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RA 


ALL  TH 


UN] 


A   DIGEST 


OF 


RAILWAY    DECISIONS. 


EMBRACING 

ALL   THE  CASES  FROM   THE  EARLIEST  PERIOD   OF  RAILWAY 
LITIGATION    TO    THE  PRESENT   TIME 

IN  THE 

UNITED  STATES,  ENGLAND  AND  CANADA. 


BY 


STEWART   RAPALJE 


AND 


WILLIAM    MACK. 


Volume  VI I 


NORTHPORT,  LONG  ISLAND,  N.  Y. : 

EDWARD  THOMPSON  COMPANY,  Law  Publishers. 

1897. 


^^ 


n^: 


^^.^^' 

•''^. 
V 


Copyright,  1897, 

BY 

EDWARD  THOMPSON  COMPANY. 


AU  righit  rettrvid. 


i 


^^ 


DIGEST 


OF 


RAILWAY     DECISIONS. 


RECITALS. 

In  bills  of  lading  as  to  condition  of  goods 
shipped,  see  Bills  of  Lading,  21,  22. 

—  deeds,  estoppel  by,  see  Estoppel,  15. 
proof  of  sales  of  similar  property  by, 

see  Eminent  Domain,  023. 
■—  —  weight  of,  as  evidence,  see  Evidence, 
264. 

—  invalid  instruments,   competency  of,   as 

evidence,  see  Evidence,  14. 

—  judgmenta,  conclusiveness  of,  see  Eminent 

Domain,  848. 

—  railway  aid  bonds,  effect  of,  see  Municipal 

AND  Local  Aid,  377-385. 
upon  negotiability,  see  Mu- 
nicipal AND  Local  Aid,  348. 

—  records  on  appeal,  sufficiency  of,  see  Ap- 

peal AND  Error,  1  lO. 

—  statutes  relating  to  live  stock,  see  Ani- 

mals, Injuries  to,  3. 

weight  of,  as  evidence,  see  Evidence, 

270. 

—  transcripts  on  appeal,  effect  of,  see  Ani- 

mals, Injuries  to,  635. 


RECOaNITION. 
Estoppel  by,  see  Estoppel,  25. 


RECOMMITTAL. 

Of  report  of  commissioners  in  condemnation 
proceeding!   see  Eminent  Domain,  801. 


RECONSIDERATION. 
Of  verdict,  see  Trial,  194. 


RFiCONVETANGE. 
Decree  for,  see  Deeds,  54. 
7  D.  R.  D.— 1 


RECORDING. 

Consent  of  city  to  use  of  street,  see  Street 

Railways,  101, 
Of  assessment  on  stock,  see  Subscriptions  to 

Stock,  65. 

—  deeds,  see  Deeds,  7-9. 

—  mortgage  of  rolling  stock,  see  Mortoages, 

51. 

—  ordinances,  see  Municipal  Corporations, 

11. 

—  proceedings  for  consolidation,  see  Consol- 

IDATION,    18. 

See  also  Registration. 


RECORDS. 

Admissibility  of  admissions  of,  see  Evidence, 

4. 
in  evidence,  see  Death  by  Wrongful 

Act,  248 ;  Elevated  Railways,  1  lO. 
Certified  copies  of  public,  as  evidence,  see 

Evidence,  227. 
Estoppel  by,  see  Estoppel,  7-12. 
Filing,  on  appeal,  see  Appeal  and  Error, 

140. 
Jurisdictional  facts  must  appear  on  face  of, 

see  Eminent  Domain,  243. 
Of  assignment  for  creditors,  see  Assignment 

for  Benefit  of  Creditors,  6. 

—  corporations  as  evidence,  see  Evidence, 

233. 

—  deeds,  effect  of,  as  notice,  see  Deeds,  8. 

—  instruments  as  best  evidence,   see  Evi* 

dence,  158. 

—  judgments  as  evidence,  tee  Animals,  Inju- 

ries TO,  438. 

—  judicial    proceedings,    admissibility  and 

effect  of,  see  Evidence,  241. 

—  as  best  evidence,    see  Evidbncb, 

155. 


^ 


RECOUPMENT— REFERENCE,  1. 


Of  land  oiBce  ai  evidence,  see  Evidence, 
229. 

—  train  dispatcher,  admissibility  and  eiTect 

of,  as  evidence,  see  Evidence,  252. 

Review  of  matters  not  apparent  on,  see  Ap- 
peal and  Error,  108-114. 

Sufficiency  of,  on  appeal,  generally,  see  Ap- 
peal and  Error,  100-114. 

What  must  appear  in,  as  to  attempt  to  agree 
with  landowner,  see  Eminent  Domain, 
280. 

—  — on  appeal,  see  Eminent  Domain, 

021-023. 


BECOTTFMENT. 

In  action  for  wages,  see  Emi>loy£s,  10. 

—  —  on  construction  contract,  see  Con- 
struction OF  Railways,  100. 

What  damages  may  be  proved  by  way  of,  see 
Set-off,  etc.,  9,  10. 


RECOVEBY  BACK. 
Of  taxes  paid,  see  Taxation,  336-341. 


BECOVEBT  OVEB. 

By  express  company  against  railway  com- 
pany, see  Express  Companies,  01. 

—  insurer  against  railway  company,  see  Ac- 

cident Insurance,  14. 

—  joint   tortfeasor    after   satisfaction,  see 
Judgment,  41. 


BEDEHPTION. 

Prom  execution,  see  Execution,  25. 

—  mortgages  on  land  condemned,  see  Emi- 
nent Domain,  141. 

—  tax  sale,  see  Taxation,  330. 

Of  mortgaged    premises,    see  Mortgages, 
310-318. 


BEDTJCTION. 

By  statute  of  compensation  for  carrying  the 
mail,  see  Carriage  of  Mails,  10. 

Of  capital  stock,  see  Stock,  30. 

—  rental  value  as  an  element  of  damages, 
see  Streets  and  Highways,  290. 


BE-EXAMINATION. 
Of  witnesses,  generally,  see  Witnesses,  77- 
80. 

BEFEBEES. 
Findings  of,  in  elevated  railway  cases,  see 
EtEVATED  Railways,  174-180. 


BEFEBENCE. 

To  ascertain  damages  for  infringement  of 
patents,  see  Patents  for  Inventions, 
22. 

—  master  in   foreclosure,  see    Mortgages, 
202. 
See  also  Arbitration  and  Award. 

1.  Wlicu  ordered.  —  Upon  trial  of 
an  action  to  restrain  defendant  from  operat- 
ing an  elevated  railroad  in  a  street  in  front 
of  plaintiff's  premises,  after  hearing  proof 
in  regard  to  plaintiff's  title,  etc.,  the  court, 
against  defendant's  objection,  appointed  a 
referee  to  take  testimony  as  to  tlie  value  of 
any  easements  and  property  taken,  appro- 
priated or  interfered  with  by  defendant,  and 
as  to  the  amount  of  the  rental  loss,  if  any, 
and  to  report  the  same  with  his  opinion 
thereon  ;  but,  as  to  the  value  of  the  ease- 
ments, the  referee  was  directed  to  estimate 
only  the  impairment  of  light,  air,  and  access. 
Held,  that  the  court  had  no  power  to  direct 
a  compulsory  reference  for  the  purpose 
stated ;  and  that  the  order  was  errone- 
ous. (Gray,  J.,  dissenting.)  Doyle  v.  Met- 
ropolitan El.  R.  Co.,  136  N.  Y.  505,  32  N. 
E.  Rep.  1008, 49  A^.  Y.  S,  R.  746  ;  affirming  I 
Misc.  376,  29  Abb.  N.  Cas.  272, 49  A^.  Y.  S. 
R.  1 18.  20  A^.  K5«//.  865. 

Action  was  brought  to  recover  damages 
for  breach  of  contract  by  which  defendant 
leased  to  plaintiffs  its  franchises  and  rights 
to  construct  and  operate  a  street  railroad 
and  covenanted  to  secure  the  necessary  con- 
sents to  enable  plaintiffs  to  construct  a  ca- 
ble road.  The  complaint  alleged  that  in 
order  to  enable  plaintiffs  to  fulfil  their  con- 
tract it  was  necessary  for  them  to  expend 
large  sums  of  money  in  the  purchase  of  real 
estate,  machinery,  cars,  etc.,  and  in  hiring 
employes  and  other  expenses ;  that  by  rea- 
son of  defendant's  failure  to  obtain  the  con- 
sents, the  enterprise  contemplated  by  the 
agreement  became  abortive  to  plaintiffs' 
damage  of  $300,000.  Held,  that  the  action 
did  not  involve  the  examination  of  a  long 
account  within  the  meaning  of  N.  Y.  Code 
of  Civ.  Pro.,§  1013;  and  that  the  granting  of 
a  compulsory'  order  of  reference  was  error, 
Johnson  w.  Atlantic  Ave.  R.  Co.,  it,^  N.  Y. 
449,  34  A^.  E.  Rep.  925,  54  A'.  Y.  S.  R.  705 ; 
reversing  51  A^.  Y.  S.  R.  188,  21  A''.  Y. 
Supp.  1056,  67  Hun  649,  mem. 

Where  the  claim  of  plaintiff  includes  rent 
and  numerous  violations  of  the  covenants 
of  the  lease  of  a  railroad  resulting  in  dam- 


REFERENCE,  2-4. 


8 


ages,  the  fact  that  defendant  files  a  counter 
claim  for  $5000  for  services  and  expenses  In 
obtaining  a  right  of  way  for  the  road  does 
not  prevent  a  compulsory  reference  under 
N.  Y.  Code  of  Civ.  Pro.,  §  974,  providing  for 
a  reference  in  cases  which  involve  the  ex- 
amination of  long  accounts.  Brooklyn  &* 
R.  B.  R.  Co.  v.  Keid,  21  Hun  (JV.  V.)  273. 

The  transfer  agent  of  any  corporation 
existing  beyond  the  jurisdiction  of  the  state 
is  required  at  all  reasonable  times  during 
business  hours  to  exhibit  to  any  stockholder 
the  transfer  books  of  such  corporation,  and 
a  list  of  the  stockholders  thereof,  if  in  his 
power  to  do  so ;  but  where  a  stockholder 
applies  for  a  muiidamus  to  compel  the  in- 
spection of  books,  the  court  may  order  a 
reference  to  take  proof  of  the  facts  alleged 
in  the  affidavits  filed  by  the  respondents, 
and  direct  the  persons  making  the  :iame  to 
appear  before  the  referee  for  examination, 
if  the  court  desires  fuller  information. 
People  ex  ret.  v.  St.  Louis  6-  S.  F.  R.  Co., 
44  Hun  552,  7  N.  y.  S.  R.  415,  19  AM.  JV. 
Cas.  I. 

In  an  action  to  wind  up  the  aflfairs  of  an 
insolvent  railroad  corporation,  in  which 
different  classes  of  creditors  embracing,  it 
may  be,  many  individuals,  have  been  made 
parties  by  publication,  an  order  directing  the 
receiver  to  change  the  location  of  a  part  of 
the  road  and  build  a  bridge  with  the  income 
of  the  corporation  should  not  be  made 
upon  the  recommendation  of  a  receiver  and 
the  report  of  an  engineer,  but  only  upon  the 
report  of  the  master  showing  that  necessity 
for  the  change  exists.  Hand  v.  Savannah 
&*  C.  R.  Co.,  10  So.  Car.  406. 

The  whole  transaction  connected  with  the 
closing  of  an  account  by  note  being  in  writ- 
ing and  set  forth  in  the  pleadings,  there  is 
no  error  in  passing  upon  a  petition  to  have 
such  account  paid  out  of  the  receiver's  fund 
without  ordering  a  reference  to  take  testi- 
mony. Ex  parte  Williams,  12  Am.  &*  Eng. 
R.  Cas.  425,  17  So.  Car.  396. 

2.  Qualifications  of  referees.  —  A 
defendant  railroad  company  objected  to  the 
report  of  a  committee  filed  in  certain  litiga- 
tion, because  the  committee's  wife  was  a 
stockholder  in  an  incorporated  bank  which 
had  stock  in  the  railroad  as  security  for  a 
loan.  Held,  that  neither  the  committee 
nor  his  wife  was  so  far  a  party  to  the  suit 
as  to  disqualify  him.  A  suit  by  or  against 
a  corporation  does  not  make  the  stockhold- 
ers parties.    But  the  committee  had  such 


an  interest  in  the  result  of  the  suit  as  to 
disqualify  him,  if  the  objection  had  been 
made  in  time.  Windham  Cotton  Mfg.  Co, 
V.  Hartford,  P.  <S-  F.  R.  Co.,  23  Conn.  373. 

In  such  case  where  there  is  nothing  to 
show  that  the  interest  of  the  committee  was 
not  known  to  thecompanyatthetimeof  his 
appointment,  a  failure  to  object  until  after  his 
report  is  filed,  is  a  waiver  of  the  objection, 
and  his  report  will  be  accepted.  Windham 
Cotton  Mfg.  Co.  v.  Hartford,  P.  &*  F.  R. 
Co.,  23  Conn.  373. 

3.  Authority  aud  powers  of  tlie 
referees.  —  A  construction  contract  re- 
served the  right  to  the  company  to  alter  the 
line  of  the  road  or  the  grades,  without  extra 
compensation  to  the  contractor,  if  the  en- 
gineer decided  such  changes  were  necessary. 
Held,  that,  where  such  matter  is  referred  to 
a  referee,  it  is  within  his  authority  to  allow 
extra  compensation  for  alterations  involving 
large  expense  to  the  contractor.  Porter  v. 
Buckfield  Branch  R.  Co.,  32  Me.  539, 

And  in  such  case  where  the  company  re- 
served the  right  to  substitute  piling  instead 
of  an  embankment,  an  extra  allowance  to 
the  contractor,  where  the  change  increased 
the  expense,  was  not  above  the  authority  of 
the  referee.  Porter  v.  Buckfield  Branch  R, 
Co.,  32  Me,  539. 

And  where  the  submission  of  such  case 
to  the  referee  provides  that  he  shall  take 
the  contract  between  the  parties  as  the  basis 
of  a  settlement,  and  the  contract  requires 
that  a  portion  of  the  work  shall  be  paid  in 
the  stock  of  the  company,  it  is  not  beyond 
the  authority  of  the  referee  to  ascertain  the 
amount  thus  payable,  and  to  direct  that  cer- 
tificates for  the  same  shall  be  issued  to  the 
contractors.  Porter  v.  Buckfield  Branch 
R.  Co. ,  32  Me.  539. 

4.  Sufficiency  of  their  report.— 
Where  a  party  intervenes  in  a  chancery  pro- 
ceedingand  files  a  claim  for  a  personal  injury, 
the  finding  of  the  master  on  a  question  of  fact 
will  be  treated  much  as  the  verdict  of  a 
jury  ;  and  where  the  evidence  is  conflicting 
the  finding  of  the  master  as  to  just  how 
the  injury  was  caused,  which  is  based  upon 
the  evidence  of  a  single  eyewitness,  will  not 
be  disturbed,  though  there  is  considerable 
other  evidence  tending  to  support  a  differ- 
ent theory.  Central  Trust  Co.  v.  Wabash, 
St.  L.  A-/*.  R.  Co.,  31  Fed.  Rep.  246.  Mis- 
souri Pac.  R.  Co.  v.  Texas  &>  P.  R.  Co.,  33 
Fed.  Rep.  803. 

Interveners,  a  husband  and  wife,  filed  a 


k 


REFERENCE,  B-7.— REFRESHMENT  ROOMS,  1. 


claim  for  damages  f(jr  personal  injuries  re- 
ceived by  (ailing  o(T  a  platform  at  night  just 
after  leaving  a  train.  The  evidence  showed 
that  they  had  safely  alighted  on  the  plat- 
form, and  in  their  search  for  fi  iends  came 
near  the  edge  of  the  platform,  wlicn  a  rail- 
way official  warned  them  of  their  danger, 
when  they  turned  back  for  a  moment,  but 
immediately  returned  to  the  same  place  and 
walked  ofl  tlic  platform.  The  report  of  the 
master  only  referred  to  the  warning  as  being 
insidficient.  //t/if,  that  as  the  rij^ht  to  re- 
cover depended  directly  upon  the  suiriciency 
of  the  warning  and  of  tne  conduct  of  the 
interveners,  the  report  should  be  recommit- 
ted to  the  master  for  a  further  hearing. 
Missouri  Pac.  A'.  Co.  v.  Te.viis  G^  J',  A'.  Co., 
33  Jhi.  Rf/>.  359. 

In  an  action  to  recover  damages  for 
breach  of  an  agreement  to  pay  over  the 
earnings  of  a  certain  line  of  telegraph  dur- 
ing a  period  of  years,  the  re[)ort  of  arefer-c 
giving  the  sum  in  gross  for  each  otTice  on 
the  line  to  which  the  i)lainti(I  is  entitled 
will  not  be  set  aside  for  failure  to  give  the 
annual  earnings  of  each  office,  or  the  aver- 
age annual  receipts  of  two  or  more  of  them. 
Pittsburgh  &*  C.  A'.  Co.  v.  S/iaw,  (Pa.)  36 
Am.   &>  Eng.    R,   Cus.  453,    14  At/.   Rep, 

323- 

5.  Filing  report.— The  mere  failure  of 
a  referee  to  fde  his  report  within  the  time 
fixed  in  the  order  of  reference  does  not  in- 
validate it.  Dietrichs  v.  Lincoln  Sf  N.  \V. 
R.  Co..  13  Ned.  43,  13  N.  IV.  Rep.  13. 

O.  Eiitcriii{;r  jiidfriiiuiit  iiiioii  re- 
port.— In  a  reference  to  take  proof  of 
claims  in  foreclosure  of  a  railway  mortgage, 
where  a  bondholder  fails  to  except  to  ilic 
master's  report  for  not  including  certain  in- 
terest coupons,  he  should  not  be  heard  to 
urge  the  omission  as  an  objection  to  the 
final  decree.  Coghlan  v.  South  Carolina  R, 
Co.,  51  Am.  6-  Eng.  R.  Cas.  79,  142  U.  S. 
loi,  12  Sup.  Ct.  Rep.  150. 

Where  plaintiff's  claim  is  based  upon  de- 
fendant's negligence,  and  a  referee  finds  as 
a  fact  that  negligence  existed,  the  report 
will  warrant  a  judgment  for  plaintiff.  Top- 
pan  v.  Eastern  R.  Co.,  6\  N.  H.  640. 

7.  Removal  of  referee.— Referees  are 
under  the  control  of  the  court  at  all  times, 
and  may  be  removed  in  its  discretion  for 
cause  shown  ;  but  they  will  not  be  sum- 
marily removed  without  some  substantial 
legal  ground  calling  for  the  exercise  of  the 
summary  power  of  discipline.     Goldberger 


v.  Manhattan  R.  Co.,  3  Misc.  441.  52  N.  Y. 
S.  R.  320,  23  A'.  Y.  Supp.  176. 

The  removal  of  the  referee  in  an  action 
against  defendant  elevated  railway  com|)any 
was  demanded,  because  in  certain  proceed- 
ings by  other  parties  against  defendant  he 
received  from  defendant  his  per  diem  as 
referee  at  the  end  of  each  month,  and  be- 
cause he  brought  an  action  against  one  II. 
to  recover  his  fees  as  referee  in  an  at  lion 
prosecuted  by  the  attorneys  for  plain  tills 
herein,  who  were  also  the  attorneys  for  tl. 
Held,  that  an  order  declining  to  remove  the 
referee  should  be  affirmed,  with  costs.  As 
the  referee  was  appointed  on  the  nomina- 
tion of  plaintifTs'  attorneys  and  by  the  con- 
sent of  all  [jarlies,  and  with  knowledge  of 
the  practice  as  to  the  payment  of  referees' 
fees  in  elevated  railway  cases,  there  was  no 
force  in  the  first  objection.  The  second  ob- 
jection furnished  no  just  ground  for  in)put- 
ing  bias  or  unfriendly  relations  between 
plaiiitiUs'  attorneys  and  the  referee.  Gold- 
berger V.  Manhattan  R.  Co.,  3  Misc.  441,  5a 

N,  y.  s,  R.  320, 23  N.  y.  Supp.  176. 


REFORMATION. 

Of  contract,  see  Equity,  21. 

—  deeds,  see  Deeds,  53, 

—  errors    in    receiver's    account,    see    Re- 
ceivers, 155. 

—  insurance  policy,  see  Fire  Insurance,  lO. 


REFRESHING  THE  MEMORY. 

Admissibility  of  memoranda  used  for,  as  evi- 
dence, sec  Evidence,  232. 


REFRESHMENT  ROOMS. 

Rights  of  passengers  at,  see  Carriage  of 
Passengers,  iiih 

1.  Uiglits  of  tenant  In  use  of.— One 
who  erects  a  depot  and  eating  house  upon 
the  land  of  a  railroad  company,  under  con- 
tract for  mutual  occupation  and  use,  may  sue 
for  breaches  of  the  contract,  but  cannot  seek 
a  rescission  of  it  and  a  recovery  of  the  cost  of 
the  building  upon  the  quantum  meruit  un- 
less there  be  a  covenant  of  purchase.  A  re- 
served right  to  purchase  does  not  create  an 
obligation  to  do  so.  Toledo,  JV.  &>  IV.  R. 
Co.  V.  Jacksonville  Depot  Bldg.  Co.,  63  ///. 
308. 

Where  there  is  nothing  in  a  lease  as 
to  how   the    premises    shall   be    used,    it 


REFRESHMENT   ROOMS,  2,  3.— REGULATION. 


does  not  Rive  the  privilege  to  the  leasee  of 
making  any  use  thereof  that  he  sees  fit,  but 
lie  has  a  right  to  "enjoy  tiie  premist-s  ac- 
cording to  the  use  for  whicli  it  was  intenfled 
by  the  lease."  So  AM,  where  lessee  used 
premises  for  coffee-room  and  bar-room. 
Aew  Orleans  &'  C.  A'.  Co.  v.  Darms,  39  La. 
Ann.  766,  2  So.  Rep.  230. 

2.  Agrecnioiit  to  stop  trniiiN  at.— 
Where  a  postmaster-general  requires  a  rail- 
way company  to  run  a  ;rain  carrying  mails 
at  a  certain  hour  and  to  stop  at  a  certain 
station  for  five  minutes  only,  such  train  is  a 
train  "  not  under  the  control  of  the  com- 
pany "  within  the  meaning  of  the  agree- 
ment between  the  conip.  uy  and  the  builders 
of  refreshment  rooms  at  such  station,  where- 
by all  trains,  except  those  not  under  the 
control  of  the  company,  and  certain  others, 
were  to  stop  for  ten  minutes.  Phillips  v. 
Great  Western  R.  Co.,L.  R.  7  Ch.  409,  41  L. 
J.  Ch.  614,  26  L.  T.  532,  20  W.  R.  562. 

3.  ObHtriicting  accc8H  to.  —  A  com- 
pany had  several  tracks  between  its  passen- 
ger depot  and  an  eating  house  of  a  party, 
and  trains  were  made  up  at  that  station,  so 
that  it  was  dangerous  for  persons  to  cross 
over  to  the  eating  house.  Held,  that  the 
company  was  not  liable  to  the  proprietor  of 
tiie  house  for  leaving  freight  and  other  cars 
on  its  side  track,  so  as  to  make  it  difficult 
for  passengers  to  cross  over  to  his  house. 
The  company  is  not  obliged  to  keep  open 
an  unobstructed  way  for  the  passage  of  per- 
sons to  and  fro  across  its  track,  for  the  ac- 
commodation of  the  private  business  of  an 
individual ;  and  the  obstruction  was  a  law- 
ful means  to  adopt  for  the  safety  of  passen- 
gers, and  to  protect  itself  from  'iahility  for 
injury  to  others  in  crossing.  Disbrow  v. 
Chicago  &>  N.  IV.  R.  Co.,  70  ///.  246. 


REFUNDING. 

Amount  received  on  setting  aside  accord,  see 

Accoiu)  AND  .SArisi'AcrioN,  7. 
Of  excessive  rates,  see  Interstate  Com.mercb, 

171. 

—  illegal  tax,  see  Taxation,  331. 

—  money  on  lost  ticket,  see  Tickets  and 

Faues,  (JO. 

paid  upon  refusal   to  honor  through 

ticket,  see  Tickkps  ani>  Fares,  107. 


REGISTRATION. 

Of  bonds  as  shares  to  enable  holder  to  vote, 
sec  HoNUS,  43. 

—  charters,  see  Charteks,  il. 

—  condemnation  proceedings,  see  Eminent 

Domain,  245. 

—  debentures,  see  Deiirntcres,  8. 

—  deeds,  see  Deeds,  7-1>. 

of  trust,  see  Heeds  of  Trust,  3. 

—  mortgages,  sec  Mortga  .1    ,  CIrt,  00,  09. 

—  order  of  confirmation  of  report  of  commis- 

sioners, see  Eminent  Domain,  708. 

—  railv7ay  aid   bonds    see   Municipal   and 

Local  Aid,  314  .  .i35. 

—  voters  at  election  on  question  jf  aid  to 

railways,  see  I«.  ijnich'al  ..  u  Local  Aid, 
120. 


REGULARITY. 

Of  election  in  aid  of  railway,  who  may  ques- 
tion, sec  Municipal  and  Local  Aid^ 
104. 


REFUSAL. 

Of  consignee  to  receive  or  unload  goods, 
effect  of,  'ce  Cakhiac.e  of  Mkkciiandise, 
230-215. 


REGULATION 

By  states  of  interstate  carriers  or  traffic,  se« 
Interstate  Commer(  c,  21 5-221). 

—  statute  or  ordinance  as  to  rate  of  speed, 

see  Streets  and  Hiohv/ays,  317-331. 
Of  cable  railway  by  city  ordinance,  sec  C  ablb 
Railways,  O. 

—  charges,  see  Mandamus,  1 7. 

—  -  by  legislature,  see  Cihuges,  4-1  O. 
state,  see  Winona  &  St.  P.  R.  Co., 

1. 

for  storage  in  elevators,  see  Elevators, 

5. 

—  cities  as  to  hacks  at  stations,  see  Hacks 

AND  Mack  Lines,  4. 

—  commerce  by  statutes,  see  Statutes,  22» 

23. 

—  construction  of  roads  by  statute,  see  Con- 

struction OK  Railways,  2. 

—  depots,     side  tracks,     etc.,    by    commis- 

sioners,   see    Railway     Commissioners, 
18,  10. 

—  highway  and  railway  crossings  by  com- 

missioners, see  Railway  Commissioners, 
20-24. 

—  other  companies,  admissibility  of  evidence 

of,  see  Evidence,  78. 

—  passenger  carriers,  see  Carriage  of  Pas- 

sengers, 00-88. 

fares,  see  Tickets  and  Fares,  1 10- 

110. 

—  rates  and  fares  by  railway  commissioners, 

see  Railway  Commissioners,  7-17. 

—  relief  associations,  evidence  of,  see  Relief 

Associations,  3> 


k 


6  REHEARING— RELEASE,  1-S. 

Of  speed  at  croMings  in  dUee.  see  Neoli-  Of  cauee  of  action  for  causing  death,  by  de. 

GBNCE,  28-31.  ceased  in  his   lifetime,  see  Death  by 

—  tteam  roads  in  streets  by  statutes  and  Wrongful  Act,  169. 

ordinances,  see  Stkekts  and  Highways,  —  cHim  for  personal  injuries  to  wife,  see 

200-350.  Hi'suAND  AND  Wife,  4. 

—  street  railways  by  ordinance,  see  Street wages,  see  Employes,  16. 

Railways,  250-277.  —  damages  to  other  property  of  grantor  by 

statutes,  see  Street   Railways,  conveyance  of -.ight  of  way,  see  Eminent 

255-258.  Domain.  220. 

—  telegraph  lines,  see  Union  Pacific  R.  Co..  -  garnishee,  sec  Attachment,  etc.,  62. 

^^  —  interest  of  witness,  see  Witnesses,  18. 

—  tolis  by  statute,  see  Bridges,  etc.  94.  —  "ability  for  stock  killed,  see  Animals,  In- 

—  tramways  by  cities,  see  Tramways,  5.  juries  to,  387. 

—  mortgages,  see  Mortgages,  309. 

REHEARING  "~  "^^^  °^  ''*^'  •'*"'*'■  "'  personal  repre- 
sentative to  give,  see  Executors  and  Ad- 

Before  commissioners  in  condemnation  pro-  ministrators  9. 

ceedings,  see  Eminent  Domain.  801.  _  subscriber  to  stock  as  a  defense  to  action 

Of  proceedings  before  mterstate  commerce  ^„   subscription,    see    Subscriptions  to 

commission,   see  Interstate  Commerce,  Stock    167. 

*®"'  by  abandonment  of  enterprise,  see 

WTWDTTVeXiWDWrP  SUBSCRIPTIONS  TO  STOCK,   114,   115. 

BEIMBURSEMEBT.  Transfer  of  right  of  way  by,  see  Eminent  Do- 

Of  agents,  for  expenditure,  see  Agency,  36.  main,  222. 

—  expenditures  by  civil  engineer,  see  Con-  ^wpwat  pwtwptptph                           A 

STRUCTION  OF  RAILWAYS,  54.  *•  OEHEBAL  PKIHCIFLEB 6 

II.  BY   INJURED    PA8SEN0EB II 

REINSTATEMENT.  "^-  "'  INJURED  EMPLOYE 13 

-.,     ,.  -  J  .  J  ^  ,  An  IV.   BY  lAHDOWNEE 14 

Of  satisfied  judgments,  see  Judgment,  40. 

—  street  or  highway  after  discontinuance,  I.   OENERAI    FBINCIPLES.* 

see  Streets  and  Highways,  33.  j.  ^j.^t  constitutes-Covenant  not 

to  sue. -A  covenant  perpetual  not  to  claim 

REJOINDER.  damages  will  be  construed  to  be  a  release  if 

When   proper,   form,    sufficiency,   etc.,  see  necessary  to  give  effect  to  the  intention  of 

Pleading,  80.  the  parties.    The  principle  on  which  this 

construction    rests  is   to   avoid  circuity  of 

RELATIONSHIP.  action— the  damages  recovered  by  the  cove- 
Degree  of,   between  plaintiff   and   person  nantor  in  his  suit  being  the  same  as  the 
killed  unimportant  in  assessing  damages,  covenantee  would  recover  back  in  an  action 
see  Death  by  Wrongful  Act.  384.  for  the  breach  of  the  covenant.     Costi^an  v. 
Of  person  killed  to  plaint:.!,  allegation  of,  in  Pennsylvania  R,  Co.,  54  A^.  /.  L.  233, 23  Atl. 
complaint,  see  Death  by  Wrongful  Act,  d^ep,  810. 

130»  2.  Form  of  the  release.— Whether  a 

receipt  "  in  full  for  all  damages  or  injuries 

RELEASE.  resulting  from  said  accident  to  us,  or  either 

Acquiringtitletoright  ofway  by,  see  Right  of  us,  or  to  our  children,"  attached  to  a 

OF  Way,  6.  statement  of  account  in  the  form  of  a  bill. 

By  father  of  minor  child  killed,  see  Death  by  reciting  the  accident,  and  signed  by  plaintiff 

Wrongful  Act.  171.  and  her  husband,  would,  in  the  absence  of 

~    W^^GFUL^cTT7S"'''•  "'  '''*'"  ""^  ^^^"'^  °'  ^"y  ^""«  impeaching  its  validity. 

nlrJTIfA.^  J^?'  •  •    •      .    ^  .    .  *"=  »"  ^bsolutc  bar  to  plaintiff's  right  of 

—  parent  of  damages  for  injuries  to  infant  «-.;-*     »i.    •   •                          .,.  ,  .        ^ 
\^^i^.^i.          %■          '  '    ,       "  ""«"«  action  for  the  injury — aucere.     Michieran  C. 

employe,  see    Employes,    Injuries    to,  d  n„    ,    n     i             V,  •  T     „"'"*""  *" 

409,                                       '                '  E.  Co.  v.  Dunham,  30  Mich,  128. 

From  plaintiff  as  a  defense  to  action  for  flow-  P*  ^'•'*   "'^^^    ^*^®'    Kener»"y.-A 

ing  land,  see  Flooding  Lands,  01.  release  executed   by  the   shipper,    not    by 

~  tenant  to  landlord,  effect  of.  on  right  to         .  „  1 7~. ;: 

jue  elevated  railway,  see  Elevated  Rail-  .ee  n'ot!  VL'.^riNo.' R.  S"^6  '^^^ 

WAYS,  W4,  jjj  .  ^g  jj  ^j                                                               V 


RELEASE,  4-d. 


.  by  de« 

!ATH    BY 


6 
II 

'3 
14 


'3 


authority  or  on  behalf  of  the  consignee,  is 
no  defense  to  an  action  by  the  latter  for  an 
injury  to  the  property  shipped.  Cream  City 
R.  Co.  V.  Chicago,  M.  &*  St.  P.  R.  Co.,  2i 
Am.  (&-  E»g.  R.  Cas.  70,  63  IVis.  93,  23  N. 
W.  Rep.  425,  S3  Am.  Rep.  267. 

4.  Mental  capacity.— If  a  party  not 
insane  seeks  to  avoid  a  release  of  a  claim 
for  damages  against  a  railway  given  by  her 
while  her  mental  faculties  were  temporarily 
impaired,  the  burden  of  proof  is  upon  her 
to  show  the  mental  incapacity,  and  not  upon 
the  other  party  to  show  that  her  mind  was 
not  impaired.  Chicago  W.  D.  R.  Co.  v. 
Mills,  91  ///.  39.— Quoting  Lilly  v.  Wag- 
goner, 27  111.  397. 

The  plaintiff  executed  a  release  to  the 
company  of  all  her  claim  against  it.  Held, 
that  the  jury  were  properly  instructed  that 
if  plaintiff  did  not  have  sufficient  intelli- 
gence at  the  time  of  executing  the  release  it 
was  not  binding  upon  her.  Chicago  W.  D. 
R.  Co.  V.  Mills,  II  Am.  Sf  Eng.  R.  Cas.  128, 
105  ///.  63. 

Defendant  set  up  a  release  executed  by 
plaintiff  LOon  after  the  injury;  there  was 
testimony  showing  that  plaintiff,  at  the  time 
he  signed  the  release,  was  mentally  incom- 
petent to  appreciate  the  character  of  the 
instrument.  Held,  that  the  question  as  to 
the  validity  of  the  release  was  properly  left 
to  the  jury.  Dixon  v.  Brooklyn  City  <S>»  N. 
R.  Co.,  26  Am.  &*  Eng.  R.  Cas.  203,  100  N. 
V.  170,  3  A^.  E.  Rep.  6'j. 

Plaintiff  testified  that  he  had  no  recollec- 
tion of  ever  signing  a  certain  release,  or 
agreeing  to  any  compromise,  and  pleaded 
that  he  vas  non  compos  mentis  when  he 
signed  it.  The  evidence  w.is  conflicting, 
and  from  all  the  testimony  the  jury  might 
well  have  concluded  that  such  was  plaintiff's 
condition  when  he  signed  the  release.  Held, 
that  a  verdict  for  plaintiff  will  not  be  dis- 
turbed. Texas  &'  P.  R.  Co.  v.  Crow,  3  Tex. 
Cm.  App.  266,  22  S.  W.  Rep.  928. 

All  the  conversations  pertinent  to  the 
alleged  release,  which  occurred  at  the  time 
of  its  execution,  are  admissible  as  tending 
to  throw  light  on  the  mental  capacity  of 
plaintiff  at  the  time.  Missouri  Pac.  1:.  Co. 
V.  Brazsil,  72  Tex.  233.  10  S.  IV.  Rep  403. 

6.  Person  uiuler  influence  of  drugs 
and  opiates.— If  a  person,  while  under  the 
influence  of  opiates  to  such  an  extent 
as  to  be  incapacitated  to  contract,  is  in- 
duced to  execute  a  release  of  damages  for 
a  personal  injury,  it  wiil  not  be  obligatory 


upon  him,  and  will  be  no  defense  to  an 
action  brought  by  him.  Chicago,  R.  I.  &* 
P.  R.  Co.  V.  Lewis,  19  Am.  &»  Eng.  R.  Cas. 
224,  109  ///.  120;  affirming  \-i  III.  App.  \fA. 

Such  a  release  is  voidable,  and  not  a 
defense  to  an  action.  Chicago,  R.  I.  &>  P. 
R.  Co.v.  Doyle,  18  Kan.  58,  15  Am.  Ry. 
Rep.  187.— Distinguished  in  Gulliher  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  59  Iowa  416. 

O.  Infants.- An  infant's  release  of  a  de- 
mand against  a  railroad  company  for  per- 
sonal injuries  is  voidable  at  his  election,  and 
the  bringing  of  suit  upon  the  demand  is  an 
unequivocal  disaffirmance  of  the  release. 
St.  Louis,  I,  M.  &*S.  R.  Co.  v.  Higgins,  21 
Am.  5»  Eng.  R.  Cas.  629, 44  Ark.  293. 

A  minor  releasing  a  company  from  lia- 
bility on  consideration  of  a  cork  leg  being 
furnished  him  is  not  bound  by  such  con- 
tract beyond  accounting  for  the  value  of  the 
artificial  leg  furnished.  Bonner  v.  Bryant, 
79  Tex.  540,  155.  W.  Rep.  491. 

7.  Married  women.  — A  release  of 
damages  executed  by  a  married  woman, 
without  her  husband  joining  her,  does  not 
bind  her.  Delaware,  L.  &*  W.  R.  Co.  v. 
Burson,  61  Pa.  St.  369.— Following  Glid- 
den  V.  Strupl6r,  52  Pa.  St.  400. — Mayberry  v. 
Second Sf  T.  St.  R.  Co.,i^  Phila.  (Pa.)  253. 
—Following  Delaware,  L.  &  W.  R.  Co.  v. 
Burson,  61  Pa.  St.  369. 

A  married  woman,  since  the  Married 
Woman's  Act  of  1875  (Mo.  Rev.  St.,  §  3296), 
can  execute  a  valid  release  of  damages  for 
injuries  to  her  person,  without  joining  her 
husband  in  the  release.  Blair  v.  Chicago 
&*  A.  R.  Co.,  89  Mo.  383,  I  5.  W.  Rep.  350. 
—Referred  to  in  Blair  v.  Chicago  &  A. 
R.  Co.,  89  Mo.  334. 

The  principles  of  private  international 
law  are  a  part  of  the  common  law  in  the 
District  of  Columbia ;  therefore,  if  by  the 
laws  of  any  state  certain  movables  belong 
to  a  wife  domiciled  there,  as  absolutely  as  if 
she  were  unmarried,  that  law  must  be  ap- 
plied here  to  any  movable  actually  here. 
But  this  principle  does  not  apply  to  a  right 
of  action  for  an  injury  to  the  person,  and  a 
release  by  a  married  woman  domiciled  else- 
where, of  a  right  of  action  therefor,  is  a 
nullity  here.  Snashall  v.  Metropolitan  R. 
Co.,  8  Mackey  (D.  C.)  399. 

8.  Validity  and  effect,  generally.— 
A  release  of  a  claim  for  personal  injuries, 
the  effect  of  which  is  understood  when 
agreed  to,  is  binding,  although  the  releasor 
had  sustained  serious  injuries  of  which  he 


^ 


8 


RELEASE,  9,  10. 


had  no  idea  at  the  time  he  entered  into  tlie 
arrangement.  Rideal  v.  Great  Western  R. 
Co.,  I  F.S'  F.  706. 

Plaintiff  shipped  goods  over  defendant's 
road,  through  agents,  who  gave  a  release  to 
the  company  for  any  damages  that  might 
occur  in  transportation.  There  was  no 
evidence  that  the  agents  riisclosed  their 
principal.  HeM,  that  the  company  was 
authorized  to  consider  the  agents  as  the 
principal,  in  which  case  the  release  was  a 
protection  ;  and  plaintiff  having  recognized 
the  agency  by  claiming  the  benefit  of  the 
contract  and  suing  on  it,  was  equally  affected 
by  the  release.  McCaiin  v.  Baltimore  &* 
O.  R.  Co..  20  Md.  202. 

The  mere  acceptance  by  a  street-car  com- 
pany of  a  release  of  all  causes  of  action 
from  a  person  who  claims  to  have  been  in- 
jured by  the  negligence  of  a  driver,  is  not 
an  admission  of  the  company's  liability. 
At  most  it  is  but  an  admission  that  the  per- 
son had  made  a  claim  that  the  company 
was  liable.  Baldwin  v.  New  York  C.  »5-  H. 
R.  R.  Co.,  2  A^.  Y.  Supp.  481,  18  N.  Y.  S. 
R.  958. 

After  an  action  has  been  commenced  and 
counsel  employed,  no  release'obtained  from 
the  plaintiff,  in  the  absence  and  without  the 
consent  or  knowledge  of  his  counsel,  should 
be  held  valid,  unless  the  utmost  good  faith 
is  shown  on  the  part  of  the  defendant  in 
obtaining  the  same.  Bussian  v.  M.lwattkee, 
L.  S.  6-  W.  R.  Co.,  10  Am.  &-  Eng.  R.  Cas. 
716,  56  Wis.  325,  14  A'.  W.  Rep.  452. 

0.  Coucliisiveness  — What  claims 
are  barred. — Where  one  who  has  sundry 
claims  or  demands  against  another,  upon 
settlement,  executes  to  him  a  release  and 
discharge  "from  all  claims  and  demands  of 
every  name  and  nature  "  which  he  holds 
against  him,  such  release  will  cover  all  arti- 
cles of  property  known  by  the  releasor  at 
the  time  to  be  held  and  claimed  by  the  re- 
leasee as  his  own.  Little  Rock  &•  Ft.  S.  R. 
Co.  V.  Page,  7  Am.  &*  Eng.  R.  Cas.  36,  35 
Ark.  304. 

A  release  of  all  claim  for  damages  grow- 
ing out  of  a  personal  injury,  if  fairly  obtained 
by  the  agents  of  a  company,  and  iinder- 
standingly  executed  by  the  plaintiff,  is  a 
bar  to  an  action  to  recover  for  such  injury. 
Chicago,  R.  I.  &*  P.  R.  Co.  v.  Leu'is,  19 
Am.  &*  Eng.  R.  Cas.  224,  109  ///.  120; 
affirming  13  ///.  Ai>p.  166. 

In  an  action  against  a  company  for  failure 
to  comply  with  its  contract  (made  in  com- 


pensation for  injuries  received)  in  not  pay- 
ing plaintiff  for  services  rendered  under 
such  contract,  it  appeared  that  plaintiff  exe- 
cuted a  release  for  a  sufficient  consideration 
covenanting  not  to  sue,  and  discharging 
defendant  from  all  further  liability.  Held, 
to  be  a  sufficient  bar  to  an  action  for  a  bal- 
ance unpaid  for  services  rendered  under 
said  contract  since  the  injury  was  received. 
White  V.  Richmond  6-  D.  R.  Co.,  no  A'^ 
Car.  456,  \lS.E.  Rep.  197. 

A  release  partakes  of  the  nature  of  a 
deed,  and  is  not  susceptible,  unless  fraud  or 
mutual  mistake  be  set  up,  of  contradiction 
or  variation  by  parol.  Texas  &•  P.  R.  Co. 
V.  Burke,  i  Tex.  App.  {Civ.  CaJ.)  531. 

While  plaintiff  was  suffering  from  injuries 
received  in  a  collision  on  the  railroad  of  de- 
fendant, the  agent  of  the  latter  procured 
him  to  execute,  in  consideration  of  $50,  a 
release  under  seal  of  all  claims  against  de- 
fendant by  reason  of  his  property  being 
destroyed  at  the  time  of  the  collision,  and 
also  for  personal  injuries  received  at  that 
time.  The  jury  found  that  the  release  for 
the  injuries  was  not  talked  about  during 
the  negotiations,  and  that  neither  plaintiff 
nor  the  agent  understood  that  the  release 
covered  such  injuries.  The  value  of  the 
property  destroyed  exceeded  $50.  The  re- 
lease was  not  read  to  plaintiff,  who  was  sick 
in  bed,  and  when  handed  to  him  he  tried  to 
read  it  but  could  not  by  reason  of  dizziness 
caused  by  the  injuries.  Held,  that  the  release 
as  to  the  personal  injuries  was  not  binding, 
and  plaintiff's  ignorance  of  its  contents  was 
not  the  result  of  such  negligence  as  would 
preclude  him  from  avoiding  it.  Lusted  v. 
Chicago  &^  N.  W.  R.  Co.,  71  Wis.  391,  36  A'. 
JF.  Rep.  857.— Following  Schultz  v.  Chi- 
cago &  N.  W.  R.  Co.,  44  Wis.  638;  Bussian 
V.  Milwaukee,  L.  S.  &  W.  R.  Co.,  56  Wis. 
326. 

10.  Release  of  one  of  two  or  more 
joiiit  tortfeasors.*— A  party  receiving 
an  injury  from  the  wrongful  acts  of  others 
is  entitled  to  but  one  satisfaction,  and  an  ac- 
cord and  satisfaction  with,  or  a  release  or 
other  discharge  by  the  voluntary  act  of  the 
party  injured,  of  one  of  two  or  more  joint 
tortfeasors,  is  a  discharge  of  all.  Barrett  v. 
Third  Ave.  R.  Co.,  45  A^.  Y.  628  ;  affirming 
8  Abb.  Pr.  N.  S.  205,  i  Sweeny  568.  Chapin 
v.  Chicago  &•  E.  /.  R.  Co.,  18  ///.  App.  47. 


•  See  also  post,  20,  27. 


RELEASE,  11-14. 


—Quoting  Leddy  v.  Barney,  139  Mass.  394, 
2  N.  E.  Rep.  107. 

But  a  release  to,  or  the  receipt  of  money 
from  one  who  is  not  in  fact  lifible  with 
another,  will  not  discharge  such  other.  In 
order  to  discharge  the  other  the  satisfaction 
received  from  one  joint  wrong-doer  must  be 
received  in  satisfaction  of  the  whole  injury, 
or  in  full  satisfaction.  Wagner  v.  Union  S. 
Y.  Gr'T.Co.,\i  III.  App.  408. 

An  attorney  may  discontinue  an  action, 
but  his  authority,  unless  it  be  expressed, 
does  not  extend  to  a  compromise  or  a  re- 
lease of  a  cause  of  action.  So  where  plain- 
tiff, a  female,  comm.enced  an  action  against 
two  corporations  for  an  injury,  evidence 
that  her  attorney  had  compromised  and  re- 
leased the  cause  of  action  against  one  of 
.  the  companies  for  a  small  sum,  and  that  she 
called  upon  her  attorney,  when  she  was  out 
of  work  and  in  need,  and  received  $25  from 
him,  without  anything  to  show  that  she 
knew  the  source  of  the  money,  or  that  she 
authorized  her  attorney  to  settle  the  claim, 
is  not  sufficient  to  bind  her.  Barrett  v. 
Third  Ave.  R.  Co.,  45  N.  Y.  628;  affirming 
8  Abb.  Pr.  N.  S.  205,  i  Sweeny  568. 

1 1 .  Effect  of  fraud.  —  A  release  of  a 
claim  for  personal  injuries,  procured  by 
fraudulent  misrepresentation  of  fact,  is  not 
a  bar  to  an  action  for  the  injuries.  Hirsch- 
feld  v.  London,  B.  6-  S.  C.  A'.  Co.,  46  L.  /. 
Q.  B.  D.  94,  L.  R.  2  Q.  B.  D.  i,  35  L.  T. 

473- 

Whether  a  release  is  valid,  or  was  pro- 
cured by  fraud,  is  a  question  of  fact,  to  be 
determined  by  the  jury.  Green  v.  Southern 
Exp.  Co.,  41  Git.  515. 

The  son  of  plaintiff  was  killed  by  defend- 
ant's train  while  walking  on  the  track.  In 
consideration  of  defendant's  paying  the 
funeral  expenses,  plaintiff  signed  a  release, 
under  seal,  of  all  damages  for  his  son's 
death.  He  afterwards  brought  suit  and 
endeavored  to  invalidate  the  release  on  the 
ground  of  fraud.  The  court  charged  that 
the  evidence  of  fraud  was  too  slight  to  jus- 
tify the  jury  in  setting  aside  the  release,  but 
lefi  tlie  question  of  fraud  to  them  upon  the 
evidence.  Held,  that  this  was  error,  and 
that  the  case  should  have  been  withdrawn 
from  the  jury.  Pennsylvania  R.  Co.  v.  Shay, 
82  Pa.  St.  198,  15  Am.  Ry.  Rep.  462.— Fol- 
lowed IN  Ross  V.  West  Phila.  Pass.  R.  Co., 
17  Phila.  (Pa.)  361.  Quoted  in  Hoffman 
V.  Bloomsburf^  &  S.  R.  Co.,  157  Pa.  St.  174. 

Plaintiff  and  his  stepson  were  both  injured 


at  the  same  time.  After  investigation  de- 
fendant offered  to  pay  the  stepson  $200,  if 
he  would  procure  a  release  from  plaintiff  for 
$100,  at  the  same  time  denying  its  legal 
liability.  The  stepson  importuned  plaintiff 
while  he  was  weak  in  body  and  mir.j  from 
the  effects  of  the  injury,  and  made  him  be- 
lieve that  he  would  never  receive  more,  and 
perhaps  nothing,  and  induced  him  to  accept 
the  $100  and  sign  a  release.  A  master 
found  that  the  company  was  liable  and 
plaintiff  entitled  to  $4000  damages.  Held, 
that  the  release  should  be  set  aaide,  and  a 
decree  entered  for  the  amount  awarded  by 
the  master.  Magoric  v.  Little,  23  Blatchf. 
(U.  S.)  399,  25  Fed.  Rep.  627. 

12.  How  pleaded  and  proved.— In 
pleading  a  release  of  a  claim  it  is  not  neces- 
sary to  aver  that  it  was  under  seal.  A  re- 
lease ex  vi  termini  imports  a  seal,  and  it  is 
a  matter  of  evidence  whether  it  have  a  seal 
or  not,  if  a  seal  be  necessary.  Illinois  C.  R. 
Co.  V.  Read,  37  ///.  484. 

In  an  action  against  a  company  to  re- 
cover for  personal  Injuries,  a  writing  was  set 
out  in  the  complaint  which  stated  that  in 
consideration  of  a  sum  of  money  paid  plain- 
tiff, and  also  in  consideration  of  the  payment 
of  the  doctor's  fee,  he  waived  ail  right  to 
damages  against  the  company.  Held,  that 
it  was  not  only  proper  but  necessary  to 
allege  and  prove  extrinsic  facts  in  order  to 
give  the  writing  legal  effect,  as  it  was  in- 
complete and  afforded  plaintiff  no  enforce- 
able right  without  such  extrinsic  facts.  Ken- 
tucky &»  I.  Cement  Co.  v.  Cleveland,  4  Ind. 
App.  171,  30  A^  E.  Rep.  802. 

13.  Iiii|>eaclimeiit,  gfciierally.— When 
a  person  lias  executed  a  release  under  seal, 
his  uncorroborated  testimony  is  not  suflS- 
cient  to  impeach  it.  Ross  v.  West  Phila. 
Pass.  R.  Co.,  17  Phila.  (Pa.)  361.— Follow- 
ing Pennsylvania  R.  Co.  v.  Shay,  82  Pa.  St. 
198. 

14. Ignorance  of  contents— Neg- 
lect to  rea<l.*  —  It  is  well  settled  that 
where  a  party  having  capacity  to  read  an 
instrument  signs  it  without  reading  it,  and 
without  requesting  it  to  be  read  to  him,  he 
is  bound  thereby,  if  no  device  is  used  to  put 
him  off  his  guard.  Gulliher  v.  Chicago,  R. 
I.  &*  P.  R.  Co.,  59  Iowa  416,  13  M  IV.  Rep. 
429.— Distinguishing  Illinois  C.  R.  Co.  v. 


*  Release  of  claims  for  personal  injuries. 
Failure  to  read  releasing  receipt,  see  note,  48 
Am.  &  Eng,  R.  Cas.  soo- 


k 


10 


RELEASE,  15. 


Welch.  52  III.  183 ;  Schultz  v.  Chicago  &  N. 
W.  R.  Co.,  44  Wis.  638 ;  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Doyle.  18  Kan.  58.  -  DISTIN- 
GUISHED IN  Solomon  R.  Co.  v.  Jones,  34 
Kan.  443.—  Wallace  v.  Chicago,  St.  P.,  M.  &- 
O.  R.  Co.,  67  I<nva  547,  25  N.  W.  Rep.  772. 
Spitze  V.  Baltimore  &*  0.  R.  Co.,  48  Am. 
&*  Eng.  R.  Cas.  495.  75  ^^<f-  '62,  23  Atl. 
Rep.  307.— Distinguishing  McConkey  v. 
Cockey,  69  Md.  286. 

One  who  signs  a  discharge  or  acquittance 
without  knowing  its  contents  or  intending 
to  sign  such  an  instrument  is  not  bound  by 
it.  Schultz  V.  Chicago  &^  N.  W.  R.  Co.,  44 
Wis.  638,  18  ^w.  Ry.  Rep.  146.— Distin- 
guished IN  Gulliher  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  59  Iowa  416.  Followed  in  Lusted 
V.  Chicago  &  N.  W.  R.  Co..  71  Wis.  391. 

A  release  in  full  of  all  demands  for  work 
and  extras,  given  by  a  contractor,  done  un- 
der his  agreement,  cannot  be  attacked  (no 
fraud  or  malpractice  being  alleged)  two 
years  afterwards  on  the  ground  that  it  was 
obtained  from  him  by  surprise.  Coulson  v. 
Macpherson,  23  U.  C.  Q.  B.  129. 

Where  a  company  sets  up  a  written  re- 
lease by  one  who  sues  for  personal  injuries, 
and  the  plaintifT  alleges  that  the  release  was 
secured  by  fraud,  the  allegation  is  not  suffi- 
ciently supported  by  proof  that  plaintiff  was 
misinformed  as  to  the  contents,  and  did  not 
understand  the  nature  of  the  writing,  where 
three  witnesses  testify  that  they  were  pres- 
ent and  that  the  release  was  read  over  and 
explained  to  him  twice  before  he  signed  it, 
and  that  he  said  he  understood  it ;  especially 
in  view  of  the  fact  that  the  plaintifT  has  the 
burden  of  proof  in  setting  aside  the  release. 
Pederson  v.  Seattle  Con.  St.  R.  Co.,  6  Wash. 
202,  33 /'rtf.  Rep.  351,  34  Pac.  Rep.  665.— 
Reviewing  Rose  v.  West  Phila.  R.  Co., 
(Pa.)  12  Atl.  Rep.  78. 

15.  for  f'raiKl  or  misrepreseii- 

tatioii.*  —  After  plaintifT,  a  female,  had 
commenced  a  suit  for  damages,  agents  of 
the  company  induced  her  uncle  to  go  to  her 
to  procure  a  settlement.  She  testified  that 
he  said  it  would  be  a  great  disgrace  for  her 
logo  into  court, and  that,  if  she  continued 
the  suit,  it  would  be  put  ofl  from  time  to 
time  and  she  would  get  nothing  in  the  end; 
that  her  husband  was  away  at  the  time,  her 
children  were  sick,  and  she  was  thus  in- 


*  Release  of  damages  for  personal  injuries 
procured  by  fraud,  see  notes,  30  Am.  &  Eng. 
R.  Cas.  600;  19  /</.  233. 


duced  to  agree  to  a  settlement.  Soon  after* 
wards  the  company's  station  agent  and 
lawyer  read  her  a  receipt  in  full  of  all  de- 
mands, which  she  signed,  receiving  $8  in 
money  and  a  due  bill  for  $32,  which  she  re- 
turned the  next  day  and  repudiated  the 
settlement.  She  testified  that  she  had  no 
money  in  the  house  at  the  time,  and  the 
chief  inducement  to  take  the  $8  was  to  buy 
medicine  for  her  sick  children.  Held,  that 
there  was  such  advantage  taken  of  her  and 
her  circumstances  as  to  warrant  the  court 
in  giving  relief  against  the  release.  Stone  v. 
Chicago  &•  W.  M.  R.  Co.,  30  Am.  6-  Eng. 
R.  Cas.  600,  66  Mich.  76,  9  West.  Rep.  596, 
33  A'.  W.  Rep.  24. 

In  such  case  the  jury  were  instructed  that 
if  plaintifT  was  induced  to  make  the  settle- 
ment by  reason  of  wanting  money  to  buy 
medicines  for  her  children,  made  it  under- 
standingly,  and  without  fraud  or  undue  in- 
fluence upon  the  part  of  those  acting  for  the 
company,  it  was  binding  on  her,  and  a  bar 
to  the  action.  Held,  that  the  company 
could  not  complain  of  such  instruction. 
Stone  V.  Chicago  Sf  W.  M.  R.  Co.,  30  Am. 
&•  Eng.  R.  Cas.  600,  66  Mich.  76,  9  West. 
Rep.  596,  33  N.  W.  Rep.  24. 

To  entitle  a  party  to  rescind,  it  is  not  nec- 
essary that  he  should  first  have  positive 
knowledge  of  the  falsity  of  the  representa- 
tions. The  right  of  rescission  depends  on 
the  existence  of  the  fraud,  and  not  on  the 
certainty  of  the  party's  knowledge  of  the 
fact.  Peterson  v.  Chicago,  M.  Sm  St.  P.  R. 
Co.,  38  Minn.  511,  39  A^.  W.  Rep.  485. 

PlaintifT  assumed  to  rescind  a  release  of 
her  claim  against  defendant,  on  the  ground 
that  it  was  procured  by  a  false  and  fraudu- 
lent statement  of  defendant's  agent  that  "  her 
physician  had  stated  that  her  injuries  would 
soon  be  cured  with  proper  treatment."  Held, 
that  it  was  not  necessary  that  she  should 
have  entertained  an  unquestioned  and  pos- 
itive belief  in  the  correctness  of  the  alleged 
opinion  of  the  physician.  It  was  sufficient 
if  she  so  far  relied  on  it  and  was  so  far  in- 
fluenced by  it  that  it  was  the  inducing  cause 
of  her  executing  the  release.  Peterson  v. 
Chicago.  M.  6-  5/.  P.  R.  Co.,  38  Minn.  511, 
39  A'.  W.  Rep.  485. 

A  release  of  all  claims,  which  is  pleaded 
as  a  bar  to  an  action  at  law,  may,  in  that 
action,  be  shown  to  have  been  obtained  by 
fraud,  misrepresentation,  or  undue  influ- 
ence, if  all  the  parties  to  the  release  are 
panics  to  the  action,  and  the  finding  of  the 


RELEASE,  16,  17. 


11 


jury  upon  the  question  of  fraud  has  the 
same  force  as  their  verdict  upon  any  other 
issue  in  the  action.  Busst'an  v.  Milwaukee, 
L.  S.  &*  IV.  R.  Co.,  lo  Am.  6-  Eng.  R.  Cos. 
716,  56  Wis.  325,  14  N.  W.  Rep.  452  — 
Followed  in  Lusted  v.  Cliicago  &  N.  W. 
R.  Co.,  7'  Wis.  391. 

After  plaintif!  had  commenced  an  action 
and  had  employed  counsel,  the  agent  of  the 
company  obtained  a  release  from  her  in  the 
absence  of  her  counsel,  and  when  she  had 
no  proper  adviser.  The  execution  of  the 
release  was  urged  upon  her  by  her  attend- 
ing physician,  acting  on  behalf  of  the  com- 
pany, when  she  desired  a  postponement 
until  she  could  consult  her  counsel.  She 
was  uninformed  as  to  the  amount  of  charges 
her  attorneys  would  be  entitled  to  demand 
for  their  services,  and  defendant's  agent 
represented  that  the  company  would  prob- 
ably defeat  her  in  the  action,  and,  if  it  did 
not,  her  counsel  would  probably  absorb 
whatever  damages  she  might  recover  after 
an  uncertain  and  prolonged  litigation. 
Held,  that  the  jury  were  justified  in  finding 
that  the  release  was  a  fraud  upon  plaintiff. 
Russian  v.  Milwaukee,  L,  S.  &-  IV.  R.  Co., 
10  Am.  S^  Eng.  R,  Cas.  716,  56  Wis.  325, 
14  N.  W.  Rep.  452. 

16.  Restoring  consideration  on 
rescission.  —  (i)  W/ten  a  return  not  nec- 
essary. —  Wiiere  an  infant  releases  a  right 
of  action  against  a  railroad  company  for 
personal  injuries  for  a  consideration,  he  is 
not  bound  to  restore  the  consideration  as  a 
condition  precedent  to  his  right  to  disaffirm 
the  release,  and  sue  for  damages.  St.  Louis, 
I.  M.  &*  S.  R.  Co.  V.  Higgins,  21  Am.  &* 
Eng.  R.  Cas.  629,  44  Ark.  293. 

If  a  release  of  a  cause  of  action  is  ob- 
tained from  a  person  by  fraud  and  circum- 
vention, at  a  time  when  he  is  incapable  of 
making  a  contract  rationally,  and  money  is 
paid  to  him  at  the  time  of  its  execution,  he 
may  repudiate  the  release,  and  bring  his 
action  without  first  paying  or  tendering 
back  the  money  received  by  him.  Chicago, 
R.  I.  &*  P.  R.  Co.  V.  Lewis,  19  Am.  &*  Eng. 
R.  Cas.  224,  lop  ///.  120;  affirming  13  ///. 
App.  166.  Mullen  v.  Old  Colony  R.  Co.,  127 
Mass.  86. 

On  the  trial  the  jury  has  the  right  to  give 
the  company  credit  for  the  money  paid  at 
the  time  the  release  was  signed.  Chicago, 
R.  I.  <&«•  P.  R.  Co.  v.  Doyle,  18  Kan.  58,  15 
Am.Ry.  Rep.  187. 

(2)    IVhen  necessary.— \n  an  action  to  re- 


cover damages  it  appeared  that  the  parties 
had  agreed  upon  a  settlement  under  which 
plaintiff  received  a  sum  of  money  in  satis- 
faction of  his  injuries,  and  in  which  he  re- 
leased all  right  of  action  for  further  dam- 
ages. Held,  that  he  could  not  successfully 
reply  by  showing  that  the  release  was 
obtained  by  fraud,  without  also  showing 
that  before  commencing  suit  he  had  ten- 
dered to  defendant  the  sum  received  with 
demand  of  return  of  what  defendant  had 
received  from  him,  thus  rescinding  the 
settlement.  East  Tenn.,  V.  6-  G.  R.  Co.  v. 
Hayes,  83  Ga.  558,  10  S.  E.  Rep.  350. 

A  release  is  valid,  until  it  is  disaffirmed 
and  the  consideration  received  is  tendered 
back  ;  and  it  is  valid  as  against  a  lien  by  the 
plaintiff's  attorney,  where  he  has  not  fol- 
lowed the  statute  in  protecting  his  interest 
in  the  litigation.  Kreuzen  v.  Forty-second 
St.,  M.  <S-  St.  N.  A.  R.  Co.,  38  A^.  Y.  S.  R. 
461,  13  A':  Y.  Supp.  588. 

II.   BT  INJUBED  FASSENOEB. 

17.  Validity  and  effect,  generally. 

— A  release  executed  by  one  injured  by 
street-cars,  to  the  company,  in  the  absence 
of  fraud,  or  proof  that  the  releasor  did  not 
know  what  he  was  doing,  binds  the  releasor, 
no  matter  how  hard  the  bargain  may  be. 
Rose  V  IVest  Phila.  R.  Co.,  {Pa.)  12  Atl. 
Rep.  7\i. 

A  provision  in  a  contract  for  the  shipment 
of  live  stock  that  in  consideration  of  a  re- 
duced rate  the  shipper  would  release  the 
company  "  from  all  damages  attending  the 
transportation,  custody,  and  delivery  of  the 
stock,  except  such  as  might  arise  from  the 
fraud  or  wilful  misconduct  of  the  com- 
pany." only  applies  to  the  live  stock,  and 
does  not  release  the  company  from  liability 
for  injuries  to  one  who  is  riding  on  the  train 
to  care  for  the  stock.  Porter  v.  New  York, 
L.  E.  <S-  W.  R.  Co.,  36  N.  Y.  S.  R.  315,  13 
A';  Y.  Supp.  491,  59  Hun  177  ;  affirmed  in  129 
A^.  Y.  624,  mem.,  \\  N.  Y.  S.  R.  946,  29  N. 
E.  Rep.  1029. 

A  release  of  a  claim  against  a  railroad 
company  for  damages  for  personal  injuries 
to  a  woman,  who  feared  that  the  injuries 
would  cause  a  miscarriage,  signed  under  the 
advice  of  he '  husband  and  his  father  and 
made  for  a  valuable  consideration,  is  bind- 
ing, notwithstanding  the  subsequent  occur- 
rence of  the  result  which  she  feared,  and 
\\  liicii  fear  caused  her  to  hesitate  in  signing 


? 


12 


RELEASE,  18-20. 


such  release.  EccUs  v.  Union  Pac.  A'.  Co., 
48  Am.  &>  Eng.  R.  Cas.  38,  7  Utah  335,  26 
Pac.  Rep.  924. 

The  relationship  of  a  medical  man  to  his 
patient  is  one  of  trust  and  confidence,  and 
he  must  act  bona  fide  in  advising  him,  or 
any  settlement  made  through  him,  of  a 
claim  against  a  railway  for  a  personal  injury, 
in  consequence  of  advice  given  mala  fide, 
will  be  set  aside.  Rowe  v.  Grand  Trunk  R. 
Co.,  16  U.  C.  C.  P.  500. 

18.  Effect  of  iVaiicl  and  misrepre- 
sentation.— Where  an  injured  passenger 
is  induced  by  an  officer  of  the  company  to 
accept  money  and  execute  a  release  by 
fraudulent  representations  that  his  injuries 
were  trivial,  and  that  if  they  should  after- 
wards turn  out  to  be  more  serious  he  would 
still  be  in  a  position  to  obtain  further  com- 
pensation, he  is  not  precluded  from  main- 
taining an  action  for  the  injuries  received, 
provided  such  injuries  turn  out  to  be  more 
serious  than  he  had  anticipated.  Hirschfeld 
v.  London,  B.  <S-  S.  C.  R.  Co.,  L.  R.  2  Q.  B. 
D.  \,i,f>L.J.  Q.B.D.  I. 

If  an  injured  passenger  is  induced  to  sign 
a  release  of  all  damages  by  the  agents  of  the 
company,  through  their  representations  or 
acts,  which  induce  in  his  mind  the  belief  that 
he  is  only  signing  a  receipt  for  money  paid 
him  at  the  time  for  loss  of  time  and  expenses 
incident  to  the  delay  resulting  from  the  ac- 
cident, and  not  as  a  discharge  of  the  com- 
pany for  the  injuries  sustained,  or  if  such 
release  is  procured  by  fraud  and  circumven- 
tion, it  will  be  void.  Chicago,  R.  I.  <&^  P. 
R.  Co.  v.  Lewis,  19  Am.  &»  Eng.  R.  Cas.  224, 
109  ///,  120;  affirming  13  ///.  App.  166. 

A  passenger  was  severely  injured,  and  in 
a  few  hours  after  being  taicen  to  a  hotel  was 
induced  by  the  agents  of  the  company  to 
sign  a  release  of  his  right  of  action,  under 
the  belief  tiiat  he  was  signing  only  a  receipt 
for  money,  which  belief  was  caused  by  their 
fraudulent  practices  and  representations, 
and  it  appeared  that  he  was  suffering  great 
physical  pain  and  laboring  under  the  effect 
of  opiates.  Held,  that  he  was  not  charge- 
able with  such  negligence  in  executing  the 
release,  without  having  first  read  the  same, 
as  to  preclude  him  from  asserting  the  truth 
as  to  the  manner  in  which  his  signature  was 
procured.  Chicago,  R.  L  (S-  P.  R.  Co.  v. 
Lewis,  19  Am.  Sr*  Eng.  R.  Cas.  224,  109  ///. 
120;  affirming  13  ///.  App.  166. 

Plaintiff,  an  injured  passenger,  executed 
a  release   in  consideration   of    ^325.     She 


claimed  she  was  induced  to  execute  the  re- 
lease by  false  representations  of  defendant. 
The  court  below,  in  its  charge,  submitted  to 
the  jury  two  representations  as  grounds  on 
which  she  could  avoid  the  release.  As  to 
one  of  these  representations  she  had  learned 
its  falsity,  and  knew  the  facts,  when  she  re- 
ceived the  money.  Held,  error  to  submit 
that  representation  to  the  jury  as  an  inde- 
pendent ground  to  avoid  the  release.  Peter- 
son V.  Chicago,  M.  &•  St.  P.  R.  Co.,  36 
Minn.  399,  31  N.  IV.  Rep.  515. 

19.  Insanity  of  injured  passenger 
— Ratification. — The  contracts  of  insane 
persons  are  not,  as  a  rule,  absolute  nullities, 
but  may  be  ratified  after  the  insanity  is 
ended.  So  where  an  insane  person  is  in- 
jured while  riding  as  a  passenger,  and  exe- 
cutes a  release,  he  may  ratify  it  after  be- 
coming sane.  George  v.  St.  Louis,  I.  M.  &* 
S.  R.  Co.,  1  Am.  &>  Etig.  R.  Cas.  294,  34 
Ark.  613. 

Where  an  injured  passenger  has  accepted 
money  from  defendant,  and  given  a  release 
which  is  sought  to  be  avoided  on  the  ground 
that  he  was  insane  and  unconscious  when 
it  was  given,  a  charge  is  properly  given  that 
the  release  was  valid  if  he  used  or  retained 
the  money,  knowing  that  he  had  received 
it  in  satisfaction  of  his  injuries  and  did  not 
promptly  disaflSrm  the  contract,  but  ac- 
quiesced therein.  International  &*  G.  N. 
R.  Co.  v.  Brazzil,  44  Am.  &■•  Eng.  R.  Cas. 
437,  78  Tex.  314,  14  S.  W.  Rep.  609. 

20.  Release  to  one  of  two  carriers 
releases  both.*— Where  a  passenger  is 
injured  by  a  collision  and  brings  an  action 
against  the  proprietors  of  both  vehicles,  a 
release  of  one  who  was  a  party  in  fault  for 
a  consideration  operates  as  a  release  of 
both,  and  he  is  estopped  from  afterwards 
asserting  that  the  party  to  whom  the  release 
was  given  was  not  in  fault,  and,  therefore, 
not  liable.  Tompkins  v.  Clay  St.  Hill  R. 
G>.,  18  Am.  &^  Eng.  R.  Cas.  144,  66  Cal. 
163.  4  Pac.  Rep.  1 165.— Reviewing  Turner 
V.  Hitchcock,  20  Iowa  314. 

Where  a  passenger  on  a  street-car  is  in- 
jured by  a  collision  of  his  car  with  the  car 
of  another  company,  and  by  way  of  compro- 
mise receives  a  sum  of  money  and  releases 
the  carrier  company,  the  release  operates  to 
discharge  the  other  company  also,  though 
it  appear  that  the  negligence  of  the  latter 
company  alone  caused  the  accident.   Seither 


*See  also  antt,  lO,  and  post,  27. 


RELEASE,  21-26. 


18 


1 


V.  Philadelphia  Traction  Co.,  125  Pa.  St. 
397,  17  All.  Rep.  338. 

21.  Burden  of  proof  to  show  f^aud 
or  inadequacy   of   consideration.— 

It  is  the  duty  of  the  party  setting  up  that  a 
settlement  of  a  claim  for  personal  injuries 
received  as  a  passenger  has  been  obtained 
by  misrepresentation  to  establish  not  only 
that  the  settlement  has  been  so  obtained, 
but  also  that  the  amount  paid  is  inadequiite 
compensation  for  the  injuries.  Rowe  v. 
Grand  Trunk  R.  Co.,  16  U.  C.  C.  P.  500. 

III.  BT  INJUBED  EMPIOTE. 

22.  Validity  anfl  eft'cct,  Keoerally. 

—An  injured  employe  may  release  his  em- 
ployer for  injuries  caused  by  the  latter's 
negligence,  and  a  release  given  in  consid- 
eration of  $50  in  such  case  is  binding,  if 
fairly  procured.  Chicago,  W.  <&>•  V.  Coal 
Co.  V.  Peterson,  39  ///.  ^ipp.  1 14. 

A  receipt  by  a  brakeman,  who  had  been 
injured  by  the  negligence  of  the  company, 
for  a  month's  pay,  and  "  in  full  satisfaction 
of  all  claims,  demands,  damages,  and  causes 
of  action  against  said  company  " — held,  suffi- 
cient to  release  the  company  from  damages 
for  the  accident,  if  the  receipt  was  not  pro- 
cured by  fraud,  which  was  a  question  of  fact 
for  the  jury.  Illinois  C.  R.  Co.  v,  Welch, 
^2  III.  183.— Distinguished  in  GulIiherT/. 
Chicago,  R.  I.  &  P.  R.  Co.,  59  Iowa  416. 

23.  Consideration  —  Mutuality.  — 
A  contract  between  a  company  and  an 
employe  provided  that  if  the  employe 
should  be  temporarily  injured  he  should  be 
paid  '.lis  wages  until  he  was  able  to  work, 
jiot  exceeding  six  months,  and  if  the  injury 
was  permanent,  his  measure  of  damages,  in- 
cluding wages  while  not  at  work,  should 
not  exceed  $500.  Such  employe  was  injured 
and  signed  a  receipt  for  $32.50,  in  full  of  all 
wages  due  to  date  and  of  all  damages  sus- 
tained on  account  of  the  injury.  It  ap- 
peared that  the  receipt  was  signed  about  a 
month  after  the  injury.  Held,  that  it  was 
error  to  charge  that  the  contract  of  settle- 
ment barred  his  right  to  recover.  It  did  not 
appear  that  his  wages  were  in  dispute,  and 
he  was  entitled  to  more  than  a  month's 
wages ;  and  any  agreement  on  his  part  to 
receive  his  wages  in  satisfaction  of  damages 
would  be  a  nudum  pactum,  and  not  a  bar  to 
a  recovery.  Carlton  v.  Western  &-  A.  R. 
Co.,  81  Ga.  531,  7  5.  £.  Rep.  623.— Distin- 
guished IN  Carroll  v.  East  Tenn.,V.  &  G.  R. 
Co.,  41  Am.  &  Eng.  R.  Gas.  307,  82  Ga.  452. 


Where  an  employ6,  injured  in  the  service 
of  a  railway  company,  gives  the  company  a 
release  from  all  claims  for  damages,  in  re- 
turn for  a  promise  of  a  steady  job,  at  the 
same  compensation  received  before  the  in- 
jury, the  contract  does  not  lack  mutuality, 
and  is  enforceable.  Pennsylvania  Co.  v. 
Dolan,  6  fnd.  App.  109,  32  N.  E.  Rep.  802. 

24.  Effect  of  fraud  or  misrepresen- 
tation.— Where  a  company  sued  by  an  em- 
ploye for  damages  for  personal  injuries, 
pleads  a  release,  he  may  avoid  the  same  by 
showing  that  it  was  signed  under  the  belief, 
induced  by  the  fraudulent  representations 
of  the  defendant's  agents,  that  it  was  merely 
a  receipt  for  wages.     Welsh  v.  Alabama  &* 

V.  R.  Co.,  70  Miss.  20,  1 1  So.  Rep.  723. 

Where  an  employe  is  injured,  and  agrees 
with  the  company  to  receive  S300  for  loss  of 
time  and  an  artificial  foot,  and  a  voucher  or 
receipt  is  presented,  so  folded  as  to  appear 
to  be  only  for  the  $300,  but  is,  in  fact,  a  re- 
lease of  all  claims  on  account  of  the  injury, 
such  receipt  is  not  binding,  except  as  to  the 
$300.  Mateer  v.  Missouri  Pac,  R.  Co.,  (Mo.) 
IS  S.  W.Rep.  970. 

An  injured  employe  having  released  his 
right  of  action  by  a  contract  of  accord 
and  satisfaction  cannot  maintain  an  action 
against  the  company  for  fraudulently  in- 
ducing him  to  enter  into  that  contract  and 
accept  satisfaction  under  it  by  fraudulently 
persuading  him,  through  its  superintendent 
and  its  employed  physician,  to  believe  that 
his  injury  was  not  a  material  one  and  would 
not  be  permanent,  it  not  being  alleged  that 
any  artifice,  trick,  or  contrivance  was  used 
to  prevent  him  from  ascertaining  the  true 
nature  of  his  injury  and  its  probable  dura- 
tion. Hayes  v.  East  Tenn.,  V.  &•  G.  R, 
Co.,  89  Ga.  264,  15  5.  £".  Rep.  361. 

25.  Failure  to  read  release  before 
signing. — An  employe  who,  having  the  op- 
portunity and  ability,  neglects  to  read  all  of  a 
receipt  releasingthe  company  from  all  claims, 
on  account  of  injuries  received,and  signs  the 
same,  will  not  afterwards  be  heard  10  say  that 
he  did  not  read  it.  Mateer  v.  Missouri  Pac. 
R.  Co.,  105  Mo.  320,  16  S.  W.  Rep.  839. 

26.  Validity  of  covenant  not  to  sue 
for  future  injuries.*  —  An  injured  em- 

*  Validity  of  contracts  by  employes  not  to  sue 
employer  in  case  of  personal  injury,  see  note, 
S8  Am.  Rep.  836. 

Power  of  company  to  contract  with  employes 
against  future  injuries  for  which  it  is  liable  under 
Employers'  Liability  Act,  see  note,  44  Am.  Rep. 
633. 


14 


RELEASE,  27-20. 


pIoy6  may  by  contract  waive  his  right  to 
sue  for  injuries  not  arising  from  criminal 
negligence  on  the  part  of  the  company,  or 
its  other  employes  i  but  any  negligence, 
either  of  omission  or  commission,  on  the 
part  of  other  employes  of  the  road,  in  con- 
nection with  their  business,  from  which 
serious  injury  results,  constitutes  criminal 
negligence,  and  a  contract  waiving  the  right 
to  sue  for  injuries  resulting  therefrom  is 
contrary  to  public  policy,  and  void.  Cook  v. 
Western  6-  A.  R.  Co.,  28  Am.  &•  Eng.  R, 
Cas.  317,  72  Ga.  48.— Quoting  Western  & 
A.  R.  Co.  V.  Bishop,  50  Ga.  465. 

Plaintiff,  an  employe,  was  injured  while 
in  the  discharge  of  his  duties.  In  an  action 
to  recover  damages,  defendant  gave  in  evi- 
dence a  paper  signed  by  plaintiff,  by  which, 
in  consideration  of  his  employment,  he 
agreed  that  the  company  should  m  no  case 
be  liable  for  any  damage  to  him  by  reason 
of  its  negligence.  It  appeared  that  plaintiff 
was  at  the  time  of  the  execution  of  the  in- 
strument and  had  been  for  some  years  prior 
thereto  in  defendant's  employ.  His  original 
employment  was  a  general  one  and  for  no 
particular  time.  He  signed  the  release 
without  compulsion,  and  continued  there- 
after in  the  same  employment,  and  for  the 
same  compensation  as  before;  no  new  em- 
ployment was  tendered  to,  or  accepted  by 
him,  and  there  was  no  promise  that  the  em- 
ployment he  was  then  engaged  in  should  be 
continued,  nor  was  its  execution  made  a 
condition  of  continued  employment,  and  no 
consideration  was  paid  therefor.  Held,  that 
the  instrument  was  void  for  want  of  consid- 
eration. Purdy  V.  Rome,  IV.  &*  0.  R.  Co., 
I2S  iV.  Y.  209.  26  ,V.  E.  Rep.  255,  34  ^V.  Y. 
S.  R,  737;  affirming  ^2  Hun  267,  23  N.  Y. 
S.  R.  469.  5  iV.  v.  Stipp.  217.  —  Approved 
AND  DiSTiNGUioHED  IN  Runt  V.  Hcrrlng, 
21  N.  Y.  Supp.  244,  2  Misc.  105. 

As  to  wheiiier  if  defendant  had  given 
some  consideration  for  the  paper  it  would 
have  been  valid  as  a  release — quare,  Purdy 
V.  Rome,  IV.  <S-  O,  R.  Co.,  125  N.  Y.  209,  26 
A^.  E.  Rep.  255,  34  N.  Y.  S.  R.  j^ ;  affirm- 
ing 52  Hun  267,  23  N.  Y.  S.  R.  469,  5  N.  Y. 
Supp.  217. 

27.  Release  of  one  of  two  joint 
tortfeasors.*— In  case  of  an  injury  result- 
ing from  a  joint  tort,  a  satisfaction  by  one 
tortfeasor  discharges  both.  So  where  an 
employ^  is  injured  through  the  joint  negli- 


gence of  two  companies,  and  sues  each  sepa- 
rately and  obtains  judgments,  ur">n  the  sat- 
isfaction of  one  judgment  the  other  should 
be  canceled.    Gross  v.  Pennsylvania,  P.  &* 

B.  R.  Co..  47  A^.  Y.  S.  R.  374.  20  A'.  Y.  Supp. 
28,  65  Hun  191. 

The  execution  of  a  release  by  plaintiff  to 
the  railroad  corporation  which  employed 
him  will  not  release  a  bridge  corporation 
sued,  if  from  the  evidence  the  jury  might 
conclude  that  the  corporation  to  which  the 
release  was  executed  was  in  no  way  respon- 
sible for  the  accident.  Kentucky  &*  /,  Bridge 
Co.  v.  Hall,  125  /nd.  220,  25  A^.  E.  Rep.  219. 

IV.  B7  LANOOWNEB. 

28.  Of  right  of  way.*—  A  landowner 
released  to  a  railroad  the  right  of  way  in  con- 
sideration of  one  dollar,  and  sold  a  lot  on 
which  to  erect  a  depot.  In  an  action  against 
the  company  for  not  erecting  the  depot, 
parol  evidence  that  its  erection  was  the  real 
consideration  of  the  release  is  admissible. 
''/alter son  v.  Allegheny  Valley  R.  Co.,  7/^ Pa. 
St.  208,  8  Am.  Ry.  Rep.  30. 

The  release  by  a  mother  of  a  right  of  way 
to  a  railroad  over  land  held  in  common  by 
her  and  her  minor  children,  will  not  con- 
vey the  rights  of  the  minors,  and,  in  this 
case,  did  not  purport  to  do  so.     Charleston, 

C.  <&*  C.  R.  Co.  v.  Leech,  43  Am.  &>  Eng.  R. 
Cas.  588,  33  So.  Car.  175.  11  S.  E.  Rep.  631. 

29.  Of  damages  by  reason  of  the 
construction  and  operation  of  the 
road.- Where  a  lot  owner,  for  a  valuable 
consideration,  releases  a  railroad  company 
from  all  claims  for  damages  by  reason  of  the 
construction  and  maintenance  of  its  railroad 
in  the  street,  neither  the  changing  of  the 
road  from  a  narrow  gauge  to  a  wide  gauge, 
nor  any  subsequent  use  of  the  street  for 
railroad  purposes,  can  give  the  lot  owner  a 
right  of  action,  without  proof  that  the  new 
use,  or  the  new  mode  of  operating  the  road, 
has  damaged  him.  Denver,  U.  &>  P.  R. 
Co.  v.  Toohey,  15  Colo.  297,  25  Pac.  Rep.  166. 

A  release  of  all  damages  on  account  of 
the  laying  out  or  construction  of  a  rail- 
road through  and  over  the  land  of  the  re- 
leasor does  not  cover  damages  occasioned 
to  the  remaining  land  of  the  releasor  by  the 
construction  of  the  railroad  over  the  land  of 
other  persons.  Eaton  v.  Boston,  C.  &*  M. 
R.  Co.,  SI  N.  H.  504,  I  Am.  Ry.  Rep.  44. 


•See  also  antt,  10,  20. 


*■  See  also  Right  of  Way,  6. 


RELETTING-RELIEF  ASSOCIATIONS,  1. 


15 


A  release  by  a  landowner  of  all  claim  for 
damages  caused  by  the  construction  and 
operation  of  a  railroad  over  his  land,  does 
not  convey  to  the  company  operating  the 
road  any  title  to  the  land.  Groh  v.  Eckert, 
3  Brews.  (Pa.)  1 16. 

A  landowner  said  to  the  president  of  a 
railroad  company  v/hen  endeavoring  to  set- 
tle for  damages  that  if  they  would  run  the 
road  "  further  over "  from  his  house  and 
spring  he  would  give  the  land  occupied  for 
nothing  and  the  president  said  he  would 
"  try  to  accommodate  "  him.  HeM,  that  this 
was  too  slight  to  prove  the  grant  of  a  right 
of  way  or  release  of  damages,  for  there  was 
no  designation  of  the  land  released.  Eas/ 
Pa.  R.  Co.  V.  SchoUenberger,  54  Pa.  St.  144. 

A  release,  for  a  valuable  consideration,  of 
a  company  from  "  all  suits,  claims,  demands, 
and  damages  by  reason  of  its  entry  ;  and 
the  location  and  construction  thereon  of  its 
railroad  and  works  connected  therewith,"  is 
a  bar  to  an  action  by  a  subsequent  lessee  of 
said  owners,  brought  to  recover  damages  for 
injuries  caused  by  an  insufficient  culvert 
constructed  prior  to  the  execution  of  the 
release.  Hoffeditz  v.  Southern  Pa.  R.  &*  M. 
Co.,  38  Am.  &•  Eng.  R.  Cas.  654,  129  Pa.  St. 
264,    18  Atl.   Rep.  125.— DiCTINGUISHED    IN 

McMinn  v.  Pittsburgh,  M.  &  Y.  R.  Co.,  147 
Pa.  St.  5, 

A  release  of  all  claims  for  damages  which 
may  accrue  by  reason  of  the  construction 
and  maintenance  of  a  railroad  is  a  bar  to  a 
recovery  for  injuries  caused  by  a  ditch  and 
culvert  constructed  by  the  company  upon  its 
right  of  way  subsequently  to  the  original  lo- 
cation and  construction  of  the  railroad. 
Updi^rcnie  V.Pennsylvania  S.  V.  R.  Co.,  133 
Pa,  St.  540,  19  Atl.  Rep.  283.  —  Distin- 
guished IN  McMinn  v.  Pittsburgh,  M.  &  Y. 
R.  Co.,  147  Pa.  St.  5.  Followed  in  Kemp 
V.  Pennsylvania  R.  Co.,  156  Pa.  St.  430. 

A  release  of  a  right  of  way,  together  with 
all  damages  "  now  accrued,  or  thereafter  to 
accrue,  for  or  by  reason  of  the  location, 
construction,  maintenance  and  operation " 
of  the  railroad,  does  not  cover  injuries  re- 
sulting from  subsequent  negligence  of  the 
company  in  failing  to  make  or  maintain  suf- 
ficient drains  or  culverts.  McMinn  v. 
Pittsburgh,  M.  <S-  Y.  R.  Co.,  147  Pa.  St.  5, 
23  Atl.  Rep.  325.—  Distinguishing  Hof- 
feditz V.  Southern  Pa.  R.  &  M.  Co.,  129  Pa. 
St.  264 ;  Updegrove  v.  Pennsylvania  S.  V. 
R.  Co.,  132  Pa.  St.  S40. 

A  landowner  conveyed  a  strip  of  land  to 


a  railroad  company,  and  released  it  from  all 
claims  or  damages  which  might  accrue  by 
reason  of  constructing,  maintaining,  ard 
operating  the  railroad  on  and  over  the  lana. 
At  the  time  there  was  on  the  strip  a  private 
way  connecting  one  part  of  the  owner's  land 
with  another.  Where  the  way  crossed  the 
tracks  there  was  a  plank  crossing  between 
the  rails.  Subsequently  the  company  laid 
twenty-four  tracks  on  the  strip,  practically 
converting  it  into  a  yard.  No  plank  cross- 
ing was  laid  between  any  of  the  rails,  and 
the  way  was  seriously  obstructed.  Held, 
that  the  release  covered  the  injury  done  by 
the  obstruction  of  the  way.  Kemp  v.  Penn- 
sylvania R.  Co.,  1 56  Pa.  St.  430,  26  Atl.  Rep. 
1074. — Following  Updegrove  v.  Pennsyl- 
vania S.  V.  R.  Co.,  132  Pa.  St.  540.  Quot- 
ing North  &  W.  B.  R.  Co.  v.  Swank,  105 
Pa.  St.  555  ;  Pennsylvania  R.  Co.  v.  Jones, 
50  Pa.  St.  417. 

30.  Of  damage  for  injuries  to  live 
stoclc.*— An  agreement  by  a  plaintiff  to  re- 
lease a  railroad  company  from  a  claim  for 
stock  killed  by  the  operation  of  its  road,  in 
consideration  that  the  company  will  con- 
struct a  certain  cattle  pass  for  plaintiff's  use, 
does  not  operate  as  a  release  until  the  pass 
is  constructed.  Terre  Haute  &*  I,  R.  Co.  v. 
Flanigan,  20  Am.  &*  Eng.  R,  Cas,  452,  94 
Ind.  336. 

RELETTING. 

Of  contract  by  subcontractor,  see  Construc- 
tion OF  Railways,  87. 


BELEVANGT. 

Of  evidence,  see  Animals.  Injuries  to.  392- 

402. 
in  actions  for  causing  death,  see  Death 

BY  Wrongful  Act,  223. 
—  witnesses'  answers,  see  Witnesses,  46. 

RELIEF. 

Against  irregular  service   of    process,  see 

Process,  47. 
What  granted  in  suit  to  enjoin  construction 

of  steam  railway  in  street,  see  Streets 

AND  Highways,  248. 


RELIEF  ASSOCIATIONS. 

1.  What  benefits  recoverable,  gen- 
erally.!— A  certificate  of  membership  de- 

*See  also  Animals,  Injuries  to,  387. 
f  Railroad  relief  associations,  see  note,  i  L.  R. 

A.  75. 


? 


16 


RELIEF   ASSOCIATIONS,  2-5. 


scribed  the  assured,  wl.o  was  killed  while 
acting  as  a  brakeman,  as  ?  "  spare  conduct- 
or," and  provided  that,  if  he  should  be  in- 
jured while  engaged  in  an  occupation  more 
hazardous  than  his  regular  employment,  the 
indemnity  to  be  paid  should  be  that  fixed 
for  the  more  hazardous  employment.  The 
association  classified  the  employment  of 
brakemen  as  more  hazardous  than  that  of 
conductors,  and  fixed  an  indemnity  for  each, 
but  did  not  classify  or  fix  an  indemnity  for 
that  of  "  spare  conductor."  Held,  that  the 
beneficiary  was  only  entitled  to  the  indem- 
nity allotted  a  brakeman.  Aldrich  v.  Mer- 
citnlile  M.  A.  Assoc,  149  Mass.  457,  21  N.E. 
Kep.  873. 

In  such  case  evidence  that  the  duties  of  a 
"  spare  conductor  "  included  those  of  a 
brakeman  as  well  as  of  a  conductor  was  im- 
properly admitted.  Aldrich  v.  Mercantile 
M.  A.  Assoc,  149  Mass,  457.  21  A^.  E.  Kep, 

873. 

In  an  action  of  assumprit  against  a  relief 
association  to  recover  benefits  alleged  to  be 
due  to  a  member,  only  such  benefits  can  be 
recovered  as  were  due  at  the  commence- 
ment of  the  action,  and  judgment  cannot  be 
rendered  for  benefits  accruing  subsequently 
thereto,  Baltimore  &>  O.  E.  Relief  Assoc,  v. 
Post,  39  Am.  (S-  Eng.  R.  Cas.  283,  122  Pa, 
St.  579,  1 5  Atl.  R(p.  885. 

A  corporation  organized  to  afford  relief 
to  railroad  employes,  in  one  article  of  its 
constitution  provided  for  relief  to  those  in- 
jured "  by  accidents  while  in  the  discharge 
of  duty,  and  in  the  service  of  the  B.  &  O. 
railroad  company,  or  of  any  other  railroad 
company  whose  employes  shall  be  admitted 
to  the  privileges  of  membership";  and  in 
another  article,  "  while  in  the  discharge  of 
duty  in  the  service  of  either  of  the  com- 
panies aforesaid."  An  employ6  who,  from 
four  to  fifteen  minutes  before,  had  quit  work 
for  the  day  was  killed  by  cars  while  cross- 
ing the  railroad  tracks  on  his  way  home 
from  work.  Held,  that  his  beneficiary  was 
entitled  to  relief.  Kinney  v.  Baltimore  &• 
O.  E.  Relief  Assoc,  53  Am.  &*  Eng.  R.  Cas. 
34.  35  W.  Va.  385,  13  S.  E.  Rep.  1009. 

2.  BeneHts  for  •<  total  Inability  to 
labor."— The  words  "  total  inability  to  la- 
bor "  contained  in  the  constitution  and  by- 
laws of  a  relief  association  do  not  confer 
.upon  a  member  the  right  to  receive  benefits 
during  the  whole  time  he  was  disabled  from 
fo]lowing  the  employment  in  wiiich  he  was 
engaged  at  the  time  when  the  disability  oc- 


curred, if  he  was  capable  of  earning  as 
much  or  more  in  some  other  employment. 
Baltimore  &*  O.  E.  Relief  Assoc,  v.  Post,  39 
Am.  (9*  Eng.  R.  Cas.  283, 122  Pa.  St.  579, 15 
Atl.  Rep.  885. 

3.  Evidence  of  rules  and  rogula- 
tiona.— In  an  action  to  recover  benefits 
from  a  relief  association,  the  rules  and  regu- 
lations of  the  association  cannot  be  shown 
by  receipts  of  plaintiff  for  benefits  as  a  for- 
mer member.  Baltitnore  6-  O.  E,  Relief 
Assoc.  V.  Post,  39  Am.  6>»  Eng.  R.  Cas.  283, 
i2;i  Pa.  St.  579,  IS  Atl.  Rep.  885. 

4.  Evidence  of  menibersliip.  —  Al- 
though the  constitution  and  by-laws  of  a 
railroad  relief  association  authorized  the 
company  to  deduct  from  its  employes' 
wages,  dues  owing  by  employes  to  the  asso- 
ciation, the  declarations  of  the  paymaster 
that  he  had  deducted  dues  are  not  admissi- 
ble, in  an  action  against  the  relief  associa- 
tion, for  the  purpose  of  proving  the  plain- 
tiff's membership,  in  the  absence  of  any 
evidence  to  show  that  the  company  or  its 
paymaster  had  authority  to  make  the  de- 
duction. Baltimore  &'  O.  E.  Relief  Assoc,  v. 
Post,  39  Am.  <S-  Eng.  R.  Cas.  283,  122  Pa. 
St.  579,  IS  ////.  Rep,  885. 

When,  by  the  by-laws  of  the  relief  asso- 
ciation, persons  applying  for  admission  as 
members  are  required  to  submit  themselves 
to  medical  examination,  evidence  of  the 
medical  examiner  of  the  association  that  he 
had  never  examined  the  plaintiff  is  admissi- 
ble for  the  purpose  of  showing  that  he  had 
never  become  a  member.  Baltimore  &*  O. 
E.  Relief  Assoc,  v.  Post,  39  Am.  &*  Eng.  R. 
Cas.  283,  122  Pa.  St.  579,  15  Atl.  Rep.  88s. 

5.  Effect  of  dealings  with,  on  right 
to  recover  from  company.—  Where  a 
railroad  employe  becomes  a  member  of  a 
railroad  association,  and  signs  a  contract  by 
which  he  releases  the  company  from  liabil- 
ity for  any  injury  which  may  occur  while  in 
the  company's  service,  in  consideration  that 
the  company  guarantees  the  payment  of  the 
benefits  promised  by  the  association,  and  of 
its  contributing  to  the  funds  of  the  associa- 
tion, he  cannot  maintain  an  action  against 
the  company,  especially  where  he  receives 
the  benefits  of  the  association  and  gives  a 
receipt  discharging  the  company.  Martin 
V.  Baltimore  &*  0.  R.  Co.,  41  Fed.  Rep.  125. 
Graft  V.  Baltimore  &*  O.  R.  Co.,  (Pa.)  8  At/. 
Rep.  206. 

Where  a  railroad  employ6  and  a  member  of 
the  "  Relief  Association,"  after  an  injury, 


I 


RELIEF   ASSOCIATIONS,  <»-». 


ir 


accepts  benefits  from  the  "  Relief  Fund,"  lie 
cannot  afterwards  recover  from  the  com- 
pany on  the  ground  that  his  injury  was 
caused  by  its  negligence.  Johnson  v.  Phila- 
dtlphia  &*  R.  R.  Co.,  2  Pa.  Dist.  229. 

O.  Such  (lealiiigH  when  no  har.— 
If  a  member  of  a  railroad  relief  association 
obtains  payment  of  benefits  by  falsely  rep- 
resenting that  his  inability  to  work  resulted 
from  malaria,  when  in  fact  it  was  caused  by 
a  railroad  collision,  he  is  not  estopped  by 
such  misrepresentation  from  maintaining  an 
action  against  the  company  to  recover  dam- 
ages for  the  injury.  Owens  v.  Balthnorc  &^ 
O.  R.  Co.,  39  A>n.  &*  Eng.  R.  Cas.  276,  35 
Fed.  Rep.  715. 

The  widow  of  a  railroad  employ^,  after 
the  death  of  her  husband,  released  any 
claim  she  might  have  against  the  company 
for  causing  his  death,  for  the  purpose  of 
enabling  her  husband's  mother  to  obtain 
from  a  railroad  relief  association  payment 
of  an  amount  of  life  insurance,  which,  under 
its  constitution,  was  payable  only  on  condi- 
tion that  all  persons  entitled  to  sue  the  rail- 
road company  for  his  death  should  release 
it  from  liability.  Held,  in  a  suit  by  the 
widow  against  the  railroad  company,  that 
the  release  was  not  invalid  as  against  public 
policy.  State  v.  Baltimore  &*  O.  R,  Co.,  36 
Fed.  Rep.  655.— Reviewing  Fuller  v.  Bal- 
timore &  O.  E.  Relief  Assoc,  67  Md.  433, 
10  Atl.  Rep.  237. 

Plaintiff  was  paid  $250  by  a  railway 
benefit  insurance  society,  of  which  her  de- 
ceased husband  was  a  member,  and  gave  a 
receipt  stating  that  the  railway  company 
was  relieved  from  all  liability.  The  de- 
ceased's certificate  did  not  profess  to  be  an 
insurance  against  accidents,  and  the  railway 
company  was  no  party  to  the  receipt.  Held, 
that  the  receipt  formed  no  bar  to  an  action 
against  the  company,  nor  had  it  any  right 
to  deduct  the  amount  received  from  the 
benefit  society  from  the  sum  plaintiff  was 
entitled  to  as  damages.  Farmer  v.  Grand 
Trunk  R.  Co.,  21  Ont.  299.— Distinguish- 
ing Hicks  V.  Newport,  A.  &  H.  R.  Co.,  4 
B.  &  S.  403,  n. 

7.  By-laws— Election  of  remedies. 
— A  by-law  of  a  railroad  relief  association 
which  requires  employes  to  file  a  release  of 
the  railroad  company  from  any  claim  for 
damages  before  receiving  any  payment  of 
benefits  from  the  relief  sociation,  simply 
requires  the  member  of  a  relief  association 
to  make  his  election  between  suing  the  rail- 
7  D.  R.  D.— 2 


road  company  for  damages,  or  relying  upon 
the  benefits  conferred  by  the  relief  associa- 
tion, and  is  not  against  public  policy.  Owens 
v.  Baltimore  (S~«  O,  R.  Co.,  39  Am.  6r*  Eng. 
R.  Cas.  2/5.  35  Fed.  Rep.  715. 

Nor  is  suci  a  provision  so  unreasonable 
that  a  court  ran  declare  it  void.  Fuller  v. 
Baltimore  &*  O.  E.  Relief  Assoc,  67  Md. 
433,  10  All.  Rep.  237.— Reviewed  in  State 
V.  Baltimore  &  O.  R.  Co.,  36  Fed.  Rep.  655. 

A  member  of  such  relief  association  desig- 
nated his  mother  as  his  beneficiary  in  case 
of  his  death,  and  upon  his  death  his  wife 
and  infant  child,  the  persons  legally  entitled 
to  damages  if  the  death  was  the  result  of 
negligence,  refused  to  release  the  railroad 
company,  and  brought  suit  and  recovered 
damages  by  a  compromise.  He.d,  that  the 
mother  could  not  recover  benefits  from  the 
relief  association.  Fuller  v.  Baltimore  &* 
O.  E.  Relief  Assoc. ,(i^  Md.  433,  10  Atl.  Rep. 

237. 

8.  Deductions  from  wages  as  con- 
tribution to  siclc  fUud.  — Plaintiff,  a 
railway  porter,  on  entering  the  service  of 
defendant  company,  signed  an  agreement 
that  certain  deductions  should  be  made 
weekly  from  his  pay  as  his  contribution  to 
a  sick  and  funeral  allowance  fund  for  the 
benefit  of  defendant's  servants,  which  was 
managed  on  their  behalf  by  defendant. 
Deductions  were  made  weekly  until  plain- 
tiff left  the  defendant's  service,  when  he 
brought  an  .iction  to  recover  the  amount  of 
the  deductions  as  having  been  made  in  con- 
travention of  the  provisions  of  the  Truck 
Acts.  During  the  period  in  respect  of 
which  plaintitT  sued,  a  larger  sum  had  been 
paid  out  of  the  fund  for  medical  attendance 
on  plaintiff  and  his  wife  than  the  total 
amount  of  his  contributions.  Held,  that 
the  Truck  Amendment  Act,  1887,  §6,did  not 
apply  to  written  contracts  excepted  by  sec- 
tion 23  of  the  Truck  Act,  1831,  from  the 
operation  of  that  act ;  that  the  deductions 
were,  therefore,  legally  made,  and  that  plain- 
tiff was  not  entitled  to  recover.  Lamb  v. 
Great  Northern  R.  Co.,  [iSgi]  2  Q.  B.  281. 

O.  Assessments  to  pay  death 
claims. — Where  railway  employes  organize 
a  mutual  benefit  association,  providing  for 
aid  to  members  who  are  permanently  dis- 
abled, and  for  the  families  of  members  who 
are  killed,  and  its  constitution  provides  that 
all  claims  against  the  association  shall  be 
referred  to  the  board  of  directors,  whose 
decision  shall  be  final,  and  that  no  assess- 


? 


II 


RELIEF  ASSOCIATIONS,  10,  1 1. -REMEDIES. 


ment  shall  be  made,  except  upon  its 
authority,  no  suit  can  be  maintained  upon 
a  death  claim  after  the  board  lias  refused  to 
pay  it.  Nooil  v.  liailway  Pass.  &*  F.  C.  M. 
B.  Assoc.,  31  /•<•//.  Kep.  62. 

The  laws  of  such  association  provided 
that  if  a  member  neglected  or  refused  to  pay 
any  assessment  for  a  specified  time,  lie 
should  cease  to  be  a  member,  and  the  secre- 
tary should  strike  his  name  from  the  roll  of 
members.  Jlelii,  that  such  law  was  self- 
executing,  and  a  person  neglecting  or  refus- 
ing to  pay  for  the  time  specified  ceased  to 
be  a  member  without  his  name  being 
stricken  from  the  roll,  J^ooit  v.  Kailway 
Pass.  &*  r.  C.  Af.  li.  Assoc,  i\  Fed.  Rrp.  62. 

10.  DiMHuliition.  —  The  committee  of 
a  railroad  employes'  relief  association,  em- 
powered to  adopt  a  constitution  and  by-laws, 
and  to  alter  and  amend  the  same,  adopted 
a  constitution  providing  for  relief  or  benefits 
to  members  in  case  of  death,  accident,  or 
sickness,  and  to  aid  therein  the  company 
agreed  to  pay  the  annual  operating  expenses, 
amounting  to $25,000,  and  donated  a  further 
sum  of  $100,000.  Subsequently  it  was  de- 
cided to  add  a  pension  feature  for  aged 
employes,  and  that  the  railroad  company 
should  contribute  $25,000  annually  thereto, 
and  that  the  association  should  pay  its  own 
operating  expenses,  but  no  change  was  made 
in  the  constitution  or  by-laws.  Held,  that 
the  company  was  not  released  from  paying 
the  operating  expenses  of  the  association, 
and  on  its  dissolution  all  moneys  paid  by 
the  association  for  such  expenses  should  be 
treated  as  assets.  Baltimore  6^  O,  B.  Co.  v. 
Baltimore  <S->  O.  E.  Relief  Assoc,  77  Md. 
566,  26  Atl.  Kep.  1045, 

The  constitution  and  by-laws  of  such  as- 
sociation provided  for  the  payment  to  mem- 
bers of  certain  specified  sums  in  case  of 
sickness  or  accident,  and  of  a  certain  sum 
to  the  personal  representative  in  case  of 
death.  Held,  on  a  distribution  of  the  assets 
of  the  association  after  dissolution,  that  all 
claims  accruing  by  reason  of  death,  sickness, 
or  accident  before  the  dissolution  were  en- 
titled to  preference,  and  were  not  cut  off  by 
the  dissolution.  Baltimore  &*  0.  B.  Co.  v. 
Baltimore  &*  0.  E.  Relief  Assoc,  77  Md.  566, 
26  Atl.  Rep.  1045, 

1 1 .  Receiver  for.— A  receiver  will  not 
be  appointed  for  a  railway  relief  association 
which  has  been  dissolved  by  the  legislature, 
and  which  has  transferred  all  its  assets  to  a 
railroad  company  which  has  guaranteed  its 


obligations,  and  a  new  association  has  been 
formed  to  take  the  place  of  the  old,  into 
which  the  great  majority  of  the  members 
have  entered  for  the  purpose  of  saving  their 
interests,  and  where  the  railroad  company 
acknowledges  itself  to  be  a  trustee  of  the 
assets,  ready  to  account  for  the  same  as  the 
court  shall  order,  and  ready  and  able  to 
give  ample  security  for  the  payment  of  any 
sum  com|>lainants  may  be  entitled  to.  Bat- 
timore  &^  O,  R.  Co.  v.  Cannon,  72  Afd,  493, 
20  Atl,  Rep,  123. 


RELOCATION. 
Of  route,  see  Location  ok  Routk,  1 7-24« 


REMAINDERMAN. 
As  a  party  in  condemnation  proceedings,  see 

Emink.nt  Domain,  207. 
When  entitled  to  land  damages,  see  Eminent 

Domain,  432. 


REMANDING. 

Cause  after  removal,  see  Removal  or  Causes, 

50-50. 
For  further  proceedings  below,  see  Eminent 

Domain,  ORJI. 
—  new  trial  below,  see  Certiorari,  12. 
To  justice  of  the  peace  for  new  trial,  see 

Animals,  Injuries  to,  038. 


REMEDIAL  STATUTE. 
Construction  of,  see  Statutes,  47. 


REMEDIES. 
Against  relief  associations,  election  of,  see 

Rki.ikf  Associations,  7. 
Amending   chtrter   by  providing  new,  see 

CUARTEKS,  .'13. 

At  law,  creditor  must  exhaust,  see  Crkdit- 
<>Ks'  Hill,  O. 

Change  in,  not  an  impairment  of  charter  con- 
tract, see  Charters,  23. 

—  of,  by  statute,  as  ground  of  abatement,  see 

AnATEMENT,  1  O. 

Election  of,  by  attorney-general,  see  Attor- 
ney-General, 2. 

For  breach  of  construction  contracts,  see 
Construction  of  Railways,  00-121. 

—  collection  of  charges,  see  Charges,  69- 

8((. 

taxsi,  election  of,  see  Taxation, 

312. 

—  damages  caused  by  fires,  see  Firis,  136- 

307. 

—  discriminated  in  charges,  see  Discrimina- 

tion, ;»::,  J3,  73-82. 


REMISSION— KKMOTE    DAMAGES. 


19 


For  disturbance  of  ferry  franchise,  see  Fkk- 
RiKs,  n,  0> 

—  errors  and  defects  in  pleadlnKS,  see  Pikaiv 

iNO,  107-1  MO. 

—  Hooding  lands,  see  Flooding  Lands,  40- 

lOl. 

—  illegal  taxation,  see  Rkvknuk,  10. 
in  Canada,  see  Taxatkin,  tl80. 

—  infringement  of  patents,  see  I'atrnts  for 

Invkni'ions,  14-23. 

—  injuries  caused  by  obstructions  and  en- 
croachments in  streets  and  highways, 

see  SlKEKTS  AND  lllOIIWAVS,  413-425. 

to  employes,  see  Emi'Lov£s,  Injuries  to, 

400-784. 

—  interference  with  easements,  see  Ease- 
ments, 14,  15. 

or  disturbance  of,  corporate  fran- 
chise, see  Franchisks,  O. 

obstruction  of,  private  ways,  see 

Private  Ways,  0-17. 

—  invalid  or  irregular  increase  of  stock,  see 

Stock,  28. 

—  nuisances,  see  Nuisance,  14-41. 

—  obstruction  of  navigation,  see  Bridges, 

ETC.,  80-88. 

—  overcharges  in  passenger  fares,  see  Tick- 

ETs  AND  Fares,  130-135. 

—  refusal  to  transport  passengers,  see  Car- 

kiaue  of  Passengers,  118. 

—  unlawful  taxation,  see  Taxation,  331- 

302.    . 

—  wrongful  ejection  from  train,  see  Ejection 

OF  Passengeks,  00-130. 
interference  with  property  under  color 

of  eminent  domain,  see  Eminent  Domain, 

08:1-1085. 
Of  abutting  owners,  see  Elevated  Railways, 

50-1 08. 
where  steam  roads  are  constructed 

in  streets,  see  Streets  and  Highways, 

208-205. 

—  assignees,  see  Assignment,  1 7-24. 

—  company  against  holder  of  forged  certifi- 

cate or  transfer,  see  Stock,  OO. 

—  landowners  for  interference  with  property 

in  England,  see  Eminent  Domain,  1 204- 
1200. 

—  —  under  Canadian  expropriation  pro- 
ceedings,  see  Eminent  Domain,  1274- 
1281. 

—  minority  against  majority  of  stockholders, 

see  Stockholders,  110-117. 

—  parties  paying  overcharge,  see  Charges, 

30-58. 

to  purchase  of  land,  see  Vendor  and 

Purchaser,  6-8. 

—  railway  contractor,  see  Construction  of 

Railways,  43-45. 

—  stockholder  against  corporation,  see 
Stockholders,  80-04t 


Of  stockholder  against    corporation  or  its 

officers,  sti' SiorKiiHi.Di  Rs,  77-130. 
directors,   see  Skmkholdkrs,  05- 

103. 
on  reorganisation,  see  Rforganiza  i  ion, 

4-0. 
who  has  been  deprived  of  his  stock,  see 

S tockiioldeks,  1 04- 1  OO. 
On  leases,  sec  Lkasks,  km..,  100-I07. 
To  enforce  subscriptions  to  stock,  see  Sub- 

scRirriuNs  To  SiocK,  70-I70. 
Upon  railway  mortgages,  election  of,   see 

MoRiGAOKs,  150-107. 
Validity  of  statutes  affecting,  see  Statutes, 

21. 

REMISSION. 

Of  excessive  damages  in  stock-killing  cases, 
see  Animals,  Injuries  to,  504. 

on  appeal,  see  Aitkal  and  Error, 

120. 


REMITTITUR. 

Of  damages,  effect  of,  on  right  to  appeal,  see 

Appeal  and  Error,  3. 
—  excessive  damages,  see  New  Trial,  82^ 

80. 


REMOTE  CAUSE. 
Of  accident,  when  question  for  jury,  see  Neg. 
ligence,  72. 

—  death  by  accident,  see  Accident  Insur- 
ance, 3. 

—  injury  in  street  or  highway,  see  Streets 

and  Highways,  374. 
to  employe,  what  is,  see  Employes,  In- 
juries to,  17. 

—  spread  of  fire,  see  Fires,  82. 
Plaintiff's  negligence  as,  see  Contributory 

Nkgligencf.,  15,  lO. 
When    question  for  jury,  see  Negligence, 
58. 


REMOTE  DAMAGES. 

Generally,  see  Damages,  7-11. 

In  actions  against  carriers  of  passengers,  see 
Carriage  of  Passengers,  013. 

for  false  imprisonment,  see  False  Im- 
prisonment, lO. 

flowing  lands,  see  Flooding  Lands, 

87. 

injuries  caused  by  fire,  see  Fires, 

334. 

to  children,  see  Children,  Inju- 
ries to,  186. 

on  construction  contracts,  see  Con- 
struction OF  Railways,  120. 

—  condemnation  proceedings,  see  Eminent 
Domain,  671. 


? 


30 


REMOVAL— REMOVAL  OF  CAUSES,  1-3. 


In  railway  Intersection  proceedings,  see 
Crossing  or  Railroads,  48. 

—  atock  killing  cases,  see  Animals,  Injuries 
TO,  681. 

Under  Canadian  expropriation  laws,  see  Emi- 
nent Domain,  1244. 


REMOVAL. 
Of  banks  of  streams,  see  Flooding  Lands,  9. 

—  buildings,  cost  of,  as  an  element  of  land 

damages,  see  Eminent  Domain,  078. 

in  condemnation  of  land,  see  Eminent 

Domain,  89. 

—  directors,  see  Directors,  etc.,  17. 

—  disorderly  passenger  from  ladies'  car,  see 

Carriace  ok  Passengers,  324. 

—  farm  crossings,  see  Farm  Crossings,  10. 

—  goods  by  consignee,  reasonable  time  for, 

see  Carriage  of  Merchandise,  83-80. 

—  highway   obstruction  by  surveyors,   see 

Streets  and  Highways,  423. 

—  mortgage  trustee,  see  Mortgages,  132. 

—  name  from  list  of  shareholders,  see  Stock, 

85. 

—  personal  property  as  an  element  of  land 

damages,  see  Eminent  Domain,  080. 

—  property,  cost  of,  as  an  element  of  dam- 

ages, see  Streets  and  Highways,  283. 

—  —  evidence  of  expense  of,  on  assessment 

of  land  damages,  see  Eminent  Domain, 
611. 

—  railway  commissioners,  see  Railway  Com- 

missioners, 4. 

—  receivers,  see  Receivers,  104-109. 

—  referee,  see  Reference,  7. 

—  trustees,  see  Trusts  and  Trustees,  15. 


REMOVAL  OF  CAUSES. 

I.  CONSTITUTIONALITY  OF  STAT- 
UTES       20 

11.  WHAT     CONTBOVERSIES    ABE    BE- 

MOYABLF 21 

ir..  OBOUNDS  FOB  BEMOVAL 28 

Iir.  FBOOEDUBE 39 

I.  CONSTITUTIONAUTT  OF  STATUTES. 

1.  Acts  of  congress.  —  Act  of  Con- 
gress of  March  2,  1867,  amending  the  act 
of  July  27,  1866,  for  the  removal  of  causes 
from  state  courts,  by  which  amendatory  act 
it  is  provided  that  if  suits  then  pending,  or 
which  might  be  subsequently  brought  in  a 
state  court  "  in  which  there  is  a  controversy 
between  the  citizens  of  a  state  in  which  the 
suit  is  brought  :md  a  citizen  of  another 
state,  and  the  matter  in  dispute  exceeds  the 
sum  of  $500  exclusive  of  costs,"  the  suit 
may  be  removed  to  a  federal  court  upon 


petition  of  the  non-resident  party,  whether 
plaintifi  or  defendant,  at  any  time  before 
final  hearing  or  trial,  upon  filing  in  the  state 
court  an  affidavit,  stating  that  he  has  reason 
to  and  does  believe  that,  from  prejudice  or 
local  influence,  he  will  not  be  able  to  obtain 
justice  in  such  state  court,  is  constitutional 
and  valid.  Chicago  &*  N.  W.  Ji.  Co.  v. 
IVhitton,  13  IVall.  {U.  S.)  270.  4  Am.  Jiy. 
Rep.  462. 

2.  Minnesota.  —  Minn.  Act  of  1881, 
ch.  219.  entitled  "An  act  to  authorize  the 
Chicago,  St.  Paul,  Minneapolis  &  Omaha 
Railway  Company  to  acquire,  construct, 
maintain,  and  operate  railroads  in  the  state 
of  Minnesota,"  it  being  a  Wisconsin  corpo- 
ration, does  not  create  a  new  corporation, 
but  merely  enables  a  foreign  corporation  to 
enter  the  state ;  therefore,  the  provisions  of 
the  act  iliat  it  shall  be  deemed  a  domestic 
corporation  are  void  so  far  as  they  attempt 
to  prevent  the  removal  of  suits  from  state  to 
federal  courts.  Moore  v.  Chicago,  St.  P.,  M. 
&*  O.  E.  Co.,  21  Fed'.  Rep.  817,— Distin- 
guishing Stout  V.  Sioux  City  &  P.  R.  Co., 
8  Fed.  Rep.  794.  Followed  in  Chicago, 
St.  P.,  M.  &  O.  R.  Co.  V.  Dakota  Co.,  28 
Fed.  Rep.  219. 

Minnesota  Act  of  March  9,  1885,  entitled 
"  An  act  relating  to  foreign  corporations 
doing  business  in  this  state,"  is  repugnant 
to  the  constitution  of  the  United  Stales, 
and  void,  so  far  as  it  provides  for  certain 
penalties  against  foreign  corporations  which 
make  application  to  move  a  suit  into  a  fed- 
eral court.  Chicago,  M.  «S«»  St.  P.  R.  Co.  v. 
Becker,  32  Fed.  Rep.  849. 

3.  Ohio.  —  The  proviso  of  section  24  of 
Ohio  Act  for  the  creation  and  regulation  of 
incorporated  companies,  as  amended  March 
19,  1869,  so  far  as  it  provides  that  the  leas- 
ing, purchasing,  or  operating  a  railroad  in 
the  state  by  a  railroad  company  of  another 
state  shall  be  a  waiver  of  the  right  of  such 
foreign  company  to  remove  cases  brought 
against  it  in  tlie  state  courts  to  those  of  the 
United  States,  is  repugnant  to  the  constitu- 
tion and  laws  of  the  United  States,  and  is, 
therefore,  ineffective  as  a  statutory  waiver 
of  the  right  of  such  removal.  Baltimore 
&-  0.  R.  Co.  V.  Cary,  28  Ohio  St.  208,  14 
Am.  Ry.  Rep.  97. — Approved  in  Morgan  v. 
East  Tenn.  &  V.  R.  Co.,  4  Woods  (U.  S.) 
523.  Distinguished  in  Baltimore  &  O.  R. 
Co.  V.  Wiglitman,  29  Gratt.  (Va.)43i.  Fol- 
lowed IN  Morgan  v.  East  Tenn.  &  V.  R. 
Co.,  48  Fed.  Rep.  705. 


REMOVAL  OF  CAUSES,  4-7. 


81 


n.  WHAT  COHTKOTEBBIES    ABE 
-'.^MOVABLB. 

4.  In  general  —  Subject-matter  of 
suit.*  —  If  the  res  has  been  seized  as  an 
incident  of  a  controversy  between  citizens  of 
different  states,  then  the  removal  of  the 
cause  into  a  federal  court  transfers  the  res 
with  it  as  a  necessary  part  of  tiie  proceed- 
ings, and  the  fact  that  collateral  issues,  as 
connected  with  the  res,  have  sprung  up  in 
the  stale  court,  cannot  destroy  the  right  of 
removal,  provide'1  the  parties  themselves 
are  within  the  federal  statute.  Osgood  v. 
Chicago,  D.Sf'  V.  R.  Co.,6Biss.  {U.  S.)  330. 

The  rights  of  mortgage  bondholders  are 
paramount  to  the  rights  of  stockholders  of 
a  company.  So  where  the  stockholders 
have  commenced  suit  in  a  state  court  and 
have  put  ihe  mortgage  trustees  in  posses- 
sion of  the  company's  property,  this  does 
not  prevent  a  removal  of  another  suit 
brought  by  the  bondholders  to  enforce  the 
trust,  and  possession  of  the  property  must 
also  be  transferred  to  the  federal  court. 
Scott  v.  Clinton  &*  S.  Ji.  Co.,  6  Biss.  {U.  S.) 
529. 

A  suit  by  state  railroad  commissioners  to 
enforce  obedience  to  their  regulations  by  a 
railroad  company  cannot  be  removed  to  the 
United  States  court,  although  tlie  parties 
are  citizens  of  different  states,  and  t'..  an- 
swer raises  a  federal  question,  Dey  v.  Chi- 
cago, M.  &*  St.  P.  Ji.  Co.,  47  Am.  <S-  Ettg. 
A'.  Cas.  17,  45  Fed.  Rep.  8  ^— QUOTING 
Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265. 

5.  Suits  in  cquit}',  generally.  —  An 
act  of  ejectment  against  a  tenant  in  pos- 
session under  a  railroad  company  which 
claimed  title  to  the  land  was  commenced  in 
a  state  court.  Pending  the  suit,  the  com- 
pany made  a  perpetual  lease  of  the  land  to 
another  company,  though  neither  company 
made  itself  a  formal  party  to  the  ejectment 
suit ;  the  lessee  company,  however,  filed  a 
bill  in  equity  praying  an  injunction  against 
the  further  prosecution  of  the  ejectment 
suit,  and  for  relief,  but  no  matters  were  set 
up  in  the  bill  which  could  not  have  been 
pleaded  in  the  ejectment  suit.  Held,  that 
the  suit  in  equity  did  not  constitute  a  sepa- 
rate controversy,  such  as  could  be  removed 
to  a  federal  cour>,  unless  the  ejectment  sui 
could  have  been  removed,  though  there  was 

*  Removal  of  suits  to  federal   courts  where 
the  question  to  be  tried  is  the  value  of  land,  se 
note,  14  Am.  &  Eno.  R.  Cas.  422. 


some  difference  in  the  parties  to  the  two 
suits.  Richmond  6-  D.  R.  Co.  v.  Findley, 
32  Fed.  Rep.  641. 

G.  Suits  by  or  against  corporations, 
generally.— Where  stockholders  of  a  rail- 
road company  commence  s'i:t  against  their 
company  to  have  certain  stock  held  by 
another  company  declared  invalid,  the  fact 
that  an  officer  of  such  otlier  company  who 
is  an  inhabitant  of  another  state  makes  ap- 
plication to  remove  the  cause  to  a  federal 
court  is  no  ground  for  removal,  where  there 
is  no  controversy  as  to  who  owns  the  stock. 
Shumway  v.  Chicago  &*  I.  R.  Co.,  4  Fed. 
Rep.  385. 

Under  the  federal  constitution,  and  laws 
of  congress,  an  action  by  a  state  to  recover 
taxes  levied  against  a  corporation  organized 
under  the  laws  of  the  state  cannot  be  re- 
moved from  a  state  to  a  federal  court. 
People  V.  Southern  Pac.  R.  Co.,  65  Cat.  553, 
4  Pac.  Rep.  568. 

7.  Suits  by  or  against  federal  cor- 
porations.— (i)  Federal  decisions. — The 
Texas  Pacific  railway  and  the  Union  Pacific 
railway  are  corporations  existing  under  the 
laws  of  the  United  States,  although  certain 
other  roads  chartered  under  state  and  terri- 
torial laws  have  been  consolidated  with 
them.  Union  Pac.  R.  Co.  v.  Myers,  20  Am. 
6-  Eng.  R.  Cas.  3?4. 115  U.  S.  i,  5  Sup.  Ct. 
Rep.  1 1 13.  —  Followed  in  California  v. 
Central  Pac.  R.  Co.,  33  Am,  &  Eng.  R.  Cas. 
451,  127  U.  S.  I ;  Texas  &  P.  R.  Co.  v.  Cox, 
145  U.  S.  593,  12  Sup.  Ct.  Rep.  905. 

A  state  brought  suit  in  its  court,  against 
a  railroad,  to  collect  a  tax.  The  company 
defended  on  the  ground  that  it  derived  its 
charier  from  the  United  States  and  was  not 
taxable  under  state  laws,  and  that  the  law 
imposing  the  tax  violated  the  14th  amend- 
ment to  the  United  States  constitution. 
Held,  that  the  case  was  removable  to  a  fed- 
eral court,  under  the  Act  of  Congress  of 
March  3,  1875.  Southern  Pac.  R.  Co.  v.  Cali- 
fornia, 21  Am.  &*  Eng.  R.  Cas.  525,  118 
I/.  S.  109,  6  Sup.  Ct.  Rep.  993. 

Where  a  railroad  company  created  by  act 
of  congress  consolidates  with  another  com- 
pany created  under  state  laws,  the  former 
does  not  lose  its  rights  as  such,  and  may  re- 
move a  suit  against  it  from  a  state  to  a  fed- 
eral court,  notwithstanding  a  state  law  pro- 
vides that  if  any  company  organized  under 
the  laws  of  the  state  shall  consolidate  with 
another  organized  under  the  laws  of  another 
state,  or  the  United  State?,  the  same  shall 


^ 


22 


REMOVAL  OF  CAUSES,  8. 


not  thereby  become  a  foreign  corporation. 
Allen  V.  Texas  &-  P.  R.  Co.,  24  Am.  &*  Eng. 
R.  Cas.  18,  2$  Fed.  Rep.  513.— FOLLOWING 
Texas  &  P.  R.  Co.  v.  Kiric,  115  U.  S.  2,  5 
Sup.  Ct,  Rep.  1113. 

A  suit  by  a  railroad  corporation  created 
by  an  act  of  congress  is  a  suit  arising  under 
the  laws  of  the  United  States,  and,  as  such, 
is  removable  into  a  federal  court,  under  the 
act  of  March  3,  1875.  §  2  (18  U.  S.  St.  at 
L.  470).  Union  Pac.  R.  Co.  v.  McComb,  17 
ni,Ucli/.(U.  S.)  sio,  I  Fed.  Rep.  799,  58  How. 
Pt.  478.  Turton  v.  Union  Pac.  R.  Co.,  3  Dill. 
(U.S.)  i66. 

Defendant  was  sued  for  his  alleged  mis- 
use of  the  funds  of  the  Union  Pacific  rail- 
road and  for  his  fraudulent  acts  as  vice- 
president  of  the  company,  and  not  by  rea- 
son of  his  membership  of  the  corporation. 
f/eld,  that  his  petition  under  the  Act  of 
Congress  of  July  27,  1868  (Rev.  St.,  §  640), 
to  have  the  case  removed  to  the  United 
Stales  court  must  be  denied.  Gardv.  Dti- 
rant,^  Cliff.  (U.S.)  113. 

(2)  State  decisions.— In  an  action  against 
a  railroad  corporation  to  recover  damages 
for  the  destruction  of  a  field  of  rye  by  the 
diversion  of  a  natural  watercourse,  the  cor- 
poration filed  a  petition  for  removal  to  the 
federal  court  on  the  ground  solely  that  it 
was  a  corporation  organized  under  the  act 
of  congress  to  aid  in  the  construction  of  a 
railroad  to  the  Pacific.  Neld,  that  the  peti- 
tion was  properly  denied.  Union  Pac.  R. 
Co.  V.  Dyche,  14  Am.  &*  Eng.  R.  Cas.  272,  31 
Kan.  120,  I  Pac.  Rep.  243. 

Actions  commenced  in  state  courts  against 
corporations  created  by  acts  of  congress  are 
suits  arising  under  the  laws  of  the  United 
States,  and  as  such  may  be  removed  to  the 
United  States  courts ;  but  this  rule  does 
not  apply  to  corporations  organized  under 
the  laws  of  a  territory,  and  upon  which, 
after  their  organization,  certain  rights  and 
privileges  are  conferred  by  the  act  of  con- 
gress. Conlon  V.  Oregon  S.  L.  &*  U.  N.  R. 
Co.,  21  Oreg.  462,  28  Pac.  Rep.  501. 

A  suit  by  or  against  a  railroad  company 
chartered  by  the  United  States  may  be  re- 
moved from  a  state  to  a  federal  court  at  any 
time  before  a  final  hearing.  Ebyv.  North- 
ern Pixc.  R.  Co.,  13  P/tila.  (Pa.)  161. 

A  company  and  its  receiver  were  sued  for 
a  personal  injury  while  the  road  was  in  the 
hands  of  the  receiver.  It  was  alleged  in  the 
petition  that  the  receiver  had  been  dis- 
charged before  suit.    The  company  filed  its 


separate  application  for  removal  to  the 
United  States  circuit  court,  regular  in  form. 
/feld,  that  any  liability  of  the  receiver  ended 
with  his  discharge,  and  the  right  of  the 
company,  a  corporation  organized  under  an 
act  of  congress,  to  remove  could  not  be  af- 
fected by  the  fact  that  the  receiver  had  been 
made  a  party,  or  that  he  had  not  joined  in 
the  application  or  had  made  an  imperfect 
application  in  his  own  behalf  for  removal. 
Texas  &*  P.  R.  Co.  v.  Bloom,  85  Tex.  279, 20 
S.  W.  Rep.  133.— Following  Texas  &*  P. 
R.  Co.  V.  Johnson,  76  Tex.  421. 

8.  Suits  by  or  ngtiinst  foreign  cor- 
porations.*—A  railroad  construction  com- 
pany began  a  suit  in  a  state  court  to  estab- 
lish and  enforce  a  mechanic's  lien  as  prior  to 
the  lien  of  a  mortgage  on  the  road.  When 
a  decree  was  entered,  the  controversy  was 
between  the  mortgage  trustees,  citizens  of 
Pennsylvania  and  Ohio,  on  the  one  side, 
and  the  construction  company  and  the  rail- 
road company,  citizens  of  Iowa,  on  the 
other.  Held,  that  the  case  was  removable, 
without  reference  to  who  were  plaintiffs  or 
defendants.  Meyer  v.  Delaware  R.  Constr. 
Co.,  100  U.  S.  457,  21  Am.  Ry.  Rep.  465. 

Plaintiff,  a  citizen  of  Colorado,  filed  a 
stockholder's  bill  in  a  court  of  that  state 
against  his  company,  which  was  a  citizen  of 
the  state,  and  the  directors,  only  two  of 
whom  were  citizens  of  the  state,  and  against 
whom  no  relief  was  asked,  joining  also  as 
defendants  a  corporation  of  another  state 
and  certain  citizens  of  other  states.  Held, 
that  the  suit  was  removable  to  a  federal 
court  on  the  application  of  a  foreign  cor- 
poration and  the  individual  defendants 
connected  with  that  company.  Arapahoe 
County  Com'rs  v.  Kansas  Pac.  R.  Co.,  4  Dill. 
(t^.  5.)  277.— Followed  in  Barry  v.  Mis- 
souri, K.  &  T.  R.  Co.,  29  Am.  &  Eng.  R. 
Cas.  384,  27  Fed.  Rep.  i. 

Where  a  railroad  chartered  in  Pennsyl- 
vania consolidates  with  two  other  roads 
chartered  in  adjoining  states,  but  the  con- 
solidated road  retains  the  name  of  the 
original  road,  a  suit  against  the  consolidated 
road  in  Pennsylvania  by  a  citizen  of  that 
state  is  not  removable  from  a  state  to  a 
federal  court  on  the  ground  of  diverse  citi- 


*  Removal  of  proceedings  from  state  to  federal 
courts  where  foreign  corporation  is  party,  see 
note,  I  L.  R.  A.  65. 

Right  cannot  be  abridged  by  state  legislation, 
see  nntc,  3  L.  R.  A.  572. 


i 


^^-^ 


REMOVAL  OF  CAUSES,  9, 10. 


23 


zenship.    Johnson  v.  Philadelphia,  W.  &»  B. 
R.  Co.,  9  Fed.  Rep.  6. 

9.  Cases  '*  arising  under  a  law  of 
the  United  States."— A  case  in  law  or 
equity  consists  of  the  right  of  one  party,  as 
well  as  the  other,  and  may  be  said  to  arise 
under  the  constitution  or  the  laws  of  the 
United  States,  whenever  its  correct  decision 
depends  on  the  construction  of  either.  Co- 
hem  v.  Virginia,  f>  Wheat.  {U.S.)  264. 

Cases  arising  under  the  laws  of  the  United 
States  are  such  as  grow  out  of  the  legisla- 
tion of  congress,  whether  they  constitute  the 
right  or  privilege,  or  claim  or  protection, 
or  defense  of  the  party,  in  whole  or  in  part, 
by  whom  they  are  asserted.  Tennessee  v. 
Davis,  100  U.  S.  257. 

A  state  brought  suit  in  one  of  its  courts 
against  a  railroad  company  to  have  a  bridge 
across  a  navigable  river  removed.  Tlie 
company  in  its  defense  relied  on  an  act  of 
congress  authorizing  'he  bridge.  Held,  that 
it  was  a  case  arising  under  the  laws  of  the 
United  States,  and  therefore  removable  to 
the  federal  courts,  under  act  of  March  3, 
1875.  New  Orleans,  M.  &>  T.  R.  Co.  v. 
Mississippi,  102  U.  S.  135.— Applied  in 
Illinois  ex  rel.  %>.  Illinois  C.  R.  Co.,  16  Fed. 
Rep.  881.  Distinguished  in  Alabama  v. 
Wolffe,  18  Fed.  Rep.  836.  Followed  in 
Kentucky  r/.  Louisville  Bridge  Co.,  42  Fed. 
Rep.  241. 

Railroads  chartered  by  congress  have  a 
right  to  remove  suits  against  them  from  the 
state  to  the  federal  courts  under  the  act  of 
March  3,  1875,  providing  for  the  removal  of 
suits  "arising  under  the  laws  of  the  United 
States."  Union  Pac.  R,  Co.  v.  Myers,  20 
Am.  &*  Eng.  R.  Cas.  324, 115  U.  S.  i,  5  Sup. 
Ct.  Rep.  II 13.— Distinguished  in  Seattle 
&  M.  R.  Co.  V.  State,  52  Fed.  Reo.  594. 
Followed  in  Allen  v.  Texas  &  P.  R.  Co., 
24  Am.  &  Eng.  R.Cas.  18,  25  Fed.  Rep.  513  ; 
Mineral  Range  R.  Co.  v.  Detroit  &  L.  S. 
Copper  Co.,  25  Fed.  Rep.  515.  Referred 
TO  in  People  ex  rel.  v.  Colorado  C.  R.  Co., 
45  Am.  &  Eng.  R.  Cas.  599,  42  Fed.  Rep. 
638. 

A  case  arises  "  under  the  constitution  or 
laws  of  the  United  States,"  within  the  act  of 
1875,  §  2,  whenever,  upon  the  whole  record, 
there  is  a  controversy  involving  the  con- 
struction of  either.  Van  Allen  v.  Atchison, 
C.  &-P.  R.  Co.,  I  McCrary  {U.  S.)  598,  3 
Fed.  Rep.  545. 

A  suit  by  or  against  a  corporation  formed 
under  an  act  of  congress  is  not  ncccssai  ily 


a  suit  arising  under  the  laws  of  the  United 
States,  so  as  to  be  removable  on  that  ground 
from.a  state  to  a  federal  court,  under  the  act 
of  March  3,  1875.  Myers  v.  Union  Pac.  R. 
Co.,  3  McCrary  ( U.  S.)  578. 

In  order  to  deprive  a  state  court  of  juris- 
diction of  a  cause  by  removing  it  to  a  fed« 
eral  court,  on  the  ground  that  the  contro- 
versy involves  a  question  arising  under  the 
constitution,  laws,  or  treaties  of  the  United 
States,  it  must  be  made  tu  appear  clearly 
and  unmistakably  from  the  record  that  the 
cause  or  controversy  necessarily  involves 
the  consideration  and  determination  of  such 
federal  question.  It  is  not  sufficient  for  it 
to  appear  that  a  federal  question  may  possi- 
bly arise.  State  v.  Chicago,  M.  &*  St.  P.  R. 
Co.,  33  Fed.  Rep.  391. 

The  mere  allegation  in  a  complaint  that 
plaintiiT  is  a  corporation  created  by  act  of 
congress  shows  that  the  suit  is  one  arising 
under  the  laws  of  the  United  States.  Union 
Pac.  R.  Co,  v.  McComb,  17  Blatchf.  (U.  S.) 
Sio,  I  Fed.  Rep.  799,  58  How.  Pr.  {N.  K.) 
478. 

10.  Cases  arising  under  the  In- 
terstate Commerce  Act.* — Where  a 
shipper  sues  an  interstate  carrier,  charging 
an  unjust  discrimination  in  rates,  and  in 
affording  other  shippers  better  facilities,  and 
for  extortion  in  rates^  though  the  action  be 
in  form  one  at  common  law,  without  spe- 
cially referring  to  tlie  Interstate  Commerce 
Act,  yet  it  is  removable  to  a  federal  court, 
under  the  Act  of  Congress  of  March  3, 1887, 
where  defenses  are  set  up  under  the  Inter- 
state Commerce  Act.  Lowry  v.  Chicago,  B. 
^^  Q.  R.  Co.,  46  Fed.  Rep.  83. 

The  plaintiff  may  be  content  to  rest  his 
case  on  the  common  law  liability  of  com- 
mon carriers,  but  he  cannot  thereby  deprive 
the  defendant,  as  a  carrier  of  interstate 
commerce,  of  any  defense  it  has  under  the 
Interstate  Commerce  Act.  A  case  arises 
under  a  law  of  the  United  States,  whenever 
that  law  is  the  basis  of  the  right  or  privilege, 
or  claim  or  protection,  or  defense  of  the 
party,  in  whole  or  in  part,  by  whom  it  is 
set  up.  It  is  enough  that  there  is  a  federal 
question  in  the  case,  whether  it  is  relied  on 
by  the  plaintifT  or  the  defendant.  Lowry  v. 
Chicago,  B.  &*  Q.  R.  Co.,  46  Fed.  Rep.  83. 


*  Removal  of  causes  to  federal  court  under 
Interstate  Commerce  Act.  When  a  federal  ques- 
tion is  raised,  see  46  Am.  &  Eng.  R.  Cas.  636, 

ii/>s/r. 


^ 


24 


REMOVAL  OF  CAUSES,  11-15. 


11.  Actions  againHi  federal  offi- 
cers.—A  suit  by  a  railroad  against  a  cus- 
tom-house officer  to  recover  freights  col- 
lected on  imported  goods,  though  the 
collection  is  no  part  of  his  official  duties, 
is  removable  from  a  state  to  a  federal 
court,  as  an  "  act  done  under  color  of  office," 
within  the  meaning  of  U.  S.  Rev.  St.,  §  C43. 
Cleveland.  C,  C.  &*  I.  R.  Co.  v.  McClung,  28 
Am.  &*  Eng.  K.  Cas.  70,  119  U.  S.  454, 7  S>'A 
Ct.  Rep.  262. 

12.  Actions  for  causiner  death.— 
A  statute  of  Wisconsin  provides  that 
"  whenever  the  death  of  a  person  shall  be 
caused  by  a  wrongful  act,  neglect,  or  default, 
and  the  act,  neglect,  or  default  is  such  as 
would  (if  death  had  not  ensued)  have  en- 
titled the  party  injured  to  maintain  an  action 
and  recover  damages  in  respect  thereof, 
then,  and  in  every  such  case,  the  person  who, 
or  the  corporation  which,  would  have  been 
liable,  if  death  had  not  ensued,  shall  be  liable 
to  an  action  for  damages,  notwithstanding 
the  death  of  the  person  injured  ;  provided, 
that  such  action  shall  be  brought  for  a  death 
caused  in  this  state,  and  in  some  court 
established  by  the  constitution  and  laws  of 
the  same."  Held,  that  the  proviso,  requir- 
ing that  the  action  be  brought  in  a  state 
court,  does  not  prevent  a  non-resident 
plaintiff  from  removing  the  action  under 
the  Act  of  Congress  of  March  2,  1867,  to  a 
federal  court  and  maintaining  it  there.  Chi- 
cago &*  N.  IV.  R.  Co.  v.  Whilton,  13  Wall. 
(U.  S.)  270,  4  Am.  Ry.  Rep.  462. — APPLIED 
IN  Mineral  Range  R.  Co.  v.  Detroit  &  L.  S. 
Copper  Co.,  25  Fed.  Rep.  515.  Quoted  in 
St.  Louis;  A.  &  T.  H.  R.  Co.  v.  Indianapolis 
&  St.  L.  R.  Co.,  9  Biss.  (U.  S.)  144  ;  Holmes 
V.  Oregon  &  C.  R.  Co.,  6  Sawy.  (U.  S.)  262, 
5  Fed.  Rep.  75.  Reviewed  in  Pacific  R. 
Co.  V.  Missouri  Pac.  R.  Co.,  5  McCrary  (U. 
S.)  373. 

A  non-resident  defendant  may  remove  a 
suit  brought  under  a  state  statute  giving  a 
right  of  action  for  wrongfully  causing 
death.  Brisenden  v.  Chamberlain,  53  Fed. 
Rep.  307.— Applying  Texas  &  P.  R.  Co.  v. 
Cojt,  145  U.S.  594.  12  Sup.  Ct.  Rep.  905; 
Dennick  v.  Central  R.  Co.,  103  U.  S.  11 ;  Ex 
parte   McNiel,  13  Wall.  (U.  S.)  243. 

13.  Ejectment  suits.  —  Where  a  rail- 
road company  takes  a  perpetual  lease  of 
land  pending  an  ejectment  suit  against  the 
lessor,  the  company's  right  of  removal  is 
only  such  as  existed  in  the  lessor.  Rich- 
mond &*  D.  R.  Co.  V.  Findley,  32  Fed.  Rep. 


641. — Following  Gibson  v,  Bruce,  108  U. 
S.  561,  2  Sup.  Ct.  Rep.  873  ;  Cable  v.  Ellis, 
no  U.  S.  389,  4  Sup.  Ct.  Rep.  8$  ;  Houston 
&  T.  C.  R.  Co.  V.  Shirley,  1 1 1  U.  S.  358,  4 
Sup.  Ct.  Rep.  472. 

14.  Foreclosure  suits.  —  Trustees  in 
a  railway  mortgage,  who  were  citizens  of 
Massachusetts,  commenced  a  foreclosure 
proceeding  in  a  state  court  of  Iowa  against 
a  company  which  was  organized  under  the 
laws  of  the  latter  state,  but  united  two  other 
corporations  of  other  states  as  defendants, 
which  claimed  liens  on  the  property,  and 
subsequently  the  plaintiiTs  had  the  cause 
removed  to  a  federal  court  under  the  act  of 
1867  (U,  S.  Rev.  St.,§  639).  The  debtor 
corporation  moved  to  remand  the  same  on 
the  ground  that  the  defendants  were  not  all 
citizens  of  the  same  state.  Held,  that  the 
case  was  clearly  within  the  act  of  March  3, 
1875,  §  2,  and  involved  the  priority  of  liens 
between  citizens  of  different  states,  and  that 
the  federal  court,  therefore,  had  jurisdiction. 
Burnham  v.  Chicago,  D.  &*  M.  R.  Co.,  4 
Dill.  (U.S.)  102. 

15.  Eniiueiit  domain  proceedings 
—When  reniovahle.*— Eminent  domain 
proceedings  may  be  removed  to  federal 
courts  like  other  suits,  after  being  trans- 
ferred from  commissioners  to  a  state  court 
of  appeals.  Mississippi  &•  R.  R.  Boom  Co.  v. 
Patterson,  98  U.  S.  403.  —  APPLIED  IN  Mt. 
Washington  R.  Co.  v.  Coe,  50  Fed.  Rep. 
637.  Followed  in  Mineral  Range  R.  Co. 
V.  Detroit  &  L.  S.  Copper  Co.,  25  Fed.  Rep. 
515;  Minneapolis,  St.  P.  &  S.  St.  M.  R.  Co. 
V.  Nestor,  50  Fed.  Rep.  i. — Searl  v.  School 
Dist.  No.  2.  124  U.  S.  197,  8  Sup.  Ct.  Rep. 
460.— Followed  in  Kansas  City  &  T.  R. 
Co.  V.  Interstate  Lumber  Co.,  37  Fed.  Rep. 
3. — Northern  Pac.  Terminal  Co.  v.  Lowen- 
berg,  14  Am.  &>•  Eng.  R.  Cas.  418,  9  Sawy. 
{U.  S.)  348,  18  Fed.  Rep.  339.  Kansas  City 
6^  T.  R.  Co.  V.  Interstate  Lumber  Co.,  37 
Fed.  Rep.  3.— FOLLOWING  Searl  v.  School 
Dist.  No.  2,  124  U.  S.  197,  8  Sup.  Ct.  Rep. 
460. 

But  the  federal  court  must  adapt  the  pro- 
cedure to  the  state  statute.  Warren  v. 
Wisconsin  Valley  R.  Co.,  6  Biss.  {U.  S.)  425. 

And  a  case  may  be  removed  directly 
from  a  probate  court  to  the  federal  court. 
Mineral  Range  R.  Co.  v.  Detroit  &*  L.  S. 

*  Right  to  remove  condemnation  proceedings 
from  state  to  federal  court,  see  47  Am.  &  Eng. 
R.  Cas.  25,  abstr. 


\ 


REMOVAL  OF  CAUSES,  Ifl,  It. 


25 


Copper  Co.,  2$  F'd.  Rep.  515.— APPLYING  In 
re  New  York  C.  R.  Co.,  66  N.  Y.  407; 
Warren  v.  Wisconsin  Valley  R.  Co.,  6  Biss. 
(U.  S.)  425  ;  Chicago  &  N.  W.  R.  Co.  v. 
Whitton,  13  Wall.  (U.  S.)  270;  Weston  v. 
Charleston  City  Council,  2  Pet.  (U.  S.)  449 ; 
Kohl  V.  United  States.  91  U.  S.  367.  Ex- 
plaining Toledo,  A.  A.  &  G.  T.  R.  Co.  v. 
Dunlap,  47  Mich.  456;  Port  Huron  &  S.  W. 
R.  Co.  T/.  Voorheis,  50  Mich.  506.  Follow- 
ing Mississippi  &  R.  R.  Boom  Co.  v.  Pat- 
terson, 98  U.  S.  403  ;  Union  Pac.  R.  Co.  v. 
Myers,  115  U.  S.  i,  5  Sup.  Ct.  Rep.  in 3. 

Where  the  parties  to  a  condemnation  pro- 
ceeding are  citizens  of  different  states,  and 
there  is  nothing  in  controversy  except  th», 
value  of  the  land  to  be  taken,  the  proceed- 
ing may  be  removed  to  a  federal  court,  not- 
withstanding the  statutes  provide  a  special 
mode  for  the  assessment  of  damages.  Colo- 
rado Midland  R.  Co.  v,  Jones,  29  Fed.  Rep. 
193.— Quoting  Baltimore  &  O.  R.  Co.  v. 
Pittsburg.  W.  &  K.  R.  Co.,  17  W.  Va.  812. 

Where  a  state  delegates  the  right  of  emi- 
nent domain,  and  the  proceeding  is  between 
a  landowner  and  a  railroad  company,  the 
state  is  not  a  party  to  the  proceeding  so  as 
to  deprive  a  federal  court  of  jurisdiction  of 
such  proceeding,  on  removal  of  it  from  a 
state  court.  Warren  v.  Wisconsin  Valley 
R.  Co.,  6  Biss.  (17.  S.)  425.  -Applied  in 
Mineral  Range  R.  Co.  7>.  Detroit  &  L.  S. 
Copper  Co.,  25  Fed.  Rep.  515. 

16.  wlivii   not  removable.  — '\ 

petition  by  a  city  against  two  railroad  com- 
panies as  lessor  and  lessee  of  certain  lands, 
for  the  purpose  of  condemning  a  portion  of 
it  in  order  to  extend  a  street,  is  not  remov- 
able from  the  st;ite  court  to  a  United  Stales 
circui*  court  on  the  ground  of  a  separable 
controversy  between  the  lessee  company  and 
the  city.  Rellaire  v.  Baltimore  &^  O.  R.  Co., 
146  C/.S.  117,  13  Sup.  Ct.  Rep.  16.— Fol- 
lowed in  Washington  v.  Columbus  &  C. 
M.  R.  Co.,  53  Fed.  Rep.  673. 

A  petition  filed  under  the  Connecticut 
statutes,  by  a  railroad  company  with  the 
railroad  commissioners  of  the  stale,  to  ob- 
tain their  consent  to  condemn  certain  lands, 
is  not  a  civil  suit  within  the  meaning  of  the 
federal  statutes,  and  is,  therefore,  not  re- 
movable, since  the  proceeding  invcjlves  only 
the  consent  of  the  railroad  commissioners. 
New  York,  N.  H.  SfH.  R.  Co.  v.  Cockcroft, 
AdFed.Rep.  881. 

Where  a  condemnation  proceeding  is 
commenced  in  a  state  court,  and  various 


parties,  both  domestic  and  foreign,  are  made 
defendants,  the  proceeding  is  not  removable 
to  a  federal  court  on  the  application  of  two 
corporations  of  other  states  which  have 
been  joined  as  defendants,  unless  the  record 
shows  a  separable  controversy.  The  bare 
assertion  in  the  petition  for  removal  by  one 
defendant  that  there  is  a  separable  contro- 
versy is  not  sufficient.  Seattle  &»  M,  R.  Co. 
v.  State,  52  Fed.  Rep.  594. 

And  such  proceeding  cannot  be  removed 
by  a  corporation  created  under  federal  laws, 
which  is  made  a  defendant,  where  the  record 
does  not  show  that  it  is  concerned  in  the 
litigation.  In  such  case  no  question  arises 
under  the  constitution  or  laws  of  the  United 
States.  Seattle  &'  M.  R.  Co.  v.  State,  52 
Fed.  Rep.  594.  —  Applying  Mitchell  v. 
Smale,  140  U.  S.  406,  11  Sup.  Ct.  Rep.  819. 
Distinguishing  Union  Pac.  R.  Co.  v. 
Kansas  City.  115  U.  S.  i,  5  Sup.  Ct.  Rep. 

III3- 
In  a  proceeding  to  condemn  a  right  of 

way  by  a  railway  company  over  lands  held 
by  another  company,  partly  under  grant  of 
the  United  States  and  partly  by  condemna- 
tion, the  latter  company  moved  the  court 
to  transfer  the  cause  to  the  circuit  court  of 
the  United  States,  on  the  ground  that  it 
owes  duties  to  the  United  States  which  it 
could  not  discharge  efficiently  if  its  right  of 
way  was  taken,  which  motion  was  over- 
ruled. Held,  that  there  was  no  error  in  re- 
fusing to  transfer  the  cause  under  act  of 
1875.  Illinois  C.  R.  Co.  v.  Chicago,  B.  Gf  N. 
R.  Co.,  30  Am.  &-  Eng.  R.  Cas.  287,  122  ///. 
473,  13  A'.  E.  Rep.  140,  II   West.  Rep.  133. 

A  foreign  corporation  cannot  in  the 
United  States  courts  condemn  the  land  of  a 
citizen  of  the  state  for  the  use  of  the  cor- 
poration, and  proceedings  of  that  nature 
instituted  in  the  state  courts  cannot  be  re- 
moved to  the  federal  courts.  Baltimore  &* 
O.  R.  Co.  V.  Pittsburg,  W.  .S-  K.  R.  Co.,  10 
Am.&'  Eng.  R.  Cas.  444,  17  W.  Va.  812. 

1 7.  Maiidainiis  proceeiliiigs.  —  A 
mandamus  proceeding  in  a  state  court,  un- 
der Kan.  Gen.  St.,  1868,  p.  766,  to  compel  a 
railroad  company  to  register  a  transfer  of 
certificates  of  stock,  is  "a  suit  of  a  civil 
nature"  within  the  meaning  of  the  Act  of 
Congress  of  March  3, 1875,  providing  for  the 
removal  of  causes.  Washington  Imp.  Co. 
V.  Kansas  Pac  R.  Co.,  5  Dill.  (U.  S.)  489. 

A  circuit  court  of  the  United  States  has 
no  jurisdiction  in  mandamus,  except  in  aid 
of  a  jurisdiction  previously  acquired,  and, 


26 


REMOVAL  OF  CAUSES,  18-20. 


therefore,  an  original  mandamus  proceeding 
brought  at  the  relation  of  a  city  to  compel 
railroads  to  lower  a  street  crossing  is  not 
removable  on  the  application  of  non-resi- 
dent defendants.  State  ex  rel.  v.  Columbus 
<S-  X.  R.  Co.,  48  Fed.  Rep.  626— Follow- 
ing Rosenbaum  v,  Bauer,  120  U.  S.  450,  7 
Sup.  Ct.  Rep.  633. 

Where  such  proceeding  is  in  the  name  of 
the  state,  at  the  relation  of  the  city,  it  is  a 
proceeding  in  which  the  state  is  the  real 
party,  which  in  itself  deprives  the  circuit 
court  of  jurisdiction.  State  ex  rel.  v.  Colum- 
bus C>"  X.  R.  Co.,  48  Fed.  Rep.  626.— FOLLOW- 
ING New  Hampshire  v.  Louisiana,  108  U.  S. 
76,  2  Sup.  Ct.  Rep.  176;  New  Jersey  v.  Bab- 
cock,  4  VVa^h.  (U.S.)  344;  Adams  I/.  Bradley, 
SSawy.  (U.  S.)2i7. 

And  the  fact  that  one  of  the  railroads 
claims  a  vested  right  in  the  crossing,  which 
is  entitled  to  protection  under  the  constitu- 
tion of  the  United  States,  will  not  give  the 
circuit  court  jurisdiction.  The  question 
may  be  raised  in  a  state  court,  and  if  proper 
protection  is  not  given  an  appeal  may  be 
ha'  to  the  supreme  court  of  the  United 
States.  State  ex  rel.  v.  Columbus  &*  X.  R. 
Co.,  48  Fed.  Rep.  626. 

And  where  the  several  roads  which  arc 
made  defendants  use  such  crossing  jointly, 
the  proceeding  does  not  involve  a  separable 
controversy  as  between  the  state  and  one  of 
the  companies.  State  ex  rel.  v.  Columbus  <&^ 
X.  R.  Co.,  48  Fed.  Rep.  626. 

18.  Probate  proceedings.— A  pro- 
ceeding in  a  state  court  exercising  probate 
jurisdiction,  by  a  creditor  of  a  railroad, 
against  the  estate  of  one  who  had  bought 
depreciated  stocit  of  the  company,  to  charge 
th-  eta.  •  .  itii  the  difference  between  what 
./.iS  I .  '.  '  ;ii;d  the  f.'.ce  value  of  the  stock, 
is  a'  'suit.  "  '  'n  the  meaning  of  the  fed- 
..-(.  'cN.  \ .  ..  iin,^  for  the  removal  of  suits 
(corn  s  ii  I  '•  'eral  courts,  and  the  re- 
moval "it! ,  li-  r.i'f'e,  though  the  state  statute 
gives  the  state  court  exclusive  jurisdiction 
of  the  settlement  of  estates.  Clark  v.  Bever, 
139  U.  S.  96,  II  Sup.  Ct.  Rep.  468;  affirm- 
ing 31  Fed.  Rip.  670. 

In  such  case  the  amount  of  the  claim 
determines  the  jurisdiction  of  the  supreme 
court  on  writ  of  error,  and  that  being  above 
$5000,  the  court  has  jurisdiction,  without 
reference  to  what  might  be  realized  from  the 
estate  if  the  claim  should  be  established. 
Clark  V.  Bever,  139  U.  5. 96,  1 1  Sup.  Ct.  Rep. 
468;  affirming  31  Fed.  Rep.  670. 


10.  Quo  warranto  proceedings.— 

A  civil  suit  in  the  nature  of  a  quo  war- 
ranto, brouglit  by  a  state  in  a  state  court, 
against  a  railroad  organized  under  state 
laws,  may,  where  it  presents  questions  aris- 
ing under  the  laws  of  the  United  States,  be 
removed  to  the  U.  S.  circuit  court,  under 
the  Act  of  Congress  of  March  3,  1875,  pro- 
viding "  that  the  circuit  courts  of  t)ie  United 
States  shall  have  original  cognizance,  con- 
current with  the  courts  of  the  several  states, 
of  all  suits  of  a  civil  nature  at  common  law, 
or  in  equity,  *  ♦  ♦  arising  undec  the  consti- 
tution or  laws  of  the  United  States;"  and 
also  that  suits  of  the  same  nature  may  be 
removed  to  the  circuit  courts.  Ames  v. 
Kansas  ex  rel.,  16  Am.  &•  Enjf.  /i'.  Cas.  522, 
III  U.  S.  449,  4  Sup.  Ct.  Rep.  437, 

Under  the  code  practice  of  Kansas  where 
the  common  law  forms  of  action  are  abol- 
ished, a  proceeding  by  the  state  against  a 
railroad,  by  information,  in  the  nature  of  a 
quo  warranto,  is  a  civil  action,  within  the 
meaning  of  the  laws  providing  for  the  re- 
moval of  civil  causes  from  state  to  federal 
courts.  Ames  v.  Kansas  ix  rel.,  16  Am.  &* 
Eng.  R.  Cas.  522,  in  U.  S.  449,  4  Sup.  Ct. 
Rep.  437. 

And  such  a  proceeding  against  a  railroad 
chartered  under  a  state  law,  to  test  the 
validity  of  a  consolidation  with  other  com- 
panies under  an  act  of  congress,  presents 
questions  arising  under  the  laws  of  the 
United  States,  within  the  meaning  of  the 
law  for  the  removal  of  such  questions  to 
the  federal  courts.  Ames  v.  Kansas  ex  rel. , 
16  Am.  &^  Eng.  R.  Cas.  522,  ill  U.S.  449, 
4  Sup.  Ct.  Rep.  437. 

An  information  in  the  nature  of  a  quo 
warranto,  under  III.  Rev.  St.  ch.  112,  to  in- 
quire by  what  authority  a  railroad  company 
exercises  possessory  rights  over  certain  lands, 
is  a*  civil  action,  within  the  meaning  of  the 
Act  of  Congress  of  March  3,  1887,  provid- 
ing for  the  removal  of  causes.  Illinois  ex 
rel.  V.  Illinois  C.  R.  Co..  33  Fed.  Rep.  721. 

20.  Proceedings  by  coiinsci  to  col- 
lect fees.— After  the  property  of  a  railroad 
had  been  sold  under  a  decree  and  passed 
into  the  hands  of  the  purchasers,  and  while 
tiie  matter  was  before  a  master  to  ascertain 
the  amounts  of  certain  declared  liens,  the 
purchasers  of  the  road  settled  all  liens  and 
claims,  refusing  counsel  for  complainants 
any  compensation  for  their  services  with  re- 
spect to  a  certain  class  of  hens.  Thereupon 
the  attorneys  filed  a  petition  in   the  same 


REMOVAL  OF  CAUSES,  21-23. 


S7 


court,  against  the  purchasers  to  establish 
their  lien  for  fees.  Held,  that  this  petition 
was  not  a  mere  appendage  ot  the  original 
suit,  but  was  a  new  suit  in  equity,  which 
might  be  removed  from  the  state  to  a 
federal  court  under  the  act  of  March  3, 
1875.  Pettm  V.  Georgia  R.  &>  B.  Co.,  3 
Woods  (U.S.)  620 

21.  Criminal  prosecutions.— An  ac- 
tion In  the  form  of  a  civil  suit  to  recover 
the  penalty  prescribed  by  section  27  of  the 
Iowa  Act  of  April  5,  1888,  which  enacts  that 
any  railroad  company  "guilty  of  extortion 
shall  forfeit  and  pay  the  state  of  Iowa  not 
less  than  $1000  nor  more  than  $5000,  to  be  re- 
covered in  a  civil  action  by  ordinary  pro- 
ceedings instituted  in  the  name  of  the  state," 
is,  notwithstandmg  its  form,  criminal  in  its 
nature,  and  is  not  removable  to  the  federal 
courts.  Iowa  v.  Chicago,  B.  &*  Q.  R.  Co., 
37  Am.  &»  Eng.  R.  Cas.  721,  37  Fed.  Rep.  497. 

22.  Rig:lit  of  removal  as  <lepeutleut 
upon  amount  in  controversy.— As  af- 
fecting the  right  to  remove  a  cause  to  the 
federal  court,  the  amount  in  controversy  is 
the  amount  claimed  in  the  declaration. 
Gordon  v.  Longest,  16  Pet.  {U.  S.)  97. — Ap- 
proved IN  Beery  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  64  Mo.  533. 

A  suit  brought  in  a  state  court  of  New 
York,  by  a  citizen  of  that  state  against  a 
citizen  of  Connecticut,  as  treasurer  of  an 
express  company,  a  joint-stock  association 
of  New  York,  which  is  a  partnership  and 
not  a  corporation,  and  is,  by  a  statute  of 
New  York,  suable  by  its  treasurer,  the  suit 
being  to  restrain  the  maintenance  of  an  awn- 
ing over  part  of  a  street  adjoining  the  plain- 
tiff's premises,  involves  more  than  $500,  if 
the  value  of  the  right  to  maintain  tlie  awn- 
ing is  more  than  $500,  and  is  a  suit  between 
citizens  of  different  states,  and,  therefore, 
triable  m  the  United  States  courts.  Whit- 
man V.  Hubbell,  24  Blatchf.  {[/.  S.)  240. 

In  an  action  sounding  m  tort,  where  the 
sole  right  ot  action  is  lor  the  recovery  of 
unliquidated  damages,  the  amount,  if  stated 
in  the  complaint,  or  in  the  prayer  for  judg- 
ment, must,  for  the  purposes  of  removal,  be 
taken  as  the  true  measure  of  the  value  of 
the  matter  in  dispute.  So  where  a  com- 
plaint, in  an  action  for  damages  for  negli- 
gently causing  death,  states  that  the  surviv- 
ing relatives  have  been  damaged  by  reason 

of  the  death  "  in  the  sum  of thousand 

dollars."  and  the  prayer  demands  judgment 
"for thousand  dollars,"  it  will  be  con- 


strued as  a  suit  for  $1000,  and  cannot  be  re- 
moved to  a  federal  court  because  the  peti- 
tion for  removal  charges  that  the  amount 
in  controversy  exceeds  (2000,  the  amount 
necessary  to  give  the  court  jurisdiction. 
Varde  V.Baltimore  &*  O.  R.  Co.,  57  Fed. 

Rep.  913- 

23.  Amendments  of  the  ad  dam- 
num.—Where  a  complaint  asks  damages 
in  a  sum  less  than  $500,  and  Is,  after  the 
evidence  has  been  introduced,  amended  by 
leave  of  the  court  so  as  to  claim  judgment 
for  a  sum  exceeding  $500,  thereby  bringing 
the  claim  within  the  amount  necessary  to 
secure  a  removal  to  the  federal  courts,  a 
judgment  for  plaintiff  will  not  be  reversed 
on  writ  of  error  from  the  United  States  su- 
preme court  on  the  ground  that  defendant 
was  thereby  deprived  of  his  right  of  remov- 
ing the  cause  to  the  federal  courts,  when  it 
appears  that  he  only  excepted  to  the  action 
of  the  court  in  permitting  the  amendment, 
and  did  not  make  any  application  for  the 
removal  of  the  cause.  Northern  Pac.  R.  Co. 
V.  Austin,  43  Am.  St*  Eng.  R.  Cas.  7,  135  I/, 
S.  315,  10  Sup.  Ct.  Rep.  758. 

A  motion  was  made  to  dismiss  a  suit  to 
recover  damages  to  property,  for  the  want  of 
jurisdiction  in  that  the  ad  damnum  in  the 
writ  and  declaration  was  less  than  $2000, 
the  amount  fixed  as  the  minimum  limit  of 
the  jurisdiction  of  a  federal  circuit  court  by 
the  Act  of  Congress  of  March  3,  1887.  It 
appeared  that  the  suit  was  commenced  a 
few  days  after  that  act  was  passed,  and 
evidently  in  ignorance  of  the  changes  made 
by  it.  The  plaintiff  moved  to  amend  the 
writ  and  declaration  by  increasing  the  ad 
damnum  to  $2500.  Held,  that  the  amend- 
ment should  be  allowed,  as  the  court  could 
not  judicially  know  that  the  increased 
amount  was  but  factitious  to  give  the  court 
jurisdiction.  It  is  only  when  the  court  can 
plainly  see  that  its  jurisdiction  is  being 
fraudulently  invoked  that  it  will  deny  the 
amendment  or  dismiss  the  cause.  Davis  v. 
Kansas  City,  S.  &•  M.  R.  Co.,  32  Fed.  Rep. 
863.— Distinguishing  Bowman  z/.  Chicago 
&  N.  W.  R.  Co.,  115  U.  S.  611,  6  Sup.  Ct. 
Rep.  192  ;  Hartog  v.  Memory,  116  U.  S.  588, 
6  Sup.  Ct.  Rep.  521. — Austin  v.  Northern 
Pac.  R.  Co.,  34  Minn.  473,  26  N.  W.  Rep. 
607. 

So  far  as  affects  the  right  of  removal  from 
a  state  to  a  federal  court,  in  actions  based 
upon  tort,  the  amount  in  controversy  is  the 
amount  stated  in  the  ad  damnuui  of  plain- 


■!!!!■■ 


{ 


28 


REMOVAL  OF  CAUSES,  24,  25. 


Wi 


lifT's  declaration,  though  a  less  sum  may 
be  claimed  in  the  body  of  the  declaration  ; 
and  where  the  amount  in  the  ad  damnum  is 
fixed  at  more  than  $500,  the  cause  is  remov- 
able, and  it  is  error  for  tiie  court  to  permit 
tlie  plaintiff  to  amend  his  complaint  by  re- 
ducing the  damages  below  $500  after  peti- 
tion, bond,  and  motion  are  filed  for  a  re- 
moval. LouisviUe  6-  A^  /?.  Co.  v.  Roehling, 
II  III.  App.  26\. 

III.  OBOUKDS  FOB  BEMOTAL. 

24.  When  a  federal  question  Is 
raised,  generally.— A  state  brought  an 
action  in  a  state  court,  against  a  railroad 
company  for  unjust  discrimination  in  the 
violation  of  a  state  law ;  and  the  company 
petitioned  a  removal  to  a  federal  court  on 
the  ground  that  the  state  statute  impaired 
its  charter,  in  violation  of  the  constitution 
of  the  United  States.  Held,  that  it  was  not 
necessary,  for  the  purpose  of  removal,  to 
decide  that  the  claim  of  the  company  could 
be  sustained.  It  is  sufficient  if  it  appears 
that  a  question  arises  under  the  constitu- 
tion of  the  United  States.  People  v.  Chi- 
cago, B.  <S-  Q.  R.  Co.,  II  Biss.  {U.  S.)  584, 
16  Fed.  Rep.  706. 

A  state  commenced  an  action  in  the  nature 
of  quo  warranto,  to  prevent  a  railroad  com- 
pany from  controlling  certain  lands,  and  in 
a  petition  by  the  company  for  removal  to  a 
federal  court,  it  claimed  ownership  to  the 
land  under  an  act  of  the  legislature,  which 
it  claimed  as  a  contract,  and  which  had 
been  subsequently  repealed,  in  violation  of 
the  constitution  of  the  United  State*;. 
Held,  that  this  showed  a  federal  question, 
within  the  meaning  of  the  Act  of  Congress 
of  March  3,  1887,  though  the  state  filed  a 
disclaimer  that  no  reliance  was  placed  on 
the  repealing  act.  Hlinois  ex  rel.  v.  Illinois 
C.  R.  Co.,  33  Fed.  Rep.  721. 

A  state  filed  a  bill  in  its  own  court  seek- 
ing to  forfeit  the  charter  of  a  railroad,  on 
the  ground  that  it  was  chartered  by  the 
state  to  facilitate  communication  between 
the  interior  and  the  seaboard,  but  that  a  ri- 
val company,  chartered  in  an  adjoining  state, 
had  secured  control  of  a  majority  of  the 
stock  and  the  management  of  the  road, 
wiiich  it  was  using  to  divert  business  from 
the  road  and  to  crush  competition.  It  was 
also  charged  that  such  rival  company  had 
no  power  under  its  charier  to  hold  such 
stock ;  but  a  petition  for  a  removal  alleged 


that  such  company  was  an  instrument  of 
interstate  commerce,  and,  under  the  consti- 
tution and  laws  of  the  United  States,  it  had 
the  power  to  hold  such  stock  and  to  control 
the  road.  Held,  sufficient  for  the  purposes 
of  removal  to  show  that  a  federal  question 
was  involved.  South  Carolina  v.  Port  Royal 
&•  A.  R.  Co.,  56  Fed.  Rep.  333. 

The  complaint  in  such  case  prayed  that 
the  holding  of  stock  in  defendant  company 
by  such  rival  company  be  declared  ultra 
vires,  and  that  defendant's  charter  be  de- 
clared forfeited.  Held,  that,  as  this  would 
have  the  effect  of  rendering  the  stock 
worthless,  it  did  not  matter,  for  the  pur- 
poses of  a  removal,  that  the  rival  company 
was  not  made  a  defendant.  South  Carolina 
V.  Port  Royal  &*  A.  R.  Co. ,  56  Fed.  Rep.  333. 

It  was  also  charged  that  the  state  consti- 
tution, where  the  rival  company  was  char- 
tered, forbade  the  holding  of  such  stock, 
where  it  would  have  the  effect  of  destroying 
competition.  The  petition  for  removal 
alleged  that  such  constitution  impaired  the 
obligation  of  the  rival  company's  charter 
contract,  which  was  older  than  the  consti- 
tutional provision.  Held,  that  this  pre- 
sented a  federal  question,  though  the 
supreme  court  of  the  state  had  already  de- 
cided that  the  charter  did  not  confer  the 
rights  claimed.  South  Carolina  v.  Port 
Royal  &'  A.  R.  Co.,  56  Fed.  Rep.  333. 

25.  When  no  federal  question  Is 
involved. — A  ferry  company  sued  a  rail- 
road company  in  a  state  court  of  Missouri  on 
a  contract  made  in  Illinois  by  which  the 
railroad  company  agreed  to  employ  the 
^erry  exclusively  in  conveying  freights  and 
passengers  across  a  river.  The  railroad  set 
up  as  a  defense  that  the  contract  was  ultra 
vires,  and  in  violation  of  the  laws  of  Illinois. 
To  avoid  the  effect  of  this  the  ferry  com- 
pany set  up  by  way  of  estoppel  a  former 
judgment  in  a  Missouri  court  holding  that 
the  company,  under  the  laws  of  Illinois,  had 
the  power  to  make  the  contract.  Held, 
that  the  pleadings  did  not  make  a  case  that 
was  removable  to  a  federal  court  on  the 
ground  that  the  Missouri  court  had  not  in 
such  judgment  given  full  faith  and  credit  to 
the  public  acts  of  Illinois.  Chicago  &•  A, 
R.  Co.  V.  Wiggins  Ferry  Co.,  9  Am.  &*  Eng. 
R.  Cas.  509,  108  U.  S.  18. 

A  company  built  a  bridge  across  a  naviga- 
ble river  under  authority  from  congress, 
which  declared  it  to  be  a  lawful  structure, 
and  afterwards  the  company  obtained  the 


REMOVAL  OF  CAUSES,  26,  27. 


80 


itrument  of 
the  consti- 
tatcs,  it  had 
d  to  control 
he  purposes 
al  question 
Port  Royal 

prayed  that 
It  company 
:lared  ultra 
irter  be  de- 
this  would 
the  stock 
3r  the  pur- 
al  company 
rM  Carolina 
ui.  Rep.  333. 
tate  consti- 
!  was  char- 
such  stock, 
r  destroying 
3r  removal 
n paired  the 
ly's  charter 
the  consti- 
t  this  pre- 
hougii  the 
already  de- 
confer  the 
na  V.  Port 

333- 
lestion  Is 

sued  a  rail- 
Missouri  on 

which  the 
employ  the 
reights  and 
railroad  set 
t  was  ultra 
3  of  Illinois. 

ferry  com- 
;1  a  former 
olding  that 
Illinois,  had 
act.     Held, 

a  case  that 
urt  on   the 

had  not  in 
nd  credit  to 
'cago  &*  A. 
tn.  &*  Eng. 


right  to  lay  tracks  on  certain  streets  leading 
to  tiie  bridge.  Held,  that  a  proceeding  to 
prevent  it  from  using  the  tracks  did  not 
raise  a  federal  question,  as  the  act  of  con- 
gress did  not  attempt  to  confer  the  right  to 
use  the  streets.  Kentucky  v.  Louisville 
Bridge  Co.,  42  Fed.  Rep.  241.— FOLLOWING 
New  Orleans,  M.  &  T.  R.  Co.w.  Mississippi, 
102  U.  S.  135. 

No  fcderiil  question  is  raised  in  a  case  by 
an  answer  that  is  bad  in  substance  without 
reference  to  the  federal  question.  FitZ' 
gerald  v.  Missouri  Pac.  R.  Co.,  50  Am.  &* 
Eng.  R.  Cas.  622.  45  Fed.  Rep.  812. 

A  cause  is  not  removable  simply  because 
in  its  progress  it  may  become  necessary  to 
construe  or  apply  an  act  of  congress.  Un- 
less there  is  a  dispute  between  the  parties 
as  to  the  meaning  of  the  act,  there  is  no 
federal  controversy  between  them.  The 
decision  of  the  case  or  some  material  issue 
in  it,  must  depend  upon  a  construction  of 
the  act  claimed  by  one  party  and  denied  by 
the  other.  A  simple  averment  that  such 
is  the  fact  is  stating  a  conclusion,  and  is  not 
sufficient ;  the  facts  that  show  it  to  be  true 
must  be  set  out.  Fitzgerald  v.  Missouri 
Pac.  R.  Co.,  50  Am.  &*  Eng.  R.  Cas.  622, 
45  Fed.  Rep.  812. 

Both  the  parties  to  the  suit  being  citizens 
of  Louisiana,  it  cannot  be  removed  unless 
there  is  some  federal  question  involved. 
Conceding  that  the  defendant's  charter  is 
a  protected  contract  in  the  sense  of  the 
United  States  constitution,  and  that  the 
ordinance  sought  to  be  enforced  is  such  a 
law  as  may  impair  its  obligation,  yet  the 
facts  do  not  sustain  such  contention.  State 
ex  rel.  v.  New  Orleans  &•  N.  E.  R.  Co.,  43 
Am.  6>»  Efig.  R.  Cas.  263,  42  La.  Ann.  11,  7 
So.  Rep.  84. 

2G.  Diverse  citizenship,  general- 
ly**— A  township  in  Illinois  and  a  tax- 
payer thereof,  on  behalf  of  himself  and 
other  resident  taxpayers,  filed  their  bill  in  a 
state  court  against  certain  state,  county, 
and  township  officers  and  the  "unknown 
owners  and  holders  "  of  certain  township 
bonds,  for  an  injunction  to  restrain  the  levy 
and  collection  of  ataxtopay  the  principal  of 
the  bonds  or  any  interest  thereon.  A  citi- 
zen of  another  state  was  the  owner  of  all  of 


*  On  ground  of  diverse  citizenship,  see  note, 
12  Am.  &  Eng.  R.  Cas.  299. 

Personality,  residence,  and  citizenship,  see 
note,  35  Am.  &  Eng.  R.  Cas.  507. 


them.  Held,  that  he  was  entitled,  under 
the  act  of  March  3,  1875,  to  remove  the 
suit  to  the  circuit  court  of  the  United 
States.  Harter  v.  Kernochan,  3  Am.  &* 
Eng,  R.  Cas.  82,  103  U.  S.  562.— Distin- 
guishing Schafler  v.  Bonham,  95  III.  378. 

In  order  to  be  a  non-resident  of  a  state, 
so  as  to  be  entitled  to  removal  of  a  cause 
under  the  Act  of  Congress  of  March  3,  1887, 
providing  for  removal  of  causes  between 
citizens  of  different  states,  the  defendant 
must  be  a  citizen  of  another  state,  or  a  cor- 
poration  created  by  the  laws  of  another 
slate.  Martin  v.  Baltimore  &*  O.  R.  Co., 
151  U.  S.  673,  14  Sup.  Ct.  Rep.  533. 

The  test  of  the  residence  of  a  corporation 
is  the  place  of  its  creation,  and  not  its  prin- 
cipal place  of  business,  as  it  may  reside  in 
one  state  and  have  its  principal  place  of  busi- 
ness in  another.  Guinn  v.  Iowa  C.  R.  Co., 
4  McCrary  {(/.  S.)  566,  14  Fed.  Rep.  323.— 
Following  McCabev.  Illinois  C.  R.  Co.,4 
McCrary  492. 

Where  both  parties  are  citizens  of  the 
same  state  at  the  time  a  petition  for  re- 
moval is  filed,  there  is  no  right  then  in  ex- 
istence under  the  constitution  of  the  United 
States  upon  which  jurisdiction  in  the  federal 
court  can  be  based,  and  the  petition  must 
be  denied,  though  there  was  diverse  citizen- 
ship when  the  action  was  brought.  Laird 
v.  Connecticut  &*  P.  R.  R.  Co.,  55  A'.  H.  375. 
—Distinguishing  Kanouse  v,  Martin,  15 
How.  (U.  S.)  198. 

27.  There  niiiNt  be  no  common 
citizenship  among  opposing  parties. 
— Under  the  "  Removal  Act "  of  March  3, 
1875,  when  the  controversy  in  the  state 
court  is  between  citizens  of  one  or  more 
states  on  one  side,  and  citizens  of  other 
states  on  the  other  side,  either  party  may 
remove  the  case  to  the  U.  S.  circuit  court 
without  regard  to  the  position  they  occupy 
in  the  pleadings  as  plaintiffs  or  defendants. 
Meyer  v.  Delaware  R.  Constr.  Co.,  100  C/.  S. 
457,  21  Am.  Ry.  Rep.  465.— Quoted  in 
Texas  &  P.  R.  Co.  v.  McAllister,  59  Tex. 
349. —  Young  V.  Parker,  132  U.  S.  267,  10 
Sup.  Ct.  Rep,  75.— Followed  in  Marsh  t/. 
Atlanta  &  F.  R.  Co..  53  Fed.  Rep.  168; 
Gann  v.  Northeastern  R.  Co.,  57  Fed.  Rej). 
417. — Hervey  v.  Illinois  Midland  R.  Co.,  7 
Biss,  (U.  S.)  103.  Gudger  v.  Western  N. 
C.  R.  Co.,  19  Am.  &-  Eng.  R.  Cas.  144,  87 
N.  Car.  325.  O' Kelly  v.  Richmond  &»  D.  R. 
Co.,  89  N.  Car.  58. 

Certain  taxpayers  filed  a  bill  to  enjoin  a 


^ 


80 


REMOVAL   OF   CAUSES,  tiK  20. 


tax  that  had  been  votcfl  in  aid  of  a  railroad. 
Plaintiffs  and  ail  the  (lefeiidiints.  wliich  in- 
cluded the  county  officers  and  the  railroad 
company,  were  citizens  of  tlie  same  state, 
except  one  defendant,  who  was  assignee  of 
the  railroad.  These  were  all  necessary  de- 
fendants, and  there  was  no  separable  con- 
troversy. Held,  that  the  case  was  not  re- 
movable to  the  federal  court  under  the  act 
of  1875.  Sully  V.  Drennan,  w^  U.  S.  287,  5 
Sup.  Ct.  Rep.  453.— DisTiNiiuisiiiNO  Harter 
V.  Kernochan,  103  U.  S.  562. 

One  of  the  two  plaintiffs  in  a  suit  originally 
commenced  in  a  state  court,  and  removed 
by  the  defendant  into  the  United  States 
circuit  court,  under  the  act  of  September  24, 
1789,  §  12  (I  U.  S.  St.  at  L.  79),  was  a 
citizen  of  New  Hanipshire,  and  the  other 
was  a  citizen  of  Vermont,  and  defendant,  a 
railroad  company,  was  a  citizen  of  New 
York.  Held,  that  the  United  States  circuit 
court  had  no  jurisdiction,  and  the  case  could 
not  be  removed  into  that  court.  Hubbard 
V.  Northern  R.  Co.,  3  Blatchf.  ( U,  S.)  84. 

Under  United  States  Rev.  St.  §  639,  a 
suit  in  which  there  are  two  or  more  defend- 
ants cannot  be  removed,  on  the  petition  of 
a  defendant  who  is  a  citizen  of  another 
state,  unless  it  can  be  finally  determined  as 
to  him,  without  the  presence  of  the  other 
defendants  ;  and  it  is  not  removable  on  the 
ground  of  prejudice  or  local  influence,  un- 
less the  controversy  is  wholly  between 
citizens  of  different  states.  Burch  v.  Daven- 
port &•  St.  P.  R,  Co.,  46  Iowa  449.— Fol- 
lowing Delaware  R.  Constr.  Co.  v. 
Davenport  &  St.  P.  R.  Co.,  46  Iowa  406.— 
Followed  in  Stanbrough  v.  Griffin,  52 
Iowa  112. 

A  corporation  was  formed  by  uniting 
three  Missouri  with  three  Kansas  corpora- 
tions, and  was  sued  in  Kansas  by  a  citizen 
of  Missouri.  Held,  that  such  corporation 
was  presumed  to  be  composed  of  citizens  of 
both  states,  and  could  not  remove  the  cause 
to  a  federal  court.  Pacific  R.  Co.  v.  J/zi- 
souri Pac.  R.  Co.,  5  McCrary  {U.  S.)  yj-},.— 
Following  Ohio  &  M.  R.  Co.  v.  VVheck-r, 
I  Black  297.  Quoting  Baltimore  &  O.  R. 
Co.  V.  Harris,  12  Wall.  65.  Reviewing 
Chicago  &  N.  W.  R.  Co.  z/.  Whitton,  13 
Wall.  270. 

Suit  was  commenced  in  a  state  court 
against  several  railroad  companies  and 
others  to  enforce  the  lien  of  certain  bonds, 
and  by  plaintiff's  consent  many  other  hold- 
ers of  the  bonds  of  the  same  series  were 


permitted  to  become  parties  and  set  up  their 
liens.  Held,  that  all  of  the  parties  asserting 
the  lien  under  the  series  of  bonds  shot  .1  be 
considered  as  plaintiffs,  in  determining  the 
citizenship  of  the  parties,  on  a  motion  to  re- 
move the  case  to  a  federal  court.  Adelbert 
College  V.  Toledo,  W.  &>  IV.  R.  Co.,  47  Fed. 
Rep.  836. 

And  when  thus  arranged,  if  it  appears 
that  part  of  the  plaintiffs  arc  aliens,  and 
others  reside  in  the  same  state  with  the 
defendants  that  petition  for  the  removal,  a 
federal  court  has  no  jurisdiction.  Adelbert 
College  V.  Toledo,  JV.  &*  IV.  R.  Co.,  47  Fed. 
Rep.  836. 

28.  Citizenship  of  parties  to  rec- 
ord, only,  considered.  —  A  citizen  of 
New  York  and  citizens  of  Maryland  brought 
suit,  in  a  state  court  of  New  York,  against  a 
railroad  corporation  created  by  North  Caro- 
lina, South  Carolina,  and  Georgia,  and  its 
directors,  one  of  whom  was  a  citizen  of 
Maryland,  and  the  rest  citizens  of  New 
York,  and  a  Virginia  corporation,  to  enjoin 
defendants  from  executing  a  lease  to  the 
Virginia  corporation  of  the  road  of  the 
other  corporation.  The  suit  was  removed 
to  this  court  on  petition  of  the  latter  cor- 
poration, setting  forth  that  there  was  a  con- 
troversy between  plaintiffs  and  the  two  cor- 
porations, which  could  be  fully  detcniined 
as  between  them,  and  that  the  Virginia  cor- 
poration had  not  been  served  with  process. 
Plaintiffs  moved  to  remand  the  cause  to 
the  state  court.  Held:  (i)  that  the  indi- 
vidual defendants  were  parties  only  as  agents 
and  officers  of  the  corporation,  and  only 
nominal  parties,  and  that  the  sole  contro- 
versy, as  respected  that  corporation,  was 
between  plaintiffs  and  it;  (2)  that  the  Vir- 
ginia corporation  was  a  necessary  party  to 
that  controversy,  and  it  could  not  be  served 
with  process  from  this  court,  and,  as  it  had 
not  been  served  in  the  state  court  and  had 
not  appeared  the  suit  was  not,  when  it  was 
removed,  pending  or  brought  against  it, 
within  the  act  of  March  3,  1875,  §  2  (18  U. 
.S.  St.  at  L.  470),  and  so  could  not  be  re- 
moved. Poitdw  Sibky,  19  lilatchf.  {U.  S.) 
189.— Distinguishing  Fisk  v.  Union  Pac. 
R.  Co.,  8  Blatchf.  243. 

20.  Necessary  and  nominal  par- 
ties.— Where  the  cause  of  action  is  vested 
in  the  trustees  of  a  railroad  mortgage,  the 
citizenship  of  such  trustees  may  be  looked 
to  in  determining  the  question  of  whether  a 
federal  court  can  acquire  jurisdiction  by  re- 


I 


REMOVAL  OF  CAUSES,  30-»a. 


81 


tnoval  from  a  state  court,  and  not  to  the 
residence  of  the  beneficiaries  in  the  mort- 
gage. Knapp  V.  Troy  &*  B.  li,  Co.,  20  Wall. 
(U.  5.)  117.  10  Am.  Ry.  Rep.  95.-  Fol- 
lowed IN  Davies  v.  Lathrop,  12  Fed.  Rep. 
353,  20  Blatchf.  (U.  S.)  397. 

The  Removal  Act  of  1867  wliich  extends 
the  act  of  1789  so  as  to  allow  either  plain- 
tiff or  defendant  to  remove  a  cause,  does  not 
change  tiie  settled  rule  as  to  who  arc  to  be 
regarded  as  plaintiff  and  defendant.  Knapp 
V.  Troy  &*  B.  R.  Co.,  20  Wall.  (U.  S.)  117, 
10  Am.  Ry.  Rep.  95. 

A  defendant,  which  is  not  a  real  or  actual 
or  necessary  party,  but  is  merely  a  formal 
party,  to  the  controversy,  as  it  stands  when 
the  petition  for  removal  is  filed,  is  to  be 
considered  as  not  a  party.  Chicago,  St. 
L.  &■*  N.  O.  R.  Co.  V.  McComb,  17  Blatchf. 
{U.  S.)  371.  Hervey  v.  Illinois  Midland  R. 
Co.,  7  Bis$.  (U.  S.)  103.  Adelbert  College  v. 
Toledo,  W.  &*  W.  R.  Co.,  47  ^'ed.  Rep.  836. 
Rivers  v.  Bradley,  53  Fed.  Rep,  305.  United 
States  ex  rel.  v.  Douglas,  113  N.  Car.  190, 
18  S.  E.  Rep.  202.  —Reviewing  Maryland 
V.  Baldwin,  11 2  U.  S.  490. 

A  Missouri  statute  gives  contractors  and 
material-men  a  lien  on  a  railroad  fur  ma- 
terials furnished  or  work  done,  but  leaves  it 
optional  with  a  subcontractor  in  enforcing  a 
lien  whether  he  will  make  the  contractor  a 
party,  and  provides  for  a  personal  judgment 
against  him  if  he  is  made  a  party.  Held, 
that  the  joining  of  the  contractor  as  a  de- 
fendant does  not  make  two  separate  causes 
of  action  so  as  to  make  the  controversy 
separable  as  between  the  plaintiff  and  com- 
pany, within  the  meaning  of  the  Act  of  Con- 
gress of  1887,  §  2.  Ames  v.  Chicago,  S.  F. 
&*  C.  R.  Co.,  39  Fed.  Rep.  881. 

30.  Interveners.  —  Citizens  of  a  state 
filed  a  petition  in  a  state  court  to  assert 
laborers'  liens  against  a  railroad  company 
of  the  state ;  and  certain  other  lien-holders, 
citizens  of  other  states,  intervened  and  set 
up  liens  against  the  property,  which,  it  was 
claimed,  were  superior.  Held,iha.i  the  con- 
troversy was  wholly  between  citizens  of  dif- 
ferent states,  and  was,  therefore,  removable 
to  a  federal  court.  Snow  v.  Texas  Trunk 
R.  Co.,  4  Woods  {U.  S.)  394,  16  Fed.  Rep.  1. 

31.  Assignees.* — An  action  against  a 
railroad  company  based  upon  an  assigned 


*  Right  of  removal ;  when  vested  in  assignee 
of  chose  in  action,  see  note,  13  Am.  &  Eng.  R. 
Cas.  iSo. 


claim  for  overcharges  in  freight  may  be  re- 
moved from  the  state  to  the  federal  courts, 
where  the  parties  are  citizens  of  different 
states,  regardless  of  the  citizenship  of  the 
assignor  of  such  claim.  Such  a  claim  is  not 
a  "chuse  in  action  "  within  the  meaning  of 
the  proviso  in  the  amendatory  act  of  1888. 
Conn  V.  Chicago,  B.  &•  Q.  R.  Co.,  50  Atn.  &* 
Eng.  R.  Cas.  640,  48  Fed.  Rep.  177. 

A  non-resident  who  has  a  claim  against 
a  company  for  a  personal  injury  may  assign 
it  to  a  citizen  of  the  same  state  as  the  com- 
pany, so  as  to  defeat  the  removal  of  a  suit 
thereon,  if  the  assignment  is  law,  though 
done  to  defeat  the  removal.  Vimont  v. 
Chicago  &•  N.  W.  R.  Co.,  13  Am.  &*  Eng.  R, 
Cas.  176,  19  Am.&*  Eng.  R.  Cas.  215,  64 
Iowa  513,  21  iV,  W.  Rep.  9.— Followed 
IN  Vimont  v.  Chicago  &  N.  W.  R.  Co.,  69 
Iowa  296 

Where  an  employ^  commences  suit  against 
his  company  for  a  personal  injury,  and  in  the 
course  of  the  proceeding,  non-residents  (as- 
signees of  the  road)  voluntarily  become 
parties  defendant,  and  ask  for  a  removal  of 
the  case  to  the  federal  court,  their  motion  is 
properly  refused.  Gutter  v.  Western  N.  C. 
R.  Co.,  19  Am.  &*  Eng.  R.  Cas.  144,  87  JV. 
Car.  325. 

32.  Receivers.  —  A  suit  for  injuries 
causing  death  was  commenced  against  a  re- 
ceiver of  a  road  in  a  state  court  of  New 
York,  and  was  removed  to  a  federal  court 
for  the  reason  that  the  receiver  was  a  citi- 
zen of  New  Jersey.  The  suit  was  originally 
brought  under  the  New  York  statute,  which 
limited  the  recovery  to  $5000 ;  but  was 
amended  by  inserting  a  claim  under  the 
New  Jersey  statute,  which  did  not  limit  the 
amount  of  the  recovery,  //eld,  that  the 
federal  court  had  jurisdiction  under  the  Re- 
moval Act  of  1875,  §  5,  though  the  receiver 
had  been  appointed  by  an  ancillary  proceed- 
ing in  New  York.  Davies  v.  Lathrop,  12 
Fed.  Rep.  353,  20  Blatchf.  (U.  S.)  397. 

A  receiver's  personal  citizenship  will  be 
regarded  on  a  motion  to  remand  a  cause  to 
the  state  court;  and  not  the  place  of  his 
appointment.  Davies  v.  Lathrop,  12  Fed. 
Kep.  353,  20  Blatchf.  ([/.  S.)  397.— Follow- 
ing Rice  V.  Houston,  13  Wall.  (U.  S.)  66; 
Knapp  V.  Troy  &  B.  R.  Co.,  20  Wall.  117, — 
Brisenden  v.  Chamberlain,  53  Fed.  Rep.  307. 
Texas  <S^  P.  R.  Co.  v.  Bloom,  85  Tex.  279,  20 
S.  W.  Rep.  133. 

The  property  of  a  construction  company 
went  into  tlic  hands  of  a  receiver,  but,  un- 


^ 


REMOVAL  OF  CAUSES,  3»,  34. 


der  orders  of  court,  he  continued  the  work 
of  construction,  and  for  that  purpose  made 
contracts.  Held,  that  a  controversy  arising 
between  the  receiver  and  a  contractor,  or 
l)ciween  the  contractor  and  otlier  claimants, 
should  be  settled  in  the  state  court  where 
the  receiver  was  appointed  ;  and  a  contract- 
or is  not  entitled  to  have  tiic  matter  re- 
moved to  a  federal  court  on  the  ground  of 
diverse  citizenship.  Jiitell  \.  Cincinnati,  E. 
&•  Q.  Consir,  Co.,  lo Biss.{U.  S.)  555,  ^FeJ, 

Rep.  351. 

No  "  federal  question  "  can  arise  upon  the 
construction  of  a  bond  given  by  a  receiver 
of  a  railroad  appointed  by  the  United  States 
court  as  to  whether  the  liability  of  the  sure- 
ties be  joint  or  several,  it  being  simply  a 
question  of  law  to  be  determined  by  the 
settled  rules  of  construction.  Neither  is  a 
question  arising  upon  the  construction  of 
decrees  and  orders  of  the  United  States  cir- 
cuit court  relating  to  said  bond  and  as- 
certaining the  receiver's  liability  such  a 
"  federal  question,"  where  there  is  nothing 
to  show  that  any  question  of  construction  of 
such  decrees.etc,  will  arise,  other  than  their 
interpretation  according  to  their  plain 
meaning.  United  States  ex  rel.  v.  Douglas, 
113  A'.  Car.  190,  18  S.  E.  Rep.  202. 

Act  of  Congress  of  August  13,  1888,  §  3 
(25  U.  S.  St.  at  L.,  p.  436),  relating  to  suits 
against  receivers,  has  no  reference  to  an 
i  ction  af^amst  the  sureties  on  the  bond  of  a 
receivci  of  a  railroad,  but  merely  asserts 
the  general  equity  of  jurisdiction  of  the 
appointing  court  over  the  receiver  so  ap- 
pointed. United  States  ex  rel.  v.  Douglas, 
113  A^.  Car.  190,  18  5.  E.  Rep.  202. 

33.  Corporations,  geiicrHlly.— Un- 
der the  Act  of  Congress  of  March  3, 1875,  a 
defendant  who  is  a  citizen  of  the  state  where 
suit  is  brought  may  have  it  removed  to  a 
federal  court,  and  certain  defendants  may 
have  a  removal,  though  their  co-defendants 
do  not  join  in  the  petition,  if  the  contro- 
versy as  between  them  and  the  plaintiff  can 
be  fully  determined  without  the  other  de- 
fendants. So  held,  where  a  bondholder  of 
a  company  filed  a  bill,  and  the  company  and 
its  officers  and  trustees  petition  for  a  re- 
moval. Osgood  v.  Chicago,  D.  &•  V.  K.  Co., 
6  Biss.  {U.  S.)  330. 

Corporations  have  citizenship  for  the  pur- 
poses of  suing  and  being  sued,  and  are  em- 
braced in  the  United  States  legislation  with 
reference  to  the  removal  of  causes  to  its 
courts  from  state  courts.   Stanley  v.  Chicago, 


R.  I.  &*  P.  R.  Co.,  6a  Mo.  $08.— Followed 
IN  Beery  v.  Chicago,  R.  I.  &  P.  R.  Co.,  64 
Mo.  533. 

Though  a  corporation  is  ordinarily  re- 
garded as  a  citizen  of  the  state  where  it  is 
created,  yet  it  may  be  a  citizen  of  another 
state,  within  the  meaning  of  the  Act  of 
Congress  of  March  2,  1867,  relating  to  the 
removal  of  causes  from  state  to  federal 
courts.  Quigley  v.  Centra  Pac.  R.  Co.,  1 1 
Nev.  350. 

A  corporation  is  not,  fier  se,  a  citizen 
within  the  meaning  of  the  third  article  of 
the  constitution  of  the  United  States.  So, 
wiien  a  corporation  sues  or  is  sued,  the  gov- 
erning officers,  by  whatever  name  called,  are 
the  substantial  party ;  and  if  they  are  citi- 
zens of  the  state  which  created  the  corpora- 
tion, and  the  other  party  is  a  citizen  of 
another  state,  the  federal  courts  have  juris- 
diction, and  the  cause  is  removable  under 
the  Judiciary  Act  of  1789.  Wheeden  v. 
Camden  &>  A.  R.  Co.,  i  Grant's  Cas.  {Pa.) 
420. 

34.  CorporattonH  chartered  iu 
two  or  more  Btates.— Where  a  railroad 
company  is  duly  organized  under  the  laws 
of  two  states,  and  is  sued  in  the  state  court 
of  one  of  the  states  by  a  citizen  of  that  state, 
it  cannot  remove  the  action  to  a  federal 
court  on  the  ground  of  citizenship.  Col- 
glasiir  v.  Louisville,  N.  A.  &>  C.  R.  Co.,  20 
A;'i.&*  Eng.  R.  Cas.  611,  22  Fed.  Rep.  568. 
—Following  Chicago  &  W.  I.  R.  Co. 
V.  Lake  Shore  &  M.  S.  R.  Co.,  10  Biss. 
(U.  S.)  122,  5  Fed.  Rep.  19;  Copeland 
V.  Memphis  &  C.  R.  Co..  3  Woods  (U. 
S.)  651  ;  Uphoff  V.  Chicago,  St.  L.  &  N. 
O.  R.  Co.,  5  Fed.  Rep.  545 ;  Nashua  &  L.  R. 
Corp.  V.  Boston  &  L.  R.  Corp.,  8  Fed.  Rep. 
458;  Johnson  v.  Philadelphia.  W.  &  B.  R. 
Co.,  9  Fed.  Rep.  6 ;  Home  v.  Boston  &  M. 
R.  Co.,  18  Fed.  Rep.  50;  St,  Louis,  A.  & 
T.  H.  R.  Co.  V.  Indianapolis  &  St.  L.  R. 
Co.,  9  Biss.  (U.  S.)  144  ;  Muller  v.  Dows.94 
U.  S.  444.— Distinguished  in  Chicago, 
L  &  N.  P.  R.  Co.  V.  Minnesota  &  N.  W. 
R.  Co.,  29  Fed.  Rep.  ly].— Memphis  &* 
C.  R.  Co.  v.  Alabama,  13  Am.  &*  Eng. 
R.  Cas.  172,  107  U.  S.  581,  2  Sup.  a. 
Rep.  432.  Stephens  v.  St.  Louis  <S-  S.  F. 
R.  Co.,  so  Am.  &*  Eng  R.  Cas.  618.  47  Fed. 
Rep.  530.  Home  v.  Boston  &-  M.  R.  Co.,  62 
A^.  H.  454.  Baltimore  &'  O.  R.  Co.  v.  Pitts- 
burg, W.  &*  K.  R.  Co.,  10  Am.  &*  Eng.  R. 
Cas.  444,  17  W.  Fdi.  812.— Quoted  IN  Colo- 
rado Midland  R.  Co.  v.  Jones,  29  Fed.  Rep* 


REMOVAL  OF   CAUSES,  35. 


88 


l^y—Hfntn  V.  Baltimort  &*  O,  R.  Co.,  9 
Am.  ^'Eng.  A\  Cas.  496,  17  IV.  Va.  881. 
Quarn'erv.  Ballimore  &*  O.  K.  Co.,  18  Am. 
&'Eng.  K.  Cas.  535,  30  IV.  Va.  424. 

A  railroad  company  formed  by  the  con- 
solidation of  corporations  of  two  states  re- 
mams,  for  the  purposes  of  jurisdiction,  a 
citizen  of  both  states,  and  when  sued  in  a 
state  court  of  one  of  the  states  by  a  citizen 
of  the  other  stale,  it  is  not  entitled  to  a  re- 
moval to  a  federal  court.  Pacific  R.  Co.  v. 
Miisotiri  Pac.  R,  Co.,  20  Am.  &*  Eng.  R. 
Cas.  590,  23  Ecil.  Rep.  565.  Johnson  v.  Phila- 
dtiphia,  IV.  &•  B.  R.  Co.,  9  Fed.  Rep.  6. 
— Followed  in  ColglaziertA  Louisville,  N. 
A.  &  C.  R.  Co.,  20  Am.  &  Enjr.  \\.  Cas. 
611,  22  Fed.  Rep.  568.  — d//A<i^  V.  C///i:<i^'o, 
St.L.SfN.  O.  h\  Co.,  5  Fed.  Rep.  545.- 
FoLLOWED  IN  Colglazier  ?'.  Louisville,  N. 
A.  &  C.  R.  Co.,  20  Am.  &  Eng.  R.Cas.  611, 
22  Fed.  Rep.  568. 

U5.  Forcit;ii  corporatioiiH,  t^ciior- 
ally.*— A  railroad  corporation  created  by 
the  laws  of  one  state  may  carry  on  business 
in  another,  either  by  virtue  of  being  created 
a  corporation  by  the  laws  of  the  latter  state 
also,  or  by  virtue  of  a  license,  permission,  or 
authority,  granted  by  the  laws  of  the  latter 
state,  so  as  to  act  in  that  state  under  its 
charter  from  tiie  former  state.  In  the  first 
alternative,  it  cannot  remove  a  suit  to 
the  federal  court  on  account  of  citizenship 
of  a  different  state,  but  it  may  in  the 
latter  alternative.  Martin  v.  Baltimore  &* 
O.  R.  Co.,  151  U.  S.  673,  14  Slip.  a.  Rep. 

533- 

The  Baltimore  &  Ohio  railroad  company 
is  not  a  corporation  of  West  Virginia,  but 
only  a  corporation  of  Maryland,  licensed 
by  West  Virginia  to  act  as  such  within  its 
territory,  and  liable  to  be  sued  in  its  courts, 
and  has  the  right,  under  the  constitution 
and  laws  of  the  United  States,  when  sued 
by  a  citizen  of  the  state  to  remove  the  suit 
into  the  circuit  court  of  the  United  States, 
and  cannot  be  deprived  of  its  right  by  any 
provision  in  the  statutes  of  the  state. 
Martin  v.  Baltimore  &*  O.  R.  Co.,  151  U.  S. 
673,  14  Sup.  Ct.  Rep.  533.t  — Approving 
Baltimore  &  O.  R.  Co.  v.  Harris,  12  Wall. 
(U.  S.)  65,  Mississippi  &  R.  R.  Boom  Co. 


*  Citizenship  of  railroad  company.     Foreign 
corporations,  see  note,  20  Am.  &  Eng,  R.  Cas. 

622. 

t  See  also  ante,  34 ;  Baltimore  &   O.    R. 
Co.,  8. 

7  D.  R.  D  -3 


V.  Patterson,  98  U.  S.  403;  Union  Pac.  R. 
Co.  V.  Kansas  City,  115  U.  S.  1,  Searl  v. 
School  Dist.  No.  3,  124  U.  S.  197.— Dis- 
approving Baltimore  &  O.  R.  Co.  v.  Pitts- 
burg, W.  &  K  R.  Co.,  17  W.  Va.  813. 
DlsTiN(;uisillNG  Baltimore  &  O.  R.  Co.  v. 
Gallahue,  12  Gratt.  (Va.)  655,  Goshorn  v. 
Ohio  County  Sup  is,  1  W.  Va.  308,  Balti- 
more &  O.  R.  Co.  V.  Marshall  County 
Sup'rs,  3  W.  Va.  319. 

Virginia  Act  of  1827  merely  conferred  on 
the  above  company,  a  Maryland  corporation, 
a  license  to  transact  business  in  that  state, 
and  did  not  make  it  a  Virginia  corporation  ; 
therefore,  it  is  entitled  to  remove  a  cause 
from  a  state  court  of  what  is  now  West 
Virginia  to  a  federal  court  on  account  of 
citizenship.  Baltimore &^0.  R.  Co.  v.  Ford, 
35  Fed.  Rep.  170. 

A  state  cannot  by  a  mere  legislative  dec- 
laration make  all  corporations  created  by 
charter  or  by  the  laws  of  other  states 
domestic  corporations  of  such  state ;  at 
least  it  cannot  by  such  declarations  de- 
prive the  foreign  corporation  of  its  right 
to  resort  to  the  federal  courts,  in  cases 
where  such  right  is  conferred  by  the  con- 
f'tution  and  laws  of  the  United  States. 
,<iece  v.  Neivport  Neivs  &*  M.  V.  Co.,  32  W. 
Va.  164,  9  .v.  E.  '^ep.  212. 

So  much  of  W.  Va.  Code,  ch.  54,  §  30,  as 
declares  that  foreign  railroad  corporations 
doing  business  in  this  state  shall  in  all  suits 
and  legal  proceedings  be  held  and  treated  as 
domestic  corporations,  and  requires  every 
such  corporation  to  file  an  agreement  to 
that  eflfect,  is,  so  far  as  it  attempts  to  de- 
prive such  corporations  of  the  right  to  re- 
move to  the  federal  courts  suits  brought 
against  them  in  the  courts  of  this  state,  in- 
operative and  void  ;  and  such  foreign  cor- 
poration may  exercise  such  right  in  any 
proper  case,  notwithstanding  it  has  executed 
and  filed  such  agreement.  Rece  v.  Newport 
News  6-  M.  V.  Co.,  32  W.  Va.  164,  9  S.  E. 
Rep.  312. 

A  domestic  railroad  company  filed  a  bill 
against  a  foreign  company  to  restrain  it 
from  interfering  with  the  plaintiff's  roadbed, 
and  for  damages,  and  after  the  defendant 
had  filed  a  petition  for  removal  to  a  federal 
court,  it  consolidated  with  a  domestic  cor- 
poration. Held,  that  tiis  did  not  prevent  a 
removal.  Chicago,  I.  6f  V.  P.  R.  Co.  v. 
Minnesota  &-'  N.  W.  R.  Co.,  29  Fed.  Rep. 
337.— Distinguishing  Colglazier  t-.  Louis- 
ville, N.  A.  &  C.  R.  Co.,  22  Fed.  Rep.  568 ; 


\ 


84 


REMOVAL   OF   CAUSES,  36,37. 


Pacific  R.  Co.  v.  Missouri  Pac.  R.  Co.,  23 
Fed.  Rep.  565. 

And  the  fact  that  such  foreign  corporation 
has  filed  its  articles  of  association  with  the 
secretary  of  state,  as  required  by  a  state 
statute,  upon  entering  the  state,  does  not 
make  it  a  domestic  corporation,  nor  prevent 
it  from  ren'oving  the  suit.  Chicago,  I.  &*N. 
P.  R.  Co.  V.  Minnesota  6-  A^.  W.  ii.  Co.,  29 
Fed.  Rep.  337. 

For  the  purpose  of  removing  litigation 
from  a  state  tc  a  federal  court  a  defendant 
corporation  must  be  considered  as  dwelling 
in  the  state  of  its  creation,  notwithstanding 
that  it  may  do  business  in  other  states  ;  and 
the  action  must  be  regarded  as  prosecuted 
against  citizens  of  another  state.  Fisk  v. 
Chicago,  R.  I.  &•  P.  R.  Co.,  3  Abb.  Pr.  N.  S. 
{JV.  V.)  453,  53  Barb.  472.— Approving 
Ohio  &  M.  R.  Co.  V.  Wheeler,  i  Black  (U. 
S.)  286.  Quoting  Dennistoun  v.  New 
York  &  N.  H.  R.  Co..  i  Hilt.  (N.  Y.)  62. 

The  purpose  of  N.  Y.  Act  of  1853,  ch.  466, 
as  amended  in  1855,  ch.  279,  requiring,  for- 
eign corporations,  before  doing  business  in 
New  York,  to  appoint  an  agent  here  upon 
.,hom  service  of  process  against  the  cor- 
poration may  be  served,  is  to  afford  the  citi- 
zens of  the  state  means  of  suing  in  the  state ; 
and  is  not  intended  to  prevent  a  corporation 
when  so  sued  from  removing  the  litigation 
to  a  federal  court.  Fis'  v.  Chicago,  R.  I. 
Sr*  P.  R.  Co.,  3  Abb.  Pr.  N.  S.  {N.  V.)  453. 
53  Barb.  472. 

Where  a  corporation  of  another  state,  not 
being  a  citizen  of  Ohio,  is  sued  by  a  citizen 
of  the  state,  in  t.  s  ,tate  court,  it  is  entitled 
to  have  the  case  removed  to  a  United  States 
court,  under  the  Judiciary  Act  of  1789,  §  12. 
Baltimore  &•  O.  R.  Co.  v.  Carjf,  28  Ohio  St. 
208,  14  Am,  Ry.  Rep.  97.  —  Followed  in 
Erie  R.  Co.  v.  Stringer,  32  Ohio  St.  468.— 
Southern  Pac.  R.  Co.  v.  Harrison,  73  Tex. 
103,  II  S.  W.  Rep.  168. 

36.  Foreign  corporation  buying  or 
leasing  domestic  roud.  —  A  Maryland 
railroad  co.iipany  which  leases  and  operates 
the  properly  of  a  Virginia  railroad  company 
does  not  tliereby  become  a  citizen  of  Virginia, 
or  lose  its  right  to  a  removal  of  a  cause  when 
sued  in  a  Virginia  court.  Baltimore  &*  O.  R. 
Co.  v.  Koontz,  4  Am.  &•  Eng.  R.  Cas  105, 104 
U.  S.  5;  reversing  29  Gratt.  (Fa.)  431,  17 
Am.  Ry.  Rep.  351,  32  Gratt.  394.— Dis- 
TINGUISHED  IN  Morgan  v.  East  Tenn.  &  V. 
R.  Co.,  4  Woods  (U.  S.)  523.  Followed  in 
Morgasi  v.  East  Tenn.  &  V.  R.  Co.,  48  Fed. 


Rep.  705.  Quoted  in  Williams  v.  East 
Tenn.,  V.  &  G.  R.  Co.,  90  Ga.  519 ;  Booth  v. 
St.  Louis  Fire-Engine  Mfg.  Co.,  40  Fed, 
Rep.  I ;  Texas  &  P.  R.  Co,  v.  McAllister, 
59  Tex.  349 ;  Rece  v.  Newport  News  &  M. 
V.  Co.,  32  W.  Va.  164. 

The  same  rule  applies  to  an  Illinois  com- 
pany operating  a  leased  road  in  Iowa. 
Treadway  v.  Chicago  <S«*  A'.  W.  R.  Co.,  21 
Io7i'a  351. 

V/'iere  a  corporation  of  another  state  is 
air'.horized  to  purchase  a  road  incorporated 
in  the  state,  to  have  "  all  the  rights  and 
privileges  "  of  the  selling  company,  the  pur- 
chase of  the  road  for  the  purpose  of  an 
extension  does  not  make  the  foreign  cor- 
poration a  domestic  corporation,  so  as  to 
prevent  it  from  removing  a  cause  from  a 
state  to  a  federal  court.  Morgan  v.  East 
Tenn.  &*  V.  R.  Co.,  48  Fed.  Rep.  705.— Fol- 
lowing Callahan  v.  Louisville  &  N.  R.  Co., 
1 1  Fed.  Rep.  536 ;  Baltimore  &  O.  R.  Co. 
V.  Koontz,  104  U.  S.  5  ;  Baltimore  &  O.  R. 
Co.  V.  Cary,  28  Ohio  St.  208. 

When  a  foreign  railroad  corporation  pur- 
chases the  rights,  titles,  properties,  and  fran- 
chises of  a  domestic  railroad  corporation, 
which  is  by  its  charter  authorized  to  sell 
such  rights,  titles,  properties,  and  franchises, 
and  the  purchasing  company  assumes  all  the 
liabilities  of  the  purchased  road  and  be- 
comes merged  and  consolidated  with  it, 
doing  business  under  its  charter,  such  pur- 
chasing company  is  so  far  a  domestic  cor- 
poration that  it  has  no  right  on  the  ground 
that  it  is  a  citizen  of  another  state  to  re- 
move causes  from  the  state  courts  to  the 
United  States  courts.  Angier  v.  East  Tenn., 
V.  &>  G.  R.  Co., 20 Am.  &^Eng.  R.  Cas.6\8, 
74  Ga.  634.  —  Followed  in  Schaefer  v. 
East  Tenn.,  V.  &  G.  R.  Co.,  76  Ga.  99. 
Reviewed  in  Williams  v.  East  Tenn.,  V. 
&G.  R.  Co.,9oGa.  519. 

37.  Domestic  corporation  leasing 
to  foreign  corporation.— A  leased  rail- 
road in  Iowa,  under  the  Code  of  that  state, 
§  1300,  does  not  become  so  absorbed  in  the 
lessee  company  as  to  lose  its  identity. 
Hence,  in  a  suit  in  Iowa  by  citizens  of  that 
state  against  a  foreign  railroad  leasing  an 
Iowa  road  to  enforce  an  obligation  of  the 
latter,  both  roads  are  necessary  parties,  and 
the  suit  is  not  removable  to  the  federal 
courts  under  the  act  of  1875,  on  account  of 
diverse  citizenship.  Chicago  &*  N.  W.  R. 
Co.  V.  Crane,  20  Am.  &•  Eng.  R.  Cas.  600. 
113  I/.  S.  424,  5  Sup.  a.  Rep.  578.— Dis- 


REMOVAL   OF   CAUSES,  38,  39. 


85 


1;^::^ 


TINGUISHED  IN  Arrowsmith  v.  Nashville  & 
D.  R.  Co..  57  Fed.  Rep.  165. 

The  fact  that  a  corporation  of  Kentucky 
leases  and  operates  a  railroad  chartered  by 
Tennessee,  does  not  make  it  a  citizen  of 
Tennessee,  nor  prevent  it  from  removing  a 
suit  from  a  state  court  of  Tennessee  to  tlie 
federal  court.  Callahan  /.  Louisville  &-  N. 
K.  Co.,  II  Fed.  Rep.  536.— FOLLOWED  IN 
Morgan  v.  East  Tenn.  &  V.  R.  Co.,  48  Fed. 
Rep.  705. 

The  fact  that  a  railroad  company  is  un- 
der a  perpetual  lease  to  a  foreign  company 
is  not  sufficient  to  make  it  a  foreign  com- 
pany ;  therefore  where  both  the  lessor  and 
lessee  are  sued  in  a  state  court,  the  cause 
cannot  be  removed  to  a  federal  court,  where 
the  plaintiff  resides  in  the  same  state  with 
the  lessor  company,  unless  it  is  not  a  material 
party.  Crane  w.  Chicago  &*  N.  W.  R.  Co.,  17 
Am.  &•  Eftff.  R.  Cas.  174,  20  Fed.  Rep.  402. 

38.  Alicuage  of  a  party.— Under  the 
Removal  Act  of  1887,  providing  that  defend- 
ants who  are  citizens  of  states  other  than 
that  in  which  a  suit  is  brought  may  re- 
move the  action  to  the  federal  courts  for 
local  prejudice,  a  removal  is  not  authorized 
where  the  party  is  an  alien.  Cohn  v.  Louis- 
ville, N.  O.  &>  T.  R.  Co., 4.0  Am.  <&*  Eng.  R. 
Cas.  338,  39  Fed.  Rep.  227. 

But  under  the  above  act,  as  amended  by 
the  act  of  Aug.  13,  1888,  a  suit  brought  by 
aliens  against  a  foreign  corporation  may  be 
removed  to  a  federal  court  by  the  defend- 
ant. Sherwood  v.  Newport  News  &*  M.  V. 
Co.,  II  Fed.  Rep.  i. 

Where  a  citizen  of  another  state  is  sued 
in  the  courts  of  New  York,  he  is  not  entitled 
to  remove  the  cause  to  a  circuit  court  of 
the  United  States,  unless  all  the  plaintiffs 
are  citizens  of  the  state.  So  where  three 
aliens  unite  with  a  citizen  of  the  state,  in 
suing  a  foreign  railroad  company,  the  cause 
is  not  removable.  Dennf'*oun  v.  New  York 
Gm  N.  H.  R.  Co.,  I  Hilt.  yN.  v.)  62,  2  AM. 
Pr.  278,  415.— Quoted  in  Fisk  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  3  Abb.  Pr.  N.  S.  (N.  Y.) 
453.  53  Barb.  472. 

30.  When  cause  is  removable  on 
the  ground  of  separable  contro- 
versy.—(i)  General  rules. — A  cause  of  ac- 
tion cannot  be  split  up,  and  a  part  only 
removed  to  a  federal  court.  The  case  must 
be  so  removed  as  to  be  wholly  determined 
in  the  federal  court.  Hervey  v.  Illinois 
Midland R.  Co.,  7  Biss.  {U.  S.)  103. 

In  order  to  remove  a  cause,  under  the  act 


of  1875,  it  is  not  necessary  that  all  the  de- 
fendants be  residents  of  a  state  other  than 
the  one  wherein  the  plaintiff  resides.  It  is 
sufficient,  if  there  is  a  separable  controversy 
between  the  plaintiff  and  any  one  of  the 
defendants  who  is  a  citizen  of  a  different 
state.  Sheldon  v.  Keokuk  N.  L.  Packet  Co., 
9  Biss.  ( U.  S.)  yij,  i  Fed.  Rep.  789. 

Where  an  action  of  tort  is  brought 
against  two  roads,  one  a  resident  and  the 
other  non-resident,  and  each  is  liable,  the 
plaintiff  cannot,  by  joining  the  non-resi- 
dent defendant,  debar  it  from  removing  the 
cause  to  the  federal  court,  under  the  act  of 
1875,  where  the  controversy  is  severable. 
Clark  V.  Chicago,  M.  <&<•  St.  P.  R.  Co.,  3 
McCrary  (U.  S.)  591,  11  Fed.  Rep.  355. 
Spangler  v.  Atchison,  T.  &•  S.  F.  R.  Co.,  42 
Fed.  Rep.  305.— Applying  Pullman  Palace 
Car  Co.  v.  Speck,  113  U.  S.  84,  5  Sup.  Ct. 
Rep.  376. 

(2)  Illustrations. — The  state  of  Illinois 
filed  a  bill  against  defendant  company  and 
the  city  of  Chicago,  praying  that  the  title 
of  the  state  to  certain  lands  covered  by  the 
waters  of  Lake  Michigan  be  established. 
It  appeared  that  the  lands  had  been  granted 
to  the  company  by  the  legislature,  but  this 
act  was  subsequently  repealed.  The  com- 
pany claimed  that  the  repealing  act  was  in 
violation  of  the  federal  constitution,  but  the 
city  answered,  admitting  the  title  of  the 
state.  Held,  that  the  case  was  one  arising 
under  the  constitution  and  laws  of  the 
United  States,  and,  under  the  act  of  1875, 
was  removable  to  a  federal  court ;  and  that 
there  was  a  separable  controversy  between 
the  company  and  the  state  which  could  be 
determined  without  reference  to  the  city. 
Illinois  ex  rel.  v.  Illinois  C.  R.  Co.,  16  Fed. 
Rep.  881.— Applying  New  Orleans,  M.  & 
T.  R.  Co.  7/.  Mississippi,  102  U.  S.  140. 

In  an  action  against  two  or  more  persons 
to  appropriate  property  held  by  them  as 
tenants  in  common,  to  the  use  of  a  railway 
corporation,  there  is  a  separable  controversy 
between  such  corporation  and  each  of  said 
tenants,  which  can  be  fully  determined  as 
between  them,  and  if  either  of  such  tenants 
is  a  citizen  of  a  different  state  from  such 
corporation  he  may  remove  the  wnole  case 
into  the  circuit  court  under  the  second 
clause  of  section  2  of  the  act  of  1875. 
Northern  Pac.  Terminal  Co.  v.  Lowenberg, 
14  Am.&'Eng.  R.  Cas.  418,  9  Sawj/.  {(/.  S.) 
348,  18  Fed.  Rep.  339. 

Where  a  company  and  others  are  made 


S6 


REMOVAL  OF  CAUSES,  40. 


defendants  to  a  suit,  and  the  company  has 
the  suit  removed  to  a  federal  court  on  the 
grounfl  of  citizenship,  the  federal  court 
takes  jurisdiction  where  the  bill  discloses  a 
separable  controversy  between  the  plaintifif 
and  the  company,  and  a  motion  to  remand 
will  be  denied.  Chicago  &*  A.  A'.  Co.  v. 
Mw  Vorl;  L.  E.  &•  W.  R.  Co  ,  22  Am.  &^ 
Eiig.  A'.  Ctis.  265,  24  Ffti.  Hep.  516.— Ap- 
plying Wolverhampton  &  VV.  R.  Co.  v. 
London  &  N.  W.  Fi.  Co.,  L.  R.  16  Eq.  433. 

Where  a  joint  action  is  commenced 
against  a  foreign  railroad  company  and  one 
of  its  engineers  for  negligently  causing  the 
death  of  a  track  watchman,  the  plaintiff  and 
the  engineer  being  residents  of  the  same 
state,  there  is  a  separable  controversy,  and 
tlie  company  is  entitled  to  remove  the  suit 
to  a  federal  court.  Riuttd\.  Chicago,  M.  &* 
St.  P.  R.  Co.,  26  Fed.  Rep.  50.— Following 
Louisville  &  N.  R.  Co.  v.  Ide,  114  U.  S.  52, 
5  Sup.  Ct.  Rep.  735. 

A  bill  was  filed  against  two  railroad  com- 
panies, one  a  short-line  resident  company, 
and  the  other  a  long-line  non-resident  com- 
pany, praying  for  an  injunction  to  restrain 
the  short  line  from  issuing  certain  stock  to 
the  other  company,  or,  if  issued,  restraining 
the  company  from  further  transferring  it. 
Both  companies  answered,  by  which  it  ap- 
peared that  the  stock  had  been  transferred 
more  than  six  months  before  the  institution 
of  the  suit.  Held,  that  this  made  a  separa- 
ble controversy  between  the  plaintiffs  and 
the  long-line  road,  which  was  removable  to 
a  federal  court.  Taylor  County  v.  Baltimore 
&•  0.  R.  Co.,  35  Fed.  Rep.  161. 

A  railroad  company  commenced  a  pro- 
ceeding to  acquire  additional  land, a  part  of 
which  was  for  a  highway  in  lieu  of  one  which 
the  railroad  company  desired  to  take.  The 
statute  required  the  company  to  provide  a 
substitute  for  the  highway,  and  put  it  in  as 
good  situation  as  the  highway  was  previous 
to  the  alteration.  The  landowner  peti- 
tioned for  a  removal  of  the  proceeding  to  a 
federal  court  on  the  ground  that  he  was  a 
resident  of  another  state.  Held,  that  the 
controversy  between  the  railroad  and  the 
landowner  was  separable  from  that  between 
the  railroad  and  the  town  which  had  charge 
of  the  highways;  and,  therefore,  the  pro- 
ceeding was  removable.  New  York,  N.  H. 
A^H.  R.  Co.  V.  Coci-cro/t,  4.6  Fed.  Rep.  881. 
40.  Wlieu  cause  is  not  removable 
on  ground  of  separable  controversy. 
—A  suit  in  a  state  court  by  a  citizen  of 


Missouri  against  a  railroad  company  of  that 
state  and  citizens  of  New  York,  where  both 
are  necessary  parties,  is  not  removable  to 
the  United  States  circuit  court  under  the 
act  of  March  3,  1875.  The  fact  of  separate 
issues  under  separate  answers  does  not  make 
it  removable.  St.  Louis  dr*  S.  F.  R.  Co.  v. 
Wilson,  20  Am.  &^  Eng.  R.  Cas.  595,  114 
U.  S.  60,  5  Sup.  a.  Rep.  738. 

A  creditor's  bill  to  subject  encumbered 
railroad  property  to  payment  of  a  judgment, 
and  for  a  sale  and  distribution  of  the  pro- 
ceeds among  the  variouscreditors  according 
10  priorities,  constitutes  but  a  single  cause  of 
action,  and  is  not  removable  to  a  federal 
court,  though  the  various  parties  are  citi- 
zens of  different  states,  and  interpose  sepa- 
rate defenses.  Fidelity  I.,  T.  6-  S.  D.  Co. 
V.  Huntington,  117  U.  S.  280,  6  Sup.  Ct. 
Rep.  733. — F(JLLOWED  IN  Marsh  v.  Atlanta 
&  F.  R.  Co.,  53  Fed.  Rep.  168. 

Where  two  railroads  are  sued  jointly  for 
a  trespass,  but  plead  separately,  under  the 
Act  of  Congress  of  March  3,  1875,  §  2,  one  of 
the  corporations  cannot  remove  the  case 
into  the  circuit  court  of  the  United  States, 
on  the  ground  of  separable  interest,  without 
alleging  and  proving  that  the  two  corpora- 
tions were  fraudulently  joined  to  prevent 
such  removal.  Louisville  iS-»  A^.  R.  Co.  v. 
Wangelin,  132  U.  S.  599,  10  Sup.  Ct.  Rep. 
203.— Quoted  in  Ciiesapeake,  O.  &  S.  W. 
R.  Co.  V.  Hendricks,  88  Tenn.  710. 

No  right  of  removal  of  a  cause  from  a 
state  to  a  federal  court  exists  on  the  ground 
of  separable  controversy,  where  several  in- 
surance companies,  having  paid  a  loss  on 
goods  while  in  the  hands  of  a  carrier,  begin 
suit  in  equity  to  be  subrogated  to  the  rights 
of  the  insured,  and  make  a  compress  com- 
pany, which  had  obtained  insurance  from  a 
number  of  companies  for  the  benefit  of  the 
carrier,  a  co-defendant,  as  the  primary  con- 
troversy is  between  the  complainants  and 
the  carrier,  but  the  compress  company  is  a 
necessary  party.  Merchants'  C.  P.  &*  S.  Co. 
v.  Insurance  Co.  of  N.  A.,  151  U.  S.  368,  14 
Sup.  Ct,  Rep.  367.  S^Qa.\io  Insurance  Cos. 
V.  Carrier  Cos..  91  Tenn.  537,  195.  W.  Rep. 

755- 

The  employes  of  a  construction  company 
managed  a  train  so  negligently  as  to  injure 
an  employe,  who  commenced  a  joint  suit 
against  the  owner  of  the  train  and  the  owner 
of  the  track  where  the  train  was  being  oper- 
ated, and  the  construction  company  removed 
the  suit  to  a  federal  court  on  the  ground  of 


■m 


REMOVAL  OF  CAUSES,  41. 


87 


any  of  that 
vliere  both 
novable  to 
under  the 
)f  separate 
s  not  make 
".  A\  Co.  V. 
's.  595.  «'4 

icumbered 
judgment, 
if  the  pro- 
i  according 
jle  cause  of 
>  a  federal 
;s  are  citi- 
•pose  sepa- 
S.  D.  Co. 
6  Sttp.  Ct. 
V.  Atlanta 

jointly  for 
under  the 
;,  §  2,  one  of 
'e  tlie  case 
ted  States, 
:st,  without 
io  corpora- 
te prevent 
.  R.  Co.  V. 
Ct.  Rep. 
3.  &  S.  W. 

lO. 

jse  from  a 
the  ground 
several  in- 
I  a  loss  on 
rrier,  begin 
)  the  rights 
press  com- 
nce  from  a 
lefit  of  the 
imary  con- 
inants  and 
npany  is  a 
P.  5-  S.  Co. 
S.  368,  14 
trance  Cos. 
S.  IV.  Rep. 


local  prejudice.  Held,  that  there  was  not 
such  a  separable  controversy  as  would  give 
the  other  defendant  the  right  to  have  the 
suit  remanded,  under  the  Act  of  Congress  of 
March  3,  1887,  §  2.  Hai're  v.  Rome  R.  Co., 
57  Fed.  Rep.  321.— APPROVING  Whelan  v. 
New  York.  L.  E.  &  W.  R.  Co.,  35  Fed.  Rep. 
S49.  Disapproving  Anderson  v.  Bowers, 
43  Fed.  Rep.  321.  Quoting  FiskT/.  Henarie, 
32  Fed.  Rep.  417. —Distinguished  in  Gann 
V.  Northeastern  R.  Co.,  57  Fed.  Rep.  417. 

A  city  commenced  a  proceeding  against 
two  railroad  companies,  one  a  resident  and 
the  othera  non-resident,  to  condemn  certain 
land  for  street  purposes.  The  principal 
controversy  was  as  to  the  right  of  the  city 
to  condemn  the  particular  land,  and  if  the 
right  should  be  upheld,  then  the  question 
turned  upon  the  amount  of  damages  to  be 
awarded.  One  company  owned  the  land 
and  the  other  controlled  it  under  a  lease. 
//e/d,  that  there  was  not  a  separable  contro- 
versy which  would  enable  the  non-resident 
company  to  remove  the  proceeding  to  a 
federal  court  on  the  ground  of  citizenship 
alone.  LeMars  v.  Iowa  Falls  &*  S.  C.  R. 
Co.,  4  McCrary  (U.  S.)  2i8. 

A  bill  was  tiled  against  a  railroad  com- 
pany to  enforce  what  was  claimed  to  be  a 
first  lien  on  the  company's  track,  and  the 
mortgagee  of  the  company  and  a  mechanic's 
lien-holder  were  made  parties,  and  the  lat- 
ter filed  a  cross-petition  asserting  his  lien, 
to  which  the  mortgagee  was  made  a  party, 
in  a  petition  for  removal  the  mortgagee 
averred  that  he  held  the  first  lien,  and  that 
the  holder  of  the  mechanic's  lien  was  es- 
topped from  setting  up  his  as  a  first  lien. 
field,  that  the  real  questions  presented  were 
as  to  th'-  priority  of  the  several  liens,  and 
tliei  -as  no  separable  controversy  between 
the  n  Igagee  and  either  of  the  other  claim- 
:mts  \vt.  "h  could  be  determined  without  the 
railroad  company.  Bt'ssell  v.  Canada  &•  St. 
I..  R.  Co.,  39  Fed.  Rep.  225. 

A  city  commenced  a  proceeding  to  con- 
demn land  occupied  by  a  non-resident  rail- 
road company  under  a  perpetual  lease  from 
a  resident  company.  The  resident  company 
filed  a  disclaimer  showing  that  the  lease 
was  renewable  forever,  and  that  the  non- 
resident company  was  practically  ihe  owner, 
and  entitled  to  all  the  damages  suffered. 
Held,  thiit  notwithstanding  the  disclaimer 
the  resident  company  had  some  interest  in 
the  property,  so  that  there  was  not  a  sepa- 
rable controversy  between  the  city  and  ilic 


non-resident  company,  within  the  mean- 
ing of  the  removal  statutes.  Washington 
V.  Columbus  <S-  C.  M.  R.  Co.,  53  Fed.  Rep. 
673.— Following  Bellaire  v.  Baltimore  & 
O.  R.  Co.,  146  U.  S.  1 17.  13  Sup.  Ct.  Rep.  16. 

A  complaint  against  two  railway  com- 
panies, one  of  which  is  a  resident  and  the 
other  a  non-resident,  to  recover  damages 
for  injuries  resulting  from  their  joint  negli- 
gence as  common  carriers,  does  not  state 
such  a  separable  controversy  as  will  author- 
ize the  removal  thereof  to  the  United 
States  court  upon  the  application  of  the 
non-resident  corporation.  Bowley  v.  Rich- 
mond Sf  D,  R.  Co.,  woN.  Car.  315,  \\S.  E. 
Rep.  777. 

41.  Illustrations  of  controversies 
not  separable.— Certain  citizens  of  New 
Jersey  filed  a  bill  in  the  state  court  against 
a  railroad  of  that  state  in  which  they  were 
stockholders,  a  Pennsylvania  railroad,  and 
certain  other  citizens  of  different  states, 
to  annul  a  lease  of  their  road.  There  was 
no  separable  controversy.  Held,  that  it  was 
not  removable  to  the  federal  court  under 
the  act  of  March  3,  1875,  as  a  controversy 
between  citizens  of  different  states.  Central 
R.  Co.  v.  Mills,  20  Am.  &*  £"%.  R.  Cas.  613, 
113  U.S.  249,  5  Sup.  Ct.  Rep.  456 ;  affirming 
16  Am.  &*  Eng.  R.  Cas.  491,  20  Fed.  Rep. 
449.— Distinguished  in  Hamilton  v.  Sa- 
vannah, F.  &  VV.  R.  Co.,  52  Am.  &  Eng.  R. 
Cas.  130,  49  Fed.  Rep.  412.  Followed  in 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Grayson,  1 19 
U.  S.  240. 

A  suit  was  brought  against  several  rail- 
roads, chartered  in  different  states,  based 
on  an  association  of  the  roads  for  the  pur- 
pose of  carrying  through  freights.  Two  of 
the  roads  answered,  setting  up  oifferent  de- 
fenses. Held,  that  there  was  but  one  cause 
of  action,  and  that  it  was  not  removable  to 
a  federal  court,  under  the  act  of  1875,  §2, 
providing  for  the  removal  of  suits  where 
there  is  "a  controversy  which  is  wholly  be- 
tween citizens  of  different  states."  Louis- 
ville S-  N.  R.  Co.  V.  Ide,  114  [/.  S.  52,  5 
Sup.  Ct.  Rep.  735.  —  Followed  in  Buettel 
V.  Chicago,  M.  &  St.  P.  R.  Co..  ?6  Fed.  Rep. 
50. 

A  creditor's  bill  was  filed  in  a  state  court 
against  a  railroad  company,  all  the  parties 
being  citizens  of  the  state,  but  the  trustee 
in  a  mortgage  on  the  road,  who  was  a  non- 
resident, intervened.  Held,  that  a  separable 
controversy  was  not  presented,  within  the 
meaning  of  the  Act  of  Congress  of  1888,  §  2, 


38 


REMOVAL  OF  CAUSES,  42. 


providing  for  the  removal  of  any  suit  by  one 
of  several  defendants,  where  "  there  shall 
be  a  controversy  which  is  wholly  between 
citizens  of  different  states,  and  which  can 
be  fully  determined  as  between  them."  In 
rt  San  Antonio  &-  A.  P.  A\  Co.,  44  Feil.  Rep. 
i45._FoLLOWED  IN  Marsh  v.  Atlanta  &  F. 
R.Co.,  53  Fed.  Rep.  \(A.—Marshv.  Atlanta 
&-  F.  R.  Co.,  53  Fed.Rep.  168.— Distinguish- 
ing Fostcrt/.  Chesapeake  &  N.  R.  Co,  47  Fed. 
Rep.  379-  Following  Ayres  v.  Wiswall, 
112  U.  S.  187;  Fidelity  I..  T.  &  S.  D.  Co. 
V.  Huntington,  117  U.  S.  280,  Young  v. 
Parker.  132  U.  S.  267;  Sharon  v.  Tucker, 
144  U.  S.  533;  In  re  San  Antonio  &  A.  P. 
R.  Co.,  44  Fed.  Rep.  145. 

A  citizen  of  New  York  brought  suit  in  a 
state  court,  against  a  corporation  of  New 
Jersey  and  two  corporations  of  New  York, 
claiming  to  be  a  creditor,  without  judgment, 
of  the  New  Jersey  corporation.  The  com- 
plaint prayed  that  certain  real  estate  alleged 
to  have  been  paid  for  by  that  corporation, 
when  insolvent,  and  conveyed  directly  to 
one  of  the  other  corporations,  in  fraud  of 
plaintiff's  rights,  be  sold  to  satisfy  hisclaims, 
and  that  defendants  be  restrained  from  dis- 
posing of  or  encumbering  the  land.  No 
judgment  was  asked  for  against  the  New 
Jersey  corporation.  Held,  that  the  United 
States  circuit  court  could  not  entertain 
jurisdiction  of  the  case,  by  a  removal  of  the 
suit  by  the  New  Jersey  corporation,  there 
being  no  separate  controversy  between  plain  • 
tiff  and  the  New  Jersey  corporation.  Moore 
V.  North  River  Constr.  Co.,  22  Blatchf.  ( U. 
S.)  115. 

A  stockholder  in  a  resident  corporation 
instituted  an  action  against  it  and  a  non- 
resident corporation,  alleging  that,  under  a 
contract  between  them,  the  latter  holds  a 
majority  of  the  stock  of  the  former  and 
dominates  it ;  that  it  has  wrongfully  diverted 
its  funds;  that,  under  its  control,  the  former 
is  about  to  issue,  unlawfully,  certain  mort- 
gage bonds,  and  asking  for  an  account  and 
an  injunction,  and  for  other  relief.  Held, 
that  the  resident  corporation  was)  a  proper 
and  necessary  defendant,  and  that  the  action 
was  not  removable  into  the  United  States 
circuit  court,  on  petition  of  the  non-resident 
defendant  corporation.  Dotiglas  v.  Rich- 
mond Ss^  D.  R,  Co.,  106  A^.  Car.  65,  10  S.  E. 
Rep.  1048. 

In  such  action,  the  controversy  is  not 
wholly  between  citizens  of  different  states, 
nor  is  tliere  a  separable  controversy  bet\V('c:i 


plaintiffs  and  the  non-resident  corporation. 
Douglas  V.  Richmond  &•  D.  R.  Co.,  106  N, 
Car.  65,  10  5.  ^.  Rep.  1048. 

42.  Local  presjiidico  or  influence, 
when  ground.— A  suit  by  a  non-resident 
against  a  city  to  recover  $3000  due  on  bonds 
issued  by  the  city  for  railroad  stock,  and  in- 
terest, is  removable  from  a  state  court  to  a  U. 
S.  circuit  court  on  account  of  local  prejudice, 
under  the  Judiciary  Act,  §  12,  providing  that 
causes  between  a  citizen  of  the  state  where 
the  suit  is  brought  and  a  citizen  of  another 
state  may  be  removed  by  either  party,  where 
the  matter  exceeds  $500,  upon  making  affi- 
davit that  he  believes  that  justice  cannot  be 
obtained  on  account  of  prejudice  or  local 
influence,  and  giving  bond.  Lexington  v. 
Butler,  14  Wall.  ([/.  S.)  282. 

Where  such  bonds  are  made  payable  to 
the  order  of  the  company,  and  indorsed  to 
bearer,  the  jurisdiction  of  said  U.  S.  circuit 
court,  upon  such  removal,  is  not  defeated  by 
said  Judiciary  Act,  §  11,  providing  that  no 
district  or  circuit  court  shall  have  cognizance 
of  any  suit  to  recover  the  contents  of  any 
promissory  note,  or  other  chose  in  action,  in 
favor  of  an  assignee,  unless  such  suit  might 
have  been  prosecuted  in  such  court  to  re- 
cover the  said  contents  if  no  assignment 
had  been  made,  except  in  cases  of  foreign 
bills  of  exchange.  Lexington  v.  Butler,  14 
Wall  (U.S.)  282. 

Under  United  States  Rev.  St.  §  639,  subd. 
3,  known  as  the  "  local  prejudice  act,"  it  is 
not  necessary  in  order  to  remove  a  cause 
that  it  should  appear  from  the  record  that 
the  parties  were  citizens  of  different  states 
at  the  time  the  suit  wascommenced.  Miller 
V.  Chicago,  B.  &»  Q.  R.  Co.,  3  McCrary  {U. 
S.)  460,  17  Fed.  Rep.  97.  —  Reviewing 
Kaeiser  7/.  Illinois  C.  R.  Co.,  6  Fed.  Rep.  i. 

Where  a  citizen  of  Minnesota  sues  a  Wis- 
consin corporation  doing  business  in  Minne- 
sota, a  federal  circuit  court  for  the  latter 
state  has  original  jurisdiction  of  the  cause, 
under  the  Act  of  Congress  of  March  3.  1887, 
where  the  jurisdiction  depends  upon  citizen- 
ship; and  the  company  may  remove  the 
suit  to  that  court  on  the  ground  of  local 
prejudice.  Short  v.  Chicago,  M.  <S^  St.  P. 
R,  Co.,  34  Fed.  Rep.  225.  —  Following 
Fales  V.  Chicago,  M.  &  St.  P.  R.  Co.,  32 
Fed.  Rep.  673.  Overruling  Yuba  County 
V.  Pioneer  Gold  Min.Co.,  32  Fed.  Rep.  183. 

Where  a  citizen  of  one  state  commences 
an  action  against  corporations  of  the  state 
and   a   foreign    corporation,    to  enforce  a 


REMOVAL   OF  CAUSES,  43, 44. 


39 


corporation. 
Co.,  io6  N. 

influence, 

ion-resident 
ue  on  bonds 
ock,  and  in- 
court  toaU. 
al  prejudice, 
oviding  that 
state  where 
n  of  another 
party,  where 
making  affi- 
:e  cannot  be 
lice  or  local 
lexitigton  v. 

;  payable  to 
indorsed  to 
U.  S.  circuit 
defeated  by 
ling  that  no 
c  cognizance 
tents  of  any 
in  action,  in 
h  suit  might 
court  to  re- 
assignment 
:s  of  foreign 
V.  Butler,  14 

§  639,  subd. 
ce  act,"  it  is 
love  a  cause 

record  that 
ferent  states 
iced.  Miller 
McCrary  (U. 

Reviewing 
Fed.  Rep.  i. 
I  sues  a  Wis- 
:ss  in  Minne- 
)r  the  latter 
Df  the  cause, 
arch  3.  1887, 
J  pon  citizen- 
remove  the 
ind  of  local 
\f.  &-  St.  P. 
Following 
'.  R.  Co..  32 
f  uba  County 
:d.  Rep.  183. 

commences 
of  the  stnte 
o  enforce  a 


statutory  liability  for  causing  personal  in- 
juries, the  foreign  corporation  is  entitled  to 
aave  the  suit  removed  to  a  federal  court, 
under  the  Act  of  Congress  of  March  3,  1887, 
§  2,  relating  to  removals  on  account  of  local 
prejudice.  Whelan  v.  New  York,  L.  E.  &* 
W.  R.  Co.,  35  Fed.  Rep.  849.  i  L.  R.  A.  65. 
—Approved  in  Haire  v.  Rome  R.  Co.,  57 
Fed.  Rep.  321.  Followed  in  Cooper  v. 
Richmond  &  D.  R.  Co.,  42  Fed.  Rep.  697 ; 
Detroit  v.  Detroit  City  R.  Co.,  54  Fed. 
Rep.  I. 

A  suit  was  pending  against  a  street-railway 
company,  and  a  n<.n-resident  mortgagee  of 
the  company  petitioned  for  a  removal  to  a 
federal  court  on  the  ground  of  prejudice  and 
local  influence.  The  affidavit  filed  alleged 
that  a  riot  against  the  company  had  oc- 
curred, which  had  the  sympathy  of  the 
public,  and  that  the  city  authorities  had  re- 
fused to  protect  the  employes  and  property 
of  the  company,  and  that  a  public  meeting, 
largely  attended,  had  advised  the  bringing 
of  the  suit,  and  the  judges  of  the  state 
court  before  whom  the  suit  would  come 
would  soon  stand  for  re-election.  Held, 
sufficient  ground  for  removal  under  the 
statute.  Detroit  v.  Detroit  City  R.  Co.,  54 
Fed.  Rep.  i. 

Where  a  city  commences  a  suit  against  a 
street-railway  company  and  other  citizens 
of  the  state,  and  still  others  who  are  not 
citizens  of  the  state,  to  have  the  company's 
franchise  annulled,  and  to  compel  the  com- 
pany to  vacate  the  streets,  a  non-resident 
mortgagee  of  the  company  may  remove  the 
suit  to  a  federal  court  on  account  of  local 
prejudice,  under  the  Act  of  Congress  of  Aug. 
13,  1888.  §  2.  Detroit  v.  Detroit  City  R.  Co., 
54  Fed.  Rep.  i.  —  Following  Whelan  v. 
New  York,  L.  E.  &  W.  R.  Co..  35  Fed.  Rep. 
849;  Thouron  v.  East  Tenn.,  V.  &  G.  R. 
Co.,  38  Fed.  Rep.  673. 

43.  Local  prejudice,  when  not 
{;roun<l.  —  Where  defendani.  corporation 
has  been  created  by  the  consolidation  of 
different  corporations  of  different  states, 
and  aic  act  of  the  legislature  of  the  state  in 
wV  ich  suit  is  brougit  which  authorizes  the 
consolidation,  provides  that  the  consoli- 
dated company  should  be  deemed  a  cor- 
poration created  by  the  laws  of  that  state, 
such  corporation  is  a  citizen  of  the  state 
where  the  suit  is  brought  and  cannot  have 
the  cause  removed  under  the  local  preju- 
dice clause  of  the  act  of  1887,  although  the 
petition  for  removal  avers  that  defendant  is 


a  corporation  under  the  laws  of  another 
state  and  has  its  principal  office  and  place 
of  business  there.  Cohn  v.  Louisville,  N.  O. 
«S-  T.  R.  Co.,  40  Am.  &*  Et^.  R.  Cas.  338, 
39  Fed.  Rep.  227. 

The  supreme  court  of  the  United  States 
decided  that  certain  equipment  bonds  con- 
stituted no  lien  on  the  property  of  the  com- 
pany, but  subsequently  the  supreme  court 
of  the  state,  in  a  suit  on  other  bonds  of  the 
same  series,  decided  the  opposite.  Held, 
that  the  state  decision  was  not  sufficient  to 
show  prejudice  or  local  influence,  within 
the  meaning  of  the  removal  acts,  in  a  third 
suit  on  bonds  of  the  same  series.  Adelbert 
Colleger.  Toledo,  W.  <S-  W.  R.  Co.,  47  Fed. 
Rep.  836. 

Where  the  plaintifis  are  all  citizens  of  the 
state  where  suit  is  brought,  and  are  jointly 
interested  in  an  action  against  a  non-resi- 
dent, the  suit  cannot  be  removed  on  the 
application  of  the  defendant,  under  the  act 
of  March  3,  1887.  Gann  v.  Northeastern 
R.  Co.,  57  Fed.  .ff^;^.  417.— Distinguishing 
Haire  v.  Rome  R.  Co.,  57  Fed.  Rep.  321. 
Following  Young  v.  Parker,  132  U.  S.  267, 
10  Sup.  Ct.  Rep.  75. 

The  Act  of  Congress  of  1887  as  amended 
by  that  of  1888  does  not  authorize  the  re- 
moval of  a  cause  pending  in  a  superior  court 
of  the  state  between  a  citizen  of  another  state 
as  plaintiff,  and  a  resident  corporation  and  a 
foreign  corporation,  doing  business  and 
having  property  in  the  state,  as  defendants. 
Lawson  v.  Richmond  &»  D.  R.  Co.,  112  AT, 
Car.  390,  \T  S.  E.  Rep.  169. 

IV.  PROCEDURE. 

44.  Time  of  application.— The  Re- 
moval Act  of  1875,  §  3,  provides  that 
whenever  either  party,  entitled  to  remove 
any  suit  under  the  act,  shall  desire  to  re- 
move a  suit  from  a  state  to  a  federal  court, 
"  he  or  they  may  make  and  file  a  petition 
in  such  state  court  before  or  at  the  time  at 
which  said  cause  could  be  first  tried,  and 
before  the  trial."  Held,  that  an  application 
in  a  suit  pending  at  the  passage  of  the  act 
was  in  time,  if  made  at  the  first  term  there- 
after. Meyer  v.  Delaware  R.  Constr.  Co., 
100  U.  S.  457,  21  Am.  Ry.  Rep.  465. 

To  bar  the  right  of  removal,  under  said 
section,  on  the  ground  that  the  application 
was  not  made  "  before  the  trial,"  it  must 
appear  that  the  trial  had  actually  begun 
and  was  in  progress  when  the  application 


\ 


40 


REMOVAL   OF  CAUSES,  45,  40. 


was  made.     Meyer  v.  Delaware  R.  Constr. 
Co.,  loo  U.  S.  457,  21  Am.  Ry.  Rep.  465. 

If  the  term  at  which  the  cause  could 
otherwise  be  first  tried  is  one  which  occurs 
during  the  time  a  trial  of  the  cause  is  stayed 
by  an  order  of  the  state  court,  it  is  not  such 
a  term  as  is  meant  by  the  statute.  Warner 
V.  Pennsylvania  R.  Co.,  13  Blatchf.  {U.  S.) 
231. 

The  Act  of  Congress  of  March  3,  iS?7,  §  3, 
as  amended  by  the  act  of  Aujr.  !"  "''^8, 
provides  that  a  party  entitle  'to  -a 

suit  on  the  ground  of  non-resideii'  ,'  '  ''  - 
so  by  filing  a  petition  and  bond  in  Jie  nU'ia 
court  at  the  time,  or  any  time  before  the 
defendant  is  required  by  the  la  -3  A  the 
state,  or  the  rule  of  the  slate  court,  to  <. 
swer  or  plead  to  the  declaration  or  complaint. 
A  rule  of  the  supreme  court  of  New  Hamp- 
shire requires  special  pleas  in  proceedings 
at  law  to  be  filed  within  ninety  days  from 
the  commencement  of  the  term  at  which 
the  action  is  entered.  Held,  that  this  rule 
was  applicable  to  a  proceeding  by  a  railroad 
company  to  condemn  land,  and  a  removal 
can  only  be  had  before  the  expiration  of  the 
ninety  days.  Mt.  Washington  R.  Co.  v.  Coe, 
10  Fed.  Rep.  637.— APPLYING  Chase  v.  Sul- 
livan R.  Co.,  20  N.  H.  195;  Mississippi  & 
R.  R.  Boom  Co.  v.  Patterson,  98  U.  S.  403. 

The  application  should  be  made  before 
or  at  the  term  at  which  the  cause  is  first 
triable  under  the  law,  whether  the  parties 
are  ready  to  try  it  or  not.  Chicago,  B.  &* 
Q.  R.  Co.  V.  Welch,  44  Iowa  665. 

The  provision  for  the  removal  of  causes 
contained  in  U.  S.  Rev.  St.  §  639,  that  a 
removal  may  be  had  "  at  any  time  before 
the  trial  or  final  hearing  of  the  suit,"  is  not 
repealed  by  the  act  of  March  3,  1875,  and 
the  fact  that  it  has  been  on  the  calendar  for 
five  or  six  circuits  before  the  application  is 
made  is  no  objection  to  a  removal,  if  the 
application  is  made  before  the  final  hearing. 
Nye  V.  Northern  C.  R.  Co.,  24  Hun  (N.  V.) 
556. 

46.  Waiver  by  applyiiifir  too  late. 
—A  company  does  not  lose  its  right  to  a 
removal  by  contesting  the  case  on  its  merits 
in  the  state  court  after  its  application  for  a 
removal  has  been  made  and  refused.  New 
Orleans,  M.  &>  T.  R.  Co.  v.  Mississippi,  102 
U.  S.  135. 

Suit  was  commenced  against  a  railroad 
company,  and  under  the  state  statute  it  was 
required  to  answer  the  complaint  within  ten 
days  after  the  date  of  the  service  of  sum- 


mons. On  the  last  day  allowed  for  answer- 
ing, the  company  appeared  specially  and 
moved  to  set  aside  the  service  of  summons, 
but  did  not  ask  for  an  order  extending  the 
time  in  which  it  might  plead.  Thirty  days 
afterwards,  but  while  the  motion  was  still 
pending,  the  company  answered,  and  at  the 
same  time  filed  a  petition  and  bond  for  re- 
moval to  a  federal  court.  Held,  that  the 
case  should  be  remanded,  the  petition  and 
bond  not  having  been  filed  within  the  time 
required.  Wedekind  v.  Southern  Pac.  Co,, 
36  Fed.  Rep.  279,  13  Sawy.  {U.  S.)  475. 

North  L)ai<ota  Code  requires  a  defendant 
to  answer  civil  actions  in  thirty  days  after 
Jbr  service  of  summons;  and  in  railroad 
o  .^iniiation  proceedings  it  is  provided 
llint  jitht .  party  may  demand  a  trial  by  jury 
within  thirty  days  of  the  filing  of  the  com- 
missioner's report,  but  requires  no  further 
pleadings.  Held,  that  the  demand  for  a 
jury  trial  is  equivalent  to  filing  an  answer  in 
ordinary  suits,  and  a  federal  court  must  re- 
mand a  case  where  the  petition  for  the 
removal  is  filed  after  the  expiration  of  the 
thirty  days.  Minneapolis,  St.  P.  <S-  S.  St. 
M.  R.  Co.  V.  Nestor,  50  Fed.  Rep.  i. — FOL- 
LOWING Mississippi  &  R.  R.  Boom  Co.  v. 
Patterson,  98  U.  S.  403. 

A  landowner  waives  his  right  to  remove 
a  condemnation  proceeding  from  a  state  to 
a  federal  court  by  appealing  to  the  supreme 
court  of  the  state  and  having  the  record 
sent  there  on  certiorari.  Hudson  River  R. 
&'  T.  Co.  v.  Day,  54  Fed.  Rep.  545.— Fol- 
lowing Amy  V.  Manning,  144  Mass.  153,  10 
N.  E.  Rep.  737. 

40.  Affidavit  of  local  prejudice, 
who  may  make. — The  Act  of  Congress 
of  1867  provides  that  a  removal  of  a  cause 
may  be  had  "  at  any  time  before  the  final 
hearing  or  trial,"  and  the  provisions  of  the 
statute  are  substantially  re-enacted  in  U. 
S.  Rev.  St.,  1873,  §  639;  and  an  application 
complying  with  the  Rev.  St.  is  good,  though 
the  notice  states  that  the  application  is  un- 
der the  act  of  1867.  Minnett  v.  Miluaukee 
&-  St.  P.  R.  Co.,  3  Dill.  {U.S.)  460. 

The  president,  and  perhaps  the  general 
manager,  of  a  railway  company  is  prima 
facie  entitled  to  make  the  required  affidavit 
in  such  a  case.  Minnett  v.  Milwaukee  &* 
St.  P.  R.  Co.,  3 Dill.  (U.  S.)  460. 

An  affidavit  by  the  vice-president  of  a 
corporation,  that  he  has  reason  to  believe 
that,  from  prejudice  and  local  influence,  said 
defendant  corporation  will  not  be  able  to 


I 


1 


REMOVAL  OF  CAUSES,  47-49. 


41 


f 


obtain  justice  in  said  court,  is  sufficient  to 
authorize  the  state  court  to  transfer  the 
cause  to  the  federal  court.  Quigley  v.  Cen- 
tral Pac.  R.  Co.,  II  Nev.  35c.— Quoting 
Mahone  w.  Manchester  &  L.  R.  Corp.,  11 1 
Mass.  72. 

47.  Sufficiency  of  the  affidavit.— 
Act  of  Congress  of  1887  provides  for  the 
removal  of  causes  from  a  state  to  a  United 
States  circuit  court  "  when  it  shall  be  made 
to  appear  to  said  circuit  court  that,  from 
prejudice  or  local  influence,  he  [the  moving 
party]  will  not  be  able  to  obtain  justice  in 
such  state  court."  Held,  that  this  changed 
the  rule  existing  under  the  act  of  1867, 
which  made  the  right  of  removal  absolute 
upon  the  filing  of  an  affidavit  stating  such 
prejudice  or  local  influence,  and  it  was  not 
thereafter  a  matter  of  inquiry.  Under  the 
act  of  1887  an  affidavit  which  merely  states 
that  the  affiant  has  reason  to  believe,  and 
does  believe,  that  he  will  not  be  able  to  ob- 
tain justice  in  the  state  court  on  account  of 
prejudice  and  local  influence,  is  not  in  itself 
sufficient.  Short  v.  Chicago,  M.  St*  St.  P. 
K.  Co.,  34  Fed.  Rep.  225. 

Under  the  Act  of  Congress  of  March  3, 
1887,  where  a  petition  for  removal  is  accom- 
panied by  an  affidavit  on  behalf  of  a  defend- 
ant corporation,  by  a  person  authorized  to 
make  it,  stating  of  his  own  knowledge  the 
existence  of  prejudice  and  local  influence, 
it  is  sufficient  to  justify  an  order  for  re- 
moval, as  the  statute  does  not  provide  how 
the  prejudice  and  local  influence  shall  be 
made  to  appear.  Cooper  v.  Richmond  &•  D. 
R.  Co.,  42  Fed.  Rep.  697.— Following  Wlie- 
lan  V.  New  York.  L.  E.  &  W.  R.  Co.,  35  Fed. 
Rep.  849. 

And  where  such  an  affidavit  is  filed,  the 
court  will  not  hear  evidence  on  the  subject, 
nor  permit  the  adverse  party  to  traverse  it. 
Cooper  V.  Richmond  &•  D.  R.  Co. ,  42  Fed. 
Rep.  697.  —  Following  Whelan  v.  New 
York.  L.  E.  &  W.  R.  Co.,  35  Fed.  Rep.  849. 
— Q'**g^^y  V.  Central  Pac.  R.  Co.,  11  Nev, 
350. 

Under  the  act  of  1867,  requiring  the  mak- 
ing and  filing  of  an  affidavit  in  the  state 
court  by  the  party  seeking  the  removal, 
"  stating  that  he  has  reason  to,  and  does, 
believe  that,  from  prejudice  or  local  in- 
fluence, he  will  not  be  able  to  obtain  justice 
in  such  state  court,"  an  affidavit  in  which 
the  affiant  stated  "  that  he  has  reason  to 
believe,  etc..  omitting  the  words  "and 
does  "—held,  sufficient.    Baltimore,  P.  &»  C. 


R.  Co.  V.  New  Albany  &»  S.  R.  Co.,  53  /««/. 

597. 

Where  a  suit  is  brought  against  a  corpora- 
tion in  the  courts,  and  an  affidavit  for  re- 
moval alleges  that  the  corporation  is  a 
citizen  of  another  state,  it  is  insufficient  in 
not  stating  that  the  corporation  is  not  domi- 
ciled in  the  state.  Guinault  v.  Louisville 
<S-  A^.  R.  Co.,  40  Am.  &*  Etig.  R,  Cas,  340, 
41  La.  Ann.,  571,  6  So.  Rep.  850. 

48.  The  proper  court  to  apply  to.— 
Where  a  removal  is  applied  for  under  the 
act  of  1887  on  the  ground  of  prejudice  and 
local  influence,  the  affidavit  may  be  filed  in 
the  state  court,  and  a  certified  copy  sent  to 
the  federal  court.  Short  v.  Chicago,  M.  &^ 
St.  P.  R.  Co.,  34  Fed.  Rep.  225.— Overrul- 
ing Fisk  z/.  Henarie,  32  Fed.  Rep.  417. 

The  application  should  be  made  in  the 
first  instance  to  the  circuit  court,  and  not  to 
the  state  court ;  and  if,  upon  the  hearing  of 
such  application,  the  circuit  court  shall  be 
of  the  opinion  that  the  applicant  cannot  re- 
ceive justice  in  the  state  court  on  account 
of  such  influence  or  prejudice,  it  may  direct 
the  removal  of  the  cause.  Rome  &•  C. 
Constr.  Co.  v.  Smith,  84  Ga.  238,  10  S.  E. 
Rep.  728. 

40.  Requisites  of  the  petition  for 
removal.— (i)  Federal  decisions. —  A  suit 
was  pending  in  a  state  court  to  establish  a 
mechanic's  lien  on  a  railroad,  and  to  enforce 
it  in  preference  to  a  mortgage  lien  thereon. 
The  petition,  filed  for  a  removal  of  the 
cause  to  a  federal  court,  stated  that,  on  ac- 
count of  local  prejudice  a  fair  trial  could 
not  be  had  in  the  state  court,  but  it  also 
showed  that  they  were  entitled  to  a  removal, 
under  the  Removal  Act  of  1875,  on  account 
of  the  parties  being  citizens  of  different 
states.  The  petition  was  al^o  in  the  name 
of  two  persons,  one  of  whom  was  not  a 
party,  but  who  had  been  expected  to  be 
made  one  when  the  petition  was  drawn. 
Held,  the  application  being  sufficient  in 
form  in  other  respects,  that  it  was  the  duty 
of  the  court  to  treat  it  as  the  application  of 
the  one  who  was  a  party,  and  to  treat  the 
charge  of  local  prejudice  as  surplusage. 
Meyer  v.  Delaware  R.  Constr,  Co.,  too  U.  S. 
457,  21  Am.  Ry.  Rep.  465. 

The  petition  for  removal  was  not  signed. 
Held,  that  an  objection  to  be  available  for 
this  cause  must  be  made  in  the  state  court. 
Meyer  v.  Delaware  R.  Constr.  Co. ,  too  U.  S. 
457,  21  Am.  Ry.  Rep,  465. 

In  a  suit  by  a  corporation  of  one  state 


^ 


42 


REMOVAL  OF  CAUf.ES,  50. 


If 


against  a  citizen  of  anotlier  state,  it  is  sufTi- 
cient.  in  a  petition  by  defendant  for  removal, 
under  the  first  clause  of  section  2  of  the  act 
of  Marcli  3.  1875  (18  U.  S.  St.  at  L.  470),  to 
state  that  defendant  is  a  citizen  of  such 
other  state,  and  it  is  not  necessary  to  state 
that  he  was  sucii  citizen  when  the  suit 
was  commenced.  Chicago,  St.  L.  &•  N.  O. 
/?.  Co.  V.  AfcComb,  17  lUatchf.  {U.  S.)  yj\. 
But  under  the  act  of  March  3,  1875.  as  well 
as  under  the  Revised  Statutes,  a  case  can- 
not be  removed,  on  the  ground  of  citizen- 
ship of  the  parties,  unless  it  appears  from 
the  record  that  at  the  time  the  suit  was 
commenced  the  pnrties  were  citizens  of 
different  states.  Kaeiser  v.  Illinois  C.  R. 
Co..  2  McCrary  {U.  S.)  187,  6  F<'(1.  Rep.  i.— 
Rkviewed  in  Miller  v.  Ciiicago,  B.  &  Q. 
R.  Co..  3  McCrary  460,  17  Fed.  Rep.  97. 

A  corporation  was  sued  in  a  state  court, 
and  the  plaintiff  claimed  dam;igcs  amount- 
ing to  $27,000.  Without  answering  or  filing 
any  pleading  the  company  petitioned  for  a 
removal  to  a  federal  court,  stating  in  tlie 
petition  that  "  the  matter  and  amount  in 
dispute"  exceeded  $2000,  the  amount  nec- 
essary to  give  the  federal  court  jurisdic- 
tion. Held,  sufTicient  to  show  that  a  "con- 
troversy "  existed  between  the  parties,  within 
the  meaning  of  the  removal  acts.  It  is  not 
necessary  that  an  issue  be  formed  before  ^lle 
application  for  removal  is  made,  E^an  v, 
Chicago,  M.  Sf  St.  P.  R.  Co.,  53  Fed.  Rep. 
675. 

(2)  State  decisions. — In  an  action  against 
a  receiver  it  was  objected  that  there  was  no 
proof  of  his  appointment  as  such.  The 
complaint  purported  to  be  against  him  as 
receiver,  and  a  petition  filed  in  the  ciiuse  by 
him  for  a  removal  alleged  liis  appointment 
as  such.  Held,  that  the  court  would  take 
judicial  notice  of  this  petition,  which  would 
avoid  the  necessity  of  proof  of  the  appoint- 
ment, where  it  was  not  directly  put  in  issue. 
McNulta  V.  Lockridge,  32  ///.  App.  86 ;  af- 
firmed in  137  ///.  270,  27  N.  E.  Rep.  452. 

It  is  not  necessary  that  the  petition  for 
removal  should  show  that  the  parties  to  the 
action  were  residents  of  different  states  at 
the  time  of  its  commencement.  It  is  suffi- 
cient, under  the  Act  of  Congress  of  1875,  if 
it  appears  that  the  requisite  citizenship  exists 
at  the  time  of  filing  the  petition  for  removal. 
Nye  V.  Northern  C.  R.  Co.,  24  Hun  (N.  K.) 
556. 

It  is  not  sufficient  to  allege  in  a  pleading 
that  a  resident  corporation  was  joined  as 


defendant  to  prevent  a  non-resident  cor- 
poration from  removing  the  cause  to  the 
United  States  courts ;  that  fact,  if  it  can  be 
made  available  at  all,  must  be  affirmatively 
established  by  competent  evidence.  DowUy 
V.  Richmond  &*  D.  R.  Co.,  no  N.  Car.  315, 
14  5.  £•.  Rep.  777. 

A  company,  in  a  petition  to  remove  a 
cause  to  a  federal  court,  set  out  that  the 
question  involved  in  the  suit  was  the  set- 
tling of  a  tariff  rate  fixed  by  the  state  rail- 
road commission  ;  that  the  company  was  a 
corporation  organized  under  the  laws  of  an- 
other state,  and  that  its  functions  and  duties 
did  not  depend  upon  the  laws  of  congress. 
Held,  not  to  show  proper  grounds  for  a  re- 
moval. Stiite  V.  Southern  Pac.  Co.,  55  Am. 
(^  Eng.  R.  Cas.  539,  23  Oreg.  424,  31  Pac. 
Rep.  960.— Quoting  Union  Pac.  R.  Co.  v. 
Myers,  115  U.  S.  i,  5  Sup.  Ct.  Rep.  in 3. 

In  order  to  entitle  a  corporation  chartered 
by  congress  to  remove,  under  U.  S.  Rev. 
St.  §  640,  to  a  United  States  circuit  court 
a  suit  commenced  against  it  in  a  state  court, 
its  application  must  show  that  such  corpora- 
tion is  not  a  banking  corporation,  and  that 
it  has  a  defense  arising  under  the  constitu- 
tion, or  some  treaty  or  law  of  the  United 
States.  The  state  court  has  the  right  to 
examine  into  such  application  to  see  whether 
or  not  it  complies  with  all  the  requirements 
of  the  United  States  statute.  Texas  &•  P. 
R.  Co.  V.  McAllister,  12  Am.  6-  Eng.  R.  Cas. 
289,  59  Tex.  349.— Quoting  Baltimore  &  O. 
R.  Co.  V.  Koontz,  104  U.  S.  14 ;  Kern  v. 
Huidekoper,  103  U.  S.  490 ;  Home  L.  Ins. 
Co.  V.  Dunn,  19  Wall.  (U.S.)  214;  Meyer  v. 
Delaware  R.  Constr.  Co.,  100  U.  S.  457  ; 
Phoenix  Ins.  Co.  v.  Pechner,  95  U.  S.  185; 
Ex  parte  Wells,  3  Woods  (U.  S.)  128. 

50.  Who  may  make  the  petition.— 
The  Act  of  Congress  of  1887,35  amended 
in  1888,  withdraws  from  a  plaintiff  the  right 
to  remove  a  cause  from  a  state  to  a  fed- 
eral court.  Therefore,  if  a  landowner  in  a 
condemnation  proceeding  be  regarded  as 
the  plaintiff,  he  has  no  right  of  removal.  Aft. 
Washitigton  R.  Co.  v.  Coe,  50  Fed.  Rep.  637. 
A  landowner,  who  takes  an  appeal  from 
an  award  of  damages  in  his  favor,  in  a  con- 
demnation proceeding,  and  the  issue  is  con- 
fined solely  to  the  amount  of  damages,  is 
a  defendant,  for  the  purpose  of  removal  'p 
a  federal  court,  though  a  statute  of  the  sta'.e 
gives  him  the  right  to  open  and  close  the 
case  on  appeal.  Hudson  River  X.  &»  T.  Co. 
v.  Day,  54  Fed.  Rep.  545. 


REMOVAL  OF  CAUSES,  51-54. 


43 


sident  cor- 
luse  to  ihe 
if  it  can  be 
ffirmatively 
ce.  Bawley 
/.  Car,  315, 

>  remove  a 
ut  that  the 
/as  the  set- 
e  state  rail- 
ipany  wiis  a 

laws  of  an- 
s  and  duties 
)f  congress, 
ds  for  a  re- 
Co.,  55  Am. 
424.  31  Pac. 
c.  R.  Co.  V. 
lap.  1 1 13. 
jn  chartered 

U.  S.  Rev. 
ircuit  court 
L  state  court, 
ach  corpora- 
on,  and  that 
he  constitu- 

tiie  United 
the  right  to 

see  whether 
equirenients 
Texas  6-  P. 
Eng.  R.  Cas. 

timore  &  O. 

14 ;  Kern  v. 

ome  L.  Ins. 

;  Meyer  v. 

U.  S.  457 ; 
U.  S.  185; 

.)  128. 

[ictitioii.— 

as  amended 
tiff  the  right 
te  to  a  fed- 
downer  in  a 
regarded  as 
em  oval.  M/. 
ed.  Kep.  637. 
appeal  from 
or,  in  a  con- 
issue  is  con- 
damages,  is 
removal  'o 
e  of  the  state 
nd  close  the 
R.  «S-  T.  Co. 


^1 


51.  Verification  of  petition.  —  It  is 

not  necessary,  under  the  Act  of  Congress  of 
1875,  that  a  petition  for  removal  be  verified 
by  affidavit.  Osgood  v.  Chicago,  Di'i&'  V. 
R.  Co.,  6  Btss.  U.  S.)  330. 

52.  Presentint;  the  petition  to 
state  court.— The  petition  for  removal 
should  be  presented  to  the  state  court  and 
the  opportunity  given  to  that  court  to  act. 
Presentation  to  the  clerk  of  the  court,  or  to 
the  judge  out  of  term  time,  is  not  sufficient. 
Texas  &»  P.  R.  Co.  v.  Bloom,  85  Tex.  279,  20 
S.  W.  Rep.  133. —  Reviewing  Roberts  v. 
Chicago,  St.  P.,  M.  &  O.  R.  Co.,  45  Fed. 

Rep.  433- 

53.  SiifHclency  of  the  bond.  —  The 

Removal  Act  of  1875,  §  3,  provides  that  a 
party  removing  a  case  from  a  state  to  a  fed- 
eral court  shall  give  a  bond  with  "  good  and 
sufficient  surety."  In  a  suit  between  a  con- 
struction company  and  a  railroad,  a  bond 
was  given  for  removal  with  two  sureties, 
one  of  which  was  an  attorney  in  the  case, 
which  was  forbidden  by  the  state  law.  Held, 
without  deciding  whether  the  disability  of 
the  attorney  would  apply  under  the  federal 
law,  that  two  sureties  were  not  required,  and 
the  bond  was  sufficient  if  the  other  signer 
was  "  good  and  sufficient."  Meyer  v.  Dela- 
ware R.  Constr.  Co.,  100  U.  S.  457,  21  Am. 
Ry.  Rep.  465. 

Where  a  petition  for  removal  is  properly 
made  at  the  first  term  at  which  the  cause 
could  be  tried,  accompanied  by  the  bond  re- 
quired by  law,  and  no  objection  is  made  as  to 
the  formol  the  bond  or  sufficiencyof  the  sure- 
ties, the  presumption  is  that  it  is  such  a  bond 
as  the  act  of  congress  requires,  and  the  court 
should  make  an  order  for  removal.  Terre 
Haute  &^  1.  R.  Co.  v.  Abend,  9  ///.  App.  304. 

The  Act  of  Congress  of  1875,  relatmg  to 
the  removal  of  causes,  provides  that  the 
petitioner  must  offer  in  the  state  court 
"good  and  sufllicient  surety."  Held,  that 
this  does  not  require  the  petitioner  to  sign 
the  bond,  if  properly  signed  by  "  good  and 
sufficient"  sureties.  Nye  v.  Northern  C.  R. 
Co..  24  Hun  (N.  V.)  556. 

A  state  court  does  not  err  in  refusing  to 
remove  a  cause  where  no  bond  is  filed  other 
than  an  incomplete  one  having  no  penalty 
named  therein.  Quarrt'er  v.  Baltimore  &* 
O.  R.  Co..  18  Am.S^  Eng.  R.  Cas.  535.  20 
W.  Va.  424. 

54.  Effect  of  filing  petition  and 
bond  on  jurisdiction  of  state  court. 
—After  removal  the  state  court  siiould  pro- 


ceed no  further.  Home  L.  Ins.  Co,  v.  Dunn, 
19  Wall.  (U.  S.)  214.— Quoted  in  Texas 
&  P.  R.  Co.  V.  McAllister,  59  Tex.  349. 

A  state  court  may  decide  on  the  face 
of  the  papers  whether  a  removal  case  has 
been  made  out.  If  its  decision  is  adverse, 
the  facts  may  be  reviewed  on  appeal.  Stone 
V.  South  Carolina,  117  i/.  S.  430,  6  Sup.  Ct. 
Rep.  799.— Followed  in  Burlington,  C.  R. 
&  N.  R.  Co.  V.  Dunn,  122  U.  S.  513. 

If  the  petition  is  insufficient,  the  state 
court  may  properly  disregard  it,  and  refuse 
to  remove  the  cause.  Such  petition  must 
show  that  the  plaintiff  is  a  citizen  of  the 
state  in  which  the  suit  is  brought,  and  the 
defendant  a  citizen  of  another  state,  at  the 
time  the  suit  was  commenced.  Indianap- 
olis, B.  &»  W.  R.  Co.  V.  Risley,  50  Ind.  60. 
Lawson  v.  Richmond  &*  D.  R.  Co.,  112  N. 
Car.  390,  17  5".  £".  Rep.  169.  White  v.  Chesa- 
peake  6^  0.  R.  Co.,  20  JV.  Va.  792. 

When  a  petition  and  bond  are  filed  under 
the  act  of  1875,  in  a  state  court  during  va- 
cation, the  jurisdiction  of  that  court  ceases- 
It  does  not  remain  until  the  court  can  act 
upon  them  in  term  time ;  and  it  is  not  for 
the  state  court  to  decide  whether  a  proper 
case  is  made.  Osgood  v.  Chicago,  D,  &*  V. 
R.  Co.,6Biss.  {[/.  5.) 330. 

It  is  well  settled  that  after  the  filing  of  a 
petition  and  bond  in  due  form,  for  the  re- 
moval of  a  cause,  the  state  court  has  no 
power  to  refuse  the  removal,  and  can  do 
nothing  to  affect  the  right,  and  its  rightful 
jurisdiction  ceases  eo  instants.  Terre  Haute 
(S-  /.  R.  Co.  v.  Abend,  9  ///.  App.  304. 

And  a  removal  cannot  be  evaded  by  al- 
lowing an  amendment  reducing  the  amount 
in  controversy  below  the  amount  necessary 
to  give  the  federal  court  jurisdiction. 
Louisville  <S-  N.  R.  Co.  v.  Roehling,  1 1  ///. 
App.  264. 

Or  by  allowing  a  nonsuit.  Beery  v.  Chi- 
cago, R.  I.  6-  P.  R,  Co.,  64  Mo.  533.— Ap- 
proving Kanousez/.  Martin,  15  How.  (U.  S.) 
198 ;  Gordon  v.  Longest,  16  Pet.  (U.  S.)  97. 
Following  Stanley  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  62  Mo.  508 ;  Herryford  v.  iEtna  Ins. 
Co.,  42  Mo.  148.— Followed  in  Powell  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  64  Mo.  544. 

The  mere  filing  in  the  state  court  of  the 
petition  for  removal  and  bond  is  not  of  it- 
self a  removal  of  the  cause.  Until  the 
United  States  court  acquires  jurisdiction, 
the  same  is  retained  by  the  state  court, 
which  may  allow  plaintiffs  to  amend  by 
striking  from  the  declaration  the  name  of  the 


44 


REMOVAL   OF   CAUSES,  55,  60. 


defendant  alleged  to  be  non-resident.   Home 
6-  C.  CoHstr.  Co.  V.  SpnitA,  84  Ga.  238,  10  5. 

a:  av/».  728. 

Where  the  prerequisites  for  removal  un- 
der the  act  of  congress  do  not  exist,  the 
federal  tribunal  has  no  jurisdiction  to  re- 
move or  try  a  case,  and  where  such  court 
makes  an  order  that  the  case  be  certified 
thereto,  the  state  court  may  decline  to  per- 
mit the  removal.  Lawson  v.  Kichmond  &* 
D.  A".  Co.,  i\2  N.  Car.  390,  17  S.  E,  Rep. 
169. 

Where  the  petition  of  removal  by  a  de- 
fendant is  improperly  overruled,  such  de- 
fendant is  not  bound,  in  order  to  preserve 
his  right  of  removal,  to  disregard  the  over- 
ruling of  his  application,  and  proceed  to 
perfect  the  transfer  of  the  case.  He  may 
remain  in  the  state  court,  and  prevent,  if 
possible,  the  prejudicial  effect  of  its  erro- 
neous ruling,  by  all  the  means  authorized 
by  the  laws  of  the  state.  Erie  A'.  Co.  v. 
Stritiger,  32  Ohio  St.  468.  —  FOLLOWING 
Baltimore  &  O.  R.  Co.  v.  Cary,  28  Ohio  St. 
208.  QuoTiNc;  Hatch  v.  Chicago,  R.  I.  & 
P.  R.  C0..6  Blatchf.  (U.  S.)  105. 

55.  Proceedings  in  federal  court 
allcr  reinovnL  —  A  suit  was  brought 
against  a  railroad  conipany  in  Minnesota 
for  a  trespass  in  cutting  logs  from  plaintiff's 
lands.  Under  the  practice  in  that  state  the 
company  set  up  as  a  defense  both  legal  and 
equitable  matters.  Held,  that  the  equitable 
matters  could  not  be  available  after  the  case 
was  removed  to  a  federal  court.  Northern 
Pac.  R.  Co.  V.  Paine,  1 19  i/.  5.  561,  7  Sup. 
a.  Rep.  323. 

A  defendant  sued  in  a  state  court,  by  ap- 
pearing and  filing  a  petition  and  bond  for  a 
removal  to  a  federal  court,  does  not  thereby 
waive  the  right  to  object  to  the  sufficiency 
of  the  service  of  the  summons;  but  such 
question  may  be  raised  after  the  case  is  filed 
in  the  federal  court.  Forrest  v.  Union  Pac. 
R.  Co.,  47  Fed.  Rep.  i. 

The  case  as  made  by  the  petition  for  re- 
moval and  the  pleadings  at  the  time  of  the 
removal  is  the  test  of  the  right  to  remove  ; 
and  no  amendment  can  be  made  in  the  cir- 
cuit court,  setting  up  grounds  for  removal 
whicli  was  not  presented  to  the  state  court 
on  the  motion  to  remove.  Fit^erald  v. 
Missouri  Pac.  R.  Co.,  50  Am.  &*  Eng.  R. 
Cas.  622,  45  Fed.  Rep.  8i2. 

Where  a  cause  is  one  that  is  removable, 
the  federal  court  has  jurisdiction  to  try  and 
determine  it,  although  its  nature  is  sucli  that 


it  could  not  originally  have  been  brought  in 
that  court.  People  ex  rel.  v.  Colorado  C.  R. 
Co.,  45  Am.  i^  Eng.  R.  Cas.  599,  42  Fed. 
Rep.  638.— Referring  to  Union  Pac.  R. 
Co.  V.  Myers,  115  U.  S.  i,  5  Sup.  Ct.  Rep. 

1113. 
When  the  jurisdiction  of  the  state  court 

ceases,  that  of  the  federal  court  attaches  for 
some  purposes,  on  entering  a  copy  of  the 
record,  so  that  the  court  may  know  the 
facts ;  but  the  jurisdiction  of  the  federal 
court  is  not  complete,  so  as  to  hear  and  de- 
termine the  cause,  although  a  transcript  is 
filed,  until  on  the  day  prescribed  in  the 
statute,  or  after,  if  the  court  accepts  it.  /n 
re  lUvnesville 5r*  M.  R.  Co.,  2  McCrary  ( U. 
S.)  216,  4  Fed.  Rep.  10.  —  Followed  in 
Kansas  City  &  T.  R.  Co.  7/.  Interstate  Lum- 
ber Co.,  36  Fed.  Rep.  9. 

Where  a  state  court  giants  an  injunction 
and  appoints  a  receiver  of  a  railroad  on  an 
ex  parte  application,  the  defendants  may 
move  to  dissolve  the  injunction  and  dis- 
charge the  receiver  after  they  remove  the 
suit  to  a  federal  court,  at  any  time  after  the 
record  is  filed  in  that  court,  upon  giving 
notice  to  the  plaintiff.  Texas  &•  St.  L.  R. 
Co.  v.  Rust,  5  McCrary  (U.  S.)  348,  17  Fed. 
Rep.  275. 

Suit  was  commenced  in  a  state  court 
against  a  foreign  railroad  corporation,  the 
court  having,  by  statute,  jurisdiction  only  in 
case  of  a  resident  plaintiff.  The  defendant 
answered  setting  up  that  the  plaintiff  was  a 
resident  of  England,  and  then  removed 
the  case  into  the  U.  S.  court,  and  moved 
there  for  security  for  costs,  on  the  ground 
of  the  non-residence  of  plaintiff.  Counter 
affidavits  being  put  in  — held,  that,  as  the 
issue  of  the  residence  of  the  plaintiff  was 
the  material  one  in  the  case,  and  as  the  U. 
S.  court  could  have  no  jurisdiction  if  the 
state  court  would  not  have  had,  the  issue 
must  be  left  to  be  determined  at  the  trial. 
Simpkins  v.  Lake  Shore  &•  M.  S,  R.  Co.,  21 
Blatchf.  (U.  S.)  554,  19  Fed.  Rep.  802. 

50.  M«ttioii  to  reiiiaiid,  geiicrully. 
—  An  averment  in  a  petition  for  removal  by 
a  corporation  that  it  has  a  defense  arising 
under  the  constitution  and  laws  of  the 
United  States,  will  not  be  inquired  into  on 
a  motion  to  remand  the  case  to  the  state 
court.  Texas  v.  Texas  &•  P.  R.  Co.,  3 
U^oods  {U.  S.)  308. 

Under  U.  S.  Rev.  St.  §  640,  a  defend- 
ant corporation  may  remove  a  cause  from  a 
slate  to  a   federal  court,  where  a  state  is 


REMOVAL  OF  CAUSES,  67-50.— RENT. 


45 


jrought  in 
'Uiio  C.  R. 
9,  42  Fed, 
Pac.  R. 
.  Ct.  Rep. 

tate  court 
taclies  for 
ipy  of  the 
know  the 
ie  federal 
ar  and  de- 
inscript  is 
ed  in  the 
pts  it.  In 
Crary  ( U, 
.OWED  IN 
itutc  Lum- 

injunction 
oad  on  an 
dants  may 
and  dis- 
smovc  the 
e  after  the 
on  giving 
St.  L.  R. 
48,  17  Fed, 

tate  court 
ration,  the 
ion  only  in 
defendant 
ntifl  was  a 
1  removed 
ind  moved 
he  ground 
Counter 
hat,  as  the 
aintifT  was 
1  as  the  U. 
tion  if  the 
1,  the  issue 
it  the  trial. 
.  R.  Co.,  21 
>.  802. 
:ciicrally. 
removal  by 
nse  arising 
ws  of  the 
ed  into  on 
o  the  state 
R.  Co.,  3 


plaintiff.  The  eleventh  amendment  of  the 
constitution  of  the  United  Slates  only  pro- 
hibits suits  against  a  state,  and  does  not  ap- 
ply where  the  state  is  piaintifT.  Texas  v. 
TexiU  Sh  p.  R.  Co.,  3  Woods (U.  S.)  308. 

Wliere  a  motion  is  made  to  remand  a 
case  on  tiie  ground  that  no  federal  question 
is  involved,  the  court  will  not  anticipate  the 
trial  of  the  case,  and  proceed  to  construe 
the  act  of  congress,  and  determine  the 
rights  of  the  parties  thereunder.  It  cannot 
eliminate  tlic  federal  question  by  a  prema- 
ture decision  of  the  case,  and  then  remand 
the  suit  on  the  theory  tliat  there  is  no 
lunger  u  federal  controversy  in  the  case. 
Loxvry  v.  Chicago,  />'.  &*  Q.  R.  Co.,  46  Fed, 
Rt'p.  83. 

On  a  motion  to  remand  a  case  when  it  is 
alleged  the  record  of  the  slate  court  mis- 
states the  facts  because  of  an  error  on  the 
part  of  a  ministerial  officer  of  the  state 
court  in  making  up  the  record,  parol  testi- 
mony is  competent  to  show  tlic  fact,  though 
the  same  may  contradict  the  record  as  made 
up  by  the  clerk.  Stephens  v.  St.  Louis  <S>» 
S.  F.  R.  Co.,  50  Apn.  &>  Eng.  R.  Cas.  618,47 
Fed.  Rep.  530. 

57. burden  of  proof.  —  Where  a 

railroad  company  removes  a  suit  against  it 
to  a  federal  court  on  the  ground  that  it  is 
a  controversy  between  citizens  of  different 
states,  and  the  plaintiff  moves  to  remand 
the  suit,  alleging  that  both  are  citizens  of 
the  .same  state,  the  burden  of  proof  is  on  the 
company  to  siiow  that  both  are  not  citizens 
of  tlie  same  state.  Copeland  v.  Memphis 
6-  C.  R.  Co.,  3  Woods  {U.  S.)  651.  —  Fol- 
lowed IN  Colglazier  v.  Louisville,  N.  A.  & 
C.  R.  Co.,  20  Am.  &  Eng.  R.  Cas.  611,  22 
Fed.  Rep.  568. 

58.  Wlicii  a  reiiiand  is  proper.— 
The  principle  that  a  suit  in  a  state  court, 
which  falls  within  the  description  of  suits 
removable  into  the  circuit  court,  may  be 
removed,  although  it  could  not  originally 
have  been  brought  in  the  circuit  court,  is 
not  affected  by  the  act  of  March  3,  1875, 
§  5  ('8  U.  S.  St.  at  L  472),  which  provides 
for  the  dismissal  or  remanding  of  suits  not 
really  and  substantially  involving  a  dispute 
or  controversy  within  the  jurisdiction  of 
the  circuit  court.  Warner  v.  Pennsylvania 
R.  Co.,  13  Blatchf.  {U.  S.)  231. 

When  it  is  settled  that  the  jurisdiction  of 
the  circuit  court  in  a  removal  cause  is 
doubtful,  all  doubt  as  to  what  the  court 
should  do  is  dispelled,  and  the  cause  will  be 


remanded.  This  rule  is  in  harmony  with 
the  spirit  and  design  of  the  act  of  congress 
repealing  the  act  which  allowed  an  appeal 
or  writ  of  error  from  ari  order  remanding 
a  cause.  Fitzgerald^.  Missouri  Pac.  R.  Co., 
50  Am,  &*  Eng,  R,  Cas.  622,  45  F*d,  Rep, 
812. 

A  petition  by  a  corporation  for  removal 
of  a  suit,  hich  merely  avers  that  the  cor- 
poration is  a  citizen  of  a  particular  state,  is 
not  sufTicient.  A  corporation  is  not  a  citi- 
zen of  a  Slate,  within  the  meaning  of  the 
constitution.  The  averment  should  be  that 
it  is  a  corporation  created  by  the  laws  of  a 
particular  state  ;  and  where  the  averment  is 
that  it  is  a  citizen  of  a  particular  state,  a 
motion  to  remand  should  be  granted, 
although  piaintifT  has  appeared  in  the  fed- 
eral court  and  demurred  to  the  company's 
answer.  Frisbie  v.  Chesapeake  &»  O,  R. 
Co.,  57  Fed.  Rep.  i, 

50.  Effect  of  remanding.  —  Deposi- 
tions taken  in  accordance  with  the  laws  of 
the  state  after  a  cause  has  been  removed 
from  the  state  to  the  federal  court,  and 
while  it  was  pending  in  the  federal  court, 
pursuant  to  interrogatories  filed  before  the 
cause  was  removed,  are  admissible  in  evi- 
dence on  the  trial  in  the  state  court.  Mis- 
souri Pac,  R.  Co,  V.  White,  48  Am.  6-  Eng, 
R.  Cas,  206,  80  Tex.  202,  1  $  S.  W.  Rep,  808. 
—Approving  Warren  v.  Younger,  18  Fed 
Rep.  859. 


RENDITION. 
Of  judgment,  see  Judgment,  1-8. 


RENEWAL. 

Of  negotiable  paper,  see  Bills,  etc.,  7. 
—  past  after  expiration,  see  Passes,  8. 


RENT. 


Enforcement  of  payment  of,  see  Equity,  18. 
Of  leased  lines,  liability  of  receiver  for,  see 
Reckivers,  67. 

—  right  of  way,  claim  for,  when  prior  to 

mortgage,  see  Mortgages,  07. 

—  submerged    land,   liability    of  lessee  to 

lessor  for,  see  Leases,  etc  ,  60. 

Payment  of  claims  for,  by  receiTer,  see  Re- 
ceivers, 83. 

Priority  of  mortgage  over  claims  for,  see 
Mortgages,  114,  115. 

Right  of  mortgagees  to,  see  Leases,  etc.  ,  07. 

Under  leases  generally,  see  Landlord  and 
Tenant,  6. 


nr 


f:.    i 


46 


RENTALS-REORGANIZATION,  1. 


When  liability  of  IctMC   for,  ceases, 
Leases,  ktc,  80. 


see 


RENTALS. 
When  exempt  from  taxes, 
180. 


see  Taxation, 


RENTAL  VALVE. 
As  an  element  of  damages,  see  Flooding 
Lands,  Off. 

—  the  measure  of  damages,  see  Eminent  Do- 

main, 058. 
Before  and  after  construction  of  road,  proof 

of,  see  Stkkeis  and  IIiciiwavs,  tiOO. 
Difference  in,  before  and  after  building  the 

road,  see  Strkkts  and  IIh.iiways,  ti77. 
Evidence  of  loss  of,  sec  Damaoks,  05. 
on  assessment  of  land  damages,  see 

Eminent  Domain,  OOH. 
Leases  as  evidence  of,  sec  Elevated  Rail- 
ways, 105. 
Limitation  of  time  to  sue  for  damages  to,  see 

Elevateo  Railways,  I  OH. 
Measure  of  damages  for  depreciation  of,  see 

Elevated  Railways,  148-160. 
Of  contiguous   property,  evidence   of,   see 

Elevated  Railways,  107. 

—  property  similarly  situated,  showing  loss 

of,  see  Streets  and  Highways,  207. 

Opinions  of  farmers  as  to,  see  Witnesses, 
101. 

witnesses  as  to,  see  Witnesses,  114. 

Proof  of  diminution  of,  see  Elevated  Rail- 
ways, 104. 

Reduction  of,  as  an  element  of  damages,  see 
Streets  and  Hiohways,  200. 

Who  may  sue  for  diminution  of,  see  Elevated 
Railways,  03. 


REOPENING. 
Of  accounts,  see  Accounts,  3. 

REORGANIZATION. 

After  sale  by  receiver,  see  Receivers,  110. 

New  company  takes  burden  of  paying  com- 
pensation for  land  taken,  see  Eminent 
Domain,  .383. 

Power  to  issue  bonds  under  agreement  for, 
see  Bonds,  5. 

Property  in  hands  of  new  company,  when 
subject  to  execution,  see  Execution,  8. 

When  exemption  from  taxes  passes  to  re- 
organized road,  see  Taxation,  167. 

1.  Validity  of  schemes  for.  —  (i) 
General  rules.— Tht  francliise  to  exist  as  a 
corporation  pertains  to  the  stockholders  as 
such,  and  each  one's  interest  therein  accom- 


panies the  transfer  of  his  stock.  By  statute 
ill  this  state  the  purchasers  of  a  railroad  are 
enabled  to  constitute  themselves  a  body 
corporate,  and  have  all  the  rights  and  fran- 
chises in  respect  to  it  the  company  was 
vested  with.  A/ej/fr  V.  Johnston,  53  Ala.  237, 
1 5  Am.  liy.  Rep.  467. 

Mortgagees  o(  a  railroad,  or  purchasers 
in  possession,  have  sufficient  powers  in  the 
nature  of  a  franchise  to  enable  them  to  dis- 
char(;e  the  duties  which  the  public  have  a 
right  to  demand,  by  keeping  in  repair  and 
operating  the  road,  and  to  demand  and  re- 
ceive a  suitable  reward  therefor,  and  for 
this  purpose  they  may  use  their  own  proper 
names,  or  adopt  any  other  name  they  may 
choose,  and  arc  not  bound  to  do  business  in 
the  name  of  the  company,  to  whose  rights 
they  have  succeeded.  Palmer  v.  Forbes,  23 
III.  301. 

Me.  Rev.  St.,  1857,  ch. 46,  authorizing  the 
mortgagees  of  iiisoivcnt  railroad  corpora- 
tions to  form  themselves  into  a  "  new  and 
distinct "  corporation,  is  to  be  construed  in 
connection  with  ch.  46,  §  17.  States,  Maine 
C.  R.  Co.,  66  Hie.  488.  19  Am.  Ry.  Rep.  323, 

Under  N.  II.  Act  of  1881,  ch.  232, entitled 
"  An  act  in  relation  to  the  foreclosure  of  the 
Manchester  «&  Keene  railroad,"  the  road  was 
legally  purchased  by  the  Lowell  and  the 
Concord  companies,  and  was  legally  oper- 
ated by  the  Lowell  company  in  1884.  Bos- 
ion,  C.  6-  M.  R.  Co.  v.  Boston  <S-  L.  R.  Co., 
51  Avi.  &•  Bug.  R.  Cas.  106, 65  N.  H.  393, 23 
Atl.  Hep.  529. 

Where,  on  a  foreclosure  sale  of  railroad 
property,  a  committee  of  bondholders  is 
appointed  for  the  purpose  of  reorganizing,  a 
suit  is  not  maintainable  to  have  a  contract 
made  by  them  declared  null  and  void,  where 
it  is  within  the  scope  of  their  authority,  in 
the  absence  of  evidence  of  fraud  ;  and  facts 
which  might  amount  to  a  violation  of  their 
trust  relations  to  the  bondholders  are  not 
sufficient.  Brooks  v.  Dick,  4  Silv.  App.  645, 
135  A'.  Y.  652,  32  N.  E.  Rep.  230;  affirming 
17  N.  V.  Supp.  259,  62  Hun  622,  mem.,  43 
N.  V.  S.  R.  37. 

(2)  Illustrations. — A  reorganization  plan 
which  provides  that  the  holders  of  unse- 
cured indebtedness  shall  receive  preferred 
income  bonds  of  the  company  at  par  for  the 
full  amount  of  their  claims,  and  that  the 
stockholders  shall  receive  new  stock  at  a 
certain  ratio,  is  not  fraudulent  as  to  the 
holders  of  the  unsecured  debts ;  neither  is 
such  reorganization  void  because  it  requires 


REORGANIZATION,  1. 


4T 


ly  statute 
lilroad  are 
s  a  body 
and  (ran- 
ipany  was 

I  Ala.  2^7, 

mrchascrs 
Efs  in  the 
L'ln  to  dis- 
lic  have  a 
epair  and 
id  and  re- 
r,  and  for 
wn  proper 
they  may 
)usincss  in 
losc  rights 
Forbes,  23 

srizing  the 
d  corpora- 
" new  and 
nstrued  in 
te\.  Maine 
,  Kep.  323. 
32,  entitled 
•sure  of  the 
le  road  was 

II  and  the 
(^ally  oper- 
1884.     Dos- 

L.  R.  Co., 
\  H.  393. 23 

of  railroad 
{holders  is 
rganizing.a 

a  contract 
void,  where 
ithority,  in 
1 ;  and  facts 
ion  of  their 
ers  are  not 
V.  App.  645, 

;  afirming 
2,  mem.,  43 

zation  plan 
rs  of  unse- 
re  preferred 
t  par  for  the 
nd  that  the 
stock  at  a 
t  as  to  the 
neither  is 
ie  it  requires 


ildersof  unsecured  debts  to  contribute 
itftanly  to  the  necessary  expenses  incurred. 
Haticoik  V.  Toledo,  /'.  <S-  IV.  A'.  Co.,  1 1  ffiss, 
{U.  S.)  148,9 Fed.  A'ep.  738.— Distinguish- 
ing Chicago,  R.  I.  &  P.  R.  Co.  v.  How- 
ard./Wall.  (U.S.)  392. 

On  the  foreclosure  of  a  railroad  mortgage 
the  mortgage  trustees  purchased  the  prop- 
erty for  the  benefit  of  the  bondholders.     A 
new  corporation  was  organized,  its  stock 
was  issued  to  such  bondholders  for  unpaid 
interest,  and  they  received  for  their  old 
bonds  new  bonds  secured  by  a  new  mort- 
gage.   The  stock  passed  into  new  hands, 
and   its  holders,  acquiring  control  of  the 
corporation,  brought  this  suit  in  its  name  to 
set  aside  the  new  mortgage,  as  ullra  vires 
in  violation  of  the  constitution  of  the 
Held,  that  the  new  mortgage  was 
.    for  property  actually  received,  and 
the  new  bonds  were  the  consideration  of  the 
conveyance  of  the  property  to  the  new  cor- 
poration, and  the  vendee,  the  new  corpora- 
tion, could  mortgage  the  property  to  secure 
the  purchase  money  ;  that  the  corporation 
could  not  be  allofJed  to  retain  the  property 
and  not  pay  the  purchase  price ;  and  that 
the  bondholders  would  be  entitled  to  pro- 
tection as  having  a  vendor's  lien.     Memphis 
&•  L.  R.  R.  Co.  V.  Dow,  22  Blatchf.  {U,  S.) 
48.  -Quoting  Philadelphia  &  R.  R.  Co.  v. 
Stichter,  21  Am.   Law   Reg.  (N.  S.)  713; 
Piatt  V.  Union  Pac.  R.  Co.,  99  U.  S.  48. 

A  deed  of  trust  on  a  railroad  provided 
that  the  bondholders  should  consent  to  the 
articles  of  incorporation  of  a  new  company 
that  should  buy  the  property,  on  a  reorgan- 
ization, and  this  was  not  changed  by  a  de- 
cree of  sale.  Held,  that  the  deed  of  trust 
and  the  decree  of  sale. must  be  construed 
together,  and  trustees  who  hold  the  property 
will  not  be  required  to  convey  it  to  any  one 
of  three  companies  until  it  appears  that  a 
majority  of  the  bondholders  have  consented 
to  their  articles  of  incorporation.  Farmers' 
L.  5-  T.  Co.  v.  Central R.  Co.,  4  Dill.  {U.  S.) 
546. 

A  company  had  issued  several  series  of 
mortgages,  some  covering  ail  of  its  property 
and  others  not.  The  company  had  a  very 
large  floating  debt,  and  was  in  default  for 
interest  on  all  of  the  mortgages  and  for 
principal  of  a  part,  without  any  possibility 
of  payment  without  a  sale  of  its  property. 
Held,  that  a  consent  decree  foreclosing  all 
the  mortgages  to  enflble  the  company  to  re- 
organize and  extend  its  bonded  indebted- 


ness, and  reduce  the  rate  of  interest,  and 
to  provide  a  means  of  carrying  the  floating 
indebtednes'',  would  not  be  set  aside  at  the 
application  of  some  of  the  bondholders,  be- 
cause the  prini'.ipal  of  some  of  the  mortgages 
was  not  yet  •  i  '^.  Carej^  v.  Houston  &*  T. 
C.R.  Co..  4S  i'ei.'.  Rep.  ^-fi. 

In  such  case  a  proposed  reorganization  by 
which  the  bonded  indebtedness  is  funded  at 
a  reduced  interest,  and  which  allows  each 
stockholder  to  retain  his  stock  on  paying  a 
pro  rata  share  of  the  floating  indebtedness, 
will  not  be  enjoined  at  the  suit  of  certain 
stockholders,  as  an  alleged  fraud  on  them, 
especially  where  they  do  not  suggest  any 
better  way  out  of  the  comtumy's  financial 
embarrassment.  Carey  v.  Houston  &*  T.  C. 
R.  Co.,  41  Fed.  Rep.  438. 

At  the  time  a  plan  of  reorganization  was 
agreed  upon  the  railroad  company  was  in 
the  hands  of  a  receiver,  and  decrees  of  fore- 
closure were  rendered  against  the  company. 
The  stockholders  were  to  surrender  their 
certificates  to  a  committee  of  reorganiza- 
tion, and  the  decrees  of  foreclosure  were 
transferred  to  a  trust  company,  the  creditors 
surrendering  their  claims  and  accepting  in 
lieu  thereof  debentures,  and  the  receiver, 
under  order  of  court,  restored  the  property 
to  the  control  of  the  company.  Held,  that 
the  agreement  for  reorganization  did  not 
contravene  any  statute  of  the  state,  nor  any 
principle  of  public  policy.  Mobile  <S-  O.  R. 
Co.  V.  Nicholas,  57  Am.  &*  Eng.  R.  Cas.  too, 
98  Ala.  92,12  So.  Rep.  723.  —  Quoting 
Hafer  v.  New  York,  L.  E.  &  W.  R.  Co.,  14 
Ohio  W.  L.  Bull.  68. 

A  plan  for  the  reorganization  of  a  railroad, 
by  which  the  bondholders  agree  that  the 
property  shall  be  bought  and  held  in  trust 
for  them,  and  new  bonds  issued  to  a  greater 
amount  than  the  old  bonds,  is  not  void, 
though  there  is  nothing  to  show  that  the 
new  bonds  are  to  be  used  for  corporation 
purposes.  Cushtran  v.  Bonfield,  36  ///. 
App.  436  ;  affirmed  in  139  ///.  219,  28  A'^,  E. 
Rep.  937.— Quoting  Peoria  &  S.  R.  Co.  v. 
Thompson,  103  111.  187. 

And  trustees  who  buy  and  hold  such 
property  for  the  bondholders  cannot  deny 
the  interest  of  any  of  the  bondholders  so 
long  as  they  hold  title  to  the  property. 
Cushman  v.  Bonfield,  36  ///.  App.  436 ; 
affirmed  in  139  ///.  219,  28  N.  E.  Rep.  937. 

Plaintiff  entered  into  a  contract  with  sev- 
eral parties  whereby  he  agreed,  in  considera- 
tion of  $10,000,  to  assign  and  transfer  the 


48 


REORGANIZATION,  2,  3. 


rights  and  franchises  of  two  projected  rail- 
road lines,  of  which  he  was  president,  and, 
upon  the  organization  of  a  new  company, 
to  take  four  tenths  of  its  capital  stock,  and 
to  pay  on  the  first  assessment  $20,000,  the 
other  parties  to  take  balance  of  stock  and 
pay  $30,000.  A  new  company  was  organ- 
ized, including  among  its  members  plaintiff 
and  thice  other  parties  to  the  agreement. 
Articles  of  incorporation  were  adopted,  and 
preliminary  business  transacted.  At  this 
organization  plaintiff  made  no  mention  of 
said  contract,  did  not  ask  its  adoption  or 
ratification,  or  that  it  be  made  the  basis  of 
a  contract  between  them.  At  a  subsequent 
opening  of  subscription  books,  plaintiff  sub- 
scribed for  20oshares,  amounting  to  $20,000, 
to  be  paid  for  in  cash.  He  paid  $10,000,  re- 
ceiving certificates  of  stock  for  that  amount, 
and  brought  suit  for  the  balance  subscribed, 
claiming  to  have  paid  therefor  by  a  transfer 
of  the  franchises  of  his  two  companies. 
Held,  that  the  contract  was  illegal  and  void, 
and  even  if  binding  it  did  not  become  a 
contract  between  plaintiff  and  the  new  com- 
pany, and  he  was  not  thereby  entitled  to 
any  credit  on  his  stock  account  by  virtue 
thereof.  Clarke  v.  Omaha  &*  S.  W.  K.  Co., 
4  Neb.  458. 

2.  Reorganization  by  legislative 
act.— By  Mass.  Act  of  1872,  cli.  342,  the 
charter  of  one  company  was  repealed,  and 
another  company  was  incorporated,  wiiii 
power  to  take  the  tracks  of  the  former 
company  upon  making  compensation.  The 
act  of  1876,  ch.  229,  authorized  certain  rail- 
road corporations  to  hold  stock  in  the  new 
company,  and  provided  that  nothing  in  the 
act  contained  should  be  construed  as  affect- 
ing the  legal  rights  of  the  old  company. 
Held,  that  this  act  could  not  be  construed 
as  a  legislative  recognition  that  the  last- 
named  company  had  at  the  time  an  exist- 
ence or  any  legal  rights.  Thornton  v.  Mar- 
ginal Freight  R.  Co.,  123  Mass.  32. 

An  act  of  the  legislature  which  provides 
that,  in  a  certain  contingency,  the  stock- 
holders of  an  existing  corporation  shall  reor- 
ganize as  a  new  corporation,  which  changes 
the  amount  of  the  capital  stock,  and  pro- 
vides for  the  stockholders  in  the  existing 
corporation  by  reserving  a  certain  amount 
of  the  stock  for  them  in  the  corporation  to 
be  formed,  creates  a  new  corporation,  and 
is  not  an  amendment  to  the  charter  of  the 
one  already  in  existence.  In  such  case  it  is 
immaterial   that  the    new   corporation    is 


called  by  the  same  name  as  the  old  one. 
Marshall  v.  Western  N.  C.  R.  Co.,  20  Am. 
&>  Eng.  R.  Cas.  578,  92  N.  Car.  322. 

Quare  whether  the  legislature  has  power 
to  compel  the  stockholders  in  the  old  cor- 
poration to  reorganize  as  a  new  company  ; 
but  if  they  do  so  voluntarily,  the  new  cor- 
poration is  regularly  and  legally  formed.  In 
such  case,  the  organization  of  a  new  cor- 
poration at  once  dissolves  the  old  one.  If 
there  are  creditors  of  the  dissolved  corpora- 
tion under  these  circumstances,  they  may 
cause  the  property  of  the  defunct  corpora- 
tion to  be  applied  to  their  debts  by  means 
of  a  receiver.  Marshall  v.  Western  N.  C. 
R.  Co.,  20  Am.  &*  Eng.  R.  Cas.  578,  92  N. 
Car.  322. 

Under  the  Pa.  Act  of  April  8,  1861,  pro- 
viding for  the  reorganization  of  corpora- 
tions whose  property  and  franchises  are 
sold  at  judicial  sale,  the  organization  of  the 
corporation,  and  the  selection  of  its  officers, 
are  to  be  done  by  the  purchasers;  but  all 
subsequent  acts  are  to  be  done  by  the  cor- 
poration itself.  Com.  v.  Central  Pass.  R.  Co., 
52  Pa.  St.  506.— Distinguished  in  Metz 
V.  Buffalo,  C.  &  P.  R.  Co.,  58  N.  Y.  61. 

An  act  provided  for  the  reorganization  of 
a  railroad  company,  and, />(/^r<i//a,  directed 
the  issuance  of  certificates  of  stock  to  the 
"  purchiiscrs."  Held,  that  this  conferred 
the  right  to  issue  the  certificates  to  the 
purchasers,  or  to  such  persons  as  they  might 
direct.  Com.  v.  Central  Pass.  R.  Co.,  52  Pa. 
St.  506. 

An  act  for  the  reorganization  of  a  cor- 
poration whose  property  had  been  sold, 
directed  the  purchasers  in  organizing  the 
new  company  to  "  determine  the  amount  of 
the  capital  stock."  Held,  not  to  mean  that 
liiey  should  ascertain  the  actual  cash  value 
put  in  by  the  purchasers  of  the  property ; 
but  that  they  should  determine  the  amount 
of  the  capital  stock  of  the  new  organization, 
and  the  par  value  of  the  shares.  Com.  v. 
Central  Pass.  R.  Co.,  52  Pa.  St.  506. 

3.  Sale  by  purchasers  to  existing 
corporation.— The  provisions  of  N.  Y. 
Railroad  Act  of  1854,  as  amended,  author- 
izing the  purchasers  on  foreclosure  sale  of 
the  property  and  franchise  of  a  railroad  to 
organise  a  new  corporation,  do  not  prevent 
a  sale  or  transfer  by  such  a  purchaser  to  a 
corporation  already  existing  and  capable  of 
holding  the  property  and  exercising  the 
franchises  ;  the  authority  so  given  by  said 
provisions  was  intended  to  meet  a  case 


REORGANIZATION,  4. 


49 


where  there  is  no  such  existing  corporation. 
It  is  not  essential  for  the  purchasing  com- 
pany to  file  a  map  of  the  line  thus  acquired 
where  it  is  already  constructed.  People  v. 
Brooklyn,  F.  ^  C.  I.  R,  Co.,  9  Am.  &*  Eng. 
R.  Cas.  454,  89  N.  K.  75 ;  affirming  24  Hun 
529,  mem. 

A  contract  ,by  which  bondholders  agree 
to  buy  in  railroad  property  at  a  foreclo- 
sure sale,  and  to  transfer  it  to  a  new 
company,  of  which  one  of  the  bondhold- 
ers is  a  director,  the  road  to  be  used  in 
connection  with  the  road  of  the  purchasing 
company,  i"^  not  such  a  contract  as  is  pro- 
vided for  by  N.  Y.  Act  of  1873,  ch.  710, 
which  authorizes  the  purchaser  uf  railroad 
property,  sold  under  a  mortgage  or  decree, 
to  associate  with  him  other  persons  and 
form  a  new  corporation  to  maintain  and 
operate  the  road.  Munson  v.  Syracuse,  G. 
&•  C.  K.  Co.,  29  Am.  &*  Eng.  R.  Cas.  377, 
103  .V.  V.  58.  8  iV.  E.  Rep.  355.  7  N.  Y.  S 
R.  863.— Reviewing  Aberdeen  R.  Co.  v. 
Blakie,  2  Eq.  R.  1281. 

4.  Rights  auil  reiiirdies  of  stock- 
holders.'*'— (i)  In  general. — There  is  no 
priority  between  holders  of  reissued  certifi- 
cates of  preferred  stock  in  a  railroad,  and  a 
new  company  organized  by  purchasers  of 
the  road  at  a  second  mortgage  foreclosure 
.sale,  nor  between  said  certificate  holders 
and  creditors  of  the  old  company,  so  that 
they  can  maintain  a  bill  against  either. 
Sullivan  v.  Portland  &•  K.  R.  Co.,  94  U.  S. 
806,  16  Am.  Ry.  Rep.  181 ;  affirming  4  Cliff. 
212. 

Where  the  legal  rate  of  interest  is  six  per 
cent.,  holders  of  certificates  of  stock  by 
which  the  corporation  agrees  to  pay  ten  per 
cent,  cannot  maintain  a  bill  to  set  aside  a 
foreclosure  sale  after  a  reorganization,  and 
to  recover  an  additional  four  per  cent,  after 
the  legal  rate  has  been  paid.  Sullivan  v. 
Portland  &*  K.  R.  Co.,  4  Cliff.  (17.  S.)  212  ; 
affirmed  in  94  U.  S.  806, 16  Am.  Ry.  Rep.  iSi. 

A  large  number  of  certificates  of  stock 
was  placed  in  the  hands  of  agents  to  be 
transferred  to  and  registered  in  their  names, 
which  was  revocable  at  the  will  of  the 
grantor.  The  petitioner  claimed  to  stand 
in  the  place  of  original  grantors.  Held, 
that  this  only  enabled  him  to  revoke  the 
power  in  respect  to  the  identical  certificates 

*  New  company  cannot  sell  out  without  the 
consent  of  dissenting  shareholders.  Rights  of 
bondholders  with  notice,  see  24  Am.  &  Eng.  R. 
Cas.  199,  aistr. 

7  D.  R.  D.— 4 


which  the  original  grantor  had  put  into  the 
hands  of  the  agents,  or  in  respect  to  certifi- 
cates representing  the  original  ones.  Erie 
R.  Co.  v.  Heat/t,  9  Blatchf.  (U.  S.)  226. 

Where  each  of  such  certiticates  bears  a 
number,  it  is  to  be  supposed  that  the  partic- 
ular certificates  which  each  grantor  placed 
in  the  hands  of  the  agents  can  be  identified ; 
but  whether  this  be  so  or  not  any  person 
who  can  identify  the  certificates  he  depos- 
ited is  entitled  to  call  upon  the  agents  (or 
such  certificates,  and  to  claim  that  no  one 
else  shall  call  upon  them  for  such  certifi- 
cates. Erie  R.  Co.  v.  Heath,  9  Blatchf.  {U, 
S.)  226. 

Trustees  were  appointed  to  buy  in  rail- 
road property  at  a  foreclosure  for  the  bene- 
fit of  the  creditors  and  stockholders,  with 
a  view  of  reorganizing,  with  the  agreement 
that  such  trustees  were  to  issue  certificates 
of  stock  in  the  new  company  to  such  cred- 
itors and  stockholders,  "to  be  and  remain  a 
first  claim  upon  the  property  of  the  corpo- 
ration after  its  indebtedness."  Held,  that 
this  referred  both  to  existing  and  future  in- 
debtedness, and  that  such  stockholders  had 
no  prior  lien  over  subsequent  mortgage 
creditors.  King  v.  Ohio  &*  M,  R.  Co.,  9 
Biss.{U.  5.)  278. 

Where,  upon  the  eve  of  foreclosure  under 
a  consolidated  trust  deed,  a  plan  for  pur- 
cli^isc  and  reorganization  was  drafted  by  a 
committee  of  the  consolidated  bondholders, 
providing  that  the  old  stock  should  be  de- 
posited, and  that  the  new  company  should 
issue  first  mortgage  bonds  bearing  six  per 
cent,  interest,  to  be  used  only  to  fund  the 
past-due  and  maturing  interest  on  the  prior 
bonds,  and  for  permanent  construction  and 
improvement ;  the  par  value  of  outstanding 
consolidated  bonds  to  be  represented  by 
preferred  seven  per  cent,  stock,  and  the  out- 
standing common  stock  to  be  represented  by 
common  stock ;  holders  of  common  stock 
not  to  be  entitled  to  shares  or  to  vote 
until  preferred  stock  had  been  paid  seven 
successive  annual  dividends  of  seven  per 
cent.,  and  the  property  was  paid  in  and  a 
reincorporation  effected  on  this  basis,  the 
new  charter  providing  that  the  funds  appli- 
cable to  the  payment  of  dividends  on  pre- 
ferred stock  was  the  net  income  after  paying 
interest  on  prior  bonds,  expenses  and  equip- 
ments, etc.,  any  surplus  after  paying  seven 
per  cent,  to  stand  over  until  next  dividend 
day ;  and  at  the  first  meeting  of  the  new 
board  a  resolution  was  passed  to  the  effect 


50 


REORGANIZATION,  4. 


I 


Iff 


that  under  operating  expenses  only  such 
improvements  and  additions  should  be  In- 
cluded as  were  necessary  to  keep  the  prop- 
erty efficient,  and  that  all  beyond  this 
should  be  provided  for  out  of  funds  other 
than  net  earnings  — the  directors  were 
bound  by  the  provisions  of  the  agreement 
and  by  their  charter  as  interpreted  by  the 
resolution  and  the  common  stock,  and  the 
common  stockholder  was  entitled  to  repre- 
sentation upon  its  being  made  to  appear 
that  the  earnings  and  income  which  had 
been  wrongfully  converted  to  pay  for  im- 
provements and  extensions  would,  if  applied 
to  dividends,  be  sufficient  to  pay  five  suc- 
cessive dividends  of  seven  per  cent,  each 
on  the  preferred  stock.  Mackintosh  v.  Flint 
6-  P.  M.  R.  Co.,  36  Am.  &•  Eng.  R.  Cas. 
340,  34  Fed.  Rep.  582.— Applying  St.  John 
V.  Erie  R.  Co.,  22  Wall.  (U.  S.)  149;  Ryan 
V.  Leavenworth,  A.  &  N.  W.  R.  Co.,  2t 
Kan.  365.  Distinguishing  New  York,  L. 
E.  &  W.  R.  Co.  V.  Nickals,  119  U.  S.  296,  7 
Sup.  Ct.  Rep.  209.  Following  Memphis 
&  L.  R.  R.  Co.  V.  Dow,  120  U.  S.  287,  7 
Sup.  Ct.  Rep.  482.  Quoting  Sage  v.  Cen- 
tral R.  Co.,  99  U.  S.  343. 

Where,  pursuant  to  an  agreement  for  pur- 
chase and  reorganization  of  a  railroad  com- 
pany which  was  about  to  be  foreclosed  under  a 
consolidated  deed  of  trust,  the  company  con- 
veyed to  the  trustees  of  the  separate  mort- 
gage of  its  land  grant  all  its  equities  in  trust 
to  pay  all  lien;  on  the  lands  and  to  turn  in 
the  balance  to  the  trustees,  and  upon  the  sale 
of  the  property  under  such  last  trust,  and  its 
being  paid  in  by  the  purchasing  committee, 
these  equities  passed  with  it,  and  the  trus- 
tees paid  all  except  one  of  the  liens  for 
$300,000,  partly  secured  on  other  property, 
for  which  charge  for  a  period  of  five  years 
they  had  on  hand  fourfold  security— AcA/, 
that  as  between  preferred  and  common 
stock,  the  latter  of  which  was,  under  the 
charter,  to  be  debarred  from  participating 
until  the  former  had  been  paid  successive 
dividends  of  seven  per  cent,  during  those 
five  years,  the  surplus  after  providing  for 
the  security  of  the  $300,000  lien,  as  well  as 
the  premiums  received  by  the  company  on 
first  mortgage  bonds  issued  and  sold  by  it, 
was  to  be  applied  to  dividends.  Mackintosh 
V.  Flint  6-  P.  M.  R.  Co.,  36  Am.  «S-  Eng. 
X.  Cas.  340,  34  Fed.  Rep.  582. 

In  such  case  a  steel-rail  betterment  as 
well  as  money  spent  on  steamers  owned  by 
the  company  to  make  them  more  efficient, 


and  money  borrowed  and  expended  in  the 
purchase  of  new  freight  engines  and  coal 
cars,  should  not  be  charged  to  operating  ex- 
penses ;  and  in  the  event  of  no  depreciation 
account  being  kept,  the  expense  account 
should  not  be  charged  with  an  estimated 
depreciation,  where  the  money  so  charged 
was  not  actually  spent  upon  repairs.  Mack- 
intosh v.  Flint  <S-  P.  M.  R.  Co.,  36  Am.  &» 
Eng.  R.  Cas.  340,  34  Fed.  Rep.  582. 

Where  stock  of  an  expiring  corporation 
merged  into  the  stock  of  a  new  one  organ- 
ized  as  its  successor,  acquiring  its  franchises 
and  assuming  its  obligations,  a  provision  in- 
serted in  the  charter  of  the  new  company, 
forfeiting  dividends  not  claimed  within 
three  years  from  the  time  when  declared,  is 
not  binding  upon  the  old  stockholders  ex- 
cept from  the  time  when,  expressly  or  by 
implication,  they  consent  thereto  by  assum- 
ing the  quality  of  stockholders  in  the  itew 
company.  Armant  v.  New  Orleans  &*  C.  R. 
Co.,  41  La.  Ann.  1020,  7  So.  Rep.  35. 

(2)  In  New  York.  —  Plaintiff,  a  stock- 
holder in  a  railroad  company,  filed  a  com- 
plaint alleging  that,  the  property  of  the 
company  had  been  sold  under  a  foreclosure 
decree,  and  was  bid  in  by  a  committee  of 
bondholders;  that  a  portion  of  the  bond- 
holders disputed  the  validity  of  the  sale  and 
litigation  arose  which  resulted  in  an  arrange- 
ment by  which  the  stockholders  withdrew 
all  opposition  and  were  accorded  the  right 
to  take  stock  in  a  new  company  to  be  or- 
ganized, but  that  the  option  to  do  so  was  to 
be  exercised  in  thirty  days ;  and  that  plaintifl 
had  no  knowledge  of  the  agreement  until 
afterthe  expiration  ofthethirtydays,when  he 
tendered  performance  on  his  part  and  de- 
manded new  stock.  Held,  that  a  demurrer 
to  the  complaint  was  properly  sustained. 
If  the  foreclosure  sale  was  valid,  all  of  plain- 
tiff's legal  rights  were  cut  off ;  and  if  invalid, 
his  right  to  attack  it  was  not  affected  or  im- 
paired by  the  agreement,  unless  he  elected 
to  come  in  and  ratify  it,  in  which  case  he 
was  bound  to  adopt  it  and  could  not  vary  its 
terms.  Thornton  v.  IVabash  R.  Co.,ii  N. 
Y.  462. 

N.  Y.  Act  of  1853,  ch.  502,  §  2,  which  pro- 
vides that  a  stockholder  of  a  railroad  com- 
pany may,  within  six  months  after  a  sale  of 
its  road  under  foreclosure,  on  paying  to  the 
purchaser  a  proportion  of  the  price  paid 
equal  to  the  proportion  his  share  bears  to 
the  whole  stock  of  the  company,  be  entitled 
to  have  the  same  relative  amount  of  stock 


REORGANIZATION,  6. 


51 


ded  in  the 
I  and  coal 
erating  ex- 
spreciation 
e  account 
estimated 
;o  charged 
rs.  Mack- 
36  Am.  &* 

52. 

orporation 
ane  organ- 
,  franchises 
ovision  in- 
t  company, 
ed  within 
declared,  is 
lolders  ex- 
:ssly  or  by 
by  assum- 
in  the  itew 
ms  6-  C.  R. 

35- 

T,  a  stock- 
led  a  com- 
rty  of  the 
foreclosure 
mmittee  of 

the  bond- 
he  sale  and 
an  arrange- 
s  withdrew 
d  the  right 
y  to  be  or- 
o  so  was  to 
lat  plaintif! 
iment  until 
lys.when  he 
irt  and  de- 
a  demurrer 

sustained, 
all  of  plain- 
d  if  invalid, 
icted  or  im- 

he  elected 
ch  case  he 
not  vary  its 
.  Co.,  81  N. 

which  pro- 
Iroad  com- 
er a  sale  of 
,ying  to  the 
price  paid 
re  bears  to 
be  entitled 
nt  of  stock 


or  interest  in  the  company  or  property,  was 
repealed  by  the  act  of  1854.  amending  the 
general  railroad  law  of  1850,  and  by  the  act 
of  1874,  ch.  430,  entitled  an  act  "  to  facilitate 
the  reorganization  of  railroads  sold  under 
njortgages."  Pratt  v.  Munson,  84  N.  Y.  582. 

Where  the  property  and  franchises  of  a 
railroad  corporation  are  purchased  on  fore- 
closure sale  in  pursuance  of  a  plan  for  the 
readjustment  of  the  respective  interests 
of  the  mortgage  creditors  and  stockholders 
as  authorized  and  provided  for  by  the  "  act 
to  facilitate  the  reorganization  of  railroads 
sold  under  mortgage,"  the  foreclosure  be- 
comes absolute  against  the  corporation, 
and  all  its  rights  and  the  proprietary  in- 
terests of  tiie  stockholders  are  as  absolutely 
barred  and  cut  off  as  if  the  purchasers  had 
purchased  for  themselves.  The  plan  has 
reference  only  to  the  new  corporation  to  be 
formed  and  to  interests  therein.  Vatable 
V.  New  York,  L.  E.  &>  tV.  R.  Co.,  17  Am. 
&•  Eng.  R.  Cas.  268,  96  N.  Y.  49;  reversing 
31  I/un  y6,  mem.,  which  affirmed  11  Abb. 
N.  Cas.  133,  9  Abb.  N.  Cas.  271.— Followed 
IN  Carpenter  v.  New  York,  L.  E.  &  W.  P. 
Co.,  99  N.  Y.  607. 

While,  therefore,  the  stockholder  has  the 
right  under  said  act  (section  3)  to  assent  to  the 
plan  "  at  any  time  within  six  months  "  after 
the  organization  of  the  new  company,  and 
by  complying  with  the  terms  and  conditions 
becomes  "  entitled  to  his  pro  rata  benefit 
therein,"  it  is  a  condition  precedent  that  he 
must  signify  his  assent  within  the  time 
specified  ;  if  he  fails  so  to  do,  he  forfeits  the 
right,  and  against  such  a  forfeiture  the 
courts  can  give  no  relief.  Vatable  v.  New 
York,  L.  E.  <S-  IV.  R.  Co.,  17  Am.  &*  Eng. 
R.  Cas.  268,  96  A^.  Y.  49 ;  reversing  31  Hun 
^16,  mem.,  which  affirmed  11  Abb.  N.  Cas. 
'33.  9  Al>l>-  ^-  Cas.  271. —  Followed  in 
Carpenter  v.  New  York,  L.  E.  &  W.  R.  Co., 
99  N.  Y.  607.  Reviewed  in  Hoopes  v. 
Corbin,  i  N.  Y.  S.  R.  212. 

Defendant,  who  had  purchased  property 
of  a  railway  company  on  foreclosure,  pub- 
lislied  an  offer  to  exchange  stock  in  a  new 
company  for  stock  in  the  old  company,  if  the 
same  should  be  deposited  before  a  date 
named,  with  a  transfer  and  power  of  at- 
torney signed  in  blank  thereon,  with  a  cer- 
tain trust  company  which  would  issue 
receipts  therefor.  Plaintiff,  who  had  a  cer- 
tificate for  stock  in  the  old  company  pre- 
sented it  to  the  trust  company,  which 
declined  to  take  it  on  the  ground  that  it  was 


not  good.  Held,  that  plaintiff  having  done 
nothing  until  after  the  expiration  of  the 
time  mentioned  in  the  offer  could  not  main- 
tain an  action  for  breach  of  an  expressed  con- 
tract. Schorestene  v.  Iselin,  69  Hun  (N.  Y.) 
250. 

Where  there  is  nothing  unlawful  about  a 
plan  for  the  reorganization  of  a  railroad,  a 
stockholder  who  acquires  his  stock  from 
one  who  was  present  when  the  plan  was 
made  and  voted  for  it,  cannot  insist  on  the 
plan  as  ultra  vires,  or  ask  for  an  injunction 
to  restrain  carrying  it  out.  Hollins  v.  St, 
Paul,  M.  &•  M.  R.  Co.,  29  N.  Y.  S.  R.  208, 9 
N.  Y.  Supp.  909. 

Certain  stockholders  filed  a  bill  to  vacate 
a  foreclosure,  and  to  set  aside  an  agreement 
to  reorganize  a  railroad  company,  on  the 
ground  that  an  assessment  fixed  by  a  trust 
company  to  be  paid  by  the  old  stockholders, 
as  a  condition  for  obtaining  stock  in  the 
new  company,  was  excessive ;  but  it  appeared 
that  the  trust  company  had  the  power  to  fix 
the  assessment,  and  there  was  no  charge  of 
bad  faith  or  a  lack  of  vigilance ;  but,  on 
the  other  hand,  the  president  of  the  trust 
company  made  an  affidavit  that  the  assess- 
ment was  made  only  after  a  thorough  inves- 
tigation into  the  matters.  Held,  that  the 
plaintiffs  were  not  entitled  to  an  injunction 
to  restrain  an  issue  of  new  stock.  Gem- 
sheim  v.  Olcott,  31  iV.  Y.  S.  R.  ^zi.ioN.  Y. 
Supp.  438  ;  reversing  7  N.  Y.  Supp.  872. 

5. payments  on  account  of  stock. 

— The  property  and  franchises  of  a  company 
were  purchased  on  foreclosure  sale  by  cer- 
tain trustees  in  pursuance  of  a  plan  which, 
after  providing  for  the  organization  of  a 
new  company  and  the  transfer  to  it  of  the 
property  purchased,  prescribed  the  terms 
and  conditions  upon  which  the  old  stock- 
holders could  become  stockholders  in  the 
new  company.  Among  other  things  they 
were  required  to  make  certain  payments 
upon  their  stock  in  the  old  company  before 
they  could  exchange  it  for  the  new  stock, 
which  payments  were  required  to  be  made 
"before  the  expiration  of  such  time  as  may 
be  lawfully  limited  by  the  parties."  A  time 
was  fixed  which  was  more  than  six  months 
after  the  organization  of  the  new  company, 
and  notice  thereof  was  given  by  publication 
in  many  newspapers  in  this  and  other 
countries,  fn  actions  brought  by  stock- 
holders in  the  old  company,  who  failed  to 
make  payments  as  prescribed  within  the 
time  so  fixed,  to  be  allowed  to  come  in  and 


6S 


REORGANIZATION,  O. 


to  become  stockholders  in  the  new  company, 
and  who  claimed  that  they  had  received  no 
notice  of  the  time  fixed— //*/</,  that  the 
plaintiffs  were  chargeable  with  notice  of  the 
law  securing  them  the  right  to  assent  within 
six  months,  and  also  with  the  general 
features  of  the  scheme  of  readjustment  of 
interests,  as  they  were  embodied  in  the  arti- 
cles filed  for  the  organization  of  the  new 
company;  that  the  projectors  of  the  plan 
were  not  bound  to  provide  for  any  notice  ; 
that  the  plan  contained  no  provision  for 
notice,  and  none  could  be  implied,  it  being 
left  simply  to  the  discretion  of  the  trustees 
whether  or  not  to  give  any  notice  ;  and. 
therefore,  that  plaintiffs  had  no  right  of  ac- 
tion. Vatable  v.  New  York,  L.  E.  &*  W.  R. 
Co.,  17  Am.  6-  Ettg.  R.  Cas.  268,  96  N.  Y. 
49;  reversing  31  Hun  316,  mem.,  which  af- 
firmed II  Abb.  N.  Cas.  133.  9  Abb.  N.  Cas. 
271.  —  For.LUWKD  IN  Carpen.er  v.  New 
York.  L.  E.  &  W.  R.  Co.,  99  N.  Y.  607. 

//  seems,  that  assuming  that  the  plan  re- 
quired the  trustees  to  give  notice  of  the 
time  fixed,  no  actual  notice  served  upon  all 
the  stockholders  could  have  been  intended 
and    none    such  was    requisite;    and   that 
notice  L.    publication,  such  as  was  given, 
was  sufficient.     Vatable  v.  New  York,  L.  E. 
6-  IV .  R.  Co.,  17  Am.  &•  Eng.R.  Cas.  268, 
96  A'.  Y.  49;  reversitig  31  Hun  316,  mem., 
which  affirmed  11  Abb.  N.  Cas.  133.  ^  Abb. 
N.  Cas.  271.— Followed  in  Carpenter  v. 
New  York.  L.  E.  &  W.  R.  Co..  99  N.  Y.  607. 
A  trust  company  was  acting  as  agent  in 
the  reorganization  of  a  railroad,  and  its  offi- 
cers made  an  assessment,  in  pursuance  of 
the  plan  of  reorganization  on   the    stock- 
holders of  the  old  company,  but  the  assess- 
ment was  invalid  because  not  authorized  by 
the  directors  of  tlie  trust  company.     Held, 
that  the  power  of  the   trust  company  to 
make  a  future  assessment  would  not  be  af- 
fected   by  this    unauthorized    assessment. 
Gernsheim  v.  Central  Trust  Co.,  16  A^.  Y. 
Supp.  127, 61  Hun  625,  mem.,  40  A'.  Y.  S.  R. 
967. 

A  reorganization  committee  purchased 
railroad  property  at  a  foreclosure,  under  an 
agreement  made  by  the  bondholders,  which 
empowered  tiie  committee  to  give  the  old 
stockholders  privilege  of  exchanging  their 
stock  for  stock  in  the  new  company,  on  the 
payment  of  certain  assessments ,  but  if  such 
stockholders  declined  or  failed  to  pay  such 
assessments,  the  privilege  of  receiving  new 
Stock  should  be  cut  ofi,  and  it  should  be 


ratably  distributed  among  others  who  had 
paid  their  assessments,  or  if  they  did  not 
accept,  that  it  might  be  allotted  by  the  com- 
mittee to  other  persons  willing  to  make  the 
payments.  Held,  that  a  failure  to  pay  the 
assessments  terminated  the  rights  of  the 
stockholders,  and  no  action  on  the  part  of 
the  committee  was  necessary  to  terminate 
such  rights,  and  immediately  the  rights  of 
others  intervened,  which  the  committee 
could  not  ignore.  Dow  v.  lotva  C.  R.  Co., 
70  Hun  186.  S3  A^.  Y.  S.  R.  898,  24  A'.  Y. 
Supp.  292  ;  affirmed  in  144  A^.  Y.  426,  39  N. 
E.  Rep.  398. 

Piaintifl,  a  complaining  stockholder,  al- 
leged that  the  committee  received  assess- 
ments as  late  as  the  date  when  the  plaintiff 
tendered  his  assessments  upon  the  stock 
which  he  represented  ;  but  it  appeared  that 
notes  for  these  assessments  had  been  given 
at  a  prior  time,  which  the  committee  had 
accepted.  Held,  that  the  question  whether 
the  committee  had  a  right  to  accept  the 
notes,  or  not,  could  not  be  considered, 
where  plaintiff  did  not  tender  his  assess- 
ments in  time.  Even  if  the  committee  did 
wrong  in  accepting  the  notes,  a  court  would 
not  compel  it  to  do  wrong  again  in  accept- 
ing plaintiff's  payments  after  the  time. 
Dow  v.  lo^va  C.  R.  Co.,  70  Hun  186,  53  A'^. 
Y.  S.  R.  898,  24  A^.  Y.  Supp.  292 ;  affirmed 
in  144  A^.  Y.  426.  39  A^.  E.  Rep.  398. 

6. cauccllation  of  uupald  siib- 

scriptioiiii.— Ind.  Rev.  St.  of  1881,  §394$ 
et  seg.,  entitled  "  An  act  to  authorize  the 
sale  of  railroads,  to  enable  purchasers  of  the 
same  to  form  corporations,  and  to  exercise 
corporate  powers,"  provides  that,  in  a  case 
of  a  foreclosure  sale  of  any  railroad,  the 
purchaser  may  form  a  corporation  with 
power  to  operate  the  road.  Section  3947 
provides  that  such  purchasing  corporation 
shall  possess  all  the  powers,  rights,  etc., 
which  were  possessed  by  the  vendor  com- 
pany, and  shall  have  power,  at  any  time 
after  the  formation  of  the  corporation,  to 
assume  any  debts  and  liabilities  of  the  for- 
mer corporation,  and  to  make  such  adjust- 
ment and  settlement  with  any  stockholder 
or  creditor  as  may  be  deemed  expedient, 
provided  that  all  subscribers  to  the  original 
stock  shall  be  released  from  all  unpaid  sub- 
scriptions which  shall  not  have  been  pre- 
viously settled  or  arranged  by  agreement  or 
compromise.  Held,  that  it  was  intended  to 
protect  subscribers  by  canceling  all  obliga- 
tions to  pay  unpaid  subscriptions  to  such 


REORGANIZATION,  7. 


53 


stock  in  all  cases  where  there  shall  not  have 
been  an  adjustment  by  agreement  or  com- 
promise. Hamilton  County  Com'rs  v.  State, 
36  Am.  (S-  Eng  R.  Cas.  210,  115  Ind.  64,  4 
N.  E.  Rep.  589,  17  N.  E.  Rep,  855. 

That  act  was  not  intended  to  subserve 
any  mere  temporary  purposes,  its  terms 
being  general,  and  applicable  to  all  pur- 
poses arising  subsequently  to  ^ts  passage. 
The  proviso  protects  all  subscribers  to  stock 
in  railway  companies,  although  at  the  time 
of  its  passage  there  was  no  law  authorizing 
municipal  corporations  to  vote  aid  and  be- 
come stockholders  in  railway  companies. 
Hamilton  County  Com'rs  v.  State,  36  Am. 
Sr*  Eng.  R.  Cas.  210.  115  Ind.  64.  4  N.  E. 
Rep.  589,  i7iV.£.  AV/.  855. 

7.  Bights  of  bondholders— Deposit 
of  bonds.  —  ( I )  In  general.  —  A  plan  for 
reorganization  of  a  railroad  company,  sold 
under  a  foreclosure,  provided  that  certain 
bondholders  might  come  in  and  share  in  the 
property,  which  otherwise  would  have  been 
cut  ofl.  Held,  that  ihey  thereby  acquired 
rights  which  a  court  of  equity  would  pro- 
tect.    Riker  v.  Alsop,  27  Fed.  Rep.  251. 

Upon  the  reorganization  of  a  railroad  cor- 
poration by  mortgage  bondholders  after 
foreclosure,  some  of  the  bondholders  can 
restrain  the  issue  to  another  of  more  shares 
than  he  is  entitled  to,  which  have  been 
voted  to  him,  although  there  is  no  overissue 
of  bonds  under  the  mortgage.  Lincoln 
Nat.  Bank  v.  Portland,  43  Am.  iS-  Eng.  R, 
Cas.  463,  82  Me.  99,  19  At  I.  Rep.  102. 

A  railroad  mortgage  provided  for  the  or- 
ganization of  a  new  company,  if  the  mort- 
gage was  foreclosed,  the  new  company  to 
have  the  same  amount  of  capital  stock  as 
the  mortgage  debt,  to  be  composed  of  the 
bondholders,  who  were  to  receive  stock  in 
the  new  company  in  exchange  for  their 
bonds,  at  the  rate  of  ten  shares  for  each 
$1000  bond.  Before  a  foreclosure  another 
company  guaranteed  the  interest  on  a  por- 
tion of  these  bonds,  and  purchased  some  of 
them  below  par,  but  reissued  them  with  the 
above  guaranty  ;  after  which  the  company 
issuing  the  bonds  agreed  that  interest  thus 
guaranteed  and  paid  should  constitute  a 
lien  on  the  company's  property.  Held,  that 
the  holders  of  interest  warrants  or  coupons 
were  not  entitled  to  stock  under  the  above 
plan  for  reorganization.  Child  v.  New 
York  &^  N.  E.  R.  Co.,  2  Am.  &*  Eng.  R.  Cas. 
329,  12^  Mass  17 
A  committee  to  represent   and    protect 


bondholders  in  the  sale  of  a  railroad  and  in 
the    reorganization  of   the    company,  ad- 
dressed a  circular  to  the  bondholders  call- 
ing upon  them  to  deposit  their  bonds  with 
a  certain  trust  company  and  to  pay  certain 
assessments  tu  meet  expenses  of  the  sale 
and  reorganization.     Plaintiff  offered  to  de- 
posit her  bonds  and  assessment,  but  the 
trust  company  refused  to  receive  them,  and 
referred  her  to  the  committee,  whose  secre- 
tary  took  the  bonds  and  assessment,  and 
gave  the  committee's  receipt  therefor,  which 
he  delivered  to  the  trust  company  and  took 
a  receipt  in  his  own  name.     After  the  reor- 
ganization was  effected  the  trust  company 
refused  to  recognize  the  receipt  or  to  return 
the  bonds,  or  issue  new  ones  in  their  place, 
claiming  that  the  bonds  were  not  deposited 
by  her  with  the  trust  company.    Held,  that 
she  was  entitled  to  relief.      Hitchcock  v. 
Midland  R.  Co.,  i  Am.  &*  Eng.  R.  Cas.  220, 
33  N.  J.  Eq.  86 ;  affirmed  in  34  A^.  /.  Eq.  278. 
Certain  persons  projected  the  formation 
of  a  new  railroad  company,  founded  on  a 
foreclosure  sale  of  a  company  already  exist- 
ing, and  published  a  scheme  of  reorganiza- 
tion and  it  directed  the  holders  of  first  mort- 
gage bonds,  who  wished  to  join  in  such  re- 
organization, to  deposit  their  bonds  with 
a  trust  company,  and  appointed  a  perma- 
nent committee,  having  a  president  and  sec- 
retary, with  a  place  of  business.    A  bond- 
holder presented   his  bond    to    the    trust 
company,  but,  on  account  of  some  irregu- 
larity, was  referred  to  the  committee.     The 
president  and  secretary  of  such  committee 
accepted  the  bond.     Held,  that  such  ac- 
ceptance bound  the  new  company,  the  com- 
mittee having  been  held  out  to  the  public 
as  its  general  agent  in  the  business  of  or- 
ganizing the   new  company.    Midland  R. 
Co.  v.  Hitchcock,  14  Am.  &*  Eng,  R.  Cas. 
598,  37  A^.  /.  Eq.  549. 

Where  a  railroad  corporation  reorganizes 
under  Ohio  Act  of  April  11,  i86i,and.  inthe 
agreement  therefor,  it  is  stipulated  that 
certain  bonds  of  the  original  corporation 
shall  be  assumed  by  the  new  company,  and 
the  holder  thereof  entitled  to  vote  at  all 
meetings  of  stockholders,  upon  conditions 
specified,  which  he  performs,  the  new  com- 
pany becomes  liable  to  pay  the  bonds,  and 
the  holder  thereof  entitled  to  vote,  without 
further  action  on  the  part  of  the  new  com- 
pany. State  ex  rel.  v.  McDaniel,  22  Ohio 
^t.  354. 

An  executory  agreement  to  sell  and  de- 


w 


54 


REORGANIZATION,  8,9. 


liver  such  bonds  to  the  new  corporation, 
subject  to  the  ratification  of  its  directors 
and  stocicholders,  does  not  divest  the  holder 
of  his  title,  nor  deprive  him  of  the  privilege 
of  voting,  until  such  ratification.  S/aie  ex 
rel,  V.  Mc Daniel,  22  Ohio  St.  354. 

(2)  In  New  K<»r>{'.— Defendant  and  others 
had  been  a  committee  of  the  bondholders 
of  a  company  to  effect  a  reorganization ; 
failing  in  this,  they,  acting  for  themselves 
and  the  owners  of  the  bonds  in  their  hands, 
entered  into  a  contract  with  defendant  by 
which  they  agreed  to  sell,  and  he  to  pur- 
chase, the  bonds  of  the  company  at  fifty 
cents  on  a  dollar  for  the  first  mortgage  land* 
grant  bonds,  one  third  cash,  the  balance 
"  in  satisfactory  paper."  It  was  further 
agreed  that  all  holders  of  said  bonds,  who 
had  registered  tiiem,  should  have  the  op- 
tion of  accepting  the  same  price  »nd  terms. 
In  an  action  upon  the  contract  by  plaintifl, 
who  held  some  of  the  bonds  but  who  was 
not  one  of  the  parties  to  the  agreement — 
held,  that  defendant  did  not  agree  to  pur- 
chase of  eacli  bondholder,  nor  to  pay  to 
each  the  purchase  price,  but  to  purchase  of 
and  to  pay  defendant  and  others,  the  par- 
ties named  in  the  contract,  and  through 
them  only  could  the  option  given  to  other 
bondholders  be  consummated ;  that  the 
agreement  of  defendant  was,  in  substance, 
to  purchase  of  the  other  parties  to  the  con- 
tract the  bonds  they  then  held  as  agents  or 
otherwise,  and  all  that  they  might  there- 
after obtain  by  the  acceptance  on  the  part 
of  the  holders  of  the  option  named  ;  and 
that,  therefore,  plaintill  could  not  recover. 
Johnson  v.  Mori^an,  68  ;V.  Y.  494. 

Where  bondiiolders  and  other  creditors  of 
a  company  agree  to  purchase  the  road  at  a 
sale  and  organize  a  new  company,  and  to 
surrender  their  bonds  for  bonds  to  be  issued 
by  the  new  company,  a  bondholder  who  has 
signed  the  agreement,  but  fails  to  surrender 
his  bonds  upon  notice  until  after  the  road 
is  purchased  and  the  new  company  formed, 
cannot  insist  on  receiving  new  bonds. 
Carpenter  v.  Catlin,  44  Bari.  (N.  V.)  75,  29 
How.  Pr.  423. 

The  contract  in  such  case  does  not  re- 
quire a  personal  demand  upon  stockholders 
to  surrender  their  bonds.  Held,  that  a 
written  notice  requesting  a  deposit  of  the 
bonds  before  a  certain  day  is  a  sufficient 
demand.  Carpenter  v.  Catlin,  44  Barb.  (N. 
y-)  75.  29  How.  Pr.  423. 
The  plan  for  the  reorganizatio'^  of  a  rail- 


road company  provided  for  the  surrender  of 
outstanding  bonds  to  a  committee,  and  new 
ones  to  be  issued  in  their  stead,  and  further 
provided  that  if  the  plan  of  reorganization 
was  changed  then  any  bondholder  might 
withdraw  his  bonds  upon  "  payment  of  his 
share  of  expenses  therein  incurred  in  car- 
rying out  the  agreement."  Held,  that  in 
the  event  of  a  change  in  the  plan  of  reor- 
ganization, a  bondholder  had  a  right  to 
withdraw  his  bonds  upon  payment  of  ex- 
penses up  to  the  time  of  giving  notice  of  his 
intention  to  withdraw,  and  he  was  further 
entitled  to  an  injunction  to  restrain  the 
committee  from  further  dealing  with  the 
bonds.  Kennedy  v.  Kennedy,  70  Hun  257, 
24  N.  V.  Supp.  424. 

8.  Bondholder,  when  entitled  to 
an  account.— After  the  property  of  a  rail- 
road company  had  been  sold,  and  a  new 
company  organized,  a  holder  of  bonds  in  the 
old  company,  which  were  not  surrendered 
in  the  reorganization,  filed  a  bill  against 
both  companies  for  an  account.  Held, 
that  the  rights  of  the  old  company  were 
al!  extinguished  by  the  foreclosure,  and  no 
further  relief  could  be  had  against  it,  and 
it  was  not  a  necessary  party ;  therefore  a 
demurrer  to  the  bill  on  its  part  is  properly 
sustained.  Brooks  v.  Vermont  C.  R.  Co.,  17 
Avt.  &*  Eng.  K.  Cas.  276,  22  Fed.  Hep.  211. 

in  such  case  the  new  company  filed  a  plea 
that  the  road  was  in  the  hands  of  a  receiver 
appointed  by  a  state  court,  who  must  ac- 
count to  that  court,  and  not  to  the  circuit 
court  of  the  United  States,  in  which  plain- 
tiff's bill  was  filed.  Held,  that  the  plea  was 
not  sufficient.  The  bill  was  filed  to  reach 
the  income  which  the  corporation  may  have 
received  for  the  plaintiff,  and  not  to  touch 
the  property  itself,  or  in  any  way  to  interfere 
with  the  possession  of  the  receiver.  Brooks 
V.  Vermont  C.  Ji.  Co.,  17  Am.  &■*  Eng.  R. 
Cas.  276,  22  Fed.  Rep.  211. 

0.  Rights  of  non-assenting  bond- 
holders.*—(i)  In  general.—Where  a  rail- 
road company  fails  and  a  mortgage  has  to 
be  foreclosed,  the  legislature  has  full  power 
to  authorize  th ;  bondholders,  by  a  vote  of 
a  majority,  anj  with  an  equal  opportunity 
to  all  to  reorganize  as  a  new  corporation, 
with  the  rights  of  the  old  corporation,  such 
authorized  action  being  merely  a  mode  of 


*  Reorganization  agreement.  Rights  of  mi- 
nority bondholders,  see  57  Am.  &  Eno.  R.  Cas. 
171,  aistr. 


REORGANIZATION,  d. 


55 


securing  the  performance  of  the  paramount 
public  trust.  And  a  dissenting  minority 
have  no  private  rights  that  can  be  success- 
fully asserted  against  such  action.  Ga/es  v. 
Bos/on  6-  A^.  V.  A.  L.  R.  Co.,  24  Am.  &* 
Eng.  R.  Cas.  143.  53  Conn.  333,  $  Atl.  Rep. 
695.— Quoting  Canada  Southern  R.  Co.  v. 
Gebhard,  109  U.  S.  534. 

The  assent  of  the  statutory  majority  of  a 
class  to  a  scheme  of  arrangement  under  the 
Railway  Companies  Act,  1867,  cannot  be 
dispensed  with  under  section  15,  if  any  ex- 
isting right  of  that  class  is  prejudicially 
affected,  it  being  for  them  and  not  for  the 
court  to  consider  whether  the  scheme  gives 
them  such  benefits  that  their  rights  on  the 
whole  are  not  prejudicially  affected.  In  re 
Neath  <S-  B.  R.  Co..  [1892]  i  Ch.  349. 

Where  a  bondholder  appoints  an  agent  to 
represent  him  in  a  reorganization  plan,  and 
the  agent  has  voted  the  bonds  with  full 
knowledge  on  the  part  of  the  bondholder, 
and  he  has  accepted  his  share  of  the  bonds 
of  the  new  company,  and  has  offered  to  buy 
and  sell  the  same,  and  has  brought  suit  on 
them,  he  thereby  ratifies  the  act, and  has  no 
standing  in  a  court  of  equity  to  have  the 
proceedings  annulled  and  the  present  organ- 
ization dissolved,  where  there  is  no  proof  of 
fraud  or  imposition.  Matthews  v.  Miirchi- 
son,  9  Am.  &*  Eftg.  R.  Cas.  693,  1 5  Fed.  Rep. 
691. 

(2)  In  New  York.  -A  scheme  of  reorgani- 
zation which  contemplates  the  substitution 
of  three  mortgages  for  a  first  mortgage  and 
some  other  obligations  of  the  company,  one 
of  tiie  mortgages  being  made  a  first  lien  on 
all  the  property  of  the  company,  is  not 
binding  upon  a  first  mortgage  bondhr  Ider 
who  has  never  assented  thereto,  and  the 
trustees  under  the  first  mortgage  cannot 
divert  to  the  new  securities  funds  pledged 
by  the  first  mortgage.  Hollister  v.  Stewart, 
38  Am.  &•  Eng.  R.  Cas.  599,  1 1 1  N.  Y.  644, 
19  N.  E.  Rep.  782.  —  Distinguishing 
Canada  Southern  R.  Co.  v.  Gebhard,  109 
U.  S.  527.  Reviewing  Stevens  v.  Mid- 
Hants  R.  Co.,  L.  R.  8  Ch.  1064. 

Where  a  bondholder  who  refused  to  con- 
cur in  a  scheme  of  reorganization  claims, 
in  an  action  against  the  trustees  for  misap- 
plication of  funds,  that  the  funds  should  be 
applied  as  if  the  whole  of  the  assenting 
mortgage  bonds  had  been  extinguished,  and 
that  the  whole  funds  should  be  applied  to 
the  few  non-assenting  bonds  alone,  a  finding 
that  the  trustees,  though  acting  erroneously, 


proceeded  in  good  faith,  is  sufficiently  sup- 
ported, and  judgment  is  properly  rendered 
against  the  trustees  only  as  such,  and  not 
personally.  Hollister  v.  Stewart,  38  Am. 
&*  Eng.  R.  Cas.  599,  11 1  A';  Y.  644,  19  N.  E. 
Rep.  782. 

Upon  foreclosure  of  a  mortgage  of  a 
Kentucky  railroad  corporation  to  secure  its 
bonds  which,  to  the  amount  of  (994,000, 
were  then  outstanding,  the  property  was  bid 
in  by  defendants  under  an  agreement  that 
they  should  purchase  as  trustees  for  the 
benefit  of  the  bondholders,  who  had  de- 
posited their  bonds  with  a  trust  company, 
receiving  receipts  therefor.  In  case  defend- 
ants should  fail  to  sell  they  were  to  organize 
a  new  corporation,  the  stock  therein  to  be 
issued  to  the  holders  of  the  receipts,  "in 
proportion  to  the  number  of  bonds  de- 
posited, *  *  ♦  upon  the  surrender  *  *  * 
of  such  receipts ;  that  defendants  "  shall 
have  full  power  and  authority  to  make 
due  provisions,  in  their  discretion,  in  case 
of  any  defect  of  their  express  powers,  and 
shall,  nevertheless,  proceed  to  carry  out  the 
true  intent,  meaning,  and  purpose  of  the 
agreement  by  conforming  as  near  as  may 
be  to  the  provisions  thereof."  Also,  that 
"they  shall  determine  all  questions  that 
may  arise  concerning  the  construction  and 
effect  of  any  provisions  "  of  the  agreement, 
and  that  their  determination  shall  be  final 
and  conclusive."  Having  failed  to  sell 
within  the  time  designated  defendants  filed 
articles  of  incorporation,  which  fixed  the 
capital  stock  of  the  new  corporation  at  the 
same  amount  as  the  stock  of  the  old  com- 
pany, i.  e.,  $2,000,000;  of  this  amount 
$994,000  was  to  be  issued  to  the  holders  of 
the  receipts  in  consideration  of  the  con- 
veyance to  it  of  the  property ;  the  residue 
to  be  disposed  of  by  its  board  of  directors. 
By  the  laws  of  Kentucky  the  purchasers  of 
a  railroad  at  a  foreclosure  sale  are  author- 
ized to  become  incorporated,  the  corpora- 
tors to  provide  in  their  articles  for  the  issue 
of  paid-up  capital  stock  not  to  exceed  "  the 
original  cost  of  the  construction  of  the  rail- 
road and  equipment,  and  such  sums  as  may 
be  necessary  to  complete  the  same."  De- 
fendants bid  in  the  property  at  $750,000,  and 
fixed  its  cost  or  value  at  the  amount  of  the 
bonds,  and  the  new  articles  provided  for 
the  completion  of  the  road.  Held,  in  an 
action  by  a  bondholder  for  an  accounting 
that,  in  the  absence  of  evidence  of  bad  faith, 
(Icfcndaiits  were  not  guilty  of  any  violation 


56 


REORGANIZATION,  lO. 


w 


of  the  duty  they  owed  the  bondholders  for 
which  they  could  be  held  liable.  IVAt^e  v. 
IVooii,  51  Am.  &>  Eng.  R,  Cas.  73.  '29  A'. 
Y.  t^ri,  29  N.  E.  Rep.  835.  42  A'.  Y.  S.  R. 
174 ;  reversinj:  38  A'.  K.  S.  R.  338.  13  A^.  Y. 
Supp.  631. 

A  portion  of  the  relief  asked  for  in  the 
complaint  and  granted  by  the  judgment  of 
the  court  below  was  that  defendatits  be  re- 
strained from  conveying  the  property  to  the 
new  corporation.  It  appeared  that  the  con- 
veyance was  made  by  deed  executed  and 
delivered  before  the  commencement  of  the 
action.  Held,  that  this  portion  of  the 
judgment  was  ineffectual  for  any  purpose. 
White  v.  Wood,  51  Am.  Sf  Ett^.  R.  Cas.  73, 
129  N.  V.  527.  29  A^.  E.  Rep.  835,  42  N.  Y. 
S.  R.  174;  reversing  38  A'.  Y.  S.  R.  338,  13 
A^.  Y.  Supp.  631. 

The  judgment  also  restrained  the  issuing 
of  the  stock  of  the  new  company  over  and 
above  tiie  $994,000.  Neitiier  said  company 
nor  any  of  its  directors  was  made  •:  party. 
/Je/d,  that  this  portion  of  the  judgment  also 
was  ineffectual.  White  v.  Wood,  51  Am. 
&•  Eng.  R.  Cas.  73,  129  N.  Y.  527,  29  ^V.  E. 
Rep.  835,  42  A'.  Y.  S.  R.  174 ;  reversing  38 
iV.  Y.  S.  R.  338,  13  A^.  Y.  Supp.  631. 

After  foreclosure  suit  had  been  com- 
menced against  a  consolidated  railroad,  cer- 
tain stockholders  united  under  u  plan  to 
buy  the  road  and  to  form  a  new  company, 
each  to  share  in  a  pro  rata  distribution  of 
stock  and  bonds  of  the  new  company;  and 
defendants  were  appointed  a  committee  to 
carry  out  the  scheme.  Plaintiff,  who  was  a 
bondholder,  knew  nothing  of  the  proceed- 
ings fur  nine  years  after  the  agreement  was 
entered  into  and  about  six  years  after  a  de- 
cree, when  she  promptly  resorted  to  tiie 
necessary  measures  to  secure  any  advan- 
tages accruing  from  the  plan  adopted. 
Ne/d,  that  the  fact  of  her  ignorance  would 
not,  in  itself,  entitle  her  to  relief.  Hoopes 
V.  Corbin,  i  A^.  Y.  S.  R.  212. — Reviewing 
Vatable  v.  New  York,  L.  E.  &  W.  R.  Co., 
96  N.  Y.  49. 

A  new  company  was  to  be  organized  for 
the  benefit  of  bondholders  uniting  or  sub- 
scribing, which  all  might  do.  Subsequently 
an  agreement  was  entered  into  by  which 
the  committee  might  receive  signatures 
from  bondholdersut  anytime  after  the  sale, 
"  upon  such  terms  as  to  the  committee 
might  seem  meet."  Under  this  authority 
the  committee  provided  that  securities 
thereafter  issued  should  be  subj'ct  (nily  to 


the  delay  necessary  in  procuring  funds  de- 
posited in  court  by  the  committee  for  the 
redemption  of  bonds.  Held,  that  plaintiff 
was  in  time  (or  making  her  demand  some 
five  years  afterwards,  where  it  appeared  that 
the  new  securities  were  not  all  exhausted. 
Hoopes  V.  Corbin,  i  A^.   Y.  S.  R.  212. 

The  statutes  of  the  state  sanction  the  re- 
organization of  railroad  corporations,  and 
the  protection  of  large  railroad  property, 
and  the  interests  of  the  parties,  may  make 
such  a  proceeding  proper;  but  in  adopting 
a  plan  of  reorganization  there  must  be  no 
discrimination  against  those  who  do  not 
approve  of  the  plan.  De  Bete's  Petition,  9 
Abb.  N.  Cas.  (N.  Y.)  246. 

10.  Rights  of  creditors  —  Setting 
aside  foreclosure. — The  property  of  a 
railroad  corporation  is  vested  in  its  trustees, 
to  be  preserved  by  them  as  a  fund  to  secure 
the  creditors  of  the  corporation.  Where 
the  persons  interested  in  one  railroad  cor- 
poration form  a  new  one,  which  choose  for 
its  officers  the  officers  of  the  old  corpora- 
tion, and  tiie  persons  owning  the  stock  of 
the  old  corporation  receive  in  exchange 
therefor  stock  of  the  new,  and  the  trustees 
then  cause  the  property  of  the  old  corpora- 
tion to  be  conveyed  to  the  new,  the  convey- 
ance is  a  fraud  upon  the  creditors  of  the  old 
corporation.  San  Francisco  &*  N.  P.  R.  Co. 
V.  Bee,  48  Cal.  398.— FOLLOWING  Martin  v. 
Zellerbach,  38  Cal.  300. 

After  a  mortgage  on  a  railroad  had  been 
foreclosed  and  the  property  bought  in  for 
the  benefit  of  bondholders,  most  of  whom 
united  in  a  plan  for  reorganization,  and  after 
other  creditors  had  obtained  judgments 
subsequent  to  the  mortgage,  a  decree  by 
such  judgment  creditors  setting  aside  the 
foreclosure  and  subjecting  the  property  to 
payment  of  other  judgments,  only  renders 
the  foreclosure  invalid  as  to  such  judgment 
creditors.  Bondholders  who  voluntarily 
take  stock  in  the  new  company  cannot  again 
set  up  a  claim  under  the  mortgage,  nor  can 
the  mortgage  trustee  maintain  a  second  bill 
to  foreclose  for  the  benefit  of  the  bondhold- 
ers. Barnes  v.  Chicago,  M.  &*  St.  P.  R.  Co., 
SBiss.  {U.  S.)  514. 

A  consent  decree  for  the  foreclosure  and 
sale  of  a  railroad,  looking  to  a  reorganiza- 
tion, will  not  be  set  aside  on  the  application 
of  certain  stockholders,  merely  because  the 
principal  of  one  mortgage  on  the  road  is 
not  yet  due,  where  it  appears  that  the  sums 
due  on  other  demands  are  so  large  as  to 


REORGANIZATION,  11,  12. 


67 


',  funds  de* 
tee  for  the 
at  plaintiff 
land  some 
)eared  that 
exhausted. 

12. 

ion  the  re- 
ations,  and 
I  property, 
may  malie 
n  adopting 
nust  be  no 
fio  do  not 
Petition,  9 

-  Settinir 

perty  of  a 
ts  trustees, 
d  to  secure 
n.  Where 
lilroad  cor- 
choose  for 
d  corpora- 
te stock  of 

exchange 
le  trustees 
Id  corpora- 
he  convey- 
$  of  the  old 

P.  K.  Co. 

Martin  v. 


I  had  been 
ight  in  for 
:  of  whom 
n,  and  after 
judgments 

decree  by 
;  aside  the 
property  to 
ily  renders 
I  judgment 
voluntarily 
nnot  again 
ge,  nor  can 
second  bill 

bondhold- 
/.  P.  R.  Co., 


make  a  foreclosure  Inevitable,  in  the  absence 
of  proof  of  fraud,  or  of  any  offer  on  the  part 
of  the  complaining  stockholders  to  do  equi- 
ty by  offering  to  pay  the  floating  indebted- 
ness of  the  company,  and  where  they  have 
not  been  diligent  in  attacking  the  decree 
complained  of,  or  the  new  organization. 
Carey  v.  Houston  S*  T.  C.  Jt.  Co.,  52  Fed. 
Rep.  671. 

Wisconsin  Rev.  St.,  1858,  ch.  125,  §  24, 
changes  the  law  in  respect  to  pleading  per- 
formance of  conditions  precedent,  by  pro- 
viding that  it  shall  not  be  necessary  to  state 
the  facts  showing  such  performance,  but 
that  it  may  be  stated  generally  that  the  party 
has  duly  performed  all  the  conditions  on  his 
part.  So  where  a  railroad  company  enters 
into  an  agreement  for  a  reorganization,  pro- 
viding that  the  unsecured  creditors  may  re- 
ceive stock  in  the  new  company  on  certain 
conditions,  a  complaint  by  a  creditor  which 
alleges  "  that  he  performed  all  the  things, 
and  kept  and  observed  all  the  conditions  by 
him  to  be  kept,  observed,  and  performed, 
to  entitle  him  to  stock,"  is  sufficient  on  de- 
murrer. Sttith  V.  Chicago  &*  N.  W.  R.  Co., 
19  Wis.  326. 

11.  Rights  of  prior  mortgagees.— 
A  fraudulent  purchaser  of  railroad  property, 
upon  being  subsequently  deprived  of  pos- 
session, cannot  recover  the  cost  ot  repairs 
or  improvements,  nor  the  amount  of  en- 
cumbrances discharged  by  him  while  in 
possession.  Milwaukee  &*  M.  R.  Co.  v. 
Soulier,  1 3  Wall.  {U.S.)  517,4  Am.  Ry.  Rep. 
277. 

A  railroad  which  was  subject  to  two 
mortgages  was  sold  on  execution,  and 
bought  in  by  certain  bondholders  secured 
by  the  second  mortgage  on  the  road.  They 
organized  under  the  state  law  into  a  new 
corporation,  and  continued  to  operate  the 
road  for  their  own  benefit.  Afterwards  suit 
was  commenced  to  foreclose  the  first  mort- 
gage, and  to  prevent  a  sale  the  new  com- 
pany paid  off  the  mortgage  debt.  Still  sub- 
sequently a  sale  under  the  second  mortgage 
was  set  aside  as  fraudulent,  whereupon  the 
new  corporation  filed  a  bill  against  the 
mortgagees  in  the  first  mortgage  to  compel 
them  to  pay  back  what  they  had  paid  in 
discharge  of  the  mortgage,  or  to  be  subro- 
gated to  their  decree  of  foreclosure.  Held, 
that,  as  they  were  wrongfully  in  possession 
of  the  property,  the  bill  could  not  be  main- 
tained. Milwaukee  &*  M.  R.  Co.  v.  Soulier, 
13  WW/.  (U.  S.)  517,  4  Am.  Ry.  Rep.  277. 


12.  Legal  status  of  new  corpora- 
tion.—Under  Ala.  Act  of  Dec.  17,  1873,  as 
amended  March  20,  1875,  "  to  constitute  the 
purchaser  of  any  railroad  heretofore  sold 
under  authority  of  any  law  of  this  state,  a 
body  corporate  and  politic,"  the  new  corpo- 
ration succeeds  to  the  franchises,  faculties, 
and  powers  of  the  old  corporation  precisely 
surrendered  or  lost;  though  as  to  owner- 
ship of  property  and  liabilities,  it  is  a  new 
corporation.  Mobile  &»  M.  R.  Co.  v.  Stein- 
er,  61  Ala.  559. 

Where  a  company  is  chartered  without 
any  restriction  as  to  the  power  to  fix  charges 
on  freights,  but  subsequently  accepts  aid 
from  the  state  under  the  condition  that  a 
limitation  on  its  power  shall  be  imposed, 
such  limitation  becomes  part  of  its  charter, 
and  a  new  corporation  formed  by  those  pur- 
chasing the  property,  under  the  Alabama 
statute,  succeeds  only  to  the  rights  of  the 
original  company  and  is  bound  by  such  lim- 
itation. Mobile  &•  M.  R.  Co.  v.  Steiner,  61 
Ala.  559. 

Where  a  company  is  incorporated  by  the 
general  assembly  of  the  state,  and  sold  under 
a  decree  of  a  United  States  court,  and  the 
purchasers  have  organized  themselves  into 
a  new  corporation  under  Ga.  Act  of  1876, 
and  filed  their  certificate  of  incorporation  in 
the  office  of  the  secretary  of  state,  it  is  not  a 
foreign  corporation.  Griffin  v.  Augusta  &* 
K.  R.  Co.,  72  Ga.42i. 

Under  acts  of  the  general  assembly  of 
1845  and  1848,  a  city  council  consented  to 
the  location  and  construction  of  a  railroad, 
and  the  erection  of  buildings  for  railroad 
purposes,  within  the  city,  on  condition  that 
the  company  would  fill  certain  tide-flowed 
lands  within  a  specified  time.  The  filling 
was  not  wholly  done  by  the  company,  and 
was  completed  by  the  city  after  the  time 
had  expired.  Held,  that  a  second  company, 
successor  to  the  original  company,  had  no 
claim  to  such  land  as  was  filled  by  the  city. 
New  York  <S-  IV.  E.  R.  Co.  v.  Providence,  16 
R.  J.  746,  19  All.  Rep.  759. 

Where  a  company  holding  a  charter  that 
was,  in  express  terms,  not  liable  to  amend- 
ment was  sold  out  under  orders  of  the 
court,  and  the  purchasers  formed  a  new 
corporation  under  a  general  law  permitting 
it  in  such  cases,  with  all  the  rights,  immuni- 
ties, etc. ,  possessed  by  the  old  corporation 
previous  to  the  sale  under  its  charter,  and 
amendments  thereto,  and  of  other  laws  of 
the  state,  the  new  corporation  became  sub- 


58 


REORGANIZATION,  13. 


ject  to  all  laws  on  the  statute  book  applica- 
ble to  railroads  at  the  date  of  their  organi- 
zation. Columbia  &*  G.  A'.  Co.  v.  GiUes,  24 
So,  Car.  60.— Reviewf.d  in  Charlotte,  C.  & 
A.  R.  Co.  V.  Gibbes,  31  Am.  &  Eng.  R.Cas. 
464,  27  So.  Car.  385.  4  S.  E.  Kep.  49- 

The  duty  imposed  by  a  charter  in  the 
first  instance  passes  to  and  rests  upon  the 
successors  to  tlie  first  company.  Ujfer 
County  V.  Chesaptake,  0.  6-  .S".  W.  R.  Co.,  38 
Am.  &'Eni[.  A'.  Cas,  676,  87  Tenn.  712,  1 1 
S.  W.  Hep.  943. 

While  an  execution  sale  of  the  franchise 
and  property  of  a  railway  company  conveys 
the  franchise  and  property  to  the  purchaser, 
still  the  corporate  existence  of  the  sold  out 
company  remains.  Gulf,  C.  6-  i".  F.  R.  Co. 
V.  Newell,  38  Am.  &*  Eng.  R.  Cas.  503,  73 
Tex.  334,  1 1  S.  W.  Rep.  342. 

13.  Liability  for  debts  of  old  coiii- 
paiiy.— (I)    In   general.— h.    new  railway 
company  organized  by  authority  of  statute, 
by  persons  who  had  purchased  the  property 
of  another  company  at  a  foreclosure  sale, 
although  declared  to  be  clothed  with  the 
same  powers  as  the  original  company,  is  not 
the  same,  and  is  not  liable  for  its  debts. 
Vilas  V.  Milwaukee  &*  P.  du  C.  R.  Co.,  17 
Wis.  497.— Followed  in  Oilman  v.  She- 
boygan &  F.  du  L.  R.  Co.,  37  Wis.  317. — 
Stnilh  V.  Chicago  St'  N.  IV.  R.  Co.,  18  IVis. 
17.  — Followed  in  Oilman  v.  Sheboygan  & 
F.  du  L.  R.  Co.,  37  Wis.  317. — Gilman  v. 
Sheboygan  &*  F.du  L.  R.  Co.,  37  Wis.  317. 
—  Dk:tinguishing  Pfciferz/,  Sheboygan  & 
F.  du  L.  R.  Co.,  18  Wis.  155.    Following 
Vilas  V.  Milwaukee  &  P.  du  C.  R.  Co.,    17 
Wis.  498;  Smith  7\ Chicago*  N.  W.  R.Co., 
18  Wis.  17 ;  Wright  v.  Milwaukee  &  St.  P. 
R.  Co.,  25  Wis.  ^e.— Central  R.  Co.  v.  Bunn, 
II  N.  J.  Eq.  336.       Vose  v.  Cowdrey,  49  N. 
Y.  336.— Distinguishing  Chicago,  R.  I.  & 
P.  R.  Co.  V.  Howard.  7  Wall.  (U.  S.)  392. 

Plaintiff  entered  into  a  contract  with  two 
railroad  companies  to  build  a  joint  passen- 
ger station  for  them,  each  of  the  companies 
to  pay  a  specified  sum  and  he  to  pay  a  part 
of  the  cost  himself,  though  there  was  noth- 
ing to  show  that  he  was  to  have  any  interest 
in  the  building.  One  of  the  companies, 
which  failed  to  pay  as  it  had  agreed  to  do, 
had  a  mortgage  upon  all  of  its  property 
when  the  contract  was  entered  into,  which 
was  foreclosed,  and  the  bondholders  became 
the  purchasers  and  reorganized  the  com- 
pany. //<•///.  that  the  new  company,  although 
it  used  the  stjiti<  n,  was  not  liable  to  plain- 


tiff. Moyer  v.  Ft.  Wayne,  C.  &*  L.  R.  Co., 
51  Am.&*Eng.  R.  Cas.  68,  132  Ind.  88,  31 
N.  E.  Rep.  567.  —  Distinguishing  Lake 
Erie  &  W.  R.  Co.  v.  Griffin,  107  Ind.  464 ; 
Uloomlield  R.  Co.  v.  Grace,  112  Ind,  128. 

An  agreement  between  the  bondholders 
that  a  certain  sum  sh(juld  be  retained  for 
the  payment  of  a  specified  claim  and  other 
smiill  claims,  as  might  be  required,  the  claim 
of  the  plaintiff  not  being  specially  desig- 
nated, created  no  obligation  in  his  favor. 
Moyer  v.  Ft.  Wayne,  C.  6-  L.  R.  Co.,  51 
Am.  &•  Eng.  R.  Cas.  68,  132  /nd.  88.  31  A'. 
E.  Rep.  567. 

Even  if  an  obligation  was  created  in  favor 
of  plaintiff,  he  would  have  no  right  to  re- 
cover upon  it,  as  it  does  not  appear  that  the 
sum  was  not  properly  used  to  pay  the  claim 
specified  or  other  claims,  having  rightful 
precedence  of  plaintiff's  claim.  Moyer  v. 
Ft.  Wayne,  C.  &>  L.  R.  Co.,  51  Am.  6- 
Eng.  R.  Cas.  68,  132  Ind.  88,  31  A'.  E.  Rep. 

567. 

A  law  provided  that,  if  the  property  of  an 
existing  railroad  should  be  sold  under  a 
mortgage,  the  purchasers  might  organize 
another  company.  The  sale  wiis  made  and 
the  purchasers  organized  with  the  same 
name,  except  "  railroad  "  was  changed  to 
"  railway."  Held,  that  there  was  no  privity 
between  the  two  companies,  and  that  the 
latter  was  not  liable  for  the  debts  of  the 
former.  Stewart 's  Appeal,  72  Pa.  St.  291, 
—Distinguishing  Chicago,  R.  1.  &  P.  R. 
Co.  V.  Howard,  7  Wall.  (U.  S.)  392, 

Stockholders  in  the  original  company,  by 
an  arrangement  subsequent  to  the  purchase 
and  before  the  organization  of  the  new  com- 
pany, were  allowed,  under  the  act  of  assem- 
bly, to  become  stockholders  of  the  new 
company,  without  payment  of  any  money. 
Held,  that  this  did  not  impose  on  the  new 
company  the  debts  of  the  old.  Stewart's 
Appeal,  72  Pa.  St.  291, 

Creditors  of  an  individual  attached  his 
securities  held  by  the  old  company ;  judg- 
ment was  had  against  the  company  as  gar- 
nishee. Held,  that  the  officers  of  the  com- 
pany having  charge  of  the  securities,  not 
being  parties  to  the  attachment,  were  not 
liable  to  plaintiffs.  Their  possession  and 
acts  were  those  of  the  company,  and  their 
liability,  if  any,  was  to  the  company,  and  not 
to  plaintiffs.  Stewart's  Appeal,  72  Pa.  St. 
291. 

A  railroad  property  and  franchises  were 
bought  at  judicial  sale  by  H-  and  others, 


I 


REORGANIZATION,  14. 


09 


who  subsequently,  under  the  provisions  of 
Pa.  Act  of  April  8,  i86i,  organized  a  com- 
pany. Htld,  that  the  company  v/as  not 
liable  for  the  operation  of  the  road  during 
the  time  between  the  purchase  und  the 
organization  of  the  company,  utilcss  the 
possession  of  the  company  was  aflirmatively 
shown.  The  presumption  was  that  H.  and 
not  the  company  was  in  possession  of  the 
road  between  the  date  of  the  sale  and  the 
time  of  filing  the  certificate  of  organization. 
Pittsburgh,  C.  6-  St.  L.  A'.  Co.  v.  Fierst.  g 
Am.  &*  Eng,  K.  Cas.  437,  96  Pa.  St.  144. 

(2)  Statutory  or  contract  liability.— h  cor- 
poration  organized,  pursuant  to  an  agree- 
ment, sanctioned  by  competent  legislative 
authority,  is  bound  by  whatever  is  thereby 
imposed  in  favor  of  third  parties.  A  pro- 
vision in  such  agreement,  that  the  company 
sh:ill  assume  all  liabilities  relating  to  certain 
lines  of  railroad  transferred  to  it  by  such 
agreement,  includes  debts  contracted  in  the 
construction  of  such  lines  of  road,  and  se- 
cured thereon  by  a  trust  mortgage ;  and  the 
company  is  liable  for  their  payment  to  the 
holders  thereof.  Welsh  v.  First  Div.  St. 
P.  Sf  P.  R.  Co.,  25  Minn.  314. —Referring 
TO  First  Div.  St.  P.  &  P.  R.  Co.  v.  Parcher, 
14  Minn.  297.— Followed  in  Patterson  v. 
First  Div.  St.  P.  &  P.  R.  Co.,  25  Minn. 
324.  «. 

Under  Minn.  Sp.  Laws,  1881,  ch.  414, 
upon  the  purchase  by  the  Winona  &  St. 
Peter  railroad  comp.-»ny,  of  the  property  and 
franchises  of  the  Plainview  railroad  copi- 
pany,  it  succeeded  to  the  liabilities  of  the  lat- 
ter company.  Plainview  \.  Winona  &*  St. 
P.  R.  Co.,  30  Am.  &*  Eng.  R.  Cas.  259.  36 
Minn.  505,  32  N.   W.  Rep.  745. 

Under  Tex.  Rev.  St.  art.  4260,  which  de- 
fines the  powers  of  purchasers  of  railroad 
property  under  execution,  and  declares 
them  to  be  true  owners  of  the  property,  the 
purchaser  at  an  execution  sale  of  such  prop- 
erty does  not  assume  any  liability  for  former 
indebtedness  not  secured  by  a  lien ;  and  is 
not  liable  under  an  agreement  made  by  the. 
company  to  erect  and  maintain  a  depot. 
Gulf,  C.  <&«•  S.  F.  R.  Co.  v.  Nr^vell,  38  A>n. 
&*  Eng.  R.  Cas.  503,  73  Tex.  334,  1 1  S.  W. 
Rep.  342. 

Where  the  property  and  franchise  of  a 
railroad  have  been  sold  under  a  deed  of 
trust,  and  the  purchasers  reorganize,  to 
prove  a  new  promise  by  the  reorganized 
company  to  pay  a  debt  owing  ty  the  com- 
pany as  originally  organized,  there  must  be 


shown  some  action  of  the  directors  of  the 
former  from  which  the  promise  can  be 
clearly  inferred.  The  mere  certificate  of 
their  secretary  that  the  amount  was  due, 
would  be  insufficient  to  bind  the  company, 
unless  it  appeared  he  had  been  empowered 
to  adjust  the  claim.  Amtrican  C.  R.  Co.  v. 
Miles,  52  ///.  174. 

An  act  of  the  legislature  provided  that 
the  trustees  in  a  railway  deed  of  trust,  and 
the  cestuis  que  trustent  and  their  associates, 
who  should  purchase  at  a  sale  under  the 
deed  of  trust,  should  be  incorporated  by  a 
name  different  from  that  of  the  old  com- 
pany, with  power  to  purchase  and  own  the 
franchise  and  property  of  the  old  company, 
and  should  be  invested  with  all  its  corporate 
powers  and  privileges,  but  did  not  give  the 
stockholders  in  the  old  company  any  rights 
in  the  new  company,  or  require  the  latter 
company  to  pay  the  debts  of  the  former. 
Held,  that  a  new  corporation  was  created 
and  was  not  a  reorganization  of  the  old 
company,  and  that  it  took  what  it  purchased 
subject  to  no  liens  or  claims  save  such  as 
were  paramount  to  the  deed  of  trust. 
Morgan  County  v.  Thomas,  76  ///.  120. 

Where  a  new  company  is  organized  by 
the  stockholders  of  an  old  company  for  the 
express  purpose  of  acquiring  all  the  rights, 
property,  and  franchises  of  the  old  company, 
and  assuming  all  its  obligations,  and  the  old 
company  having  postponed  its  dissolution 
until  after  such  transfer  and  assumpsit 
should  have  been  made,  the  new  company, 
for  the  purpose  of  the  contract  declared  on 
in  this  case,  was  merely  the  old  company  re- 
organized under  a  new  name.  Canal  &*  C. 
R.  Co.  V.  St.  Charles  St.  R.  Co.,  44  La.  Ann. 
1069,  1 1  So.  Rep.  702. 

A  railroad  company  may  enter  into  a 
valid  agreement  with  its  mortgagees  and 
bondholders,  for  a  reorganization  after  sale, 
with  permission  to  the  stockholders  and 
unsecured  creditors  of  the  old  company  to 
become  stockholders  in  the  new.  Smith  v. 
Chicago  Sf  N.  W.  R.  Co.,\%  Wis.  17. 

14. for  torts  of  old  company.— 

A  railroad  having  been  sold  by  order  of 
court  to  pay  the  debts  of  the  corporation, 
the  purchasers  are  not  responsible  for  in- 
juries done  by  the  railroad  to  adjoining 
lands  before  the  sale,  and,  therefore,  in  an 
action  against  the  new  company  for  dam- 
ages done  by  the  railroad  to  such  lands 
caused  by  a  failure  to  maintain  proper  drain- 
age, the  circuit  judge  erred  in  charging  the 


T 


M 


REORGANIZATION,   15,  10. 


Hi 


;  ! 


Jury  that  "  you  will  take  into  consideration 
all  you  have  heard  as  to  the  value  of  the 
land  then  and  now,"  in  estimating  the 
damages.  Hammond  v.  Port  Royal  <5-  A. 
R.  Co.,  1 1  Am.  &•  Eng.  R.  Las.  352.  1 5  >^<'- 
Car.  10. 

But  whether  the  damages  should  be 
measured  by  the  rent  of  the  land,  the  value 
of  crops  or  the  deterioration  in  value  of  the 
land,  one  or  all.wa-  ,.  matter  for  the  jury  to 
determine  from  the  evidence.  Haminonii  v. 
Po,'  Royal &*  A.  R.  Co.,  \\  Am.  <S-  Etig. 
R.  Cas.  352.  15  So.  Car.  10. 

15. for  expoiiHCH  of  reorgnnlxa- 

tioii.— The  holders  of  the  different  mort- 
gages on  a  railroad  agreed  with  a  trust  com- 
pany, that  the  latter  was  to  obtain  control 
of  all  the  mortgages,  reorganize  the  com- 
pany and  issue  new  stock  therein,  and 
also  ascertain  the  floating  indebtedness  of 
the  company  and  the  cost  of  carrying  out 
the  plan,  and  fix  the  amount  to  be  paid  by 
each  stockholder  of  the  old  company  in 
order  to  become  a  stockholder  in  the  new. 
f/fl(l,  that  the  judgment  of  such  trust  com- 
pany in  ascertaining  what  were  debts  and 
liabilities  of  the  old  company  would  not  be 
interfered  with  by  the  court  when  honestly 
and  fairly  exercised.  Gernsheim  v.  Central 
Trust  Co.,  \6N.  V.  Supp.  127,  40  A'.  Y.  S. 
R.  967,  61  Hun  625,  mem. 

Such  agreement  provided  that  "  liabilities 
incurred  in  the  reorganization  "  should  be 
considered  in  ascertaining  such  indebted- 
ness and  liabilities.  Held,  that  interest  on 
new  bonds  issued  to  the  holders  of  bonds 
of  the  old  company  in  exchange,  and  for 
which  the  property  of  the  old  company  was 
bonded,  was  properly  included  as  "liabil- 
ities." Gernsheim  v.  Central  Trust  Co.,  16 
N.  Y.  Supp.  127,  40  A'.  Y.  S.  R.  967.  61  Hun 
625,  metn. 

In  ascertaining  such  "  liabilities,"  it  was 
necessary  for  the  trust  company  to  make 
inquiries  in  different  cities  at  a  long  distance 
from  each  other,  and  to  examine  numerous 
books,  papers,  and  vouchers.  Held,  that  a 
court  would  not  interfere  with  the  finding 
of  the  trust  company,  on  the  ground  that 
no  notice  was  given  to  the  stockholders  of 
the  times  and  places  where  and  when  the 
trust  company  would  meet  to  nake  such 
investigation.  Gernsheim  v.  Central  Trust 
Co.,  16  A^.  Y.  Supp.  127,  40  A^.  Y.  S.  R.  967, 
61  Hun  625,  mem. 

An  agreement  was  made  by  the  holders  of 
chattel  bonds  of  an  insolvent  railroad  com- 


pany, by  tiieir  attorney,  under  which  a  new 
company  was  organized  on  the  basis  ol  a 
division  of  the  stock  in  certain  proportions 
among  those  interested  in  the  old  company, 
and  it  was  agreed,  among  other  things,  that 
"  the  expenses  of  carrying  out  this  agree- 
ment, printing  new  bonds,  etc.,  are  to  be 
sustained  by  the  new  company."  Held,  that 
the  words  "printing  bonds,  etc.,"  did  not 
restrict  the  agreement  to  expenses  of  that 
character,  but  covered  all  reasonable  and 
necessary  expenses  in  carrying  out  the  ar- 
rangement. Catawissa  R.  Co.  v.  Titus,  49 
Pa.  St.  277. 

On  the  division  of  a   railway  which  ex- 
tended from  the  northern  to  the  southern 
line  of  the  state,  and  which  was  divided  at 
a  certain  river,  the  northern  company  re- 
tained the  northern  portion  of  the  route, 
with  all  the   subscriptions  for  the  capital 
stock,  and  the    original  corporate  name. 
Held :  (I)  That  this  was  not  to  be  deemed  a 
new  corporation  but  rather  a  continiiiition 
of  the  original  one  with  a  diminishetJ  fran- 
chise; and  that  having,  after  its  organiza- 
tion, elected  to  take  the  benefit  of  plaintiff's 
services  in  effecting  such  division  and  or- 
ganization, and  obtaining  subscriptions  for 
stock,  with  a  knowledge  of  those  services, 
and  that    compensation   was    claimed    for 
them,  it  was  bound  to  pay  what  those  ser- 
vices were  reasonably  worth.      (2)  That  a 
provision  in  the  charter  making  the  corpora- 
tion liable  for  preliminary  services,  and  other 
specified  services  before  the  organization, 
but  not  including  such  services  as  plaintiff's 
did   not  affect   plaintiff's  right  to   recover 
upon  the  ground  of  a  subsequent  ratification. 
Lo7v  v.   Connecticut  &•  P.  A'.  R.  Co.,  46  JV. 
H.  284.— Distinguishing  Hall  v.  Vermont 
&  M.  R.  Co.,  28  Vt.  401, 

16. for  value  of  land  taken  by 

old  company.— Where  a  railroad  mort- 
gage is  foreclosed,  and  a  new  company  is 
organized  under  the  laws  of  the  state  for 
the  purpose  of  owning  and  operating  the 
railway  with  all  its  franchises,  rights,  and 
property,  the  new  company  is  not  liable  at 
law  for  the  general  debts  of  the  old  com- 
pany, except  such  as  it  may  assume.  Lake 
Erie  5-  W.  R.  Co.  v.  Griffin,  17  Am.  <S- 
Eng.  R.  Cas.  235,  92  Ind.  487 ,  further 
appeal  27  Am.  &*  Eng.  R.  Cas.  394, 107  Ind. 
464,  8  A^.  E.  Rep.  451, 

But  where  the  old  company  has  appro- 
priated land  for  the  purposes  of  its  railroad, 
and  a  judj;mci)t  has  been  rendered  against 


REORGANIZATION,  17,  18. 


61 


it  for  the  value  of  the  land,  if  the  new  com- 
pany enters  upon  and  occupies  such  land,  it 
will  be  liable  in  equity  for  the  payment  of 
such  judgment,  upon  the  principle  that  It 
has  adopted  and  ratified  the  original  appro- 
priation. Lakt  Erit  &*  W.  /f.  Co.  v.  Grt/^H, 
17  Am.  ^  Eng.  R.  Cm.  235.  9'  /«<'•  487  ; 
further  appeal  27  //;//.  &»  Eng.  R.  Cas.  394, 
107  In,/.  464.  8  N.  E.  Rep.  451. 

And  It  cannot  escape  such  liability  by 
afterwards  abandoning  the  land.  Lake  Erie 
&>  IV.  R.  Co.  V.  Griffin,  27  Am.  «S-  Eng.  R. 
Cas.  394,  107  /mi.  464,  8  A'.  E.  Rep.  45'  > 
former  appeal  17  Am.  &*  Eng.  R.  Cas.  235, 
92  /tid.  487. 

17. lor  state  taxoH.  —  The  N.  Y. 

Act  of  May  11,  1874,  as  amended  June  2. 
1876,  entitled  "An  act  to  facilitate  the  re- 
organization of  railroads  sold  under  mort- 
gage, and  to  provide  for  the  formation  of 
new  companies  in  such  cases,"  creates  no 
contract  between  persons  purchasing  a  rail- 
road at  a  foreclosure  sale  and  wishing  to 
reorganize,  and  the  state;  therefore,  the  N. 
Y.  Act  of  April  16,  1886,  requiring  all  cor- 
porations to  p  y  a  tax  to  the  state  of  one 
eighth  of  one  per  cent,  of  their  capital  stock 
before  a  charter  issues,  does  not  violate  the 
obligation  of  any  contract,  though  the  par- 
ties seeking  to  reorganize  bought  the  rail- 
road before  the  passage  of  the  latter  act. 
Pet^ple  ex  rel.  v.  Cook,  57  Am.  &*  Eng.  R. 
'Sas.  256.  148  U.  S.  397, 13  Sup.  Ct.  Rep.6\l ; 
aj.  •"•<ig  16  Am.  ix»Eng.  R.  Cas.  256,  no 
A'.   1 .  443,  18  A'.  E.  Rep.  113. 

The  above  statute  of  1886,  requiring,  as  a 
condit  1  precedent  to  obtaining  a  charter, 
the  paj  inent  of  one  per  cent,  upon  the  pro- 
posed amount  of  capital  stock,  applies  to 
the  organization  of  corporations  by  pur- 
chasers at  a  foreclosure  sale  of  the  property 
and  franchises  of  railroad  corporation ; 
and,  althougli  thesi.iiutes  of  the  state  pro- 
vide that  such  purchasers  shall  have  the 
right  to  incorporate,  with  all  the  powers, 
privileges,  and  franchises  of  the  corporation 
whose  property  is  acquired,  the  imposition 
of  said  tax  does  i.  i  violate  the  obligation 
of  the  contract  within  the  inhibition  of  the 
federal  constitution.  People  ex  rel.  v.  Cook, 
57  Am.  &•  Eng.  R.  Cas.  256,  148  U.  S.  397, 
13  Sup.  Ct,  Rep.  645;  affirming  36  Am.  6- 
Eng.  R.  Cas.  256,  no  A^.  Y.  443,  18  JV.  E. 
Rep.  n3. 

Even  if  the  imposition  of  such  a  tax 
would  violate  a  contract,  in  view  of  the  right 
of  reorganization  conferred  upon  purchasers 


at  such  foreclosure  sale,  the  state  has  the 
power  to  require  the  payment  of  said  tax, 
under  the  authority  granted  by  the  con- 
stitution to  repeal  or  amend  any  coporate 
charter  or  privilege.  People  ex  rel.  v.  Cook, 
57  Am.  &>  Eng.  R.  Cas.  256,  148  U.  S.  397, 
13  Sup.  Ct.  Rep.  64s;  affirming  36  Am.  &* 
Eng.  R.  Cas.  256,  no  A'.  Y.  443,  18  A'.  £•. 

AVAn3. 

The  laws  of  1886  relating  to  organization 
taxes  apply  to  corporations  formed  by  the 
reorganization  of  railroads  sold  under  mort- 
gage foreclosure.  People  ex  rel.  v.  Cook,  36 
Am.  6-  Eng.  R.  Cas.  256,  no  M  Y.  443, 18 
N.  E.  Rep.  n  3  ;  affirming  47  Hun  467. 

A  line  of  railroad  from  Brainerd  to  Wa- 
tab,  formerly  a  part  of  the  chartered  line  of 
the  St.  Paul  &  Pacific  R.  Co.,  was  con- 
structed by  the  Western  R.  Co.  of  Minne- 
sou  in  1877-78,  under  Sp.  Laws  1877,  ch. 
201,  by  force  of  which  the  forfeited  fran- 
chises, privileges,  and  immunities  of  the 
former  corporation,  appertaining  to  this  line 
of  road,  were  transferred  to  the  latter  com- 
pany. Held,  that  the  same  obligation,  as 
respects  the  percentage  of  earnings  to  be 
paid  to  the  state  in  lieu  of  taxation,  attended 
the  franchises  and  immunities  thus  trans- 
ferred, as  the  original  company  would  have 
been  subject  to  if  it  had  constructed  the 
road.  Hence,  pursuant  to  ch.  6,  Sp.  Laws 
1865,  this  defendant,  operating  this  section 
of  road  under  lease  from  the  Western  R. 
Co.,  was  liable  to  pay  to  the  state,  for  the 
year  1885,  three  per  cent,  of  the  gross  earn- 
ings therefrom.  State  v.  Northern  Pac.  R. 
Co.,  29  Am.  &*  Eng,  R,  Cas,  219,  36  Minn. 
207,  30  A^.  IV.  Rep,  663.— Approving  Chi- 
cago, M.  &  St.  P.  R.  Co.  V,  Pfaender,  23 
Minn.  217. 

Where  a  Missouri  railroad  company,  char- 
tered with  a  provision  exempting  it  from 
taxation  for  a  period  of  years,  unites  with 
an  Iowa  road,  and  the  consolidated  road  is 
subsequently  sold  under  foreclosure  pro- 
ceedings, the  new  or  reorganized  company 
will  take  the  property  subject  to  the  consti- 
tutional provision  then  existing  which  pro- 
hibits such  property  from  being  exempt 
from  taxation.  Keokuk  &•  W.  R.  Co.  v. 
Missouri,  152  U.  S.  301, 14  Sup,  Ct.Rep.yjZ. 
—Followed  in  Keokuk  &  W.  R.  Co.  v. 
Scotland  County,  152  U.  S.  317,  14  Sup.  Ct. 
Rep.  608. 

18.  Setting  aside  the  reorganiza- 
tion. —  Where  a  committee  of  railroad 
mortgage  bondholders  appointed  on  fore- 


If! 


I  j,  i  I 


68 


REORGANIZATION,  19. 


i  ■; 


s  J 


!   ; 


J  ! 

j 

f 

i 

i 

m. 

closure  sale  of  the  mortgaged  property,  for 
the  purpose  of  effecting  a  reorganization, 
enter  into  a  contract  within  the  scope  of  tije 
authority  given  to  them,  an  action  to  have 
the  contract  adjudged  null  and  void  is  not 
sustainable,  in  the  absence  of  any  claim  of 
fraud  on  the  part  of  those  contracting  with 
the  committee,  or  participation  on  their  part 
in  some  fraud  of  the  committee ;  it  is  not 
sufficient  to  aver  conduct  on  the  part  of  the 
latter  which  might,  as  between  tiiem  and 
the  bondholders,  amount  to  a  violation  of 
their  trust  duties.  Brooks  v.  Dick,  135  N. 
Y.  652.  32  N.  E.  Rep.  230,  48  A^.  Y.  S.  R. 
555;  affirming  43  A^.  Y.  S.  R.  37.  ^7  N.  Y. 
Supp.  259. 

A  trust  d  jed  was  executed  in  1870  by  a 
street-railway  company  to  secure  its  bonds. 
In  1873,  becoming  insolvent,  the  company 
suspended.  W.,the  holder  of  1874  of  the 
2000  shares  and  of  (49,000  of  the  $50,000  of 
bonds,  being  elected  president,  expended 
much  money  and  greatly  improved  the  sit- 
uation. Trustees  having  vacated,  VV.  had 
others  substituted  by  the  court.  W.  then 
became  the  purchaser.  He  failing,  there 
was  a  second  sale.  In  the  meantime  no  ob- 
jections were  made.  In  1886,  the  property 
having  become  valuable,  G.,  owning  three 
shares,  brought  suit  for  himself  and  the 
other  stockholders  to  set  aside  the  reorgan- 
ization and  sale  on  the  ground  of  some 
alleged  informality  in  the  notice  on  which 
the  order  of  substitution  was  made.  Held, 
that  by  laches  complainant  lost,  if  he  had 
any,  right  to  relief.  Godwin  v.  Whitehead, 
88  Va.  600,  \^S.  E.  Rep.  344. 

It).  English  "  schemes  of  arran(j:c- 
ment."  —  The  assent  of  the  preference 
shareholders  to  a  scheme  of  arrangement 
between  a  railway  company  and  its  crc  iiiors 
must,  under  the  Railway  Companies  Act, 
1867,  be  given  in  writing,  although  the  spe- 
cial act  of  the  company  gave  preference 
•hares  the  like  right  of  voting  at  meetings 
as  ordinary  shares,  and  the  scheme  was 
assented  to  by  all  the  preference  and  ordi- 
nary shareholders  present  at  an  extraordi- 
nary general  meeting.  In  re  Cambrian  R. 
Co.,  19  W.  R.  871,  24  L.  T.  417. 

A  scheme  of  arrangement  under  the  above 
act,  providing  (or  the  borrowing  of  large 
sums,  and  that  the  entire  authorized  loan 
capital  should  be  applied  in  completing  and 
stocking  the  line,  and  then  to  all  lawful 
purposes,  and  not  containing  any  special 
provision  for  the  payment  of  or  arrange- 


ment with  creditors,  will  not  be  confirmed 
by  the  court.  In  re  Letter kenny  R.  Co.,  4 
Ir.  R.  Eg.  538. 

A  petition  for  the  confirmation  of  the 
scheme  of  arrangement  between  a  company 
and  its  creditors  will  be  dismissed  where 
some  of  the  outside  creditors  oppose  the 
scheme,  and  it  appears  to  the  court  that 
their  opposition  is  reasonable  and  based  on 
due  regard  to  their  own  interests.  In  re 
Somerset  &*  D.  R.  Co.,  21  L.  T.  656,  18  W. 
R.  332. 

A  scheme  of  arrangement  under  the  Rail- 
way Companies  Act,  1867,  which  gives  to 
the  holders  of  debenture  stock  the  right  to 
vote  like  shareholders,  will  not  be  sanc- 
tioned by  the  court.  In  re  Stafford  &*  U. 
R.  Co.,  41  L.  J.  Ch.  777,  20  W.  R.  921. 

A  scheme  for  the  reconstruction  of  a 
railway  company  in  a  ruined  condition, 
which  is  assented  to  by  an  overwhelming 
majority  of  the  debenture  holders,  will  be 
held  by  the  court  to  be  binding  on  the 
minority.  In  re  Tunis  R.  Co.,  22  W,  R. 
639,  30  Z.  T.  512;  affirmed  in  31  Z.  7*.  264. 

The  court  will  confirm  a  scheme  of  ar- 
rangement, under  the  above  act,  which  pro- 
vider that,  upon  the  allotment  of  debenture 
stock  to  the  creditors,  their  debts  and  claims 
shall  be  deemed  satisfied,  to  which  almost 
all  the  outside  crec  .<  tJ  give  their  assent, 
and  the  petition  to  confirm,  which  none  of 
them  oppose,  upon  the  company  giving 
security  to  make  no  allotment  of  the  stock 
to  any  non-assenting  outside  creditors.  In 
re  West  Cork  R.  Co.,  7  Ir.  R.  Eg.  96. 

A  scheme  of  arrangement  of  the  creditors 
with  the  company  will  not  bind  parties  not 
assenting  who  have  recovered  a  judgment 
against  the  company,  and  converted  it  into 
a  statutory  mortgage  under  13  &  14  Vict.  c. 
29.  Stephens  v.  Cork  &*  K.  J.  R.  Co.,  6  Ir. 
R.  Eq.  604. 

And  an  outside  creditor  is  not  affected  by 
a  scheme  of  arrangement  between  a  com- 
pany and  its  creditors.  Stevens  v.  AI id- 
Hants  R.  Co.,  42  L.J.  Ch.  694,  L.  R,  8  Ch. 
1064,  2.  W.R.  858. 

And  debenture  holders  and  unpaid  vend- 
ors of  land  do  not,  by  accepting  debenture 
stock  under  a  scheme  of  arrangement,  lose 
any  priority  which  they  previously  had 
over  an  elegit  creditor,  who  is  not  bound. 
Stevens  v.  Mid-Hants  R.  Co.,  42  L.  J.  Ch. 
694.  L.  R.  8  Ch.  1064,  21   W.  R.  858. 

After  the  enrolment  of  a  scheme  of  ar- 
rangement, the  court  has  no  jurisdiction 


REPAIRERS— REPEAL. 


63 


under  the  Railway  Companies  Act.  1867. 
§§  7.  9.  without  a  bill  being  filed  to  restrain 
an  action  again:.!,  the  company ;  nor  does  a 
judgment  creditor  require  leave  of  court  to 
issue  execution.  In  re  Potteries,  S.  &*  N. 
IV.  R.  Co.,  39  L.J.  Ch.  273.  22  L.  T.  53.  L. 
Ji.  5  Ch.  67. 

A  debenture  holder  is  bound  by  a  scheme 
of  arrangement  under  the  above  ac»  v.'lien 
assented  to  by  three  fourths  in  value  of  the 
debenture  holders,  although  he  has  obtained 
judgment  and  issued  execution  against  the 
company  before  the  filing  of  the  scheme. 
Potteries,  S.  &*  N.  IV.  R,  Co.  v.  Minor,  40 
L.  J.  Ch.  68s,  L.  R.  6  Ch.  621.  19  W.  K.  883. 
25  L.  T.  522. 

The  power  given  by  the  Joint  Stock  Com- 
panies Arrangement  Act,  1870,  §  2,  to  sanc- 
tion a  scheme  of  arrangement  between  a 
company  in  liquidation  and  its  creditors, 
extends  to  debenture  holders  and  other 
secured  creditors,  and  enables  the  court  to 
sanction  a  scheme,  although  it  deprives 
debenture  holders  of  their  security  wholly 
or  in  part.  In  re  Alabama,  N.  O.,  T.&*  P. 
/.  R.  Co.,  [1891]  I  Ch.  213.— Approving  In 
re  Empire  Min.  Co.,  44  Ch.  D.  402. 

In  exercising  the  power  of  sanctioning  a 
scheme  of  arrangement  conferred  on  it  by 
the  above  act,  the  court  will  not  only  ascer- 
Uin  that  all  the  statutory  conditions  have 
been  complied  with,  but  will  also  consider 
whether  the  class  of  creditors  summoned  to 
the  meeting  was  fairly  represented  by  those 
who  attended,  and  whether  the  statutory 
majority  who  approved  of  the  scheme  were 
acting  bona  fide,  or  were  seeking  to  promote 
interests  adverse  to  those  of  the  class  whom 
they  professed  to  represent,  and  generally 
whether  the  arrangemer.t  is  such  as  a  man 
of  business  would  reasonably  approve.  In 
re  Alabama,  N,  0.,  T.  &'P.  J.  R.  Co.,  [1891] 
1  Ch.  213. 

REPAIRERB. 
Risk*  AMumed  by,  see  EmployAs,  Injuries 
TO,  285-292. 


BEPAIB8. 

After  accident,  admissibility  of  evidence  of, 

see  Evidence,  80. 
evidence  of,  see  Employ£s,  Injuries  to, 

071. 
At  farm  croisingft,  liability  for  failure  to 

make,  see  Farm  Crossings,  14. 
Claim*  for  supplies  used  in  making,  when 

prior  to  mortgage,  see  Mortgages,  99* 


Duty  and  liability  of  street  railway  as  to,  see 
Street  Railways,  164-1*19. 

—  of  lessee  to  make,  see  Leases,  etc.,  70. 
receiver  to  make,  see  Receivers,  69. 

—  to  keep  cattle-guards  in  repair,  see  Cat- 

tle-guards, 17. 
Evidence  of  subsequent,  in  action  for  injury 

at  crossing,  see  Crossings,  Injuries,  etc., 

AT.  347. 
Of  bridges,  expenses  of,  see  Bridges,  etc., 

36. 

—  cars,  power  to  bind  company  by  contracts 

for,  see  Station  Agents,  i\. 

—  farm  crossings,  duty  to  make,  see   vkkm 

Crossings,  1 1. 

—  fences,  company's  duty  as  to,  see  Animals, 

Injuries  to,  140-161. 
duty  to  make,  see  Fences,  86-91. 

—  highway    crossings,    see    Crossing    op 
Streets  AND  Highways,  29-40. 

—  machinery,  failure  of  employ 4  to  make, 

when  contributory  negligence,  see  Em- 
PLovfis,  Injuries  to,  360. 

—  property  taken,  evidence  of  cost  of,  see 

Eminent  Domain,  019. 

—  railway  intersections,    see  Crossing   of 

Railroads,  70. 

—  road  and  machinery,  failure  of  vice>princi- 

pal  to  make,  effect  of,  see  Fellow-ser- 
vants, 93-96. 

—  roadbed  or  track,  duty  to  make,  as  to- 

wards passengers,  see  Carriage  of  Pas- 
sengers, 101-179. 

—  steam  roads  in  cities,  see    Streets  and 

Highways,  341-369. 

—  track,  machinery,  etc.,  duty  of  company 

as  to,  see  Employes,  Injuries  to,  143- 
164. 

—  tramways,  see  Tramways,  3. 

—  wharves,  liability  of   owner  as  to,  see 

Wharves  and  Piers,  4. 
Payment  of  claims  for,  by  receiver,  see  Rb* 

ceivers,  86. 
Promise  by  employer  to  make,  effect  of,  see 

EMFLOvis,  Injuries  to,  260-269. 


REPA7IN0. 

Duty  of  street-railway  companiea  as  to,  see 
Street  Railways,  133^163. 


REPEAL. 

Of  charter  provision  exempting  from  taxa- 
tion, see  Taxation,  141,  142. 

—  charters,  see  Charters,  20-47. 

—  condemnation  laws,  see  Eminent  Domain, 

66. 

—  franchise   to  lay  tracks   in  street,  see 
Street  Railways,  20-28. 


nm 


64 


REPLEVIN,  1-3. 


iH 


!! 


Of  limitation  laws,  see  Limitations  of  Ac- 
tions, IS. 

ordinances,  see  Municipal  Corporations, 

16. 

—  proTision  requiring  assent  of  city  to  use 

of  steam  power  in  streets,  see  Streets 
AND  Highways,  05. 

—  statutes,  see  Statutes,  05-00. 

.—  —  before  subscription  is  completed,  see 
Municipal  and  Local  Aid,  04. 

by  implication,  see  Municipal  and  Lo. 

CAL  Aid,  Ol. 

making  stockholders  liable  to  creditors, 

effect  of,  see  Stockholders,  41. 

—  statutory  grant  of  right  of  way,  effect  of, 

see  Public  Lands,  45. 

—  stock  laws,  see  Animals,  Injuries  to,  27, 

28. 

—  tax  laws,  effect  of,  see  Taxation,  01, 

288. 


BEPLEVIN. 

Effect  of,  on  carrier's  lien  for  charges,  see 

Carriage  of  Merchandise,  388. 
Of  goods  carried,  right  to  charges  after,  see 

ClIARGKS,  78. 

—  property  seized  for  taxes,  see  Taxation, 

a»5. 

1.  When  the  action  lies.— A  con- 
signee of  gQO«jS  cannot  maintain  replevin 
against  a  carrier  who  lias  instructions  to 
deliver  ilicni  to  the  consignee  only  upon 
payment  by  him  in  cash  of  an  accompany- 
ing itemized  bill.  Lane  v.  C/iadwick,  32 
Am.  &^  Eng.  R.  Cas.  548.  146  A/ttss.  68,  5 
N.  Eng.  h\p.  562,  \t,N.  E.  Rep.  121. 

If  a  carrier  obtains  possession  of  goods 
wrongfully,  or  without  the  consent  of  the 
owner,  express  or  implied,  and,  on  demand, 
refuses  to  deliver  them  to  the  ownur,  such 
owner  may  bring  replevin  for  the  goods,  or 
trover  for  their  value.  Fitch  v.  Newberry, 
I  Dougl.  (Mich.)  I. 

Replevin  will  not  lie  for  the  mere  deten- 
tion by  a  common  carrier,  of  goods  that 
came  lawfully  into  his  possession.  Wood- 
wards. Grand  Trunk  R.  Co.,  46  A^.  //.  524. 

Where  a  creditor  of  a  consignee  of  goodu 
attaches  them  in  the  hands  of  the  carrier, 
and  at  the  same  time  pays  the  carrier's 
charges,  the  latter  cannot  maintain  re[>lcvin 
for  the  goods,  if  the  attachment  is  valid  on 
iU  face,  on  the  ground  that  it  is  liable  to 
the  consignee.  Where  the  attachment  is 
valid  on  its  face,  it  is  a  protection  to  the 
carrier.  Livingslon  v.  Miller,  48  Hun  232, 
16  A',  y,  S.  R.  71.— Following  Bliven  v. 
Hudson  River  R.  Co.,  36  N.  Y.  403. 


The  owner  of  property  may  institute  re- 
plevin for  the  same  when  it  is  in  the  pos- 
session of  another,  even  though  the  latter 
may  have  wrongfully  mixed  it  with  other 
property  of  a  like  character,  such  as  pork 
and  lard  mixed  with  other  pork  and  lard. 
Great  Western  R.  Co.  v.  Hodgson,  44  U.  C. 
Q.  B.  187. 

2.   and  against  whom.  —  The 

owner  of  hay  agreed  that  another  party 
might  purchase  it  at  a  fixed  price  per  ton, 
to  be  paid  for  when  each  car  was  loaded  (it 
being  intended  for  shipment),  but  that  it 
should  continue  in  the  possession  and  con- 
trol of  the  seller  until  paid  for,  and  in  the 
event  of  a  failure  to  pay  when  each  car  was 
loaded,  it  was  to  be  shipped  in  the  seller's 
name.  In  violation  of  this  contract,  a  car- 
load was  shipped  in  the  purchaser's  name. 
Held,  that  the  owner  might  maintain  re- 
plevin against  the  carrier,  and  the  fact  that 
the  carrier  had  no  notice  of  the  arrange- 
ment between  the  seller  and  purchaser, 
would  not  affect  the  case.  Stone  v.  Wabash, 
St.  L.  6-  P.  R.  Co.,  9  ///.  App.  48. 

The  fact  that  a  common  carrier  has  been 
garnished  by  a  creditor  to  whom  property 
is  consigned  is  no  defense  of  an  action  of 
replevin,  by  the  vendor,  who  has  given 
notice  to  the  carrier  and  demanded  the 
goods.  Chicago,  B.  &*Q.  R.  Co,  v.  Painter, 
15  Neb.  394.  19  A^.  W.  Rep.  488. 

Replevin  cannot  be  maintained  against  a 
freight  agent  for  refusing  to  deliver  goods 
to  the  consignee  until  the  carrier's  charges 
thereon  are  paid,  where  he  does  not  claim 
any  control  or  possession  of  the  goods,  ex- 
cept as  agent  of  the  carrier.  McDougall  v. 
Travis,  24  Hun  (N.  Y.)  590. 

One  who  receives  goods  of  another  who 
has  no  transferable  interest  t^ierein,  having 
notice  of  the  plaintiff's  claim,  can  take  no 
title  which  lie  can  set  up  in  an  action  of  re- 
plevin therefor.  Great  Western  R.  Co.  v. 
Hodgson,^  U.  C.  Q.  B.  187. 

3.  DeniHiid  before  suit— Security. 
—Where  a  connecting  road  is  lawfully  in 
possession  of  cars  which  belong  to  another 
road,  the  road  owning  the  cars  must  show, 
in  order  to  maintain  replevin  for  the  cars, 
that  a  demand  was  made  before  suit  was 
commenced,  which  was  not  complied  with. 
Toledo,  St.  L.  &*  K.  C.  R.  Co.  v.  American 
Refrigerator  Transit  Co.,  41  ///.  App.  625. 

In  replevin  the  sheriff  is  not  bound  to 
take  any  step  in  the  execution  of  the  writ 
until  he  is  made  secure  by  luretiei  and  safe 


REPLEVIN,  4-6.— REPLICATION. 


66 


pledges,  etc.  The  bond  is  a  condition  prece- 
dent. The  service  of  the  writ  on  defend- 
ants as  a  summons  is  void,  and  they  are  not 
bound  to  appear  and  plead.  Taylor  v. 
Adams  Exp.  Co.,  9  Phila.  (Pa.)  272. 

In  replevin  against  one  person  goods 
cannot  be  taken  out  of  the  peaceable  pos- 
session of  another  without  notice  or  de- 
mand. Great  Western  A\  Co.  v.  McEwan, 
28  U.  C.  Q.  B.  528.— Quoting  Mennie  v. 
Blake.  6  El.  &  Bl.  850. 

4.  Pleading.— In  replevin  to  recover 
the  possession  of  a  mule  injured  by  a  rail- 
road company  against  which  the  owner  had 
obtained  judgment  as  for  a  total  loss,  a  plea 
by  the  company  that  the  original  action 
was  for  the  conversion  of  the  mule  is  bad, 
if  it  does  not  allege  a  satisfaction  of  the 
judgment  recovered  for  the  conversion. 
Dffiv  V.  King,  40  Am.  &*  Eng.  R.  Cas.  233, 
52  ArJt.  282,  12  S.  /r.  AV/».  577, 

Where  an  action  to  recover  a  chattel  is 
based  solely  upon  a  wrongful  detention,  a 
general  denial  puts  in  issue,  as  well,  plain- 
tiff's property  in  the  chattel  as  the  wrong- 
ful detention,  and  defendant  under  such  a 
plea  may  show  title  in  a  stranger  although 
he  does  not  connect  himself  with  such  title. 
Griffin  v.  Long  Island  R.  Co.,  \o\  N.  Y. 
348,  4  A'.  E.  Rep.  740,  I  N.  Y.  S.  R.  56,  9 
Civ.  Pro.  84 ;  reversing  34  Hun  632,  mem. 

Where  a  receiver  brings  suit  against  an- 
other company  for  wrongfully  detaining 
cars,  and  there  is  no  allegation  that  the 
taking  was  wrongful,  r  general  denial  puts 
in  issue  the  plaintiff's  title,  and  it  is  compe- 
tent for  the  defendant  to  show  an  outstand- 
ing title  in  a  third  person.  Griffin  v.  Long 
Island  R.  Co.,  loi  A^.  Y.  348,  4  A^.  E.  Rep. 
740,  9  Civ.  Pro.  84,  I  N.  Y.  S.  R.  56 ;  re- 
7'ersing  34  Nun,  632,  mem. 

Pleading  a  writ  of  replevin  by  a  sheriff  as 
a  justification  for  taking  goods,  to  an  action 
of  trespasp,  see  Great  Western  R.  Co.  v. 
McEwan.  28  U.  C.  Q.  B.  528. 

5.  Evidence  —  Burden  of  proof.— 
Where,  in  an  action  of  replevin,  the  defend- 
ant, a  railroad,  pleads  property  in  a  third 
party,  and  the  plaintiff  replies  property  in 
himself,  and  issue  is  thereupon  joined,  the 
onus  is  upon  the  plaintiff  to  prove  to  the 
satisfaction  of  r\ii  jury,  that  the  property  is 
his,  by  a  title  superior  to  the  claim  relied 
on  in  the  defendant's  plea.  McKinzie  v. 
Baltimore  &*  O.  R.  Co.,  28  Md.  161. 

A  shipper  applied  to  a  station  agent  at 
the  place  of  destination  of  the  freights,  but 
7  D.  R.  D.-5 


the  agent  refused  to  deliver  them  without 
an  order  from  the  consignee,  and  the  pay- 
ment of  charges.  This  order  was  procured 
and  the  charges  paid,  when  the  agent  of- 
fered to  surrender  the  goods,  but  imme- 
diately the  sheriff  served  him  with  sum- 
mons in  a  replevin  suit,  and  seized  the 
property.  The  agent  filed  an  answer  deny- 
ing plaintiff's  ownership,  gave  bond,  and 
obtained  a  return  of  the  property.  Held: 
(I)  that  plaintiff  had  no  cause  of  action 
when  the  suit  was  commenced ;  (2)  that  the 
agent  was  not  estopped  by  giving  the  re- 
turn bond  from  showing  that  he  offered  to 
surrender  the  property,  and  thereby  defeat 
the  action,  although  plaintiff  showed  him- 
self to  be  the  real  owner.  Church  v.  Frost, 
3  T.  <^«  C.  (N.  Y.)  318. 

O.  Damages  for  detention.  —  Judg- 
ment for  a  return  of  property  to  the  defend- 
ant, with  damages  for  the  taking,  is  ordered, 
in  an  action  of  replevin,  under  Mass.  Gen. 
St.  ch.  143,  §  13,  only  where  it  appears  upon 
a  nonsuit,  or  upon  a  trial  or  otherwise,  that 
the  defendant  is  entitled  to  a  return  of  the 
goods.  Ware  River  R.  Co.  v.  Vibbard,  1 14 
Mass.  458. 

A  defendant  who  prevents  the  plaintiff 
from  obtaining  actual  possession  of  replev- 
ined  property  is  not  entitled  to  damages 
for  its  detention  ;  and  if  there  has  been 
no  actual  change  of  possession  an  order  of 
r<. •urn  is  not  necessary.  So  held,  where  a 
lot  of  railroad  iron  which  had  been  im- 
ported was  replevied,  and  was  held  in  bond 
in  a  United  States  custom-house,  and  the 
plaintiff  never  obtained  actual  possession 
under  the  writ,  by  reason  of  the  defendant 
refusing  to  deliver  the  warehouse  receipt. 
Ware  River  R.  Co.  v.  Vibbard,  11^  Mass. 
458. 

Where  the  defendant  wrongfully  retained 
certain  railway  bonds  and  the  judgment 
ordered  him  to  restore  them,  the  condem- 
nation against  him  in  default  of  giving  over 
the  bonds  should  be  to  pay  the  actual  value 
thereof  at  the  time  he  got  them,  as  estab- 
lished in  evidence,  and  not  the  par  or  face 
value.  Senecalv.  Hatton,  i  Montr.  L.  R.wi. 


REPLICATION. 

In  action  against  carrier  of  cattle,  tee  Car- 
riage OF  Live  Stock,  141. 

for   lost   of  baggage,    see    Baooaob, 

112. 

on  corporate  bonds,  see  Bonds,  68> 


66 


REPLY— RES  GESTiE. 


M 


i 


^H 


ui 


1  41  I 


?! 


ii 


In  action  on  itock  lubtcription,  see  Subscrip- 
tions TO  Stock,  00. 

Sufidency  of,  in  stock-killing  cases,  see  Ani- 
mals, Injuries  to,  370. 

When  proper,  form,  suflSciency,  etc.,  see 
Pleading,  73-70. 


REPLY. 

Evidence  in,  see  Trial,  50. 
In  condemnation  proceedings,  see  Eminent 
Domain,  365. 


REPORTS. 

Estimating  land  damages  from  time  of  filing, 

see  Eminent  Domain,  4G4. 
In  railway    intersection    proceedings,    see 

Crossing  of  Railroads,  52-57. 
Inspection  of,  see  Discovery,  etc.,  4. 
Of  appraisers,  of  land  damages,  see  Eminent 

Domain,  470. 
review  of,  see  Eminent  Domain,  486. 

—  commissioners,  objections  to,  how  taken, 

see  Eminent  Domain,  OlO. 

—  —  to  assess  damages,  duty  of  court  to 

render  judgment  on,  see  Eminent   Do- 
main, 842. 

—  —  when  appealable  in  condemnation  pro- 

ceedings, see  Eminent  Domain,  883. 

—  company's   employes    as    evidence,    see 

Animals,  Injuries  to,  430 ;  Employes, 
Injuries  to,  688. 

officers  as    evidence,   see   Evidence, 

243. 

—  damages  in    condemnation  proceedings 

generally,  see  Eminent  Domain,  780- 
816. 

—  officers,  admissibility  of,  in  evidence,  see 

Carriage  of  Passengers,  508. 

—  referees,  sufficiency  of  see  Reference,  4. 
^  supreme  court  commissioners,  confirma- 
tion of  see  Elevated  Railways,  24. 


REPRESEITTATION. 
Estoppel  hj,  see  Estoppel,  35. 
Power  of  president  to  bind  company  by,  see 
"resident,  6. 


REPUTATION 
Of  deceased,  proof  of,  on  question  of  dam- 
ages, see  Death  by  Wrongful  Act,  277. 

—  party  for  carelessness,  competency  of  evi- 

dence of,  see  Evidence,  20. 

—  witness,  attack  upon,  see  Witnesses,  40. 


REaUEBTB. 
By  stockholders  that  directors  bring  suit,  see 
Stocicholders,  78,  70,  88,  07,  113, 
127. 


To  charge,  in  actions  for  causing  death,  see 
Death  by  Wrongful  Act,  348-302. 

stock-killing  cases,  see  Animals.  In- 
juries to,  676,  570. 


RESCISSION. 

Of  agreements  to  convey,  see  Vendor  and 
Purchaser,  8. 

—  conditional    subscriptions,  see   Subscrip- 

tions TO  Stock,  107. 

—  construction  contract,  equitable  suit  for, 

see  Construction  of  Railways,  lOl. 

—  contracts  generally,  see  Contracts,  80- 

84. 

—  corporate  bonds  on  ground  of  fraud,  see 

Bonds,  01. 

—  lease,  how  affected  by  part  performance, 

see  Leases,  etc.,  81. 

—  railway-aid  subscriptions,  see  Municipal 

and  Local  Aid,  202. 

—  release,  restoration  of  consideration  on, 

see  Release,  10. 

—  rules  for  government  of  employes,  see  Em- 

ployes, Injuries  to,  430. 
of  company  by  conductor,   see   Con- 
ductor, 6. 

—  sales,  stopping  goods  in  transitu  is  not, 

see  Carriage  of  Merchandise,  602. 


RESERVATION. 
From  grants,  of  lands  held  under  Mexican 

grants,  see  Land  Grants,  40. 
In  behalf  of  grantor  of  deed  of  trust,  see 

Deeds  of  Trust,  lO. 

—  charters,  see  Charters,  74. 

—  conveyances  for  depot  purposes,  see  Union 

Depot  Companies,  O. 

—  deeds,  see  Deeds,  30-48. 

acquirement  of  easements  by,  see  Ease- 
ments, 7. 

—  favor  of  mortgagor,  see  Mortgages,  83. 
Of  easements  to  landowner  in  appraisement 

of  damages,  see  Eminent  Domain,  483. 
grant  of  right    of  way,  see 

Eminent  Domain,  221. 
report  of  commissioners,  see 

Eminent  Domain,  704. 

—  power  to  alter,  amend,  or  repeal  charter, 

see  Chari ERs,  40-47. 

—  right  of  action  by  grantor,  see  Elevated 

Railways,  80. 


RES  OEBTA. 

Doctrine  of,  in  general,  see  Evidence,  170- 

177. 
What  is  admissible  as,  see  Evidence,  76. 
in  actions  for  causing  death,  tea 

Death  by  Wrongful  Act,  243. 
a  part  of,  in  action  against  carrier  of 


RESHIPMENT- RESULTING   TRUSTS. 


67 


paisengers,  see  Carriage  of  Passengers, 

567. 

actions  for  injuries  to  chil- 
dren, see  Children,  Injuries  to,  168. 


RESHIPMENT. 

Effect  of,  to  extinguish  right  of  stoppage  in 
transitu,  see  Carriage  of  Merchandise, 
614. 


RESIDENCE. 

Declarations  as  to,  when  hearsay,  see  Evi- 
dence, 161. 

Necessity  of,  to  perfect  adverse  possession, 
see  Adverse  Possession,  6. 

Of  consignee,  delivery  of  goods  at,  see  Car- 
riage OF  Merchandise,  90,  215. 

—  corporations,  see  Citizenship,  etc.,  4. 

—  defendant,  when  proper  place  of  trial,  see 

Trial,  9. 

—  directors  of  new  company,  see  Consolida- 

tion, 17. 

—  parties,  jurisdiction  as  dependent  upon, 

see  Jurisdiction,  4. 
Place  of,  as  situs  of  property  for  taxation,  lee 
Taxation,  li&7. 


RESIDUE. 

Dimiuution  in  value  of,  when  measure  of 
damages  for  land  taken,  see  Eminent  Do- 
main, 646. 

Of  tract  not  taken,  damages  to,  assessment 
of,  see  Eminent  Domain,  453-457. 

part  of  which  is  taken,  inconvenient 

shape  of,  as  an  element  of  land  damages, 
see  Eminent  Domain,  608. 


RESIGNATION 

Of  arbitrators  in  expropriation  proceedings, 

effect  of,  see  Eminent  Domain,  1271. 
—  superintendent,  see  Superintendent,  6. 

RESISTANCE. 

Of  passenger  to  wrongful  expulsion  from 
train,  see  Ejection  of  Passengers,  62, 
63. 


RESISTING  ARREST. 
ProsecuUom  for,  see  Criminal  Law,  40. 


RES  JUDICATA. 
Doctrine  of,  see  Judgment,  14-31. 
Prior  condemnation  proceedings  as  a  bar,  see 

Eminent  Domain,  348. 
Recovery   by   child   no   bar   to   action  by 

parents,  and  vice  versa,  see  Children, 

Injuries  to,  151,  152. 


RESOLUTION. 

Fixing  directors'  compensation  by,  see  Di- 
rectors, ETC.,  29. 

Granting  right  of  way  through  streets,  see 
Streets  and  Highways,  86. 

Of  directors,  validity  of,  see  Directors,  etc., 
25. 


RESPONDEAT  SUPERIOR. 

Applications  of  the  doctrine,  see  Fellow- ser- 
vants, 73-105. 

to  servants  of  different  depart- 
ments, see  Fellow-servants,  107. 


RESPONSIBILITT. 

For  due  care,  age  as  test  of,  see  Children, 
Injuries  to,  67-74. 


RESTATING. 
Accounts,  see  Accounts,  3. 


RESTAURANTS. 

See  Refreshment  Rooms. 


RESTITUTION. 

Right  of,  where  route  is  abandoned,  see  Emi- 
nent Domain,  082. 


RESTORATION. 

Of  diverted  funds  by  receiver,  see  Reckivers, 
93. 

stream,  see  Waters  and  Water- 
courses, 23. 

—  highway  after  building  steam  road,  see 

Streets  AND  Highways,  176-194. 
construction  of  crossing,  see  Cross- 
ing OF  Streets  and  Highways,  25,  26. 

—  railway  track  after  making  street  cross- 

ing, see  Crossing  of  Streets  and  High- 
ways, 66. 

—  stream  after  construction  of  bridge,  see 

Bridges,  etc.,  22. 

—  street  after  construction  of  street  railway, 

see  Street  Railways,  170-175. 

—  streets   and   highways,  compelling,    see 

Mandamus,  13. 


RESTRICTIONS. 
In  charters  as  to  charges,  see  Charges,  5 
Of  the  taxing  power,  see  Taxation,  6-8. 


RESULTING  TRUSTS. 
When  arise,  see  Trusts  and  Trustbis,  4. 


M 


98 


RETAINING  WALLS-REVENUE,  1-8. 


I   i 


n 


RETAINING  WALLS. 


Cott  of,  u  an  element  of  land  damages,  see 
Eminent  Domain,  U7i>. 


RETIRING  EARTNER. 
Rights  of,  see  Partnership,  8. 

RETJaOSPECTIVE. 
Statutes,  construction  of,  see  Animals,  In- 
juries TU,  15. 


RETROSPECTIVE  LAW. 
Validity  of,  see  Statutes,  10. 


see 


RETROSPECTIVE  STATUTES. 

Regarding  municipal  aid   to  railroads, 
MuNicii'Ai.  AND  Local  Aid,  07. 

When  cure  want  of  assent  of  taxpayers  to 
railway  aid,  see  Municita^  and  Local 
Aid,  103. 


RETURN. 
Of  award  to  court,    see  Arbitration  and 
Award,  22. 

—  collector  of  taxes,  see  Taxation,  200. 

—  elections  as  evidence,  see  Municipal  and 

Local  Aid,  133. 

—  execution  by  sheriff,  see  Execution,  15. 

—  justice   on   appeal,   see  Justice   of  the 

Peace,  10. 

—  service  of  attachment,  see  Attachment, 

etc.,  40. 

—  service  of  process,  see  Process,  45,  40. 

summons,  see  Ejectment,  22. 

To  certiorari,  see  Certiorari,  10. 

in  condemnation  proceedings,  see  Emi- 
nent Domain,  000. 

town-bonding  proceedings,  see  Mu- 
nicipal AND  Local  Aid,  430. 

—  mandamus,  see  Mandamus,  33. 

issued  to  compel  delivery  of  railway 

aid  bonds,  see  Municipal  and  Local  Aid, 
203. 


REVENUE. 

I.  GVBT01C8  DUTIES 68 

n.  IHTEBHAL  REyENTrS 69 

I.  CUSTOMS  DUTIES. 

1.  In  gcnernl.— A  private  act  of  par- 
liament imposed  a  duty  of  two  shillings  per 
chaldron  upon  all  coal  "  imported  and  land- 
ed at  the  town  of  H.,  or  otherwise  brought 
or  delivered  within  the  limits  of  the  town." 


The  act  gave  a  remedy  against  the  ship- 
owner by  distraining  the  ship  and  tackle, 
as  v,v\l  as  the  coals,  in  default  of  payment. 
At  the  time  that  the  act  was  passed  no  coals 
were  brought  into  H.  except  by  sea.  HeM, 
that  coals  brought  into  the  town  by  railway 
were  liable  to  the  duty,  and  that  the  com- 
pany was  primarily  liable  to  pay  the  duty, 
Grea/  Eastern  A'.  Co.  v.  Harwich,  41  Z,.  T. 
533,  3  Ky.  <S^  C.  T.  Cas.  xiii. 

2.  Powers,  duties,  and  liabilities 
of  collector.— The  Act  of  Congress  of 
June  10,  1880,  §  10,  provides  that  where  a 
custom-house  officer  shall  be  notified  of  a 
carrier's  lien  on  imported  goods  for  freight, 
lie  shall  give  reasonable  notice  to  the  par- 
ties claiming  the  lien  before  delivering  the 
goods,  //i/tf,  in  a  suit  by  a  railroad  against 
a  collector  to  recover  freights  alleged  to  have 
been  collected  but  not  paid  over,  that  the 
collector  was  not  liable  for  failing  to  give 
the  statutory  notice.  Cleveland,  C.,C.&^  I. 
li.  Co.  V.  McClung,  28  Am.  &•  Etig.  K.  Cas. 
70,  119  U.  S.  454,  7  Sup.  Ct.  Rep,  262 ;  af- 
firming 1 5  Fed.  Rep.  905. 

The  law  does  not  make  it  the  duty  of 
custom-house  officers  to  collect  freights  on 
imported  goods.  Under  a  custom  that  had 
long  prevailed  at  a  certain  office,  a  deputy 
collector  collected  freights  due  a  railroad. 
The  collector  had  not  been  in  office  long, 
and  neither  knew  of  the  custom,  nor  gave 
any  authority  to  make  this  collection.  Held, 
that  the  collector  was  not  liable  for  the 
amount  collected.  Cleveland,  C,  C.  &•  I.  R. 
Co.  V.  McClung,  28  Am.  <S-  Eng.  R.  Cas.  70, 
119  [/.  S.  454, 7  Sup.  Ct.  Rep.  262  ;  affirming 
15  Fed.  Rep.  905. 

An  order  of  the  treasury  depan  ment  di- 
recting a  collector  of  customs  to  deposit  in 
the  treasury  all  moneys  received  oy  him  is 
equally  obligatory  upon  his  successor.  Ells- 
worth v.  United  States,  14  Ct.  of  CI.  382. 

3.  Compensation  —  Keceipts  for 
storage.— Where  the  owner  of  a  bonded 
warehouse  pays  to  the  collector  Oi  a  non- 
enumerated  port  the  full  salary  of  the  in- 
spectors on  duty  in  the  warehouse  and  he 
properly  accounts  for  the  money,  it  should 
be  allowed  to  him  as  "  receipts  for  storage  " 
in  the  settlement  of  his  accounts  and  in  de- 
termining the  amount  of  his  compensation. 
Ellsworth  V.  United  States,  14  Ct.  of  CI.  382. 

All  moneys  received  by  collectors  from 
the  owners  of  bonded  warehouses  for  half 
storage  of  goods  shipped  by  railroad  and 
while  in  bond,  or  for  the  attendance  of  an 


REVENUE,  4,  6. 


69 


inspector,  shall  be  accounted  for  as  "  receipts 
for  storage  "  and  allowed  to  the  collectors  of 
the  non-enumerated  ports  in  determining  the 
amount  of  their  compensation.  Ellsworth 
V.  United  States,  14  Ct.  of  CI.  3O2.— Fol- 
lowing United  States  v.  Macdonald,  5 
Wall.  (U.  S.)  659;  Carter  7a  United  States, 
6  Ct.  of  CI.  31. 

A  collector  of  customs  is  entitled  to  re- 
tain not  to  exceed  (2000  per  annum  for 
storage  of  imports.  United  States  v.  Mac- 
donald, 5  Wall.  (U.  S.)  659.— Followed 
IN  Ellsworth  V.  United  States.  14  Ct.  of  CI. 
382. 

n.  IHTEBHAL  BEVENUX. 

4.  Tax  on  indebtedness  of  railway 
companies.  —  A  railway  company  exe- 
cuted a  mortgage  to  secure  certain  city 
bonds  issued  in  aid  of  the  road,  and  agreed 
to  pay  a  certain  rate  of  interest  to  the  city 
thereon.  Subsequently  congress  imposed 
a  tax  of  three  per  cent,  upon  money  due  by 
railroads,  and  required  them  to  pay  such 
tax  to  the  government  out  of  the  amount 
due.  The  company  gave  the  city  notice, 
and  paid  the  tax  under  protest.  Held,  that 
tlie  city's  failure  to  proceed  to  test  the  legal- 
ity of  the  tax  would  prevent  its  recovering 
the  amount  from  the  company.  Baltimore 
v.   Baltimore  &*  O.  A\  Co.,  10  IVall.  (U.  S.) 

543- 

The  interest  on  bonds  issued  by  a  city  in 
aid  of  a  railroad,  and  secured  by  a  mortgage 
on  the  road,  is  not  subject  to  federal  taxa- 
tion. United  States  v.  Baltimore  &*  O.  B. 
Co.,  17  IVa/l.  {U.  S.)  322.  —  Approving 
Northern  C.  R.  Co.  v.  Jackson,  7  Wall.  262. 
—  Rkvif.wed  in  United  States  v.  Erie  R. 
Co..  9  Ben.  (U.  S.)  67. 

Act  of  Congress  of  Feb.  8,  1875,  §  19,  pro- 
viding that  corporations,  except  national 
banks,  should  pay  a  tax  of  ten  per  cent,  on 
the  amount  of  their  notes  used  for  circula- 
tion and  paid  out  by  them,  does  not  apply 
to  certificates  of  indebtedness  issued  by  a 
railroad  company  to  its  employes  for  wages, 
though  they  are  made  payable  to  bearer,  and 
transferred  by  the  employes  before  matu- 
rity. Philadelphia  &*  R.  R.  Co.  v.  Pollock, 
19  Fed.  Rep.  401. 

5. on  interest  duo  on  railway 

bonds.  —The  duty  of  five  per  cent,  im- 
posed by  the  Act  of  Congress  of  1864,  §  122, 
upon  railroad  bonds  upon  which  interest  is 
payable,  is  a  tax  upon  the  income  of  the 
bondholder,  and  not  upon  the  interest  cou- 


pons in  the  hands  of  the  company,  though 
the  act  authorizes  the  company  to  deduct 
the  amount  of  the  tax  from  the  interest  and 
pay  it  directly  to  the  government.  Haight 
V.  Pittsburg,  Ft.  W,  6-  C.  R.  Co.,  6  Wall. 
{U.  S.)  15. 

A  railroad  company  paid  to  the  holders  of 
its  bonds  the  entire  amount  of  semi-annual 
interest  accruing  thereon  from  Jan.  i  to 
July  I,  1870.  Held,  that  the  United  States 
rightfully  assessed  against  the  company  a 
tax  of  five  per  cent,  upon  the  amount  so 
paid,  under  the  Internal  Revenue  Act  of 
June  30,  1864,  §  122,  as  amended  July  13, 
1866,  and  Jan.  14,  1870,  which  latter  amend- 
ment continued  the  law  until  Aug.  i,  1870. 
Lahe  Shore  &*  M.  S.  R.  Co.  v.  Rose,  95  U. 
5.78. 

The  tax  on  interest  paid  by  corporations 
under  the  above  section,  as  amended  by  the 
act  of  1866,  is  an  excise  tax  on  the  business 
of  these  corporations,  to  be  paid  by  them 
out  of  their  earnings,  income,  and  profits. 
Michigan  C.  R.  Co.v.  Slack,  100  U.  S  595. 

In  order  to  secure  payment  of  this  tax,  it 
was  laid  by  congress  on  the  subjects  to 
which  these  earnings  were  applied  in  the 
usual  course  of  business  of  such  corpora- 
tions, namely,  dividends,  interest  on  funded 
debt,  construction,  or  some  reserve  fund 
held  by  the  company.  Michigan  C.  R.  Co. 
V.  Slack,  too  U.  S.  595.— Explained  in 
Western  Union  R.  Co.  v.  United  States,  loi 
U.  S.  543.  Quoted  n  United  Slates  v. 
Louisville  &  N.  R.  Co.,  33  Fed.  Rep.  829. 

Such  a  tax  is  not  invalidated  by  the  pro- 
vision that  the  amount  of  it  may  be  with- 
held from  the  dividend  or  interest  going  to 
the  stockholder  or  bondholder,  though  the 
latter  be  a  citizen  or  subject  of  a  foreign 
government,  with  no  residence  in  this 
country.  Michigan  C.  R.  Co.  v.  Slack,  100 
U.  S.  595. — Followed  in  United  States 
7'.  Erie  R.  Co.,  13  Am.  &  Eng.  R.  Cas.  319, 
106  U.  S.  327,  I  Sup.  Ct.  Rep.  223. 

The  Act  of  Congress  of  1870  (16  St.  at  L. 
260),  §  15,  imposed  a  tax  fori87i,"of  two 
and  one  half  per  cent,  on  interest  paid  on 
bonds  or  other  evidences  of  debt  issued 
and  payable  in  one  or  more  years  after 
date," and  on  "all dividends  of  earnings,  in- 
come, or  gains,  ♦  ♦  ♦  and  on  all  undivided 
profits,"  of  any  railroad.  Held,  that  a  com- 
pany was  not  liable  to  the  tax  on  interest 
until  the  interest  was  payable  ;  therefore  it 
was  not  taxable  on  interest  due  and  paid  on 
bonds  Feb.  i,  1872.     Western  Union  R.  Co. 


'f  ??*» 


I 


li 


m' 


!l 


70 


REVENUE,  6,  7. 


V.  Um/ed  Stales,  loi  i/.  5.  543.— Explain- 
ing Michigan  C.  R.  Co.  r.  Slack,  100  U.  S. 
595,  Barnes  V.  Philadelphia  &  R.  R.  Co., 
17  Wall.  309.— FoLLOWEi>  IN  United  States 
I/.  Louisville  &  N.  R.  Co..  33  Fed.  Rep.  829. 

Under  the  Act  of  Congress  of  July  13, 
1866,  a  judgment  for  a  five  per  cent,  tax  on 
interest  paid  m  coin  by  a  railroad  to  its  non- 
resident bondholders,  may  be  a  general 
judgment  for  the  amount  due,  if  rendered 
at  a  time  when  coin  and  currency  are  equal 
in  value,  though  the  statute  provides,  if  it 
is  paid  in  currency,  that  it  shall  be  of  an 
amount  equal  in  value  to  coin.  United 
States  V.  Erie  R.  Co.,  107  I/.  S.  1,  2  Sup.  Ct. 
Rep.  83. 

The  Act  of  Congress  of  July  14,  1870,  im- 
posing a  tax  on  the  interest  on  railroad 
bonds,  was  limited  to  the  year  1871,  and  ap- 
plies only  to  interest  actually  paid,  and  not 
to  interest  merely  payable.  United  States 
V.  Louisville SmN.  R.  Co.,  33  Fed.  Rep.  829.— 
Following  United  States  v.  Erie  R.  Co., 
106  U.  S.  330,  I  Sup.  Ct.  Rep.  223 ;  Mem- 
phis &C.  R.  Co.  V.  United  States,  108  U.  S. 
234,  2  Sup.  Ct.  Rep.  482.  Quoting  Michi- 
gan C.  R.  Co.  V.  Slack,  100  U,  S.  598 ; 
Western  Union  R.  Co.  v.  United  States,  101 
U.  S.  550. 

The  internal  revenue  tax  on  coupon 
bonds  is  payable  by  the  holder,  and  not  by 
the  obligor.  Haight  v.  Pittsburgh,  Ft.  W. 
6-  C.  R.  Co.,  3  Pittsi.  (Pa.)  105. 

O. on  (lividcndM.  —  Under  the  In- 
ternal Revenue  Act  of  1864,  as  amended, 
railroads  are  liable  to  pay  a  five  per  cent, 
tax  on  a  dividend  and  on  a  semi-annual  in- 
stalment of  interest  on  its  bonds,  declared 
after  Jan.  i,  1870,  but  which  accrued  during 
the  six  months  next  prior  thereto.  Barnes 
V.  Philadelphia  &*  R.  R.  Co.,  17  Wall.  (U. 
S.)  294. 

Under  the  Internal  Revenue  Act  of  July 
13,  1866,  §  122,  railroads  are  liable  to  pay  a 
five  per  cent,  tax  on  dividends  declared 
prior  to,  and  payable  after  Jan.  i,  1870;  and 
also  on  dividends  and  semi-annual  instal- 
ments of  interest  declared  and  payable  after 
Jan.  I,  1870,  but  which  accrued  prior  there- 
to. Barnes  v.  Philadelphia  &*  R.  R.  Co., 
17  IFall.  (U.  S.)  294.  — Applied  and  fol- 
lowed IN  Metropolitan  R.  Co.  v.  Slack,  i 
Holmes  (U.  S.)  375.  Explained  in  West- 
ern Union  R.  Co.  v.  United  States,  101  U. 
S.  543- 

Certificates  by  a  railroad  company  to  its 
stockholders  to  the  effect  that  such  stock- 


holders are  entitled  to  eighty  per  cent,  of 
the  stock  held  by  them  with  dividends 
thereon  are  dividends  of  scrip  within  the 
meaning  of  the  Internal  Revenue  Act  ol 
July  13,  1866,  taxing  dividends  in  scrip  01 
money.  Bailey  v.  New  York  C.  &*  H.  R.  R, 
Co.,  22  Wall.  {U.  S.)(X)A,  II  Atn.  Ry.  Rep. 
121.— Followed  in  Bailey  v.  New  York 
C.  &  H.  R.  R.  Co.,  13  Am.  &  Eng.  R.  Cms. 
333, 106  U.  S.  109, 1  Sup.  Ct.  Rep.  62. 

The  act  of  June  30,  1864  (13  St.  at  L.  283), 
as  amended  by  act  of  July  13,  1866  (14  St. 
at  L.  138),  providing  that  income  taxes 
"shall  be  levied  on  the  ist  day  of  May, 
and  be  due  and  payable  on  or  before  the 
30th  day  of  June,  in  each  year,  until  and  in- 
cluding the  year  1870,  and  no  longer,"  does 
not  apply  to  an  internal  revenue  tax  on  the 
dividends  and  earnings  of  a  railway  cor- 
poration, for  the  first  six  months  of  the  year 
1870,  which  is  not  an  income  tax  but  an  ex- 
cise. Metropolitan  R.  Co.  v.  Slack,  i  Holmes 
(U.  S.)  375.— Applying  Philadelphia  &  R. 
R.  Co.  V.  Kenney,  18  Int.  Rev.  Rec.  92. 
Following  Barnes  v.  Philadelphia  &  R.  R. 
Co.,  17  Wall.  (U.  S.)  294. 

Under  the  act  of  1864,  a  dividend  declared 
payable  after  Dec.  31,  1869,  although  for 
earnings  of  the  year  1869,  is  not  liable  to 
the  income  tax ;  and  a  United  States  rev- 
enue-tax collector  cannot  justify  in  an 
action  of  trespass  for  levying  on  the  prop- 
erty of  a  company  for  such  tax.  Philadel' 
phia  &•  R.  R.  Co.  v.  Barnes,  7  Phila.  (Pa.) 

543- 

Under  Act  of  Congress  of  July  14,  1870, 
§  15  (16  St.  at  L.  260),  providing  for  a  tax 
"for  and  during  the  year  1871,"  on  interest 
paid  by  corporations  "  and  on  the  amount  of 
dividends  of  earnings  hereafter  declared  by 
them,"  the  dividends  and  earnings  of  a  rail- 
way corporation  for  the  last  six  months  of 
the  year  1870  are  not  taxable.  Metropolitan 
R.  Co.  V.  Slack,  I  Holmes  (U.  S.)  375.— Ap- 
plying Barnes  v.  Philadelphia  &  R.  R.  Co., 
17  Wall.  (U.  S.)  294. 

7. on  earnings  and  gross  re«> 

ccipts— Undivided  profits.*— The  ex- 
pression "  profits  used  in  construction,"  in 
section  122  of  the  Internal  Revenue  Act  of 
June  30,  1864,  imposing  a  tax  not  only  on 
dividends  of  railroad  and  other  companies, 
but  also  on  profits  used  for  construction, 
does  not  embrace  earnings  expended  in  re- 
pairs for  keeping  the  property  up  to  its 

*  See  also  Taxation,  100. 


REVENUE,  7. 


n 


normal  condition,  but  has  reference  to  new 
constructions  adding  to  the  permanent  value 
of  the  capital ;  and,  when  these  are  made  to 
take  the  phice  of  prior  structures,  it  includes 
only  the  increased  value  of  the  new  over  the 
old,  when  in  good  repair.  Grant  v.  Hart- 
ford &•  N.  H.  Ji.  Co.,  93  U.  S.  225. 

Under  Act  of  Congress  of  June  30,  1864, 
ch.  173,  §  122,  as  amended  by  act  of  July  13, 
1866,  ch.  184,  the  '"irnings  of  a  railroad,  used 
to  pay  interest  or  dividends,  are  taxable 
whether  actual  profits  or  not;  but  earnings 
used  for  construction  or  carried  to  the  ac- 
count of  a  fund,  are  not  so  taxed  unless  they 
represent  the  profits  of  the  company  in  its 
business  as  a  whole.  Lt'ttU  Miami,  C.  &• 
X.  li.  Co.  V.  United  States,  13  Am.  &>  Euff. 
K.  Cas.  330,  108  U.  S.  277,  2  Sup.  Ct.  Rep. 
627. 

A  railroad  in  a  Confederate  state  was 
taken  possession  of  during  the  civil  war  by 
the  military  authorities  of  the  United 
States,  but  the  company  moved  the  rolling 
stock  within  the  Confederate  lines,  and  there 
hired  it  out  to  other  companies,  and  from 
the  rentals  received,  and  which  were  paid 
in  Confederate  money,  dividends  were  de- 
clared. Held,  that  the  company  was  liable 
for  an  income  tax  on  such  dividends,  im- 
posed by  the  act  of  1862 ;  but  after  the  close 
of  the  war  the  company  was  not  liable  for 
such  tax  upon  surplus  earnings  applied  in 
restoring  the  road,  bonds  being  distributed 
to  the  stockholders  in  lieu  of  money. 
Memphis  &*  C.  K.  Co.  v.  United  States  108 
U.  S.  228,  2  Sup.  Ct.  Kep.  482.— F(n,i.owED 
IN  United  States  v.  Louisville  &  N.  R.  Co., 
33  Fed.  Rep.  829. 

Under  the  Act  of  Congress  of  July  i,  1862 
(12  St.  492-3).  and  the  acts  in  addition  to  it, 
plaintiff  in  error  received  from  defendant 
in  error  subsidy  bonds,  which  were  made  by 
statute  a  lien  upon  its  road.  Held,  that,  in 
a  suit  to  collect  an  internal  revenue  tax  on 
the  undivided  net  earnings  of  the  road,  car- 
ried to  a  fund  or  to  construction  account, 
plaintiff  was  not  entitled  to  have  the  inter- 
est upon  these  bonds  deducted  from  its  net 
earnings  before  settling  the  amount  to  be 
subject  to  the  tax,  but  that  the  amount  of 
that  interest,  if  earned  and  carried  to  a  fimd 
or  charged  to  construction,  was  taxable. 
Sioux  City  &*  P.  A\  Co.  v.  United  States,  17 
Am.  &*  Eng.  R.  Cas,  480,  1 10  U.  S.  205,  3 
Sup.  Ct.  Rep.  565. 

Under  the  act  of  July  13,  1866,  §  <)  his, 
a  company  cnqaged  in  the  express  busincs.s. 


and  also  in  transporting  passengers  by  stage 
coach,  which  makes  returns  of  its  gross  re- 
ceipts, under  section  109  of  the  act  of  June 
30,  1864,  and  is  subject  to  pay  duty  thereon, 
under  sections  103  and  104  of  the  last- 
named  act,  is  required  to  declare,  in  such 
returns,  whether  such  gross  receipts  arc 
stated  according  to  their  values  in  legal 
tender  currency,  or  according  to  their  val- 
ues in  coined  money,  and  is  liable  to  pay 
such  duty  according  to  the  values  in  coined 
money  when  reduced  to  their  equivalent 
in  legal  tender  currency.  Wells  v.  Shook, 
8  lilatchf.  {U.  S.)  254. 

The  terms  "  income  or  articles  or  objects 
charged  with  an  internal  tax,"  in  said  sec- 
tion of  the  act  of  1866,  are  comprehensive 
and  include  "gross  receipts"  of  express 
companies  and  "gross  receipts"  of  stage 
proprietors.  Wells  v.  Shook,  8  Blatchf.  {U. 
S.)  254. 

The  depreciation  of  assets  during  a  cer- 
tain period  cannot  be  deducted  from  profits 
earned  during  the  same  period,  in  deter- 
mining the  taxable  profits  of  a  railroad  cor- 
ponition  under  the  Internal  Revenue  Act 
of  June  30,  1864.  United  States  v.  Little 
Miami,  C.  &* X.  P..  Co.,  i  Fed.  Rep.  noo. 

Where  two  railroad  companies  consoli- 
date, and  one  agrees  to  pay  the  debts  of 
the  other,  such  payment  is  not  within  the 
meaning  of  the  internal  revenue  laws,  which 
impose  a  tax  upon  corporate  incomes. 
United  States  v.  Louisville  &•  N.  R.  Co.,  33 
Fed.  Rep.  829.— FOLLOWING  Marquette,  H. 
&  O.  R.  Co.  V.  United  States,  123  U.  S.  722, 
8  Sup.  Ct.  Rep.  319. 

Act  of  Congress  of  1870  provides  that 
there  shall  be  levied  and  collected  during  the 
year  1871  a  tax  of  two  and  a  half  per  cent, 
on  the  amount  of  all  dividends  of  earnings, 
income,  or  gains  hereafter  declared  by  any 
railroad  company,  and  on  all  undivided 
profits  of  any  such  corporation  which  have 
accrued  and  been  earned  and  added  to  any 
surplus,  contingent,  or  other  fund.  Held. 
that  undivided  profits  of  a  company,  carried 
to  an  account  known  as  unexpended  earn- 
ings, and  used  for  construction  purposes, 
were  liable  to  the  tax  imposed  by  the  above 
statute.  United  States  v.  Marquette,  H.  <S- 
O.  R.  Co.,  17  Fed.  Rep.  719. 

The  above  statute  was  intended  to  reduce 
the  tax  on  profits  from  five  per  cent,  under 
the  act  of  1866,  to  two  and  one  half  per 
cent.,  but  was  not  intended  to  remove  from 
snch  reduced   tax  any  part  of  the  profits. 


7« 


REVENUE,  8-11. 


i- 


Vnittd  Statu  v.  Marquittt,  H,  6-  0.  R.  Co., 
17  Ftd.  R<p.  7"9- 
8. oil  receipts  for  carrying  the 

mails.— The  Act  of  Congress  of  1864,  § 
103,  as  amended  July  13. 1866.  provided  tli  t 
"every  ♦  ♦  ♦  corporation  owning  ♦  ♦  ♦  any 
railroad  ♦  ♦  ♦  engaged  or  employed  in  trans- 
porting the  mails  of  the  United  States 
upon  contracts  made  prior  to  Aug.  i,  1866, 
shall  be  subject  to,  and  pay  a  tax  of  two  and 
one  half  per  cent,  of  the  gross  receipts" 
from  such  service.  HeU,  that  a  company 
carrying  the  mails  without  any  express  con- 
tract was  liable  to  pay  the  tax,  where  the 
term  of  service  began  prior  to  Aug.  i,  1866. 
Western  Union  A'.  Co.  v.  Unilid  Stales,  101 
U.S.  543.— Distinguished  in  Eastern  R. 
Co.  V.  United  States,  20  Ct.  of  CI.  23. 

O.  PciialticN  lor  violation  of  inter- 
nal revenue  laws.— Under  the  Internal 
Revenue  Act  of  June  30,  1864,  §  122,  as 
amended  July  13,  1866,  the  only  penalty  for 
which  a  railroad  is  liable  is  that  of  $1000 
provided  for  by  that  section.  Erskine  v. 
Milwaukee  &*  St.  P.  R.  Co.,  94  U.  S.  619.  16 
Am.  Ry.  Rep.  .54. 

The  act  of  July  14,  1870,  did  not  add  to 
the  penalties  imposed  by  the  above  section 
while  it  was  in  force.  Elliott  v.  East  Pa. 
R.  Co.,  99  U.  S.  573. 

Only  one  penalty  is  recoverable  for  all 
failures  to  make  the  returns  required  by  the 
act  of  June  30,  1864,  as  amended  by  the  act 
of  July  14,  1870,  prior  to  *he  commence- 
ment of  the  action  to  recover  the  penalty. 
United  States  v.  Brooklyn  City  &'  N.  R.  Co., 
14  Fed.  Rep.  284.— APPLYING  United  States 
V.  New  York  G.  &  I.  Co.,  8  Ben.  (U.  S.)  269. 

The  penalty  of  one  hundred  per  cent,  on 
reassessment  of  an  internal  revenue  tax, 
under  the  Act  of  Congress  of  March  2,  1867 
(13  St.  at  L.  480),  for  false  and  fraudulent 
omission  of  taxable  property  from  the  re- 
turn to  the  assessor,  cannot  be  lawfully  col- 
lected, if  the  reassessment  includes  a  sum  not 
legally  taxed.  Michigan  C.  R.  Co.  v.  Slack, 
I  Holmes  (U.  S.)  231.  Sec  Michigan  C.  R. 
Co.  V.  Slack,  100  U.  S.  595. 

Under  the  act  of  March  2,  1867,  it  is  a 
prerequisite  to  the  lawful  collection  of  the 
penalty  of  one  hundred  percent,  in  addition 
to  the  internal  revenue  tax,  as  reassessed, 
according  to  that  act,  for  false  and  fraudu- 
lent omission  from  the  return  of  taxable 
property,  that  the  assessor  should  determine 
that  the  omission  was  false  and  fraudulent, 
and  adjudge  the  penalty  to  have  been  in- 


curred.   A  penalty  added  by  the  assessor 

only,  on  the  order  of  his  superior  officer,  and 
not  as  the  result  of  his  own  finding  upon  the 
facts,  is  not  legally  added,  and  cannot  law- 
fully be  collected.  Michigan  C.  R.  Co.  v. 
Slack,  I  Holmes  (U.S.)  231. 

10.  Itentedy  for  Illegal  taxation- 
Set-off.— Where  a  railroad  contpany  has 
paid  an  internal  revenue  tax,  and  sues  to 
recover  it  back  as  illegally  exacted,  the  an- 
nual report  of  the  road  is  proper  evidence 
to  show  that  interest  certificates  were 
merged  in  the  capital  stock,  and  that  divi- 
dends were  paid  on  them  as  on  the  regular 
stock.  Bailey  v.  New  York  C.  &*  H.  R.  R. 
Co.,  22  Wall.  (U.  S.)  604,  llj4m.  Ry.  Rep. 
121. 

Internal  revenue  taxes  illegally  exacted,  if 
paid  under  protest,  may  be  recovered  back 
in  an  action  of  assumpsit,  but  an  injunction 
will  not  lie  to  enjoin  their  collection. 
Barnes  v.  Philadelphia  &•  R.  R.  Co.,  17 
Wall.  (U.S.)  294. 

In  1863  a  company  accumulated  a  fund 
of  $100,000  in  U.  S.  bonds  as  net  earnings. 
In  1867,  by  consolidation  with  another  road, 
it  ceased  to  exist.  By  *he  articles  of  consoli- 
dation this  fund  was  vransferred  to  plaintiff, 
as  a  trustee,  for  the  use  of  the  stockholders 
in  the  first-named  company.  An  assessor  of 
internal  revenue  assessed  on  this  fund  '<a 
the  hands  of  the  trustee,  %s°oo  of  t^.zcs  as 
being  gains,  profits,  aid  income  accrued  to 
the  beneficiaries  in  the  year  in  which  the 
trustee  received  the  fund.  To  make  this 
tax,  the  collector,  the  defendant,  threatened 
to  distrain  the  trustee's  property.  To  avoid 
such  distress,  the  latter,  under  protest,  paid 
the  $5000.  Held,  that  safd  $100,000  was 
not  liable  to  the  tax  of  $5000;  and  that  the 
tax  so  paid  might  be  recovered.  Reynolds 
V.   Williams,  4  Biss.  ( U.  S.)  108. 

In  a  suit  at  law  or  in  equity  by  the  United 
States,  the  defendant  cannot  plead  a  set-off, 
legal  or  equitable,  growing  out  of  independ- 
ent claims  against  the  United  States,  al- 
though such  claims  are  just,  and  have  been 
presented  to  and  rejected  by  the  proper 
auditing'  officers.  United  States  v.  Pacific  R. 
Co.,  4  Dill.  (U.S.)  66. 

11.  Stam PH. —County  bonds  and  cou- 
pons issued  in  1870  and  1871  in  payment  of 
subscriptions  to  railroad  companies  were 
not  required  to  be  stamped  by  the  United 
States  internal  revenue  laws  in  force  at  the 
time  of  their  issue,  being  exempt  from  taxa- 
tion as  otficial  instruments  issued  by  the 


REVENUE,  12,  18.— REVERSION. 


n 


officers  of  any  state,  county,  town,  or  other 
municipal  corporation.  XaUs  County  v. 
DoMglitss,  7  Am.  6-  Eng  R.  Cas.  312,  105 
U.  S  728, 

In  a  proceeding  under  Indiana  Act  of 
March  4,  1863,  to  enforce  a  judgment  of  a 
justice  of  the  peace  against  a  railroad  com* 
pany  fur  killing  stock,  it  is  not  necessary 
that  the  certificate  to  tiie  transcript  of  the 
justice  »UM  have  a  revenue  stamp  on  it. 
To/et/o,  L.  **  /?.  A'.  Co.  v.  Nordyke,  27  Ind. 
95.  -Following  Prather  v.  Pritchard,  26 
Ind.  65. 

12.  Lien  for  taxes  and  liow  en- 
furccd  —  Delay.  —  Under  U.  S.  Rev.  St. 
§  733>  providing  that  "taxes  accruing  under 
any  law  providing  internal  revenue  may  be 
sued  for  and  rncovered,  cither  in  the  district 
where  the  liability  for  such  tax  occurs  or  in 
the  district  where  the  delinquent  resides," 
a  suit  will  not  lie  to  recover  such  tax  in  a 
district  other  than  that  in  which  the  tax  ac- 
crues or  that  in  which  the  delinquent  re- 
sides, altliough  he  may  be  found  and  served 
with  process  therein.  Untied  States  v.  New 
York,  N.  H.  &*  H.  K.  Co.,  10  Ben.  (U.  S.) 

144. 

Under  Act  of  Congress  of  July  13,  1866, 
imposing  certain  taxes,  and  providing  that 
the  amount  of  such  tax  shall  be  a  lien  on  all 
the  property  and  rights  of  property  belong- 
ing to  the  person,  a  demand  of  the  taxes  is 
necessary  to  create  a  lien  ;  and  the  demand 
must  state  the  amount  of  the  tax  and  de- 
mand payment  thereof.  United  States  v. 
Pacific  K.  Co.,  4  Dill.  (U.S.)  71. 

The  United  States  may  maintain  an  action 
at  law,  or  a  bill  in  equity,  according  to  the 
nature  of  the  relief  sought,  to  enforce  a 
lien  for  taxes  due  from  a  railroad  company, 
under  the  internal  revenue  law.  Unitea 
States  v.  Pacific  K.  Co.,  4  Dill.  (U.  S.)  66.— 
Quoted  in  United  States  v.  Pacific  R.  Co., 
I  McCrary  (U.  S.)  i. 

Under  U.  S.  Rev.  St.  §  3186,  the  lien  of  the 
government  for  delinquent  taxes  attaches 
only  to  property  of  the  taxpayer,  owned  at 
the  time  when  payment  of  such  taxes  is 
demanded  ;  and  the  statute  should  be  con- 
strued favorably  to  innocent  purchasers. 
United  States  V.  Pacific  A\  Co.,  t  McCrary 
(U.  S.)  I,  I  Fed.  Rep.  97.— QUOTING  United 
States  V.  Pacific  R.  Co.,  4  Dill.  71. 

It  is  necessary,  in  order  to  establish  and 
enforce  a  lien  for  taxes  under  the  act  of  1864, 
as  amended  in  1866.  that  all  their  prerequi- 
sites be    strictly   complied   with.       United 


Stales  V.  Pacific  R.  Co.,  i  MeCrary  {U.  S.) 
I,  I  Fed.  Rep.  97. 

And  it  is  necessary  that  an  assessment 
return  or  list  of  the  taxes  delinquent  should 
be  had  before,  and  in  addition  to,  the  de- 
mand which  is  the  foundation  of  the  lien. 
United  States  v.  Pacific  R.  Co.,  1  McCrary 
(U.S.)  I,  I  Fed.  Rep.  97. 

Under  the  Acts  of  Congress  of  1866  and 
1870,  it  was  the  duty  of  a  railroad  company 
to  return  to  the  proper  internal  revenue 
officer  the  amount  of  "  income,  profits,  and 
taxes."  //eld,  that  when  no  return  has  been 
made,  a  failure  on  the  part  of  the  govern- 
ment to  demand  such  tax,  or  to  institute 
proceedings  to  recover  the  same  until  1881, 
cannot  constitute  a  bar  to  an  action  to  re- 
cover such  tax,  when  it  does  not  appear  that 
the  delay  has  prejudiced  the  company. 
United  States  V.  Marquette,  //.  «S-  0.  R.  Co., 
17  Fed.  /iep.  719. 

13.  ANHeHHnient.— Under  the  Act  of 
Congress  of  June  30,  1864,  as  amended  June 
13,  1866,  the  recovery  of  a  tax  against  a 
railroad  does  npt  depend  on  a  previous  as- 
sessment, nor,  if  made,  is  it  conclusive  on 
cither  party.  United  States  v.  Philadelphia 
&^  R.  R.  Co.,  1236'.  5.  1 13.  8  Sup.  a.  Rep.  77. 

Under  the  Act  of  Congress  of  1866,  as 
amended  in  1870,  the  amount  expended  by 
a  railroad  company  for  a  piece  of  new  line, 
for  the  purpose  of  shortening  its  tracks, 
properly  belongs  to  expenditures  for  im- 
provements, and  where  paid  from  the  earn- 
ings, should  be  deducted  from  the  amount 
subject  to  taxation.  United  States  v.  Mar- 
quette, //.  6-  O.  R.  Co.,  17  Fed.  Rep.  719. 


REVEE8AL. 
Of  decree  of  foreclosure,  see  Mortcacbs, 

ao3. 

—  judgment  on  appeal,  see  Appeal  anu  Error, 
143. 

On  appeal,  grantingr  amendments  after,  see 
Pleading,  100. 

grounds  for,  see  Appeal  and  Error, 

36-89. 

in  town-bonding  proceedings,  see  Mu- 
nicipal AND  Local  Aid,  432. 

What  errors  are  grounds  for,  see  Eminent 
Domain,  800-020. 

When  proper  on  appeal  in  condemnation  pro« 
eedings,  see  Eminent  Domain,  050. 


REVERSION. 
Of  land  granted  for  condition  broken,  see 

I.ANO  GkaNTS,   is. 


74 


REVIEW-RIGHT   OF  WAY. 


i^ 


!l  1 


i 


Of  Und  on  breach  of  condition  in  deed,  see 

Dmds,  30. 
to  grantor  on  diisolution,  see  Di$solu> 

riON,  ETC.,  iiii» 

owner  on  abandonment  of  route,  see 

Emisknt  Domain,  U»0,  08I. 
Right  of,  to  compeniation  in  England,  see 

Eminent  Domain,  11U1. 
To  abutting  owners  on  abandonment,  see 

Abandonment,  8. 
discontinuance  of  highway,  see 

Stkketsanu  IIigiiwavs,  ho. 


REVIEW. 
Of  actions  against  carrier  of  cattle,  see  Car* 

RIACR  OF  LiVR  SrocK.    102. 

for  injuries  to  children,  see  Children, 

Injuries  to,  lt)0. 

—  amount  awarded  on  appeal,  see  Eminent 

Domain.  025. 

—  arbitration    under    Canadian    expropria- 

tion proceedings,  see  Eminent  Domain, 

—  attachment  suits,  see  Attachment,  etc., 

70. 

—  award  of  arbitrators,  see  Eminent  Domain, 

402. 

—  decisions  of  commissioners  appointed  to 

examine  proposed  route,  see  Location  op 
Route,  1 1 . 
on  demurrer,  sec  Pleadinr,  72. 

—  discontinuance  of  highway  on  certiorari, 

see  Streets  and  Highways,  34. 

—  election  of  directors,  see  Directors,  etc., 

13. 

—  elevated    railway   suits,    see    Elevated 

Railways,  180-10B. 

—  evidence  on  appeal,  see  Eminent  Domain, 

024. 

—  foreclosure  proceedings,  see  Mortgages 

200  .'t03. 

—  judgments    against    receivers,    see    Rb- 

CKIVEKS,    144. 

of  nonsuits,  see  Trial,  83. 

—  justices'   decisions,  see   Justice  of  the 

Peace.  1 1-24. 

—  motion  for  continuance,  see  Trial,  26. 
new  trial,  see  New  Trial,  103. 

—  procedure  under  English  compulsory  pur- 

chase acts,  see  Eminent  Domain,  1201- 
1203. 

—  proceedings  for  construction   of    grade 

crossing,  see  Crossing  of  Streets  and 

Highways,  111. 
laying  out  street  over  railway,  see 

Crossing   of    Streets  and   Highways, 

73. 
■—  —  under  town-bonding  acts,  see  Municipal 

and  Local  Aid,  420-455. 


Of  report  or  award  of  appnUacrt.  see  Emh 

NENT  Domain,  485. 

See  also  Appbal  and  Error. 


BEVISINO  STATUTES. 
Construction  of,  see  Statutes,  53. 


AEVIVAL. 
Of  abated  tuitt,  see  Abatbmbnt,  14-17. 


REVOCATION. 
Of  assent  of  taxpayer*  to  railway  aid,  see 
Municipal  and  Local  Aid,  102. 

—  consent   by  city  to  use  of  streets,  see 

Streets  AND  Highways,  102- 105. 

or  grant  for  right  of  way,  see  Eminent 

Domain,  231. 

—  free  passes,  see  Passes,  O,  7. 

—  land  grants,  see  Land  Grants,  02. 

—  letters  of  administration,  see  Executors 

AND  Administrators,  O. 

—  licenses,  see  License,  12-18. 

—  submission  to  arbitration,  see  Arbitration 

and  Award,  O. 

of  question  of  compeniation,  see 

Eminent  Domain,  1253. 

—  subscription,  see  Subscriptions  to  Stock, 

13. 

—  transfer  of  stock,  see  Stock,  37. 


REWARDO. 

For  the  detection  of  criminals,  see  Criminal 
Law,  2. 


RHODE  ISLAND. 
Operation  of  statute  of,  giving  right  of  action 

for  causing  death,  see  Death  by  Wrong- 

FUL  Acr,  30. 
Statutory  regulation  of  grade  crossings  in, 

see  Crossing  of  Streets  and  Highways, 

03. 
Taking  land  for  streets  and  laying  out  roads 

in,  see  Streets  and  Highways,  20. 


RIGHT  OF  WAT. 
Abandonment  of,  see  Abandonment,  2. 
Acquired  subsequent  to  mortgage,  priority  of 

mortgage  over,  see  Mortgages,  127. 
Acquisition   of,  by  consent   or  conveyance 

from  owner,  see  Eminent  Domain,  lOl- 

232. 
Assessment  of,  for  local  improvement,  see 

Street  Railways.  205. 
Boring  for  oil  on,  by  landowner,  see  Eminent 

Domain,  150. 
Claim  for  rent  of,  when  prior  to  mortgage, 

see  Mortcages,  07. 


RIGHT  OF   WAY,  1. 


TS 


Combttttlble  materiftl  on,  liability  for.  see 

FiKKs,  ff8-72. 
Company  entitled  to,  at  croiting;,  «ee  Cross> 

iNiis,  Injuries,  rtc,  at,  lO,  11. 
Condemnation  of,  for  telegraph  line,  see  Tblk- 

cHAi'ii,  ETC.,  Links,  2. 
Construction  of  grant  of,  see  Denver  &  Rio 

Grande  R.  Co  ,  1. 
Contributory  negligence  in  allowing  accumu- 
lation of  combustible  materiala  on  or 

near,  see  Fires,  121-1!I5. 
Crossing  by  one  railway  of  right  of  way  of 

another,  see  Croskinc  of  RAii.RnAits. 
Cultivation  of,  by  landowner,  see   Eminent 

Domain,  147. 
Cutting  grass  on,  by  landowner,  see  Eminent 

Domain,  14M. 
Donation   or   grant   of,    by   guardian,    see 

Guardian  and  Ward,  1. 
Ejectment  by  company  to  obtain  possession 

of,  see  Ejectment,  10. 
Entry  under  contract  for,  when  bars  eject- 

ment,  sec  Eminent  Domain,  1021. 
Evidence  of  width  of,  see  Fires,  210. 
Gifts  of,  see  Eminent  Domain,  223. 
In  city  street,  leaving  stone  and  earth  out- 
side of,    see   Streets    and    Highways, 

17.1. 
Indemnity  to  company  for  moneys  paid  for, 

see  Indemnity  Honds,  4. 
In  streets,  boundaries  of,  see  Streets  and 

Highways,  125. 
power  of  cities  to  grant,  see  Streets 

and  Highways,  00-81. 
License  to  use  land  as,  see  License.  3. 
Measure  of  damages  for  breach  of  engage- 
ments regarding,  see  Damages,  64. 
in  case  of  voluntary  grant  of.  see 

Eminent  Domain,  050,  OOO. 
Of  elevated  railway,  see  Elevated  Railways, 

20,  4». 
Over  coal  lands,  see  Leases,  etc.,  78. 

—  homestead,  power  of  husband  to  convey. 

see  Homestead.  1. 

—  the  public  lands,  see  Public  Lands,  38- 

40. 
Pasturing  cattle  on,  by  landowner,  see  Emi- 
nent Domain,  140. 
Penalties  for  stacking  hay  or  straw  near,  see 

Penalties,  8. 
Power  of  foreign  corporation  to  condemn, ]see 

Foreign  Corporations,  U. 
personal  representative  to  give  release 

of,  see  Executors  and  Administrators, 

O. 
Presumption  of,  from  undisputed  operation 

of  road,  see  Evidence,  120. 
Recovery   by   personal     representative    of 

money  paid  into  court  for.  see  Executors 

AND  Administratoks,  13. 


Release  of  damagei  for  taking,  see  Riliaib. 

28. 
Reservation  of,  in  deed  of  land,  see  Deeds. 

40. 

privilege  to  mow  or  cultivate  aides  of. 

see  Deeds.  44. 
Right  of  landowner  to  maintain  ejectment 

where  he   has  given  contract   for.  see 

Ejectment,  7. 
tunnel  under,  see  Mines,  etc., 

7.8. 
Second  condemnation  of,  see   Eminent  Do* 

main,  112,  117. 
Specific  performance  of  contracts  to  permit 

Joint  use  of.  see  Specific  r^KKORMANCE. 

14. 
Taking  timber  adjacent  to.  see  Public  Lands, 

23. 
Title  to  buildings  on,  see  Eminent  Domain, 

145. 
Transfer  of.  by  release,  see  Eminent  Domain, 

222. 
Unlawful  use  of,  as  an  element  of  damages, 

see  Eminent  Domain,  722. 
Value  of  buildings  on  as  an  element  of  land 

damages,  see  Eminent  Domain,  081. 
When  exempt  from  taxes,  see    Taxation, 

102. 

—  maybe  mortgaged,  see  Mortgages,  15. 

—  subject  to  execution,  see  Execution.  3. 

taxation,  see  Taxation.  70. 

Who  deemed  trespassers  on.  see  Trespassers, 

Injuries  to,  8. 

I.  0E5EKAL    HATUBB  AHD  HOW  AO- 

QUIBKD 75 

II.  BELATITE  KI0HT8    OF    TR2    COM- 

PAHT  AHD  ADJOIHINO  OWHEBS.  8o 
m.  BIGHTS  AND  DUTT  OF  COHPANT  AB 

T0WABD8  THE  PUBLIC 82 

IT,  JOINT    V8EB    BT    TWO   OB    MOBI 

B0AD8 83 

I.  OENEBAL  NATVBE  AND  ROW  AOQnBED. 

1.  What  Is  a  rlBht  of  way.*  — The 
right  of  way  for  a  railroad  is  an  easement — 
an  interest  in  the  freehold ;  and  it  can  only 
exist  in  grant  or  by  prescription.  East  Ala. 
R.  Co.  V.  Tennessee  &*  C.  K.  K.  Co.,  29  Am. 
<S-  Er^.  R.  Cas.  363,  78  Ala.  274. 

The  term  "  right  of  way "  can  only  be 
understood  as  embracing  the  land  used  as  a 
way  for  the  road,  and  not  such  additional 
ground  as  may  be  used  for  the  convenience 
of  the  railroad,  but  is  not  a  part  of  its  way. 

*  Right  of  way  of  a  railroad  considered  as  an 
easement,  see  note,  I  L.  R.  A.  214.  Same  de- 
lined,  note,  4  A/.  375. 


76 


RIGHT  OF  WAY,  2-4. 


Chicago.  B.  6*  Q.  R.  Co.  v.  Paddock,  75  /"• 
6i6. 

What  shall  constitute  a  right  of  way  for 
a  railroad  is  not  defined  by  law,  but.  like 
any  oth'jreass'nsnt.  it  is  a  subject  of  con- 
tract, and  when  ih*^  contract,  as  to  the 
width  of  the  right  of  way,  is  general  or  am- 
biguous, the  intciiiion  of  the  parties  may 
be  shown  by  parol  evidence  of  their  con- 
tcnipoianeous  .-'cto  and  declarations.  /«- 
dianapol'i  &'  V.  R.  Co.  v.  Rfynolds,  1 16  Ind. 
356.  \()  N.  E.  Kep.  141. 

2.  The  cuiiiimiiy's  title,  and  how 
Hcqiiircd,  generally.*  —  Ill  Act  of  Feb. 
8.  1861,  "  to  perfect  the  title  of  the  purcli.-»s- 
ers  of  the  Pittsburg,  Fort  Wayne  and  Chi- 
cago railroad,  and  to  enable  them  to  form  a 
corporation,"  ji  2,  has  no  reference  to  the 
mode  of  acquiring  the  right  of  way,  and 
does  not  have  any  retroactive  operation  to 
validate  titles  to  right  of  way.  Pittsburg, 
Ft.  IV.  &•  C.  R.  Co.  V.  Reich,  loi  ///.  157. 

A  title  to  a  right  of  way  can  only  be  ac- 
quired (1)  by  condemnation  and  compensa- 
tion in  the  manner  provided  by  law;  (2)  by 
forniiil  deed  of  conveyance  from  'he owner ; 
(3)  by  the  performance  of  some  act  or  pay- 
ment of  some  consideration  by  virtue  of  un 
executory  agreement  enforceable  in  a  court 
of  equity  between  the  owner  and  the  cor- 
poration ;  (4)  by  completing  a  road  over 
lands,  and  thereby  exposing  the  corporation 
to  liability  f(^r  compensation,  when  such 
right  and  liability  arc  provided  by  statute. 
Reattie  v.  Carolina  C.  R.  Co. ,  46  Am.  &* 
F.ng.  K.  Cas.  524,  108  A^.  Car.  425,  12  S.  E. 
Rep.  913. 

When  the  charter  pro /ides  that,  in  the 
absence  of  any  contract,  the  corporation  ac- 
quires title  to  100  feet  on  each  side  of  the 
track,  and  that  if  no  claim  for  damages  is 
brought  in  two  years  from  the  completion 
of  that  part  of  the  road  it  is  barred,  the 
corporation  has  a  valid  title  to  the  right  of 
way  as  its  track  is  completed.  Purifoy  v. 
Richmond  &*  D.  R.  Co.,  46  Am.  &*  Eng,  K. 
Cas.  232,  108  A'.  Car.  100,  12  5'.  £•.  Rep.  741. 

The  payment  of  a  judgment  establishing 
a  right  of  way  '.n  a  railway  company  bars 
the  right  of  the  former  owner  of  the  land  to 


•  Interest  acquired  by  company  in  right  of 
way  where  there  h.-«s  been  neither  conveyance 
nor  condemnation,  see  46  Am.  &  End.  R.  Cas. 
493.  ahsi'r. 

RikHi  o(  way  ly  prescription  over  land  ac- 
quired by  a  railroad  company  from  a  state,  see 
40  Am.  &  Eno.  R.  Cas.  s^a  obsir. 


an  action  based  on  the  proper  use  by  the 
company  of  the  right  of  way,  and  operates 
as  a  dedication  of  the  right  of  way,  with  ali 
its  incidents,  to  the  uses  to  which  the  com- 
pany has  applied  it.  Gulf,  C.  &*  S.  F.  Ji. 
Co.  V.  Donahoo.  59  Tex.  \  28. 

In  1868  plaintiff's  predecessor  in  title 
went  on  lots  and  found  the  road  there,  and 
acquiesced  in  it,  and  verbally  promised  to 
give  the  company  the  right  of  way.  The 
road  had  then  existed  for  eight  years.  Held, 
that  the  company  had  acquired  title  by  limi- 
tation, this  suit  to  recover  the  lots  having 
been  brought  in  1882.  Shepard  v.  Galves- 
ton, H.  &*  H.  R.  Co.,  2  Tex.  Civ.  App.  535, 
22  S.  IV.  Rep.  267. 

The  possession  and  occupation  under  the 
verbal  gift  was  such  adverse  possession  and 
use  thereof  as  would  put  in  operation  the 
statute  of  1  i  m  itations.  Shepard  v.  Galveston, 
H.  &*  H.  R.  Co.,  2  Tex.  Civ.  App.  535,  22 
S.  ir.  Rep.  267. 

3. how   cxtingriilshed  or  lost.— 

The  mere  non-user  of  a  right  of  way  will 
not  extinguish  the  easement,  in  the  absence 
of  advprae  possession  by  the  servient  owner, 
or  of  such  acts  on  the  part  of  the  company 
as  evince  a  clear  intention  to  abandon  the 
right  of  way.  Roanoke  Investment  Co.  v. 
Kansas  City  &*  S.  E.  R.  Co.,  108  Afo.  50,  17 
S.  IV.  Rep.  1000. 

The  title  of  a  railroad  to  a  right  of  way 
once  acquired  cannot  be  lost  by  occupancy 
as  to  any  part  of  it  by  the  lapse  of  time. 
Purifoy  v.  Richmond  &*  D.  R.  Co.,  46  Am. 
&*  Eng.  R.  Cas.  232,  108  A'.  Car.  100,  12  S. 
E.  Rep.  741. 

A  charter  under  Pa.  Railroad  Act  of  1849 
gives  a  company  the  right  only  to  occupy 
the  land  on  which  its  road  may  be  located, 
and  it  is  merely  an  casement,  and  is  not  the 
subject  of  lien  or  sale  under  execution. 
Western  Pa.  R.  Co.  v.  Johnston,  59 /"if.  .St. 
290.— Quoted  in  Be.icon  v.  Pittsburgh,  Y. 
&  A.  R.  Co.,  I  Pa.  Dist.  618;  Hasson  v. 
Oil  Creek  &  A.  R.  K.  Co..  8  Phila.  (Pa.)  556. 

4.  AeqiilNitioii  hy  deed.  —  Where  a 
party  conveys  to  a  company  a  right  of  way 
in  consideration  that  it  will  erect  a  round 
house  and  machine  shops  at  a  certain  point, 
and  build  the  road  to  a  designated  place, 
the  deed  conveying  the  right  of  way  will  not 
1  e  canceled  after  the  ropd  has  been  built, 
jecause  the  company  has  failed  to  perform 
its  part  of  the  contract.  Buckner  v.  Pacific 
&-  G.  E.  R.  Co.,  53  Ark.  \f>,\;  S.  IV.  Rep. 
333. 


RIGHT  OF  WAY,  5. 


77 


A  deed  of  land  for  a  right  of  way,  which 
has  but  one  witness  to  it,  is  not  void  for  all 
purposes,  if  it  is  void  for  any,  and  may  be 
admitted  in  evidence  to  siiow  that  the  com- 
pany  is  not  a  trespasser  in  running  irs  rail- 
road over  the  land.  Downs  v.  Yot^*,  I? 
Gil.  295. 

Where  a  landowner  conveys  a  right  of 
way  with  a  provision  that  the  company  shall 
convey  the  water  of  a  spring  from  one  side 
of  the  track  to  the  other  by  means  of  a  pipe, 
und  the  exact  location  of  the  spring  is 
chanf^ed  by  the  construction  of  the  road,  but 
tlic  company  conveys  the  water  from  a  new 
point  wliere  it  flows  out,  this  is  a  sufficient 
compliance  with  the  condition  of  the  deed 
to  cut  off  a  claim  for  damages.  Chamber' 
lain  V.  lialtimore  <S>«  O.  R.  Co.,  29  Am.  &» 
I-:>ig.  K.   Cat.  533,  66  Afd.  518,  «  Ati.  Rep. 

Where  a  deed  granting  a  right  of  way  to 
a  railroad  company  provides  for  a  forfeiture 
in  case  the  land  ceases  to  be  used  as  a  rail- 
road, defeasance  becomes  operative  and  the 
conveyance  has  no  further  force  or  effect 
when  t!<e  right  of  way  ceases  to  be  used  and 
operated  as  a  railroad  and  is  used  only  for 
the  storing  of  cars.  Hickox  v.  Chicago  5* 
C.  S.  R.  Co.,  94  Afitrh.  237.  53  A',  IV.  Rtp. 
I  '05.  liickox  V.  Chicago  6*  C.  S.  R.  Co.,  43 
Am.  6-  Eng.  R.  Cas.  6t3,  78  Mich.  615,  44 
A',  jr.  Rep.  143. 

A  deed  to  a  railroad  company  organized 
under  the  laws  of  Missouri  does  not  become 
inoperative,  by  virtue  of  section  823  of  the 
Revised  Statutes  of  that  state,  because  the 
road  is  not  built  the  entire  length  of  the 
charter  route  within  the  ten  years  prescribed 
by  the  statute.  Morrill  v.  IVaiash,  S/.  L. 
6-  P.  R.  Co..  36  Am.  <!V*  Eng.  R.  Cas.  425, 
96  Mo.  174.  9  S.  IV.  Rep.  ^57. 

An  instrument  not  under  seal  is  not  ef- 
fectual as  a  deed  to  convey  a  right  of  way. 
BitUtie  V.  Carolina  C.  R.  Co.,  46  Am.  S" Eng. 
R.  Cas.  524,  108  A'.  Car.  425,  1 2  5.  £.  Rep. 
9"3- 

fi. by  grant.— Where  the  owner  of 

land  grants  a  right  of  way  for  a  switch  from 
a  railroad  to  the  land  of  one  of  tliegrantees, 
to  be  used  by  the  grantees  and  others  for 
railroad  and  switch  purposes,  and  the  owners 
of  such  right  of  way  purchase  eighty  acres 
of  land  from  another,  over  a  put  of  which 
the  switch  is  constructed,  so  as  to  reach 
ilie  coal  land  o?  one  of  the  grantees,  the 
grantor  contributing  nothing  to  the  expense 
of  grading  and  bridging  the  tracli  for  the 


switch,  the  right  of  way  becomes  appurte- 
nant to  the  coal  land  of  the  grantee,  to  which 
the  switch  is  constructed.  Koeile  v.  Knecht, 
99  /''•  396- 

A  landowner  granted  to  a  railway  com- 
pany a  right  of  way  across  his  farm,  and  re- 
tained the  title  to  the  land  on  each  side  of 
the  riglit  of  way,  and  he  afterwards,  under 
an  unrecorded  contract  witli  the  company, 
used  two  openings  under  the  road  as  pas- 
sage-ways to  and  from  the  several  parts  of 
his  farm,  and  built  his  fences  so  as  to  leave 
such  ways  open  for  use.  Held,  that  his  user 
of  such  ways  and  fencing  with  a  view  to 
their  use  was  notice  to  a  subsequent  pur- 
chaser of  the  railroad  of  the  possessor's 
rights.  Rock  Island  «S-  P.  R.  Co.  v.  Dimick, 
144  ///. 628, 32  A'.  E.  Rep.  291.—  Following 
Swan  V.  Burlington,  C.  R.  &  N.  R.  Co.,  72 
Iowa  650. 

Where  the  charter  of  a  company  empow- 
ers it  to  settle  with  any  owner  his  claim  of 
damages  for  the  occupation  of  land,  a  grant 
to  the  company,  by  one  of  several  tenants 
in  common,  of  a  right  of  way  as  to  his  in- 
terest over  the  common  estate,  although  it 
passes  no  fee  and  confers  no  right  as  against 
the  other  tenants,  is  nevertheless  valid  and 
operates,  as  to  the  tenant  executing  it,  as  a 
release  of  his  damages.  Draper  v.  Will- 
iams,  2  Mich.  536. 

Under  a  grant  t^  «  -ailroad  company  of 
a  right  of  way  over  clie  grantor's  land,  in 
consideration  of  a  free  pass  to  the  grantor 
to  travel  over  the  road,  the  consideration  is 
a  part  of  tne  purchase  money,  and  the  com- 
pany remains  personally  liable  for  its  ful- 
filment ;  but  a  purchaser  of  the  road  at  a 
foreclosure  sale  is  not  liable  in  damages  for 
a  failure  to  grant  the  pass,  though  the  land 
may  remain  subject  to  a  lien  to  secure  the 
performance  of  the  contract.  Complaint, 
in  an  action  to  rescind  a  grant  of  right  of 
way  by  plaintiff  to  defendant,  on  the  ground 
that  its  execution  was  procured  by  fraudu- 
lent representations  of  defendant's  agent — 
held,  good.  Albits  v.  Minneapolis  &*  P.  R. 
Co.,  40  Minn.  476.  42  A'.  W.  Rep.  394.  Hel- 
ton V.  St.  Louis,  K.  &*  N.  W.  R.  Co.,  25  Mo. 
App.  322. 

A  grant  of  a  right  of  way  "  not  exceeding 
100  feet  i'  width  "  within  which  limit  the 
officers  of  the  company  were  to  "  use  so 
much  of  the  land  as  they  may  deem  neces- 
sary," is  not  an  absolute  grant  of  100  feet, 
but,  until  located,  is  a  floating  right  exer- 
cisable over  any  portion  of  the  land  withia 


-^4!t*i 


78 


RIGHT   OF  WAY,  «,  7. 


I 


the  limit  of  the  width  specified.  The  occu- 
pancy by  the  company  of  a  narrower  strip 
than  100  feet,  and  its  acquiescence  for  years 
in  the  occupation  of  tiie  land  bordering  on 
such  narrower  strip  by  other  grantees,  estop 
them  to  eject  the  occupants  for  the  purptjee 
of  widening  its  actual  riglit  of  way.  Vtris- 
/iiojf  &*  M.  A".  Co.  V.  Barrett,  43  Am.  «S- 
Eng.  K.  Cas    595.  67   Miss.  579,  7  So.  Rep. 

549- 

A  party  who  enters  land  without  right  is 
not  entitled  to  improvtincnts  put  thereon 
as  against  mortgagees.  So  where  a  railroad 
compiiny  constructs  a  track  over  premises 
which  are  mortgaged,  under  a  grant  of  a 
right  of  way  from  the  mortgagors,  it  is  not 
entitled  to  have  the  track  reserved  from  a 
mortgage  sale  of  the  land.  /V/Vv  v.  ffVc- 
hawktit  Ferry  Co.,  31  A'./  Ei/.  31.— Dl.STlN- 
GUisMING  North  Hudson  County  K.  Co.  v. 
Booraein,  28  N.  J.  Eq.  450.— Exi'LAINEIj  in 
Jacksonville,  T.  &  K.  VV.  R.  Co.  v.  Adams, 
28  Fla  f>xi. 

O. by  releasOt— When  a  beneficiary 

under  a  conveyance  of  land  in  trust  to  se- 
cure the  payment  of  debts  owing  by  the 
grantor  permits  a  railroad  company,  of 
which  she  and  her  husband  arc  both  stock- 
holders, to  acquire  by  fee,  and  with  their 
knowledge,  a  right  of  way  over  the  lands, 
the  husband  being  a  director  of  such  com- 
pany, and  as  such  director  negotiating  with 
the  grantor  for  the  purchase  of  such  right 
of  way,  the  purchase  price  of  which  was 
paid  to  such  beneficiary  to  be  a  credit  upon 
her  debt  secured  by  such  trust  deed,  the 
beneficiary  is  charged  with  knowledge  that 
the  company  believed  it  was  acquiring  tlic 
absolute  title  to  tlic  right  of  way,  and  by 
accepting  the  purchase  price  she  releases 
her  interest  as  beneficiary  in  the  trust  as  to 
such  way.  Marv  L**  C.  &*  A'.  Co.  v.  H'inn, 
97  A/a.  495,  12  M.  Rep.  607. 

Under  an  agreement  relinqii  ..g  to  a 
railroad  company  a  right  A  way  100  feet 
wide,  over  a  tract  of  Ijnn  situated  in  two 
sections  of  a  township,  tlic  railroad  to  be 
located  "  on  the  section  line,"  the  company 
will  not  forfeit  Its  right  to  the  land  because 
its  track  is  not  laid  immediately  on  and 
along  the  section  line,  provided  it  is  con- 
structed within  the  limits  of  the  100  feet, 
and  this  strip  embraces  that  line.  Munkers 
V.  Kiinsiu  City.  St.  J.  &*  C.  li.  R.  Co.,  60 
^"•334.9  Am.  Ry.  Rep.  234,— Rkvifwed 
IN  Vermilya  v.  Chicago,  M.  &  St.  P.  R.  Co., 
66  Iowa  606. 


7.  Contracts  to  procure  or  convey, 
Kcncrully.''  —  An  agreement  in  writing, 
executed  by  a  landowner,  to  give  a  right  of 
way  upon  certain  conditions,  the  agreement 
being  placcfl  in  the  hands  of  a  third  party 
not  an  agent  of  the  company,  who  returned 
it  after  the  company  had  failed  of  compli- 
ance, did  not  entitle  the  company  to  the 
right  of  v/ay  without  compensation  there- 
for. Hibbs  V.  Chicago  Cf  S.  If.  R.  Co.,  39 
/mt'ii  340,  9  Am.  Ry.  Rep.  1 80. 

Parlies  who  have  obligated  themselves  by 
contract  to  procure  a  right  of  way  for  a 
railroad  at  their  own  expense,  and  who,  for 
that  purpose,  have  caused  expropriation 
proceedings  to  be  instituted  by  counsel  em- 
ployed by  themselves,  though  necessarily 
in  the  name  <>f  the  company,  are  bound  to 
make  good  tO  the  company  the  amount  of 
a  judgment  rendered  against  it  in  such  pro- 
ceedings for  the  value  of  the  liind  and  inci- 
dent damages,  as  provided  by  La.  Rev.  St. 
§  1 48 1.  St.  Louis  S.  W.  R.  Co,  \.  Jacobs,  44 
La.  Ann.  922,  11  So,  Rep.  571. 

Where  the  railroad  bed  has  been  con- 
structed before  trial  of  the  expropriation 
proceeding,  if  it  appears  that  part  of  the 
damages  allowed  result  from  faulty  construc- 
tion, defendants  will  not  be  bound  therefor  ; 
but  when  the  pleadings  exhibit  no  such 
issue,  and  the  opinion  and  judgment  n'fer 
to  none  such,  it  will  be  presumed  that  the 
damages  allowed  were  only  those  inciflcnt 
to  the  expropriation.  St.  Louis  S.  IV,  R. 
Co.  V.  Jacobs,  44  Lii,  Ann,  922,  1 1  So.  Rep. 
571. 

A  contract  giving  to  the  lessees  <jf  plain- 
tills'  quarries  a  right  to  lay  a  railroad  track 
or  switch  across  plaii.i  fTs'  land  to  reach  the 
quarries  in  order  to  iraiisnort  their  products 
to  market-  A*"/!/,  not  to  authorize  the  la_\  ing 
across  plaintiffs'  land  of  a  railroad  track, 
part  of  a  long  line  of  an  ordinary  commer- 
cial railroad  for  general  business,  not  going 
to  the  quarries,  but  passing  at  a  distance. 
Shoemaker  v.  Cedar  Rapids,  /.  /•'.  (s*  A'.  W. 
R.  Co.,  45  Minn.  366,  48  A'.   W.  Rep.  191. 

A  railway  company,  entitled  by  contract  to 
a  deed  for  a  definite  strip  of  ground  for  a 
right  of  way,  completed  its  track  along  said 
strip,  near  its  center ;  and  was  in  actual  pos- 
session and  useof  sud  track.  Held,  that  such 

•  Contr.icis  for  right  of  way,  sec  note,  2<;  Am. 
&  F.NO.  R.  Cas.  548. 

Agreements  for  pass  over  road  in  rnniiidera- 
(ion  lit  K''>nl  of  rJKht  of  way.  Puad  chanKiiiK 
hands,  sn  51  Am    it  F.vo    K.  Cas.  3^1,  nhsti. 


RIGHT  OF   WAY,  8,0. 


19 


possession  included  so  much  (rround  (not 
adversely  held  by  another),  u|)on  either  side 
of  said  track,  as  was  reasonably  necessary  for 
the  convenient  use  and  maintenance  of  the 
railway,  in  the  customary  mode,  and  was 
constructive  notice,  to  a  subsequent  pur- 
chaser, of  tiic  actual  equitable  title  of  the 
rail«  1;  D,iy  v.  New  York,  P.  &*  O.  A". 
Co.,  io  Atn.  &*  Eng.  R.  Cas.  359,  4'  Ohio  St. 

392- 

8.  Their  validity.— Certain  individuals 
entered  into  a  contract  under  soul  to  furnish 
a  railroad  l  'uj  •\\,  at  their  own  expense,  a 
right  of  way  and  certain  other  lands  for 
purposes  of  the  road,  on  condition  that  tiie 
company  would  maintain  its  principal  place 
of  business  at  a  certain  place,  and  should 
not  t'ssli!  a  ;ide  track  to  a  certain  town. 
Held,  ihic.  ',,4;  provision  relating;  to  the  side 
track  was  void  as  against  public  policy,  and, 
as  the  contract  was  not  separable,  the  whole 
of  it  was  void.  Pueblo  &*  A.  V.  A'.  Co. 
V.  TrtyAir.  6  Am.  <S-  Etig.  A'.  Cas.  474,  6 
Colo.  I,  45  Am.  Rep.  512. 

And  a  contract  made  with  officers  of  a 
railroad  company,  acting;  in  their  individual 
capacity,  to  induce  them  to  establish  a  road 
«t  a  given  point  for  the  purpose  of  pro- 
moting the  private  advantage  of  the  con- 
tracting parties,  is  against  public  policy,  as 
tending  to  sacrifice  the  interest  r>f  stock- 
holders and  of  the  public,  and  wii^  nut  be 
enforced  in  equity.  Destor  v.  IVathen,  60 
///.  138.     Limhr  v.  Carpenter,  62  ///.  309. 

Twenty  [icrsons  entered  into  a  contract 
directly  with  a  railroad  company,  whereby 
they  agreed  to  furnish  a  right  of  way  llirougli 
the  county  if  the  company  would  locate  its 
road  on  a  certain  line.  Held,  that  the  con- 
ti'Kt  was  not  void  as  against  public  policy. 
Pixiey  V.  Gould,  13  ///.  A  pp.  565. 

And  where  such  a  contract  is  made,  and 
one  of  the  contracting  parties  ^Kcupies  a 
fiduciary  relationship  to  the  company,  such 
as  director,  or  stockholder,  and  it  isetuorcd 
into  for  the  purpose  of  promoting  his  own 
private  advantage,  it  will  not  be  enforced. 
Full  ■•  v.  Dame.  18  Pick.  (Man.)  472.  Hoi- 
laday  v.  Patter  ion,  5  Oreg.  177. 

O.  IllKlit  of  action  for  brenoli.— An 
agreement  of  a  railroad  company,  in  consid- 
eration of  a  right  of  way  through  one's 
lands,  so  to  build  its  roadbe<l  as  to  protect 
the  lands  from  ovcrflovr,  imposes  upon  it,  as 
an  artificial  person,  a  personal  obligation, 
for  a  breach  of  whicli  it,  or  a  company 
afterwards  cun»ulidated  with  ii,  will  be  lia« 


ble  to  an  action  at  law  for  damages. 
Sappington  v.  Little  Rock,  M.  R.  6-  T.  R. 
Co.,  1 1  Am.  (S-  Eng.  R.  Cas.  330,  37  Ark.  23. 

Several  persons  signed  a  writing  in  which 
they,  among  other  things,  proposed  to  secure 
the  right  of  way  for  the  extension  of  a  rail* 
road,  free  of  expense  to  the  corporation,  and 
to  obtain  the  legislation  needful  to  carry 
out  the  proposed  plan.  The  corporation  ac« 
cepted  tiie  proposal,  having  at  the  time  no 
authority  to  extend  its  railroad,  but  subse> 
quently  obtained  authority.  Such  persons 
afterwards  agreed  in  writing  that  it  might 
go  forward  and  secure  the  right  of  way 
without  prejudice  to  the  rights  of  either 
party  ;  and  thereupon  it  purchased  the  right 
of  way.  Held,  in  an  action  by  the  corpora- 
tion against  the  signers  for  their  failure  to 
secure  the  riglit  of  way,  that  the  contract 
was  lawful,  and  that  the  burden  of  showing 
that  defendants  were  unable  to  secure  the 
right  of  way  was  upc^i  them.  A'ew  Haven 
<S*  A^.  Co.  V.  Hayden,  107  Mass.  525.— 
Quoting  Scottish  N.  E.  R.  Co.  v.  Stewart, 
3  Macq.  H.  L.  Cas.  382  ;  Mayor,  etc.,  of 
Norwich  v.  Norfolk  R.  Co.,  4  El.  &  Bl.  397. 

Where  a  company  has  agreed,  in  consid- 
eration of  a  grant  of  right  of  way,  to  erect 
and  maintain  a  water  tank  upon  the  land  of 
the  proprietor,  to  be  supplied  with  water 
from  an  elevted  spring  thereon,  which 
should  be  u:ed  by  the  company  and  for 
which  the  owner  should  be  paid  the  com- 
pensation usually  paya  le  for  such  a  priv- 
ilege, a  lien  exists  up.jii  the  right  of  way 
granted  for  the  payment  of  such  sum,  and 
an  action  will  lie  agai.i'jt  the  receiver  of  the 
coinpany,  under  Tex.  Gen.  I^aws,  1887,  p. 
121,  §  I  J,  that  "all  judgments,  claims,  •r 
causes  of  action  when  determined,  existing 
against  any  corporation  at  the  time  of  the 
appointment  of  a  receiver,  shall  he  paid 
out  of  the  earnings  of  s.'ch  corporation 
while  in  the  hands  of  the  receiver  ♦  ♦  * 
and  the  same  shall  be  a  lien  upon  such 
earnings."  Howe  v.  Harding,  42  Am,  &* 
Eng.  R.  Cits.  I,  76  Tex.  17,  135.  IV.  Rep.  41. 
—  Reviewed  in  I3rown  v.  Warner,  78  Tex. 

543- 

The  company  or  the  receiver  repudiat- 
ing the  contract  for  the  payment  for  the 
monthly  water  service  will  be  liable  for  iiie 
purchase  money  for  the  right  of  way,  as  well 
as  for  compcnsaticjn  for  work  and  maieri;d 
furnished  to  convey  the  water  to  the  tank. 
Howes.  Hifding,  42  Am.  &*  Eng.  R.  Cas.  1. 
•jb  t'tx,  17,  13  i.  ;f ,  AV/.  41. 


m 


T'^ssB 


80 


RIGHT  OF  WAY,  10-13. 


Piaintifl  entered  into  a  contract  agreeing 
to  convey  a  strip  of  land  to  a  railroad  com- 
pany ;p  fee  simple,  provided  the  company 
should  not  mteriere  with  a  certain  mill 
owned  by  piaintifl,  or  lay  the  track  nearer 
than  seven  rods  from  the  mill.  //eM,  that 
the  company,  by  accepting  the  contract  and 
the  grant  under  it,  was  bound  by  its  terms, 
and  was  liable  in  damages  for  interfering 
with  the  mill  structure,  or  for  building 
within  the  prescribed  distance.  Hutchimon 
V.  Chicago  Sf  N.  VV.  A'.  Co..  37  IVis.  582. 

In  such  case  the  fact  that  piaintifl  cove- 
nanted to  jjrant  a  right  of  way  over  a  larger 
tract  of  lai>d  than  he  owned  might  make 
him  liable,in  damages,  but  could  not  d'^feat 
an  action  by  him  for  a  breach  of  the  con- 
tract on  the  part  of  tiic  company.  I/uU/i- 
inson  v.  Chicago  &^  N.  W.  A\  Co.,  41  U'is. 
541  \  former  appeal  y]  Wis.  582. 

10.  Spuciliv  pvri'oriiiaiice.— R.,  who 
had  agreed  to  grant  a  right  of  way  over  his 
land,  after  the  construction  of  the  road, 
brought  ejectment  for  the  land  so  taken, 
and  also  sued  in  trespass  for  damages,  and 
afterwards  dismissed  tiiese  actions  upon  the 
greement  of  the  company  operating  the 
road  to  make  a  cattle  pass,  the  cost  of 
w  .'ch  was  to  go  in  reduction  of  the  owner's 
(I  i'lages;  and  the  pass  was  constructed  ac* 
cn.dingly.  Heiit,  on  bill  for  specific  pcr- 
^crmance  by  the  company,  and  to  enjoin 
ihe  prosecution  of  an  action  of  ejectment 
for  the  possession  of  the  land,  that  it  would 
be  inequitable  to  allow  R.  to  rcc(jver  the 
possession  of  the  right  of  way, after  inducing 
the  company  to  incur  this  expense  solely 
for  his  benefit,  and  after  his  election  to  take 
damages  instead  of  the  possession  of  the  land. 
A\>s!  V.  Chicago,  B.  &*  Q.  A'.  Co.,  77  ///.  127. 

Defendant  having  entered  into  an  agree- 
ment to  sell  plaintifTs,  a  railroad  corpora- 
lion,  '•  the  land  they  might  take  on  the 
northerly  side  of  the  M.  turnpike,  adjoining 
T.'s  land,  at  twenty  cents  per  square  foot, 
for  each  and  every  foot  so  taken  by  said 
company,"  and  plaintiffs  having  brought  a 
bill  in  equity  for  specific  performance— 
he/ti,  that  the  agreement  was  not  for  a  sale 
of  the  land  generally,  or  of  sucii  part  of  it 
as  plaintiffs  might  elect,  or  of  such  as  they 
should  accept  the  ofTer  of ;  but  for  the  sale 
of  such  a  part  of  the  land  described  as 
plaintiffs  might  take  in  the  exercise  of  the 
authority  conferred  on  them  by  law  to  take 
land  for  tiieir  road  Boston  &•  M.  A.  Co, 
V.  Babcock,  3  Cmh.  (Mass.)  228. 


n.  BIIATITE  BIGHTS  Of    THX   OOMFAKT 
AHD  ADJOIHIHO  OWMIBB. 

1 1.  RifflitM  of  the  company,  gener- 
ally.—Where  a  hedge  planted  by  the  owner 
on  his  land  is  suffered  to  grow  over  the 
right  of  way  of  a  railway  so  as  to  obstruct 
it,  the  company  will  have  the  right  to  trim 
such  hedge,  doing  no  unnecessary  damage; 
and  such  act  will  not  constitute  a  purchase 
of  the  hedge.  Toledo,  W.  Sf  W.  R.  Co.  v. 
Green,  67  ///.  199. 

The  conveyance  of  a  strip  of  land  to  a 
railway  company  will  not  give  the  grantee 
the  right  to  make  any  use  of  it  which  would 
injuriously  affect  the  remaining  land  of  the 
grantor.  The  law  annexes  \.he  condition 
that  the  r-.vnerof  land  shall  so  i^se  it  as  not 
to  produce  injisry  to  another.  Wylie  v. 
^wooii,  134  ///.  281,  25  v.  E.  Rep.  570. 

A  railroad  compaiiy,  after  having  ob- 
tained the  right  of  way  for  its  road,  is  en- 
titled to  the  exclusive  possession  of  such 
way,  and  standi  to  adjoining  proprietors 
(where  no  statute  has  changed  the  relation) 
in  the  common  relation  existing  b:tween 
proprietors  of  lands  bordering  on  each 
other.  Williams  v.  New  Albany  &*  S.  R. 
Co.,  $  Ind.  III. 

The  right  of  a  railway  company,  after 
having  constructed  its  roadbed,  to  make 
such  changes  in  it  as  experience  may  des- 
ignate as  proper,  is,  of  necessity,  a  continu- 
ous one.  Moss  v.  St.  Louis,  I.  M.  &*  S,  R. 
Co.,  85  Mo.  86. 

The  character  of  a  railroad  company's 
right  to  its  track,  and  whether  stock  on  the 
road  are  trespassing,  depend  upon  the  deed 
or  other  instrument  under  which  the  right 
of  way  was  acquired.  Joyner  v.  South  Caro- 
lina R.  Co.,  29  Am.  6-  Eng.  R.  Cas.  258,  26 
So.  Car.  49,  I  S.  E.  Rep.  $2. 

12.  What  title  or  liitereHt  remains 
in  the  landowner.  —  The  grant  of  a 
right  of  way  being  the  grant  only  of  an 
easement,  the  owner  of  the  fee  remains  the 
owner  of  springs,  streams,  and  minerals. 
Subject  to  the  use  of  the  right  of  way,  he  may 
make  all  lawful  use  of  the  land.  Smith  v. 
Holloway,  46  Atn.  &*  En^.  R.  Cas.  495.  H4 
Ind.  329.  24  iV,  E.  Rep.  886. 

1:1.  Hiilldini;  additional  tnacks.— 
A  railroad  company  having  power  to  take 
land  for  a  double  track,  built  a  single-track 
line  through  plaintiff's  lands,  and  took  a 
release,  which  contain<:d  no  description,  and 
put  upon  the  plaintiff  the  duty  to  build  and 
maintain  tiic  fences.    He  built  '.he  fences 


!l 


RIGHT   OF  WAY,  14-20. 


81 


immediately,  and  maintained  them  for  a 
long  term  of  years.  Htld:  (i)  that  a  pre- 
sumption arises  that  the  right  of  way  is 
limited  to  the  strip  of  land  so  fenced,  and 
unless  this  presumption  is  rebutted,  the 
railroad  cannot  encroach  beyond  the  fences 
for  the  purpose  of  building  an  additional 
track  without  making  comp»*nsation  to 
plaintiff ;  (2)  that  mere  proof  that  soon  after 
the  road  was  built  the  president  reported  to 
the  stockholders  that  the  right  of  way  for 
a  double  track  iiad  been  secured  for  the 
whole  line  will  not  rebut  this  presumption. 
Westchtsler  &•  P.  J{.  Co.  v.  Goddard,  (Pa.)  33 
Am.  &'Eng.  P.  Cas.  195.  13  At/.  Pep.  214. 

14.  Construction  of  caUlc  pasH.— 
A  contract  with  a  company,  embodied  ii>  a 
deed  for  a  right  of  way.  provided  for  the 
construction  of  a  cattle  ptss  by  the  com- 
pany, but  fixed  no  time  thci^for.  Held,  that 
the  company  had  a  reasonable  '.imc  after 
the  completion  of  the  road.  Ln'iiii^ston  v. 
Imva  Midland  P.  Co.,  35  Itnva  555,  5  Am, 
Py.  Pep.  166. 

15.  Crossing  line  with  rhh  niiiiiis.— 
The  act  of  assembly  incorponiting  natural 
gas  cv^mpanies  confers  upon  any  railroad 
conipary  whose  line  the  gas  company  de- 
sires to  cross  the  r.glit  to  direct  in  what 
manner  it  shall  be  done,  provided  such  di- 
rection be  reasonable.  If  the  plans  and  re- 
quirements submitted  are  not  unreasonable, 
the  (outt  should  require  them  to  be  adopted. 
Pidi;zv(ty  L.  d'  //.  Co.  v.  Pennsylvania  P. 
G\,  18  P/iil,i.  (P.;.)ryoi. 

10.  Cuttini;  ice.  —  By  acquiring  an 
easement  in  the  lands  of  anotlior,  for  a 
right  of  way,  a  railroad  company  takes  no 
right  to  ice  which  may  form  within  the 
limits  of  the  right  of  way.  Such  ice  is  the 
property  of  the  owner  of  the  land.  Jtdien 
V.  U'oodsntall,  82  fnd.  568. 

17.  DlKKing  wcllii.— A  railroad  com- 
pany, to  which  is  deeded  "  the  right  of  way 
over  and  through  the  land  for  ail  purposes 
connected  with  the  construction,  use,  and 
occupation  of  its  railway,"  has  the  legal 
right  to  dig  a  well  upon  such  right  of  way, 
and  to  use  the  water  supplied  by  percola- 
tion for  railway  purposes,  although  such 
use  may  materially  diminish  the  supply  of 
water  in  a  spring  upon  the  grantor's  land. 
Ilnuiian  V.  Milwaukee  &*  St.  /'.  A'.  Co.,  35 
hrwti  558.  2  Am.  Py.  Pep.  43. 

18.  ICrcctiiii;  iMilldliiKH.  —  Land  ac- 
quired by  a  railroad  company  for  a  right  of 
way  may  be  used  by  it  in  any  manner  which 

7  D.  R.  D.— 6 


contributes  to  the  efficient  operation  of 
its  road,  and  which  does  not  interfere  with 
the  property  rights  of  adjacent  landowners. 
In  this  case  the  use  of  a  right  of  way  for 
the  erection  of  a  freight  depot  was  held  not 
to  be  a  misuser.  Ely  ton  Land  Co.  v.  South 
&»  N.  Ala.  P.  Co.,  51  Am.  &>  Eng.  P.  Cas. 
371,  95  Ala.  631,  10  So.  Pep.  270. 

A  railway  company  has  the  right  to  erect 
on  its  right  of  way  any  building  necessary 
for  its  use  and  convenience  in  carrying  on 
its  business,  and  it  has  a  right  to  remove 
it  when  its  interest  so  requires.  Gudger  v. 
Pichmond  &*  D.  P.  Co.,  43  Am.  &*  Eng.  P. 
Cas.  606,  106  A'.  Car.  481,  11  5.  £.  Pep.  515. 
—Following  Western  N.  C.  R.  Co.  v. 
Deal,  90  N.  Car.  110. 

A  statute  prohibiting  a  railway  company 
from  erecting  buildings  upon  its  right  of 
way,  except  at  certain  places  and  for  certain 
purposes,  is  for  the  protection  of  the  land- 
owner, and  has  no  application  to  cases  in 
which  the  company  owns  an  estate  in  fee. 
Calcasieu  Lumber  Co.  v.  I/arris,  43  Am.  6- 
Eng.  P.  Cas.  570,  77  Tex.  18,  13  .S.  ir.  Pep. 

453- 

10.  Lateral  stipport.—  Plaintiff  con- 
veyed a  piece  ' '  land,  not  a  part  of  the 
company's  right  of  way,  "  for  material,"  to 
have  and  to  hold  "  for  the  i;ses  and  pur- 
poses of  said  railroad,  and  for  no  other  or 
different  purposes."  In  removing  the  ma- 
terials the  company  excavated  to  a  consider- 
able depth,  so  as  to  cause  plaintiff's  adjoin- 
ing land  to  ca\c  in.  Held,  that  he  was  not 
entitled  to  lateral  support,  and  was  not 
entitled  to  recover  damages  caused  by  his 
land  caving  in.  Ludlow  v.  Hudson  Piver 
P.  Co.,  4  Hun  (N.  V.)  239,  6  T.  6m  C.  420. 

20.  lloniovinur  Nnii(l«  Hoil,  or  liny.*— 
Plaintill  conveyed,  by  a  quit-claim  deed,  a 
right  of  way  over  certain  l.ind.  "  for  all  pur- 
poses connected  with  the  construction,  use, 
and  occupation  of  said  railway."  Held, 
that  this  did  not  authorize  the  conjpany  to 
take  sand  therefrom  for  the  construction  of 
a  round  house,  without  compensation.  V^er- 
milya  v.  Chitai^o,  M.  &*  .SV.  P.  P.  Co.,  23 
Am.  &*  Kiig.  P.  Cas.  108,66  loJi'a  606,  24  A^. 
W.  Pep.  234.— Rkconcilino  Chapin  ?/.  Sul- 
livan R.  Co.,  39  N.  II.  564.  Reviewing 
Boston  Gas  Light  Co.  v.  Old  Colony  &  N.  R. 
Co.,   14  Allen  (Mass.)  444;  Taylor  v.   New 


•  RiBht  of  company  to  remove  soil  from  right 
of  way  for  purposes  oiher  than  constructing 
railroad,  see  43  Am.  &  Encj.  R.  Cas.  576,  abttr. 


m 


f\ 


82 


RIGHT  OF  WAY,  21-24. 


,1 


York  &  L.  B.  R.  Co..  -H  K  J.  L.  28;  New  York 
&  C.  R.  Co.  V.  Gunnison,  I  Hun  496  ;  Has- 
son  V.  Oil  Creek  &  A.  R.  R.Co.,8  Phila.  (Pa.) 
556 ;  Munkers  v.  Kansas  City,  St.  J.  &  C.  B. 
R.  Co.,  60  Mo.  334 ;  Smith  v.  Chicago,  A. 
&  St.  L.  R.  Co.,  67  111.  191 ;  Hurd  v.  Rut- 
land &  n.  R.  Co.,  25  Vt.  116;  Connecticut 
&  l\  R.  R.  Co.  V.  Holton.  32  Vt.  43 ;  Troy 
&  B.  R.  Co.  V.  Potter,  42  Vt.  265  ;  Burnett 
V.  Nashville  AC.  R.  Co.,  4  Snecd  (Tenn.) 
528;  Chicago  &  M.  R.  Co.  v.  Patchin,  16 
III,  198  ;  M  anger  v.  Tonawatida  R.  Co.  4  N. 
V.  349.— Rkviewei)  in  Biakely  v.  Chicago, 
K.  A  N.  R.  C'..,  34  Neb.  284. 

Bui  in  such  case  the  landowner  may 
take  sand  from  the  right  of  way,  so  long  as 
he  does  not  interfere  with  the  use  of  ihc 
land  for  railri  "^d  purposes ;  therefore  the 
company  cannot  set  up  as  a  counterclaim 
that  plaintiff  has  taken  sand  himself.  Ver- 
milya  v.  CAtan^o.  M.  <S-  St.  P.  A'.  Co.,  23 
Am,  &*  Erig.  A'.  Cas.  108,  66  /owa  606,  24 
N.  IV.  Rep.  234.— DiSTJNGUiSHED  IN  Fer- 
now  V.  Chicago,  M.  &  St.  P.  R.  Co.,  36  Am. 
&  Eng.  R.  Cas.  420,  75  Iowa  526,  39  N.  W. 
Rep.  869. 

A  railroad  corporation  cannot,  as  against 
the  owner  of  the  soil,  give  away  hay  upon 
land  within  its  location  Bailey  v.  Sweeney, 
30  Am.  &*  Eng.  Ji.  Cas.  328,  64  A^.  H.  296, 
4  A'.  Eng.  Rep.  287,  9  Atl.  Rtp.  543. 

in.  BIOHTB  AHO  DUTY  OF  COMPAinr  AS 
TOWABOS  THE  PUBLIC. 

21.  In  general.*— The  right  of  way  of 
the  Illinois  Central  R.  Co.  is  held  by  that 
company  only  for  railroad  purposes  and 
uses,  and  it  cannot  lawfully  apply  such 
right  of  way  to  any  other  use  or  purpose 
than  such  as  is  necessary  for  the  mainte- 
nance and  optration  of  its  railroad.  Illinois 
C.  R.  Co.  V.  Chicago,  51  Am.&*Eng.  R.  Cas. 
528,  141  ///.  509,  :t  A'.  E.  Rep.  1036. 

The  company  owes  duties  and  obligations 
to  the  Slate  from  whom  it  accepted  its 
charter.  It  is  bound  to  mainbain  and  oper- 
ate its  road,  and  to  execute  the  different 
obligations  for  which  it  was  created.  Il- 
linois C.  R.  Co.  V.  Chicago,  51  Am.  &-  Eng. 
R.  Cas.  528.  141  ///.  509,  30  A^.  E.  Rep.  1036. 

22.  ExcluMve  rights  of  the  com- 
pany.—Lands  condemned  as  a  right  of  way 
stand  in  a  different  category  from  that  of 

*  Dominion  of  company  over  station  grounds 
and  right  of  way,  including  power  to  remove 
persons  therefrom,  see  note,  8  L.  R.  A.  753. 


ordinary  easements.  Over  them  is  ac- 
quired, not  the  right  of  use  to  be  enjoyed  in 
common  with  the  public,  or  with  other 
persons.  The  right  and  use  are  exclusive, 
and  no  one  else  has  any  right  of  way  thereon. 
Tennessee  &*  C.  R.  Co.  v.  East  Ala.  R.  Co., 
75  Ala.  516,  51  Am.  Rep.  475.- Quoting 
Connecticut  &  P.  R.  R.  Co.  v.  Holton,  32 
Vt.  43- 

A  railroad  company  has  the  exclusive  use 
of  its  right  of  way,  and  the  owner  of  land 
upon  which  it  is  situated  cannot  recover  for 
trespass  thereon  by  third  persons,  nor  can 
he  use  such  right  of  way  himself.  St.  Ongt 
V.  Day,  II  Colo.  368,  18  Pac.  Rep.  278. 

A  railroad  company  has  a  right  to  the 
possession  of  the  land  taken  for  the  purpose 
of  its  road,  which  includes  the  right  to  ex- 
clude all  persons  and  beasts  therefrom  at 
any  and  all  times.  IValsh  v.  Virginia  &* 
T.R.  Co.,ZNe7>.  no. 

23.  Storage  ot'earM  on  right  of  way. 
— A  railroad  company  cannot  convert  its 
right  of  way  iiito  storeroom  for  its  cars, 
and  call  it  a  "yard,"  and  thus  prevent  a 
street  from  crossing  its  right  of  way.  Com'rs 
of  Parks,  etc.,  v.  Detroit.  G.  It.  &-  M.  R.  Co., 
51  Am.  (S-  Eng.  R.  Cas.  5:5,  93  A/icA.  58,  52 
A'.  IV.  Rep.  1083.  — Rk.vikwing  and  kol- 
LowiNO  Com'rs  of  Parks,  etc.,  v.  Michigan 
C.  R.  Co,  90  Mich.  385. 

24.  Uenioval  oi'tri"?N  in  danger  of 
falling.  -  In  case  of  probable  danger  of 
obstruction  of  its  track  by  falling  timber,  it 
is  the  duty  of  a  comj>any,  if  the  timber  be 
standing  upon  its  own  right  of  way,  to  re- 
move it  at  once,  and  if  it  be  upon  the  ad- 
joining land,  then  the  company  should  take 
steps  to  have  it  done.  The  company  is 
not,  however,  required  to  remove,  or  have 
removed,  cvcrytliing  wliicli  ni.iy  possibly 
become  an  obstruction.  It  is  only  required 
to  use  reasonable  care  in  this  respect,  and 
i(  injury  results,  notwithstanding  this  care, 
the  company  is  not  chargeable  with  wilful 
neglect.  Filiin  v.  Chesapeake  &*  O.  R.  Co., 
91  Ky.  444,  16  S.   \V.  Rep.  92. 

Where  a  partially  decayed  tree,  standing 
fifty  five  feet  from  a  railroad  track,  leaned 
in  the  opposite  direction  to  such  an  extent 
that  it  was  not  reasonable  to  suppose  that 
it  would  ever  fall  across  the  trai  k,  and  it 
w;is  only  due  to  the  force  of  a  storm  that  it 
did  f.ill  in  that  direction,  the  company  is  not 
chargeable  with  wilful  neglect  in  failing  to 
remove  the  tree  before  it  fell,  although  it 
had  notice  that  the  tree  was  decayed.    Fit- 


RIGHT   OF   WAY,  26,  26.— RIPARIAN    RIGHTS,  1. 


88 


Uhm.  Chesapeake  &*  0.  /?.  Co..  91  Ky.  444.  «6 
S.  W.Iiep.91. 

17.  70IHT  U81B  BT  TWO  OB  MOBB  B0AB8. 

25.  Coii8tructioii  of  contracts  for. 

—Two  railroads  contracted  with  parit  com- 
missiDncrs  for  a  right  of  way  over  the  park, 
with  the  condition  thai  other  companies 
might  use  tlie  same  right  of  way.  Held, 
that  a  subsequent  company  purchasing  from 
one  of  said  contracting  companies  was  a 
purchaser,  with  notice  of  the  condition  im- 
posed, and  was  bound  by  it,  whether  it  was 
a  covenant  running  with  the  land  or  not. 
Joy  V.  St.  Louis,  45  Am.  6-  Eng.  A".  Cas.  655, 
138  i/.  5.  I.  II  Sup.  a.  Rep.  243. 

Two  railroads  contracted  with  park  com- 
missioners for  a  right  of  way  through  the 
park  for  themselves  and  other  roads  that 
might  want  to  use  it.  On  the  same  day  one 
company  conveyed  to  the  other  an  interest  in 
a  riRht  of  way  that  it  had  formerly  obtained 
in  the  park  and  other  lands  in  the  city  near 
by.  Held,  on  application  of  a  subsequent 
road  for  a  right  of  way,  that  the  two  con- 
tracts should  be  construed  together  as  one, 
and  liberally  in  favor  of  the  public.  Joy  v. 
St.  Louis,  45  Am.  &*  Ettg.  K.  Cas.  655.  138 
U  S.\,\\  Sup.  Ct.  Rep.  243. 

20.  8iiccitlc  pcrforiiiaiico  of  such 
coiitra<'t8. —  k^jrtain  railrocids  obtained  a 
right  of  way  into  the  city  of  St.  Louis  on 
condition  that  other  companies  be  permitted 
to  use  the  same.  Held,  on  a  bill  filed  in  the 
U.  S.  circuit  court,  that  the  court  had  juris- 
diction to  decree  specific  performance  by 
enjoining  one  of  the  contracting  companies 
from  preventing  another  company  from 
using  the  right  of  way,  there  being  no  ade- 
quate remedy  at  law.  The  fact  that  the 
other  companies  wno  were  to  use  the  right 
of  way  were  not  named  in  the  agreement  is 
of  no  consequence.  Joy  v.  St,  Louis,  45 
Am.  6-  Eng.  R.  Cas.  655.  138  U.  5.  !.  11 
Sup.  Ct.  Rep.  243.— Distinguishing  Texas 
&  P.  R.  Co.  V.  Marshall,  136  U.  S.  393. 
—Followed  in  Union  Pac.  R.  Co.  v.  Chi- 
rajTo,  R.  I.  &  P.  R.  Co,  51  Fed.  Rep.  309, 
2  C.  C.  A.  174.  QuoTK.n  IN  Toledo,  A.  A. 
>\  N.  M.  R.  Co.  V.  Pennsylvania  Co.,  53 
Am,  &  V.i\g.  R.Cas.  793,  54  Fed.  Rep.  746; 
Union  Depot  R.  Co.  i:  Southern  R.  Co.,  105 
Mo.  562. 

Tlie  commissioners  of  a  park  belonging 
to  the  city  of  St.  Louis  contracted  with  two 
railroads,  by   which  the  latter  obtained  a 


right  of  way  through  the  park,  conditioned 
that  they  let  other  roads  enter  the  city  over 
their  right  of  way.  In  a  suit  for  specific 
performance  of  this  condition— A^A/,  that  the 
city  was  not  a  mere  nominal  party,  but  a 
party  in  interest.  Joy  v.  St.  Louis,  45  Am. 
dr'Eug.  R.  Cas.  655,  138  6^.  5.  I,  II  Sup. 
Ct.  Rep.  243. 


RIPABIAN  BIGHTS. 

Admissibility  of  evidence  as  to  taking  water 
from  stream,  see  Evidence,  71. 

Injury  to,  as  an  element  of  land  damages, 
see  Eminent  Domain,  711. 

In  watercourses,  see  also  Waters  and  Water- 
courses, 0-29. 

Rights  of  riparian  owner  of  land  condemned, 
see  Eminent  Do.main,  14il. 

What  constitutes  a  taking  of,  see  Eminent 
Domain,  108. 

.  In  general  — Title  of  state.  —  A 

state  may  aid  in  improving  rivers,  but  not 
so  as  to  interfere  with  the  government  con- 
trol of  improvements  or  navigation.  Sands 
V.  Mam's  tree  River  Imp,  Co.,  123  U.  S.  288, 
8  Sup.  Ct,  Rep.  113.— Followed  in  Rhea 
V.  Newport  News  &  M.  V.  R.  Co.,  52  Am. 
&  Eng.  R.  Cas.  657,  50  Fed.  Rep.  16. 

A  state  has  the  power  to  change  the  cur- 
rent of  a  navigable  river,  or  to  close  some 
of  its  navigable  channels,  when  the  good  of 
the  state  demands  it ;  but  if  private  prop- 
erty is  injured  thereby,  just  compensation 
must  be  mi<le.  People  v.  St,  Louis,  10  ///. 
351.  -Distinguished  in  Chicago  &  P.  R. 
Co.  V,  Stein,  75  III.  41. 

One  who  owns  a  block  of  land  in  a  city, 
and  also  a  narrow  strip  between  the  block 
and  u  navigable  river,  continues  to  be  a 
riparian  owner  of  the  strip  after  it  has  be- 
come dedicated  as  a  public  street ;  and 
after  he  has  conveyed  the  block  described 
•ns  bordering  on  the  street,  he  continues  the 
riparian  owner  of  at  least  half  the  street 
next  to  the  river  to  low-water  mark,  and  is 
entitled  to  compensation  from  a  railroad 
company  that  seeks  to  condemn  a  right  of 
way  at  any  place  between  the  centre  of  the 
street  and  the  centre  of  the  river.  Drisbint 
V.  St.  Paul&*  S.  C.  R.  Co.,  23  Minn.  114,  17 
Am,  Ry.  Rep.  65.— Followku  in  Carii  v. 
Stillwater  St.  R.  &  T.  Co.,  28  Minn.  373. 

The  state  is  the  absolute  owner  of  the 
land  in  all  navigable  waters  within  its  terri- 
torial limits,  and  such  land  can  be  granted 
to    .iy  one,  either  public  or  private,  without 


i^; 


II 


84 


RIPARIAN   RIGHTS,  2,3. 


Ni^i 


making  compensation  to  the  owner  of  the 
•hore.  SteviHi  v.  Paterson  &*  N.  A\  Co.,  34 
JV./.  L.  532.— Disapproved  in  Rumsey  v. 
New  York  &  N.  E.  R.  Co..  133  N-  Y.  79- 
Followed  in  Pennsylvania  R.  Co.  v.  New 
York  &  L.  B.  R.  Co..  23  N.  J.  Eq.  157. 
Quoted  in  Easton  &  A.R.  Co.  v.  Central 
R.  Co..  52  N.  J.  L.  267. 

A  statute  giving  tu  a  railroad  company 
the  right  to  construct  its  road  along  a  navi- 
gable stream,  and  to  acquire  the  rights  of 
ihe  shore  owners,  does  not  confer  upon 
such  company  the  right  to  take  the  lands 
of  the  state  lying  below  high-water  mark. 
Stmem  v.  Pattrson  &*  N.  K.  Co.,  34  A'./ 
L.  532. 

A  riparian  proprietor  upon  a  navigable 
lake  takes  the  land  only  to  the  water's 
edge;  but  he  has  the  exclusive  right  of  ac* 
cess  to  and  from  the  water,  and  of  building 
piers  and  wharves  in  aid  of  navigation,  so 
long  as  they  do  not  interfere  with  naviga- 
tion ;  and  this  right  is  property,  and  cannot 
be  taken  without  compensation.  Delaplaint 
V.  Chicago  &*  N.  W,  R.  Co.,  42  Wis.  214, 15 
Am.  A>.  Rep.  28. 

Riparian  rights  proper  rest  upon  title  to 
the  bank  or  shore,  and  not  upon  title  to  the 
soil  under  the  water,  being  the  same  whether 
he  owns  ihe  soil  under  the  water  or  not. 
And  distinguished  from  the  right  arising 
in  case  of  gradual  accretion,  the  general 
right  of  appropriating  and  occupying  the 
soil  under  the  water,  when  such  right  may 
exist,  is  not  properly  a  riparian  right,  rest- 
ing not  upon  the  title  to  the  bank  only,  but 
more  directly  to  the  title  to  tlie  soil  under 
the  water.  Diedrich  v.  Northwestern  Union 
R.  Co.,  42  {Vis.  248,  IS  //w.  /»>,  Jx'efi,  9.— 
Following  Chapman  v.  Oshkosh  &  M.  R. 
R.  Co.,  33  Wis.  629;  Delaplaine  V.  Chicago 
&N.  VV.  R.  Co.,  42  Wis.  214. 

2.  Right  to  iiatiir.il  flow  of  the 
Htream.— Each  proprietor  of  land  through 
which  water  flows  may  use  a?  much  of  it  as 
is  necessary  for  natural  and  domestic  pur- 
poses, even  if  it  be  entirely  consumed  in 
the  use,  but  he  is  limited  as  regards  other 
purposes  to  a  reasonable  and  proportionate 
use,  which  must  not  be  such  as  to  exclude 
others  from  a  benefit  to  which  they  are 
equally  entitled  with  himself.  Anderson  v, 
Cincinnati  Southern  R.  Co.,  14  Am.  &*  Eni^. 
R.  Cas.  275,  86  A>.  44,  5  S.  W.  Rep.  49,^9 
Am.  St.  Rep.  263. 

Every  owner  of  land  on  the  banks  of  a 
stream  has  a  usufruct  in  the  water,  though 


he  cannot  diminish  or  divert  the  stream,  ex- 
cept that  ail  water  necessary  for  the  use  of 
men  and  animals  may  be  withdrawn  from  it 
by  natural  or  artificial  means  ;  but  water  can- 
not be  taken  from  it  for  irrigation  or  such 
secondary  purposes.  Anderson  v.  Cincin- 
nati Southern  R.  Co.,  14  Am.  &*  Ettg.  R. 
Cas.  275,  86  A>.  44.  5  S.  IV.  Rep.  49.  9  '^"'^ 
St.  Rep.  263. 

3.  Title  to  bed  of  imviKiible 
Htreaiii.*— The  owner  of  lots  on  each  side  of 
a  navigable  river  is  also  the  owner  of  the  un- 
derlying soil  of  the  river,  and  may  make  any 
use  of  the  river  bed  that  suits  his  purpose, 
so  that  it  does  not  materially  or  unlawfully 
interfere  with  the  public  easement  to  the 
use  of  the  water  in  the  stream.  AtcCartney 
V.  Chicago  &*  E.  R.  Co.,  29  Am.  &*  Eng.  R. 
Cas.  326,  112  ///.  611. 

A  riparian  owner  upon  a  navigable  river, 
like  the  Mississippi,  owns  the  fee  to  ordinary 
high  water ;  but  the  term  "  high-water 
mark  "  is  regarded  as  co-ordinate  with  the 
limit  of  the  river  bed,  and  the  river  bed 
only  includes  land  which  the  water  covers 
long  enough  to  destroy  vegetation,  and  the 
banks  are  limited  to  the  ordinary  water  line, 
as  distinguished  from  the  water  line  at  the 
time  of  freshets.  Houghton  v.  Chicago,  D. 
S-  M.  R.  Co.,  47  Iffwa  370. 

The  owner  of  land  bordering  upon  a 
navigable  river  owns  only  to  high-water 
mark  ;  and  an  acto.'  congress  declaring  the 
river  non-navigable  does  net  extend  his  fee 
to  the  center  of  the  stream,  nor  entitle  him 
to  maintain  an  action  to  recover  possession 
of  the  land  lying  below  high-water  mark  from 
a  railway  company  which  began  to  occupy 
the  same  with  its  roadbed  while  the  river 
was  yet,  in  contemplation  of  law,  navigable. 
Wood  V.  Chicago,  R.  I.  &•  P.  R.  Co.,  1 1  Am. 
<5-  Eng.  R,  C<w.499.  60  ^<««'«  456.  15  M  W. 
Rep.  284. 

For  the  purpose  of  determining  the  title 
to  the  bed  or  bottom  of  rivers  and  streams 
in  a  state  they  may  be  divided  into  three 
classes:  (1)  Those  where  the  tide  flows, 
together  with  the  tideless  rivers  of  the  first 
magnitude,  such  as  the  Niagara,  St.  Law- 
rence, Mohawk.  Genesee,  and  Alleghany. 
(2)  Those  of  lesser  magnitude,  which  are  in 
fact  navigable  for  a  portion  of  the  year,  the 
real  character  of  which  is  usually  ascer- 
tained by  proof.    (3)  Those  which  have  no 


•  Rights  of  owners  of  land  bordering  on  navl 
gable  rivers,  see  note,  5  Am.  &  Eng.  R.  Cas.  9a. 


RIPARIAN    RIGHTS,  4. 


H5 


navigable  capacity  whatever.  Buffalo  Pipe 
Line  Co.  v.  New  York,  L.  E.  5-  W.  /?.  Co., 
10  Abb.  N.  Cas.  (X.  V.)  107. 

Under  the  above  classification,  riparian 
owners  have  no  title  to  the  bed  of  rivers 
of  the  first  class,  and  no  exclusive  privileges 
tliercin,  but  the  title  remains  in  the  state 
for  common  use.  In  the  second  class,  the 
riparian  owner  takes  title  to  the  bed  of  the 
stream  to  the  centre,  and  the  opposite 
owner  comes  up  to  the  same  line.  Streams 
of  the  third  class  are  wholly  private,  /tu/- 
fitto  Pipe  Line  Co.  v.  New  York,  L.  E.  &* 
W.  R.  Co.,  10  Abb.  N.  Cas.  (N.  Y.)  107. 

A  railroad  company  owning  the  bed  of  a 
river  of  the  second  class,  as  above  defined, 
holds  subject  to  the  right  of  the  public  to 
navigate  tlie  stream,  but  not  subject  to  the 
right  of  others  who  devote  it  to  private 
trafllic.  So  a  pipeline  ci>mpany  becomes  a 
trespasser  if  it  enters  upon  such  land  and 
attempts  to  lay  its  line  in  the  bed  of  the 
stream.  Buffalo  Pipe  Line  Co.  v.  New  York, 
L.  E.  &*  IV.  li.  Co.,  10  Abb.  N.  Cas.  (N.  Y.) 
107. 

The  statutes  of  the  state  do  not  prevent 
railroad  corporations  from  holding  the  fee 
simple  to  lands  necessary  for  corporate  pur- 
poses ;  which  include  lands  under  water. 
Buffalo  Pipe  Line  Co.  v.  New  York,  L.  E. 
&»  W.  R.  Co.,  10  Abb.  N.  Cas.  {N.   Y.)  107. 

Rocks  and  sho.ils  lying  along  the  margins 
of  navigable  rivers,  above  tide  water,  belong 
to  riparian  owners.  Riparian  rights  extend 
laterally  from  the  sliore,  and  not  up  or 
down  the  stream.  Moore  v.  Willamette  T. 
6^  L.Co.,7  Ortg.  355. 

While  a  shore  owner  has  riparian  rights  to 
land  under  navigable  waters,  he  holds  the 
right  subject  to  public  navigation,  which 
includes  the  right  to  improve,  regulate,  and 
control  the  stream  in  the  interests  of  navi- 
gation. Delaplaines.  Chicago  &»  N.  IV.  R. 
Co.,  42  Wis.  214,  15  Aw.  Ry.  Rep.  28.— FOL- 
i.owiNC.  Jones  v.  Pettibone,  2  Wis.  308. 
Rkakfirming  Walkers.  Shepardson, 2  Wis. 
384, 4  Wis.  486  ;  Mariner  v.  Schulte,  13  Wis. 
693;  Arnold  v.  Elmore,  16  Wis.  Jio;  Har- 
rington?'. Edwards,  17  Wis.  586;  Yates  v. 
Juil'l,  18  Wis.  119,— Followed  IN  Dicdrich 
V.  Korthwestern  Union  R.  Co.,  42  Wis. 
248. 

The  right  of  riparian  owners  extends  to 
low-water  mark ;  beyond,  the  common- 
wealth is  owner ;  and  the  port  wardens  are 
the  agents  of  the  state  and  dispense  the 
bounty  of  the  state  in  allowing  extension  of 


wharves  beyond  low-water  mark.  Phih' 
delphia  6-  R.  R.  Co.  v.  Morris,  7  Phila,  (Pa.) 
286. 

4.  Title  to  AatH  niid  land  under 
water.*  —  Proceedings  were  commenced 
against  a  railiViad  company  to  prevent  the 
filling  of  certain  flats  or  swamp  lands,  un- 
der Mass.  Act  of  1866,  ch.  149,  which 
created  a  board  of  harbor  commissioners, 
and  intrusted  them  with  the  power  of  pre- 
venting unauthorized  encroachments  upon 
the  navigable  waters  of  harbors.  The  com- 
pany defended  on  the  ground  that  its  work 
was  begun  before  the  passage  of  the  statute. 
The  evidence  showed  that  the  extent  rf  the 
flats  to  be  filled  had  never  been  defined  by 
any  legislative  act,  or  by  any  line  of  wall  or 
piles,  except  by  a  short  portion  of  wall,  for 
a  short  distance  in  front  of  the  flats,  which 
turned  and  ran  for  a  short  distance  toward 
the  upland  and  there  stopped.  //eM,  not 
sufficient  to  exempt  the  company  from  the 
operation  of  the  act.  Attorney-Geheral  v. 
Boston  &*  L.  R.  Co.,  118  Mass.  345. 

In  such  case,  the  company  also  defended 
under  the  authority  of  Mass.  Act  of  1845, 
ch.  224 ;  but  that  statute  merely  defined  the 
boundary  line  of  defendant's  flats,  and  con- 
ferred no  new  title,  right,  or  authority  upon 
the  defendant.  Neltt,  that  it  was  not  a  good 
defense.  Attorney-General  v.  Boston  &*  L. 
R.  Co.,  118  Mass.  345. 

Neither  the  N.  Y.  Act  of  1846,  ch.  216,  in- 
corporating a  company  for  the  purpose  of 
constructing  a  railroad  along  the  east  side 
of  the  Hudson  river,  nor  the  amendatory 
act  of  1848,  ch.  30,  gave  the  corporation 
any  title  to  lands  belonging  to  the  state, 
whether  above  or  under  the  waters  of  the 
river ;  nor  did  the  adopting  a  course  or  fil- 
ing a  map  as  prescribed  give  any  such  title. 
Said  acts,  at  most,  gave  only  an  implied 
license  to  the  company  to  build  along  the 
course  selected,  and  the  title  to  lands  of  the 
state  as  well  as  to  those  of  individuals  was  to 
be  subsequently  acquired.  New  York  C.  &* 
H.  R.  R.  Co.  v.  Aldr:<^e,  135  A'.  Y.  83,  32 
N.  E.  Rep.  50,  48  A',  y.  y.  R.  373 ;  affirming 
42  N.  Y.  S.  R.  18,  16  A'.  Y.  Hupp.  674. 

The  provision  of  said  amendatory  act, 
(§  S)  giving  to  the  directors  of  the  company 
power  to  adopt  a  new  and  altered  location 
for  its  road  as  a  substitute  for  the  original 

*  Rights  of  landowners  in  navigable  waters 
fronting  lands,  and  in  the  lands  under  water,  see 
very  full  note,  19  Am.  St.  Rep.  236. 


RIPARIAN    RIGHTS,  B. 


.     i 


location,  applies  only  to  what  is  in  reality 
an  alteration  and  substitution  ;  not  to  that 
which  is  a  mere  addition  to  the  original  lo- 
cation. AVw  i'lfrJt  C.  *•  //.  A',  a:  Co.  v. 
AUnt^f,  13$  A'-  >'•  83.  3  J  A'  ^-  ■''''/•  So.  48 
A',  y.  S.  A".  373 ;  affirming-  42  N.  Y.  S.  K. 
18.  16  N.   y.  Su/>/>.  674. 

A.  CoiitiietiiiK  rights  to  Nlioro 
IVont.*— The  fact  that  the  owner  of  land 
bounded  by  a  navigable  river  has  conveyed 
to  a  railroad  company  for  the  use  of  its  road 
a  strip  of  the  land  alon({  tlie  water  front,  over 
which  its  route  runs,  d<'cs  not  deprive  liimof 
the  character  of  riparian  owner,  witliin  the 
meaning  of  the  statute  in  reference  to  grants 
of  lands  under  water,  nor  does  it  give  to  tlic 
company  that  character ;  altliough  the  title 
granted  to  the  company  is  a  fee,  it  holds  and 
can  only  use  the  land  for  tlic  purposes  of  its 
road.  AV7f  IVX-  C.  &^  //.  A'.  A'.  Co.  v.  A!- 
dridgt,  135  N:Y.  83,  32  N.  E.  Ktp.  50.  48 
A'.  Y.  S.  A'.  373 ;  ,iffirming  42  A'.  Y.  S.  A'. 
18,  16  A'.  )'.  .S////.  674.  — Following  Rum- 
soy  V.  New  York  &  N.  E,  R.  Co.,  114  N.  V. 
423. 

The  H.  R.  R.  Co.,  Mirsuant  to  N.  Y.  Act 
of  1846,  duly  dcsi^nraed  the  line  of  its  road, 
as  it  passed  through  the  town  of  Fishkill, 
and  filed  the  proper  certificate  thereof  in  the 
office  of  the  county  clerk  ;  it  obtained  from 
owners  of  lands  fronting  on  the  river  con- 
veyances of  a  strip  of  land  along  the  river 
over  which  the  route  ran,  the  eastern  bound- 
ary of  which  was  above  high-water  mark, 
thus  taking  in  the  river  front.  The  deeds 
contained  reservations  of  the  grantors'  riglils 
to  all  land  lying  below  high-water  mark, ex- 
cept such  portions  as  were  included  in  the 
route  as  laid  out  and  located.  The  grantors 
subsequentlyconveyedtheirremaininglands, 
"excepting  and  reserving  "the  line  of  the 
railroad  as  then  in  use  and  occupation  by  the 
company.  In  1867  the  grantees  mr-de  ap- 
plication to  the  commissioners  of  the  land 
office  for  a  grant  of  land  under  the  river  ad- 
jacent to  the  upland,  which  was  opposed  by 
the  company;  while  the  application  was 
pending  the  company,  assuming  to  act  un- 
der the  amendment  of  1848,  changed  the 
westerly  line  of  the  road,  as  originally  laid 
out  over  said  lands,  by  carrying  said  line 
further  west,  in  no  other  respect  changing 
the  original  location.    In  1869  the  commis- 


•  Right  in  bank  of  navigable  rivers.  Action 
lor  the  obstruction  of  a  public  highway,  ice 
note,  33  Am.  &  Eni;.  K.  Cas.  82. 


sioners  granted  the  said  application  and 
issued  a  patent  to  the  applicants  "  subject 
to  all  rights  and  privileges  in  and  to  said 
premises,"  which  said  company  had  acquired 
under  its  charter.  In  1873  said  commis- 
sioners issued  a  patent  to  plaintifl,  it  having 
succeeded  to  the  rights  of  the  H.  R.  R.  Co. 
in  the  strip  of  land  under  water  included  in 
the  new  westerly  line.  In  an  action  of  eject- 
ment to  recover  said  strip  —  helJ,  that 
plaintiff  acquired  no  title  thereto  either  by 
the  alleged  alterations,  or  by  said  patent; 
that  even  if  the  patents  so  issued  to  the  de-< 
fcndants  were  void  because  they  were  not 
the  upland  proprietors,  this  could  not  be 
urged  in  this  action,  as  plaintifl  could  only 
succeed  by  showing  title  in  itself.  AVw 
York  C.  <S-  //.  A'.  A'.  Co.  v.  Aldruige,  135  N. 
Y.  83.  32  A'.  E.  A'efi.  50,  48  A'.  Y.  S.  R.  373  ; 
affirming  42  A'.  Y.  S.  A'.  18,  16  yV.  )'.  5«//». 
674.— Followed  in  Saunders  v.  New  York 
C.  &H.  R.  R.  Co.,i35N.  Y.613. 

The  patents  so  issued  to  defendants  were 
valid;  neither  the  provision  in  said  patents 
making  the  grants  subject  to  the  rights  and 
privileges  acquired  by  plaintitT,  nor  the  pru« 
vision  of  N.  Y.  Rev.  St.  in  reference  to 
grants  of  land  under  water  (1  Rev.  St.  208, 
§  67)  as  amended  in  1850,  ch.  283,  prohibit- 
ing the  commissioners  from  making  any 
grant  interfering  with  the  rights  of  said  H. 
R.  R.  Co.,  aflected  their  right  to  a  patent, 
or  the  validity  of  those  granted  to  them;  and 
conceding  that  the  company  had  power  to 
alter  its  course  in  the  manner  it  assumed  to 
do,  this  alteration  did  not  alTect  the  rights 
of  the  commissioners  to  make  n  grant  to  an 
upland  proprietor  of  land  included  in  the 
alteration.  New  York  C.  &*  If.  A'.  A*.  Co.  v. 
Aliiriiige,  135  A'.  Y.  83,  32  N.E.  A'*p.  50.  48 
A'.  Y.  S.  A'.  373 ;  affirming  42  A'.  Y.  S.  A". 
18,  16  A'.  Y.  Supp.  674. 

The  person  entitled  to  the  exclusive  right 
to  po&scss  and  use  land  abutting  on  a  navi- 
gable lake  or  river  is  also,  though  he  does 
not  own  the  fee,  entitled  to  enjoy  the  ripa- 
rian  rights  incident  to  the  land.  And 
so,  where  a  railroad  company  procured  to 
be  condeined  for  its  use  land  abutting 
on  the  bay  of  St.  Louis,  it  acquin^d  the 
riparian  rights  belonging  to  i.,  although 
the  petition  for  condemnation  made  no 
express  mention  of  such  rights,  llanford  v. 
St.  Paul  &*  D.  h.  Co.,  39  Afn.  &*  Eng.  K. 
Cas.  25,  43  Minn.  104,  42  N.  IV.  Jiefi.  596; 
reargued  a»d  reaffirmed  in  44  Am.  &•  Er^, 
A".  Civ,  205. 


RIPARIAN   RIGHTS,  e.  7. 


•7 


O.  Right  to  oxtoL  1  slioro  fYont.*— 

In  Connccficul,  the  owncrn  of  lnnd[bnunded 
on  a  lia;-bor  own  only  to  hi|{li-water  mark, 
and  wliutcver  ri|;ht»  sucli  owners  liavc  of 
reclaiming  the  slioru  arc  mere  franchises. 
When,  however,  sucii  rcclamiaionsaru  made, 
the  reclaimed  portions  in  (jciieral  become 
integral  parts  of  liic  owners' adjoining  land. 
Uy  means  of  such  reclamations,  the  line  of 
hi^h-watcr  mark  is  clian(;cd  and  carried 
into  tin;  harbor,  and  the  owners'  lands  have 
gained  the  reclaimed  shore  by  accretion  ;  the 
principles  governing  the  case  being  the  same 
as  those  which  prevail  where  the  sea  recedes 
gradually  by  accession  of  soil  to  the  land. 
Loikwood  V.  N€W  York  &*  JV.  //.  A'.  Ca.,  37 
CvHn.  387. 

All  owner  of  lots  abutting  on  the  Missis- 
sippi river  possesses  the  riparian  right  of 
constructing  thereon  suitable  landings  and 
wharves  for  the  C(jnvcnicn(:e  of  commerce 
and  navigation,  and.  to  extend  such  con- 
struction out  into  the  river  to  the  point  of 
navigability  l\if>pe  v.  Chidigo,  I),  is*  M. 
1\'.  Co.,  23  Miini.  18.  17  Aiit.  Ry,  lu-p.  19. 

The  owner  of  land  bounded  by  a  naviga- 
ble stream  has  the  right,  by  virtue  of  the 
ownership  of  tlie  bank,  to  enjoy  free  com- 
munication between  his  abutting  premises 
and  the  navigable  channel  of  the  river,  and 
may  fill  out  into  the  river,  beyond  low-water 
mark,  to  navigable  water,  so  as  to  make  the 
shore  available  for  the  uses  connected  with 
navigation,  and  to  this  extent  is  entitled  to 
the  exclusive  occupancy  of  the  bed  of  the 
stream,  subordinate  and  sui)ject  only  to  the 
rights  of  the  public  with  respect  to  naviga- 
tion, and  such  needful  rules  and  regula- 
tions for  their  protection  as  may  be  pre- 
scribed liy  competent  legislative  authority  ; 
and  such  ri|>arian  rights  arc  property,  and 
cannot  lawfully  be  taken  for  public  use  with- 
out just  comi)cnsation.  Carliv.  Stillwater 
St.  A'.  6-  r.  Co.,  3  Ami.  &*  Etig.  K.  Cas.  226, 
28  Minn.  373,  41  Am.  Rep.  290,  10  A^.  W. 
Hep.  205.— Fui.LowiNt;  Brisbine  v.  St,  Paul 
&  S.  C.  K.  Co.,  23  Minn.  114.— DlsriN- 
GUisiiKl)  IN  Newell  V.  Minneap<jlis,  L.  & 
M.  K.  Co.,  24  Am.  &  Eng.  R.  Cas.  298,  35 
Minn.  112.— Union  U,pot,  St.  R.&*  T.  Co.  v. 
lirunsftvick,  14  Atn.  &•  Enir.  R.  Cas.  233,  31 
Minn.  297,  47  Am.  Rep.  789.  17  N.  IV.  Rep. 
626. 


•  Rinht  of  riparian  ciwner  to  use  siilimcrKcd 
lands  to  a  depth  of  priictital  navigation,  see 
note,  36  Am.  St.  Ri  r.  336. 


By  the  local  custom  of  thii  sute.  the 
shore-owner  can  reclaim  the  land  between 
high-  and  low-water  marks,  but  such  privi- 
lege is  a  mere  license,  which  the  legislature 
may  revoke  at  any  time  before  execution. 
SttvtHs  V.  PatersoH  &*  N.  It.  Co.,  34  N.  J. 
L.  532. 

By  force  of  the  statute  of  New  Jersey,  a 
riparian  owner,  when  he  extends  his  shore 
front,  must,  if  the  high-water  line  is  sub- 
stantially a  straight  line,  so  extend  his  side 
lines  as  to  make  them  rectangular  with  such 
high-water  line,  but  when  the  high-water 
line  is  not  straight,  the  extension  of  the 
shore  fnmt  must  be  divided  proportionally 
among  the  riparian  owners.  Dtlawart,  L. 
&>  IV.  R.  Co.  V.  HannoH,  37  A'.  /.  L.  276.— 
QuuTiNG  Walker  v.  Boston  &  M.  R.  Co..  3 
Cush.  (Mass.)  22. 

The  inchoate  right  which  the  owner  of 
the  u|>land  has  to  acquire  an  exclusive  title 
to  lands  under  water  by  wharfing  out  or 
otherwise  improving  the  same  gives  him  no 
property  in  the  land  before  it  is  reclaimed ; 
lie  has  a  mere  license,  revocable  by  the  leg- 
islature at  any  time  before  it  shall  be  exe- 
cuted. State  (\'ew  York,  L.  E.  &»  IV.  R. 
Co.,  Pros.)  V.  Yard,  11  Am.  &*  Eng.  R.  Cas. 
529,43  A',  y.  L.  632 ;  affirming  43  A^.  /  Z. 
121. 

A  riparian  owner  has  a  right  to  construct 
wharves  or  piers  in  aid  of  navigation,  and 
to  protect  his  land  against  natural  causes 
which  arc  wearing  it  away  or  encroaching 
upon  the  banks ;  but  beyond  these  he  has 
no  right  to  extend  his  possession,  or  intrude 
beyond  the  natural  shore  line,  except  upon 
a  public  grant.  Any  other  intrusion  or  ex- 
tension beyond  the  natural  shore,  whether 
made  by  the  riparian  owner  or  a  stranger, 
is  a  pourpresture,  and  vests  no  title  in  the 
one  who  makes  it.  Diedrich  v.  Northwest' 
em  Union  R.  Co.,  42  Wis.  248,  1$  Am.  Ry. 
Rfp,  9. 

7.  GraiitH  of  laud  under  water— 
"  Adjucoiit  owiiorg."— A  railroad  com- 
pany that  has  acquired  title.to  land  under 
water  some  distance  from  the  shore  for  the 
purpose  of  constructing  its  roadbed,  and 
lias  built  thereon  an  embankment  support- 
ing its  tracks,  but  leaving  a  bay  between 
the  embankment  and  the  original  shore  line, 
into  which  the  tide  ebbs  and  flows,  is  not 
"a  proprietor  of  adjacent  lands,"  within  the 
meaning  of  1  N.  Y.  Rev.  St.  208,  §  67,  pro- 
hiliiting  (grants  of  lands  under  waters  of 
navig.il'ii-   siri'ams   "to   any   person    other 


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RIPARIAN   RIGHTS,  8,  9. 


1  H 


W 


than  the  proprietor  of  the  adjacent  lands." 
/iumsey  v.  New  York  &^  N.  E.  Ji.  Co.,  39 
Am.  &-  Eng.  Ji.  Cas.  34.  114  ^-  Y-  423.  21 
A^.  E.  Rep.  1066.  23  A^.  Y.  S.  R.  928.-FOL- 
LOWEU  IN  New  York  C.  &  H.  R.  R.  Co.  v. 
Aldridge,  135  N.  Y.  83;  Rumsey  v.  New 
York  &  N.  E.  R.  Co.,  3  Silv.  App.  203. 
Reviewed  in  New  York  C.  &  H.  R.  R.  Co. 
V.  Aldridge.  42  N.  Y.  S.  R.  18. 

Under  the  above  statute  the  proprietor  of 
"  adjacent  lands  "  is  t'  .  p  >prietor  of  the  ad- 
jacent uplands.  Rumi:y  ■>'.  New  York  »S^  A^. 
E.  R.  Co.,  39  Am.  St*  Eng.  R.  Cas.  34,  114  A^. 
y.  423, 21  N.E.  Rep.  1066,  ,  V  Y.  S.  R.  928. 
—Distinguishing  Gou:  Hudson  River 

R.  Co.,  6  N.  Y.  522 ;  Lar.  .;  v.  Mayor, etc., 
of  N.  Y..  93  N.  Y.  129. 

A  riparian  owner  on  the  Hudson  river 
conveyed  to  a  railroad  company  the  right  of 
way  in  land  under  a  small  body  of  water  or 
bay  which  projected  from  the  main  line  of 
the  river,  reserving  to  himself  the  right  to 
the  other  land  bel  -v  high  water,  e-xcept  the 
strip  conveyed.  Held,  that  such  reservation 
was  valid,  though  the  grantor  had  not  ob- 
tained a  patent  from  the  state  at  the  time 
the  deed  was  made.  Saunders  v.  New  York 
C.  &*  H.  R.  R.  Co.,  30  Abb.  N.  Cas.  88,  23  N. 
Y.  Supp.  927 ;  affirmed  in  24  A^.  Y.  Supp. 
659,  54  N.  Y.  S.  R.  364,  71  Hun  153  ;  modi- 
fied and  affirmed  in  144  A^.  K.  75,  38  N.  E. 
Rep.  992. 

8.  Right  to  erect  dams  aud  break- 
waters.—As  a  right  of  necessity,  when 
water,  navigable  or  otherwise,  is  by  natural 
causes  wearing  away  and  intruding  upon  its 
banks,  the  riparian  owner,  whether  he  owns 
to  the  middle  of  the  stream  or  not,  may,  as 
against  the  public,  intrude  into  the  water  as 
far  as  may  be  necessary  for  the  construc- 
tion of  works  essential  to  the  protection 
of  his  lands  against  the  action  of  water ; 
but  he  does  this  at  his  peril  of  obstructing 
the  public  use,  if  the  water  is  navigable,  and 
at  iiis  peril,  if  the  obstruction  is  not  neces- 
sary. Diedrich  v.  Northwestern  Union  R. 
Co.,  42  IVis.  248,  1 5  Am.  Ry.  Rep.  9. 

O.  Keiiiedies  fur  obstructing  navi- 
gation.*— The  state  has  the  right  of  a  pro- 
prietor over  navigable  streams  entirely  with- 
in its  borders,  and  may  obstruct,  or  (unless 
where  restricted  by  the  constitution  of  the 
United  States)  may  close  up  such  streams  at 


*  Right  in  bank  nf  navigable  river.  Action 
for  ihe  nhstructinn  of  a  public  highway,  see  note, 
a3  A.V1.  &  Eng.  \i.  Cas.  82. 


pleasure.    Bailey  v.  Philadelphia,  W.  <S*  B. 
R.  Co.,  4  Harr.  (Del.)  389. 

Individuals,  as  part  of  the  general  public, 
have  a  right  to  navigate  waters  ;  but  an  in- 
dividual cannot  acquire  a  private  right  to  do 
so,  for  his  use  cannot,  in  law,  be  adverse. 
So  an  individual  who  owns  a  private  dock 
cannot  maintain  a  proceeding  against  a  rail- 
road company  to  have  damages  assessed  for 
constructing  a  railroad  on  piles  over  navi- 
gable waters,  so  as  to  prevent  the  bringing 
of  boats  from  beyond  the  railroad  to  tiie 
dock.  Thayer  v.  New  Bedford  R.  Co.,  125 
Mass.  253. 

A  landowner  whose  sole  interest  in  a 
navigable  stream  is  the  right  to  its  use  as  a 
public  highway  in  common  with  the  public 
cannot  maintain  a  private  suit  for  its  ob- 
struction. Potter  v.  Indiana  &*  L.  M.  R. 
Co.,  95  Mich.  389,  54  A^.  W.  Rep.  956. 

Where  land  upon  a  navigable  stream  is 
only  useful  in  connection  with  a  shipping 
and  freighting  business,  and  it  is  problem- 
atical whether  it  will  ever  be  in  demand 
for  that  purpose,  damages  claimed  by  the 
owner  for  the  obstruction  of  the  stream  are 
purely  speculative.  Potter  v.  Indiana  &* 
L.  M.  R.  Co.,  95  Mich.  389,  54  A'.  M^.  Rep. 
956. 

Where  a  railroad  company  is  sued  for 
damages  for  obstructing  a  navigable  stream 
by  a  bridge,  and  there  is  proof  of  the  ob- 
struction, and  that  plaintiff  has  sustained 
damages  thereby,  plaintiff's  case  is  estab- 
lished, and  it  then  rests  upon  the  company 
to  show  that  it  had  authority  to  erect  the 
bridge,  and  that  it  was  properly  built  and 
managed.  (Pratt,  J.,  dissenting.)  Doxsey 
V.  Long  Island  R.  Co.,  35  Hun  (N.  Y.)  362. 

The  provision  of  N.  Y.  General  Railroad 
Act  of  1890,  ch.  565,  authorizing  a  railroad 
corporation  to  construct  its  road  across  or 
along  any  stream  or  watercourse  and  re- 
moving the  exception  in  tlie  similar  provi- 
sion of  the  act  of  1850,  ch.  140,  of  the  right 
to  obstruct  any  navigable  stream  or  lake, 
has  no  effect  upon  a  patent  for  lands  under 
the  waters  of  a  navigable  stream  issued  by 
the  state  prior  to  the  passage  of  said  act  of 
1850,  and  so,  does  not  divest  the  patentee  of 
any  rights  acquired  under  his  patent.  Rum- 
sey  V.  New  York  &*  N.  E.  R.  Co.,  130  A^.  Y. 
88.  28  A^.  E.  Rep.  763.  40  A^.  Y.  S.  R.  583  ; 
affirming  28  A'^.  Y.  S.  R.  984  ;  former  ap- 
peal \\\  N.  Y.  423, 

The  right  of  navigation  being  a  pre-exist- 
ing public  right,  one  who  claims  authority 


RIPARIAN   RIGHTS,  10. 


89 


to  obstruct  it.  under  a  legislative  grant,  must 
show  such  authority  to  be  clear,  either  from 
the  explicit  terms  of  the  grant,  or  by  neces- 
sary implication.  Thompson  v.  PaUrson  <S- 
H.  R.  R.  Co.,  9  N.J.  Eg.  526. 

The  burden  of  proving  lawful  an  obstruc- 
tion of  a  navigable  stream  is  uponthe  party 
causing  the  obstruction.  Cantrell  v.  Knox- 
ville,  C.  G.  <S-  L.  R.  Co.,  90  Tenn.  638, 18  S, 
W.  Rep.  271. 

The  ownership  of  the  bed  of  a  navigable 
river  is  immaterial  in  an  action  by  a  person 
not  claiming  any  interest  in  the  soil,  but 
merely  a  public  right  of  way  over  such  river, 
against  a  railway  company  for  obstructing 
navigation  ;  and  it  is  not  necessary  for  the 
railway  company  in  such  action  to  allege  or 
prove  that  it  has  taken  steps  to  have  the 
ownership  of  the  soil  vested  in  it  under  the 
statutes.  Abraham  v.  Great  Northern  R. 
Co.,  16  Q.  B.  586,  is/«r.  855.  20  L.J.  Q.  B. 
322. 

Where  a  railway  company,  sued  for  ob- 
structing navigation  of  a  river,  justifies  under 
the  Lands  Clauses  Act,  1845.  it  need  not 
allege  in  its  plea  that  it  has  done  as  little  dam- 
age as  could  be,  in  accordance  with  section 
16  of  the  act,  which  requires  that  companies 
in  the  exercise  of  their  powers  "  shall  do  as 
little  damage  as  can  be."  Abraham  v.  Great 
Northern  R.  Co.,  i6  Q.  B.  586,  i5/«r.  855, 
20  L.J.  Q.B.  322. 

Where  a  railway  act  provides  that  nothing 
therein  shall  authorize  the  company  "to 
obstruct  the  navigation  of  a  river,  or  any 
part  thereof,  or  to  divert  any  of  the  waters 
therein,  or  which  now  supply  the  river,"  this 
clause  applies  only  to  the  time  of  the  con- 
struction of  the  railway  and  does  not  take 
away  the  company's  rights  as  riparian  pro- 
prietor. Attorney-General  v.  Great  Eastern 
R.  Co.,iZ  W.  R.  1 187,  23  L.  T.  344. 

10. for  obstructing  shore  front. 

— (i)  In  general.— Though  the  title  of  one 
owning  lands  bordering  on  a  navigable 
stream  stops  at  the  water,  yet  as  riparian 
owner  he  has  a  right  to  construct  suitable 
landings  and  wharves  for  the  convenience 
of  navigation,  and  may  enjoin  a  railroad 
company  from  constructing  tracks  so  as  to 
interfere  with  this  right.  St.  Paul  &*  P.  R, 
Co.  V.  Schurntetr,  7  IVall.  (U.  S.)  272.— 
Quoted  in  Story  v.  New  York  El.  R.  Co., 
90  N.  Y.  122,  II  Abb.  N.  Cas.  236. 

Section  2  of  the  Iowa  act  entitled  "  An 
act  in  relation  to  riparian  owners  on  the 
Mississippi  and  Missouri  Rivers,"  approved 


March  18,  1874,  is  not  in  conflict  with  any 
statute  of  the  United  States.  Where,  there- 
fore, the  owner  of  lands  on  the  Mississippi 
had  made  an  embankment  in  front  of  them, 
and  at  its  outer  end,  beyond  low-water  mark, 
erected,  without  the  direction  or  consent  of 
the  secretary  of  war,  a  stone  pier  or  crib, 
this  court  affirms  the  judgment  of  the 
supreme  court  of  that  state,  declaring  that 
under  that  section  a  railway  company  cannot 
construct  its  road  over  the  embankment  be- 
tween high-  and  low-water  mark,  unless  the 
damages  to  such  owner  shall  first  be  ascer- 
tained and  paid.  Davenport  &*  N.  W.  R. 
Co.  V.  Renwick,  5  Am.  &•  Eng.  R.  Cas.  90. 
102  U.  S.  180. 

The  owners  of  lands  bordering  upon  the 
Mississippi  river  whose  riparian  rights  are 
appropriated  by  a  railroad  company  are  en- 
titled to  compensation  for  the  destruction 
of,  or  injury  to,  their  right  of  access  to  the 
navigable  part  of  the  river,  and  for  the  loss 
of  the  right  to  make  and  maintain  a  wharf 
or  pier  for  their  ov  n  use  and  for  the  use  of 
the  public,  and  of  the  privilege  of  keeping 
a  public  ferry.  Organ  v.  Memphis  <S»  L.  R. 
R.  Co.,  39  Am.  6*  Eng.  R.  Cas.  75,  51  Ark. 
23  s,  1 1  S.  W.  Rep.  96. 

The  owner  of  lands  lying  along  the  Mis- 
sissippi river  has  no  private  right  in  the  wa- 
ters thereof,  or  in  the  shore  between  high- 
and  low-water  mark,  and  he  cannot  recover 
damages  for  being  deprived  of  access  to  the 
stream  by  reason  of  the  construction  of  a 
railroad  along  its  banks  between  such 
marks.  Jeck,  J.,  dissenting.)  Tomlin  v. 
Dubuque.  B.  &*  M.  R.  Co.,  yi  Iowa  106,  10 
Am.  Ry.  Rep.  70. — Following  Gould  v. 
Hudson  River  R.  Co.,  6  N.  Y.  543.— Dis- 
approved IN  Chapman  v.  Oshkosh  &  M. 
R.  R.  Co.,  33  Wis.  629. 

To  entitle  a  riparian  owner  to  damages 
for  the  appropriation  by  a  railroad  company 
of  land  upon  the  banks  of  the  Mississippi  or 
Missouri  rivers,  under  Iowa  Laws  of  1874, 
ch.  35,  it  is  not  necessary  that  he  should 
have  erected  a  crib  or  pier  in  front  of  his 
property.  Renwick  v.  Davenport  &»  N.  IV- 
R.  Co.,^g  Iowa  664. 

It  is  competent  for  the  state  to  provide, 
as  in  the  statute  cited,  that  a  railway  com- 
pany should  not  appropriate  land  for  its 
own  use,  between  low-  and  high-water  mark, 
without  compensation  to  the  riparian  owner. 
Renwick  v.  Davenport  «S«"  N.  W.  R.  Co.,  49 
Iowa  664. 
A  riparian  owner  on  a  navigable  river  is 


i 


i 


I 


Sillll 


90 


RIPARIAN   RIGHTS,  10. 


i 


I 


entitled  to  damages  against  a  railway  com- 
pany, although  no  land  is  taken  from  him, 
for  the  obstruction  and  interrupted  access 
between  his  property  and  the  navigable 
waters  of  the  river,  viz.,  for  the  injury  and 
diminution  in  value  thereby  occasioned  to 
his  property.  Pion  v.  North  Shore  A\  Co., 
14  Can.  Sup.  Ct.  677;  reversing  12  Quebec  L. 
R.  205. 

A  riparian  proprietor  on  a  navigable  river 
is  entitled  to  damages  against  a  railway 
company  for  any  obstruction  to  his  rights  of 
acces  et  sortie,  and  such  obstruction  with- 
out parliamentary  authority  is  an  actionable 
wrong.  Bigaouette  v.  North  Shore  R.  Co. , 
17  Can.  Sup.  Ct.  363.— FoLLOWi.  ^  \orth 
Shore  R.  Co.  v.  Pion,  L.  R.  14  App.  Cas.  612. 
(2)  In  New  York.—]ik.  Y.  General  Rail- 
road Act  of  1850,  ch.  140,  §  28,  subd.  5,  pro- 
viding that  every  stream  of  water,  water- 
course, etc.,  intersected  or  touched  by  a 
railroad,  shall  be  restored  by  the  corpora- 
tion "  to  its  former  state,  or  to  such  state  as 
not  unnecessarily  to  have  impaired  its  use- 
fulness," was  designed  to  protect  public 
rights,  not  private  interests,  and  applies  only 
to  such  streams  and  watercourses  as  were, 
before  the  construction  of  the  road,  capable 
of  and  accustomed  to  be  generally  navi- 
gated, and,  so  far  as  it  applies  to  a  navigable 
river,  has  reference  simply  to  commerce 
thereon  and  the  general  right  of  navigation. 
Kerr  v.  West  Shore  R.  Co.,  127  N.  Y.  269, 
27  N.  E.  Rep.  833,  37  N.  Y.  S.  R.  g\y, 
affirming  53  Hun  634,  2^  N.  Y.  S.  R.  1036, 
6  N.  y'.  Supp.  958. 

It  does  not  entitle  each  owner  of  upland 
fronting  upon  a  bay  in  a  river  intersected 
by  a  railroad,  which  bay  was  not  navigable 
in  the  ordinary  meaning  of  the  term,  to  have 
a  drawbridge  constructed  in  the  road  so  as 
to  permit  the  passage  of  vessels  to  his  prop- 
erty. Kerr  v.  West  Shore  R.  Co.,  127  N.  Y. 
269.  27  N.  E.  Rep.  Z:\  yj  N.  Y.  S.  R.  913 ; 
affirming  53  Hun  634,  25  A^.  Y.  S.  R.  1036, 
6  N.  Y.  Supp.  958. 

Plaintiff  was  the  owner  of  a  farm  bounded 
by  the  Hudson  river,  and  the  state  had  made 
to  him  a  grant  of  lands  under  water,  extend- 
ing along  the  whole  front  of  his  farm.  A 
railroad  corporation,  to  whose  title  the  de- 
fendant is  the  successor,  constructed  its  road 
along  the  river  partly  upon  plaintiff's  up- 
land, partly  upon  the  land  so  granted  by 
the  state,  and  partly  upon  land  under  water 
in  front  of  plaintiff's  property.  The  lands 
of  plaintiff  so  occupied  by  said  road  were 


condemned  by  the  company,  and  the  sum 
awarded  was  paid  by  it.  The  commission- 
ers of  the  land  office  executed  to  the  com- 
pany a  grant  of  the  land  under  water  upon 
which  the  road  was  constructed.  Prior  to 
the  construction  of  the  road  there  were  two 
small  docks  upon  plaintiff's  land,  at  which 
vessels  landed,  access  to  which  was  had  by 
a  private  way  across  plaintiff's  land  from  a 
highway.  These  docks  were  within  the  strip 
of  land  acquired  by  the  company.  There 
was  also  a  dock  on  a  small  bay  near  the 
mouth  of  the  creek,  where  sand  was  shipped 
upon  scows  and  sail  vessels.  The  railroad 
crossed  this  bay  outside  of  the  land  under 
water  granted  to  plaintiff.  Opposite  the 
mouth  of  the  creek  the  road  crossed  on  a 
bridge,  the  bottom  of  which  was  four  feet 
above  high  water.  He/d,  that  an  action  was 
not  maintainable  to  compel  defendant  to 
restore  said  way  leading  to  the  docks,  or  to 
construct  a  drawbridge  so  as  to  give  vessels 
access  to  the  dock  in  the  bay ;  that  under 
the  condemnation  proceedings  the  railroad 
company  acquired  whatever  title  plaintiff 
had  either  in  the  upland  or  the  land  under 
water ;  that  by  the  grant  from  the  commis- 
sioners of  the  land  office  said  company  ac- 
quired both  such  reserved  rights  as  the 
state  had  in  the  land  theretofore  granted  to 
plaintiff  and  the  title  of  the  state  to  the  land 
occupied  by  the  road  in  front  of  plaintiff's 
premises,  not  included  in  his  grant;  and  so, 
that  defendant  owed  no  duty  to  plaintiff 
save  such  as  was  owed  to  every  riparian 
owner  whose  access  to  the  channel  of  the 
river  is  cut  off  by  its  road  ;  and  that  as  such 
owner  he  was  not  entitled  to  the  relief 
sought.  Kerr  v.  West  Shore  R.  Co.,  127 
N.  Y.  269,  27  N.  E.  Rep.  833,  37  N.  Y. 
5.  /?.  913;  affirming  53  Hun  634,  25  A''.  Y. 
S.  R.  1036,  6  A^.  Y.  Supp.  958. 

The  owner  of  land  bounded  upon  a  navi- 
gable river  has  property  rights  therein,  i.e., 
the  right  of  access  to  the  navigable  part  of 
the  stream  and  the  right  to  construct  a 
landing  or  wharf,  and  where  a  railroad 
company,  although  acting  under  legislative 
authority,  has  constructed  its  road  across 
the  water  front  of  such  owner,  and  thus  has 
deprived  him  of  access  to  the  navigable  part 
of  the  stream,  unless  he  has  granted  the 
right,  or  it  has  been  obtained  by  eminent 
domain,  he  is  entitled  to  recover  his  dam- 
ages. Rumsey  v.  New  York  5*  A''.  E.  R, 
Co.,  52  Am.  &•  Eng.  R.  Cas.  20,  133  N.  Y. 
79.  30  A'.  E,  Rep,  6^4,  44  A^.  Y,  S.  R.  248 ; 


RIPARIAN   RIGHTS,  11. 


91 


reversing  60  Hun  585,  39  A^.  Y.  S.  R.  894, 
15  A^.  Y.  Supp.  509.— Disapproving  Ste- 
vens V.  Patersoii  &  N.  R.  Co.,  34  N.  J.  L. 
532;  Buccleuch  v.  Metropolitan  Board  of 
Works,  L.  R.  5  Ex.  221.  Quoting  Yates 
V.  Milwaukee,  10  Wall.  (U.  S.)  497- 

The  proper  measure  of  damages  in  such 
case  is  the  diminished  rental  or  usable 
value  of  the  property  for  the  purpose  it  was 
used  for  before  the  building  of  defendant's 
road ;  not  what  it  would  have  been  if  the 
land  had  been  put  to  some  other  use  or 
other  structures  had  been  placed  upon  it. 
Jiuinsey  v.  New  York  Sf  N.  E.  R.  Co..  52 
Am.  &-  Eng.  R.  Cas.  20.  133  A'^,  Y.  79,  30  A: 
E.  Rep.  654,  44  A^.  Y.  S.  R.  248 ;  reversing 
60  Hun  585,  39  A^.  Y.  S.  R.  894,  15  A^.  Y. 
Supp.  509. 

In  an  action  by  plaintiffs,  who  were  the 
owners  of  certain  uplands  on  the  Hudson 
river,  to  recover  damages  sustained  by  the 
construction  by  defendant  in  1880  of  a  rail- 
road across  their  water  front,  which  cut  off 
their  access  to  the  water,  it  jpeared  that 
the  lands  under  water  in  front  of  plaintiffs' 
premises  were  not  granted  to  them  until  in 
March,  1885,  Held,  that  plaintiffs'  right  to 
recover  was  not  confined  to  the  period  since 
such  grant,  but  that  they  were  entitled  to 
damages  for  interference  with  their  prior 
property  rights  in  the  stream  as  riparian 
owners.  Rumsey  v.  New  York  &*  N.  E.  R. 
Co.,  52  Am.  &•  Eng,  R.  Cas.  20,  133  A^.  Y. 
79,  30  N.  E.  Rep,  654,  44  A'.  Y.  S,  R.  248 ; 
reversing  60  Hun  585,  39  A''.  Y,  5.  R.  894, 
IS  Al  Y.  Supp.  509.— Overruling  Gould 
V.  Hudson  River  R.  Co.,  6  N.  Y.  522. 

11.  Conveyances  of  riparian 
rights.* — The  right  of  a  riparian  proprie- 
tor upon  navigable  waters  to  improve,  re- 
claim, and  occupy  the  submerged  lands  out 
to  the  point  of  navigability,  although  origi- 
nally incident  to  the  riparian  estate,  may  be 
separated  therefrom,  and  be  transferred  to, 
and  enjoyed  by,  persons  having  no  interest 
in  the  original  riparian  estate.  Hanford  v. 
,S"/.  Paul  &»  D.  R.  Co.,  44  Am.  &*  Eng.  R. 
Cas.  205,  43  Afinn.  104,  42  N.  IV.  Rep.  596, 
44  A^,  IV.  Rep.  1 144. — Overruling  Lake 
Superior  Land  Co.  v.  Emerson,  38  Minn. 
406. 

An  adjacent  landowner  granted  a  right  of 
way  across  a  smi^M  bay  which  was  navigable, 
and  afterwards  the  water  was  filled  between 
the  track  and  the  mainland,  part  by  the 

*  Condemnation  of  riparian  rights;  effect  of, 
see  note,  39  Am.  &  Eng.  R.  Cas.  28. 


company  and  part  by  the  riparian  owner, 
and  the  company  laid  other  tracks  on  the 
filled  portion.  Held,  that  the  riparian  owner 
still  was  entitled  to  the  land  so  reclaimed, 
notwithstanding  the  state  had  made  a  grant 
to  the  company  of  the  land  originally  under 
water.  Saunders  v.  New  York  C.  &'H.  R.  R. 
Co.,  23  N.  Y.  Supp.  927,  30  Aod.  N.  Cas.  88 . 
affirmed  in  24  A'',  Y.  Supp.  659,  54  A''.  Y.  S. 
R.  364,  71  Hun  153;  modified  and  affirmed 
in  144  A^.  Y.  75,  38  A^.  E.  Rep.  992.— Quot- 
ing Illinois  C.  R.  Co.  v.  lUinoi."  '  \6  U.  S. 
387,  13  Sup.  Ct.  Rep.  no. 

A  landowner,  while  the  owner  of  certain 
lots  which  lay  partly  above  and  partly  below 
ordinary  high  tide  in  a  navigable  river,  con- 
veyed to  a  company  the  right  to  build  a 
wharf  on  land  in  front  of  the  lots,  but  ex- 
tending several  hundred  feet  out  into  the 
river,  upon  condition  that  a  wharf  should 
be  erected  thereon.  Subsequently  th:  lots 
were  conveyed  to  plaintiff.  After  the  wharf 
was  erected  it  was  conveyed  to  defendant 
railway  company,  and  burned  down,  and 
plaintiff  sued  to  restrain  its  reconstruction. 
Hid,  that  the  conveyance  by  the  original 
owner  of  the  lots  of  the  privilege  of  erecting 
the  wharf  in  front  of  the  lots  conferred  a 
complete  right  to  build  such  structure,  un- 
der Oreg.  Misc.  Laws,  ch.  63,  and  plaintiff, 
the  subsequent  grantee  of  the  lot,  took  it 
subject  to  the  right  conveyed  to  erect  the 
wharf,  and  was  estopped  from  objecting  to 
such  wharf.  McCann  v.  Oregon  R.  &*  N. 
Co.,  13  Oreg.  455,  II  Pac.  Rep.  236. 

A  conveyance  by  a  claimant  under  the 
donation  law,  by  deed  without  covenants,  of 
a  riparian  right  incident  to  the  land  covered 
by  his  claim,  and  prior  to  the  completion  of 
his  term  of  residenceand  cultivation,  passes 
no  title.  McCann  w.  Oregon  R.  &»  N.  Co., 
13  Oreg.  455,  11  Pac.  Rep.  236. 

The  proprietor  of  land  bordering  upon  a 
navigable  river  dedicated  a  portion  of  it  to 
a  town  for  public  highways,  and  the  same 
was  delineated  upon  a  map  as  extending  to 
high-watermark,  as  it  existed  at  the  time  of 
the  grant.  Held,  that  no  part  of  the  land 
or  water  adjoining,  and  lying  below  high- 
water  mark,  as  it  then  existed,  passed  to  the 
town  or  was  subject  to  any  easement  by  any 
such  dedication  or  grant,  since  all  such  land 
lying  below  high-water  mark  belongs  to  the 
state  and  could  only  be  dedicated  or  sub- 
jected to  an  easement  by  the  state  or  the 
grantees.  Hoboken  v.  Pennsylvania  R,  Co., 
16  Fed.  Rep,  816. 


I 


02 


RIPARIAN  RIGHTS,  12,  IS. 


m 


t      !    ' 


12.  Aeoretion.*  —  Where  a  railroad 
company  has  lawfully  built  its  embankment 
in  the  bed  of  a  river,  below  high-water 
mark,  and  the  high-water  mark  is  changed 
to  the  further  side  of  the  embankment,  the 
riparian  owner  cannot  claim  title  out  to  the 
last  high-water  mark,  on  the  ground  of 
change  of  boundary  by  accretion.  Chicago, 
B.  &>  Q.  R.  Co.  V.  Porter,  36  Am.  &*  Eng.  R. 
Cas.  405,  72  /owa  426,  34  N.  IV.  Rep.  286. 

The  owner  of  a  lot  bounded  on  one  side 
by  a  street  which  is  located  along  the  Mis- 
sissippi river  is  not  entitled  as  a  riparian 
proprietor  to  accretions  formed  on  the  op- 
posite side  of  the  street.  Ellinger  v.  Mis- 
iouri  Pac.  R.  Co.,  112  Mo.  525,  20  S.  W. 
Rep.  800. 

One  holding  land  under  a  deed  which  con- 
veyed "  to  the  bank  of  Lake  Ontario,  thence 
along  said  bank  "  is  entitled  to  lands  formed 
by  alluvial  deposits  extending  the  line  oi* 
the  bank  lakeward.  Which  completely  cover 
the  original  bank,  as  against  a  railroad 
owning  the  shore.  Throop  v.  Cobourg  &•  P. 
R.  Co.,  s  U.  C.  C.  P.  509. 

A  parcel  of  land  conveyed  being  de- 
scribed as  so  many  chains,  more  or  less, 
running  to  Lake  Ontario  and  thence  along 
the  lake  shore,  etc.,  and  a  beach  or  strip  of 
land  having  been  formed  by  accretion  be- 
tween what  was  then  the  line  and  the  edge 
of  the  lake  as  at  present,  which  was  claimed 
by  a  railroad— /<^/</,  that  the  owner  of  the 
land  was  entitled  to  such  strip  of  land  to 
the  water's  edge,  and  was  not  limited  to  the 
boundary  of  the  lake  as  it  was  when  the 
above  deed  was  made.  Buck  v.  Cobourg  &> 
P.  R.  Co.,  5  U.  C.  C.  P.  552. 

13.  The  Chicago  lake  front  case.f 
— The  general  government  made  a  grant  to 
the  state  of  Illinois  of  land  to  aid  in  the 
construction  of  a  railroad,  and  a  grant  of  a 
right  of  way  200  feet  wide  over  the  public 
domain ;  and  the  state  chartered  defendant 
company  as  the  beneficiary  of  the  grant, 
and,  among  other  things,  authorized  it  to 
build  into  the  city  of  Chicago  upon  condi- 
tions imposed  by  the  city  council.  By  an 
ordinance  adopted  June  24,  1852,  the  com- 
pany was  authorized  to  build  its  road  along 
the  shore  of  Lake  Michigan  near  the  margin 

*  Accretion,  rule  as  to,  see  note,  36  Am.  & 
Eng.  R.  Cas.  409. 

t  Right  of  riparian  owner  to  use  submerged 
lands  to  a  depth  of  practical  navigation,  see 
note,  ■^b  Am.  St.  Rep.  336.  See  also  notes,  19 
lu.  2.6;  5  Am.  &  Eng.  R.  Cas.  92. 


of  the  lake  to  a  certain  designated  point  in 
the  city.  Held,  that  building  and  appropri- 
ating 200  feet  along  such  shore  was  not  an 
intrusion  upon  the  public  domain  of  the 
state,  so  as  to  require  the  removal  of  the 
tracks,  or  ai.;'  restraint  in  their  use,  where 
the  company  had  conformed  to  the  pro- 
visions of  the  ordinance  for  the  protection 
of  the  shore,  and  of  individuals  and  prop- 
erty. Illinois  C.  R.  Co.  v.  Illinois,  146  U.  S. 
387, 13  Sup.  Ct.  Rep.  1 10 ;  affirming  33  Fed. 
Rep.  730. 

It  is  settled  law  of  this  country  that  the 
ownership  of,  and  dominion  and  sovereignty 
over,  lands  covered  by  tide  water,  'vithin  the 
limits  of  the  several  itates,  belong  to  the 
states  within  whicl'  ney  are  found,  with 
the  right  to  use  or  dispose  of  a  portion 
thereof,  when  that  can  be  done  without 
oubstantial  impairment  of  the  interest  of 
the  public  in  the  waters,  and  subject  to 
the  paramount  right  of  congress  to  control 
their  navigation.  Illinois  C.  R.  Co.  v.  ///»- 
nois,  146  U,  S.  387,  13  Sup.  CI.  Rep.  iio; 
affirming  33  Fed.  Rep.  730. 

The  above  doctrine  is  in  this  country 
held  to  be  applicable  to  lands  covered  by 
fresh  water  in  the  Great  Lakes  over  which  is 
conducted  an  extended  commerce.  These 
lakes  possess  all  the  general  characteristics 
of  open  seas,  except  in  the  freshness  of  their 
waters,  and  in  the  absence  of  the  ebb  and 
flow  of  the  tide.  Illinois  C.  R.  Co.  v.  Illi- 
nois, 146  [/.  S.  387,  13  Sup.  CI.  Rep.  no; 
affirming  33  Fed.  Rep.  730, 

But  the  company  never  acquired,  by  the 
reclamation  from  the  waters  of  the  lake  of 
the  land  upon  which  its  tracks  are  laid,  or  by 
the  construction  of  the  road  and  works  con- 
nected therewith,  an  absolute  fee  in  the 
tract  reclaimed,  with  a  consequent  right  to 
dispose  of  the  same  to  other  parties,  or  to 
use  it  for  any  other  purpose  than  the  one 
designated,  viz.,  the  construction  and  opera- 
tion of  a  railroad  thereon,  with  one  or  more 
tracks  and  works  In  connection  with  the 
road  or  in  aid  thereof.  Illinois  C.  R.  Co.  v. 
Illinois,  146  U.  S.  387,  113  Sup.  Ct.  Rep.  no; 
affirming  33  Fed.  Rep.  T»fi. 

Nor  did  the  company  acquire,  by  the 
construction  of  its  road  and  other  works, 
any  right,  as  a  riparian  owner,  to  reclaim 
still  further  lands  from  the  waters  of  the 
lake  for  its  use,  or  for  the  construction  of 
piers,  docks,  and  wharves  in  the  furtherance 
of  its  business.  The  extent  to  which  it 
could   reclaim   the  land   under  water  was 


RISKS. 


93 


limited  by  the  city  ordinance,  which  was 
simply  for  the  construction  of  a  railroad  on 
a  track  not  to  exceed  a  specified  width,  and 
of  works  connected  therewith.  Illinois  C. 
R.  Co.  V.  Illinois,  146  U.  5.  387.  13  Sup.  Ct. 
Rep.  1 10 ;  affirming  33  Fed.  Rep.  730. 

""he  construction  of  a  pier,  or  the  exten- 
si.n  of  any  land  into  navigable  waters,  for 
a  railroad  or  other  purposes,  by  one  not  the 
owner  of  lands  on  the  shore,  does  not  give 
the  builder  of  such  pier  or  extension, 
whether  an  individual  or  corporation,  any 
riparian  rights.  Illinois  C.  R.  Co.  v.  Illinois, 
146  U.  S.  387,  13  Sup.  Ct.  Rep.  no;  affirm- 
ing 33  P'ed.  Rep.  730. 

A  riparian  proprietor  is  entitled,  among 
other  rights,  to  access  to  the  navigable  part 
of  the  water  on  which  his  land  fronts,  and 
for  that  purpose  to  make  a  landing,  wharf, 
or  pier  for  his  own  use,  or  for  the  use  of  the 
public,  subject  to  such  general  rules  and 
regulations  as  the  legislature  nay  prescribe 
for  the  protection  of  the  public.  Illinois  C. 
R.  Co.  V.  Illinois,  146  [/.  S.  387,  13  Sup.  Ct. 
Rep.  no;  affirming  33  Fed.  Rep.  Ty>. 

Defendant  company  became  the  owner  of 
certain  lois  of  land  fronting  on  said  lake, 
and  finding  the  lake  in  front  of  these  lands 
shallow,  filled  it  in,  and  upon  the  reclaimed 
land  constructed  slips,  wharves,  and  piers, 
which  it  claims  to  own  and  to  have  the 
right  to  use  in  its  business.  Held,  that  it 
has  a  right  to  own  and  use  such  slips, 
wharves,  and  piers,  unless  the  trial  court 
shall  herea.'ter  find,  on  further  proof,  that 
they  are  so  constructed  as  to  extend  beyond 
the  point  of  practical  navigation  in  the 
lake ;  and  if  so,  to  that  extent  they  must  be 
abated.  Illinois  C.  R.  Co,  v.  Illinois,  146  U. 
S.  387,  13  Sup.  Ct.  Rep.  no;  affirming  33 
Fed.  Rep.  730. 

And  where  the  city,  by  ordinances,  has 
granted  the  company  additional  space  as  a 
means  of  approaching  its  station,  it  has  a 
right  to  continue  the  use.  Illinois  C.  R.  Co. 
v.  Illinois,  146  U.  S.  387,  13  Sup.  Ct.  Rep. 
no ;  affirming  33  Fed.  Rep.  730. 

Illinois  Act  of  April  16,  1869,  granting  to 
such  company  all  the  right  and  title  of  the 
stale  in  and  to  the  submerged  lands  con- 
stituting the  bed  of  Lake  Michigan,  for  the 
distance  of  one  mile  in  the  Chicago  harbor, 
cannot  be  invoked  so  as  to  extend  riparian 
rights  which  the  company  possessed  from 
its  ownership  of  lands  on  the  lake.  It  was 
not  competent  for  the  legislature  thus  to 
deprive  the  state  of  its  ownership  of  the 


submerged  lands  in  the  harbor,  and  of  the 
consequent  control  of  its  waters.  There- 
fore the  repealing  act  of  A.pril  15,  1673,  was 
valid  and  elective  to  restore  to  the  state  its 
original  title.  Illinois  C.  R.  Co.  v.  Illinois, 
146  II.  S.  387,  13  Sup.  Ct.  Rep.  no;  affir>n- 
'"'??■  33  ^'d.  Rep.  730.— Reviewed  in  Lake 
Roland  El.  R.  Co.  v.  Mayor,  etc.,  of  Balti- 
more, 54  Am.  &  Eng.  R.  Cas.  11,  77  Md. 
352,  26  Atl.  Rep.  510. 

The  fee  of  the  made  or  reclaimed  ground 
between  Randolph  street  and  Park  row, 
embracing  the  ground  upon  which  rest  the 
tracks  and  the  breakwater  of  the  railroad 
company  south  of  Randolph  street,  is  in  the 
city.  Subject  to  the  right  of  the  railroad 
company  to  its  use  of  the  tracks  on  ground 
reclaimed  by  it,  and  the  continuance  of  the 
breakwater,  the  city  possesses  the  right  of 
riparian  ownership,  and  is  at  full  liberty  to 
exercise  it.  Illinois  C.  R.  Co.  v.  Illinois,  146 
U.  S.  387,  13  Sup.  Ct.  Rep.  no;  affirming 
33  Fed.  Rep.  730. 


BISKS. 


Allegation  of  neglifrence  in  subjecting  em- 
ploye to  extraordinary,  see  Em?loy£s,  In- 
juries TO,  518, 

Assumption  of,  by  drover  on  cattle  train,  see 
Carriage  of  Live  Stock,  127,  128. 

— employes,  see   Employes,   Injuries 

TO,  182-295. 

.— when  question  for  the  jury,  see 

EMPLovis.  Injuries  to,  704-752. 

— licensees,  see  Licensees,  Injuries  to, 

13,  14. 

owner  of  cattle  and  company  re- 
spectively, see  Animals,  Injuries  to,  46. 

— private  car,  see  Private  Cars, 

2. 

passenger,  in  getting  on  cars',  see 

Carriage  of  Passengers,  367. 

traveling  on  freight  train,,  see 

Carriage  of  Passengers,  291. 

person  driving  on  track,  see  Streit 

Railways,  235. 

— —  killed,  instructions  as  to,  see 

Death  by  Wrongful  Act,  313. 

shipper,  see  Carriage  OF  Live  Stock, 

9;  Carriage  OF  Merchandise,  115. 

in  special  contract,  see  Carriage 

OF  Live  Stock,  70,  71. 

trespasser,  see  Trespassers,  Injuries 

to,  76. 

on  track,  see  Trespassers,  Inju- 
ries to,  22. 

to  save  life  or  property  see  Employes. 

Injuries  to,  334, 


fA 


n 


si 

m 

f-i  r 


94 


RIVAL    LOCATION— ROUTE. 


!  . 


i|  ! 


Aiiumption  of  when  contributory  negligence, 
see  Contributory  NEr.i.icENCK,  32-40. 

Bspoture  to  unnecessary,  liability  for,  see 
Fellow-servants,  60. 

Increase  of,  right  to  compensation  for,  in 
proceedings  to  lay  out  street  over  rail- 
way, lee  Crossing  of  Streets  and  High- 
ways, 77. 

Negativing  assumption  of,  by  deceased,  see 
Death  by  Wrongful  Act,  145. 

Of  fire  assumed  by  adjacent  landowner,  see 

FlRKS,  20. 

—  negligence  of  fellow-servants,  assumption 

of,  see  Fellow- servants,  3. 
Sufficiency  of  evidence  to  show  assumption 

of,  see  Employes,  Injuries  to,  G20. 
Vice-principal's  negligence  not  an  assumed 

risk,  see  Fellowsekvants,  76. 
What  are  assumed  by  infant  employes,  see 

Employes,  Injuries  to,  470,  471. 


RIVAL  LOCATION. 
Of  route,  see  Location  of  Route,  25-31> 


RIVERS. 
Crossing,  in  constructing  road,  see  Construc« 

TioN  OF  Railways,  8. 
What  constitutes  a  taking  of  navigable,  see 

Eminent  Domain,  109. 


ROADBED. 

Assumption  of  risk  from  defects  in,  see  Em- 
ployes, Injuries  to,  189. 

Construction  and  repair  of,  as  towards  pas- 
sengers, see  Carriage  of  Passengers, 
161-179. 

Doty  of  company  as  to  safety  of,  see  Em- 
ployes, Injuries  to,  45-54. 

Failure  of  employe  to  examine,  when  con- 
tributory negligence,  see  Employes,  Inju- 
ries to,  345. 

Notice  or  knowledge  of  defects  in,  see  Em- 
ployes, Injuries  to,  227. 

Risks  assumed  from  defects  in,  see  Employes, 
Injuries  to,  287. 

When  exempt  firom  taxes,  see  Taxation, 
163. 

—  subject  to  taxation,  see  Taxation,  77* 


I  it 


ROAD  MASTERS. 

As  experts,  see  Witnesses,  185. 

^-  fe'.low-servants  with  other  employes,  see 
Fellow-servants,  409,  410. 

Authority  of,  to  employ  physician,  see  Medi- 
cal Services,  10. 

Implied  powers  of,  see  Agency,  10. 


ROADS. 
Abandonment  of,  see  Abandonment,  2*  8* 


ROBBERY. 

Of  passenger,  liability  of  company,  see  Bag- 
gage, 85;  Carriage  of  Passengers, 
320. 

Prosecutions  for,  see  Criminal  Law,  41. 

When  a  defense  to  carrier,  see  Carriage  or 
Merchandise,  19. 


ROCX  ISLAND. 
Military  reservation  at,  see  PuBUC  Lands, 
32. 


ROLLING  STOCK. 

Claims  against  United  States  for  Mle  of,  set 
Claims  against  United  States,  lO. 

—  for,  when  prior  to  mortgage,  see  Mort- 

gages, 98. 

Construction  of  contracts  for,  see  Contracts, 
100. 

Lien  for  price  of,  see  Liens,  3. 

Mortgages  of,  see  Mortgages,  47-60. 

Payment  of  claims  for,  by  receivers,  see  Re- 
ceivers, 84. 

Receiver,  how  far  bound  by  contracts  for,  see 
Receivers,  61. 

Situs  of,  for  taxation,  see  Taxation,  132. 

When  deemed  fixtures,  see  Fixtures,  9. 

—  may  be  reached  in  attachment,  see  Attach* 

MENT,  ETC.,  29. 

—  subject  to  execution,  see  Execution,  10. 

mechanic's  lien,  see  Liens,  26. 

taxation,  see  Taxation,  92-94. 


ROUND-TRIP  TICKETS. 
See  Tickets  and  Fares,  60-84. 


ROUTE. 

Change  of,  after  election  to  give  municipal 
aid,  effect  of,  see  Municipal  and  Local 
Aid,  151. 

effect  on  donation,  see  Municipal  and 

Local  Aid,  264. 

—  —  when  releases  subscriber  to  stock,  see 

Subscriptions  to  Stock,  124,  125. 
Choice  of,  under    charter    provisions,    see 

Charters,  08. 
Conditions  in  subscription,  as  to  location  of, 

see  Municipal  and    Local  Aid,  234; 

Subscriptions  to  Stock,  220-229. 
Construction  of  bill  of  lading  as  respects,  see 

Bill  of  Lading,  38. 

—  —  subscription  as  regards,  see  Subscrip- 

tions TO  Stock,  25. 


RULES. 


08 


Divertlon  of  goods  from,  extinguiihes  lien 
fur  charges,  see  Carriage  of  Merchan- 
DISB,  890. 

_ liability  of  carrier  for,  see  Car- 
riage OP  Merchandise,  630. 

usual,  see  Carriage  of  Merchan- 
dise, 165,  167. 

Effect  of  change  of,  after  mortgage,  see 
Mortgages,  46. 

on  right  to  railway  aid,  see  Mu- 
nicipal and  Local  Aid,  210. 

Liability  of  initial  carrier  for  diverting  goods 
from,  see  Carriage  of  Merchandise, 
655,  666. 

Limitation  of  liability  lost  by  diverting  goods 
from,  see  Carriage  of  Merchandise, 
485. 

Location  of,  see  Location  of  Route. 

road  must  be  within  boundary  lines  of, 

see  Elevated  Railways,  20. 

Of  elevated  railway,  selection  of,  see  Ele- 
vated Railways,  12. 

Powers  of  commissioners  as  to,  see  Rapid 
Transit  Acts,  2. 

Question  of,  how  far  involved  on  assessment 
of  damages,  see  Eminent  Domain,  555. 

Selection  of,  by  carrier,  see  Carriage  of  Mer- 
chandise, 46. 


RULES. 

Against  traveling  on  freight  trains,  violation 
of,  by  passenger,  see  Carriage  of  Pas- 
sengers, 204,  205. 

Allegation  of  failure  to  adopt,  see  Employ£s, 
Injuries  to,  520. 

As  to  care  required  from  carrier  of  passen- 
gers, see  Carriage  of  Passengers,  137- 
160. 

carriage  of  baggage,  effect  of  non-com- 
pliance with,  see  Baggage,  1 1. 

duty  to  employes  respecting  safety  of 

machinery,  appliances,  etc.,  see  Em- 
ployes, Injuries  to,  03-103. 

liability  of  master  for  injury  to  servant 

caused  by  negligence  of  vice-principal, 
see  Fellow-servants,  73-105. 

Compliance  with,  by  passenger,  how  pleaded, 
see  Ejection  of  Passengers,  85. 

Contribut'>ry  negligence  while  disobeying, 
see  Emi>LOY&s,  Injuries  to,  415-422. 

Crossing  tracks  in  violation  of,  contribx'tory 
negligence,  see  Carriage  of  Passengers, 
452. 

Disobedience  of,  when  contributory  negli- 
gence, see  Carriage  of  Passengers, 
36i  ;  Stations  and  Depots,  117. 

Disobeying,  in  getting  on  cars,  contributory 
negligence,  see  Carriage  of  Passen- 
gers, 369. 


Ejection  from  station  for  violation  of,  see 
Stations  AND  Depots,  107. 

—  of  passenger  for   violation  of,  see  Ejec- 

tion of  Passengers,  1. 

Expulsion  of  passenger  for  disobedience  of, 
see  Street  Railways,  520. 

Failure  of  vice-principal  to  promulgate,  lia- 
bility of  company,  see  Fellow-servants, 
89. 

For  ascertaining  damages  for  injuries  at 
crossing,  see  Crossings,  Injuries,  etc., 
at,  363. 

—  -  assessing  damages,  see  Damages,  lOl. 
in  actions  for  causing  death,  see 

Death  by  Wrongful  Act,  373. 

—  computation  of  damages,  see  Elevated 

Railways,  138. 

—  estimating  damages,  instructions  giving, 

see  Trial,  132,  158. 

land  damages,  see  Eminent  Domain, 

451-472. 

—  management  of  stations,    see    Stations 

AND  Depots,  64-57. 

Forbidding  collateral  impeachment  of  judg- 
ment, see  Eminent  Domain,  864-866. 

Instructions  touching  employes'  obedience  or 
disobedience  of,  see  EMPLOYfis,  Injuries 
to,  654. 

Negligence  of  company  with  respect  to 
promulgation  of,  see  Employes,  Injuries 
TO,  664. 

Non-liability  for  negligence  of  fellow-ser- 
vants in  disobeying,  see  Fellow-ser- 
vants, 20. 

Obedience  or  disobedience  of,  when  consti- 
tutes contributory  negligence,  see  Em- 
ployes, Injuries  TO,  423-456. 

Of  carriers,  admissibility  of,  in  evidence,  see 
Carriage  or  Passengers,  668. 

—  —  of  goods,  see  Carriage  of  Merchan- 

dise, 410-429. 
— passengers,  see  Carriage  of  Pas- 
sengers, 60-88. 

—  company,  admissibility  and  effect  of,  as 

evidence,  see  Evidence,  244. 

— of,  in  evidence,  see  Employes,  Inju- 
ries TO,  589. 

as  to  getting  on  or  off  by  front  platform, 

see  Street  Railways,  407-409. 

construction  of,  when  question  for  ez« 

perts,  see  Witnesses,  143. 

—  —  duty  to  make   and  enforce,  see  Em- 

ploy£s.  Injuries  to,  18-26. 

evidence  of,  in  actions  for  ejection  of 

passengers,  see  Ejection  of  Passengers, 
96. 

opinion  of  witness  as  to  interpretation 

of,  see  Witnesses,  102. 

reasonableness  of,  a  question  of  law- 
see  Trial,  98. 


I 


m 


s' 


M 


RUNNING   POWERS— ST.    PAUL   &  P.   R.  CO.,  1. 


I  i'\ 


Of  company  when  provable  by  parol,  see  Evi- 

DENCK,    140. 

—  corporations,  admissibility  of  evidence  of. 

see  EviDKNca,  70. 

—  evidence  as  to  damages,  see  Damages,  83- 

08. 

—  non-liability  for  negligence  of  fellow-ser- 

vants, see  Fellow-servants,  1-72. 

—  other  companies,  admissibility  of  evidence 

of,  see  Evidence,  78. 

—  relief  associations,  evidence  of,  see  Relief 

AssociAiioNs,  3. 

—  union  depot  companies  and  their  enforce- 

ment, see  Union  Depot  Companies,  7. 
Requiring  identification  of  passenger,  stamp- 
ing  of  tickets,  etc.,  see    Tickets  and 
Fares,  78-84. 

—  passengers  to  purchase  tickets,  see  Ejec- 

tion OF  Passengers,  23. 

—  production  of  ticket,    see   Tickets   and 

Fares.  33,  34. 

—  purchase   of  tickets,    see   Tickets    and 

Fares,  23. 
Rescission  of,  by  conductor,  scc.Comouctor, 

A. 


Riding  in  baggage  car  in  violation  of,  see 

Carriage  of  Passengers,  405. 
Riding  on  freight  trains  in  violation  of,  when 

contributory  negligence,  see  Carriage  or 

Passengers,  350. 
platform  in  violation  of,  see  Carriage 

OF  Passengers,  470. 
To  plead,  in  ejectment,  see  Ejectment,  24. 
Violation  of,  as  defense  to  accident  insurance 

policy,  see  Accident  Insurance,  11. 
by  passenger  as  a  defense,  see  Death 

BV  Wrongful  Act,  173. 


RUNNING  POWERS. 

Liability  of  company    having,    for  killing 
stock,  see  Animals,  Injuries  to,  647. 

—  to  passengers  of  carrier  having,  see  Ca> 

RiAGE  OF  Passengers,  520. 
Under  American  authorities,  see  Leases,  etc., 
108-117. 

—  English  statutes,  see  Lbases,  etc.,  118- 

128. 


\\\'\ 


Nil 


SAFETT. 

Of  appliances,  opinion  of  witness  as  to,  see 
Witnesses,  OO. 

when  a  question  for  experts,  see  Wit- 
nesses, 133. 

—  brakes,  right  of  employe  to  rely  on,  see 

Employes,  Injuries  to,  100. 

—  cars,  duty  to  employes  as  to,  see  Em- 

ployes,  Injuries  TO,  118-128. 
track,  and  appliances,  duty  to  passen- 
gers as  to,  see  Street  Railways,  320, 
330. 

—  employes,  disobedience  of  rules  intended 

to  promote,  see  Employes,  Injuries  to, 
428. 
duty  to  provide  for,  see  Employes,  In- 
juries to,  1-17. 

—  engines,  duty  to  employes  as  to,  see  Em- 

ployes, Injuries  to,  120-133. 

—  given  rate  of  speed,   opinions  as  to,  see 

Witnesses,  130. 

—  platforms  and  premises,   when  question 

for  jury,  see  Stations  and  Depots,  141. 

at  stations,  see  Stations  and  Depots, 

76-88. 

—  station  buildings,  see  Stations  and  De- 

pots, 00. 

—  wharves,    liability  of  owner  as  to,  see 

Wharves  and  Piers,  4. 
Question  of.  when  for  the  jury,  see  Negli- 
gence, 00. 


SAFETT  VALVES. 
Patents  for,  see  Patents  for  Inventions,  49. 


ST.  LOUIS. 
Joint  use  of  street-car  tracks  in,  see  Strebt 
Railways,  248. 


ST.  PAUL  &  P.  R.  CO. 

1.  Creation  of.* —  Minnesota  Act  of 
March  lo,  1862,  created  the  above  company, 
and  did  not  merely  continue  the  old  cor- 
poration of  the  Minnesota  &  Pacific  rail- 
road company.  Therefore  the  former  is  a 
diflferent  corporation,  and  cannot  be  sued  at 
law  on  bonds  issued  by  the  latter.  Hopkins 
V.  St.  Paul&'P.  X.  Co.,  2  Dill.  (U.  S.)  396. 

Upon  the  organization  by  the  persons 
named  in  the  above  act,  the  company  became 
vested  with  the  roads,  lands,  and  franchises, 
inrluJing  the  corporate  franchise,  of  the 
Minnesota  &  Pacific  R.  Co.  First  Div.  St. 
P.  (S-  P.  R.  Co.  v.  P archer,  14  Minn.  297 
(Gil.  224).— Followed  in  Secombe  v.  Mil- 
waukee &  St.  P.  R.  Co.,  2  Dill.  (U.  S.)  469- 

Upon  a  transfer  by  the  company  to  cer- 
tain persons  of  a  portion  of  its  line,  and  the 
lands  and  franchises  pertaining  thereto,  it 

•  See  also  Land  Grants,"  1 10. 


SALARIES— SALES. 


97 


waa  competent  for  the  legislature  to  consent 
that  such  persons  should  organize  as  a  cor- 
poration distinct  from  that  company.  In 
view  of  section  21  of  the  charter  of  the 
Minnesota  &  Pacific  railroad  company, 
this  would  not  be  forming  a  corporation  by 
special  act  within  the  meaning  of  the  con- 
stitution. Ftrs/  Div.  St.  P.  <S-  P.  K.  Co., 
V.  Parcher,  14  Minn,  iofj  (Gil.  224).— Re- 
ferred TO  IN  Welsh  V.  First  Div.  St.  P. 
&  P.  R.  Co.,  25  Minn.  314. 

To  the  organization  by  such  persons  as 
the  First  Division  of  the  St.  Paul  &  Pacific 
railroad  company,  the  legislature  consented 
by  the  act  of  March  4,  1864,  relating  to  the 
registry  of  railroad  organizations,  and  the 
act  of  February  6,  1866,  entitled  "  An  act  to 
legalize  and  confirm  tiie  organization,  acts, 
and  proceedings  of  the  First  Division  of  the 
St.  Paul  &  Pacific  Railroad  Company,  and 
in  relation  to  the  character  and  powers  of 
said  company,"  and  thereupon  said  com- 
pany became  a  body  corporate.  First  Div. 
St.  P.  (S-  P.  R.  Co.  V.  Parcher,  14  Minn. 
297  (Gil.  224).—  Followed  in  Secomb  v. 
Milwaukee*  St.  P.  R.  Co.,  49  How.  Pr.  (N. 
Y.)  75- 


SALARIES. 

Loss  of,  as  an  element  of  damages,  see  Car- 
riage OF  Passengers,  620. 

Of  mail  clerks,  inspectors,  etc.,  see  Carriage 
OF  Mails,  10. 

—  officers,  power  of  directors   to   fix,  see 

Directors,  etc,  35. 

when  may  be  reached  in  attachment, 

see  Attachment,  etc,  30. 

—  presidents,  see  President,  13. 

—  railway  commissioners,  see  Railway  Com- 

MISSIONEKS,  42,  43. 

To  receiver  in  lieu  of  commission,  see  Re. 

CEIVERS,  150. 


SALES. 


Action  for  refusal  to  complete  purchase,  see 

Bonds,  60. 
As  evidence  of  value,  see  Evidence,  2. 

—  to  stoppage  in  transitu,  see  Carriage  of 

Merchandise,  401-517. 
By  assignee  for  creditors,  see  Assionment  for 

Benefit  of  Creditors,  6. 
in  bankruptcy,  see  Bankruptcy,  7. 

—  guardian,  validity  of,  see  Guardian  and 

Ward,  2. 

—  purchasers  of  road  to  existing  corporation, 

see  Reorganization,  3. 

—  receivers,  see  Receivers,  111-116. 

7  D.  R.  D.--7 


By  receivers  In  foreclosure,  see  Mortoaois, 
231. 

—  trustees  under  power  given  in  mortgage, 

see  Mortgages,  143. 

Damages  for  loss  of  contract  of,  see  Car. 
riage  of  Merchandise,  784. 

Distinguished  from  bailment,  see  Bailment,]. 

Effect  of  transfer  of  bill  of  lading  upon  rights 
of  seller,  see  Bills  of  Lading,  122, 123. 

Extinguishment  of  mortgage  by,  see  Mort- 
gages, 300. 

For  taxes,  action  to  set  aside,  see  Taxation, 
332. 

power  to  purchase  at,  see  Ultra  Vires, 

17. 

Goods  in  hands  of  carrier  not  attachable  for 
seller's  debts,  see  Carriage  of  Merchan- 
dise, 302. 

In  foreclosure,  see  Mortgages,  235-303. 

—  suits   to  foreclose   deeds   of  trust,    see 

Deeds  of  Trust,  20. 

Liability  of  carrier  to  seller  and  purchaser 
respectively,  see  Carriage  of  Merchan- 
dise, 604-509. 

Loss  of  contract  for,  when  measure  of  dam- 
ages, see  Carriage  of  Merchandise, 
763. 

Measure  of  damages  for  breach  of  contracts 
of,  see  Damages,  52,  53. 

Of  corporate  bonds,  see  Bonds,  15. 

property,    authority   of  president  to 

make,  see  President,  3. 

by   directors,  see  Directors,  etc., 

40. 

purchase  of,  by  directors,  see  Direc- 
tors, ETC,  50. 

—  coupons,  see  Coupons,  6. 

—  cross-ties  to  independent  contractor,  lia- 

bility for  price,  see  Independent   Con- 
tractors, 28. 
~  ferryboats,  see  Ferries,  12. 

—  ferry  franchise,  see  Ferries,  4. 

Of  goods  to  enforce  lien  for  charges,  see 
Carriage  of  Merchandise,  308,  390  ; 
Charges,  71. 

—  government   railroads,    see  Government 

Railroads,  3. 

—  land  by  trustee,  see  Trusts  and  Trustees^ 

8. 
for  non-payment  of  taxes,  see  Taxa. 

tion,  32€Ki30,  388. 

granted,  see  Land  Grants,  58,  82. 

requirements  of  the  statute  of  frauds, 

see  Contracts,  17. 

—  perishable  goods  by  carrier,  see  Carriage 

of  Merchandise,  162,  163. 

—  pledged  stock  on  default  of  payment,  see 

Stock,  48. 

—  property  attached,  see  Attachment,  etc, 

69. 


SALES,  1. 


i  '^. 


iil 


I 


Of  property  levied  on  by  execution,  see  Exe- 
cution. 17,  18. 

—  rails  and  cars  for  non>payment  of  taxes, 

see  Taxation,  303. 

—  road  does  not  divest  lien  for  taxes,  see 

Taxation,  300,  310. 

.—  —  or  franchise,  forfeiture  for,  see  Dissolu- 
tion, KTC,  8. 

when  releases  subscriber  to  stocic,  see 

Subscriptions  to  Stock,  120,  130. 

—  similar  property,  eyidence  of,  on  assess- 

ment of  land  damages,  see  Eminent  Do- 
main, 020^  628. 

—  stock,  see  Stock,  50-00. 

after  failure  to  collect  by  suit,  see  Sub- 
scriptions TO  Stock,  183. 

—  —  before  suit  for  assessments,  see  Sub- 

scriptions to  Stock,  182. 

distinguished  from   subscription,   see 

Subscriptions  to  Stock,  5. 

—  —  fornon-payment  of  assessment,  see  Sub- 

scriptions to  Stock,  185,  186. 

—  —  power  of  personal  representative  to 

make,  see  Executors  and  Administra- 
tors, 10. 

—  superfluous  lands  under  Canadian  expro- 

priation   acts,    see    Eminent    Domain, 

1231. 
English  compulsory   purchase 

laws,   see    Eminent    Domain,    1100- 

1123. 
On  foreclosure  of  mechanic's  lien,  see  Liens, 

42. 
Provisions  for,  in  judgment  of  foreclosure,  see 

Mortgages,  200. 
Set«off  in  actions  for  price,  see  Sxt-off,  etc., 

6. 
Weight  of  evidence  of,  as  to  value  of  land, 

see  Evidence,  271. 
Without  foreclosure,  under  power  in  mort- 
gage, see  Mortgages,  164. 
See  also  Judicial  Sale. 

1.  What  coiisf  itutes  a  sale— Valid- 
ity.*—A  company  bought  certain  articles 
from  plaintiff,  who  agreed  to  take  pay  for 
the  same  in  capital  stocIc  of  the  company, 
but  nothing  was  said  as  to  the  value  the 
stock  was  to  bear.  Heid,  that  the  par  value 
should  be  inferred.  TMey  v.  Augusta,  G. 
&>  5.  H.  Co.,  83  Ga.  757,  10  S.  E.  Rep.  448. 

Where  a  contract  for  the  sale  and  delivery 
of  railroad  ties,  in  the  beginning  purports 
to  be  entered  into  by  the  president,  and  re- 
cites that  the  other  is  to  furnish  the  ties  to 
the  company,  and  it  is  signed  in  the  name 
of  the  company  by  its  president,  it  will  be 


•  Manner  of  acceptance  must  comply  with 
offer,  see  note,  29  Am.  &  Eng.  R,  Cas.  585. 


construed  as  obligating  the  company  to  pay 
the  price.  Havana,  R.  &*  E.  P.  Co.  v. 
Walsh,  85  ///.  58. 

The  purchase  of  a  lot  of  cottor.  by  a  rail- 
road company,  chartered  and  domiciliated 
in  Mississippi,  from  a  party  residing  in 
Louisiana,  is  not  affected  by  the  prohibi- 
tions contained  in  La.  Act  of  1855,  that 
"  no  corporation  shall  engage  in  mercantile 
or  agricultural  business  nur  in  commission, 
brokerage,  stock  jobbing,  exchange,  or 
banking  business  of  any  kind."  The  statute 
only  refers  to  the  buying  and  selling  of  arti- 
cles of  merchandise  as  an  employment,  and 
implies  operations  conducted  with  a  view 
of  realizing  the  profits  which  come  from 
skilful  purchase,  barter,  speculation,  and 
sale.    Graham  v.  Hendricks,  32  La,  Ann. 

523- 

A  company    purchased  two  locomotive 
engines  and  gave  its  promissory  notes  there- 
for. After  a  part  had  been  paid,  it  executed 
an  absolute  bill  of  sale  of  the  engines  to  the 
manufacturers,  taking  back  an  agreement  to 
sell  the  engines  to  the  company  upon  pay- 
ment of  the  rest  of  the  notes,  and  to  allow 
it  the  use  of  the  engines  meanwhile.    The 
engines  were    formally    delivered    to    the 
manufacturers,  but  remained  in  the  actual 
possession    of   the    corporation,    and    the 
agreement  was  not  recorded.    Afterwards 
a  new  agreement  was  substituted,  by  which 
the  manufacturers  leased  the  engines  to  the 
corporation,  and  agreed  to  sell  and  transfer 
them  upon  being  paid  the  amount  remain- 
ing due.    Held,  that  the  bill  of  sale  was 
void  as  against  creditors  of  the  corporation ; 
that  the  bill  of  sale  and  contemporaneous 
agreement  constituted  at  most  only  a  mort- 
gage, so  that  the  property  was  still  liable  to 
attachment  against  the  corporation;  and 
that  the  subsequent  agreement  gave  the 
manufacturers  no  additional  right  in  the  en- 
gines.   Potter  V.  Boston  Locomotive  Works, 
12  Gray  (Mass.)  154. 

A  contract  to  furnish  ties  and  other  ma- 
terial, and  to  construct  and  complete  a 
definite  line  of  single-track  railroad,  for  a 
given  compensation,  payable  in  instalments 
as  the  work  progresses,  upon  monthly  esti- 
mates of  the  amount  of  work  done  and  ma- 
terial furnished,  is  a  contract  for  work  and 
material,  and  not  of  sale.  Until  placed  in 
the  track,  the  property  in  ties  furnished 
unde.'  such  a  contract  remains  in  the  con- 
tractor, even  though,  prior  thereto,  they 
may  have  been  inspected  by  the  company 


SALES,  2,  3. 


99 


"m 
M 


and  Included  in  the  monthly  estimates. 
Chattdl*r  v.  De  Graff,  22  MittH.  471, 1 8  Am. 
Ry,  Rep.  425. 

A  railroad  company  organized  in  this 
state,  but  extending  into  another  state,  and 
which  is  authorized  to  raise  money  by  a  sale 
of  its  bonds,  may  sell  the  bonds  either  with- 
in or  without  the  state,  and  the  transaction 
will  be  a  sale  and  not  a  loan.  Bunk  0/  Ash- 
land \.  Jones,  16  O/ii'o  Sf,  145. 

Before  such  a  sale  can  be  declared  in- 
valid  as  contravening  the  settled  policy  of 
the  state,  the  repugnancy  must  be  plain  and 
substantial.  The  fact  that  the  bonds  bear 
a  higher  r;L>.e  '  f  interest  in  the  state  than 
mny  be  prescribed  for  similar  bonds  issuec' 
un  .'  I  authority  of  the  state,  but  which  are 
authorized  to  be  sold  at  any  price,  does  not 
create  such  repugnancy.  Bank  of  Ashland 
V.  Jones,  16  Ohio  St.  145. 

2.  Sale  or  ballnieut.  —  An  individual 
agreed  to  furnish  materials,  except  certain 
iron  boxes,  and  build  cars  for  defendant 
company,  the  company  agreeing  to  furnish 
the  boxes,  and  to  deduct  the  price  from  the 
price  of  the  cars.  There  was  a  delay  in  fur- 
nishing the  boxes,  which  extended  the  time 
for  completing  the  cars,  during  which  time 
they  were  destroyed  while  in  the  builder's 
possession.  Held,  that  this  was  an  agree- 
ment for  the  sale  of  the  cars  when  con- 
structed, and  the  title  thereto  still  remain*.  ' 
in  the  builder  at  the  time  of  the  loss,  which 
would  prevent  him  from  recovering  against 
the  company.  McConihe  v.  New  York  &* 
E.  R.  Co.,  20  A'.  Y.  495.— Reviewed  in 
Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Heck,  50 
Ind.  303. 

A  railroad  company  ek:iered  into  contract 
with  a  rolling-mill  company  for  renewal  of 
rails,  in  pursuance  of  which  the  railroad 
company  delivered  its  old  rails  to  the  roll- 
ing-mill company;  and  the  latter,  adding 
new  iron  as  was  needed,  remade  them  into 
new  rails.  While  this  was  going  on,  the 
rails  were  seized  on  execution  as  the  prop- 
erty of  the  rolling-mill  company.  Held:  (i) 
that  the  right  of  property  to  the  iron  while 
the  work  was  going  on,  and  to  the  rails 
when  completed,  remained  in  the  railway 
company  ;  (2)  that  the  transaction  between 
the  two  companies  is  of  the  nature  of  the 
bailment  denominated  by  law  writers  of  ;he 
class  locaU'o  operis  faciendi.  The  transac- 
tion was  a  regular  contract  of  hire,  if  the 
railway  company  furnished  the  chief  or 
principal  part  of  the  material  of  the  new 


rails ;  and  if  such  was  the  case,  the  proprie- 
tary interest  in  the  iron  let  was  not  changed. 
The  material  inquiry  is,  which  company 
furnished  the  chief  or  principal  portion  of 
the  material  for  the  manufacture  of  the 
new  raiU.  Arnott  v.  Kansas  Pac.  R.  Co.,  19 
Kan.  95,  14  Am.  Ry.  Rep,  246. 

3.  IlcqiiirenieiitH  oi  the  statute  of 
lyaiidH.  — Defciul  uit  company  agreed  gen- 
erally, by  parol,  to  1,1  ko  railroad  ties  of  plain- 
tiff, but  no  definite  amount  or  number  was 
specified.  Held,  that  the  acceptance  of  a 
certain  num.'.  r  can  nut  be  h^'d  to  obligate 
the  company  to  receive  others.  A  parol 
contract  to  furnish  i  :s  to  the  amount  of 
$50  or  more  in  value  is  not  a  contract  lor 
work  and  labor,  but  for  the  sale  of  goods 
and  chattels,  and  within  the  statute  of 
frauds.  Russell  v.  Wisconsin,  M.  &*  P,  R, 
Co.,  39  Minn.  145,  39  N.  W.  Rep.  302. 

Plaintiff  made  a  parol,  executory  contract 
to  sell  ties  to  a  company,  exceeding  in  value 
$50.  Held,  that  the  receiving  of  the  ties  by 
the  company's  employes  was  no  evidence 
of  an  acceptance  under  the  contract  by  the 
company  so  as  to  take  the  case  out  of  the 
statute  of  frauds.  Such  an  acceptance 
might  bind  the  company  to  pay  for  the  ties 
received,  but  not  so  as  to  bind  it  by  the 
contract.  Wade  v.  New  York  &»  O.  M.  R. 
Co.,  52  A^.  Y.  627,  mem. 

Plaintiff  contracted,  by  parol,  to  sell,  and 
defendant  to  purchase,  1000  cords  of  wood, 
or  so  much  thereof  as  plaintiff  could  cut 
and  deliver,  at  a  specified  price  per  cord ; 
no  time  for  performance  was  fixed.  Plain- 
tifl  delivered,  and  received  pay  for,  about 
322  cords,  and  had  about  200  cords  more 
ready  for  delivery ;  this  he  commenced  to 
draw,  and  had  piled  nineteen  cords  by  the 
side  of  defendant's  road,  when  he  was  noti- 
fied not  to  bring  more,  that  defendant  did 
not  want  it ;  and  it  refused  to  pay  for  the 
nineteen  cords.  In  an  action  to  recover 
damages— A^/r/,  that  the  partial  delivery  and 
acceptance  answered  the  requirements  of 
the  statute  of  frauds,  and  validated  the  con- 
tract ;  that  the  contract  was  not  one  that 
could  not  be  performed  within  a  year ;  also, 
that  the  contract  was  not  so  indefinite  as  to 
be  void.  Van  Woert  v.  Albany  ^  S.  R. 
Co.,  67  N.  Y.  538  ;  affirming  i  T.&'C.  256. 

In  an  action  to  recover  the  value  of  cer- 
tain wood  sold,  standing  at  the  time  of  the 
sale  upon  the  land  of  plaintiff,  it  was  in  evi- 
dence  that  the  wood  was  sold  by  the  cord. 
Held,  that  plaintiff  was  entitled  to  recover. 


i 


'pi 


100 


SALES,  4-7. 


j 

L 

! 

and  that  no  memorandum  of  the  contract 
in  writing  was  necessary,  because,  when  cut 
and  corded,  the  wood  became  personal 
property.  Green  v.  Nor/A  Carolina  K.  Co., 
73  A^.  Car.  524. 

4.  Delivery,  generally.  —  Defendants 
entered  into  a  contract  with  the  representa- 
tives of  a  company  to  complete  a  stated 
part  of  a  railroad.  In  executing  such  con- 
tract, they  appropriated  and  used  certain 
ties  and  timber.  Held,  in  an  action  to  re- 
cover the  value  thereof,  that  it  was  proper 
to  give  in  evidence  the  memorandum  of 
agreement  between  plaintiffs  and  the  com- 
pany, for  the  purpose  of  showing  whether 
the  hauling  of  said  ties  and  timber  and 
placing  them  along  the  right  of  way,  was  a 
full  delivery,  and  passed  title  thereto  to  the 
company.    Hobart  v.  Beers,  26  Kan.  329. 

Individuals  ordered  certain  nursery  stock 
to  be  shipped  by  rail,  and  to  be  paid  for  by 
their  notes  at  six  and  twelve  months  upon 
receipt  of  the  stock.  Held,  that  the  title  to 
the  stock  passed  only  upon  its  arrival  at 
the  place  of  destination,  and  the  execution 
of  the  notes  by  the  consignees.  Therefore, 
the  shipper  might  maintain  an  action 
against  the  carrier  for  a  delay  in  transporta- 
tion. Congar  v.  Galena  &*  C.  U.  R.  Co.,  17 
Wis.  477. 

5.  to  carrier.  —  Plaintiff  bought 

hay  and  directed  it  to  be  shipped  to  him  by 
rail.  It  was  delivered  to  defendant  com- 
pany mtirked  to  plaintiff,  and  defendant  was 
directed  to  carry  it  to  plaintiff,  but  after- 
wards was  directed  to  deliver  it  to  another 
person.  Held,  that  the  title  of  the  hay 
passed  when  it  was  delivered  to  the  com- 
pany, and,  therefore,  it  was  liable  to  plain- 
tiff for  the  wronj,  delivery.  Odellv.  Boston 
&*  M.  R.  Co.,  109  Mass.  50. 

Delivery  of  personal  property  to  a  com- 
mon carrier  for  transportation  to  the  vendee, 
whether  in  accordance  with  his  expressed 
or  implied  instructions,  is  a  delivery  to  the 
vendee's  agent,  and  equivalent  to  a  delivery 
to  the  vendee  himself.  Colcord  v.  Dry/us, 
I  Okla.  228,  32  Pac.  Rep.  329. 

0.  measurement,   separation, 

etc.— Plaintiff  placed  upon  the  line  of  de- 
fendant's road  a  quantity  of  firewood,  which, 
by  contract,  defendant  was  to  measure,  re- 
ceive, and  pay  for  at  a  certain  price  per 
cord.  Defendant  was  notified  of  the  plac- 
ing of  the  wood,  but  a  portion  thereof  was 
not  measured,  received,  or  paid  for  as  agreed 
upon,  which  was  insured  by  plaintiff  as  his 


pwn  after  it  should  have  been  accepted,  and 
was  destroyed  by  fire  without  plaintiff's 
fault.  Held,  that  an  action  thereon  was 
not  an  action  for  the  contract  price  of  the 
wood,  but  an  action  for  not  accepting  the 
wood  according  to  contract ;  and  the  meas- 
ure of  damages  was  the  difference  between 
the  contract  price  and  the  market  price  at 
the  time  and  place  at  which  the  wood 
ought  to  have  been  accepted.  Pittsburgh, 
C.  &^  St.  L.  R.  Co.  V.  I^eck,  50  Ind.  303.— Re- 
viewing McConihe  v.  New  York  &  E.  R. 
Co.,  20  N,  Y.  495. 

When  goods  are  sold  by  number,  weight, 
or  measure,  the  sale  is  incomplete  and  the 
risk  continues  with  the  seller  until  the 
specific  property  is  separated  from  the  en- 
tire lot  or  quantity,  and  identified.  Hutch- 
inson V.  Grand  Trunk  R.   Co.,  59  N.  H.  487. 

7  •  inspection. — A  stipulation  in  a 

contract  with  a  company  for  the  manufac- 
ture and  delivery  of  ties,  that  differences 
and  disputes  as  to  the  sufficiency  of  the  per- 
formance of  the  work,  and  the  price  to  be 
paid  therefor,  should  be  referred  to  the  en- 
gineer— held,  to  be  a  valid  and  bindingf  stipu- 
lation between  the  parties,  and  that  one  of 
the  parties  could  not  arbitrarily  ignore  or 
revoke  the  stipulation  and  resort  in  the  first 
instance  to  the  courts  of  law.  Denver  &* 
V.  O.  Constr.  Co.  v.  Stout,  8  Colo.  61,  5  Pac. 
Rep.  627. 

Where  a  written  contract  for  the  sale  and 
delivery  of  ties  provides  that  the  same  shall 
be  inspected  before  payment,  and  that  they 
shall  be  loaded  on  the  company's  cars  at  a 
certain  place,  but  is  silent  as  to  where  the 
inspection  shall  be  made,  it  may  be  shown 
that  it  was  the  understanding  of  the  parties 
that  the  ties  were  to  be  shipped,  and  in- 
spected when  unloaded,  and,  when  this 
is  shown,  a  neglect  to  inspect  a  portion 
when  delivered  furnishes  no  excuse  for 
delay  in  making  a  delivery  before  the  in- 
spection was  had.  Havana,  R.  &*  E.  R. 
Co.  v.  Walsh,  8s  ///.  58. 

A  contract  provided  that  plaintiffs  should 
receive  certain  specified  sums  for  ties  and 
timber  delivered  along  the  line  of  the  road, 
subject  to  the  inspection  and  acceptance  of 
the  chief  engineer  of  the  company.  Held, 
that  such  proviso  was  for  the  benefit  of  the 
company,  and  might  be  waived  by  it,  and  if 
any  other  officer  than  the  chief  engineer,  by 
direction  of  the  company,  inspected  and 
accepted  the  ties  and  timber,  the  delivery 
was  complete,  and  the  title  passed  to  the 


SALES,  8. 


101 


company ;  and  this  though  plaintiffs  never 
consented  to  an  inspection  by  such  officer. 
Hobart  v.  Beers,  26  Kan.  329. 

Under  a  contract  by  a  railroad  company 
to  purchase  coal  of  plaintiff,  certain  quan- 
tities of  which  are  to  be  delivered  each  day, 
of  sucli  quality  as  shall  be  "  satisfactory  "  to 
the  company's  masters  of  transportation  and 
machinery,  although  the  coal  tendered  is 
rejected  by  the  masters,  yet  if  the  rejection 
is  not  made  in  good  faith,  it  does  not  justify 
the  company  in  refusing  to  receive  the  coai. 
Baltimore  &*  0.  R.  Co.  v.  Brydon,  25  Am. 
&'  Eng.  R.  Cas.  287,  65  Md.  198,  7  Cent.  Rep. 
396,  3  Atl.  Rep.  306.  9  Atl.  Rep.  126. 

Under  the  above  contract  plaintiff  had  the 
right  to  tender  coal  every  day  during  the 
time  covered  by  the  contract,  provided  it 
was  of  a  quality  satisfactory  to  the  masters ; 
and  the  masters  could  not  deprive  him  of 
the  right  by  condemning  his  coal  once  for 
ail.  If,  however,  they  assumed  to  do  so, 
their  action  relieved  him  from  the  necessity 
of  making  tender  thereafter,  but  would  not 
impair  any  of  his  rights  under  the  contract. 
Baltimore  &*  O.  R.  Co.  v.  Brydon,  25  Am.  &* 
Eng.  R.  Cas.  287,  65  Md.  198,  7  Cent.  Rep. 
396,  3  Atl.  Rep.  306,  9  Atl.  Rep.  1 26. 

Under  a  contract  providing  that  ties 
should  conform  to  certain  specifications  and 
should  be  subject  to  inspection  by  any  in- 
spectors whom  the  defendant  company 
might  send,  the  latte-  is  not  bound  to  accept 
or  pay  for  any  ties  rejected  by  its  inspector. 
Chapman  v.  Kansas  City,  C.  &*  S.  R.  Co,, 
114  Mo.  542,  21  S.  W.  Rep.  858. 

Plaintiff  received  over  defendant's  road 
six  car-loads  of  lumber  amounting  to  about 
75,000  feet.  After  it  was  unloaded  from 
the  cars  on  a  lumber  yard  plaintiff  negotiated 
with  lumber  dealers  a  sale  of  100,000  feet  of 
lumber,  includinr  the  six  car-loads,  the  re- 
mainder to  be  furnished  later,  to  be  mspected 
by  a  person  agreed  on,  the  price  of  ..he 
different  grades  being  fixed.  Held,  that  the 
inspection  fixed  title  in  the  buyer  immedi- 
ately ;  and  was  not  affected  by  the  fact  that 
the  whole  100,000  feet  of  lumber  wai,  not 
inspected  at  the  same  time.  P.ecords  v. 
Philadelphia,  IV.&»B.R.  Co..  gPhila.  (Pa.) 
55.— Distinguishing  Nicholson  v.  Taylor, 
31  Pa.  St.  128. 

If  a  company  uses  cross-ties  furnished 
under  contract,  to  be  paid  for  only  after  in- 
spection, it  must  be  assumed  that  the  ties  so 
used  were  such  as  the  contract  specified,  in 
the  absence  of  evidence  by  the  company 


tending  to  show  that,  though  used,  they 
were  defective.  Draffin  v.  Charleston,  C.  &* 
C.  R.  Co.,  34  So.  Car.  464,  13  S.  £.  Rep. 
427. 

8.  When  the  title  passes,  generally. 
—A  written  order  by  the  seller  to  the  pur- 
chaser, directing  a  warehouseman,  with 
whom  cotton  is  stored,  to  deliver  it  to  a 
railroad  company,  for  inspection  and  exam- 
ination by  the  purchaser,  on  his  paying  the 
storage,  does  not  pass  the  title  to  him  nor 
change  the  character  of  the  original  con- 
tract between  the  parties,  but  the  company 
becomes  the  bailee  of  the  seller,  as  between 
him  and  the  purchaser.  LetgA  v.  MobiU 
«S-  O.  R.  Co.,  58  Ala.  165, 

Where,  in  the  absence  of  a  special  con- 
tract, it  is  the  custom  to  deliver  ties  on  the 
line  of  a  railroad  for  inspection  and  accept- 
ance, such  delivery  amounts  to  a  proposal 
to  sell,  and  a  subsequent  appropriation  by 
the  railroad  completes  the  contract  of  sale 
and  operates  to  pass  title.  Kinney  v.  South 
&•  N.  Ala.  R.  Co.,  82  Ala.  368,  3  So.  Rep, 

113- 

Plaintiff  agreed  to  manufacture  a  cable  for 
operating  street-cars,  and  to  deliver  it  to 
the  company  for  trial,  to  be  paid  for  at  an 
agreed  price  if  acceptable,  and  if  not  to  be 
returned.  After  a  test  the  company  refused 
to  accept  it  and  returned  it  to  plaintiff,  who 
received  it,  and  brought  suit  for  goods  sold 
and  delivered.  Held,  that,  the  contract 
being  executory,  the  action  would  not  lie, 
where  it  was  found  that  the  cable  was  unfit 
for  the  purpose  intended  ;  and  an  acceptance 
of  it  by  plaintiff  was  a  rescission  of  the 
contract.  Hallidie  v.  Sutter  St.  R.  Co.,  63 
Cal.  575. 

By  the  terms  of  an  agreement  for  the  sale 
and  delivery  of  ties,  they  were  to  be  esti- 
mated before  payment.  Held,  that  the  sale 
was  not  complete  until  estimation,  and  the 
ties  unestimated  continued  the  property  of 
the  vendor.  Toledo,  W.  &*  W.  Jt.  Co.  V. 
Chew,  67  ///.  378. 

Where  a  company  is  bound  by  contract  to 
receive  from  plaintiff  all  ties  required  for  the 
construction  of  a  certain  portion  of  its  road 
which  should  be  accepted  by  its  engineer, 
and  certain  ties  included  in  the  engineer's 
estimates  are  not  used  and  certain  ones  not 
included  are  used  instead,  and  by  agree- 
ment of  the  parties  those  not  used  are  ex- 
cepted from  settlement,  they  still  remain 
the  property  of  plaintiff.  Smyth  v.  Ward, 
46  Io7ua  339. 


l!  < 


tm 


102 


SALES,  9,  10. 


Individuals  owning  ties  along  a  railroad 
made  a  contract  with  the  company  by  which 
tlie  latter  was  authorized  to  take  as  many 
ties  as  it  needed  for  the  repair  of  its  track. 
It  was  stipulated  that  the  ties  were  to  be 
counted  and  paid  for  after  they  were  placed 
under  the  track,  a>:i  that  the  title  should 
not  pass  until  after  they  were  under  the 
rails.  Heid,  that  such  stipulation,  as  to  the 
time  of  passing  the  title,  was  valid,  and  that 
no  creditor  of  the  company,  having  notice 
of  stich  contract,  could,  prior  to  such  time, 
acquire  title  thereto  by  a  levy  and  sale  on 
execution  against  the  company,  although  its 
employes  had  taken  possession  of  the  ties 
and  moved  them  to  different  places  along 
the  road.    Owens  v.  Hastings,  i8  Kan,  446. 

Defendants  bought  certain  cars,  paid  a 
builder  for  them,  and  received  them  into 
their  possession  ;  but  the  builder  afterwards 
induced  plaintiffs  to  buy  and  pay  for  the 
same  cars,  by  falsely  representing  that  he 
had  delivered  them  to  plaintiffs'  agent. 
Held,  that  plaintiffs  could  not  recover  them 
from  defendants,  the  first  purchaser.  Ohio 
&*  M.  R.  Co.  V.  Kasson,  37  N.  Y.  218. 

A  railroad  corporation  entered  into  a  con- 
tract with  M.  by  whic.i  the  latter  agreed  to 
deliver  10  the  former,  at  certain  specified 
points  on  the  company's  lands,  20,000  ties, 
at  fifty-five  cents  each  for  first-class  ties,  and 
thirty-five  cents  "  for  what  shall  be  adjudged 
second-class  ties,"  to  be  inspected  and 
counted  by  a  person  named.  The  company 
agreed  to  advance  fifteen  cents  apiece  for 
ties  as  they  were  delivered,  "  the  remainder 
to  be  paid  on  or  about  me  time  the  ties  are 
taken  and  used."  M.  delivered  a  quantity 
of  ties,  which  were  counted,  and  the  com- 
pany paid  the  advance  agreed  upon.  The 
ties  were  never  inspected  or  divided  into 
classes..  The  company  became  insolvent, 
and  its  property  and  franchises  were  sold  on 
foreclosure.  Held,  that  the  title  did  not 
pass  to  the  company  by  the  delivery ;  that  it 
was  not  bound  to  take  all  the  ties,  but  only 
such  as  should  be  adjudged  first  and  second 
class,  the  inspector  having  power  to  reject 
unmerchantable  ties,  and  so  it  could  not  be 
known  until  inspection  and  separation  were 
made  how  many  of  the  ties  were  to  be  taken, 
Cornell  v.  Clark,  104  N.  Y.  451,  10  N.  E. 
Rep.  888.  5  N.  Y.  S.  R.  772. 

A  Cf-ntractor  agreed  to  deliver  a  large 
quantity  of  ties  to  a  railroad  company,  along 
its  right  of  way,  to  be  inspected  monthly, 
and  to  be  paid  for  the  following  month.    A 


portion  of  the  contract  was  sublet  a  second 
time,  and  a  subcontractor  delivered  a  por- 
tion of  the  ties  on  the  right  of  way.  Held, 
that  the  title  passed  to  the  company  when 
the  ties  were  delivered  and  inspected, 
though  the  subcontractor  had  no  knowl- 
edge of  such  inspection  and  acceptance,  and 
might  not  have  received  pay  for  the  ties. 
Seattle  <&*  M.  R.  Co.  v.  Claussen- Sweeney 
Brew.  Co.,  5  Wash.  462,  32  Pac,  Rep.  102. 

9.  Conditional  sales.  * — It  was  agreed 
between  a  railroad  company  and  plaintiffs, 
that  plaintiffs  should  deliver  to  the  company 
a  certain  quantity  of  iron  rails ;  that  it  should 
lay  them  in  a  designated  part  of  the  track, 
and  that,  upon  payment  of  a  specified  price, 
the  rails  should  become  the  property  of  the 
company;  but,  until  such  payment,  they 
should  remain  the  property  of  plaintiffs. 
Held,  that  rails  laid  in  the  track  did  not  be> 
come  the  property  of  the  company  until 
they  were  paid  for,  and  that  plaintiffs  might 
hold  rails  not  paid  tor  against  subsequent 
mortgagees  of  the  road,  who  had  notice  of 
plaintiffs'  interest.  Haven  v.  Emery,  33  A''. 
H.  66.— Followed  in  Hunt  v.  Bay  State 
Iron  Co.,  97  Mass.  279. 

The  sale  of  railroad  fare  boxes  to  be  paid 
for,  or  returned,  within  a  year,  and  subject 
to  certain  requirements  as  to  their  use,  is  a 
conditional  sale,  and  the  company  has  no 
right  to  a  year's  use  before  the  sale  becomes 
absolute  merely  by  a  failure  to  return. 
Slawson  v.  Albany  R.  Co.,  3  T.  &*  C.  (N.  Y.) 
768,  1  Hun  438;  affirmed  in  60  N,  Y.  606, 
mem, 

10.  Warranties.— -A  statementas  of 
fact  by  the  vendor  of  an  article,  on  which 
the  purchaser  has  a  right  to  rely,  and  on 
which  he  does  rely,  purchasing  on  the  faith 
of  it,  constitutes,  if  false,  a  good  defense  to 
an  action  for  the  purchase  money,  though 
not  known  by  the  seller  to  be  false ;  and 
this,  not  on  the  ground  of  fraud,  but  of 
failure  of  consideration  ;  but  this  principle 
does  not  apply  to  a  statement  which  is 
merely  the  expression  of  an  opinion.  Mont- 
gomery Southern  R.  Co.  v.  Matthews,  24  Am. 
&*  Eng.  R.  Cas,  9,  77  Ala.  357,  54  Am.  Rep. 
60. 

Plaintiffs  contracted  to  construct  certain 
cars  for  defendant,  of  a  specified  pattern 
and  quality,  within  a  fixed  time,  warranting 
them  to  be  of  the  kind  and  quality  agreed 

•Conditional  sale  or  lease  of  rolling  stock,  see 
note,  57  Am.  &  Eno.  R.  Cas.  239. 


SALES,  11,  12. 


103 


upon.  The  evidence  showed  that  certain 
defects  existed,  but  that  they  were  the  fault 
of  defendant,  and  that  the  time  for  com- 
pleting the  cars  had  been  extended.  Held: 
(i)  that,  though  the  contract  was  executory, 
the  vendee  might  rely  upon  the  breach  of 
warranty  without  offering  to  return  the  cars 
or  rescind  the  sale ;  (2)  that  the  warranty 
did  not  cover  such  defects  as  were  apparent 
to  defendant  when  he  received  the  cars. 
Gilbert  Car  Mfg.  Co.  v.  Mann,  3  N.  Y.  S.  R. 
301. 

11.  Rights  of  the  parties— Bona 
fide  purchasers.— A  railroad  company 
contracted  to  purchase  a  large  amount  of 
coal,  to  be  delivered  at  different  times,  to  be 
of  such  a  quality  as  should  be  satisfactory 
to  certain  officers  of  the  company.  After 
a  portion  had  been  delivered  the  company 
refused  to  receive  any  more,  because  it  had 
been  condemned  as  unsatisfactory  by  such 
officers.  Held,  that  the  judgment  of  such 
officers  was  conclusive,  in  the  absence  of 
fraud.  Baltimore  &*  O.  R.  Co.  v.  Brydon, 
25  Am.  &•  Eng.  R.  Cas.  287,  6$  Md.  198,  7 
Cent.  Rep.  396,  3  Atl.  Rep.  306,  9  Atl.  Rep. 
126. 

In  such  case,  where  the  company  sought 
to  justify  its  refusal  to  accept  other  coal  by 
showing  that  it  contained  red  or  rusty  coal, 
it  was  competent  for  the  plaintiff  to  show 
that  the  rust  did  not  affect  its  value,  and 
that  the  company  subsequently,  in  purchas- 
ing coal,  did  not  reject  coal  similarly  af- 
fected. Baltimore  &*  O.  R.  Co.  v.  Brydon, 
25  Am.  <S-  Eng.  R.  Cas.  287,  65  Aid.  198.  7 
Cent.  Rep.  396,  3  Atl.  Rep.  306,  9  Atl.  Rep. 
126. 

After  taking  a  contract  to  construct  a  rail- 
road, to  be  paid  for  in  the  stock  of  the  com- 
pany, the  contractor  arranged  with  an  im- 
porter to  furnish  the  rails  on  a  credit  and  to 
hold  the  stock  as  collateral,  the  rails  to  be 
delivered  directly  to  the  company,  and  the 
stock  to  be  forwarded  directly  to  the  im- 
porter. The  importer  put  a  cargo  of  rails 
in  a  bonded  warehouse,  and  took  the  re- 
ceipt in  his  own  name,  and  forwarded  to  the 
contractor  a  bill,  which  he  transferred  to 
the  company.  The  corporation  and  the  con- 
tractor became  insolvent,  and  the  importer 
refused  to  transfer  the  warehouse  receipt 
until  the  rails  were  paid  for,  whereupon  the 
company  filed  a  bill  to  compel  a  delivery  of 
the  rails.  Held,  that  the  co-ipany  had  such 
an  interest  in  the  contract  as  equity  would 
enforce  ;  but  th.u  the  importer  had  a  lien  on 


the  rails  for  the  price,  which  must  be  paid 
before  the  company  was  entitled  to  posses- 
sion. IVare  River  R.  Co.  v.  Vibbard,  114 
Mass.  447. 

The  failure  of  the  vendee  of  property  to 
remove  it  from  the  land  of  tt.e  vendor  with- 
in the  time  stipulated  in  the  contract  of  sale, 
does  not,  necessarily  and  as  matter  of  law, 
defeat  the  vendee's  title  to  the  property. 
Stackpole  V.  Eastern  R.  Co.,  62  N.  H.  493. 

If  the  vendee  is  not  hindered  by  the 
vendor  in  the  removal  of  the  property  with- 
in the  stipulated  time,  and  is  prevented  from 
subsequently  removing  it  by  acts  of  the 
vendor  reasonably  necessary  for  the  protec- 
tion and  beneficial  enjoyment  of  his  land,  it 
is  not  a  conversion  of  the  vendor's  property 
by  the  vendee  for  which  an  action  of  trover 
can  be  maintained.  Stackpole  v.  Easttrn  R. 
Co.,  62  N.  H.493. 

Property  purchased  from  a  private  cor- 
poration, in  good  faith  and  for  an  adequate 
consideration,  is  not  subject  to  a  trust  for 
the  satisfaction  of  unpaid  debts  m  the  hands 
of  a  purchaser  at  the  time  of  the  purchase. 
And  the  rule  is  the  same  whether  the  pur- 
chase includes  all  the  property  of  the  corpo- 
ration or  only  a  part  of  it.  Branson  v.  Ore- 
gonian  R.  Co.,  16  Am,  &»  Eng.  R,  Cas.  517, 
II  Or  eg.  161,  2  Pac.  Rep.  86. 

12.  Seller's  action  for  the  price.— 
In  an  action  against  a  company  to  recover 
the  price  of  ties,  it  was  pleaded  that  a  por- 
tion of  the  ties  were  cut  and  removed  from 
land  belonging  to  defendant,  and  after  re- 
ceiving the  same  it  became  aware,  for  the 
first  time,  that  the  ties  were  taken  from  its 
ov;n  land.  Held,  that  the  plea  contained 
no  matter  of  recoupment,  as  it  did  not  aver 
possession  of  the  ties  in  the  vendor  at  the 
time  of  the  sale,  so  that  a  warranty  of  title 
could  be  implied  therefrom,  nor  did  it  aver 
any  affirmation  of  title.  In  the  absence  of 
both  of  these  elements,  the  purchaser  buys 
at  his  own  peril.  Illinois  C.  R.  Co.  v.  Lei- 
dig,  64  III.  151. 

Plaintiff  sued  to  recover  a  balance  on 
ties  delivered,  and  the  company  set  up  a 
claim  for  damages  for  a  failure  of  plaintifl 
to  deliver  the  full  amount  contracted  for. 
Held,  that  the  fact  that  the  number  of  ties 
which  plaintiff  failed  to  deliver  could  not 
have  been  purchased  for  immediate  de- 
livery according  to  the  contract  would  not 
of  itself  establish  that  there  was  no  mar- 
ket value  for  such  ties  at  that  time  and 
place.    Jetnmison  v.  Gray,  29  Iowa  537. 


PI 
■'3 1 

■Hi 

y 


m 


Hi 


104 


SALES,  13. 


After  the  delivery  of  iron  rails,  defendant 
company  leased  its  road  to  another  com- 
pany which  assumed  the  debts  of  defendant. 
Defendant  offered  to  show  entries  in  the 
accounts  between  said  lessee  and  another 
company,  of  whom  C,  who  delivered  the 
material  to  defendant,  testified  that  he 
bought  it.  In  these  entries  the  iron  in 
question  was  charged  by  the  latter  company 
to  the  former ;  rhis  was  objected  to  and  ex- 
cluded. Held,  no  error;  that  plaintiff's 
title,  or  right  to  recover,  could  not  be  af- 
fected by  transactions  subsequent  to  the 
delivery  between  third  persons ;  and  that 
the  evidence  was  not  competent  as  bearing 
upon  the  understanding  of  defendant's  di- 
rectors. Scott  v.  Middlitown,  U.  &*  IV.  G. 
R.  Co.,  4  Am.  &^  Eng.  R.  Cas.  1 14,  86  A^.  Y. 
200;  affirming  21  Hun  231. 

Where  plaintiff  sues  to  recoverthe  agreed 
price  of  ties  delivered,  and  there  is  no  dis- 
pute as  to  their  value,  and  it  is  admitted 
that  defendant  received  and  accepted  the 
ties,  but  no  agreed  price  is  established,  a 
verdict 'for  the  value  of  the  ties  is  warranted. 
Terwilliger  v.  Ontario,  C.  &'  S.  R.  Co.,  55  A'. 
Y.  S.  R.  919,  73  Hun  3.5,  26  A^.  Y.  Supp.  268. 

In  such  case  the  company  set  up  a  de- 
fense that  it  had  paid  a  third  person  for  the 
ties,  who  had  a  right  to  receive  the  money 
under  a  verbal  agreement  with  plaintiff. 
Htld,  that  such  agreement,  if  made,  was  im- 
material, as  it  was  within  the  statute  of 
frauds.  Terwilliger  v.  Ontario,  C.  &*  S.  R. 
Co..  55  A^.  Y.  S.  R.  919.  73  Hun  335,  26  A^. 
Y.  Supp.  268. 

A  petition  alleging  the  delivery  of  ties  at 
a  railroad,  and  that  defendants,  who  were 
contractors  for  building  the  road,  received 
said  ties  and  converted  them  to  their  own 
use  in  the  construction  of  the  road,  suffi- 
ciently sets  forth  a  contract  binding  upon 
defendants.    Afiller  v.  DuJ".  34  Mo.  167. 

Where,  in  an  action  to  recover  the  value 
of  cross-ties  appropriated  by  a  company, 
plaintiff  is  unable  to  prove  the  exact  num- 
ber taken  by  defendant,  and  defendant  fails 
to  show  the  number,  though  able  to  do  so, 
the  jury  should  not  be  instructed  to  find 
for  defendant  because  of  plaintiff's  failure 
to  make  such  proof,  if  his  evidence  furnish 
data  upon  which  tlie  jury  by  an  estimate 
can  approximate  the  number.  Natchez,  J. 
&•  C.  R.  Co.  v.  Rolls,  62  Miss.  50. 

As  to  cross-ties  which  were  first  rejected 
but  afterwards  taken  and  appropriated  by 
the  company,  the  court  may  permit  plain- 


tiff to  prove  the  price  paid  him  by  a  third 
party  for  cross-ties  which  were  accepted  by 
defendant  under  a  contract  with  such  party; 
as  a  circumstance  for  the  jury  to  consider 
in  arriving  at  the  value  of  the  cross-ties 
which  are  the  subject  of  the  suit.  Natchtz, 
J.  (S»  C.  R.  Co.  v.  Bolls,  62  Miss.  50. 

When,  in  pursuance  of  an  order  for  goods, 
directed  by  the  purchaser  to  be  shipped  to 
him  C.  O.  D.,  the  vendor  has  delivered  them 
to  a  common  carrier,  with  instructions  to 
collect  their  price  from  the  consignee  before 
delivering  them  to  him,  the  transaction  as 
a  sale  is  complete,  so  far  as  the  vendor  is 
concerned.  Com.  v.  Fleming,  130  Pa.  St. 
138,  \Z  Atl.  Rep.  622. 

In  such  case,  while  the  title  to  the  goods 
does  not  pass  to  the  purchaser  if  they  be  not 
delivered  to  him  by  the  carrier,  that  circum- 
stance does  not  affect  the  character  of  the 
transaction  as  a  completed  contract  of  sale ; 
the  seller's  right  to  recover  the  price,  if  the 
purchaser  refuse  to  take  the  goods,  is  as 
complete  as  if  he  had  taken  them  without 
payment.  Com.  v.  Fleming,  130  Pa.  St.  138, 
\%  Atl.  Rep.(>^2. 

In  an  action  for  the  purchase  price  of 
coal,  evidence  that  a  portion  of  the  coal 
had  been  improperly  condemned  by  inspect- 
ors whose  conclusion,  by  stipulation  of  the 
contract,  was  to  be  final,  is  inadmissible  in 
the  absence  of  fraud  and  collusion  between 
the  inspectors  and  the  purchasers.  Lucas 
Coal  Co.  V.  Delaware  iS«»  H.  Canal  Co.,  148 
Pa.  St.  227,  23  Atl.  Rep.  990. 

In  an  action  to  recover  damages  for  breach 
of  a  contract  to  pay  for  a  certain  amount  of 
lumber,  to  be  delivered  by  plaintiff  to  de- 
fendant at  a  certain  place,  the  true  and 
only  measure  of  damages  is  the  difference 
between  the  contract  and  the  market  price 
of  the  lumber  which  plaintiff  tendered  to 
defendant  and  which  the  latter  refused  to 
;iccept.  Stack  v.  Charlotte,  C.  &>  A.  R.  Co., 
10  So.  Car.  91. 

13.  Seller's  action  for  fraud  in  in- 
ducing the  sale.  —  The  president  of  a 
railroad  company,  who  was  also  one  of  its 
directors,  having  knowledge,  by  reason  of 
his  official  position,  that  the  true  value  of 
the  stock  of  the  company  was  very  largely 
in  excess  of  its  nominal  market  value,  pur- 
chased, at  much  less  than  its  real  worth,  the 
stock  of  a  non-official  stockholder  who  was 
Ignorant  of  the  company's  financial  condi- 
tion and  of  facts  giving  an  extraordinary 
value  to  the   stock,  without  disclosing  to 


SALES,  14-16.— SALES   OF  RAILROADS,  1. 


105 


the  seller  the  facts  and  circumstances  with- 
in his  itnowledge  as  to  its  real  value.  Held, 
that  the  relation  of  trustee  and  cestui  que 
trust  did  not  exist  between  the  parties,  and 
that  in  the  absence  of  actual  fraud  the  pur- 
chase was  valid.  The  purchaser  was  not 
bound  to  communicate  to  the  seller  his 
knowledge  of  the  worth  of  the  stock,  al- 
though the  same  was  obtained  by  reason  of 
his  official  relation  to  the  company,  nor  was 
he  required,  in  order  to  make  a  valid  pur- 
chase, to  pay  a  fair  and  adequate  price  for 
the  stock.  (Downey,  C.  J.,  dissenting.) 
Tippecanoe  County  Com'rs  v.  Reynolds,  44 
Ind.  509. 

14.  Buyer's  remedy  for  breach  of 
warranty. — Where  there  is  a  breach  of 
warranty  as  to  the  quality  of  an  article  pur- 
chased, the  purchaser  may  refuse  to  receive 
it,  and  treat  the  contract  as  rescinded  ;  but 
where  it  has  been  shipped  to  him  by  rail, 
and  he  has  paid  the  freight  thereon,  he 
cannot  recover  back  the  amount  from  the 
carrier,  but  he  might  from  the  seller. 
Jack  V.  Des  Moines  &*  Ft.  D.  R.  Co.,  53 
loiva  399,  5  A'.  W.  Rep.  537. 

15. for  breach  of  contract  to 

deliver— Sunday.  —  Where  a  contract 
with  a  railway  company  for  a  supply  of  rails 
shows  that  the  parties  intended  the  final 
expression  of  the  company's  engineer's  sat- 
isfaction with  the  rails  as  delivered  to  be 
conclusive,  the  company,after  the  rails  have 
been  accepted  and  delivered  and  partially 
laid  down,  cannot  maintain  an  action  for 
breach  of  contract  on  the  ground  that  the 
rails  are  defective.  Dunaberg  &*  W.  R.  Co. 
V.  Hopkins,  2,f}  L.  T.  733. 

Defendants  a}j;reed  to  ship  to  plaintiffs 
"  all  the  balance  of  the  iron  for  said  railroad, 
now  lying  in  Boston  or  New  York,"  and 
which  was  described  as  amounting  to 
"  about  "  fifteen  tons,  and  which  was  origi- 
nally purchased  from  a  certain  named  firm. 
Held,  that  this  was  merely  descriptive  of  the 
iron,  and  did  not  constitute  a  warranty  that 
the  particular  iron  existed  ;  and  if  the  iron 
was  not  in  the  places  mentioned,  a  failure  to 
ship  it  would  not  constitute  a  breach  of  con- 
tract on  the  part  of  defendants.  Robinson 
V.  Flint,  58  Barb.  (N.  Y.)  100. 

In  such  case  defendants  were  not  liable  in 
an  action  for  deceit,  in  the  absence  of  proof 
that  they  knew  that  the  language  used  in 
the  contract  was  false.  Robinson  v.  Flint, 
58  Barb.  (N.  Y.)  100. 

Evidence  of  the  market  price  of  a  com- 


modity on  Sunday  in  a  state  where  business 
transactions  on  that  day  are  forbidden  will 
not  be  heard  in  support  of  an  action  to  re- 
cover damages  for  a  breach  of  contract  to 
deliver  the  goods  on  that  day.  Waters  v. 
Richmond  &•  D,  R.  Co.,  108  N.  Car.  349,  12 
S.  E.  Rep.  950. 

Evidence  of  the  market  value  of  coal  is 
inadmissible  in  an  action  on  a  contract  to 
sell  at  the  price  paid  by  a  certain  railroad 
company,  the  best  evidence  being  the  books 
of  the  company.  Lucas  Coal  Co.  v.  Dela- 
ware &>•  H.  Canal  Co.,  148  Pa.  St.  227,  23 
Atl.  Rep.  990. 

10. to  recover  back  purchase 

money. — A  sale  of  stock  by  the  commis- 
sioner of  contracts  of  a  railroad  company, 
with  a  secret  agreement  that  plaintiff  may 
receive  land  of  the  company  at  a  future  day, 
and  pay  in  stock  certificates,  entitles  him  to 
recover  back  the  money  advanced,  with  in- 
terest, if  the  company  refuses  to  execute  the 
agreement.  Such  a  contract  is  entire,  and 
if  the  company  would  retain  the  money,  it 
must  convey  the  land  according  to  agree- 
ment. Weeden  v.  Lake  Erie  &'  M.  R.  R. 
Co.,  14  Ohio  563. 

Such  commissioner  has  not  the  authority 
to  n^ake  such  a  contract ;  but  if  he  and 
plainiiiT  acted  under  a  mutual  mistake  as  to 
his  power,  the  law  raises  an  implied  promise 
on  the  part  of  the  company  to  pay  back  the 
money,  with  interest.  On  refusing  to  con- 
vey the  land,  the  money  may  be  recovered 
back,  also,  on  the  ground  of  failure  of  con- 
sideration. Weeden  v.  Lake  Erie  &*  M.  R. 
R.  Co.,  14  Ohio  563. 


SALES  OF  RAILROADS. 

1.  When  the  power  to  sell  exists.— 

A  company,  having  power,  by  its  charter,  to 
construct  a  railroad,  and  also  power  to  pur- 
chase and  sell  all  kinds  of  property  of  every 
nature  and  quality,  and  to  incorporate  its 
stock  with  that  of  any  other  company,  con- 
tracted with  a  company  to  construct  a  part 
of  its  road,  and  to  sell  and  deliver  it  to  the 
latter  company  in  sections  as  completed,  to- 
gether with  the  franchise  of  using  the  same, 
and  to  incorporate  its  stock  created  for 
building  said  road  with  that  of  the  latter 
company.  Held,  that  this  contract  was  not 
ultra  vires.  Branch  v.  Jesiip.  9  Am.  &*  Eng. 
R.  Cas.  558,  106  C/.  S.  468,  I  Sup.  Ct.  Rep. 
495.  — Applied  in  Tod  v.  Kentucky  Union 
Land  Co.,  57  Fed.  Rep.  47.     APPROVED  IN 


t'l 


Mi! 


106 


SALES  OF   RAILROADS,  3-4. 


1 1  i| 


Camden  &  A.  R.  Co.  v.  Mays  Landing  &  E. 
H.  C.  R.  Co.,  48  N.  J.  L.  530.  Followed 
IN  Mackintosh  v.  Flint  &  P.  M.  R.  Co.,  36 
Am.  &  Eng.  R.  Cas.  340,  34  Fed.  Rep.  582. 
The  company  building  the  road  had  the 
same  general  power,  except  that  of  incor- 
porating its  stock  with  that  of  other  com- 
panies, and  had  the  right  under  its  charter 
also  to  construct  a  railrsad  over  the  same 
route.  //eM,  that  it  was  not  acting  ultra 
vires  to  make  the  purchase  of  said  road  and 
franchises  as  above  stated,  and  to  pay  for 
the  same  by  issuing  its  own  stock  therefor, 
which  was  delivered  to  and  accepted  by  the 
contractors  in  lieu  of  the  stock  of  the  other 
company,  which  latter  stock  they  had  sub- 
scribed for  and  agreed  to  take  in  payment 
fr)r  the  work  of  construction.  Branch  v. 
Jesup.  9  Am.  &»  Eng.  R.  Cas.  558, 106  U.  S. 
468,  I  Sup.  a.  Rep.  495. 

Where  tiie  ciiarter  of  one  railroad  com- 
pany authorizes  it  to  purchase  the  franchise 
and  property  of  another  company,  the  au- 
thority to  sell  is  implied  to  the  latter  com- 
pany. New  York  &*  N.  E.  R.  Co.  v.  New 
York.  N.  H.  &•  H.  R.  Co.,  25  Am.  <&-  Ef^. 
R.  Cas.  215,  S2Conn.  274. 

Technically  speaking,  franchises  are  prop- 
erty, but  of  a  peculiar  nature,  arising  only 
from  legislative  grant,  and  are  not  ordinarily 
subject  to  execution  or  to  sale  and  transfer, 
even  in  payment  of  the  debts  of  the  corpo- 
ration, without  the  assent  or  authority  of  the 
legislature.  Randolph  v.  Lamed,  27  N.  J. 
Eg.  557. 

But  New  Jersey  Act  of  May  13,  1866,  pro- 
vides that  where  the  property  of  an  insol- 
vent corporation  in  the  hands  of  a  receiver 
is  encumbered  with  mortgages  or  other  liens, 
the  legality  of  which  is  questioned,  a  court 
of  chancery  may  order  the  receiver  to  sell 
the  same  clear  of  encumbrances.  Held,  that 
it  was  not  the  intention  of  the  legislature  to 
confine  the  remedy  to  mischief  arising  from 
litigation  of  any  particular  character,  but  it 
extended  to  all  litigation  between  encum- 
brancers respecting  the  validity,  extent,  or 
priority  of  their  liens ;  and  the  chancellor 
may  order  a  sale  of  the  franchises  as  well  as 
the  property  of  the  company,  clear  of  encum- 
brances. Randolph  v.  Ijxrned,  27  A^.  /.  Eq. 
557- 

One  railroad  whose  charter  has  expired 
but  which  is  renewed  and  five  years  addi- 
tional allowed  in  which  to  complete  its  road, 
with  leave  to  sell  to  a  second  company,  can 
convey  a  good  title  as  against  the  lessee  of 


a  third  company  which  claimed  the  right  to 
the  lands  in  question  on  which  it  had  tres- 
passed and  partially  built  a  road.  Grand 
/unction  R.  Co.  v.  Midland  R.  Co.,  7  On/. 
A  pp.  681. 

2.  andwheunot.— The  authority 

given  a  company  to  construct  a  railway  and 
to  take  and  purchase  lands  does  not  impli- 
edly authorize  it  to  purchase  land  on  a  part 
of  which  another  railway  is  constructed,  nor 
does  it  authorize  such  other  company  to  sell 
any  part  of  its  actual  line.  Reg.  v.  Sou/A 
Wales  R.  Co.,  14  Q.  B.  902,  6  Railw.  Cas. 
489,  i4/«r.  828,  19  L.J.  Q.  B.  272. 

There  is  no  statutory  provision  in  Michi- 
gan authorizing  one  railway  company  o  ac- 
quire the  stock  and  franchise  of  ar  ither 
completed  company  with  the  intention  of 
itself  exercising  such  franchise.  Mackin- 
tosh V.  Flint  &•  P.  M.  R.  Co.,  36  Am.  &*  Eng. 
R.  Cas.  340,  34  Fed.  Rep.  582.— Following 
Pearce  v.  Madison  &  I.  R.  Co.,  21  How.  442  ; 
Thomas  v.  West  Jersey  R.  Co.,  loi  U.  S.  71 ; 
Branch  v.  Jesup,  106  U.  S.  478,  1  Sup  Ct. 
Rep.  495 ;  Pennsylvania  R.  Co.  v,  St.  Louis, 
A.  &  T.  H.  R.  Co.,  118  U.  S.  290,6  Sup.  Ct. 
Rep.  1094. 

A  contract  to  sell  and  transfer  the  rights, 
franchises,  and  property  of  a  railroad  com- 
pany, before  the  road  is  constructed,  is 
against  public  policy  and  cannot  be  en- 
forced by  legal  proceedings.  If  such  con- 
tract is  fully  executed,  the  court  will  not 
disturb  it,  but  leave  the  parties  to  abice 
the  consequences ;  if  it  is  not  execui.ed.  ■  ■■ 
court  will  not  lend  its  aid  to  carry  :c  :  -  * 
eflect.  Clarke  v.  Omaha  &•  S.  IV,  R.  .  /». 
5  Neb.  314. 

3.  Necessity  of  legislative  autIioi-!« 
ty> — The  charter  and  franchises  of  a  rail- 
way corporation  cannot  be  sold,  unless 
authorized  by  statute.    Bruffett  v.    Great 

Western  R.  Co.,  25  ///.  353. 

4.  Inability  to  complete  road  as 
ground  for  sale. — A  railroad  may  be  said 
to  be  "  uncompleted  "  within  the  meaning 
of  Michigan  statutes  authorizing  companies 
to  sell  their  roads  when  they  are  not  able  to 
complete  them,  when  it  has  neither  station 
houses,  side  tracks,  turntables,  nor  rolling 
stock  fit  for  use,  the  company  having  leased 
rolling  stock  about  as  long  as  it  could,  and 
where  it  is  unable  to  complete  the  construc- 
tion and  equip  the  road.  Young  v.  Toledo 
&»  S.  H.  R.  Co.,  40  Am.  6-  Eng.  R.  Cas. 
514,  76  Mich.  485,43  N.  W.  Rep.  632.— 
Followed  in  Farmers'  L.  &  T.  Co, 


v.. 


SALES  OF   RAILROADS,  6-7. 


107 


Toledo  A  S.  H.  R.  Co..  54  Fed.  Rep.  759, 
4  C.  C.  A.  561. 
5.  Assent  of  stockholders.  —  How. 

Mich.  St.  §  3403,  authorizinjj  one  railroad 
company  to  sell  its  franchises  and  property 
to  another,  when  authorized  by  a  vote  of 
two  thirds  of  the  stockholders,  applies  to  a 
corporation  organized  after  the  passage  of 
the  law,  and  such  a  sale  is  conclusive  as 
against  dissenting  stockholders,  even  where 
the  terms  of  the  sale  provide  that  the  stock- 
holders shall  be  paid  in  new  stock.  (Taft, 
J.,  dissenting.)  Farmers'  L.  S-  T.  Co.  v. 
Toletio&'S.H.K.  Co.,  54  Fed.  Rep.  759.  4 
C.  C.  A.  561.— Applying  Buffalo  &  N.  Y. 
City  R.  Co.  V.  Dudley,  14  N.  Y.  337 ;  Durfee 
V.  Old  Colony  &  F.  R.  R.  Co.,  5  Allen  (Mass.) 
240.  Following  Young  w.  Toledo  &  S.  H. 
R.  Co.,  76  Mich.  485,  43  N.  W.  Rep.  632. 

An  amendment  to  a  railroad  charter  au- 
thorizing the  company  to  purchase  another 
road,  and  declaring  that  the  purchased  road 
should  become  a  part  of  the  road  authorized 
to  be  constructed  by  the  charter,  contained 
a  proviso  that  nothing  in  this  act  contained 
should  in  any  wise  affect  any  right  whatever, 
either  at  law  or  in  equity,  of  any  stock- 
holder or  other  person  in,  or  any  claim  or 
demand  against,  the  company  whose  road 
it  was  contemplated  to  purchase.  Held, 
that  the  purchase  authorized  by  the  supple- 
ment did  affect  the  rights  of  the  stockhold- 
ers in  the  company  whose  road  was  to  be 
purchased ;  and  that  the  legislature  in- 
tended, when  it  provided  that  nothing  in 
that  act  contained  should  in  any  wise  affect 
any  right  whatever,  that  such  purchase 
should  not  occur  without  that  which  alone 
could  prevent  its  affecting  such  rights,  viz., 
the  consent  of  every  stockholder.  Kean  v. 
Johnson,  9  A^.  J.  Eg.  401. 

Where  the  company  whose  road  was  pur- 
chased under  the  above  supplement,  and 
which  was  not  a  necessary  party  to  any  of 
the  different  kinds  of  relief  prayed,  had  not 
been  made  a  party  to  a  bill  filed  by  one  who 
was  a  protesting  stockholder,  against  the 
directors  of  both  roads,  and  the  company  in 
possession  of  the  road,  and  all  its  property 
but  the  franchise,  and  the  objection  was 
not  taken  until  the  hearing  of  a  general 
demurrer  to  the  equity  of  the  bill,  the 
court  disposed  of  the  case  on  its  merits, 
without  requiring  such  formal  parties  to  be 
joined.    Kean  v.  Johnson,  9  N.J.  Eg.  401. 

Under  the  ordinary  powers  granted  to  a 
railroad  having  its  termini  in  Tennessee,  the 


directory  has  no  power  to  purchase  other 
railroads  without  the  sanction  of  the  stock- 
holders. Deaderick  v.  Wilson,  8  Baxt. 
( Tenn.)  108. 

O.  Coustriiction  of  statute.  —  By 
Miss.  Act  of  Dec.  26,  1856,  authorizing  the 
Southern  railroad  company  to  buy  out  and 
absorb  the  Vicksburg  &  Jackson  railroad 
company,  it  was  expressly  empowered  to 
issue  bonds  and  execute  mortgages  to  se- 
cure the  same  upon  its  property,  real  and 
personal,  and  upon  its  appurtenances  and 
franchise ;  which  bonds  might  be  used  in 
paying  the  indebtedness  growing  out  of 
the  purchase  of  the  Vicksburg  &  Jackson 
railroad,  or  in  the  construction  of  the  un- 
finished portion  of  said  road,  or  in  such 
other  way  as  the  company  might  desire. 
McAllister  v.  Plant,  54  Miss.  106,  17  Am. 
Ry.  Rep.  389, 

7.  of  executory  contracts  of. 

sale.— An  executory  contract  made  by  a  rail- 
way corporation  in  its  corporate  capacity 
for  the  sale  to  another  railway  company  of 
certain  franchises,  with  an  agreement  to  se- 
cure and  transfer  additional  rights  of  way 
over  designated  portions  of  the  route  of  a 
proposed  motor  line,  and  an  executed  con- 
tract of  sale  of  the  entire  stock  of  the 
former  corporation,  made  by  the  plaintiff 
and  his  associates  as  natural  persons  acting 
in  their  individual  capacity,  cannot  be  con- 
strued as  one  contract,  although  the  plain- 
tiff and  his  associates  were  the  stockholders, 
directors,  and  officers  of  the  corporation  at 
the  time  the  first  contract  was  made  ;  and 
the  plaintiff  was  under  no  obligation  to 
procure  or  furnish  the  rights  of  way  in 
question,  nor  to  answer  for  the  default  of 
the  corporation,  if  any  occurred  in  so  doing. 
Blagen  v.  Thompson,  56  Am.  &*  £fig-  R, 
Cas.  530,  23  Oreg.  239,  31  Pac.  Rep.  647,  18 
L.R.A.  315. 

A  stipulation  in  the  contract  by  which 
plaintiff  transferred  the  stock  of  his  corpo- 
ration required  the  purchasing  company  to 
complete  its  railway  within  a  specified  time, 
over  the  route  for  which  plaintiff's  corpora- 
tion had  agreed  to  secure  the  rights  of  way. 
Held,  that  the  failure  of  plaintiff's  com- 
pany to  secure  the  designated  rights  of  way 
was  no  defense  to  an  action  by  plaintiff  for 
a  breach  of  the  agreement  to  construct  the 
railway.  Blagen  v.  Thompson,  56  Am.  &* 
Eng.  R.  Cas.  530,  23  Oreg.  239,  31  Pac.  Rep. 
647,  \%  L.R.  A.  315. 

The  rule  for  the  measure  of  damages  in 


w 


!!?=» 


108 


SALES   OF   RAILROADS,  8-10. 


this  case,  for  breach  of  the  contract  sued 
on,  was  the  difference  in  value  of  the  land 
without  the  road  on  the  day  on  which  the 
])roposed  railway  would  have  been  com- 
pleted according  to  the  contract— not  less 
in  amount  than  the  price  plaintiff  agreed 
to  pay  for  it— and  what  its  value  would 
have  been  on  that  day  with  the  road  com- 
pleted and  in  operation.  Blagen  v,  Thomp- 
son, 56  Am.  &*  Etig.  K.  Cas.  530,  23  Oreg. 
239,  3r  Pac.  Rep.  647,  18  L.  R.  A.  315. 

8.  What  laud  and  eaNenieiit  will 
pasH.— The  siile  of  the  Iron  Mountain  nil- 
road  and  its  appurtenances,  under  Mo.  Act 
of  February  22,  1851,  and  acts  pursuant 
thereto,  embraced  railroad  land,  although 
outside  of  the  railroad  and  not  necessary  to 
its  use.  Whitehead  v.  Vineyard,  50  Mo.  30, 
3  Am.  Ry.  Rep.  7. 

Where  a  railroad,  with  its  appurtenances, 
is  pledged  to  the  state  in  security  for  a 
loan,  and,  the  pledge  being  forfeited,  is  sold 
by  the  state,  the  easement  passes  by  the  sale, 
and  is  vested  in  tiie  purchaser,  and  this  re- 
sult is  in  no  way  affected  by  the  fact  that 
the  purchase  is  made,  mediately  or  im- 
mediately, by  another  railroad  company,  if 
there  be  legislative  authority  to  make 
the  purchase,  and  if  the  original  object  and 
consideration  of  the  grant  of  the  easement 
be  not  thereby  changed  or  defeated.  Junc- 
tion R.  Co.  V.  RuggUs,  7  Ohio  St.  i.— Re- 
viewed IN  Piatt  V.  Pennsylvania  Co.,  43 
Ohio  St.  228. 

0.  Restraining  unaiitliorized  sale. 
—  Where  by  charter  a  company  is  em- 
powered to  sell  its  road, appurtenances,  and 
franchise,  to  any  other  incorporated  rail- 
road of  the  state,  and  the  board  of  directors 
authorizes  the  president  to  receive  propo- 
sals and  open  correspondence  with  such 
persons  as  he  may  deem  advisable,  and  in 
accordance  with  such  direction,  the  presi- 
dent offers  to  receive  qroposals  for  the 
road,  or  for  tlie  iron  alone,  or  for  the  real 
estate,  roadbed,  and  franchise,  the  court,  at 
the  instance  of  stockholders,  will  grant  an 
injunction  restraining  such  sale  in  this  man- 
ner, as  in  violation  of  its  charter.  Upson 
County  R.  Co.  v.  Sharman,  37  Ga.  644. 

10.  Validity  <»t"  particular  sales 

Where  a  minority  of  stockholders  combine, 
and,  on  an  ex  parte  order,  seize  a  valuable 
railroad  property,  and  under  the  laws  of  the 
state  (Lit.)  sell  it  for  a  nominal  sum,  them- 
selves bidding  it  in,  in  such  a  manner  as 
clearly  to  show  a  fraudulent  combination. 


equity  will  not  allow  them  to  profit  by  the 
transaction,  but  will  set  it  aside.  Jackson 
V.  Ludeling,  21  Wall.  {U.  S.)  616,  6  Am.  Ry. 
Rep.  457.— Distinguished  in  Kitchen  v. 
St.  Louis,  K.  C.  &  N.  R.  Co.,  69  Mo.  224. 

The  sale  of  the  Macon  &  Brunswicli  rail- 
road is  valid  and  binding  upon  the  state, 
and  equity  will  hold  the  title  good  in  the 
purchasers,  though  all  the  regulations  pre- 
scribed for  the  manner  of  conducting  it 
have  not  been  literally  complied  with,  if 
carried  into  execution  substantially  by  the 
executive,  the  purchase  money  having  been 
largely  paid  and  the  transaction  virtually 
ratified  by  subsequent  acquiescence  of  the 
legislative  department.  Under  such  cir- 
cumstances, the  case  must  be  strong  indeed 
to  authorize  judicial  interference.  Wood  v. 
Macon  dr-  B.  R.  Co.,  68  Ga.  539. 

Where  the  permission  to  a  foreign  cor- 
poration to  purchase  a  domestic  railroad, 
with  all  its  rights  and  franchises,  is  an  orig- 
inal and  direct  grant  by  the  legislature,  the 
purchaser,  as  soon  as  the  purchase  is  made, 
becomes  eo  instanti  the  offspring  of  the 
legislative  will  of  this  state ;  nor  does  it 
matter  that  tlie  purchaser  is  not  called  by 
name.  It  is  not  a  mere  license  to  carry 
out  a  power  already  potential,  nor  does  it 
take  the  place  of  the  vendee  company  by 
mere  implication,  but  by  direct  grant  of 
power.  Angier  v.  East  Tenn. ,  V.  &•  G.  R, 
Co.,  20  Am.  6-  Eng.  R.  Cas.  618,  74  Ga.  634. 

By  Maine  Special  Laws  ef  1857,  ch.  122, 
the  Portland  &  Oxford  Central  railroad 
company  was  autliorized  to  purchase  the 
franchise  and  all  the  property  of  the  Buck- 
field  Branch  railroad,  "  with  all  the  privi- 
leges, rights  of  way,  and  other  immunities 
whatsoever  pertaining  to  said  road. "  //eld, 
that  this  included  the  right  to  connect  with 
another  railroad,  wliich  was  a  right  secured 
to  the  road  sold.  Portland  &*  O.  C.  A'.  Co. 
v.  Grand  Trunk  A'.  Co.,  46  Me.  69. 

The  ordinance  of  the  Mo.  convention 
adopted  April  8,  1865,  does  not  suspend  the 
right  and  power  of  the  general  assembly  to 
provide  by  law  for  a  sale  of  the  railroads,  or 
either  of  them,  until  there  is  a  refusal  or 
neglect  to  pay  the  tax  required  to  be  im- 
posed by  the  ordinance.  Ansjoers  to  Ques- 
tions by  Governor,  37  Mo.  1 29. 

No  such  sale  can  be  made  without  reserv- 
ing a  lien  upon  the  property  and  franchises 
sold,  for  all  sums  remaining  unpaid  by  the 
purchaser.  Answers  to  Questions  by  Gov- 
ernor, 37  Mo.  129. 


SALES   OF   RAILROADS,  11. 


109 


When  a  railroad  shall  be  sold  under  the 
ordinance  of  April  8,  1865,  the  state  cannot 
receive,  in  payment,  shares  of  stock  to  be 
issued  by  the  corporation  purchasing  such 
railroad.  Answers  to  Questions  by  Govern- 
or, 37  Mo,  129. 

The  St.  Joseph  &  Iowa  railroad  company 
had  no  authority  under  its  charter  to  sell 
its  franchises,  although  it  had  power  to 
pledge  them.  The  power  to  sell  was  only 
given  by  Mo.  Act  of  March  24,  1870,  State 
ex  rel.  V.  Chicago,  B.  &*  K,  C.  K.  Co,,  89  Mo. 
523.  14  S.  W.  A'l-p.  522. 

The  last  proviso  of  section  2  of  said  act 
of  1870,  though  using  different  language, 
was  designed  to  be  as  broad  as  the  previous 
portion  of  the  section,  and  to  include  all 
those  cases  where  a  railroad  company  of 
another  state  is  allowed  to  make  arrange- 
ments for  the  operation  of  a  road  in  this 
state,  whctlicr  by  lease,  purchase,  or  other- 
wise. State  ex  rel.  v.  Chicago,  B.  «&«•  K.  C. 
A\  Co.,  89  Mo.  523,  14  S.  IV.  Rep.  522. 

In  transferring  a  railroad  by  the  direct- 
ors, the  vendors  received  in  bonds  of  the 
purchasing  company  the  full  value  of  the 
road  and  secured  by  a  mortgage  on  the 
same  property,  aft'd  in  addition  a  large 
amount  of  fully  paid-up  stock,  possessing  a 
considerable  market  value,  for  which  no 
consideration  was  paid.  Held,  that  such 
contract  and  the  bonds  issued  under  it  were 
valid  as  to  bona  fide  purchasers  for  value 
without  notice,  but  voidable  as  to  others ; 
and  this  is  so  though  the  parties  acted  un- 
der legal  advice,  and  believed  they  were 
makmga  valid  contract.  Central  Trust  Co. 
v.  New  York  City&*  N.  R.  Co.,  18  Abb.  N. 
Cas.  {N.   Y.)  381. 

The  conveyance  made  by  the  East  Line 
&  Red  River  railroad  company  to  the  Mis- 
souri, Kiinsas  &  Texas  railroad  company, 
on  Nov.  28, 1881,  of  all  its  property  and  cor- 
porate franchises  of  every  character  what- 
ever necessary  to  the  conduct  of  the  busi- 
ness for  which  it  was  created,  except  the 
mere  franchise  to  be  a  corporation,  until 
sucli  time  as  by  agreement  of  the  parties 
this  might  be  taken  away  by  dissolution, 
was  not  authorized  by  law.  East  Line  &* 
R.  R.  R.  Co.  V.  State  ex  rel.,  40  Am.  &* 
Eng.  R.  Cas.  574,  75  Tex.  434,  12  S.  IV.  Rep. 
690. 

To  authorize  such  a  sale,  power  to  sell 
and  the  power  of  the  purchaser  to  acquire 
title  by  the  sale  must  both  exist.  One  com- 
pany had  no  power  to  sell  its  road  or  fran- 


chise, and  the  other  company  iiad  no  power 
to  buy.  Last  Line  &-  R.  R.  R.  C  \  v.  State 
ex  rel.,  40  Am.  «&>•  Eng.  R.  Cas.  574,  ;",  Tex. 
434,  12  S.  W.  ^/r/.  690.— Following  East 
Line  &  R.  R.  R.  Co.  v.  Rushing,  69  Tex. 
306. 

The  purchasing  company  being  a  corno- 
ration  chartered  and  organized  under  the 
laws  of  Kansas  and  Missouri,  the  sale  was 
in  clear  violation  of  Tex.  Const,  art.  10,  §  6. 
East  Line  &*  R.  R.  R.  Co.  v.  State  ex  rel., 
40  Am.  &*  Ettg.  R.  Cas.  574,  75  Tex.  434, 
12  5.  W.  Rep.  6<)o. 

11.  Power  to  purchase.  —  When  a 
company  has  the  right  of  constructing  a 
particular  railroad,  with  general  power  to 
purchase  all  kinds  of  property,  of  whatever 
nature  or  kind,  it  may  purchase  from  an- 
other company  a  road  constructed  upon 
that  line,  if  the  latter  company  has  power 
to  sell  the  same.  Branch  v.  Jesup,  9  Am. 
<S-  Eng.  R.  Cas.  558,  106  U.  S.  468,  1  Sup. 
Ct.  Rep.  495. 

The  legislature  of  Missouri  in  giving  a 
corporation  of  another  state  power  to  pur- 
chase a  railroad  in  this  state,  with  the  priv- 
ileges and  franchises  belonging  to  it,  had 
the  right  to  prescribe  the  terms  upon  which 
the  purchase  should  be  made.  State  ex  rel. 
v.  Chicago,  B.  &*  K.  C.  R.  Co.,  89  Mo.  523, 
14  S.  W.  Rep.  522. 

A  grant  of  power  to  a  company  to  locate 
and  construct  branch  roads,  does  not  con- 
fer authority  to  purchase  and  operate  the 
railroad  of  another  company  constructed 
under  a  different  charier.  Campbell  v. 
Marietta  6f  C.  R.  Co.,  23  Ohio  St.  168. 

A  railway  company  chartered  under  gen- 
eral laws  cannot  purchase  the  railway  of 
another  company  ;  it  results  that,  since  the 
power  to  make  such  a  purchase  could  not 
exist  under  an  original  charter  of  incorpo- 
ration, it  could  not  be  obtained  through  an 
amended  charter,  in  the  absence  of  legis- 
lative permission.  Gulf,  C.  &•  S.  F.  R.  Co, 
V.  Morris,  35  Am.  &>  Eng.  R.  Cas.  94,  67 
Tex.  692,  4  S.   IV.  Rep.  156. 

A  railroad  company  can  only  be  author- 
ized by  statute  to  purchase  the  property  and 
franchises  of  another  road ;  and  in  order  to 
make  such  sale  valid,  there  must  be  both  the 
power  to  sell  and  the  power  to  purchase. 
Where  two  ro.ids  are  parallel  or  competing, 
then  one  road  has  no  power  to  sell  to  the 
other.  East  Line  <S-  R.  R.  R.  Co.  v.  Rushing, 
34  Am.  <S-  Eng.  R.  Cas.  367,  69  Tex.  306,  6 
S.  W.  Rep.  834. 


I 


'i  i'i 


110 


SALES  OF   RAILROADS,  12-14. 


12.  Bights  ol'  purchasers,  uciicr- 

ally.— One  company  was  authorized  to  take 
for  its  roadbed  land  not  exceeding  66  feet 
in  width.  Another  compiiny  was  author- 
ized to  purchase  the  former  road,  and  tlie 
act  conferring  such  authority  contained  a 
provision  that  the  road  so  purciiased.  "in 
its  further  construction  and  completion, 
maintenance,  use,  and  enjoyment,  should  be 
regulated  and  governed  by  the  provisions 
of  the  charter  of  the"  former  company.  The 
latter  company  was  authorized  to  take  land 
for  its  roadbed  not  exceeding  loo  feet  In 
width.  Hell/,  that  the  latter  company  had 
the  right  to  widen  the  roadbed  of  the  other 
to  a  width  not  to  exceed  loo  feet.  Childs 
V.  Central  Ji.  Co.,  33  A^.  /  /-  323- 

The  Carolina  Central  railroad  company, 
by  virtue  of  the  statutes  under  which  it  was 
organized,  and  the  titles  acquired  under  the 
judicial  sales  of  the  Wilmington  &  Char- 
lotte railroad  company,  the  Wilmington, 
Charlotte  &  Rutherfordton  railroad  com- 
pany, and  the  Carolina  Central  railroad 
company,  became  the  owner  of  all  the 
rights,  powers,  privileges,  etc.,  of  those  cor- 
porations, and  likewise  became  liable  for  all 
damages  and  assessments  on  account  of  the 
appropriation  of  lands  of  individuals  for  the 
right  of  way.  Hendrick  v.  Carolina  C.  R. 
Co.,  loi  N.  Car.  617.  8  5.  E.  Rep.  236. 

Where  a  railroad  is  purchased  by  anotlier 
company,  in  pursuance  of  a  statute,  in  the  ab- 
sence of  any  provision  of  law  to  the  contrary, 
the  road  passes  to  the  purchasing  company 
subject  to  the  same  restrictions  and  limita- 
tions as  to  rates  chargeable  for  transporta- 
tion &^  attached  to  it  in  the  hands  of  the 
vendor.  Campbell  v.  Marietta  &•  C.  R.  Co., 
23  Ohio  St.  168.— Followed  in  Peters  v. 
Marietta  &  C.  R.  Co.,  18  Am.  &  Eng.  R.  Cas. 
492,  42  Ohio  St.  275.  Quoted  in  Daniels 
V.  St.  Louis,  K.  C.  &  N.  R.  Co..  62  Mo.  43. 

The  purchasers  of  a  sold-out  railway  suc- 
ceed to  all  its  rights,  powers,  and  privileges, 
and  may  continue  business  in  its  name.  No 
change  of  name  is  required  ;  no  notice  need 
be  given  of  the  purchase  and  merger ;  nor 
in  its  future  dealings  with  strangers  is  it 
compelled  to  show  by  what  special  action 
or  authority  it  claims  succession.  Acres  v. 
Moyne,  59  Tex.  623. 

Neither  under  Texas  Act  of  August  15, 
1870,  nor  under  the  joint  resolution  of  May 
18,  1871,  can  the  governor,  after  a  sale  has 
been  made  to  the  state  of  a  certain  railroad, 
exact  from  a  subsequent  purchaser  a  bond 


conditioned  that  he  will  keep  said  railroad 
in  running  order,  and  that  he  will  not  re- 
move or  cause  to  be  removed  any  of  the 
iron  from  the  track  of  the  road  or  any  of  the 
rolling  stock  therefrom.  Ireland  v.  Taylor, 
dZTex.  158.45.  W.Rep.dr;^. 

Since  the  governor  is  neither  authorized 
by  the  legislature  to  require  such  bond,  nor 
to  annex  such  conditions  to  the  sale  of  the 
road,  such  bond  is  without  lawful  consider- 
ation to  support  it,  and  is,  therefore,  invalid. 
Ireland  v.  Taylor,  68  Tex.  1 58, 4  5.  W.  Rep.  65. 

13.  Tlicir  liabilities,  geuerully.— 
Where  the  former  owners  of  a  railroad 
are  in  nominal  possession,  but  the  actual 
management  and  beneficial  ownership  is  in 
purchasers,  both,  or  either,  may  be  liable 
for  injuries  caused  by  negligence  in  the 
management  of  the  road.  Lockhart  v.  Lit- 
tle Rock  6-  M.  R.  Co.,  40  Fed.  Rep.  631.— 
Referring  to  O'Neill  z/.  Chicago  &  N.  W. 
R.  Co..  I  McCrary  (U.  S.)  505. 

A  statute,  authorizing  one  company  to 
purchase  the  road  of  another,  provided  that 
it  should  not  be  discontinued,  but  that 
through  cars  should  be  run  on  the  same. 
Held,  that  the  state  only  could  maintain  an 
action  for  a  failure  to  Comply  with  these 
conditions.  Elisabethtown  v.  Chesapeake, 
0.  &*  S.  W.  R.  Co.,  (A>.)  22  S.  W.  Rep.  609. 

A  purchase  of  the  property  and  franchises 
of  a  railroad,  under  judicial  process  or  un- 
der a  deed  of  trust,  will  work  a  transfer  to 
the  purchaser  of  its  statutory  and  common 
law  obligations  to  the  public.  Central  Sr- 
M.  R.  Co.  v.  Morris,  28  Am.  &»  Ettg.  R.  Cas. 
50,  68  Tex.  49,  3  S.  W.  Rep.  457. 

14.  Liability  to  perforin  engage- 
nieuts  of  selliug  conipauy.— A  pur- 
chaser of  the  roadbed,  property,  and  fran- 
chises of  a  railroad  company  is  not  liable  for 
its  obligations,  which  are  not  liens  upon  the 
property.  Sappington  v.  Little  Rock,  M.  R. 
&*  T.  R.  Co.,\\  Am.  &•  Ettg.  R.  Cas.  330, 
37  Ark.  23.  Chesapeake,  O.  &»  S.  W.  R.  Co. 
V.  Griest,  30  Am.  &»  Eng.  R.  Cas.  149,  85 
Ky.  619,  4  5.  W.  Rep.  323.— Reviewing 
Powell  V.  North  Mo.  R.  Co.,  42  Mo.  68.— 
Menasha  v.  Milwaukee  6-  N.  R.  Co.,  5  Am. 
6*  Eng.  R.  Cas.  300,  52  IVis.  414,  9  JV.  W. 
Rep.  396.— Quoted  in  People  ex  rel.  v. 
Louisville  &  N.  R.  Co.,  (III.)  25  Am.  &  Eng. 
R.  Cas.  235,  5  N.  E.  Rep.  379. 

Persons  owning  a  coal  mine  built  a  short 
line  of  railroad  connecting  the  mine  with  a 
main  line,  and  afterwards  sold  their  short 
line  to  a  railroad,  fixing  in  the  convey- 


SALES  OF   RAILROADS,  15,  16.— SATISFACTION. 


Ill 


ance  the  price  to  be  charged  for  liaul- 
ing  coal.  On  the  same  day  the  road  was 
sold  to  a  second  company  which  operated  it 
for  three  years,  carrying  coal  at  the  agreed 
price.  Held,  that  the  second  company 
thereafter  was  bound  by  the  rate  fixed  in 
the  contract  with  the  first  company.  Chi- 
cago &»  A.  R.  Co.  V.  Chicago,  V.  &*  W.  Coal 
Co.,  79  III.  121. 

A  contract  of  a  railway  company  to  per- 
form certain  conditions  with  a  county  mak- 
ing a  subscription  or  donation  in  its  aid  in 
consideration  thereof,  is  merely  a  personal 
undertaking,  and  not  in  the  nature  of  a 
covenant  running  with  land ;  and  a  pur- 
chaser of  such  company's  road  and  property 
is  under  no  personal  obligation  to  perform 
such  contract.  People  ex  rel.  v.  Louisville  &» 
N.  A'.  Co.,  I20  ///.  48,  10  A^  E.  Rep.  657. 

15.  Rights  of  creditors— Ahhuuip- 
tion  of  ilobts  of  selling  company.  — 
An  agreement  by  one  railroad  in  purchasing 
another  to  assume  all  the  "bonded  and 
floating  indebtedness  "  of  the  selling  com- 
pany does  not  bind  the  purchasing  company 
to  pay  the  whole  of  the  expenses  of  running 
the  lOad  as  consolidated  while  in  a  re- 
ceiver's hands,  so  as  to  leave  a  larger  fund 
for  the  bondholders  of  the  selling  company. 
Union  Trust  Co.  v.  Illinois  Midland  R.  Co., 
25  Am.  &*  Eng.  R.  Cas.  560,  117  U.  S.  434, 
6  Sup.  a.  Rep.  809. 

Where  the  charter  of  a  railroad  company 
authorizes  it  to  buy  another,  and  provides 
that  the  purchase  shall  in  no  way  affect  the 
rights  of  the  creditors  of  the  selling  com- 
pany, this  provision  will  be  held  as  includ- 
ing unsecured  creditors.  Montgomery  &» 
W.  P.  R.  Co.  V.  Branch,  59  Ala.  139.  —  Re- 
viewed IN  Spence  v.  Mobile  &  M.  R.  Co., 
79  Ala.  576. 

The  judgment  creditors  of  a  selling  com- 
pany do  not  acquire  any  equitable  lien  upon 
the  property  sold  by  virtue  of  the  purchas- 
ing company  assuming  payment  of  the  in- 
debtedness of  the  selling  company.  They 
merely  acquire  the  right  to  look  to  the 
purchasing  company  for  payment.  Hervey 
V.  Illinois  Midland  R.  Co.,  28  Fed.  Rep.  169. 

If  a  person  makes  an  agreement  with  a 
railway  company  by  which  he  buys  all  its 
properly  and  credits,  and  assumes  to  pay  all 
its  debts,  a  credi">r  of  the  corporation  may 
recover  his  debt  of  such  party.  Snell  v. 
Ives,  85  ///.  279. 

16.  Liability  for  torts  of 'selling 
company,— Where  the  purchasing  corpo- 


ration undertakes  to  pay  "all  current  in< 
debtedness  "  incurred  by  the  vendor  in  the 
operation  of  its  railroad,  the  contracting 
corp  irations  being  railroads,  even  if  the 
conira.:t  can  be  construed  to  render  the 
purcf;aser  liable  for  a  tort  committed  by 
the  vendor  in  the  operation  of  its  road,  the 
claim  must  first  be  reduced  to  judgment  in 
an  action  against  the  vendor,  the  corpora- 
tion which  committed  the  tort.  Chtsapeake, 
O.  &*  S.  W.  R.  Co.  v.  Griest,  30  Am.  A- 
Eng.  R.  Cas.  149,  85  Ky.  619.  4  S.  W.  Rep. 

323- 

The  power  and  franchise  of  the  plaintifl 
in  error  to  take  by  purchase,  own,  and  oper- 
ate the  Sioux  City  railrr  ad  is  derived  from 
the  provisions  of  the  Neb.  Act  of  March  1, 
1881,  entitled  "An  act  authorizing  the  sale 
and  purchase  of  railroads  in  certain  cases," 
and  plaintiff  in  error  is  bound  by  the  provi- 
sions of  said  act,  and  is  liable  under  said  act 
for  damages  for  an  injury  dune  an  employ6 
of  the  Sioux  City  road  before  its  purchase 
by  the  plaintifl  in  error.  The  word  in- 
debtedness, as  used  in  the  first  section  of 
the  act,  was  intended  to  and  does  mean  and 
embrace  all  debts  and  demands  against  the 
selling  company  or  railroad  upon  which  a 
suit  could  be  maintained  either  at  law  or  in 
equity.  Chicago,  St.  P.,  M.  &*  0.  R.  Co.  v. 
Lundstrom,  21  Am.  &»  Eng.  R.  Cas.  528,  16 
Neb.  254, 49  Am.  Rep.  718.  20  N.  W.  Rep.  198. 

Where  a  railroad  company  is  sold  by  order 
of  court  to  pay  debts,  a  purchasing  com- 
pany is  not  responsible  for  injuries  done  by 
the  former  company  to  adjoining  lands 
while  it  was  in  control.  Hammond  v.  Port 
Royal &*  A.  R.  Co.,  11  Am.  &^  Eng.  R.  Cas. 
352,  15  So.  Car,  10. 


SALVAGE. 

Claims  for  lalvage  lervices,  see  Admiralty, 

4. 
Lien   for,    see   Carriage  of  Merchandise, 

376. 


SAMPLES. 

Of  commercial  traveler,  special  damages  for 
loss  of,  see  Carriage  of  Merchandise, 
805. 

When  may  be  carried  as  baggage,  see  Bag- 
gage, 42. 


SATISFACTION. 
Of  judgments,  see  Judgment,  30-41. 
—  —  cancellation  of,  see  Equity.  15. 
See  also  Accord  and  Satisfaction. 


Il  .1 


>> 

.  ! 


?)'! 


I; 


112 


SAVANNAH-SECRET  AGREEMENTS. 


8AVAHNAH.  SEAL. 

DecUieu  particularlj  applicable  to,  lee  Mv-     Nectiiity  and  aufficiency  of,  lee  Contracts, 

NICIPALCoRroRAllUNS,  54.  l^fi. 

—  of,  on  report  of  commissionert  in  condem- 
nation proceeding!,  see  Eminent  Dumain, 
787. 

to  a  release,  lee  Rkleask,  2. 

Omiision  of.  from  money  package,  liability  of 
express  company,  see  Express  Companies, 
30. 

Upon  railway  aid  bond,  see  Municipal  and 
Local  Aid,  307. 


SAVING  CLAirSEB. 
In  ■tatutes,  see  Statutes,  00. 


SCALING  LAWS. 
Efllict  of,  generally,  see  Bonds,  60* 


SCALPERS. 
See  Ticket  Brokers,  150,  151i 


SEALED  VERDICTS. 
Form  and  effect  generally,  see  Trial,  200. 


SCHEDULE. 
Attached  to  complaint  in  action  for  lost  of 

baggage,  see  KAr.uAr.E,  110. 
Oi'ty  of  passenger  carrier  to  observe,  see 

Carriace  OK  Passengers,  122. 
—  to  instruct  employe  as  to  changes  in,  see 

Empi.ov£s,  Injuries  to,  33. 
Instructions  as  to  trains  behind  time,  see 

Crossings,  Injuries,  etc,  at,  354. 
Obligation  to  run  on  schedule  time,  see  Time 

Tables,  2,  3. 
Of  freight  and  passenger  rates,  filing  and 

publishing,   see    Interstate   Commerce, 

131-141. 


SEAMEN. 
Who  are,  see  Admiralty,  2. 


SEARCH. 

For  lost  baggage,  recovery  of  expeniet  of, 
see  Bagcjaue,  124. 


SEASON  TICKETS. 
See  Tickets  and  Fares,  57> 

SEATS. 


—  passenger  rates,  posting,  sec  Tickets  and      Duty  to  furnish  passengers  with,  see  Car- 


fares, 110. 
Running  out  of  schedule  time,  liability  for, 
see  Employes,  Injuries  to,  106. 


SCHENECTADY. 
Decisions  particularly  applicable  to,  see  Mu- 
nicipal Corporations,  55. 


riage  of  Passengers,  224;  Ejf.ction  of 

Passengers,  32. 
provide,  for  passengers,  see  Ejection 

OF  passengers,  18* 
Passenger  injured  by  leaving,  before  train 

stops,  see  Elevated  Railways,  211. 


SCHOOL   DISTRICTS. 
Power  of  legislature  to  authorize  aid  to  rail- 
ways by,  see  Municipal  and  Local  Aid. 
11,  12. 


SEATTLE. 
Decisions  particularly  applicable  to,  see  Mu- 
nicipal Corporations,  50. 


SCHOOLS. 
School  taxes,  see  Taxation,  58. 
in  Canada,  see  Taxation.  390. 

SCHOOL  TAXES. 
Where  to  be  levied,  see  Taxation,  136. 


SECONDARY  EVIDENCE. 
In  actions  on  stock  subscription,  see   Sub- 
scriptions to  Stock,  110. 
See  also  Best  and  Secondary  Evidence. 


SECOND  CONDEMNATION. 
Measure  of  damages  in  cases  of,  see  Eminent 
Domain,  662. 


SCIRE  FACIAS. 
By  creditor  upon  unpaid  subscription,  see 

Stockholders,  29. 
Enforcement  of  forfeiture  of  franchise  by, 

Charters,  89. 


see 


SECRET   AGREEMENTS. 
By  subscribers  in  fraud  of  other  subscribers, 

se"  juuscriptions  to  Stock,  33. 
In  'raid  of  other  subscribers  as  a  defense  to 

•tCtion  on  subscription,  sec  Subsckipiions 

to  Stock,  108. 


I  I      ^    ■!; 


SECRETARY-SERVANTS. 


113 


810BSTABT. 
Of  ttAte,  ftUng  lubicripiion  papers  with,  see 

SuHscmPTioNs  TO  Stock,  10. 
payment  of  fee  to,  on  coniolidation  of 

roadi,  see  Consolidation,  It). 
—  war,  power  and  duties  of,  aa  respects 

bridges,  see  Bridges,  ktc,  G7. 
Rights,  powers,  and  duties  of,  sec  Officers, 

14. 
Service  of  process  on,  see  Process,  23,  24. 


SECRET  INSTRUCTIONS. 
To  agents,  see  Agency,  23. 


SECTION  BOSS. 

Declarations  of,  as  evidence,  see  Animals,  In- 
juries TO,  433. 


SECTION  FOREMEN. 
As  experts,  see  Witnessks,  185. 
—  fellow-servant  of  other  employes,  see  Fel- 
low SERVANTS,  342-354. 
Service  of  process  on,  see  Process,  37. 


SECTION  HANDS. 
As  fellow-servants  of  engineer,  sec  Fellow- 

SKKVANTS,  2UO. 

with  other  employes,  see  Fellow-ser- 
vants, 411. 

Contributory  negligence  of  deceased,  in  ac- 
tion for  causing  death,  see  D&ath  by 
Wrongkui,  Act,  210. 

Riding  on  train,  when  fellow-servants  with 
conductor,  see  Ff.i.low  servants,  250. 

When  deemed  in  different  department  from 
trainmen,  see  Fellow  servants,  1 10. 


SECURED  CREDITORS. 

Rights  of,  see  Eastern  R.  Co.,  4. 


SECURITY. 

Before  suit  in  replevin,  see  Replevin,  3. 

For  costs,  see  Costs,  O. 

On  appeal,  see  Api'eal  and  Error,  133. 

in  condemnation  proceedings,  sec  Emi- 
nent Domain,  041-944. 

Under  Canadian  expropriation  acts,  see  Emi- 
nent Domain,  1223. 


SEIZURE. 

Not  essential  to  exercise  of  right  of  stoppage 
in  transitu,  see  Carriage  of  Merchan- 
dise, 501. 

Of  goods  by  military  forces,  claims  for,  see 
Claims  against  United  States,  9. 

—  —  when  relieves  carrier  from  liability,  see 
Carriack  of  Mkkchandise,  205-302. 
7  D.  R.  D.— 8 


Of  land,  ejectment  after,  see  Eminent  Domain, 
1014. 

right  of  action  in  ejectment  for,  see 

Ejectment,  2. 

—  liquors  in  possession  of  carrier,  see  In- 
toxicating Liquors,  4. 

Under  legal  process  as  a  defense  to  carrier^ 
see  Carriage  of  Merchandise,  27. 


SELECTION. 
Of  indemnity  lands,  see  Land  Grams,  51- 

50. 
—  route  of  elevated  railws;,  see  Elbvatbo 

Railways,  12. 


SELLING  AGENTS. 
Implied  powers  of,  see  Agency,  IS. 


SEPARABLE  CONTROVERSIES. 

Removal  of  cause  on  ground  of,  see  Removal 
of  Causes,  30-41. 


SEPARATE  ESTATE. 

Of  married  women,  power  to  make  contracts 
touching,  see  Hcsband  and  Wife,  O. 

Right  of  married  women  to  sue  alone  for  in- 
juries to,  see  Husband  and  Wife,  28. 


SEPARATE  PROPERTY. 

Of  wife,  competency  of  husband  and  wife  in 
actions  affecting,  see  Witnesses,  23. 


SEPARATE   TRIALS. 
When  granted,  see  Trial,  30. 


SEPARATION. 
Of  things  sold,  see  Sales,  0. 


SEQUESTRATION. 
As  a  substitute  for  execution,  see  Execution, 
32. 


SERVANTS. 

Distinguished  from  independent  contractor, 
see  Independent  Contractors,  2,  3. 

No  limitation  of  liability  as  against  wilful 
acts  of,  see  Baggage,  102. 

Protection  of  passengers  from  acts  of,  see 
Carriage  of  Passengers,  301-312. 

Right  of  master  to  prospective  damages  for 
causing  death  of,  sec  Death  by  Wrong- 
ful Act,  417. 

See  also  Employes. 


V. 


lU  SERVICE— SET-OFF;  COUNTERCLAIM;  RECOUPMENT,  1. 


i«i^. 


fif 


SERVICE. 
Of  Attachment,  see  Attachment,  etc.,  44- 
46. 

—  garnishee's  answer,  see  Attachment,  etc., 

67. 

—  notice  of  appeal  in  condemnation  proceed- 

ings, see  Eminent  Domain,  040. 

claim  ibr  laborer's  lien,  see  Liens, 

61. 

—  —  —   condemnation    proceedings,    see 

Eminent  Domain,  204. 
by  publication,   see  Eminent 

Domain,  208. 
construction  of  street  crossings,  see 

Crossing  OF  Streets  and  Highways,  71. 
sufficiency  of,  a  question  of  law,  see 

Animals,  Injuries  to,  534. 

—  papers  in  bankruptcy,  see  Bankruptcy,  5. 

—  process  and  how  proved,  see  Process,  13- 

48. 

t in  condemnation  proceedings,  sec  Emi- 
nent Domain,  304. 

justice's  court,  see  Justice  of  the 

Peace,  5. 

suits  against  receivers,  see  Recfiv- 

ers,  133. 

on  foreign  corporations,  see  Foreign 

Cokporations,  26. 

—  summons,  return  of,  see  Ejectment,  22. 

—  writ  of  mandamus,  see  Mandamus,  32. 
Term  of,  see  Employes,  2. 


SERVICES. 
Action  for  loss  of,  between  time  of  injury  and 

time  of  death,  see  Death  by  Wrongful 

Act,  6. 
Competency  of  evidence  as  to  value  of,  see 

Evidence,  8. 
Contracts  for,  whr  n  not  within  the  statute 

of  frauds,  see  Contracts,  16. 
Extra  charges  for  special,  see  Charges,  64- 

67. 
Of  child,  contributory  negligence  of  parent, 

when  bars  action  for  loss  of,  see  Chil- 

n  '.en.  Injuries  to,  132-135. 
during  minority,  damages  to  parent  for 

loss  of,  see  Death  by   Wrongful  Act, 

404. 
recovery  for  loss  of,  see  Children,  In- 
juries to,  182. 

—  deceased  parent,  measure  of  damages  for 

loss  of,  see  Death  by  Wrongful  Act, 
301. 
proof  of  value  of,  on  question  of  dam- 
ages, see  Death  by  Wrongful  Act,  280, 
281. 

—  person  killed,  allegation  of  loss  of,  see 

Death  by  Wrongful  Act,  132. 

—  wife,  fiction  by  husband  for  loss  of,  see 

Hu.msano  and  Wife,  16. 


Of  wife,  measure  of  damages  to  husband  for 
loss  of,  see  Death  by  Wrongful  Act, 
400. 

Opinion  of  witness  as  to  value  of,  see  WiT« 
nesses,  113. 

Parents'  right  of  action  for  loss  of,  how  af- 
fected by  contributory  negligence  of  in- 
jured child,  see  Children,  Injuries  to, 
78. 

Rendered  by  directors,  compensation  for,  see 
Directors,  etc.,  27-33. 

—  to  government,  compensation  for,  see 
Land-grant  Railroads,  lO. 

Salvage,  see  Admiralty,  4. 

Specific  performance  of  contracts  for,  see 
Specific  Performance,  lO. 

Statement  of  cause  of  action  in  complaint 
for,  see  Pleading,  14. 

To  company,  payment  for  stock  in,  see  Sub- 
scriptions TO  Stock,  135. 


SERVIENT  ESTATE. 
Rights  of  owner  of  easement  as  affected  by 
conveyance  of,  sec  Easements,  13. 


SET-OFF  ;  COUNTERCLAIM  ;  RE- 
COUPMENT. 
Against  damages  for  the  condemnation  of 

land,  see  Eminent  Domain,  673. 
In  actions  for  wages,  see  Employes,  16. 
on  subscriptions  to  stock,  see  Subscrip- 
tions to  Stock,  160. 
Of  benefits  against  damages,  see  Elevated 
Railways,  178. 

—  damages  against  charges,  see  Charges, 

86. 

—  enhanced  value  of  land  not  taken,  see  Emi- 

nent Domain,  1  lOO. 
Replication  to  plea  of,  see  Pleading,  70. 
What  allowable  in  creditor's  suit  against 

stockholder,  see  Stockholders,  72,  73. 

1.  lugeueral.  —  A  set-off  cannot  be 
pleaded  by  a  defendant  in  a  proceeding  by 
the  commonwealth  to  enforce  the  payment 
of  a  tax  due  the  state,  as  a  tax  is  not  a  mere 
debt  due  from  the  citizen  to  the  govem- 
nient.  Newport  &*  C.  Bridge  Co.  v.  Doug' 
lass,  12  Bush  (Ky.)  673, 18  Am.  Ry.  Rep.  221. 

Upon  a  company  defaulting  in  the  pay- 
ment of  interest  on  its  bonds,  the  mortgage 
trustees  took  possession  of  the  property, 
and  operated  it  for  a  time  for  the  benefit 
of  the  bondholders,  and  subsequently  the 
mortgage  was  foreclosed,  and  tlie  road  sold 
to  the  trustees.  Afterward  they  commenced 
action  against  defendant  to  recover  moneys 
received  from  the  government  for  trans- 
porting the  mails  after  they  took  posses- 
sion ;  and  defendant  claimed  a  set-off  for 


SET-OFF;  COUNTERCLAIM;  RECOUPMENT,  2, 3. 


1»5 


IT ' '  <:ys  due  on  a  note  that  the  company 
had  given  him  prior  to  the  time  the  trus- 
tees took  possession,  and  which  was  not 
due  when  they  took  possession.  Held,  that 
it  was  not  a  proper  set-off.  Murray  v. 
Deyo,  lo  Hun  {N,  K.)  3. 

An  obligation  for  money  to  be  paid  in 
*he  bonds  of  a  railroad  company,  by  a  given 
day,  may,  if  not  complied  with,  be  the  sub- 
ject of  set-ofi  in  a  suit  against  the  original 
holder  of  said  obligation,  or  his  assignee, 
for  money  due  said  company.  And  this  is 
so,  whether  the  obligation  fixes  the  value  at 
which  the  bonds  are  to  be  received  or  not, 
the  law  having  established  a  rule  by  which 
the  value  may  be  ascertained  and  rendered 
certain.  Memphis  &»  L,  J^.  X.  Co.  v. 
Walker,  2  Hear:(Tenn.)  467. 

The  right  to  a  set-of{  is  incidental  to,  and 
dependent  upon,  the  fact  of  the  plaintiff's 
having  established  a  right  to  recovery 
against  the  defendant.  If  this  fails,  the 
righi  of  set-off  cannot  exist ;  and  judgment 
cannot  be  rendered  under  the  r^ct  of  1852, 
for  any  excess  that  may  be  found  in  favor 
of  the  defendant.  Braselton  v.  Nashville 
&*  C.  R.  Co.,  3  Head(Tenn.)  570. 

Where  an  injured  employ6  sues  to  en- 
force an  agreement  to  compromise  a  claim 
for  personal  injuries,  whereby  his  company 
agrees  to  pay  him  a  fixea  amount,  and  he 
agrees  to  perfor-.n  such  labor  for  the  com- 
pany as  he  is  able  to  do,  the  company  is  not 
entitled  to  a  set-oif  for  the  value  of  services 
that  he  performed  about  his  private  affairs, 
where  it  appears  that  he  was  not  able  to  do 
the  work  of  the  company,  and  W9S  not 
called  upon  to  do  it.  Frazierv.  East  Tenn., 
V.  6-  G.  R.  Co.,  40  Am.  &*  Eng.  R.  Cos. 
358,88  Tenn.  138,  128.  W.Rep.  537. 

A  railroad  company  obtained  a  judgment 
against  defendant  for  the  possession  of  cer- 
tain rolling  stock,  and  used  it  until  the 
judgment  was  reversed  on  appeal,  and  pos- 
session of  the  property  awarded  to  defend- 
ant. Subsequently  the  railroad  company 
was  garnisheed  for  money  which  was 
claimed  to  be  due  defendant  for  the  use  of 
the  rolling  stock.  Held,  that  the  use  of  the 
rolling  stock  implied  a  promise  or  under- 
taking on  the  part  of  the  company  to  pay 
therefor,  but  the  defendant  might  offset  it 
agai»)st  the  judgment  that  the  company 
held  against  him,  and  it  was,  therefore,  not 
subject  to  garnishment.  Keyes  v.  Milwau- 
kee ^  St.  P.  R.  Co.,  21  Wis.  691. 

Two  persons  subscribed  individually  for 


certain  shares  of  railroad  stock,  agreeing  to 
pay  therefor,  when  the  railroad  company 
had  paid  for  certain  timber  that  they  had 
contracted  jointly  to  furnish  the  company. 
It  was  found  that  the  sv.bscriptioiis  were 
several,  and  therefore  the  joint  book  ac- 
count could  not  be  set  off  against  the  sub- 
scriptions. Held,  that  this  left  each  party 
to  enforce  the  separate  accounts,  according 
to  agreement.  Gleason  v.  Vermont  C.  R. 
Co.,  25  Vt.  yj. 

2.  Mutuality. — Two  persons  each  sub- 
scribed for  certain  shares  of  the  capital 
stock  of  a  railroad  company,  but  by  the 
terms  of  the  subscription  each  became  a 
separate  and  individual  debt.  Afterwards 
the  two  subscribers  became  the  creditors  of 
the  railroad  con.nany  by  a  joint  book  ac- 
count. Held,  that  there  was  no  mutuality 
between  the  subscriptions  and  the  book  ac- 
count, and  the  latter  could  not  be  set  off  in 
an  action  by  the  company  to  recover  on  the 
subscriptions.  Gleason  v.  Vermont  C.  R. 
Co.,  25  Vt.  37. 

3.  Unliquidated  demands.*— A  set- 
off cannot  be  pleaded  to  Uii  action  for  un- 
liquidated damages,  arising  out  of  the 
breach  of  a  contract,  in  refusing  to  permi* 
the  plaintiff  to  perform  services  which  he 
had  contracted  to  perform.  George  v.  Ca- 
hawba  &»  M.  R.  Co.,  8  Ala.  234. 

Under  R.  I.  Gen.  St.  ch.  201,  §  14,  a  set- 
off covers  only  claims  which  may  be  ascer- 
tained by  calculation,  and  which  need  no 
proof  except  of  the  liability.  Therefore, 
where  a  carrier  surs  an  individual  in  as- 
sumpsit, the  defendant  cannot  plead  as  a 
set-off  an  unliquidated  claim  for  damages 
against  the  carrier  for  the  loss  of  goods 
shipped,  growing  out  of  a  different  transac- 
tion from  the  one  on  which  the  plaintiff's 
claim  is  based.  Clyde  v.  Knight,  12  R.  1. 
194. 

Plaintiff  was  expecting  an  express  pack- 
age containing  money,  and  requested  de- 
fendant to  take  it  up  and  hold  it  until  plain- 
tiff's return  from  a  short  trip.  Defendant 
received  the  package,  but  refused  to  deliver 
it  unless  plaintiff  would  liquidate,  or  allow 
him  to  take  therefrom,  the  amount  of  sev- 
eral claims  which  defendant  held  against 
plaintiff,  and  when  sued  insisted  on  a  set- 
off of  the  amount  of  such  claims.  Held, 
that  there  was  an  implied  promise  to  deliver 
the  money  to  plaintiff,  and  a  refusal  to  do 


See  also  Charges,  86,  80. 


116 


SET-OFF,  COUNTERCLAIM;   RECOUPMENT,  4-6. 


"X! 


m 


! 

ijS' 
III  .-• 


L  ^ 


n^ 


m 


so  was  a  breach  of  contract  and  conversion 
ot  the  money,  giving  plaintiff  the  right  to 
recover  the  money,  with  legal  interest. 
/ones  v.  Hunt,  74  Tex.  657,  12  5.  IV.  Rep. 

832. 

Texas  Rev.  St.  art.  649  provides  that  "  if 
the  plaintiff's  cause  of  action  be  a  claim  for 
unliquidated  or  uncertain  damages,  founded 
on  a  tort  or  breach  of  covenant,  the  defend- 
ant shall  not  be  permitted  to  set  off  any 
debt  due  him  by  the  plaintiff."  Held,  that 
the  amount  of  plaintiff's  claim  was  the 
principal  with  legal  interest,  and  could  be 
readily  ascertained  by  a  mathematical  cal- 
culation ;  and  was,  therefore,  not  "  uncer- 
tain," within  the  meaning  of  the  statute, 
and  the  set-off  was  allowable.  Jones  v. 
Hunt,  74  Tex.  657,  12  5.  W.  Rep.  832. 

4.  What  may  be  Hct  oft'  in  equity. 
—Where  the  United  States  holds  a  de- 
cree against  a  railroad  for  the  payment  of 
money,  another  company,  succeeding  to  the 
property  and  liabilities  of  the  former,  can- 
not apply  an  independent  claim  it  holds 
against  the  government,  and  which  could 
only  be  enforced  in  the  court  of  claims,  in 
payment  of  such  judgment.  Nashville  <&* 
C.  R.  Co.  v.  United  States,  10 1  U.  5.639. 

A.  being  indebted,  by  an  open  account, 
to  a  railroad  company,  the  latter  assigned 
the  debt  to  B.,  to  whom  the  company  was 
largely  indebted,  and  by  whom  suit  was 
brought  against  A.,  in  the  name  of  the  com- 
pany, and  a  judgment  obtained  thereon. 
Pending  the  suit  against  him,  A.  paid  for 
the  company  a  large  debt,  as  its  surety, 
which  debt  existed  previous  to  the  assign- 
ment, by  the  company,  to  B.  The  company 
being  insolvent  at  the  time  of  the  assign- 
ment—^#/(/,  that  A.  could  set  off,  in  equity, 
the  money  he  had  paid  for  the  company 
against  the  judgment  obtained  by  B.  Tus- 
cumbia,  C.  <&<•  D.  R.  Co.  v.  Rhodes,  8  Ala.  206. 

it  is  not  essential  to  the  proper  allowance 
of  a  legal  demand  as  a  set-off  in  equity 
against  a  judgment  in  law,  on  the  ground 
of  the  insolvency  of  the  party  in  whose 
favor  the  judgment  was  recovered,  that  the 
insolvency  should  have  occurred  subsequent 
to  the  judgment.  The  set-off  may  be  al- 
lowed irrespective  of  the  time  of  the  occur- 
rence ot  the  insolvency,  whether  before  or 
subsequent  to  the  judgment.  Galena  &*  S. 
W.  R.  Co.  V.  Ennor,  116  111.  55,  4  A^.  E. 
Rep.  762.— Explaining  Chicago,  D.  &  V. 
R.  Co.  V.  Field,  86  III.  270. 

In    answer  to  a  bill  filed  by  the  state 


against  a  railroad  company,  to  enforce  pay- 
ment of  an  annuity,  secured  by  a  mortgage, 
the  company  set  up,  by  way  of  offset  or 
discount,  the  fact  that  certain  bridges  on 
its  road  were  destroyed  by  the  mayor  and 
police  commissioners  of  Baltimore,  and 
with  the  approval  and  sanction  of  the  gov- 
ernor, and  claimed  a  large  sum  for  such 
damage  and  waste.  Held,  that  there  is  no 
principle  of  discount,  set-off,  or  recoupment, 
which  would  authorize  the  court  to  recog- 
nize such  a  claim  as  a  debt,  obligation,  or 
liability,  for  damages  liquidated  or  unliqui- 
dated.   State  V.  Northern  C.  R.  Co.,  18  Md. 

193- 

A  manager  was  employed  by  the  receiver 
of  a  railroad  mainly  to  perform  duties  which 
the  receiver  himself  should  have  attended 
to.  An  amount  was  awarded  to  the  receiver 
as  compensation  for  his  services,  and  he  was 
directed  to  pay  the  manager  a  specified  por- 
tion thereof.  He  refused  to  do  so,  claiming 
that  the  manager  was  indebted  to  him  indi- 
vidually in  a  larger  amount.  Held,  the  in- 
debtedness from  the  manager  to  the  receiver 
being  admitted,  that  a  petition  by  the  man- 
ager for  an  order  compelling  the  receiver  to 
pay  him  the  amount  specified  should  be 
dismissed  for  want  of  equity.  Gatsmer  v, 
Philadelphia  &>  A.  C.  R.  Co.,  26  Am.  &- 
Eng.  R.  Cas.  403,  39  A^.  /.  Eq.  363. 

5.  In  actions  for  price  of  tics  sold. 
— Where  a  party  under  a  contract  to  sell 
and  deliver  railroad  ties,  neglects  to  deliver 
in  time,  without  any  sufficient  excuse,  and 
damages  are  shown  in  consequence  thereof, 
a  verdict  for  the  full  price  of  the  ties,  with- 
out allowing  any  damages,  cannot  be  sus- 
tained. Havana,  R.  &•  E.  R.  Co.  v.  Walsh, 
85  ///.  58. 

6. for  wajjesof  employe.— Where 

a  company  is  sued  by  a  conductor  to  recover 
wages,  it  may  set  off  damages  to  its  cars 
caused  by  the  negligence  of  the  plaintiff; 
and,  if  the  set-off  exceeds  the  amount  of 
plaintiff's  damages,  the  company  may  take 
judgment  for  the  excess.  Mobile  &*  M.  R. 
Co.  v.  Clanton,  59  Ala.  392.  Harlan  v.  St. 
Paul,  M.  &>  M.  R.  Co.,\l  Am.  &-  Eng.  R. 
Cas.  130,  31  Minn.  427,  18  N.   IV.  Rep.  147. 

A  railway  company  maintained  an  infirm- 
ary for  treatment  of  employes  injured  in  its 
service.  Employes  were  entitled  to  the  ben- 
efit ot  this  institution  regardless  of  whether 
the  company  owed  them  wages  at  the  date 
ot  the  injury.  They  were  free  to  accept  or 
reject  the  benefits  of  this  institutit^n,  but  if 


w 


SET-OFF;  COUNTERCLAIM;  RECOUPMENT,  7,8. 


117 


they  accepted,  then  it  was  agreed  that  the 
reasonable  charges  of  treatment  should  be 
retained  out  of  wages  then  due  or  there- 
after earned  by  the  employ^.  Held,  that 
the  charges  for  treatment  in  the  infirmary 
were  a  proper  set-ofT  against  wages  due  an 
employs.  Louisville,  N.  O.  <5-  T.  R.  Co.  v. 
Kennedy,  90  Tenn.  185.  16  S.  W.  Rep.  113. 

7.  Wlmt  is  a  valid  coiiiiterclaiiii.— 
Under  Ky.  Civ.  Code,  §  126,3  counterclaim 
must  be  one  which  ordinarily  and  naturally, 
or  necessarily,  arises  out  of  the  contract 
sued  on.  Therefore,  where  a  railroad  com- 
pany sues  an  individual  to  recover  on  a 
subscription  to  stock,  lie  may  file  a  counter- 
claim for  damages  to  his  land  by  the  con- 
struction of  the  road,  under  a  contract  with 
the  company's  agent  whereby  he  was  to  have 
the  privilege  of  paying  the  subscription  by 
such  damages.  Louisville  &*  N.  R.  Co.  v. 
Thompson,  18  B.  Mon.{Ky.)  735.— Follow- 
ING  Henderson  &  N.  R.  Co.  v.  Dickerson, 
17  B.  Mon.  180. 

A  foreclosure  suit  was  commenced  by  a 
company  created  by  the  consolidation  of 
three  other  companies.  Before  the  consol- 
idation two  of  the  companies  had  created 
mortgages  to  secure  their  bonds,  which  were 
in  default  as  to  the  interest.  Defendant,  a 
trust  company,  was  the  trustee  in  one  of 
these  underlying  mortgages,  and  filed  an 
answer  in  the  nature  of  a  cross-bill,  setting 
out  all  the  matters  necessary  in  a  foreclosure 
suit,  and  prayed  for  the  usual  relief.  Held, 
that  the  matter  set  up  was  the  proper  sub- 
ject of  counterclaim  under  N.  Y.  Code  Civ. 
Pro.  §  501,  where  it  appeared  that  it  might 
go  in  some  degree  to  diminish  plaintiff's  de- 
mand. Metropolitan  Trust  Co.  v.  Totiawan- 
da  Valley  &*  C.  R.  Co.,  7  N.  Y.  S.  R.  90,  43 
Hun  521,  18  Abb.  N.  Cas.  368;  affirmed  in 
106  N.   V.  673,  mem.,  13  N.  E.  Rep.  937. 

The  requisite  of  connection  of  the  de- 
fendant's cause  of  action  with  the  subject 
of  the  plaintiff's  action  is  not  defined  or 
restricted  by  the  provision  of  the  statute. 
There  must  only  be  some  connection  and  it 
must  have  such  relation  to  and  connection 
with  the  subject  of  the  action  that  it  will  be 
just  and  equitable  that  the  controversy  be- 
tween the  parties  as  to  the  matters  alleged 
in  the  counterclaim  should  be  settled  in 
one  action  by  one  litigation.  Metropolitan 
Trust  Co.  V.  Tonawanda  Valley  &*  C.  R. 
Co.,  7  A^.  V.  S.  R.  90,  43  Hun  521,  18  Abb. 
N.  Cas.  368;  affirmed  in  106  A^.  Y.  673. 
wem.,  13  A'.  E.  Rep.  937. 


A  company  contracted  to  complete  a  road 
in  five  years  and  continuously  operate  the 
same,  in  consideration  of  an  annual  subsidy 
for  thirty-five  years  and  a  grant  of  5000 
acres  of  land  for  each  mile  of  road  com- 
pleted. After  part  of  the  road  was  com- 
pleted, part  of  the  subsidy  paid,  and  part 
of  the  land  granted,  the  company  broke  the 
contract  and  the  government  refused  fur- 
ther payments.  Held,  that  by  the  law  of 
the  colony  the  governmcit  was  entitled  to 
a  counterclaim  for  unliquidated  damages  for 
the  company's  breach  of  contract  in  not 
completing  the  line.  Neivfoundland  v. 
Newfoundland  R.  Co.,  L.  R.  13  App.  Cas. 
199. — Approving  Young  v.  Kitchin,  3  Ex. 
D.  127.  Reviewing  Watson  v.  Mid  Wales 
R.  Co.,  2  C.  P.  593 ;  In  re  Milan  Tramways 
Co.,  22  Ch.  D.  122. 

In  such  case  the  set-ofi  availed  against 
the  assignees  of  the  company,  the  claim  and 
counterclaim  having  their  origin  in  the  same 
portion  of  the  same  contract,  the  obligations 
which  gave  rise  to  them  being  closely  inter- 
twined. Newfoundland  v.  Newfoundland 
R.  Co.,  L.  R.  II  App.  Cas.  199. 

8.  What  counterclaims  are  not  en- 
forceable.— In  a  suit  against  an  '>xpress 
company  for  goods  destroyed  by  fire  through 
negligence,  a  counterclaim  growing  out  of 
plaintiff's  negligence  in  causing  the  fire 
cannot  include  attorneys'  fees  and  expenses 
in  defending  other  suits  brought  against 
defendant  by  third  parties  for  damages  sus- 
tained from  such  fire.  Pacific  Exp.  Co.  v. 
Malin,  132  U.  S.  531,  \o  Sup.  Ct.  Rep.  166. 

Where  a  railroad  company  is  sued  for 
killing  a  horse,  and  one  paragraph  of  the 
complaint  charges  the  company  with  negli- 
gence in  failing  to  fence  its  track,  and  the 
other  with  negligently  killing  the  horse, the 
company  cannot  plead  a  counterclaim  aris- 
ing from  plaintifT's  negligence  in  allowing 
his  horse  to  go  upon  the  track,  whereby  its 
cars  were  thrown  off  and  greatly  damaged. 
Such  claim  does  not  arise  out  of  plaintiff's 
cause  of  action,  within  the  meaning  of  Ind. 
Rev.  St.,  1 88 1,  §  350.  Terre  Haute  &- 1.  R. 
Co.  v.  Pierce,  19  Am.  &■•  Eng.  R.  Cas.  581, 
95  Ind.  496.— Distinguishing  Judah  v. 
Vincennes  University,  16  Ind.  56;  Grimes  v. 
Duzan,  32  Ind.  361. 

In  an  action  for  damages  for  negligence, 
a  counterclaim  for  libel  was  excluded,  on  the 
ground  of  the  inconvenience  which  would 
arise  in  trying  the  two  causes  of  action 
tdrrtlirr,  lint  leave  to  bring  an  independ- 


m 


^ 


118  SET-OFF;  COUNTERCLAIM;  RECOUPMENT,  O,  10.— SEVERANCE. 


ent  action  was  given.    McLean  v.  Hamilton 
St.  R.  Co.,  II  Ont.Pr.  193. 

9.  What  damages  maybe  proved 
by  way  of  recoupment.*  —  The  owner 
of  live  stoclc  transported  by  railroad,  when 
sued  for  the  charges  of  transportation,  may 
recoup  damages  sustained  by  reason  of  in- 
juries  to  them  through  the  carrier's  negh- 
gence.  South  &-  N.  Ala.  R.  Co.  v.  Henlein, 
56  Ala.  368,  19  Am.  Ry.  Rep.  200. 

In  an  action  by  a  railroad  company,  upon 
a  note  given  to  aid  the  road,  defendant  may 
prove  by  way  of  recoupment,  damages  aris- 
ing from  the  construction  of  the  road  across 
his  lands,  in  violation  of  an  agreement  not 
to  do  so,  made  at  the  time  of  giving  the 
note.  Br  OSS  v,  Cairo  &*  V.  R.  Co.,  9  ///. 
App.  363. 

10. and  what  may  not  be.  — 

Plaintiff  sued  to  recover  for  money  due  on 
contract  for  labor.  The  evidence  showed 
that  he  was  regularly  employed  as  a  carpen- 
ter for  defendant  company,  but  was  specially 
employed  one  night  to  watch  an  engine, 
which  he  did  so  negligently  that  the  engine 
was  damaged.  Held,  that  the  claim  of  the 
company  for  damages  to  the  engine  could 
not  be  used  as  a  counterclaim  against  plain- 
tiff's demand,  except  as  to  the  pay  for  the 
one  night.  Emery  v.  St.  Louis,  K.  6«»  A^. 
W.  R.  Co.,  77  Mo.  339. 

Goods  were  shipped  to  pass  over  two  or 
more  roads.  The  last  carrier  received  them 
and  paid  the  freight  charges  on  the  preced- 
ing roads  and  forwarded  and  delivered  the 
goods  to  the  consignees.  They  were  found 
to  be  badly  damaged,  and  the  consignees 
claimed  the  right  to  recoup  the  damages 
against  the  amount  of  freight  charges.  It 
appeared  that  the  company  was  not  asso- 
ciated with  the  preceding  carriers,  and  it 
did  not  appear  on  what  road  the  damage 
occurred.  Held,  that  the  recoupment  could 
not  be  allowed.  Knight  v.  Providence  S- 
W.  R.  Co.,  9  Am.  &*  Eng.  R.  Cas.  90,  13  ^. 
!•  572. 43  ^'»-  ^ep.  46.— Approved  in  Sa- 
vannah, F.  k  VV.  R.  Co.  V.  Harris,  26  Fla. 
148. 


ings,    see    Eminent    Domain,     1266, 
1270. 

Decree  in  foreclosure,  see  Mortgages,  214. 
Elections  of  directors,  see  Directors,  etc., 

13. 
Forfeiture  for  nonpayment  of  stock,  see  Sub« 

scriptions  to  Stock,  188. 
Leases,  inequity,  see  Equity,  22. 
Of  foreclosure  sales,  see  Mortgages,  284- 

205. 

—  verdicts,  grounds  for,  see  Trial,   196- 

109. 

Order  of  confirmation  of  report  of  commis- 
sioners, see  Eminent  Domain,  799. 

Report  of  commissioners  in  condemnation 
proceedings,  ground  for,  see  Eminent 
Domain,  802-811. 

Schemes  for  reorganization,  see  Reorganiza- 
tion, 18. 

Verdict  for  errors  in  special  findings,  see 
Death  by  Wrongful  Act,  360. 

—  of  jury  on  assessment  of  damages,  see 

Eminent  Domain,  830-841. 

—  on  appeal,  for  inadequate   danutgei ,  see 

Eminent  Domain,  928. 


SETTLEMENTS. 

Between  contractors  and  company,  conclu- 
siveness of,  see  Construction  of  Rail- 
ways, 38. 

Of  claims  by  superintendent,  see  Western  & 
A.  R.  Co.,  1. 

for  taxes,  see  Taxation,  299. 

—  engineer's  accounts,  see  Construction  of 
Railways,  62. 

Power  of  attorneys  to  make,  see  Attorneys, 
10. 

With  clients,  effect  of,  upon  attorneys'  liens, 
see  Attorneys,  19. 


SETTLERS. 

On  lands  granted  to  railroads,  rights  of,  see 

Land  Grants,  50. 
—  public  lands,  rights  of,  see  Land  Grants, 

69,  81,  90,  138;  Public  Lands,  19, 

20. 


SEVERABLE  CONTRACTS. 
What  are,  see  Contracts,  26. 


SETTING  ASIDE.  SEVERAL  LIABILITY. 

^^  4»2  *''*'*'**'"■"■  "'  Eminent  Domain,  For  negligence,  see  Negligence.  82. 

*•         .    ,  Of  both  companies  in  cases  of  collision,  see 

grounds  for,  see  Eminent  Domain.  Collisions,  6. 

X  X  T  o* 
in  Canadian  expropriation  proceed-  SEVERANCE 


•  See  also  Ciiarrrs,  80. 


Of  causes  of  artion,  sre  Actions,  13« 


SEWERS— SIDE  TRACKS. 


119 


SEWXKB. 
Rifht  of  city  to  construct,  see  Street  Rail- 
ways, 38. 

SHARES. 

Of  stock,  when  subject  to  execution,  see 
Execution,  11. 


SHERIFF. 

Fees  of,  see  Eminent  Domain,  782. 

Liability  of  company  to,  for  protection  of 
property,  see  Strikes.  7. 

Return  of  writ  on  refusal  to  levy,  see  Execu- 
tion, 16. 


SHIPMENT. 
Discrimination,  when   allowed  in  favor  of 

large,  see  Discrimination,  12,  13. 
Liability  of  carrier  for  goods  awaiting,  see 

CARRiAr.E  OF  Merchandise,  310-322. 
Selection  of  mode  of,  by  carrier,  see  Carriage 

OF  Merchandise,  46. 
Value  at  place  of,  when  measure  of  damages, 

see  Carriage  of  Merchandise,  760. 


SHIPPERS. 

Acquiescence  of,  to  overcharge,  see  Charges, 
42. 

Fraud  of,  in  concealing  kind  or  value  of 
goods,  see  Carriage  of  Merchandise, 
109-203. 

Liability  of  carrier,  where  shipment  is  de- 
layed at  request  of,  see  Carriage  op 
Merchandise,  317. 

where  goods  are  explosives,  see  Car- 
riage OF  Merchandise,  195-108. 

Must  have  knowledge  of  limitation  of  liabil- 
ity,  see  Carriage  of  Merchandise,  433- 
435. 

Negligence  or  fraud  of,  when  excuses  car- 
rier,  see  Carriage  of  Merchandise, 
180-180. 

Right  of  carrier  to  demand  charges  from,  see 
Charges,  74. 

Title  of,  cannot  be  disputed  by  carrier,  see 
Carriage  of  Merchandise,  220. 

Undue  preference  as  between,  by  carrier,  see 
Interstate  Commerce,  97. 

When  may  sue  for  failure  to  deliver,  see  Car- 
riage OF  Merchandise,  209. 


SHIPPING  AGENTS. 
Implied  powers  of.  see  Agency,  13,  14. 


SHIPPING  CONTRACTS. 
Construction  of,  see  C()ntr,\cts,  109. 


For  carriage  of  cattle,  see  Carriaob  of  Live 

Stock,  60-100. 
Generally,  see  Carriage  of   Mirchandisb, 

400-400. 


SHOPS. 

When   exempt  from  taxes,  see  Taxation, 

172. 
—  subject  to  taxation,  see  Taxation,  80. 


SHORE  FRONT. 
Remedy  for  obstructing,  see  Riparian  Rights, 

lO. 
Right  to  extend,  conflicting  rights  to,  see 

Riparian  Rights,  6,  6. 


SHUNTING. 

Assumption  of  risk  as  to,  see  Employ£s,  Inju- 
ries TO,  195. 

Duty  to  protect  employes  during,  see  Em* 
ploy£s,  Injuries  to,  167. 

Non-liability  for  negligence  of  fellow-ser- 
vants in,  see  Fellow-servants,  41. 


SICK  FUND. 
Deduction  from  wages  as  contribution  for, 
see  Relief  Associations,  2. 


SICK  PASSENGERS. 

Allowing  time  to,  for  alighting  from  train, 
see  Carriage  of  Passengers,  235. 

Care  required  from  carrier  towards,  see  Car. 
RiAGE  OF  Passengers,  145 ;  Negligence, 
14. 

Expulsion  of,  see  Ejection  of  Passengers, 
46 ;  Street  Railways,  530. 

Liability  for  injuries  to,  see  Street  Rail- 
ways, 327. 

Obligation  to  carry,  see  Carriage  of  Passbn- 
gbrs,  110»  113. 


SIDE  TRACKS. 

Assumption  of  risk  as  to  obstruction  of,  a 
question  for  jury,  see  Employes,  Injuries 
TO,  711. 

Construction  of,  under  provisions  of  charter, 
see  Charters,  67. 

Duty  of  company  as  to  safety  of,  see  Em- 
ployes, Injuries  to,  69,  70. 

Location  of,  in  city  streets,  see  Streets  and 
Highways,  150. 

Measure  of  damages  for  failure  to  maintain, 
see  Damages,  62. 

Municipal  aid  for  construction  of,  see  Munici- 
pal and  Local  Am,  69. 

Regulation  of,  by  con^missioners,  sec  Rail- 
way Commissiunkrs,  19. 


9* 


120 


SIDE   TRACKS,  1. 


Taking  land  for,  when  for  a  public  use,  see 

Eminent  Domain,  184. 
When  subject  to  execution,  see  Execution, 

12. 

1.  Authority  to  construct.*—  (i)  In 

general. — The  power  of  railroads  to  niaice 
necessary  side  tracks  means  to  make  them 
when  they  become  necessary,  otherwise  it 
would  be  the  power  lo  make  unnecessary 
side  tracks.  Such  a  power  m;iy  be  exer- 
cised when  necessary,  and  iience  is  not  ex- 
hausted by  one  exercise.  St.  Louis,  I.  M. 
&-  S.  A\  Co.  V.  Petty,  57  Ar/i.  359,  21  S.  W. 
Rep.  884. 

In  the  absence  of  clear  abuse,  the  discre- 
tioii  of  a  railroad  company  in  placing  addi- 
tional side  tracks  upon  one  side  of  its  main 
track,  ratiier  than  the  other,  will  not  be  in- 
terfered with.  St.  Louis.  I.  M.  6-  S.  R.  Co. 
V.  Petty,  57  Ark.  359,  2t  S.  W.  Rep.  884. 

The  use  of  a  siding  in  connection  with 
the  main  track,  is  incident  to  a  rigiit  of  way 
for  railroad  purposes.  It  is  a  part  of  the 
easement,  as  much  so  as  is  the  running  of 
the  trains  over  the  main  track  of  the  road. 
Ogle  V.  Philadelphia,  W.  &•  B.  R.  Co.,  3 
Houst.  (Del.)  302 ;  affirming  3  Houst.  267. 
Knight  V.  Carrollton  R.  Co.,  9  La.  Ann. 
284.— Following  New  Orleans  &  C.  R. 
Co.  w.  Second  Municipality,  i  La.  Ann.  128. 
—  Reviewed  in  Mississippi  &  T.  R.  Co.  v. 
Devaney,  42  Miss.  555,  2  Am.  Rep.  608.— 
Galveston,  If.  &•  S.  A.  R.  Co.  v.  State,  51 
Am.  &^Eng.  R.  Cas.  287,  81  Tex.  572,  17  S. 
W.  Rep.  67. 

After  railways  have  been  connected  for 
nearly  thirty  years  under  a  special  act  of 
the  legislature  providing  for  their  connec- 
t'c.  ,  in  a  city  with  the  consent  of  the 
p<  le  thereof,  the  people  having  con- 
>  L'  f  by  popular  vote  cast  within  the  year 
frl'  ...lit;  the  passage  of  the  act,  and  the 
c«'i  :.'.  r^  ')  having  been  made  within  the 
t>  ;  •  '  r  after  the  vote  was  taken,  no 
authority  can  be  derived  from  the  act  for 
holding  another  election  giving  consent  to 
the  laying  of  additional  side  tracks  or  turn- 
outs on  the  streets  of  the  city  by  one  or 
more  of  the  railway  companies.  When  the 
connection  was  completed,  with  the  side 
tracks  then  constructed,  the  power  con- 
ferred by  the  act  to  encroach  on  the  streets 
was  exhausted.  Savannah  &*  iV.  R.  Co.  v. 
Woodruff.  86  Ga.  94,  13  5.  £.  Rep.  156. 


il  ll 


•  Power  to  condemn  right  of  way  for  side 
tracks  to  private  establishments,  see  notes,  aoL, 
R.  A,  434  ;  17  Am.  &  Eno.  R.  Cas.  162. 


111.  General  Railroad  Act  requires  the  per« 
sons  incorporating  a  company  to  name  the 
places  from  and  to  which  it  is  intended  to 
construct  the  proposed  railway,  but  no  lim- 
itation is  laid  down  as  to  the  places  where 
switches,  turnouts,  or  side  tracks  shall  be 
constructed.  South  Chicago  R.  Co.  v.  Dix, 
17  Am.  *•  Eng.  R.  Cas.  157,  109///,  237. 

An  ordinance  of  a  city,  in  1865,  author- 
ized a  railroad  company  to  construct  its 
tracks  upon  certain  streets  in  the  city. 
Held,  that  after  the  adoption  of  Iowa  Code, 
§§  1321,  464,  as  amended,  the  successor  in 
interest  of  said  company,  and  its  rights  un- 
der said  ordinance,  had  no  right  to  con- 
struct switches  or  side  tracks  on  such 
streets  without  making  compensation  to  the 
abutting  lot  owners  for  injuries  resulting 
therefrom,  whether  arising  from  change  of 
grade  made  in  the  course  of  such  construc- 
tion, or  other  cause,  although,  prior  to  the 
adoption  of  said  sections,  it  may  have  con- 
structed its  main  line  of  track  through  said 
streets.  Drady  v.  Des  Moines  &»  Ft.  D.  R. 
Co.,  14  Am.  &^  Eng.  /i'.  Cas.  130,  57  /owa 
393,  10  A'.  IV.  Rep.  754.- Distinguishing 
Cleveland  &  P.  R.  Co.  v.  Speer,  56  Pa.  St. 
326. 

A  railroad  corporation  may  lay  sidetracks 
for  its  convenience  over  any  land  it  may 
own  in  fee,  or  land  of  individuals  giving 
legal  consent  thereto,  if  no  public  interest  or 
private  right  is  affected.  Bangor,  O.  &* 
M.  R.  Co.  v.  Smith,  47  Afe.  34. — QUOTED  IN 
Barre  R.  Co..z/.  Montpelier  &  W.  R.  R.  Co., 
61  Vt.  I. 

An  ordinance  authorized  a  company  to 
construct  its  main  line  through  a  city,  and 
upon  and  across  certain  streets  "  and  also 
from  time  to  time  to  construct,  operate,  and 
maintain  from  its  main  track  to  commer- 
cial and  manufacturing  establishments  and 
yards  *  •  •  such  side  tracks  and  switch 
tracks  as  such  commercial  and  industrial 
interests  may  require."  Held,  that  the  or- 
dinance was  a  sufficient  consent  on  the 
part  of  the  city  to  the  laying  of  a  switch 
track,  partly  upon  a  public  alley  and  partly 
upon  private  property.  Chicago,  B.  &*  N. 
R.  Co.  v.  Porter,  43  Am.  fi-  Eng.  R.  Cas. 
170,  43  Minn.  527,  46  N.  W.  Rep.  75. 

Whether  the  use  for  which  lands  for 
the  construction  of  a  railroad  side  track  are 
to  be  taken  is  a  public  or  private  use,  does 
not  depend  on  the  number  of  persons  who 
may  have  occasion  to  use  it ;  if  all  persona 
have  a  right  to  its  use,  it  is  a  public  use, 


!i 


SIDE   TRACKS,  2. 


Ul 


though  the  number  who  require  the  use 
may  be  small.  Chicago,  B.  <S-  N.  R.  Co.  v. 
Porter,  \l  Am.  «S-  Eng.  R.  Cas,  170, 43  Minn. 
527,  46  N.  W.  Hep.  75. 

While  lands  taken  and  appropriated  for 
right  of  way  and  side  tracks,  otherwise  than 
by  consent  of  the  owner,  cannot  exceed  two 
hundred  feet  in  width,  yet  this  does  not 
prevent  the  company  from  purchasing  with 
the  consent  of  the  owner  all  the  land  it 
may  require  for  side  tracks  and  depot 
grounds.  Burlington  &*  M,  R.  R.  Co.  v. 
Lancaster  County  Com'rs,  7  Neb.  33.— Fol- 
lowed IN  Red  Willow  County  v.  Chicago, 

B.  &  Q.  R.  Co.,  39  Am.  &  Eng.  R.  Cas.  556, 
26  Neb.  660. 

The  fact  that  the  company  did  not  obtain 
the  fee  to  the  land  crossed,  but  only  the 
consent  of  the  owners,  does  not  vary  the 
case.  Such  license  is  good  as  against  a 
third  party,  at  least  until  it  is  revoked. 
Barre  R.  Co.  v.  MontpelierSr*  W.  R.  R.  Co.. 
39  Am.  &>  Eng.  R.  Cas.  17,  61  Vt.  i,  4  L. 
R.  A.  785.  17  Atl.  Rep.  923. 

(2)  In  Pennsylvania.  —  The  grant  of  a 
right  to  construct  a  railroad  carries  with  it, 
by  necessary  implication,  the  right  to  con- 
struct all  works  and  appendages  usual  in 
the  convenient  operation  of  a  railroad. 
Sidings  are  among  such  works.  Gets's  Ap- 
peal, 3  Am.  &*  Eng.  R.  Cas.  186,  10  W.  N. 

C.  (Pa.)  453. 

The  Philadelphia  &  Reading  R.  Co.,  by 
virtue  of  Pa.  General  Railroad  Law  of  Feb. 
19,  1849,  and  of  the  act  of  April  13,  1846, 
§  17,  extended  to  said  company  by  the  act 
of  April  14,  1864,  is  authorized  to  construct 
sidings  leading  to  manufacturing  or  mining 
establishments  held  by  private  owners,  and 
for  this  purpose  may  take,  by  virtue  of  the 
delegated  power  of  eminent  domain  in  it 
reposed,  the  interjacent  lands  belonging  to 
other  parties.  Getz's  Appeal,  3  Am.  &*  Eng. 
R.  Cas.  186,  10  Py.  N.  C.  (Pa.)  453. 

The  right  of  running  sidings  to  such  pri- 
vate  establishments,  and  of  taking  the  nec- 
essary land  for  the  purpose,  is  clearly  within 
the  constitutional  power  of  the  legislature 
to  confer,  because  the  public  interest  is 
thereby  subserved  by  reason  of  the  increased 
facilities  afforded  for  developing  the  re- 
sources of  the  state  and  promoting  the  gen- 
eral wealth  and  prosperity  of  the  commu- 
nity. Gets's  Appeal,  3  Am.  &*  Eng.  R,  Cas. 
186. 10  IV.  N.  C.  (Pa.)  453. 

An  ordinance  authorized  the  construction 
gf  "  a  single-track  railroad  for  ordinary  rail- 


road purposes  with  suitable  and  necessary 
turnouts  into  and  upon  the  warehouses  and 
wharves."  Subsequently,  certain  abutting 
landowners  brought  suit  against  the  com- 
pany, and  a  decree  was  entered  by  consent 
which  stipulated  that  the  company  should 
lay  down  "  a  single  track  only,  without  sid- 
ings for  standing  or  passing  trains,"  and 
should  "  at  no  time  lay  down  or  construct 
any  such  switches  or  turnouts."  Held,  that 
the  decree  only  prohibited  the  construction 
of  switches  or  turnouts  for  standing  or  pass- 
ing trains,  and  did  not  forbid  the  company 
from  constructing  a  turnout  connecting  its 
track  with  a  warehouse.  Philadelphia  v. 
River  Front  R.  Co.,  43  Am.  &*  Eng.  R.  Cas. 
167,  133  Pa.  St.  134,  19  Atl.  Rep.  356. 

When  a  railway  company  has  constructed 
its  road  within  the  period  limited  by  law, 
it  may  subsequently  construct,  from  time  to 
time,  such  switches  or  sidings  as  may  be 
necessary  for  the  handling  of  its  business, 
and  the  operation  of  its  road.  Pottsville  v. 
People's  R.  Co.,  148  Pa.  St.  175.  23  Atl.  Rep. 
900. 

The  right  to  construct  such  switches  or 
sidings  is  not  forfeited  or  lost  because  not 
exercised  by  the  company  within  the  period 
limited  for  the  location  and  construction  of 
its  road.  Pottsville  v.  People's  R.  Co.,  148 
Pa.  St.  175,  23  Atl.  Rep.  900. 

2.  Duty  to  construct,  or  permit 
others  to  do  so.— (i)  In  Illinois. — By  the 
common  law,  railroad  companies  cannot  be 
compelled  to  permit  individuals  to  connect 
side  tracks  of  their  own  with  the  tracks 
of  the  companies,  and  where  it  is  sought 
to  compel  a  railroad  to  permit  such  con- 
nection, upon  the  ground  of  custom  among 
the  companies  whose  lines  concentrate  at 
the  place  indicated,  the  custom  must  be 
made  clearly  to  appear,  and  to  have  existed 
so  long  as  to  have  the  force  of  law.  People 
V.  Chicago  &•  N.  W.  R.  Co.,  57  ///.  436,  10 
Am.  Ry.  Rep.  457.— Reviewed  in  Chicago, 
B.  &  Q.  R.  Co.  V.  Hoyt,  i  111.  App.  374. 

The  owner  of  a  lot,  having  erected  a  grain 
elevator  thereon,  was  permitted,  by  contract 
with  a  railroad,  to  connect  a  side  track,  ex- 
tending from  his  elevator  to  the  company's 
line,  with  its  track.  So  far  as  appeared,  the 
contract  was  purely  personal, and  in  noway 
attached  to  the  realty.  Held,  that  a  subse- 
quent lessee  of  the  elevator  did  not  succeed 
to  any  of  the  rights  of  his  lessor,  in  respect 
to  such  contract.  People  v.  Chicago  &•  N, 
W.  R.  Co.,  57  ///.436,  10  Am.  Ry.  Rep.  457 


SIDE  TRACKS,  2. 


%■. 


Distinguished  in  State  ex  rel.  v.  Missouri 
Pac.  R.  Co.,  29  Neb.  550. 

Railroad  traci<s  laid  on  streets  of  a  city, 
connected  with  existing  railroads,  and  ex- 
tending to  public  warehouses,  malt  houses, 
or  manufacturing  establishments,  or  to  pub- 
lic wharves  and  landings,  are  in  their  nature 
public  and  for  the  public  good,  and  ail  rail- 
road companies  are  required  by  law  to  per- 
mit such  connections  to  be  made  with  their 
tracks.  Chicago  D.  <S-  C.  Co.  v.  Garrity, 
1 1  s  ///.  1 55, 3  N.  E.  Rep.  448.— Distinguish- 
ing Attorney-General  v.  Chicago  &  E.  R. 
Co.,  112  111.  520. 

By  111.  Const,  art.  13,  §  5.  it  is  made  the 
duty  of  railroad  companies  to  permit  con- 
nections to  be  made  with  their  tracks,  so 
that  any  public  warehouse,  coal  bank,  or 
coal  yard  may  be  reached  by  the  cars  on 
their  roads.  The  command  to  allow  such 
connection  is  imperative.  Chicago  &•  A.  R. 
Co.  V.  Suffern,  38  Am.&'Eng.  R.  Cas.  508, 
129  ///.  274.  21  N.  E.  Rep.  824;  affirming 
27  ///.  App.  404. 

When  the  constitution  enjoins  it  as  a  duty 
upon  a  railroad  company  to  permit  a  con- 
nection between  its  tracks  and  any  coal 
mine,  the  right  is  impliedly  conferred  upon 
the  owner  of  such  coal  mine  to  call  upon 
the  company  to  grant  such  permission,  and 
to  continue  it  wiien  once  granted.  Chicago 
&*  A.  R.  Co.  V.  Suffern,  38  Am.  &*  Eng.  R. 
Cas.  508,  129  ///.  274,  21  A^.  E.  Rep.  824; 
affirming  27  ///.  App.  404. 

Should  a  mine  owner  make  an  improper 
use  of  a  switch  or  side  track  to  a  mine,  so 
as  to  injure  in  any  way  the  railway  com- 
pany allowing  the  connection,  the  courts  will 
furnish  the  company  a  remedy  for  the 
wrong.  But  this  will  not  authorize  the 
company  to  take  the  law  into  its  own  hands, 
and  refuse  to  do  what  the  constitution  re- 
quires it  to  do — or  in  other  words,  to  cut 
off  the  connections  of  such  switch  with  its 
tracks.  Chicago  &•  A.  R.  Co.  v.  Suffern,  38 
Am.  S*  Eng.  R.  Cas.  508, 129  ///.  274.  21  A'^. 
E.  Rep.  824 ;  affirming  27  ///.  App.  404. 

Where  a  railroad  company  lays  a  side 
track,  under  a  verbal  agreement,  upon  its 
own  land,  for  the  benefit  of  an  individual, 
and  at  his  expense,  it  may  revoke  the  right 
to  continue  the  track  at  any  time  ;  and  the 
question  whether  it  has  presented  a  bill  for 
the  cost  of  the  track,  or  the  work  has  been 
paid  for,  is  immaterial.  Lake  Shore  &*  M. 
S.  R.  Co.  V.  ffoffert,  40  ///.  App.  631. 
(2)  In  England.— Vfhets  it  is  necessary 


that  a  railway  company  make  a  siding  to 
accommodate  local  traffic,  lands  within  the 
limits  of  deviation  in  the  deposited  plans, 
but  not  actually  taken  in  the  first  instance, 
may  be  taken  for  the  purpose.  /«  re  York- 
shire D.  &•  G.  R.  Co.,  I  /ur.  N.  S.  975. 

An  agreement  between  a  railway  com- 
pany and  a  landowner  to  construct  and 
maintain  a  siding  together  with  all  neces- 
sary approaches  for  public  use,  for  the 
reception  and  delivery  of  goods,  does  not 
bind  the  company  to  erect  sheds  or  to  k'^ep 
a  servant  in  attendance  ;  but  the  company 
is  obliged  to  construct  a  proper  siding  with 
approaches  and  a  platform  for  loading  and 
imloading.  Lytton  v.  Grei%t  Northern  R. 
Co.,  2  Kay  &»J.  394,  zjur.  N.  S.  436. 

An  agreement  between  a  railway  com- 
pany and  a  landowner  for  the  construction 
of  a  siding  upon  the  owner's  land,  and  for 
his  use,  and  to  his  reasonable  satisfaction,  is 
not  incapable  of  being  enforced  by  a  court 
of  equity.  Greene  v.  West  Cheshire  R.  Co., 
L.  R.  13  Eq.  44.  41  L.  J.  Ch.  17,  25  L.  T. 
409,  20  W.  R.  54. 

The  obligation  of  an  act  of  a  railway 
company,  binding  it  to  make  a  siding  on  a 
specified  field  of  a  landowner,  is  not  broken, 
although  the  company  took  for  other  pur- 
poses so  much  of  the  specified  field  as  not 
to  leave  any  to  furnish  access  from  the  sid- 
ing to  an  adjoining  road  without  passing 
over  the  land  taken,  or  outside  of  the  speci- 
fied field.  Dffwling  v.  Pontypool,  C.  &*  N. 
R.  Co.,  43  L.  J.  Ch.  761,  L.R.  18  Eq.  714. 

A  connection  between  an  adjoining  own- 
er's works  and  a  railway  by  means  of  a 
siding  is  a  reasonable  facility,  within  the 
meaning  of  the  Railway  and  Canal  Traffic 
Act,  1854,  §  2,  which  the  railway  commis- 
sioners have  jurisdiction  to  order.  Beeston 
Brewery  Co.  v.  Midland  R.  Co.,  5  Ry.  &*  C. 
T.  Cas.  53. 

The  fact  that  such  connections  are  granted 
to  other  traders  at  other  places  on  the  com- 
pany's line  and  refused  to  the  applicant  will, 
if  the  circumstances  are  shown  to  be  the 
same,  constitute  an  undue  and  unreasonable 
prejudice  within  the  meaning  of  that  sec- 
tion. Beeston  Brewery  Co,  v.  Mid/and  R. 
Co.,  5  Ry.  6-  C.  T.  Cas.  53. 

The  "  continuance  "  of  a  siding  which  has 
been  constructed  for  the  use  of  a  particular 
individual  may  be  a  reasonable  facility  to 
which  that  individual  is  entitled,  under  the 
Railway  and  Canal  Traffic  Act  of  1854,  §  2, 
so  that  the  taking  up  of  such  a  siding  by  the 


SIDE  TRACKS,  2. 


188 


railway  company,  while  competitors  in  trade 
of  the  individual  in  question  were  not  de- 
prived of  a  similar  facility,  would  constitue 
an  undue  prejudice  within  the  meaning  of 
that  section.  Beeston  Brewery  Co.  v.  Mid- 
land R.  Co.,  5  Ry.  <S-  C.  T.  Cas.  53. 

The  siding  having  been  constructed  under 
an  agreement  between  the  railway  company 
and  complainant,  the  railway  commissioners 
had  no  jurisdiction  in  the  matter.  Beeston 
Brewery  Co.  v  Midland  K.  Co.,  5  Ry.  &»  C. 
T.  Cas.  S3- 

The  onus  of  proving  that  the  facility  is 
given  under  like  circumstances  is  upon  the 
person  complaining  that  he  is  unduly  prej- 
udiced. Bees/on  Brewery  Co.  v.  Midland  R. 
Co.,  S  Ry.  <S-  C.  T.  Cas.  53. 

Upon  complaint  that  a  railway  company 
had  taken  up  portions  of  a  private  siding,  it 
appeared  that  such  siding  was  constructed 
under  an  agreement  giving  the  company 
tiie  right  to  terminate  it  at  any  time  on 
tliree  months'  notice  and,  at  the  expiry  of 
such  notice,  to  take  up  the  rails,  etc.,  that 
the  sole  object  of  the  company  was  to  com- 
pel the  applicants  to  pay  station  rates,  and 
that  if  the  applicants  would  consent  to  pay 
such  rates  they  might  have  the  siding  re- 
stored. The  applicants  alleged  that  by  the 
refusal  of  the  company  to  continue  the  sid- 
ing, it  failed  to  afford  all  reasonable  facili- 
ties for  tht  receiving,  forwarding,  and  de- 
livery of  the  applicants'  traffic.  Held,  that 
the  applicants  were  entitled  to  be  given 
siding  accommodation  as  before,  but  that, 
under  the  circumstances,  the  company 
might  require  that  before  it  gave  such  ac- 
commodation there  should  be  an  agreement 
which,  besides  having  such  terms  as  are  the 
common  form  of  siding  agreements,  should 
provide  that  the  applicants  should  pay  the 
station  rates  for  the  time  being,  without  re- 
bate or  deduction,  assuming  those  rates  to 
be  in  themselves  unobjectionable.  Girardot 
V.  Midland  R.  Co.,  5  Ry.  6-  C.  T.  Cas.  do. 

Section  2  of  the  Railway  and  Canal  Traffic 
Act,  1854,  is  as  much  applicable  to  a  siding, 
both  as  to  construction  and  user  as  to  any 
other  means  of  affording  facilities  or  con- 
veniences to  traffic,  and  if  a  company  has 
siding  agreements  with  traders  with  whom 
an  applicant  competes,  the  existence  of 
these  agreements  may  furnish  a  ground  for 
a  complaint  of  undue  preference  or  prej- 
udice, and  may  make  it  necessary  for  the 
company  if  it  continues  to  give  sidings  to 
others,  to  put  down  also  a  siding  for  the 


applicant,  so  that  all  may  be  treated  alike. 
Girardot  v.  Midland  R.  Co.,  5  Ry.  6-  C.  T. 
Cas.  60. 

Apart  from  the  question  of  undue  prefer- 
ence, if  the  particular  siding  was  claimed 
merely  on  the  ground  of  due  facility,  the 
company  would  have  a  good  defense  to  the 
claim  in  its  statement  that  it  gave  due 
facilities  for  all  traffic  at  its  general  goods 
station,  and  that  it  rests  with  it  to  say  at 
what  points  at  that  terminus  it  will  receive 
or  deliver  traffic  of  which  it  is  the  carrier, 
and  that  even  if  due  facilities  were  not 
given,  it  would  more  likely  be  a  case  for 
an  injunction  in  general  terms  to  make 
proper  arrangements  than  for  an  order  to 
execute  any  specific  work,  such  as  a  private 
siding.  Girardot  v.  Midland  R.  Co.,  5  Ry. 
6-  C.  T.  Cas.  60. 

A  siding  constructed  under  an  agreement 
with  a  railway  company  for  the  private  use 
of  a  trader  is  the  creature  of  an  agreement 
into  which  the  commissioners  have  no  power 
to  inquire,  and  which  they  have  no  jurisdic- 
tion to  enforce.  A  railway  company  affords 
all  reasonable  facility  for  the  receiving,  for- 
warding, and  delivering  of  traffic,  as  pro- 
vided for  in  section  2  of  the  Railway  and 
Canal  Traffic  Act,  1854,  when  it  carries 
such  traffic  into  its  public  station  and  de- 
livers it  there  to  the  consignee,  and  the 
commissioners  have  no  power  to  require 
a  railway  company  to  lay  down,  or  to  re- 
store, a  siding  or  branch  railway  for  an 
adjoining  landowner,  even  though  he  may 
be  suffering  prejudice  or  disadvantage  by 
reason  of  the  enjoyment  of  that  accommo- 
dation by  others.  Girardot  v.  Midland  R. 
Co.,  5  Ry.  <S-  C.  T.  Cas.  60. 

Where  the  existence  of  a  siding  affords 
great  facilities  for  receiving  and  delivery 
of  traffic,  and  the  railway  company  is  not 
required  to  do  any  work  or  expend  any 
money,  but  merely  to  permit  a  connection 
to  be  made  with  its  line  by  and  at  the  ex- 
pense of  the  siding  owners,  it  might  well 
be  that  the  commissioners  have  jurisdiction 
to  order  the  railway  company  to  permit 
such  a  siding  to  be  put  in,  although  the 
commissioners  would  have  no  jurisdiction 
to  order  it  to  make  it,  and  further,  al- 
though the  commissioners  could  not  order 
the  railway  company  to  work  such  a  siding 
itself,  it  might  be  within  the  commissioners' 
jurisdiction  to  direct  the  railway  company 
to  give  proper  facilities  for  its  working  by 
the  owners  in  such  cases,  on  such  terms  as 


124 


SIDE  TRACKS,  3,4. 


I  *i 


fi 

h! 


m 


if 


4 


might  be  reasonable.    Girardot  v.  Midland 
A'.  Ok,  S  /fjf.  &*  C.  T.  Cas.  6o. 

a.  Enforcement  of  the  duty  to  con- 
Htnict.— Where  a  company  has  permitted 
tlie  owner  of  a  coal  mine  to  build  a  side 
track  connecting  its  main  track  with  the 
mine,  and  continues  for  years  to  furnish 
cars  to  haul  coal  from  the  mine  over  its 
line,  such  side  track  must  be  considered  as 
a  part  of  its  line ;  and  if  it  disconnects  such 
side  track,  it  may,  by  mandamus,  be  com- 
pelled to  restore  such  connection.  Chicago 
6-  A.  Ji.  Co.  V.  Suffern,  38  Am.  Sf  Eng,  R. 
Cas.  508,  129  ///.  274,  21  A'.  E.  Rep.  824; 
affirming  27  ///.  App.  404. 

When  the  side  track  was  first  laid,  the  re- 
spondent may  have  had  the  right  to  say  how 
it  should  be  laid.  It  may  have  then  been 
vested  with  such  discretionary  power,  as 
that  it  was  authorized  to  direct  in  what  par- 
ticular manner  the  connection  should  be 
made  with  its  main  track.  But  its  discre- 
tion in  this  regard  was  exhausted  after  the 
completion  of  the  switch,  and  its  use  with- 
out objection  for  a  number  of  years.  Chi- 
cago &•  A.  R.  Co.  V.  Suffern,  38  Am.  <S-» 
Eng.  R.  Cas.  508,  129  ///.  274,  21  A^.  E. 
Rep.  824;  affirming  27  ///.  App.  404.— 
Quoting  People  v.  Louisville  &  N.  R.  Co., 
120  III.  48. 

Specific  performance  will  not  be  decreed 
of  an  agreement  by  a  railway  company  with 
a  landowner  to  construct  a  siding  and  ap- 
proaches without  decreeing  that  the  com- 
pany maintain  them  when  made.  Lyiton  v. 
Great  Northern  R.  Co.,  2  Kay  &*J.  394,  2 
Jur.  N.  S.  436. 

Where  a  railway  company  as  compensa- 
tion for  injury  to  a  mill  constructs  a  siding 
from  such  mill  to  its  line  and  subsequently 
takes  it  up  on  account  of  the  mill  owner 
not  using  it,  but  agrees  to  replace  it  when- 
ever  required,  the  non-user  of  the  siding 
and  the  expenses  caused  to  the  company 
thereby,  under  the  regulations  of  the  board 
of  trade,  are  not  a  defense  to  an  action  for 
specific  performance  of  the  agreement  to 
replace  the  siding,  and  the  company  is  not 
entitled  to  any  indemnity  against  those  ex- 
penses before  replacing  the  siding.  Todd 
V.  Midland  G.  W.  R.  Co.,  9  L.  R.,  Jr.  85. 

4.  Rights  and  liabilities  incident 
to  their  use  by  the  company.— (i)  In 
general. — The  rule  of  law  that  a  railroad 
track  is  in  itself  a  warning  of  danger  ap- 
plies as  well  to  a  side  track  as  to  a  main  line. 
Mynning  v.  Detroit,  L.  6-  A'.  R.  Co.,  23  Am. 


&*  Eng.  R.  Cas.  317,  59  Mich.  257,  26  N. 
W.  Rep.  514. 

A  switch  track  leading  to  and  terminating 
at  certain  manufacturing  establishments  is 
not  devoted  to  a  private  use  when  it  forms 
part  of  a  system  of  track  belonging  to  a 
general  enterprise  of  maintaining  and  op- 
erating a  railroad  for  public  use,  and  all 
persons  upon  such  switch  track  are  entitled 
to  use  it  for  the  shipment  of  freight.  Chi- 
cago,  P.  &•  N.  R,  Co.  V.  Porter,  43  Am.  &^ 
Eng.  R.  Cas.  170,  43  Minn.  527,  46  A''.  W. 
Rep.  75. 

Where  a  railroad  company,  with  the  con- 
sent of  the  landowners,  builds  side  tracks  to 
granite  yards  near  its  depot  for  the  accom- 
modation and  with  the  concurrence  of  the 
owners,  such  tracks  become  a  part  of  its 
railroad,  and  the  company  is  under  the 
same  obligations  and  acquires  the  same 
rights  with  reference  thereto  as  in  case  of 
its  main  line.  Bar  re  R.  Co.  v.  Montpelier 
<S-  W.  R.  R.  Co.,  39  Am.  &-  Eng.  R.  Cas.  17, 
61  Vt.\,i,  L.  R.  A.  785,  17  Atl.  Rep.  923.— 
Quoting  Bangor,  O.  &  M.  R.  Co.  v.  Smith, 
47  Me.  46. 

(2)  Leaving  cars  on. — If,  after  an  avenue 
has  been  laid  out  across  a  railroad  and  dedi- 
cated to  public  use,  the  company  raises  the 
grade  of  it  in  the  avenue  and  raises  em- 
bankments sloping  down'vard  from  the 
road  into  the  avenue,  to  facilitate  the  cross- 
ing of  the  road  by  vehicles,  and  consents  to 
their  crossing  the  road  when  using  the 
avenue,  it  will  not  amount  to  such  a  recog- 
nition or  acknowledgment  that  the  avenue 
is  a  public  highway,  or  to  such  an  acquies- 
cence, concurrence,  or  co-operation  on  its 
part  in  the  dedication  of  it  to  the  uses  of 
the  public,  as  will  operate  as  a  waiver  of  its 
right  to  keep  cars  standing  on  a  siding 
partly  within  the  limits  of  the  avenue,  and 
so  near  as  to  frighten  horses  crossing  the 
railroad,  or  estop  it  from  denying  the  right 
of  the  public  to  use  that,  as  well  as  all 
other  parts  of  the  avenue,  as  a  common 
highway.  Ogle  v,  Philadelphia,  JV.  <S-  B. 
R.  Co.,  3  Houst.  (Del.)  302;  affirming  3 
Houst.  267. 

A  company  has  a  right  to  place  its  cars 
on  its  side  tracks,  and  to  allow  them  to 
stand  there  for  such  time  as  the  exigency  of 
its  business  may  require.  Therefore,  where 
a  company  is  sued  for  causing  death  at  a 
public  crossing,  it  is  error  to  instruct  the 
jury  that  it  was  negligence  in  the  company 
to  permit  its  cars  to  stand  on  a  side  track 


i_. 


SIDE   TRACKS,  4. 


186 


so  as  materially  to  obstruct  the  view  of  ap- 
proaching trains,  by  persons  about  to  cross 
the  track.  PVainsA.  St.  L.  <&*  P.  R.  Co.  v. 
Hicks,  13  ///.  App.  407.— Quoting  Gar- 
land V.  Chicago  &  N.  W.  R.  Co..  8  III.  App. 

571. 

Plaintiff  claimed  special  damage  caused 
by  the  occupation  of  a  siding  as  a  stand  for 
cars,  cutting  off  access  to  his  lots,  etc.,  and 
an  injunction  was  asked  restniining  defend- 
ant from  the  use  of  the  siding  for  its  cars. 
The  court  impaneled  a  jury  to  assess  the 
damages,  reserving  the  question  of  law.  The 
jury  were  instructed  that  in  assessing  the 
damages  they  were  to  assume  that  the  siding 
was  constructed  without  lawful  right,  and 
to  take  into  consideration  the  annoyance 
plaintiff  and  his  family  had  suffered.  This 
was  excepted  to  on  the  ground  that  the 
road  was  authorized  by  the  common  coun- 
cil of  the  city.  The  court  subsequently  di- 
rected judgment  for  the  damages  assessed 
and  for  an  injunction  restraining  the  use  of 
the  siding  as  a  stand  for  cars,  having  de- 
cided against  plaintiff  on  the  issue  as  to  the 
lawfulness  of  the  siding,  and  basing  its  de- 
cision on  the  ground  of  unreasonable  use. 
Held,  that  the  charge  was  erroneous,  as 
plaintiff  was  only  entitled  to  the  special 
damages  caused  by  the  improper  use  of  the 
siding;  and  tiiat  defendant  was  entitled  to 
a  new  trial.  Mahady  v.  Bushwick  R.  Co., 
14  Am.  <S->  Eng.  R.  Cas.  142,  91  A'.  V,  148, 
43  Am.  Rep.  661. 

Leaving  cars  standing  on  a  side  track  is 
not  of  itself  negligence;  certainly  it  is  not 
when  the  cars  are  not  in  the  way  of  trains 
passing  on  the  main  track.  Grant  v.  Raleigh 
&>  G.  R.  Co.,  108  A'.  Car.  462,  13  5.  £•.  Rep. 
209. 

(3)  Injuries  caused  by  moving  cars  on. — 
A  railroad  company  running  cars  on  a  pri- 
vate track,  to  be  there  unloaded  by  servants 
of  a  mill  owner,  is  bound  to  use  ordinary 
care  to  prevent  injury  to  such  servants. 
Pennsylvania  Co.  v.  Backes,  133  ///.  255,  24 
A^.  E.  Rep.  563 ;  affirming  35  ///.  App.  375. 

When  a  railroad  company  puts  loaded 
cars  upon  a  side  track  for  the  purpose  of 
being  unloaded  by  the  owners  of  the  freight, 
and  such  owners,  their  agents  or  servants, 
with  the  express  or  implied  consent  of  the 
company,  proceed  to  remove  the  freight, 
the  company  in  such  case  has  no  right, 
without  special  notice  and  warning,  to  run 
or  back  a  train  in  upon  the  same  track 
while  the  cars  are  being  unloaded.    Gessley 


v.  Missouri  Pac.  R.  Co.,  32  Mo.  App.  413.— 
DiSTiNGiJiSHEO  IN  Harris  v,  Missouri  Pac. 
R.  Co.,  40  Mo.  App.  21^.— Chicago  &*  N. 
W.  R.  Co.  v.  Goebel,  119  ///.  515.  10  A^.  E. 
Rep.  369;  affirming  20  III.  App.  163. 

A  company  negligently  left  a  side  track 
in  a  defective  condition,  and  the  cars  of  a 
backing  train  left  it  and  ran  against  a  dwell- 
ing house,  producing  such  a  shock  to  a  fe- 
male inmate  as  to  produce  serious  sickness 
and  injury.  Held,  that  the  company  was 
liable.  Chicago  &-  N.  W.  R.  Co.  v.  Huner- 
berg,  16  ///.  App.  387.— Quoting  Vanden- 
burgh  V.  Truax,  4  Den.  (N.  Y.)  465. 

A  railway  company  having  permission  to 
use  the  side  track  of  another  company  will 
be  liable  for  an  injury  to  a  person  on  the 
side  track,  unloading  cars  belonging  to  the 
company  owning  the  side  track,  which  is 
caused  by  the  negligence  of  the  company  so 
using  the  side  track  ;  and  this  is  so  though 
the  usual  signal  was  given  that  the  train 
was  about  to  be  switched  to  the  side  track, 
if  it  does  not  also  appear  that  such  further 
reasonable  precautions  and  warnings  jvere 
adopted  as  the  nature  of  the  case  might 
require.  New  Orleans,  J.  &*  G.  N.  R.  Co. 
V.  Bailey,  40  Miss,  395.  —Criticised  in 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Scurr,  59 
Miss.  456.  Quoted  in  Atlantic  &  G.  W.  R. 
Co.  V.  Dunn,  19  Ohio  St.  162.  Reviewed 
IN  Memphis  &  C.  R.  Co.  v.  Whi;  44 

Miss.  466. 

Defendant  company  contracted  ...th  a 
coal  company  to  construct  and  maintain  in 
proper  order  a  side  track,  and  to  run  coal 
over  it  for  transferring  to  boats.  Plaintiff's 
barge  was  awaiting  a  load  of  coal,  and 
through  some  defect  in  the  side  track  a  car 
left  the  track  near  the  end  and  fell  on  the 
barge  and  injured  it.  It  was  contended  by 
defendant  that  the  accident  was  due  to  the 
negligence  of  the  coal  company  in  not  main- 
taining the  side  track  in  proper  order,  and 
that  it  alone  was  liable.  Held,  that  the  run- 
ning of  the  cars  was  the  proximate  cause  of 
the  injury  ;  therefore,  defendant  was  liable. 
Fawcett  v.  Pittsburg,  C.  &*  St.  L.  R.  Co.,\^ 
Am.  &*  Eng.  R.  Cas.  i,  24  IV.  Va.  755. 

A  company  erected  a  siding,  where  there 
was  no  station  nor  highway  crossing,  for  the 
purpose  of  loading  lumber  from  a  sawmill. 
The  deceased  was  at  the  place  with  a  team 
for  the  purpose  of  taking  away  lumber  when 
a  train  came  through  a  cut  and  frightened 
his  team,  and  in  his  effort  to  control  it  he 
was  dragged  on  the  track  and  killed.    Held^ 


126 


SIDE   TRACKS,  5,  C—SIDEWALKS. 


fii  '-.i 


that  the  company  was  uiuler  no  special  duty 
to  ring  a  bell  or  sound  a  whistle  in  approach- 
ing, or  in  passing,  the  siding.  Ntw  Brum- 
wick  R.  Co.  V.  Vanwart,  17  Can.  Sup.  Ct. 
35.— DiSTiNOUiSHiNoRosenbergerv.  Grand 
Trunk  R.  Co.,  8  Ont.  App.  482,  9  Can.  Sup. 
Ct. 311.  QuoriNO  Wakclin  v.  London  &  S. 
W.  R.  Co.,  12  App.  Cas.  41.  Rf.vikwing 
Vanwart  V.  New  Brunswick  R.  Co.,  27  New 
Brun.  59;  Snecsby  v.  Lancashire  &  Y.  R. 
Co..  L.  R.  9  0-  »•  263.  I  Q.  B.  D.  42 ; 
Victorian  R.  Com'rs  v.  Coultas,  13  App. 
Cas.  222 ;  Simkin  v.  London  &  N.  W.  R. 
Co..  21  Q.  B.  D.  453- 

ft.  Riglits  and  liabiliticH  of  third 
poFMoiiH  iiHiiii;  Hide  tracks. —  A  gas 
company  owned  a  side  track  near  its  works 
and  employed  a  third  parly  to  unload  coal 
for  its  use  from  a  car  standing  on  such  side 
track,  who  negligently  left  the  car,  when 
unloaded,  so  near  the  main  track  that  a 
passing  train  collided  therewith.  HeU,  that 
both  the  gas  company  and  the  person  so 
employed  by  it  were  jointly  liable  to  the 
railroad  company  for  the  damage ;  and  that 
the  gas  company  cannot  avoid  liability  by 
showing  that  leaving  the  car  too  near  the 
track  was  an  honest  mistake  of  such  person. 
Montgomery  &*  E.  K.  Co.  v.  Chambers,  79 
Ala.  338. 

A  private  switch  from  a  railroad  to  coal 
lands,  which  is  not  owned  by  the  railway 
company,  but  by  individuals  for  their  own 
private  use,  is  not  a  public  highway,  within 
the  meaning  of  III.  Const,  art.  11,  §  12,  and, 
therefore,  is  not  free  to  all  persons  for  trans- 
portation. That  section  applies  only  to  pub- 
lic railroads.      Koelle  v.  Knecht,  99  ///.  396. 

Proof  that  a  switch  track  in  a  coal  mine 
was  built  upon  a  grade  does  not  of  itself 
tend  to  establish  negligence  on  the  part  of 
the  proprietor  of  the  mine  in  so  building  it, 
for  it  may  not  have  been  possible  to  build 
it  otherwise;  and  an  instruction  in  this  case, 
based  on  a  contrary  theory,  was  erroneous. 
Heath  v.  Whitebreast  C.  <S-  M.  Co.,  6$  Iowa 
73f,  23  A^.  IV.  Rep.  148. 

A  switch  was  built  by  a  railway  company 
for  the  joint  convenience  and  use  of  it 
and  a  mining  company,  under  an  agreement 
which  expressly  excepted  a  certain  part 
from  the  use  of  the  mining  company.  The 
assigns  of  the  mining  company  claim  the 
right  to  use  such  excepted  part.  Held:  (i) 
that  a  mere  use  by  the  permission  of  the 
railroad  company  conferred  no  right;  (a) 
that  such  switrh  is  not  "a  public  highway," 


within  the  meaning  of  the  charter  of  the 
railroad  company ;  (3)  t.iat  the  fact  that 
the  railway  company  built  such  switch  with- 
out legislative  authority  docs  not  give  the 
assigns  the  right  to  use  it.  Coe  v.  New 
Jersey  Midland  R.  Co.,  28  N.J.  Eq.  100,  14 
Am.  Ry,  Rep.  171  affirming  28  A'.  /.  Eq, 

593- 
The  owner  oi   a  lot  laid  a  side  track 

thereon  for  hio  own  use  and  connectc<l  it 

by  a  switch  to  a  regular  railroad.    Held, 

that  an  agreement  to  maintain  a  switch 

permanently  could  not  be  inferred  from  the 

maintenance  and  use  thereof  for  seventeen 

years,  and  from  the  receipt  by  the  company 

of  the  cost  of  mending  the  siding  and  the 

expense  of    the   castings  for   the  switch. 

Heyl  V.  Philadelphia,  W.  **  B.  R.  Co.,  Si 

Pa.  St.  469. 

Where  a  person  has  acquired  a  perpetual 

right  to  use  a  siding  connecting  a  foundry 

with  a  railway,  he  cannot  be  required  by 

the  company  to  contribute  to  the  expense 

of  a  new  junction   apparatus  required  by 

the  board  of  trade,  and  is  entitled  to  an 

injunction  restraining  the  company,  on  his 

refusal  to  pay  such  expense,  from  taking  up 

the  junction  points.     Woodruff  v.  Brecon 

6-  M.   T.  J.  R.  Co.,  L.  R.  28  Ch.  D.  190,  54 

L.  J.  Ch.  620,  5  Ry.  &»  C.  T.  Cas.  ix,  52  L. 

T.  69,  33  W.  R.  125 ;  affirming  54  L.  J.  Ch. 

D.  29,  51  £.  r.  536,  33  W.  R.  95. 

0.  Injuries  to  employes. — See  Ragon 
v.  Toledo,  A.  A.  &*  N.  M.  R.  Co.,  91  Mich. 
379,  51  A^.  W.  Rep.  1004.  Finnell  v.  Dela- 
ware, L.  &*  fV.  R.  Co.,  129  N.  Y.  669,  29  A'. 

E.  Rep.  825,  3  Silv.  App.  643,  42  N.  Y.  S. 
R.  354;  reversing  36  A'^.  Y.  S.  R.  1020. 
Pennsylvania  Co.  v.  McCormack,  53  Am.  &* 
Eng.  R.  Cas.  107,  131  Ind.  250,  30  N.  E. 
Rep.  27.  Atchison,  T.  *•  S.  F.  R.  Co.  v 
Alsdurf,  47  ///.  App.  200.  Patterson  v. 
Chicago  &*G.  T.  R.  Co.,  n  Mich.  125,  18 
A^  W.  Rep.  584.  Hewitt  v.  Flint  &*  P.  M. 
R.  Co.,  31  Am.  «S-  Eng.  R.  Cas.  249,  67  Mich. 
61,  II  West.  Rep.  148,  34  N.  W.  Rep.  659. 


SIDEWALKS. 

At  street  crossings,  duty  to  construct  and 
maintain,  see  Crossing  of  Streets  and 
Highways,  15. 

Liability  of  company  for  injuries  caused  by 
snow  and  ice  on,  see  Streets  and  High- 
ways, 381. 

Obstruction  of,   by  express  companies,   see 

EXI'KKSS  CoMI'ANIKS,  W, 


SIDINGS— SIGNATURE. 


127 


8IDIH08. 

Doty  to  employti  in  switching  cars  at,  tee 

EMPLovis,  Injuries  to,  100. 

fsnce  at,  ice  Kkncks,  00. 

Negligence  as  to  safety  of,  question  for  Jury, 

■ee  Emi'loyAs,  Injuries  to,  071. 
Promise  by  employer  to  repair  defects  in,  see 

EMPLOvis,  Injuries  t<>,  257. 
Running  burning  cars  on,  liability  for,  see 

Fires,  50. 


8I0HAL  BELLS, 
la  compartment  cars,  patents  for,  see  Pat- 
ents FOR  Inventions,  48. 


8IONAL8. 

MIeging  negligence  in  failure  to  use,  see  Em« 

PLovis,  Injuries  to,  534. 
At  crossings,  admissibility  of  evidence  as  to, 

see  Evidence,  80. 

—  farm  crossings,  see  Farm  Crossings,  12. 
Averment  of  absence  of,  see  Animals,  Inju* 

ries  to,  022. 

Burden  of  proof  in  the  absence  of,  see  Evi- 
dence, 145. 

Care  required  from  person  in  absence  of,  see 
Crossings,  Injuries,  etc.,  at,  108. 

Contributory  negligence  in  failure  to  observe 
or  heed,  see  Crossings,  Injuries,  etc.,  at, 
211 ;  Employes,  Injuries  to,  300. 

relying  upon  unauthorized,  see  Em- 

ploy£s,  Injuries  to,  307. 

Duty  of  passenger  carrier  to  give,  see  Car- 
riage OF  Passengers,  lOO. 

—  to  give,  as  respects  licensees,  see  Licen- 

sees, Injuries  to,  lO. 

— at  crossings,  see  Animals,  Injuries 

to,  104. 

for  protection  of  employes,  see  Em- 
ployes, Injuries  to,  150-102. 

— to  avoid  injury  to  animals,  see  Ani- 
mals, Injuries  to,  05. 

— when  taking   on  passengers,  see 

Carriage  op  Passengers,  223. 

—  —  look  and  listen  as  affected  by  failure  to 

give,  see  Crossings,  Injuries,  etc.,  at, 
204,  205. 

trespassers  as  respects,  see  Trespass- 
ers, Injuries  to,  30-42. 

Effect  of  absence  of,  at  crossing,  see  Death 
by  Wrongful  Act,  100,  200. 

Evidence  as  to,  in  actions  for  causing  death, 
•ee  Death  by  Wrongful  Act,  225. 

Failure  to  give,  when  negligence,  see  Negli- 
gence, 24,  37. 

proximate  cause  of  damage,  see 

Animals,  Injuries  to,  35. 

Injuries  occasioned   by  violation   of   ordi- 


nances requiring,  see  Stristi  and  IIioh- 
WAVs,  378. 

Instructions  as  to  duty  to  give,  see  Crossinos, 
Injuries,  etc.,  at  352,  353. 

failure  to  give,  see  Death  by  Wrong- 
ful Act,  340. 

—  relating  to  duty  to  give,  see  Animals,  In- 

juries TO,  502. 

Liability  for  injuries  at  crossings  as  depend- 
ent upon  duty  to  use,  see  Crossings,  In- 
juries, ETC.,  AT,  01-103. 

Negligence  In  failure  to  give,  question  for 
jury,  see  Employes,  Injuries  to,  007. 

Non-liability  for  negligence  of  fellow-ser* 
vants  in  giving,  or  failing  to  give,  see 
Fellow  servants,  43,  44. 

Ordinance  requiring  use  of,  see  Street  Rail. 
WAYS,  275. 

Patents  for,  see  Patents  for  Inventions,  40. 

Penalties  for  failure  to  stop  on,  see  Penal- 
ties, 5. 

Proof  of  failure  to  give,  see  Animals,  Inju- 
ries TO,  480. 

Prosecution  for  failure  to  give  statutory,  see 
Criminal  Law,  10. 

Rendered  useless  by  excessive  speed,  liabil- 
ity of  company,  see  Crossings,  Injuries, 
ETC.,  AT,   174. 

Right  to  assume  obedience  to,  see  EMPLOvis. 
Injuries  to,  311. 

Rule  of  company  respecting,  see  Employes, 
Injuries  to,  450. 

Showing  failure  to  give,  see  Death  by 
Wrongful  Act,  202. 

Statutes  and  ordinances  requiring,  in  cities, 
see  Streets  and  Highways,  332-335. 

Sufficiency  of  evidence  concerning  giving  of, 
see  Evidence,  281. 

of  failure  to  give,  see  Animals,  In- 
juries to,  449. 

To  avoid  injuring  animals  in  cities  and  vil- 
lages, see  Animals,  Injuries  to,  208, 
200. 

—  stop,  getting  on  train  after,  see  Carriage 

OF  Passengers,  372. 

When  train  is  approaching  or  leaving  sta- 
tion, see  Stations  and  Depots,  02,  03. 

Whether  given,  question  for  jury,  see  Death 
by  Wrongful  Act,  304. 


SIONATUBE. 

Of  carrier  to  bill  of  lading,  see  Bills  of  Lad- 
ing, 5. 

—  mileage  tickets,  stipulation  as  to,  see 
Tickets  and  Fares,  08. 

—  passenger  on  free  pass,  necessity  of,  see 

Passes,  20. 

ticket,  see  Ejection  of  Passengers, 

37. 


128  SIGN   BOARDS-SLEEPING  AND  PALACE  CAR   COMPANIES,  1. 


s 


i  * 


»u 


Of  shipper  ti  bill  of  lading,  ses  Bills  of  Lad- 
INC,  6< 

_  contract  limiting  liability,  see  Limi- 
tation OF  Lkbility,  9. 
To  coupon,  see  Coupons,  2. 

—  debentures,  see  Debentures,  4. 

—  petition  in  condemnation  proceedings,  see 

Eminent  Domain,  307. 

—  -  to  bond  towns  or  cities  in  aid  of  rail- 
way, see  Municipal  and  Localj  Aid, 
81-89. 

—  railway  aid  bonds,  see    Municipal    /  no 

Local  Aid,  306. 

—  report  of  commissioners  in  condemnation 

proceedings,  see  Eminent  Domain,  787. 

—  special  contract  limiting  liability,  see 
Carriage  ok  Mi'Iichandise,  438,  442. 


SIGN  BOARDS. 
Care  required  from  person  in  absence  of,  see 

Crossings,  Injuries,  etc.,  at,  199. 
Duty  to  look  and  listen  as  affected  by  failure 

to  provide,  see  Crossings,  Injuries,  etc., 

at,  207. 
Requirement  of,  in  cities,  see  Struts  and 

hlGHWAVS,  336. 


SIGN  POSTS. 

Prosecution  for  failure  to  erect,  see  Criminal 
Law,  18. 

Injuries  to  employes  by,  see  Ehploy£5,  Inju- 
ries lu,  87. 


SIGNS. 

At  street  crossings,  su£Bciency  of,  see  Cross- 
ing OF  Streets  and  Highways,  21. 

Liability  for  injuries  at  crossings  as  depend- 
ent m  maintenance  of,  see  Crossings, 
iNju.  !is,  etc.,  at,  62. 


SILENCE. 
Estoppel  by,  see  Estoppel,  28,  29. 
Of  abutting  owner,  effect  of,  see  Street  Rail- 
ways, 223. 

P'-incipal,  when  ratification  of  agent's  act, 
cee  Agency,  1 12. 


SINKING  FUND. 
Taxes  for,  see  Taxation,  14. 


SIOUX  CIT7   ft  ?.  R.  CO. 
1.   Making    payment   to   govern- 
nuMit  from    net   income.  —  Tue    net 

earnings  of  the  railroad  being  all  absorbed 
by  paying  interest  on  its  first  mortgage 
bonds,  the  company  is  not  liable  to  pay  five 
per  cent,  to  the  government  on  the  net  earn- 
ings uf  its  road,  under  the  act  of  July  i, 


1 862.  United  States  v.  Sioux  City  Sf  P.  i?. 
Co.,  99  U.  S.  491.— Following  Union  Pac. 
R.  Co.  V.  United  Slates,  99  U.  S.  402. 


SISTER  STATES. 

Conclusiveness  of  judgments  of  courts  of, 
see  Judgment,  25. 


SITE. 
Of  stock  yards,  see  Stock  Yards,  5. 


SITUS. 


Of   property   for    taxation,  see   Taxation, 
125-136. 


SKILL. 

Lack  of,  when  deemed  contributory  negli* 
gence,  see  Employes,  Injuries  to,  306. 

Of  employe,  presumption  of,  see  Employ£s^ 
Injuries  to,  630. 


SLANDER. 
By  agents  of  carrier,  liability  for,  see  Car- 
riage of  Merchandise,  427. 
See  also  Libel  and  Slander. 


SLAVES. 

Carriage  of,  Uability  for  injuries*  to,  see  Car- 
riage of  Slwrs. 

Duty  of  company  as  to  safety  of  hired,  see 
Employes,  Injuries  to,  13. 


SLEEPING. 
In  dangerous  places,  or  while  on  duty,  as 
contributory  negligence,   see  Employes, 
Injuries  to,  320,    321. 

SLEEPING  AND  PALACE  CAR 
COMPANIES. 

Taxation  of  sleeping  cars,  see  Interstate 

Commerce,  191-194. 
When  subject  to  taxation,  see  Taxation,  94. 

L  INGENEBAL 128 

II.  DUTIES  AND   LIABILITIES  Tb  PA8- 

8EH0EBS 1 30 

1.  In  General. 130 

2.  Duty  to  Furnish  Berths,  etc.  131 

3.  Liability  for  Personal  Inju- 

ries   133 

J    Liability  for  Loss  of  Prop- 
erty, Money,  etc 135 

III    LIABILITY  OF  RAILROAD  COMPAHT.  139 

L  IN  GENERAL. 

1.  Duty  to  haul  cars  of  another 
company.— The  C.  company  was  bound 


"   5. 

V 

l! 

SLEEPING  AND    PALACE   CAR  COMPANIES,  3,3. 


129 


to  afford  to  Scottish  east-coast  traffic  of  the 
N.  B.  company  using  its  railway  all  usual 
facilities,  including,  so  far  as  might  reason- 
ably be  reqjired,  through  carriages,  and  also 
any  greater  facilities  which  it  might  grant 
to  any  other  company  in  respect  of  such 
traffic,  or  of  any  trafHc  competitive  with  it. 
The  C.  company  ran  for  the  convenience  of 
traffic  competitive  with  the  Scottish  east- 
coast  traffic  of  the  N.  B.  company,  in  one 
case  a  saloon  sleeping  carriage  weighing 
three  tons,  and  fitted  to  carry  twelve  per- 
sons: and  in  another,  a  composite  carriage, 
of  which  one  compartment  had  sleeping 
berths  for  three  persons.  Held,  that  a  Pull- 
man car  weighing  twenty-one  tons  and  to 
hold  twenty-two  persons,  was  so  dissimilar 
in  character,  both  to  the  saloon  and  com- 
posite carriages,  that  the  N.  B.  company 
was  not  entitled  to  Insist  on  the  forwarding 
of  it  by  the  C.  company,  as  a  similar  facility, 
nor  as  a  reasonable  requirement,  unless  the 
N.  B.  company  guaranteed  to  the  C.  com- 
pany a  mileage  proportion  on  eiglit  fares. 
Caledonian  li.  Co.  v.  North  British  R,  Co., 
3  Ry.  6-  C  T.  Cas.  56, 

2.  Interpretation  aud  effect  of  car 
leases. — A  railroad  contracted  to  use  Pull- 
man palace  cars  exclusively  over  its  line, 
and  over  all  roads  which  it  then,  or  in  the 
future,  might  control  by  "  ownership,  lease, 
or  otherwise."  Afterwards  it  consolidated 
with  another  road  and  a  new  corporation 
was  formed,  but  with  the  same  name  as  the 
contracting  company.  Held,  that  the  con- 
tract did  not  e:rlend  to  the  additional  line 
thus  acquired.  Pullman  Palace  Car  Co. 
v.  Missouri  Pac.  R.  Co.,  23  Am.&'  Eng.  R. 
Cas.  537,  IIS  U.  S.  587,  6  Sup.  Ct.  Rep.  194. 
—Quoted  in  Jessup  v.  Illinois  C.  R.  Co.,  36 
Fed.  Rep.  735  ;  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Cochran,  41  Am.  &  Eng.  R.  Cas.  48,  43 
Kan.  225,  7  L.  R.  A.  414,  23  Pac.  Rep.  151. 
Review  j  in  Chicago,  St.  P.  &  K.  C.  R. 
Co.  V.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  38 
Fed.  Rep.  58. 

A  contract  in  the  nature  of  a  lease  of  the 
right  to  manufacture  and  hire  sleeping  cars 
provided  for  payment  to  the  lessor  of  a 
fixed  annual  sum,  but  if  the  revenue  derived 
from  hiring  cars  should  fall  below  that  sum, 
then  the  lessee  might  declare  the  contract 
ended,  or  pay  such  sum  as  the  parties  might 
agree  on.  Held,  that  if  the  revenue  fell  be- 
low the  annual  rent,  then  the  lessee  was 
only  liable  for  such  sum  as  might  be  agreed 
on,  and  in  case  they  did  not  agree,  then 
7  D.  R.  D.— q 


for  a  sum  in  the  nature  of  a  quantum 
meruit,  but  not  exceeding  the  whole  net 
reven  ue.  Pullman  Palace  Car  Co.  v.  Central 
Transp.  Co.,  139  U.  S.  62,  11  Sup.  Ct.Rep. 
489. 

Three  railroad  companies  whose  roads 
connected  made  running  arrangements  by 
which  the  same  cars  might  pass  over  the 
through  line,  and  entered  into  a  joint  con- 
tract by  which  they  granted  to  an  individual 
the  exclusive  right  to  run  sleeping  cars  over 
their  roads  "  for  the  purpose  of  accommo- 
dating passengers  traveling  on  said  roads, 
which  cars  may  be  run  each  way,  every 
night,  over  the  line  of  said  roads  *  ♦  ♦ 
in  connection  with  a  night  passenger-ex- 
press through  train."  Held,  that  the  ex- 
clusive right  thus  granted  was  limited  to 
through  transportation,  and  did  not  pre- 
vent the  companies  from  furnishing  and 
running  other  sleeping  cars  over  a  portion 
of  the  through  route.  Stanley  v.  Cleveland, 
C.  «S-  C.  R.  Co.,  18  Ohio  St.  552. 

3.  Validity  of  leases  or  contracts. 
— A  corporation  chartered  to  manufacture 
and  hire  sleeping  cars,  was  by  a  subsequent 
law  authorized  "  to  enter  into  contracts 
with  corporations  of  this  or  any  other  state 
for  the  leasii'g  or  hiring  and  transfer  to 
them  or  any  of  them,  of  its  railway  cars  and 
other  personal  property."  The  corporation 
then  entered  into  a  contract  with  another 
company  by  which  it,  for  a  fixed  annual 
sum,  leased  for  the  full  term  of  its  charter, 
all  cars,  contracts,  patents,  and  property  of 
all  kinds,  and  agreed  not  to  engage  again  in 
the  manufacture  and  hiring  of  cars,  during 
the  terms  of  the  lei.3e.  Held,  that  the  lease 
was  void,  being  both  ultra  vires  and  against 
public  policy.  Central  Transp.  Co.  v.  Pull- 
man Palace  Car  Co.,  45  Am.  &*  Eng.  R. 
Cas.  607,  139  (7.  S.  24,  II  Sup.  Ct.Rep.  478. 
—Followed  in  Hamilton  v.  Savannah,  F. 
&  W.  R.  Co.,  52  Am.  &  Eng.  R.  Cas.  130, 
49  Fed.  Rep.  412.  Quoted  in  Clarke  v. 
Central  R.  &  B.  Co.,  52  Am.  &  Eng.  R. 
Cas,  115.  50  Fed.  Rep.  338.  Reviewed  in 
Union  Pac.  R.  Co.  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  51  Am.  &  Eng.  R.  Cas.  162,  51  Fed. 
Rep.  309,  2  C.  C.  A.  174. 

A  contract  between  a  sleeping-car  com- 
pany and  a  railroad  by  which  the  former 
agrees  to  furnish  the  latter  with  sufficient 
cars  for  the  public  demand,  in  good  condi< 
tion,  and  the  railroad  agrees  not  to  hire  cars 
of  any  other  company,  is  not  void  as  in  re- 
straint  of  trade.     Chicago,  St.  L.  &»  N,  0» 


130 


SLEEPING   AND   PALACE  CAR  COMPANIES,  4-7. 


m 

i 


m 


R.  Co.  \.  Pullman  Sottthern  Car  Co.,  139  U. 
S.  79,  II  Sup.  a.  Rep.  490. 

A  railroad  company  in  Texas  may  con- 
tract with  a  palace-car  company,  giving  it 
the  exclusive  right  to  furnish  cars  lor  use  on 
its  road  for  a  term  of  years.  But  a  court  of 
equity  will  not,  by  injunction,  restrain  the 
railroad  from  breaking  the  contract,  as  it 
would  unreasonably  tax  the  time  and  re- 
sources of  the  court  for  a  term  of  years,  and 
because  the  contract  being  the  grant  of  a 
monopoly,  a  court  of  equity  will  exercise  its 
discretion  in  restraining  its  breach.  Pull- 
man Palace  Car  Co.  v.  Texas  &•  P.  R.  Co.. 
4  IVoods  (U.  S.)  317.  II  Fed.  Rep.  625. 

4.  Recovery  for  loss  or  destructiou 
of  cars. — A  railroad  leased  sleeping  cars, 
assuming  responsibility  for  loss  thereto  by 
"accident  or  casualty."  Two  cars  burned, 
one  being  in  the  exclusive  control  of  the  rail- 
road, and  the  other  in  the  repair  shop  of  the 
lessor  at  the  time.  The  cause  of  the  fire 
was  unknown.  Held,  that  the  fire  was  an 
"accident  or  casualty  ";  and  that  the  railroad 
was  liable  for  the  loss  of  the  car  in  its  pos- 
session, but  not  the  other.  Chicago,  St.  L. 
&*  N.  0.  R.  Co.  V.  Pullman  Southern  Car 
Co.,  139  U.  S.  79,  II  Sup.  a.  Rep.  490. 

An  insurance  company  paid  the  insurance 
on  leased  sleeping  cars  to  the  owners,  and 
at  the  same  time  made  an  agreement  that 
the  owners  should  pay  the  insurance  com- 
pany one  half  of  the  value  of  the  cars  that 
might  be  recovered  from  the  railroad  hav- 
ing them  leased.  Held,  that  such  contract 
would  not  prevent  a  recovery  against  the 
railroad.  Chicago,  St.  L.  &-  N.  O.  R.  Co. 
V.  Pullman  Southern  Car.  Co.,  139  U.  S.  79, 
II  Sup.  Ct.  Rep.  490. 

n.  DUTIES  AHD  LIABIUTIES  TO 
PAS8EN0EBB. 

I.  In  General. 

5.  Liability  of  sleeping-car  com- 
pany as  a  carrier  of    passengers.— 

The  Pullman  Palace  Car  company  is  not  a 
common  carrier.  Where  a  railroad  com- 
pany, which  is  a  common  carrier,  receives  as 
a  part  of  its  train  the  cars  belonging  to  such 
car  company,  the  ^ome  form  a  part  of  its 

•Contract  of  sleeping-car  company  implied 
from  sale  of  ticket,  see  note,  26  Am.  St.  Rep.  339. 

Duties  and  liabilities  of  sleeping-car  compa- 
nies, generally,  see  notes,  5  Am.  St.  Rrp.  34;  26 
//.  331 ;  31  Am.  &  Eng.  R.  Cas.  446. 

For  failure  to  exercise  reasonable  care,  see 
note,  26  Am.  St.  Rep.  333. 


train,  and  are  under  its  control,  except  as  to 
providing  lodging  for  the  accommodation 
of  those  who  pay  for  riding  in  the  palace 
cars.  The  agents  of  the  railroad  company 
have  a  right  to  determine  who  shall  ride  in 
the  palace  cars,  as  a  part  of  its  train.  Lemon 
V.  Pullman  Palace  Car  Co. ,  52  Fed.  Rep.  262. 

Where  a  railroad  company  and  a  sleeping- 
car  company  are  jointly  sued  for  failing  to 
remove  or  restrain  an  insane  passenger, 
whereby  another  passenger  is  injured,  it  is 
error  merely  to  instruct  the  jury  that  the 
sleeping-car  company  is  not  ordinarily  a 
common  carrier,  as  it  might  lead  the  jury  to 
infer  that  its  powers  in  this  respect  were 
more  limited  than  those  of  the  railroad  com- 
pany. The  company  had  the  right,  if  neces- 
sary, to  restrain  or  eject  from  its  cars  an  in- 
sane person.  Meyer  v.  St.  Louis,  /.  M.  &* 
S.  R.  Co.,  54  Fed.  Rep.  116,  10  U.  S.  App. 
677,4  C.  C.  A.  221. 

The  liability  of  a  sleeping-car  company  is 
not  that  of  a  common  carrier ;  its  liability 
is  only  for  ordinary  and  reasonable  care  of 
the  passenger  and  his  effects  while  he  is 
asleep  in  the  car.  Scaling  v.  Pullman  Pal- 
ace Car  Co.,  24  Mo.  App.  29.— Quoting 
Pullman  Palace  Car  Co.  v.  Gardner,  (Pa.)  16 
Am.  &  Eng.  R.  Cas.  324. 

The  liability  of  a  sleeping-car  company 
is  not  afTectcd  by  the  fact  that  the  railway 
company,  to  whose  train  the  sleeping  car 
is  attached  may  receive  the  greater  part  of 
the  money  paid  by  the  passenger  for  his 
transportation.  The  sleeping-car  company 
is  still  a  carrier  of  passengers,  and  it  is  liable 
as  such.  Pullman  Palace  Car  Co.  \.  Pollock, 
34  Am.  &>  Eng.  R.  Cas.  217,  69  Tex.  120,  S 
Am.  St.  Rep.  31.  5  5.  IV.  Rep.  814. 

G.  Duty  to  awaken  passenger  sea- 
sonably.—The  failure  of  the  servants  of  a 
sleeping-car  company  to  awaken  a  passen- 
ger in  sufficient  time  to  leave  the  car  at  his 
destination  is  a  good  cause  of  action  against 
the  company.  Pullman  Palace  Car  Co.  v. 
Smith,  79  Tex.  468.  145.  W.  Rep.  993. 

The  obligation  to  awaken  and  notify  the 
passenger  in  time  for  him  to  prepare  to  leave 
the  train  with  comfort  and  safety  at  the 
point  of  destination  is  directly  involved  in 
the  contract  for  the  use  of  the  sleeping 
berth.  Pullman  Palace  Car  Co.  v.  Smith, 
79  Tex.  468,  14  5.  W.  Rep.  993. 

7.  Reciprocal  duties  of  passenger 
aufl  car  company.— A  sleeping-car  com- 
pany operating  and  runningsleeping  coaches 
over  railroads,  by  force  of  law,  independ- 


SLEEPING   AND   PALACE   CAR  COMPANIES,  8,9. 


131 


ently  of  contract,  owes  duties  to  tlie  public 
as  a  common  carrier,  one  of  which  is  that 
it  shall  treat  all  persons  whose  patronage 
it  has  solicited  with  fairness  and  without  un- 
just disci  imination,  and  it  is  liable  in  case 
for  a  breach  of  such  duty  to  the  party  in- 
jured thereby.  Nevin  v.  Pullman  Palace 
Car  Co.,  1 1  Am.  6-  Eng,  R.  Cas.  92,  106  ///. 

223. 

Where  a  berth  in  a  sleeping  car  is  engaged, 
the  passenger  impliedly  agrees  to  conduct 
himself  in  a  quiet  and  orderly  manner,  to 
take  proper  care  of  the  berth  while  in  his 
possession,  and  to  give  up  the  same  at  the 
end  of  his  journey;  and  the  carrier  com- 
pany impliedly  stipulates  to  use  all  reason- 
able and  proper  means  to  preserve  order 
and  decorum  in  the  sleeper,  to  furnish  and 
keep  on  hand  such  supplies  and  conven- 
iences as  are  usually  found  in  like  sleepers, 
and  arc  necessary  to  the  health,  comfort,  and 
safety  of  passengers,  and  also  to  permit  the 
passenger  quietly  and  peaceably  to  occupy 
his  berth  for  the  time  engaged.  And  case 
lies  for  the  breach  of  such  implied  contract 
against  the  carrier,  as  well  as  assumpsit. 
Nevin  v.  Pullman  Palace  Car  Co.,  11  Am. 
&^  Ent^.  /?.  Cas.  92,  106  ///.  222. 

8.  Uiy:lit  to  collect  extra  fare  ou 
chair  cars. — Where  a  railway  company 
furnishes  sufficient  first-class  cars  with  the 
usual  appliances,  and  upon  the  same  train 
carries  a  chair  car  which  furnishes  extra 
service  and  accommodations,  a  regulation 
that  persons  traveling  a  distance  less  than 
one  hundred  miles  shall  pay  twenty-five 
cents  in  addition  to  the  maximum  charge 
for  first-class  passage  is  reasonable,  and  not 
prohibited  by  the  statute  which  limits  the 
sum  railways  may  collect  for  first-class  pas- 
sage. St.  Louts,  A.  &•  T.  R.  Co.  v.  Hardy, 
52  Am.  &•  Eng,  R.  Cas.  224,  55  Ark.  134, 
175.   W.  Rep.  Jii. 

Where  a  passenger  in  a  chair  car  declines 
to  pay  the  extra  charge  demanded,  he  can- 
nut  recover  damages  because  he  is  removed 
to  a  first-class  passenger  car,  if  it  is  done 
without  unnecessary  force.  St.  Louis,  A. 
dM  T.  R.  Co.  v.  Hardy,  52  Am.  &^  Ettg.  R. 
Cas.  224,  55  Ark.  134,  17  S.  W.  Rep.  711. 

An  advertisement  by  a  railway  company 
which  states  generally  that  free  rcclining- 
chair  cars  will  be  run  upon  its  road,  and 
specially  that  such  cars  will  be  run  to  a  cer- 
tain city,  does  not  warrant  ti)e  inference 
that  such  cars  are  free  to  all  passengers  un- 
der all  circumstances,  or  that  they  are  free 


at  all  except  to  those  taking  passage  to  the 
city  named;  nor,  if  such  inference  is  war- 
ranted, could  one  removed  from  a  chair  car 
for  refusing  to  pay  the  extra  charge  recover 
damages  therefor  without  showing  that  he 
was  misled  to  his  damage.  St.  Louis,  A.  &* 
T.  R.  Co.  V.  Hardy,  52  Am.  <S-  Eng.  R.  Cas. 
224,  ss  Ark.  134,  17  S.  W.  Rep.  711. 

2.  Duty  to  Furnish  Berths,  etc. 

O.  Generally.*  —  A  sleeping-car  com- 
pany may  lawfully  sell  a  whole  section  in  a 
car  to  one  passenger,  and  may  refuse  to  sell 
the  upper  berth  to  another  passenger,  al- 
though it  is  unoccupied.  Searles  v.  Mann 
Boudoir  Car  Co.,  45  Fed.  Rep.  330. 

Where  a  section  in  a  sleeping  car  is  sold 
to  an  intermediate  point,  the  company  is 
not  liable  for  the  refusal  of  the  conductor 
to  sell  it  from  that  point  on,  to  another  pas- 
senger, where  the  application  is  made  before 
the  intermediate  point  is  reached.  Searles 
v,  Mann  Boudoir  Car  Co.,  4$  Fed.  Rep.  330. 

Where  a  passenger,  who  is  entitled  to  a 
berth  upon  payment  or  tender  of  the  usual 
fare,  and  to  w  .om  no  personal  objection 
attaches,  enters  a  sleeping  car  at  a  proper 
time  for  the  purpose  of  procuring  accommo- 
dations, and  in  an  orderly  and  respectful 
manner  applies  for  a  berth,  offering  to  pay 
or  tendering  the  customary  price  therefor, 
the  company  is  bound  by  law  to  furnish  it, 
provided  it  has  a  vacant  one  at  its  disposal. 
Nevin  v.  Pullman  Palace  Car  Co.,  11  Am. 
&*  Eng.  R.  Cas.  92,  106  III.  222. 

Where  a  passenger  purchases  a  ticket, 
which  purports  to  entitle  him  to  a  continu- 
ous passage  in  a  certain  sleeping  car  and 
berth  to  his  destinatiun,  he  is  entitled  to  a 
continuous  passage  in  such  berth,  or  in  one 
equally  desirable  for  safety,  convenience, 
and  comfort.  Pullman  Palace  Car  Co.  v. 
Taylor,  65  Ind.  153. 

Where  a  sleeping-car  company  is  sued 
for  failing  to  furnish  a  continuous  passage 
in  the  same  car,  an  answer  alleging  that 
defendant  had  sitrply  furnished  the  car  to 
the  railroad  compi  nies.  for  the  use  of  passen- 
gers, for  a  certain  rent,  pursuant  to  a  con- 
tract between  it  and  such  companies,  but 
admittmg  tiiat  the  change  of  cars  was  made 
as  alleged  in  the  complaint,  is  insufficient. 

*  Duty  of  sleeping-car  company  to  furnish 
berths  to  all  entitled  to  them,  see  note,  36  Am. 
br,  Rei'.  338. 


fef 


18S 


SLEEPING   AND   PALACE   CAR  COMPANIES,  10-13. 


Ml 


'4  *' 


Pullman  Palace  Car  Co.  v.  Taylor.b^  Ind. 

Plaintiff  was  a  passenger  on  a  sleeping 
car,  and  at  half-past  eight  in  the  evening, 
asked  the  porter  to  prei)are  his  berth  for 
sleeping.  The  porter  replied  that  he  could 
not  do  so  until  he  had  served  certain  lunches 
which  had  been  ordered  ;  whereupon  plain- 
tiff demanded  in  an  angry  maimer  that  the 
berth  be  prepared  immediately,  and  the 
porter  refused  in  a  like  angry  manner. 
Thereupon  plaintiff  demanded  of  the  con- 
ductor that  his  berth  be  prepared  at  once, 
or  his  money  returned,  which  was  refused. 
The  berth  was  prepared  by  nine  o'clock  in 
the  evening,  but  the  plaintiff  refused  to  oc- 
cupy it  and  sat  up  all  night.  Held,  that  he 
iiad  no  cause  of  action  against  the  com- 
pany. Pullman  Palace  Car  Co.  v.  Ehrman, 
34  Am.  &•  Eng.  li.  Cas.  362,  65  Miss.  383,  4 
So.  Rep.  113. 

10.  Berth  sold  a  second  time  by 
luistako.  —  No  recovery  can  be  had  for 
damages  sustained  by  expulsion  from  a 
sleeping-car  berth  when  it  appears  that  the 
berth  in  question  was  reserved  by  a  stand- 
ing order  of  the  company,  that  it  was  erro- 
neously sold  by  the  conductor,  who,  on  dis- 
covering his  error,  notified  the  passenger 
and  offered  equal  accommodation  in  another 
berth,  which  was  refused  by  the  passenger, 
who  thereupon,  without  compulsion,  left 
the  car.  Mann  Doitdoir  Car  Co.  v.  Dttpre, 
58  Am.  &>  Ettg.  R.  Cas.  575,  54  Fed.  Rep. 
646,4  c.  C.  A.  540. 

11,  Joint  occupancy  of  berth  by 
husband  and  wife.— When  a  berth  in  a 
sleeping  car  is  contracted  for  by  a  husband 
either  with  an  express  understanding  that 
it  is  engaged  for  the  joint  occupancy  of 
himself  and  wife  or  under  circumstances 
that  are  not  misleading  within  themselves, 
the  refusal  to  permit  such  joint  occupancy 
without  other  reason  than  the  difference  of 
sex,  and  when  such  refusal  would  be  a 
breach  of  contract,  will  give  the  injured 
party  a  right  for  damages.  Pullman  Palace 
Car  Co.  v.  Bales,  47  Am.  &*  Eng.  /?.  Cas. 
416,  80  Tex.  211.  15  .9.  H^.  Rep.  785. 

BUt  where  a  husband  and  wife,  traveling 
in  the  same  car,  each  contract  for  one  berth, 
the  sleeping-car  company  is  not  liable  for 
the  refusal  of  the  conductor  and  porter  to 
allow  the  husband  to  admit  his  wife  to  his 
berth,  although  these  servants  act  in  an  ex- 
cel dingly  rude  manner  and  pull  aside  the 
curtains  exposing  to  view  the  husband  and 


wife  undressed.  Pullman  Palace  Car  Co.  v. 
Pales,  47  Am.  &*  Eng.  K.  Cas.  416,  80  Tex. 
211,155.  W.Rep.  785. 

It  is  the  duty  of  the  servants  of  a 
sleeping-car  company  to  investigate  matters 
apparently  showing  improper  conduct  by 
passengers ;  but  such  investigation  should 
be  conducted  without  rudeness  or  greater 
publicity  than  necessary;  but  rudeness  of 
manner  in  discharging  the  duty,  not  accom- 
panied by  violence,  will  not  of  itself  be  a 
cause  of  action,  although  it  might  be  con- 
sidered in  aggravation  of  damages,  if  a 
cause  of  action  otherwise  existed.  Pullman 
Palace  Car  Co.  v.  Bales,  47  Am.  &>  Eng.  R. 
Cas.  416,  80  Tex.  211,  15  S.  W.  Rep.  785. 

12.  Uule  requiring  passenger  to 
have  first-class  ticket.— A  rule  requir- 
ing a  passenger  to  have  a  first-class  ticket 
before  he  can  enter  or  use  a  sleeping  car 
is  a  reasonable  one  and  can  be  enforced. 
Pullman  Palace  Car  Co.  v.  Lee,  49  ///.  App. 

75- 

An  agent  who  was  charged  with  selling 
both  railroad  tickets  and  sleeping-car  tick- 
ets, refused  to  sell  a  sleeping-car  ticket  to  a 
passenger,  for  the  reason  that  he  did  not 
hold  a  first-class  railroad  ticket.  Held,  that 
he  acted  as  the  agent  of  the  railroad  com- 
pany in  determining  that  the  ticket  was  not 
first  class,  and  the  sleeping-car  company 
was  not  liable  for  his  act ;  but  having  deter- 
mined that  the  ticket  was  not  first  class,  he 
was  justified  in  refusing  to  sell  a  sleeping- 
car  ticket.  Lemon  v.  Pullman  Palace  Car 
Co.,  52  Fed.  Rep.  262. 

But  if  it  be  admitted,  in  such  case,  that 
the  agent  acted  also  for  the  sleeping-car 
company,  and  acted  in  good  faith  in  passing 
upon  the  question  of  whether  the  ticket 
was  first  class,  the  passenger  would  only  be 
entitled  to  actual  damages.  Punitive  dam- 
ages cuuld  not  be  recovered,  unless  the 
agent  acted  in  some  rude  manner,  which 
was  insulting,  or  which  would  show  malice 
on  his  part.  Lemon  \.  Pullman  Palace  Car 
Co.,  52  Fed.  Rep.  262. 

13.  Rule  requiring  through  tick- 
ets between  certain  points.  —  By  a 
contract  between  a  railroad  company  and 
a  sleeping-car  company  it  was  provided 
that  the  latter  should  furnish  cars  for  the 
transportation  of  passengers  and  run  them 
under  the  rules  and  regulations  of  the 
former.  By  a  regulation  of  the  railroad 
company  passengers  on  certain  trains  were 
not  entitled  to  purchase  sleeping-car  accom- 


SLEEPING  AND   PALACE   CAR  COMPANIES    14-19. 


133 


modations  unless  they  held  through  tickets. 
PlaintifT,  holding  a  "  split "  ticket,  or  two 
tickets  covering  the  distance,  having  applied 
for  a  sleeping-car  ticket,  and  the  railroad 
company's  agent  having  refused  to  sell  him 
one,  was  expelled  from  the  sleeping  car,  its 
conductor  assisting  the  train  conductor  in 
leading  him  from  that  car  to  one  of  the 
other  passenger  cars  on  the  train,  no  force 
being  used  or  bodily  harm  done  him.  Held, 
that  the  sleeping-car  company  was  not 
obliged  to  furnish  plaintiff  a  berth,  nor  is  it 
rcsr'jnsible  for  the  act  of  the  railroad  con- 
ductor in  expelling  him  from  the  car,  al- 
though he  was  assisted  by  one  of  its  own 
employes.  Lawrence  v.  Pullman  Palace 
Car  Co.,  28  Am.  &*  Eng.  R.  Cas.  151,  144 
Mass.  I,  10  A';  E.  Rep.  723. 

14.  Where  passenger  has  lost  his 
ticket.— Plaintiff  purchased  a  ticket  which 
entitled  him  to  ride  in  a  drawing-room  car, 
which  was  limited  to  that  day  and  train 
only.  Before  taking  passage  he  lost  it,  and 
went  to  the  agent  who  gave  him  a  personal 
statement  that  he  had  sold  a  ticket,  but 
wliich  the  conductor  refused,  and  upon  his 
refusal  to  pay  again,  required  him  to  ride  in 
a  common  coach.  The  ticket  was  not  pre- 
sented, and  no  one  else  claimed  the  seat. 
Held,  that  the  conductor  exceeded  his  au- 
thority, and  that  the  company  was  liable. 
Ruck  V.  Webb,  33  A^.  Y.  S.  R.  824.  58  Hun 
185,  II  A^.  Y.  Supp.  6x7. 

In  such  a  case,  where  no  personal  injury 
is  done  and  no  physical  force  used,  a  verdict 
for  $1000  is  excessive.  Buck  v.  Webb,  33  A^. 
Y.  S.  R.  824,  58  Hun  185,  II  A^.  Y.  Supp. 
617. 

3.  Liability  for  Personal  Injuries. 

15.  Generally.*— A  sleeping-car  com- 
pany, which  manufactures  cars  and  puts 
them  on  railroads  belonging  to  others,  is 
not  liable  for  i,-.juries  received  by  the  occu- 
pants of  its  cars  from  accidents  connected 
with  the  movement  of  the  train.  Nor  is  it 
liable  for  the  negligence  or  misconduct  of 
those  charged  with  the  duty  of  operating 
the  train.  Campbell  v.  Pullman  Palace  Car 
Co. ,  42  Fed.  Rep.  484. 

But  such  company  does  assume  certain 
dutii!s  and  obligations  to  its  passengers,  and 
becomes  bound  to  the  exercise  of  reasonable 
caie  in  the  performance  thereof.     It  is  liable 

*  Li  ibility  for  torts  of  servant,  sec  47  Am.  & 
Eng.  R.  Cas.  420,  abstr. 


for  any  injury  to  an  occupant  of  a  car  result- 
ing from  the  negligence  or  wilful  miscon- 
duct of  persons  in  charge  of  the  car,  of 
such  a  nature  as  to  'nterfere  with  the  safe 
and  comfortable  use  of  the  car  by  the  pas- 
senger. So  a  company  is  liable  for  an  in 
decent  assault  made  by  a  porter  upon 
female  passenger.  Campbell  v.  Pullman 
Palace  Car  Co.,  42  Fed.  Rep.  484. 

16.  Caused  by  wrongful  expul- 
sion fVoin  berth.— A  female  passenger 
may  recover  of  a  sleeping-car  company  for 
a  miscarriage  produced  by  her  wrongful 
expulsion  from  a  berth,  although  her  condi- 
tion was  not  known  to  the  servants  of  the 
company.  Mann  Boudoir  Car  Co.  v.  Dupre, 
58  Am.  <S^  Eng.  R.  Cas.  575,  54  Fed.  Rep. 
646,  4  C.  C.  A.  540. 

17.  Expulsion  from  sleeping  car  at 
improper  place.- The  fact  that  a  rail- 
road company  might  be  liable  for  putting  a 
passenger  off  at  an  improper  place,  will  not 
relieve  a  sleeping-car  company  from  liability 
where  its  own  servants  fail  to  notify  the 
passenger  in  time  to  get  off  at  the  proper 
place.  Pullman  Palace  Car  Co,  v.  Smith, 
79  Tex.  468,  14  S.  W.  Rep.  993. 

18.  Injuries  caused  by  negligence 
of  employes. — A  passenger  on  a  sleeping 
car  sued  the  company  for  injuries  received 
by  the  porter  negligently  letting  a  pistol  fall 
on  the  floor,  which  was  discharged,  and  the 
ball  lodged  in  the  passenger's  limb.  The 
company  filed  a  plea  in  bar,  that  the  porter 
was  acting  in  violation  of  its  orders  at  the 
time  ;  that  the  pistol  belonged  to  a  passen- 
ger, and  that  the  porter  had  violated  a  rule 
of  the  company  in  taking  it.  Held,  that  the 
plea  was  demurrable.  The  question  of  the 
company's  liability  depended  upon  whether 
the  act  of  the  porter  was  within  the  scope 
or  general  course  of  his  employment,  and 
not  whether  it  was  done  contrary  to  the 
company's  rules.  Heenrich  v.  Pullman  Pal- 
ace Car  Co.,  18  Am.  6f  Eng.  R.  Cas.  379,  20 
Fed.  Rep.  100. 

10.  Assault  upon  passengers  by 
emploj-e.— A  sleeping-car  company  that 
manufactures  cars  and  puts  them  on  roads 
belonging  to  other  companies  is  not  liable 
to  passengers  for  matters  connected  with  the 
movement  of  the  train,  but  it  is  liable  for 
assaults  committed  on  passengers  by  porters 
and  such  employes  as  it  furnishes.  Camp- 
bell V.  Pullman  Palace  Car  Co.,  42  Fed.  Rep. 
484. 

Where  a  passenger  upon  a  railroad  train 


134  SLEEPING   AND   PALACE  CAR  COMPANIES,  20-22. 


II 


is  assaulted  by  the  jjoitcr  of  a  sleeping  car 
111  which  he  lias  hiicd  a  section,  during  an 
altei'caiioii  which  occurred  after  the  pas- 
senger liad  been  transferred  to  another  train, 
owing  to  a  washout,  the  question  whether 
or  not  the  porter  was  in  the  performance  of 
his  duties  as  the  agent  of  the  railroad  com- 
pany when  the  assault  was  inflicted  is  a 
question  for  the  jury  under  all  the  facts  and 
circumstances  of  the  cas-  '^-vinelle  v.  New 
York  C.  &*  H.  R.  K   C  .    ■/.  6-  Eng.  A\ 

Cas.  384.  120  A'.  F.  11  V      .  Kep.  319. 

30  N.  Y.  S.  K.  578,  8  L.  R.  A.  J24,  17  Am. 
St.  Kep.  611  ;  re%>ersing  15  Hun  139,  9  N.  Y. 
S.  R.  838. 

liO.  Assault  upon  oni*  not  ;i  )>as- 
K(>ii{;:«T  tliou*;li  lawi'iilly  iu  the  car. 
—The  obligation  of  a  sleeping-car  com- 
pany for  injury  to  a  stranger  who  enters 
the  car  for  the  purpose  of  asking  tlie  priv- 
ilege of  washing  his  hands,  and  is  there 
wantonly  and  without  provocation  assaulted 
and  beaten  by  the  porter  of  the  car.  is  not 
governed  by  the  principles  regulating  the 
liability  of  common  carriers,  under  the  con- 
tract of  carriage,  for  like  assaults  commit- 
ted by  servants  on  their  passengers.  The 
two  cases  discriminated,  and  authorities  re- 
viewed. Williams  v.  Pullman  Pa/ace  Car 
Co.,  33  Am.  &^  Eng.  R.  Cas.  407, 40  La.  Ann. 
87,  3  So.  Rep.  631.— Quoting  Keene  v. 
Lizard i,  5  La.  43!.  Quoting  and  distin- 
guishing Goddard  v.  Grand  Trunk  R.  Co., 
57  Me.  202. 

The  facts  that  the  party  injured  was  not  a 
trespasser,  but  was  lawfully  on  defendant's 
premises,  and  was  properly  dealing  with  the 
defendant'.s  servant  as  a  servant,  do  not  suf- 
fice to  fix  defendant's  liability,  if  the  assault 
was  wanton  and  entirely  foreign  to  the 
functions  committed  to  the  servant ;  other- 
wise a  bank  or  a  merchant  or  a  householder 
would  be  liable  for  wanton  assaults  com- 
mitted by  their  clerks  or  servants  upon  cus- 
tomers or  visitors,  which  liability  would 
clearly  not  exist  unless  the  masters  were 
guilty  of  fault  in  employing  so  dangerous  a 
servant.  Williams  v.  Pullman  Palace  Car 
Co.,  33  Am.  6-  Eng.  R.  Cas.  407,  40  La. 
Ann.  87,  3  So.  Kep.  631. 

The  evidence  establishes  that  the  porter 
oflendinj,'  in  this  case  had  been  in  defend- 
ant's employment  fcir  three  years,  and  had 
always  conducted  himself  properly,  and  bore 
a  good  character  for  amiability,  sobriety, 
and  politeness  ;  that  porters  are  mere  menial 
servants,  having  no  police  authority  what- 


ever, and  no  connection  with  the  enforce- 
iiient  of  the  rules  of  the  service,  except  to 
report  violations  of  them  to  the  conductor ; 
and  that  he  had  no  authority  to  use  violence 
towards  any  person  for  any  purpose  what- 
ever. Hence  this  wanton  assault  was  en- 
tirely foreign  to  the  functions  of  his  em- 
ployment, and  defendant  cannot  be  held 
responsible  therefor.  Williams  v.  Pullman 
Palace  Car  Co.,  33  Am.  <&-  Eng.  R.  Cas.  407, 
40  La.  Ann.  87,  3  So.  Rep.  631. 

21.  Failure  to  eject  or  restrain  in- 
sane passenger.— In  an  action  against  a 
railroad  company  and  a  sleeping-car  com- 
pany for  failure  to  eject  or  restrain  an  in- 
siiiie  passenger  who  caused  the  death  of 
plaintiff's  intestate,  a  fellow-passenger,  the 
jury  were  instructed  that  the  sleeping-car 
company  was  not  a  common  carrier  and 
under  obligations  as  such  to  protect  its  pas- 
sengers from  injury,  but  were  not  instructed 
that  such  company  had  the  right  to  eject 
or  restrain  such  a  passenger,  though  an  in- 
struction to  that  effect  had  been  previously 
given  as  to  the  right  of  the  railroad  com- 
pany. Held,  that  the  instruction  was  er- 
roneous, as  the  jury  might  infer  therefrom 
that  the  rights  of  the  sleeping-car  company 
were  more  limited  than  those  of  the  rail- 
road company.  Meyer  v.  St.  Louis,  I.  M.  &* 
S.  R.  Co.,  58  Am.  &*  Eng.  R.  Cas.  ill,  54 
Fed.  Rep.  116. 

22.  Increased  risk  due  to  pas- 
senger's physical  condition.— Persons 
who  are  ill  have  a  right  to  enter  and  travel 
in  the  cars  of  a  railroad  company,  and  as  a 
common  carrier  of  passengers  the  company 
has  no  right  to  prevent  them,  but  the  in- 
creased risk  arising  from  the  conditions  of 
health  affecting  their  fitness  to  travel,  cer- 
tainly where  such  conditions  are  unknown 
to  the  carrier,  must  be  assumed  by  the  pas- 
senger. Pullman  Palace  Car  Co.  v.  Barker, 
4  Colo.  344. 

Plaintiff,  a  woman,  was  a  passenger  on  a 
sleeping  car  of  defendant,  which,  through 
the  negligence  of  defendant,  caught  fire, 
and  plaintiff  was  compelled,  in  a  half-clad 
condition,  to  leave  the  car,  and  caught  cold 
which  resulted  in  the  suppression  of  her 
menses  and  subsequent  illness.  Held,  that 
plaintiff,  being  "  unwell  "  at  the  time,  there 
was  in  her  then  physical  condition  an  inter- 
mediate and  independent  cause  of  the  sub- 
sequent illness,  which  was  the  remote  and 
not  the  proximate  result  of  the  defendant's 
negligence.      Pullman    Palact  Car  Co.   v. 


i 


SLEEPING   AND   PALACE   CAR  COMPANIES,  23-26.  136 


Barker,  4  Colo.  344. — Denied  in  Louisville, 
N.  A.  &  C.  R.  Co.  V.  Falvey,  23  Am.  &  Eng. 
R.  Cas.  522,  104  Ind.  409.  Doubted  in 
Lapleine  v.  Morgan's  L.  &  T.  R.  &  S.  Co., 
37  Am.  &  Eng.  R.  Cas.  348,  40  La.  Ann.  661, 
I  L.  R.  A.  378,  4  So.  Rep.  875. 

23.  Contributory  iiegligoiice  ns  n 
defense.— A  passenger  on  a  sleeping  car  is 
not  guilty  of  contributory  negligence  per  sc 
in  going  into  an  unlighted  dressing  room  at 
night  and  in  attempting  to  enter  a  w^tcr- 
closet,  but  by  mistake  openei"  the  rear  door 
of  the  car  and  fell  out,  instead  of,  as  claimed 
by  the  company,  calling  a  porter  and  wait- 
ing for  a  light.  Piper  v.  Netv  York  C.  &* 
H.  R.  R.  Co.,  27  N,  Y.  Supp.  593,  76  Hun 
44. 

4.  Liability  for  Loss  of  Property,  Money,  etc. 

24.  Generally.*— Where  the  action  is 
for  a  loss  by  theft  from  a  passenger  on 
a  sleeping  car,  and  the  company  is  charged 
with  negligence  in  not  keeping  a  proper 
guard,  the  court  may  instruct  the  jury  as  to 
what  special  acts  constitute  negligence,  so 
as  to  render  the  company  liable,  but  it  is 
not  bound  to  do  so.  Scaling  v.  Pullman 
Palace  Car  Co.,  24  Mo.  App.  29.— Review- 
ing Goodwin  v.  Chicago,  R.  L  &  P.  R.  Co., 
75  Mo.  73;  Yarnall  v.  St.  Louis,  K.  C.  &  N. 
R.  Co.,  75  Mo.  575  ;  Boland  v.  Missouri  R, 
Co.,  36  Mo.  491  ;  Kennedy  v.  North  Mo.  R. 
Co.,  36  Mo.  351 ;  Smith  v.  Hannibal  &  St. 
J.  R.  Co.,  37  Mo.  287 ;  Callahan  v.  Warne, 
40  Mo.  131 ;  Liddy  v.  St.  Louis  R.  Co.,  40 
Mo.  506. 

The  liability  of  a  sleeping-car  company 
should  extend  to,  and  be  made  to  cover, 
such  articles  of  baggage  as  are  ordinarily  or 
usually  carried  by  travelers  in  like  situations, 
in  valises  which  they  carry  with  them  into 
such  cars,  provided  they  are  such  articles  as 
would  be  considered  baggage  in  an  action 
against  ordinary  carriers  of  passengers.  The 
fact  that  the  passenger  mny  have  a  trunk 
with  him  or  have  placed  in  his  valise  articles 
he  may  not  need  while  on  the  car,  and  only 
to  be  used  in  case  of  stopping  over,  does 
not  militate  against  the  right  of  recovery. 
Hampton  v.  Pullman  Palace  Car  Co.,  42  Mo. 
App.  134. 

A  person  in  whose  custody  property  hns 
been   placed   for  the  use  of  a  fellow-pas- 

*  Liability  of  sleeping-car  companies  for  loss 
of  pasf.eni;er's  effects.  Sufficiency  of  evidence, 
see  40  AnT.  &  Eng.  R.  Cas.  644,  abstr. 


senger  has  sufficient  title  to  the  property 
stolen  to  enable  him  to  maintain  an  action 
for  its  recovery.  Pullman  Palace  Car  Co. 
v.  Gavin,  58  Am.  &*  Eng:  R.  Cas.  585,  93 
Tenn.  53,  23  S.  W.  Rep.  70. 

Considerations  of  public  policy  require 
that  a  company  operating  a  sleeping  car  at- 
tached to  a  railway  train,  and  used  for  the 
comfort  and  transportation  of  passengers, 
should  use  reasonable  care  to  guard  the 
passengers  from  theft.  When  a  failure  to 
exercise  such  care  results  in  the  loss  by 
theft  of  such  personal  effects  as  a  passenger 
may  reasonably  carry  with  him,  the  sleep- 
ing-car company  is  liable.  Pullman  Palace 
Car  Co.  v.  Pollock,  34  Am.  &*  Eng.  R.  Cas. 
217,  69  Tex.  120,  5  Am.  St.  Rep.  31,  5  5.  IV. 
Rep.  814.— Quoting  Lewis  v.  New  York 
Sleeping  Car  Co.,  28  Am.  &  Eng.  R.  Cas. 
150,  143  Mass.  267.— Quoted  in  Pullman 
Palace  Car  Co,  v.  Matthews,  74  Tex.  654. 

25.  Liability  not  that  of  an  inn- 
keeper.*— A  sleeping-car  company,  so  far 
as  it  renders  service  similar  in  kind  to  an 
innkeeper,  is  subject  to  the  same  liabilities ; 
and  where  an  article  of  wearing  apparel  be- 
longing to  a  passenger  in  one  of  such  cars 
has  been  placed  in  the  care  of  the  porter, 
and  is  stolen  from  the  car,  the  company  is 
liable  therefor.  Pullman  Palace  Car  Co.  v. 
Lowe,  40  Am.  &*  Eng,  R.  Cas.  637,  28  Ned. 
239,  44  A';,  W.  Rep.  226,  6  L.  R.  A.  809. 

The  liability  of  a  palace-car  company  to 
passengers  for  loss  of  articles  which  they 
carry  into  the  cars,  is  not,  in  the  absence  of 
special  contract,  greater  than  that  of  other 
carriers  of  passengers.  Such  companies  are 
not  held  to  the  strict  liabilities  of  innkeep- 
ers. Welch  v.  Pullman  Palace  Car  Co.,  16 
Abb.  Pr.  N.  S.  (JV.  Y.)  352,  i  SAeM.  457. 

Sleeping-car  companies  are  not  liable  as 
innkeepers  for  the  loss  or  theft  of  articles 
from  guests,  for  the  reason  that  passengers 
o«  such  a  train  retain  the  exclusive  posses- 
sion and  control  of  their  valuables.  Pull- 
man Palace  Car  Co.  v.  Gavin,  58  Atn,  &* 
Eng.  R.  Cas.  585,  93  Tenn.  53.  23  S.  W. 
Rep.  70.  Dargan  v.  Pullman  Palace  Car 
Co.,  {Tex.)  26  Am.  <S-  Eng.  R.  Cas.  149. 
Pullman  Palace  Car  Co.  v.  Matthews,  74 
Tex.  654.  12  5.  IV.  Rep.  744. 

26.  Degree  of  care  required.  — 
Sleeping-car  companies  are  bound  to  exer- 

*  Sleeping-car  companies  not  common  car- 
riers ur  innkeepers,  see  note,  26  Am.  St.  Rep. 

332- 


I 

PI 


136 


SLEEPING    AND   PALACE   CAR  COMPANIES,  27. 


J! 

11 


cise  ordinary  care  for  the  security  of  pas- 
sengers' valuables.  Woodruff  S.  &^  P. 
Coach  Co.  V.  Diehl,  9  Am.  A-  Eng.  R.  Cas. 
294,  84  IttJ.  474.  43  ■^'«-  J^'P'  >o2. 

Such  care  to  be  measured  with  reference 
to  the  danger  reasonably  to  be  apprehended. 
Dargan  v.  Pullman  Palace  Car  Co.,  ( Tex.) 
36  Am.  &»  Eng.  A'.  Cas.  149. 

Whether  such  care  was  exercised  under 
the  circumstances  is  a  question  for  the  jurv. 
Pullman  Palace  Car  Co.  v.  Gardner,  16  Am. 
6-  Eng.  A'.  Cas.  324.  3  Penny  p.  (Pa.)  78. 

A  passenger  who  rides  in  a  palace  car  be- 
longing to  a  company  separate  from  the 
railroad  company,  and  who  retains  in  his 
possession  articles  of  apparel,  cannot  hold 
the  palace-car  company  to  any  stricter  lia- 
bility for  loss  than  he  could  the  railroad 
company.  Welch  v.  Pullman  Palace  Car 
Co.,  16  Abb.  Pr.  N.  S.  (N.  V.)  352,  i  Sheld. 
457.~Approving  Tower  v.  Utica  &  S.  R. 
Co..  7  Hill  (N.  Y.)47. 

While  a  sleeping-car  company  is  not 
liable  as  a  common  carrier  or  as  an  inn- 
holder,  yet  it  is  its  duty  to  use  reasonable 
care  to  guard  the  passengers  from  theft ; 
and  if  through  want  of  such  care  the  per- 
sonal effects  of  a  passenger,  such  as  he 
might  reasonably  carry  with  him,  arc  stolen, 
the  company  is  liable.  Pullman  Palace 
Car  Co.  V.  Af  ait  hews,  74  Tex.  654.  12  5.  W. 
Rep.  744. —Quoting  Pullman  Palace  Car 
Co.  V.  Pollock,  69  Tex.  120.  See  also 
Lewis  V.  New  York  Sleeping  Car  Co.,  28 
Am,  &•  Eng.  R.  Cas.  148,  143  Afass.  267,  56 
Am.  Rep.  852,  «.,  9  A^.  E.  Rep.  615. 

27.  Duty  to  provide  n  watclinian. 
— It  is  the  duty  of  the  sloeping-car  com- 
pany to  protect,  by  reasonable  watch,  the 
occupant  of  a  berth  in  its  car  while  asleep, 
in  his  person  and  property,  and  it  is  liable 
to  such  occupant  for  its  negligence  or  want 
of  reasonable  care  in  the  protection  of  his 
personal  goods  and  money.  Woodruff  S. 
&>  P.  Coach  Co.  V.  Diehl,  9  Am.  iS->  Eng.  R. 
Cas.  294,  84  Ind.  474,  43  Am.  Rep.  102.— 
Quoting  Crozier  v.  Boston,  N.  Y.  &  N. 
Steamboat  Co.,  43  How.  Pr.  (N.  Y.)  466. 
Reviewing  Blum  v.  Southern  Pullman 
Palace  Car  Co.,  i  Flipp.  (U.  S.)  100.— Pull- 
man Palace  Car  Co.  v.  Martin,  58  Am.  &» 
Eng.  R.  Cas.  583,  92  Grt.  161,  iS  .V.  E.  Rep. 
364.  Carpenter  v.  New  York,  N.  //.  &^  H. 
R.  Co.,  47  Am.  &>  Eng.  R.  Cas.  421,  124  A^. 
Y.  53,  26  A'.  E.  Rep.  277,  34  .V.  Y.  S.  R. 
854;  affirming  15  A^.  Y.  S.  A'.  345,  14  Daly 
457,  which  reversed  13  A^.  Y.  S.  R.  718. 


Defendant  runs  upon  its  road  sleeping 
cars,  with  the  usual  accommodations.  Plain- 
tiff purchased  and  was  assigned  a  lower 
berth ;  when  he  went  to  bed,  he  placed  his 
pocketbook,  containing  money,  in  the  in- 
side pocket  of  his  vest,  which  he  placed 
under  his  pillow  on  the  side  next  to  the 
window;  the  next  morning  he  found  his 
vest  under  his  pillow  on  the  side  next  to 
tiie  passage-way,  with  his  pocketbook  in 
the  pocket,  but  the  money  had  been  stolen. 
The  upper  berth  was  occupied  by  a  stranger, 
but  was  unoccupied  when  plaintiff  arose  in 
the  morning.  At  one  end  of  the  car  was 
the  porter's  closet.  A  full  view  of  the  pas- 
sage-way of  the  car  could  not  be  had  from 
all  parts  of  the  space  at  that  end.  The 
train  made  a  number  of  stops  at  large  cities 
during  the  night.  The  porter  was  the  only 
employfe  on  the  car ;  he  acted  as  con- 
ductor, and  for  his  own  profit  blackened 
the  passengers'  boots.  The  court  granted 
a  motion  by  defendant  to  dismiss  the  com- 
plaint. Held,  error ;  that  the  evidence  was 
sufficient  to  put  defendant  to  proof  of  the 
care  it  took  of  the  occupants  of  the  sleeper 
on  the  trip  in  question,  and,  in  the  absence 
of  explanation,  it  was  sufficient  to  require 
the  question,  whether  plaintiff's  loss  was 
caused  by  defendant's  negligence,  to  be 
submitted  to  the  jury.  Carpenter  v.  New 
York,  N.  H.  &^  H.  R.  Co.,  47  Am.  6^  Eng. 
A'.  Cas.  421,  124  A^.  1'.  53,  26  A'.  E.  Rep. 
277,  34  A'.  Y.  S.  R.  854 ;  affirming  \^  N.  Y. 
S.  R.  345,  14  Daly  457,  which  reversed  13 
A'.   Y.  S.  R.  718. 

Wheretheregulations  require  a  watchman 
to  stay  in  the  aisle  of  the  car  continuously 
until  danger  is  over,  and  he  goes  out  of  the 
aisle  even  for  a  very  few  minutes,  and  dur- 
ing that  time  a  robbery  occurs,  and  the  jury 
believe  that  if  he  had  been  in  his  pl.ice  of 
observation  it  would  not  have  occurred 
without  detection,  the  company  is  liable. 
The  watching  must  be  continuous  and 
active.  Pullman  Palace  Car  Co.  v.  Gardner, 
16  Am.  &^  Eng.  R.  Cas.  324,  3  Penny  p. 
(Pa.)  78. 

In  an  action  for  a  loss  by  theft  from  a 
passenger  on  a  sleeping  car,  where  the 
evidence  is  conflicting  as  to  whether  the 
company's  servants  kept  proper  guard,  it  is 
proper  to  instruct  that  the  jury  shou/d  find 
for  the  plaintiff  if  they  find  from  the  evi- 
dence that  the  goods  were  stolen  from  him 
through  the  defendant's  carelessness  or 
negligence.    Scalttig  v.  Pullman  Palace  Car 


SLEEPING  AND   PALACE   CAR  COMPANIES,  28-82. 


137 


Co.,  24  Mo.  App.  29.— Following  Florida 
V.  Pullman  Palace  Car  Co.  37  Mo.  App.  598. 
The  duty  of  a  sleeping-car  company  is 
that  of  a  bailee  for  hire,  and  it  is  responsible 
only  for  the  negligence  of  its  servants  in 
guarding  the  property  of  a  passenger  while 
he  is  asleep,  or  while  he  is  necessarily  absent 
from  his  berth.  Root  v.  New  York  C.  Sleep- 
ing Car  Co.,  28  Mo.  App.  199. 

28.  Posting  notice  disclaiming 
liability.— A  notice  posted  in  the  wash 
room  by  which  the  company  seeks  to  avoid 
liability,  if  not  known  to  the  passenger, 
cannot  avail  the  company.  It  appearing 
that  two  larcenies  had  been  committed, 
and  that  the  porter  was  found  asleep  when 
he  ought  to  have  been  on  duty — held, 
sufficient  to  submit  the  case  to  the  jury. 
Lewis  v.  New  York  Sleeping  Car  Co.,  28 
Am.  &>  Eng.  K.  Cas.  148,  143  Mass.  267, 
yd  Am.  Rep.  852,  «.,  9  N.  E.  Rep.  615.— 
Quoted  in  Pullman  Palace  Car  Co.  v. 
Pollock,  34  Am.  &  Eng.  R.  Cas.  217,  69 
Tex.  120,  5  Am.  St.  Rep.  31,  5  S.  W.  Rep. 
814. 

29.  Notice  to  passenger  printed 
on  ticket. — A  Pullman  car  ticket  had 
printed  on  its  face,  "Wearing  apparel  or 
baggage  placed  in  the  car  will  be  entirely 
at  the  risk  of  the  owners."  Plaintiff,  who 
was  riding  on  siich  ticket,  left  his  valise  in 
the  care  of  the  Pullman  porter,  which  was 
lost.  Held:  (1)  that  the  railroad  company 
was  liable  for  the  loss;  (2)  that  plaintiff's 
contract  with  the  Pullman  car  company 
could  not  relieve  the  railroad  company  from 
liability ;  (3)  that  in  a  suit  against  the  rail- 
road company  only  the  condition  printed 
on  the  ticket  was  immaterial.  Louisi'ille, 
N.  Sf*  G.  S.  R.  Co.  v.  Katzenberger,  16  Lea 
(Tenn.)  380,  i  S.  W.  Rep.  44,  57  Am.  Rep. 
232.— Reviewing  Pennsylvania  Co.  v.  Roy, 
102  U.  S.  452. 

30.  Passenger's  duty  to  give  notice 
of  possession  of  valuables.— A  pas- 
senger, having  in  a  pocket  of  his  overcoat 
a  sum  of  money,  gave  the  overcoat  to  the 
porter  without  mentioning  the  money,  and 
the  porter  hung  the  coat  in  the  passenger's 
bertli.  Held,  that  the  money  was  in  his 
own  custody  and  at  his  risk ;  and  the  fact 
that  soon  afterwards  an  accident  overturned 
the  car,  and  the  passenger,  on  making  his 
way  out,  told  the  porter  and  brakemaii  of 
the  railway  company  that  the  money  was  in 
the  car,  put  no  liability  for  the  money  on 
the  company  as  gratuitous  bailee  or  other- 


wise, and  it  was  not  in  such  case  responsible 
for  the  loss  of  the  money.  Hillis  v.  Chi- 
cago, R.  I.  &»  P.  R.  Co.,  i\  Am.  &*  Eng.  R. 
Cas.  108,  72  Iowa  228,  33  N.  IV.  Rep.  643. 

The  company  had,  in  such  case,  a  right 
to  notice,  in  the  outset,  of  this  money,  and 
to  be  paid  accordingly  if  responsibility  was 
to  arise  in  case  of  accident ;  and  the  occur- 
rence of  the  accident  did  not  change  the 
rule  as  to  the  degree  of  care  required,  even 
on  the  theory  of  a  gratuitous  bailment. 
Hillis  V.  Chicago,  R.  /.  &*  P.  R.  Co..  31  Am. 
<S-  Eng.  R.  Cas.  108,  72  fowa  228,  33  A^.  IV. 
Rep.  643. 

31.  Property  stolen  by  employes.* 
—The  owners  of  sleeping  cars,  who  receive 
pay  in  advance  from  lodgers  merely  for  the 
sleeping  accommodation  afforded  by  their 
cars,  are  not  liable  as  innkeepers  or  car- 
riers for  money  that  may  be  stolen  from  the 
person  of  such  lodgers  on  their  cars.  Pull- 
man Palace  Car  Co.  v.  Smith,  73  ///.  360, 
9  Am.  Ry.  Rep.  328.— QUOTED  IN  Steam 
V.  Pullman  Car  Co.,  8  Ont.  171.—  Woodruff 
S.  &*  P.  Coach  Co.  v.  Diehl,  9  Am.  &»  Eng. 
R.  Cas.  294,  84  Ind.  474, 43  Am.  Rep.  102. 

If  the  property  of  a  passenger  be  stolen 
by  a  servant  or  agent  of  the  company 
charged  with  the  duty  of  watching  and  pro- 
tecting such  property,  the  company  is  re- 
sponsible. Pullman  Palace  Car  Clo.  v. 
Gavin,  58  Am.  &*  Eng.  R.  Cas.  585,  93 
Tenn.  53,  23  S.  IV.  Rep.  70. 

The  fact  that  a  passenger  left  his  money 
in  his  berth,  and  thereby  tempted  the  em- 
ployes of  the  company  to  steal  it,  does  not 
release  the  company  from  its  obligation  to 
protect  passengers  against  the  employes' 
wrongful  acts.  Pullman  Palace  Car  Co.  v. 
Matthews,  74  Tex.  654,  12  S.  IV.  Rep.  744. 

32.  Contributory  negligence,  f  — 
Plaintiff  was  a  passenger  in  one  of  defend- 
ant's parlor  cars,  and  when  about  to  go 
from  the  car  for  the  purpose  of  obtaining 
refreshments,  left  her  reticule  upon  the  sill 
of  the  car  window.  During  her  absence  it 
was  stolen.  Held,  that  plaintifl  was  guilty 
of  negligence  which  contributed  to  her  loss, 
and  the  company  was  not  liable.  Whitney 
v.  Pullman  Palace  Car  Co.,  28  Am.  &•  Eng. 
A".  Ciis.  147,  143  Mass.  243,  9  N.  E.  Rep.  619. 

If  a  passenger,  on  leaving  a  sleeping  car 

*  Liability  of  sleeping-car  company  for  theft 
by  servants,  see  note,  26  Am.  St.  Rbp.  336. 

f  When  contributory  negligence  defeats  action 
against  sleeping-car  companies  for  loss  of  prop- 
erty, etc.,  see  note,  26  Am.  St.  Rep.  336. 


ii  i\ 


138 


SLEEPING   AND   PALACE   CAR   COMPANIES,  33,  34. 


ii 


at  his  destination,  negligently  leaves  his 
pocketbook  containing  money  on  the  car, 
the  sleeping-car  company  is  not  responsible 
for  the  property  so  left,  if  it  be  stolen  by 
some  one  not  in  the  employ  of  the  company, 
unless  an  agent  of  the  company  discovered 
before  the  theft  that  such  property  h;id  been 
left.  Itlinoit  C.  R.  Co.  v.  Handy,  63  Miss. 
609. 

A  passenger  on  retiring  placed  his  clothes 
in  the  unoccupied  upper  berth,  and  during 
the  night  they  were  stolen.  Jlelii,  that  in 
the  absence  of  evidence  that  the  place  se- 
lected was  an  unusual  or  dangerous  place 
for  a  deposit  of  a  passenger's  wearing  ap- 
parel or  that  he  knew,  or  had  reason  to 
know,  that  it  could  not,  or  would  not,  be  as 
ctTectually  guarded  there,  as  in  any  other 
place  where  he  might  have  deposited  it, 
there  was  no  warrant  whatever  for  with- 
drawing the  case  from  the  consideration  of 
the  court,  sitting  as  a  jury,  on  the  ground 
of  contributory  negligence.  Florida  v. 
Pullman  Palace  Car  Co.,  37  Mo.  App.  598. 

If  a  loss  be  chargeable  to  the  negligence 
of  a  sleeping-car  company's  servants  in 
guarding  the  property  of  a  passenger,  there 
can  be  no  recovery  if  the  passenger's  negli- 
gence contril-ated  directly  to  the  loss.  Root 
V.  New  York  C.  Sleeping^  Car  Co.,  28  Mo. 
App.  199. 

A  passenger  who,  without  notice  to  the 
company's  servants,  leaves  in  his  berth,  in 
an  exposed  condition,  a  large  sum  of  money 
which  could  easily  be  carried  on  his  person, 
is,  as  a  matter  of  law,  guilty  of  contributory 
negligence.  Root  v.  Netv  York  C.  Sleeping 
Car  Co.,  28  Mo.  App.  199. 

33.  AdniiNsibility  of  evidence.— 
The  declarations  of  a  third  person  are  inad- 
missible, although  made  concerning  a  fact 
which  would  be  relevant  if  proved  by  a  com- 
petent witness.  So  where  a  sleeping-car 
passenger  sues  for  being  robbed  in  the 
night,  the  declarations  of  the  car  porter  as 
to  his  suspicions  of  two  men  who  left  the 
car  during  the  night,  are  not  admissible. 
Bevis  V.  Baltimore  (S-  O.  A".  Co.,  26  Mo.  App. 
19.— Reconciled  in  Hampton  v.  Pullman 
Palace  Car  Co.,  42  Mo.  App.  134. 

It  is  the  duty  of  the  servants  of  a  sleep- 
ing-car company  to  keep  a  reasonable  watch 
over  tlie  hand  baggage  of  its  passengers, 
and  to  use  reasonable  diligence  to  prevent 
its  loss  by  theft ;  and  in  an  action  for  lost 
baggage  it  is  proper  to  admit  evidence  as  to 
where  the  conductor  placed  the    baggage 


and  what  he  said  while  so  doing.  Hampton 
V.  Pullman  Palace  Car  Co.,\2  Mo.  App.  134. 
—Distinguishing  McDermott  v.  Hanni- 
bal &  St.  J.  I*.  Co.,  73  Mo.  516;  Adams  v, 
Hannibal  &  St.  J.  K.  Co.,  74  Mo.  553. 
Reconciling  Bevis  v.  Baltimore  &  O.  R, 
Co.,  26  Mo.  App.  19.  Reviewing  Morse  v. 
Connecticut  River  R.  Co..  6  Gray  (Mass.) 
450 ;  Lane  v.  Boston  &  A.  R.  Co.,  11 3  Mass. 

455- 

While  evidence  to  the  effect  that  another 
passenger  was  robbed  on  the  same  night 
and  in  the  same  sleeping  car  as  the  plaintiff 
is  not  relevant  to  prove  that  the  plaintiff 
was  in  fact  robbed,  it  is  admissible  as  bear- 
ing on  the  absence  of  proper  care  by  the  de- 
fendant company.  Pullman  Palace  Car  Co. 
V.  Gardner,  16  Am.  &*  Eng.  R.  Cas.  324,  3 
Pennyp.  (Pa.)  78. 

Declarations  of  the  porter  left  in  the  care 
of  a  car  by  the  company  that,  during  the 
night  in  which  the  robbery  occurred,  he 
went  to  the  toilet  stand,  from  which  the 
berths  were  not  visible,  to  black  the  boots 
of  a  passenger,  are  admissible.  Pullman 
Palace  Car  Co.  v.  Gardner,  16  Am.  &•  Eng. 
R.  Cas.  324,  3  Pennyp.  (Pa.)  78. 

A  berth  check,  given  to  the  plaintiff  when 
he  entered  the  car  in  exchange  for  his  ticket, 
and  which  contained  the  notice,  "  Wearing 
apparel  or  baggage  placed  in  the  car  will  be 
entirely  at  the  owner's  risk,"  is  properly  ex- 
cluded from  the  evidence.  Pullman  Palace 
Car  Co.  v.  Gardner,  16  Am.  &*  Eng.  R.  Cas. 
324,  3  Pennyp.  (Pa.)  78. 

34.  Biirclcii  of  proof— Prima  fade 
case. — Proof  of  loss  of  the  property  of  a 
sleeping-car  passenger,  under  circumstances 
which  tend  to  show  that,  but  for  the  defend- 
ant's negligence,  the  loss  would  not  have 
occurred,  is  prima  facie  evidence  of  negli- 
gence, and  shifts  the  burden  of  proof.  Bevis 
V.  Baltimore  &*  O.  R.  Co.,  26  Mo.  App.  19. 
Pullman  Palace  Car  Co.  v.  Freudenstein,  58 
Am.  &-  Eng.  R.  Cas.  589.  3  Colo.  App.  540, 
34  Pac.  Rep.  578. 

But  the  presumption  thus  raised  that  the 
company  was  negligent  is  rebutted  by  the 
uncontradicted  testimony  of  the  porter  in 
charge  of  the  car  that  he  maintained  an  ab- 
solute continuous  watch  during  the  entire 
period  within  which  the  loss  must  have  oc- 
curred. Pullman  Palace  Car  Co.  v.  Freu- 
denstein, 58  Am.  &-  Eng.  R.  Caf.  589,  3  Colo. 
App-  540,  34  Pac.  Rep.  578. 

Gross  negligence  is  not  to  be  presumed. 
Hence  it  was  not  error  to  refuse  to  charge 


SLEEPING  AND   PALACE  CAR   COMPANIES,  85-87. 


139 


the  jury  that  if  they  found  that,  by  reason 
of  the  accident,  the  money  passed  into  the 
possession  and  control  of  the  defendant,  as 
detailed  by  tiie  evidence,  then  the  burden  of 
proof  was  upon  the  defendant  to  show  that 
the  failure  to  return  the  money  was  not  by 
reason  of  its  gross  negligence.  If  plaintiff 
relied  on  the  theory  of  a  gratuitous'  ail- 
ment, he  should  have  both  averred  and 
proved  gross  negligence.  Hillis  v.  Chicago, 
R.  I.  &>  P.  R.  Co.,  31  Am,  Sf  Eng.  R.  Cas. 
108,  73  Iowa  228,  33  A'.  W,  Rep.  643. 

//  seems  that  the  mere  proof  of  the  loss 
of  money  by  a  passenger  while  occupying  a 
berth  in  such  a  car,  docs  not  make  out  a 
prima  facie  case  against  the  corporation  ; 
some  further  evidence  tending  to  show  neg- 
ligence on  its  part  must  be  given.  Carpen- 
ter v.  A'w  York,  N.  H.  6-  //.  R.  Co.,  47 
Am,  &*  Eng.  R.  Cas.  421,  124  A'.  V.  53,  26 
N.  E.  Rep.  277,  34  N.  V.  S.  R.  854  ;  a^rm- 
ing  isN.  v.  S.  R.  345,  14  Da/j'  457. 

It  may  be  conceded  that  sleeping-car 
companies  owe  greater  duties  to  their  cus- 
tomers than  ordinary  railroad  companies, 
still  they  are  only  liable  for  property  lost 
while  under  the  control  of  the  passengers 
upon  sonic  proof  of  fault  or  negligence  on 
their  part.  Mere  proof  of  loss  raises  no 
presumption  of  negligence.  Tracy  v.  Pu/i- 
man  Palace  Car  Co.,  67  Now.  Pr.  (N.  V.) 
154.— Distinguishing  Pullman  Palace  Car 
Co.  V.  Gardner,  29  Alb.  L.  J.  8;  Woodruff 
S.  &  P.  Coach  Co.  V.  Diehl,  84  Ind.  474. 

Before  going  to  sleep  plaintiff  put  his 
pocketbook  containing  his  money  in  his 
trousers  pocket,  rolled  up  his  trousers  and 
put  his  suspenders  around  them,  and  then 
placed  them  under  his  pillow  next  the  wall. 
When  he  was  called  before  arriving  at  his 
place  of  destination,  he  discovered  that  his 
pocketbook  and  money  were  gone.  No 
negligence  in  the  defendant  was  shown. 
hM,  that  no  liability  attached  to  defend- 
ant. Steam  v.  Pullman  Car  Co.,  21  Am.&' 
Eng.  R.  Cas.  443,  8  Ont.  171.— Quoting 
Pullman  Palace  Car  Co.  v.  Gardner,  29  Alb. 
L.  J.  8 ;  Pullman  Palace  Cai-  Co.  v.  Smith, 
73  111.  360,  24  Am.  Rep.  258. 

35.  Mca.siirc  of  dnmnges.— If  a  pas- 
senger in  a  sleeping  car  loses  money  or 
goods,  by  reason  of  the  negligence  of  the 
company  in  not  keeping  a  watch  during  the 
night,  the  company  is  liab'e  for  such  articles 
as  are  usually  carried  by  a  passenger  about 
his  person,  and  for  money  reasonably  neces- 
sary for  traveling  expenses.    Blum  v.  South- 


ern Pullman  Palace  Car  Co.,  1  Flipf.  {U.  S.) 
500.  Hampton  v.  Pullman  Palace  Car  Co., 
42  Mo.  App.  134. 

But  if  there  be  no  evidence  as  to  what  is 
reasonably  necessary,  only  nominal  damages 
can  be  recovered.  Wilson  v.  Baltimore  &* 
O.  R.  Co.,  32  Mo.  App.  682.— Following 
Root  V.  New  York  C.  Sleeping  Car  Co.,  38 
Mo.  App.  199. 

But  not  for  a  sum  of  money  (several 
thousand  dollars)  carried  for  a  purpose 
other  than  the  wants  of  his  journey.  Bar- 
rott  V.  Pullman  Palace  Car  Co.,  52  Am.  &* 
Eng.  R.  Cas.  498,  51  fed.  Rep.  796.  Illinois 
C.  R.  Co.  V.  Handy,  63  Miss.  609. — Approv- 
ing Greenfield  First  Nat.  Bank  v.  Marietta 
&  C.  R.  Co.,  20  Ohio  St.  2sg.— Root  v.  New 
York  C.  Sleeping  Car  Co.,  28  Mo.  App.  199. 
—Followed  in  Wilson  v.  Baltimore  4  O. 
R.  Co.,  32  Mo.  App.  682. 

III.  LIABIinT  OF  BAILBOAS  OOMPAirT. 

30.  Generally.*— Where  a  passenger 
who  had  a  second-class  ticket  was  ejected 
from  a  sleeping  car  in  accordance  with  a 
rule  of  the  company,  the  act  of  expulsion 
was  that  of  the  railroad  company  and  not  of 
the  sleeping-car  company,  though  the  sleep- 
ing-car conductor  and  porter  may  have  as- 
sisted the  railroad  employes.  Pullman 
Palace  Car  Co.  v.  Lee,  49  ///.  App.  75. 

A  railway  company  is  responsible  for  in- 
juries received  by  one  of  its  passengers  at 
the  hands  of  a  porter  of  a  sleeping  car  form- 
ing part  of  the  railway  coni;pany's  train,  if  it 
appears  that  he  was  not  a  ' :  ^spasser  on  that 
car.  Williams  \.  Pullman  Palace  Car  Co., 
33  Am.  &*  Eng.  R.  Cas.  414,  40  La.  Ann. 
417,  4  So.  Rep.  85.— Quoting  Pennsylvania 
Co.  V.  Roy,  102  U.  S.  458. 

37.  For  uegligeiice  of  car  com- 
paiiy.f — The  general  rule  seems  to  be  that 
a  railway  company  which  adopts  a  sleeping 
car  belonging  to  another  company  as  a  part 
of  its  train  is  liable  for  injuries  to  passengers 
by  reason  of  any  defects  in  the  car,  as  well 
as  the  company  owning  the  car.  Pennsyl- 
vania Co.v.  Roy,  102  [/,  .S.  451.     Kinsley  v. 

*  Liability  to  passenger  on  sleeping  car,  of 
both  sleepinfr-car  company,  and  railroad  com- 
pany, see  note,  31  L.  R.  A.  289. 

Should  railway  companies  do  their  own  sleep- 
ing and  parlor  car  business,  see  note,  33  Am.  & 
Eng.  R.  Cas.  570. 

f  Lial^ility  of  sleeping-car  company  or  railway 
company  in  running  sleeping  cars,  for  negligence 
towards  passengers,  see  note,  26  Am.  St.  Rkp. 
334. 


140 


SLEEPING   AND   PALACE   CAR  COMPANIES,  38. 


Lake  Shore  &•  M.  S.  A'.  Co.,  IJJ  Mass.  S4- 
Dwinelle  v.  New  York  C.  &"  H.  />'.  />'.  Co., 
44  //«<.  &*  Eiif^.  R.  Cas.  384,  120  JV.  Y.  117, 
17  Am.  St.  Rep.  611,  24  N.  E.  Rep.  319,  30 
A'.  )'.  .V.  R.  578,  8  L.R..\.  224;  reversing  45 
////«,  139,  9  A'.  K.  .V.  A*.  838.  Louisville,  N. 
&•  G.  S.  R.  Co.  V.  Katzenberger,  16  Z,*(i 
(Tinn.)  3«o,  57  ^w.  AV/.  232. 

The  iRj;ligcncc  of  Pullman  car  employes 
as  to  any  matters  mvolving  the  safety  ur 
security  of  passengers  wliilc  l)eing  conveyed, 
is  the  negligence  of  the  riiilroad  company. 
ll'illiiiiHs  V.  Pullman  Palme  Car  Co.,  33 
/liii.  &^  Eiig.  R.  Cas.  414,  40  La.  Ann.  417, 
4  .St;.  Ri-p.  85.  -  yiiDTiNO  Thorpe  v.  New 
York  C.  &  H.  R.  K.  Co.,  76  N.  Y.  402. 

On  |>rouf  of  injury  sustained  l)y  a  passen- 
ger on  a  railroad  train,  by  the  fall  of  a  berllj 
in  a  sleeping  car,  and  that  the  passenger 
was  without  fault,  a  presumption  arises,  in 
the  absence  of  other  proof,  that  the  niilroad 
company  is  liable.  Clevilami,  C,  C.  &*  J. 
R.  Co.  V.  U'ahat/i,  8  Am.  &•  Eng.  R.  Cas. 
371,  38  0/1/0  .SV.  461,  43  Am.  Rep.  433.— 
DisTiNr.uisHiNO  Pittsburgh,  C.  &  St.  L.  R. 
Co.  V.  McMillan,  37  Ohio  St.  554.  FoL- 
l.dWiNG  Iron  R.  Co.  v.  Mowery,  36  Ohio 
St.  (i8. 

.'JS.  ScrvaiitH  of  car  company  are 
HurvaiitH  of  railroad  company.  —The 
porter  and  other  employes  of  a  sleeping  car 
are,  in  the  performance  of  the  duties  and 
obligations  of  the  railroad  company  under 
its  contract  to  carry  .i  passenger,  servants  of 
the  railroad  company.  Dwinelle  v.  Netv 
York  C.  Sf  H.  R.  R.  Co.,  44  Am.  Sf  Eng.  R. 
Cas.  384,  120  N.  v.  117,  24  A^.  E.  Rep.  319, 
30  A',  y.  S.  R.  578,  8  L.  R.  A.  224 ;  revers- 
in^i;  45  Hun  135,  9  A^.  Y.  S.  R.  838.— Fol- 
i.owiNc.  Thorpe  v.  New  York  C.  &  H.  R. 
R.  Co.,  76  N.  Y.  406;  Pennsylvania  Co.  v. 
Roy,  102  U.  S.  4Si.— Pennsylvania  Co.  v. 
Ri'y,  I  Am.  &*  Eng.  R.  Cas.  225,  102  [/.  S. 
451. -Explained  in  Cleveland,  C.  C.  &  I. 
R.  Co.  V.  VValrath,  8  Am.  &  Eng.  R.  Cas. 
371.  38  Ohio  St.  461,  43  Am.  Rep.  433. 
i'oi, LOWED  IN  Dwinelle  7/.  New  York  C.  & 
if.  R.  \i.  Co.,  44  Am  &  Eng.  R.  Cas.  384, 
no  N.  Y.  117,  24  N.  E.  Rep.  319,  30  N.  Y. 
S.  R.  578,  8  L.  R.  A.  224.  Quoted  in 
Williams?;. Pullman  Palace  Car  Co., 33  Am. 
&  Eng.  R.  Cas.  414,40  La.  Ann.  4i7;Madden 
7'.  Misissouri  Pac.  R.  Co.,  50  Mo.  A  pp.  666. 
Reviewed  in  Louisville,  N.  &  G.  S.  R.  Co. 
»/.  Katzcnbcrger,  16  Lea  (Tcnn.)  380,  57  Am. 
Rep.  2^2.— JVi/liamsv.  Pullman  Palace  Car 
Co.,  II  Am.  S-^  Eng.  R.  Cas.  414,  40  A,/.  ./;/;/. 


417, 4  So.  Rep.  85.  TAorpe  v.  Neiv  York  C.  &* 
H.  R.  R  Co.,  76  A'.  Y.  402,  32  Am.  Rep.  325  ; 
affirming  13  //««  70.  — Distincui.shed  in 
Uwinelle  v.  New  York  C.  &  H.  R.  R.  Co.,  9 
N.  Y.  S.  R.  838;  Ulrich  v.  New  York  C.  * 
H.  R.  R.  Co.,  34  Am.  &  Eng.  R.  Cas.  350, 
108  N.  Y.  80.  15  N.  E.  Rep.  60,  13  N.  Y.  S. 
R.  120.  Followed  in  Dwindle  v.  New 
York  C.  &  H.  R.  R.  Co.,  44  Am.  &  Eng.  R. 
Cas.  384,  120  N.  Y.  117,  24  N.  E.  Rep.  319, 
30  N.  Y.  S.  R.  578,  8  L.  R.  A.  224.  Quoted 
IN  Williams  z'.  Pullman  Palace  Car  Co.,  33 
Am.  &  Eng.  R.  Cas.  414,  40  La.  Ann.  417, 
4  So.  Rep.  85. 

It  appeared  that  one  or  more  of  the  seats 
in  the  ordinary  cars  were  occupied  by  pas- 
sengers' luggage.  A  number  of  passengers 
were  standing  up  in  the  passage-ways,  and 
it  did  not  appear  that  the  seats  so  occupied 
by  luggage  would  have  been  sufBcient  for 
the  standing  passengers.  Held,  that  it  was 
not  the  duly  of  plaintifl,  under  the  cir-. 
cumstances,  to  have  asked  the  train  con- 
ductor for  a  seat  before  passing  into  the 
drawing-room  car.  Thorpe  v.  New  York 
C.  &•  II.  R.  R.  Co.,  76  N.  y.  402,  32  Am. 
Rep.  325  ;  affirming  13  Nun  70, 

A  passenger,  by  train  of  a  railroad  com- 
pany, traveling  in  the  coach  of  a  sleeping- 
car  company,  may  properly  assume,  in  the 
absence  of  notice  to  the  contrary,  that  the 
whole  train  is  under  one  management,  and 
in  such  case,  where  he  sustains  injury  by 
the  negligence  of  one  in  the  employ  of  tlie 
sleeping-car  company,  he  may  maintain  an 
action  against  the  railroad  company.  What 
the  effect  of  such  notice  would  be  is  not 
determined.  Cleveland,  C,  C.  &*  J.  R.  Co. 
v.  U'alrath,  8  Am.  &*  Eng.  R.  Cas.  371,  38 
Ohio  Si.  461.  4i  Am.  Rep.  433.— Explain- 
ing Pennsylvania  Co.  v.  Roy,  102  U.  S.  451. 
Quoting  Southern  Exp.  Co.  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.,  10  Fed.  Rep.  210.— Dis- 
tinguished IN  Pennsylvania  R.  Co.  v. 
MacKinney,  37  Am.  &  Eng.  R.  Cas.  153,  124 
Pa.  St.  462. 

The  obligation  of  the  company  in  such  a 
case,  being  independent  of  any  contractual 
relations,  is  governed  by  the  general  princi- 
ples of  the  law  of  master  and  servant  com- 
mon to  all  systems  of  law,  and  formulated 
in  Louisiana  Civil  Code  as  extending  to  all 
"  damages  occasioned  by  their  servants  in 
the  exercise  of  the  functions  in  which  they 
are  employed."  IVilliams  v.  Pullman  Pal- 
ace Car  Co.,  33  Am.  &^  Eng.  R.  Cas.  407,  40 
La.  .'Inn.  87,  3  So.  Rep.  631. 


I 

( 


SLIGHT   NEGLIGENCE— SOUTH   CAROLINA   R.   CO.,  1.        141 


SLIGHT  NEGLIQENCZ. 
Liability  of  carrier  of  paaungen  for,  see  Car- 

HIACK  <IP  PA!sSENUKRS,    140. 

Of  person  injured,  rule  as  to,  see  Contribu- 
tory Neuliuknce,  '2*2, 


SMOKE. 

As  an  element  of  damages,  see  Streets  and 
IluiKWAYs,  2287. 

— to  abutting  owner,  see  Ele- 

VATKD  Railways,  157-15U. 

land  damages,  see  Eminent  Do- 
main, 720. 

Evidence  of  damage  by,  in  eminent  domain 
proceedings,  see  Eminknt  Domain,  (112. 

from,  sec  Stueets  and  IIioiiwavs, 

270. 

Measure  of  damages  for,  see  Eminent  Do- 
main, 1  H>7. 

Obstruction  of  view  by,  effect  of,  on  duty  to 
look  and  listen,  sec  Crossin(;s,  Injuries, 
etc.,  ap,  2«;I. 

Right  of  abutting  owner  to  damages  for,  see 

Si'REKTS  AND  IlKillWAYS,  256. 

When  deemed  a  nuisance,  Fee  Nuisance,  5. 


SNOW. 

Duty  to  remove  from  cattle-guards,  see  Ani- 
mals, Injuries  to,  KMI. 

Effect  of,  on  duty  to  look  and  listen,  see 
Ckossincs,  Injuries,  eti-.,  at,  .104. 

Injury  to  employe  by,  liability  of  company, 
see  Employes,  Injuries  to,  82. 


SNOW  AND  ICE. 

In  cattle-guards,   liability  for,  see  Cattle- 

CUARliS,  18. 

Liability  for  negligence  in  removing  from 
track,  see  Street  Railways,  317. 

Negligence  in  throwing,  from  track  to 
street,  see  Street  Railways,  350. 

On  sidewalk,  liability  of  company  for  inju- 
ries caused  by,  see  Streets  and  High- 
ways, 381. 

—  steps  or  platform,  injuries  caused  by,  see 
Elevated  Railways,  212. 

Ordinance  requiring  removal  of,  see  Street 
Railways,  273. 

Thrown  from  track,  obstruction  of  street  by, 
see  Street  Railways,  1 74,  1 82. 


SNOW  FLOWS. 
Assumption  of  risk  in  use  of,  see  Employes, 
Injuries  to,  201. 


Alleging  loss  of,  in  action  for  causing  death, 
see  Death  iiv  WROMiFUL  Act,  134. 

Of  child,  damages  to  parent  for  loss  of,  see 
Death  hy  Wroncjeul  Act,  407. 

—  husband,  damages  to  wife  for  loss  of,  see 

Death  iiy  Wronceul  Act,  307. 

—  wife,  measure  of  damages  to  husband  for 

loss  of,  see  Death  by  Wronoful  Act, 
402. 


SOIL. 

Removal  of,  from  right  of  way,  see  Right  or 
Way,  20. 


SOUTH  CAROLINA. 

Constitutionality  of  statutes  of,  as  to  mu- 
nicipal aid  for  railways,  see  Municipal 
and  Local  Aid,  48. 

relative  to  condemnation  of  land, 

see  Eminent  Domain,  43. 

—  —  tax  laws  of,  see  Taxation,  45. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 
20. 

Deductions  for  benefits  under  condemnation 
laws  of,  see  Eminent  Domain,  752. 

Degree  of  care  required  from  company  under 
stock  law  of,  see  Animals,  Injuries  to, 
60. 

Dispensary  act  of,  see  Intoxicating  Liquors, 
3. 

Injuries  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  250. 

Operation  of  statute  of,  giving  right  of  action 
for  causing  death,  see  Death  by  Wrong- 
ful Act,  31. 

Plaintiff's  pleadings  need  not  negative  con- 
tributory nsgligence  in,  see  Contribu- 
tory Negligence,  05. 

Review  of  town-bonding  proceedings  by 
mandamus  in,  see  Municipal  and  Local 
Am,  453. 

Statute  of,  as  to  defective  crossings,  see 
Crossings,  Injuries,  etc.,  at,  33. 

regulating  liability  for  injuries  caused 

by  fire,  see  Fires,  14. 

Taxation  in  aid  of  railways  in,  see  Munici- 
ciPAL  AND  Local  Aid,  425. 

Termination  of  initial  carrier's  liability  un- 
der statute  of,  see  Carriage  of  Mer- 
chandise, 019. 


SOCIETY. 
Action  by  husband  for  loss  of,  see  Husband 
and  Wife,  17. 


SOUTH  CABOLINA  B.  GO. 

1.  Bight  to  extend  road.— The  com- 
pany has  the  right  under  its  charter  to  ex- 
tend its  road  to  Boundary  street  in  the  city 
of  Charleston,  by  running  it  over  the  lands 
of  private  individuals  against  their  consent. 


m  SOUTH  CAROLINA   R.   CO.,  S.-SOUTHERN    PAC.   R.   CO.,  1-3. 


m 


f  j< 


and  to  have  ihoie  lands  valued  by  commis- 
sioners appointed  by  the  court.  £x  parte 
South  Carolina  /»'.  Co.,2  Kkh.  (So.  Car.)  434- 
2.  Service  of  process  on.— The  com- 
pany may  be  made  a  party  to  a  suit,  by 
service  of  a  writ  on  its  presider.t,  in  any 
district  wliere  the  plaintiff  resides  or  the 
cause  of  action  accrues  ;  and  its  appearance 
may  be  enforced,  when  necessary,  by  a  dt's- 
trtHgas  on  its  property  in  such  district. 
Glaize  v.  South  Carolina  R.  Co.,  i  Strobh. 
(So.  Car.)  70. 


Ril 


SOVTH  DAKOTA. 
Aiiestment  and  levy  of  taxes  in,  see  Taxa* 

TION,  281. 

Operation  of  statute  of,  givingright  of  action 
for  ca.^sing  death,  see  Death  bv  Wrong- 
ful Act,  32. 

SOUTHESir  PACIFIC  R.  CO. 
Federal  grants  to,  see  Land  Grants,  84-01. 

1.  Coustruction  of  statutes.  —  Cal. 
Act  of  April  4,  1870,  authorizing  said  com- 
pany to  change  the  line  of  its  road,  accept 
the  congressional  grant  of  land,  and  con- 
struct its  road  as  provided  in  the  act  incor- 
porating the  Atlantic  &  Pacific  company, 
was  not  in  violation  of  the  state  Const,  art. 
4>  §  3 >.  providing  that  corporations  "shall 
iitH  be  created  by  special  act,  except  for 
municipal  purposes."  Sou/hern  Pac.  R.  Co. 
V.  Orton,  6  Sawy.  ( U.  S.)  1 57. 

Neither  was  said  act,  by  giving  the  com- 
pany authority  to  change  the  line  of  its 
road,  an  act  creating  a  corporation  in  whole 
or  in  part,  nor  was  it  the  creation  of  a  new 
corporate  power.  Southern  Pac.  Ji.  Co.  v. 
OrtoH,  6  Sawy.  {U.  S.)  157. 

Amended  articles  of  association  were 
filed  by  the  company  in  pursuance  of  Cal. 
Act  of  March  i,  1870,  applicable  to  all  cor- 
porations before  created,  or  to  be  there- 
after created.  Held,  that,  even  if  the  act  of 
April  4  were  void,  the  company  had  full 
authority  to  build  the  road  under  the  act  of 
March  i,  and  the  amended  articles  of  asso- 
ciation filed  in  pursuance  of  its  provisions. 
Southern  Pac.  K.  Co.  v.  Orton,  6  Sawy. 
{U.S.)  in. 

2.  The  road  intended.— The  road  to 
aid  the  construction  of  which  a  land  grant 
was  made  by  Act  of  Congress  of  July  27, 
1866,  incorporating  the  Atlantic  &  Pacific 
R.  Co.,  was  intended  to  be  a  road  connect- 
ing with  the  contemplated  Atlantic  &  Pa- 


cific road  at  such  point  on  said  road,  near 
the  intersection  of  the  thirty-fifth  parallel 
of  latitude  and  the  eastern  line  of  Cali- 
fornia, as  the  Southern  Pacific  road  should 
deem  must  suitable  for  a  railroad  line  from 
said  point  of  connection  to  San  Francisco, 
the  point  and  the  line  thence  to  San  Fran- 
cisco to  be  determined  and  located  by  the 
Southern  Pacific  company.  Southern  Pac. 
£.  Co.  v.  Orton,  6  Sawy.  (U.  S.)  157. 

The  line  of  the  road  designated  on  the 
plat  thereof  filed  by  said  company  in  the 
office  of  the  commissioner  of  the  general 
land  office  on  Jan.  3,  1867,  is  properly  lo- 
cated under  said  act.  Southern  Pac.  H.  Co. 
V.  Orton,  6  Sawy.  (C/.  S.)  157. 

3.  Consolidatiou.— Act  of  Congress  of 
March  3,  1871,  authorized  the  company  in 
California,  subject  to  the  laws  of  that  state, 
to  construct  a  certain  railroad,  and  granted 
it  certain  lands.  The  company,  as  it  then 
existed,  accepted  said  grant,  and  filed  its 
plat  of  definite  location  in  the  proper  office 
August  12,  1873.  Said  company,  as  author- 
ized by  the  laws  of  California,  consolidated 
with  other  companies  under  the  name  of 
the  Southern  Pacific  railroad  company,  a 
part  of  its  object  being  to  construct  the 
railroad  mentioned  in  said  act.  The  con- 
solidated company  built  the  road,  as  re- 
quired, and  the  road  was  accepted  by  the 
president,  and  has  performed,  to  the  satis- 
faction of  the  government,  all  the  services 
required  of  it  under  said  act.  //eld,  that 
said  consolidated  company,  if  not  techni- 
cally, is  substantially,  the  same  company  to 
which  said  act  referred.  United  States  v. 
Southern  Pac.  R.  Co.,  51  Am.  6-  Etig.  R. 
Cas.  331,  46  Fed.  Rep.  683.— Approving 
Southern  Pac.  R.  Co.  v.  Poole,  12  Sawy. 
(U.  S.)  544,  32  Fed.  Rep.  451  ;  United  States 
V.  Southern  Pac.  R.  Co.,  45  Fed.  Rep.  596. 

Pursuant  to  state  authority,  recognized 
by  and  made  a  part  of  the  congressional 
grant  of  March  3,  1871,  the  conipany,  April 
15,  1 87 1,  filed  amended  articles  of  incorpo- 
ration ;  and  August  12,  1873,  filed,  together 
with  the  Southern  Branch,  articles  of  amal- 
gamation and  consolidation,  //eld,  that, 
while  in  one  sense  a  new  corporation  was 
formed,  each  was  substantially  and  practi- 
cally the  same  company  mentioned  in  the 
acts  of  congress,  and  was  so  recognized  by 
congress,  and  that  the  articles  of  amend- 
ment, amalgamation,  and  consolidation  were 
authorized  by  congressional  as  well  :is  by 
state  legislation,    UniUd  Stcttts  v.  Southern 


% 


SOUTHERN  PAC.  R.  CO.,  4, 5.— SPECIAL  PLEA. 


143 


Pae.  R.  Co.,  51  Am.  6-  Etig.  R.  Cas.  331,  46 
Fed.  Rep.  683. 

4.  Mortgage  of.  —  Plaintiff  company 
conveyed  its  lands  to  trustees  to  secure 
first  ihortgage  bonds,  in  the  usual  form  A 
a  railroad  mortgage,  with  a  condition  of  d;- 
feasance,  and  reserving  to  the  company  Liie 
right  to  the  exclusive  management  and 
control  of  the  lands,  with  only  the  right  to 
the  trustees  to  enter  upon  a  default.  Held, 
that  this  was  a  mortgage,  under  the  Cali- 
fornia Code,  and  the  right  of  possession 
until  a  default  remained  in  the  company. 
Southern  Pac.  R.  Co.  v.  Doyle,  1 1  Fed.  Rep. 
253, 8  Sawy.  (£/.  S.)  60.— QUOTING  Piatt  v. 
Union  Pac.  R.  Co.,  99  U.  S.  57. 

6.  Freight  rates  on.  —  The  rate  for 
freight  to  which  the  company  is  limited  by 
its  charter  has  no  reference  to  any  road  ex- 
cept that  which  the  company  is  authorized 
to  build  and  operate  in  Texas ;  and  a  charge 
of  freight,  in  excess  of  the  limits  prescribed 
by  its  cliarter,  over  a  road  which  the  com- 
pany owns  and  operates  out  of  Texas,  wcuid 
be  no  violation  of  its  charter.  Knight  v. 
Southern  Pac.  R.  Co.,  41  Tex.  406. 


80VEBEIONTT. 

Power  to  take  private  property  for  public  use 
an  attribute  of,  see  Eminent  Domain,  68. 


SFAItll  ARBESTER8. 
Liability  of  company  for  defects  in,  see  Firbs, 
41-46. 

Patents  for,  see  Patents  for  Inventions,  47* 


SFABKS. 

As  an  element  of  damages,  see  Strebts  and 

Highways,  287. 
Evidence  of  damages  by,  see  Streets  and 

Highways,  270. 
Liability  for  fire  caused  by,  see  Fiiixs. 


SPECIAL. 
Appearance,  see  Appearance,  ?• 


SPECIAL  ACTS. 

Amendment  of  charters  by,  see  Charters, 

29. 
Construction  of,  see  Statutes,  48* 


SPECIAL  AGENTS. 
Implied  powers  of,  see  Agency,  12. 


SPECIAL  CONTRACTS. 

As  to  safety  of  employes,  duty  of  company 

under,  see  Employes,  Injuries  to,  3. 
By  conductor  to  stop  train  at  unusual  place, 

see  Carriage  of  Passengers,  256. 
Effect  of,  on  liability  for  acts  or  negligence 

of  fellow-servants,  see  Fellow-skkvants, 

50. 
For  through  shipment,  necessity  of,  see  Car* 

RiAGK  OF  Merchandise,  609. 
Limiting    liability,  see    Carriage    of  Livb 

Stock,  08-100. 

for  baggage,  see  Baggagk,  103. 

of  express  company,  see  Exprkss  Com. 

PANIES,  70-74. 


SPECIAL  DAMAGES. 

Complainant  must  show,  to  enjoin  street 
railway,  see  Street  Railways,  200. 

How  pleaded  in  action  for  expulsion  from 
train,  see  Ejection  of  Passengers,  89. 

In  actions  for  flowing  lands,  see  Floodino 
Lands,  88. 

When  allowable  in  actions  against  carriers 
of  passengers,  see  Carriage  of  Passen- 
gers, 611. 


SPECIAL  DEMURRER. 
When  proper,  see  Pleading,  64. 


SPECIAL  FINDINGS. 
As  to  contributory  negligence,  see  Crossings, 

Injuries,  etc.,  at,  228. 
Errors  in,  when  ground  for  new  trial,  see  New 

Trial,  26. 
In  actions  for  causing  death,  see  Death  by 

Wrongful  Act,  358-360. 
injuries  caused  by  fire,  see  Fires, 

364. 
killing  stock,  see  Animals,  Injuries 

TO,  558. 
Inconsistency  between  ge.--eral  verdict  and, 

see  Eminent  Domain,  828 ;  New  Trial, 

27. 


SPECIAL  LAWS. 
Constitutionality  of,  see  Statutes,  17. 
Incorporation  under,  see  Incorporation,  etc., 

2. 
Relating  to  live  stock,  constitutionality  o( 

see  Animals,  Injuries  to,  2. 


SPECIAL  PLEA. 
Contributory  negligence,  when  must  be  In* 
terposed  by,   see  Contributory  NEOLh 
GENCE,  75. 


r  ft."  I 
N 


^■i\f^ 


144    SPECIAL  PROCEEDINGS-SPECIFIC   PERFORMANCE,  1.2. 


ti, 


;.l 


m 


Form  and  sufficiency  of,  generally,  see  Plkau- 

iNG,  48-52. 
Neceisity  of,  in  condemnation  proceedings, 

see  Eminent  uomain,  354. 


SPECIAL  PROCEEDINGS. 
Costs  in,  see  Costs,  13. 


SPECIAL    PURPOSE. 
Loss  of  goods  ordered  for,  measure  of  dam- 
ages,    see    Cakkiage    of    Merchandise, 
799-809.  ■ 

SPECIAL  QUESTIONS. 
Submission  of,  to  jury  on  assessment  of  land 

damages,  see  Eminent  Domain,  503. 
To  jury  impaneled  to  assess  damages,  see 

Eminent  Domain,  827. 


SPECIAL  SERVICES. 
Extra  charges  for,  under  Railway  and  Canal 

Traffic  Acts,  see  Charges,  114-120. 
when  allowable,  see  Charges,  04- 

67. 


SPECIAL  TICKETS. 
Right  to  stop  over  on,  see  Tickets  and  Fares, 
41. 


SPECIAL  VERDICTS. 

Generally,  see  Trial,  202-220. 

In  actions  for  killing  stock,  see  Animals,  In- 

ju "Es  TO,  657. 
Of  juky  impaneled  to  assess  damages,  see 

Eminent  Domain,  827. 


SPECIFICATION. 

In  applications  for  patents,  see  Patents  for 
Inventions,  7. 


SPECIFIC   DENIALS. 
Must  be,  in  answer,  see  Pleading,  56. 
Necessity  of,  see  Animals,  Injuries  to,  371. 


SPECIFIC  INSTRUCTIONS. 
As  to  contributory  negligence,  see  Contribu- 
TORY  Negligence,  1 14. 


SPECIFIC  PERFORMANCE. 
Action  for,  by  landowner,  in  Canadian  ex- 
propriation proceedings,  see  Eminent  Do- 
main, 1278. 
Bill  for,  in  lieu  of  foreclosure  of  mortgage,  see 

Mortgages,  166. 
Of  agreements  between  connecting  compa- 
t,  se<^  Connecting  Lines,  6. 


Of  conditions  of  donation,  see  Municipal  and 
Local  Aid,  267. 

—  construction  contract,  see  Construction 

of  Railways,  103. 

—  contracts  for  crossing  of  railroads,  see 

Crossing  of  Railroads,  3. 

express  facilities,  see  Express  Com- 
panies, 10. 

_ joint  user  of  right  of  way,  see  Right 

OF  Way,  26. 

right  of  way,  see  Eminent  Domain, 

226;  Right  OF  Way,  10. 

sale  of  stock,  see  Stock,  60. 

to  locate  station,  see  Siations  and  De- 
pots, 45. 

—  judgments,  actions  for,  see   Eminent  Do- 

main, 861. 

—  notice  to  treat  under  English  compulsory 

purchase    laws,    see    Eminent  Domain, 
1130. 

—  order  of  commissioners  in  respect  to  grade 

crossings,  see  Crossing  of  Streets  AriD 
Highways,  113. 


II. 


WHEN      SPEUIFIC      PERFOBMAHOK 
WILL  BE  DECREED 144 

PBOCEBTIRE  155 


I.  WHEN  SPECIFIC  PEBFOBMANCB  WILL 
BE  DEOBEED. 

1.  Discreti«ii    of   the    court.  —  A 

party  cannot  call  upon  a  court  of  equity,  as 
of  right,  to  enforce  the  specific  performance 
of  a  contract  for  the  sale  of  land  to  a  rail- 
road, and  the  exercise  .of  this  branch  of  its 
jurisdiction  rests  in  the  sound  discretion  of 
the  court  in  view  of  the  terms  of  the  con- 
tract and  the  sui rounding  circumstances. 
P.',ei/>s  V.  ///inots  C.  A'.  Co.,  63  ///.  468.— Dis- 
tinguished in  Chicago,  B.  &  Q.  R.  Co.  v. 
Skupa,  16  Neb.  341.  Quoted  in  Missouri 
River,  Ft.  S.  &.  G.  R.  Co.  v',  Brickley,  21 
Kan.  275.— M-7t/  Orleans  v.  New  Orleans  6- 
A'.  /?.  Co.,  44  La.  Ann.  64,  ic  So.  Rep.  401.— 
Followed  in  State  ex  rel.  v.  Board  of 
Liquidators,  28  La.  Ann.  \2\.—Menasha  v. 
Wisconsin  C.  A".  Co.,  65  IVis.  502,  27  A'.  IV. 
Rep.  169.  Shenandoah  Valley  R.  Co.  v. 
Lewis,  1 2  Am.  &•  Eng.  R.  Cas.  305,  76  Va. 

833- 

2.  Requisites  of  the  contract,  geu- 
erally.  —  Before  an  individual  can  main- 
tain an  action  for  specific  performance,  to 
compel  a  company  to  construct  its  road 
through  a  certain  city,  he  must  prove  that 
he  had  an  agreement  with  the  company, 
which  bound  it  to  construct  its  road  accord- 
ing to  his  demand.     Crane  :.  Chica^^o  <r^  yv. 


SPECIFIC   PERFORMANCE,  3,  4. 


145 


IV.  R.  Co.,  17  Am.  &»  Eng.  R.  Cas.  174,  20 

Fed.  Rep.  402. 

A  correspondence  between  a  vendor  and 
a  proposed  purchaser  of  a  street  railway, 
from  which  it  appears  that  neither  party 
intended  to  be  bound  until  a  formal  writ- 
ten contract  expressing  all  the  terms  of  the 
agreement  should  be  executed  by  both 
parties,  does  not,  in  the  absence  of  such 
formal  written  contract,  prove  such  a  con- 
cluded agreement  as  may  be  specifically  en- 
forced by  a  court  of  equity.  Pacific  Rolling 
Mill  Co.  V.  Riverside  &*  A.  R.  Co.,  90  Cat. 
brj,  27  Pac.  Rep.  525. 

A  bill  for  an  account  of  fares  received  ac- 
cording to  a  contract  previously  made  be- 
tween the  parties  is  not  technically  a  bill 
for  specific  performance,  so  as  to  induce 
a  court  of  equity  to  refuse  relief  on  the 
ground  that  the  contract  is  inequitable. 
Sussex  R.  Co.  v.  Morris  6-  E.  R.  Co.,  19  N. 
J.  Eq.  13;  reversed  in  \^N.J,  Eg.  574. 

3. must  be  certain.— In  action  for 

specific  performance  of  a  contract  to  con- 
vey a  right  of  way  across  lands  of  defendant 
—held,  that  any  objection  on  the  ground  of 
indefiniteness  by  defendant  is  cured  by  de- 
fendant's putting  plaintiff  in  possession  of 
the  land  contracted  to  be  conveyed.  Ot- 
tumwa,  C.  F.  &-  St.  P.  R.  Co.  v.  Mc  Williams, 
29  Am.  &*  Eng.  R.  Cas.  544,  71  Iowa  164, 
32  A^.  W.Rep.  315. 

A  provision  in  a  deed  for  a  right  of  way, 
that  the  vendee  "  shall  build  and  keep  in  re- 
pair such  bridges  as  may  be  necessary  over 
the  lands  herein  acquired,"  is  too  indefinite 
to  be  enforced  by  a  court  of  equity.  Ze- 
ringue  v.  Texas  &•  P.  R.  Co.,  34  Fed.  Rep. 

239- 

A  contract  to  convey  land  was  sought  to 
be  avoided  on  the  ground  that  the  descrip- 
tion was  too  indefinite.  It  described  the 
land  as  that  part  of  a  certain  government 
subdivision,  "  lying  south  of  the  grove." 
Held,  that  this  description  was  certain,  and 
that  it  was  no  ground  for  refusing  an  order 
for  specific  performance.  Minneapolis  &* 
St.  L.  R.  Co.  V.  Cox,  76  Iffwa  306,  41  A^.  VV. 
Rep.  24. 

The  contract  must  be  fixed  in  its  terms, 
and  the  liability  of  the  defendant  so  certain 
that  the  duty  imposed  upon  him  by  the 
court  in  ordering  the  execution  of  the 
contract  can  readily  be  ascertained  and  as 
readily  executed.  New  Orleans  v.  New  Or' 
leans  S*  N.  R.  Co.,  44  La.  Ann.  64,  10  Sa. 
Rep.  401. 

7  D.  R.  D. -10 


The  contract  must  be  certain  and  definite 
in  its  terms  and  in  all  its  parts,  and  must  be 
clearly  proved.  Shenandoah  Valley  R.  Co. 
v.  Lewis,  12  Am.  &*  Eng.  R.  Cas.  305,  76 
Va.  833. 

In  conveying  a  right  of  way  a  landowner 
provided  in  the  deed  that  the  company  was 
to  construct  and  maintain  "  a  neat  and  good 
bridge  "  at  a  certain  place,  fur  an  overhead 
drive  across  the  track.  Held,  that  a  failure 
to  specify  the  size  of  the  bridge  and  the 
materials  of  which  it  was  to  be  constructed 
did  not  make  the  provision  so  indefinite 
that  a  court  would  refuse  specific  perform- 
ance. A  bridge  suitable  for  a  highway 
crossing  is  what  was  intended.  Lawrence  v. 
Saratoga  Lake  R.  Co.,  36  Hun  {N.  Y.)  467. 
And  the  same  objection  was  made  to 
another  provision  in  such  deed  that  the 
company  was  to  build  "  a  neat  and  tasteful 
station  building  "  at  a  certain  place  for  a 
certain  purpose.  The  evidence  showed 
that  the  company  had  erected  similar  build- 
ings a  short  distance  away  for  the  same 
purpose.  Held,  that  the  provision  was  not 
100  indefinite  to  be  enforced.  Lawrence  v. 
Saratoga  Lake  R.  Co.,  36  Hun  (N.  Y.)  467. 
— Reviewing  Wilson  v.  Northampton  &  B. 
J.  R.  Co.,  L.  R.  9Ch.  279. 

The  terms  of  an  agreement  for  the  con- 
struction of  a  railway  were  too  indefinite  to 
be  enforced  in  a  suit  for  specific  perform- 
ance ;  but  even  had  the  terms  been  suffi- 
ciently definite  the  agreement  was  of  such 
a  nature  that  specific  performance  could 
not  have  been  decreed.  Greenhill  v.  Isle  of 
Wight  {Newport  Junction)  R.  Co.,  23  L.  T. 
885.  19  W.  R.  345. 

A  rector  filed  a  bill  against  a  company 
for  the  specific  performance  of  an  alleged 
contract  for  a  free  pass  for  himself  and  his 
successors,  as  the  consideration  for  certain 
rectory  land  conveyed  by  plaintiff  to  the 
company.  The  court  of  chancery  decreed  for 
plaintiff.  The  court  of  appeal,  not  being  sat- 
isfied with  the  evidence  of  the  contract,  and 
also  deeming  the  contract  to  be  open  to 
various  objections,  reversed  the  decree,  and 
ordered  the  bill  to  be  dismissed  with  costs. 
Bettridge  v.  Great  Western  R.  Co.,  3  Up. 
Can.  E.  <S-  A.  58. 

4.  must  be  mutual  and  possi- 
ble.— When  the  owner  of  lands,  through 
or  near  which  it  is  proposed  to  run  a  rail- 
road, binds  himself  by  writing  under  seal 
to  convey  to  the  projectors,  their  associates 
or  successors,  ail  the  coal  and  iron  upon 


146 


SPECIFIC   PERFORMANCE,  5. 


■i 

11 


m 


and  in  certain  designated  lands,  and  to  se- 
cure to  them  the  right  of  way,  in  considera- 
tion that  they  would  construct  the  road  to 
a  named  point  within  a  specified  time,  the 
road  having  been  completed  within  the 
specified  time,  and  u  bill  filed  to  compel  the 
specific  performance  of  the  contract,  the 
objection  that  it  is  wanting  in  mutuality, 
because  of  a  stipulation  th.it  the  projectors 
should  not  be  liable  in  damages  if  they  failed 
to  construct  the  road,  comes  too  late  after 
the  completion  of  the  work.  JViiAs  v. 
Georgia  Pac.  R.  Co.,  79  Ala.  180. 

Where  two  railroads  contract,  each  party 
binding  itself  to  grant  to  the  oilier  an  ease- 
ment in  what  had  been  the  exclusive  prop- 
erty of  the  party  granting,  and  each  right 
and  interest  becomes  the  consideration 
for  the  right  and  benefits  secured  in  re- 
turn, it  cannot  be  objected,  in  a  suit  for 
specific  performance,  that  there  is  no  mu- 
tuality of  contract.  South  &*  N.  Ala.  Ji. 
Co.  V.  Highland  Ave.  &*  B.  Ji.  Co.,  98  Ala. 
400,  135c.  Rep.  6^2. 

Certain  landowners  sent  a  written  propo- 
sition to  a  railroad  company  offering  to 
grant  it  in  fee  certain  lands,  for  a  right  of 
way  and  for  other  purposes,  upon  certain 
specified  conditions.  Afterwards  the  presi- 
dent of  tlie  company  answered,  stating  that 
by  a  resolution  of  the  board  of  directors  of 
his  company  he  was  instructed  to  accept 
the  proposition  on  behalf  of  his  company, 
adding  "  I  beg,  therefore,  to  state  my  readi- 
ness to  confer  with  you  in  such  steps  as  may 
be  necessary  to  give  effect  to  the  arrange- 
ment ":  and  stating  further  that  if  the  land- 
owners would  prepare  a  proper  conveyance 
of  the  land,  and  a  proper  obligation  on  the 
part  of  the  railroad  company,  he  would 
submit  tliem  to  the  counsel  of  the  company 
for  approval,  and  then  execute  them  so  far 
as  it  was  his  duty.  Held,  that  the  two  com- 
munications did  not  constitute  a  contract 
so  defined  and  mutual  as  to  be  enforced  by 
a  court  of  equity.  Canton  Co.  v.  Northern 
C.  R.  Co.,  21  Md.  383. 

Where,  under  an  agreement  between  a 
railway  company  and  a  landowner,  the  sub- 
mission of  certain  estimates  to  a  person  for 
approval  is  of  the  essence  of  the  agree- 
ment, by  tlii  .eath  of  such  person  the 
agreement  becomes  incapable  of  being  per- 
formed in  the  manner  and  form  specified, 
and  equity  will  not  enforce  performance  of 
it.  Firth  V.  Midland  R.  Co.,  L.  R.  20  Eq. 
too,  33  IV.  R.  509.  3a  L.  T.  219. 


6.  Operation  of  statute  of  frauds, 

genernlly.— Where  a  railroad  company, 
through  its  officer,  agrees  by  parol  to  sell 
a  large  amount  of  land,  at  a  certain  price 
per  ncre,  to  be  paid  for  at  different  times, 
and  after  many  of  the  tracts  have  been  con- 
veyed and  taken  possession  of,  and  im- 
provements made  thereon,  a  court  will  not 
decree  specific  performance,  after  a  refusal 
by  the  company  to  convey  other  tracts. 
Small  V.  Northern  Pac.  R.  Co.,  20  Fed.  Rep. 

753- 

It  seems  that  equity  will  decree  specific 
performance  of  a  written  contract  giving  a 
railroad  a  right  of  way  over  plaintifl's  land, 
in  consideration  that  it  would  erect  a  sta- 
tion thereon.  Haisten  v.  Savannah,  C.  &* 
N.  A,  R.  Co.,  51  Ca.  199,  6  Am.  Ry.  Rep. 
424. 

The  owner  of  land,  through  which  a  rail- 
road corporation  was  authorized  to  make 
its  road,  gave  it  a  bond  to  convey  by  a  cer- 
tain day,  on  payment  of  a  specified  sum,  so 
much  of  his  land  as  should  be  taken  bv  it 
by  authority  of  law  for  the  purposes  of  the 
road ;  and  the  corporation,  within  the  time 
allowed  by  law,  entered  upon  and  took  the 
land  for  the  purposes  of  the  road  ;  but,  on 
the  owner's  tendering  it,  on  the  day  named 
in  the  bond,  a  deed  of  the  land,  refused  to 
pay  him  the  stipulated  sum.  Held,  that  the 
agreement,  not  having  been  signed  by  the 
corporation,  could  not  be  specifically  en- 
forced against  it  in  equity.  Jacobs  v.  Peter- 
ktrottgh  <&-  S.  R.  Co.,  8  Cush.  {Mass.)  223.— 
Following  Kidder  V.  Hunt,  i  Pick.  (Mass.) 
328;  Thompson  v.  Gould,  20  Pick.  134; 
Adams  v.  Townsend,  i  Mete.  (Mass.)  483; 
Davenport  v.  Mason,  15  Mass.  85. — Distin- 
guished IN  Steenrod  v.  Wheeling,  P.  &  B. 
R.  Co.,  27  W.  Va.  I.  Not  followed  in 
Old  Colony  R.  Corp.  v.  Evans,  6  Gray 
(Mass.)  25. 

W.  Va.  Code,  ch.  98,  §  i,  requires  every 
contract  for  the  sale  of  land  to  be  signed 
by  the  party  to  be  charged  ;  but  notwith- 
standing this  provision,  where  there  has 
been  such  performance  as  will  take  the  case 
out  of  the  operation  of  the  statute,  a  writ- 
ten contract  signed  by  the  vendor  alone 
may  be  enforced  against  the  vendee.  So 
held,  where  a  landowner  contracted  to  sell 
land  to  a  railroad  company,  which  took  pos- 
session, and  after  its  insolvency  the  land 
passed  to  another  company,  which  contin 
ued  to  occupy  it.  Steenrod  v.  Wheeling,  P. 
&>  B.  R.  Co,,  27  W.  Va.  I.— Distinguish- 


SPECIFIC   PERFORMANCE,  6-8. 


147 


ING  Jacobs  V.  Peterborough  &  S.  R.  Co.,  8 
Cush.  (Mass.)  223. 
O. effect  of  part  performance. 

— A  railroad  company  and  a  landowner 
made  an  oral  contract  for  the  exchange  of 
lands.  Both  went  into  possession,  and  the 
private  owner  made  a  deed  tu  the  company, 
and  made  large  expenditures  in  improve- 
ments, and  held  possession  for  several  years. 
Held,  in  an  action  against  the  company  for 
specific  performance,  that  this  was  sufficient 
performance  to  take  the  case  out  of  the 
statute  of  frauds.  Union  Pac.  R.  Co.  v.  Mc- 
Alpine,  129  U.  S.  305,  9  Sup.  Ci.  Rep.  286; 
affirming  23  Fed.  Rep.  168. 

In  case  of  a  parol  contract  between  the 
plaintiff  and  a  railroad,  giving  the  company 
a  right  of  way  through  his  land  in  consid- 
eration that  it  would  erect  a  station  there- 
on, the  building  of  such  road  upon  the  land 
is  not  such  partial  performance  as  to  enable 
a  court  of  equity  to  decree  specific  perform- 
ance. Haisten  v.  Savannah,  G.  &*  N.  A. 
R.  Co.,  51  Ca.  199,  6  Am.  Ry.  Rep.  424. 

If  a  party  verbally  contracts  with  a  land- 
owner for  the  right  to  construct  a  railroad 
over  the  land,  and  is  permitted  to  enter 
upon  the  same,  and  expends  money  in  build- 
ing the  track,  in  good  faith,  on  the  owner's 
verbal  promise  to  convey,  and  such  party 
otherwise  performs  or  offers  to  perform  his 
part  of  the  agreement,  such  performance  or 
partial  performance  will,  as  in  other  cases, 
take  tlie  case  out  of  the  statute  of  frauds, 
and  a  court  of  equity  will  decree  a  specific 
performance  of  the  agreement.  St,  Louis 
A'at.  Stock  Yards  v.  W^gins  Ferry  Co., 
112  ///.  384. 

An  oral  agreement  by  a  railroad  corpora- 
tion to  release  to  a  person  one  of  two  par- 
cels of  land  included  in  its  location  and 
owned  by  him  at  the  time  the  location  was 
filed,  upon  consideration  that  he  should  not 
demand  or  collect  damages  for  taking  the 
land  so  released,  is  an  agreement  for  the 
transfer  of  an  interest  in  lands  within  the 
statute ;  and  neither  the  building  of  fences 
by  the  corporation  (after  agreement  made), 
dividing  the  land  released  from  that  used 
for  the  railroad,  and  digging  a  new  channel 
for  a  brook  along  the  dividing  line  between 
the  land,  nor  the  refraining  by  the  owner 
from  collecting  compensation  for  the  taking 
of  the  land  covered  by  the  agreement,  and 
the  continued  occupation  by  him  of  the 
land,  constitute  such  part  performance  as  to 
warrant  a  decree  for  specific  performance. 


Barnes  v.  Boston  5-  M.  R.  Co.,  130  Mass. 
388. 

7.  Necessity  of  peribrmance  by 
coniplaliiaiit.  —  A  party  seeking  to  en- 
force specific  performance  of  a  contract  must 
show  that  he  himself  has  always  been  ready 
and  willing  to  perform  the  contract  on  his 
part,  notwithstanding  time  is  not  made  the 
essence  of  the  contract.  Phelps  v.  Illinois 
C.  R.  Co.,  63  ///.  468. 

Where  a  company  enters  into  a  contract 
for  a  conveyance  of  land  to  it,  upon  condi- 
tions both  precedent  and  subsequent,  such 
as  that  it  shall  locate  and  maintain  a  depot 
at  a  certain  place,  and  that  it  shall  pay  for 
the  platting  of  other  adjoining  lands  of  the 
grantor,  it  is  not  bound  to  perform  the  con- 
ditions subsequent  before  conipclling  a  con- 
veyance of  the  land.  Minneapolis  &-  St.  L. 
R.  Co.  V.  Cox,  76  Iowa  306, 41  N.  IV.  Rep.  24. 

Where  a  plan  of  reorganization  provides 
that  stockholders  in  the  old  corporation 
may  have  stock  in  the  new,  by  paying  cer- 
tain assessments  within  a  specified  time,  a 
court  of  equity  will  not  decree  specific  per- 
formance, where  the  assessments  are  de- 
manded but  not  made  within  the  time, 
though  plaintiff  subsequently  offers  to  make 
the  payments,  and  demands  the  stock.  Dow 
V.  Iowa  C.  R.  Co.,  70  Hun  186.  53  A^.  Y.  S. 
R.  898,  24  A^.  Y.  Siipp.  292;  affirmed  in  144 
A^  Y.  \i(i,  39  A'.  E.  Rep.  398. 

The  courts  will  not,  in  the  exercise  of  their 
discretionary  power,  enforce  performance 
of  a  contract  to  relinquish  a  right  of  way 
made  upon  the  implied  stipulation  that  the 
road  would  be  completed  within  a  reason- 
able time  by  the  company  or  its  assignees, 
where  the  company  has  abandoned  its  right 
of  way  and  route.  Beattie  v.  Carolina  C. 
R.  Co.,  46  Am.  &>  Eftg.  R.  Cas.  524,  108  A'". 
Car.  425,  12  5.  E.  Rep.  913. 

8.  Sufficiency  of  such  perform- 
ance.—A  contract  for  sale  of  land  for  a  cer- 
tain price,  on  condition  that  the  purchaser, 
within  one  year,  have  its  railway  completed 
across  and  beyond  said  land,  and  cars  run- 
ning thereon,  when  the  vendors  will  execute 
a  deed,  and  the  purchase  money  shall  be- 
come due  and  payable,  immediate  posses- 
sion for  the  uses  of  the  purchaser  being 
granted,  does  not  make  payment  of  the  pur- 
chase money  within  the  year  of  the  essence 
of  the  agreement,  or  a  condition  precedent 
to  its  enforcement  by  the  purchaser.  Byers 
V.  Denver  Circle  R.  Co.,  13  Colo.  552,  22  Pae, 
Rtp.  951, 


148 


SPECIFIC  PERFORMANCE,  0,  10. 


.«  •„ 


!i' 


I  f  ^  . 


I 


An  undertaking  \n  a  deed,  on  the  part  of 
the  grantee  to  perform  certain  acts,  becomes, 
on  delivery  of  the  deed  to  and  acceptance 
by  him.  effectual  as  a  contract  on  his  part  to 
perform  the  undertaking,  and  upon  refusal 
on  his  part  to  perform,  an  action  for  specific 
performance  or  for  damages  is  maintainable. 
Post  V.  IVest  Shore  R.  Co.,  47  Am.  <&*  Ettg, 
R.  Cas.  322,  123  iV.  V.  580,  26  JV.  E.  Rep.  7, 
34  A'.  Y.  S.  R.  484 ;  affirming  50  Hun  301,  20 
A^.  Y.  S.  R.  180,  3  A^.   Y.  Siipp.  172. 

A  landowner  contracted  to  sell  certain 
land  to  defendant  company  for  a  nominal 
price,  in  consideration  of  the  company 
agreeing  to  erect  and  maintain  a  lawful 
fence  on  each  side  of  its  road.  The  fences 
were  not  built  and  the  landowner  refused 
the  deed  and  brought  ejectment.  The  com- 
pany insisted  on  a  specific  performance  of 
the  contract.  Held,  that  it  was  proper  to 
decree  specific  performance,  upon  the  com- 
pany fencing  its  track,  and  paying  any 
damages  incurred  by  the  failure  to  do  so. 
Helmkes.  Netv  Jersey  6-  A^.  Y.  R.  Co.,  49 
A^.  Y.  S,  R.  361,66  Hun  632,  mem.,  21  A^. 
Y.  Supp.  345 ;  affirmed  in  143  A^.  Y.  648, 
mem.,  60  A'.  Y.  S.  R.  874,  mem,,  37  A'^.  E. 
Rep.  824. 

9.  What  contracts  may  be  en- 
forced, generally.*  —  Specific  perform- 
ance of  an  agreement,  by  a  railway  company, 
to  construct  and  maintain  a  siding  was  de- 
creed, altliough  the  owner  of  the  land  had 
previously  entered  into  negotiations  for 
compensation  in  respect  of  the  breach  of  the 
agreement.  Greene  v.  West  Cheshire R.  Co., 
35  L.  T.  409,  20  W.  R.  54. 

The  general  rule  that  an  agreement  to  sub- 
mit a  controversy  to  arbitration  cannot  be 
specifically  enforced  will  not  prevent  the 
enforcement  of  a  contract  between  two 
companies.  A  stipulation  in  the  contract 
to  submit  controversies;  to  referees  for  arbi- 
tration is  not  of  fhe  essence  of  the  agree- 
ment, but  relates  merely  to  differences  that 
may  arise  respecting  the  minor  details  of  its 
execution,  and  does  not  preclude  the  specif- 
ic enforcement  of  the  contract.  Union  Pac. 
R.  Co.  V.  Chicago,  R.  I.&*P.  R.  Co.,  51  Am. 
6-  Eng.  R.  Cas,  162,  51  Fed.  Rep.  309,  2   C. 


•  Specific  performance  of  contracts  with  rail- 
roads, see  note,  43  Am.  &  Enc.  R.  Cas.  645. 

Specific  performance  of  contracts  to  afford  ex- 
press facilities,  see  note,  22  Am.  &  Eng.  R.  Cas. 
274. 

Contracts  for  right  of  way,  see  note,  29  Am. 
ft  Eno.  R.  Cas.  548.   See  also  43  Id.  587,  abstr. 


C.  A.  174 ;  affirming  47  Am.  &*Rl^.  R.  Cas. 
lap,  \T  Fed.  Rep.  15. 

A  company  may  compel  specific  perform- 
ance of  a  contract  to  convey  a  right  of  way, 
after  complying  with  the  conditions  thereof 
itself,  and  may  enjoin  an  assessment  of  dam- 
ages under  ad  quod  damnum  proceedings. 
Chicago  &*  S.  W.  R.  Co.  v.  Swinney,  38 
Iowa  182. 

A  railroad  corporation  may  maintain  a 
bill  in  equity  for  the  specific  performance  of 
a  contract  to  purchase  of  it  land  which  it  has 
purchased  for  the  purpose  of  having  gravel 
dug  therefrom,  and  transported  at  a  certain 
freight  over  its  road,  to  be  delivered  to  and 
used  by  a  third  party.  Old  Colony  R.  Corp. 
v.  Evans,  6  Gray  (Mass.)  25.— NOT  FOLLOW- 
ING Jacobs  V.  Peterborough  &  S.  R.  Co.,  8 
Gush.  223. 

A  contract  providing  for  the  joint  owner- 
ship and  operation  of  the  same  line  of  road 
by  several  companies,  each  having  an  undi- 
vided interest  therein,  is  capable  of  specific 
performance.  Louisville  &*  N.  R.  Co.  v. 
Mississippi  &*  T.  R.  Co.,  92  Tenn.  681,  22 
S.  W.  Rep.  920. 

Where  a  landowner  contracts  to  grant  a 
right  of  way  through  his  farm,  free  from 
damages,  and  to  make  a  deed  upon  demand, 
and  the  company  has  entered,  constructed 
its  road,  and  is  operating  it,  a  cr>urt  will  de- 
cree specific  performance  of  the  contract. 
Ohio  River  R.  Co.  v.  Sehon,  33  W.  Va.  559, 
M  S.  E.Rep.  18. 

10.  Because  of  no  adequate  rem- 
edy at  law.— Where  a  railway  company 
takes  up  a  siding  constructed  by  it  from  its 
line  to  a  mill  under  an  agreement  to  replace 
such  siding  when  required  by  the  mill 
owner,  such  agreement  may  be  specifically 
enforced,  damages  being  an  insufficient 
remedy.  Todd  v.  Midland  G.  W.  R.  Co., 
9L.R.,/r.  85. 

Where  a  lease  of  a  railroad  is  only  partly 
performed,  and  there  are  various  parties, 
and  a  restraining  order  is  sought  against 
some  rf  the  defendants,  and  the  interests 
are  varied  and  complicated,  and  it  appears 
that  the  parties  could  not  have  a  fuH  rem- 
edy at  law,  it  is  proper  to  apply  to  a  court 
of  equity  for  specific  performance.  St. 
Louis,  A.  &*  T.  H.  R.  Co.  v.  Indianapolis 
&*  St.  L.  R.  Co.,  ^Biss.  (U.  S.)  144.— Quot- 
ing Chicago  &  N.  W.  R.  Co.  v.  Whitton,  13 
Wall.  (U.  S.)  270. 

Where  plaintiff  cannot  be  adequately 
compensated  by  damages,  for  a  breach  o{ 


SPECIFIC   PERFORMANCE,  11-13. 


149 


contract,  and  the  things  required  by  the 
contract  are  definite,  a  specific  perf<-"-mance 
should  be  decreed.  Lawrence  v  iiarat<^a 
Lake  li.  Co.,  3  A'.  V-  S.  R.  743- 

1 1.  CoiitractH  to  subscribe  stock.— 
A.  had  agreed,  conditionally  with  others, 
to  subscribe  a  certain  amount  to  the  stock 
of  a  company,  and  B.  and  C.  agreed  with 
him  in  writing,  if  he  would  do  so  uncondi- 
tionally, they  would  each  take  one  fourth 
of  such  stock  oft  his  hands  l>y  sul.scril)ing 
for  it  in  their  own  names,  and  A.  nfterwarcls 
made  such  subscription  absolutely.  Held, 
that  equity  would  decree  the  specific  per- 
formance of  such  agreement.  Austin  &^  /V.  C. 
R.  Co,  V.  Gillaspie,  i  Jonea  Eq.  (N.  Car.)  261. 

12.  Contracts  to  biiihl  niid  iimiii- 
taiii  station.  —  Where  a  railroad  com- 
pany enters  into  a  contract  with  a  land- 
owner, whereby  it  obtains  a  right  of  way, 
and  agrees  to  construct  a  station  at  a  cer- 
tain place,  "simultaneously  with  the  con- 
struction of  said  road,"  the  company  upon 
taking  possession  of  the  Innd  and  construct- 
ing its  road,  should  be  compelled  specif- 
ically to  perform  the  contract.  Lawrence  v. 
Sarit/oi,ra  Lake  R.  Co.,  36  Hun  {N.  Y.)  467  ; 
adhered  to  in  3  N.  Y,  S.  R.  743— Distin- 
guishing RIanchard  v.  Detroit,  L.  &  L.  M. 
R.  Co.,  31  Mich.  43 ;  Port  Clinton  R.  Co.  v. 
Cleveland  &  T,  R.  Co.,  13  Ohio  St.  544; 
McCann  v.  South  Nashville  St.  R.  Co.,  2 
Tenn.  CW.  773. 

The  agreement  in  such  case  provided  that 
all  regular  trains  should  stop  at  the  station 
provided  for.  Held,  that  a  court  could  not 
compel  the  company  to  run  trains  upon  its 
road,  but  it  might  properly  enjoin  it  from 
running  any  regular  trains  which  did  not 
stop  at  such  station.  Lawrence  v.  Saratoga 
Lake  R.  Co.,  36  Hun  (N.  Y.)  467;  adhered 
to  in  3  N.  Y.  S.  R.  743. 

In  consider.ition  of  a  bonus  granted  by 
plaiiitiflfs,  a  company  covenanted  "to  erect 
and  maintain  .1  permanent  freight  and  pas- 
senger station  "  at  a  certain  place.  Shortly 
afterwards  the  road  was  leased,  with  notice 
of  tiii?  agreement,  to  the  defendant,  which 
discontinued  the  place  as  a  regular  station, 
merely  stopping  when  there  were  passen- 
gers to  he  let  down  or  taken  up.  He/d, 
that  the  mere  erection  of  station  buildings 
was  not  a  fulfilment  of  the  covenant,  and 
that  the  municipality  was  entitled  ti  have 
it  specifically  performed.  Wa/lace  Tp.  v. 
Great  Weatern  R,  Co.,  3  Ont.  A  pp.  44 ;  af- 
firming  25  Grant 's  Ch.  86. 


13.  Contracts  to  construct  croM- 

hiKS.— Plaintiff,  who  was  the  owner  of  a 
farm  on  the  westerly  shore  of  a  river,  con- 
veyed to  a  railroad  company  the  fee  of  a 
strip  of  land  across  his  farm,  which  in- 
cluded a  highway.  The  deed  contained  a 
clause  that  the  company  would  reconstruct 
and  restore  the  highway  and  "  place  the 
same  along  the  westerly  line  and  upon  " 
the  premises  conveyed;  also  "to  construct 
a  good  and  convenient  crossing  over  the 
railway  premises  to  the  highway  recon- 
structed as  aforesaid."  The  company  con- 
structed an  embankment  on  the  easterly 
side  of  the  strip,  from  fourteen  to  twenty 
feet  high,  cutting  o(T  all  approach  over  the 
highway  to  plaintiff's  buildings  from  the 
south  :  it  made  an  approach  on  the  north 
side  of  the  farm,  enabhng  plaintiff  to  reach 
the  highway  in  that  direction.  In  con- 
structing the  embankment,  the  company 
obstructed  the  highway  so  as  to  prevent 
its  use.  The  commissioner  of  highways 
threatened  legal  proceedings;  he  also  ob- 
jected to  placing  the  highway  on  the  strip 
sold.  The  company  thereupon  purchased 
of  plaintiff  a  strip  of  ground  for  the  high- 
way on  a  hill  above  its  road,  over  which  it 
constructed  the  highway.  Upon  executing 
the  second  deed,  plaintiff  expressly  refused 
to  release  the  company  from  the  obligation 
of  the  covenant  in  the  first.  In  an  action 
for  specific  performance  of  said  covenant — 
held,  that  tlie  company,  by  acceptance  of 
the  deed,  became  bound  to  perform  the  ob 
ligation  recited  therein,  and  upon  its  re- 
fusal so  to  do,  the  action  was  maintainable ; 
that  the  claim  that  the  obligation  was  void, 
as  against  public  policy,  because  it  provided 
for  an  abandonment  of  part  of  an  existing 
road  without  the  sanction  of  the  commis- 
sioner of  highways  of  the  town  was  unten- 
able, as  his  consent  was  not  necessary  ;  also 
that,  for  the  same  reason,  the  fact  that  he 
objected  to  the  proposed  change  was  not  an 
excuse  for  non-performance  of  the  under- 
taking. Post  V.  West  Shore  R.  Co.,  47  Am. 
&*  Eng.  R.  Cas.  322,  123  N.  Y.  580,  26  N. 
E.  Rep.  7,  34  N.  Y.  S.  R.  484 ;  affirming 
10  Hun  2,01,20  N.  Y.  S.  R.  iSo,  3  A^.  Y. 
Supp.  172. 

//  seetns  that,  assuming  the  company  had 
no  right,  as  between  itself  and  the  town,  to 
locate  the  reconstructed  highway  as  pro- 
vided in  the  covenant,  plaintiff  was  still  en- 
titled to  enforce  the  contract  so  far  as  to 
give  him  a  road  as  provided  for, although  it 


150 


SPECIFIC   PERFORMANCE,  14,  15. 


■  1. 


would  no  longer  continue  a  legal  highway. 
Pes/  V.  IVett  Shore  Ji.  Co.,  47  Am,  &•  Eng, 
R,  Cas  322,  123  A',  y.  580,  26  N.  E.  Rep.  7, 
34  A'.  Y.  S.  R,  484;  affirming  50  Hun  301, 
20  A'.  Y.  S.  R.  180,  3  A',  r.  Supp.  172. 

The  sale  by  plaintiff  to  the  company  of 
another  strip  of  land  for  the  highway,  and 
its  construction  ttiereon,  was  not  a  waiver 
of  the  covenant.  Post  v.  W^«/  S/iore  R.  Co., 
47  Am.  &*  Eng.  R.  Cas.  322,  123  A'.  Y.  580, 
26  A'.  E.  Rep.  7,  34  ^-  Y.  S.  R.484:  affirm- 
ing 50  Hun  301,  20  A^.  Y.  S.  R.  180.  3  A'.  Y. 
Supp.  172. 

Plaintiff's  evidence  was  to  the  effect  that 
his  daiiutges  for  the  non-performance  of  the 
covenant  were  in  the  aggregate  $5000 ;  the 
damage  arising  from  the  non-construction 
of  the  road  and  that  from  failure  to  build 
the  crossing  was  not  separately  stated.  By 
stipulation  of  the  parties,  tlie  court,  after 
the  testmiony  was  in,  viewed  the  premises, 
and  there  was  evidence  showing  the  in- 
creased cost  of  carrying  on  the  farm,  be- 
cause of  the  obstruction  of  the  old  highway. 
The  court  found  that  plaintiff's  damages 
were  $2500,  and  directed  judgment  for  that 
amount ;  also  that  the  company  should  con- 
struct a  crossing  under  its  road  to  enable 
plaintiff  to  reach  the  old  highway,  /fe/d, 
no  error.  Post  v.  IVes/  Shore  R.  Co.,  47 
Am.  &*  Eng.  R.  Cas.  322  123  A'.  Y.  580,  26 
A^.  E.  Rep.  7,  34  A'.  Y.  S.  R.  484;  affirming 
50  Hun  301,  20  A',  r.  S.  R.  180,  3  A^.  Y. 
Supp.  172. 

Subsequent  to  the  commencement  of  the 
action,  the  company  became  insolvent;  its 
property  and  franchises  were  sold  on  fore- 
closure and  became  the  property  of  a  new 
company,  organized  to  operate  the  road, 
which  company  was  brought  in  as  a  defend- 
ant. Held,  that  the  new  company,  on  be- 
coming vested  witli  said  property  and  fran- 
chises, became  bound  by  the  covenant ;  but 
that  it  was  not  liable  for  the  damages  for 
depreciation  in  value  of  the  use  of  the  farm, 
which  accrued  prior  thereto.  Post  v.  West 
Shore  R.  Co.,  47  Am.  fi-  Eng.  R.  Cas.  322, 
123  N.  Y.  580,  26  A'.  E.  Rep.  7,  34  A^.  Y.  S. 
R.  484;  affirmitig  50  Hun  301,  20  N.  Y.  S. 
R.  180,  3/V.  Y.  Supp.  172. 

14.  Contracts  to  permit  joint  use 
of  right  of  wuy.  —  Where  two  railroad 
companies  have  entered  into  an  agreement 
each  granting  to  the  other  certain  privileges, 
such  as  making  crossings,  and  one  laying  a 
track  on  the  other's  tight  of  way,  it  is  no 
objection  to  a  specific  peiformance  of  the 


agreement  that  it  is  not  just  and  equitable 
in  that  it  does  not  secure  equal  benefits  to 
the  two  companies.  South  &*  N,  Ala.  R. 
Co.  V.  Highland  Ave.  &*  B.  R.  Co.,  98  Ala. 
400,  1 3  So.  Rep,  682. 

Two  railroad  companies  contracted  with 
each  other,  inter  alia,  whereby  one  company 
bound  itself  to  permit  the  other  to  construct 
and  operate  a  track  on  a  part  of  its  right  of 
way,  and  to  make  certain  crossings,  the 
other  agreeing  to  permit  the  former  to  cross 
a  strip  of  land  whenever  and  wherever  it 
might  elect,  binding  itself  to  maintain 
proper  crossings,  but  if  it  should  fail  after 
thirty  days'  notice  to  renew'or  repair  such 
crossings,  then  the  other  company  could  do 
so  at  the  expense  of  the  company  so  agree- 
ing. Held,  that  this  was  such  a  contract  as 
a  court  of  equity  could  specifically  enforce. 
South  &•  N.  Ala.  R.  Co.  v.  Highland  Ave.  6- 
B.  R.  Co.,  98  Ala.  400, 13  So.  Rep.  682.— AP- 
PROVING Union  Pac.  R.  Co.  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  51  Fed.  Rep.  309.  Recon- 
ciling Conger  v.  New  York,  W.  S.  &  B.  R. 
Co.,  43  Am.  &  Eng.  R.  Cas.  643,  120  N.  Y. 
29;  Texas  &  P.  R.  Co.  v.  Marshall,  136  U. 
S.  393.  Reviewing  Lytton  v.  Great  North- 
ern R.  Co..  2  Kay  &  J.  394 ;  Sanderson  v 
Cockermouth  &  \V.  R.  Co.,  Ii  Beav.  497; 
Joy  V.  St.  Louis,  138  U.  S.  i. 

Where  a  company  contracts  that  other 
companies  may  use  its  right  of  way,  under 
"such  reasonable  regulations  and  tcims  as 
may  be  agreed  upon,"  and  thereafter  refuses 
to  allow  another  company  to  use  such  right 
of  way  upon  any  terms,  a  court  of  equity 
may  enforce  the  contract,  determine  the 
amount  of  consideration,  and  decide  upon 
the  regulations.  Central  Trust  Co.  v.  Wa- 
bash, St.  L.&*P.  R.  Co.,  29  Fed.  Rep,  546.— 
Following  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Southern  Exp.  Co.,  108  U.  S.  24,  2  Sup.  Ct. 
Rep.  6. 

1 5.  What  contracts  may  not  be  en- 
forced, generally.*— A  court  of  equity 
will  not  decree  specific  performance  of  a 
contract  to  build  a  railroad,  on  the  ground 
that  the  court  would  not  undertake  tu 
superintend  the  construction,  which  would 
take  a  considerable  time.  Ross  v.  Union 
Pac.  R.  Co.,  Woolw.  (U.S.)  26.— Approv- 
ing Lucas  V.  Commerford,  3  Brown's  Cli. 

•  Conveying  a  right  of  way  with  condition  that 
it  should  revert  if  not  used  for  railroad  purposes 
at  any  time.  Company  may  abandon,  and  action 
for  specific  performance  will  not  lie,  lee  36  Am. 
&  Enu.  R.  Cas.  438,  abtir. 


■'■  4 


SPECIFIC   PERFORMANCE,  16. 


151 


166.  I  Ves.  Jr.  235.  Reviewing  South 
Wales  R.  Co.  v.  Wythes,  i  Kay  &  J.  186,  5 
De  G.,  M.  &  G.  880;  S*orer  w.  Great  West- 
ern R.  Co.,  2  Y.  &  C.  48. -Approved  in 
McCann  v.  South  Nashville  St.  R.  Co.,  2 
Tcnn.  Ch.  773.  Followed  in  Oregonian 
R.  Co.  V.  Oregon  R.  &  N.  Co.,  37  Fed.  Rep. 
•JH.— Oregonian  K.  Co.  v.  Oregon  J\\  &*  N. 
Co.,  37  Fed.  Rep.  733.— Following  Ross  v. 
Union  Pac.  R.  Co,  Woolw.  (U.  S.)  26; 
Storer  v.  Great  Western  R.  Co.,  2  Y.  &  C. 
48,  Referring  to  Pennsylvania  R.  Co.  v. 
St.  Louis,  A.  &  T.  H.  R.  Co.,  118  U.  S.  305. 
6  Sup.  Ct.  Rep.  \o^\.—Greenhill  v.  Isle  of 
Wight  (^Newport  Junction)  A\  Co.,  23  L.  T. 
885,  19  py./i.  345. 

Nor  for  building  and  equipping  a  long 
line  of  railroad,  building  stations,  and  freight 
and  engine  houses.  Danforth  v.  Philadel- 
phia &-  C.  M.  S.  L.  R.  Co.,  30  A'.  /.  Eq.  12, 
18  Am.  Ky.  Rep.  66.  Wilson  v.  North- 
ampton &*  B.J.  R.  Co.,  L.  R.  9  Ch.  279,  43 
L.J.  Ch.  503,  22  W.  R.  380. 30  L.  T.  147. 

Nor  to  construct  or  repair  a  railway. 
Oregonian  R.  Co.  v.  Oregon  R.  &»  N.  Co.,  11 
Sawy.  {U.  S.)  33. 

Nor  decree  a  conveyance  of  mineral  lands 
to  a  railroad  company,  where  it  docs  not  ap- 
pear that  it  ha'  the  authority  to  acquire 
such  lands.  Wilks  v.  Georgia  Pac.  R.  Co., 
T)  Ala.  180. 

Nor  to  build  a  railroad,  to  be  paid  for  in 
the  stock  and  bonds  of  the  company,  where 
the  company  is  willing  to  perform  the  con- 
tract if  it  can  lawfully  do  so,  but  where  it 
appears  that  it  has  not  complied  with  a  sup- 
plement to  the  law  regulating  corporations, 
and  that  a  failure  to  do  so  would  work  a 
forfeiture  of  its  charter.  Danforth  v.  Phil- 
addphia  <S-  C.  M.  S.  L.  R.  Co.,  30  N.J.  Eq. 
12,  18  ^/;i.  Ry.  Rep.  66. 

Nor  to  deliver  government  bonds,  or  cer- 
tificates of  shares  of  railroad  stock,  where 
they  are  marketable,  public  stocks,  and  lia- 
ble to  be  sold  every  day  in  the  market.  Ross 
v.  Union  Pac.  R.  Co.,  Woolw.  ((/.  S.)  26. 

A  court  of  equity  will  not  grant  relief  to 
let  a  party  into  the  benefits  of  a  contract  on 
a  bill  filed  to  enforce  what  is  claimed  to  be 
an  oral  agreement,  whereby  complainant 
was  to  furnish  information  to  two  others, 
who  were  to  furnish  funds  and  buy  railroad 
bonds,  in  contemplation  of  subsequently 
buying  the  road  at  a  foreclosure  sale  for  the 
oenefit  of  the  three,  where  the  evidence 
shows  no  written  agreement  whatever,  and 
ontjf  desultory  conversations,  which  failed 


to  show  a  contract  at  all  to  the  satisfaction 
of  the  court,  but  which  might  have  been 
8uf!icient  to  have  led  complainant,  under  the 
circumstances,  to  believe  that  he  was  to  be 
taken  in  as  a  partner.  Farley  s.HiU,  150  U. 
S.  572,  14  Sup.  Ct.  Rep.  186. 

A  mortgaged  railroad  company  contracted 
with  a  bridge  company  for  the  use  of  its 
bridge  across  a  certain  river,  which  contract 
fixed  the  rate  of  tolls  to  be  paid,  and  the  rail- 
road company  and  another  guaranteed  that 
these  tolls  should  amount  to  a  sum  not  less 
than  $75,000  annually,  and  by  its  own  terms 
the  contract  was  to  be  perpetual.  Held, 
that  the  court  would  not  decree  that  the 
purchaser  of  the  road  at  a  foreclosure  sale 
should  carry  out  the  contract.  Newport  &• 
C.  Bridge  Co.  v.  Douglass,  12  Bush  (Ky.) 
673,  18  Am.  Ry.  Rep.  221. 

An  express  company  loaned  a  railroad 
company  $20,000,  and  was  to  do  the  express 
business  of  the  road,  the  sum  to  be  paid 
back  in  carryingthe  express  messengers  and 
goods.  The  contract  provided  that  it  should 
cease  in  one  year  upon  payment  of  the 
whole  sum  loaned.  A  receiver  was  ap- 
pointed at  the  suit  of  bondholders  to  fore- 
close their  mortgage,  and  refused  to  carry 
out  the  contract.  Held:  ( i)  that  the  receiver 
might  pay  the  money  as  soon  as  a  decree 
for  specific  performance  was  entered  and 
thus  render  it  a  nullity;  (2)  the  contract 
was  not  a  lien  on  the  road,  and  cannot  be 
enforced  against  the  receiver  in  such  a  suit. 
Southern  Exp.  Co.  v.  Western  N.  C,  R.  Co., 
99  U.  S.  191.— Followed  in  Central  Trust 
Co.  V.  Marietta  &  N.  G.  R.  Co.,  51  Fed. 
Rep.  15  ;  Union  L.  &  T.  Co.  v.  Southern 
Cal.  Motor  Road  Co.,  49  Fed.  Rep.  267. 
Quoted  in  Brown  v.  Warner,  78  Tex.  543. 

10.  Because  of  au  adequate  rem- 
edy at  law.*— A  court  of  equity  will  not 
make  a  general  decree  that  a  railroad  com- 
pany shall  at  all  times,  in  the  future,  ship 
the  freight  of  the  plaintiff,  in  accordance 
with  a  contract  to  that  effect.  Such  relief 
is  impracticable  and  the  plaintiff  has  an  ad- 
equate remedy  at  law.  Atlanta  &*  W.  P. 
R.  Co.  V.  Speer,  32  Ga.  550.— Quoted  IN 
Fargo  V.  New  York  &  N.  E.  R.  Co.,  23  N. 
Y.  Supp.  360,  3  Misc.  205,  52  N.  Y.  S.  R. 
20s.— Dickson  V.  Covert,  \^  Grant's  Ch,  {U. 
C.)  321. 

*  A  contract  to  run  trains  to  a  depot  is  not 
enforceable.  The  remedy  is  for  damages  for 
Itiearh  nf  contract,  see  35  Au.  &  Emo.  R.  Cas> 

240,  abstr. 


m 


SPECIFIC   PERFORMANCE,  16. 


v% 

11;: 

Nor  to  enforce  a  contract  by  which  a 
company  agreed,  in  consideration  of  a  right 
of  way,  to  fence  the  road  through  the  lands 
of  plaintiff,  Cincinnati &•  C  R.  Co.  v.  Wash- 
burn, 25  Ind.  259. 

Nor  to  enforce  a  covenant  by  a  railroad 
company  to  maintain  and  keep  in  repair 
cattle-guards  upon  the  land  of  plaintiff. 
Columbus  &*  S.  R,  Co.  v.  Watson,  26  Ind. 

Nor  a  contract  by  a  company  in  consider- 
ation of  a  donation  of  lands  to  it  by  a  city 
to  establish  its  terminus  and  machine  shops 
in  the  city  and  not  to  remove  them.  (Brew- 
er, J.,  dissents.)  Texas  &*  P.  R.  Co.  v. 
Marshall,  42  Am.  &*  Eng.  R.  Cas.  637.  136 
U.  S.  393, 10  Sup.  Ct.  Rep.  846.— Distin- 
guished IN  Joy  V.  St.  Louis,  45  Am.  &  Eng. 
R.  Cas.  655,  138  U.  S.  I. 

Nor  to  enforce  a  contract  to  build  a  road 
to,  and  run  trains  from,  a  certain  place.  St, 
Thomas \  Credit  Valley  R.  Co..  \2Ont.  App. 
273. — Distinguishing  Attorney-General «/. 
Mid-Kent  R.  Co.,  L.  R.  3  Ch.  100.  QuoT- 
ing  Wilson  v.  Northampton  &  B.  J.  R.  Co., 
L.  R.  9  Ch.  279. 

Nor  to  enforce  a  contract  by  a  canal  com- 
pany to  furnish  water  power  for  a  mill, 
against  a  railroad  company  that  had  suc- 
ceeded to  the  property.  United  N.J.  R.&* 
C.  Co.  V.  Hoppock,  28  N.  J.  Eq.z(ii,\\  Am. 
Ry.  Rep.  23    reversing  27  N.  J.  Eq.  286. 

Nor  to  compel  specific  performance  of  an 
agreement  by  a  company  to  repair  the  foun- 
dation of  a  building  which  has  been  injured 
by  the  construction  of  its  road,  after  the 
owners  themselves  have  made  the  necessary 
repairs,  tiie  bill  also  asking  for  damages  for 
land  taken.  Church  of  the  Holy  Communion 
v.  Paterson  Extension  R.  Co.,  43  Am.  &* 
Eng.  R.  Cas.  654,  46  N.  J.  Eq.  372,  20  Atl. 
Rep.  169. 

Nor  to  compel  a  railway  company  to  re- 
store switch  connections  between  the  rail- 
road and  coal  and  lumber  yards  of  a  vendor, 
it  appearing  that  to  restore  the  switch  con- 
nections as  before  would  be  detrimental  to 
the  business  of  the  roads  and  to  the  public 
interests,  and  that  there  was  a  track  laid 
alongside  of  the  yard,  and  a  connection  with 
it  was  offered.  Chicago,  B.  &>  Q.  A'.  Co. 
V.Reno,  113  ///.  39.— Reviewing  Chicago 
&  A.  R.  Co.  V.  Schoeneman,  90  111.  258. 

Nor  to  compel  certain  individuals  to 
grant  a  free  right  of  way  in  consideration 
that  the  company  would  build  its  road  to  a 
certain  city.     Chicago,  M.  6-  St.  P.  R.  Co. 


V.  Durant,  46  Am.  6-  Eng.  R,  Cas.  488,  44 
Minn.  361,  46  N.  W.  Rep.  676. 

Nor  to  enforce  a  contract  between  two 
companies  by  which  one  is  to  advance 
money  to  the  other  to  pay  interest,  t*"! 
sums  to  be  advanced  repayable  on  demand. 
Bradford,  E.  &*  C.  R.  Co.  v.  New  York,  L, 
E.  &*  W.  R.  Co.,  47  Am.  &*  Eng.  R.  Cas. 
yj^,  123  N.  Y.  316,  25  N.  E.  Rep.  499,  33 
A'.  Y.  S.  R.  614;  reversing  \t  N.  Y.  S.  R. 
208,  I  A'.  Y.  Supp.  363. 

And  assuming  in  case  defendant  advanced 
the  money,  it  would  not  have  the  legal  right 
to  demand  an  immediate  payment,  as  plain- 
tiff could  not  repay  said  advances  and  as 
the  security  therefor  proved  to  be  entirely 
worthless,  performance  of  the  contract  could 
not  be  enforced.  Bradford,  E.  &*  C.  R.  Co. 
V.  New  York,  L.  E.  &*  W.  R.  Co.,  47  Am. 
6-  Etig.  R.  Cas.  374.  123  A^.  Y.  316,  25  A'.  E. 
Rep.  499,  33  A''.  Y.  S.  R.f>\\;  reversing  16 
A^.  Y.  S.  R.  208,  I  A^.  Y.  Supp.  363. 

It  was  claimed,  on  the  part  of  plaintiff, 
that  the  insolvency  of  the  plaintiff  com- 
pany was  a  contingency  contemplated  by 
the  contract.  It  appeared  that,  for  the  year 
prior  to  entering  into  the  contract,  said  com- 
pany had  earned  enough  to  pay  operating 
expenses,  interest  on  its  bonds,  and  a  divi- 
dend to  its  shareholders,  leaving  a  surplus 
in  its  treasury.  Held,  that  it  could  not  be 
assumed  that  the  parties  contemplated  that 
said  plaintiff  would  permanently  cease  to 
earn  enough  to  pay  operating  expenses ;  that 
it  was  to  be  assumed  that  the  obligation  to 
advance  was  founded  upon  the  belief  that  a 
temporary  contingency  might  arise  by  which 
a  part  payment  of  interest  could  not  be 
made  by  plaintiff  because  of  an  insufficiency 
of  net  earnings,  in  which  case  defendant 
was  bound  to  advance  enough  to  make  such 
payment.  Bradford,  E.  &*  C.  R.  Co.  v. 
New  York,  L.  E.  6-  W.  R.  Co.,  47  Am.  &■ 
Eng.  R.  Cas.  374,  123  N.  Y.  316,  25  N.  E. 
Rep.  499,  33  A^.  Y.  S.  R.  6\^;  reversing  16 
A^.  Y.  S.  R.  208,  I  A^.   Y.  Supp.  363. 

The  complaint  asked  for  an  accounting 
between  the  parties,  which  it  claimed  was 
necessary,  and  hence  that  a  court  of  equity 
had  jurisdiction,  and  having  obtained  it  for 
one  purpose  could  retain  it  for  all,  and  give 
final  relief.  Held,  untenable ;  that  no  ac- 
counting was  necessary ;  that  while  it  might 
be  necessary,  in  order  to  show  that  there 
had  been  no  net  earnings,  to  examine  plain- 
tiff's books  for  the  purpose  of  discovering 
what  the  gross  earnings  had  been  and  how 


SPECIFIC  PERFORMANCE,  17,18. 


158 


they  had  been  paid  out,  this  involved  no 
accounting  between  parties,  within  the 
meaning  of  the  term  as  used  in  relation  to 
the  jurisdiction  of  a  court  of  equity  over 
matters  of  account.  Bradford,  E.  &*  C.  R, 
Co.  V.  New  York,  L.  E.  **  W.  R.  Co.,  47 
Am.  6-  Eng.  R.  Cas.  374,  123  N.  Y.  316,  25 
N.  E.  Rep.  499.  33  N.  K.  5.  ^.  614 ;  reversing 
16  N.  Y.  S.  R.  208,  I  A^.  Y.  Supp.  363. 

If  the  action  were  to  be  regarded  as  one 
at  law  to  recover  damages  for  the  violation 
of  the  agreement,  it  was  not  maintainable, 
as  no  facts  were  pleaded  or  proved  showing 
damages  sustained  by  the  plaintiff  company, 
because  of  defendant's  alleged  breach  of  its 
agreement.  Bradford,  E.  &*  C  R.  Co.  v. 
JVew  York,  L.  E.  6^  IV.  R.  Co.,  47  ^w.  &* 
Eng.  R.  Cas.  374,  123  A^.  Y.  316.  25  N.  E. 
Rep.  499,  33  A^.  Y.  S.  R.  6i\;  reversing  16 
A^  Y.  S.  R.  208,  I  A'.  Y.  Supp.  363. 

A  conveyance  of  land  to  a  railroad  with 
the  condition  that  it  should  revert  to  the 
grantor,  if  it  ceased  to  be  used  for  railroad 
purposes,  does  not  create  a  covenant  that 
the  company  will  build  its  road  thereon,  or 
continue  it.  But  if  such  covenant  existed, 
the  remedy  for  a  breach  would  be  an  action 
at  law,  and  not  a  bill  for  specific  perform- 
ance. Hoard  v.  Chesapeake  &»  O.  R.  Co., 
123  U.  S.  222,  8  Sup.  a.  Rep.  74. 

A  conveyance  of  land  to  a  railroad  with 
the  condition  that  it  should  revert  to  the 
grantor,  if  it  ceased  to  be  used  for  railroad 
purposes,  provides  its  own  remedy,  and  the 
grantor  is  not  entitled  to  a  decree  to  compel 
the  company  to  build  on  the  land  and  use  it 
for  railroad  purposes.  Hoard  \.  Chesapeake 
6-  O.  R.  Co.,  123  U.  S.  222,  8  Sup.  a.  Rep. 
74. 

17.  Because  agaiust  public  policy. 
— Equity  will  not  enforce  specific  perform- 
ance of  a  contract  to  locate  passenger  and 
freight  depots  at  a  particular  point  and  at 
no  other  point  in  a  town,  the  enforcement 
of  such  contract  being  regarded  as  against 
public  policy.  Marsh  v.  Fairbury,  P.  6-  N. 
IV.  R.  Co.,  64  ///.  414,  2  Am.  Ry.  Rep.  82.— 
Distinguished  in  Snell  v.  Pells,  113  III. 
145.  Quoted  in  Florida  C.  &.  P.  R.  Co. 
V.  State  ex  rel.,  31  Fla.  482;  Holladay  v. 
Patterson,  3  Oreg.  177 ;  People  ex  rel.  v. 
Chicago  &  A.  R.  Co.,  35  Am.  &  Eng.  R. 
Cas.  462,  130  111.  175,  22  N.  E.  Rep.  857. 

Where  a  company  covenanted  with  the 
owners  of  land  to  construct  a  drawbridge 
on  its  track  at  a  certain  point,  so  as  to  ad- 
mit vessels  from  a  river  through  a  cnntcni- 


plated  slip  or  canal,  and  it  appeared  that 
owing  to  an  agreement  made  by  certain 
owners  of  the  land  afterwards,  the  slip  or 
canal  to  the  river  could  not  be  made  con- 
tinuous, so  as  to  be  of  avail  for  canal  pur- 
poses  to  complainants  who  had  succeeded 
to  a  part  of  the  land,  and  the  effect  of  en- 
forcing the  agreement  would  ht  seriously 
to  embarrass  the  company  in  its  business, 
delay  trains  and  endanger  their  safety,  and 
would  be  a  serious  public  detriment,  a  de- 
cree of  specific  performance  against  the 
company  was  refused.  Chicago  &>  A.  R. 
Co.  V.  Schoeneman,  90  ///.  258.— Quoted  in 
State  V.  Des  Moines  &  Ft.  D.  R.  Co.,  49  Am. 
&  Eng.  R.  Cas.  186,  84  Iowa,  419.  51  N.  W. 
Rep.  38.  Reviewed  in  Chicago,  B.  &  Q. 
R.  Co.  V.  Reno,  113  111.  39. 

18.  Illegal  and  void  contracts.— 
In  1865  plaintiff  company  was  seized  in  fee 
simple  of  certain  land  which  was  no  longer 
required  for  the  purposes  of  its  railway; 
it  conveyed  the  land  to  an  individual  in 
fee  for  ;£ioo,  and  he  covenanted  that  he,  his 
heirs  or  assigns,  would  at  any  time  there- 
after whenever  the  land  might  be  required 
for  the  railway  or  works  of  the  company, 
and  whenever  requested,  upon  receiving 
;£ioo,  reconvey  the  land  to  the  con>pany. 
In  1879  defendant  purchased  the  land  from 
the  grantee's  heir,  with  notice  of  the  above 
covenant.  In  1880  the  company  gave  de- 
fendant notice  to  reconvey  the  land,  and 
upon  his  refusal  to  do  so  this  action  was 
brought  for  specific  performance  of  the 
covenant.  The  company  had  power  in  1865 
to  purchase  land  by  agreement,  though  t.ot 
compulsorily,  and  that  power  was  extended 
to  the  present  time  by  subsequent  acts. 
Held,hy  Kay.  }. :  (i)  That  the  transaction  of 
1865  was  not  ultra  vires  the  company ;  that 
as  there  was  at  that  time  a  strong  probabil- 
ity that  the  land  would  be  required  for  the 
purpose  of  the  company,  it  was  within  its 
power  to  enter  into  a  prospective  contract 
to  purchase  it ;  and  that  the  sale  was  not  a 
conditional  sale,  but  an  absolute  sale  with  a 
personal  contract  by  the  purchaser  to  resell. 
(2)  That  an  executory  interest  in  property 
to  arise  on  a  future  event  which  may  not 
happen  within  the  limits  of  the  rule  against 
perpetuities  is  void,  though  it  be  limited  to 
an  ascertained  person  who  can  release  it  at 
any  time.  (3)  That  in  the  present  case  the 
covenant  did  not  create  any  estate  or  inter- 
est in  land,  and  therefore  was  not  obnoxious 
to  the  rule  against  perpetuities,  and  that  spe- 


154 


SPECIFIC   PERFORMANCE,  10. 


i 


'■■^% 


m 


\  ■  1 


II 


i-4. 


%% 

iw 


clfic  performance  must  be  dicrccd.  Hi!,!, 
by  tlie  court  of  appeal,  rcvctsiuy  Kay,  J.  : 
(I)  That  the  covenant  in  the  deed  of  1865 
reserved  to  tlie  company  an  interest  in  the 
land,  and  tliat  the  sale  was  ultra  vires  and 
void,  for  tliat  under  the  Lands  Chiuses  Con- 
solidation Act,  1845,  §  ^V>  l'»i(l  sold  by  a 
•onipany  as  superfluous  land  must  be  sold 
absolutely  without  reserving  any  interest  to 
the  company.  (2)  That  as  the  covenant 
nave  to  the  company  an  executory  interest 
in  land  to  arise  on  an  event  which  niiglit 
occur  after  the  period  allowed  by  tlie  rules 
as  to  remoteness,  it  was  invalid  on  the 
ground  of  remoteness.  I^mdoH  &*  S.  W.  K. 
Co.  v.  Goinin,  1 1  Am.  &*  Enj,'^.  /'.  Cus.  385, 
L.  A'.  20  CA.  I).  562.— DiSAi'i'RoviNf;  Gil- 
bertson  ?'.  Richards,  4  H.  &  N.  277 ;  Birming- 
ham Canal  Co.  v.  Cartwright,  11  Ch.  D. 
42[.  Explaining  Tulk  v.  Moxhay,  3 
Phillips  774. 

A  railroad  company  contracted  with  the 
government  to  complete  its  road  by  a  certain 
date,  the  government  reserving  the  right 
to  terminate  the  contract  on  six  months' 
notice,  if  it  appeared  that  the  work  was  not 
progressing  so  as  to  be  completed  within 
the  time.  After  the  notice  to  terminate  the 
contract  had  been  given,  and  after  the  full 
lime  for  the  completion  of  the  road,  the  com- 
pany contracted  with  another  road  for  the 
privilege  of  connecting  juid  running  trains 
for  a  distance  over  its  road,  and  for  other 
privileges.  Ne/ii,  that  the  contract  was 
u//rn  vires  and  void,  and  a  court  of  equity 
woidd  not  lend  its  aid  in  enforcing  it,  upon 
a  bill  filed  by  the  former  road  asking  for 
specific  performance  against  ihe  other  com- 
pany. Carleton  Branch  K.  Co.  w  Grand 
Soul  Iter  n  li.  Co.,  21  Ne-iv  Brun,  339. 

Defendant  railway  company  granted  to 
plaintiff  company  the  privilege  of  connecting 
with  defendant's  track  and  running  trains 
over  part  of  its  track,  with  the  privilege  of 
building  another  track  alongside  of  defend- 
ant's, and  also  demised  certain  lots  for  depot 
and  other  purposes.  One  entire  rent  was  re- 
served at  a  fixed  annual  sum.  It  was  decided 
that  the  demise  was  illegal  as  in  excess  of 
the  powers  of  the  plaintiflf.  Held,  that  no 
part  of  the  contract  could  be  enforced. 
The  consideration  being  illegal  in  part,  and 
entire,  vitiated  the  entire  contract.  Carle- 
ton  Branch  li.  Co.  v.  Grand  Southern  R.  Co., 
2 1  New  Brun.  339. 

10.  C<>iitraets  for  personal  ser- 
vices—TrespaMs   on   land.— If,  in  any 


case,  it  would  be  competent  for  a  court  to 
decree  the  specific  performance  of  a  con- 
tract to  operate  a  railroad,  requiring,  as  it 
would,  personal  acts,  involving  the  continu- 
ous exercise  of  skill  and  judgment  under 
varying  circumstances  and  emergencies,  it 
could  <mly  be  in  a  case  where  the  demand  for 
the  exercise  of  such  a  power  was  stringent, 
and  the  circumstances  such  as  to  authorize 
the  court  in  making  an  order  to  limit  its  dura- 
tion as  to  time,  and  to  define,  to  some  proper 
and  reasonable  extent,  the  mode  and  man- 
ner in  which  it  should  be  obeyed.  Port 
Clinton  A'.  Co,  v.  Cleveland  &*  T.  K.  Co..  13 
Ohio  St.  544.— Approved  in  McCann  v. 
South  Nashville  St.  R.  Co.,  2  Tenn.  Ch.  773. 
Distinguished  in  Lawrence  v,  Saratoga 
Lake  R.  Co.,  36  Hun  (N,  Y.)  467. 

A  court  of  chancery  will  not  enforce  the 
specific  performance  of  continuous  duties 
which  involve  personal  labor  and  care ;  as, 
for  example,  the  running  of  the  cars  of  a 
street  railroad  along  a  particular  street, 
daily,  "at  such  regular  intervals  as  may  bo 
right  and  proper,"  whether  the  obligation 
of  the  railroad  company  be  rested  on  con- 
tract or  the  provisions  of  its  charter.  Mc- 
Cann V.  South  Nashville  St.  A'.  Co.,  2  Tenn. 
Ch.  773.— Approving  Heathcote  v.  North 
StafTordshirc  R.  Co.,  14  Jur.  859;  Ross  v. 
Union  Pac.  R.  Co.,  Woolw.  (U.  S.)  26; 
Fallon  V.  Missouri  &  M.  R.  Co.,  i  Dill. 
(U.  S.)  121 ;  Port  Clinton  R.  Co.  v.  Cleve- 
land &  T.  R.  Co.,  13  Ohio  St.  544  R' 
viewing  Powell  Duffryn  Steam  f  '  ' 
V.  Taflf  Vale  R.  Co.,  L.  R.  9  Ch.  it- 

TINGUISHED  IN  Lawrence  v.  Sar  .  Lake 

R.  Co.,  36  Hun  (N.  Y.)  467. 

The  remedy  for  the  enforcement  of  a  duty 
imposed  upon  a  corporation  by  its  charte. 
is  by  mandamus,  or  by  proceedings,  in  the 
name  of  the  state,  for  a  forfeiture  of  the 
charter.  McCann  v.  Sovth  Nashville  St.  A'. 
Co.,  2  Tenn.  Ch.  773.— Approving  Union 
Pac.  R.  Co.  V.  Hall,  91  U.  S.  343  ;  People 
V.  Albany  &  V.  R.  Co.,  24  N.  Y.  267. 

Defendant  purchased  a  strip  of  land 
through  plaintifis'  property,  and  agreed  to 
put  in  a  passage-way  under  the  track  at  a 
certain  place,  and  it  afterwards  appeared 
that  the  road  leading  to  the  proposed  pas- 
sage-way VMS  cut  off  and  that  a  passage- 
way at  that  point  would  be  flooded  by 
tide  water,  and  defendant  therefore  failed  to 
perform  its  agreement,  and  plaintiffs  brought 
suit  for  specific  performance ;  and  it  also 
appeared  that  the  subcontraotors  who  con- 


r?<AB 


SPECIFIC    PERFORMANCE,  20-22. 


165 


Btructed  defendant's  road  had  trespassed 
upon  and  wasted  the  land  of  plaintilTs  adja- 
cent to  the  strip  purchased,  and  plaintilT.s 
also  joined  claims  of  damages  therefor. 
Held,  that  if  plaintiffs  stood  by  and  per- 
mitted defendant's  contractors  to  enter  upon 
and  waste  the  soil  adjacent  to  the  right  of 
way  without  objection,  a  court  of  equity 
may  refuse  toawaid  ihcm  damages  therefor. 
Murtfilitt  V.  New  York,  W.  S.  Sm  B.  A'.  Co., 
25  Ai>i.  &*  Eng.  R,  Cas.  144,  102  A'.  Y.  703, 
me»i.,  I  Silv.  App.  93,  7  A'.  E,  Kip.  404,  2 
A'.  Y.  .9.  /v".  444 ;  affirming  34  Ilun  632. 

20.  Pi'rf'urniuiico  working  Iianl- 
slilp  iiiMl  conferring  no  honelit.— 
Specific  performance  of  an  agreement  by  a 
railroad  company  to  construct  a  passage- 
way under  its  track  will  not  be  decreed, 
wliere  the  evidence  shows  that  the  construc- 
tion cf  tlic  passage  would  be  difficult,  and 
comparatively  useless  to  the  plaintilT  when 
constructed  ;  but  the  court  will  leave  the 
parties  to  their  remedy  at  law  for  damages. 
MurtfehU  v.  Neiv  York,  W.  S.  (&-  /?.  A".  Co.. 
25  Aiti.  (5->  Eng.  A'.  Cai.  144.  i  St'/v.  App.  93, 
102  A'.  1'.  703,  mem.,  7  A'.  E.  Rtp.  404,  2  A'. 
Y.  S.  R.  444 ;  affirming  34  Uun  632,  me»i. 

The  doctrine  that  specific  performance  of 
a  contract  will  not  be  decreed  where  it  will 
result  in  great  hardship  and  injustice,  or  in 
a  case  where  the  public  interests  would  be 
prejudiced  thereby,  applied  to  a  case  where 
a  landowner,  who  had  conveyed  to  a  rail- 
road company  a  right  of  way,  sought  to 
enforce  the  specific  performance  of  a  con- 
tract to  build  a  station  upon  the  side  of  a 
steep  mountain  in  a  sparsely  settled  district, 
where  the  ])iiblic  travel  would  be  greatly 
delayed  by  the  steppage  of  trains.  Conger 
V.  New  York.  W.  S.  &•  B.  R.  Co.,  43  Am. 
&•  Fiiir.  R.  Cas.  643,  120  A^.  Y.  29,  23  N.  E. 
R'P  '83,  30  A^.  Y.  S.  R.  124;  affirmittg  i,l 
Hun  296,  10  A';  Y.  S,  R.  392. 

Equity  will  not  compel  specific  perform- 
ance, where  the  benefits  of  the  contract 
cannot  be  realized  in  accordance  with  its 
ter  IS.  Hence,  where  a  railroad  company, 
ha\  .ng  a  line  of  telegraph,  grants  the  use  of 
its  poles  to  a  telegraph  company  on  certain 
conditions  and  stipulations  in  favor  of  the 
grantor,  which  are  ultra  vires,  an  injunction 
will  not  be  granted  whereby  the  grantor  will 
be  required  to  perform  other  stipulations 
made  in  consideration  of  such  void  stipula- 
tions. Marietta  &-  C.  R.  Co.  v.  Western 
Union  Tel.  Co.,  10  Am.  &»  Eng.  R.  Cas.  387, 
38  Ohio  St.  24. 


n.  PROOBSUU. 

21.  iTiirindictlon.*— A  court  of  equity 
has  jurisdiction  to  enforce  specific  execution 
of  an  award  concerning  real  estate,  or  of  an 
agreement  for  the  purchase  or  sale  of  real 
estate,  notwithstanding  it  involves  the  en- 
forcement of  an  award  to  pay  money.  Mem- 
phis &•  C.  R.  Co.  V.  Scruggs,  50  Miss.  284. 

22.  Plendlng.— On  demurrer  to  a  bill 
for  tlie  specific  performance  of  a  contract, 
whereby  defendant,  among  other  things, 
agreed  to  convey  to  a  railroad  corporation 
(whose  legitimate  successor  is  the  complain- 
ant) the  right  of  way  for  its  railroad,  one 
hundred  feet  in  width,  over  his  lands,  and 
the  company,  for  itself  and  its  successors, 
covenanted  that  its  railroad  should  be  lo- 
cated and  built  on  the  line  then  already 
agreed  upon  by  him  and  theengineer  of  the 
company,  and  designated  in  the  agreement 
by  a  reference  to  a  map— held,  that  an 
averment,  on  "information  and  belief," that 
the  railroad  had  been  constructed  on  the 
line  mentioned  in  the  agreement,  but  wheth- 
er so  or  not  that  it  was  constructed  on  aline 
agreed  upon  by  the  defendant  as  satisfactory, 
and  had  been  operated  ever  since  on  sa.d 
line,  without  objection  or  complaint  by  de- 
fendant, "so  far  as  complainant  knows,  and 
as  it  believes,"  lacks  certainty  and  explicit- 
ness  as  to  the  location  of  the  line  of  the 
railroad,  and  as  to  the  description  of  the 
premises  claimed  to  be  included  in  the  con- 
tract. New  York,  S.  &*  W.  R.  Co.  v.  Law- 
ton,  1 1  Am.  6*  Eng.  R.  Cas.  406,  35  A'.  /. 
Ef.  386. 

The  complaint  alleged  that  plaintiff  con- 
tributed $10,000 towards  securinga  franchise 
for  defendant  corporation,  upon  the  agree- 
ment that  he  should  receive  the  same 
amount  of  money  and  stock  as  the  original 
promoters.  He,  in  fact,  received  $10,000  in 
the  stock  of  the  company,  and  a  writing 
stating  that  he  was  entitled  to  $10,000  of 
first  mortgage  bonds  of  another  corporation. 
There  was  no  allegation  that  the  original 
promoters  received  any  stock  or  money  over 
and  above  what  plaintiff  had  received,  or 
that  they  had  received  anything  at  all.  No 
allegation  of  a  breach  by  defendants,  or 
either  of  them,  of  the  agreement  sued  on 
was  alleged,  nor  was  there  any  allegation 
that  what  plaintiff  received  was  not  equal 

*  Specific  performance  of  negative  contracts 
l>y  injunction,   see  note,  22  Am.   &    Enc.  R, 

Cas.  276. 


I 


158 


SPECIFIC   PERFORMANCE,  23,24. 


;  i 


:hi 


to  whatever  the  original  promoters  received. 
J/eM,  on  demurrer,  that  the  complaint  failed 
to  stale  a  cause  of  action.  DeLacy  v,  Wal- 
iotl.  21  A'.  Y.  Supp.  619.  2  Misc.  132,  50^. 
Y.  y  R.  527. 

23.  Parties.  —  An  express  company 
loaned  a  railroad  company  money  to  repair 
and  equip  its  road,  in  consideration  that  the 
latter  grant  the  former  the  privilege  of  doing 
ezpress  business  over  the  road,  the  com- 
pensation due  the  latter  lor  such  privilege 
to  be  applied  in  payment  of  the  loan.  The 
road  went  into  the  hands  of  a  receiver  who 
refused  to  carry  out  the  contract.  There- 
upon the  express  company  filed  a  bill  for 
specific  performance.  Held,  that  the  re- 
ceiver was  the  only  necessary  defendant. 
Southern  Exp.  Co.  v.  Western  N.  C.  K.  Co., 
99  U.  S,  191. 

Where  a  bond  is  made  payable  to  the 
projectors  of  a  railroad  by  name,  "  their  as- 
sociates and  successors,"  and  is  duly  as- 
signed by  them  to  a  corporation,  by  which 
the  road  was  built  as  stipulated,  tliat  cor- 
poration may  maintain  a  bill  for  the  specific 
performance  of  the  contract.  Wilks  v. 
Veorjf/a  Pac.  R.  Co.,  79  Ala.  180. 

Where  an  action  is  brought  for  the  spe- 
cific performance  of  a  written  contract  to 
convey  real  estate,  and  prior  to  the  com- 
mencement of  the  action  the  vendor  has 
sold  and  conveyed  the  legal  title  to  a  sub- 
sequent purchaser,  such  purchaser  is  a 
necessary  party  to  the  action,  and  a  decree 
for  a  specific  performance  against  the  vendor 
without  making  such  a  purchaser  a  party,  is 
erroneous.  Atchison,  T.  &*  S.  F.  R.  Co.  v. 
Benton,  42  Kan.  698,  22  Pac.  Rep.  698. — 
Quoting  Hare  v.  London  &  N.  W.  R.  Co., 
I  Johns.  &  H.  252. 

A  landowner  refused  to  sell  the  portion  of 
his  land  required  for  .ailroad  purposes,  but 
offered  to  sell  all  of  it.  The  company,  being 
prohibited  by  its  charter  from  purchasing 
land  nut  necessary  for  its  road,  engaged 
a  third  party  to  buy  the  whole  tract,  and 
advanced  the  money  for  that  purpose,  under 
an  agreement  that  the  portion  required  by 
the  company  was  to  be  conveyed  to  it,  and 
the  remainder  to  a  certain  other  party.  An 
oral  agreement  was  entered  into  for  the 
purchase  of  the  whole  farm,  and  a  written 
agreement  was  to  be  signed  and  a  deed 
delivered  in  a  few  days.  Such  third  person 
took  possession  of  the  land,  and  delivered 
to  the  company  the  portion  it  needed,  but 
afterwards  the  landowner  refused  to  convey, 


and  the  company  filed  a  bill  for  specific 
performance.  Held,  that  the  third  person 
who  made  the  agreement  was  a  necessary 
party,  but  the  other  person  to  whom  he  was 
to  convey  a  portion  of  the  land  was  not. 
Pennsylvania  &*  N.  E.  H.  Co.  v.  Ryerson,  36 
N.  /.  Eq.  112. 

24.  Matters  of  defense,  generally. 
— In  an  action  against  a  railroad  for  specific 
performance  of  a  contract  whereby  it  agreed 
to  convey  land,  the  company  cannot  set  up  a 
mortgage  executed  by  it  npon  the  land  as  a 
reason  for  not  conveying.  Union  Pac.  R. 
Co.  V.  Mc Alpine,  129  U.  S.  305,  9  Sup.  Ct. 
Rep.  286  ,  affirming  23  Fed.  Rep.  168. 

Specific  performance  of  a  contract  to 
convey  land  will  not  be  decreed,  where  the 
value  of  the  land  is  to  be  fixed  by  an  arbi- 
trator, unless  his  award  is  made  within  a 
reasonable  time.  A  delay  of  six  months, 
where.the  property  is  in  or  near  a  growing 
city,  and  where  the  price  of  real  estate  may 
be  expected  to  increase  rapidly — held,  to  be 
unreasonable.  Chicago,  At.  &*  St.  P.  R.  Co. 
V.  Stewart,  19  Fed.  Rep.  5. 

The  specific  performance  of  a  contract 
between  two  railroad  companies,  whereby 
one  of  them  lets  the  other  into  the  joint 
use  of  Its  bridge  and  terminals,  will  not  be 
refused  because  the  acts  to  be  performed 
are  t  extend  through  a  long  term  of  years 
ann  ve  numerous  and  complicated.  Union 
Pac.  R.  Co.  V.  Chicago,  R.  I.  &*  P.  R.  Co.. 
51  Am.&'  Eng.  R.  Cas.  162,  51  Fed.  Rep. 
309,  2  C.  C.  A.  174,  affirming  47  Am.  6* 
Eng.  R.  Cas.  340,  47  Fed.  Rep.  1 5. 

Since  railroads  may  be  built  by  private 
enterprise,  without  the  aid  of  corporate 
powers,  it  is  no  objection  to  a  specific  per- 
formance of  a  contract  that  the  projectors 
of  the  road  had  not  been  incorporated  when 
the  contract  was  made.  Wilks  v.  Georgia 
Pac.R.  Co.,  7gAla.  180. 

The  holder  of  a  contract  for  a  conveyance 
of  land  made  a  contract  with  a  railway 
company,  whereby  he  agreed  to  convey  to 
the  latter  a  right  of  way  over  the  land,  on 
conditions  fully  performed.  He  paid  all 
the  purchase  money  except  $70,  and  then 
assigned  his  contract  of  purchase  to  his 
wife,  she  paying  nothing  therefor,  except 
the  I70  to  the  vendor,  arid  received  a  deed 
for  the  land.  It  appeared  that  the  land  out- 
side of  the  right  of  way  was  worth  more 
than  the  sum  paid  by  the  wife.  Held,  on 
bill  by  the  company  for  a  specific  pe.form- 
ance  of  the  contract  of  the  husband,  that 


SPECIFIC   PERFORMANCE,  25-28. 


167 


the  wife  stood  in  no  better  position  than 
t'  c  husband  would,  in  regard  to  the  rights 
oi  the  company.  Chicago  6f*  E,  I.  R.  Co.  v. 
Hay,  1 19  ///.  507.  10  N.  E.  Rep.  34. 

Where  a  man  has  stipulated  to  permit  a 
company  to  construct  a  road  over  his  land, 
by  any  one  ot  two  or  more  routes,  at  its 
option,  he  cannot  resist  the  performance  of 
his  agreement  by  showing  that  he  was  in- 
duced to  believe,  by  his  own  notions,  or  by 
the  representations  of  others,  that  a  particu- 
lar route  would  be  adopted  which  was  not 
finally  adopted ;  nor  by  showing  that  the 
company,  or  its  agents,  had  made  such  rep- 
resentations. Western  R.  Co.  v.  Babcock, 
6  Mete.  (Mass.)  346.  — DISTINGUISHED  IN 
Boston  &  M.  R.  Co.  v.  Bartlett,  10  Gray 
(Mass.)  384. 

25.  Inadequate  consideratiou. — 
Where  railroad  companies  enter  into  a  con- 
tract to  bridge  a  river,  for  the  purpose  of 
making  through  connections,  specific  per- 
formance of  the  contract  will  not  be  re- 
fused on  the  ground  of  inadequacy  of 
consideration,  where  it  appears  that  the 
contract  was  entered  into  by  experienced 
railroad  men,  for  the  purpose  of  preventing 
a  rival  bridge,  and  where  plaintiff  has 
expended  over  (1,000,000  in  constructing  a 
connecting  line.  Union  Pac,  R.  Co.  v.  CAi- 
cago,  R.  1. 6-  P.  R.  Co.,  51  Am.  &*  Eng.  R. 
Cas.  162,  51  Fed.  Rep.  309,  2  C.  C.  A.  174; 
affirming  47  Am.  &*  Eng.  R,  Cas.  340,  47 
Fed.  Rep.  15. 

Where  a  contract  for  the  conveyance  of  a 
right  of  way  recites  two  considerations, 
one  in  money,  but  less  than  the  value  of  the 
right  of  way,  and  the  other,  the  benefits  to 
be  derived  from  the  construction  of  the 
road,  specific  performance  cannot  be  avoided 
on  tiic  ground  of  inadequacy  of  considera- 
tions. Ottumwa,  C.  F.  &•  St.  P.  R.  Co.  v. 
.Mcll'iiliams,  29  Am.  6-  Eng.  R.  Cas.  544, 
71  /inva  164,  32  N.  W.  Rep.  315. 

Where  defendant  contracts  with  the 
crown  to  convey  certain  land  for  a  railroad 
company  for  $1250,  quart,  whether  the 
crown  can  maintain  an  action  for  specific 
performance  when  the  damages  appear  to 
be  greater  than  that  amount,  and  defendant 
refuses  to  carry  out  his  agreement.  Queen 
V.  McKenaie,  2  Can.  Exch.  198.'' 

26.  Delay  —  Laches.— The  owner  of 
land  entered  into  an  agreement  with  a 
company,  to  convey  a  strip  over  the  same 
for  a  main  and  side  track,  in  considera- 
tion of  the  location  of  a  station  on  the 


premises.  During  the  same  year  the  com- 
pany entered  into  possession,  with  the  con- 
sent of  the  owner,  and  fully  performed  its 
part  of  the  contract,  and  continued  such 
occupancy,  by  itself  and  successors,  with- 
out objection,  for  about  thirteen  years, 
when  its  successor  filed  a  bill  for  the  specific 
performance  of  the  contract.  Held,  that 
the  doctrine  of  laches  had  no  application, 
and  presented  no  defense.  Chicago  &*  E,  1. 
R.  Co.  v.  Hay,  119  ///.  4  ;  10  N.  E.  Rep.  29. 
— Followed  in  Chici  •  >  &  E.  I.  R.  Co.  w. 
Hay,  119  III.  507. 

Specific  performance  of  an  agreement  to 
convey  land  to  a  railroad  corporation  will 
not  be  decreed  on  a  bill,  filed  by  it  more 
than  three  years  after  the  other  party  has 
refused  to  perform,  and  after  it  has  located 
its  road  over  other  land  including  but  a 
small  portion  oi  this,  and  after  this  land 
has  greatly  increased  in  value,  without  any 
steps  taken  by  the  cor|)oration  meantime, 
to  enforce  the  agreement.  Boston  &*  M.  R. 
Co.  V.  Bartlett,  10  Gray  (Mass.)  384.— Dis- 
tinguishing Western  R.  Corp.  v.  Bab- 
cock, 6  Mete.  346. 

Where  a  party  agrees  under  seal  to  per- 
mit a  lailroad  corporation  to  construct  a 
road  over  his  land,  and  to  convey  the  land 
for  a  certain  sum,  after  the  road  is  definitely 
located,  with  a  condition  in  the  deed  of 
conveyance  that  it  shall  be  void  when  the 
road  shall  cease  or  be  discontinued,  specific 
performance  of  such  agreement  may  be  de- 
creed, after  the  road  is  constructed,  al- 
though the  corporation  did  not  expressly 
bind  itself  to  take  or  to  pay  for  the  land. 
And  where  the  corporation  takes  the  land, 
constructs  a  road  over  it,  and  is,  for  three 
or  four  years,  in  full,  actual  possession,  and 
then  files  a  bill  for  specific  performance,  the 
bill  will  not  be  dismissed  on  the  ground  of 
unreasonable  delay  in  filing  it.  Western 
R.  Corp.  v.  Babcock,  6  Mete.  (Mass.)  346. 

27.  Mutual  iiiiHtake.  —  Mutual  mis- 
take  as  to  the  quality  of  land,  from  which 
one  party  has  agreed  to  dig  gravel  for  the 
benefit  of  the  other,  is  no  ground  for  dis- 
missing a  bill  in  equity  by  the  latter,  for  the 
specific  performance  of  a  subsequent  writ- 
ten agreement  by  which  other  land  was 
substituted  by  the  parties,  after  the  dis- 
covery  of  the  mistake,  and  the  former 
agreed  to  pay  for  the  first  land.  Old  Colony 
R.  Corp.  v.  Evans,  6  Gray  (Mass.)  2$. 

28.  Rellefffranted— Decree.— Al- 
though the  vendor  of  land  for  a  railroad 


158 


SPECIFIC   PERFORMANCE,  20.— SPLi-D. 


If. 


depot  is  not  shown  to  have  been  entitled  to 
a  railroad  pass  (ur  himself  and  family,  yet 
if  the  successor  of  the  company  with  whom 
the  contract  is  made,  by  its  bill,  offers  such 
a  pass,  a  decree  for  specific  performance 
predicated  on  such  offer,  and  mt;king  pro- 
visions for  its  enforcement  in  the  future,  is 
proper.  Hall  v.  Peoria  &*  £.  A'.  Co.,  143 
///.  163.  32  N.  E.  Rep.  598. 

Though  the  parties  have  stipulated  for 
the  conveyance  of  a  right  of  way  by  a  deed 
in  fee  simple,  yet  where  it  appears  that  a 
right  of  way  only  is  desired,  that  is  all  that 
the  court  will  decree  shall  be  conveyed. 
Ottumwa,  C.  F.  6-  St.  P.  li.  Co.  v.  Mc  Will- 
iams, 29  Am.  &•  Eiig.  A'.  Cas,  544,  7 1  /owa 
164.  32  A'.  W.  Rep.  315. 

Where  a  contract  for  the  purchase  of 
land,  by  a  company,  provides  that  the  pur- 
chase money  is  to  be  "  p;iid  in  eight  per 
cent,  preferred  stock  "  of  tlie  company ;  and 
the  court  decrees  that  the  company  issue 
and  deliver  in  payment  of  the  purchase 
money,  its  stock  guaranteed  to  pay  eight 
per  cent,  thereon,  it  is  error.  Dickinson  v. 
Chesapeake  &*  O.  R.  Co.,  7  W.  Va.  390. 

29.  DaiiingcH.— A  court  of  equity  will 
not  give  damages  for  failure  of  a  railroad 
to  ship  plaintiff's  freight  in  accordance  with 
a  contract  to  such  effect,  where  specific  per- 
formance of  the  contract  is  impnicticable. 
Atlanta  i»*    W.  P.  R.  Co.  v.  Speer,  32  Ga. 

5  so- 
on a  breach  of  an  agreement  to  give 
land  for  stock,  if  a  specific  performance  can- 
not be  decreed,  compensation  in  damages 
will  be  awarded— not  measured,  necessarily, 
by  the  nominal  value  of  the  stock,  but  by 
reference  to  the  land  which  ought  to  have 
been  conveyed,  and  such  damages  as  may 
have  resulted  from  delay  in  the  perform- 
ance. Dayton  &*  C.  R.  Co.  v.  Hatch,  i 
Disney  {Ohio)  84. 


SPECULATIVE  DAMAGES. 

Generally,  see  Damages,  43-45, 

In  actions  for  injuries  to  children,  see  Chil- 
dren, Injuries  to,  18U. 

—  condemnation  proceedings,  see  Eminicnt 
DOMAIN,  671. 

Under  English  compulsory  purchase  acts, 
see  Eminent  Domain,  1 108. 


SPEED. 
Admissibility  of  evidence  as  to  rate  of,  see 
Death  by  Wrongful  Act,  227t 


Allegation  of  unlawful   rate,  see  Animals, 

Injuries  to,  345. 
Assumption  of  risk  from  running  at  high  rate 

of,  see  Emplov£s,  Injuries  to,  200. 
At  crossings,  instructions  as  to  excessive, 

see  Crossings,  Injuries,  etc.,  at,  350. 

—  farm  crossings,  see  Farm  Crossings,  12. 
Burden  of  proof  to  show  undue,  see  Animals, 

Injuries  to,  502. 

City  ordinances  regulating  rate  of,  see 
Streets  AND  Highways,  317-331. 

Competency  of  evidence  as  to,  see  Evidence, 
31. 

Construction  of  charter  as  to  rate  of,  ice 
Street  Railways,  71. 

Contributory  negligence  in  crossing  track 
where  train  is  running  at  unlawful,  see 
Crossings,  Injuries,  etc.,  at,  320. 

running  at  high  rate  of,  see  Em- 
ployes, Injuries  to,  363, 364. 

Criminal  prosecution  for  unlawful,  see  Crim- 
inal Law,  47. 

Driving  car  at  excessive,  liability  for  injury 
to  child,  see  Children,  Injuries  to,  50. 

—  over  crossing  at  too  rapid,  see  Crossings, 

Injuries,  etc.,  at,  278. 

—  street-car  at  rapid,  over  railway  crossing, 

see  Street  Railways,  500. 
Duty  regarding,  with  respect  to  licensees, 
see  Licensees,  Injuries  to,  10. 

—  to  check,  on  discovery^of  person  on  track, 

see  Trespassers,  Injuries  to,  61-64. 

employes  as  affected  by,  see  Employes, 

Injuries  to,  160. 

look  and  listen  as  affected  by  unlaw- 
ful, see  Crossings,  Injuries,  etc,  at, 
268. 

slacken  at  crossings,  see  Animals,  In- 

JURIES  to,  108. 

to  avoid  injury  to  animals,  see  Ani- 
mals, Injuries  to,  69-72. 

trespassers  as  regards,  see  Trespass- 
ers, Injuries  to,  33-35. 

Effect  of  excessive,  to  excuse  contributory 
negligence,  see  Death  by  Wrongful  Act, 
107. 

on  question  of  contributory  negligence 

in  getting  off  moving  car,  see  Carriage 
OF  Passengers,  421-424. 

Evidence  of  diminution  of.  after  accident,  see 
Evidence,  85. 

rate  of,  n  action  for  injury  at  crossing, 

see  Crossings,  Injuries,  etc.,  at,  346. 

Excess  of,  of  cable  car,  see  Cable  Railways, 
10. 

Illegal  rate  of,  as  the  proximate  cause  of 
damage,  see  Animals,  Injuries  to,  36. 

Injuries  occasioned  by  violation  of  ordinances 
restricting,  see  Streets  and  Highways, 
877. 


SPLITTING— STATE  AID. 


159 


laitructions  m  to  »te  of,  see  Death  by 
Wrongful  Act,  321. 

—  relative  to,  see  Nbgligence,  llO. 

Liability  for  driving  at  exceisive  or  pro- 
hibited rate  of,  see  Street  Railways, 
480,481. 

injuries  at  crofliingt  as  dependent  upon 

rate  of,  see  Crossings,  Injuries,  etc.,  at, 
68-189. 

—  to  paaienger  for  unlawful  or  excessive,  see 

Cakkiagr  of  Passengers,  108. 

Necessity  of  checking,  after  giving  signal 
near  crossing,  see  Crossings,  Injuries, 
etc.,  at,  123. 

Negligence  with  respect  to,  when  question 
offset,  see  Animals,  Injuries  to,  545. 

Non-liability  for  acts  of  fellow-  servant  in  re- 
spect to,  see  Fellow-servants,  33. 

Of  hand-car,  contributory  negligence  as  to, 
see  Employes,  Injuries  to,  391. 

—  street-cars,  negligence  respecting,  see 
Street  Railways,  350. 

ordinances  regulating,  see  Street  Rail- 
ways, 263. 

—  train  as  affecting  right  to  board  while 

moving,  see   Carriage  of  Passengers, 
382-386. 

—  —  while  on  drawbridge,  see  Bridges,  etc., 

74 

—  trolley-car.  liability  for  excessive,  see 
Electric  Railways,  21. 

Opinion  of  witness  as  to,  see  Witnesses, 

128-130. 
Presumption  upon  proof  of  prohibited  rate  of, 

see  Animals,  Injuries  to,  481. 
Proof  of  use  of  excessive,  see  Death  by 

Wrongful  Act,  261. 
Rate  of,  in  cities  and  villages,  see  Animals, 

Injuries  TO,  210-212. 
when  question  for  jury,  see  Death  by 

Wrongful  Act,  300. 
Relevancy  of  evidence  to  show  unlawful  rate 

cf,  see  Animals,  Injuries  to,  400. 
Rules  and  orders  respecting  rate  of,  see  Em- 
ployes, iNJURIk ;)  TO,  452. 
Running  at  excessive,  when  negligence,  see 

Negligenck,  27-31,  41,  42. 
Showing  failure  to  slacken,  see  Death  by 

Wrongful  Act,  263. 
Sufficiency  of  evidence  to  show  undue,  see 

Animals,  Injuries  to,  457. 
Whether  given  rate  is  excessive  a  question 

for  jury,  see  Negligence,  70. 

BPLITTIHO 
Of  causes  of  action,  see  Actions,  13 ;  Ani- 
mals, Injuries  to,  303;  Fires,  141. 

8PBEAD. 
Of  fires,  liability  for,  see  Fires,  79-98. 


sFsmos. 

Of  water,  loss  of  use  of,  as  an  element  of  land 
damages,  see  Eminent  Domain,  717. 

Reservation   of  access   to,    in   deeds,    see 
Deeds,  42. 

See  also  Waters  and  Watercourses, 
30,  31. 


SPUR  TRACKS. 
Taking  land  for,  when  for  a  public  use,  see 
Eminent  Domain,  1 85. 


STABLES. 
When  exempt  from  taxes,    see  Taxaiion, 
172. 


STAGE-COACH  COMPANIES. 

Analogy  between  railroads  and,  see  Carriage 

OF  Passengers,  O. 
Duties  and  liabilities  of,  see  Carriage  or 

Passengers,  07-105. 


STAIRS. 

At  stations,  liability  for  injuries  caused  by 
defects  in,  see  Stations  and  Depots, 
lOl. 


STAIRWAT. 

Duty  of  company  as  to  safety  of,  see  Eu* 

vatku  Railways,  202. 
Injuries  to  passengers  from  failure  to  light, 

see  Elevated  Railways,  209. 


STAMPS. 
Stamp  duty  on  subscriptions,  see  Subscrip* 
TioNS  TO  Stock,  12. 


STANDING  BT. 
When  raises  an  estoppel,  see  Estoppel,  26, 
27. 

STATE  AID. 

Enforcement   of  bonds  by  mandamus,  see 
Mandamus,  20. 

I.  ALABAMA i6o 

II.  ABKAHSA8;    OAUrOBinA;   DSLA- 

WAEE l6s 

III.  FLOBIDA;  OSOBOIA;  KEHTVOKT..  i66 

IV.  LOUIBIAHA 169 

V.  MARYLAND;  MINNESOTA;  MI8BI8- 

8IPPI 171 

▼I.  MIBSOOEI;  NEW  TOBK 173 

▼n.  NORTH    CAEOLINA;    PENNBTLVA- 

NIA 175 

yni.  SOUTH  CAEOLINA 178 

IZ.  TENNESSEE;  TEXAS;  TIBOINIA..  l8o 


160 


STATE   AID,  1-4. 


;.«: 


II 


I.  ALABAMA. 

1.   Validity   and    coustriiction   of 

statutes.— Ala.  Act  of  Feb.  14.  1856,  "for 
the  further  security  and  protection  of  the 
state  in  railroad  loans,"  applies  to  the  ex- 
tension of  the  loan  to  the  Mobile  &  Ohio 
railroad  company  under  the  previous  act 
of  Jan.  12,  1856.  The  provision  of  said 
act  which  requires  a  railroad  company,  ap- 
plying for  a  loan  or  extension  of  a  debt,  to 
consent  to  a  forfeiture  of  its  charter  in  the 
event  of  its  failure  to  make  payment  accord- 
ing to  the  terms  of  its  loan  is  independent 
of  the  other  provisions,  which  require  its 
consent  to  a  declaration  of  a  forfeiture  of 
its  charter  by  the  legislature,  and  that  the 
forfeiture  so  declared  shall  be  complete  and 
eiTectual  for  all  purposes  whatever  without 
any  judicial  proceedings ;  is  not  obnoxious 
to  the  constitutional  objections  that  it  re- 
quires the  company  to  consent  to  the  ex- 
ercise of  judicial  power  by  the  legislature, 
and  impairs  the  obligation  of  contracts ; 
and  must  be  complied  with  by  any  railroad 
company  applying  for  a  loan  or  extension 
of  a  debt,  however  difficult  such  compliance 
may  be.  Mobile  &*  O.  Ji.  Co.  v.  S/ii/e,  29 
A/a.  573- 

Alabama  Act  of  Feb.  17,  1854,  to  grant 
aid  to  plaintif!  company,  having  been  ac- 
cepted and  acted  on  by  the  company,  be- 
came binding,  and  it  was  not  competent  for 
the  legislature,  by  the  subsequent  act  of 
Feb.  24,  i860,  to  impose  additional  limita- 
tions on  the  loan  authorized  by  the  former 
act ;  nor  can  the  latter  act  operate  as  a  rev- 
ocation of  the  authority  conferred  on  the 
governor  by  the  former.  Therefore,  the 
company  was  entitled  to  receive  from  the 
public  treasurer  the  sums  loaned  by  the 
former  act.  Tennessee  &*  C.  A'.  Co.  v.  Moore, 
36  Ala.  371. 

Ala.  Internal  Improvement  Law  of  1869- 
70,  while  providing  that  the  state  shall  have 
a  first  and  permanent  lien  for  its  protection, 
when  it  has  indorsed  bonds  under  that  act, 
does  not  forbid  railroad  corporations  from 
creating  other  liens  of  the  state  ;  especially 
a  lien  to  secure  the  bonds  indorsed.  Kelly 
V.  Alabama  6-  C  R.  Co.,  58  Ala.  489,  21  Am. 
Ry.  Rep.  1 38. 

Ala.  Act  approved  February  23,  1876,  au- 
thorizing the  retirement  of  bonds  of  the 
Alabama  &  Chattanooga  R.  Co.,  which  had 
been  indorsed  by  the  governor  in  the 
name  of  the  state,  and  the  substitution  of 


new  bonds  in  their  stead,  embraces  and  ap- 
plies to  all  the  indorsed  bonds  bearing  date 
in  1869,  and  makes  no  distinction  between 
those  regularly  issued  and  those  reported 
by  the  "state  debt  commissioners"  as 
"  overissue."  State  ex  rel.  v.  Cobb,  7  Am.  &* 
Eng.  R.  Cas.  147,  64  Ala.  127. 

2.  Application  for  loan.— When  it 
appears  that  any  of  the  railroad  companies 
to  which  loans  and  appropriations  of  the 
"  three  per  cent,  fund  "  are  granted  by  the 
second  section  of  the  act  of  Feb.  18,  i860, 
applied  for  the  same  within  six  months  after 
the  passage  of  said  act,  and  in  the  manner 
prescribed  therein,  and  that  such  loan  and 
appropriation  was  postponed  by  the  gov- 
ernor, a  subsequent  application  may  be 
made  in  renewal  and  continuation  of  the 
first  application,  which  was  so  postponed. 
Such  postponement  does  not  forfeit  the 
right  to  the  loan  and  appropriation  granted 
under  the  act.  Ex  parte  Selma  &*  G.  R.  Co., 
46  Ala.  423. 

And  an  application  so  made  in  renewal 
and  continuation  of  such  first  application, 
made  within  the  six  months  after  the  pas- 
sage of  said  act,  and  postponed,  does  not 
come  too  late,  if  made  to  the  governor, 
elected  and  induce!  into  office  under  the 
present  constitution.  Ex  parte  Selma  &• 
G.  R.  Co.,  46  Ala.  423. 

3.  ludorscuiciit  of  boudH  by  state 
— Peiibrniaiice  of  coiiditiou  by  com> 
paiiy.— Bonds  of  a  railroad  were  indorsed 
by  a  state  with  the  requirement  that  the 
money  arising  from  their  sale  should  be  used 
exclusively  for  building  the  road.  Held, 
that  the  obligation  of  the  company  was 
satisfied  when  the  road  was  completed  at  a 
cost  equal  to  or  greater  than  the  amount  of 
the  bonds,  by  whatever  fund  done.  Ah' 
bama  v.  Burr,  115  £/.  5.  413, 6  Sup.  Ct.  Rep. 
81. 

4.  Effect  of  Invalid  Indorsement 
on  company's  linbility  on  the  bonds 
—Negotiability  of  bonds.— Where  the 
legislature  passes  a  law  authorizing  the 
state  to  indorse  the  bonds  of  a  railroad 
company,  the  fact  that  the  indorsement  is 
procured  in  fraud  of  the  internal  improve- 
ment law,  and  the  indorsement,  therefore, 
is  void,  will  not  release  the  company  from 
liability  on  the  bonds  which  it  has  secured 
by  a  deed  of  trust  on  its  property.  Kelly 
V.  Alabama  &»  C.  R.  Co.,  58  Ala.  489,  21 
Aw.  Ry.  Rep.  138. 

Railroad  bonds  indorsed  by  the  state  pay- 


STATE   AID,  6,  6. 


161 


able  to  A.  B.  or  bearer  have  all  the  inci- 
dents  of  commercial  paper.  Reid  v.  Bank 
of  Mobile,  14  Am.  &»  Etig.  R.  Cas..  554,  70 
Ala.  199.— Distinguishing  Blackman  v. 
Lehman,  63  Ala.  547. 

5.  Lialiility  of  stockholders  and 
maiiagerM  for  fi-aud  or  misappro- 
priation of  fliuds. — Where  a  state  has 
indorsed  the  bonds  of  a  railroad,  and  after- 
wards sues  the  stockholders  and  managers 
of  the  road  for  fraud  in  procuring  indorse- 
ments, and  for  a  misappropriation  of  funds, 
as  the  liability  of  defendants  is  purely 
statutory,  there  can  be  no  recovery  unless 
the  declaration  states  facts  that  bring  them 
within  the  penalties  of  the  statutes  author- 
izing the  bonds  and  indorsements.  Ala- 
bama  v.  Burr,  115  CA  5.  413,  6  Sup.  Ct.  Rep. 
81. 

A  state  indorsed  bonds  of  a  railroad  un- 
der a  law  which  provided,  among  other 
things,  that  individual  stockholders  should 
be  liable  to  pay  such  bonds  as  were  in- 
dorsed through  the  fraud  of  the  company. 
Held,  that  the  stockholders  were  liable  only 
in  a  suit  to  collect  the  amount  of  the  bonds, 
and  not  liable  for  losses  falling  on  the  state 
by  reason  of  the  indorsement.  Alabama 
V.  Burr,  115  U.  S.  413,  6  Sup.  Ct.  Rep.  81. 

Where  a  state  lost  large  sums  by  reason 
of  having  indorsed  certain  railroad  bonds, 
and,  under  the  statute,  sues  stockholders 
for  fraud  in  procuring  its  indorsement,  and 
for  a  misappropriation  of  funds,  it  is  not 
enough  to  show  that  the  loss  was  by  reason 
of  the  indorsement.  It  must  show  that  the 
loss  was  by  reason  of  the  fraud.  Alabama 
V.  Burr,  115  t/.  5.  413,  6  Sup.  Ct.  Rep.  81. 

G.  Liability  of  state  in  cases  of 
IVaud,  niistalce,  or  overissue.— Un- 
der the  provisions  of  the  act  approved  Nov. 
17,  1868,  relating  to  the  Wills  Valley  R. 
Co.  and  the  Northeast  and  Southwest  R. 
Co.,  it  was  made  the  duty  of  the  governor 
to  indorse,  in  the  name  of  the  state,  the 
bonds  of  the  company  owning  the  fran- 
chises r  f  the  corporation  last  named,  when- 
ever it  should  appear  to  him,  "by  satis- 
factory proof."  that  particular  sections  of 
the  road  had  been  finished,  completed,  and 
equipped ;  and  he  was  required  by  the  act 
approved  Feb.  19,  1867,  to  make  such  in- 
dorsements on  bonds,  on  the  afllidavits  of 
the  president  and  chief  engineer,  and  a  res- 
olution of  the  board  of  directors,  showing 
and  promising  compliance  with  the  con- 
ditions of  Che  act.  Under  these  sututory^ 
7  D.  R.  D.~u 


provisions,  if  satisfactory  proof  was  made 
to  the  governor  of  the  completion  and 
equipment  of  a  specified  number  of  miles 
of  the  road,  and  the  affidavits  and  resolu- 
tion required  by  the  statute  were  made  and 
presented  to  him,  it  was  his  duty,  not  hav- 
ing reason  to  doubt  the  truth  of  the  facts 
as  stated  and  certified,  to  indorse  the  bonds 
of  the  company  to  the  amount  thereby 
shown  to  be  proper ;  and  such  indorsements 
would  be  a  valid  exercise  of  his  statutory 
power,  and  would  be  binding  on  the  state, 
although  it  might  be  made  to  appear,  in  a 
subsequent  controversy  between  individual 
bondholders,  that  the  affidavits  were  false, 
and  that  he  had  in  fact  indorsed  more  bonds 
than  the  company  was  entitled  to  receive. 
State  ex  rel.  v.  Cobb,  7  Am.  &*  Eng.  R.  Cas, 
147,  64  Ala.  127. 

The  statute  itself  contains  provisions  in- 
tended to  protect  the  state  against  indorse- 
ments obtained  by  fraud  or  mistake,  or 
bonds  sold  by  the  company  at  less  than 
ninety  cents  on  the  dollar ;  and  exact  con- 
formity between  the  amount  of  bonds  in- 
dorsed and  the  actual  length  of  the  road, 
at  th'j  rate  of  $16,000  per  mile,  is  not  a 
"term,  condition,  or  requirement  of  the 
statute,"  on  which  depended  the  power  and 
duty  of  the  governor  to  make  the  indorse- 
ments. State  ex  rel,  v.  Cobb,  7  Am,  &*  Eng. 
R.  Cas.  147,  64  Ala.  127. 

The  object  and  purpose  of  the  indorse- 
ment of  the  bonds  by  the  state,  under  the 
statutes  above  mentioned,  was  to  improve 
their  credit  and  facilitate  their  currency. 
On  their  face,  they  are  negotiable  instru- 
ments by  the  general  commercial  law,  which 
must  be  presumed  to  be  of  force  in  Boston, 
where  they  are  made  payable,  and  are  capa- 
ble of  transfer  by  delivery;  and  the  state 
is  liable  as  the  indorser  of  such  paper. 
State  ex  rel.  v.  Cobb,  7  Am.  6-  Eng.  R.  Cas. 
147,  64  Ala.  127. 

The  bonds  being  negotiable,  regular  on 
their  face,  and  reciting  in  the  indorsement 
a  compliance  by  the  company  with  the  con- 
ditions of  the  statute,  an  innocent  holder 
for  value  is  not  affected  by  any  fraud  or 
mistake  in  their  overissue ;  and  the  dis- 
honor of  the  unpaid  interest  coupons  would 
not  charge  him  with  notice  of  any  defect  in 
them.  State  ex  rel.  v.  Cobb,  7  Am.  &*  Eng. 
R.  Cas.  147,  64  Ala.  137. 

The  statutes  do  not  require  that  the 
bonds  phall  be  numbered,  nor  that  they 
shall  be  indorsed  in  commercial  order,  nor 


162 


STATE  AID,  7. 


p   •> 


111 


■•.J 


that  they  shall  be  sold  or  negotiated  by  the 
company  >n  any  particular  order ;  and  the 
numbers  on  the  several  bonds  do  not  in- 
dicate anything  as  to  the  time  when  they 
were  issued  or  negotiated.  State  i.v  rel.  v. 
Cobb,  7  Am.  &'EHg.  Ji.  Cas.  147.  64  Ala.  127. 
The  act  of  the  governor  in  1871,  in  refus- 
ing to  pay  interest  on  the  bonds  numbered 
abuve  4720,  if  held  to  be  the  act  of  the 
state,  was  strictly  ex  parte,  and  cannot  affect 
the  rights  of  the  holders  of  those  bonds. 
State  ex  ret.  v.  Cobb,  7  Am.  &*  Eng.  R.  Cas. 
147,  64  Ala.  127. 

7.  Liability  of  state  wliere  indorsed 
bonds  are  mlsappropritited.— By  the 
act  of  Feb.  I,  1870,  providing  for  loaning 
the  credit  of  the  state  in  aid  of  railroads,  it 
was  enacted  that  after  the  completion  of 
the  first  twenty  miles  of  a  road,  the  state 
should  indorse  its  bonds,  the  proceeds  of 
which  should  be  applied  to  the  further  con- 
struction of  the  road.  Held,  that  the  state 
was  in  the  nature  of  an  accommodation  in- 
dorsee and  was  not  liable  where  the  money 
was  used  for  constructing  the  first  twenty 
miles  of  the  road,  except  as  to  a  bona  fide 
holder  of  the  bonds  for  value.  Gilman  v. 
New  Orleans  &*  S.  R.  Co.,  72  Ala.  566  — 
Followed  in  Morton  v.  New  Orleans  & 
S.  R.  Co.,  79  Ala.  igo.— Morton  v.  New  Or- 
leans &>  S.  R.  Co..  79  Ala.  590.— Following 
Gilman  v.  New  Orleans  &  S.  K.  Co.,  72  Ala. 
566. 

The  company  having  transferred  its  bonds 
to  the  contractors  engaged  in  the  construc- 
tion of  the  first  twenty  miles  of  the  road, 
and  after  procuring  the  state's  indorsement 
on  the  completion  of  the  said  twenty  miles 
of  road,  again  delivered  to  him  in  payment 
of  the  company's  debt  to  him  ;  such  use  of 
them  being  unauthorized,  and  fraudulent 
against  the  state,  no  liability  rested  on  it 
by  virtue  of  its  indorsements,  white  the 
bonds  remained  in  the  hands  of  said  direct- 
ors, or  were  in  the  hands  of  .ny  other  per- 
son chargeable  with  knowledge  of  the  mis- 
application. Gilman  v.  New  Orleans  &*  S. 
R.  Co.,  72  Ala.  566. 

But,  such  indorsed  bonds  being  negoti- 
able instruments,  and  governed  by  the  same 
rules  as  all  other  commercial  paper,  the 
state  would  become  liable,  as  an  accom- 
modation indorser,  to  any  bona  fide  holder 
who  acquired  them  for  value,  in  the  usual 
course  of  business,  without  knowledge  or 
notice,  actual  or  constructive,  of  tn  e  mis- 
application by  the  company  or  its  immedi- 


ate transferee.  Gilman  v.  New  Orleans  5* 
5.  R.  Co.,  72  Ala.  566.  Morton  v.  New  Or- 
leans &-  S.  R.  Co..  79  Ala.  590. 

When  a  subsequent  holder  of  such  bonds 
seeks  to  enforce  the  state's  liability,  as  in- 
dorser, the  original  misappropriation  of 
them  being  shown,  the  law  cast"-  on  him  the 
burden  of  proving  that  he  acquired  them 
in  good  faith,  fur  value,  and  in  the  usual 
course  of  business.  Gilman  v.  New  Orleans 
&•  S.  R.  Co..  72  Ala.  566. 

One  who  has  exchanged  such  bonds  for 
bonds  in  another  company  is  a  holder  for 
value,  without  regard  to  the  market  value 
of  the  bonds  of  either  company.  Gilman 
V.  New  Orleans  &*  S.  R.  Co.,  72  Ala.  566. 

In  such  case  the  presumption  is  of  a 
want  of  notice,  since  it  is  not  probable, 
though  possible,  that  notice  of  the  original 
fraud  or  illegality  would  be  communicated 
to  a  subsequent  holder,  thereby  defeating 
the  transfer;  and  the  burden  of  proving 
notice  i. sting  on  the  party  who  assails  the 
title  of  the  holder,  it  is  not  enough  to  show 
only  that  he  acc^uired  the  bonds  under 
circumstances  which  would  have  excited, 
in  the  mind  of  a  prudent  man,  suspicion  as 
to  the  title  of  the  party  from  whom  he  pur- 
chased. Oilman  v.  New  Orleans  &-  S.  R. 
Co.,  72  Ala.  566. 

Of  the  holders  of  the  y.\o  indorsed  bonds 
issued  by  the  railroad  company,  only  those 
who  are  purchasers  for  value  without  notice 
are  entitled  to  be  subrogated  to  the  statu- 
tory lien  and  pi  lority  of  the  state ;  but,  as 
against  the  railroad  company,  which  has 
waived  the  defense  cf  a  partial  failure  of 
consideration,  and  as  agair.st  the  complain- 
ant in  the  original  bi  I,  a  subsequent  judg- 
ment creditor  of  the  railroad  company,  all 
are  entitled  to  share  in  the  security  afforded 
hy  the  deed  of  'rust,  and  to  have  it  en- 
forced for  their  benefit.  Morton  v.  New  Or- 
leans  &*  S.  R.  Co.,  79  Ala.  590. 

Negotiable  bonds  not  due,  with  attached 
coupons  past  due  and  unpaid,  do  not  there- 
by appear  dishonored  on  their  face  ;  but  the 
presence  of  such  unpaid  coupons  is  a  mate- 
rial circumstance  bearing  on  the  question 
whether  the  purchaser  acquired  them  in 
good  faith  and  without  notice.  Morton  v. 
New  Orleans  &*  S.  R.  Co.,  79  Ala.  590. 

The  bonds  in  this  case  referring  on  their 
face  to  the  deed  of  trust  executed  by  the 
railroad  company  for  their  security,  which 
deed  expressly  provided  that  the  entire 
debt,  principal  and  interest,  should  become 


IN 


STATE   AID,  8,  9. 


168 


due  nnd  payable  within  ninety  days  after 
refusal  to  pay  the  semi-annual  interest  due 
by  the  coupons,  on  demand  made  at  the 
agency  of  the  corporation  in  the  city  of 
New  York,  a  purchaser  having  knowledge 
of  such  demand  and  refusal,  at  the  time  lie 
acquired  the  bonds,  cannot  claim  to  be  an 
innocent  purchaser  without  notice;  but 
when  he  has  proved  the  payment  of  value, 
the  onus  of  proving  knowledge  or  notice  of 
such  extrinsic  fact  is  on  the  party  who 
seeks  to  impeach  his  title.  Morton  v.  New 
Orleans  &*  S.  Ji.  Co.,  79  Ala.  590. 

The  statute  of  Feb.  21,  1870,  under  which 
these  bonds  were  indorsed  and  provision 
made  for  their  payment,  and  the  repealing 
statute  of  March  17,  1875,  being  public 
statutes,  every  purchaser  and  holder  of  the 
bonds  is  chargeable  with  knowledge  of  their 
provisions;  and  although  the  repealing 
statute  may  not  amount  to  any  open  re- 
pudiation by  the  state  of  its  liability  as  in< 
dorser  (n  point  not  decided),  "  it  is  sufficient 
to  put  a  subsequent  purchaser  on  inquiry, 
and  to  charge  him  with  notice  of  the  fact 
that  there  was  something  wrong  about  the 
bonds,  especially  when  taken  in  connection 
with  the  other  fact  that,  at  the  time  of  such 
repeal,  the  coupons  fur  several  years  past  due 
and  unpaid  were  attached  to  them."  Morton 
V.  AV?</  Orleans  &*  S.  A'.  Co.,  79  Ala.  590. 

8.  Extent  of  the  statutory  lien  of 
the  state.— Under  the  act  of  Feb.  21, 
1870,  authorizing  the  indorsement  by  the 
governor,  in  the  name  of  the  state,  of  the 
bonds  of  railroad  companies,  although  no 
indorsement  could  be  made  until  twenty 
continuous  miles  of  road  had  been  finished, 
completed,  and  equipped,  and  subsequent 
indorsements  were  authorized  only  as  sec- 
tions of  five  continuous  miles  were  finished, 
completed,  and  equipped,  yet  the  statutory 
lien  given  to  the  state,  on  account  of  such 
indorsements,  was  not  limited  or  restricted 
to  the  portions  of  the  road  then  finished, 
nor  to  the  property  then  owned  by  the  rail- 
road company,  but  extended  to  the  entire 
road,  its  franchises,  and  all  property  then 
belonging  to  it,  or  afterwards  acquired; 
and  this  lien,  by  the  express  words  of  the 
statute,  was  declared  prior  and  superior  to 
all  liens  or  encumbrances,  created  by  the 
railroad  company,  and  all  other  claims  ex- 
isting or  to  exist  against  it.  Colt  v.  Barnes, 
7  Am.  &»  Eng.  R.  Cas.  129,  64  Ala.  108. 

Prior  to  the  execution  of  a  conveyance  of 
a  railroad,  the  purchasing  company,  being 


engaged  in  the  construction  of  its  road  and 
contemplating  obtaining  the  state's  indorse- 
ment of  its  bonds,  under  the  statute  pro- 
viding for  furnishing  the  aid  and  credit  of 
the  state  to  railroads,  had,  by  deed  of  trust, 
conveyed  to  trustees  its  property  then 
owned  and  thereafter  to  be  acquired  as  in- 
demnity to  the  state  against  liability  to  be 
incurred  by  the  indorsement;  and  after  the 
purchase  the  purchasing  company,  having 
finished  twenty  miles  of  its  original  Ime  of 
road,  and  also  five  miles  of  the  line  of  the 
road  purchased  by  and  conveyed  to  it,  ob- 
tained the  state's  indorsement  of  its  bonds, 
under  the  statute,  for  the  number  of  miles 
so  finished  by  it.  Held,  that  the  lien  of 
the  state  under  the  statute,  and  the  lien 
created  by  the  deed  of  trust,  were  not  par- 
amount, but  subordinate  to  the  interest  and 
claim  of  the  sellmg  company,  reserved  by 
its  deed,  on  the  property  covered  thereby. 
Tennessee  &*  C.  K,  Co.  v.  East  Ala.  R.  Co., 
73  Ala.  426. 

Nor  were  the  rights  of  the  selling  com- 
pany in  the  property  covered  by  the  said 
deed  impaired  or  otherwise  affected  by  a 
decree,  obtained  on  bill  in  equity  filed  by 
the  trustees,  to  which  the  selling  company 
was  not  a  party,  foreclosing  the  deed  of 
trust  and  declaring  that  the  bonds  indorsed 
by  the  state  constituted  a  prior  lien  on  the 
railroad,  franchises,  and  property  of  the  pur- 
chasing company,  and  that  the  holders  of 
the  bonds  were  subrogated  to  the  lien  and 
right  of  the  state,  and  should  first  be  paid 
out  of  the  proceeds  of  the  sale,  or  by  a  sale 
made  under  the  decree,  and  a  conveyance 
executed  to  the  purchaser.  Tennessee  &*  C. 
R.  Co.  v.  East  Ala.  R.  Co.,  73  Ala.  426. 

9.  Paramount  lien  of  state  en- 
forceable by  state  only.— The  reme- 
dies given  by  Ala.  Act  of  1869,  p.  70,  giving 
the  state  a  paramount  lien  on  railroads 
when  it  has  indorsed  bonds,  are  enforceable 
by  the  state  alone.  They  cannot  be  set  up  by 
the  purchasers  of  the  railroad,  in  a  contest 
between  them  and  the  holders  of  indorsed 
bonds,  secured  also  by  the  corporation's 
mortgage,  to  defeat  the  latter  in  foreclosing 
such  mortgage,  whatever  might  be  their 
effect  if  the  state  were  a  party,  and  the  hold- 
ers of  indorsed  bonds,  secured  also  by  the 
corporation's  mortgage,  should  seek  to  set 
up  rights  under  the  mortgage  to  embarrass 
the  state  in  pursuing  its  remedies.  Reify  v. 
Alabama  &*  C.  R.  Co.,  58  Ala.  489,  21  Am. 
Ry.  Rep.  138. 


164 


STATE  AID,  10-12. 


\ 

I  oRr 


m 


'-. 


c 


Is 


10.  Rights  of  bondlioldcrs— Coii- 
■trnctive  :•  tlcc.-Ahi.  Act  of  Feb.  19, 
1867,  authorized  tlie  governor  to  indorse, 
in  behalf  of  liie  state,  the  first  mortgage 
bonds  of  a  railroad  company,  bearing  inter- 
est Jit  eight  per  cent.  The  governor  did 
so,  and  referred  to  the  act  in  his  indorse- 
ment as  the  authority  therefor.  HM:  (i) 
that  he  was  authorized  to  indorse  bonds 
bearing  interest  at  eight  per  cent,  in  gold  ; 
(2)  that  dona  fide  holders  for  value,  of 
bonds  thus  Indorsed,  were  not  chargeable 
with  constructive  notice  of  the  fact  that 
the  bonds  were  not  first  mortgage  bonds. 
Young  V.  Montgomery  &*  E.  7\\  Co.,  2 
lVoods{U.  5.)  606. 

A  subsequent  act  (Ala.  Acts  1866-67,  p. 
680)  gave  the  governor  authority  to  indorse 
bonds,  notwithstanding  there  was  a  prior 
lien  on  the  railroad  ;  but  it  was  claimed  that 
this  law  was  not  legally  passed,  and  was 
therefore  null  and  void.  HeU,  that  if  valid, 
it  cured  any  defect  in  the  authority  of  the 
governor  to  indorse  the  bonds.  If  not 
valid,  it  was  not  constructive  notice  to  any- 
body of  anything.  Young  v.  Montgomery 
6-  E.  R.  Co.,  2  Woods  (U.  S.)  606. 

11.  Siibrogntion  of  boiidlioldcrs 
to  statutory  lien  of  Ktate.— This  stat- 
utory lien  is  declared  to  be  "  for  the  pay- 
ment by  said  company  of  said  bonds,  with 
the  interest  thereon,  as  the  same  becomes 
due  ";  and  a  railroad  company  having  exe- 
cuted a  mortgage,  or  deed  of  trust,  for  the 
benefit  of  all  its  bondholders,  and  after- 
wards made  default  and  become  bankrupt, 
the  holders  of  the  indorsed  bonds  are  entitled 
to  be  subrogated  to  the  statutory  lien  of 
the  state,  on  bill  filed  by  the  trustees  to 
foreclose  the  deed  of  trust,  and  are  entitled 
to  be  first  paid  out  of  the  proceeds  of  sale 
of  the  property.  Colt  v.  Barnes,  7  Am.  &* 
Eng.  R.  Cas.  129,  64  Ala.  108. 

Under  a  bill  to  foreclose  a  mortgage  or 
deed  of  trust,  executed  by  a  railroad  com- 
pany for  the  benefit  of  all  its  bondholders, 
liled  by  the  trustees,  against  the  purchasers 
of  the  equity  of  redemption  at  a  sale  in  bank- 
ruptcy, all  the  bondholders  liaving  come 
in  and  proved  their  claims  before  the  reg- 
ister under  a  reference,  and  his  report  dis- 
closing the  fact  that  some  of  the  bonds  had 
been  indorsed  by  the  state  under  the  pro- 
visions of  the  act  of  February  21,  1870, 
the  chancellor  must  of  necessity  determine 
the  order  in  which  the  claims  shall  be  paid ; 
and  since  no  motion  or  petition  is  neces- 


sary for  that  purpose,  it  is  immaterial  that 
the  holders  of  the  indorsed  bonds  asserted 
their  right  of  priority  by  petition,  and  that 
the  chancellor  acted  on  it  without  notice. 
Colt  v.  Barnes,  7  Am.  S-  Ettg,  R.  Cas,  1 29, 
64  Ala.  108. 

A  creditor  is  entitled  to  the  benefit  of  all 
securities  or  pledges  which  the  surety  may 
receive  from  the  principal  debtor,  either  for 
the  payment  of  the  common  debt  or  in- 
demnity of  the  surety  against  loss  by  reason 
of  his  liability.  Such  securities  are  regarded 
as  a  trust  created  for  the  protection  of  the 
debt,  and  a  court  of  equity  will  compel  the 
execution  of  the  trust.  Forrest  v.  Ludding- 
ton,  1 2  Am.  &>  Eng.  R.  Cas.  330,  68  Ala.  i . 

This  principle  applies  to  the  statutory  lien 
declared  by  the  statute  of  Feb.  19,  1867,  as 
amended  Sept.  22,  1868,  which  authorizes 
the  indorsement  by  the  state  of  railroad 
bonds  to  the  extent  of  $16,000  per  mile. 
This  lien,  by  the  terms  of  the  statute  creat- 
ing it,  is  a  security  for  the  payment  of  the 
indorsed  bonds,  and  operates  as  a  specific 
appropriation  of  the  property  and  franchises 
of  the  railroad  corporation  to  their  pay- 
ment, whenever  default  shall  be  made  by 
the  corporation  in  the  payment  of  the  prin- 
cipal or  interest.  Forrest  v.  Luddtngtort, 
12  Am.  &*  Eftg.  R,  Cas.  330,  68  Ala.  i. 

Persons  holding  a  mortgage  on  the  prop- 
erty of  a  railroad,  executed  after  the  in- 
dorsement of  the  railroad  company's  bonds 
by  the  state,  are  junior  encumbrancers,  and 
although  they  may  be  proper,  they  are 
not  indispensable  parties  to  a  bill  by  the 
holders  of  the  state-indorsed  bonds.  For- 
rest V.  Luddington,  12  Am.  &•  E^g.  R,  Cas. 
330,  68  Ala.  I. 

The  lien  created  and  declared  by  the  stat- 
ute may  be  enforced  by  the  bondholders 
whenever  default  is  made  in  the  payment  of 
the  interest  on  such  indorsed  bonds,  al- 
though the  governor  is  directed  by  the  stat- 
ute to  file  a  bill  for  foreclosure  on  default 
of  the  payment  of  the  bonds.  Forrest  v. 
Luddington,  12  Am.  S-  Etig.  R.  Cas.  330, 
68  Ala.  I. 

12.  Such  subrogation  not  pre- 
vented by  inability  to  sue  the  state. 
— A  state  indorsed  the  bonds  of  a  railroad 
company,  and  took  a  statutory  indemnity 
mortgage  on  the  railroad.  Held,  that  the 
fact  that  the  state  cannot  be  sued  was  no 
reason  why  the  holders  of  bonds  should  not 
be  subrogated  to  the  rights  of  the  state, 
and  have  the  benefit  of  the  security.    Young 


STATE  AID,  1& 


165 


V.  Monigomtry  5*  E.  R.  Co.,  a  Woods  (U.  S.) 

606. 

The  powers  and  summary  remedies  con- 
ferred on  the  state  by  the  statute  for  the 
enforcement  of  this  lien,  can  only  be  exer- 
cised by  the  state,  but  the  state,  having 
failed  to  exercise  them,  and  disclaimed  its 
liability  for  the  indorsed  bonds,  they  afford 
no  obstacle  to  a  resort  to  a  court  of  equity 
u'j  the  holders  of  the  bonds  for  the  enforce- 
ment of  the  statutory  lien  for  their  benefit ; 
and  the  fact  that  the  state  cannot  be  made 
a  party  to  the  suit,  no  relief  being  asked 
against  it,  does  not  affect  the  jurisdiction  of 
the  court,  or  the  equity  of  the  bill.  Forrest 
V.  Luddington,  1 2  Am.  <S-  Eng.  R.  Cas.  330, 
68  Ala.  I. 

The  holders  of  such  indorsed  bonds  who 
have  acquired  them  in  good  faith,  for  val- 
uable consideration  and  in  the  usual  course 
of  business,  are  entitled  to  be  subrogated  to 
the  statutory  lien  and  priority  of  the  state, 
on  the  company  becoming  insolvent,  and 
making  default  in  the  payment  of  the  bonds 
according  to  their  terms;  and  this  subroga- 
tion may  be  declared  in  a  suit  between  the 
holders  of  such  bonds,  some  of  whom  iirc 
nut  entitled  to  share  in  the  protection  given 
tu  the  others,  and  although  the  state  is  not 
a  party  and  cannot  be  sued.  Gibnan  v. 
New  Orleans  &*  S.  R.  Co..  72  Ala.  566.— 
Reviewing  Branch  v.  Macon  &  B.  R.  Co., 
2  Woods  (U.  S.)  385. 

II.  ASXANB&S ;  CALIFOBHIA ;  DELAWARE. 

\\\.  Arkansas.  —  Bonds  issued  in  the 
name  of  the  state  in  aid  of  a  railroad  are 
void,  even  in  the  hands  of  innocent  holders, 
where  the  act  of  the  legislature  authorizes 
them  only  on  a  vote  of  the  people,  and 
the  election  is  held  before  the  act  takes 
effect.  State  v.  Little  Rock,  M.  R.  6*  T.  R. 
Co.,  31  Ark.  701.— Quoting  Marsh  v.  Ful- 
ton County,  10  Wall.  (U.  S.)  676. 

When  a  loan  is  made  by  the  state  and  a 
mortgage  taken  to  secure  it  in  pursuance  of 
the  provisions  of  a  public  statute,  all  persons 
are  chargeable  with  notice  of  it,  and  the 
state  will  not  be  prejudiced  by  the  neglect 
of  her  agents  to  have  the  mortgage  recorded. 
Memphis  &*  L.  R.  R.  Co.  v.  State,  12  Am. 
&*  Eng.  R.  Cas.  322,  37  Ark.  632. 

Bonds  issued  by  the  state  under  the  Ark. 
Acts  of  July  21,  1868,  and  April  10,  1869,  to 
the  stock  of  railroads,  are  in  violation  of  the 
state  constitution,  and  the  state  has  no  lien 
on  the  roads,  or  their  income  which  will  be 


good  in  the  hands  of  a  purchaser  of  the 
bonds,  as  against  purchasers  of  the  road. 
Tompkins  v.  Little  Rock  &*  Ft.  S.  R.  Co., 
125  U.  S.  109,  8  Sup.  Ct.  Rep.  762. 

The  purchasers  of  such  road  at  a  foreclo- 
sure sale  took  it  freed  of  any  lien  or  encum- 
brance in  favor  of  the  state  by  reason  of 
such  aid,  and  neither  the  state,  nor  the 
holders  of  its  bonds,  can  sequester  the  in- 
come of  the  road.  Tompkins  v.  Little  Rock 
&*  Ft.  S.  R  Co.,  125  U.  S.  109,  8  Sup.  Ct. 
Rep.  762. 

Where  a  state  makes  a  loan  of  its  credit 
to  a  railroad  company  by  an  issue  of  its 
bonds,  conditions  in  the  law  authorizing 
such  bonds,  providing  for  a  tax  upon  the 
company,  equal  to  the  annual  interest,  and 
an  additional  special  tax,  until  the  bonds 
shall  be  fully  paid  off,  and  providing  that  in 
case  of  a  failure  of  the  company  to  pay  such 
tax  the  state  treasurer  might  sequester 
the  road,  appoint  a  receiver,  and  apply 
the  net  income  to  the  payment  of  any 
amount  in  default,  taken  together  does  not 
create  a  lien  on  the  railroad  property,  and 
neither  the  state  nor  the  bondholders  are 
entitled  to  sequestration  of  the  income  or 
profits  of  the  road  in  the  hands  of  purchaseis 
at  a  foreclosure  sale.  McKittrick  v.  Ar- 
kansas C.  R.  Co.,  152  U.  S.  473,  14  Sup.  Ct. 
Rep.  661.— Following  Tompkins  v.  Little 
Rock  &  It.  S.  R.  Co.,  125  U.  S.  109. 

Where  a  state  loans  its  credit  to  a  railroad 
company  by  issuing  its  bonds,  indorsing  the 
l)on(ls  Sy  the  company,  as  a  guarantee  of 
payment  by  the  state,  does  not  create  a  lien 
jn  the  railroad  property  so  as  to  prevent  a 
mortgage  of  the  road  to  secure  bonds  issued 
by  the  company.  McKittrick  v.  Arkansas 
C.  R.  Co.,  152  U.  S.  473,  14  Sup.  Ct.  Rep. 
661. 

A  state  loaned  its  credit  to  a  railroad  com- 
pany by  issuing  its  bonds,  retaining  the 
right  of  sequestration,  if  the  company  failed 
to  pay  interest  on  the  bonds,  and  a  further 
special  tax  to  pay  principal,  but  retained  no 
further  lien  on  the  road.  The  company 
mortgaged  its  road,  which  was  foreclosed, 
and  certain  bondholders  brought  suit  against 
the  company  and  the  purchasers,  seeking 
to  charge  the  road  in  the  hands  of  the  pur- 
chasers, held,  that  allegations  that  the 
president  "  brought  about "  the  foreclosure, 
and  that  the  purchasers  pretended  to  have 
purchased  as  trustees  for  him,  are  not  suffi- 
cient to  impeach  the  validity  of  the  sa^e ; 
neither  will  a  charge  that  the  president  of 


166 


STATE  AID,  14-16. 


I':' I' 


the  company  at  the  time  of  the  sale  was  in- 
terested in  the  purchase  as  a  holder  of  re- 
ceiver's certificates,  vvliicli  were  a  first  lien 
on  the  property,  eslaljlisii  fraud,  where  it 
does  not  appear  that  anything  would  have 
been  left  (or  the  mortgage  creditors,  if  there 
had  been  no  such  certificiites.  McKittrick 
V.  Arkansas  C.  H.  Co.,  152  U.  S.  473.  '4  ^»P- 

a.  Rtp.  661. 

Under  the  acts  of  1868  and  1869  creating  a 
statutory  mortgage  on  tlic  road  and  its  in- 
come, revenues,  and  earnings—  //<•/</,  that  the 
lien  tooic  effect  from  the  date  of  tlic  award 
«)( the  loan  by  tlie  railroad  coniniissioiiers  ; 
that  the  governor's  duty  in  issuing  the 
bonds  was  ministerial;  that  all  persons  were 
bound  to  lake  r.oiire  <f  the  existence  cf  the 
lien  and  of  wht  n  it  attached  ;  that  the  lien 
was  primarily  a  sicurity  for  the  lioldtrsof 
the  bonds;  that  as  between  the  stale  and 
the  company,  the  company  was  the  prin- 
cipal del)tor,  t!  c  p'sition  of  the  state  b<ing 
like  that  of  an  accommodation  indorstr; 
and  that  whether  the  bonds  were  or  were 
not  valid  obligations  as  against  the  state,  the 
company,  having  indorsed  and  negotiated 
them,  was  bound  upon  them  to  bona  fide 
holders,  who  could  avail  themselves  of  the 
liens.  Tompkins  v.  Little  Rock  &>  Ft.  5.  K. 
Co..  15  Fed.  Rep.  6. 

The  state  issued  its  bonds  in  aid  of  a  rail- 
road. The  company  transferred  them  with- 
out indorsement.  There  was  nothing  in  the 
recitals  of  the  bonds  from  which  a  lien  upon 
the  road  could  be  implied,  nor  in  the  recitals 
of  the  act  of  July  21, 1868,  under  which  they 
were  issued.  Held,  that  the  holders  could 
not  claim  a  lien.  (Caldwell,  J.,  dissenting.) 
Tompkins  v.  Liltlf  Rock  &^  Ft.  S.  R.  Co.,  21 
Fed.  Rep.  370,  5  McCrary  597,  18  Fed.  Rep. 
344 ;  reversed  in  i  :o  U.S.  160, 7  Sup.  Ct.  Rep, 
469.— Following  Florida  C.  R.  Co.  v. 
Schuttc,  103  U.S.  118.  Quoting  United 
States  V.  Union  Pac.  R.  Co.,  91  U.  S.  79. 
Reviewing  Chamberlain  v.  St.  Paul  &  S. 
C.  R.  Co.,  92  U.  S.  299. 

14.  Calil'ornia.— The  state  Const,  art. 
II,  §  10,  prohibiting  the  state  from  giving  or 
loaning  its  credit  to  or  in  aid  of  a  corpora- 
tion, does  not  prohibit  it  from  appropriating 
its  funds,  in  time  of  war,  to  aid  a  corpora- 
tion in  the  construction  of  a  railroad  to  be 
used  by  the  state  for  military  purposes. 
Ptopie  ex  rel.  v.  Pacheco,  27  Cal,  175. 

The  imposition  of  a  special  tax,  and  an 
appropriation  of  the  proceeds  of  the  same 
(0  be  paid,  when  collected,  to  a  railroad 


company,  or  its  creditors,  to'aid  in  building 
the  railroad,  in  consideration  of  valuable 
services  to  be  rendered  thereafter  to  tlie 
state  by  the  corporation,  is  not  a  gift  or 
loan  of  the  credit  of  the  state  to  or  in  aid  of 
a  corporation,  within  the  meaning  of  the 
above  section.  Peopl*  tx  rtl,  v.  Pachtco, 
37  Cal.  173. 

The  bonds  issued  by  the  Central  Pac.  R. 
Co.,  under  the  act  of  April  4,  1864,  are 
valid,  and  the  state  is  liable  upon  the  inter- 
est coupons  issued  in  accordance  with  the 
provisions  of  the  act.  Bank  of  California 
v.  Dunn,  66  Cal.  38,  4  Pac.  Rip.  916. 

The  interest  paid  by  the  state  on  bonds 
issued  under  act  of  April  4.  1864,  to  aid  de- 
fendant company,  is  not  a  loan  by  the  state 
to  the  company ;  nor  does  the  act,  or  the 
agreement  executed  by  the  company  in  pur- 
suance thereof,  give  the  company  any  alter- 
native right  to  perform  the  conditions  of 
the  agreement,  or,  at  its  option,  to  pay  the 
amount  paid  by  the  state  as  interest  on  the 
bonds.  The  amount  mentioned  in  the  act 
to  be  paid  by  the  company  upon  its  failure 
to  perform  any  of  the  conditions  imposed 
upon  .t  by  the  act  is  to  be  treated  as  a  pen- 
alty, and  not  as  liquidated  damages.  People 
V.  Central  Pac.  R.  Co.,  76  Cal.  29,  18  Pac. 
Rep.  90. 

16.  Delaware.  —  Under  the  act  of 
March  14,  1865,  authorizing  a  loan  of  state 
bonds  to  a  railroad  on  its  mortgage,  without 
interest  for  two  years  from  date,  and  $48,000 
of  the  bonds  to  be  retained  and  sold  by  the 
state  treasurer  to  pay  the  interest  for  the 
two  years,  which,  however,  were  not  sold, 
he  having  paid  the  same  out  of  the  cur- 
rent revenue  of  the  state— A^tV/,  that  the 
state  was  not  entitled  to  interest  for  the  two 
years,  function  &*  B.  R.  Co.  v.  Davis,  5 
Houst.  (Del.)  90. 

in.  nOBIDA  ;  OEOBOIA ;  KEHTUOXT. 

16.  Florida.  —  (i)  State  decisions.  ~ 
Where  a  state  constitution  prescribes  the 
subjects  for  which  the  legislature  may  au- 
thorize the  issue  of  state  bonds,  the  power 
of  the  legislature  is  limited  to  the  subjects 
specified;  and  the  limitation  need  not  be  in 
express  terms.     Holland  v.  StaU,  15  Fh. 

455. 

Under  the  act  authorizing  an  exchange  of 
state  bonds  with  certain  railroad  companies, 
the  state  was  to  occupy  two  relations  to 
those  who  bought  its  bonds  from  the  com- 
pany.   The  first  was  that  of  a  debtor  to  the 


5« 


STATE  AID,  le. 


1C7 


holder,  and  the  second  was  that  of  a  trustee 
holding  the  bond  of  the  company  and  the 
lien  created  by  the  act  to  secure  payment  to 
the  party  who  advanced  money  to  the  com- 
pany. The  legislature  had  no  authority  to 
create  the  first  relation.  It  did  have  power 
to  enact  the  second.  Holland  v.  State,  15 
Fla.  455.— Followed  in  State  v.  Jackson- 
ville. P.  k  M.  R.  Co.,  16  Fla.  ydi.—Stat*  v. 
JackionvUU,  P.  &*  M.  R.  Co.,  16  Fla.  708.— 
AiM'LiED  IN  North  Carolina  R.  Co.  v.  Drew, 
3  Woods  (U.  S.)  691. 

The  state  is  prohibited  by  the  consti- 
tution fri>m  becoming  "a  joint  owner  or 
stuckliolder  in  any  company,  association, 
or  corporation."  The  state  may  ^rant 
such  franchises  to  others.  She  cannot 
herself  purchase,  own,  or  operate  a  railway. 
HollitnJ  V.  State,  15  Fla.  455. 

Under  the  legislation  of  the  state,  the 
Florida  Central  R.  Co.  had  the  power  to 
execute  a  bond  which  was  to  be  a  mortgage, 
by  virtue  of  the  statute,  and  without  the 
execution  of  an  additional  mortgage  to  se- 
cure it.  To  such  bond,  when  executed,  at- 
tachcd  the  lien,  power,  and  duty  of  the  state 
as  trustee  under  the  statute.  Slate  v.  Flor- 
ida C,  K.  Co.,  15  Fla.  690.— Applied  in 
North  Carolina  R.  Co.  v.  Drew,  3  Woods 
(U.  S.)  691.  Followed  in  State  v.  Jack- 
sonville, P.  &  M.  R.  Co.,  16  Fla.  708. 

A  corporation  having  power  to  issue  its 
bonds  to  another  corporation  for  the  pur- 
pose of  enabling  it  to  exchange  them  for 
bonds  of  the  state,  may,  by  subsequent  act 
of  its  stockholders,  ratify  and  affirm  a  former 
irregular  issut  and  exchange  of  its  bonds, 
done  by  officers  or  stockholders  of  the  com- 
pany. State  V.  Florida  C.  /?.  Co.,  1$  F/a. 
690. 

Bonds  issued  by  railroad  companies  under 
the  act  of  Jan.  10,  1855,  were,  under  the 
statute,  a  first  lien  or  mortgage  on  the 
roads,  equipments,  and  franchises  of  the 
companies  issuing  them.  A  sale  by  the 
trustees  named  in  the  act  having  been  had 
and  a  balance  of  purchase  money  being  due, 
an  equitable  lien  for  such  balance  resulted 
primarily  to  the  trustees  as  the  vendors  in 
the  sale.  A  balance  of  purchase  money 
being  due  upon  the  sale  of  each  road,  the 
right  of  the  vendors  is  to  a  sale  of  each  road 
separately.  A  sale  of  both  estates  for  the 
payment  of  the  aggregate  amount  of  the 
liens  cannot  be  had.  State  v.  Jacksom>iUe, 
P.  5-  M.  R.  Co.,  16  Fla.  708. 

And  upon  a  sale  made  under  the  above 


statute  the  lien  of  the  tnistees  of  the  Inter- 
nal Improvement  Fund  is  prior  to  the  lien 
of  the  state.  State  v.  Jacksonville,  P.  A*  M, 
R.  Co.,  16  Fla.  708. 

(2)  Federal  decisions. — The  state  of  Florida 
held  $4,000,000  bonds  of  a  railroad  which 
were  made  a  statutory  lien  on  the  road. 
The  "  Internal  Improvement  Fund  of  the 
state "  which  held  in  trust  a  large  amount 
of  land  to  aid  railroads  and  other  improve- 
ments, had  guaranteed  a  large  issue  of  the 
company's  bonds.  Held,  that  the  state  had 
such  interest  as  to  allow  it  to  file  a  bill  in 
the  United  States  supreme  court  against 
citizens  of  another  state  to  enforce  its  lien. 
Florida  v.  Anderson,  91  U,  S.  667,— QU0TEI> 
IN  Union  Trust  Co.  V.  Southern  Inland  N.  ft 
I.  Co.,  130  U.  S.  565. 

Where  a  state  files  an  original  bill  in  the 
United  States  supreme  court  to  determine 
its  rights  touching  a  railroad  whose  bonds 
it  has  indorsed,  and  a  receiver  is  appointed, 
when  the  court  has  adjudicated  the  rights 
of  the  state,  and  determined  to  turn  the  road 
over  to  the  state,  it  will  also  turn  over  any 
funds  in  the  receiver's  hands.  Florida  v. 
Anderson,  91  I/.  S.  667. 

A  railroad  in  Florida  issued  bonds  the 
interest  of  which  was  guaranteed  by  the 
state  through  its  "  Internal  Improvement 
Fund,"  and  the  bonds  were  made  by  stat- 
ute a  first  lien  on  the  road.  The  property 
was  afterwards  sold  under  this  lien,  but  the 
purchasers  failed  to  pay  all  the  purchase 
money.  Held,  that  a  vendor's  lien  attached 
for  the  balance  of  the  purchase  money,  in 
which  the  lien  of  bonds  remaining  unpaid 
was  merged;  that  the  trustees  of  the  im- 
provement fund  could  enforce  said  vendor's 
lien,  together  with  that  of  the  state,  and  ap- 
ply the  money  to  the  discharge  of  such 
bonds  when  due,  but  an  injunction  would 
lie  to  restrain  the  bondholders  from  selling, 
taking  possession  of,  or  interfering  with  the 
property.  Florida  v.  Anderson,  91  U,  5. 667. 

A  Florida  railroad  was  sold  and  the  pro- 
ceeds applied  to  payment  of  the  bonds  of 
the  road.  Held,  that  the  purchaser  there- 
after was  only  required  to  pay  to  the  re- 
ceiver of  the  "  Internal  Improvement  Fund  " 
of  the  state  one  half  of  one  per  cent,  of  the 
amount  of  such  bonds  as  were  still  out- 
standing, and  not  the  whole  amount  issued, 
under  the  Florida  Act  of  Jan.  6, 1855,  pro- 
viding a  system  of  internal  improvements 
for  the  state.  Daggett  v.  Florida  R.  Co..  99 
U.  S.  1%. 


168 


STATE    AID,  17. 


w**i      •] 


PI'': 


A  state,  by  the  terms  of  a  Mntute,  li.iving 
a  lien  on  the  property  of  a  raihoacl  as  trus- 
tee for  the  holders  of  the  bonds,  it  does  not 
follow,  because  the  provisions  of  the  statute 
in  respect  to  the  execution  and  exchange 
of  the  state  bonds  is  unconstitutional,  that 
the  statutory  lien  is  void  also.  The  uncon- 
stitutional part  of  the  statute  may  be  strick- 
en out,  and  the  statutory  mortgage  left  in 
full  force.  Florida  C.  A'.  Co.  v.  Sc/iu//e.  3 
j4m.  &'Ei^.  /?.  (as.  I,  103  6/.  5.  118;  af- 
firmitig  3  Woods  (U.  S.)  69J. 

The  trustees  of  the  Internal  Improvement 
Fund  of  the  state  of  Florida  having  sold 
certain  railroads  for  the  purpose  of  taking 
up  a  state  indebtedness  with  the  purchase 
money,  and  such  purchase  money  not  being 
thereafter  paid,  any  of  the  state  bonds 
sought  to  be  canceled  which  rrmain  in  the 
hands  of  the  purchasers  arc  under  the  con- 
trol of  the  trustees  nether  than  the  hold- 
ers. Littltfitld  V.  Internal  Imp.  Fund,  24 
Am.  &*  Eng,  R.  Cas.  208,  117  £/.  5.  419,  6 
Sup.  Ct.  Hep.  793. 

State  bonds  issued  in  aid  of  a  railroad 
that  had  been  running  ten  years,  but  no  in- 
terest ever  paid,  carry  presumptive  evidence 
of  their  dishonor,  of  which  a  purchaser  at 
auction  is  charged  with  notice.  Trask  v. 
Jacksonville,  P.  &•  M.  li.  Co.,  124  U.  S.  515, 
8  Sup.  Ct.  Rep.  574.— Quoted  in  Smith  v. 
Florida  C.  k  W.  R.  Co..  43  Fed.  Ucp.  731. 

A  state  was  authorized  to  exchange  its 
bonds  for  railroad  bonds,  and  the  statute 
created  a  mortgage  in  favor  of  the  state  to 
secure  the  bonds.  After  such  bonds  had 
been  issued  and  exchanged  the  supreme 
court  of  the  state  decided  that  the  state 
bonds  were  issued  in  violation  of  the  con- 
stitution. Held,  that  the  holders  of  state 
bonds  had  a  riglit  to  enforce  the  statutory 
mortgage  for  their  own  benefit.  North 
Carolina  R.  Co.  v.  Drew,  3  Woods  (U.  S.) 
691  ;  affirmed  in  3  .-/;/;.  &*  Eni[.  R.  Cas.  i, 
103  U.  S.  118.— Applying  State  v.  Florida 
C.  R.  Co.,  15  Fla.  690;  State  v.  Jackson- 
ville. P.  &  M.  R.  Co.,  16  Fla.  708. 

And  the  fact  tiiat  the  proceeds  of  the 
state  bonds  were  used  for  the  private  ad- 
vantage of  the  stockholders  of  the  railroad 
company,  in  violation  of  the  statute,  is  no 
defense,  when  the  railroad  bonds  are  sued 
on  by  bona  fide  holders.  North  Carolina 
R.  Co.  V.  Drew,  3  Woods  ( U.  S.)  691 ;  affirmed 
in  3  Am.  &•  Eng.  R.  Cas.  i,  103  I/.  S.  118. 

17.  Georgia.— (I)  State  decisions.— Tht 
act  of  Sept.  31,  1868,  providing  for  loaning 


the  credit  of  the  state  to  a  railroad  company, 
prohibited  the  sale  of  the  state  bonds  be- 
low a  certain  price,  and  provided  that  upon 
an  attempt  to  do  so,  any  citizen  might  ap- 
peal to  the  courts,  in  his  own  name,  to  re- 
strain such  illegal  use  of  the  bonds.  Held, 
that  the  action  should  be  limited  to  a  simple 
discovery  of  an  attempt  to  make  a  prohib- 
ited sale,  and  should  not  be  extended  to  an 
action  to  investigate  the  dealings  of  the 
railroad  company  generally,  or  an  attempt 
to  annul  construction  contracts,  /ones  v. 
Macon  S^  H.  R.  Co. ,  39  Ca.  1 38. 

Where  an  iiulnrsoment  by  the  state  of  the 
bonds  of  a  lailruad  has  been  repudiated  by 
the  stale,  then*  is  nevertheless  an  equity 
that  bondholders  who  have  relied  upon  such 
apparent  indorsement  should  be  subrogated 
to  the  security  given  by  the  company  to 
the  state  to  secure  such  indorsement.  But 
bondholders,  whose  bonds  do  not  bear  such 
indorsement  will  no^  be  so  subrogated. 
Clews  V.  Brunswick  cr*  A.  R.  Co.,  54  Ga, 

3'S. 

In  a  bill  brought  by  the  state  to  preser\'e 
the  property  of  a  railroad  until  it  can  be 
ascertained  whether  the  state  is  liable  upon 
her  indorsement  of  bonds  of  the  road, 
though  a  receiver  has  been  appointed,  it  is 
not  error  in  the  chancellor  to  dismiss  the 
state,  on  its  own  motion,  as  party  plaintiff, 
after  the  legislature  has  declared  such  in- 
dorsement void.  Brunswick  &*  A.  R.  Co, 
V.  State,  48  Ga.  41  J. 

The  proceeds  of  a  subscription  to  stock 
of  a  railroad  which  has  been  seized  by  the 
governor,  belong  to  the  state,  after  the 
deduction  of  attorney's  fees.  Mullins  v. 
North  &*  S.  R.  Co.,  54  Ga.  580. 

The  act  of  1874,  repealing  all  charter  pro- 
visions for  state  aid  to  railroad  companies, 
and  providing  that,  should  any  such  com- 
pany claiming  such  aid  as  a  vested  right 
apply  to  the  governor  therefor,  any  citizen 
may  interpose  by  bill  to  restrain  such  ap- 
plication, is  unconstitutional,  as  impairing 
the  right  secured  by  the  constitution  of  ap- 
pealing to  the  courts.  The  second  section 
of  tiie  act  is  also  invalid  for  containing  mat- 
ter not  expressed  in  its  title.  Northeastern 
R.  Co.  V.  Morris,  59  Ga.  364. 

(2)  Federal  decisions. — A  state  indorsed 
at  different  times  two  series  of  railroad 
bonds,  and  took  as  security  a  first  lien  on 
the  road.  Afterwards  the  lien  was  fore- 
closed, and  the  state  bought  the  road,  and 
took  up  all  of  the  first  series  of  bonds.     A 


STATE   AID,  18,  10. 


IW 


holder  of  the  second  leriei  filed  a  bill  to  set 
aside  the  sale,  making  the  governnr.  state 
treasurer,  and  the  railroad  company  defend- 
ants. Held,  that  the  suit  to  all  intents  and 
purposes  was  a|suit  against  the  state,  and  the 
making  the  officers  defentiants  was  as  ob- 
jectionable as  if  the  state  had  been  sued 
directly,  which  cannot  be  done,  and  the 
court  had  no  jurisdiction.  Cunningham  v. 
Macon  St*  B,  R.  Co.,  14  ^'"-  ^  F.ng.  R.  Cat 
567,  109  U.  S.  446,  3  Sup.  Ct,  Rep.  292.— 
DisTiNOUiSHED  IN  Hagood  V.  Southern, 
117  U.  S.  52.  Followed  in  Christian  v. 
Atlantic  A  N.  C.  R.  Co.,  133  U.  S.  233,  10 
Sup.  Ct.  Rep.  260;  North  Carolina  v.  Tem- 
ple, 134  U.  S.  22. 

A  state  indorsed  two  issues  of  railroad 
bonds  upon  the  condition  that  the  state 
should  have  title  to  all  property  purchased 
with  the  proceeds  of  the  bonds,  and  a  first 
lien  on  all  other  pro[)crty  of  the  company, 
and  upon  a  failure  to  pay  interest  or  princi- 
pal the  governor  might  take  possession  and 
sell  the  property;  but  the  legislature  de- 
clared that  the  second  indorsement  was  not 
valid.  The  governor  took  possession  of  the 
property,  when  a  holder  of  bonds  of  the 
second  issue  brought  suit  to  restrain  the 
governor  from  selling.  Held,  that  the  in- 
junction should  be  refused,  on  the  ground 
tlint  the  relief  asked  for  could  not  be 
granted  without  adjudicating  the  rights  of 
the  state,  and  it  was  not  a  party.  Branch  v. 
Macon  &•  B.  R.  Co..  2  Woods  (U.  S.)  385.— 
Approving  Printup  v.  Cheroke-  R.  Co.,  45 
Ga.  365.— Reviewed  in  Oilman  v.  New  Or- 
leans &  S.  R.  Co.,  72  Ala.  566. 

18.  Kentucky.— The  state  waived  its 
lien  on  the  Louisville  &  Frankfurt  railroad, 
if  any  was  retained  in  the  act  of  March  i, 
1847,  transferring  its  interest  in  the  road  to 
the  L.  It  F.  R.  Co.,  as  to  subsequent  mort- 
gagees, by  authorizing  the  company  to  issue 
bonds  and  secure  them  by  mortgages  on  the 
ro.id,  by  enabling  acts  passed  by  the  legis- 
lature containing  no  intimation  that  such 
liens  were  to  be  subject  to  the  prior  lien  of 
tin;  state.  Newport  &•  C.  Bridge  Co.  v. 
Douglass,  12  Bush  {Ky.)  673,  18  Am.  Ry. 
Rep.  221. 

IV.    I0UI8IAHA. 

10.  CoiiHtitiitlonal  (luestlons.— The 

Louisiana  Act  of  April  20,  1871,  authorizing 
aa  issue  of  state  bonds  in  aid  of  a  railroad 
is  in  conflict  with  the  amended  constitution 
of  1870,  limiting  the  state  debt  to  twenty- 


five  millions  of  dollars  prior  to  1890.  Dur- 
ket  V.  Board  0/  Liquidation,  3  Am.  &*  Et^. 
R.  Cas.  135,  103  U.  S.  646.  —  Following 
Williams  v.  Louisiana,  103  U.  S.  637. 

The  state  could  not  revive  by  ratification 
or  otherwise  the  obligation  that  had  lapsed 
by  the  failure  of  the  New  Orleans,  Mobile  ft 
Chattanooga  railroad  company  to  comply 
with  the  stipulation  of  the  act  of  1869,  be> 
cause  at  the  date  of  the  alleged  acquies- 
cence the  constitutional  amendment  was  in 
force.  Hence  said  bonds  are  not  valid  ob- 
ligations of  the  state,  and  cannot  be  funded. 
State  ex  re/,  v.  Funding  Board,  28  La.  Ann. 
249. 

The  above  act  created  a  conditional  obli- 
gation on  the  part  of  the  state  to  guarantee 
the  second  mortgage  bunds  of  the  company ; 
but  before  the  condition  happened  the  con- 
stitutional amendment  of  Nov.,  1870,  had 
been  adopted,  prohii)iting  an  increase  of  the 
state  indebtedness  bevond  $25,000,000,  and, 
as  this  limitation  had  been  reached,  the 
guaranty  was  prohibited.  State  ex  rel.  v. 
Funding  Board,  28  La.  Ann.  249. 

Notwithstanding  the  above  ((institution- 
al limitation,  the  general  assembly  passed, 
April  20,  1871,  an  act  which  provides  that  the 
governor  is  authorized  to  subscribe  for  25,000 
shares  of  $1000  each  of  the  capital  stock  of 
said  corporation  on  behalf  of  the  state,  and  to 
receive  tliecertificateof  stock  therefor  as  pay- 
ment shall  be  made,  and  further  declares  that 
the  subscription  and  the  issucof  thebonds  are 
intended  to  extinguish  the  obligation  of  the 
state  to  indorse  or  guarantee  the  second 
mortgage  bonds  of  said  corporation  under 
the  act  of  Feb.  21,  1870,  and  as  a  discharge 
of  either  party  from  all  obligations  for  the 
issue,  indorsement,  guarantee,  and  security 
of  said  mortgage  notes,  as  provided  for  in 
the  fourth  section  of  said  act ;  it  is  provided 
that  the  said  corporation  shall  comply  with 
certain  conditions,  formalities,  und  stipula- 
tions, and  shall  obligate  itself  to  commence 
that  part  of  its  railroad  from  Vermilionville 
to  Shreveport  within  six  months,  and  to 
complete  the  same  within  the  time  limhed. 
State  v.  Clinton,  28  La.  Ann.  393. 

The  obligation  of  the  state  to  guarantee 
the  second  mortgage  bonds  of  the  company 
had  lapsed,  because  it  failed  to  complete 
the  first  section  of  forty  miles  of  the  main 
line  by  Jan.  18,  1871.  and  failed  to  achieve 
other  works  and  fulfil  other  obligations  ac- 
cording to  the  act  of  1870.  Under  these 
circumstances  the  act  uf  April  20,  1871,  and 


170 


STATE   AID,  20-22. 


Ml 


m 


i<n 


the  Issue  thereunder  by  the  jjovornor  of 
bonds  to  the  ainount  of  82.500,000  was  the 
creation  of  a  debt  in  contravention  of  the 
constitutional  limitation  of  1870.  Slate  v. 
Clinton,  28  /.,/.  .liin.  393. 

As  these  bondj  bear  liiite  subsequent  to 
the  adoption  of  the  constitutional  amend- 
ment, all  persons  acquiring  them  arc  charged 
with  notice  jf  the  existence  and  effect  of 
that  amendment.  They  were  charged  \'ith 
notice  iiiat  in  1871  it  was  not  in  the  power 
of  the  general  assembly  and  tiie  governor 
to  bind  the  state  by  the  issue  of  the  bonds 
as  a  substitute  for  the  obligation  to  indorse 
the  second  mortgage  bonds  of  the  above 
company,  because  said  obligation  was  con- 
ditional, and  it  could  only  become  binding 
on  the  state  on  the  happening  of  tiic  condi- 
tions precedent,  anfl  they  might  never  hap- 
pen.    Stall'  V.  Clinloii,  2>S  l.a.  Ann.  393. 

The  issue  of  these  bonds  as  a  substitute 
for  a  debt  that  did  not  exist,  and  tiiat  niiglit 
never  exist,  was  to  all  intents  and  purposes 
the  creation  of  a  debt  in  187 1,  in  contra- 
vention of  the  constitutional  amendment. 
Stale  v.  Clinton,  28  La.  Ann.  393. 

The  constitution;  1  amendment  of  1874, 
limiting  the  debt  of  the  st.ite  to  $15,000,000, 
only  restrains  the  legislature  from  increasing 
the  actual  or  present  debt  of  the  state  be- 
yond that  sum.  It  does  not  inhibit  any  in- 
crease of  the  contingent  liability  of  the 
state.  Until  the  actual  debt  of  the  state 
has  readied  the  limit  of  ij»  15,000,000,  it  is 
competent  for  the  legislature  to  provide  for 
the  issuing  of  bonds  as  a  loan  to  such  en- 
terprises as  fall  within  its  constitutional 
power,  provided  that  in  the  act  creating  the 
debt  ailequatc  ways  and  means  are  provided 
for  the  payment  of  the  current  interest,  and 
of  the  princip.d  when  it  siiall  become  due. 
(E;igan  and  De  Blanc,  Jj.,  dissenting.)  State 
ex  rel.  v.  NicholU,  30  La.  Ann.  gbo. 

The  act  of  March  11, 1S78,  autliorizing  tlie 
issuance  of  state  bonds  in  aid  of  the  New 
Orleans  Pacific  railway  company,  does  not 
contravene  the  constitutional  prohibition  of 
aid  to  a  |)rivate  purpose.  State  e.v  rel.  v. 
Nicnolh,  30  La.  Ann.  980. 

2*>.  IiitcrprritiiiKtlio  stiitiites.— The 
funding  act  of  Jiin.  24.  1874,  embraced  only 
the  aciual  debt  of  the  st.itc.  It  excluded  the 
coniiniifent  liability  of  the  state  embodied 
in  tiie  bonds  loaned  to  the  Citizen  '  Bank, 
and  the  Consolidated  Planters'  As?  iciation. 
(Eat;an  and  De  Blanc,  J|.,  dissenting.) 
Stale  ex  rel.  v.  Nickolli,  30  La.  Ann.  980. 


Where  a  law  authorizes  bonds  of  the  state 
to  be  issued  and  loaned  to  a  corporation,  on 
condition  that  it  shall  pledge  certain  of  its 
own  mortgage  bonds,  payable  forty  years 
after  their  execution,  to  secure  the  state,  the 
tender  of  bonds  by  the  corporation,  the  pay- 
ment of  all  of  which  is  made  exigible  when- 
ever there  shall  be  a  six-months'  default  in 
the  payment  of  the  interest  on  any  of  said 
bonds,  is  not  such  a  compliance  with  the 
law  as  will  authorize  the  corporation  to  de- 
mand the  issue  of  the  state  bonds.  The 
fact  that  the  bonds  of  the  corporation,  ten- 
dered as  a  pledge,  are  dated  before  the  pas- 
sage of  the  law  authorizing  the  loan,  and 
that  they  are  made  payable,  at  the  holder's 
option,  at  another  place  in  addition  to  that 
prescribed  in  the  act,  is  immaterial.  State 
ex  rel.  v.  Nicholh,  30  La.  Ann.  12 17. 

Where  a  statute,  authorizing  a  loan  of  the 
state's  credit  on  the  security  of  a  certain 
mortgage,  is  silent  as  to  the  question  of  the 
appraisement  of  the  property  covered  by 
the  mortgage,  in  case  of  its  forced  sale,  it 
will  be  assumed  that  the  legislature  de- 
signed that  such  a  forced  sale  should  only 
take  place  after  the  usual  appraisement  pro- 
vided for  by  law.  State  ex  rel.  v.  Nicholh, 
30  La.  Ann.  1217. 

21.  Right  of  Htate  to  withhold  aid 
once  granted. — The  act  of  Feb.  21,  1870, 
extending  the  aid  of  the  state  to  the  New 
Orleans  &  Texas  railroad  company,  is  a  con- 
tract between  the  state  and  the  company. 
In  granting  state  aid  to  this  company  to 
enable  it  to  construct  the  road  through  her 
limits,  the  legislature  was  evidently  influ- 
enced from  motives  of  public  policy,  and 
the  aid  given  cannot,  therefore,  be  regarded 
as  a  simple  donation  to  a  private  company. 
Slate  ex  rel.  v.  Graham,  23  La.  Ann.  622, 

The  above  grant  being  a  contract  with 
the  company  which  was  made  before  the 
amendment  to  the  constitution  was  adopted 
prohibiting  the  increase  of  the  state  debt 
al)ove  $25,000,000  and  being  made  in  the 
public  interest,  the  aid  cannot  now  be  with- 
held by  the  state,  notwithstanding  its  in- 
debtedness has  reached  the  limit  imposed 
by  the  constitution.  State  ex  rel.  v.  Graham, 
23  La.  Ann.  dii. 

22.  AVhcn  the  Htnte  Ih  estopiied.— 
The  state  having  by  statute  authorized  a 
railroad  corpr'ation.  as  donee  and  grantee 
of  lands  from  the  (.^eneml  government,  and 
franciiises  which  she  bestowed  upon  it,  to 
execute  a   mortgage   thereon    is  estopped 


STATE   AID,  33. 


in 


from  impeaching  the  same.  Rights  ac- 
quired through  tlie  enforcement,  judicially, 
of  such  mortgage  cannot  be  destroyed  by 
subsequent  legislative  action  by  the  state. 
Mw:er  v.  Kemp,  46  Am.  &*  Eng.  R.  Cos. 
480,  42  La.  Ann.  1007,  8  So.  Rep.  830. 

The  corporation  acquires  an  apparent  le- 
gal title  to  the  lands  and  franchises  which 
are  adjudicated  to  it  under  such  judicial 
foreclosure  of  a  mcrtgag.°,  and  the  state,  as 
trustee,  is  estopped  from  uisputing  its  valid- 
ity, or  setting  up  adverse  right  or  title  in 
herself.  Only  the  United  States,  as  grantor, 
can  in  such  case  take  advantage  of  the 
grantee's  non-performance  of  a  condition 
subsequent  which  is  attached  to  the  grant, 
and  this  must  be  done  by  act  of  congress  or 
judicial  proceedings  and  decree.  Mower  v. 
Kemp,  46  Am.  &»  Eng.  R.  Cat.  480,  43  La. 
Ann.  1007,  8  So.  Rep.  830. 

y.  MABTLAND ;  XINNESOTA ;  KI88IUIPPI. 

1'A,  Marylniirt.— A  company  executed 
a  mortgage  of  its  road  to  the  state,  under 
tlie  act  of  1854,  ch.  260,  which  contained  a 
covenant  to  pay  the  state  an  annuity  of 
$90,000,  payable  in  quarterly  instalments, 
commencing  from  the  date  of  the  mortgage, 
in  the  manner  required  by  the  act.  The 
mortgage  also  contained  a  proviso,  that  un- 
til default  is  made  in  the  payment  of  said 
annuity  or  some  part  thereof,  "  and  until 
three  months  subsequent  to  a  default  of  the 
com|>any  to  pay  the  whole  amount  of  said 
annuity  which  may  fall  due  in  any  one 
year,"  the  company  shall  quietly  enjoy  the 
road,  "  without  any  lawful  let,  suit.  Interrup- 
tion, disturbance,  claim,  or  demand  whatso- 
ever," by  the  state  or  any  one  lawfully  claim- 
ing uniier  it.  Held,  that  the  fadure  to  pay 
any  quarterly  instalment  is  a  breach  of  the 
covenant,  which  gives  the  state  an  imme- 
diate right  of  action,  unless  that  right  is 
limited  or  controlled  by  the  subsequent  pro- 
viso, and  that  by  the  mortgage  itself,  con- 
struing its  terms  according  to  their  fair  and 
reasonable  import,  the  default  in  paying  the 
whole  amount  is  equivalent  to  saying,  if  the 
wliolc  amount  bo  not  paid  in  any  one  year, 
and  does  not  import  that  a  whole  year's  an- 
nuity must  bein  arrear  for  three  niontli-  be- 
fore the  state  can  sue.  Northern  C.  R.  Co. 
v.  S/itte,  17  M(f.  8. 

Afti^r  a  state  had  subscribed  to  the  stock 
of  a  railroad,  under  an  agreement  that  the 
company  should  pay  six  per  cent,  per  an 


num  on  the  amount  of  the  subscription,  the 
state  amended  the  charter  so  as  to  allow  an 
extension  of  the  road,  and  an  issue  of  bonds 
secured  by  a  mortgage  on  the  company's 
property.  NelJ,  that,  by  virtue  of  the 
amendment,  the  state  subordinated  its  rights 
to  the  rights  acquired  under  the  mortgage. 
Brown  v.  Siate,  62  Md.  439. 

The  state,  in  1836,  passed  a  law  directing 
a  subscription  of  (3,000,000  to  the  capital 
stock  of  defendant  company,  with  the  pro- 
viso, "  that  if  the  said  company  shall  not 
locate  the  said  road  in  the  manner  provided 
for  in  this  act,  then,  and  in  that  case,  they 
shall  forfeit  $1,000,000  to  the  state  of  Mary- 
land for  the  use  of  Washington  county." 
in  March,  1841,  the  state  pi>ssed  another 
act  repealing  so  much  oi  the  prior  act  as 
made  it  the  duty  of  the  company  to  con- 
struct the  road  by  the  route  therein  pre- 
scribed, remitting  and  releasing  the  penally, 
and  directing  the  discontinuance  of  any  suit 
brought  to  recover  the  same.  //eM,  that 
the  proviso  was  a  measure  of  a  state  policy, 
which  it  had  a  right  to  change,  if  the  policy 
was  afterwards  discovered  to  be  erroneous, 
and  neither  the  commissioners  nor  the 
county,  nor  any  of  its  citizens  acquired  any 
separate  or  private  interest  under  it,  which 
could  be  maintained  in  a  court  of  justice. 
It  ''c  ■  a  penalty,  inflicted  upon  the  com- 
p-i.-,;  KS  a  punishment  for  disobeying  the 
law  ;  and  the  assent  of  the  company  to  it,  as 
a  supplemental  charter  is  not  suthcient  to 
deprive  it  of  the  character  of  a  penalty. 
Afaryland  v.  Baltimore &*€.  R.  Co.,  3  Haw. 
(U.S.)  534.— Distinguished  in  Nevitt  v. 
Rank  of  Port  Gibson,  14  Miss.  513. 

Under  the  Md.  Acts  of  June  4,  1836. 
and  April  5, 1839,  that  state  subscribed  for  a 
large  amount  of  stock  in  a  railroad,  and  is- 
sued its  bonds  in  payment,  payable  in  Lon- 
don. As  a  condition  precedent  the  com- 
pany was  to  guarantee  to  the  state  payment 
of  the  semi-annual  interest  "out  of  the 
profits  of  the  road."  After  the  "  Legal  Ten- 
der Act"  the  company  refused  to  pay  interest 
in  London,  but  paid  to  the  state  treasurer 
six  per  cent,  in  currency.  The  state  con- 
tended that  as  the  bonds  were  payable  in 
London  it  raised  an  implied  contract  to  pay 
in  gold.  Held,  that  a  contract  to  pay  in  gold 
must  be  found  in  the  language  of  the  con- 
tract, and  not  being  so  provided,  the  com- 
pany rould  pay  in  currency.  Afaryland  v. 
liallimoie  5-  O.  R.  Co.,  22  Wall.  {U.S.) 
105 ;  iijlimiing  36  Md.  519. 


ITS 


STATE    AID,  24,  2S. 


ii 


24.  Minnesota.— Where  land  is  con- 
veyed to  a  slate  by  a  corporation  as  indem- 
nity against  losses  on  her  bonds  loaned  to 
it.  the  bondholders  have  no  equity  for  the 
application  of  the  land  to  the  payment  of 
the  bonds  which  can  be  enforced  against 
the  slate,  and  her  grantees  take  the  prop- 
erty discharged  of  any  claim  of  the  bond- 
holders. Chamberlain  v.  .SV.  Paul  &-  S.  C. 
/'.  C'.'.,92  U.  S.  299.— Revikwku  IN  Tomp- 
kins r.  Little  Rock  &  Ft.  S.  R.  Co..  21  Fed. 
Rep.  370,  120  U.  S.  160.7  Sup.  Ct.  Rep. 
469.  5  McCrary  597.  18  Fed.  Rep.  344 ;  Ste- 
vens V.  Louisville  &  N.  R.  Co.,  2  Flipp.  (U. 
S.)7i5,  3  Fed.  Rep.  673. 

Under  Minn.  Const,  art,  9.  §  ro,  as 
amended  April  15, 1858,  the  deed  of  trust,  to 
secure  the  bonds  to  be  deposited  with  the 
state  treasurer,  by  the  several  companies,  as 
security  for  the  state  bonds  to  be  issued  to 
such  companies,  need  not  give  the  state  a 
priority  of  lien.  Minnesota  &•  P.  Ji.  Co.  v, 
Sibley.  2  Minn.  13  (Gil.  I). 

The  niorifjage  required  by  the  above 
amendment  to  the  constitution,  to  be  given 
by  any  company  accepting  the  benefit  of  the 
amendment  was  to  cover  its  corporate  fran- 
chise, or  the  right  to  be  a  corporation. 
First  Div.  St.  P.  <S-  /'.  A'.  Co.  v.  Parcher, 
14  Minn.  297  (67/.  224). 

By  section  20  of  its  charter,  as  well  as  by 
the  above  amendment,  the  Minnesota  &  Pa- 
cific railroad  company  had  power  to  mort- 
gage its  franchise.  First  Div.  St.  P.  iS>»  /'. 
F.  Co.  V.  Parcher,  14  Minn.  297  ((7//  224). 

ny  the  foreclosure  of  the  mortgage  given 
by  the  compnny  under  the  above  amend- 
ment, the  fraiK  hise  passed  to  the  state,  as 
pun  liuser.  The  forfeiture  to  the  stale  ac- 
cruing under  the  act  of  March  8,  1861,  enti- 
tled "All  art  to  facilitate  the  construction  of 
the  Minnesota  &  Pacillc  Railroad,"  would 
have  hud  the  same  etTect.  First  lUv.  St. 
P.  &•  P.  F.  Co.  V.  J  liter,  14  Minn.  297 
((/7/,  224). 

25.  NiHHiHfiipiii.—  The  act  of  March 
i^,  1852,  does  not  makr  an  absolute  giant 
of  the  three  percent,  fund  then  in  the  state 
treasury  to  the  several  counties  of  the 
state;  hut  the  power  is  delegated  to  the 
counties  to  expend  the  fund  in  execution  of 
the  internal  improvement  trust  imposed  by 
the  act  ofconjjress  upon  the  state,  and  is, 
therefore,  subject  to  be  resumed  at  the 
plea«uie  of  the  state  at  any  time  before  the 
money  IS  actually  appropriated  by  ihe  coun- 
ties. McAfee  v.  Soutlurn  R.  Co.,  36  Miss.  Ux). 


By  the  act  of  Nov.  18,  1857.  all  of  the 
above  fund  then  in  the  treasury  was  granted 
to  five  railroad  companies,  without  any  di- 
rect reference  to  the  act  of  1852.  A  large 
part  of  the  sum  which  was  in  the  treasury 
at  the  date  of  the  first  act  was  never  distrib- 
uted to  the  counties,  but  remained  in  the 
treasury  when  the  act  of  1857  was  passed, 
together  with  a  large  sum  which  had  been 
received  as  a  part  of  the  same  fund  since 
1852.  Held,  that  as  there  was  no  express 
repeal  of  the  act  of  1852,  the  general  words 
of  the  act  of  1857  did  not  divest  the  coun- 
ties of  the  rights  acquired  under  the  act  of 
1852  ;  and,  therefore,  the  act  of  1857  did  not 
embrace  any  of  the  funds  granted  to  the 
counties  by  the  former  act.  McAfee  v. 
Southern  A'.  Co. ,  36  Miss.  669. 

The  above  act  of  1857  provided  that  the 
companies  should  make  application  to  the 
auditor  within  ninety  days  from  its  date  for 
the  fund,  and  if  any  of  said  companies 
should  "fail  or  refuse  for  ninety  days  to 
make  application  for  their  distributive  share, 
then  the  share  or  shares  so  neglected  or  re- 
fused to  be  applied  for  "  should  be  distrib- 
uted by  the  auditor  to  the  other  roads  ap- 
plying within  the  ninety  days  "share  and 
share  alike."  All  the  companies  applied 
and  received  their  share  01  the  sum  shown 
by  the  auditor's  books,  and  recognized  by 
him  as  belonging  to  the  thre<  percf.nt.  fund. 
Defendant  company,  just  be'ore  '.he  expira- 
tion of  the  ninety  days,  applied  for  a  further 
sum,  which,  upon  investigation,  was  found 
to  belong  to  the  fund.  Held,  that  the  fail- 
ure of  the  other  companies  to  apply  within 
the  ninety  days  was  not  a  forfeiture  of  their 
ri^ht.  as  hiu  li  failure  was  withcut  fault  on 
their  part,  and  raused  by  the  mistake  of 
the  auditor.  McAfee  v.  Southern  F.  Co.,  36 
Miss.  669. 

The  application  required  by  the  act  of 
Nov.  18,  1857,  to  he  made  within  ninety  days 
after  its  passage  by  the  several  railroad 
rompanifs  therein  named,  (or  a  loan  of  the 
three  per  cent,  fund,  must  be  made  to  the 
auditor  of  public  accounts,  a  deposit  of  bon  ' 
with  the  treasurer  within  that  time,  and  an 
application  afterwards  to  the  auditor  lor  his 
warrant  will  not  do.  McAfee  v.  Southern 
F.  Co. ,  36  Misf.  669. 

By  the  act  of  April  18,  1873,  cerMin  funds 
were  appropriated  to  aid  the  constriiiiion 
of  defendant's  road,  $8coo  p»  r  milo  to  be 
paid  as  designated  sections  ol  the  road 
should  be  completed,  tu  be  paid   by  the 


STATE  AID,  26. 


173 


treasurer  on  the  order  of  the  governor, 
upon  notes  of  the  company  and  secured  by 
a  first  mortgage  on  the  road.  It  was  pro- 
vided that  if  at  any  time  the  legislature 
should  deem  the  securities  insufficient  the 
company  should  be  compelled  to  give  such 
additional  security  as  might  be  demanded. 
Upon  completion  of  a  section  of  five  miles 
tlie  acting  governor  ordered  payment  of 
$40,000,  but  before  it  was  paid  the  legis- 
lature provided,  April  I,  1876,  that  the  com- 
pany should  give  additional  security  by  de- 
p^ilting  state  bonds  with  the  treasurer. 
Held,  that  the  latter  act  was  binding,  and 
the  company  had  no  right  to  demand  pay- 
ment of  the  $40,000,  unless  the  additional 
security  was  given.  Hemmingway  v.  Vicks- 
burg  &-  N.  R.  Co.,  52  Miss.  16. 

VI.  MISMUBI ;  NEW  TOBX. 

26.  Missouri.— (i)  State  decisions.— 
Pending  a  bill  in  equity  for  rescission  of  the 
sale  of  a  railroad  by  the  governor,  and  also 
for  an  account  and  for  damages,  an  act  was 
passed  by  the  legislature  confirming  the 
sale.  Held,  that  the  act  is  a  complete  bar 
to  that  part  of  the  petition  which  demandec^ 
rescission,  yet  the  court  is  not  thereby  de- 
prived of  all  jurisdiction  of  the  cause,  but 
jurisdiction  will  be  retained  and  justice  ad- 
ministered as  to  tli !  remaining  portion  of 
the  petition.     State  v.  McKay,  43  Mo.  594. 

After  such  sale  by  the  governor,  his 
seizure  of  the  same,  under  and  by  virtue  of 
a  clause  of  forfeiture  contained  in  the  act 
and  the  deed  of  conveyance,  is  not  an  ad- 
mission by  the  state  that  the  sale  and  trans- 
fer were  legal,  nor  does  the  seizure  amount 
to  a  ratification  of  the  sale.  In  making  the 
sale,  the  governor  was  not  acting  in  his 
political  or  executive  capacity,  but  merely 
as  a  special  agent ;  and  the  duty  might  have 
devolved  upon  any  other  person  as  well. 
And  if  he  proceeded  beside  the  law  or  out- 
side the  law,  the  state  would  not  be  bound 
by  his  tortious  acts  or  trespasses.  .Jtate  v. 
McA'ay,  43  Mo.  594. 

Where  such  seizure  is  made  on  account 
of  a  non-compliance  with  the  ler.nis  of  the 
contract,  for  the  purpose  of  foreclosing  the 
state's  lien  or  mortgage,  the  clause  of  for- 
feiture is  not  distinguishable  in  principle 
from  one  of  re-entry  by  a  landlord  for  con- 
dition broken  ;  and  such  seizure,  even  if  in 
all  respec  ..i  legal  and  regular,  does  not  de- 
prive the  state  of  any  previous  existing 
right.     State  v.  McKay,  43  Mo.  59 '/. 


If  the  commissioners  for  the  sale  of  a 
railroad  combine  and  confederate  with  other 
persons  in  the  purchase  of  the  property, 
the  state  will  be  entitled  to  whatever  specu- 
lations they  made  out  of  the  sale;  and 
the  other  persons,  by  entering  into  the 
league  with  the  full  knowledge  of  the  f'^cts, 
will  also  be  amenable.  State  v.  McKay,  43 
Mo.  594. 

The  state  Pai^ific  railroad  bonds  of  Jan- 
uary 15, 1853,  are  payable  twenty  years  from 
date,  and  the  time  of  their  payment  is  not 
postponed  by  the  provision  incorporated  in 
the  bonds  making  them  redeemable,  in  the 
pleasure  of  the  legislature,  at  any  time  after 
the  expiration  of  twenty  years.  Said  bonds 
can  only  be  paid  out  of  a  fund  expressly 
appropriated  for  that  purpose  by  the  legis- 
lature. The  state  interest  fund  created  by 
the  .let  of  1855,  and  tiie  state  sinking  fund 
created  by  the  act  of  1865,  were  appropriated 
for  the  payment  of  these  among  other 
state  bonds.  Payment  is  to  be  made  by 
the  state  commissioners  created  by  said 
acts,  without  any  further  order  than  that 
contained  in  the  acts.  If  there  be  not 
funds  enough  on  hand  to  pay  the  bonds  as 
they  mature,  they  arc  required  to  sell  such 
bonds  as  they  may  have  purchased,  so  as  to 
raise  money  for  that  purpose.  Said  bonds, 
according  to  their  terms,  are  payable  in  gold 
or  silVvT  coin.  And  this  provision  is  not 
overruled  by  the  legal-tender  acts  passed  by 
congress  ..1  1862.  Anr  it  would  be  a  breach 
of  the  contract  entered  into  by  the  state  in 
issuing  these  bonds  to  order  their  payment 
in  le^al  tender  notes.  Answers  to  Questions 
of  Governor,  49  Afo,  216. 

The  state  by  the  course  of  its  legislature 
is  estopped  from  now  disputing  the  author- 
ity of  the  governor  to  contract  for  the  pay- 
ment of  state  bonds  in  gold  and  silver. 
Answers  to  Questions  of  Governor,  49  Mo. 
216. 

The  lien  of  the  state  upon  the  Iron 
Mountain  railroad  lands,  created  by  the  act 
of  1851,  embraced  land  acquired  by  the 
road  after  the  creation  of  the  lien,  and  fore- 
closure and  sale  of  the  road  under  said  act 
will  carry  title  to  such  land.  Whitehead  v. 
Vineyard,  50  Mo.  30,  3  Am    'iy.  Rep.  7. 

It  is  competent  for  the  lej^islature  to 
modify  or  repeal  a  law  appropriating  money 
for  the  payment  of  these  bonds,  and  its 
action  is  not  liable  to  superintendence  or 
control  by  the  judiciary.  The  state  may 
;iay  in  what  manner  its  debts  shall  be  {Miid, 


174 


STATE  AID,  26. 


or  that  they  shall  not  be  paid.  And  its 
action  may  amount  to  a  breach  of  faith  ;  but 
t  in»re  is  no  power  to  correct  it.  State  tx  rel. 
V.  Hays,  50  Mo.  34. 

SembU,  that  an  act  of  the  legislature 
granting  an  extension  of  time  upon  a  loan 
formerly  made  to  a  railroad  company  is  not 
in  conflict  with  the  stale  Const,  art.  11,  § 
14,  which  prohibits  the  giving  or  loaning  of 
the  state's  credit,  in  aid  of  any  person,  as- 
sociation, or  corporation.  Opinion  of  the 
Court  given  to  the  General  Assembly,  55  Mo. 

497- 

The  acts  of  Feb.  22,  1851,  and  Dec.  10, 
1855,  give  the  state  a  lien  on  the  Hannibal 
&  St.  Joseph  railroad,  a:'d  provide  that 
upon  any  default  in  the  payment  of  the 
bonds  of  the  state  issued  to  said  railroad 
company,  or  any  default  in  the  payment  of 
interest,  the  lien  shall  be  enforced  by  a  sale 
of  the  road  to  be  made  by  the  governor. 
The  act  of  Feb.  ao,  1865,  according  to  the 
construction  of  the  relators,  puts  it  out  of 
the  power  of  the  governor  to  sell  upon  any 
default  in  the  payment  of  interest  occurring 
after  the  first  day  of  July,  1881,  when  the 
act  was  accepted  by  them,  of  the  lien  of  the 
state.  Mo.  Const.,  1875,  art.  4,  §  50,  pro- 
vides for  the  enforcement  of  the  lien  held 
by  the  state  on  any  railroad  in  accordance 
with  the  terms  upon  which  it  was  acquired. 
Held,  that,  under  the  Const,  art.  15,  §1, 
repealing  all  laws  inconsistent  with  the  con- 
stitution, and  under  art.  4,  §  50,  the  act  of 
Feb.  20,  1865,  was  repealed,  and  since  it  did 
not  of  itself  create  any  vested  right  and 
was  not  accepted  before  the  constitution 
took  effect,  it  ceased  to  be  operative  as 
soon  as  that  event  occurred.  State  ex  rel, 
v.  Chappell,  7  Am.  &*  Eng.  R.  Cas.  118,  74 
Mo.  335. 

(2)  Federal  decisions.— l\\t  state  of  Mis- 
souri issued  its  bonds  in  aid  of  a  railroad, 
and  created  a  lien  on  the  road  to  secure 
them.  Afterwards,  in  1865,  the  state  consti- 
tution was  amended  with  a  provision  that 
"  the  general  assembly  shall  have  no  power, 
for  any  purpose,  to  release  the  lien  held  by 
the  state  upon  any  railroad."  The  legisla- 
ture subsequently  authorized  a  sale  of  "  all 
such  right,  title,  and  interest "  in  and  to  the 
road  as  were  subject  to  the  lien  of  the  state, 
to  the  railroad  company,  for  $5,000,000,  the 
bonds  at  the  time,  with  past  due  interest, 
amounting  to  nearly  $1 1 ,000,000.  Held,  that 
the  constitution  did  not  prohibit  a  sale  of 
the  utate's  claim,  only  a  release  of  the  lien 


while  the  claim  remained;  therefore,  the 
statute  was  constitutional.  Woodson  v. 
Murdoch,  22  Wall.  {U.  S.)  351 ;  affirming  2 
Dill.  188. 

By  Missouri  Act  of  March  3,  1857,  it  was 
provided  that  the  state  should  issue  its  bonds 
in  aid  of  certain  railroads,  which  should 
"constitute  a  first  lien  and  mortgage  upon 
the  roads  and  property  of  the  several  com- 
panies so  receiving  them."  Held,  that  the 
word  "  property,"  as  used  in  the  statute,  in- 
cluded the  lands  of  a  company,  and  created 
a  lien  thereon  ;  that  a  sale  under  the  mort- 
gage destroyed  title  to  one  who  subse- 
quently purchased  lands  from  the  company. 
Wilson  v.  lioyce,  «,)3  U.  S,  320 ;  affirming  2 
Dill.  539. 

A  state  holding  $3,000,000  in  the  stock  of 
a  railroad,  rassed  a  law  directing  its  transfer 
to  the  company  upon  payment  into  the 
state  treasury  of  "a  sum  of  money  equal  in 
amount  to  all  indebtedness  due  or  owing 
by  said  company  to  the  state,  ♦  *  *  to- 
gether with  all  interest  that  has  and  may 
have  <iccrued  and  rema  ns  unpa.id  by  said 
company."  The  purpose  of  the  law  was 
declared  to  be  to  enable  the  state  to  reduce 
its  debt.  Held,  that  the  law  required  the 
company  to  pay  to  the  state  the  face  of  the 
bonds  with  any  interest  then  due,  and  in 
addition  thereto  a  sum  that  would  enable 
the  state  to  redeem  an  equal  amount  of  its 
other  bonds,  bearing  the  same  rate  of  in- 
terest, i.  e.,  a  sum  sufficient  to  pay  any  pre- 
mium that  might  be  on  the  state's  bonds. 
Rolston  v.  Missouri  Fund  Com'rs,  1 20  U.  S, 
390,  7  Sup,  Ct.  Rep.  599 ;  reversing  in  part 
3  McCrary  332,  10  Fed.  Rep.  254. 

The  Mo.  Acts  of  1865  and  1881,  providing 
for  a  transfer  to  the  company  of  the  state's 
stock  m  the  Hannibal  &  St.  Joseph  rail- 
road, upon  payment  to  the  state  of  the 
principal  and  interest  due  thereon,  are  not 
in  conflict  with  the  provisions  of  the  state 
cor  stitution  of  1875,  providing  that  the  state 
shall  release  or  vary  liens  on  railroads,  or 
release  or  extinguish  debts  due  the  state. 
Rolston  V.  Missouri  Fund  Com'rs,  1 20  U.  S. 
390,  7  Sup.  Ct.  Rep.  599 ;  reversing  in  part 
3  McCrary  332,  10  Fed.  Rep.  254. 

In  1864,  while  the  state  was  in  fuil  pos- 
session of  the  revenue  of  defendant's  road 
upon  certain  express  trusts,  which,  it  was 
provided,  were  to  continue  until  the  state 
bonds  loaned  to  the  company  were  paid  or 
exchanged,  by  an  act  of  January  7,  (865,  the 
county  of  St.  Louis  was  empowered  to  loan 


STATE   AID,  27,  28. 


175 


said  company  its  bonds,  which  was  done 
and  accepted  by  the  company.  The  said 
act  authorized  the  person  who  had  thereto- 
fore been  in  custody  of  the  earnings  of  the 
road  for  the  stale  (called  the  fund  commis- 
sioner), to  pay  into  the  county  treasury, 
out  of  said  earnings,  a  sum  sufficient  to 
meet  the  interest  on  said  bonds  loaned  by 
said  county  as  it  accrued.  Held,  that  the 
<}tate  thereby  waived  its  lien  and  right  to  all 
the  earnings  of  the  company  to  the  extent 
of  the  sum  required  to  pay  the  mterest  on 
said  bonds,  and  that  the  country  was  pro 
tanto  substituted  as  to  that  amount  in  place 
of  the  state,  v  ith  a  lien  or  charge  to  that 
extent  a:<  effectual  as  the  state  before  pos- 
sessed.   Ketchum  v.  Pacific  R.  Co.,  4  DHL 

(U.S)7». 

As  between  the  company  and  the  county, 
the  effect  of  the  acceptance  of  the  act,  and 
the  issue  of  the  bonds  by  the  county  under 
it,  was  to  convert  the  provisions  of  the  sec- 
ond section  into  a  contract,  by  which  the 
company  consented  that  the  fund  commis- 
sioner, or  his  successor,  should,  out  of  the 
earnings  of  the  railroad,  pay  the  sum  neces- 
sary to  meet  the  interest  on  said  bonds, 
until  they  were  paid  by  the  company.  This 
created  a  lien,  statutable  in  its  origin  and 
equitable  in  its  nature,  on  those  earnings  ps 
they  arise,  which  may  be  enforced  by  ihe 
county,  so  long  as  the  bonds  which  it  loaned 
to  the  company  remain  unpaid.  Ketchum 
V.  Pacific  R.  Co.,  4  Dill.  (U.  S.)  78. 

27.  New  York. —  New  York  Act  of 
December  14,  1847,  ch.  471,  to  release  the 
prior  lien  of  the  state  on  the  Hudson  & 
Berkshire  railroad,  does  not  violate  the  state 
Constitution  of  1846,  art.  7,  §  4,  which  for- 
bids the  release  or  compromise  of  the  claims 
of  the  state  against  any  incorporated  com- 
pany, to  pay  the  interest  and  redeem  the 
principal  of  the  stock  of  the  state  thereto- 
fore loaned  or  advanced  to  such  company, 
and  provides  that  such  claims  shall  be  fairly 
enforced.  Darby  v.  Wright,  3  Blatchf.  {U. 
S.)  170. 

Neither  does  the  act  of  1847  release, 
reduce,  or  compromise  the  debt  created 
against  said  company  by  the  act  of  April 
28,  1840,  ch.  178,  to  aid  said  company;  nor 
does  It  release  from  the  mortgage  to  the 
state,  created  by  the  act  of  1840,  any  of  the 
property  covered  by  that  mortgage.  Darby 
V.   Wright,  z  Blatchf. {U.S.)  170. 

The  constitution  only  requires  that  claims 
originating  in  loans  of  state  credit,  made 


before  its  adoption,  and  the  securities  taken 
on  such  loans,  shall  be  held  as  the  property 
of  the  state,  and  be  managed  for  its  direct 
pecuniary  benefit,  and  shall  not  be  released, 
reduced  or  surrendered  for  the  benefit  of 
the  borrowing  corporations,  in  disregard  of 
the  pecuniary  interest  of  the  state,  in  its 
distinct  and  single  character  of  a  creditor 
of  the  corporation.  With  those  restrictions, 
the  exercise  of  the  ordinary  legislative  dis- 
cretion in  the  management  of  the  claims  is 
not  prohibited.  Darby  v.  Wright,  3  Blatchf. 
(U.S.)  170. 

The  validity  of  the  act  of  1847  must  be 
determined  by  its  character  and  purposes 
at  the  time  it  was  passed ;  and  the  rights  of 
those  who  have,  on  the  faith  of  its  validity, 
advanced  money  on  bonds  issued  under  it 
and  made  by  it  a  fust  lien  on  the  road,  can- 
not depend  on  the  yet  unsettled  question, 
whether  the  arrangement  authorized  by  it 
will,  in  the  end,  prove  beneficial  or  injurious 
to  the  state,  as  a  creditor  of  the  corporation. 
Darby  v.  Wright,  3  Blatchf.  (U.  S.)  170. 

The  above  act  of  1847  is  not  in  violation 
of  the  state  Constitution  of  1846,  art.  7,  §  9, 
r.hich  forbids  the  giving  or  loaning  of  the 
credit  of  the  state  in  aid  of  any  corporation. 
Darby  v.  Wright,  3  Blatchf.  (U.  S.)  170. 

The  comptroller  of  the  state  being  about 
to  sell  the  road,  and  appropriate  its  proceeds 
to  the  sole  benefit  of  the  state,  to  the  exclu- 
sion of  the  holders  of  the  bonds  issued  un- 
der the  act  of  1847,  this  court  enjoined  hi,n 
from  so  doing  in  a  suit  brought  by  such 
bondholders.  Darby  v.  Wright,  3  Blatchf. 
{U.S.)  170. 

▼n.  HOBTR  OABOLIHA ;  PimrSTLVAiriA. 

28.  North  Carolina. —  (i)  State  deci- 
sions. —  Where  a  railroad  charter  requires 
that  "  its  treasurer  and  president  should,  be- 
fore receiving  an  instalment  from  the  state, 
satisfactorily  assure  the  board  of  internal 
improvements  by  a  certificate,  under  the 
seal  of  the  company,  that  an  amount  of  the 
private  subscription  has  been  paid,  in  equal 
proportion  to  the  payment  required  of  the 
state  " — held,  that  for  the  company  to  lake, 
as  cash,  the  notes  of  individuals  made  for 
the  occasion  to  enable  the  officers  to  make 
the  certificate  under  a  promise  that  such 
notes  were  not  to  be  enforced,  was  immoral 
and  against  public  policy,  and  such  individ- 
uals being  pari  delicto,  had  no  equity  to 
be  relieved  against  si  ch  nolci.    McRae  v. 


17« 


STATE  AID,  28. 


Atlantic  &»  JV.  C.  R.  Co..  S  Jones  Eq.  {N. 
Car.)  395. 

The  act  of  Dec.  18,  1868,  in  requiring  the 
treasurer  of  tlie  state  to  subscribe  for  stocic 
in  Chatham  R.  Co.,  and  to  pay  for  the  same 
by  issuing  bonds  of  the  state,  is  in  conflict 
with  the  state  Const,  art.  5,  §  S>  clause  2. 
Galloway  \.  Jenkins,  61 N.  Car.  147.  Baltser 
V.  State,  104  N.   Car.  265,    10  S,  E.  Rep. 

'53. 
A  subscription  for  stock  in  .1  corporation 

and  issuing  bonds  to  pay  for  such  stock,  is 

a  gift  of  the  credit  of  the  state,  within  the 

Licaning  of  the  above  section.    Galloway 

V.  Jenkins,  dj,  N.  Car.  147. 

Tlie  legislature  autiiorized  a  railroad 
company  to  issue  bonds  to  the  amount  of 
$2,300,000,  secured  by  a  first  mortgage  upon 
the  road ,  and  f  urtlier  engaged  that  the  state 
should  indorse  $1,000,000  of  such  bonds, 
provided  that  the  company  should  deposit 
$500,000  of  the  unindorsed  bonds,  as  secu- 
rity against  the  state  being  required  to  pay 
any  part  of  those  indorsed.  By  a  subse- 
quent act  they  authorized  the  $500,000  of 
bonds  thus  deposited  to  be  surrendered  to 
the  company,  to  be  used  in  constructing  its 
road  and  not  otherwise.  Held:  (i)  that  the 
latter  act  ir  volved  no  injustice  to  a  holder 
of  some  of  the  indorsed  bonds,  which  couUi 
entitle  him  to  an  injunction  restraining  the 
surrender  of  the  bonds ;  (2)  the  legislation 
did  not  create  a  contract  between  the  state 
and  the  bondholders  which  could  be  im- 
paired by  the  act  surrendering  the  $500,000 
of  bonds.  First  Nat.  Bank  v.  Jenkins,  64 
.A^.  Car.  719. 

By  the  act  of  Jan.  29,  1869,  the  general 
assembly  ordered  $4,000,000  of  state  bonds 
to  be  issued  to  a  company,  in  payment  of  a 
like  amount  of  stock  therein  to  be  subscribed 
for  by  the  state,  and  $3,500,000  were  issued 
accordingly;  by  the  act  of  Feb.  5,  1870,  the 
company  was  ordered  to  return  to  the  treas- 
urer all  such  bonds  as  it  then  had  on  hand. 
By  the  act  of  March  8,  1870,  the  act  of  Jan. 
29,  1869,  with  otner  like  acts,  was  repealed, 
and  the  bonds  issued  thereunder  again 
ordered  to  be  returned.  By  the  act  of 
March  12,  1870,  the  general  assembly  or- 
dered the  treasurer  to  deliver  to  the  com- 
pany $500,000  of  certain  first  mortgage 
bonds  ot  such  company,  theretofore  by  ii 
deposited  in  the  state  treasury  as  indemnity 
to  the  state  against  risks  by  it  incurred  for 
the  company,  "  upon  the  surrender  to  him  of 
$500,000  of  state  bonds";  and  on  June  i, 


1870,  the  private  stockholders  of  the  cont' 
pany,  in  special  meeting,  assented  to,  and 
accepted,  the  two  acts  last  mentioned. 
Held,  that  taking  the  acts  of  Feb.  5,  March 
8,  and  March  12  together,  the  treasurer  was 
not,  by  thejatter  act,  authorized  to  receive, 
in  exchange  for  the  bonds  by  hiin  to  be  de- 
livered, state  bonds  included  in  the  terms 
of  the  two  former  acts ;  and  this  without 
regard  to  the  question  of  the  constitution- 
ality of  those  former  acts,  as  it  must  be 
supposed  that  the  general  assembly  regarded 
them  as  constitutional.  McAden  \.  Jenkins, 
64  N.  Car.  796.— Followed  in  Raleigh  & 
A.  A.  L.  R.  Co.  V.  Jenkins,  68  N.  Car.  499. 

Where  a  state  exchanges  its  own  bonds 
for  the  bonds  of  a  railroad  company,  the 
effect  is  to  vest  the  ownership  of  the  rail- 
road bonds  in  the  state,  secured  by  a  mort- 
gage on  the  road  ,  and  the  state  has  a  val- 
uable interest  in  the  bonds  and  mortgage 
as  a  fund  which  it  may  dispose  of  in  aid  of 
other  works  of  internal  improvement,  sub- 
ject to  existing  equities.  Wilmington,  C. 
&*  R.  R.  Co.  v.  Western  R.  Co.,  66  A^.  Car.  90. 

Under  North  Carolina  Ordinance  of  March 
II,  1868,  providing  that  the  Chatham  rail- 
road company  may  take  up  its  bonds  de- 
posited with  the  state  treasurer  by  substi- 
tuting bonds  of  the  state,  or  other  evidence 
of  indebtedness  of  the  state,  the  treasu'er  is 
not  bound  10  accept  in  exchange  for  mort- 
gage bonds  of  the  company  any  state  bonds 
issued  aiicr  the  passage  of  the  ordinance. 
Raleigh  &*  A.  A.  L.R.  Co.  v.  Jenkins,  68  A^. 
Car.  499,  502. 

The  United  States  courts  may  take  juris- 
diction of  causes  affecting  the  property  of 
a  state  in  the  hands  of  its  agents,  without 
making  the  state  a  party  when  the  property 
or  agent  is  within  their  jurisdiction.  In 
such  cases  the  courts  act  through  the  instru- 
mentality of  the  property  or  the  agent. 
Swasey  v.  A^orth  Carolina  R.  Co.,  71  N.  Car. 
571. 

So  where  a  state  subscribes  to  the  stock 
of  a  railroad  and  issues  its  own  certificates 
of  indebtedness  therefor,  and  pledges  the 
faith  of  the  state  and  the  stock  owned  by  it, 
with  any  dividends  thereon,  and  suit  is 
commenced  thereon  without  making  the 
state  a  party,  plaintiff  is  entitled  to  have  a 
certain  amount  of  the  whole  stock,  <,r  as 
much  as  may  be  necessary,  sold  to  pay  past- 
due  interest;  and  where  a  proportion  of  the 
stock  is  ordered  sold  it  should  bear  the 
same  proportion  to  the  whole  stock  as  the 


STATE   AID,  28. 


177 


certificates  held  by  him  do  to  the  whole 
amount  of  stock  outstanding  ;  and  a  federal 
court  may  take  jurisdiction  over  the  agent 
of  the  state  who  has  custody  of  sucli  stock. 
Swasty  V.  North  Carolina  R.  Co.,  71  N.  Car, 

571. 

The  amendment  of  North  Carolina  con- 
stitution in  i"8o,  prohibiting  the  general 
assembly  Irom  paying,  or  assuming  to  pay, 
any  bonds  or  debt  incurred  by  authority  of 
the  convention  of  1868,  or  by  the  legislature 
at  any  session  from  1868  to  1870,  takes 
away  the  jurisdiction  of  the  supreme  court, 
under  art.  4,  §  9,  of  the  constitution,  to  hear 
claims  against  the  state,  founded  upon  obli- 
gations alleged  to  have  been  incurred  by 
the  state  during  the  above  period.  Such 
amendment  of  the  constitution  does  not 
conflict  with  the  constitution  of  the  United 
States.  Baltzer  v.  State,  104  N.  Car.  265,  10 
.ST.  E.  Rep.  153. 

And  the  above  amendment  was  intended 
to  embrace  not  only  the  invalid  bonds 
themselves,  but  every  claim,  legal  or  equita- 
ble, growing  out  of  them.  Baltser  v  State, 
104  N.  Car.  265,  10  5.  E.  Rep.  153. 

(2)  Federal  decisions. — The  stock  of  the 
state  of  North  Carolina  in  the  Atlantic  & 
North  Carolina  railroad,  cannot  be  sold  in  a 
suit  for  non-payment  of  interest  thereon, 
against  the  company  and  others,  without 
making  the  state  a  party  ;  and  the  fact  that 
the  act  authorizing  the  stock  pledged  it  for 
payment  of  interest  and  principul  of  the 
bonds,  would  not  authorize  a  proceeding 
in  rem,  without  notice  to  the  state.  Chris' 
tian  v.  Atlantic  6-  N.  C.  R.  Co.,  133  U.  S. 
233,  10  Sup.  Ct.  Rep.  260.— Quoted  in 
Pennsylvania  R.  Co.  v.  Allegheny  Valley 
R.  Co. ,  48  Fed.  Rep.  1 39. 

N.  Car.  Act  of  1855,  authorizing  the  state 
to  subscribe  to  the  stock  of  a  railroad, 
pledged  "  the  public  faith  of  the  state,"  and 
the  stock  itself,  to  the  payment  of  interest 
and  principal  of  the  bonds.  Held,  l\\a.t  this 
did  not  create  an  ordinary  pledge,  but  only 
a  solemn  promise  of  the  state.  Christian 
v.  Atlantic  &>  N.  C.  R.  Co.,  133  U.  S.  233, 
\oSm^.  Ct.Rep.  260. 

Stock  in  a  raihoad  held  by  a  state  cannot 
be  sold  in  a  suit  in  equity,  as  the  state  can- 
not be  sued  without  its  consent.  Christian 
V.  .4tlaniic  &*  N.  C.  R.  Co.,  133  U.  S.  233. 
10  Sup.  Ct.  Rep.  260.— Criticising  Swasey 
V.  North  Carolina  R.  Co.,  i  Hughes  (U.  S.) 
17.  Following  Cunningham  v.  Macon  & 
B.  R.  Co..  109  U.  S.  446. 
V  D.  R.  D.— 12 


A  holder  of  North  Carolina  railroad 
bonds  instituted  suit  against  the  auditor 
and  the  state  to  compel  the  levying  of  a 
special  tax  to  pay  interest  on  the  same. 
Neld,  that  the  suit  against  the  auditor  was 
the  same  as  a  suit  against  the  state,  and 
would  not  lie.  North  Carolina  v.  Templt, 
134  U.  S.  22.  10  Sup.  Ct.  Rep.  509.  — Fol- 
lowing Louisiana  z/.  Jumcl,  107  U.  S.  711  ; 
Cunningham  v.  Macon  &  B.  R.  Co,  109  U. 
S.  446;  Hagood  V.  Southern,  117  U.  S.  52; 
In  re  Ayers,  123  U.  S.  443  ;  Hans  v.  Louisi- 
ana, 134  U.  S.  I. 

N.  Car.  Act  of  Dec.  22,  1853,  authorized 
the  state  to  subscribe  to  the  stock  of  a  rail- 
road, and  issue  its  bonds  therefor,  and  pro- 
vided for  the  payment  of  the  principal,  and 
the  annual  interest,  but  said  nothing  about 
interest  on  the  principal  if  not  paid  when  due. 
The  bonds  were  issued  by  the  state  officers 
with  a  provision  for  payment  of  interest 
"  from  the  date  of  this  bond,  and  until  the 
principal  be  paid."  Held,  that  the  state 
was  not  chargeable  with  interest  after  the 
bonds  fell  due,  as  a  government  can  only 
be  liable  for  interest  when  it  has  given  its 
express  consent.  United  States  v.  North 
Carolina,  136  U,  S.  211,  to  Sup.  Ct.  Rep. 
920.— Following  United  States  v.  Sher- 
man, 98  U.  S.  565  ;  United  States  v.  Bayard, 
127  U.  S.  251;  In  re  Gosman,  17  Ch.  D. 

77'. 

The  state  subscribed  a  majority  of  the 
stock  of  a  railroad  company,  with  the  right 
to  vote  the  same  and  to  appoint  a  propor- 
tionate number  of  the  directors,  and  took  a 
statutory  mortgage  upon  its  stock  to  secure 
certain  construction  bonds  issued  by  it,  but 
subsequent'y  created  a  second  mortgage  on 
its  stock  to  secure  bonds.  While  the  road 
was  paying  six  per  cent,  on  its  capital  stock, 
defendant  company  leased  the  road  at  a 
rental  snfHcient  to  pay  the  interest  on  the 
first  mortgage.  A  second  mortgage  bond- 
holder filed  a  bill  to  compel  the  lessee  com- 
pany to  account  for  the  excess  of  earnings 
above  the  interest  on  the  first  mortgage. 
Held,  that  the  bill  could  not  be  maintained, 
in  the  absence  of  any  averment  of  fraud  in 
the  making  of  the  lease;  that  the  state. was 
not  a  trustee  because  it  was  a  majority 
stockholder,  and  was  under  no  obligation  to 
the  mortgagees,  except  to  conduct  itself 
honestly  in  exerting  its  power  for  the  inter- 
ests of  all  parties  concerned.  Gibson  v, 
Richmond  &>  D.  R.  Co.,  37  />«/.  Rep.  743, 
2  L.  R.  A.  467. 


« 


178 


STATE   AID,  20-32. 


29.  Penusylvania.— The  act  of  March 
7,  i86i,  authorizing  the  state  treasurer  to 
cancel  $3,500,000  of  tiie  bunds  of  the  Sun- 
bury  &  Erie  railroad  company,  and  direct- 
ing the  satisfaction  of  the  mortgage  for 
$7,000,000,  is  not  a  violation  of  the  state 
Const,  art.  2,  P  4,  relating  to  the  sinking 
fund,  and  is  thv.rcfore  constitutional.  Grata 
V.  PtHnsyhania  A'.  Co.,  41  Pa.  St.  447, 

By  an  act  of  assembly,  a  railroad  was  to 
receive  from  the  state  certain  canal  tolls, 
which  were  to  cease  when  "  net  proceeds  of 
the  road,  after  paying  necessary  expenses 
of  motive  power  and  superintendence,  ex- 
ceeded six  per  cent,  per  annum."  The  net 
receipts,  after  paying  expenses,  were  less 
than  six  per  cent,  on  capital  stock  and 
funded  debt,  but  exceeded  six  per  cent,  on 
the  capital  stock.  Held,  that  the  grant  had 
ceased.  West  Branch  Canal  Co.  v.  Elmira 
*•  W.  R.  Co.,  55  Pa.  St.  180. 

▼ni.  SODTH  CAROLIKA. 

30.  Coiistriistioii  of  statutes.— The 

act  of  1852  provided  for  two  subscriptions 
to  a  certain  railroad,  the  whole  subscription 
to  be  paid  in  bonds  "  payable  in  five  instal- 
ments of  $200,000  each."  But  one  subscrip- 
tion of  $300,000  was  niade,  and  the  first  two 
instalments  were  paid,  $200,000  each,  but 
the  comptroller-general  refused  to  make 
the  third  payment  on  the  ground  that  it 
was  but  $100,000  and  not  authorized  by  the 
statute.  Held,  that  this  construction  of 
the  statute  was  wrong,  and  the  amount 
should  be  paid.  Stale  ex  rel.  v,  Ashmore, 
10  Rich.  (So.  Car.)  248. 

The  act  of  1869,  autlio/izing  the  comp- 
troller-general on  a  certain  contingency  to 
take  possession  of  the  Savannah  &  Charles- 
ton railroad,  is  not  repealed  by  the  act  of 
1871,  directing  proceedings  for  foreclosure 
to  be  taken  against  all  railroad  companies 
which  had  failed  to  pay  the  interest  due 
upon  the  bonds  of  the  companies  guaran- 
teed by  the  state.  Ex  parte  Dunn,  8  So. 
Car.  207. 

Where  the  state  has  guaranteed  the 
bonds  issued  by  a  railroad  company,  and  has 
taken  a  mortgage  or  lien  upon  the  railroad 
and  all  its  property  to  protect  the  state  from 
loss  on  account  of  its  guaranty,  an  act  of 
the  legislature  authorizing  and  directing 
the  comptroller-genera!  to  take  possession 
of  the  road  on  the  company  becoming  in- 
solvent and  failing  to  pay  the  bonds  does 
not  authorize  the  performance  of  an  act 


which  could  only  be  performed  through 
the  instrumentality  of  the  judicial  depart- 
ment of  the  state.  Ex  parte  Dunn,  8  So, 
Car.  207. 

31.  Enforconient  of  state's  lien.— 
Application  was  made  for  leave  to  purchase 
a  tract  of  land  at  private  sale  belonging  to  a 
railroad  company,  and  which  was  not  nec- 
essary for  its  corporate  purposes.  The  land 
was  subject  to  the  liens  created  by  statute  in 
favor  of  the  state  as  guarantor  of  bonds  of 
the  company,  and  of  mortgages  created  by 
the  company.  Held,  that  the  court  would 
not  order  a  sale  upon  a  valuation  fixed  by 
a  single  witness  who  is  not  an  expert,  and 
who  derived  his  knowledge  from  others. 
When  the  court  departs  from  the  general 
rule  of  selling  property  at  public  auction,  it 
must  be  fully  informed  as  to  its  probable 
value.  Bound  v.  South  Carolina  R.  Co.,  46 
Fed.  Rep.  315. 

The  state  guaranteed  the  bonds  of  a  com- 
pany, issued  in  exchange  for  outstanding 
mortgage  bonds,  under  a  statute  which  pro- 
vided that  the  state  should  take  and  retain 
p:>ssession  of  the  bonds  so  surrendered  in 
exchange  as  "security  to  the  state,  and  there- 
by give  the  state  the  lien  under  the  first 
incrtgage  until  all  the  bonds  now  secured  by 
r.iortgage  shall  be  retired  ;"  all  of  the  mort- 
gnge  bonds  not  having  been  surrendered  or 
exchanged.  He/d,  that  the  state  could  as- 
sert tiie  lien  of  the  mortgage  bonds  so  held 
by  her,  together  with  the  coupons  thereto 
attached,  as  of  equal  rank  with  the  mort- 
gage bonds  not  exchanged.  Gibbes  v.  Green- 
ville  iS-  C.  R.  Co.,  4  Am.  &»  Eng  R.  Cas. 
459,  1350.  Car.  228. 

32.  Rights  of  boiulhnl4lor8,geiier> 
ally.— An  act  of  1856  provided  for  an  in- 
dorsement by  the  state  of  a  company'j 
bonds,  as  the  road  was  completed  by  sec- 
tions, and  that  the  state  should  have  a  lien 
upon  that  portion  of  the  road,  without  any 
formal  writing,  and  a  lien  upon  the  whole 
of  the  road  when  completed.  HeJd,  that 
such  indorsed  bonds  constituted  a  lien 
upon  the  entire  road  when  completed,  which 
enured  not  for  the  benefit  of  the  state 
alone,  but  for  the  security  of  the  bonds  and 
their  coupons  in  the  hands  of  subsequent 
holders.  Hand  v.  Savannah  &*  C.  R.  Co.,  1 2 
So.  Car.  314.— Distinguished  in  Tennes- 
see liond  Cases.  24  Am.  h  Eng.  R.  Cas.  217, 
1 14  U.  S.  663.  QuoTEii  IN  Gibbes  v.  Green- 
ville &  C.  R.  Co.,  4  Am.  &  Eng.  R.  Cas.  459, 
13  So.  Car.  228. 


Its   <- 


STATE   AID,  32. 


179 


By  section  5  of  the  above  statute  it  was 
provided  that  "  the  state  expressly  reserves 
the  right  to  enact  hereafter  all  such  laws  as 
may  be  deemed  necessary  to  protect  the  in- 
terests of  the  state,  and  to  secure  it  against 
loss  in  consequence  of  the  indorsing  of 
bonds  under  the  provisions  of  this  act,  but 
in  such  a  manner  as  not  to  impair  the  vested 
rights  of  the  stockholders  of  the  company." 
Held,  that  this  did  not  give  the  state  the 
I  iglit  to  destroy  or  postpone  the  lien  created 
thereby  to  secure  payment  of  the  bonds; 
and  the  subsequent  act  of  1869,  which  at- 
tempts to  postpone  the  lien,  is  void  as  im« 
pairing  the  obligation  of  a  contract.  Hand 
V.  Savannah  &*  C.  R.  Co.,  12  So.  Car.  314. 
Ci66es  V.  GrttnviUt  &>  C.  A".  Co.,  4  Am.  &» 
Eng.  R.  Cas.  459,  13  So.  Car.  238. 

Persons  holding  bonds  authorized  by  the 
former  act  were  not  estopped  from  insisting 
upon  their  prior  lien  because  of  a  failure  to 
oppose  the  passage  of  the  latter  act,  which 
attempt. -d  to  postpone  their  lien  ;  neither 
were  such  bondholders  estopped  from  as- 
serting their  prior  Hen  by  accepting  pay- 
ment of  their  coupons  after  the  passage  of 
the  subsequent  act,  which  provided  for  the 
rebuilding  of  the  road,  after  it  had  been 
partially  destroyed  by  the  civil  war.  Hand 
V.   Saiiannah   &»  C.  R.  Co.,  12    So.  Car. 

314. 

Noitlier  can  the  company,  nor  junior  en- 
cumbrancers, object  that  the  original  bond- 
holders, under  the  act  of  1856,  have  made 
no  attempt  to  obtain  payment  from  the 
state ;  nor  will  a  court  of  equity  require  such 
bondholders  to  look  primarily  to  the  state 
for  payment  because  they  hold  a  double  se- 
curity. HandM.  Savannah  &»  C.  R.  Co.,  12 
So.  Car.  314. 

And  such  original  bondholders  are  not 
estopped  from  asserting  their  prior  lien  be- 
cause they  permitted,  without  objection, 
money  to  be  raised  under  the  act  of  1869, 
and  expended  in  the  improvement  of  the 
road.  Handw,  Savannah  &»  C.  R.  Co.,  12 
So.  Car.  314. 

judgment  cannot  be  rendered  against 
the  state  upon  its  guaranty  in  favor  of 
holders  of  tlic  redemption  bonds  of  1869. 
Hand  v.  Savannah  &*  C.  R.  Co.,  1 2  So.  Car. 

3'4. 

The  holders  of  redemption  bonds  of  1869 
have  110  lien  under  either  act,  as  the  act  of 
1869  only  secures  bonds  issued  for  money 
borrowed.  Ncr  can  they  require  the  state 
as  surety  to  set  up  the  coupons  received  in 


exchange  for  such  guaranteed  redemption 
bonds,  as  against  the  bonds  issued  under 
cither  act.  Hand  v.  Savannah  &*  C.  R.  Co., 
12  So.  Car.  314. 

A  statute  authorizing  the  guarantee  by 
the  state  of  certain  bonds  of  a  railroad  com- 
pany to  be  secured  by  a  statutory  lien,  was 
passed  in  1861,  and  the  bonds  issued  and 
guaranteed  thereunder  bore  the  caption 
"Confederate  States  of  America."  In  1866 
another  act  was  passed  which  extended  the 
operation  of  the  act  of  1861,  and  authorized 
the  issue  of  new  bonds  in  exchange,  also 
certificates  of  indebtedness  to  pay  interest 
past  due  on  the  bonds  of  1861,  and  bonds 
for  other  indebtedness,  all  of  which  were  to 
be  in  like  manner  guaranteed.  HeM,  that 
the  bonds  of  1861  not  surrendered  were  of 
superior  rank  to  the  bonds  issued  under  the 
act  of  1 866,  but  those  issued  under  the  act  of 
1866,  in  exchange  for  bonds  surrendered, 
could  claim  a  lien  only  under  the  latter  act, 
and  stood  upon  the  same  footing  with  all 
other  bonds  issued  under  the  act  of  1866. 
GiUa  V.  Greenville  &*  C.  R.  Co.,  4  Am.  &» 
Eng.  R.  Cas  459,  13  So.  Car.  228.— Quoting 
Hand  v.  Savannah  &  C.  R.  Co.,  12  So.  Car. 

3>4. 

The  state  chartered  a  railroad  company 
with  an  exemption  from  taxation,  and  after 
bonds  had  been  issued  which  constituted  a 
statutory  lien  on  the  property  of  the  com- 
pany, the  legislature  passed  an  act  under- 
taking to  postpone  the  first  lien  in  favor  of 
a  second  issue  of  bonds,  upon  condition 
that  the  company  would  release  its  exemp- 
tion from  taxation.  The  postponement  of 
the  lien  was  declared  unconstitutional. 
Held,  that,  as  to  non-consenting  bond- 
holders under  the  first  lien,  the  property  of 
the  company  was  exempt  from  taxation, 
even  after  it  passed  to  a  second  company. 
Hand  V.  Savannah  &*  C.  R.  Co.,  17  So.  Car. 
219. 

The  fact  that  some  coupons  of  first-lien 
bonds  were  paid  in  state-guaranteed  bonds 
under  tiie  act  of  1869  raises  no  equity  for 
the  payment  of  the  unfunded  coupons  of 
the  same  class  and  dates  in  preference  to  the 
bonds  and  later  coupons.  Surh  unfunded 
coMpons  are  entitled  to  take  only  their  ^<> 
rata  with  other  bonds  and  coupons  of  the 
first  lien  not  postponed  by  settlement  or  the 
estoppel  of  their  owners.  Hand  v.  Savan- 
nah «S-  C.  R.  Co.,  17  So.  Car.  219.— Quoting 
Claflin  V.  South  Carolina  R.  Co.,  8  Fed.  Rep. 
118. 


Hi 

hi 


Hi 


180 


STATE   AID,  3a-3fi. 


83.  Bondholdora,  ivhoii  estopped. 

—Under  So.  Car.  Act  ol  1856  the  stale  guar- 
anteed the  bonds  of  a  railroad  company ; 
but  in  1869  it  undertook  to  postpone  the 
first  bonds,  giving  preference  to  a  second 
issue,  but  this  act  was  declared  unconstim- 
tional.  //e/d,  notwitlistanding,  that  bord- 
holders  of  the  issue  of  1856  who  had  ac- 
cepted payment  in  the  bonds  of  1869,  were 
estopped  from  claiming  a  lien  under  the 
first  act ;  but  where  the  (jiicstion  is  raised 
whether  certain  bondholders  had  accepted 
payment  as  above,  it  becomes  a  question  of 
fact,  and  the  burden  of  proof  is  on  those 
who  claim  the  benefit  of  the  estoppel ;  and 
the  fact  that  persons  own  coupons  from  such 
bonds  will  not  raise  a  presumption  thai  they 
own  the  bonds  also,  //nntlv.  Savannah  &- 
C,  K.  Co.,  17  So.  Car.  219. 

The  holders  of  first-lien  bonds  retaining 
that  rank  are  exclusively  entitled  lo  the 
benefit  of  the  first  lien,  and  cannot  be  re- 
quired to  share  that  benefit  with  the  second 
statute  lien  to  the  extent  of  the  quantity  of 
the  first  iicn  removed  by  the  estoppel  of 
partie;  holding  under  it.  Hand  v.  Savannah 
&*  C.  R.  Co.,  17  So.  Car.  219;  see  also  12  So. 
Car.  314. 

Nor  are  the  interest-fund  bonds,  guaran- 
teed by  the  state  issued  under  the  act  of 
1869  in  payment  for  the  coupons  of  the  first- 
lien  bonds,  entitled  to  the  rank  held  by  the 
coupons  which  these  bonds  satisfied.  Hand 
V.  Savannah  &*  C.  A".  Co.,  17  So.  Car.  219. 

34.  "  Uovoniie  bond  scrip."— A  rail- 
road issued  ^.000,000  of  bonds  wiih  the 
guaranty  of  the  stuic  thereon.  Afterwards 
the  state  passed  an  act  to  retire  these  bonds, 
and  issue  in  lieu  thereof  $1,800,000  of  its 
certificates  of  indebtedness,  styled  "revenue 
bond  scrip,"  which  should  be  receivable  for 
taxes  and  all  dues  to  the  «Mic,  except  a  tax 
to  pay  interest  on  the  public  debt.  After- 
wards the  stale  legislated  so  as  practically  to 
deny  its  obligation  on  these  certificates.  A 
holder  of  certain  of  these  certificates  filed 
a  bill,  to  compel  certain  officers  to  ceai.c 
from  refusing  to  take  them  for  taxes,  and  to 
cease  from  refusing  to  levy  a  tax  to  retire 
them.  Held,  that  his  bill  was  fatally  de- 
fective for  not  selling  up  the  unconslitu- 
tionalily  of  the  laws,  and  that  he  was  in- 
jured thereby,  and  in  not  averring  that  he 
would  be  injured  by  such  refusal  of  the  offi- 
cers.     Williams  v.  Hagood,  98  U.  S.  72. 

The  state  guaranteed  certain  railroad 
bonds,  and  afterwards,  to  rid  itself  of  that 


obligation,  passed  a  law  whereby  the  bonds 
were  surrendered,  and  in  their  stead,  but 
for  a  smaller  sum,  the  state  issued  its  cer- 
tificates of  indebtedness,  called  "  revenue 
bond  scrip."  In  a  suit  to  enforce  the  obli- 
gation of  these  certificates— A^/r/,  that  the 
state,  being  the  real  party  in  interest,  could 
not  be  made  a  defendant  without  its  con- 
sent, and  that  state  officers,  who  were  par- 
ties, could  not  enter  appearance  for  the 
state,  or  defend  in  its  name.  Hagood  v. 
Southern,  117  U.  S.  52.  6  Sup.  Ct.  Ktp. 
608. --Distinguishing  Osborn  v.  Bank 
of  U.  S..  9  Wheat.  (U.  S.)  738:  Davis 
V.  Gray,  16  Wall.  (U.  S.)  203;  Board  of 
Liquidation  v.  McComb,  92  U.  S.  531 ;  Allen 
V.  Baltimore  &  O.  R.  Co.,  114  U.  S.  311  ; 
Cunningham  v.  Macon  &  B.  R.  Co.,  109  U. 
S.  446.  Following  Louisiana  v.  Jumel,  107 
U.  S.  711. 

The  revenue  bond  scrip,  issued  by  the 
state  treasurer,  under  the  act  of  March  2, 
1872,  to  relieve  the  state  of  all  liability  of 
its  guaranty  of  the  bonds  of  the  Blue  Ridge 
railroad  company,  being  certificates  of  in- 
debtedness, payable  to  bearer,  issued  by  the 
stale  in  its  sovereign  capacity,  with  the 
faith  of  the  state  pledged  for  their  ultimate 
redemption,  and  intended  to  circulate  as 
money,  are  bills  of  credit,  which,  by  the 
constitution  of  the  United  States,  a  slate  is 
inhibited  from  issuing,  and  are,  therefore, 
null  and  void.  State  ex  rel.  v.  Comptroller- 
General,  4  So.  Car.  185. 

IX.  TEHNEfBEE;  TEXAS;  TIBOIHIA 

35.  TciiuesHce.— (1)  In  general.— Tht 
act  of  Feb.  11,  1852.  and  the  subsequent 
acts  enlarging  or  amending  the  same,  known 
asthe  Internal  Improvement  Acts,  provided, 
among  other  things,  for  granting  slate  aid 
to  railroad  companies,  and  authorizing  the 
governor  to  appoint  receivers  for  the  ro.»J^ 
upon  a  failure  lo  pay  interest  on  the  state 
bonds.  Held,  that  such  receivers  had  no 
authority  lo  create  debts,  except  to  be  paid 
out  of  the  earnings  of  the  road.  And 
there  is  no  obligation  on  the  state  to  con- 
tinue the  receiver  until  current  indebtedness 
created  by  him  has  been  paid.  The  fact 
that  the  indebtedness  created  by  the  re- 
ceiver increased  the  vSue  of  the  property, 
and  thereby  strengthened  the  state's  secu- 
rity, cannot  add  to  the  strength  of  the  claim. 
Siate  V.  Edgefield  6-  K.  R.  Co.,  4  Am.  &» 
Eng.  R.  Cas.  86,  6/.M  (Tenn.)  353. 


STATE   AID,  30. 


181 


The  indorser  of  a  negotiable  state  bond, 
whose  liability  has  been  fixed  by  demand  of 
payment  of  the  bond  ut  maturity,  protest 
for  non-payment  and  notice,  is  thereby  ren- 
dered liable  for  the  unpaid  coupons  then  at- 
tached to  the  bunds,  with  interest  thereon, 
without  a  separate  presentment  for  [myment 
of  the  several  coupons  as  they  fell  due,  pro- 
test for  non-payment  and  notice.  Latie  v. 
East  Tenn.,  V.&*  G.  A'.  Co.,  13  /.en  (7V««.) 

547. 

A  company  which  had  received  state  aid 
took  land  for  the  purposes  of  its  road,  with- 
out puyinf;  therefor,  and  the  landowner  ob- 
tained a  judgment  and  sued  out  execution, 
which  was  returned  nu/itt  iana.  Subse- 
quently the  state  appointed  a  receiver,  who 
tooic  possession  of  the  road,  to  enforce  the 
state's  lien  for  extending  such  aid.  //eM, 
that  the  lien  of  the  landowner  is  superior 
to  that  of  the  state,  and  where  he  has  no 
collateral  security,  as  by  appeal  bond  or 
otherwise,  a  court  of  equity  will  enjoin  the 
receiver  from  running  trains  over  the  land 
thus  taken  and  not  paid  for.  IV/iite  v. 
A'itshville  &>  ,V.  W.  Ji.  Co.,  7  Hfisk.  {Tenn.) 
518. -Distinguishing  I^ierce?'.  Milwaukee 
&  St.  P.  R.  Co.,  24  Wis.  551,  I  Am.  Rep. 
203.  Rkvif.wing  Perks  7/.  Great  Wycombe 
R.Co.,3GifT.  662  ;  States.  Mexican  Gulf  R. 
Co.,  3  Rob.  (La.)  5I3.~Distinguished  in 
State  ex  rel.  v.  Nashville.  C.  &  St.  L.  R. 
Co.,  7  Lea  (Tenn.)  15;  Simms  v.  Memphis, 
C.  &  L.  R.  Co.,  12  Ileisk.  621. 

In  such  case  the  company's  charter  con- 
tained two  provisions,  somewhat  conflict- 
ing :  one  that  the  company  appealing  should 
be  at  liberty  to  proceed  with  the  work  of 
construction  only  upon  giving  a  bond,  and 
the  other  prohibiting  an  injunction  or  5W- 
perstdens  to  stop  the  work.  Htld,  that  the 
latter  provision  was  controlling.  White  v. 
Nashville  <S-  A'.  IV.  Ji.  Co.,  7  Heisk.  ( Tenn.) 
518. 

(2)  The  lien  of  the  state.— The  lien  of  the 
state  on  the  property  of  railroad  companies, 
acquired  under  the  .ict  of  Feb.  11,  1852, 
known  as  the  Internal  Improvement  Act, 
and  the  several  amendments  thereto,  only 
binds  the  property  of  the  companies  for 
the  piiyment  of  principal  and  interest  of 
bonrls  issued  to  the  state,  and  does  not  ex- 
tend to  the  several  individual  holders  of 
bonds.  Tennessee  Bond  Cases,  24  /4m.  <5^ 
Eng^.  A'.  Cas.  217,  114  i/.  5.  663.  5  Sn/).  CI. 
Rep.  974,  1098;  affifHiinff  2  Flipp.  (U.  S.) 
715.  3  Eeil.    Kep.  673. -- DlSTiNcuisilhM; 


Hand  V.  Savannan  &  C.  R.  Co.,  12  So.  Car. 
3«4. 

Moneys  earned  by  railroad  companies  in 
working  their  roads  after  completion  are 
not  comprehended  within  the  lien  retained 
by  the  state  under  the  act  of  Feb,  11,  186a, 
providing  for  a  lien  where  the  state  loans  its 
txmds  to  a  company.  AfcGraw  v.  Memphis 
&*  O.  A'.  Co.,  5  CoMw.  (Tenn.)  434.— AP- 
I'Kovino  Fowler  v.  Pittsburg,  Ft.  W.  &  C. 
R.  Co.,  35  Pa.  St.  32. 

The  lien  reserved  to  the  state  by  the  act 
of  1851-3,  ch.  151,18  3,4,  upon  the  property 
of  railroad  companies  which  have  received 
state  aid  in  the  purchase  of  iron  for  their 
roads,  does  not  attach  upon  money  paid  in 
for  stock  while  said  roads  are  under  con- 
struction. A  debt  due  from  a  railroad  tax 
collector  for  taxes  collected  to  pay  a  county 
subscription  to  a  railroad,  although  reduced 
into  a  judgment  in  a  suit  against  said  col- 
lector in  the  name  of  the  siate,  is  neverthe- 
less the  property  of  said  railroad  company, 
and  therefore  the  subject  of  garnishment  at 
the  suit  of  a  creditor  of  the  company  at  any 
time  before  said  road  is  completed.  Hoard 
V.  Casey,  4  Sneed {Tenn.)  178. 

The  lien  of  the  state  on  railroads  for  the 
security  of  bonds  loaned  under  the  Internal 
Improvement  Laws  of  1851-53  is  superior 
to  the  rights  of  holders  of  tax  certificates 
under  the  act  of  1851-53,  ch.  117,  providing 
for  county  subscriptions  and  making  said 
certificates  receivable  for  freight  and  pas- 
sage over  the  road.  A  purchaser  of  the 
road  or  the  state's  interest  therein  under  a 
sale  in  pursuance  of  the  act  of  Dec.  3i,  1870, 
is  not  bound  to  receive  such  certificates  for 
freight  or  passage  on  the  road.  Statt  ex 
rel.  v.  Nashville,  C.  &*  St.  L.  Ji.  Co.,  7  Lea 
(Tenn.)  15.  —  Distinguishing  White  v. 
Nashville  &  N.  R.  Co.,  7  Heisk.  518.  Ex- 
plaining Mobile  &  O.  R.  Co.  v.  Wisdom, 
5  Heisk.  125. 

30.  Texas.— The  act  of  countersigning 
and  registering  bonds  by  the  comptroller 
contemplated  by  the  charter  of  the  Inter- 
national R.  Co.  was  not  a  mere  clerical  or 
ministerial  duty,  but  it  was  the  duty  of  the 
comjjtroller,  as  well  as  of  the  governor,  to 
see  that  the  proper  and  necessary  work  to 
be  done  by  the  company  before  the  bonds 
could  issue  under  the  law  had  been  per- 
formed. Bledsoe  v.  Internatitinal  R.  Co.,  40 
Tex.  537. 

Where  bonds  are  issu.:d  without  authority 
of  law  by  a  corporation  which  had  received 


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182 


STATE   AID,  37. 


state  aid,  and  the  directory  of  the  corpora- 
tion fails  to  resist  payment  of  such  bonds, 
such  acts  are  in  violation  of  a  duty  owed  the 
stockholders  and  creditors  of  the  corpora- 
tion ;  but  such  failure  is  not  the  exercise  of 
a  power  not  conferred  by  law,  but  a  failure 
to  exercise  a  proper  and  necessary  power, 
which  does  not  present  a  case  within  the 
letter  or  spirit  of  the  constitution  entif'ing 
the  slate  to  a  preventive  remedy  as  against 
the  bondholders,  mortgagees,  or  trustee;, 
unless  it  be  shown  that  the  public  has  r  n 
terest  in  the  non-payment  of  the  boiids 
through  foreclosure  or  otherwise.  State  v. 
Farmers'  L.&^  T.  Co.,  $o  Am.  &•  Enj;.  J\ 
Cas.  683,  81  Tex.  530,  17  5.  JF.  Rep.  do. 

A  railroad  mortgage  to  secure  bonds  pi 
vided  that  it  was  entitled,  under  a  statute, 
to  procure  a  loan  from  the  state  of  $6000 
per  mile,  on  certain  conditions,  which  should 
constitute  a  lien  on  the  road  prior  to  the 
mortgage.  When  the  road  was  completed, 
except  forty  miles,  for  which  no  loan  had 
been  received  from  the  state,  the  legilature 
authorized  the  company  to  mortgage  the 
forty  miles  to  secure  bonds  amounting  to 
$6000  per  mile,  on  condition  that  it  would 
relinquish  any  claim  upon  the  state  for  a 
loan  for  that  portion  of  the  road.  Held: 
(i)  that  the  act  of  the  legislature  did  not 
invade  any  substantial  or  vested  rights, 
and  was  therefore  valid  ;  (2)  that  the  bonds 
issued  under  the  second  mortgage  consti- 
tuted a  first  lien  upon  the  forty  miles  of 
road,  in  the  hands  of  persons  who  paid  full 
face  value  therefor.  Campbell  v.  Texas  &* 
N.  O.  A'.  Co.,  2  Woods  (U.  S.)  263. 

But  in  such  case  it  was  objected  that  the 
bonds  which  were  given  to  the  state  varied 
from  those  which  were  to  be  given,  and 
hence  they  could  not,  even  by  legislative  aid, 
be  substituted  therefor  without  impairing 
the  obligation  of  the  contract  between  the 
company  and  the  bondholders,  as  the  origi- 
nal bonds  were  to  run  for  ten  years,  and  were 
to  have  a  sinking  fund  provided  for  their 
payment,  while  those  given  were  to  run  for 
tifteen  years,  without  any  sinking  fund. 
Held,  that  such  changes  were  not  of  the  es- 
sence of  the  contract,  and  that  the  legisla- 
ture might  authorize  the  changes  without 
impairing  the  obligation  of  the  contract  con- 
tained in  the  first  mortgage.  Campbell  v. 
Texas  &^  N.  O.  K.  Co.,  2  Woods  {(/.  S.)  263. 

It  was  further  objected  that  the  original 
bonds  were  to  bear  but  six  percent,  interest, 
while  those  given  in  their  stead  bore  eight 


per  cent.  Held,  that  the  substitution  of  the 
additional  two  per  cent,  was  an  invasion  of 
the  rights  of  the  holders  of  the  first  bonds, 
and  they  had  a  right  to  object  to  any  bonds 
being  made  superior  to  theirs  above  $6000 
per  mile,  at  six  per  cent,  interest.  Campbell 
V.  Texas  6r-  N.  O.  Ji.  Co.,  2  Woods  ( U.  S.)  263. 

37.  Virginia.— The  acts  of  March  20, 
1848,  and  of  March  29,  1851,  authorized  the 
guaranty  of  the  state  upon  the  bonds  of  the 
city  of  Wheeling  to  pay  her  subscription  to 
the  stock  of  the  Baltimore  &  Ohio  R.  Co., 
payable  to  bearer  and  transferable  by  deliv- 
ery, though  not  payable  to  the  company,  but 
K^  a  third  person.  Arents  v.  Com.,  18  Gratf. 
7a.)  750.— Reviewing  In  re  Agra  &  M. 
Pank,  L.  R.  2  Ch.  397. 

Though  the  act  of  March  i,  1867,  entitled 
•  An  act  to  authorize  the  James  River  & 
Kanawha  Company  to  borrow  money,"  when 
its  terms  are  accepted  by  such  company, 
creates  a  contract  between  the  company 
and  the  state,  it  does  not  create  a  contra(  t 
between  the  company  and  the  holders  of 
the  $180,000  of  state  bonds  therein  men- 
tioned, and  a  holder  of  one  of  these  bonds 
cannot  maintain  an  action  thereon  against 
the  company.  Stuart  v.  James  River  &•  1\. 
Co.,  24  Gratt,  ( Va)  294. 

Thougii  the  company  has  executed  a 
mortgage  on  its  property  to  secure  the 
money  authorized  to  be  borrowed  by  said 
act,  yet  if  the  company  has  not  borrowed 
the  money,  or  made  use  of  the  bonds  in- 
tended to  be  secured  by  the  mortgage,  it 
cannot  be  neld  to  have  accepted  the  terms 
of  the  act  or  become  liable  under  its  proviso 
in  relation  to  the  $180,000  of  state  bonds. 
Stuart  V.  James  River  &•  K.  Co.,  24  Gratt. 
(,Va.)  294. 

The  holder  of  bonds  of  the  state  issued 
before  the  war  to  the  Kanawha  board  of  the 
James  River  &  Kanawha  company,  under 
the  act  of  March  23,  i860,  §  9,  is  entitled  to 
have  the  bonds  transferred  upon  the  books 
of  the  second  auditor  of  the  treasury,  and 
funded  under  the  provisions  of  the  act  of 
March  30,  1871,  as  amended  by  the  repeal- 
ing clause  of  the  act  of  March  7,  1872,  enti- 
tled "  An  act  declaring  what  shall  be  re- 
ceived in  payment  of  taxes,"  etc.  Robinson 
v.  Rogers,  24  Graft.  ( Fa.)  319. 

A  proceeding  by  mandamus  is  the  proper 
proceeding  10  compel  the  second  auditor  to 
transfer  and  fund  said  bonds,  his  act  in  do- 
ing so  being  merely  ministerial.  Robinson 
V.  Rogers,  24  Gratt.  (  Va.)  319. 


STATE  COURTS— STATES. 


183 


t  fl 


The  act  of  March  i8,  1862,  passed  by  the 
Confederate  state  government,  in  relation 
to  said  bonds,  was  temporary  in  its  charac- 
ter, and  has  been  repealed  by  implication. 
Robinson  v.  Rogers,  24  Gratt.  (Fa.)  319. 

STATE  COURTS. 

Conclusiveness  of  judgments  of,  in  federal 
courts,  see  Judgment,  20. 

Concurrent  jurisdiction  of  federal  courts  with, 
see  Federal  Courts,  12. 

Conflict  between  federal  courts  and,  in  in- 
junction suits,  see  INJUNCTION,  59. 

receivers   of,    and   those   of    federal 

courts,  see  Receivers,  40. 

—  of  jurisdiction  between  federal  courts  and, 

see  Federal  Courts,  13. 
Decisions  of,  followed  in  federal  courts,  see 

Municipal  and  Local  Aid,  318. 
when  followed  by  federal  courts,  see 

Municipal  and  Local  Aid,  51>. 
Effect  in,  of  previous  proceedings  in  federal 

courts,  see  Mortgages,  173. 

—  of  filing  petition  and  bond  for  removal  on 

jurisdiction  of,  see  Removal  op  Causes, 

C4. 
Following  decisions  of,  see  Federal  Courts, 

15,  28. 
Jurisdiction  of,  in  foreclosure  as  dependent  on 

locality,  see  Mortgages,  lOO. 
of  actions  for  causing  death,  see  Death 

BY  Wrongful  Act,  105-124. 
When  error  lies  to,  from  U.   S.    supreme 

court,  see  Federal  Courts,  24,  25. 


STATEMENT  OF  FACTS. 
On  appeal,  see  Appeal  and  Error,  139* 


STATE  LAWS. 

Adoption  of,  in  federal  courts,  see  Federal 
Courts,  14. 

Affecting  interstate  commerce,  see  Inter- 
state Commerce,  185-229. 

Inspection  of  interstate  traffic  undnr,  see  In- 
terstate Commerce,  227-229. 


STATE  LINES. 

Jurisdiction  as  dependent  upon,  see  Animals, 
Injuries  to,  292. 

STATEMENT. 
Of  claim  for  killing  stock,  in  justice's  court, 

see  Animals,  Injuries  to,  015-025. 
laborer's  lien,  filing  of,  see   Liens, 

49. 

—  employes,  evidence  of,  in  actions  for  in- 

jury, see  Employes,  Injuries  to,  577- 
581. 

—  fact,  amendment  of,  in  justice's  court,  see 

Animals,  Injuries  to,  029> 
Required  by  statute  to  be  filed  by  express 
companies,  src  I'xpress  Compamfs,  2. 


STATES. 

Ch,"tetrs  granted  by  two  or  more,  see  Char- 
ters, 12-16. 

Condemnation  of  land  owned  by,  see  Eminent 
Domain,  95. 

Control  by,  over  Union  Pacific  R.  Co.,  see 
Union  Pacific  R.  Co.,  6,  7. 

Corporations  chartered  in  two  or  more,  see 
Foreign  Corporations,  3. 

—  when  deemed  citizens  of  more  than  one 

state,  see  Citizenship,  etc,  1. 

Efiect  of  consolidation  of  roads  lying  in  dif- 
ferent states,  see  Consolidation,  37. 

Estoppels  against,  see  Estoppel,  2. 

Federal  grants  to,  see  Land  Grants,  11- 
46. 

Grants  by,  to  railroads,  see  Land  Grants, 
111-127. 

Joint  construction  of  railroad  by  municipality 
and,  see  Government  Railroads,  8. 

Jurisdiction  as  dependent  upon  state  lines, 
see  Jurisdiction,  6. 

—  of  suits  by   and   against,    see    Federal 

Courts,  1 1. 

Laws  of,  attempting  to  regulate  commerce, 
see  Commerce,  3-13. 

Liability  of,  for  killing  stock,  see  Animals, 
Injuries  to,  325. 

No  compensation  need  be  provided  for  tak- 
ing lands  of,  see  Eminent  Domain,  380. 

Ownership  of  fee  in  street  in,  eCfect  of,  see 
Streets  and  Highways,  141. 

Position  of.  as  a  stockholder,  see  Stock- 
holders, 4. 

Possession  by  jceiver  of  property  out  of,  see 
Receivers,  41. 

Power  of  attorney-general  to  bind,  see  At- 
torney-General, 3. 

over  navigable  waters,  see  Waters  and 

Watercourses,  2. 

to  prevent  discrimination,  see  Discrim- 
ination, 82. 

regulate  charges,  see  Winona  &  St. 

Peter  R.  Co.,  1. 

fares,  see    Tickets  and  Fares, 

114-116. 

United  States  to  condemn  lands  with- 
in, see  Eminent  Domain,  71. 

Regulation  by,  of  interstate  carriers  or  traffic, 
see  Interstate  Commerce,  215-220. 

speed,  see  Negligence,  28. 

—  of  charges  by,  see  Charges,  4-19. 
on  roads  chartered  by,  see  Charges, 

1.1. 

steam  roads  in  cities  by,  see  Streets 

AVI)  Highways,  296-.'I59. 


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184 


STATES,  1-4. 


Right  of  corporation  to  sue  in  foreign,  see 
Foreign  Corporations,  28. 

to  contest  elections  of  directors,  see 

Directors,  etc.,  14. 

enforce  quarantine  laws,  see  Quar- 
antine, 1. 

State  canals,  see  Canals,  5. 

Statutes  of,  relative  to  trial  by  jury  in  as- 
sessment of  land  damages,  see  Eminent 
Domain,  519. 

Suing  in  one,  on  cause  of  action  arising  in  an- 
other, see  Employes,  Injuries  to,  41)J>. 

Taxation  of  road  lying  partly  without,  see 
Taxation,  70. 

running  into  two  or  more,  see  Com- 
merce, 13. 

Title  of,  to  navigable  waters,  see  Riparian 
Rights,  lO. 

When  entitled  to  damages  for  land  taken,  see 
Eminent  Domain,  425. 

1.  Adiiiissiou  into  the  Union.— The 

effect  of  the  admission  of  a  part  of  the  ter- 
ritory of  Dakota  as  the  state  of  South 
Dakota,  and  the  erection  of  federal  courts 
tlierein,  under  the  Act  of  Congress  of  Feb. 
22,  1889,  was,  ipso  facto,  to  extinguish  the 
territorial  government  and  its  territorial 
courts.  Wing  v.  Chicago  &*  N.  IV.  K.  Co., 
I  S.  Dak.  455,  47  A^.  W.  Rep.  530. 

The  above-mentioned  act  makes  provision 
for  the  disposition  of  all  cases  pending  in 
the  territorial  courts  at  the  time  of  the  ad- 
mission of  South  Dakota  into  the  Union, 
and  the  circuit  and  district  courts  of  the 
United  States  are  declared  to  be  the  suc- 
cessors of  tiie  supreme  and  district  courts 
of  the  territory,  if  the  circuit  and  district 
courts  of  tiie  United  States  might  have  had 
jurisdiction  under  the  laws  of  the  United 
States,  had  such  courts  existed  at  the  time 
of  the  commencement  of  such  cases.  Wing 
V.  Chicago  6-  N.  W.  Ji.  Co.,  i  S.  Dak.  455, 
47  A^.  W.  Rep.  530. 

Parties  have  a  right  to  continue  the  case 
in  the  state  courts,  irrespective  of  its  federal 
character.  As  soon  as  any  active  st^ps 
have  been  taken,  any  acts  performed,  that 
show  presumptively  that  an  election  has 
been  made  to  remain  in  the  state  court,  the 
jurisdiction  of  the  state  court  becomes 
complete,  and  no  transfer  will  take  place. 
Wing  V.  Chicago  &^  N.  W.  R.  Co.,  i  S.  Dak. 
455.47  A^.  W.  Rep.  530. 

2.  Contractual  oblif^ations.  —  Ex- 
cept so  far  as  restrained  by  constitutional 
limitations,  a  state  has  the  same  power  to 
enter  into  contracts  that  any  private  person 


has,  and  is  equally  bound  by  the  contracts 
into  which  it  has  entered  ;  and  when  it  has 
become  a  p'arty  to  negotiable  paper,  its  lia- 
bility is  governed  by  the  same  principles  of 
law  that  apply  to  other  persons  in  that  rela- 
tion. State  ex  rel.  v.  Cobb,  7  Am.  6-  Eng. 
R.  Cas.  147,64  Aia.  127. 

3.  Exemption  from  suits.—  Where 
the  suit  is  against  state  officers  on  state 
bonds,  if  the  officers  are  the  mere  agents  of 
the  state,  it  will  be  deemed  a  suit  against 
the  state.  In  re  Ayers,  123  U.  S.  443,  8 
Sup.  Ct.  Rep.  164.— Followed  in  North 
Carolina  v.  Temple,  134  U.  S.  22. 

The  rule  which  forbids  suit  against  the 
officers  of  .1  state  because  in  effect  a  suit 
against  the  state  seems  to  apply  only  where 
the  ir  te  est  of  the  state  is  through  some 
contract  or  some  property  right  of  hers,  or 
where  her  interest  is  in  a  suit  in  her  own 
name,  brought  or  threatened  by  her  officers, 
to  enforce  some  alleged  claim  of  hers.  Mc- 
Whortcr  v.  Pmsacola  6-  A.  R.  Co.,  37  Am. 
&*  Eng.  R.  Cas.  566,  24  F/a.  417,  12  Am.  St. 
Rep.  220,  2  L.  R.  A.  504,  5  So.  Rep.  129. 

An  action  by  a  company  to  enjoin  state 
railroad  commissioners  from  putting  in 
force  a  schedule  of  rates,  is  not  in  effect  a 
suit  against  the  state  ;  but  the  statute  hav- 
ing prescribed  a  penalty  for  violating  the 
rates  fixed,  and  authorized  the  commis- 
sioners to  institute  action  in  the  name  of 
the  state  to  recover  the  penalty,  in  so  far  as 
the  bill  seeks  to  enjoin  them  from  doing  so, 
it  is  in  effect  a  suit  against  the  state.  Mc' 
Whorter  v.  Pensacola  ^^  A.  R.  Co.,  37  Am. 
&*  Eng.  R.  Cas.  566,  24  Fla.  417,  12  Am.  St. 
Rep.  220,  2/-.  R.  A.  504,  5  So.  Rep.  129. 

4.  Comity.* — Causes  of  action  arising 
under  the  statutes  of  one  state  may  be  en- 
forced in  the  courts  of  another  when  the 
laws  of  both  states  are  substantially  the 
same,  and  the  action  is  not  opposed  to  the 
general  policy  of  the  state  in  which  the 
suit  is  brought.  Such  suits  are  generally 
allowed  on  the  ground  of  the  comity  that 
exists  between  the  states.  Selma,  R.  &*  D. 
R.  Co.  V.  Lacy,  43  Ga.  461.  Western  &*  A. 
R.  Co.  V.  Strong,  52  Ga,  461.  Stallknechtv. 
Pennsylvania  R.  Co.,  53  How.  Pr.  {N.  Y.) 
305.  Richardson  v.  New  York  C.  R.  Co.,  98 
Mass.  85.  Chicago,  St.  L.  6-  A^.  O.  R.  Co. 
V.  Doyle,  8  Am.  <S-  Eng.  R.  Cas.  171,  60 
Miss.  977.   Nashville  &■*  C.  R.  Co.  v.  Spray- 


*  As  to  how  far  federal  courts  follow  state 
courts,  see  Federal  Courts,  14-16. 


STATION    AGENTS,  1,2. 


185 


terry,  8  Baxt.  (Tenn.)  341.  Dennick  v.  CV«- 
tral  R.  Co.,  i  ^w.  <S-  E»g.  A'.  Cas.  309.  103 
l/.S.ii.  PatioH  V.  Pittsburgh,  C.  6- 5/.  Z,. 
^.  Co.,  II  Am.  (So  £">ftr-  ^i'  <^'"-  658,  96  /»«. 
5/.  169.  Morris  v.  Chicago,  Ji.  I.  6f  P.  R. 
Co.,  19  Am.  &*  Etig.  R.  Cas.  180,  65  Iowa 
727. 

By  the  general  comity  which  obtains  be- 
tween the  states  of  the  Union,  corporations 
created  in  one  state  are  permitted  to  carry 
on  any  lawful  business  in  another,  and  to 
acquire,  hold,  and  transfer  property  there 
the  same  as  individuals.  Cowell  v.  Colorado 
Springs  Co.,  100  U.  S.  55. 

A  right  of  action  for  causing  the  death  of 
a  human  being  given  by  a  state  statute  may 
be  enforced  in  the  United  States  courts. 
Holmes  v.  Oregon  &*  C.  R.  Co.,  $  Fed.  Rep. 

IS- 

The  principles  of  comity  which  exist  be- 
tween the  federal  and  state  courts  will  not 
induce  a  federal  court  to  withhold  relief  in 
a  matter  affecting  interstate  commerce,  and 
leave  the  determination  of  the  validity  of  a 
state  statute  to  tiie  state  courts.  /  re 
Lattg/ord,  57  Fed.  Rep.  570,  4  Int.  Com. 
Rep.  437 


STATION  AGENTS. 
As  fellow-servants  with  other  employes,  see 

Fellow-servants,  413-416. 
Assaults  by,  see  Assaults,  7. 
Authority  of,  to  employ  physician,  see  Medi- 
cal Services,  11. 
Company's  liability  for  torts  of,  see  False 

Imprisonment,  5. 
Declarations  of,  as  evidence,  see  Animals, 

Injuries  to,  434. 
Liability  of,  as  garnishee,  see  Attachment, 

etc,  18. 
Service  of  notice  of  construction  of  street 

crossing  on,   see    Crossing  op   Streets 

AND  Highways,  71. 
process  on,  see  Process,  32. 

1.  Term  defined.  —  A  station  agent 
means  the  agent  locally  in  charge  of  the 
station  or  depot,  and  generally  it  is  not  at 
the  end  of  the  road,  but  at  some  interme- 
diate place,  although  there  may,  no  doubt, 
be  such  an  agent  at  the  terminus;  but  the 
name  cannot  apply  presumptively,  if  at  all, 
to  any  but  one  who  has  general  charge  at 
the  place  where  he  acts,ar.u  there  is  nothing 
in  the  name  "commercial  agent"  which 
necessarily  indicates  local  authority  or  func- 
tions. Detroit  v.  U'abash.  St.  L.  &*  P.  R. 
Co.,  63  Mich.  712,  30  TV.  W.  Rep.  y.}. 


A  written  instrument  signed  only  by  a 
company,  by  which,  in  consideration  of  a 
promise  by  the  owner  of  lands  to  convey  to 
it  a  right  of  way  through  lands,  the  com- 
pany binds  itself  (i)  to  pay  him  a  specified 
sum  of  money,  (2)  to  establish  a  station  or 
depot  at  or  near  a  named  road  crossing,  (3) 
to  fence  the  track  through  his  lands,  (4)  to 
locate  the  house  for  the  section  hands  at  or 
near  the  station,  and  (5)  to  appoint  him 
agent  for  said  station,  to  continue  him  as 
such  so  long  as  he  faithfully  discharges  the 
duties  of  the  agency,  and  to  pay  him 
salary  as  agent  of  $30  per  month,  shou 
the  business  of  the  station  justify  the  same, 
does  not,  of  itself,  constitute  him  an  agent 
of  the  company  at  said  station,  on  the  com- 
pletion of  the  road,  but  gives  him  an  abso- 
lute right  to  demand  the  appointment ;  nor 
does  it  fix  his  compensation  as  agent  at  $30 
per  month,  but  leaves  it  to  be  determined 
by  the  amount  of  business  done  at  the 
station,  as  computed  by  the  customary  per- 
centage on  receipts  ;  but  the  promise  of  the 
company  to  appoint  him  as  its  agent  is  sup- 
ported by  a  sufficient  consideration,  al- 
though the  e  is  no  promise  on  his  part  to 
accept  the  agency.  Evans  v.  Cincinnati,  S. 
&*  M.R.  Co.,  7^  Ala.  341. 

To  maintain  an  action  for  the  breach  of 
such  agreement,  the  plaintiff  must  aver  that 
he  made  application  for  the  agency  ;  and  to 
support  a  claim  for  compensation  at  thirty 
dollars  per  month,  he  must  aver  that  the 
business  of  the  station  justified  the  payment 
of  that  sum.  Evans v,  Cincinnati,  S.  &*  M. 
R.  Co.,  7%  Ala.  341. 

2.  Fiduciary  relation  with  com- 
pany."'— Plaintiff,  station  agent  of  a  com- 
pany, sued  it  to  recover  for  breach  of  an  al- 
leged contract  in  failing  to  furnish  a  train 
for  an  excursion.  The  company  supposed 
from  its  correspondence  with  plaintiff  that 
the  train  was  wanted  for  a  third  party,  and 
agreed  to  supply  it  on  certain  conditions; 
but  afterwards,  on  discovering  tliat  plaintiff 
was  attempting  to  procure  it  for  his  own 
benefit,  it  refused  to  furnish  the  train  at  all. 
Held,  that  plaintiff  could  not,  from  his  fidu- 
ciary relation  towards  the  company,  enter 
into  a  binding  contract  with  it  forsuch  pur- 
pose, unless  it  agreed  thereto  after  being 
fully  advised   of  all  the  circumstances  of 

*  Employment  of  station  agent  and  accepting 
services  implies  a  contract  to  compensate  him, 
see  24  Am.  &  Eng.  R.  Cas.  99,  abstr. 


IS 

m 

J.V'/ 


Ntl 


186 


STATION   AGENTS,  3. 


S 


the  case.  Pegram  v.  Charlotte,  C.  <S>»  A,  7\\ 
Co.,  6  Am.  &*  Ehi;.  A".  CVij.  470,  84  A^.  Car. 
696,  37  /f  w.  /iV/.  639. 

It  cannot  be  presumed,  in  the  absence  of 
evidence,  tliat  a  local  station  agent  along  the 
line  of  a  railway  company  has  any  general 
authority  to  contract  for  furnishing  cars  to 
shippers  at  other  stations  than  his  own. 
Missouri  Pac.  R.  Co.  v.  Stults,  15  Am.  &^ 
Eng.  R.  Cas.  97,  31  Kan.  752,  3  Pac.  Kep. 
522. 

3.  Power  to  bind  company  by  con- 
tracts for  transportation  *  —  (i)  In 
general.~^\\txt.  a  railroad  places  an  agent 
in  charge  of  its  business  at  a  station,  and 
empowers  him  to  contract  for  the  shipment 
of  produce  and  freight,  it  holds  him  out  as 
possessing  the  authority  to  contract  with 
reference  to  all  the  necessary  and  ordinary 
detailsof  the  business;  and  within  the  range 
of  such  business  he  is  a  general  agent. 
Wood  V.  Chicago,  M.  &>  St.  P.  R.  Co.,  24 
Am.  &*  Ettg.  R.  Cas.  91,  68  Iowa  491.  27  N. 
W.  Rep.  473.  —  Distinguished  in  Voor- 
heesv.  Chicago,  R.  I.  &  P.  R.  Co.,  29  Am. 
&  Eng.  R.  Cas.  322,  71  Iowa  735. 

Station  agents  are  presumed  to  have  au- 
thority to  make  contracts  for  the  transpor- 
tation of  freight,  and  in  the  absence  of  any 
adequate  notice  to  the  public  of  any  limita- 
tion upon  their  autiiority  in  that  respect  the 
railway  company  will  be  bound  thereby,  both 
as  to  the  rates  and  as  to  the  expedition  of 
transportation  and  delivery,  Easton  v. 
Dudley,  45  Am,  &-Eng.  R.  Cas.  340,  78  Tex. 
236,  14  S.  IV.  Rep.  583.— Disapproving 
Wood  V.  Chicago,  M.  &  St.  P.  R.  Co.,  59 
Iowa  196. 

When  the  company  seeks  to  avoid  liability 
on  the  ground  that  the  agent  had  not  au- 
thority to  make  the  contract,  it  must  show 
that  the  shipper  knew  that  the  agent  was 
exceeding  his  authority.  Gelvin  v.  Kansas 
City,  St.  J.  <S-  C.  B.  R.  Co.,  21  Mo.  App. 
273.— Quoting  Pruitt  v.  Hannibal  &  St.  J. 
R.  Co.,  62  Mo.  527;  Harrison  v.  Missouri 
Pac.  R.  Co.,  74  Mo.  364. 

In  such  case  the  question  whether  the 
shipper  had  notice  of  the  limitation  of  the 
agent's  authority  is  one  of  fact  for  the  jury, 
under  proper  instructions.    Gelvin  v.  Kan- 

*  Authority  of  railway  station  agents,  see  notes, 
45  Am.  &  Eng.  R.  Cas.  344  ;  21  /,/.  38. 

Liability  of  company  for  refusal  by  station 
agent  to  accept  goods  immediately  after  his  re- 
moval, whereby  they  are  carried  to  next  station 
and  lost,  see  42  Am.  &  Eno.  R.  Cas.  453,  abst>. 


sas  City,  St.  J.  &*  C.  B.  R,  Co.,  21  Mo.  App. 

■ill- 

A  depot  agent,  who  receives  and  forwards 
freight,  in  the  absence  of  special  instructions 
made  known  to  the  public,  can  bind  the 
company  to  receive  and  forward  merchan- 
dise, and  the  contract  maj'  be  made  before 
the  goods  are  actually  tendered  or  delivered. 
Watson  V.  Memphis  **  C.  R.  Co.,  9  Heisk. 
{Tenn.)  255,  19  Am.  Ry.  Rep.  256.— Ap- 
proving Deming  v.  Grand  Trunk  R.  Co., 
48  N,  H.  455,  2  Am.  Rep.  267. 

Station  agents  are  presumed  to  have 
power  to  make  contracts  for  their  railroads 
for  the  transportation  of  freight.  The  limi- 
tations on  their  powers  the  public  cannot 
take  notice  of,  unless  they  are  conveved  to 
the  public  in  such  a  manner  as  to  p  horize 
the  inference  that  shippers  are  apprised  of 
them.  Pruitt  v.  Hannibal  &^  St.  /.  R.  Co., 
62  Mo.  527.— Quoted  in  Gelvin  v.  Kansas 
City,  St.  J.  &  C.  B.  R.  Co.,  21  Mo.  App. 

273- 

The  law  will  regard  station  agents  as  fully 
authorized  to  make  contracts  for  future 
transportation  of  property,  and  there  is  no 
necessity  for  a  shipper  to  prove  that  he 
was  so  authorized.  Wood  v.  Chicago,  M.  <S>-» 
St.  P.  R.  Co.,6Am.  <S-  Etig.  R.  Cas.  314,  59 
Iowa  196,  13  A'^  W.  Rep.  99. 

A  ticket  agent  cannot  bind  the  company 
by  his  statement  to  a  person  purchasing  a 
ticket  for  a  certain  train  to  a  certain  station, 
that  such  train  will  stop  at  such  station, 
where  the  same  is  not  a  regular  stopping 
place  for  such  train.  Pittsburgh,  C.  &•  St. 
L.  R.  Co.  v.  Nuzum,  60  Ind.  533.— Follow- 
ing Ohio  &  M.  R.  Co.  V.  Hatton,  60  Ind.  12, 

(2)  Contracts  to  carry  beyond  company's 
road.— Pi.  contract  made  by  a  station  agent 
for  a  shipment  beyond  his  company's  line 
is  not  binding  on  the  company,  unless  it  has 
held  itself  out  as  a  carrier  to  such  place,  or 
the  agent  has  been  expressly  authorized  to 
make  the  contract,  or  there  has  been  such 
previous  dealings  from  which  such  authority 
may  be  reasonably  inferred.  Grover  &»  B. 
Sewing  Mach.  Co.  v.  Missouri  Pac.  R.  Co., 
yo  Mo.  672,  35  Am.  Rep.  444.— Reviewing 
Burroughs  v.  Norwich  &  W.  R.  Co.,  too 
Mass.  26.  —  Approved  in  Baker  v.  Kansas 
City,  St.  J.  &  C.  B,  R.  Co.,  21  Am.  &  Eng. 
R.  Cas.  61,91  Mo.  152.  Distinguished  in 
St.  Louis  &  S.  F.  R.  Co.  v.  Ryan,  56  Ark. 
245.  Followed  in  Turner  v.  St.  Louis  & 
S.  F.  R.  Co.,  20  Mo.  App.  632. — Patterson 
V.  Kansas  City,  Ft.  S.  <^ M.  R.  Co,  47  Mo, 


STATION   AGENTS,  4,  6. 


187 


App.  570.  Turner  v.  St.  Louis  &*  S.  F.  R. 
Co.,  20  Mo.  App.  632.— Following  Grover 
&  B.  Sewing  Mach.  Co.  v.  Missouri  Pac.  R. 
Co.,  70  Mo.  672. 

Although  a  station  agent  has  no  authority 
to  contract  for  transportation  beyond  the 
terminus  of  the  line,  yet  when  the  company 
has  made  other  similar  contracts,  being 
represented  Dy  the  same  agent,  which  con- 
tracts have  been  recognized  and  carried  oi't 
by  it,  this  is  a  "course  of  dealing  between 
plaintiff  and  defendant's  agent,  from  which 
the  authority  of  the  agent  to  make  the  con- 
tract might  be  inferred."  White  v.  Mis- 
sour i Pac.  R.  Co.,  19  Mo.  App.  400. 

The  authority  of  the  agent  to  contract  to 
carry  freight  beyond  the  company's  line 
must  either  be  shown  specially  or  be  implied 
from  former  conduct  or  course  of  dealing. 
Turner  v.  St.  Louis  6-  S.  F,  R.  Co.,  20  Mo. 
App.  632. 

4. by  bill  of  lading-.— A  fre'V,ht 

agent  signed  a  bill  of  lading  for  thirty-two 
bales  of  cotton,  which  were  never  delivered 
to  the  company,  or  any  agent.  A  di.ift 
with  the  bill  of  lading  attached,  for  the 
price,  was  forwarded  to  plaintiffs  and  paid 
by  them.  Held,  in  an  action  against  the 
company  for  a  non-delivery,  that  it  was  not 
estopped  from  showing  that  the  cotton  was 
never  delivered,  and  that  the  agent  had  no 
authority  to  sign  the  bill  of  lading  until  the 
cotton  was  actually  delivered.  Robinson  v. 
Memphis  &^  C.  R.  Co. ,  9  Fed.  Rep.  1 29. 
—Applying  Farmers'  &  M.  Nat.  Bank  v. 
Erie  R.  Co.,  72  N.  Y.  188. 

One  of  the  defendant's  local  freight 
agents,  having  authority  to  receive  and 
forward  freight,  and  to  give  bills  of  lading 
specifying  the  terms  of  shipment,  but  hav- 
ing no  right  to  issue  such  bill  except  upon 
actual  receipt  of  the  property  for  trans- 
portation, issued  bills  of  lading  purporting 
to  be  for  sixty-five  barrels  of  beans  to  one 
W.,  describing  them  to  be  as  received,  to 
be  forwarded  to  C.  as  consignee,  but  add- 
ing, with  reference  to  the  packages,  "con- 
tents unknown,"  W.  drew  a  draft  on  the 
consignee,  which  plaintiff  discounted  on 
the  faith  of  and  on  transfer  of  the  bills  of 
lading.  No  barrels  of  beans  were  in  fact 
shipped  by  W.  or  delivered  to  defendant, 
but  the  bills  were  issued  in  pursuance  of  a 
conspiracy  between  the  agent  and  W.  to 
defraud.  Payment  of  the  draft  was  re- 
fused. In  an  action  upon  the  bills  of  lading 
-  Md;  (I)  that  as  the  company  had  rlothod 


the  agent  with  power  to  issue  bills  of  lading 
it  was  estopped  from  denying  their  exist- 
ence, and  was  liable  to  plaintiff;  (2)  that  the 
recital  in  the  bills  that  the  contents  of  the 
packages  were  unknown  was  no  defense. 
Bani-  of  Bataviav.  New  York,  L.  E.  &»  W. 
R.  Co.,  32  Am.  (S-  Eng.  R.  Cas.  497,  106  A'. 
Y.  195,  8  A^.  Y.  S.  R.  209,  7  Cent.  Rep.  822, 
12  N.E.  Rep.  433 ;  affirming  33  Hun  589.— 
Distinguished  in  Manhattan  L.  Ins.  Co. 
V.  Forty-second  St.  &  G.  S.  F.  R.  Co.,  46 
N.  Y.  S.  R.  130.  Not  followed  in  Na- 
tional Bank  v.  Chicago,  B.  &  N.  R.  Co.,  44 
Minn.  224. 

A  freight  agent,  and  a  partner  in  a  firm, 
caused  printed  receipts  or  shipping  notes  in 
the  form  commonly  used  by  the  company 
to  be  signed  by  his  name  as  the  company's 
agent,  in  favor  of  the  firm,  for  flour  which 
had  never  in  fact  been  delivered  to  the 
railway  company.  The  receipts  acknowl- 
edged that  the  company  had  received  the 
flour  addressed  to  appellants,  and  were  at- 
tached to  drafts  drawn  by  the  firm,  and 
accepted  by  appellants.  The  agent  received 
the  proceeds  of  the  drafts  and  absconded. 
Held,  in  an  action  to  recover  the  amount  of 
the  drafts  that  the  act  of  the  agent  in  is- 
suing a  false  and  fraudulc  it  receipt  for 
goods  never  delivered  to  the  company  was 
not  an  act  done  within  the  scope  of  his 
authority  as  the  company's  agent,  and  the 
latter  were  therefore  not  liable.  (Fournier 
and  Henry,  J.J.,  dissenting.)  Erb  v.  Great 
Western  R.  Co.,  5  Can.  Sup.  Ct.  179. 

6. by  ag:reeinent  to  furnish  cars. 

—It  is  within  the  authority  of  a  freight  agent 
to  assure  a  shipper  of  live  stock  that  there 
will  be  no  delay  in  unloading,  thereby  in- 
ducing him  to  make  a  shipment  at  a  certain 
time.  Lake  Erie  &•  W.  R.  Co.  v.  Rosen- 
berg, 31  ///.  App.  47. 

The  question  whether  a  station  agent  has, 
as  such,  authority  to  bind  the  company  by 
a  contract  to  furnish  cars  to  a  shipper  at  his 
station  at  a  particular  time  is  one  of  fact, 
and  not  of  law.  (Beck,  J.,  dissenting.) 
Woodv.  Chicago,  M.  <&*  St.  P.  R.  Co.,  6  Am. 
&*  Eng.  R.  Cas.  314.  59  f<"t>a  196,  13  A^.  W. 
Rep.  99.— Disapproved  in  Easton  v.  Dud- 
ley, 78  Tex.  236.  Overruled  in  Wood  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  68  Iowa  491. 

A  freight  agent  having  power  to  contract 
for  the  carriage  of  freight  agreed  with  a 
party  to  furnish  cars  at  a  given  point  on  a 
certain  day.  He  then  telegraphed  to  head- 
quarters for  the  cars  which  were  not  fur- 


188 


STATION   AGENTS,  US. 


niihcd.  In  a  suu  for  breach  of  contract — 
/if/d,  that  there  was  nothing  in  the  above 
evidence  to  show  that  the  agent  had  power 
to  contract  to  furnish  special  cars,  or  that 
he  was  held  out  to  the  public  by  the  rail- 
road company  as  having  such  power.  U'ooii 
V.  Chicago,  M.  6-  St.  P.  A\  Co.  (Io7va),  21 
Am.  &*  Eng.  R.  Cas.  36,  24  N.  W,  Rep.  46. 

Where  a  company  authorizes  a  station 
agent  to  contract  for  the  transportation  of 
perishable  property  at  a  given  rate,  such 
authority,  unless  restricted  by  some  rule  or 
instruction  of  the  company,  carries  with  it 
the  power  to  bind  the  company  by  an  agree- 
ment to  furnish  cars  for  such  transportation 
on  a  specified  day.  Wood  v.  Chicago,  M. 
&-S/.  P.  R.  Co.,  24  Aw.  5-  E/ig.  R.  Cas. 
91,  68  /owa  491,  27  JV,  \V.  Rep.  473. 

And  the  company  cannot  avoid  liability 
on  a  contract  made  by  such  agent  within 
the  apparent  scope  of  his  authority,  by 
showing  that  the  agent  acted  in  violation 
of  instructions  of  which  the  shipper  had  no 
notice.  IVood  v.  Chicago,  M.  &r*  St.  P.  R. 
Co.,  24  Afn.  <S^  Eftg.  R.  Cas.  91, 68  Iowa  491, 
27  A^.  IV.  Rep.  473. 

A  local  station  agent  has  no  authority 
generally  to  contract  to  furnish  cars  to 
shippers  at  stations  other  than  that  at  which 
he  is  stationed.  Missouri  Pac.  R.  Co.  v. 
Stt'u's,  1 5  Am.  &»  Ettg.  R.  Cas.  97,  31  Kan. 
752,  3  Pac.  Rep.  522.  Voorhees  v.  Chicago, 
R.  I.  6-  P.  R.  Co.,  29  Am.  <S-  Eng.  R.  Cas. 
322,  71  Iowa  735,  30  A'.  W,  Rep.  29.— Dis- 
tinguishing Wood  V.  Chicago,  M.  &  St. 
P.  R.  Co.,  68  Iowa  491. 

A  contract  by  a  station  agent  to  furnish 
a  certain  number  of  cars  on  a  certain  day, 
and  to  ship  cattle,  is  within  the  scope  of  his 
apparent  authority,  and  is  binding  on  the 
company,  unless  the  shipper  has  actual 
knowledge  that  the  agent  does  not  have  the 
autiiority.  Harrison  v.  Nfissouri  Pac.  R. 
Co.,  7  Am.  &^  Eng.  R  Cas.  382,  74  Mo.  364, 
41  Am.  Rep.  318.— Quoted  in  Gelvin  v. 
Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  21  Mo. 
App.  273- 

A  contract  by  a  railway  station  agent 
with  a  shipper  for  a  given  number  of  stock 
cars  at  a  stated  time  and  place  binds  the 
,  corporation.  Easton  v.  Dudley,  45  Afn.  &» 
Eng.  R.  Cas.  340,  78  Tex.  236,  14  S.  IV.  Rep. 
583.  McCarty  v.  Gulf,  C.  &-  S.  F.  R.  Co., 
79  Tex.  33,  i$S.  W.  Rep.  164. 

Especially  where  it  also  appears  that  the 
shipper  to  whom  the  cars  were  to  be  fur- 
nished  did  not  know  of  the  lack  of  author- 


ity of  the  agent  so  to  contract.  Cross  v. 
Graves,  4  Tex,  App,  (Civ.  Cas.)  149,  16  5. 
IV.  Rep.  102. 

And  it  is  not  necessary  for  the  shipper,  in 
a  suit  against  the  company  for  damages  re- 
sulting from  a  failure  so  to  furnish  the  cars, 
to  allege  and  prove  that  such  station  master 
has  authority  to  make  such  verbal  agree- 
ment. Gulf,  C.  &-  .S.  F.  R.  Co.  V.  Wright, 
I  Tex.  Civ.  App.  402,  21  .S'.  W.  Rep.  80. 

O.  by  contract   for  repairs  of 

cars. — Though  a  station  agent  is  a  special 
agent,  he  is  presumed  to  have  authority  suf- 
ficient to  enable  him  to  attend  to  the  safe 
loading  of  freight  at  his  station,  and,  there- 
fore, to  contract  on  the  part  of  the  company 
for  repairs  on  cars  which  are  essential  to 
the  safe  loading  of  suoh  freight.  Rosen- 
thal v.  St.  Louis,  I.  M.  ^'S.  R.  Co.,  40  Mo. 
App.  579.  • 

7.  By  contract  for  board  of  in- 
jured employe.— The  general  agent  of  a 
railroad  company  is  authorized,  by  virtue  of 
his  position  as  general  manager  of  the  com- 
pany's affairs,  to  employ  a  hotel  keeper  to 
furnish  board  and  attendance,  at  the  ex- 
pense of  the  company,  to  a  brakeman  in- 
jured while  working  for  such  company.  A 
mere  station  agent  of  a  railroad  company, 
by  virtue  of  his  position  as  such  agent,  has 
not  the  like  authority.  Atlantic  &*  P.  R. 
Co.  v.  Reisner,  18  Kan.  458,  16  Am.  Ry.  Rep. 
36.— DiSTiNOUiSHED  IN  Union  Pac.  R.  Co. 
V.  Beatty,  26  Am.  &  Eng.  R.  Cas.  84,  35 
Kan.  265.  Quoted  in  Terre  Haute  &  I.  R. 
Co.  V.  McMurray,  98  Ind.  358.  Reviewed 
IN  Louisville,  E.  &  St.  L.  R.  Co.  v.  McVay, 
98  Ind.  391. 

8.  Autiiority  to  employ  detectives 
and  to  make  arrests.— Miss.  Act  of  Feb. 
22, 1890,  constituting  depot  agents  conserva- 
tors of  the  peace,  with  authority  to  preserve 
order  in  waiting  rooms,  and  power  to  make 
arrests,  does  not  make  them  officers  of  ti^e 
state,  but  merely  enlarj  s  and  defines  their 
duties  as  agents  of  the  railroad  companies. 
Kittg  v.  Illinois  C.  R.  Ctf.,69  Miss.  245,  10 
So.  Rep.  42. 

For  the  proper  and  lawful  exercise  of  this 
authority  railroad  companies  are  responsi- 
ble, and  if  a  depot  agent  arrests  one  not 
guilty  of  disorderly  conduct  or  otherwise  lia- 
ble to  arrest  under  said  statute,  the  company 
is  liable  for  the  false  imprisonment,  although 
the  agent  had  no  express  instructions  from 
it  to  make  arrests,  and  supposed  he  was 
acting  as  an  officer  of  the  state.    King  v. 


4 


STATION   AGENTS,  J)-ll. 


189 


Illinois  C.  R.  Co.,  6g  Miss.  245,  10  So.  Rep. 
42. 

There  is  no  presumption  that  a  station 
apjenthas  a  right  to  employ,  in  tiie  name  of 
the  company,  detectives  to  ferret  out  rob- 
beries. Accordingly,  in  an  action  by  a  de- 
tective to  recover  for  services  rendered  at 
the  instance  of  a  station  agent,  proof  of  the 
contract  with  the  agent  to  charge  the  com- 
pany cannot  be  admitted  until  it  first  appears 
tiiat  the  agent  had  authority  to  make  such 
contracts.  Schlapbach  v.  Ric/imond  ir'  D. 
R.  Co.,  53  Am.  (S^  Enir,  R.  Cas  42,  35  So. 
Car.  517,  15  S.  E.  Rep.  241.  — Arpi.viNO 
Piedmont  Mfg.  Co.  v.  Columbia  &  G.  R. 
Co.,  19  So.  Car.  373;  Waldrop  v.  Green- 
wood, L.  &  S.  R.  Co.,  28  So.  Car.  159. 

9.  Liability  for  tort.»*  or  iie{;rIig:eii(>o 
of. — Where  a  person  enters  a  stati(jn  not 
for  the  purpose  of  taking  passage  on  the 
road,  but  to  wait  for  a  train  on  another 
road,  the  station  agent  may  remove  him  ; 
but  in  doing  so  he  acts  in  the  course  of  his 
employment,  and  the  company  is  liable  if 
he  uses  unnecessary  force.  Johnson  v. 
Chicago,  R.  I.  «V  P.  R.  Co.,  8  Am.  &• 
Eng.  R.  Cas.  206,  58  Iowa  348,  12  N.  W. 
Rep.  329. 

A  station  in  a  certain  town  was  in  a  cut. 
The  track  ran  alongside  a  freight  platform 
also  in  the  cut.  The  station  agent  directed 
a  party  with  a  loaded  wagon  of  goods  to  be 
delivered  to  the  company  as  freight  to  drive 
up  to  the  platform,  partly  on  the  track. 
While  so  doing  he  was  run  over  and  injured 
by  a  car  which  the  agent  had  previously  di- 
rected to  be  moved  upon  the  track.  Heid. 
that  the  company  was  liable.  Foss  v.  Chi- 
cago, M.  &*  St.  r.  R.  Co.,  19  Am  &*  Eng. 
R.  Cas.   112,33  Minn.y)2,  23  N.  VV.  Rep. 

553- 

10.   frauds.  —  If  a  station   agent 

fraudulently  issues  a  bill  of  lading  foi  goods 
not  placed  in  his  possession,  and  delivers  it 
to  a  person  acting  in  collusion  with  him,  the 
company  is  not  liable  to  an  innocent  in- 
dorsee who  acquires  the  bill  of  lading  for 
value  and  without  notice.  Friedlander  v. 
Texas  5^  P.  R.  Co.,:^  Am.&^  Eng  R.  Cas. 
70,  130  U.  S.  416.  9  Sup.  Ct.  Rep.  570.— 
Distinguished  in  Walters  v.  Western  & 
A.  R.  Co.,  56  Fed.  Rep.  369;  St.  Louis  & 
S.  F.  R.  Co.  V.  Ryan,  56  Ark.  245. 

A  railroad  company  is  not  liable  where 
its  agent  fraudulently  receipts  for  goods  to 
be  shipped,  when  in  fact  no  goods  are  ever 
received,  though  the  purchaser  has  paid  for 


them  on  the  faith  of  such  receipt.  It  is  not 
within  the  scope  of  the  agent's  authority 
to  give  such  fraudulent  receipt.  Oliver  v. 
Great  Western  R.  Co.,  28  U.  C.  C.  P.  143. 
—Distinguishing  Royal  Canadian  Bank 
V.  Grand  Trunk  R.  Co..  23  U.  C.  C.  P.  225. 
—Reviewed  in  Erb  v.  Gieat  Western  R. 
Co.,  3  Out.  .\pp.  446. 

11.  Bond  uikI  liability  of  sureties. 
— Where  a  railroad  company  sues  the  sure- 
ties of  a  bond  given  by  one  of  its  depot 
agents,  to  recover  for  moneys  received  and 
not  accounted  for  by  the  agent,  it  is  not 
competent  to  put  in  evidence  printed  in- 
structions given  by  the  rompany  to  such 
agents,  requiring  them  to  make  monthly 
reports,  in  the  absence  of  anything  to  show 
that  the  default  is  shown  by  such  monthly 
reports  or  that  the  agent  violated  his  duty 
iii  failing  to  make  such  reports.  Memphis 
&*  C.  R.  Co.  v.  Maples,  63  Ala.  601. 

The  appointment  of  a  station  agent  was 
experimental,  but  the  experiment  proved 
satisfactory,  and  there  was  no  revocation 
and  no  reappointment.  His  bond  provided 
for  the  faithful  discharge  of  his  duties 
"  during  the  time  he  holds  the  said  apjioini- 
ment,  and  until  he  is  relieved  therefrom." 
Held,  that  his  sureties  were  bound  to  an- 
swer for  any  default  during  the  time  he  was 
agent.  Mobile  &*  M.  R.  Co,  v.  Brewer,  76 
Ala.  135. 

Where  the  agent  of  a  railroad  company, 
who  receives  funds,  has  given  bond  and 
security  to  pay  over  and  account  for  such 
funds,  the  sureties  will  not  be  bound  for 
funds  that  come  into  the  agent's  hands  after 
a  want  of  integrity  on  his  part  is  discovered 
by  the  company,  but  the  sureties  may  be 
bound  so  long  as  there  is  nothing  to  show 
more  than  a  want  of  diligence  or  punctu- 
ality. Charlotte,  C.  &*  A.  R.  Co.  v.  Gotv,  59 
Ga.  685. 

Any  substantial  change  in  the  duties  or 
liabilities  of  a  ticket  agent,  after  he  has 
given  bond  and  secirity,  without  the  sure- 
ty's consent,  would  discharge  him  from 
liability;  but  where  the  conditions  of  ti)e 
bond  are  that  the  agent  will  "  faithfully 
perform  all  the  duties  of  the  said  office  or 
pla^e  which  are  or  may  be  imposed  upon 
him  under  this  or  any  future  appointment," 
additional  railroad  connections,  which  im- 
pose additional  duties  on  the  agent, will  not 
affect  the  surety's  liability  on  the  bond. 
Eastern  R.  Co.  v.  Loring,  26  Am.  &*  Eng. 
R,  Cas.  92,  138  Mass.  381.— Distinguish- 


m 


STATION   AGENTS,  11. 


^■1 


ING  Grocer's  Bank  v.  Kingman,   16  Gray 
(Mass.)  473. 

A  bond  recited  that  the  principal  obligor 
had  been  appointed  ticket  and  freight 
agent,  at  Ellicott's  Mills,  and  was  condi- 
tioned for  the  faithful  performance  of  the 
duties  of  said  office  so  long  as  he  should 
hold  the  same.  At  the  date  and  delivery  of 
the  bond,  Ellicott's  Mills  was  a  second-class 
station,  but  the  company  subsequently  made 
it  a  first-class  station.  At  first-class  stations 
a  greater  amount  of  freigiit  is  paid  tlian  at 
second-class  stations,  but  the  duties  uf  the 
ticket  and  freight  agent  are  tlie  same  at 
both.  NM,  that  the  change  in  the  regula- 
tions of  the  company,  by  which  this  was 
made  a  first-class  station,  did  not  discharge 
the  sureties  on  the  bond.  '  Strawbtiti^e  \\ 
Baltimore  &*  O.  li,  Co.,  14  Md.  360. 

In  an  action  by  a  railroad  company  against 
the  sureties  on  the  bond  of  a  station  agent, 
who  was  in  arrears  to  the  company  when 
the  bond  was  executed,  and  continued  to 
make  additional  defaults  in  several  subse- 
quent monthly  settlements,  the  presiding 
judge  committed  no  error  in  charging  the 
jury  that  "  if  the  plaintifTs  knew  when  the 
bond  was  given  that  [their  agent]  was  in  de- 
fault and  indebted  to  them  in  his  pre-exist- 
ing agency,  and  yet  concealed  this  fact  and 
held  him  out  to  [the  sureties]  as  trust- 
worthy, either  expressly  or  impliedly,  such 
conduct  would  be  a  fraud  upon  the  sureties, 
and  would  make  void  the  bond  as  to  them." 
Wiltnington,  C.  &•  A.  R.  Co,  v.  Ling,  16 
Am.  &^  Eti^.  Ji.  Cas,  539,  18  So.  Car.  116. 

But  in  charging  further  that  "  each  de- 
fault of  [the  agent],  after  the  bond  was 
given,  in  failing  to  pay  over  to  the  company 
the  money  collected  by  him  as  their  agent, 
was  a  breach  of  his  duty  and  obligation, 
and  gave  the  plaintiffs  the  right  to  dismiss 
him ;"  that  "  if  knowing  of  these  defaults, 
the  plaintifis  condoned  his  fault  and  con- 
tinued him  in  his  agency  without  notice  to 
his  sureties  of  his  misconduct,  such  conduct 
would  be  prejudicial  to  the  interest  of  the 
sureties,  and  would  discharge  them,"  the 
judge  erred  in  failing  to  limit  the  discharge 
to  defaults  occurring  after  the  first,  li'^il- 
mitigton,  C.  &-  A.  li.  Co.  v.Li/ijf,  16  Am.  &> 
Eng.  A\  Cas.  539,  i8  So.  Car.  1 16. 

The  judge  erred  in  refusing  to  charge  the 
jury  that,  as  matter  of  law,  it  was  "  no  fraud 
upon  the  sureties  to  the  bond  in  suit  that 
the  principal  was  behind  in  his  accounts  at 
the  time  the  bond  was  given,  and  no  notice 


was  given  to  the  sureties."  Wilmington, 
C.  &*  A.  R.  Co.  v.  Ling,  16  Am,  &*  Eng.  A\ 
Cas.  539,  18  So.  Car,  116. 

He  also  erred  in  refusing  to  charge  that 
"the  plaintifTs  were  not  bound  to  notify  the 
sureties  of  each  or  any  default  of  the  prin- 
cipal agent,"  and  that  "  the  sureties  were 
not  discharged  by  failure  on  their  part  to  do 
so."  Wilmington,  C.  &*  A.  A'.  Co.  v.  Ling, 
16  Am.  &•  Eng,  A'.  Cas.  539,  18  So.  Car.  116. 

Defendant  was  a  station  master,  hav- 
ing under  him  a  collector  and  cashier, 
whose  duties  were  to  collect  all  moneys  due 
the  company,  keep  regular  accounts,  and 
make  statement  of  the  business  at  fixed 
times  to  the  company's  principal  office,  and 
such  accounts  were  kept  and  statements 
made,  and  balances  were  permitted  to  run 
up  against  the  station  without  notice  to 
defendant.  NM,  that  he,  and  the  sureties 
on  his  oflicial  bond,  were  not  liable  for  such 
balances,  there  being  nothing  to  connect 
him  with  the  defalcation  or  neglect.  Louis- 
ville  «S-  N.  A'.  Co.  v.  Blair,  \  Tenn.  Ch.  351. 

A  rule  of  a  railroad  required  agents  to 
settle  monthly,  and  it  was  expected,  though 
there  was  no  rule  on  the  subject,  that  they 
would  transact  all  business  on  a  cash  basis. 
A  local  agent  let  out  freights  on  a  credit, 
which  was  known  by  the  president,  who 
remonstriited  with  him  for  doing  so,  and  a 
deficit  was  carried  for  eighteen  months. 
There  was  no  fraudulent  concealment  of 
the  facts,  but  the  agent's  sureties  were  not 
informed.  Held:  (i)  that  the  sureties  were 
not  released  from  liability  because  the  offi- 
cers of  the  company  knew  that  the  agent 
gave  credit,  and  if  there  had  been  a  rule  that 
freight  would  be  paid  for  in  cash,  and  the 
rule  had  been  changed  after  the  agent  gave 
bond,  the  change  would  not  have  released 
the  sureties ;  (2)  that  the  failure  to  inform 
the  sureties  of  the  facts  did  not  release 
them.  Richmond  <S^  P.  R.  Co.  v.  Kasey,  30 
Gratt.  (  Fa.)  218.— Quoting  Albany  Dutch 
Church  V.  Vedder,  14  Wend.  (N.  Y.)  165  ; 
Monroe  County  Sup'rs  v,  Otis,  62  N.  Y.  88. 
Reviewing  People  v.  Jansen,  7  Johns.  (N. 
Y.)332  ;  Phillips 7/.  Foxall,  L.  R.  7  O.  B.666. 

In  an  action  of  aebt  on  a  bond  given  by  a 
station  Jigent,  conditioned  for  the  faithful 
performance  of  his  duties,  and  that  the 
sureties  should  make  ('ue  and  sufficient 
recompense  to  the  company  for  any  loss  or 
damage  occasioned  by  the  agent,  the  agent 
may  plead  as  a  set-off  any  claim  that  he 
has  against  the  company  for  services  ren- 


1 


STATION  GROUNDS— STATIONS  AND  DEPOTS. 


191 


r.  A\ 


dered.  Baltimore  &*  O.  R.  Co.  v.  Jameson, 
13  W.  Va.  833.~Reviewed  in  Baltimore 
&  O.  R.  Co.  V.  Bitner,  15  W.  Va.  455. 

Could  the  defendant  in  such  suit,  with  or 
without  notice  of  his  claim,  under  a  plea  of 
conditions  performed,  prove  such  service 
by  way  of  recoupment?  BaUimore  &*  0. 
B.  Co.  V.  Jameson,  13  IV.  Va.  833. 


STATION  GROUNDS. 

Defect!  in  premises,  liability  of  carrier  for, 
see  Carriaub  ok  Passengers,  273. 

Duty  to  build  cattle-guards  at,  see  Cattle- 
guards,  10. 

fence  at,  see  Fences,  58,  50. 

Liability  for  injuries  caused  by  negligence  at, 
see  Stations  and  Depots,  89-1  Ol. 

When  exempt  from  taxes,  see  Taxation, 
160. 

'-  fences  required  at,  see  Fences,  58,  30. 

Who  deemed  trespassers  in,  see  Trespassers, 
Injuries  to,  O. 


STATION  GUARDS. 

Injuries  to  animals  at,  see  Animals,  Injuries 
TO,  190-202. 


STATIONS  AND  DEPOTS. 

Abandonment  of,  see  Abandonment,  5. 

Agreements  by  agents  to  locate,  see  Agency, 
47. 

Announcement  of,  see  Carriage  of  Passkn> 
GERS,  230,231. 

Bonus  to  company  to  secure,  see  Municipal 
AND  Local  Aid,  269. 

Care  demanded  from  carrier  of  passengers  at, 
see  Carriage  of  Passengers,  205-285. 

Carrying  beyond,  as  an  element  of  damages, 
see  Carriage  of  Passengers,  024. 

Compelling  construction  of,  see  Mandamus, 
11. 

Conditions  in  subscription  as  to  construction 
of,  see  Subscriptions  to  Stock,  210- 
219. 

place  of  building,  see  Munici- 
pal AND  Local  Aid,  237. 

Construction  of  statutes  relative  to,  see 
Municipal  and  Local  Aid,  09. 

Contracts  to  locate  at  particular  place,  valid- 
ity of,  see  Contracts,  59,  00. 

Contributory  negligence  of  passenger  at,  af- 
ter alighting  from  train,  see  Death  by 
Wrongful  Act,  180,  190. 

Covenant  to  maintain,  when  runs  with  the 
land,  see  Covenants,  5. 


Crossing  of  railways  at,  see  Crossing  of 
Railkoads,  78. 

Deduction  of  benefits  for  proximity  of,  see 
Elevateij  Railways,  107. 

Dower  in  lands  purchased  for,  see  Dower,  1 . 

Duty  to  fence  track  at,  see  Animals,  Injuries 
TO,  107. 

furnish  freight  facilities  at,  see  Inter- 
state Commerck,  lOO. 

—  —  permit  building  of  elevators  at,  see 
Elevators,  3. 

run  between  designated,  under  work- 

ing  agreements,  see  Leases,  etc.,  133. 

stop  for  passengers  at  places  other 

than,  see  Carriage  ok  Passengers,  245. 

stop  trains  at,  see  Carriage  of  Passen- 
gers, 214-210. 

Enforcement  of  contract  to  build,  see  Specific 
Performance,  12. 

Erection  of,  when  a  "taking"  of  land,  see 
Eminent  Domain,  100. 

where  railways  intersect,  see  Crossing 

of  Railroads,  78. 

Evidence  of  contemplated,  see  Eminent  Do- 
main, 039. 

Excessive  damages  to  passenger  put  off  at 
or  near,  see  Ejection  of  Passengers, 
131,  132. 

Expulsion  of  passengers  at,  see  Ejection  of 
Passengers,  05,  OO. 

places  remote  from,  see  Ejection 

OF  Passengers,  07. 

^brightening  teams  at,  see  Frightened 
Teams,  4. 

Getting  off  before  train  has  reached,  con- 
tributory negligence,  see  Carriage  of 
Passengers,  425. 

train  at  or  near,  see  Carriage  of  Pas- 
sengers, 441-450. 

which  stops  short  of,  contributory 

negligence,  see  Carriage  op  Passengers, 
410,411. 

Giving  hackmen  exclusive  privileges  at,  see 
Discrimination,  30. 

Goods  burned  in,  awaiting  shipment,  see 
Bills  of  Lading,  75. 

Injuries  to  children  at,  see  Children,  Inju- 
ries TO,  23. 

employes  caused  by  defects  in,  see  Em- 
ployes, Injuries  to,  481. 

Lands  used  for,  when  maybe  condemned,  see 
Eminent  Domain,  1 19. 

Liability  of  carrier  when  passenger  is  put 
off  beyond,  see  Carriage  of  Passengers, 
203. 

where  train  falls  short  at,  or  over- 
shoots, see  Carriage  of  Passengers, 
200,  204. 

company  for  false  imprisonment  at,  see 

False  Imprisonment,  8. 


m 


i 


i\ 


m 

i! 

Hi 

kl\ 


m 


STATIONS  AND   DEPOTS,  1-3. 


Measure  of  damages  for  failure  to  build,  see 
Damages,  rtJI. 

Municipal  subscription  conditioned  on  loca* 
tion  of,  see  Municipa;.  and  Local  Aid, 
237. 

Named  in  ticket,  duty  to  carry  passenger  to, 
see  Cakriaiie  <>k  I'Assr.NdivRs,  22((. 

Notice  to  employe  of  defects  in,  see  ICMri.ov£s, 
Inji'kiks  10,  221>. 

Posting  notices  at,  limiting  liability  for  bag- 
gage, see  liAdCACK,  loo. 

Power  of  city  to  grant  lands  for  purposes  of, 

SCeSTREKTS  AM)  UnillWAYS,  80. 

Privileges  and  regulation  of  hackmen  at,  see 
Hacks  AM)  Hack.  Lines. 

Prosecution  fur  failure  to  stop  at,  see  Crimn 
NAi,  Law,  22. 

Recently  established,  stopping  at,  see  Car- 
riage of  Passkngers,  228. 

Regulating  stopping  of  trains  at,  sr'e  Car- 
riage i)K  Passengers,  83. 

Regulation  of,  by  commissioners,  see  Rail- 
way Commissionkrs,  18. 

Right  to  move  or  abandon,  see  Street  Rail- 
ways, 127. 

Specific  performance  of  contracts  to  build 
and  maintain,  see  Specikic  Ferformance, 
12. 

Stipulation  to  erect,  see  Eminent  Domain, 
21U. 

Subscription  conditioned  on  construction  of, 
see  Subscriptions  to  ijiocK,  V. 

Taking  land  for,  when  for  a  public  use,  see 
Eminent  Domain,  1 80. 

To  which  fare  has  been  collected,  duty  to 
carry  passenger  to,  sec  Cauriage  of  Pas- 
sengers, 227. 

Validity  of  contracts  to    locate,    see    Co 
tracts,  59,  CO. 

What  land  necessary  for,  when  question  for 
jury,  see  Animals,  Injuries  to,  |>52. 

When  deemed  fixtures,  sep  Fixtures,  O. 

—  subject  to  mechanic's  lien,  see  Liens,  25. 
See  also  Union  Depot  Companies. 

I.  SEFIHITIONS;INT£aPB£TATIONOF 

W0ED8 192 

U,  EBIABUSHHENT ;  LOCATIOK 194 

1.  Power  to  Locate 194 

2.  Duty  to  Locate 197 

3.  As  Affected  by  Contract 201 

m.  ABARSONMENT  AITO  BELOCATION.  204 

1.  In  General 204 

2,  Statutory  Provisions 205 

IV.  RITIES  OF  COMPANY 207 

y.  INJVBIEB     CAUSED     BT    NEOLI- 

OEKCE 208 

1.  At    and    around    Stations, 

Generally 208 

2.  Platforms 215 


3.  Station    Grounds   and  Ap- 

proaches    219 

4.  Lighting  Station  Grounds  ; 

Wartning  Stations 222 

5.  Ejection  from  Station 223 

6.  Contributory  Negligence .   . .   224 

7.  Procedure    in    Actions   for 

Injuries 231 

VI.  JOINT    irSE    BT    TWO     OB    MOBE 

COMPANIES 230 

I.  DEFINITIONS ;  INTERPBETATION  OF 
WOBDS. 

1.  What  is  a  depot.*  —  The  place 
where  a  carrier  is  accustomed  to  receive, 
deposit  and  keep  ready  for  transportation 
or  delivery  merchandise  is  a  tiepot,  within 
the  general  signification  of  the  word.  J/a- 
ghee  V.  Camden  &*  A.  K.  Transp.  Co.,  45 
N.  V.  514. 

A  dcpoi.  is  a  place  where  passengers  get 
on  and  off  the  cars,  and  where  goods  are 
,  loaded  and  unloaded  ;  and  all  grounds  nec- 
essary or  convenient  and  actually  used  for 
these  purposes  arc  included  in  depot 
grounds.  Perhaps,  also,  as  the  engine  is 
frequently  supplied  with  wood  and  water  at 
such  places,  so  much  ground  as  is  necessary 
and  used  for  those  purposes,  where  wood 
and  water  are  taken  at  a  depot,  should  be 
included  in  depot  grounds.  Fowler  v. 
Farmers'  L.  6^  T.  Co.,  21   Wis.  77. 

2.  Depot  waiting  room.— A  depot 
waiting  room  where  the  public  constantly 
resort  ought  to  be  considered  a  public  place. 
It  follows  therefore  that  under  the  statute 
a  policeman  would  have  authority  at  such 
place  to  arrest  a  drunken  man  if  guilty  of 
disorderly  conduct  by  being  intoxicated. 
Pratt  s.  Brown,  80  Tex.  608,  16  S.  W.  Rep. 

443- 

3.  "  Depot  or  station."  —  The  lessee 
of  a  railroad  for  the  term  of  twenty  years 
built  a  platform  for  the  accommodation  of 
passengers  at  a  place  on  the  road,  and  gave 
it  a  regular  station  name,  and  placed  an  old 
baggage  car  on  it,  which  served  as  shelter 
to  passengers.  No  agent  was  ever  placed 
ac  the  station,  and  no  tickets  were  sold 
there,  nor  freight  billed  to  or  from  the 
place;  but  tickets  were  sold  at  other  sta> 
tions  for  the  place,  and  passengers  were 
taken  up  and  let  off,  and  the  mail  trains 

*  A  depot  placed  on  lands  by  consent  of  the 
owner  is  not  a  fixture  and  may  be  removed  by 
the  company,  see  25  Am.  &  Eng.  R.  Cas.  351, 
abstr. 


STATIONS   AND   DEPOTS,  4,  B. 


193 


219 


made  regulai  stops.  Htld,  that  the  place 
was  a  "depot  or  station,"  within  the  mean- 
ing of  Connecticut  Act  of  1866,  providing 
that  a  company  shall  not  abandon  "any 
depot  or  station  "  on  its  road,  except  by 
approval  of  the  railroad  commissioners. 
State  V.  New  Haven  A*  N.  Co.,  37  Conn, 
153,— Approved  in  New  Haven  &  N.  Co. 
V.  Hamerslcy,  2  Am.  &  Eng.  R.  Cas.  418, 
104  U.  S.  I.  DiSTiNUUiSHED  IN  State 
V.  New  Haven  &  N.  Co.,  41  Conn.  134. 
Reviewed  in  People  v.  New  York  C.  &  H. 
R,  R.  Co.,  9  Am.  &  Eng.  R.  Cas.  i,  28  Hun 
(N.  Y.)  543,  3  Civ.  Pro.  11,  2  McCar.  345. 

In  such  case  the  company  owning  the 
road  was  concluded  by  the  establishment 
of  the  station  by  the  Uosee ;  and  a  man- 
damus would  1!",  at  the  instance  of  ihe  at- 
torney-general, to  compel  the  company  to 
re-tstablish  the  station,  where  it  was  aban- 
doned without  the  consent  of  the  railroad 
commissioners.  Connecticut  v.  New  Haven 
&*  N.  Co.,  37  Conn.  153. 

Where  a  company  contracts  not  to  "  build 
or  allow  but  one  other  depot  between " 
certain  points,  a  station  at  a  coal  bank, 
where  trains  merely  stop  to  take  or  leave 
cars,  for  purposes  connected  with  the  trade, 
id  not  a  "depot "  within  the  meaning  of  the 
contract.  Mahaska  County  Ji.  Co.  v.  Des 
Moines  Valley  R.  Co.,  28  Io7va  437. 

4.  "  Regular  depot  or  station."— A 
house  and  platform  at  the  side  of  the  track, 
at  wliiali  freight  is  occasionally  received  and 
discharged  by  the  company,  but  at  which 
no  agent's  office  or  books  are  kept,  or  bills 
of  lading  or  receipts  given,  is  not  "  a  regu- 
lar depot  or  station,"  within  the  meaning  of 
N.  Car.  Code,  §  1964,  imposing  a  penalty 
for  refusal  to  receive  freight  at  '  regular 
depot  or  station.  State  v.  Suffolk  <S-  C.  K. 
Co.,  35  Am.  &*  Eng.  R.  Cas.  529,  100  A'^.  Car 
158,  5  S.  E.  Rep.  379. 

The  terms  "  a  regular  depot "  or  "  sta- 
tion," employed  in  N.  Car.  Code,  §  1964, 
contemplate  fixed  and  established  places  on 
the  line  of  a  railroad,  equipped  with  suit- 
able buildings  and  furnished  with  the  nec- 
essary officers  and  servants  for  the  regular 
transaction  of  business,  for  the  receipt  and 
delivery  of  freights  and  for  the  comfort  and 
convenience  of  passengers.  Land  v.  IVil- 
mit^ton  &•  W.  R.,  40  Am.  &*  Eng.  R.  Cas. 
18,  104  A^.  Car.  48,  lo  S.  E.  Rep.  80. 

Where  it  was  shown  that  a  railroad  com- 
pany had  been  in  the  habit  of  stoppitig  at  a 
certain  locality  to  deliver  mails;  that  it  rc- 
7  D.  R.  D.— 13 


ccived  such  passengers  there  as  might  wish 
to  embark  on  its  trains,  and  that  it  had  also 
been  accustomed  to  receive  and  deliver 
freights  for  the  accommodation  of  its  pa- 
trons in  the  vicinity;  that  the  place  was 
designated  as  a  station  on  its  tariff  schedule, 
but  that  it  iiad  no  agent,  office,  warehouse, 
or  other  facility  for  the  transaction  of  its 
business— //^/r/,  not  to  constitute  "a  regu- 
lar depot  "  or  "  station,"  within  the  mean- 
ing of  the  statute.  Landv.  U  ifmington  &* 
W.  R.  Co.,  40  Am.  6-  Eng.  K.  Cas.  18,  104 
A^.  Car.  48,  10  5.  £•.  Rep.  80. 

B.  ••  Station."— A  '  Uiceth  ithasamcie 
platform  at  which  ceiuim  daily  trains  atop 
to  take  on  or  let  off  passengc -s.  but  where 
the  coMipany  has  never  soi'i  tickets,  or  kept 
any  office  or  agent,  and  winch  has  never 
been  placed  on  its  time-table  or  list  of  sta- 
tions, is  not  a  station,  within  the  meaning 
of  Connecticut  statutes  which  forbid  cou- 
panies  to  abandon  stations  without  the  con- 
sent of  the  railroad  commissioners.  Statt 
V.  New  Haven  &*  N.  Co.,  41  Conn.  134,  6 
Am.  Ry.  Rep.  84.— DISTINGUISHING  State 
V.  New  Haven  &  N.  Co.,  37  Coi.-i.  -yi 

Whether  such  ..  place  is  a  station  or  not, 
is  a  mixed  question  of  law  and  fact,  and  a 
decision  of '.  trial  court  that  a  certain  place 
is  a  statioi,  within  the  meaning  of  the  stat- 
ute, can  be  reviewed  by  the  supreme  court 
on  apr^'al.  State  v.  New  Haven  &*  N.  Co., 
41  C  'n.  134,  6  Am.  Ry.  Rep.  84. 

Tiie  word  "  station  "  is  synonymous  with 
th ;  words  passenger  depot,  meaning  the 
p' ace,  the  grounds,  and  the  buildings  pre- 
p  red  for  and  used  by  the  traveling  public 
at  such  points  in  waiting  for,  taking,  and 
le  wing  the  trains,  and  by  the  company  in 
op  'rating  the  road  at  that  point.  State  v. 
Indiana &* I.  S.  R.  Co.,  133 Ind.  69,  32  A';  E. 
Rep.  817. 

Wi.  -^re  the  legislature  imposes  the  duty 
of  doi.'g  a  certain  thing,  it  carries  with  it 
the  doinj  of  such  things  as  are  necessary  to 
perform  ti.':  duty  commanded  ;  and  the  im- 
posed dut)  of  noting  upon  blackboards 
whether  or  lot  a  train  is  on  time,  or  if  late, 
how  much,  carries  with  it,  by  necessary  im- 
plication, t.ie  furnishing  of  the  blackboard 
and  the  .ecessary  material  to  write  with. 
State  V.  Indiana  &•  I.  S.  R.  Co.,  133  Ind. 
69,  32/  .  E.Rep.  817, 

Whether  there  is  a  failure  to  make  an 
•"-.ry  on  the  board  concerning  the  train,  as 
required  by  the  act,  or  whether  there  be  an 
entry  concerning  such  train,  which  is  false. 


1^ 


I 

I 


194 


STATIONS  AND   DEPOTS,  O-IO. 


I 

A 


there  could  be  but  one  forfeiture  as  to  such 
train  at  such  station  during  the  same  trip. 
State  V.  Indiana  &•  I.  S.  H.  Co.,  133  /«</.  69, 
i2N.E./iep.8i7. 

6.  "  Railway  station."— yr/wa  facte 
the  term  "  railway  station,"  in  a  contract, 
means  the  station  house.  Carrol/  v.  Case- 
more,  20  Grant  ^s  Ch.  ([/.  C.)  16. 

7.  "  Usual  stopping  places."  —  By 
the  words  "any  usual  stopping  place,"  as 
used  in  the  statute,  is  meant  either  a  regular 
station,  or  any  other  place  which  a  company 
expressly,  by  public  notice  or  otherwise,  or 
impliedly  by  user  for  such  purpose,  has 
designated  as  a  proper  place  for  passengers 
to  get  on  or  off  its  trains,  and  where  they, 
in  consequence  thereof,  have  the  right  to 
demand  the  exercise  of  this  privilege.  A 
place  at  which  a  train  is  stopped  for  wood 
or  water  only  is  not  "a  usual  stopping- 
place,"  in  contemplation  of  the  statute. 
Texas  &•  P.  K.  Co.  v.  Casey,  52  Tex,  1 1 2. 

8.  "Depot  grounds."  — A  railroad 
bridge  near  a  station  was  so  situated  that, 
when  an  engine  was  stopped  for  taking 
water  at  the  station,  a  shipper  of  live  stock, 
who  was  accompanying  his  cattle,  was  com- 
pelled to  pass  around  in  front  of  the  engine 
and  over  the  bridge  on  which  the  engine 
was  standing,  in  order  to  look  after  his 
stock.  It  frequently  happened  that  travel- 
ers were  compelled  to  leave  a  passenger 
train  on  the  side  of  the  bridge  opposite  the 
station  while  the  engine  was  taking  water, 
as  the  train  would  not  again  stop  at  the 
station.  Held,  in  an  action  against  the  com- 
pany for  the  death  of  a  shipper  who  fell 
from  the  bridge  in  the  night-time  while 
passing  around  the  engine  to  get  at  his 
stock,  that  the  question  of  liability  of  the 
company  was  for  the  jury,  with  the  under- 
standing that  the  company  would  be  liable 
if  the  bridge  could  properly  be  considered 
as  a  part  of  the  depot  grounds,  and  a  ver- 
dict to  the  effect  that  defendant  was  liable 
by  reason  of  not  maintaining  a  railing  on 
such  bridge  would  not  be  disturbed.  Illi- 
nois C.  R.  Co.  V.  Foley,  56  Am.  &*  Eng.  R. 
Cas.  273,  53  Fed.  Rep.  459. 

Under  Wisconsin  statutes  railroad  com- 
panics  are  required  to  fence  their  roads,  ex- 
cept at  depot  grounds  and  across  highways. 
Plaintiff  was  injured  in  the  neighborhood 
of  a  depot  where  there  was  but  one  track, 
more  than  100  yards  beyond  the  switch.  It 
appeared  that  the  company  subsequently 
placed  a  cattle-guard  between  the  place  of 


the  accident  and  the  station,  which  it  main- 
tained, and  it  further  appeared  that  long 
trains  in  switching  would  run  out  to  the 
place  of  the  accident.  Held,  that  it  could 
not  be  considered  as  a  part  of  the  company's 
depot  grounds,  within  the  meaning  of  the 
statute.  Blair  v.  Milwaukee  &'  P.  du  C.  R. 
Co.,  20  Wis.  254.— Reviewed  in  Curry  v. 
Chicago  &  N.  W.  R.  Co.,  43  Wis.  665. 

A  company  claimed  that  it  was  not  liable 
for  stock  killed,  on  the  ground  that  the  place 
was  a  part  of  its  depot  grounds,  and  it  was, 
therefore,  not  required  to  fence.  The  evi- 
dence was  conflicting,  as  to  the  purposes  for 
which  the  ground  was  used.  Held,\.h.dX  the 
court  would  not  set  aside  a  verdict  on  the 
ground  that  it  was  not  supported  by  evi- 
dence, where  the  question  was  fairly  sub- 
mitted to  the  jury,  though  the  court  was  of 
opinion  that  the  weight  of  evidence  was 
that  the  place  was  a  part  of  the  depot 
grounds.  Fowler  v.  Farmers'  L.  6-  T.  Co. , 
21  Wis.  77.— Quoted  in  Hurt  v.  St.  Paul, 
M.  &  M.  R.  Co.,  39  Minn.  485,  40  N.  W. 
Rep.  613. 

II.  E8TABII8HHENT;  LOCATIOK. 

I.  Power  to  Locate. 

0.  Genera'ly.  —  Railroad  authorities 
have  unlimited  power  to  locate  depots  for 
the  best  interest  of  the  community  and  of 
the  road,  even  though  a  money  considera- 
tion be  paid  therefor,  but  they  cannot  make 
a  matter  of  commerce  of  them  as  a  punish- 
ment to  a  non-subscribing  town.  Currie  v. 
Natchez,  J.  &*  C.  R.  Co.,  20  Am.  &*  Eng.  R. 
Cas.  303,  61  Miss.  725. 

Companies  are  permitted  to  establish 
their  ov  n  depots,  or  stations,  and  to  arrange 
their  own  schedules  for  the  safe  and  proper 
movement  and  management  of  their  trains. 
Wells  V.  Alabama  G.  S.  R.  Co.,  40  Am.  &• 
Eng.  R.  Cas.  645,67  Miss.  24,6  So.  Rep.  737. 

10.  In  another  state.  —  As  a  general 
rule,  directors  cannot,  without  the  consent 
of  the  stockholders,  authorize  the  construc- 
tion of  a  passenger  station  at  a  city  in  a 
state  foreign  to  that  in  which  the  company 
is  created,  and  to  which  its  own  road  does 
not  extend,  or  the  payment  of  any  portion 
of  the  cost  of  the  construction.  Such  ex- 
penditures would  not  be  considered  as  fall- 
ing within  the  ordinary  scope  of  their 
powers.  Nashua  &*  L.  R.  Corp.  v.  Boston 
&>  L.  R.  Corp.,  42  Am.  6-  Eng.  R.  Cas.  688, 
136  i/.  S.  356,  lo  Sup.  Ct.  Rep.  1004. 


STATIONS  AND  DEPOTS,  11,12. 


195 


But  where  two  roads  in  adjoining  states 
are  run  jointly,  and  increased  facilities  at 
such  place  are  necessary  to  enable  the  joint 
management  to  retain  its  extended  business, 
such  directors  may  contract  to  pay  a  portion 
of  the  cost  of  erecting  such  increased  facil- 
ities. Nashua  &»  L.  R.  Corp.  v.  Boston  &•  L. 
R.  Corp.,  42  Am.  &*  Eng.  K.  Cas.  688,  136 
I/.  S.  356.  10  Sup.  a.  Rep.  1004.— Distin- 
guished IN  Shepaug  Voting  Trust  Cases, 
60  Conn.  553. 

11.  lu  or  near  highways-Obstruc- 
tion—Nuisance.— A  railway  company  au- 
thorized by  special  act  to  widen  its  railway 
and  to  build  additional  stations,  is  not,  in 
the  building  of  such  stations,  controlled  by 
the  London  &  Metropolis  Management  Act, 
passed  shortly  after  the  special  act  requir- 
ing certain  distances  to  be  left  between 
buildings  and  highways.  London  &»  B.  R. 
Co.  V.  Limehouse  Dist.  Board  of  Works,  3 
■Kay&*J.  123. 

Whether,  fn  point  of  fact,  a  public  high- 
way is  injuriously  Obstructed  by  the  erection 
of  a  depot  near  to  it,  and  a  nuisance  thereby 
created,  is  a  ruestion  for  the  jury.  State  v. 
Morris  &•  E.R.  Co.,  25  N.  J.  L.  437. 

A  railroad  company  is  not  justified  in 
building  a  depot  upon  a  public  highway,  or 
so  near  to  it  that  trains  must  injuriously  ob- 
struct the  public  travel.  State  v.  Morris  &* 
E.R.  Co.,  2S  N.y.  /..  437. 

Railroad  companies  have  no  right  to  build 
station  houses  in  highways,  ^vhich  merely 
cross  the  railroad,  and  the  location  of  which 
they  do  not  change.  In  such  cases  they 
have  no  right  to  use  the  land  covered  by 
the  highway  except  on  the  track  crossing; 
and  in  this  they  are  bound  to  do  as  little 
damage  to  the  highway  as  possible.  State 
V.  Vermont  C.  R.  Co.,  27  Vt.  103. 

12.  In  streets— Interpretation  of 
statutes.— Under  the  lav3of  Iowa,  as  con- 
strued by  the  supreme  court  of  the  state,  a 
railroad  company  has  a  right  to  lay  its 
tracks  over  Water  street  in  the  city  of 
Keokuk,  in  front  of  an  abutting  lot  owner, 
without  his  consent,  after  having  obtained 
the  consent  of  the  city  authorities ;  but  the 
right  does  not  extend  to  the  erection  of  x 
depot  building  in  the  street,  without  the  lot 
owner's  consent.  Barney  v.  Keokuk,  4  Dill. 
(U.  S.)  593. 

By  N.  Y.  Act  of  1884,  ch.  187,  the  com- 
mon council  of  the  city  of  Schenectady  was 
authorized  to  close  a  part  of  Liberty  street 
in  that  city,  to  allow  dufcndant  company  to 


build  a  large  depot.  This  act  was  amended 
the  same  year  by  chapter  546,  by  provid- 
ing for  compensation  to  adjoining  property 
owners,  which  should  be  ascertained  accord^ 
ing  to  article  7  of  the  act,  entitled  "  An  act 
to  amend  and  consolidate  the  several  acts 
relative  to  the  city  of  Schenectady,  for  ap- 
praising damages  and  compensation  to  be 
made  for  property  taken  for  public  improve- 
ments." Held,  that  the  latter  act  was  not 
in  conflict  with  the  state  Constitution,  art. 
3,  §  17,  providing  that  no  act  shall  be  passed 
which  shall  provide  that  any  existing  law, 
or  any  part  thereof,  shall  be  made  a  part  of 
said  act,  or  which  shall  enact  that  any  exist- 
ing law  shall  be  applicable,  except  by  insert- 
ing it  in'  such  act.  IVeinckie  v.  New  York 
C.  «&-  H.  R.  R.  Co.,  39  N.  V.  S.  R.  584.  6i 
Hun  619;  affirmed  in  133  N.  Y.  656,  mem., 
31  A^.  E.  Rep.  625,  45  N.  Y.  S.  R.  929. 

Neither  was  such  statute  in  violation  of 
the  state  Constitution,  art.  3,  §  18,  which 
prohibits  the  legislature  from  passing  pri- 
vate or  local  acts  for  laying  out,  opening, 
working,  or  discontinuing  roads,  highways, 
or  alleys.  IVeinckie  v.  New  York  C.  &*  H. 
R.R.  Co.,  39  N.  Y.S.  R.  584,61  Hun  619, 
ISN  Y.  Supp.  680;  affirmed  in  133  N.  Y. 
656,  mem.,  31  N.  E.  Rep.  625, 45  N.  Y.  S.  R. 
929. 

Neither  does  the  statute  violate  the  state 
Constitution,  art.  3,  §  18,  paragraphs  11,  12, 
which  prohibits  laws  conferring  the  right 
to  lay  down  tracks,  or  conferring  exclusive 
privileges.  IVeinckie  v.  New  York  C.  &•  H 
R.  R.  Co.,  39  N.  Y.  S.  R.  584,  61  Hun  619, 
15  A^.  Y.  Supp.  680;  affirmed  in  133  N.  Y. 
656,  mem.,  31  N.  E.  Rep.  625,  45  N.  Y.  S.  R. 
929. 

By  said  acts  the  legislature  conferred  upon 
the  common  council  the  authority  to  pro- 
vide by  their  ordinance  to  close  the  street 
to  vehicles,  horses  and  cattle,  and  provide 
such  safe  and  reasonably  convenient  way  of 
passage  for  pedestrians  as  could  be  done 
consistently  with  the  grant  of  that  part  of 
the  street  for  depot  purposes.  Weinckie  v. 
N^  York  C.  &*  H.  R.  R.  Co.,  39  N.  Y.  S.  R. 
504,  61  Hun  619,  15  N.  Y.  Supp.  680;  af- 
firmed in  133  A'l  Y.  656,  mem.,  31  N.E.  Rep. 
625,  45  A'.  Y.  S.  R.  929. 

By  N.  Y.  Act  of  1869,  ch.  919,  the  New 
York  &  Harlem  railroad  company  was  au- 
thorized, in  constructing  its  new  depot  in 
the  city  of  New  York,  to  use  a  portion  of 
Fourth  avenue  and  Forty-second  street. 
By  the  act  of  1884,  ch.  261,  the  company 


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196 


STATIONS   AND  DEPOTS,  13,  14. 


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was  authorizeJ  lo  enlarge  its  passenger 
depot,  by  extending  the  same  over  an  addi- 
tional portion  of  Fourth  avenue.  NM, 
that  any  portion  of  the  avenue  which  the 
company  has  not  occupied  remains  a  part 
of  Fourth  avenue,  as  it  was  before  the  new 
de])ot  was  built ;  and  it  has  no  right  to  in- 
terfere with  one  using  it  in  a  lawful  manner 
for  transferring  baggage.  A^fTv  VorA;  N.  //. 
G-'H.  A'.  Co.  V.  Jackson,  15  IV.  V.  S.  A'.  167; 
affirmed  in  \2o  N.  Y.  664,  mem.,  24  TV.  E. 
Kep.  1 104,  31  A^.  Y.  S.  R.  1000. 

A  company  was  empowered  by  a  special 
act  passed  subsequently  to  the  Metropolis 
Management  Amendment  Act,  1862  (25  & 
26  Vict.  c.  102),  to  make  under  a  street  in 
London  a  subway  "  with  all  necessary 
works  connected  therewith,"  and  to  lake 
and  use  such  of  the  lands  delineated  on 
the  deposited  plans,  and  described  in  the 
deposited  books  of  reference  as  might  be 
required  for  that  purpose.  The  company 
built  in  the  street  within  the  limits  of  de- 
viation a  station,  a  part  of  which  project- 
ed beyond  the  general  line  of  buildings. 
This  station  was  necessary  for  the  purposes 
of  the  railway,  and  apart  from  the  provi- 
sions of  the  Metropolis  Management  Acts 
was  unobjectionable,  but  it  could  have  been 
erected  within  the  gene,  il  line  of  buildings 
without  any  inconvenience  except  a  con- 
siderable increase  of  expense.  Held,  that 
the  station  being  necessary,  the  special  act 
empowered  the  company  to  make  it  upon 
any  of  the  scheduled  lands  lying  within  the 
limits  of  deviation ;  that  the  effect  was  to 
repeal  section  75  of  the  Metropolis  Manage- 
ment Amendment  Act,  1S62,  so  far  a^  re- 
lated to  the  station.  City  &r>  S.  L.  R.  Co.  v. 
London  County  Council  [\Z<)\\,  2  Q.  ^.513. 
—Distinguishing  Queen  v.  Wycombe  R. 
Co.,  L.  R.  2  Q.  B.  310. 

13.  Without  cousiiltiug  coiiveii- 
ieucc  of  public— Railway  companies,  in 
the  absence  of  statutory  provisions,  are 
vested  with  a  very  broad  discretion  in  the 
matter  of  locating,  constructing  and  oper- 
ating their  railways,  and  of  locating  and 
maintaining  their  freight  and  passenger 
stations.  This  discretion,  however,  is  sub- 
ject to  the  condition  that  it  must  be  ex- 
ercised in  good  faith,  and  with  a  due  re- 
gard to  the  necessities  and  convenience  of 
the  public.  People  ex  rel.  v.  Chicago  6-  A. 
R.  Co.,  40  Am.  Sf  En^.  R.  Cas.  352,  130  ///. 
175,  22  A'.  E.  Rep.  857.— Quoting  Ohio  & 
M,  R.  Co.  V,  People  ex  rel.,  120  111.  200. 


In  the  absence  of  direct  legislation  regu- 
lating and  controlling  railroads,  a  court  of 
general  jurisdiction  may  compel  a  company 
to  extend  to  the  public  proper  depot  facili- 
ties for  the  transaction  of  business.  North- 
ern Pac,  R,  Co.  V.  Territory  ex  rel.,  29  Am. 
&*  Eiig.  R.  Cas.  82,  3  Wash.  T.  303, 13  Pac. 
Rep.  604. 

Defendant  company  abandoned  its  station 
in  a  village  of  500  inhabitants,  which  was 
the  largest  business  centre  on  that  branch 
of  the  road,  was  a  county  seat,  with  flourish- 
ing churches  and  schools,  and  doing  an 
annual  business  of  from  $200,000  to  $300,000, 
and  had  available  grounds  for  depots  and 
other  buildings  ;  and  located  its  depot  at  a 
place  four  miles  distant,  which  was  simply  a 
town  on  paper,  with  no  inhabitants  save  a 
few  speculators,  who,  being  in  the  secrets  of 
the  company,  had  located  there  for  the  pur- 
pose of  profiting  by  building  up  a  town  at 
the  expense  of  the  other  place.  Held,  that 
the  courts  of  the  territory,  without  direct 
legislation,  had  the  power  to  con.pel  the 
company  to  grant  the  former  place  proper 
station  facilities.  Northern  Pac.  R.  Co.  v. 
Territory  ex  rel.,  29  Am.  &*  Eng.  R,  Cas. 
82,  3  IVash.  T.  303,  13  Pac.  Rep.  604. 

14.  Authority  of  railway  coiiiiuiM- 
siouers.- Under  the  authority  of  Me.  Act 
of  i87i,ch.  204,  the  railroad  commissioners 
decided  that  public  convenience  and  neces- 
sity require  the  erection  of  a  freight  and 
passenger  depot  at  a  certain  place  on  de- 
fendant's road.  The  corporation  refused  to 
comply  with  the  order,  and  the  commis- 
sioners filed  their  petition  praying  this 
court  to  enforce  compliance.  Held:  (i)  t-hat 
the  statute  is  constitutional ;  (2)  that  it  is 
not  in  conflict  with  that  provision  of  the 
company's  charter  which  requires  it  "to 
receive  at  all  proper  times  and  places,  and 
convey,  persons  and  articles."  Such  pro- 
vision does  not  leave  it  to  the  company  to 
determine  what  are  proper  times  and  places. 
Railroad  Com'rs  v.  Portland  &*  O.  C.  R.  Co., 
63  Me.  269.— Approving  Com.  v.  Eastern 
R.  Co.,  103  Mass.  258.  Reviewing  and 
distinguishing  State  v.  Noyes,  47  Me. 
205.  ~  Retviewed  in  Scofield  v.  Lake 
Shore  &  M.  S.  R.  Co.,  23  Am.  &  Eng.  R. 
Cas.  612,  43  Ohio  St.  571,  54  Am.  Rep. 
846. 

Tlie  railroad  commission,  under  N.  Y. 
Act  of  1882,  ch.  353,  has  judicial  power  to 
hear  and  determine,  upon  notice,  questions 
arising  between  the  people  and  a  railroad 


i 


!i    i 


STATIONS  AND   DEPOTS,  16-18. 


197 


corporation,  but  no  power  is  given  to  it  or 
to  any  court  to  enforce  the  decision,  and  its 
proceedings  and  determinations  amount  to 
nothing  more  than  an  inquest  ior  informa- 
tion. The  attorney-general  is  given  no  new 
power  in  t>he  matter,  and  the  corporation 
may  continue  the  management  of  its  busi- 
ness in  its  own  way,  without  regard  to  the 
judgment  ot  the  commissioners.  People  v. 
Ne^v  York,  L.  E.  &>  W,  A\  Co.,  104  N.  Y. 
58,  9  N.  E.  Rep.  856. 

The  supreme  court  has  no  jurisdiction  to 
grant  a  mandamus  on  behalf  of  the  people, 
at  the  instance  of  the  attorney-general,  re- 
quiring a  railroad  corporation  to  erect  a 
building,  at  a  station  on  its  road,  of  sufli- 
cient  capacity  to  accommodate  tlie  pas- 
sengers and  freight  business  at  that  place, 
although  its  station  building  is  entirely  in- 
adequate for  these  purposes,  and  the  absence 
of  a  suitable  depot  building  and  warehouse 
is  a  serious  injury  to  the  public  business, 
and  although  upon  a  complaint  made  to 
the  railroad  commissioners  they  have  ad- 
judged and  recommended  that  the  company 
should  construct  a  suitable  building  within 
a  time  named.  People  v.  New  York,  L.  E. 
<^  W.  R.  Co.,  104  N.  Y.  58,  9  A'.  E.  Rep. 856. 

2.  Du/y  to  Locate. 

16.  Oeiierally.*— Ill  the  absence  of 
charter  or  statutory  piovi'^'otis,  a  railroad 
cannot  be  required  to  construct  and  main- 
tain depot  buildings  at  those  points  on  the 
line  where  it  is  in  tiie  habit  (jf  receiving  and 
discharging  passengers  and  freight.  People 
ex  rel.  v.  C/iuago  &^  A.  R.  Co.,  (III.)  35  Atn. 
&•  Eng.  R.  Cas.  462. —  Quoting  Marsh  v. 
Fairbury.  P.  &  N.  W.  R.  Co..  64  111.  414. 

A  company  cannot  be  compelled  to  main- 
tain a  station  when  the  welfare  of  the  com- 
pany and  its  patrons  requires  that  it  should 
be  changed  to  some  other  point.  Mobile 
&*  O.  R.  Co.  V.  People,  42  Am.  &*  Eng.  R, 
Cas.  671,  132  ///.  559,  24  /V.  E.  Rep.  643. 

The  duty  devolves  iijjon  railways  as  com- 
mon carriers  to  furnish  and  maintain  suit- 
able warehouses  or  depots  at  all  appropriate 
points  on  their  lines  for  the  receipt  and 
discharge  of  passengers  and  freight.  State 
ex  rel.  v.  Republican  Valley  R.  Co.,  22  Am. 
&*  Entr,  R,  Cas.  500,  17  Neb.  647,  24  A^.  IV. 
Rep.  329,  52  Am,  Rep.  424.— Quoiing  Mes- 


*r)uty   of    company   to  condemn    lands    for 
depot  purposes,  see  note,  9  L.  R.  A.  295. 


senger  v.  Pennsylvania  R.  Co.,  36  N,  J.  L. 
407.— Distinguished  in  State  ex  rel.  v. 
Chicago,  St.  P..  M.  &0.  R.  Co..  19  Neb.  476. 
Quoted  in  State  ex  rel.  v.  Missouri  Pac. 
R.  Co.,  29  Neb.  550. 

16.  Where  cost  of  iimiutcuoQce 
exceeds  profits.*— Thelocationof  stations 
at  points  most  desirable  for  the  convenience 
of  travel  and  business  being  indispensable 
to  the  efficient  operation  of  a  railroad  and 
the  enjoyment  of  it  by  the  public,  a  com- 
pany cannot  be  compelled  to  locate  stations 
at  points  where  the  cost  of  maintaining 
them  will  exceed  the  profits  resulting  there- 
from, nor  allowed  to  locate  them  so  far 
apart  as  practically  to  deny  reasonable  ac- 
cess thereto.  Mobile  &^  O.  R.  Co.  v.  People, 
42  Am.  &•  Eng.  R.  Cas.  671,  132  ///.  559,  24 
A'.  E.  Rep,  643. 

17.  Under  statutes  —  Alabama — 
Enjolniug  liiterfereiice.— A  company, 
being  required  by  statute  to  provide  suit- 
able depot  accommodations  for  the  travel- 
ing public,  may  maintain  a  bill  in  equity 
against  the  authorities  of  a  municipal  corpo- 
ration to  restrain  and  enjoin  their  interfer- 
ence with  the  erection  or  enlargement  of 
necessary  depot  buildings,  either  when  the 
municipal  ordinance  under  which  they  claim 
the  right  10  interfere  is  void,  or  when  the 
complainant's  structure  is  not  within  its 
terms.  Montgomery  City  Council  v.  Louis- 
ville &*  N.  R.  Co.,  84  Ala.  127,  4  So.  Rep. 
626.— Following  Mobile  v.  Louisville  & 
N.  R.  Co.,  84  Ala.  IIS. 

18. Illinois  —  Villages   of  60O 

population.— Under  Illinois  Act  of  1877, 
§  I,  which  provides  that  al'  railroad  compa- 
nies in  the  Ota  te  shall"  build  and  maintain  de- 
pots for  the  comfort  of  passengers,  and  for 
the  protection  of  shippers  of  freight  where 
such  railroad  companies  are  in  the  practice 
of  receiving  and  delivering  passengers  and 
freight,  at  all  towns  and  villages  on  the  line 
of  their  road  having  a  population  of  500  or 
more,"  a  railroad  cannot  be  required  to 
construct  and  maintain  depots — that  is, 
buildings— at  a  particular  point,  unless  it  is 
made  clearly  to  appear  that  such  place  con- 
tains a  population  of  over  500,  and  is  also  a 
point  on  its  road  where  it  is  "  in  the  practice 
of  receiving  and  delivering  passengers  and 
freight."  People  ex  rel.  v.  Chicago  &^  A. 
R.  Co.,  (III.)  35  Am.  6-  Eng.  R.  Cas.  462. 

*  Compulsory  location  of  depot.  Lack  of 
profits  as  an  objection  thereto,  see  22  Am.  & 
Eng.  R.  Cas.  515,  adstr. 


I 


6* 


! 
i 

;  'i 


198 


STATIONS  AND   DEPOTS,  19-23. 


19. Nebraska  —  Interpretation 

of  terms.— Under  the  provisions  of  the 
Constitution  and  statutes  relating  to  rail- 
roads, where  a  railroad  is  built  through  a 
town  of  1500  or  more  inhabitants,  and  it 
is  necessary  to  have  a  station  at  that  place, 
the  corporation  may  be  compelled  to  erect 
the  same,  with  the  necessary  side  tracks, 
notwithstanding  it  has  a  station  at  the 
junction  of  that  line  and  another  one  and 
one  half  miles  distant.  State  e.r  rel.  v.  Repub- 
lican Valley  K.  Co.,  22  Am.  &*  Eng.  R.  Cas. 
506.  18  Ned.  512,  26  A^.  IV.  Rep.  205;  ad- 
hering to  17  Neb.  647,  24  A^.   W.  Rep.  329. 

20. New  York— Village.— There 

is  nothing  in  N.  Y.  General  Railroad  Act 
of  1850  by  which  a  company  organized 
thereunder  can  be  compelled  to  provide 
suitable  freight  and  passenger  houses  at  a 
village  located  on  the  line  of  the  road. 
The  law  leaves  the  matter  entirely  to  the 
discretion  of  the  company.  Neither  have 
the  railroad  commissioners  any  authority 
which  can  be  enforced  in  the  courts  to  re- 
quire the  company  to  provide  such  accom- 
modations. People  V.  New  York,  L.  E.  &* 
W.  R.  Co.,  29  Am.  &»  Eng.  R.  Cas.  480, 
104  A^.  Y.  58,  9  A^.  E.  Rep.  856,  5  A^.  Y.  S. 
R.  550;  reversing  40  Hun  570,  2  A^.  Y.  S. 
R.  237.— Applied  in  Florida  C.  &  P.  R.  Co. 
T/.Stateexrel.,  31  Fla.482.  Distinguished 
IN  Alabama  G.  S.  R.  Co.  v.  Arnold,  35  Am. 
&  Eng.  R.  Cas.  466,  84  Ala.  1 59,  4  So.  Rep. 
359,  5  Am.  St.  Rep.  354. 

21.  At  the  crossing  of  two  rail- 
roads.*—Missouri  Act  of  1881,  requiring 
railroad  companies,  where  their  tracks  cross 
each  other,  to  erect  suitable  depots  and  wait- 
ing rooms  to  accommodate  passengers,  is 
valid  as  a  legitimate  exercise  of  the  police 
power  of  the  state.  State  ex  rel.  v.  Kansas 
City,  Ft.  S.  6^  G.  R.  Co.,  32  Fed.  Rep.  722, 
State  V.  Wabash,  St.  L.  6-  P.  R.  Co.,  25 
Am.  &•  Eng.  R.  Cas.  133,  83  Mo.  144. 

Either  one  of  the  companies  may  be  pros- 
ecuted for  failing  to  comply  with  the  above 
statute,  without  joining  the  other,  as  one 
company  is  not  released  from  liability  by 
the  failure  of  the  other  to  comply  with  the 
statute.  State  ex  rel.  v.  Kansas  City,  Ft.  S. 
6*  G.  R.  Co.,  32  Fed.  Rep.  722. 

The  above  statute  provides  a  penalty  of 
$2$  a  day  "  for  each  day  "  that  a  company 

•  Duty  of  company  to  maintain  station  at 
point  of  intersection  with  another  road.  Con- 
siitutionality  of  statutes,  see  note,  45  Am.  & 
L.NG.  R.  Cas.  592. 


fails  to  comply  with  the  statute.  J/elJ,  that 
a  delinquent  company  was  liable  for  $25  a 
day  for  each  day  that  it  failed  to  comply  with 
the  statute  up  to  the  time  of  bringing  suit, 
and  the  company  could  not  escape  by  paying 
a  single  penalty  of  (25.  State  ex  rel.  v.  Kan- 
sas City,  Ft.  S.  &*  G.  R.Co.,  32  Fed.  Rep.  722. 
—Not  following  Fisher  v.  New  York  C.  & 
H.  R.  R.  Co.,  46  N.  Y.  644;  Parks  v.  Nash- 
ville, C.  &  St.  L.  R.  Co.,  13  Lea  (Tenn.)  i ; 
Murray  v.  Gulf,  C.  &  S.  F.  R.  Co.,  63  Tex.  407. 
In  an  action  before  a  justice  of  the  peace 
against  a  railroad,  founded  on  the  above 
statute,  for  a  failure  to  erect  passenger  wait- 
ing rooms  at  railroad  crossings,  a  statement 
is  fatally  defective  which  omits  to  aver  that 
the  intersecting  railroads  were  both  carriers 
of  passengers.  State  v.  Wabash,  St.  L.  6-  P. 
R.  Co.,  25  Am.  &•  Eng.  R.  Cas,  133,  83  Mo. 
144. — Followed  in  State  ex  rel.  v.  Kansas 
City,  Ft.  S.  &  G.  R.  Co.,  32  Fed.  Rep.  722. 

Texas  Rev.  St.  1879,  art.  4238,  regulating 
the    receiving   and    carrying   of    freights 
by  connecting  or   intersecting  roads,  was 
amended  in  1889,  ch.  23,  so  as  to  provide 
for  depots  at  crossings,   with  a  provision 
added  that   every  company   should    keep 
its  depots  lighted  and  warmed  and  open  a 
reasonable  time  before  the  arrival  and  de- 
parture of  its  trains,  or  if  such  depot  is  at  a 
crossing  of  roads  then  for  a  reasonable  time 
before  the  arrival  and  departure  of  trains  on 
either  road.    Held,  that  the  act  was  not  un- 
constitutional as  containing  more  than  one 
subject  which  was  not  expressed  in  its  title, 
which  was  merely  "  An  act  to  amend  article 
4238  Rev.  St."     Texas &*  P.  R.  Co.  v.  Mays, 
4  Tex.  App.  {Civ.  Cas.)  225,  x^S.W.  Rep.  43. 
22.  At  the  junction  of  two  rail- 
roads.— A  railroad  company  has  authority 
to  establish  its  own  stations  for  receiving 
and  putting  down  passengers  and  merchan- 
dise, and  may  regulate  the  time  and  manner 
in  which  it  will  carry  them,  and  in  the  ab- 
sence of  statutory  obligations  it  is  not  re- 
quired in  Colorado  to  establish  stations  for 
those  purposes  at  a  point  where  another 
railroad  company  has  made  a  mechanical 
union  with  its  road.    Atchison,  T.  &>  S.  F. 
R.Co.  V.  Denver  &*  N.  O.  K.  Co.,  16  A/n.&' 
Eng.  R.  Cas.  57,  1 10  [/.  S.  667,  4  Sup.  Ct. 
Rep.  185  ;  reversing  15  Fed.  Rep.  650. 

23.  What  is  a  performance  of  this 
duty.*- A  railroad  aid   note  was  condi- 

*  Depot  and  shop  grounds  ;  duty  to  fence,  see 
notes,  35  Am.  &  Eng.  R.  Cas.  172;  13  /<t.  537; 
23  /</.  234.     See  also  42  Id,  578,  aistr. 


STATIONS   AND   DEPOTS,  24-28. 


199 


tioned  for  the  erection,  witliin  fifteen 
months,  of  a  regular  station  for  passengers 
and  freight  at  a  designated  point.  Tlie 
company  put  up  a  small  building,  and  left  it 
open,  but  kept  no  one  in  charge  to  look 
after  baggage  or  freight,  and  tiiere  were 
none  of  the  usual  facilities,  and  tn  fact  none, 
for  the  shipment  of  lumber  or  logs  or  cattle, 
and  none  for  the  care  of  other  freight  re- 
ceived or  left  for  shipment.  Held,  that,  as 
a  matter  of  luw,  a  regular  station  for  freight 
and  passengers  had  not  been  established. 
Port  Huron  &*  N.  W.  li.  Co.  v.  Richards,  90 
Mich.  577,  51  M   W.  Rep.  680. 

It  is  not  necessary  to  distinguish,  in  such 
a  case,  between  a  station  and  a  regular  sta- 
tion, as  a  station  for  passengers  and  freight 
would  include  the  usual  and  necessary  inci- 
dents of  a  station  for  the  convenience  of 
passengers,  and  to  and  from  which  it  was 
intended  to  ship  freight.  Port  Huron  &• 
N.  W.  R.  Co.  V.  Richards,  90  Mich.  577,  51 
N.  IV.  Rep.  680. 

As  a  depot  for  a  railroad  requires  room 
outside  the  depot  edifice  for  approaches, 
passengers,  deposit  of  baggage  and  the 
standing  of  trains,  the  mere  fact  that  the 
main  depot  edifice  does  not  stand  on  dis- 
continued streets  is  not  such  a  failure  to 
comply  with  the  act  as  can  make  defendants 
liable.  Weinckie  v.  New  York  C.  &*  H.  R.  R. 
Co.,  39  A^.  y.  S.R.  584.61  Hun 619;  affirmed 
in  133  N.  Y.  656,  mem.,  ^i  N.  E.  Rep.  625, 
45  N.  Y.  S.  R.  929. 

24.  covered  station.  —  Semble, 

that  a  covered  station  is  a  reasonable  ac- 
commodation which  a  railway  company  is 
bound  to  provide  for  the  public.  Caterham 
R.  Co.  v.  London,  B.  <&*  5.  C.  R.  Co.,  \  C.B. 
N.  S.  410,  26  L.  J.  C.  P.  16,  I  Ry.  <S-  C.  T. 
Cas.  32. 

25.  too  near  to  cattle-{>:iiar<ls. 

— If  it  be  the  duty  of  the  company  to  main- 
tain a  cattle-guard  at  a  given  place,  then  it  is 
its  duty  to  locate  its  station  house,  or  place 
for  landing  and  receiving  passengers,  at  a 
safe  distance  therefrom  ;  or,  if  convenience 
seems  to  require  a  nearer  location,  then  it 
is  bound,  by  guards  or  warnings,  lights  or 
signals,  to  furnish  passengers  suitable  pro- 
tection. Hulberts.  Ne7v  York  C.  R.  Co.,  ^o 
N.  Y.  145- —  DiSTiNGUlSHKD  IN  Flagg  v. 
Chicago.  D.  &  C.  G.  T.  J.  R.  Co.,  96  Mich. 
30.  Followed  in  Hoffman  v.  New  York 
C.  &  H.  R.  R.  Co.,75  N.  Y.  605 

20.  privy   nccoiiiiiiodatioiis.  — 

By  statute  enacted  since  the  (jC<niirciK(j  ui 


the  injury  in  this  case,  it  is  made  the  duty 
of  railroad  companies  to  provide  privy  ac- 
commodations at  depots  and  stations,  when 
required  to  do  so  by  the  railroad  commis- 
sion (Acts  1882-3,  p.  154) ;  and  this  may  be 
regarded  as  "a  legislative  intimation  that, 
theretofore,  the  duty  was  at  least  doubtful." 
Montgomery  &>  E.  R.  Co,  v.  Thompson,  77 
Ala.  448,  54  Am.  Rep.  72. 

27. welglilnKmachines.— A  com- 
pany which  maintains  at  its  station  a  weigh- 
ing machine  so  disordered  that  the  index 
finger  stands  when  not  in  use  at  four  pounds 
instead  of  zero,  is  guilty  of  having  in  its 
possession  a  weighing  machine  found  to  be 
incorrect  and  unjust.  Great  Western  R.  Co. 
v.  Bailie,  $  B.  &»  S.  928,  1 1  /ur.  N.  S.  264, 
34 Z./.  M.  C.  31, 13  IV.  R.  203,  II  Z.  T.  418. 

28.  Enforcement  of  performance 
of  duty,  generally.*— Under  Neb.  con- 
stitution and  statutes,  where  a  railroad  is 
built  through  a  town  of  1500  or  more  in- 
habitants, and  it  is  necessary  to  have  a  sta- 
tion at  that  place,  the  corporation  may  be 
compelled  to  erect  the  same  with  the  neces- 
sary side  tracks,  notwithstanding  it  has  a 
station  at  the  junction  of  that  line  and 
another  one  and  one  half  miles  distant. 
State  ex  rel.  v.  Republican  Valley  R.  Co. ,  22 
Am.  <S-  Eng.  R.  Cas.  506,  18  Neb.  512,  26 
N.  W.  Rep.  205. 

N.  H.  Gen.  St.  ch.  147,  §  14,  provides 
that  if  any  railroad  company  shall  not  "  upon 
request,  establish  proper  stopping-places 
and  depots  for  the  public  accommodation." 
it  may  be  compelled  to  establish  them. 
Held,  that  a  notification  of  a  vote  at  a  local 
town  meeting  that  the  town  "  require  "  the 
company  to  locate  a  depot  at  a  certain 
place,  is  equivalent  to  a  "  request,"  within 
the  meaning  of  the  statute.  Nashua  &»  R. 
R.  Co.  V.  Derry,  58  N.  H.  65. 

A  railroad  company  was  notified  that 
"the  town  of  Derry  requires  the  Nashua  & 
Rochester  railroad  to  locate  a  stopping- 
place  and  depot  in  the  town  of  Derry,  on  the 
line  of  said  railroad,  west  of  the  Back 
Meadows,  so  called,  the  said  railroad  not 
having  established  any  proper  stopping- 
places  for  the  public  accommodation  for  the 
said  town."  Held,  that  the  vote  was  suffi- 
ciently definite,  as  to  location.  Nashua  &» 
R.  R.  Co.  v.  Derry.  58  N.  H.  65. 


'-I 
4 


tit 


♦Compelling  a  railroad  company  to  build  sta- 
tions, see  notes  35  Am.  &  Enr.  R.   Cas.  464 ; 

30  lit   180  ;  29  Id.  485;  22  Id.  509. 


'^'  ill 

i  1 

:l 


200 


STATIONS  AND  DEPOTS,  29-31. 


20.  Mandamus.-Unilcr  the  provision 
of  Illinois  Act  of  18S7.  that  all  railroad 
companies  shall  build  and  maintain  depots 
for  the  comfort  of  passengers  and  for  the 
protection  o(  shippers  of  freight,  "where 
such  railroad  companies  are  in  the  practice 
of  receiving  and  delivering  passengers  and 
freight  at  all  towns  and  villages  on  the  line 
of  their  roads  having  a  population  of  500," 
mandamus  will  not  lie  to  compel  tlie  con- 
struction of  a  depot  at  a  town  having  a  pop- 
ulation of  more  than  500,  when  it  aflirma- 
lively  appears  that  the  railroad  company 
has  not  been  in  the  practice  of  receiving 
and  delivering  passengers  and  freight  at 
that  place.  PeopU  tx  rel.  v.  Chicago  Sm  A. 
R.  Co.,  40  Am.  &-Eng.  R.  Cas.  352,  130  ///. 
175.  22  A'.  E.  Rep.  857. 

Mandamus  against  a  company  properly 
issued  to  compel  it  to  locate  a  station  on 
its  line  in  a  village  of  1800  inhabitants,  ne- 
cessity for  such  station  having  been  shown. 
PeopU  ex  rel.  v.  Chicago  &*  A.  R.  Co.,  4.0  Am. 
6-  Ettg.  R.  Cas.  352.  130  //^.  17?.  22  JV.  E. 
Rep.  857. 

Where  it  is  the  duty  of  a  railroad  com- 
pany, imposed  by  the  statute,  to  establish  a 
station  at  a  certain  place  along  its  line  of 
road,  mandamus  is  tlie  proper  method  to 
compel  the  performance  of  the  duty.  State 
ex  rel.  v.  Republican  Valley  R.  Co.,  22  Am. 
<&*  Etig.  R.  Cas.  506,  18  Neb.  512,  26  N.  W. 
Rep.  205. 

In  the  absence  of  any  statutory  law,  a  rail- 
road company,  at  common  law,  owes  it  to 
the  people  to  provide  suitable  accommoda- 
tions at  its  stations.  People  v.  New  York, 
L.  E.  &•  IV.  R.  Co.,  17  Abd.  N.  Cas.  (N. 
V.)  304.  —  Quoting  and  approving  Mc- 
Donald V.  Chicago  &  N.  W.  R.  Co.,  26 
Iowa  138. 

But  under  N.  Y.  General  Railroad  Act  of 
1850,  ch.  140,  §  36,  requiring  railroad  com- 
panies to  furnish  accommodation  for  the 
transportation  of  all  passengers  and  prop- 
erty, a  court  has  power,  upon  mandamus,  at 
the  instance  of  the  attorney-general,  to 
compel  a  company  to  construct  suitable 
freight  '.md  passenger  buildings  ;  and  this 
duty  may  be  enforced  so  long  as  the  com- 
pany continues  to  operate  its  road,  without 
regard  to  the  amount  of  its  income.  People 
V.  New  York,  L.  E.  <S^  W.  R.  Co.,  17  Abb. 
N.  Cas.  (N.  Y.)  304.— Quoting  New  York 
&  H.  R.  Co.  z/.  Kip,  46  N.  Y,  546.  Review- 
ing Caterharn  U.  Co.  v.  London,  B.  &  S. 
C.  R.  Co.,  I  C.  D.  N.  S.  410. 


But  in  such  case  the  court  will  not  pre- 
scribe  particularly  what  accommodations 
shall  be  furnished,  beyond  requiring  them 
to  be  sufficient.  People  v.  New  York,  L.  E. 
&*  W.  R.  Co.,  17  Abb.  N.  Cas.  {N.  Y.)  304. 

30.  Order  of  railway  coiuiuissiou- 
ers.— Upon  complaint  that  two  stations 
were  not  adequate  to  the  requirements  of 
the  traffic — held,  that  the  company  had  not, 
under  the  circumstances,  afforded  reason- 
able facilities  for  the  receiving,  forwarding 
and  delivery  of  traffic  upon  its  railway,  and 
ordered  that  the  platforms  should  be  ex- 
tended, and  that  a  substantial  part  of  such 
platforms  should  be  roofed  in ;  that  the 
station  yard  should  be  so  arranged  as  that 
carriages  might  set  down  and  take  up  passen- 
gers under  cover ;  that  more  waiting  rooms 
should  be  provided  and  a  part  of  the  station 
reserved  for  refreshment  purposes  ;  that  the 
booking  office  should  have  more  than  one 
window  for  the  issuing  of  tickets  ;  that  cat- 
tle-pens into  which  the  stock  could  be  un- 
loaded should  be  erected ;  and  that  a  bridge 
which  connected  the  upanddown  platforms, 
and  by  which  persons  at  the  station  were  re- 
quired to  cross  the  line,  should  be  covered 
over.  Hastings  Town  Council  v.  South 
Eastern  R.  Co.,  3  Ry.  &-  C.  T.  Cas.  179.— 
Following  Caterharn  R.  Co.  v.  London, 
B.  &  S.  C.  R.  Co.,  I  Ry.  &  C.  T.  Cas.  32. 

The  commissioners  have  jurisdiction  to 
entertain  an  application  under  the  Railway 
and  Canal  Traffic  Act,  1854,  §  2,  for  an  order 
compelling  a  company  to  provide  a  station, 
on  the  ground  that  there  are  no  stations  in 
use  where  the  traffic  of  a  particular  district 
traversed  by  the  railway  can  come  or  go 
without  public  inconvenience.  Harris  v. 
London  G^  S.  W.  R.  Co.,  3  /?>'.<&-  C.  T.  Cas. 

33'. 

The  commissioners  cannot  order  accom- 
modation to  be  provided  which  entails  the 
acquisition  by  the  company  of  additional 
land  which  they  have  no  immediate  power 
tii  take.  Harris  v.  London  &•  S.  IV.  R.  Co., 
3/i>.  <5-  C.  T.  Cas.  331. 

31.  Penalty.— Mississippi  Act  of  1888, 
ch.  26,  §  2,  which  authorizes  the  railroad 
commissioners  "  to  designate  the  site  or  lo- 
cation of  any  new  depot  building  or  station 
house  that  may  be  ordered  built  ♦  ♦  ♦  and 
to  prescribe  the  number  and  dimensions  of 
the  rooms  therein  for  passengers,  designat- 
ing and  providing,  if  deemed  necessary,  sep- 
arate rooms  for  the  sexes  and  for  the  races," 
and  which  imposes  a  penalty  of  fifty  dol- 


»f 


STATIONS   AND  DEPOTS,  32-36. 


201 


lars  a  day  for  failure  to  comply  with  the 
order  of  the  commissioners,  is  highly  penal 
in  its  character,  and  the  penalty  can  only  be 
enforced  where  the  order  of  the  commis- 
sioners not  only  directs  the  building  of  a 
new  depot,  but  also  prescribes  the  number 
of  rooms.  State  v.  Alabama  &*  V.  K.  Co., 
42  Am.  &*  Eng.  R.  Cas.  681,  67  Mt'ss.  647,  7 
So.  Rep.  502. 

32.  Duty  to  designate  flag  station. 
— Tlie  refusal  of  a  railroad  company  to 
designate  as  a  flag  station  for  its  through 
trains  a  place  which  is  not  an  incorporated 
town,  which  contains  only  a  few  houses,  and 
is  situated  within  three  miles  of  a  regular 
station,  is  not  an  unreasonable  regulation ; 
and  when  the  facts  are  uncontroverted,  it  is 
error  for  the  court  to  submit  to  the  jury  the 
question  of  the  reasonableness  of  such  regu- 
lation. St.  Louis,  I.  M.  &-  S.  R.  Co.  v.  Ad- 
cock,  40  Am.  &*  Eng.  R.  Cas.  682,  52  Ari. 
406,  12  6".  IV.  Rep.  874. 

3.  As  Affected  by  Contract. 

33.  Contract  to  locate  at  particu- 
lar place.* — A  company  cannot  contract 
to  maintain  stations  at  particular  points,  or 
not  to  maintain  them  at  other  points.  The 
company  must  be  left  free  to  establish  and 
re-establish  its  depots  wherever  the  public 
welfare  or  wants  of  the  public  may  require. 
Mobile  &>  O.  R.  Co.  v.  People,  42  Am.  &' 
Eng.  R.  Cas.  671,  132  ///.  559,  24  A^.  E.  Rep. 
643.— Quoting  People  ex  rel.  v.  Chicago 
&  A.  R.  Co..  130  III.  175. 

A  railway  company  may  bind  itself  to 
maintain  a  permanent  depot  at  a  particular 
place.  Texas  &-  St.  L.  R.  Co.  v.  Robants, 
60  Tex.  545.  International  &*  G.  N.  R.  Co. 
V.  Dazvson,  62  Tex.  260. 

84.  Authority  of  engineer  to  bind 
company. — A  railroad  engineer  whose 
duty  it  was  to  obtain  transfers  of  land  and 
determine  the  situations  of  station  houses 
procured  from  plaintiffs,  for  a  nominal  con- 
sideration, grants  of  land  for  a  station 
house  and  ground,  representing  that  the 
station  would  be  put  as  desired  by  plaintiffs 
at  a  certain  point,  advantageous  to  both. 
The  deed  contamed  the  proviso  "  that  said 
company,  their  successors  and  assigns,  do 

*  Agreements  to  locate  station,  see  note,  38 
Am.  &  Eng.  R   Cas  711 

Grants  ol  land  to  railroads  in  consideration 
of  location  of  depot,  etc..  see  note,  19 L.  R.  A. 
266. 


erect  and  maintain  on  said  lands  a  station 
for  the  accommodation  of  passengers  and 
freight,  and  name  the  same  B."  The  sta- 
tion was  erected  on  the  land,  but  not  at  the 
point  represented.  Held,  that  though  plain- 
tiffs had  the  expectation  that  the  station 
would  be  placed  where  they  desired,  yet 
there  had  been  no  deceit  practised  by  de- 
fendants' engineer  for  the  purpose  of  ob- 
taining the  grants  of  land ;  that  the  engi- 
neer had  no  power  to  bind  defendants  to 
such  a  thing ;  and  that  aefendants  had 
done  all  they  were  bound  to  oo  by  observ- 
ing the  proviso  in  the  deed  which  called 
for  the  erection  of  the  station  house  on  the 
lands  without  specifying  any  particular 
point.  Schliehaitf  v.  Canada  Southern  R, 
Co.,  28  Grant's  Ch.  (£/.  C.)  236. 

35.  Interpretation  of  contract. — 
A  subscriber  to  railroad  stock  entered  into 
an  agreement  with  the  company  that  he 
might  pay  his  subscription  by  conveying 
fifteen  acres  of  land  along  the  road,  a  deed 
to  be  made  whenever  the  land  should  be 
run  off  and  the  boundaries  located,  with  a 
further  provision  that  the  company  was  to 
locate  a  depot  on  the  land.  The  land  was 
surveyed  and  a  deed  was  executed  and  left 
with  a  third  person  to  be  delivered  when 
the  depot  was  located  and  substantially 
commenced.  No  depot  was  built,  and  the 
road  passed  into  the  hands  of  another  com- 
pany. Held,  that  the  location  and  construc- 
tion of  the  depot  was  not  a  condition  either 
precedent  or  subsequent,  and  that  the  cred- 
itors of  the  company  could  subject  the  land 
to  the  payment  of  the  company's  debts,  but 
that  the  landowner  was  entitled  to  damages 
for  failing  to  locate  a  depot.  Ramsey  v. 
Edgefield  Gr'  K.  R.  Co.,  3  Tenn.  Ch.  170. 

A  company  agreed  to  locate  its  depot  at 
the  nearest  "  practicable  "  point  within  one 
mile  of  a  court-house.  Hild,  that  the  word 
"  practicable  "  was  not  synonymous  'with 
"possible."  Woofers  v.  International  &* 
G.  N.  R.  Co.,  4  Am.  &>  Eng.  R.  Cas.  100,  54 
Tex.  294. 

3G.  Time  as  the  essence  of  the  con- 
tract.—A  contract  provided  that  in  con- 
sideration of  the  location  of  a  depot  at  a 
certain  point,  and  the  building  of  the  usual 
depot  buildings  there,  and  the  running  of 
trains  to  and  from  the  same  before  a  given 
date,  defendants  would  convey  certain  land. 
Held,  not  to  require  the  building  ol  the 
depot,  but  only  the  running  of  the  trains 
within  the  time  named.     Minneapolis &*  Si, 


I 


w 

m 


m 


i: 


202 


STATIONS  AND   DEPOTS,  87-39. 


L.  /f.  Co.  V.  Cox,  76  Iowa  306, 41  N.  W.  Rep. 
24. 

37.  Validity  of  contract— Statute 
of  frauds.— Where  a  landowner  orally 
agrees  to  convey  land  to  a  company  on 
condition  that  it  will  construct  a  side  track 
thereon  and  erect  station  buildings  on  ad- 
joining land,  evidence  that  the  company 
erected  the  station  buildings  as  agreed, 
constructed  the  track  on  part  of  the  land, 
used  the  remainder  as  a  roadway  and  ex- 
pended several  hundred  dollars  in  grading 
and  macadamizing  it,  warrants  the  finding 
that  the  contract  was  sufficiently  performed 
to  take  it  out  of  the  statute  of  frauds. 
Hays  V.  Kansas  City,  Ft.  S.  Sf  G.  R.  Co.,  108 
Mo.  544,  18  i".  W.  Rep.  1115. 

The  mere  fact  that  depot  grounds  were 
donated  will  not  render  void  a  contract  for 
the  location  of  the  depot.  Harris  v. 
Roberts,  12  Neb.  631,  12  N.  IV.  Rep.  89. 

A  deed  of  land  to  a  railroad  company 
stating  the  consideration  to  be  a  certain 
number  of  dollars  and  another  instrument 
executed  at  the  same  time  by  the  landowner 
reciting  that  he  would  do  certain  acts  "  in 
consideration  of  the  purchase  of  land  from 
me  for  the  location  of  a  town  site  and  the 
location  of  a  depot  at  a  point  between  " 
certain  stations — held,  not  to  show  the 
entire  contract  between  the  landowner  and 
the  company,  and  parol  evidence  was  ad- 
missible to  show  that  the  consideration  of 
the  deed  was  that  defendant  should  locate 
a  depot  on  the  land  conveyed,  although 
neither  fraud  nor  mistake  was  alleged. 
Gulf,  C.  <S-  S.  F.  R.  Co.  V.  Jones,  51  Aw. 
&*  Eng.  R.  Cas.  413,  82  Tex.  156,  17  S.  JV. 
Rep.  S34.-Quo.lNG  East  Line  &  R.  R.  R. 
Co.  V.  Garrett,  52  Tex.  137. 

38.  —  contrary  to  public  policy.* 
— Contracts  undertaking  to  obligate  a  com- 
pany to  establish  its  depots  exclusively  at 
particular  points  are  void  as  against  public 
policy.  Such  companies  should  be  left  free 
to  establish  and  re-establish  their  depots 
wherever  the  public  welfare  or  wants  of  the 
public  may  require.  Florida  C.  &*  P.  R. 
Co.  V.  State  ex  rel..  31  Fla.  482,  13  So.  Rep. 
103.— Quoting  People  ex  rel.  v.  Chicago 
&  A.  R.  Co.,  130  111.  175;  HoUaday  t/.  Pat- 
terson,  5  Oreg.  177. 

Defendant  entered  into  a  written  agree- 


*  Validity  of  contracts  for  location  of  stations 
at  certain  places.  Public  policy,  see  notes,  56 
Ah.  &  Eng.  R.  Cas.  315;  36  Am.  Rep.  214. 


ment  with  a  stockliolder  in  a  railroad  to 
pay  a  sum  of  money  to  the  stockholder  on 
hi.,  procuring  the  location  of  a  depot  at  a 
certain  place  near  defendant's  property,  such 
a  location  tending  to  enhance  the  value  of 
said  property.  The  stockholder  formed  a 
stock  company  which  purchased  land  in 
the  neighborhood  and  donated  a  portion  to 
the  railroad  upon  which  it  erected  a  depot. 
Held,  that  this  agreement  was  contrary  to 
public  policy  and  to  open,  upright  and  fair 
dealing,  because  it  tended  injuriously  to 
affect  the  public  interest  in  having  the 
fittest  location  of  the  depot,  and  the  interest 
of  the  two  corporations,  and  therefore  was 
invalid.  Fuller  v.  Dame,  i8  Pick.  {Mass.) 
472.— Distinguished  in  First  Nat.  Bank 
V.  Hendrie,  49  Iowa  402.  Quoted  in  St. 
Joseph  &  D.  C.  R.  Co.  v.  Ryan,  1 1  Kan.  602 ; 
Holladay  v.  Patterson,  5  Oreg.  177.  Re- 
viewed IN  Berryman  v.  Cincinnati  South- 
ern R.  Co.,  14  Bush  (Ky.)  755. 

And  the  same  rule  applies  to  a  contract 
made  by  a  director  and  president  of  a  com- 
pany .nd  owner  of  a  controlling  interest 
therein,  who  agreed  with  an  individual  that 
in  consideration  of  a  certain  sum  of  money 
he  would  cause  the  line  of  the  road  to  be 
located  on  a  certain  route,  and  a  depot  to 
be  built  at  a  certain  place,  instead  of  adopt- 
ing another  route  then  surveyed,  which  was 
shorter,  and  over  which  said  road  could  be 
constructed  at  less  expense.  Holladay  v. 
Patterson,  5  Oreg.  177,  18  Am.  Ry.  Rep.  260. 
—  Distinguishing  McCIure  v.  Missouri 
River,  Ft.  S.  &  G.  R.  Co.,  9  Kan.  373. 
Quoting  Fuller  v.  Dame,  18  Pick.  (Mass.) 
472-  Reviewing  Cumberland  Valley  R. 
Co.  V.  Beale,  2  Am.  Ry.  Cas.  187.— Not 
followed  in  First  Nat.  Bank  v.  Hendrie, 
49  Iowa  402.  Quoted  in  Florida  C.  &.  P. 
R.  Co.  V.  State  ex  rel.,  31  Fla.  482.  Re- 
viewed IN  Berryman  v.  Cincinnati  South- 
ern R.  Co.,  14  Bush  (Ky.)  755, 

30.  Contract  not  biiidiiigr  on  lessee. 
— A  railway  company  leasing  another  com- 
pany's line  under  a  statute  making  it  liable 
to  all  duties  and  obligations  to  which  the 
lessor  company  would  have  been  subjected, 
is  not  bound  either  at  law  or  in  equity  by 
a  covenant  entered  into  by  such  lessor  com- 
pany with  a  landowner  to  erect  a  station, 
but  will  be  bound  when  such  station  is  made 
to  stop  trains  there.  Churchill  v.  Salisbury 
&-  D.  R.  Co.,  23  fV.  R.  894;  varying  the 
decision  of  Bacon,  V.C,  23  IV.  R,  534, 33  L. 
T.  216. 


STATIONS  AND   DEPOTS,  40-4a. 


203 


40.  nor  on  purcliasci*s  under 

execution.— Under  the  Texas  statutes  a 
person  or  corporation  acquiring  the  jjrop- 
erty  and  franchises  of  a  railway  through  sale 
under  execution,  takes  them  freed  from  all 
liability  for  former  indebtedness  not  secured 
by  a  prior  lien.  So  a  purchaser  of  a  road 
at  execution  sale  takes  it  freed  from  the 
contract  of  the  former  company  to  maintain 
a  depot  at  a  certain  place.  Gulf,  C.  &*  S, 
F.  R.  Co.  V.  Newell,  38  Am.  (5-  Eng.  R.  Cas. 
503.  73  7>jr.  334.  II  S.   PV.  Rep.  342. 

41.  Performance  of  contract.  —  A 
landowner  conveyed  a  right  of  way  over  his 
land  on  condition  that  the  company  should 
make  a  certain  village  a  station.  The  com- 
pany made  the  village  a  station,  but  located 
the  depot  about  one  and  one  fourth  miles 
from  the  village.  Held,  that  this  was  a 
sufficient  compliance  with  the  condition. 
Jenkins  v.  Burlington  &*  M.  R.  R.  Co.,  29 
foTva  255. 

The  owner  of  land  agreed  in  writing  to 
convey  it  to  a  company  for  depot  pur- 
poses on  condition  that  it  be  occupied  for 
the  western  part  of  the  company's  depot 
grounds  and  that  a  part  of  the  usual  depot 
buildings  be  erected  thereon.  It  was  then 
expected  that  the  other  part  of  the  depot 
grounds  and  buildings  would  be  located 
across  a  street  adjoining  the  ground  to  be 
conveyed  on  the  east,  but  nothing  was  said 
in  the  agreement  about  the  location  of  the 
eastern  part  of  the  depot  grounds  and  build- 
ings. The  company  caused  to  be  erected 
and  sustained  on  said  piece  of  ground  a 
warehouse  for  the  accommodation  of  tlie 
public  in  doing  business  on  the  road,  and 
constructed  thereon  facilities  for  loading 
and  unloading  live  stock,  coal,  and  lumber; 
but  erected  the  pri^ncipal  depot  buildings 
forty  rods  east  of  said  land.  Held,  that  the 
company  had  complied  with  the  condition 
of  the  agreement,  and  was  entitled  to  hold 
the  land.  Pittsburg,  Ft.  IV.  &*  C.  R.  Co. 
V.  Rose,  24  OAio  St.  219,  7  Am.  Ry.  Rep.  i. 

Where  a  company  has  covenanted  with  a 
landowner  that  a  piece  of  land  purchased 
from  him  shall  be  forever  used  as  a  first- 
class  station,  and  such  company  is  after- 
wards made  a  part  of  another  company 
having  a  much  longer  line,  and  the  station 
erected  has  remained  for  many  years  with- 
out objection,  the  passengers  being  few,  the 
court  will  not,  on  the  application  of  such 
landowner,  compel  the  comp^.ay  to  erect  a 
larger  station;  but  as  many  trains  as  stop  at 


any  other  station  between  the  termini  ol  the 
original  road,  excepting  mail,  express  and 
special  trains,  must  stop  at  such  stutiun. 
Hood  V.  North  Ea;.:ern  R.  Co.,  L.  R.  $  C^- 
525,  18  W.  R.  473,  23  Z.  T.  206. 

43. and   excuse  for  non-por- 

forniance.  —  A  contract  to  convey  land 
in  consideration  of  the  location  and  main- 
tenance of  a  depot  at  a  certain  place  cannot 
be  avoided,  after  the  depot  has  been  built, 
on  the  ground  that  the  courts  will  not  com- 
pel the  other  contracting  party  to  maintain 
the  depot  at  that  place.  Minneapolis  &*  St. 
L.  R.  Co.  V.  Cox,  76  lowii  306,  41  N.  W. 
Rep.  24. 

43.  Breach  of  contract  —  Dam- 
ngcH.*  —  The  damages  recoverable  for 
breach  of  a  covenant  to  erect  a  depot  are  to 
be  determined  by  the  injury  actually  sus- 
tained by  the  failure  of  the  company  to  per- 
form its  contract,  and  evidence  tending  to 
show  the  increase  in  value  of  plaintifl's  re- 
maining land,  which  the  location  of  a  sta> 
tion  at  the  point  agreed  upon  would  have 
produced,  is  proper.  Louisville,  N.  A.  &*  C. 
R.  Co.  v.  Sumner,  24  Am.  6-  Eng.  R.  Cas. 
641,  106  /nd.  55,  5  A'.  E.  Rep.  404. 

Plaintif!  agreed  to  convey  certain  lands 
to  a  railroad  company  on  which  it  agreed 
to  erect  a  depot,  which  it  was  sup- 
posed would  greatly  enhance  the  value 
of  a  tavern  and  other  grounds  belong- 
ing to  plaintiff.  Very  soon  afterwards  all 
the  lands  belonging  to  plaintiff,  including 
that  agreed  to  be  conveyed  to  the  company, 
were  sold  under  execution.  By  the  indul- 
gence of  the  purchaser  plaintiff  continued  in 
possession  of  the  tavern  and  received  the 
rents  and  profits  for  a  number  of  years. 
Held,  that  a  conveyance  to  the  company 
was  a  condition  precedent  to  its  obligation 
to  erect  a  depot,  and  when  the  property  was 
sold  under  execution,  and  it  was  impossible 
for  plaintiff  to  convey,  the  agreement  was 
wholly  dissolved.  And  any  damages  to  the 
tavern  business  from  a  failure  to  erect  a  de- 
pot belonged  to  the  purchaser  at  the  execu- 
tion sale,  and  not  to  plaintiff.  Sayre  v. 
New  York  &>  H.  R.  Co.,  3  Duer  {N.  V.)  54. 
A  contract  to  convey  a  right  of  way  pro- 
vided that  the  company  should  erect  a  sta- 
tion in  "a  neat,  tasty,  ornamental  style." 
The  company  objected  to  a  specific  per- 
formance on  the  ground  that  the  descrip- 

*  Breach  of  contract  to  build  depot  or  station, 
see  note,  26  Am.  &  Eng.  R.  Cas.  593. 


m 


204 


STATIONS   AND   DEPOTS,  44-48. 


,'i  t 


tion  was  too  indefinite.  The  »vidence 
showed  that  two  similar  stations  had  been 
built  near,  under  the  same  contracts.  Z/fM, 
that  this  was  practical  evidence  of  what 
the  remaining  station  should  be.  And  the 
company  should  be  required  to  build  a  stci- 
tion  like  the  others,  or  pay  damages.  Law- 
fence  v.  Saratoga  Lake  R.  Co.,  3  N.  V.  S.  R. 
743 ;  former  appeal  36  Hun  467. 

In  an  action  against  a  railroad  for  not 
erecting  a  depot  at  an  agreed  place,  the 
measure  of  damages  is  the  additional  value 
that  would  have  accrued  to  plaintiff's  land 
as  a  business  place  had  the  depot  been  built. 
Watterson  v.  Allegheny  Valley  R.  Co.,  74 
Pa.  St.  208,  8  Am.  Ry.  Rep.  30. 

A  company  in  breach  of  a  contract  entered 
into  by  it  to  run  trains  from  the  eastern 
part  of  a  city  to  the  western  part,  ceased  to 
rim  such  trains.  Held,  on  a  reference  as  to 
damages,  that  though  the  actual  deprecia- 
tion of  property  in  the  western  part  of  the 
city  resulting  therefrom  was  a  matter  per- 
taining to  the  property  owners,  and  not  to 
the  city,  yet  the  lessened  taxation  resulting 
from  such  depreciation  was  not  too  remote 
a  fact  for  consideration  on  the  reference, 
and  such  a  loss  in  taxation  which  could  be 
traced  to  or  reasonably  connected  with  the 
company's  default  formed  a  yearly  standard 
which  might  be  capitalized  so  as  fairly  to 
represent  the  money  compensation  to  which 
the  plai  ntifTs  were  entitled.  Stated  broadly, 
the  inquiry  was  how  much  less  benefit  had 
been  received  by  the  municipality  by  reason 
of  the  railway  service  at  one  station  being 
discontinued.  St.  Thomas  v.  Credit  Valley 
R.  Co.,  36  Am.  &*  Evf(.  R.  0^.473,  15  Ont. 
673.— Reviewing  VVilson  ?'.  Northampton 
&  B.  J.  R.  Co..  L.  R.  9  Ch.  279. 

If  the  company  admits  that  it  is  never 
again  going  to  run  trains  to  the  western  end 
of  the  city,  the  damages  should  be  assessed 
once  for  all,  which  may  be  done  either  by 
fixing  one  solid  sum,  or  by  directing  a  yearly 
payment.  St.  Thomas  v.  Credit  Valley  R. 
Co.,  36  Am.  &*  EfJff.  R.  Cas.  473, 1  $  Ont.  673. 

44.  Enforcement  of  contract.  — 
Plaintiff,  by  its  president,  agreed,  for  a  sub- 
scription of  $1200,  to  build  a  depot  in  a 
certain  place.  Parties  interested  started  a 
subscription.  After  a  part  of  the  required 
sum  had  been  subscribed  the  president  noti- 
fied subscribers  and  others  that  he  required, 
in  lieu  of  such  general  subscription,  an  as- 
sumption by  two  or  three  responsible  per- 
sons of  the  payment  of  the  sum  reqiiire  t, 


and  therefore  L.  and  others  promised  by 
parol  to  assume  it,  after  which  canvass  was 
made  for  further  subscriptions  and  subscrip- 
tions obtained  for  $1400,  the  subscribers 
intending  not  only  to  put  L.  and  others  in 
funds,  but  to  pay  in  part  for  a  telegraph 
line.  In  assumpsit  by  plaintiff  against  a 
3ubscriber,  the  court  charged  that  if  the 
undertaking  of  L.  and  others  was  u  mere 
collateral  guaranty,  plaintiff  might  recover, 
but  that  if  the  promise  of  L.  and  others  was 
substituted  for  the  subscription,  and  plain- 
tiff agreed  to  look  to  them  alone  for  pay- 
ment, it  could  not  recover.  Held,  that  L. 
and  others  were  the  contracting  parties  with 
plaintiff,  that  they  alone  could  be  sued  for 
a  breach,  and  that  the  charge  was  without 
error.  Lamoille  Valley  R.  Co.  v.  Marsh,  49 
Vt.  yj,  17  Am.  Ry.  Rep.  136. 

45. specific  performance.  —  A 

contract  whereby  a  railway  company  agrees 
to  build  a  station  at  a  particular  spot,  but 
containing  nothing  as  to  the  user  of  such 
station  or  the  accommodations  to  be  af- 
forded, is  too  indefinite  to  be  specifically 
enforced;  but  the  court  will  give  damages 
for  the  breach  of  such  contract.  Wilson  v. 
Northampton  <&*  B.  J.  R.  Co.,  43  L.  J.  Ch. 
503.  L.  R.  9  Ch.  279,  22  W.  R.  380.  30  L.  T. 

147. 
40. notice   of  performance.— 

When  a  party  agrees  to  pay  a  company  a 
certain  sum  of  money  on  the  completion  of 
a  depot  building  at  a  certain  place,  he  is  en- 
titled to  notice  of  such  completion  before 
suit  can  be  brought  to  enforce  payment  un- 
der the  contract.  Vannoy  v.  Duprez,  72 
Ind.  26. 

III.  ABANDONMENT  AND  BELOCATION. 

I.  In  General. 

47.  Kiglit  to  abandon  or  remove.* 

—  After  havingonce  fixed  the  terminal  points 
of  its  road,  and  located  its  depot  in  a  town 
or  city,  a  company  has  no  power  afterwards 
to  change  the  same  without  legislative  au- 
thority, but  it  will  be  held  to  its  election. 
People  ex  rel.  v.  Louisville  &»  N.  R.  Co.,  120 
///.  48, 10  A'.  E.  Rep.  657. 

48.  Bight  to  damages  for  removal. 
— An  action  can  be  maintained  for  the  value 
of  certain  land  conveyed  to  a  railroad  com- 
pany, the  consideration  being  a  parol  agree- 
ment between  the  grantor  and  the  company 

*  Removal  and  abandonment  of  railroad  sta- 
tions, see  note,  50  Am.  &  Eng.  R.  Cas.  14. 


STATIONS  AND   DEPOTS,  40-51. 


205 


that  the  latter's  depot  should  be  perma- 
nently located  in  the  southern  part  of  a  city, 
the  railroad  having;  afterwards  removed  its 
depot  from  that  location.  International &* 
G.  N.  R.  Co,  V.  Dawson,  62  /V.r.  260. 

4U. (laiiiiiKVH  for  deprecintiuii 

ill  vnliit!  of  iifoperty.— Where  an  indi- 
vidual sues  for  damages  caused  by  the  de- 
preciation of  his  property  by  reason  of  de- 
fendant company  discontinuing  its  old  route 
for  through  trams,  and  constructing  a  new 
route,  so  that  they  did  not  stop  at  a  depot 
near  liis  premises,  it  is  not  competent  for 
him  to  raise  the  question  that  such  change 
violates  thecompany's  charter.  Such  ques- 
tion can  only  be  raised  by  the  state.  Kinealy 
V.  .SV.  Loitis,  K.  C.  &-  N.  A'.  Co..  69  Mo.  658. 
— DisriNUUiSHiNG  Tate  ?'.  Missouri,  K.  & 
T.  R.  Co.,  64  Mo.  149.  Ui'.viKWiNG  Little 
Miami  R.  Co.  v.  Naylor,  2  Ohio  St.  236; 
Baltimore  &  S.  R.  Co.  v.  Compton,  2  Gill 
(Md.)  20.  Reviewing  and  quoting  Brain- 
ard  V.  Missiquoi  R.  Co.,  48  Vt.  107. 

In  a  suit  for  damages  for  removing  a  rail- 
road depot  from  tiie  location  in  which  it  has 
been  for  years,  evidence  of  damage  by  loss 
of  custom,  reduction  In  rents,  and  damage 
to  the  property  for  hotel  purposes  is  admis- 
sible to  prove  the  depreciation  in  the  value 
of  property.  Houston  &>  T.  C,  Ji.  Co.  v. 
Molloy,  25  Am.  &»  Eng.  li.  Cas.  244,64  Tex. 

(XIT]. 

50.  Ownership  and  uhc  of  land 
alter  removal.— Land  was  conveyed  to  a 
company  in  consideration  that  it  would 
locate  and  maintain  a  depot  thereon,  which 
was  maintained  for  eleven  years.  Held, 
that  there  was  only  a  partial  failure  of  con- 
sideration, and  the  land  would  not  revert  to 
the  original  owner,  but  he  might  recover 
damages.  Berkley  v.  Union  Pac.  R.  Co.,  33 
Fed.  Rep.  794. 

When  one  has  granted  land  upon  consid- 
eration that  the  grantee  will  locate  its  depot 
on  the  ground,  the  grantor  believing  that 
his  adjoining  lands  will  thereby  be  enhanced 
in  value,  the  fact  that  both  the  granting 
clause  and  the  habendum  recite  that  the 
land  IS  lor  the  use  of  said  depot  "  and  other 
railroad  purposes  "  does  not  entitle  the  com- 
pany, after  removing  its  depot  to  another 
part  of  the  city,  to  continue  to  use  the  land 
for  '■  other  railroad  purposes,"  it  being  ex- 
pressly stipulated  in  the  deed  that  the 
grantor  shall  have  the  rif  ht  to  .  esume  pos- 
session of  the  land  "  in  evi..»t  the  said  rail- 
road shall  discontinue  the  said  point  as  a 


depot  for  the  said  road,  and  said  ground 
shall  no  longer  be  useful  for  said  purposes." 
The  election  of  a  depot  on  the  ground  and  its 
continuous  use  as  a  depot  was  the  sole  con- 
sideration nf  the  possessory  grant,  and  the 
other  uses  to  which  the  ground  might  be 
applied  were  n.-'rely  privileges  that  might 
be  enjoyed  in  c  ;!Junction  with  its  use  for  a 
depot,  and  no!,  independently  of  that  use. 
Owensborc  &*  N.  R.  Co.  v.  Griffith,  92  Ky. 
137,  175.  IV.  Rep.  277. 

2.  Statutory  Prcfvisions, 

51.  Conncctieiit.  —  (1)  Statutes  con- 
strued.*— A  company  having  two  stations 
only  a  mile  apart  applied  to  the  railroad 
commissioners,  under  Connecticut  Act  of 
1866  (Gen.  St,  327),  for  the  privilege  of  dis- 
continuing both  and  erecting  an  interme- 
diate station.  The  commissioners  made  an 
order  authorizing  the  company  to  abandon 
both  stations,  upon  condition  that  it  erect 
a  new  passenger  station  at  a  designated 
place,  with  suitable  approaches,  and  to  con- 
tinue the  old  stations  for  freight.  Held, 
that  this  was  not  such  a  conditional  order 
as  to  render  it  invalid.  Stale  v.  New  Haven 
&*  N.  Co.,/^2  Conn.  56, 

After  railroad  commissioners  had  con- 
sented that  a  certain  station  be  discontin- 
ued, the  legislature  passed  an  act  re-estab- 
lishing it  as  a  station.  The  company's 
charter  provided  that  the  legislature  might 
alter  or  repeal  it  at  pleasure ;  but  a  general 
statute  provided  that  amendments  to  char- 
ters should  not  be  operative  unless  accepted 
within  six  months.  Held,  that  the  act  re- 
establishing the  station  was  operative  with- 
out the  acceptance  of  the  company,  as  it  was 
not  strictly  an  amendment  to  the  company's 
charter.  State  v.  New  Haven  &*  N.  Co.,  43 
Conn.  351. 

The  act  of  the  commissioners  in  discon- 
tinuing the  old  station,  and  of  the  company 
in  erecting  a  new  one  under  the  order  of 
the  commissioners,  did  not  constitute  a  con- 
tract between  the  state  and  the  company; 
therefore,  the  act  of  the  legislature  in  re- 
establishing the  old  station  was  not  void  as 
impairing  the  obligation  of  a  contract.  State 
V.  New  Haven  6«»  A^.  Co.,  43  Conn.  351. 

The  railroad  commissioners  of  Connecti- 
cut are  a  judicial  tribunal,  but  their  findings 

*  What  constitutes  a  station  within  the  mean- 
ing of  statutes  relating  to  the  abandonment  of 
stations,  see  note,  21  Am.  &  Eng.  R.  Cas.  241, 


( 


»M 


STATIONS  AND   DEPOTS,  52. 


arc  not  strictly  judgments ;  therefore,  the 
above  act  of  tlie  legislature  was  not  void  as 
an  attempt  to  annul  or  reverse  a  judgment. 
State  V.  New  Haven  &>  N.  Co.,  43  Conn.  351. 

(J)  Powers  0/  commissioners  —  Oniers. — 
Under  Conn.  Act  of  1866,  cli.  67,  the  rail- 
road commissioners  have  power  to  dis- 
cuntinue  any  station,  regardless  of  how  it 
may  have  been  established.  Chester  v.  Con- 
necticut  Valley  K.  Co.,  41  Conn,  348. 

A  company  that  had  been  maintaining 
two  stations  only  160  rods  apart  made  ap- 
plication to  the  railroad  commissioners  to 
discontinue  one  of  them.  The  commis- 
sioners ordered  that  one  of  the  stations 
should  be  discontinued,  upon  condition  that 
a  certain  private  road  leading  to  the  other 
station  be  conveyed  to  the  town,  and  upon 
the  company  paying  $250  to  the  town  to 
improve  the  highways.  Held,  that  the  com- 
missioners had  no  right  to  impose  such 
conditions.  The  conditions  could  not  be 
disregarded,  and  allow  the  order  otherwise 
to  stand,  where  it  appears  that  it  would 
not  have  been  made  except  for  the  condi- 
tions. Chester  v.  Connecticut  Valley  N.  Co., 
41  Conn.  348. 

After  such  order  had  been  made  and  the 
conditions  complied  with,  the  company  ap- 
plied to  the  commissioners  for  an  absolute 
order  for  the  discontinuance  of  the  station, 
and  the  commissioners  made  an  order,  re- 
citing that  the  conditions  had  been  com- 
plied with,  and  directed  the  station  discon- 
tinued. Held,  that  this  order  was  void,  as  it 
was  founded  on  the  former  order,  which  was 
unauthorized  and  void.  Chester  v.  Connect- 
icut Valley  R.  Co.,  41  Conn.  348. 

62.  MassacliuscttM.— (I)  Statute  con- 
strued.—The  records  of  the  board  of  rail- 
road commissioners  contained  a  vote  that 
the  board  approved  the  relocation  of  a  pas- 
senger station  "  as  proposed  by  the  select- 
men "  of  the  town.  The  records  of  the 
selectmen  contained  a  vote,  written  by  the 
town  clerk,  who  was  not  a  member  of  the 
board  nor  sworn  as  its  clerk,  but  who  acted 
as  such,  that  the  station  "  be  relocated  "  at 
the  place  named  "  in  concurrence  with  the 
vote  of  the  railroad  commissioners."  Held, 
that  there  was  an  "approval  in  writing  "  by 
the  railroad  commissioners  and  by  the 
selectmen,  within  Mass.  Pub.  St.  ch.  112, 
8  157.  Attorney-General  v.  Eastern  R.  Co., 
21  Am.  &*  Eng.  R.  Cas.  237,  137  Mass.  45. 

Mass.  Pub.  St.  S  156,  providing  that  no 
passenger  station  established  for  five  years 


shall  be  abandoned  without  the  consent  of 
the  legislature,  and  a  later  act  providing 
that,  with  certain  exceptions,  stations  may 
be  relocated  with  the  written  con-tent  of  the 
railruad  commissioners  and  of  the  local 
authorities,  are  not  in  conflict,  in  view  of 
the  general  tendency  of  the  legislature  to 
place  the  regulation  of  the  relocation  of 
stations  within  the  operation  of  general 
laws;  and  the  statutes  as  they  stand  au- 
thorize the  consolidation  of  two  such  stop- 
ping-places into  one  by  relocation  at  one 
point  in  one  proceeding,  with  special  re- 
gard to  the  accommodation  of  the  public 
convenience.  Cunnin^hatH  v.  Railroad 
Com'rs,  56  Am.  &*  Eng.  R.  Cas.  301,  158 
Mass.  104,  32  A'.  E.  Rep.  959. 

Two  railroad  stations  can  be  relocated  at 
the  same  point  in  one  proceeding  under 
Mass.  Pub.  St.  ch.  112,  §  157,  and  the  con- 
tention that  such  a  change,  necessarily  les- 
sening the  number  of  stopping  places,  is  an 
abandonment  forbidden  by  ch.  114,  §  156,  is 
unsound.  Cunningham  v.  Railroad  Com'rs, 
56  Am.  &'E>tg.  R.  Cas,  301,  158  Mass.  104, 
32  A^.  E.  Rep.  959. 

(2)  Relocation  distittguished/rom  aba.tdon- 
ment.—A  railroad  corporation,  which  had 
maintained  a  passenger  station  in  a  town  for 
five  consecutive  years,  after  obtaining  the 
approval  of  the  railroad  commissioners  and 
of  the  selectmen,  established  a  new  station 
in  the  same  town  and  neighborhood,  and, 
after  giving  public  notice  of  its  intention, 
discontinued  the  stopping  its  trains  at  the 
old  station,  and  used  the  new  station.  Held, 
that  there  was  a  relocation,  and  not  an 
abandonment,  of  the  station,  within  the 
Pub.  St.  ch.  112,  §§  156,  157.  Attorney. 
General  v.  Eastern  R.  Co.,  21  Am.  &*  Eng. 
R.  Cas.  237,  137  A/ass.  45. 

(3)  Review  of  commissioners'  acts.—U  the 
board  of  railroad  commissioners  and  the 
selectmen  of  a  town  have  properly  signified 
their  "  approval  "  of  the  relocation  of  a 
passenger  station  of  a  railroad  corporation, 
as  required  by  the  Pub.  St.  ch.  112,  §  157, 
in  such  cases,  the  supreme  court  will  not 
revise  their  decision.  Attorney-General  v. 
Eastern  R,  Co,,  21  Am.  6-  Eng.  R.  Cas.  237, 
1 37  Mass.  45. 

Where  none  of  the  petitioners  for  a 
certiorari  to  review  the  action  of  the  com- 
missioners in  authorizing  such  relocation 
were  part';s  to  the  proceedings  before  the 
board,  and  none  of  uiem  would  have  been 
entitled  to  a  pri»v.to  remedy  if  the  action  of 


bTATlONS  AND   DEPOTS,  53,  64. 


207 


the  board  was  unauthorizcil,  they  cannot 
maintain  the  certiorari,  Ijowcver  much  their 
estates  may  be  aflectcd  by  the  proposed 
ctianges.  Cunningham  v.  Railroad  Cotn'rs, 
S6  Am.  &>  £n/{.  N.  Cas.  301,  158  Mass.  104, 
32  A'.  E.  Rep.  959. 

53.  MiMMlHitippl  —  New  York.  -  (1) 
Consent  of  commissioners.  —  Cliaiigiiig  tlie 
site  o(  a  station  house  from  one  place  to 
another  in  the  same  town,  for  reasons  of 
convenience,  necessity,  or  the  public  good, 
is  not  within  the  meaning  of  Miss.  Act  of 
February  22,  1890,  §  4,  which  prohibits  the 
"abolishment  or  disuse  of  any  depot  when 
once  established,"  without  the  consent  of 
the  railroad  commission.  State  ex  rel.  v. 
Alabama  &*  V.  R.  Co.,  50  Am.  &*  Eng.  R. 
Cas.  10,  68  Afiss.  653,  9  So.  Rep.  469. 

Such  change  can  only  be  made  without 
the  approval  of  the  commission  when  the 
proposed  new  site  is  coiivcnie  it  and  acces- 
sible, and  when  the  interest  of  tlic  public 
and  that  of  the  company  concur  in  demand- 
ing the  change.  State  ex  rel,  v.  Alabama  &* 
V.  R.  Co.,  ioA/n.  &'Eng.  R.  Cas.  10,  68 
Afiss.  653,  9  So.  Rep.  469. 

(2)  Enjoining  removal.  —  Notwithstand- 
ing the  state  railroad  commission  has  de- 
clared a  proposed  new  site  to  be  inconven- 
ient, and  ordered  a  new  station  house 
erected  on  the  site  of  the  old,  a  bill  filed, 
under  the  order  of  the  commission,  by  the 
representative  of  the  state,  to  enforce  com- 
pliance and  to  enjoin  the  removal,  cannot  be 
maintained  unless  it  is  made  to  appear  that 
the  new  site  is  inconvenient  and  inaccessi- 
ble, regard  being  had  to  the  interests  of 
the  company  and  the  public.  State  ex 
rel.  v.  Alabama  &*  V.  R.  Co.,  50  Am.  <S- 
Eng.  R.  Cas.  10,  68  Miss.  653,  9  So.  Rep. 
469. 

Under  N.  Y.  Act  of  1855,  ch,  255,  providing 
that  highway  commissioners  may  maintain 
an  action  against  a  railroad  company  to 
"  sustain  the  rights  of  the  public  in  or  to  a 
highway,  or  to  enforce  performance  of  any 
duty  enjoined  upon  a  railroad  corporation 
in  relation  to  a  highway,"  the  highway 
commissioners  of  a  town  have  no  legal  ca- 
pacity to  maintain  an  action  to  restrain  a 
company  from  changing  the  location  of  its 
depots,  when  the  action  is  not  brought  for 
any  of  the  purposes  specified  in  the  act. 
Moore  v.  Brook  yn  City  R.  Co.,  36  Am.  &» 
Eng.  R.  Cas.  76,  108  N.  Y.  98.  15  A'.  ^.  Rep. 
191,  13  A'.  Y.  S.  R.  97;  affirming  36  Hun 
642,  mem. 


IV.   BOLES  OF  COMPAKT. 

04.  Ooiiorttlly.*— A  railroad  corpora- 
tion has  authority  to  make  and  carry  into 
execution  reasonable  regulations  (or  the 
conduct  of  all  persons  using  the  railroad  or 
resorting  to  its  depots,  without  prescribing 
such  regulations  by  by-laws;  ami  the  super- 
intendent of  a  railroad  depot,  appointed  by 
the  corporation,  has  the  same  authority  by 
delegation.  Com.  v.  Power,  7  Mete.  (Mass.) 
596.— Quoted  in  Landrigan  v.  State,  31 
Ark.  50. 

Any  person  who  desires  to  go  upon  the 
cars  has  the  right,  in  a  proper  manner,  and 
at  suitable  times,  to  go  upon  the  prprnises 
of  the  company,  at  any  station  where  pas- 
senger trains  stop  to  receive  passengers,  for 
the  purpose  of  procuring  a  ticket  and  get- 
ting on  board,  and  the  company  has  no 
right  to  prevent  or  hinder  his  coining  on 
the  premises,  or  order  him  to  depart  there- 
from, before  the  departure  of  the  train. 
Harris  v.  Stevens,  31  K/.  79. 

And  such  person  has  the  right  to  remain 
on  the  premises  of  the  company,  at  such 
station,  until  the  departure  of  the  train,  and 
then  to  get  upon  it,  and  this  too  whether  he 
has  purchased  a  ticket  or  not.  The  right  to 
remain  until  the  arrival  of  the  train  and 
then  to  get  upon  it  does  not  depend  upon 
the  purchase  of  a  ticket,  unless  the  rules  ut 
the  company  require  that  all  persons  shall 
purchase  tickets  before  they  enter  the  cars. 
The  procuring  of  a  ticket  only  furnishes 
evidence  of  an  intent  to  go  upon  the  train. 
Harris  v.  Stevens,  31   Vt.  79. 

The  right  to  enter  and  remain  upon  the 
company's  premises  for  such  purpose  may 
be  forfeited  by  the  improper  conduct  of  the 
person  or  by  a  violation  of  the  rules  and 
regulations  of  the  company ;  and  if  the 
person  does  so  forfeit  his  right  to  remain, 
the  company  may  require  him  to  depart, 
and  if  he  refuses,  may  use  force  enough  to 
remove  him.    Harris  v.  Stevens,  31  Vt.  79. 

The  right  thus  to  go  upon  and  remain 
on  the  company's  premises  must  be  exer- 
cised in  a  proper  manner,  with  a  due  regard 
to  the  just  requirements  of  the  company, 
and  it  must  be  exercised  within  a  reasonable 
time ;  that  is,  the  person  may  go  upon  the 
premises  within  a  reasonable  time  next 
prior  to  the  regular  time  of  departure  of  the 

*  Rules  and  regulations  of  railroad  companies 
generally,  see  notes,  33  Am.  &  Eng.  R.  Cas. 
496 ;  9  /</.  304. 


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208 


STATIONS  AND   DEPOTS,  55-59. 


train,  and  remain  until  it  arrives.  What  is 
a  reasonable  time  must  depend  upon  the 
circumstances  of  each  case.  Nam's  v. 
Stevens,  31  Vt.  79. 

55.  Providing  for  the  admission, 
exclusion  or  removal  of  certain  per- 
sons.*—A  company  may  make  reasonable 
regulations  for  the  conduct  cf  all  persons 
who  come  upon  its  premises,  and  may  au- 
thorize its  agents  and  servants  to  remove 
therefrom  any  person  who  violates  its  regu- 
lations, using  no  greater  force  than  is  nec- 
essary. Landrigan  v.  State,  31  Ark.  50,  18 
A»t.  Ry.  Rep.  14.— Quoting  Com.  v.  Power, 
7  Meic.  (Mass.)  596;  Hall  v.  Power,  12 
Mete.  482  ;  Harris  v.  Stevens,  31  Vt.  79. 

A  railroad  company  has  a  right  to  make 
reasonable  regulations  in  regard  to  the  use 
of  its  stations,  such  as  ordering  that  hacks 
shall  not  stand  in  front  of  the  ladies' 
entrance.  It  may  also  order  a  person  not  a 
passenger  to  leave  the  inner  platform.  And 
it  has  a  right,  by  its  police  appointed  under 
Pa.  Act  of  Feb.  27,  1865,  to  enforce  such 
regulationc  and  such  order,  using  such  force 
as  is  necessary  for  the  purpose.  Smith  v. 
New  York,  L.  E.  6-  IV.  R.  Co.,  149  Pa.  St. 
249,  24  Atl.  Rep.  304. 

Railroad  corporations,  by  erecting  station 
houses  and  opening  them  to  the  public, 
impliedly  license  all  to  enter.  Still,  such 
license  is  revocable  as  to  all  except  those 
who  have  legitimate  business  there  growing 
out  of  the  road,  or  with  the  officers  or  em- 
ployes of  the  company.  As  to  persons 
having  no  business  at  the  station,  the  cor- 
poration has  the  right  to  direct  them  to  de- 
part, and  on  their  refusal  to  go  t  jey  may  be 
removed.  Harris  v.  Stevens,  31  Vt.  79. — 
Reviewing  White  River  Turnpike  Co.  v. 
Vermont  C.  R.  Co.,  3i  Vt.  590. — Quoted  in 
Landrigan  v.  State,  31  Ark.  50;  Pittsburgh, 
Ft.  W.  &  C.  R.Co.,  V.  Bingham,  29  Ohio  St. 
364- 

56.  innlceepers. — Where  an  inn- 
keeper or  his  agent,  in  violation  of  a  regula- 
tion of  a  company,  comes  upon  its  platform 
for  the  purpose  of  soliciting  patronage  for  his 
hotel,  he  may  be  ejected  by  the  servants  of 
the  company,  who  may  use  such  force  as  is 
necessary  for  ihat  purpose.    Landrigan  v. 

*  Right  of  railroad  companies  to  exclude  hack- 
men  from  station  grounds,  see  note,  50  Am.  & 
Eng.  R.  Cas.  g. 

Regulations  as  to  admission  of  passengers  and 
others  to  stations  or  grounds,  see  note,  16  L.  R. 
A.  449. 


State,  31  Ark.  50,  18  Am.  Ry.  Rep.  14. 
Com.  v.  Power,  7  Mete,  (Mass.)  596. — Re- 
viewed IN  Hicks  V.  Pacific  R.  Co.,  64  Mo. 
430. 

67. persons  selling  liinclies.— 

The  dominion  of  a  railroad  corporation 
over  its  trains,  tracks,  and  "  right  of  way  " 
is  no  less  complete  or  exclusive  than  that 
which  every  owner  has  over  his  own  prop- 
erty. Hence  the  corporation  may  exclude 
whom  it  pleases,  when  they  come  to  trans- 
act their  own  private  business  with  passen- 
gers or  other  third  persons,  and  admit 
whom  it  pleases,  when  they  come  to  trans- 
act such  business.  This  applies  to  selling 
lunches  to  or  soliciting  orders  from  passen- 
gers for  the  sale  of  lunches.  Fluker  v. 
Georgia  R.  &  B.  Co.,  38  Am.  6-  Eng.  R. 
Cas.  379,  81  Ga.  461,  8  S.  E.  Rep.  529,  2  L. 
R.  A.  843. 

V.  INJUBIES  CAUSED  BT  NEGLIGENCE. 

I.  At  and  around  Stations,  Generally. 

68.  Providing  suitable  acconimo- 
datious.'*'— It  is  the  duty  of  a  railroad 
corporation  to  furnish  reasonable  depot 
facilities  for  the  accommodation  of  the 
public  in  the  matter  of  transportation  and 
travel.  St.  Joseph  &>  D.  C.  R.  Co.  v.  Ryan. 
1 1  Kan.  602. 

In  the  absence  of  any  statutory  law,  a 
railroad  company  at  common  law  owes  a 
duty  to  the  people  to  provide  reasonable 
accommodations  at  its  stations.  People  v. 
New  York,  L.  E.  &  IV.  R.  Co.,  17  Abb.  N. 
Cas.  {N.  Y.)  304.— Quoting  McDonald  v. 
Chicago  &  N.  W.  R.  Co.,  26  Iowa  138. 
— McDonald  V.  Chicago  &*  N.  W.  R.  Co., 
26  Iowa  124.— Followed  in  McDonald  v. 
Chicago  &  N.  W.  R.  Co.  29  Iowa  170, 
Quoted  in  People  v.  New  York,  L.  E.  & 
W.  R.  Co.,  17  Abb.  N.  Cas.  304. 

50.  Providing  for  unusually  large 
crowds. — If  railroads  make  unusual  ef- 
forts, by  offering  low  rates  and  by  ex- 
tended advertisements,  to  secure  a  greater 
number  of  passengers  to  travel  over  their 

*  Liability  of  company  for  injury  to  passen- 
gers in  or  about  stations,  see  note,  i  L.  R.  A. 

157. 

Regulations  of  companies  concerning  gates 
and  gate-keepers  at  entrance  to  trains.  As- 
saults on  passengers  by  gate-keepers,  see  53 
Am.  &.  Eng.  R.  Cas.  169,  absir. 

Frightening  horses  at  station.  Measure  of 
damages,  see  56  Am.  &  Eng.  R.  Cas.  333, 
abstr. 


t 


STATIONS   AND   DEPOTS,  00-63. 


209 


lines  than  they  can  safely  and  reasonably 
care  for  at  their  ti,...iinal  points,  and  acci- 
dents follow,  they  must  answer  for  risks 
thus  assumed  ;  and  the  care  to  be  exercised 
in  caring  for  crowds  must  be  proportioned 
to  the  number  of  people.  Taylor  v.  Penn- 
sylvania Co.,  50  Fed.  Rep.  755. 

A  company  is  not  bound  to  provide  at  a 
station  (even  when  an  unusually  large  num- 
ber of  passengers  by  a  special  train  is  ex- 
pected) a  staff  of  servants  sufficient,  not 
merely  for  the  guidance  and  assistance  of 
passengers  and  the  preservation  of  order 
among  them,  but  adequate  to  control  the 
violence  of  an  assemblage  of  persons  enter- 
ing the  station  without  permission  and 
overcrowding  the  plitform.  Cannon  v. 
Midland  G.  IV.  A\  Co.,  6  L.J?.,  Ir.  199,  3 
Ry.  <S^  C.  T.  las.  xv. 

60.  Safe  buildings— Extraordinary 
storms. — A  railroad  company  is  not  liable 
for  injuries  occasioned  by  its  buildings  or 
structures  being  blown  down  by  storms, 
where  it  has  used  that  care  and  skill,  in 
their  structure  and  maintenance,  which 
men  of  ordinary  prudence  and  skill  usually 
employ;  and  it  is  error,  in  such  case,  to 
charge  the  jury  that  the  company  is 
"  bound  to  guard  against  all  storms  which 
can  reasonably  be  anticipated."  Pittsburgh, 
Ft.  W.  &>  C.  R.  Co.  v.  Brig  ham,  29  Oh- 
St.  374.— Approved  in  Moore  v.  Wabash, 
St.  L.  &  P.  R.  Co.,  84  Mo.  481. 

In  such  case  the  general  custom  of  pru- 
dent persons,  and  not  the  absolute  require- 
ments of  the  occasion,  is  the  true  standard 
by  which  the  company  should  be  tried.  It 
is  only  bound  to  come  up  ro  the  fair  aver- 
age of  careful  and  prudent  men.  Pitts- 
burgh, Ft.  W.  &*  C.  R.  Co.  V.  Brigham,  29 
Ohio  St.  374. 

61.  Degree  of  care  required.*— 
The  general  rule  is  that  companies  must 
make  their  station  grounds,  approaches  and 
platforms  safe,  or,  as  some  of  the  cases  put 
it,  reasonably  safe.  McDonald  v.  Chicago  &> 
y.  W.  R.  Co.,  26  Io2va  124 ;  Pennsylvania  Co. 
V.  Marion,  123  Ind.  415,  23  N.  E.  Rep.  973. 
Delaware,  L.  E.  &*  IV.  R.  Co.  v.  Trautwein, 
52  A'^.  /.  L.  169,  7  L.  R,  A.  435,  19  Atl.  Rep. 
197.  Collins  v.  Toledo,  A.  A.  <S-  N.  M.  R. 
Co.,  80  Mich,  igo,  45  N.  IV.  Rep.  178.  Moses 
V.  Louisville,  N.  O.  &-  T.  R.  Co.,  39  La.  Ann. 

*  Duty  of  company  to  keep  stations  in  proper 
condition  and  repair,  see  notes,  23  Am.  &  Eng. 
R.  Cas.  517  ;  8  /(/.  550. 

7  D.  R.  D.— 14 


649,  2  So.  Rep.  567.  Alexandria  6-  F.  R. 
Co.  v.  fferndon,  87  Va.  193,  12  S.  E.  Rep. 
289.  Texas  (S-  P.  R.  Co.  v.  Brown,  78  Tex. 
397.  14  S.  IV.  Rep.  1034,  Dillaye  v.  New 
York  C.  R.  Co.,  56  Barb.  (N.  Y.)  30.  Hul- 
bert  v.  New  York  C.  R.  Co.,\o  N.  Y.  145. 
Moore  v.  Wabash,  St.  L.  ilf*P.  R.  Co.,  Z\Mo. 
481-.  Cross  v.  Lake  Shore  &*  M.  S.  R.  Co., 
69  Mich.  363,  37  N.  W.  Rep.  361.  Hoffman 
v.  New  York  C.  <5-  H.  R.  R.  Co.,  75  N.  Y. 
605. 

Carriers  of  passengers  are  bound  simply  to 
exercise  ordinary  care  as  to  the  condition  of 
the  station  at  which  passengers  are  received, 
in  view  of  tlie  dangers  to  be  apprehended  ; 
and  whether  there  has  been  an  exercise  of 
such  care  depends  upon  the  circumstances 
of  the  case,  the  nature  of  the  road,  and  the 
character  of  the  traffic  and  place  where  the 
accident  occurred.  Falls  v.  San  Francisco 
&^  N.  P.  R.  Co.,  97  Cal.  114,  31  Pac.  Rep. 
901. 

Railroad  depot  grounds  and  passenger 
houses  are  quasi  public,  and  a  person  go- 
ing to  such  houses  and  passing  over  such 
grounds  in  a  proper  manner  is  not  a  tres- 
passer ;  but  where  persons  go  upon  or  pass 
over  the  grounds  connected  with  railroad 
depots,  they  are  presumed  to  know  that  the 
place  is  dangerous,  and  hence  are  required 
to  use  care  and  prudence  commensurate 
with  the  known  danger  of  the  place.  Illi- 
nois C.  R.  Co.  V.  Hammer,  72  ///.  347. 

On  the  other  hand,  the  servants  of  a  rail- 
road company,  knowing  the  enhanced  dan- 
ger at  depot  grounds  on  account  of  persons 
constantly  passing  and  repassing,  are  re- 
quired to  exercise  a  greater  degree  of  cau- 
tion and  prudence  for  the  preservation  of 
life  and  limb,  thaii  at  other  places  where 
persons  have  no  right  to  be,  and  the  em- 
ployes of  the  company  have  no  right  to  ex- 
pect to  find  them.  Illinois  C.  R.  Co.  v. 
Hammer,  72  ///.  347. 

62.  Warnings  and  signals  when 
train  is  approaching.— Where  a  com^ 
pany  erects  its  platform,  where  passengers 
step  to  and  from  trains,  on  one  side  of  the 
track  and  its  ticket  office  on  the  other, 
thereby  compelling  passengers  to  cross  the 
track,  the  company  ftiust  keep  a  careful 
lookout  for  persons  on  the  track.  It  is  the 
duty  of  those  in  charge  of  an  engine  ap- 
proaching such  a  station  at  a  high  rate  of 
speed,  just  before  a  passenger  train  is  due, 
to  slow  the  speed  and  give  necessary  warn- 
ing signals  ;  and  this  is  so,  though  the  sta* 


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210 


STATIONS   AiNIJ    DEPOTS,  03. 


tion  be  but  a  flag  station  in  a  small  village. 
Nichols  V.  Chesapeake,  O.  6-  S.  IV.  A'.  Co.. 
(Ky.)  2  S.  W.  Hep.  i8i. 

A  way  provided  by  the  company  over  its 
own  grounds,  for  a  passage  to  and  from  its 
depot,  is  not  a  "  traveled  public  road  or 
street,"  within  the  meaning  of  the  Missouri 
statute,  requiring  a  bell  to  be  rung  or  a 
whistle  sounded  on  locomotives  when  with- 
in eighty  rods  of  a  traveled  public  road  or 
street ;  and  where  a  person  is  injured  while 
on  such  way,  the  liability  of  the  company  is 
not  fixed  by  merely  showing  a  failure  to  give 
the  signal.  There  must  be  proof  of  actual 
negligence ;  but  evidence  of  a  failure  to 
give  the  signal  is  admissible  as  tending  to 
show  negligence.  Bauer  v.  Kansas  Pac, 
R,  Co.,  69  Mo.  219.— Followed  in  Hodges 
V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  2  Am.  & 
Eng.  R.  Cas.  190,  71  Mo.  50. 

But  whether  a  failure  to  give  such  sig- 
nals constitutes  negligence  is  a  question  for 
the  jury.  Hoi^es  v.  St.  Louis,  K.  C.  &*  N. 
H.  Co.,  2  Am.  &>  Eng.  R.  Cas.  190,  71  Mo. 
50. 

As  between  the  company  and  its  em- 
ployes, the  former  is  not  required  to  place 
a  light  upon  each  car  moved  at  night,  in 
making  up  or  distributing  trains  in  a  yard, 
nor  to  have  a  man  precede  such  cars  to  give 
warning  of  their  approach.  Crowe  v.  Neiv 
York  C.  <S-  H.  R.  R.  Co.,  70  Hun  37,  53 
N.  Y.  S.  R.  558,  23  N.  Y.  Supp.  1 100. 

A  train  was  run  along  a  side  track  at  a 
junction  station  at  the  rate  of  thirty  miles 
per  hour;  no  bell  was  rung  or  whistle 
blown,  and  no  means  adopted  to  warn  per- 
sons  on  the  side  track  of  danger.  The  side 
track  was  between  the  main  track  and  the 
depot,  and  had  to  be  crossed  by  passengers 
who  arrived  on  the  other  train,  which  was 
standing  on  the  main  track.  It  was  reason- 
ably to  be  anticipated  that  persons  would 
be  upon  the  side  track  and  in  danger  of  be- 
ing injured,  unless  properly  warned,  from 
trains  approaching  at  such  a  rate  of  speed. 
Held,  that  these  facts  show  negligence  on 
the  part  of  company.  Sanchez  v.  San  Anto- 
nio &*  A.  P.  R.  Co.,  3  Tex.  Civ.  App.  89,  22 
S.  W.  Rep.  242. 

Plaintiff  was  injured  on  station  grounds 
where  those  in  charge  of  the  train  knew  that 
adults  and  children  in  considerable  num- 
bers were  likely  to  be  passing.  The  acci- 
dent occurred  at  dusk,  and  the  lights  were 
set  on  the  train,  and  the  conductor  and 
brakemen  were  using  lighted  lanterns.    The 


train  was  moving  slowly  and  comparatively 
noiselessly.  It  was  a  long  train,  contain- 
ing forty  cars  or  more,  and  it  was  doubtful 
whether  any  signal  by  bell  or  whistle  was 
given.  The  injury  was  caused  by  the  cars 
backing  upon  plaintiff.  Held,  that  as  a 
matter  of  law,  defendant  was  guilty  of  negli- 
gence in  not  providing  a  proper  lookout  on 
the  train.  Whalen  v.  Chicago  Sf  N.  IV.  R. 
Co.,  41  Am.  <&*  Eng.  R.  Cas.  558,  75  Wis. 
654,  44  N.  IV.  Rep.  849.— Distinguishing 
Hogan  V.  Chicago,  M.  &  St.  P.  R.  Co.,  59 
Wis.  139.  Quoting  Townley  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  53  Wis.  626. 

Ont.  Railway  Act,  c.  66,  §  145,  requiring 
a  person  to  be  stationed  on  the  last  car  in 
the  train,  applies  to  the  station  grounds  of 
companies  in  cities,  towns,  and  villages,  as 
well  as  to  the  limits  outside  of  such  station 
grounds.  Bennett  v.  Grand  Trunk  R.  Co., 
13  Am.  &^  Eng.  R.  Cas.  627,  3  Ont.  446. 

03. before  starting  train.— The 

failure  to  ring  a  bell  or  blow  a  whistle  on 
the  starting  of  a  train,  as  required  by  the 
statute,  fixes  the  charge  of  negligence  on  a 
company,  and  any  one  injured  thereby  may 
recover  damages  for  the  injury,  unless  his 
own  negligence  or  fault  has  disabled  him 
from  making  complaint.  Memphis  &•  C. 
R.  Co.  V.  Copeland,  61  Ala.  376.— Applied 
in  Central  R.  &  B.  Co.  v.  Letcher,  12  Am. 
&  Eng.  R.  Cas.  115,  69  Ala.  106. 

Where  a  freight  car  is  standing  upon  a 
track,  separate  from  any  other  car  or  engine, 
and  the  yard  master  mounts  the  car  to 
loosen  the  brakes,  it  is  not  his  duty  to  give 
any  signal  before  the  brakes  are  loosed,  lest 
the  car  might  move,  when  he  has  no  reason 
to  suppose  any  person  would  be  endangered 
thereby,  although,  when  he  mounted  the 
car,  there  were  boys  near  the  car,  beside  the 
track.  Chicago  6^•  A.  R.  Co.  v.  McLaugh- 
lin, 47  ///.  265. 

Plaintiff,  a  boy,  found  his  approach  to  a 
station  cut  off  by  a  frieght  train  that  lay  on 
the  middle  one  of  three  tracks,  and  to  pass 
around  the  engine  it  was  necessary  to  go 
between  the  train  and  cars  that  were  stand- 
ing on  one  of  the  outside  tracks.  The 
tracks  were  parallel,  six  feet  and  ten  inches 
apart,  which  left  a  space  of  about  three  feet 
between  the  cars.  Before  plaintiff  was 
around  the  engine  the  train  started,  and  the 
evidence  tended  to  show  that  he  turned 
back  and  fell  so  as  to  throw  his  hand  on  the 
track,  causing  the  injury  sued  for.  Held, 
that  the  conductor  was  not   negligent  in 


STATIONS  AND   DEPOTS,  64-67. 


211 


starting  the  train  without  a  signal,  as  there 
was  nothing  to  show  that  the  boy  was  in 
danger  at  the  time.  Barkley  v.  Missouri 
Pac.  R.  Co.,  96  Mo.  367,  9  S.  W.  Rep.  793. 

The  starting  of  a  train  without  the  usual 
bell  ringing  or  whistle  sounding,  from  a  flag 
station  on  a  railway  where  trains  do  not 
usually  stop  unless  signaled,  whereby  one 
who  had  left  the  train  during  its  temporary 
stopping  at  midnight  was  injured  in  the  ef- 
fort to  return  to  it,  is  not  negligence  per  se. 
Whether  negligence  did  in  fact  exist  is  for 
the  jury.  Galveston,  H.  &•  H.  R.  Co.  v. 
Cooper,  70  Tex.  67,  8  S.  W.  Rep.  68. 

Apart  from  the  statute,  care  must  be 
taken  when  starting  engines  from  stations. 
Bennett  v.  Grand  Trunk  R.  Co.,  13  Am.  &* 
Eng.  R.  Cas.  627,  3  Ont.  446.— APPLYING 
Bender  v.  Canada  Southern  R.  Co.,  37  U. 
C.  Q.  B.  25. 

64.  Watcliiimu  at  station. — The  faiU 
ure  to  keep  a  watchman  at  a  station  which 
is  passed  without  stopping,  and  a  rate  of 
speed  of  six  miles  or  more  per  hour,  are  not 
negligence  per  se,  though  they  may  be  evi- 
dence of  negligence.  Latty  v.  Burlington, 
C.  R.  &*  M.  R.  Co.,  38  Iowa  250. 

65.  Sudden  backiuK  of  cars  against 
cars.  —  Plaintiff's  husband  was  one  of  a 
gang,  unloading  freight  for  an  elevator 
company  from  cars  on  defendant's  track ; 
he  was  injured  by  the  unexpected  backing 
of  other  cars  on  an  adjacent  track  near 
which  h:  was  standing  while  an  unloaded 
car  was  being  weighed.  Held,  that  the 
sudden  backward  movement  of  the  cars, 
without  warning,  under  the  circumstances, 
was  evidence  of  defendant's  negligence ; 
and  that  the  question  of  plaintiff's  exercise 
of  ordinary  care  was  also  one  of  fact. 
Spotts  V.  Wabash  Western  R.  Co.,  in  Mo. 
380.  20  S.  W.  Rep.  190. 

Where  the  direct  and  usual  path  to  a 
depot  lies  over  a  switch  on  which  freight 
cars  often  stood  with  an  opening  between 
two  of  them,  so  as  to  leave  the  path  unob- 
structed, and  this  path  is  habitually  used 
by  the  patrons  and  employes  of  th?  com- 
pany with  the  knowledge  and  without  the 
disapproval  of  the  officials,  it  may  be  as- 
sumed that  the  company  invites  persons 
having  business  at  the  depot  to  use  the 
path  between  the  cars ;  and  in  using  it  for 
that  purpose,  such  persons  are  not  guilty 
per  se  of  negligence,  and  if  by  a  sudden, 
unsignalcd  act  vf  the  company's  servants 
the  cais  arc  run  together,  thereby  crushing 


such  a  person,  the  company  is  liable. 
Nichols  V.  Washington,  O.  &•  W.  R.  Co.,  32 
Am.  &>  Eng.  R.  Cas.  27,  83  Va.  99,  5  Am. 
St.  Rep.  257,  s  S.  E.  Rep.  171.— QUOTED  IN 
Stewart  v.  Cincinnati,  W.  &  M.  R.  Co.,  89 
Mich.  315;  Woolwine  v.  Chesapeake  &  O. 
R.  Co.,  36  W.  Va.  329. 

66.  Injuries  caused  by  trucks  on 
Iilatform.*  —  The  rules  applicable  to  in- 
juries caused  by  locomotives  and  cars  do 
not  apply  to  injuries  caused  by  moving  a 
truck  on  a  station  platform.  Palmer  v. 
Piatt,  27  Hun  (N.  V.)  534;  affirmed  in  98 
A^.  Y.  628. 

The  giving  of  warning  is  not  the  only 
duty  of  him  who  draws  a  truck.  He  must 
move  it  carefully  and  prudently  upon  the 
platform  so  as  not  needlessly  to  expose  any 
one  to  danger ;  and  he  should  also  be  con- 
stantly upon  the  alert  not  to  strike  those 
who  for  any  reason  are  not  aware  of  their 
danger.  Palmer  v.  Piatt,  27  Hun  {N.  Y.) 
534 ;  affirmed  in  98  N.   Y.  628. 

67.  Injuries  while  loading  or  un- 
loading cars. — Where  cars  have  been  run 
out  on  a  side  track  to  be  unloaded,  a  company 
is  guilty  of  negligence  in  allowing  other 
cars  to  be  thrown  violently  against  them, 
without  warning,  whereby  a  teamster  en- 
gaged in  unloading  is  injured ;  and  the 
company  cannot  escape,  liability  because  its 
employes  did  not  know  that  any  one  was 
unloading.  After  the  cars  were  placed  in  a 
position  for  unloading,  the  employes  had 
reason  to  anticipate  that  some  one  might 
be  there,  and  should  have  exercised  proper 
care.  Watson  v.  Wabash,  St.  L.  6-  P.  R. 
Co.,  19  Am.  &*  Eng.  R.  Cas.  114,  66  Iowa 
164,  23  A^.  W.  Rep.  380. 

The  evidence  tended  to  show  that  plain- 
tiff's horse  and  dray,  with  a  load  of  lumber 
for  shipment,  were  sent  to  ..  station,  and 
the  driver  asked  the  agent  where  he  should 
deliver  the  load,  and  was  directed  to  a  side 
platform.  The  track  at  the  place  was  in  a 
cut,  and  a  side  track  was  laid  so  near  the 
platform  that  a  horse  and  dray  could  not  be 
driven  by  the  side  of  the  platform  without 
being  partly  on  the  track.  While  in  this 
position  the  horse  was  killed  by  a  passing 
train.  Held,  that  the  evidence  was  suf- 
ficient to  sustain  a  verdict  for  plaintiff. 
Foss  v.  Chicago,  M.  <S-  St.  P.  R.  Co.,  if)  Am. 
&*  Eng.  R.  Cas.  112,  33  Minn.  392,  23  N. 
W.  Rep.  553. 

*  See  also  Carriage  of  Passengers,  277* 


I 

1 


I 


212 


STATIONS  AND   DEPOTS,  08-71. 


Plaintiff  was  engaged  in  unloading  grain 
from  defendant's  cars  into  a  boat.  A  canvas 
was  placed  between  the  cars  and  the  boat 
to  catch  falling  grain.  After  some  cars  had 
been  unloaded  plaintiff  was  spreading  the 
canvas  for  the  next  car  when  the  train 
started  and  caught  his  arm  and  severely  in- 
iured  it.  The  evidence  tended  to  show  that 
the  cars  were  started  without  notice  by  bell 
or  whistle,  and  that  plaintiff  had  not  time 
or  opportunity  to  escape.  Held,  that  the 
question  of  defendant's  negligence  was  for 
the  jury.  Barton  v.  New  York  C.  «5^  H.  R. 
R.  Co.,  1  r.&^  C.  (iV.  y.)  297  ;  affir.ned  in 
56  A^.  Y.  660,  mem.  —  DiSTiNUUiSHL)  in 
Murphy  v.  New  York,  L.  E.  &  VV.  R  Co., 
42  N.  y.  S.  R.  580. 

(i8.  Iiyiiry  caused  by  tliiiifir!^  tliruwu 
fruiii  cur.*— Plaintiff,  while  lawfully  pass- 
ing along  a  passenger  platform  to  a  depot 
to  ascertain  the  lime  of  departure  of  a  train, 
was  struck  and  injured  by  a  piece  of  timber, 
thrown  from  a  box  car  which  the  employes 
of  the  company  were  unloading,  he  having 
no  previous  warning  of  danger,  //eld,  that 
the  company  was  liable.  Toledo,  IV,  &*  IV, 
/i.  Co.  V.  Maine,  67  ///.  298. 

Plaintiff's  intestate  went  upon  a  depot 
platform  to  get  a  paper  from  the  train  news- 
boy, and  was  hit  and  killed  by  the  mail 
agent  throwing  the  sacks  from  the  train, 
which  was  running  at  a  high  and  unlawful 
rate  of  speed.  It  appeared  that  the  com- 
pany regularly  permitted  train  boys  to  sell 
papers  from  the  platform,  //eld,  that  the 
company  was  liable.  O/ti'o  &*  J/.  A'.  Co,  v. 
.'ii'mms,  43  ///.  App.  260.  — Revikwing  Car- 
penter V.  Boston  &  A.  R.  Co.,  97  N.  Y.  494. 
UO.  Projections  I'roiii  p  a 8  s  i  11  {; 
iraiii8.f  —  Plaintiff  was  on  an  elevated 
plank  walk  alongside  of  a  track,  constructed 
by  the  company  i')r  the  use  of  passengers, 
and  hearing  a  train  approaching  from  be- 
hind, stepped  to  the  middle  «f  the  walk, 
where  he  would  have  been  safe  from  ordi- 
nary trains ;  but  the  approaching  train  was  a 
construction  train,  witii  brakes  at  the  side. 
A  brake  wheel  struck  plaintiff,  inflicting  the 
injuries  sued  for.  //e/d:  (1)  that  he  had  a 
right  to  be  on  the  walk  and  to  suppose  him- 


*  See  .ilso  Caurtace  of  Mails,  7;  Carriacje 
OF  Passfnc.kks,  278. 

f  When  passenger  may  recover  (or  injuries 
received  by  cars  wliieh  projected  over  platform 
striking  him,  see  33  Am.  &  Eng.  R.  Cas.  510, 
aistr. 


self  safe  when  beyond  danger  from  ordinary 
trains ;  (2)  that  the  train  employes  were 
guilty  of  negligence  in  not  guarding  against 
injury  after  seeing  him  and  knowing  the 
danger.  Sullivan  v.  Viclcsburg,  S.  (S>»  P,  /i. 
Co.,  39  La.  Ann.  800,  2  So.  Kep.  586. 

Plaintiff,  a  stranger  in  the  place,  arrived 
at  a  union  depot  after  dark,  over  one  road, 
walked  across  the  station  platform,  and  was 
struck,  while  standing  near  the  edge  of  the 
platform  looking  for  a  cab  to  depart  in,  by 
defendant's  train,  which  passed  rapidly  with- 
out signals  on  a  track  which  plaintiff  did 
not  know  existed,  and  which  was  so  near 
the  platform  as  to  allow  the  cars  to  overlap 
it  several  inches,  /ield,  that  he  had  a  right 
to  assume  that  the  platform  was  a  safe  and 
proper  place;  and  that  there  was  sufficient 
evidence  of  negligence  to  justify  a  submis- 
sion of  the  case  to  the  jury,  and  to  sustain  a 
verdict  for  plaintiff.  Arclier  v.  Neiu  York, 
N.  /I.  Sf  //.  A'.  Co.,  106  A^.  Y.  589,  13  iV.  £•. 
AV/.  318, 1 1  A^.  Y.  S.  A\  32,  885,  9  Cent.  Rep. 
233 ;  affirming;  36  //un  644,  mem. 

70.  Moveuieut  of  trains  according 
to  time-table.— It  is  impossible  for  a 
company  to  move  its  trains  according  to  a 
time-table,  when  being  made  up,  or  when 
being  broken  up;  but  it  is  practicable  to 
prescribe  in  what  manner  engineers  and 
conductors  shall  give  notice  of  the  approach 
of  an  engine,  with  or  without  cars,  when 
trains  are  being  made  up,  or  moving  about 
freight  houses,  depots,  or  engine  houses. 
If  proper  precautions  are  not  taken,  a  per- 
son, not  an  employe,  who  is  injured  by  such 
engines  or  oars,  is  entitled  to  recover.  I/as- 
kin  V.  New  York  C.  &*  II.  A'.  A'.  Co.,  65  Barb. 
(N.  Y.)  129;  affirmed  in  56  N.  Y.  608,  mem. 

71.  Stunibling  over  frcigiit  piled 
on  platform.*— At  flag  stations  forsparse- 
ly  settled  districts,  railroad  companies  have 
the  right  to  use  the  same  platform  for 
freight  and  for  passengers,  and  if  they  use 
ordinary  and  reassnablc  aare  to  allow  suffi- 
cient room  for  passengers,  they  are  not 
liable  for  an  unfsreseen  accident  to  a  pas- 
senger from  stumbling  over  freight,  in  broad 
daylight,  which  could  not  have  been  reason- 
ably anticipated ;  and  a  verdict  in  favor  of 
the  person  injured  will  be  set  aside  as 
against  evidence,  where  the  evidence  clearly 
shows  that  ordinary  care  was  used  by  the 
company,  and  that  it  could  net  have  rea- 


*  Stc  also  Carriage  of  Passengers,  205- 
••80. 


STATIONS   AND   DEPOTS,  72,  73. 


213 


sonably  anticipated  the  accident.  Falls  v. 
San  Francisco  &•  N.  P.  R.  Co.,  97  Cal.  114, 
31  Pac.  Rep.  901.— Reviewing  Cornman  v. 
Eastern  Counties  R.  Co.,  4  H.  &  N.  781 ; 
Stokes  V.  Suffolk  &  C.  R.  Co.,  107  N.  Car. 
178. 

72.  Liability  when  pcrHuu  is  bit- 
ten by  dog. — A  railway  company  is  not 
liable  to  a  person  bitten  by  a  dog  at  a  station 
where  the  dog  was  not  owned  by  the  com- 
pany, and  was  not  seen  by  its  servants  until 
immediately  before  the  accident.  Smith  v. 
Great  Eastern  R.  Co.,  id  L.J.  C.P.  22,  15 
W.  /i'.  131,  IS  Z.  T.  246,  L.  R.  2  C.  P.  4. 

73.  Duty  to  licensees.*— Where  it  is 
the  practice  of  consignees  of  coal  to  assist 
in  unloading,  a  consignee  who,  with  the 
permission  of  the  station  master,  goes  to 
his  wagon,  which  was  sliunted  in  the  usual 
place,  is  not  a  mere  licensee,  and  is  entitled 
to  require  that  the  premises  shall  be  in  a 
reasonably  safe  condition.  Holmes  v.  North 
Eastern  R.  Co.,  L.  R.  6  Ex.  123, 40  L.  J.  Ex. 
121,  24  Z.  7".  69  ;  affirming  L.  R.  4  Ex.  254, 
38  Z. /.  Ex.  161,  20  Z.  T.  616,  17  IV.  A'. 
800.— Followed  in  Wright  v.  London  & 
N.  W.  R.  Co.,  33  L.  T.  830.  L.  R.  1  Q.  B. 
D.  252,  45  L.  J.  0-  B.  570. 

Plaintiff,  without  having  procured  a 
ticket,  was  crossing  a  side  track,  in  the 
night,  to  get  upon  a  passenger  train  at  its 
usual  stopping  place,  on  the  main  track; 
but  by  the  negligence  of  the  employes  of 
the  company,  a  switch  had  been  left  open, 
and  the  train  was  thrown  upon  the  sHe 
track,  and  ran  against  plaintiff  and  broke 
his  leg.  Held:  (i)  That  he  was  nota  passen- 
ger at  the  time  of  the  injury.  (2)  That  he 
had  the  same  right  to  cross  the  side  track 
as  l.e  did  that  persons  have  to  cross  a  rail- 
road upon  a  public  street  or  highway.  (3) 
The  company  having  the  legal  right  to  run 
its  train  upon  the  side  track,  it  is  imma- 
terial whether  it  was  run  upon  that  track  by 
accident  or  design,  if  run  with  due  care. 
No  greater  care  would  be  required  in  case 
of  such  accident  than  if  the  train  were 
thrown  upon  the  track  by  design.  (4)  If  the 
train,  in  running  upon  the  side  track,  was 
managed  with  due  care,  the  plaintiff  cannot 
recover.  Indiana  C.  R.  Co.  v.  Hudelson,  13 
Ind.  325. 

A  foot  traveler  upon  a  highway  in  the 
evening,  who   for  the  sake  of  reaching  a 


*  See  also  Carriage  of  Passengkks,  80- 

V  1. 


connecting  highway  by  a  short  cut  enters 
upon  the  uninclosed  grounds  and  platform 
of  a  railway  station,  and  while  walking  along 
the  platform  Is  injured  by  falling  into  an 
unguarded  hole  made  by  the  raising  of  a 
trap  door  forming  part  of  the  platform  and 
opening  upon  the  cellar  steps  of  ihe  station 
building  is  a  mere  licensee,  and  cannot  re- 
cover from  the  company.  Redigan  v.  Bos- 
ton &'  M.  R.  Co.,  155  Mass.  44,  2Z  N.  E. 
Rep.  1 133. 

Where  several  intervening  tracks  between 
a  station  and  the  business  part  of  a  town 
liavc  been  leveled  up  with  cinders  so  as  to 
make  a  smooth  crossing,  over  which  the 
railroad  oflicials  and  the  public  continually 
pass  in  going  to  and  from  the  station,  there 
being  no  other  convenient  passageway,  per- 
sons who  are  injured  by  a  train  while  cross- 
ing such  tracks  cannot  be  held  to  be  on  the 
right  of  way  by  permission  only,  but  are 
there  at  the  invitation  of  the  company  ;  and 
it  is  the  duty  of  the  company  to  exercise 
extraordinary  diligence  in  the  management 
of  its  trains  at  such  crossing.  Louisville, 
N.  O.  &•  T.  R.  Co.  V.  Hirsch,  56  Am.  <S- 
Eng.  R.  Cas.  291,  69  Miss.  126,  13  So.  Rep. 
244. 

Where,  by  means  of  an  inducement  or  in- 
vitation, expressed  or  implied,  held  out  to 
the  public  by  it,  a  company  leads  the  public 
to  use  a  crossing  or  way  over  its  track  in 
passing  to  and  from  its  depot  grounds,  it  Is 
bound  to  keep  such  crossing  or  way  reason- 
ably safe  for  travel.  Moore  v.  Wabash,  St, 
L.  6-  P.  R.  Co.,  84  Mo.  481.— Approving 
Sweeny  v.  Old  Colony  &  N.  R.  Co.,  10 
Allen  (Mass.)  368 ;  Latham  v.  Roach,  72 
111.  179;  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v. 
Brigham,  29  Ohio  St.  374;  Vanderbeck  v. 
Hendry,  34  N.  J.  L.  467  ;  Illinois  C.  R.  Co. 
V.  Godfrey,  71  111.  500.— Followed  in  Row- 
land V.  Missouri  Pac.  R.  Co.,  20  Mo.  App. 
^e^.— Chicago  &*  I.  C.  R.  Co.  v.  De  Baum, 
2  Ind.  App.  281,  28  N.  E.  Rep.  447. 

A  company  is  not  liable  for  an  injury  to  a 
person  resulting  from  its  failure  to  exercise 
ordinary  skill  and  care  in  the  erection  or 
maintenance  of  its  station  house,  where,  at 
the  time  of  receiving  the  injury,  such  per- 
son was  at  such  station  house  by  mere  per- 
mission and  sufferance,  and  not  for  the  pur- 
pose of  transacting  any  business  with  the 
company  or  its  agents,  or  on  any  business 
connected  with  the  operation  of  the  road. 
Pittsburgh,  Ft.  W.  &•  C.  R.  Co.  v.  Bingham. 
29  Ohio  St.  364.— Distinguishing  Tobin 


! 


214 


STATIONS  AND   DEPOTS,  74,  76. 


H' I  ''■ 


V.  Portland,  S.  &  P.  R.  Co.,  59  Me.  183; 
Toledo.  W.  &  W.  R.  Co.  v.  Crush.  67  111. 
262.  Quoting  Harris  v.  Stevens,  31  Vt. 
90;  Sweeny  v.  Old  Colony  &  N.  R.  Co.,  10 
Allen  (Mass.)  372.  Reviewing  Nicholson 
V.  Erie  R.  Co.,  41  N.  Y.  525  ;  Gillis  v.  Penn- 
sylvania R.  Co.,  59  Pa.  St.  129.-QUOTED  IN 
Lary  v.  Cleveland,  C,  C.  &  I.  R.  Co.,  3  Am. 
&  Eng.  R.  Cas.  498,  78  Ind.  323,  4'  Am. 
Rep.  572;  Omaha  &  R.  V.  R.  Co.  w.  Mar- 
tin, 19  Am.  &  Eng.  R.  Cas.  236, 14  Neb.  295. 
Reviewed  in  Woolwine  v.  Chesapeake  & 
O.  R.  Co.,  so  Am.  &  Eng.  R.  Cas.  37,  36  W. 
Va.  329,  15  S.  E.  Rep.  81;  Harriman  v. 
Pittsburgh,  C.  &  St.  L.  R.  Co.,  32  Am.  & 
Eng.  R.  Cas.  37,  45  Ohio  St.  11. 

The  platform  of  a  railroad  at  a  station  is 
not  a  public  highway ;  therefore  mere  sight- 
seers, who  resort  to  a  platform  to  see  a  dis- 
tinguished person  pass,  and  break  it  down, 
cannot  recover  of  the  company  for  the  in- 
jury thereby  received.  Gillis  v.  Pennsyl- 
vania R.  Co.,  59  Pa.  St.  129.— Distin- 
guished IN  Keffe  V.  Milwaukee  &  St.  P.  R. 
Co.,  21  Minn.  207;  Kay  r*.  Pennsylvania  R. 
Co.,  65  Pa.  St.  269.  Followed  in  Jefferson- 
ville,  M.  &  i.  R.  Co.  v.  Goldsmith,  47  Ind. 
43  ;  Baltimore  &  O.  R.  Co.  v.  Schwindiing,  8 
Am.  &  Eng.  R.  Cas.  544,  loi  Pa.  St.  258. 
Quoted  in  Hicks  w.  Pacific  R.  Co.,  64  Mo. 
430 ;  Woolwine  v.  Chesapeake  &  O.  R.  Co., 
36  W.  Va.  329.  Reviewed  in  Pittsburgh,  Ft. 
W.  &  C.  R.  Co.  V.  Bingham,  29  Ohio  St.  364 ; 
Davis  7/.  Chicago  &  N.  W.  R.  Co.,  15  Am.  & 
Eng.  R.  Cas.  424,  58  Wis.  646,  46  Am.  Rep. 
667  ;  Griswold  v.  Chicago  &  N.  W.  R.  Co.,  23 
Am.  &  Eng.  R.  Cas.  463,  64  Wis.  652. 

74. ft-iends  or  relatives  of  pas- 
senger.*—An  old  lady  went  to  a  station 
to  assist  friendi,,  who  intended  to  remove 

from  the  r  ■  >  _rnianently,toget  to  the 

station,  ^  A  1  ,..  1  'p-'^  then  about  to  de- 
part .  I ;  ftf.!  bid  ;'!!.  !;cr  friends  good-bye, 
and  ai  ,r  it  ?y  bai"  j  01  n^an  the  train,  stood 
for  about  fi  p  '■•'•  1  '■  .n  the  station  plat- 
form to  sec  tt.t;  uciii  i.ut,  and  to  bid  her 
friends  a  last  farewell.  Held,  that  she  was 
not  guilty  of  such  culpable  contributory 
negligence  as  would  prevent  her  from  re- 
covering for  the  injuries  sustained  by  her 
through  the  negligence  of  the  company. 
Atchison,  T.  &»  S.  F.  R.  Co.  v.  Johns,  34  Am. 
&*  Eng.  R.  Cas.  480,  16  Kan.  769,  14  Pac. 
Rep.  237. 

*See  also  Carriage  of  Passengers,  90, 
91. 


A  man  went  to  a  depot  to  meet  his  wife, , 
and  having  occasion  to  seek  a  retired  spot, 
no  special  resort  being  provided,  he  stepped 
ofl  the  walk,  in  the  darkness,  upon  a  portion 
of  the  depot  grounds,  and  fell  into  a  hole. 
Held,  that  he  was  a  customer  of  the  com- 
pany and  not  a  trespasser,  and  that  he 
could  maintain  an  action  against  the  com- 
pany for  the  injury.  McKone  v.  Afichigan 
C.  R.  Co.,izAm.&' Eng. R.  Cas. 29,  5 1  Mich. 
601.  17  A^.  W.  Rep.  74,  47  Am.  Rep.  596.  — 
Reviewed  in  Montgomery  &  E.  R.  Co.  v. 
Thompson,  77  Ala.  448,  54  Am.  Rep.  72. 

A  company  is  under  special  duty  to  per- 
sons who  come  upon  its  premises  for  the 
purpose  of  doing  business  with  it  as  a  com- 
mon carrier  to  provide  suitable  and  safe 
accommodations  with  regard  to  its  depot. 
The  company  is  under  like  obligations  to 
"  persons  who  are  on  the  premises  to  wel- 
come the  coming  or  speed  the  parting 
guest."  Hamilton  v.  Texas  &»  P.  R.  Co., 
21  Am.  &•  Eng.  R.  Cas.  336,  64  Tex.  251.— 
Followed  in  Texas  &  P.  R.  Co.  v.  Best, 
66  Tex.  116. 

If  the  infirmities  of  passengers  require 
the  assistance  of  others  to  see  them  safely 
on  the  train,  servants  or  friends  attending 
them  for  that  purpose  are  under  an  in- 
vitation of  the  company  as  direct  as  that 
given  passengers  themselves.  Hamilton  v. 
Texas  6-  P.  R.  Co.,  21  Am.  6-  Eng.R.  Cas. 
336,  64  Tex.  251.— Reviewing  Tobin  v. 
Portland,  S.  &  P.  R.  Co.,  59  Me.  183. 

75. trespassers.* —Where  a  com- 
pany so  locates  its  station  as  to  require 
persons  approaching  it  from  the  main  busi- 
ness portion  of  the  towi  to  cross  several 
tracks  which  are  kept  smooth  for  pedes- 
trians and  without  any  well-defined  cross- 
ings, this  is  tantamount  to  an  invitation  to 
such  persons  to  cross  at  any  point  near  the 
station,  and  persons  so  crossing  are  not 
trespassers.  Louisville,  N.  O.  &*  T.  R.  Co. 
V.  Hirsch,  69  Miss.  126,  13  So.  Rep.  244. 

Under  such  circumstances  the  company 
will  be  held  to  the  utmost  caution  in  the 
movement  of  its  trains  on  such  tracks  to 
prevent  injury  to  persons  so  crossing. 
Louisville,  N.  O.  <S-  T.  R,  Co.  v.  Hirsch,  69 
Miss.  126,  13  So.  Rep.  244. 

PlaintiiT  sued  for  personal  injuries.  The 
evidence  showed  that  he  was  in  a  switch- 
yard and  on  a  track  in  advance  of  a  stand- 


*See  also  Carriage  of  Passengers,  92- 
96. 


STATIONS  AND   DEPOTS,  76. 


215 


ing  car  which  was  moved  by  being  struck  by 
other  cars.  It  was  at  a  place  where  employes 
of  the 'company  had  no  reason  to  expect 
persons,  and  especially  so  at  the  time  (half- 
past  4  A.M.).  The  morning  was  foggy,  and 
it  was  not  shown  that  the  employes  were 
wanting  in  due  care.  Held,  that  a  verdict 
and  judgment  for  defendant  cannot  be  set 
aside  as  against  the  evidence.  Bradley  v. 
San  Antonio  &*  A.  P.  R.  Co.,  8o  Tex.  84, 16 
S.  IV.  Rep.  55. 

2.  Platforms. 

76.  Duty  to  provide  and  maintain 
safe  and  suitable  platforms.*  —  Rail- 
road companies  are  bound  to  keep  in  a  safe 
condition  all  portions  of  their  platforms  and 
approaches  thereto  to  which  the  public  do, 
or  would  naturally,  resort,  and  all  portions 
of  their  station  grounds  reasonably  near  to 
the  platforms  where  passengers,  or  those 
who  have  purchased  tickets  with  a  view  to 
take  passage,  would  naturally  be.  Green  v, 
Pennsylvania  R.  Co.,  36  Fed.  Rep.  66. — Fol- 
lowing McDonald  v.  Chicago  &  N.  W.  R. 
Co.,  26  Iowa  124. — McDonald  V,  Chicago  &* 
N.  W,  R.  Co.,  26  Iowa  124.  Pennsylvania 
Co.  v.  Marion,  123  Ind.  415,  7  L.  R.  A.  687, 
23  N.  E.  Rep.  973.  —  Quoting  Louisville, 
N.  A.  &  C.  R.  Co.  V.  Lucas,  119  Ind.  583; 
Lucas  V.  Pennsylvania  Co.,  120  Ind.  205. — 
White  V.  Cincinnati,  N.  0.  &*  T.  P.  R.  Co., 
42  Am.  (S-  Eng.  R.  Cas.  547,  89  Ky.  478,  12 
S.  W.  Rep.  936.  Stafford  v.  Hannibal  S^ 
St.  J.  R.  Co.,  22  Mo.  App.  333. — Quoting 
Gaynor  v.  Old  Colony  &  N.  R.  Co.,  100 
Mass.  2\ I.  — Union  Pac.  R.  Co.  v.  Sue,  25 
Neb.  772,  41  A^.  W.  Rep.  801.  Skottowe  v. 
Oregon  S.  L.  6-  i/.  N.  R.  Co..  51  Am.  <S- 
Eng.  R.  Cas.  444,  22  Oreg.  430,  30  Pac.  Rep. 
222, 16  L.  R.  A.  593. 

And  if  passengers  are  discharged  after 
dark  it  must  provide  lights.  Louisville,  N. 
A.  &*  C.  R.  Co.  v.  Lucas,  119  Ind.  583, 
21  JV.  E.  Rep.  968.— Quoted  in  Pennsyl- 
vania Co.  V.  Marion,  123  Ind.  415. 

If  a  station  room  is  full,  or  if  it  is  intolera- 
bly offensive,  by  reason  of  tobacco  smoke, 
so  that  a  female  passenger  has  good  reason 
for  not  remaining  there,  it  will  justify  her 
endeavor  to  enter  the  cars  at  as  early  a 

*  Duty  of  railroad  to  furnish  safe  approaches, 
platforms,  etc.,  see  notes,  3  L.  R.  A.  74  ;  7  Id. 
III.     Duty  to  light,  see  6  la.  193. 

Liability  of  company  (or  injury  caused  by  de- 
fective platforms,  see  notes,  3  L.  R.  A.  76 ;  11 
/</.  721, 


period  as  possible, especially  if  it  is  dark  and 
cold  without,  if  in  so  doing  she  uses  proper 
care  and  violates  no  rule  or  regulation  of 
the  company  of  which  she  has  actual  knowl- 
edge, or  which,  as  a  reasonable  person,  she 
would  be  bound  to  presume  existed.  Mc- 
Donald  V.  Chicago  &*  N.  W.  R.  Co..  26 
Iowa  124.— Followed  in  Green  v.  Penn- 
sylvania R.  Co.,  36  Fed.  Rep.  66.  Quoted 
IN  Alexandria  &  F.  R.  Co.  v.  Herndon,  87 
Va.  193.  Reviewed  in  Moses  v.  Louis- 
ville, N.  O.  &  T.  R.  Co.,  30  Am.  &  Eng.  R. 
Cas.  556,  39  La.  Ann.  649,  2  So.  Rep.  567. 

To  render  a  company  liable  for  an  injury 
to  a  passenger  which  resulted  from  leaving 
its  station  platform  in  an  unsafe  condition, 
it  is  not  necessary  that  precisely  such  an  ac- 
cident as  actually  occurred  might  be  antici- 
pated, for  the  company  is  liable  if  it  is  prob- 
able that  some  injury  might  result  from 
such  negligence.  Louisinlle,  N.  A.&'  C.  R. 
Co.  V.  Lucas,  119  Ind.  583,  21  N.E.  Rep.  968. 

Where  a  company  has  a  platform  and 
other  facilities  for  entering  and  leavingcars 
with  safety  on  the  depot  side  of  the  track, 
the  failure  to  have  the  opposite  side  likewise 
prepared  as  a  place  for  entering  and  leaving 
the  cars  cannot  be  regarded  as  negligence  ; 
the  company  may  select  and  adhere  to  such 
arrangement  of  depots  and  platforms  as  it 
sees  fit,  if  those  it  makes  are  safe  and  com- 
modious. Michigan  C,  R.  Co.  v.  Coleman, 
28  Mich.  440, 1 2  Am.  Ry.  Rep.  59, 

A  company  having  a  telegraph  office  in 
one  of  its  stations,  open  to  the  public,  is  re- 
sponsible to  one  of  its  passengers  who  is 
injured  through  the  company's  negligence 
alone,  while  going  to  the  telegraph  office 
over  the  structure  or  platform  by  which  it 
is  made  accessible.  Clussman  v.  Long  Island 
R.  Co.,  9  Hun  (N.  V.)  618 ;  affirmed  (f)  in 
73  A^.  V.  606,  w«rw.— Applying  Hulbert  v. 
New  York  C.  R.  Co.,  40  N.  Y.  145. 

If  a  company,  instead  of  furnishing  a  plat- 
form on  which  passengers  may  alight,  fur- 
nishes but  a  small  box,  it  is  its  duty  to 
render  such  assistance  to  passengers  as  will 
make  the  box  as  safe  as  a  platform.  Mis- 
souri Pac.  R.  Co.  V.  JVortham,  37  Am.  &» 
Eng.  R.  Cas.  82,  73  Tex.  25,  3  L.  R.  A.  368, 
10  S.  W.  Rep.  741. 

Proof  that  a  company  failed  to  furnish  a 
platform  for  the  use  of  passengers,  but  used 
a  box  only  eleven  inches  square  on  the  top 
and  a  little  larger  at  the  bottom,  justifies 
the  jury  in  finding  that  the  company  has 
failed  to  furnish  sufficient  platform  accom- 


1.^ 


1 


216 


STATIONS  AND   DEPOTS,  77. 


!( 
1 

'               il 

'■i 

.     i 

-' 

% 

[■'i:' 

u  .. 

modations.  And  this  is  so  reg;inllcss  of  the 
time  such  box  has  been  used  or  the  number 
of  persons  who  had  used  it,  or  the  amount 
of  expert  testimony  as  to  its  safety.  Mis- 
souri Pac.  R.  Co.  V.  IVortham,  37  Am.  &* 
Eng.  A\  Cas.  82.  7i  Tex.  2$,  3  L.  R.  A.  368, 
10  5.  IV.  Rep.  741. 

If  it  be  shown  that  plaintifl  was  careful 
and  was  injured  in  the  attempt  to  get  of!  a 
platform  negligently  constructed  and  badly 
lighted,  and  if  a  person  would  njiturally  get 
ofl  the  platform  at  the  place  plaintiff  did, 
then  he  should  recover.  Texas  i5^  P.  R. 
Co.  V.  Brown,  78   Tex.  397,  14  S.   VV.  Rep. 

1034- 

An  accident  occurred  at  night  during  a 
snowstorm.  It  was  intensely  dark,  and  the 
platforms  of  the  cars  were  covered  with 
snow.  Plaintifl,  a  female,  was  unattended 
and  encumbered  with  heavy  clothing  and 
packages.  Tlicre  was  no  platform  at  the 
station,  and  defendant's  servants  offered  her 
no  assistance.  The  court  instructed  the 
jury  that  if  there  was  n(j  platform  or  other 
proper  landing  at  the  stopping  place,  and 
defendant's  servants  rendered  plaintiff  no 
assistance,  and  if,  for  want  of  sucii  landing 
and  assistance,  plaintiff  was  injured,  without 
fault  on  her  part,  she  should  recover.  Held, 
no  error.  Alexandria  Gf*  F.  R.  Co.  v. 
Herndon,  87  Va.  193,  12  5.  E.  Rep.  289.— 
Quoting  McDonald  v.  Chicago  &  N  W. 
R.  Co.,  26  Iowa  124. 

77.  To  wlioni  the  duty  Is  owed.*— 
To  the  class  of  persons  having  business 
with  it,  a  company  is  under  obligation  to 
keep  in  safe  condition  all  parts  of  its  plat- 
forms •  with  the  approaches  thereto,  to 
which  the  public  do,  or  would  naturally,  re- 
sort, and  ;ill  portions  of  the  station  grounds 
reasonably  near  to  the  platform,  where  pas- 
sengers would  be  likely  to  go,  and  to  pro- 
vide safe  waiting  rooms,  and  to  keep  the 
depot  and  platform  well  lighted  at  night; 
but  to  the  public  at  large  the  company 
owes  "  nothing  beyond  the  observance  of 
the  duties  of  good  neighborhood,"  which 
includes  "the  universal  duty  of  doing  no 
wilful  or  wanton  injury,  and  of  erecting  or 
continuing,  on  or  near  its  platform  or  ap- 
proaches, to  which  the  public  may  be  ex- 
pected to  go,  no  nuisance,  trap  or  pitfall, 
from  which  personal  injury  is  likely  to  en- 
sue."   Montgomery  &*  E.  R.  Co.  v.  Thomp- 


*  To  whom  railroads  owe  duty  of  keeping 
station  platforms  safe,  see  note,  20  L.  R.  A.  527. 


son,  77  Ala.  448,  54  Am  Refi.  72.— Lim- 
ited IN  Alabama  G.  S.  R.  Co.  v.  Ari^old,  35 
Am.  &  Eng.  R.  Cas,  466,  84  Ala,  159,  4  So. 
Rep.  359,  5  Am.  St.  Rep.  n^.— Memphis  &* 
C.  R.  Co.  V.  Whitfield,  44  Miss.  466. 

One  who  goes  upon  a  platform  at  a  sta- 
tion from  curiosity,  or  for  the  transaction 
of  business  in  no  way  connected  with  the 
company,  is  without  remedy  against  the 
company  for  any  injury  received  from 
defects  of  the  platform.  St.  Louts,  I.  M. 
&•  S.  R.  Co.  V.  Fairbairn,  30  Am.  <S-  Eng. 
R.  Cas.  166,  48  ArJt.  491,  4  .9.  W.  Rep.  50.— 
FoM.owED  IN  Sibley  v.  Ratliffe.  37  Am.  & 
Eng.  R.  Cas.  295.  50  Ark.  477.  Quoted 
IN  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Ferguson, 
57  Ark.  16. 

To  entitle  such  a  person  to  recover,  he 
must  show  gross  and  wanton  negligence  on 
the  part  of  the  company  equivalent  to  in- 
tentional mischief.  Burbank  v.  Illinois  C. 
R.  Co.,  45  Am.  &•  Eng.  R.  Cas.  593,  42  La. 
Ann.  1 1 56,  8  So.  Rep.  580. 

An  Arkansas  statute  requires  railroad 
companies  to  post  at  the  nearest  station 
house  a  notice  of  the  killing  of  stock  by 
trains.  A  person  missed  a  cow,  and  being 
unable  to  read,  took  plaintiff  with  him  upon 
a  depot  platform  to  read  for  him  what 
notices  were  there  posted.  In  climbing  up 
to  get  at  the  notice,  he  fell  through  a  defec- 
tive plank  in  the  platform  and  was  injured. 
Held:  (i)  that  the  company  was  bound  to 
use  ordinary  care  to  keep  the  platforms  at 
its  station  houses  in  good  repair  and  in  good 
condition  for  those  who  have  the  legal  right 
to  go  upon  them,  and  that  it  was  liable  to 
plaintiff ;  {2)  that  the  fact  that  it  was  about 
dark  wiicn  plaintiff  went  upon  the  platform 
cannot,  as  a  conclusion  of  law,  be  declared 
per  se  negligent.  St.  Louis,  I.  M.  &>  S.  R, 
Co.  V.  Fairbairn,  30  Am.  &^  Eng.  R.  Cas. 
166,  48  Ari:  491,  4  5.   JV.  Rep.  50. 

A  railroad  corporation  is  liable  to  a  hack- 
man  for  an  injury  received  while  carrying  a 
passenger  to  its  depot,  by  stepping,  without 
fault,  into  a  cavity  in  the  platform,  and  oc- 
casioned solely  by  the  want  of  ordinary  care 
on  the  part  of  the  corporation  in  leaving  the 
platform  in  an  unsafe  condition;  and  the 
liability  is  not  changed  by  the  fact  that  the 
platform  was  erected  and  maintained  within 
the  limits  of  a  highway.  Tobin  v.  Portland, 
S.&*  P.  R.  Co.,  ^gMe.  183.— DISTINGUISHED 
IN  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Bing- 
ham, 29  Ohio  St.  364.  Quoted  in  Gris- 
wold  V.  Webb,  16  R.  I.  649.     Reviewed  in 


STATIONS  AND   DEPOTS,  78-83. 


HVt 


Hamilton  v.  Texas  &  P.  R.  Co.,  21  Am.  & 
Eng.  R.  Cas.  336.  64  Tex.  251. 

The  rule  that  it  is  the  duty  of  a  company 
to  have  its  station  platform  reasonably  safe 
for  persons  accompanying  an  intending  pas- 
senger who  is  about  to  take  a  regular  pas- 
senger train  does  not  extend  to  persons 
accompanying  one  who  is  about  to  leave  in 
a  freight  car  in  charge  of  live  stock,  al- 
though he  has  been  allowed  to  load  such 
Slock  into  the  car  at  the  freight  platform  on 
one  side  of  the  station  (instead  of  at  the 
Stock-yards,  as  is  customary),  from  which 
place  the  car  is  to  be  taken  in  the  night  by 
a  freight  train  which  does  not  usually  stop 
at  that  station,  and  is  not  allowed  to  carry 
passengers,  and  for  which  the  station  is 
never  kept  open,  and  although  he  and  his 
friends  have  been  allowed  by  the  agent  to 
occupy  the  waiting  room.  Dcnvdw.  Chicago, 
M.  &^St.  P.  A\  Co.,  84  IV/s.  105,  54  N.  IV. 
Rep.  24.— Quoting  Watkins  v.  Great  West- 
ern R.  Co.,  46  L.  J.  C.  P.  817;  Cahill  v. 
Layton,  57  Wis.  614 ;  Hemmingway  v,  Chi- 
cago, M.  &  St.  P.  R.  Co.,  67  Wis.  676. 

78.  D«»}freo  of  care  required.*  — 
With  respect  to  its  platforms  and  approaches, 
a  company  is  only  held  to  that  reasona- 
ble degree  of  care  which  is  demanded  of 
individuals  upon  whose  premises  others 
come  by  invitation  or  inducement  for  the 
transaction  of  business.  Pennsylvania  Co. 
v.  Marion,  27  Am.  &*  E'tg.  R.  Cas.  132,  104 
Ind.  239,  3  iV.  E.  Rep.  874. 

The  high  degree  of  care  which  a  company 
owes  to  its  passengers  extends  to  all  neces- 
sary appliances  to  enable  them  safely  to 
leave  the  cars.  It  is  negligence  to  leave  a 
wheel-box  or  its  guard  so  out  of  repair  that 
it  is  liable  to  throw  down  a  passenger  alight- 
ing from  the  car.  Chase  v.  /awes/own  5/. 
R.  Co.,  38  A'.  V.  S.  R.  954,  6o//««  582,  mem., 
1$  N.  V.  Supp.  35;  affirmed  in  133  A^.  Y. 
6 1 9,  mem.,  30  N.  E.  Rep.  1 1 50, 44  N.  Y.  S. 

R.  93'. 

79.  Need  not  be  absolutely  safe.— 

A  railroad  company  is  not  bound  to  keep 
its  station  platforms  and  approaches  abso- 
lutely safe,  but  only  in  a  reasonably  safe 
condition.  Gulf,  C.  «S-  S.  F.  R.  Co.  v.  Gross 
{Tex.  Civ.  App.),  21  S.  IV.  Rep.  186.  Gulf, 
C.  &•  S.  F.  R.  Co.  V.  Butcher,  52  Am.  &• 
Eng.  R.  Cas.  615,  83  Tex.  309,  18  S.  W.  Rep. 
583^ 

*  Measure  of  care  which  company  must  exer- 
cise to  keep  platforms  and  approaches  safe,  see 
note,  20  L.  R.  A.  520. 


80.  Guard  railings. — A  company  is 
not  guilty  of  negligence  in  maintaining  a 
platform,  extendmg  from  its  station  to  its 
steamboat  pier,  such  platform  being  four 
feet  three  inches  wide,  and  on  one  side  pro- 
tected by  railings,  but  on  the  side  next  the 
railway,  which  runs  parallel  with  it  for  some 
distance,  having  only  a  guard  of  wood  nine 
inches  high.  Rigg  v.  Manchester,  S.  &*  L. 
R.  Co.,  \2jur.  N.  S.  525,  14  W.  R.  834. 

81 .  Covering— Roof.— While  standing 
looking  at  a  time-table  on  a  station  plat- 
form a  passenger  was  injured  by  a  plank 
falling  through  the  covering  of  the  platform, 
and  upon  looking  up  he  saw  the  legs  of  a 
man  protruding  through  the  covering.  Held, 
that  there  being  nothing  to  show  that  the 
man  was  employed  by  the  company,  or  that 
it  knew  the  covering  to  be  insecure,  the 
plaintifl  was  properly  nonsuited.  Welfare 
V.  London  <S-  B.  R.  Co.,  38  L. /.  Q.  B.  241, 
L.  R.  4  Q.  B.  693, 17IV.  R.  1065,  20  Z.  T.  743. 

82.  Hole  in  floor.  —  Plaintiff,  while 
lawfully  on  a  railroad  platform,  fell  through 
a  hole  in  decaying  boards,  which  had  been 
known  to  the  company's  agent  for  nearly 
two  years,  and  received  severe  internal  in- 
juries. Held,  that  the  negligence  of  the 
company  in  not  making  the  platform  safe 
rendered  it  liable,  and  $1000  damages  were 
not  excessive.  Toledo,  W.  &*  IV.  R.  Co.  v. 
Crush,  67  ///.  262.  —  Distinguished  in 
Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Bingham, 
29  Ohio  St.  364. 

A  company  is  guilty  of  gross  negligence 
in  leaving  a  hole  in  the  floor  of  a  depot 
where  its  passengers  are  accustomed  to 
alight  from  its  cars.  LiscombM.  New  Jersey 
R.  <&-  T.  Co..  6  Lans.  (JV.  Y.)  75. 

83.  Proximity  to  track.— As  plaintiff 
was  leaving  a  car  on  the  Brooklyn  Bridge 
she  fell  into  the  space  between  the  car  and 
the  platform  and  was  injured.  The  evi- 
dence tended  to  show  that  the  platform  was 
not  sufficiently  lighted,  and  it  was  claimed 
that  the  opening  between  the  platform  and 
the  car  was  too  wide.  The  evidence  differed 
as  to  the  width  of  the  opening  at  the  place 
of  the  accident,  it  being  fixed  by  different 
witnesses  at  from  eleven  and  a  half  to  eigh- 
teen inches;  but  the  track  at  the  point 
was  constructed  on  a  curve,  so  that  the 
centre  of  the  car  was  necessarily  much  closer 
to  the  platform  than  the  ends.  Plaintiff  had 
been  in  the  habit  of  crossing  the  bridge,  but 
on  previous  occasions  she  had  gotten  off  at 
the  middle  of  the  car.     No  previous  acci- 


1 

3       ,  . 

1 

'               1 

1 

.  'S 


t 


218 


STATIONS  AND   DEPOTS,  84-88. 


dent  had  occurred.  Held,  that  the  opening 
in  itself  was  not  evidence  of  negligence. 
Fox  V.  Mayor,  etc.,  of  N.  Y.,  53  A^.  Y.  S.  R. 
902,  70  Hun  181,  24  yV.  Y.  Supp.  43. 

In  such  case  it  was  error  to  refuse  to 
charge  that,  if  the  jury  believed  that  the 
platform  was  lighted  on  the  night  of  the  acci- 
dent, as  testified  by  defendant's  witnesses, 
the  verdict  must  be  for  defendant ;  and  to 
refuse  further  to  charge  that  there  was  no 
evidence  that  the  space  between  the  plat- 
form and  the  car  was  unnecessarily  wide, 
and  that  the  only  question  which  the  jury 
might  consider  was  whether  the  platform 
was  properly  lighted.  Fox  v.  Mayor,  etc.,  of 
N.  Y.,  53  N.  Y.  S.  R.  902,  70  Hun  181,  24 
N.  Y.  Supp.  43. 

The  proximity  of  a  platform  to  a  railroad 
track  is  not  negligence  on  the  part  of  the 
company  when  it  is  constructed  on  private 
property  and  not  on  the  company's  right  of 
way.  Barber  v.  Richmond  Sf  D,  R,  Co.,  34 
So.  Car.  444,  13S.  £.  Rep.  630. 

It  is  negligence  in  a  company  so  to  con- 
struct a  platform  that  passing  cars  shall  ex- 
tend over  it  as  much  as  eighteen  inches. 
Houston  &•  T.  C.  R.  Co.  v.  Reason,  61  Tex. 
613. 

84.  Too  narrow  between  tracks. 
— A  railroad  constructed  a  platform  for 
passengers  on  a  narrow  strip  between  two 
tracks,  leaving  a  space  of  only  two  feet  and 
two  inches  between  coaches  when  a  train 
was  on  each  track.  PlaintiiT,  while  about  to 
take  passage  on  an  approaching  train,  was 
hit  by  a  train  approaching  on  the  other 
track  from  his  rear.  Held,  that  the  con- 
struction of  so  narrow  a  platform  at  such  a 
place,  and  an  attempt  to  pass  trains  with 
passengers  on  the  platform,  amounted  to 
wanton  carelessness  and  gross  negligence,  or 
wilful  injury;  and  plaintiff,  being  a  stranger, 
had  a  right  to  suppose  that  the  trains  would 
be  properly  managed,  and  could  not  be  held 
guilty  of  contributory  negligence.  Chicago 
&*  A.  R.  Co.  V.  Wilson,  63  ///.  167.— DIS- 
TINGUISHED IN  Chicago,  B.  &  Q.  R.  Co.  v. 
Mehlsack,  44  III.  App.  124.  Quoted  in 
Pennsylvania  Co.  v.  Keane,  41  III.  App. 

317- 

A  company  will  be  liable  for  an  injury  if 
it  builds  a  platform  between  tracks  so  as  to 
compel  a  passenger  to  stand  dangerously 
near  passing  trains  ;  but  it  will  not  be  liable 
if  the  platform  is  wide  enough  to  aflord 
ample  room,  though  the  edge  nearest  to 
the  track  could  not  be  safely  occupied.    Chi' 


cago,  B.  &»  Q.  R.  Co.  v.  Mahara,  47  ///.  APP. 
208. 

85.  Too  high.— It  is  negligence  for  a 
company  to  have  a  station  platform  higher 
than  the  car  steps,  and  to  require  passen- 
gers to  board  the  trains  from  a  baggage  car. 
Turner  v.  Vicksburg,  S.  &*  P.  R.  Co.,  37  La. 
Ann.  648,  55  Am.  Rep.  514.— Following 
Peniston  v.  Chicago,  St.  L.  &  N.  O.  R.  Co., 
34  La.  Ann.  778. 

80.  Too  low.— It  is  negligence  on  the 
part  of  a  company  to  construct  and  main- 
tain a  station  platform  twenty-six  inches 
below  the  level  of  the  lowest  steps  of  its 
cars.  Toledo,  Si.  L.  6-  A'.  C.  R.  Co.  v.  Win- 
gate,  58  Am.  &*  Eng.  R.  Cas.  232,  143  /«</. 
125,  37  A^.  £•.  AV/.  274. 

87.  Machinery  on  platform.  —  A 
company  is  not  guilty  of  negligence  in 
maintaining  on  its  station  platform,  in  a 
proper  place,  and  properly  lighted,  a  ma- 
chine, the  edge  of  which  is  raised  a  few 
inches  above  the  level  of  the  platform  and 
over  which  a  passenger  falls  and  is  injured. 
Blackman  v.  London,  B.&*  S.  C.  R.  Co.,  17 

W.  R.  769.  Common  v.  Eastern  Counties  R. 

Co.,  4  //.  <S-  A'.  781,  29  L.J.  Ex.  94. 

88.  Ice  and  snow.— A  railway  com- 
pany is  guilty  of  negligence  in  maintaining 
a  station  platform  across  which  there  ex- 
tends a  strip  of  ice,  upon  which  a  passenger 
slips,  sustaining  injuries.  Shepperd  v.  Mid- 
land R.  Co.,  20  W.  R.  705,  25  Z.  T.  879. 

It  is  the  duty  of  a  railroad  corporation  to 
remove  snow  and  ice  from  a  platform  over 
which  it  is  necessary  for  passengers  to  pass 
in  order  to  reach  its  cars,  or  to  take  pre- 
cautions by  covering  it  with  ashes  or  other 
substance,  to  protect  passengers  from  the 
danger  to  which  otherwise  they  would  be 
exposed.  Weston  v.  New  York  EL  R.  Co., 
73  N.  Y.  595 ;  affirming  10  J.  &»  S.  1 56. — 
Distinguished  in  Palmer  v.  Pennsylvania 
Co.,  Ill  N.  Y.  488,  18  N.  E.  Rep.  859,  19 
N.  Y.  S.  R.  493;  Kelly  v.  Manhattan  R. 
Co.,  112  N.  Y.  443,  20  N.  E.  Rep.  383,  21  N. 
Y.  S.  R.  507.  Followed  in  Foster  v.  New 
York  C.  &  H.  R.  R.  Co..  108  N.  Y.  636.  Re- 
viewed IN  Timpson  v.  Manhattan  R.  Co.. 
52  Hun  489,  24  N.  Y.  S.  R.  629,  5  N.  Y. 
Supp.  684. 

"This  duty  is  not  performed  simply  by  ap- 
pointing servants,  whose  duty  it  is  to  keep 
the  platform  in  a  safe  condition ;  nor  is  it 
any  excuse  that  they  neglected  their  duty. 

Weston  V.  New  York  El.  R.  Co.,  73  N.    Y. 
595 ;  affirming  10  J.  &-  S.  156. 


STATIONS   AND    DEPOTS,  80-UU. 


219 


App. 


Proof  that  plaintiff  was  injured  in  step- 
ping  from  a  car  onto  an  icy  platform,  and 
thut  snow  and  ice  had  been  forming  since 
the  day  before,  and  that  no  means  had  been 
used,  by  cither  sanding  or  putting  ashes  on 
the  platform,  to  make  it  safe,  is  sufficient  to 
malte  out  a  prima  facie  case  of  negligence 
against  the  company,  and  to  justify  a  ver- 
dict for  plaintiff.  Timpson  v.  Manhattan 
R.  Co.,  5  A'.  Y.  Supp.  684,  52  Hun  489,  24 
A''.  Y.  S.  R.  629.— Reviewing  Weston  v. 
New  York  El.  R.  Co.,  73  N.  Y.  595 ;  Hulbert 
V.  New  York  C.  R.  Co..  40  N.  Y.  145. 

A  company  is  under  no  obligation  to  re- 
move the  effects  of  a  continuous  storm  of 
snow,  sleet  and  rain  from  the  exposed  plat- 
form of  a  car  while  making  its  passage  be- 
tween stations  or  the  termini  of  its  route ; 
and  a  passenger  who  has  reason  to  know 
that  there  is  snow  and  ice  upon  the  plat- 
form, and  that  the  company  has  had  no 
reasonable  opportunity  to  remove  it,  can- 
not recover  damages  for  injuries  sustained 
through  a  fall  caused  by  slipping  thereon. 
Palmer  v.  Pennsylvania  Co.,  37  Am.  &* 
Eng.  R.  Cat.  150,  in  A^  Y.  488,  \%  N.  E. 
Rep.  859,  19  N.  Y.  S.  R.  493  ;  reversing  42 
Hun  656,  4  //,  Y.  S.  R.  888.— Distinguish- 
ing Weston  V.  New  York  El.  R.  Co.,  73 
N.  Y.  595.— Applied  in  Kelly  v.  Manhattan 
R.  Co.,  112  N.  Y.  443,  20  N.  E.  Rep.  383, 
21  N.  Y.  S.  R.  507;  Buck  V.  Manhattan  R. 
Co.,  32  N.  Y.  S.  R.  51.  10  N.  Y.  Supp.  107. 
Quoted  in  Bruswitz  v.  Netherlands  A.  S. 
Nav.  Co.,  46  N.  Y.  S.  R.  623.  Reviewed 
IN  Hanrnhan  v,  Manhattan  R.  Co.,  53  Hun 
420,  24  N.  Y.  S.  R.  790,  6  N.  Y,  Supp.  395. 

3.  Station  Grounds  ami  Approaches. 

89.  Duty  as  to  premises— Need  not 
be  absolutely  safe.* — When  a  structure 
or  appliance,  such  as  is  in  general  use,  and 
which  is  not  inherently  dangerous,  has  uni- 
formly answered  the  purpose  for  which  it 
was  designed  and  used,  under  every  con- 
dition supposed  to  be  possible  in  the  busi- 
ness, it  cannot  be  said  that  a  person  has  not 
acted  with  ordinary  prudence  if  he  fails  to 
anticipate  an  accident  which  afterwards 
happens  in  its  use  when  substantially  in  its 
usual  condition.  Wabash,  St.  L.  &*  P.  R. 
Co.  V.  Lode,  112  Intl.  404,  11  IVest.  Rep. 
877,  14  N.E.  Rep.  391.— Quoted  in  McKee 

*  Defective  station  surroundinRS,  see  notes, 
16  Am.  &  Eno.  R.  Cas.  320 ;  27  /d.  130  ;  30  Id. 
171  ;  35  Id.  481.  See  also  56  Am.  &  Eno.  R. 
Cab.  289,  aistr. 


V.  Chicago,  R.  I.  4  P.  R.  Co.,  48  Am.  & 
Eng.  R.  Cas.  154,  83  Iowa  616.  Reviewed 
and  distinguished  in  Murphy  v,  Wabash 
R.  Co.,  115  Mo.  III. 

A  public  carrier  is  only  bound  to  use 
ordinary  care  in  view  of  the  dangers  to  be 
apprehended ;  it  is  not  bound  to  keep  its 
premises  absolutely  safe,  nor  is  it  liable  for 
accidents  due  to  a  want  of  ordinary  care  on 
the  part  of  the  injured  person.  Skottowe  v. 
Oregon  S.  L.  &*  U.  N.  R.  O.,  51  Am,  &-Eng. 
R.  Cas.  444, 22  Oreg.  430, 30  Pac.  Rep.  222, 16 
L.  R.  A.  593.— Distinguishing  Eisenberg 
V.  Missouri  Pac.  R.  Co.,  33  Mo.  App.  91 ; 
Cusick  V.  Adams,  115  N.  Y.  55,  12  Am.  St. 
Rep.  772 ;  Texas  &  N.  O.  R.  Co.  v.  Des- 
sommes,  (Tex.)  15  S,  W.  Rep.  806. 

00.  To  whom  duty  Is  cured.  —  A 
company  owes  to  one,  not  a  servant  of  the 
company,  who  is  lawfully  engaged  in  load- 
ing a  car  upon  its  side  track,  the  duty  to 
have  its  premises  in  a  reasonably  safe  con- 
dition, and  to  prevent  damages  to  him  and 
others  having  occasion  to  transact  business 
with  it,  from  any  unseen  or  unusual  danger 
of  which  it  has  knowledge,  or  by  the  exer- 
cise of  reasonable  vigilance  and  sagarity 
should  have  knowledge.  Wabash,  St.  L. 
&•  P.  R.  Co.  V.  Lode,  112  /nd.  404,  11 
West.  Rep.  877,  14  A^.  E.  Rep.  391. 

01.  Degree  of  care.— The  measure  of 
care  due  from  a  railroad  company  to  its 
passengers,  whom  it  invites  to  use  a  side- 
walk which  it  has  laid  between  its  station 
and  the  street,  is  the  same  as  that  required 
of  a  municipal  corporation  with  respect  to 
the  public  sidewalks  which  it  is  required  by 
law  to  maintain.  Bateman  v.  New  York 
C.  &*  H.  R.  R.  Co.,  47  Hun  429,  14  N.  Y.  S. 
R.  454. 

02.  Bridges.— Although  a  company  is 
not  bound  to  erect  a  foot  bridge  over  its 
line  to  give  passengers  access  from  one 
platform  to  the  other,  and  the  want  of  such 
a  bridge  will  not,  per  se,  make  it  liable  for 
injuries  received  by  the  public  on  that 
account,  still,  the  absence  of  such  a  pre- 
caution throws  a  greater  onus  on  the  com- 
pany to  provide  for  the  safety  of  the  public. 
Girdwood  v.  North  British  R.  Co.,  4  Sc.  Sess. 
Cas.  (4/A  Series)  115,  3  By.  &*  C.  T.  Cas. 
xviii. 

A  company  is  liable  for  the  death  of  a 
passenger  owing  to  a  defective  bridge  which 
it  has  constructed  between  two  platforms 
at  Its  station,  although  there  was  a  safer 
bridge  about  too  yards  farther  round,  which 


p 


220 


STATIONS  AND   DEPOTS,  03-90. 


i  ^ 


I'   I 


the  deceased  nnght  have  used.  Longmore 
V.  Great  Wtsttrn  R.  Co.,  19  C".  B.  A'.  S.  183. 

A  shallow  ditcli,  not  inure  than  two  feet 
wide,  ran  parallel  with  defendant's  track, 
at  the  point  where  passengers  gut  on  and 
off,  with  a  bridge  or  platform  fifteen  feet 
wide  erected  over  it,  which  was  in  good 
condition,  except  that  one  plank  was 
slightly  shorter  than  the  others,  and  plain- 
tiff, in  the  daytime,  in  attempting  to  get  on 
a  train,  stepped  into  a  hole  caused  by  the 
short  pliink,  and  was  injured.  //«■/</,  that 
defendant  was  entitled  to  an  instruction 
that,  if  the  jury  found  the  bridge  to  be  such 
as  testified  to,  it  was  sufficient  as  a  cross- 
ing place  for  passengers,  and  defendant  was 
not  chargeable  with  negligence.  Stokes  v. 
SuJolk&'  C.  A.  Co.,  107  iV.  Car.  178,  11  S. 
E.  Kep.  991.— Reviewed  in  Falls  v.  San 
Francisco  &  N.  P.  R.  Co.,  97  Cal.  1 14. 

Where  a  bridge  leading  to  a  railroad  sta- 
tion is  being  repaired  for  the  company  by 
independent  contractors,  and  the  work  of 
repair  has  been  nearly  completed,  so  ihat 
the  company  has  begun  to  use  the  bridge 
as  a  passageway  for  people  passing  to  and 
from  its  station,  ihc  company  is  liable  for 
the  death  of  a  person  who  falls  through  an 
opening  in  the  bridge  while  passing  to  the 
station  to  purchase  his  ticket.  Gilmore  v. 
Phihuiclphia  <S-  R.  R.  Co.,  56  Am.  &*  Eng. 
R.  Cas.  279,  1 54  Pa.  St.  375, 25  At/.  Rep.  774. 

03.  Ditches.  -Plaintiff  left  a  train  on 
a  dark  night,  and  took  the  usual  route  for 
passengers,  and  when  a  short  distance  from 
the  station,  fell  in  an  open  ditch  under  a 
trestle,  which  it  was  necessary  to  cross. 
JMii,  that  it  was  the  duty  of  the  company 
to  keep  such  places  in  a  safe  condition,  and 
that  it  was  liable  for  the  injury.  Texas  <S>» 
St.  L.  R.  Co.  V.  0/r,  46  Ari.  182. 

04.  Open  liatclnvays  and  holes.* 
— A  company  owned  the  grounds  from  one 
of  its  depots  to  a  steamboat  landing  on  a 
river.  The  only  means  of  foot  passage  to 
the  landing  led  through  the  railroad  station 
house.  A  passenger  from  a  train  in  attempt- 
ing to  go  to  a  boat,  in  the  night-time,  fell 
through  an  open  hatchway  in  the  station- 
house  floor  and  was  injured,  //e/t/,  that  the 
railroad  was  liable.  Bennett  v.  Louisville  &» 
N.  R.  Co.,  I  Am.  <S-  Eng.  R.  Cas.  71,  102 
U.  S.  577. 


*  Passenger  falling  into  hole  in  leaving  sta- 
tion may  recover  for  injuries  receivi-d,  see  35 


Am.  vS:  Eno   R.  Cas. 


509,  iiistr 


Plaintiff  left  a  train  at  her  destination  on 
a  dark  night,  and  on  passingin  thcrcarof  the 
station  to  reach  a  stage,  fell  into  an  open- 
ing constructed  in  the  ground  to  form  an 
entrance  to  the  basement  of  the  station. 
The  evidence  showed  that  it  was  in  the 
passageway  likely  to  be  used  by  persons  in 
going  to  and  from  the  cars.  JYeM,  that  it 
was  negligence  in  the  company  not  to  keep 
the  place  guarded  or  in  a  safe  condition. 
Green  v.  Pennsylvania  R.  Co.,  jo  Fed.  Rep. 
66. —Following  McDonald  v,  Chicago  & 
N.  W.  M.  Co.,  26  Iowa  124. 

A  hole  so  near  a  recognized  way,  used 
by  the  public  in  going  to  and  from  a  depot, 
that  a  man  in  the  "ordinary  aberrations  of 
travel"  might  fall  into  it, should  be  guarded 
by  the  company  to  prevent  such  an  acci- 
dent. Cross  V,  Lake  Shore  &*  M.  S.  R. 
Co.,  35  Atn.  St*  Eni,^.  R.  Cas.  476,  69  Mich. 
363,  14  West.  Rep.  181,  37  N.  W.  Rep. 
361. — DiSTiNGUisHErj  in  Flagg  7/.  Chicago, 
D.  &  C.  G.  T.  J.  R.  Co..  96  Mich.  30. 

05.  leit  nn)riiar«le(l  by   in(lc> 

pendent  eontraetor. — A  railroad  com- 
pany is  liable  to  a  passenger  for  injuries 
from  falling  through  an  opening  at  the 
head  of  a  flight  of  stairs  which  it  has 
opened  as  a  means  of  access  to  the  sta- 
tion, although  the  opening  was  left  by  inde- 
pendent contractors  engaged  in  repairing 
such  stairway.  Gilmore  v.  Philaffelphia  &* 
R.  R.  Co.,  154  Pa.  St.  375,  25  Atl.  Rep.  774. 

00,  Tiirntahlc.— A  turntable  belong- 
ing to  defendant  company  was  located  upon 
its  depot  grounds,  six  feet  from  the  line  of 
a  street  passing  through  a  sparsely  settled 
portion  of  the  city,  and  very  little  traveled. 
It  had  stood  upon  its  present  location  for 
about  fifteen  years,  and  constituted  in  itself 
a  conspicuous  object  of  warning  of  what- 
ever danger  it  presented.  Plaintiff  while 
attempting  to  pass  along  the  street  on  a 
dark  night  fell  into  it  and  sustained  serious 
injury.  It  was  shown  that  plaintiff  knew 
of  its  location  from  the  time  it  was  built. 
He  had  worked  for  the  company  eighteen 
years,  and  fourteen  years  of  that  time  was 
a  night  watchman.  He  knew  all  about  the 
danger  in  passing,  if  there  was  any.  There 
was  no  statute  requiring  the  company  to 
fence  its  depot  grounds.  Held:  (i)  that 
plaintiff  could  not  recover;  (2)  that  negli- 
gence will  not  be  presumed  from  the  bare 
fact  of  the  occurrence  of  the  accident  on 
defendant's  land  ;  (3)  and  that  evidence  of 
other  and  previous  accidents  occurring  at 


STATIONS   AND   DEPOTS,  97-101. 


321 


the  same  place  was  inadmissible.  Early 
V.  I.akt  Shore  &-  M.  S.  /?.  Co.,  30  Am.  &* 
En£.  li.  Ciis.  163,66  Alii/i.  349,9  West.  Ke/>. 
863,  33  A^.   IV.  Hep.  813. 

07.  Hiiiiterti  —  Biiiibliliiff  poHtH.  — 
A  track  was  laid  upon  a  descending  grade, 
which  at  its  lower  end  stopped  at  a  street. 
There  was  no  hunter  or  other  obstruction 
to  prevent  cars  from  going  beyond  the  end 
of  the  track.  There  was  a  telegraph  pole 
near  the  end  of  the  track  and  In  the  street. 
PlaintifT,  a  hackman,  was  standing  with  his 
team  in  the  street.  Some  cars  suddenly, 
and  apparently  without  the  fault  of  the 
company,  became  detached,  ran  beyond  the 
end  of  the  track,  and  struck  the  lele- 
grap<h  pole,  which  was  thereby  broken,  and 
the  wires  fell  upon  plaintifT's  horses,  fright- 
ening them  and  causing  them  to  injure 
plaintifl.  Held,  that  the  jury  were  author- 
ized to  find  that  a  hunter  should  have  been 
put  up  to  guard  against  such  accidents,  and 
that  the  evidence  was  sufTicient  to  sustain  a 
verdict  for  plaintif!.  Shaw  v.  New  York 
Cf  N.  E.  Ji.  Co.,  41  Am.  &•  Eng,  R.  Cas. 
547,  150  Jifass,  182,  22  A'.  E.  Rep.  884. 

It  is  for  the  jury  to  determine  whether  it 
is  not  nejjligence  in  a  railway  company  to 
omit  means  to  prevent  its  cars  frouj  mov- 
ing or  being  driven  beyond  the  rails  where 
these  if  extended  would  cross  a  passage- 
way left  open  by  the  company  to  give  access 
to  the  depot.  Grand  Rapids  &*  I,  R.  Co.  v. 
Martin,  4 1  Mich.  667. 

08.  McaiiN  of  iiif^rcNS  and  egresM. 
— It  is  made  the  duty  of  railway  companies 
to  establish  depots  and  so  to  operate  their 
roads  as  to  afford  the  public  reasonable 
safety  and  dispatch  in  the  transaction  of 
business;  and  to  efTect  this,  it  is  necessary 
that  they  should,  at  all  reasonable  times, 
provide  a  ready  and  convenient  means  of 
access  to  their  stations  and  depots.  Chi- 
cago,B.  &•  Q.  R.  Co.  v. Hans,  iii  ///.  114.— 
Quoting  Chicago  &  G.  T.  R.  Co.  v.  Camp- 
bell, 47  Mich.  261.— Burbank  v.  Illinois  C. 
R.  Co. ,  45  Am.  <S«  Eng.  R.  Cas.  593,  42  La, 
Ann.  1 1 56,  8  So.  Rep.  580.  Collins  v.  To- 
ledo, A.  A.  Sr>  N.  M.  R.  Co.,  80  Mich.  390, 
45  N.  W.  Rep.  178.  Warren  v.  Fitchburg 
R.  Co.,  8  Allen  {Mass.)  227. — Distinguished 
IN  Young  z/.  Old  Colony  R.  Co.,  156  Mass. 
178;  Terry  7/.  Jewett,  78  N.  Y.  338;  Orms- 
bee  V.  Boston  &  P.  R.  Corp.,  14  R.  I.  102, 
51  Am.  Rep.  354.  Reviewed  in  Beisiegel 
V.  New  York  C.  R.  Co.,  34  N.  Y.  622.— Dela- 
ware, L.  <S-  W.  R.   Co.  v.    Tratitwein,  41 


.////.  &*  Er^.  R.  Cas.  187,  52  A'.  /  L.  169, 
i<;  ///.  Rep.  178,  7  L.  R.  A.  435.  Texas  ^ 
I'.  R.  Co.  V.  Drown,  78  Tex.  yyj,  14  S.  IV. 
Rep.  1034. 

A  railway  company  which  has  provided 
all  reasonable  facilities  (or  ingress  and 
egress  from  its  station  houses  has  done  its 
full  duty  in  that  regard,  and  cannot  be 
bound  to  suppose  that  passengers  who  do 
not  know  the  way  will  neglect  the  means 
open  to  their  sight  and  go  olT  in  the  dark- 
ness somewhere  else.  Siurgis  v.  Detroit, 
G.  H.  <S-  M.  R.  Co.,  72  Mich.  619,  40  N. 
ir.  Rep.  914. 

Wh  AppnmchcH.  *  —  A  company  is 
bound  to  keep  all  approaches  to  its  depot, 
constructed  by  it  and  under  its  control  for 
the  use  of  persons  having  lawful  occasion 
to  use  them  to  go  to  or  from  the  depot  or 
cars,  safe  and  convenient  for  such  use,  even 
though  the  same  may  be  within  the  limits 
of  a  highway.  Quimty  v.  Boston  &•  M,  R. 
Co.,  69  fl/e.  340. 

It  is  the  duty  of  a  company  to  keep  in  a 
reasonably  safe  condition  a  recognized  way 
used  by  the  public  in  going  to  and  from  its 
depot.  Cross  v.  Lake  Shore  &^  M.  S.  R. 
Co.,  3$  Am.  &*  Eng.  R.  Cas.  476,  6f)  Mich. 
363,  14  West.  Rep.  181,  37  A'.  W.  Rep.  361.— 
Followed  in  Cole  v.  Lake  Shore  &  M.  S. 
R.  Co..  81  Mich.  156. 

100.  PaM8agewayH.  —  It  may  be  as- 
sumed that  a  company  will  take  the  utmost 
care  to  protect  persons  from  injury  in  cross- 
ing a  passage  left  by  it  to  give  access  to  the 
depot,  when  the  passage  does  not  actually 
cross  the  track.  Grand  Rapids  <&*  /.  R.  Co. 
V.  Martin,  41  Mich.  667. 

Where  a  passenger  is  injured  by  falling 
over  obstructions  in  a  passageway  leading 
from  a  station,  the  company  is  not  released 
from  liability  by  the  fact  that  there  was  an- 
other passageway  leading  from  the  station, 
which  plaintiff  might  have  taken.  Dela- 
ware, L.  &•  W.  R.  Co.  V.  Trautwein,  Ai  Am. 
&-  Eng.  R.  Cas.  187,  52  A^,  /.  L.  169,  7  L.  R. 
A.  435.  13  A"-  7-  L.J.  72,  19  Atl.  Rep.  178. 

101.  Stairs  and  steps. —  A  company 
is  not  guilty  of  negligence  in  maintaining,  at 
a  station  platform,  a  staircase  the  steps  of 
which  are  nosed  with  brass  which  has  be- 
come smooth  from  use.  A  passenger  who 
slips  on  such  steps  and  hurts  himself  cannot 


*  As  to  duty  of  carrier  in  maintaining  safe  ap- 
proaches beyond  its  own  grounds,  see  note,  16 
L  R.  A.  593, 


S2S 


STATIONS  AND  DEPOTS,  102. 


recover.  Crofter  v.  Metropoatan  R.  Co.,  i 
/^.  .^^  ^.  164.  L.  R.  I  C  y.  300,  12  ///y.  A^, 
i".  272,  35  L.J.  C.  P.  132,  14  ^F.  /i'.  334. 

In  an  acti<;n  for  an  injury  to  a  passenger 
sustained  through  falling  down  stairs  at 
a  station,  it  is  not  enough  to  show  that 
the  stairs  were  of  improper  condition  or 
construction,  unkos  the  fall  was  caused 
thereby.  Davis  v.  London  &*  B.  R.  Co.,  2 
F.  <S-  F.  588. 

Plaintiff  was  injured  by  falling  on  steps 
leading  to  defendani's  station,  which  steps 
defendant  had  allowed  to  be  slippeiy  and 
dangerous.  There  was  no  contributory  neg- 
ligence on  the  part  of  plaintifl,  but  there 
were  other  steps  which  he  might  have  used, 
and  he  admitted  that  he  knew  that  the 
steps  used  by  him  were  dangerous,  and  went 
down  carefully,  holding  the  handrail.  Held, 
that  defendant  had  not  shown  that  plaintiff 
with  a  full  knowledge  of  the  nature  and 
extent  of  the  danger  had  voluntarily  agreed 
to  incur  it,  so  as  to  make  the  maxim  "  Volenti 
nonfit  injuria  "  applicable,  and  therefore  he 
was  entitled  to  recover.  Osborne  v.  London 
&*  N.  W.  R.  Co.,  35  Aw.  (S-  En^.  R.  Cas. 
483,  21  Q.B.  D.  220,  57  L.J.  Q.  B.  618, 6  Ry. 
&*  C.  T.  Cas.  Ixviii. — Approving  Thomas 
V.  Quartermaine,  18  Q.  B.  D.  685. 

Plaintiff  was  injured  by  falling  over  the 
railing  of  the  stairs  of  a  station  on  defend- 
ant's elevated  road,  and  charged  negligence 
in  the  method  in  which  the  rail  was  con- 
structed, f/ald,  that  the  company  was 
bo  ind  to  exercise  ordinary  care  and  dili- 
gence ;  that  is,  the  ca  and  diligence  of  a 
person  of  ordinary  p;i  dence,  considering 
the  uses  to  which  the  stairs  were  put ;  but 
it  was  not  bound  to  anticipate  every  dan- 
ger, nor  to  provide  for  tlie  unexpected. 
As  long  as  the  structure  was  reasonably 
suited  to  the  purpose  to  which  it  was  ap- 
plied, and  tlie  attention  of  the  company  had 
not  been  called  to  any  deficiency,  it  was  not 
guilty  of  negligence.  Johnson  v.  Manhat- 
tan R.  Co.,  52  Hun  III,  23  A'.  V.  S.  R.  388, 

4  A^.  y.  supp.  848. 

There  was  a  platform  extending  from  the 
east  side  of  a  depot  to  the  railroad  track, 
over  which  passengers  passed  to  and  from 
the  cars.  Stairs  led  through  the  centre  of 
the  depot  to  the  street  on  the  opposite  side, 
which  was  several  feet  lower  than  the  track, 
and  there  were  also  stairs  at  either  end  of 
the  depot,  leading  from  the  platform  to  the 
street.  The  stairs  at  the  north  end  of  the 
depot  were  open  at  the  top,  as  if  they  might 


be  used.  These  stairs,  and  a  platform  at 
the  bottom  of  them  about  four  feet  from 
the  ground,  were  constructed  by  an  express 
company  for  its  sole  use,  but  they  were  on 
defendant's  premises,  of  which  it  had  con- 
trol. Plaintiff,  a  passenger,  in  attempting 
to  pass  down  these  stairs  in  the  dark,  from 
the  upper  platform  to  the  street,  without 
fault  on  her  part,  fell  from  the  lower  plat- 
form to  the  ground,  striking  beyond  the 
limit  of  defendant's  premises,  and  was  in- 
jured. Held,  that  defendant  was  liable. 
Beard  v.  Connecticut  6-  P.  R.  R.  Co.,  48  Vt. 
loi,  16  Am.  Ry.  Rep.  375. — Reviewed  in 
Delaware,  L.  &  W.  R.  Co.  v.  Trautwein,  41 
Am.  &  Eng.  R.  Cas.  187,  52  N.  J.  L.  169,  7 
L.  R.  A.  435,  19  Atl.  Rep.  178. 

4.   Lighting  Station   Grounds;    Warming 
Stations. 

102.   Duty  to  light,  generally.*^ 

The  complaint  being,  not  that  plaintiff  did 
not  have  proper  facilities  for  getting  on  and 
off  a  car,  but  that  the  car  was  stopped  near 
a  precipice,  without  a  light,  and  without  no- 
tice to  plaintiff  of  its  dangerous  proximity, 
it  was  not  error  to  modify  a  request  to 
charge  that  the  company  is  not  bound  to 
make  landmgs  or  any  provision  for  the  re- 
ception and  discharge  of  passengers  where 
none  are  expected  to  be.  Central  R.  &»  B. 
Co.  V.  Smith,  34  Am.  &*  Eng.  R.  Cas.  456, 
80  Ga.  526,  5  S.  E.  Rep.  772. 

A  company  is  bound  to  provide  suitable 
modes  of  egress  and  ingress  to  and  from  its 
cars,  and  to  provide  sufficient  lights  at  sta- 
tions where  passengers  take  or  leave  the 
cars  at  night.  Reynolds  v.  Texas  &*  P.  R. 
Co.,  yj  La.  Ann.  694. 

It  is  the  duty  of  a  company  to  keep 
lights  at  proper  times  at  its  depots, 
approaches,  and  other  places  connected 
therewith,  which  arc  likely  to  be  visited  by 
passengers  and  persons  lawfully  on  the 
premises;  and  a  negligent  omission  of  such 
duty,  causing  injury,  will  entitle  the  injured 
party,  without  fault  on  his  part,  to  dam- 
ages. Roswadosfskie  v.  International  &*  G. 
N.  R.  Co.,  I  Tex.  Civ.  App.  487,  20  S.  IV. 
Rep.  872.  Galveston,  H.  &»  S.  A.  R.  Co.  v. 
Thornsberry,  (TV.r.)  17  5.  W.  Rep.  521. 

*  Obligations  to  keep  stations  lifrhted  and  in 
repair,  see  note.  18  Am.  &  Eng.  R.  Cas.  155. 

Failure  of  company  properly  to  light  stations 
and  platforms  and  to  render  assistance  to  passen- 
gers, see  47  Am.  &  Eng.  R.  Cas.  529,  abstr. 


3i 


■ 


STATIONS  AND   DEPOTS,  103-107. 


283 


103.  Before  and  after  arrival  of 
trains  at  night.— Where  a  company  has 
erected  a  station  house,  consisting  of  a 
ticket  office,  waiting  room  and  platform, 
for  the  accommodation  of  and  transaction 
of  business  with  the  public,  it  is  its  duty  to 
see  that  the  same  are  adapted  for  the  pur- 
pose for  which  they  are  erected,  and  safe ; 
and  it  should  cause  the  same  to  be  lighted  a 
proper  time  before  the  arrival  and  after  the 
departure  of  trains.  Alabama  G,  S.  K.  Co. 
V.  Arnold,  35  Am.  &*  Eng.  R.  Cas.  466,  84 
Ala.  159,  4  So.  Rep.  359.  5  Am.  St.  Rep.  354. 
— Distinguishing  People  v.  New  York,  L. 
E.  &  W.  R.  Co.,  29  Am.  &  Eng.  R.  Cas. 
480, 104  N.  Y.  58.  Limiting  Montgomery 
&  E.  R.  Co.  V.  Thompson,  77  Ala.  448. 
Quoting  Knight  v.  Portland,  S.  &  P.  R. 
Co.,  56  Me.  234. — Fordyce  v.  Merrill,  49 
Ark.  277,  5  5.    W.  Rep.  329.      Wallace  v. 

Wilmington  &>  N.  R.  Co.,  8  Houst.  {Del.) 
529,  18  Atl.  Rep.  818.  Grimes  v.  Pennsyl- 
vania Co.,  36  Fed.  Rep.  72.  Sargent  v.  St. 
Louis  &*  S.  F.  R.  Co.,  58  Am.  &>  Eng.  R. 
Cas.  184,  114  Mo.  348,  21  S.  W.  Rep.  823, 
19  L.  R.  A.  460. 

Railroad  companies  are  not  bound  to 
take  passengers  on  their  freight  trains,  but 
when  they  do  so,  and  receive  their  money, 
they  must  not  set  them  down  in  dangerous 
places  on  dark  nights,  without  light  and 
without  notice  of  the  danger.  Central  R. 
&*  B.  Co.  V.  Smith,  34  Am.  &*  Eng.  R.  Cas. 
456,  80  Ga.  526,  5  5.  E.  Rep.  772. 

104.  To  wlioni  duty  is  owed.— 
A  person  who  enters  a  station  intending  to 
take  a  train,  and  finding  it  gone,  waits  in 
the  station  for  a  horse-car,  is  not  a  passen- 
ger, and  the  company  is  not  under  the  duty 
as  to  him  of  keeping  its  premises  safely 
lighted.  Heinlein  v.  Boston  <S-  P.  R.  Co., 
33  Am.  &*  Eng.  R.  Cas.  ^00,  147  Mass.  136, 
16  N.  E.  Rep.  698. 

Where  a  railroad  company  permits  an  ex- 
press company  to  us*  its  offices  and  plat- 
forms, it  will  be  liable  to  one  who  is  injured 
by  falling  from  a  platform,  which  is  not 
sufficiently  lighted,  while  engaged  in  busi- 
ness with  the  express  company.  Smith  v. 
Texas  *-  P.  R.  Co.,  2  Tex.  Unrep.  Cas.  329. 

105.  Ligliting  and  warming  under 
Texas  statute  —  Union  depots.— The 
provision  of  Texas  Act  of  1889,  ch.  23,  re- 
quiring railroads  to  light  and  warm  their 
depots,  applies  to  all  passenger  depots,  and 
is  not  limited  to  union  depots  or  those 
where  railroads  cross.     Texas  &^  P.  R.  Co. 


v.  Mays,  4  Tex.  App.  (Civ.  Cas.)  225,  15  S. 
W.  Rep.  43. 

And  a  passenger  may  recover  damages 
resulting  from  contracting  a  cold  and  a 
fever  which  followed,  while  waiting  in  a 
depot  which  was  not  sufficiently  warmed. 
Texas  &*  P.  R.  Co.  v.  Mays,  4  Tex.  App. 
(Civ.  Cas.)  225,  155.  W.  Rep.  43. 

5.  Ejection  from  Station. 

106.  Riglit   to  eject  by   force.*  — 

Plaintiff  sued  for  being  ejected  from  a  sta- 
tion building.  The  evidence  showed  that 
after  his  arrival  at  the  station  he  visited 
several  saloons,  where  he  drank  intoxi- 
cating liquors,  and  then  returned  to  the 
station  not  for  the  purpose  of  waiting  for  a 
train  on  defendant's  road.  Held,  that  the 
company  owed  him  no  duty  more  than  it 
owed  to  the  general  public,  and  the  agent 
might  eject  him,  using  no  unnecessary 
force.  Johnson  v.  Chicago,  R.  I.  S*  P.  R. 
Co.,  51  /ou>a  25. 

Plaintiff  came  to  a  station  intending  to 
buy  a  ticket  and  become  a  passenger,  but 
the  ticket  agent  refused  to  sell  him  a  ticket, 
claiming  that  he  was  drunk,  which  seems, 
however,  not  to  have  been  the  fact.  Neld, 
that  after  he  failed  to  buy  the  ticket  he  was 
still  lawfully  upon  the  station,  with  the  duty 
of  leaving  it  with  ordinary  promptness,  and 
of  not  loitering  there,  or  of  using  it  for  any 
other  purpose  than  of  leaving  it.  McKer^ 
nan  v.  Manhattan  R.  Co.,  22/.  d*  S.  (AT.  Y.) 
354. 

Where  such  person  refuses  to  leave  the 
station  after  being  requested  to  do  so,  the 
company's  agents  have  a  right  to  use  neces- 
sary force  to  compel  him  to  do  so.  McKer- 
nan  v.  Manhattan  R.  Co.,  22/.  5»  S.  (N.  Y.) 

354- 

But  if  the  agents  employ  more  force  than 
is  necessary  to  compel  a  removal,  the  com- 
pany is  liable,  although  the  manner  of  the 
excessive  force  was  selected  by  the  agent  to 
gratify  his  own  passion  or  wilfulness.  Afc- 
Kernan  v.  Manhattan  R.  Co.,  22  /.  6*  S. 
{N.  Y.)  354. 

107.  for  violation  of  rules.- 

A  superintendent  of  a  railroad  depot  has 
authority  to  exclude  therefrom  persons  who 
persist  in  violating  the  reasonable  regula- 
tions   prescribed    for    their   conduct,  and 

*See  also  ante,  54,  6S. 
Excluding   persons  not  passengers  from  the 
platform  of  station,  see  note,  4I  Am.  Dec  472. 


^^iTI 


'k 

4 


\K 


'Its 


224 


STATIONS  AND  DEPOTS,  108-110. 


■n 


thereby  annoy  passengers,  or  interrupt  the 
officers  and  servants  of  the  corporation  in 
the  discharge  of  their  duties.  Com.  v. 
Pffiver,  7  Mete.  (Mass.)  596.— Applied  in 
Hall  7/.  Power,  12  Mete.  (Mass.)  482.  Dis- 
tinguished IN  Rose  z'.  Wihnington  &  VV. 
R.  Co..  106  N.  Car.  168,  11  S.  E.  Rep.  526. 
Quoted  in  The  D.  R.  Martin,  11  Blatchf. 
(U.  S.)  233. 

The  superintendent  of  a  railroad  depot 
has  not  a  right  to  order  a  person  to  leave 
the  depot,  and  not  come  there  any  more, 
and  to  remove  him  therefrom  by  force  if 
he  docs  come,  merely  because  such  person, 
in  the  judgment  of  the  superintendent,  and 
without  proof  of  the  fact,  had  violated  the 
regulations  established  by  the  railroad  cor- 
poration, or  had  conducted  himself  oflen- 
sivoly  towards  the  superintendent.  Hall  v. 
Power,  12  Mctc.  (Muss.)  482.— Applying 
Com.  7/.  Power,  7  Mete.  596.— Quoted  in 
Landrigan  v.  State,  31  Ark.  50. 

108. for  spitting:  on  floor— As- 
sault.—Railway  passengers  are  entitled  to 
remain  in  the  waiting  room  at  a  station  as 
long  as  they  have  occasion  to  do  so  and 
commit  no  oflense  against  the  good  order 
of  the  place  and  rcaso;iable  regulations 
made  to  govern  it ;  they  are  not  bound  to 
leave  on  being  ordered  out  by  the  keeper 
for  any  such  indecorum  as  spitting  on  the 
floor,  and  the  refusal  to  go  on  being  ordered 
will  not  excuse  the  commission  of  an  as- 
sault and  battery  upon  them  to  compel 
them  to  go.  People  v.  McKay,  8  Am.  <S-« 
Eng.  R.  Cas.  205,  46  M/c/i.  439,  9  N.  IV. 
Kep.  486. 

1 09. negro  from  room  reserved 

for  whites.* — Where  plaintill,  a  colored 
woman,  sues  for  being  wrongfully  and  vio- 
lently ejected  from  the  wailing  room  for 
whites,  an  instruction  is  erroneous  that  an- 
nounces non-liability,  merely,  if  plaintiff 
was  expelled  by  a  peace  officer,  there  being 
certain  evidence  that  he  was  acting  under 
direction  of  defendant's  servants,  and,  while 
so  acting,  used  unnecessary  violence.  Rose 
v.  Louisville,  N.  O.  ^  T.  A'.  Co.,  70  Miss. 
725,  12  So.  Rep.  825. 

It  is  likewise  error  to  instruct  that  if 
plaintiff  entered  and  occupied  the  w.jting 
room  set  apart  for  whites,  she  cannot  re- 
cover, if  a  separate  and  suitable  waiting 
room  was  provided  for  colored  people,  since 

"  Dominion  of  company  over  slati'.n  grounds 
and  right  of  way,  iiicluiling  power  to  remove 
persons  theictroni,  sec  note,  8  L.  R.  A.  753. 


this  instruction  ignores  the  ground  of  com- 
plaint that  she  was  ejected  in  a  violent  and 
improper  manner.  Rose  v.  Louisville,  N.  O. 
&•  T.  R.  Co.,  70  Miss.  725.  12  So.  Rep.  825. 

1  OOn. of  man  ftom  ladies*  room. 

— Plaintiff,  a  man,  without  any  lady,  went 
into  the  ladies'  waiting  room  of  a  union 
depot,  there  being  a  different  room  pro- 
vided for  gentlemen,  and  about  dusk  went 
into  the  "ladies'  private  room,"  and  when 
ordered  out  refused  to  go,  and  was  then 
taken  by  the  collar  and  put  out  upon  the 
platform,  receiving  no  personal  injuries, 
and  his  clothes  not  being  torn,  //eld,  that 
he  was  not  entitled  to  recover.  Toledo,  IV, 
<S-  PV.  R.  Co.  V.  Williams,  yj  III.  354. 

6.  Contributory  Negligence, 

110.  Effect  as  defense,  generally.* 

— To  an  action  against  a  company,  to  re- 
cover damages  on  account  of  personal  in- 
juries sustained  through  neglect  by  the 
company  to  keep  its  depot  grounds  and 
approaches  in  safe  condition,  contributory 
negligence  is  a  complete  defense.  Mont- 
gomery &*  E.  /i.  Co.  V.  Thompson,  77  Ala, 
448,  54  Am.  Rep.  72. 

If  a  company  keeps  its  yard  in  proper 
repair  for  the  purpose  of  hauling,  and  the 
damage  occurs  by  reason  of  the  plaintiff  or 
his  agent  undertaking  to  use  a  part  of  the 
yard  not  designed  for  that  purpose,  or  arises 
from  want  of  ordinary  care  to  avoid  the 
injury,  either  in  the  manner  of  driving  or  in 
the  plaintiff's  conduct  at  the  time  of  the 
injury,  there  can  be  no  recovery.  Central 
R.  Co.  V.  Gleason,  69  Ga.  200. 

Plaintiff  lived  at  a  small  station,  and  did 
business  near  the  track,  and  his  storehouse 
was  used  as  a  deposit  for  the  company's 
freight.  He  had  been  traveling  over  the 
road  on  a  pass  issued  to  him  as  the  com- 
pany's agent  at  that  place,  and  was  injured 
afcer  leaving  the  train  on  his  return  and 
starting  for  his  home,  //eld,  that  he  was 
estopped  by  using  the  ticket  from  denying 
that  he  was  agent.  Central  R.  Co.  v.  Hen- 
derson, 69  Ga.  715. 

Under  the  rule  in  Georgia,  where  a  pas- 
senger is  injured,  and  is  not  entirely  free 
from  negligence  himself,  the  damtiges  may 
be  apportioned ;  but  in  this  case,  where 
plaintiff's  injury  was  disconnected  from  the 

*  Injury  .'it  station.  Contributory  negligence 
in  leaving  h')rse  untied,  sec  note,  50  Am.  Si  Eno. 
K.  Cas.  2^, 


STATIONS   AND  DEPOTS,  111-113. 


225 


fanning  of  trains,  and  resulted  from  a  hole 
in  the  ground  used  by  the  company,  near 
the  depot,  into  which  plaintiff  fell  after 
leaving  the  train,  he  cannot  recover,  unless 
he  is  wholly  free  from  fault.  Central  R.  Co. 
V.  Henderson,  69  Ga.  715. 

A  person  injured  by  an  engine  while 
walking  through  the  yards  of  a  company 
cannot  recover  damages  when  he  was  guilty 
of  contributory  negligence,  and  where  the 
servants  of  the  company  exercised  due  dili- 
gence to  avert  the  accident.  Missouri  Pac. 
R.  Co,  V.  McKernan,  82  Tex.  204,  175.  W. 
Rep.  1057. 

111.  Degree  of  care.  —  Passengers 
about  a  station  at  night  when  trains  are 
passing  should  look  where  they  are  step- 
ping and  be  observant  of  what  is  going  on 
around  them.  Sargent  v.  St.  Louis  6^  S.  F. 
R.  Co.,  58  Am.  &*  Ettg.  R.  Cas.  184,  1 14  Mo. 
348,  21  S.  IV.  Rep.  823,  19  L.  R.  A.  460. 

A  person  who  is  accquainted  with  the 
peculiar  construction  of  the  platform  at  a 
railway  station  does  not  have  imposed  upon 
him  the  necessity  for  a  greater  degree  of 
caution  than  is  incumbent  upon  all  parties 
boarding  a  car.  Gulf,  C.  &*  S.  F.  R.  Co.  v. 
Fox,  ( Tex.)  33  Am.  &*  Eng.  R.  Cas.  543,  6 
S.  W.  Rep.  569. 

112.  Failure  to  use  ordinary  dili- 
gence.— A  person  who,  in  broad  daylight, 
while  crossing  a  foot  bridge  at  a  railway 
station,  strikes  her  head  against  a  plank  on 
which  a  porter  was  standing  cleaning  a 
lamp,  is  not  entitled  to  go  to  the  jury  on  a 
question  of  the  negligence  of  the  company. 
Wat  kins  v.  Great  Western  R.  Co.,  37  L.  T. 
193.  25  W.  R.  905,  46  L.J.  C.  P.  D.  817. 

Plaintiff's  decedent  left  a  station  and  at- 
tempted to  cross  a  side  track  between  cars 
of  p  'landing  train,  which  had  been  sepa- 
rate md  were  two  or  three  feet  apart,  but 
whei,  e  was  between  the  cars  a  train  was 
backed  tiown  and  the  cars  were  shoved  to- 
gether, causing  his  death.  The  decedent 
appeared  to  be  in  full  possession  of  his  facul- 
ties, and  there  was  nothing  to  prevent  the 
train  from  having  been  seen  and  heard. 
Held,  that  there  was  such  contributory  neg- 
ligence as  would  prevent  a  recovery,  though 
there  may  have  been  negligence  on  the  part 
of  the  company.  Bertelson  v.  Chicago,  M. 
&*  St.  P.  R.  Co.,  5  Dai.  313,  40  A^.  W.  Rep. 
531.— Approving  Chicago,  R.  I.  &  P.  R. 
Co.  V.  Houston,  95  U.  S.  702 ;  Schofield  v. 
Chicago.  M.  &  St.  P.  R.  Co.,  114  U.  S.  615, 
5  Sup.  Ct.  Rep.  1125;  Holland  v.  Chicago. 
7  D.  R.  D.— IS 


M.  &  St.  P.  R.  Co.,  i8  Fed.  Rep.  247 ;  Rog- 
stad  V.  St.  Paul,  M.  &  M.  R.  Co.,  31  Minn. 
208,  17  N.  W.  Rep.  287. 

Persons  standing  on  a  platform,  waiting 
for  a  train,  are  required  to  give  reasonable 
attention  to  their  personal  safety;  and  if 
they  fail  to  do  so,  and  stand  so  as  to  be 
struck  by  trains,  there  can  be  no  recovery. 
Chicago,  B.  S-  Q.  R.  Co.  v.  Mahara,  i,l  III. 
App.  208. 

The  neglect  of  a  company  to  provide 
suitable  lights  at  a  station  does  not  relieve 
a  passenger  from  the  duty  of  exercising  or- 
dinary care  while  in  and  about  the  same. 
Sargent  v.  St.  Louis  <S-  S.  F.  R.  Co.,  58 
Am.  &*  Eng.  R.  Cas.  184,  114  Mo.  348,  21  S. 
W.  Rep.  823.  19L.R.  A.  460. 

113.  Biglit  to  assume  safety  of 
premises,  etc. — A  passenger,  on  leaving 
a  train  at  night,  has  a  right,  within  reason- 
able limits,  to  rely  upon  the  presumption 
that  the  company  has  done  its  duty,  and 
that  the  platform  of  its  depot  is  safe.  Louis- 
ville, N.  A.  &»  C.  R.  Co,  V.  Lucas,  119  Ind. 
583,  2\  N.E.  Rep.  968. 

It  is  not  contributory  negligence  to  as- 
sume that  it  will  be  safe  to  go  through  an 
open  passage  left  by  a  railway  company  to 
give  access  to  its  depot,  even  though  the 
track  ends  near  by  and  is  not  protected  by 
snubbing  posts.  Grand  Rapids  &•  /.  R.  Co. 
v.  Martin,  41  Mich.  667. 

Where  a  passenger  is  injured  on  leaving  a 
station,  by  obstructions  in  a  passageway 
which  was  there  by  the  recognition  and  as- 
sent of  the  company,  and  held  out  by  it  as 
one  of  the  passageways  for  the  entrance 
and  exit  of  passengers,  the  passenger  is  jus- 
tified in  using  it,  regardless  of  who  met  the 
expense  of  keepi.ig  it  in  repair.  Delaware, 
L.  &*  W.  R.  Co.  v.  Trautwein,  41  Am.  &* 
Eng.  R.  Cas.  187,  52  A'^,  /.  L.  169,  7  L.  R.  A, 
435.  >3  A^/.  L.  /.  72.  19  Atl.  Rep.  178.— 
Reviewing  Beard  v,  Connecticut  &  P.  R. 
R.  Co.,  48  Vt.  loi. 

It  seems  that  under  ordinary  circum- 
stances a  traveler  is  justified  in  going  upon 
a  platform  erected  for  the  accommodation 
of  passengers  and  in  waiting  there  to  take 
any  passing  train.  Dobiecki  v,  >harp,  8  Am. 
&*  Eng,  R.  Cas,  485, 88  N.  V,  203.— Distin- 
guishing Rigg  V.  Manchester,  S.  &  L.  R. 
Co.,  12  Jur.  N.  S.  525;  Watkins  v.  Great 
Western  R.  Co.,  37  L.  T.  193. 

A  passenger  may  instinctively  regard  a 
platform  erected  for  passengers  as  a  safe 
and  proper  place.     Archer  v.  New  York, 


226 


STATIONS   AND   DEPOTS,  114. 


H- 


N. H.  6*  H.  R.  Co.,  io6  N.  Y.  589.  i^N.E. 
Rep.  318.  II  N.Y.  S.  R.  32,  885,  9  Cent.  Rep. 
233 ;  affirming  36  Hun  644,  mem. 

Plaintiff  wished  to  take  passage  on  a  pal- 
ace car,  but  upon  going  to  tlie  door  of  the 
car  she  found  it  locked  and  entered  a  com- 
mon car  adjoining,  where  she  left  some  bag- 
gage and  wraps,  and  started  for  the  depot 
platform  to  find  the  person  having  charge 
of  the  palace  car ;  in  stepping  oil  the  car  she 
slipped  and  fell  on  a  piece  of  ice  which  was 
on  the  platform.  Held,  that  the  fact  of  open- 
ing the  doors  of  the  cars  was  a  notification 
to  passengers  to  enter,  and  that  the  platform 
was  safe  and  free  from  obstructions;  and 
plaintiff  was  not  chargeable  with  contribu- 
tory negligence,  if  it  would  not  have  appeared 
to  a  reasonably  prudent  person  that  there 
was  any  danger  in  stepping  on  the  plat- 
form. Seymour  v.  Chicago,  B.  &*  Q.  R.  Co., 
lBiss.(U.  5.)  43. 

114.  Illustrations  of  contributory 
negligence.— (1)  What  is. — On  a  station 
platform  tiiere  were  two  doors,  in  close  prox- 
imity to  each  other;  the  one  had  painted 
over  it  the  words  "  for  gentlemen,"  the 
other  had  over  it  the  words  "  lamp  room." 
The  plaintiff,  having  occasion  to  go  to  the 
urinal,  inquired  of  a  stranger  where  he 
should  find  it,  and  by  mistake  opened  the 
door  of  the  lamp  room,  and  fell  down  stairs, 
and  was  injured.  Held,  that  a  nonsuit  was 
proper.  Toomey  v.  London,  B.  &*  S.  C.  R. 
Co.,  3  C.  B.  N.  S.  146,  27  L.J.  C.  P.  39. 

Plaintiff  arrived  at  a  station  at  night, 
where  he  had  some  acquaintance,  and  in- 
quired for  a'privy  of  a  stranger,  who  pointed 
in  the  direction  of  one  on  a  river  bank 
about  fifty  yards  from  the  station.  The 
station  was  well  lighted,  but  the  privy  was 
not,  and  an  intervening  building  obstructed 
the  light  from  the  station.  In  attempting 
to  find  it  he  fell  down  the  bank  of  the  river 
and  was  injured.  Held,  that  he  was  guilty 
of  contributory  negligence  in  not  making 
further  inquiry.  Montgomery  &*  E.  R.  Co. 
V.  Thompson,  77  Ala.  448,  54  Am.  Rep.  72. 

The  wife  of  a  railroad  employ6,  in  taking 
her  husband  his  dinner,  liad  occasion  to 
cross  half  a  dozen  busy  tracks  that  lay  side 
by  side.  In  stepping  from  behind  cars  that 
■tood  on  one  of  the  tracks  she  was  struck 
and  injured  by  a  backing  engine  on  the  next 
track.  Held,  that  whether  or  not  the  rail- 
road company  was  negligent  in  running  the 
engine  at  a  prohibited  rate  of  speed  or  in 
failing  to  ring  its  bell,  the  woman  was  not 


exercising  ordinary  care,  and  could  not  re- 
cover. Pzolla  V.  Michigan  C.  R.  Co.,  19 
Am.  6-  Eng.  R.  Cas.  334,  54  Mich.  273,  20 
N.  W.Rep.  71. 

Plaintiff,  who  represented  a  hotel,  was 
running  to  meet  an  incoming  train  to  solicit 
patronage,  and  attempted  to  move  a  bag- 
gage truck  out  of  the  way,  but  moved  it  near 
the  edge  of  the  platform,  where  the  train 
struck  it  and  forced  it  against  him,  causing 
the  injury  sued  for.  Held,  such  contributory 
negligence  as  to  defeat  a  recovery,  unless, 
under  the  rule  of  comparative  negligence, 
the  jury  believe  that  the  negligence  of  the 
company  was  gross  in  allowing  the  truck  to 
remain  where  it  was  on  the  platform.  Illi- 
nois C.  R.  Co.  V.  Brookshire,  3  ///.  App.  225. 

In  such  case  it  appeared  that  the  com- 
pany had  provided  a  safe  and  convenient 
approach  to  its  station,  by  which  plaintiff 
might  have  entered  without  encountering 
the  truck ;  and  that  the  truck  stood  on  a 
place  not  intended  for  the  use  of  the  public. 
Held,  that  if  the  truck  was  in  plaintiff's  way 
he  should  have  turned  back  and  entered  by 
the  way  provided  by  the  company.  Illinois 
C.  R.  Co.  V.  Brookshire,  3  ///.  App.  225. 
Pzolla  V.Michigan  C.  R.  Co.,  19  Am.&'Eng. 
R.  Cas.  334,  54  Mich.  273,  20  N.  IV.  Rep.  71. 

The  fact  that  plaintiff  had,  on  a  certain 
day,  by  direction  of  the  conductor,  crossed  a 
track,  passing  around  a  fence  to  do  so,  to 
take  a  train  standing  in  an  unusual  place 
on  a  middle  track,  will  not  impose  such 
liability  on  a  railroad  company  as  to  excuse 
plaintiff  from  effects  of  his  own  negligence 
in  taking,  three  days  later,  this  unusual 
short  cut,  because  he  was  late  and  mis- 
takenly supposed  that  a  train,  standing  on 
the  same  middle  track,  was  the  train  he 
wished  to  take.  Such  facts  do  not  show 
plaintiff  to  have  been  put  in  a  sudden  posi- 
tion of  peril  by  the  fault  of  defendant,  so  as 
to  relieve  him  of  the  ordinary  precaution 
devolving  upon  a  prudent  man.  Foreman 
V.  Pennsylvania  R.  Co.,  i  Pa.  Dist.  233. 

Plaintiff  left  a  train  at  a  station  where 
there  were  two  exits,  one  from  the  station 
building  on  a  level  with  a  street,  and  an- 
other on  the  other  side,  where  stone  steps 
had  to  be  ascended  to  reach  the  street. 
Plaintiff,  though  acquainted  with  the  prem- 
ises, took  the  latter  course,  and  fell  and  was 
injured  by  reason  of  ice  on  the  steps.  It 
appeared  that  his  hands  and  arms  were  en- 
tirely free,  and  that  he  might  have  protected 
himself  by  grasping   a  rail   leading    from 


STATIONS  AND   DEPOTS,  115. 


227 


top  to  bottom  of  the  steps,  but  with  full 
knowledge  of  the  danger,  he  declined  to 
CO  so.  Held,  that  he  was  guilty  of  con- 
tributory negligence,  and  should  be  non- 
suited. Foster  v.  New  York  C.  &»  H.  R. 
Ji.  Co.,  2  How.  Pr.  N.  S.  {N.  Y.)  416. 

(2)  What  is  ftot.—A  passenger  alighted 
from  a  train  at  night  and  in  attempting  to 
cross  an  intervening  track  to  an  eating- 
house  was  struck  by  a  train  running  at  a 
rapid  rate  in  the  opposite  direction  from 
that  in  which  he  had  traveled.  The  interven- 
ing space  was  leveled,  with  the  ties  covered 
with  dirt,  and  the.e  was  no  evidence  that 
he  knew  that  there  was  another  track. 
HM,  that  tlie  court  could  not  say,  as  a 
matter  of  law,  that  he  was  guilty  of  con- 
tributory negligence,  especially  where  the 
evidence  was  somewhat  conflicting.  Rt'c/i- 
mond  &•  D.  R.  Co,  v.  Powers,  56  Am.  6- 
Eng.  R.  Cas.  296,  149  U.  S.  43,  13  5«/.  Ct. 
Rep.  748. 

Plaintiff  went  to  a  small  station  after 
night,  bought  his  ticket,  and  upon  the  ap- 
proach of  his  train  walked  across  a  plat- 
form, which  was  several  feet  above  the 
ground,  and  in  attempting  to  descend  from 
it  fell  and  was  injured.  He  charged  that 
the  steps  were  defective  and  that  the 
platform  was  not  lighted.  He/d,  that  he 
could  not  be  charged  with  contributory 
negligence  in  failing  to  call  for  a  light  or 
assistance,  where  he  pursued  the  usual 
course  of  passengers  at  the  station  in  at- 
tempting to  reach  trains.  Alabama  G.  S.  R. 
Co.  V.  Arnold,  30  Am.  6-»  Eng,  R.  Cas.  546, 
80  Ala.  600,  2  So.  Rep.  337. 

A  person  who,  in  passing  from  a  depot  to 
a  train,  is  obliged  to  cross  an  intervening 
track,  is  not  guilty  of  contributory  negli- 
gence in  failing  to  look  up  or  down  the 
track  to  see  whether  there  was  any  danger 
from  an  approaching  train,  and  in  approach- 
ing the  train  diagonally  from  the  station 
platform,  and  before  his  tra'ii  had  come  to 
a  full  stop.  Jewett  v.  Klein,  27  N.  J.  Eq. 
550;  affirming  26  N.J.  Eq.  474. 

1 15.  Failure  to  look  and  listcu.*— 
A  person  who,  Oi  approaching  a  place 
where  two  railroad  trains  had  met  and  were 
standing,  and  attempting  to  cross  the  tracks, 
without  stopping  to  look  and  listen,  is  in- 
jured by  one  of  the  engines  moving  slowly 
behind  him,  is  guilty  of  contributory  negli- 


*  See  also  CRossiNr.s,  Injuries  to  Persons, 
ETC,  AT,  2U1-285. 


gence,  which  bars  a  recovery  unless  the  per- 
sons in  charge  of  the  train  are  guilty  of 
wilful  or  intentional  wrong ;  and  the  mere 
failure  to  blow  the  whistle  or  ring  the  bell, 
as  required  by  statute,  is  not  such  negli- 
gence. East  Tenn.,  V.  &*  G.  R.  Co.  v. 
Kornegay,  92  Ala.  228,  9  So.  Rep.  557. 

A  passenger  who  is  waiting  for  a  train  on 
a  branch  road,  and  while  standing  on  the 
track,  thirty  feet  beyond  the  switch,  looking 
for  a  train  in  one  direction,  is  struck  by  an 
engine  approaching  from  behind  him,  whose 
headlight  can  be  seen  from  eighty  to  one 
hundred  yards,  is  guilty  of  contributory 
negligence,  which  bars  a  recovery  unless 
overcome  by  proof  of  gross  negligence— 
that  is,  reckless,  wanton  or  intentional  neg- 
ligence. Ensley  R.  Co.  v.  Chewning,  50  Am. 
&•  Eng.  R.  Cas.  46,  93  Ala.  24,  9  So.  Rep. 

458. 

A  person  was  walking  along  a  side  track 
when  he  was  struck  by  a  yard  engine  and 
killed.  He  was  well  acquainted  with  the 
locality,  and  placed  himself  in  this  position 
when  the  approaching  engine  was  very  near 
to  him,  without  looking  back  to  see  if  an 
engine  was  on  the  track.  The  engine  was 
too  close  to  him  when  he  got  near  the  track 
to  be  stopped.  Held,  that  his  negligence 
was  so  great  as  to  preclude  a  recovery. 
Austin  v.  Chicago,  R.  I.  Sf  P.  R.  Co.,  91 
///.  35.— Approved  in  Maxey  v.  Missouri 
Pac.  R.  Co.,  113  Mo.  I.  Quoted  in  Lake 
Shore  &  M.  S.  R.  Co.  v.  Blanchard,  15  111. 
App.  582. 

Plaintiff  was  caring  for  cattle  which  were 
loaded  for  siiipment,  and  were  standing  on 
the  outside  one  of  six  parallel  tracks,  in 
the  daytime.  He  had  crossed  the  several 
tracks  to  procure  water  for  the  cattle  and 
had  returned  to  the  fourth  or  fifth  track, 
and  upon  hearing  somebody  call  "  Look 
out !"  stopped  on  the  track,  and  was  struck 
by  a  moving  engine.  He  was  a  young  man 
of  unimpaired  sight  and  hearing,  and  there 
was  nothing  to  prevent  his  seeing  an  ap- 
proaching engine  for  a  considerable  distance 
either  way.  Held,  that,  as  a  matter  of  law, 
he  was  guilty  of  contributory  negligence. 
Rogstad  v.  St.  Paul,,  M.  &*  M.  R.  Co.,  14 
Am.  &*  Eng.  R.  Cas.  648,  31  Minn.  208,  17 
N.  IV.  Rep.  287.— Distinguishing  Mark 
V.  St.  Paul,  M.  &  M.  R.  Co.,  30  Minn.  493. 
Following  Abbett  v.  Chicago,  M.  &  St. 
P.  R.  Co..  30  Minn.  482.  —  Approved  in 
Bertelson  v.  Chicago,  M.  &  St.  P.  R.  Co.,  5 
Dak.  313,  40  N.  W.  Rep.  531. 


228 


STATIONS  AND   DEPOTS,  116,117. 


m 


i 


PlaintiR,  who  had  business  with  the  freight 
department  of  a  company,  was  struck  by  a 
car  while  standing  on  a  track  in  the  drilling 
yard  of  the  company,  with  his  back  towards 
the  only  direction  of  danger.  He/d,  that 
he  was  guilty  of  contributory  negligence. 
Diebold  V.  Pennsylvania  A\  Co.,  50  JV.  /.  L. 
478,  12  Cent.  Rep.  799.  14  Atl.  Rep.  576. 

Plaintiff  testified  that  at  about  seven 
o'clock  in  the  evening  he  stood  on  the 
platform  of  a  ticket  office.  A  train  wr-- 
going  east.  He  looked  down  'le  t 
eastward  and  saw  no  locomotive  lig/.t 
no  train  coming  westward.  Immedia..eiy 
after  looking  eastward  he  fated  the  other 
way  and  walked  ten  or  fifteen  feci,  to  a 
pavement,  intending  to  cross  the  north 
track  and  go  around  the  caboose  on  the 
rear  end  of  the  train  going  eastward  on  the 
south  track.  As  he  stepped  on  the  north 
track  a  train  coming  west  struck  him.  He 
did  not  look  just  at  this  time.  There  was 
evidence  that  tiie  engine  of  the  train  going 
west  did  not  sound  any  alarm  whistle  or 
ring  a  bell.  A  witness  for  plaintiff  testified 
that  the  west-bound  train  was  standing  in 
the  depot,  or  a  little  below  it,  when  plaintifl 
was  on  the  platform,  and  that  when  he  got 
on  the  track  he  was  in  the  light  of  the 
headlight.  Held,  that  the  court  was  right 
in  entering  a  nonsuit.  Carroll  \ .  Pennsyl- 
vania R.  Co.,  2  Penny  p.  (Pa.)  159. 

A  woman,  who  lived  on  the  north  side  of 
a  railroad,  intending  to  take  a  train  going 
east,  went,  in  the  daytime,  down  the  pas- 
sageway to  the  northerly  platform,  and 
found  a  freight  train  passing,  which  was 
going  west.  She  waited  until  it  had  passed, 
looked  east  to  see  if  any  other  train  was 
coming,  and  saw  none.  Her  attention  w.is 
then  attracted  to  the  incoming  train  on 
which  she  was  going,  and  knowing  that,  by 
the  rules  of  the  road,  while  one  train  was  at 
a  station  another  was  not  allowed  to  pass, 
and  that  one  train  was  not  allowed  to  fol- 
low another  within  five  minutes,  she,  without 
looking  again  to  see  if  a  train  was  coming, 
stepped  on  the  north  track,  attempted  to 
cross  at  a  place  where  there  was  no  plank- 
ing, and  was  struck  by  a  train  coming  from 
the  east,  a  few  hundred  feet  behind  the 
other  freight  train,  //eld,  that  there  was 
no  evidence  to  warrant  a  finding  that  plain- 
tiff was  in  the  exercise  of  due  care,  although 
for  neatly  twenty  years  persons  coming 
from  the  nurih  side  had  been  accustomed 
10  cross  to  the  south  platform  in  the  place 


where  plaintiff  was  attempting  to  cross. 
Wheelwright  v.  Boston  &»  A.  R.  Co.,  16  Am. 
&-  Ettg.  R.  Cas.  315,  135  Mass.  ^25. 

Plaintiff  was  crossing  defendant's  yard 
where  there  were  several  tracks,  and  where 
he  was  familiar  and  knew  of  the  frequency  of 
trains,  and  stopped  with  a  companion,  with 
one  foot  resting  on  a  rail,  when  there  was 
plenty  of  room  to  stand  safely  between 
tracks,  and  was  looking  at  a  train  passing 
on  another  track,  when  his  foot  was  crushed 
.y  an  engine  passing  on  the  track  on  which 
foot  rested.  Held,  that  he  was  guilty 
(ji  contributory  negligence,  antl  a  nonsuit 
should  have  been  granted.  Dclaney  v.  Mil- 
wank  e  &>  St.  P.  A\  Co.,  33  IFis.  67. 

A  -.  .  .  .n  was  on  a  side  track,  between 
which  an  1  the  main  track  there  was  a  centre 
platform  for  passengers.  Plaintiff  had  come 
to  the  station  to  meet  a  friend,  and  was  at- 
tempting to  cross  over  the  side  track  to 
reach  the  centre  platform,  when  the  engine 
and  tender,  which  had  been  detached  and 
switched  onto  the  side  track,  ran  over  and 
injured  him.  Plaintiff  was  looking  in  the 
opposite  direction  from  that  from  which  the 
engine  and  tender  were  coming.  It  ap- 
peared that  had  he  been  looking  he  must 
liave  seen  them  before  he  attempted  to  cross, 
as  it  was  only  a  second  or  two  from  the  time 
he  started  to  cross  until  he  was  struck,  and 
there  was  no  obstruction  to  his  view.  Held, 
that  the  accident  was  caused  by  his  own 
negligence  and  want  of  care,  and  defendant 
was  not  liable.  Casey  v.  Canadian  Pac,  R. 
Co.,  37  Am.&*  Eng.  R.  Cas.  172,  15  Ont.  574. 
—Quoting  Davey  v.  London  &  S.  W.  R. 
Co.,  1 2  Q.  B.  D.  70 ;  Com'r  for  Railways  v. 
Brown,  57  L.  T.  895. 

110.  Failure  to  heed  warnings.— 
Where  a  person  about  to  board  a  railroad 
train  at  night  was  warned  of  its  approach 
to  the  station,  could  have  heard  it  and  could 
have  seen  its  headlight  for  a  long  distance, 
but  walked  to  the  edge  of  the  platform  and 
was  struck  by  the  locomotive,  he  is  charge- 
able with  contributory  negligence,  whether 
intoxicated  or  not,  and  no  recovery  can  be 
had.  Pennsylvania  /i.  Co.  v.  Bell,  122  Pa. 
St.  58,  15  Atl.  Rep.  561.— Following  Car- 
roll V.  Pennsylvania  R.  Co.,  12  W.  N.  C. 
348.— Followed  in  Marland  v.  Pittsburgh 
k  L.  E.  R.  Co.,  123  Pa.  St.  487. 

117.  Disobedience  of  rules.— Pas- 
sengers cannot  be  supposed  to  be  ignorant 
of  the  necessity  and  use  of  platforms,  and 
when  a  platform,  which  they  must  know  was 


STATIONS  AND   DEPOTS,  118-121. 


m 


made  for  their  use,  is  in  plain  sight,  they 
cannot  properly  complain  that  they  are  not 
accommodated ;  they  are  required  to  con- 
form to  the  reasonable  business  arrange- 
ments of  the  railroad.  Mich^an  C.  /t.  Co. 
V.  Coleman,  28  Mich.  440, 12  Am.  Ry.  Rep,  59. 

118.  Taking  unusual  or  improp- 
er way  of  ingress  or  egress.— Plain- 
tiff, at  his  own  request,  was  put  off  a  train 
some  distance  from  the  depot  on  a  dark 
night,  but  reached  the  depot  in  safety,  and 
afterwards,  instead  of  following  tlie  public 
road,  relied  on  his  knowledge  of  the  locality 
and  sought  to  follow  a  by-path  which  passed 
a  pit  on  the  land  of  the  railroad,  which 
he  himself  had  formerly  cleaned  out.  He 
missed  the  path,  fell  into  the  pit  and  was 
injured.  Held,  that  he  could  not  recover, 
although  the  underbrush  had  been  cut  by  the 
railroad  hands,  while  plaintiff  was  absent 
and  without  his  knowledge,  and  a  snag 
which  was  left  in  the  pit  caused  the  injury. 
Central  R,  Co.  v.  Henderson,  69  Ga.  715. 

One  who  attempts  to  enter  a  station  by  a 
route  not  meant  for  passengers,  and  which  is 
in  fact  shut  off  by  a  barbed  wire  fence,  be- 
comes a  trespasser  and  assumes  every  risk 
which  might  possibly  occur,  and  if  he  is 
killed  on  his  way  to  the  train  which  he  in- 
tended to  board,  a  nonsuit  is  unquestionably 
right,  in  an  action  to  recover  damages  for 
his  death.  Comfy  v.  Pennsylvania  R.  Co., 
(Pa.)  \2  All.  Rep.  496. 

Where  a  company  maintains  a  proper  and 
safe  place  for  crossing  from  one  track  to 
another  at  a  station,  of  which  a  passenger 
is  aware,  it  is  not  liable  for  injuries  sustained 
by  a  passenger  who  attempts  to  cross  the 
tracks  at  an  improper  place,  without  any 
invitation  from  the  company's  employ6s. 
Wilby  v.  Midland  R.  Co.,  35  L.  T.  244. 

A  company  is  not  bound  to  maintain  any 
but  the  usual  and  direct  road  for  access  and 
egress  to  and  from  its  station ;  and  a  pas- 
senger taking  an  indirect  road,  which  had 
not  been  appropriated  to  the  purposes  of  a 
footway,  cannot  hold  the  company  respon- 
sible for  damages  or  accident  occasioned 
thereby.  Walker  v.  Great  Western  R.  Co., 
8  U.  C.  C.  P.  161.— Distinguishing  Mar- 
tin V.  Great  Northern  R.  Co.,  16  C.  B.  179. 

119.  Going  outside  yard  to  board 
car.— A  company  is  liable  for  injuries  re- 
ceived by  a  passenger,  seeking  to  board  one 
of  its  trains  at  night,  who  finds  no  one  to 
inform  him  how  to  reach  the  sleeping  car 
attached  to  the  tram,  which  is  left  standing 


outside  of  the  yards,  and  to  which  a  side- 
walk, erected  by  the  company  under  a  con- 
tract with  the  city,  leads  in  a  direct  route, 
which  the  passenger  follows,  and  from  which 
he  falls  by  reason  of  defective  or  insufficient 
lights  at  that  part  of  the  station  approach. 
Moses  V.  Louisville,  N.  0.  5-  T.  R.  Co.,  30 
Am.  &•  Eng.  R.  Cas.  556,  39  La.  Ann.  649, 
2  So.  Rep.  567. 

120.  Walking  on  unlighted  plat- 
form.— It  is  not  only  negligence,  but  reck- 
lessness, for  a  passenger  who  is  staying  at  a 
railway  station,  on  a  dark  night,  when  the 
platform  lamp  has  been  temporarily  re- 
moved, to  go  out  on  the  platform  and  walk 
to  the  end  of  it.  Reed  v.  Axtell,  33  Am.  &* 
Eng.  R.  Cas.  503,  84  Va.  231,  45.  E.  Rep. 
587. 

Plaintiff,  a  female  passenger,  arrived  at  a 
station  late  at  night,  and  declined  the  offer 
of  an  employ^  to  conduct  her  to  a  hotel, 
preferring  to  spend  the  residue  of  the  night 
at  the  station.  While  the  station  lamp  was 
being  trimmed  she  walked  across  the  plat- 
form, and  fell  therefrom  and  was  injured. 
Held,  that  she  was  guilty  of  contributory 
negligence,  and  could  not  recover.  Reed  v. 
Axtell,  33  Am.  &*  Eng.  R.  Cas.  503,  84  Va. 
231,45.  £".  Rep.  587, 

121.  platform    slippery    with 

ice,  etc. — A  passenger  has  the  right  to 
assume  that  a  platform,  over  which  it  is 
necessary  to  pass  to  reach  the  cars,  is  safe. 
His  going  thereon  when  there  is  ice  and 
snow  is  not,  of  itself,  contributory  negli- 
gence. Weston  V.  New  York  El.  R.  Co.,  73 
N.  Y.  595;  affirming  10/.  <S-  S.  156.— Ap- 
plied IN  Van  Ostran  v.  New  York  C.  &  H. 
R.  R.  Co.,  35  Hun  (N.  Y.)  590.  Followed 
IN  Dobiecki  v.  Sharp,  8  Am.  &  Eng.  R.Cas. 
485.  88  N.  Y.  203. 

Plaintiff  desired  to  enter  a  palace  car,  but 
finding  the  door  locked,  stepped  back  on 
the  platform,  in  search  of  the  person  in 
charge  of  the  palace  car,  and  slipped  and 
fell  on  a  piece  of  ice  on  the  platform.  Held, 
that  the  company  was  not  liable,  if,  having 
seen  the  ice,  she  could  by  reasonable  care 
have  avoided  stepping  on  it.  Seymour  v. 
Chicago.  B.  (S-  Q.  R.  Co.,  3  Biss.  (17.  S.)  43. 

The  plaintiff  was  obliged  to  use  ordinary 
care  and  prudence  in  descending  the  steps 
and  landing  on  the  platform,  and  if  at  any 
moment  it  would  have  appeared  to  a  rea- 
sonably prudent  person  that  there  was  risk 
of  danger  to  herself  in  proceeding,  then,  if 
she  did  proceed,  it  was  at  her  own   peril, 


230 


STATIONS  AND   DEPOTS,  123,  123. 


i  i 


even  though  the  defendant  was  guilty  of 
negligence.  Seymour  v.  Chicago,  B,  &*  Q. 
K.  Co.,3Biss.  (t/.  5.)43- 

But  if,  on  the  other  hand,  taking  all  the 
circumstances  of  the  situation  together, 
there  would  not  have  appeared  to  a  rea- 
sonably prudent  person  any  danger  in  de- 
scending the  steps  and  going  on  the  plat- 
form, then  she  cannot  be  said  to  be  guilty 
of  contributory  negligence,  though  in  fact 
injury  followed  what  she  did.  Seymour  v. 
aiica^ro.  B.  &»  Q.  a:  Co.,  3   B/ss.   iU.  S.) 

43- 

The  jury  may  take  into  consideration  the 
degree  of  light,  the  time  of  day  the  fact 
that  plaintiff  saw  the  piece  of  ice,  and 
the  position  she  occupied  when  she  first 
saw  it.  Seymour  v.  Chicago,  B.  &*  Q.  B.  Co., 
Zliisa.  {U.  S.)  43 

122.  Crossing  track  in  front  of 
moving  train.* — A  woman  forty-seven 
years  old,  after  purchasing  a  ticket,  found 
it  necessary  to  cross  the  track  to  a  plat- 
form on  the  other  side,  in  order  to  enter 
her  train.  She  was  notified  of  the  ap- 
proach of  the  train  in  time  .0  cross,  and 
when  almost  across  returned  to  the  ticket 
office  for  a  bundle  which  she  had  left, 
and  then,  after  being  warned  of  the  dan- 
ger, attempted  to  cross  again,  and  was 
struck  and  killed.  Held,  that  her  death 
resulted  from  her  own  negligence,  and 
there  could  be  no  recovery.  Baltimore  &* 
O.  A'.  Co.  v.  Stale,  21  Am.  &•  Eng.  R.  Cas. 
202.  63  Md.  135.— Quoted  in  Baltimore 
&  Y.  Turnpike  Road  v.  Cason,  72  Md.  377. 

A  woman,  having  opportunity  to  make 
inquiries  about  the  train  she  was  to  take, 
failed  to  do  so,  and  then  attempted  in  broad 
daylight  to  cross  the  tracks  in  front  of  an 
approaching  train,  which  she  saw,  and  which 
was  only  a  short  distance  away,  and  was 
struck  by  the  engine  and  injured,  the  com- 
pany having  made  no  provision  for  and 
held  out  no  invitation  to  her  to  cross  where 
she  did.  Held,  that  she  could  not  recover. 
Young  V.  Old  Colony  R.  Co.,  156  Mass.  178, 
30  N.  E.  Rep.  560.— Followed  in  Con- 
nolly V.  New  York  &  N.  E.  R.  Co.,  158 
Mass.  8. 


*  See  also  Crossings,  Injuries  to  Persons, 
ETC,  AT.  313-320;  Contributory  Negu- 
genck,  30,  37. 

Contributory  negligence  in  persons  who  are 
injured  by  cars  being  moved  about  station,  and 
especially  by  detached  cars,  see  note,  1 8  L.  R. 
A.  65. 


A  person  Is  not  warranted  in  assuming 
that  trains  will  not  cross  each  other  at  a 
station,  and  in  shutting  his  eyes  and  walk- 
ing ahead  on  that  assumption.  Connolly  v. 
New  York  <S-  N.  E.  R.  Co.,  158  Mass.  8,  32 
A'.  E,  Rep.  937.— Following  Debbins  v. 
Old  Colony  R.  Co.,  154  Mass.  402  ;  Young 
V.  Old  Colony  R.  Co.,  156  Mass.  178;  Tyler 
V.  Old  Colony  R.  Co.,  157  Mass.  336. 

No  presumption  of  negligence  arises 
from  the  crossing  of  a  track  at  a  railroad 
station,  in  order  to  get  to  and  take  passage 
upon  a  train  on  another  track,  when  that  is 
the  only  way  by  which  such  trains  can  be 
reached ;  nor  is  it  necessarily  negligent  to 
start  across  before  the  train  which  the  pas- 
senger intends  to  take  has  come  to  a  full 
stop.  Kohler  v.  Pennsylvania  R.  Co.,  135 
Pa.  St.  346,  19  Atl.  Rep.  1049. 

A.,  without  giving  notice  of  his  intention 
to  return,  left  a  train  on  the  east  track  to 
check  his  baggage  in  the  station  west  of 
the  tracks.  On  coming  out  of  the  station 
his  train  had  started,  and  a  train  on  the 
west  track  was  moving  up  in  plain  sight. 
This  train  had  waited  for  the  train  on  the 
east  track  to  start,  before  it  moved  up  in 
the  opposite  direction.  A.  ran  across  the 
west  track  in  front  of  the  train  to  board  the 
train  on  the  east  track,  and  by  one  of  the 
trains  was  fatally  injured.  Held,  that,  as  a 
matter  of  law,  he  was  guilty  of  contributory 
negligence.  Chaffee  v.  Old  Colony  R.  Co.,  52 
Am.  &*  Eng.  R.  Cas.  366,  17  R.  /.  658,  24 
Atl.  Rep.   141. 

123.  Jumping  in  lY'ont  of  moving 
train  —  Leaving  team  unliitclied.— 
Leaving  his  young  team  unhitched  and  un- 
attended near  the  track,  plaintiff  crossed 
the  track  and  went  upon  the  depot  platform, 
whence  he  could  see  the  track  westward  but 
not  eastward.  No  regular  train  was  due. 
Hearing  some  one  say  a  train  was  coming, 
he  jumped  to  reach  his  team.  An  engine 
was  passing  from  the  east,  without  warning, 
at  thirty  miles  an  hour,  and  as  plaintiff 
jumped  from  the  platform  he  landed  on  the 
forward  part  of  the  engine,  and  was  injured. 
He  had  jumped  first  upon  a  lower  platform, 
from  which  he  could  have  seen  the  engine 
had  he  looked,  but  he  testified  that  he 
neither  saw  nor  heard  anything.  Held,  that 
he  was  guilty  of  contributory  negligence. 
Olson  V.  Chicago,  M.  &•  St.  P.  R.  Co.,  81 

JVis.  41,  50  A^.  JV.  Rep.  412,  1096.  — DISTIN- 
GUISHED IN  Schmolze  v.  Chicago,  M.  &  St. 
P.  R.  Co  ,  83  Wis.  659. 


STATIONS   AND   DEPOTS,  124-180. 


231 


»35 


124.  Going  under  car.*— Where  a 
person  in  going  to  a  railroad  depot  finds  a 
freight  train  across  the  sidewalit,  and  is  told 
by  the  freight  conductor  to  pass  under  the 
end  of  a  freight  car,  and  while  passing 
under  is  injured,  section  54  of  the  railroad 
and  warehouse  law  has  no  application  to  the 
case.  That  section  applies  only  to  climb- 
ing, stepping,  standing  upon,  clinging  to,  or 
in  any  way  attaching  one's  self  to  a  locomo- 
tive engine  or  car,  either  stationary  or  in 
motion  on  the  track.  Chicago,  B.  &*  Q.  K. 
Co.  V.  Sykes.  2  Am.&'  Etig.  K.  Cas.  254,  96 
///.  162;  reversing  i  ///.  App.  520. 

125.  Passing  between  cars.!  — 
PlaintiflF's  declaration  showed  that  he  re- 
ceived a  personal  injury  in  attempting  to 
pass  between  cars  of  a  freight  train,  to 
which  was  attached  an  engine,  with  steam 
up,  and  which  was  liable  to  start  at  any 
moment,  and  without  permission  or  notice 
to  any  one  in  charge  of  the  freight  train, 
or  having  authority  over  it,  to  reach  a  pas- 
senger train  standing  on  the  other  side. 
Held,  that  it  showed  such  negligence  on 
his  part  as  would  preclude  a  recovery.  Chi- 
cago &*  N.  W.   R.  Co.  V.  Coss,  73  ///.  394. 

126.  Voluntarily  assuniingr  or  go- 
ing into  place  of  <langcr.|— It  is  con- 
tributory negligence  in  one  (i)  to  attempt 
to  reach  a  depot  along  the  right  of  way  in 
the  face  of  a  train  which  he  knew  was  liable 
to  start  at  any  moment;  (2)  to  persist  in 
such  attempt  after  the  train  has  started, 
and  to  attempt  to  make  a  given  point  in 
advance  of  the  train ;  (3)  to  attempt  to 
board  a  moving  train.  French  v.  Detroit, 
G.  H.  &-  M.  R.  Co.,  89  Mich.  537.  50  A^.  VV. 
Rep.  914. 

A  person  standing  within  a  space  of  three 
feet  between  a  railroad  track  and  a  raised 
platform  while  a  train  passes,  thinking  that 
there  is  sufficient  room  to  stand  without 
being  struck  by  the  cars,  and  who  is  injured 
by  the  passing  train,  is  guilty  of  contribu- 
tory negligence,  and  cannot  recover  for  the 
injuries  so  received,  notwithstanding  his 
dangerous  position  was  seen  by  the  em- 
ployes of  the  company,  if  the  negligence  of 
the  company  was   not  wilful   or   wanton. 


*Sce  also  Crossings,  Injuries  to  Persons, 
ETC,  AT,  312. 

t  See  also  Crossings,  Injuries  10  Persons, 
ETC,  AT,  308-311. 

X  See  also  Contributory  Negligence,  32- 
35. 


Esrey  v.  Southern  Pac.  Co.,  88  Cal  399,  26 
Pac.  Rep.  211. 

127.  Intoxication   —   Proximate 

cause.*— Where  plaintif!  sues  for  an  injury 
received  when  about  to  enter  a  car,  it  is  un- 
important whether  he  was  drunk  or  not, 
unless  it  be  shown  that  the  intoxication 
contributed  to  the  injury.  Houston  &*  T. 
C.  R.  Co.  V.  Reason,6i  Tex.  613. 

7.  Procedure  in  Actions  for  Injuries. 

128.  Wbo  may  be  sued  — Party 
defendant.  —  A  person  while  passing 
along  the  platform  of  the  station  of  defend- 
ant company,  in  order  to  get  to  the  adjoin- 
ing station  of  another  company,  and  injured 
through  the  negligence  of  one  of  the  de- 
fendant's servants,  is  entitled  to  recovery. 
Tebbutt  V.  Bristol  6-  E.  R.  Co..  40  L.  J.  Q. 
B.  78,  23  L.  T.  772,  L.  R.6Q.  B.  73,  19  W. 

R.  383. 

And  such  person  may  recover  although 
he  was  on  such  platform  for  the  purpose  of 
passing  from  the  terminus  of  a  second 
company  to  the  booking  office  of  a  third, 
the  stations  of  the  three  companies  adjoin- 
ing and  the  passengers  of  each  company 
being  in  the  habit  of  passing  directly  from 
one  to  the  other.  Tebbutt  v.  Bristol  &»  E. 
R.  Co.,  L.  R.  6  Q.  B.  73.  19  W.  JP.  383,  40 
L.  J.  Q.  B.  78,  23  L.  T.  772. 

120. lessee  company.— Where  a 

union  depot,  with  the  yard  or  grounds  an- 
nexed, is  the  property  of  Vko  companies,  a 
third  company,  having  acquired  by  lease 
tlie  right  to  use  the  property  in  common 
with  them,  for  the  arrival  and  departure  of 
its  trains,  with  the  use  of  the  waiting  rooms, 
ticket  office,  baggage  room,  etc.,  is  liable  to 
passengers  and  the  public  generally,  in  rela- 
tion to  the  property,  as  if  it  were  the  owner 
in  fee.  Montgomery  &*  E.  R.  Co.  v.  Thomp' 
son,  77  Ala.  448,  54  Am.  Rep.  72. 

And  the  lessee  company  owes  the  same 
duty  to  passengers  of  the  lessor  company 
lawfully  at  the  depot  or  on  the  ground  as  it 
does  to  its  own.  Haff  v.  Minneapolis  &»  St. 
L.  R.  Co.,  4  McCrary  {U.  S.)  622,  14  Fed. 
Rep.  558. 

130.  Recovery  over  against  mail 
contractor. — Defendant  was  under  a  con- 
tract with  the  government  to  carry  the 
mails  between  a  certain  station  in  a  city 

•  See  also  Contributory  Neglicenck,  27j 
Crossings,  Injuries  to  Persons,  etc.,  at, 
212 ;  Carriage  of  Passengers,  363. 


w^ 


232 


STATIONS  AND  DEPOTS,  131-134. 


il! 


m 


If 

r 


■  I  t  V' 


31 


and  the  post-oflicc,  and  left  some  sucks  on 
a  sidewalk  at  the  side  of  the  station,  over 
which  a  passenger  fell  and  was  injured. 
The  railroad  company  was  held  liable  for 
the  injury,  and  brought  an  action  over 
against  defendant.  /fM,  that  the  com- 
pany was  not  a  joint  tort  feasor  with  de- 
fendant so  as  to  prevent  a  recovery.  0/t/ 
Colony  R.  Co.  v.  Slavens,  38  Am.  tS*  Enj^.  A\ 
Cas.  382,  148  Moss.  363,  19  A'.  /T.  /u/.  372. 

131.  PleaiUug— Coniiilaiiit.-Plain- 
tiil  sued  for  an  injury  received  in  stepping 
from  a  train  to  a  passenger  station,  and 
charged  in  his  complaint  that  the  platform 
"  had  been  suffered  to  get  out  of  repair  and 
wholly  unsuitable  for  the  reception  of  pas- 
sengers," and  then  recited  that  it  had  been 
allowed  to  settle  down  in  the  centre,  which 
caused  plaintiff  to  slip  and  fall.  //M,  that 
such  complaint  does  not  sufficiently  charge 
negligence.  Pennsylvania  Co.  v.  Marion,  27 
Am.  &*  Eng.  R.  Cas.  132,  104  Ind.  239,  3 
N.  E.  Rep.  874.— Quoted  in  Texas  &  P.  R. 
Co.  V.  Miller.  79  Tex.  78. 

132. replication.— To  an  action 

for  assault  and  battery  defendant  pleaded 
that  he  was  the  station  agent  of  a  railroad 
company,  and  that  the  alleged  assault  was 
necessarily  committed  in  removing  plaintiff 
from  the  station  house,  when,  he  persisted 
in  remaining  after  defendant  had  requested 
him  to  leave.  Plaintiff  replied,  setting 
forth  the  obligation  of  the  company  as  a 
common  carrier,  and  alleging  that  he  went 
into  the  station  house  and  there  purchased 
a  ticket  to  another  station,  and  that  while 
he  was  waiting  for  the  train,  defendant 
committed  the  assault.  Htld,  on  special 
demurrer— (I)  that  the  replication  was  in- 
sufficient, because  it  did  not  allege  that  the 
train  on  which  he  intended  to  go,  and  the 
departure  of  which  he  was  then  awaiting, 
was  expected  soon  to  leave ;  (2)  that  it 
was  not  necessary  to  allege  in  the  replica- 
lion  that  plaintiff  went  into  the  station 
house  with  the  purpose  of  traveling  upon 
the  cars,  but  that  it  was  sufRcient  if  it  ap- 
peared that  such  purpose  was  formed  after 
his  entry  and  before  the  assault.  Harris 
v.  Stevens,  31  Vt.  79. 

133.  Evidence— Admissibility.*— 
In  an  action  to  recover  for  injuries  received 
at  a  station,  by  being  struck  by  an  incoming 

*  Injuries  to  passengers  about  platforms.  Ad- 
missibility of  evidence  as  to  similar  accidents 
at  other  stations,  sec  47  Am.  &  Eng.  R.  Cas. 
528,  abstr. 


train,  plaintiff  claimed  to  have  been  misled 
by  information  that  the  train  which  struck 
him  was  late,  whereas  in  fact  it  was  on 
time,  or  nearly  so,  and  that  acting  upon 
such  information,  he  was  crossing  the  track 
when  it  suddenly  ran  upon  and  struck  him. 
Held,  that  it  was  competent,  to  rebut  any 
inference  of  contributory  negligence  that 
might  arise  from  the  circumstances  of  the 
accident,  to  introduce  declarations  of 
strangers  to  the  record,  made  in  his  pres- 
ence, that  the  train  was  late.  Lake  Shore 
&•  M.  S.  R.  Co.  V.  Herrick,  50  Am,  <S>»  Eng. 
R.  Cas.  25,  49  O/iio  St.  25,  29  N.  E.  Rep.  1052. 

Where  it  is  material  to  establish  titat 
plaintiff  was  at  the  station  to  take  passage 
on  a  train,  a  declaration  made  by  him  as  he 
left  his  house  on  his  way  to  the  station, 
that  he  was  going  to  another  station  on  the 
same  railway,  is  competent  evidence  to  es- 
tablish his  character  as  a  passenger.  Lake 
Shore  &•  M.  S.  R.  Co.  v.  Herrick,  50  Am.  6«« 
Eng.  R.  Cas.  25,  49  O/ito  St.  25,  29  A'.  E. 
Rep.  1052. 

The  condition  of  the  crossing  at  the  time 
of  the  accident,  whether  thronged  with  peo- 
ple or  otherwise,  is  a  material  circumstance, 
and  evidence  tending  to  prove  its  condition 
in  this  respect  is  competent.  Lake  Shore 
&*  M.  S.  R.  Co.  V.  Herrick,  50  Am.  &*  Eng. 
R.  Cas.  25,  49  Ohio  St.  2$,  29  A^.  E.  Rep.  1052. 

134.  Hufflciency.  —  The  evidence 

showed  that  three  servants  of  a  company,  a 
brakeman  and  two  section  foremen,  in  re- 
moving a  trunk  from  the  station  platform, 
which  was  covered  with  ice,  to  a  baggage 
car,  slid  it  on  the  ice,  and  out  of  a  straight 
line,  and  against  plaintiff,  who  was  standing 
in  plain  view  upon  the  platform.  Held, 
that  the  evidence  was  sufficient  to  prove 
culpable  negligence  on  the  part  of  the  serv- 
ants. Atchison,  T.  &*  S.  F.  R.  Co.  \.  Johns, 
34  Am.  S^  Eng.  R.  Cas.  480,  36  Kan.  769. 
14  Pac.  Rep.  237. 

In  such  case,  as  the  servants  were  then  on 
the  company's  premises,  performing  this 
duty  for  the  company,  in  the  presence  of 
other  servants,  and  as  they  had  performed 
similar  services  on  prior  occasions,  it  will  be 
presumed  that  they  were  acting  within  the 
scope  of  the  authority  given  to  them  by  the 
company.  Atchison,  T.  6-  S.  F.  R.  Co.  v. 
Johns,  34  Am.  Or*  Eng.  R.  Cas.  480,  36  /fTan. 
769,  14  Pac.  Rep.  237. 

Plaintiff  was  approaching  a  station  at 
night,  and  fell  on  the  platform  and  was  in- 
jured.    The  only  question  in  dispute  was 


STATIONS  AND  DEPOTS,  136-137. 


988 


whether  the  platform  and  approaches  were 
sutficiently  lighted.  Upon  this  point  there 
was  some  conflict  of  evidence,  but  there 
was  sufficient  evidence  to  sustain  a  finding 
against  the  defendant.  Held,  that  the  ver- 
dict should  not  be  disturbed.  GroU  v. 
Prospect  Park  <S-  C.  /.  R.  Co.,  22  A^.  K.  S. 
P.  65fi,  51  //w«  643,  4  A^.  r.  Supp.  80. 

135. burden  of  proof.— Where  a 

passenger  sues  for  an  injury  by  reason  of  a 
defective  walk  near  a  station,  he  has  the 
burden  of  proof  to  show  that  the  walk 
where  he  received  the  injury  was  con- 
structed by  the  company,  and  was  in  its 
possession  and  control  as  an  approach  to 
the  station.  Quimby  v.  Boston  &•  M.  P. 
Co.,  69  Afe.  340. 

13().  IiiHtriictioiiH— Proper. —In  an 
action  for  damages  for  ejection  of  one  not  a 
passenger  from  a  station  house,  an  instruc- 
tion that  "  to  find  for  plaintiff  it  must  ap- 
pear from  the  evidence  that  the  agent  used 
more  force  than  was  reasonably  necessary," 
and  that  by  reason  of  the  excessive  force 
plaintifT  was  injured,  and  they  were  advised 
that  it  was  their  duty  to  consider  the  resist- 
ance made  by  plaintiff,  and  the  force  used, 
and  all  the  circumstances,  and  the  con- 
duct of  the  parties— //^/((/,  unobjectionable. 
Johnson  v.  Chicago,  P.  I.  &•  P.  P.  Co.,  8 
Am.  &■*  Eng.  P.  Cas.  206,  58  Iowa  348,  12  N. 
W.  Pep.  329.— Quoted  in  Louisville,  C. 
&  L.  R.  Co.  V.  Sullivan,  16  Am.  &  Eng,  R. 
Cas.  390,  81  Ky.  624. 

An  instruction  that  a  company,  in  con- 
structing a  platform  for  the  use  of  passen- 
gers, impliedly  represents  to  the  public  that 
it  is  reasonably  safe  and  sufficient  for  such 
purpose,  and  that  it  is  its  duty  to  make  it 
so  that  it  may  be  used  safely  in  approach- 
ing and  leaving  trains  inany  way  in  which 
passengers  might  reasonably  and  with  rea- 
sonable care  be  expected  to  approach  and 
leave  trains,  is  unobjectionable.  Pennsyl- 
vania Co.  v.  Marion,  123  Ind.  415,  7  L.  P. 
A.  687,  23  A^.  E.  Pep.  973. 

And  it  is  not  error  to  instruct  the  jury 
that  although  the  passenger  may  have  pre- 
viously known  of  the  condition  of  the 
platform, and  knew  its  condition  at  the  time 
he  stepped  upon  it,  he  was  not  required 
to  abandon  the  use  of  it  and  seek  some 
other  place  of  approaching  and  leaving  the 
train,  and  that  if  he  used  care  proportioned 
to  the  known  danger  and  was  injured  by 
reason  of  such  defect,  he  would  not  be 
barred  from  recovery.     Pennsylvania  Co.  v. 


Marion,  123  /nd.  415,  7  L.  R.  A,  687,  23  N. 

E.  Pep.  973. 

An  instruction  to  a  jury  that  if  the  plat* 
form  was  defective  and  plaintiff  was  injured 
by  reason  of  said  defects  they  would  find 
for  the  plaintiff  is  not  error,  when  accom- 
panied by  the  qualification  that,  if  plain- 
tifl's  own  negligence  contributed  to  the  in- 
jury, or  if  it  was  caused  by  the  negligence 
of  a  f-'  'W-servant,  he  could  not  recover. 
Bonner  v.  Glenn,  79  Tex.  531,  x^  S.  W.  Rep. 

572. 

137. improper.— In  an  action  for 

personal  injuries,  which,  it  is  alleged,  were 
received  because  of  a  defective  platform,  an 
instruction  is  erroneous  which  assumes  and 
affirm 'xtively  assorts  that  it  was  negligence 
for  defendant  to  permit  a  hole  to  remain  in 
such  platform,  fames  v.  Missouri  Pac.  R, 
Co.,  107  Mo.  480,  18  5.  W.  Pep,  31. 

Where  the  negligence  declared  on  is  the 
failure  of  a  company  to  light  its  platform 
properly,  and  permitting  mail  bags  to  be 
thrown  upon  it, over  which  plaintiff  stumbled 
and  fell,  and  the  company  relies  on  plain- 
tiff's contributory  negligence  as  a  defense,  it 
is  error  to  instruct  the  jury  that  it  was  not 
plaintiff's  duty  to  anticipate  obstructions 
on  the  platform,  that  she  had  the  right  to 
believe  that  the  platform  was  safe,  and  that 
if  she  did  not  discover  the  mail  bags,  and 
the  company's  officers  and  servants  failed  to 
warn  her  of  them,  then  she  was  not  guilty 
of  negligence.     Sargent  v.  St.  Louis  &*  S. 

F.  P.  Co.,  58  Am.  &>  Eng.  P.  Cas.  184,  114 
Mo.  348,  21  5.  IV.  Rep.  823,  19  L.  P.  A.  460. 

Plaintiff  was  injured  by  falling  from  a 
station  platform  at  night.  He  was  at  the 
time  walking  up  the  platform,  which  was 
incumbered  with  freight  and  insufficiently 
lighted,  towards  a  train  upon  which  he  in- 
tended to  take  passage,  The  court  charged 
that  if  at  the  time  he  was  going  along,  using 
his  senses,  with  ordinary  care,  and  fell  off  by 
a  stumble,  that  was  not  a  lack  of  ordinary 
care,  because  different  people  have  different 
temperaments,  and  one  can  do  safely  what 
another  cannot ;  and  that  the  company  had 
no  right  to  demand  cxtraordmary  care  from 
any  one.  Held,  that  this  instruction  was 
erroneous,  inasmuch  as  the  jury  might  infer 
from  it  that  the  company  was  liable  for  the 
result  of  any  casually  on  the  platform,  only 
provided  the  party  suffering  it  was  at  the 
time  using  his  senses,  good  or  bad.  Pen- 
neker  v.  South  Carolina  P.  Co.,  18  Am.  &' 
Eng.  P.  Cas.  149,  20  So.  Car.  219, 


'ml 


M 


234 


STATIONS   AND   DEPOTS,  138-141. 


'i 


',   ;< 


I  *  '   *' 


138.  prnyerH properly rofiiHCJl. 

— In  an  action  for  injuries  received  upon 
alighting  from  a  train  upon  a  tiefci  live  plat- 
form, a  request  to  submit  to  the  jury  tiic 
following  interrogatory  :  "  If  plaintiff  did  not 
look  to  sec  where  she  was  step|)ing  when  she 
alighted,  wliat  reason  or  excuse  was  there 
(or  her  not  d(jing  so  ? "  does  not  comply  with 
the  requirement  of  the  statute  pnjviding 
that  the  jury,  in  case  they  render  a  general 
verdict,  may  he  recjuired  "  to  find  specially 
upon  particular  questions  of  fact,"  because 
the  determination  of  what  would  have  been 
a  reason  or  excuse  for  not  looking  neces- 
sarily involved  a  question  of  law  ;  therefore, 
such  request  was  projicrly  refused.  Ohio 
&•  M,  A'.  Co.  v.  Sliius/nrry,  ^6  //;;/.  A-  Enf,'. 
A'.  Cas.  285,  132  /«</.  533,  32  A'.  A'.  A'ep.  218. 

It  was  nut  errf)r  to  refuse  to  instruct  the 
jury  that  "  if  there  was  a  hole  in  the  platform 
at  the  point  where  plaiiuilT  alighted,  anrl  if 
in  the  exercise  of  ordinary  care  in  alighting 
she  could  and  should  have  seen  it,  and  she 
could  by  seeing  it  have  avoided  any  injiiiy, 
and  she  failed  to  sec  it,  you  must  find  for 
defendant,"  since  such  instruction  would 
cast  upon  the  passenger  the  use  of  a  degree 
of  care  in  looking  (ur  defects  which  she  was 
not  required  to  exercise.  0/iio  &»  M.  A', 
Co.  v.  Slansberry,  56  Am.  6^  Enf^-  ^-  Cas, 
285,  132  /«</.  533,  32  iV.  E.  Rt'P.  218. 

An  instruction  that  "  if  there  is  an  ap- 
parent defect  in  the  appliances  with  which 
they  (the  passengers)  come  in  contact,  or 
which  arc  in  use,  they  must  look ;  and 
unless  some  reasonable  excuse  is  given,  they 
are  guilty  of  negligence  if  they  do  not  look," 
was  properly  refused  as  an  incorrect  state- 
ment of  the  law,  placing  a  passenger  in  the 
same  relation  to  the  railroad  company  as  its 
servant  occupies.  Ohio  iS-*  M.  R.  Co.  v. 
Stansberry,  56  A»i.  &^  Eng.  A'.  Cas,  285,  132 
/nti.  533,  32  A'.  /•;.  A'e/>.  218. 

lltO.  Qu('K(ion8  of  fiict— Company's 
negligence.— In  an  action  by  a  passenger 
against  a  railroad  for  negligence  in  not 
maintaining  a  suitable  station,  resulting  in 
injury  to  the  passenger,  where  there  is  con- 
flicting evidence,  the  case  should  be  left  to 
the  jury,  under  proper  instructions.  Penn- 
sylvania A\  Co.  V.  Green,  140  U.  S.  49,  11 
Sup.  a.  Rep.  650. 

Plaintifl  was  driving  along  a  private  way 
through  defendant's  yard,  which  was 
commonly  used  by  teams  in  going  to  and 
from  an  elevator,  and  which  crossed  a  large 
number  of  tracks.     His  view  of  the  main 


track  used  by  passenger  trains  was  ob- 
structed by  freight  cars  standing  upon  the 
next  track,  which  had  been  opened  at  the 
crossing  of  the  private  way  to  form  a  pas- 
sage for  teams.  Plaintifl  was  about  to 
cross  the  main  track.  He  did  not  stop,  but 
listened  for  the  approach  of  trains.  Hear- 
ing no  signal,  he  attempted  to  cross,  but 
was  struck  by  an  engine,  which  had  just 
left  the  passenger  station,  and  was  proceed- 
ing at  a  speed  of  ten  or  twelve  miles  an 
hour.  There  was  evidence  that  there  was 
no  signal  given  of  its  approach,  lltld,  that 
the  question  of  the  negligence  of  both  the 
plaintifl  and  defendant  was  properly  sub- 
mitted to  the  jury.  Pearce  v.  Humphreys, 
34  Fed.  Kep.  282. 

140.  proximate  eftuse.— Where 

tncre  is  evidence  tending  to  show  that  the 
fall  and  injury  of  plaintiff  immediately  fol- 
lowed his  leaving  a  ticket  office  to  take  a 
train,  it  cannot  be  affirmed  on  the  evidence, 
as  matter  of  law,  that  the  absence  of  a  light 
was  not  the  proximate  cause.  Alabama  G, 
S.  A'.  Co.  V.  Arnold,  30  Am.  &"  Eng.  K,  Cas, 
546,  80  Ala.  600,  2  So.  Pep.  337.— Dis- 
tinguishing Henry  v.  St.  Louis,  K.  C.  & 
N.  R.  Co..  76  Mo.  288,  43  Am.  Rep.  762. 

Plaintiff,  a  woman  seventy-two  years  old, 
was  put  ofl  at  defendant's  depot  in  the 
night,  when  the  station  building  was  closed 
and  unlighted,and  there  was  no  one  to  give 
her  information.  After  wandering  around 
for  an  hour  or  more,  on  the  company's 
grounds,  attempting  to  find  the  way  to  the 
house  where  she  was  to  stop,  she  returned 
to  the  station,  and  in  trying  to  reach  one 
end  of  the  platform  where  she  would  be 
better  protected  from  a  cold  wind  fell  and 
was  injured.  Held,  that  the  questions 
whether  or  not  the  absence  of  light,  or  of 
any  one  to  give  information,  was  negli- 
gence, and  if  so,  whether  such  negligence 
was  the  proximate  cause  of  the  injury,  were 
for  the  jury.  Pal/en  v.  Chicago  <S»  A^.  JV. 
P,  Co.,  32  IVis.  524.  — Reviewed  in  Evans 
V,  St.  Louis,  I.  M.  &  S.  R.Co.,  11  Mo.  App. 
463. 

141.  negligence  as  to  safety  of 

platform  and  premises.— A  brakeman 
was  caught  between  moving  cars  and  the 
platform,  and  received  injuries  from  which 
he  died.  The  declaration  charged  negligence 
in  building  the  platform  too  near  the  track, 
there  being  only  ten  inches  between  the 
two.  Held,  th.it  the  question  whether  the 
platform  was  properly  constructed  was  for 


STATIONS  AND   DEPOTS,  142,  143. 


83r) 


•tie  jury.  Chicago,  R.  I.  &*  P.  R.  Co.  v. 
*.  1 1  ///.  App.  104. 

I'laintifT,  while  on  u  platform,  was  struck 
by  u  mail  pouch,  but  claimed  that  the  injury 
was  increased  by  his  heel  resting  in  a  small 
hole  II)  the  platform.  Hf/ii,  that  it  should 
have  been  left  to  the  jury  to  determine 
whether  the  hole  was  dangerous  or  not, 
regard  being  had  to  the  uses  to  which  the 
phitfniin  was  put,  and  whether  defendant 
failed  to  exercise  ili.ii  care  with  reference 
to  the  h>ile  which  a  person  of  ordinary 
prudence  would  have  exercised  under  sim- 
ilar circumstances.  Jiimes  \.  Missouri  Pac. 
R.  Co.,  107  Mo  4S0.  i3  '">'•    "'.  />>/■  31- 

PlaintifT,  who  was  injured  on  leaving  a 
station,  charged  that  it  was  not  properly 
constructed  for  passengers,  as  it  was  high, 

ith  no  railing  around  it.     //«■/(/,  that  the 

estion  whether  it  was  properly  con- 
icted,  considering  the  place,  was  for  the 
jury.  Slaffords,  Hannibal &*  St,  J,  R,  Co., 
22  Mo.  App.  333. 

I'laintifl,  while  waiting  for  a  train  on  an 
elevated  road,  at  night,  went  along  a  dimly 
lighted  passage  in  search  of  a  urinal  and 
fell  from  the  unprotected  edge  of  the  plat- 
form and  was  injured.  The  evidence 
showed  that  the  architect's  plans  called  for 
a  guard-rail  at  the  place,  but  it  had  not 
been  erected.  Held,  that  the  question  of 
the  company's  negligence  was  for  the  jury. 
Jarvis  v.  Brooklyn  Kl.  R.  Co.,  40  A'.  Y.  S. 
R.  825,  16  N.  Y.  Supp.  96;  affirmed  in 
133  A'.  Y.  623,  mem,,  30  N.  E.  Rep.  1150, 
44  A'.  Y.  S.  R.  932. 

It  is  a  question  of  fact  for  the  jury 
whether  the  construction  of  an  unusually 
high  depot  platform,  the  edge  of  which  is 
four  feet  from  the  platform  of  a  car,  is 
dangerous  or  not.  Gulf,  C.  <S-  S.  F.  R.  Co. 
V.  Fox,  ( Tex.)  33  Am.  &•  Eng.  R.  Cas.  543,  6 
.S'.  IV.  Rep.  569. 

143.    iicgligcnco   in    lighting 

premises.— In  an  action  for  injury  to  a 
passenger  owing  to  the  negligent  managing 
and  lighting  of  the  company's  station,  de- 
fendant having  rested  its  defense  on  the 
ground  that  the  accident  was  entirely  owing 
to  the  want  of  ordinary  care  on  the  part  of 
the  plaintiff  and  that  there  was  no  negli- 
gence on  the  part  of  the  company,  the  judge 
properly  left  it  to  the  jury  whether  the 
accident  occurred  from  the  negligence  of 
the  company,  or  whether  it  was  caused 
entirely  by  plaintiff's  contributory  negli- 
gence.    Mar/in  v.  Great  Northern  R.  Co., 


16  C.  B.  179,  3  C.  L.  R.  817,  I  Jur.  N.  S. 
613.— QUKSTioNKi)  IN  Cornman  v.  Eastern 
Counties  R.  Co.,  4  H.  &  N.  781.  29  L.  J. 
Ex.  94. 

Where  there  was  evidence  that  plaintiff's 
wife  was  injured  in  stepping  from  a  train 
upon  an  -jnlighted  platform,  the  court 
properly  ..hlinitted  to  the  jury  as  a  ground 
of  recovery  the  negligence  of  the  defendant 
company  in  faihng  to  provide  proper  lights 
for  its  passengers  in  leaving  the  cars  at 
night,  although  no  witness  testified  directly 
that  the  lack  of  lights  contributed  to  the 
injury,  or  that  the  accident  would  not  have 
occurred  had  the  platform  been  properly 
lighted.  Eddy  v.  Still,  3  Tex.  Civ.  App. 
346,  22  S.  ir.  Rep.  525. 

143. contrilinfury  negligence. 

— Where  the  testimony  only  shows  that 
plaintiff  after  leaving  a  ticket  office  and 
while  crossing  a  platform  was  cautioned  to 
"  Look  out  for  the  steps,"  and  that  by 
crossing  the  platform  obliquely  he  missed 
the  steps  and  thereby  sustained  injuries, 
the  question  of  proximate  contributory 
negligence  is  for  the  jury.  (Stone,  C.J. ,  dis- 
senting.) Alabama  G.  S.  R.  Co.  v.  Arnold, 
35  Am.  &-  Eng.  R.  Cas.  466,  84  Ala.  159, 
4  So.  Rep.  359,  5  Am.  St.  Rep.  354. 

Plaintiff  was  unloading  freight  from  a 
car  on  a  side  track,  when  he  heard  an  ap- 
proaching engine,  but  did  not  know  what 
track  it  was  on ;  but  out  of  caution  he  un- 
dertook to  dismount,  and  in  doing  so  set 
his  foot  on  a  link  in  the  drawhead  on  a  car 
on  the  same  track  and  near  the  one  that  he 
was  unloading,  when  a  car  of  which  he 
had  no  notice  struck  the  one  on  which  his 
foot  rested,  causing  it  to  be  crushed.  Held, 
that  he  was  not  chargeable,  as  a  matter  of 
law,  with  negligence.  Watson  v.  Wabash, 
St.  L.  6-  P.  R.  Co.,  19  Av:.  &•  Eng.  R.  Cas. 
1 14,  66  Towa  164,  23  N.  W.  Rep.  380. 

Plaintiff,  a  woman  fifty-two  years  old, 
arrived  at  a  station  for  the  purpose  of  tak- 
ing passage  before  dark,  but  the  train  did 
not  arrive  until  after  dark.  After  dark  she 
had  occasion  to  leave  the  station  to  seek 
accommodations  not  provided  by  the  com- 
pany, and  in  attempting  to  leave  the  plat- 
form she  fell  and  was  injured.  The  platform 
was  about  three  feet  high,  and  not  lighted, 
but  there  was  enough  natural  light  that  both 
the  platform  and  the  ground  could  be  in- 
distinctly seen,  and  plaintiff  believed  they 
were  nearly  on  the  same  level,  and  attempted 
to  step  off.    Held,  that  the  question  of  her 


m 


i 


!^3 

i 


i{4; 


236 


STATIONS  AND   DEPOTS,  144-146. 


I 


[ii 


contributory  negligence  was  properly  left  to 
the  jury.  Missouri  Pac.  R.  Co.  v.  Neis- 
tvanger,  39  Am.  <&-  Eng.  R.  Cas.  471,  41 
Kan.  621,  21  Pac.  Rep.  582.— Not  follow- 
ing Reed  v.  Axtell,  84  Va.  231 ;  Forsyth  v. 
Boston  &  A.  R.  Co.,  103  Mass.  S'o. 

Defendant  company  had  an  overhead 
trestle  or  passage  for  passengers,  and  also  a 
ground  passage.  Plaintiff  was  injured  while 
using  the  overhead  passage,  by  reason  of 
broken  steps  in  the  approach  thereto.  De- 
fendant had  a  right  to  prohibit  the  use  of 
the  trestle,  and  there  was  a  conflict  of  evi- 
dence as  to  whether  defendant  had  posted 
a  warning  and  erected  a  rope,  notifying  per- 
sons not  to  use  the  trestle.  Held,  that  the 
question  of  plaintiff's  negligence  was  prop- 
erly left  to  the  jury.  Baltimore  &*  0.  R. 
Co.  v.  Rose,  27  Am.  &'  Eng.  R.  Cas.  125,  65 
Aid.  485,  4  All.  Rep.  899. 

Crossing  a  railroad  track  without  looking 
to  see  if  a  train  is  coming  is  not  conclusive 
proof  of  a  want  of  care ;  and  if  it  appears 
that  there  is  a  double  track,  and  a  person 
has  just  bought  a  ticket  for  a  train  which  is 
to  pass  upon  the  further  track,  and  the 
station  agent  says  to  l)im  "The  train  is 
coming,  we  will  cross  over,"  and  he  attempts 
to  follow  the  agent,  upon  the  premises  of 
the  company,  to  take  his  place  in  the  train, 
which  meanwhile  has  arrived,  and,  in  cross- 
ing over  the  nearer  track  for  that  purpose 
is  struck  by  a  train  coming  from  the  other 
direction,  and  partially  behind  him,  which 
he  did  not  look  for  or  see  until  too  late  to 
save  himself,  it  is  proper  to  submit  to  the 
jury  the  question  whether  he  was  careless. 
IVarren  v.  Fitchhurg  R.  Co.,  8  Allen  {Mass.) 
227.— Approved  in  Caswell  7/.  Boston  &  W. 
R.  Corp.,  q8  Mass.  194.  Distinguished  in 
Forsyth  v.  Boston  &  A.  R.  Co.,  103  Mass. 
510;  Van  Ostran  v.  New  York  C.  &  H.  R.  R. 
Co..  35  Hun(N.  y.)  590;  Pittsburgh.  C.  & 
St.  L.  R.  Co.  V.  Krouse,  30  Ohio  St.  222. 

Plaintiff  had  bought  a  ticket  and  was 
staniing  near  the  edge  of  the  platform 
awaiting  the  train  which  he  intended  to 
take,  but  where  it  was  necessary  to  cross 
the  track,  and  was  struck  by  a  broken  step 
projecting  from  the  platform  on  the  side  of 
a  car  in  another  train,  which  approached 
from  behind  without  signals,  feld,  that  the 
question  whether  he  exercised  due  care  was 
properly  left  to  the  jury.  Sonier  v.  Boston 
&»  A.  R.  Co.,  141  Mass.  10,  6  N.  E.  Rep.  84. 
Whether  or  not  a  passenger  used  an  or- 
dinary degree  of  care  while  walking  in  and 


about  a  poorly  lighted  station  is  for  the  jury. 
Sargent  v.  St.  Louis  5-  S.  F.  R.  Co.,  58  Am. 
&'Eng.  R.  Cas.  184.  114  Mo.  348,  21  5.  W. 
Rep.  823,  19  L.  R.  A.  460. 

A  railroad  company  constructed  a  plat- 
form for  passengers  between  two  tracks 
about  six  feet  apart.  Plaintiff,  intending  to 
take  passage  on  a  train,  and  finding  the 
platform  crowded  with  passengers,  attempt- 
ed to  pass  near  the  edge,  and  was  struck  by 
a  rapidly  moving  train.  Held,  that  the 
question  of  his  want  of  care  was  properly 
left  to  the  jury.  Union  Pac.  R.  Co.  v.  Sue, 
25  Neb.  772,  41  N.  W.  Rep.  801. 

144.  Nominal  dainagres.— In  an  ac- 
tion for  ejecting  plaintiff  from  the  ladies' 
waiting  room,  it  appeared  that  plaintiff  was 
an  improper  character,  had  before  used  in- 
decent language  at  the  station,  had  for  a 
long  time  prior  to  the  act  complained  of 
been  lounging  about  the  station,  and  more- 
over had  arrived  at  the  station  two  hours 
in  advance  of  the  arrival  of  the  train  upon 
which  she  claimed  that  she  intended  to 
take  passage.  The  ejecting  was  accom- 
plished without  undue  force.  Held,  that 
plaintiff  was  not  entitled  to  more  than 
nominal  damages.  Beeson  v.  Chicago,  R.  I. 
&*  P.  R.  Co.,  13  Am.  &*  Eng.  R.  Cas.  45,  62 
Iowa  173,  17  A'^.   W.  Rep.  448. 

145.  Excessive  damages.  —  In  at- 
tempting to  pass  from  a  station  to  a  train, 
plaintiff,  a  female  passenger,  was  so  injured 
in  her  spine  as  to  paralyze  her  lower  limbs 
and  permanently  disable  her.  Held,  that  a 
verdict  for  $5500  would  not  be  disturbed  as 
excessive.  Taylor  v.  Pennsylvania  Co.,  50 
Fed.  Rep.  755. 

Plaintiff  attempted  to  pass  between  cars 
at  a  station  and  was  caught  and  injured  by 
their  being  moved.  His  pelvic  bone  was 
crushed ;  his  thigh  was  broken  in  two  places ; 
his  leg  was  broken,  and  he  was  confined  to 
his  bed  for  ten  weeks,  suffering  much  of  the 
time  intense  pain.  On  recovery  his  leg 
was  two  inches  shorter,  and  he  was  other- 
wise seriously  and  permanently  injured. 
Held,  that  a  verdict  for  $15,000  could  not 
be  said  to  be  excessive.  Louisville,  N.  O.  <S- 
T.  R.  Co.  V.  Thompson,  64  Miss.  584,  i  So. 
Rep.  840. 

VI.  70INT  U8E  BT  TWO  OB  MOBB 
COMPAKIXS. 

146.  Generally.— A  depot  and  track 
used  in  common  by  two  companies  fin  a 
city  where  their  lines  conneC).  tll()U^h  be- 


STATIONS  AND  DEPOTS,  147-149. 


!337 


longing  to  one  of  them  exclusively,  may  be 
considered  as  belonging  to  cacli  relatively  to 
its  own  operations  and  business.  Each 
must  protect  its  own  passengers  (rom  the 
other's  negligence,  so  long  as  passengers  are 
in  their  proper  places,  but  not  when  they 
are  out  of  place.  Central  R  &*  B.  Co.  v. 
Perry,  58  Ga.  461.  16  Am.  Ry.  Rep.  122.— 
Distinguished  in  Georgia  R.  &  B.  Co.  v. 
Friddell.  79  Ga.  489. 

A  terminal  station  was  jointly  occupied 
by  two  companies,  under  an  agreement 
which  secured  to  both  companies  an  equal 
interest  in  the  use  of  the  joint  passenger 
station.  One  of  them  entered  into  an 
agreement  with  a  third  company  by  which 
it  was  proposed  to  introduce  its  passenger 
traffic  into  the  joint  station,  and  with  that 
view  a  junction  of  the  two  lines  nf  railway 
was  proceeded  with,  fn  an  application  for 
interdict,  at  the  instance  of  the  company 
co-proprietor  of  the  joint  station,  against 
this  agreement  being  carried  into  effect — 
held,  that  this  introduction  into  the  joint 
station  of  the  traffic  of  a  third  railway,  al- 
though for  a  short  distance  it  passed  along 
the  line  of  one  of  the  co-proprietors  of  that 
station,  was  a  colorable  attempt  to  give  to 
the  third  the  use  and  benefit  of  the  joint 
station,  which  a  co-proprietor  had  a  right 
to  resist.  North  British  R.  Co.  v.  Edinl/urgh 
&-  G.  R.  Co.,  16  Sc.  Sess.  Cas.  {2d  Series) 
250,  2  Ry.  <S-  C.  T.  Cas.  21. 

147.  Under  Mas.sacliu8etts  stat- 
utes.—Mass.  statute  of  1871,  ch.  3 ',3,  re- 
quiring certain  railroad  corporations  to 
unite  in  a  passenger  station  in  a  certain  city, 
at  one  of  two  specified  places,  to  be  de- 
termined by  commissioners  appointed  by 
the  supreme  court ;  to  extend  their  tracks 
In  that  city  to  the  union  station,  and  after 
the  extension  to  discontinue  portions  of 
their  present  locations,  is  constitutional  and 
valid,  being  a  reasonable  exercise  of  the 
right  reserved  to  the  legislature  to  amend, 
alter  or  repeal  the  charters  of  the  corpora- 
tions. Afaj.^r,  etc. ,  of  Worcester  v.  Norwich 
&*  IV.  R.  Co.,  109  Mass.  103. — Following 
Fitchburg  R.  Co.  v.  Grand  Junction  R.  4 
D.  Co.,  4  Allen  198;  Com.  v.  Eastern  R. 
Co.,  103  Mass.  254. 

So  far  as  the  above  statute  relates  to  the 
establishment  of  a  union  passenger  station 
in  said  city,  the  leg'slature  intended  to  deal 
exclusively  with  the  railroad  corporations 
named  in  section  1,  being  the  parties  in  inter- 
est on  which  it  had  conferred  the  right  of 


eminent  domain  in  respect  to  the  railroads 
to  be  united  in  the  station,  and  which  were 
bound  to  exercise  that  right  in  performing 
the  award  of  the  commissioners  to  deter- 
mine its  location  ;  and  with  the  city  within 
which  the  tight  was  to  be  exercised;  and 
made  no  pn  vision,  and  was  bound  to  make 
none,  for  notice  to  other  parties  whose  in- 
terests were  subordinate  and  derivative. 
Mayor,  etc.,  of  Worcester  v.  Norwich  &>  W. 
R.  Co.,  109  Mass.  103. 

Under  the  above  statute,  the  board  has 
the  power,  in  authorizing  one  railroad  cor- 
poration to  take  a  portion  of  the  location  of 
another,  to  do  so  on  condition  that  the 
latter  shall  have  the  right  to  use  a  track  of 
the  former,  subject  to  reasonable  regulations 
to  be  established  by  the  board.  Providence 
&*  W.  R.  Co.  V.  Norwich  6-  W.  R.  Co.,  22 
Am.  &*  Eng.  R.  Cas.  493, 138  Mass.  277. 

148.  Under  English  Railways 
Clauses  Act.— It  is  doubtful  whether  the 
power  reserved  to  the  public  by  the  Railways 
Clauses  Act,  1845,  §  92,  to  use  the  "railway  " 
with  engines  and  carnages  upon  payment  of 
tolls,  includes  the  power  of  using  stations. 
Midland  R.  Co.  v.  Ambergate,  N.&*  B.  &» 
E.  J.  R,  Co.,  10  Hare  359. 

140.  Platforms  —  Personal  inju- 
ries. —  Where  one  company  has  the  right 
to  use  a  station  platform  belonging  to  an- 
other company,  it  is  its  duty  to  see  that 
the  platform  is  safe  for  passengers,  without 
any  regard  to  the  arrangement  between  the 
two  companies.  Seymour  v.  Chicago,  B.  6- 
Q.  R.  Co.,  3  Biss.  ( U.  S.)  43. 

Where  a  company  discharges  a  passenger 
in  the  night-time  at  the  crossing  of  another 
railroad,  and  the  stations  of  the  two  com- 
panies are  connected  by  an  unlighted  plat- 
form, so  constructed  as  to  lead  the  pas- 
senger to  believe  that  it  is  designed  for  the 
use  of  travelers  in  passing  from  one  station 
to  the  other,  and  the  passenger,  in  going  with 
due  care  from  one  station  to  the  other,  falls 
through  an  unguarded  hole  in  the  platform 
and  IS  injured,  the  carrier  is  liable,  although 
the  negligence  of  the  other  company  con- 
curred in  causing  the  injury.  Louisville,  N. 
A.  &*  C.  R.  Co.  V.  Lucas,  1 19  /nd,  583,  21  A^. 
E.  Rep.  968.  Lucas  v.  Pennsylvania  Co., 
120  Ind.  205.  21  N.  E.  Rep.  972.— Quoted 
IN  Pennsylvania  Co.  v.  Marion,  123  Ind. 
415  —  Wabash.  St.  L.  6-  P,  R.  Co.  v.  Wolff, 
13  ///.  App.  437. 

A  joint  judgment  cannot  be  sustained 
against  different  companies  unless  there  is 


il 


t 

i 

1 

'i. 

238 


STATUS-STATUTES. 


some  concert  of  action  between  all  the 
companies,  or  concurrent  neglect  of  a  com- 
mon duty  resting  on  all.  One  company 
owned  a  track  and  platform,  but  ran  no 
trains.  A  second  company  had  the  right  to 
run  trains  on  the  road  and  to  use  the  plat- 
form, and  in  doing  so  piled  freight  on  the 
platform  so  as  to  leave  a  very  narrow  space 
between  it  and  the  track.  A  third  company, 
which  had  the  right  to  use  the  track  but 
not  the  platform,  in  running  a  train  over  the 
track,  struck  and  killed  a  person  who  was 
on  the  platform  for  the  purpose  of  remov- 
ing freight.  /MJ.  that  the  companies  were 
not  jointly  liable.  Chicago  &•  W,  I.  R.  Co. 
V.  Rolvink,  31  ///.  App.  596. 

STATUS. 
Of  corporations,  how  far  deemed  persons,  see 
Corporations,  1. 

—  new  company  on  consolidation,  see  Con- 

solidation, 40. 

corporation  after  reorganization,  see 

Reorganization,  12. 

—  the  Confederate  government,  see  War,  1. 


STATUTE  OF  FRAUDS. 
Application  of,  to  guaranties,  see  Guaranty, 

2. 
Effect  of,  on  acquirement  of  easement,  see 

Easements,  O. 
Requirements  of,  at  respects  agreements  to 

convey,  see  Vendor  and  Purchaser,  2. 
contract  for  fencing,  see  Fences. 

40. 
to  contracts,  see  Contracts,  13- 

20. 
to  be  specifically  enforced,  see 

Specific  Performance,  5,  O. 
locate  station,  see  Stations 

and  Depots.  37. 

—  sales,  see  Sales.  3. 

Subscriptions,  how  far  subject  to,  see  Sub- 
scriptions to  Stock,  28. 


STATUTE  OF  LIMITATIONS. 

See  Limitations  of  Actions. 


STATUTES. 
Absolute  liability  under,  for  injuries  caused 

by  fires,  see  Fires,  33. 
Allowing  action  for  causing  death  in  foreign 

jurisdiction,   see   Death   by    Wronofui, 

Act,  100-124. 
—  consequential  damases  for  taking  of  land, 

see  £hiniimi'  Domain,  007»  008. 


Allowing  filing  of  bonds  in  condemnation 
proceedings,  constitutionality  of,  see 
Eminent  Domain,  406. 

As  to  assessment  of  land  damages  by  com- 
missioners, see  Eminent  Domain,  404. 

blocking  of  frogs,  see  Employ£s,  Inju- 
ries TO,  G4. 

condemnation  of  land,  interpretation 

of,  see  Eminent  Domain,  40-57. 

contributory  negligence  in  actions  for 

injuries  caused  by  fires,  see  Fires,  103. 

crossing  of  railways,  constitutionality 

and    construction    of,    see    Crossing  of 
Railroads.  7-15. 

damages  for  killing  stock,  interpreta* 

tion  of,  see  Animals,  Injuries  to,  12- 
28. 

distribution   of  damages  for  causing 

death,    see    Death   by  Wrongful  Act, 
55-71. 

duty  of  company  where  street  crosses 

railroad,   see   Crossing  of  Streets  and 
Highways,  5G-02. 

mechanics'  liens,  see  Liens,  8-10. 

municipal  aid  to  railroads,  constitu- 
tionality of,  see  Municipal  and  Local 
Aid,  24-53. 

payment  into  court  of  land  damages, 

1  constitutionality  of,  see  Eminent  Domain. 
308. 

receiver's  compensation,  construction 

of,  see  Receivers,  157. 

removal  of  causes,  constitutionality  of, 

see  Removal  of  Causes,  1-3. 

sales  of  railroads,  interpretation  of, 

see  Sales  of  Railroads.  G. 

spark  arresters,  see  Fires,  42. 

state  aid,  validity  of,  see  State  Aid,  1. 

transportation  of  diseased  cattle,  valid- 
ity of,  see  Carriage  ok  Live  Stock,  lOO. 

Authorizing  underground  railways,  see  Un- 
derground Railways,  1. 

Change  of  remedy  by,  as  ground  of  abate- 
ment,  see  Abatement,  lO. 

Changing  grade  of  streets,  validity  and  effect 
of,  see  Streets  and  Highways,  152. 

—  route  under  prdvisions  of,  see  Location  of 

Route,  18. 
Compelling  issuance  of  mileage  tickets,  see 

Tickets  and  Fares,  00. 
Constitutionality  and  interpretation  of  fence 

laws,  see  Fences,  1-11. 

—  of  liquor  laws,  see  Intoxicating  Liquors, 

1. 

statutes  allowing  interest  as  damages, 

see  Death  by  Wroncfui,  Act,  437. 

imposing  punishment   for   causing 

death,  see  Death  by  Wrongful  Act, 
441. 

Construing  two  or  more  together,  see  Emi- 
nent Domain,  48. 


STATUTES. 


S89 


Creating  corpontions,  judicial  notice  of,  see 
Evidence,  00. 

—  railway  commissioners,  constitutionality 

of,  see  Railway  Commissioners,  1,  2. 
Curative  acts,  see  Taxation,  16. 
Directing  deposit  of  land  damages,  validity 

of.  see  Eminent  Domain,  301. 
Duty  to  build  and  maintain  fences  under,  see 

Fences,  15-36. 
fences  in  the  absence  of,  see  Fences, 

13. 
give  signals  at  crossings  under,  see 

Crossings,  Injuries  to  Persons,  etc.,  at, 

00-163. 
Forfeitures   of  franchise   declared  by,  see 

Charters,  83. 
Giving  right  to  stop  over,  see  Tickets  and 

Fares,  51. 
Granting  right  of  way  over  the  public  lands, 

construction  of,  see  Public  Lands,  38, 

30. 
How  to  be  pleaded,  see  Pleading,  4. 
Illegality  of  engagements  to  influence  pas- 
sage of,  see  Contracts,  66,  67. 
Imposing  conditions  on  power  to  issue  rail- 
way aid  bonds,  see  Municipal  and  Local 

Aid,  282,  283. 
subscriptions  in  aid  of  railways,  see 

Municipal  and  Local  Aid,  225. 

—  penalties   for  failure  to  forward   goods 

promptly,  see  Carriage  of  Merchandise, 
40. 
overcharges,  see  Charges,  52-58. 

—  restrictions  on  foreign  corporations,  see 

Foreign  Corporations,  4,  5. 

Incorporation  under,  see  Incorporation,  etc., 
2-5. 

Interstate  commerce  act,  see  Interstate 
Commerce,  11-184. 

Invalidity  of  bonds  cured  by,  see  Bonds,  26. 

Judicial  notice  of  public,  see  Evidence,  112. 

Liability  for  injuries  to  infant  employes 
under,  see  Employes,  Injuries  to,  467. 

spread  of  fire  under,  see  Fires,  80. 

Limiting  amount  recoverable  for  loss  of  cat- 
tle, see  Carriage  of  Live  Stock,  bl, 

in  actions   for  causing  death,  see 

Death  by  Wrongful  Act,  363-372. 

Making  ticket  good  for  six  years,  see  Tickets 
and  Fares,  05. 

Necessity  of,  to  authorize  mortgages  of  cor- 
porate property,  see  Mortgages,  1-4. 

sale  of  railway,  see   Sales  of 

Railroads,  3. 

Negotiability  of  bills  of  lading  as  affected  by, 
see  Bills  of  Lading,  100. 

Of  another  state  as  evidence,  see  Evidence, 
246. 

—  Canada  as  to  connecting  lines,  see  Car- 

KiAGB  or  Mkrchandisk,  550. 


Of  Canada,  expropriation  of  land  under,  see 
Eminent  Domain.  1210-1281. 

—  England,  compulsory  purchase  of  lands 
under,  see  Eminent  Domain,  1086- 
1200. 

—  limitations  as  to  actions  for  causing  death, 

see  Death  by  Wrongful  Act,100-104. 

constitutionality  of,  see  Limitations  of 

Actions,  1,  2. 

—  states,   judicial    notice    of,    by    federal 

courts,  see  Evidence,  1  lO. 

—  the  several  states  regulating  grade  cross- 

ings, see  Crossing  of  Streets  and  High- 
ways, 86-113. 

Power  to  issue  bonds  under,  see  Bonds,  4. 

Practical  location  of  route  by,  see  Location 
of  Route,  15. 

Presumption  as  to  existence  of  similar  laws 
in  other  states,  see  Animals,  Injuries  to, 
470. 

Providing  for  construction  of  new  road  for 
highway  used  by  railway,  see  Streets 
and  Highways,  105. 

examination   of  employes  for   color 

blindness,  see  Employes,  3. 

payments  in  lieu  of  taxation,  construc- 
tion of,  !iee  Taxation,  50. 

survival  of  cause  of  action  for  causing 

death,  see  Death  by  Wrongful  Act,  84. 

—  liens   for   laborers,    construction   of,  see 

Liens,  43. 

—  remedy  for  causing  death,  constitution- 

ality and  operation  of,  see  Death  by 
Wrongful  Act,  6-30. 

—  schemes  for  collection  of  taxes,  see  Taxa- 

tion, 287. 
Provisions  of,  cannot  be  modified  by  custom, 

see  Customs,  8. 
relating  to  abandonment  of  stations, 

see  Stations  and  Depots,  51-53. 
to  secure  safety  in  streets,  see  Streets 

and  Highways,  206. 
Punitive  damages  not  recoverable  in  absence 

of,  sec  Death  by  Wrongful  Act,  421. 
Ratification  of  ultra  vires  acts  by,  see  Ultra 

Vires,  4* 
Reading  of,  to  jury  by  counsel,  see  Animals, 

Injuries  to,  525. 
Recitals  in,  weight  of,  as  evidence,  see  Evi- 
dence, 270. 
Reduction  of  rate  of  interest  by,  see  Interest, 

17. 
Regulating  charges,  see  Charges,  4-10. 

—  commerce,  what  are,  see  Commerce,  3- 

13. 

—  compensation  for  carrying  the  mail,  see 

Carriage  of  Mails,  O,  10. 

—  condemnation  of  land  must  provide  for 

compensation,  see  Eminent  Domain, 
374-378. 


1 


240 


STATUTES. 


Regulating  construction  of  railways,  see  Con- 
struction OK  Railways,  2. 

—  crossing   of  highways,  see  Crossing  of 

Streets  and  Highways,  2-8,  10. 

—  fares,  sec  Tickets  and  Fares,  115. 

—  liability  for  injuries  caused  by  fire,  see 

Fires,  1-18. 

of  companies  lOr  injury  to  servants  by 

negligence  of  fellow-servants,  see   Fel- 

LUW-SEKVANTS,   163-105. 

—  rate  of  speed,  see  Streets  and  Highways, 

317. 

—  speed,  constitutionality  of,  see  Crossings, 

Injuries  to  Persons,  etc.,  at,  170. 

—  street    railway,    see    Street    Railways, 

255-258. 

—  the  issuance,  taking  up  and  redemption 

of  tickets,  see  Tickets  and  Fakks,  13. 

laying   out  of  streets  and  highways 

across  railroads,  see  Crossing  of  Streets 
and  Highways,  43-40. 

—  tolls,  see  Bridges,  etc.,  04. 

Relative  to  branch  roads,  validity  of,  see 
Branch  and  Lateral  Roads,  2,  4. 

company's  duty  towards  employes,  in- 
terpretation of,  see  Emi-loy^s,  Injuries 
to,  1. 

condemnation  of  land,  constitutionality 

of,  see  Eminent  Domain,  22-45. 

right  to  use  streets,  see  Streets 

and  Highways,  115-110. 

consolidation,    interpretation  of,    see 

Consolidation,  1-8. 

construction  of  bridges  over  navigable 

water,  see  Bridges,  etc.,  61,  62. 

costs  and  fees  in  condemnation  cases, 

see  Eminent  Domain,  768-785. 

damages,     constitutionality     of,     see 

Damages,  6. 

drains,  see  Drains,  1-4. 

foreclosure  of  railway  mortgages,  con- 
struction of,  see  Mortgages,  150. 

issuing  of  stock,  construction  of,  see 

Stook,  6. 

livestock,  constitutionality  of,  see  Ani- 
mals, Injuries  tu,  1-28. 

municipal  aid  to  railways,  intespreta- 

tion  of,  see  Municipal  and  Local  aid, 
64-71. 

obstructions  and    encroachments   in 

streets  and  highways,  construction  of, 
see  Streets  and  Highways,  404. 

process,  see  Process,  1-3. 

right  of  one  road  to  connect  with  an- 
other, see  Connecting  Lines,  2. 

service  of  process,  see  Process,  14. 

stock  yards  see  Stock  Yards,  1. 

taxation,  constitutionality  of,  s-^e  Taxa- 
tion, 17-52. 

the  building  and  maintenance  of  cattle- 
guards,  see  Cattle-guards,  1,  2. 


Relative  to  the  construction  of  bridges,  see 
Bridges,  etc.,  l-O. 

duty  to  construct  culverts,  see  Cul- 
verts, 1. 

right  of  appeal,  construction  of,  see 

Eminent  Domain,  870. 

trial  by  jury  in  assessment  of  land 

damages,  see  Eminent  Domain,  518, 
510. 

union  depot  companies,  construction 

and  eff*'*t  of,  see  Union  Depot  Companies, 
2. 

Remedy  by,  when  exclusive,  see  Eminent  Do- 
main, 1056,  1060. 

—  given  by,  when  exclusive,  see  Eminent 

Domain,  084. 

Reorganization  under,  see  Reorganization, 
2. 

Repeals  of  stock  laws,  see  Animals,  Inju- 
ries TO,  27,  28. 

Requiring  bell  to  be  rung  in  cities,  see 
Streets  and  Highways,  332. 

—  fences,  see  Animals,  Injuries  to,  87. 

—  notice  to  landowner  in  condemnation  pro- 

ceedings, see  Eminent  Domain,  281- 
300. 

—  signals  for  protection  of  employes,  see 

Employes,  Injuries  to,  160. 

—  stop  before  crossing  another  railway,  see 

Crossing  of  Railroads,  82,  83. 

—  the  construction  of  farm  crossings,  see 

Farm  Crossings,  3. 
erection   of  signs  at   crossings,    see 

Crossings,  Injuries  to  Persons,  etc.,  at, 

61,  62. 
repairing  and  rebuilding  of  fences,  see 

Fences,  85. 

—  watchmen  at  crossings,  see  Crossings,  In- 

juries to  Persons,  etc.,  at,  86. 
Restraining  power  to  limit  liability,  see  Lim- 
itation of  Liability,  25,  26. 
Sale   of  goods   under,    to   enforce  lien   for 

charges,  see  Carriage  of  Merchandise, 

390. 
Validating  irregular  railway  aid  bonds,  effect 

of,    see     Municipal    and    Local    Aid, 

338. 
Waiver  of  forfeiture  by,  see  Dissolution,  etc., 

10. 
What  amounts  to  discrimination  under,  see 

Discrimination,  2-7. 

See  also  Contract  Labor  Law  ;  Rapid  Tran- 
sit Acts. 

X.  EHAOTMIHT 241 

II.  GONailTUTIOirAUTT.     TAUDITT...  243 
in.  IHTSKFBITATIOH  AKD  imOT....  262 

1.  Jn  General. 263 

2.  Particular  Statutes .  267 

IV.  BEPEAL,  AXD  ITS  SrFSGT 27 1 


' 


■( 


STATUTES,  1-3. 


241 


Z.  EHAOTMSNT. 

1.  In  general.  —  111.  Constitution  of 
1848,  art.  3,  §  23,  provided  that  "every  bill 
shall  be  read  on  three  different  days  in  each 
house,  and  every  bill  having  passed  both 
houses  shall  be  signed  by  the  speakers  of 
their  respective  houses."  A  bill  designated 
by  number,  and  entitled  "An  act  to  amend 
an  act  entitled  '  An  act  to  incornorate  the 
Illinois  Grand  Trunk  railway," "  duly 
passed  the  lower  house,  but  in  its  passage 
through  the  senate,  and  in  the  messages  be- 
tween the  two  houses  notifying  each  other 
of  its  passage,  the  word  "  Illinois  "  was 
dropped  from  its  title,  but  it  was  always 
designated  by  its  proper  number.  It  was 
duly  signed  by  the  presiding  officer  of  each 
house.  Held,  that  it  was  constitutionally 
passed.  Walnut  v.  Wade,  3  Am.  &*  Eng. 
R.  Cas.  36,  103  I/.  S.  683. 

The  word  "house,"  as  used  in  Mich. 
Const,  of  1835,  art.  I2,  §  2,  means  the  mem- 
bers present  doing  business,  there  being  a 
quorum,  and  not  a  majority  of  all  the  mem- 
bers elected  ;  and  an  act  of  incorporation 
passed  by  two  thirds  of  tht  members  pres- 
ent, there  being  a  quorum,  is  constitutional. 
Southworth  v.  Palmyra  &*/.  R.  Co.,  2  Mich. 
287. 

The  validity  of  an  enrolled  statute,  pro- 
viding for  the  issue  of  bonds  of  the  state  in 
aid  of  a  railroad,  authenticated  in  the  man- 
ner pointed  out  by  law,  by  the  certificate  of 
the  presiding  officers  of  the  two  houses  of 
assembly,  that  it  passed  over  the  governor's 
veto  by  the  constitutional  majority,  cannot 
be  impeached  by  the  journals  uf  tlic  houses 
showing  a  departure  from  the  forms  pre- 
scribed by  the  Constitution  in  the  recon- 
sideration of  the  bill.  Pacific  R.  Co.  v. 
Governor,  23  Mo.  353. 

The  creation  of  a  board  of  engineers  to 
superintend  certain  work  in  changing  rail- 
road tracks  on  streets  of  a  city  is  not  in 
violation  of  N.  Y.  Const.,  art.  10,  §  2,  relat- 
ing to  the  appointment  of  certain  officers ; 
neither  is  it  in  violation  of  art.  i,  §9,  which 
requires  the  assent  of  two  thirds  of  the 
members  elected  to  each  branch  of  the  leg- 
islature to  every  bill  appropriating  public 
moneys  or  property  for  local  or  private  pur- 
poses. A  provision  that  the  work  shall  be 
paid  for  by  local  taxation  is  not  appropriat- 
ing money,  within  the  meaning  of  the  Con- 
stitution. People  ex  rel.  v.  Havemeyer,  3 
Huh  (N.  Y.)  97,  16  Abb.  Pr.  N.  S.  219,4  T. 
&•  C.  365.  47  How.  Pr.  494. 
7  D.  R.  D.— 16    . 


The  public  moneys  referred  to  in  the 
above  section  are  those  belonging  to  the 
state,  and  not  those  raised  by  local  taxation 
for  an  improvement.  People  ex  rel.  v.  Have 
meyer,  3  Hun  (N.  V.)  97,  16  Abb.  Pr.  N.  5. 
219,  4  T.&'C.  365,  47  How.  Pr.  494. 

2.  Approval  by  governor.— Where  a 
law  is  signed  by  the  speakers  of  both  houses, 
and  approved  by  the  governor,  it  will  be 
presumed  to  have  been  passed  in  conform- 
ity with  all  the  requirements  of  the  Consti- 
tution, and  that  it  is  valid,  until  the  pre- 
sumption is  overcome  by  legitimate  proof, 
clear  and  convincing  in  its  character.  Lar- 
rison  v.  Peoria,  A.  &•  D.  R.  Co.,  77  ///.  11. 

The  charter  of  a  railroad  company  pro- 
vided that  it  should  be  null  and  void  if  the 
road  was  not  commenced  and  finished  with- 
in certain  fixed  dates.  When  the  time  had 
well  run  the  legislature  passed  a  subsequent 
act.  which  recited  that  it  was  necessary  to 
extend  the  time,  but  the  section  relating  to 
the  extension  as  printed  actually  shortened 
the  time.  Held,  that,  as  the  section  sealed 
and  approved  by  the  governor  was  different 
from  the  act  as  it  passed  the  legislature,  it 
was  null  and  void  ;  but  this  would  not  af- 
fect other  portions  of  the  act,  which  were 
distinct  and  severable,  and  regularly  passed. 
Berry  v.  Baltimore  &*  D.  P.  R.  Co.,  41  Md. 
446,  7  Am,  Ry.  Rep.  399. 

By  the  Railway  Act,  §  151,  the  by-laws  of 
every  railroad  company  regulating  the  tolls 
to  be  taken  on  such  road,  in  the  special  act 
respecting  which  a  provision  has  been  in« 
serted  that  such  railroad  should  be  subject 
to  the  provisions  of  any  general  act  relat- 
ing to  railroads,  shall  be  subject  to  the  ap- 
proval of  the  governor  in  council,  and  no 
by-law  of  any  railroad  or  railway  in  this 
province  by  which  any  tolls  are  to  be  im- 
posed or  altered  *  •  ♦  shall  have  any 
force  or  effect  until  the  same  has  been  ap- 
proved and  sanctioned  by  the  governor  in 
council.  Scott  V.  Midland  R.  Co.,  33  U.  C. 
Q.  B.  580. 

3.  Entries  in  legislative  Joiiriials. 
—An  original  bill  to  authorize  county  sub- 
scriptions to  railroads  provided  that  the 
county  court  should  submit  the  question  of 
subscription  to  a  popular  vote  upon  the 
joint  application  of  the  president  and  di- 
rectors of  the  company  and  100  voters. 
The  manuscript  journal  of  the  house  showed 
that  the  bill  was  amended  by  substituting 
the  word  "or  ""  for  "and,"'  so  as  to  author- 
ize a  popular  vote  upon  the  application  of 


n 


I  VI 


248 


STATUTES,  4,  6. 


Hi 


M 


either  the  company  or  of  loo  voters.  The 
entry  in  the  printed  journal  as  to  this 
amendment  was  unintelligible,  and  neither 
journal  said  anything  more  of  the  amend- 
ment. The  bill  was  passed  and  transmitted 
to  the  senate,  and  there  passed  and  was  sent 
to  the  governor.  The  enrolled  bill  as  signed 
by  the  governor  had  the  word  "and"  in 
place  of  "or."  In  a  contention  that  the  bill 
signed  by  the  governor  and  enrolled  was 
not  the  same  bill  passed  by  the  house  and 
senate— /i^W.  that  as  the  Constitution  did 
not  require  amendments  of  bills  to  be  en- 
tered upon  the  journals,  the  court  will 
presume  that  the  house  receded  from  its 
amendment,  and  hold  that  the  enrolled 
bill  was  the  one  passed.  CAicoi  County  v. 
Davits,  40  Ari.  200. 

The  journals  of  the  senate  showed  that 
senate  bill  No.  453,  "  An  act  to  incorporate 
the  Peoria,  Atlanta  &  Danville  railroad 
company,"  was  introduced,  read  a  first  and 
second  time,  and  referred  to  a  committee, 
and  that  the  committee  to  whom  was  re- 
ferred senate  bill  No,  453,  "An  act  to  in- 
corporate the  Peoria,  Atlanta  &  Decatur 
railroad  company,"  reported  back  the 
same  with  amendments,  and  that  the  same 
was  engrossed  for  a  third  reading  and  final- 
ly passed  upon  the  call  of  the  ayes  and 
noes.  He/il,  that  the  proof  failed  to  raise 
even  a  doubt  of  the  passage  of  the  bill,  and 
that  these  entries  failed  to  show  that  there 
were  two  bills  pending  of  the  same  number, 
and  that  the  number  showed  its  identity. 
Larrison  v.  Peoria,  A.  &•  D.  R.  Co.,  77  ///. 
II.— Overruled  in  Binz  v.  Weber,  81  111. 
288. 

Where  an  act  amending  a  charter  has 
been  duly  authenticated  and  published,  the 
presumption  is  that  all  the  constitutional  so- 
lemnities and  prerequisites  necessary  to  its 
validity  have  been  complied  with  ;  but  when 
it  is  clearly  made  to  appear  that  the  bill,  or  a 
section  of  it,  has  never  in  fact  received  the 
legislative  assent,  a  court  is  bound  to  look, 
not  only  behind  the  printed  statute  book, 
but  beyond  the  forms  of  authentication  of 
the  bill  as  recorded.  Berry  v.  Baltimore  &* 
D.  P.  R.  Co.,  41  Md.  446. 

Such  statute  having  the  proper  forms  of 
authentication  cannot  be  impeached  or 
questioned  upon  merely  parol  evidence ;  but 
the  journals  of  the  two  houses,  in  connec- 
tion with  other  proper  evidence,  may  be  ex- 
amined to  aid  in  arriving  at  a  correct  con- 
clusion as  to  what  was  the  actio.,  nf  the 


legislature.  Berry  v.  Baltimore  &*  D.  P. 
R.  Co.,  41  Md.  446. 

4.  Publication  and  circulation.— 

The  publication  and  circulation  by  the  sec- 
retary of  state  of  the  railroad  law  of  1852, 
under  a  resolution  passed  by  the  general 
assembly,  in  advance  of  the  publication  of 
the  revised  statutes  of  that  year,  constituted 
a  publication  and  circulation  of  such  law 
"  by  authority,"  within  the  meaning  of  the 
Constitution.  Bravard  v.  Cincinnati,  If. 
&*  I.  R.  Co.,  115  Ind.  I,  14  West.  Rep,  817, 
17  A^.  E.Rep.  183. 

The  Md.  constitutional  requirement  as  to 
publication  of  statutes  and  the  time  for 
which  such  publication  is  to  be  made  is 
mandatory  and  not  merely  directory,  and 
the  two  months  of  publication  mean  calen- 
dar and  not  lunar  months.  Baltimore  &■* 
D.  P.  R.  Co.  v.  Pumphrey,  74  Md.  86,  21  Atl. 
Rep.  559. 

5.  When  a  Htatute  takes  effect.— 
An  act  providing  for  loaning  the  credit  of 
the  state  to  railroads  was  passed  by  the 
general  assembly  July  21,  1868,  and  two 
days  thereafter  each  house,  by  a  concurrent 
resolution,  adjourned  to  meet  on  the  third 
Tuesday  in  November,  1868,  and  did  meet 
on  that  day,  and  continued  in  session  until 
April  10,  1869,  when  both  houses  adjourned 
sine  die.  Held:  (i)  that,  there  being  no  spe- 
cial provision  in  the  act  as  to  when  it 
should  take  effect,  it  did  not  become  opera- 
tive, or  take  effect  as  a  law,  for  any  purpose, 
until  "ninety  d.ays  from  the  expiration  of 
the  session  at  which  it  was  passed  "  (Const. 
1868,  art.  5,  §  22);  (2)  that  the  session  that 
passed  the  act  expired  on  April  10,  1869, 
when  both  houses  adjourned  sine  die ;  and 
that  the  act  did  not  take  effect  until  ninety 
(lays  from  that  date.  State  v.  Little  Rock, 
M.  R.  &*  T.  R.  Co.,  31  Ark.  701.— Quot- 
ing Wheeler  v.  Chubbuck,  16  III.  361 ;  St. 
Joseph  Sl  D.  C.  R.  Co.  v.  Buchanan  County 
Court,  39  Mo.  485 ;  South  Ottawa  v.  Per- 
kins, 4  Cent.  L.  J.  442.  Reviewing  Iro- 
quois County  Sup'rs  v.  Keady,  34  111.  293 ; 
St.  Louis  V.  Alexander,  23  Mo.  483. 

A  railroad  cha'ter  provided  that  it  should 
be  in  force  from  and  iifter  the  filing  of  a  cer- 
tain resolution  therein  described  with  the 
secretary  of  state.  The  Constitution  of  the 
state  provided  that  "  general  "  laws  should 
only  be  in  force  after  their  publication. 
Held:  (i)  that  the  word  "general  "  as  used 
in  the  Constitution  was  synonymous  with 
the  word  public ;  (2)  that  the  charter  in  its 


STATUTES,  6,  7. 


243 


leading  features  was  a  private  statute,  though 
certain  features  which  related  to  municipal 
aid  to  the  road,  and  other  matters,  might 
be  in  the  nature  of  a  public  statute.  Bur- 
liop  V.  Milwaukee,  21  Wii.  257. 

II.  COHBTITUTIONAIITY.  VAIIDITY. 
6.  Legislative  control  over  rail- 
roads. —  Railroad  corporations  are  quad 
public  corporations  dedicated  to  the  public 
use ;  and  the  grant  and  acceptance  of  such 
charters  creates  a  quasi  public  trust,  and 
clothes  the  public  with  an  interest  in  the  use 
of  the  roads,  which  can  be  controlled  by  the 
public  to  the  extent  of  the  interest  granted 
therein.  McCoy  v.  Cincinnati,  I.,  St.  L.  &* 
C.  R.  Co.,  13  Fed.  Rep.  3.— FOLLOWING 
Munn  V.  Illinois,  94  U.  S.  126. 

The  legislature  has  power  to  determine  in 
what  manner  a  railroad  company,  whose 
charter  is  subject  to  the  duties,  liabilities 
and  restrictions  of  Mass.  Rev.  St.  ch.  44, 
shall  exercise  its  franchise,  and  to  make 
changes  in  the  level,  grade  and  connections 
thereof,  and  to  direct  the  construction  of  a 
new  connecting  track,  if  this  is  necessary  in 
order  to  preserve  the  continuity  of  the  road  ; 
and  to  provide  in  what  manner  and  under 
whose  supervision  the  work  shall  be  done, 
and  how  paid  for.  Fitchburg  R.  &*  D.  Co. 
V.  Grand  Junction  R.  Co.,  4  Alien  (Mass.) 
198. 

The  legislature  has  authority  in  respect 
to  quasi  public  corporations,  such  as  rail- 
roads, and  may,  by  general  law,  regulate, 
direct  and  define  their  privileges.  Spader 
v.  New  York  El.  R.  Co.,  3  Abb.  N.  Cas.  (N. 
Y.)  467.  McGowan  v.  Wilmitigton  &•  W. 
R.  Co.,  27  Am.  <S-  Eng.  R.  Cas.  64,  95  A^. 
Car.  417. 

Where  a  company  has  acquired  a  right  of 
way,  the  manner  of  operating  the  road  is 
within  legislative  control,  and  a  statute  au- 
thorizing the  use  of  steam  as  a  motive 
power  for  operating  the  road  on  a  certain 
street  is  not  in  violation  of  that  provision 
of  the  United  States  Constitution  that  no 
state  can  deprive  any  person  of  life,  liberty 
or  property  without  due  process  of  law,  or 
that  provision  of  the  state  Constitution 
which  provides  substantially  the  same.  Peo- 
ple V.  Lc-.ig  h  land  R.  Co.,  60  How.  Pr,  (N. 
Y.)  395,  9  Abb.  N.  Cas.  181. 

The  New  York  statute  authorizing  rail- 
road companies  to  acquire  land  provides 
that  the  company  "  shall  be  entitled  to  enter 
upon,  take  possession  of  and  use  the  said 


land  for  the  purposes  of  its  incorporation 
during  the  continuance  of  its  corporate  ex- 
istence"; and  the  title  to  the  land  being 
thus  limited  to  its  use  for  the  purposes  of 
the  railroad  enterprise,  it  is  necessarily  sub- 
ject to  the  exercise  of  all  those  powers  re- 
served to  the  legislature  to  which  the  fran- 
chises of  the  corporation  are  subject.  Al' 
bany  Northern  R.  Co.  v.  Bro^vnell,  24  A^.  Y. 
345.— Disapproving  Miller  v.  New  York 
&  E.  R.  Co.,  21  Barb.  513.  Following 
Moha«rk  &  H.  R.  Co.  v.  Archer,  6  Paige 
(N.  Y.)  87. 

The  legislature  has  power  to  compel  rail- 
road corporations  to  discharge  the  obliga- 
tions which  they  owe  to  the  public,  by  rea- 
sonable statutory  regulations,  because  of 
their  quasi  public  nature,  and  because  they 
exercise  and  enjoy  rights  and  franchises 
granted  by  the  public.  McGowan  v.  Wil- 
mington <S-  W.  R.  Co.,  27  Am.  Gr*  Eng.  R. 
Cas.  64,  95  A^.  Car.  417. 

And  it  may  determine  what  constitutes 
abuses,  and  what  laws  will  correct  them,  and 
what  remedies  may  be  necessary  to  enforce 
such  laws.  Houston  &*  T.  C.  R.  Co.  v. 
Harry,  18  Am.  6-  Eng.  R.  Cas.  502,  63  Tex. 
256. 

There  is  a  marked  difference  between 
railroad  corporations  and  purely  private 
corporations.  The  former  may  be  called 
quasi  public  corporations;  and  the  legis- 
lature has  over  their  employment  of  their 
property,  devoted  to  a  use  in  which  the 
public  has  an  interest,  a  control  which  it 
does  not  have  over  the  employment  of  the 
property  of  a  purely  private  corporation. 
The  legislature  can  generally  exercise  no 
control  which  is  forbidden  by  the  charter 
of  a  purely  private  corporation.  Laurel 
Fork  6m  S.  H.  R.  Co.  v.  IVest  Va.  Tramp. 
Co.,  25  W.  Va.  324. 

Railroad  corporations  which  devote  their 
property  to  a  use  in  which  the  public  has 
a  direct  interest,  in  effect  grant  to  the  pub- 
lic an  interest  in  such  use,  and  must  to  the 
extent  of  that  interest  submit  to  be  con- 
trolled by  the  public  for  the  common  good, 
as  long  as  they  maintain  the  use ;  but  they 
may  withdraw  the  grant  by  discontinuing 
the  use.  Laurel  Fork  &■»  S.  H.  R.  Co.  v. 
Wist  Va.  Transp.  Co.,  25  W.  Va.  324. 

7.  Delegation  of  legislative  power. 
—After  obtaining  the  approval  of  the  rail- 
road commissioners,  a  company  abandoned 
a  station ;  but  the  legislature  subsequently 
passed  an  act,  upon  the  petition  oi  tlie  in- 


244 


STATUTES,  8. 


'i| 


habitants  of  the  place,  providing  that  the 
company  should  stop  its  trains  at  the  sta- 
tion if  the  inhabitants  should,  within  six 
months,  erect  a  station  house  and  convey 
th  ame  to  tlie  company.  Held,  \.\\a\.  the 
statute  was  not  void  as  an  attempt  to  dele- 
gate legislative  power  to  individuals.  State 
V.  New  Haven  &-  N.  Co.,  43  Com.  351. 

Conn.  Act  of  1889,  ch.  220,  relating  to 
grade  crossings,  provides  that  the  directors 
of  every  company  shall  apply  for  the  re- 
moval of  at  least  one  grade  crossing  each 
year  for  every  sixty  miles  of  road;  ♦  ♦  ♦ 
and  if  the  directors  of  any  company  shall 
fail  so  to  do  the  commissioners  shall  order 
such  crossing  or  crossings  removed,  //e/d, 
that  the  statute  is  not  unconstitutional  be- 
cause it  authorizes  the  railroad  commis- 
sioners to  determine  their  own  jurisdiction. 
New  York  &*  N.  E.  li.  Co.'s  Appeal,  62  Conn. 
527,  26  Atl.  Kcp.  122. 

A  statute  conferring  on  a  commissioner 
authority  to  regulate  the  charges  of  rai'- 
roads  for  transportation  of  passengers  and 
freight  is  not  a  delegation  of  legislative 
power  forbidden  by  the  Constitution  of 
Florida.  Mc  Whorter  v.  Pensacola  &•  ^l.  A'. 
Co.,  37  Am.  6-  Eng.  A'.  Cas.  566,  24  F/a. 
417,  12  Am.  St.  Rep.  220,  2  L.  JR.  A.  504,  5 
So.  Rep.  129. 

Kentucky  Act  of  March,  1850,  incorpo- 
rating defendant  company,  and  authorizing 
certain  cities  and  counties  to  hold  stock  in 
the  company,  is  not  in  violation  of  any  pro- 
vision of  the  state  Constitution  in  force  at 
the  date  of  its  passage.  Slack  v.  Maysville 
&*  L.  R.  Co.,  13  B.  Man.  (A>.)  i. 

Neither  does  the  act  of  Feb.,  1851,  amend- 
ing defendant's  charter,  violate  that  pro- 
vision of  the  state  Constitution  adopted  in 
1850  which  restricts  the  power  of  the  legis- 
lature to  authorize  debts  to  be  contracted 
on  behalf  of  the  state,  in  so  far  as  said 
amendment  authorizes  the  creation  of  a 
debt  to  pay  for  municipal  stock.  Slack  v. 
Maysville  6-  L.  R.  Co.,  13  B.  A/on.  {Ky.)  i. 

The  provision  of  N.  Y.  Act  of  1884,  ch. 
439.  §  3.  that  "at  a  point  where  a  street 

*  •  *  or  traveled  way  is  crossed  at  the 
same  level  by  a  railroad  *  ♦  *  the  su- 
preme court  or  county  court  may,  upon 
application  ♦  *  ♦  order  *  *  *  that 
gates  shall  be  erected  across  such  street 

•  *  ♦  and  that  a  person  be  stationed  to 
open  and  close  such  gates  when  an  engine 
or  train  passes"  is  constitutional;  it  is  not 
in  violation  of  the  constitutional  provision 


vesting  legislative  powers  exclusively  in  the 
legislature  (N.  Y.  Const,  art.  3,  §  i),  as  it 
does  not  give  to  the  court  legislative 
powers,  but  makes  the  erection  and  oper- 
ation of  the  gates  provided  for  dependent 
upon  their  necessity,  to  be  ascertained  and 
determined  in  the  manner  provided ;  and 
when  such  an  order  is  made,  said  act  is 
effectual  to  enforce  compliance.  People  v. 
Long  Island  R.  Co.,  134  N.  Y.  506.  31  N.  E. 
Rep.  873.  47  A^.  Y.  S.  R.  648 ;  affirming  58 
Hun  412,  34  A^.  Y.S.  A'.  715.  12  A^.  Y.  Supp. 
41.— Distinguishing  Barto  v.  Himrod,  8 
N.  Y.  483. 

Although  the  statute  does  not  in  express 
terms  declare  that  it  shall  be  the  duty  of  a 
railroad  company  to  obey  an  order  so  made 
by  the  court,  this  is  to  be  implied.  People 
v.  Long  Island  R.  Co.,  134  A^.  Y.  506,  31  N. 
E.  Rep.  873,  47  A^  Y.  S.  R.  648 ;  affirming 
58  Hun  412,  34  A'.  Y.  S.  R.  715.  12  N.  Y. 
Supp.  41. 

8.  Uuiforiiiity  of  operation.— Under 
Cal.  Constitution,  a  law  of  a  general  nature 
must  have  a  uniform  operation ;  therefore 
an  act  exempting  particular  cases  from  the 
operation  of  a  general  law  is  unconstitu- 
tional. In  an  action  to  enjoin  the  removal 
of  a  street-car  track,  plaintiffs  claimed 
under  the  act  of  April  i,  1874,  §  17,  author- 
izing them  to  construct  a  street  railway  on 
a  certain  avenue,  and  defendant  under  a 
grant  of  right  of  way  by  the  board  of  super- 
visors. Held,  that  the  section  referred  to 
was  unconstitutional,  being  an  attempt  to 
exempt  the  corporation  from  the  operation 
of  the  general  law  of  March  29,  1870,  and 
therefore  destructive  of  its  uniform  opera- 
tion. Omnibus  R.  Co.  v.  Baldwin,  57  Cal. 
160.— Distinguishing  California  State  Tel. 
Co.  V.  Alta  Tel.  Co.,  22  Cal.  398,  Follow- 
ing San  Francisco  v.  Spring  Valley  Water 
Works,  48  Cal.  493 ;  Waterloo  Turnpike 
Road  Co.  V.  Cole,  51  Cal.  381. 

Iowa  Act  of  March  26,  i860,  chartering  a 
railroad  between  designated  points,  as  the 
beneficiary  of  a  land  grant  from  the  general 
government,  is  not  in  conflict  with  the  state 
Constitution,  art.  3,  §  30,  providing  that  the 
legislature  shall  not  pass  local  or  special 
laws  in  certain  enumerated  cases,  "and  in 
all  other  cases  where  a  general  law  can  be 
made  applicable."  Clinton  v.  Cedar  Rapids 
&*  M.  R.  R.  Co.,  24  Iowa  455.— Distin- 
guished IN  Portland  &  W.  V.  R.  Co.  v. 
Portland,  27  Am.  &  Eng.  R.  Cas.  353,  14 
Oreg.  188. 


STATUTES,  9-11. 


245 


Iowa  Code.  §  1307,  does  not  contravene 
the  fourteenth  amendment  to  the  Constitu- 
tion of  the  United  States  because  it  sub- 
jects railroad  companies  to  liabilities  and 
penalties  to  which  other  persons  and  cor- 
porations are  not  subjected.  Bucklew  v. 
Central  Iowa  R.  Co.,  64  Iowa  603,  21  iV.  W. 
Rep.  103.  — Following  McAunich  v.  Mis- 
sissippi &  M.  R.  Co.,  20  Iowa  338.  — Fol- 
lowed IN  Central  Trust  Co.  v.  Sloan,  23 
Am.  &  Eng.  R.  Cas.  398,  65  Iowa  655;  Ray- 
burn  V.  Central  Iowa  R.  Co.,  74  Iowa  637,  38 
N.  W.  Rep.  520. 

Mich.  Act  No.  202  of  1889,  which  fixes 
a  maximum  charge  for  the  transportation 
of  passengers  on  railroads  upon  the  basis 
of  their  gross  earnings  per  mile,  and  which 
in  so  doing  distinguishes  between  railroads 
located  in  the  Upper  Peninsula  and  those 
in  the  Lower  Peninsula,  is  constitutional. 
Wellman  v.  Chicago  &•  G.  T.  R  Co.,  45 
Am.  6-  Eng.  R  Cas.  249,  83  Mich.  592,  47 
N.  IV.  Rep.  489.— Following  Dow  v.  Bei- 
(lelman,  125  U.  S.  680. 

O.  Partial  or  discriiiiinatiiifir  leg- 
islatioii. — A  statute  requiring  a  particular 
railroad  company  to  keep  a  watchman  at  a 
certain  turnpike  crossing  is  not  invalid  on 
the  ground  that  it  is  partial  or  discriminat- 
ing legislation  Kentucky  C.  R.  Co,  v.  Com., 
4g  Am.  &*  Eng.  R.  Cas.  312,  f  '  Ky.  64,  17 
S.  IV.  Rep.  196. 

The  rights  of  every  individual  must 
stand  or  fall  by  the  same  general  law  that 
governs  every  member  of  the  body  politic 
in  the  land,  under  similar  circumstances, 
and  therefore  a  partial  law  which  proposes 
to  affect  or  destroy  the  rights  of  particular 
persons,  or  a  particular  class  of  p>ersons,  is 
not  the  law  of  the  land.  Atchison  6-  N.  R. 
Co.  v.  Baty,  6  Ne6.  37,  i  j  Am.  Ry.  Rep.  63. 

10.  Due  process  of  law.— N.  Y.  Laws 
of  1886,  ch.  271,  providing  for  the  sale  of 
the  rights  of  a  certain  company  to  run  its 
cars  on  the  streets  of  New  York  city,  the 
proceeds  of  such  sale  to  be  paid  to  the 
city,  is  in  violation  of  the  constitutional 
prohibition  against  changing  the  ownership 
of  property  without  due  process  of  law,  it 
being  an  attempt  to  transfer  such  rights  by 
mere  force  of  the  statute,  without  the  con- 
sent or  knowledge  of  the  lawful  owners. 
People  V.  O'Brien,  36  Am.  <S-  Eng.  R.  Cas. 
78,  I II  AT.  V.i,i&N.E.  Rep.  692. 19  A'.  V. 
S.  R.  173 ;  reversing  10  N.  V.  S.  R.  596,  45 
Hun  519.— Referring  to  New  York  &  O. 
M.  R.  Co.  V.  Van  Horn,  57  N.  Y.  473. 


11.  Vested  rights.— It  is  not  within 
the  competency  of  even  the  legislative 
power  to  deprive  any  person  of  a  vested 
right  by  means  of  a  declaratory  act,  yet 
where  no  right  has  been  already  secured 
under  the  former  act,  the  legislature  may 
declare  its  meaning  by  a  subsequent  law, 
and  this  will  be  held  to  be  the  meaning  of 
the  first  law  from  the  beginning,  for  no 
wrong  is  thereby  inflicted,  since  no  right  has 
become  vested.  Washington,  A.  &*  G.  R. 
Co.  V.  Martin,  7  D.  C.  \  20. 

In  1863  congress  passed  an  act  touching 
the  admission  of  a  Virginia  company  into 
the  District  of  Columbia,  but  the  Virginia 
company  never  accepted  the  act.  Held, 
that  it  never  acquired  any  rights  under  it. 
and  therefore  sustained  no  injury  from  the 
passage  of  the  declaratory  act  of  1866. 
Washington,  4  &•  G.  R.  Co.  v  Martin,  7 
D.  C.  120. 

The  mayor  and  aldermen  of  a  city  filed  a 
petition  under  Mass.  Act  of  1890,  ch.  428, 
for  the  abolition  of  certain  grade  cross- 
ings. Commissioners  were  appointed,  and, 
after  the  filing  of  their  report  and  a  motion 
to  confirm  the  same,  and  before  the  court 
had  made  any  final  decree,  the  statute  of 
1892,  ch.  311,  was  passed,  which  provided 
that  no  change  should  be  made  in  the  grade 
of  the  public  ways  in  the  city,  where  the 
same  are  now  crossed  by  one  or  more  rail- 
roads at  grade,  without  the  consent  of  the 
city  council  expressed  by  vote  duly  re- 
corded, and  that  before  a  final  decree  a 
copy  of  such  vote  certified  by  the  city  clerk 
shall  be  filed  in  the  case.  No  vote  was 
passed  by  the  city  council  and  no  certificate 
filed  in  the  case.  The  judge  ruled  that 
the  statute  of  1892  was  not  within  the 
power  of  the  legislature,  and  that  the  con- 
sent of  the  city  council  was  not  necessary 
to  a  final  decree  in  the  case,  and  made  a 
final  decree  confirming  the  report.  Held, 
that  the  proceeding  could  not  be  considered 
as  a  suit  for  the  determination  of  private 
vested  rights  of  which  the  parties  could  not 
be  deprived  except  by  a  taking  for  a  public 
use  and  the  payment  of  reasonable  compen- 
sation ;  that  it  was  merely  a  quasi  judicial 
proceeding  for  enforcing  the  laws  regulat- 
ing a  subject  within  the  control  of  the  leg- 
islature, and  that  the  statute  was  valid.  In 
re  Mayor,  etc.,  of  Northampton,  158  Mass. 
299.  33  A'.  E.  Rep.  568.— Quoting  New 
London  Northern  R.  Co.  v.  Boston  &  A.  R. 
Co.,  102  Mass.  386. 


246 


STATUTES,  12,  13. 


U 


■:f' 


Congress  has  the  constitutional  power  to 
charter  railroads  and  to  grant  them  rights 
of  way  over  public  lands,  and  to  exempt  such 
easements  from  taxation ;  and  after  it  has 
granted  such  charters,  rights  acquired  there- 
under cannot  be  affected  by  legislation. 
Northern  Pac.  K.  Co.  v.  Garland,  xj  Am. 
&*  Enj;.  R.  Cas.  364,  $  Mont.  146,  3  Pac. 

Rep.  134- 

12.  What  laws  impair  the  obliga- 
tion of  contracts.— Where  a  corpora- 
tion liiis  made  contracts  valid  at  the  time 
they  were  made,  the  state  cannot  un- 
make them  or  impose  other  or  different 
terms  on  the  corporation,  to  its  injury  and 
for  the  benefit  of  other  contracting  parties. 
Coast- Line  A'.  Co.  v.  Mayor,  etc.,  of  Savan- 
nah, 30  Fed.  /iV/i.  646, 

Where  a  state  authorizes  a  company  to 
mortgage  lands  which  have  been  granted  it 
by  the  general  government,  and  the  mort- 
gage has  been  foreclosed,  the  state  cannot 
abridge  the  rights  of  purchasers  of  the 
road  by  subsequent  legislation.  Vicksburg, 
S.  &-  P.  A\  Co.  V.  Sledge,  41  La.  Ann.  896, 
6  So.  /x'e/>.  725. 

An  act  of  the  legislature,  the  effect  of 
which  is  to  make  a  loan  of  money  become 
due  before  the  time  fixed  in  the  contract, 
cannot  be  enforced.  Randolph  v.  Middle- 
ton,  26  A'.  /.  Eg.  543. 

A  railroad  acquired  lands  not  necessary 
for  the  use  of  the  road,  and  afterwards  mort- 
gaged the  same.  Afterwards  a  law  was 
passed  appointing  a  commissioner  to  sell 
such  lands  as  were  not  necessary  for  tlie  use 
of  the  road,  and  providing  that  upon  the 
mortgagees  releasing  the  same,  their  mort- 
gages should  be  ratified  as  to  all  other  prop- 
erty of  the  railroad.  The  commissioner 
reported  the  lands  to  be  sold,  and  the  mort- 
gagees released  the  same.  Ne/d,  that  this 
was  an  executed  grant  on  the  part  of  the 
state,  making  a  subsequent  law  to  reopen 
the  matter  for  mistakes  of  the  commis- 
sioner unconstitutional,  as  impairing  the 
obligation  of  a  contract.  Brew  v.  AVrt/ 
York  Sr-  E.  R.  Co.,ii*  Pa.  St.  46. 

Vermont  Act  of  1857,  p.  23,  No.  16,  so  far 
as  it  provides  for  the  appointment  of  trus- 
tees annually,  in  case  a  railroad  is  in  the 
hands  of  trustees  under  a  mortgage,  im- 
pairs the  obligations  contained  in  a  railroad 
mortgage  in  which  the  trusts  are  specified, 
and  the  manner  of  perpetuating  the  same, 
and  in  this  respect  it  is  repugnant  to  that 
provision  of  the  Constitution  of  the  United 


States  which  prohibits  a  state  legislature 
from  passing  any  law  to  impair  the  obliga- 
tion of  a  contract.  Fletcher  v.  Rutland  &* 
B.  R.  Co..  39  yt.  633. 

1.1.  AVliat  laws  do  not  impair  the 
obligation.— A  state  cannot,  by  any  act 
of  its  own,  by  any  expression  of  the  legis- 
lative will,  or  by  any  agency  whatever, 
lessen,  change,  impair  or  destroy  the  legal 
obligation  of  contracts  into  which  it  has 
entered ;  but,  in  proposing  an  adjustment 
of  its  liabilities,  and  of  claims  and  de- 
mands against  it,  the  general  assembly  has 
undoubted  power  to  declare  that  only  par- 
ticular liabilities,  or  special  claims  and  de- 
mands, shall  be  adjusted ;  its  powers  in  this 
respect  being  the  same  as  those  of  an  indi- 
vidual debtor  to  provide  for  the  adjust- 
ment, security,  or  payment  of  particular 
debts,  omitting  others  oi  equal  or  greater 
obligation.  State  ex  rel.  v.  Cobb,  7  Am.  &• 
Eng.  R,  Cas.  147,  64  Ala.  127. 

Where  a  railroad  charter  provides  that  it 
may  be  altered,  amended  or  repealed  at  any 
time,  a  subsequent  statute  requiring  the 
company  to  build  and  maintain  certain 
highway  crossings  is  not  unconstitutional 
as  impairing  the  obligation  of  the  contract 
between  the  state  and  the  company.  Bos- 
ton &"  M.  R.  Co.  V.  Vorh  County  Com'rs,  32 
Am.  &>  Eng.  R.  Cas.  271,  79  Me.  386,  4  A'^. 
Eng.  AV/>.  657,  \oAtl.Rep.  113.— Reviewed 
IN  Chicago  &  N.  W.  R.  Co.  v.  Chicago.  140 
III.  309- 

The  legislature  of  Missouri  had  the  con- 
stitutional right  to  pass  the  act  of  Feb. 
16,  1865,  entitled  "An  act  to  provide  for 
the  completion  of  the  North  Missouri  rail- 
road and  its  west  branch,"  and  to  release 
the  first  mortgage  lien  and  pledge  of  the 
income  of  the  road  reserved  to  the  state  by 
the  act  of  Dec.  23,  1852.  Answer  to  Ques- 
tions by  Governor,  37  Mo.  139. 

New  York  Laws  of  1886,  ch.  143,  provid- 
ing for  the  taxation  of  stock  corporations 
for  the  privilege  of  organizing,  is  not,  in  its 
application  to  corporations  framed  under 
earlier  laws  providing  that  purchasers  at 
mortgage  foreclosure  sales  can  become  in- 
corporated bodies,  a  violation  of  the  con- 
stitutional inhibition  against  laws  impairing 
the  obligation  of  contracts.  People  ex  rel, 
v.  Cook,  36  Am.  &»  Eng.  R.  Cas.  256,  no  A^. 
Y.  443,  18  N.  E.  Rep.  113;  affirming  47 
Hun  467.— Following  Memphis  &  L.  R. 
R.  Co.  V.  Railroad  Com'rs,  112  U.  S.  609. 

A  limitation  upon  the  right  of  non-resi- 


STATUTES,  14-16. 


247 


lature 
ibliga- 


dents  to  bring  actions  against  foreign  cor- 
porations does  not  impair  the  obligation  of 
contracts.  Central  A'.  &*  B.  Co.  v.  Georgia 
C.  &*  1.  Co.,  yi  So.  Car.  319,  11  S.  E.  Rep. 
192.  638. 

In  1838  the  state  of  Tennessee  estab- 
lislied  a  bank  in  its  own  name,  and  pledged 
its  faith  and  credit  to  give  indemnity  for  all 
losses  arising  from  any  deficiency  in  the 
funds  appropriated  as  capital.    At  that  time 
tlie  Constitution  of  the  state  provided  that 
suits  might  be  brought  against  the  state  "  in 
such   manner  and  in  such  courts  as  the 
legislature  may  by  law  direct."    In  1855  a 
statute  was  passed  providing  that  actions 
might  be  instituted  against  the  state  the 
same  as  against  individuals,  but  no  power 
was  given  the  courts  to  enforce  a  judgment ; 
but  in  1 86 J  this  law  was  repealed.     Subse- 
quently a  railroad  company  was  made  a 
party  to  a  proceeding  to  wind  up  the  bank, 
and  asked  for  a  decree,  tinder  the  indem- 
nity clause  of  the  act  creating  the  bank, 
against  the  state  for  the  amount  of  a  certain 
debt  due  from  tiic  bank  to  the  company. 
Held,  that  the   statute   repealing  the  one 
authorizing  the  state  to  be  sued  was  not 
void  as  impairing  the  obligation  of  a  con- 
tract.    (Swayne  and    Strong.  JJ.,  dissent- 
ing.)   Memphis  &*  C.  R.   Co.  v.   Tennessee, 
101   U.  S.  337.— Followed  in  Baltzer  v. 
State,  104  N.  Car.  265,  10  S.  E.  Rep.  153; 
South  &  N.  Ala.  R.  Co.  v.  Alabama,  loi  U. 
S.  832. 

14.  N«>  siK'li  coiiNtitiitionnl  pro- 
Iiiliitioii  in  Caimdn.— In  Canada,  where 
no  constitutional  proliibition  exists  against 
the  passage  of  laws  impairing  the  obligation 
of  contracts,  the  legislature  may  by  statute 
compel  bondholders  of  a  railroad  to  accept 
an  arrangement  or  compromise  made  when 
the  corporation  is  in  financial  embarrass- 
ment, for  the  benefit  of  all  the  bondholders, 
and  accepted  by  a  majority  of  them.  Such 
statutes  are  on  a  footing  with  bankrupt  acts, 
and  cannot  be  said  to  deprive  any  person 
of  his  property  without  doe  process  of  law. 
Canada  Southern  R.  Co.  v.  Gebhard,  14  Am. 
&^  Eng.  R.  Cas.  581,  109  U.  S.  527,  3  Sup. 
Ct.  Rep.  363.— Distinguished  in  Hollister 
7/. Stewart,  iii  N.  Y. 644,  19  N.  E.  Rep.  782. 
Quoted  in  Gates  v.  Boston  &  N.  Y.  A.  L. 
R.  Co.,  24  Am.  &  Eng.  R.  Cas.  143,  53  Conn. 
333- 

Iff.  Statutes  impairing  the  obliga- 
tion of  corporate  tVancliises.—  Where 
a  law    passed   previous  to  the   formation 


of  a  corporation,  or  which  it  afterwards 
accepts,  exacts  certain  duties  of  it,  a  subse- 
quent statute  imposing  a  penalty,  where 
none  existed  before,  for  a  failure  to  perform 
•uch  duties,  does  not  impair  any  corporate 
'ight,  or  otherwise  violate  the  Ala.  Consti- 
tution. Mobile  &*  M.  R.  Co.  v.  Stttner, 
61  Ala.  S59' 

The  construction  and  maintenance  of 
highways  and  bridges  is  a  public  burden 
which  the  general  assembly  has  a  right  to 
apportion  as  it  deems  best.  So  where  a 
company  has  constructed  its  road  in  a  city, 
and  built  certain  bridges  to  the  acceptance 
of  the  city  authorities,  a  subsequent  act  of 
the  legislature  ordering  the  company  to 
widen  the  bridges  as  public  convenience 
may  require  is  not  unconstitutional  as  im- 
pairing the  obligation  of  the  contract  be- 
tween the  state  and  the  company.  English 
v.  New  Haven  &*  N.  Co.,  32  Conn.  240.— 
Approved  in  Burritt  v.  New  Haven,  42 
Conn.  174. 

10.  Retrospective  laws.— The  legal 
tender  act  is  constitutional  as  to  debts  con- 
tracted before  its  passage.  Knox  v.  Lee, 
12  Pl^all.  {(/.  S.)  457.— Followed  in  Nor- 
wich &  VV.  R.  Co.  V.  Johnson,  15  Wall.  (U. 
S.)  195.  Reviewed  in  Baltimore  &  O.  R. 
Co.  7>.  State,  36  Md.  519. 

Under  Colorado  Constitution  retrospect- 
ive laws  are  prohibited.  Therefore  where 
a  statute  gives  a  right  of  action  against  a 
company  through  whose  misconduct  or 
negligence  death  has  been  caused,  and  suit 
has  been  brought  and  judgment  recovered, 
the  repeal  of  the  statute  while  the  case  is 
pending  in  the  supreme  court  on  appeal 
cannot  relate  back  so  as  to  destroy  the 
right  of  action  or  prevent  the  supreme 
court  from  acting  in  the  case.  Denver,  S. 
P.  &*  P.  R.  Co.  V.  Woodward,  4  Colo.  162. 
See  also  Denver,  S.  P.  &-  P.  R.  Co.  v.  Wood- 
ward, 4  Colo.  I. 

Where  a  railroad  charter  reserves  to  the 
legislature  the  right  to  alter  or  amend  the 
same,  a  subsequent  general  statute  relating 
to  railroads,  and  imposing  additional  bur- 
dens upon  companies  in  the  way  of  fencing 
their  tracks,  is  not  unconstitutional.  Suy- 
dam  v.  Moore,  8  Bart.  (N.  K.)  358, 

Pa.  Act  of  April  11,  1862,  giving  the 
supreme  court  original  jurisdiction  of  a 
court  of  chancery  "  in  all  cases  of  mort- 
gages given  by  corporations,"  is  constitu- 
tional :  and  it  is  no  objection  that  the  law 
was  passed  after  the  date  of  the  mortgage 


348 


STATUTES,  17,  18. 


i! 


M 


|i 


n 


in    litigation.    McCurdy's  Appeal,  65  Pa, 
St.  290. 

A  loyisiative  act,  passed  after  a  railwayr 
company  has  compensated  tlie  owner  of 
land  for  the  right  to  cross  it,  which  requires 
the  company  to  construct  crossings  within 
his  inclosures,  cannot  he  enforced.  It  would 
be  otherwise  if  the  right  of  way  were  ob- 
tained after  the  passage  of  such  a  law.  In 
the  latter  event  the  right  of  way  would  he 
presumed  to  have  been  acquired  with  refer- 
ence to  the  law.  Gulf,  C.  6^  S.  /•'.  A'.  Co. 
V.  /\'('.v/.f  ••//,  35  Aph.  tiV*  Eh^.  a.  Cas.  286,  70 
TV.r.  298,75.  ir.  Rep.  718. 

17.  Lucul  ur  H|>ucinl  laws.  —  Kan. 
Act  of  1871,  ch.  124,  relating  to  defendant 
company  and  the  southern  branch  of  the 
Union  Pacific  railway  company,  and  which 
purports  to  convey  and  extend  to  the  entire 
roads  of  these  companies  all  the  rights  they 
then  possessed  as  to  a  part  of  their  roads, 
and  which  attempts  to  give  a  right  of  way 
over  all  lands  as  fully  as  that  enjoyed 
over  other  lands  under  other  acts  of  the 
legislature,  is  in  violation  of  Kan.  Constitu- 
tion, art.  12,  §  1,  providing  that  the  legisla- 
ture shall  pass  no  special  act  conferring  cor- 
porate powers.  Roberts  v.  Missouri,  K.  &* 
T.  R.  Co. ,  43  Am.  &*  Ettg.  R.  Cas.  532,  43 
Klin.  102,  22  /'ac.  Rep.  1006. 

Mo.  Act  "  to  provide  for  the  assessment 
and  collection  of  taxes  on  bridges  owned  by 
joint-stock  companies,  and  property  and 
franchises  owned  by  telegraph  and  express 
companies,"  is  not  a  special  law  within  the 
meaning  of  the  constitutional  inhibition 
against  the  passage  of  local  or  special  laws. 
State  ex  rel.  v.  St.  Louis,  K.  C.  &•  N.  R.  Co., 
79  Mo.  420;  affirming  9  Mo.  App.  532. 

New  jersey  Act  of  May  3,  1880,  providing 
that  any  company  whose  road  at  a  seaside 
resort  is  not  more  than  four  miles  in  length 
shall  not  be  subject  to  the  provisions  of 
the  act  of  Feb.  12,  1874,  which  provides  for 
the  appointment  of  a  receiver  for  a  road  that 
fails  to  run  its  trains  for  ten  days,  is  in  vio- 
lation of  the  stale  Constitution,  art.  4,  §  7, 
providing  that  the  legislature  shall  not  pass 
any  private,  special  or  local  law  granting  to 
any  corporation,  association  or  individual 
any  exclusive  privilege,  immunity  or  fran- 
chise. In  re  Delaware  Bay  &*  C.  .M.  R.  Co., 
(A'.  /.)  1 1  Atl.  Rip.  261  ;  adhered  to  on  re- 
hearing in  1 1  Atl.  Rep.  737. 

A  bill  may  be  passed  jjiving  a  private  rail- 
road corporation  the  right  to  use  a  new  or 
different  motive  power,  provided  the  right 


be  not  exclusive.  In  rt  Ntw  York  El.  R, 
Co.,  70  A'.  Y.  327,  3  Abb.  N.  Cas,  401  ;  af- 
firming 7  Hun  239,  /««/!.— Followed  in 
People  V  Brooklyn,  F  &  C.  I  R.  Co.,  9  Am. 
&  Eng.  R.  Cas  454,  89  N.  Y.  75,  In  re 
Third  Ave.  R.  Co.,  43  Am.  &  Eng.  R.  Cas. 
222,  12!  N.  Y.  536.  24  N.  E.  Rep.  951,  31  N. 
Y.  S.  R.  693. 

The  provision  of  N.  Y.  Act  of  1885,  ch. 
554,  authorizing  the  construction  of  an 
"  illustrative  section  "  of  an  elevated  railroad 
on  some  street  in  the  city  of  New  York,  is 
in  conflict  with  the  state  Constitution,  art.  3, 
§  1^,  prohibiting  any  local  or  private  bill 
granting  any  corporation,  association  or  in- 
dividual the  right  to  lay  down  railroad 
tracks;  and  it  is  also  unconstitutional  in 
that  it  makes  no  provision  for  compensa- 
tion  to  abutting  owners,  or  owners  of  the 
fee  of  the  street.  People  ex  rel.  v.  I.oew,  102 
A'.  Y.  471,  2  A'.  Y.  S.  R.  52;  affirming  y^ 
Hun  490. 

In  1867  defendant  company  was  chartered 
to  construct  a  bridge.  By  chapter  392  of 
1885,  uiidera  pretense  of  extending  the  time 
for  the  completion  of  the  bridge,  the  com- 
pany was  authorized  to  construct  a  railway. 
Held,  that  the  legislature  had  the  power  to 
waive  a  forfeiture  for  not  completing  the 
bridge  as  originally  required;  but  the  at- 
tempt to  authorize  it  to  construct  a  railroad 
was  in  violation  of  that  provision  of  the 
state  Constitution  which  prohibits  the  legis- 
lature from  granting,  by  private  or  local 
bills,  the  right  to  lay  down  railroad  tracks, 
or  to  provide  for  building  bridges  and  char- 
tering companies  for  such  purpose.  In  re 
New  York  <S»  L.  I.  Bridge  Co.,  54  Htm  400, 
27  A'.  Y.  S.  R  503,  7  A'.  Y.  Supp.  445  ;  affirm- 
ing 21  A'.  Y.  S.  R.  858.  s  N.  Y.  Supp.  77. 

Pa.  Act  of  May  8, 1876,  repealing  the  lim- 
itations contained  in  charters  of  passenger 
railway  companies  in  cities  of  the  first  class, 
restricting  them  to  the  use  of  horse  power, 
relates  to  a  subject  proper  for  municipal 
classification,  and  does  not  transgress  the 
prohibition  of  article  3,  §  7,  of  the  Constitu- 
tion, as  a  local  or  special  law  amending  or 
extending  the  charter  of  a  corporation. 
Reeves  v.  Philadelphia  Traction  Co.,  \%2 Pa. 
St.  153,  25  Atl.  Rep.  516;  reversing  i  Pa. 
Dist.  506. —Distinguishing  Weinman  v. 
Wilkinsburg  &  E.  L,  Pass.  R.  Co.,  118  Pa. 
St.  192.  Quoting  Paving,  etc.,  of  Wyo- 
ming St.,  137  Pa.  St,  494. 

18.  The  police  power,  generally.— 
All  general  laws  and  police  regulations  af« 


STATUTES,  10,  20. 


249 


fecting  corporations  are  binding  upon  them 
without  their  assent.  New  York  6-  N.  E. 
K.  C».'j  Appeal,  62  Conn.  527,  26  Atl.  Rep. 
122.— Applying  New  Yoric  &  N.  E.  R.  Co. 
V.  Waterbury,  60  Conn.  1 ;  Builcley  v.  New 
York  &  N.  H,  R.  Co..  27  Conn.  479;  English 
V.  New  Haven  &  N.  Co.,  32  Conn.  240; 
Bridgeport  v.  New  Yoric  &  N.  H.  R.  Co.,  36 
Conn.  264. 

The  police  power  of  the  state  extends  to 
the  protection  of  the  lives,  limbs,  health, 
comfort  and  quiet  of  all  persons,  and  the 
protection  of  all  property  within  the  state. 
Afissouri  Pac.  A'.  Co.  v.  Finley,  38  Kan.  550, 
16  Pac.  Rep.  951. 

The  state  has  reserved  to  itself  the  right 
to  enact  police  laws  necessary  to  secure  the 
lives  and  property  of  its  citizens.  Among 
the  powers  thus  reserved,  and  which  must 
inhere  in  the  state,  is  that  of  prescribing  rea- 
sonabic  regulations  for  the  government  of 
railroad  corporations  in  regard  to  the  man- 
ner in  which  they  shall  exercise  their  cor- 
porate franchises  in  running  their  trains,  so 
as  to  avoid  danger  to  the  lives  and  property 
of  its  citi/cns ;  and  every  railroad  accepts  its 
charter  subject  to  such  power.  Lake  Shore 
6-  M.  S.  R.  Co.  V.  Cincinnati,  S.  &•  C.  R. 
Co.,  30  0/iio  S/.  604,  16  Am.  Ry.  Rep  291. — 
Reviewing  Toledo,  P.  &  W.  R,  Co.  v. 
Deacon,  63  III.  91. 

10.  Wlint  statiitcg  arc  valid  exer- 
ciHOHof  the  police  power.— Dak.  Spe- 
cial Laws  of  1885, ch.  i7,§  16,  exempting  ten 
rounties  of  the  territory  from  the  operation 
' '  (■  Co'ie  Civ.  Pro.  §  747,  as  amended  by 
ch.  115  of  1883,  declaring  owners  liable  for 
all  dii mages  done  by  their  stock  while  tres- 
pas":  ,'"upon  thelandsofanother,"  is  valid. 
Sucii  exemption  is  within  the  police  power 
of  the  legislature.  Sprague  v.  Fremont,  E. 
6-  M.  V.  R.  Co.,  6  Dak.  86,  50  A^.  IV.  Rep. 
617. 

Missouri  statut  of  1881  requiring  the 
erection  of  depots  and  waiting  rooms  at 
railroad  crossings  is  a  legitimate  exercise  of 
the  police  power  of  the  state.  State  ex  rel 
v.  Kansas  City.  Ft.  S.  <S-  G.  R.  Co.,  32  Fed, 
Rep.  722.— FoLi  OWING  State  z/. Wabash,  St! 
L.  &  P.  R.  Co..  i     Mo,  144. 

The  statute  enacted  for  the  protection  of 
cattle  against  contagious  diseases,  having 
for  its  object  protection  of  the  cattle  of 
Kansas  from  the  disease  known  as  Texas, 
splenic  or  Spanish  fever,  is  justified  as  a 
police  regulation,  and  therefore  is  not  in 
contravention  of  any  provision  of  the  Con- 


stitution of  the  United  States.  Missourt 
Pac.  R  Co.  V.  Finley,  38  Kan.  550,  16  Pae. 
Rep.  951. 

III.  Act  of  Feb.  2$,  1854,  exempting  the 
Galena  &  Chicago  Union  railroad  from  the 
operation  of  the  general  law  requiring  all 
railroads  to  ring  a  bell  or  sound  a  whistle 
at  road  or  street  crossings,  is  not  unconsti- 
tutional. The  legislature  may  withdraw  a 
police  regulation  as  well  as  impose  it.  Ga- 
lena &'  C.  U.  R.  Co.  v.  Dill.  22  ///.  265. 

III.  Act  of  May  29,  1879,  requiring  all  reg- 
ular passenger  trains  to  stop  at  county  seat 
stations  long  enough  to  receive  and  let  oil 
passengers  with  safety,  is  not  a  regulation 
of  interstate  commerce,  and  therefore  in- 
hibited by  the  Constitution  of  the  United 
States,  though  the  line  of  the  road  may  pass 
through  different  states.  Such  a  law  is  but 
a  proper  exercise  of  the  police  power  of 
the  state.  Chicago  &»  A.  R.  Co.  v.  People, 
13  Am.  &•  Eng.  R.  Cas.  42.  105  ///.  657. 

Ind.  Act  of  March  9.  1889,  requiring  rail- 
road authorities  to  write  upon  a  blackboard 
in  each  passenger  depot  at  which  there  is 
a  telegraph  office,  at  least  twenty  minutes 
before  the  schedule  time  for  the  arrival  of 
each  passenger  train  stopping  at  such  sta- 
tion, the  fact  whether  such  train  is  on  time, 
and  if  late,  how  much,  and  providing  a  pen- 
alty for  the  violation  of  the  act,  is  consti- 
tutional. State  V.  Indiana  &*  I.  S.  R.  Co., 
133  /m</.  69,  32  A'.  E.  Rep.  817,— Followed 
IN  State  V.  Pennsylvania  Co.,  133  Ind.  700. 

Sections  1167,  ti68,  Tenn.  Code,  in  force 
in  1865,  relating  to  injuries  to  persons  and 
property  by  the  operation  of  trains,  are 
valid  and  constitutional  as  police  regula- 
tions. Louisville  fi-  N.  R.  Co.  v.  Burke,  6 
Coldw.  ( Tenn.)  45. 

20.'What  statutes  are  not  Justified 
under  the  police  power.— Illinois  Act 
of  1855,  making  railroad  companies  liable 
for  all  expenses  of  a  coroner  and  his  inquest, 
and  the  burial  of  all  persons  who  may  die 
on  its  cars,  or  who  may  be  killed  by  colli- 
sion or  other  accident  occurring  to  such 
cars,  or  otherwise,  is  unconstitutional  and 
void,  so  far  as  it  attempts  to  make  such 
companies  liable  in  cases  where  they  have 
violated  no  law  or  have  been  guilty  of  no 
negligence.  Ohio  &*  M.  R.  Co.  v.  Lackey, 
78  ///.  55.  —  Approved  in  Denver  &  R. 
G.  R.  Co.  V.  Outcalt,  2  Colo.  App.  395. 
Distinguished  in  Grissell  7/.  Hoosatonic 
R.  Co.,  32  Am.  &  Eng.  R.  Cas.  349, 54  Conn. 
447.  4  N.  Eng.   Rep.  85,  9  Atl.  Rep.  137; 


MO 


STATUTES,  21-23. 


lii  ji 


;:!.^ 


1 


Sullivan  v.  Oregon  R.  &  N.  Co..  19  Orey. 
319.  Followed  in  Oiteril  v.  Union  Pac. 
R.  Co.,  2  Idaho  540 ;  Bieienbergw.  Montana 
Union  R,  Co.,  38  Am.  &  Eng.  R.  Cas.  275. 
o  Mont.  271. 

Police  regulations,  established  by  the  leg- 
islature lor  the  convenience  merely  of  the 
public  or  travelers  on  railroads,  cannot  be 
upheld  against  individuals  or  private  cor- 
poratiors.  State  v.  A'oyes,  47  Me.  189.  — 
Criticised  and  extended  in  Boston  & 
M.  R.  Co.  V.  York  County  Com'rs,  32  Am.  & 
Eng.  R.  Cas.  271,  79  Me.  386,4  N.  Eng.  Rep. 
657.  10  Atl.  Rep.  113. 

21.  Statutes  affecting  remedies 
oiily.*-Cal.  Act  of  April  14,  1863.  §  i, 
providing  for  the  enforcement  in  a  justice's 
court  of  pv^nalties  against  a  railroad  for 
overcharging  upon  fares,  is  not  unr  nstitu- 
tional  as  infringing  upon  the  original  juris- 
diction of  the  district  courts;  its  constitu- 
tionality cannot  be  tested  by  the  provisions 
of  the  Practice  Act.  Need  v.  Omnibus  A\ 
Co.,  33  Cat.  212.— Followed  in  Smith  v. 
Omnibus  R.  Co.,  36  Cal.  281. 

Ga.  Act  of  1854  relating  to  remedies  for 
all  injuries  caused  by  a  railroad  is  constitu- 
tional, and  is  not  repealed  by  the  act  of 
1856  relating  to  injures  caused  by  the  run- 
ning of  locomotives  or  cars.  Muscogee  A*. 
Co.  V.  JVeal,  26  Ga.  i?o.— Following  Jones 
V.  Central  R.  &  B.,  18  Ga.  247. 

It  is  not  in  violation  of  that  clause  of  the 
Constitution  which  requires  civil  suits  to  be 
tried  in  the  county  of  the  residence  of  the 
defendant  for  the  general  assembly  to  pre- 
scribe by  law  that  suits  against  railroad 
companies  may  be  brought  and  tried  in  the 
county  where  the  injury  has  been  done  or 
wh  're  a  contract  has  been  made  or  is  to  be 
performed.  Georgia  R.  &*  B.  Co.  v.  Oaks, 
52  Ga.  410,  7  Am.  Ry.  Rep.  143.— ArPROV- 
ING  Davis  V.  Central  R.  &  B.  Co..  17  Ga. 

336- 

The  right  to  a  particular  remedy  is  not 
a  vested  right,  unless  in  thor:  special  cases 
where  the  remedy  is  part  of  the  right  itself. 
Aside  from  this  exception  the  state  has 
complete  control  over  remedies,  provided 
that  in  changing  the  remedy  it  does  not 
impair  the  pre-existing  right.  Musgrovt  v. 
Vicksburg  &*  N.  R.  Co.,  50  Afiss.  677. 

N.  Car.  Act  of  1887.  ch.  33,  placing  the 


*  Cnange  in  the  remedy  for  the  enforcement 
of  a  contract,  see  note,  14  Ah.  St  Eno.  R.  Cas. 
99- 


burden  of  proving  contributory  negligence 
on  the  defendant,  only  ai!ects  the  remedy 
and  impairs  no  vested  right ;  and  it  was, 
therefore,  competent  for  the  legislature  to 
pass  the  statute.  Wallace  v.  Western  N, 
C.  R.  Co.,  41  Am.  &*  Eng.  R.  Cas.  212,  104 
A'.  Car.  442,  10  5.  E.  Rep.  552. 

22.  Statutes  regulating  coin.neree. 
— lilinois  Railroad  Act,  §  87,  to  prevent  un- 
just discriminations  in  rates,  is  not  unconsti- 
tutional as  an  attempt  to  regulate  interstate 
commerce,  when  applied  to  a  shipment 
from  the  state  to  another  state.  Where 
the  carriage  is  for  a  gross  sum,  it  implies 
that  the  charge  is  proportionate  for  every 
part  of  the  distance,  and  the  offense  may 
be  complete  before  the  state  line  is  reached. 
Wabash,  St.  L.  &*  P.  R.  Co.  v.  People,  105 
///.  236.  —  Following  People  v.  Wabash, 
St.  L.  &  P.  R.  Co.,  104  III.  476. 

Iowa  Act  of  1862,  ch.  169,  provided  that 
railroad  companies  should  annu^'ly  fix  rates 
for  the  transportation  of  passengers  and 
freights.  ::nd  should  cause  a  printed  copy  of 
such  rates  to  be  posted  at  all  stations  and 
depots,  and  provided  a  penalty  for  charging 
a  higher  rate.  Held,  that  this  was  not  an 
attempt  to  regulate  commerce  among  the 
states,  within  the  meaning  of  the  federal 
Constitution,  but  was  valid  as  a  ptjlice  regu- 
lation. Chicago  &»  Ar  W.  R.  Co.  v.  Fuller, 
17  Wall.  (U.  S.)  f  -.-Quoted  in  Little 
Rock  &  Ft.  S.  R.  Co.  V.  Hanniford,  49  Ark. 
291,  5  S.  W.  Rep.  294. 

Minnesota  Act  of  March  7,  1887,  creating 
a  railroad  and  warehouse  commission,  pro- 
viding that  the  rates  charged  by  railroad 
companies  shall  be  equal  and  reasonable, 
and  conferring  power  upon  the  commission 
to  find,  on  the  filing  with  it  by  a  railroad 
company  of  copies  of  its  schedule  of  rates, 
that  any  part  thereof  is  unequal  or  unrea- 
sonable, and  tu  compel  the  company  to 
change  the  same  and  adopt  such  charge  as 
the  commission  "shall  declare  to  be  equal 
and  reasonable,"  is  unconstitutional,  as  a 
deprivation  of  property  without  due  process 
of  law,  in  that  it  fails  to  provide  for  any  hear- 
ing, for  summons  or  notice  to  the  company, 
or  for  any  opportunity  for  the  company  to 
introduce  witnesses  before  the  commission. 
Chicago,  M.  &*  St,  P.  R.  Co.  v.  Minnesota, 
42  Am.  &*  Eng.  R.  Cas.  285,  134  £^.  .S.  418, 
10  Sup.  Ct.  Rep.  702.  See  also  Muhh  v.  Illi- 
nois,^ U.  S.  113. 

23.  —  interstate  commerce.— IIIi> 
noil  Act  of  April  25. 1871,  entitled  "  An  act 


m 


STATUTES,  24. 


261 


gligence 
remedy 


to  regulate  public  warehouses  and  the  ware- 
housing and  inspection  of  grain,  and  to  give 
effect  to  art.  i^  of  the  Constitution  of  this 
state,"  is  not  repugnant  to  the  Constitution 
of  the  United  States.  Munn  v.  Illinois,  94 
U.  S.  113.  But  see  Chicago,  M.  <S-  St.  P.  R. 
Co.  V.  Minnesota,  42  Am.  &'  Eng.  R.  Cas. 
285, 134  U.  S.  418.  10  Sup.  a.  Rep.  702, 

Grain  warehouses  which  are  situate  r^aA 
carry  on  business  entirely  within  a  state 
may  be  termed  instruments  of  interstate 
commerce,  but  they  are  not  such  commerce 
themselves  because  they  transfer  grain  from 
one  road  to  another  which 'may  run  into 
other  states ;  and  until  congress  acts  in  ref> 
crence  to  their  interstate  relations  the  reg« 
ulations  of  the  state  government  may  be  en- 
forced.   Munn  V.  Illinois,  ^:^  U.  S.  113. 

The  enforcement  of  the  proviso  to  Illi- 
nois Act  of  1855,  §  25,  relating  to  the  fenc- 
ing and  operating  of  railroads,  which  re- 
quires all  regular  passenger  trains  to  stop  a 
sufficient  length  of  time  at  the  railroad  sta- 
tions of  county  seats  to  receive  and  let  off 
passengers  with  safety,  in  respect  to  mail 
trains  running  through  this  state  into  other 
states,  will  not  conflict  with  §  8,  art.  i,  of 
che  Constitution  of  the  United  States, 
which  confers  upon  congress  the  power  to 
regulate  commerce  among  the  states ;  nor 
is  such  proviso  invalid  as  interfering  with 
the  carrying  of  the  mails.  Illinois  C.  R.  Co, 
v.  People,  143  ///.  434.  33  ^-  E.  Rep.  173. 

Ind.  Act  requiring  notice  of  the  arrival  of 
trains  is  operative  only  when  the  company 
or  person  operating  the  railroad  possesses 
the  information,  or  the  means  of  conveying 
such  information  to  the  point  where  it  is 
to  be  noted,  and  the  fact  that  to  carry  out 
the  law,  as  required  by  the  statute,  would 
necessitate  the  transmission  of  knowledge 
belonging  to  the  master  by  a  servant  to  a 
servant  of  the  same  master  in  another  state 
does  not  impose  any  restrictions  on  the  free- 
dom of  commerce,  and  would  not  be  an  in- 
terference with  interstate  commerce,  for  the 
reason  that  the  act  of  the  servant  or  serv- 
ants is  the  act  of  the  master,  and  a  person 
cannot  carry  on  commerce  with  himself. 
State  V.  Indiana  &*  I.  S.  R.  Co.,  133  Ind. 
69,  32  A'.  E.  Rep.  817. 

Md.  Acts  of  1832,  ch.  175,  1836,  ch.  261, 
1844,  ch.  103.  1845,  ch.  370,  1852,  ch.  328>  in 
•o  far  as  they  provide  that  the  Baltimore  & 
Ohio  railroad  company  shall  pay  semi-an- 
nually to  the  treasurer  of  the  state,  for  its 
use,  one  fifth  of  the  whole  amount  that 


may  be  received  by  the  company  for  the 
transportation  of  passengers  between  Wash- 
ington and  Baltimore,  are  not  in  conflict 
with  the  Constitution  of  the  United  States. 
State  V.  Baltimore  6-  O.  R.  Co.,  34  Md.  344. 

Defendant  was  organized  as  a  corporation, 
under  the  statutes  of  several  states,  to  o{>er- 
ate  a  continuous  line  of  road  running 
through  those  states,  which  had  previously 
been  operated  by  the  consolidated  corpora- 
tions. It  was  claimed  that  those  statutes, 
so  far  as  they  authorized  the  consol'r^ation 
in  adjoining  states,  were  repugnant  ^o  the 
provision  of  the  U.  S.  Constitution,  art.  i, 
§  8,  sub.  3,  conferring  on  congress  the  power 
to  regulate  commerce  with  foreign  nations 
and  among  the  several  states.  Held,  un- 
tenable ;  that  in  the  absence  of  any  legisla- 
tion by  congress  upon  the  subject,  the 
power  so  to  legislate  existed  in  the  states. 
Boardman  v.  Lake  Shore  S-  M.  S.  R.  Co..  4 
Am.  <S-  Eng.  R.  Cas.  265,  84  N.  Y.  157. 

Tenn.  statute  of  March  24,  1875,  in  solar 
as  it  abrogates  al!  common-law  remedies  for 
the  wrongful  exclusion  of  a  passenger  from 
the  cars  of  a  railroad  company,  is  unconsti- 
tutional as  to  railroads  running  between  two 
or  more  states,  it  being  a  regulation  of  in- 
terstate commerce.  Brown  v.  Memphis  &» 
C.  R.  Co.,  5  Fed.  Rep.  499. 

24.  Statutes  regriilatingr  firetKht 
charges.*— Iowa  Act  of  March  23,  1874, 
entitled  "  An  act  to  establish  reasonable 
maximum  rates  of  charges  for  the  transpor- 
tation of  freight  and  passengers  on  the  dif- 
ferent roads  of  this  state,"  is  not  in  conflict 
with  the  state  Constitution,  art.  i,  §  4,  pro- 
viding that  "ail  laws  of  a  general  nature 
shall  have  a  uniform  operation,"  and  that 
"  the  general  assembly  shall  not  grant  to 
any  citizen,  or  class  of  citizens,  privileges  or 
immunities  which,  upon  the  same  terms 
shall  not  equally  belong  to  all  citizens"; 
nor  is  it  a  regulation  of  interstate  com- 
merce. Chicago,  B.  &»  Q.  R.  Co.  v.  Iowa, 
SH  £/.  5.  1$;,  16  Am.  Ry.  Rep.  169. 

Arkansas  Act.  of  Feb.  27,  1885,  which  pro- 
hibits charging  or  collecting  a  greater 
amount  of  freight  than  is  charged  in  the 
bill  of  lading,  and  providing  a  penalty  for 
refusing  to  deliver  godds  upon  payment  or 
tender  of  the  amount  as  charged  in  the  bill 

*  Freight  charges  ;  constitutionality  of  stat- 
utes regulating,  see  notes,  31  Am.  k  Eno.  R. 
Cas.  so;  18  Id.  486  ;  35  Id.  518. 

Statutes  prohibiting  overcharges,  tee  note, 
a  I  Am.  &  Eno.  R.  Cas.  47. 


252 


STATUTES,  25. 


of  lading,  operates  upon  all  persons  in  a 
general  or  uniforn;  way  who  come  within 
its  class,  and  is  not  unconstitutional  as  being 
special  legislation.  Little  Rock  &*  Ft.  S.  A'. 
Co.  V.  Hanniford,  \<)Ark.  291,  5  5.  W.  Rep. 
294. 

The  provisions  of  Pa.  Act  of  June  4, 1873, 
so  far  as  they  attempt  to  regulate  freight 
charges  on  goods  transported  from  this 
state  to  foreign  countries  or  to  other  states, 
are  unconstitutional,  the  subject  being 
within  the  exclusive  jurisdiction  of  con- 
gress and  forbidden  to  the  states.  Wig- 
ton  V.  Pennsylvania  R.  Co.,  20  Phila.  {Pa.) 
184.— Quoting  Wabash,  St.  L.  &  P.  R.  Co. 
V.  Illinois,  118  U.  S.  570.  Reviewing  Hall 
V.  De  Cuir,  95  U.  S.  485. 

25.  Statutes  regulating  passenger 
fiires  and  tickets— Ticlcet  brolcers.— 
Under  a  Constitution  conferring  upon  the 
legislature  power  to  alter  or  revoke  charters 
thereafter  granted,  and  to  correct  abuses 
and  excessive  charges  by  railroad  com- 
panies, a  statute  limiting  the  maximum  fare 
for  the  carriage  of  passengers  within  a  state 
to  three  cents  a  mile  is  not  a  taking  of 
property  without  due  process  of  law  within 
the  meaning  of  the  prohibition  in  the  fed- 
eral Constitution,  in  the  case  of  a  corpora- 
tion reorganized  on  the  sale  of  a  railroad 
under  a  decree  of  foreclosure  after  the  adop- 
tion of  the  state  Constitution,  althovigh  the 
operation  of  the  statute  will  reduce  the  net 
yearly  income  of  the  company  to  less  than 
one  and  a  half  per  cent,  on  the  original  cost 
of  the  road,  and  only  slightly  over  two  per 
cent,  on  the  bonded  debt,  there  being  no 
evidence  to  show  how  much  the  bonds  cost, 
or  the  amount  of  the  capital  stocks  reor- 
ganized, or  the  sum  paid  for  the  road  at  the 
foreclosure  sale.  Dow  v.  Beidelman,  34 
Am.  &*  Eng.  R.  Cas.  322,  125  U.  S.  680,8 
Sup.  Ct.  Rep.  1028.  — Following  Chicago, 
B.  &  Q.  R.  Co.  V.  Iowa, 94  U.S.  155.— FoL- 
LOWKu  IN  Georgia  R.  &  B.  Co.  v.  Smith, 
128  U.  S.  174;  Wellman  v.  Chicago  &  G.  T. 
R.  Co..  83  Mich.  592. 

A  statute  dividing  railroad  companies 
into  classes,  according  to  the  length  of  the 
roads  operated,  and  fixing  a  different  limit 
for  passenger  fares  for  each  class,  does  not 
deny  a  corporation  the  equal  protection  of 
the  laws  within  the  meaning  of  the  prohibi- 
tion in  the  federal  Constitution.  Dow  v. 
Beidelman,  34  Am.  &*  Eng.  R,  Cas.  322,  135 
[/.S.6S0,  %Sup.  Ct.  R,p.  1028.— Following 
Illinois  C.  R.  Co.  v.  Illinois,  108  U.  S.  541. 


Ark.  Act  of  April  4,  1887,  providing  a 
maximum  schedule  of  charges  for  the  car- 
riage of  passengers  by  railroads,  and  classi- 
fying railroads  according  to  their  length, 
operates  uniformly  on  each  class,  and  is  not 
therefore  special  legislation  within  the  con- 
stitutional prohibition.  Dow  v.  Beidelman, 
49  Ark.  325,  55.  W.  Rep.  297. 

III.  Act  of  April  19,  1875,  requiring  rail- 
road companies  and  others  to  provide  tick- 
et agents  with  certificates  of  their  authority, 
forbidding  unauthorized  persons  to  sell 
tickets,  and  requiring  the  redemption  of  un- 
used tickets  and  coupons,  is  not  invalid  as  a 
violation  of  III.  Const,  art.  2,  §  2,  prohibit- 
ing the  taking  of  property  without  due  proc- 
ess of  law,  but  is  the  legitimate  exeicise  by 
the  legislature  of  the  police  powers  of  the 
state.  Burdick  v.  People,  58  Am.  &*  Eng. 
R.  Cas.  28,  149  ///.  600,  36  N.  E.  Rep.  948. 

Neither  does  the  act  violate  III.  Const,  art. 
4,  §  22,  providing  that  special  laws  shall  not 
be  passed  granting  to  any  corporation,  asso- 
ciation or  individual  any  special  or  exclu- 
sive privilege,  immunity  or  franchise  what- 
ever, since  the  requirements  that  tickets 
shall  only  be  sold  by  authorized  agents  is 
merely  a  police  regulation  as  to  the  manner 
in  which  the  business  of  the  carrier  shall  be 
conducted,  and  the  restrictions  conducting 
the  selling  of  tickets  are  only  such  restraints 
as  the  government  may  justly  prescribe. 
Burdick  V.  People,  58  Am.  <S-  Eng.  R.  Cas. 
28,  149  ///.  600.  36  N.  E.  Rep.  948. 

Nor  is  the  second  section  of  the  act  pro- 
hibiting the  unauthorized  sfile  of  tickets  en- 
titling the  holder  to  travel  on  any  railroad 
"whether  the  same  be  situated  within  or 
without  the  limits  of  this  state,"  in  contra- 
vention of  U.  S.  Const,  art.  1,  §8,  cl.  8,  con- 
ferring upon  congress  the  power  to  regulate 
commerce  among  the  states,  since  the  duty 
which  the  act  imposes  upon  carriers  and 
their  agents  in  no  wise  interferes  with  the 
freedom  of  interstate  travel.  Burdick  v. 
People,  $8  Am.  &*  Eng.  R.  Cas.  28,  149  ///. 
600,  36  A'.  E.  Rep.  948. 

Nor  is  the  act  in  contravention  of  the  pro- 
visions of  the  state  or  federal  Constitutions 
forbidding  the  impairment  of  the  obligation 
of  contracts  by  legislation,  as  to  tickets  is- 
sued by  a  railroad  company  eighteen  years 
after  the  passage  of  the  act.  Burdick  v. 
PtopU,  58  Am.  &*  Eng.  R.  Cas.  28.  149  ///. 
600k  36  A^  E.  Rep.  948. 

Minn.  Laws  1893,  ch.  66.  entitled  "An  act 
to  regulate  liio  saleuiid  redemption  of  trana* 


STATUTES,  26,27. 


253 


portation  tickets  of  common  carriers  and  to 
provide  punishment  for  the  violation  of  the 
same,"  is  not  unconstitutional,  either  as 
"  class  legislation  "  granting  special  privi- 
leges to  carriers,  or  as  a  delegation  of  the 
police  power  of  the  state  to  grant  licenses 
to  engage  in  a  business,  or  as  an  interfer- 
ence with  interstate  commerce,  or  (at  least 
as  to  tickets  purchased  after  the  passage  of 
the  act)  as  depriving  a  citizen  of  his  prop- 
erty "  without  due  process  of  law."  Stale  v. 
Corbett,  58  Am.  SfEttg.  R.  Cas.  35,  57  Minn. 
345,  59  N.  W.  Rep.  317. 

If  a  business,  as  that  of  common  carriers, 
is  a  proper  subject  of  police  regulation,  so 
are  its  incidents  and  accessories ;  as,  for  ex- 
ample, the  issue  and  sale  of  transportation 
tickets.  State  v.  Corbett,  $8  Atn.  6-  Eng.  R. 
Cas.  35,  57  3//nn.  345,  59  A^.  JV.  Rep.  317. 

The  regulation  of  tolls  on  bridges  and 
turnpike  roads,  and  fares  on  railroads  and 
ferries,  which  are  used  for  communication 
and  commerce  between  states,  is  part  of  the 
powers  reserved  to  the  states,  and  is  not 
delegated  to  the  general  government.  Hud' 
son  County  Chosen  Freeholders  v.  State,  24 
N.J.L.  718  ;  affirming  23  N.J.  L.  206. 

New  York  Act  of  1875,  ch.  600,  reducing 
the  rate  of  fare  for  carrying  passengers  on 
street  railways  in  the  city  of  Buffalo,  is  a 
valid  exercise  of  the  police  power  of  the 
state,  and  is  not  rendered  unconstitutional 
by  the  fact  that  a  contract  existed  between 
two  companies  for  the  interchange  of  traffic 
at  the  rates  of  fare  which  existed  previous 
to  its  enactment.  Buffalo  East  Side  R.  Co. 
V.  Buffalo  St.  R.  Co.,  yj  Am.  <S-  Eng.  R.  Cas. 
zoo.  III  A^.  Y.  132,  19  A^.  E.  Rep.  63,  ig  N. 
y.S,  R.  574.— Quoting  Munnv.  Illinois,  94 
U.S.  124  ;  Sinking  Fund  Cases,  99  U.  S.747. 

Pa.  Act  of  May  6,  1863,  and  its  amend- 
ment of  April  to,  1872,  which  prohibit  the 
sale  o(  railroad  tickets  except  by  the  agents 
of  the  companies,  and  make  a  violation  of 
the  act  a  misdemeanor,  are  constitutional. 
State  legislatures  have  the  right  to  pass 
such  acts.  Com.  v.  IVilson,  14  Phila.  (Pa.) 
384.  —  Quoting  Hannibal  &  St.  J.  R.  Co. 
V.  Iluscn,  95  U.  S.  465. 

20.  Fence  aiul  stock  laws,  ffener- 
nlly.*— An  act  of  the  legislature  requiring 


*  Sec  also  Animals,  Injuriks  to,  1-28. 

Constituiionalitjr  of  fence  laws,  see  note,  aa 
Am.  &  Enr.  R.  Cas.  564. 

Validity  of  statutes  imposing  criminal  liability 
upon  officers  for  negligent  killing  of  stock,  see 
note,  31  Am.  ft  Eno.  R.  Cas.  579. 


pre-existing  railroad  companies  to  fence 
their  roads,  and  making  them  liable  for 
stock  killed  by  reason  of  a  neglect  to  fence, 
is  not  unconstitutional.  Galena  &*  C.  U.  R. 
Co.  V.  Crawford,  25  ///.  529.— Following 
Ohio  &  M.  R.  Co.  V.  McClelland,  25  111.  140. 

Illinois  Act  of  1879,  making  railway  cor- 
porations liable  for  attorney's  fees  in  addi- 
tion to  the  damage  sustained  by  the  owners 
of  stock  by  killing  or  injuring  the  same 
through  a  neglect  to  fence  their  roads  and 
keep  the  same  in  repair,  is  not  unconstitu- 
tional as  being  special  legislation,  in  sin- 
gling out  one  class  of  corporations  alone. 
Peoria,  D.  &*  E.  R.  Co.  v.  Duggan,  20  Am. 
6"  Enjg.  R.  Cas.  489,  109  ///.  537,  50  Am. 
Rep.  619. 

The  ^'^gislature  may,  by  general  laws,  im- 
pose such  obligations  and  restrictions  upon 
railroads  in  regard  to  their  business  and  for 
the  security  of  public  interests  as  materi- 
ally to  affect  their  profits.  The  requirement 
of  cattle-guards  at  farm  crossings,  as  a  part 
of  a  division  fence  between  adjoining  occu- 
pants, falls  legitimately  within  legislative 
authority.  So,  too,  it  is  but  a  proper  secu- 
rity for  the  lives  of  domestic  animals,  which 
forms  a  proper  subject  of  legislation.  And 
it  is  but  a  reasonable  security  to  others 
against  a  dangerous  business,  which  the  leg- 
islature may  justly  require.  Thorpe  v.  Rut- 
land &»  B.  R.  Co.,  27  yt.  140.— Following 
Nelson  v.  Vermont  &  C.  R.  Co.,  26  Vt.  717. 
Quoting  Galena  &  C.  U.  R.  Co.  v.  Loomis 
13  III.  548.— Reviewed  in  Com.  v.  Chesa- 
peake &  O.  R.  Co.,  27  Gratt.  (Va.)  344. 

27.  Statutes  iiiipoHing  al>8oliito 
liability  for  killini;  Htock.*  — An  act 
which  fixes  absolute  liability  on  a  corpora- 
tion to  make  compensation  for  injuries  done 
to  property  in  the  prosecution  of  its  lawful 
business,  without  any  wrong,  fault  or  neg- 
lect on  its  part,  when  under  the  general 
law  of  the  land  no  one  else  is  so  liable  under 
such  circumstances,  dO':!S  not  provide  the 
"  due  process  of  law  "  provided  for  in  the 
Constitution  of  the  United  States,  and  is 
therefore  void.  Cateri/v.  Union  Pac.  R. 
Co.,  2  Idaho  540,  21  Pac.  Rep.  416.— Fol- 
lowing Cairo  &  F.  R.  Co.  v.  Parks,  32  Ark. 
131  ;  Zeiglcr  v.  South  &  N.  Ala.  R.  Co.,  58 
Ala.  595 ;  Ohio  &  M.  R.  Co.  w.  Lackey,  78 
III.  55.— Followed  in  Jensen  r.  Union  Pac. 
R.  Co.,  6  Utah  iiy—Bielenberg  v.  Montana 


*See  Animals,  Injumu  to.  tt,  81,  120, 
238,230,281.  »       t       -» 


254 


STATUTES,  28,  30. 


Union  R.  Co.,  38  Am.  6*  Etig.  R.  Cas.  275. 
8  Mont.  271.2  L.  R.A.  813,  20  Pac.  Rep. 
314.— Distinguishing  Thorpe  v.  Rutland 
&  U.  R.  Co.,  27  Vt.  140,  62  Am.  Dec.  625; 
Rudetnacher  v.  Milwaukee  &  St.  P.  R.  Co., 
41  Iowa  302 ;  Ohio  &  M.  R.  Co.  v.  McClel- 
land, 25  III.  140;  Diamonds.  Northern  Pac. 
R.  Co.,  6  Mont.  580.  Following  Cairo  & 
F.  R.  Co.  V.  Parks,  32  Ark.  131  ;  Zeigler  v. 
South  &  N.  Ala.  R.  Co.,  58  Ala.  595  ;  Ohio 
&  M.  R.  Co.  V.  Lackey,  78  111.  55.  20  Am. 
Rep.  259.— Approved  in  Denver  &  R.  G. 
R.  Co.  V.  Outcalt,  2  Colo.  App.  395 ;  Ore- 
gon R.  &  N.  Co.  V.  Smailey,  i  Wash.  206. 
Distinguished  in  Sullivan  v.  Oregon  R. 
&  N.  Co.,  19  Oreg.  319.  Followed  in 
Thompson  v.  Northern  Pac.  R.  Co.,  8  Mont. 
279. 

III.  Act  of  1865,  which  makes  railroad  com- 
panies liable  for  damage  to  any  individual 
and  for  stock  killed  in  any  incorporated  city 
or  town,  where  their  trains  are  run  at  a 
greater  speed  than  is  permitted  by  the  or- 
dinances thereof,  is  constitutional.  Chicago, 
R.  I.  Sf  P.  R.  Co.  V.  R€idy,  66  ///.  43. 

28.  Statutes  iimkiiii;  aiipruiNcinent 
<»f  daiiingcs  iu  stock-killing  cases 
final.* — Montana  statute  of  Feb.  23,  1881, 
to  provide  for  the  payment  of  stock  killed 
or  injured  by  railroads,  as  amended  March 
2,  1883,  which  provides  for  an  appraisement 
which  is  conclusive  evidence  of  tlie  value  of 
the  stock,  is  unconstitutional  as  an  attempt 
to  deprive  railroad  companies  of  the  right 
of  trial  by  jury.  Graves  v.  Northern  Pac. 
R.  Co.,  19  Am.  &*  Eng.  R.  Cas.  436,  5  Afont. 
556.  51  Am.  Rep,  81. 

That  provision  of  Tenn.  Act  of  1891.  ch. 
loi,  is  valid  which  authorizes  the  appraise- 
ment of  the  damages  done  to  live  stock  by 
three  freeholders  appointed  by  a  justice  of 
the  peace  et  the  instance  of  the  owner,  and 
makes  their  report  prima  facie  evidence  of 
the  value  of  the  stock  injured  or  killed. 
This  is  a  mere  regulation  as  to  evidence, 
which  it  was  competent  for  the  legislature 
to  make.  Illinois  C.  R.  Co.  v.  Crider,  91 
Tenn.  489,  195.  W.  Rep.  618. 

2I>.  Statutes  iiii|iusinf;  liability  for 
Injuries  caused  by  fire.t— Conn.  Act  of 
1881,  ch.  92,  provides  that  where  an  injury 
is  done  to  "  a  building  or  other  property  " 
by  fire  from  a  locomotive,  the  company  shall 

*  See  Animals,  Injuries  to,  8. 

f  Constitutionality  of  statutes  imposing  liability 
(or  fires,  Me  38  Am.  &  Eno.  R.  Cas.  33a,  abttr. 
Sec  alsu  Fires,  33. 


be  liable,  and  sha..  have  an  insurat^le  in- 
terest  in  such  property.  Held,  that  the 
statute  is  not  unconstitutional,  (i)  either  as 
denying  to  railroads  the  equal  protection  of 
the  law ;  (2)  or  in  taking  their  property  with- 
out due  process  of  law;  (3)  or  by  impairing 
their  charter  contracts  which  authorize  them 
to  use  fire  in  their  locomotives.  Grissell  v. 
Hcusatonic  R.  Co.,  32  Am.  &*  Eng.  R.  Cat. 
349,  54  Conn.  447,  4  A'.  Ef^.  Rep.  85.  9  Atl 
Rep.  137. 

The  term  "  buildings  or  other  property," 
as  used  in  the  above  statute,  includes  fences 
and  forest  trees ;  and  it  is  no  objection  that 
the  property  is  not  such  as  is  ordinarily  in- 
surable. The  statute  creates  an  insurable 
interest,  which  is  not  dependent  on  the 
question  whether  an  insurer  can  be  found 
to  take  the  risk.  Grissell  v.  Housatonic  R. 
Co.,  32  Am.  (S-  Ettg.  R.  Cas.  349,  54  Conn, 
447,  4  A'.  Efig.  Rep  85.  9  Atl.  Rep.  137. 

The  statute  is  valid  in  its  application  to 
railroad  companies  which  had  taken  the 
land  for  their  road  and  paid  the  assessed 
damages  before  the  act  was  passed.  This  is 
especially  so  where  the  charter  of  such  a 
railroad  company  contains  a  provision  that 
it  may  be  altered  at  the  pleasure  of  the 
general  assembly,  and  that  it  shall  be  sub- 
ject to  all  general  laws  that  may  be  enacted. 
Grissell  v.  Housatonic  R.  Co.,  32  Am.  &* 
Etig.  R.  Cas.  349,  54  Conn.  447,  4  A^.  Efig. 
Rep.  85,  g  Atl.  Rep.  137.— Quoting  Hook- 
sett  V.  Concord  R.  Co..  38  N.  H.  242. 

Neither  is  the  above  statute  invalid  be- 
cause it  selects  railroad  corporations  only 
and  places  upon  them  an  extraordinary  risk. 
The  object  of  the  law  is  based  upon  the 
fact  that  such  corporations  run  their  trains 
over  narrow  strips  of  land  controlled  by 
them,  and  thereby  subject  all  combustible 
property  to  an  extraordinary  hazard.  Gris- 
sell V.  Housatonic  R.  Co..  32  Am.  &*  Eng.  R. 
Cas.  349,  54  Conn.  447,  4  A'.  Eng.  Rep.  85.  9 
Atl.  Rep.  137. 

Under  N.  H.  Rev.  St.  ch.  142,  §  8,  mak- 
ing railroad  companies  liable  for  all  damages 
which  result  to  persons  or  property  by  fire 
or  steam  from  their  locomotives,  and  giving 
such  companies  an  insurable  interest  in 
property  along  their  roads,  it  is  not  neces- 
sary, in  order  to  hold  a  company  liable,  thai 
the  fire  which  destroyed  the  property  should 
be  communicated  directly  from  the  locomu- 
tive.  So  where  a  company  fires  its  own 
bridge,  and  the  fire  is  communicated  thence 
to  plaintiff's  bridge  three  and  one  half  rods 


STATO    ES,  30-33. 


255 


distant,  the  company  is  liable.  Hooksttt  v. 
Concord  H.  Co..  38  N.  H.  242. 

For  construction  and  validity  of  similar 
statutes,  see  Hart  v.  WesUrn  R.  Co.,  13 
Mete.  (Mass.)  99.  Chapman  v.  Atlantic  S* 
St.  L.  R.  Co.,  37  Me.  92. 

30.  Statutes  allowing  attorney's 
fees.*— Kan.  Laws  1874.  ch.  94,  §  2,  giving 
"a  reasonable  attorney  fee"  to  the  plaintiff, 
in  case  of  a  recovery,  for  the  prosecution  of 
his  suit  against  a  railroad  corporation  for 
the  value  of  stock  killed  or  injured,  is  con- 
stitutional. Such  provision  is  in  the  nature 
of  a  penalty,  and  is  not  beyond  the  power 
of  the  legislature.  Kansas  Pac.  R.  Co.  v. 
Mower,  16  Kan.  573,  9  Atn.  Ay.  Rep.  400. 

Mich.  Act  No.  234,  Laws  of  1885,  allow- 
ing a  plaintiff,  in  a  suit  against  a  railroad 
company  to  recover  damages  for  killing 
cattle,  to  tax  as  a  part  of  his  costs  an  attor- 
ney's fee  of  $25,  is  unconstitutional.  Wilder 
V.  Chicago  &*  IV.  M.  R.  Co.,  70  Mich.  382. 
38  A'.  W.  Rep.  289,  14  West.  Rep.  627. 
Lafferty  v. Chicago &*  W. M.  R.  Co.,  71  Mich. 
35.  15  IVest.  Rep.  198.  38  N.  IV.  Rep.  660. 

Mississippi  Act  of  March  9,  1882,  which 
provides  for  a  reasonable  attorney's  fee  for 
the  appellee,  where  an  appeal  is  taken  from 
a  judgment  in  an  action  against  a  corpora- 
tion, and  affirmed,  is  unconstitutional  as 
discriminating  against  a  class  and  failing  to 
give  personal  equality  before  the  law.  Chi- 
c(^o,  St.  L.  &*  N.  O.  R.  Co.  V.  Moss,  20  Am. 
**  Eng.  R.  Cas.  555,  60  Miss.  641.— Re- 
viewing South  &  N.  Ala.  R.  Co.  v.  Morris, 
65  Ala.  193.— Approved  in  Smith  v.  Louis- 
ville &  N.  R.  Co.  21  Am.  &  Eng.  R.  Cas.  157, 
7$  Ala.  449. 

That  provision  of  Tenn.  Act  of  1891,  ch. 
lot,  is  valid  which  makes  railroads  wrong- 
fully refusing  to  pay  an  appraisement  fixing 
the  value  of  live  stock  killed  or  injured 
liable  for  plaintiff's  attorney  fee,  in  addition 
to  other  damages,  in  any  suit  brought  to 
recover  the  damages  withheld.  This  is  not 
obnoxious  class  legislation.  It  is  an  exer- 
cise of  the  police  power  of  the  state.  But 
no  fee  is  recoverable  unless  the  appraise- 
ment is  sustained.  Illinois  C.  R.  Co.  v.  Crider, 
9!  Tenn.  489.  19  5.  W.  Rep.  618.— Approv- 
ING  Missouri  Pac.  R.  Co.  v.  Humes,  115  U.  S. 
523.  Distinguishing  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Williams,  31  Am.  &  Eng.  R.  Cas. 
555,  49  Ark.  492 ;  Wilder  v.  Chicago  &  W. 


*See  also  Animals,  k^lJMKSTO,  O,  584. 


M.  R.  Co.,  35  Am.  h  Fnp:.  R.  Cas.  162,  70 
Mich.  382. 

But  the  amount  of  such  attorney's  fee 
must,  like  other  damages,  be  fixed  by  the 
jury  or  the  court  sitting  as  a  jury.  The 
provision  of  the  act  requiring  the  fee  to 
"be  fixed  by  the  court  trying  the  case"  is 
construed  as  providing  for  jury  trial  of 
this  question,  thereby  saving  the  act  from 
unconstitutionality.  Illinois  C.  R.  Co.  v. 
Crider,  91  Tenn.  489,  19  5.  W.  Rep.  618. 

Neither  is  the  above  act  unconstitutional 
as  vicious  "  class  legislation  "  although  its 
provisions  confer  benefits  upon  a  limited 
class,  to  wit,  owners  of  live  stock,  and  impose 
burdens  upon  a  limited  class,  to  wit,  un- 
fcnced  railroads.  These  classes  are  natural 
and  not  arbitrary.  Illinois  C.  R.  Co.  v. 
Crider,  91  Tenn.  489.  19  S.  W.  Rep.  618. 

31.  Statutes  iu  aid  of  the  rebel* 
liou.— Miss.  Act  of  Dec.  7.  1863,  "to  en- 
able the  railroad  companies  of  this  state  to 
pay  the  moneys  borrowed  by  them,"  was  in 
aid  of  the  rebellion,  by  supplying  an  ex- 
hausted treasury  with  the  means  of  prose- 
cuting the  war  then  being  waged  for  the 
avowed  purpose  of  subverting  the  govern- 
ment of  the  United  States.  The  stsie 
treasurer  had  no  authority  to  receive  either 
Confederate  or  state  treasury  notes  from  the 
railroads  in  payment  of  the  money  bor- 
rowed by  them  before  secession.  Missis- 
sippi C.  R.  Co.  V.  State,  46  Miss.  1 57. 

33.  Statutes  nbrldgiug  the  privi- 
leges and  ininuiuities  of  citizens.— 
Georgia  Code,  §  3033,  providing  that  in  all 
cases  where  passengers  are  injured  the  pre- 
aumption  shall  be  against  the  company,  be- 
ing simply  declaratory  of  the  common  law, 
is  not  a  statute  abridging  the  privileges 
and  immunities  of  a  citizen,  in  violation  of 
U.  S.  Const,  art.  14.  Augusta  &*  S.  R. 
Co.  V.  Randall,  34  Am.  &»  Eng.  R.  Cas.  439, 
79  Ga.  304,  4  S.  E.  Rep.  674. 

33.  I^ws  passed  at  extra  sessions. 
—The  Illinois  Act  of  Feb.  9,  1854,  entitled 
"  An  act  to  amend  an  act  entitled  •  An  act  to 
incorporate  the  Macomb,  Vermont  &  Bath 
railroad,'  approved  Feb.  11,  1853."  is  not  so 
far  foreign  to  the  object  embraced  by  the 
act  of  Feb.  11,  1853,  as  to  authorize  the 
court  in  holding  It  not  to  be  an  amendment 
of  the  last-named  act,  and  therefore  void, 
as  not  being  embraced  in  the  purposes  in 
the  governors  call  of  the  special  session  of 
the  lepislaturc  of  1854.  Ross  v.  Chicago  B. 
Sr-Q.  R.  Co.,  77  III.  127. 


1 


356 


STATUTES,  34. 


:1 


'.  ■ 


ill  ii 


The  state  Constitution  declares  tliai  "  the 
general  assembly  shall  have  no  power,  when 
convened  in  extra  session  by  the  governor, 
to  act  upon  subjects  other  than  those  spe- 
cially designated  in  the  proclamation  by 
which  the  session  is  called."  Const.  1875, 
art.  4,  §  55.  ffeid,  that  the  "  act  to  provide 
(or  the  prevention  of  accidents  to  railroad 
employes,  and  others,  by  requiring  that 
switches,  frogs,  and  guard-rails  be  properly 
blocked."  passed  at  the  extra  session  of  1887, 
p.  14,  is  unconstitutional,  the  subject  there- 
of not  having  been  so  designated  in  the 
proclamation  by  the  governor.  IViUs  v. 
Missouri  Pac.  K.  Co.,  wo  Mo.  286, 195.  W. 
Rep.  530. 

The  constitutional  provision  above  quoted 
—held,  mandatory.  Wells  v.  .Missouri  Pac. 
R.  Co.,  no  Mo.  286.  19  S.  IV.  Rep.  530. 

34.  StatiitcM  eiiibrnciiig  more  tlinii 
one  subject,  or  Hiibjeets  not  ex- 
preHMcd  ill  the  t\t\ii.—  (\)  In  general.* 
—A  substantial,  not  a  literal,  conformity  of 
a  law  to  its  title  is  required  by  the  Constitu- 
tion.  The  title  indicating  that  a  railroad  is 
to  run  into  and  through  a  named  town,  and 
the  body  of  the  act  providing  for  running  it 
into  and  through  the  corporate  limits,  or 
within  one  mile  of  the  court-house,  on  cer- 
tain conditions,  the  title  covers  the  matter 
of  the  enactment.  Macon  <S-  B.  R.  Co.  v. 
Gibson,  85  C«i.  I,  1 1  S.  E.  Rep.  442. 

In  tlic  adopti(m  of  Ind.  Constitution,  art. 
4,  §  19,  two  purposes  were  had  in  view:  (i) 
to  have  the  title  indicate  the  subject-matter 
ot  the  act ;  (2)  to  promote  the  codification 
of  the  statutes.  Indiana  C.  R.  Co.  v.  Potts, 
7  Ind.6i\. 

I  Ind.  Rev.  St.  1852.  ch.  102,  §  2;,  is  not 
void  as  not  being  properly  included  within 
the  title  of  the  act  of  winch  it  is  a  part. 
Indiana  C.  R.  Co.  v.  Potts,  7  Ind.  681. 

If  the  title  of  an  act  fairly  and  reastmably 
announces  the  subject,  and  that  is  a  single 
one,  and  if  the  various  parts  thereof  have 
respect  or  relate  to  that  subject,  the  pr  ,• 
vision  of  the  Constitution  that  no  local  or 
private  bill  shall  embrace  more  than  one 
subject,  and  that  shall  be  expressed  in  the 
title  (N.  Y.  Const,  art.  3,  §  16),  is  complied 
with.  The  degree  of  relationship  of  each 
provision  is  not  essential  if  it  legitimately 
tends  to  the  accomplishment  of  the  general 

*  Title  nf  act  indicating  object  of  law,  see 
note,  s  Am.  ft  Eno.  R.  Cas.  387. 

Sufficiency  of  title  of  legislative  acts  concern- 
ing railroads,  see  note,  51  Am.  &  Eno.  R.  Cas.  3a 


purpose.  People  ex  rel.  v.  Havemeytr,  3 
Huh  (N.  Y.)  97.  16  Abb.  Pr.  N.  S.  219,  4 
T  &*  C.  365.  47  Now.  Pr.  494- 

(2)  Amendments.— Mich.  Act  No.  148  of 
1855,  as  amended  (How.  St.  Mich.  ch.  94),  is 
not  unconstitutional  because  the  original 
act  only  provides  for  the  carriage  of  freight, 
while  as  amended  it  provides  for  the  trans- 
portation also  of  passengers.  Detroit  City 
R.  Co.  V.  Mills,  46  Am.  &»  Et^g.  li.  Cas.  608, 
85  Mic/i.  634,  48  N.  W.  Rep.  1007.— Quot- 
ing Moses  w.  Pittsburgh,  Ft.  W.  &C.  R.Co.. 
21  III.  S16. 

Minn.  Sp.  Laws  1865,  ch.  10,  amending  ch 
19,  Laws  of  I S62,  entitled  "An  act  to  facilitate 
the  construction  of  a  railroad  from  Winona 
westerly  by  way  of  St.  Peter,"  is  in  conflict 
with  the  state  Constitution,  art.  4,  §  27,  pro- 
viding that  "  no  law  shall  embrace  mora 
than  one  subject,  which  must  be  expressed 
in  its  title,"  and  is  void.     Winona  &*  St.  P, 
R.  Co.  V.  Waldron,  11  Minn.  515  {Gil.  392). 
An  act  was  entitled  "  An  act  to  amend  a* 
act  entitled  'An  act   to    incorporate    thf 
Louisiana  &  Missouri  River  railroad  com* 
pany,'  by  increasing  the  amount  of  the  cap* 
ital  stock  of  said  company,  defining  more 
explicitly  the  power  of  the  board  of  directors 
to  fix  the  western  terminus  of  the  road,  au* 
thorizing  the  location  and  construction  of  » 
branch  road,  and  conferring  upon  said  board 
the  necessary  powers  to  carry  into  effect  the 
several  objects  contemplated  by  this  charter ; 
and  also  by  striking  out  sections  11,  18,  27, 
30,  and  31  of  said  act."    The  act  itself  did 
not  speak  of  the  repeal  of  the  original  act. 
or  any  part  of  it,  or  any  moditication  or 
amendment  of  it,  nor  did  it  mention  the 
original  act  at  all.  Held,  that  saic  act  could 
not  create  a  new  corporatir>n  undt ;  the  pro- 
hibition in  the  Constitution  agai'ist  special 
legislation  ;  that  the  title  is  no  part  of  the 
act,  and  that  the  language  of  its  title  alone 
could  not  operate  as  a  re|)ea'.  or  amendment 
of  the  original  act ;  and  that  such  parts  of 
the  acts  as  are  not  expressed  in  the  title  arc 
void.    State  ex  rel.  v.  Saline  County  Court, 
51    Mo.    350,   3  Am.  Ry.  Rep.    149.— DIS- 
TINGUISHED  IN  State  ex  rel.  v.  Sullivan 
County  Court,  51  Mo.  522.     Followed  in 
State  V.  Callaway  County  Court,  51  Mo.  395. 
The  title  of  "  An  act  entitled  '  A  supple- 
ment to  an  act  entitled  "  An  act  to  author- 
ize the  formation  of  railroad  corporations 
and  regulate  the  same," '  approved  April  2, 
1873,"   which    supplement    was   approved 
March  31, 1883,  does  not  expreN  the  sub- 


STATUTES,  84. 


267 


ject  of  the  legislation,  but  is  vague  and  mis- 
leading, and  tlierefore  the  act  is  void.  New 
York  &*  G.  L.  R.  Co.  v.  Montclair  Tp.,  47 
N.J.  Eg.  591,  a  I  Atl.  Rep.  493. 

The  body  of  the  act  imposes  upon  rail- 
road companies  the  duty  of  repairing 
bridges  over  public  roads,  and  empowers 
the  court  of  chancery  to  decree  a  specific 
performance  of  this  duty  The  supplement 
of  March  31,  1882,  mentioned  in  the  title^ 
deals  with  a  subject  entirely  foreign  to  this  ; 
it  provides  for  a  reduction  of  the  capital 
stock  of  railroad  companies  under  certain 
conditions.  New  York&*G.L.  R.  Co.\.  Mont' 
clair  Tp.,  47  N.J.  £",7.  591,  21  Atl,  Rep.  493. 

N.  J.  Act  of  March  1 1, 1880,  which  amends 
section  17  of  the  act  entitled  "An  act  to 
authorize  the  formation  of  railroad  corpora- 
tions and  to  regulate  the  same  "  (Rev.,  p. 
930),  is  free  from  constitutional  infirmity  in 
its  title  and  is  sufficiently  broad  in  its  terms 
to  confer  power  upon  railroad  corporations 
chartered  by  special  law.  Stockton  v.  Cen- 
tral R.  C«7.,  51  Am.  &»  Etig.  R.  Cas,  i,  50  AT. 
/.  Eg.  52,  24  Atl.  Rep.  964. 

New  York  Act  of  1885,  ch.  311,  amending 
and  consolidating  the  various  acts  relating 
to  New  York  city,  and  known  as  "  The  Con- 
solidation Act,"  is  not  unconstitutional  for 
the  reason  that  its  title  does  not  contain  a 
reference  to  the  acts  amended  by  it.  People 
ex  rel.  v.  Coleman,  21  A'.  Y.  S.  R.  178,  51 
Hun  640,  4  A''.  Y.  Supp.  417. 

(3)  Consolidation.  —  Tennessee  Act  of 
March  24,  1877,  entitled  "  An  act  to  amend 
the  law  in  relation  to  the  consolidation  of 
railways,"  does  not  violate  the  provision  of 
the  state  Constitution  which  requires  that 
statutes  shall  embrace  but  one  subject, 
which  must  be  expressed  in  the  title,  be- 
cause it  provides  that  such  corporations 
shall  not  create  mortgages  or  other  liens 
which  shall  be  superior  to  judgments  and 
decrees  for  materials  furnished  or  labor  per- 
formed on  the  roads  in  the  state,  or  for 
damages  to  persons  or  property  in  the  oper- 
ation of  the  road.  Frazier  v.  East  Tenn., 
V.  Sf  G.  R.  Co.,  40  Am.  &'EHg.  R.  Cas.  358, 
88  Tenn.  138,  12  S.  W.  Rep.  537. 

(4)  Construction  of  tracks,  motive  power, 
etc.Sew  Jersey  Act  of  March  14,  1870, 
authorizing  the  Paterson  &  Little  Falls 
Horse  &  Steam  railroad  company  to  con- 
struct a  railroad  in  the  city  of  Paterson,  is 
not  unconstitutional  as  failing  to  express  its 
object  in  its  title.  Paterson  R,  Co.  v.  Grundy, 
II  N.J.  Eg.  213,  26  Atl.  Rep.  788. 

7  D.  R.  D.— 17 


New  York  Act  of  April  19,  1859,  is  en- 
titled "  An  act  to  provide  for  the  closing  of 
the  entrances  of  the  tunnel  of  the  Long 
Island  railroad  company  in  Atlantic  street, 
in  the  city  of  Brooklyn,  and  restoring  said 
street  to  its  proper  grade,  and  for  the  re- 
linquishment by  said  company  of  its  right 
to  use  steam  power  within  said  city."  Held, 
that  a  provision  in  the  statute  for  compen- 
sation to  the  company  for  relinquishing  its 
right  to  use  steam  was  not  in  conflict  with 
that  provision  of  the  state  Constitution  that 
no  private  or  local  bill  shall  embrace  more 
than  one  subject,  and  that  shall  be  ex- 
pressed in  the  title.  People  ex  rel.  v.  Law- 
rence, \i  N.  K.  137 ;  affirming  36  Barb.  177. 

New  York  Act  of  1870,  ch.  147,  was  en- 
titled "  An  act  to  provide  for  the  relief  of 
the  city  of  Rochester,  and  the  New  York 
Central  &  Hudson  River  railroad  company 
in  said  city."  The  body  of  the  act  related  to 
the  elevation  of  the  company's  tracks,  the 
closing,  widening,  and  changing  the  grade 
of  streets,  and  the  payment  of  the  expenses 
thereof.  Held,  that  the  object  of  the  stat- 
ute was  sufficiently  expressed  in  the  title. 
Wilson  V.  New  York  C.  &*  H.  R.  R.  Co.,  2 
N.  Y.  Supp.  6$,  39Httn  651,  mem, 

Pennsylvania  Act  of  March  13,  1872, 
which  purports  to  authorize  certain  com- 
panies to  lay  additional  tracks  and  to  de- 
clare quarterly  dividends,  violates  the  pro- 
visions of  the  state  Constitution  that  stat- 
utes shall  contain  but  one  subject,  which 
shall  be  clearly  expressed  in  the  title. 
Philadelphia  Pass.  R,  Co.  v.  Union  Pass.  R. 
Co.,  9  Philii.  (Pa.)  495. 

A  part  of  a  statute  which  authorizes  a 
company  to  extend  its  road  to  a  designated 
place  is  not  so  foreign  to  the  object  ex- 
pressed in  the  title  of  the  act  as  to  make  it 
unconstitutional,  the  title  being  "  An  act  for 
the  relief  of  the  Houston  &  Texas  Central 
railway  company."  Houston  &*  T.  C.  R. 
Co.  V.  Odum,  2  Am.  &*  Etig.  R.  Cas.  503,  53 
Tex.  343. 

(5)  Employ h,  laborers  and  injured  per' 
sons. — Under  Iowa  Act  of  1862,  ch.  169,  en- 
titled "  An  act  in  relation  to  the  duties  of 
railroad  companies,"  it  is  proper  to  provide 
for  the  liabilities  of  such  companies  to  per- 
sons who  may  be  injured  by  the  negligence 
of  the  company,  as  the  "  liabilities  "  of  com- 
panies are  only  means  of  enforcing  the 
"  duties  "  indicated  in  the  title.  McAunick 
v.  Mississippi  &*  M.  R.  Co.,  ao  Iowa  338.— 
Distinguishing  Sullivan  v.  MissiMippi  ft 


258 


STATUTES,  34. 


It 


.1    I 
Hi  :! 


M.  R.  Co.,  II  Iowa  4ai.-FoLLOWED  in 
Bucklew  V.  Central  Iowa  R.  Co.,  64  Iowa 
603.  Quoted  in  Thomas  v.  Wabash,  St.  L. 
&  P.  R.  Co.,  40  Fed.  Rep.  126,  7  L.  R.  A. 
145.  Reviewed  in  Iowa  R.  Land  Co.  v. 
Soper,  39  Iowa  1 1 2. 

Neb.  Act  of  March  3,  1881,  giving  a  la- 
borer and  material-man  a  lien  upon  a  rail- 
way for  materials  furnished  and  labor  per- 
formed on  such  railway,  docs  not  contain 
more  than  one  subject  and  is  not  in  conflict 
with  the  Constitution.  Kansas  City  &*  O. 
R.  Co.  V.  Frey,  30  Neb.  790, 47  N.  W.  Rep.  87. 

Va.  Act  of  March  21, 1877,  amended  April 
2,  1879,  entitled  "  An  act  to  secure  payment 
of  wages  or  salaries  to  certain  employes  of 
railway,  steamboat  and  other  corporations, 
providing  that  employes  and  persons  fur- 
nishing to  such  companies  supplies,  cars 
and  engines  shall  have  a  prior  lien  on  the 
franchise,  gross  earnings  and  real  and  per- 
sonal property  of  such  companies,  is,  as  to 
the  cars  and  engines,  void,  being  repug- 
nant to  the  Constitution,  art.  5,  §  15,  which 
requires  that "  no  law  shall  embrace  more 
than  one  object,  which  shall  be  expressed 
in  the  title."  Fidelity  I.  T.  &*  S.  D.  Co.  v. 
Shenandoah  Valley  R.  Co.,  38  Am.  &»  Eng. 
R.  Cas.  559,  86  r<i.  i,  13  Va.  L.J.  309,  9  S. 
E.  Rep.  759. 

(6)  General  incorporation  acts. — Where 
an  act  is  entitled  "  An  act  to  provide  a  gen- 
eral law  for  the  incorporation  of  railroads, 
and  to  regulate  the  same,"  its  object  is 
single,  being  to  provide  a  general  law  for 
the  incorporation  of  railroads,  and  the 
words  "  and  to  regulate  the  same  "  mean 
only  to  regulate  the  railroads  incorporated 
under  the  act.  Therefore,  where  it  is  pro- 
vided in  the  body  of  the  act  that  its  provi- 
sions shall  apply  to  railroads  already  incor- 
porated, to  that  extent  it  embraces  more 
than  one  subject-matter,  and  one  not  indi- 
cated by  the  title.  Augusta  City  Council  v. 
Port  Royal  Sf  A.  R.  Co.,  74  Ga.  658. 

Section  38  of  Ind.  Act  for  the  incorpora- 
tion of  railroad  companies  is  constitutional, 
its  provisions  being  matter  properly  con- 
nected with  the  subject  of  the  title  of  such 
act  within  the  meaning  of  the  state  Const, 
art.  4,  §  19.  Shipley  v.  Terre  Haute,  4  Am. 
6-  Eng.  R.  Cas.  345,  74  Ind.  297. 

Mich,  amendatory  Act  of  1867,  p.  107.  §66, 
to  the  general  railroad  law,  is  not  unconsti- 
tutional for  the  reason  that  its  object  is  not 
sufficiently  expressed  in  the  title.  Although 
the  title  is  not  as  specific  as  might  be  desir- 


able, it  cannot  be  said  that  it  does  not  ex- 
press the  object  of  the  law.  Sivartwout  v. 
Michigan  Air  Line  R.  Co.,  34  Mich.  389,  4 
Am.  Ry.  Rep.  63. 

An  act  "  to  revise  the  laws  providing  for 
the  incorporation  of  railroad  companies" 
does  not  violate  the  constitutional  require- 
ment that  the  object  of  every  law  shall  be 
expressed  in  its  title,  if  it  includes  the  sub- 
stantial  provisions  of  a  former  law  imposing 
a  liability  upon  railway  companies  for  in- 
juries resulting  from  neglect  to  fence  the 
track.  Continental  Imp.  Co.  v.  Phelps,  ^J 
Mich.  299,  II  A^.  IV.  Rep.  167. 

An  act  entitled  "An  act  to  revise  the 
laws  providing  for  the  incorporation  of  rail- 
road companies,  and  to  regulate  the  running 
and  management  and  to  fix  the  duties  and 
liabilities  of  all  railroad  and  other  corpora- 
tions owning  or  operating  any  railroad  in 
this  state,"  is  not  unconstitutional  on  the 
ground  that  the  title  provides  for  more 
than  one  object,  its  object  being  to  bring 
together  the  legislation  concerning  the  crea- 
tion and  management  of  railroads.  Toledo, 
A.  A.  &•  G.  T.  R.  Co.  V.  Dunlap,  5  Am.  &* 
Eng.  R.  Cas.  378,  47  Mich.  456,  11  N.  W. 
Rep.  271. 

An  act  whose  title  is  "  An  act  to  provide 
for  the  formation  of  certain  corporations 
under  general  laws  "  is  sulHciently  expres- 
sive of  the  subject  of  the  act,  which  em- 
braces powers  given  to  corporations  formed 
thereunder,  including  the  power  to  certain 
corporations  to  build  connecting  railroads 
and  other  means  of  transportation.  Ex  parte 
liacot,  50  Am.  &*  Eng.  R.  Cas.  597.  36  So. 
Car.  125,  15  S.  E.  Rep.  204.— Distinguish- 
ing Connor  v.  Green  Pond,  W.  &  B.  R.  Co., 
23  So.  Car.  427. 

The  title  of  an  act,  which  is  "  An  act  to 
provide  for  the  incorporation  of  associations 
that  may  be  organized  for  the  purpose  of  con- 
structing railroads,  maintaining  and  operat- 
ing the  same;  for  prescribing  and  defining 
the  duties,  and  limiting  the  powers  of  such 
corporations  when  so  organized,"  suffi- 
ciently indicates  that  provisions  in  the  act 
apply  to  existing  railroad  corporations, and, 
therefore,  section  37  of  the  act  is  not  uncon- 
stitutional, the  act  not  embracing  more 
than  one  object,  the  regulation  of  all  rail- 
road corporations,  and  that  object  being 
sufficiently  expressed  in  the  title.  Chtsa- 
Peake  &*  O.  R.  Co.  v.  Patton,  9  W.  Va.  648. 

(7)  /urisdtttion.—The  title  of  Tex.  Act  of 
March  21.  1874,  -  An  act  to  fix  the  jurisdic- 


m^ 


STATUTES,  34. 


259 


tion  in  certain  cases,"  sufficiently  expresses 
tlic  object  of  the  first  section  of  said  act  in 
enacting  "  tliat  liercafter  any  public  or  pri- 
vate corporation,  including  railroad  com 
panics,  *  *  *  may  be  sued  in  any  court  in 
this  state  having  jurisdiction  of  the  sub- 
ject-matter, and  in  any  county  where  the 
cause  ol  action  or  part  thereof  accrued,  or 
in  any  county  wiicre  such  corporation  lias 
an  agency  or  representative,  or  in  the  county 
in  which  thepii^ripal  office  of  such  corpo- 
ration is  situated."  Beens.  Texas&*P.  /i- 
Co.,  44  Tex  302.- Reviewed  in  Houston 
&  T.  C.  R.  Co.  V.  Graves,  50  Tex.  181. 

The  above  act  is  operative,  and  is  the 
law  of  the  state  as  to  venue  in  such  cases. 
Jireen  v.  Texas  &^  /'.  A".  Co.,  44  Tex.  yn. 

(8)  Killing  or  injnriiit^  live  stock. — The 
title  ol  an  act  was  as  follows  :  "  An  act  to 
require  the  section-masters  of  railroads  to 
give  notice  of  the  killing  or  injury  of  live 
stock  by  the  trains  or  locomotives  of  rail- 
roads in  Tennessee  ;  to  provide  for  the  ap- 
pointment of  appraisers  to  ascertain  and  fix 
the  value  of  such  stock,  or  the  amount  of 
injury  thereto,  and  to  provide  for  the  collec- 
tion of  such  appraisements ;  to  make  railroad 
companies  liable  for  all  damages  by  reason 
of  the  killing  or  injury  of  live  stock  upon  or 
near  their  unfenced  tracks  by  their  moving 
trains,  cars,  or  engines."  Held,  that  the 
subject  of  the  act  is  fully  expressed  in  the 
last  clause.  The  preceding  clauses  of  the 
title  were  unnecessary,  but  embracing  only 
particulars  germane  to  and  included  in  the 
general  subject  expressed  in  the  last  clause, 
they  do  not  vitiate  the  title  or  the  act. 
Illinois  C.  R.  Co.  v.  Crider,  91  Tenn.  489, 19 
5.  W.  Rep.  618. 

(9)  Municipal  subscriptions. — An  act  was 
entitled  "  An  act  to  autiiorize  the  city  of 
Quincy  to  create  the  indebtedness  referred 
to  in  the  twenty-fourth  section  of  the  sched- 
ule of  the  Constitution,  to  provide  for  the 
payment  thereof,  and  validating  acts  of  said 
city  relating  thereto."  The  act  authorized 
the  city  to  subscribe  to  the  capital  stock  of 
a  railroad  company,  and  to  issue  evidences 
of  indebtedness  therefor.  Held,  that  the 
nature  and  true  scope  of  the  act  were  indi- 
cated by  the  title,  and  that  was  sufficient. 
Quincy,  M.  &*  P.  R.  Co.  v.  Morris,  84  ///. 
410,  16  Am.  Ry.  Rep.  494. 

The  fourth  section  of  III.  Act  approved 
March  4,  1869,  entitled  "  An  act  to  incorpo- 
rate the  Dixon  &  Quincy  R.  R.  Co. ,"  assumes 
to  confer  on  townships  power  to  subscribe 


to  the  capital  stock  of  or  to  make  donations 
to  said  company,  and  provides  for  elections 
to  decide  as  to  such  subscriptions  or  dona- 
tions, for  taxation  for  the  payment  of  the 
same  if  voted,  and  for  the  issue  of  bonds  to 
represent  the  same,  etc.  Held,  that  the  sec- 
tion does  not  embrace  a  subject  not  ex- 
pressed in  the  title  of  the  act,  withm  the 
meaning  of  the  Constitution  of  1848,  declar- 
ing that  "  no  private  or  local  law  shall  in* 
elude  more  than  one  subject,  and  that  shall 
be  embraced  in  the  title,"  and  is  therefore 
not  unconstitutional.  The  provisions  in 
such  section  are  so  far  germane  to  the  sub- 
ject expressed  in  the  title  as  to  be  fairly 
embraced  therein.  Abington  v.  Cabeen,  12 
Am.  <5-  Eng.  R.  Cas.  581,  106  ///.  200.— Ap- 
proving San  Antonio  v.  Lane,  32  Tex.  405. 
Disapproving  Giddings  v.  San  Antonio, 
47  Tex.  548 ;  San  Antonio  v.  Gould,  34  Tex. 
49.  Explaining  Middleport  v.  Xxwa  Life 
Ins.  Co.,  82  111.  562  ,  Welch  v.  Post,  99  111. 
471.  Quoting  Schuyler  County  Sup'rs  v. 
People  ex  rel.,  25  111.  181  ;  O'Leary  v.  Cook 
County,  28  111.  534;  Phillips  v.  Covington 
&  C.  Bridge  Co.,  2  Mete.  (Ky.)  219.  Re- 
viewing Belleville  &  I.  R.  Co.  v.  Gregory, 
15  111.  20;  Firemen's  Benevolent  Assoc,  v. 
Lounsbury,  21  111.  fit. 

Kentucky  Act  of  Feb.  3,  1869,  is  entitled 
"  An  act  to  amend  the  charter  of  the  Shel- 
byville  railroad  coiupany,  and  to  authorize 
certain  counties  to  take  slock  in  the  same." 
On  March  11,  1870,  this  statute  was  amended 
by  an  act  entitled  "  An  act  to  amend  an 
act  entitled  '  An  act  to  amend  the  charter 
of  the  Shelbyviile  railroad  company,  and 
to  authorize  certain  counties  to  take  stock 
in  the  same.'"  The  body  of  the  statutes 
created  a  railroad  district  out  of  a  county, 
and  authorized  it  to  subscribe  to  stock,  and 
provided  for  a  vote  of  the  people,  and  the 
manner  of  holding  and  voting  the  stock. 
Held,  that  the  statutes  were  not  unconstitu- 
tional in  not  being  sufficiently  expressed  in 
the  title.  Kreiger  v.  Shelby  R.  Co.,  84  Ky. 
66  i  writ  of  error  dismissed  for  want  of 
jurisdiction  in  125  U,  S.  39,  8  Sup.  CI.  Rep. 
752. 

The  title  of  an  act  was  "  An  act  to  facilitate 
the  construction  of  the  New  York  &  Oswego 
Midland  railroad,  and  to  authorize  towns  to 
subscribe  to  the  capital  stock  thereof ";  and 
the  provisions  of  the  statute  gave  effect  to 
the  objects  and  purposes  disclosed  in  the 
title.  Held,  that  it  was  not  a  violation  of 
the  constitutional  prohibition,  however  nu- 


260 


STATUTES,  34. 


1.   <-. 


merous  or  various  its  provisions  iniyht  be. 
Ptopie    X  rel.  v.  Morgan,  6$  Barb.  (N.  Y.) 

Wesv  Virginia  Act  of  February  25,  1870, 
authorizing  pluintif!  company  to  extend  iti 
road  througli  defendant  county,  and  autlior- 
izing  the  county  to  subscribe  to  the  capital 
stock  of  the  railroad,  is  not  repugnant  to  a 
provision  in  the  state  Constitution  that  no 
law  shall  embrace  more  than  one  object, 
which  shall  be  expressed  in  the  title.  lUil- 
timore  &*  0.  A'.  Co.  v.  Jeffenon  County.  29 
Fed.  Rep.  305. 

(10)  Street  railways.  —  Georgia  Act  of 
Sept.  3,  1887,  entitled  "An  act  to  amend  an 
act  establishing  a  new  charter  for  the  city 
of  Atlanta,"  contained  a  provision  that 
street  railroads  might  be  required  to  pave 
a  certain  portion  of  the  streets  on  which 
their  tracks  were  laid.  Held,  that  this  pro- 
vision was  not  inconsistent  with  the  title  of 
the  act  so  as  to  make  it  unconstitutional. 
Atlanta  v.  Gate  City  St.  li.  Co.,  80  Ga.  276, 
4  S.  E.  Rep.  269.  -Quoting  Hope  v.  Mayor, 
etc.,  of  Gainesville,  72  Ga.  248. 

N.  Y.  Act  of  1874,  ch.  448,  entitled  "  An 
act  for  the  relief  of  Park  Avenue  railroad 
company,  in  the  city  of  Brooklyn,  and  to 
authorize  the  extension  of  its  tracks  throu<;h 
certain  streets  and  avenues  in  said  city," 
expresses  the  subject  sufficiently  for  the  pur- 
poses of  said  constitutional  provision.  The 
subject,/.^.,  the  relief  of  the  company,  neces- 
sarily includes  provisions  removing  restric- 
tions upon  its  powers  and  giving  it  greater 
powers.  In  re  Prospect  Park  &*  C.  I.  R. 
Co.,  67  N.  Y.  371,  15  Am.Ry.  Rep.  102; 
affirniinf;  8  Hun  30. 

New  York  Act  of  1868,  ch.  842,  entitled 
"  All  act  to  provide  for  the  transmission  of 
letters,  packages  and  merchandise  in  the 
cities  of  New  York  and  Brooklyn  *  *  ♦  by 
means  of  pneumatic  tubes  to  be  constructed 
beneath  tlie  surface,"  is  not  violative  of  the 
provision  of  the  state  Constitution,  art.  3, 
§  16,  prohibiting  the  passage  of  any  local  or 
private  bill  embracing  more  than  one  sub- 
ject, and  requiring  that  to  be  expressed  in 
the  title.  Astor  v.  Arcade  R.  Co.,  w^N.  Y. 
93,  20  .V.  E.  Rep.  594,  22  A^.  K.  S.  R.1,2  L. 
R.A.  789;  affirming  48  Hun  562,  i  N.  Y. 
Supp.  174. 16  N.  Y.  S.  R.  141. 

The  provision  of  the  above  act  authoriz- 
ing the  formation  of  a  corporation  for  the 
purpose  of  carrying  out  its  objects  and  pur- 
poses in  the  manner  specified  in  the  general 
manufacturing   act,  clothing   it  with   the 


{lowers  and  privileges  conferred,  and  irah> 
jecting  it  to  the  duties  and  obligatiunH  im- 
posed by  said  act,  so  far  as  not  inconsistent 
with  the  provisions  of  said  act  of  1868,  is  a 
matter  fairly  embraced  within  the  title,  and 
a  corporation  so  formed  is  an  appropriate 
insi/umeiitality  to  accomplish  the  declared 
purposes.  Astor  v.  Arcade  R.  Co.,  1 13  /V.  Y. 
93,  20  N.  E.  Rep.  594,  22  A^.  Y.  S.  R.  1,  2 
L.  R.  A.  789;  affirming  48  Hun  562,  i  A^.  K. 
Supp.  174.  '6  A^.  Y,  S.  R.  141. 

The  act  of  1873,  ch.  185,  declared  in  its 
title  to  be  "  bupplemental  to  and  amenda- 
tory of  "  said  act  of  1868,  the  title  to  which 
is  quoted,  with  the  addition  of  the  words 
"  and  to  provide  for  the  transportation  of 
passengers  in  said  tubes,"  is  violative  of 
said  constitutional  provision,  as  it  authorizes 
the  construction  of  underground  railways 
by  the  corporation  organized  under  the 
original  act,  with  authority,  upon  obtaining 
the  requisite  consents,  to  propel  its  cars  by 
steam  or  any  other  motive  power,  and  thus 
to  transform  itself  into  a  railroad  corpora- 
tion. Astor  v.  Arcade  R.  Co.,  113  A^.  Y.  93, 
20  A'.  E.  Rep.  594,  22  A^.  Y.  S.  R.  1,2  L.  R. 
A.  789;  affirming  48  Hun  562,  i  A^.  Y,  Supp. 
174,  16  A'.  Y.  S.  R.  141.  Bailey  v.  Xnv 
York  Arcade  R.  Co.,  i  A'.  Y.  Supp.  304,  48 
Hun  621,  16  N.  Y.  S.  R.  1007 ;  ajfirmed  in 
113  A'.  Y.  615,  mem.,  20  N.  E.  Rep.  594,  22 
N.  Y.  S.  R.  I. 

New  York  Act  of  April  11,  1873,  is  en- 
titled "  An  act  to  authorize  the  Bleeckcr 
Street  &  Fulton  Ferry  railroad  compa- 
ny *  *  ***  to  extend  their  railroad  tracks 
through  certain  streets  and  avenues  in  the 
city  of  New  York."  Held,  that  it  was 
proper  under  this  title  to  incorporate  pro- 
visions governing  the  use  and  management 
of  the  road  and  authorizing  the  company 
to  lease  its  road.  Central  Crosstcnun  R.  Co. 
v.  Twenty-third  St.  R.  Co.,  54  How.  Pr.  (N. 
Y.)  168.  —Quoted  in  Gere  v.  New  York 
C.  &  H.  R.  R.  Co.,  19  Abb.  N.  Cas.  (N.  Y.) 

«93- 

An  act  of  the  legislature  entitled  "  An 
act  relating  to  the  Ridge  Avenue  Passenger 
railway  company,"  which  provides  for  the 
consolidation  of  other  companies  under 
that  name,  and  releases  the  new  company 
from  liability  for  keeping  pavements  in  re- 
pair, is  in  conflict  with  the  provision  of  the 
Pa.  Constitution  providing  that  "  no  bill 
shall  be  passed  *  <■  «■  containing  more  than 
one  subject,  which  shall  be  clearly  expressed 
in  the  title."     Ridgi  Avt.  Pass.  R.  Co.  v. 


STATUTES,  34. 


261 


Philadtlphia,  H4  /'"•  St.  aij.  l6  Atl  Rip. 
741  —Reviewed  in  Binghamton  v.  Bing- 
haniton  i  P.  D.  R.  Co..  41  N.  Y.  S.  R.  83. 
61  Hun  479.  "6  N.  Y.  Supp.  «$■ 

Pa.  Act  of  March  8.  1872,  entitled  "An 
act  relating  to  the  Ridge  Avenue  Passenger 
railway  company."  is  unconstitutional  and 
void,  in  so  (ar  as  it  aflects  the  rights  of  the 
city  of  Philadelphia  and  reduces  the  rate  of 
taxation  of  dividends  of  said  company  for 
city  purposes.  Its  title  disclosing  no  intent 
to  alter  the  city's  rights.  Philadelphia  v. 
Ridge  Ave.  R.  Co.,  54  Am.  <&*  Eng.  R.  Cas. 
319.  142  Pa.  St.  484.  2«  A'l-  t^*P'  98'- 

The  title  of  Pa.  Act  of  May  14,  1889, 
providing  (or  the  incorporation  and  govern- 
ment of  street-railway  companies,  is  defect- 
ive, but  perhaps  not  fatally  bad.  Gillttte  v. 
Chester  &*  M.  R.  Co.,  2  Pa.  Dist.  450. 

(11)  Taxation. —  h  corporation,  other 
than  a  railroad  company  paying  taxes  on  its 
gross  receipts,  whose  business  it  is  to  own 
or  possess  railroad  freight  cars,  which  are 
used  and  run  by  railroad  companies  in 
Michigan,  organized  under  its  law's,  in 
.vliose  possession  they  chanced  to  be  from 
v.wc  to  time  for  transporting  freight  from 

jints  within  to  points  without,  and  from 
points  without  to  points  within,  the  state, 
and  paying  for  the  use  thereof  a  definite 
sum  per  mile  for  the  distance  traveled  over 
their  respective  lines,  is  subject  to  be  taxed 
under  Act  No.  152  of  1883.  entitled  "An 
act  to  provide  for  the  taxation  of  persons, 
co-partnerships,  associations,  car-loaning 
companies,  corporations  and  fast  freight 
lines  engaged  in  the  business  of  running 
cars  over  any  of  the  railroads  of  this  state, 
and  not  being  exclusively  the  property  of 
any  railroad  company  paying  taxes  on  their 
gross  receipts."  The  business  so  conducted 
is  within  the  title  of  the  act.  Fargo  v.  Au- 
ditor-General, 22  Aph.  &*  Eng.  R.  Cas,  216, 
57  Mich.  598,  24  N.  W.  Rep.  538. 

Tennessee  Act  of  1877.  ch.  16.  entitled 
"  An  act  declaring  the  mode  and  manner  of 
valuing  the  property  of  telegraph  companies 
for  taxation,  and  of  taxing  sleeping  cars,"  is 
not  unconstitutional  as  embracing  more 
th:in  one  subject  in  its  title.  It  embraces 
only  the  subject  of  taxation,  though  relat- 
ing to  the  taxation  of  two  classes  of  prop- 
erty. Gibson  County  v.  Pullman  Southern 
Car.  Co.,  42  Fed.  Rep.  572. 

(12)  Various  illustrations. — Illinois  Act 
of  May  24.  1877.  entitled  "An  act  to  facilitate 
till-  carriage  and  transfer  of  passengers  and 


property  by  railroad  companies,"  provided 
in  the  body  of  the  act  that  all  companies 
terminating  on  any  navigable  river  border- 
ing the  state  might  own  the  necessary  boats 
to  transfer  their  freights  and  passengers,  but 
withheld  the  privilege  of  condemning  prop- 
erty for  landings,  and  limited  its  application 
to  companies  which  should  own  their  own 
landings.  Held,  that  the  title  was  not  suffi- 
ciently broad  to  include  such  provisions ; 
and  it  was,  therefore,  in  conflict  with  a  pro- 
vision of  the  state  Constitution  that  acts 
should  embrace  but  one  subject,  which 
should  be  expressed  in  the  title.  Thomas 
v.  Wabash,  St.  L.  &»  P.  R.  Co.,  40  F.d.  Rep. 
126,  7  L.  R.  A.  145.  —  Not  fom.owino 
Chicago,  B.  &  Q.  R.  Co.  v.  Iowa.  94  U.  S. 
'S5-  Quoting  McAunich  v.  Mississippi  & 
M.  R.  Co.,  20  Iowa  343. 

Defendant  company  was  sued  for  certain 
levee  or  wharfage  dues,  and  claimed  exemp- 
tion under  Louisiana  resolution  of  March, 
1869,  entitled  "  A  joint  resolution  in  rela- 
tion to  the  New  Orleans,  Mobile  &  Chat- 
tanooga railroad  company,  a  corporatioi. 
of  the  state  of  Alabama."  Held,  that  the 
exemption  claimed  by  the  company  was 
sufficiently  expressed  in  the  title  of  the  res- 
olution to  make  it  valid.  New  Orleans  v. 
New  Orleans,  M.  fi-  C,  R.  Co.,  rj  La.  Ann. 
414. 

Titles  to  statutes  must  embrace  only  one 
object,  under  Mich.  Const,  art.  4,  §  20. 
Held,  that  the  title  "  An  act  in  relation  to 
mortgages  against  preferred  stock  in.  and 
the  delivery  of  goods  by.  railway  com- 
panies," is  not  clearly  in  violation  of  this 
requirement,  as  the  whole  act  concerns  rail- 
ways. Attorney-General  \ .  Joy,  16  Am.  &* 
Eng.  R.  Cas.  643,  55  Mich.  94.  ao  A^.  \V. 
Rep.  806. 

A  statute  entitled  "  An  act  for  the  sale  of 
the  Pacific  railroad,  and  to  foreclose  the 
state's  lien  thereon,  and  to  amend  the 
charter  thereof,"  is  not  in  conflict  with  a 
provision  of  the  Mo.  Constitution  that  "  no 
law  *  *  *  shall  relate  to  more  than  one 
subject,  and  that  shall  be  expressed  in  the 
title,"     Woodson  v.  Murdoch,  22  Wall.  (U. 

S.)  35'- 

New  York  Act  of  March  28,  1850.  "  for 
the  relief  of  the  creditors  of  the  Lockport 
&  Niagara  Falls  railroad  company."  docs 
not  violate  the  provision  of  the  state 
Constitution  declaring  that  "  no  private  or 
local  bill,  which  may  be  passed  by  the  legis- 
lature, shall  embrace  more  than  one  sub- 


STATUTES,  30-38. 


!     !■  i 


il 


ject.  and   that  ihall  be  expressed  in  the 
title."    MosiiT  v.  HMon,  15  Jiari.(N.  V.) 

Neither  does  the  above  act  violate  the 
Constitution,  art.  8,  §  1,  providing  that  "cor- 
porations may  be  formed  under  general 
laws,  liiit  shall  not  be  created  by  special  act, 
except  (or  municipal  purposes,  and  in  cases 
where,  in  the  judgment  of  the  legislature, 
the  objects  of  the  corporation  cannot  be 
attained  under  general  laws."  The  above 
act  does  ncH  create  a  corporation.  Master 
v.  union,  I  s  Hark  (N.  Y.)  657. 

.'Iff.  IClKlit  to  ruitto  qiioHtiuu  of'coii- 
HtltiltloMullty.— Whenever,  in  pursuance 
of  an  honest  and  actual  antagonistic  asser- 
tion of  rights  by  one  individual  against 
another,  there  is  presented  a  question  in- 
volving the  validity  of  an  act  of  any  legisla- 
ture, state  or  federal,  and  the  decision 
necessarily  rests  on  the  competency  of  the 
legislature  so  to  enact,  the  court  must  de- 
tenu'ne  whether  the  act  be  constitutional 
or  not;  but  such  an  exercise  of  power  is  the 
ultimate  and  supreme  function  of  courts. 
It  is  legitimate  only  in  the  last  resort,  and 
as  a  necessity  in  the  determination  of  a 
real,  earnest  and  vital  controversy  between 
individuals.  It  never  was  the  thought  that, 
by  means  of  a  friendly  suit,  a  party  beaten 
in  the  legislature  coidd  transfer  to  Lhe 
courts  an  inquiry  as  to  the  constitutionality 
of  the  legislative  act.  L'hicugo&*G.  T.  K. 
Co.  v.  IVfllman,  49  Am.  &•  Eng.  R.  Cas.  I, 
143  I/.  S.  339,  12  Sufi.  Ct.  R(p.  400;  affirm- 
ing 83  Mich.  592,  47  A^.  W.  Rep.  489. 

Where  the  action  is  between  the  state 
and  a  railroad  company  only,  seeking  to  re- 
strain the  company  from  operating  its  road 
by  the  use  of  steam  (lower,  the  question 
whether  the  statute  which  authorized  such 
steam  power  is  unconstitutiotnl  as  impair- 
ing the  obligation  of  contracts  with  the  ad- 
joining property  owners  cannot  be  raised. 
PtopU  V.  Brooklyn,  P.  «S-  C.  /.  A'.  Co.,  9  Am. 
&•  Eng.  R.  Cas.  454,  89  A^^  K.  75 ;  affirming 
24  //un  529,  mem. 

iW.  Uiiconstltiitionnlity  must  be 
iiiiulo  plainly  to  appear.— A  legisla- 
tive act,  within  the  sphere  of  legisliitive 
power,  and  not  an  encroachment  upon  the 
province  of  some  other  department  of  the 
government,  will  be  upheld,  unless  clearly 
in  conflict  with  some  provision  of  the  Con- 
stitution of  the  state  or  nation,  or  in  viola- 
.  tion  of  some  private  right  thereby  secured. 
IVadswortk  v.  Union  I'ac.  H.  Co.,  $6  Am.  &• 


Eng.  R.  Cas.  145, 18  Colo,  600,  33  Pat,  Rtp. 

$«S- 

No  statute  will  be  pronounced  unconsti- 
tutional unless  clearly  so.  and  every  reason- 
able intendment  will  he  made  to  sustain  it. 
Wells  V.  Missouri  I'ac.  K.  Co.,  1 10  Mo.  386, 
19  J>.  W.  Rep.  530. 

The  supreme  court  of  Texas  will  not  hold 
unconstitutional  the  act  requiring  conduc- 
tors of  passenger  trains  to  stop  not  less  than 
five  minutes  at  each  station,  unless  it  should 
plainly  appear  that  the  vested  charter  or 
other  important  rights  of  the  railroad 
company  were  unduly  prejudiced  thereby. 
Galveston,  H.  &*  S.  A.  R.  Co.  V.  Lt  Gierse, 
51  Tex.  189. 

III.  IXTKRFBITATIOH  AVD  imOT. 
.  In  General 

37.  Ascertain  I  iiK  the  Ief(iitlatlve 
intent.*— The  fact  that  the  Constitution  of 
a  state  uses  the  word  "  privilege "  in  one 
sense  in  one  clause  is  no  evidence  that  it 
is  used  in  the  same  sense  in  every  other 
clause :  and  were  it  used  in  but  one  sense 
throughout  the  Constitution,  it  would  not 
follow  that  the  legislature  used  it  in  the 
same  sense  in  statutes  subsequeatly  passed. 
Even  in  the  same  statute  a  word  is  often 
used  with  distinctly  different  meanings,  the 
courts  giving  to  it  in  each  instance  the 
meaning  which  the  legislature  intended  it 
to  have  in  that  particular  connection.  Louis- 
ville &*  N.  R.  Co.  v.  Gaines,  2  Flipp. 
(U.S.)  621,  3  Fed.  Rep.  266. 

An  act  of  the  legislature,  passed  for  a 
general  pur|)ose,  should  not  be  construed 
as  giving  a  right  to  accomplish  that  pur- 
pose by  a  method  or  plan  which  was  clearly 
not  within  the  contemplation  of  the  legis- 
lature and  unknown  to  it  when  the  act  was 
passed,  and  when  from  the  nature  of  the 
case  and  the  surrounding  facts  it  is  apparent 
that  such  method  or  plan,  if  kwown  at  that 
time,  would  not  have  been  nfrmitted,  with- 
out the  insertion  in  the  act  of  other  and 
additional  provisions  reri'*<>ted  appropriate 
and  necessary  in  view  thereof.  People's 
Rapid  Transit  Co.  v.  DasA.  46  Am.  &*  Eng. 
R.  Cas.  114.  125  N.  Y.  93,  26  A'.  E.  Rep.  25. 
34  A^.  Y.  S.  R.  S9S. 

38.  When  the  language  is  plain 
and  clear  the  letter  of  the  act  niii8t 
govern.— The  state  sold  certain  railroads 

*  Objects  of  the  EiiKllsh  statutes  rcKulating 
railways,  see  note,  29  Am.  &  Eng.  R.  Cas.  59. 


STATUTES,  39-41. 


263 


nconsti- 
r  reason- 
istain  it. 
Mo.  386, 


in  which  it  wai  interested,  (or  1900,000, 
1235,700  beiug  paid  in  cash,  leaving  a  bal- 
ance due  of  $674,300.  By  a  subsequent  act 
it  was  provided  that  the  balance  "of 
1664,300"  should  be  appropriated  to  build- 
ing a  branch  road.  Held,  that,  as  the  lan- 
guage of  the  sutute  was  plain,  the  company 
constructing  the  branch  road  could  not  sue 
and  recover  the  $10,000  difference  between 
the  balance  unpaid  and  the  balance  appro- 
priated to  the  branch  ro;id.  St.  Louis  Sr*  I. 
M.  a:  Co.  v.  C/arJt,  53  Mo.  314,  1 3  Am.  Ry, 
Ktp.  480. 

The  letter  of  a  statute  must  often  yield 
to  its  spirit,  wiiere  the  legislative  intent  is 
manifest.  Thus  section  56  of  New  York 
General  Railroad  Act,  as  amended  in  1854, 
which  apparently  imposes  an  absolute  lia- 
bility on  companies  for  damages  resulting 
from  a  failure  to  fence  their  tracks,  was  con- 
strued to  impose  a  liability  only  where  there 
is  negligence.  Murray  v.  AVrt/  York  C.  K. 
Co.,  3  Abb.  App.  Dec.  (N.  Y.)  339, 4  Keyei  274. 

Where  the  language  of  the  legislature  is 
clear,  the  courts  will  not  look  into  its  mo- 
tive, purpose  or  policy  in  the  enactment  of 
a  law.  The  only  sound  principle  is  to  ap- 
ply the  maxim  ita  lex  scripta  est.  Randall 
V.  Richmond SfD.  R.  Co.,  45  Am.  6-  Eng. 
R.  Cas.  507,  107" A'.  Car.  748,  \2  S.  E.  Rep. 
605. 

UO.  Coii8triiiii(f  two  or  iiioru  pro- 
visloiiH  together.— Where  the  sections 
of  a  statute  must  be  construed  together  as 
dependent  and  not  as  independent  provi- 
sions, the  invalidity  of  one  part  invalidates 
other  parts.  U'adswortli  v.  Union  Pac.  R. 
Co.,  56  Am.  <S-  Eng.  R.  Cas.  145, 18  Colo.  600, 
ZiPac.  Rep.  515. 

Section  2203  of  Ga.  Code,  relating  to  the 
li.-tbility  of  the  principal  for  tho  trespass  of 
the  agent,  must  be  construed  with  section 
2961,  relating  to  torts  committed  by  a  wife, 
child  or  agent,  so  as  to  harmonize  the  two 
and  allow  both  to  remain  of  force  in  the 
cases  to  which  they  apply.  Western  &*  A.  R. 
Co.  V.  Turner,  28  Am.  6-  Eng.  R.  Cas.  455, 
72  Ga.  392,  53  Am.  Rep.  842. 

Tenn.  Code,  §  1 166,  and  subsections  are 
all  one  statute,  and  the  words  "  these  pro- 
visions "  in  §  1 167  have  reference  to  all  the 
subsections  of  g  1166,  and  are  not  limited 
to  subsection  5  in  regard  to  obstructions  on 
the  road.  Louisville  &*  N.  R.  Co.  v.  Gard- 
ner, I  Lea  (Tenn.)  688. 

Subsections  1  and  2  of  g  13  of  14  &  15 
Vict.,  c.  51,  are  distinct  provisions,  passed 


with  different  objects.  The  first  is  to 
compel  the  company  to  fence  in  its  tracic, 
so  that  cattle  may  not  get  upon  it  and 
he  injured  by  the  trains;  non-compliance 
renders  it  liable  (or  any  such  injury,  but 
this  clause  does  not  apply  until  the  railway 
is  in  use.  The  second  is  to  provide  (or 
the  separation,  not  only  of  the  track,  but  o( 
all  lands  taken  by  the  company,  from  the 
lands  o(  adjacent  proprietors,  so  that  the 
latter  may  not  be  subject  to  trespasses  by 
cattle  escaping  (rom  the  company's  lands ; 
this  clause  may  apply  be(ore  the  railway  is 
in  operation,  but  not  until  six  months  after 
the  company  has  taken  the  land  and  has 
been  requested  to  fence  it.  Elliott  v. 
L'ufalo  (S-  L.  H.  R.  Co.,\f>  U.  C.  Q.  B.  389.— 
Followed  in  Ferguson  v.  Buffalo  &  L.  H. 
R.  Co.,  16  U.  C.  Q.  B.  396. 

40.  StatiiteN  111  pari  materia.— 
What  are  known  as  the  stock  laws,  em- 
bodied in  Ga.  Code,  •§§  1449-54,  are  not  in 
pari  materia  with  §§  3033-34,  and  do  not 
modify  or  alter  the  rule  o(  diligence  to  be 
observed  in  the  running  of  trains ;  but  the 
existence  o(  a  stock  law  in  any  locality  is  a 
(act  which  the  jury  may  consider,  in  ascer- 
taining the  amount  o(  care  and  diligence 
exercised  by  each  o(  the  parties  to  the 
transaction,  and  in  apportioning  the  extent 
o(  the  liability  o(  the  company,  i(  any. 
Central  R.  Co.  v.  Hamilton,  33  Am.  6-  Eng. 
R.  Cas.  307,71  G<*-  461. 

Indiana  Act  o(  May  11,  1853,  providing 
(or  the  incorporation  o(  railroad  companies, 
and  the  act  o(  June  18,  1853,  establishing 
a  Code  o(  Civil  Procedure,  were  passed  at 
the  same  session  o(  the  legislature,  and  so 
(ar  as  they  relate  to  the  same  subject-matter 
are  to  be  construed  in  pari  materia,  and 
treated  as  one.  Swinney  v.  Ft,  Wayne,  M. 
&'  C.  R.  Co.,  59  Tnd.  305. 

Where  there  is  no  way  o(  reconciling 
conflicting  clauses  o(  a  statute,  and  nothing 
to  indicate  which  the  legislature  regarded 
as  o(  paramount  importance,  (orce  should 
be  given  to  those  clauses  which  would  make 
the  statute  in  harmony  with  the  other 
legislation  on  the  same  rubject,  and  which 
would  tend  most  completely  to  secure  the 
rights  o(  all  persons  and  parties  affected  by 
such  legislation.  Kansas  Pac.  R.  Co.  v. 
Wyandotte  County  Com'rs,  16  Kan.  587. 

41.  Effect  of  contemporaneous  of- 
fldal  construction.  —  Where  an  inter- 
pretation has  been  placed  upon  a  statute  by 
the  executive  officers  of  the  state  chacged 


264 


STATUTES,  42-4S. 


with  the  duty  of  enforcing  it,  and  said  in- 
terpretation lias  been  acted  upon  by  tliem 
long  enough  to  become  a  rule  of  tlie  de- 
partment, it  will  not  be  disturbed,  unless  it 
it  plainly  against  the  law.  The  rule  applied 
to  the  action  of  the  state  board  of  railroad 
commissioners  in  tonslmins:  a  "car  load" 
ul  cordwuod,  as  used  in  Mu.  Rev.  St.  1879. 
{  833,  to  be  ten  ton?',  instead  of  all  a  car 
can  safely  carry.  A'o ,.'  v.  Kansas  City,  St. 
J.  **  f.  B  R  Co.,  49  Am.  A-  Eng.  A'. 
Qis.  499,  Ml  Mo.  18,  19  5.  ir.  Hep.  54 1. 

The  uniform  recognition,  on  llu;  part  of 
the  officers  of  the  state  government,  of  the 
right  to  file  articles  of  association  of  street- 
railroad  companies  under  the  general  rail- 
road act  of  1850,  and  of  the  leg.ility  of  this 
Kind  of  corporations  thus  fornierl,  is  very 
conai-'erable,  if  not  controlling,  weight  in  the 
interpretationof  said  act.  In  re  Washington 
St.,  A.  **  /'.  A'.  Co.,  4c  Am.  «S-  Eng.  R.  Cas. 
588. 1 1 J  A^.  K.  443.  22  A'-  t^-  '>■«•/•  356.  26  ;\'. 
Y.  S.  H.  504 ;  affirming  52  Hiin  31 1,  23  M 
Y.  S.  R.  444.  5  A'.  Y.  Siipp.  355. 

42.  StntiitcN  ii|i|)limbl«  toull  riiil- 
roiulM  «llk«.— Kan.  Laws  of  1874,  ch.  93, 
entitled  "  An  act  to  define  the  liuhility  of 
railroad  companies  in  cf-rtain  cases  "  (Gen. 
St.  of  1880,  p.  1251).  applies  to  every  rail- 
road company  <>rganize<l  in  this  state  and 
to  every  railroad  company  doing  business 
in  this  state ;  hut  its  provisions  do  not 
include  firms,  partnerships  or  individuals 
having  servants  or  employes  rnnaged  in 
work  upon  the  road  or  trains  of  a  railroad 
corporation,  lieeson  v.  liusenhark,  44' Am. 
&*  Eng.  K.  Cas.  584,  44  h'an.  669,  25  l\u. 
Jiep.  48. 

Ky.  Act  of  March  10,  iJ'54,  for  the  re- 
dress of  injuries  arising  from  tlic  neglect 
or  misonduct  of  railroa<l  companies  and 
others,  is  applicable  to  the  proprietors  of 
any  kind  of  railroad,  whether  impelled  hy 
horse  or  steam  power,  or  whether  con- 
structed with  iron  or  other  kind  of  rails. 
Johnson  v.  Louisville  t'ily  A'.  Co.,  10  Hush 
(A>.)23i.-DlsriN(;uisiiiN<i  Louisville  A  I*. 
R.  Co.  7'.  L'iuisvil'"  City  U.  ("o.,  2  I)uv.  175. 

Tex.  Kcv.  St.  art.  4278,  as  originally  en- 
acted, dul  not  apply  to  urban,  suburban 
and  belt  railways.  As  amended  April  8, 
1889  (Gen.  Laws  1889,  p.  21).  it  applies  to 
a'l  railways.  Mayor,  elf.,  of  llomlon  v, 
Houston  H.  &*  M.  l\  A".  Co.,  84  Tex.  581,  19 
S.  VV.  Rep.  786. 

43.  HtiitiitcH  not  ii|»|>liculil»  to  nil 
rallruuiln.— I'a.  \ci  of  l-'eb.  16.  1849,  §19, 


does  not  apply  to  passenger  railways  whose 
charters  do  not  limit  the  time  for  complete 
ing  their  roads.  Philadtipkia  v.  Thirtttnth 
&*  F.  St.  Pass.  A'.  Co.,  8  PAtta.  (Pa.)  648. 

The  Railway  Act  of  1868,  D.,  §  20,  sub- 
sec.  4,  gives  an  action  against  certain  rail- 
way companies  for  neglect  to  carry  goods, 
etc ,  but  the  act  does  not  apply  to  the 
Great  Wt^stern  Railway  Co.,  the  defendants. 
By  34  Vi:t.,  c.  43  D.,  §  54,  this  subsection 
is  amended  by  .idiiing  thereto  the  words 
"  Prom  which  action  the  company  shall 
not  be  relieved  by  any  notice,  condition,  or 
declaration  if  the  damage  arises  from  any 
negligence  or  omiss!i>n  of  the  company  or 
of  its  servants."  By  section  7  "  the  pro- 
visions of  this  act"  are  made  applicable  to 
every  railway  company.  I/eM,  tliat  the  sub- 
section of  the  earlier  act  as  thus  amended 
did  not  apply  to  defendants;  but  that  the 
effect  of  the  later  act  was  merely  to  add  the 
newly  enacted  words  to  the  subsection,  and 
"the  provisions  of  this  act"  therefore  did 
not  include  the  amendment.  Al/an  v.  Great 
IVfsti-rn  R.  Co.,  33  U.  C.  Q.  B.  483.- Dis- 
TlNdinsHKi)  IN  Sc'iiett  v.  Great  Western 
R.  Co.,  41  L.  C.  i}.  B.  211. 

44.  A<'tM>|»ttiiic«>  of  net  coiirerriii|r 
|>rlvili>K<^  or  iM'iioHt.— An  act  passed  in 
1864  (Mo.  Scss.  Act,  p.  478)  authorized 
several  railroad  companies  to  connect  their 
lines,  and  for  that  purpose  granted  them 
certain  privdcges.  No  time  was  prcscril)ed 
within  which  the  companies  should  accept 
the  act.  Thcconnertiim  was  m.ide  in  1873. 
Held,  that  this  was  an  acceptance  of  the 
act,  and  that  the  acceptance  was  in  time. 
Atlantic  «3-  P.  A'.  Co.  v.  .S7.  Louis,  66  Mo. 
228 ;  rerersing  3  Mo.  App.  315. 

The  trust  cre.ued  by  Texas  statute  of 
Dec.  19,  1857,  relating  to  the  administration 
<  /  the  assets  of  sold-out  railroads  by  con- 
tinuing the  directors  of  the  road,  is  to  be 
exercised  collectively,  and  not  as  to  Individ- 
tials.  So  where  there  are  ten  trustees,  or 
directors,  a  sale  of  property  under  a  judg- 
ment had  upon  a  citation  served  on  oidy 
two  of  the  ten  is  inofKrative  as  to  pntperty 
not  in  the  control  of  the  two.  tfithfrspoon 
V.  Te.vas  Pac.  R.  Co.,  48  Tex.  309, 

45.  Itiilo  or  Htrii't  coiiNtriirtion.— 
Railway  and  canal  acts  are  to  he  con- 
strued strictly  against  the  parties  obtaining 
tlirm,  and  liberally  in  favoi  of  the  public. 
P.irker  V.  Great  Western  R.  Co.,  t  Raihtu 
Cas.  503.  Slourhriitge  Canal  Co.  v.  W/iieUj 
2  Z/.  **  Ad,  792,  I  Ry.  &>  C.  T  Cas.  23. 


,:l  fi 


STATUTES,  4<l  48. 


265 


Where  an  act  of  parliament  confers  upon 
a  landowner  a  private  right  creating  a 
burden  upon  a  railway,  and  restraining  the 
directors  from  regulating  the  traffic  so  as 
best  to  accommodate  the  public,  it  must  he 
construed  strictly.     Turner  v.  London  &*  S. 

IV.  A'.  Co.,  L.  R.   17  Eq.  561.  43  ^-  /  <^*- 
430,  2  Ay.  6-  C.  T.Cai.  21. 

In  the  construction  of  statutes  made  in 
favor  of  corporations  or  particular  persons, 
and  in  derogation  of  common  right.  c^'C 
should  be  taken  not  to  pxtend  them  beyoii  1 
their  express  words  or  their  clcnr  impfjr'.. 
Mayor,  etc.,of  Macon  v,  Macon  &*  II'.  A'.  Co., 
7  da.  221.— Revikwku  in  Central  R.  Co. 

V.  Collins,  40  Ga.  582. 

Charters  arc  to  be  construed  most  favor- 
ably to  the  slate,  and  in  grants  by  the  public 
notliing  passes  by  implication.  Under  the 
above  rule  of  construction  Maryland  Act  of 
1831,  ch.  330,  §  8,  which  authorized  plaintiff 
company  to  build  a  road  from  Baltimore  to 
Washington  city,  and  which  expressly  re- 
served the  right  to  the  state  to  incorporate 
another  company  for  ihe  same  purpose,  if 
plaintiff's  road  was  not  fonjpletcd  wiiliin  a 
specified  time — AM,  not  to  constitute  a  con- 
tract, by  implication,  upon  plaintiff  building 
i'.s  road,  which  would  prohibit  the  state 
fromauthorizingthcconstruction  of  another 
road  between  said  cities.  Baltimore  &*  O. 
A\  Co.  V.  S/a/e.  45  M,/.  596. 

Words  and  phrases  in  a  statute,  confer- 
ring upon  a  corporation  its  franchises  and 
special  privileges,  which  arc  ambiguous  or 
admit  of  different  meanings,  must  receive 
that  construction  which  is  most  favorable 
to  the  public.  People  v.  liroaJway  A'.  Co., 
48  //w.  &^  Kiii;.  A".  Cas.  692,  126  A'.  J'.  29, 
26  Ahh,  A'.  Cas.  407,  26  A'.  E.  Ki-p.  961,  36 
A^.  Y.  S.  R.  376;  rnhrsini;  56  ////«  45,  29 
A'.  )'.  S.  h\  343,  9  A'.  1'.  Supp.  6. 

Where  it  is  alleged  that  an  act  of  the 
legislature  or  of  a  mimicipality  granting  a 
franchise  to  a  corporation  creates  an  ir- 
revocable contract,  sucli  act  will  be  strictly 
construed  in  favor  of  the  state  or  the 
municipality.  State  ex  rel.  v.  Hilbert,  36 
Am.  $^  Ens-  R.  Cas.  118,  72  Wis.  184.  39  A^. 
W.  Rep.  326. 

40.  I*«>iinl  Ktntiitcs  —  Strict  coii- 
Htriiction.-III.  Rev.  St.  ch.  114,  §88,  re- 
quiring companies  to  stop  thcit  trains  at  all 
stations  advertised  as  places  for  receiving 
or  discharging  p.issengcrs,  is  a  penal  statute, 
and  must  be  strictly  construe<l  ;  and  to 
warrant  the  imposition  of  the  pnnishinent 


or  fine  provided,  the  proof  must  bring  the 
accused  company  clearly  within  the  pro- 
visions of  the  law.  Courts  have  no  p<jwer 
to  extend  such  enactments  to  cases  not 
clearly  within  their  terms;  nor  can  usage  or 
custom  be  held  to  <;xtend  the  terms  of  a 
penal  statute.  Lake  Erie  &*  W.  R.  Co.  v. 
People,  42  ///.  App.  387. 

The  proviso  in  the  Maryland  Act  of  1835, 
ch.  395,  §  5,  "  that  if  the  said  Biiltimore  & 
Ohio  railroad  company  shall  not  locate  the 
said  road  in  the  manner  provided  for  in 
this  act,  then,  and  in  that  case,  they  shall 
forfeit  $1,000,000  to  the  state  of  Maryland, 
for  the  use  of  Washington  county,"  though 
assented  to  by  the  company,  does  not  con- 
stitute a  contract,  but  a  penalty,  subject,  as 
to  its  enforcement,  to  the  will  and  pleasure 
of  the  legislature.  State  v.  ttaltimore  «J*  O. 
R.  Co.,  12  GillSfJ.  (Md.)  399. 

Where  a  statute  is  penal,  "  it  should  be 
strictly  construed,  and  so  as  not  to  enlarge 
the  liability  it  imposes  ;  norallowa  recovery 
tmless  the  party  seeking  it  brings  his  case 
strictly  within  the  terms  or  conditions 
authorizing  it."  State  v.  Chicago,  R.I.&*P 
R.  Co.,  19  Mo.  App.  104. 

Tex.  Act  of  May  6,  1882,  as  to  railway 
companies,  is  a  penal  statute.  In  the  first 
section  it  declares  certain  aci:t  to  be  unlaw- 
ful ;  in  the  second,  if  enjoins  a  duty ;  and  in 
the  third,  it  prom.  1  <  •  n  against  the  railway 
company  a  penalty  fot  violating  the  previous 
sections.  In  the  shipper's  interest  the  act 
is  remedial.  Schloss  v.  Atchison,  T.  &*  S.  F. 
R.  Co.,  85  Te.v.  601,  22  .S'.  rr.  Rep.  1014.— 
Foi.i.owiNc.  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Dwycr,  84  Tex.  198. 

47.  ItoiiMMlial  NtatiititN.  —  A  statute 
which  yives  to  a  person  injured  a  remedy 
for  the  injury  against  the  person  injuring, 
and  limits  the  recovery  to  the  amount  of 
loss  sustained,  or  to  cumulative  damages,  as 
compensation  for  the  injury,  is  a  remedial, 
not  a  penal,  statute.  Hence  Conn.  Gen.  St. 
§  3554  is  a  remedial  statute,  and  an  action 
on  it  may  be  sustained  in  Rhode  Island. 
Gardner  v,  ^\^^v  Vork  <S-  A'.  E.  R.  Co.,  17 
A'.  /.  790,  24  Atl.  Rep.  831.  — DlsTiN(;uisH- 
INO  O'Reilly  v.  New  York  &  N.  E.  R.  Co., 
16  R.  I.  388. 

48.  I^pcciul  autH.— Powers  conferred 
on  a  railway  company  by  a  S|)ccial  act  ot 
the  legislature  arc  not  a(Terte<l  by  a  subse- 
quent act  giving  in  general  terms  to  other 
persons,  for  anotlier  pultlic  purpose,  incon- 
sistent  powers.     London  &*   /I.    R.   Co.  v 


STATUTES,  49-58. 


I 


Limehouse  Dist.  Board  of  Works,  3  Kay  Sf 
J.  123.  z6  L./.  Ch.  164. 

Where  a  special  ;ict  authorizing  the  forma- 
tion of  a  railway  provides  that  liic  rompany 
shall  be  liable  to  pay  to  certain  c.inal  com- 
panies, which  would  be  injured  l)y  the  pro- 
posed road,  a  certain  price  per  siiarc  fur  all 
their  shares  "  from  and  immediately  after 
the  opening  of  a  railway "  between  the 
points  proposed,  the  opening;  for  public  use 
of  any  portion  of  the  line  between  such 
points  renders  the  railway  comi);iny  liable 
to  pay  for  the  canal  shares.  Uritiithani 
Canal  Co.  v.  Ambergalc,  X.  &"£.&•  li.  J. 
R.  Co..  It,  /to:  991,  21  /,./•  Q-  If-  322. 

Construction  (jf  a  spei  iai  act  as  to  whether 
the  line  vested  and  rent  became  due  on 
completion  of  any  part  or  only  on  com- 
pletion of  the  whole  line.  Edinburgh  &*  C7. 
/'.  Co.  V.  Slirh'nx  &*  D.  A'.  Co.,  15  .SV.  Sfss. 
Cut.  {2<i  Series)  48.  2  />.  &*  C.  T.  du.  21. 

Powers  conferred  upon  a  railway  company 
by  a  special  act  to  widen  a  branch  railway 
and  to  buiiii  .niditional  stations  in  London 
are  not  controlled  by  a  later  statute  (the  Me- 
tropolis Manairement  Act)  passed  shortly 
after,  establishing  the  distance  required  to 
be  left  between  buildin);s  and  highways. 
London  Sh  Ji.  R.  Cc.  v.  Limehouse  Dist. 
Hoard  of  Works,  3  Kay  &-•  f.  123,  26  /,.  /, 
Ch.  164. 

40.  Private  acts.  —  An  act  of  as- 
sembly authorizing  a  certain  railroad  com> 
pany  to  guarantee  the  bonds  of  any  incor- 
porated company,  in<livi(lual  or  firm  en- 
gaged in  any  manufacture  in  any  county 
through  which  said  railr^iad  company's  line 
may  pass,  is  a  private  .md  not  a  public  act. 
Timlow  V.  Phiiidfiphi,!  &^  R.  R.  Co.,  99  Pa. 
St.  284. 

An  act  which  declares  that  loans  and 
contracts  previously  made  by  any  person 
with  a  particular  corporation  shall  not  be 
deemed  usurious  by  reason  of  the  .  ', /ora- 
tion agreeing  to  pay  more  than  legal  in- 
terest, or  giving  its  bonds  or  evidences  of 
debt  for  more  than  was  ariiially  lent  to  it, 
is  a  private  act.  Handy  v.  Philadelphia  &* 
R.  R.  Co.,  I  Phi/.i   (/',!.)  31. 

Though  the  Ontario  act,  31  Vict.  c.  44, 
relating  to  preferential  bonds  issued  under 
37  Vict.  c.  57,  was  in  the  nature  of  a  private 
act,  it  sufficiently  referred  to  plaintiff  by  re- 
ferring to  the  class  of  bondholders  to  which 
he  belonged,  and  he  was  therefore  bound 
therein',  /ones  v.  Canada  C.  R.  Co.,  46  [/. 
C.  Q.  />'.  250. 


50.  Statutes  declaratory  of  the 
coninioii  law.— The  Tennessee  statutes 
to  prevent  accidents  on  railroads  embody 
no  more  than  the  common  law.  It  never 
was  the  legal  right  of  a  railroad  company 
to  refuse  to  use  all  possible  means  to  stop 
its  train  and  avoid  an  accident  when  any 
person,  animal  or  other  obstruction  ap- 
peared on  the  tr<ick.  East  Tenn.,  V.  &*  G. 
R.  Co.  V.  Humphreys,  15  Am.  &•  Eng.  R. 
Cas.^72,  12  /.rti  {Tenn.)  200. 

51.  Pi'ovImoh.— A  proviso  in  a  statute 
is  generally  intended  to  except  something 
which  would  otherwise  have  been  within 
it.  The  words  "  Provided,  that  nothing  in 
this  act   contained    sb.all   be  construed  to 


exempt  from   taxation 


•    * 


any  prop- 


erty acquired,  or  hereafter  to  be  acquired, 
by  virtue  of  the  charter  of  the  Great 
Northern  railway  company"  are  not  o( 
doubtful  meaning.  They  contain  an  af- 
firmative declaration  that  the  acquisitions 
of  the  company  (the  International  &  G.  N. 
R.  Co.)  through  the  latter  were  not  to  be 
included  in  the  exemption.  Campbell  v. 
Wigfi;ins,  85  Tex.  424,  21  S.  W.  Rep.  599. 

52.  Amniidatury  Mtatiit«8.— Amend- 
atory acts  by  which  the  time  for  com- 
pleting a  railroad  is  extended  and  enlarged 
are  for  the  benefit  of  the  cor[)oratiop,  and 
tliey  are  presumed  to  have  been  passed  for 
the  benefit  of  the  stockholders.  San  An- 
tonio V.  Jones,  28  Tex.  19. 

Roth  Tex.  Rev.  St.  art.  279,  and  amended 
art.  4227,  prescribe  a  penalty  for  the  same 
act,  the  former,  however,  being  applicable 
to  all  carriers  and  the  latter  to  railway  com- 
panies only.  The  intention  of  the  legisla- 
ture, in  the  amended  article  4227,  was  to 
make  a  distinction  as  to  railway  companies 
and  to  affix  a  punishment  for  their  miscon- 
duct in  the  particulars  prescribed,  less  arbi- 
trary in  its  nature  and  better  adju.sted  to 
tlie  wrong  s^ought  to  be  repressed.  It  was  in- 
tended to  cover  the  whole  field  as  to  rail- 
way (ompanies,  and  tr)  lay  down  the  only 
rule  for  a  recovery  against  them  for  the 
particular  wrongs  it  points  out.  St.  Louis 
&*  S  W.  R.  Co.  V.  Kay,  85  Tex.  558,  22  S.  W. 
Rep.  665.— Quoting  Rogers  v.  Watrous,  8 
Tex.  62. 

nil.  KcvIhIiii;  Stat iiteM.— Where  the 
legislature  has  revised  \  statute  after  a  Con- 
stituticm  has  been  adopted,  such  a  revision 
is  to  be  regarded,  pro  Aac  vice,  as  a  new 
enactment,  and  as  a  legislative  construction 
that  the  statute  so  revised  confornM  to  the 


STATUTES,  04-00. 


267 


Constitution;  and  the  courts  should  give 
some  weight  to,  and  rely  with  some  degree 
of  confidence  on,  such  legislative  construc- 
tion. S/.  Louts  &*  5.  F.  A'.  Co.  v.  Ei'ans  &* 
H.  Fire  Brick  Co.,  22  Am.  6*  Et^.  R.  Cas. 
517.  85  Mo.  307. 

2.  Particular  Statutes. 

>4.  StatiitcH  rcgiilatiiifir  Joiut  use 
«»r  trackH.— Mass.  Act  of  1856.  ch.  296. 
provided  ((-r  the  building  of  a  bridge  at 
the  intersection  of  three  radroads  at  a  cer- 
tain plarf  two  of  the  companies  being  au- 
thorized to  1.  wer  their  tracks,  and  the 
other  one  to  raise  its,  so  that  the  others 
might  pass  under,  and  to  change  the  curves 
and  grades  of  certain  highways  and  con- 
ncc'ii.r  tracks;  and  further  directed  that  a 
cer'in  1,1: uon  of  the  work  should  be  done 
by  01.'  >t  the  companies,  under  the  super- 
vision of  a  commissioner  appointed  by  the 
governor,  who  should  apportion  the  cost  of 
the  work  between  the  two  companies.  Held, 
in  an  action  by  one  company  to  recover 
from  the  other  a  just  proportion  of  the  cost 
of  such  work,  that  the  validity  of  the  ap- 
pointment of  such  commissioner  could  not 
be  inquired  into.  Fitchhurg  R.  Co,  v.  Grand 
Junction  R.  &*  D.  Co.,  i  Allen  (Mats.)  552. 
4  Allen  198. 

In  such  case  it  is  no  objection  to  the 
right  of  plaintiff  company  to  r.  aintain  the 
action  that  it  did  not  ask  for  the  consent 
of  county  commissioners  to  make  changes 
in  the  grade  and  conEtruclion  of  the  roads 
of  tiic  two  companies,  or  that  such  consent 
was  given  without  being  asked  for.  Plain- 
tilT  was  expressly  authorized,  and  required 
by  the  statutt.  to  lower  the  surface  of  the 
two  roads  to  the  same  level,  and  upon  a 
true  construction  of  the  statute  the  consent 
of  the  county  commissioners  was  not  neces- 
sary, except  as  to  certain  public  r.nd  private 
passageways  whirli  would  he  aKccted  by  the 
alteration  of  the  railroai-.  I'itclihurg  A*. 
Co.  V.  Grand  Junction  A\  &*  D.  Co. ,  4  Allen 
(Mass.)  198. 

Neither  can  plaintiff  company  be  deprived 
of  its  right  to  recover  a  just  and  fair  pro- 
portion of  the  expense  of  such  work,  tlie 
performance  of  which  is  expressly  imposed 
upon  it  by  statute,  by  the  facts  cither  that 
the  statute  was  enacted  upon  its  peti- 
tion, or  that  the  commissioner  conducted 
himself  with  partiality  toward  plaintifT. 
Fitchburg  A'.  Co.  v.  Irand  function  R.  &* 
D.  Co.,  4  Allen  (Mass.)  198. 


Where  the  charters  of  all  three  of  tlie 
railroad  companies  are  subject  to  altera- 
tion, amendment  or  repeal  at  the  pleasure 
of  the  legislature,  an  objection  that  plain- 
tiff company  cannot  recover  because  the 
statute  under  which  the  work  was  done  is 
unconstitutional,  as  being  in  violation  of  a 
contract,  is  not  well  taken.  Fitckburg  R. 
Co.  V.  Grand  Junction  R.  &*  D.  Co.,  4  Allen 
(Mass.)  198. 

It  is  no  answer  to  an  action  by  a  pas- 
senger against  a  carrier  that  the  negligence 
or  trespass  of  a  third  party  contributed  to 
the  injury;  and  this  rule  is  not  affected  by 
Mass.  Act  of  1851,  ch.  128,  authorizing  cer- 
tain companies,  including  defendant,  to  use 
a  common  track,  and  regulating  the  man- 
ner of  such  use  and  the  liability  for  acci- 
dents on  the  same.  Eaton  v.  Boston  &*  L. 
R.  Co.,  II  Allen  (Mass.)  500.— Referred 
TO  IN  Gilman  v.  Eastern  R.  Co.,  13  Allen 

433- 

nn,  Htatiites  relative  to  brnkenien 
on  traliiH.  —  So.  Car.  Gen.  St.  §  1499, 
which  requires  at  least  one  trusty  and  skil- 
ful brakeman  to  every  two  passenger  cars, 
and  one  to  the  last  car  on  each  freight 
train,  do»  not  apply  to  mixed  trains, 
to  such  trains  the  usual  and  proper  appli- 
ances are  all  that  are  necessary.  Joyner  v. 
South  Carolina  R.  Co.,  29  Am,  <S«»  F.ng.  R. 
Cas.  258,  26  do.  Car.  49,  i  S.  E.  Rep.  52. 

ao.  8ta<'.iite8  relative  to  bri<l|;e8.— 
After  the  passage  of  18  Vict.  c.  176,  plain- 
tiff could  not  maiiit;.in  an  action  against 
defendant  company  for  unlawfully  and 
wrongfully  erecting  a  i)ridge  acrois  a  creek, 
and  impeding  the  navigation,  for  the  statute 
expressly  authorizes  such  erection  and  gives 
only  a  right  to  compensation  for  damage 
sustained.  Wismer  v.  Great  Western  R. 
Co.,  17  U.  C.  Q.  B.  510, 

The  (ireat  Western  R.  Co.  is  bound  by 
16  Vict.  c.  $4,  §  5,  to  maintain  in  repair  a 
certain  bridge  which  the  statute  allows  the 
company  to  erect.  Hamilton  &*B,  Road  Co. 
v.  Great  Western  R.  Co.,  17  U.  C.  Q.  B.  567. 

The  above  briflge  forms  part  of  a  road 
leading  into  plaintiff's  road.  Held,  that  the 
loss  of  custom  and  tolls  occasioned  to  plain- 
tiff was  not  sufficient  to  enable  it  to  main- 
tain an  action  against  defendant  for  allow- 
ing such  bridge  to  fall  out  of  repair.  Ham- 
ilton &*  B.  Root  Co.  V.  Great  Western  R. 
Co.,  17  U.  C.  Q.  B.  567.  — I3ISTINOUISHINO 
Strectsville  Plank  Road  Co.  v.  Hamilton  St 
T.  R.  Co.,  13  U.  C.  y.  n.  600. 


268 


STATUTES,  57-60. 


B7.  StatnteH  relative  to  ooiinec- 
tloim,  exteiiHioiiH,  termini,  i't<'.-(ia. 
Art  of  December  ii.  187'.  authorizes  the 
Savannah  «  Than'l-rbolt  company  to  run 
its  railroad  through  the  squares  intersect- 
iiiK  Abercorn  street,  Savannali.  Savannah 
*•  T.  A'.  Co.  V.  M.ivflr,  etc.,  of  Savannah,  4$ 
6'.i.  602,  3  Am.  Ky.  Kep.  36. 

Under  the  New  Jersey  Acts  of  March  24. 
1862,  and  of  April  2,  1873.  concerning  the 
West  Jersey  railroad,  the  legal  terminus  of 
that  road  is  not  its  junction  with  the  tracks 
of  the  Camden  A  Amboy  R.  Co.,  but  a  place 
near  the  Delaware  river.  Slate  ( Weit 
Jiney  K.  Co.,  Pros.)  v.  Kecewfr  of  Ta.ves,  38 
N.f.  I..  299,  13  Am.  h'y.  Ri'p.  50. 

By  Va.  Act  of  April  18.  1853,  and  its  s,  jp- 
plenient  of  April  11.  1862,  authority  is  given 
to  the  Cleveland  &  P.  R.  Co.  to  build  a 
railroad  from  Rochester,  N.  Y.,  to  Pitts- 
burgh. In  re  Cleveland  «S»  P.  A'.  Co.,  a 
Piltsh.  (Pa).  348. 

Pa.  Act  of  April  18,  1853,  authoriz«'s  the 
Pittsburgh  &  Connellsville  R.  Co.  to  make 
its  road  to  the  Maryland  line  and  to  con« 
.,i<(t  it  with  any  road  permitted  by  the  state 
i,:  Maryland.  Baltimore  v.  Pittsburt,'h  S* 
t     v.  Co..  3  Pittib.  (Pa.)  20. 

U^  Viiginia  Act  of  March  6,  1847,  relat- 
ing ,.)  the  extension  of  the  road  of  plain- 
tiit  rompany  to  the  Ohio  river  at  or  near 
W'-^Kiing.  the  company  was  subjected  to 
ti!2  general  act  of  March  11, 1837, regulating 
uie  iacd-pMiition  of  railroad  companies. 
Uy  scctio:  2j  of  the  latter  act,  companies 
were  authorized  to  make  branches  or  lat- 
eral roads  in  any  direction  whatever,  not 
eicecding  ten  miles  in  length.  Held,  that 
the  company  had  authority  to  make  a  con- 
nection with  said  river,  or  any  railroad  ter- 
minaiing  on  the  opposite  side,  at  any  point 
between  said  city  and  the  mouth  of  Grave 
creek,  and  such  coiuiection  need  not  be 
made  .it  said  city  Ihiltimore  &*  O.  N.  Co, 
V.  Whi-eh'nj^,  13  Graft.  (Va.)  40. 

Tlie  st.itute  22  Vict.  c.  116,  §  11,  allows 
the  (iroat  Wostorn  railway  "  to  use  its  funds, 
by  way  of  loan  or  otherwise,  In  providing 
proper  connections,  and  in  promoting  its 
traffir  with  railways  in  the  United  States," 
wlipu  sanctioned  by  two  thirds  of  the  share- 
holders, and  enacts  "  that  the  loan  of  seven 
hundred  and  fifty  thousand  dollars  already 
mndf  by  the  said  company  to  the  Detroit 
4  Milwaukie  railway  company  is  hereby 
declared  to  be  lawful."  Commenial  linnk 
v.  Great  Wnlrrn  A*.  Co.,  22  £/.  C.  Q.  Ii.  233. 


58.  Mtatiiteii  relative  to  heatlnfr  of 

cnrs.— New  York  Act  of  1887,  ch.  616  us 
amended  in  1888,  ch.  189.  requiring  ami 
regulating  the  heatmg  of  cars,  is  a  police 
regulation,  and  is  not  an  infringement  of 
interstate  commerce  or  of  the  federal  Con- 
stitution. People  V.  New  York,  N.  H.  6-  H. 
a:  Co.,  ?.9  JV.  y.  S.  A'.  172.  8  A'.  V.  Supp. 
672,  5  J  Hun  409,  608:  affirmed  in  123  A^.  Y. 
635.  mem.,  2$  A'.  E.  Hep.  953. 

ff».  Statutes  relative  to  liability 
for  iiersoiial  liOurloH.  —  Mass.  statute 
of  1887,  ch.  270,  §  I,  cl.  3,  which  relates  to 
accidents  that  happen  "  by  reason  of  the 
negligence  of  any  person  in  the  service  of 
the  employer  who  has  the  charge  or  con- 
trol of  any  signal,  switch,  locomotive  engine 
or  train  u;  an  a  railroad,"  secrns  chiefly  to 
contemplate  lite  danger  f  "om  a  locomotivtf 
enfine  or  train  as  a  moving  body,  and  to 
prt'vide  against  the  negligence  of  those 
who,  either  wholly  or  in  part,  control  its 
movements.  Thyng  v.  Fitchhurg  P.  Co.,  53 
Am.  &*  linf^.  P.  Cat.  535,  156  Mass.  13.  30 
A'.  E.  Pep.  i69.--DiSTiN<iUisiiiN(;  f.ritfin 
V.  Boston  &  A.  R.  Co.,  148  Mass.  143. 

The  Onl.  Workmen's  Com|>ensation  for 
Injuries  Act,  49  Vict.  c.  28,  applies  to  de- 
fendant company,  notwithstanding  it  has 
been  brought  under  the  oiteration  of  the 
Government  Railways  Act  of  the  Dominion. 
Canada  Southern  P.  Co.  v.  fackson,  1 7  Can. 
Sup.  Ct.  316. 

<H>.  Statutes  relative  to  pontiiiff  of 
hiillutiu  boards.— La.  Act  118  of  1890, 
which  requires  all  railroad  companies 
throughout  the  state  to  put  up  bulletin 
boards  in  a  conspicuous  place,  at  all  regular 
or  way  stations  where  they  have  a  telegraph 
operator,  and  to  keep  posted  thereon  the 
time  of  the  arrival  and  departure  of  all 
regular  trains,  on  pain  of  ^  tine  of  not  less 
than  one  hundred  and  not  more  than  five 
hundred  dollars  for  each  violation  of  its 
provisions,  "  without  just  cause."  "to  be  re- 
covered in  any  court  of  competent  jurisdic- 
tion within  the  parish  where  said  violation 
may  take  place,"  is  not  a  criminal  statute 
in  the  sense  of  the  jurisdictional  articles  of 
the  Constitution  relative  to  the  appellate 
courts  of  the  state ;  and  the  procedure  in- 
dicated for  the  recovery  of  the  fine  imposed 
is  civil  and  not  criminal  in  character.  State 
e.x  rel.  v.  fudges,  43  Im.  Ann.  1 164,  10  Sj. 
Pep  ?.^s. 

0(  such  a  proceeding  the  circuit  couv-ts  of 
appeal  have  appellate  jurisdiction,  nmcl  pro- 


STATUTES,  61-68. 


269 


hibition  will  not  lie  to  restrain  the  judges 
thereof  from  hearing  and  adjudging  such  a 
cause.  State  ex  rel.  v.  Judges,  43  La.  Ann. 
1164,  10  So.  Rep.  253. 

01.  Statutes  relative  to  time  of 
coiiipletioii  of  roiul.— The  time  to  cx> 
tend  and  construct  the  Baliimorc  &  Ohio 
ruilroud  into  and  witiiin  tlic  District  of 
Cohnnbia,  fjiven  by  the  act  of  Congress  <jf 
March  2,  1831,  ch.  84,  was  extended  by  the 
act  o(  February  26,  1834,  cii.  11,  to  another 
period  of  four  years,  lialtimore  &*  O.  It. 
Co.  V.  I'an  Ness,  4  Crunch  {U.  S.)  595. 

If  tlic  act  of  1831  expired  by  the  limita- 
tion contained  in  section  5,  it  was  revived  by 
the  act  of  February  26,  1834  Itallimore  &* 
O.  a:  Co.  v.  I'ttn  AVw,  4  Cnim/t  (If.  S.)  595. 

The  act  of  March  3.  1835,  ch.  38,  is  not 
void  l>ecausc  its  title  niisriTites  the  date  of 
tlie  act  to  which  it  issucpiententary  ;  nor  is 
it  confined  to  tlie  mure  ciiiistiuction  of  tlie 
road,  but  gives  authority  also  to  condemn 
land  for  tlie  use  of  the  coin|)any  ;  nor  is  it 
void  because  its  title  purports  to  be  an  act 
siippletucntary  to  an  act  which  expired  Vy 
its  own  limitation,  it  being  revived  by  a 
siir-<cqucnt  act.  fitiHimore  &»  O.  R.  Co. 
.  » ■  iH  Ness,  4  Criitu/i  ( U.  S.)  595. 

While  a  self-executing  forfeiture  of  the 
charter  rights  of  urban,  suburban  and  belt 
railways  is  not  provided  for,  still  they  arc 
subject  to  the  law.s,  and  conrts  may  annul 
ti'iCir  charters  for  failure  to  observe  the  rc> 
qiilrenicnis  of  tlie  law  and  todischargc  their 
<luty  to  the  public.  Until  such  judicial 
forfeiture  the  charters  leiiMin,  although 
subject  to  forfeiture  proceedings.  Mayor, 
etc.,  of  Houston  v.  Houston  li.  ^  M.  P.  K. 
Co.,  84  Tex,  58 1.  19  .V.  M'.  AV/.  786. 

Under  Tex.  Rev.  St.  art.  4278,  as  amend- 
ed, urban,  etc.,  railway  companies  are  rc- 
rpiircd  within  twelve  months  from  the  date 
of  their  charters  to  complete  a  portion  of 
their  road  and  commence  and  continue  the 
running  of  cars  thereim.  No  self-executing 
condition  of  forfeiture  is  iMi|«>sed  upon  such 
railways.  ,\tiiyor,  etc.,  0/  Houston  v.  Houston 
B.  *•  M.  P.  A'.  Co.,  84  7V.I-.  581,  19  5.  IV. 
AV/».  786. 

<IU.  NtntiitcN  reqiiiriiiir  fuiiceH  iiiid 
i'iiriii  croH.siii|f.s.  -The  statutory  regula- 
tions in  regard  to  fencing  railroad  tracks 
and  the  construction  of  farm  crossings  for 
the  use  of  adjoining  landowners  are  police 
regulations,  in  the  strict  sense  of  that 
term,  and  apply  with  equal  force  to  cor- 
porations whose  tracks  are  already  built  as 


wei!  as  those  thereafter  constructed.  They 
have  reference  to  the  public  security,  both 
as  to  persons  and  to  pro|)erty.  Illinois  C.  R. 
Co.  v.  IVillenborg,  26  Am.  &-  Eng,  R.  Cas. 
358,  117  ///.  203,  7  A'.  /T.  Rep.  698,  57  Am, 
Rep.  862. —Distinguishing  Illinois  C.  R. 
Co.  V.  Bloomington,  76  III.  447 ;  Clialcraft  v. 
Louisville,  E.  &  S.  L.  R.  Co.,  113  HI.  86. 

The  preamble  to  20  Vict.  c.  143,  which 
applies  to  defendant  company  the  clauses  of 
the  Railway  Act  with  respect  to  fences,  has 
not  the  effect  of  extending  its  liability  be- 
yond that  of  other  companies  subject  to  the 
same  provisions.  Wilson  v.  Northern  R, 
Co.,  28  U.  C.  Q.  n.  rj\. 

<WI.  VurioiiM  otlicr  HtatiitcH  con« 
Ht rued.— Ala.  Code,  §§  2313-14,  authoriz- 
ing a  plaintiff  to  establish  the  correctness  of 
his  demand  by  his  own  oath,  where  the 
amount  in  controversy  docs  not  exceed 
$300,  does  not  apply  to  actions  against  cor- 
porations aggregate.  Yonge  v.  Mobile  &^ 
O.  R.  Co.,  31  Ala.  422.— Followed  in  Ala- 
bama &  T.  R.  R,  Co.  7/.  Oaks,  37  Ala.  694. 

The  Western  Pacific  railroad  company 
and  the  Central  Pacific  company  claimed 
certain  bonds  from  the  city  ani  county  of 
San  Francisco,  under  California  Act  of 
April  22,  1863.  Oil  April  4,  1864,  the  legis- 
lature passed  an  act  authorizing  the  board 
of  supervisors  to  comprumis»  and  settle  the 
claim,  b.  virtue  of  which  a  settlement  was 
made  with  the  Central  Pacific  company,  and 
the  cr)mp.iny  released  its  claim  for  $^)oo.ooo 
of  bonds,  and  accepted  bonds  of  the  city 
and  county  10  the  amount  of  $400,000,  and 
the  city  and  county  released  its  right  to 
stock  in  thecomfiany,  and  withdrew  its  sub- 
scription to  the  capital  stock.  Jfeltl,  that 
such  settlement  was  fully  justified  by  tne 
statute,  and  the  city  and  county  was  au- 
thorized to  compromise  with  the  one  com- 
pany without  compromising  with  the  other. 
People  V.  Coon,  25  Cal  635. 

An  act  authorizing  and  empowering  the 
b<jard  in  which  the  corporate  authority  of  a 
city  is  vested  to  convey  to  a  railroad  com- 
pany "  not  to  exceed  five  thousand  acres  of 
the  land  of  the  city,  or  such  parcels  thereof 
as  they  may  deem  advisable,  and  upon  such 
terms  and  conditions  as  they  may  deter- 
mine," even  if  mandatory,  so  far  as  the  act  of 
conveyance  is  concerned,  vests  the  board 
with  discretionary  power  as  to  the  quantity 
to  be  conveyed  and  the  terms  of  the  <on- 
veyance.  S,in  Diego  v.  San  Diego  &*  L.  A. 
R.  Co..  44  Cal,  106. 


970 


STATUTES,  «4. 


Defendant  company  leased  its  ruud  for 
ninety-nine  years,  and  afterwards,  by  Illi* 
nois  Act  of  March  i8,  1869,  the  lease  was 
confirmed,  and  the  lessee  created  a  corpo- 
ration of  the  state.  Defendant  was  sued  for 
the  destruction  of  property  by  fire  coinniu- 
nicated  from  an  engine  of  the  lessee  com- 
pany. Htlil,  that  defendant  was  not 
liable.  St.  Louis,  A.  &*  T.  H.  Ji.  Co.  v.  Bah- 
ley,  18///.  i4//.79. 

La.  Act  of  January  20,  1830,  §  9,  incor- 
porating the  Pontchartrain  railroad  com- 
pany, while  it  grants  to  that  rouipany  a 
privilege  on  vessels  or  other  property  iial)lc 
for  the  cost  of  warehousing',  wliarfa^'c  and 
transpoitution,  imposes  no  personal  liability 
on  the  owner  for  services  rendered  to  a 
steamer  while  cl  <rtercd  to  a  third  person. 
Pontchartrain  Ji,  Co.  v.  Htirnt,  2  La  Ann, 
129. 

The  annual  payment  required  to  be  made 
by  the  Western  railroad  corporation  to  the 
sinking  fund  under  the  act  of  1839,  ch.  9, 
§  3,  determined.  Opinion  of  the  Judges, 
etc.,  5  Mete.  (Mass.)  596. 

By  New  Jersey  Act  of  1854  (Pamph,  L. 
388),  supplementary  to  the  act  entitled  "  An 
act  relative  to  the  Delaware  &  Raritnn 
canal  and  Camden  &  Aniboy  railroad  and 
transportation  companies,"  the  true  intent 
and  meaning  of  the  last  act  are  declared  to 
be  "fully  and  effectually  to  protect,  until 
the  first  day  of  January,  1869,  the  business 
of  said  joint  companies  from  railroad  com- 
petition between  the  cities  of  New  York  and 
Philadelphia."  I/eM,  that  the  grant  of  this 
exclusive  privilege  operated  only  to  protect 
the  through  business  from  city  to  city,  and 
not  between  intermediate  places  and  over 
any  and  every  part  of  the  route  between 
said  cities.  The  franchise  is  exclusive  only 
in  regard  to  passengers  and  merchandise 
transported  over  the  entire  route.  Dela- 
ware &>  K.  Canal  Co.  v.  Camden  &*  A.  Ji. 
Co.,  It  N.J.  Eg.  321. 

N.  H.  Act  of  July  3,  1847,  amending  the 
General  Railroad  Act  of  December,  1844, 
was  intended  to  give  a  remedy  for  injuries 
and  inconveniences  occasioned  by  railroads 
in  altering  or  obstructing  highways,  turn- 
pikes, bridges  and  private  ways,  and  not  for 
other  damages.  Clark  v.  Jioston,  C.  6-  M. 
Ji.  Co.,  24  A'.  //.  114. 

Pa.  Act  of  Feb.  27,  1865.  does  not  au- 
thorize the  appointment  of  railroad  police 
(or  corporations  owning  or  using  street  pas- 
senger railways.    AllinUnun  &*  B,  Jiapid 


Transit  Co.,  1  Pa,  Dist.  430.— Quoting 
Mestonville,  M.  &  V,  Pass.  R.  Co.  v.  Phila- 
del|)hia.  89  Pa.  St.  220.  Rrvikwing  Ship- 
ley i/.  Continental  R.Co.,  13  Phila.  (Pa.)  12S; 
Gyger  v.  West  Philadelphia  Pass.  R.  Co.,  26 
W.  N.  C.  (Pa.)  440. 

Wisconsin  Act  of  March  11,  1859,  merely 
changed  the  name  of  the  "  Fox  River  Val- 
ley railroad  company,"  with  certain  amend- 
ments to  the  company's  charter,  but  did  not 
Licate  a  new  corporation.  Mihuauket  &* 
N.  I.  /'.  Co.  V.  J'ield,  12  Wis.  340. 

The  above  statute  changed  the  name  of 
the  company  to  the  "  Milwaukee  &  Northern 
Illinois  railroad  company,"  and  provi(le<l 
that  all  moneys  received  by  the  corporation 
should  be  faithfully  and  exclusively  applied 
by  the  company  under  the  new  name  to 
the  construction  of  a  certain  designated 
portion  of  its  road.  Held,  that  this  must 
be  understood  as  referring  to  the  road  as 
established  under  the  original  charter.  Mil- 
waukee Sf  N.  I.  Ji.  Co.  V.  field,  12  IVis. 
340. 

That  part  of  a  railroad  charter  which  pro- 
vides for  the  punishing  of  persons  obstruct- 
ing the  trains  of  the  company,  and  which 
empowers  towns  and  villages  to  aid  in  its 
construction  by  issuing  their  bonds,  is  a  pub- 
lic statute,  though  other  portions  of  it  be 
regarded  as  private.  Burhop  v.  Milwaukee, 
21   Wis.  257. 

The  effect  of  37  Vict.  c.  i  j,  was  to  abolish 
the  office  of  chief  engine sr  of  the  Inter- 
colonial railway,  anil  for  work  performed 
and  received  on  or  after  June  1,  1874,  to 
dispense  with  the  necessity  of  obtaining  as 
a  condition  precedent  to  the  payment  for 
the  same  the  certificate  of  said  engmeer  in 
chief,  in  accordance  with  31  Vict.  c.  13.  § 
18.  Isbester  v.  Queen,  7  Can,  Sup,  Ct,  696, 
I  Can,  Exch.  358. 

04.  Iiitorprotation  of  particular 
HtatiitcH,  wordH  aiul  pliraMPH.  —A  law 
for  regulating  "  all  existing  railroad  corpora- 
tions" is  a  general  law,  and  its  operation 
extends  to  and  controls  railroa<ls  incorpo- 
rated alter,  as  well  as  before,  its  passage, 
unless  exception  is  provided  in  their  char- 
ters. Indianapolis  <S^  .SV.  /..  A'.  Co.  v.  Blaik- 
wan,  63  ///.  117,  7  Am.  Ry.  Hep.  56. 

The  word  "owner."  as  used  in  Minn.  Avt 
1893,  ch.  66,  regulating  the  sale  and  redemp- 
tion of  tickets,  includes  all  those  who  operate 
a  radroad  or  steamboat  in  the  transporta- 
tion of  passengers;  as,  for  example,  lessees, 
receivers  and  the  like.     State  v.   Corbett, 


STATUTES,  60,  Oe. 


271 


58  Am.  6»  Ei^.  J?.  Cos.  35.  S7  Afitn.  345. 

59  N.  W.  Rtp.  317. 

An  amalgamation  or  consolidation  of  rail- 
roads impliet  acts  which  reduced  the  com- 
panics  to  a  common  interest;  but  where  one 
makes  a  transfer  of  ail  its  property  for  a 
consideration,  and  becomes  absolutely  ex- 
tincuished,  there  is  no  consolidation,  so  as 
to  make  the  existing  company  answerable 
for  property  in  its  hands  coming  from  the 
otiicr.  So  where  a  company  was  authorized 
by  Missouri  Act  of  1863  to  transfer  and  as- 
sign all  of  its  assets,  rights  and  privileges 
to  another  company,  for  a  nominal  con- 
sideration in  money,  and  upon  assuming  cer- 
tain debts,  wiicrcupon  the  company  should 
cease  to  exist,  the  transferee  company  is 
not  liable  for  the  debts  of  the  otiicr  com- 
pany. Powell  V.  North  Mo,  li.  Co.,  42  Mo. 
63.— Rkviewed  in  Chesapeake, O.  &  S.  VV. 
R.  Co.  V.  Griest,  30  Am.  &  Eng.  R.  Cas.  149, 
85  Ky.  619. 

Tex.  Act  of  July  4,  1887,  was  enacted  for 
the  purpose  of  prescribing  rules  by  which 
the  shipper  would  have  the  right  to  recover 
a  penalty  in  case  the  carrier  failed  to  furnish 
the  cars  at  the  time  specified.  For  such  pur- 
pose the  contract  must  be  made  by  the 
"superintendent  or  person  in  charge  of 
transportation."  This  statute  in  no  way 
limits  the  liability  for  damages  for  breach 
of  a  contract,  in  which  case  it  is  only  neces- 
sary to  show  a  valid  contract  and  tlie  ex- 
tent of  injury  from  its  breach.  McCarly  v. 
GhI/,  C.  5-  S.  F.  A'.  Co.,  79  7V.r.  33,  15  5. 
IV.  Rtp.  164. 

The  concluding  words  of  the  Consoli- 
dated Railway  Act,  §  27,  that  "the  defend- 
ants may  prove  tliat  the  same  "  (lliat  is,  the 
damage)  "was  done  in  pursuance  of  the 
authority  of  this  act  and  the  special  act." 
should  be  read  as  meaning  "  in  the  course 
and  prosecution  of  their  business  as  a  rail- 
way '..ompany,  constituted  in  pursuance  of," 
etc.  May  v.  Ontario  S*  Q.  A.  Co..  26  Am. 
*•  Efff.  A'.  Cas.  337,  10  Ont.  70. 

IT.  XBPIAL,  An  ITI  imOT. 

on.  What  anioisntH  to  a  repeal.  — 

Where  two  statutes  are  passed  at  the  same 
session  of  the  legislature,  relating  to  rail- 
.oad  companies,  if  there  is  an  irreconcilable 
conflict  between  the  two,  the  one  which  is 
the  later  expression  of  the  legislative  will 
must  prevail.  Swinnty  v.  Ft.  Wayne,  M. 
&*  C.  A.  Co.,  S9  JnJ.  205. 


The  Mich.  General  Railroad  Law  of  185$. 
and  the  acts  amendatory  thereto,  were  super- 
seded by  the  General  Railroad  Law  of  1871. 
Continental  Imp.  Co.  V.  Pktips,  47  Mich.  399, 
II  A'.  W.Aep.  167. 

Minn.  Laws  1887,  ch.  10,  §  3,  subd.  a,  be- 
ing a  part  of  an  act  entitled  "An  act  to 
regulate  common  carriers,  and  creating  the 
railroad  and  warehouse  commission  of  the 
state  of  Minnesota,  and  defining  the  duties 
of  such  commission  in  relation  to  common 
carriers,"  is  inconsistent  with  and  so  far 
supersedes  Laws  1887,  ch.  14,  §  1,  known  as 
the  Freedom  of  Traffic  Act,  as  to  operate 
as  a  repeal  of  said  section.  State  ex  rel.  v. 
St,  Paul,  M.  &>  M.  A  Co.,  40  Minn.  353,  42 
V.  IV.  Rep.  21.— Qi;oTlNO  State  ex  rel.  v. 
Chicago,  M.  A  St.  P.  R.  Co..  38  Minn.  281. 
HKrEKKiNU  TO  Railway  Transfer  Co.  v. 
Railroad  &  W.  Commission,  39  Minn.  231. 

The  general  purpose  of  the  general  cor- 
poration and  railroad  laws  of  1855  (Mo. 
Rev.  St.  1855,  chs.  34  and  39),  and  of  the 
general  corporation  law  of  1845,  was  to  con- 
fer certain  powers  and  privileges  and  im- 
pose certain  duties  and  liabilities  in  the 
absence  of  any  stipulations  or  provisions 
inconsistent  with  those  contain  d  in  special 
charters  subsequently  granted.  Where  such 
inconsistencies  occur  in  subsequent  legisla- 
tion, it  must  be  understood  that  previous 
restrictions  were  intended  to  be  removed. 
Scotland  County  v.  Missouri,  I.  &*  N.  R.  Co., 
65  Mo.  1 23. 

The  act  incorporating  defendant  com- 
pany and  authorizing  it  to  extend  its  road 
at  any  time  repeals  the  act  of  1849,  §  19,  as 
far  as.  it  applies  to  that  act.  West  End 
Pass.  R.  Co.  V.  Philadelphia  City  Pass.  R. 
Co.,  10  Phila.  (Pa.)  75. 

Tex.  Rev.  St.  art.  279,  y  jscribing  a  pen- 
ally  against  carriers  for  not  icceiving,  etc., 
freight,  was  ref.^aled  as  to  railways  by  the 
act  of  April  2,  1887,  amending  article  .^227. 
St.  Louis  6-  S.  W.  R.  Co.  v.  A'ay,  85  Tex. 
558.  22  .V.  PV.  Rep.  665. 

06.  Wliat  doeii  not.— Ala.  Act  of  1853, 
"  to  regulate  and  define  the  liability  of  rail- 
road companies,"  does  not  conflict  with  the 
act  of  1850  granting  the  right  of  way 
through  Jackson  county  to  the  Nashville  & 
Chattanooga  railroad  company,  Nashville 
&*  C.  R.  Co.  V.  Peacock,  25  Ala.  229.  — RE- 
FERRED TO  IN  Memphis  &  C.  R.  Co.  v. 
BibI),  37  Ala.  699.  1  Ala.  Sel.  Cas.  630. 

Cal.  Act  o(  April  i.  1878,  g  y,  entitled 
"  Ail  act  to  create  the  otlke  of  coiiiiiii.->:>i<.*iicr 


272 


STATUTES,  67. 


I  1   ,  'wl 


of  transportation,"  is  not  repealed  by  the 
act  of  April  1$.  i88o,  entitled  "An  act  to 
organize  and  define  the  powers  of  the  board 
of  railroad  commissioners."  Dytr  v.  Plactr 
County,  90  Cal.  276.  a;  Pac.  Rep.  197. 

Ga.  Act  of  1869,  repealing  scclion  3  uf 
the  act  of  i8;6,  providing  that  railroad  corn- 
panics  sliould  be  liable  to  their  officers, 
agents  und  employes  fur  injuries  sustained 
by  the  negligence  uf  their  officers,  agents 
and  employes,  did  not  repeal  sections  2054 
and  2980  <jf  the  old  Code  (1863).  Georgia 
R.  «S-  P.  Co.  V.  OaJts,  $2  Ga.  410,  7  Am.  Ry. 

Rep.  143- 

III.  Act  of  1874,  §  8,  relating  to  the  fencing 
and  operation  of  railroads,  docs  not  neces- 
sarily operate  as  a  repeal  of  paragraph  89  (jf 
section  1,  art.  5,  of  the  act  relating  to  cities 
and  villages,  which  gives  a  city  |)ower  to  ex- 
tend any  street,  etc.,  under  or  through  any 
railroad  track,  right  of  way  or  land  of  any 
railroad  company,  and  provides  that  where 
no  cuinpeiisation  is  made  to  such  company 
the  city  shall  resture  such  railroad  track, 
right  of  way  or  Und  to  its  former  state,  or 
in  a  sufTicient  manner  not  to  impair  its  use- 
fulness. Chicago  &*  N.  IV,  R.  Co.  v.  C/ii- 
cago,  50  Am.  &•  Fng.  R.  Cas.  150,  140///. 
309,  29  N.  E.  Rfp.  1 1 09. 

This  paragraph  confers  the  power  on  the 
city  council  to  cx'.end  any  street  across  the 
ra'Iroad  right  of  way.  It  authorizes  the  city 
to  obtain  by  condemnation  the  use  of  a  piirt 
of  the  railroad  ri);ht  of  way,  "  subject  to 
the  rightful  use  of  the  railroad  company 
thereof."  The  provision  which  requires 
the  railroad  company  to  construct  and  main- 
tain the  crossing  does  not  cuiiflict  with  the 
provision  which  authorizes  the  city  t  >  use 
such  crossing  and  specifies  how  such  use 
may  be  obtained.  Chicago  &»  N.  W,  R.  Co. 
v.  Chicago,  50  Am.  &*  Etig.  R.  Cas.  15Q, 
140  ///.  309,  29  iV.  E.  Rep.  1 109. 

The  authority  conferred  on  the  West 
Roxbury  Railroad  Co.,  by  Mass.  Act  of  i8j6, 
ch.  201,  to  construct  and  maintain  a  rail- 
way over  certain  streets  in  West  Roxbury, 
was  not  revoked  or  tepealed  by  the  act  of 
1858,  ch.  38,  §  10.  Dcdham  6-  W.  R.  R. 
Co.  V.  Metropolitan  R.  Co.,  8  Allen  (Mass.) 
279. 

Mich.  Act  96  of  1859,  relating  to  railway 
companies,  was  not  repealed  by  the  implied 
amendment  of  the  General  Railroad  Law 
in  Act  S3  of  1873,  or  by  its  revision  (Act  198 
of  1873),  which  acts  refer  to  companies 
organized  under  the  General  Railroad  Law. 


AttorH*y-GiHiral W.Joy,  \6Am.&*  E^g.  K. 
Cas.  643,  55  Mi(h.  94.  20  A'.  W.  Rep.  806. 

Mo.  Act  of  March  10,  1871,  amending  a 
prior  act  entitled  "An  act  to  faciliute  the 
construction  of  railroads  in  the  state  of 
Missouri,"  was  not  rc|)ealed  by  being  omit- 
ted from  the  Compiled  Laws  of  1879.  Cap* 
Girardeau  County  Court  v.  Hill,  118  C/.  S. 
68,  6  Sup.  a.  Rep.  951. 

N.  Y.  Act  of  1867,  ch.  290,  I  24,  author- 
ized certain  towns  to  "  widen,  make,  extend 
and  improve  a  highway  in  said  towns,"  and 
further  provided  that  no  railway  or  tram-- 
way  should  l)e  laid  thereon,  except  where  it 
might  cross  the  same.  Jlelil,  that  the  pro- 
visions uf  this  act  were  not  inconsistent 
with  the  act  of  1884,  ch.  252,  providing  gen- 
erally for  the  construction,  extension,  main- 
tenance and  ui)cration  of  street  railroads, 
and  providing  that "  all  actf.  and  parts  of  acts 
*  *  *  inconsistent  with  this  act  are  here- 
by repealed."  Harlem  liridge.  At.  &*  F. 
R.  Co.  V.  Southern  Boulevard  R.  Co.,  41 
Hun  553,  3  .V.  Y.  S.  R.  316. 

Pa.  General  Borough  Law  of  April  3,  i8$i, 
does  not  repeal  the  act  of  June  13,  1836, 
authorizing  the  court  of  quarter  sessions  " 
lay  out  private  roads.  Private  Road  in 
Huntingdon  liorough,  149  Pa.  St.  133, 24////. 
Rep.  189. 

Pa.  Act  of  April,  1851,  allowing  the  per- 
sonal representatives  of  a  deceased  party  to 
prosecute  suit  for  injuries  to  the  iierson 
by  negligence  or  default,  is  not  repealed 
by  the  act  of  April  26,  185;,  so  far  as  to 
affect  proceedings  under  it  before  the  pas- 
sage of  the  latter  act.  Conroy  v.  Pennsyl- 
vania R.  Co.,  I  Pittsb.  (Pu.)  440. 

A  general  statute  does  not  repeal  a  prior 
special  one  on  the  same  subject,  unless  the 
rc|)eal  be  express,  or  the  general  act  be  in 
direct  conflict  with  the  special  one.  So 
where  a  railroad  charter  provides  a  method 
of  condemning  land,  it  is  not  repealed  by  a 
subsequent  general  incorporation  act,  unless 
it  comes  within  the  above  rule.  Cascades 
R.  Co.  v.  So/iMs,  I  IVash.  T.  557  — yu'>i- 
I  NO  Corbett  v.  Territory,  I  Wasli  T.  431. 
Kevikwing  Clarkson  v.  Hudson  Uver  R. 
Co.,  12  N.  Y.  304. 

07*  liiiplicil  repeal.— Colo.  Gen.  St. 
eh.  93,  §  15,  required  railroad  companies  to 
give  to  the  clerk  of  the  county  notice  of  a 
station  at  which  a  book  would  be  kept  for 
entering  a  d<*^cription  of  animals  killed  by 
the  road.  This  section  wasaineiidcd  by  the 
act  of  March  31,  1885,  from  which  the  pro- 


STATUTES,  08. 


273 


vision  requiring  sucli  notice  was  omitted. 
Htld.  tliat  tlie  provision  of  tlic  general  stat- 
utes was  tliereby  repealed.  Denver  &*  A*.  G. 
R.  Co.  V.  CrawftnJ,  ii  Colo.  598,  19  Pae. 

Rep.  673. 

It  is  provided  by  Conn.  Gen.  St.  §  3480, 
tliat  every  railroad  company  which  should 
locate  its  road  across  any  highway  should 
cross  over  or  under  the  hip;hway,  and  that 
it  should  make  and  maintain  such  bridges 
for  the  highway  as  the  convenience  and 
safety  of  the  public  travel  upun  it  should 
rccjuire.  An  act  passed  in  i889(ch.  220,  §  7) 
provides  tliat  "it  shall  be  the  duty  of  the 
railroad  companies  to  maintain  and  keep  in 
repair  all  structures  erected  over  their 
tracks  at  any  highway  crossing,  but  it  shall 
be  the  duly  of  the  municipality  in  which 
the  structure  is  situated  to  keep  in  repair 
the  surface  of  the  highway,  including  plunks 
Bnd  other  surface  material  of  the  higliway 
upon  such  structure."  Held,  that  this  act 
did  not  repeal  by  implication  the  previous 
0ct,  which  still  remained  in  force.  Middle- 
tmvtt  V.  A'ew  Yotti,  N.  //.  &*  H.  A'.  Co..  62 
C'cMM.  492,  27  Atl.l\ep.  119. 

An  act  of  incor|K>ration  of  a  railroad,  in 
which  the  legislature  has  reserved  the  right 
of  repeal,  may  be  repealed  by  implication, 
upon  the  principle  that  every  atfirmative 
statute  is  a  repeal  by  implication  of  a 
precedent  atFirMiative  statute,  so  far  as 
it  is  contrary  thereto.  Union  lirauch  A'. 
Co.  V.  East  Tenn.  A*  G.  R.  Co.,  14  Ga.  327. 
— FoLLuWKU  IN  West  End  &  A.  S.  R.  Co. 
V,  Atlanta  St.  K.  Co.,  49  Ga.  151. 

General  words  In  a  statute  should  not  be 
construed  as  repealing  by  implication  a  par- 
ticular statute  unless  they  are  otherwise 
inoperative,  and  the  provisions  in  a  city 
charter  authorizing  the  city  to  tax  express 
companies  Jo  not  repeal  the  provisinns  of 
a  general  law  requiring  foreign  express  com- 
panies to  pay  a  certain  tax  to  the  state  in 
lieu  of  all  other  taxation.  Adatns  f.i/.  Co. 
v.  Oweiisboro,  85  K'y.  265, 3  S.  W.  Hep,  370.— 
Foi.i.owiNO  Adams  Exp.  Co.  v.  Le.'.i'imon, 
83  Ky.  657. 

Where  there  are  a  number  of  siatut  js  giv- 
ing nrefeicnce  on  the  court  calendars  to 
actions  against  a  city,  and  several  of  these 
are  expressly  repeale<l,  and  it  is  manifest 
that  it  was  the  intention  of  the  commission 
crs  who  revised  the  laws,  and  of  the  leri*- 
laturc,  to  repeal  all  statutes  giving  .<uch 
preference,  one  which  seems  to  have  oeen 
omitted  by  oversight  will  be  held  repealed 
7D.  R.  D.-18 


also.  Mayor,  etc.,  of  N.  Y.  v.  Broadway^ 
S.  A.  R.  Co.,  12  //««  (A',  y.)  571.  54  ^«w. 
Pr.  323. 

Oreg.  Act  of  February  30,  iSSs,  making  ii 
unlawful  for  persons  engaged  in  the  trans- 
portation of  freight  to  charge  more  for  a 
shorter  than  for  a  longer  haul  of  a  similar 
kind  or  amount,  is  by  necessary  implication 
repealed  by  ihe  act  of  February  30,  1891, 
which  em|K)wers  the  board  of  railroad  com- 
missioners to  establish  freight  rates,  subject 
to  revision  by  the  courts  in  a  procedure 
provided  for  in  the  latter  act.  State  v.  Rog- 
ers, 22  Ore);.  348,  30  Pac.  Rep.  74. 

<m.  i:H'uct<>t'ru|iwul.— When  a  law  is 
in  the  nature  of  a  contract,  when  absolute 
rights  have  vested  under  it,  a  repeal  of  the 
law  does  not  divest  those  rights.  Fletchers. 
Peck,  6  Cranch  (U.  S.)  87. —QUOTED  IN 
People  V.  O'Brien,  36  Am.  &  Eng.  R.Cas.  78, 
ill  N.  Y.  I,  18  N.  £.  Rep.  693,  19  N.  Y.  S. 
R.  173. 

The  personal  representative  of  one  killed 
by  a  railroad  obtained  a  judgment  against 
the  company,  and  the  company  sued  out  a 
writ  of  error.  Pending  the  writ  the  stat- 
ute authorizing  such  suits  was  repealed. 
Held,  that  this  did  not  prevent  an  affirm- 
ance  of  the  judgment,  no  error  appearing  in 
the  court  below.  Kansas  Pac.  R.  Co.  v. 
Twombly,  too  I/.  S.  78, 

Ala.  Code  of  1867,  §  3536,  authorized  suits 
against  the  state,  but  a  judgment  could  oidy 
be  paid  through  the  state  officers,  after  an 
appropriation  was  made  for  the  purpose. 
Suit  was  commenced  while  this  statute  was 
in  force,  but  before  a  final  hearing  it  was 
repealed,  and  on  motion  of  the  state  the 
suit  was  dismissed  for  want  of  jurisdiction. 
//eld,  that  as  the  functions  of  the  court  did 
not  extend  beyond  simply  auditing  the  clain* , 
the  repeal  of  the  statute  was  not  in  viola- 
tion of  that  clause  of  the  federal  Constitu- 
tion which  prohibits  laws  impairing  the 
obligation  of  contracts.  Sout/i  A-*  JV.  Ala. 
R.  Co.v.  Alabama,  101  U.  S.  832.— Foi.i.ow- 
INf,  Memphis  &  C.  R.  Co.  v,  Tennessee,  loi 
U.  S.  337.  -  Foi.i.owKD  IN  Baltzeri'.  State, 
104  N.  Car.  265.  10  S.  Fi.  Rep.  153. 

The  repeal  of  a  statiilc  terminates  all 
proceedings  under  it.  unless  rights  have  ac- 
crued wliicli  cannot  be  divested.  Musgrave 
V.  Vickslmrg  iT-  N.  R.  Co.,  50  Miss.  677. 

The  effect  of  a  repealing  statute  is  to  ob- 
literate the  repealed  statute  as  completely  as 
if  it  never  had  been  passed.  It  must  be 
considered  as  a  law  that  never  existed  ex- 


874 


STATUTES,  00. 


|if 


cept  for  the  purpose  of  those  actions  which 
were  commenced,  prosecuted  and  con- 
cluded while  it  was  an  cxistint;  law.  If  there 
has  been  a  change  or  repeat  of  the  law  ap- 
plicable to  the  rights  of  the  parties,  after 
rendition  of  the  original  jiuiRmcnt  and 
pending  the  appeal,  the  case  must  be  heard 
and  decided  in  the  appellate  court,  accord- 
ing  to  the  then  existing  law.  Afusgrave  v. 
Vitkihurj^  6*  N.  R.  Co.,  50  Miss.  677.— 
Following  Key  v.  Goodwin, 4  M..St  S.  360. 

If  the  judgment  of  the  court  of  original 
jurisdiction  was  wrong  on  the  law  as  it  then 
stood,  although  there  may  have  been  error, 
if  the  law  has  been  repealed  the  appellate 
court  will  not  reverse  and  remand,  because 
the  inferior  court  must  recognize  the  repeal 
and  conform  on  the  second  trial  to  the  law 
as  it  then  was.  Musgrn<f.  v.  Vicksburg  tS- 
A'.  R.  Co.,  50  hfisi.  677. 

An  order  was  made  by  the  circuit  court 
sending  an  appeal  from  an  assessment  of 
land  damages  by  the  railroad  commissioners 
and  selectmen  to  a  referee  for  trial,  but  no 
action  was  taken  under  the  order  by  rea- 
son of  exceptions  wh'..n  were  transferred  to 
this  court.  Reform  the  exceptions  were 
reached  for  decision  in  the  supreme  court, 
the  statute  was  amended  by  excluding  such 
cases  from  its  operation.  Held,  thiit  tiic 
order  of  reference  should  be  rescinded. 
Gray  v.  Whit*  Afountains  (N.  H.)  A'.  Co.,  56 
A'.  //.  182,  20  /1m.  Ay.  Hep.  450. 

A  power  given  by  an  act  repealed  in  a 
revision,  but  which,  by  the  revisi<in,  in  the 
same  instant  that  it  was  repealed,  was  im- 
mediately re-enacted,  so  that  there  was 
never  a  moment  when  the  act  rei)calcd  was 
not  in  force,  is  not  taken  away  by  tlic  re- 
pealer. MiddUloH  V.  New  Jfrsey  W.  L.  />'. 
Co.,  26  A'.  J.  Eq.  269;  reversed  on  anotlur 
point  in  27  N.J.  Eq.  557. 

Wisconsin  Act  of  April,  1855,  wade  rail- 
road companies  liable  for  labor  performed 
in  constructing  their  roads,  but  required 
laborers  to  give  thirty  days'  notice  of  wages 
that  might  be  due.  After  a  laborer  who 
had  worked  under  a  subcontractor  had 
given  the  notice  required,  the  statute  was 
repe<iled.  Held,  that  upon  giving  the  notice 
the  laborer  obtained  a  vested  right  to  his 
claim  against  the  company,  which  could 
not  be  divested  by  the  subsequent  repealing 
act,  and  that  he  might  recover  against  the 
company  in  a  suit  brought  after  the  passage 
of  the  repealing  act.  StreuMw.  Milwauktt 
&*M.H.  C«.,i2  Wis.6ij. 


A  statute  which  refers  to  and  adopts  the 
provisions  of  another  statute  is  not  repealed 
by  the  subsenucnt  repeal  01  the  statute 
adopted.  So  where  a  statute  provides  that, 
in  actions  where  a  corporation  is  a  party,  the 
adverse  party  may  Im:  examined  as  a  witness 
in  his  own  behalf,  by  giving  a  notice  as 
required  by  another  statute,  the  subsequent 
repeal  of  the  statute  thus  referred  to  does 
not  dispense  with  the  notice.  Sika  v. 
CAiaigo  ft*  N.  ir.  A*.  Co.,  21  fF/i.  370. 

Wlicre  a  special  act  empowers  a  railway 
company  to  stop  up  streets,  and  the  de- 
posited plans  show  that  Sun  street  is  not  to 
be  stopped  up,  and  subsequently  the  com- 
pany obtains  another  act  authorizing  it  to 
make  an  underground  railway  and  re- 
enacting  the  powers  given  by  the  previous 
act,  the  deposited  plans  are  not  incorporated 
in  the  special  act,  and  the  power  to  stop  up 
all  streets,  including  Sun  street,  is  an  ex- 
isting power  capable  of  being  enforced. 
Atloritey-Ueneritl  v.  Great  Eastern  K.  Co.,  41 
L.  J.  Ch.  505,  L.  R.  7  Ch.  475,  20  W.  R.  599, 

26  L.  r.  749. 

(10.  Hiiviiig  claiistiii.  —  Iowa  Act  of 
1884,  ch.  159,  §  I,  repeals  the  act  of  1876.  ch. 
123,  which  authorizes  townships  to  vote 
taxes  in  aid  of  railroads.  Section  4;  ui  the 
Code  provides,  inter  alia,  that  the  repeal  of 
a  statute  shall  not  affect  any  penalty  in- 
curred under  the  statute.  Held,  that  the 
re|)eal  of  the  act  of  1876  «lid  not  repeal  pen- 
alties provided  therein  against  delinquent 
taxpayers,  for  taxes  voted  to  a  railroad, 
where  the  penalty  had  alreaily  accrued  be- 
fore the  passage  of  the  re|)caling  act.  C/ii- 
fitgo,  Af.  &*  St.  /'.  R.  Co.  V.  Hartshorn,  30 
Fill.  Rep.  541. 

After  the  repeal  of  Wis.  Act  of  1874,  ch. 
273,  no  recovery  could  be  had  in  any  action 
bliwi  pctiding  under  the  penal  provisions  of 
that  act,  either  by  virtue  of  Rev.  St.  ch.  1 19, 
§  33,  or  by  virtue  of  the  clause  in  the  re- 
pealing act  (ch.  S7  of  1876)  which  provided 
that  nothing  therein  contained  should  "  in 
any  manner  affect  any  litigation "  then 
pending  in  any  of  the  courts  of  that  state 
or  of  the  United  States.  Roods.  Chicago, 
AI.  6-  St.  P.  R.  Ctf.,43  Wis.  146,  \TAm.  Ry. 
Rep.  170.— Foi.LowiNO  Dillon  V.  Linder.  36 
Wis.  344.— FoLLOWKD  IN  Smith  %:  Chicago 
&  N.  W.  R.  Co.,  43  Wis.  686;  Streeter  v. 
Chicago.  M.  &  St.  P.  R.  Co.,  44  Wis.  383. 
Quoted  in  Smith  v.  Chicago  A  N.  W.  R. 
Co.,  I  Am.  &  Eng.  R.  Gas.  303,  49  Wis. 
443. 


STATUTORY  ACTIONS— STIPULATIONS. 


37ft 


TATUTORT  ACTIONS. 

By  tinployAs  for  injuriti.  •fltct  of  contribu- 
tory McUgenc*  ai  •  deftoM,  ue  Em< 
PLovii,  Injukiks  tu,  ilOO. 

Contributory  negligtiica  •■  a  dtfeuM  in.  Me 

CuNTHIIIUIUKV  NKIilJUKNCK,  II. 

Election  between  common-law  actions  and, 

see  Animau,  Injukibs  to,  30 !• 
What  are,  see  Actions,  12. 


STATUTORY  LIABHITT. 
Of  itockholdert  to  creditoia.   see   Stock* 

IIOLDKKS,  ;i7-47. 

— >  laborers,  lee  Stockiiolokrs,  44* 


STATUTORY  LIEHS. 
Payment  of,  by  receiver,  lee  Rkckivkrs,  88* 


STATUTORY  RECEIVERS. 
Accounting  by,  see  Rkckivkks,  1A4. 

STATUTORY   REMEDIES. 
Abutting    owner,    when    confined    to,   tee 
Stkekts  and  Highways,  208. 

STATUTORY  SIGNALS. 
Duty  to  treepasieri  at  respects,  tee  Tru* 

I'AbSERs,  Injuries  io,  40t  41. 
See  also  Crossings,  Injukirs  to  Persons,  itc.. 
AT.  00-103. 

STAY. 

Effect  of  appeal  as  a,  ue  Eminrnt  Domain, 

05ff. 
Of  execution,  see  Exrcution,  22. 
'—  —  in  ejectment  until  assessment  and  pay* 

ment  of  damages,  bc-e  Imminent  Domain, 

1031. 

-  proceedings   in   injunction   suit  pending 

condemnation  proceedings,  see  Elkvatkd 
Raii.wavs,  30. 
■—  —  when  granted  by  injunction,  see  In* 
junction,  30-47. 

-  suit   brought  against   receiver   without 

leave,  see  Rkceiveks,  130. 


STAY  OF  PROCEEDINGS. 

In  partition,  see  Partition,  2. 
Pending  appeal  from  judgment,  tee  Elbvatbd 
Railways,  105. 


STEAM. 
As  an  element  of  damages  to  abutting  owner. 

stc  Ki.KVAiRi)  Railways,  150. 
Frightening  teams  by  escape  of.  see  Cross- 

iNu>,  Injikies  to  1'krso.ns,  eic,  at,  10. 


Injuries  to  employes  by  escapa  of,  tee  En* 

ri.ov£.s,  Injuries  to,  174. 
passengers  by  escape  of,  tee  Carriaob 

or  Passrnokhh,  283. 
Liability  for  uting  excessive  amount  of,  tee 

FiRKs,  n4. 
Limiting  head  of,  to  be  carried,  sec  Em  ploy  ts. 

Injuries  to,  443. 
Obstruction  of  view  by,  effect  of,  on  duty  to 

look  and  listen,  tee  Crossinos,  Injuriks 

to  1'ekson.h,  eic,  at,  203. 
Proof  of  carelessness  in  permitting  escape  o( 

see  Ukaiii  by  WRoNiifUL  Act,  200. 


STEAMBOAT  COMPANIES. 
Liability  of,  as  carriers  of  baggage,  tee  Bao- 

OAUE,  4. 


STEAM  POWER. 

Power  of  city  to  prohibit  use  of,  see  Strbbts 

and  IIioiiways,  04. 
Right  to  use  in  streets  and  highways,  see 

Streets  anij  IIikiiways,  37-132. 


STEPFATHER. 

Right  of,  to  sue  for  injury  to  child,  tee  Chil. 
DBBN,  Injuries  to,  140. 


STIPULATIONS. 

Against  condemnation  pending  injunction 
suit,  see  Ki.kvatro  Railways,  37. 

—  liability  for  negligence,  tee  Limitation  op 

LiAiiiLiTY,  27-37. 

—  — of  fellow-iervants,  see   Fkllow- 

IRRVANTS,  400. 

As  to  amount  of  recovery  in  bill  of  lading,  see 
Bills  op  Lading,  81-87. 

notice  of  claim  for  loss,  see  Exprrss 

Companies,  08,  OO. 

■ sufficiency  of  car  accepted  by  shipper, 

see  Htiisop  Lading,  lOO. 

By  carrier  for  benefit  of  insurance,  see  Car- 
riage ov  Mrrciiandisr,  411. 

For  benefit  of  insurance,  see  Rills  op  Lading, 
OO;  Limitation  op  Liahiiity,  21. 

Limiting  initial  carrier's  liability  to  its  own 
line,  see  Carriage  or  Passengers,  611. 

—  liability  in  receipts  for  baggage,  see  Hag- 

GAGE,  OO. 

Powers  to  bind  clients  by,  see  Attorneys,  O. 
Requiring  notice  of  claim  of  loss,  sec  Cai> 

KiAGE  OP  LiVK  Stock,  80-84. 
To  erect  depots  and  stations,  see  EMiNKsr 

Domain,  2IO. 

—  prevent  abatement,  see  Amatf.mrm,  12. 
In  mileage  tickets,  see  Tickeis  Ar.i>  Fares, 

07    101. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


Ui^    |25 
■tt  M   ■2.2 

S;  US   12.0 


■lUU 


6" 


Photographic 

Sdmces 

Corporalion 


23  WB7  MAM  STiHT 

WnSTn,N.Y.  14SM 
(716)  •73-4503 


i 


V 


BBBBI 


276 


STOCK,  1. 


I 


m 


In  mortgage  relative  to  taxes,  see  Mort- 
gages, 82. 

—  receipts,  limitation  of  liability  by,  see  Car- 
riage OF  Live  Stock,  04. 

or  bills  of  lading,  limitation  of  liability 

by,  see  Express  Companies,  61,  62. 


STOCK. 


Actions  for  subscriptions  to,  when  barred  by 
lapse  of  time,  see  J  r  'tions  of  Ac- 
tions, 42. 

Agreement  to  take,  in  payment  for  construc- 
tion of  roads,  see  Constp-v  '•ion  of  Rail- 
ways, 25. 

— land  grar-i  ;'■  Eminent 

Domain,  198. 

Assignability  of,  see  Assionmicni,  8. 

Assignment  of  dower  in,  see  Dower,  2. 

Cancellation  of  certificate  of,  see  Equity, 
11. 

Compensation  of  directors  for  procuring  sub- 
scriptions to,  see  DiRKCTOKS,  etc.,  «$1. 

Confiscation  of,  see  War,  5. 

Conversion  of  bonds  into,  see  Bonds,  40. 

Effect  of  consolidation  upon  subscriptions  to, 
see  Consolidation,  33. 

pledge  of,  see  Pleading,  etc.,  2. 

Enjoining  voting  on,  see  Injunction,  38. 

In  competing  lines,  purchase  of,  see  Parallel 
AND  Competing  Links,  3. 

—  hands  of  stockholders,  when  exempt  from 

taxation,  see  Taxation,  177. 
Interest  on  assessments  or  calls,  see  Inier- 

EST,  2. 

Issuing  bonds  convertible  into,  see  Bonds,  8. 
Of  another  corporation,  consolidation  by  pur- 
chase of,  see  Consolidation,  16. 

—  foreign  corporation,  taxation  of,  as  repre- 

sented by  number  of  cars  in  state,  see 
Interstate  Commerce,  101. 

Payment  on  account  of,  on  reorganization, 
see  Reorganization,  5. 

Power  of  corporation  to  purchase  and  hold, 
see  Corporations,  12,  13. 

county  commissioners  to  sell  and  trans- 
fer, see  Colnties,  7. 

' directors  to  make  contracts  in  relation 

to,  see  Directors,  etc.,  37. 

legislature  to  compel  issuance  of,  to 

taxpayers,  see  Municipal  and  Local  Aid, 
14. 

personal  representative    to    sell    and 

transfer,  see  Executors  and  Administra- 
tors, lO. 

Purchasers  of,  when  entitled  to  dividends,  see 
Dividends,  7. 

Remedy  by  stockholder  who  has  been  de- 
prived of,  see  Stockholders,  104-100. 

Right  to  interest  on  subscriptions  to,  see  In- 
terest, 8* 


Shares  of,  when  may  be  reached  in  attach- 
ment, see  Attachment,  etc.,  31. 

subject  to  execution,  see  Execution, 

11. 

taxation,  see  Taxation,  101- 

105,  135. 

Specific  performance  of  contracts   to   sub- 
scribe for,  see  Specific  Performance,  11. 

Subscriptions  for,   by  married  woman,   see 
Husband  and  Wife,  7. 

—  to,  when  may  be  reached  in  attachment, 
see  Attachment,  etc.,  32. 

subject  to  mechanic's  lien,  see  Liens, 

27. 

Taxpayer,  when  entitled  to,  see  Municipal 
and  Local  Aid,  62. 

Transactions  in,  by  directors,  see  Directors, 
etc.,  51. 

Transfer  of,  by  married  woman,  see  Husband 
and  Wife,  8. 

When  limitation  begins  to  run  in  actions  on 
subscriptions  to,  see  Limitations  of  Ac- 
tions, 20. 
See  also  Subscriptions  to  Stock. 

I.  NATURE,    CHARACTEBISTICS,     AND 

SIGHTS  OF  HOLDERS 276 

II.  ISSUINO 278 

III.  INCREASE     AND     REDUCTION     OF 

STOCK 282 

IV.  TRANSFERS 285 

1.  Right  to  Transfer.      Valid- 

ity   285 

2.  How  I'-ffectcd. 287 

3.  Transfer  by  Way  of  Pledge,  289 

4.  Sales  of  Stock 291 

5.  Compelling       Transfer     on 

Books.     Mandamus 293 

6.  Action  for  Kef usal  to  Trans- 

fer      295 

7.  Rights  of   Purchasers  and 

Transferees 298 

8.  The     Transfer    Book    and 

List  of  Stockholders 302 

9.  Forged      and     Fraudulent 

Transfers 304 

I.  NATURE,  CHARACTERISTICS,  AND 
RIGHTS  OF  HOLDERS. 

1.  Nature,  generally— Evidence  of 
title.— A  certificate  of  shares  is  the  affir- 
mation of  the  company  tliat  a  certain 
amount  of  stock  stands  in  the  name  of  the 
person  mentioned.  S/,rnpshire  Union  R.  <&* 
C.  Co.  V.  Reg.,  7  L.  R.  //.  L.  Cas.  496,  23  IV. 
R.  709,  32  L.  T.  283 ;  reversing  L.  R.  8  Q.  B. 
435,  42  L.y.  Q.  B.  193,  21  W.  R.  953,  which 
reversed  L.  R,  8  Q.  B.  420. 


01 


^1 


STOCK,  2-6. 


277 


In  a  certain  sense,  shares  of  stock  in  a 
corporation  represent  an  interest  in  tiie  cor- 
porate estate,  and  a  conveyance  thereof  is  a 
conveyance  of  such  interest.  But  it  is  not 
a  particular  interest  in  particular  property* 
but  simply  an  interest  in  the  rights  and 
property  of  the  corporation,  whatever  they 
may  be,  and  subject  to  the  corporate  obli- 
(rations.  State  v.  North  La.  &»  T.  R.  Co.,  34 
La.  Ann.  947. 

A  certificate  of  stock,  although  not  the 
title,  is  an  authoritative  declaration  that  such 
a  title  exists,  which  may  operate  as  an 
equitable  estoppel  in  favor  of  third  persons 
who  part  with  value  in  the  belief  that  it  is 
true.     Willis  V.  Fry,  13  Pkila.  (Pa.)  33. 

A  share  of  stock  is  without  earmarks, 
and  cannot  be  distinguished  from  other 
shares  of  the  same  corporation  and  issue;. 
The  certificates  bearing  dates  and  numbers 
are  but  evidence  of  title.  Hubbell  v.  Drexel, 
15  Phila.  (Pa.)  478. 

2.  Shares  are  personal  property.-- 
Shares  of  stock  in  a  company  duly  incor- 
porated are  personal  property.  McClaskey 
V.  Lake  View  M.  <S-  7'.  Co.,  18  Colo.  65,  31 
Pac.  Rep.  333.  Baltimore  City  Pass.  R.  Co, 
V.  Sewell,  35  Aid.  238.  Johns  v.  Johns,  i 
Ohio  St.  350.— Quoting  Bradley  v.  Holds- 
worth.  3  M.  &  W.  422.  Reviewing  Dun- 
cuf't  w.  Albrecht,  12  Sim.  189. 

And  accompany  the  person  of  the  owner. 
Huntzinger  v.  Philadelphia  Coal  Co.,  11 
Phila.  (Pa.)  609.— QUOTING  McKeen  v. 
Northampton  Coimty,  49  Pa.  St.  525 ; 
Hutchins  v.  State  Bank,  12  Mete.  (Mass.) 
421. 

3.  Ri{;IitH  conferred  on  holder, 
{ifenerally. — The  capital  slock  of  a  cor- 
poration is  the  money  or  property  put  into 
the  corporate  fund  by  the  subscribers  for 
said  stock,  whicli  fund  becomes  the  prop- 
erty of  the  corporation.  A  share  of  capital 
stock  is  the  right  to  partake,  according  to 
the  amount  put  into  the  fund,  of  the  surplus 
profits,  and  upon  dissolution  of  the  corpo- 
ration, of  the  fund  remaining  after  payment 
of  debts.  Burrall  v.  Bushwick  R,  Co.,  75 
A^.  K.  211. 

A  subscriber  may  become  the  owner  of  a 
j;iven  number  of  shares,  but  not  in  such 
sense  that  he  may  take  away  those  shares 
out  of  the  corporate  fund ;  and  the  corpo- 
ration has  no  power,  and  cannot  be  com- 
pelled, while  continuing  in  legal  existence 
and  carrying  on  the  business  for  which  it 
was  created,    to    issue    and    deliver  such 


shares.  All  that  the  corporation  can  do  is 
to  issue  written  evidence  of  the  existence 
and  ownership  of  such  shares,  known  as 
stock  certificates.  Burrall  v.  Bushwick  R. 
Co.,  75  N.  Y.  211. 

4.  Preference  stock  in  English 
law.  —  Preference  stock  allotted  to  the 
shareholders  of  a  railway  company,  whose 
road  is  purchased  by  the  company  issuing 
such  stock,  is  stock  within  the  meaning  of 
13  &  14  Vict.  c.  97,  Schedule,  tit.  Convey- 
ance, and  is  liable  to  pay  duty  on  its  market 
value.  Furness  R.  Co.  v.  Inland  Revenue 
Com'rs,  \oJur.  N.  S.  11 33,  33  L.  J.  Ex.  173, 
13  W.  R.  10,  10  Z,.  T.  161.  Ulverstone  &*  L. 
R.  Co.  v.  Inland  Revenue  Com'rs,  2  H.&'C. 
855. 

A  company  has  power  to  issue  preference 
shares  if  it  is  given  this  power  by  the  arti- 
cles of  association ;  it  is  not  necessary  that 
the  power  should  be  stated  in  the  memo- 
randum of  association.  Harrison  v.  Mexi- 
can R.  Co.,  44  L.  J.  Ch.  403,  L.  R.  19  Eq. 
358,  23  W.  R.  403, 32  L.  T.  82.— Followed 
IN  Re  South  Durham  Brewery  Co.,  L.  R.  31 
Ch.  D.  261,  34  W.  R.  126,  55  L.  J.  Ch.  179. 
53  L.  T.  928. 

A  company  was  empowered  by  its  act  to 
divide  the  ordinary  shares  into  preferred 
and  deferred  half  shares.  There  was  no 
other  power  in  the  act  to  issue  preference 
shares.  The  company  filed  a  scheme  of  ar- 
rangement with  its  creditors,  under  the 
Railway  Companies  Act,  1867,  §  6,  to  which 
i  obtained  the  assent  of  the  debenture 
h>  Idors,  and  also  of  the  ordinary  share- 
h..lders  (including  the  holders  of  preferred 
and  deferred  half  shares),  at  an  extraordi- 
nary general  meeting.  Held,  that  the 
holders  of  preferred  half  shares  did  not  form 
a  class  of  preference  shareholders  whose 
separate  assent  must  be  obtained  under 
section  12  of  the  act.  In  re  Brighton  &*  D. 
R.  Co.,  L.  R.  44  Ch.  D.  28. 

5.  Preferred  stock  and  rights  of 
holders."* — Certificates  of  stock  recited 
that  "  the  preferred  stock  is  to  be  and  re- 
main a  first  claim  upon  the  property  of  the 
company  after  its  indebtedness,  and  the 
holder  thereof  shall  be  entitled  to  receive 
from  the  net  earnings  of  the  company  seven 
percent,  per  annum,"  which  should  be  paid 
before  the  payment  of  any  dividends  on  the 
common  stock.    Held,  that  this  only  gave 

*  Preferred  stock,  see  notes,  16  Am.  &  Eng.  R, 
C  \s   4.15',  13  Id.  144;  9  Id.  644;  4  Id.  391. 


fj«l 


278 


STOCK,  6. 


il 


i 

I 


the  preferred  stockholders  priority  over  the 
holders  of  common  stocic,  but  did  not  cre- 
ate any  lien  or  claim  in  their  favor  superior 
to  debts  contracted  by  the  company  after 
the  stock  was  issued.  Warren  v.  King,  io8 
U.  S.  389,  2  Sup.  Ct.  Rep.  789.— Approving 
Kingw.  Ohio  &  M.  R.  Co.,  2  Fed.  Rep.  36. 
Following  St.  John  v.  Erie  R.  Co.,  22 
Wall.  136. 

Defendant  company  issued  certificates  of 
stock  reciting  that  the  holders  should  be 
entitled  to  "  shares  of  preferred  stock  of  said 
corporation,  and  shall  be  entitled  to  receive 
of  the  net  earnings  of  said  company,  which 
may  be  divided  *  *  *  in  each  year,  up  to 
$7  per  share,  and  to  share  in  any  -if  ilus 
beyond  $7  a  share  which  may  be  d'vided 
upon  the  common  stock."  Held,  that  this 
gave  the  holders  of  the  preferred  stock  a 
seven  per  cent,  dividend  in  preference  to  all 
others,  and,  if  the  surplus  was  sufficient, 
then  the  holders  of  common  stock  were  en- 
titled to  seven  per  cent.,  and,  if  there  was 
still  a  surplus,  it  should  go  to  the  holders  of 
the  preferred  and  common  stock  equally. 
Bailey  v.  Hannibal  <&*  St.  J.  R.  Co.,  i  Dill. 
{U.  S.)  174. 

A  valid  equitable  lien,  as  against  subse- 
quent incumbrancers  or  their  agents,  is 
created  by  an  agreement  that  the  so-called 
preferred  stock  of  a  railroad  company  shall 
be  a  lien  of  a  certain  class,  provided  the 
agreement  is  brought  to  their  knowledge. 
Skidiiy  V.  Atlantic,  M.  6-  O.  R.  Co.,  3 
Hughes  {U.  5.)  320. 

A  subscription  for  "  preferred  stock," 
which  is  to  draw  ten  per  cent,  interest  at 
once,  cannot  be  reckoned  to  make  up  the 
amount  of  capital  stock  required  by  the 
charter.  Lewey's  Island  R.  Co.  v.  Bolton, 
48  Me.  451. 

A  corporation  voted  on  December  10, 
1851,  to  issue  preferred  stock  to  raise  money 
to  pay  a  floating  debt ,  id  bonds  due  July 
1, 1852,  four  shares  of  the  preferred  to  be  ex- 
changed for  three  shares  of  the  old  stock  and 
a  cash  payment.  A  bonus  was  to  be  given 
if  a  certain  per  cent,  of  the  last  should  be 
paid  with  interest  between  January  i  and 
February  i,  1852,  the  remainder  to  be  paid 
on  June  15  following.  Dividends  were  to 
be  paid  at  a  certain  rate  on  the  preferred 
stock,  and  every  stockholder  subscribing  "  at 
any  time  "  after  February  i,  1852,  should  be 
"entitled  to  have  his  stock  preferred  in  like 
manner."  On  April  1,  i888,  a  stockholder 
tendered  three  shares  of  the  old  stock,  with 


the  requisite  cash,  and  demanded  four  shares 
of  the  preferred  stock,  and  it  was  refused. 
The  average  rate  of  dividends  paid  on  tiie 
preferred  stock  up  to  that  time  had  been 
much  less  than  the  proposed  rate,  but  the 
corporation  was  then  prosperous,  and  that 
rate  had  been  maintained  for  some  little 
time.  Held,  that  such  stockholder  was 
obliged  to  elect  to  take  the  preferred  stock, 
if  not  on  or  before  June  15,  1852,  within  a 
reasonable  time  at  least;  and  that  he  had 
failed  to  do  so,  and  was  not  entitled  to  the 
preferred  stock.  Hollands.  Cheshire R.  Co., 
151  Mass.  231,  24  N.  E.  Rep.  206. 

Where  stockholders  adopt  a  resolution 
authorizing  an  issue  of  preferred  stock,  and 
it  is  recited  that  it  is  to  be  issued  under 
Ohio  Act  of  April  16,  1870,  which  author- 
izes certificates  of  preferred  stock,  but  does 
not  authorize  certificates  of  indebtedness, 
the  terms  of  the  statute  become  a  part  of 
the  certificates ;  and  such  certificates  will  be 
held  to  be  certificates  of  stock,  unless,  from 
the  whole  transaction,  it  is  clear  that  the 
purpose  was  to  create  a  debt.  Miller  v. 
Ratterman,  43  Am.  &*  Eng.  R.  Cas.  339, 
47  Ohio  St.  J41,  24  N.  E.  Rep.  496. 

n.  IBSUINO. 

G.  Construction  of  statutes.  —Ala. 
Const,  art.  14,  §  6,  provides  that  "  no  corpo- 
ration shall  issue  stock  or  bonds  except  for 
money,  labor  done  or  money  or  property 
actually  received,  and  all  fictitious  increase 
of  stock  or  indebtedness  shall  be  void." 
Ala.  Code  1876,  §  1824,  requires  all  sub- 
scriptions to  capital  stock  to  railroads  to  be 
payable  in  money,  labor  or  property  at  their 
money  value.  Held,  that  where  one  com- 
pany buys  the  road  of  another,  and  pays  for 
the  same  by  an  issue  of  stock  and  bonds, 
the  road  may  be  valued  at  the  cost  of  build- 
ing it,  and  it  is  immaterial  that  the  selling 
company  acquired  it  for  less  than  its  actual 
value.  Grant  v.  East&*  W.  R.  Co.,  S^Eed. 
Rep.  569,  2  [/.  S.  App.  182,  4  C.  C.  /f.  511 ; 
affirming  52  Fed.  Rep.  531. 

Neb.  Const,  art.  11,  §  5,  prohibits  the  issu- 
ing by  a  railway  corporation  of  stocks  or 
bonds  except  for  the  consideration  actually 
received.  One  of  the  objects  of  this  provi- 
sion is  to  enable  the  public  to  ascertain  the 
actual  cost  of  each  railway  in  the  state,  and 
to  enable  the  legislature  to  pass  laws  fixing 
an  equitable  rate  of  taxation,  and  for  the 
transportation  of  persons  and  property,  so 
tli.'it  justice  may  be  ;^one  alike  to  the  rail* 


STOCK,  7-10. 


279 


^< 


way  company,  the  public  and  private  indi- 
viduals. State  ex  rel.  v.  Atchison  &*  N.  K. 
Co.,  32  Am.  Gr»  Eng.  R.  Cas.  388,  24  Ne6. 
143,  38  A^.  IV.  Rep.  43. 

Stockholders  of  defendant  company  pro- 
cured an  act  of  the  legislature  authorizing  it 
to  issue  additional  shares  of  stock,  not  ex- 
ceeding ten  per  cent,  of  its  original  capital, 
as  many  as  might  be  necessary  to  enable  the 
company  to  provide  for  and  pay  interest  on 
the  instalments  paid  in  for  the  construction 
of  the  road  until  it  should  be  completed  and 
put  in  operation.  Held,  that  the  additional 
shares  thus  autnorized  were  to  be  converted 
into  money,  and  the  payments  to  subscribers 
were  to  be  made  in  cash,  and  not  by  a  trans- 
fer of  shares.  Manice  v.  Hudson  River  R. 
Co.,  3  Duer  (N.  V.)  426. 

7.  Power  to  issue  —  Validity  of 
certificate — Interest.  — A  company  is- 
sued a  writing  stating  that  the  holder  was 
entitled  to  a  certain  number  of  shares  of 
fifty  dollars  each  of  the  capital  stock  of  the 
company,  but  provide  that  it  should  bear 
interest  until  the  road  was  open  to  a  certain 
designated  place.  He/d,  that  this  coni'i- 
tuted  the  holder  a  stockholder  and  member 
of  the  company,  and  was  not  merely  evi- 
dence of  a  conditional  subscription,  which 
would  mature  into  an  absolute  subscription 
when  the  road  was  built  to  the  place  desig- 
nated. McLaughlin  v.  Detroit  ^^  M.  R.  Co., 
8  Mich.  100.— Explained  in  Williston  v. 
Michigan  S.  &  N.  I.  R.  Co.,  13  Allen 
400. 

The  provision  in  the  certificate  for  the 
payment  of  interest  constituted  a  contract 
between  the  company  and  the  holder,  and 
the  company  could  not  change  the  holder's 
right  to  demand  money  by  a  resolution  re- 
quiring him  to  accept  the  bonds  of  the  com- 
pany instead  of  money,  where  it  was  passed 
without  the  holder's  consent.  McLaughlin 
v.  Detroit  &•  M.  R.  Co.,  8  Mich.  100. 

The  company  defended  an  action  to  re- 
cover the  interest  reserved  in  the  above  cer- 
tificates on  the  ground  that  they  were  issued 
by  the  president  and  treasurer  of  the  com- 
pany without  authority.  Held,  that  the 
resolution  reciting  that  such  interest  should 
be  paid  in  bonds  was  a  ratification  of  the 
act  of  ».lie  officers,  if  indeed  it  needed  any 
ratification.  McLaughlin  v.  Detroit  &•  M. 
R.  Co.,  8  Mich.  100. 

A  statute  authorizing  the  issue  of  pre- 
ferred stock,  if  accepted  by  the  stockholders, 
authorizes  such  issue  by  the  directors,  al- 


though individual  stockholders  may  oppose 
it.     Curry  v.  Scott,  54  Pa.  St.  270. 

8.  Issuing  stock  for  land.  —  In  the 

absence  of  express  legislation  a  corporation 
has  the  same  power  of  disposition  over  its 
unsubscribed  capital  stock  as  any  ordinary 
owner,  and  it  may  be  exchanged  for  land,  to 
be  sold  again,  when  the  corporation  has  gen- 
eral power  to  purchase  real  estate.  If  such 
exchange  be  an  abuse  of  the  company's  cor- 
porate power,  it  furnishes  no  ground  on 
which  the  vendor  of  th'*  '  md  can  object. 
Dayton  &*  C.  R.  Co.  \  latch,  i  Disney 
{Ohio)  84. 

9.  Issuingr  paid-up  stock  at  a  dis- 
count.— A  company  governed  by  the  Com- 
panies Clauses  Consolidation  Act,  1845,  and 
the  acts  amending  it,  may  issue  fully  paid- 
up  original  stock  at  a  discount,  and  for 
payment  either  in  cash  or  for  land  or  labor 
or  other  consideration,  subject  to  the  liabil- 
ity of  the  directors  for  issuing  the  stock 
below  its  value  without  necessity.  Such 
companies  may  also  issue  debentures  or  de- 
benture stock  at  a  discount,  if  authorized  to 
borrow  money  or  raise  money  by  mortgages 
or  debentures.  Webb  v.  Shropshire  R.  Co., 
[1893]  3  Ch.  307. 

10.  Issuing  full-paid  stock  for 
work  on  construction.  —  Defendants 
agreed  to  accept  a  road  which  complainants 
were  to  build,  and  to  issue  to  complainants 
stock  at  the  rate  of  150  shares  per  mile  of 
the  road,  payment  to  be  made  when  defend- 
ants' superintendent  should  approve  of  the 
road.  Held,  that  the  contract  was  fully  dis- 
charged by  issuing  the  150  shares  per  mile, 
exclusive  of  any  dividends  which  might  have 
accrued  on  the  stock  in  the  meantime. 
Southwestern  R.  Co,  v.  Papot,  67  Ga.  675. 

A  company  is  not  forbidden  to  issue  bonds 
and  stock  to  contractors  in  payment  for  the 
construction  of  its  road,  if  the  amount  so 
issued  does  not  unreasonably  exceed  the 
value  actually  received,  by  Minn.  Laws  1887, 
ch.  12,  §  I,  which  prohibits  the  sale  or  dis- 
posal of  shares  of  the  capital  stock  of  rail- 
road companies,  or  the  issue  of  certificates 
therefor,  unless  such  shares  shall  have  been 
fully  paid,  or  the  issuance  of  any  stock  or 
bonds  except  for  money,  labor  or  property 
received  and  applied  for  the  purpose  for 
which  the  company  was  created.  Brownv. 
Duluth,  M.  &>•  N.  R.  Co.,  ^4  Am.  &>  Eng 
R.  Cas.  219,  53  Fed.  Rep.  889.— QUOTING 
Memphis  &  L.  R.  R.  Co.  v.  Dow,  120  U.  S. 
2y8,  7  Sup.  Ct.  Rep.  482. 


280 


STOCK,  11-14. 


i-l 


11.  Issuing  preferred  stock  to  con- 
tractors.—It  is  not  ultra  vires  for  a  com- 
pany to  agree  to  issue  to  contractors,  for 
the  completion  of  the  road,  preferred  stock 
in  payment  for  work  to  be  done,  and  to 
agree  that  a  majority  of  the  directors  shall 
be  the  holders  of  a  certain  number  of 
shares  of  said  preferred  stock ;  provided 
the  number  of  shares  agreed  to  be  issued 
does  not  make  the  whole  amount  of  shares 
greater  than  the  capital  stock  authorized 
by  the  charter.  (Warner,  J.,  dissenting.) 
Hazlehurst  v.  Savannah,  G.  &•  N.  A.  R.  Co., 
43  Ga.  13. 

12.  Fictitious  issue  in  excess  of 
corporate  capital. — Certificates  of  stock 
in  a  corporation  issued  upon  the  basis  of  a 
fictitious  increase  of  its  capital  stock,  when 
there  is  no  increase  of  its  capital,  are  utterly 
void.  Beitman  v.  Steiner,  98  Ala.  241,  13 
So.  Rep.  87. 

Where  an  attempt  has  been  made  to 
authorize  the  issue  of  an  excess  of  stock  cer- 
tificates over  the  real  capital  of  a  corpora- 
tion, the  law  does  not  avoid  the  entire 
issue,  but  the  vitiating  operation  of  the 
Constitution  (art.  14,  §  6)  is  confined  to  the 
fictitious  excess.  Beitman  v.  Steiner,  98 
Ala,  241,  13  So.  Rep.  87. 

Where  all  the  stock  cert!  ficateb  are  issued 
and  delivered  to  subscribers  at  one  time, 
and  purport  to  represent  the  gross  capital — 
actual  and  fictitious — the  certificate,  though 
not  representing  its  face  value,  is  in  part 
based  on  actual  property,  giving  the  holder 
the  right  to  share  in  the  income  and  assets 
of  the  corporation  in  the  proportion  that  his 
certificate  sustains  to  the  whole  issue  and 
the  whole  issue  sustains  to  the  actual  capi- 
tal Beitman  v.  Steiner,  98  Ala.  241,  i^So. 
Rep.  87. 

Certificates  of  stock  in  corporations  issued 
in  double  the  amount  of  the  actual  capital 
represented  by  them  are  not  invalid  for  that 
cause  ;  and  a  purchaser  of  such  certificates, 
who  gives  his  promissory  note  therefor, 
with  a  knowledge  of  the  fictitious  increase 
of  shares  and  the  absence  of  concealment  or 
misrepresentation,  cannot  set  up  a  failure 
of  consideration  in  defense  of  an  action  on 
his  said  note.  Beitman  v.  Steiner,  98  Ala. 
241,  13  5o.  Rep,  87. 

13.  Riglits  of  holder  of  stock 
fraudulently  issued.  —  In  an  action 
against  a  company  by  the  holder  of  fraud- 
ulent stock,  issued  and  negotiated  by  its 
treasurer,  for  the  refusal  to  exchange  it  for 


new  stock,  the  company  is  responsible  for 
the  fraud  of  the  treasurer.  Tome  v,  Parkers- 
burg  Branch  R.  Co.,  39  Md,  36,  11  Am. 
Ry,  Rep.  285.  — DISTINGUISHING  Swan  v. 
North  British  Australasian  Co.,  32  L.  J.  Ex. 
273.  Reviewing  New  York  &  N.  H.  R. 
Co.  V.  Schuyler,  34  N.  Y.  6i  ;  Titus  w.  Great 
Western  Turnpike  Road,  5  Lans.  (N.  Y.)25o. 
— Distinguished  in  Baltimore  &  O.  R.  Co. 
V.  Wilkens,  44  Md.  11.  Followed  in 
Western  Md.  R.  Co.  v.  Franklin  Bank,  60 
Md.  36. 

In  an  action  to  recover  damages  sustained 
by  the  refusal  of  defendant  corporation  to 
recognize  as  valid  certain  shares  of  stock 
held  by  plaintiffs,  or  to  r  JW  them  to  be 
transferred  and  to  issue  new  certificates 
therefor,  the  certificates  having  been  fraud- 
ulently issued  by  the  company's  treasurer, 
the  measure  of  damages  is  the  market  value 
of  the  shares  at  the  time  when  the  company 
first  refused  to  recognize  them  as  valid. 
Allen  V.  South  Boston  R.  Co. ,  1 50  Mass,  200, 
5  L.  R.  A.  716,  22  A^.  E.  Rep.  917. 

If  an  ofllicer  of  a  corporation,  having  the 
power,  either  alone  or  with  others,  to  issue 
certificates  of  stock,  fraudulently  issues  as 
security  for  his  private  debts  a  certificate  to 
his  creditor  in  the  latter's  name,  such  cred- 
itor cannot  rely  upon  the  certificate,  and 
recover  damages  from  the  corporation  upon 
its  refusal  to  recognize  it  as  valid,  although 
he  has  no  knowledge  of  the  fraud ;  but  if 
on  taking  it  he  fails  to  investigate  the  title 
to  the  stock,  he  is  affected  with  notice  of 
whatever  he  might  have  discovered  upon 
making  proper  inquiry.  Farrington  v. 
South  Boston  R.  Co.,  150  Mass.  406,  23  N. 
E.  Rep.  109, 

14.  Compelling  issue  of  stock, 
generally.  — In  negotiating  a  loan  defend- 
ant company  offered  to  give  lenders  its 
bonds,  with  the  privilege  of  becoming 
stockholders  for  one  half  of  the  amount  of 
the  loan.  Plaintiff,  a  subscriber,  received 
a  provisional  certificate  declaring  him  to  be 
entitled  to  scrip  certificates  for  a  certain 
number  of  shares  after  a  certain  fixed  date  ; 
but  at  the  bottom  of  the  certificate,  and  be- 
low the  signatures,  there  was  a  memorandum 
stating  that  the  exchange  of  certificates  was 
"  limited  to  ist  January,  iS;-,'"  but  by  a 
vote  of  the  company  the  date  was  subse- 
quently fixed  as  1855.  After  having  com- 
plied with  all  the  conditions  of  the  sub- 
scription, plaintiff  applied  in  1857  for  his 
certificates  of  shares.    Held,  that  his  right 


11 


STOCK,  15-20. 


281 


to  become  a  stockholder  became  absolute 
when  he  complied  with  all  the  terms  touch- 
ing the  loan,  and  could  not  be  affected  by 
such  memorandum  on  the  provisional  cer- 
tificate. F<5«  Alen  v.  Illinois  C.  K.  Co.,  4 
Abb.  A  ftp.  Dec.  (N.  Y)  443,  2  Keyes  673 ;  af- 
firming 7  Bosw.  5 1 5. 

15.  Compelling  reissue  of  stock 
represented  by  lost  certificate.*  — 
The  right  of  the  owner  of  corporate  stock 
who  has  lost  his  certificate,  in  case  the  cor- 
poration refuses,  upon  indemnity  being  ten- 
dered, to  issue  to  him  a  new  certificate,  to 
maintain  an  equitable  action  to  compel  such 
issue,  was  not  taken  away  or  affected  by  N. 
Y.  Act  of  1873,  ch.  171,  giving  a  summary 
remedy  in  such  cases.  That  act  did  not  give 
a  remedy  at  law,  but  simply  a  cumulative 
and  additional  equitable  remedy.  Kinnan 
v.  Forty-second  St.,  M.  (S-  St.  N.  A.  R.  Co., 
140  A^.  Y.  183,  55  N.  Y. ...  R.  584,  35  A'.  E. 
Rep.  498 ;  affirming  49  A'^.  Y.  S.  R.  608,  i 
Misc.  457,  21  A''.   Y.  Sufip.  789. 

10.  Right  to  nttuck  validity  of 
issue. — The  question  whether  a  corpo- 
ration has  made  an  improper  issue  of  capital 
stock  cannot  be  inquired  into  in  a  proceed- 
ing to  acquire  land  for  the  use  of  the  cor- 
poration. In  re  Staten  Island  R.  T.  R.  Co., 
38  Hun  (N.  K.)  381. 

17.  Estoppel  to  deny  validity  of 
overissued  stock.  —  A  corporation  is 
estopped  to  deny  the  validity  of  a  stock 
certificate  issued  by  it  in  a  fraudulent  man- 
ner for  stock  in  excess  of  the  authorized  cap- 
ital of  the  corporation.  Jarvis  v.  Manhat- 
tan Beach  Co.,  53  Hun  362,  25  A^.  Y.  S.  R.  i, 
6  N.  Y.  Supp.  703. 

18.  Taking  notes  in  payment  for 
stock— Liability  of  corporation.— A 
company  sold  stock  to  be  paid  for  in  instal- 
ments, and  issued  conditional  certificates  re- 
citing that  unconditional  certificates  would 
be  issued  when  the  instalments  were  all 
paid.  It  took  notes,  which  it  negotiated, 
and  which  were  never  paid,  for  the  deferred 
instalments,  but  issued  unconditional  cer- 
tificates to  the  assignees  of  the  certificates. 
Held,  that  the  holders  of  the  notes  might 
recover  against  the  company.  Houston  &• 
T.  C.  R.  Co.  v.  Bremond,  66  Tex.  1 59. 

A  corporation  can  exercise  no  powers 
except  those  conferred  by  its  charter ;  but 
in  executing  those  powers  it  may  adopt  any 

*  Rights  of  true  owner  and  of  holder  of  stolen 
or  lost  stock  certificates,  see  note,  13  L.  R.  A. 
605. 


proper  and  convenient  means  tending  di- 
rectly to  their  accomplishment,  and  not 
amounting  to  the  transaction  of  a  separate, 
unauthorized  business.  So  a  company  may 
sell  stock  and  take  in  payment  a  note 
secured  by  a  mortgage,  where  the  sole  pur- 
pose is  to  negotiate  the  note  to  raise  money 
to  build  its  road.  Clark  v.  Farritigton,  1 1 
Wis.  306. 

And  the  fact  that  the  company's  charter 
fixes  the  amount  of  its  shares  at  so  many 
dollars  does  not  necessarily  imply  that  pay- 
ment therefor  shall  be  made  in  cash.  Clark 
V.  Farrington,  1 1   Wis.  306. 

10.  Conversion  of  bonds  into 
stock. — Railroad  directors  have  no  power 
to  sell  stock  at  less  than  the  price  fixed  in 
the  company's  charter;  and  this  cannot  be 
done  by  issuing  a  bond  convertible  into 
stock  at  a  discount.  Stock  thus  taken  and 
held  by  a  party  with  notice  may  be  reduced 
to  the  charter  value  of  the  shares.  Sturges 
v.  Stetson,  i  Biss.  (If.  S.)  246. 

A  company  having  a  capital  stock  of 
$1,500,000,  with  power  to  increase  the^  same 
to  any  necessary  amount,  and  to  allow  and 
pay  interest  thereon,  issued  its  bonds,  bear- 
ing interest  payable  semi-annually,  and  con- 
taining a  provision  that  they  might,  within 
a  specified  time,  be  converted  into  stock  of 
the  road  at  the  option  of  the  holder.  In- 
terest was  allowed  to  the  stockholders  up 
to  the  date  of  the  first  dividend,  and  was 
paid  by  issuing  to  them  new  stock,  the  sum 
so  paid  not  exceeding  the  net  earnings  of 
the  road  during  the  time  named.  Held, 
that  a  bondholder,  who  had  been  regularly 
paid  the  interest  on  his  bonds  up  to  the 
time  of  the  dividend,  and  who  then  elected 
to  convert  his  bonds  into  stock,  was  only 
entitled  to  receive  stock  to  the  amount  of 
the  principal  sum  specified  in  the  bonds, 
and  could  claim  no  part  of  the  nev;  stock  so 
issued  by  the  company,  nor  any  compensa- 
tion or  allowance,  in  stock  or  otherwise,  on 
account  thereof.  Sutliff  v.  Cleveland  &*  M. 
R.  Co.,  24  Ohio  St.  147,  6  Am.  Ry.  Rep.  356. 

20.  Conversion  of  stock  into 
bonds. — A  railroad  company  entered  into 
an  agreement  with  defendant  and  another 
as  trustees  for  purchasers  of  the  company's 
property,  by  which  the  company  agreed  to 
lease  its  franchise  and  property  to  a  new 
company  to  be  org,anized  by  the  trustees, 
and  to  receive  a  certain  amount  of  stock  of 
the  new  company.  In  case  the  new  com- 
pany, during  the  lease,  should  issue  mort- 


1  '^.1 
I"  \ 


V  1 


vg! 


I! 


STOCK,  21-24. 


gage  bonds,  tlie  holders  of  the  transferred 
stock  should  have  the  right  to  exchange  it 
for  an  equal  amount  of  the  bonds.  The 
agreement  was  carried  out,  the  stock  deliv- 
ered in  payment  of  the  lease  was  soon  sold 
and  transferred  by  the  lessor,  but  the  trans- 
fer was  not  entered  on  the  books  of  the  new 
company.  Subsequently  the  new  company 
issued  mortgage  bonds,  and  nine  years 
thereafter,  and  after  it  had  passed  into  tlie 
hands  of  a  receiver,  and  its  stock  was  worth- 
less, plaintiff,  who  was  the  owner  of  a  por- 
tion of  the  transferred  stock,  demanded 
that  it  should  be  exchanged  for  bonds, 
which  was  refused,  and  he  brought  suit  to 
recover  the  value  of  the  bonds.  /M<i,  that 
the  laches  in  applying  for  the  exchang*" 
waived  all  right  to  demand  the  exchange 
or  to  recover  the  value  of  the  bonds.  Cat- 
lin  V.  Green,  120  TV.  Y  441,  24  N.  E.  Rep. 
941,  31  N.  Y.  S.  R.  532  ;  affirming  5  N.  Y. 
S.  R.  866. 

21.  Conversion  of  tax  certificate 
Into  stock. — Under  tlie  acts  incorporating 
the  Pacific  railroad  and  acts  amendatory 
thereto,  it  is  the  tax  certificate,  and  not  the 
collector's  tax  receiot,  which  is  made  as- 
signable and  convertible  into  stock.  Where 
one  does  not  show  that  any  certificates  for 
taxes  paid  were  ever  issued  to  him  or  to  the 
taxpayers,  he  presents  no  right  to  have  the 
railroad  issue  its  stock  to  him.  Spurlock 
V.  Missouri  Pac.  R.  Co.,  oo  Mo,  199,  2  5.  IV. 
Pep.  219. 

III.  INCREASE  AND  BEDUCTION  OF  STOCK. 

22.  Ri{;lit    to     increase     capital 

stock.*— Where  a  company  has  paid  for 
things  properly  chargeable  to  capital  out  of 
revenue,  it  may  raise  fresh  capital  for  the 
purpose  of  recouping  the  revenue  account 
at  a  subsequent  time.  Mills  v.  Northern 
R,  of  Buenos  Ay  res  Co.,  23  L.  T.  719. 

Where  the  articles  of  association  of  a 
company  provide  that  the  directors  may, 
with  the  sanction  of  a  special  resolution, 
increase  the  capital  in  such  manner  and  to 
such  amount,  and  to  be  with  and  subject  to 
such  rules,  regulations,  privileges  and  con- 
ditions, as  the  company  in  general  meeting 
shall  think  fit,  special  resolutions  authoriz- 
ing an  increase  of  the  capital  by  the  issue 
of  preferred  stock  are  not  ultra  vires.    Har- 

*  Right  to  increase  stock  as  between  owner  of 
capital  and  income,  see  note,  16  L.  R.  A.  461. 


rison  v.  Mexican  R.  Co.,  L.  R.  19  Ef.  358, 
44  L.J.  Ch.  403.  32  L.  T.  82,  23  W.  R.  403. 
—Followed  in  Re  South  Durham  Brew- 
ery Co..  L.  R.  31  Ch.  D.  261,  34  W.  R.  126, 
55  L.  J.  Ch.  179.  53  L-  T.  928. 

Tlie  provisions  of  Pa.  Const,  art.  16,  §  7, 
and  of  the  act  of  April  18,  1874,  regulating 
the  manner  in  which  the  stock  and  indebt- 
edness of  corporations  may  be  increased,  do 
not  apply  to  a  corporation  which  was  in- 
vested by  its  charter,  before  the  Constitution 
was  adopted,  with  unrestricted  power  to 
make  such  increase,  and  accepted  the  bene- 
fit of  no  legislation  since  1874.  And  this 
though  the  corporation,  by  accepting  legis- 
lation in  1868,  subjected  itself  to  the  act  (A 
May  3,  1855,  ".nd  the  constitutional  amend- 
ment of  1857.  Gloninger  v.  Pittsburgh  &» 
C.  R.  Co.,  46  Am.  &>  Eng.  R.  Cas.  276.  139 
Pa.  St.  13,  21  All.  Rep.  211.— Distinguish- 
ing Pennsylvania  R.  Co.  v.  Duncan,  iii  Pa. 
St.  352 ;  Lewis  v.  Hollahan,  103  Pa.  St.  425 ; 
Pennsylvania  R.  Co.  v.  Bowers,  124  Pa.  St. 
183.  Following  Williamsport  Pass.  R. 
Co.  V.  Williamsport,  120  Pa.  St.  i ;  Hays  v. 
Com.,  82  Pa.  St.'  523 ;  Ahl  v  Rhoads,  84 
Pa.  St.  319  ;  Lewis  v.  Jeffries,  86  Pa.  St.  340. 

A  corporation,  organized  under  Wis.  Rev. 
St.  ch.  87,  may  increase  its  capital  stock  in 
the  manner  prescribed  by  section  1826 
without  prejudice  to  its  right  to  enforce 
prior  stock  subscriptions.  Port  Edwards, 
C.  &*  N.  R.  Co.  V.  Arpin,  80  Wis.  214,  49 
N.  W.  Rep.  828. 

Such  a  company,  as  soon  as  incorporated, 
may  make  assessments  on  unpaid  stock 
subscriptions,  without  regard  to  the  aggre- 
gate amount  of  capital  stock  subscribed  or 
the  sums  paid  thereon.  Port  Edwards,  C. 
&*  N.  R.  Co.  V.  Arpin,  80  Wis.  214,  49  A'; 
W.  Rep.  828.— Distinguishing  Anvil  Min. 
Co.  V.  Sherman,  74  Wis.  226. 

23.  Notice  to  stockholders  of  in- 
crease. —  A  street-railway  company  is  a 
private  corporation  within  the  meaning  of 
Pa.  Const,  art.  16,  §  7,  nor  can  the  charter 
or  by-laws  of  such  corporation  disregard 
the  constitutional  requirement  of  sixty  days' 
notice  to  stockholders  before  the  company 
may  increase  its  stock  or  debt,  and  such  in- 
crease, based  on  less  notice,  will  be  re- 
strained. Shepp  V.  Norristown  Pass.  R.  Co., 
1  Pa.  Dist.  679. 

24.  Bight  of  holders  of  orlirlnal 
stock  to  subscribe  for  new.— Where  a 
charter  provides  that  in  case  any  subsequent 
inrrea!=o  nf  tho  rnpital  of  the  company  is 


STOCK,  25-27. 


283 


authorized,  sixty  days'  notice  shall  be  given 
of  such  increase,  within  which  time  the 
stockholders  sliall  have  the  privilege  of  tak- 
ing additional  shares,  in  order  to  entitle  a 
stockholder  to  demand  additional  shares  it 
must  appear  that  he  applied  witliin  the 
sixty  days  and  paid  or  tendered  the  cost  of 
the  shares.  (Egan,  J.,  dissenting.)  Harts, 
St.  Charles  St.  R.  Co.,  30  La.  Ann.  758. 

S.  held  the  receipt  of  a  railroad  for  $7500, 
money  advanced,  to  be  repaid  to  him  or  his 
order,  with  interest,  or  received  in  pay- 
ment $10  on  each  share  of  stock  of  the 
company  to  be  issued  to  him  or  his  assigns 
whenever  the  directors  siiould  authorize  the 
issue  of  the  second  million  of  stock.  The 
receipt  was  assigned  to  plaintiff  with  the 
right  to  take  300  shares  of  the  stock  to  be 
issued  us  set  fortli  therein,  to  secure  a  note 
for  $7000,  reciting  that  the  maker  had  de- 
posited the  scrip  wiih  the  right  to  sell  or 
assign  the  same  on  non-payment  of  the 
note.  Tiie  second  million  of  stock  was 
afterward  issued  and  750  shares  issued  to  S. 
on  the  receipt,  300  of  which  were  delivered 
by  him  to  plaintiff  and  the  certificate  sur- 
rendered to  tiie  company.  About  a  month 
previous  to  the  surrender  of  the  receipt  and 
the  delivery  of  the  shares  to  plaintiff,  the 
company  decided  to  issue  70,722  additional 
shares,  but  allotted  no  part  thereof  to  plain- 
tiff as  owner  of  the  300  shares.  Plaintiff 
claimed  that  he  was  entitled  to  562  new 
shares,  as  an  accretion  upon  the  300  shares. 
Held,  that  as  he  was  not  the  owner  of  the 
stock  until  a  month  after  the  additional 
issue,  he  had  none  of  the  rights  of  a  stock- 
holder in  respect  to  it,  and  that  the  sur- 
render of  the  receipt  with  the  indorse- 
ments thereon,  niade  after  the  new  stock 
was  created,  was  no  notice  to  the  company 
of  plaintiff's  rights.  Miller  v.  Illinois  C.  /?. 
Co.,  2\  Barb.  (N.  V.)  312. 

When  new  stock,  that  is  to  share  in  prof- 
its with  existing  stock,  is  issued  by  a  cor- 
poration all  holders  of  the  existing  stock 
have  an  equal  right  to  subscribe  for  their 
P'  ^portionate  part  of  the  new  stock ;  but 
this  rule  does  not  apply  to  original  stock 
bought  in  by  the  corporation  and  held  as 
assets,  and  sold  for  the  payment  of  liabili- 
ties, or  for  the  general  benefit.  State  ex  rel. 
v.  Smith,  48  Vt.  266,  16  Am.  Ry.  Rep.  394. 
—Reviewing  and  distinguishing  Gray 
V.  Portland  Bank,  3  Mass.  364.— Reviewed 
in  Chicago,  P.  &  S.  W.  R.  Co.  v.  Marseilles 
84  III.  643. 


25.  Contract  with  stockholders  as 
to  application  of  new  stock. —  The 
stockholders  of  defendant  company  pro- 
cured an  act  of  the  legislature  authorizing 
the  company  to  issue  so  many  additional 
shares,  not  exceeding  ten  per  cent,  of  its 
original  capital,  "  as  might  be  necessary  to 
enable  the  company  to  provide  for,  and  pay, 
interest  on  the  instalments  paid  in  for  the 
construction  of  the  road  until  it  should  be 
completed  and  put  in  operation."  Held, 
that  the  additional  shares  thus  authorized 
were  to  be  sold  for  money  and  the  payments 
to  the  stockholders  made  in  cash,  and  not 
by  a  transfer  of  shares.  Manice  v.  Hudson 
River  R.  Co.,  3  Duer  (JV.  V.)  426. 

The  manifest  intention  of  the  parties  was 
that  interest  should  continue  to  be  paid  to 
the  subscribers  until  an  income  should  be 
realized  from  the  road  as  an  entirety,  /.  e., 
until  the  completion  of  the  whole  road. 
Manice  v.  Hudson  River  R.  Co.,  3  Duer  (N, 
r.)426. 

20.  Validity  of  subscription  to  new 
stock.  —  Pa.  Act  of  March  24,  1865,  au- 
thorized any  railroad  company  to  issue  such 
additional  shares  of  stock  as  might  be  nec- 
essary to  equip  its  road,  the  stock  to  be  of 
the  same  value  and  stand  on  the  same  foot- 
ing as  the  original  stock.  By  the  act  of 
April  10, 1867,  the  directors  of  any  company 
authorized  to  increase  its  stock,  when  the 
increase  shall  have  been  authorized  by  the 
stockholders,  may  determine  in  what  man- 
ner the  same  may  be  subscribed  and  sold, 
the  amounts  of  the  instalments  and  the 
manner  of  their  payments.  The  stock- 
holders of  a  railroad  resolved  that  the  di- 
rectors should  have  power  to  increase  the 
stock  and  dispose  of  the  same  as  they  might 
deem  advisable.  The  directors  accepted  a 
subscription  for  an  additional  issue  of  stock 
for  the  purpose  of  extending  the  road,  and 
stipulated  that  interest  at  the  rate  of  six  per 
cent,  upon  the  instalments  on  the  stock 
should  be  paid  until  the  completion  of  the 
extension,  with  a  proviso  that  the  new 
stockholders  should  not  participate  in  any 
of  the  profits  theretofore  made.  Held,  that 
such  subscription  was  unauthorized  by  said 
acts  and  the  resolution  of  the  stockholders. 
McManus  v.  Philadelphia  6-  R.  R.  Co.,  58 
Pa.  St.  330. 

27.  Payment  of  bonus  on  increase 
of  stock.  —  A  corporation  chartered  in 
1865,  by  a  special  act  which  conferred  the 
unconditional  "  privilege  of  increasing  its 


i-.\i 


\t 


1 


9M 


STOCK,  28,  29. 


•I 


•H 


capital  stock  from  time  to  time,"  cannot  be 
required,  upon  an  increase  of  its  capital 
stocic,  to  pay  the  bonus  which  by  ihe 
general  act  of  April  i8,  1874,  is  required  to 
be  paid  by  all  corporations  upon  an  increase 
of  capital  stock  under  that  act.  To  require 
such  payment  would  impair  the  obligation 
of  the  contract  contained  in  the  charter, 
within  the  prohibition  of  the  Constitution 
of  the  United  States.  Com.  v.  Erie  &*  W. 
Trans fi.  Co.,  xoj  Pa.  St.  112. 

There  is  an  essential  distinction  between 
a  tax  and  a  bonus.  The  legislative  power 
of  taxation  is  limited  only  by  its  own  sov- 
ereignty ;  a  bonus  implies  a  consideration 
for  something  conferred,  and  where  the 
corporation  receives  nothing  beyond  what 
it  possessed  by  its  charter,  the  legislature 
cannot  exact  adrlitional  consideration.  Com. 
V.  Erie  6h  W.  Transp.  Co.,  107  Pa.  St.  112. 

28.  Remedies  f<>r  invalid  or  irreg- 
ular increase. — Stockholders  who  have 
voted  for  an  increase  of  stock,  and  have 
shared  in  its  benefits,  or  those  who  have 
bought  their  stock  after  the  increase  was 
made,  are  estopped  from  contesting  the 
legality  of  the  increase.  Venner  v.  Atchi- 
son, T.  6^  S.  F.  R.  Co.,  28  Fed.  Rep.  581. 

Though  it  may  be  that  for  the  fictitious 
increase  of  stock  a  writ  of  quo  warranto 
might  issue  against  the  persons  constitut- 
ing the  corporation,  or  that  creditors  might 
call  on  the  stockholders  to  make  good 
the  difTerence  between  the  actual  capital 
and  such  increase,  still  these  are  risks 
voluntarily  assumed  by  a  purchaser  with 
knowledge  of  the  facts  relating  to  such 
issue.  Beitman  v.  Steiner,  98  Ala.  241,  13 
So.  Rep.  87. 

A  declaration  alleging  that  plaintif!,  at 
the  request  of  defendant,  a  railroad  corpora- 
tion, had  conveyed  his  stock  therein  to  a 
third  person,  to  be  held  in  trust  forcertain 
purposes,  and  that  defendant,  in  considera- 
tion thereof,  agreed  with  such  trustee  not 
to  issue  any  additional  stock  without  the 
consent  of  the  contractors  who  were  con- 
structing the  railroad,  but  that  defendant, 
without  such  consent,  had  issued  other 
stock,  whereby  the  value  of  tliat  conveyed 
in  trust  by  plaintiff  had  been  materially 
diminished,  discloses  no  ground  of  action. 
Poor  V.  European  <S^  N.  A.  R.  Co.,  59  Me. 
270. 

A  corporation  voted  to  issue  600  addi- 
tional shares,  and  to  allow  each  stock- 
holder to  take  one  new  share  for  every  two 


shares  already  held  by  him,  provided  he 
should  by  a  certain  day  subscribe  therefor, 
and  pay  a  part  of  the  price,  and  give  notes 
for  the  remainder.  Held,  that  there  was 
no  implied  condition  that  the  whole  num- 
ber of  600  new  shares  should  be  issued ; 
and  that  the  failure  of  the  corporation  to 
issue  that  number  was  no  ground  for  main- 
taining an  action  by  a  stockholder  to 
recover  back  money  so  paid  by  him,  nor 
for  defeating  an  action  on  notes  so  given 
by  him.  Nutter  v.  Lexington  &*  W.  C.  R. 
Co.,  6  Grajf  (Mass.)  85. 

The  holders  of  original  stock  in  a  com- 
pany created  by  the  laws  of  two  other 
states  sued  in  New  York  to  set  aside  an 
issue  of  new  stock  made  by  the  directors, 
and  to  restrain  the  use  of  the  proceeds  of 
the  sale  of  the  stock.  It  appeared  that  the 
legislature  of  one  of  the  states  had  con- 
firmed the  issue,  and  that  the  highest  court 
of  the  other  state  had  decided  that  the 
issue  was  legal  and  valid.  Held,  that  the 
New  York  court  would  not  grant  relief, 
especially  where  it  was  opposed  by  a  large 
majority  of  the  stockholders.  The  powers 
of  the  corporation  must  be  tested  by  the 
laws  of  the  states  where  it  was  created. 
O'Brien  v.  Chicago,  R.  I.  &•  P.  R.  Co.,  53 
Bar6.  (N  V.)  568,  4  Aid.  Pr.  N.  5.  381.  36 
How.  Pr.  24. 

20.  Stock  dividends.'*  — Stock  divi- 
dends are  profits  of  the  corporation  added 
to  the  stock  of  each  corporator  or  stock- 
holder, and  when  actually  made  are  within 
the  meaning  of  the  Pennsylvania  statute 
imposing  a  tax  on  dividends.  Com.  v.  Cleve- 
land, P.  &•  A.  R.  Co.,  29  Pa.  St.  370.  Citi- 
zens' Pass.  R.  Co.  v.  Philadelphia,  49  Pa. 
St.  251.  Com.  V.  Pittsburgh,  Ft.  W.  &»  C. 
R.  Co.,  74  Pa.  S/.  83. 

Under  ordinary  circumstances,  where  a 
company  has  earned  dividends,  and  desires 
to  retain  the  money,  either  for  making  im- 
provements on  its  road  or  for  the  payment 
of  debts,  it  is  no  violation  of  law  to  retain 
it  and  in  lieu  thereof  to  issue  to  the  stock- 
holders a  corresponding  amount  of  stock. 
Howell  V.  Chicago  6-  A\  W.R.  Co.,  51  Bari. 
(N.   V.)  378. 

The  election  to  do  either  rests  with  the 
board  of  directors,  and  if  the  company  has 
the  power  to  increase  its  capital  stock,  for 
any  purpose,  either   mode  of   making  the 

*  Stock  dividends,  see  note,  23  Am.  &  Eng.  R. 
Cas.  48. 


STOCK,  30-33. 


385 


•r, 
es 
as 


increase  is  lawful,  and  is  no  ground  (or  an 
injunction.  Howell  v.  Chicago  ^  N.  W.R. 
Co.,  51  Barb.  (,N.  Y.)  378. 

Wliere  a  corporation  lias  the  power  to  in- 
crease its  capital,  it  is  immaterial  whether 
such  increase  is  made  by  awarding  the  stock 
to  stoci^holdcrs  as  dividends,  in  lieu  of 
money,  retainingthemoney  for  the  purposes 
of  the  company,  or  in  paying  to  the  stock- 
holders the  dividends  in  cash  from  the 
earnings  of  the  company  and  selling  the 
stock  in  the  market,  to  raise  money  for  the 
use  of  the  corporation.  Howell  v.  Chicago 
&>  N.  IV.  A\  Co.,  51  Barb.  {N.  V.)  yj%. 

30.  Reduction  of  capital  stock.— 
It  seems  that  the  reduction  of  the  capital 
stock  of  a  corporation  by  proceedings  under 
N.  Y.  Act  (jf  1878,  ch.  264,  does  not  author- 
ize the  distribution  an'iong  the  stockholders 
of  a  sum  equal  to  the  difference  between 
the  original  and  the  reduced  amount  of 
capital ;  and  such  a  distribution  is  unlawful 
even  where  the  original  capital  was  actually 
paid  in,  unless  it  appears  that  it  is  unim- 
paired. Where,  however,  the  corporation 
has  on  hand  actual  capital  available  for  the 
payment  of  debts,  exceeding  the  amount  to 
which  it  has  reduced  its  stock,  the  excess 
may  be  distributed.  Strong  v.  Brooklyn 
Cross- Town  A'.  Co.,g3  N.  Y.  426.— Follow- 
ing Seeley  v.  New  York  Nat.  Exch.  Bank,  8 
Daly  400,  78  N.  Y.  608. 

The  provision  of  i  N.  Y.  Rev.  St.  602, 
§  2,  proiiibiting  a  corporation  from  depleting 
its  capital  stock  by  payments  to  stock- 
holders, does  not  apply,  as  the  actual  capital 
in  excess  of  the  reduced  amount  ceases  to 
be  capital  stock.  Strong  v.  Brooklyn  Cross- 
Town  Ji.  Co.,  93  N,  Y.  426. 

IV.  TSAH8FERS. 

I.  Right  to  transfer.      Validity. 

31.  Who  may  make  a  valid  trans- 
fer.*— A  transfer  by  a  person  who,  at  the 
time,  holds  no  shares  on  the  books  of  the 
company,  passes  no  title  to  any  shares  of 
stock  in  the  company;  nor  does  it  convey 
any  title  to  stock  subsequently  acquired, 
and  it  cannot  be  made  good  by  a  transfer  to 
the  person  making  the  same  of  stock  subse- 
quently acquired.  New  York  &•  N.  H,  R. 
Co.  V.  Schuyler,  38  Barb.  (N.  Y.)  534  ;  modi- 
fied and  affirmed  in  34  A^.  Y.  30. 


*  Transfers  of  stock  in  equity,  see  note,  22 
Am.  &  Enc.  R.  Cas.  25 


If  one  subscribes  w'thout  authority,  for 
and  in  name  of  another,  to  capital  stock, 
he  thereby  binds  himself  and  becomes  an 
equitable  owner  of  the  stock.  A  transfer 
thereof  from  the  person  in  whose  name  the 
subscription  is  made  is  not  necessary ;  it  is 
sufficient  if  the  stock  be  carried  to  the 
account  of  the  subscriber  on  the  stock 
ledger  of  the  company.  State  ex  rel.  v. 
Smith,  48  Vt.  266,  16  Atn.  Ry.  Rep.  394.— 
Quoting  City  Bank  of  Columbus  v.  Bruce, 
17  N.  Y.  507. 

32.  Power  of  executors  to  trans- 
fer.— One  of  two  executors  cannot  make 
a  valid  transfer  of  railway  shares  or  stock 
registered  in  the  names  of  both,  under  and 
subject  to  the  provisions  of  the  Companies 
Clauses  Act,  1845.  Barton  v.  North  Staf' 
fordshire  R.  Co.,  L.  R.  38  Ch.  D.  458.— Re- 
viewing Taylor  v.  Midland  R.  Co.,  28 
Beav.  287. 

An  executor  fraudulently  transferred  to 
a  bank,  to  secure  a  note  executed  by  the 
testator's  son,  a  certificate  of  stock  standing 
in  the  name  of  the  testator.  The  will  con- 
tained no  limitation  upon  the  executor's 
power  to  dispose  of  the  estate.  The  cor- 
poration recorded  the  transfer  and  issued  a 
new  certificate  to  the  bank.  The  note  not 
being  paid,  the  stock  was  sold  and  a  certifi- 
cate issued  to  the  purchaser.  Held,  that 
the  administrator  de  bonis  non  could  not 
maintain  a  bill  against  the  corporation  to 
compel  it  to  issue  a  new  certificate  for  the 
benefit  of  the  estate.  Crocker  v.  Old  Colony 
R.  Co.,  137  Mass.  417. 

Pa.  Act  of  June  16,  1836,  §  3  (Pamph.  L. 
683),  does  not  confer  power  upon  foreign 
executors  to  transfer  corporate  stock  in 
Pennsylvania,  unless  their  authority  be  de- 
rived from  one  of  the  provinces  in  this 
country  at  the  time  the  act  of  1705  (i  Smith 
33)  was  passed.  Alfonso  v.  Philadelphia  &* 
R.  R.  Co..  8  Rhila.  (Pa.)  86. 

33.  Construction  of  power  of  at- 
torney to  transfer.  —  Where  stock  is 
transferred  under  a  power  of  attorney  at- 
tached to  a  certificate,  which  power  also 
contains  an  assignment  of  the  shares  and 
authority  to  transfer  such  shares,  the  power 
will  not  authorize  the  transfer  of  any  share 
acquired  after  the  date  of  such  power.  Such 
transfer  can  only  operate  to  transfer  stock 
held  by  the  person  named  in  the  certificate 
and  power,  at  the  date  of  the  power;  and 
if  such  stock  was  previously  transferred  by 
him,  no  title  will  pass,  under  the  transfer  of 


f'1 


i 


I 
I 


286 


STOCK,  34,  35. 


1  ■  f 

n 

the  attorney,  to  any  stock  subsequently  ac- 
quired by  such  person.  .V«f  Vorl-  &•  N. 
H.  K.  Co.  V.  Schuyler,  38  Barb.  (N.  Y.)  534; 
see  also  34  N.  Y.  30. 

34.  Transfer  by  holrtor  Indebted 
to  conipaiiy— Lien  on  sbarcs.— A  cor- 
poration cannot  refuse  to  register  a  transfer 
of  stocii  on  the  ground  that  the  transferor 
of  the  stock  is  indebted  to  the  corporation, 
unless  it  has  a  lien  on  the  stuck  at  tiic  time 
of  the  transfer.  A  by-law  passed  two  days 
after  tiie  transfer,  declaring  that  no  trans- 
fers will  be  made  where  the  transferor  is 
indebted  to  the  company,  will  not  give  the 
company  a  lien  nor  the  right  to  refuse  to 
make  the  transfer.  People  ex  rel.  v.  Crockett, 
9  CaL  112. 

Missouri  Act  of  1849,  granting  a  charter 
to  the  Pac.  R.  of  Missouri,  and  the  act  of 
1853,  authorizing  counties  to  sut  scribe  to 
the  stock  thereof,  construed  ;  and  held, 
that  the  company  had  power  to  pass  a  by- 
law forbidding  a  transfer  of  stock  by  hold- 
ers indebted  for  a  balance  on  the  stock,  and 
that  such  a  by-law  was  applicable  to  coun- 
ties so  indeb  ed.  Spurlock  v.  Pacific R.  Co., 
61  Mo.  319. 

An  original  subscriber  to  the  capital  stock 
of  a  railroad  company  incorporated  subject 
to  the  provisions  of  the  General  Railroad  Act 
of  Feb.  19,  1849,  is  not  discharged  from 
liability  for  the  amount  remaining  unpaid 
upon  such  stock  by  transferring  it  to  an- 
other, whether  the  transfer  is  made  in  good 
faith  or  not.  Pittsburgh  <&*  C.  R.  Co.  v. 
Clarke,  29  Pa.  St.  146. 

Under  the  provisos  of  section  7  of  the 
above  act,  no  valid  transfer  of  stock  can  be 
made  by  a  person  indebted  to  the  company, 
without  the  consent  of  the  board  of  direct- 
ors, and  then  no  such  transfer  will  dis- 
charge the  owner  from  any  liability  thereto- 
fore incurred.  The  liability  to  pay  for  the 
amount  of  stock  subscribed  is  an  indebted- 
ness within  the  meaning  of  the  act,  although 
the  instalments  have  not  been  called  in  at 
the  time  of  the  transfer.  It  is  debitum  in 
prasenti  solvendum  infuturo.  Pittsburgh  &* 
C.  R.  Co.  V.  Clarke,  29  Pa.  St.  146. 

A  transfer  of  stock  by  a  person  so  in- 
debted, without  the  action  of  the  board  of 
directors,  is  a  nullity;  and  such  consent 
must  be  evidenced  by  a  recorded  resolution 
of  the  board,  and  cannot  be  proved  by 
parol,  unless  the  written  minute  has  been 
destroyed  or  lost.  Piitiburgh  &*  C.  R.  Co. 
V.  Clarke,  29  Pa.  St.  146. 


All  railroad  companies  incorporated  in 
the  state  by  or  under  special  acts  are  sub- 
ject to  the  regulations  of  the  General  Rail- 
road Act  of  Feb.  19,  1849,  except  in  so  far  as 
such  regulations  are  specially  altered  in  the 
special  acts,  or  are  inconsistent  therewith. 
So  where  a  stockholder  in  a  company  or- 
ganized under  a  special  act  itansfers  his 
shares  while  indebted  to  the  company,  the 
latter  has  a  lien  on  the  shares,  under  the 
general  act,  for  the  amount  of  its  claim. 
A/t.  Holly  Paper  Co.'s  Appeal,  99  Pa,  St. 

5«3. 
35.  Consideration  -  Validity.  —  A 

railroad  company,  nierely  organized,  but 
without  means  or  credit,  purchased  stock  of 
another  company,  giving  its  notes  therefor 
with  sureties,  the  stock  purchased  being 
held  by  one  of  the  sureties  for  indemnity. 
It  filled  to  pay  its  notes  at  maturity,  and 
its  stockholders  prevented  the  making  of 
assessments  or  calls  upon  themselves  to 
provide  a  fund  for  such  payment,  the  stock 
purchased  then  being  of  less  value  than  was 
supposed  when  the  purchase  was  made. 
Thereupon  an  arrangement  was  made  by 
the  concurrence  of  the  purchasing  company 
and  its  sureties,  some  of  whom  were  its 
directors,  whereby  an  association  of  men, 
including  said  sureties,  took,  in  good  faith, 
a  transfer  of  the  stock,  paying  therefor  the 
notes  which  had  been  given  for  it.  //eld, 
that  the  transfer  of  the  stock  was  not  void, 
and  equity  would  not  interfere  to  set  it 
aside  at  the  instance  of  stockholders  who 
had  paid  nothing  upon  their  stock  subscrip- 
tions,    /{ill  V.  Nisbet,  100  /nd.  341. 

The  construction  of  a  railroad  having 
been  undertaken  and  progressed  with,  and 
then  suspended  from  lack  of  means  to  carry 
on  the  work,  and  large  indebtedness  having 
been  incurred,  L.  agreed  to  negotiate  cer- 
tain mortgage  bonds  and  to  complete  the 
road,  upon  condition  that  the  president, 
owner  of  the  greater  part  of  the  stock, 
would  transfer  to  him  a  specified  number  of 
shares  thereof,  being  a  majority  of  the  en- 
tire stock  of  the  company,  and  upon  the 
further  condition  that  he  should  have  abso- 
lute control  and  management  of  thi^  affairs 
of  the  company.  L.  further  agreed  with 
the  president  to  negotiate  a  loan  for  him 
individually  on  his  note  secured  by  the 
pledge  of  the  balance  of  his  stock,  and  that 
he  should  be  paid  a  fair  compensation  for 
his  services  as  president  of  the  company, 
the  amount  to  be  agreed  upon,  and  that  all 


STOCK,  30-38. 


287 


IS 

IC 

ll. 


accounts  between  him  and  the  company,  to 
which  he  was  largely  indebted,  should  be 
audited.  Tlie  transfer  of  the  special  num- 
ber of  shares  was  made  us  agreed.  L.  ad- 
vanced to  the  president  a  part  of  the  loan. 
He  also  negotiated  the  sale  of  the  bonds, 
and  with  the  money  derived  therefrom,  and 
with  additional  means  furnished  by  himself, 
the  road  was  completed  and  fully  equipped. 
L.  also  tendered  to  the  president  the  balance 
of  the  loan,  but  he  declined  it,  being  en- 
gaged in  a  negotiation  to  transfer  his  stock 
and  hand  over  the  control  of  the  company 
to  a  rivil  rurporation,  in  violation  of  his 
agreement  v.ith  L.  On  learning  this,  L. 
Iind  another  person  elected  president.  The 
accounts  between  the  president  and  the 
company  were  not  adjusted,  as  no  sufficient 
data  were  furnished  for  the  purpose.  On  a 
bill  filed  by  the  administratrix  of  the  presi- 
dent to  have  his  transfer  of  stock  to  L.  set 
aside  on  the  ground  that  it  was  obtained  by 
fraud  and  without  consideration  —  held, 
that  the  agreement  by  L.  was  made  in  good 
faith  and  with  a  purpose  to  carry  out  every 
promise  made  therein,  and  his  failure  to  do 
so  was  occasioned  by  no  fault  properly 
chargeable  to  him,  and  did  not  invalidate 
the  transaction.  Healey  v.  Loveridge,  72 
Md.  220,  19  At  I.  Rep.  921. 

The  entire  stock  of  a  street  railway  was 
held  by  two  brothers.  The  charter  pro- 
vided that  there  should  be  three  directors 
who  should  be  stockholders.  In  order  to 
qualify  their  father  as  a  director  they  trans- 
ferred to  him  two  shares.  He  willed  them 
to  his  daughter,  who,after  the  fatlicr's  death, 
acted  as  director.  One  of  the  brothers  be- 
came dissatisfied,  and  filed  a  bill  to  require 
the  daughter  to  reassign  the  shares,  claim- 
ing that  both  the  father  and  she  held  them 
in  trust  for  the  brothers.  Held,  that  the 
transfer  to  the  father  was  not  without  con- 
sideration, and  the  prayer  of  the  bill  could 
not  be  granted.  Kiely  v.  Smyth,  27  Grant's 
Ch.  {U.  C.)22o. 

36.  Transfer  by  way  ot  loan.— De- 
fendant procured  a  loan  of  100  shares  of  rail- 
road stock,  and  gave  a  receipt  stating  that 
the  stock  was  to  be  returned  on  or  before  a 
certain  day,  or  paid  for  at  a  specified  price. 
The  certificate  of  stock  was  transferred, 
with  a  memorandum  on  its  back  authoriz- 
ing defendant  to  transfer  the  stock  on  the 
books  of  the  company,  and  it  clearly  ap- 
peared that  it  was  the  purpose  of  the  loan 
to  enable  defendant  to  put  the  stock  in  cir- 


culation, //eld,  that  it  was  not  necessary 
that  he  return  the  identical  certificate,  but 
the  contract  was  fully  complied  with  by  re- 
storir)g  a  certificate  of  100  shares  of  other 
stock,  where  there  was  no  difference  in  its 
value.   Barclay  v.  Culver,  30  ////«  (A^.  V.)i, 

37.  Bevocutioii  of  transfor.— Where 
a  stockhoMer  deposits  his  certificates  of 
stock  with  tru  <t  vs,  to  enable  the  directors 
to  dispose  of  it,  in  winding  u|)  the  affairs  of 
the  company,  he  remains  the  le^al  owner 
of  the  sto'-k.  The  authority  to  sell  is  rev- 
ocable ii'  any  time  befot  *  disposed  of,  and 
the  stockholder  may  .evoke  it  so  as  to  re- 
tain the  right  to  \  .>te  his  own  stock  at  cor- 
porate elecfi'Jiis,  especially  where  the  direc- 
tors have  obtamed  no  vested  right  to  the 
stock.  IVoodruff  v.  Dubugue  &^  S.  C.  R. 
Co.,  19  Abb.  N.  Cas.  (N.  V)  437,  30  Fed. 
Rep.  91. 

It  was  urged  that  such  transaction  created 
a  trust  for  the  corporation  itself.  Whether 
it  did  or  did  not  depends  upon  whether 
what  is  done  with  the  funds  is  for  the  cor- 
poration. If  the  stock  was  held  for  the  de- 
positors individually,  one  depositor  cannot 
enjoin  the  trustees  from  voting  stock  de- 
posited by  another.  Woodruff  v.  Dubuque 
<S-  S.  C.  R.  Co.,  19  Abb.  N.  Cas.  (N.  K.)  437, 
$0  Fed.  Rep.  91. 

2.  Now  Effected. 

38.  In  general.— A  blank  power  of  at- 
toiitcy,  accompanying  certificates  of  rail- 
road stock,  may  be  filled  up  according  to 
the  agreement  of  the  parties,  and  will  take 
effect  from  date,  though  executed  under 
seal.  Bridgeport  Bank  v.  New  York  &*  N. 
N.  R.  Co.,  30  Conn.  231. 

Stock  received  and  transferred  on  the 
same  day  should,  in  equity,  be  considered 
as  received  before  it  was  transferred,  al- 
though the  numbers  of  the  transfer  may  be 
such  as  to  make  the  transfer  by  the  trans- 
feror appear  earlier  than  the  transfer  to 
him,  unless  it  is  proven  that  such  transfer 
was  made  prior  to  the  one  by  which  the 
stock  was  assigned  to  the  transferor.  New 
York  €r*  N.  //.  R.  Co.  v.  Schuyler,  38  Barb. 
(N.  Y.)  534. 

In  the  absence  of  any  by-law  or  other 
law  of  a  corporation  regulating  the  mode 
in  which  its  stock  shall  be  transferred,  trans- 
fers must  be  made  in  the  manner  prescribed 
by  the  usages  of  the  company  or  set  forth 
in  the  certificates  of  its  stock.  State  ex  ret. 
v,  M elver,  2  So.  Car.  25. 


r !' 


'w. 


lilt 


■,i-fi 


288 


STOCK,  30-41. 


•  'k 


\l 


]    i 


\   i 


Where  a  company's  act  requires  the  con- 
veyance of  shares  to  be  by  writing  duly 
stamped,  and  under  the  hands  and  seals  of 
both  parties,  a  blank  transfer  is  void.  Ht'd- 
blfwhite  V.  M  'Marine,  6  M.  &*  IV.  200,  2 
Railw.  Cas.  51.— APPROVING  Socieie  Gene- 
rale  d*;  Paris  v.  Walker.  L.  R.  ji  App.  Cas. 
20,  55  L.  J.  Q.  B.  169,  54  L.  T.  389. 34  W.  R. 
662. 

The  directors  of  a  company  have  it  in 
their  discretion  to  permit  the  transfer  of 
shares  without  the  production  of  the  certifi- 
cates. Shropshire  Union  R.  (&>»  C.  Co.  v. 
Queen,  L.  R.  7  H.  L.  Cas.  496,  23  W.  R.  709, 
32  L.  T.  283 ;  reversing  L.  R.  8  Q.  B.  435, 
42  L,  J.  Q.  B.  193,  21  W.  R.  953,  ivhich 
reversed  L.  R.  8  Q.  B.  420. 

The  charter  of  a  street- rr.il way  company 
provided  that  the  stock  "  shall  be  transfer- 
able in  such  way  as  the  directors  shall  by 
by-law  direct."  Held,  that  this  did  not  pre- 
vent the  transfer  of  the  stock  until  such  a 
by-law  should  be  passed,  but  left  it  as  at 
common  law,  so  that  it  might  be  transferred 
by  word  of  mouth.  Kiely  v.  Smyth,  27 
Grant's  Ch.  (U.  C.)  220. 

3«.  Negotiability— Transfer  by  de- 
livery.—While  certificates  of  stock  in  rail- 
road and  other  business  corporations  do 
not  possess  in  full  the  qualities  of  commer- 
cial paper,  when  the  transfer  indorsed  there- 
on is  signed  in  blank  by  the  shareholder 
named  therein,  they  become  in  effect,  so 
far  as  the  public  is  concerned,  the  same  as 
if  they  had  been  issued  to  bearer.  Ft/th 
Ave.  Bank  v.  Forty-second  St.  iS^  G.  S.  F.  R. 
Co.,  137  A'.  Y.  231,  33  A^.  E.  Rep.  378,  50  .V. 
Y.  S.  R.  712  ;  n Arming  63  Hun  629,  44  A^. 
Y.  S.  R.  379,  17  A^.   Y.  Supp.  826. 

An  American  railway  company,  having  its 
sole  office  in  the  United  States,  issued 
under  its  seal  certificates  (or  its  c.ipital 
shares.  Each  certificate  purported  to  cer- 
tify that  H.  &  Co.,  who  were  the  company's 
correspondents  in  England,  were  entitled  to 
twenty  shares  in  the  capital  stock  of  the 
company,  "  transferable  only  in  person  or  by 
attorney  on  the  books  of  the  said  company," 
Upon  the  back  of  each  certificate  was  in- 
dorsed a  power  of  transfer  undersea! ;  it  was 
in  effect  an  absolute  transfer  of  the  shares 
represented  by  the  certificate,  followed  by 
an  irrevocable  power  of  attorney  "  to  the 
use  of  the  above-named  assignee,  to  make 
and  execute  all  necessary  acts  of  assign- 
ment and  transfer  of  the  said  stock  on  the 
books  of  the  said  company  " ;  this  was  signed 


by  H.  &  Co.,  the  names  of  the  transferee 
and  of  the  attorney  being  both  left  in  blank. 
The  object  of  the  power  was  to  enable  an 
English  holder  to  appoint  an  attorney  to 
act  for  him  in  America,  where  alone  a  trans- 
fer could  be  registered.  It  was  proved  that 
when  thus  signed  in  blank  these  certificates, 
by  the  usage  of  English  bankers  and  deal- 
ers in  public  securities,  were  transferred  by 
mere  delivery,  and  were  dealt  with  like 
bonds  payable  to  bearer.  Held,  that  the 
certificates  were  intended  to  pass  by  trans- 
fer only  and  not  by  mere  delivery,  and  were 
not  negotiable  instruments.  London  6»  C. 
B.  Co.  V.  London  <&*  R.  P.  Bank,  L.  R.  20  Q. 
B,  D.  232.— Reviewing  Crouch  v.  Credit 
Foncier  of  England,  L.  R.  8  Q.  B.  374. 

40.  Assigiinieiit  by  clccl  with  de- 
Ihery  of  certificate. — Though  the  by- 
laws of  a  corporation  require  all  transfers  of 
shares  to  be  made  in  a  book  to  be  kept  by 
the  treasurer,  an  assignment  of  shares  by 
the  deed  of  the  vendor,  accompanied  by  a 
delivery  of  the  certificates  to  the  vendee,  is 
valid,  without  any  transfer  on  the  books  of 
the  corporation,  not  only  between  the  ven- 
dor and  vendee,  but  against  a  creditor  of 
the  former  who  attaches  the  shares  before 
any  notice  of  the  sale  has  been  given  to 
him  or  to  the  treasurer  of  the  corpora- 
tion ;  but  it  seems  that  the  vendee  could  not 
compel  a  payment  of  dividends,  or  claim  a 
certificate  from  the  corporation,  without 
first  applying  to  have  the  transfer  made  ac- 
cording to  the  by-law.  Sargent  v.  Essex 
Marine  R.  Corp.,  9  Pick.  (Mass.)  202. 

Under  the  provisions  of  the  Companies 
Clauses  Consolidation  Act,  1845,  a  deed  of 
transfer  of  shares  or  stock  does  not  pass  the 
legal  interest  to  the  transferee  until  it  has 
been  delivered  to  the  secretary  of  the  com- 
pany. If  he  returns  it  because  it  does  not 
comply  with  the  requirements  of  the  act  it  is 
to  be  considered  as  not  delivered  to  him. 
Nanney  v.  Morgan,  L.  R.  37  Ch.  D.  346 ; 
affirming  L.  R.  35  Ch.  D.  598. 

41.  Necessity  of  transfer  on  books 
of  company.— Shares  of  bank  stock  are 
only  assignable  on  the  books  of  the  com- 
pany. Union  Bank  \.  Laird,  i  Wheat.  {^U. 
S.)  390.  —  Distinguished  in  Baltimore 
City  Pass.  R.  Co.  v.  Sewell,  35  Md.  238. 

Certificates  of  stock  in  a  railway  com- 
pany, unlike  negotiable  paper,  can  only  be 
assigned  by  an  act  of  the  company,  or  in  pur- 
suance of  a  by  law.  Hall  v.  Rose  Hill  &»  E. 
Road  Co.,  70  ///.  673. 


^■'M 


STOCK,  42-44. 


The  members  of  an  association  organ- 
ized to  construct  a  street  railway  having 
become  entitled,  by  act  of  incorporation,  to 
stock  in  the  corporation,  assignees  of  the 
shares  of  one  of  the  original  associates 
sued  the  corporation  for  its  refusal  to  issue 
certificates  of  stock  to  them  in  lieu  of  other 
shares.  Held,  that  the  transfer  from  the 
assignor,  although  not  made  on  the  books 
of  the  association,  passed  his  title  and  in- 
terest in  the  shares.  Baltimore  City  Pass, 
R.  Co.  V.  Sewell,  35  Md.  S38.— Distinguish- 
ing Fisher  v.  Essex  Bank,  5  Gray  (Mass.) 
378;  Blanchard  w.  Dedham  Gas  Light  Co., 
12  Gray  215:  Union  Bank  v.  Laird,  2 
Wheat.  (U.  S.)  390;  Pinkerton  v.  Man- 
chester &  L.  R.  Co.,  42  N.  H.  427. 

A  corporate  by-law  prohibiting  the  trans- 
fer of  stock  except  by  a  formal  entry  on  its 
books  will  not,  in  the  absence  of  a  consti- 
tutional or  statutory  prohibition,  render 
invalid  a  conveyance  by  a  transfer  of  the 
stock  certificate.  Such  transfer  is  good 
against  an  execution  creditor  of  the  stock- 
holder who  had  no  notice  of  the  transfer 
when  the  execution  was  levied,  but  was 
notified  thereof  before  he  purchased  the 
stock  at  a  sale  under  the  execution.  Wil- 
son V.  St.  Louis  &•  S.  F.  R.  Co.,  108  Mo.  588, 
18  5.  W.  Rep.  286. 

Where  the  stock  of  a  corporation  is,  by 
the  terms  of  its  charter  or  by-laws,  trans- 
ferable only  on  its  books,  the  purchaser  re- 
ceiving a  certificate  with  power  of  attorney, 
etc.,  gets  the  entire  interest  of  the  seller, 
with  all  his  rights.  Such  purchaser,  neglect- 
ing to  have  the  transfer  made  on  the  books 
of  the  corporation  until  after  such  stock  is 
transferred  to  a  bona  fide  holder  without 
notice,  loses  his  right  to  demand  and  have 
the  transfer  thereof  made  to  him.  But  the 
corporation  would  be  liable  to  the  holder  of 
such  certificate  for  permitting  the  stock  to 
which  he  was  entitled  to  be  transferred  to 
another,  etc.,  because  it  had  constructive 
notice  of  these  outstanding  certificates. 
New  York  &*  N.  H.  R.  Co.  v.  Schuyler,  34 
A^.  Y.  30;  modifying  38  Barb.  5  .—Fol- 
lowing Bissell  V.  Michigan  S.  &  »I.  L  R. 
Co.,  22  N.  Y.  258.  Quoting  Bridgeport 
Bank  v.  New  York  &  N.  H.  R.  Co.,  30 
Conn.  270.  Reviewing  Pollock  v.  Na- 
tional Bank,  7  N.  Y.  274. 

42.  Powers  and  duties  of  transfer 
agent.— If  the  purchasei  of  stock  of  a  rail- 
way company  applies  to  procure  a  transfer 
of  the  same  to  him,  and  the  directors  order 
7  D.  R.  D.— 19 


the  transfer  to  him,  and  new  certificates  to 
be  issued  to  him,  he  will  become  an  inno- 
cent holder,  if  he  acts  in  good  faith ;  and 
the  company  will  be  estopped  to  deny  that 
the  stock  thus  issued  is  valid.  But  if  the 
secretary  of  a  railway  company  issues  new 
certificates  of  stock  to  one  claiming  to  have 
purchased  shares  therein,  without  taking 
up  or  canceling  the  original,  the  new  cer- 
tificates will  be  invalid.  Hall  v.  Rose  Hill 
&>  E.  Road  Co.,  70  ///.  673. 

The  transfer  agent  of  a  foreign  corpora- 
tion, provided  for  by  N.  Y.  Act  of  1842,  ch. 
165,  has  no  right  to  inquire  whether  the 
transfer  of  stock  to  the  relator  was  merely 
colorable,  or  whether  a  consideration  was 
paid  therefor,  or  as  to  the  occasion  of  the 
transfer.  People  ex  rel.  v.  Paton,  $  A^.  Y,  S. 
R.  316,  20  Abb,  N.  Cas.  172. 

A  corporation  is  the  trustee  of  its  stock- 
holders, and  is  bound  to  proper  vigilance 
that  they  be  not  injured  by  unauthorized 
transfers  of  stock.  Thus,  where  the  signa- 
tures to  powers  of  attorney  for  transfer 
were  genuine,  but  at  the  time  of  the  trans- 
fer were  thirteen  years  old — held,  that  the 
corporation  was  put  on  inquiry,  and  was 
bound  first  to  ascertain  if  the  powers  had 
been  revoked.  Pennsylvania  R.  Go's  Ap- 
peal, 86  Pa,  St.  80. 

3.   Transfer  by  Way  of  Pledge. 

43.  Whether  pledge  or  mortgage. 

— Where  a  stockholder  of  an  incorporated 
company  borrows  money,  and  as  security 
causes  his  shares  to  be  transferred  to  the 
lender  on  the  books  of  the  company  (R.  C. 
§§  1783-S8),  the  transaction  is  a  pledge,  and 
not  a  mortgage,  and  the  lender  has  no  right 
to  sell  or  transfer  the  shares  to  another 
without  demanding  payment  of  the  debtor 
or  giving  him  notice  of  the  intention  to 
sell ;  nor  can  the  lender  sell  at  private  sale 
for  less  than  the  market  vaiue  of  the  shares. 
Nabring  v.  Bank  of  Mobile,  $8  Ala.  204. 

Plaintiff  transferred  to  defendants,  on  the 
books  of  the  corporation,  fifty  shares  of 
stock  in  a  railroad  company-.  The  transfer 
was  absolute  in  its  terms.  At  the  same 
time  plaintiff  gave  defendants  his  note  for 
$2000  borrowed  money,  and  in  the  note  it 
was  stated  that  the  stock  was  deposited  as 
collateral  security.  Held,  that  the  transac- 
tion was  a  pledge,  and  not  a  mortgage,  of 
the  stock.     Wilson  v.  Little,  2  N,  Y.  443. 

44.  Rights  of  pledgee,  generally.— 
Where  stock  is  pledged  for  the  "vedemp- 


:l 


ill 


i! 


■  I 


290 


STOCK,  45. 


tion  of  certificates  of  debt,"  and  the  certifi- 
cates bind  the  debtor  for  the  payment  of 
"the  sum  therein  mentioned  and  interest 
thereon,"  the  stock  is  bound  for  the  pay- 
ment of  the  interest  itself,  and  a  foreclosure 
may  be  decreed  on  default  in  payment  of 
any  instalment  of  interest.  Swasey  v.  North 
Carolina  K.  Co.,  i  Hughes  (U.  S.)  17. 

A  father,  owning  certain  shares  of  stock, 
transferred  them  to  his  son  to  enable  him 
to  become  a  director  in  the  company.  It 
appeared  that  the  transfer  was  but  a  loan. 
A  new  certificate  of  stock  was  issued  to  the 
son,  who  soon  afterward  delivered  the  cer- 
tificate to  his  father,  with  a  blank  transfer 
on  the  back  thereof;  the  shares  were  at- 
tached and  sold  as  the  property  of  the  son. 
Held,  that  the  father  became  a  bona  fide 
purchaser  or  pledgee  for  value,  and  that  the 
transfer  to  him  on  the  back  of  the  certifi- 
cate, signed  in  blank,  constituted  a  power 
of  attorney  witnin  the  meaning  of  Mass. 
St.  1884,  ch.  229.  Andrews  v.  Worcester, 
N.  &»  R.  R.  Co.,  159  Mass.  64,  33  N.  E.  Rep. 
1109. 

Where  stock  is  transferred  under  a  power 
of  attorney  attached  to  a  certificate,  which 
power  also  contains  ai  assignment  of  the 
shares  at  d  authority  to  transfer  such 
shares,  the  power  will  not  authorize  the 
transfer  of  any  share  acquired  after  the 
date  of  the  power.  Such  transfer  can  only 
operate  to  transfer  stock  held  by  the  person 
named  in  the  certificate  and  power,  at  the 
date  of  the  power ;  and  if  such  stock  was 
previously  transferred  by  him,  no  title  will 
pass,  under  the  transfer  ::f  the  attorney,  to 
any  stock  subsequently  acquired  by  such 
person.  New  York  &•  N.  H.  R.  Co.  v. 
Schuyler.  38  Barb.  {N.  Y.)  534. 

In  the  case  of  a  certificate  and  power  of 
attorney  held  by  the  party  to  whom  it  has 
been  pledged,  without  making  a  transfer  on 
the  books  of  the  company,  the  same  rule 
should  be  applied.  Such  certificate  and 
power  will  give  to  the  holder  an  equita- 
ble title  to  any  valid  stock  '.eld  by  the 
person  named  therein,  at  the  date  of  the 
power,  if  he  continues  to  hold  such  stock ; 
but  if  all  the  stock  held  by  the  party  at  the 
date  thereof  has  been  sold  by  him,  then  the 
certificate  has  ceased  to  be  of  any  value, 
and  should  be  canceled.  New  York  <S-  A^. 
H.  R.  Co.  v.  Schuyler,  38  Barb.  (N.  Y.) 
534. 

45.  Bights  of  pledgee  of  fVaudii- 
leutly  issued  stoclc.— If  upon  the  faith 


of  a  regularly  issued  stock  certificate,  a 
purchaser  or  pledgee  of  stock,  which  in 
fact  has  been  fraudulently  and  collusively 
issued  by  officers  of  the  corporation,  ad- 
vances money  or  parts  witli  anything  of 
value,  the  corporation  is  bound  by  way  of 
estoppel  to  indemnify  him,  to  the  extent  of 
his  expenditure,  against  loss  in  consequence 
of  the  falsity  of  the  certificate.  Kister- 
bock's  Appeal,  127  Pa.  St.  601,  18  At  I.  Rep. 
381. 

A  holder  of  such  certificate  who  has  re- 
ceived it  as  collateral  security  for  a  pre- 
existing debt  from  the  person  in  whose 
name  it  was  fraudulently  issued,  being  un- 
injured by  the  falsity  of  the  statements 
which  it  contains,  has  no  claim  upon  it 
which  he  can  enforce  against  the  corpora- 
tion. Kister bock's  Appeal,  127  Pa.  St.  601, 
18  Atl.  Rep.  381. 

Such  a  certificate  is  worthless,  as  a  cer- 
tificate, and  gives  no  rights  of  its  own  force. 
A  transfer  thereof  passes  to  the  transferee 
no  right  or  claim  to  shares  of  stock.  The 
only  right  which  can  exist  upon  it,  as  against 
the  corporation,  is  created  by  the  act  of 
parting  with  a  valuable  consideration  in 
reliance  upon  its  statements.  Kisterbock's 
Appeal,  127  Pa.  St.  601,  18  Atl.  Rep.  381. 

When  such  a  certificate  is  given  in  pledge, 
the  thing  pledged  is  not  shares  of  stock, 
but  merely  a  right  to  call  upon  the  corpora- 
tion for  indemnity  against  any  loss  suffered 
in  consequence  of  reliance  upon  its  repre- 
sentation that  the  person  therein  named  is 
the  owner  of  the  shares  therein  mentioned. 
Kisterbock's  Appeal,  127  Pa.  St.  601,  18  Atl. 
Rep.  381. 

If  a  fraudulent  certificate  is  pledged  by 
one  who  has  no  claim  to  indemnity  thereon, 
and  the  pledgee  receives,  in  settlement 
of  his  claim  to  be  indemnified  for  his 
advances  made  on  the  pledge,  genuine 
shares  of  stock,  surrendering  the  spurious 
shares  so  pledged,  such  genuine  shares  do 
not  become  a  substituted  pledge  in  his 
hands,  but  are  his  absolutely.  Kisterbock s 
Appeal,  127  Pa.  St.  601,  18  Atl.  Rep.  381. 

Wherefore,  a  pledgor  of  such  certificate, 
who  has  himself  no  claim  to  be  indemnified 
thereon,  is  not  entitled  to  recover  from  his 
pledgee,  who  advanced  money  to  him  on 
faith  of  it,  any  part  of  what  the  latter  may 
have  received  from  the  corporation  upon  his 
claim  for  indemnity,  although  such  claim 
may  have  been  paid  in  genuine  shares  which 
afterwards  increased  in  value  to  an  amount 


STOCK,  40-61. 


291 


exceeding  the  debt  of  t4ie  pledgor  to  the 
pledgee.  Kisterbock's  Appeal,  127  Pa.  St. 
601.  18  Atl.  Rep.  381. 

40.  Pledge  by  trustees  —  Duty  of 
pledgee  to  make  iiuiiiiry.—  A  mort- 
gagee of  stock  cannot  enforce  his  claim  in 
opposition  to  the  cestui  que  trust  of  rail- 
way shares,  although  the  legal  title  stood 
in  the  name  of  the  person  pretending  to 
mortgage  tliem.  Shropshire  Union  R.  <&* 
C.  Co.  V.  Qtteen,  L.  R.  7  H.  L.  Cas.  496,  23 
W.  R.  709,  32  L.  T.  283  ;  reversing  L.  R.  8 
Q.  B.  435.  43  L.  J.  Q.  B.  193,  21  W.  R. 
953,  which  reversed  L.  R.  8  Q.  B.  420. 

Where  shares  stand  in  the  name  of  a 
trustee,  one  who  accepts  such  shares  as 
pledgee  is  bound  to  make  proper  inquiries 
to  discover  the  trust,  and  if  he  fails  to  do  so, 
he  cannot  hold  the  shares  against  the  equi- 
table owner.  Shropshire  Union  R.  &*C.  Co. 
V.  Queen,  L.  R.  7  H.  L.  Cas.  496.  23  \V.  R. 
709,  32  Z.  T.  283 ;  reversing  L.  R.  8  Q.  B. 
435.  42  Z./.  Q.  B.  193,  21  IV.  R.  953,  which 
reversed  L.  R.  8  Q.  B.  420. 

47.  Identical  ecrtifientes  need  not 
be  returned  to  pledgor.— The  pledgee 
of  stocks,  in  the  absence  of  a  specific  agree- 
ment to  the  contrary,  is  entitled  to  transfer 
the  stock  into  his  own  name.  When  so 
transferred  the  particular  shares  become 
indistinguishable  from  the  great  mass  of 
other  stock,  and  the  pledgor  has  no  right  to 
demand  the  return  of  any  particular  certifi- 
cates. It  is  enough  if  the  pledgee  have  at 
all  times  shares  sufficient  in  number  to 
answer  the  pledgor's  demand  upon  repay- 
ment of  the  loan.  Hubbell  v.  Drexel,  15 
Phila.  (Pa.)  478. 

48.  Sale  of  pledge  on  default  «i 
payment.— The  right  to  sell  stock  held  as 
collateral  security  follows  the  pledge,  unless 
restricted  by  positive  stipulation  ;  and  such 
right  may  be  exercised  after  the  debt  is  due, 
upon  a  demand  for  payment  and  notice  of 
the  time  and  place  of  sale  at  public  auction, 
which  in  New  York  city  may  be  at  the 
Merchants'  Exchange.  Any  other  mode  of 
sale  must  rest  upon  express  agreement. 
Brown  v.  Ward,  9  Ho7v.  Pr.  (N.  V.)  497. 

49.  Pledgor's  remedy  for  couver- 
sion  by  pledgee.  —  Although  a  stock- 
holder, whose  shares  have  been  duly  trans- 
ferred on  the  books  of  the  company,  as 
security  for  a  debt,  may  not  have  such  legal 
title  as  will  enable  hin  to  maintain  trover 
against  the  pledgee  for  unauthorized  sale, 
he  may  maintain  a  special  action  on  the 


case  ;  and  a  count  in  case  may  be  added  to 
the  complaint  in  trover  by  amendment. 
Nabring  v.  Bank  of  Mobile,  58  Ala.  204. 

4.  Sales  of  Stock 

50.  The  contract— ]fower  to  sell.*— 

The  indorsement  on  the  back  of  an 
agreement  for  the  sale  and  surrender  of 
stock  to  a  railway  company  on  a  certain 
contingency,  by  the  contractor  to  build  the 
road,  giving  his  assent  thereto,  upon  certain 
conditions,  and  agreeing  to  take  the  stock 
in  case  of  its  surrender,  does  not  make  him 
a  purchaser,  or  affect  in  any  degree  the  sale 
to  the  company;  and  the  terms  of  his  con- 
sent will  not  bind  the  party  agreeing  to 
sell,  he  being  no  party  to  the  contract. 
Chica!;:o,  P.  &^  S.  IV.  R.  Co.  v.  Marseilles. 
84  ///.  145,  16  Am.  Ry.  Rep.  442. 

A  company  intending  to  apply  to  the  leg- 
islature for  the  rijjht  to  construct  its  road 
on  a  shorter  line  than  that  authorized  by  its 
charter  may  make  a  valid  contract  for  the 
sale  of  its  stock,  conditioned  upon  the 
change  being  made,  before  the  authority 
is  obtained  from  the  legislature.  Pof\..^e 
County  Sup'rs  v.  Wisconsin  C.  R.  Co.,  121 
Mass.  460. 

51.  Validity  —  False  representa- 
tions.— Statements  of  the  president  of  a 
railroad  corporation,  to  induce  a  person  to 
purchase  stock  in  the  corporation,  that  the 
corporation  was  able  to  lay  its  track  and 
provide  rolling  stock  and  pay  all  bills  con- 
tracted, and  that  its  Ftock  was  not  for  sale, 
and  could  not  be  bought  anywhere  but  of 
him,  are  statements  which  a  jury  would  be 
warranted  in  finding  to  be  representations 
of  fact,  and  not  expressions  of  opinion. 
Teague  v.  Irwin,  127  Mass.  217. 

Under  Hill's  Orcg.  Code,  §  3230,  all  sales 
of  stock  in  a  corporation  subject  the  pur- 
chaser to  the  payment  of  any  unpaid  balance 
due  on  said  stock.  A  debtor  to  the  com- 
pany conveyed  his  stock  to  a  trustee,  to  sell 
the  same  to  any  person  who  would  pay  his 
indebtedness  to  the  corporation  therefor. 
Held,  that  this  was  no  sale,  and  the  trustee 
was  not  such  purchaser  as  would  mcur  a 
liability  under  said  statute.  Powell  \.  Wil- 
lamette Valley  R.  Co.,  15  Or  eg,  393,  15  Pac, 
Rep.  663. 

*  Right  of  one  corporation  to  acquire  or  deal 
in  stock  of  another  otherwise  than  by  subscrip- 
tion, see  notes,  36  An.  St.  Rep,  136  ;  7  L.  R.  A. 
605  ;  9  Id,  650. 


'- 


r' 


292 


STOCK,  62-67. 


If  a  sale  of  stock  by  a  railroad  corpora- 
tion is  otherwise  valid,  it  is  not  vitiated  by 
the  fact  that  the  motive  of  some  of  the 
directors  and  of  the  purchaser  was  to  enable 
the  latter  to  vote  upon  the  stock  in  a  cer- 
tain manner  at  an  approaching  election  of 
directors.  State  ex  rel.  v.  Smith,  48  Vt.  266, 
16  Am.  liy.  Rep.  394. 

62.  Sale  at  less  than  price  flxctl  in 
charter.  —  Wnere  a  charter  divides  the 
company's  stock  into  shares  of  fifty  dollars 
each,  it  is  intended  thereby  to  fix  that  as  its 
selling  price,  and  an  arrangement  by  which 
it  is  sold  at  a  less  price  is  a  fraud  upon  the 
law  and  the  stockholders.  Sturges  v.  Stet- 
son, I  Biss.(U.  S.)  246. 

In  such  case  a  provision  in  the  charter 
giving  the  directors  power  to  sell  the  prop- 
erty of  the  company,  or  any  notes  or  bonds 
belonging  to  it,  does  not  apply  to  sales  of 
capital  stock,  so  as  to  authorize  it  to  be  sold 
at  less  than  its  piir  value ;  neither  does  a 
provision  empowering  them  to  fix  the  time 
and  terms  of  payment  of  subscriptions  to 
stock  give  them  such  power.  Sturges  v. 
Stetson,  I  Biss.  {(/.  S.)  246. 

In  such  case  it  was  urged  that  there  was 
nothing  in  the  charter  which  proliibited  the 
directors  from  selling  stock  at  less  than  its 
par  value.  He/d,  that  no  such  provision 
was  necessary.  Their  authority  was  de- 
rived exclusively  from  the  charter,  and  it 
was  not  necessary  to  prohibit  them  from 
doing  that  which  the  charter  did  not  author- 
ize them  to  do.  Sturges  v.  Stetson,  1  Biss, 
(U.S.)  2^6. 

Although  to  an  innocent  holder  the  com- 
pany would  be  liable  for  stock  thus  issued, 
these  facts  constitute  a  good  defense  to  an 
action  upon  an  executory  contract  for  the 
purchase  of  such  stock.  Sturges  v.  Stetson, 
I  Biss.  {U.  S.)  246. 

63.  Sale  for  less  than  face  value.— 
There  is  nothing  in  the  Colorado  statutes, 
under  which  defendant  corporation  was  cre- 
ated, to  forbid  the  sale  of  stock  at  less  than 
par;  and  where  such  sale  is  not  prohibited,  it 
is  valid  as  between  the  corporation  and  the 
purchaser  of  stock.  Harrison  v  Arkansas 
Valley  K.  Co.,  4  McCrary  (U.  S.)  264,  13 
Fed.  Rep.  522. 

N.  H.  Gen.  St.  ch.  134,  §  8,  prohibiting  a 
corporation  from  selling  or  disposing  of  its 
capital  stock  at  less  than  par,  except  at 
auction  for  non-payment  of  assessments, 
does  not  apply  to  the  holder  of  stock  which 
the  corporation  has  pledged  or  mortgaged. 


Peterborough  R.  Co.  v.  Nashua  &*  L.  R.  Co., 
59  N.  H.  385. 
64.   Construction  of  contracts  of 

sale.— The  owner  of  railroad  stock  executed 
and  delivered  a  paper  stating:  "I  hold  of 
the  stock  of  the  W.  &  H.  railway  company 
$33,250  or  1350  shares,  which  is  sold  to  B. 
and  which,  though  standing  in  my  name, 
belongs  to  him,  subject  to  a  payment  of 
$8000."  Held,  to  be  an  executed  contract, 
passing  the  stock  to  the  purchaser  at  once, 
but  reserving  title  as  security  for  the  $8000. 
Beardsley  v.  Beardsley,  138  U.  S.  262,  11 
Sup.  Ct.  Rep.  318. 

Where  an  agreement  is  entered  into  to 
pay  a  certain  part  of  a  construction  con- 
tract in  the  stock  of  the  company,  without 
any  price  per  share,  or  otherwise,  being 
named,  it  is  an  agreement  to  pay  the  amount 
according  to  the  market  price  of  the  stock ; 
but  if  the  stock  depreciates,  so  that  it  has 
no  money  value,  before  the  contract  is  per- 
formed, the  amount  agreed  to  be  paid  in 
stock  becomes  payable  in  money.  Hart  v. 
Lauman,  29  Barb.  (N.  V.)  410.— Distin- 
guishing Moore  v.  Hudson  River  K.  Co., 
12  Barb.  156. 

55.  When  title  passes.— The  title  of 
the  purchaser  of  stock  in  a  company  is 
complete  against  everybody  but  the  corpo- 
ration, when  the  seller  has  given,  on  the 
scrip,  authority  to  the  proper  officer  to 
transfer  upon  the  books  and  the  purchaser 
has  paid  the  price;  and  the  presumption  is 
at  least /r/wa  /acie  that  the  price  is  paid 
when  the  authority  to  transfer  is  given  and 
the  possession  of  the  scrip  is  delivered. 
Ross  V.  Southwestern  R.  Co.,  53  Ga.  514. 

56.  Warranties.  —  The  transferor  of 
stock,  without  representation  or  specifica- 
tion as  to  the  particular  property  held  by  the 
corporation,  warrants  only  his  title  to  the 
stock,  and  not  the  title  of  the  corporation  to 
the  property  held  by  it.  State  v.  North  La. 
&*  T.  R.  Co.,  34  La.  Ann.  947. 

In  absence  of  fraudulent  concealment  or 
misrepresentation,  failure  of  title  of  the  cor- 
poration to  Its  property  furnishes  no  ground 
for  action  of  nullity  of  transfers  of  stock, 
based  on  error  or  breach  of  warranty.  State 
V.  North  La.  &•  T.  R.  Co.,  34  La.  Ann.  947. 

67.  Bight  to  interest  as  between 
buyer  and  seller.*- When  a  stockholder 
assigns  and   transfers  his  stock  after  two 

*  Transfer  of  stock  1  right  to  dividends,  see 
note,  4  Am.  &  Eng.  R,  Cas.  392. 


STOCK,  58-62. 


293 


years'  interest  has  accrued  thereon,  the 
company  is  bound  to  pay  said  two  years'  in- 
terest to  him,  and  not  to  the  transferee. 
Ohio  V.  Cleveland  &*  T.  /i.  Co..  6  0/iio  S<. 
489. 

58.  Seller's  remedy  for  buyer's 
refusal  to  complete  pnrcliaso.  —  On 
an  agreement  for  the  sale  and  purchase  of 
stoclc  and  a  refusal  by  the  purchaser  to 
take  the  stock,  the  measure  of  damages  is 
ordinarily  the  diflference  between  the  par 
value  of  the  stock  and  its  market  value,  or 
between  it  and  money.  Thrasher  v.  Pike 
County  K.  Co.,  2$  111.  393. 

Where  suit  is  brought  on  an  executory 
contract  for  the  purchase  of  a  certain  num- 
ber of  shares  in  a  corporation  chartered  in  a 
foreign  country,  it  is  competent  for  the  de- 
fendant to  show  th»t  at  the  time  of  making 
the  contract  the  chartci  of  the  company, 
and  all  its  privileges,  had  been  revoked  and 
annulled  by  the  government  of  such  foreign 
country,  without  the  knowledge  of  defend- 
ant at  the  time  the  contract  was  made. 
Kipp  V.  Mitnroe,  18  H(no.  Pr.  (N.  Y.)  383. 

59.  Buyer's  remedy  for  seller's  fail- 
ure to  deliver.— Where  a  construction 
contract  is  to  be  paid  in  the  stock  of  the 
company,  but  the  contract  fixes  no  place  of 
payment,  and  no  tender  of  stock  has  been 
made,  the  contractor  may  recover  the  value 
of  the  stock  without  a  demand.  Boody  v. 
Rutland &*  B.  R.  Co.,  3  Blatchf.  {U.  S.)  25. 

Where  there  is  no  trust  relation  between 
the  parties,  and  no  obligation  to  deliver 
specific  stock,  the  measure  of  damages  for  a 
failure  to  deliver  stock  is  the  market  value 
of  the  stock  on  the  day  it  should  have  been 
delivered,  with  interest  thereon  to  the  time 
of  the  trial.  Huntingdon  Sf  B.  T.  R.  &*  C. 
Co.  V.  Efiglish,  86  Pa.  St.  247.— Limiting 
Montgomery  Bank  v.  Reese,  26  Pa.  St.  143. 

60.  Specifle  performance.— A  ven- 
dor of  railroad  stock,  upon  receiving  a  note 
for  the  stock  sold,  executed  a  receipt  reciting 
tliat  "  said  note  is  given  me  for  the  pur- 
chase of  379J  shares  of  stock  now  held  by 
me  and  to  be  delivered,  upon  payment  of 
Itis  note,  to  said  D."  Held,  that  the  con- 
tract was  a  conditional  sale ;  that  the  only 
equitable  remedy  was  relief  from  the  condi- 
tion, or  specific  performance,  and  when  the 
purchaser  failed  to  pay  for  several  years, 
during  which  time  the  stock  had  greatly  in- 
creased in  value,  specific  performance  should 
be  refused.  Davison  v.  Davis,  \?%  U.  S.  90, 
8  Sup.  Ct.  Rep.  825. 


5.  CoMpelling  Transfer  on  Books. 
Mandamus. 

61.  In  general— Surrender  of  cer> 
tificate.— A  legal  by-  law  of  a  corporation 
which  provides  that  no  shares  of  its  stock 
shall  be  transferred  on  its  books  until  the 
certificate  thereof  has  been  surrendered 
to  its  president,  or  shown  to  be  lost,  is 
binding  on  all  its  stockholders  and  their 
heirs.  Before  the  heirs  of  a  deceased  stock- 
holder can  compel  the  corporation  to 
transfer  shares  or  pay  accrued  dividends 
to  them,  they  must  comply  with  the  re- 
quirements of  the  by-laws.  State  ex  rel\. 
New  Orleans  &'  C.  R.  Co.,  30  La.  Ann.  308. 

The  holder  of  stock  certificates,  either  for 
value  paid  or  for  collateral  security,  has  the 
equitable  title  to  the  stock,  and  on  surren- 
dering the  same  to  the  corporation  in  which 
the  stock  is  held,  may  compel  the  company 
to  issue  new  certificates  to  him,  in  his  own 
name.  Haldeman  v.  Hillsborough  &•  C.  R. 
Co.,  2  Handy  (Ohio)  loi. 

62.  Bight  of  officers  to  withhold 
consent  to  transfer.— Parties  seeking  a 
transfer  of  the  stock  of  a  corporation  must 
comply  with  the  rules  of  the  corporation 
relative  to  such  transfers,  but  where  that  is 
done  the  ofiicers  of  the  company  have  no 
right  to  withhold  their  assent  because,  in 
their  judgment,  the  motives  and  purposes  of 
the.  parties  are  improper,  or  because  the 
transfer  may  affect  injuriously  the  inter- 
ests of  the  company  itself,  or  those  of  some 
other  company.  State  ex  rel.  v.  Mclver,  2 
So.  Car.  25. 

A  mere  notice  to  the  officers  of  the  com- 
pany, from  parties  having  a  beneficial  inter- 
est in  the  stock  sought  to  be  transferred, 
that  the  right  of  the  party  having  the  legal 
title  to  make  the  transfer  is  questioned  and 
will  be  contested,  will  not  justify  the  officers 
in  a  persistent  refusal  to  make  the  transfer 
after  a  reasonable  and  sufficient  time  has 
elapsed  to  enable  the  parties  giving  the 
notice  to  institute  legal  proceedings  to  con- 
test the  right  to  make  such  transfer.  State 
ex  rel.  v.  Mclver,  2  So.  Car.  25. 

One  to  whom  railway  shares  have  been 
conveyed  in  trust  to  pay  the  dividends  to 
the  grantor  for  life,  and  after  his  death  upon 
a  trust  in  favor  of  the  grantor's  niece,  is  not 
entitled  to  have  his  name  entered  on  the 
register  as  a  shareholder  as  a  person  "  enti- 
tled under  the  transmission  "  referred  to  in 
8  &  9  Vict.  c.  16,  §  18,  upon   such   trans- 


hw 


294 


STOCK,  03,  64. 


I»  I 


l^:  I 


mission  bein^'  authenticated  by  a  declara- 
tion in  writing  as  therein  mentioned.  Cope- 
land  v.  North  Eastern  R.  Co.,  6  El.  &•  Bl. 
277,  2  fur.  N.  S.  1 162. 

The  above  statute  applies  only  to  shares 
on  which  a  call  can  be  made,  and  the  com- 
pany is  bound  to  register  a  transfer  of  paid- 
up  preference  shares,  although  calls  on  the 
original  shares,  in  respect  of  which  the  pref- 
erence shares  were  allotted,  arc  unpaid. 
Hubbersiy  v.  Manchester,  S.  &>  L.  li.  Co.,  7 
B.  Sm  S.  54,  L.  A'.  2  Q.  B.  59,  36  L./.  Q.  B. 
33,  15  JV.  A'.  254 ;  affirmed  in  %  B.&*S.  420, 
36  L.J.  Q.  B.  198.  L.  A\  2  Q.  B.  471,  16  L. 

r.  425.  15  iV.Ji.793. 

A  company  incorporated  under  27  &  28 
Vict.  c.  23,  has  not  power  to  refuse  to  allow 
u  transfer  of  shares  of  its  stock  without  as- 
signing a  sufficient  reason  therefor.  Smith 
V.  Canada  Car  Co.,  6  Ont.  Pr.  107.— Re- 
viewing In  re  Guillot,  26  U.  C.  Q.  B.  246. 

63.  When  a  iiiaiidaiiius  sliuiihl  be 
granted. — Mandamus  will  issue  to  compel 
a  transfer  of  stock  by  a  corporation  claim- 
ing that  it  belongs  in  part  to  a  party  ad- 
judged by  a  foreign  court  to  have  no  interest 
therein.  The  La.  court  will  not  go  behind 
the  judgment  to  test  its  correctness.  State 
ex  rel.  v.  Orleans  R.  Co.,  '^  La.  Ann.  312. 

A  company  chartered  by  the  state  is  so 
far  a  public  corporation  that  its  officers  owe 
duties  to  the  public  which  they  may  be 
compelled  by  writ  of  mandamus  to  perform  ; 
among  which  are  their  duties  relative  to  the 
capital  stock  of  the  company,  and  their 
control  of  the  transfer  thereof.  State  ex 
rel.  v.  Mclver,  2  So.  Car.  25. 

Where  the  stock  sought  to  be  transferred 
is  owned  by  a  corporation,  whose  directors, 
being  vested  with  the  necessary  power  to 
that  end,  authorize  the  president  to  sell  it, 
a  contract  of  sale  by  him  shows  a  sufficient 
legal  and  equitable  title  in  the  purchaser  to 
entitle  him  to  the  writ  of  mandamus  to 
compel  the  officers  to  transfer  the  stock  to 
him.     State  ex  rel.  v.  Mclver,  2  So.  Car.  25. 

It  is  no  ground  of  objection  to  the  issuing 
of  a  writ  of  mandamus  to  compel  the  trans- 
fer of  stock  that  the  purchasers  have  joined 
with  the  sellers  in  the  application  for  the 
writ.    Stale  ex  rel.  v.  Mclver,  2  So.  Car.  25. 

Though  it  be  true  that  mandamus  will 
not  lie  unless  the  duty  to  be  performed  is 
one  in  which  the  public  have  an  interest, 
and  not  even  then,  where  the  party  de- 
manding the  writ  has  another  plain  and 
adequate  remedy,  yet  the  duty  of  officers  nf 


a  railroad  corporation  to  permit  the  trans- 
fer of  its  stock  is  one  in  which  the  public 
has  a  sufficient  interest  to  warrant  the  court 
in  issuing  the  writ  to  compel  its  perform- 
ance, and  the  remedy  by  action  against  the 
officers  of  the  corporation  to  recover  dam- 
ages for  their  refusal  to  permit  the  transfer 
is  too  doubtful  and  uncertain  in  its  charac- 
ter to  supersede  the  specific  and  speedier 
remedy  by  mandamus.  State  ex  rel.  v.  Mc- 
lver, 2  So.  Car,  25. 

An  act  of  the  legislature  authorized  a 
county  to  issue  bonds  in  payment  of  a 
"subscription  for  preferred  stock  "  in  a  rail- 
road. Held,  that  a  demand  upon  theicom- 
pany  "  for  certificates  of  preferred  si  >ck  " 
was  sufficiently  definite  to  warrant  a  abse- 
quent  proceeding  by  mandamus  to  compel 
the  company  to  issue  the  certificates,  though 
the  demand  did  not  specify  the  precise 
character  of  the  certificates.  State  ex  rel. 
V.  Cheraw  Sf  C.  R.  Co.,  9  Am.  &*  Eng.  R. 
Cas.  631,  \6  So.  Car.  524. 

Mandamus  lies  to  compel  a  railway  com- 
pany to  register  in  the  name  of  a  married 
woman  shares  of  stock  to  which  she  is  enti- 
tled for  her  separate  use.  Queen  v.  Carnatic 
R.  Co.,  42  L.J.  Q.  B.  169,  L.  R.  8  Q.  B.  299, 
21  W.R.  621,  28  Z.  T.  413. 

Where  the  real  owner  of  stock,  by  allow- 
ing a  third  person  to  hold  the  certificates 
wiiich  are  registered  in  his  name,  enables 
him  to  hold  himself  out  as  the  proprietor 
of  the  stock,  an  innocent  purchaser 'vithni^- 
notice  of  the  trust  is  entitled  to  a  mayif'v      i 
commanding  the  company  to  enter  his  .;  ..1, 
on  the  register.    Queen  v.  Shropshire  V>;io 
R.  &^  C.  Co.,  42  L.  J.  Q.  B.  19*3,  L.  R.  8  .^ 
B.  420,  27  Z..  r.  412,  21  W.  R.  953. 

A  demand  for  the  transfer  of  stock  upon 
the  secretary  and  treasurer  of  a  company, 
and  a  notice  of  facts  served  upon  him  in  the 
name  of  the  company  are  sufficient,  the  court 
being  of  opinion  that  service  and  demand 
upon  the  president  are  not  indispensable. 
Several  demands  to  transfer  the  stock 
having  been  made,  and  delays  and  evasive 
answers  given  without  in  direct  terms  re- 
fusing, the  court  is  of  the  opinion  that  a 
sufficient  refusal  has  been  shown  to  justify  a 
mandamus  to  compel  the  transfer.  Goodwin 
V.  Ottawa  <S-  P.  R.  Co.,  13  U.  C.  C.  P.  254. 

64.  When  a  mandamus  will  be  re- 
fused.—One  who  is  not  proceeding  bona 
fide  for  the  purpose  of  enforcing  his  rights 
as  a  shareholder  is  not  entitled  to  a  writ  of 
mandamus  to  compel  the  secretary  of  the 


STOCK,  05,  66. 


m 


ans- 
blic 
9urt 
>rm- 
the 
am- 
isfer 
rac- 
dier 
Mc- 


company  to  register  a  transfer  of  certain 
shares  to  him.  A'<2r.  v.  Liverpool,  M.  &*  N.- 
upon-T.R.  Co.,  \(> Jur. 9\9,  21  L.J.  Q.  D.  284. 

Where  a  railway  company  has  issued 
certificates  of  shares  to  a  person  wlio  has 
not  been  registered  as  the  holder  thereof, 
mandamus  will  not  He  to  compel  it  to  reg- 
ister as  a  holder  of  such  shares  a  person  to 
whom  it  subsequently  issued  certificates  in 
respect  thereto,  without  clear  proof  that  the 
person  to  whom  the  certificates  were  last 
issued  has  the  better  title.  Reg.  v.  Cham- 
wood  Forest  R.  Co.,  i  C.  <S-  £".  419. 

Where  the  circumstances  under  which 
a  person  becomes  the  purchaser  of  railway 
shares  show  that  he  is  not  proceeding  bona 
fide  for  the  purpose  of  enforcing  the  rights 
of  a  shareholder,  he  is  not  entitled  to  a 
mandamus  to  compel  the  register  of  such 
transfer  in  the  manner  provided  by  8  &  9 
Vict.  c.  16,  §  15.  Reg.  V.  Liverpool,  M.  &* 
N.-upon-T.  R.  Co.,  21  L.  /.  Q.  U.  284,  i6/»r, 

949- 
A  shareholder  made  a  real  and  absolute 

transfer  of  his  shares  for  a  nominal  consid- 
eration to  an  insolvent  person  in  order  to 
avoid  liability  for  future  calls.  The  com- 
pany refused  to  register  the  transfer.  A 
rule  ni'stUiT  a  prerogative  writ  of  mandamus 
to  compel  the  company  to  register  the 
transfer  was  granted.  He/d,  that  inasmuch 
as  the  prosecutor  had  another  specific  and 
sufficient  remedy,  viz.,  by  action  of  man- 
damus, the  prerogative  writ  ought  not  to 
issue,  and  the  rule  must  be  discharged. 
Queen  v.  Lambourn  Valley  R,  Co.,  L.  R.  22 
Q.  B.  D.  463. 

A  purchaser  of  shares  of  stock,  at  a  sale 
for  non-payment  of  an  assessment  thereon,  is 
not  entitled  to  a  writ  of  mandamus  to  the 
officers  of  the  corporation  to  compel  a  trans- 
fer to  be  made  on  its  books  and  a  certificate 
issued  to  him.  His  remedy  is  at  lasv  for  dam- 
ages.   Stackpole  v.  Seymour,  127  Mass.  104. 

A  mandamus  to  compel  a  transfer  of 
stock  will  not  be  granted  where  there  has 
been  no  demand  and  refusal  to  make  the 
transfer;  but  where  the  rules  of  the  com- 
pany require  that  certificates  of  stock  shall 
be  transferred  "in  person  or  by  attorney 
at  the  office  "  of  the  company,  and  it  ap- 
pears that  a  demand  has  been  made  by 
letter,  and  that  the  officers  of  the  company 
peremptorily  refused  to  permit  the  transfer 
to  be  made,  it  is  not  necessary  to  show 
that  the  useless  ceremony  of  appearing  at 
the  office  and  there  demanding  the  transfer 


has  been  observed. 
Iver,  2  So.  Car.  25. 


SMe  ex  ril.  v.  Mc 


6.  Action  for  Refusal  to  Transfer. 

05.  When  an  action  will  He.— An 

action  will  lie  against  a  corporation  for 
wrongfully  refusing  to  issue  certificates  of 
stock  to  n  party  entitled  thereto.  Baltimore 
City  Pass.  R.  Co.  v.  Sewell,  35  Md.  238. 

By  an  act  of  incorporation,  the  members 
of  an  association  organized  to  construct  a 
street  railway  having  become  entitled  to 
stock  in  the  corporation,  assignees  of  the 
shares  of  one  of  the  original  associates  sued 
the  corporation  for  its  refusal  to  issue  cer- 
tificates of  stock  to  him  in  lieu  of  their 
shares.  Held,  that  the  right  of  an  associate 
or  his  assignee  to  sue  for  such  refusal  does 
not  differ  in  principle  from  that  of  an  or- 
dinary assignee  of  stock.  Baltimore  City 
Pass.  R,  Co.  v.  Sewell,  35  Md.  238. 

A  corporation  had  different  transfer  books 
for  different  classes  of  its  stock,  and  stock- 
brokers attached  different  values  to  the 
several  classes,  and  a  subscriber  for  stock, 
when  he  subscribed,  was  told  by  the  officers 
of  the  corporation  that  his  stock  would  be 
transferable  on  a  particular  class  of  books, 
which  was  afterwards  refused.  Held,  that 
this  was  not  a  fraud  which  would  avoid 
the  contract,  but  that  the  remedy  of  the 
stockholder  was  by  an  action  for  damages. 
Lohtnan  v.  New  York&*  E,  R.  Co.,  2  Sandf. 
{N.  K.)  39. 

Permitting  its  books  to  be  used  for  the 
purpose  of  committing  frauds  on  others 
who  are  desirous  of  purchasing  stock ;  issu- 
ing to  such  persons  certificates  of  stock ;  and 
informing  buyers  who  apply  for  information 
in  regard  to  stock,  before  they  pay  for  it, 
that  stock  has  been  transferred  on  the 
books  when  it  has  not,  are  acts  for  which  a 
corporation  should  be  held  responsible. 
New  York  fi-  N.  H.  R.  Co.  v.  Schuyler,  38 
Barb.  (N.  V.)  534. 

00.  When  an  action  will  not  lie. 
— By  charter  the  capital  stock  of  a  corpo* 
ration  was  limited  to  $3,000,000  and  divided 
into  shares  of  $100  each,  transferable  in 
such  manner  as  the  company  should  direct. 
The  entire  stock  was  taken,  and  certificates 
issued  therefor;  and  the  by-laws  of  the 
company  prescribed  that  transfers  of  stock 
should  be  made  on  the  transfer  books  of  the 
company,  and  required  the  certificate  of 
ownership  to  be  surrendered  prior  to  the 
making  of  such  transfer  and  the  issue  of  a 


i 


I 


296 


STOCK,  67-69. 


new  certificate.  The  company  established 
a  transfer  agency,  and  appointed  its  presi- 
dent transfer  agent,  who  was  authorized  and 
accustomed,  on  the  transfer  of  stocit  on  the 
books  in  his  charge  and  the  surrender  of 
the  certificate  therefor,  to  execute  and  de- 
Hver  to  the  transferee  the  usual  certificate, 
stating  that  he  was  entitled  to  the  number 
of  shares  of  stock  specified  tlierein,  trans- 
ferable on  the  books  of  the  company  by 
him  or  his  attorney  on  the  surrender  of  the 
certificate.  The  agent  fraudulently  gave  to 
one  Kyle  a  certificate,  in  the  usuil  form,  for 
eighty-five  shares,  when,  in  fact,  the  latter 
owned  no  stock,  none  stood  on  tiie  books  in 
his  name,  and  no  certificate  for  such  stock 
had  been  surrendered.  Plaintiffs,  in  good 
faith,  and  relying  upon  the  certificate,  made 
a  loan  to  Kyle,  receiving  from  him  the  cer- 
tificate, with  an  assignment  of  the  stock  and 
a  power  of  attorney  to  transfer  the  same. 
In  an  action  by  plaintiffs  against  the  cor- 
poration for  refusing  to  permit  the  stack 
represented  by  the  certificate  to  be  trans- 
ferred on  its  books,  or  to  pay  its  value— ^^/<A 
(i)  that  the  certificate  was  void,  and  that 
plaintiffs  did  not  thereby  acquire  a  right, 
legal  or  equitable,  to  any  stock ;  (2)  that  the 
corporation  was  not  responsible  to  plaintiffs 
for  damages  sustained  by  dealing  upon  the 
faith  of  the  certificate.  Mechanics'  Bank  v. 
New  York  &•  N.  H.  R.  Co.,  13  iV.  K  599; 
reversing  4  Duer  480.  —  Distinguishing 
Kortright  v.  Buffalo  Commercial  Bank,  20 
Wend.  (N.  Y.)  91.  22  Wend.  348 ;  Bank  of  Ky. 
V.  Schuylkill  Bank,  i  Pars.Eq.  Cas.(Pa.)  180. 
—Followed  in  Woodruff  7'.  New  York  &  N. 
H.  R.  Co.,  18  How.  Pr.  (N.  Y.)  419.  Quoted 
in  New  York  &  N.  H.  R.  Co.  v.  Schuyler, 
38  Barb.  (N.  Y.)  534;  Beaver  County  7/.  Arm- 
strong,  44  Pa.  St.  63. 

Plaintiff  bank  was  the  equitable  owner  of 
certain  shares  of  the  capital  stock  of  defend- 
ant railroad  company,  but  the  certificates 
representing  the  shares  were  held  by  a  third 
person,  who  claimed  to  be  the  absolute 
owner.  The  books  of  the  company  showed 
that  such  certificates  were  in  the  name  of 
such  third  person.  Plaintiff,  without  re- 
turning the  certificates,  made  demand  of 
defendant  for  the  transfer  and  delivery  to  it 
of  the  stock.  Held,  that  upon  defendant's 
refusal  to  make  such  transfer,  plaintiff  was 
not  entitled  to  a  judgment  for  the  value  of 
the  stock.  New  London  Nat.  Bank  v.  Lake 
Shore  &"  M.  S.  R.  Co.,  21  Ohio  St.  221. 

67.  Who  may  sue.— By  an  act  of  in- 


corporation, the  members  of  an  association 
organized  to  construct  a  street  railway  hav- 
mg  become  entitled  to  stock  in  the  corpo- 
ration,  assignees  of  the  shares  of  one  of  the 
original  associates  sued  the  corporation  for 
its  refusal  to  issue  certificates  of  stock  to  him 
in  lieu  of  their  shares.  Held,  that  the  assign- 
ees could  sue  in  their  own  names.  Balti- 
more City  Pass.  R.  Co.  v.  Sewell,  35  Md.  238. 

68.  Pleading.— By  an  act  of  incorpo- 
ration, the  members  of  an  association 
organized  to  construct  a  street  railway 
having  become  entitled  to  stock  in  the 
corporation,  assignees  of  the  shares  of  one 
of  the  original  associates  sued  the  corpo- 
ration for  its  refusal  to  issue  certificates  of 
stock  to  him  in  lieu  of  their  shares.  Held, 
that  where  the  declaration  avers  an  assign- 
ment under  seal,  accompanied  by  a  delivery 
of  the  certificates  of  stock,  the  court  will, 
on  motion  in  arrest  of  judgment,  presume 
that  the  assignment  was  made  for  a  bona 
fide  consideration,  and  that  the  jury  so 
found.  Baltimore  City  Pass.  R.  Co.  v. 
Se7uell,  35  Md.  238. 

In  an  action  to  recover  the  interest  on 
shares  of  stock,  the  complaint  must  directly 
allege  that  the  shares  were  of  some  value. 
Burr  all  v.  Bushwick  R.  Co.,T^N.  Y.2\\. 

Plaintiff  sued  to  compel  an  issue  and  de- 
livery of  a  certificate  of  certain  shares  of 
stock  in  defendant  company.  He  set  out 
in  his  complaint  that  the  company  issued  a 
certain  certificate  that  a  third  party  was  en- 
titled to  a  certain  number  of  shares  in  the 
stock  of  the  company  "  upon  a  surrender  of 
this  certificate  at  the  company's  office, 
$1000,"  which  certificate  was  transferred 
and  came  to  plaintiff,  who  was  the  lawful 
owner,  and  that  the  company  had  refused 
to  deliver  said  stock,  and  prayed  a  delivery 
of  the  stock,  or  judgment  for  $1000,  with 
interest.  Held, on  demurrer,  that  the  com- 
plaint did  not  state  a  cause  of  action  for 
$1000  with  interest,  in  the  absence  of  any 
averment  that  the  shares  had  any  value,  or 
that  the  company  was  bound  to  pay  inter- 
est ;  that  a  judgment  for  the  delivery  of  the 
stock  could  not  be  had,  because  the  com- 
plaint asked  for  a  delivery  of  shares  and 
not  a  certificate ;  and  if  it  be  understood 
as  demanding  a  certificate  of  shares,  there 
was  nothing  to  show  that  the  company  un- 
justly refused.  Burrallv.  Bushwick  R.  Co., 
71  N.  V.  211. 

60.  Matters  of  defense. — It  is  no  de- 
fense to  an  action  against  a  corporation  for 


li 


STOCK,  69. 


297 


damages  for  refusing  to  transfer  stock,  that 
plaintiff  acquired  the  same  from  a  prior 
holder  by  an  illegal  gambling  contract, 
when  there  is  nothing  to  show  that  the 
prior  holder  ever  repudiated  the  contract,  or 
made  any  claim  on  the  company  for  the 
sio'  k.  Miller  v.  Houston  City  St.  R.  Co.,  55 
Fed.  Rep.  366. 

Neither  is  it  a  defense  to  such  an  action 
that  the  certificates  of  stock  are  held  by 
plaintiff  as  collateral  security  for  a  debt 
which  is  barred  by  the  statute  of  limitations. 
Stock  so  held  is  a  pledge,  and  the  right  to 
plead  the  statute. is  a  privilege  purely  per- 
sonal to  the  debtor.  Miller  v.  Houston  City 
St.  R.  Co.,  55  Fed.  Rep.  366. 

By  act  of  incorporation,  the  members  of  an 
association  organized  to  construct  a  street 
railway  having  become  entitled  to  stock  in 
the  corporation,  assignees  of  the  shares  of 
one  of  the  original  associates  sued  the  cor- 
poration for  its  refusal  to  issue  certificates 
of  stuck  to  him  in  lieu  of  their  shares. 
Held,  that  a  failure  to  ascertain  the  interest 
of  the  associate  or  his  transferee  at  the 
time  of  the  acceptance  of  the  cliarter  could 
not  affect  the  right  of  either  to  the  stock 
of  the  company  in  lieu  of  their  shares.  Balti- 
more City  Pass.  R,  Co.  v.  Sewell,  35  Md.  238. 

In  such  case  defenses  based  on  the  ground 
of  issuance  of  stock  to  the  assignor  prior  to 
notice  and  demand  by  his  assignee,  or  of  in- 
debtedness of  the  assignor  to  the  associa- 
tion, should  have  been  made  at  the  trial  be- 
low. Baltimore  City  Pass.  R.  Co.  v.  Sewell, 
35  Md.  238. 

The  president  of  a  corporation  signed 
and  left  with  the  treasurer  blank  certificates 
of  stock.  The  stock  was  transferable,  as 
stated  in  each  certificate,  only  by  assign- 
ment on  its  books  upon  the  surrender  of 
outstanding  certificates.  The  treasurer 
fraudulently  signed  and  filled  up  in  the 
usual  form  one  of  the  certificates,  affixing 
the  corporate  seal  thereto,  in  the  name  of 
a  creditor  of  his  for  borrowed  money,  and 
gave  it  to  him  as  security  for  his  debt.  The 
treasurer  owned  no  stock  and  exhibited  no 
oil'er  certificate  thereof  to  the  creditor  and 
made  no  n^nsfer  or  entry  of  the  transaction 
in  any  form  on  the  books  of  the  corporation, 
of  which  he  had  the  custody.  The  creditor 
subsequently  assigned  this  certificate,  as 
security  for  a  loan  from  a  bank,  to  its 
cashier,  who  surrendered  it  and  received  a 
new  one  in  his  own  name  from  the  treas- 
urer.  Upon  payment  of  ihi-  loan  the  casiiier 


assigned  the  new  certificate  to  the  creditor, 
who,  naving  lent  a  further  s-<m  to  the  treas- 
urer, agreed  that  the  certificctr  should  be 
security  for  the  entire  debt.  The  corpora- 
tion afterward  discovered  this  and  other 
frauds  of  the  treasurer,  and  upon  a  demand 
from  the  creditor,  and  upon  his  presenting 
the  certificate,  refused  to  issue  to  him  a  new 
certificate.  Held,  in  an  action  against  the 
corporation  to  recover  damages  caused  by 
such  refusal,  that  the  creditor  did  not  exer- 
cise due  care  in  taking  the  certificate,  and 
could  not  maintain  the  action.  Farrington 
v.  South  Boston  R.  Co.,  150  Mass.  406,  23  A^. 
E.  Rep.  109.  — Distinguishing  Allen  v. 
South  Boston  R.  Co.,  150  Mass.  200. 

A  county  subscribed  for  250  shares  r«f 
stock  amounting  to  $25,000,  and  paid  to  the 
company  on  the  subscription  $1 7,000.  After- 
wards the  county  court,  on  what  purported 
to  be  the  order  or  request  of  a  majority  of 
the  taxpayers,  transferred  to  A.  135  shares, 
and  as  no  proper  certificates  had  issued  to 
the  taxpayers,  the  transfer  was  made  by  the 
court.  In  suit  against  the  company  for  re- 
fusing to  transfer  the  stock  to  A.  and  to 
issue  certificates  therefor — held,  (i)  that  a 
by-law  forbidding  a  transfer  of  stock  by 
holders  indebted  for  a  balance  on  the  stock 
was  lawful,  and  applicable  to  the  county ; 
(2)  the  payment  of  $17,000  was  not  a 
full  payment  of  the  135  shares,  but  a  pay- 
ment pro  rata  upon  all  of  the  250  shares, 
and  the  county  was  still  indebted  to  the 
company  for  a  portion  of  each  share,  and  it 
was  not  obliged  to  make  the  transfer  or 
issue  the  certificates.  Spurlock  v.  Pacific  R. 
Co., 61  Mo.  319. 

In  an  action  to  compel  defendant,  a  rail- 
road corporation  organized  under  the  laws 
of  New  York,  to  issue  to  plaintiff  certain 
shares  of  stock  in  exchange  for  certifi- 
cates purchased  by  him  in  open  market,  by 
their  terms  entitling  the  holder  to  such 
shares,  the  following  facts  appeared  :  The 
full  amount  of  stock  called  for  by  defend- 
ant's articles  of  incorporation  had  been 
issued  by  it;  the  certificates  in  question 
were  issued  by  its  president  under  the  au- 
thority of  its  executive  committee.  The 
trial  court  found,  upon  sufficient  evidence, 
that  the  issue  of  the  certificates  was  not  au- 
thorized or  ratified  by  defendant's  board  of 
directors,  and  that  plaintiff  was  not  a  pur- 
chaser in  good  faith  for  full  value.  Held, 
that  plaintiff  was  not  entitled  to  the  relief 
sought.     Ryder  v.  Bushwick  R.  Co.,  134  N. 


'i  I 

II 


I 


u 


298 


STOCK,  70-74. 


y.  83.  31  N.  £.  Rep.  251.  4S  N.  Y.  S.  R.  388 ; 
affirming  57  Mun  591,  32  A^.  Y.  S.  R.  1105, 

10  A^.  y.  supp.  748- 

Persons  who  have  received  transfers  of 
spurious  stocic  by  ilie  acts  of  tlie  transfer 
agent,  or  certificates  of  spurious  stocic  from 
tlie  transfer  agent  of  tlie  company,  without 
knowledge  or  ground  of  suspicion  of  fraud 
or  irregularity,  and  have  advanced  money 
thereon,  are  entiiled  to  recover  damages 
against  the  company,  in  a  proper  action. 
New  York  &*  N.  H.  R.  Co.  v.  Schuyler,  38 
Barb.  (N.  Y.)  534. 

Where  one  buys  shares  of  railroad  stock 
at  an  execution  sale,  and  then  brings  suit 
against  the  corporation  to  compel  a  transfer 
of  the  stock  on  tlic  corporation  books,  and 
the  execution  to  him  of  the  proper  certifi- 
cate, the  company  cannot  set  up  the  defense 
that  prior  to  tiie  judgment  under  which  the 
stock  was  sold  it  had  been  duly  assigned  to 
a  third  party,  where  there  is  no  evidence 
that  the  assignment  was  made  before  the 
attachment  was  levied.  Morehead  v.  West- 
ern N.  C.  R.  Co.,  96  N.  Car.  362,  2  S.  E.  Rep. 
247. 

70.  Measure  of  damages.— In  an  ac- 
tion at  law  against  a  corporation  for  refus- 
ing to  issue  or  transfer  stock,  the  plaintifif 
may  claim  in  the  same  suit  the  value  of  the 
stock,  together  with  the  dividends  due 
thereon  ;  and  in  such  a  case  the  measure  of 
damages  is  the  value  of  the  stock  at  the 
time  cf  the  demand,  together  with  the 
dividends  accrued  thereon  at  that  time,  with 
interest  to  the  day  of  trial.  BaHimore  City 
Pass.  R.  Co.  v.  Sewell,  35  Md.  238 

In  an  action  against  a  railroad  company, 
by  the  holder  of  fraudulent  stock,  issued 
and  negotiated  by  its  treasurer,  for  refusal 
to  exchange  it  for  new  stock,  the  jury  may 
allow  the  pluintiti  the  amount  of  money 
advanced  by  him,  with  interest,  or  the 
amount  of  the  value  of  the  stock  at  the 
date  of  the  loan,  with  interest,  the  whole 
amount  not  to  exceed  the  money  loaned 
with  interest.  Tome  v.  Parkersburg  Branch 
R.  Co.,  39  Md.  36,  II  Am.  Ry.  Rep. 
285. 

Where,  upon  a  sale  on  execution  of  shares 
in  a  corporation,  a  certificate  is  demanded 
of  the  corporation  by  the  purchaser,  and  a 
suit  is  brought  for  refur'ng  to  give  such 
certificate,  the  measure  of  damages  is  the 
value  of  the  stock  at  the  time  of  the  de- 
mand, with  interest,  and  not  the  value  at 
the   lime  of  trial,  or  at  any  intermediate 


period.  Pinker  ton  v.  Manchester  &»  L.  R, 
Co.,  42  N.  H.i,2\. 

71.  Costs.— After  the  death  of  a  trustee 
who  held  certificates  of  stock,  one  claiming 
to  be  entitled  to  the  stock  requested  the 
company  to  issue  a  certificate  to  him,  but 
it  refused,  and  refused  to  examine  the  evi- 
dence offered  to  show  that  such  person  was 
entitled  to  the  stock.  The  facts  justified 
the  conclusion  that  the  company  could 
easily  have  satisfied  itself  of  the  truth  of 
the  facts,  and  of  its  obligation  to  make  the 
transfer  demanded,  if  it  had  been  willing  to 
examine  the  evidence  oflpred.  Held,  that, 
under  such  circumstances,  the  company 
should  be  charged  with  the  costs  of  a  suit 
to  compel  such  transfer.  lasigi  v.  Chicago, 
B.  &*  Q.  R.  Co.,  129  Mass.  46. 

7.  Rights  of  Purchasers  and  Transferees. 

72.  Proof  of  title  and  of  transfer. 

—The  holder  of  certificates  of  stock  may 
rely  on  his  possession  as  prima  facie  evi- 
dence of  ownership;  and  if  he  undertakes 
to  prove  title  by  written  transfer,  the  books 
of  the  company  are  the  best  evidence  of  it ; 
but,  on  proof  of  the  fact  that  the  books  are 
in  another  state,  beyond  the  jurisdiction  of 
the  court,  secondary  evidence  of  the  trans- 
fer is  admissible.  Gordonv.  Tweedy,"] \ Ala. 
232. 

73.  Liability  of  couipauy  as  guar- 
antor of  seller's  title.— In  the  absence 
of  fraud  or  collusion,  a  railroad  will  not  be 
liable  as  guarantor  of  a  vendor's  title  to 
stock,  in  case  of  failure  thereof,  by  merely 
allowing  the  transfer  of  the  stock  to  such 
vendor  to  be  made  upon  its  books.  Cen- 
tral R.  &*  B.  Co.  V.  IVard,  37  Ga.  515. 

In  the  absence  of  fraud  or  collusion  on  the 
part  of  a  railroad  company,  the  mere  trans- 
fer of  stock  on  its  books  to  the  purchaser 
thereol,  by  direction  of  the  holder,  will  not 
render  the  company  liable  as  a  guarantor 
of  the  vendor's  title  to  the  stock.  Nutting 
V.  Thomason,  46  Ga.  34. 

74.  Protection  accorded  to  bona 
fide  purchasers,  generally.  —  Where 
the  rightful  owner  of  stock  invests  another 
person  with  the  usual  evidence  of  title 
thereto,  or  an  apparent  authority  to  dispose 
of  the  stock,  he  is  estopped  from  making 
any  claim  thereto  against  an  innocent  pur- 
chaser on  the  faith  of  such  apparent  owner- 
ship or  right  of  disposal.  Walker  v.  De- 
troit  Transit  R,  Co..  47  Mich.  338,  1 1  A^.  W. 
R>p.  1S7. 


STOCK,  75. 


990 


Jt. 


The  presumption  is  that  a  certificate  of 
stock  in  the  usual  form  is  full  paid,  and  a 
purchaser  who  takes  it  without  notice  is  not 
liable  to  creditors,  if  the  company's  repre- 
sentations that  the  stock  is  full  paid  are 
false.  Johnson  v.  Lullman,  15  Mo.  App,  55; 
affirmed  in  88  Mo.  567. 

Where  a  corporation  permits  its  agents  to 
sell  stock  covered  by  certificates  when  there 
is  stock  standing  to  its  credit  sufficient  to 
cover  such  certificates,  it  is  bound  to  make 
good  such  certificates  to  the  extent  of  any 
shares  owned  by  the  corporation,  within  the 
capital  stock  of  the  company;  and  the 
shares  uf  stock  unsold  should  be  applied  to 
the  satisfaction  of  the  oldest  outstanding 
certificate  of  that  character.  Nnv  York  &* 
N.  H.  A\  Co.  V.  Schuyler,  38  Barh.  {N.  Y.)  534. 

If  nn  instalment  of  stock  remains  unpaid 
by  the  original  subscriber,  an  assignee  who 
is  willing  to  comply  witii  the  corporate  reg- 
ulations respecting  the  issue  of  stock  certifi- 
cates and  the  transfer  of  stock  may,  upon 
making  a  proper  tender  of  the  unpaid  in- 
stalment, with  the  interest  thereon,  main- 
tain an  action  in  equity  against  the  corpora- 
tion to  compel  it  to  issue  to  him  a  stock 
certificate.  As  against  such  an  action,  the 
statute  of  limitations  will  begin  to  run  from 
the  time  of  such  tender.  Iron  K.  Co.  v. 
Fink,  22  Am,  &*  Eng.  R.  Cas.  20,  41  Ohio  St. 
321.— Following  Cleveland  &  M.  R.  Co. 
V.  Robbiiis,  35  Ohio  St.  483. 

A  certificate  of  stock  issued  by  a  corpo- 
ration having  legal  power  to  issue  such  cer- 
tificates is  a  continuing  affirmation  that  the 
holder  therein  named  is  the  owner  of  the 
amount  of  stock  specified,  upon  which  a 
purchaser  or  pledgee,  dealing  with  the  per- 
son named  in  tiie  certificate  or  his  assignee, 
lias  a  riglit  to  rely  as  against  the  corporation. 
Ktsterbock's  Appeal,  127  Pa.  St.  601,  18  Atl. 
Rep.  381. 

A  bona  fide  purchaser  of  shares  of  stock, 
for  value,  and  without  notice,  either  from 
the  face  of  the  stock  certificates  or  other- 
wise, that  the  subscription  price  is  unpaid, 
cannot  be  held  by  the  corporation  for  the 
unpaid  subscription  price.  West  Nashville 
Planing-Mill  Co.  v.  Nashville  Sav.  Bank,  86 
Tenn.  252,  6  S.  W.  Rep.  340. 

75.  Bights  of  innocent  purchaser 
of  sput>iis  stock. —  An  innocent  pur- 
chaser of  stock  which  has  been  fraudu- 
lently issued  by  the  directors  of  the  com- 
pany may  rescind  his  contract  and  recover 
back  what  he  paid  for  the  stock  from  the 


individuals  from  whom  he  purchased  it, 
where  they  participated  in  the  fraud  attend- 
ing its  issue.  Fosdick  v.  Sturges,  i  Biss,  {[/, 
S.)  255. 

And  the  right  to  thus  sue  and  recover 
oack  the  amount  paid  for  the  stock  may  be 
exercised  after  the  stock  has  been  regularly 
transferred  to  the  plaintiff  on  the  books  of 
the  company,  where  there  was  nothing  in 
the  transaction  to  awaken  his  suspicion  or 
put  him  on  notice.  Fosdick  v.  Sturges,  1 
Biss.  («/.  5.)  255. 

A  large  amount  of  stock  having  been  thus 
fraudulently  issued,  the  prior  stockholders 
being  entitled  to  reduce  it,  in  the  hands  of 
parties  with  notic«',  to  the  amount  actually 
paid  for,  the  fraud,  in  which  the  vendor  par- 
ticipated, is  material  in  its  efTects  upon  the 
rights  of  the  purchaser.  Fosdick  v.  Sturges, 
I  Biss.  {[/.  5".)  255. 

An  assignee  of  shares  of  stock  in  a  rail- 
road company,  claimed  to  have  been  issued 
in  pursuance  of  a  fraudulent  scheme  to 
which  tiie  assignor  of  such  shares  was  a 
party,  is  not  entitled  to  equitable  relief  as  to 
acts  of  the  directors  and  others  in  relation 
to  other  stock  of  the  same  issue  which  such 
assignee  asks  to  have  canceled.  Brown  v. 
Duluth,  M.  Sh  N.  R.  Co.,  54  Am.  &*  Eng. 
R.  Cas.  219,  S3  Fed.  Rep.  889. 

Spurious  certificates  of  stock  issued  by  an 
officer  of  a  corporation  who  was  clothed 
with  the  apparent  authority  to  issue  them, 
and  which  were  genuine  on  their  face,  and 
which  have  been  sold  and  are  outstanding, 
constitute  a  cloud  upon  the  title  of  the 
genuine  stock  which  may  be  removed  by  a 
court  of  equity.  New  York  &*  N.  H.  R. 
Co.  V.  Schuyler,  ly  N.  Y.  59-,  7  Abb.  Pr.  41 ; 
reversing  i  Abb.  Pr,  417.— Followed  in 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Ohio  Val- 
ley I.  &  C.  Co.,  57  Fed.  Rep.  42.  Quoted 
IN  Barr  v.  New  York,  L.  E.  &  W.  R.  Co., 
23  Am.  &  Eng.  R.  Cas.  745.  96  N.  Y.  444. 
Reviewed  in  Lehigh  Valley  R.  Co.  v.  Mc- 
Farlan,  31  N.  J.  Eq.  730. 

And  the  corporation,  as  the  representa- 
tive of  the  genuine  stockholders,  may  mam- 
tain  an  action  to  remove  such  cloud.  New 
York  &*  N.  H.  R.  Co.  v.  Schuyler,  17  N.  Y. 
592,  7  Abb.  Pr.  41 ;  reversing  i  Abb.  Pr.  417, 

And  where  such  certificates  have  a  com- 
mon origin,  and  their  invalidity  consists  in 
the  same  facts,  all  the  holders  thereof  may 
be  joined  as  defendants  in  one  action, 
though  they  obtained  their  stock  at  difler- 
ciitiimis,  and  under difTerent contracts, and 


J 


300 


STOCK,  70-79. 


I 


claim  to  hold  under  different  rights.  Neiv 
York  A-  A'.  //.  A'.  Co.  v.  Schuyler,  \i  N.  Y. 
592,  7  Abb.  Pr.  41  ;  reversing  1  Abb.  I'r.  417. 

Where  ihc  president  of  a  compiiny  fraud- 
ulently issues  certificates  uf  stuck  properly 
signed  and  sealed,  in  excess  of  the  amount 
authorized  by  law,  persons  who  buy  this 
stock  or  take  it  as  collateral  security  are  en- 
titled to  relief  as  bona  fide  purchasers  on  the 
faith  of  certificates  issued  by  the  company, 
and  wliich  it  cannot  gainsay.  Willis  v.  Fry, 
13  /'/i//<i.  (/\i.)  33.— yuoTiNci  Bank  of  Ky. 
V.  Schuylkill  Bank,  1  Pars.  Eq.  Cas.  351. 

In  an  action  to  recover  back  from  a  stock 
brokei  tlie  price  paid  to  him  for  railway 
scrip  ccitilicatcs,  known  \n  the  market  as 
Kentish  Coast  railway  scrip,  which  the  di- 
rectors of  tiie  company  alleged  not  to  be 
genuine,  the  proper  question  for  the  jury  is 
whether  what  the  broker  intended  to  buy 
was  that  which  was  sold  in  the  market  as 
Kentish  Coast  railway  scrip.  Lambert  v. 
Heat/t,  1 5  i1/.  5-  IV.  486,  4  Nailw.  Cas.  302, 
10  /ur.  481.  \S  L./.  Ex.  297. 

7<(.  Piircliasiiig  ivitli  notice  of,  or 
Hiihjcct  to,  vqiiiticM. — A  stockholder  in 
a  railroad  company,  who  had  agreed  to  sell 
his  stock  to  a  company  which  proposed  to 
purchase  the  road,  transferred  his  stock  to 
a  person  who  was  in  confidential  relations 
with,  and  employed  by,  both  companies. 
Held,  that  although  the  person  purchasing 
the  stock  was  nut  present  at  the  meeting 
authorizing  the  sale,  and  had  no  notice 
tliereof,  yet  the  sale  would  not  be  set  aside 
in  an  action  at  his  instance,  but  that  he 
would  be  required  to  transfer  his  stock  to 
the  purchasing  company  at  its  fair  value,  or, 
at  his  election,  to  take  the  benefit  of  the 
sale  of  the  road.  Young  v.  Toledo  &*  S.  H. 
li.  Co.,  40  A»i.  iS-  Enjr.  A\  Cas.  514,  jSMic/i. 
48s.  43  /V.  JV.  Rep.  632. 

A  certificate  of  corporation  stock  does  not 
partake  of  the  character  of  negotiable  in- 
striiineiits ;  and  a  ^<'//(ty!'^/«  assignee,  with  a 
power  to  transfer  the  stock,  takes  the  cer- 
tificate subject  to  all  equities  existing 
against  his  assignor.  Mechanics'  Bank  v. 
New  York  <&-  A^.  H.  R.  Co.,  13  A^.  Y.  599; 
reversing  4  Duer  480. 

77.  Piii'cliaser  from  one  liaving  no 
title.— Where  an  original  stockholder  sells 
his  stock  and  assigns  and  delivers  the  cer- 
tificate, and  the  purchaser  has  surrendered 
his  certificate  to  the  company  and  received 
another  in  his  own  name,  and  the  proper 
entries  are  made  upon  the  company's  books, 


the  original  certificate  and  the  rights  of  the 
original  holder  are  extinguished,  so  that  a 
subsequent  sale  of  said  stock  by  the  original 
holder  to  a  third  party  passes  no  title.  Hous- 
ton Sf  T,  C,  li.  Co.  v.  Van  Alstyne,  9  Am. 
&•  Eng.  /?.  Cas.  686.  56  Tex.  439. 

78.  ItiKlitH  of  UHHiKuee  prior  to 
trannfer  on  boolcM.— Where  share  certifi- 
cates do  not  contain  the  name  of  the  person 
holding  them  as  an  original  proprietor,  nor 
have  any  indorsement  of  the  transfer  to 
him,  they  do  not  show  a  title  in  him  to  con- 
vey the  shares  under  sections  147  and  i$8, 
c.  107,  7  Wm.  IV.  Hare  v.  Waring.  3  M.  &* 
W.  362.  I  //.  6-  //.  90. 

No  legal  title  passes  to  any  one  who  re- 
ceives from  the  owner  a  certificate  of  shares 
of  stuck,  issued  by  a  corporation,  with  a 
transfer  indorsed  thereon,  and  a  power  of 
attorney  to  transfer  the  same,  even  though 
the  person  to  v  honi  such  stock  was  de- 
livered advanced  money  on  the  receipt 
thereof ;  but  the  party  receiving  the  same 
only  acquires  an  equitable  title,  valid  against 
the  party  named  in  the  certificate,  to  com- 
pel a  transfer  of  such  shares  on  the  books 
of  the  company,  while  the  same  remains  in 
his  name  thereon.  New  York  6-  N.  //.  A'. 
Co.  V.  Schuyler.  38  Barb.  (N.  Y.)  534. 

By  a  statute  of  Connecticut,  passed  in 
1849,  such  an  assignment  is  not  valid  against 
any  but  those  making  it  and  their  repre- 
sentatives; and  such  law  operates  upon  all 
transfers  of  the  stock  of  the  New  York  & 
New  Haven  company,  whether  made  in 
Connecticut  or  New  York.  New  York  &* 
N.  H  A'.  Co.  V.  Schuyler,  38  Barb.  (N.   Y.) 

534. 

70.  Bights  of  purchaser  of  certifi- 
cute  wliere  company  subsequently 
registers  transfer  to  another  with- 
out surrender  of  certificate.— Persons 
holding  certificates  of  stock,  valid  when  is- 
sued, and  accompanied  by  an  assignment  and 
power,  on  which  they  have  advanced  money, 
may  recover  damages  against  the  company 
when  such  certificates  have  been  rendered 
of  no  value  by  the  allowance  of  transfers 
on  the  books  of  the  company  without  re- 
quiring a  surrender  of  the  certificates.  AVa/ 
York  &•  N.  H.  K.  Co.  v.  Schuyler.  38  Barb. 
{N.  Y.)  534. 

A  transfer  on  the  books  of  the  company, 
for  v:k;  e,  to  a  bona  fide  holder,  will  pass  to 
hi'ii  '.lie  shares  so  transferred,  although  at 
th.;  time  the  transferor  had  a  certificate  in 
Ins  name  outstanding  for  the  same,  which 


i 


1 


STOCK,  70. 


801 


;2 


to 

:ifi- 
son 
nor 
to 
:on- 

58. 
&* 


he  did  not  surrender  at  the  time  of  the 
transfer,  and  the  fact  Jiat  the  owner  has 
pledged  the  certificate  to  a  tl  ird  party,  as 
security  for  money  borrowed,  witliout  notice 
tlicrcof  to  the  company,  will  not  afTcct  such 
transfer,  nor  the  title  of  the  transferee  to  the 
stocit  so  transferred.  New  York  &*  N.  11. 
li.  Co.  V.  Si/iuyler,  38  Barb.  (N.  Y.)  534. 

The  by-laws  of  a  corporation  requiring  a 
surrender  of  the  certificate  before  making 
a  transfer  arc  not  binding  on  third  persons, 
so  as  to  affect  their  rights  or  deprive  them 
of  their  properly.  New  York  &»  N,  II.  R. 
Co  V.  Schuyler,  38  liarli.  (N.  Y.)  534. 

A  railroad  company  issued  certain  cer- 
tificates of  stock  reciting  that  they  were 
transferable  on  the  books  of  the  company 
upon  surrender  of  the  certificates.  A  holder 
of  these  certificates  sold  ilie  stock,  and  dc- 
hvercd  to  the  purchaser  the  certificates  witii 
a  blank  power  of  attorney  to  enable  him  to 
have  the  stock  transferred,  but  they  were 
mislaid  for  some  fifteen  years.  In  the  mean- 
time the  original  holder  assumed  to  sell  the 
stock  to  other  parties,  and  the  company  is- 
sued certificates  to  the  purchasers,  on  the 
supposition  that  the  original  certificates  had 
been  lost.  The  first  transferee  having  died, 
his  administrator  applied  for  a  transfer  of 
the  slock  and  for  an  account  of  dividends, 
which  demands  were  refused.  The  by-laws 
of  the  company  provided  that  new  certifi- 
cates should  issue  only  when  the  previous 
certificates  had  been  surrendered  and  can- 
celed, or  upon  proof  that  the  prior  certifi- 
cates had  been  lost,  and  upon  the  giving 
of  an  indemnity  bond.  Held,  that  the 
issue  of  the  new  certificates  to  the  second 
transferees  was  a  breach  of  duty  on  the 
part  of  the  company,  and  it  was  bound  to 
replace  the  slock  or  account  to  the  admin- 
istrator for  its  value.  Cleveland  &*  M.  R. 
Co.  V.  Robbins,  35  Ohio  St.  483.— toLLOWED 
IN  Iron  R.  Co.  v.  Fink,  22  Am.  &  Eng.  R. 
Cas.  20.  41  Ohio  St.  321. 

But  in  such  case  the  company  was  not 
liable  to  account  for  the  dividends  paid  on 
stock  before  it  had  notice  of  its  transfer  to 
the  persons  represented  by  plaintifl.  Untd 
the  company  had  notice  of  the  transfer  it 
was  justified  in  paying  the  dividends  10  the 
one  in  whose  name  the  stock  stood  on  its 
books.  Cleveland &>  M.  R.  Co.  v.  Robbins,  35 
Ohio  St.  483. 

And  the  statute  of  hmitations  did  not 
begin  to  run  until  the  transfer  of  the  stock 
to  the  holders  of  the  original  certificate  was 


refused,  or  they  had  notice  of  the  transfer 
of  the  stock  to  other  parties.  Cleveland  &* 
M.  R.  Co,  v.  Robbins,  35  O/iio  St.  483. 

A  certificate  of  stock  recited  that  it  was 
transferable  by  assignment,  and  that  a  new 
certificate  would  be  issued  to  the  assignee 
upon  the  surrender  of  the  former  one  to  the 
directors.  The  by  laws  of  the  company 
authorized  owners  of  stock  to  transfer  it  by 
written  indorsement  on  the  certificate,  or  on 
a  separate  paper,  and  delivery  to  the  secre- 
tary, together  with  the  original  certificate. 
PlaintifT,  who  was  an  assignee  of  an  original 
stockholder,  and  who  lield  ihc  original  cer- 
tificate, sued  the  company  for  the  value  of 
stock  which  had  been  issued  to  a  subsequent 
assignee  of  the  original  holder.  Plaintiff 
had  not  presented  his  stock  and  transfer  to 
the  secretary  before  the  new  stock  was  is- 
sued.  Held:  (i)  that  the  company  was  es- 
topped from  denying  that  it  would  hold,  for 
the  benefit  of  the  holder  of  the  certificate, 
the  amount  of  stock  therein  specified,  until  it 
was  presented  for  cancellation  and  new  stock 
issued;  (2)  that  the  non-production  of  the 
original  certificate  was  notice  to  the  com- 
pany of  a  superior  outstanding  title  to  the 
stock ;  (3)  that  the  legal  title  to  the  stock 
passed  by  a  transfer  of  the  certificate,  with- 
out its  being  recorded  on  the  books  of  the 
company.  Strange  v.  Houston  &*  T.  C.  R. 
Co.,  4  Am.  &»  Eng.  R.  Cas.  338,  53  Tex.  162. 
—  Distinguished  in  Baker  v.  Wasson,  53 
Tex.  150. 

In  such  case  the  company  was  liable  to  the 
first  assignee  of  the  original  stockholder, 
who  held  the  original  certificate.  In  the 
absence  of  a  charter  or  statutory  provision 
requiring  a  transfer  of  stock  on  the  books  of 
the  company,  as  between  a  stockholder  and 
his  assignee,  to  pass  title  as  against  a  cred- 
itor, the  interest  of  the  creditor  must  be 
subordinate  to  that  of  the  bona  fide  assignee. 
Strange  v.  Houston  <&*  T.  C.  R.  Co.,  4  Am. 
&*  Er^.  R.  Cas.  338.  53  Tex.  162. 

After  a  sale  of  stock  by  the  owner  to 
whom  the  certificate  had  issued,  the  sale  be- 
ing evidenced  by  assignment  and  delivery 
of  the  certificate,  and  after  the  purchaser 
had  surrendered  said  certificate  to  the  com- 
pany and  received  in  lieu  thereof  a  certifi- 
cate in  his  own  name,  the  transaction  being 
properly  evidenced  on  the  books  of  the 
corporation,  the  original  certificate  and  the 
rights  of  the  original  owner  were  extin- 
guished, so  that  a  subsequent  assignment  ot 
said  stock  by  said  original  owner  to  another 


m 


l(; 


:  1; 


30^ 


STOCK,  80,  81. 


party  would  pass  no  right  or  title  thereto. 
Houston  (S-  T.  C.  R.  Co.  v.  Van  Alstyne,  9 
Am.  &*  Etig.  R.  Cas.  686,  56  Tex.  439. 

If  by  mistaiie  a  new  certificate  of  stock 
has  also  issued  to  the  second  assignee,  he, 
not  being  a  purchaser  for  value  and  without 
notice,  will  not  be  entitled  to  the  rights  of 
an  owner  of  stock.  Houston  &-  T.  C.  R.  Co. 
V.  Van  Alstyne,  9  Am.  &»  Eng.  R,  Cas,  686, 
56  Tex.  439. 

After  a  stockholder  had  assigned  his  cer- 
tificate of  stock,  he  presented  an  affidavit  to 
the  corporation  stating  that  he  had  lost  it, 
and  thereby  procured  a  new  certificate, 
upon  giving  a  bond  to  save  tlie  company 
harmless  by  rjason  of  any  loss  that  might 
come  to  it  by  reason  of  such  new  certificate. 
Thereupon  ine  company  refused  to  allow  a 
transfer  of  the  stock  as  represented  by  the 
original  certificate,  and  the  stock  depreciated 
until  it  was  worthless.  Held,  that  an  action 
on  the  case  for  such  refusal  could  be  main- 
tained against  the  original  stockholder,  as 
well  as  against  the  company.  Greenleaf  v. 
Ludington,  15  Wis.  558. 

In  such  case  the  holder  of  the  original 
certificate  brought  a  joint  action  against 
the  company  and  against  the  original  holder 
for  damages,  but  recovered  judgment  against 
the  company  only;  but  it  was  insolvent; 
and  he  then  brought  an  equitable  action 
against  the  company,  claiming  'he  right  to 
be  subrogated  to  the  rights  of  the  company 
in  such  indemnity  bond.  Held:  (i)  that  the 
judgment  in  favor  of  the  individual  defend- 
ant in  the  first  action  was  a  bar  to  the  sec- 
ond suit;  (2)  that  wue  indemnity  bond,  or 
its  proceeds,  was  general  assets  of  the  insol- 
vent comnany,  and  therefore  plaintiff  could 
not  be  subrogated.  Greenleaf  v.  Ludington, 
15  Wis.  558. 

Whe  e  shares  of  stock  stand  upon  tiie 
books  of  a  company  in  the  name  of  certain 
persons,  although  procured  to  be  placed  in 
their  names  by  a  forged  transfer  of  the  cer- 
tificates, innocent  purchasers  to  whom  the 
stock  is  transferred  by  the  registered  hold- 
ers are  entitled  to  claim  compensation  from 
the  company,  which,  upon  discovery  of  the 
forgery,  restores  to  the  register  the  name  of 
the  rightful  owner  and  erases  the  names  of 
such  innocent  purchasers.  In  re  Bahia  &* 
S.  F.  R.  Co..  37  L.J.  Q.  B.  176,  L.  R.  3  Q. 
B.  584,  16  W.  R.  862,  i%L.  T.  467.  9  ^.  6- 
5.  844.— Followed  in  Hartw.  Frontino  & 
B.  S.  A.  G.  Min.  Co..  L.  R.  5  Ex.  1 1 1, 39  L.  J.. 
Ex.  93.  22  L.  T.  JO. 


8.   The  Transfer  Book  and  List  of 
Stockholders. 

80.  Duty  to  keep  record  ofowner- 
sliip  of  shares.— Under  the  laws  of  New 
Hampshire,  a  record  of  the  ownership  of 
shares  must  be  kept  by  railroad  corpora- 
tions in  that  state  and  by  proper  certifying 
officers  resident  therein.  Pinkerton  v. 
Manchester  <S-  L.  R.  Co.,  42  N.  H.  424. 

81.  Inspection  of  transfer  book 
and  list  of  stockliolders.'*' — Mandamus 
will  not  lie  to  compel  a  railway  company  to 
take  the  ceal  off  the  register  of  sharehold- 
ers, on  a  suggestion  that  it  was  affixed 
without  authority  and  contrary  to  sections 
9,  66,  75  and  90  of  the  Companies  Clauses 
Act.  Ex  parte  Nash,  is  Q.  B.  92,  \\  Jur, 
574,19  L.f.  Q.  B.  296. 

The  right  of  inspection  and  perusal  of  the 
register  of  debenture  stockholders,  v/hich 
by  the  Companies  Clauses  Act,  1863,  §  28,  is 
given  to  mortgagees,  bondholders,  deben- 
ture stockholders,  shareholders,  and  stock- 
holders of  the  company,  includes  a  right  to 
make  copies.  Mutter  v.  Eastern  &*  M.  R. 
Co.,  L.  R.  38  Ch.  D.  92. 

A  company  organized  under  N.  Y.  Act  of 
1869,  ch.  917,  by  the  consolidation  of  vari- 
ous foreign  and  domestic  railroad  compa- 
nies, is  a  domestic,  not  a  foreign,  corporation, 
and  therefore  the  act  of  1842,  ch.  165,  to 
compel  transfer  agents  of  foreign  corpora- 
tions to  exhibit  lists  of  their  stockholders, 
has  no  application  to  it.  Sage  v.  Lake  Shore 
Sr*M.  S.  R.  Co.,  70  N.  Y.  220,  i8  Am.  Ry. 
Rep.  555;  dismissing  appeal  from  11  Hun  i. 

Being  a  domestic  corporation,  it  comes 
within  and  is  controlled  by  i  N.  Y.  Rev.  St. 
601,  §  1,  requiring  the  transfer  book  and 
books  containing  the  names  of  stockholders 
of  any  incorporated  company  to  be  open  for 
inspection  for  thirty  days  previous  to  the 
election  of  directors.  Sage  v.  Lake  Shore  &» 
M.  S.  R.  Co.,  70  N.  Y.  220,  18  Am.  Ry.  Rep. 
555;  dismissing  appeal  from  11  Hun  i. 

The  secretary  of  a  corporation,  who  had 
charge  and  possession  of  the  stock  book, 
refused  to  deliver  it  to  his  successor  in 
office;  thereupon  the  directors  proceeded  to 
make  a  new  stock  book  and  stock-transfer 
book.  Held,  that  it  was  proper  for  them  to 
make  a  new  book,  making  it  a  copy  of  the 
old  one  as  far  as  possible,  but  as  to  entries, 
those  made  in  the  old  one  must  govern  in 
preference  to  the  new.    So  where  a  question 

*  See  also  Stockholders,  0-8* 


i 


m 


-^ 


STOCK,  82-84. 


303 


arc  .  as  to  who  were  stockholders  and 
entitled  to  vote,  and  the  old  book  was 
produced,  it  was  error  to  reject  it  and  follow 
the  new  as  to  entries  made  originally  in  the 
old  book.  Schoharie  Valley  Ji.  Go's  Case,  1 2 
Abb.  Pr.  N.  S.  (N.  V.)  394. 

Under  N.  Y.  Laws  1842,  ch.  165,  it  is  the 
absolute  duty  of  the  transfer  agent  in  that 
state,  of  any  moneyed  or  other  corporation 
existing  beyond  the  jurisdiction  of  the 
state,  to  exhibit  at  all  reasonable  times, 
during  the  usual  business  hours,  to  the 
stockholders,  when  required,  the  transfer 
book  and  a  list  of  the  stockholders,  if  in  his 
power  so  to  do.  He  has  no  right  to  inquire 
into  the  motives  and  purposes  of  the  stock- 
holders. People  ex  rel.  v.  Paton,  5  N.  Y. 
S.  K.  313,  20  Ala.  N.  Cas.  195. 

82.  Necessity  of  entry  of  transfer 
to  pass  title  to  shares.— On  the  trans- 
fer of  stock,  the  delivery  will  not  be  com- 
plete until  an  entry  of  such  transfer  is  made 
upon  the  stock  record,  or  proof  be  sent  to 
the  office  for  that  purpose  ;  and  the  omis- 
sion thus  to  perfect  the  delivery  will  be 
prima  facte,  and  if  unexplained  conclusive, 
evidence  of  a  secret  trust,  and  therefore, 
as  matter  of  law,  fraudulent  and  void  as  tu 
creditors.  Pinkerton  v.  Manchester  &*  L. 
R.  Co.,  42  N.  H.  424. 

Where  the  transfer  was  made  at  a  dis- 
tance from  the  ofiice,  and  the  old  certificates 
were  surrendered  and  new  ones  given  by  a 
transfer  agent,  appointed  for  that  purpose 
and  residing  in  a  neighboring  state,  proof 
that  the  proper  evidence  of  such  transfer 
was  sent,  by  the  earliest  mail  communica- 
tion, to  the  keeper  of  the  stock  record,  to 
be  entered,  although  not  received  until  an 
attachment  had  intervened,  will  be  sufficient 
explanation  of  the  want  of  delivery,  and 
such  transfer  will  be  good  against  the 
creditor.  But  where  the  pledge  was  made 
in  Boston,  on  the  eighth  day  of  July,  by  a 
delivery  over  of  the  certificates,  and  nothing 
more  was  done  until  the  third  day  of  the 
following  August,  and  then  the  old  certifi- 
cates were  surrendered  to  tlie  transfer  agent 
there,  and  new  ones  received  from  him,  and 
notice  given  by  the  first  mail  to  the  office 
at  Manchester,  N.  H. — held,  as  against  an 
attachment  made  between  the  obtaining 
the  new  certificates  and  the  notice  to  the 
office,  that  the  possession  was  not  season- 
ably taken,  and  that  the  transfer,  therefore, 
was  not  valid.  Pinkerton  v.  Manchester  &* 
L.  R,  Co.,  42  N.  H.  424,— Djstii^cuished 


IN  Baltimore  City  Pass.  R.  Co.  v.  Sewell,  35 
Md.  238. 

A  transfer  ol  stock  in  a  dividend-paying 
corporation  not  recorded  in  the  record  book 
of  transfers  is  invalid  iigainst  attaching 
creditors  w ithout  notice.  Buttrick  v.  Nashua 
&'L.K.Co.,e2N.  //.  413. 

A  corporation  attaching  the  stock  is  not 
chargeable  with  the  knowledge  of  such 
transfer  possessed  by  one  of  its  directors 
who  takes  no  part  in  causing  and  is  not 
informed  of  the  attaclinient.  Buttrick  v. 
Nashua  &*  L.  R.  Co.,  62  iV.  H.  413, 

83.  Misrepresentations  by  trans- 
fer agents. — Where  a  company  is  bound 
to  keep  transfer  books  for  the  purpose  of 
transferring  stock,  and  on  being  applied  to 
by  persons  about  to  purchase  stock  in  the 
company,  to  know  whether  siiares  have 
been  transferred  to  them,  the  officers  and 
clerks  give  the  information  that  shares  have 
been  transferred,  and  also  give  the  certifi- 
cate thereof,  on  which  statements  money  is 
paid,  when  in  fact  no  shares  have  been 
transferred,  the  party  making  the  transfer 
having  no  stock  to  his  credit  to  dispose  of, 
the  company  is  liable  for  any  loss  sustained. 
New  York  &*  N.  H.  R.  Co.  v.  Schuyler,  38 
Barb.  (N.  Y.)  534. 

The  mere  fact  that  the  transfer  agent  of  a 
corporation  is  in  possession  of  the  transfer 
bQok,  and  is  authorized  to  allow  it  to  be 
used,  does  not  authorize  him  to  make 
representations  as  to  the  ownership  of 
stock,  so  as  to  bind  the  company  where 
such  representations  are  false.  Henning  v. 
New  York  &*  N.  H.  R.  Co.,  9  Bosw.  {N.  Y.) 
283. 

Nor  does  mere  permission,  given  by  the 
agent,  to  enter  upon  such  books  a  transfer 
of  reputed  stock,  there  being  no  new  certifi- 
cate given,  amount  to  a  representation  by 
him  that  the  person  making  the  transfer 
was  the  owner  of  any  genuine  stock.  Hen- 
ning V.  New  York  &•  N,  H.  R.  Co.,  9  Bosw, 
{N.  Y.)  283. 

84.  Transfer  boolc  as  evidence  of 
title. — The  transfer  book  kept  by  a  com- 
pany under  the  Railway  Act,  7  Wm.  IV.,  c. 
107,  §  158,  in  which  the  name  of  a  person  is 
entered  as  transferee,  is  not  sufficient  evi- 
dence of  his  title  as  a  proprietor  of  the 
shares  to  hold  a  person  who  had  contracted 
to  buy  them,  and  who  pleads  in  an  action  on 
such  contract  that  plaintiff  was  not  the  pro- 
prietor of  the  shares,  //are  v.  IVaring,  3 
M.  &*  W.  362,  lIi.&*H.  90. 


304 


STOCK,  85-90. 


If-'  ■■» 


Hip 

m 


'■% 


1 

'1  . 

i 

1      ;•!' 

85.  Removall  of  name  from  list  of 
shareholders.— A  railway  company  is  not 
justified  in  removing  from  the  register  of 
shareholders  the  name  of  a  person  without 
showing  that  the  person  whose  name  is 
substituted  has  a  better  title  to  the  stock, 
and  mandamus  will  lie  to  compel  it  to  re- 
enter on  the  register  the  name  originally 
there.  U^ard  v.  Sou/A  Eastern  R.  Co.,  6 
fur.  N.  S.  890,  29  L.  J.  Q.  B.  177.  2  El.  &^ 
El.  812,  8  W.  A'.  468. 

9.  Forged  and  Fraudulent  Transfers. 

86.  Ltaljillty  of  company  to  owner 
of  shares  tVaiidiilently  transferred. 

— A  company  is  not  liable  in  an  action  on 
the  case  for  the  fraud  of  its  transfer  agent 
in  inducing  a  loan  upon  the  faith  of  false 
and  fraudulent  certificates  of  stock  issued 
by  him,  and  transferred  by  him  on  the 
books  of  the  company,  but  where  no  new 
certificate  is  given  prior  to  making  the  loan. 
Woodruff  V.  New  York  &•  N.  H.  R.  Co.,  18 
How.  Pr.  (N.  y.)  419.— Following  Me- 
chanics' Bank  v.  New  York  &  N.  H.  R.  Co., 
13  N.  Y.  599. 

The  owner  of  slock  intrusted  the  certifi- 
cates with  blank  powers  of  attorney  to  an 
agent  for  safe  keeping,  and  the  agent  fraudu- 
lently transferred  them  to  a  third  party,  who 
in  turn,  without  knowledge  of  the  fraud, 
had  them  transfc'red  to  himself.  Held,  that 
the  owner  could  not  recover  from  the  cor- 
poration for  the  loss.  Pennsylvania  R.  Co.'s 
Appeal.  86  Pa.  St.  80. 

87.  to  owner  whose  name  has 

been  forged.— One  whose  name  has  been 
forged  to  a  certificate  of  stock,  whereby  the 
company  issues  a  new  certificate,  which  is 
innocently  purchased  by  a  third  person,  is 
entitled  to  recover  from  the  company  the 
value  of  the  shares  at  the  time  the  company 
first  refused  to  recognize  him  as  a  share- 
holder, with  interest  from  that  date.  In  re 
Bahia  5-  .V.  F.  R.  Co..  L.  R.  3  Q.  B.  584,  37 
L.  J.  QB  176.  iS  L.  T.  467,  16  W.  R.  862. 
f^B.SfS.  844.  —  Followed  in  Hart  v.  Fron- 
tino  &  B  S.  A.  G  Min.  Co..  L.  R.  5  Ex. 
Ill,  39  L.  J.  Ex.  93,  22  L.  T.  30. 

88.  Defenses.- A  company  which  acts 
with  due  care  and  bona  fide  in  issuing  a  cer- 
tificate of  stock  under  a  forged  transfer  of 
Jin  old  certificate  is  not  estopped  from  test- 
ing the  validity  of  the  former.  Waterhouse 
v.  London  S-  S.   W.  R.  Co.,  41  L.  T.  553. 

89.  Damages.- Where  stock  is  wrong- 
lullv  tninsferred  under  a  forged  power  of 


attorney,  it  seems  that  the  measure  of 
damages  in  an  action  against  the  company 
is  the  market  price  of  the  stock  at  the  time 
the  fraudulent  transfer  waf  made.  Penn- 
sylvania Co.  v.  Philadelphia,  C  &*  N.  R.  Co., 
1 53 /'a.  St.  160,  25  Atl.  Rep.  1043;  affirm- 
ing I  Pa.  Dist.  301. 

90.  Remedy  over  of  company 
against  holder  of  forged  certificate 
or  transfer.- A  firm,  in  good  faith,  ad- 
vanced money  upon  railroad  stack,  pledged 
to  it  under  a  forged  power  to  transfer. 
The  railroad  company,  upon  the  receipt  of 
the  original  certificates  of  the  stock,  in  like 
good  faith  canceled  them  and  issued  new 
ones  in  the  name  of  the  firm.  Held,  that  as 
between  the  firm  and  the  railroad  company 
(the  rights  of  third  parties  not  being  in- 
volved) the  loss  must  fall  upon  the  former. 
Hambleton  v.  Central  Ohio  R.  Co. .  44  Md. 
551.— Reviewing  and  following  Brown 
V.  Howard  F.  Ins.  Co.,  42  Md.  384.— Re- 
viewed IN  Boston  &  A.  R.  Co.  v.  Richard- 
son, 135  Mass.  473. 

The  fact  of  the  stock  issued  to  the  firm 
having  been  subsequently  sold  by  them  to 
third  parties  did  not  affect  the  case,  it 
appearing  that  the  sale  was  made  by  the 
firm  with  knowledge  of  the  forgery.  Ham- 
bleton V.  Central  Ohio  R.  Co.,  44  Md.  551. 

Payment  of  the  dividends  on  the  stock 
to  the  firm  by  the  agents  of  the  railroad 
company  after  the  company  was  informed 
of  the  forgery  had  no  significance,  and 
could  not  estop  the  company,  it  appearing 
that  they  were  not  paid  by  direction  of 
the  company,  but  through  the  mistake  or 
inadvertence  of  the  agent  in  overlooking  or 
failing  to  observe  the  directions  given  by 
the  officers  of  the  company  that  they  were 
in  litigation,  and  were  not  to  be  paid  till 
orderd  by  the  court.  Hambleton  v.  Central 
Ohio  R.  Co.,  44  Md.  551. 

The  issuing  of  the  certificates  to  the  firm 
by  the  railroad  company,  upon  the  faith  of 
the  forged  powers  of  attorney,  did  not  cre- 
ate an  estoppel  against  the  company.  Ham- 
bleton V.  Central  Ohio  R,  Co.,  44  Md.  551.— 
Distinguishing  Knights  t/.  Wiflen,  L.  R. 
5  Q.  B.  660;  Continental  Nat.  Bank  v. 
Commonwealth  Nat.  Bank,  50  N.  Y.  575. 

A  company  may  maintain  an  action 
against  a  person  presenting  a  forged  trans- 
fer or  power  of  attorney,  upon  the  faith  of 
which  It  issues  a  new  certificate,  although 
such  person  acted  in  good  faith.  B.'ston  &' 
A.  R,   Co,  V.  Richardson,   135  Mass.  473.  - 


STOCK   DIVIDENDS— STOCKHOLDERS.  305 

Reviewing  Hambleton  v.  Central  Ohio  R.  Priority  of  mortgage    over   claims   of,  see 

Co..  44  Md.  551.  Mortgages,  118. 

Where  a  corporation  issues  a  new  certifi-  Property  of.  when  may  be  reached  in  attach- 

cate  to  a  person,  upon  the  faith  of  a  forged  ment.  see  Attachment,  etc    28. 

power  of  attorney  to  transfer  the  stock,  and  ^**f//S;i;,''/ ^JJ^/g"  "*'  ^^  '""*  "'' 

afterwards  brings  action  against  such  per-  ^^^^^"^  oYdrrec^rs  to.*  see  Directors,  etc., 

son.  Its   measure  of   damages   is:    (i)   the  55-59. 

amount   paid    by   the    company  for   stock  ^^^^^^  ^^  remedies  of.  as  to  leasing  of  rail- 

bought  by  it  in  good  faiih  to  replace  the  ^^^^  ^^^  Leases,  etc.,  152,  23. 

stock  so  transferred,  although  the  stock  at ^^  reorganization,  see  Reorgan- 

the  time  was  higher  than  at  the  time  of  the  ization,  4-0. 

forgery  ;  (2)  tlie  costs  and  expenses  of  a  suit  _  of  counties  as,  see  Counties,  2. 

against  the  company  by  the  person  whose dissenting,  in  proceedings  for  consoli- 

name  was  forged,  to  compel  an  issue  of  new  dation,  see  Consolidation,  12. 

stock  in  place  of  that  transferred;  (3)  any in  insolvency,  sec  Insolvency,  3. 

dividends  which  the  company  was  obliged to  contract  for  construction  of  roads, 

to    pay   to  the    person  whose    name   was  see  Construction  of  Railways,  18. 

forged.    Boston  &*  A.  R.  Co.  v.  Richardson,  Stock  in  hands  of,  when  exempt  from  taxa- 

1 35  Mass.  473.  *'<"•'  ^"  Taxation,  177. 

Suits  against,  by  receivers,  for  benefit  of 

RTOrir    mvroPWTiS  creditors,  see  receivers.  121. 

8iUl/&   lUVlUJSMUS.  ^hen    limitation  begins   to  run  in  actions 

Nature  and  rights  of  holder,  see  Dividends,  against,  see  Limitations  of  Actions.  21. 

^*  —  qualified    as    directors,    see    Directors, 

Validity  and  efi'ect  of,  see  Stock,  29.  ^-^^^  3, 

STOCKHOLDERS.  I.  BIGHTS  AKD  F0WEB8 306 

Actions  by  creditors  against,  when  barred  '•  ^^  General 306 

by  lapse  of  time,  see  Limitations  of  Ac-  2.  Right  to  Inspect  Corporaf 

noNS,  43.  Books 307 

Acts    that  directors  may  perform  without  3.  Meetings 308 

consent  of,  see  Directors,  etc.,  59.  4.  Right  to  Vote 309 

Answer  in  foreclosure  filed  by,  see  Mort-  5.  Rights  upon  Dissolution ... .  311 

GAGES,  199.  n.  LIABILITY  TO  CREDITORS 31 1 

Assent    of,  to   amendment  of  charter,   see  ,     tjj.^^  //„>i^./ c  *       j..-         ... 

„                  „_                                       '  I.    Upon  Unpatd  itubscrtpttons.  311 

_  J'll^rie 'of  railroad,  see  Sales  of  Rail-  ^-  '^f ^'''''««'  '"■  Statutory  Lia- 

R0ADS.5.  '"^'^y 316 

Competency  of,  as  witnesses,  see  Witnesses.  z.  Partnership    or    Individual 

7,  13.  Liability 319 

Consent  by.  to  acceptance  of  amendment  of  4.  Liability     as     Affected     by 

charter,  see  Directors,  etc..  67.  Transfer  or  Surrender  of 

Contract  with,  as  to  application  of  new  stock.  Shares 320 

see  Stock,  25.  5.  Enforcement  of  the  Liability.  321 

Estoppel  of,  by  consent  to  consolidation,  see  m.  STOCKHOLDERS'  BIOHTS  OF  ACTIOK.  328 

Consolidation,  13.  ,^  /„  General 328 

Levy  of  assessment  on  stock  by,  see  Sub-  ^^  Remedy  against  the  Corpora- 

scRiPTioNs  TO  Stock,  56.  /  ■ 

Liability  of,  for  fraud  or  misapplication  of  „       ", '■",  '  U'  " '/  "  '  ^3° 

funds  see  State  Aid  5  3-  Remedy  against  Directors..  334 

Meetings'of,  to  effect  consolidation,  see  Con-  ^  ^f  "'^  *->'  ^l^'^J'^^'f'^  j^J^ 

solidation,  10.  *'^^  ^"^   Deprived  of  His 

Notice  of  increase  cf  stock  to,  see  Stock,  Stock 338 

23.  5.  Remedy  of  Minority  against 

Of  bridge  companies,  rights  of,  see  Bridges,  Majority  of  Stockholders.. .  340 

etc.  ,  96.  6.  Ratification,  Acquiescence  or 

—  construction  companies,  rights  and  Uabili-  Laches  as  a  Bar 342 

ties  of.  see  Construction  of  Railways,  7.  Procedure  in  Suits  by  Stock- 

123,124.  holders 344 

7  D.  R.  D.— 3o 


306 


STOCKHOLDERS,  1-3. 


» 


I.  BIGHTS  AND  FOWEBS. 
I.  In  General. 

1.  Who  are  stockholders  and  how 
they  become  such.  —  Payment  of  the 
subscription  makes  the  subscriber  a  stock- 
holder. The  certificates  of  the  shares  are 
but  the  evidence  of  the  fact.  Wemple  v. 
St.  Louis,  /.  &*  S.  A'.  Co.,  30  Am.  6-  £"«f . 
/i'.  Cas.  246,  120  ///.  ig6,  II  N.  E.  Rep.  906, 
9  West.  Rep.  165. 

Under  the  Missouri  statute  providing  for 
the  voluntary  incorporation  of  railroad  com- 
panies, one  can  only  become  a  stockholder 
in  such  a  corporation  by  signing  the  articles 
of  association  or  by  subscribing  to  the  capi- 
tal stock  after  its  creation.  Sedalia,  IV.  &* 
S.R.  Co.v.  Wilkerson,2S.Am.  &•  Eftg.  R. 
Cas.  78,  83  Mo.  235.— Approving  Troy  & 
B.  R.  Co.  V.  Tibbits,  18  Barb.  297  ;  Pough- 
keepsie  &  S.  P.  Plankroad  Co.  v.  Griffin,  24 
N.  Y.  150. 

There  are  two  modes  in  which  a  person 
subscribing  to  stock  may  become  a  member 
of  the  corporation,  under  New  York  General 
Railroad  Act,  1850  :  (i)  by  subscribing  the 
articles  of  association  and  becoming  a  mem- 
ber of  the  corporation,  as  provided  in  sec- 
tions 1,2;  (2)  by  subscribing  to  the  capital 
stock,  in  the  book  opened  by  the  directors, 
after  the  corporation  is  in  existence.  Erie 
6-  A'.  Y.  C.  R.  Co.  v.  Owen,  32  Barb.  {N.  V.) 
616. 

One  who  has  only  signed  articles  of  asso- 
ciation before  the  corporation  came  into 
being  is  not  a  member  of  the  corporation, 
unless  the  articles  so  signed  have  been  filed 
in  the  ofiice  of  the  secretary  of  state,  as 
required  by  the  statute.  Erie  &*  N.  Y.  C. 
R.  Co.  V.  Owen,  32  Barb.  (N.  Y.)  616. 

One  whose  name  appears  as  a  stockholder 
on  the  corporation  books  is,  presumably,  a 
stockholder,  and  the  books  are  admissible 
to  show  the  fact.  Pittsburgh,  W.  <S-  K.  R. 
Co.  V.  Appiegate,  16  Am.  &*  Etig.  R.  Cas. 
440.  21  W.  Va.  172. 

Subscription  to  a  stock  book  is  sufficient 
evidence  of  the  party  subscribing  being  a 
shareholder,  under  the  definition  of  that 
term  in  the  Railway  Clauses  Consolida- 
tion Act,  and  it  is  not  necessary  that  scrip 
should  be  issued  for  the  stock  to  constitute 
such  subscriber  a  shareholder.  Smith  v. 
spencer,  12  U.C.C.P  277  —Followed  in 
Frascr  v.  Hickman,  12  U.  C  C.  P.  584. 

Subscribing  to  a  stock  book  oi  a  railway 
company,  and  paying  in  an  instalment,  is 


sufficient  to  constitute  one  a  stockholder. 
Eraser  v.  Hickman,  12  U.  C.  C.  P.  584.— 
Following  Smith  v.  Spencer,  12  U.  C.  C. 
P.  277. 

2.  Who  are  not  stockholders.— 
Where  a  railroad  charter  authorizes  the 
president  and  directors  to  make  a  condi- 
tional disposition  of  the  unsubscribed  stock, 
purchasers  of  such  stock  are  not  stockhold- 
ers of  the  company  till  that  condition  is 
fulfilled.  McMillan  v.  Maysville  6-  L.  R. 
Co.,  15  B.  Mon.  {Ky.)  218.— Approved  in 
PaducHh  &  M.  R.  Co.  v.  Parks,  86  Tenn. 
554.  8  S.  W.  Rep.  842.  Distinguished  in 
Memphis,  K.  &  C.  R.  Co.  v.  Thompson,  i 
Am.  &  Eng.  R.  Cas.  331, 24  Kan.  170.  Fol- 
lowed in  Henderson  &  N.  R.  Co.  v.  Leav- 
ell,  16  B.  Mon.  (Ky.)  358.  Reviewed  in 
North  Mo.  R.  Co.  v.  Winkler,  29  Mo.  318. 

The  mere  subscribing  to  the  stock  of  an 
incorporated  company  does  not  constitute 
the  subscriber  a  stockholder,  but  puts  it  in 
his  power  to  become  such  by  compelling  the 
corporation  to  give  him  the  legal  evidence 
of  his  being  a  stockholder,  upon  his  com- 
plying with  the  terms  of  the  subscription. 
Busey  v.  Hooper,  35  Md.  15. 

A  person  does  not  become  a  stockholder 
in  an  existing  corporation  by  merely  sub- 
scribing for  stock,  and  is  not  entitled  to  a 
certificate  therefor,  nor  can  he  be  regarded 
as  a  member  of  the  corporation  until  the 
stock  for  which  he  has  subscribed  is  paid 
for.  Baltimore  City  Pass,  R.  Co.  v.  Ham- 
bleton,  77  Md,  341,  26  Atl.  Rep.  279. 

3.  Stockholder's  interest  in  the 
corporate  property.— The  owner  of  all 
the  stock  and  bonds  of  a  corporation  does 
not  own  the  corporate  property.  The  cor- 
porate property,  which  includes  all  rights  of 
action  and  claims  for  damages,  belongs  to 
the  corporation,  and  is  subject  to  the  man- 
agement and  control  of  its  board  of  di- 
rectors. Fitzgerald  v.  Missouri  Pac,  R. 
Co.,  50  Am.  &*  Eng.  R.  Cas.  622,  45  Fed. 
Rep.  812. 

While  a  stockholder  in  a  corporation  has 
a  right  to  participate  in  the  profits  earned, 
he  cannot  be  said  to  be  a  joint  owner  of  the 
property  of  the  corporation.  Spurlock  v. 
Missouri  Pac.  R.  Co.,  90  Mo.  199,  2  S.  W. 
Rep,  219. 

A  shareholder  in  a  corporation  is  not  en- 
titled  to  any  of  the  property  or  profits  until 
a  division  has  been  made  or  a  dividend  de- 
clared. Boardman  v.  Lake  Shore  &*  M.  S, 
R.  Co.,  4  Am.  &*  Eng.  R.  Ccu,  365.  84  N. 


% 


1 


STOCKHOLDERS,  4-8. 


307 


Y.  157.— Followed  in  Beveridge  v.  New 
York  El.  R.  Co.,  112  N.  Y.  i,  19  N.  E.  Rep. 
489,  20  N.  Y.  S.  R.  962. 

The  bondholders  and  stockholders  of  a 
railroad  company  may  unite  for  the  pur- 
chase of  the  property,  at  a  sale  made  in 
good  faith,  to  prevent  a  sacrifice  thereof. 
Pennsylvania  Transfi.  Co.'s  Appeal,  loi  Pa. 
St.  576. 

4.  Position  of  a  state  as  a  stock- 
holder.—Where  the  state  is  a  stockholder 
in  a  railroad  company,  it  is  bound  by  the 
provisions  of  the  charter  in  the  same  man- 
ner as  an  individual.  It  has  no  advantage 
as  a  stockholder  on  account  v..  its  sover- 
eignty, for  by  becoming  such  it  lays  aside 
its  character  as  sovereign  and  places  itself 
on  a  footing  of  equality  with  the  individ- 
ual stockholders.  Marshall  v.  Western  N. 
C.  R.  Co.,  20  Am.  &»  Eng.  R.  Cas.  578,  92  N. 
Car.  322. 

The  property  of  a  corporation  belongs  to 
it,  and  not  to  the  stockholders.  They  only 
have  an  interest  in  such  property  through 
their  relation  to  the  company,  and  in  this 
respect  the  state  is  like  any  other  stock- 
holder. So  where  a  statute  provides  for  a 
sale  of  the  state's  interest  in  a  railroad  com- 
pany in  which  the  state  is  a  stockholder, 
it  is  only  a  sale  of  the  stock.  Marshall  v. 
Western  N.  C.  Ji.  Co..  20  Am.  &*  Eng.  R. 
Cas.  578,  92  N.  Car.  322. 

Whether  such  sale  would  vest  in  the  pur- 
chasers of  the  state's  stock  a.i  the  powers 
and  privileges  which  the  charter  of  the 
company  had  conferred  on  the  state,  guare. 
Marshall  v.  Western  N.  C  R.  Co.,  20  Am.  &* 
Eng.  R.  Cas.  578,  92  N.  Car.  322. 

5.  Estoppel  of  stockholder  to  im- 
peach validity  of  corporate  acts.— 
A  stockholder  who  buys  into  a  corpora- 
tion, with  knowledge  that  it  is  acting  on  an 
assumed  power  to  invest  in  the  stock  of 
corporations  outside  the  state,  will  be  re- 
garded as  thereby  impliedly  recognizing 
such  power.  Venner  v.  Atchison,  T.  &*  S. 
F.  R.  Co.,  28  Fed.  Rep.  581. 

2.  Right  to  Inspect  Corporate  Books.* 

6.  In  general. — Stockholders  have  the 
right  to  inspect  the  books  of  the  corpora- 
tion at  all  reasonable  times.  Deaderick  v. 
Wilson,  8  Baxt.  (Tenn.)  108. 

Under  New  York  Laws  1842,  ch.  165,  it  is 
the  absolute  duty  of  a  transfer  agent  of  any 

*  See  also  Stock,  81. 


moneyed  or  other  corporation  existing  be- 
yond the  jurisdiction  of  the  state  to  ex- 
hibit at  all  reasonable  times  during  the 
usual  business  hours,  to  any  stockholder, 
when  required,  the  transfer  book  and  a  list 
of  the  stockholders,  if  in  his  power  so  to 
do ;  but  a  demand  for  the  exhibition  of  the 
stock  book  is  not  a  sufficient  demand  for 
the  transfer  book.  Kennedy  v.  Chicago,  R. 
I.  <&-  P.  R.  Co.,  14  Abb.  N.  Cas.  (N.  Y.)  326. 

7.  Mandamus  to  compel  exhibi- 
tion of  books. —  Mandamus  is  the  proper 
remedy  for  a  shareholder  who  is  denied  his 
right  to  inspect  the  books  of  the  corpora- 
tion. State  ex  rel.  v.  St.  Louis  &*  S.  F.  R. 
Co.,  29  Mo.  App.  301. 

An  application  under  N.  i.  Act  of  1842, 
ch.  165,  for  a  mandamus  to  compel  a  cor- 
poration to  exhibit  its  transfer  books  to  a 
stockholder,  is  addressed  to  the  sound  dis- 
cretion of  the  court,  and  should  be  exer- 
cised with  great  care.  The  applicant  should 
show  that  he  is  a  bona  fide  stockholder,  and 
that  he  is  not  attempting  to  use  the  writ  to 
accomplish  personal  or  speculative  ends. 
People  ex  rel.  v.  Northern  Pac.  R.  Co.,  18  /. 
&*  5.  (N.  Y.)  456. 

8.  Right  to  make  a  copy.  —  Under 
Pa.  Const,  art.  17,  §  2,  providing  that  cor- 
porations shall  keep  a  list  of  stockholders 
which  shall  be  open  to  the  inspection  of 
stockholders  and  creditors,  a  mandamus 
will  not  lie  to  compel  a  company  to  allow 
a  stockholder  to  copy  the  list,  when  no 
grounds  for  doing  so  are  given  except 
that  he  wished  to  solicit  other  stockhold- 
ers to  join  him  in  litigation  against  the 
company.  Com.  v.  Empire  Pass.  R.  Co.,  134 
Pa.  Si.  237,  19  Atl.  Rep.  629.— Quoting 
Com  ex  rel.  v.  Phceniz  Iron  Co.,  105  Pa. 
St.  III. 

Under  the  Companies  Clauses  Act,  1863, 
§  28,  the  right  of  inspection  and  perusal  of 
the  register  of  debenture  stock,  including 
the  right  to  take  copies  of  entries  there- 
in, is  given  to  mortgagees,  bondholders, 
debenture  stockholders,  shareholders  and 
stockholders.  Mutter  v.  Eastern  &*  M.  R. 
Co.,  L.  R.  38  Ch.  D.  92. 

The  fact  that  a  person  has  taken  his 
stock  in  a  company  at  the  instance  of  a 
rival  company,  and  for  the  purpose  of  serv- 
ing the  interests  of  the  rival  company,  does 
not  disentitle  him  to  the  assistance  of  the 
court  in  enforcing  this  statutory  right. 
Mutter  V.  Eastern  6*  M.  R.  Co  ,  L.  R.  38 
Ch,  D,  92.  —  Distinguishing  Forrest  v. 


!1'l 


808 


STOCKHOLDERS,  9-13. 


tni'j? 


■I 

5    !< 


iiii 


m 


Manchester,  S.  &  L.  R.  Co.,  4  De  G.,  F.  &  J. 
126. 

3.  Meetings. 

O    Notice— Call— Report.— Notice  of 

the  time  and  place  o{  holding  meetings  of 
the  stockholders  of  a  company  for  the 
transaction  of  business,  to  be  effectual, 
must  be  given  in  the  mode  prescribed  by 
the  charter.  Shelby  R.  Co.  v.  Louisville,  C. 
6-  L.  R.  Co.,  12  Bush  {Ky.)  62,  18  Am.  Ry. 
Rep.  213. 

Evidence  of  a  stockholders'  meeting  to 
ratify  a  consolidation  agreement  is  prop- 
erly objected  to  if  no  proof  has  been  offered 
of  legal  notice  of  such  meeting.  Rodgers 
V.  Wells,  44  Mich.  41 1.  6  A^.  W.  Rep.  860, 

Notice  was  given  to  stockholders  of  a 
meeting  to  be  held  for  the  purpose  of 
voting  an  increase  of  tlie  bonded  indebt- 
edness of  the  company,  but  before  the  time 
fixed  all  of  the  stockholders  had  consented 
in  writing  to  such  increase,  and  before  the 
time  fixed  for  the  meeting  the  directors 
met,  and  the  action  of  the  stockholders  was 
reported,  and  the  increase  authorized,  and 
a  report  of  the  meeting  filed  with  the  secre- 
tary of  state.  Held,  that  this  was  a  sufficient 
compliance  with  the  Alabama  statute.  Coe 
V.  East  &*  W.  R.  Co.,  52  Fed.  Rep.  531. 

10.  Bight  to  preside.— Where  a  cor- 
poration has  failed  to  hold  its  annual  meet- 
ing, a  justice  of  the  peace,  who  is  a  stock- 
holder, may,  on  application,  issue  his  war- 
rant for  such  meeting,  under  N.  H.  Gen.  St. 
ch.  133,  §§  15,  16  — that  being  merely  a 
ministerial  act — and,  being  elected  chair- 

..  may  legally  preside  in  such  meeting. 
.1  .^.'  A>.  Q,.  V.  Elliot,  57  N.  H.  397,  13 
rt/i .  Rep.  491. 

I:  p-rs'jn  who  has  been  chosen  to  preside 
a;  -'■'■' ,'  .ate  meeting  is  entitled  to  call  an 
aajournc!  meeting  to  order  and  to  continue 
to  preside  unless  superseded  in  some  or- 
derly and  recognized  parliamentary  man- 
ner. Com.  ex  rel.  v.  Patterson,  1 58  Pa.  St. 
476,  27  Atl.  Rep.  998. 

1 1.  Quorum.— Where  a  meeting  of  the 
stockholders  of  the  Philadelphia  &  Reading 
R.  Co.  was  held  under  and  by  virtue  of  the 
fifth  and  not  by  virtue  of  the  twenty-first 
section  of  the  charter,  it  was  not  necessary 
that  a  majority  in  interest  of  the  stockhold- 
ers should  be  present  at  such  meeting  in 
order  to  validate  its  proceedings,  and  there- 
fore those  persons  who  received  a  majority 
of  the  votes  that  were  then  cast  were  duly 


and  legally  elected  officers  of  the  company 
for  the  ensuing  year.  Appeal  of  Gowen,  i 
Am.  &>  Eng.  R.  Cas.  437,  10  IV.  N.  C.  {Pa.) 
8s. 

12.  Batification  of  action  of  meet- 
ing irregularly  called.— Where  a  board 
of  directors  orders  an  act  to  be  done  without 
objection  then,  or  subsequently,  as  to  an  ir- 
regularity of  the  meeting,  and  the  act  thus 
authorized  is  afterward  performed,  its  le- 
gality cannot  afterward  be  questioned  in  a 
suit  in  equity  on  the  ground  of  irregularity. 
Samuel V.  Holladay,  IVoolw.  {U.  S.)  400. 

An  arrangement  for  the  payment  of  in- 
terest or  interest  dividends  to  stockholders 
while  the  road  is  in  process  of  construction 
is  equitable  and  just ;  and  any  mere  defect  in 
the  notice  calling  a  meeting  of  the  direct- 
ors to  authorize  such  payment  may  be  sub- 
sequently cured.  Richardson  v.  Vermont  &* 
M.  R.  Co.,  44  Vt.  613.— Quoting  Wright 
V.  Vermont  &  M.  R.  Corp.,  12  Cush.  (Mass.) 
68.  Reviewing  Waterman  v.  Troy  &  G. 
R.  Co.,  8  Gray  (Mass.)  433;  Barnard  v. 
Vermont  &  M.  R.  Co.,  7  Allen  (Mass.)  512  ; 
Cunningham  v.  Vermont  &  M.  R.  Co.,  12 
Gray  411. 

And  the  subsequent  act  of  the  corpora- 
tion in  paying  the  interest  to  stockholders 
in  pursuance  of  such  vote,  and  the  act  of 
the  corporation  and  its  directors  in  voting  to 
issue  certificates  to  pay  such  interest,  is  a 
sufficient  ratification  to  make  the  arrange- 
ment valid.  Richardson  v.  Vermont  &•  M. 
R.  Co.,  4^  Vt.  613. 

13.  Withdrawal  from  meeting  — 
New  meeting.— A  disorder  occurred  at  a 
corporate  meeting  in  which  all  parties 
participated.  After  the  disorder  had 
ceased,  a  portion  of  the  stockholders  with- 
drew for  the  purpose  of  carrying  out  a  pre- 
conceived scheme  to  organize  and  run  the 
meeting  in  their  own  interests.  Their  call 
to  withdraw  was  not  to  all  stockholders, but 
only  to  members  of  their  own  faction.  They 
organized  another  meeting,  but  before  vot- 
ing sent  an  invitation  to  the  other  stock- 
holders to  come  and  vote.  Held,  that  the 
acts  of  such  meeting  were  illegal  and  that 
the  invitation  to  the  other  stockholders  was 
ineffectual  to  cure  the  radical  defects  of  or- 
ganization. Com.  ex  rel.  v.  Patterson,  158 
Pa.  St.  476,  27  Atl.  Rep.  998. 

Where  the  shareholders  request  the  di- 
rectors to  call  a  general  meeting  for  certain 
specified  legal  and  proper  purposes,  and  the 
directors  issue  a  notice  for  a  meeting  for  a 


STOCKHOLDERS,  14-16. 


809 


pany 
>eH,  I 
{Pa.) 

cet- 

)oard 
hout 
n  ir- 
thus 

ts  le- 
in  a 

arity. 


I 

ii 


part  only  of  such  purposes,  and  the  req- 
.,  uisitionists  do  not  attend  such  meeting, 
but  themselves  issue  a  notice  under  the 
Companies  Clauses  Act.g  70,  calling  a  meet- 
ing for  the  purposes  mentioned  in  tlieir 
requisition,  the  court  will  not,  in  an  action 
brought  by  the  directors  in  the  name  of  the 
company,  restrain  the  requisitionists  from 
holding  a  meeting.  IsU  of  Wight  R.  Co.  v. 
Tahourdin,  L.Ji.2^  Ch.  D.  320,  53  L.  J.  Ch. 
D.  353.  50  L.  T.  132.  32  W.  Ji.  297. 

4.  Jiight  to  Vote. 

14.  Ill  general,  and  as  dependent 
upon  agreement. — Prima  facte  the  right 
to  vote  stock  accompanies  the  legal  title, 
but  when  the  title  is  divided,  and  an  equity 
exists,  as  between  pledgor  and  pledgee, 
trustee  and  cestui  que  trust,  or  between  ven- 
dor and  vendee,  with  a  title  inchoate  until 
payment,  the  right  to  vote  is  subject  ';o 
the  agreement  of  the  parties.  This  is  the 
rule,  not  only  of  the  common  law,  but  also 
of  the  Pennsylvania  Act  of  May  7,  1889. 
Com.  ex  rel.  v.  Patterson,  158  Pa.  St.  476, 
27  Atl.  Rep.  998. 

In  general,  the  right  to  vote  on  stock  can- 
not be  separated  from  the  ownership  in  such 
a  sense  that  the  elective  franchise  shall  be 
in  one  man  and  the  entire  beneficial  inter- 
est in  another.  The  person  who  votes 
must,  consequently,  be  an  owner,  but  it  does 
not  follow  from  this  that  he  must  be  the 
only  one.  Sheltnerdine  v.  Welsh,  20  Phila. 
(Pa.)   199- 

When  shares  of  stock  are  pledged  as  col- 
lateral the  question  as  to  whether  the  vote 
shall  be  cast  by  the  debtor  or  the  creditor 
may  be  determined  by  agreement  between 
them,  and  they  may  likewise  appoint  a 
third  person  to  hold  the  certificate  for  them 
and  exercise  the  right  to  vote  also.  Shet- 
merdine  v.  Welsh,  20  Phila.  (Pa.)  199. 

15.  Keqiii!iite.s  of  the  subscription 
to  entitle  siiiiscril>er  to  vote.  —A  cor- 
poration was  created  with  a  defined  capital, 
only  part  of  which  was  subscribed.  I/eld, 
that  the  directors  had  power  to  receive  sub- 
scriptions and  issue  certificates  for  the  un- 
taken  stock,  and  the  holders  became  stock- 
holders and  were  entitled  to  equal  rights 
with  the  original  stockholders.  If  a  stock- 
holder has  not  paid  his  subscription  in  full, 
he  owes  for  what  is  unpaid,  but  he  is  none 
the  less  a  shareholder,  and  can  vote  as  sucli. 
Curry  v.  Scott,  54  Pa.  St.  270. 


Where  a  subscription  to  stock  is  not  in 
writing,  and  is  made  for  the  purpose  of 
creating  an  amount  of  stock  sufficient  to 
equal  a  proposed  mortgage,  but  is  not  ac- 
cepted by  the  treasurer  of  the  company, 
and  such  subscription  has  not  been  paid  in 
whole  or  in  part,  the  stock  so  subscribed 
cannot  be  voted  at  a  corporate  meeting. 
Com.  ex  rel.  v.  Patterson,  1 58  Pa.  St.  476,  27 
Atl.  Rep.  998. 

10.  Conveyance  of  voting  power- 
Reinstatement.— The  conveyance  by  a 
stockholder  of  his  voting  power  to  a  trus- 
tee under  an  agreement  for  the  security  of 
corporate  creditors  does  not  constitute  the 
stockholder  a  surety  of  the  corporation  so 
that  a  modification  in  the  agreement  by  the 
trustee  will  reinvest  the  stockholder  with 
the  voting  power.  Mobile  &^  O.  R.  Co.  v. 
Nicholas,  98  Ala.  92,  12  So.  Rep.  723. 

Where  an  agreement  between  the  stock- 
holders of  a  railroad  company,  its  creditors 
and  others  provided  for  the  issue  of  secured 
debentures  to  the  creditors  in  lieu  of  their 
original  evidences  of  debt,  which  were 
transferred  to  a  trustee  ;  and  under  a  trust 
deed,  with  an  irrevocable  power  of  attorney, 
the  right  to  vote  the  stock  was  vested  in  the 
trustees  and  the  debenture  holders  until  the 
debentures  were  paid,  and  by  subsequent 
agreement  the  issue  of  general  mortgage 
bonds  for  the  benefit  of  the  company  was 
authorized,  and  it  was  provided  therein  that 
debentures  might  be  surrendered  to  the 
trustee,  and  bonds  be  issued  in  lieu  thereof; 
"  that  the  lien  of  the  debentures  deposited 
with  the  trustee  shall  be  maintained  for  the 
security  and  benefit  of  the  bonds  issued 
under  said  new  mortgage  ;  that  the  sinking 
fund  under  the  debenture  deed  of  trust 
shall  be  continued  and  maintained  until  all 
the  debentures  not  held  by  the  sinking  fund 
shall  be  deposited  with  the  trustees  of  the 
general  mortgage" — held,  that  the  surren- 
der of  the  debentures  in  exchange  for  bonds 
under  the  latter  agreement  did  not  extin- 
guish the  debentures  so  as  to  reinvest  in  the 
stockholders  the  voting  power  conveyed  for 
the  benefit  of  the  debenture  holders  under 
the  first  agreement.  Mobile  &•  O.  R.  Co.  v. 
Nicholas,  98  Ala.  92,  12  So.  Rep,  723. 

Where  a  state  sells  stock  that  it  has  held 
in  a  railroad  corporation,  and  the  certificate 
thereof  is  duly  certified  and  assigned  by  the 
governor  of  the  state  to  the  purchaser,  he 
has  the  right  to  vote  thereon  in  the  election 
of  directors,  unless  some  statute  or  by-law 


310 


STOCKHOLDERS,  17-20. 


m 


of   the  corporation  prescribes  a  different 
mode.     People  ex  rel.  v.  Devin,  17  ///.  84. 

17.  Voting  stock  deposited  or  held 
in  escrow.— It  is  provided  by  Conn.  Gen. 
St.,  §  1927,  that  "  no  person  shall  vote  at  any 
meeting  of  the  stockholders  of  any  bank  or 
railroad  company,  by  virtue  of  any  power  of 
attorney  not  executed  within  one  year  next 
preceding  such  meeting,  and  no  such  power 
shall  be  used  at  more  than  one  annual 
meeting  of  such  corporation."  The  power 
given  by  a  trust  agreement  to  a  trust  com- 
pany to  vote  upon  the  stock  of  the  syndi- 
cate had  been  given  more  than  a  year 
before  a  vote,  and  had  been  used  at  one 
annual  meeting.  Held,  that  the  power  thus 
given  was  equivalent  to  a  power  of  attorney, 
and  that  under  the  policy  of  our  law,  as  de- 
clared by  the  statute  mentioned,  this  power 
could  not  be  legally  given  for  five  years  or 
for  an  indefinite  period.  Shepaug  Voting 
Trust  Cases,  60  Conn.  553,  24  Atl.  Kep.  32.— 
Quoting  Griffith  v.  Jewett,  15  Ohio  Wkly. 
L.  Bull.  419. 

It  is  the  policy  of  the  law  that  an  un- 
trammeled  power  to  vote  shall  be  incident 
to  the  ownership  of  stock  in  a  corporation, 
and  a  contract  by  which  the  real  owner's 
power  is  hampered  by  a  provision  that  he 
shall  vote  as  some  one  else  dictates  is  en- 
titled to  no  favor.  Shepaug  Voting  Trust 
Cases,  60  Conn.  553,  24  Atl.  Rep.  32. 

This  is  not  entirely  for  the  protection  of 
the  stockholder  himself,  but  to  compel  a 
compliance  with  the  duty  which  each  stock- 
holder owes  to  his  fellow-stockholders  to  use 
his  vote  for  the  general  interest.  Sheftug 
Voting  Trust  Cases,  60  Conn.  553,  24  Atu 
Rep.  32. 

Stockholders  may  place  their  stock  in  the 
hands  of  a  depositary  with  direction  to  vote 
it  as  directed  by  a  committee  appointed  by 
themselves  and  subject  to  their  control. 
Ohio  &»  M.  R.  Co.  V.  State  ex  rel.,  49  Ohio 
St.  668,  32  N.  E.  Rep.  933. 

A  person  owning  stock  entered  into  a 
contract  of  present  sale  of  the  stock,  and 
parted  with  possession  of  it  by  delivery  to  a 
third  party  to  be  held  in  escrow  until  the 
vendee  should  comply  with  the  terms  of 
the  sale,  and  agreed  that  in  the  meantime 
the  right  to  vote  the  stock  should  be  in 
the  vendee.  HelJ,  that  the  vendor  was 
not  a  present  owner  of  the  stock  in  any 
such  sense  as  to  entitle  him  to  vote  it. 
Com.  ex  rel.  v.  Patterson,  1 58  Pa.  St.  476, 
27  Atl.  Rep.  998. 


18.  Proxies.— A  testator  directed  that 
certain  stock  should  be  voted  as  his  son 
should  direct  and  appoint,  and  that  his  exe- 
cutor should  give  a  proxy  or  authority  to  vote 
said  stock  as  the  son  might  desire,  the  son 
being  one  of  the  executors.  Held,  that,  not 
having  received  such  a  proxy  or  authority, 
the  son  could  not  vote  the  stock  in  the  face 
of  a  dissent  by  his  coexecutors.  Whether 
or  not  he  could  compel  his  coexecutors  to 
give  him  such  a  proxy  or  authority  was  not 
decided.  Tunis  v.  Hestonville,  M.  &*  F. 
Pass.  R.  Co.,  149  Pa.  St.  70,  24  Atl.  Rep.  88, 
I  Pa.  Dist.  207. 

10.  Biglit  to  vote  preferred  stock. 
— The  ownership  of  stock,  as  a  general  rule, 
carries  with  it  the  right  to  vote  upon  the 
same  at  any  meeting  of  the  holders  ;  but  to 
this  rule  there  may  be  exceptions,  and  it  is 
competent  for  a  company,  in  issuing  certifi- 
cates of  preferred  stock,  to  stipulate  therein 
.  that  the  holders  shall  not  have  or  exercise 
the  right  to  vote  the  same,  or  as  owners  of 
the  same,  at  any  meeting  of  the  stock- 
holders. Miller  v.  Ratterman,  43  Am.  &* 
Eng.  R.  Cas.  339,  47  Ohio  St.  141,  24  A^.  E. 
Reft.  496. 

20.  Biglit  to  vote  as  affected  by 
illegal  consolidation.— Certain  persons, 
having  obtained  a  majority  of  the  stock  of 
a  railroad  company,  organized  a  second 
company,  to  which  the  stock  was  trans- 
ferred with  an  agreement  requiring  it  to  be 
held  in  a  block.  This  stock  was  deposited 
with  a  trust  company  as  collateral  to  secure 
the  issue  of  bonds.  The  second  company 
then  transferred  all  its  capital  stock  to  a 
third  company,  a  corporation  which  con- 
trolled several  lines  competing  with  the  orig- 
inal road,  whereby  the  third  company  was 
enabled  to  elect  a  directory  to  serve  its  in- 
terests. This  directory  made  a  lease  of  the 
original  road  to  the  third  company,  which 
lease  was  enjoined  as  being  in  conflict  with 
art  4,  §  2,  par.  4  of  the  Constitution  of  Geor- 
gia of  1877,  forbidding  merger  of  compet- 
ing corporations.  The  election  of  another 
board  of  directors  was  ordered  by  the  court, 
and  the  stock  obtained  from  the  second  com- 
pany, together  with  2200  shares  acquired  by 
the  third  company  from  other  sources  and 
deposited  with  the  trust  company,  was  or- 
dered not  to  be  voted  at  such  election 
unless  transferred  in  good  faith.  The 
second  company,  nominal  owner  of  the 
40,000  shares,  and  the  third  company,  as 
owner  of  2200  shares,  surrendered  to  the 


STOCKHOLDERS,  21-24. 


311 


that 

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trust  company  all  or  any  right  which  they 
had  to  vote  the  stock.  IfeM,  that  the  trust 
company  had  no  interest  in  the  stock  other 
than  as  a  mere  stakeholder  and  was  not  en- 
titled to  vote  It.  Clarke  v.  Central  R.  &•  B, 
Co..  «  Atn.  &•  Eng.  K.  Cas.  115,  50  Fed, 
Rep.'iifi. 

The  circuniaiance  ot  the  trust  company 
being  a  trustee  for  a  large  indebtedness  of 
the  original  railroad  company  also  prevented 
its  voting  the  stock.  Clarke  v.  Central  li. 
Sr-  B.  Co.,  52  Am.  &*  Eng.  B.  Cas.  113.  5° 
Fed.  Rep.  338. 

Tlie  trust  company  was  disqualified  to 
vote  the  stock  because  its  president  was 
engaged  in  an  attempt  to  cause  a  merger  of 
the  original  railroad  company  with  compet- 
ing lines  in  the  state  of  Georgia,  contrary  to 
the  Constitution  of  the  state.  Clarke  v. 
Central  R.  &'B.  Co.,S2  Am.  &* Eng. R.  Cas. 
115,  ic  Fed.  Rep.  338. 

5.  R^hts  upon  Dissolution. 

21.  Stocklioldcrs  become  deferred 
creditors. — A  railroad  company  sold  its 
property  for  sixteen  per  cent,  more  than 
enough  to  pay  mortgage  debts,  which  was 
by  agreement  to  be  paid  to  the  stockholders. 
Held,  that  this  fund  was  the  property  of  the 
corporation  and  not  that  of  the  individ- 
ual stockholders,  and  was  liable  for  corpora- 
tion debts.  Chicago,  R.  I.  6-  P.  R.  Co.  v. 
Howard,  7  Wall.  ((/.  S.)  392. 

The  general  rule  is  that  stockholders  are 
to  be  paid  only  after  other  lienholders  ;  and 
where  they  come  forward  and  insist  upon 
having  priority  of  payment  over  mortgage 
creditors,  a  specific  lien  must  be  clearly 
shown  to  exist  in  their  favor,  /^ing  v.  0/tio 
&*  M.  R.  Co.,  9  Biss.  (U.  S.)  278. 

Stockholders  are  not  entitled  to  any  di- 
vision of  the  profits  and  moneys  of  a  cor- 
poration until  after  its  debts  have  been  paid. 
Ryan  v.  Leavenworth,  A.  &*  N.  IV.  R,  Co., 
21  Kan.  365. 

After  a  corporation  has  been  dissolved  or 
its  charter  declared  forfeited,  the  stock- 
holders occupy  toward  it  the  position  of 
deferred  creditors,  and  they  may  in  such 
case  sue  as  any  other  creditor  to  have  its 
assets  administered.  Crumlish  v.  Shenan- 
doah Valley  R.  Co.,  28  W.  Va.  623. 

22.  Accountability  of  mnjorlty  to 
minority. —  A  majority  of  stockholders 
have  no  right  to  exercise  control  over  the 
corporate  management  which  legitimately 
belongs  to  them  for  the  purpose  of  jippro- 


priating  the  corporate  property  or  its  avails 
to  themselves,  or  to  any  of  the  shareholders 
to  the  exclusion  or  prejudice  of  the  others, 
as  by  purchasing  the  property  at  an  unfair 
appraisal.  Ervin  v.  Oregon  R.  &*  N.  Co., 
20  Fed.  Rep.  577. 

23.  Bight  to  sue  on  behalf  of  dis- 
solved corporation.  —  Tenn.  Code,  §§ 
1492-97,  continues  dissolved  corporations 
for  five  years  for  the  purpose  of  bringing 
suits  to  wind  up  the  business.  Held,  that  a 
stockholder  of  the  corporation  might  bring 
a  suit  within  the  five  years,  where  it  ap- 
pears  that  it  was  not  collusive,  and  that  the 
directors  had  been  applied  to  and  refused 
to  bring  suit.  Lafayette  County  v.  Neely,  17 
Am.  <S-  Eng.  R.  Cas.  242,  21  Fed.  Rep.  738. 

But  where  a  railroad  company  is  indebted 
to  the  state  for  aid  extended  it,  and  is  in 
the  hands  of  a  receiver  appointed  by  the 
governor,  under  the  above  statute,  he  is 
the  proper  manager  of  the  company,  and 
the  proper  person  to  bring  suits  in  the 
name  of  the  corporation  after  its  dissolu- 
tion ;  and  if  the  suit  be  to  compel  him  to 
account,  what  is  known  as  the  ninety-fourth 
rule  in  equity  does  not  apply,  as  he  cannot 
be  asked  to  sue  himself;  and  the  stock- 
holders may  proceed  without  compliance 
with  the  rule.  iMfayette  County  v.  Neely,  17 
Am.  6f  Eng.  R.  Cas.  242,  21  Fed.  Rep.  738. 

n.  UABILITT  TO  CBEDIT0B8. 

I.   Upon  Unpaid  Subscriptions. 

24.  In  general.*  —  The  liability  of  a 
stockholder  to  a  creditor  of  the  corpora- 
tion for  unpaid  stock  becomes  fixed  by  the 
insolvency  and  dissolution  of  the  corpora- 
tion, and  then  becomes  a  primary  liability. 
Gareschi  v.  Lewis,  15  Mo.  App.  565;  af- 
firmed in  93  Mo.  197. 

The  stockholders  of  an  insolvent  corpora- 
tion who  have  not  paid  the  full  amount  of 
their  stock  are  liable  to  the  creditors  of  the 
corporation  to  the  extent  of  what  remains 
unpaid  upon  their  several  shares  of  stock, 
or  so  much  thereof  as  may  be  necessary  to 
supply  the  deficiency  in  the  assets  of  the 
corporation  in  order  to  pay  its  debts.  Mor- 
gan V.  New  York  &•  A.  R.  Co.,  10  Paige 
{N.  Y.)  290. 

A  corporation,  being  the  lessee  of  prop- 
erty, permitted  waste  thereon,  for  which 
the  lessor,  in  an  action  for  damages,  re- 

*  Liability  of  stockholders  to  corporation 
creditors  for  corporate  debts,  see  notes,  3  AM. 

St.  Rep.  806,  816. 


312 


STOCKHOLDERS,  25-20. 


covered  a  judgment  for  $5300,  and  tiie  cor> 
poration  being  insolvent,  brought  suit 
against  a  stockholder  thereof,  on  whose 
stock  more  than  that  amount  was  then  un- 
paid, to  enforce  the  payment  of  tlie  judg- 
ment. Held,  that  whether  the  original 
claim  of  tlie  plaintifl  for  damages  was  or 
was  not  an  "  indebtedness"  of  the  corpora- 
tion within  the  scope  of  Oreg.  Const,  art. 
II,  §2,  which  declares  that  a  stockholder 
of  a  corporation  "  shall  be  liable  fur  the  in- 
debtedness" of  the  same  to  the  amount 
unpaid  on  his  stock,  the  judgment  obtained 
thereon  is  such  an  "indebtedtiess",  and 
any  stockholder  uf  the  corporation  is  liable 
therefor  to  the  amount  unpaid  on  his  stock. 
Powell  V.  Oregonian  R.  Co.,  \'>)Sawy.  (U.  S.) 
535,  36  Fed.  Rep.  726;  see  38  Fed.  Rep.  187. 

25.  Unpaid  siibMcriptioiis  ure  a 
trust  Aiiul  fur  tlie  puyiiieiit  of  cor- 
pornte  debts.*  —  Unpaid  subscriptions 
are  part  of  the  capital  stock  of  a  corpora- 
tion, and  like  other  debts  due  constitute 
a  fund  to  which  creditors  may  look  for  the 
payment  of  their  claims,  and  when  the  cor- 
poration neglects  to  call  them  in,  a  court  of 
equity  will  enforce  their  payment.  Baines 
V.  Babcock,  95  Ciil.  581,  27  Pac.  Rep.  674,  30 
Pac.  Rep.  776, 

The  capital  stock  of  a  company  and  its 
profits  constitute  a  trust  fund  for  the  pay- 
ment of  its  debts  and  liabilities,  and  the 
stockholders  are  only  entitled  to  such  sur- 
plus as  may  remain  after  their  payment. 
Being  a  trust  fund  it  may  be  followed  by 
the  creditors  into  the  hands  of  any  persons 
who  received  it  with  notice  of  the  trust, 
and  the  stockholders  themselves  are  con- 
sidered as  affected  with  ample  notice. 
Dudley  v.  Price,  10  B.  Man.  (A>.)  84. 

Where  subscribers  have  not  paid  all  they 
agreed  to  pay  for  their  stock,  that,  when  re- 
covered, should  constitute  a  fund  for  all  the 
creditors,  whether  with  or  without  notice, 
for  as  to  that  fund  creditors  without  notice 
have  no  priority  over  others.  Mathis  v. 
Pridham,  1  Tex.  Civ.  App.  58,  20  S.  W. 
Rep.  1015. 

26.  Creditor  may  proceed  only 
after  execution  against  company 
returned  uusatisfled.f— Where  a  stat- 

*  Unpaid  subscriptions  to  stock  constitute 
trust  fund  for  benefit  of  creditors,  see  note,  3 
Am.  St.  Rep.  808. 

fCorporate  creditor  must  exhaust  his  reme- 
dies against  corporation  before  proceeding  in 
equity  against  stockholders  for  unpaid  subscrip- 
tions, see  note,  3  Am.  St.  Rep.  814. 


ute  makes  the  shareholders  of  a  railroad  lia- 
ble for  the  debts  of  the  compap'  ,  upon  the 
return  of  an  execution  against  the  com- 
pany nulla  bona,  the  action  may  be  main- 
tained after  one  such  return,  without  send- 
ing an  execution  to  each  county  through 
which  the  road  runs.  If  the  shareholder 
knows  of  goods  of  the  company  to  satisfy 
the  execution,  or  which  are  fraudulently 
concealed,  the  onus  is  on  him  to  show  it. 
Jenkins  v.  Wilcock,  \  i  V.  C.  C.  P.  505. 

27.  Ileniedy  by  Karnlshment.  —  It 
seems  that  a  statute  which  merely  gives  a 
remedy  at  law  where  it  could  previously 
have  been  available  in  equity  only,  or  vice 
versa,  may  consistently  with  the  Constitu- 
tion operate  retrospectively ;  but  whether 
Ala.  Act  of  1 841,  which  gives  the  remedy 
by  garnishment  to  the  creditor  of  a  corpora- 
tion against  a  stockholder,  where  the  latter 
stipulates  to  pay  his  subscription  for  stock 
as  calls  are  made  for  it,  entitles  the  creditor 
to  garnishee  the  stockholder  for  what  is  due 
for  the  unpaid  stock  of  a  railroad  where  he 
has  paid  all  the  calls  of  the  company,  is  an 
open  question.  Paschall  v.  Whitsett,  11 
Ala.  472. 

28.  Remedy  by  mandamus.*— Man- 
damus will  not  lie  to  compel  the  board  of 
directors  of  a  street-railroad  company  to 
collect  an  instalment  due  from  the  sub- 
scribers on  the  stock  of  the  company,  where, 
by  a  clause  in  the  charter  of  the  company, 
a  discretion  as  to  the  time  and  the  manner 
of  making  the  collection  is  vested  in  the 
board  of  directors.  State  ex  rel.  v.  Canal  &* 
C.  Sis.  R.  Co.,  23  La,  Ann.  333. 

20.  Remedy  by  scire  facias.  —  (i) 
ll^/ien  granted.  —  A  rule  for  execution  to 
issue  against  a  shareholder  without  a  scire 
facias  will  be  granted  at  the  instance  of  a 
judgment  creditor  of  the  company.  Burke 
V.  Dublin  Trunk  Connecting  R.  Co. ,  37  L.  J. 
Q.  B.  50,  16  W.R.  107,  L.  R.  3  Q.  B.  47.  8 
B.  &-  S.  773. 

A  judgment  creditor  of  a  railway  com- 
pany is  entitled  to  a  scire  facias  for  execu- 
tion against  a  shareholder,  where  the  com- 
pany has  been  ordered  to  be  wound  up,  and 
an  execution  against  it  has  been  returned 
nulla  bona,  and  there  is  no  reasonable  pros- 
pect of  the  debt  being  paid  out  of  the  fund 
in  court  within  a  reasonable  time.  Mackenzie 
V.  Sligo  <S-  S.  R.  Co.,  4  El.  &*  Bl.  1 19,  24  L. 

*  Mandamus  by  corporate  creditors  to  compel 
officers  to  make  calls  on  sul>scriptions  to  stock, 
see  note,  3  Am.  St.  Rep.  807. 


STOCKHOLDERS,  29. 


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/.  Q.  B.  17.  S.  P.,  Palmer  v.  Justice  Ins. 
Soc,  6  El.  (S-  Bl.  1015.  I  fur.  N.  S.  44,  26  L. 
J.  Q.  B.  73.  Hill  V.  London  6*  C.  ^M«r. 
Co.,  iH.&'N.  398.  26  Z.  /.  £'jr.  89. 

Where  a  judgment  creditor  of  a  company 
is  entitled  to  issue  execution  against  share- 
holders, the  court  will  grant  a  mandamus  to 
the  company  to  produce  the  register  of  share- 
holders for  his  inspection.  Beg.  v.  Derby- 
shire,  S.  <5-  W.  J.  R.  Co.,  3  El.  &*  Bl.  784, 
18 /«r.  1054.  23Z:.y.  Q.B.  333. 

Although  no  proceedings  were  taken  to 
procure  satisfaction  in  Ireland  of  a  debt 
against  an  Irish  railway  company,  and  the 
affidavits  do  not  expressly  negative  the  ex- 
istence of  property  there,  the  court  granted 
a  scire  facias  against  a  director  who  had 
stated  at  a  meeting  in  London  that,  in  con- 
sequence of  the  shareholders  not  paying 
calls,  the  directors  had  no  funds  to  meet  the 
claims.  Devereux  v.  Kilkenny  &-  G.  S.  S- 
W.  R.  Co.,  I  L.,  M.  &>  P.  788,  5  Ex.  834,  14 
Jur.  1028,  20  L.  J.  Ex.  37. 

Where  one  creditor  of  a  company  has 
already  obtained  a  scire  facias  against  a 
shareholder  to  the  full  amount  of  his  shares, 
and  received  payment  under  the  same,  the 
court  will  not  make  an  order  for  a  scire 
facias  against  such  shareholder  on  the  ap- 
plication of  another  creditor.  Burke  v. 
Dublin  Trunk  Connecting  R.  Co.,  8  B.  &*  S. 
773.  37  L.  J.  Q-  B.  50,  L.  R.  3  Q.  B.  47.  16 
IV.  R.  107. 

(2)  Procedure, — An  affidavit  on  which  an 
application  is  founded  for  an  execution 
against  shareholders  is  sufficient  if  it  states 
that  the  execution  had  been  issued  against 
the  company  and  returned  nulla  bona  ;  that 
the  party  was  a  shareholder  and  had  been 
served  .with  notice  of  a  motion ;  and  that 
the  company  had  not  at  the  date  of  the 
judgment,  nor  at  any  time  since,  any  lands, 
title  or  effects,  in  England,  Ireland  or  else- 
where, whereon  the  amount  of  the  judgment 
could  be  levied.  Nixon  v.  Kilkenny  &*  G. 
S.  &»  W.  R.  Co.,  I  H.&'N.  47,  2  Jur.  N.  S. 
427,  25  L.  J.  Ex.  249.  S.  P.,  Hyatt  V. 
Darent  Valley  R.  Co.,  2  C.  B.  N.  S.  no. 

In  an  application  for  a  scire  /a»<»  against 
a  shareholder,  the  affidavit  shows  that  the 
party  against  whom  the  writ  is  asked  is  a 
shareholder  if  it  alleges  that  the  deponent 
failed  to  obtain  sight  of  the  registry,  in- 
stituted inquiries,  and  was  informed  by  per- 
sons officially  connected  with  the  company 
that  the  party  in  question  was  duly  registered 
as  a  shareholder.     Rastrick  v.  Derbyshire, 


S.  &*  W.  J.  R.  Co.,  9  Ex.  149,  7  Paihu.  Cat. 
799,  XT  Jur.  977,  23  L.J.  Ex.  2. 

Motion  for  a  scire  facias  is  a  proper  course 
to  pursue  in  order  to  obtain  execution 
agamst  a  shareholder  of  a  public  company 
under  8  &  9  Vict.  c.  16,  §  36.  Hitchins  v. 
Kilkenny  Sf  G.  S.  Sr*  W.  R.  Co.,  10  C.  B. 
160,  I  L.,  M.  &•  P.  712,  i$Jur.  336,  20  L.J. 
C.  P.  31. 

Upon  application  for  leave  to  issue  ex- 
ecution against  shareholders,  it  is  not 
enough  to  show  that  the  execution  against 
the  company  has  been  returned  nulla  bona  ; 
the  court  must  be  satisfied  by  the  affidavit 
that  due  diligence  has  been  used  to  dis- 
cover property  of  the  company.  Hitchins 
v.  Kilkenny  &*  G.  S.  S-  IV.  R.  Co.,  1$  C.  B. 

459- 

The  discretion  of  the  court  in  granting 
or  refusing  a  scire  facias  against  stock- 
holders in  favor  of  a  creditor  of  the  com- 
pany is  a  judicial  discretion  to  be  exercised 
according  to  the  rules  of  law.  A  sugges- 
tion of  fraud,  or  that  parliament  has  been 
imposed  upon  by  false  recitals  in  a  special 
act,  will  not,  where  a  fair  prima  facie  case 
is  made  out,  constitute  ground  for  refusing 
the  writ.  Lee  v.  Bude  <S-  T.  J.  R.  Co.,L.  R. 
6  C.  P.  576,  40  L.  J.  C.  P.  285,  24  L.  T.  827, 
19  W.  R.  954. 

The  rule  nisi  for  scire  facias  against  a 
shareholder  may  be  served  upon  an  attorney 
authorized  by  him  to  accept  sei  //- 

fracombe  R.  Co.  v.  Devon  &*  S.  R.  L.  R. 
2  C.  P.  15. 

A  rule  for  execution  against  a  shareholder 
cannot  be  served  by  delivering  it  to  his 
attorney,  though  at  his  request ;  the  service 
must  be  personal  or  by  leaving  it  at  his  place 
of  abode.  Edwards  v.  Kilkenny  &*  G.  S.  &* 
W.  R.  Co.,  I  C.  B.  N.  S.  409. 

Shareholders  against  whom  a  judgment 
creditor  of  the  company  issues  execution 
may  tender  the  amount  claimed  under  pro- 
test, and  such  tender  will  be  good.  Scott  v. 
Uxbrtdge  &*  R.  R.  Co..  L.  R.  i  C.  P.  596, 
12  Jur.  JV.  S.  602,  35  L.J.  C.  P.  293. 

Shareholders  will  be  given  an  opportunity 
of  questioning  the  validity  of  an  order  un- 
der 8  &  9  Vict.  c.  16,  §  36,  for  an  execu- 
tion against  shareholders  of  a  company 
which  has  been  ordered  to  pay  a  sum  of 
money  and  has  failed  in  so  doing ;  but  the 
court  is  not  bound  to  do  so  by  directing  the 
issuance  of  a  scire  facias.  Healey  v.  Chi' 
Chester  &*  M.  R.  Co.,  L.  R.  9  Eq.  148,  21  Z. 
r.  811,  39  Z.  /.  Ch.  387,  18  W.  R.  270. 


I 


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314 


STOCKHOLDERS,  30,  31. 


30.  Remedy  hy  nctioii  at  law.  — In 
an  action  to  recover  of  nn  individual  stock- 
holder  a  debt  due  from  a  railroad  corpora- 
tion, the  declaration  must  contain  a  special 
averment  that  the  defendant  lind  notice, 
before  suit,  of  neglect  by  the  corporation  to 
pay  the  debt,  or  expose  sufficient  personal 
property,  within  sixty  days  after  demand. 
//I'cA's  V.  Hums,  38  N.  //.  1 4  r . 

Since  the  passage  of  N.  H.  Act  of  June 
27,  1857,  ch.  1962,  assumpsit,  debt  or  other 
action  at  law  cannot  be  maintained  against 
an  individual  stockholder  in  a  railroad  cor- 
poration, for  a  debt  of  the  corporation,  even 
though  demand  has  been  legally  made  upon 
such  corporation  and  proper  notice  given 
to  such  individual  stockholder.  Hadley  v. 
Russell,  40  N.  H.  109. 

In  a  proceeding  to  recover  an  assess- 
ment from  a  stockholder  in  a  railway  cor- 
poration, on  his  statutory  liability  to  pay 
its  debts,  the  petition  did  not.  contain  a 
statement  that  the  stockholder  was  such 
while  the  debt  for  which  judgment  had  been 
obtained  against  the  corporation  was  in- 
curred, and  in  the  other  pleadings  in  the 
cause  it  appeared  that  in  fact  he  was  not 
such  stockholder.  Held,  that  it  was  error  to 
render  judgment  by  default  against  such 
stockholder  for  an  assessment,  inasmuch  as 
the  petition  omitted  a  constitutive  f.ict 
under  the  Code,  and  no  such  fact  could  be 
presumed  to  have  been  proved  when  no 
trial  was  had  and  no  proof  exhibited. 
Hooker  v.  Kilgour,  2  Cin.  Super.  Ct.  350. 

Texas  Rev.  St.,  art.  595,  provides  for  exe- 
cutions against  stockholders  to  the  amount 
of  their  unpaid  stock.  Upon  reorganizing 
a  corporation  the  old  stockholders  took 
stock  in  the  new,  and  also  certain  bonds  and 
cash,  but  the  stock  taken  had  no  market 
value.  Held,  that  the  court,  on  its  law  side, 
had  no  power  to  enforce  the  statute  at  the 
application  of  one  who  became  a  creditor  of 
the  new  or  reorganized  company  and  who 
had  obtained  judgment  against  it.  There 
was  in  fact  no  unpaid  balance  due  on  such 
stock.  Thomson- Houston  Elec.  Co.  v.  Dallas 
Con.  T.  R.  Co.,  54  Fed.  Rep.  looi.— FOLLOW- 
ING Grant  v.  East  &  W.  R.  Co.,  54  Fed. 
Rep.  569. 

It  is  necessary  to  ascertain  who  among 
the  subscribers  are  solvent  and  who  are  in- 
solvent, that  the  solvent  ones  may  be  re- 
quired, as  far  as  their  subscriptions  suffice, 
to  contribute  enough  to  make  up  the  de- 
ficiencies arising  from  the  Insolvency  of  the 


others.     Mathis  v.  Pridham,  i    TV*.   Civ. 
A  pp.  58,  20  5.  W.  Rep.  101  s. 

Where  a  shareholder  in  a  railroad  is  made 
liable  for  the  amount  of  his  unpaid  subscrip- 
tion, after  the  return  of  an  execution  against 
the  company  nulla  bona,  it  is  proper  to  pro- 
ceed against  the  shareholder  by  action,  and 
not  by  set.  fa.  Fro-'r  v,  Hickman,  12  U.C. 
C.  P.  584. 

31.  Itcmedy  by  suit  In  equity.— 
The  capital  stock  of  a  corporation,  when  it 
becomes  insolvent,  is,  in  law,  assets  of  the 
corporation,  to  be  appropriated  to  the  pay- 
ment of  its  debts,  and  creditors  have  the 
right  to  assume  that  the  stock  issued  by 
the  corporation  and  held  by  its  stockholders 
as  paid-up  stock  has  been  paid  up;  and  if 
unpaid,  a  court  of  equity  will  require  it  to 
be  paid.  Richardson  v.  Green,  43  Am.  &• 
Eng.  R.  Cas.  380,  133  U.  S.  30,  10  Sup.  Ct. 
Rep.  280.— Quoting  Wabash,  St.  L.  &  P. 
R.  Co.  V.  Ham.  1 14  U.  S.  587. 

When  stockholders  in  a  corporation,  after 
calls  regularly  made,  are  in  default,  a  judg- 
ment creditor  has  a  complete  remedy  at  law 
against  them,  and  therefore  will  not,  for 
this  cause  only,  be  allowed  to  proceed  in 
equity,  but  as  to  stockholders  who  are  not 
in  default  to  the  corporation  by  reason  of 
no  call  having  been  made,  but  whose  bub- 
scriptions  to  the  capital  stock  have  not  been 
paid,  a  court  of  equity  has  jurisdiction  to 
ccmpel  payment  at  the  instance  of  an  ex- 
ecution creditor  of  the  corporation.  Allen 
V.  Montgomery  R.  Co.,  1 1  Ala.  437. 

A  judgment  creditor  who  has  exhausted 
his  legal  remedies  against  a  corporation 
may  maintain  an  action  against  its  stock- 
holders to  recover,  for  the  benefit  of  all 
creditors  who  may  desire  to  come  in  and  be 
made  parties,  the  amount  due  upon  unpaid 
subscriptions  for  stock,  when  the  corpora- 
tion neglects  or  refuses  to  collect  the  same. 
Raines  v.  Babcock,  95  Cal.  581,  27  Pac.  Rep. 
674,  30  Pac.  Rep.  776. 

Equity  will  compel  individual  stock- 
holders to  pay  in  a  sufficient  amount  of 
their  unpaid  stock  to  discharge  a  corporate 
debt.  Dalton  &*  M.  R.  Co.  v.  McDaniel,  56 
Ga.  191. 

The  mere  fact  that  a  fund  is  a  trust  fund 
for  the  payment  of  the  debts  of  a  railroad 
corporation  does  not  authorize  an  applica- 
tion to  the  chancellor  to  follow  it  into  the 
hands  of  the  stockholders  and  decree  its 
payment  over  to  a  creditor,  unless  facts  are 
alleged  which  show  that  his  legal  remedy 


% 


-•■! 


.;« 


STOCKHOLDERS,  32-30. 


315 


by 


would  be  unavailing  and  the  intervention  o( 
a  court  of  equity  necessary  to  enable  liim 
to  obtain  payment  of  his  demand.  Dudley 
V.  Price,  lo  B.  Mon.  {Ky.t  84. 

A  bill  in  chancery  in  the  form  of  a  cred- 
itor's bill  will  lie  against  the  stockholders  of 
an  incorporated  railroad  company  to  sub- 
ject unpaid  subscriptions  of  stock,  and  the 
stockholders  may  be  proceeded  against  in 
this  way  though  they  omitted  to  pay  at  the 
time  of  subscription  the  five  per  cent,  re- 
quired by  the  charter.  Henry  v.  Vermillion 
&*  A.  J\\  Co.,  17  Ohio  187.  —  Quoted  in 
Robertson  v.  Sibley.  10  Minn.  323  (Gil.  253). 

Under  a  statute  making  shareholders  of  a 
railroad  liable  for  the  debts  of  the  Company 
to  the  amount  of  their  unpaid  stock,  after 
execution  against  the  company  returned 
nulla  bona,  it  is  not  necessary  in  order  to 
recover  against  the  shareholders  to  show 
that  the  stock  had  been  called  for.  Jenkins 
V.  Wilcock,  II  U.  C.  C.  P.  505. 

32.  Effect  of  the  npixiliitmeiit  of  a 
pccclvcp. — Where  an  order  of  sequestra- 
tion and  for  the  appointment  of  a  receiver 
is  issued  against  a  corporation,  upon  the  ap- 
plication of  creditors,  the  right  to  collect 
any  unpaid  balances  on  stock  vests  in  the 
receiver,  and  not  in  a  judgment  creditor ; 
and  he  will  be  restrained  from  proceeding, 
where  the  action  was  commenced  after  the 
making  of  the  order  but  before  the  appoint- 
ment of  the  receiver  was  perfected.  Kankine 
V.  Elliott,  16  N.  Y.  377 ;  affirming  14  How. 

Pr.  339- 

A  creditor  of  a  railroad  corporation  re- 
covered judgment  at  law,  issued  execution, 
had  it  returned  unsatisfied,  and  filed  his 
bill  in  chancery  under  the  statute  relating 
to  "  proceedings  against  corporations  in 
equity"  (2  N.  Y.  Rev.  St.  463,  §  36),  for  a 
sequestration  of  the  effects  of  the  corpora- 
tion and  the  appointment  of  a  receiver. 
The  receiver  appointed  in  that  suit  then 
instituted  a  suit  in  equity  against  a  stock- 
holder to  recover  the  unpaid  balance  of  his 
subscription.  The  stockholder  sued  had 
paid  all  the  calls  made  by  the  corporation, 
pursuant  to  the  terms  of  his  subscription, 
and  other  stockholders  who  had  not  paid 
their  subscriptions  were  not  made  parties. 
Held,  that  the  bill  could  not  be  sustained. 
Mann  v.  Pentz,  3  N.  K.  415;  reversing  2 
Sandf.  Ck.  257. 

33.  Effect  of  bankruptcy  of  stock- 
holder proceeded  as^ainst.— The  char- 
ter of  a  railroad  company  provided  that  in 


case  of  default  of  any  stockholder  to  pay 
an  assessment  on  his  stock,  after  a  pre- 
scribed notice,  the  stock  and  any  payments 
made  thereon  should  be  forfeitable  to  the 
company.  The  company  had  failed  to  pay 
interest  accrued  on  its  mortgage  bonds. 
The  complainants,  holders  of  such  bonds, 
were  about,  for  themselves  and  the  other 
creditors  of  the  company,  to  institute  pro- 
ceedings against  it  to  compel  an  assessment 
on  the  stock  to  supply  the  means  to  pay 
such  interest.  The  company  had  issued 
certificates  of  the  stock,  which  stated  that 
the  shares  were  fully  paid  for.  The  com- 
plainants alleged  that  either  the  certificates 
were  in  this  respect  wholly  untrue,  or  the 
stock  had  not  been  properly  paid  for.  A 
firm  holding  such  stock  had  been  adjudged 
bankrupt,  and  there  had  been  extraordinary 
delay  <n  the  bankruptcy.  The  purpose 
of  the  bill  was  to  restrain  distribution  of 
the  assets  in  bankruptcy  until  proof  could 
be  made  of  the  expected  assessments  on 
the  shares  of  the  bankrupts  as  a  debt  in  the 
bankruptcy.  The  railroad  company  was  not, 
and  could  not  be  made,  a  party  defendant, 
and  the  proposed  proceedings  against  it 
were  to  be  under  a  competent  jurisdiction 
elsewhere.  The  right  of  compelling  the 
assessment,  under  such  proceedings,  of  any 
amount  which  could  be  prospectively  liqui- 
dated, was  not  considered  unquestionable. 
For  this  reason,  and  in  consideration  of  the 
delay,  a  temporary  injunction  to  restrain 
generally  distribution  in  the  bankruptcy  was 
refused.  But  an  injunction  to  restrain  tem- 
porarily the  disposal  of  the  stock  was 
granted.  Gibson  v.  Lewis,  1 1  Phila.  {Pa.)  476. 

34.  Ijtability  as  to  stock  assigned 
for  benefit  of  creditors.  —  A  suit  was 
instituted  by  creditors  of  a  railroad  against 
a  stockholder  to  compel  payment  of  his 
stock.  It  appeared  that  a  part  of  his  stock 
had  been  assigned  for  the  benefit  of  cred- 
itors. Held,  that  the  same  measure  of  lia- 
bility applied  to  the  assigned  stock  as  to  that 
held  in  the  stockholder's  own  name.  Lloydv. 
Preston,  146  U.  S.  630,  13  Sup.  Ct.  Rep.  131. 

35.  Conclusiveness  of  the  judg- 
ment against  the  corporation.  —  A 
judgment  against  a  corporation  for  the  re- 
covery of  money  is  conclusive  evidence,  in 
a  suit  against  a  stockholder  for  the  collec- 
tion of  said  judgment,  of  the  existence  of 
the  corporation,  and  its  liability  to  plaintiff 
therein,  as  thereby  determined ;  and  such 
judgment,  whether  given  in  an  action  ex 


816 


STOCKHOLDERS,  30-38. 


iM 


:  \ 


contractu  or  ex  delicto,  is  an  indebtedness 
of  the  corporation  for  which  a  stockholder 
is  liable  to  the  amount  due  on  his  stock. 
Powf'lv.  Oregonian  Ji.  Co.,  13  Sawy.  {U.  S.) 
535,  36  Fed.  Rep.  726 ;  see  38  Fed.  Rep.  187. 

A  stockholder  cannot  go  behind  the 
judgment  against  the  company,  except  in 
a  case  of  fraud  or  collusion,  and  is  not 
therefore  entitled  to  raise  a  question  as 
to  the  judgment  being  properly  recover- 
able against  the  company.  Ray  v.  Blair, 
12  U.C.  C.  P.  257. 

In  an  action  by  a  creditor  of  a  company 
against  a  shareholder,  under  14  &  15  Vict, 
c.  51,  §  19,  the  record  of  the  judgment 
against  the  company  showed  it  to  have 
been  obtained  on  the  latter's  confession  in 
an  action  on  a  promissory  note.  Held,  that 
defendant  could  not  object  to  the  validity 
of  such  judgment  on  the  ground  that  the 
company  could  not  make  a  note.  It  was 
sufficient  to  prove  a  return  of  nulla  bona 
by  the  sheriff  to  the  fi.fa.,  though  such  re- 
turn had  not  been  filed.  Tyre  v.  Wilkes,  18 
U.  C.  Q.  B.  126. 

30.  Liability  of  directors  under 
tlic  English  law.  —  Where,  under  a 
power  in  the  articles  of  association  to  re- 
ceive payment  of  calls  in  advance,  the  di- 
rectors pay  into  the  bank  the  amount  re- 
maining uncalled  on  their  shares,  and  on 
the  same  day  appropriate  the  money  in 
payment  of  their  fees,  for  which  there  were 
at  the  time,  as  they  knew,  no  other  avail- 
able assets,  there  is  no  bona  fide  payment  in 
anticipatic  A  calls,  pnd  the  directors  are 
not  relieveil  rom  liability  upon  their  shares. 
In  re  European  C.  R.  Co.,  L.  R.  13  Eg.  255, 
41  L.J.  Ch.  251,  26  L.  T.  92. 

The  lapse  of  several  years  during  which 
a  railway  company  has  not  treated  as  share- 
holders certain  persons  nominated  as  di- 
rectors in  the  special  act  cf  incorporation 
is  strong  evidence  that  it  has  abandoned 
all  rights  against  them.  Kipling  v.  Todd, 
L.  R.  3  C.  P.  D.  350,  47  L.  J.  C.  P.  D.  617. 
39  L.  T.  188,  27  W.  R.  84.— Followed  in 
Mammatt  v.  Brett,  54  L.  T.  165. 

2.  Additional  or  Statutory  Liability.* 
37.  In  general.— A  construction  com- 
pany, organized  for  the  purpose  of  furnish- 

*  Nature  of  statutory  liabilhy  of  stockholders 
for  corporate  debts,  see  note,  3  Am.  St.  Rep.  846. 

Legislative  power  to  impose,  repeal  or  modify 
statutory  liability  of  stockholders  for  corporate 
debts,  see  note,  3  Am.  St.  Rkp.  867 

Survival  of  statutory   liability   for  rorpi.rnte 


ing  materials  for  building  and  equipping 
railways,  is  a  railway  corporation  within  the 
meaning  of  the  statute  exempting  stock- 
holders from  liability  beyond  the  amount 
of  their  stock.  (Beck  and  Adams,  JJ.,  dis- 
senting.) First  Nat.  Bank  v.  Davits,  43 
Io2ua  424. — Followed  in  Langan  v,  Iowa 
&  M.  Constr.  Co.,  49  Iowa  317. 

The  members  of  a  corporation  organized 
under  the  laws  of  the  state,  for  the  purpose 
of  transporting  persons  or  property  for 
hire,  are  not  liable  individually,  or  in  solido, 
for  the  obligations  of  the  corporation  exe- 
cuted by  its  authorized  ofTicers.  Rein/told 
v.  Ludeling,  29  La.  Ann.  552. 

Where  a  charter  is  held  subject  to  the 
right  of  repeal  or  modification,  a  stock- 
holder holds  his  shares  subject  to  such  lia- 
bility as  may  attach  to  him  in  consequence 
of  an  extension  or  renewal  of  the  charter, 
even  without  his  consent  or  application  ; 
and  the  same  rule  applies  where  his  estate 
holds  the  shares  after  his  death.  Bailey  v. 
Hollister,  26  N.  V.  112. 

The  stockholder  or  his  personal  repre- 
sentative can,  ii  seems,  relieve  himself  only 
by  selling  the  stock.  Bailey  v.  Hollister,  26 
N.  V.  112. 

38.  Under  constitutional  provi- 
sions.'*'— A  railroad  charter  provided  that 
stockholders  should  not  be  liable  beyond 
the  amount  of  stock  subscribed,  and  that 
the  charter  should  not  be  amended,  ex- 
cept by  the  consent  of  the  stockholders. 
Subsequently  the  state  Constitution  was 
amended,  providing  for  a  double  liability 
on  stockholders.  Held,  that  this  did  not 
act  as  an  amendment  of  the  cliarter  so  as 
to  increase  the  liability  of  the  stockholders, 
where  such  increase  was  never  assented  to 
by  them.  Steacy  v.  Little  Rock  &*  Ft.  S.  R. 
Co.,  s  Dill.  (U.  5.)  348. 

Where  a  state  Constitution  makes  stock- 
holders liable  for  the  debts  of  the  corpora- 
tion beyond  the  amount  of  their  stock,  and 
a  corporation  is  authorized  to  sell  new 
stock,  but  it  is  not  sold  until  after  the  Con- 
stitution is  amended  so  as  to  make  stock- 
holders liable  only  for  the  amount  of  their 

debts  against  stockholders'  personal  representa- 
tive, see  note,  3  Am.  St.  Rep.  869. 

Estoppel  in  actions  to  enforce  statutory  lia- 
bility of  stockholders  for  corporate  debts,  see 
note,  3  Am.  St.  Rep.  872. 

*  Personal  liability  of  stockholders  for  cor- 
porate debts  can  be  imposed  by  constitutions, 
charters  or  statutes  only,  see  note,  3  Am.  St. 
Rep.  835, 


1  i 


STOCKHOLDERS,  39-42. 


817 


)ping 
the 
tock- 
lount 
dis- 
'S,  43 
Iowa 


■I 


stock,  the  stockholders  are  not  liable  under 
the  old  Constitution.  And  the  fact  that  the 
corporation  was  in  debt  before  the  Consti- 
tution was  amended  does  not  render  the 
new  Constitution  invalid,  as  impairing  the 
obligation  of  a  contract  between  the  cor- 
poration and  its  creditors.  Ochiltree  v. 
Imva  R.  Contracting  Co.,  21  Wall  (JJ.  S.) 
249,  7  Am.  liy.  Rep.  525. 

Under  Mo.  Const,  of  1865,  §  6,  as 
amended,  a  stockholder  cannot  be  made 
liable  to  a  creditor  when  his  stock  is  fully 
paid  up.  State  ex  rel.  v.  Bootke,  68  Mo. 
546.— Following  Schricker  v.  Ridings,  65 
Mo.  208. 

The  legislature  has  no  power,  under  the 
present  Constitution  of  Ohio,  to  create  rail- 
road corporations  without  securing  the  indi- 
vidual liability  of  their  stockholders,  at  least 
to  the  minimum  amount  required  by  the 
Constitution  ;  and  if  the  act  of  incorporation 
does  not  secure  this,  either  by  express  pro- 
vision or  by  requiring  from  the  corporators 
or  stockholders  such  acts  of  organization 
or  otherwise  as  will  subject  them  to  the 
constitutional  provision,  the  act  will  be  un- 
constitutional and  void.  State  v.  Sherman, 
22  Ohio  St.  411. 

Tex.  Const,  art.  12,  §6,  does  not  change 
the  rule  long  established  by  courtsof  equity 
that  stockholders  of  a  corporation  are  liable 
to  creditors  for  the  par  value  of  the  capital 
stock  subscribed  for  and  held  by  them. 
Mathis  v.  Pridham,  i  Tex.  Civ.  App.  58,  20 
S.  W.  Rep.  1015. 

30.  The  liability  is  strictly  cuu- 
striied  and  limited.*— The  members  of 
a  corporation  established  by  law  are  not 
personally  responsible  for  the  debts  of  the 
company  beyond  the  amount  of  stock  which 
they  individually  hold.  Chir'^e  v.  Ludeling, 
27  La.  Ann.  607. 

Under  N.  11.  Comp.  St.  ch.  147,  §  i, 
provid  ,g  that  the  stockholders  and  officers 
of  all  corporations  having  for  their  object  a 
dividend  of  profits  among  the  stockhold- 
ers shall  be  personally  liaole  for  the  debts 
and  civil  liabilities  of  such  corporations, 
stockholders  in  a  railroad  are  not  liable  for 
a  debt  of  the  corporation  contracted  before 
they  became  stockholders.  Chesley  v. 
Pierce,  32  N.  H.  388. 


•Construction  of  statutes  imposing  personal 
liability  on  stockholders  for  corporate  debts, 
whether  strictly  or  liberally  aonstrued,  see  note, 
3  Ah.  St.  Rep.  836. 


40.  Necessity  of  Judgnieiit  and 
execution    ag^ainst    corporation.*  — 

Under  111.  Act.  of  1849,  relating  to  railway 
corporations,  if  a  claim  is  owing  by  a  rail- 
way for  services,  a  stockholder  is  not  liable 
until  an  execution  against  the  corporation 
shall  be  returned  ui.satisficd,  and  then  the 
amount  due  on  such  execution  is  the 
amount  recoverable,  with  costs,  ap;ainst  the 
stockholder.  Cutright  v.  Stanford,  81  Jll. 
240. 

41.  Repeal  of  statute  and  its  ef- 
fect. —  When  the  charter  of  a  railroad 
makes  the  individual  stockholders  liable  for 
the  debts  of  the  corporation  to  the  amount 
of  their  stock,  a  statute  repealing  this  pro- 
vision is  unconstitutional,  as  impairing  the 
obligation  of  contracts,  as  to  debts  con- 
tracted on  the  faith  of  such  liability.  Haw- 
thorne  v.  Calef,  2  Wmll.  {U.  S.)  10. 

New  York  Act  of  May  13,  1845,  which 
made  stockholders  in  railroad  companies 
liable  for  debts  of  the  corporation  im- 
properly contracted  with  their  knowledge, 
was  repealed  by  the  General  Railroad  Act  of 
1848,  as  amended  in  1850,  as  to  all  railroads 
created  thereunder.  Rochester  v.  Barnes,  '6 
Barb.  (N.  V.)  657. 

42.  Rule  in  Missouri— Double  lia- 
bility.— Statutes  designed  to  carry  out  the 
"  double-liability"  clause  of  Mo.  Const,  art. 
8,  §  6,  may  limit  the  enforcement  of  such 
liability  as  to  time.  Perry  v.  Turner,  55 
Mo.  418. 

A  company  became  indebted  in  October, 
1870,  prior  to  the  repeal  of  the  "  double-lia- 
bility" clause  of  the  Constitution,  in  the 
sum  of  $7858.  In  suit  against  a  stock- 
holder for  this  amount,  plaintifT,  among 
other  matters,  alleged  in  general  terms  that 
the  company  had  become  insolvent,  and 
had  dissolved  in  December,  1870.  Held:  (i) 
that  under  a  proper  construction  of  art.  i, 
§  22,  of  the  statute  touching  corporations, 
defendant  could  not  be  held  liable  for  the 
entire  amount  of  the  debt,  but  only  in  a 
sum  equal  to  the  amount  of  stock  owned  by 
him,  together  with  the  amount  of  his  un- 
paid subscription ;  (2)  that  the  general 
averment  of  the  insolvency  and  dissolution 
of  the  company  was  sufficient  without  a 
further  statement  of  the  particular  facts 
upon  which  the  averment  was  based ;  (3) 
that  suits  of  the  above  description,  whether 

•judgment  against  corporation,  when  conclu- 
sive in  action  to  enforce  stockholder's  statutory 
liability,  sec  note,  3  Am.  St.  Rep.  858. 


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STOCKHOLDERS,  43-46. 


in  law  or  in  equity,  will  not  lie  against 
defendants  jointly,  but  must  be  against  each 
one  severally,  and  under  our  law  the  stock- 
holder thus  compelled  to  pay  must  resort  to 
his  remedy  for  contribution.  Perry  v. 
Turner,  55  Mo.  418. 

The  double  liability  of  a  stockholder 
created  by  Mo.  Constitution  of  1865  cannot 
be  enforced  by  the  corporation.  Liberty 
Female  College  Assoc,  v.  IVatkins,  70  Mo. 
13.— Explaining  Karnes  v.  Rochester  & 
G.  V.  R.  Co..  4  Abb.  Pr.  N.  S.  (N.  Y.)  107. 

Where  bonds  are  issued  by  a  corporation 
while  double  liability  attached  to  its  stock, 
the  holder  of  such  bonds,  though  he  be- 
came such  after  the  repeal  of  the  double- 
liability  clause,  may  enforce  the  liability 
against  a  stockholder.  The  double  liability 
of  a  stockholder  is  not  a  penally,  but  a  right 
arising  out  of  contract,  and  the  assignee  of 
the  obligation  of  the  corporation  takes  all 
the  rights  of  the  assignor.  Blakeman  v. 
Benton,  9  Mo.  App.  107. 

The  provisions  of  Mo.  Const,  of  1865,  art. 
8,  §  6,  as  to  double  liability,  were  not  car- 
ried into  effect  until  the  passage  of  the  act 
3f  March  19,  1866,  and  the  double  liability 
did  not  attach  in  favor  of  bonds  issued 
prior  to  that  date.  Blakeman  v.  Benton,  9 
Mo.  App.  107. 

43.  repeal  of  (louble-liability 

clause  by  coiistitutiuiinl  niiiend- 
nicnt.  —  A  stockholder  in  a  corporation 
who  becomes  such  after  the  repeal  of  the 
double-liability  clause  in  Mo.  Constitution 
of  1865,  art.  8,  §  6,  is  not  liable  in  double  the 
amount  of  his  stock  for  debts  owing  by  the 
corporation  prior  to  the  repeal.  Ochiltree 
V.  Iowa  R.  Contracting  Co.,  54  Mo.  113,  12 
Am.  By.  Rep.  361. 

Mo.  Constitution  of  1865  went  into  force 
July  4  of  that  year,  but  the  double-liability 
clause  contained  in  it  was  not  carried  into 
effect  by  appropriate  legislation  till  the  act 
of  March  19,  1866.  Between  these  dates 
certain  bonds  were  issued  by  a  railroad. 
This  double  liability  was  abolished  by  the 
constitutional  amendment  of  November  8, 
1870.  Held,  in  an  action  brought  after  1870, 
that  the  holders  of  the  bonds  were  not  en- 
titled to  enforce  against  the  stockholders 
of  the  company  the  double  liability  provided 
by  the  Constitution  of  1865.  Jerman  v. 
Benton,  79  Mo.  148. 

By  Mo.  Rev.  St.  of  1855  the  holders  of 
stock  in  railroad  companies  were  not  subject 
to  the  double  liability  imposed  on  stock- 


holders in  other  corporations.  Jerman  v. 
Benton,  79  Mo.  148.  Blakeman  v.  Benton, 
9  Mo.  App.  107. 

44.  Statutory  liability  to  laborers. 

— The  recovery  of  a  judgment  before  a  jus- 
tice of  the  peace  against  a  street-railway 
company  for  labor  performed  for  the  com- 
pany, and  the  return  unsatisfied  of  an  execu- 
tion issued  thereon,  will  support  an  action 
against  a  stockholder,  under  How.  Mich. 
St.  §  3559,  which  provides  that  no  suit  shall 
be  brought  against  any  individual  stock- 
holder for  any  such  labor  debt  until  judg- 
ment on  the  demand  shall  have  been  ob- 
tained against  the  company  and  execution 
thereon  returned  unsatisfied  in  whole  or  in 
part.  Voight  v.  Dregge,  97  Mich.  322,  56 
N.  lV.Rep.S57. 

New  York  General  Railroad  Act  of  1850, 
§  10,  provides  that  stockholders  shall  be 
jointly  and  severally  liable  for  debts  due 
laborers  and  servants,  for  services  performed 
for  the  corporation.  Held,  that  in  an  action 
under  this  statute  it  is  essential  that  the 
complaint  should  show  the  money  claimed 
to  be  due  or  owing  to  a  laborer  or  serv- 
ant of  the  company  for  services  performed 
for  it.  Boutwell  v.  Toivnsend,  37  Bard.  {N. 
Y.)  205. 

45.  Liability  of  corporation  for 
torts  not  enforceable  against  stock- 
holders.—  A  stockholder  of  a  railroad 
company  is  not  liable  for  the  negligence  of 
the  officers,  agents  or  employes  of  the  com- 
pany in  the  operation  of  its  road.  Atchi- 
son, T.  &*  S,  F,  R.  Co.  v.  Cochran,  41  Am. 
&»  Eng.  R.  Cas.  48,  43  Kan.  225,  7  L.  R. 
A.  414,  23  Pac.  Rep.  151.— Quoting  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Davis,  34  Kan.  209; 
Pullman  Palace  Car  Co.  v.  Missouri  Pac.  R. 
Co.,  115  U.S.  587. 

The  claim  of  a  passenger  for  injuries 
caused  by  the  negligence  of  the  agents  of  a 
carrier  is  not  one  which,  after  judgment 
against  the  company  and  execution  returned 
unsatisfied,  affords  a  ground  of  action 
against  the  stockholders  under  Mich.  Comp. 
Laws  1 87 1 ,  §§  2478-2480.  Bohn  v.  Brown,  33 
Mich.  257. 

40.  Liability  enforceable  by  cred- 
itors only,  not  by  one  stockholder 
at^ainst  another.— Where  a  stockholder 
is  sued  by  a  creditor  of  the  corporation, 
under  a  statute  making  stockholders  liable 
for  the  debts  of  the  company,  it  is  a  good 
defense  that  the  plaintiff  was  a  stockholder 
also  at  the  time  of  acquiring  his  demand. 


I 


STOCKHOLDERS,  47-60. 


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IVait  V.  Ferguson,   14  Abb.  Pr.   {N.   Y.) 

379- 

47.  Liability  imposed  by  particular 

statutes.— A  street-railway  company  re- 
stricted to  horse  power  within  the  city  limits 
only,  and  with  no  restriction  as  to  what 
shall  be  carried,  is  a  railroad  company  within 
the  meaning  of  the  statute  of  1855  defining 
the  stockholders'  liability.  Jerman  v.  Ben- 
toK,  79  Mo.  148. 

The  liability  imposed  by  section  78  of  the 
act  for  the  creation  and  regulation  of  incor- 
porated companies,  on  the  stockholders  of 
certain  corporations  therein  named,  among 
them  railroads,  in  addition  to  their  stock 
subscribed,  is  a  security  provided  by  law  for 
the  exclusive  benefit  of  the  creditors,  over 
which  the  corporate  authorities  have  no  con- 
trol.    Utnstedv.  Buskirk,  17  Ohio  St.  113. 

The  individual  or  personal  liability  of 
stockholders,  under  section  8  of  Ohio  Act 
of  April  10,  i86i,  regulating  street-railroad 
companies,  attaches  in  favor  of  creditors  at 
the  time  the  debt  was  contracted  or  the  lia- 
bility incurred  by  the  corporation.  Brown 
V.  Hitchcock,  4  Am.  &*  Eng.  R.  Cas.  352,  36 
Ohio  St.  667. 

Though  the  charter  of  an  express  com- 
pany did  not  make  the  stockholders  per- 
sonally liable  for  the  debts  of  the  company, 
the  assessment  act  passed  subsequent  to  the 
charter  has  so  far  modified  the  charter  as 
to  make  them  personally  liable.  Anderson 
V.  Com.,  18  Gralt.  (Va.)  295. 

The  statute  20  Vict.  c.  145,  §  21,  does 
not  exempt  the  shareholders  of  the  com- 
pany by  that  act  revived  from  personal  re- 
sponsibility and  liability  for  debts  contracted 
under  the  previous  statute.  Kay  v.  Blair, 
\iU.C.  C.  P.  257. 

3.  Partnership  or  Individual  Liability ?^ 

48.  In  general. — The  liability  of  stock- 
holders for  the  capital  stock  of  a  company  is 
several  and  not  joint.  Baines  v.  Babcock, 
95  Cal.  581,  27  Pac.  Rep.  674,  30  Pac.  Rep. 
776. 

A  stockholder  is  not  a  party  to  a  judg- 
ment against  the  corporation,  and  sucli 
judgment  will  not  bind  his  individual  prop- 
erty. Wilson  V.  St.  Louis  &•  S.  F.  R.  Co. , 
108  Mo.  588, 18  S.  IV.  Rep.  286.— Quoting 
Hitchinsw.  Kilkenny  &  G.  S.  &  W.  R.  Co., 
2D  L.  J.  C.  P.  31. 

*  Individual  liability  of  stockholders  for  cor- 
porate debts,  at  common  law,  see  note,  3  Am. 
St.  Rbp.  834. 


The  subdivision  of  the  General  Incorpora- 
tion Law  entitled  "Corporations"  applies  to 
railroad  companies  organized  under  said  law, 
and  a  failure  to  comply  with  its  provisions 
renders  the  stockholders  individually  liable 
for  the  corporate  debts.  White  v.  Blum,  4 
Neb.  555. 

A  judgment  creditor  of  an  insolvent  rail- 
road corporation  may  join  in  the  same  ac- 
tion a  claim  to  compel  payment  of  unpaid 
subscriptions  for  stuck  and  a  claim  to 
enforce  the  individual  liability  of  stock- 
holders for  the  satisfaction  of  his  judgment. 
Warner  v.  Callendcr,  20  Ohio  St.  190. 

49.  Liability  as  partners.—  Defend- 
ants were  sued  as  stockholders  in  a  joint- 
stock  company,  making  them  liable  as  part- 
ners, and  the  certificates  issued  to  them 
recited  that  the  holders  might  be  liable  for 
further  payment,  but  they  defended  that 
they  received  such  certificates  without  ex- 
amining them.  Held,  that  it  was  their  duty 
to  examine  them,  and  to  ascertain  their 
actual  position  and  liability,  but  whether 
they  were  liable  on  account  of  the  actual 
status  of  the  company  not  being  disclosed 
to  them  was  for  the  jury.  National  Park 
Bank  V.  Nichols,  2  Biss.  (U.S.)  146. 

If  a  shareholder  assumes  the  benefits  and 
advantages  of  a  partner,  he  cannot,  when 
called  upon  to  respond  for  the  contracts  of 
the  corporation,  deny  his  liability.  Na- 
tional Park  Bank  V.  Nichols,  2  Biss.  {U.S.) 
146. 

In  Nebraska,  where  the  amount  due  from 
each  stockholder  in  a  railroad  corporation 
on  account  of  subscriptions  to  its  capital 
stock  equals  or  exceeds  the  demand  of  a 
creditor  of  such  corporation,  a  joint  judg- 
ment therefor  may  be  rendered  against  all 
of  said  stockholders.  The  stockholders  in 
such  case  are  treated  as  partners.  White  v. 
Blum,  4  Neb.  555. 

60.  Extent  of  the  liability— Irreg- 
ular incorporation.'*'  —  Defendant,  an 
individual,  owned  a  short  railroad,  and 
organized  a  new  company  to  which  he  sold 
the  road  for  many  times  its  actual  value, 
taking  payment  in  stock  and  bonds.  He 
was  the  only  stockholder,  except  certain 
individuals  who  held  a  nominal  amount  of 
stock,  without  having  paid  therefor,  to 
enable  them    to    become  corporators  and 


*  Extent  in  general  of  individual  liability  of 
stockholders  for  corporate  debts,  see  note,  3 
Am.  St.  Rep.  836. 


320 


STOCKHOLDERS,  51-63. 


In 


IC.'li 


officers.  Complainants  held  a  portion  of 
these  bonds,  taken  in  payment  of  a  debt 
owed  to  them  by  defendant,  amounting  to 
about  three  times  the  value  of  the  road,  after 
having  refused  to  take  the  entire  road  in 
payment,  it  being  doubtful  whether  tliey 
knew  that  the  company  was  organized  to 
make  use  of  the  road  to  pay  debts.  HM, 
that  the  stockholders  were  liable  for  the 
payment  of  a  judgment  rendered  for  the 
amount  of  the  bonds,  though  these  recited 
that  stockholders  should  not  be  individually 
liable.  Preston  v.  Cincinnati,  C.  &-  H.  V. 
R.  Co.,  36  Fed.  Rep.  54. 

4.  Liability  as  Affected  by  Transfer  or 
Surrender  of  Shares. 

51.  Assignments  and  transfers, 
generally.— When  stock  partially  paid  for 
is  transferred  by  the  stockholder  bona  fide 
to  another  person,  and  he  is  accepted  by 
the  corporation  as  the  holder  of  the  stock, 
this  is  a  discharge  of  the  original  stock- 
holder, and  he  cannot  afterwards  be  pursued 
by  a  creditor.  AlUn  v.  Montgomery  R.  Co., 
1 1  Ala.  437- 

The  liability  of  a  stockholder  in  a  street- 
railway  company,  under  How.  Mich.  St. 
§  3557,  which  provides  that  the  stockholders 
of  every  such  company  shall  be  jointly  and 
severally  liable,  in  their  individual  capacity, 
for  all  labor  performed  for  the  company,  is 
not  affected  by  a  sale  and  transfer  of  his 
stock  after  the  labor  has  been  performed 
and  before  a  suit  is  brought  against  the 
company  to  recover  for  the  same.  Vo^/it 
V.  Dregge,  97  Mich.  322,  56  N.  W.  Rep.  557. 

After  a  personal  liability  attaches  to  a 
stockholder  of  a  railroad,  it  is  not  discharged 
by  the  subsequent  assignment  or  transfer 
of  his  stock  ;  but  the  successive  assignees 
or  holders,  by  accepting  the  stock  and  the 
benefits  arising  therefrom,  impliedly  under- 
take to  indemnify  or  discharge  the  assignor 
from  the  liability  which  attached  to  him  as 
stockholder  while  he  held  the  stock.  Brorvn 
V.  Hitchcock,  4  Am.  &•  Eng.  R.  Cas.  352, 
36  Ohio  St.  667. 

In  a  suit  by  creditors  to  enforce  the  per- 
sonal liability  against  the  stockholders  of 
an  insolvent  railroad,  the  existing  stock- 
holders are  severally  chargeable  with  the 
payment  of  such  liability,  and  if,  by  reason 
of  insolvency,  the  amount  due  from  any 
stockholder  is  not  collectible,  the  assignors 
of  his  stock   up  to  the  time-  the  liability 


attached  may  be  charged  with  the  deficiency. 
Brown  v.  Hitchcock,  4  Am.  &*  Eng.  R.  Cas. 
352,  36  Ohio  St.  667. 

Under  Va.  Code  of  1873,  ch,  57,  §  25, 
forbidding  the  assignment  of  unpaid  stock 
on  the  books  of  the  company,  a  stockholder 
of  record  is  liable  for  any  unpaid  instal- 
ments, though  he  may  have  parted  with  the 
stock  or  held  it  in  trust  for  others.  Hawk- 
ins v.  Glenn,   131  £/.  5.  319,  9  Sup.  Ct,  Rep. 

739- 

52.  Transfer  pursuant  to  con- 
dition in  subscription.— A  large  num- 
ber of  persons,  all  residents  of  a  certain  city, 
subscribed  to  the  original  articles  of  incor- 
poration of  a  railroad,  each  in  sums  of  $1000 
to  $5000,  with  a  proviso  that  if  the  city 
should  subscribe  (50,000  or  more,  it  should 
be  lawful  for  such  individuals  to  transfer  all 
of  their  subscriptions  above  $300  each  to 
the  city  as  part  of  its  subscription.  The 
city  subscribed  $400,000.  and  the  transfers 
were  made  accordingly.  Held,  that  such 
transfers  were  valid,  and  that  creditors  of 
the  company  could  not  require  such  sub- 
scribers to  pay  in  the  residue  of  their  sub- 
scriptions above  the  $300.  The  general  rule 
that  conditions  attached  to  subscriptions 
made  before  incorporation  are  void,  does 
not  apply.  Burke  v.  Smith,  16  IVall.  ( C/.  S.) 
390,  ^Am.Ry.  Rep.  37. 

It  was  objected  that  the  city  never  ac- 
cepted such  transfer.  While  it  is  true  that 
a  mere  assignment  of  the  shares  of  a  sub- 
scriber will  not  relieve  him  until  the  as- 
signee is  substituted  in  his  stead,  yet,  in  the 
absence  of  a  written  transfer,  where  there  is 
proof  that  the  mayor  and  members  of  the 
council  assented  thereto,  and  that  the  stock 
was  not  charged  to  the  subscribers  on  the 
books  of  the  company,  it  cannot  be  said, 
after  the  lapse  of  nine  years,  that  the  trans- 
fer was  not  made.  Burke  v.  Smith,  16 
IVall.  ( (/.  S.)  390.  4  Afn.  Ry.  Rep.  37. 

It  was  further  objected  that  such  transfer 
was  illegal  because  the  directors  of  the 
company  who  ordered  the  transfer  were 
themselves  stockholders.  Held,  not  to 
affect  the  transfer,  the  original  subscrip- 
tions with  the  provision  for  the  transfer 
being  legal  in  themselves.  Burke  v.  Smith, 
16  Wall.  ( U.  S.)  390,  4  Am.  Ry.  Rep.  37. 

53.  Assignment  of  shares  for 
benefit  of  creditors.  —  Defendant,  a 
subscriber  to  the  stock  of  a  railway,  made 
an  assignment  under  the  Insolvent  Act  of 
1869,  but  before  doing  so  he  had  procured 


% 


% 


^^ 


STOCKHULlJliRS,  54  56. 


321 


the  execution  by  the  required  majority  of 
his  creditors  of  a  deed  of  composition  and 
discharge,  apparently  under  section  94  of 
the  act.  Plaintiff,  as  a  creditor  of  the  same 
company,  sued  out  a  writ  of  set.  fa.  against 
defendant  to  compel  payment  to  him  of  the 
balance  due  upon  the  said  stock.  Defend- 
ant pleaded  that  he  was  not  a  shareholder 
in  the  company,  as  the  property  in  the  stock 
had  passed  to  the  assignee.  It  did  not 
appear  whether  or  not  the  assignee  had 
accepted  or  rejected  this  stock,  or  had  done 
any  g:,t  beyond  accepting  the  assignment 
made  him.  Defendant  had  obtained  his 
discharge  in  the  usual  way,  the  unpaid 
balance  upon  the  stock,  however,  not  having 
been  scheduled  as  a  liability  of  defendant, 
and  no  claim  having  been  proved  in  respect 
of  it.  Held,  that  plaintiff  was  entitled  to 
recover,  and  that  the  property  in  the  stock 
had  not  passed  to  the  official  assignee. 
Dem'son  v.  Smith.  43  U.  C.  Q.  B.  503. 

64.  Forfeiture  of  stock  to  com- 
pany.— When  a  corporation  has  proceeded 
under  its  charter  to  forfeit  stock  partially 
paid  out,  this  dissolves  the  connection  of 
the  stockholders  when  shares  are  forfeited 
with  the  corporation,  and  a  creditor  cannot 
charge  them  with  the  amount  unpaid. 
Allen  V.  Montgomery  R.  Co.,  \  i  Ala.  437. 

It  is  error  to  decree  against  a  stock- 
holder of  a  company,  when  it  is  alleged 
that  his  stock  has  been  forfeited  to  the 
company.  If  the  stock  is  forfeited  he  is 
absolved  from  further  liability  to  the  com- 
pany or  its  creditors.  Lexington  &*  O.  R. 
Co.  V.  Brieves,  7  B.  Mon.  (A>.)  556. 

One  whose  shares  of  stock  have  been 
forfeited  for  non-payment  of  calls  is  not  a 
stockholder  within  the  meaning  of  New 
York  General  Railroad  Act  of  1850,  §  10.  so 
as  to  render  him  liable  to  a  creditor  of  the 
company  for  the  amount  unpaid  on  the 
stock,  although  the  debt  was  contracted  by 
the  compaay  beiore  the  stock  was  forfeited. 
(Hunt, C.J.,  and  Woodruff,  J., f<>«/r<ji.)  Mills 
V.  Steivart,  4r  A^.  K  384. 

Wh  jre  the  law  makes  stockholders  liable 
for  debts  of  the  corporation  to  the  extent 
of  their  unpaid  subscriptions,  a  stockholder 
in  a  railroad  is  not  relieved  of  such  liabilit^r 
by  a  resolution  of  the  directors  declaring 
the  stock  forfeited  for  non-payment  of  calls, 
and  that  it  would  be  sold  on  a  day  named, 
if  not  redeemed,  but  where  no  sale  was 
ever  had.  Fraser  v.  Robertson,  13  U,C,  C 
P.  184. 

7  n.  R.  D.— at 


55.  Surrender  of  stock  to  com- 
pany.— One  who  continues  to  hold  the 
certificates  of  his  shares  in  a  railway  com- 
pany is  liable  to  creditors  as  a  stockholder 
although  he  had  offered  by  letter  to  surren- 
der his  shares  to  the  directors,  who  passed  a 
resolution  that  the  surrender  was  accepted, 
no  further  steps  being  taken  to  effectuate  the 
surrender  or  transfer.  Barry  v.  Navan  &* 
K.  R.  Co.,  II  Ir.  R.,  C.  L.  403. 

Scire  facias  on  a  judgment  against  a  rail- 
way company  cannot  be  maintained  against 
persons  nominated  as  directors,  but  to  whom 
no  shares  were  ever  allotted  and  from  whom 
the  company  has  accepted  a  surrender  of  the 
inchoate  right  to  shares  which  they  pos- 
sessed under  the  special  act  of  incorporation 
wherein  they  were  nominated  as  directors. 
Kipling  V.  Todd,  L.  R.  3  C.  P.  D.  350,  47 
L.  J.  C.  P.  D.  6r7.  39  L.  T.  188,  27  W.  R. 
84.— Followed  in  Mammatt  v.  Brett,  54 
L.  T.  165. 

One  who  surrenders  to  a  corporation 
stock  issued  to  him  as  "  full  paid,"  but  for 
which  he  has  paid  nothing,  and  which  stock 
the  corporation  issues,  for  value,  to  bona 
fide  subscribers,  is  not  liable  as  a  stock- 
holder to  one  who  becomes  a  creditor  of 
the  corporation  long  subsequent  to  such 
surrender.  Erskine  v.  Peck,  13  Mo.  App. 
280 ;  affirmed  in  83  Mo.  465. 

A  stockholder  who  surrenders  unpaid 
stock  to  the  corporation  is  not  liable  there- 
on to  a  creditor  of  the  corporation  whose 
demand  accrued  after  the  surrender.  John- 
son  V.  Lullman,  15  Mo.  App.  55 

5.  Enforcement  of  the  Liability. 

56.  In  general  —  Jurisdiction  — 
Notice.*  —  Sufficient  notice  required  by 
Mo.  Rev.  St.  1879,  §736,  to  a  person  sought 
to  be  charged  on  execution  as  a  stockholder 
of  an  insolvent  corporation,  must  be  a  per- 
sonal notice  served  within  the  state.  Wil- 
son V.  St.  Louis  &•  S.  F.  R.  Co.,  108  Mo.  588, 
18  5.  W.  Rep.  286. 

The  right  of  a  creditor  to  sue  an  individ- 
ual stockholder  to  recover  an  unpaid  sub- 
scription and  apply  it  upon  his  debt  does 
not  involve  an  accounting  and  marshaling 
of  assets  and  distribution  of  all  the  proceeds. 

*How  statutory  liability  of  stockholders  for 
corporate  debts  is  enforced,  see  notes,  too  Am. 
Dec  552  ;  3  Am.  St.  Rep.  854. 

Enforcing  liability  outside  of  state  in  whith 
corporation  is  organized,  see  note,  3  Alt,  St, 
Rep.  868. 


892 


STOCKllOLliEKS,  67,58. 


I!|r 


i  \- 


■■   \ 


i  'i 


!- 


Mathis  V,  Pridham,  i  Tex.  Civ.  App.  58,  20 
S.  W.  Rep.  1015. 

67.  Who  are  stockholders  liable 
to  creditors.*  —  Where  a  subscriber's 
agreement  of  a  proposed  railway  company 
empowers  the  directors  to  abandon  the 
undertaking,  or  any  part  thereof,  and  also 
to  make  application  to  parliament  for  an 
act  for  any  of  the  purposes  aforesaid ;  also 
to  fix  upon,  and  from  tii  i-  '  nc  to  alter 
or  vary,  the  termini,  »0"tp  •  r?;  or  line  of 
the  railway,  and  to  deteri'i  ■•  "h  ler  and 
how  far  the  undertaking  shall  be  carried  into 
effect,  a  subscriber  to  S'l-h  agreement  is 
liable  as  a  shareholder  to  the  ^redito-'^  r' 
th«  company,  although  the  act  of  j^Lirlianu  ii 
incorporates  a  different  company  from  tliac 
named  in  the  agreement,  having  different 
termini  and  less  amourc  of  capital  divided 
into  shares  of  a  less  aniount  each.  Nixon  v. 
Brownlow,  2  H.  &^  N.  455,  26  L.  J.  Ex.  273. 

One's  liability  as  a  stockholder  of  a  rail- 
road corporation  to  the  creditors  thereof 
depends  upon  his  legal  relation  to  the 
corporation.  If  he  is  a  stockholder,  as  be- 
tween himself  and  the  corporation,  he  will 
be  liable,  as  such,  to  the  creditors  of  the 
corporation,  but  otherwise  not.  Union 
Sav.  Assoc,  v.  Seligman,  92  Mo.  635,  15  S. 
fV.  Rep.  630.— Distinguishing  Upton  v. 
Tribilcock,  91  U.  S.  45 ;  Sanger  v.  Upton, 
91  U.  S.  56;  Webster  v.  Upton,  91  U.  S. 
6$.  Following  Burgess  v.  Seligman,  107 
U.  S.  20. 

To  create  a  liability  it  is  not  necessary 
that  shares  of  stock  should  have  been 
actually  issued  and  delivered  to  any  of  the 
subscribers.  Their  subscription  fixes  their 
liability.  Mathis  v.  Pridham,  i  Tex.  Civ. 
App.  58,  20  S.  W.  Rep.  1015. 

The  fact  of  defendant's  name  appearing 
in  the  act  incorporating  a  company,  as  one 
of  the  provisional  directors,  will  not  author- 
ize the  court  to  presume  that  he  ever  became 
a  subscriber  for  shares ;  more  especially  when 
there  is  no  proof  of  his  having  acted  as  a 
provisional  director,  or  that  he  had  attended 
any  of  the  meetings  of  the  company,  Rog- 
ers v.  Hersey,  15  Low.  Can.  141. 

Plaintiff,  a  creditor  of  a  company,  sued 
defendant  as  a  shareholder  for  the  amount 
unpaid  on  his  shares.  It  appeared  that  de- 
fendant had  signed  the  stock  book  of  the 

•  Who  are  stockholders  personally  liable  for 
corporate  debts,  see  notes,  3  Am.  St.  Rkp.  829, 
858. 


company  for  forty  shares,  but  he  alleged 
that  this  was  done  upon  the  faith  of  a 
verbal  agreement  with  one  L.,  a  provisional 
director  and  chief  promoter  of  the  company, 
that  defendant  and  another  should  receive 
the  contract  for  building  the  road.  There 
was  no  proof  that  defendant  had  received 
any  formal  notice  of  the  allotment  of  the 
shares,  but  he  paid  10  per  cent  thereon, 
because,  as  he  alleged,  L.  told  him  that  he 
would  not  get  the  contract  unless  he  paid 
it.  He  also  attended  a  meeting  of  the 
shareholders,  and  seconded  a  resolution 
granting  an  allowance  to  the  creditors. 
Held,  that  the  payment  of  the  10  per  cent, 
iride  him  a  shareholder,  and  that  he  could 
not  repudiate  his  liability  on  the  ground 
that  he  had  not  been  awarded  the  contract, 
for  L.  had  no  power  to  bind  the  company  by 
annexing  such  an  agreement  to  his  sub« 
scription.    Wilson  v.  Ginty,  3  Ont.  App.  134. 

58.  Liability  of  persons  holding 
shares  in  trust,  or  as  collatttral  se- 
curity.—By  a  statute  of  Missouri,  stock- 
holders of  a  corporation  at  its  dissolution 
are  liable  for  its  debts ;  but  no  person  hold- 
ing stock  as  executor,  administrator, 
guardian  or  trustee,  and  no  person  holding 
stock  as  collateral  security,  shall  be  person- 
ally subject  to  such  liability,  but  the  per- 
sons pledging  such  stock  shall  be  considered 
as  holding  the  same  and  liable;  and  the 
estates  and  funds  in  the  hands  of  executors, 
etc.,  shall  be  liable.  Held:  (i)  that  persons 
to  whom  stock  of  a  railroad  is  pledged  as 
collateral  security  by  the  corporation  itself 
are  within  the  exemption  of  the  statute ; 
(2)  that  certificates  of  the  stock,  absolute 
on  their  face,  issued  to  a  creditor  as  collateral 
security,  or  in  trust,  may  be  shown  to  be  so 
held  by  evidence  in  pais.  Burgess  v.  Selig- 
man,  9  Am.  &*  Eng.  R.  Cas.  655,  107  U.  S, 
20,  2  Sup.  Ct.  Rep.  10. 

The  holder  of  such  stock  as  collateral 
security,  or  in  trust,  though  he  votes  on 
such  stock,  is  not  thereby  estopped  from 
showing  that  the  stock  belongs  to  the  com- 
pany and  not  to  him,  and  that  he  only  holds 
it  as  collateral  security.  Burgess  v.  Selig' 
man,  9  Am.  &*  Eng.  R,  Cas.  655,  107  C/.  S. 
20,  2  Si4p.  Ct:  Rep.  10. 

Wag.  Mo.  St.  p.  301,  §  9,  in  relation  to 
railroad  companies,  provides  that  "no  per- 
son holding  stock  in  any  such  company 
♦  ♦  *  as  collateral  security  shall  be  per- 
sonally subject  to  any  liability  as  a  stock- 
holder  of  such  company;  but  the  person 


STOCKHOLDERS,  59. 


323 


pledging  such  stock  shall  be  considered  iis 
holding  the  same,  and  shall  be  liable  as 
a  stockholder  accordingly.  '  Held,  that  tliis 
section  has  no  application  to  stock  winch 
has  not  been  issued  in  the  usual  course 
of  business,  and  therefore  does  not  exempt 
from  liability  a  person  holding  as  collat- 
eral security  unsubscribed  stock  issued  to 
him  by  the  company.  (Norton,  J.,  dissent- 
ing.)   Griswolit  V.  SeU^Hiii/i,  4  Am.  &*  Eng. 

A\   CdS.   371,  72  Afo.  no.— DiSllNGUISHING 

McMahon«/.  Macy,  51  N.  Y.  isj).  Not  fol- 
lowing Maltiiewsz'.  Albert,  24  Md.  527. 

No  person  will  be  regarded  as  holding 
stock  as  a  "  trustee  "  or  by  way  of  "  collat- 
eral security,"  within  the  meaning  of  the 
above  section,  and  therefore  exempt  from 
liability  as  a  stockholder,  unless  it  has  come 
into  his  possession  by  original  subscription 
as  trustee  for  some  person  other  than  the 
corporation,  or  by  derivative  title  as  trustee, 
or  by  way  of  collateral  security  after  it  has 
already  been  issued  by  tlic  corporation,  in 
the  ordinary  course  of  busiiu'ss.  Fisher  v. 
Sel^man,  9  Am.  &>  Eng.  1\.  Cas.  670,  75 
Mo.  13. 

One  who  accepts  a  ceriilicate  of  stock, 
under  an  agreement  in  writing  that  it  is 
held  by  him  only  as  collateral  security,  is 
not  thoicby  rendered  liable  as  a  stuckholiler, 
either  to  the  corporation  or  its  creditors. 
Union  Sav.  Assoc,  v.  Seligman,  92  Mo.  635, 
I S  .s:   IV.  Rep.  630. 

Where  stock  is  held  under  a  written 
agreement  only  as  collateral  security,  the 
act  of  voting  it,  by  the  parties  so  holding  it, 
would  not  make  them  absolute  stockholders, 
as  between  themselves  and  either  tiic  cor- 
poration or  creditors  of  the  corporation, 
and  in  either  case  such  holders  W(juld  have 
the  right  to  show  that  they  held  the  stock 
as  collateral  security.  Union  Sav.  Assoc. 
V.  Se/ii,^mtin,  92  Mo.  635,  1 5  .S".  IV.  Kep.  630. 

In  an  action  by  a  creditor  of  a  railroad 
company  organized  under  N.  Y;  Laws  of 
1850,  ch.  140,  against  a  stockholder,  to  en- 
force the  liability  shown  by  section  10  of 
the  act  (as  amended  in  1854,  ch.  284),  evi- 
dence is  proper,  upon  the  part  of  defendant, 
to  show  that  an  assignment  of  stock,  abso- 
lute upon  its  face,  was  in  fact  given  to  him 
as  collateral  security,  and  was  held  by  him 
for  that  purpose  only.  McMahon  v.  Macy, 
51  N.  Y.  155,  4  Am.  Ry.  Rep.  393.— Dis- 
tinguished IN  Griswold  v.  Seligman,  4 
Am.  &  Eng.  R.  Cas.  371,  72  Mo.  110; 
Stephens  v.  Fox,  83  N.  Y.  313. 


Where  by  agreement  a  railway  company 
allots  paid-up  shares  to  certain  persons,  as 
trustees  for  a  banking  company,  as  securi- 
ties for  overdrafts,  and  the  certificate  states 
that  the  shares  are  registered  as  paid  up, 
but  in  the  register  there  is  no  such  entry, 
while  in  the  call  book  they  are  stated  to 
have  been  deposited  as  securities  for  over- 
drafts, the  trustees  are  not  liable  to  judg- 
ment creditors  of  the  railway  company  on 
such  shares.  Guest  v.  Worcester,  B.  &*  L, 
R.  Co.,  iZL.  J.  C.  P.  23. 

61>.  Eft'evt  of  votint;  stoek  liuhl  in 
trust  or  as  collateral.— One  may  render 
himself  liable  as  a  stockholder  in  a  corpora- 
tion as  well  by  his  conduct  in  respect  to 
the  stock  of  the  corporation  as  by  formal 
subscription  to  and  acceptance  of  stock. 
Accordingly,  where  defendants  advanced 
money  to  a  corporation,  and  to  secure  the 
advances,  received  from  the  corporation  a 
certificate  for  a  majority  of  its  capital  stock, 
which  was  absolute  and  uncondir.ional  on 
its  face,  but  was  to  be  held  by  tiiem  "  in 
trust"  as  declared  by  a  resolution  of  the 
board  of  directors,  or  "  in  escrow,"  as  it  was 
expressed  in  an  entry  on  the  slock  book  of 
the  corporation  ;  and  while  so  holding  the 
stock,  defendants  voted  it  at  one  election 
and  thus  elected  the  directors  and  other 
officers,  and  thereby  obtained  complete  con- 
trol of  the  corporation— //f/t/,  that  they 
were  estopped  to  deny  that  they  were  stock- 
holders, and  were  liable  as  such,  both  to  the 
corporation  and  its  creditors  ;  and  this,  so 
far  as  the  creditors  were  concerned,  whether 
they  became  such  before  defendants  had  so 
treated  the  stock  or  not.  Griswold  v.  Selig- 
man, 4  Am.  &*  Eng.  R.  Cas.  371,  72  Mo. 
no.— Criticising  Vice  v.  Anson,  i  M.  & 
R.  113.— Fo'.LOWED  IN  Bray  z/.  Seligman,  9 
Am.  &  Eng.  R.  Cas.  653,75  Mo.  31  ;  Fisher 
V.  Seligman,  9  Am.  &  Eng.  R.  Cas.  670,  75 
Mo.  13. 

And  where  a  corporation  deposits  its  own 
unpaid  and  unsubscribed  stock  with  a  bank- 
ing firm  as  security  for  advances  to  the  cor- 
poration, to  be  held  by  the  firm  for  the 
period  of  one  year,  but  with  no  provision 
for  voting  the  stock,  and  after  the  lapse  of 
the  year  the  firm  did  vote  it  and  thereby 
elected  its  own  board  of  directors  and  so 
ultimately  obtained  complete  control  of  the 
corporation,  the  members  of  the  firm  thereby 
brought  themselves  within  the  rule  of  lia- 
bility laid  down  in  the  above  case.  Fisher 
V.  Seligman,  9  Am.  &*  Eng.  R,  Cas.  670,  75 


't'K 


8JM 


STOCKHOLDERS,  60-62. 


Mo.  13.— Followed  in  Bray  v.  Seligman.g 
Am.  &  Eng.  R.  Cas.  653,  75  Mo.  31. 

60.  Necessity  of  call  by  corpora- 
tion  to  rentier  HultHcribcr  liable.— 

A  sheriff  levying  under  an  execution  against 
the  company  upon  the  unpaid  subscription 
to  stock  of  one  of  Us  stockholderT  acquires 
none  of  the  rights  wiiich  a  creditor  of  ilie 
company  might  have  against  tiic  stock- 
holder, but  only  those  which  tl'c  company 
might  have  against  him,  .md  in  suing  for 
the  unpaid  subscription  must  sue  (under 
the  statute  authorizing  iiim  to  collect  debts 
levied  on)  as  for  a  debt  due  from  tlie  stock- 
holder to  the  company.  Robertson  v.  Sibley, 
10  Minn.  323  (Gil.  253). 

The  terms  of  the  subscription  being  to 
pay  the  amount  when  called  by  the  com- 
pany in  instalments  not  excecdinf;  ten  per 
cent,  each  upon  thirty  days*  notice,  the 
sheriff,  levying  upon  and  suing  for  an  un- 
paid subscription,  cannot  recover  without 
proving  a  call  by  the  company  upon  the 
whole  stock  for  an  amount  not  exceeding 
ten  per  cent.,  and  notice.  The  insolvency  of 
the  company,  or  its  refusal  to  make  calls  or 
make  provision  for  the  payment  of  its  debts 
and  total  abandonment  of  its  work  and  or- 
ganization, do  not  remove  this  necessity. 
Robertson  v.  Sibley,  10  Minn.  323  {Gil.  253). 
—Quoting  Henry  v.  Vermillion  &  A.  R. 
Co.,  17  Ohio  187. 

61.  Parties.*— Where  there  are  other 
stockholders  at  the  time  a  debt  is  con- 
tracted, a  bill  in  chancery  cannot  be  main- 
tained against  the  individual  stockholder 
alone,  for  the  debt  of  the  corporation,  but 
those  against  whom  such  stockholder  would 
have  a  remedy  over  for  contribution  must 
be  made  parties  with  him.  Hadley  v.  Rus- 
sell, 40  N.  H.  109. 

Where  the  creditor  of  an  insolvent  corpo- 
ration, whose  execution  against  the  corpo- 
rate property  has  been  returned  unsatisfied, 
is  ignorant  of  the  names  of  the  stockholders 
whose  shares  of  the  capital  stock  have  not 
been  paid  in  full,  he  may  pray  for  a  dis- 
covery of  their  names ;  and  after  he  has 
obtained  such  discovery  may  amend  his  bill 
and  make  them  parties,  for  the  purpose 
of  charging  them  personally  for  the  de- 

•  Necessary  parties  to  bill  to  subject  unpaid 
subscriptions  to  payment  of  corporation  debts, 
see  notes,  3  Am.  St.  Rep.  815,  857. 

For  whose  benefit  decree  should  be  In  suit  to 
subject  unpaid  subscriptions  to  payment  of  cor> 
poration  debts,  see  note,  3  Am.  St.  Rep.  816. 


ficiency,  to  the  extent  of  their  liability.  Or 
he  may  wait  until  a  final  decree  against  the 
corporation  has  been  made,  and  its  effects 
have  been  distributed  among  its  creditors, 
and  may  then  file  a  supplemental  bill  for 
the  purpose  of  charging  the  stockholders 
personally  for  the  deficiency  to  the  extent 
of  tlieir  statutory  liability.  Morgan  v.  New 
York  &•  A.  K,  Co..  10  Paige  (N.   Y.)  290. 

Suit  being  instituted  in  a  county  against 
the  stockholders  living  there  and  those 
living  elsewhere,  if  the  others  not  living  in 
that  county  are  necessary  parties  to  the 
suit  they  are  properly  sued  there.  It  is 
essential  to  the  completeness  of  the  n  medy 
that  the  amount  of  the  indebtedness  of  the 
corporation,  the  amount  due  by  each  stock- 
holder, and  the  proportion  thereof  neces- 
sary to  discharge  the  debts,  should  be  as- 
certained. Therefore  the  other  stockholders 
are  necessary  parties,  and  the  venue  is 
properly  laid  in  that  county.  Mathis  v. 
Pridham,  i  Tex.  Civ.  App.  58,  20  S.  fV. 
Rep.  1015. 

02.  Pleading.  —  The  liability  of  stock- 
holders of  corporations  (pursuant  to  part  2, 
title  2,  chapter  3,  of  Ala.  Rev.  Code)  for 
debts  of  the  corporation  becomes  primary 
and  absolute  on  the  dissolution  of  the  cor- 
poration ;  and  a  bill  in  equity  will  lie  lo 
enforce  such  liability,  without  averring  tic 
insolvency  of  the  corporation,  and  without 
previous  suit  against  it.  Spence  v.  S/iapatif, 
57  Ala.  598. 

A  complaint  which  allege:^  that  plaintifTs 
are  the  holders  of  unsatisfied  judgments 
against  an  insolvent  railroad  corporation, 
and  which  seeks  the  recovery  of  a  personal 
judgment  against  defendants,  who  arc  al- 
leged to  have  subscribed  to  the  stock  of  the 
corporation,  and  to  have  been  stockholders 
therein  at  the  time  the  several  debts  due 
plaintiffs  were  incurred,  fails  to  state  a  good 
cause  of  action,  in  the  absence  of  any  aver- 
ment that  defendants  are  indebted  for  un- 
paid balances,  or  that  plaintiffs'  claims  were 
for  labor  done  in  the  construction  of  the 
road.  Toner  v.  Fulkerson,  125  Ind.  224,  25 
N.E.  Rep.  2 1 8. 

Where  a  judgment  creditor  of  an  insol- 
vent corporation  commences  an  action  to 
obtain  satisfaction  of  his  judgment  by  the 
enforcement  of  the  statutory  liabilUy  of  the 
several  stockholders,  and,  for  aught  that 
appears  in  the  record,  plaintiff  is  the  only 
creditor,  and  defendants  are  the  only  stock- 
holders, and  the  petition  contains  the  neaes- 


1 

'  'i 

1 


1 


STOCKHOLDERS,  03,64. 


8M 


sary  averments  to  charge  defendants  as 
stockholders,  sustaining  a  demurrer  to,  and 
dismissing  the  petition,  on  the  sole  ground 
that  it  does  not  show  a  cause  of  action,  is 
e  rroneous.  Umsted  v.  Buskirk,  1 7  Ohio  5/.  1 1 3. 

In  an  action  by  a  judgment  creditor  of  a 
company  against  defendant,  to  recover  the 
amount  of  the  shares  which,  it  is  alleged, 
"  he  had  duly  subscribed  for,  and  become  a 
member  of  the  company  to  the  extent  of 
the  said  shai;;es,"  plaintiff  produced  at  en- 
quete  the  stock  book  of  the  company,  in 
which  defendant's  name  appeared  as  a  sub- 
scriber, but  failed  to  prove  the  signature. 
Defendant  established  that  the  signature 
was  not  his,  nor  authorized  by  him,  and 
objection  was  made  at  the  argument  that 
defendant  was  bound  under  L.  C.  Con.  St. 
c.  83,  §  86,  to  file  with  his  plea  an  affidavit 
that  the  signature  was  forged.  Held,  that 
such  objection  would  not  be  maintained 
and  the  case  would  not  be  treated  as  com- 
ing under  the  section  referred  to.  Rcgers 
V.  Hersey,  15  Low.  Can.  141. 

03.  Defenses,  generally.  —  A  provi- 
sion in  a  company's  act  that  it  shall  not 
issue  any  shares  nor  shall  any  share  vest 
in  the  person  accepting  it  until  one-fifth 
of  the  amount  of  the  share  is  paid  up 
does  not  make  the  payment  of  one-fifth  a 
condition  precedent  to  the  liability  as  a 
shareholder  of  the  person  accepting  the 
share.  East  Gloucestershire  R.  Co.  v.  Bar- 
tholomew, L.  R.  3  Ex.  15,  \^  L.  T.  256,  37  L. 
J.  Ex.  17. — Followed  in  McEuen  v.  West 
London  W.  &  W.  Co.,  L.  R.  6  Ch.  655,  40 
L  J.  Ch.  471,  25  L.  T.  143.  19  W.  R.  837. 

Where  a  corporation  which  has  at  least  a 
de  facto  existence  sues  a  stockholder  to  en- 
force an  individual  liability,  he  cannot  set 
up  a  defect  in  the  organization  of  the  cor- 
poration, for  the  reason  that  its  corporate 
existence  cannot  be  inquired  into  collater- 
ally. Eaton  V.  Aspinwall,  19  A^.  Y.  119; 
affirming  6  Duer  176. 

A  subscriber  for  shares  of  stock  in  a  rail- 
road company  which  is  not  authorized  by 
law  to  receive  land  in  payment  for  its  stock, 
cannot,  in  an  action  by  its  creditors  against 
tiie  stockholders  of  the  company,  set  up  or 
avail  himself  of  the  benefit  of  a  collateral 
agreement  between  himself  and  the  com- 
pany to  the  effect  that  the  amount  of  his 
subscription  was  to  be  paid  in  land.  Noble 
V.  Callender,  20  Ohio  St.  199. — Following 
Henry  v.  Vermillion  &  A.  R.  Co.,  17  Ohio 
187. 


The  cessation  of  a  railway  company  by 
non -performance  of  the  conditions  of  its 
charter  within  three  years  does  not  extin- 
guish its  liability  or  that  of  its  stockholders 
to  pay  the  debts  contracted  during  its  exist- 
ence.    Ray  v.  Blair,  12  U.  C.  C.  P.  257. 

In  an  action  by  a  creditor  of  the  corpora- 
tion against  a  shareholder,  defendant  plead- 
ed, among  other  pleas,  nul  tiel  record  as  to 
the  judgment  obtained  against  the  company, 
and  issue  was  joined  thereon.  It  did  not 
appear  at  the  trial  that  this  issue  had  been 
disposed  of.  Held,t)\2X  plaintiff,  not  bcin.<| 
shown  to  be  a  creditor  of  the  company, 
could  not  recover.  In  such  actions  it  is  not. 
necessary  to  aver  that  calls  have  been  ma.lo 
upon  defendant's  stock.  Tyre  v.  Wilkfs,  iS 
U.  C.  Q.  B.  46. 

A  shareholder  is  liable  as  such,  notwith- 
standing the  fact  that  the  full  amount  of 
stock  has  never  been  subscribed  nor  the 
first  instalment  been  paid,  that  the  original 
design  of  the  company  has  been  changed 
by  statute  since  he  subscribed,  that  his  sub> 
scription  has  become  forfeited  for  non-pay- 
ment, and  that  the  company  has  ceased  to 
regard  him  as  a  shareholder,  his  stock  never 
having  been  sold  as  forfeited,  a  new  statute 
as  to  such  sales  having  been  passed  under 
a  resolution  of  the  directors  before  the  day 
named  for  the  sale.  Smith  v.  Lynn,  3  Up. 
Can.  E.  &*  A.  201.— QUOTING  Wickham  v. 
New  Brunswick  &  C.  R.  Co.,  L.  R.  i  P. 
C.  64. 

Under  a  clause  in  an  agreement  between 
a  contractor  and  a  railroad  company,  where 
the  contractor  was  authorized  to  collect,  for 
his  own  benefit  and  profit,  arrears  due  by 
certain  stockholders  for  the  price  of  their 
stock,  to  a  certain  specified  amount,  the 
stockholders  cannot  be  sued  in  the  name  of 
the  contractor,  and  the  company  is  not 
liable  to  warrant  or  defend  such  contractor 
against  a  plea  by  a  stockholder  alleging 
facts  to  show  that  he  was  not  indebted  to 
the  company.  White  v.  Daly,  7  Low.  Can. 
360. 

04.  Payment  for  stock  subscribed.* 
— When  only  a  part  of  subscribed  stock  was 
paid  for,  the  stockholders  voted  to  issue  no 
further  calls,  and  certificates  were  issued  for 
the  amount  of  the  stock  already  paid,  as 
full-paid  stock,  and  the  balance  of  the  sub- 

*  Payment  of  subscriptions  to  stock  in  prop- 
erty as  affecting  stockholders'  liability  where 
corporation  becomes  insolvent,  see  57  Am.  & 
En(;.  R.  Cas.  187,  abstr. 


I 

■Ml  • 


II 


32G 


STOCKHOLDERS,  05,  96. 


I>4 


1  I 


scription  was  canceled.  This  was  done 
when  the  company  was  solvent,  and  no  one 
questioned  it  for  seven  years,  and  until  after 
the  company  became  iiis(jlvent.  /Mi/,  that 
the  subscribers  liad  been  released,  and  cnuld 
not  be  held  by  creditors  of  the  company  for 
the  unpaid  balance  of  their  subscriptions. 
Steacy  v.  Litt/e  Kock  &»  Ft.  S.  A\  Co.,  5  Dill. 
(U.S.)iifi. 

Where  a  company  issues  full-paid  stock 
to  contractors,  which  is  sold  in  the  public 
market  to  purchasers  for  value  without 
notice  of  any  equities  between  the  company 
and  the  contractors,  creditors  of  the  company 
cannot  hold  the  purchasers  liable  for  an  un- 
paid balance  because  the  contractors  had 
not  done  work  enough  fully  to  earn  the 
stock.  SUacy  v.  Little  Rock  5-  Ft.  S.  R. 
Co.,  5  Dill.  ((/.  S.)  348. 

VVIicre  property  is  conveyed  to  a  corpora- 
tion in  payment  for  certain  sharfts  of  stock, 
and  the  transaction  is  made  a  matter  of 
record  and  subsequently  approved  by  all 
the  officers  and  stockholders,  such  shares 
will,  in  the  absence  of  fraud,  be  treated  as 
fully  paid,  and  especially  so  in  a  case  where 
a  party  afterwards  purchases  the  same 
shares  of  stock,  and  subsequently  becomes 
a  creditor  of  the  corporation  by  purchasing 
its  mortgage  bonds  with  full  knowledge  of 
the  nature  and  terms  of  the  original  trans- 
action, and  such  party  or  his  assignee  there- 
after seeks  to  enforce  a  liability  against 
holders  of  such  stock  on  the  ground  that  it 
was  not  fully  paid.  Walbtirii  v.  Chenault. 
43  Kan.  352,  23  rue.  Rep.  657. 

A  special  tax  was  imposed  in  aid  of  the 
corporation,  the  holders  of  the  tax  receipts 
to  become  stockholders  in  the  company 
for  the  amount  thereof.  Held,  that  the 
payment  of  the  tax  does  not  release  the 
stockholders  from  the  obligations  contract- 
ed by  them  under  the  charter.  AVzf  Or- 
leans, J.  &•  G,  N,  R,  Co.  V.  Lea,  12  La. 
Ann.  388. 

Defendant,  a  stockholder  in  a  company 
against  which  he  had  a  claim  for  goods 
sold,  obtained  a  note  from  the  company, 
and  transferred  it  to  one  F.  as  trustee, 
who,  after  suing  the  company  and  obtaining 
judgment  and  a  return  of  nulla  bona,  sued 
defendant,  who  paid  him  the  amount  of 
his  unpaid  stock,  which  amount  F.  then 
held  as  defendant's  trustee.  Held,  that  the 
payment  to  F.  was  not  a  payment  of  de- 
fendant's stock,  and  was  no  answer  there- 
fore to  an  action  brought  against  defendant 


by  a  creditor  of  the  company,  who  had  also 
obtained  judgment  and  a  return  of  nulla 
bona.  McGngor  v.  Currie,  26  U.  C.  C.  P.  55. 

on.  Puyiiiciit  ul'JiKlgineut  iigalust 
coi'iiuratioii.—  N.,  one  of  the  defendants, 
having  a  claim  against  a  railway  company 
for  $1800,  assigned  it  to  one  H.  by  an  in- 
sirument  absolute  in  form,  but  really  in 
trust,  to  enable  H.  to  sue  first  the  railway 
company  and  then  the  defendants,  as  share- 
holders of  unpaid  stock  of.  the  company. 
H.  accordingly  recovered  judgments  against 
both  the  company  and  the  defendants,  but 
made  no  eiTort  to  realize  on  that  against  the 
latter.  After  the  commencement  of  this 
action,  however,  which  was  by  a  judgment 
creditor  of  the  railway  company  against  the 
defendants,  as  shareholders  of  the  company, 
for  their  unpaid  stock, defendants'  solicitors 
g0ve  a  check  for  the  $1800  to  H.,  who, 
after  retaining  $127,  the  amount  of  a  claim 
he  had  against  N.,  handed  over  the  balance 
to  him,  and  defendants  then  set  up  as  a  de- 
fense this  payment  under  the  judgment  re- 
covered by  H.  against  them.  Held,  that  the 
judgment  against  defendants  and  the  al- 
leged payment  thereunder  constituted  no 
defense  to  the  claim  of  an  ordinary  judg- 
ment creditor,  and  that  the  stock  of  the 
present  defendants  had  not  been  paid  up  to 
the  extent  of  $1800,  which  was  therefore 
liable  to  plaintifT  's  claim.  Nasmith  v. 
Dickey,^  U.  C.  Q.  B.  414. 

00.  Breach  by  corporatiou  of  con- 
dition in  subscription.  —  Where  resi- 
dents of  a  city  subscribe  to  stock  upon  the 
condition  that  the  company  shall  erect 
and  operate,  as  soon  as  possible,  in  or  near 
the  city,  a  slaughter-house  of  certain  stated 
capacity,  and  the  slaughter-house  is  erected, 
equipped  and  operated,  the  fact  that  the 
company  is  compelled  by  financial  embar- 
rasments  to  suspend  business  will  not  re- 
lease stockholders  from  their  obligation  to 
creditors.  Mathis  v.  Pridham,  i  Tex.  Civ, 
App.  58,  20  S.  W.  Rep.  loi  5. 

Plaintifl,  a  creditor  of  a  railway  company, 
sued  defendant,  a  shareholder,  for  the 
amount  remaining  due  on  his  shares.  De- 
fendant pleaded  that  it  was  agreed  between 
him  and  the  company  that  if  he  would  sign 
an  agreement  to  take  the  shares  it  would 
give  him  a  contract  for  the  construction  of 
the  railway,  and  that  unless  and  until  the 
contract  should  be  so  given  he  should  not 
be  bound  by  the  agreement  or  become 
thereby  a  shareholder ;  and  in  pursuance  of 


ts^m 


*M 


STOCKHOLDERS,  07-73. 


m 


d  also 
nulla 

P.SS- 
aiu8t 

dants, 
pany 
an  in- 
ally  in 
ailway 
share- 


- 


y 


said  contract,  and  not  otherwise,  he  signed 
the  agreement ;  and  that,  without  any  de- 
fault on  his  part,  the  company  refused  to 
give  him  the  contract,  and  gave  it  to  an- 
other; and  that,  except  as  aforesaid,  he 
never  subscribed  for  or  became  the  owner 
of  the  shares.  In  another  plea,  defendant 
alleged  that  he  did  subscribe  for  the  she/  s 
on  the  same  agreement ;  and  that  until  iJie 
contract  should  be  given  to  him,  he  was 
not  bound  by  such  subscription  ;  that  the 
contract  was  given  to  another,  and  that  he 
had  never  paid,  nor  been  asked  to  pay, 
anything  on  the  shares,  nor  had  he  been 
recognized,  or  treated,  or  done  any  act  as  a 
shareholder  in  respect  of  said  shares ;  and 
that,  other  than  as  aforesaid,  he  never  siil)- 
scribed  for  or  became  the  owner  f)f  said 
shares.  HeM,  on  demurrer,  that  both  picas 
were  good,  as  showing  that  defendant  never 
became  a  shareholder,  so  as  to  be  liable  to 
creditors,  there  being  here  no  sncii  provi- 
sion as  in  the  English  Companies  Act  of 
1867.  requiring  such  agreements  to  be  regis- 
tered in  order  to  bind  creditors.  IJullivant 
V.  Manning,  41  U.C.  Q.  B,  517. 

67.  Subscription  at  less  than  par 
value. — A  railroad  company,  being  flnan- 
cially  embarrassed,  paid  a  contractor  with 
stock  at  twenty  per  cent,  of  its  face  value, 
but  which  had  no  market  value.  Held, 
that  the  holder  of  such  stock  was  not  liable 
to  creditors  of  the  railroad  for  the  full  face 
value  of  the  stock,  under  the  Iowa  Code  of 
1873,  §  1082,  making  stockholders  individ- 
ually liable  "to  the  amount  of  the  unpaid 
instalments  of  the  stock  owned  by  them,  or 
transferred  by  them  for  the  purpose  of  de- 
frauding creditors."  Clark  v.  Bever,  139 
U.  5.  96,  1 1  Sup.  a.  Rep.  468 ;  affirming  31 
Fed.  Rep.  670.— DISAPPROVING  Jackson  v. 
Traer,  64  Iowa  469. 

When  creditors  have  notice  when  their 
dtbts  are  created  of  an  arrangement  be- 
tween the  corporation  and  the  subscribers 
to  its  stock,  by  which  the  latter  received  it 
for  less  than  par,  the  creditors  cannot  hold 
the  subscribers  for  a  greater  sum  than  they 
agreed  to  pay.  Mathis  v.  Pridham,  i  Tex. 
Civ.  App.  58,  20  5.  W.  Rep,  1015. 

08.  Statute  of  limitations.*  —  The 
claim  of  a  creditor  of  a  corporation  against 
a  stockholder  for  unpaid  stock  matures  on 


*  When  statute  of  limitations  begins  to  run 
against  creditors'  claim  on  unpaid  subscriptions  to 
capital  stock,  see  notes,  3  Ah.  St.  Rep.  827, 872. 


dissolution  of  the  corporation,  and  must  be 
exhibited  within  two  years.  Gareschi  v. 
Lewis,  15  Mo.  App.  565 ;  affirmed  in  93  Mo. 

197. 
OU.  Waiver  of  lien  by  creditor.^ 

The  taking  from  the  railroad  company  of 
notes  indorsed  by  a  stockholder  for  claims 
is  not  a  waiver  of  any  lien  which  such 
claims  may  have,  in  the  absence  of  any  in- 
tention to  waive  it.  Mcllhenny  v.  Bint,  80 
Tex.  I,  135.  W.  Rep.  655. 

70.  Illcfirality  of,  or  fraud  in,  claim 
of  plaintift'  against  corporation. — 
In  a  suit  to  subject  unpaid  subscriptions  to 
the  stock  of  a  railroad  to  payment  of  the 
debts  of  the  company,  the  defense  was  set 
np  that  the  origin  of  the  debts  sought  to  be 
enforced  was  an  illegal  gambling  transac- 
tion. On  motion  the  court  struck  out  this 
part  of  the  answer.  Held,  no  ground  for 
reversal  where  tlie  proofs  did  not  sustain 
the  charge.  Lloyd  v.  Preston,  146  U.  S. 
630,  135///.  Ct.  Rep.  131. 

It  is  the  duty  of  a  corporation  towards 
its  stockholders  and  the  right  of  creditors  of 
the  corporation,  for  their  own  protection, 
to  resist  the  appropriation  of  the  property 
of  the  company  to  the  payment  of  creditors 
whose  claims  originated  in  fraud.  Central 
Trust  Co.  V.  New  York  City  &*  N.  R.  Co.,  \Z 
Abb.  N.  Cas.  {N.  K.)  381. 

71.  Usurious  character  of  Judgr- 
nicnt  against  company.— A  jud'gment 
was  obtained  against  a  railroad  company, 
and  execution  returned  nulla  bona.  An  ac- 
tion was  then  begun  against  a  stockholder, 
under  the  statute,  to  subi  ct  his  unpaid 
subscription  to  satisfaction  of  the  judgment. 
Held,  that  the  stockholder  could  not  show 
that  the  judgment  against  the  company  was 
based  on  a  usurious  transaction  without 
setting  it  up  by  special  plea.  Fraser  v. 
Hickman,  12  U.C.  C.  P.  584. 

72.  What  scts-off  are  allowable.* 
— In  a  proceeding  under  the  statute  by  mo- 
tion for  execution  against  a  stockholder  in 
a  railroad,  the  stockholder  is  entitled  to  set 
off  against  his  liability  any  demand  he  ma" 
have  against  the  company.  Jerman  v.  Ben- 
ton,  79  Mo.  148. 

73.  What  sets-off  will  not  be  al- 
lowed.—The  act  respecting  railways  de- 
clared a  shareholder  liable   to   judgment 

*  Stockholders'  right  to  set  off  debt  due  them 
by  corporation  in  actions  to  enforce  statutory 
liability  to  corporation  creditors,  see  note,  3  Am. 
St.  Rep.  871. 


328 


STOCKHOLDERS,  74-77. 


creditors  of  the  company  for  "an  iinount 
equal  to  the  amount  unpaid  on  thi  stocic 
held  by  him."  Held,  that  a  sharchol  ler,  in 
an  action  a(;ainst  him  by  a  judgment  cred- 
itor of  the  company,  could  not  setoT,  in 
equity,  a  debt  due  him  by  the  conipiiny  'ic- 
fore  the  judgment  was  recovered.  Macbeti 
V.  Smart,  14  Grant's  Ch.  (U.  C.)  29S. 

Defen(lant,  a  stockholder,  wlicn  sued  for 
a  debt  of  the  corporation,  pleaded  upon 
equitable  grounds  a  set-ofT  against  tiie  com- 
pany upon  the  common  money  counts, 
claiming  that  the  amount  so  due  as  a  set-ofT 
paid  tlie  amount  due  by  him  upon  the  stock, 
and  therefore  there  was  nothin";  due  by 
him.  Held,  bad  on  demurrer,  (i)  as  not 
disclosing  a  good  defense  at  law,  plainiilT 
being  an  entire  stranger  to  the  claim;  (2) 
because  the  plea  did  not  offer  to  set  ofl  the 
claim  of  defendant  against  the  railway  com- 
pany in  payment  of  plaintiff's  debt ;  {3)  be- 
cause the  {)Iea  did  not  aver  that  the  amount 
so  unpaid  upon  the  stock  was  the  only 
debt  due  by  defendant  to  the  railway 
company.  Smart  v.  McDeth,  13  f/.  C.  C. 
P.  27. 

Where  an  action  is  brought  against  a 
stockholder  in  a  railroad  to  subject  his  un- 
paid stock  to  payment  of  a  judgment  against 
the  company,  he  cannot  set  ofl  the  amount 
of  a  decree  against  the  company  for  the 
price  of  land  contracted  to  be  sold  to  the 
company,  the  decree  having  directed  pay- 
ment of  the  price  when  a  conveyance  should 
be  made,  which  had  not  been  done.  Fraser 
V.  Robertson,  13  U.  C.  C.  P.  184. 

74.  Evidence.  —  In  an  action  to  en- 
force, against  a  stockholder,  a  liability  for  a 
debt  of  the  corporation,  the  record  of  a 
judgment  recovered  against  the  corporation 
is  competent  evidence  of  plaintiff's  status 
as  a  creditor  of  the  company,  and  of  the 
amount  due  him.  Step/tens  \.  Fox,  ^j,  N.  V. 
313;  affirming  17 //««  435.— DISTINGUISH- 
ING Miller  v.  White,  50  N.  Y.  137;  McMa- 
hon  w.  Macy,  51  N.  Y.  155. 

Where  a  creditor  of  a  company  is  pro- 
ceeding by  scire  facias  against  a  shareholder, 
he  must  bring  the  defendant  within  the 
precise  terms  of  the  statute  by  showing  that 
he  is  in  the  strictest  sense  a  shareholder. 
Denison  v.  Lesslie,  3  Ont.  App.  536 ;  affirm- 
ing 43  U.  C.  Q.  B.  22. 

The  evidence  was  sufficient  to  prove  that 
knowledge  of  the  acceptance  of  his  offer  by 
the  company  had  reached  the  defendant 
and  that  he  was  therefore  liable  as  a  share- 


holder. Denison  v.  Lesslie,  3  Ont.  App. 
536 ;  affirming  43  U,  C.  Q.  li.  22. 

7n.  HliowiiiK  value  of  Mtock  lichlby 
defendant.  —  A  railroad  contractor  was 
paid  $1 3,000  per  mile  in  first  mortgage 
bonds  of  the  company,  and  in  addition  took 
a  large  amount  of  stock,  A  creditor  of  the 
'lilroad  afterward  sought  to  charge  the 
coii*ractor  as  a  subscriber  to  unpaid  stock, 
allcgirij  that  the  Si2,ooo  per  mile  was  full 
pay  for  tli.'  work.  Held,  on  demurrer,  that 
to  do  so  he  must  show  the  value  of  the 
stock  when  issutv^  Fogg  v.  Blair,  139  U, 
S.  118,  II  Sup.  Ct.  Nej,.  4;u. 

70.  Contribution  ninonic  defend- 
ants.'*- The  liability  of  stockholders  for 
the  debts  of  a  railroad  is  several  in  its  na- 
ture, but  the  right  arising  out  of  this  liabil- 
ity is  extended  for  the  common  and  equal 
benefit  of  all  the  creditors,  and  the  suit  of  a 
creditor  to  enforce  such  liability  should, 
under  the  statute,  be  for  the  benefit  of  all  of 
the  creditors  ;  and  the  stockholders  whose 
liability  is  sought  to  be  enforced  have  the 
right  to  insist  on  their  co-stockholders  be- 
ing made  parties  for  the  purposes  of  a  gen- 
eral account,  and  to  enforce  from  them 
contribution  in  proportion  to  the  shares  of 
stock  held  by  them.  Umsted  v,  Buskirk, 
17  Ohio  St.  113. 

The  right  of  contribution  grows  out  of 
the  organic  relation  existing  among  the 
stockholders.  As  between  them  and  the 
creditors,  each  stockholder  is  severally  lia- 
ble to  all  the  creditors;  as  between  them- 
selves, each  stockholder  is  bound  to  pay  in 
proportion  to  his  stock.  Umsted  v.  Bus- 
kirk,  17  Ohio  St.  113. 

III.  8T0CKH0LDEBS'  BIGHTS  OF  ACTION. 

I.  /«  General. 

77.  lliglit  to  Mie  in  bclialf  of  tbe 
corporation,  generally.  —  A  stock- 
holder, in  a  suit  '<rliich  he  is  permitted  to 
prosecute  in  behalf  of  the  corporation,  can- 
not question  its  right  to  exercise  the  powers 
declared  in  its  certificate  of  incorporation, 
especially  its  power  to  own  the  stock  of 
another  corporation.  Such  question  can 
only  be  raised  in  proceedings  by  the  attorney- 
general  in  behalf  of  the  state.  Willoughby 
V.  Chicago  J.  R.  &•  U.  S.  Co.,  50  A^.  /.  Eq. 
656,  25  Atl.  Rep.  277. 

*  Actions  between  stuckholders  for  contribu- 
tion, see  note,  3  Am.  St.  Rep.  870. 


i 


STOCKHOLDERS,  78-80. 


339 


Defendant  company  leased  another  road, 
and  in  addition  to  a  certain  rent,  agreed  to 
pay  a  ten  per  cent,  dividend  on  the  capital 
stock  of  the  leased  road,  payable  quarterly, 
which  it  agreed  to  guarantee  to  the  stock- 
holders, and  had  the  terms  of  this  agree 
ment  printed  on  the  certifi'-'^tca  ol  st'Ji,k. 
//M.that  tills  was  a  pa'-.iient  to  be  made  to 
the  lessor  company  aiid  that  it  did  not  give 
stockholders  a  '''ght  of  action  against  de- 
(enflnnf  1!-:,  kness\.  Manhattan  R.  Co.,  ii 
A'.  Y.  S.  R.  732 ;  affirming  22  /.  &»  5.  174; 
affirmed  in  1 13  A'.   Y.  627,  num. 

78.  NeccHHity  of  request  ol',  and  rc- 
fiiNiil  by  dircctorH  to  hiic.'*'—  A  stock- 
holder in  a  railroad  may  bring  a  chancery 
suit  where  the  corporation  or  its  directors 
refuse,  but  the  suit  can  only  be  maintained 
on  the  ground  that  the  rights  of  the  corpo- 
ration are  involved,  and  the  corporation  is 
a  necessary  party  defendant,  Dimenport  v. 
Daws,  18  Wall.  (U.  5.)  626. 

A  stockholder  cannot  bring  a  suit  in  his 
own  name  to  set  aside  an  illegal  tax  on  the 
railroad  of  which  he  is  a  stockholder,  unless 
he  has  first  made  an  ineflfective  effort  to  in- 
duce the  corporation  to  obtain  ihe  relief. 
Huntington  v.  Palmer,  104  U.  S,  482. — 
Distinguishing  Dodge  v.  Woolscy,  18 
How.  (U.  S.)  331.  Following  Hawes  v. 
Oakland,  104  U.  S.  450. — Morgan  v.  New 
Orleans,  M.  ^  C.  R.  Co.,  \  Woods  ( U.  S.)  1 5. 
Atchison,  T.  <S-  S.  F.  R.  Co.  v.  Sumner 
County  Com'rs,  51  Kan.  617,  33  Pac.  Refi. 
312.  Shawhan  v.  Zinn,  79  Ky.  300.  Wilkie 
V.  Rochester  <S-  S.  L.  R.  Co.,  12  //««  (A^.  Y.) 
242. 

And  the  above  rule  applies  where  the 
citizenship  of  a  stockholder  enables  him  to 
sue  in  a  federal  court,  but  where  the  corpo- 
ration itself  could  not  sue  in  the  same 
court.  Af organ  v.  Ne7u  Orleans,  M.  &*  C.  R. 
Co.,  I   Woods  {U.  S.)  15. 

Where  the  legislature  of  a  state  has  re- 
pealed the  charter  of  a  street- rail  road  com- 
pany, and  transferred  its  franchises  and 
track  to  another,  and  the  corporation  re- 
fuses to  seek  a  remedy  in  the  courts,  a 
stockholder  of  the  company  who  asks  an 
injunction  on  the  ground  that  the  repealing 
statute  impairs  the  obligation' of  a  contract 
will  have  a  standing  in  a  court  of  equity. 
Greenwood  V.  Union  Freight  R.  Co.,gAm. 
&^  Eng.  R.  Cas.  526,  loj  U.  S.  13. 

•  When  siockholdprs  may  sue.  Corporation 
refusing  to  sue  upon  rcqufst,  see  nolo,  9  L.  K. 
A.  654. 


Such  a  statute  impairs  the  obligation  of 
the  contract  of  the  charter,  unless  there  is 
reserved  to  the  legislature  the  right  to 
repeal  the  statute  under  which  the  com- 
pany was  organized.  Greenwood  v.  l/nion 
Freight  R.  Co.,  9  Am.  &•  Eng.  R.  Cas.  526. 
icij  U.  J.  13. 

70.  When  Hiicli  requeHt  and  re- 
fiiMiil  need  not  appear.— A  stockholder 
of  a  railroad  company  which  has  located, 
and  partially  constructed,  its  lines,  may 
maintain  a  bill  to  enjoin  a  rival  company 
from  appropriating  its  work  to  its  own  use, 
when  he  shows  that  the  directors  of  his  own 
company  are  acting  in  sympathy  with  the 
rival  compa  ly.  W^eiden/eld  v.  Sugar  Run 
R.  G>.,  51  Am.^'  JCng.  R.  Cas.  505,  48  Fed. 
Rep.  615. 

In  an  action  by  a  stockholder  against  the 
officers  of  the  corporation  to  charge  them 
Willi  a  misappropriation  of  property  or 
funds,  it  is  not  necessary  to  show  an  active 
cfTort  on  the  part  of  plaintiff  to  induce  the 
corporation  to  sue,  where  it  is  apparent 
that  such  effort  would  have  been  fruitless, 
as  where  the  directors  of  the  corporation 
participated  in  the  acts  complained  of. 
Frothingham  v.  Broadway  &>  S.  A.  R.  Co., 
9  Civ.  Pro.  {JV.  Y.)  304.— Following  Barr 
V.  New  York.  L.  E.  &  W.  R.  Co.,  96  N.  Y. 

444- 

Or  where  the  directors  are  under  the 
control  of  the  persons  whose  wrongful  acts 
are  complained  of.  (Dykman,  J.,  dissent- 
ing.) Currier  v.  New  York.  W.  S.  6-  B.  R. 
Co.,  35  //««  (.V.  Y.)  3S5. 

If  it  can  be  made  to  appear  in  any  man- 
ner that  the  corporation  cannot  safely  be 
left  to  obtain  relief  through  the  action  of  its 
officers,  equity  will  interfere  at  the  suit  of  a 
stockholder,  without  proof  of  a  demand 
upon  the  managing  agents  and  their  wrong- 
ful refusal  or  neglect  to  proceed  on  its  behalf. 
CruNilish  V.  Shenandoah  Valley  R.  Co.,  28 
W.  Fa.  623. 

SO.  lli{;lit  to  be  made  parties  to 
snits  at^ainst  corporation— Interven- 
tion.—In  the  absence  of  fraud,  a  decree, 
canceling  bonds  of  one  railroad,  and  a 
mortgage  of  another  road  securing  the 
bonds,  on  a  bill  filed  by  one  company 
against  the  other,  binds  all  the  stockholders 
though  they  be  not  parties.  Beals  v.  Illi- 
nois. M.  &>  T.  R.  Co.,  133  U,  S.  290,  10  Sup. 
Ct.  Rep.  314. 

Where  a  stockholder  has  filed  a  bill 
against   his  corporation    asking   for  a   re- 


330 


STOCKHOLDERS,  81-86. 


m 


M 


ceiver,  he  cannot,  except  in  extraordinary 
cases,  intervene  in  a  subsequent  suit  com- 
menced by  bondholders  asking  for  a  re- 
ceiver and  a  foreclosure,  and  have  that  suit 
stayed  until  his  suit  is  determined.  Penn- 
sylvania Co.  V.  Jacksonville,  T.  &*  K.  VV.  R. 
Co.,  55  Fed.  liep.  131. 

81.  Bight  to  defend  suits  agraiiist 
corporation.— Stockholders,  except  when 
expressly  authorized  by  statute,  are  not  al- 
lowed to  plead  and  defend  for  the  corpora- 
tion, when  the  suit  is  against  it,  and  they 
are  not  parties  on  the  record.  Blackman  v 
Central  R.  &*  B.  Co.,  58  Ga.  189.— Quoted 
IN  Central  Trust  Co.  v.  Marietta  &  N.  G. 
R.  Co.,  48  Fed.  Rep.  14. 

82.  Imp'^ncliment  of  judgment 
against  corporation.— Where  a  stock- 
holder files  a  creditor's  bill  to  impeach  a 
judgment  against  the  corporation,  but  no 
other  stockholder  joins  him,  and  it  has 
been  determined  that  he  is  not  liable  as  a 
stockholder  to  the  creditors  of  the  com- 
pany, his  bill  will  be  dismissed,  but  without 
prejudice.  Atkins  v.  Steacy,  5  Dill.  {I/.  S.) 
381,  «, 

83.  Right  to  attack  legality  of  con- 
solidation, and  set  aside  mortgage 
given  thereon.— The  stockholders  of  sev- 
eral railroa'ls  which  have  been  consolidated 
cannot  maintain  a  bill  to  set  aside  a  mort- 
gage made  by  the  consolidated  company 
upon  its  aggregate  property,  on  the  ground 
tliat  one  of  the  companies  consolidated  had 
no  legal  existence.  Such  a  bill  lies  only  at 
the  instance  of  the  state,  through  the  at- 
torney-general. Rell  V.  Pennsyh'ania,  S. 
<S-  N.  E.  R.  Co.,  (N.f.  Eg.)  10  Atl.  Ref>.  741. 

84.  Uiglit  to  pursue  corporate 
property  fraudulently  disposed  of 
by  directors.  —  As  a  general  rule,  the 
property  of  a  corporation  is  a  trust  fund, 
for  the  benefit  of  its  creditors  and  stock- 
holders, and  they  m.iy,  in  all  cases  where  it 
has  been  fraudulently  and  wrongfully  dis- 
posed of  by  the  directors,  pursue  it  into  the 
hands  of  purchasers  with  notice,  and  assert 
their  lien  upon  it,  or  their  claims  for  its 
value.  Goodin  v.  Cincinnati  &*  W.  Canal 
Co..  1 8  Ohio  St.  169. 

85.  Contribution.  —  After  a  railroad 
company  had  issued  bonds  it  consolidated 
with  another  company  which  guaranteed 
the  bonds.  Plamtiff,  who  was  a  holder  of 
some  of  the  t,onds,  sued  both  companies  to 
recover  thereon.  It  appeared  that  if  the 
guarantor  was  liable  for  the  bonds,  it  would 


have  a  right  to  recover  from  the  stockhold- 
ers of  the  company  issuing  the  bonds,  in- 
cluding plaintiff,  to  the  extent  of  their  un- 
paid subscriptions.  Held,  nevertheless,  that 
a  decree  could  only  be  for  the  payment  of 
the  amount  of  plaintiff's  bonds,  and,  be- 
cause of  a  lack  of  parties,  there  could  be  no 
decree  for  contribution.  Harrison  v.  Ar- 
kansas Valley  R.  Co.,  4  McCrary  ( U.  S.)  264, 
13  Fed.  Rep.  522. 

2.  Remedy  against  the  Corporation. 

86.  In  general. — All  remedies  for  in- 
juries to  the  property  or  rights  of  a  corpora- 
tion must  be  prosecuted  in  its  name,  and  all 
demands  against  the  corporation  must  be 
prosecuted  against  it  by  name,  unless  its 
officers  or  agents  by  fraud  or  misrepresen- 
tation have  rendered  themselves  personally 
liable.  There  is  but  one  case  in  which  a 
stockholder  can  interpose,  and  that  is  where 
the  officers  and  managers  of  the  corpora- 
tion, by  fraud  and  collusion  with  third 
persons,  are  sacrificing,  or  are  about  to  sac- 
rifice and  betray,  the  interests  of  the  corpo- 
ration. Forbes  v.  Memphis,  E.  P.  &*P.  R. 
Co.,  2  IVoods  ((/.  S.)  323. 

The  rights  of  a  stockholder  are  to  meet 
at  stockholders'  meetings,  to  participate  in 
the  profits  of  tne  business,  and  to  require 
that  the  corporate  property  and  funds  shall 
not  be  diverted  from  their  original  purpose ; 
and  if  the  corporation  becomes  insolvent,  to 
have  the  property  applied  to  the  payment 
of  debts  ;  with  the  incidental  right  to  have 
a  certificate  of  his  stock,  to  transfer  it  on 
the  company's  books,  and  to  inspect  these 
books.  For  the  invasion  of  these  rights  by 
the  officers  of  the  company,  he  may  sue  at 
law  or  in  equity,  according  to  the  nature  of 
the  case.  Forbes  v.  Memphis,  E.  P.  &*  P. 
R.  Co.,  2  IVoods  ([/.  S.)  323.— Quoted  in 
Central  Trust  Co.  v.  Marietta  &  N.  G.  R. 
Co.,  48  Fed.  Rep.  14 ;  Farmers'  L.  &  T.  Co. 
v.  Kansas  City.  W.  &  N.  W.  R.Co.,  53  Fed. 
Rep.  182. 

If  a  railroad  company  has  power  to  mort- 
gage its  property  and  franchises  and  issue 
bonds  thereon,  no  suit  to  restrain  such  ac- 
tion will  lie  by  a  common  stockholder,  nor 
by  preferred  stockholders  who  stand  in 
no  better  condition;  especially  where  no 
injury  to  complainant  is  shown.  Thompson 
v.  Erie  R.  Co..  42  How.  Pr.  (N.  V.)  68. 

A  member  of  a  joint-stock  express  com* 
pany  mav  maintain  an  action  against  it  in 


j 


STOCKHOLDERS,  87,  88. 


331 


hold- 
Is,  in- 
ir  un- 
I,  that 
ent  of 
d,  be- 
be  no 
Ar. 
'.)  264, 


the  manner  prescribed  by  statute  (i.  e., 
against  its  president  or  treasurer)  to  re- 
cover for  goods  lost  which  were  delivered 
to  it  for  transportation,  the  same  as  if 
he  was  not  connected  with  the  company. 
IVes/cott  V.  Fat  go,  61  N.  V.  542;  affirmt/ig- 
63  Bard.  349,  6  Lans.  319. 

A  railway  company,  in  an  action  against 
it  by  a  stoclcholder  for  wrongful  conversion 
of  ills  interests,  is  not  precluded  by  the  er- 
roneous estimates  of  its  officials,  embodied 
in  a  published  report,  from  showing  the  true 
value  of  its  assets.  International  &•  G.  N. 
J\.  Co.  V.  Bremond,  4  Am.  &*  Eng.  R.  Cas, 
308.  53  Tex.  96. 

When  it  is  shown  that  the  corporation 
has  ceased  to  exist  either  in  law  or  in  fact, 
or  that  it  has  abandoned  its  corporate  busi- 
ness and  neglected  to  maintain  its  corporate 
existence  by  the  election  of  directors  and 
the  appointment  of  officers  to  manage  its 
affairs,  a  stockholder  may,  without  showing 
more,  bring  suit  on  behalf  of  himself  and 
the  other  stockholders  against  the  corpora- 
tion, or  others  having  assets  belonging  to  it, 
for  the  protection  of  his  rights.  Crumlish 
v.  Shenandoah  Valley  R.  Co.,  28  W.  Va. 
623. 

87.  Who  may  sue  as  a  stockholder. 
— Stockholders  of  a  railroad  may  file  a  bill 
to  restrain  the  company  from  paying  inter- 
est on  the  bonds  of  another  company,  which 
the  defendant  company  had  guaranteed,  on 
the  grouijd  thai  the  guaranty  is  ultra  vires, 
and  not  binding  on  dissenting  stockholders. 
Zahriskie  v.  Cleveland,  C.  &*  C.  R.  Co. ,  23 
How.(U.S.)  381. 

Injunction  will  lie  at  the  instance  of  hold- 
ers of  common  stock  of  railroad  companies 
who  are  entitled  to,  but  are  deprived  of,  the 
right  of  representation,  pending  suit  for  the 
enforcement  of  such  right,  to  restrain  an 
illegal,  disadvantageous,  and  ultra  vires 
purchase  by  the  company  of  another  road. 
Mackintosh  v.  Flint  &*  P.  M.  R.  Co.,  36 
Am.  &*  Eng.  R.  Cas.  340,  34  Fed.  Rep. 
582. 

Under  the  provisions  of  the  charter  of 
the  Jersey  City  &  Bergen  Point  Plank  Road 
Co..  and  the  charter  of  the  Jersey  City  & 
Bergen  Railroad  Co.,  the  occupation  of  a 
part  of  the  ancient  highway  on  which  the 
plank  road  is  constructed,  by  the  railway, 
with  the  consent  of  the  plank-road  company, 
without  the  personal  consent  of  a  stock- 
holder of  the  road  company,  that  company 
having  been  authorized  to  lay  rails  upon 


the  road,  is  no  violation  of  his  rights  as  a 
stockholder.  Story  v.  Jersey  City  &■*  B.  P. 
Plank  Road  Co.,  16  N.J.  Eg.  13. 

And  the  sale  by  the  plank-road  company 
of  the  whole  or  a  part  of  its  road  to  the  rail- 
road company,  without  the  personal  consent 
of  a  stockholder  in  the  plank-road  company, 
is  not  such  an  infringement  of  his  rights  as 
a  stockholder  that  a  court  of  equity  will  in- 
terfere to  restrain  it  by  injunction.  Story  v. 
Jersey  City  &•  B.  P.  Plank  Road  Co.,  16  N. 
J.  Eg.  13. 

A  dissenting  stockholder  of  a  railroad 
company  cannot  have  a  preliminary  injunc- 
tion to  prevent  his  company  from  becoming 
the  purchaser,  under  authority  of  a  statute 
to  sell  public  improvements  belonging  to 
the  state.  His  rights  can  only  be  deter- 
mined on  the  final  hearing.  Mott  v.  Penn- 
sylvania R.  Co.,  y)  Pa.  St.  9. 

A  stockholder  in  one  of  four  companies 
consolidated  under  Pa.  Act  of  March  24, 
1865,  who  has  not  converted  his  stock  into 
the  stock  of  the  consolidated  company,  has 
no  footing  for  a  stockholder's  bill  against 
that  company.  Philadelphia  &*  E.  R,  Co. 
V.  Catawissa R.  Co.,  53  Pa.  St.  20. 

Where  a  railroad  is  chartered  between 
certain  termini,  and  built,  and  afterwards 
the  legislature  grants  permission  to  extend 
the  road,  and  a  majority  of  the  stockholders 
accept  this  amendment  to  the  charter,  but 
against  the  wish  of  plaintiff,  a  stockholder, 
he  is  entitled  to  an  injunction  to  prevent 
the  company  from  using  its  funds  or  credit 
to  extend  the  road,  on  the  ground  that  the 
extension  is  a  fundamental  change  in  the 
origmal  purpose  of  the  corporation  and  not 
binding  on  the  individual  stOvik holders. 
Stevens  v.  Rutland  &*  B.  R.  Co.,  29  Vt.  545. 
—Approving  Hartford  &  N.  H.  R.  Co.  v. 
Croswell,  5  Hill  (N.  Y.)  385.  Distinguish- 
ing Revere  v.  Boston  Copper  Co.,  15  Pick. 
(Mass.)  351.  Quoting  Col  man  v.  Eastern 
Counties  R.  Co.,  10  Beav.  i ;  Middlesex 
Turnpike  Corp.  v.  Swan,  10  Mass.  384. 
Reviewing  Union  L.  &  C.  Co.  v.  Towne,  i 
N.  H.  44;  Middlesex  Turnpike  Corp.  v. 
Locke,  8  Mass.  268.— Approved  in  Mowrey 
V.  Indianapolis  &  C.  R.  Co.,  4  Biss.  (U.  S.) 
78;  Zabriskie  v.  Hackensack  &  N.  Y.  R. 
Co.,  18  N.  J.  Eq.  178.  Followed  in  Leo 
V.  Union  Pac.  R.  Co.,  16  Am.  4  Eng.  R. 
Cas.  452,  19  Fed.  Rep.  283 

88.  Necessity  of  previous  applica- 
tion for  redress  of  wrongs  com- 
plained of.— A  bill  filed  by  a  minority  in 


wm 


333 


STOCKHOLDERS,  80,  90. 


I;  )■  ' 


ti; 


number  and  value  of  the  shareholders  of  a 
corporation  against  the  corporation  itself 
and  its  officers  will  not  be  entertained  un- 
less it  shows  that  application  was  first  made 
by  the  complainants  to  the  board  of  direc- 
tors, or  to  the  stockholders,  to  redress  the 
wrongs  complained  of,  or  for  authority  to 
prosecute  the  suit  in  the  name  of  the  com- 
pany, or  sets  out  facts  showing  that  it  could 
not  be  done,  or  that  it  was  not  reasonable 
to  require  it.  Roman  v.  Woolfolk,  98  Ala. 
219,  13  So.  Rep.  212. 

When  a  bill  is  filed  by  individual  share- 
holders without  previous  application  to  the 
directors  or  shareholders  for  redress  of 
wrongs  complained  of,  or  good  cause  shown 
for  not  doing  so,  and  application  is  made 
for  an  injunction  and  the  appointment  of  a 
receiver,  the  court  will  not  consider  wliether 
the  averments  of  the  bill  alone  excuse  this 
omission,  but  will  consider  also  the  sworn 
answers  and  affidavits  introduced  on  the 
hearing.  Roman  v.  Woolfolk,  <^  Ala.  219, 
1 3  So.  Rep,  2 1 2. 

It  is  the  right  of  any  stockholder  in  the 
Macon  &  Brunswick  railroad  to  require  tlie 
company  to  set  aside  the  two  percent,  sink- 
ing fund  required  by  the  legislatures  of 
1865-66,  on  its  indorsement  of  the  l)i)nds  of 
the  company;  but  it  must  appear,  before  a 
court  of  equity  is  resorted  to,  that  a  fair 
effort  has  been  made  by  the  complaiDant  to 
procure  .his  to  be  done  by  the  company. 
Hazlehurst  v.  Savannah,  G.  &^  N.  A.  R.  Co., 
43  Ga.  13. 

A  stockholder  may  file  a  bill  to  restrain 
or  redress  a  wrong,  wiiere  the  board  of 
directors  are  themselves  the  wrongdoers,  or 
refuse  to  sue;  and  the  same  rule  applies 
where  there  are  two  boards,  both  claiming 
to  have  a  right  to  act,  but  where  the  ones 
claiming  to  be  the  legal  directors  refuse  to 
sue  the  other  board  which  is  charged  as  the 
wrong-doer.  Pond  v.  Vermont  Valley  R.  Co., 
12  Blatt:hf.{U.S.)  2S0. 

Plaintiffs  cannot  be  defeated  of  their 
right  to  sue  in  a  federal  court  by  the  fact 
that  the  members  of  such  legal  board  of 
directors  have,  as  stockholilers,  the  same 
interests  as  plaintiffs,  or  that  they  desire 
the  success  of  plaintiffs,  nor  by  the  fact  that 
the  refusal  of  such  legal  board  of  directors 
was  in  order  to  drive  plaintifTs  to  bring  the 
suit  themselves,  or  even  to  enable  plaintifTs 
to  bring  their  suit  in  the  federal  court. 
Pond  V.  Vermont  Valley  R.  Co.,  12  Blatchf. 
{IJ.  S.)  a8o. 


80.  Action  to  restrain  exercise  of 
corporate  franchise.'"  —  A  stockholder 
in  a  corporation,  the  charter  of  which,  by 
Mass.  statute  of  1830,  ch.  81,  is  subject  to 
alteration,  amendment  or  repeal,  at  the 
pleasure  of  the  legislature,  cannot  main- 
tain a  bill  in  equity  to  restrain  the  cor- 
poration from  engaging  in  a  new  enter- 
prise, in  addition  to  that  contemplated  by 
the  charter,  but  of  the  same  kind,  if  it  is 
sanctioned  by  an  express  legislative  grant, 
and  by  a  vote  of  the  majority  of  the  stock- 
holders. Dur/ee  v.  Old  Colony  &*  F.  R.  R. 
Co.,  5  Allen  {Mass.)  230.— NoT  FOLLOWED  IN 
Zabriskie  7/.  Hackensack  &  N.  Y.  R.  Co., 
18  N.  ].  Eq.  178. 

A  court  of  equity  will  interfere  on  behalf 
of  a  single  stockholder,  if  he  can  show  that 
the  corporation  is  employing  its  statutory 
powers,  funds,  etc.,  for  the  accomplishment 
of  purposes  not  within  the  scope  of  its  in- 
stitution, and  an  injunction  in  such  case 
will  be  granted.  But  it  is  well  settled  that, 
acting  within  the  scope  and  in  obedience  to 
the  constitution  of  the  corporation,  the  will 
of  the  majority,  duly  expressed  at  a  legally 
constituted  assembly,  must  govern.  Gif- 
ford  V.  New  Jersey  R,  &*  T.Co.,\o  N.  J. 
Eq.  171. 

Where  a  stockholder  sues  on  behalf  of 
himself  and  all  others  having  a  common 
interest,  and  alleges  that  the  officers  of  the 
corporation  control  it,  he  may  maintain 
the  action,  although  he  is  not  a  creditor 
of  the  company,  and  obtain  such  relief 
as  does  not  depend  upon  N.  Y.  Rev.  St. 
§?  53-35,  relating  to  "proceedings  against 
corporations  in  equity."  Ramsey  \.  Gould, 
57  Barb.  (A'.  1'.)  398,  8  Abb.  Pr.  N.  S.  174, 
39  How.  Pr.  62 ;  affirmed  in  3  Lans.  181. 

00.  Action  to  restrain  illcgral  as- 
sessments or  calls.— A  company  being 
authorized  to  construct  a  certain  railway  or 
part  of  it,  built  and  put  in  operation  part  in 
due  time,  and  after  the  expiration  of  ten 
years  limited  by  the  Consolidated  Railway 
Act  (22  Vict.  c.  66,  §  1 17)  made  calls  with  a 
view  of  constructing  the  remainder.  Held, 
illegal ;  and  that  consequently  any  share- 
holder was  entitled  to  restrain  proceedings, 
even  though  no  other  shareholder  objected 
thertto.  Dumble  v.  Peterborough  &•  L.  C. 
R.  Co.,  12  Grant's  Ch.  {U.  C.)  74.— Appro v- 


*  Restraining  exercise  of  corporate  franchise. 
Action  by  one  in  behalf  of  others,  see  note,  9  L. 
R.  A,  873. 


1 


STOCKHOLDERS,  91-93. 


333 


ING  Forrest  v.  Manchester,  S.  &  L.  R.  Co., 
7  Jur.  N.  S.  887;  White  v.  Carmarthen,  etc., 
R.  Co.,  I  H.  &  M.  786. 

91.  Action  to  recover  assessments 
paid  on  stoclc.— A.,  B.  and  C.  owned  all 
the  stock  of  a  street-railway  company 
which  was  fully  paid  up.  To  raise  money 
for  the  uses  of  the  company  under  a  volun- 
tary assessment  of  the  stock,  each  jiaid  tlie 
company  a  proportionate  amount.  A.  sold 
his  shares  to  B.  and  C.  and  then  brought 
suit  against  the  company  in  which  he  re- 
covered the  amount  paid  upon  the  volun- 
tary assessment.  B.  became  bankrupt  and 
his  stock  was  purchased  by  D.  B.  then 
brought  suit  against  the  company  to  re- 
cover the  amount  paid  by  him  upon  the 
assessment.  The  cause  was  tried  before  a 
referee  under  Pa.  Act  of  1874,  who  re- 
ported as  a  fact  that  the  payment  of  as- 
sessments was  made  as  voluntary  contri- 
butions and  not  as  loans  to  the  company. 
Held,  (i)  that  the  findings  of  fact  by  a 
referee  are  as  binding  as  the  special  ver- 
dict of  a  jury;  (2)  that  the  recovery  of  A. 
against  the  company  did  not  operate  as  a 
withdrawal  of  his  proportion  of  the  volun- 
tary contributions  and  thus  leave  the  con- 
tribution of  B.  without  consideration ;  (3) 
that  a  shareholder  in  a  corporation  has  no 
distinct  and  individual  title  to  the  moneys 
or  property  of  the  corporation ;  (^)  that 
under  the  findings  of  the  referee  B.  could 
not  recover.  Bidwell  v.  Pittsburgh,  O.  &* 
E.  L.  Pass,  a:  Co.,  114  Pa.  St.  535,  6  At/. 
Rep.  729. 

92.  Action  to  restrain  misuse  of 
corporate  funds. — Certain  stockholders 
may  restrain  the  directors  of  a  company 
from  laying  down  rails  under  a  contract 
which  they  have  entered  into,  until  the  va- 
lidity of  the  contract  has  been  determined 
by  the  courts.  Beman  v.  Rufford,  6  Eng. 
L.  6-  Eq.  106,  \l  Jur.  914. 

Though  a  stockholder  may  have  an  in- 
junction to  restrain  the  directors  from  ap- 
plying the  funds  of  the  corporation  in  the 
completion  of  a  part  only  of  a  railroad, 
to  the  exclusion  of  the  remainder,  yet  where 
such  stockholder  remains  silent  for  eigh- 
teen months,  with  knowledge  that  it  is  the 
intention  to  abandon  a  part  of  the  road, 
while  the  directors  are  expending  large 
sums  of  money  in  the  completion  of  the 
other  portion,  an  injunction  will  be  refused. 
Graham  v.  Birkenhead,  L,  &*  C.J.  R.  Co.. 
6  Eng.  L.  &*  Eg.  132. 


A  stockholder  in  one  company  may  file  a 
bill  on  behalf  of  himself  and  other  stock- 
holders to  restrain  the  execution  of  an  u/tra 
vires  agreement  entered  into  between  his 
company  and  another,  against  the  policy  of 
the  acts  creating  tlieni.  Winch  v.  Birken- 
head, L.  <S-  C.  J.  R.  Co..  i  DeG.&'  S.  562, 
\6Jur.  1035. 

A  stockholder  may  enjoin  his  corporation 
from  employing  its  property  or  powers  for 
a  purpose  wholly  diflereiit  from  that  for 
wliich  it  was  created,  yet  he  has  no  right  to 
enjoin  it  from  doing  what  is  in  the  direct 
furtherance  of  the  object  of  its  creation, 
and  is  for  the  benefit  of  the  stockholders 
as  such,  though  it  may  be  for  their  injury  in 
another  character;  or  the  interest  of  some 
other  person,  or  the  public,  may  be  injuri- 
ously adected  by  the  act.  Baltimore  &»  O. 
R.  Co.  V.  Wheeling,  13  Graft.  ( Va.)  40. 

93.  Action  to  restrain  payment  of 
dividends. — After  a  company  had  issued 
preferred  stock  it  consolidated  with  defend- 
ant company,  which  assumed  the  former's 
obligations.  No  dividends  were  paid  on 
the  preferred  stock  from  1857  to  1863,  al- 
though divideiids  were  paid  on  the  common 
stock.  In  1875  plaintiff,  a  holder  of  pre- 
ferred stock,  filed  a  bill  to  restrain  a  further 
payment  on  the  common  stock  until  the 
dividends  from  1857  to  1863  were  paid. 
Held:  (I)  that  he  had  a  right  to  maintain 
the  bill,  and  to  the  relief  sought,  where  there 
was  nothing  to  show  that  the  delay  had  so 
injured  defendant  as  to  work  an  estoppel; 

(2)  that  the  statute  of  limitations  did  not 
constitute  a  bar,  where  the  original  demand 
was  against  a  foreign  corporation,  and  the 
consolidation  was  effected  within  six  years; 

(3)  that  plaintiflf  was  entitled  to  dividends 
accrued  before  the  assignment  of  the  stock 
to  him,  with  interest.  Boardman  v.  Lake 
Shore  &»  M.  S.  R.  Co.,  4  Am.  &*  Eng.  R. 
Cas.  265,  84  N.  Y.  157. —  Distinguishing 
Kent  V.  Quicksilver  Min.  Co.,  78  N.  Y.  184; 
Coles  V.  Bank  of  England,  10  Ad.  &  El. 
437 ;  Pickard  v.  Sears,  6  Ad.  &  El.  474 ; 
Prendergast  v.  Turton.  i  Y.  &  C.  98 ;  Staf- 
ford V.  Stafford,  i  De  G.  &  J.  193  ;  Nicholls 
V.  Leeson,  3  Atk.  573;  Currie  v.  Goold,  2 
Mad.  Ch.  426 ;  Matthews  v.  Great  Northern 
R.  Co.,  5  Jur.  N.  S.  284. 

An  action  cannot  be  maintained  to  re- 
strain the  bringing  of  numerous  and  vex- 
atious suits  against  plaintiff  by  any  or  all 
of  its  stockholders,  on  account  of  an  agree- 
ment concerning  the  payment  and  prefer- 


884 


STOCKHOLDERS,  94,  06. 


i 


) 

i 
\ 

\ 

f 

i 

1 

\ 

; 

1  \ 

ment  of  stock,  which  agreement  was  not  ap- 
proved by  the  majority  of  the  stockholders. 
Manhattan  R.  Co.  v.  New  York  El.  R.  Co., 
29  Hun  (N.  Y.)  309. 

Where  an  officer  of  a  corporation  issues 
spurious  stock,  a  holder  of  genuine  stock 
may  enjoin  the  corporation  from  declaring 
dividends  except  to  such  stockholders  as 
are  ascertained  to  be  genuine.  Underwood 
V.  New  York  S*  N.  H.  R.  Co.,  17  How.  Pr. 
(N.  Y.)  537. 

A  stockholder  may  maintain  an  action  to 
enjoin  the  payment  by  his  company  of  a 
dividend,  where  the  directors  are  about  to 
misapply  the  funds  of  the  corporation  in 
paying  such  dividend,  there  being  in  fact 
no  money  earned  for  such  a  purpose.  Car- 
penter V.  Ne7v  York  *•  N.  H.  R.  Co.,  5  Abb. 
Pr.{N.  Y.)277. 

94.  Action  to  restrain  granting  of 
free  passes.— A  court  of  equity  will  not 
grant  an  injunction  merely  because  of  the 
fears  or  apprehensions  of  the  party  applying 
for  it.  So  it  will  not  grant  an  injunction 
at  the  suit  of  a  stockholder  to  restrain  his 
company  from  granting  free  passes  to  cer- 
tp<a  state  officers,  merely  because  it  has 
done  so  in  the  past,  and  he  is  apprehensive 
that  it  will  do  so  again.  Goodwin  v.  New 
York,  N.  H.  &*  H.  R.  Co.,  43  Conn.  494,  ti 
Am.  Ry.  Rep.  9. 

3.  Remedy  agai:%st  Directors. 

95.  In  general.— The  relation  of  stock- 
holders to  the  corporation  being  that  of 
cestuis  que  trustent,  the  action  of  common 
directors  of  two  railroad  corporations,  in 
matters  where  the  interests  of  the  roads 
conflict,  may  be  enjoined  upon  a  stock- 
holder's bill  filed  for  that  purpose.  Pearson 
V.  Concord  R.  Corp.,  13  Am.  &•  Efig.  R.  Cas. 
102,  62  N.  H.  537,  13  Am.  St.  Rep.  590. 

In  actions  by  stockholders  of  corpora- 
tions which  assail  the  acts  of  their  directors 
or  trustees,  courts  will  not  interfere  unless 
the  corporate  powers  have  been  illegally  or 
unconscieniiously  executed,  or  unless  it  be 
made  to  appear  that  the  acts  complained  of 
were  fraudulent,  or  collusive  and  destructive 
of  the  rights  of  the  stockholders;  mere 
errors  of  judgment  are  not  sufficient  as 
grounds  for  equity  interference.  Leslie  v. 
Lorillard,  no  N.  K.  519,  18  A^.  E.  Rep.  363. 
Deaderick  v.  Wilson,  8  Baxt.  (Tenn.)  108. 

Or  in  cases  where  the  corporate  property 
is  threatened  with  waste  or  misapplication. 


Carpenter  v.  New  York  &*  N.  H.  R.  Co.,  $ 
Abb.  Pr.  (N.  Y.)  277. 

In  a  general  sense  a  corporation  may  be 
regarded  as  the  trustee  of  its  creditors,  but 
not  of  its  stockholders.  The  directors 
stand  in  the  relation  of  trustees  to  the  stock- 
holders, and  between  them  exists  the  rela- 
tion of  trustee  and  cestui  que  trust.  So 
where  it  is  sought  to  have  a  dividend  de- 
clared the  directors  should  be  made  parties, 
as  the  corporation  can  act  only  through 
them.  Karnes  v.  Rochester  &*  G.  V.  R.  Co.,  4 
Abb.  Pr.  N.  S.  (N.  Y.)  107. 

While  it  may  be  conceded  that  the  holder 
of  a  single  share  of  stock  may  call  upon 
the  directors  of  the  corporation  for  an  ac- 
count, and  perhaps  may,  when  it  is  apparent 
that  some  act  is  threatened  subversive  of 
his  interest,  invoke  the  aid  of  a  court  of 
equity  to  restrain  the  act,  although  the 
other  stockholders,  representing  a  majority 
of  the  stock,  are  opposed  to  his  view, 
and  approve  the  action  of  the  directors, 
still  the  court  should  interpose  by  injunc- 
tion only  where  the  threatened  act  is  un- 
questionably wrong,  and  the  case  made  is 
free  from  reasonable  doubt.  Gere  v.  New 
York  C.  A-  H.  R.  R.  Co.,  19  Abb.  N.  Cas. 
{N.  Y.)  193. 

To  enable  a  stockholder  to  maintain  an 
action  to  restrain  the  directors  from  the  ex- 
ercise of  their  corporate  powers,  and  for 
the  appointment  of  a  receiver,  the  risk  and 
responsibility  must  be  upon  him.  If  it  ap- 
pears that  other  persons,  whose  interests 
are  hostile  to  the  company,  have  agreed 
with  plaintif!  to  bear  the  expenses  of  the 
litigation,  any  relief,  especially  upon  an  in- 
terlocutory motion,  will  be  refused.  He 
must  show  that  he  is  acting  bona  fide.  Bel- 
mont v.  Erie  R.  Co.,  52  Barb.  (N.  Y.)  637.— 
Approving  Forrest  v.  Manchester,  S.  &  L. 
R.  Co.,  7  Jur.  N.  S.  887  ;  Rogers  v.  Oxford, 
W.  &  W.  R.  Co.,  2  De  G.  &  J.  674.  Quot- 
ing Filder  v.  London,  B.  &  S.  C.  R.  Co.,  1 
H.  &  M.  489;  Waterbury  v.  Merchants' 
Union  Exp.  Co.,  50  Barb.  157. 

Wrongs  sustained  by  stockholders  by  the 
mismanagement  of  the  corporate  property 
by  their  officers  are  private  wrongs;  and 
where  they  sue  as  individuals,  they  must 
show  that  their  private  rights  are  aflected. 
Wetmore  v.  Story,  3  Abb.  Pr.  (N.  Y.)  262. 

Where  it  appears  that  the  directors  have 
fraudulently  managed  the  business  so  as  to 
wreck  the  corporation,  a  stockholder  ought 
to  have  the  fullest  opportunity  to  unearth 


STOCKHOLDERS,  96. 


335 


J 


the  frauds  by  an  examination  of  the  de- 
fendants ;  but  the  application  must  state  the 
substance  of  the  cause  of  action.  It  is  due 
to  the  administration  of  justice  that  the 
court  whose  aid  is  invoked  should  know 
thai  those  asking  for  its  process  have  been 
injured  pecuniarily  by  the  wrongful  donigs 
of  the  directors.  "oorman  v.  Pierce,  56 
H(nv.  Pr.  {N.  V.)  251. 

90.  Who  may  Hiie.— To  enable  a  stock- 
holder who  holds  a  small  amount  of  stock 
to  contest  certain  acts  of  the  directors  on 
the  ground  that  they  are  ultra  vires,  when 
the  majority  of  stockholders  make  no  ob- 
jection, it  must  appear  that  he  was  a  stock- 
holder at  the  time  of  the  occurring  of  the 
acts  complained  of,  or  that  the  stock  has 
since  devolved  upon  him  by  operation  of 
law.  and  that  he  has  exhausted  all  means 
in  his  power  to  obtain  redress  through  the 
corporation  itself.  Dimpfelf  v.  Ohio  &-  M, 
A'.  Co.,  16  Am.  <S-  Eng.  R.  Cas.  461,  no  (/. 
S.  209,  3  Sup.  Ct.  Rep.  573.— Followed  in 
Weidenfeld  v.  Allegheny  &  K.  R.  Co.,  47 
Fed.  Rep.  ix.—Frothingham  v.  Broadway 
&*  S.  A.  R.  Co.,  9  Civ.  Fro.  {N.  V.)  304. 

A  person  who  has  no  shares  standing  in 
his  name  on  the  books  of  a  corporation  is 
not  a  stockholder  within  the  rules  of  equity 
allowing  a  stockholder  to  maintain  an  action 
against  defaulting  officers,  where  the  corpo- 
ration omits  to  prosecute ;  although  he  holds 
certificates  of  stock  issued  by  the  corpora- 
tion to  other  persons,  with  powers  of  attor- 
ney authorizing  the  transfer  of  such  shares 
to  him,  executed  by  the  persons  in  whose 
names  the  shares  stand  registered  on  the 
books  of  the  corporation  ;  and  although  the 
corporation  has,  on  demand,  wrongfully  re- 
fused to  allow  such  transfer  to  be  made  to 
him.  Hea/A  v.  Erie  R.  Co.,  8  Blatchf.  {U. 
S.)  347.  — Distinguishing  Foss  v.  Har- 
bottle,  2  Hare  461  ;  Mozley  v.  Alston,  i 
Phillips  790;  Gray  v.  Lewis,  L.  R.  8  Eq. 
526 ;  Allen  v.  Curtis,  26  Conn.  456 ;  Samuels 
V.  Holliday,  McCahon  (Kan.)  214;  Memphis 
City  V.  Dean,  8  Wall.  (U.  S.)  64.  Explain- 
ing Dodge  V.  Woolsey,  18  How.  (U.  S.)  341 ; 
Bronson  v.  La  Crosse  &  M.  R.  Co.,  2  Wall. 
283.  Quoting  March  v.  Eastern  R.  Co.,  40 
N.  H.  548 ;  Peabody  v.  Flint,  6  Allen  (Mass.) 
52 ;  Hoole  v.  Great  Western  R.  Co.,  L.  R. 
3  Ch.  262 ;  Hersey  v.  Veazie,  24  Me.  12. 

A  transferee  of  stock  under  an  unrecorded 
transfer,  who  is  not  recognized  by  the  cor- 
poration as  a  member,  cannot  sue  to  enforce 
corporate  righu,  or  to  restrain  threatened 


wrongs  on  the  corporate  interest.  Brown 
v.  Duluth,  M.  &*  N.  R.  Co.,  54  Am.  &*  Eng. 
R.  Cas.  219,  S3  Fed.  Rep,  889. 

Plamtiff  sued  as  a  creditor  and  stock- 
holder uf  a  railway  company,  for  the  pur- 
pose, among  other  things,  of  compelling  the 
officers  of  the  company,  who  were  made  de- 
fendants, and  who  were  charged  as  having 
the  control  of  the  affairs  of  the  corporation, 
to  account  for  their  ofhcial  conduct  in  the 
disposition  of  funds  and  property,  and  to 
obtain  their  suspension  or  removal.  It  was 
objected  that  he  had  purchased  his  bonds 
and  stock  with  the  intent  to  commence  an 
action  thereon,  and  that  such  purpose  was 
a  violation  of  N.  Y.  Rev.  St.  288,  §  71. 
Ne/d,  that  the  court  must  look  to  the  cause 
of  action  shown,  and  the  judgment  de- 
manded, and  not  to  the  motives  or  pur- 
poses elsewhere  avowed  ;  and  that  he  had  a 
right  to  sue,  if  he  was  in  fact  the  owner  of 
bonds  and  stock  in  the  company.  Ramsey 
v.  Gould,  57  Bari.  (N.  V.)  398,  8  AM.  Pr. 
N.  S.  1 74,  39  How  Pr.  62 ;  affirmed  in  3 
Lans.  181. 

His  bringing  the  suit  after  having  become 
invested  with  the  bonds  and  stock  is  not 
bad  faith,  such  as  the  courts  will  relieve 
against.  Ramsey  v.  Gould,  57  Barb.  {N.  Y.) 
398,  8  Adb.  Pr.  N.  S.  174,  39  How.  Pr.  62 ; 
affirmed  in  3  Lans.  181. 

In  such  an  action  the  plaintiff  has  no  in- 
equitable advantage  which  he  is  seeking  to 
enforce  against  the  defendants.  His  buy- 
ing the  stock  and  bonds  of  the  company  was 
no  wrong  done  them,  with  whatever  intent 
it  was  done.  The  relative  rights  of  the 
parties  are  the  same  as  if  the  suit  were 
brought  by  the  plaintiff's  vendor.  The  in- 
tent with  which  he  purchased  does  not 
change  or  affect  those  rights  or  raise  any 
equities  respecting  them,  in  favor  of  the  de- 
fendants. In  regard  to  them  his  hands  are 
"  clean,"  and  the  rule  of  equity  requires  no 
more.  Ramsey  v.  Gould,  57  Barb.  {N.  Y.) 
398,  iAbb.  Pr.  N.  S.  174,  39  How.  Pr.  62; 
affirmed  in  ^  Lans.  181. 

One  who  only  claims  to  be  entitled  to 
stock  in  a  corporation,  under  an  agreement 
with  another  corporation,  specific  perform- 
ance of  which  he  seeks,  has  no  legal  status 
whatever  to  enforce  any  claim  which  the 
corporation  may  have  against  its  officers  for 
malfeasance  in  office,  until  he  has  recovered 
the  shares  of  stock  to  which  he  alleges  him- 
self to  be  entitled.  Stanton  v.  Missouri  Pae. 
R.  Co.,  15  Civ.  Pro.  296,  2  A^  Y.  Supp.  298. 


336 


STOCKHOLDERS,  97,98. 


1 

i 

1t 


4\ 


i» . 


97.  Necessity  '*(  showing  retUsal 
of  corporation  to  sue.  —  An  action 
againsl  an  officer  of  a  corporation,  for  mis- 
appropriation of  corporate  funds,  or  for 
damages,  for  waste  or  destruction  of  cor- 
porate capital  through  misfeasance  in  office, 
or  violation  of  duty,  cannot  be  brought  by  a 
stockholder  unless  the  corporation  refuses 
to  sue,  and  in  case  of  such  refusal  the  cor- 
poration must  be  made  a  defendant ;  and  this 
rule  is  not  aflecttd  by  New  York  Code  Civ. 
Pro.  §  1782,  authorizing  actions  for  such 
purposes  "  by  a  creditor  of  the  corporation 
or  by  a  trustee,  director,  manager  or  other 
officer  of  the  corporation,  having  a  general 
superintendence  of  its  concerns."  Neither 
does  section  452,  providing  that  "the  court 
may  determine  the  controversy  as  between 
the  parties  before  it,  where  it  can  do  so  with- 
out prejudice  to  the  rights  of  others,  or  by 
saving  their  rights,"  apply  to  an  action  by  a 
stockholder  where  the  corporation  is  not 
made  a  party.  Slromeyer  v.  Combes,  \  5  Daly 
29,  2  N.  Y.  Supp.  232,  i&  N.  V.  S.  A'.  154. 
Stanton  v.  Missouri  Pac,  R.  Co.,  1 5  Civ.  Pro. 
296,  2  N.  Y.  Supp.  298. 

Unless  the  corporation  or  its  officers, 
upon  being  requested,  refuse  to  prosecute 
the  action,  or  unless  it  appears  that  such  a 
request  would  be  useless.  Doud  v.  Wiscon- 
sin, P.  &*  S.  R.  Co.,  65  Wis.  108,  25  N.  W. 
Rep.  533.  —  DiSTiNGUiPHiNG  Dousman  v. 
Wisconsin  &  L.  S.  M.  &  S.  Co.,  40  Wis.  418; 
Wood  V.  Union  Gospel  Church  BIdg. 
Assoc,  63  Wis.  9. 

If  such  an  action  is  brought  by  a  stock- 
holder, an  averment  of  the  refusal  of  the 
corporation  to  sue  is  essential  to  the  suffi- 
ciency of  the  complaint,  and  the  omission 
of  such  averment  may  be  taken  advantage 
of  by  demurrer  or  by  an  objection  to  any 
evidence.  Doud  v.  Wisconsin,  P.  &*  S.  R. 
Co.,  65  Wis.  108,  25  A^  W.  Rep.  533. 

Neither  can  a  stockholder  maintain  an  ac- 
tion against  the  president  of  the  corpora- 
tion for  damages  for  a  fraudulent  disposition 
of  property  by  a  writing  signed  by  the  pres- 
ident individually.  If  he  was  not  acting  in 
an  official  capacity,  his  act  was  nugatory. 
Stromeyer  v.  Combes,  15  Daly  29,  2  N.  Y. 
Supp.  232.  18  A^.  Y.  S.  R.  154. 

98.  Action  for  neglect  of  duty  and 
of  purposes  of  the  organization.  — 
A  bill  by  a  stockholder  to  compel  officers  of 
a  corporation  to  account '  *  a  misapplication 
of  corporate  funds  need  not  aver  that  the 
complainant  has  applied  to  the  corporation 


or  its  board  of  directors  to  bring  the  suit* 
and  that  they  have  refused,  where  the  acts 
complained  of  are  ultra  vires,  or  beyond  the 
power  of  the  corporation  to  affirm  or  sanc- 
tion.   Ncat/t  v.  Erie  R.  Co.,  8  BlatchJ.  ( U. 

s.)  347. 

If  the  corporation  refuses  to  call  to  ac- 
count, by  proper  legal  proceedings,  its  di- 
rectors and  officers  who  are  abusing  their 
trust,  misapplying  the  funds  of  the  corpora- 
tion, and  receiving  profits  from  contracts 
made  by  other  parties  with  the  corporation 
through  their  aid,  or  if  such  corporation  is 
still  under  the  control  of  those  who  neces- 
sarily must  be  made  defendants  in  such  pro- 
ceedings, so  that  it  would  he  a  mockery  to 
require  or  permit  a  suit  against  them  to  be 
brought  and  prosecuted  under  their  man- 
agement, the  stockholders  who  are  the  real 
parties  in  interest,  or  a  part  of  them,  may 
maintain  an  action  to  make  such  officers, 
and  all  parties  who  have  participated  with 
said  officers  in  their  unlawful  transactions, 
account  for  their  wrongs  and  frauds ;  and 
the  corporation  is  a  proper  party  defendant 
with  them.  Ryan  v.  Leavenworth,  A.  &» 
N.  W.  R.  Co.,  21  Kan.  365. 

Where  the  managers  of  a  railroad  cor- 
poration, acting  in  its  interests,  buy  a  con- 
trolling interest  in  the  stock  of  a  connecting 
road  for  the  purpose  of  making,  with  them- 
selves as  controlling  managers  of  the  latter 
road,  contracts  more  favorable  to  the  for- 
mer, and  accomplish  their  purpose,  the 
question  whether  the  contracts  are  fair  and 
just  is  immaterial  in  a  stockholder's  in- 
junction suit  to  restrain  the  execution  of 
the  contracts.  Pearson  v.  Concord  R.  Corp., 
13  Am.  &'Eng.R.  Cas.  102,62  A^.  //.  537, 
13  Am.  St.  Rep.  590.— Reviewing  United 
States  Rolling  Stock  Co.  v.  Atlantic  &  G. 
W.  R.  Co.,  34  Ohio  St.  465 ;  Flagg  v.  Man- 
hattan R.  Co.,  20  Blatchf.  (U.  S.)  142. 

One  or  more  stockholders  can  maintain, 
for  the  benefit  of  a  corporation,  a  suit 
against  its  directors  for  not  carrying  out 
the  purposes  of  the  organization  and  for 
abandoning  the  duties  of  their  offices.  It 
seems  that  relief  would  be  as  well  secured 
by  such  suit  if  the  prayer  in  their  petition 
was  for  individual  relief  as  if  for  relief  in 
name  of  the  corporation.  Becker  v.  Gulf 
City  St.  R.  &*  R,  E.  Co.,  80  Tex.  473,  15  S. 
W.  Rep.  1094. 

^  shareholder  of  a  railway  company  can- 
not maintain  a  bill  against  the  company  and 
its  managing  director,  based  on  the  mil- 


STOCKHOLDERS,  U!>,  100. 


337 


conduct  of  the  latter,  without  showing  that 
the  directors  refused  to  consent  to  a  suit  in 
the  name  of  the  company;  and  it  is  not 
enough  that  the  bill  alleges  that  on  ac- 
count of  the  attitude  of  the  directors  such 
an  application,  if  made,  would  be  unavail- 
ing. McMurray  v.  Northern  R.  Co.,  23 
Grant's  Ch.  {U.  C.)  134. 

A  shareholder  in  a  railroad  company  can- 
not file  a  bill  to  compel  the  managing  di- 
rector to  account  for  moneys  and  to  answer 
for  other  misconduct  in  ofhce,  witliout 
showing  that  the  directors  or  shareholders 
had  refused  to  consent  to  a  suit  in  the  name 
of  the  company.  McMurray  v.  Northern 
K.  Co.,  22  Grant's  Ch.  {(/.  C.)  476. 

00.  Actions  to  restrain  fraudulent 
acts  of  directors.— Where  any  fraud  has 
been  perpetrated  by  directors  by  which  the 
property  or  interest  of  stockholders  is  af- 
fected, they  may  come  in  as  parties  to  a  suit 
against  the  company,  and  ask  that  their 
property  shall  be  relieved  from  the  effect  of 
such  fraud.  Bayliss  v.  Lafayette,  M.  &*  B. 
R.  Co.,  ZBiss.  (U.S.)  193. 

An  association  of  fifteen  persons,  includ- 
ing S.,  G.  and  C,  was  formed  to  obtain  a 
contract  for  the  construction  of  the  railroad 
of  a  corporation  whereof  S.  was  president 
and  G.  treasurer,  and  to  gain  control  of  the 
corporation  and  its  property  by  issuing  to 
the  association,  as  part  payment  of  the 
work,  a  majority  of  the  stock  of  the  corpo- 
ration. At  a  meeting  of  a  bare  quorum  of 
the  directors  of  the  corporation,  including 
S.  and  G.,  a  proposal  was  received  from  C, 
on  behalf  of  himself  and  his  associates, 
whose  names  were  concealed,  to  construct 
the  road,  and  was  referred  to  the  president, 
S.,  who  made  the  contract  as  previously  ar- 
ranged by  the  association,  and  for  the  joint 
interest  of  its  members.  Further  to  con- 
ceal the  plot,  C.  transferred  the  contract  to 
G.  &  Co.,  under  whose  name  the  work  was 
done ;  but  the  association  in  fact  performed 
the  work,  paid  the  expenses,  and  divided 
the  profits.  With  a  majority  of  the  stock 
issued  under  the  contract,  a  majority  of  the 
directors  was  thenceforth  chosen  from  the 
association,  S.  continuing  president.  Held: 
(i)  that  the  contract  made  by  S.  with  C, 
in  the  name  of  the  corporation,  was  fraud- 
ulent and  void ;  (2)  that  the  officers  were 
accountable  to  the  corporation  for  the  abuse 
of  their  trust  and  the  profits  realized  under 
the  contract ;  (3)  that  all  persons  partici- 
pating in  the  fraudulent  transactions  with 
7  D.  R.  D.~2a 


knowledge  of  the  facts  were  equally  liable 
with  the  officers ;  (4)  that  the  stockholders 
were  the  real  parties  in  interest  to  maintain 
an  action  against  ilie  oflicersand  fraudulent 
participators,  and  the  corporation  a  proper 
party  defendant  with  them.  Ryan  v.  Leaven- 
worth, A.  6-  A^.  W.  R.  Co.,  21  Kan.  365.— 
Quoting  Wardell  v.  Union  Pac.  R.  Co.,  4 
Dill.  (U.  S.)  330.  — Followed  in  Vennerw. 
Atciiison,T.&  S.  F.  R.  Co.,  28  Fed.  Rep.  581. 

Complainants,  having  failed  to  comply 
with  the  conditions  and  terms  of  their  sub- 
scription to  the  capital  stock  of  a  railway 
company,  without  any  default  on  the  part  of 
the  corporation  or  its  officers,  have  not  such 
rights  or  interests  in  the  stock  as  to  entitle 
tliem  to  an  injunction  to  restrain  the  acts 
of  the  officers  on  the  grounds  of  conspiracy 
and  fraud.     Busey  v.  Hooper,  35  Md.  15. 

A  minority  of  the  stockholders  may  main- 
tain a  bill  in  equity  on  behalf  of  themselves 
and  the  other  stockholders,  for  conspiracy 
and  fraud  whereby  their  interests  have  been 
sacrificed,  against  the  corporation  and  its 
officers  and  others  who  participate  therein. 
By  unreasonable  delay,  however,  in  bringing 
their  bill,  they  will  forfeit  their  title  to 
equitable  relief.  Peabody  v.  Flint,  6  Allen 
(Mass.)  52.— Quoted  in  Heath  v.  Erie  R. 
Co..  8  Blaichf.  (U.  S.)  347- 

Where  directors  of  a  corporation  have  so 
mismanaged  its  affairs  as  to  be  fraudulent,  a 
bill  may  be  maintained  against  them  person- 
ally by  a  shareholder.  Watt's  Appeal,  78 
y'<i.  St,  370. 

100.  Actions  to  restrain  misap- 
propriation of  assets.*— Where  one  rail- 
road corporation  is  the  owner  of  a  large 
amount  of  stock  in  a  connecting  railroad, 
and  both  corporations  are  under  the  con- 
trol of  the  same  officers,  and  the  officers  of 
the  connecting  line  arc  guilty  of  a  misappli- 
cation of  the  corporate  funds  for  their  per- 
sonal benefit,  the  siocklioldcrs  of  the  former 
corporation,  or  a  part  of  tliem,  may  institute 
a  suit  to  compel  the  officers  to  account  for 
such  misapplication.  Ryan  v.  Leavenworth, 
A.  &•  N.  IV.  R.  Co.,  21  Kan.  365. 

And  where  the  stock  of  the  first  corpora- 
tion ill  the  connecting  road  has  been  fraud- 
ulently canceled  by  the  officers  of  the  two 
corporations,  and  a  like  amount  of  stock  in 
the  connecting  road  issued  without  consid- 
eration to  trustees  for  the  former  corpora- 


*  Misappropriation  by  directors  ;  intervention 
of  equity,  sec  note,  3  Am.  &  Etta.  R.  Cas.  176. 


338 


STOCKHOLDERS,  101-104. 


Ill 


i  !    ': 


tion,  and  such  corporation  is  the  equitable 
owner  of  the  same,  the  stoci<holders  of  said 
first  corporation,  or  a  part  of  them,  may 
maintain  a  suit  to  compel  the  officers  of  such 
connecting  corporation  to  restore  to  said 
corporation  the  funds  and  property  wrong- 
fully taken  by  them,  without  first  bringing 
an  action  to  compel  a  transfer  of  the  stock 
from  the  trustees  to  the  corporation  equi- 
tably owning  the  same,  if  both  of  said  cor- 
porations and  the  trustees  are  joined  as  dc- 
fendants,  and  the  latter  refuse  to  institute  a 
suit  to  protect  the  property  and  interests  of 
the  corporation,  /{jfan  v.  Leavenworth,  A. 
&*  A'.  W.  R.  Co.,  21  Kan.  365. 

Where  it  appears  that  the  president  of 
one  street-car  company  held  stock  in  an- 
other, in  which  plaintiffs  were  stockholders, 
in  trust  for  the  beneP'  of  the  company,  and 
that  the  bonds  had  been  sold,  but  their  pro- 
ceeds not  accounted  for,  and  that  such 
president  would  not  bring  an  action,  plain- 
tiffs, as  such  stockholders,  have  a  right  to 
sue.  Frothingham  v.  Broadway  &-  S.  A. 
R.  Co.,  9  Civ.  Pro.  (N.  V.)  304. 

In  such  case  it  was  objected  that  the  com- 
pany in  which  plaintiffs  held  stock  could 
not  lawfully  hold  stock  in  the  other  com- 
pany, but  it  appeared  that  the  transfer  of 
stock  was  a  gift.  Ne/d,  that  the  objection 
was  not  well  taken.  The  prohibition  of  the 
General  Railroad  Act  of  1850,  ch.  140,  §  8,  is 
against  a  railroad  company  using  any  of  its 
funds  in  the  purchase  of  any  stock  in 
its  own,  or  any  other  corporation  ;  but  even 
if  the  transfer  was  made  in  pursuance  of  a 
contract  which  had  been  performed  by 
plaintiffs'  company,  the  defendant  company 
could  not  plead  uitra  vires.  Frothingham 
V.  Broadway  6*  S.  A.  K.  Co.,  9  Civ.  Pro, 
(N.  Y.)  304. 

A  complaint  by  a  minority  stockholder 
showing  a  general  misappropriation  of  the 
funds  of  the  corporation  by  those  who  have 
obtained  control  of  its  management,  and 
that  such  managers  have  taken  money  from 
the  treasury  for  themselves,  for  money 
claimed  to  have  been  loaned  for  improve- 
ments which  were  not  made  for  several 
years  thereafter,  and  that  plaintif!  was  re- 
fused access  to  the  books,  or  any  informa- 
tion regarding  the  affairs  of  the  company, 
shows  such  a  misapplication  of  the  corporate 
funds  as  to  state  a  good  cause  ol  action. 
Sage  V.  Cuher,  24  IV.  Y.  Supfi.  514.  71  Hun 
42,  S4  A'-  y.  S.  A\  297  ,  affirmed  in  147  N. 
V.  241,41  A'.E.  /.V/'.  5'3- 


101.  Action  to  ei^oin  waste  of 
corporate  property.  —  Where  persons 
who  have  wasted  and  misappropriated  its 
funds  are  in  tlie  control  of  a  corporation,  a 
stockholder  may  sue  without  first  demand- 
ing that  the  corporation  sue.  Sage  v.  C«/- 
ver,  24  N.  Y.  Stipp.  514,  71  Hun  42,  54  N. 
Y.  S.  K.  297  ;  ajjirmed  in  147  A';  Y.  241,  41 
N.  E.  Kep.  513. 

102.  Action  to  restrain  acts  ultra 
vircM.— A  single  stockholder  may  maintain 
an  action  against  the  corporation  and  the 
directors  to  restrain  a  contemplated  trans- 
action which  is  ultra  vires,  although  all  of 
the  other  stockholders  favor  it ;  but  where 
the  transaction  is  one  involving  discretion, 
an  injunction  will  not  be  granted  unlesi^  a 
clear  case  is  made.  Du  Pont  v.  Northern 
Pac.  K.  Co.,  16  Am.  &-  Eng.  N,  Cas.  456,  18 
Fed.  Kep.  467,  21  Blatch/.(U.  S.)  534. 

Where  the  directors  of  a  railroad  com- 
pany, without  any  authority,  pass  a  resolu- 
tion to  assume  certain  debts  and  to  buy  a 
majority  of  the  stock  and  bonds  of  a  rival 
road,  subject  to  the  approval  of  the  stock- 
holders, the  proposed  purchase,  being  ultra 
vires,  cannot  be  ratified  by  the  stockholders, 
and  maybe  enjoined  by  a  single  stockholder. 
Elkins  V.  Camden  &*  A.  A'.  Co.,  9  Am.  &* 
Eng.  R.  Cas.  590,  36  A'.  /.  Eq.  5.— QUOTED 
IN  Ellernian  v.  Chicago  J.  R.  &  U.  S.  Co., 
49  N.  J.  Eq.  217. 

103.  Action  for  nnautliorizcd  con- 
solidation.—A  stockholder  in  a  railway 
company  which,  against  his  protest,  has 
been  consolidated  without  authority  of  law 
with  another  company,  by  the  action  of 
other  stockholders,  and  whose  equitable  in- 
terest has  been  wrongfully  appropriated  by 
the  consolidated  company,  cannot  maintain 
an  action  for  the  injury  against  the  directors 
of  the  company,  as  such  ;  nor  are  the  direct- 
ors responsible  to  the  corporation  for  a 
consolidation  effected  by  act  of  the  stock- 
holders. International  &*  G.  N.  R.  Co.  v. 
Bremond,  4  Am,  &*  Eng.  R,  Cas.  308,  53 
Tex.  96. 

4.  Remedy  by  Stockholder  Who  has  betH 
Deprived  of  His  Stock. 

104.  In  general.  —  Where  stock  in  a 
corporation  is  sold  under  a  void  execution 
the  owner  is  entitled  to  relief  in  equity 
against  the  corporation  to  restrain  a  transfer 
on  its  books  to  the  purchasers,  beligman 
V.  St.  Louis  6*  S.  F.  R.  Co.,  22  Fed.  Kep.  i-). 


STOCKHOLDERS,  105-108. 


33d 


A  railroad  corporation  may  abandon  its 
charter  and  dissolve  itself  except  so  far  as 
its  public  duties  as  conservators  of  a  high- 
way may  limit  this  power;  and  the  legis- 
lature may  release  it  from  this  limitation, 
and  allow  a  transfer  of  its  duties  to  other 
hands.  A  single  stockholder  has  no  right 
to  object  to  a  transfer  of  all  the  property  of 
the  corporation  to  another  company,  under 
the  authority  of  an  act  of  assembly.  But 
he  cannot  be  compelled  by  law  to  accept 
the  stock  of  the  other  company  in  payment 
for  the  shares  held  by  him,  and  a  court  of 
equity  will  restrain  the  corporation  and  its 
officers  from  entering  into  a  contract  to  that 
effect.  Lauinan  v.  Lebanon  Valley  R.  Co.,  30 
Pa.  St,  42.— Approved  in  Black  v.  Dela- 
ware &  R.  Canal  Co.,  24  N.  J.  Eq.  455. 

Where  all  the  stock  of  a  corporation  is 
void,  under  Wis.  Rev.  St.  §  1753,  because 
not  fully  paid  for,  none  of  the  stockholders 
can  make  any  claim  by  means  of  or  through 
it  to  the  aid  or  protection  of  a  court  of 
equity  as  against  the  others,  based  upon  the 
rights  of  a  stockholder.  Hinckley  v.  Pfister, 
83  Wis.  64.  53  N.  W.  Rep.  21. 

But  a  holder  of  such  void  stock  who  has 
pledged  it  as  security  for  a  debt  of  the  cor- 
poration, under  an  agreement  that  bonds 
pledged  by  the  corporation  for  the  same 
debt  shall  be  first  resorted  to,  may  sue  for  a 
conversion  of  his  stock  by  a  sale  in  viola- 
tion of  such  agreement.  But  where,  by  the 
terms  of  the  pledge,  the  right  to  vote  on  the 
stock  was  transferred  to  the  pledgee,  the 
pledgor  cannot  ask  a  court  of  equity  to  re- 
store to  him  the  stock  or  the  right  to  vote 
on  it,  until  the  purpose  for  which  it  was 
pledged  has  been  satisfied.  Hinckley  v. 
Pfister,  83  Wis.  64,  53  N.   W.  Rep.  21. 

105.  Suit  to  compel  isHue  to  plain- 
tiff of  due  proportion  of  new  stoclc. 
—Where  the  board  of  directors  of  a  cor- 
poration, in  issuing  new  stock  to  the  share- 
liolders  generally,  refused  to  issue  to  a 
particular  shareholder  his  due  proportion 
thereof,  he  may  compel  its  issue  to  him  by 
suit  in  equity  against  the  corporation  (at 
least  as  long  as  there  is  sufficient  stock 
remaining  undisposed  of),  though  he  might 
probably  have  maintained  an  action  at  law 
against  it  for  damages.  If  there  are  other 
shareholders  in  like  condition  with  the 
plaintiff  in  such  a  case,  their  rights  and  his 
are  several,  and  he  has  no  right  to  represent 
them.  Domman  v.  Wisconsin  &*  L.  S.  M. 
&*S.  Co.,  40  Wis.  418.— Distinguished  in 


Doud  V.  Wisconsin,  P.  &  S.  R.  Co.,  65  Wis. 
108. 

106.  Coinpelliugr  issue  of  stock  to 
cover  amount  paid  in.— The  purchasers 
of  a  railroad  at  an  execution  sale  issued  a 
circular  letter  offering  the  old  stockholders 
the  privilege  of  participating  in  the  pur- 
chase, upon  payment  of  ten  per  cent,  of 
their  paid-up  stock  within  a  specified  time. 
Subsequently  the  legislature  passed  a  statute 
releasing  the  road  from  a  certain  forfeiture, 
on  condition  that  the  original  stockholders 
were  restored  to  their  rights  as  existing  be- 
fore the  sale,  provided  they  pay  the  ten  per 
cent,  within  a  certain  time,  otherwise  to 
forfeit  all  rights  under  it.  A  stockholder 
paid  in  the  ten  per  cent,  on  the  stock  held 
by  him,  but  after  the  time  fixed  by  the  cir- 
cular and  by  the  statute ;  and  he  sued  to 
compel  the  issuance  of  stock  to  cover  the 
ten  per  cent,  paid  in.  Held,  that  he  was  not 
entitled  to  recover,  not  having  made  the 
payment  within  the  time  prescribed.  Van 
Alstyne  v.  Houston  &»  T.  C.  R.  Co.,  9  Am.  &* 
Eng.  R.  Cas.  447,  56  Tex.  373. 

107.  Suit  to  reach  stock  improp- 
erly apportioned  to  another.— A  sub- 
scriber to  a  joint-stock  corporation  who 
complains  of  an  inequitable  distribution  of 
the  stock,  and  who  \z  seeking  to  reach 
stock  which  has  been  improperly  assigned 
or  apportioned  to  others,  should  file  his 
bill  in  behalf  of  himself  and  of  all  other 
subscribers  standing  in  the  same  situation. 
Walker  v.  Devereaux,  4  Paige  {N.  V.)  229. 

The  remedy  of  a  stockholder  whose  stock 
has  been  illegally  and  wrongfully  canceled, 
new  stock  in  lieu  thereof  having  been  issued 
to  an  unauthorized  person,  is  against  the 
company,  whether  the  wrongful  issuance  of 
the  new  stock  was  the  result  of  negligence 
or  fraud.     Baker  v.  Wasson,  53  Tex.  150. 

If  the  new  stock  thus  wrongfully  issued 
was  procured  by  a  fraudulent  combination 
between  the  company  and  the  party  who 
received  it,  both  would  be  liable  in  damages 
to  the  rightful  owner.  The  party  receiving 
the  new  stock  would,  however,  not  be  liable 
if  he  had  neither  actual  nor  constructive 
notice  of  the  invalidity  of  his  own  title. 
Baker  v.  Wasson,  53  Tex.  1 50. 

108.  Suit  to  recover  proceeds  of 
stock  deposited  in  view  of  consoli- 
dation.— A  complaint  set  up  the  deposit 
of  certain  stock  and  bonds  with  defendant, 
a  trust  company,  in  pursuance  of  a  reorgani- 
zation plan  which  had  failed ;  that  an  action 


840 


STOCKHOLDERS,  100-111. 


II 


had  been  brought  in  which  the  trust  com- 
pany iiad  been  decreed  to  sell  certain  of  the 
stock  and  bonds  to  create  a  fund  for  the 
costs  of  the  action,  and  to  distribute  the 
surplus,  after  paying  such  costs,  to  the  actual 
holders  of  the  stock  and  bonds;  and  de- 
manded judgment  for  the  value  of  the  st<jck 
at  the  time  of  the  sale.  Held,  that  the  com- 
plaint was  demurrable  (i)  because  the  hold- 
ers of  the  bonds  were  not  joined  as  parlies, 
and  (2)  because  it  contained  no  allegation 
showing  the  amount  of  costs  payable  in  the 
suit,  or  what  was  chargeable  against  the  stock 
or  bonds  sought  to  be  recovered.  Carman  v. 
Farmers'  L.  <&*  7'.  Co.,  yoHitn  283,  53  N.  Y. 
S.  R.  824,  24  N.  y.  St4pp.  39. 

100.  Suit  fur  wroiiKi'iil  traiiHror  of 
plaiiitifTs  8lmrc8.  —  In  an  action  by  a 
stockholder  against  a  corporation  to  recover 
damages  fcjr  the  wrongful  transfer  of  plain- 
tifl's  shares  upon  a  power  of  attorney  which 
is  alleged  to  have  been  forged,  evidence  is 
admissible  to  show  that  the  desk  of  the 
alleged  forger  contained  a  genuine  signa- 
ture of  the  stockholder,  torn  from  his  ledger, 
and  that  in  the  same  desk  were  other  com- 
plete and  partly  completed  signatures,  imi- 
tating the  genuine  signature ;  and  such 
signatures  are  admissible.  Pennsylvania 
Co.  V.  Philadelphia,  G.  &*  N.  A\  Co.,  153 
Pa.  St.  160,  25  All.  Pep.  1043;  affirming  i 
Pa.  Dist.  301. 

5.  Remedy  of  Minority  against   Majority 
of  Stockholders, 

110.  How  far  tlic  doctrine  of  ma- 
jority  rule  will  be  carried.— It  is  a 

general  rule  that  the  acts  of  a  majority  of 
a  body  politic  bind  the  whole  corporation, 
when  confined  to  its  ordinary  transactions 
and  consistent  with  the  original  objects  of 
its  formation.  Mowrey  v.  Indianapolis  &* 
C.  R.  Co.,  4  Biss.  ( U.  5.)  78. 

In  corporations,  within  the  scope  of  the 
corporate  authority  the  majority  rules; 
beyond  this  they  have  no  right  to  go,  and 
one  may  insist  upon  stopping  at  the  limits. 
Leo  V.  Union  Pac.  R.  Co.,  16  Am.  &*  Eng. 
R.  Cas.  452,  19  Fed.  Rep.  283. 

Those  who  become  members  of  a  corpo- 
ration consent  to  the  rule  of  the  majority 
within  the  powers  of  the  corporation,  but 
not  beyond.  As  the  right  to  restrain  going 
beyond  such  powers  depends  upon  the  want 
of  consent,  if  the  consent  is  given  the  right 
ceases.    Therefore,  when  such  restraint  is 


sought,  due  diligence,  in  the  proper  direct 
tion,  to  prevent  what  is  sought  to  be  re- 
strained, must  be  shown  as  a  part  of  the 
title  to  relief.  Leo  v.  Union  Pac,  R.  Co.,  16 
Am.  &*  Eng.  R.  Cas.  452,  19  Fed.  Rep.  283. 

A  person  purchasing  the  slock  of  a  cor- 
poration thereby  assents  that  a  majority  of 
the  stockholders  shall  control  the  policy  ol 
tile  corporation,  and  so  long  as  the  acts  of 
the  majority  are  in  good  faith,  and  within 
the  powers  of  the  corporation,  and  are  not 
prohibited  by  law,  they  are  valid.  Hark- 
ness  V.  Manhattan  R.  Co.,  11  N.  V.  S.  R. 
732  ;  affitpniftg  22  J.  &•  .S'.  174  ;  affirmed  in 
\\l  N.  y.  627,  mem.,  20  N.  E.  Rep.  877. 

Minority  stockholders  of  a  corporation 
cannot  complain  of  an  issue  of  mortgage 
bonds  to  a  holder  of  the  majority  of  tlie 
stock,  when  such  issue  was  m.ide  by  the 
corporation  without  fraud,  for  an  adequate 
consideration,  and  with  great  benefit  to  the 
corporation,  though  the  issuance  was  pro- 
cured by  the  majority  stockholder  for  use 
to  raise  money  for  himself,  and  was  actually 
so  used.  Gloninger  v.  Pittsburgh  &•  C.  R. 
Co.,  46  Am.  &*Eng.  R.  Cas.  276,  139 /^a.  St. 
13,  21  Atl.  Rep.  211. 

111.  RiiflitH  of  minority  Htock- 
liolderN,  tfenerally."'  —  The  corporator 
has  a  perfect  right  to  stand  upon  his  con- 
tract with  the  corporation  in  opposition  to 
the  action  of  the  majority,  and  he  has  an 
equal  right  to  insist  upon  his  rights  under 
it  against  the  action  of  the  legislature. 
The  acceptance  of  an  amendatory  act  in  an 
irregular  manner  will  not  bind  the  stock- 
holders who  did  not  assent  to  it.  New 
Orleans,  J.  &*  G.  N.  R.  Co.  v.  Harris,  27 
Miss.  517. 

When  a  person  becomes  a  member  of  an 
incorporated  company  by  his  subscription 
to  the  stock,  he  agrees  to  be  bound  by  the 
terms  of  the  contract  as  defined  in  tho 
charter  of  incorporation  ;  he  agrees  to  be 
bound  by  the  acts  of  the  corporation  and 
its  officers,  performed  within  the  scope  of 
the  charter  powers ;  but  upon  no  principle 
can  it  be  held  that  he  impliedly  consents 
to  any  alteration  which  would  work  a  radi- 
cal change  in  the  structure  of  the  associa- 
tion, which  might  be  voted  or  accepted  by 
even  a  majority  of  the  whole  of  the  cor- 
porators. New  Orleans,  J.  &•  G.  N.  R.  Co. 
V.Harris,  27  Miss.  517.— Distinguished 

*  Monographic  note  on  the  rights  of  minority, 
stockholders,  see  25  Am.  &  Eng.  R.  Cas.  13. 


&2 


STOCKHOLDERS,  112-1  IS. 


841 


■3 
I 

■■  , 


i 


IN  Hawkins  v.  Mississippi  &  T.  R.  Co.,  35 
Miss.  688. 

A  majority  of  stoclcholders  will  not  be 
permitted  to  sanction  a  transa':tion  which 
is  tile  outcome  of  a  scheme  dishonest  or 
fraudulent  in  its  inception  and  development. 
The  minority  stockholders  have  rights 
which,  under  such  circumstances,  must  be 
recognized.  The  majority  may  legally  con- 
trol the  company's  business,  but  in  thus 
assuming  control  they  take  upon  them- 
selves the  correlative  duty  of  diligence  and 
good  faith.  They  cannot  manipulate  the 
company's  business  in  their  own  interests 
to  the  injury  of  the  corporation.  Meyer  v. 
Siaten  Island  H.  Co.,  7  N.  Y.  S.  R.  245,  43 
Hun  641.— Quoting  Central  Trust  Co.  v. 
New  York  City  &  N.  R.  Co.,  4  N.  Y.  S. 
R.  639. 

112.  Wlicii  one  stockholder  may 
sue  tlio  others  in  equity,  Kenernlly. 
— Where  an  incorporated  railroad  company 
would  be  the  proper  complainant  in  a  chan- 
cery suit,  but  refuses  or  elects  not  to  bring 
the  suit  when  required  by  a  stockholder  to 
do  so,  and  the  controversy  is  between  differ- 
ent classes  of  its  stockholders,  a  court  will 
entertain  a  bill  brought  by  a  stockholder 
to  settle  such  controversy.  Wheeling  v. 
Mayor,  etc.,  of  Baltimore,  I  Htighes  ( U.  S.)  90. 

Where  the  majority  of  the  stockholders 
of  a  corporation  are  illegally  pursuing,  in  the 
name  of  the  corporation,  a  course  which 
is  in  violation  of  the  rights  of  the  other 
stockholders,  and  which  can  only  be  re- 
strained by  a  court  of  equity,  an  action  to 
obtain  equitable  relief  may  be  maintained 
by  an  aggrieved  stockholder,  or  those  whose 
rights  are  thus  affected  may  join  as  plain- 
tiffs in  the  action.  Barr  v.  New  York,  L. 
E.  &>  IV  A'.  Co.,  23  Am.  &>  Eng.  K.  Cai. 
745,  96  iV.  Y.  444.— Quoting  New  York 
&  N.  H.  R.  Co.  V.  Schuyler,  17  N.  Y. 
592.— DiSTiNouiSHED  IN  Bevcridge  w.  New 
York  El.  R  Co.,  112  N.Y.  i,  19  N.  E.  Rep. 
489,  20  N.  Y.  S.  R.  962.  Followed  in 
Frothingham  v.  Broadway*  S.  A.  R,  Co., 9 
Civ.  Pro.  304. 

113. to  prevent  ille{|^al  action 

of  niitjorlty  where  directors  revise 
to  interfere.— A  minority  of  the  stock- 
holders of  a  corporation  may  maintain  a 
bill  in  equity  to  prevent  illegal  action  on 
the  part  of  the  majority,  after  they  have  re- 
quested the  proper  officers  to  interfere; 
and  where  the  illegal  action  complained  of 
or  threatened  is  on  the  part  of  a  majoritv 


of  the  directors  acting  in  the  interest  of 
another  corporation  of  which  they  are  also 
directors,  such  previous  request  by  the  mi- 
nority is  unnecessary,  since  it  would  be  un- 
availing.  Memphis  &•  C.  B.  Co.  v.  Woods, 
44  Am.  &»  Eng.  B.  Cas.  257,  88  Ala.  630,  7 
So.  Bep.  108. 

1 14. to  prevent  misapplication 

of  capital  and  profits  to  the  lessen- 
ini;  of  dividends.— A  minority  of  stock- 
holders have  a  remedy  in  chancery  against 
the  directors,  the  corporation,  and  all  others, 
whether  individuals  or  corporjitions,  assist- 
ing or  confederating  with  them,  to  prevent 
such  corporation  and  the  directors  thereof 
from  making  any  misapplication  of  their 
capital  or  profits  which  might  result  in 
lessening  the  dividends  of  stockholders,  or 
the  value  of  their  shares,  if  the  acts  intended 
to  be  done  create  what  in  law  is  denomi- 
nated a  breach  of  trust  or  duty.  March  v. 
Eastern  B.  Co.,  40  A'.  //.  548. 

Such  stockholders  have  a  remedy  against 
individuals,  in  whatever  capacity  they  may 
profess  to  act,  and  against  the  corporation 
in  which  they  are  members  and  all  others 
acting  in  concert  with  it  to  effect  and  ac- 
complish a  common  purpose  and  object, 
when  the  object  thus  to  be  accomplished 
is  an  imputed  violation  of  a  corporate  fran- 
chise, or  the  denial  of  a  right  growing  out 
of  it,  for  which  there  is  not  an  adequate 
remedy  at  law.  March  v.  Eastern  R.  Co., 
40  N.  H.  548.— Quoted  in  Heath  v.  Erie 
R.  Co.,  8  Blatchf.  (U.  S.)  347. 

115.  to  prevent  sale  and  in- 
vestment of  proceeds  in  another  en- 
terprise.—A  majority  of  the  stockholders 
cannot  sell  the  property  of  the  company 
against  the  wishes  of  the  minority,  and  thus 
defeat  the  objects  for  which  the  company 
was  formed.  Searcy  v.  Yarnell,  47  Ark. 
269,  I  S.  IV.  Bep.  319. 

A  majority  of  stockholders  in  a  prosper- 
ous corporation  cannot,  at  their  own  mere 
caprice,  sell  out  the  whole  source  of  their 
emoluments  and  invest  their  capital  in  other 
enterprises,  where  the  minority  desire  the 
prosecution  of  the  business  in  which  they 
had  engaged.  The  contract  is  that  their 
joint  funds  shall,  under  the  care  of  specified 
persons,  generally  called  directors,  be  em- 
ployed, and  that  for  certain  specified  pur- 
poses. Kean  v.  Johnson,  9  A^.  /.  Eq.  401. — 
Distinguishing  Ware  v.  Grand  Junction 
Water  Co.,  13  Cond.  Ch.  126;  Revere  v. 
Boston  Copper  Co.,   15  Pick.  (Mass.)  351. 


It 


342 


STOCKHOLDERS,  110-119. 


Ji 


I'  1 


::!■ 


r  V 


Under  the  Constitution,  a  majority  of  the 
members  of  a  corporation  cannot  be  author- 
ized  to  divest  the  interest  of  a  dissenting 
stockholder  by  a  trjinsfcr  of  the  whole  of 
its  property  to  another  company,  to  be  paid 
for  in  the  shares  of  such  other  company, 
without  first  giving  security  for  the  interest 
of  sue''  dissenting  stockholder.  Laumatt  v. 
Lebanon  Valley  A'.  Co.,  30  Pa.  SI.  42.— 
Critu  ISIU  IN  Mowrey  v.  Indianapolis  & 
C.  R.  Co..  4  Hiss.  (U.  S.)  78.  Revikweu  in 
Meyer  7).  Johnston,  64  Ala.  603 ;  State  v. 
Bailey,  16  Ind.  46. 

1 10.  fur  I'rniHliilniit  noqiiiHi- 

tion  by  one  corpnrntioii  of  tlio  prop- 
erty of  niiotlicr.— One  corporation  pur- 
chased a  controlling  interest  in  another,  and 
thereby  secured  the  election  of  a  board  of 
directors  from  its  own  employes  and  offi- 
cers, who  owned  no  stork  in  their  individ- 
ual right,  which  board  executed  a  pretended 
traffic  agreement  to  surrender  to  the  former 
complete  control  of  the  property  and  fran- 
chises of  the  latter.  Htlit,  that  the  minority 
stockholders  could  not  niaintain  a  bill  to 
annul  such  agreement  without  first  apply- 
ing to  the  board  of  directors.  F.arle  v. 
Seattle.  I..  S.  &*  E.  A\  Co..  56  Fed.  Rep.  909. 

Where  one  company  elects  and  controls 
a  board  of  directors  of  another  company, 
and  acquires  a  majority  of  its  stock  through 
such  directors,  without  adequate  considera- 
tion, it  is  a  fraud  upon  the  vendor  company 
and  its  stockholders  for  which  the  courts 
will  grant  relief  at  the  suit  of  a  stockholder. 
Pondir  v.  New  York,  L.  E.  <S-  M\  A'.  Co., 
55  JV.   y.  S.  A\  63,  72  //««  384. 

In  such  case,  after  the  corporation  refuses 
to  bring  an  action  minority  stockholders 
may  sue  either  to  set  aside  the  deed  trans- 
ferring the  property  or  to  co-.npel  an  ac- 
counting. Pondir  v.  New  York,  L.  E.  &* 
W.  N.  Co.,  55  N.  Y.  S.  A\  63,  72  Hun  384. 
—  Following  BarrT^.  New  York,  L.  E.  &W. 
R.  Co.,  125  N.  Y.  263,  34  N.  Y.  S.  R.  743. 

117.  for  frniidiilcnt  dissolu- 
tion and  repurcliaso  by  inf^ority.— 
Where  the  law  permits  it,  a  majority  of 
stockholders  have  a  right  to  dissolve  the 
corporation  and  to  dispose  of  its  property 
and  distribute  the  proceeds;  but  the  ma- 
jority have  not  the  right  to  sell  the  prop- 
erty to  themselves  at  their  own  valuation, 
and  at  less  than  its  real  value ;  and  where 
this  is  done  t4ie  minority  stockholders  may 
maintain  a  suit  against  the  majority  to  com- 
pel an  accounting,  without  making  the  cor- 


poration a  party.  Ervin  v.  Oregon  R,  &*  N. 
Co.,  20  Fed.  Kep.  577,  22  Blatchf.  (U.  S.)  187. 

And  one  or  more  of  the  minority  stock- 
holders may  maintain  such  an  action  with- 
out making  the  other  minority  stockholders 
parties.  Ervin  v.  Oregon  K.  &*  N,  Co.,  20 
Fed.  Rep.  577,  22  Ulatchf.  {(/.  S.)  187. 

In  such  case  the  minority  stockholders 
have  an  equitable  lien,  to  the  extent  of  the 
money  of  which  they  have  been  deprived  by 
the  sale,  on  the  corporate  property  in  the 
hands  of  the  purchasers,  or  of  a  new  com- 
pany which  they  have  organized.  Ervin  v. 
Ore^^on  R.  &*  N.  Co.,  23  Blatchf.  (£/.  S.) 
517,  27  Fed.  Kep.  625.— Quoting  Taylor  v. 
Chichester  &  M.  R.  Co.,  L.  R.  2  Ex.  356. 

6.  Ratification,  Acquiescence  or  Laches  as 
a  Bar. 

118.  Elfect  of  laches.— A  person  who 
continues  to  act  as  stockholder  for  some 
months  after  he  becomes  aware  of  the  cir- 
cumstance on  which  he  founds  a  bill  to 
have  his  contract  to  take  shares  declared 
void  on  the  ground  of  deception  and  mis- 
representation will  have  his  bill  dismissed. 
Sharpiey  v.  Louth  &*  E.  C.  R.  Co.,  L.  R.  2 
Ch.  D.  663.  46  L.J.  Ch.  D.  259,  35  Z,.  T.  71. 

A  stockholder's  bill  praying  that  a  mort- 
gage be  annulled  on  account  of  a  fraudulent 
consolidation  will  be  dismissed,  where  com- 
plainants have  been  guilty  of  laches.  Bell 
1.  Pennsylvania,  S.  &*  N.  E,  Ji.  Co. ,  (N.  J. 
Eg.)  \oAtl.  Rep.  741. 

Admitting  ttiat  the  legislature  is  cor  'i- 
tutionally  incompetent  to  authoriz' 
road  company  to  embark  in  new  enti 
entirely  beyond  the  scope  and  out  of 

the  objects  contemplated  by  its  charu  1  at 
the  time  the  stock  was  subscribed  for,  and 
thus  to  effect  a  fundamental  change  in 
its  charter,  without  the  consent  of  all  its 
stockholders,  it  is  quite  clear  that  before  a 
stockholder  can  be  entitled  to  a  remedy  by 
injunction  against  such  departure  from  the 
original  objects  of  the  incorporation,  he 
must  have  shown  himself  prompt  and  vigi- 
lant in  the  assertion  of  his  rights;  it  will 
not  do  for  him  to  wait  until  the  mischief 
of  which  he  complains  is  accomplished. 
Chapman  v.  Mad  River  &*  L.  E.  B.  Co.,  6 
Ohio  St.  119.— Quoted  in  Goodin  v.  Cin- 
cinnati &  W.  Canal  Co.,  tS  Ohio  St.  169. 

110.  What  delay  amounts  to 
laches.'*' — Where  officers  of  a  company 

*  Action  by  minority  stockholders  to  set  aside 
a  sale  under  deed  of  trust.    What  delay  will 


STOCKHOLDERS,  120. 


S48 


S.)  187. 
stock> 
I  with- 
oldcrs 
Co.,  20 


\ 


report  at  a  stockholders'  meeting  a  contract 
for  completing  the  road,  and  state  generally 
its  terms,  it  is  too  late  for  any  of  the  old 
stockholders,  after  the  contract  has  been 
executed,  to  complain  that  there  were  terms 
in  it  not  disclosed  to  them,  which,  if  they 
had  known,  they  would  not  have  consented 
to;  there  bci.ig  no  charge  of  concealment 
or  deception,  and  the  ignorance  on  their 
part  being  oi.ly  the  result  of  their  own  fail- 
ure to  <>xamine  the  contract,  which  was 
open  to  their  inspection.  HazUhurst  v. 
Savannah,  G.  C"  N.  A.  R.  Co.,  43  Ga.  13. 

A  stockholder  assailed  a  certain  contract 
made  by  his  company  for  the  purpose  of 
raising  money  to  complete  the  road,  and  for 
the  issuance  of  second  mortgage  bonds. 
Tlie  contract  and  the  mortgage  were  re- 
ported at  a  meeting  of  stockholders  shortly 
after  made,  but  they  offered  no  objection, 
or  aid  to  the  company,  but  permitted  the 
association  to  proceed  and  expend  money 
in  building  the  road.  Held,  that  stock- 
holders could  not  impeach  the  transaction 
after  the  lapse  of  five  years.  Kitchen  v.  St. 
Louis,  K.  C.  &*  N.  R.  Co.,  69  Mo.  224. 

In  such  case  a  second  mortgage  was  exe- 
cuted in  1868  and  reported  at  the  next  meet- 
ing of  stockholders,  and  a  foreclosure  sale 
was  made  in  1871,  and  suit  was  brought  in 
1873  attacking  the  transaction.  All  the 
time  plaintiff  was  a  stockholder,  was  present 
at  the  sale,  but  made  no  effort  to  stop  it, 
although  he  believed  the  mortgage  to  be 
illegal.  Subsequently  he  agreed  to  convert 
his  stock  into  stock  of  a  reorganized  com- 
pany, and  did  convert  a  part  of  it  into  cash. 
The  proceeds  of  the  second  mortgage  bonds 
were  used  in  completing  the  road,  and  other 
large  sums  of  money  expended  in  improving 
it,  and  phiintiff  bought  the  greater  part  of 
his  )ck  in  the  old  company  after  the  road 
was  advertised  for  sale,  at  a  small  per  cent, 
of  its  par  value.  Held,  that  this  showed 
such  delay,  acquiescence  and  ratification  as 
to  cut  off  his  right  to  redeem.  Kitchen  v. 
St  Louis,  K.  C.  &*  JV.  R.  Co.,  69  Mo.  224. 
— msTiNGUiSHED  IN  Jackson  V.  Ludeling, 
21  Wall.(U.  S.)  616;  Covington  &  L.  R.  Co. 
V.  Bowler,  9  Bush  (Ky.)  468.  Reviewed 
IN  Foster  v.  Mullanphy  Planing  Mill  Co., 
92  Mo.  79. 

By  an  unexplained  delay  of  nearly  three 
years  in  bringing  suit,  the  objection  of  the 


constitute  laches,  see  44  Am.  &  Eng.  R. 

273.  <i''S/r. 


Cas. 


dissenting  Stockholders  is  waived.  Boston, 
C.  &*  M.  R.  Co.  V.  Boston  S*  L.  R.  Co.,  51 
Am.  6-  Eng.  R.  Cas.  106,  65  A^.  H.  393,  aj 
Atl  Rep.  529. 

120.  Wliiit  delay  does  not  aniouut 
to  laclieH.— Where  one  stockholder  insti- 
tutes prompt  proceedings  to  set  aside  an 
alleged  illegal  agreement  entered  into  by 
the  directors  of  a  corporation  on  its  behalf, 
this  will  enure  to  the  benefit  of  all  the 
stockholders.  Other  stockholders  will  not 
therefore  be  guilty  of  laches  because  they 
fail  likewise  to  institute  such  proceedings, 
or  to  join  therein.  Metropolitan  El.  R.  Co. 
V.  Manhattan  El.  R.  Co.,  15  Am.  &*  Eng, 
R.  Cas.  I.  II  Daly  (N.  V.)  373,  14  Aid.  N. 
Cas.  103.  —  Quoting  Boardman  v.  Lake 
Shore  &  M.  S.  R.  Co.,  84  N.  Y.  157. 

Stockholders  are  not  guilty  of  laches  in 
not  acting  together  at  once  to  set  aside  an 
alleged  illegal  agreement  entered  into  by 
directors.  They  cannot  be  expected  to 
take  such  action  until  the  next  meeting  to 
which  they  are  legally  summoned  to  elect  a 
new  board  of  directors  to  assert  their  rights. 
In  such  case  the  new  board  of  directors  may 
institute  proper  proceedings  to  nullify  and 
set  aside  the  alleged  illegal  and  wrongful 
agreement  of  the  previous  board.'  Metro- 
politan El.  R.  Co.  V.  Manhattan  El.  R.  Co., 
15  Am.  &*  Eng.  R.  Cas.  1,11  Daly  (N.  V.) 
373,  14  AM.  N.  Cas.  103. 

Where  a  company  has  obtained  an  injunc- 
tion to  restrain  the  stockholders  of  a  cor- 
poration from  bringing  suit  to  set  aside  an 
agreement  entered  into  between  itself  and 
the  corporation,  it  cannot  in  a  subsequent 
suit  by  the  corporation  to  set  aside  such 
agreement  set  up  laches  on  the  part  of  the 
stockholders  in  moving  to  set  it  aside. 
Metropolitan  El.  R.  Co.  v.  Manhattan  El. 
R.  Co.,  15  Am.  &*  Eng.  R.  Cas.  1,  11  Daly 
('V.  y.)  373,  14  AM.  N.  Cas.  103. 

A  stockholder  in  a  railway  company, 
against  whose  protest  a  consolidation  was 
illegally  effected  by  the  company  with  an- 
other railway  company,  delayed  for  more 
than  two  years  the  institution  of  proceed- 
ings against  the  consolidated  company  for 
the  appropriation  of  his  equitable  interests. 
Held,  that  while  the  delay  might  preclude 
him  from  enjoying  the  further  prosecution 
of  the  consolidated  enterprise,  it  did  not 
prevent  him  from  following  up  his  equitable 
interest  in  the  hands  of  a  corporation, 
which,  by  appropriating  it  without  author- 
ity, became  equitably  bound  to  compensate 


844 


STOCKHOLDERS,  121-123. 


It 


I 


him  therefor.    International  &*  G.  N.  K. 
Co.  V.  Bremond,  4  Am.  &*  Eng.  R.  Cas.  308, 
53  7VJ-.96. 
121.   Acquiescence.  —  There  was  a 

contMct  between  a  railroad  company  and 
its  contractors  that  the  chief  engineer  of 
the  company  should  be  the  arbiter  to  settle, 
in  the  first  instance,  any  disputes  as  to  the 
work,  and  that  the  contractors  should  have 
the  proceeds  of  running  the  road  as  it  was 
completed,  mile  by  mile,  until  the  whole 
was  completed  and  accepted  by  the  compa- 
ny. The  chief  engineer  and  president  of 
the  company,  eleven  months  before  the  time 
fixed  for  the  completion,  and  when  the  road 
was  in  many  respects  not  completed,  ac- 
cepted the  road  as  finished,  with  a  view 
of  putting  the  whole  road  immediately  at 
work  for  the  company  and  completing  it 
with  the  proceeds,  and  his  acts  were  shortly 
after  reported  to  a  meeting  of  the  stock- 
liolders,  who  acquiesced  in  the  transactiun 
and  continued  for  nearly  a  year  to  acquiesce 
in  the  running  of  the  road  and  receipt  of  its 
earnings.  Held,  that  it  was  too  hite  for  a 
small  portion  of  the  stockholders  to  com- 
pliiin,  and  to  ask  that  an  account  be  taken 
of  the  actual  value  of  the  work  done  and 
that  the  builders  be  allowed  only  that  value, 
especially  if  there  was  no  offer  to  bring  that 
value  in  money  mto  court.  Hazlehurst  v. 
Savannah,  G.&*  N.  A.  R.  Co.,  43  Ga.  13. 

A  dissenting  stockholder  may  have  an 
injunction  to  restrain  the  corporation  from 
using  its  powers  or  funds  for  an  unauthor- 
ized purpose,  or  from  creating  a  monopoly. 
But  a  consenting  stockholder  cannot  have 
such  injunction,  nor  can  one  who  acqui- 
esces in  acts  ultra  vires,  or  permits  them 
to  go  unquestioned,  so  that  other  parties 
who  have  acted  on  the  faiiu  of  them  would 
suffer  great  injury  by  their  repudiation. 
Steivart  v.  Erie  &*  IV.  Transp.  Co.,  17 
Minn.  372  ((7/7.  348),  5  Am.  Ry.  Rep.  333.  8 
Am.  Ry.  Rep.  149. 

Where  a  stockholder  in  a  railroad  corpo- 
ration has  signed  a  contract  disposing  of 
its  assets,  knowing  its  contents,  and  voting 
at  meetings  of  the  company  to  carry  it  into 
effect,  he  cannot  afterwards  repudiate  it,  or 
question  the  bona  fides  of  the  transaction,  no . 
fraud  bemg  shown.  Clarke  v.  Omaha  S-  S. 
IV.  R.  Co.,  4  Ne6.  458,  19  Am.  Ry.  Rep.  423. 
—Quoting  Henry  v.  Vermillion  &  A.  R. 
Co.,  17  Ohio  191. 

Any  act  of  the  corporation  impairing  the 
rights  of  a  stockholder  without  his  consent, 


eithei  express  or  implied,  will  not  be  bind- 
ing on  him,  except  in  a  proceeding  author- 
izing the  takmg  of  private  property  for 
public  uses  upon  making  compensation. 
But  long  acquiescence  will  be  considered 
as  equivalent  to  a  consent,  and  whatever 
ground  of  equity  an  individual  .stockholder 
may  have  had,  a  counter  equity  may  arise 
from  the  lapse  of  time.  Gifford  v.  New 
Jersey  R.  &•  T.  Co.,  to  N.  J.  Eq.  171. 

122.  Ratiflcatioii.— Equity  will  refuse 
to  enjoin  a  railroad,  at  the  instance  of  its 
stockholders,  from  paying  the  interest  upon 
bonds  bearing  its  indorsement  where  there 
is  evidence  of  many  acts  on  their  part  tend- 
ing to  show  complainants'  knowledge  of 
and  consent  to  or  ratification  of  such  in- 
dorsement. Cozart  v.  Georgia  R.  &*  B. 
Co.,  54  Ga.  yjf). 

Two  competing  roads  entered  into  a  con- 
tract by  which  certain  tributory  territory 
was  preserved  to  each,  within  which  the 
other  would  not  extend  branch  lines.  After 
the  directors  of  one  of  the  companies  had 
passed  a  resolution  to  construct  a  certain 
branch  line  in  violation  of  the  contract,  a 
resolution  was  passed  at  a  stockholders' 
meeting  ratifying  all  acts  of  the  directors 
during  a  certain  time,  which  included  the 
time  of  th'^  above  resolution  ;  but  there  was 
no  evide-  •  .■  that  the  resolution  was  read, 
or  the  attention  of  the  stockholders  called 
thereto,  though  there  was  some  evidence 
tending  to  show  that  the  stockholders  were 
misled.  Held,  that  the  resolution  of  the 
directors  was  not  so  ratified  as  to  preclude 
stockholders  from  insisting  on  the  perform- 
ance of  the  contract.  h>es  v.  Smith,  55 
Hun  606,  mem.,  28  A'.  Y.  S.  R.  917.  8  A^.  K. 
Supp.  46,  affirming  3  A'.  Y.  Supp.  645. 

7.  Procedure  in  Suits  by  Stockholders. 

12.1.  Parties.*'— In  a  stockholder's  bill 
against  his  own  company  and  another  to 
compel  an  accounting,  the  stockholder's 
company  is  a  necessary  defendant;  but  the 
interests  of  the  stockholder  and  the  com- 
pany are  identical,  they  representing  one 
side  of  the  controversy  while  the  company 
against  whom  the  accounting  and  relief  are 
sought  represents  the  other.  Arapahoe 
County  Com'rs  v.  Kansas  Pac.  R.  Co.,  4  Dill. 
(U.S.)  277. 

*  Jnindrr  of  stockholders,  and  causes  of  action 
in  suits  against  directors  and  companies  for  crii« 
spiring  lo  injure,  see  note,  93  Am.  &  Eno.  Jl. 
Cas.  753. 


STOCKHOLDERS,  124,  120. 


845 


bind- 
ithor- 
for 
ition. 
dered 
ttever 
lolder 
arise 
New 


i 


Two  stockholders,  who  held  831  shares  out 
c  '  a  total  of  lo.ooo,  filed  a  bill  on  behalf  of 
themselves  and  all  others  similarly  situated 
which  remained  on  the  calendar  for  six 
years  without  any  other  stockholders  com- 
ing in  and  asserting  their  interests.  Held, 
that  after  such  lapse  of  time  tlie  suit  would 
not  be  continued  for  the  purpose  of  adding 
new  parties.  Samuel  v.  Holladay,  Woohu. 
(U.  5.)  400. 

The  state,  being  a  stockholder  in  a  rail- 
road company,  may  be  a  party  to  a  bill  filed 
by  other  interested  persons  against  a  city 
and  certain  other  railroads,  to  enjoin  the 
consummation  of  a  contract  by  which  a 
controlling  amount  of  the  stock  of  the  road 
in  which  the  state  is  interested  is  about  to 
pass  into  the  control  of  other  roads.  A 
citizen  of  the  state,  as  such,  is  not  a  proper 
party  to  a  bill  to  enjoin  a  railroad  company 
from  illegally  making  a  purchase  of  stock 
in  another  railroud  company,  but  if  there 
are  other  proper  parties  to  the  bill,  this 
objection  can  not  be  considered  a  good 
ground  of  general  demurrer.  Centra/  A*. 
Co.  V.  Collim,  40  Ga.  582. 

The  failure  to  make  the  corporation  a 
p:irty  is  not  u  mere  defect  of  parties,  to  be 
taken  advantage  of  by  special  demurrer, 
but  leaves  the  stockholder  without  a  cause 
of  action,  the  party  entitled  to  the  relief 
not  being  before  the  court.  If  the  plaintiff 
fails  to  make  the  corporation  a  party,  it  is 
not  proper  for  the  court  to  require  him  to 
do  so,  and  his  action  should  be  dismissed 
absolutely.    Shnivhan  v.  Zi.tn,  79  Ky.  300. 

124.  Intervention— New  imrtieM.— 
A  company  declared  an  extra  dividend, 
payable  in  certificates  of  indebtedness,  bear- 
ing intciest  and  convertible,  after  a  certain 
date,  into  stock.  Upon  a  bill  filed  by  a  city, 
as  a  stockholder,  against  the  company,  an 
injunction  was  granted  restraining  the  is- 
suing of  this  dividend.  To  this  bill  the 
company  filed  an  answer  and  moved  for 
a  dissolution  of  the  injunction,  but  pend- 
ing argument  directed  its  solicitor  to  ask 
leave  to  withdraw  the  answer  and  to  dis- 
miss the  motion,  which  was  done.  A  peti- 
tion was  then  filed  by  certain  other  stock- 
holders, alleging  that  their  rights  and 
interests  were  injuriously  affected  by  the 
continuance  of  the  injunction,  and  asking 
leave  to  be  made  defendants  and  to  move 
for  its  dissolution.  This  was  refused  and 
their  petition  dismissed,  and  on  .ippeal  the 
order  so  dismi-«sint;  their  petition  was  .if- 


firmed  by  a  divided  court.  Held,  that  be- 
fore final  decree  the  petitioners  ought  to 
be  heard  as  parties,  and  that  if  they  are  not, 
and  on  appeal,  after  final  decree,  are  shown 
to  be  prejudiced  because  of  the  refusal  so 
to  hear  them,  the  decree  will  be  held  to  be 
of  no  avail  as  against  them,  and  will  be 
reversed  or  the  cause  remanded,  under  Md. 
Act  of  1832,  ch.  302,  that  the  proper  parties 
may  be  made.  Gregg  v.  Mayor,  etc.,  of 
Baltimore,  14  Md.  479.         > 

125.  Bill. — Trust.  J  of  a  corporation 
held  property  for  fo'tr  months,  during 
which  time  it  was  advertised  for  sale.  A 
part  of  the  time  one  of  the  plaintiffs  was 
a  director  of  the  company,  and  both  of 
them  knew  that  the  trustees  had  taken  pos- 
session of  the  property  under  the  mort- 
gage, and  that  a  sale  was  pending,  but  they 
made  no  effort  to  pay  the  debt  for  which 
the  sale  was  made,  or  otherwise  to  prevent 
a  sale.  Held,  that  a  bill  filed  by  them,  as 
stockholders,  was  not  entitled  to  the  favor- 
able consideration  of  a  court  of  equity. 
Samuel  v.  Holladay,  Woohu.  ( U.  S.)  400. — 
Reviewing  Dodge  v.  Woolsey,  18  How. 
(U.  S.)  331. 

The  bill  of  a  stockholder  to  restrain  the 
corporation  from  employing  its  assets  in 
excess  of  its  corporate  powers  is  bad  on 
demurrer,  unless  it  is  specific  in  alleging 
grounds  which  show  good  cause  for  the  re- 
lief sought.  Leo  V.  Union  Pac.  R.  Co.,  16 
Am.  &»  Eng.  R.  Cas.  452,  19  Fed.  Rep.  283. 
— Following  Colman  v.  Eastern  Counties 
R.  Co.,  10  Beav.  1 ;  Solomons  v.  Laing,  12 
Bcav.  339;  Beman  v.  Rufford,  6  Eng.  L.  & 
Eq.  106;  Stevens  v.  Rutland  &  B.  R.  Co., 
29  Vt.  545. 

A  bill  originally  filed  in  a  state  court  by 
minority  stockholders,  but  removed  to  a 
federal  court,  will  not  be  held  insufficient 
because  it  does  not  allege  that  plaintiffs 
sought  in  vain  for  relief  through  the  trus- 
tees and  officers,  as  required  by  a  rule  of  the 
federal  courts,  as  such  rule  applies  only  to 
suits  originally  brought  in  the  federal  courts. 
Earle  v.  Seattle.  L.  S.  &»  E.  R.  Co.,  56  Fed. 
Rep.  909. 

A  complainant  cannot  have  any  relief 
against  a  railway  company,  based  on  allega- 
tions of  dereliction  in  duty  to  the  stock- 
holders. Rogers  L.  &*  M.  Works  v.  Erie 
R.  Co.,  20  A^.  y.  Eq.  379. 

A  bill  is  not  multifarious  which  is  filed 
by  a  stockholder  on  behalf  of  himself  and 
the  oiher  stockholders  of  a  dissolved  corpo- 


346 


STOCKHOLDERS,  126. 


■! 


1   ■.■■ 


ration  for  the  purpose  of  compelling  a  de- 
fendant having  in  liis  possession  property  of 
said  corporation  or  owing  debts  to  it  to  ac- 
count for  and  pay  over  the  same,  and  which 
also  asks  that  the  creditors  of  such  corpora- 
tion may  be  convened  and  its  assets  distrib- 
uted among  its  creditors  and  stockholders. 
Crumlish  v.  Shenandoah  Valley  R.  Co.,  28 
W.  Va.  623. 

Where  a  stockholder  seeks  to  restrain 
a  railway  company  from  doing  ultra  vi'res 
acts,  he  must  show  the  illegality  of  such 
acts  by  distinct  and  derinite  averments. 
Mills  V.  Northern  A',  of  Buenos  Ayres  Co.,  L. 
R.  5  Ch.  621.  23  L.  T.  719,  19  IV.  R.  171. 

120.  Coiiiplniiit.—  In  an  action  by  a 
stockholder  to  set  aside  a  sale  of  the  corpo- 
rate property  by  the  directors  upon  the 
ground  of  fraud,  where  the  resolution  au- 
thorizing the  sale  and  the  deed  m^de  in 
pursuance  thereof  recite  that  the  sale  was 
made  because  the  corporation  was  greatly 
indebted,  and  had  no  means  to  pay  its  debts, 
it  is  proper  that  the  complaint  should  nega- 
tive such  recitals  and  aver  an  ability  upon 
the  part  of  the  corporation  to  meet  the  in- 
debtedness, as  specifications  of  constitutent 
part?  of  the  fraud  charged,  and  if  these 
averments  are  denied  in  the  answer,  the  is- 
sues thus  raised  are  material,  and  evidence 
relevant  thereto  is  properly  admitted. 
Smith  v.  Dorn,  96  Cal.  73,  30  Pac,  Rep. 
1024. 

Where  it  is  alleged  that  a  majority  of  the 
directors  participated  and  assisted  in  the 
acts  complained  of  and  have  ever  since  con- 
trolled the  action  of  the  l)Oiird,  and  that  it 
would  therefore  be  useless  to  make  a  de- 
mand on  the  corporation  or  the  directors  to 
bring  the  action,  which  allegations  are  not 
denied,  and  the  answer  of  the  corporation 
shows  that  any  demand  upon  it  or  upon  its 
directors  would  have  been  useless,  no  de- 
mand is  necessary  to  be  alleged  or  shown. 
Smith  V.  Dorn,  96  Cal.  73,  30  Pac.  Rep. 
1024. 

Plaintiff  brought  his  action  against  his  cor- 
poration and  its  president,  alleging  that  he 
was  a  stockholder,  and  that  the  action  was 
brought  on  behalf  of  himself  and  of  such 
other  stockholders  as  were  willing  to  unite, 
etc.;  that  the  company  and  its  president  had 
misapplied  corporate  moneys,  refused  to  ac- 
count for  the  same,  withheld  dividends  due 
to  plaintiff,  and  kept  false  hooks  of  account ; 
and  the  relief  demanded  was  that  defendants 
be  compelled   to  account.     HeU,    on   de- 


murrer, that  the  complaint  stated  a  cause  of 
action  as  against  the  corporation,  although 
it  did  not  allege  that  it  had  refused  to  bring 
an  action  upon  being  requested  so  to  do. 
Brown  v.  Buffalo,  N.  Y.  &*  E.  R.  Co.,  27  Hun 
{N.  V.)  342. 

Plaintiffs  alleged  in  their  complaint  that 
they  were  stockholders  in  an  improvement 
company,  which  contracted  to  construct  a 
land-grant  railroad,  to  be  paid  for  in  part 
by  "  land-grant  bonds,"  which  would  enable 
the  holders  to  share  in  the  land ;  that  the 
lands  were  to  be  taken  at  their  appraised 
value,  but  that  certain  officers  of  the  im- 
provement company  had  appropriated  valu- 
able unappraised  lands,  leaving  to  complain- 
ants and  other  stockholders  only  inferior 
lands,  not  worth  the  amount  of  their  bonds. 
Held,  sufficient  facts  to  entitle  them  to  sue 
for  redress.  Meyers  v.  Scott,  2  N.  V.  Supp. 
753,  20  N.  y.  S.  R,  35,  50  /fun  603,  mem. 

In  such  case  the  complaint  alleged  that 
the  president  and  secretary  of  the  improve- 
ment company  had  confederated  with  two  of 
the  individual  defendants  named  to  secure 
to  themselves  the  first  of  said  bonds  in 
fraud  of  plaintiffs*  rights,  and  that  certain 
bonds  had  been  issued  to  said  individual 
defendants  and  others,  and  used  by  them  in 
obtaining  an  unfair  preference  in  the  distri- 
bution of  lands ;  but  there  was  nothing  to 
show  that  such  defendants  had  given  a  val- 
uable consideration  for  the  bonds.  Held, 
that  the  complaint  was  sufficient  to  compel 
an  accounting,  under  N.  Y.  Code  Civ.  Pro. 
§  447,  provi<ling  that  in  equitable  actions  all 
persons  may  be  brought  in  who  have  any 
claim  or  interest  in  the  subject-matter  of 
the  action.  Meyers  v.  Scott,  2  A^.  Y.  Supp. 
753,  20  A'.  Y,  S.  R.  35,  50  Hun  603,  mem. 

Where  a  stockholder  brings  an  action  for 
the  red  less  or  prevention  of  a  wrong  done 
or  threatened  tc  the  corporate  property,  the 
complaint  is  insufficient  if  it  contains  no  al- 
legation imputing  any  fraud  to  the  directors, 
nor  that  the  directors  have  done  or  threat- 
ened to  do  anything  ultra  vires,  nor  that 
the  directors  are  acting  in  theirown  interest 
in  a  manner  injurious  to  or  destructive  of 
the  rights  of  the  other  sharehoU'.ers,  and  no 
allegation  of  an  earnest  effort  on  the  part 
of  the  plaintiff  to  obtain  redress  within  the 
corporation  itself.  Such  a  complaint  does 
not  bring  the  case  within  any  recognized 
exception  to  the  general  rule  that  individ- 
ual stockholders  cannot  maintain  an  action 
for  the  redress  of  wrongs  to  the  cor|K)ration. 


i 


STOCKHOLDERS,  127,  128. 


847 


luseof 

m 

liough 

bring 

Lo  do. 

■■'  'ix 

7  Hun 

1 

t  that 
einent 

Latimer  v.  Richmond  &*  D.  R.  Co.,  54  Am. 
&•  Etig.  R.  Cas.  189,  39  So.  Car.  44,  17  S.  E, 
Rep.  258. 

The  terms  of  an  award  between  a  railroad 
company  and  plaintiff  were  that  the  com- 
pany should  issue  to  plaintiff  a  certain 
amount  of  stock  in  case  the  legislature,  at 
the  session  which  was  being  held  at  that 
time,  should  make  a  grant  of  certain  lands 
to  the  company.  In  an  action  for  the  value 
of  the  stock,  the  complaint  averred  that  at 
the  time  of  the  award  a  bill  was  pending  in 
the  legislature  creating  a  new  corporation, 
and  granting  to  it  the  lands  named  in  the 
award ;  that  the  old  company  was  then  en- 
deavoring to  procure  the  passage  of  said  bill, 
which  was  commonly  known  among  the 
members  as  a  bill  granting  said  lands  to  said 
last-named  company ;  that  it  was  the  pas> 
sage  of  said  bill  to  which  the  arbitrators  had 
reference  in  their  award  and  the  parties  in 
their  settlement ;  that  there  was  at  the  time 
no  bill  pending  to  grant  the  lands  directly 
to  the  old  company ;  that  said  company 
expected,  in  case  the  pending  bill  passed,  to 
receive  the  benefit  of  the  grant  by  ronsoli- 
dating  with  the  new  company ;  that  said  bill 
became  a  law,  and  the  corporations  after- 
wards consolidated,  and  thus  obtained  the 
benefit  of  the  grant ;  and  that  said  company 
neglected  to  issue  stock  to  plaintiff  as  agreed. 
Held,  on  demurrer,  that  the  complaint 
showed  a  good  cause  of  action  a^  against 
the  old  company.  Smith  v.  Chicago  &*  N. 
W.  R.  Co..  18  Wis.  17. 

127.  letting  forth  efforts  to  Heciiro 
action  by  directors.'*'  —Where  a  stock- 
holder files  a  bill  complaining  of  a  transfer 
of  stock  from  his  corporation  to  another 
corporation,  an  allegation  that  the  board  of 
directors  of  his  corporation  was  under  the 
control  of  the  other  corporation,  and  that  it 
would  have  been  useless  for  him  to  make  a 
demand  on  these  directors  to  institute  n 
suit  to  recover  the  stock,  but  that  he  would 
have  made  such  application  had  he  not 
known  that  they  would  refuse,  is  not  a  suffi- 
cient compliance  with  equity  rule  94,  pro- 
viding, among  other  things,  that  a  bill  by  a 
stockholder  touching  a  matter  wherein  the 
corporation  or  its  officers  have  the  right  to 
sue  must  "  set  forth  with  particularity  the 
effort  of  the  plaintiff  to  secure  such  action 
as  he  desires  on  the  part  of  the  managing 

*  Rule  <)4.  relating  to  practice  in  equity  in  fed- 
eral count,  see  nutc,  33  Am.  &  Enu.  R.  Cas.  53. 


directors  or  trustees,  and,  if  necessary,  of 
the  shareholders,  and  the  causes  of  his  fail- 
ure to  obtain  such  action."  Squair  v.  Look- 
out Mountain  Co.,  42  Fed.  Rep.  729. 

Where  a  stockholder  files  a  bill  for  the 
redress  of  a  grievance,  or  for  the  mainte- 
nance of  a  right  which  the  corporation  might 
properly  assert,  it  must  be  set  forth  with 
particularity  what  effort  the  complainant 
has  made  to  secure  action  on  the  part  of  the 
directors,  and  the  cause  of  his  failure.  So 
a  mere  averment  that  protests  were  made 
against  the  acts  complained  of,  but  where 
there  is  nothing  to  show  that  they  were  by 
or  on  behalf  of  complainant,  or  any  other 
stockholder,  is  not  sufficient  to  authorize  a 
preliminary  injunction.  Weidenfeld  v.  Al- 
legheny «S-  K.  R.  Co.,  47  Fed.  Rep.  11.— 
Following  Hawes  v.  Oakland,  104  U.  S. 
450 ;  Detroit  v.  Dean,  106  U.  S.  537,  1  Sup. 
Ct.  Rep.  560;  Dimpfell  v.  Ohio  &  M.  R. 
Co.,  no  U.  S.  209,  3  Sup.  Ct.  Rep.  573. 

Neither  will  a  preliminary  injunction  be 
granted  where  it  appears  that  the  corpora- 
tion has  brought  suit  in  a  state  court  against 
a  third  party  whose  acts  are  complained  of, 
where  the  matters  involved  may  properly  be 
determined,  and  where  the  pleadings  and 
proofs  make  the  result  of  the  issue  doubtful. 
Weidenfeld  v.  Allegheny  <S-  K.  R.  Co,,  47 
Fed.  Rep.  ii. 

The  rule  that  requires  a  stockholder  to 
apply  first  to  his  corporation  or  its  officers 
to  bring  a  suit  does  not  apply  where  the 
action  is  to  protect  the  rights  of  stock- 
holders themselves,  and  not  the  rights  of 
the  corporation,  which  have  been  violated 
by  the  officers.  So  an  allegation  in  a  com- 
plaint by  a  stockholder  that  the  directors 
have  confederated  with  certain  other  per- 
sons made  defendants  to  defraud  plaintiff 
and  other  stockholders  is  sufficient  reason 
for  not  first  applying  to  the  corporation  to 
bring  the  suit.  Meyers  v.  Scott,  2  N.  Y. 
Supp.  753,  20  A^.  Y.  S.  R.  35,  50  Hun  603, 
mem. 

128.  Plea  or  answer.— Stockholders 
filed  a  bill  against  the  directors,  alleging  a 
refusal  of  the  latter  to  take  legal  measures 
to  protect  their  rights,  and  against  a  party 
in  possession  of  the  road  of  the  company, 
and  the  lessee  of  it,  and  persons  claiming 
liens  on  it,  to  recover  possession  of  the  road 
for  said  company.  To  this  bill  a  plea  was 
filed  alleging  that  the  company  had  brought 
a  like  suit  in  a  court  of  the  state  and  had 
discontinued  it,  through  its  directors,  by 


348 


STOCKHOLDERS,  120,  130. 


i  . 


preconcert  with  plaintiffs,  that  this  suit 
might  be  brought  to  evade  the  proper  juris- 
diction of  the  state  court,  and  denying  any 
breach  of  trust  by  the  directors.  Held, 
that  tlie  plea  was  bad.  Dwight  v.  Central 
Vt.  R.  Co.,  20  Blatchf.  (U.  S.)  200,9  Fed, 
Rep.  785. 

Anotlier  plea  was  filed  to  such  bill,  alleg- 
ing that  plaintifis  did  not,  before  bringing 
the  bill,  in  good  faith  request  the  directors 
to  take  legal  measures  to  protect  their 
rights,  but  by  arrangement  between  plaintiffs 
and  the  directors  a  simulated  request  and 
refusal  were  made,  and  this  suit  was  brought 
by  the  company  in  the  name  of  plaintiffs, 
and  denying  that  there  had  been  any  such 
refusal  by  the  directors  as  amounted  to  a 
breach  of  trust.  Held,  that  the  plea  was 
bad.  Dwight  v.  Central  Vt.  R.  Co.,  20 
Blatchf.  {U.  S.)  200.  gFed.  Rep.  785, 

Still  another  plea  was  fil«'  :,  alleging  that 
security  holders  of  the  same  class  as  those 
defendants  had  brought  proceedings  in 
behalf  of  themselves,  and  all  other  like 
security  holders,  against  the  company,  in  a 
siate  court,  to  enforce  their  security  on  the 
road,  in  which  a  decision  favorable  to  the 
validity  of  their  lien  had  been  made,  and 
which  were  pending,  and  setting  forth  the 
proceedings.  Held,  that  the  plea  was  bad. 
Divight  V.  Central  Vt.  R.  Co.,  20  Blatchf. 
{V.  S.)  200,  9  Fed.  Rep.  785. 

In  such  case  another  plea  was  filed,  by 
the  party  in  possession  of  the  road,  alleging 
that  it  was  in  possession  as  a  receiver  of  a 
state  court  and  setting  forth  the  proceed- 
ings on  which  its  possession  took  place. 
Held,  that  the  plea  must  be  overruled,  and 
the  case  proceed  to  proofs.  Dwight  v. 
Central  Vt.  R.  Co.,  20  Blatchf .  {[/.  S.)  200, 
9  Fed.  R,'P.  785. 

Before  a  stockholder  or  creditor  of  a 
corporatiim  can  maintain  a  bill  for  an  in- 
jury to  the  corporate  rights,  he  must  show 
that  the  rights  of  the  corporation  have  been 
prejudiced,  and  that  the  proper  officers 
have  refused  to  sue.  So  a  plea  to  a  bill  by 
a  stockiiolder  denying  that  the  corporation 
has  refused  to  sue,  and  alleging  that  it  has 
commenced  suit,  in  good  faith,  touching 
the  same  matter,  which  is  still  pending,  is  a 
good  defense.  Newby  v.  Oregon  C.  R.  Co.,  i 
Sawy.  (U.S.)6y 

If  one  be  a  bona  fide  holder  of  stock  in  a 
railroad  company,  and  file  a  bill  to  enjoin 
the  company  from  making  a  purchase  not 
authorised  by  the  charter,  it  is  not  a  suffi- 


cient reply  to  the  bill  that  plaintiff  is  not 
in  good  faith  seeking  the  interests  of  the 
company,  but  is  acting  in  the  interests  of  a 
rival  road.  Each  stockholder  has  a  right 
to  stand  upon  his  contract,  as  provided  by 
the  charter.  Central  R.  Co,  v.  Collins,  40 
Ga.  $82. 

Plaintiff,  claiming  to  be  a  stockholder  in 
a  railway,  filed  a  bill  against  the  directors, 
alleging  that  they  held  large  sums  of  money 
in  trust  for  the  company.  Defendants  an- 
swered, denying  that  plaintiff  was  a  stock- 
holder and  averring  that  certain  shares  sub- 
scribed for  by  him  had  been  forfeited.  The 
case  was  submitted  on  the  preliminary  ques- 
tion as  to  plaintiff's  right  to  file  the  bill. 
Held,  the  question  being  attended  with 
doubt,  that  the  case  must  proceed  to  hear- 
ing, saving  the  benefit  of  the  objection  to 
defendants.  Light  v.  Woodstock  <S-  L.  E, 
R.  &*  H.  Co.,  7  Grant's  Ch.  (U.  C.)  172. 

120.  AniciHliiiciits— Liniitntion.— 
In  a  suit  by  certain  stockholders  against 
the  directors,  the  other  stockholders  and 
others  interested  in  the  litigation,  the  peti- 
tion charged  that  the  directors,  in  fraud  of 
their  trust,  had  consolidated  and  merged 
its  existence  in  another  competing  but  in- 
solvent corporation,  misusing  the  revenues 
of  the  corporation  and  parting  with  the 
possession  of  its  property,  endangering  its 
corporate  existence,  etc.  Prayer  for  a  re- 
ceiver and  a  recovery  in  behalf  of  plaintiffs, 
and  for  general  relief.  By  amendment  re- 
lief was  asked  in  the  name  of  the  corpora- 
tion. In  the  amendment  specific  acts  were 
given  in  addition  to  general  allegations  in 
the  original.  Held,  that,  as  all  the  parties 
were  before  the  court,  and  no  new  facts  al- 
leged by  amendment,  and  as  the  relief  re- 
quested was  substantially  the  same  in  the 
amendment,  such  amendment  could  not  be 
held  as  making  a  new  party  or  alleging  a 
new  cause  of  action  to  which  limitation 
could  be  pleaded.  Becker  v.  Gulf  City  St. 
R.  <S-  R.  E.  Co.,  80  Tex.  475,  15  S.  W.  Rep. 
1094.— Distinguishing  East  Line  &  R.  R. 
R.  Co.  V,  Culberson,  72  Tex.  375. 

130.  Evidence— Burden  of  proof. 
— A  stockholder  filed  a  bill  against  his  cor- 
poration and  its  directors  to  restrain  them 
from  paying  themselves  salaries  fixed  by  a 
resolution  passed  by  themselves,  and  to 
compel  them  to  refund  the  amounts  already 
received.  Held,  that  by  bringing  the  action 
plaintiff  took  upon  himself  the  burden  of 
showing  that  the  corporation  ought  to  have 


STOCK   KILLING— STOCK   YARDS,  1-4. 


349 


s  not 
>f  the 
s  of  a 

right 
ed  by 
ns,  40 


exercised  its  right  to  demand  the  same  re- 
lief. It  does  not  appear  simply  from  the 
fact  that  the  directors  voted  themselves  sal- 
aries that  the  corporation  lias  been  injured, 
or  that  the  directors  have  acted  dishonestly, 
and  the  burden  of  cstablisiiing  these  facts  is 
upon  plaintiff.  MacNaughton  v.  Osgood,  3 
N.  y.  S.  A'.  795 ;  reversed  on  another  point 
in  114  N.  y.  574.  24  N.  V.  S.  /i.  531,  21  A^. 
E.  Rep.  1044. 


STOCK  KILLING. 

Allowing  amendments  in   actions  for,  see 
Pleading,  156. 


STOCK  LAWS. 
Constitutionality  of,  see  Statutes,  26-28. 


STOCK  P£NS. 

Duty  of  carrier  to  provide,  see  Carriage  of 

Live  Stock,  53. 
Receiving  cattle  in,  see  Carriage  of  Live 

Stock,  16. 

See  also  Cattle  Pens. 


STOCK  TARDS. 
Exposure  of  cattle  in,  during  snowstorm,  see 

Carriage  of  Live  Stock,  40. 
When  deemed  a  nuisance,  see  Nuisance,  7. 

1.  Statutes.*  — The  mere  fact  that  a 
stock-yard  company  owns  and  operates 
railways  in  connection  with  its  yards  is  not, 
so  far  as  the  business  of  the  yard  is  con- 
cerned, within  the  Illinois  statute  forbid- 
ding discrimination  by  railways.  Willotigh- 
by  V.  Chicago  J.  R.  6-  U.  S.  Co.,  50  A^.  /. 
Eq.  656,  25  Atl.  Rep.  277. 

2.  Obli|;atiuii  to  receive  livestock. 
— A  stock-yard  company,  the  charter  of 
which  authorizes  it  to  make  contracts  for 
tlie  transportation  and  delivery  of  stock 
with  the  several  railtoad  companies  having 
a  terminus  in  the  county  in  which  its  yards 
are  located,  is  under  no  obligation  to  re- 
ceive stock  from  u  railroad  company  except 
in  so  /ar  as  it  binds  Itself  to  do  so  by  con- 
tract. Delaware.  L.  6-  IV.  R.  Co.  v.  Central 
S.  y.  &*  T.  Co.,  42  Am.  6-  Etig.  R.  Cas.  524, 
46  N./.  Eq.  280, 19^//.  Rep.  185  ;  affirming 
37  Am.  &*  Eng.  R.  Cas.  607,  45  N./.  Eq.  50, 
17  Atl.  Rep.  146. 

The  business  of  a  stock-yard  company, 
except    in    the  character  of  the  property 

*  Stock  yards  and  stock-yard  companies,  see 
note,  49  Am.  &  Eng.  R.  Cas.  i$6. 


which  is  the  subject  of  bailment,  is  similar 
to  the  business  of  warehousemen,  and  it 
cannot  be  compelled,  in  the  absence  of  a 
contract,  to  receive  stock  from  any  person 
or  corporation.  Delaware,  L.  &*  IV.  R. 
Co.  v.  Central  S.  K.  &^  T.  Co.,  42  Am.  &* 
Eng.  R.  Cas.  524,  46  A'.  /.  Eq.  280,  19  Atl. 
Rep.  185  ;  affirming  yi  Am.  &>  Eng.  R.  Cas. 
607,  45  A'.  /.  Eq.  50,  17  Atl.  Rep.  146. 

3.  Duty  of  conipaiiy  to  deliver 
under  contract.  —  A  party  keeping  a 
stock  yard  may  recover  damages  from  a 
railroad  for  a  breach  of  a  contract  to  send 
all  stock  coming  over  its  road  to  his  yards, 
except  such  as  may  be  ordered  otherwise  by 
shippers.  Terre  Haute  S- 1.  R.  Co.  v.  Stru- 
ble,  16  Am.  <S-  Eng.  R.  Cas.  597,  109  U.  S. 
381,  3  Sup.  CI.  Rep.  270. 

Where  complainants  have  maintained  a 
stock  yard  contiguous  to  defendant's  road 
for  twelve  years,  receiving  stock  over  the 
road  exclusively,  defendant  will  be  enjoined 
from  altogether  cutting  them  off,  and  refus« 
ing  to  deliver  stock  consigned  to  them,  in 
pursuance  of  a  contract  with  a  rival  stock- 
yard company.  Coe  v.  Louisville  &•  N.  R. 
Co ,  3  Fed.  Rep.  775.— APPLYING  Vincent  v. 
Chicugo&  A.  R.Co.,  49  III.  33.— FOLLOWED 
IN  Toledo,  A.  A.  &  N.  M.  R.  Co.  v.  Pennsyl- 
vania Co.,  53  Am.  &  Eng.  R.  Cas.  307,  54 
Fed.  Rep.  730;  Toledo.  A.  A.  &  N.  M.  R.  Co. 
V.  Pennsylvania  Co.,  53  Am.  &  Eng.  R.  Cas. 
293.  54  Fed.  Rep.  746. 

Where  a  railroad  company  assumes  to  re- 
ceive, take  care  of,  water,  feed  and  forward 
stock  as  a  part  of  its  undertaking  to 
transport  it,  it  is  at  liberty  to  select  such 
agencies  as  it  may  choose  to  employ  for  the 
purpose;  but  it  cannot  refuse  to  deliver 
stock  consigned  to  one  yard  and  deliver 
it  to  another,  where  both  yards  are  con- 
tiguous and  both  connected  by  suitable 
switches,  and  the  company  can  deliver  to 
one  as  easily  as  to  the  other.  Such  a  dis- 
crimination is  contrary  to  a  sound  public 
policy  and  an  injury  to  the  owner  of  the 
yard  discriminated  against,  and  he  may 
compel  delivery  by  injunction.  McCoy  v. 
Cincinnati,  I.,  St.  L.  &*  C.  R.  Co.,  13  Fed. 
Rtp.  3. 

4.  Liability  for  injuries  to  live 
stock  —  Evidence  —  Negligence.  — 
Plaintifl  went  to  the  office  of  a  stock-yard 
company  in  advance  of  the  arrival  of  horses 
which  he  was  shipping  by  rail,  to  leave  di- 
rections with  the  superintendent  about  the 
unloading  and  care  of  the  horses  upon  their 


850 


STOCK  YARDS,  6, 6.— STOPPAGE  IN  TRANSITU. 


la-'M 


arrival ;  but  was  told  that  the  superintend- 
ent had  gone  home.  He  then  sought  the 
head  of  the  horse  department  of  the  yards 
and  gave  him  directions,  and  was  told  that 
they  would  be  carried  out,  and  that  it  was 
not  necessiiry  for  pluintifl  to  wait  until  the 
horses  arrived.  The  horses  came  in  on  a 
stormy  night  and  were  considerably  in- 
jured by  not  being  properly  cared  for. 
Held,  (i)  tiiat  plaintiff  was  nut  guilty  of 
contributory  negligence  in  not  seeking  the 
superintendent  himself;  (2)  that  it  was  not 
error  on  the  trial  to  admit  as  tvidcncc  the 
conversation  had  with  the  man  that  lie  did 
see  about  taking  care  of  the  horses.  .SV. 
Louis  Nat.  Stock  Yards  v.  Tiblier,  39  ///. 
App.  422. 

In  an  action  to  recover  from  a  stock-yard 
company  damages  for  injury  to  live  stock, 
the  measure  of  damages  is  the  difference  in 
the  market  value  of  the  stock  when  re- 
ceived by  the  stock-yard  company  and 
when  delivered  to  the  consignee.  St,  Louis 
Nat.  Slock  Yards  v.  Tiblier,  39  ///.  App.  422. 

5.  Site— Rights  of  iuljacciit  owners 
— Nuisance.* — Where,  under  express  pow- 
er in  its  charter,  a  railroad  company  builds  a 
cattle  yard  near  a  station,  and  conducts  the 
same  in  a  careful  manner,  abutting  owners 
cannot  enjoin  such  yard  as  a  nuisance  and 
compel  the  choice  of  a  site  more  isolated 
and  less  convenient  to  the  company.  Lon- 
don, n.  &•  S.  C.  A'.  Co.  V.  Truman,  25  Am. 
&'  Eng.  A'.  Cas.  116,  11  A/>p.  Cas.  45; 
reversing  29  CA.  D.  89,  which  affirmed  25  Ch. 
D.  423.  —  Distinguishing  Metropolitan 
Asylum  Dist.  v.  Hill,  6  App.  Cas.  193; 
Vaughan  v.  TafI  Vale  R.  Co.,  5  H.  &  N.  679. 

6.  Construction  of  contract  be- 
tween owner  nnd  conipany.— Defend- 
ant company  entered  into  an  oral  contract 
to  construct  a  track  on  its  own  land  close  to 
plaintiff's  land,  and  was  to  run  its  stock 
trains  over  this  track,  and  sto[  and  deliver 
to  plaintiff,  upon  his  land,  at  cattle  pens 
thereon  erected,  all  the  live  stock  that  was 
to  be  transported  over  the  road  eastward, 
and  was  to  receive  and  load  it  there,  to 
the  end  that  plaintiff  might  enjoy  the  profits 
arising  from  keeping  and  feeding  the  stock, 
and  that  in  charge.  Held,  that  the  con- 
tract was  within  2  N.  Y.  Rev.  St.  134,  §  6, 
providing  that  "no  estate  or  interest  in 
lands,  other  than  leases  for  a  term  not  ex- 
ceeding one  year,  nor  any  trust,  or  power 

*  See  also  Nuisance,  7« 


over  or  concerning  lands,  or  in  an)  manner 
relating  thereto,"  shall  be  created,  unless  by 
operation  of  law,  or  in  writing.  Day  v. 
New  York  C.  A\  Co.,  31  Barb.  {N.  Y.)  548. 
—  Applying  Pitkin  v.  Long  Island  R.  Co., 
2  Barb.  Cii.  222. 

In  such  case  it  was  necessary  lu  construct 
a  platform  extending  from  the  track  on  the 
company's  land  some  distance  over  plain- 
tilT's  land,  to  be  used  in  loading  and  un- 
loading stock.  Held,  that  this  created  a 
negative  easement  in  the  property  of  the 
company,  that  is,  the  power  to  restrict  the 
conipany  in  the  exercise  of  its  natural  rights 
as  to  the  property,  and  to  compel  it  to  use 
ii  in  a  particular  way,  by  keeping  the  plat- 
form thereon,  and  stopping  its  trains  at  the 
place  for  plainiifl's  use  and  benefit ;  and, 
therefore,  created  an  incorporeal  heredita- 
ment which  can  only  pass  by  grant,  or  deed 
under  seal,  or  be  acquired  by  prescription. 
JMiy  v.  New  York  C.  A'.  Co.,  31  Barb.  (N. 

y.)  548. 


STOLEN   FBOPERTT. 

Duty  to  restore  to  owner,  see  Express  Com- 
panies, 4. 


STOP,  LOOK  AND  USTEN. 

Duty  of  deceased  to,  question  for  jury,  lee 

Death  by  Wrongful  Act,  2U5. 
persons  crossing  tracic  to,  see  Death 

BY  Wrongful  Act,  104,  105. 
traveler  to,  at  crossing,  sue  Crossings, 

Injuries  to   Persons,   etc.,  at,   231- 

307. 
Instructions  as  to  du'y   to,  sec  Death  by 

Wrongful  Act,  31  T. 
failure  of  trave  :er  to,  see  Crossings, 

Injuries  to  Person  .,  etc,  at,  300. 

STO?  OVER. 

By  passenger,  efiect  of,  on  liability  for  bag- 
gage,  see  Kaggace,  87. 

Rights  of  drovers  to  stop  over  at  intermedi- 
ate points,  see  Carriage  of  Live  Stock, 
123. 

passengers  exercising  privilege  of,  see 

Carriage  of  Passengers,  41. 

Stop-over  privileges  generally,  see  Tickets 
AND  Fakes,  40-51. 

Wrongful  expulsion  of  passenger  on  resum- 
ing journey,  see  Ejection  of  Passen- 
gers, 25. 


STOPPAGE  IN  TRANSITU. 

Does  not  defeat  lien  for  charges,  see  Carriaob 
of  Merchandise,  395. 


'R.! 


STORAGE— STREET   RAILWAYS. 


351 


inner 
:ssby 
y   V. 

548. 

Co., 


..: 


>* 


. 


Effect  of  transfer  of  bill  of  lading  to  defeat 
right  of,  see  Bills  of  Lading,  123. 

Nature  of  the  right,  and  how  enforced,  see 
Carriage  OF  Merchandise,  401-517. 


STORAGE. 

Feel  for,  see  Warehousemen,  6,  7. 

In  elevators,  regulation  of  charges  for,  see 

Elevators,  5. 
Of  empty  cars  on  highway,  see  Streets  and 

Highways,  411. 

—  goods  by  carrier,  see  Carriage  of  Mer- 

chandise, 300-374. 

—  —  —  initial   carrier,  see    Carriage    of 

Merchandise,  621. 

intermediate  carrier,  without  notice, 

liability  for,  see  Carriage  of  Merchan- 
dise, 631 -033. 

Right  of  carrier  to  charge  for,  see  Carriage 
of  Mbxchandise,  372. 


STOREHOUSES. 
Taking  land  for,  when  for  a  public  use,  see 

Eminent  Domain,  187. 
When  exempt   from  taxes,  see  Taxation, 

172. 


STORIHO. 
Of  goods,  no  waiver  to  lien  for  charges,  see 
Carriage  of  Merchandise,  394. 


STORMS. 
Unusual,  liability  ot  carrier  for  loss  by,  see 
Carriage  of  Merchandise,  300. 


STRANGERS. 

Acts  of.  as  a  defense  to  action  for  causing 

death,    see  Death   by  Wrongful  Aci, 

172. 
Assaults  upon  passengers  by,  see  Assault, 

10. 
Declarations  of,  as  evidence,  see  Evidence, 

220. 


STREAMS. 
Action  for  damages  for  diversion  of,  see  Emi- 
nent Domain,  902. 
Compelling  restoration  of,  see  Mandamus, 

14. 
Diversion  of,  aa  an  element  of  land  damages, 

see  Eminent  Domain,  600. 
In  condemnation  proceedings,  see  Emi- 
nent Domain,  177. 
See  also  Riparian  Rights  ;  Waters  and 
Watercourses,  0-23. 


STREET-CARS. 

Collisions  between,  sec  Collisions,  24-28. 

trains  and,  see  Collisions,  20-23. 

Contributory  negligence  of  child  crossing  in 
front  of,  or  getting  on  or  off,  see  Chil- 
dren, Injuries  to,  80,  80»  87*  OO, 
100,  110. 

Negligence  of  employ^  in  the  operation  of, 
see  EMPLOYis,  Injuriks  to,  305. 

STREET  RAILWAYS. 

Crossing  of,  by  steam  roads,  see  Crossing  of 
Railroads,  84-86. 

two  or  more,  see  Crossing  of  Rail- 
roads, 87. 

Leases  of,  with  power  to  extend,  see  Lf.ases, 

ETC.,  4. 

Liability  of  company  for  false  imprisonment, 

see  False  Imprisonment,  1 1. 
to  tolls  for  using  bridge,  see  Bridges, 

ETC.,    100,  101. 

Negligence  of,  as  regards  children,  see  Chil- 
dren, Injuries  to,  42-66. 

Parallel  lines  of.  see  Parallel  and  Compet- 
ing Lines,  6. 

Patents  for  chairs  and  rails  for,  see  Patents 
for  Inventions,  33. 

Regulating  construction  and  operation  of,  by 
mandamus,  see  Mandamus,  8. 

Rights  of,  where  electric  railway  is  con- 
structed in  street,  see  Electric  Rail- 
ways, 15. 

Running  street-cars  on  Sunday,  see  Sunday, 
10. 

When  subject  to  laborer's  lien,  see  Libns,  48* 
See  also  Cable  Railways. 

I.  BIOHT  TO  COH8TBU0T  AHD  OPBB* 

ATI 35a 

I.  Htj^At  to  Ust  Streets,  Gen- 

'rally 352 

3.   Under  Legislative  Grants,  ^i'^ 

3.  Under  Municipal  Grants .  358 

a.  In  General 358 

b.  Exclusive        Privi- 

leges   369 

4.  Under  Right  of  Eminent 

Domain 374 

n.  OOHSTBUGTIOH  OF  0HABTEB8. ...  377 
lU.  COHDITIOHBAHHEZEDTOOBAHTS.  382 

1 .  In  General 382 

2.  Consent  of  Local  Author- 

ities 384 

3.  Consent  of  Abutting  Own- 

trs 390 

4.  Time   within    Which    to 

Construct  Road 393 

IT.  00X8TBV0TIOH    AHD  BBPAIB    OF 

TBAOK  OB  STBEBT 394 


352 


STREET   RAILWAYS,  1,  SS. 


J 


1.  /n  General 394 

2.  Paving,     Repairing    and 

Restoring       Street       or 
Track 397 

a.  Paving  and  Repav- 

•ng 397 

b.  Repairs 405 

c.  Restoration   of 

Street 410 

3.  Liability     fot      Defective 

Comtruction    411 

▼.  BIGHTS  OP  ABUTTING  OWHEBS.     ,416 
▼I.  JOINT  USE  OF  TB&CXS ^2^ 

1.  Between  Company  and  the 

Public 427 

2.  Between  Rivid  Companies.  431 
▼II.  BEGULATION      BT     FUBLIO     AU- 

THOBITT 436 

1.  By  Statute 436 

2.  By  Ordinance 437 

?IU.  TAXATION :  ASSESSMENTS 444 

1.  In  General. 444 

2.  License  Taxes 446 

3.  Assessments  for  Local  Im- 

provements    450 

IZ.  F0WEB8,  DUTIES  AND  LIABILITIES 
AS  BESPECTS  THE  MANAGEMENT 
OP  THE  BO&O 454 

1.  Under    the     Contract    to 

Carry 454 

2.  Liability      for      Injuries 

Caused    by     Negligence, 
Generally 455 

3.  Injuries  to  Passengers ....  458 

a.  Amount    of    Care 

Company     Must 
Exercise 458 

b.  Relation  of  Passen- 

ger and  Carrier.,  462 

c.  Negligence  of  Car- 

rier    463 

d.  Contributory    Neg- 

*  ligence 480 

e.  When  Question  of 

Negligence    for 
Jury — Nonsuit..   502 
/.  Procedure 506 

4.  Injuries     to     Persons   or 

Property  in  Street 510 

a.  In  General 510 

b.  Negligence  of  Com- 

pany    S>S 

c.  Contributory  Neg- 

ligence of  Person 
in  Street 523 

5.  Injuries  to  Employ  is 532 

6.  Expulsion  of  Passengers . .  533 


I.  BIGHT  TO  CONSTBUOT  AND  OFIBATX.* 

I.  Right  to  Use  Streets,  Generally. 

1.  Nature  of  interest  acquired  in 

street.f— The  right  of  a  company  to  lay  its 
track  through  the  streets  of  a  city  and  to 
run  its  horse-cars  thereon  is  an  easement, 
or  incorporeal  hereditament ;  it  is  property 
of  the  company  which  must  come  through 
purchase  and  payment  therefor.  Appeal  of 
North  Beach  &*  M.  R.  Co.,  32  CaL  499. — 
Quoted  in  Northern  Pac.  R.  Co.  v.  Car- 
land,  5  Mont.  146. 

A  grant  made,  under  legislative  sanction, 
by  a  city  to  a  street-railway  company,  of  the 
right,  not  in  express  terms  exclusive,  to 
build  and  operate  a  railway  upon  one  or 
more  of  its  streets,  confers  upon  the  com- 
pany no  exclusive  privilege  as  to  such 
streets.  The  city,  notwithstanding  such 
grant,  retainsall  the  control  it  formerly  pos- 
sessed over  those  streets,  subject  only  to 
the  company's  exclusive  right,  as  against 
other  railway  companies,  to  use  that  por- 
tion covered  by  its  track.  Gulf  City  St.  R. 
Co.  V.  Galveston  City  R.  Co.,  65  Tex.  502. — 
Followed  in  Mayor,  etc.,  of  Houston  v. 
Houston  City  St.  R.  Co.,  50  Am.&  Eng.  R. 
Cas.  380,  83  Tex.  548. 

2.  Can  only  use  street  by  author- 
ity 4 — A  private  corporation,  in  the  absence 
of  either  legislative  or  municipal  permission, 
has  no  right  to  impose  a  permanent  struc- 
ture on  a  highway,  and  thereby  sequester  to 
its  exclusive  use  and  for  its  exclusive  profit 
any  portion  thereof.  Stamford  v.  Stamford 
Horse  R.  Co.,  36  Am.  &*  Eng.  R.  Cas.  140,  56 
Conn.  381,  I  L.  R.  A.  375,  15  Atl.  Rep.  749. 

A  street-car  company  was  chartered  by 
the  legislature  between  certain  designated 
termini  and  over  certain  designated  streets 
in  a  borough,  with  a  provision  that  it  might 
pass  "  over  and  across  any  highway  within 
any  of  the  points  of  commencing  or  termi- 
nation aforesaid."  Held,  that  the  company 
had  no  right  to  lay  its  tracks  through  any 
street  not  specified  ;  and  it  was  no  objection 
to  granting  an  injunction  against  laying  it 
on  other  streets  that  the  borough  would 

*  Right  to  construct  and  operate  street  rail- 
ways, see  note,  8  L.  R.  A.  4S3. 

t  Nature  of  interest  that  street-railway  com- 
panies hold  in  street,  see  notes,  25  Am.  St. 
Rep.  476 ;  3  L.  R.  A.  35S> 

X  Authority  to  street  railways  to  use  streets, 
see  note,  i  L.  R.  A.  493. 

Use  of  public  streets  for  horse  railroads,  see 
note,  4  L.  R.  A.  634. 


I 


STREET   RAII  WAYS,  3-7. 


353 


have  the  right  to  remove  it  by  force. 
Stamford  v.  Stamford  Hone  R,  Co.,  36  Am. 
6-  Etig.  R.  Cas.  140,  56  Conn.  381,  i  L.  R. 
A.37S,  xiAtl.  Rep.7\9. 

As  it  was  the  duty  of  the  borough  to  Iceep 
its  streets  in  proper  rep<iir,  and  it  was  liable 
for  failing  to  do  so,  it  was  the  proper  party 
to  apply  for  an  injunction  to  restrain  the 
layiiig  of  the  tracks  on  streets  not  author- 
ized. Stamford  v.  Stamford  Horse  R.  Co., 
36  Am.  &*  Eng.  R.  Cas.  140,  56  Conn.  381,  1 

L.  R.  A.  37S.  '  5  ^'/-  ■/*'<'A  749- 

3.  City  has  uo  power  to  tear  up 

track.— Although  a  street-railway  track 
constructed  without  authority  may  be  tech- 
nically a  nuisance,  yet  where  there  is  no 
general  law  of  the  city  declaring  such  rail- 
way a  nuisance  and  authorizing  its  abate- 
ment, the  city  is  nut  authorized,  under  a 
charter  provision  empowering  it  "to  cause 
any  nuisance  to  be  abated,"  to  tear  up  such 
track.  Spokane  St.  R.  Co.  v.  Spokane  Falls, 
6  Wash.  521,  33  Pac.  Rep.  1072. 

4.  Bight  of  rival  company  to  re- 
move tracic  or  eiOoiii  operation  of 
road.— The  use  of  a  street  by  a  street  rail- 
road is  only  one  mode  of  using  the  street, 
and  does  not  necessarily  exclude  the  public. 
So  one  street-car  company  cannot  enjoin 
another  company  from  running  cars  on  the 
same  street,  on  the  ground  that  doing  so 
violates  the  purpose  for  which  the  street 
was  opened  ;  nor  on  the  further  ground  that 
the  defendant  company  has  no  franchise  or 
license,  as  that  is  a  matter  that  can  only  be 
raised  on  behalf  of  the  public.  Market  St. 
R.  Co.  V.  Central R.  Co.,  51  Cal.  583,  12  Am. 
Ry.  Rep.  219. 

A  street-railroad  company  without  au- 
thority of  law  laid  down  a  track  upon  a  cer- 
tain street,  and  subsequently  another  com- 
pany obtained  a  legal  franchise  to  lay  down 
a  track  on  the  same  street.  Held,  that  the 
second  company  had  a  right  to  remove  the 
track  of  the  first  company.  Omnibus  R.  Co. 
V.  Baldwin,  i  Am.  &•  Eng.  R.  Cas.  316,  57 
Cal.  160. 

6.  Right  of  attorney-general  to 
enjoin  construction  or  operation. 
—The  attorney-general  has  the  right  to 
file  an  information  in  a  court  of  chancery 
to  enjoin  a  horse  and  dummy  railroad 
company  from  constructing  and  using  a 
track  in  and  along  a  public  street  of  a 
city,  where  it  has  not  legally  obtained  per- 
mission so  to  do  from  the  proper  municipal 
authorities.  Hunt  v.  Chicago  H.  &•  D.  R. 
7  D   R.  D.— 23 


Co.,  12X  III.  638,  13  AT.  r.  Rep.  176,  II  West. 

Rep.  45 ;  affirming  in  part  20  ///.  App.  282. 

0.  Right  to  lay  additional  track 

not  barred  by  statute  of  limitations. 

— Where  a  donor  of  a  street  attaches  a 
condition  to  it  that  a  railroad  company 
shall  have  a  right  to  lay  its  tracks  therein, 
and  such  company  lays  and  uses  only  one 
track  in  such  street,  it  does  not  lose  its 
right  to  lay  therein  an  additional  track, 
even  though  more  than  twenty  years  have 
elapsed  between  the  grant  and  the  assertion 
of  its  right  to  lay  the  additional  track. 
Noblesville  v.  Lake  Erie  &»  W.  R.  Co.,  130 
Ind.  I,  29  A^.  E.  Rep.  484. 

2.  Under  L^islative  Grants. 

7.  Bights  derived  from  grant,  ex- 
press or  implied.  —  The  right  to  con- 
struct and  operate  a  street  railway  in  a  city 
and  to  take  tolls  from  persons  traveling 
on  the  same  is  a  franchise  which  the  sover- 
eign authority  alone  can  grant.  Denver  &* 
S.  R.  Co.  v.  Denver  City  R.  Co.,  2  Colo.  673, 
20  Am.  Ry.  Rep.  339.— Quoting  Bank  of 
Aupusta  V.  Earle,  13  Pet.  (U.  S.)  595; 
People's  R.  Co.  v.  Memphis  R.  Co.,  10  Wall. 
(U.  S.)  50.  Reviewing  Davis  v.  Mayor, 
etc..  of  N.  Y.,  14  N.  Y.  506. 

A  grant  of  authority  to  lay  and  maintain 
street-railway  tracks  upon  the  public  streets 
of  cities  may  be  conferred  by  the  legis- 
lature, cither  in  express  words  or  by  neces- 
sary implication.  Eichels  v.  Evansville  St. 
R.  Co.,  5  Am.  &*  Eng.  R.  Cas.  274,  78  /nd. 
261,  41  Am.  Rep.  561. 

The  authority  of  a  railroad  company  to 
lay  tracks  in  a  public  highway  must  be 
given  by  express  enactment,  or,  if  it  rests 
upon  implication,  it  must  flow  necessarily 
out  of  the  law  from  which  it  is  derived. 
State  {Hoboken  L.  &»/.  Co.,  Pros.)  v.  Mayor, 
etc.,  of  Hoboken,  35  N.J.  L.  205.— Follow- 
ing Morris  &  E.  R.  Co.  v.  Mayor,  etc.,  of 
Newark,  10  N.  J.  Eq.  35a. 

That  which  a  company  is  authorized  by 
its  charter  to  do,  it  may  do ;  beyond  that 
all  its  acts  are  illegal.  The  power  must  be 
given  in  plain  wor<!s  or  by  necessat^  impli- 
cation ;  and  all  powers  not  given  in  a  direct 
and  unmistakable  manner  are  withheld. 
Com.  V.  Erie  <S-  A':  E.  R.  Co.,  27  Pa.  St.  339. 

A  railway  cannot  occupy  a  street  with  its 
track,  even  temporarily,  unless  such  right  is 
clearly  conferred  by  its  charter.  Attorney  ■ 
General M.  Lombards*  S.  St.  Pass.  R.  Co., 


864 


STREET   RAILWAYS,  8-10. 


pi 


xoPhila.  (/»«.)  352-— Reviewing  Barter  v. 
Com..  3  P.  &  W.  (Pa.)  259. 

The  councils  of  a  city  cannot  confer  such 
right ;  but  only  the  people  of  the  whole 
state  by  their  legislature.  Attorney-General 
V.  Lombard  fir's.  St.  Pass.  K.  Co.,  10  Phiht. 

(/''i.)3S2- 

8.  Power  of  legiHlatiire  to  ffruiit 
clinrtcrs.  —  A  legislative  charter  may 
confer  upon  a  railroad  company  the  right 
of  way  upon  any  street,  highway  or  turnpike 
in  the  state,  and  the  right  to  construct 
thereon  its  road.  Hepting  v.  New  Orleans 
Pac.  R.  Co.,  36  La.  Ann.  898. 

The  legislature  has  the  power  to  author- 
ize the  building  of  a  railroad  on  a  street  of 
a  city,  and  may  directly  exercise  this  power 
or  devolve  it  upon  the  local  or  municipal 
authorities.  Hill  v.  Chicago,  St.  L.  &*  N.  0. 
E.  Co.,  38  La.  Ann.  599. 

The  legislature  has  the  power  to  confer 
upon  a  company  the  right  to  construct  and 
use  a  horse  railway  on  a  street.  Hiss  v. 
Baltimore &•  H.  Pass.  K.  Co.,  4  Am.  <5-  Eftg. 
R.  Cas.  aoi,  52  Md.  242,  36  Am.  Rep.  371. 

The  legislature  has  the  constitutional 
power  to  take  possession  of  and  appropriate 
the  streets  of  an  incorporated  city  to  the 
use  of  a  railroad,  either  directly  or  through 
a  company  created  for  the  purpose.  Phila- 
delphia V.  Empire  Pass.  R.  Co.,  3  Bre^vs. 
(Pa.)  547.  Philadelphia  v.  Empire  Pass.  R. 
Co.,  7  Phila.  (Pa.)  321.— Following  Phila- 
delphia V.  Empire  Pass.  R.  Co.,  3  Brews. 
(Pa.)  547. 

9.  Power  of  legiMlatiiro  to  aiitlior- 
lEe  city  to  grant  fraiicliisc.  —  It  is 
within  the  power  of  the  legislature  to  dele- 
gate to  municipal  corporations  the  right  to 
license  or  permit  railroad  companies  to  lay 
railroad  tracks  in  the  streets  in  such 
manner  as  not  to  divert  them  from  their 
original  uses ;  but  a  difTercnce  exists  be- 
tween the  power  of  a  municipal  corporation 
to  grant  a  corporate  franchise  and  the 
right  to  permit  a  corporation  vested  with 
such  franchise  to  place  railroad  tracks  in 
the  public  streets.  If  the  municipal  body 
can  ever  grant  a  corporate  franchise,  such 
power  must  be  expressly  conferred  by  the 
legislature.  State  ex  rel,  v.  Jacksonville  St. 
R.  Co.,  50  Am.  iS-  Eng.  R.  Cas.  179,  29  Ela. 
590,  10  So.  Rep.  590. 

A  city  having  no  authority  under  its 
charter  to  pass  an  ordinance  granting  the 
use  of  its  streets  for  a  railway,  to  be  oper- 
ated by  horse  or  steam  power,  and  the  legis- 


lature being  prohibited  by  the  Constitution 
from  passing  local  or  special  laws  where  a 
general  law  can  be  made  applicable,  it  is 
not  within  the  power  of  the  legislature  to 
ratify  such  ordinance  by  a  special  act,  and 
thus  accomplish  indirectly  what  it  cannot 
do  directly,  as  the  power  to  ratify  a  con- 
tract results  from  the  power  originally  to 
authorize  the  contract.  Statue  v.  Dubuque, 
14  Am.  iS"  Eng,  R.  Cas.  107,  62  Iowa  303,  17 
N.  IV.  Rep.  518.— Following  Stange  v. 
Hill  &  W.  D.  St.  R.  Co.,  54  Iowa  669; 
Stanley  v.  Davenport,  54  Iowa  463. 

Section  2  of  the  Bill  of  Rights  does  not 
inhibit  the  legislature  from  granting  to 
municipal  corporations  the  power  to  permit 
railway  companies  to  construct  and  operate 
street  railways  therein.  Atchison  St.  R.  Co. 
V.  Missouri  Pac.  R.  Co.,  1 4  Am.  &*  Eng.  R, 
Cas.  439,  31  h'an.  660,  3  Pac.  Rep.  284. 
— Quoting  Brown  v.  Duplessis,  14  La. 
Ann.  854. 

The  city  of  Ogden,  Utah,  is  not  precluded 
from  granting,  under  general  laws  of  the 
territorial  legislature,  the  right  to  lay  down 
railway  trades  through  its  streets,  by  the 
Act  of  Congress  of  July  30,  1886,  providing 
that  territorial  legislatures  shall  not  pass 
local  or  special  laws  "  granting  to  any  cor- 
poration, association  or  individual  the  right 
to  lay  down  railroad  tracks,"  and  "  granting 
to  any  corporation,  association  or  Individ- 
ual  any  special  or  exclusive  privilege,  im- 
munity or  franchise."  Henderson  v.  Ogden 
City  R.  Co.,  46  Am.  A*  Ef^.  R.  Cas.  95,  7 
Utah  199,  26  Pac.  Rep.  286. 

10.  Power  of  city  to  acquire  road 
at  expiration  of  cliarter— Compen- 
sation.— A  city,  in  pursuance  of  an  agree- 
ment to  that  effect,  proceeded  to  assume 
ownership  of  a  street  railway  at  the  expira- 
tion of  tliirty  years  from  the  time  it  was 
first  put  in  operation,  and  to  fix  by  arbitra- 
tion the  amount  to  be  paid  therelor.  In 
making  their  award  the  arbitrators  refused 
to  allow  anything  for  the  value  of  any  fran- 
chise extending  beyond  thirty  years.  Held, 
that  the  franchise  was  not  limited  to  thirty 
years  only,  because  there  was  no  obligation 
on  the  part  of  the  city  to  assume  the  owner- 
ship of  the  railway  at  the  expiration  of  that 
term ;  but,  however,  this  privilege  or  fran- 
chise could  not  be  construed  to  be  "  prop- 
erty," the  value  of  which  was  intended  to 
be  taken  into  account  by  the  arbitrators 
when  the  city  assumed  the  ownership  of  the 
railway.     No  provision  was  made  for  its 


STREET   RAILWAYS,  11,12. 


355 


im- 


i 


valuation,  either  as  to  the  basis  on  which  it 
was  to  be  ascertained,  or  otherwise,  indicat- 
ing that  it  was  not  contemplated  by  the  re- 
spective parties  that  the  city  should  in 
money  pay  to  the  company  for  that  which 
they,  with  the  sanction  and  authority  of  the 
legislature,  had  granted  for  a  term  which 
they  had  the  right  to  terminate  after  a  fixed 
period.  /«  r*  Toronto  St.  K.  Co.,  22  Ont. 
374 ;  affirmed  in  54  /////.  &*  Eng.  R.  Cas.  576, 
20  Ont.  App.  125.— DiSTiNOUlSHiNO  Queen 
V.  London  &  N.  W.  R.  Co.,  3  El.  &  Bl.  443- 
Quoting  Morgan  v.  Louisiana,  93  U.  S.  223. 

By  agreement  with  the  company  the  city 
had,  on  payment  by  the  former  of  a  fixed 
sum  per  mile,  constructed  certain  pavements 
which  the  company  would  otherwise  have 
been  bound  to  do,  and  for  these  pavements 
the  arbitrators  refused  to  allow  anything. 
Held,  that  the  arrangement  between  the 
company  and  the  city  as  to  the  pavements 
did  not  entitle  the  former  to  have  them 
treated  as  part  of  its  railway  property,  to  be 
valued  and  paid  for  by  the  city.  In  re 
Toronto  St.  A'.  Co.,  22  Ont.  374 ;  affirmed  in 
l\Am.  &•  Eng.  R.  Cas.  576, 20  Ont.  App.  125. 

A  company  was  authorized  by  a  city  by- 
law and  an  agreement  executed  in  pursuance 
thereof  to  construct  and  operate  a  street 
railway  fcjr  a  term  of  forty  years  from  Feb. 
9,  1865,  the  city  rescrvin<j;  the  right  at  the 
expiration  of  twenty  years  to  assume  owner- 
ship of  the  road  by  paying  its  value,  after  u 
notice  of  six  months  to  be  given  within  the 
twelve  months  immediately  preceding  the 
expiration  of  the  twenty  years.  Held,  that 
the  company  was  entitled  to  a  full  six 
months'  notice  prior  to  Feb.  9,  1885,  to  be 
given  within  the  twelve  months  preceding 
that  date.  Therefore  a  notice  given  in  No- 
vember, 1884,  that  the  city  would  take  pos- 
session in  six  months  thereafter,  was  not 
suflficient.  Quebec  St.  R.  Co.  v.  Quebec,  38 
Am.  &»  Eng.  R.  Cas.  41 2, 1 5  Can.  Sup.  Ct.  164. 

11.  Power  to  niitliorize  another 
coinpany  to  coniioct.— A  grant  of  a 
franchise  to  a  street-railway  company  is 
for  the  purpose  of  facilitating  and  not  of 
abridging  the  public  use  of  the  street ;  and 
the  granting  of  a  subsequent  franchise  to 
another  company  to  connect  with  the  track 
of  the  former  company,  and  use  the  same 
in  accordance  with  the  provisions  of  the 
statute,  is  not  a  taking  of  the  property  of 
the  former  company  for  a  higher  or  differ- 
ent purpose  than  that  to  which  it  had 
already  been  devoted.     Pacific  R,  Co,   v. 


Wade,  50  Am.  &»  Eng.  R.  Cas.  362,  91  Cai, 
449,  27  Pac.  Rep.  768. 

A  passenger-railroad  company,  to  whom, 
by  its  act  of  incorporation,  was  granted  the 
right  "  to  connect  with  any  passenger  rail- 
way now  constructed,  or  hereafter  to  be 
constructed,  so  as  to  give  them  a  complete 
route  from  Fairmount  to  the  Exchange," 
cannot,  under  that  right,  connect  with  an- 
other passenger  railway  which  was  not  made, 
nor  the  right  of  making  granted,  at  the  time 
the  claimant's  act  of  incorporation  was 
passed.  North  Branch  Pass.  R.  Co.  v.  City 
Pass.  R.  Co.,  38  Pa.  St.  361.— QuoiKU  IN 
People's  Pass.  R.  Co.  v.  Marshall  St.  R. 
Co.,  20  Phila.  203. 

1 2.  Power  under  New  York  Con- 
Htitiition  and  laws.— The  provision  of 
N.  Y.  Const,  art.  3,  §  18,  prohibiting  legis- 
lation authorizing  the  construction  or  opera- 
tion of  a  street  railroad,  except  in  tiic  cases 
specified,  is  prospective  in  its  operation, 
and  has  no  reference  to  or  efTcct  upon  |)re- 
viously  existing  laws.  People  v.  Brooklyn,  F. 
&•  C.  I.  R.  Co.,  9  Am.  &•  Eng.  R.  Cas.  454, 
89  N.  K.  75  ;  affirmitig  24  Hun  529,  mem. 

The  fact  that  the  Constitution,  art.  3,  { 
18,  prescribes  conditions  upon  which  street 
railroads  may  be  constructed  does  not  ex- 
clude the  legislature  from  imposing  condi- 
tions other  than  those  so  prescribed.  Ex- 
cept as  restrained  by  the  Constitution,  the 
legislative  power  is  untrammeled  and  su- 
preme, and  a  constitutional  provision  which 
withdraws  from  the  cognizance  of  the  legis- 
lature a  particular  subject,  or  which  qualifies 
or  regulates  the  exercise  of  the  legislative 
power  in  respect  to  a  particular  incident  of 
that  subject,  leaves  all  other  matters  and  in- 
cidents under  its  control.  In  re  Thirty- 
fourth  St.  R.  Co.,  102  A^  V.  343,  7  A'.  E. 
Rep.  172,  2  A^  V.  S.  R.  33;  reversing  37 
Hun  442,  2  How.  Pr.  N.  S.  369. 

The  provision  of  the  Street  Surface  Rail- 
way Act  of  1884,  ch.  252,  §  14,  imposing  as 
a  condition  to  the  construction,  extension 
or  operation  of  a  street  railroad  in  a  street 
or  highway  in  which  another  street  railway 
has  been  lawfully  constructed  that  the  con- 
sent of  the  company  owning  and  maintain- 
ing such  other  road  shall  be  obtained,  is 
not  a  delegation  of  legislative  power  to  the 
company  whose  consent  is  required,  and  is 
constitutional  and  valid.  In  re  Thirty- 
fourth  St.  R.  Co.,  102  A'.  Y.  343,  7  A'.  E. 
Pep.  172,  2  A':  Y.  S.  R.  33 ;  reversing  37 
Hun  442,  2  How.  Pr.  N.  S.  369. 


350 


STREET   RAILWAYS,  18. 


It 


I 


hi-:- 


The  General  Railroad  Act  of  1850,  ch. 
140,  has  no  application  to  .street  railroads. 
Conceding  that  it  does  soa|)ply,  the  author- 
ity was  taken  away,  so  far  as  relates  to  street 
railroads  in  the  city  of  New  York,  by  the 
act  of  i860,  cli.  10.  /«  re  New  York  Dist. 
Ji.  Co.,  32  Am.  &•  Eng.  li.  Cas,  202,  107  A'. 
y.  42,  14  A'.  J-:.  Rep.  187.  II  N.  Y.  S.  /.'. 
753;  ajftrmt'ng  42  Hun  621,  4  A'.  Y.  S.  A'. 
739.— Following  New  York  Cable  Co.  v. 
Mayor,  cic,  of  N.  Y.,  104  N.  Y.  1. 

The  title  to  streets  in  the  city  of  New 
York  is  vested  in  the  city,  in  trust  for  the 
people  of  the  state;  and  under  the  Constitu- 
tion and  statutes,  the  state  possesses  author- 
ity to  convey  such  title  as  is  necessary  for 
the  purjiosc  to  corporations  desiring  to  ac- 
quire the  same  for  use  as  a  street  railroad. 
People  V.  O'llrien,  36  A»i.  &*  Eng.  R.  Cas. 
78.  Ill  A^.  Y.  I.  18  A^.  E.  Rep.  692.  19  A^.  Y. 
S.  R.  173;  reversing  10  A^  Y.  S.  R.  596,  45 
Hun  519.-  Ai'PLViNG  People  v.  Sturtevant, 
9  N.  Y.  263 ;  Davis  v.  Mayor,  etc,  of  N.  Y.,  14 
N.  Y.  506;  Milhau  v.  Sharp,  27  N.  Y.  61 1 ;  New 
York  V.  Second  Ave.  R.  Co.,  32  N.  Y.  261 ; 
Sixth  Ave.  R.  Co.  v.  Kerr,  72  N.  Y.  330; 
Langdon  v.  Mayor,  etc.,  of  N.  Y.,  93  N.  Y. 
129;  People  V.  Brooklyn,  F.  &  C.  I.  R.  Co., 
«9  N.  Y.  75.  Following  New  Orleans,  S. 
F.  &  L.  R.  Co.  V.  Delaniore,  114  U.  S.  501. 
Quoting  Brooklyn  C.  R.  Co.  v.  Brooklyn 
City  R.  Co.,  32  Barb.  364.  —  Quotkd  in 
Hcrzog  V.  New  York  El.  R.  Co.,  37  N.  Y.  S. 
R.  567,  14  N.  Y.  Supp.  296.  Reviewed  in 
Lake  Roland  El.  R.  Co.  v.  Mayor,  etc.,  of 
Baltimore,  54  Am.  &  Eng.  R.  Cas.  11,  77 
Md.  352,  26  Atl.  Rep.  510. 

New  York  Act  of  1886,  amending  the  act 
of  1868,  ch.  842,  entitled  "  An  act  to  provide 
for  the  transmission  of  letters,  packages 
and  merchandise  in  the  cities  of  New  York 
and  Brooklyn  ♦  ♦  ♦  by  means  of  pneu- 
matic tubes  to  be  constructed  beneath  the 
surface,"  is  in  violation  of  the  state  Consti- 
tution, art.  3,  §  18,  forbidding  the  passage  of 
private  or  local  bills  granting  to  any  corpo* 
ration  the  right  to  lay  dow.".  railroad  tracks, 
except  upon  conditions  specified,  or  granting 
to  a  private  corporation  any  exclusive  privi- 
lege, immunity  or  franchise.  Astor  v.  Arcade 
K.  Co.,  1 1 3  A^.  Y.  93,  20  A'.  E.  Rip.  594,  22  A^. 
Y.  S.  R.1,2  L.  R.  A.  789;  affirming  48  Hun 
562,  I  A^.  Y.  Supp.  174,  16  A'.  Y.  S.  R.  141. 
—Quoting  In  re  Gilbert  El.  R.  Co.,  70  N. 
Y.  361.— Distinguished  in  Re  Third  Ave. 
R.  Co., 43  Am.  &  Eng.  R.  Cas.  222.  121  N.  Y. 
536,  24  N.  E.  Rep.  951,  31  N.  Y.  S.  R.  693. 


1:1.  Under  PrniiHylvanin  stRtiites. 

— A  supplement  to  the  charter  of  a  passen- 
ger-railway company  provided  that  it  should 
have  the  exclusive  right  to  use  and  occupy 
for  railroad  purposes  the  streets  named 
in  the  charter.  Said  railway  company,  by 
virtue  of  its  charter,  used  and  occupied  a 
single  square  of  a  cross  street  so  as  t(j  make 
the  connection  between  the  trucks  on  the 
two  main  streets  upon  which  the  curs  ran. 
Held,  that  the  exclusive  grant  must  have  a 
reasonable  construction,  and  that  its  object 
was  to  protect  the  company  from  competi- 
tion, nothing  more.  Therefore,  there  was 
nothing  in  the  terms  of  the  supplement  to 
prevent  untuher  company  from  laying  down 
a  track  on  said  single  square  of  the  cross 
street  and  running  its  cars  thereon  in  an 
opposite  direction  to  those  of  the  company 
first  named,  the  former  com|>any  being  en- 
tilled  to  compensation.  J'/iiladeip/iia  &•  G. 
F.  Pass.  R.  Co.'s  Appeal,  20  Am.  &*  Eng.  R. 
Cas.  I,  102  Pa,  St.  123. 

Under  Pa.  Act  of  March  22,  1887,  §  i, 
which  provides  that  a  street-railway  com- 
pany organized  thereunder  may  lay  tracks 
upon  any  street  upon  which  "  a  passenger 
railway  now  is  or  may  hereafter  be  con- 
structed," such  a  company  may  enter  upon 
streets  and  lay  its  tracks  thereon,  although 
the  streets  have  not  before  been  occupied 
by  passenger  railways.  Rafferty  v.  Central 
Traction  Co.,  50  Am.  &*  Eng.  R.  Cas.  239, 
147  Pa.  St.  579,  23  Atl.  Rep.  884. 

The  right  of  plaintifT  company  under  the 
act  of  May  1,  1861,  empowering  it  to  con- 
struct and  extend  a  street  railway  within 
defendant  city,  and  to  occupy  the  streets 
for  such  purpose,  is  not  dependent  on  the 
will  of  the  municipal  authorities ;  and  the 
company  is  entitled  to  an  injunction  re- 
straining the  city  officials  from  interrupting 
its  work  in  extending  its  tracks.  Harris- 
burg  City  Pass.  R.  Co.  v.  Harrisburg,  149 
Pa.  St.  465,  24  Atl.  Rep.  56. 

A  statute  authorizing  a  street  railway 
company  to  extend  its  lines  to  portions  of 
certain  streets  lying  "  between  "  Montgom- 
ery street  and  Germantown  road  does  not 
allow  an  extension  along  the  Germantown 
road,  when  construed  in  accordance  with 
the  principle  that,  in  construing  grants  of 
powers  to  corporations,  whatever  is  not 
given  in  clear  and  express  terms,  or  by  nec- 
essary implication,  is  conclusively  consid- 
ered to  have  been  withheld.  Philadelphia 
v.  Citizens'  Pass.   R,  Co.,  56  Am.  6*  Eng. 


'h.  1,-S 


STREET   RAILWAYS,  14. 


Wf 


K.  Cas.  503,  151   Pa.  St.  128,  34  AH.  Hep. 
1099. 

Ill  tlie  case  of  u  legislative  grant  of  a 
franchise  to  a  private  corporation,  notiiing 
is  to  be  taken  by  implication  against  the 
public  except  what  necessarily  flows  from 
the  nature  and  terms  of  the  grant ;  and  the 
application  of  this  doctrine  will  prevent  a 
street-railway  company,  chartered  by  a 
special  act  In  1863,  from  occupying  with  its 
railway  a  street  the  use  of  which  was 
granted  to  another  company  by  the  munici- 
pality, under  a  general  statute,  twenty- 
eight  years  later,  where  the  grant  to  the 
latter  company  was  definite  as  to  location, 
uikI  that  to  the  former  company  was  very 
indefinite.  Junction  Pass.  R.  Co.  v.  H'ill- 
ianisport  Pass.  K.  Co.,  56  Atn.  &*  Eng.  K, 
Cas.  462,  154  Pa.  S/.  116,  26  ////.  /iV/.  295. 

Where  a  grant  by  special  act  to  a  street- 
railroad  company  of  the  right  to  use  a  cer- 
tain street  in  a  borough  is  indefinite,  the 
indefinite  location  can  become  fixed  and 
definite  only  so  far  as  the  company  has 
made  a  selection  of  streets  and  is  in  the 
actual  occupation  of  them  ;  and  a  delay  of 
twenty-eight  years,  until  the  village  has  be- 
come a  city,  until  science  has  substituted 
an  entirely  different  motive  power  and 
until  the  state  has  granted  to  another  com- 
pany the  unoccupied  street  sought  to  be 
taken,  in  clearly  expressed  terms,  is  unrea- 
sonable so  as  to  preclude  the  former  corpo- 
ration from  constructing  its  lines  upon  the 
said  street.  Junction  Pass.  A".  Co.  v.  Will- 
iixnisport  Pass.  A'.  Co.,  56  /7/;/.  &•  Kng.  K. 
Cas:  ^62,  1 54  A?.  St.  116,  26  Atl.  Rep.  295. 

If  a  charter  is  inoperative  because  it  de- 
scribes a  route  not  authorized  by  the  statute, 
under  which  the  corporation  is  formed,  that 
question  can  only  be  determined  in  a  pro- 
ceeding in  which  the  state  is  a  party. 
(Mitchell.  J.,  dissenting.)  Junction  Pass.  R. 
Co.  V.  Williamsport  Pass.  R,  Co.,  56  Am.  6- 
Jini,'.  R.  Cas.  462,  154  Pa.  St.  116,  26  Atl. 
Rep.  295. 

The  act  of  1849  was  not  intended  to  ap- 
ply  to  street  passenger  railways,  because 
they  were  not  then  in  existence  or  contem- 
plation ,  nor  was  the  General  Railroad  Act 
of  1868,  which  expressly  exempted  them 
from  its  operation.  Potts  v.  Quaker  City  El. 
R.  Co.,  2  Pa.  Dist.  200. 

The  act  of  April  4,  1868,  does  not  author- 
ize the  erection  of  a  railroad  upon  city 
streets.  Potts  v.  Quaker  City  El.  R.  Co.,  2 
Pa.  Dist.  200 


The  act  of  May  14,  1889,  "  for  the  incor- 
poration and  government  of  street-railway 
companies,"  plainly  intendc<l  to  compre- 
hend railways  upon  rural  highways  and 
other  than  suburban  streets.  Gettysburg 
Battlefield  Assoc,  v.  Gettysburg  Eltc.  R.  Co., 
2  Pa.  Dist.  659. 

14.  UiidnrTeiiiieHMeeCoiistttiitioii 
—Consolidation.— The  right  to  grant  a 
franchise  or  an  exclusive  privilege  to  in- 
dividuals is,  by  the  Constitution  of  the  state, 
vested  in  the  legislature,  and  cannot  be 
delegated,  and  is  to  be  exercised  by  the 
legislature  only  when  it  is  necessary  for  ihe 
public  good.  Memphis  City  /C.  Co.  v.  Mayor, 
etc.,  of  Memphis,  4  Coldw.  (Tenn.)  406. 

Certain  street-railway  corporations,  or- 
ganized before  the  adoption  of  the  Constitu- 
tion of  1870,  consolidated  after  the  adoption 
of  said  Constitution.  Nothing  in  the  Con- 
stitution or  subsequent  acts  of  the  legisla- 
ture indicated  any  intention  to  deprive  such 
consolidating  cn'T!j>anies  of  any  privileges 
or  franchises  exercised  under  their  old 
charters.  The  Constitution  required  all 
corporations  to  be  formed  in  pursuance  of 
general  laws,  whereas  the  consolidating 
companies  had  been  organized  under  special 
charters.  /feM,  that,  under  the  rule  that 
the  presumption  must  be  that  the  consoli- 
dated company  preserves  its  original  charter 
rights  and  burdens  intact,  unless  the  con- 
trary is  expressed,  the  corporations  did  not, 
by  the  act  of  consolidation,  subject  the  ir- 
revocable rights  granted  by  the  original 
charters  to  the  dominion  of  the  state;  and 
neither  the  state  nor  a  city  thereof  could 
take  away  from  the  consolidated  company 
the  right  to  use  a  certain  street,  under  a 
right  granted  by  the  original  charters  to 
operate  a  street  railway  "on  all  or  any  of 
the  streets  in  the  city."  Citizens'  St.  R.  Co. 
v.  Memphis,  56  Am.  &*  Eng.  R.  Cas.  385,  53 
Fed.  Rep.  71s. 

Although  a  city  has  the  right  to  regulate 
and  control  the  use  by  street-car  companies 
of  the  city  streets,  and  street-railway  fran- 
chises are  granted  by  the  legislature  sub- 
ject to  that  power,  such  regulation  cannot 
be  enlarged  into  a  power  of  prohibition  ; 
nor  can  the  city  usurp  the  state  power  of 
creating  franchises  or  taking  them  away, 
and  a  street-railway  company  duly  organ- 
ized can  be  deprived  of  its  rights  to  use  the 
streets  of  a  city  only  by  its  own  consent. 
(  it  (sens'  St.  K.  Co.  v.  Memphis,  56  Am.  &* 
!■",:.  R.  Cas.  385,  53  Fed.  Rep.  715. 


3fi8 


STREET   RAILWAYS,  15,  16. 


'I 

i\  \ 


It  will  not  be  understood  that  a  street- 
railway  company  has  abandoned  its  right  to 
use  a  certain  street  unless  its  intention  so 
to  do  has  been  unequivocally  expressed, 
rhcretore,  where  a  street-car  company 
which  had  constructed  railways  on  certain 
streets  contracted  with  the  city  to  substi- 
tute ciectDC  power  for  horse  jM)wer  within 
two  years,  it  i:ould  not  be  contended  that 
the  rrmpany  had  abandoned  its  right  to  use 
a  certain  street,  although  it  had  made  but 
a  limited  use  of  the  said  street  for  a  spur 
track  and  the  like,  and  new  tracks  had  not 
been  laid  upon  the  said  street  before  the 
company  had  obtained  from  the  city  the 
surrender  of  certain  bonds  which  it  had 
given  as  security  for  the  completion  of  tiic 
system,  in  accordance  with  the  contract ; 
and  the  railway  company  could,  at  any  time 
within  the  iwo  years,  make  use  of  t!ie  said 
street  for  the  accommodation  of  its  busi- 
ness. Citizens'  S/.  A'.  Co.  v.  Memphis,  56 
Am.  5-  FMg.  R.  Cas.  385,  53  Fed.  Rep.  715. 

15.  Uiidor  otiicir  ntatc  Ntutut<>N.-— 
III.  Rev.  St.  ch.  66,  entitled  "  Horse  and 
Dummy  Railroads,"  d.>es  not  provide  for 
the  incorporation  of  comp.mies  to  build  and 
operate  this  class  of  railroads.  It  simply 
extends  the  provisions  of  the  act  to  such 
companies  as  had  been  or  might  thereafter 
be  incorporated  under  general  laws.  The 
incorporation  of  such  companies  is  provided 
for  !:i  section  i  of  chapter  32,  entitled 
"  Corporations,"  and  it  is  doubtful  whether 
the  General  Railroad  Law  (ch.  114)  has  any 
application  to  such  roads.  U'ij^gins  Ferry 
Co.  V.  Fast  St.  Louis  Union  R.  Co.,  20  /lin. 
&•  F.ng.  R.  Cas  9,  107  ///.  450. 

Ind.  Art  of  June  4,  1861  (i  Rev.  St.  1876, 
P  754).  granting  the  right  to  .street-railway 
companies  to  locate  and  mainta'i  tracks 
upon  the  streets  of  cities,  applies  to  cities 
organized  under  special  charters.  Fichels 
V.  F.vansvilU  St.  R.  Co.,  5  Am.  &^  Ent^.  R. 
Cas.  274.  78  //;//.  261,  41  Am.  Rip.  561. 

There  being  no  general  law  of  the  state 
•  infc-'ing  the  right  and  prescribing  the 
terms  and  conditions  on  which  the  Balti- 
nmre  Union  Passenger  R.  Co.  was  to  con- 
struct and  operate  its  railway  on  certain 
streets  in  the  city  of  naltimorc.  the  act  of 
1882,  cli.  47,  r.itifying  Ordinance  No.  150, 
and  authorizing  said  company  to  ope  ate  its 
railways  on  such  streets  and  on  such  con- 
ditions as  the  city  may  prescribe,  is  not  in 
confl'ct  with  Md.  Conat.  art.  3.  ?  33,  which 
provides  that  "the  general  assembly  shall 


pass  no  special  law  for  any  case  for  which 
provision  has  been  made  by  rn  existing 
general  law."  Hodi^es  v.  lialtimort  Union 
Pass.  R.  Co.,  10  Am.  &*  Eng.  R.  Cas.  270, 
58  Md.  603. 

N.  J.  Act  of  April  9,  1866,  incorporating 
the  Paterson  &  Little  Falls  Horse  A  Steam 
railroad  company,  authorized  the  company 
to  construct  and  operate  a  street  railroad 
in  the  city  of  Paterson.  Paterson  R.  Co.  v. 
Grundy,  51  A^.  y.  Eg.  213.  26  At/.  Rep.  788. 

3.  Under  Municipal  Grants, 
a.  In  General. 

10.  Power  to  aiitlioHxo.  —  The  au- 
thority of  a  general  nature  to  regulate  and 
control  streets  usually  granted  to  municipal 
bodies  is  generally  deemed  sufficient  to 
clothe  them  with  the  right  to  grant  or  re- 
fuse, or  otherwise  to  regulate,  the  use  of 
streets  for  street  railways  operated  by  horse 
power.  State  ex  rel.  v.  Jackson7>ille  St.  R. 
Co.,  $oAm.  &*  Fng.  R.  Cas.  179,  29  I'la.  590, 
10  So.  Rep.  590.  Miihigan  City  v.  lioeckling, 
122  Ind.  39,  23  A'.  E.  Rep.  518.  Atkinson  v. 
Ashri'ille  St.  R.  Co..  113  A',  Car.  581,  18  S. 
F.  Rep.  254.  — Fni,i,r>wiNr.  Murlington  v. 
Burlington  St.  R.  Co.,  49  Iowa  144,  31  Am. 
Rep.  145:  Richmond,  T.  A  P.  R.  Co.  7'. 
Richmond,  96  U.  S.  $21.  — Mayor,  etc.,  of 
Houston  V.  Houston  City  St,  R.  Co.,  50  An.. 
A*  Eng.  R.  Cas.  380.  83  Tex.  548,  19  S.  IV. 
Rep.  127. 

The  .'juthority  may  be  lawfully  granted 
when  no  private  right  r)f  the  adjoining  lot 
owners  is  thereby  impaired.  Cincinnati &* 
S.  G.  A.  St.  R.  Co.  V.  CumminsviHe,  140/iio 
St.  523. 

Under  tiie  ^ent-ral  control  over  the  streets 
and  alleys  givei)  10  cities  r)f  the  second  class 
by  chapter  19,  Com  p.  Laws  1879.  a  city 
council  has  the  power  to  grant  to  a  street- 
railway  company  permission  to  construct 
and  operate  a  street  railway  on  the  streets 
of  the  city,  and  z  track  constructed  by  vir- 
tue of  such  permission  may  lawfully  occupy 
the  street.  Atchison  St.  R.  Co,  v.  Missouri 
Pac.  R.  Co.,  14/};;/.  5-  Eng.  R.  Cas.  439,  31 
Kan.  660,  3  Pac.  Rep.  284.— APl'I.lKD  IN 
Jackson  County  Horse  R.  Co.  v.  Interstate 
R.  T.  R.  Co.,  24  Fed.  Rep.  306.  Distin- 
c.uisHKi)  IN  Dilroit  V.  Detroit  City  R.  Co., 
56  Fed.  Rep.  867. 

The  legislature,  or  municipal  government, 
when  the  power  !s  delegated  to  it,  has  the 
right  to  set  apart  a  proper  portion  of  a  city 


STREET   RAILWAYS,  17,18. 


859 


which 

istiiig 

Union 

270. 


ipuny 
ilrnaci 
Co.  V. 

;88. 


ttreet,  for  a  street  railroad,  if  such  a  road 
will  accommodate  the  public  travel  for 
which  the  street  was  designed.  And  it 
makes  no  difference  that  the  road  was  con- 
structed and  opera'icd  by  an  incorporated 
company  for  its  own  gain.  The  fare  charged 
is,  as  in  the  case  of  a  turnpike  and  plank 
load  built  upon  a  public  highway  by  legis- 
lative authority,  only  another  way  of  kcjj- 
ing  up  and  maintaining  the  high'vay. 
Jersey  City  6-  B.  A\  Co.  v.  Jeney  City  &«•  H. 
H.  A'.  Co.,  20  N.  /.  F.q.  61  ;  reversed  in  21 
N.J.  Eq.  550.— Distinguished  in  Metro- 
politan R.  Co.  V.  Highland  St.  R.  Co.,  118 
Mass.  290. 

17.  Potvor  dous  not  cxtniul  to 
■team  motive  power.— The  construction 
of  a  street  railway  for  operaiion  by  steam 
power  is  an  illegal  use  of  the  street  which 
renders  the  owners  of  such  railway  liable  in 
damages  for  special  injury  caused  thereby 
to  adjoining  property.  (Adams,  C.I.,  dis- 
senting.) Stiifige  V.  /////  £«  \V.  D.  St  A'. 
CV»..  54  /(W<i  669,  7  A'.  If'.  A'i'/i.  1 1 5. -Fol- 
lowing Stanleys.  Davenport,  54  Iowa  463. 
—  Fui.l.owKK  IN  StangcT'.  Dubuque,  14  Am. 
&  Eng.  R.  Cas.  107,  62  Iowa  303. 

In  the  absence  of  express  statutory  au- 
thority, a  city  has  no  power  to  authorize  or 
permit  the  use  of  steam  motors  upon  its 
streets,  either  upon  ordinary  railroads  or 
street  railroads,  and  the  grant  of  such  au- 
thority or  |)ermission  constitutes  negligence 
which  will  render  the  city  liablu  for  dam- 
ages caused  thereby.  .StiinUy  v.  Diwenport, 
54  Iim;i  463.  2  A'.  W.  lief).  1064,  (>  N.  IV. 
Rep.  7o6.-ApI'LII';u  in  Eichcis  v.  Evans- 
villc  St.  R.  Co.,  5  Am.  &  En^j.  R.  Cas.  274, 
78  Ind.  261.41  Am.  Rep.  561.  Followku 
IN  Slr.iige  V.  Hill  &  \V.  D.  St.  R.  Co.,  54 
Iowa  669;  Stange  v.  Dubuque,  14  Am.  & 
Eng.  R.  Cas.  107,  62  Iowa  303. 

The  fact  that  the  action  of  the  city  coun- 
cil in  granting  such  right  was  without  au- 
thority would  not  protect  the  city  Irom  lia- 
bility, corporations  being  responsible  for 
the  acts  of  their  ofRcers  and  agents  done 
within  the  apparent  scope  ol  their  authority, 
and  the  streets  ol  a  city  being  under  the 
control  of  the  city  council.  Stanley  v. 
Davenport,  54  Iowa  463.  2  A'  VV.  Rep.  io6j, 
6  A'.   W.  Rep.  706. 

The  usual  rnwers  conferred  by  ics  charter 
on  a  municipal  corporation  over  its  .streets 
are  sufficient  to  authorize  it  to  permit  their 
use  lor  horse  railways  .  al:ier  as  to  railways 
o|)eratcd  by  steam      State  ex  re/,  v.  Corri- 


gan  Con.  St.  R.  Co.,  29  Am.  &»  Eng.  R.  Cas. 
591, 85  Afo.  263,  55  Am.  Rep.  361.— Quoting 
Jersey  City  &  B.  R.  Co.  v.  Jersey  City  &  H. 
Horse  R.  Co.,  20  N.  J.  Eq.  69. 

18.  Powcrof  city  of  New  Orleans. 
—The  city  has  the  power  to  sell  a  right  of 
way  in  the  streets  to  private  individuals  for 
a  specified  time,  with  the  privilege  of  laying 
rails  and  running  horse-cars  over  them,  ac- 
cording to  a  tariff  to  be  fixed  by  the  com- 
mon council ;  this  right  is  conferred  upon 
the  city  by  the  act  incorporating  it,  and 
ipon  all  incorporated  cities  or  towns  in  the 
state,  by  the  act  of  1855  relative  to  the 
organization  of  corporations  for  works  of 
public  improvement.  Brown  v.  Duplessis, 
14  La.  Ann.  854. 

The  franchise  or  exclusive  privilege  of 
running  horse-cars  through  the  streets  of 
the  city  is  within  the  meaning  of  La.  Act 
No.  30  of  1876,  §  10,  and  the  city  council  has 
the  right  to  appropriate  the  amount  realized 
by  sale  thereof  to  the  redemption  of  the 
bonded  debt,  as  directeJ  by  said  section. 
State  ex  rel.  v.  Mayor,  etc.,  of  New  Orleans, 
32  La.  Ann.  268. 

Under  the  statutes  which  make  it  the  duty 
"  of  the  council  of  the  city  to  turn  over  to 
The  board  of  liquidation  all  the  property, 
real  and  person  al,  of  the  city,  to  be  disposed 
of  hy  the  board,  and  the  proceeds  applied 
tc  t,'  '  .~iiy  debt,  the  council  cannot  sell  or 
grar.t.  u  right  of  way  through  the  streets  to 
a  railroad  company,  except  for  a  considera- 
tion which  can  be  realized  and  turned  over 
to  the  board,  and  applied  to  the  city  debt. 
Board  of  Liquidation  v.  New  Orleans,  32  La. 
Ann.  915. 

The  power  of  granting  the  right  of  way 
or  franchise  is  inherent  in  the  city  itself,  and 
not  susceptible  of  transmission  to  the  board 
of  liquidation,  but  when  the  power  has  been 
exercised  by  the  city,  the  result  of  it,  the 
franchise,  then  becomes  property  in  the 
legal  sense  of  the  word,  and  the  price,  con- 
sideration or  proceeds  of  the  same  should, 
under  the  statutes,  be  transferred  to  the 
board  of  liquidation.  Board  of  Liquidation 
V.  Neiv  Orleans,  32  La.  Ann.  915. 

Under  the  ordinance  of  the  city  passed  in 
1881,  conferring  anew  on  defendant  com- 
pany the  power  of  laying  tracks  from  Basin 
to  Carondelet,  no  power  was  conferred  to 
use  steam  as  a  motive  power,  and  the  use 
of  steam  is  a  nuisance,  if  not  actual,  at  least 
constructive.  Tilton  v.  New  Orleans  Citjt 
R.  Co.,  3S  /'<!•  Ann.  1063. 


360 


STREET   RAILWAYS,  1». 


Where  the  city  grants  a  franchise  for  a 
street  railway  for  a  term  uf  twenty-one 
years,  tlie  grantee,  after  the  expiration  of 
the  term,  cannot  enjoin  tiie  city  from  ad- 
vertising and  selling  ilie  same  franchise,  on 
the  ground  tliat  the  city  has  failed  to  com- 
ply with  an  alleged  contract  to  take  and 
pay  for  the  railroad  rolling  stock,  equip- 
ments and  fixtures.  If  such  un  agreement 
existed,  it  could  not  operate  to  prolong  the 
franchise  or  to  restrain  the  city  from  exer- 
cising  its  sovereign  authority  over  the 
streets  for  the  benefit  of  the  public.  Canal 
&*  C.  St.  h\  Co.  V.  Nnu  Otitans,  30  Am.  &' 
Eng.  K.  Cas.  146,  39  La.  Ann.  709,  2  So. 
litp.  388. 

Where,  in  such  case,  the  city  only  pro- 
poses to  sell  a  franchise  or  right  of  way, 
and  not  the  property  ol  plaintilT  who  owns 
the  existing  track,  the  specifications  of  the 
sale  expressly  providing  that  the  purchaser 
shall  respect  plaintifl's  rights  and  settle 
for  them,  phiintl.1  may  compete  at  the  sale 
without  waiving  any  rights.  Canal  &*  C. 
St.  R.  Co.  V.  Nino  OtUans,  30  Am.  &*  Eng. 
Ji.  Cas.  146,  39  La.  Ann.  709,  2  So.  Hep.  388. 

When  the  city  grants  a  privilege  to  a 
corporation  to  construct  a  street  railway 
through  a  street,  the  neglect  of  the  cor- 
poration to  comply  with  its  obligation 
can  be  taken  advantage  of  only  by  the 
city.  New  Orleans,  C.  &*  L.  R.  Co.  v.  New 
Orleans.  44  La.  Ann.  748,  1 1  So.  Rep.  77. 

After  the  city  has  regularly  advertised  and 
sold  a  street-railroad  franchise,  in  pur<(U- 
ance  of  La.  Ait  Is'o.  13$  of  1888,  providing 
that  the  council  sli.ill  not  have  power  to 
"dispose  of  any  street-railroad  frant  hise, 
except  after  at  least  three  mcniths' pubiira- 
tion  of  the  terms  and  specifications  of  said 
franchise,"  and  then  to  the  highest  bidder 
at  public  auctum,  the  coiiixil  cannot,  with- 
out another  advertiscmcni  and  sale,  change 
the  route  so  as  to  •  oibrace  quite  a  number 
of  blocks  not  mcluded  in  the  franchise  as 
advertised  and  sidd.  Buiiner  v.  Hart,  52 
Fed.  Rep.  835;  affirmed  in  56  Am.  &»  Eng. 
R.  Cas.  430,  54  Fed.  Rep.  925.  2  U.  S.  App. 
488,  5  C.  C.  A.  I. 

The  provision  in  the  above  statute  re- 
quiring such  franchises  to  be  sold  to  the 
highest  bidder  mi;ans  th'^  highest  bidder 
for  money,  and  a  sale  to  the  highest  bidder 
"  in  square  yards  of  gravel  pavement "  is  in- 
valid. Rucknet  v.  Hart,  52  Fed.  Rep.  835 ; 
affirmed  in  56  Am.  &>  Eng.  R,  Cas.  430,  54 
ted.  Rep.  925,  2  U.  S.  App,  488.  5  C".  C.  A.  1. 


19.  Power  of  city  of  New  York.— 

The  city  is  not,  by  virtue  of  its  general 
power  over  its  streets,  authorized  to  grant 
the  right  to  construct  and  maintain,  for  a 
term  of  years,  an  ordinary  street  railway; 
and  a  resolution  of  the  common  council 
granting  such  right  is  void.  Davis  v. 
Mayor,  etc.,  0/  N.  Y.,  \\  N.  Y.  506;  re- 
versing 3  Duer  119. — yuoTiNG  Beekman 
V.  Saratoga  &  S.  R.  Co.,  3  Paige  (N.  Y.)  75. 
— Apflied  in  People  v.  O'Brien,  36  Am.  & 
Eng.  R.  Cas.  78.  11 1  N.  Y.  i,  18  N.  E.  Rep. 
692,  19  N.  Y.  S.  R.  173.  Distinguished  in 
People  V.  Kerr,  27  N.  Y.  188,  25  How.  Pr. 
258.  Foi.l.oWEU  IN  Mahon  v.  New  York 
C.  K.  Co.,  24  N.  Y.  658;  Milhau  v.  Sharp. 
27  N.  Y.  611.  yuoTKU  IN  Hickey  7^  Chi- 
cago &  W.  1.  R.C0..6  III.  App.  172;  Des 
Moines  St.  R.  Co.  1:  Des  Moines  Broad- 
Gauge  St.  R.  Co.,  32  Am.  &  Eng.  R.  Cas. 
209.  73  Iowa  513;  Brooklyn  C.  R.  Co.  v. 
Brooklyn  City  R.  Co..  32  barb.  (N.  Y.)  358. 
Reviewed  in  Jackson  County  Horse  R. 
Co.  V.  Interstate  R.  T.  R.  Co.,  24  Fed.  Rep. 
306;  Denver  &  S.  R.  Co.  v.  Denver  City  R. 
Co.,  2  Colo.  673. 

The  mayor  and  common  council  of  the 
city  have  no  pow^r  to  make  a  grant  of  the 
right  to  construct  a  railroad  in  ;he  city ;  and 
where  such  grant  is  attempted  and  the 
grantees  convey  to  a  corporation  the  right 
thus  attempted,  for  a  specific  considc.ation, 
before  the  road  is  built,  nothing  of  value  in 
fact  passes,  and  the  grantees  cannot  sue  to 
recover  from  the  corporation  the  amount 
agreed  to  be  paid  therefor.  N.  Y.  Act  of 
1864,  ch.  140,  §  3,  only  makes  valid  such 
grants  in  favor  of  parties  and  their  assigns 
who  have  wholly  or  in  part  constructed  the 
road  authorized  by  the  grant.  Coleman  v. 
.Second  Ave.  R.  Co.,  38  N.  V.  201  ;  affirming 
4H /iarl>.  371.— Following  Butts  t/.  Wood, 
37  N.  Y.  317. 

My  N<.w  York  Act  of  April,  1831,  incor- 
porating plaintiff  company,  it  was  provided 
that  nothing  therein  ccjntained  should  au- 
thorize the  construction  of  a  railway  upon 
the  streets  of  New  York  without  the  con- 
sent of  the  city  authorities,  who  are  author- 
ized to  grant  permission  to  construct  it,  or 
to  prohibit  its  construction,  and  if  con- 
structed, to  regulate  the  manner  of  its 
operation.  Held,  that  the  city  might  grant 
the  right  on  such  terms  and  conditions  as 
it  might  think  proper  A'ew  York  &*  H. 
R.  Co.  V.  Mayor,  etc.,  of  N.  F.,  1  Hilt.  {N. 
Y.)  563. 


4 


STREET   RAILWAYS,  20-23. 


361 


eral 
ant 

ir  a 
my; 


4 


:'4 


Under  N.  Y.  Act  of  i860,  ch.  10.  provid- 
ing that  it  shall  not  be  lawful  thereafter  to 
lay,  construct  or  o(>erate  any  railroad  in  or 
along  the  streets  of  the  city,  except  under 
the  authority  of  the  legislature  thereafter 
•^'ranted,  the  common  council  of  said  city 
lias  no  power  to  authorize  the  extension 
of  a  street  railroad  except  where  such  ex- 
ti-nsion  is  necessary  10  the  enjoyment  of  a 
previous  valid  grant.  Peoples.  Third  Ave. 
R.  Co.,  45  Bard.  (A'.  K.)  63.  30  I/ow.  Pr. 
1 7 1 ;  affirmeit  (?)  in  3 1  llmv.  Pr.  637. 

^O.  Nature  of  tfriiiit  In  N«w  York 
i'lty.  — A  grant  l>y  the  duly  ciinslltiited  au- 
thorities of  the  city  of  thr  riylit  to  construct 
and  operate  its  road  in  the  streets  of  the 
<'ity  is  a  grant  in  fee,  vesting  the  grantee 
with  an  interest  in  the  streets  in  perpetuity 
10  the  extent  necessary  for  the  purposes  of 
its  road.  People  v.  O'Brien,  36  Am.  &•  Ettg, 
A'.  Cas.  78,  III  A'.  )'.  I.  18  .\.  E.  Rep.  C92, 
19  A'.  Y.  S.  R.  173;  re7>ersing  10  N.  Y.S.  R. 
596,  45  Hun  519.— QuoTiNO  Memphis  &  L. 
H.  R.  Co.  V   Railroad  Coni'rs,  113  U.  S.  609. 

21.  Duly  of  city  to  Kivu  iioticu  by 
IMibllviitioii  l>vfor(>  i;rniit  Im  iiitulc— 
A  failure  to  advertise  in  more  than  ono 
newspaper  the  time  and  place  when  an  ap- 
plication for  a  street-railway  franchise  will 
l)e  presented  to  the  board  of  aldermen,  as 
required  by  New  Yt  rk  Act  of  1884,  ch.  252, 
J:  4,  is  fatal  to  the  right  of  the  hoard  to  en- 
tc  rtain  snch  application.  People  ex  rel.  v. 
inani,  50  N.  Y.  S.  R.  465.  21  A'.  Y.  Supp. 
232.  (^  Htm  634  ;  affirmiii  in  138  A'.  Y.  653, 
mem.,  53  A'.  )'.  S.  R.  931,  34  A'.  E.  Rep.  513. 

Where  the  invalidity  of  a  ;^trect-r«ilway 
franchise  is  piitcnt,  the  m.iyor  of  said  city  is 
justified  in  refusing  to  designate  the  pa|>ers 
to  publish  the  notice  of  the  time,  place  and 
terms  of  sale  thereof,  and  the  court  wdl  not 
i;rant  a  nmndamus  to  compel  him  to  do  so. 
Piopie  ex  rel.  v.  Oranl,  50  .V.  Y.  .V.  R.  465, 
21  A'.  Y.  .Supp.  232,66  Hun  634,  affirmed 
in  138  A'.  )'.  653,  mem.,  53  A'.  Y.  S.  R.  931, 
3AM.E.  Rep.  513. 

It  seems  that  under  N.  Y.  Act  of  1886. 
rh.  65,  as  amended  by  ch  642  of  the  same 
year,  entitled  "  An  act  to  secure  adequate 
compensation  of  a  right  to  construct  ♦  ♦  ♦ 
street  railroads  in  cities "  ami  under  the 
provisions  <if  the  state  conslitulion.  munici- 
pal authorities  have  the  absolute  power  to 
gr.int  or  withhold  their  consent  to  the  con- 
siructio  of  a  street  railroad,  and  may  im- 
|)ose  any  conililions  which  they  may  dicm 
projMir  as  terms  u|)on  whuh  their  consent 


will  be  given.  People  tx  rtl.  v.  Barnard,  36 
Am.  &*  Etig.  R.  Cas.  70,  no  A'.  Y.  548,  18 
A^.  E.  Rep,  354.  18  A^.  Y.  S.  R.  542;  revers- 
ing  48  Hun  57,  15  A'.  Y.  S.  R.  689. 

In  the  notice  of  sale  of  the  right  to  use 
a  street  for  railroad  purposes,  under  section 
I  of  the  above  statute,  t..e  conditions  must 
be  specified,  and  no  c;her  conditions  can  be 
inserted  in  the  consent,  or  exacted  from  or 
imposed  upon  the  successful  bidder.  People 
ex  rel.  v.  Barnard,  36  Am.  &*  Eng.  R.  Cas. 
70,  no  N,  Y.  548,  18  A^.  £•.  Rep.  354,  18  A^. 
Y.  S.  R.  542 ;  reversing  48  Hun  57, 1 5  A^.  Y. 
S.  R.  689. 

22.  \Vli<>ii  power  docH  not  exist.— 
Where  streets  have  been  dedicated  to  the 
public  as  highways,  the  ultimate  fee  remain- 
ing in  the  original  owners,  a  municipal  cor- 
poration cannot,  in  the  absence  of  express 
legislative  authority,  allow  them  to  be  used 
by  a  railroad  company,  to  the  injury  of  the 
adjacent  lands;  but  it  is  otherwise  where 
the  f'je  to  the  streets  has  been  dedicated  to 
the  public,  or  they  have  been  condemned 
under  the  power  of  eminent  domain.  Perry 
v.  New  Orleans,  M.  &^  C.  R.  Co.,  55  Ala.  413. 

The  council  of  a  city  incorporated  under 
the  general  act  for  the  incorporation  of 
cities  and  villages  has  not  the  right  or 
power  to  grant  to  a  horse  or  dummy  rail- 
way company  the  use  of  any  of  its  streets 
withc'it  a  petition  to  the  owners  of  the  land 
representing  more  than  one  half  of  the 
frontage  >f  such  strcv-ts.  Hunt  v.  Chicago 
H.  &*  D,  R.  Co.,  121  ///.  638.  13  N.  E.  Rep. 
176,  n  \\'<H.  Rep.  45  ;  affirming  in  part  20 
///.  App.  282. 

The  ordinary  powers  of  a  municipality  do 
not  confer  the  right  to  permit  a  street-rail- 
way company  to  locate  tracks  and  operate 
its  road  in  the  municipality.  It  must  have 
S|)ecial  anlhority  from  the  legislature  for 
the  purpose.  Eicheh  v.  Evansville  St.  R. 
Co.,  s  Am.  5-  Eng.  R.  Cas.  274,  78  Ind.  261, 
41  Am.  Rep.  561. 

A  city  has  no  power  to  confer  upon  indi- 
'•  duals,  by  contract,  ine  right  to  construct 
and  operate,  for  their  own  benefit  or  indi- 
vidual use,  street  railroads  on  public  streets. 
Memphis  City  R.  Co.  v.  Mayor,  etc.,  of  Mem- 
phis  4  CtUdw.  (Tenn.)  406. 

2.*l.  Power  to  Kruiit  for  term  be- 
yond statdtory  limit,— (Inder  the  gen- 
eral  statutes  of  Michigan  and  the  Consti- 
tution which  provides  that  the  life  of  a 
cnrjjoration.  except  municipal,  railroad, 
plank-roari  and  canal  corporations,  shall  be 


3C3 


STREET   RAILWAYS,  24,  26. 


iMi' 


limited  to  thirty  years,  a  city  cannot,  under 
Its  general  power  to  control  and  regulate 
street  railways,  K'^''^  ^^  -i  street-railway 
company  the  rigiit  to  occupy  streets  fir  a 
period  of  time  extending  beyond  its  corpo- 
rate life;  it  being  a  well-settled  rule  oi  law 
that,  while  a  city  may,  under  its  legislative 
power  of  regulating  the  use  of  a  street,  |jcr- 
mit  a  railway  to  be  laid  in  the  streets,  it 
cannot  by  virtue  of  that  power  grant  an 
irrevocable  easement  for  any  stated  length 
of  lime.  Detroit  v.  Ihtroit  City  A'.  Co.,  56 
Aph.  &*  Eng.  A'.  Ois.  337.  56  /•"«•./.  A'a/f.  867. 

A  city  couiuil  is  a  trustee  in  the  control 
of  the  streets,  for  the  benefii  of  the  public, 
and,  though  forinert rustles  may  have  made 
an  tt/trii  7'/>'<^j  contract,  the  public  cannot  be 
deprived  of  the  benefits  of  ordinary  ccpi'tahlc 
remedies  to  maintain  its  rights  (  r  the 
ground  that  both  parties  to  the  contract  arc 
piiri  delicto :  and  so,  where  a  city  council 
passed  an  invalid  ordinance  extending  the 
right  of  a  street-railway  corporation  to 
occupy  a  street  beyond  the  limit  of  its  cor- 
porate existence,  which  railway  company 
assigned  all  its  property  and  franchises  to  a 
second  corporation,  a  subsequent  ordinance 
fixing  the  time  beyond  which  the  company 
could  not  remain  in  the  streets  at  the  date 
when  the  rorixirate  life  of  the  original 
grantee  should  terminate  was  valid,  and 
the  continuance  of  the  railway  tracks  in  the 
streets  after  the  time  limited  would  become 
a  public  nuisance,  which  would  be  removed, 
at  the  instance  of  the  city,  by  the  power  of 
injunction.  Detroit  v.  Detroit  City  A\  Co.,  56 
Am.  &>  Eng.  A\  tVit.  337,  56  /•></.  A\fi.  867. 

Where  a  city  by  ordinance  attempts  to 
extend  the  time  during  which  a  strcet-riiil- 
way  company  may  occupy  the  streets  of 
the  city  beyond  the  life  of  the  corporation, 
it  is  not  estop|)cd,  in  a  suit  against  the  rail- 
way company  to  compel  it  to  abandon  the 
streets  upon  the  termination  of  its  corpo- 
rate existence,  from  denying  the  validity  of 
the  ordinance,  by  reason  of  the  fact  that 
the  company  had  relied  upon  the  contract 
provisions  of  the  ordinance  with  reference 
to  the  amount  ot  taxes  which  it  should  pay, 
in  an  action  by  the  city  to  collect  taxes  hxed 
by  a  subsequent  ordinance,  since  tlie  judg- 
ment rendered  against  the  city  in  the  former 
case  did  not  involve  the  validity  ot  the 
ordinance  granting  the  raid  extension,  and 
was  tiierefore  not  res  adjiuiiiata,  Detroit 
V  Detroit  City  I't.  Co.  56  Am.  &•  Eng.  K.  Cts, 
337.  56  Jed.  A'e/>.  867. 


/'-%' 


Although  said  ordinance  was  accepted  by 
both  parties  as  valid  and  quietly  acquiesced 
in  for  ten  years,  and  though  the  company 
expended  large  sums  of  money  on  the  faith 
of  the  validity  of  the  ordinance,  and  obliga- 
tions were  enforced  by  the  city  against  the 
company  which  derived  their  binding  force 
only  from  the  ordinance,  the  plea  of  estoppel 
is  no  defense  in  favor  of  the  company,  u|)on 
whom  the  city  council  had  no  power  to  con- 
fer the  grant  to  occupy  the  streets  beyond 
the  period  oi  the  corporate  existence  of  the 
company,  since  those  who  made  the  invest- 
ments ought  to  have  known  the  statutory 
powers  under  which  the  city  council  acted. 
/)etroit  v.  Detroit  City  A'.  Co.,  56  Am.  «>• 
A'.  Cas.  137,  56  /•></.  A'ep.  867. 

24.  C;oiii|MMiNiitioii  to  owiicrt)  of  fee 
to  Htrect  aot  iieccMHfiry. — The  dedica- 
tion of  ;;  street  to  public  use  authorizes  any 
ordinary  use  for  street  purposes;  and  the 
use  of  a  street  for  the  tracks  of  a  streetcar 
company  is  of  this  class,  and  may  be  author- 
ized by  the  city  author!  ies  without  com- 
pensation to  the  owner  A  the  fee  of  the 
street.  Finch  v.  Rivenide  &*  A,  R.  Co.,  46 
Am,  &*  Eng.  R.  Cas.  107,  87  Cat.  597,  25 
Pac,  Rep,  765.— Distinguishing  Weyl  v. 
Sonoma  Valley  R.  Co.,  69  Cal.  203. 

25.  SelliiiK  privilege  to  coiiipniiy 
oft'eriiiK  KrenteHt  Imiiiiin.  —  Where  a 
statute  of  the  state  requires  the  sale  of  a 
street-railway  franchise  to  be  "  to  the  high- 
est bidder  "  at  public  auction,  requiring  a 
three  months'  advertisement  of  the  purpose 
to  sell  the  franchise,  with  particular  specifi- 
cations as  to  its  scope,  it  must  be  taken  to 
mean  the  highest  bidder  in  money,  and 
the  sale  of  the  franchise  to  the  highest  bid- 
der "  in  square  yards  of  gravel  pavement  " 
is  invalid.  Hart  v.  Ruckner,  56  Am.  &* 
Eng.  R.  Cas.  430,  54  Fed.  Rep.  925,  2  L'.  S. 
App.  488,  5  C.  C.  A.  I  ;  affirming  52  Fed. 
Rep.  835. 

A  street-car  charter  authorized  the  com- 
pany to  construct  its  road  over  the  streets 
of  the  city,  with  the  provision  "and  to 
which  the  city  council  may  consent,  author- 
ity lor  which  is  hereby  given  to  s.Tid  council 
to  make  an  agreement  therefor. '  Hetd, 
that  this  authorized  the  city  to  make  and 
enforce  an  ordinance  oflerinf;  the  privilege'^ 
to  the  company  paying  the  city  tiic  largest 
annual  bonus  therefor.  Covington  St.  R. 
Co.  V.  Covington,  9  Bush  (fCy.)  1 27. 

The  action  of  a  common  council  in  refus- 
ing to  entertain  a  proposition  from  a  street* 


STREET    RAILWAYS,  26. 


868 


railway  company  to  pay  the  city  $30,000  for 
a  franchise,  and  grantin({  tlie  franchise  to 
another  CDinpany  that  docs  not  pay  any- 
tliin^r  to  the  city,  amounts  to  malfeasance 
in  oflice,  and  justifies  a  judgment  holdin); 
the  permission  illegal  and  restraining  the 
corporation  fror.i  constructing  any  part  of 
the  proposed  road.  Aiiainson  v.  Union  K. 
Co.,  74  Jlun  3.  26  ;V.  Y.  Supp.  136,  56  N.  V. 
S.  a:  214. 

The  common  council  of  a  city  granted  to 
defendants  permission  and  authority  to  lay 
a  douhle  railway  track,  upon  terms  less  ad- 
vantageous to  the  city  than  had  been  offered 
by  other  perso.is.  //eM,  (i)  that  the  cor- 
poration, in  making  such  grant,  was  guilty 
of  a  clear  breach  of  trust,  and  that  the  court 
was  bound  to  prevent  the  grant  thus  ille- 
gally made  from  being  carried  into  effect ; 
(2)  tliat  persons  who  were  owners  of  prop- 
erly in  the  city,  and  taxpayers  to  a  large 
amount,  had  siicli  an  interest  in  preventing 
the  grant  from  being  carried  into  effect  tliat 
tliey  had  a  right  to  institute  a  suit  in  their 
own  names  for  the  purpose  of  obtaining  an 
injunction  to  prevent  the  construction  of 
the  railway  track.  Milhau  v.  Sfiarp,  15 
Barb.  (N.   V.)  193. 

2(t.  Power  ol*  oity  to  alter,  uinciid 
or  repeal  (;raiit  of  I'ruiicliiNe.*  A 
valid  city  ordinance  granting  the  right  to 
build  and  o|)cratc  a  street  railway,  after 
the  acceptance  and  expenditure  of  large 
sums  of  money  in  constructing  the  road, 
constitutes  a  contract,  which  is  protected 
by  U.  S.  Const,  art.  1.  ^  10,  forbidding  laws 
impairing  tlic  obligation  of  contracts.  Cit- 
i sens'  SI.  A".  Co.  v.  City  A'.  Co.,  56  Fe<f.  Nef. 
746.  -FoM.DWiNO  Western  P.  &  S.  Co.  w. 
Citizens' St.  R.  Co.,  128  Ind.  525,  26  N.  E. 
Rep.  188,  28  N.  E.  f<ep.  88;  Dartmouth 
College  V.  Woodward,  4  Wheat.  (U.  S.)  518. 

And  where  a  legislature  confers  upon  a 
city  the  power,  by  contract,  when  approved 
by  ordinance,  to  grant  franchises  to  street- 
car companies,  the  exercise  of  this  power, 
with  the  approval  of  the  city  by  ordinance, 
is  "  a  law  "  within  the  meaning  of  the  above 
provision  of  the  federal  Constitution.  Cit- 
izeni  St.  A'.  Co.  v.  O/y  A\  Co.,  56  Fci/.  Rep. 
746.-Expi.AiNiNr.  Hamilton  G.  L.  &  C.  Co. 
V.  Hamilton  City,  146  U.  S.  258,  13  Sup.  Ct. 
Uep.  90;  Shrcveport  v.  Cole,  129  U.  S.  36,  9 


•  See  post,  n«. 

J'ower  <>(  lily  (o  repeal  Rrant  of  franihisc  m 
SI  reel-railway  cunipuny,  see  note,  54  Am.  &  Em;. 
R.  Cas.  27. 


Sup.  Ct.  Rep.  3 10.    Following  Wright  v. 
Nagle,  101  U.  S.  791. 

If  the  law  of  a  city,  or  a  municipal  grant 
to  a  street-car  company,  is  a  valid  enact- 
ment, except  for  its  repugnancy  to  the  pro- 
vision of  the  United  States  Constitution 
which  prohibits  a  stale  from  passing  any 
law  impairing  the  obligation  of  contracts, 
then  such  repugnancy  presents  a  federal 
question,  and  gives  jurisdiction  to  a  United 
States  circuit  court.  Citizens'  St.  R.  Co.  v. 
City  R.  Co.,  56  Ftd.  Rep.  746. 

At  the  time  a  street>car  company  was 
chdrtcrcd  it  was  only  required  to  pave  be- 
tween the  rails.  By  a  subsequent  statute 
and  ordinance  it  was  required  to  pave  one 
foot  outside  of  the  rails.  Held,  that  this 
was  not  in  violation  of  the  provision  of  the 
federal  Constitution  forbidding  laws  impair- 
ing the  obligation  of  contracts,  where  a 
general  statute  provided  that  all  corpora- 
tions should  be  subject  to  legislative  con- 
trol. Sioux  City  St.  R.  Co.  v.  Sioux  City,  40 
Am.  <S-  F.ng.  R.  Cas.  275,  78  Iowa  367=  43 
A'.  W.  Rip.  224. 

Where  a  company  is  incorporated  by  the 
l'";;islatiire,  with  power  to  construct,  main- 
tain and  operate  a  railway  in  a  city,  upon 
the  consent  of  the  city,  in  such  manner  and 
upon  such  conditions  as  the  city  may  im- 
pose, and  the  city,  by  ordinance,  grants  the 
privilege  of  constructing  the  same  upon  a 
street,  the  grant  by  the  city  is  a  mere  li- 
cense, and  not  a  franchise.  The  franchise 
emanates  from  the  state.  Chicago  City  R. 
Co.  V.  J'lvp/eex  /<•/.,  73  ///.  54I.~Rkviewed 
IN  Chicago  &  W.  I.  R.  Co.  v.  Dunbar,  95  III. 
571  ;  Chicago  Mun,  G.  L.  &  F.  Co.  7/.  Lake, 
130  111.42,  29  Am.  &  Eng.  Corp.  Cas.  230, 
22  N.  E.  Rep.  616,  27  III.  App.  346, 

Where  an  ordinance  of  a  city,  granting  a 
railway  company  the  right  to  construct  and 
operate  a  track  along  a  street,  upon  certain 
conditions,  has  bcci  accepted,  the  rights  of 
the  contracting  parties  will  be  governed  by 
such  ordinance,  and  the  city  cannot  impose 
new  conditions  and  burdens  upon  the  com- 
pany without  its  consent,  such  as  the  con- 
struction and  operation  of  an  extended  line 
of  its  road.  People  ex  rel.  v.  Chiciigo  W.  D. 
R.  Co.,  25  Am.  &'  Eng.  R.  Cas.  258,  118 
///.  113,  7  A'.  E.  Rep.  116. 

Where  a  city  grants  to  a  street-railway 
company  the  right  to  lay  a  double  track,  and 
thereupon  the  company  expends  a  large 
amount  of  money,  the  city  cannot  after- 
ward, by  amending  the  ordinance  conferring 


864 


STREET   RAILWAYS,  27,  28. 


R 

\'\' 


the  franchise,  limit  the  company  to  a  single 
truck  in  a  certain  street,  unless  it  appears 
that  tlic  exercise  of  the  original  right 
works  an  injury,  when  the  city  may  restrict 
the  right,  under  the  exercise  of  its  police 
power.  Burlington  v.  Burlington  St.  K.  Co., 
49  Jowii  144.  —  Distinguished  in  Sioux 
City  St.  R.  Co.  V.  Sioux  City,  46  Am.  & 
Eng.  R.  Cas.  169,  138  U.  S.  98. 

Where  the  public  safety  and  convenience 
require  it,  a  city  may  revoke  a  grant  to  a 
Mreet-railway  company  of  the  right  to  lay 
its  ..racks  in  the  city  streets,  even  after  the 
tracks  have  been  liiid.  The  repeal  of  the 
granting  ordinance  gives  the  company  no 
•pht  to  compensation  where  the  tracks 
were  laid  after  the  mayor  and  city  solicitor 
hi.d  informed  the  president  of  the  company 
that  ut  the  lirst  meeting  of  the  city  council 
an  nidinuncc  wonid  be  submitted  to  pro- 
hibit the  laying  of  the  tracks.  Lake  Roland 
El.  R.  Co.  V.  Mayor,  etc.,  of  Baltimore,  54 
Ath.  &'  Eng.  R.  Cas.  11,  77  A/tt.  352,  26 
////.  A'e/>.  5(o,  -  Revikwing  People  v. 
OMrien,  36  Am.&  Eng.  R.  Cas.  78,  in  N.  Y. 
I  ;  Illinois  C.  R.Ci>.7'.  Illinois,  146  U.S.  387. 

Where  a  city,  by  authority  of  its  charter, 
grants  to  a  street-railway  company  the  right 
to  construct  a  branch  road  over  a  certain 
street,  it  cannot,  by  a  subsequent  ordinance, 
arbitrarily  annul  its  license ;  and  when,  un- 
der such  latter  ordinance,  it  attempts  by 
force  to  prevent  the  completion  of  the  road 
then  in  process  of  construction,  injunction 
will  ishu-j  restraining  the  city  from  such  in- 
terference. As/ieville  Sf.  R.  Co.  v.  As/ierilU, 
109  A'.  Car,  688,  14  S.  E.  Rep.  316. 

The  consent  by  a  city  council  that  a  com- 
pany may  occupy  a  street  with  its  road  is 
not  a  grant  in  the  nature,  and  having  the 
elements  and  consequences,  of  a  contnut, 
and  which  can  only  be  forfeited  by  judicial 
pnjceduie.  It  is  but  a  license,  wliii  h  nuiy 
be  withdrawn  at  any  time  before  it  is  acted 
on  by  the  company.  If,  un<lcr  such  license, 
a  road  l)c  built,  and  be  afterwards  abandoned, 
the  right  to  occupy  may  be  conferred  by  the 
city  on  anotli(-r  company  without  first  pro- 
curing a  judicial  decree  of  forfeiture  against 
the  company  that  first  procured  the  license. 
Grenl  C.  R.  Co.  v.  Gulf,  C.  &*  S.  F.  R.  Co., 
26  ,////.  &'  Eng.  R.  Cas,  114,  63  Tex.  529. 

Where  a  city  council,  having  the  power, 
grants  u  franchise  to  a  company  to  use  the 
streets  of  the  city,  and  such  grant  is  duly 
accepted  and  acted  upon,  it  becomes  a 
vested  right,  which,  in  the  absence  of  a  con- 


stitutional prohibition  of  the  granting  of 
such  franchises,  cannot  be  subsequently  im> 
paired  by  the  city  authorities.  Alayor,  etc., 
of  Houston  V.  Houston  City  St.  R.  Co.,  50  Am, 
&'  Eng.  R.  Cas.  380,  83  Tex.  548.  19  S.  IV. 
Rep.  127. 

27.  Power  oi*  lefrislature  to  alter, 
amend  or  repeal  Kfuiit  of  tVaiiclilHe. 
—  When  a  municipal  corporation,  By  au- 
thority of  the  state,  contracts  with  a  third 
person,  whereby  rights  become  vested  in 
such  person,  they  cannot  be  divested  by 
the  state.  Such  a  contract  is  pro  hac  vie* 
the  contract  of  the  state,  and  cannot  be  im- 
paired by  it.  Hence,  where  the  common 
council  of  a  city,  in  the  exercise  of  power 
conferred  by  the  legislature,  makes  an  ab- 
solute grant  to  a  horse-railroad  company  of 
the  right  to  build  its  ro:!d  on  certain  streets, 
and  the  company  accepts  the  grant  and 
builds  a  part  of  the  road  at  great  expense, 
the  legislature  cannot,  by  a  subsequent 
amendment  of  the  city  charter,  make  the 
right  of  the  company  to  build  the  rest  of 
the  road  dei>cndent  on  the  consent  of  a  ma- 
jority of  the  projierty  owners  on  the  street, 
such  act  being  unconstitutional  as  impair- 
ing the  obligation  of  a  contract.  HoTelman 
v.  Kansas  City  Horse  R.  Co.,  20  Aw.  &*  Eng. 
R.  Cas.  17,  79  Af 0.6x2. 

The  fafv^  »hai  the  legt!>^ature  may  confer 
upon  a  city  or  county  the  power  to  grant  to 
an  existing  corporate  body  a  franchise,  or 
to  create  a  corporation  with  certain  fran- 
chises and  powers,  do^-,  not  take  away  the 
constitutional  power  of  the  legislature  con- 
ferred by  Wis.  Const,  art.  2,  g  1,  to  take  away 
the  power  so  granted  to  the  city  or  county, 
or  to  alter  or  repeal  the  acts  of  the  city  or 
county  taken  under  such  delegated  author- 
ity. State  e.x  rel.  v.  Hilbtrt,  36  //;//.  <S-  Eng. 
R.  Cas.  1 18.  72  Wis.  184.  39  A',  ff '.  AV/.  326. 

2H.  ItepiMil  of  ((rant  or  cliartcr.  — 
Where  a  street  railroad  is  constructed  on 
the  streets  of  a  city,  in  pursuance  of  a  mu- 
nicipal ordinanci'.  the  subsequent  repeal  of 
the  ordinance  will  not  render  the  road  a 
nuisance.  Ittgtam  v.  Lhicago,  D.  <5^  At.  R. 
Co.,  38  Iinva  669. 

A  city  granted  to  a  rcmipanv  the  right  to 
construct  and  operate  its  road  in  thestr»-ets 
of  the  city,  and  to  make  traffic  contr.u  ts 
with  ai'othcr  company  by  whic  li  the  l.itter 
should  obtain  the  right  to  nm  tars  ovei  the 
tracks  of  the  former,  which  grant  imposed 
no  conditions  or  restrictions  in  respect  to 
the  duration  or  otherwise  of  such  contract 


STREET  RAILWAYS,  20-32. 


865 


g  of 

y  im- 
etc, 
>Am, 
IV. 

Iter, 
liUe. 

au- 
third 
ed  in 
by 


rights.  //*M,  (hat  the  company  did  not 
take  a  mere  license,  but  an  estate  in  fee  in 
perpetuity,  wliich  estate  constitutes  prop- 
erty of  whicli  it  and  its  grantees  cannot  be 
deprived  by  a  subsequent  act  repealing  its 
charter.  Ptopie  v.  O'liritn,  36  Am.  <S-  Eng. 
K.  Las.  78.  Ill  N.  Y.\.  18  A^.  E.  Ktp.  692, 
\f)  N.  Y.  S.  /,'.  173;  reversing  10  A'.  Y.  S, 
A'.  596,45  //«//  519.— Ari'RoviNU  Detroit  v. 
Detroit  &  II.  I'iuiik  Koud  Co., 43  Mich.  140. 
Distinguishing  ]\*ople  v.  Globe  Mui.  L. 
Ins.  Co.,  91  N.  Y.  174  :  Kric  &  N.  E.  R.  Co. 
V.  Casey.  26  Pa.  St.  287.  Explaining  Green- 
wood V.  Uiiiuii  Freight  R.  Co.,  105  U.  S.  13. 
Following  Dartmouth  College  v.  Wood- 
ward. 4  Wheat.  (U.  S.)  518.  Quoting 
Fletcher  v.  Peck,  6  Cranch  (U.  S.)  87  ;  Sink- 
ing Fund  Cases,  99  U.  S.  700  ;  Tonilinson  v. 
Icssup,  15  Wall.  (U.  S.)  454,  People  v.  Na- 
tional Trust  Co.,  82  N.  Y.  287;  Com.  v. 
Essex  Co.,  13  Gray  (Mass.)  239.  Reker- 
king  to  People  ex  icl.  v.  Boston  &  A.  R. 
Co.,  70  N.  Y.  569;  Philips  v.  Wickham,  1 
Paige  (N.  Y.)  590;  Mutin  v.  Illinois,  94  U. 
S.  113. 

2W.  Special  KraiitH.*— If  a  city  ordi- 
nance specially  authorizing  a  particular 
street-railway  company  by  name  to  occupy 
certain  streets  is  invalid  as  a  special  grant 
to  said  company,  it  is  absolutely  void ;  it 
cannot  be  given  a  general  effect,  so  as  to 
enure  to  the  benefit  of  another  company 
having  a  prior  charter  for  the  streets  named. 
I.arimtr  &•  L.  St,  A'.  Co.  v.  Larimer  St.  K. 
Co.,  137  Pa,  St.  533,  20  Atl,  Hep,  570.— Di.s- 
tinguishinc  Com.  v.  Harris,  10  W.  N.  C. 
10;  Reimer's  Appeal,  100  Pa.  St.  183. 

Whether  by  I*a.  Const,  art.  3,  §  7,  or  by 
Act  of  May  16,  1889,  §  52,  relating  to  streets 
and  sewers  in  cities  of  the  second  class,  the 
council  of  such  a  city  is  precluded  from 
passing  a  special  ordinance  granting  con- 
sent to  the  construction  of  a  street  railway 
by  a  particular  ci)m|>any,  incorporated  under 
Act  of  May  14,  1889,  n.Jt  decided.  Larimer 
Sf  I..  SI,  l\.  Co.  V.  Larimer  St.  A*.  Co.,  137 
/'a.  St.  533.  .:o  .,-///.  AV/>.  570. 

HO.  PvriiiiHNiuii  to  4>xtcii<l  truck.— 
The  c»«rcise  in  gorxl  faith,  by  the  council 
of  a  city  or  village,  of  the  discretion  vested 
III  It  by  Ohio  Rev.  St.  .S  2505,  as  corrected 
(77  Ohio  L.  42),  to  grant  permission  to  any 
corporation,  company  or  individual  owning 
or  having  the   right   to  construct  a  street 


*  Special  charteri  and  Ko'crai  siatutuiy  pro- 
visiuns,  see  note,  5  A.M.  &  Em;    R    Ja!>.  284. 


railroad  to  extend  its  track,  where  the 
council  may  deem  such  extension  beneficial 
to  the  public,  will  not  be  interfered  with  by 
the  court.  Sims  v.  Brooklyn  St.  A*.  Co,,  4 
Am.  <S-»  Eng,  R.  Cat.  132,  37  Ohio  St,  556. 

The  ordinance  granting  permission  to  ex- 
tend the  track  is  not  an  act  conferring  cor- 
porate powers.  It  is  merely  a  |>ermit  to  the 
corporation  to  exercise  the  corporate  powers 
conferred  by  general  law ;  therefore  such  an 
ordinance  is  not  an  act  conferring  corporate 
powers,  which  is  prohibited  by  the  Ohio 
Constitution,  art.  13,  §  1.  Sims  v.  Brooklyn 
St.  R,  Co.,  4  Am,  &»  Eng.  R.  Cas.  32,  37 
0/iio  St.  556. 

An  extension  of  the  route  of  a  street  rail- 
way, when  made  according  to  law,  is  to  be 
deemed  ami  taken  to  be  a  part  of  the  char- 
ter, as  if  the  same  had  originally  been  madv 
a  part  thereof,  and  is  to  be  treated  with  like 
consideration  as  the  original  grant.  Brad- 
dock  &•  T.  C.  R.  Co.  V.  Braddock  Elec,  R. 
Co,,  I  Pa,  Dist.  44. 

31.  AlaiMlaiiiiiH  to  compel  oxten- 
hIoii  of  track.— An  ordinance  granting  to 
a  company  the  right  to  extend  its  track  from 
its  then  terminus  o  the  city  limits  required 
the  track  to  be  extended  to  a  certain  park, 
being  a  point  short  of  the  city  limits,  by  a 
given  time,  and  from  that  point  on  to  the 
city  limits  as  soon  as  the  same  could  be  con- 
structed, operated  and  kept  in  repair  with- 
out actual  loss,  and  tiie  company  to  accept 
the  ordinance  within  ten  days  after  its  ap- 
proval by  the  mayor.  The  ordinance  was 
accepted,  and  the  track  was  built  and  ope- 
rated to  the  park.  On  mandamus  to  compel 
the  building  and  operation  of  the  track  to 
the  city  limits,  the  answer  showed  that  it 
could  not  be  >nstructed,etc.,  without  actual 
loss,  which  was  admitted  by  demurrer. 
L'eld,  that  the  answer  showed  a  good  reason 
why  the  company  should  not  be  compelled 
to  build  and  opcr.ite  such  part  of  the  road. 
People  e.x  rel,  v.  Chicago  /F.  D,  R.  Co,,  2$ 
Aw.  &*  Eng.  R.  Cas.  258,  118  ///.  113,  7  A'. 
E.  Rep.  116. 

il2.  How  grniitd  are  made— Dura- 
tion.—Under  Ohio  Municipal  Code,  §§  411, 
412,  a  grant  by  the  council  of  a  municipal 
corporation  to  build  a  street  railroad  must 
be  made  by  ordinance  directly  to  a  cor- 
poration, individual  or  individuals  to  be 
therein  named ;  and  the  authority  to  make 
the  grant  cannot  b?  delegated  by  the  coun- 
cil to  any  officer  or  board.  State  ex  rel.  v. 
Bell,  34  Ohio  St.  194,  21  Am.  Ry.  Rep,  84. 


^1 


366 


STREET   RAILWAYS,  33-30. 


III 


A  preliminary  ordinance  passed  in  pur- 
suance  of  a  general  ordinance  of  a  city  re- 
lating to  street  railroads,  designating  tiic 
route,  and  directing  the  city  clerk  to  adver- 
tise for  sealed  proposals  to  construct  and 
operate  the  road,  is  not  an  ordinance  cre- 
ating a  right,  or  granting  a  francliise,  or  in- 
volving the  expenditure  of  money,  within 
the  meaning  of  Ohio  Rev.  St.  §  i666,  and 
docs  not  require  the  approval  of  the  mayor 
of  the  city  before  it  takes  effect.  ta/e  cv 
rtl.  V.  Htnderson,  38  Ohio  St.  644. 

The  duration  of  a  grant,  as  long  as  it  docs 
not  create  a  perpetuity,  is  a  matter  for  il>e 
exclusive  determination  of  the  city  council. 
Mayor,  etc.,  of  Houston  v.  Houston  City  St. 
A'.  Co.,  50  ///«.  6-  Enjf.  A'.  Cus.  380,  83  Tex. 
548,  19  .V.  IV.  litp.  127. 

33.  How  KriiutN  nru  voiiNtrucd. — 
Grants  of  franchises  ire  to  be  strictly  con- 
strued, and  no  exclusive  privileges  will  pass, 
unless  by  express  grant  or  necessary  impli- 
cation. Citizens'  St.  R.  Co  v.  /ones,  34  Fed. 
Hep.  579.  Wyandotte  v.  CorrigiiM,  35  Kan. 
21,  10  Pac.  Rep.  99.  Ransom  v.  Citizens'  R. 
Co.,  104  Mo.  375,  16  S.  W.  Rep.  416. 

Chiirters  and  statutes,  granting  powers, 
are  to  be  strictly  construed  against  corpo- 
rations, and  nothing  given  by  implication. 
So  a  street-railway  company  was  refused  the 
right  to  use  steam  engines  where  a  grave 
doubt  existed  as  to  whether  the  statute 
granting  tiie  right  had  not  been  repealed. 
Com.  V.  Central  /'ass.  R.  Co.,  52  J'a.  St.  506. 
—Reviewed  in  West  Philadelphia  Pass. 
R.  Co.  V.  Philadelphia,  10  Phila.  (Pa.)  70; 
People's  Pass.  R.  Co.  v.  Marshall  St.  R. 
Co.,  20  Phila.  203. 

So  a  provision  in  a  street-railway  charter 
that  the  city  might  regulate  the  paving  of 
the  streets  and  the  laying  of  gas  and  water 
pipes  along  t\\cm—Ae/d,  not  to  take  away 
the  power  of  the  city  to  im|)ose  a  license  on 
cars.  The  rule  of  construction  expressio 
unius  eit  exclusio  alterius  did  not  apply. 
Johnson  v.  Philadelphia,  60  Pa.  St.  445. 

34.  CoiHlitioiiul  <liHup|»roval  of 
right  to  coiiHtriiut  roiul.  —  Where  the 
act  of  incorporation  gives  the  city  coun- 
cils power  by  disapproval,  within  thirty 
days  after  its  passage,  to  prevent  the  con- 
struction of  a  road,  and  councils  pass  an 
ordinance  the  first  section  of  which  is  a 
direct  disapproval,  but  the  second  section 
prescribes  conditions  upon  performance  of 
which  the  first  section  is  to  he  inopera- 
tive, this  is  not    the    disapproval    which. 


under  the  act,  would  divest  the  powers 
granted  by  it,  and  the  railroads  complying 
with  the  conditions  imposed  by  the  second 
section  of  the  ordinance  retain  their  fran- 
cliises.  FauU  v.  Second^  T.  St.  Pass.  K. 
Co..  3  Phila.  {Pa.)  164. 

The  company  may  enter  into  an  obliga- 
tion to  obey  and  submit  to  all  regulations 
imposed  by  ordinance  of  councils;  such 
obligation  imposes  no  new  duty,  nor  in- 
volves any  surrender  of  chartered  rights, 
for  councils  cannot  legally  pass  any  ordi- 
nances abridging  the  corporate  powers  of 
the  company.  Faust  v.  Second  &•  T.  St. 
Pass.  R.  Co.,  3  Phila.  (Pa.)  164. 

35.  CoiniMiiiy  iiocd  not  b«  incor- 
porated. —  Where  municipal  authorities 
grant  by  ordinance  the  right  to  lay  a  street 
railway,  and  it  is  confirmed  by  ihe  legis- 
lature, it  is  immaterial  whether  tlie  persons 
owning  the  franchise  are  organized  into  a 
ci^rporation  or  merely  a  partnership.  Xash 
V.  Lo7vry,  37  Minn.  261,  33  N.  W.  Rep.  787. 

There  is  no  statute  or  rule  of  law  in  force 
in  the  territory  of  Utah  to  prevent  an  indi- 
vidual from  constructing  and  operating  a 
railroad ;  and  a  license  granted  by  a  city 
for  the  construction  of  a  street  railway  is 
not  invalid  because  given  to  an  individual. 
Henderson  v.  Of^den  City  R.  Co.,  46  Am.  &- 
Eng.  R.  Cas.  95, 7  Utah  199,  26  Pac.  Rep.  286. 

3<(.  injunction  byoragainHt  co«a- 
imny.*— A  court  of  equity  has  jurisdict'on 
to  restrain  the  placing  of  an  obstruction 
upon  the  streets  of  a  city,  and  such  city  may 
maintain  a  bill  to  restrain  an  obstruction  of 
its  streets.  Metropolitan  City  R.  Cv.  v.  Chi- 
cago,  2  Am.  &*  Eng.  R.  Cas.  291,  96  ///.  620. 
— lOisTiNCiUiSHiNc;  Dunning  v.  Aurora,  40 
111.  481 ;  Cairo  &  V.  R.  Co.  v.  People.  92 
III.  170. 

It  is  no  ground  for  an  information  in 
equity  by  the  attorney-general  to  restrain 
a  street-railroad  corporation  from  laying  its 
tracks  and  running  its  cars  in  a  certain 
street,  under  an  order  of  the  board  of  alder- 
men, that  tlie  corporation  had  failed  to 
accept  the  order  by  a  writing  filed  with  the 
city  clerk  within  thirty  days  from  the  pas- 
sage of  the  order,  as  required  by  its  terms, 
the  information  having  been  filed  before 
the  end  of  such  thirty  days,  and  that  the 
tracks  as  laid  did  not  comply  with  the 
order,  the  variation  not  being  stated,  and 


¥n 


'Street  railways.     Obstruction  of  streets  by, 
sec  note,  50  Am.  &  Enu.  R.  Cas.  178. 


STREET   RAILWAYS,  37,  38. 


367 


era 
ing 
)nd 


i 


not  appearing  to  be  material  or  intentional. 
Aitornty-GeHtral  v.  MttropoUtan  R,  Co.,  125 
Mass.  SI 5. 

Where  a  license  to  lay  down  a  railway 
track  on  certain  streets  is  granted  by  a 
city  to  "  F.  and  his  associates,  to  be  known 
as  the  A.  company,"  who  could  act  as  a 
corporation  only  upon  taking  out  letters  of 
incorporation  or  obtaining  a  legislative 
charter,  the  question  whether  such  incor- 
poration has  been  duly  obtained,  or  wheth- 
er those  parties  have  attempted  to  exercise 
corporate  functions  without  it,  cannot  be 
raised  in  an  action  by  one  who,  claiming  to 
be  the  owner  of  the  franchise,  seeks  to  have 
an  assignment  of  the  same  to  defendant 
company  set  aside  and  to  enjoin  the  com- 
pany from  operating  under  it.  Atkinson  v. 
Asheville  St.  R.  Co.,  113  A^.  Car.  581,  18  S. 
E.  Rep.  254. 

Defendant  and  other  members  of  a  city 
council  were  restrained  from  granting  a 
franchise  to  a  street  railroad,  and  defend- 
ant  was  subsequently  attached  fur  con- 
tempt in  violating  the  injunction  by  voting 
to  pass  a  resolution  granting  the  ri^jht 
which  was  restrained.  In  defense  he  in- 
sisted that  his  voting  on  the  resolution  was 
an  act  of  legislation  by  the  common  coun- 
cil, and  as  such,  beyond  the  control  of  the 
courts.  The  ordinance  was  subject  to  a 
condition  to  be  accepted  by  the  company. 
Held,  that  defendant's  act  was  not  legisla- 
tion, but  a  mere  grant  of  a  franchise,  sub- 
ject to  the  condition  imposed.  People  ex 
rel.  V.  Sturlevant,  9  N.  Y.  263 ;  affirtning  1 
Duer  4JI,  512. 

Under  Pa.  Act  of  June  19,  1871,  which 
authorizes  courts  of  equity  to  restrain  in- 
jurious acts  committed  by  corporations  in 
the  exercise  of  powers  not  conferred  upon 
them  by  their  charters,  a  street-railway 
company  has  a  standing  as  a  complainant 
in  a  bill  in  equity  to  restrain  another  com- 
pany from  unlawfully  Living  tracks  in  a 
street  already  occupied  by  the  complainant. 
GermantowH  Pass.  R.  Co.  v.  Citizens'  Pass. 
R.  Co.,  I  SI  Pa.  St.  138,  24^//.  Rep.  1103. 

A  county  court  in  Tennessee  has  the 
power  to  consent  that  a  street-car  company 
may  run  along  a  public  road  of  the  county ; 
but  where  it  becomes  necessary  to  cross  an 
existing  railroad  track,  the  right  will  be  de- 
teimined  by  (1)  whether  the  public  road 
is  legally  established  as  such,  and  (2)  upon 
making  compensation  to  the  company  own- 
ing the  existing  road  ;  and  when,  such  com- 


pany is  proceeding  to  cross  without  such 
compensation  being  made,  and  where  the 
public  road  has  only  been  established  sub- 
ject to  certain  conditions,  which  have  never 
been  complied  with,  its  construction  may 
l>e  enjoined  at  the  suit  of  the  railroad  com- 
pany. Cincinnati  Southern  R.  Co.  v.  Chat- 
tanooga Elec.  St.  R.  Co.,  44  Fed.  Rep.  470. 

37.  Quo  warranto  to  iiroveiit,  or 
to  compel  surrender  of  eliartor.— 
An  ordinance  giving  the  right  to  construct 
an  ordinary  single-track  street  railway  in 
the  centre  of  a  street  fifty  feet  wide,  of 
which  twenty-five  feet  are  paved,  in  such 
a  manner  as  to  leave  a  space  of  nearly  nine 
feet  for  the  passage  of  vehicles,  which  is 
sulficient  for  ordinary  vehicles  to  piiss  in, 
is  not  so  unreasonable  as  to  require  the 
interference  of  the  court.  People  ex  rel.  v. 
Ft.  Wayne  &*  E.  R.  Co.,  92  Mich.  522,  52 
A^.  \V.  Rep.  1010.— Distinguishing  People 
V.  Plymouth  Plank  Road  Co.,  31  Mich.  178; 
Thompson  v.  Moran,  44  Mich.  602.  Fol- 
lowing People  ex  rel.  v.  Mutual  Gas- 
Light  C<i.,  38  Mich.  154.  Limiting  De- 
troit City  R.  Co.  V.  Mills,  85  Mich.  647. 
— QuoTKD  IN  Attorney-General  v.  Detroit 
Suburban  R.  Co.,  96  Mich.  65. 

The  right  to  construct  such  a  railway  be« 
ing  one  which  the  common  council  hits  a 
right  to  grant,  which  right  it  has  exercised, 
the  case  presented  is  not  such  a  one  iis  calls 
fur  the  exercise  of  the  jurisdiction  of  this 
court  in  a  special  proceeding  instituted  by 
giio  warranto.  People  ex  rel.  v.  Ft.  Wayne 
&*  E.  R.  Co.,  92  Mich.  522,  52  A'.  W.  Rep. 
1010. 

Under  Wis.  Rev.  St.,  §  1862,  a  municipal 
ordinance  granting  to  a  street-railway  cor- 
poration a  franchise  to  occupy  and  use  pub- 
lic streets  for  the  purposes  of  its  railway 
has  the  force  and  eflfect  of  a  statute  of  the 
state  ;  and  for  a  violation  of  the  provisions 
of  such  ordinance  an  action  may  be  main- 
tained under  section  3241,  to  vacate  the 
charter  o.'  annul  the  existence  of  such  cor- 
poration, itateex  rel.  v.  Madison  St.  R.  Co., 
36  Am.  &*  Eng.  R.  Cas.  135,  72  Wis.  612,  40 
A'.  W.  Rep.  487.— Approved  in  Citizens' 
Horse  R.  Co.  v.  Belleville,  47  III.  App.  388. 

<18.  Bight  of  city  to  coiiHtriict  sew- 
erN,  etc.  —  Riglits  of  mortgaKecH  of 
road.— A  city  must  construct  sewers  with 
reference  to  the  rights  of  an  existing  street- 
car line ;  and  if  they  be  laid  so  as  to  inter- 
fere with  the  track, and  prevent  the  running 
of  cars,  when  other  parts  of  the  street  were 


368 


STREET   RAILWAYS,  30,40. 


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equiilly  suitable  for  the  sewers,  the  city  is 
liable  ;  but  it  is  not  required  to  incur  addi- 
tional expense  by  reason  of  having  author- 
ized the  street-car  line.  C/a/>p  v.  Spokane, 
SlFtii.  AV/.  515. 

The  holder  of  a  mortgage  un  a  street  rail- 
road is  as  much  entitled  to  protection  from 
injury  by  unnecessary  interference  with  the 
track  by  the  city  in  laying  sewers  as  the 
holder  of  any  other  kind  of  property ;  and 
an  allegation  that  the  action  of  the  city  in 
such  interference  will  impair  the  mortgage 
security  more  than  $2000  is  sufTicicnt  to  give 
jurisdiction  to  a  federal  court.  CAi//  v.  Spo- 
kane, 53  Fed.  h'ep.  515. 

In  such  case,  where  it  appears  that  the 
street-car  company  is  insolvent,  and  will  be 
unable  to  repair  the  damage  and  operate  its 
road  after  such  interference  by  the  city,  and 
that  a  judgment  against  the  city  cannot  be 
collected,  and  that  the  railroad  property, 
after  the  injury,  will  not  be  adequate  security 
for  the  mortgage  debt,  the  holders  of  the 
mortgage  mc  entitled  to  an  injunction  to 
restrain  t'lie  interference.  Clapp  v.  Spokane, 
S3  Fed.  Rep.  515. 

A  contract  for  a  right  of  way.  etc.,  be- 
tween a  city  and  a  company,  provided  that 
the  city  should  not  be  liable  for  any  damage 
"  from  any  delay  in  the  transportation  of 
passengers  that  may  be  incurred  by  the  lay- 
ing of  sewers,  water  or  gas  pipes."  The  com  • 
pany  refused  to  take  up  its  track  to  enable 
the  city  to  construct  a  sewer,  and  thereupon 
the  city  caused  the  track  to  be  taken  up  and 
refused  to  replace  it.  Held,  that  the  city 
did  not  become  liable  in  damages  to  the 
company.  Louisville  City  li.  Co.  v.  Louis- 
ville, Z  Bush  (Ky.)  415. 

The  easement  of  a  street  railway,  in  the 
city  of  Baltimore,  is  h'>ld  subject  to  the 
power  of  the  city,  under  Md.  Code  Pub. 
Loc.  Laws,  art  4.  §  835.  to  construct  sewers, 
and  the  company  cannot  resist  the  act  of 
the  city  in  tearing  up  its  tracks  for  that  pur- 
pose. Kirby  v.  Citizens'  A'.  Co.,  48  Afd.  i68. 
The  provision  of  N.  Y.  Act  of  i860,  ch. 
$12.  §  4.  that  the  city  authorities  are  pro 
hibited  from  doing  "  any  act  to  hinder,  de- 
lay or  obstruct  the  operation  of "  the  rail- 
road chartered  by  the  act,  is  to  be 
construed  as  prohibiting  the  city  from 
doing  anything  purposely  to  obstruct  the 
road,  but  not  so  as  to  prevent  the  city  from 
completing  a  general  sewerage  plan.  And 
where  the  legislature  subsequently  passes  a 
statuic    auiliDi  i/iig  the  city  to   adopt    a 


general  plan  of  sewerage,  it  is  to  be  inferred 
that  it  was  the  intention  to  withdraw  any 
obstacles  to  the  work  which  any  prior  law 
permitted.  Dry  Dock,  E.  B.  &*  B.  R.  Co.  v. 
Mayor,  etc.,  of  N.  Y.,  55  Barb.  (N,  K)  298. 
And  where  it  became  necessary  in  carry- 
ing out  the  sewerage  plan  temporarily  to 
obstruct  the  running  of  cars,  the  prohibitory 
language  of  the  act  of  i860  can  not  oper- 
ate to  prevent  the  construction  of  the  sewers. 
The  law  will  tolerate  a  private  loss  rather 
than  a  public  evil.  Dry  Dock,  E.  B.  &*  B. 
A'.  Co.  V.  Afayor,  etc.,  0/ N.  V.,  $$  ^^"^6.  {N. 
y.)  298. 

Where  a  city  reserves  "  authority  to  enter 
upon  said  streets  or  any  part  thereof  for  the 
construction  of  sewers."  the  city  may  cause 
the  construction  of  sewers  in  that  portion  of 
the  streets  covered  by  a  company's  tracks. 
Spokane  St.  B.  Co.  v.  Spokane,  5  IVasA,  634, 
32  Pac.  Rep.  456. 

30.  Waiver  of  objection  to  laying 
tracli  on  iinaiitliorizetl  Htreet.— Where 
a  company,  under  an  ordinance  granting  it 
a  right  to  lay  tracks  in  certain  streets,  lays 
and  operates  in  connection  with  such  system 
a  track  upon  a  street  not  named  in  its  fran- 
chise, the  city  is  estopped  to  interfere  there- 
with, when  it  had  knowledge  thereof  through 
its  officers,  the  tracks,  in  fact,  being  laid 
under  the  direction  of  its  superini.endent  of 
streets,  and  the  company  having,  for  several 
years,  operated  its  railway  thereon  without 
objection,  and  paid  taxes  assessed  upon  the 
property  by  the  city.  Spokane  St.  R.  Co.  v. 
Spokane  Falls,  6  Wash,  521,  33  Fac.  Rep, 
1072. 

40.  AdvertisinK  and  Helling  right 
to  construct  road.  —  A  city  advertised 
for  bids  for  the  construction  of  a  street  rail- 
road, and  a  bid  was  made  by  an  unincor- 
porated company,  and  accepted  with  certain 
modifications,  which  were  agreed  to.  No 
formal  contract  was  signed,  but  the  city 
passed  a  resolution  giving  permission  to  the 
company  to  incorporate,  but  expressly  pro- 
viding that  nothing  was  to  change  the  con- 
ditions  "of  the  propositions  heretofore 
made  and  accepted  by  the  parties  respect- 
ively." The  company  incorporated  and 
offered  to  execute  a  formal  contract  and 
carry  out  the  work,  but  in  the  meantime  op- 
position to  the  road  had  been  made,  and  the 
city  resolved  to  recede  from  its  project  of 
having  the  road  built,  and  refused  to  com- 
pictc  the  contract.  Held,  that  there  was  not 
such  a  perfect  contract  between  the  city  and 


STREET    RAILWAYS.  4 1  44. 


369 


:| 


the  unincorporated  company  as  to  be  binrl- 
ing ;  and  even  if  there  was,  there  was  no  evi- 
dence that  the  city  had  accepted  the  in- 
corporated company  in  the  stead  of  the 
unincorporated  one.  Ptopit's  Ji.  Co.  v. 
Memphis  R.  Co.,  lo  Wall.  (U.  S.)  38.— 
QuoTF-n  IN  Denver  &  S.  R.  Co.  v.  Denver 
City  R.  Co..  2  Colo.  673. 

41.  Motive  power  on  "liorMe  rnil- 
roadH."  — In  an  ordinance  of  a  city  con- 
sentinfjtotlie  construction  and  operation  of 
a  railroad  within  the  city,  tlie  words  "  horse- 
railroad  track  or  tracks  "  must  be  taken  as 
descriptive  of  the  railroad  to  be  constructed, 
and  not  of  the  motive  power  to  be  used, 
where  the  terms  "  horse  railroad "  and 
"  street  surface  railroad  "  have  come  to  be 
convertible.  Paterson  R.  Co.  v.  Grundy,  56 
Am.  6-  Eng.  R.  Cas.  486,  51  N.  J.  Eq.  213, 
26  Atl.  Rtp.  788. 

42.  IllKlitM  mill  liubllitlcN  of'HiiliHe- 
qiieiit  piircliiiHerti  of  roiul.  — A  city 
granted  to  a  company  the  ri(;lit  to  construct 
a  street  railway  on  certain  streets  under  an 
ordinance  requiring  a  stated  car  service  to 
be  furnished.  The  company  thereafter  exe- 
cuted to  defendant  a  deed  granting,  assign- 
ing and  conveying  to  defendant  all  fran- 
chises, powers,  privileges  and  immuniti(>s 
possessed  by  it.  Defendant  accepted  the 
deed,  and  operated  the  line  for  a  time.  IhU, 
that  defendant  thereby  assumed  the  pen- 
formance  of  the  duties  toward  the  public 
which  before  rested  on  the  grantor.  Potwin 
Place  V.  Topeka  R.  Co.,  56  Am.  &^  Eng.  R. 
Cas.  549.  51  Kan.  609,  33  Pac.  Rep.  309. 

43.  Special  Oeoricia  act  coiiHtriied. 
— Ga.  Act  of  August  26,  1872,  incorponiting 
the  West  Knd  &  Atlanta  St.  R.  Co.,  does 
not  authorize  the  company  to  construct  and 
use  street  railroads  in  all  of  the  streets  of 
Atlanta,  but  each  route  selected  by  the 
company  shall  be  first  approved  by  the  city 
council,  and  it  shall  have  the  right  to  con- 
struct its  railroad  thereon.  West  End  &*  A. 
St.  R.  Co.  v.  Atlanta  St.  R.  Co.,  49  Ga.  151. 

b.  Exclusive  Privileges. 

44.  Power  to  ffraiit,  generally.*  ~- 

A  city  cannot  grant  to  one  street-car  com- 
pany the  exclusive  privilege,  for  a  term  of 
years,  of  operating  cars  on  streets  so  as  to 
take  away  its  power  to  grant  similar  privi- 


•Grant  of  exclusive  privileKcs  lo  street-rail- 
way companies,  see  notes,  32  Am.  &  Eng.  R. 
Ca8.  J16  ;  36  /,/.  116. 

7  D.  R.  I) -34 


Icgi's  to  other  < ompanics,  unless  it  be  spe- 
cially aiithorizrri  to  do  so  by  the  legislature. 
Jackson  County  Horse  R.  Co.  v.  Interstate  R. 
T.  R.  Co..  24  Ecd.  Rep.  306.  — APPLVINO 
Atchison  St.  R.  Co.  v.  Missouri  Pac.  K.  Co., 
31  Kan.  660,  3  Pac.  Uep.  284.  Rf.vikwino 
Davis  V.  Mayor,  etc.,  of  N.  Y.,  14  N.  Y.  506. 

The  grant  of  a  right  of  way  to  a  street- 
railway  company  amounts  to  an  extinguish- 
ment of  the  right  of  the  grantors,  the  city, 
and  implies  a  contract  not  to  reassert  the 
right  by  granting  it  to  another  company  ; 
and  the  grantee  com[>any  should  be  pro- 
tected from  impairment  of  its  privileges  and 
franchises  by  attempting  to  appropriate 
them  to  the  use  of  another  company. 
Fidelity  T.  .^  S.  V.  Co.  v.  Mobile  St.  R.  Co., 
53  Eed.  Rep.  687. 

While  the  exclusive  power  conferred  upon 
a  city  to  grant  a  license  does  not  authorize 
it  to  grant  an  exclusive  license,  yet  such 
power  is  conferred  when  it  is  '<uthorized  to 
grant  or  refuse  a  license,  /iurliugton  &*  H. 
County  Ferry  Co.  v.  Davis,  48  Iowa  133. — 
Explained  in  Des  Moines  St.  R.  Co.  v. 
Des  Moines  Broad-Gaugc  St.  R.  Co.,  32  Am. 
&  Eng.  R.  Cas.  209,  73  Iowa  $13. 

A  city  ordinance  granting  to  a  company 
the  right  to  lay  a  single  or  double  track 
along  all  its  streets,  and  providing  further 
that  "  the  right  herein  granted  to  said  com- 
(lany  to  operate  said  railway  shall  be  exclu- 
sive for  the  term  of  thirty  years,"  and  that 
"the  said  city  shall  not, until  the  expiration 
of  said  term,  grant  to  or  confer  upon  any 
person  or  corporation  any  privileges  which 
will  impair  or  destroy  the  rights  or  privileges 
herein  granted  to  said  company"— A*/</,  to 
mean  that  the  city  should  not  permit  rival 
companies  to  operate  street  railways  on  its 
streets  during  that  time,  and  not  simply  that 
it  would  grant  no  right  to  interfere  with 
said  company  in  operating  the  railroad 
which  it  might  build.  Des  Moines  St.  R.  Co. 
V.  Des  Moines  Broad-Gauge  St.  R.  Co.,  32 
Am.  &-  Eng.  R.  Cas.  209,  73  Jowa  513,  33 
A'.  «'.  Rep.  610,  35  iV.  \V.  Rep.  602. 

Whether  the  common  council  has  the 
power  to  grant  an  exclusive  use  of  a  street 
for  street-railway  purposes,  qurrre,  it  not 
appearing  that  any  attempt  hr»s  been  made 
by  others  than  the  respondent  to  acquire  a 
similar  privilege,  and  t*.e  grant  being  good 
to  the  extent  of  the  power  vested  in  the 
council  under  the  statute;  and,  if  such 
power  has  been  exceeded,  the  question  can 
properly  be  raised  when  otner  interests  re- 


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quire  it.  People  ex  rel.  v.  Ft.  Wayne  &•  E. 
R.  Co.,  92  Mich.  522,  52  N.  W.  Hep.  loio. 

Under  a  city  charter  not  authorizing  the 
council  to  grant  franchises  that  are  exclu- 
sive, the  council  cannot  grant  an  exclusive 
right  of  way  upon  streets  in  the  city.  Hen- 
derson V.  Ogden  City  R.  Co.,  46  Aw  &*  Eng. 
R.  Cas.  95,  7  Utah  199,  26  Pac.  Rep.  286.— 
Followed  in  Ogden  City  R.  Co.  v.  Ogden 
City,  7  Utah  207. 

45.  Legislative  sanction  nc;>L>Hsary. 
— A  municipal  corporation  cannot  grant  to 
a  street  railway  the  exclusive  use  .  't-* 
streets  unless  it  has  legislative  sane'.  ' 
do  so.  People's  Pass.  R.  Co.  v,  AI  ,  //;>, 
(Tenn.)  16  5.   W.  Rep.  973. 

And  the  power  must  be  expressed  In 
plain  words,  or  so  direct  as  to  amount  to 
the  same  thing  by  implication.  Parkhnrst 
V.  Capital  City  R.  Co.,  56  Am.  &*  Eng.  R. 
Cas.  455,  23  Oreg.  471,  32  Pac.  Rep.  304. 
— Approving  Saginaw  Gas-I  "ght  Co.  v. 
Saginaw,  28  Fed.  Rep.  536;  Grand  Rapids 

E.  L.  &  P.  Co.  V.  Grand  Rapids  E.  E.  L.  & 

F.  G.  Co.,  33  Fed.  Rep.  659.  Disapproving 
Newport  v.  Newport  Light  Co..  84  Ky.  167 ; 
Des  Moines  St.  R.  Co.  v.  Des  Moines 
Broad  Gauge  St.  R.  Co.,  73  Iowa  513,  33 
N.  W.  Rep.  610,  35  N.  W.  Rep.  602. 

A  grant  to  a  city  of  exclusive  power  "to 
permit,  allow,  and  regulate  the  laying  down 
of  tracks  for  street-cars  upon  such  terms 
and  conditions  as  the  council  may  pre- 
scribe "  does  not  authorize  the  city  to 
grant  a  company  an  exclusive  franchise  on 
its  streets  for  a  term  of  years.  Parkhurst 
V.  Capital  City  R.  Co.,  56  Am.  &*  Eng.  R. 
Cas.  455,  23  Oreg.  471,  32  Pac.  Rep.  30.1. 

46.  Power  of  city  of  New  Orleans 
to  gfrant.— The  city  has  no  power  under 
its  charter  and  the  laws  of  Louisiana  to 
grant  to  a  company  the  sole  and  exclusive 
right  to  the  use  of  the  public  streets  of  the 
city  lor  a  street  railroad.  New  Orleans  City 
R.  Co.  V.  Crescent  City  R.  Co.,  12  Fed.  Rep. 
308.  New  Orleans,  C.  &*  L.  R.  Co.  v.  New 
Orleans,  44  La.  Ann,  748,  1 1  So,  Rep.  77. 

So  as  to  deprive  succeeding  councils  of 
the  power  of  performing  the  duty  of  regu- 
lating the  use  of  the  streets  in  such  manner 
as  they  may  deem  best  for  the  public  inter- 
est. Canal  &*  C.  Si.  R.  Co.  v.  Crescent  City 
R.  Co.,  40  Am.  &*  Eng.  R.  Cas.  329,  41  La. 
Ann.  561.  6  So.  Rep.  849. 

An  injunction  that  has  issued  to  restrain 
other  parties  from  erecting  a  street  railroad 
on  a  particular  piece  of  ground,  predicated 


on  the  alleged  exclusive  right  on  the  part  of 
the  petitioner,  will  be  dissolved  and  set 
aside  if  it  be  not  shown  that  he  has  such  ex- 
clusive right.  The  fact  that  the  vendor  of 
the  petitioner  had  acquired  the  exclusive 
right  from  the  city  to  build  a  street  railroad 
over  the  neutral  ground  on  Canal  street, 
and  afterwards  abandoned  it,  will  not  of  it- 
self confer  the  exclusive  right  upon  a  third 
party  who  may  obtain  permission  from  the 
city  to  build  a  railroad  thereon.  New  Or- 
leans City  R.  Co.  v.  Crescent  City  R.  Co.,  23 
La.  Ann.  759. 

The  power  of  regulating  the  streets,  dele- 
gated to  the  city  by  the  legislature,  em- 
braces authority  to  establish  street  railways 
on  its  streets,  but  it  does  not  include  au- 
thority to  grant  to  any  person  or  corpora- 
tion an  exclusive  privilege  to  operate  a 
railway  on  any  street.  New  Orleans,  C.  6*» 
L.  R.  Co.  V.  New  Orleans,  50  A>n.  &•  Eng. 
R.  Cas.  391,  44  La.  Ann.  728,  11  So.  Rep.  78. 

If  the  city  does  not  declare  the  grant  of 
exclusive  privileges  forfeited,  and  the  cor- 
poration, without  interference  on  the  part 
of  the  city,  constructs  its  road,  the  city  is 
estopped  from  forfeiting  the  grant.  New 
Orleans,  C.  &*  L.  R.  Co.  v.  New  Orleans,  44 
La,  Ann.  748,  1 1  So.  Rep.  77. 

Another  corporation  running  a  line  of 
street-cars  over  the  same  street  cannot  in- 
terpose the  defenses  of  the  city  in  aid  of  a 
grant  of  an  exclusive  privilege  over  the  same 
street.  New  Orleans,  C.  &*  L.  R.  Co.  v. 
New  Orleans,  44  La.  Ann.  748,  1 1  So.  Rep.  77. 

47.  Power  of  city  of  Cincinnati  to 
grant.— Contracts  made  by  the  council, 
granting  to  street-railroad  companies  ease- 
ments in  the  streets  of  a  city,  are  contracts 
made  in  behalf  of  the  city,  within  the  mean- 
ing of  section  159  of  the  municipal  code. 
Cincinnati  St,  R.  Co.  v.  Smith,  29  Ohio  St. 
291. 

The  city  council  has  not  the  power  to 
pass  an  ordinance  giving  to  a  street  railroad 
the  exclusive  right  to  operate  its  road  upon 
a  street.  Cincinnati  St.  R.  Co.  v.  Smith,  29 
Ohio  St.  291. 

Under  the  municipal  code  of  the  city,  the 
city  council  is  not  authorized  to  pass  an 
ordinance  giving  to  street-railroad  compa- 
nies the  exclusive  right  to  maintain  and 
operate  such  railroads  upon  streets,  or  to 
grant  the  right  to  construct  such  railroads 
on  streets  to  be  designated  to  such  corpo- 
ration or  company  of  individuals  as  will  bid 
"  the  lowest  price  of  commutation  tickets  in 


STREET   RAILWAYS,  48,  49. 


371 


packages,"  the  law  requiring  such  grants  to 
be  let  to  the  one  that  "will  agree  to  carry 
passengers  at  the  lowest  rate  of  fare  " ,  and 
where  an  ordinance  contains  such  unau- 
thorized provisions,  and  they  are  so  con- 
nected with  authorized  provisions  that  their 
separation  is  impracticable,  the  whole  ordi- 
nance is  invalid.  Cincinnati  St.  R.  Co.  v. 
Smilh,  29  Ohio  St.  291. 

48.  Power  to  authorize  second 
road.— Cal.  Act  of  1870,  granting  to  city 
councils  the  power  to  authorize  street  rail- 
roads, does  not  prohibit  them,  when  there  is 
one  track  in  a  street,  from  granting  the 
right  to  construct  another  in  the  same 
street.  Oakland  R.  Co.  v.  Oakland,  B.  &*  F. 
V.  R.  Co.,  45  Cal.  365,  5  Am.  Ry.  Rep.  148. 

Defendants  were  granted  a  right  of  way 
for  a  street  railroad  over  a  portion  of  Mont- 
gomery avenue  in  San  Francisco.  Plaintiff 
was  granted  a  similar  right  of  way  for  more 
than  five  blocks  over  the  same  portion  of 
the  street.  Held,  that  under  Cal.  Code,  § 
499,  providing  that  two  companies  shall  not 
occupy  the  same  street  or  track  for  more 
than  five  blocks,  the  grant  to  plaintiff  was 
void.  (Thornton,  J.,  dissenting.)  Omnibus 
R.  Co.  V.  Baldwin,  i  Am.  &*  Eng.  R.  Cas. 
316,  57  Cal.  160. 

The  city  of  New  Orleans  has  power  to 
grant  to  another  the  use  of  a  street  railway 
already  constructed.  Canal  &*  C.  St.  R.  Co. 
V.  Crescent  City  R.  Co.,  40  Am.  <S-  Eng.  R. 
Cas.  329,  41  La.  Ann.  561,  6  So.  Rep.  849. 

A  clause  in  a  city  ordinance  conferring 
the  power  on  a  second  company  to  use  a 
street  provided  "  that  ths  tracks  of  said 
company  shall  be  so  laid  as  not  to  injure  or 
destroy  any  tracks  now  laid  by  any  other 
corporation,  and  that  the  location  of  the 
route  of  said  railway  shall  not  in  any  man- 
ner interfere  with  any  unforfeited  rights  of 
way  heretofore  granted  by  the  municipal 
assembly  by  proper  ordinance."  Held,  that 
a  prior  company's  privilege  was  not  a  quali- 
fied right  of  way ;  and  that  the  second  com- 
pany could  lay  its  tracks  in  the  street  upon 
territory  not  occupied  by  the  prior  company, 
or  which  the  prior  company  had  not  the 
right  by  ordinance  to  occupy  when  it  de- 
sired to  do  so.  St.  Louis  Transfer  R.  Co.  v. 
St.  Louis  M.  B.  T.  R.Co.,  1 1 1  Mo.  666,  20 
S.  W.  Rep.  319. 

Mere  priority  of  a  grant  to  construct  a 
street  railway  will  not  giv  the  company  an 
exclusive  privilege  to  the  use  of  the  streets ; 
and  in  the  absence  of  an  exclusive  privilege. 


cither  in  the  grant  or  by  permission  from 
the  city,  none  will  be  implied.  And  one 
company  cannot  prevent  another,  by  laying 
its  track,  from  laying  another  track  in  the 
same  street.  If  the  laying  of  either  track 
obstructs  the  street  so  as  to  amount  to  a 
nuisance,  complaint  must  be  made  by  the 
public,  and  not  by  the  other  company. 
Brooklyn  City  &*  N.  R.  Co.  v.  Coney  Island 
<S-  B.  R.  Co.,  35  Barb.  (N.  V.)  364.— EX- 
PLAINING Brooklyn  C.  R.  Co.  v.  Brooklyn 
City  R.  Co.,  32  Barb.  (N.  Y.)  358.— Ap- 
proved IN  Hinchman  v.  Paterson  Horse 
R.  Co.,  17  N.  J.  Eq.  75. 

A  ciiy  has  the  right  to  designate  what 
particular  portion  of  its  streets  shall  be  oc- 
cupied by  a  street-railway  coiiipnny.  and  the 
grant  of  a  right  to  use  a  street  for  a  railway 
track  will  not  preclude  the  city  from  grant- 
ing a  like  privilege  over  the  same  street  to 
another  company,  unless  the  right  granted 
in  the  first  instance  cannot  be  made  availa- 
ble if  the  second  grant  is  exercised.  Ft, 
Worth  St.  R.  Co.  v.  Rosedale  St.  R.  Co.,  32 
Am.  &-  Eng.  R.  Cas.  283,  68  Tex.  169,  4  S. 
W.  Rep.  534. 

In  such  case,  if  the  first  grant  be  general, 
and  the  second  specifies  a  particular  portion 
of  the  street  on  which  the  track  may  be 
laid,  the  enjoyment  of  the  right  under  the 
specific  grant  will  be  protected  when,  in 
the  public  interest,  the  road  is  constructed 
under  it.  Ft.  Worth  St.  R.  Co.  v.  Rosedale 
St.  R.  Co.,';,  Aw.  &•  Eng.  R.  Cas.  283,  68 
Tex.  169,  4  .;     W.  Rep.  534. 

The  charter  of  a  street  railway  incorpo- 
rated under  the  general  law  can  confer,  in 
and  of  itself,  no  right  to  use  any  street,  no 
matter  what  may  be  its  provisions.  The 
right  to  use  particular  streets  must  be  ac- 
quired from  the  municipal  government.  Ft. 
Worth  St.  R.  Co.  v.  Rosedale  St.  R.  Co.,  32 
Am.  <3-  Eng.  R.  Cas.  283.  68  Tex.  169,  4  S. 
W.  Rep.  S34. 

A  franchise  or  privilege  extended  by  a 
city  to  a  company  to  construct  and  main- 
tain a  railway  along  its  streets  does  not  in- 
terfere with  the  power  of  the  city  authori- 
ties over  the  streets  nor  prevent  a  like  grant 
to  others.  Such  grant  is  not  a  monopoly. 
Mayor,  etc.,  of  Houston  v.  Houston  City  St, 
R.  Co.,  50  Am.  <S-  Efig.  R.  Cas.  380, 83  Tex. 
548,  195.   W.  Rep.  127. 

40.  Under  New  York  Act  of  1884. 
— New  York  Act  of  1884,  ch.  252,  providing 
for  the  construction  and  operation  of  street 
surface  railroads  in  cities,  does  not  prohibit 


1 


372 


STREET   RAILWAYS,  50-52. 


the  construction  of  such  a  road  upon  a  street 
where  another  company  claims  a  prior  fran- 
chise for  the  same  purpose,  but  has  not  yet 
constructed  any  part  of  its  road  ;  it  does  pro- 
liibit  the  laying  of  such  a  road  on  a  street 
where  a  like  one  has  already  been  built, 
unless  by  the  consent  of  the  owners  of  such 
road.  New  York  Cable  R.  Co.  v.  Chambers 
St.  <&*  G.  S.  F.  R.  Co.,  40  Htm  {IV.  Y.)  29. 

A  company  was  organized  under  the  act 
of  1875,  ch.  606,  providing  for  the  construc- 
tion and  operation  of  steam  railways,  and 
received  the  sanction  of  the  city  authorities 
to  lay  a  track  on  certain  streets,  but  had  not 
obtained  the  consent  of  property  owners,  as 
required  by  the  act,  at  the  time  of  the  pas- 
sage of  the  act  of  1884,  ch.  252,  providing 
for  the  construction  and  operation  of  street 
surface  railroads  in  cities,  neither  was  any 
portion  of  its  road  then  constructed.  It 
filed  a  bill  to  restrain  a  company,  organized 
under  the  act  of  1884,  from  laying  a  track  on 
the  same  street.  Held,  that  the  franchise 
granted  under  the  act  of  1875  was  not  ex- 
clusive, and  the  bill  could  not  be  maintained. 
New  York  Cable  R.  Co,  v.  Chambers  St.  Sf 
G.  S.  F.  R.  Co..  40  Hun  (N.  Y.)  29. 

50.  Biti^lit  of  city  to  determine 
trhen  new  lines  slionld  be  built.— A 
city  ordinance  granting  to  a  company  au- 
thority to  construct  one  or  more  lines  on 
either  of  certain  streets  designated,  but  re- 
serving to  the  city  council  the  right  to 
determine  when  any  furtlier  track  than  the 
one  selected  by  the  company  should  be  nec- 
essary, will  be  construed  to  mean  that  one 
or  more  lines  might  be  constructed  on  one 
only  of  the  streets  named,  to  be  determined 
by  the  selection  of  the  company,  not  that 
I'nes  might  be  constructed  on  all  the  streets, 
and  thecompany  will  be  limited  to  the  selec- 
tion made.  Ft.  Worth  St.  R.  Co.  v.  Rose- 
dale  St.  R.  Co.,  32  Am.  &*  Bug.  R.  Cas.  283, 
68  Tex.  169,  4  S.  IV.  Rep.  534. 

By  the  same  ordinance  it  was  provided 
that  the  city  council  should  notify  the  com- 
pany when  new  lines  were  desirable,  said 
notice  to  be  complied  with  within  a  fixed 
time,  and  the  council  passed  two  ordinances 
in  May  and  November,  1882,  allowing  the 
company  to  construct  lines  in  other  streets, 
to  be  completed  within  ninety  days  from  the 
date  of  the  ordinances,  which  the  company 
failed  to  do.  Held,  that  the  two  ordinances 
of  1882  were  sufficient  notices  that  the  city 
desired  a  line  to  be  placed  upon  the  streets 
mentioned  in  said  ordinances,  and  that  the 


company  lost  its  right  to  use  those  streets 
by  non-compliance  with  the  ordinances.  Ft. 
Worth  St.  R.  Co.  v.  Rosedale  St.  R.  Co.,  32 
Am.  6-  Etig.  R.  Cas.  283,  68  Tex.  169, 4  5. 
W.  Rep.  534. 

The  coir  pany  claimed  the  right  to  use  a 
certain  street  under  the  first  ordinance,  the 
right  to  use  the  centre  of  which  street  was 
granted  to  another  company  by  a  later  ordi- 
nance. Held,  that,  even  if  the  former  had 
a  general  right,  under  the  first  ordinance, 
to  use  such  street,  the  city  had  power  to 
permit  both  companies  to  construct  lines  on 
the  same  street  ;  but  that  the  express  grant 
t  J  the  latter  company  of  the  right  to  use  the 
centre  of  the  street  would  exclude  the  former 
from  using  that  particular  part  of  the  street. 
Ft.  Worth  St.  R.  Co.  v.  Rosedale  St.  R.  Co., 
32  Am.  &^  Eng.  R.  Cas.  283,  68  Tex.  169, 
4  S.  W.  Rep.  534. 

51.  Forfeiture  of  exclusive  grant. 
— A  municipal  ordinance  gave  to  a  street- 
railway  company  the  exclusive  right  to  lay 
its  tracks  in  such  streets  as  should  be  desig- 
nated by  tlie  council,  if  accepted  by  the  com- 
pany within  a  certain  time.  Held,  that  the 
company,  after  forfeiting  such  right  as  to 
specified  streets,  could  not  maintain  a  bill 
to  enjoin  another  company,  upon  which  the 
right  had  subsequently  been  conferred,  from 
laying  its  track  in  streets  not  so  designated 
to  complainant,  unless  it  could  show  actual 
injury  thereby  to  its  own  interests.  Grand 
Rapids  St.  R.  Co.  v.  West  Side  St,  R.  Co., 
7  Am.  &*  Eng.  R.  Cas.  95,  48  Mich.  433,  12 
N.  W.  Rep.  643. 

Where  a  city  contracts  with  certain  indi- 
viduals that  if  they  shall  incorporate  as  a 
street-car  company  it  will  grant  the  exclu- 
sive use  of  its  streets  for  street-car  pur- 
poses for  a  term  of  years,  and  the  charter  is 
obtained  with  a  provision  that  tracks  may 
be  laid  in  the  streets  "  with  the  consent  of 
the  said  city,"  a  failure  to  get  such  consent 
renders  the  former  grant  by  the  city  inoper- 
ative, and  the  street-car  company  cannot 
maintain  an  action  against  the  city  for 
breach  of  contract.  People's  Pass.  R.  Co.  v. 
Memphis,  (Tenn.)  16  S.  W.  Rep.  973.— AP- 
PROVING Memphis  City  R.  Co.  v.  Mayor, 
etc.,  of  Memphis,  4  Coldw.  (Tenn.)  406; 
People's  Pass.  R.  Co.  v.  Memphis  City  R. 
Co.,  10  Wall.  (U.  S.)  38. 

62.  First  road  building  acquires 
exclusive  use. — A  city  cannot  give  to  a 
street-railway  company  a  right  to  occupy 
all  its  streets  to  the  exclusion  of  all  other 


STREET   RAILWAYS,  63-56. 


373 


Pi 


companies,  so  preventing  itself  from  after- 
wards giving  similar  grants  tootlier  compa- 
nies. But  if  it  make  such  a  grant  and  then 
make  a  similar  grant  to  another  company, 
that  company  which  first  occupies  a  street, 
or  which  first  enters  upon  the  construction 
of  a  particular  line  of  street  railroads,  and 
has  expended  its  money  in  the  prosecution 
of  the  work,  is  entitled  lothe  possession  of 
such  street,  or  to  the  streets  over  which  such 
particular  line  passes,  although  the  effect  is 
that  such  company  thus  acquires  the  exclu- 
sive possession  of  such  street  or  streets. 
Indianapolis  Cable  St.  R.  Co.  v.  Citizens'  St. 
K.  Co.,  43  Am.  &*  Eng.  R.  Cas.  234,  1 27  Ind. 
369,  24  A^  E.  Rep.  1054,  26  N.  E.  Rep.  893. 

53.  Antlioriziiig^  second  road  with 
dilfereiit  motive  power. — The  exclu- 
sive right  to  construct  and  operate  a  horse 
railway  in  a  city  is  not  infringed  by  con- 
structing in  the  same  city  a  road  to  be 
operated  by  steam.  Denver  &*  S.  R.  Co.  v. 
Den7/er  City  R.  Co.,  2  Colo.  673,  20  Am.  Ry. 
Kep.  339. 

The  charter  of  a  street-car  company 
granted  the  power  to  operate  a  "  horse  rail- 
way," and  prohibited  the  running  of  loco- 
motives or  cars  propelled  by  steam,  or  the 
cars  of  any  other  railway  company,  on  its 
tracks.  Held:  (i)  that  the  term  "horse 
railway  "  could  not  be  used  as  the  equiva- 
lent of  "  street  railway,"  so  as  to  include  and 
prohibit  cable  railways,  which  were  not 
known  at  the  time ;  (2)  that  no  monopoly  of 
all  kinds  of  street  railways  except  cars  drawn 
by  engines  was  created.  Omaha  Horse  R, 
Co.  V.  Cable  Tramway  Co.,  30  Fed.  Rep.  324. 

An  exclusive  grant  for  a  term  of  years  of 
the  right  to  operate  street  railroads  by 
horse  power  in  a  city  does  not  prevent  the 
city,  during  the  term,  from  granting  to 
others  the  privilege  of  operating  cars  by 
electricity,  especially  where  cars  operated 
by  electricity  were  not  known  at  the  time 
of  the  grant.  The  mere  diminution  of  the 
revenues  of  the  company  is  not  such  an  im- 
pairment of  its  rights  as  to  prohibit  a 
further  grant.  Teachout  v.  Des  Moines 
Broad-Gange  St.  R.  Co.,  36  Am.  &*  Eng.  R, 
Cas.  108,  75  Imva  722,  38  N.   W.  Rep.  145. 

54.  Constitutional  proliibitions  of 
exclusive  pr'.vileges  not  applical>le 
to  municipal  grants.  —  The  constitu- 
tional prohibition,  in  art.  4,  §  22,  as  to  the 
grant  of  any  special  or  exclusive  privilege, 
immunity,  or  franchise,  is  a  limitation  upon 
the  general  assembly,  and  not  a  limitation 


upon  the  power  of  a  municipal  corporation 
to  designate  streets  and  fix  the  conditions 
upon  which  a  company  may  build  and 
operate  its  road.  Chicago  City  R.  Co.  v. 
People  ex  rel.,  73  ///.  541. 

Iowa  Const,  art.  8,  §  12,  which  declares 
that  "  no  exclusive  privileges,  except  as  in 
this  article  provided,  shall  ever  be  granted," 
does  not  apply  to  a  grant  by  a  city  of  the 
exclusive  right  to  build  and  operate  street 
railways.  Des  Moines  St.  R.  Co.  v.  Dei 
Moines  Broad-Gauge  St.  R,  Co.,  Am.  &- 
Eng.  R.  Cas.  209,  73  Iowa  513,  .  N.  IV. 
Rep.  610,  35  N.   IV.  Rep.  602. 

55.  Batiflcatiou  of  former  void  or- 
dinance.— A  city  in  Iowa  granted  the  ex- 
clusive right  to  build  and  operate  a  street 
railway  for  a  term,  before  the  passage  of 
section  464  of  the  Code,  giving  to  cities  the 
power  to  authorize  or  forbid  the  laying  of 
tracks  for  street  railways.  Held,  that  if  it 
be  admitted  that  the  city  had  not  the  power 
to  grant  such  an  exclusive  right,  it  had  a 
right  afterward  to  ratify  the  grant,  and  to 
make  it  exclusive  by  withholding  it  from 
otl  ers.  Des  Moines  St,  R.  Co.  v.  Des  Moines 
Broad-Gauge  St.  R.  Co.,  32  Am.  &•  Eng.  R. 
Cas.  209, 73  /owa  513,  33  N.  W.  Rep.  610,  35 
A^  W.  Rep.  602.— Distinguishing  Boston 
&  L.  R.  Corp.  V.  Salem  &  L.  R.  Co.,  2  Gray 
(Mass.)  I.  Explaining  Burlington  &  H. 
County  Ferry  Co.  v.  Davis,  48  Iowa  133. 
Quoting  Davis  v.  Mayor,  etc.,  of  N.  Y.,  14 
N.  Y.  506. 

56.  Impairing  obligation  of  con- 
tracts—Federal questions.*— A  bill  in 
equity  alleging  that  complainant  made  a 
valid  contract  with  a  city  by  which  it  was 
authorized  to  build  and  operate  its  railway 
on  all  the  streets  of  the  city ;  that  complain- 
ant has  expended  large  sums  of  money  in 
building  and  equipping  its  lines ;  that  it  has 
fully  performed  all  the  duties  and  obliga- 
tions imposed  upon  it  by  the  city  ordinances; 
that  the  city  provided  by  ordinance  that  it 
would  not  grant  to  any  other  person  or 
corporation  any  privilege  impairing  the 
rights  of  complainant;  that  the  common 
council  of  the  city  did  by  ordinance  contract 
with  defendant  railway  company  for  the 
construction  and  operation  of  lines  which 
would  substantially  destroy  the  franchises 
granted  to  complainant;  that  defendant 
company  cannot  build  and  operate  its  rail- 
way without  interfering  with  and  substan- 

*  See  also  ante,  26. 


11 


374 


STREET   RAILWAYS,  57-60. 


tially  destroying  complainant's  lines — ex- 
hibits a  cause  of  action  arising  under  the 
Constitution  of  the  United  States.  Citizens' 
St.  R.  Co.  V.  City  R.  Co.,  56  Am.  &*  Eng.  R. 
Cas.  415,  56  Fed.  Rep.  746. 

If  the  law  of  a  state,  or  a  municipal  grant 
under  state  authority,  is  a  valid  enactment, 
except  for  its  repugnancy  to  the  constitu- 
tional provision  prohibiting  a  state  from 
passing  any  law  impairing  the  obligation  of 
contracts,  such  repugnancy  presents  a  fed- 
eral question  and  gives  the  circuit  court 
jurisdiction,  notwithstanding  that  the  federal 
prohibitions  were  attempted  to  be  read  into 
the  state  statute  so  as  to  make  the  acts  of  the 
city  ultra  vires.  Citizens  St.  R.  Co.  v.  City 
R.  Co.,  16  Am.  &•  Eng.  R.  Cas.  415,  56  Fed. 
Rep.  746. 

Valid  city  ordinances  granting  to  a  com- 
pany the  right  to  build  and  operate  street- 
railway  lines,  and  providing  that  tlie  city 
shall  not  grant  to  any  other  person  or  cor- 
poration any  privilege  which  may  impair 
the  rights  of  the  company,  constitute  a  con- 
tract protected  in  the  Constitution  of  the 
United  States  by  the  section  forbidding 
states  to  make  any  law  impairing  the  ob- 
ligation of  contracts;  and  where  the  com- 
pany, relying  upon  the  good  faith  of  the 
city,  has  accepted  the  ordinances  and  ex- 
pended large  sums  of  money  upon  its  works, 
a  federal  court  has  jurisdiction  of  a  bill  in 
equity  to  prevent  the  city  from  granting  to 
another  corporation  the  right  to  build  and 
operate  lines  of  railway  interfering  with  the 
rights  granted  to  the  former  company. 
Citizens'  St.  R.  Co.  v.  City  R.  Co.,  56  Am.  &' 
Eng.  R.  Cas.  415,  56  Fed.  Rep.  746. 

57.  Bight  to  determine  where 
road  shall  he  built.— Where  a  city  is 
authorized  to  confer  the  exclusive  privilege 
of  the  use  of  its  streets  for  a  street  railway, 
the  exclusive  right  to  the  use  of  the  streets 
attaches  only  when  the  use  begins ;  it  is  the 
duty  of  the  city  to  determine  when  and  on 
what  streets  the  road  is  to  be  built,  and  it 
has  no  power  to  devolve  that  duty  on  the 
company  or  its  contractor.  Citizens'  St.  R. 
Co.  V.  Jones,  34  Fed.  Rep.  579. 

4.   Under  Right  of  Eminent  Domain. 

68.  Nature  and  extent  of  interest 
acquired.— The  right  of  a  corporation  to 
condemn  property  for  a  horse  or  dummy 
railway  in  streets  is  derived  from  the  state 
law,  and  the  consent  of  the  city  is  not  a 
condition  precedent  to  proceedings  to  con- 


demn. Metropolitan  City  R.  Co,  v.  Chicago 
W.  D.  R,  Co.,S7  III.  317,  \^Am.  Ry.  Rep. 64. 

A  company  acquires  no  estate  or  interest 
in  the  land  itself,  but  the  mere  right  to  the 
use  of  the  highway  or  public  easement. 
Hinchman  v.  Paterson  liorse  R.  Co.,  17  N. 
J.  Eg.  75.— Approving  Williams  v.  New 
York  C.  R.  Co.,  18  Barb.  (N.  Y.)  222;  Case 
of  Philadelphia  &  T.  R.  Co.,  6  Whart.  (Pa.) 
25 ;  Com.  V.  Erie  &  N.  E.  R.  Co.,  27  Pa.  St. 
354;  Elliott  V.  Fair  Haven  &  W.  R.  Co.. 
32  Conn.  579 ;  People  v.  Kerr,  37  Barb.  357 ; 
Brooklyn  C.  &  J.  R.  Co.  7/.  Brooklyn  City  R. 
Co.,  33  Barb.  420;  Brooklyn  City  &  N.  R. 
Co.  V.  Coney  Island  &  B.  R.  Co..  35  Barb. 
364.  Following  Morris  &  E  1.  Co.  v. 
Newark,  10  N.  J.  Eq.  358. 

The  state,  in  the  exercise  of  the  right  of 
eminent  domain,  or  a  street-railway  com- 
pany to  whom  it  has  delegated  the  right,  is 
not  bound  to  take  the  entire  estate,  and, 
strictly,  should  only  take  such  an  interest 
as  is  necessary  to  be  acquired  to  accomplish 
the  public  purpose  in  view.  Sixth  Ave.  R, 
Co.  V.  Kerr,  72  A';  Y.  330. 

59.  What  is  "  property  "  that  may 
be  taken. — Where  a  company  has,  by  con- 
tract with  a  city, acquired  aright  to  exclude 
a  similar  railway  on  certain  other  streets 
running  parallel  with  its  road,  this  is  "  prop- 
erty," and  not  a  franchise,  in  the  sense  of 
the  Eminent  Domain  Act,  and  may  be  con- 
demned for  the  use  of  a  new  company, 
where  the  public  necessity  so  requires. 
Metropolitan  City  R.  Co.  v.  Chicago  IV.  D. 
R.  Co.,  ^7111.117, 19  Am.  ^j/. /?/!•/.  64.— Dis- 
tinguishing Central  City  Horse  R.  Co.  v. 
Ft.  Clark  Horse  R.  Co.,  81  III.  523  ;  Peoria, 
P.  &  J.  R.  Co.  V.  Peoria  &  S.  R.  Co.,  66  111. 
174.— Quoted  in  Chicago  &  W.  I.  R.  Co. 
V.  Dunbar,  5  Am.  &  Eng.  R.  Cas.  253,  100 
III.  no. 

GO.  Power  to  take  private  prop- 
erty.*—Under  N.Y.  Street  Railroad  Act  of 
1884,  ch.  252,  §  3,  giving  to  a  corporation 
organized  under  it  the  right  to  construct  its 
road  "  through,  along,  and  upon  any  private 
property  which  said  company  may  acquire 
for  the  purpose,"  and  giving  it  the  powers 
and  privileges  granted  to  corporations  or- 
ganized under  the  General  Railroad  Act, 
conceding  that  a  street-railroad  corpora- 
tion has  power  to  condemn  lands  of  a  pri- 

*  Condemnation  of  land  for  street  railways. 
Power  to  condemn  for  a  line  which  does  not  run 
on   streets,  see  46  Am.  &  Eng.  R.  Cas.  165, 

abstr. 


STREET   RAILWAYS,  61-63. 


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vate  owner  in  some  cases  and  for  some 
purposes,  as  to  which  quare,  the  purposes 
are  those,  and  those  only,  which  the  law  of 
its  organization  describes  and  defines,  and 
which  are  certified  to  in  its  articles  of  asso- 
ciation; those  purposes  are  limited  to  the 
cop"^  ruction  of  a  street  surface  railroad. 
In  xe  South  Beach  N.  Co.,  i\g  N.  K.  141,  23 
A'.  E.  Rep.  486.  28  N.  Y.  S.  R.  942 ;  affirm- 
ing 25  A^.  Y.  S.  R.  328, 

Wliere  the  articles  of  association  of  a  cor- 
poration organized  under  the  above  act 
state  its  purpose  to  be  to  construct  and  op- 
erate a  street  surface  railroad  through  cer- 
tain specified  avenues  in  a  village,  and  the 
corporation  subsequently  files  a  map  of  its 
intended  route,  which  is  not  along  the 
specified  streets,  but  upon  private  property 
outside  of  the  streets  for  nearly  the  whole 
distance,  the  corporation  has  no  right  to 
condemn  the  lands  upon  which  the  pro- 
posed route  is  located,  as  thcv  are  not  re- 
quired for  the  purposes  of  its  incorj>oration. 
Wliile  a  right  to  change  the  specified  route 
might  exist,  this  doo.5  not  authorize  a 
change  which  involves  not  only  a  contra- 
diction and  violation  of  the  articles  of 
association,  bat  .li'o  of  the  character  and 
quality  of  the  corporation.  In  re  South 
Beach  R.  Co.,  119  A^.  Y.  141.  23  A'.  E.  Rep. 
486,  28  A^.  Y.  S.  R.  942 ;  affirming  25  A^.  Y. 
S.  R.  328. 

61. under  New  York   Act   of 

1884. — A  company  organized  under  N.  Y. 
Act  of  May  6, 1884.  authorizing  the  construc- 
tion of  street  surface  railroads,  and  requiring 
the  consent  of  local  authorities  to  be  ob- 
tained, and  of  a  certain  portion  of  the  abut- 
ting owners,  or  in  default  of  the  last,  the 
certificate  of  chosen  commissioners,  and 
after  certifying  its  object  to  be  the  construc- 
tion of  a  road  upon  certain  designated 
streets,  cannot  depart  from  such  streets  and 
condemn  private  lands  for  the  purposes  of 
its  regular  track.  In  re  South  Beach  R.  Co., 
53  Hun  131,  26  A^.  Y.  S.  R.  649,  6  A^.  Y. 
Supp.  172;  affirmed  in  119  A^.  Y.  141,  28  A'. 
Y.  S.  R.  942,  23  A^.  E.  Rep.  486. 

62.  Bight  of  abutting  owners  to 
compensation.— The  construction  of  a 
surface  street  railroad  in  a  public  street, 
with  the  consent  of  the  legislature,  and  for 
the  carriage  of  passengers,  the  cars  to  be 
drawn  by  horses,  is  not  such  an  infringe- 
ment upon  the  property  rights  of  an  abut- 
ting landowner,  who  has  no  title  to  the  bed 
of  the  street,  as  to  entitle  him  to  compen- 


sation under  the  provision  of  the  Constitu- 
tion that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation. 
Clark  v.  Rochester  City&'S.R.  Co.,  \%N.  Y. 
S.  R.  903,  50  Nun  600,  2  A^.  Y.  Supp.  563.— 
Following  People  v.  Kerr,  27  N.  Y.  188; 
Kellinger  v.  Forty-second  St.  &  G.  S.  F.  R. 
Co.,  so  N.  Y.  206 ;  Story  v.  New  York  El.  R. 
Co.,  90  N.  Y.  122  ;  Mahady  v.  Bush  wick  R. 
Co.,  91  N.  Y.  148. 

And  there  is  no  substantial  difTerence  be- 
tween the  cases  in  which  the  legal  title  to 
the  bed  of  the  street  is  in  private  individu- 
als and  those  in  which  it  is  in  the  public  as 
to  the  rights  of  the  public  therein,  and  in 
either  case  the  street  is  to  be  deemed  open 
and  free  for  public  passage,  and  may  be  used 
for  the  operation  'of  a  street  surface  rail- 
road. C/arh  V.  Rochester  City  &*  B.  R.  Co., 
18  A^.  Y.  S.  R.  903,  50  Hun  600,  2  N.  Y. 
Supp.  563. 

63.  Right  to  appointment  of  com- 
missioners, under  N.  Y.  statutes,  to 
determine  as  to  construction  of  part 
of  road. — Under  the  provision  of  N.  Y. 
Laws  1884,  ch.  252,  §  4,  that  in  case  the  con- 
sent of  abutting  property  owners  to  the 
construction  of  a  surface  road  cannot  be 
obtained,  the  company  may  obtain  the  ap- 
pointment of  commissioners  to  determine 
whether  the  road  ought  to  be  constructed,  the 
company  has  the  right  to  make  successive 
applications  for  the  appointment  of  com- 
missioners to  determine  as  to  the  construc- 
tion of  different  parts  of  the  road,  and  is  not 
confined  to  one  application  embracing  the 
whole  route.  In  re  People's  R.  Co.,  38  Am. 
&*  Eng.  R.  Cas.  404, 1 12  A^.  Y.  578,  20  N.  E. 
Rep.  367,  21  A^.  Y.  S.  ^.496;  affirming  i,^ 
Hun  617,  >««;/.  — Distinguished  in  Re 
Saratoga  Elec.  R.  Co..  58  Hun  287,  34  N.  Y. 
S.  R.  556,  12  N.  Y.  Supp.  318;  In  re  Cross- 
Town  St.  R.  Co..  52  N.  Y.  S.  R.  295. 

If  the  application  relate  to  but  one  ttreet, 
or  to  any  number  of  streets  less  than  th« 
total  contained  in  the  article  of  association, 
those  only  are  proper  parties  to  the  proceed- 
ings who  are  interested  in  the  property 
along  the  streets  in  regard  to  which  the 
petition  is  presented ;  and  no  determination 
made  by  such  commissioners  can  bind,  or  in 
any  manner  aflfect,  other  property  owners 
along  other  streets  not  mentioned  in  the 
petition.  In  re  People's  R.  Co.,  38  Am.  6* 
Eng.  R.  Cas.  404,  112  A'.  Y.  578,  20  A';  E. 
Rep.  367,  21  A^.  K.  S.  R,  496;  affirming  t,^ 
1 1  nil  617,  mem. 


876 


STREET    RAILWAYS,  64,65. 


■  Is? 


■    fe; 


N.  Y.  Act  of  1890,  ch,  565,  provides  that 
a  street-railway  corporalion  failing  to  obtain 
the  consents  of  a  majority  of  the  property 
owners  may  apply  to  a  general  tern>  of  the 
supreme  court  "  for  the  appi  )intinent  of  three 
commissioners  to  determine  whether  such 
railroad  ought  to  be  constructed  and  oper- 
ated." Held,  that  this  contemplates  the 
road  as  a  whole,  and  the  company  has  no 
right  to  divide  up  its  road  and  ask  for  com- 
missioners as  to  a  part  of  it.  In  re  Cross- 
Town  5V.  /i.  Co..  52  A^.  y.  S.  R.  295,  22  A'.  Y. 
Stipp.  818. 

An  application  for  commissioners  under 
the  above  statute  should  not  be  granted 
where  it  does  not  appc^ar  that  the  company 
has  made  an  effort,  and  has  failed,  to  pro- 
cure the  requisite  consents  of  the  prop- 
erty owners  for  the  entire  distance  of  the 
proposed  road,  or  that  it  has  procured  the 
consent  of  the  city  authorities  to  a  change 
of  route.  In  re  Cross-  Town  St.  R.  Co.,  52 
A^.  Y.  S.  R.  29s,  22  A',  y.  Supp.  818.— Dis- 
tinguishing In  re  People's  R.  Co.,  112  N. 
Y.  578.  21  N.  Y.  S.  R.  496. 

64.  Procedure  on  coining  In  of 
coniinis^ioners'  report.— N.  Y.  Act  of 
1884,  ch.  252,  provides  for  the  appointment 
of  commissioners  who  shall  determine 
whether  a  street  railroad  ought  to  be  con- 
structed. Section  6  provides  that  the  com- 
missioners shall  determine,  after  a  public 
hearing  of  all  the  parties,  whether  the  road 
ought  to  be  constructed  and  operated,  and 
shall  make  a  report,  together  with  the  evi- 
dence taken,  to  the  general  term,  whether 
the  road  ought  to  be  constructed,  which, 
when  confirmed  by  the  court,  shall  be  taken 
in  lieu  of  the  consent  of  the  property  own- 
ers. Held,  that  this  requires  no  action  by 
the  court,  except  to  confirm  or  refuse  to  con- 
firm a  favorable  report.  Where  the  report  is 
unfavorable,  there  is  nothing  for  the  court 
to  act  upon.  In  re  Nassau  Cable  Co.,  36 
Hun  (N.   Y.)  272,  2  How.  Pr.  N.  S.  134. 

Such  commissioners  do  not  constitute  a 
judicial  tribunal,  bound  to  proceed  accord- 
ing to  technical  rules  in  hearing  the  parties, 
but  they  are  a  tribunal  like  a  legislative 
committee,  not  bound  to  regard  the  rules  of 
evidence  strictly.  They  may  take  into 
consideration  all  matters  material  to  deter- 
mine whether  the  road  ought  to  be  con- 
structed ;  may  view  the  matter  with  their 
own  eyes,  and  exercise  their  own  judgment ; 
but  they  must  give  the  parties  interested  an 
opportunity  to  be  heard,  ms  provided  by  the 


statute,  and  conduct  the  proceedings  In  a 
regular  and  orderly  manner.  In  re  Nassau 
Cable  Co.,  36  Hun  (N.  Y.)  272,  2  How.  Pr. 
N.  S.  124. 

The  court  has  the  implied  power,  in  con- 
firming the  report,  to  determine  whether 
the  commissioners  have  performed  their 
duty  under  the  statute;  and  if  it  appear 
that  they  have  refused  to  hear  the  parties, 
or  to  take  evidence,  or  tlie  report  is  such  as 
plainly  to  show  fraud  or  irregularity,  then 
the  report  may  be  sent  back  or  referred  to 
new  commissioners  ;  but  an  error  in  exclud- 
ing testimony,  or  in  admitting  immaterial  or 
incompetent  evidence,  is  n(it  sufficient  to 
warrant  sending  a  case  back  for  another 
hearing.  In  re  Nassau  Cable  Co.,  36  Hun 
(A'.  Y.)  272,  2  Ho7v.  Pr.  N.  S.  124. 

65.  Locating  road  on  highway — 
Consent  of  liigliway  commissioners 
necessary. — Although  a  turnpike  corpo- 
ration has  acquired  a  right  to  the  use  and 
control  of  a  town  highway  for  its  purposes, 
there  still  remains  in  the  highway  commis- 
sioners a  generiil  control  over  it  as  a  high- 
way, and  they  have  a  duty  to  perform 
towards  the  public  in  connection  with  its 
proper  maintenance  as  such.  Where,  there- 
fore, a  turnpike  company  has  acquired  from 
adjoining  landowners  the  right  to  a  strip 
of  land  on  each  side  of  the  highway  for  a 
bridle  path,  and  has  given  consent  to  a 
company  organized  under  N.  Y.  Act  of 
1884  to  use  a  portion  of  said  bridle  path  for 
its  railroad,  this  is  not  the  consent  required 
by  the  act.  it  has  no  effect  except  as  to  the 
rights  and  interests  of  the  turnpike  com- 
pany;  and  the  highway  has  not  ceased  to 
be  such  because  used  as  a  turnpike,  and  the 
administrative  duty  of  the  highway  com- 
missioners of  the  town  remains  unimpaired, 
so  far  as  its  exercise  is  required  for  the 
preservation  of  the  rights  and  interests  of 
the  public;  and  their  consent  is  requisite. 
In  re  Rochester  Elec.  R.  Co.,  46  Am.  &*  Eng. 
R.  Cas.  157,  123  N.  K  351,  25  N.E.Rep. 
381,  33  A'.  Y.  S.  R.  695  ;  affirming  57  Hun 
56.  32  A^.  Y.  S.  R.  i.toN.  Y.  Supp.  379, 

In  such  proceedings  to  acquire  title  to 
lands  outside  of  the  bridle  path  for  the  pur- 
poses of  its  road,  the  consent  of  the  highway 
commissioners  to  the  construction  of  the 
road  is  an  essential  prerequisite,  as  the 
right  of  the  petitioner  to  exercise  the  fran- 
chise of  constructing  and  operating  its  road 
upon  the  highway  does  not  become  a  vested 
right  until  the  consent  is  obtained ;  and 


STREET   RAILWAYS,  06-08. 


377 


!,'■  ':■! 


< 


this  not  having  been  obtained,  the  petitioner 
cannot  maintain  the  proceedings.  In  re 
Rochester  Elec.  R.  Co,,  46  Am.  &•  Eng.  R. 
Cas.  157,  123  N.  V.  3Sr,  25  A'.  E.  Rep.  381, 
33  A^.   V.  S.  R.  69s ;  affirming  57  Hun  56, 

32  A^.  Y.  S.  R.  \,  10  N.  V.  Stipp.  379-— 
Distinguishing  In  re  New  York  C.  &  H. 
R.  R.  Co.,  77  N.  Y.  248.  Reviewhjg  In  re 
Thirty-fourth  St.  R.  Co.,  102  N.  Y.  343; 
In  re  Kings  County  El.  R.  Co.,  105  N.  Y.  97. 

In  1887  the  petitioner  filed  a  map  and 
protiie  indicating  its  proposed  route  upon 
the  bridle-path  portion  of  the  highway. 
The  present  i)roceedings  were  instituted  in 
1889.  The  petition  alleged  the  making  and 
filing  of  a  map  and  survey ;  it  made  no 
mention  of  the  road  as  previously  built, 
nor  of  the  previous  proceedings.  It  ap- 
peared that  no  map  except  the  original 
one  was  ever  filed,  and  no  map  was  ever 
made  and  filed  of  the  route  in  connec- 
tion with  which  this  proceeding  was  sought 
to  be  maintained,  ffe/ti,  that  as  said  act 
requires  the  proceeding  to  be  in  accordance 
with  the  requirements  of  the  General  Rail- 
road Act  of  1850,  ch.  140,  and  as  that  act 
requires  the  petitioner  to  allege  that  it  has 
made  a  map  or  survey  designating  its  line 
or  route,  and  has  located  its  road  in  accord- 
ance therewith  (section  22),  proof  of  compli- 
ance with  this  provision  was  an  essential 
prerequisite,  and  to  meet  this  requirement 
the  map  filed  upon  the  previous  proceeding 
was  not  sufficient ;  that  to  give  validity  and 
force  to  said  proceeding  it  was  essential 
that  all  the  steps  pointed  out  by  the  general 
statute  should  be  strictly  followed.  /»  re 
Rochester  E/ec.  R.  Co.,  46  Am.  &*  Eng.  R. 
Cas.  157,  123  N.  v.  351,  25  N.  E.  Rep.  381, 

33  N,  V.  S.  R.  695 ;  affirmnig  57  Hun  56. 
32  N.  Y.  S.  R.  I.  loN.  Y.  Supp.  379. 

Under  New  York  Street  Surface  Railway 
Act  of  1884,  ch.  252,  §  3,  authorizing  com- 
panies organized  under  it  to  acquire  a  right 
of  way  through  streets  or  highways,  pro- 
vided that  "the  consent  of  the  local  au- 
thorities having  control  of  that  portion  of  a 
street  or  lughway  upon  which  it  is  proposed 
to  construct  and  operate  such  railroad  *  *  * 
be  first  obtained,"  where  the  railroad  is 
proposed  to  be  constructed  upon  a  highway 
in  a  town,  the  "  local  authorities  "  whose 
consent  is  required  are  the  officers  whose 
duties  and  powers  relate  to  the  supervision, 
care,  and  maintenance  of  the  highway,  i.  e., 
the  highway  commissioners  of  the  town.  In 
re  Rochester  Elec.  R.  Co.,  46  Am.  &^  Eng. 


R.  Cas.  157,  123  A^.  r.  351,  25  N.E.Rep. 
381,  33  A'^,  Y.  S.  R.  695  ;  affirming  57  Hun 
56,  32  A^.  Y.S.R.\,\o  N.  Y.  Supp.  379. 

00.  CoustitutioualityofNewYork 
Act  uf  1800.— N.  Y.  Act  of  i860,  ch.  513, 
allowing  the  Seventh  Avenue  railroad  com- 
pany in  New  York  city  to  "  run  upon,  inter- 
sect, and  use"  any  poicion  of  other  railroad 
tracks,  upon  making  full  compensation 
therefor,  is  constitutional.  Sixth  Ave.  R. 
Co.  V.  Kerr,  72  N.  Y.  330.— Applied  in 
People  V.  O'Brien,  36  Am.  &  2ng.  R.  Cas. 
78,  III  N.  Y.  I,  i8  N.  E.  Rep.  692,  19  N.  Y. 
S.  R.  173. 

It  is  competent  for  the  legislature  to 
authorize  one  street-car  company  to  use  the 
tracks  of  another  company,  upon  making 
compensation  therefor,  whenever  in  the 
judgment  of  the  legislature  the  public  good 
requires  it.  Sixth  Ave.  R.  Co.  v.  Kerr,  72 
A^.  Y.  330. 

II.  CONSTBUCTION  OF  CHASTEB8. 

07.  Geuerally.— The  right  and  privi- 
lege to  construct  and  operate  a  horse  rail- 
road in  the  streets  of  a  city  for  the  purpose 
of  carrying  passengers  for  hire  is  property, 
if  such  road  is  constructed  and  completed 
in  accordance  with  the  terms  imposed. 
Citizens'  Horse  R.  Co.  v.  Belleville,  47  ///. 
App.  388. 

Individuals,  like  corporations,  can  manage 
street  railways,  ferries,  turnpikes,  or  bridges, 
the  franchises  of  which  may  nevertheless  be 
perpetuated.  McKee  v.  Grand  Rapids  &• 
R.  L.  St.  R.  Co.,  41  Mich.  274. 

A  company  incorporated  under  a  general 
statute  has  no  powers  other  than  those  con- 
ferred by  the  statute  :  and  tfie  charter  of  a 
company  so  incorporated  cannot,  in  itself, 
grant  the  right  to  use  any  city  street ;  such 
right  must  be  granted  by  the  municipal 
government.  Ft.  IVorth  St.  R.  Co.  v.  Rose- 
dale  St.  R.  Co.,  32  Am.  &>  Eng.  R.  Cas.  283, 
68  Tex.  169,  4  S.  W.  Rep.  534. 

08.  Coustitiitiouality  of  acts.— Cal. 
Act  of  April  I,  1874,  §  17,  attempted  to  ex- 
empt two  specially  named  street  railroads 
from  conditions  imposed  upon  street  rail- 
roads in  general  by  the  General  Street  Rail- 
road Act  of  March  29,  1870,  afterwards  sub- 
stantially adopted  into  the  Civil  Code ;  it 
therefore  attempted  to  prevent  the  uniform 
operation  of  the  general  law,  and  was  con- 
sequently unconstitutional  and  void.  Om- 
nibus R.  Co.  V.  Baldwin,  i  Am.  &•  Eng.  R. 
Cas.   316,  57  Gil.  160. —  Distinguishing 


378 


STREET   RAILWAYS,  69-72. 


1^ 


California  State  Tel.  Co.  v.  Alta  Tel.  Co.. 
22  Cal.  398.  Foi.LOWiNO  San  Francisco  7f. 
Spring  Valley  Water  Worlds,  48  Cal.  493; 
Waterloo  Turnpike  Co.  v.  Cole,  51  Cal.  381. 
A  supplementary  act  whose  object  is  to 
confer  additional  privileges  upon  a  corpo- 
ration under  the  name  mentioned  in  the 
title  to  the  supplement  is  constitutional,  as 
there  is  no  necessity  of  referring  in  the  title 
to  all  the  powers  given  by  the  supplement. 
Paterson  R.  Co.  v.  Grundy,  56  Am.  &*  Eng. 
R.  Cas.  486.  5 1  N.  J.  Eq.  2 1 3,  26  Atl.  Rep.  788. 
A  statute  which  requires  a  company  to 
pay  to  the  city  annually  a  percentage  of  its 
gross  earnings  in  lieu  of  a  fee  for  each  car 
used  by  it,  as  required  by  its  charter,  is  to  be 
deemed  an  amendment  of  the  charter  in 
that  respect,  and  is  valid  under  constitu- 
tional and  statutory  provisions  reserving 
the  right  to  alter,  suspend,  or  repeal  the 
charter.  Mayor,  etc.,  of  N.  Y.  v.  Twenty- 
third  St.  R.  Co.,  41  Am.  6-  Eng.  R.  Cas.  640, 
113  N.  V.  311,  21  A^.  E.  Rep.  60,  22  A^.  Y. 
S.  R.  958;  affirming  48  Hun  552,  16  A^.  Y. 
S.  R.  137,  I  A^.  Y.  Supp.  295. 

An  act  of  incorporation  authorized  a 
company  to  lay  tracks  in  a  number  of  streets 
designated.  Another  act  was  passed,  en- 
titled "A  supplement  [to  the  first  act]  au- 
thorizing the  company  to  declare  dividends 
quarterly,  and  to  lay  additional  tracks." 
Held,  that  under  the  clause  in  the  Constitu- 
tion prohibiting  laws  "  containing  more 
than  one  subject,  which  shall  be  clearly 
expressed  in  the  title,"  a  provision  author- 
izing it  to  lay  tracks  in  streets  not  author- 
ized by  the  original  act  was  unconstitutional. 
Union  Pass.  R.  Co.'s  Appeal,  Si*  Pa.  St.  gi. 
Pa.  Act  of 'March  19,  1879,  for  the  incor- 
poration of  street  railways  in  cities  of  the 
second  and  third  classes,  being  special  and 
local,  is  in  violation  of  section  7,  art.  3,  of 
the  Constitution.  Weinman  v.  Wilkinsburg 
Sr*  E.  L.  Pass.  R.  Co.,  118  Pa.  St.  192,  11 
Cent.  Rep.  54,  12  Atl.  Rep.  288,  20  W.  N.  C. 
455.— Distinguished  in  Reeves  v.  Phila- 
delphia Traction  Co.,  152  Pa.  St.  153. 

An  act  entitled  "  An  act  to  incorporate 
the  Lawrenceville  &  Evergreen  Passenger 
railway  company  "  is  sufficient  to  authorize 
the  passage  thereunder,  prior  to  the  Consti- 
tution of  1874,  of  an  act  granting  a  special 
charter  for  a  steam  railroad.  Millvale  v. 
Evergreen  R.  Co.,  46  Am.  &*  Eng.  R.  Cas, 
219,  131  Pa.  St.  I,  18  Atl.  Rep.  993. 

An  act  entitled  "  A  supplement  to  an  act 
to  incorporate  the  Lawrenceville  &  Ever- 


green Passenger  railway  company,  approved 
May  13,  1871,"  which  authorizes  such  com- 
pany to  extend  its  road,  and  gives  it  certain 
additional  powers,  is  not  unconstitutional 
by  reason  of  its  title.  Millvale  v.  Evergreen 
R.  Co.,  46  Am.  (S-  Eng.  R.  Cas.  219,  131  Pa. 
5/.  I,  18  Atl.  Rep.  993. 

00.  When  franchise  void.— When  an 
application  for  a  franchise  is  referred  to  a 
committee  of  two,  and  upon  their  favorable 
report  the  franchise  is  granted,  the  fact  that 
one  of  the  committee  is  a  subscriber  to  the 
stock  of  the  company  renders  the  franchise 
void.  Finch  v.  Riverside  &*  A.  R.  Co.,  46 
Am.  &-  Eng.  R.  Cas.  107,  87  Cal.  597,  25 
Pac.  Rep.  765,— Following  San  Diego  v. 
San  Diego  &  L.  A.  R.  Co.,  44  Cal.  106. 

It  makes  no  difference  that  the  corpora- 
tion for  whose  benefit  the  franchise  was 
granted  was  not  yet  formed  ;  it  is  sufficient 
tliat  the  franchise  was  granted  to  a  com- 
mittee of  subscribers  for  the  benefit  of  the 
corporation.  Finch  v.  Riverside  &>•  A,  R. 
Co.,  46  Am.  Sf  Ettg.  R.  Cas,  107,  87  Cal.  597, 
25  Pac.  Rep.  765. 

70.  Gauge  of  traclc.  —  A  street-rail- 
way company  was  chartered  with  power  to 
construct  a  road  with  a  fixed  gauge.  After- 
wards its  property  and  franchises  were  sold, 
and  an  act  passed  providing  for  a  new  com- 
pany under  the  charter,  but  with  "all  the 
rights,  powers,  liberties,  privileges,  fran- 
chises, and  immunities  "granted  by  the  Gen- 
eral Railroad  Law,  which  left  the  gauge  of 
railroads  to  the  discretion  of  directors. 
Held,  that  this  conferred  the  right  on  the 
new  company  to  construct  a  road  of  a  dif- 
ferent gauge  from  that  fixed  in  the  original 
charter.  Com.  v.  Central  Pass.  R.  Co.,  52 
Pa.  St.  506. 

71.  Rate  of  speed.  —  A  franchise  to 
construct,  maintain  and  use  a  horse  rail- 
road over  a  highway  authorizes  the  grant- 
ees to  drive  their  cars  upon  their  track  at 
the  rate  of  speed  used  for  vehicles  drawn 
by  horses  for  the  carriage  of  passengers,  so 
far  as  this  righ^  can  be  enjoyed  without 
preventing  other  vehicles  on  the  highway 
from  moving  at  their  usual  rite  of  speed. 
Com.  V.  Temple,  14  Gray  {Mass.)  69. — 
Quoted  in  State  v.  Foley,  31  Iowa  527; 
Metropolitan  R.  Co.  v.  Highland  St.  R.  Co., 
118  Mass.  290. 

72.  Bight  to  construct  extensions 
or  brandies.  —  Under  Pa.  Act  of  March 
22,  1865  (P.  L.  568),  authorizing  the  Citi- 
zens' Passenger  railway  company  to  extend 


STREET   RAILWAYS,  73,  74. 


379 


its  road  northwardly  on  Tenth  and  Eleventh 
streets  in  Philadelphia,  "between  Mont- 
gomery street  and  the  Germantown  road, 
with  the  right  to  connect  the  same  on  any 
street  between  those  two  points,"  said  com- 
pany has  no  right,  even  with  tlie  consent  of 
councils,  to  construct  or  operate  an  exten- 
sion of  its  railway  on  Germantown  road  or 
avenue.  Philadelphia  v.  Citizens'  Pass.  R. 
Co.,  151  Pa.  St.  128,  24  Atl.  Pep.  1099. 
Germantinvn  Pass.  P.  Co.  v.  Citizens'  Pass, 
P.  Co.,  151  Pa.  St.  138.  24  Atl.  Pep.  1103. 

A  company,  chartered  in  1863,  was  author- 
ized "  to  lay  out  and  construct  a  railway, 
commencing  at  Third  and  Market  streets, 
in  the  borough  of  Williamsport,  and  con- 
tinuing westwardly  along  Third  street,  or 
any  other  street  in  said  borough,  to  the  vil- 
lage of  Newberry  in  said  county,  and  east- 
wardly  through  said  Third  street  or  streets 
in  said  borough,  as  may  be  deemed  advis- 
able by  said  company,  to  and  through  the 
borough  r>f  Montoursville,  with  the  right  to 
construct  branches  to  the  main  track  of  said 
passenger  railway  through  any  of  the  said 
streets  of  this  borough  of  Williamsport, 
with  single  or  double  tracks."  Held:  (i) 
that  the  company  had  no  right  to  occupy 
streets  running  north  and  south,  but  was 
limited  to  the  use  of  streets  running  east 
and  west ;  (2)  that  the  right  to  construct 
branches  conferred  no  power  of  indefinite 
location,  without  limit  in  duration  of  time, 
but  only  the  right  to  select  and  occupy 
streets  with  branches  within  a  reasonable 
time  ;  (3)  that  after  the  expiration  of  twenty- 
eight  years,  and  after  the  village  had  grown 
to  a  city,  the  right  to  construct  branches 
was  exhausted.  Junction  Pass.  P.  Co.  v. 
Williamsport  Pass.  P.  Co.,  154  Pa.  St.  116, 
26  Atl.  Pep.  295.— Distinguishing  Will- 
iamsport Pass.  R.  Co,  V.  Williamsport,  120 
Pa.  St.  I.  Reviewing  Mayor,  etc., of  Alle- 
gheny V.  Ohio  &  P.  R.  Co.,  26  Pa.  St.  358 ; 
Com.  V.  Erie  &  N.  E.  R.  Co.,  27  Pa. St.  339. 

Pa.  Act  of  April  21,  1858,  incorporating 
the  Germantown  Passenger  railway  com- 
pany, and  authorizing  it  to  construct  such 
branches  as  may  be  necessary  to  connect  it 
with  any  other  railway  within  the  city  of 
Philadelphia,  refers  only  to  railways  then 
in  existence.  People's  Pass.  P.  Co.  v.  Mar- 
shall St.  P.  Co.,  20  Phila.  (Pa.)  203.— QUOT- 
ING North  Branch  Pass.  R.  Co.  v.  City  Pass. 
R.  Co.,  38  Pa.  St.  361.  Reviewing  Com. 
V.  Central  Pass.  R.  Co.,  52  Pa.  St.  521 ; 
Com.  V.  Erie  &  N.  E.  R.  Co.,  27  Pa.  St.  339. 


Even  if  it  were  otherwise,  the  corporation 
would  not  be  permitted  to  prevent  the  con- 
struction of  a  railway  by  another  company 
over  certain  streets  for  the  mere  reason  that 
the  city  had  given  to  the  Germantown  com- 
pany its  consent  to  the  building  of  such  a 
connection,  no  work  of  any  kind  having 
been  done  upon  it.  If  the  company  docs 
not  promptly  make  use  of  its  right  to  build 
the  road,  it  cannot  be  allowed  to  prohibit 
others  from  obtaining  and  exercising  such 
a  right.  People's  Pass.  P.  Co.  v.  Marshall 
St.  P.  Co.,  20  Phila.  (Pa.)  203. 

73.  Location  of  teriuini.— A  charter 
authorized  the  company  "  to  survey,  lay 
out,  and  construct  a  railroad  from  some 
suitable  point  in  the  township  of  O.  to 
some  suitable  point  in  O.  street  or  some 
street  north  of  said  street  or  south  of  M. 
street,  in  the  city  of  N."  Held,  that  this 
referred  not  to  the  route,  but  to  the  termi- 
nation of  the  road,  and  did  not  exclude  a 
location  of  the  road  in  or  through  M.  street. 
McFarland  v.  Orange  <S-  N.  H.  C.  K.  Co., 
\lN.J.  Eq.  17. 

By  New  York  Act  of  April  25,  1832,  the 
company  thereby  created  was  authorized  to 
construct  a  railroad,  "commencing  at  an 
eligible  point  within  the  village  u{  Brook- 
lyn, and  extending  to  any  point  within  the 
village  of  Jamaica."  The  company  made  a 
location  in  Brooklyn,  and  constructed  its 
road,  which  it  adhered  to  for  many  years. 
Held,  that  it  was  thereby  concluded  as  to 
the  location.  Brooklyn  C.  P.  Co.  v.  Brooklyn 
City  P.  Co.,  32  Pari.  (JV.  V.)  358. 

A  railroad  was  chartered  to  commence  in 
the  city  of  Brooklyn,  Kings  county,  and  to 
terminate  at  Newtown,  Queens  county,  the 
next  adjoining  county,  the  road  to  be  about 
twenty-five  miles  long.  There  were  both  a 
township  and  a  village  called  Newtown,  the 
village  being  about  twenty-five  miles  from 
Brooklyn,  but  the  township  bordered  on  the 
city  of  Brooklyn.  Held:  (i)  that  the  word 
"  Newtown  "  must  be  held  to  mean  the  vil- 
lage ;  (2)  that  the  provisions  that  the  road 
must  terminate  "at"  Newtown  authorized 
it  to  be  built  to  some  convenient  point  in 
the  place,  and  not  merely  to  its  border. 
Mason  v.  Brooklyn  City  <S-  .<V.  P.  Co.,  35 
Bark  (N.  Y.)  373.— Reviewing  Mohawk 
Bridge  Co.  v.  Utica  &  S.  R.  Co.,  6  Paige 
(N.  Y.)  SS4. 

74.  Right  to  lay  double  track  — 
Forfeiture.  —  If  the  grantee  of  a  street- 
railway  franchise  makes  an  assignment  of  a 


(i!: 


■ '  '^'A 


380 


STREET  RAILWAYS,  75,  76. 


I 


■ 
111 


I 


portion  thereof  and  the  assi{{nee  enters  into 
possession,  the  question  whether  the  grantee 
can  thus  divide  his  franchise  is  one  which 
concerns  the  public  alone.  Oakland  A'.  Co, 
V.  Oakland,  II  <S-  F.  V.  N.  Co.,  45  Cal.  365. 
5  Am,  A'y.  Rep.  148. 

Where  a  ciiarter  authorizes  the  company 
to  build  a  single  or  double  track  over  any 
streets  in  the  city,  as  has  been  or  should  be 
authorized  by  the  common  council,  and  full 
permission  is  given  by  ordinance  to  lay  a 
track,  in  which  a  time  is  fixed  for  its  com- 
pletion, and  a  forfeiture  is  provided  for  in 
case  of  non-completion,  and  before  the  ex- 
piration of  the  time  the  ordinance  is 
amended  and  the  time  extended  for  the 
period  of  ten  years,  this  latter  ordinance 
extends  the  time  for  ten  years  after  the  ex- 
piration of  the  time  fixed  by  the  previous 
ordinance.  McNeil  \.  Chicago  City  R,  Co,, 
61  ///.  150,  12  Am.  Ry.  Rep.  457. 

After  this  latter  ordinance  was  adopted, 
the  company  passed  a  resolution  adopting 
the  terms  of  the  ordinance  on  the  condition 
of  the  repeal  of  certain  other  ordinances, 
and  agreed  to  a  pos:ponement  of  laying 
the  track  for  the  time  mentioned.  Subse- 
quently the  common  council  accepted  the 
proposition  contained  in  the  resolution,  re- 
citing that  the  company  had  obligated  itself 
to  postpone  the  laying  of  the  track  for  the 
period  of  ten  years,  and  the  amendatory 
ordinance  was  affirmed.  Held,  that  this  did 
not  constitute  an  abandonment  of  the  right 
to  build  by  the  company,  but  merely  a  post- 
ponement of  the  right.  McNeil  v.  Chicago 
City  R.  Co.,  61  III.  150, 12  Am.  Ry,Rep.  457. 

A  company  laid  tracks  on  a  street  and 
used  them  for  seven  years ;  then  the  double 
track  was  removed,  and  a  single  one  laid 
which  sufficed  for  the  business  of  the  road 
for  the  next  ten  years.  The  business  again 
requiring  the  double  track,  the  company 
proceeded  to  tear  up  the  single  track,  to 
relay  again  the  double  one,  when  a  bill  was 
filed  to  restrain  it  on  the  ground  that  it  had 
forfeited  its  right  to  relay  this  track  by  non- 
user.  Held,  that  there  was  no  ground  for 
forfeiture,  Hestonville,  M.  &*  F.  Pass,  R. 
Co.  v.  Philadelphia.  89  Pa.  St.  210.— Dis- 
tinguished IN  Henderson  v.  Central  Pass. 
R.  Co.,  20  Am.  &  Eng.  R.  Cas.  542,  21  Fed. 
Rep.  358.  Quoted  in  Allentown  &  B. 
Rapid  Transit  Co.,  i  Pa.  Dist.  430. 

Where  a  street  passenger  railway  ac- 
quires the  right  to  lay  a  double  track,  but 
constructs    at    first    only    a  single    track, 


which  it  uses  for  some  seven  years,  it  is 
not  thereby  excluded  from  laying  an  ad- 
ditional track.  There  is  no  rule  of  law 
requiring  a  company  to  exercise  all  the 
powers  contained  in  its  grant,  in  the  be- 
ginning, or  which  declares  the  powers  lost 
which  are  not  immediately  exercised.  P>:o- 
pie's  Pass,  R,  Co,  v.  Baldwin,  14  Philu, 
(Pa.)  231. 

75.  Right  to  croNM  bridge.*— A  street 
railway  company  was  authorized  by  law  to 
lay  its  track  across  a  bridge,  with  the  pro- 
vision that  if  the  bridge  company  and  the 
railway  company  could  not  agree  on  the 
rate  of  toll  for  the  street  cars,  then  the 
court  of  quarter  sessions  should  fix  the  rate. 
Afterwards  the  bridge  company  was  author- 
ized to  erect  a  new  bridge.  Held,  that  said 
court  still  had  the  power  to  fix  the  rate  of 
tolls.  Monongahehx  Bridge  Co.  v.  Pittsburgh 
Sf  B.  R.  Co.,  1 14  Pa.  St.  478.  8  Atl.  Rep.  233. 

70.  Motive  power  to  be  used.— A 
charter  authorizing  the  company  to  main- 
tain and  operate  a  street  railway  along  and 
over  a  public  street  in  an  incorporated  town, 
which  is  silent  as  to  the  motive  power  to 
be  used  for  propelling  the  cars,  will  be  in- 
tended as  giving  the  right  to  use  that  kind 
of  motive  power  which  would  be  most  con- 
ducive to  the  best  interest  and  safety  of  the 
public  having  occasion  to  use  said  streets 
as  a  highway,  and  which  was  at  the  time  of 
passing  the  charter  in  ordinary  use.  North 
Chicago  City  R.  Co.  v.  Lake  View,  1 1  Am. 
6f*  Eng.  R,  Cas,  42,  lo;  III.  207. 

Authority  in  a  charier  to  build  either  a 
horse  railroad  or  a  steam  railroad  within 
a  city  confers  a  continuing  option  to  use 
either  steam  or  animal  power,  or  both, upon 
the  road,  or  any  part  of  it,  which  may  be 
exercised  from  time  to  time.  Under  it  the 
use  of  either  motive  power  may  be  changed 
and  the  other  substituted,  as  the  company 
may  see  fit.  McCartney  v.  Chicago  &*  E.  R. 
Co.,  29  Am.  <&*  En^.  R.  Cas,  326,  1 12  ///.  611. 

A  city  may  prescribe  the  motive  power  to 
be  used  in  moving  cars,  and  when  it  pre- 
scribes one  kind  of  power  the  company 
cannot  use  another;  and  in  a  contest  for 
the  possession  of  a  street  between  rival 
companies,  one  of  which  is  using  a  motive 
power  not  authorized  by  its  charter,  the 
other  company  may  attack  its  right  to  use 
such  street  by  showing  such  violation  of  its 

*  Street  cars.  Appropriating  county  bridge; 
right  of  county  to  compensation,  see  32  Am.  & 
Eng.  R.  Cas.  170,  adstr. 


STREET   RAILWAYS,  77-70. 


381 


franchise.  Indianapolis  Cable  St,  R.  Co.  v. 
Cilisens  St.  K.  Co..  43  ^i"*-  ^  i'-^S-  A'.  Cas. 
234,  127  Ind.  369,  24  A'.  E.  Rep.  1054,  26  A'. 
E.  Rep.  893. 

The  use  of  tlie  term  "  passenger  railway  " 
in  the  title  of  an  act  incorporating  a  rail- 
way company  does  not  restrict  the  fran- 
chise conferred  to  the  operation  of  a  rail- 
way upon  the  streets  of  a  municipality, 
without  authority  to  carry  anything  but 
passengers,  or  to  use  steam  cars  or  the  kind 
of  rails  appropriate  therefor.  Millvale  v. 
Everirreen  R.  C-^  i6  Ant.  &*  Eng.  R.  Cas. 
219,  131  Pa.  St.  I,  18  Atl.Rep.  993.— QUALI- 
FYIN(  Coin.  V.  Central  Pass.  K.  Co.,  52  Pa. 
St.  506.  Quoting  Hestonville  M.  &  F. 
Pass.  R.  Co.  V.  Philadelphia,  89  Pa.  St.  210. 

77.  Wliui  streets  may  be  used,  and 
how.— A  company  petitioned  the  legisla- 
ture for  a  charter  for  a  horse  railroad,  and 
specified  the  streets  on  which  it  desired  to 
lay  its  tracks,  and  published  a  notice  of  the 
same,  as  required  by  law,  which  specified 
the  streets.  The  charter  was  granted,  speci- 
fying the  terminal  points  of  the  road  and 
the  particular  streets  through  which  it 
might  run,  omitting  two  named  in  the  peti- 
tion and  adding  one  that  was  not  named. 
Held,  that  the  company  had  no  right  to  lay 
its  tracks  on  streets  not  specified,  though 
the  charter  contained  a  clause  that  the  road 
might  run  "over  and  across  any  highway 
within  any  of  the  points  of  commencing 
or  termination  aforesaid."  Stamford  v. 
Stamford  Horse  R.  Co.,  36  Am.  &*  Eng.  R. 
Cas.  140,  56  Conn.  381,  i  L.  R.A.  375.  15  ^//. 
Rep.  749. 

Where  a  company  is  authorized  by  its 
charter  to  lay  its  tracks  on  such  streets 
as  may  be  authorized  by  the  city  authori- 
ties, and  the  city  authorizes  the  company  to 
use  certain  streets,  which  the  company  ac- 
cepts, and  constructs  its  road,  this  consti- 
tutes a  contract  which  cannot  be  impaired 
by  a  subsequent  resolution  or  ordinance  by 
the  city.  People  v.  Chicago  W.  D.  R.  Co., 
18  ///.  App.  125. 

The  charter  of  a  company  authorized  it 
to  lay  tracks  "  upon "  and  "  over "  such 
streets  as  the  municipal  authorities  might 
designate,  except  "  in  "  certain  specified 
streets,  in  which  tracks  were  not  to  be 
laid.  Two  of  the  designated  streets  de- 
bouched on  to  one  of  the  excluded  streets 
almost  but  not  quite  opposite  each  other. 
Held,  that  the  company  could  lay  its  tracks 
accross  the  excluded  street,  making  a  con- 


tinuous   track     through    the    designated 
streets.     State  v.   Newport   St,  Ji,   Co.,  16 
R.  I,  533,  18  Atl.  Rep.   161. 
78.  When   iujiiiictioii   will   lie.  — 

Where  the  state  authorities  have  issued  a 
charter  under  Pa.  Act  of  May  14,  1889,  to  a 
company,  specifying  the  straight  line  of  a 
north  and  south  stuti  as  the  route  of  the 
proposed  railway,  the  supreme  court  will 
not  enjoin  the  construction  of  the  railway 
on  the  ground  'I  ti  the  route  is  not  w  circuit 
within  the  tnci  >.mguf  the  act,  1  .  a  proceed- 
ing to  prevent  the  con>^<  ruction  of  the  road, 
where  the  state  is  m.t  a  party.  Junction 
Pass.  R.  Co.  V.  l\  illiiimsport  Pass.  R.  Co., 
154  Pa.  St.  116,  26  Atl.  Rep.  295. 

70.  Application  of  greueral  laws  to 
street  railroads.  —  The  provisions  of 
Kan.  Comp.  Laws  1879,  ch.  23,  §  7,  as  to 
statement  of  termini  in  charters,  do  not 
apply  to  a  street  railway  company,  incorpo- 
rated for  the  purpose  of  constructing  and 
operating  a  horse-car  railway  in  the  streets 
of  a  single  city.  Atchison  St.  R,  Co.  v.  Mis- 
souri Pac.  R.  Co.,  14  Am,  &*  Eng.  R.  Cas, 
439,  31  R'an.  660,  3  Pac,  Rep.  284. 

A  provision  in  a  charter  that  no  other 
"railroad"  should  be  constructed  between 
two  named  points  in  a  city  cannot  be  con- 
strued as  prohibiting  the  construction  of 
street  railways  anywhere  within  the  city 
for  the  convenience  of  its  inhabitants.  In 
a  technical  sense,  a  street  railway  is  not  a 
railroad,  and  in  such  contradistinctive  sense 
the  term  "  railroad  "  was  used  in  the  charter. 
Louisville  &^  P,  R,  Co,  v.  Louisville  City  R. 
Co.,  2  L>uv.  {Ky.)  175.— Reviewing  Lexing- 
ton &  O.  R.  Co.  V.  Applegate,  8  Dana  (Ky.) 
289.— Distinguished  in  Johnson  v,  Louis- 
ville City  R.  Co.,  10  Bush  (Ky.)  231. 

A  proviso  in  the  charter  of  a  city  railway 
company  that  its  railways  shall  not  "  affect 
the  legal  rights  of  any  other  companies  " 
only  protects  the  latter  in  the  use  of  their 
roads  and  the  exclusive  right  to  railroad 
profits,  and  does  not  prohibit  the  construc- 
tion of  a  street  railway.  Louisville  &*  P,  R. 
Co.  v.  Louisville  City  R.  Co.,  2  Duv.  {Ky.)  175. 

111.  Act  of  Feb.  12,  1855,  entitled  "  An  act 
to  enable  railroad  corporations  to  enter 
into  operative  contracts,  and  to  borrow 
money,"  extends  to  horse  railways,  and 
they  may,  under  it,  unite  their  tracks  and 
make  running  agreements  with  each  other. 
Chicago  v.  Evans,  24  ///.  52.— Reviewed  in 
Lieberman  v,  Chicago  &  S.  S.  R.  T.  R.  Co., 
141  111.  140. 


:::l 


382 


STREET   RAILWAYS,  80,  81. 


i 


i  \i 


III 


A  certificate  of  incorporation  recited  that 
certain  persons  had  associated  "  for  the 
purpose  of  constructing  a  horse  railroad  in 
accordance  with  the  provisions  of  the  Act 
of  1870,  ch.  476,"  entitled  "An  act  to  pro- 
vide for  the  creation  and  regulation  of  in- 
corporated companies  in  tiie  state  of  Mary- 
land," The  termini  ol  the  road  were  to  be 
the  city  of  Baltimore  and  a  certain  village. 
The  whole  route  of  the  road  passed  through 
Baltimore  county,  the  Baltimore  terminus 
being  within  the  city.  The  certificate  was 
acknowledged  before  a  justice  in  the  city 
and  certified  by  a  judge  of  the  supreme 
bench  of  the  city.  Held,  that  the  provisions 
of  the  act  are  not  restricted  to  steam  rail- 
ways, and  that  this  horse  railway  could  be 
legally  incorporated  under  it.  Olerv.  Balti- 
more &*  R.  R.  Co.,  41  Md.  583,  7  Am,  Ry. 
Rep.  495. 

Tiie  mere  fact  that  a  charter  contains 
some  provisions  usually  included  in  special 
charters  granted  to  railroad  companies,  such 
as  condemnation  of  lands  and  the  taking  of 
the  railroad  by  the  state,  does  not  require 
the  charter  to  be  construed  so  as  to  prevent 
the  construction  and  operation  of  a  street 
railway  within  a  city,  where  the  charter  ex- 
pressly confers  upon  the  company  the  rigiit 
to  construct  its  railroad  from  some  point 
within  the  city  to  a  point  without,  as  well 
as  along  any  street  of  the  city.  Paterson  R, 
Co.  V.  Grundy,  56  Am.  &*  Eng.  R.  Cas.  486, 
II  N.J.  Eg.  213,  26  At  I.  Rep.  788. 

80.  Change  of  location.  —  Under 
Mass.  Act  of  1864,  ch.  229,  the  selectmen  of 
a  town  may  revoke  the  location  of  a  street 
railway  which  is  chartered  to  extend  beyond 
the  limits  of  the  town.  Medford  &•  C,  R, 
Co.  v.  Somerville,  1 1 1  Mass.  232. 

A  company  refused  to  obey  an  order  of 
the  selectmen  of  a  town  to  remove  its 
tracks  from  the  side  to  the  middle  of  a 
street.  The  selectmen  then  gave  notice  to 
all  persons  interested  to  show  cause  why  the 
location  of  the  track  should  not  be  revoked, 
and  after  a  hearing  revoked  the  location  as 
to  the  public.  Held,  that  the  notice  was  a 
sufficient  compliance  with  Mass.  Act  of 
1864,  ch.  229,  §§  14,  15.  providing  that  the 
selectmen  of  a  town  may  grant  or  refuse  the 
location  of  a  street  railway,  or  revoke  the 
same,  upon  giving  notice  to  all  parties  in- 
terested, by  publication  in  some  newspaper 
"or  otherwise,  as  they  may  determine." 
Medford  &*  C.  R.  Co,  v.  Somerville,  1 1 1 
Mass.  232, 


Where  a  company  has  refused  to  build  an 
additional  road  lawfully  required  by  the 
common  council,  it  is  discretionary  with 
the  council  to  make  such  changes  in  the 
proposed  route  as  to  form  a  junction  with 
the  road  of  some  company  that  will  build  it, 
even  though,  in  so  doing,  a  street  in  which 
the  former  company  had  exclusive  rights  is 
used  as  a  connecting  link.  If  such  a  use 
infringes  the  rights  of  the  former  company, 
it  IS  damnum  adsgue  injuria.  Grand  Rapids 
St.  R.  Co.  V.  West  Side  St.  R.  Co.,  7  Am.  «S- 
Eng.  R.  Cas.  95,  48  Mich.  433,  12  A^.  W. 
Rep.  643. 

The  powers  of  a  corporation  organized 
under  N.  Y.  Act  of  1884,  ch.  252,  §  3,  are 
limited  to  the  construction  of  a  street  sur- 
face railroad;  a  id  when  its  articles  of  asso- 
riation  state  its  purpose  to  be  to  construct 
and  operate  a  street  surface  railroad  through 
certain  specified  avenues,  it  has  no  power  to 
change  its  route  so  as  to  run  through  pri- 
vate property,  or  to  condemn  private  prop- 
erty for  the  purpose  of  the  road.  When  a 
change  of  route  involves  not  only  a  contra- 
diction and  violation  of  the  articles  of  as- 
sociation, but  also  of  the  character  and 
quality  of  the  corporation,  it  becomes  more 
than  a  mer:j  change.  In  re  South  Beach  R. 
Co.,  119  N.  V.  141,  28  N.  V.  S.  R.  942,  23 
N.  E.  Rep.  486 ;  affirming  25  A^.  Y,  S,  R. 
328,  6  N.  V.  Supp.  172,  53  Hun  131. 

III.  CONDITIOHS  ANNEXED  TO  0BANT8. 

I.  In  General 

81.  Imposing  conditions,  gen- 
erally.—Under  III.  Act  of  July  I,  1874,  a 
city  has  the  legal  right  and  authority  to 
impose  such  terms  and  conditions  on  street- 
railway  companies  as  it  deems  best  for  the 
public  interests ;  and  the  courts  only  have 
the  power  to  determine  whether  such  terms 
and  conditions  contravene  established  prin- 
ciples of  law.  Citizens'  Horse  R.  Co.  v. 
Belleville,  47  ///.  App.  388. 

A  city  has  the  power  to  impose  terms 
upon  a  street  railway  as  to  the  time  and 
character  of  the  road  to  be  constructed, 
upon  the  fulfilment  of  which  depends  the 
maturing  of  the  grant ;  and  while  such  con- 
ditions are  being  fulfilled  within  the  time 
prescribed,  if  there  is  a  limit  the  grant  re- 
mains inchoate,  and  they  are  termed  condi- 
tions precedent ;  while  those  terms  imposed 
that  affect  the  manner  of  operating  the  road 
and  its  state  of  repair  after  its  proper  con- 


STREET   RAILWAYS,  82. 


Lh 

it. 


struction  are  conditions  subsequent:  in 
wtiich  case  such  a  grant  becomes  vested 
propeity  with  all  the  rights  attached  that 
secure  tangible  property.  Citizens'  Horse 
Ji.  Co.  V.  Belleville,  47  ///.  App.  388. 

After  a  street-railway  company  has  ac- 
cepted the  conditions  imposed  upon  it  by  a 
city  ordinance,  and  constructed  its  road,  it 
ubtams  vested  rights;  and  thereafter  the 
question  of  forfeiture  is  for  the  courts  and 
not  the  city.  Anythmg  short  of  a  judicial 
determination  would  not  be  "due  process  of 
law."  Citizens'  Horse  R.  Co.  v.  Belleville,  47 
///.  App.  388. 

A  grant  by  city  authorities  of  certain 
overflowed  lands,  on  condition  that  the 
grantees  will  fill  up,  grade,  and  pave  a  part 
of  the  lands  filled,  to  be  used  as  a  street, 
does  not  convey  to  the  grantees  the  legal 
title  to  the  lands  so  filled  up.  Waterbury 
&»  E.  R.  Ferry  Co.  v.  Dry  Dock,  E.  B.  &•  B. 
R.  Co.,  54  Barb.  (M  V.)  388.  32  How.  Pr. 
193;  reversing  30  How.  Pr,  39. 

82.  Limiting  time  in  which  road 
shall  be  completed— Waiver. — Where 
a  company  is,  by  ordinance  of  the  city, 
given  license  to  lay  a  track  along  a  street  to 
the  city  limits  within  fifteen  months,  and 
the  same  is  constructed  half  the  way  with- 
in the  time  required,  the  common  council 
has  the  power  to  waive  the  condition  as  to 
the  time  for  completing  the  same,  it  being 
a  provision  in  favor  of  the  city  to  secure 
the  public  interests.  Chicago  City  R.  Co.  v. 
People  ex  rel.,  73  ///.  541. 

Where  a  city  authorizes  a  street-railroad 
compai.y  to  lay  its  track  in  a  certain  street 
within  a  specified  time,  the  privilege  must 
be  used,  if  at  all,  before  the  expiration  of 
the  time  limited.  Atchison  St.  R.  Co.  v. 
Nave,  36  Am,  &*  Eng,  R,  Cas.  29,  38  Kan, 
744,  \T  Pac,  Rep,  58/. 

Where  a  city  grants  the  light  to  build  a 
street  railroad,  but  stipulates  in  the  contract 
that  in  case  the  contractor  fails  to  complete 
the  work  within  the  time  prescribed  he 
shall  forfeit  all  claims  for  work  done,  an-* 
the  city  shall  have  the  right  to  resell  the 
privilege  and  right  of  way,  at  the  risk  of 
the  contractor  and  his  sureties  in  sol'do,  this 
only  gives  to  the  city  the  right  to  resell  the 
right  of  way  and  the  privilege  to  build,  but 
does  not  include  the  structure  or  any  equip- 
ment placed  on  the  ground.  Young  v. 
Magazine  St.  R.  Co.,  24  La.  Ann.  53. 

The  failure  of  a  company  10  begin  the 
work  of  constructing  its  tracks  within  the 


time  prescribed  by  an  ordinance  cannot  be 
taken  advantage  of  or  enforced  collaterally 
or  incidentally,  as  a  ground  of  forfeiture  of 
the  rights  of  the  company ;  it  can  only  be 
availed  of  by  a  direct  proceeding  for  that 
purpose  against  the  company.  Hodges  v. 
Baltimore  Union  Pass.  R.  Co.,  10  Am.  &* 
Eng.  R.  Cas,  270,  58  Md.  603. 

The  common  council  of  a  city  granted  to 
a  company  a  right  of  way  over  certain 
streets,  providing  in  the  ordinance  that  the 
road  should  be  completed  within  twelve 
months  from  acceptance  of  the  grant  by 
the  company,  and  that  in  case  of  failure  so 
to  complete  it  the  council  might  take  away 
the  franchise.  Held,  that  this  provision 
was  a  condition  subsequent,  and  that  the 
right  of  way,  when  accepted  by  the  com- 
pany, vested  at  once,  subject  to  be  defeated 
at  the  election  of  the  city  for  breach  of  the 
condition,  but  that  a  private  citizen  could 
not  take  advantage  of  a  breach.  Hovelman 
v.  Kansas  City  Horse  R.  Co.,  20  Am.  &•  Eng. 
R,  Cas.  17,  79  Mo.  632.— Following  Knight 
V,  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  70  Mo. 
231  ;  Atlantic  &  P.  R.  Co.  v.  St.  Louis,  66 
Mo.  228.  Quoting  Brooklyn  C.  R.  Co.  v. 
Brooklyn  City  R.  Co.,  32  Barb.  (N.  Y.)  364. 

A  city  ordinance  granted  to  plaintiff  com- 
pany the  right  to  construct  and  operate  a 
railway  upon  certain  streets  on  condition 
that  a  portion  thereof  should  be  completed 
within  one  year  from  date,  and  the  balance 
within  two  years.  "  And  so  much  of  said 
right  of  way  as  may  not  be  occupied  by  said 
company  within  said  time  shall  be  consid- 
ered as  abandoned."  Held,  that  upon  fail- 
ure to  occupy,  etc.,  within  the  time,  the 
company  forfeited  its  rights  beyond  that  so 
occupied, and  no  further;  i.  e.,  the  forfeiture 
did  not  extend  to  the  completed  work. 
Mayor,  etc,  0/  Houston  v.  Houston  B.  S^  M. 
P.  R.  Co.,  84  Tex.  581,  19  S.  IV,  Rep,  786. 

The  extent  to  which  the  streets  were  oc- 
cupied by  the  company  was  a  fact  for  the 
jury;  it  was  improper  for  the  court  to 
charge  the  jury  that  such  occupancy  existed 
"  if  the  ties  were  laid  and  the  rails  placed 
and  spiked  thereon."  Mayor,  etc.,  0/ Houston 
V.  Houston  B,  <S-  M.  P,  R,  Co,,  84  Tex.  581, 
195.  IV,  Rep.  786. 

The  fact  that  the  company  has  made 
large  expenditures  is  not  of  itself  a  reason 
why  its  time  for  completing  the  road  should 
be  extended.  Mayor,  etc,  of  Houston  v. 
Houston  B.  &*  M,  P,  A.  Co.,  84  Tex,  581,  19 
S.  IV.  Rip,  786. 


384 


STREET   RAILWAYS,  Hti-HO. 


m% 


wpim^ 


ii' 


I 


Where  the  city  by  its  repealing  ordinance 
involves  the  right  of  the  company  to  con- 
tinue its  woric  of  construction  in  so  much 
doubt  as  to  justify  the  discontinuance  of  the 
work  until  the  effect  of  the  ordinance  can 
be  judicially  determined,  the  time  interven- 
ing between  the  passage  uf  that  ordinance 
and  the  final  determination  in  favor  of  the 
right  of  the  railway  to  continue  its  work 
should  not  be  estimated  against  it.  Mayor, 
etc.,  of  Houston  v.  Houston  B.  6-  M.  P.  R. 
Co.,  84  Tex.  581.  19  5.  W.  Rep.  786. 

83.  Requiring  iiiclemiiity  or  secu- 
rity.— Where  a  company  is  given  permission 
by  the  board  of  county  commissioners  to 
lay  its  track  along  a  public  iiighway,  and  is 
required  to  deposit  in  the  county  treasury  a 
certain  sum  of  money,  wliich  is  to  be  repaid 
upon  the  performance  by  it  of  certain  con- 
ditions, it  can  only  recover  the  money  so 
deposited  by  showmg  a  performance  of  the 
conditions,  or  a  legal  excuse  for  not  dr)ing 
so.  St.  Joseph  County  Com'rs  v.  South  Bend 
6-  M.  St.  R.  Co.,  118  In.t.  68,  20  A'.  E. 
Rep.  499. 

The  fact  that  the  performance  of  the  con- 
ditions by  the  company  will  puc  it  to  great 
inconvenience  and  cause  it  a  large  outlay  of 
money  is  not  a  sufficient  excuse  for  non- 
performance. St.  Joseph  County  Com'rs  v. 
South  Bend^*  M.  St.  R.  Co.,  118  I  id.  68,  20 
N.  E.  Rep.  499. 

Where  a  common  council  has  advertised 
and  sold  a  street-railway  franchise,  no  con. 
ditions  can  be  imposed  which  are  not  re- 
quired by  statute,  or  resolutif^n  of  the 
common  council,  or  the  notice  of  sale.  The 
statute  provides  for  giving  a  bond,  contain- 
ing certain  conditions,  among  others,  for 
the  commencement  and  completion  of  the 
road  within  a  specified  time;  but  where  a 
sufficient  bond  is  tendered,  containing  these 
conditions,  the  city  comptroller  cannot  re- 
fuse it  because  it  does  not  contain  oihcr 
conditions  imposed.  People  ex  rel.  v.  Bar- 
nard, 36  Am.  &*  Eng.  R.  Cas.  70,  1 10  N.  V. 
548,  18  N.  E.  Rep.  354,  18  iV.  y.  S.  R.  542  ; 
reversing  48  Hun  57,  1 5  A^.  V.  S.  R.  689. 

While  a  municipal  corporation  cannot 
legalize  a  nuisance,  it  has  power  to  control 
the  use  of  streets  for  a  lawful  purpose,  and 
may  require  indemnity  from  a  person  al- 
lowed to  use  the  streets,  on  which  to  rely  in 
case  a  cause  of  action  should  result  from 
the  act  or  omission  of  the  person  to  whom 
such  right  may  be  granted.  Taylor  v.  Dunn, 
80  Ttx.  652,  16  S,  W.  Rep.  732  -  Quoting 


Becker  v.  Keokuk  Waterworks,  79  Iowa  419 ; 
Kansas  ex  rel.  v.  O'Connell,  99  Mo.  357. 
Reviewing  Blake  v.  Ferris,  5  N.  Y.  48. 

84.  Reqiiiriiif;  pnrcliase  of  omni- 
bus line. —  Where  the  charter  of  a  com- 
pany provides  that  the  company  shall 
purchase  the  stock  of  omnibuses,  horses, 
etc.,  of  omnibus  companies  now  running 
on  the  streets  which  the  railway  company 
desires  to  occupy,  and  that  an  appraisement 
of  such  stock  shall  be  made  by  appraisers 
to  be  chosen  in  a  manner  prescribed,  if  it 
does  not  appear  to  the  satisfaction  of  a 
court  of  equity  that  the  conditions  have 
been  com'plied  with,  an  injunction  will  be 
decreed  until  such  shall  appear  to  be  the 
case.  Whitson  v.  Philadelphia  &*  G.  F, 
Pass  R.  Co.,  3  Phila.  (Pa.)  284.  —  FOLLOW- 
ING Descliamps  v.  Second  &  T.  St.  Pass. 
R.  Co.,  3  Phila.  279. 

The  line  of  omnibuses  on  Green  and 
Coates  streets  in  Philadelphia  'vas  embraced 
within  the  provision  of  Pa.  Act  incorporat- 
ing "  The  Green  and  Coates  Street  Pas- 
senger railway  company."  On  the  refusal 
of  the  company  to  buy  the  horses,  the 
owners  of  the  omnibus  line  neither  tendered 
them  nor  resorted  to  a  resale  within  a 
reasonable  period,  but  sued  the  corporation 
for  damages  for  a  breach  of  contract,  by 
refusing  to  join  in  the  appraisement.  Held, 
that  the  damages  should  be  strictly  com- 
mensurate with  the  actual  loss  sustained. 
Moore  v.  Green  &*  C.  St.  Pass,  R.  Co.,  4 
Phila.  (Pa.)  261. 

2.  Consent  oj Local  Authorities. 

85.  Generally.— Certain  property  own- 
ers in  a  city  petitioned  the  city  authorities 
to  grant  permission  to  a  street-railway  com- 
pany to  extend  its  line  to  a  point  named, 
and  requesting  the  council  to  pass  an  or- 
dinance, or  to  issue  such  order  as  it  might 
legally  issue,  to  compel  such  company  to 
lay  its  tracks  and  run  its  cars  upon  said  ex- 
tended line  without  unnecessary  delay.  Held, 
that  the  petition  did  not  request  the  grant  of 
the  permission  upon  any  condition  what- 
ever, although  the  consent  to  the  laying  ol 
the  track  might  have  been  made  to  depend 
upon  conditions  which  the  council  could 
not  have  disregarded.  People  ex  rel.  v. 
Chicago  W.  D.  R.  Co.,  25  Am.  6-  Eng.  R. 
Cas.  258,  118  ///.  113.  7  N.  E.  Rep.  116. 

A  municipality  does  not  stand  in  the  same 
relation  to  a  street-railway  charter  and 
franchise,  merely  because  it  has  control  of 


STREET   RAILWAYS,  86,  87. 


385 


the  streets,  that  an  individual  does  who  owns 
lands  within  the  line  of  the  right  of  way  of 
an  ordinarily  incorporated  railroad  com- 
pany. Citizens'  Horse  R.  Co.  v.  Belleville,  i;j 
III.  App.  388. 

The  consent  of  a  municipality  to  the  oc- 
cupancy of  a  street  by  a  street-railway 
company  is  not  destructive  of  the  right  of 
the  municipality  to  repair  or  construct 
works  necessary  for  the  health  of  its  inhab- 
itants or  the  protection  of  their  persons  or 
property;  and  an  employ^  of  the  munici- 
pality engaged  in  such  work  within  the 
space  occupied  by  the  railway  company's 
tracks  is  not  a  trespasser.  Owens  v.  People's 
Pass.  R.  Co.,  155  Pa.  St.  334,  26 Atl.  Rep.li,Z. 

The  approval  or  disapproval  by  the  city 
councils  of  the  occupancy  of  a  street  by  a 
passenger  railway  cannot  be  inferred  until 
proof  of  notice  of  the  intention  to  use  the 
street  is  given  to  the  city  authorities. 
Hestonville  M.  &*  F.  R.  Co.  v.  Schuylkill 
River  Pass.  R.  Co.,  6  Phila.  {Pa.)  141.— 
Following  Faust  v.  Second  &  T.  St.  Pass. 
R.  Co.,  3  Phila.  164.  Reviewing  Storm- 
feltz  V.  Manor  Turnpike  Co.,  13  Pa.  St.  560. 

86.  When  consent  necessary.  — 
Under  the  Constitution  of  Illinois  the  legis- 
lature cannot  grant  the  right  to  construct 
and  operate  a  street  railroad  within  any  city, 
town,  or  incorporated  village,  except  by  ac- 
quiring the  consent  of  the  local  authorities 
having  control  of  the  streets;  and  this  ap- 
plies to  horse  railways.  Metropolitan  City 
R.  Co.  V.  Chicago,  2  Am.  &•  Eng.  R.  Cas.  291, 
96  ///.  620. 

Where  a  charter  is  granted  for  the  pur- 
pose of  building  and  using  a  passenger  rail- 
way in  certain  streets,  subject  "  to  ail  the 
ordinances  of  the  councils  of  the  said  city," 
the  company  by  accepting  the  charter 
agrees  to  obtain  the  consent  of  the  councils 
to  its  work,  agreeably  to  the  ordinances  of 
the  city.  Philadelphia  v.  Lombard  &*  S,  St. 
Pass.  R.  Co.,  3  Grant's  Cas.  (Pa.)  403. 

A  charter  authorized  a  company  to  lay 
tracks  along  certain  streets  of  a  «':ity,  "  Pro- 
vided, that  before  said  company  shall  use 
and  occupy  any  of  said  streets,  the  consent 
of  the  councils  of  the  city  or  borough  within 
which  the  said  street  lies  shall  first  be  ob- 
tamed  by  ordinance  duly  passed."  By  a 
supplementary  act,  which  contained  no  di- 
rection requiring  the  consent  of  councils, 
the  company  was  authorized  10  lay  tracks 
between  certain  points,  the  ro'ji.e  between 
which  was  partly  within  th;  <,ity  limits. 
7  D.  R.  D.— as 


Held,  that  before  tracks  could  be  laid  under 
the  latter  act  the  consent  of  councils 
must  be  obtained.  Appeal  of  Pittsburgh,  A. 
&*  M.  Pass.  R.  Co.,  I  Pennyp.(.Pa.)  449. 

Thougli  the  company  was  iprorporated 
in  1859,  and  the  supplementary  act  was 
passed  in  1861,  the  company  was  subject  to 
the  Act  of  March  19,  1879,  which  provides 
that  no  street  passenger  railway  shall  be 
constructed  without  the  consent  of  the  local 
authorities.  Appeal  of  Pittsburgh,  A.ir"  M. 
Pass.  R.  Co.,  I  Pennyp.  {Pa.)  449. 

Under  Pa.  Const,  art.  17,  §  9,  and  the 
Act  of  May  14,  1889,  §  15,  the  consent  of  a 
city  to  the  construction  of  a  street  railway 
upon  its  highways  is  a  condition  precedent 
thereto,  and  without  it  a  company  incor- 
porated under  the  act  of  1889  has  no  right, 
present  or  prospective,  to  occupy  streets  for 
that  purpose.  Larimer  &*  L.  St.  R.  Co.  v. 
Larimer  St.  R,  Co.,  137  Pa.  St.  533,  20  Atl. 
Rep.  570. 

A  company  not  having  obtained  such 
consent  has  no  standing  by  a  bill  for  an 
injunction  to  question  the  right  of  another 
company,  subsequently  incorporated,  to  oc- 
cupy streets  covered  by  the  prior  charter ; 
having  itself  no  right  to  occupy  such  streets, 
the  older  company  cannot  be  said  to  suffer 
special  damage.  Larimer  &*  L.  St.  R.  Co. 
V.  Larimer  St.  R.  Co.,  137  Pa.  St.  533,  20 
Atl.  Rep.  570. 

In  Texas  a  street-railway  company  cannot 
be  incorporated  by  special  act,  and  the 
legislature  cannot  by  general  law  confer  on 
a  street-railway  corporation  the  right  to 
establish  its  roadbed  on  any  street  without 
the  ;.onsent  of  the  local  municipal  authori- 
ties. (Const,  art.  3,  §  56;  art.  10,  §  7.) 
Great  C.  R.  Co.  v.  Gulf,  C.  6-  S.  F.  R.  Co., 
it  Am.  6-  Eng.  R.  Cas.  114,  63  Tex.  529. 

87.  When  consent  not  necessary. 
— The  dominant  control  of  highways  and 
streets  is  vested  in  the  legislative  power  of 
the  state,  and  by  virtue  of  legislative  enact- 
ment a  railroad,  operated  either  by  steam  or 
animal  power,  may  be  constructed  across  or 
along  them  without  the  consent  of  the 
municipal  authorities.  State  ex  rel.  v.  Jack- 
sonville St.  R.  Co.,  50  Am,  &*  Eng.  R.  Cas. 
179,  29  Fla.  590,  10  So.  Rep.  590. 

The  state  has  the  right  to  lay  an  addition- 
al servitude  upon  the  streets  and  squares  of 
the  city  of  Savannah,  by  granting  to  a  cor- 
poration the  right  to  run  a  street  railway 
through  them  without  the  consent  of  the 
mayor  and  aldermen.    Savannah  ^  T.  X. 


.M^iA'li.A.-l'iM.m 


886 


STREET   RAILWAYS,  88-90. 


6  • 


'^1 


Co.  V.  Mayor,  etc.,  of  Savannah,  45  Ca.  602, 
3  Am.  Ry.  Rep.  36. 

The  legislature,  unless  restricted  by  tlie 
Constitution,  may,  even  witliout  the  consent 
of  a  municipality,  and  without  allowing  it 
compensation,  authorize  railroads  to  be 
laid  in  its  highways ;  but  the  statute  may 
require  the  consent  of  the  municipality. 
Floyd  County  v.  Rome  St.  R.  Co.,  77  Ga.  614, 
3  5.  E.  Rep.  3. 

A  village  incorporated  for  the  special 
purpose  of  being  a  road  district  is  not  one 
of  the  municipal  corporations  whose  con- 
sent to  the  construction  of  a  street  railway 
is  required  by  the  Street  Railway  Act  of 
April  10,  1 861,  §  5  ;  nor  is  the  consent  of  tl'.c 
trustee  of  such  a  corporation  necessary, 
under  section  7  of  that  act,  when  the  railway 
is  laid  upon  the  roadbed  of  a  turnpike  com- 
pany, and  in  pursuance  of  an  agreement 
with  such  company.  Cincinnati  &*  S.  G.  A. 
St.  R,  Co.  V.  Cumminsviile,  14  Ohio  St.  523. 

Pa.  Const,  of  1874,  art.  17,  §  9,  and  the 
Act  of  May  23,  1878,  §  16,  providing  that  no 
street  passenger  railway  shall  be  constructed 
within  the  limits  of  any  city,  borough,  or 
township  without  the  consent  of  the  local 
authorities  thereof,  has  no  application  tu  a 
street-railway  company  which  was  chartered 
and  had  made  large  expenditures  before  the 
adoption  of  the  Constitution,  but  subsequent 
to  the  constitutional  amendment  of  1867, 
which  amendment  only  authorized  a  repeal 
for  cause  and  on  just  terms,  and  did  not 
operate  to  change  the  charter  of  such  com- 
pany, so  as  to  make  the  consent  of  the  city 
council  a  condition  precedent  to  the  laying 
of  its  tracks  in  the  city,  according  to  its 
original  charter.  Williamsport  Pass.  R.  Co. 
V.  Williamsport,  36  Am.  6-  Eng.  R.  Cas.  125, 
120  Pa.  St.  I,  13  Atl.  Rep.  496.— DISTIN- 
GUISHED IN  Junction  Pass.  R.  Co.  v.  Will- 
iamsport, 154  Pa.  St.  116.  Followed  in 
Gloninger  v.  Pittsburgh  &  C.  R.Co.,  139  Pa. 
St.  13.  Quoted  in  Millvale  v.  Evergreen 
R.  Co.,  46  Am.  &  Eng.  R.  Cas.  219,  131  Pa. 
St.  I. — Stroudsburg  v.  Stroudsburg  Pass.  R. 
Co.,  2  Pa.  Dist.  35.— Distinguishing  Penn- 
sylvania R.  Co.  V.  Duncan,  129  Pa.  St.  181. 

Texas  Const,  art.  10,  §  7,  withdraws  from 
the  legislature  the  power  to  authorize  the 
construction  and  operation  of  street  railways 
within  any  city,  town,  or  village,  or  upon 
any.public  highway,  "  without  first  acquiring 
the  consent  of  the  local  authorities."  This, 
however,  applies  to  railways  for  carrying 
pauengers,  etc.,  and  not  to  a  road  built  to 


carry  material  used  in  building  the  state 
capitol.  Taylors. Dunn,  80  Tex.  652,  16  S. 
W.  Rep-  732. 

88.  Validity  of  charter  granted 
subject  to  local  consent.  —  A  charter 
to  a  street-railway  company,  granted  sub- 
ject to  the  consent  or  approval  of  the  city 
authorities,  is  valid,  and  is  nut  open  to  the 
objection  that  it  is  an  attempt  to  delegate 
legislative  powers  to  the  city  councils. 
Philadelphia  v.  Lombard  &*  S.  St.  Pass.  R. 
Co.,  4  Dre^us.  {Pa.)  14. 

80.  Power  of  niunicipality  to  con- 
seut.--In  Texas  cities  have  the  power  to 
consent  that  their  streets  may  be  used  to  a 
reasonable  extent  by  street  railways.  Texas 
&>  P.  R.  Co.  V.  Rosedale  St.  R.  Co.,  22  Aw. 
&>  Eng.  R.  Cas.  160,64  Tex.  80.— Quot- 
ing Houston  &  T.  C.  R.  Co.  v.  Wilson,  60 
Tex.  144. 

Such  power  is  clearly  recognized  by  Tex. 
Const,  art.  10,  §  7,  prohibiting  the  legis- 
lature from  "  granting  a  right  to  construct 
and  operate  a  street  railway  within  any  city, 
town,  or  village,  or  on  any  public  highway, 
without  first  acquiring  the  consent  of  the 
local  authorities  having  control  of  the  street 
or  highway  proposed  to  be  occupied." 
Mayor,  etc. ,  of  Houston  v.  Houston  City  St. 
R.  Co.,  50  Am.  &*  Eng.  R.  Cas.  380,  83  Tex. 
548, 19  5.  W.  Rep.  127.— Following  Gulf 
City  St.  R.  Co.  V.  Galveston  City  R.  Co., 
65  Tex.  502. 

00.  Extent  to  which  municipality 
uiuy  impose  conditions.— The  right  of  a 
municip.ility,  under  the  statute,  to  refuse  its 
consent  to  the  operation  of  a  street  railway 
in  its  streets  is  an  absolute  one,  and  its 
power,  in  the  first  instance,  to  impose  con- 
ditions is  unlimited,  and  in  the  imposition 
of  further  conditions  after  giving  such  con- 
sent it  is  only  necessary  that  it  keep  within 
the  scope  of  the  reservation  in  the  original 
ordinance.  Detroit  v.  Ft.  Wayne  &*  B.  I.  R. 
Co.,  95  Mich.  456,  54  A^.  W.  Rep.  958. 

Under  New  York  Constitution,  and  the 
Act  of  1886,  ch.  65,  as  amended  in  the  same 
year  by  ch.  642,  relating  to  selling  the  right 
to  construct  street  railroads,  municipal  au- 
thorities have  the  absolute  power  to  grant 
or  withhold  their  consent  to  the  construction 
of  a  road,  and  may  impose  any  condition 
which,  in  the  exercise  of  their  discretion, 
they  deem  proper.  People  ex  rel.  v.  Bar- 
nard. 36  Am.  &*  Eng.  R.  Cas.  70,  no  A^.  Y. 
548,  18  A^.  £•.  Rep.  354.  18  A^.  Y.  S.  R.  542  ; 
rcversiftg  48  Hun  57,  15  A''.  Y.  S.  R.  689. 


STREET   RAILWAYS,  01-03. 


387 


I 

r 


A  common  council  required,  as  a  con- 
dition to  its  consent,  that  the  purchaser  of  a 
street>railroad  franchise  should  carry  pas- 
sengers, fur  a  single  fare,  tu  and  from  points 
beyond  the  termini  of  the  proposed  route 
over  the  road  of  other  street  railways.  Held, 
that  this  was  a  condition  whicli  it  had  a 
right  to  impose.  People  ex  rel.  v.  Barnard, 
36  Am.  &^  Eng.  R.  Cas.  70,  1 10  N.  Y.  548, 
18  .V.  E.  Rep.  354,  18  A^.  Y.  S.  R.  542;  re- 
versing 48  Hun  57,  1 5  TV.  Y.  S.  R.  689. 

Municipal  authorities  may  impose  reason- 
able conditions  to  the  giving  of  their  con- 
sent to  the  building  of  a  street  railway,  in 
addition  to  those  imposed  by  New  York  Act 
of  1890,  ch.  505,  as  amended  in  1892,  ch.  676, 
provided  they  do  not  contravene  the  statute, 
nor  relate  to  matters  over  which  other 
bodies  have  complete  control.  Abra/tam  v. 
Meyers,  29  Abb.  N.  Cas.  {N.  i  .)  384. 

Where  the  statute  requires  street  rail- 
roads to  be  constructed  within  three  years, 
a  condition  imposed  by  a  municipality,  in 
graniing  its  consent,  that  the  purchaser  of 
the  franchise  of  a  road  that  will  cost  at  least 
$2,000,000 shall  deposit  one  half  the  amount, 
and  expend  the  same  within  two  years,  is 
not  unreasonable  or  unlawful.  Abraham 
v.  Meyers,  29  Abb.  N.  Cas.  {N.  Y.)  384. 

The  charter  of  a  company  subjected  the 
construction  and  use  of  its  track  to  the 
"assent  of  the  city  council,  upon  such  terms 
and  conditions,"  etc.,  "as  said  city  council 
may  impose."  Held,  that  this  was  sufficient 
authority  for  the  imposition,  by  the  city,  of 
a  money  payment  for  the  use  of  the  streets. 
Providence  v.  Union  R.  Co.,  12  R.  I.  473. 

01.  Natiiie  of  municipal  consent. 
— Since  the  adoption  of  the  Constitution  of 
1870,  the  right  to  create  and  perfect  a  street- 
car franchise  rests  in  both  the  state  and  the 
municipality,  and  the  consent  of  the  latter 
wnei)  granted  is  a  part  of  the  franchise  ;  and 
the  fact  that  the  ordinance,  when  accepted 
by  the  company,  created  a  contract  between 
the  parties  does  not  aflect  this  view.  The 
charter  of  defendant  is  in  a  sense  just  as 
much  a  contract  with  the  state  as  is  the 
ordinance  with  the  municipality.  Citizens' 
Horse  R.  Co.  v.  Belleville,  47  ///.  App.  388. 

Where  a  city  authorizes  a  company  to 
construct  a  road  on  certain  streets  within  a 
fixed  time,  the  privilege  must  be  used,  if  at 
all,  during  the  time  limited.  The  permis- 
sion thus  conferred  is  a  mere  license  and 
not  .a  contract ;  and  if  the  road  is  not  built 
within  tlie  time,  no  act  of  revocation  or 


declaration  of  forfeiture  is  required  to  ter- 
minate the  same.  Atchison  St.  R.  Co.  v. 
Nave,  36  Am.  &*  Eng.  R.  Cas.  29,  38  Kan. 
744,  17  Pac.  Rep.  587. 

When  an  act  of  assembly  incorporating  a 
city  passenger  railway  provides  that  per- 
mission must  be  obtained  from  the  local 
authurities,  who  can  prescribe  reasonable 
conditions,  before  the  road  is  constructed, 
a  municipal  ordinance  passed  under  the 
authority  of  the  act  and  accepted  by  the 
company  becomes  the  contract  between 
the  railway  company  and  the  municipality. 
Norristown  v.  Norristown  Pass.  R.  Co.,  148 
Pa.  St.  87,  23  Atl.  Rep.  1060. 

U2.  Proper  local  authorities  to 
consent.  —  Under  N.  Y.  Street  Surface 
Railway  Act  of  1884,  ch.  252,  §  3,  which  au- 
thorizes companies  organized  under  it  to 
acquire  a  right  of  way  through  streets  or 
highwa)'s,  provided  that  "  the  consent  of  the 
local  authorities  having  control  of  that  por- 
tion of  a  street  or  highway  upon  which  it  is 
proposed  to  construct  and  operate  such 
railroad  *  ♦  *  be  first  obtained,"  where  the 
railroad  is  proposed  to  be  constructed  upon 
a  highway  in  a  town,  the  "  local  authorities  " 
whose  consent  is  required  are  the  officers 
whose  duties  and  powers  relate  to  the 
supervision,  care,  aad  maintenance  of  the 
highway,  i.  e.,  the  highway  commissioners 
of  the  town.  In  re  Rochester  Elec.  R.  Co.,  46 
Am.^*  Eng.  R.  Cas.  157,  123  N.  Y.  351,  25 
N.  E.  Rep.  381.  33  N.  Y.  S.  R.  695  ;  ciffirm' 
'»£  57  Hun  56,  32  N.Y.S.R.i,  10  N.  Y. 
Supp.  379. 

Under  N.  Y.  Act  of  1890,  ch.  565,  pro- 
viding that  consent  in  cities  to  the  building; 
of  street  railways  shall  be  given  by  the 
common  council,  subject  to  veto  by  the 
mayor,  it  is  not  necessary  that  a  full  boara 
of  aldermen  act  in  the  first  instance  in  the 
matter.  It  is  sufficient  if  the  matter  goes 
before  a  committee  of  the  board,  and  their 
report  is  afterward  approved.  Abraham  v. 
Meyers,  29  Abb.  N.  Cas.  (N.  Y.)  384. 

The  supervisor  of  an  independent  road 
district  is  the  proper  local  authority  to  con- 
sent, or  to  refuse  consent,  to  the  occupa- 
tion of  its  highways  by  a  street  railway, 
under  Pa.  Act  of  1889.  Such  district  is  a 
part  of  the  township,  and  is  included  within 
the  meaning  of  that  word  as  used  by  the 
Constitution  and  the  act  of  1889.  Hain  v. 
Lebanon  &'  A.  St.  R.  Co.,  i  Pa.  Dist.  452. 

93.  Granting  consent  by  popular 
vote.- -Where  the  question  of  giving  con- 


i 


388 


STREET   RAILWAYS,  04-96. 


sent  to  a  company  to  construct  and  maintain 
a  street  railroad  upon  the  streets  of  a  city  is 
submitted  to  the  electors  of  tiie  city  on  the 
day  of  the  general  election,  and  the  ballot 
upon  that  proposition  is  tiiken  at  the  same 
place,  by  the  same  election  otBceis,  and  but 
one  poll  list  made,  and  alt  the  votes  are 
canvassed  and  returned,  in  some  of  the 
precincts  and  wards,  upon  the  same  tally 
sheet  and  return,  but  in  all  of  the  wards  a 
separate  ballot  box  is  prepared  into  which 
the  votes  upon  the  proposition  arc  deposited, 
but  without  other  formality  to  separate  the 
vote  of  the  general  election,  in  order  to  give 
the  required  consent  the  affirmative  of  the 
proposition  must  receive  a  majority  of  all 
the  votes  cast.  State  ex  rel,  v.  Bcchel,  22 
Neb.  158,  34  M  W.Kep.  342. 

04.  Declaring  grant  Ibrl'eited  and 
withdrawn. — Where  a  company  is  author- 
ized by  the  legislature  to  construct  and 
operate  a  railroad  through  the  streets  of  a 
city,  and  the  common  council  thereof  gives 
its  assent,  on  certain  conditions,  it  has  no 
power  to  annul  or  impair  the  grant  on  ac- 
count of  a  failure  to  complete  the  road 
within  the  time  limited  by  the  conditions. 
Brooklyn  C.  li.  Co.  v.  Brooklyn  City  R.  Co., 
32  Barb.  (N.  V.)  358.  —  Following  At- 
torney-General V.  Mayor,  etc.,  of  N.  Y.,  3 
Duer  119.— Applied  in  Brooklyn  City  R. 
Co.  V.  Furey,  4  Abb.  Pr.  N.  S.  (N.  Y.)  364. 
Distinguished  in  Atlantic  &  P.  R.  Co.  v. 
St.  Louis,  66  Mo.  228.  Explained  in 
Brooklyn  City  &  N.  R.  Co.  v.  Coney  Island 
&  B.  R.  Co.,  35  Barb.  364.  Quoted  in 
Atlantic  &  P.  R.  Co.  v.  St.  Louis,  66  Mo. 
228;  Hovelman  v.  Kansas  City  Horse  R. 
Co.,  20  Am.  &  Eng.  R.  Cas.  17,  79  Mo.  632 ; 
People  V.  O'Brien,  36  Am.  &  Eng.  R.  Cas. 
78,  ill  N.  Y.  I,  18  N.  E.  Rep.  692,  19  N.  Y. 
S.  R.  173. 

A  condition  that  a  street  railroad  shall  be 
completed  within  a  stated  time  is  a  condi- 
tion subsequent,  and  the  franchise  vests  in 
llie  company,  subject  to  be  defeated  for  a 
Jailure  to  comply  with  the  condition  ;  but 
such  failure  does  not  ipso  facto  defeat  the 
franchise,  but  makes  it  liable  to  be  defeated 
at  the  election  of  the  grantor,  which  must 
be  declared  by  judicial  decision.  Brooklyn 
C.  R.  Co.  v.  Brooklyn  City  R.  Co.,  32  Barb. 
{N.  Y.)  358. 

And  the  question  whether  the  acts  ol  the 
grantor  have  amounted  to  a  waiver  of  the 
conditions  imposed  can  only  be  determined 
by  the  judgment  of  a  court,  and  not  by 


individuals.    Brooklyn  C.  R.  Co.  v.  Brook- 
lyn City  R.  Co.,  32  Barb.  (N.  Y.)  358. 

05.  Bight  to  use  street  or  high- 
way without  consent.— Under  a  pro- 
vision in  the  charter  of  a  street-car  com- 
pany that  it  should  not  "  use  any  portion 
of  any  railroad,  turnpike,  or  artificial  road," 
except  for  crossings,  without  consent  of  the 
owners,  it  cannot  use  a  graded  and  paved 
street  without  consent  of  the  city.  Com. 
V.  Central  Pass.  R,  Co.,  52  Pa.  St.  506. 

A  company,  incorporated  under  Pa.  Act 
of  May  10,  1889,  has  no  right  to  construct 
its  railway  within  the  limits  of  a  bjrough, 
upon  the  bed  of  a  turnpike  road,  witii  the 
consent  of  the  turnpike  company,  and  with- 
out the  consent  of  the  borough  authorities. 
St  celt  on  V.  East  Harrisburg  Pass,  R.  Co.,  i 
Pa.  Dist.  667. 

00.  Consent  to  extensions.  —  Where 
the  municipal  authorities  iiave  consented  to 
the  extension  of  a  street  railroad,  the  work 
of  extension  will  not  be  restrained  because 
the  proper  street  committee  has  not  defined 
the  exact  location  of  the  tracks.  Trenton 
V.  Trenton  Horse  R.  Co.,  {N.  J,  Eg.)  19  At  I. 
Rep.  263. 

Written  acceptance  by  a  street-car  com- 
pany of  the  provisions  of  a  city  ordinance, 
granting  it  the  right  to  extend  its  road, 
with  the  condition  that  it  waives  no  vested 
rights  under  its  charter,  is  an  ample  ac- 
ceptance, and  does  not  change  the  riglits  of 
the  parties.  Trenton  v.  Trenton  Horse  R. 
Co.,  {N.J.  Eg.)  ig  Atl.  Rep.  263. 

A  company  by  its  charier  was  authorized 
to  occupy  certain  streets  of  a  city  with  con- 
sent of  councils,  and  such  consent  should 
be  taken  to  be  given  if  councils  did  not 
within  thirty  days  signify  their  disapproval. 
Councils,  within  the  time  limited,  declared 
their  disapproval,  but  provided  that  if  the 
company  would  bind  itself  to  be  subject  to 
all  ordinances  passed  or  to  be  passed  the 
disapproval  should  have  no  effect.  The 
company  so  agreed.  By  Pa.  Act  of  March 
22,  1865,  the  company  was  authorized  to  ex- 
tend its  road  on  certain  streets,  subject  to 
all  the  limitations  and  restrictions,  and  with 
all  the  privileges  granted  under  the  act  of 
incorporation.  Subsequent  ordinances  re- 
quired the  consent  of  councils  for  the  lay- 
ing of  railway  tracks.  Held,  that  the  com- 
pany was  subject  to  the  ordinances  passed 
subsequent  to  the  act  of  1865.  Philadelphia 
v.  Citizens'  Pass,  R.  Co.,  56  Am.  6-  Eng.  R. 
Cas.  503,  151  Pa.  St.  128,  34  Atl.  R*p,  1099. 


STREET   RAILWAYS,  97-100. 


389 


When  a  charter  requires  the  consent  of 
the  city  council  for  any  extension  of  ilie 
railway  lines,  and  a  supplement  authorizes 
the  extension  of  the  road  without  consent, 
a  second  supplement  which  is  silent  as  to 
consent  is  to  be  taken  subject  to  the  require- 
ment of  the  charter  that  consent  shall  be 
obtained.  Philadelphia  v.  Citizens'  Pass.  K. 
Co.,  56  Am.  &^  Eng.  R.  Cas.  503,  1 5 1  Pa.  St. 
128,  24  Atl.  Rep.  1099.  Philadelphia  v. 
Lombard  &»  S.  St.  Pass.  R.  Co.,  4  Brews. 
(Pa.)  14. 

97.  Joint  nse  of  track.— Where  there 
are  two  companies,  each  empowered  to  con- 
struct a  railroad  through  a  city  to  a  ferry, 
and  instead  of  separate  tracks  consent  is 
given  to  one  company  to  lay  its  track  on  a 
particular  route,  upon  condition  that  the 
other  shall  have  the  joint  use  of  it  on  cer- 
tain terms,  the  first  company  takes  its  fran- 
chise burdened  with  that  condition,  and  the 
other  is  authorized  to  operate  the  same 
kind  of  a  road  to  the  same  locality.  Jersey 
City  fi-  H.  H.  R.  Co.  \.  Jersey  City  &*  B.  R. 
Co.,  21  N.J.  Eg.  550;  reversing  20  N.  J. 
Eg.  61. 

In  such  case  the  ordinance  did  not  ex- 
pressly state  that  the  second  company 
should  be  liable  to  contribute  to  the  ex- 
pense of  laying  the  track,  or  pay  for  its 
use ;  but  it  provided  that  in  case  of  dis- 
agreement as  to  the  expense  or  manner  of 
laying  the  tracks,  or  the  use  thereof,  such 
disagreement  should  be  settled  by  the  com- 
mon council.  Held,  that  this  presupposed 
an  agreement  by  the  parties  concerning  the 
construction  of  the  tracks,  or  an  equivalent 
for  the  use,  witli  the  condition  in  case  of 
dispute  to  leave  the  matter  to  the  common 
council.  Jersey  City  &*  H.  H.  R.  Co.  v. 
Jersey  City  ^^  B.  R.  Co.,  21  N.  J.  Eg.  550; 
reversing  20  A'^,  J.  Eg.  61. 

In  such  case  the  failure  of  the  companies 
to  agree  does  not  defeat  the  right  to  use  the 
track  jointly.  The  right  continues  and  the 
disagreement  is  to  be  settled  by  the  com- 
mon council.  Jersey  City  &•  H.  H.  R.  Co. 
V.Jersey  City  (S^  B.  R,  Co.,  21  N.  J.  Eg.  550 ; 
renter  sing  20  A^  J.  Eg.  61. 

Where  two  companies  are  authorized  to 
use  a  track  jointly  the  fact  that  one  com- 
pany ceases  to  use  the  track  for  a  few 
months  while  it  is  in  dispute  cannot  be  taken 
as  an  abandonment  of  the  track.  Jersey 
City  &•  H.  H.  R.  Co.  v.  Jefsev  City  &-  /?.  /.'. 
Co.,  21  N.  J.  Eg.  550;  reversing  20  A'.  /. 
Kg.  61. 


98.  Legislative  confirmation  of 
niiiiiicipal  consent.  —  Where  the  com- 
mon council  of  a  city  passes  a  resolution 
authorizing  the  construction  of  a  street 
railroad,  and  the  legislature  subsequently 
passes  an  act  to  confirm  the  grant  and  to 
authorize  the  road,  it  njust  be  taken  that  it 
was  the  intention  of  the  legislature  to  make 
valid  the  grant  of  the  city,  whether  regular 
or  irregular,  whether  valid  or  invalid,  and 
whether  the  consent  of  the  city  was  sufficient 
or  not.  And  the  effect  of  the  act  is  a  legis- 
lative declaration  and  adjudication  that  such 
consent  was  intended  to  be  given.  People  v. 
Law,  34  Barb.  (N.  Y.)  494.  22  How.  Pr.  109. 

That  act  intended  to  confer,  and  actually 
conferred,  an  original  grant  of  power  to 
construct  said  railroad.  It  had  that  effect, 
independent  of  the  consent  of  the  common 
council ;  and  it  was  effectual  in  form  to  ac- 
complish that  purpose.  People  v.  Law,  34 
Barb.  (N.   Y.)  494,  22  Ho^v.  Pr.  109. 

99.  Laying  track  different  from 
terms  of  consent.— Where  a  company  is 
incorporated  to  construct  a  road,  subject  to 
the  consent  of  the  city,  and  by  an  ordi- 
nance of  the  city  all  railway  companies  are 
required  to  submit  a  plan  to  a  board  of  sur- 
veyors of  the  city,  and  such  plan  is  submitted 
and  approved,  which  shows  that  the  track 
is  to  be  laid  in  the  middle  of  a  street,  the 
company  has  no  right  to  lay  its  track  on  the 
side  of  the  street,  and  may  be  enjoined  from 
doing  so.  Philadelphia^.  Continental  Pass. 
R.  Co.,  II  Phila.  (/'<».)  315. 

100.  PiililiHiiing  notice  of  applica- 
tion or  of  consent.— Under  III.  Act  in 
regard  to  horse  and  dummy  railroads,  ap- 
proved March  9, 1874,  the  city,  town,  or  vil- 
lage authorities  are  prohibited  from  giving 
consent  to  construct  and  operate  a  horse 
railroad  in  the  streets,  unless  at  least  ten 
days'  public  notice  of  the  time  and  place  of 
presenting  the  petition  shall  first  have  been 
given  by  publication  in  "-ome  newspaper 
published  in  the  city  or  county  where  such 
road  is  to  be  constructed.  The  publication 
of  the  report  of  a  committee  recommend- 
ing the  granting  of  such  leave,  ten  days  be- 
fore the  adoption  of  an  ordinance  authoriz- 
ing the  construction  of  such  road,  and  the 
publication  of  the  ordinance,  is  not  a  com- 
pliance with  the  statute.  Metropolitan  City 
R.  Co.  V.  Chicago,  2  Am.  &•  Eng.  R.  Cas. 
291,  96  ///.  620. 

What  is  known  as  the  Consolidation  Act, 
?  cSo,  providing  that  no  resolution  or  ordi- 


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390 


STREET   RAILWAYS,  101-104. 


nance  of  the  aldermen  of  New  York  city 
contemplating  "  the  alienation,  or  appro- 
priation, or  leasing  of  any  property  of  the 
city  "  shall  be  adopted,  until  the  same  has 
been  published  in  a  certain  way,  does  not 
apply  to  a  resolution  giving  the  consent 
of  the  city  to  the  building  of  a  street 
railroad.  Abraham  v.  Meyers,  29  Abb.  N. 
Cas.  (N.  Y.)  384. 

101.  Filing  and  recordint;  consent. 
— In  Maine,  before  the  construction  of  a 
road  across  a  city  street  the  written  assent 
of  the  mayor  and  aldermen  must  be  ob- 
tained, stating  the  manner  and  conditions 
upon  which  such  crossing  may  be  made ; 
and  this  must  be  recorded  in  the  county 
commissioners'  office.  But  the  provision 
requiring  it  to  be  recorded  is  merely  direct- 
ory, and  does  not  constitute  a  condition  prec- 
edent, to  be  performed  before  the  company 
is  authorized  to  proceed  with  the  construc- 
tion of  its  road.      Veazie  v.  Mayo,  45  Me.  560. 

New  York  Act  of  1884,  ch.  252,  §  4,  rela- 
tive to  the  construction  of  street  surface 
railways  in  cities,  towns,  and  villages,  which 
declares  that  the  consent  of  the  local  au- 
thorities shall  in  all  cases  be  filed  in  the  of- 
fice of  the  county  clerk  of  the  county  in 
which  said  railroad  is  located,  does  not  make 
it  necessary  to  allege  that  such  consent  has 
been  filed  as  a  condition  precedent  to  an  ap- 
plication for  the  appointment  of  commis- 
sioners. In  re  People's  A*.  Co.,  38  Am.  &• 
Eng.  R.  Cas.  404, 112  A'^.  V.  578,  20  A^.  E. 
Rep.  367,  21  A^.  Y.  S.  R.  496 ;  affirming  48 
Hun  617,  mem. 

Pa.  Act  of  May  14,  1889,  §  4,  places  no 
restriction  as  to  the  filing  by  a  street-rail- 
way company,  in  the  office  of  the  secretary 
of  the  commonwealth,  an  exemplification 
of  a  resolution  extending  its  route,  except 
that  the  company  must  name  in  the  ex- 
emplification the  streets  and  highways  on 
which  it  desires  to  operate.  In  re  Easton 
Transit  Co.,  2  Pa.  Dist.  649. 

The  limitation  of  the  statute  requiring  the 
consent  of  the  local  authorities  before  be- 
ginning the  construction  of  the  road  refers 
to  the  construction  of  the  road,  and  not  to 
the  filing  of  the  exemplification  ;  and  where 
there  is  a  dispute  as  to  the  proper  location 
and  the  consent  of  local  authorities,  the 
secretary's  department  will  not  determine 
the  dispute,  but  will  permit  the  exemplifica- 
tion to  be  filed,  and  let  the  parties  settle 
their  controversies  in  the  courts.  In  re 
EasloH  Transit  Co.,  2  Pa.  Dist.  649. 


3.  Consent  of  Abutting  Owners. 

102.  May  be  authorized  witlioiit 
consent. — A  grant  of  authority  to  lay  and 
operate  a  railway  in  the  streets  of  a  city, 
without  requiring  the  consent  of  owners  of 
property  along  the  route,  is  lawful.  It  does 
not  conflict  with  that  clause  of  the  Con- 
stitution requiring  compensation  to  be  first 
made.  Paterson  &*  P.  Horse  R.  Co.  v. 
Mayor,  etc. ,  of  Paterson,  24  A'^,  /.  Eq.  1 58. 

The  legislature  has  the  power  to  confer 
the  privilege  of  building  and  using  a  horse 
railroad  in  the  streets  of  the  city  of  Brook- 
lyn, without  the  consent  of  the  owners  of 
the  soil  over  which  the  streets  are  laid  out, 
because  such  a  use  of  the  street  is  merely  a 
mode  of  exercising  the  public  right  of 
travel,  and  not  an  appropriation  of  the 
property  of  the  owners  of  the  land,  requir- 
ing compensation  in  damages.  Brooklyn 
Cily  &-  N.  R.  Co.  v.  Coney  Island  &•  B.  R. 
Co.,  35  Barb.  {N.  Y.)  364.  —  Following 
Brooklyn  C.  A  J.  R.  Co.  v.  Brooklyn  City 
R.  Co.,  33  Barb.  420. 

103.  Consent  not  required.  —  The 
consent  of  property  owners  provided  for  in 
Ohio  Act  of  1866,  as  amended  in  1868,  to 
the  construction  and  operation  of  a  new 
street  railroad  is  not  required  since  the 
amendment  of  section  412  of  the  Municipal 
Code  (67  Ohio  L.  77) ;  and  the  consent  men- 
tioned in  that  section,  by  whomsoever  ob- 
tained, enures  to  the  benefit  of  the  lowest 
bidder.  State  ex  rel.  v.  Bell,  34  Ohio  St.  194, 
21  Am.  Ry.  Rep.  84. 

A  street-railway  company  organized  under 
Tenn.  General  Incorporation  Act  of  1875, 
ch.  142,  §  13,  having,  by  lawful  contract 
with  the  city,  permission  to  construct  its 
road  over  the  public  streets,  is  not  required, 
in  addition,  to  obtain  consent  of  abutting 
lot  owners  where  they  do  not  own  the  fee  in 
the  street,  or  in  any  case  where  the  proposed 
road  is  not  of  a  character  to  be  an  addi- 
tional burden  upon  the  fee  in  the  street. 
Smith  V.  East  End  St.  R.  Co.,  38  Am.  &* 
Eiig.  R.  Cas.  470,  87  Tenn.  626,  11  S.  W. 
Rep.  709. 

104.  Acquiescence  as  evidence  of 
consent. —  ^Vhere  the  right  to  allow  a  city 
railway  in  a  street  is  made  to  depend  upon 
obtaining  the  consent  of  the  owners  of  two 
thirds  of  the  property  on  such  street,  by 
lineal  measure,  after  the  lapse  of  over  ten 
years,  and  the  acquiescence  of  property 
holders,  and  the  destruction  of  all  written 


STREET    RAILWAYS,  105,  100. 


391 


evidences  by  fire,  slight  evidence  is  suffi- 
cient to  establisli  the  fact  of  consent.  Chi- 
cago City  R.  Co.  V.  People  ex  rel.,  73  ///.  541. 

Under  a  charter  requiring  that  before  a 
railway  should  be  constructed  in  the  streets 
of  a  city  the  consent  of  a  majority  of  the 
property  owners  along  the  proposed  route, 
and  also  of  the  city,  should  be  first  obtained, 
the  consent  of  such  majority  is  not  a  condi- 
tion precedent  to  the  consent  of  the  city. 
The  two  consents  are  independent.  In  such 
case,  the  acquiescence  of  the  property  own- 
ers, in  standing  by  without  protest  and  see- 
ing the  company  construct  and  operate  its 
road  under  a  claim  of  right,  will  be  re- 
garded as  evidence  of  consent.  Paterson 
&*  P.  Horse  R,  Co.  v.  Mayor,  etc.,  of  Paterson, 
2\N.J.Eq.  158.— Distinguished  in  Mere- 
dith V.  Sayre,  32  N.  J.  Eq.  557  ;  Cape  May  & 
S.  L.  R.  Co.  V.  Cape  May,  9  Am.  &  Eng.  R. 
Cas.  474.  35  N.  J.  Eq.  4'9- 

105.  Consent  to  lay  track  opposite 
public  square. — For  the  purpose  of  con- 
sent, required  by  the  charter  of  a  street- 
railroad  company  to  be  obtained  from  prop- 
erty owners  along  the  proposed  route  of  the 
railway  before  it  can  be  laid,  the  city  corpo- 
ration is  to  be  regarded  as  the  owner  of  an 
open  public  square  dedicated  to  the  public 
use  forever,  whether  the  fee  be  in  the  cor- 
poration or  not,  or  in  whomsoever  it  may 
be.  Paterson  &*  P.  Horse  R.  Co.  v.  Mayor, 
etc.,  of  Paterson,  24  N.  J.  Eq.  1 58. 

100.  When  consent  a  condition 
precedent. — The  power  conferred  by  111. 
General  Incorporation  Act  upon  the  com- 
mon councils  of  cities  to  grant  the  use  of 
streets  for  railway  purposes  lies  dormant, 
and  cannot  be  exercised  until  the  requisite 
number  of  lot  owners  along  the  street  au- 
thorize its  exercise,  by  petition.  When  this 
is  done,  the  council  is  invested  with  power 
to  act,  and  not  before ;  and  this  applies  to 
all  railroads,  whether  operated  by  horse  or 
steam  power.  Hunt  v,  Chicago  H.  &•  D.  R. 
Co.,  121  ///.  638,  \iN.  E.  Rep.  176,  II  West. 
Rep.  45 ;  affirming  in  part  20  ///.  App.  282. 

The  act  for  the  incorporation  of  cities 
and  villages,  art.  5,  §  i,  par.  90,  prohibiting 
the  grant  to  any  steam  or  horse  railway 
company  of  the  right  to  lay  any  railroad 
tracks  in  any  street  except  upon  a  petition 
of  the  owners  of  the  land  representing  more 
than  one  half  of  the  frontage  of  the  street, 
is  a  limitation  upon  the  power  granted  by 
paragraphs  9, 24  and  25  of  the  same  section. 
Hunt  V.  Chicago  H.  &*  D.  R.  Co.,  121  HI. 


638,  13  A'.  E.  Rep.  176,  II  West.  Rep.  45  ; 
affirming  in  part  20  ///.  App.  282. 

The  above  paragraph  is  not  repealed  jy 
the  act  of  March  19,  1874,  entitled  "An 
act  in  regard  to  horse  and  dummy  railroads," 
there  being  no  inconsistency  between  their 
provisions.  Hunt  v.  Chicago  H.  &*  D.  R. 
Co.,  121  ///.  638,  \iN.  E.  Rep.  176,  II  West. 
Rep.  45  ;  affirming  in  part  20  ///.  App.  282. 

Where  a  company  is  enjoined  from  con- 
structing a  horse  railroad  on  the  ground 
that  it  has  not  obtained  the  consent  of  a 
majority  of  the  abutting  property  owners, 
as  required,  which  ground  is  denied  by  the 
defendant's  answer,  the  answer  to  be  good 
must  set  out  the  names  of  the  property 
owners  who  consent,  and  show  that  they 
are  a  majority.  Brooklyn  City  &•  N.  R. 
Co.  V.  Coney  Island  &*  B.  R.  Co.,  35  Barb. 
i,N.  Y.)  364. 

Under  New  York  Act  of  1854,  ch.  140, 
which  prohibits  cities  from  giving  their 
consent,  where  the  railroad  begins  and  ends 
in  the  city,  unless  a  majority  of  the  prop- 
erty owners  upon  the  street  have  also  con- 
sented, a  consent  given  by  the  municipality 
without  the  consent  of  such  property  own- 
ers is  a  nullity.  Schaper  v.  Brooklyn  6^  L. 
I.  C.  R.  Co.,  4  N.  V.  S.  R.  860, 42  Hun  657  ; 
affirmed  in  124  //.  V.  630,  mem.,  3  Silv.  App. 
335,  26  N.  E.  Rep.  311,  35  A^.   Y.  S.  R.   112. 

The  exception  provided  for  in  the  charter 
of  the  city  of  Brooklyn  (Laws  1873,  ch.  863, 
title  19,  §  23)  of  "  such  other  companies  as 
are  or  may  be  authorized  by  law"  means 
those  authorized  by  special  act,  and  the  de- 
fendant is  not  so  authorized.  Schaper  v. 
Brooklyn  &*  L.  I.  C.  R.  Co.,  4  A^.  Y.  S.  R. 
860,  42  Hun  657;  affirmed  in  124  A'.  K  630, 
mem.,  3  Silv.  App.  335,  26  A^.  E.  Rep.  311, 
35  A^.  Y.  S.  R.  112. 

Repealing  legislation  which  should  dis- 
pense with  the  existing  requirement  of  con- 
sent by  the  property  owners  would  be  as 
unconstitutional  as  affirmative  legislation 
assuming  to  authorize  the  building  of  street 
railroads  without  such  consent.  Schaper  v. 
Brooklyn  &>  L.  I.  C.  R.  Co.,  4  A':  Y.  S.  R. 
860,  42  Hun  657 ;  affirmed  in  124  N.  Y.  630, 
mem.,  3  Silv.  App.  335,  26  A';  E.  Rep.  311, 
35  M  Y.S.R.  112. 

Under  Ohio  Act  of  i860,  §  15,  a  majority 
in  interest  of  the  property  holders  must 
consent  to  the  building  of  a  street  railroad, 
to  be  determined  by  reference  to  the  as- 
sessed value  of  the  property  located  on  the 
street  or  avenue.    Held,  that  the  action  of 


392 


STRl.ET   RAILWAYS,  107-112. 


S, 

I-' 

I     1 

u 

1  :t' '  ■ 

1' 

'  '  i       \ 

]-' 

4;  ; 

the  city  council  in  granting  permission  is 
not  conclusive  as  against  tiie  property  own- 
ers. Robtrts  V.  Easton,  19  Ohio  St.  78. — Re- 
viewed IN  Cincinnati  College  v.  Nesmith, 
2  Cin.  Super.  Ct.  24. 

107.  Consent  to  one  track  does 
not  authorize  a  second.— The  fact  that 
a  majority  in  interest  of  the  abutting  prop- 
erty owners  have  consented  to  a  single 
track  is  not  sufficient  to  authorize  a  double 
track  a  year  later,  when  others  may  have  be- 
come property  owners  on  the  street.  Roberts 
V.  Easton,  19  Ohio  St.  78. 

108.  Burden  on  company  to  hIiow 
consent. — As  a  railroad  constructed  in  a 
public  street  without  authority  would  be  a 
public  nuisance,  the  burden  of  proof  is 
upon  the  company  claiming  the  right  to 
construct  it  to  show  that  it  has  such 
authority.  Hilton  v.  Thirty-fourth  St.  R. 
Co.,  I  How.  Pr.  N.  S.  (N.  Y.)  453. 

109.  Change  of  location.— Plaintiff 
granted  a  right  of  way  to  a  street  railroad 
to  lay  a  track  in  the  highway  in  front  of  his 
premises,  and  in  pursuance  of  such  grant 
the  railroad  was  located  it.  the  centre  of  the 
street.  Held,  that  such  location  was  a  prac- 
tical location  of  the  right  of  way,  and  that 
defendant  could  not  afterwards,  by  virtue  of 
such  grant,  take  up  the  track,  and  lay  a  new 
track  between  the  sidewalk  and  the  curb. 
McCruden  v.  Rochester  R.  Co.,  25  M  Y. Supp. 
114,  5  Misc.  59;  affirmed  in  77  Hun  609. — 
Following  Edridge  v.  Rochester  City  & 
B.  R.  Co.,  54  Hun  194,  7  N.  Y.  Supp.  439. 

110.  Consent  of  either  abutters 
or  city. — Where  a  charter  provides  that  a 
street  railroad  may  be  located  in  any  street, 
with  the  consent  of  the  city  council,  or  of  a 
majority  of  the  abutters,  consent  of  either 
is  sufficient.  Brooklyn  City&*  N.  R.  Co.  v. 
Coney  Island  &- B.  R.  Co.,  35  Barb.  (N.  Y.) 
364.— Following  Brooklyn  C.  &  J.  R.  Co. 
V.  Brooklyn  City  R.  Co.,  33  Barb.  (N.  Y.) 
420. 

111.  Enjoining  company  that  pro- 
ceeds without  consent.— Where  a  com- 
pany chartered  under  New  York  Rapid 
Transit  Act  of  1875  has  not  obtained  the 
consent  of  the  municipal  authorities,  or  of 
commissioners,  or  the  abutting  property 
owners,  it  has  no  right  in  the  street  that 
it  can  enforce  by  injunction  to  prevent 
another  company  from  constructing  the 
road.  New  York  Cable  R.  Co.  v.  Forty- 
second  St.,  M.  &*  St.  N.  A.  R.  Co..  13  Daly 
(N.  Y.)  118. 


Where  a  statute  provides  that  city  au- 
thorities shall  not  permit  the  construction 
of  a  street  railroad  without  the  consent  of 
a  majority  in  interest  of  the  property  owners, 
any  abutting  property  owner  may  enjoin  the 
construction  of  a  road  until  such  consent  is 
obtained.     Roberts  v.  Easton,  19  Ohio  St.  78. 

112.  Either  consent  or  condemna- 
tion necessary  in  New  York.— Under 
N.  Y.  Const,  art.  3,  §  18,  providing  that  "  no 
street  railroad  shall  be  authorized  by  law 
without  the  consent  of  a  fixed  proportion 
of  adjacent  property  owners,  or,  if  that  can- 
not be  had,  without  the  determination  of 
commissioners  appointed  by  the  general 
term  "  and  the  confirmation  of  their  report, 
a  report  by  commissioners  has  no  force  until 
confirmed  ;  and  it  is  discretionary  with  the 
general  term  to  confirm  the  report  or  not, 
and  their  decision  is  not  reviewable  on  ap- 
peal. In  re  Kings  County  El.  R.  Co.,  2  Am. 
<&-  Eng.  R.  Cas.  431,  82  N.  Y.  95  ;  dismissing 
appeal  from  20  Hun  217.— Applying  In  re 
New  York  C.  &  H.  R.  R.  Co..  64  N.  Y.  60; 
In  re  New  York  El.  R.  Co.,  70  N.  Y.  327,— 
Quoted  in  Rt  Union  El.  R.  Co.,  112 
N.  Y.  61.  19  N.  E.  Rep.  664.  20  N.  Y.  S.  R, 
498,  51  Hun  644,  2  L.  R.  A.  359.  Re- 
viewed IN  Re  East  River  B.  &  C.  I.  S.  T. 
Co.,  26  Hun  490. 

Under  the  above  constitutional  provision 
and  N.  Y.  Act  of  1884,  ch.  252,  where  the 
court  is  applied  to  for  the  appointment  of 
commissioners  it  cannot  go  into  the  ques- 
tion of  the  utility  of  the  proposed  road  ;  nor 
can  it  refuse  the  application  because  another 
company  has  refused  its  consent.  In  re 
Thirty- fourth  St.  R.  Co.,  102  A'.  Y.  343,  7 
N.  E.  Rep.  172,  2  A'.  Y.  S.  R.  33  ;  reversing 
37  Hun  442,  2  How.  Pr.  N.  S.  369.— Fol- 
lowed IN  Forty-second  St.  &  G.  S.  F.  R. 
Co.  v.  Thirty-fourth  St.  R.  Co.,  102  N.  Y. 
691.  Reviewed  in  Re  Rochester  Elec.  R. 
Co.,  123  N.  Y.  351. 

Both  the  Constitution  and  the  statute  of 
1884  make  it  necessary  to  have  the  consent 
of  the  owners  of  one  half  in  value  of  the 
property  bounded  on  each  street  or  portion 
of  a  street  upon  which  it  is  proposed  to  con- 
struct a  street  railroad,  and  not  merely  the 
consent  of  the  owners  of  one  half  in  value 
of  the  property  bounded  upon  the  whole  of 
the  route  over  which  it  is  proposed  to  build 
the  road.  Hilton  v.  Thirty-fourth  St.  R. 
Co.,  I  How.  Pr.  N.  S.  (N.  Y.)  453. 

If  such  consents  cannot  be  had,  then  the 
road  must  be  authorized  by  three  com  mis- 


STREET   RAILWAYS,  113-117. 


393 


sioners  appointed  by  the  general  term  of  the 
supreme  court,  and  their  report  confirmed 
by  tlie  court.  Hilton  v.  Thirty  fourth  St. 
K.  Co.,  I  How.  Pr.  N.  S.  (/V.  V.)  453. 

The  act  of  May  6,  1884,  provides  two 
modes  in  which  a  company  may  acquire  a 
right  to  construct  and  operate  its  road.  One 
ia  by  obtaining  the  consent  in  writing  of  the 
owners  of  one  half  in  value  of  the  property 
boimded  on  the  street  or  highway  where 
the  road  is  to  be  constructed,  and  the  con- 
sent of  the  local  authorities  having  control 
of  the  same.  The  other  is  by  applying  to 
the  general  term  for  the  appointment  of 
three  commissioners,  where  such  consent 
cannot  be  obtained,  to  report  whether  the 
road  ought  to  be  constructed,  and  the  con- 
firmation of  a  favorable  report  by  the  court ; 
but  the  statute  does  not  define  the  order  in 
which  the  various  steps  prescribed  must  be 
taken.  If  the  property  owners  refuse  their 
consent,  the  appointment  of  commissioners 
may  be  asked  for  before  the  consent  of  the 
local  authorities  is  obtained.  (Daniels,  J., 
dissenting.)  /«  re  Broadway  Surface  Ji. 
Co.,  34  Hun  {IV.  V.)  414. 

The  establishment  of  a  horse  railroad  in  a 
public  street  is  the  imposition  of  an  addi- 
tional burden  upon  the  land  of  the  propri- 
etor, and  cannot  lawfully  be  done  witliout  a 
grant  from  the  owner  or  procuring  the  land 
to  be  condemned  for  that  purpose.  Thayer 
V.  Rochester  City  «S»  B.  R.  Co.,  15  Abb.  N. 
Cas.  (JV.  V.)  52.— Approving  Craig  v.  Ro- 
chester City  &  B.  R.  Co.,  39  N.  Y.  404. 

113.  Consent  need  not  be  under 
Heal.— N.  Y.  Const,  art.  3,  §  18,  prohibiting 
the  construction  or  operation  of  street  rail- 
roads, "except  upon  the  condition  that  the 
consent  of  the  owners  of  one  half  in  value 
of  the  property  bounded  on  "  the  street  or 
highway  be  obtained,  doea  not  require  that 
the  consent  of  the  property  owners  should 
be  under  seal,  or  that  it  should  convey  to 
the  company  any  interest  which  the  abutting 
owners  may  have  in  the  street  or  highway. 
In  re  Cortland  &»  //.  Horse  R.  Co.,  31  Hun 
{N.  K.)  72  ;  affirmed  in  98  A^.  Y.  336, 

114.  Proceedint;  to  condemn  — 
Necessary  averment  as  to  consent. 
—In  an  application  for  the  appointment  of 
commissioners,  under  the  New  York  stat- 
ute, the  affidavit  1 1  'ist  show  that  the  con- 
sent of  the  required  number  of  abutting 
owners  could  not  be  obtained,  and  must  also 
state  facts  so  showing.  A  general  state- 
ment that  the  owners  declined  to  consent, 


or  that  such  consents  could  not  be  obtained 
by  reason  of  the  absence  of  the  owners, 
mere!/  states  inferences  and  conclusions, 
and  is  i>  )t  sufficient.  In  re  New  York  Cable 
R.  Cj.,  j6  Hun  (N.  Y.)  355.  —  Distin- 
cuiSHHOiN  Re  Suburban  Rapid  Transit  Co., 
38  Hun  553.  Reconciled  in  Re  People's 
R.  Co.,  38  Am.  &  Eng.  R.  Cas.  404,  ii3  N. 
Y.  578;  In  re  People's  R.  Co..  21  N.  Y.  S. 
R.  496. 

1 15.  Chanfflug  motive  power  — 
Consent  not  required.  —  The  provi- 
sion of  the  New  York  Const,  art.  3,  {  18, 
that  "  no  law  shall  authorize  the  con- 
struction or  operation  of  a  street  railroad 
except  upon  the  conditir  ,1  that  the  con- 
sent of  the  owners  of  half  in  value  of  the 
property  bounded  on,  ai.d  the  consent  also 
of  the  local  authorities  having  control  of, 
that  portion  of  a  street  or  highway  upon 
which  it  is  proposed  to  construct  or  operate 
such  railroad,  be  first  obtained,"  does  not 
apply  where  it  is  proposed  to  change  the 
motive  power  of  a  street  railroad  to  cable  or 
electricity,  instead  of  animal  or  horse  pow- 
er, and  a  statute  which  auihorizes  a  street 
railway  to  make  such  change  upon  the  con- 
sent only  of  one  half  in  value  of  the  abut- 
ting proprietors  is  valid.  /«  re  Third  Ave, 
K.  Co.,  43  Am,  &*  Eng.  R.  Cas.  222,  121  A'. 
Y.  536,  24  N.  E.  Rep.  95 1,  31  A^.  Y.  S,  R. 
693;  rei'ersing  56  Hun  537,  31  N.  Y.  S.  R. 
645,  9  N.  Y.  Supp.  686,  833.— Distin- 
guishing Astorw.  Arcade  R.  Co.,  113  N.  Y. 
93.  Following  In  re  New  York  El.  R. 
Co.,  70  N.  Y.  327. 

4.    Time  within    Which  to  Construct  Road. 

110.  When  time  bef^ins  to  run. — 

Under  Cal.  Civil  Code,  §  502,  the  period  of 
three  years  within  which  a  street  railway 
must  be  completed  begins  from  the  date  of 
the  commencement  of  the  work,  and  not 
from  the  date  of  the  ordinance  granting  the 
right  of  way;  and  at  any  time  before  the 
expiration  of  that  time  the  grantee  of  the 
franchise  may,  with  the  consent  of  the 
authorities  granting  the  right  of  way,  aban- 
don the  uncompleted  portion.  People  e.v  rel. 
v.  Los  Angeles  Elec.  R.  Co.,  91  Cal.  338,  27 
Pac.  Rep.  673. 

117.  Absolute  forfeiture  without 
suit.— Where  the  legislature  grants  a  fran- 
chise to  construct  a  street  railroad  within  a 
certain  time,  with  a  condition  that  if  the 
provisions  of  the  act  are  not  complied  with 


i 


'..J 


394 


STREET   RAILWAYS,  118-122. 


si  ■ 


Iny-t^ 


.  8 


the  franchise  shall  be  forfeited,  a  failure  to 
lay  the  track  within  th<;  tinic  limited  works 
a  forfeiture  of  the  ri^ht,  without  '.  suit  by 
the  state,  and  the  legislature  may  confer 
the  franchise  upon  any  other  company  or 
person.  Oakland  K.  Co.  v.  Oaklanii,  li.&*  F, 
V.  N.  Co.,  45  Cal.  ^f^^,  5  Atn.  A>.  /»>/.  148. 

118.  ProvmMliiiK  1*3'  people  to  do- 
cliiro  I'ort'eltiire.— If  a  company  fails  to 
lay  its  tracks  and  to  operate  its  road  within 
the  time  and  in  tlic  manner  substantially 
as  it  is  required  to,  or  if,  in  the  manage- 
ment of  its  cats,  it  unlawfully  occupies  or 
obstructs  public  streets,  the  remedy  is,  in 
the  one  case,  by  proceeding  on  behalf  of 
the  public,  l)y  the  attorney-general,  to  annul 
and  forfeit  the  franchise,  and  in  tlic  other, 
by  indictment  or  prnccedin^^s  iiniler  tiio 
statute.  Elmira  v.  Atapie  Ave.  R.  Co.,  21 
N.  V.  S.  A'.  544,  4  A'.  K  Sit/>/>.  943,  51  ////« 
638.— Quoting  Moore  v.  Brooklyn  City  R. 
Co.,  108  N.  Y.  98,  13  N.  Y.  S.  R.  97. 

110.  Forfeiture  may  he  waived.— 
A  city  ordinance  requiring  a  passenger-rail- 
way company  to  commence  the  work  of 
constructing  its  tracks  within  a  prescribed 
time  is  intended  for  the  benefit  of  the  city, 
and  its  authorities  may  waive  it  at  pleas- 
ure. Hodges  V.  liallimore  Union  Pass.  Ji. 
Co.,  10  Am.  &^  EnfT.  R,  Cas.  270,  58  Afd.  603. 

120.  Forfeiture  for  failiiitir  to  be- 
gin work  witliin  one  year.  —  Under 
Cal.  Code,  §  502,  mere  failure  by  a  street- 
car company  to  commence  work  within 
one  year  does  not  work  a  forfeiture.  It 
must  fail  both  to  commence  work  within 
the  year  and  to  complete  the  road  within 
three  years  in  order  to  work  a  forfeiture ; 
and  even  then  it  is  optional  with  the  authori- 
ties granting  the  right  whether  the  forfeit- 
ure shall  be  total  or  partial.  (Ross,  J.,  dis- 
senting.) Omnibus  R,  Co.  v.  Baldwin,  i 
Am.  &^  Enj^.  R.  Cas.  316,  57  Cal.  160. 

The  general  law  under  which  a  company 
was  chartered  required  that  work  upon  the 
road  should  be  commenced  within  one  year, 
but  how  much  work,  or  at  what  point,  or 
in  what  manner  it  should  be  done,  was  not 
specified.  The  trial  court  found  that  work 
was  done  at  a  certain  place  on  the  road 
within  one  year.  Held,  that  the  question 
whether  the  company  did  or  did  not  com- 
mence the  work  within  the  year  was  a 
question  of  fact  for  the  trial  court,  and  the 
appellate  court  would  not  disturb  its  find- 
ings, where  there  was  some  evidence  that 
work  was  commenced  within  the  year.    The 


amount  of  work  done  is  not  controlling. 
Otnnibus  R,  Co.  v.  Baldwin,  i  Am.  &■»  Et^g, 
R.  Cas.  316,  57  Cal.  160. 

IV.  COHSTBUOTIOir  AND  BKPAIR  OF  TKAOk 
OB  8TBIST. 

I.  In  General.'* 

121.  Coiid ttiotiH  precedent  to  right 
to  c'oiiHtruct  road.— The  filing  of  a  cer- 
tificate of  incorporation  by  a  horse-railroad 
company,  reciting  that  fifty  per  cent,  of  the 
capital  stock  had  been  paid  in,  as  required 
by  the  statute,  when  in  fact  it  had  not  and 
was  not  until  some  time  thereafter,  does 
not  render  a  contract  for  building  the  road 
and  the  obligations  incurred  for  that  pur- 
pose absolutely  void.  Such  contracts  and 
obligations  may  be  ratified  by  the  subse- 
quent action  of  the  stockholders.  Kelley  v. 
Newburyport  &*  A.  Horse  R.  Co.,  24  Am, 
6f*  Eng.  R.  Cas.  27,  141  Mass.  496,  6  N.  E. 
Rep.  745. 

Under  N.  Y.  Act  of  1868,  ch.  842,  creating 
defendant  company,  and  under  the  several 
amendments  thereto,  the  company  was  not 
authorized  to  begin  the  construction  of  its 
road  until  it  proved  to  a  board  of  engineer 
commissioners  that  the  full  amount  of  its 
stock  had  been  subscribed  in  good  faith, 
and  ten  per  cent,  thereof  paid  in,  and  until 
the  board  had  made  a  certificate,  as  required 
by  the  original  act.  Bailey  v.  New  York 
Arcade  R.  Co.,  1  A^.  Y.  Supp.  304,  48  Hun 
621,  16  A^.  Y.  S.  R.  1007;  affirmed  in  113  A'. 
K  615,  20  A^.  E.  Rep.  594,  22  A'.  Y.  S.  R.\. 
—Following  Astor  v.  New  York  Arcade 
R.  Co.,  I  N.  Y.  Supp.  174. 

123.  Right  to  construct  switches 
and  turnouts.  —  A  charter  contained  a 
provision  that  "  said  railroad  shall  be  laid 
out  by  the  mayor  and  aldermen  in  like 
manner  as  highways  are  laid  out."  A  single- 
track  railroad  was  laid  out  by  the  mayor 
and  aldermen,  without  any  turnouts,  but 
with  a  provision  in  the  record  of  the  laying 
out  that  "said  horse-railroad  company  may 
construct  such  suitable  turnouts  on  either 
side  of  said  centre  line  as  they  may  find 
necessary  in  the  prosecution  of  the  busi- 
ness to  be  done  by  said  railroad."  Held, 
that  the  company  could  not  construct  a 
turnout,  although  necessary  for  its  busi- 
ness and  ref]iii:ed  for  the  public  conven- 


*  Rights,  Juties,  and  obligations  of  street  rail- 
ways with  respect  to  streets,  see  note,  as  Am. 
St.  Rei>  475. 


STREET   RAILWAYS,  123-120. 


396 


if  nee,  without  a  laying  nut  by  the  mayor  and 
aldermen.  Conconl  v.  Concord  Hone  R. 
Co.,  38  Am.  &*  Etig.  A".  Cas.  425,  65  N.  II. 
30.  18  Ail.  AV/.  87. 

The  grant  of  the  right  to  construct  a 
street  railway  carries  with  it  as  an  incident 
tlie  right  to  construct  such  turnouts  and 
switches  as  may  be  necessary  for  the  suc- 
cessful operation  of  the  road  ;  but  until  the 
city  council  has  refused  permission  to  put 
in  additional  switches,  the  district  court  has 
no  authority  to  act  by  injunction.  The 
right  of  the  city  to  be  consulted  about 
the  situation  and  construction  nf  the  side 
tracl<s  is  of  equal  dignity  with  the  right  of 
tlic  railway  company  to  construct  them  ;  and 
until  it  be  shown  that  the  city  has  waived  its 
privilegeor  declined  to  act,  the  railway  com- 
pany is  not  entitled  to  a  writ  of  injunction  to 
control  the  action  of  tlic  city  in  that  respect. 
Mayor,  etc.,  of  Houston  v.  Houston  B.  6»»  M. 
P.  R.  Co.,  84  Tex.  581,  19  5.   11^.  Rep.  786. 

123.  Power  to  aiitliorizo  addi- 
tional tracks.  —  Mass.  Act  of  1874,  ch. 
29,  §  II,  provides  that  the  board  of  alder- 
men of  any  city,  and  the  selectmen  of  any 
town,  shall  authorize  the  extension  of 
street  railways  within  the  limits  of  the 
city  or  town  "whenever  it  can  be  done 
without  entering  upon  or  using  the  tracks 
of  any  other  street-railway  corporation, 
under  such  restrictions  as  they  deem  the 
interests  of  the  public  may  require."  HeM, 
that  one  company  may  be  authorized  to 
locate  additional  tracks,  not  connected  with 
its  existing  tracks  except  by  the  tracks  of 
another  company.  South  Doston  R.  Co.  v. 
Mitiillesex  R.  Co.,  121  Mass.  485. 

The  word  "extend  "  as  used  in  the  above 
section  and  in  section  13,  in  its  primary  sense, 
when  applied  to  a  railroad  track  or  another 
line,  imports  a  continuation  of  the  line 
without  a  break ;  but  in  the  above  statute 
it  is  not  used  in  this  restricted  sense.  The 
object  of  the  legislature  was  to  delegat"  to 
the  local  authorities  of  cities  and  towns  the 
power  of  authorizing  and  controlling  the 
location  of  street  railways,  and  to  obviate  the 
necessity  of  going  to  the  legislature  when- 
ever it  was  desired  to  establish  a  new  street 
railway,  or  an  existing  company  desired  to 
locate  additional  tracks.  South  Boston  R. 
Co.  v.  Middlesex  R.  Co.,  121  Mass.  485. 

124.  Conforming  to  street  grade.* 
— A  city  ordinance  authorized  theconstruc- 

•  See  also />w/,  173. 


tlon  of  a  street  railroad,  but  provided  that 
the  tracks  "  shall  be  laid  in  accordance  with 
the  grades  of  the  streets  as  now  or  as  here- 
after may  be  established  " ;  that  whenever  a 
change  of  gr.ide  is  made  the  railroad  com- 
pany, after  due  notice,  "shall,  at  their  own 
expense,  conform  and  adjust  the  tracks  of 
the  railroad  to  such  changed  grades,"  and 
that  the  company  "shall  keep  in  good  re- 
pair  and  order  the  space  between  the  tracks 
or  rails."  Held,  that  the  company,  after  it 
had  constructed  its  road  in  a  street,  was 
bound  to  raise  its  roadbed  'j  a  grade  es- 
tablished by  the  city.  Little  Rock  v.  Citi- 
zens' St.  R.  Co.,  10  Am.  &*  Eng.  R.  Cas. 
456,  56  Ark.  28.  19  5.  W.  Rep.  17.— Re- 
viewing District  of  Columbian.  Washing- 
ton &  G.  R.  Co.,  4  Am.  &  Eng.  R.  Cas.  161, 
I  Mackey  (D.  C.)  361 ;  Ashland  St.  R.  Co.  v. 
Ashland,  78  Wis.  271,  47  N.  W.  Rep.  619. 

General  authority  to  a  city  to  "  make, 
grade,  repair,  and  improve  streets "  in- 
cludes the  power  of  determining  what  a 
grade  shall  be ;  and  the  power  is  not  ex- 
hausted, when  one  grade  is  fixed  on  a  par- 
ticular street,  by  the  fact  that  a  street-car 
line  is  laid  thereon.  The  power  may  be  exer- 
cised, or  new  grades  established,  as  often  as 
tiie  public  good  requires  it,  though  the  re- 
sult be  to  change  a  previous  grade.  Karst 
V.  St.  Paul,  S.  (S-  T.  F.  R.  Co.,  22  Minn.  1 18. 

125.  Forfeiture  for  failure  to  lay 
or  extend  tracks  ns  required  by 
charter.— Defendant  company,  organized 
in  pursuance  of  N.  Y.  Act  of  1858,  ch.  303, 
and  which  had  constructed  and  was  oper- 
ating its  road  in  the  city  of  Brooklyn,  was, 
by  an  amendment  passed  in  i860,  ch.  461, 
authorized  to  lay  tracks  for  several  distinct 
routes,  some  of  the  routes  to  be  "  ex- 
tended," and  others  to  be  laid  through 
certain  streets  "whenever  they  shall  have 
been  legally  opened  and  graded  "  (§  i).  De- 
fendant was  required  to  "complete  the 
tracks  upon  the  said  several  streets  and 
avenues  or  roads  named "  on  or  before 
October  i,  1861,  "or  as  soon  thereafter  as 
the  said  streets  and  avenues  within  said  city 
shall  have  been  opened,  graded,  and  paved, 
and  upon  any  planked  road  or  roads  when- 
ever the  consent  of  the  plank-road  com- 
panies shall  have  been  obtained."  Defend- 
ant claimed  it  was  not  bound  to  build  its 
road  on  any  one  of  the  routes  until  all  the 
streets  upon  it  were  opened  and  graded  so 
that  the  road  could  be  constructed  on  the 
whole  route.     Held,  untenable;  defendant 


396 


STREET  RAILWAYS,  126-128. 


was  required  co  iay  its  tracks  within  the 
time  specified  upon  such  of  the  streets 
r.iimed  as  were  opened  and  graded,  and 
upon  the  other  streets  as  soon  as  they  were 
opened,  graded,  and  paved  ;  thait  defendant 
could  not  accept  the  franchises  and  leave 
them  in  abeyance;  that  the  fact  that  it 
would  not  have  been  profitable  to  build 
roads  on  the  routes  specified  until  each 
route  was  opened  the  whole  length  thereof 
was  no  excuse  for  failure  to  comply  with 
the  requirements  of  the  act ;  that  such  fail- 
ure was  a  good  ground  for  forfeiture  ;  and 
that  the  court  had  power  to  declare  the 
franchises  forfeited.  Peoples.  Broadway  R. 
Co.,  48  Am.  (5-  Eng.  R.  Cas.  692,  126  A'.  Y. 
29,  26  Abb.  N.  Cas.  407,  26  N.  E.  Rep.  961, 
36  A'^.  Y.  S.  R.  376;  reversing  56  Hun  45,  29 
N.  Y.  S.  R.  343,  9  A^.  Y.  Supp.  6. 

Under  a  requirement  in  a  charter  that  a 
company  should  build  upon  any  plank  road 
whenever  the  consent  of  the  plank-road 
company  could  be  obtained,  it  is  the  duty 
of  the  company  to  use  reasonable  diligence 
to  obtain  such  consent;  and,  therefore,  it  is 
no  answer  that  it  did  not  appear  that  such 
consent  had  been  obtained.  People  v. 
Broadway  R.  Co.,  48  Am.  &•  Eng.  R.  Cas. 
692,  1 26  A^  Y.  29,  26  A6b.  N.  Cas.  407,  26  A^. 
E.  Rep.  961,  36  A^.  Y.  .S.  R.  376;  reversing 
56  //;/«  45,  29  A^.  Y.  S.  R.  343,  9  A':  Y. 
Supp.  6. 

It  was  claimed  by  the  company  that  as 
by  an  act  passed  in  1867,  ch.  905,  it  was 
prohibited  from  buihiing  its  road  on  one  of 
the  avenues  named,  this  wa?  an  answer  to 
its  default  as  to  that  avenue.  Held,  unten- 
able, as  at  the  time  of  the  passing  of  said 
act  defendant  had  been  in  default  for  over 
five  years,  and  so  there  was  good  ground 
for  forfeiture.  People  v.  Broadway  R.  Co., 
48  Am.  &•  Eng.  R.  Cas.  692,  126  N.  Y.  29, 
26  Abb.  JV.  Cas.  407,  26  A^.  E.  Rep.  961,  36 
A^.  Y.  S.  R.  376 ;  reversing  56  Hun  45,  29  A^. 
Y.  S.  R.  343,  9  A^.  Y.  Supp.  6. 

Defendant  was  not  aided  by  the  acts  of 
1875,  ch.  598,  1879,  ch,  350,  or  1882,  ch.  405, 
each  of  which  extended  for  two  years  the 
time  for  the  completion  of  the  road  of  any 
company  which  had  been  unable  to  con- 
struct its  road  within  the  time  specified  in 
its  charter.  The  act  of  1882  did  not  apply 
to  defendant  company,  as  it  did  not  apply 
to  any  corporation  which  had  already  com- 
menced the  constrr.cvion  of  its  road ;  and 
none  of  the  acts  ppplied,  as  it  did  not  ap- 
pear to  be  unable  from  any  cause  to  con- 


struct the  roads  it  was  bound  to  construct. 
People  v.  Broadway  R.  Co.,  48  Am.  &*  Eng. 
R.  Cas.  692,  126  A^.  Y.  29,  26  Abb.  N.  Cas. 
407,  26  A^.  E.  Rep.  961,  36  A^.  Y.  S.  R.  376; 
reversing  56  Hun  45,  29  A^.  Y.  S.  R.  343,  9 
A^.   Y.  Supp.  6. 

The  extensions  in  the  various  acts  were 
for  terms  of  two  years  beyond  the  time 
previously  limited,  so  that  if  they  did  apply 
to  defendant  their  combined  effect,  at  most, 
would  be  to  extend  the  time  for  six  years 
from  October  i,  1861.  People  v.  Broadway 
R.  Co.,  48  Am.  &*  Eng.  R.  Cas,  692,  126  N. 
Y.  29,  26  Abb.  N.  Cas.  407,  26  A^.  E.  Rep. 
961,  36  A'.  Y.  S.  R.  376;  reversing  56  Hun 
45.  29  A^.  Y.  S.  R.  343,  9  A^.  Y.  Supp.  6. 

120.  Biglit  to  lay  double  track.— 
If  a  company  has  the  authority  to  birild  a 
line  of  single  or  double  track,  the  construc- 
tion of  a  single  track  does  not  exhaust  the 
power  or  preclude  a  later  change  to  a 
double  track  when  the  business  demands 
it.  j\'ansom  v.  Citizens'  R.  Co.,  104  Mo.  375, 
16  S.  IV.  Rep.  416. 

A  municipal  ordinance  construed  to  au- 
thorize the  substitution  by  the  company  of 
a  double  track  for  a  single  track.  Ransom 
v.  Citizens'  R.  Co.,  104  Mo.  375,  16  S.  W. 
Rep.  416. 

127.  Bight  to  move  depot  and 
abandon  part  of  track.  —  An  injunc- 
tion will  not  be  granted  restraining  a  city 
railroad  company  from  moving  its  depot 
and  business  to  a  safer  and  more  conven- 
ient place  for  the  traveling  public,  thereby 
abandoning  a  portion  of  its  road,  where  it 
appears  that  no  public  injury  will  result. 
Moore  v.  Brooklyn  City  R.  Co. ,  36  Am.  &* 
Eng.  R.  Cas.  76,  108  A'.  Y.  98.  1 5  A^.  £•.  Rep. 
191,  13  A'.  Y.  S.  R.  97;  affirming  2,6  Hun 
642,  mem. 

128.  When  coinpnu)'  may  lay 
tracks  where  it  deems  i>est.—  Where 
a  company  has  permission  from  the  legis- 
lature and  the  city  council,  it  can  lay  its 
track  in  the  street  wherever,  in  its  opinion, 
it  is  to  the  best  interest  of  the  company ; 
but  if  laying  it  near  the  sidewalk  of  an  abut- 
ting owner  should  cause  special  damage  to 
his  property,  the  company  is  liable.  Camp- 
bell V.  Metropolitan  St.  R.  Co.,  82  Ga.  320, 
9  5.  E.  Rep.  1078. 

But  in  order  to  recover  damages  in  such 
case  the  complaint  must  allege  that  the 
property  of  the  abutting  owner  was  dam- 
aged by  the  location  of  the  track.  It  is  not 
enough  to  allege  that  the  track  w:is  laid  so 


STREET   RAILWAYS,  120-133. 


397 


uct. 


near  the  sic'  .  allc  that  the  liorscs  and  mules 
sometimes  got  on  the  sidewalk  in  front  of 
plaintiff's  property,  "greatly  to  the  annoy- 
ance and  disturbance  of  himself  and  his 
family."  Campbell  v.  Metropolitan  St.  R. 
Co.,  82  Ga.  320.  9  S.  E.  Rep.  1078. 

120.  llit^lit  ul'  city  tu  iiiipuMe  con- 
ditions as  to  use  of  streets.— Where  a 
charter  authorizes  the  company  to  construct 
its  road  in  the  streets  of  a  city,  its  officers 
are  not  liable  to  indictment  for  obstructing 
the  streets  wiiere  there  is  iu;thing  to  show 
that  there  was  any  obstruction  other  than 
what  necessarily  resulted  from  the  prosecu- 
tion of  the  work.  The  city  may  pass  proper 
rules  and  regul.-Mions  respecting  the  road, 
but  it  cannot  force  the  company  to  enter 
into  z  contract  respectl.ig  the  manner  of 
construction  and  use  ot  the  road.  Frayser 
V.  State,  16 Lea  {Tenii.)  671. 

In  such  case  a  provision  in  the  company's 
charter  that  it  "  may  "  enter  into  contracts 
with  the  city  or  other  parties  cannot  be 
construed  that  it  "  must  "  do  so.  This  is  a 
grant  of  power  which  may  or  may  not  be 
exercised,  at  the  election  of  the  company. 
Frayser  v.  State,  16  Lea  (Tenn.)  671. 

130.  Power  of  court  of  equity  to 
compel  coimtructioii.-  A  provision  in  a 
charter  that  the  company  shall  hav  power 
to  construct  its  road  "  from "  a  certain 
borough  line  construed  i.s  imperative,  and 
does  not  give  the  conii)any  the  power  to 
construct  its  road  from  a  point  some  sixty 
rods  from  such  line.  Com.  v.  Erie  &*  N,  E. 
R.  Co.,  27  Pa.  St.  339. 

And  a  provision  j^i'-'ing  a  company  "  power 
and  authority  to  lay  out  and  construct  a 
railway  "  is  imperative.  A  court  of  equity 
has  power  to  compel  a  city  railroad  com- 
pany to  build  its  road  where  it  has  entered 
into  such  a  contract  with  the  city  as  obliges 
it  to  complete  the  said  road.  Martin  v. 
Second  <S-  T.  St.  Pass.  R.  Co.,  3  Pliila. 
(Pa.)  316. 

131.  Duty  to  fence  embankment. 
— Where  a  company,  in  passing  a  sharp  curve 
in  laying  its  track,  leaves  the  highway  and 
constructs  its  road  on  an  embankment  on 
private  property,  it  is  under  no  obligation 
to  fence  the  embankment  to  prevent  per- 
sons who  waik  over  it,  without  the  invita^ 
tion  or  permission  of  the  company,  from 
falling  therefrom  into  a  stream  of  water 
below.  Hooper  s.  Johnstown,  G.  &*  K.  Horse 
R.  Co.,  13  A^.  Y.  Supp.  151.  59  Hun  618.  mem., 
35  A^.    Y.  S.  R.  503;  affirmed  in  128  A^.    Y. 


613,  mem.,  28  A^.  E.  Rep.  252,  mem. — Apply- 
ing Cusick  V.  Adams,  115  N.  Y.  55.  21  N. 
E.  Rep.  673. 

132.  When  road  deemed  com- 
pleted.—Where  a  company  is  required  to 
complete  its  road  within  a  stated  time,  and 
it  is  extended  for  a  short  distance  over  a 
projected  street  that  it  is  the  pur|K}se  to 
construct  over  the  bed  of  a  navigable  river, 
but  the  street  is  never  opened,  whereby  it 
is  rendered  impossible  to  lay  the  track,  the 
road  will  be  deemed  completed  by  laying  it 
as  far  as  the  street  is  constructed.  In  re 
Metropolitan  El.  R.  Co.,  iz  N.  Y.  Supp.  506. 

2.  Paving,  Repairing,  and  Restoring  Street 
or  Track. 

a.  Paving  and  Repaying.'*' 

133.  Generally.  —  An  ordinance  re- 
quiring a  street  railroad  to  grade,  pave, 
macadamize,  fill,  or  plank  so  much  of  streets 
as  are  covered  by  their  tracks,  and  exempt- 
ing the  company  from  assessments  therefor, 
is  constitutional.  Parmelee  v.  Chicago,  60 
///.  267.— Following  Chicago  z/.  Sheldon. 
9  Wall.  (U.  S.)  so.  Modifying  Chicago  v. 
Baer,  41  111.  306. 

A  municipal  ordinance  allowed  a  street- 
railway  company  to  double  its  track  through- 
out a  certain  street,  but  stipulated  that  it 
should  thereafter  bear  all  the  expense  of 
repaving  so  much  of  the  street  as  was  oc- 
cupied by  its  tracks,  and  should  relay  its 
tracks  in  the  middle  of  the  street.  Held, 
that  the  ordinance  applied  to  the  whole 
stro<^t,  and  that  if  the  company  availed  itself 
of  the  permission  in  part,  it  accepted  the 
conditions  in  full,  and  lost  the  benefit  of 
former  exemptions  or  privileges  that  were 
inconsistent  with  it.  Detroit  v.  Detroit  City 
R.  Co.,  37  Mich.  558. 

Section  i  of  Kansas  City  ordinance  passed 
June  29,  1880,  relating  to  street  railways 
does  not  require  such  railways,  or  any  officer 
thereof,  to  pave  the  streets  on  which  their 
cars  arc  operated.  Kansas  City  v.  Corri^au, 
86  Mo.  67. 

The  consent  of  the  city  councils  to  au- 
thorize defendant  company  to  occupy  cer- 
tain streets  was  given  on  condition  that  the 
company  should  first  comply  with  the  ordi- 
nances regulating  passenger-railway  com- 
panies.   One  of  said  ordinances  required  all 

*  Obligation  nf  street  railways  to  pave  Streets, 
see  note,  25  Am.  St  Rf.p.  481. 


398 


STREET    RAILWAYS,  134-136. 


such  companies  to  give  bond  to  comply 
with  its  provisions,  one  of  which  was  that 
they  should  pave  and  maintain  all  streets 
occupied  by  them.  Defendant,  having  filed 
the  bond  required,  is  bound  to  pave  all  of 
the  streets  on  which  its  tracks  are  laid. 
Frankford  &*  S.  P.  C.  Pass.  A'.  Co.  v.  PAtla- 
delphia,  (Pa.)  25  Am.  &*  Eng.  R.  Cas.  262, 
4  All.  Rep.  550. 

An  ordinance  requiring  a  street-railway 
company  to  pave  the  street  at  the  sides  of 
its  rails  with  cubic  blocks  of  granite  is 
reasonable  and  will  be  enforced.  Phila- 
delphia V.  Empire  Pass.  R.  Co.,  7  Phila. 
{Pa.)  321. 

134.  What  agreement  to  paveciii' 
braces.— To  pave  a  street  is  not  necessarily 
to  change  its  grade,  as  a  paving  may  be 
done  in  any  way  that  will  make  a  compact, 
even,  hard  surface.  Slate  ex  rel.  v.  Jackson- 
ville St.  R.  Co.,  50  Am.  &*  Eng.  R.  Cas.  179, 
29  Fla.  590,  10  So.  Rep.  590. 

"  Macadamizing "  is  not  paving  within 
the  meanmg  of  a  statute  and  ordinance 
requiring  street-car  companies  to  pave 
streets.  Leake  v.  Philadelphia,  \Pa.)  24 
All.  Rep.  351. 

135.  Paving  "in  and  about  the 
rails."  —  Defendant  company  contracted 
with  a  city  to  pave  the  streets  where  its 
track  was  laid, "  in  and  about  the  rails,"  and 
to  "  keep  the  same  in  repair."    An  abutting 
lot  owner  had  a  license  from  the  city  to  dig 
a  trench  across  the  street  and  under  the 
track  to  connect  with  a  sewer.    Defendant 
laid  down  planks  to  bridge  the  excavation, 
but  plaintifl,  who  was  driving  on  the  street, 
was  injured  by  reason  of  the  planks  giving 
way  and  one  wheel  of  his  truck  going  into 
the  excavation.      Held,  that  the  company 
was  bound,  under  its  contract  with  the  city, 
to  keep  the  street  in  and  about  its  rails  in  a 
safe  condition,  and  was  liable  for  a  failure 
to  do  so ;  and  the  fact  that  the  lot  owner 
had  a  license  to  dig  the  trench  did  not  ab- 
solve the  company  from  its  obligation  to 
protect  the    public.    (Rapallo,    Earl,   and 
Hand,  JJ.,  dissenting.)  AfcAfahon  v.  Second 
Ave.   R.    Co.,  75  A^.    Y.  231;  affirming  11 
Hun  347.— Followed  in  Mayor.etc,  of  N. 
Y.  V.  Second  Ave.  R.  Co.,  26  Am.  &  Eng. 
R.  Cas.  546,  102  N.  Y.  572,  7  N.  E.  Rep. 
905,  2  N.  Y.  S.  R.  526. 

The  requirement  to  pave  "  in  and  about 
the  rails"  included  so  much  of  the  street 
surface  outside  the  rails  as  was  disturbed  in 
laying  the  track,  and    in   the   absence  of 


evidence  as  to  how  far  that  space  extended, 
it  was  a  reasonable  presumption  that  it  in- 
cluded as  much  as  one  foot  outside  the 
rails.  McMahon  v.  Second  Ave.  R.  Co.,  75 
A'.  K.  231  ;  affirming  11  Hun  347. 

Conceding  defendant  was  not  bound  to 
repair,  it  had  the  right  so  to  do  to  make 
the  street  passable  for  its  own  vehicles,  and 
having  volunteered  to  make  the  passage 
safe  over  the  excavation,  and  in  attempting 
to  do  so  having  left  the  space  in  reality 
insecure,  while  giving  it  an  appearance  of 
safety  which  was  delusive  and  misleading,  it 
was  liable.  McMahon  v.  Second  Ave.  R. 
Co.,  75  A^.  K.  231  ;  affirming  11  Hun  347. 

A  street-car  company  covenanted  with  a 
city  "  to  pave  the  streets  in  and  about  the 
rails  of  its  track  in  a  permanent  manner, 
and  to  keep  the  same  in  repair  10  the  satis- 
faction of  the  street  commissioner."  Held, 
that  the  obligation  thus  created  extended  to 
the  entire  space  between  two  tracks.  Mayor, 
etc.,  of  N.  V,  V.  Second  Ave.  R.  Co.,  26  Am. 
(S-  Ettg.  R.  Cas.  546,  102  A^.  V.  572,  7  N. 
E.  Rep.  905,  2  A'.  V.  S.  R.  526,  55  Am.  Rep. 
839;  affirming  31  Hun  241.  —  Following 
McMahon  v.  Second  Ave.  R.  Co.,  75  N. 
Y.  231. 

130.  When  obligation  to  keep 
Htreet  in  repair  includes  paviiig.- 
Under  an  ordinance  requiring  a  street-rail- 
way company  to  keep  the  portions  of 
streets  between  its  tracks  and  two  feet  on 
each  side  thereof  in  as  good  repair  and  con- 
dition as  the  city  keeps  the  balance  of  the 
streets,  and  of  even  grade  with  the  street,  it 
is  the  duty  of  the  company  not  only  to  keep 
the  space  between  its  tracks  and  two  feet  on 
each  side  of  even  grade  with  the  balance  oi 
the  street,  and  in  as  good  repair  as  the  city 
keeps  the  balance  of  the  street,  but  also  to 
pave  the  portions  of  streets  between  its 
tracks  and  two  feet  on  each  side  thereof 
when  the  city  paves  the  balance  of  the 
streets.  State  ex  rel.  v.  Jacksonville  St.  R. 
Co.,  50  Am.  &*Eng.  R.  Cas.  179,29  Fla.  590, 
10  So.  Rep.  590. 

If  the  balance  of  the  street  has  in  fact 
been  paved  under  the  supervision  and  con- 
trol of  the  city,  and  is  kept  in  this  condition, 
this  is  sufficient  to  require  the  company  to 
pave;  and  it  is  immaterial  that  there  may 
have  been  irregularity  in  the  procedure,  or 
a  departure  from  prescribed  methods  for 
procuring  the  pavement  of  streets.  State 
ex  rel.  v.  Jacksonville  St.  R.  Co.,  50  Am.  &• 
Eng.  R.  Cas.  179, 29  Fla.  590,  10  So.  Rep.  590, 


i!;!|i| 


?'Mf 


STREET   RAILWAYS,  137-139. 


399 


187«  When  not. —An  ordinance  au- 
thorizing the  use  of  streets  for  a  street  rail- 
way provided  that  the  company  should 
boulder  the  space  between  rails,  and  pave, 
boulder,  or  otherwise  improve  and  keep  in 
repair  two  feet  on  the  outside  of  each  rail. 
An  amendatory  ordinance,  passed  twelve 
years  later,  provided,  instead,  that  the  com- 
pany should  keep  the  space  between  the 
rails,  together  with  all  bridges  and  crossings 
of  gutters,  and  two  feet  on  the  outside  of 
each  rail,  in  good  repair.  Both  ordinances 
were  accepted  by  the  company.  The  amend- 
atory ordinance  was  passed  in  considera- 
tion that  the  company  should  unite  its  two 
disconnected  systems  of  railway,  charge  a 
fare  of  five  cents  for  transportation  to  any 
part  of  the  city,  and  construct  within  a 
given  time  certain  additional  lines.  Held, 
that  a  compliance  by  the  company  with  the 
conditions  of  the  ordinance  was  a  sufficient 
consideration  for  the  amended  ordinance, 
and  that  when  it  was  accepted  by  the  com- 
pany and  its  conditions  complied  with  it 
became  a  binding  contract.  Western  P.  &* 
S.  Co.  v.  Citizens'  St.  /i.  Co.,  46  Am.  &>  Ettg. 
Ji.  Cas.  176,  128  Ind.  525,  26  A^.  E.  Hep.  188. 
28  N.  E.  Rep.  88.— Distinguishing  Penn- 
sylvania R.  Co.  V.  Miller,  132  U.  S.  75; 
Sioux  City  St.  R.  Co.  v.  Sioux  City,  138  U. 
S.  98.  Following  Coast  Line  R.  Co.  v. 
Mayor,  etc.,  of  Savannah,  30  Fed.  Rep.  6.^6; 
State  ex  rel.  v.  Corrigan  Con.  St.  R.  Co.,  85 
Mo.  263 ;  Chicago  v.  Sheldon,  9  Wall.  (U. 
S.)  50.— Reviewed  in  Binghamton  v.  Bing- 
hamton  &  P.  D.  R.  Co.,  41  N.  Y.  S.  R.  83. 
61  Hun  479,  16  N.  Y.  Supp.  225. 

Where  an  ordinance  provides  that  a  com- 
pany shall  keep  the  space  between  the  rails 
and  a  certain  space  outside  each  rail  in  re- 
pair, the  city  cannot,  by  a  subsequent  ordi- 
nance, impose  on  such  company,  without  its 
consent,  the  obligation  of  paying  a  propor- 
tionate share  of  the  cost  where  a  street  oc- 
cupied by  its  railway  is  improved.  Western 
P.&*  S.  Co.  v.  Citizens'  St.  P.  Co.,  46  Am.  &* 
Eng.  R.  Cas.  176, 128  Ind.  525,  26  N.  E.  Rep. 
188.  38  N.  E.  Rep.  88. 

Where  an  ordinance  grants  to  a  company 
the  privilege  of  using  its  streets,  but  requires 
it  to  keep  the  portions  of  the  streets  used 
in  good  repair,  the  city  cannot,  by  a  subse- 
quent ordinance,  compel  the  company  to 
pave  with  specified  materials,  or  punish  any 
one  for  operating  the  cars  where  the  paving 
is  not  done.  Such  later  ordinance  would  be 
an  interference  with  the  contract  between 


the  city  and  the  railway  as  contained  in  the 
ordinance  granting  the  latter  its  franchise. 
Kansas  City  v.  Corrigan,  86  Mo.  67. — Fol- 
lowing State  ex  rel.  v.  Corrigan  Con.  St. 
R.  Co.,  8s  Mo.  263. 

An  ordinance  providing  that  a  street-car 
company  shall  bear  part  of  the  cost  of  neces- 
sary repairs  on  streets  on  which  its  tracks 
are  laid  does  not  apply  where  the  streets 
are  not  out  of  repair,  but  the  municipal 
authorities  desire  to  change  the  kind  of 
pavement  used.  Norristown  v.  Norristown 
Pass.  R.  Co.,  148  Pa.  St.  87, 23  At/.  Rep.  1060. 

Under  a  provision  requiring  a  company 
to  pave  between  its  rails  and  twelve  inches 
on  each  side,  so  as  "  to  suit  the  kind  of 
paving  used  in  the  streets,"  the  company  is 
only  bound  to  keep  its  tracks  and  the  speci- 
fied portion  of  the  roadway  in  good  condi- 
tion, and  to  make  all  necessary  repairs 
thereto ;  but  is  not  bound  to  perform  work 
altering  the  form  or  nature  of  the  roadway 
and  of  the  paving  of  the  streets.  Montreal 
V.  Montreal  St.  R.  Co.,  3  Montr.  Super.  320. 

138.  Original  duty  of  city  as  to 
conditions. — The  fact  that  a  street-rail- 
road company  has  agreed  to  keep  a  portion 
of  a  street  in  a  city  in  repair,  as  one  of  the 
conditions  upon  which  it  was  permitted  to  lay 
its  tracks,  does  not  deprive  the  proper  city 
authorities  of  the  power,  or  absolve  them 
from  the  duty,  to  keep  such  streets  in  a 
safe  and  proper  condition  ;  .ind  even  if  the 
city  fails  to  require  the  company  to  perform 
its  contract,  this  is  not  an  objection  to  an 
assessment  being  made  upon  owners  of  lots 
upon  the  streets  for  necessary  repairs. 
People  ex  rel.  v.  Brooklyn,  65  N.  V.  349, — 
Applying  Brooklyn  v,  Brooklyn  City  R. 
Co..  47  N.  Y.  475. 

130.  Where  improvement  is  made 
l>y  city,  and  company  assessed.— 
Where  a  company  is  bound  to  pave  a  street 
between  its  rails  and  to  a  distance  of  two 
feet  beyond,  which  is  more  expensive  than 
the  cost  of  paving  the  rest  of  the  street,  the 
whole  cost  of  paving  that  part  of  the  street 
should  be  assessed  to  the  railroad,  and  not 
the  proportion  of  the  cost  which  the  part  it 
is  required  to  pave  bears  to  the  whole 
street.  Washington  &*  G.  R.  Co.  v.  District 
of  Columbia,  1 1  Am.  &»  Eng.  R.  Cas.  38,  108 
U.  S.  522,  2  Sup.  Ct.  Rep.  865. 

In  such  case  the  cost  of  supporting  the 
track  by  underpinning  while  the  paving  is 
being  done  is  chargeable  to  the  railroad. 
Washington  &*  G.  R.   Co.   v.   District  of 


'V' 


400 


'■•f 


I  111 


STREET   RAILWAYS,  130. 


Columbia,  ii  Am.  &*  Eng.  R.  Cas.  38,  108 
C/.  S.  522,  2  Sup.  a.  Rep.  865. 

A  city  by  a  third  ordinance  sought  to 
compel  a  company  to  pay  a  part  of  the  cost 
of  street  improvements.  This  ordinance 
was  not  accepted  by  the  company.  After- 
wards the  city  granted  to  the  purchaser  of 
the  street  railway  all  its  rights,  privileges, 
and  franchises,  in  consideration  that  the 
purchaser  should  assume  all  the  obligations 
and  duties  of  the  street-railway  company. 
Held,  that  it  was  not  competent  to  prove  by 
parol  that  the  new  company,  in  consideration 
of  the  passage  of  the  ordinance  ratifying  and 
approving  the  sale,  accepted  the  ordinance 
which  sought  to  make  the  old  company 
liable  for  street  improvements.  Western 
P.  &>  S.  Co.  v.  Citizens'  St.  R.  Co.,  46  Am. 
6-  Eng.  R.  Cas.  176,  128  Ind.  525,  26  N.  E. 
Rep.  188,  28  A^.  E.  Rep.  88.— OVERRULING 
IN  PART  Welz  V.  Rhodius,  87  Ind.  i. 

Defendant  company,  under  its  contract 
with  a  city,  was  to  plank  a  street  from  spec- 
ified points.  The  city  caused  the  contract 
to  pave  this  street  between  the  specified 
points  to  be  adjudicated  to  a  paving  and 
improvement  company,  and  defendant  sub- 
mitted propositions,  which  were  acted  upon, 
to  pay  part  of  the  cost  of  graveling  the 
street  in  lieu  of  the  performance  of  its  paving 
contract.  Held,  that  the  city  must  rescind 
its  action  in  the  matter  of  said  adjudication 
and  of  cost,  if  there  be  cause,  before  suit 
can  be  maintained  to  enforce  the  original 
contract.  State  ex  rel.  v.  St.  Charles  St.  R. 
Co.,  44  La.  Ann.  562,  10  So.  Rep.  927. 

Under  an  ordinance  of  a  city  a  street-car 
company  contracted  to  pave  its  track  on  a 
certain  street,  and  two  feet  and  four  inches 
on  either  side,  at  its  own  expense  "  if  the 
city  should  pave  said  street  contemporane- 
ously with  tlie  construction  of  complainant's 
railway."  The  city  paved  the  street,  and 
assessed  the  company  for  the  cost  of  exca- 
vation and  paving  of  its  portion  of  the 
street.  Held,  that  the  company  was  only 
li?ble  to  pay  for  its  portion  of  paving,  and 
not  for  the  excavation.  Fort  St.  &»  E.  R.  Co. 
V.  Schneider,  15  Mich.  74.— Followed  in 
Smith!/.  FortSt.  &  E.  A.  R.Co.,  17  Mich. 66. 

Wliere  a  company  is  under  contract  with 
a  city  "  to  replace  and  keep  in  repair  the 
pavement  between  and  at  least  two  feet  in 
width  on  each  outer  side  of  its  tracks," 
such  contract  can  only  be  enforced  in  an 
action  at  the  instance  of  the  city.  Gilmort 
V.  Utica,  43  Am.  &»  Eng.  R.  Cas.  225,  121 


JV.  Y  561,  24  A^.  E.  Rep.  1009,  31  N.  Y.  S. 
R.  880;  reversing  55  Hun  514,  29  A^.  Y.  S. 
/?.  781,9  A^.  Y.Supp.  gi2. 

Such  contract,  or  the  relation  created 
thereby,  does  not  prevent  the  city  from  pav- 
ing the  whole  street  and  levying  an  assess- 
ment for  the  expense  thereof  upon  the  abut- 
ting proprietors,  as  provided  by  the  city 
charter.  Gilmore  v.  Utica,  43  Am.  &*  Eng. 
R.  Cas.  225,  121  A^.  Y.  561,  24  N.  E.  Rep. 
1009,  II  N.  Y.  S.  R.  880 ;  reversing  55  Hun 
514,  29  N.  Y.  S.  R.  781,  9  A^.   Y.  Supp.  912. 

A  provision  in  a  street-car  charter  that 
the  company  shall  "keep  the  surface  of  the 
street  between  its  tracks  and  for  one  foot 
outside  in  good  and  proper  order  and  re- 
pair" does  not  require  it  subsequently  to 
pave  with  asphalt,  unless  it  is  clearly  shown 
to  be  necessary.  The  mere  declaration  of 
the  common  council  that  an  asphalt  pave- 
ment shall  be  laid  does  not  prove  the  neces- 
sity of  such  pavement ;  and  where  the  city 
lays  the  pavement  and  assesses  the  company 
it  cannot  recover  the  cost  thereof  without 
showing  that  such  pavement  was  necessary. 
Binghamton  v.  Binghamton  &*  P.  D.  R.  Co., 
41  A'.  Y.  S.  R.  83.  61  Hun  479,  16  A'.  Y. 
Supp.  225.  —  Reviewing  In  re  Repaving 
Fulton  Street,  29  How.  Pr.  429 ;  State  ex 
rel.  V.  Corrigan  Con.  St.  R.  Co.,  85  Mo. 
263 ;  Western  P.  &  S.  Co.  v.  Citizens'  St.  R. 
Co..  128  Ind.  525,  26  N.  E.  Rep.  188;  Mid- 
dlesex R.  Co.  V.  Wakefield,  103  Mass.  261 ; 
People  ex  rel.  v.  Fort  St.  &  E.  R.  Co.,  41 
Mich.  413;  Ridge  Ave.  Pass.  R.  Co.  v. 
Philadelphia,  124  Pa.  St.  219;  Mayor,  etc., 
of  N.  Y.  V.  Second  Ave.  R.  Co.,  102  N.  Y. 
572.  2  N.  Y.  S.  R.  526. 

A  sci.fa.  on  a  lien  for  paving  does  not  lie 
against  a  railroad  company  whose  track 
lies  along  the  street  in  which  the  paving  was 
done.  Philadelphia  v.  Philadelphia,  W.  &* 
B.  R.  Co.,  2  Phila.  (Pa.)  37. — Reviewing 
Pennock  v.  Hoover,  5  Rawle  (Pa.)  291. 

A  city  passed  an  ordinance  providing  that 
defendant  company  should  at  all  times  keep 
its  road  in  good  repair  and  upon  a  level 
with  the  street,  pay  all  expenses  of  filling, 
grading,  laying,  paving,  or  otherwise  chang- 
ing, improving,  or  maintaining  the  street 
between  its  tracks,  and  failing  to  do  so  the 
city  should  have  the  right  to  do  the  same 
and  recover  of  the  company  the  cost  of  the 
work.  Held,  that  the  city  cannot  recover 
for  filling,  grading,  and  paving  a  part  of 
the  street  between  defendant's  tracks  upon 
which  the  railway  was  not  built  at  the  time 


IP 


STREET    RAILWAYS,  140-142. 


401 


5. 


such  improvements  were  made,  merely  be- 
cause the  company  afterward  established  its 
tracks  on  the  street.  Gui/  City  St.  R.  (&<•  A". 
E.  Co.  V.  Galveston,  32  Am.  &*  Eng.  R.  Cas. 
300,  69  Tex.  660,  7  S.  IV.  Rep.  520.— DIS- 
TINGUISHING Columbus  z/.  Columbus  St.  R. 
Co.,  45  Ohio  St.  98,  10  West.  Rep.  436. 

140.  DividiuK  cost  between  com- 
pany and  abutting  owners.  —An  ordi- 
nance of  a  city  authorized  it  to  assess  two 
thirds  of  the  cost  of  paving  a  street  upon 
the  property  holders  who  were  especially 
benefited  thereby,  after  deducting  the 
amount  a  street-railway  company  was  re- 
quired to  pay.  The  city  paved  on'v  the 
middle  portiol^^f  a  street,  not  including  the 
portion  where  the  track  was  laid,  and  only 
assessed  the  property  owners  five  eighths  of 
the  required  two  thirds,  and  did  not  assess 
the  street-car  company  at  nil.  Held,  that  the 
property  owners,  under  the  circumstances, 
could  not  complain  that  the  company  was 
not  assessed.  Bowditch  v.  New  Haven,  40 
Conn.  503. 

And  in  such  case  the  fact  that  the  com- 
pany, by  its  charter,  was  required  to  keep 
in  repair  a  space  two  feet  wide  on  each  side 
of  its  track  would  not  invalidate  the  assess- 
ment against  the  property  owners,  because 
the  company  was  not  assessed  at  all.  Bow- 
ditch  V.  Nexv  Haven,  40  Conn,  503. 

By  a  city  ordinance  a  company  was  re- 
quired to  pave  its  right  of  way,  being  sixteen 
feet,  along  a  street.  By  another  or  'i nance 
the  paving  of  the  street  its  entire  width  was 
required,  and  the  commissioners  appointed 
for  that  purpose  reported  that  they  had 
made  an  estimate  of  the  cost  of  such  im- 
provement. Held,  that  the  cost  of  paving 
the  centre  sixteen  feet  of  the  street  was 
wrongfully  included  in  the  estimate  of  the 
cost  of  the  improvement  to  be  charged  upon 
the  property  benefited,  and  that  judgment 
of  confirmation  of  the  assessment  roll  was 
properly  denied.  Chicago  v.  Cummings,  144 
///.  446.  33  N.  E.  Rep.  34. 

In  such  case  the  ordinance  for  the  im- 
provement of  the  entire  street  is  not  void, 
if  so  much  is  required  for  the  public  con- 
venience ;  but  the  city  having  required  the 
company  to  "  fill,  grade,  pave,  and  keep  in 
repair  during  all  the  time  "  that  it  has  the 
privilege  of  using  the  street,  sixteen  feet  in 
width,  when  a  double  track  is  used,  "in 
accordance  with  such  ordinance  as  the  city 
council  may  pass  respecting  such  filling, 
grading,  paving, or  repairing,"  and  requiring 
7  D.  R.  D  — 26 


the  same  to  be  done  by  the  railway  company 
with  like  material,  in  like  manner,  and  at 
the  time  as  required  in  respect  of  the  rest 
of  the  street,  the  cost  of  paving  so  much  of 
the  street  should  have  been  excluded  from 
the  estimate.  Chicago  v.  Cummings,  144  ///. 
446,  33  N.  E.  Rep.  34. 

141.  AVhen  two  companies  occupy 
same  street.— Where  defendant  company 
is  liable  fur  necessary  paving  upon  any 
street  occupied  by  it,  the  fact  that  another 
company  occupies  the  same  street  makes  no 
difference.  The  city  may  elect  to  sue  one 
company  for  all,  and  drive  it  to  an  action 
against  the  other  for  contribution,  or  it  may 
sue  each  for  one  half.  No  company  can  be 
compelled  to  pay  for  paving  in  a  street  not 
occupied  by  it  or  beyond  a  line  drawn  from 
the  corner  of  curb  lines  of  the  street  it  occu- 
pies. Philadelphia  v.  Second  &*  T.  St.  Pass, 
R.  Co.,  2  Pa.  Dist.  705. 

142.  When  city  is  to  furnish  ma- 
terial.—Under  an  ordinance  requiring  a 
company  to  "  keep  the  surface  of  the  street 
inside  the  rails,  and  for  two  feet  four  inches 
outside  thereof,  in  good  order  and  repair, 
provided,  however,  that,  upon  the  paved 
portion  of  said  streets,  the  materials  for  re- 
paving  shall  be  supplied  at  the  expense  of 
the  city  "—where  the  city  directs  the  com- 
pany to  "  raise  and  repair  "  that  portion  of 
the  pavement  which  is  within  the  rails,  at  a 
time  when  it  has  become  so  worn  and  dilap- 
idated that  a  reconstruction  with  new  mate- 
rials is  essential,  the  city  is  bound  to  bear 
the  expense  of  the  materials.  Such  repairs 
amount  to  repaving,  within  the  meaning  of 
the  proviso.  Ft.  Wayne  &*  E.  R.  Co.  v. 
Detroit,  34  Mich.  78. 

A  city  ordinance  required  a  company  to 
keep  the  space  between  its  rails  in  good  re- 
pair, and  to  pave  where  other  portions  of 
liie  street  were  paved,  with  materials  to  be 
supplied  at  the  expense  of  the  city.  Held, 
in  an  action  by  the  company  to  recover  the 
cost  of  materials  which  it  had  furnished, 
that  it  was  not  bound  to  show  that  the 
necessity  for  repairs  did  not  arise  from  its 
own  previous  neglect.  Such  a  fact,  if  it  ex- 
isted, was  matter  of  defense.  Ft.  Wayne 
6-  E.  St.  R.  Co.  V.  Detroit,  39  Mich.  543. 

In  such  case  the  company,  being  directed 
to  make  repairs,  asked  the  city  for  leave  to 
repave  with  cobblestones,  but  the  city  re- 
fused to  furnish  any  kind  of  material,  but 
made  no  objection  to  cobblestones,  and 
offered  no  suggestions     Held,  that  the  com- 


402 


STREET   RAILWAYS,  143,  144. 


I  r;^!i 


"  J 1 


! 


?!   t 


pany  might  use  any  fit  material  and  main- 
tarn  an  action  against  the  city  for  its  value. 
Ft.  Wayne  **  E,  St.  R.  Co.  v.  Detroit,  39 
Mich.  543. 

Where  an  ordinance  required  a  company 
to  repave,  using  material  for  the  purpose 
furnished  by  the  municipal  authorities,  un- 
less such  material  be,  in  fact,  furnished,  no 
recovery  can  be  iiad  against  the  company 
for  repaying  which  was  done  by  the  munic- 
ipality upon  the  company's  failure  to  do  it 
on  demand.  Norristown  v.  Norristown  Pass. 
Ji.  Co.,  148  Pa.  St.  87.  23  All.  Rep.  1060. 

143.  Miiuiciimlity  luaj'  relievo 
coiupauy  from  cost  of.— A  provision  of 
a  city  charter  by  which  "  the  common 
council  is  authorized  to  require  all  railroad 
companies  operating  street  railroads  in  any 
streets  of  the  city  to  repave  between  their 
tracks,  and  at  least  two  feet  in  width  on 
either  side  thereof,  whenever  the  common 
council  shall  deem  such  repavement  neces- 
sary," is  not  mandatory  so  as  absolutely 
to  bind  •.he  city  to  impose  the  expense  of 
paving  therein  specified  upon  the  company, 
but  merely  confers  a  discretionary  power 
upon  the  city  ;  and  an  assessment  which  pro- 
vides that  one  third  of  the  expense  of  re- 
paving  a  street  shall  be  borne  by  the  city 
and  two  thirds  by  the  abutting  lot  owners  is 
not  illegal.  Gilmore  v.  Utica,  43  Am,  &* 
Eng.  R.  Cas.  225,  121  iV.  K  561,  24  A^.  E. 
Rep.  1009,  31  A^.  Y.  S.  R.  880;  reversing  55 
//««  514,  29  A^.  y.  S.  R.  781.  9  N.  V. 
Supp.  912. 

A  special  act,  incorporating  a  street-rail- 
way company,  subjected  it  to  the  provisions 
of  all  cir<^in->M  3  of  the  city  then  existing 
or  tJi  ea.;>,. 
saiif'sr  railway; 
for  ..  ;  •  'tv  01  ( 
con.paii  KS  ':  1 
avenue,  o.  u' .^.v  spied  by  them.  Held, 
that  said  act  did  not  impose  upon  the  com- 
pany a  statutory  duty  of  pavmg  streets,  in 
such  a  sense  as  to  prevent  the  city  council 
from  terminating  its  obligation  to  pay  for 
such  paving  by  repealing  said  ordinance; 
the  duty  imposed  by  the  act  was  not  a  fixed 
but  a  shifting  one,  subject  to  regulation  or 
repeal  at  the  will  of  councils.  Philadelphia 
V.  Evans,  139  Pa.  St.  483,  21  Atl.  Rep.  200. 

144.  In  District  of  Columbia.  — 
The  board  of  public  works  has  no  authority 
to  enter  into  a  contract  for  paving  a  side- 
walk on  one  of  the  streets  around  the  capitol 
which  was  provided  for  in  the  Sundry  Civil 


')(■  f^assed,  regulating  pas- 

'  '  tlie  time  there  was  in 

<.iu<-.  imposing  upon  such 

f  paving  any  street, 


Appropriation  Act  of  March  3, 1873.  Wash- 
ington &'  G.  R.  Co.  V.  District  of  Columbia, 
iMacArth.  (D.  C.)  11. 

Certain  street-car  companies  in  the  Dis- 
trict of  Columbia  were  required  by  their 
charters  to  keep  their  tracks  and  the  adja- 
cent parts  of  the  streets  well  paved  and  in 
good  order  without  expense  to  the  United 
States  or  the  district.  The  companies 
failed  to  keep  the  streets  in  proper  condition. 
The  district,  under  its  general  duty  to  keep 
its  streets  in  good  condition,  did  the  work, 
and  sued  the  companies  to  be  reimbursed 
for  the  cost.  Held:  (i)  that  the  city  might 
recover  the  reasonable  cost  of  doing  the 
work  in  an  action  at  law  ;  (2)  that  after  the 
acceptance  of  their  charters  the  companies 
could  not  object  that  the  provision  requir- 
ing them  to  do  the  work  was  illegal  and 
could  not  be  enforced.  District  of  Colum- 
bia V.  Washington  &^  G.  R.  Co.,  4  Am.  &* 
Eng.  R.  Cas.  161,  i  Maciey  {D.  C.)  361. 

Such  charters  contained  a  provision  that 
nothing  therein  should  prevent  the  govern- 
ment from  altering  the  grades  or  otherwise 
improving  the  streets  and  avenues  where 
the  tracks  were  laid,  in  which  event  it 
should  be  the  duty  of  the  companies  to 
change  their  roadbeds  so  as  to  conform  to 
the  street  grade  and  pavement.  Held,  that 
the  companies  were  bound  to  do  the  neces- 
sary work  on  their  tracks  to  conform  to  a 
new  concrete  pavement  laid  by  the  district. 
District  of  Columbia  v.  Washington  &•  G. 
R.  Co.,  ^Am.S*  Eng.  R.  Cas.  161,  i  Mackey 
{D.  C.)  361.— Reviewed  in  Little  Rock  v. 
Citizens'  St.  R.  Co.,  56  Ark.  28. 

Certain  street-car  companies  in  the  dis- 
trict were  required  by  their  charters  to  keep 
their  tracks  for  the  space  of  two  feet  be- 
yond the  outer  rail,  and  the  space  between 
the  tracks,  at  all  times  well  paved  and  in 
good  order.  Held,  that  this  required  the 
companies  to  construct  a  pavement  where 
one  did  not  exist  along  their  roads.  Dis- 
trict of  Columbia  v.  Washington  &»  G.  R. 
Co.,  4  Mackey  (D.  C.)  214. 

The  district  authorities  had  the  right  to 
prescribe  the  materials  of  which  such  pave- 
ment should  be  composed,  and  if  the  pave- 
ment had  already  been  constructed,  might 
direct  it  to  be  removed,  and  a  pavement  of 
a  different  character  to  be  laid.  District  of 
Columbia  v.  Washington  &»  G.  R.  Co.,  4 
Mackey  (Z>.  C.)  214. 

Under  such  charter  provisions,  whenever 
tb'j  district  authorities  might   direct   the 


STREET   RAILWAYS,  145-147. 


403 


grade  of  a  street  or  the  character  of  a  pave- 
ment to  be  changed,  it  is  the  duty  of  the 
companies  to  conform  their  roads  to  the 
change ;  and  this  obligation  does  not  depend 
upon  notice  to  the  companies.  It  was  in- 
curred the  moment  they  had  Icnowledge 
that  a  change  was  begun  or  contemplated. 
District  of  Columbia  v.  Washington  6*  G, 
K.  Co.,^Mackey  {D.  C)  214. 

Upon  the  failure  of  such  companies  to  do 
ihe  work,  the  district  did  it  itself,  and  issued 
certificates  of  indebtedness  against  the  com- 
panies for  the  cost,  which  certificates  were 
sold  to  third  parties.  //</</,  that  the  dis- 
trict had  no  authority  to  issue  such  certifi< 
cates,  and  purchasers  thereol  had  no  right 
of  action  against  the  companies,  nor  did  the 
purchase  of  the  certificates  discharge  the 
liability  of  the  companies  to  the  district. 
District  of  Columbia  v.  Washington  &>  G,  Ji. 
Co.,  4  Mackey  (D.  C.)  214. 

145.  Tearing  up  pavement  iu  con- 
structiug  road  not  ground  for  in- 
junction.— The  removal  of  a  cobblestone 
pavement  from  streets  by  a  company  in  con- 
structing its  road  will  not  be  restrained  by 
injunction,  the  damages  being  consequen- 
tial only,  and  not  within  the  constitutional 
provision  on  the  subject.  Philadelphia  v. 
Empire  Pass.  R.  Co.,  3  Brews.  {Pa.)  547. 

146.  Injunction  to  restrain  a  pav- 
ing contract  refused. — The  refusal  of 
the  court  to  grant  a  preliminary  injunction 
to  restrain  a  contract  for  paving  in  Phila- 
delphia was  affirmed  in  a  case  where  the 
street  was  occupied  by  a  condemned  mac- 
adamized turnpike  and  by  a  street  railway 
which  had  paved  the  centre  of  the  street, 
the  contract  also  providing  for  keeping  the 
street  in  repair  for  three  years — the  court 
below  holding  that  the  macadamizing  and 
voluntary  paving  by  the  railway  company 
was  not  an  original  paving  "  by  the  owners 
of  the  property,"  under  the  ordinance  of 
April  1, 1859,  so  as  to  make  properly  owners 
liable  for  the  paving  ordered  by  the  city. 
Leake  v.  Philadelphia,  150  Pa.  St.  643,  24 
Atl.  Rep.  351.— Distinguishing  Frankford 
&  S.  P.  C.  Pass.  R.  Co.  V.  Philadelphia.  43 
Leg.  Int.  338,  4  Atl.  Rep.  550. 

147.  Bepaving  witli  more  costly 
material. — The  obligation  of  a  company 
under  its  charter  to  keep  the  street  em- 
bracing its  track  and  two  feet  on  each  side 
in  repair  does  not  require  it  to  repave  with 
a  new  and  different,  and  perhaps  more 
costly,  material.     Mayor,  etc.,  of  Baltimore 


V.  Scharf,  10  Am.  &•  Eng.  R.  Cas.  241,  54 
Md.  499. 

A  borough  ordinance  provided  that  a 
company  should  reconstruct  the  streets 
upon  which  its  tracks  were  laid,  with  the 
same  kind  of  material  used  by  the  borough 
authorities  in  the  remaining  portions  of 
said  streets,  between  its  tracks  and  at  least 
one  foot  additional  on  the  outside  of  the 
rail<;,  and  keep  the  same  in  good  order  and 
repair.  Held,  that  the  company  was  obliged, 
after  laying  its  tracks,  to  "reconstruct" 
the  street  once,  and  thereafter  to  keep  it  in 
good  order,  but  was  not  obliged  to  put  down 
a  new  and  improved  pavement  on  demand 
of  the  borough  authorities.  Norristown  v. 
Norristown  Pass.  R.  Co.,  148  Pa.  St.  87,  23 
Atl.  Rep.  1060. 

A  company  was  authorized  to  lay  its 
track  upon  a  street  which  had  been  mac- 
adamized at  the  expense  of  the  property 
owners.  The  ordinance  provided  that  the 
company  should  keep  in  repair  that  portion 
of  the  streets  and  avenues  traversed  be- 
tween the  tracks  and  a  space  of  one  foot  on 
each  side,  and  that  in  case  of  a  change  of 
grade  the  railway  should  be  changed  to  con- 
form to  the  new  grade  at  the  expense  of  the 
company.  The  borough  subsequently  re- 
solved to  pave  the  street  with  Belgian 
blocks,  and  notified  the  company  to  pave 
with  blocks.  The  company  refused  to  do 
the  paving  as  requested  and  merely  sunk  its 
rails  to  the  new  grade.  The  improvement 
was  accordingly  made  by  the  borough. 
There  was  evidence  that  the  space  between 
the  tracks  and  for  one  foot  outside  was  in 
bad  repair  before  the  improvement  was 
made.  Held,  that  the  question  of  the  com- 
pany's liability  for  the  paving  was  for  the 
jury,  and  that  a  verdict  and  judgment  for 
the  borough  should  be  sustained.  McKees- 
port  V.  McKeesport  Pass.  R.  Co.,  1 58  Pa.  St. 
447,  27  Atl.  Rep.  1006. 

A  city  ordinance,  to  be  valid,  must  not 
conflict  with  any  statute,  and  must  be 
reasonable.  So  where  the  charter  of  a  com- 
pany only  requires  it  to  bear  the  cost  and 
expense  that  may  be  necessary  upon  any 
street  on  account  of  laying  the  track,  an 
ordinance  requiring  it  to  pave  between  its 
rails  with  "  Nicholson  or  other  wooden  or 
concrete  pavement,"  which  would  exceed 
the  original  cost  of  the  road,  is  unreason- 
able, and  will  not  be  enforced.  Philadelphia 
V.  Empire  Pass.  R.  Co.,  3  Brews.  {Pa.)  570, 
7  Phila.  321. 


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STREET    RAILWAYS,  148-ino. 


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148.  Inipniriiigoblitsiitioii  of  cuii- 
tract.— An  act  of  the  legislature  passed 
after  the  making  of  a  contract  between  a 
city  and  a  company  autliorizing  the  con- 
struction of  a  city  railway,  and  the  paving 
of  the  portion  between  the  rails  by  the  com- 
pany at  itsown  expense,  which  act  authorizes 
the  mayor  and  aldermen  of  the  city  to  com- 
pel the  railway  company  to  pave,  not  only 
between  its  tracks,  but  three  feet  on  each 
side  of  the  track,  impairs  the  obligation  of 
the  contract,  and  is  therefore  invalid.  Cottst 
Line  R.  Co.  v.  Mayor,  etc.,  of  Savannah,  30 
Ftd.  Rep.  646. 

A  company  was  chartered  when  a  general 
law  was  in  force  reserving  the  right  to  the 
legislature  to  regulate  charters  or  franchisee, 
and  built  its  track  under  an  ordinance  re- 
quiring it  to  pave  only  between  its  rails. 
Subsequently  the  legislature  passed  a  law 
which  required  it  to  pave  not  only  between 
the  rails,  but  one  foot  outside.  Held,  that 
the  act  of  the  legislature  imposing  the 
additional  burden  did  not  violate  any  valid 
contract  between  the  company  and  the  city. 
Sioux  City  St.  R.  Co.  v.  Sioux  City,  78  Iowa 
742,  39  N.  IV.  Rep.  498.— Distinguishing 
Des  Moines  v.  Chicago,  R.  I.  &  P.  R.  Co., 
41  Iowa  569. 

149.  Yolniiiary  paving  does  not 
create  obligation  to  repave  or  re- 
pair.— Where  a  company  is  not  otherwise 
lx>und  to  pay  the  cost  of  paving  streets  on 
which  its  track  is  laid,  the  voluntary  paving 
of  the  middle  portion  of  the  street  will  not 
impose  upon  the  company  the  cost  of  there- 
after repairing  and  repaving  the  same. 
Leake  v.  Philadelphia,  150  Pa.  St.  643,  24 
At  I.  Rep.  351. 

160.  Wlieu  duty  to  pave  or  repair 
extends  to  wliole  street.  —  By  the 
Girard  company's  incorporating  act  of  April 
15,  1858  (P.  L.  300),  the  ordinance  of  July  7 
1857.  was  read  into  the  act  and  became 
as  much  a  part  of  the  law  of  the  com- 
pany's being  as  any  part  of  the  act  itself; 
|nd  by  the  merger  and  consolidation  of 
the  two  railway  companies  it  also  became 
|n  integral  part  of  the  defendant  company's 
Iharter.  Philadelphia  v.  Ridge  Ave.  Pass. 
fl.  Co.,  143  Pa.  St.  444,  22  Atl.  Rep.  695. 

An  ordinance  of  the  city  of  Philadelphia 
>f  July  7,  1857,  provided  that  all  street- 
railway  companies  should  be  at  the  "  entire 
cost  and  expense  of  maintaining,  paving, 
tepairing,  and  repaving  that  may  be  neces- 
•iry  upon  any  road,  street,  avenue,  or  alley 


occupied  by  thLiii,"  with  other  provisions 
subordinating  such  companies  to  the  general 
authority  and  power  of  the  municipality 
over  its  streets ;  and  that  "  any  passenger 
railroad  which  is  now  or  may  hereafter  be 
incorporated  *  ♦  *  shall  ♦  •  ♦  file  in  the 
office  of  the  city  solicitor  a  written  obliga- 
tion to  comply  with  the  provisions  of  this 
ordinance."  Pa.  Act  of  April  15,  1858, 
§§  7,  8,  incorporating  the  Girard  College 
Pass.  R.  Co.,  provided  that  the  councils 
might  establish  regulations  "  for  the  paving, 
repaving,"  etc.,  of  streets  occupied  after 
consent  of  councils  obtained  ;  that  the  com- 
pany should  keep  said  streets  in  "  perpetual 
good  repair  at  the  proper  expense  of  said 
company,"  and  should  be  subject  to  the 
ordinance  of  July  7,  1857.  An  ordinance 
was  enacted  May  5, 1858,  refusing  the  assent 
of  the  city  to  the  occupancy  of  its  streets  by 
said  company,  unless  within  ninety  days  it 
should  "  file  in  the  office  of  the  city  solicitor 
a  written  obligation  to  observe  and  be  sub- 
ject to  all  ordinances  of  the  city  in  reference 
to  passenger  railways  then  in  force  or  there- 
after to  be  passed,"  which  obligation  was 
executed  and  filed  on  July  29,  1858.  Said 
company  and  another  consolidated  into  the 
Ridge  Ave.  Pass.  R.  Co.  on  January  23, 1872, 
and  this  action  was  confirmed  by  the  legis- 
lature March  8,  1872,  with  a  provision  that 
"  all  the  provisions  in  the  charters  of  the  two 
companies  so  consolidated,  not  included  *n 
this  act,  are  repealed."  An  ordinance  of 
December  12,  1881,  provided  that  thereafter 
it  Ji'iould  be  unlawful  to  pave  with  cobble  or 
rubble  pavement  any  street  in  the  city,  or  to 
pave  the  gutters  of  any  street  with  bricks ; 
the  ordinance  not  to  apply  to  that  portion 
of  any  street  between  the  tracks  of  a  pas- 
senger-railway company,  and  not  to  affect 
existing  contracts.  In  1886  the  city  re- 
paved  with  Belgian  blocks  a  street  occupied 
by  the  Ridge  Ave.  R.  Co. — by  the  Girard 
College  R.  Co.  prior  to  said  merger — after 
notice  directed  by  resolution  of  councils, 
and  a  disregard  thereof,  and  subsequently 
brought  suit  against  the  Ridge  Ave.  com- 
pany to  recover  from  it  the  expense  incurred. 
Held,  not  error  to  admit  an  offer  of  the 
ordinances  subsequent  to  that  of  July  7, 
1857,  and  the  "  written  obligation  "  of  July 
29,  1858,  in  connection  with  the  other  evi- 
dence, no  condition  being  imposed  not  in 
harmony,  or  conflicting,  with  the  Girard 
company's  incorporating  act.  Philadelphia 
V,  Ridge  Ave,  Pass.  R.  Co.,  143  Pa.  St.  444, 


STREET   RAILWAYS,  151-154. 


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as  Atl.  Rtp.  695.— Distinguishing  Pitts- 
burgh's Appeal,  115  Pa.  St.  4.  Following 
Pittsburgh  &  B.  Pass.  R.  Co.  v.  Birmingham, 
51  Pa.  St.  41  ;  Pittsburgh  &  B.  Pass.  R.  Co. 
V.  Birmmgham,  80  Pa.  St.  72.— Quoted  in 
Detroit  V.  Ft.  Wayne  &  E.  R.  Co.,  90  Mich. 
646  i  Reeves  v,  Philadelphia  Traction  Co., 
152  Pa.  St.  153. 

Section  3  of  the  above  ordinance  declaring 
in  unequivocal  language  that  the  company 
should  be  at  the  entire  cost  and  expense  of 
maintaining,  paving,  repairing,  and  repaying 
that  maybe  necessary  upon  any  street  occu- 
pied by  it,  the  duty  of  the  company  to 
repair  or  repave,  when  either  is  adjudged 
necessary,  extends  to  the  entire  roadway 
from  curb  to  curb.  Philadelphia  v.  Ridge 
Ave.  Pass.  K.  Co.,  143  Pa.  St.  444,  22  Atl. 
Rep.  695.— Following  Passenger  R.  Co. 
V,  Philadelpliia,  2  W.  N.  C.  639. 

Tlie  necessity  for  repairing  or  repaving 
is  to  be  determined,  not  by  the  company, 
but  by  tlie  municipal  authorities ;  and  it  is 
the  special  province  of  the  latter  to  deter- 
mine liow  it  is  to  be  done,  whether  with  the 
same  kind  of  material  as  before,  cobble- 
stones in  this  instance,  or  with  a  different 
and  better  material,  in  this  instance  Belgian 
blocks ;  and,  in  this  case,  the  plaintiff  was 
entitled  to  recover.  Philadelphia  v.  Ridge 
Ave.  Pass.  R.  Co.,  143  Pa.  St.  444,  22  Atl. 
Rep.  695. 

151.  Right  to  stop  cars  while 
repftviiifif.— Contractors  to  repave  a  street 
will  be  enjoined  from  interfering  with  the 
operation  of  a  street  railway  thereon,  wWere 
the  work  can  be  done  without  such  inter- 
ference, though  at  a  slight  increase  of  ex- 
pense, and  where  the  city  has  not  attempted 
to  exercise  or  to  delegate  to  the  contractors 
the  power  to  stop  the  running  of  cars  while 
the  work  is  being  done.  Milwaukee  St.  R. 
Co.  V.  Adlam,  85  Wis.  142,  55  N.  W.  Rep. 
181.— Quoting  Hamilton  v.  Vicksburg,  S. 
&  P.  R.  Co.,  119U.  S.  280. 

152.  When  not  bound  to  pave  but 
to  repair. — A  city  granted  to  a  street-rail- 
way company  the  right  to  lay  its  tracks  on 
the  streets,  imposing  as  a  condition  that  the 
company,  "jis  respects  the  grading,  paving, 
macadamizing,  filling,  or  planking  of  ih". 
streets,"  should  keep  a  designated  number 
of  feet  "  in  good  repair  and  condition." 
Held,  not  to  require  the  company  to  grade 
and  pave,  only  to  keep  in  repair  after  grading 
and  paving.  Chicago  v.  Sheldon,  9  Wall. 
t£/.  S.)  50.  —  Followed  in  Central  Trust 


Co,  V.  Wabash,  St.  L.  &  P.  R.  Co.,  34  Fed. 
Rep.  254 ;  Parmclee  v.  Chicago,  60  111.  267 ; 
Western  P.  &  S.  Co.  v.  Citizens' St.  R.  Co., 
46  Am.  &  Eng.  R.  Cas.  176,  128  Ind.  525. 

A  city  ordinance  required  street-railway 
companies  to  bear  the  entire  cost  of  paving 
streets  on  which  their  tracks  were  placed. 
Subsequently  the  ordinance  was  amended 
so  as  to  require  the  company  to  keep  in 
order  all  streets  unpaved  at  the  time  of  the 
laying  of  its  rails,  until  the  same  should  be 
paved  by  the  adjoining  property  owners ; 
and  thereafter  the  company  was  required  to 
keep  the  pavement  in  order.  So  much  of 
the  original  ordinance  as  required  the  rail- 
road company  to  pave  was  repealed.  Held, 
that  thereafter  the  company  was  not  re- 
quired to  bear  the  cost  of  the  original  pave- 
ment, but  only  that  of  keeping  it  in  repair. 
Leake  v.  Philadelphia,  150  Pa.  St.  643,  24 
Atl.  Rep.  351. 

153.  Failure  to  pave  or  repair- 
Damages. — A  contract  between  a  city  and 
a  company  provided  that  the  latter  should 
keep  the  portion  of  the  streets  occupied  by 
it  in  repair,  "  under  the  direction  of  such 
competent  authority  as  the  common  council 
may  designate  " ;  but  both  parties  acted  for 
a  long  time  without  any  such  person  being 
designated.  Held,  that  the  failure  to  desig- 
nate such  person  is  no  defense,  where  the 
company  is  sued  for  failing  to  keep  the 
streets  in  repair.  Brooklyn  v.  Brooklyn  City 
R.  Co.,  57  Barb.  {N.  Y.)  497,  8  Abb.  Pr. 
N.  S.  356 ;  affirmed  in  47  N.  V.  475.— Dis- 
tinguishing Coombe  v.  Greene,  11  M.  & 
W.  480. 

And  the  cost  of  making  such  repairs  by 
the  city,  where  the  company  fails,  is  not  nec- 
essarily the  measure  of  damages.  Where 
an  individual  has  recovered  damages  against 
the  city  by  reason  of  the  company's  failing 
to  repair,  the  judgment  against  the  city  is 
the  measure  of  damages  in  its  action  against 
the  company.  Brooklyn  v.  Brooklyn  City  R. 
Co.,  57  Barb.  (N.  V.)  497,  8  Abb.  Pr.  N.  S. 
356 ;  affirmed  in  47  N,  Y,  475. 

b.  Repairs.* 

154.  Duty  to  repair  outside  the 
rails. — A  requirement  in  a  charter  of  a 
company  that  it  should  "  keep  the  surface  of 
the  street  inside  the  rails,  and  for  two  feet 

*  Duty  of  street  railways  to  keep  tracks  in  re- 
pair, see  note,  35  Am.  St.  Rkp  4S0. 


406 


STREET   RAILWAYS,  150-157. 


I 


EU;  „'« 


(our  inches  outside  tiiereof,  in  good  order 
and  repair"  construed  to  mean  tlie  full 
width  of  two  feet  four  inches  on  each  side 
of  the  tracic.  People  v.  Fort  St.  &»  E.  A". 
Co.,  41  Afu/i.  413. —Reviewed  in  Bing- 
hamton  v,  Binghamton  &  P.  D.  R.  Co., 
41  N.  Y.  S.  R.  83.  61  Hun  479,  16  N.  Y. 
Supp.  225. 

A  street-railroad  company  is  bound  to 
Iceep  its  tracks  in  good  order  and  repair, 
and  if  it  carelessly  or  negligently  fails  to  do 
BO,  and  an  injury  occurs  in  consequence 
thereof,  it  will  be  liable  in  damages ;  and 
its  general  duty  to  keep  its  tracks  in  good 
order  extends  not  only  to  the  track  itself, 
but  to  contiguous  portions  as  well,  so  as  to 
make  it  safe  for  those  who  have  a  right  to 
drive  across  it.  Conroy  v.  Twenty'third 
St.  R.  Co.,  52  /fow.  Pr.  (/V.  V.)  49. 

155.  When  extends  to  whole 
street.— By  the  charter  of  a  company,  it 
was  not  to  occupy  any  of  the  streets  of  the 
cities  or  boroughs  without  the  consent  of  the 
councils  of  said  cities  or  boroughs,  and 
was  required  to  keep  so  much  of  the  streets 
as  it  should  use  in  perpetual  good  repair. 
A  borough,  in  the  ordinance  giving  consent 
to  lay  the  road,  required  that  a  street  in 
which  the  road  was  laid  should  be  kept  in 
"  perpetual  good  order  and  repair  from  curb 
to  curb,  its  whole  length."  He/d,  that  the 
company  was  bound  to  keep  the  street 
cleansed  from  the  dirt  and  filth  necessarily  or 
casually  accumulating  thereon  from  its  or- 
dinary use  as  a  public  thoroughfare.  Pt'tts- 
burgh  &•  B.  Pass.  K.  Co.  v.  Birmingham, 
51  Pa.  St.  41.— Followed  in  Philadelphia 
V.  Ridge  Ave.  Pass.  R.  Co.,  143  Pa.  St,  444. 

The  charter  of  a  street  railway  provided 
that  it  should  keep  streets  used  and  occu- 
pied by  it  "in  perpetual  good  repair "  from 
"  curb  to  curb."  Held,  to  be  the  duly  of  the 
company  to  remove  from  a  street  an  unusual 
deposit  of  dirt  and  rock  washed  down  by  a 
heavy  rain.  Pittsburg  &>  B.  Pass.  R.  Co.  v. 
Pittsburg,  80  Pa.  St.  72.  —  Followed  in 
Philadelphia  7/.  Ridge  Ave.  Pass.  R.Co.,  143 
Pa.  St.  444. 

A  street-railway  company  is  under  obli- 
gation to  keep  in  repair  the  whole  width  of 
streets  used  and  occupied  by  them.  7V//r- 
teenth  <S-  F.  St.  Pass.  A'.  Co.  v.  Philadelphia, 
16  Phila.  (Pa.)  164.  —  FOLLOWING  Phila- 
delphia &  G.  F.  Pass.  R.  Co.  v.  Philadel- 
phia, It  Phila.  358. 

150.  Duty  to  repair  two  feet  out- 
Side  rails— Lessees.-The  general  powers 


conferred  upon  municipal  bodies  by  Fla. 
Act,  ch.  1688,  as  amended  by  the  act  Oi 
1877,  ch.  3024,  to  regulate,  improve,  alter, 
extend,  and  open  streets,  and  to  regulate 
and  control  the  construction,  grading,  and 
repairs  of  streets,  pavements,  and  sidewalks, 
invested  such  bodies  with  authority  to  im- 
pose by  ordinance  upon  street  railways 
operated  by  horses,  thereafter  to  be  con- 
structed, the  duty  to  keep  the  portions  of 
the  streets  between  the  tracks  of  said  rail- 
ways and  two  feet  on  each  side  in  as  good 
repair  and  condition  as  the  city  keeps  the 
balance  of  the  street  and  of  even  grade  with 
the  street.  State  ex  rel.  v.  Jacksonville  St, 
R.  Co.,  JO  Am.  &*  Ettg.  R,  Cas.  179,  29  Fla. 
590,  10  So.  Rep.  590. 

Although  a  street-railroad  company  be 
organized  under  a  statute  which  provides 
that  such  companies  shall  whenever  and  as 
required,  and  under  the  supervision  of  the 
proper  local  authorities,  have  and  keep  in 
permanent  repair  the  portion  of  every  street 
and  avenue  between  its  tracks  and  a  space 
two  feet  in  width  outside  thereof,  yet  where 
such  company  operates  the  railroad  as  the 
lessee  of  another  company  under  a  lease  by 
which  it  succeeds  to  all  the  rights  of  the 
lessor  and  operates  the  road  in  the  right  of 
the  lessor,  and  the  lessor  is  organized  under 
a  statute  which  simply  requires  it  to  restore 
the  street  or  highway  to  its  former  state,  or 
to  such  state  as  not  necessarily  to  have  im- 
paired its  usefulness,  the  provision  of  the 
act  under  which  the  lessee  is  organized  is 
not  applicable,  the  liability  of  the  lessee 
being  governed  by  the  statute  which  governs 
the  liability  of  the  lessor.  Gilmore  v.  Utica, 
43  Am.  6-  Etig.  R.  Cas.  225,  121  A'.  Y.  561, 
24  N.  E.  Rep.  1009,  31  A^.  K.  5.  R.  880;  re- 
versing 55  Hun  514,  29  A^.  Y.  S.  R.  781,9 
A^  Y.Supp.g\2. 

157.  Duty  to  repair  does  not  in- 
clude reconstructing  or  paving.— An 
ordinance  of  a  city  giving  the  privilege  of 
using  its  street  for  a  horse  railway,  and  re- 
quiring the  company  to  keep  and  maintain 
the  space  between  its  rails  and  for  two  feet 
on  either  side  of  its  track,  and  all  street 
crossings  along  its  line,  in  good  repair,  does 
not  impose  on  such  company  an  obligation 
to  reconstruct  the  street.  State  ex  rel.  v. 
Corrigan  Con,  St.  R.  Co.,  29  Am.  &*  Eng.  R. 
Cas.  591.  85  Mo.  263,  55  Am.  Rep.  361.— 
Distinguished  in  Detroit  v.  Detroit  City 
R.  Co.,  56  Fed.  Rep.  867.  Followed  in 
Western  P.  &  S.  Co.  v.   Citizens'  St.    R. 


STREET   RAILWAYS,  158-161. 


407 


Co.,  46  Am.  &  Eng.  R.  Cas.  176,  128  Ind. 
52$ ;  Kansas  v.  Corrigan,  86  Mn.  67. 

An  obligation  to  repair  a  street  is  not  an 
obligation  to  construct  thereon  a  new  pave- 
ment. State  IX  rel.  v.  Corrigan  Con.  St.  li, 
Co.,  29  Am.  &*  Eng-.  A'.  Cas.  591,  85  Afo.  263, 
55  Am.  Rep.  361.— Reviewing  Farrar  v. 
St.  Louis,  80  Mo.  379. 

Nor  could  the  city,  by  a  subsequent  ordi- 
nance, impose  on  the  company,  without  its 
consent,  such  additional  obligation  to  pave 
the  street.  Such  subsequent  ordinance  can- 
not be  sustained  on  the  ground  that  it  is  a 
proper  exercise  of  the  police  power  of  tiie 
city.  State  ex  rel.  v.  Corrigan  Con.  St.  R. 
Co..  29  Am.  &*  Eng.  R.  Cas.  591,  85  Afo.  263, 
55  Am.  Rep.  361.— Reviewed  in  Bingham- 
ton  V.  Binghamton  &  P.  D.  R.  Co.,  41  N. 
Y.  S.  R.  83,  61  Hun  479,  16  N.  Y.  Supp.  225. 

Nor  is  an  ordinance  of  the  city  requiring 
a  company  to  repair  the  street  between  the 
rails  and  nn  the  sides  of  such  railway  invalid 
as  being  a  surrender  by  the  city  of  its  cor- 
porate power  over  its  streets.  State  ex  rel. 
V.  Corrigan  Con.  St.  R.  Co.,  29  Am.  &•  Eng. 
R.  Cas.  591,  85  Mo.  263,  55  Am.  Rep.  361. 

168.  nor  grading  or  flilliig.— 

An  obligation  by  a  company  that  it  "shall 
at  all  times  keep  the  roadbed  of  said  rail- 
road in  good  repair,  and  shiill  keep  snid 
roadbed  up  to  the  level  of  the  streets;  in 
no  case  shall  said  roadbed  be  above  or 
below  the  city  grade  of  the  streets,  after 
said  streets  sliall  have  been  graded  by  the 
city  "—does  not  oblige  the  company  to  fill 
up  the  streets  beneath  its  track,  so  as  to 
keep  its  roadbed  on  a  level  with  the  street 
on  each  side  of  the  track.  Galveston  v. 
Galveston  City  R.  Co.,  46  Tex.  435,  13  Am. 
Ry.  Rep.  274.  —  Reviewed  in  Galveston 
City  R.  Co.  V.  Nolan,  3  Am.  &  Eng.  R.  Cas. 
387.  S3  Tex.  139. 

Such  obligation  merely  requires  the  road- 
bed to  be  kept  in  good  repair,  and  does  not 
bind  the  company  to  contribute  to  the  ex- 
pense of  grading  the  streets,  but  merely  to 
conform  to  and  keep  the  level  of  the  road- 
bed to  that  of  the  streets  when  graded. 
Galveston  v.  Galveston  City  R,  Co.,  46  Tex, 
435.  «3  Am.  Ry.  Rep.  274. 

160.  Switches.— Plaintiff  was  driving 
on  a  highway,  and  defendant's  cars  were 
turned  aside  by  a  defective  switch  that  con- 
nected defendant's  track  with  that  of  an- 
other company,  and  ran  against  plaintiff 
and  injured  him.  Defendant  contended  that 
it  was  not  liable,  because  the  other  company 


ought  to  have  made  the  repairs  on  the 
switch.  Htld,  that  this  was  not  material  ai 
to  plaintiff,  a  third  person.  The  switch  was 
so  much  a  part  of  defendant's  road  that  de- 
fendant was  liable  for  a  defect.  The  prin- 
ciple sic  utere  tuo  ut  alienum  non  ladas 
applies  to  defendant's  track  as  well  as  to  its 
cars.  McKenna  v.  Metropolitan  R.  Co.,  II3 
Mass.  55. 

A  company  owning  a  track  in  a  city  gave 
to  defendant  company  a  license  to  connect 
therewith  at  a  crosswalk,  the  latter  to  make 
all  necessary  switches,  the  company  own- 
ing the  track  agreeing  to  keep  the  pavement 
within  the  traclos  and  three  feet  on  each 
side  thereof  in  repair.  HeM,  that  this  did 
not  bind  defendant  to  keep  in  repair  a 
switch  on  the  crosswalk.  Lowery  v.  Brook- 
lyn City&'N.  R.  Co.,  76  N.  V.  28 ;  reversing 
4  Abb.  N.  Cas.  32.— DISTINGUISHING  Car- 
penter V.  Central  Park  &  E.  R.  R.  Co.,  11 
Abb.  N.  S.  4161  Fash  v.  Third  Ave.  R.  Co., 
I  Daly  150.— Distinguished  in  Wooley  v. 
Grand  St.  &  N.  R.  Co.,  3  Am.  &  Eng.  R. 
Cas.  398,  83  N.  Y.  121. 

100.  BridgeH.— A  street-railway  cor- 
poration whose  charter  requires  it  to  repair 
such  portions  of  all  bridges  in  a  city  as  are 
occupied  by  its  tracks  is  bound  to  repair 
that  portion  of  a  bridge  which  the  owner  of 
a  canal  has  built  over  the  canal,  and  which, 
as  against  the  city,  he  is  bound  to  repair: 
and  if  on  his  refusal  the  city  makes  *  > 
repairs,  and  recovers  judgment  against ' 
for  the  expense  thereof  and  costs,  he  can  re- 
cover from  the  corporation  the  amount  of 
the  damages  recovered  by  the  city  against 
him,  but  not  the  costs,  unless  he  defended 
the  suit  at  the  request  of  the  corporation, 
or  for  its  benefit,  or  after  notice  to  it  to 
come  in  and  defend.  Prop'rs  of  Locks,  etc., 
V.  Lowell  Horse  R.  Corp.,  109  Mass.  221. 

IGl.  Between  double  tracks.— Cal. 
Act  of  April  2,  1866,  §  2,  requiring  certain 
railroads  to  keep  the  space  between  the  rails 
in  thorough  repair  by  paving,  etc.,  refers  to 
the  space  between  its  rails  on  which  the  cars 
run  and  between  which  the  horses  travel, 
and  not  to  the  space  between  double  tracks. 
Robbins  v.  Omnibus  R.  Co.,  32  Cal.  472. 

The  definition  of  the  word  "track"  as 
used  in  a  former  act  will  be  considered  in 
determining  its  true  meaning  in  a  later 
act  which  is  in  effect  an  amendment  of  the 
first.    Robbins  v.  Omnibus  R.  Co.,  32  Cal.  472. 

Under  Mo.  Act  of  March  3,  1869,  §  3.  re- 
lating to  the  amount  of  taxes  to  be  paid  to 


408 


STREET   RAILWAYS,  102-166. 


'I 


the  city  of  St.  Louis  by  street-car  com- 
panies in  that  city,  and  providing;  that  it 
shall  be  in  lieu  of  all  taxes,  burdens,  and 
expenditures,  and  repairs  of  streets  outside 
of  their  tracks,  a  company  having  parallel 
tracks  on  the  same  street  is  not  liable  for 
the  expense  of  repairing  the  street  between 
the  tracks,  Sf,  Louis  v.  .SV.  /.oui's  A'.  Co.,  50 
Afo.  94,  3  Am.  Ay.  Rep.  237. 

102.  Uiity  to  repnir  after  iiotiro. 
— A  horse-railroad  comjiany  was  rt'quired 
by  its  charter  to  grade  and  keep  in  repair 
the  surface  of  the  street  for  a  space  not  less 
than  two  feet  in  width  on  encli  side  of  each 
rail.  Held,  that  where  an  injury  was  caused 
by  the  defective  condition  of  such  part  of 
the  street,  the  company  was  entitled,  before 
being  liable  to  a  suit,  to  written  notice  of 
the  injury,  under  the  Connecticut  statute  of 
1883,  p.  283,  which  provides  that  no  action 
for  an  injury  from  a  defective  highway  shall 
be  maintained  against  any  town,  city,  cor- 
poration, or  borough  unless  written  notice 
of  such  injury,  and  of  its  nature,  and  of  the 
place  of  its  occurrence,  sliiill  be  ^iven  within 
sixty  days.  Fields  v.  Hartford  &^  IV.  Horse 
H.  Co.,  54  Conn.  9.  4  All.  Rep.  105. 

1G3.  Duty  of  MiMHoiiri  railway  in 
St.  Louis.  — Defendant,  the  Missouri  rail- 
way company,  a  street  railroad  in  the  city 
of  St.  Louis,  is  bound,  under  the  charter 
and  ordinances  of  said  city,  to  keep  its 
streets  in  repair  to  the  extent  of  twelve 
inches  outside  of  the  rails,  along  an  exten- 
sion of  defendant's  road  from  its  former 
terminus  to  Tower  Grove  Park.  St.  Louis 
V.  Missouri  R.  Co.,  87  Afo.  151  ;  affirming 
13  Mo.  App.  524. 

104.  Wliat  streetN  company  mnst 
keep  in  repair.— Under  a  contract  by  a 
city  with  a  company,  giving  a  right  of  way. 
that  the  latter  should  keep  in  good  order 
and  condition,  from  curb  to  curb,  the  streets, 
intersections,  bridges,  etc.,  through  which 
its  tracks  pass,  it  cannot  be  claimed  that 
the  company  is  under  obligation  to  keep  in 
such  condition  streets  on  which  its  tracks 
do  not  pass,  and  which  extend  alongside  of, 
and  border  on,  middle  or  neutral  grounds, 
dividing  them,  comprised  between  curbs  or 
external  lines,  and  which  do  not  form  part 
of  thoroughfares  on  which  vehicles  usually 
circulate.  The  obligation  exists  only  as  to 
such  streets  and  spots  on  which  the  tracks 
actually  pass.  State  v.  New  Orleans,  C.  &> 
L.  R'  Co.,  43  Am.  &>  Eng.  R.  Cas.  276,  42 
La.  Ann.  550,  7  So.  Rep.  606. 


ion.  Riiiht  of  city  to  stop  oars 

wliile  repairing.  —  Street-railroad  com- 
panies are,  in  general,  authoriied  to  use  the 
streets  in  which  their  tracks  may' be  laid, 
in  a  manner  in  some  respects  differing  from 
the  ordinary  public  use,  and  to  some  extent 
modifying  the  rights  of  other  travelers  over 
those  streets.  But  the  use  of  *'  e  streets  is 
granted  to  them  only  in  common  witti 
others.  Their  franchise  does  not  give  them 
the  control  of  the  highways.  That  control 
remains  in  the  local  municipal  authorities, 
who  have  the  power  and  duty  to  regulate 
the  manner  in  which  the  franchise  of  the 
railway  corporation  is  to  be  exercised;  to 
|)rotcct  the  rights  and  promote  the  con- 
venience of  the  whole  public;  to  make 
needful  repairs  or  improvements  of  high- 
ways, etc.,  even  though  a  serious  interrup- 
tion to  the  use  of  the  railway  may  thereby  be 
rendered  unavoidable.  On  such  occasions 
the  owners  of  street  railways  must  submit 
to  a  temporary  stopping  of  their  cars. 
Middlesex  R.  Co.  v.  IVakefield,  103  Mass. 
261.— Reviewed  in  Binghamton  v.  Bing- 
hamion  &  P.  D.  R.  Co..  41  N.  Y.  S.  R.  83, 
61  Hun  479,  16  N.  Y.  Supp.  225. 

Where  a  company  fails  to  keep  a  street  in 
repair,  as  it  is  required  to  do  by  its  charter, 
and  fails  to  repair  after  notice,  the  city, 
through  its  officers,  may  make  the  repairs, 
and  in  doing  so  may  stop  the  running  of 
cars  when  necessary;  and  neither  the  com- 
pany nor  individuals  residing  on  the  line  of 
the  road,  and  inconvenienced  by  the  stop- 
ping of  the  cars,  can  interfere  by  injunction 
to  prevent  the  necessary  stopping  of  the 
cars.  Philadelphia  &*  G.  F.  Pass.  R.  Co.  v. 
Philadelphia,  11  Phila.  (Pa.)  358. —  FOL- 
LOWED IN  Thirteenth  &  F.  St.  Pass.  R.  Co. 
V.  Philadelphia,  16  Phila.  164. 

1«0.  Recovery  over  by  city  of 
damages  paid  tliird  persons.  —  Where 
a  company  contracts  with  a  city  to  keep  a 
portion  of  its  streets  in  repair,  in  con- 
sideration of  a  license  to  use  them  for  the 
purpose  of  its  road,  it  in  effect  contracts 
to  perform  that  duty  to  the  public  in  the 
place  and  stead  of  the  city,  which  is  under 
a  general  duty  to  keep  its  streets  safe  ;  and 
where  the  company  allows  a  street  to  In- 
come defective,  and  injury  results  to  an  in- 
dividual, who  recovers  damages  of  the  city, 
the  latter  may  recover  over  against  the  com- 
pany. As  between  the  city  and  the  com- 
pany, the  city  is  not  in  pari  delicto.  Brook' 
lyn  V.  Brooklyn  City  R.  Co.,  47  N.   Y.  475 ; 


STRIiET    RAHAVAYS,   1«7,  108. 


a/ftrmtug  J7  Barb.  497,  8  Abb.  Pr.  N.  S.  356. 
— DISTINGUISHINO  Coombc  V.  Greene,  11 
M.  &  W.  480.  —  Applied  in  People  v. 
Brooklyn,  65  N.  Y.  349.  Followed  !N 
McMahon  v.  Second  Ave.  R.  Co.,  75  N.  V. 
331.  Quoted  in  Oceanic  Steam  Nav.  Co. 
v.Compania  Tr.  Espanola,  47  N.  Y.  S.  K.  742. 

A  provision  in  the  license  of  a  street  rail- 
way that,  upon  its  failure  to  keep  the  street 
in  good  repair  for  eighteen  inches  on  each 
side  of  its  track,  the  council  may  terminate 
the  license  is  a  forfeiture  which  mny  be 
enforced  for  an  omission  of  duty,  but  does 
not  prevent  the  city  recovering  the  amount 
with  interest  of  a  verdict  for  damages  sus- 
tained by  it  in  favor  of  a  person  injured 
through  the  failure  of  the  company  to  keep 
the  street  in  repair.  Afayor,  etc.,  of  Troy  v. 
Troy  &»  L.  R.  Co.,  3  Z<i«x.  (A'.  K.)  270; 
affirmed  in  49  A'.  Y.  657,  mem. 

Where  a  company  agrees  to  indemnify  a 
city  from  all  claims  or  damages  for  which  it 
may  become  liable  by  reason  of  the  construc- 
tion or  operation  of  its  railway,  a  judgment 
recovered  against  the  city  by  a  person  in- 
jured through  the  failure  of  the  company  to 
keep  a  street  in  repair  is  competent  evi- 
dence in  an  action  by  the  city  to  recover  the 
amount  of  the  judgment  from  the  company. 
Mayor,  etc.,  of  Troy  v.  Troy  <S-  Z.  R.  Co.,  3 
Lans.  {JV.  V.)  270 ;  affirmed  in  49  A'^,  Y.  657, 
mem. 

And  the  company  cannot  claim  that  the 
city  officers  negligently  omitted  their  duty 
in  keeping  the  street  in  condition  and 
thereby  contributed  to  the  injury.  Mayor, 
etc.,  of  Troy  v.  Troy  &*  L.  R.  Co.,  2  Lans. 
(JV.  Y.)  270 ;  affirmed  in  49  A^.  Y.  657,  mem. 

An  agreement  between  a  company  and  a 
city  by  which  the  former  is  to  keep  the 
streets  occupied  by  it  in  good  repair  and  be 
liable  to  any  one  injured  through  its  failure 
to  do  so,  and  also  agrees  to  indemnify  the 
city  for  all  liability  in  respect  to  such  dam- 
age, will  not  relieve  the  city  from  liability 
to  a  person  injured,  though  it  will  have  an 
action  over  against  the  company.  Cariy 
v.  London,  43  Am.  &»  Eng.  R.  Cas.  279,  18 
Ont.  122. 

After  action  brought,  and  more  than  six 
months  after  the  occurrence  of  the  accident, 
the  company  was  made  a  defendant  on  the 
application  of  the  city.  Held,  that  the  six 
months'  limitation  clause  in  the  Railway 
Act  did  not  apply,  the  right  of  the  city 
against  the  street-railway  company  being 
one  of  contract       Carty  v.  London,  43  Am. 


Sm  Kng.  R.  Cas.  279, 18  Ont.  122.— Follow- 
ing Anderson  v.  Canadian  Pac.  R.  Co.,  17 
Ont.  747. 
KI7.  Injured  party  may  niio  com- 

pony.— Where  a  company  contracts  with  a 
municipality  to  perform  in  its  stead  the  duty 
resting  upon  it  of  keeping  its  streets  in  re- 
pair and  safe  for  the  passingc  of  the  public, 
and  where  a  cause  of  action  arises  against 
the  municipality  because  of  its  neglect  to 
perform  that  duty,  the  action  may  be 
brought  by  the  injured  party  against  the 
company.  McMahon  v.  Second  Ave.  R.  Co., 
75  M  K.  231  ;  affirming  11  //««  347.— FOL- 
LOWING Brooklyn  v.  Brooklyn  City  R.  Co., 
47  N.  Y.  475- 

108.  Recovery  by  city  of  cost  of 
repairs.  —  A  city  passed  an  ordinance 
granting  to  a  company  the  right  to  con- 
struct and  operate  a  street  railroad,  with  a 
provision  that  the  company  should  construct 
and  keep  in  order  and  repair  the  portion  of 
the  streets  included  betveen  the  rails  and 
switches,  in  the  same  manner  as  the  other 
portion  of  the  street  should  be  constructed 
and  repaired,  and  any  failure  to  do  so  should 
render  the  company  liable  to  the  city  in  an 
action  for  damages.  Ne/d,  that  such  ordi- 
nance did  not  divest  the  city  of  its  control 
of  the  streets,  or  abridge  its  right  to  improve 
the  same,  and  it  might  cause  new  improve- 
ments to  be  made,  including  the  part  occu- 
pied by  the  railway,  and  determine  the  kind 
of  improvements  to  be  made.  Columbus  v. 
Columbus  St.  R.  Co.,  32  Am.  &•  Eng.  R. 
Cas.  292,  45  Ohio  St.  98,  12  N.  E.  Rep.  651.— 
Following  New  Haven  v.  Fair  Haven  & 
W.  R.  Co.,  38  Conn.  422. 

And  if  the  company  should  fail  to  do  the 
work  so  required  of  it,  after  notice,  and  the 
city  then  causes  it  to  be  done,  it  may  re- 
cover the  reasonable  cost  thereof  against 
the  company  ;  and  it  is  not  essential  to  the 
liability  of  the  company  that  the  notice  to 
make  the  improvements  precede  the  letting 
of  the  contract  by  the  city.  It  is  sufficient 
if  such  notice  be  given  before  the  work  is 
done,  and  while  the  company  might  still 
perform  it.  Columbus  v.  Columbus  St.  R. 
Co.,  32  Am.  &>  Eng.  R.  Cas.  292,  45  Ohio  St. 
98,  \2  N.  E.  Rep.  6^1. 

In  such  case  where  the  company,  after 
such  notice,  permits  the  city  to  commence 
and  complete  the  work,  without  attempting 
to  perform  it  itself,  and  without  objection, 
and  with  knowledge  that  the  city  expected 
the  company  to  pay  for  the  same,  and  re* 


410 


STREET   RAILWAYS,  160-172. 


I  \(i 


I 


ceives  all  the  benefits  from  the  improvement, 
the  city  may  recover  the  reasonable  cost  of 
the  work  done,  although  the  notice  given 
does  not  conform  strictly  to  the  require- 
ments of  the  ord iiiance.  Columbus  v.  Colum- 
bus St.  R.  Co.,  32  Am.  <S-  E»g.  R.  Cas.  292, 
45  O^io  St.  98,  I?  N.  E.  Rep.  651. 

109.  Procedure— Enjoining  rontl 
asauiiisancc. — An  injunction  wasgnintcd 
restraining  a  street-railway  company,  on  the 
ground  of  nuisance,  from  using  its  railway 
unless  by  a  day  named  it  should  put  the 
same  in  good  repair,  to  the  satisfaction  of 
an  engineer  named,  who,  on  the  day  ap- 
pointed, reported  the  railway  in  -jch  a  state 
of  repair  as  the  decree  in  the  cause  required. 
Two  years  afterwards  said  railway,  as  also 
other  lines  laid  in  the  meantime  by  the  ^nme 
company,  had,  as  was  alleged,  been  allowed 
to  go  into  such  a  state  of  disrepair  as  to  be- 
come again  a  nuisance,  whereupon  a  petition 
was  filed  by  the  relators,  alleging  these  facts 
and  claiming  the  benefit  of  the  decree.  Held, 
that  as  the  decree  had  already  been  com- 
plied with,  a  new  information  must  be  filed 
to  obtain  the  relief  now  asked.  Attorney- 
Generals.  Keify,  22  Grant's  Ch.  {U.  C.)  458. 

c.  Restoration  of  Street. 

170.  Duty  to  restore  street  or 
highway,  generally."'— Although  a  stat- 
utory provision  that  a  railroad  company 
r  ay  construct  its  road  "  along  or  upon  ♦  ♦  * 
any  street  or  highw  "  but  that  the  "  com- 
pany shall  restore  !)e  street  or  highway 
*  ♦  ♦  to  its  former  state,  or  to  such  state  as 
not  necessarily  to  have  impaired  its  useful- 
ness," requires  a  company  not  only  to  restore 
a  street  to  its  former  state  so  as  not  unnec- 
essarily to  impair  its  usefulness,  but  also  to 
keep  the  portion  of  tlie  street  used  by  it  in 
a  reasonable  state  of  repair,  it  does  not  bind 
the  company  to  conform  its  repairs  to  the 
absolute  directions  and  requirements  of  the 
municipality  whenever  the  municipality 
shall  resolve  to  pave  or  repave  a  street. 
Gilmore  v.  Utica,  ^-^  Am.  &•  Eng.  R.  Cas. 
225,  121  N.  V.  561,24  A^.  E.  Rep.  1009,  31 
N.  V.  S.  R.  880;  reversing  55  /fun  514,  29 
A^.  V.  S.  R.  7S\,gN.  V.  Supp.  912. 

171.  Duty  to  "  reconstruct "  street 
uot  a  continuing  one.— A  borough  or- 


•  Duty  of  street  railways  to  pave,  repair,  and 
reconstruct  streets  occupied  by  tracks,  see  note, 
50  Am.  &  Eng.  R.  Cas.  454. 


dinance  provided  that  a  street-car  comp&ny 
should  "  reconstruct "  the  streets,  between 
tracks  and  for  one  foot  outside  of  the  rails, 
with  the  same  materials  used  for  macadam- 
izing the  rest  of  the  street.  Held,  that 
when  the  street  was  once  "  reconstructed  " 
as  required,  the  duty  of  the  company  was 
ended,  and  it  could  not  be  compelled  to  put 
down  new  material  subsequently  adopted 
by  the  borough  for  other  parts  of  the  streets. 
Norrr'Uown  v.  Norristvwn  Pass.  R.  Co.,  148 
Pa.  St.  87.  23  At  I.  Rep.  1060. 

172.  Power  of  city  to  order 
changes  to  insure  greater  safety.— 
How.  Mich.  St.  §  3554  empowers  a  city 
council  to  prescribe  such  rules  and  regula- 
tions regarding  street  railways  as  may  be 
required  for  the  grading  and  paving  of  the 
streets  occupied  by  them ;  and  in  the  exer- 
cise of  the  power  thus  conferred,  as  well  as 
that  conferred  by  the  charter  respecting  the 
determination  of  the  character  of  all  im- 
provements, the  council  has  the  undoubted 
authority  to  determine  what  is  necessary  or 
required,  and  whether  any  particular  method 
of  construction  of  their  roadways  interferes 
with  the  durability  or  preservation  of  a 
proposed  pavement,  and  to  prescribe  such 
reasonable  changes  in  the  mode  of  con- 
struction as,  in  the  judgment  of  the  council, 
will  preserve  and  protect  the  proposed  im- 
provement. Detroit  v.  Ft.  JVayne  &•  E.  R. 
Co.,  50  Am.  &*  Eng.  R.  Cas.  447,  90  Mich. 
646,  51  A^.  W.  Rep.  688.— Quoting  Phila- 
delphia V,  Ridge  Ave.  Pass.  R.  Co.,  143  Pa. 
St.  444,  22  Atl.  Rep.  695. 

Defendant  corporation,  in  pursuance  of  a 
statute,  acquired  land  for  the  purpose  of  a 
highway,  and  constructed  a  turnpike  there- 
on, but  subsequently  constructed  a  street 
railway  on  the  road,  so  near  one  side  of  the 
road  that  vehicles  could  not  pass  on  one 
side  of  the  track,  and  with  the  rails  so 
raised  as  to  interfere  with  driving  across 
the  track.  Plaintiff  city  condemned  a  por- 
tion  of  the  road  for  a  public  street,  and  the 
company  accepted  the  compensation  award- 
ed, and  the  city  council  passed  an  ordinance 
requiring  the  company  to  lay  its  rails  flush 
with  the  grade  of  the  street.  Held,  that  the 
company  was  estopped  from  objecting  to 
the  condemnation  proceedings.  If  they 
were  invalid,  it  should  have  appealed.  Al- 
bany v.  Watervliet  T.  <S-  R.  Co.,  108  A';  Y. 
14,  13  A'.  Y.  S.  R.  525,  15  N.  E.  Rep.  370, 11 
Cent.  Rep.  85 ;  affirming  45  Hun  442,  12  N. 
Y.  S.  R.  443. 


STREET   RAILWAYS,  173-176. 


411 


ipany 
ween 
rails, 

idam- 
that 

cted  " 


173.  Conforming  to  street  grade.* 

— A  municipal  ordinance  granting  a  fran- 
chise for  a  street  railray  provided  that "  the 
roadbed  shall  at  all  times  correspond  with 
the  actual  grade  of  the  streets  "  ;  that  the 
railway  shall  be  operated  "  on  such  streets 
as  have  heretofore  been  or  hereafter  may  be 
established  by  the  city  "  ;  and  that  in  case 
of  change  by  the  common  council  in  the 
actual  grade  of  any  of  the  streets  the  com- 
pany "  shall  relay  the  track  of  said  railway 
to  correspond  to  such  grade,  at  its  own 
expense."  Held,  that  the  company  must 
bear  all  the  expense  of  raising  the  grade  of 
its  roadbed  and  track  to  correspond  with  a 
change  made  in  the  grade  of  a  street.  Ash- 
land St.  R,  Co.  V.  Ashland,  78  Wis.  271,  47 
N.  IV.  ;?<■/).  619.— Reviewed  in  Little  Rock 
V.  Citizens'  St.  R.  Co.,  56  Ark.  28. 

174.  Obstructing  street  by  throw- 
ing snow  from  truck.— Plaintiff  com- 
pany is  not  authorized  by  its  charter  (N.  Y. 
Laws  i860,  ch.  513),  providing  that  it  shall 
run  as  often  as  the  convenience  of  passen- 
gers shall  require  and  that  the  mayor  and 
common  council  shall  do  no  act  to  hinder, 
delay,  or  obstruct  the  operation  of  said  rail- 
road, to  throw  the  snow  from  its  track,  for 
the  purpose  of  keeping  it  open,  upon  the 
street  along  its  line  so  as  to  impede  or  pre- 
vent public  travel  thereon.  Broadway  &» 
S.  4.  R.  Co.  V.  Afayor,  etc.,  of  N.  Y.,  49  Hun 
126,  16  A^.  Y.  S.  R.  950,  I  N.  Y.  Supp.  646. 

If  it  had  been  the  intention  of  the  legisla- 
ture to  confer  upon  the  company  the  rights 
claimed  by  it,  and  the  immunity  from  in- 
terference, the  statute  would  be  invalid. 
The  police  power  of  the  state  cannot  be 
alienated,  surrendered,  or  abridged  by  the 
legislature  by  any  grant,  contract,  or  dele- 
gated power.  Broadway  &*  S.  A.  R.  Co.  v. 
Mayor,  etc.,  of  N.  \ '.,  49  Hun  126,  16  jV.  Y. 
S.  R.  950.  I  N.  Y.  Supp.  646. 

175.  Failiirr  )f  company  docs  not 
relieve  city  oi  liability.— The  charter 
of  a  horse-car  company  in  a  city  provided 
that  "  said  corporation  shall  put  all  streets 
and  highways,  and  every  portion  thereof, 
over  or  thrbugh  which  they  shall  lay  any 
rails,  in  as  good  condition  as  they  were 
before  the  same  were  laid ;  and  they  shall 
keep  and  maintain  in  repair  such  portions 
of  the  streets  and  highways  as  shall  be  oc- 
cupied by  their  tracks,  and  shall  be  liable 
for  any  loss  or  injury  that  any  person  shall 

*  See  also  tfH/«,  124. 


sustain  by  reason  of  any  carelessness,  neg* 
lect,  or  misconduct  of  its  agents  and  ser- 
vants in  the  management,  construction,  or 
use  of  said  tracks  or  streets;  and  in  case 
any  damage  shall  be  recovered  against  said 
towns  or  the  said  city,  by  reason  of  any  such 
misconduct,  defect,  or  want  of  repairs,  said 
corporation  shall  be  liable  to  pay  to  such 
towns  and  city  respectively  any  sums  thus 
recovered  against  them,  together  with  all 
costs  and  reasonable  expenditures  incurred 
by  them  respectively  in  the  defense  of  any 
such  suit  or  suits,  in  which  recovery  may  be 
had  ;  and  said  corporation  shall  not  incum- 
ber any  portion  of  the  streets  or  highways 
not  occupied  by  said  tracks."  In  an  action 
against  the  city  to  tecover  damages  for 
injuries  caused  by  a  defective  highway, 
which  was  made  unsafe  by  work  done  by  the 
company  on  its  track — held:  (i)  that  the 
city  was  liable  for  neglecting  to  keep  its 
streets  safe  and  convenient  for  public  travel ; 
(2)  that  the  duty  resting  upon  a  town  or 
city  to  keep  its  highways  safe  and  conven- 
ient is  a  public  duty,  and  that  it  has  no 
power,  unless  authorized  by  statute,  to 
divest  itself,  either  by  contract  or  ordinance, 
of  its  capacity  to  discharge  this  duty.  Wat- 
son  v.  Tripp,  \i  R,  I.  98. 

The  liability  of  the  company,  as  above 
stated,  is  a  matter  which  may  be  considered 
by  the  jury  in  determining  whether  or  not 
the  city  has  been  guilty  of  any  culpable 
neglect  or  want  of  reasonable  care.  Watson 
V.  Tripp,  II  R.I.  98. 

%  Liability  for  Defective  Construction. 

176.  Liability,  generally.  —  In  case 

the  defective  condition  of  a  public  street  is 
caused  by  the  fault  or  neglect  of  a  street- 
car company  in  the  manner  in  which  its 
track  is  laid,  or  by  its  failure  to  keep  the 
streets  traversed  by  its  track  in  good  repair 
and  safe  for  use  by  the  public,  such  corpo- 
ration must  answer  for  the  consequences. 
Cline  V.  Crescent  City  R  Co.,  41  La.  Ann. 
\oi\,6  So.  Rep.  851 ;  further  appeal ^i  La. 
Ann.  327,  9  So.  Rep.  122. 

Where  a  wagon  is  driven  from  a  street- 
railway  track,  and  the  occupant  is  thrown 
from  it  by  the  jolt  of  the  wagon,  incident 
only  to  the  turning  off  the  track,  the  com- 
pany is  not  liable  in  damages.  Nrvette  v. 
New  Orleans  &*  L.  S.  R.  Co.,  42  La.  Ann. 
1X^3,  S  So.  Rep.  S8i. 


•;i5  < ;  J 


Mi^ii: 


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m- 


4m 


STREET   RAILWAYS,  177. 


Proof  of  the  general  bad  condition  of  the 
street  alone  is  not  sufficient  to  enable  plain- 
tiff to  recover.  The  proof  must  be  specific 
that  the  accident  was  caused  by  the  defect 
in  the  street  specially  alleged  and  referred 
to  in  the  petition  as  the  immediate  cause  of 
the  accident.  Nivette  v.  New  Orleans  &*  L. 
S.  R.  Co.,  42  La.  Ann.  1153.  8  So.  Rep.  581. 

A  street-railroad  company  which  has  con- 
tracted with  a  city,  as  a  consideration  for 
its  franchise,  to  keep  a  portion  of  its  streets 
in  good  order  and  repair  is  responsible  in 
direct  action  by  any  person  who  suffers 
special  damage  resulting  from  its  unlawful 
failure  to  do  so.  Ober  v.  Crescent  City  R. 
Co.,  52  Am.  &*  Eng.  R.  Cas.  576, 44  La.  Ann. 
1059,  II  So.  Rep.  818. 

The  right  of  a  company  to  lay  its  tracks 
in  a  street  or  public  highway  carries  with 
it  the  obligation  to  lay  them  in  a  proper 
manner  and  to  keep  them  in  repair;  and  if 
an  injury  occurs,  by  reason  of  a  neglect  in 
either  of  these  respects,  it  is  liable.  IVorster 
V.  Forty-second  St.  &•  G.  S.  F.  R.  Co.,  50  A'.  Y. 
203,  3  Am.  Ry.  Rep.  537  ;  affirming  3  Daly 
278.— Following  Fash  v.  Third  Ave.  R. 
Co.,  I  Daly  148.— Distinguished  in  Egan 
V.  Forty-second  St.,  M.  &  St.  N.  A.  R.  Co., 
4  N.  Y.  Supp.  530. 

If  the  defect  be  visible,  notice  to  the 
company  of  such  defect  is  not  necessary. 
An  omission  to  know  of  such  a  defect  is 
prima  facie  negligence,  as  much  as  an 
omission  to  repair  after  notice.  And  the 
presumption  of  negligence  is  complete  when 
it  appears  that  the  defects  existed,  and  an 
injury  was  caused  thereby.  Rockwell  v. 
Third  Ave.  R.  Co.,  6^  Barb.  (N.  K.)438;  af- 
firmed  in  53  iV.  Y.  625,  mem. 

A  company  using  a  public  street  by  per- 
mission of  the  city  council  must  so  con- 
struct its  track  as  not  unnecessarily  to  im- 
pede travel,  nor  to  render  travel  over  and 
across  the  street  more  dangerous  to  persons 
exercising  ordinary  prudence  and  skill  than 
it  would  be  but  for  such  track  being  there 
in  the  condition  it  was.  Houston  City  St. 
R.  Co.  V.  Delesdernier,  84  Tex.  82,  19  S.  W. 
Rep.  366. 

177.  Leaving  track  above  street 
grade.  —  Plaintiff's  sleigh  was  upset  by 
striking  against  a  switch  that  had  been  laid 
down  by  defendant  to  connect  its  tracks 
with  those  of  another  road  over  which  it  ran 
its  cars.  The  evidence  tended  to  show  that 
the  switch  was  higher  above  the  pavement 
than  was  necessary  or  reasonable ;  that  de- 


fendant had  put  salt  on  its  tracks,  which  had 
melted  the  snow  and  caused  the  slush  to 
ran  down  and  cover  the  switch  from  sight. 
Accidents  had  frequently  happened  to  other 
passing  vehicles  from  the  same  cause.  Held, 
in  an  action  to  recover  damages,  that  the 
evidence  justified  the  submission  of  defend- 
ant's negligence  to  a  jury.  Wooley  v.  Grand 
St.  &•  N.  R.  Co.,  3  Am.  5-  Eng.  R.  Cas.  398, 
83  N.  Y.  121. 

A  contract  between  a  city  and  a  company 
required  the  latter  to  build  its  track  so  as 
not  to  impede  travel  on  the  streets  after 
the  streets  should  be  graded,  and  required 
the  company  to  keep  its  roadbed  in  good  re- 
pair, up  to  the  level  of  the  streets,  and  that 
in  no  case  should  it  be  below  the  city  grade 
of  the  streets  after  they  were  graded.  Held, 
that  the  company  was  under  no  obligation 
to  fill  up  the  streets  beneath  its  track  so  as 
to  have  its  roadbed  on  a  level  with  the 
street,  but  was  bound  to  keep  the  level  of 
the  roadbed  up  to  that  of  the  street  when 
graded.  The  company  incurred  no  liability 
for  failing  to  conform  its  track  to  irregular- 
ities in  the  street  when  once  it  had  been 
constructed  in  accordance  with  an  estab- 
lished  grade.  And  it  did  not  follow  that 
carriage  travel  was  impeded  because  per- 
sons could  not  cross  with  reasonable  safety 
at  all  points.  Galveston  City  R.  Co.  v.  Nolan, 
3  Am.&'  Eng.  R.  Cas.  387.  53  Tex.  139.— 
Reviewing  Galveston  v.  Galveston  City  R. 
Co.,  46  Tex.  435. 

Defendant's  charter  compelled  it  to  lay  its 
rails  flush  with  the  street,  and  to  make  the 
track  conform  to  the  grades  of  the  same,  so 
as  to  offer  the  least  possible  impediment  to 
the  ordinary  traffic  of  the  street.  Held, 
that  having  so  laid  the  rails,  it  was  not 
bound  to  alter  and  adapt  them  from  time  to 
time  to  changes  n.  the  level  of  the  street ; 
and  therefore  that  it  was  not  liable  for  an 
accident  arising  from  the  street  having  be- 
come worn  down  by  traffic  so  as  to  leave 
the  rail,  which  remained  as  originally  laid 
several  inches  above  the  level.  Eddy  v. 
Ottawa  City  Pass.  R.  Co.,  31  U.C.  Q.  B.  569. 

A  company  was  bound  by  its  charter  to 
keep  its  rails  on  a  level  with  the  roadway. 
The  rails  were  not  so  kept,  and  damage  re- 
sulted to  plaintiffs  using  the  streets  with 
their  horses  and  carriages.  Held,  that  a 
right  of  action  was  not  defeated,  although 
the  course  adopted  for  avoiding  the  damage 
might  not  be  the  best,  provided  the  efforts 
to  escape  injury  were  earnest  and  sincere 


STREET   RAILWAYS,  178-180. 


413 


and  not  grossly  inappropriate.  Conlon  v. 
Cily  li.  Co.,  8  N(n>,  Sc,  209. 

178.  Iieaviiig  spikes  or  splinters 
projecting^  from  rail.  —  A  company 
which  neglects  to  iceep  its  road  and  tracks 
in  good  condition  is  liable  to  a  party  injured 
by  a  fall  on  a  loose  rail  and  protruding 
spike,  in  consequence  of  which  his  skull  is 
fractured  or  perforated,  Cline  v.  Crescent 
City  R.  Co.,  43  Lii.  Ann.  327,  9  So.  Rep.  122. 

Where  plaintiff  shows  that,  while  lawfully 
on  the  street,  he  was  injured  by  a  splinter 
projecting  from  a  rail  upon  defendant's  rail- 
road,  and  that  defendant  wiis  in  the  habit 
of  allowing  such  defective  rails  to  remain 
after  knowledge  of  their  condition,  notice 
to  the  company  of  the  defect  was  unneces- 
sary, Rockwell  V.  Third  Ave.  R.  Co.,  64 
Barb.  {N.  Y.)  438  ;  affirmed  in  53  N.  V.  625, 
mem. 

The  right  to  lay  a  street-car  track  on  a 
highway  implies  the  duty  to  lay  it  properly 
and  to  keep  it  in  proper  condition.  So 
where  a  pavement  sinks,  which  leaves  a 
spike  in  a  rail  so  exposed  as  to  interfere 
with  a  passing  carriage  and  throw  the  oc- 
cupant out  and  injure  him,  the  company  is 
guilty  of  such  negligence  as  to  render  it 
liable.  FasA  v.  Third  Ave.  R.  Co.,  i  Daly 
(N.  V.)  148.  —  Followed  in  Worster  v. 
Forty  second  St.  &  G.  S.  F.  R.  Co.,  50  N. 
Y.  203;  Worster  v.  Forty-second  St.  &  G, 
S,  F.  R.  Co.,  3  Daly  278. 

In  such  case  it  is  wholly  immaterial 
that  the  projecting  spike  was  caused  by 
the  failure  of  the  city  to  repair  the  street, 
where  the  evidence  shows  that  the  accident 
would  not  have  happened  if  the  company 
hal  not  permitted  the  spike  to  project. 
•asAv.  Third  Ave.  R.  Co.,  i  Daly(N.  V.)  i^%. 

17i>.  Leaviiiff  holes  in  or  about 
rack. — A  company  undertaking  to  lay  a 
*r.>ck  along  a  public  road  is  bound  to  lay  it 
properly  and  keep  it  in  a  safe  condition, 
and  it  is  a  question  for  the  jury  whether  it 
has  done  so  or  not.  So  where  a  company  is 
sued  for  injuries  to  a  horse,  caused  by  step- 
ping into  a  hole  between  the  rails,  it  is  error 
to  take  the  case  from  the  jury  on  the 
ground  of  defendant's  want  of  notice  of 
the  defect.  IVorster  v.  Forty-second  St.  &* 
G.  S.  F.  R.  Co.,  3  Daly  {N.  Y.)  278  ;  affirmed 
in  50  A'.  Y.  203,  3  Am.  Ry.  Rep.  537.— 
Following  Fash  v.  Third  Ave.  R.  Co., 
I  Daly  148. 

Plaintiff  sued  for  an  injury  received  in 
slipping  into  a  hole  between  the  rails  of  de- 


fendant's horse-car  track,  on  a  street ;  but 
there  was  no  evidence  that  it  was  the  duty 
of  the  company  to  keep  the  place  in  repair, 
it  appearing  that  the  city,  and  t.ot  the  com- 
pany, had  control  of  the  place  ;  nor  that  the 
construction  of  the  track  was  defective  ;  nor 
that  there  was  any  statute  requiring  it  to 
keep  the  space  between  its  rails  in  repair. 
Held,  that  the  complaint  was  properly  dis- 
missed. Ej;;an  v.  Forty  second  St.,  M.  &•  St, 
N.  A.  R.  'Co.,  4  N.  Y.  Supp.  530,  19  A^.  K. 
S.  R.  676.— Distinguishing  Worster  v. 
Forty-second  St.  &  G.  S.  F.  R.  Co.,  50  N.  Y. 
203;  Wasmer  v.  Delaware,  L.  &  W.  R.  Co., 
80  N.  Y.  212  ;  Gale  v.  New  York  C.  &  H. 
R.  R.  Co.,  76  N.  Y.  594. 

A  street-car  company  was  sued  for  inju- 
ries to  a  horse,  caused  by  its  slipping  into  a 
depression  between  the  tracks.  A  statute 
required  the  company  to  keep  that  portion 
of  the  street  in  repair,  but  it  appeared  that 
the  depression  in  question  was  constructed 
by  the  city  several  years  before  the  accident, 
and  was  in  the  same  condition  as  when  con- 
structed. Held,  that  the  company  was  not 
liable,  as  it  was  only  bound  to  make  repairs. 
The  city  alone  was  liable.  Snell  v.  Roches- 
ter R.  Co.,  64  Hun  476.  46  A'^,  Y.S.  7?.  441, 
19  A^.  Y.  Supp.  496. 

180.  Construuting  drain  nnder  di- 
rections of  city. — Plaintiff,  while  cross- 
ing a  street  at  night,  stepped  into  a  depres- 
sion in  the  paving,  extending  under  the 
track  of  a  passenger-railway  company.  Her 
foot  thus  getting  under  one  of  the  rails,  she 
was  tripped  up  thereby,  fell,  and  was  injured. 
Held,  that  it  was  the  duty  of  the  company 
to  keep  the  paving  in  repair,  but  as  the  de- 
pression in  question  was  maintained  under 
the  direction  of  the  city,  as  a  means  of 
draining  the  street,  and  was  kept  in  the  con- 
dition in  which  the  city  required  it  to  be 
kept,  the  company,  being  subject  to  the  city's 
control  as  to  the  maintenance  and  repair  of 
the  street,  was  not  chargeable  with  negli- 
gence in  maintaining  the  drain  as  directed 
by  the  city,  and  was  not  responsible  for 
plaintiff's  injury,  if  its  sole  cause  was  the  ex- 
istence of  the  drain.  Campbell  v.  Frank- 
ford  6-  S.  C.  R.  C».,  139  Pa.  St.  522,  21  Atl. 
Rep.  92, 

The  company  would  be  liable  for  the  in- 
jury, if  caused  by  its  negligence  in  failing 
to  keep  the  drain  in  repair ;  but  the  condi- 
tion in  which  it  maintained  the  drain  as 
prescribed  by  the  city  cannot  be  evidence  of 
such  negligence,  nor  can  the   occurrence 


^ 


414 


STREET   RAILWAYS,  181-183. 


M  ft 


1:1 

y 

!  1 

:'!'i 


111 


there  of  other  accidents  while  so  main- 
tained. Campbell  v.  Frankford  &*  S,  C.  /?. 
Co.,  139  Pa.  St.  522,  21  .4//.  /e<f/.  92 

Nor  is  an  alteration  in  the  size  of  the 
drain,  after  the  accident  to  plaintiff,  made 
by  the  city  or  under  its  direction  m  con- 
nection with  repairs  rendered  necessary  by 
the  tearing  up  of  the  street  for  purposes  not 
connected  with  the  railway,  evidence  of 
such  negligence.  Campbell  v.  Frankjord  &* 
S.  C.  li.  Co.,  139  Pa.  St.  522.21  Atl.  Rep.  92. 

181.  Bight  to  throw  dirt  ou  street. 
— A  company  is  not  guilty  of  negligence  in 
excavating  and  throwing  up  earth  in  the 
street  while  engaged  in  repairing  and  laying 
its  track  ;  and  a  decluration,  in  which  plain- 
tiff claims  to  recover  damages  for  injuries  to 
his  carriage  by  reason  of  its  being  driven 
onto  such  an  obstruction  and  capsized, 
which  fails  to  aver  that  the  earth  was  al- 
lowed to  remain  in  the  street  for  an  unrea- 
sonable time,  or  in  the  night-time,  or  with- 
out lights  or  barriers  as  warnings,  and 
which  fails  to  aver  that  the  driver  was  exer* 
cising  due  care,  fails  to  set  forth  a  cause  of 
action.  Cowan  v.  Muskegon  R.  Co.,  84 
Mich.  583,  48  A'.  IV.  Rep.  166. 

A  company  is  not  guilty  of  negligence  in 
allowing  material  taken  from  between  its 
rails  while  repairing  its  track  to  remain  in 
the  street  alongside  its  track  for  five  or 
six  hours,  in  the  daytime.  Zanger  v.  De- 
troit City  R.  Co.,  87  Mich.  646,  49  A^.  W. 
Rep.  879. 

182.  Biglit  to  tlirow  snow  from 
traclcto  street.— Plaintiff  was  driving  on 
a  narrow  street,  and  in  turning  out  to  let 
another  team  pass  was  forced  on  a  ridge  of 
snow  that  a  street-car  company  had  thrown 
from  its  track,  and  his  sleigh  overturned,  in- 
juring him.  Held,  that  the  act  of  the  com- 
pany in  thus  throwing  snow  on  the  street 
was  extreme  carelessness,  justifying  a  ver- 
dict for  plaintiff.  Somerville  v.  City  R.  Co.. 
43  A^.  Y.  S.  R.  42s.  63  Hun  628,  17  N.  Y. 
Supp.  719. 

183.  Liability  where  manner  of 
laying  traclc  has  been  directed  or 
approved  by  city.— Where  the  common 
council  of  a  city  specifies  by  ordinance  the 
general  character  and  extent  of  work  to  be 
done  by  railroad  companies  where  streets 
are  crossed,  in  order  that  the  tracks  may  be 
crossed  with  more  safety  and  convenience 
to  the  public,  and  provides  that  the  work 
shall  be  done  to  the  satisfaction  of  a  speci- 
fied agent  of  the  city,  but  no  detailed  speci- 


fications are  furnished,  the  fact  that  it  is 
done  to  the  satisfaction  of  such  agent  will 
not  relieve  the  company  of  liability  to  one 
who  IS  injured  by  reason  of  the  work  having 
been  done  in  an  unskilful  and  improper 
manner.  Delzell  v.  Indianapolis  &•  C.  R. 
Co.,  32  fnd.  45.— Distinguishing  Young  v. 
Yarmouth,  9  Gray  (Mass.)  386. 

Under  Mass.  St.  1871,  ch.  381.  §  31, 
providing  that  street-railway  corporations 
"  shall  be  liable  for  any  loss  or  injury  that 
any  person  may  sustain  by  reason  of  any 
carelessness,  neglect,  or  misconduct  of  its 
agents  and  servants  in  the  construction, 
management,  and  use  of  its  tracks,"  a  hus- 
band may  maintain  suit  against  such  a  cor- 
poration for  loss  of  services  and  society  of, 
and  expense  of  curing,  his  wife,  who  is  in- 
jured  by  a  defective  construction  of  its 
tracks,  even  though  they  are  constructed  to 
the  satisfaction  of  the  superintendent  of 
streets.  Osgood  v.  Lynn  &*  B.  R.  Co.,  3 
Am.  &*  Eng.  R.  Cas.  395,  130  Mass.  492. 

If  a  track  upon  a  public  street  becomes 
unsafe  by  negligent  construction  or  other- 
wise. It  is  no  defense  that  by  contract  with 
the  city  and  the  railway  there  should  be  no 
liability,  nor  that  the  track  had  been  laid 
as  directed  by  the  city  authorities.  The 
city  cannot  contract  so  as  to  justify  negli- 
gence, to  the  injury  or  impairment  of  the 
safety  of  the  public  If  the  city  joins  in  the 
unlawful  act  it  also  will  be  liable.  Houston 
City  St.  R.  Co.  V.  Delesdernier,  84  Tex.  83, 
195.  W.  Rep.  366. 

Authority  given  to  a  city  council  to  su- 
pervise  and  direct  the  repairs  of  a  railroad 
are  merely  directory,  and  not  of  such  a 
character  as  to  affect  the  right  of  action  of 
injured  individuals  against  the  company. 
Conlon  V.  City  R.  Co.,  8  Nov.  Sc.  209.— Af  ■ 
PLYING  Evens  v,  Halifax,  5  Nov.  Sc.  in  ; 
Lackland  v.  North  Mo.  R.  Co.,  31  Mo.  180, 
Tate  V.  Ohio  &  M.  R.  Co.,  7  Ind.  479.  Dis- 
tinguishing Currier  v.  Lowell,  16  Pick. 
(Mass.)  174.  Quoting  Parker  v.  Great 
Western  R.  Co..  7  M.  &  G.  253. 

Tlie  provisions  of  the  act  respecting  the 
Halifax  Street  Ry.  requiring  the  company  to 
keep  the  roadway  level  with  the  rails,  be- 
tween them,  and  two  feet  outside,  under  the 
supervision  of  the  city  engineer,  ate  not 
complied  with  merely  by  virtue  of  the  en- 
gineer approving  of  what  has  been  done  if 
the  roadway  is  not  actually  level  as  required. 
Joyce  v.  Halifax  St.  R.  Co.,  24  Nov.  Sc.  113; 
affirminf^  21  Nov.  Sc.  531. 


i<; 


STREET   RAILWAYS,  184-100. 


415 


184.  Company  not  liable  for  neg- 
ligence of  third  person.— It  is  the  right 
of  a  company,  bound  by  its  charter  to  keep 
in  repair  the  streets  occupied  by  it,  to  show 
that  a  defect  in  a  street,  causing  an  injury, 
was  the  result  of  the  negligence  of  persons 
other  than  themselves;  and  to  require  the 
court  to  charge  distinctly  that  if  the  jury 
so  find  the  facts  the  verdict  should  be  for 
the  defendant.  Citizens'  Pass,  R.  Co.  v. 
Kitcham,  122  Pa.  St.  228.  15  Atl.  Rep.  733. 

To  a  point  that  "  If  the  jury  believe  that 
the  injury  was  occasioned  by  the  negligence 
of  the  plumber  who  was  engaged  in  puttmg 
in  pipes  under  license  from  the  city,  there 
can  be  no  recovery  from  the  railway  com- 
pany." the  answer  was  "  I  affirm  that  point ; 
but  if,  after  his  negligence  ceased  to  operate, 
the  railway  company  are  negligent,  they 
may  be  answerable."  Held,  that  the  point 
should  have  been  affirmed  without  the  qual- 
ification. Citizens'  Pass.  R.  Co.  v.  Ketchatn, 
122  Pa.  St.  228.  15  Atl.  Rep.  733. 

185. but  not  relieved  by  joint 

negligence  of  city.— Where  a  company 
lays  a  rail  improperly,  which  causes  an  ac- 
cident, the  fact  that  the  city  was  also  negli- 
gent in  the  manner  of  paving  the  street, 
which  negligence  may  have  contributed  to 
the  injury,  will  not  relieve  the  company 
from  liability.  Carpenter  v.  Central  Park, 
N.  &•  E.  R.  R.  Co.,  1 1  Abb.  Pr.  N.  S.  (N.  Y.) 
416,  4  Daly  550,  mem. 

In  all  such  cases,  if  its  negligence  co- 
operated in  producing  the  injury,  it  is  suffi- 
cient to  hold  the  defendant.  Lockhart  v. 
Lichtenthaler,  46  Pa.  St.  151.  Colegrove  v. 
New  York  &*  N.  H.  R.  Co.,  20  A'.  Y.  492. 

186.  Proof  of  notice  of  defects.— 
A  street-car  company  is  not  entitled  to 
notice  of  a  defect  in  its  track,  in  order  to 
hold  it  liable  for  a  resulting  injury,  where 
the  defect  is  patent.  If  it  appears  that  such 
a  defect  existed,  and  an  injury  was  caused 
thereby,  the  presumption  of  negligence  is 
complete.  If  the  defect  Is  of  such  short 
duration  as  to  destroy  the  presumption  of 
knowledge  on  t'le  part  of  the  company,  that 
is  matter  of  defense.  Worster  v.  Forty- 
second  St.  &*  G.  S.  F.  R.  Co.,  50  A^.  Y.  203,  3 
Am.  Ry.  Rep.  537 ;  affirming  3  Daly  278.— 
Reviewed  in  Bell  v.  New  York  C.  &  H.  R. 
R.  Co.,  29  Hun  (N.  Y.)  560. 

187.  Contributory  negligence.— 
One  who  knows  that  a  street-railway  track 
is  being  repaired,  and  sees  an  obstruction  in 
the  street  by  reason  of  such  repairs,  and 


drives  over  the  same  on  a  trot,  without  any 
consideration  that  a  high,  loose  box  upon 
which  he  is  sitting  may  be  tliereby  thrown 
out  of  the  wagon,  is  guilty  of  such  contrib- 
utory negligence  as  will  bar  a  recovery  for 
injuries  thereby  sustained.  Zanger  v.  De- 
troit City  R.  Co.,  87  Mich.  646,  49  N.  JV. 
Rep.  879. 

Plaintiff  knew  that  there  was  a  switch  in 
the  locality,  but  it  did  not  appear  that  he 
had  in  mind  its  precise  location;  he  was 
not  thinking  particularly  of  the  switch  at 
the  moment  of  the  accident ;  but,  thinking 
the  place  was  one  dangerous  to  cross  with- 
out care,  was  going  slowly  and  using  great 
caution.  Held,  that  he  was  not,  as  matter 
of  law,  chargeable  with  contributory  negli- 
gence; but  that  the  question  was  one  for 
the  jury  Wooley  v.  Grand  St.  &»  N.  R. 
Co.,  3  Am.  <S-  Eng.  R.  Cas.  398,  83  A^.  F.  121. 

188.  Liability  of  municipality.— A 
city  is  liable  for  injuries  caused  to  private 
property  by  a  diversion  of  surface  water 
thereon  by  the  construction  of  a  street  rail- 
way which  it  has  authorized  to  be  built. 
Damour  v.  Lyons  City,  44  Iowa  276. 

A  company  was  incorporated  by  an  act 
under  which  the  city  had  power  to  refuse  to 
permit  rails  to  be  laid,  or  to  consent  on  such 
terms  as  it  thought  fit.  The  company  dis- 
continued operations,  leaving  rails  in  many 
places  protruding  above  ths  level  of  the 
streets,  and  above  a  year  after  it  had  ceased 
to  operate  its  road  plaintiff's  carriage  and 
horses  were  injured.  Defendant  city  pleaded 
that  the  rails  were  in  the  exclusive  posses- 
sion of  the  company,  that  the  accident  was 
caused  by  the  passage  of  a  heavy  cannon 
disturbing  the  rails  shortly  previous,  and 
that  it  had  no  notice  of  the  defect.  The 
verdict  was  for  plaintiff.  Held,  that  under 
the  justification  pleaded  it  was  necessary 
for  defendant  to  disclose  the  permission 
given  to  the  company  to  lay  rails,  and  that 
the  question  as  to  the  immediate  cause  of 
the  accident  and  the  want  of  notice  had 
been  disposed  of  by  the  verdict.  Adams  v. 
Halifax,  13  Nm.  Sc.  344. 

180.  Joint  liability  of  municipal- 
ity and  company.— A  city  and  street-car 
companies  therein  may  both  become  liable 
for  a  neglect  to  repair  streets  on  which  the 
tracks  are  laid.  Philadelphia  v.  Welter,  4 
Brews.  {Pa.)  24. 

100.  Enforcing  duty  by  complaint 
by  attorney-general— Necessary  par- 
ties.—An  act  authorizing  the  construction 


r 


416 


STREET   RAILWAYS,  191. 


WW 


JiiJ 


of  a  street  railway,  and  confirming  a  cove- 
nant entered  into  for  the  purpose  with  the 
municipal  corporation,  provided  thai  tiie 
rails  should  be  laid  flush  with  the  streets. 
Held:  (t)  tliat  the  rails  must  not  only  be 
flush  when  laid,  but  must  be  kept  so ;  (2) 
that  to  enforce  the  contract  against  the 
company,  a  suit  by  the  municipal  corpora- 
tion, the  other  party  to  the  contract,  v.as 
necessary;  (3)  that  an  informrlion  '■ 
attorney-general  to  enforce  the  sta  u'. 
strictions  was  proper ;  that  unless  the  >>,  '  ! 
concerned  chose,  by  proper  alterations  and 
repairs,  to  comply  with  the  requirenuiits  of 
the  statute,  the  attorney-general  was  c 
titled  to  a  decree  for  the  removal  of  tlie 
rails  as  a  nuisance;  but  that  the  municipal 
corporation  was  a  necessary  party  to  the 
information.  Attorney-General  v.  Toronto 
St.  R.  Co.,  14  Grant's  Ch.  {U.  C.)  673. 

In  such  case  the  rails  were  found  not  to 
conform  to  the  requirements  of  tlie  stat- 
ute autliorizing  the  rnilway,  and  the  court 
granted  a  decree  for  the  removal  of  the 
rails,  but  directed  that  the  decree  should 
not  go  into  effect  for  a  specified  period,  so 
as  to  afford  time  to  the  company,  by  proper 
alteiations  and  repairs,  to  comply  with  the 
statute.  Attorney-General  v.  Toronto  St.  K. 
Co.,  15  Grants  Ch.  (I/.  C.)  187. 

V.  BIOHTB  OF  ABUTTING  0WHEB8.* 

191.  A  street  railway  imposes  no 
new  burden  or  servitude  on  tlie 
laud. — A  horse  railway  on  the  streets  of  a 
city  is  not  an  additional  burden  upon  the 
soil  of  the  street  so  as  to  entitle  the  abut- 
ting land  owners  to  compensation.  Randall 
v.  Jacksonville  St.  K.  Co.,  17  Am.  &•  Eng.  R. 
Cas.  184,  19  Fla.  409.  Elliot  v.  Fair  Haven 
&*  W.  R.  Co.,  32  Conn.  579.— Distinguish- 
ing Imlay  v.  Union  Branch  R.  Co.,  26 
Conn.  249. — Floyd  County  v.  Rome  St.  R. 
Co.,  77  (7rt.  614,  3  i'.  E.  Rep.  3.  Briggs  v. 
Lewiston  &•  A.  Horse  R.  Co.,  32  Am.  &• 
Eng.  R.  Cas.  167,  79  Me.  363,  10  Atl  Rep.  47. 
—Followed  in  Williams  v.  City  Elec.  St. 
R.  Co.,  43  Am.  &  Eng.  R.  Cas.  215,  41  Fed. 
Rep.  556.— //>■«  V.  Baltimore  dr'  H.  Pass.  R. 
Co.,  4  Am.  &*  Eng.  R.  Cas.  201 ,  52  Md.  242, 

*  Operations  of  horse  railway  in  street ;  rights 
of  abutters,  see  notes,  5  Am.  &  Eng.  R.  Cas; 
284  ;  I  L.  R.  A.  493. 

Street  railways  as  additional  burden  on  land. 
Right  of  abutting  owners  to  compensation,  see 
j6  Am.  &  Eng.  R.  Cas.  s33i  abstr.;  46  Id.  90, 
abstr. 


36  Am  Rep.  371.— Applied  in  Eichels  v. 
Evansville  St.  R.  Co.,  5  Am.  &  Eng.  R.  Cas. 
274,  78  Ind.  261,  41  Am.  Rep.  561. — Hodges 
v.  Baltimore  Union  Pass.  R.  Co.,  10  Am.  &* 
Eng.  R.  Cas.  270,  58  Md.  603.  Attorney- 
General  V.  Metropolitan  R.  Co.,  125  Mass. 
515.  Detroit  City  R.  Co.  v.  Mills,  46  Am.  &* 
Eng.  R.  Cas.  608,  85  Mich.  634,  48  N.  W. 
Rep.  1007.  People  ex  rel.  v.  Ft.  Wayne  &^  E. 
R.  Co.,  92  Mich.  522,  52  A'.  W.  Rep.  1010.— 
FoLLOWEP  IN  Dean  v.  Ann  Arbor  St.  R. 
Co.,  93  Mi:h.  ^o.—Elfelt  v.  Stillwater  St.  R. 
Co...  53  Minn.  68.  55  A^.  W.  Rep.  116.  Van 
Home  V.  Newark  Pass.  R.  Co.,  50  Am.  &* 
Et  r  Cas.  235,  48  N.  J.  Eq.  332,  21  Atl. 
Rep.  a  \^4.  Prooklyn  C.  &*  J.  R.  Co.  v.  Brook- 
lyn Ci:y  R.  Co.,  33  Barb.  {N.  Y.)  420.— Dis- 
tinguishing Williams  v.  New  York  C.  R. 
Co.,  16  N.  Y.  97.— Approved  in  Hinchman 
V.  Paterson  Horse  R.  Co.,  17  N.  J.  Eq.  75. 
Followed  in  Brooklyn  City  &  N.  R.  Co. 
V.  Coney  Island  &  B.  R.  Co.,  35  Barb.  364. 
—Smith  V.  East  End  St.  R.  Co.,  38  Am.  6- 
Eng.  R.  Cas.  470,  87  Tenn.  626,  11  S.  tV. 
Rep.  709.— Distinguished  in  East  End  St. 
R.  Co.  V.  Doyle,  88  Tenn.  747,  9  L.  R.  A. 
100,  13  S.  W.  Rep.  9^6.— Texas  <S-  P.  R.  Co. 
V.  Rosedale  St.  R.  Co.,  22  Am.  &•  Eng.  R. 
Cas.  160,  64  Tex.  80.— DISAPPROVING  Craig 
V.  Rochester  City  &  B.  R.  Co.,  39  N.  Y.  404. 
—Belt  Line  St.  R.  Co.  v.  Crabtree.  2  Tex. 
App.  (Civ.  Cas.)  579. 

And  the  same  doctrine  is  held  applicable 
to  electric  railways.  Central  Pa.  Tel.  Co. 
V.  IVilkes-Barre  6-  W.  S.  R.  Co.,  1  Pa. 
Dist.  628. 

A  street  railway  properly  constructed  and 
lawfully  authorized  does  not  impose  such  a 
new  burden  as  to  entitle  an  adjacent  own- 
er of  property  to  compensation  therefor. 
Ransom  v.  Citizens'  R.  Co.,  104  Mo.  375,  16 
S.  W.  Rep.  416. 

Unless  he  can  show  that  he  will  suffer 
some  private  and  peculiar  injury  by  being 
deprived  of  free  access  to  his  premises, 
which  otherwise  he  would  enjoy.  Hobart 
V.  Milwaukee  City  R.  Co.,  27  Wis.  194, 2  Am. 
Ry.  Rep.  35.— Disapproving  Craig  v.  Roch- 
ester City  &  B.  R.  Co.,  39  N.  Y.  404. 
Following  People  v.  Kerr,  27  N.  Y.  204. 
—Quoted  and  approved  in  Campbell  v. 
Metropolitan  St.  R.  Co., 82  Ga.  320,  9  S.  E. 
Rep.  1078. 

The  use  is  the  criterion  by  which  a  street 
railway  is  judged.  Br^gs  v.  Lewiston  6*  A. 
Horse  R.  Co.,  32  Am.  &*  Eng.  R.  Cas.  167, 
79  Me.  363,  10  Atl.  Rep.  47. 


Mi 


STREET    RAILWAYS,  192,  193. 


417 


The  street  railway  is  included  among  the 
usual  modes  of  conveyance  along  the  streets 
of  the  city,  and  the  inconveniences  thereby 
occasioned  must  be  acquiesced  in  as  being 
in  the  interest  of  the  general  public.  Texas 
&*  P.  R.  Co.  V.  HosedaU  St.  R.  Co.,  22  Am. 
&>  Eng.  R.  Cas.  i6o.  64  Tex.  80. 

The  right  to  use  the  streets  of  a  city  for  a 
horse  railway  rests  on  the  ground  that  such 
a  use  is  neither  inconsistent  with,  nor  does 
it  in  any  manner  supersede,  the  ordinary 
uses  for  which  the  street  was  dedicated  as 
a  highway;  that  the  easement  thereby  ac- 
quired was  the  right  to  use  the  streets  not 
only  according  to  the  then  existing  modes 
of  travel  and  transportation,  but  all  such 
other  modes  as  might  arise  in  the  ordinary 
course  of  improvement;  and  that  a  horse 
railway  is  but  one  of  the  legitimate  con- 
tingencies within  the  object  and  purpose  for 
which  the  street  was  dedicated  to  the  public, 
and  which  it  is  therefore  to  be  presumed 
was  within  the  contemplation  of  the  parties 
at  the  time  damages  were  assessed  to  abut- 
ting owners.  Hoi^es  v.  Baltimore  Union 
Pass.  R.  Co.,  10  Am.  &*  Eng.  R.  Cas.  270, 
58  Md.  603. 

Md.  Act  of  1831,  ch.  252,  which  author- 
izes the  mayor  and  city  council  of  Balti- 
more, on  the  application  of  a  majority  of 
lot  owners  fronting  on  any  street,  to  pass 
such  ordinances  as  may  be  necessary  for 
the  construction  of  railway  tracks,  etc., 
has  no  application  or  reference  whatever  to 
horse  railways  for  passengers.  Hodges  v. 
Baltimore  Union  Pass.  R.  Co.,  10  Am.  &> 
Eng.  R.  Cas.  270,  58  A/d.  603. 

If  the  contemplated  use  of  a  street  by  a 
street-railway  company  is  authorized  by 
statute,  an  abutting  owner's  rights  therein 
are  subservient,  unless  such  use  imposes  an 
additional  servitude  upon  the  land  taken  by 
the  street  or  on  the  abutting  land ;  but 
when  a  public  use  authorized  by  law  takes 
no  property  of  the  individual,  merely  affect- 
ing him  by  proximity,  the  necessary  inter- 
ference in  his  business  or  in  the  enjoyment 
of  his  property  occasioned  by  such  use 
furnishes  no  basis  for  damages.  Paterson 
R.  Co.  V.  Grundy,  56  Am.  &•  Eng.  R.  Cas. 
486,  S\  N.J.  Eg.  213,  26  Atl.  Rep.  788. 

A  privilege  granted  to  a  corporation  of  a 
partial  use  of  a  street,  which  threatens  if  it 
does  not  encroach  upon  the  property  rights 
of  an  adjacent  owner,  should  be  so  exercised 
by  the  company  as  to  minimize  the  incon- 
venience and  danger  to  the  enjoyment  of 
7  D.  R.  D.  -27 


such  rights.  Paterson  R.  Co.  v.  Grundy,  56 
Am.  6-  Eng.  R.  Cas.  486,  Si  JV. /.  Eg.  213, 
26  Atl.  Rep.  788. 
102. not  wlieu  cable,  electric- 
ity, or  otlier  meclianical  power  in 
used.*— The  operation  of  a  street  railroad 
by  mechanical  power,  when  authorized  by 
law,  on  a  public  street,  is  not  an  additional 
servitude  or  burden  on  land  already  dedi- 
cated or  condemned  to  the  use  of  a  public 
street,  and  is  therefore  not  a  taking  of 
private  property,  but  is  a  modern  and  im- 
proved use  only  of  the  street  as  a  public 
highway,  and  affords  to  the  owner  of  the 
abutting  property,  though  he  may  own  the 
fee  of  the  street,  no  legal  ground  of  com- 
plaint. Williams  v.  City  Elec.  St.  R,  Co.,  ^3 
Am.  (S-  E/ig.  R.  Cas.  215,  41  Fed.  Rep.  536. 
— Following  Briggs  v.  Lewiston  &  A. 
Horse  R.  Co.,  79  Me.  363,  10  Atl,  Rep.  47 ; 
Newell  V.  Minneapolis,  L.  &  M.  R.  Co.,  35 
Minn.  112,27  N.  W.  Rep.  839;  People  «<. 
Kerr,  27  N.  Y.  204. 

Tiie  operation  of  a  street  railway  by  horse- 
car,  cable,  or  electricity,  when  authorized  by 
law,  on  a  public  street,  is  not  an  additional 
servitude  or  burden  on  the  land  which  will 
entitle  the  owner  of  property  abutting  on 
tiie  street  to  compensation  under  Pa.  Const, 
art.  16,  §  8.  Rafferty  v.  Central  Traction 
Co.,  50  Am.  Sf  Eng.  R.  Cas,  239,  147  Pa.  St. 
579,  23  Atl.  Rep.  884. 

103.  Authorities  lioldingthat  such 
road  is  an  additional  servitude.— 
The  establishing  and  running  a  liorse  rail- 
road in  the  public  streets  of  a  city  held  to 
be  the  imposition  of  an  additional  burden 
upon  the  land  of  an  adjoining  proprietor  cov- 
ered by  such  street ;  and  that  such  proprietor 
could  maintain  a  suit  to  enjoin  perpetually 
the  railroad  company  from  laying  down 
such  track  in  the  street,  and  from  run- 
ning their  cars  over  the  same.  (Woodruff, 
Mason,  and  Dwight.JJ.,  dissenting.)  Craig 
v.  Rochester  City  &•  B.  R.  Co.,  39  N.  Y.  404; 
affirmitig  39  Barb.  494.— Reviewing  Pres- 
byterian Soc.  V.  Auburn  &  R.  R.  Co.,  3  Hill 
567  ;  Fletcher  z.  Auburn  &  S.  R.  Co.,  25 
Wend.  462 ;  Williams  v.  New  York  C.  R. 
Co.,  16  N.  Y.  97;  Davis  v.  Mayor,  etc.,  of 
N.  Y.,  14  N.  Y.  506.— Approved  in  Thayer 
V.  Rochester  City  &  B.  R.  Co.,  15  Abb.  N. 
Cas.  (N.  Y.)  52.  Criticised  in  Eichelsw. 
Evansville  St.  R.  Co.,  5  Am.  &  Eng.  R.  Cas. 

*  As  to  whether  a  steam  or  street  railway  is  a 
new  servitude  on  street,  so  as  to  entitle  abutting 
owners  to  damages,  see  note,  38  Am.  Rep.  367. 


-Ji 


it 


418 


STREET   RAILWAYS,  104,  105. 


\m 


\ 


I 


.i,:.a 


274,  78  Ind.  261.  41  Am.  Rep.  561.  Dis- 
approved IN  Texas  &  P.  R.  Co.  v.  Rose- 
dale  St.  R.  Co.,  22  Am.  &  Eng.  R.  Cas.  160,64 
Tex.  80;  Hobart  v.  Milwaukee  City  R.  Co., 
27  Wis.  194.  Distinguished  in  Kellinger 
V.  Forty-second  St.  &  G.  S.  F.  R.  Co..  50  N. 
V.  206 ;  Fobes  v.  Rome,  W.  &  O.  R.  Co.. 
43  Am.  &  Eng.  R.  Cas.  137,  121  N.  Y.  5^,, 
24  N.  E.  Rep.  919,  31  N.  Y.  S.  R.  828. 
Followed  in  Harrington  v.  St.  Pai-1  &  S. 
C.  R.  Co.,  17  Minn.  215  (Gil.  188).  Re- 
viewed in  Bloomfield  &  R.  N.  Gas-light  Co. 
V.  Calkins,  62  N.Y.  386 ;  SpoiTord  v.  Southern 
Boulevard  R.  Co.,  15  Daly  162,  4  N.  Y. 
Supp.  388,  22  N.  Y.  S.  R.  246. 

The  rule  that  a  street  surface  railroad  is 
an  additional  burden  upon  the  street,  which 
wHl  entitle  abutting  owners  to  damages 
where  they  own  the  fee  of  the  street,  is  not 
affected  by  N.  Y.  Const,  of  1874,  art.  3,  §  18, 
that  no  law  shall  be  passed  authorizing  the 
construction  of  such  railroads  without  the 
consent  of  a  majority  of  the  adjoining 
owners,  or  if  such  consent  cannot  be  ob- 
tained, then  by  the  direction  of  the  supreme 
court.  McCruden  v.  Rochester  R.  Co.,  25  A'^. 
Y.  Supp.  114,  5  Misc.  ig;  affirmed  in  77 
Hun  609.— Following  Craig  v.  Rochester 
City  &  B.  R.  Co.,  39  N.  Y.  404. 

104.  Street  railways  distiut^iiislied 
ttova.  ordinary  railroads.  —  While  it 
may  be  said  that  bridges,  culverts,  and  even 
street  railways  are  matters  contemplated  by 
the  lot  owner  when  he  purchases,  no  such 
presumption  applies  to  the  use  of  the  street 
by  an  ordinary  railroad.  Denver  v.  Bayer, 
7  Colo.  113,  2  Pac.  Rep.  6. 

The  difference  between  railroads  for  gen- 
eral traffic  and  street  railroads  consists 
in  their  use,  and  not  in  their  motive  power. 
A  railroad  the  rails  of  which  are  laid  to 
conform  to  the  grade  and  surface  of  the 
Street,  and  which  is  otherwise  constructed 
so  that  the  public  is  not  excluded  from  the 
use  of  any  part  of  the  street  as  a  public 
way ;  which  runs  at  a  moderate  rate  of  speed, 
compared  to  the  speed  of  traffic  railroads ; 
which  carries  no  freight,  but  only  pas- 
sengers, from  one  part  of  a  thickly  popu- 
lated district  to  another  in  a  town  ot  city 
and  its  suburbs,  and  for  that  purpose  runs 
its  cars  at  short  intervals,  stopping  at  the 
street  crossings  to  receive  and  discharge  its 
passengers — is  a  street  railroad,  whether  tlie 
cars  are  propelled  by  animal  of  mechanical 
power.  Williams  v.  City  Elec.  St.  R.  Co., 
43  Am.  &»  Eng.  R,  Cas.  215,  41  Fed.  Refi. 


556.— Followed  in  Koch  v.  North  Ave.  R. 
Co.,  75  Md.  222. 

It  is  competent  for  the  legislature  to  au- 
thorize the  construction  of  a  street  railway, 
operated  by  horse  power,  as  distinguished 
from  one  operated  by  steam,  in  the  public 
streets,  without  providing  any  compensation 
to  abutting  property  holders  along  the 
street  through  which  such  road  may  be  con- 
structed. This  is  upon  the  theory  that  such 
roads  arc  not  additional  burdens  upon  the 
suil  of  the  street,  but  are  legitimate  uses  of 
the  highway,  in  furtherance  of  the  purposes 
for  which  they  were  originally  dedicated. 
State  ex  rel.  v.  Jacksonville  St.  R.  Co.,  50 
Am.  «&*  Eng.  R.  Cas.  179,  29  Fla.  590,  10 
So.  Rep.  590. 

Iowa  Code,  §  464,  makes  a  distinction  be- 
tween railways  proper  and  street  railways, 
the  former  being  such  as  are  operated  by 
steam,  and  the  latter  those  operated  by 
horses ;  and  under  that  section  it  is  only 
when  a  railway  operated  by  steam  is  built 
along  a  street  that  an  abutting  lot  owner  is 
entitled  to  damages.  Such  right  does  not 
arise  upon  the  construction  of  a  road  op- 
erated by  horses.  Sears  v.  Marshalltown  St. 
R.  Co.,  20  Am.  Sf  Eng.  R.  Cas.  36,  65  Iowa 
742,  23  N.  W.  Rep.  1 50. 

In  the  use  of  a  public  street,  in  respect  to 
the  rights  of  adjacent  owners,  a  difference 
is  recognized  between  an  ordinary  horse 
railway  and  a  steam  railroad.  Theobald  y. 
Louisville,  N.  O.  &'  T.  R.  Co.,  38  Am.  &> 
Eng.  R.  Cas.  462,  66  Miss.  279,  4  L.  R.  A. 
735,  6  So.  Rep.  230. 

195.  Wlicu  uot  a  "  taking  of  private 
property  for  public  use."  — Building 
and  operating  a  horse  railroad  in  the  streets 
of  a  city,  by  authority  of  the  legislature  and 
the  city,  is  not  a  taking  of  private  property 
for  public  use  within  the  provision  of  the 
Constitution  of  New  Jersey.  Hinchman  v. 
Paterson  Horse  R.  Co.,  17  N.  J.  Eq.  75.— 
Disapproving  Wager  v.  Troy  Union  R. 
Co.,  25  N.  Y.  533;  Craig  V.  Rochester  City 
&  B.  R.  Co.,  39  Barb.  (N.  Y.)  494.— Fol- 
lowed in  Jersey  City  &  B.  R.  Co.  v.  Jersey 
City  &  H.  Horse  R.  Co..  20  N.  J.  Eq.  61 ; 
West  Jersey  R.  Co.  v.  Cape  May  &  S.  L.  R. 
Co..  34  N.  J.  Eq.  16^.— Jersey  City  <S-  B.  R.  Co. 
V.  Jersey  City  6f  H.  Horse  R.  Co. ,  20  A'.  J. 
Eq.  61  ;  reversed  on  other  grounds  in  21  N.J. 
Eq.  550.— Criticising  Craig  v.  Rochester 
City  R.  Co.,  39  Barb.  494.  Following 
Hinchman  v.  Paterson  Horse  R.  Co.,  17  N. 
J.  Eq.  75.—  West  Jersey  R.  Co.  v.  Cape  May 


STREET   RAILWAYS,  100-109. 


419 


6-  S.  L.  Jt.  Co.,  34  iV.  /.  Ef.  164.— Fol- 
lowing Hinchman  v.  Paterson  Horse  R. 
Co.,  17  N.  J.  Eq.  76. 

Though  an  abutting  owner  has  title  to 
the  land  in  the  street,  the  use  of  the  street 
by  a  street  railway  will  not  be  a  use  of  his 
property  for  any  purposes  other  than  to 
pursue  privileges  previously  acquired  by  the 
public,  and  he  is  not  entitled  to  any  com- 
pensation,.nor  of  course  to  any  injunction, 
for  the  reason  that  no  compensation  has 
been  awarded  to  him.  Wetmore  v.  Story, 
3  Abb.  Pr.  (A^.  Y.)  262. 

100.  Taking  or  damaging  private 
property  for  public  use.*— Under  the 
provision  of  the  Georgia  Constitution  that 
private  property  "shall  not  be  taken  or 
damaged  for  public  purposes  without  just 
compensation,"  an  abutting  owner  may  re- 
cover dama|;es  caused  by  the  operation  of  a 
street-car,  though  no  part  of  his  property 
be  taken.  Campbell  v.  Metropolitan  St.  R. 
Co.,  82  Ga.  320.  9  5.  E.  Kep.  1078. 

Under  the  provision  of  the  Illinois  Con- 
stitution that  "  private  property  shall  not  be 
taken  or  damaged  for  public  use  without 
just  compensation,"  only  damages  for  an 
actual  taking  need  be  paid  in  advance. 
Other  special  damages  may  be  recovered  in 
a  suit  at  law.  Lorit  v.  North  Chicago  City 
K.  Co.,  32  Fed.  Rep.  270. 

In  Ohio  and  Wisconsin  it  is  held,  m  the 
absence  of  a  constitutional  provision  relat- 
ing to  damages  for  merely  injuring  property, 
that  an  abutting  owner  is  entitled  to  dam- 
ages, if  a  street-car  line  materially  impairs 
his  free  access  to  the  street.  Cincinnati  S- 
S.  G.  A.  St.  R.  Co.  V.  CumminsvilU,  14  Ohio 
St.  523.  Hobart  v.  Milwaukee  City  R.  Co., 
27  Wis.  200. 

197.  What-  is  private  property.— 
The  footway  of  a  public  street  or  highway 
is  not  private  property  any  more  than  the 
portion  of  a  street  appropriated  as  a  cart- 
way. Clark  V.  Second  &*  T.  St.  Pass.  R. 
Co.,  3  Phita.  (Pa.)  259. 

108.  Extent  to  which  street  may 
be  used  by  tracks.— The  legislature  of 
a  state  has  not  such  plenary  power  over  all 
public  ways  and  streets  that  it  may,  in  the 
absence  of  constitutional  restrictions,  au- 
thorize municipalities  to  devote  the  entire 
width  of  %  street  to  railway  use,  regardless 
of  the  property  rights  of  abutting  owners 
and    without   compensation  for  injury  to 

•See  also  post,  208,  209. 


their  property.  Dooly  Block  v.  Salt  Lak* 
Rapid  Transit  Co.,  56  Am.  <S-  Et^.  R.  Cas. 
513,  9  l/tah  31,  33  Pac.  Rep.  229. 

The  statutes  of  Utah  authorizing  a  cer- 
tain city  "to  exclusively  control,  regulate, 
repair,  amend,  and  clear  the  streets,"  and  to 
"open,  widen,  straighten, or  vacate  streets," 
and  to  "  prevent  the  encumbering  of  the 
streets  in  any  manner,  and  protect  the 
same  from  any  encroachment  and  injury," 
and  also  conferring  upon  the  city  power 
"  to  direct  and  control  the  location  of  rail- 
road tracks  and  depot  grounds  within  the 
city,"  will  not  be  construed  as  authorizing 
the  city  council  to  grant  a  railway  fran- 
chise, if  the  construction  of  the  road  will 
injure  and  materially  depreciate  the  value  of 
the  property  of  the  abutters.  The  city  has 
no  power  "  to  direct  and  control "  the  loca- 
tion of  the  railway  tracks  in  cases  where 
the  streets  are  already  burdened  to  the  ex> 
tent  that  natural  justice  will  allow,  until  a 
right  of  way  has  been  condemned  by  the 
railway  company.  Dooly  Block  v.  Salt  Lake 
Rapid  Transit  Co.,  56  Am.  &*  Ettg.  R.  Cas. 
513,  9  Utah  31,  33  Pac.  Rep.  229. 

Where,  at  the  date  of  granting  to  a 
street-railway  company  a  franchise  to  occupy 
a  certain  street,  there  were  in  operation  upon 
that  street  two  railway  tracks,  with  a  line  of 
poles  between  them,  and  also  many  electric- 
light  and  telegraph  poles  on  each  side  of 
the  street,  the  abutting  owners  may  enjoin 
the  construction  of  a  third  track,  author- 
ized by  the  city  council,  where  it  appears 
that  the  tracks  already  upon  the  said  street 
aflord  ample  facilities  for  running  all  cars 
necessary  for  public  convenience,  and  the 
construction  of  a  third  track  would  be  a 
serious  impediment  to  the  ordinary  mode  of 
travel.  Dooly  Block  v.  Salt  Lake  Rapid 
Transit  Co.,  56  Am.  &•  Eng.  R.  Cas.  513,  9 
Utah  31,  33  Pac.  Rep.  229. 

100.  Enjoining  road,  generally.*— 
A  horse  railway  on  the  streets  of  a  city, 
which  is  authorized  by  the  legislature  and 
the  city,  is  not  a  nuisance,  if  it  be  laid  down 
according  to  the  most  improved  mode  of 
construction,  and  cannot  be  enjoined  as 
such.  Randall  v.  Jacksonville  St.  R.  Co.,  17 
Am.  &»  Eng-.  R.  Cas.  184,  19  Fla.  409. 

An  injunction  having  been  sought  to 
prevent   a   street-railroad    company    from 

*  Use  of  street  bv  company  in  violation  of 
a  contract  with  abutting  owners.  Right  of  such 
owners  to  enjoin,  see  46  Am.  &  Eno.  R.  Cas. 
Ill,  aistr. 


ii    ' 


420 


STREET   RAILWAYS,  dOO. 


;1 


■ 

,' 

'IQr  i^^   ' 

building  its  track  and  operating  in  a  street 
uf  a  city,  on  the  ground  that  this  would 
damage  the  plainlifl's  property,  and  it 
appearing  tliat  tiic  company  did  not  sccic  to 
take  any  of  plaintid's  property,  and  it  being 
duubtiul  whether  tiie  same  would  be  dam- 
aged or  not,  It  IS  not  an  abuse  of  discretion 
to  allow  defendant  to  dissolve  a  temporary 
injunction  against  it  by  filing  a  bond,  with 
good  security,  conditioned  to  pay  plaintiff 
all  damages  that  might  be  recovered  by  him 
or  assessed  by  reason  of  building  and  oper- 
ating the  road.  Fotichi  \.  l\ome  St.  R,  Co., 
84  Gil.  233,  10  S.  E.  Rep.  726. 

In  the  city  of  Chicago  the  fee  to  the 
streets  is  in  the  city ;  and  a  property  owner 
cannot  unjoin  a  road  in  ihc  streets  unless  he 
has  been  disturbed  in  the  enjoyment  of  his 
property,  for  which  he  docs  not  have  an 
adequate  renvjdy  at  law.  If  lie  hab  "itfTcrcd 
some  special  injury  njt  peculiar  to  the 
public  at  large,  his  remedy  is  by  an  action 
at  law  for  damages.  Lorie  v.  North  Chicago 
City  R.  Co.,  32  Fed.  Rep.  270. 

The  Iowa  general  statute  relating  to 
rights  of  way  speaks  of  "  any  railroad  cor- 
poration heretofore  organized,  or  that  may 
hereafter  be  organized,  under  the  laws  of 
this  state,"  and  there  is  nothing  on  its  face 
to  show  an  intention  to  limit  it  to  ordinary 
railroads.  Neid,  that  it  embraces  a  street 
railway  operated  by  horse  power.  So  a 
street  railroad  connecting  two  cities,  and 
authorized  by  ordinance,  exists  by  virtue  of 
the  general  statute,  and  cannot  be  enjoined 
as  a  nuisance  on  a  repeal  of  the  ordinance. 
Clinton  v.  Clinton  &*  L.  Horse  R.  Co.,  37 
Iowa  61. 

A  street  railroad  in  the  city  of  New 
Orleans  which  has  been  authorized  by  the 
city  to  change  its  track  cannot  be  enjoined 
from  doing  so  by  an  individual  property 
owner,  on  the  ground  that  such  change  will 
likely  prove  detrimental  to  the  public  health, 
and  will  therefore  work  an  irreparable  in- 
jury to  him.  Hoyle  v.  New  Orleans  City  R. 
Co.,  23  La.  Ann.  535. 

The  acts  of  a  corporation  can  be  assailed 
for  abuse  or  excess  of  its  corporate  powers 
only  in  a  direct  proceeding  by  the  state. 
Hence,  where  a  company  chartered  to  build 
a  horse  railroad  between  certain  points  in 
a  city  accepts  from  the  common  council  a 
right  of  way  over  streets  not  lying  between 
those  points,  and  its  successor  in  title  is 
proceeding  to  construct  a  road  over  those 
streets,  conceding  that  this  is  an  abuse  or 


excess  of  the  powers  of  the  corporation,  a 
private  citizen  whose  interests  are  afTccted 
cannot  claim  an  injunction  on  that  ground. 
Hovelman  v.  Kansas  City  Horse  R.  Co.,  20 
Am.  6-  £ng.  R.  Cas  17,  79  Afo.  632. 

Owners  of  property  on  n  public  highway 
have  a  right  to  the  interposition  of  a  court 
of  equity  to  prevent  apprehended  injury 
from  a  public  nuisance  such  as  the  erection 
of  a  passenger  railway  in  the  street,  in  front 
of  their  property,  contrary  to  law.  Faust  v. 
Passenger  R.  Co.,  i  Fhila.  (Pa)  164.— Fol- 
lowed IN  Hestonville,  M.  &  F.  R.  Co.  v. 
Schuylkill  River  Pass.  R.  Co..  6  Phila.  (Pa.) 
141.  Quoted  in  Philadelphia  v.  Thirteenth 
&  F.  St.  Pass.  R.  Co.,  8  Phila.  (Pa.)  648. 

But  the  legislature  has  a  paramount  right 
to  control  the  use  of  highways,  and  when  a 
company  is  duly  chartered,  with  power  to 
lay  rails  in  the  streets  of  a  city,  it  cannot  be 
deemed  a  nuisance.  Faust  v.  Passenger  R, 
Co.,  3  Phila.  (Pa.)  164,— Following  Case  of 
Philadelphia  &  T.  R.  Co.,  6  Whart.  (Pa.)  25. 

200.  Coiiiplaiiiaut  must  show 
Hpecial  damage.*  —  Mere  consequential 
disadvantages  of  a  street  railroad  to  a  par- 
ticular locality,  by  reason  of  the  deprecia- 
tion in  value  of  adjoining  property,  cannot 
be  the  subject  of  a  private  action.  Carson 
v.  Central  R.  Co.,  35  Cal.  325. 

The  construction  and  operation  of  a  horse 
railway  in  the  public  streets  of  a  city  do  not 
entitle  a  private  individual  to  compensation 
unless  his  property  is  specially  damaged. 
He  is  entitled  to  recover  the  damages  which 
his  property  has  actually  sustained.  Camp- 
dell  V.  Metropolitan  St.  R.  Co.,  82  Ga.  320, 
9  S.  E.  Rep.  1078.— Quoting  and  approv- 
ing Cincinnati  &  S.  G.  A.  St.  R.  Co.  v. 
Cumminsville,  14  Ohio  St.  523 ;  Hobart  v. 
Milwaukee  City  R.  Co.,  27  Wis.  200. 

Upon  a  bill  for  injunction,  an  allegation 
that  the  location  of  a  street  railroad  will 
inconvenience  the  complainant's  business 
and  diminish  the  value  of  his  property  is 
material  and  significant  only  where  the 
road  is  constructed  without  authority,  and 
the  evil  complained  of  is  a  public  nuisance, 
as  showing  that  the  complainant  has  sus- 
tained special  injury.  Hogencamp  v.  Pater- 
son  Horse  R.  Co.,  17  N.J.  Eq.  83. 

But  where  the  laying  of  the  track  and 
the  use  of  the  road  are  authorized  by  the 
municipal  authorities,  its  location  rests  in 


*  Horse  railways   in   streets.     Compensation 
and  damages,  see  note,  36  Am.  &  Eng.  R.  Cas.  iS. 


STREET   RAILWAYS,  201-203. 


421 


n,  a 
:ted 

iikI. 
20 


the  discretion  of  the  corporation  or  of  those 
having  the  control  and  regulation  of  the 
streets.  It  cannot  aflect  the  question  of 
right.  Hogtncamp  v.  Paterson  Horse  A'.  Co., 
nN./.Eq.iz. 

When  a  street  railway  is  constructed  in  a 
public  highway  without  authority  of  law  it 
is  a  public  nuisance,  because  it  is  an  in- 
vasion of  the  public  casement.  Van  Home 
V.  Neivark  Pass.  K.  Co.,  50  Am.  &*  Eng.  K. 
Cas.  235,  48  N.  /.  Eq.  332,  21  Atl.  Rep.  1034. 

In  the  latter  case  there  is  no  invasion  of 
the  property  rights  of  the  owner  of  the  fee 
of  the  land  in  the  highway,  and  a  court  of 
equity  will  not  interfere  by  injunction,  at 
his  instance,  unless  he  suffers  some  special 
and  serious  injury  from  the  existence  of  the 
railway  there,  distinct  from  that  which  is 
suffered  by  the  public  at  large.  Van  Home 
V.  Newark  Pass.  R.  Co.,  50  Am.  &•  Eng.  R. 
Cas.  235,48  N.J.  Eq.  332,  21  Atl.  Rep.  1034. 
— Distinguishing  Broome  v.  New  York 
A  N.  J.  Telep.  Co.,  42  N.  J.  Eq.  143- 

The  construction  of  a  railroad  track  laid 
on  wooden  ties  imbedded  in  the  soil,  the 
rails  being  raised  from  six  to  eight  inches 
above  the  general  level  of  the  street,  does 
not  cause  a  special  and  peculiar  injury  to 
the  owners  of  property  abutting  upon  the 
street,  which  is  irreparable  in  its  nature  and 
different  in  kind  from  that  sustained  by  the 
general  public,  and  such  owners  cannot 
enjoin  the  same  as  a  nuisance  when  the 
street  is  eighty  feet  wide,  the  track  is  in  the 
centre  thereof,  and  ample  room  for  foot 
passengers  and  vehicles  to  pass  each  other 
is  left  on  both  sides  of  the  track.  Fogg  v. 
Nevada  C.  O.  R.  Co.,  43  Am.  «S-  Eng.  R. 
Cas.  105,  20  Nev.  429,  23  Pac.  Rep.  840. — 
Reviewing  Atchison  St.  R.  Co.  v.  Nave, 
38  Kan.  752;  Ncitzey  7^.  Baltimore  &  P.  R. 
Co.,  5  Mackey  (D.  C.)  34. 

Although  the  unauthorized  occupation  of 
a  public  street  by  a  railway  track  may  be 
regarded  as  a  nuisance,  per  se,  which  will  be 
enjoined,  an  injunction  against  it  will  not 
be  granted  at  the  suit  of  a  private  citizen 
or  a  corporation,  unless  the  plaintiff  can 
make  out  a  case  of  special  damage.  Lari- 
mer &*  L.  St.  R.  Co.  V.  Larimer  St.  R.  Co., 
137  Pa.  St.  533,  20  At/.  Rep.  570.— Fol- 
lowed in  Watkin  v.  West  Phila.  P;iss.  R. 
Co.,  I  Pa.  Dist.  ^6^.— Shipley  V.  Continental 
R.  Co.,  13  Phila.  {Pa.)  128.— Reviewfd  in 
Gyger  v.  Philadelphia  City  Pass.  R.  Co.,  17 
Phila.  86.—  Watkin  v.  West  Phila.  Pass.  R. 
Co.,  I  Pa.  Dist.  463. 


201.  For    lienplug    up  huow   ou 

Htrect.*— An  abutting  owner  and  resident 
may  enjoin  a  street-railroad  company  from 
throwing  snow  from  its  track  and  leaving  it 
on  the  street  beyond  a  reasonable  time,  so 
as  to  cut  off  the  use  of  the  street  or  access 
to  plaintiff's  property.  Prime  v.  Twenty- 
/,'  d  St.  R.  Co.,  I  Abb.  N.  Cas.  {N.  Y.)  63. 
—  Reviewing  In  re  Boston  &  A.  R.  Co.,  53 
N.  Y.  574. 

In  exercising  its  franchise  to  operate  its 
road  the  company  has  the  right  to  remove 
snow  from  its  track,  but  it  has  no  right  to 
encroach  unnecessarily  upon  the  portion  of 
the  street  not  covered  by  its  track;  and 
while  it  may  have  the  right  of  selection  as 
to  where  it  will  throw  the  snow,  this  right 
must  be  exercised  so  as  not  to  infringe 
upon  public  or  private  rights.  Prime  v. 
Twenty-third  St.  R.  Co.,  i  Abb.  N.  Cas.  (N. 

y.)  63. 

And  the  fact  that  there  was  no  other 
place  to  which  the  snow  could  be  carried 
without  ruinous  expense  to  the  company 
will  not  justify  the  latter  in  leaving  it  upon 
the  street  an  unnecessary  length  of  time; 
neither  will  the  fact  that  the  snowfall  is  so 
great  that,  even  if  the  company  threw  none 
from  its  track,  access  to  the  sidewalk  would 
be  cut  off,  justify  such  interference  with  the 
street.  Prime  v.  Twenty  third  St.  R.  Co.,  i 
Abb.  N.  Cas.  (N.  V.)  63. 

And  in  such  case  the  company  will  not 
be  justified  in  persistently  throwing  snow 
from  its  track  and  heaping  it  up  on  the 
street,  because  plaintiff  contribute  ■  'o  the 
obstruction  by  throwing  the  snow  from  the 
sidewalk,  some  of  which  at  times  was  thrown 
on  defendant's  track.  Prime  v.  Twenty- 
third  St.  R.  Co.,  I  Abb.  N.  Cas.  {N.  Y.)  63. 

202.  Owner  of  uniiiiprovetl  lot 
cannot  enjoin.— The  location  of  a  rail- 
road through  a  public  street,  in  a  line  not 
warranted  by  law,  will  not  be  enjoined  at 
the  instance  of  the  owner  of  an  unimproved 
building  lot,  suffering  no  present  detriment. 
Zabriskie  v.  Jersey  City  &*  B.  R.  Co.,  1 3  A'. 
J.  Eq.  314. 

203.  Hoad  for  private  use  may  be 
enjoined. — Where  a  person  or  corporation 
attempts  to  construct  a  purely  private  rail- 
road upon  the  public  streets  of  a  city,  any 
abutting  lot  owner  whose  property  is  or 
may  be  injured  may  enjoin  such  use  of  the 
strcetj.     Mikeseil  v.  Diirkee,  34  Kan.  509,  9 


'See  also/oj/,  273. 


422 


STREET   RAILWAYS,  204-207. 


til  "ill 


i«'. 


Pae.  Rep.  278 ;  further  appeal  36  Kan.  (fj, 
13  Pac.  Rep.  351.— Quoting  Smith  v. 
Leuvenwoitli,  15  Kuii.  81. 

204.  Eiijoiiiiiiy;   iiHe    of  Htcmii.  — 

Where  a  company  which  operates  a  horse 
railroad  is  authorized  10  use  steam  as  a  mo- 
tive power  on  a  portion  of  its  line,  it  is  liable 
for  a  nuisance  if  it  uses  a  part  of  its  track 
upon  which  it  is  not  authorized  to  use  steam 
for  the  purpose  of  switching  cars,  interfer- 
ing with  the  use  and  occupation  of  the 
premises  abutting  upon  such  street,  shak- 
ing the  buildings,  and  discharging  cinders, 
smoke,  and  dust  upon  the  premises.  Husi- 
ner  v.  Brooklyn  City  R.  Co.,  43  Am.  &*  Eng. 
R.  Cas,  219,  114  N.  V.  433,  21  N.  K.  Rep. 
1002,  23  N.  Y.  S,  R,  856 ;  ixffirmitt^:;  41  ///.-« 
643,  I  N.  V.  S.  R,  772,  >«<•«/.  — DlsriN- 
r.uiSHED  IN  Fobes  v.  Rome,  W.  &  O.  R. 
Co.,  43  Am.  &  Eng.  K.  Cas.  137,  121  N.  Y. 
505,  24  N.  E.  Rep.  919,  31  N.  Y.  S.  R.  828.] 
Whether  any  substantial  injury  resulted 
to  the  premises  and  their  use  from  such 
causes  is  a  question  of  fact  for  the  jury, 
when  the  evidence  is  conflicting  in  that 
respect.  Hussner  v.  Brooklyn  City  R.  Co., 
43  Am.  (5-  Eng.  R.  Cas.  219, 1 14  A^.  Y.  433,  21 
A'.  E.  Rep.  1002,  23  N.  Y.  S.  R.  856 ;  affirm- 
ing 41  Hun  643,  I  A'.  Y.  S.  R.  772,  mem. 

205.  For  want  of  consent  of  lot 
owners— Variance.— The  rule  that  the 
evidence  must  follow  and  conform  to  the 
allegations  of  tiie  pleadings,  and  tend  to 
establish  the  cause  of  action  or  defense  al- 
leged, has  never  been  abolished  in  New  York. 
So  where  an  abutting  property  owner  seeks 
to  enjoin  a  street  railroad  on  the  sole  ground 
that  the  company  has  not  obtained  the  con- 
sent of  the  owners  of  one  half  of  the  prop- 
erty bounded  on  the  street,  as  required  by 
the  statute,  but  offers  no  evidence  to  prove 
such  averment,  he  cannot  maintain  the 
action  by  offering  evidence  to  prove  that  he 
owned  the  fee  of  the  strct  where  the  track 
was  laid,  and  that  he  had  not  consented. 
Benedict  v.  Seventh  Ward  R.  Co.,  51  Hun 
(N.  Y.)  III.  —  Following  Vail  v.  Long 
Island  R.  Co.,  106  N.  Y.  283 ;  Southwick  v. 
First  Nat.  Bank,  84  N.  Y.420. 

Although  it  is  necessary  that  the  consent 
of  a  majority  of  the  property  holders  on  a 
street  be  obtained  to  laying  a  track,  yet  it 
will  not  be  presumed  that  the  city  council 
acted  without  such  consent,  if  its  proceed- 
ings purport  to  be  predicated  upon  it.  And 
where  an  application  for  an  injunction  has 
been  made  on  the  part  of  a  minority  of  the 


owners  of  property  on  a  ttreet,  and  a  re- 
straining order  allowed,  the  order  will  be 
vacated,  the  court  retaining  the  petition 
and  leaving  the  parties  to  apply  under  the 
law  for  appropriating  property  for  public 
use,  or  to  have  damages  assessed  by  a  jury, 
but  requiring  defendants  to  give  security 
for  any  damages  which  may  be  sustained  by 
laying  the  track.  Cincinnati  College  v. 
jVesmith,  2  Cin.  Super.  Ct.  24.— Reviewing 
Roberts  v.  EastOn,  19  Ohio  St.  79. 

200.  Injunction  not  defeated  by 
acquiescence  for  over  a  niontli.— 
Where  only  one  month  and  eight  days 
elapsed  between  the  time  at  which  a  fran- 
chise was  sold  and  the  institution  by  abut- 
ting owners  of  a  suit  for  injunction  to  re- 
strain the  alleged  owner  of  the  franchise 
from  entering  upon  the  street,  and  such  abut- 
ting owners  have  entered  a  public  protest 
against  the  granting  of  the  franchise  by  the 
city  council,  and  the  attempted  invasion  of 
the  street  took  place  after  the  commence- 
ment of  the  suit,  there  is  no  acquiescence 
on  the  part  6f  the  abutting  owners  which 
will  estop  iheni  from  maintaining  their  legal 
rights.  Hart  v.  Buckner,  56  Am.  &•  Eng.  R. 
Cas.  430,  54  Fed.  Rep.  925,  2  U.  S.  App.  488, 
iC.  C.  A.  I  ,  affirming  52  Fed.  Rep.  835. 

207.  Proper  parties.  —  Where  there 
is  an  unauthorized  obstruction  in  a  street, 
all  the  adjacent  owners  who  sustain  any 
special  injury  can  maintain  a  suit  for  injunc- 
tion against  the  party  making  the  obstruc- 
tion, and  the  alleged  trespasser  is  the  only 
necessary  party  defendant.  Hart  v.  Buck- 
ner, 56  Am.  &*  Eng.  R.  Cas.  430,  54  Fed. 
Rep.  925.  2  U.  S.  App.  488.  5  C.  C.  /I.  I ; 
affirming  52  Fed.  Rep.  835. 

Two  or  more  persons,  each  owning  dis- 
tinct though  adjoining  lots  cind  buildings  on 
the  street  of  a  city  where  it  is  proposed, 
without  authority  from  the  city,  to  build  a 
street  railroad  which,  when  built,  will  ob- 
struct the  use  of  the  properties  and  cause  a 
common  injury  to  such  proprietors,  inde- 
pendent and  different  from  what  the  general 
public  suffers,  may  unite  as  plaintiffs  and 
maintain  an  action  to  restrain  the  threat- 
ened obstruction  and  nuisance.  Atchison 
St.  R.  Co.  V.  Nave,  36  Am.  &»  Eng.  R.  Cas. 
29,  38  Kan.  744,  \T  Pac.  Rep.  587.— FOLLOW- 
ING Palmer  v.  Waddell,  22  Kan.  352.— Re- 
viewed IN  Fogg  V.  Nevada  C.  O.  R.  Co., 
43  Am.  &  Eng.  R.  Cas.  105,  20  Nev.  429. 

Both  the  cityand  owners  of  property  on  a 
street,  who  may  be  injured  by  the  unlawful 


STREET    RAILWAYS,  208,209. 


m 


re- 
be 
ion 
the 

blic 
ury, 
rity 
iby 

V. 
ING 

by 


laying  of  a  street-railway  track,  are  proper 
parties  to  a  bill  to  cnjoi'^  such  use  of  the 
street.  Philadelphia  v.  Thirteenth  (5-  F. 
Si.  Pass.  /?.  Co..  8  P'u/a.  (Pa.)  648.-Dis- 
TINOUISHINO  Peterson  v.  Navy  Yard,  R.  S. 
A  F.  R.  Co..  5  Phila.  199.  Quoting  Faust 
7>.  Second  &  T.  St.  Pass,  R.  Co.,  3  Phila. 
1^4 ;  Com.  V.  Erie  &  N.  E.  R.  Co.,  27  Pa. 

St.  357. 

208.  Laying  track  no  an  to  Iiitcr- 
f'nrn  with  iVco  access  to  or  use  of 

street.*— Owners  of  lots  abutting  on  or 
adjacent  to  a  public  street  of  a  city,  though 
not  owners  of  a  fee  in  the  street,  have  the 
right  of  access  and  of  quiet  enjoyment,  such 
rights  being  property  which  may  be  pro- 
tected by  injunction  when  Invaded  without 
legal  authority,  //art  v.  Buckner,  56  Am. 
&*  Enfi.  A\  Cas.  430,  54  Fed  Rep.  925,  2  U. 
S.  App.  488,  5  C.  C.  A.  I ;  affirming  52  Fed. 
/y'ep.  835. 

Tliough  the  fee  to  the  streets  in  New  York 
be  in  the  city,  still,  abutting  property  owners 
have  an  easement  \n  the  streets  to  pass  and 
repass,  and  convenient  access  to  p.nd  from 
their  premises,  which  they  may  protect ; 
but  they  cannot  mamtain  an  action  for  the 
mere  inconvenience  occasioned  by  the  law- 
ful use  of  the  street  for  a  street  surface 
railway.  Kellinger  v.  Forty-second  St.  &* 
C.  S.  F.  R.  Co.,  50  A',  y.  206,  3  Am.  Ky. 
Rep.  77.— Appi.vino  People  v.  Kerr,  27  N. 
Y.  188.  Distinguishing  Williams  t'.  New 
York  C.  R.  Co.,  16  N.  Y.  97 :  Craig  v. 
Rochester  City  &  B.  R.  Co.,  39  N.  Y.  404 ; 
Fletcher  v.  Auburn  &  S.  R.  Co  ,  25  Wend. 
462,  Reviewing  Drake  71.  Hudson  River  R. 
Co.,  7  I^arb.  508.— Distinguished  in  Sel- 
den  V.  Jacksonville,  28  Fla.  558.  Followed 
IN  Clark  V.  Rochester  City  &  B.  R.  Co., 
18  N.  Y.  S.  R.  903.  so  Hun  600,  2  N.  Y. 
Supp.  563. 

When  the  public  authorities  have  taken 
possession  of  a  street  or  highway,  and  regu- 
larly defined  the  interests  and  improvements 
necessary  for  the  use  of  the  public  by  estab- 
lishing grades,  etc.,  lot  owners  have  the 
right  to  make  their  improvements  in  refer- 
ence thereto,  and  no  subsequent  change 
which  obstructs  or  impairs  access  to  such 
improvements  can  lawfully  be  made  with- 
out compensating  for  the  injury.  A  finding 
of  the  court  that  such  injury  will  result 
from  laying  a  street-railroad  track  near  the 
sidewalk,  in   front  of  the  owner's  house. 


*  See  also  ante,  100< 


shop,  etc..  is  in  no  way  qualified  or  affected 
by  the  further  fact,  also  found,  that  when  the 
interests  uf  the  company  and  of  the  general 
traveling  public  are  also  taken  into  the  ac- 
•ount,  the  location  would  be  as  little  inju- 
riot: ;  <ij  in  any  other  part  of  the  highway. 
Cincinnati  &-  S.  G.  A.  St.  R.  Co.  v.  Cum- 
minsville,  14  Ohio  St.  523.— CRITICISED  IN 
Adams  v.  Chicago,  B.  &  N.  R.  Co.,  36  Am, 
&  Eng.  R.  Cas.  7.  39  Minn.  286.  39  N.  W. 
Rep.  629.  I  L.  R.  A.  493,  38  Alb.  L.  J.  388. 
Followed  in  Scioto  Valley  R.  Co.  v.  Law- 
rence, 7  Am.  &  Eng.  R.  Cas.  93,  38  Ohio  St. 
41,  43  Am.  Rep.  419.  Quoted  IN  Eaton  v. 
Boston,  C.  &  M.  R.  Co..  51  N.  H.  $04. 
Quoted  and  appioved  in  Campbell  v. 
Metropolitan  St.  R.  Co..  82  Ga.  320.  9  S.  E. 
Rep.  1078. 

Inconvenience  or  annoyance  to  property 
owners,  or  interference  with  business  or 
travel  along  a  highway  which  a  street  pas- 
senger railway  proposes  to  occupy,  is  no 
ground  to  prevent  the  construction  of  a 
railway,  under  Pa.  Act  of  May  14,  1889. 
//ain  V.  Lebanon  &»  A.  St.  R,  Co.,  i  Pa. 
Dist.  452. 

Street-railway  companies  have  no  right  of 
eminent  domain  ;  and  can  acquire  no  right 
by  contract  with  a  city  to  obstruct,  for  pur- 
poses of  Us  construction,  the  right  of  ingress 
and  egress  appurtenant  to  the  abutting  lots, 
even  where  tlie  owners  thereof  have  no  fee 
in  the  street.  But  construction  of  a  road 
upon  the  city's  established  grade  of  the 
streets,  under  a  lawful  contract  with  the  city 
authorities,  and  in  a  lawful  manner,  ex- 
onerates the  company  from  liability,  in  this 
particular,  to  the  abutting  owners.  Smith  v. 
East  End  St.  R.  Co  .  38  Am.  6-  Eng.  R.  Cas. 
470  87  Tenn.  626, 11  5.  IV.  Rep.  709. 

When  land  is  platted  by  the  owner  of  the 
soil  and  lots  bounded  by  a  street  designated 
and  marked  on  the  plat  are  sold,  the  grantee 
acquires  a  right  to  the  street  in  front  of  the 
premises  as  a  means  of  access;  and  lot 
owners  cannot  be  denied  the  right  of  access, 
light,  and  air.  although  the  fee  to  the  street 
may  be  in  the  city,  in  trust  for  the  use  of 
the  public,  instead  of  in  the  abutting  owners, 
for  street  uses.  Dooly  Block  v.  Salt  Lane 
Rapid  Transit  Co.,  56  Am.  &*  Eng,  R.  Cai. 
513,  9  Utah  31,  33  Pac.  Rep.  229. 

209.  or  with  plaintlflf*8  busi- 
ness.— Plaintiff  had  a  retail  dry-goods  store 
on  a  narrow  street  on  which  there  was  al- 
ready one  street-car  track,  and  the  company 
was  unlawfully  proceeding  to  lay  another 


424 


STREET   RAILWAYS,  210-213. 


track  in  the  street  up  to  the  building  but  not 
in  front  of  it,  but  whicli  would  obstruct  the 
street  so  as  to  divert  business  from  his  store 
and  consequently  injure  both  plaintifl,  who 
leased  the  building,  and  the  owner.  Held, 
that  an  injunction  to  restrain  the  laying  of 
the  track  was  the  proper  remedy.  Heer  Dry 
Goods  Co.  V.  Citizens'  R.  Co.,  41  Mo.  App.  63. 

210.  Bight  to  obstruct  trnck  by 
teams.'*' —Where  a  city  ordinance  gives 
street-cars  precedence  over  other  vehicles, 
and  provides  that  if  any  person  "shall  un- 
necessarily obstruct  or  impede  the  running 
of  the  cars '  he  shall  be  liable  to  a  fine  for 
such  offense,  it  is  the  duty  of  a  teamster 
who  has  obstructed  the  track  by  backing 
h)s  team  across  the  same,  for  the  purpose  of 
unloading  goods,  to  ren"ove  at  once  on  the 
approach  of  the  cars ;  and  a  delay  on  his 
part,  even  for  a  short  time,  for  the  purpose 
ot  removing  a  box  which  is  the  last  of  his 
load,  thereby  causing  a  stopping  of  the  cars 
during  such  delay,  is  an  unnecessary  obstruc- 
tion within  the  meaning  of  the  ordinance, 
and  will  render  him  liable  to  the  penalty. 
State  V.  Foley,  31  Iowa  527.— QUOTING  Com. 
V.  Temple,  14  Gray  (Mass.)  69;  Wilbrand 
V.  Eighth  Ave.  R.  Co.,  3  Bosw.  (N.  Y.)  314, 

If  at  any  time  the  owner  of  property 
abutting  on  a  street  has  occasion  for  the 
presence  of  vehicles  on  the  street  in  front 
ot  his  property,  to  take  away  or  deliver  per- 
sons or  goods,  he  may  exercise  that  right 
for  such  reasonable  time  as  is  necessary  for 
his  purposes ;  and  if,  in  such  exercise  of 
the  r'_  Ht,  the  passage  of  street-cars  is  im- 
peded, the  street-cars  must  wait.  Rafferty 
V.  Central  Traction  Co.,  50  Atn.  &*  Eng.  R. 
Cas.  "■").  147  Pa.  St.  579,  23  Ail.  Rep.  884. 

The  owner  of  a  store  has  no  right  to  al> 
low  his  teams  to  stand  transversely  on  the 
street  in  front  of  liis  store  in  discharging 
goods  which  will  entitle  him  to  recover 
against  a  street-car  company  which  has  law- 
fully constructed  its  track  so  as  to  interfere 
with  such  use  of  the  street ;  and  if  the  pub- 
lic convenience  requires  it,  he  may  be  re- 
quired to  drive  his  teams  lengthwise  of  the 
street,  so  as  not  to  interfere  with  the  road. 
Hobart  v.  Milwaukee  City  R.  Co.,  rj  Wis, 
194,  2  Am.  Ry.  Rep.  35. 

211.  Power  of  city  to  aiitliorize 
ivltboiit  conipeiisatioii.t— Under   Iowa 


111 


*See  also/w/,  237. 

f  Right  to  construct  street  railway  without 
compensation  to  abutting  owners,  see  note,  2S 
Am.  St.  Rkp  478. 


Code,  §  464,  empowering  cities  to  authorize 
or  forbid  tlie  laying  of  tracks  for  street 
railways,  but  empowering  them  to  authorize 
such  roads  only  upon  payment  of  damages 
to  the  property  owners,  a  city  cannot  au- 
thorize such  a  road  without  compensation 
to  the  adjoining  property  owners.  Stange 
V.  Dubuque,  14  Am.  &•  Eng.  R.  Cas.  107,  62 
Iowa  303,  17  A^.  W.  Rep.  518. 

A  horse  railway  may  be  placed  and  oper- 
ated on  a  street  without  compensation  to 
abutting  lot  owners.  Eichels  v.  Evansville 
St.  R.  Co.,  5  Am.  6-  Eng.  R.  Cas.  274,  78 
Ind.  261,  41  Am.  Rep.  561.— APPROVING 
Hiss  V.  Baltimore  &  H.  Pass.  R.  Co.,  53 
Md.  242,  36  Am.  Rep.  371 ;  Stanley  v.  Daven- 
port, 54  Iowa  463.  Criticising  Craig  v. 
Rochester  City  &  B.  R.  Co.,  39  N.  Y.  404. 

The  city  of  New  Orleans  has  authority  to 
grant  a  right  of  way  through  her  streets 
and  other  property.  Tilton  v.  New  Orleans 
City  R.  Co.,  3$  La.  Ann.  1062. 

2t2.  Legislative  power  over.— The 
legislature  and  a  city  council  can  lawfully 
empower  a  company  to  locate  and  maintain 
its  railroad  in  the  streets  of  the  city,  with- 
out providing  for  additional  compensation 
to  the  owner  of  the  land.  Briggs  \.  Lewis- 
ton  &*  A.  Horse  R.  Co.,  32  Am.  &•  Eng.  R. 
Cas.  167,  79  Me.  363,  10  Atl.  Rep.  47. 

A  street-railway  company,  which  receives 
its  franchise  from  a  village  whose  charter 
does  not  expressly  confer  upon  the  munici- 
pality power  to  authorize  the  use  of  its 
streets  for  street-railway  purposes  without 
compensating  adjoining  owners,  and  whicli 
power  is  neither  necessary,  essential,  nor  in- 
dispensable to  enable  the  municipality  to 
carry  out  the  objects  and  purposes  for 
which  it  was  created,  accepts  such  franchise 
subject  to  the  right  of  the  legislature  to 
prescribe  such  compensation  as  a  condition 
precedent  to  the  use  of  such  streets  for  the 
construction  of  new  lines  of  road.  Taylor 
V.  Bay  City  St.  R.  Co.,  43  Am.  6-  Eng.  R. 
Cas.  335,  t^  Mich.  77,  45  A'.  W.  Rep.  335.— 
Distinguished  in  Detroit  City  R.  Co.  v. 
Mills,  85  Mich.  634. 

213.  Only  owner  of  real  estate 
can  object— Adding  attorney-gener- 
al as  plaintiiT.— Ordinarily  only  those  res- 
ident on  a  street  where  a  street  railway  is  to 
be  laid  can  interfere  to  prevent  its  construc- 
tion. So  where  plaintiff  alleges  that  he 
owns  lots  on  the  street,  but  this  is  put  in 
issue,  and  the  affirmative  is  not  found  to  be 
true,  and  there  is  no  proof  of  special  injury. 


STREET   RAILWAYS,  214-218. 


4M 


Itrize 
reet 
l»rize 
kges 
au- 
Ition 

>,62 


the  action  cannot  be  maintained.  Dav/s  v. 
Mayor,  etc.,  of  N.  Y.,  14  A'.  Y.  506 ;  revers- 
ing 3  Duer  119.— Reviewing  Fletcher  v. 
Auburn  &  S.  R.  Co..  25  Wend.  (N.  Y.)  463  ; 
Presbyterian  Soc.  v.  Auburn  &  R.  R.  Co.,  3 
Hill  (N.  Y.)  567.— Explained  in  Milburn  v. 
Cedar  Rapids,  i3  Iowa  243.  Followed  in 
Forty  second  St.  4  G.  S.  F.  R.  Co.  v.  Thirty- 
fourth  St.  R.  Co..  20  J.  &  S.  (N.  Y.)  252. 
Not  followed  in  Kucheman  v.  Chicago, 
C.  &  D.  R.  Co..  6  Iowa  366.  Reviewed  in 
Craig  V.  Rochester  City  &  B.  R.  Co.,  39 
N.  Y.  404. 

N.  Y.  Code  of  Pro.  §  173,  relating  to 
amendments,  authorizes  the  court  to  add 
or  strike  out  the  names  of  parties,  or  cor- 
rect a  mistake  in  any  respect,  when  the 
amendment  does  not  change  substantially 
the  claim  or  defense.  Therefore,  where 
persons  claiming  to  be  abutting  owners  sue 
to  prevent  the  unauthorized  use  of  the  street 
by  a  street-railway  company,  and  the  court 
finds  at  the  trial  that  they  have  no  such  in- 
terest as  will  enable  them  to  maintain  the 
action,  the  provision  of  the  statute  is  not 
broad  enough  to  enable  the  court  to  substi- 
tute the  attorney-general  as  plaintiff.  Davis 
V.  Mayor,  etc.,  of  N.  Y.,\\  N.  Y.  506;  re- 
versing 3  Duer  1 19. 

214.  Constructing  road  along 
country  highway.— Mich.  Street  Rail- 
way Act  of  1855.  as  amended  (How.  St.  ch. 
94),  confers  no  power  upon  a  company  organ- 
ized under  it  to  construct,  maintain,  and  op- 
erate a  railroad  along  the  side  of  tne  traveled 
portion  of  a  public  country  highway,  with 
the  consent  of  the  township  authorities, 
upon  a  roadbed  not  conforming  to  its  grade, 
but  made  by  means  of  cuts  and  fills,  without 
compensation  to  abutting  landowners,  at 
whose  suit  equity  will  perpetually  enjoin  the 
maintenance  and  operation  of  such  a  road. 
Nichols  V.  Ann  Arbor  &*  Y.  St.  R.  Co.,  50 
Am.  &*  Eng.  R.  Cas.  250,  87  Mich.  361,  49 
A^.  VV.  Rep.  S38. 

215.  or  on  street  at  seaside 

resort.  —  The  use  and  operation  for  pas- 
senger and  freight  purposes  by  the  Onset 
street-railway  company,  under  the  agree 
ment  made  by  it  with  the  Onset  Bay  Grove 
association,  of  the  railroad  already  built  by 
that  association  along  an  avenue  at  its  sea- 
side resort,  rendered  such  street-railway 
company  liable  under  its  charter  (ch.  285  of 
1886)  to  settle,  in  the  manner  provided  by 
Mass.  Pub.  St.  ch.  112,  all  damages  caused 
to  the  abutting  lot  owners  by  the  use  of  the 


avenue  for  the  building  of  such  railroad. 
Onset  St.  R.  Co.  v.  Plymouth  County  Com'rs, 
154  Mass.  39S,  28  N.  E.  Rep.  286. 

If  a  company,  whose  charter  requires  it 
to  settle  all  damages  caused  by  the  tak- 
ing of  streets  at  a  seaside  resort  for  the 
building  of  its  road,  constructs  the  same, 
and  transports  both  freight  and  passengers 
thereon,  the  abutting  lot  owners  who  are 
seized  in  fee  of  easements  in  such  streets, 
and  who  are  injured  by  their  obstruction 
or  change  of  grade,  are  entitled  to  damages, 
although  not  owning  to  the  centre  of  the 
streets.  Onset  St.  R.  Co.  v.  Plymouth  County 
Com'rs,  154  Mass.  395,  28  N.  E.  Rep.  286. 

216.  Bigiit  to  cut  down  street.— 
Where  a  company  is  permitted  by  a  city  to 
construct  its  road  in  a  street  and  upon  the 
established  grade  thereof,  such  company, 
with  permission  of  the  city,  may  cut  down 
or  grade  the  street  so  as  to  bring  it  to  the 
established  grade.  In  doing  so  the  com- 
pany acts  for  the  city,  and  in  bringing  the 
street,  or  any  part  thereof,  to  an  established 
f^.ade  it  is  not  liable  to  adjoining  lot  own- 
ers on  account  of  cutting  down  or  grading 
the  street,  if  the  grading  is  done  in  a  good 
and  workmanlike  manner,  and  confined 
wholly  within  the  street.  Inter-State  Con. 
R.  T.  R.  Co.  V.  Early,  46  A'i«.  197,  26  Pac. 
Rep.  422. — Distinguishing  Central  Branch 
U.  P.  R.  Co.  V.  Twine,  23  Kan.  585. 

217.  Assessing  lot  owner  for  im- 
provements of  whole  street.— Though 
the  statute  certainly  contemplates  that  the 
tracks  of  street  railroads  and  a  space  of 
two  feet  on  either  side  thereof  should  be 
paved  or  macadamized  by  the  companies 
at  their  own  expense,  and  abutting  own- 
ers cannot  be  required  to  contribute  to 
the  cost  thereof,  yet  a  broad  street  may 
well  admit  of  general  improvement  as  a 
system  separate  and  distinct  from  the  mac- 
adamizing or  paving  of  the  street  railroads 
located  thereon.  Where  this  is  so,  abutting 
owners  may  be  required  to  contribute  their 
proper  part  to  defray  the  cost  of  general 
improvement,  whether  the  special  improve- 
ment required  of  railroad  companies  be 
made  or  not.  Bacon  v.  Mayor,  etc.,  of  Sa^ 
vannah,  86  Ga.  301. 12  5'.  E.  Rep.  580. 

218.  Using  street  for  storing  or 
switching. — A  horse  railroad  constructed 
under  legislative  authority  on  the  surface 
of  the  street  is  not  an  unlawful  infrference 
with  the  rights  of  the  abutting  owner,  but 
is  a  street  use  consistent  with  such  rights. 


li 


fill. 


426 


STREET   RAILWAYS,  210-224. 


An  unreasonable  use  of  the  street,  however, 
by  the  railroad  coinpiiny,  such  as  using  a 
switch  or  siding  thereon  for  the  storing  and 
deposit  of  its  cars  to  the  injury  of  an  ad- 
joining owner,  gives  to  the  latter  a  right  of 
action  for  the  special  injury.  Mahndy  v. 
Bushwick  R.  Co.,  14  Am.  <S-  Eng.  R.  Cas. 
142,91  A^.  Y.  148,43  Am.  Rep.  661.— Fol- 
lowing Story  V.  New  York  El.  R.  Co. ,  90 
N.  Y.  122;  People  v.  Kerr,  27  N.  Y.  188.— 
Applied  in  Falker  v.  New  York,  W.  S.  & 
B.  R.  Co..  17  Abb.  N.  Cas.  (N.  Y.)  279. 
Followed  in  Clark  v.  Rochester  City  &  B. 
R.  Co.,  18  N.  Y.  S.  R.  903,  50  Hun  600.  2 
N.  Y.  Supp.  563.  Quoted  in  Hine  v.  New 
York  El.  R.  Co..  27  N.  Y.  S.  R.  303.  54  Hun 
435,  7  N.  Y.  Supp.  464;  Abendroth  v.  New 
York  El.  R.  Co..  33  N.  Y.  S.  R.  475. 

219.  Right  of  one  purchasing  af- 
ter road  is  built  to  ol>Joct.— Leave  was 
asked  to  file  an  information  against  a  horse 
railway,  requiring  it  to  show  its  right  to 
extend  its  road  and  to  use  steam  power 
over  a  part  of  the  same.  It  did  not  appear 
that  the  relator  was  specially  injured  by 
the  construction  and  operation  of  the  road, 
but  it  was  shown  that  relator  acquired  his 
land,  abutting  upon  the  road,  after  the  con- 
struction of  the  latter,  and  that  it  was  the 
almost  universal  desire  of  the  people  that 
the  road  be  operated  by  steam,  and  the  facts 
tended  to  show  that  the  application  was  not 
for  the  public  gooi\  Held,  that  leave  was 
properly  refused.  People  ex  rel.  v.  North 
Chicago  R.  Co.,  88  ///.  537,  21  Am.  Ry.  Rep. 
359. —Quoted  in  People  v.  Wabash,  St.  L. 
&  P.  R.  Co..  12  III.  App.  263. 

220.  Laying  track  on  one  side  of 
street. — Tracks  should  be  laid  as  nearly  as 
practicable  in  the  middle  of  a  street.  If  the 
franchise  does  not  indicate  the  precise  posi- 
tion of  the  track,  and  it  is  not  as  nearly  as 
practicable  in  the  middle  of  the  street,  the 
track  is  an  unauthorized  obstruction,  and 
the  owner  of  the  fee  of  the  street  may  main- 
tain ejectment  against  the  company.  Finch 
V.  Riverside  &*  A.  R,  Co.,  46  Am.  &* 
Eng.  R.  Cas.  107,  87  Cal.  597,  25  Pac. 
Rep.  765. 

The  mere  fact  that  it  is  more  convenient 
to  the  traveling  public  to  have  the  track  on 
the  side  of  the  street,  and  that  it  obstructs 
travel  a  little  less  than  it  would  do  in  the 
centre  of  the  street,  is  not  a  sufRcient  rea- 
son for  not  complying  with  the  law.  Finch 
V.  Riverside  &*  A.  R.  Co.,  46  Am.  &*  Eng.  R, 
Cas.  107,  87  Cal.  S97,  25  Pac.  Rep.  765. 


221.  Liability  of  lessees  under 
unauthorized  lease.— A  company  which 
has  without  authority  of  law  leased  the 
property  and  franchises  of  another  com- 
pany is  responsible  to  the  commonwealth, 
but  not  to  a  private  citizen  who  has  sus- 
tained no  special  injury  for  which  he  is  en- 
titled to  redress.  Rafferty  v.  Central  Trac- 
tion Co.,  50  Am.  &*  Eng.  R.  Cas.  239,  147  Pa. 
St.  579,  23  Atl.  Rep.  884. 

222.  Conforming  to  city  ordi- 
nances.— A  street  railway  cannot  escape 
liability  for  damages  to  an  abutting  lot 
owner,  caused  by  constructing  its  track  so 
as  to  flow  the  lot,  on  the  ground  that  by 
its  charter  it  is  required  to  construct  its 
road  as  required  by  city  ordinances,  and 
that  said  road  was  so  constructed.  Alton 
6-  U.  A.  Horse  R.  &*  C.  Co.  v.  Deitz,  50  lU. 
210.— Quoted  in  Houston  City  St.  R.  Co. 
V.  Delesdernier.  84  Tex.  8^. 

Where  a  company  changes  the  grade  of  a 
street,  under  authority  of  the  city  council, 
it  does  not  thereby  commit  a  trespass 
against  the  adjoining  land  owners.  Briggs 
V.  Lewiston  &*  A.  Horse  R.  Co.,  32  Am.  &• 
Eng.  R.  Cas.  xdrj,  79  Me.  363.  10  Atl.  Rep.  47. 

223.  Silence  of  abutting  owner, 
eifcct  of.  —  Where  adjoining  property 
owners  remain  silent  when  a  street-car 
track  is  being  laid,  their  silence  will  be 
taken  as  acquiescence.  Tilton  v.  New 
Orleans  City  R.  Co.,  35  La.  Ann.  1062. — 
Quoting  French  v.  New  Orleans  4  C.  R. 
Co..  2  La.  Ann.  87. 

Where  land  has  been  opened  as  a  public 
street,  and  has  been  accepted  by  the  public 
and  used  for  many  years  as  a  public  thor- 
oughfare, and  the  adjoining  lots  have 
been  sold  as  bordering  upon  the  street, 
the  owners  of  the  soil  are  estopped  from 
denying  that  it  is  a  street  or  a  highway 
for  all  purposes  for  which  it  might  be  fairly 
inferred  that  the  dedication  was  intended. 
Hiss  v.  Baltimore  &*  H.  Pass.  R.  Co.,  4  Am. 
&•  Eng.  R.  Cas.  aoi,  53  Aid.  242,  36  Am. 
Rep.  371- 

224.  Separate  owners  may  Join 
in  one  petition.  —  Separate  lot  owners 
abutting  on  a  street,  the  grade  of  which 
was  changed  for  the  purpose  of  operating  a 
railway  thereon,  have  the  right,  under  the 
Massachusetts  statutes,  to  join  in  one  peti- 
tion to  the  county  commissioners  for  the 
assessment  of  joint  or  several  damages; 
and  the  question  whether  such  lot  owners 
had  suffered  any  legal  damage  from  the 


STREET  RAILWAYS,  225-230. 


427 


ler 

fich 
Itlie 
)ni- 
llth, 

pus- 
en- 

rac- 

dl- 

ape 
lot 
so 
by 
its 

and 

//OH 

Co. 


construction  and  operation  of  a  railroad  is 
a  question  of  fact  to  be  determined  by  the 
county  commissioners,  whose  findings  will 
not  be  revised  on  ctrtiorari.  Onset  St.  R.  Co. 
V.  Plymouth  County  Com' rs,  $6  Am.&*  Eng.  R. 
Cas.  524,  154  Mass.  395,  28  N.  E.  Rep.  286. 

Where  separate  lot  owners  join  in  one 
petition  for  damages,  separate  distress  war- 
rants may  issue  to  enforce  the  damages 
awarded  to  each  of  them.  Onset  St.  R.  Co.  v. 
Plymouth  County  Com'rs,  56  Am.  &*  Eng.  R. 
Cas.  524,  154  Mass.  393,  28  N.  E.  Rep.  286. 

226.  Measure  of  damages,  gener- 
ally.— For  injuries  resulting  from  laying  a 
railroad  track  in  a  street  a  single  recovery 
can  be  had  for  the  whole  damage  resulting 
from  the  act.  The  measure  of  compensa- 
tion is  the  actual  diminution  in  the  market 
value  of  the  premises,  for  any  use  to  which 
they  may  reasonably  be  put,  occasioned  by 
the  construction  and  operation  of  the  rail- 
road through  the  adjacent  street.  Denver 
V.  Bayer,  7  Colo.  113,  2  Pac.  Rep.  6. — Fol- 
lowed IN  Denver  &  R.  G.  R.  Co.  v.  Bourne, 
32  Am.  &  Eng.  R.  Cas.  227,  1 1  Colo.  59. 

226. for  changing  grade  and 

using  steam. — Tlie  owners  of  lots  abut- 
ting on  a  platted  street  have  such  ease- 
ments in  fee  therein  that  they  are  entitled 
to  damages  for  any  obstruction  of  the  street, 
even  though  the  soil  is  owned  by  another; 
and  where  a  land  company  changes  the 
grade  of  a  street  and  builds  and  operates  a 
steam-motor  railway  therein,  without  legis- 
lative authority,  and  subsequently  a  railway 
company  is  incorporated  and  authorized 
to  acquire  the  track  already  laid,  on  con- 
dition that  compensation  be  made  to  the 
lot  owners  for  all  damages  incurred  by  the 
building  and  operation  of  the  road,  the  use 
of  the  track  by  the  railway  company  makes 
it  liable  for  such  damages,  without  any 
formal  taking  or  seizure  of  the  property. 
Onset  St.  R.  Co.  v.  Plymouth  County  Com'rs, 
$6  Am.  &*  Eng.  R.  Cas.  524,  1 54  Mass.  395, 
28  N.  E.  Rep.  286. 

227.  for   laying  track.  —  The 

charter  of  a  company  provided  that  "  when- 
ever any  estate  abutting  upon  a  street  or 
highway,  upon  or  over  which  the  rails  of 
said  corporation  shall  be  laid,  shall  be  in- 
jured thereby,  the  said  corporation  shall  be 
liable  to  pay  the  owner  or  owners  thereof 
the  damages  thereby  occasioned  to  said 
estate."  Held,  that  an  owner  of  abutting 
property  was  only  entitled  to  recover  dam- 
ages for  injuries  resulting  from  the  laying 


of  the  r&ils,  as  distinguished  from  those  re- 
sulting from  the  use  of  them  as  laid.  X^ost 
V.  Newport  St.  R.  Co.,  46  Am.  &»  Eng.  R. 
Cas.  91,  17  R.  I.  134,  20  Atl.  Rep.  267. 

228. for  unlawful  use  of  track. 

— Legislative  authority  to  a  company  to  lay 
its  tracks  and  erect  shops  and  engine  houses 
within  the  limits  of  a  city  does  not  confer 
the  power  to  exercise  the  authority  so  as  to 
maintain  a  nuisance ;  and  if  a  nuisance  is 
maintained,  so  that  adjoining  property  is 
injured,  the  measure  of  damages  is  not 
simply  the  depreciation  of  the  property. 
The  jury  may  consider  any  personal  discom- 
fort which  may  have  been  caused  by  the 
nuisance.  Baltimore  &*  P.  R.  Co.  v.  Ft/th 
Baptist  Church,  108  U.  S.  317,  2  Sup.  CI. 
Rep.  719. 

Though  a  company  be  authorized  to 
operate  its  road  on  a  street,  still  abutting 
property  owners  who  do  not  own  the  fee  of 
the  street  may  recover  such  *damages  as 
may  result  to  them  from  the  unlawful  and 
improper  use  of  the  street.  Iron  Mountain 
R.  Co.  V.  Bingham.  87  Tenn.  522,  1 1  5.  W. 
Rep.  705. 

After  a  street  railroad  has  been  lawfully 
constructed  the  company  is  liable  to  abut- 
ting owners  for  any  damages  resulting  to 
them  from  the  unlawful  or  excessive  use  of 
the  road.  Smith  v.  East  End  St.  R.  Co., 
38  Am.  6-  Eng.  R.  Cas.  470,  87  Tenn.  626, 
II  S.  W.  Rep.  709. 

229.  Track  may  be  laid  before 
damages  ascertained.  —  Iowa  Code,  § 
464,  provides  that  cities  shall  have  the 
power  to  authorize  or  forbid  the  location 
and  laying  down  of  tracks  "  for  railways  and 
street  railways  on  all  streets,  alleys,  and 
public  places;  but  no  railway  track  can 
thus  be  located  and  laid  down  until  after 
the  injury  to  the  property  abutting  on  the 
street  "  has  been  ascertained  and  paid.  Held, 
that  this  shows  a  distinction  between  or- 
dinary railways  and  street  railways,  and  it 
is  only  where  an  ordinary  railway  operated 
by  steam  is  to  be  built  that  the  damages 
must  be  ascertained  and  paid  before  the 
road  is  authorized.  Sears  v.  Marshalltown 
St.  R.  Co.,  20  Am.  6-  Eng.  R.  Cas.  36,  6$ 
Iowa  742,  23  N.  W.  Rep.  1 50. 

▼I.  JOIHT  nU  OF  TBAOKB. 
I.  Between  Company  and  the  Public. 

230.  Extent  to  which  public  may 
use  track.— Arising  from  the  legislative 
requirement  that  the  rails  shall  be  laid  on 


428 


STREET   RAILWAYS,  231,  232. 


I'.!, 


■t  I 


i'M 


I!  1,1  !■') 


the  level  of  the  highway,  and  of  a  width  cor- 
responding to  the  wagon  track  estabh'shcd 
by  law,  there  is  an  implied  permission,  on 
the  part  of  a  horse-railroad  company,  to  the 
use  of  the  track  by  other  vehicles  to  some 
extent.  Such  permission  does  not  emanate 
from  the  company  so  as  to  be  revocable  by 
it.  It  results  from  the  nature  of  the  grant, 
and  is  in  the  form  of  a  condition  resulting 
from  the  grant  and  its  acceptance.  The 
use,  however,  thus  impliedly  permitted  is 
only  such  as  is  consistent  with  the  grant  to 
the  company,  and  nuc  destructive  of  its  pur- 
pose. Any  use  inconsistent  with  the  grant, 
and  destructive  of  its  purpose,  is  excluded. 
Citizens'  Coach  Co.  v.  Camden  Horse  R.  Co.,  i 
Am.  &*  Eng.  R.  Cas.  190,  33  N.  J.  Eg.  267, 
36  Am.  R*p.  542  ;  affirming  31  N.  J.  Eg.  525. 

The  public  have  the  right  to  drive  upon 
and  across  street-car  tracks ;  but  not  so  as 
to  interfere  witli  the  proper  business  of  the 
company.  iVilbrand  v.  Eighth  Ave.  R.  Co., 
3  Bosw.  (N.  K.)  314.— Distinguished  in 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Phillips,  31 
Am.  &  Eng.  R.  Cas.  432,  112  Ind.  59. 
Quoted  in  State  v.  Foley,  31  Iowa  527.      , 

When  a  railroad  has  been  lawfully  laid 
in  a  public  si  et,  it  does  not  become  a  part 
of  the  street  so  as  to  authorize  the  public  at 
large  and  other  railroad  corporations,  with 
the  consent  of  the  common  council,  to  use 
the  road  with  the  appropriate  cars  or  car- 
riages for  the  transit  of  passengers,,  in  com- 
mon with  the  owners  of  the  track.  Brook- 
lyn C.  R.  Co.  V.  Brooklyn  City  R.  Co.,  32 
Barb.  {N.  V.)  358.  —  Quoting  Davis  v. 
Mayor,  etc.,  of  N.  Y.,  14  N.  Y.  506. 

231.  Company's  right  paramount 
but  not  excluHive.*— A  surface-railroad 
company  has  a  paramount  right  to  use  its 
tracks,  but  not  an  exclusive  right,  f/ennessy 
v.  Brooklyn  City  R.  Co,  73  Hun  569,  56 
A^.  V.  S.  R.  151,  26  A^.  Y.  Supp.  321.— Fol- 
lowing Fleckenstein  v.  Dry  Dock,  E.  B.  & 
B.  R.  Co..  105  N.  Y.  6ss.—Cam6eis  v.  Third 
Ave.  R.  Co.,  48  A^.  Y.  S.  R.  709.  i  Misc. 
158, 20  A^.  Y.  Supp.  633.— Quoting  Adolph 
V.  Central  Park.  N.  &  E.  R.  R.  Co.,  65  N.  Y. 
5S4;  Fleckenstein  v.  Dry  Dock,  E.  B.  & 
B.  R.  Co.,  105  N.  Y.  655,  8  N.  Y.  S.  R.  32 ; 
Winters  7'.  Kansas  City  Cable  R.  Co.,  99 
Mo.  509. 

A  street-railroad  company  has  not  the 
exclusive  right  to  the  use  of  its  tracks,  but 

*  Street-cars  have  preferential  right  to  use 
track,  see  note.  19  Am.  &  Eng.  R.  Cas.  131. 


simply  a  paramount  right,  and  while  a  per- 
son lawfully  driving  on  the  tracks  may  not 
recklessly,  carelessly,  or  wilfully  obstruct  the 
passage  of  its  cars,  he  is  not  absolutely 
bound  to  keep  off  or  get  of!  the  tracks,  and 
if  he  fairly  and  in  a  reasonable  manner 
respects  the  paramount  right  of  the  cor- 
poration, and  is,  without  fault  on  his  part,  in- 
jured by  carelessness  or  fault  chargeable  to 
it,  he  may  maintain  an  action  for  his  dam- 
ages. Fleckenstein  v.  Dry  Dock,  E.  B.  S- 
B.  R.  Co.,  105  N.  Y.  655,  i\  N.E.  Rep.  951, 
I  Silv.  App.  447.8  A^.  Y.  S.  R.  32.— QUOTED 
IN  Cambeis  v.  Third  Ave.  R.  Co.,  48  N.  Y. 
S.  R.  709. 

The  streets  of  a  city  are  destined  for  pub- 
lic use,  but  not  for  a  particular  mode  of 
public  use.  Brown  v.  Duplessis,  14  La. 
Ann.  854. 

Travelers  on  the  streets  have  a  right  to 
use  the  tracks  of  the  company  and  are  not 
trespassers.  A  party  using  due  care  and 
diligence  when  using  such  street  and  tracks 
has  a  right  to  recover  from  the  railroad 
company  for  injury  inflicted  by  its  gross 
fault  and  negligence,  where  the  cause  is 
proximate.  Cline  v.  Crescent  CityR.  Co.,  43 
La.  Ann.  yrj,  9  So.  Rep.  122. 

A  street  railway  carrying  passengers  only 
is  a  public  highway.  .S7.  Louis  R.  Co.  v. 
Southern  R.  Co.,  105  Mo.  577,  155.  JV.  Rep. 
1013. 

232.  Rights  of  persons  driving 
across  the  track.— One  traveling  upon  a 
city  street  has  a  right  to  drive  his  wagon 
upon  or  across  the  track  of  a  street  railroad, 
and  this  right  is  not  confined  to  occasions 
where  the  other  portions  of  the  street  are 
crowded  or  obstructed.  The  only  limitation 
of  the  right  is  that  he  must  not  unneces- 
sarily interfere  with  the  passage  of  the  cars, 
which  have  the  preference  in  the  use  of  the 
track.  Adoiph  v.  Central  Park.  N.  5-  E.  R. 
R.  Co.,  65  N.  Y.  554,  mem. ;  reversing  i  /.  6- 
S.  186.— Distinguished  in  Louisville,  N. 
A.  &  C.  R.  Co.  V.  Phillips,  31  Am.  &  Eng.  R. 
Cas.  432,  112  Ind.  $9.  Quoted  in  Cambeis 
V.  Third  Ave.  R.  Co.,  48  N.  Y.  S.  R.  709. 

A  person  about  to  drive  across  a  street- 
car track  is  not  bound  to  wait  until  the 
company's  cars  pass,  if  a  prudent,  careful 
person  would  deem  it  safe  to  cross  the 
track ;  and  where  a  person  drives  a  heavily 
loaded  team  onto  a  track,  at  a  street  cross- 
ing, before  he  sees  an  approaching  car 
which  is  from  sixty  to  eighty  feet  distant, 
he  has  a  right  to  proceed,  and  the  car  must 


STREET   RAILWAYS,  233-236. 


429 


per- 
not 
the 
tely 
and 
iner 


be  stopped,  if  necessary  to  avoid  a  collision. 
Witzelw.  Third  Ave.  Ji.  Co  ,  23  N.  V.  Supp. 
317,  3  Misc.  561 ;  reversed  in  6  Misc.  635, 
mem, 

233. or  along  the  track.— The 

cars  on  a  horse  railroad  have,  when  in  mo- 
tion, the  right  of  way  upon  the  track,  both 
as  against  those  whom  they  meet  and  those 
who  go  in  tlie  saniedirectio.  sx.  a  speed  that 
would  delay  the  cars,  Jersey  City  &•  B.  R. 
Co.  V.  Jersey  City  &*  H.  Horse  R.  Co.,  20  N. 
J.  Eg.  61 ;  reversed  on  other  grounds  in  21 
N.J.  Eg.  550. 

Street-cars  have  a  right  to  pass  upon  a 
track  without  hindrance ;  but  when  the 
track  is  not  used  for  the  passage  of  cars, 
other  vehicles  may  use  it  in  traveling  along 
the  street ;  and  when  the  driver  of  such  a 
vehicle  meets  an  approaching  car,  he  is 
bound  to  remove  his  vehicle  from  the  track 
in  time  to  give  free  passage  to  the  car.  But 
what  will  be  deemed  due  diligence  in  so  re- 
moving his  vehicle  is  a  question  for  the 
jury,  to  be  determined  upon  the  circum- 
stances of  each  particular  case.  North 
Hudson  County  R.  Co.  v.  Isley,  34  Am.  &• 
Eng.  R.  Cas.  94,  49  N.J.  L.  468, 10  Atl.  Rep. 
665,  9  Cent.  Rep.  122. 

A  person  has  a  right  to  drive  on  any  part 
of  a  street  which  is  a  public  highway,  not- 
withstanding the  fact  that  a  street-car  track 
be  laid  on  a  part  of  the  street ;  and  neither 
the  company  nor  any  of  its  employes  has  a 
right  forcibly  to  run  a  person,  with  his  horse 
and  wagon,  off  the  track ;  and  if  in  doing  so 
the  horse  is  injured  and  the  wagon  broken, 
the  owner  has  a  right  of  action  against  the 
company  for  damages.  Fettrich  v.  Dicken- 
son, 22  How.  Pr.  (N.  y.)  248. 

A  person  has  a  right  to  drive  upon  the 
tracks  of  a  street-car  company,  subject  to  a 
careful  regard  for  the  rights  of  the  com- 
pany ;  but  he  is  bound  to  be  vigilant  to  dis- 
cover an  approaching  train,  and  quick  to 
leave  the  tracks  when  such  train  is  discov- 
ered. Hennessy  v.  Brooklyn  City  R.  Co.,  73 
Hun  569.  56  A^.  Y.  S.  R.  151,  26  N.  Y. 
Supp.  321. 

Street-railway  companies  have  not  an  ex- 
clusive right  to  the  highways  upon  which 
they  are  permitted  to  run  their  cars,  or  even 
to  the  use  of  their  own  tracks.  The  public 
have  a  right  to  use  these  tracks  in  common 
with  the  companies,  and,  therefore,  while 
the  rights  of  the  latter  are  in  some  respects 
superior  to  those 'of  the  former,  it  is  not 
negligence  fitr  m  for  a  citizen  to  be  any- 


where upon  such  tracks.  So  long  as  the 
right  of  a  common  user  of  the  tracks  exists 
in  the  public,  it  is  the  duty  of  companies  to 
exercise  such  watchful  care  as  will  pr  jvent 
accidents  or  injuries  to  persons  who,  with- 
out negligence  on  their  own  part,  may  not 
at  the  moment  be  able  to  get  out  of  the  way 
of  a  passing  car.  The  degree  of  care  to  be 
exercised  must  necessarily  vary  with  the 
circumstances,  and  therefore  no  unbending 
rule  can  be  laid  down.  Gibbons  v.  IVilkeS' 
Barre  &•  S.  St.  R.  Co.,  155  Pa.  St.  279.  26 
Atl.  Rep.  417.— Quoting  and  following 
Gilmore  v.  Federal  St.  &  P.  V.  Pass.  R.  Co., 
153  Pa.  St.  31. 

234. and  at  street  crossing's.— 

To  a  certain  degree  street-cars  have  a  right 
of  way  along  their  tracks  in  preference  to 
other  vehicles  passing  along  the  tracks,  but 
they  have  not  an  exclusive  right  to  their 
tracks  over  other  vehicles  merely  crossing. 
Buhrens  v.  Dry  Dock,  E.  B.  &•  B.  R.  Co., 
S3  Hun  571,  25  N.  Y.  S.  R.  191,6  N.  Y. 
Supp.  224 ;  affirmed  in  125  A'^  Y.  702,  mem., 
34  A^.  Y.  S.  R.  1012,  mem.,  26  N.  E.  Rep. 
752. 

At  the  intersection  of  streets,  street-cars, 
as  to  their  right  of  way,  have  the  same  rights 
as  other  vehicles ;  and  whichever  is  first  on 
a  crossing  has  the  right  of  way,  and  the 
right  to  assume  that  the  other  will  stop,  or 
give  to  the  one  first  reaching  the  crossing 
the  right  of  way  to  which  he  is  entitled. 
Buhrens  v.  Dry  Dock,  E.  B.  &»  B.  R.  Co.,  S3 
Hun  571.  2S  A^.  Y.  S.  R.  191.  6  N.  Y.  Supp. 
224 ;  affirmed  12s  A'.  Y.  702,  mem.,  y^  N .Y. 
S.  R.  1012,  mem.,  26  N.  E.  Rep.  752. 

A  street-car  and  a  vehicle  have  equal 
rights  at  a  crossing,  and  the  right  of  each 
should  be  exercised  in  a  reasonable  and 
careful  manner  so  as  not  unreasonably  to 
abridge  or  interfere  with  the  right  of  the 
other.  Bernkard  v.  Rochester  R.  Co.,  51 
A^.  Y.  S.  R.  880,  22  A^  Y.  Supp.  821,  68 
Hun  369. 

235.  Persons  driTing  on  track  as- 
sume risk  and  are  charged  with 
greater  care. — The  primary  purpose  of  a 
street-car  track  is  not  travel  by  the  general 
public,  but  use  by  the  company,  and  a  per- 
son driving  upon  it  must  be  deemed  to  have 
assumed  the  ordinary  risks  attending  such 
use,  one  of  which  is  held  to  be  the  dropping 
of  a  wheel  into  a  rut  outside  the  rail,  worn 
by  such  frequent  dropping  of  wheels.  Kor- 
netzski  v.  Detroit  City  R,  Co.,  94  Mich.  341, 
53  M  W.  Rtp.ivA. 


430 


STREET   RAILWAYS,  236-239. 


il 


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t 


¥'• 


I 


if 


Uu 


If  an  individual  sees  fit  to  run  his  carriage 
or  wagon  upon  the  rails,  he  is  bound  to  ex- 
ercise more  care  and  diligence  to  avoid  a 
collision  than  he  would  be  if  he  were  upon 
other  parts  of  the  street.  Wilbrand  v. 
E^htk  Ave.  Ji.  Co.,  3  Bosw.  (N.  Y.)  314. 

The  company  is  entitled  to  the  unre- 
stricted use  of  its  rails  for  the  progress  of 
its  cars,  within  the  limit  of  speed  which  the 
law  allows ;  and  the  driver  of  any  other 
veliicle,  being  unnecessarily  on  the  track,  is 
bound  to  exercise  greater  care  than  if  upon 
the  common  pavement,  to  see  that  an  ap- 
proaching car  is  not  impeded,  and  if 
through  negligence  or  wilfulness  in  this  re- 
spect a  collision  ensues,  he  should  not  have 
damages  against  the  company,  even  if  it  is 
also  in  fault.  Wilbrand  v.  Eighth  Avt.  R. 
Co.,  3  Bosw.  (JV.  V.)  314. 

236.  Rule  as  to  turning  to  right 
not  applicable  to  street-car.  —  As 
street-cars  can  only  run  upon  the  rails,  they 
cannot  turn  to  the  right  or  left  to  avoid 
teams.  They  are,  therefore,  given  a  para- 
mount right  to  the  use  of  the  tracks,  but  not 
an  exclusive  right.  Bernhard  v.  Rochester 
R.  Co.,  68  Hun  369,  51  A^  Y.  S.  R.  880,  22 
N.  Y.  Supp.  821. 

Wash.  Code  1881,  §3030,  requiring  per- 
sons driving  vehicles  who  shall  meet  on  a 
public  highway  to  turn  to  the  right  of  the 
centre  of  the  road,  has  no  application  to 
vehicles  meeting  a  street-car,  as  it  is  the 
duty  of  the  driver  of  a  vehicle  in  such  case 
to  turn  to  either  side  so  as  best  to  avoid  a 
collision.  Spurrier  v.  Front  St.  Cable  R. 
Co.,  3  Wash.  659,  29  Pac.  Rep.  346. 

As  the  driver  of  a  vehicle  has  a  right  to 
travel  upon  any  part  of  a  street,  it  is  proper 
to  refuse  to  charge  the  jury  that  "  as  plain- 
tiff was  on  the  wrong  side  of  the  street  at 
the  time  of  the  accident,  the  presumption 
arises  that  the  collision  was  due  to  her 
fault."  Spurrier  v.  Front  St.  Cable  R.  Co., 
3  Wash.  659,  29  Pac.  Rep.  346. 

237.  Obstructing  cars  by  business 
In  street.* — A  street-car  company  applied 
for  an  injunction  to  prevent  the  proprietors 
of  a  foundry  from  hauling  large  boilers  on 
a  street,  which  would  so  occupy  it  as  to  pre- 
vent the  running  of  cars.  The  evidence 
showed  that  the  hauling  would  not  injure 
the  street,  and  that  the  plan  proposed  in- 
volved less  inconvenience  to  the  public  than 
any  other.    The  court  refused  f>   prelimi- 


*  See  also  <i«i/f,  210. 


nary  injunction,  without  prejudice  to  the 
company  to  renew  the  application  if  the 
hauling  of  the  first  boiler  should  show  cause 
for  it  to  do  so.  Second  &*  T.  St.  R.  Co.  v. 
Morris,  8  Phila.  (Pa.)  304. 

Both  the  owner  of  a  frame  building  and 
one  whom  he  hires  to  remove  it  to  a  dis- 
tant place,  which  requires  it  to  pass  along 
a  street  where  a  street-car  line  runs,  are 
liable  to  the  company  where  the  building 
breaks  down  and  prevents  the  running 
of  cars  for  two  days,  the  removal  having 
been  begun  without  a  permit  from  the  city 
ofRcers,  as  required  by  an  ordinance.  To- 
ronto St.  R.  Co.  V.  Dollery,  12  Ont.  App. 
679.  —  Reviewing  Ellis  v.  Sheffield  Gas 
Consumers'  Co.,  2  El.  &  Bl.  769;  Hole  v. 
Sittingbourne  &  S.  R.  Co.,  6  H.  &  N.  488. 

As  the  company  had,  by  its  charter,  the 
superior  right  of  user  and  occupation  of  the 
street,  a  duty  was  cast  upon  the  owner  to 
see  that  proper  precautions  were  taken  to 
prevent  injury  arising  from  obstructing  the 
railway  by  the  building,  which  could  not, 
from  its  size,  be  removed  along  the  street 
without  obstructing  the  traffic.  Toronto  St. 
R.  Co.  V.  Dollery,  12  Ont.  App.  679. 

238.  Bight  of  persons  in  rival 
business  to  use  tracks.  —  A  railroad 
track  is  clearly  private  property,  and  cannot 
fairly  be  considered,  in  any  just  sense,  to  be 
devoted  by  the  makers  to  public  uses.  No 
person,  therefore,  natural  or  corporate,  can, 
at  his  mere  will,  appropriate  the  track  of  a 
horse-railroad  company  to  his  own  private 
use  and  convenience  by  adapting  his  car- 
riage to  such  use  for  that  purpose.  Jer- 
sey City  &•  B.  R.  Co.  v.  Jersey  City  (S-  H. 
Horse  R.  Co.,  20  A'.  /.  Eq.  61  ;  reversed  in 
21  N.J.  Eg.  550. 

The  public  right  to  use  a  horse-railroad 
track  in  the  streets  of  a  city  for  vehicles, 
incidentally,  in  traveling  through  the  streets, 
does  not  authorize  a  transportation  company 
to  use  it  in  competition  with  the  railroad 
company.  Camden  Horse  R.  Co.  v.  Citizens' 
Coach  Co.,  28  /'.  /.  Eq.  145;  reversed  on 
another  point  itt  29  A'.  /.  Eq.  299.  Citizens' 
Coach  Co.  V.  Camden  Horse  R.  Co.,  i  Am.  &* 
Eng.  R.  Cas.  190,  33  A'.  /.  Eq.  267,  36  Am. 
Rep.  542 ;  affirming  31  A''.  /.  Eq.  525. — 
Following  Raritan  &  D.  B.  R.  Co.  v. 
Delaware  ft  R.  Canal  Co.,  18  N.  J.  Eq.  546. 

230.  Right  to  construct  track  on 
street  used  by  plank  road.  —  An 
injunction  lestraininga  street-railway  com- 
pany from  entering  upon  a  street   occu- 


STREET   RAILWAYS,  240. 


481 


the 
the 
use 

V. 


pied  by  a  plank>road  company  for  the  pur- 
pose of  constructing  an  electric  railway 
track  or  incumbrance  of  any  kind  upon  said 
street,  or  in  any  way  preparing  to  lay  such 
track,  cannot  be  said  to  cover  the  operation 
or  repair  of  a  track  theretofore  built  and 
used,  although  repairs  in  paving  the  street 
had  required  the  temporary  removal  of  a 
portion  of  the  track.  Detroit  &*  B.  Plank 
Road  Co.  V.  Detroit  Citizens'  St.  R.  Co.,  97 
Mich.  583.  56  N.  W.  Rep.  940. 

2.  Between  Rival  Companies. 

240.  Exclusive  franchise  or  use.— 

Where  a  city,  with  power  to  do  so,  has 
bound  itself  to  a  company  not  to  grant  a 
second  privilege  to  another  company  to  run 
cars  on  the  same  street,  but  a  second  com- 
pany is  subsequently  chartered  with  the  right 
to  run  cars  on  the  same  street,  its  charter 
will  be  deemed  subject  to  the  obligation  of 
the  city  to  the  first  company,  and  the  second 
company  can  only  obtain  the  right  to  use 
the  track  of  the  first  company  by  contract 
with  the  city.  Louisville  City  R.  Co.  v.  Cf«- 
tral  Pass.  R.  Co.,  36  Am.  &*  Eng,  R.  Cas. 
463,  87  Ky.  223,  8  S.  W.  Rep.  329. 

An  ordinance  that  authorizes  a  street- 
railway  company  to  use  the  tracks  of  an- 
other company  on  a  certain  avenue,  but 
which  declares  that  nothing  therein  shall 
be  construed  to  grant  any  right  or  privi- 
lege to  lay  any  additional  tracks  on  a 
bridge  erected  and  maintained  for  public 
use  by  the  city,  and  forming  a  part  of  said 
avenue,  is  not  intended  to  secure  to  the 
company  whose  tracks  are  already  on  the 
bridge  a  monopoly  of  the  right  of  way  over 
the  bridge,  but  simply  to  avoid  incumbering 
the  bridge  with  unnecessary  tracks ;  and 
from  the  fact  that  the  bridge  is  to  be  torn 
down  and  reconstructed,  and  a  temporary 
bridge  has  been  erected  by  the  city  to 
accommodate  the  public  until  the  new 
bridge  is  completed,  and  in  the  ordinance 
providing  for  the  erection  of  such  temporary 
bridge  it  is  declared  to  be  lawful  for  any 
railway  company  authorized  to  lay  and 
maintain  tracks  on  the  old  bridge  to  lay 
and  maintain  its  tracks  on  the  tem[)orary 
bridge,  it  does  not  follow  that  the  company 
whose  tracks  were  on  the  old  bridge,  and 
to  whom  license  was  given  by  the  ordinance 
to  lay  tracks  on  the  temporary  bridge,  has 
an  exclusive  right  of  trackway  over  said 
bridge,  it  being  within  the  power  of  the 


mayor  and  city  council  to  allow  any  other 
street-railway  company  to  place  its  tracks 
upon  such  temporary  bridge.  North  Balti- 
more  Pass.  R.  Co.  v.  Mayor,  etc.,  of  Balti- 
more, 75  Md.  247,  23  Atl.  Rep.  i^jo. 

The  control  of  the  streets  and  highways 
of  the  city  must  be  retained  in  the  power 
of  the  municipality,  and  cannot  be  granted 
away  or  surrendered  to  other  agencies  not 
authorized  by  the  state  to  assume  control 
of  the  streets  or  highways  of  the  city. 
North  Baltimore  Pass.  R.  Co.  v.  Mayor,  etc., 
of  Baltimore,  75  Md.  247,  23  Atl.  Rep.  470. 

Under  a  grant  or  license  of  the  munici- 
pality to  a  company  to  use  the  streets  for 
its  tracks,  it  is  only  that  portion  of  the 
street  that  is  actually  occupied  that  can  be 
claimed  to  be  exclusive  of  other  tracks  1  and 
other  parts  of  the  street  may  be  granted  to 
a  competing  line  or  lines.  North  Baltimore 
Pass.  R.  Co.  V.  Mayor,  etc.,  of  Baltimore,  75 
Md.  247,  23  Atl.  Rep.  470. 

Plaintiff  corporation  obtained  from  a  city 
council  the  right  to  construct  its  road 
through  certain  streets,  upon  certain  terms 
and  conditions,  and  such  other  terms 
and  conditions  as  the  council  might  there- 
after prescribe.  Among  the  conditions  ex- 
pressed was  one  that  a  certain  other  com- 
pany should  be  allowed  to  run  its  cars  upon 
a  portion  of  plaintiff's  road,  upon  the  pay- 
ment of  such  reasonable  compensation  as 
the  council  should  prescribe,  if  the  parties 
were  unable  to  agree.  Afterwards  a  third 
company  was  organized,  to  which  was 
granted  a  right  of  way  upon  a  portion  ol 
the  route  already  occupied  by  plaintiff,  and 
upon  Its  track,  upon  the  payment  to  plain- 
tiff of  a  reasonable  compensation.  These 
companies  failing  to  agree  upon  the  amount 
to  be  paid,  the  council  prescribed  a  certain 
sum,  which  was  tendered,  but  refused. 
Thereupon  plaintiff  brought  suit  against  the 
third  company  to  enjoin  it  from  using  any 
portion  of  its  track,  alleging,  among  other 
things,  that  the  compensation  so  prescribed 
and  tendered  was  inadequate,  which  allega- 
tion was  negatived  by  defendant.  Held: 
(I)  that  plaintiff  did  not  acquire  an  exclusive 
right  to  use  the  route  upon  which  its  road 
was  constructed ;  (2)  that  the  property  of 
plaintiff  in  its  track  was  subject  to  be  taken 
for  a  like  public  use  in  common,  upon  com- 
pensation being  first  made;  (3)  that  the 
council  stipulated  for  the  right,  in  such 
case,  to  prescribe  a  reasonable  compensa- 
tion ;    (4)  that,   without   proof   that  the 


!■)'■ 


433 


STREET   RAILWAYS,  241-243. 


lip:; 


p 


amount  of  compensation  so  prescribed  and 
tendered  was  inadequate,  plaintiff  was  ikH 
entitled  to  an  injunction.  Kinsman  S/.  J\'. 
Lo.  V.  Broadway  &*  N,  St.  R.  Co.,  5  Am.  &* 
Eng.  R.  Cas.  327,  36  OAio  St.  239.— Ap- 
proved IN  Canal  &  C.  R.  Co.  v.  Orleans  R. 
Co.,  44  La.  Ann.  54 

241.  Joint  use  authorized  upon 
niakiug  compouHation.*— The  material 
in  place  is  the  private  property  of  the 
company  occupying  the  street,  and  in  tiie 
absence  of  any  agreement  it  must  be  expro- 
priated to  public  uses  like  any  other  private 
property.  Cana/  &*  C.  A'.  Co.  v.  Or/tans  K. 
Co.,  50  Am.  &*  Eng.  R.  Cas.  369,  44  La. 
Ann.  54, 10  So.  Rep.  389.— Approving  Kins- 
man St.  R.  Co.  V.  Broadway  &  N.  St.  R. 
Co.,  36  Ohio  St.  252  ;  Metropolitan  R.  Co. 
V.  Highland  St.  R.  Co.,  118  Mass.  291. 

A  company  desiring  to  use  tiie  roadbed 
and  material  in  place  of  another  company 
must  first  make  compensation.  But  v>.ere 
an  injunction  is  granted,  without  the  prayer 
for  compensation  before  using  the  track,  but 
a  prohibition  for  the  use  of  the  track  for 
any  and  all  cars,  it  will  be  dissolved.  Canal 
&*  C.  R.  Co.  v.  Crescent  City  R.  Co.,  50  Am. 
&*  Eng.  R.  Cas.  374,  44  La.  Ann.  485,  10  So. 
Rep.  888.— Following  Canal  &  C.  R.  Co. 
V.  Orleans  R.  Co.,  44  La.  Ann.  54. 

One  street-railway  company  has  no  right 
to  use  the  tracks  of  another,  without  author- 
ity from  the  legislature  or  an  agreement 
with  the  company  owning  the  tracks. 
Metropolitan  R.  Co.  v.  Quincy  R.  Co.,  12 
Allen  {Mass.)  262.  —  Distinguished  in 
Metropolitan  R.  Co.  v.  Highland  St.  R. 
Co.,  118  Mass.  290. 

Where  the  legislature  has  reserved  the 
power  to  alter,  amend,  or  repeal  a  street- 
car charier,  it  may  lawfully,  whenever  it 
deems  it  necessary  for  the  better  accom- 
modation of  the  public,  authorize  another 
company  to  lay  a  similar  track  through 
the  same  streets,  or  to  use  the  track  of 
the  first  company,  upon  making  compensa- 
tion for  the  use  and  wear  of  the  track, 
without  making  any  compensation  for  the 
diminution  of  its  profits  or  of  the  value  of 
its  franchise.  Metropolitan  R.  Co.  v.  High- 
land St.  R.  Co.,  118  Mass.  290. 

A  company  authorized  to  operate  a  rail- 
way on  the  streets  of  a  city  holds  the 
streets  for  the  higher  use  of  the  public,  and 

*  Right  of  one  street-railway  company  to  use 
track  uf  another,  see  note,  35  Am.  St.  Rep.  477. 


if  public  necessity  requires  it,  the  legislature 
mayauthoiize  another  company  to  use  its 
tracks  upon  making  just  compensation.  St, 
Louis  R.  Co.  V.  Southern  R.  Co.,  105  Mo. 
S77,  IS  5.  W.  Rep.  1013. 

The  iron  rails  laid  by  a  company  in  a 
public  street  are  the  property  of  the  com- 
pany, and  another  company,  authorized  to 
lay  a  railroad  of  like  character  in  the  same 
direction  for  part  of  the  route,  has  no  right 
to  run  cars  on  such  rails  without  compensa- 
tion. Jersey  City  &*  B.  R.  Co.  v.  Jersey 
City  &-  H.  Horse  R.  Co.,  20  N,  J.  Eg.  61 ; 
reversed  in  21  N.J.  Eq.  550. — Followed  in 
Market  St.  Pass.  R.  Co.  v.  Union  Pass.  R. 
Co..  10  Phila.  (Pa.)  43. 

242.  Secoud  company  cannot  con- 
demn.—  One  horse-railway  company  has 
no  right,  by  proceedings  of  condemnation, 
to  take  for  its  joint  use  a  part  of  a  pre- 
viously constructed  railway  of  another  com- 
pany in  successful  operation,  and  if  such  an 
attempt  is  made  a  court  of  equity  will  enjoin 
the  same.  Central  City  Horse  R.  Co.  v.  Ft. 
Clark  Horse  R.  Co.,  81  ///.  523.— DISTIN- 
GUISHED IN  Metropolitan  City  R.  Co.  v. 
Chicago  W.  D.  R.  Co.,  87  III.  317;  Illinois 
C.  R.  Co.  V.  Chicago,  138  III.  453;  East  St. 
Louis  Connecting  R.  Co.  v.  East  St.  Louis 
Union  R.  Co.,  108  III.  265. 

243.  Joint  use  limited  in  Cali- 
fornia.—Under  Cal.  Civ.  Code,  §  499,  pro- 
viding that  "  two  corporations  may  be  per- 
mitted to  use  the  same  street,  each  paying 
an  equal  portion  for  the  construction  of  the 
track ;  but  in  no  case  must  two  railroad 
corporations  occupy  and  use  the  same  street 
or  track  for  a  distance  of  more  than  five 
blocks,"  the  same  street  cannot  be  occupied 
by  two  railroads,  whether  they  belong  to 
corporations  or  private  persons,  for  a  greater 
distance  than  five  blocks.  People  v.  Rich, 
54  Oil.  74. 

Under  the  above  statute  an  attempt  to 
grant  to  a  second  company  a  right  of  way 
over  the  same  street  for  a  distance  of 
more  than  five  blocks,  and  without  paying 
one  half  of  the  cost  of  constructing  the 
track,  is  absolutely  void.  Omnibus  R.  Co. 
V.  Baldwin,  57  Cal.  160. 

The  above  statute  is  controlling  as  to  the 
amount  of  compensation  to  be  given,  and 
must  prevail,  in  reference  to  street  railroads, 
over  the  general  provisions  of  the  Code  re- 
specting the  assessment  of  compensation 
and  damages  in  case  of  the  intersection  of 
one  railroad  by  another.     Pacific  R.  Co.  V. 


STRliET    RAILWAYS,  244-247. 


488 


Wade,  50  Am.  &*  Eng.  A'.  Las.  362.  91   Cal. 
449,  27  Pac.  Rep.  768, 

244.  Joint  use  not  prohibited  by 
statute  ttgtiiUHt  leuNiiii;.  —  Tlie  proviso 
contained  in  the  New  York  Laws  of  1884, 
ch.  252,  §  1 5,  to  the  effect  that  the  section 
shall  not  be  construed  to  authorize  com- 
panies organized  thereunder  to  lease  their 
rights  or  franchises  to  any  other  company 
owning  and  operating  a  parallel  ruad,  is 
not  intended  to  preclude  such  companies 
from  making  traffic  contracts  for  the  partial 
use  of  their  respective  roads  beyond  the 
line  of  parallelism.  People  v.  O'Brien,  36 
Am.  &*  Etig.  R.  Cas.  78.  ni  A'.  K.  1.  18  A^. 
E.  Rep.  692,  19  A',  y.  S.  R.  173;  reversing 
10  A^.  Y.  S.  R.  596,  45  Hun  519. 

245.  Wlieu  determined  by  statute. 
— The  fact  that  a  company  is  chartered 
"  subject  to  all  the  duties,  restrictions,  and 
liabilities  set  forth  in  all  general  laws  which 
are,  or  may  be  hereafter,  in  force,  applicable 
to  street  railway  corporations;  provided, 
however,  that  said  city  or  town  is  hereby 
authorized  or  empowered  to  contract  with 
said  railway  corporation  concerning  the 
construction,  maintenance,  and  operation  of 
said  railway,  upon  such  terms  as  it  may 
agree  with  said  railway  corporation,  any 
laws  now  existing  to  the  c».<trary  notwith- 
standing," does  not  authorize  the  city  to 
contract  so  as  to  exclude  another  company 
from  the  use  of  the  tracks,  under  Mass.  St. 
of  1874,  ch.  29.  New  Bedford  &•  F.  H.  St. 
R.  Co.  V.  Acushnet  St.  R.  Co.,  143  Mass.  200, 
9  A'.  E.  Rep.  536. 

Where  the  track  of  a  company  extends 
from  a  city  into  an  adjoining  town,  and  the 
city  grants  a  license  to  another  company  to 
use  a  portion  of  the  tracks  lying  within  the 
city,  it  is  not  necessary  to  make  application 
to  the  selectmen  of  the  town  to  use  the 
portion  beyond  the  city.  The  manner  of 
acquiring  such  use  is  regulated  by  Mass. 
Pub.  St.  ch.  1 13,  §  49.  New  Bedford  &»  F. 
H.  St.  R.  Co.  V.  Acushnet  St.  R.  Co.,  143 
Mass.  200,  9  N.  E.  Rep.  536. 

246.  When  determined  by  ordi- 
nance.  —  After  a  street  railway  had  been 
chartered,  a  city  charter  was  altered  so  as 
to  allow  one  street-car  company  to  run  its 
cars  upon  the  track  of  another  by  paying 
compensation,  but  a  proper  ordinance  by 
the  city  was  necessary  to  carry  this  pro- 
vision  into  effect.  The  company  afterwards 
accepted  additional  privileges  or  franchises 
from  the  city,  agreeing  at  the  same  time  to 

7  D.  R.  D.— a8 


conform  to  any  city  ordinance  then  existing 
or  which  might  thereafter  be  passed.  He/d, 
that  the  company  thereby  became  subject 
to  an  ordinance  subsequently  passed,  re* 
quiring  it  to  allow  another  company  to  use 
its  track  upon  making  just  compensation. 
St.  Louis  R.  Co.  V.  Southern  R.  Co..  105 
Mo.  577,  15  S.  IV.  Rep.  1013. —  Distin- 
guishing Covington  St.  K.  Co.  v.  Coving- 
ton &  C.  St.  R.  Co.,  19  Am.  Law  Reg.  (N.  S.) 
765.  Quoting  Kinsman  St.  R.  Co.  v. 
Broadway  &  N.  St.  R.  Co.,  36  Ohio  St.  239; 
State  ex  rel.  v.  Southern  R.  Co.,  100  Mo.  61, 
13  S.  W.  Rep.  398. 

Such  acceptance  creates  a  contract  be- 
tween the  city  and  the  company,  and  is 
binding  on  the  latter.  Nor  is  it  necessary 
in  order  for  such  right  of  user  to  be  acquired 
by  another  company  that  it  resort  to  con- 
demnation proceedings.  Union  Depot  R, 
Co.  V.  Southern  R.  Co.,  50  Am.  6*  Eng.  R. 
Cas.  354,  105  Mo.  562,  16  S.  IV.  Rep.  920. — 
Followed  in  St.  Louis  R.  Co.  v.  Southern 
R.  Co.,  105  Mo.  577;  Union  Depot  R.  Co. 
V.  Southern  R.  Co.,  105  Mo.  602. 

Where  a  company  has  an  undoubted  legal 
right  to  lay  its  tracks  upon  certain  streets 
in  Philadelphia,  it  is  the  duty  of  the  board 
of  surveyors  to  approve  of  some  plan  by 
which  that  right  can  be  enjoyed.  The 
board  is  not  at  liberty  to  compel  the  adop- 
tion of  a  plan  of  its  own  which  involves  the 
necessity  of  using  the  tracks  of  another 
company  already  laid  upon  the  street,  when 
the  consent  of  the  latter  does  not  appear  to 
have  been  obtained,  or  when  such  user 
would  be  attended  with  inconvenience  and 
delay  in  the  running  of  the  cars.  Com.  ex 
rel.  V.  Smedley,  17  Phila.  {Pa.)  18. 

247.  In  city  of  Now  Orleiins.— The 
city,  by  delegated  power  from  the  legisla- 
ture, has  the  paramount  control  and  regu- 
lation of  its  streets,  and  can  grant  the  use 
of  a  street  railway  already  constructed  to 
another  authorized  road ;  and  the  council 
cannot  grant  the  exclusive  use  to  one  com- 
pany so  as  to  deprive  a  succeeding  council 
of  the  power  of  regulating  the  use  as  it  may 
deem  best.  Canal  <S-  C.  St.  R.  Co.  v.  Cres- 
cent City  R.  Co.,  41  La.  Ann.  561,  6  So.  Rep. 

849. 

A  company  which  is  authorized  by  the 
city  to  enter  upon  the  tracks  of  another, 
must,  before  doing  so,  make  compensation 
to  that  company.  Canal  &*  C.  R.  Co.  v. 
Orleans  R.  Co.,  50  Am.  &*  Eng.  7\\  Cas.  369, 
44  La.  Ann.  54, 10  So.  Rep.  389.— Followed 


434 


STREET   RAILWAYS,  248,  249. 


1) 


-;■; : 


■■>'. 
■A' 


il 


I'.il- 


)|i! 


IN  Canal  &  C.  R.  Co.  v.  Crescent  City  R. 
Co.,  44  La.  Ann.  485. 

There  is  no  limitation  in  the  ordinances 
of  the  city  which  prevents  street-railway 
companie.s  from  contracting  with  reference 
to  the  amount  due  for  the  use  of  tracks. 
Canal  &*  C.  li.  Co.  v.  Orleans  A'.  Co.,  50  Am. 
&»  Eng.  R,  Cas.  369,  44  La.  Ann,  54,  10  So. 
Rtp.  389. 

The  city  government  has  the  right  to 
grant  the  privilege  of  the  use  of  a  part  of 
the  tracks  of  a  street  railway  to  anothercom- 
pany.  It  can  continue  the  use  of  a  different 
car,  propelled  by  a  di.Terent  motor  than  the 
one  in  use  on  the  track.  Canal  Sf  C.  A*. 
Co.  v.  Crescent  City  R.  Co.,  50  Am.  ^  Eng.  K. 
Cas,  374,  44  La,  Ann.  485,  10  So.  Rep.  888. 

Two  corporations  organized  under  the 
general  laws  of  the  state,  each  holding  as- 
signable street-railway  franchises,  entered 
into  a  contract  (each  acting  for  itself,  its 
successors,  and  assigns)  by  which  the  first 
agreed  to  pay  to  the  second,  as  a  considera- 
tion for  authorizing  it  to  run  its  cars  over  its 
track,  four  cents  per  mile  for  each  and  every 
mile  traveled  by  each  and  every  car  run  over 
its  tracks,  said  agreement  to  last  during  the 
term  of  the  charters  granted  to  the  said  re- 
spective corporations,  or  of  any  extension  of 
said  charters ;  provided  that,  in  case  the  first 
company  should  cease  to  use  the  privileges 
granted  to  it  in  the  contract,  then  and  in 
that  case  the  agreement  should  be  ended. 
Held:  (i)  that  where  the  first  company  is  in 
undisturbed  possession  of  the  right,  exercis- 
ing and  enjoying  it  every  day,  it  cannot  re- 
lease itself  from  its  contract  obligations  on 
the  claim  that  the  agreement  was  ultra  vires 
of  the  powers  of  its  officers ;  if  there  be  any 
legal  objections  to  the  contract,  they  must 
be  set  up  under  other  conditions,  and  in  a 
different  manner;  (2)  where,  under  such 
a  contract,  the  second  company  conveys 
all  its  rights,  property,  and  franchises,  spe- 
cially including  therein  its  rights  under 
the  agreement  mentioned,  to  a  third  com- 
pany, which  assumes  all  the  obligations 
of  the  former  under  the  agreement,  there 
is  nothing  in  the  assignment  of  which  the 
first  company  can  complain ;  (3)  the  third 
company  having  been  organized  by  the 
stockholders  of  the  second  company,  and 
for  the  express  purpose  of  acquiring  all 
the  righu,  property,  and  franchises  of  the 
old  company,  and  assuming  all  its  obliga- 
tions, and  the  old  company  having  post- 
poned its  dissolution  until  after  such  trans- 


fer and  assumpsit  should  have  been  made, 
the  new  company,  for  the  purpose  of  the 
contract  declared  on  in  this  case,  is  merely 
the  old  company  reorganized  under  a  new 
name.  Canal  **  C.  R.  Co.  v.  St.  Charles  St. 
R,  Co.,  56  Am.  &*  Effg.  R.  Cas.  555,  44iL<i. 
Ann.  1069,  1 1  So.  Rep.  702. 

The  city  has  at  all  times  recognized  the 
right  of  the  Canal  &  C.  Street  R.  Co.  to  re- 
muneration for  the  use  of  its  tracks  by  other 
companies,  and  the  right  of  the  companies 
inter  se  to  fix  the  value  of  that  right,  and  the 
dealings  between  the  city  and  the  St.  Charles 
Street  R.  Co.  have  all  been  subordinated  to 
that  right.  Canal  &*  C.  R.  Co.  v.  St.  Charles 
St.  R.  Co.,  56  Am.  &*  Eng.  R.  Cas.  555,  44 
La.  Ann.  1069, 11  So.  Rep.  703. 

248.  lu  city  of  St.  LouIh.— St.  Louis 
city  charter,  art.  10,  §  6,  confers  upon  the 
city  the  power  to  make  rules  and  regula- 
tions for  determining  the  compensation  to 
be  paid  by  one  company  for  the  user  of 
another's  tracks.  Union  Depot  R.  Co.  v. 
Southern  R.  Co.,  50  Am.  6^  Eng.  R,  Cas. 
354,  los  Mo.  562, 16  5.  W.Rep.  920.— Quot- 
ing Joy  V.  St.  Louis,  138  U.  S.  i.— Fol- 
lowed IN  St.  Louis  R.  Co.  V.  Southern  R. 
Co.,  105  Mo.  577 ;  Union  R.  Co.  v.  South- 
ern R.  Co.,  105  Mo.  603. 

The  above  section  also  confers  the  power 
on  the  city  council  to  make  the  award  of 
the  commissioners  as  to  the  amount  of  com- 
pensation reviewable  by  the  circuit  court. 
Union  Depot  R,  Co.  v.  Southern  R.  Co.,  50 
Am.  &*  Eng.  R,  Cas.  354,  105  Mo.  562,  16 
.S.  W.  Rep.  920.— Followed  in  St.  Louis 
R.  Co.  V.  Southern  R.  Co.,  105  Mo.  577; 
Union  R.  Co.  v.  Southern  R.  Co.,  105  Mo. 
602. 

240.  In  city  of  Philadolpliia.—  Un- 
der their  respective  charters  the  complain- 
ants were  entitled,  in  reversing  the  direction 
of  the  running  of  their  cars,  to  connect  with 
the  defendants'  north  track  on  Columbia  av- 
enue and  run  westward  on  it  to  Ridge  av- 
enue ;  to  construct  and  build  a  separate  track 
on  the  south  side  of  Master  street,  to  be  oper- 
ated eastward:  and  to  remove  and  relay  the 
joint  track  in  use  upon  Master  street  to  and 
upon  the  north  side  of  said  street,  they  pay- 
ing the  costs  and  expenses  of  the  construc- 
tion and  connections.  Appeal  of  Union 
Pass.  R.  Co.,  2  Pennyp.  (Pa.)  434.— Distin- 
guishing North  Branch  Pass.  R.  Co.  v. 
Philadelphia  City  Pass.  R.  Co.,  38  Pa.  St.  361. 

The  fact  that  complainant  originally 
elected  to  run  its  cars  in  certain  directions 


STREET   RAILWAYS,  250-252. 


435 


le, 
J  the 
[rely 
}iew 

St. 
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the 

re- 

iher 

lilies 

the 

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rr/« 

44 


does  not,  at  the  suggestion  of  another  cor- 
poration, bar  it  from  diametrically  reversing 
the  order  of  running.  Appeal  of  Union 
Pass.  R.  Co.,  2  Ptnnyp.  (Pa.)  434. 

Nor  is  the  fact  that  complainant  did  not 
construct  its  branch  track  for  eleven  years 
after  the  date  of  its  charter  to  be  considered 
an  abandonment  by  non-user.  Appeal  of 
Union  Pass.  R.  Co.,  2  Penny  p.  (/'«.)  434. 

A  passenger-railway  company,  authorized 
by  its  charter  to  connect  with  the  tracks  of 
another  railway  company  on  a  street  of  the 
city,  before  making  such  connection  must 
have  the  terms  and  compensation  settled  by 
due  course  of  law.  Union  Pass.  R.  Co.  v. 
Continental  R.  Co.,  11  Phila.  (Pa.)  331. 

Such  new  railway  company  has  no  right 
to  straddle  the  old  road  if  by  so  doing  the 
business  of  that  road  is  impeded.  Union 
Pass.  R.  Co.  V.  Continental R.  Co.,  11  Phila. 
(Pa.)  321.— Followed  in  Thirteenth  &  F. 
St.  Pass.  R.  Co.  V.  Union  Pass.  R.  Co.,  15 
Phila.  275. 

250.  E^joiuluK  road  seeking  to 
croMS  or  parallel  track. —  One  street- 
railway  company  cannot  enjoin  another 
from  crossing  its  track,  where  the  passage 
of  its  cars  is  not  thereby  impeded,  and  no 
injury  will  be  done  to  its  business ;  and  such 
a  crossing  is  not  an  appropriation  of  the 
property  of  the  former  for  the  use  of  the 
latter,  but  a  mere  mode  of  exercising  the 
public  right  of  transit  over  the  highway. 
Brooklyn  C.  &•/.  R.  Co.  v.  Brooklyn  City  R. 
Co.,  33  Barb.  (N.  Y.)  420. 

Plaintiff  company  sought  to  restrain  de- 
fendant company,  which  hud  secured  a  char- 
ter and  obtained  consent  of  the  city,  from 
laying  rails  on  a  certain  avenue,  on  the 
ground  that  the  acts  of  1869  and  1870  au- 
thorizing it  to  extend  its  lines  on  any  street 
west  of  Tweqty-third  street  gave  it  vested 
and  exclusive  rights  in  such  avenue,  it  being 
W£st  of  Twenty-third  street.  Held.that  the 
right  of  plaintiff  to  raise  questions  is  doubt- 
ful, as  its  use  of  the  street  is  not  interfered 
with,  it  never  having  exercised  any  right 
conferred  by  the  legislature.  Philadelphia 
&*  G.  F.  R.  Co.  V.  Catharine  &»  B.  St.  R.  Co., 
20  Phila.  (Pa.)  233. 

251.  Extent  of  compeiisatioii  al- 
lowed. — An  exclusive  right  to  run  street- 
cars on  a  certain  street  only  extends  to  the 
use  of  the  track ;  and  where  a  second  com- 
pany is  chartered  to  run  cars  on  the  same 
street  and  track,  it  is  only  required  to  make 
compensation  to  the  first  company  for  the 


use  of  the  track,  and  not  for  the  value  of 
the  franchise.  Louisville  City  R.  Co.  v. 
Central  Pass.  R.  Co.,  36  Am.  &*  Eng.  R.  Cas. 
463,  87  A>.  223,  8  S.  IV.  Rep.  329. 

Where  a  contract  between  a  city  and  a 
street-railway  company,  relating  to  the  com- 
pensation that  the  company  shall  make  for 
the  use  of  the  streets,  shall  be  determined 
by  arbitrators"  upon  an  equitable  considera- 
tion," in  the  event  the  parties  cannot  agree, 
and  a  second  company  desires  to  use  the 
portion  of  the  street,  and  the  matter  is  re- 
ferred to  arbitrators,  the  compensation  may 
not  be  confined  merely  to  the  value  of  the 
use  of  the  rails  and  ties,  but  may  have  some 
reference  to  the  profits  resulting  from  the 
franchise.  Louisville  City  R.  Co.  v.  Central 
Pass.  R.  Co.,  36  Am.  &•  Eng.  R.  Cas.  463,  87 
Ky.  223,  8  S.  W.  Rep.  329. 

252.  Detcriiiiiiini;  compensation 
under  MaMsaeliuscttti  statutes.  —  In 
determining  the  compensation  for  the  joint 
use  of  a  track  by  two  companies,  under 
Mass.  Act  of  1864,  ch.  229,  the  commission- 
ers may  prescribe  a  rate  of  compensation 
founded  upon  the  amount  of  business  that 
the  second  company  does  over  the  tracks  of 
the  first,  and  may  require  it  so  to  keep  its 
accounts  as  to  show  the  amount  of  business, 
and  to  keep  them  open  for  inspection. 
Metropolitan  R.  Co.  v.  Quincy  R.  Co.,  12 
Allen  (Mass.)  262. — Following  Boston  & 
W.  R.  Corp.  V.  Western  R.  Corp.,  14  Gray 
(Mass.)  253 ;  Lexington  &  W.  C.  R.  Co.  v. 
Fitchburg  R.  Co.,  14  Gray  266. 

It  is  not  necessary  to  the  validity  of  the 
award  of  commissioners  under  the  above 
statute,  to  estimate  the  rate  of  compensation 
due  from  one  street  railway  to  another  for 
using  its  track  by  authority  of  law,  to  re- 
quire the  corporation  whose  tracks  are  so 
used  to  keep  the  same  in  repair,  that  being 
a  requirement  of  the  statute.  Metropolitan 
R.  Co.  v.  Quincy  R.  Co.,  iz  Allen  (Mass.)  262. 

An  award  of  commissioners  appointed 
under  Mass.  St.  of  1864,  ch.  229,  §  29,  to 
revise  a  previous  award  of  commissioners 
determining  the  compensation  to  be  paid  by 
one  street-railway  company  for  using  the 
tracks  of  another,  does  not  take  efTect  until 
returned  to  and  approved  by  the  court ;  and 
until  then  the  former  award  remains  in 
force.  Metropolitan  R.  Co.  v.  Broadway  R. 
Co.,  99  Mass.  238. 

Mass.  Act  of  1871,  ch.  238,  §§  38,  39,  vests 
a  large  discrimination  in  the  commissioners 
in  determining  the  rate  of  compensation  to 


436 


STREET   RAILWAYS,  203-2S5. 


it 


.I'll; 


be  paid  by  one  street«rail  way  company  for  the 
use  of  the  tracks  of  another ;  and  it  is  within 
their  discretion  to  estubiisli  rules  regulating 
the  modes  of  apportioning  expenses  and  esti> 
mating  compensation  between  the  compa- 
nies; and  where  no  question  of  law  is  in- 
volved, no  exception  lies.  Mttropoliian  R. 
Co.  V.  Highland  St,  ti.  Co.,  ii&  Mass,  290,  9 
Am.  Ky.  Rtp.  285. 

The  rnilroad  commissioners,  in  determine 
hig,  under  Mass.  Pub.  St.  cli.  113,  §§  50, 
ji,  the  rate  of  compensation  to  be  paid  by 
one  company  for  the  use  uf  tiie  tracks  of 
another  company,  adopted  as  an  element 
the  interest  on  the  cost  of  construction  uf 
the  latter  company's  railroad,  and  included 
in  the  cost  of  such  construction  a  sum  which 
the  latter  company  paid  to  a  bridge  corpora- 
tion, over  whose  bridge  its  tracks  were  laid, 
"  in  full  compensation  or  toll  "  for  the  right 
of  using  the  bridge.  The  bridge  was  made 
a  free  bridge  before  the  tracks  upon  it  were 
used  by  the  company  required  tu  make  com- 
pensation. Held,  that,  whether  the  sum  paid 
to  the  bridge  corporation  coidd  legally  be 
regarded  as  part  of  the  cost  of  construction 
of  the  road  or  not,  the  company  required  to 
make  compensation  showed  no  ground  of 
objection  to  the  acceptance  of  the  award. 
Cambridge  R,  Co.  v.  Charles  River  St.  R.  Co., 
23  Am.  &*  Eng.  R.  Cas.  62,  139  Mass.  454,  i 
N.  E.  Rep.  925. 

253.  Wlieii  court  may  dotcriiiiiio 
compenHation.— A  court  wliich,  through 
its  receiver,  has  the  custody  and  control  of 
an  insolvent  company's  property  has  the 
power  to  determine  what  is  the  amount  of 
one  half  of  the  cost  of  the  constructiou  of 
the  tracks  and  ap])urtenances  which  would 
be  occasioned  by  its  track  being  intersected 
and  used  by  another  conipany.  Pacific  R. 
Co.  v.  Wade,  50  Am.  &•  Eng.  R,  Cas.  362,  91 
Cal.  449,  27  Pac.  Rep.  768. 

There  is  no  occasion  to  exercise  the  right 
of  eminent  domain  to  determine  the  amount 
of  such  cost,  9nd  there  is  no  private  prop- 
erty to  be  taken  for  public  use.  The  com- 
pany has  no  proprietary  interest  in  the 
street,  and  no  exclusive  right  to  its  use ; 
and  its  franchise  having  been  taken  with  the 
understanding  that  another  company  might 
be  authorized  to  use  the  track  jointly  with 
itself  as  fully  as  if  that  condition  had  been 
expressly  stated  in  the  grant,  it  is  estopped 
from  claiming  that  the  taking  is  without  its 
consent,  and  must  be  made  under  the  right 
of  eminent  domain.    Pacific  R.  Co.  v.  IVatU, 


50  Am,  &*  Eng.  R.  Cas.  363,  91  Cat,  449.  tf 
Pac.  Rep.  768. 

204.  FixliiKiiiodo  ufcompeuNution 
by  ordiManvu.  —  When  city  ordinances 
provide  the  mode  of  compensation,  and  the 
two  corporations  arc  within  the  limits  of  the 
same  franchise,  the  ordinances  will  control 
the  mode  to  be  pursued  in  reference  to  fix- 
ing the  compensation,  as  the  corporations 
accept  their  franchises  with  reference  to 
said  ordinances.  Canal  &*  C.  R.  Co.  v.  Or- 
leans R,  Co.,  50  Am.  &*  Eng.  R.  Cas.  369, 44 
La.  Ann.  54,  10  So.  Rep.  389. 

Where  a  city,  under  a  general  statute  au- 
thorizing it  to  pass  ordinances  for  the  regu- 
lation of  street  railways,  provides  a  method 
of  ascertaining  compensation  where  one 
company  uses  the  tracks  of  another,  the 
company  may,  if  not  satisfied  with  the  com- 
pensation allowed,  appeal  to  the  circuit 
court,  or  it  may  apply  to  the  circuit  court  in 
the  first  instance  under  its  general  jurisdic- 
tion. St,  Louis  R.  Co.  V.  Southern  R.  Co., 
105  Mo.  577,  155.  W.  Rep.  1013. 

A  general  statute  or  ordinance  without 
negative  words  will  not  repeal  the  particu- 
lar provisions  of  a  former  statute  or  ordi- 
nance, unless  the  two  are  clearly  inconsist- 
ent. Six  ordinances  of  a  city  allowed  six 
horse-railroad  companies  to  use  the  streets 
of  the  city,  two  of  the  ordinances  requiring 
payments  therefor  from  two  of  the  compa- 
nies. The  six  companies  afterwards  con- 
solidated. Three  ordinances  allowed  three 
steam-railroad  companies  to  use  the  streets 
of  the  city,  one  of  the  ordinances  requiring 
payments  therefor  from  one  of  the  compa- 
nies. Subsequently  the  ordinances  of  the 
city  were  revised,  and  in  the  revision  the 
chapter  on  railroads  contained  general  rules 
and  regulations,  continued  permission  to 
the  use  of  the  streets,  and  prescribed  certain 
conditions,  mostly  taken  from  the  original 
ordinances,  but  said  nothing  about  any  pay- 
ments. The  revising  ordinance  contained 
a  list  of  ordinances  repealed,  among  which 
those  requiring  payments  were  not  placed. 
Held,  that  the  special  ordinances  requiring 
payments  were  not  repealed  by  the  revising 
ordinance.  Providence  v.  Union  R.  Co,  13 
^.  /■  47.1 

▼n.  BEOniATlOH  BT  PQBUC  AVTHORITT. 
I.  By  Statute. 

266.  Statute  to  regulate  farcH 
does  uot  apply  to  street  railnvayn.— 

New  York  Act  of  March  27,  1857,  entitled 


STREET   RAILWAYS,  2A0-250. 


487 


)n 

tci 
fhe 
[he 
Irol 
lix- 
bns 

to 

144 


"An  act  to  prevent  extortion  by  railroad 
companies,"  does  not  apply  to  city  or  street 
railroad  companies.  The  object  of  the 
statute  was  to  prevent  companies  from  re- 
ceiving more  than  a  fixed  rate  of  fare  per 
mile,  and  it  does  not  apply  to  street-cnr 
companies,  where  a  uniform  fare  is  charged, 
without  reference  to  the  distance.  Monty- 
penny  v.  Sixth  Ave.  R.  Co.,  7  Kobt.  (IV. 
Y.)  328,  4  Abb.  Pr.  N.  S.  357.  35  //ow.  Pr. 
452.— QuoTiNG  Chase  v.  New  York  C.  R. 
Co..  26  N.  Y.  526. 

250.  CoiiHtitiitionnlity  of  Ponn- 
sylvaniu  act  an  to  motive  power.— 
The  act  of  May  8,  1876,  providing  for  use 
under  certain  conditions  of  power  other 
than  animal  by  street  railways,  in  cities  of 
the  first  class,  is  unconstitutional,  as  violat- 
ing Pa.  Const,  art.  3,  §  7,  which  forbids  the 
passage  of  any  local  or  special  law  creating 
corporations,  or  amending,  renewing,  or  ex- 
tending the  charters  thereof,  IVatJtin  v. 
West  Phila.  Pass.  K.  Co.,  i  Pa.  Dist.  463. 

257.  Kiglit  to  iiicrenNC  fare  after 
iHHuc  of  paper  currency.  —  Where  a 
stre  -rar  company  is  chartered  at  a  time 
when  specie  is  the  lawful  currency,  with  the 
right  to  charge  a  five-cent  fare,  and  subse- 
quently the  general  government  issues 
paper  currency,  which  is  depreciiited,  the 
company  is  justified  in  charging  more  than 
five  cents.  Moneypenny  v.  Sixth  Ave.  R, 
Co.,  7  Kobt.  (N.  Y.)  328, 4  Abb.  Pr.  N.  S.  357, 
35  How.  Pr.  452. 

The  Act  of  Congress  of  1865,  ch.  75, 
amending  the  Revenue  Act  of  1864,  and, 
among  other  things,  imposing  a  tax  on 
street  railways  according  to  the  number  of 
passengers  carried,  and  allowing  the  compa- 
nies to  add  one  cent  to  each  fare,  is  consti- 
tutional. Moneypenny  v.  Sixth  Ave.  R.  Co., 
7  Robl.  (r  Y.)  328,  4  Abb.  Pr.  N.  S.  357,  35 
How.  Pt    452. 

The  Act  of  Congress  of  1864,  relating  to 
revenue,  imposed  a  tax  of  two  and  a  half 
cents  upon  gross  receipts  of  all  railroad 
companies,  and  gave  to  the  companies  the 
right  t  add  it  to  their  fares.  This  tax 
amounted  to  one  eighth  of  one  cent  on 
each  passenger  carried  on  defendant's  road, 
but  one  cent  was  added  to  each  fare.  Held, 
that  the  statute  did  not  authorize  the  addi- 
tion of  more  than  the  amount  of  the  tax, 
and  as  there  was  no  coin  in  which  less  than 
one  cent  could  be  collected,  the  company 
must  lose  the  amount  of  the  tax,  or  de- 
Vise  some    other   means  of    collecting   it. 


Black  v.  Sixth  Ave.  R.  Co.,  r  Daly  {N.  Y.) 
536. 

208.      Manner     of     conHtnictinff 
traclcti  acroHH  HtreetH  and  liifcliwayH. 

—Me.  Act  of  1853,  ch.  41,  §  3  (Rev.  St. 
1857,  ch.  51,  §  I  J),  relating  to  the  construc- 
tion of  railroads  across  highways  and  streets, 
is  remedial,  and  applies  to  railroad  corpora- 
tions previously,  as  well  as  those  subse- 
quently, chartered  unless  they  had,  at  the 
time  of  the  passage  of  the  act,  completed 
or  actually  entered  upon  the  construction 
of  their  roads.  Veanie  v.  Mayo,  45  Me.  560. 
That  act  was  designed  to  afford  greater 
security  to  the  public  having  occasion  to  use 
highways  and  streets  across  which  railroads  . 
were  to  be  made ;  and  it  was  but  the  exer- 
cise of  that  police  power  which  is  always 
necessarily  retained  by  the  people,  in  their 
sovereign  capacity,  for  the  public  safety,  and 
of  which  they  cannot  be  divested  by  prior 
legislative  enactments  nor  by  chartered  im- 
munities,    Veatie  v.  Mayo,  45  Me.  s6o. 

2.  By  Ordinance. 

259.  Generally.'*'- A  street  railway  is 
subject  to  proper  police  regulations  and 
equitable  control.  Clinton  v.  Clinton  &^  L. 
Horse R.  Co.,  37  /owa 61.— Following  Chi- 
cago. N.  &  S.  W.  R.  Co.  V.  Mayor,  etc.,  of 
Newton,  36  Iowa  299. 

A  provision  in  a  franchise  granted  by  a 
city  to  a  street-car  company  providing  how 
and  when  the  road  should  be  constructed, 
and  the  manner  in  which  it  should  be  main- 
tained, does  not  exempt  the  company  from 
reasonable  regulation  by  the  city  in  the 
operation  of  the  road.  Wyandotte  v.  Cor- 
r^an,  35  Kan.  21,  10  Pac.  Rep.  99. 

The  permission  given  to  a  street-railway 
company  to  use  a  street  is  in  subordination 
to  the  general  power  of  the  municipality 
over  its  streets.  Detroit  v.  Ft.  Wayne  <S-  E. 
R.  Co.,  50  Am.  &*  Eng.  R.  Cas.  447.  90  Mich. 
646,  51  A'.   W.  Rep.  688. 

A  city  council,  by  granting  to  a  company 
the  privilege  of  constructing  its  road  over 
its  street  and  public  squares,  does  not  lose 

*  Municipal  regulation  of  street  railways,  see 
notes,  26  Am.  &  Enr.  R.  Cas.  537  ;  13  /</.  637  ; 
56  Id.  412,  aislr. 

Police  power,  see  note,  50  Am.  &  Eno.  R. 
Cas.  437- 

Street  railways  subject  to  municipal  regula- 
tion, see  note,  25  Am.  St.  Rrp.  479. 

Scope  and  effect  of  municipal  ordinances  regu- 
lating street  railways,  see  iioie,  13  L.  R.  A.  74. 


!■'■' 


8^^ 


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Wim 


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^s 


438 


STREET   RAILWAYS,  260,  261. 


the  right  to  subject  the  company  to  reason- 
able regulations,  both  in  conduct  of  its 
business  and  in  the  location  of  <ts  track 
over  the  places  authorized  by  its  ordinance. 
Springfield  R.  Co.  v,  Springfield,  85  Mo.  674. 

The  legislature  has  full  power  to  author- 
ize the  laying  of  railways  in  the  streets  of  a 
city.  And  a  company  having  such  chartered 
authority,  and  having  complied  with  all  the 
conditions  of  its  charter,  is  entitled  to  op- 
erate its  railway  without  other  impediment 
or  restriction  on  the  part  of  the  city  than 
such  as  it  may  have  voluntarily  submitted 
itself  to,  or  as  may  arise  from  reasonable 
municipal  regulations.  Paterson  &*  P. 
Horse  R.  Co.  v.  Mayor,  etc.,  of  Paterson,  24 
N.J.  Eg.  158. 

A  grant  to  r*.  corporation  of  a  privilege  to 
carry  passeikgers  in  cars  over  the  streets  of  a 
city  does  not  necessarily  involve  exemption 
from  liability  to  municipal  regulation.  It  is 
neither  more  nor  less  than  a  natural  person 
possesses.  Frankford  &*  P.  Pass.  R.  Co.  v. 
Philadelphia,  58  Pa.  St.  119. 

A  company  having  accepted  its  charter 
with  the  knowledge  that  the  city  possesses 
the  most  ample  power  to  legislate  by  ordi- 
nance as  to  her  streets  and  highways,  to  make 
all  needed  regulations  for  the  most  conven- 
ient enjoyment  of  the  same,  it  is  bound  by 
an  implied  agreement  to  hold  its  special 
privileges  subject  to  a  proper  exercise  of 
this  power  by  the  councils  of  the  city. 
West  Phila.  Pass.  R.  Co.  v.  Philadelphia,  10 
Phila.  (Pa.)  70.— Reviewing  Com.  v.  Cen- 
tral Pass.  R.  Co.,  52  Pa.  St.  506. 

The  vital  question  in  every  such  case  is, 
Is  the  regulation  or  order  of  the  municipal 
autiiority  reasonable  and  necessary?  If  it 
is,  it  vill  be  maintained  ;  if  it  is  not,  it  will 
be  set  aside.  IVest  Phila.  Pass.  R.  Co.  v. 
Philadelphia,  10  Phila.  (Pa.)  70. 

260.  Reirulattiigr  fores.* —Under  the 
Constitution  and  laws  of  the  state  of  Louisi- 
ana the  city  of  New  Orleans  is  clothed  with 
full  and  exclusive  power  to  grant  franchises 
for  the  construction  and  operation  of  street 
railways,  by  steam  or  horse  power,  within 
her  corporate  limits,  including  the  right  of 
regulating  the  rates  of  fare  to  be  exacted 
by  said  corporations.  Forman  v.  New  Or- 
leans *•  C.  R.  Co.,  36  Am.  &•  Eng.  R.  Cas. 
38,  40  La.  Ann.  446,  4  So.  Rep.  246. 

*  Municipal  regulation  of  street  railways,  ln> 
eluding  right  to  regulate  fares  and  to  prohibit 
smoking,  etc.,  see  note,  19  L.  R.  A.  570. 


The  city's  discretion  in  regulating  such 
matters  is  ifot  subject  to  judicial  control  or 
interference,  unless  arbitrarily  or  unlawfully 
exercised.  Forman  v.  New  Orleans  &•  C.  R. 
Co.,  36  Am.  &*  Eng.  R.  Cas.  38, 40  La.  Ann. 
446, 4  So.  Rep.  246. 

A  provision  in  the  charter  of  a  company 
that  the  city  may  purchase  the  road  after 
ten  j'ears  does  not  give  to  either  the  city  or 
its  officers  such  an  interest  in  the  property 
as  to  enable  them  to  maintain  a  bill  in  equity 
to  restrain  the  company  from  raising  fares, 
in  violation  of  provisions  assented  to  by  the 
company,  in  the  absence  of  a  fraudulent 
intent,  though  it  may  have  the  effect  of  di- 
minishing the  value  of  the  property,  and 
perhaps  expose  the  franchise  to  forfeiture. 
Cambridge  v.  Cambridge  R.  Co.,  10  Allen 
{Mass.)  50. 

An  ordinance  provided  that  the  rate  of 
fare  on  a  horse  railway  should  not  exceed 
five  cents.  At  the  tiiqe  the  ordinance  was 
passed  defendant  company  was  operating  a 
single  line  with  cars  running  between  two 
points,  but  afterwards  it  constructed  diverge 
ing  lines,  over  which  separate  cars  were  run 
from  the  main  line  to  the  several  termini. 
Held,  that  the  ordinance  did  not  entitle  a 
passenger  to  ride  over  the  main  line  to  a 
point  of  divergence,  and  then  over  a  branch 
line  to  its  terminus,  for  one  fare.  Ellis  v. 
Milwaukee  City  R.  C  .  iy  Am.  &*  Eng.  R. 
Cas.  77,  67  Wis.  I3j,  jO  N.  W.  Rep.  218,  58 
Am.  Rep.  858. 

A  regulation  or  custom  of  a  company  by 
which  several  distinct  and  separate  lines  of 
cars  are  run  between  different  termini  is 
reasonable.  Ellis  v.  Milwaukee  City  R.  Co., 
27  Am.  6*  Eng.  R.  Cas.  77, 67  Wis.  135, 30  N. 
W.  Rep.  218,  58  Am.  Rep.  858. 

261. and  reqiilrlner  the  sale  of 

tickets  on  cars.*— The  rights  and  fran- 
chises of  a  company  are  not  destroyed  or 
unreasonably  impaired  by  an  ordinance  re- 
quiring it  to  sell  to  persons  applying  there- 
for, upon  all  of  its  cars,  tickets,  to  be  good 
for  transportation  over  its  entire  route  or 
any  portion  thereof,  traveling  continuously 
either  r*ay,  between  certain  hours,  at  the 
rate  of  eight  tickets  for  twenty-five  cents. 
Detroit  v.  Ft.  Wayne  &*  B.  /.  R.  Co.,  95 
Mich.  456,  54  N.  W.  Rep.  958.— Quoting 
Sternberg  v.  State,  36  Neb.  307,  54  N.  W. 


*  Right  of  cities  to  compel  sale  of  tickets  on 
street-cars,  see  56  Am.  S  Eng.  R.  Cas.  429, 
afistr. 


STREET   RAILWAYS,  262. 


439 


ch 
lor 

)iy 

\h. 

iy 
ter 
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fty 

es, 
Ihe 


Rep.  553.  Reviewing  South  Covington  & 
C.  St.  R.  Co.  V.  Berry,  93  Ky.  43.  18  S.  W. 
Rep.  103^. 

A  reservation  in  the  ordinance  under 
which  a  company  is  operating  of  the  right 
"  to  make  such  further  rules,  orders,  or  reg- 
ulations as  may  from  time  to  time  be  deemed 
necessary  to  protect  the  interest,  st^fety, 
welfare,  or  accommodation  of  the  public  " 
includes  the  right  to  enact  an  cruinance  re- 
quiring the  company,  for  the  accommoda- 
tion of  the  public,  to  keep  tickets  for  sale 
upon  its  cars  in  the  manner  stated.  Detroit 
V.  Ft.  Wayne  &*  B.  I.  R.  Co.,  95  Mick.  456, 
54  N.  W.  Rep.  958. 

It  is  competent  to  provide  for  the  enforce- 
ment of  such  an  ordinance  by  making  each 
day's  neglect  to  comply  with  its  provisions 
an  offense  punisiiable  by  fine,  and  to  pro- 
vide for  the  collection  of  such  fine  in  an  ac- 
tion at  law.  Detroit  v.  Ft.  Wayne  &*  B.  I. 
R.  Co.,  95  Mich.  456,  54  N.  W.  Rep.  958. 

A  street  railway  has  no  depots.  Its  stop- 
ping places  are  on  each  street  corner  and  it 
transacts  its  business  with  the  public  in  its 
cars,  and  its  tickets  should  be  kept  for  sale 
where  it  transacts  its  business  with  the 
public.  Sternberg  v.  State,  56  Am.  (S-  Eng. 
R.  Cas.  424,  36  Nei.  307,  54  A';  W.  Rep.  553. 

The  street  railway  of  the  city  of  Lincoln 
is  so  far  under  the  control  of  the  munici- 
pality that  the  latter  may  fix  the  rates  of 
fare  for  passage  over  said  railway,  and  may 
require  tickets,  six  for  twenty-five  cents,  to 
be  kept  for  sale  by  each  conductor.  Stern- 
berg V.  State,  56  Am.  &*  Eng.  R.  Cas.  424, 
36  Ned.  307.  54  N.  W.  Rep.  553. 

262.  Regulating  car  service.  — A 
city  granted  to  a  company  the  right  to  con- 
struct a  street  railway  on  certain  streets, 
under  an  ordiriance  requiring  a  stated  car 
service  to  be  furnished.  The  company 
thereafter  executed  and  delivered  to  defend- 
ant a  deed  by  its  terms  granting,  assigning, 
and  conveying  all  franchises,  powers,  priv- 
ileges, and  immunities  possessed  by  it  and 
its  line  of  road  in  plaintifl  city.  Defendant 
accepted  the  deed,  and  operated  the  line 
for  a  time.  HeM,  that  defendant  thereby 
assumed  the  performance  of  the  duties 
toward  the  public  which  before  rested  on 
the  grantor.  Potwin  Place  v.  Topeka  R. 
Co.,  s6  Am.  &*  Et^.  R.  Cas.  549,  51  Kan. 
609.  33  Pac.  Rep.  309. 

In  an  action  against  a  street-railway  com- 
pany to  recover  a  penalty  for  the  violation 
of  a  city  ordinance  requiring  it  to  run  cars 


at  certain  intervals  during  certain  hours  of 
the  night,  the  defendant  is  entitled  to  show 
that  as  to  it  such  ordinance  is  unreasonable, 
and  may  give  evidence  of  such  facts  as  will 
establish,  or  tend  to  establish,  that  the  public 
convenience  does  not  require  the  running 
of  its  cars  during  the  hours  specified.  The 
fact  that  the  evidence  offered  relates  to  a 
period  of  time  subsequent  to  the  date  when 
the  ordinance  went  into  effect  is  not  a 
ground  for  objection.  Nor  is  the  question 
of  the  reasonableness  of  such  ordinance 
controlled  by  considerations  c '  i!ie  expense 
to  the  defendant.  Mayor,  eh  of  N.  Y.  v. 
Dry  Dock,  E.  B.  &*  B.  R.  Co.,  50  Am.  &* 
Eng.  R.  Cas.  438,  133  N.  V.  104.  30  A':  E. 
Rep.  563,  44  N.  Y.  S.  R.g4;  reversing  39  Jf. 
Y.  S.  R.  105,  15  AT.  Y.  Supp.  297. 

The  charter  under  which  defendant  oper- 
ates its  street  railroad  (N.  Y.  Laws  of  1860^ 
ch.  512)  provides  that  said  railroad  "  shall 
be  run  as  often  as  the  convenience  of  pas- 
sengers may  require  and  shall  be  subject  to 
such  reasonable  rules  and  regulations  in 
respect  thereto  as  the  common  council  of 
the  city  of  New  York  may  from  time  to 
time  by  ordinance  prescribe."  The  common 
council  passed  an  ordinance  requiring  street 
surface  railroads  to  run  "  not  less  than  one 
car  every  twenty  minutes  between  the  hours 
of  twelve  midnight  and  six  o'clock  A.M., 
each  and  every  day,  both  ways,  for  the 
transportation  of  passengers."  Held,  in  an 
action  to  recover  the  penalty  prescribed  for 
a  violation  of  the  ordinance,  that  while  the 
authority  of  the  common  council  was  quali- 
fied as  to  defendant,  and  an  unreasonable 
regulation  would  not  be  obligatory  upon  it, 
the  presumption  was  in  favor  of  the  reason- 
ableness of  the  ordinance,  and  the  burden 
was  upon  it  to  show  the  contrary.  Mayor, 
etc. ,  of  N.  Y.  V.  Dry  Dock,  E.  B.  <S-  B.  R.  Co., 
50  Am.  &>  Eng.  R.  Cas.  438,  133  N.  Y.  104, 
30  A^.  E.  Hep.  563,  44  N.  Y.  S.R.  94 ;  revers- 
ing 39  N.  Y.  S.  R.  105,  15  A^.  K.  Supp.  297. 

Defendant  offered  evidence  to  the  effect 
that  it  ran  its  cars  for  a  time  in  obedience 
to  the  ordinance,  and  that  they  ran  empty, 
often  not  carrying  a  single  passenger.  "This 
evidence  was  objected  to  and  excluded. 
f/eld,  error ;  that  the  evidence  was  proper, 
as  bearing  upon  the  question  of  the  rea- 
sonableness of  the  ordinance.  Mayor,  etc., 
of  N.  Y.  V.  Dry  Dock,  E.  B.  6*  B.  R,  Co., 
50  Am.  6-  Eng.  R.  Cas.  438,  133  A';  Y.  104, 
30  A^.  E.  Rep.  563, 44  A^.  Y.  S.R.  9^;  revers- 
ing 39  A^.  y.  S.  R.  105.  15  K  Y.  Supp.  ^ff^ 


440 


STREET  RAILWAYS,  2A3-265. 


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m 


lit 


J;  i 


The  fact  that  defendant  operated  branches 
of  its  road  on  parallel  avenues,  and  that 
upon  one  branch  cars  were  run  in  com- 
pliance with  the  ordinance,  but  not  upon 
the  other,  was  not  a  sufficient  compliance 
with  the  ordinance.  Mayor,  etc.,  of  N.  Y. 
V.  Dry  Dock,  E.  B.  *•  B.  R.  Co.,  50  Am.  &• 
Eng.  h\  Cas.  438.  133  N.  V.  104.  30  A^.  E. 
Bef>.  563.  44  N.  Y.  S.  R.  94 ;  reversing  39 
;V.  Y.  S.  R.  105.  15  M  Y.  Suf>/>.  297. 

soil.  Re{;iilatin{;  motive  power 
and  Hpeed.*  —  A  city  no  doubt  has  the 
power,  for  the  protection  of  its  citizens  and 
their  property,  to  regulate  the  mode  of 
propelling  cars  within  its  limits,  to  say 
whether  steam  or  horse  power  shall  be  em- 
ployed, and  to  prescribe  the  rate  at  which 
they  may  move.  Donna  her  v.  State,  16 
Miss.  649. 

The  charter  of  a  city  conferred  power 
upon  the  common  council  to  pass  ordi- 
nances necessary  and  proper  for  the  good 
government,  order,  and  protection  of  per- 
sons and  property ;  also  power  to  prescribe 
the  manner  in  which  corporations  or  per- 
sons shall  exercise  any  privilege  granted  to 
them  in  the  use  of  any  street.  Held,  that 
under  either  of  these  powers  reasonable 
regulations  controlling  the  running  of  street- 
cars may  be  adopted.  State  v.  Trenton,  53 
A^.  /.  /..  132.  20  At  I.  Rep.  1076. 

2(14.  Construction  of  trnclc,  sen- 
erally. — A  municipal  corporation  declaring 
it  unlawful  for  any  railroad  or  street-car 
company  operating  its  road  within  the 
limits  of  the  corporation  to  permit  any 
part  of  its  track  "  to  remain  in  the  streets 
so  high  above  the  surface  thereof  as  to 
discommode  and  seriously  inconvenience 
public  travel  on  said  streets,  or  inter- 
fere with  the  free  and  easy  passage  of 
vehicles  over  said  track."  and  subjectingthe 
superintendent,  managing  agent,  and  other 
officers,  to  a  fine  for  its  violation,  is  oppress- 
ive, unreasonable,  and  void,  in  its  opera- 
tion on  the  officers  personally.  Oxanna  v. 
Allen,  90  Ala.  468,  8  So.  Rep.  79. 

An  incorporated  town,  by  its  charter 
clothed  with  a  general  police  power  over 
its  streets,  and  also  with  a  like  general 
power  over  the  subject  of  nuisances,  has  the 
right  to  pass  '  n  ordinance  requiring  a  city 
railway  company  to  make  its  track,  located 
in  and  along  any  of  its  streets,  conform 
to  the  requirements  thereof,  so  as  to  enable 

*  Regulation  nf  street  railways  as  to  motive 
power,  see  note,  10  L.  R.  A.  176. 


wagons,  carriages,  and  other  vehicles  to 
pass  over  its  track  without  inconvenience 
or  danger,  and  to  punish  for  a  failure  to  do 
so.  North  Chicago  City  R.  Co.  V.  Lakt  View, 
105  ///.  183. 

A  city  is  under  no  obligation  to  conform 
it!>  treatment  of  its  streets  to  the  construc- 
tion of  the  roadbed  of  a  street  railway,  but 
the  company  must  conform  such  construc- 
tion to  such  re<isonable  regulations  as  are 
made  by  the  city  in  the  exercise  of  its 
powers  respecting  the  use,  control,  regula- 
tion, and  improvement  of  its  streets.  Detroit 
v.  Ft.  Wayne  &*  E.  R.  Co.,  $oAm.  &*  Eng. 
R.  Cas.  ^\7,^Mich.  646.  i\  N.  W.  Rep.68S. 

A  municipal  corporation,  under  the  ordi- 
nary powers  of  local  government,  may  pass 
ordinances  requiring  a  company,  incorpo- 
rated by  the  legislature,  and  having  its  rails 
down  and  in  use  through  the  streets,  under 
le^^'slative  sanction,  to  make  its  tracks  con- 
form to  grade ;  to  keep  in  repair  the  space 
between  the  rails ;  to  remove  snow,  and  the 
like.  State  (North  Hudson  County  R.  Co., 
Pros.)  V.  Mayor,  etc.,  of  Hoboken,  41  N. 
J.  L.  71. 

Such  regulations  do  not  appreciably  inter- 
fere with  the  franchises  of  the  company, 
and  the  legislature  is  presumed  to  have 
intended,  when  it  authorized  the  use  of  the 
public  streets  for  such  purposes,  that  its 
grantee  should  hold  its  privileges  subject  to 
such  regulations  as  are  reasonably  necessary 
for  the  common  use  of  the  streets  for  a 
street  railway,  and  for  ordinary  travel.  State 
{North  Hudson  County  R.  Co.,  Pros.)  v. 
Mayor,  etc.,  of  Hoboken.  41  N.  J.  L.  71. 

265.  PrcKcribing  ganire.— Where  a 
city  has  granted  to  a  company  the  privilege 
of  constructing  and  operating  a  street  rail- 
way, regulating  the  track  as  to  the  grade,  but 
making  no  provision  as  to  the  kind  of  rails  to 
be  used,  or  as  to  the  gauge  of  the  road,  it 
is  not  entitled  to  an  injunction  to  re- 
strain the  company  from  using  a  certain 
kind  of  rail,  or  from  building  its  road  upon 
a  certain  gauge.  Notwithstanding  the  gen- 
eral power  of  the  city  to  control  the  use 
of  the  streets,  the  company  may  regulate 
the  manner  of  laying  the  track  without 
equity  intcference.  Waterloo  v.  Waterloo 
St.  R.  Co.,  29  Am.  &*  Et^.  R.  Cas.  601, 71 
Iowa  193,  31  N.  W.  Rep.  329. 

City  authorities  who  have  been  enjoined 
from  interfering  with  the  extension  and 
operation  of  a  street-railway  line  are  not 
justified  in  interfering  therewith  by  resolu- 


STREET   RAILWAYS,  206,  267. 


4*1 


to 
ice 
do 


tions  subsequently  passed  by  the  city  coun- 
oil,  to  the  effect  that  all  street  railroads 
shall  be  of  the  standard  or  broad  gauge, 
and  declaring  the  privileges  of  the  company 
forfeited  for  violation  of  the  ordinance 
under  which  they  were  granted :  and  pro- 
posing the  passage  of  another  ordinance, 
granting  to  the  company  the  right  to  operate 
its  road  upon  terms  and  conditions  mate- 
rially different  from  those  contained  in  the 
original  ordinance.  Des  Moints  St.  R.  Co. 
V.  Des  Moines  Broad  Gauge  St.  R.  Co..  36 
Am,  &»  Eng.  R,  Cas.  132, 74  Iowa  585,  38  A''. 
W.  Kep.  496. 

A  city  which  has  for  fifteen  years  permit- 
ted, without  objection,  a  company  to  lay  its 
track  of  a  certain  width  or  gauge,  pursuant 
to  an  ordinance  which  prescribes  no  par- 
ticular gauge,  has  no  power  to  require  such 
company  to  construct  its  additional  track 
of  a  difTereiit  gauge.  Des  Moines  St.  R.  Co. 
V.  Des  Moines  Broad-Gatige  St.  R.  Co.,  36 
Am.  <S-  Eng.  R.  Cas.  132,  74  Iowa  585, 38  A^. 
IV.  Rep.  496. 

2GO.  and  kind  of  rails  to  be 

used.— A  city  can  require  the  tram  rail  to 
be  substituted  for  the  crescent  rail,  under  a 
contract  by  the  company  with  the  city  for  a 
right  of  way,  in  which  it  was  stipulated  that 
the  most  approved  rail  should  be  used. 
The  law  under  which  the  contract  was  made 
reserved  to  the  city  council  the  right  to 
regulate  and  control  such  railways  as  it  mi>:,>  t 
authorize  to  be  laid  down  and  operated  m 
the  streets  and  highways  of  the  city.  All 
the  streets  in  the  city  were  bouldered  or 
macadamized  when  the  railway  tracks  were 
constructed  with  the  crescent  rail.  The 
city,  having  inaugurated  a  system  of  street 
improvements  by  which  the  "  Nicholson  " 
was  gradually  being  substituted  for  the  stone 
pavements,  required  the  company  to  take 
up  its  crescent  and  put  down  the  tram  rail 
as  the  construction  of  the  Nicholson  pave- 
ment progressed,  it  being  agreed  that  the 
tram  was  the  better  rail  for  streets  in  which 
the  Nicholson  pavement  was  used.  Held, 
that  the  city  had  the  right  to  require  thecom- 
pany  to  substitute  the  tram  for  the  crescent 
rail,  at  the  cost  of  the  company.  LouisvilU 
City  R.  Co.  V.  Louisville.  8  Bush  (A>.)  415. 

A  council  cannot  by  contract  deprive  it- 
self of  the  power  to  regulate  the  recon- 
struction of  railways  made  necessary  by  the 
changes  in  the  character  of  pavement  used 
upon  the  streets  of  the  rity.  Louisville  City 
R.  Co.  v.  Lotiisville  8  Bush  {Ry.)  41s. 


A  street  railway  was  laid  with  flat  rails, 
and  after  many  years  was  relaid  with  T 
rails.  After  it  was  relaid  the  city  authori- 
ties, by  ordinance,  forbade  the  use  of  T  rails, 
and  proceeded  to  tear  up  the  rails.  Held, 
in  the  absence  of  anything  to  the  contrary 
in  its  charter,  that  the  company  could  change 
the  kind  of  rail  used,  and  that  the  town 
officers  were  trespassers,  and  an  injunction 
would  lie  to  restrain  further  interference 
with  the  track.  Easton,  S.  E.  6-  W.  E.  Pass. 
R.  Co.  v.  Easton,  43  Am.  6-  Eng.  R.  Cas.  253, 
133  Pa.  St.  505,  19  All.  Rep.  486.  — DISTIN- 
GUISHING Klingler  v.  Bickel,  1 17  Pa.  St.  326. 

267.  Requiring  a  conductor  and 
driver  on  each  car.— A  city  ordinance 
requiring  both  a  driver  and  a  conductor  on 
each  street-car,  and  requiring  the  police  to 
cause  every  car  not  provided  with  a  driver 
and  a  conductor  to  be  returned  to  the 
stables,  is  a  valid  exercise  of  the  police 
power  of  the  city.  South  Covington  &*  C. 
St.  R.  Co.  v.  Berry,  50  Am.  6-  Eng.  R.  Cas. 
434, 93  A>.  43, 18  5.  IV.  Rep.  1026.— Review- 
ing Brooklyn  Crosstown  R.  Co.  v.  Brooklyn, 
37  Hun  (N.  Y.)  413;  Ravenna  v.  Pennsyl- 
vania Co.,  45  Ohio  St.  1 18. 

Where  the  ordinances  of  a  city  do  not 
require  a  street-railway  company  to  keep  a 
conductor  on  each  of  its  cars,  in  addition  to 
a  driver,  its  failure  to  do  so  is  not  negli- 
gence per  se.  Dunn  v.  Cass  Ave.  &*  F.  G. 
R.  Co.,  21  Mo.  App.  188. 

Under  a  petition  which  alleges  negligence 
of  the  conductor  in  not  complying  with  an 
ordinance,  it  is  error  to  instruct  the  jury 
upon  the  hypothesis  that  no  conductor  was 
upon  the  car.  Dunn  v.  Cass  Ave.  6*  F.  G. 
R.Co.,  21  Mo.  App.  188. 

An  ordinance  enacting  that  it  shall  not 
be  lawful  for  any  company  to  fun  cars  with- 
out having  an  agent,  in  addition  to  the 
driver,  to  assist  in  the  control  of  the  car 
and  passengers,  and  to  prevent  accidents 
and  disturbances  of  the  good  order  and 
security  of  the  streets,  is  not,  upon  its  face, 
an  unreasonable  regulation.  State  {Trenton 
Horse  R.  Co.,  Pros.)  v.  Trenton,  Si  JV.  /.  L. 
132,  20  Atl.  Rep.  1076.  —  Distinguishing 
Haynes  v.  Cape  May,  50  N.  J.  L.  S5' 

A  city  cannot  compel  a  horse-railway 
company  to  provide  its  cars  with  conductors 
as  well  as  drivers,  under  its  general  power 
to  regulate  street  railways  and  the  carrying 
of  passengers :  neither  can  it  make  such  re- 
quircm'^nt  under  a  general  provision  in  the 
company's  charter  that  it  shall  be  subject  to 


442 


STREET   RAILWAYS,  268-271. 


I  if  I 


'ih  ■ 
i  ii; 


m 

II  w 


m 


ji 


all  ordinances  of  the  city.  (Dykman,  J., 
dissenting.)  Brooklyn  Crosstown  Jt.  Co.  v. 
Brooklyn,  37  Hun  (N,  V.)  413.— Quoted  in 
Lamline  v.  Houston,  W.  S.  &  P.  F.  R.  Co., 
14  Daly  144,  6  N.  Y.  S.  R.  248.  Reviewed 
IN  South  Covington  &  C.  St.  R.  Co.  v. 
Berry.  50  Am.  &  Eng.  R.  Cas.  434,  93  Ky. 
43,  18  S.  W.  Rep.  1026. 

In  1852  a  city  passed  a  by-law  prohibiting 
the  operation  of  cars  within  tiie  city  with- 
out two  men  in  charge.  Defendant  refused 
to  conform  to  this  by-law,  and  this  action 
was  brought  to  compel  it  to  do  so,  the 
agreement  of  1861  between  the  city  and  the 
company  as  to  the  operation  and  manage- 
ment of  its  road  being  relied  on.  Held.  (1) 
that  the  by-law  in  question  was  not  within 
the  terms  of  the  agreement,  and  that  it  was 
therefore  ultra  vires;  (2)  that  the  by-law 
was  invalid,  as  it  was  an  invasion  of  the 
domestic  concerns  of  the  company.  Toronto 
V.  Toronto  St.  R.  Co.,  it  Am.  &*  Eng.  R. 
Cas.  44,  15  Ont.  App.  30.  —  Reviewing 
Richmond.  F.  &  P.  R.  Co.  v.  Richmond,  y6 
U.  S.  527 ;  Toledo,  W.  &  VV.  R.  Co.  v.  Jack- 
sonville, 67  III.  37 ;  Brooklyn  Crosstown  R. 
Co.  V.  Brooklyn,  37  Hun  (N.  Y.)  413. 

208.  Requiring  cars  to  he  Htopped 
on  flrtit  appcnrunce  of  (Iaii|;cr.  —  An 
ordinance  of  a  city  is  valid  which  requires 
conductors  and  drivers  of  street-cars  to 
keep  a  vigilant  watch  for  all  vehicles  and 
persons  on  foot,  especially  for  children, 
either  on  the  track  or  moving  towards  it, 
and  that  on  the  first  appearance  of  danger 
to  such  person  or  vehicles  the  car  shall  be 
stopped  in  the  shortest  time  and  space  pos- 
sible. Path  V.  Tower  Grove  &^  L.  R.  Co., 
JO  Am.  &*  Eng.  R.  Cas.  426.  105  Mo.  537, 
16  S.  W.  Rep.  913;  affirming  39  Mo.  App. 
447.— Dis":nguishing  Hays  v.  Gainesville 
St.  R.  Co. ,  70  Tex.  602.  Quoting  Mayor, 
etc.,  of  Lyme  Regis  v.  Henley,  1  Bing.  N.  C. 
222;  Conrad  v.  Ithaca,  16  N.  Y.  158;  Hick- 
ock  V.  Plattsburgh.  16  N.  Y.  161,  «. ;  Willy 
v.  Mulledy.  78  N.  Y.  310. 

The  validity  of  said  ordinance  rests  on 
the  fact  that  under  the  state  Constitution 
and  city  charter  street  railways  are  allowed 
to  lay  their  tracks  upon  the  streets  of  the 
city  upon  the  condition  of  yielding  obedi- 
ence to  the  city  ordinances.  Path  v.  Tower 
Grave  &»  L.  R.  Cv.,  50  Am.  &*  Eng.  R.  Cas. 
426,  105  Mo.  537, 16  ,S.  W.  Rep.  913  ;  affirm- 
ing 39  Mo.  App.  447. 

The  city,  as  a  consideration  for  granting 
the  franchise,  can  require  an  enhanced  de- 


gree of  care  on  the  part  of  the  company  in 
running  its  cars.  Path  v.  Tower  Grove  &* 
L.  R.  Co.,  50  Am.  6^  Eng.  R.  Cas.  426,  105 
Mo.  537,  16  S.  W.  Rep.  913;  affirming  39 
Mo.  App.  447. 

A  street-railway  company  is  liable  in  a 
private  action  at  the  suit  of  any  person  in- 
jured by  its  neglect  of  the  ordinance,  and 
this  is  the  case  although  a  pecuniary  pen- 
alty is  imposed  for  its  non-observance.  Path 
V.  Tower  Grove &»  L.  R.  Co.,  50  Am.&*Eng. 
R.  Cas.  426,  105  Mo.  537. 16  5.  IV.  Rep.  913  ; 
affirming  39  Mo.  App.  447.— DISTINGUISH- 
ING Heeney  V.  Sprague,  11  R.  I.  456.— See 
also  Liddy  v.  St.  Louis  R.  Co.,  40  Mo,  506. 

260.  Requiring  track  to  be  wa- 
tered.—A  provision  in  the  charter  of  a  city 
giving  it  power  "  to  make,  ordain,  and  es- 
tablish  such  by-laws,  ordinances,  rules,  and 
regulations  as  shall  appear  to  them  requi- 
site and  necessary  for  the  security,  welfare, 
and  convenience  of  the  city  and  its  inhabit- 
ants, and  for  preserving  health,  peace,  and 
good  government  within  the  limits  of  the 
same,"  gives  it  authority  to  pass  an  ordi- 
nance requiring  street-car  companies  to  keep 
their  tracks  watered  so  as  to  lay  the  dust. 
City  &*  S.  R.  Co.  V.  Mayor,  etc.,of  Savan- 
nah,  77  Ga,  731.  4  Am.  St.  Rep.  106. 

Such  an  ordinance  is  not  invalid  on  ac- 
count of  being  partial  or  wanting  in  gener- 
ality. City  &»  S.  R.  Co.  V.  Mayor,  etc.,  of 
Savannah,  77  Ga.  731,  4  Am.  St.  Rep.  106. 

270.  Requiring  cars  to  be  uum« 
bered  or  licensed.  —  Ordinances  of  a 
city  prescribing  the  mode  and  times  of 
running  horse-cars  and  requiring  that  a 
license  shall  first  be  taken  out  under  cer- 
tain penalties  mentioned  is  invalid  as 
against  a  company  holding  under  its  char- 
ter, and  also  under  anterior  rights  derived 
from  a  turnpike  company  which  had  the 
right  to  lay  rails  through  the  city  without 
the  consent  of  the  council.  State  (Hoboken 
&*  W.  Horse  R.  Co.,  Pros.)  v.  Mayor,  etc.,  of 
Hoboken,  30  N.  J.  L.  225. 

As  a  police  regulation,  a  city  may  by  ordi- 
nance require  street  cars  to  be  numbered 
and  licensed,  and  that  the  certificate  of 
license  be  numbered  and  hung  in  each  car. 
Prankford&*  P.  Pass.  R.  Co.  v.  Philadelphia, 
58  Pa.  St.  119.— Approved  in  Allerton  v. 
Chicago,  9  Biss.  (U.  S.)  552,  EXPLAINED  IN 
Union  Pass.  R.  Co.  v.  Philadelphia,  83  Pa. 
St.  429. 

271.  Prohibiting  smoking  in  cam. 
—A  city  ordinance  prohibiting  smoking  in 


STREET    .  AILWAYS,  272-274. 


443 


m 

los 
39 


street-cars  is  constitutional  and  valid.  S/a/e 
V.  Htidenhain,  43  Am.  &*  Eng.  R.  Cas.  287, 
42  La.  Ann.  483,  7  So.  Rep.  621.— Distin- 
guishing State  V.  Bright,  38  La.  Ann.  1. 

272.  Liiiiitliiff  niiinbcr  of  pasNen- 
gerg,  and  requiring  report  of  num- 
ber carried. —  An  ordinance  requiring  a 
street-railway  company  to  report  to  the  city 
quarterly  the  number  of  trips  made,  and 
the  number  of  passengers  carried,  and  pun- 
ishing by  fine  the  carrying  of  more  than 
eighteen  passengers  on  the  average,  is  a 
regulation  reasonable  in  its  nature,  and  is 
binding  and  valid.  St.  Louis  v.  St.  Louis 
R.  Co.,  26  Am.  &•  Eng.  R.  Cas.  534.  89  ^o. 
44,  I  S.  IV.  Rep.  305 :  affirming  14  Mo.  App. 
22!.— Reviewing  St.  Louis  R.  Co.  v.  South 
St.  Louis  R.  Co.,  72  Mo.  67. 

Such  an  ordinance  is  within  the  grant  of 
power  conferred  upon  the  city,  authorizing 
it  to  make  such  municipal  regulations  con- 
cerning the  defendant  company  "as  the 
public  interest  and  convenience  may  re- 
quire." St.  lj)uis  V.  St.  Louis  R.  Co.,  26  Am. 
&*  Eng.  R,  Cas.  534,  89  Mo.  44,  i  S.  W.  Rep. 
305;  affirming  14  Rfo.  App.  221. 

273.  Removal  of  snow.*— Mass.  Act 
of  1864.  ch.  229.  §  16,  providing  that  "the 
board  of  aldermen  of  any  city,  or  the  select- 
men of  any  town,  in  which  a  street  railway 
is  operated,  may  from  time  to  time  estab- 
lish, by  an  order,  such  rules  aiid  regulations 
as  to  the  rate  of  speed,  mode  of  the  use  of 
the  tracks,  and  removal  of  snow  and  ice 
from  the  same,  as  in  their  judgment  the  in- 
terest and  convenience  of  the  public  may 
require,"  authorizes  the  passage  of  an 
order  entirely  prohibiting  the  removal  of 
snow  and  ice  by  a  railway  company,  and 
thereby  suspending  for  a  time  the  running 
of  cars.  Union  R.  Co.  v.  A  fay  or,  etc.,  of 
Cambridge,  11  Allen  (Mass.)  287. 

And  such  an  order  is  not  invalid  as  an 
attempt  to  delegate  power  to  another  offi- 
cer because  it  provides  that  snow  shall  only 
be  removed  with  the  consent  of  the  super- 
intendent of  streets.  Union  R.  Co.  v.  Mayor, 
etc.,  of  Cambridge,  11  Allen  {Mass.)  287. 

A  city  ordinance  restraining  a  street-car 
company  from  using  a  tnow  plow  on  its 
tracks  so  as  to  throw  snow  upon  the  adja- 
cent streets,  unless  a  license  is  first  obtained 
from  the  mayor,  is  not  invalid  because  a 

*See  also  ante,  201,  and  post,  31  7. 

Duly  of  itreet-railway  companies  to  remove 
snow  from  tracks,  see  notes,  25  Aif.  St.  Rep. 
480 ;  19  Am.  &  Eng.  R.  Cas.  136  ;  36  /</.  207. 


subsequent  section  provides  that  the  license 
shall  continue  only  at  the  will  of  the  mayor. 
Broadway  &*  S.  A.  R.  Co.  v.  Mayor,  etc.,  of 
N.  K.  49  Hun  126,  16  A'.  Y.  S.  R.  950,  i  A^ 
K.  Supp.  646. 

A  provision  of  an  ordinance  requiring 
the  company  not  only  to  remove  the  snow 
which  it  throws  from  its  track  but  also 
that  in  the  other  portion  of  the  street,  so 
as  to  level  it  with  the  track  and  make  it 
easy  for  vehicles  to  approach  the  sidewalk, 
and  so  the  whole  of  the  street  may  be  safe 
for  travel  within  twenty-four  hours,  is  not 
unreasonable.  Where  the  council  has  the 
right  to  restrain  the  use  of  snow  plows  alto- 
gether it  may  impose  the  terms  on  which 
they  may  be  used.  Broadway  &»  S.  A.  R. 
Co.  V.  Mayor,  etc.,  of  N.  Y.,  49  Hun  126.  16 
A^.  K.  5.  R.  950,  I  A^.  Y.  Supp.  646. 

The  fact  that  the  company  is  required  to 
run  its  cars  as  often  as  the  convenience  of 
the  public  may  require  does  not  give  it  the 
right  to  control  the  use  of  the  whole  of  the 
street.  If  it  be  conceded  that  the  company 
cannot  operate  its  road  without  the  removal 
of  snow,  it  does  not  follow  that  it  may  ob- 
struct every  part  of  the  street  except  that 
which  is  occupied  by  its  tracks.  Broadway  &' 
S.  A.  R.  Co.  v  Mayor,  etc. , of  N.  K..49  Hun 
126,  16  A'.  Y.  S.  R.  950.  I  N.  Y.  Supp.  646. 

274.  Putting  sand  on  traclc.  — A 
city  has  a  right  to  prevent  a  street-car  com- 
pany from  using  sand  on  its  track  at  cer- 
tain seasons  of  the  year;  and  this  is  so 
though  the  company  is  chartered  with  a 
provision  that  it  shall  be  the  duty  of  the 
city  officers  to  do  such  acts  as  ma>  be 
needful  to  promote  the  construction  and 
protect  the  operation  of  the  roaii,  and  that 
any  act  in  violation  of  the  statute  shall  be 
void.  Preventing  the  use  of  sand  in  no 
manner  prevents  the  construction  or  oper- 
ation of  the  road,  which  is  all  that  is  meant 
by  the  statute.  Dry  Dock,  E.  B.  <S*  B.  R. 
Co.  V  Mayor,  etc.,  of  N.  Y.,  47  Hun  221,  13 
A'.  Y.  S.  R.  391. 

The  above  provision  in  the  company's 
charter  was  only  designed  to  give  it  the  right 
to  use  the  streets  so  far  as  they  might  be 
necessary  for  the  construction  and  opera- 
tion of  the  road.  Beyond  that  it  was 
designed  to  subject  the  company  to  the 
control  of  the  common  council  having  the 
general  supervision  over  the  use  and  man- 
agement of  the  streets.  Dry  Dock,  E.  B.  &* 
B.  R.  Co.  v.  Mayor,  etc.,  of  N.  V.,  47  Huh 
221,  13  A',  Y.  S.  R,  391. 


w. 


444 


STREET   RAILWAYS,  276  2/tf. 


!.f 


'1;   - 


275.  UHingr  bellH  and  lights.— Driv- 
ing a  car  at  considerable  speed  through  a 
city  street,  not  lighted,  on  a  dark  evening, 
and  without  any  proper  means  of  giving 
notice  to  persons  who  may  be  on  the  track, 
and  without  any  lamps  on  the  car  to  enable 
the  driver  to  see  what  is  on  the  rails  before 
him,  is  such  proof  of  negligence  as  to  justify 
a  submission  of  the  case  to  the  jury.  /oAn- 
soH  V.  Hudson  River  R.  Co.,  20  A'.  Y.  65 ;  af- 
JirtniMg  6  Duer  (N.  K.)633. 

Owing  to  their  momentum  and  noiseless- 
ness,  street-cars  are  generally  required  to 
use  bells  and  to  display  lights.  Memphis 
City  R.  Co.  V.  Lo£^ue,  13  Lea  (Tenn.)  32.— 
Approving  Johnson  v.  Hudson  River  R. 
Co..  20  N.  Y.  65;  Shea  v.  Potrero  &  B.  V. 
R.  Co.,  44  Cal.  414. 

But  the  above  rule  does  not  go  so  far  as 
to  require  a  street-car  company  to  furnish 
such  lights  as  will  enable  its  drivers  "  to  see 
objects  ahead  on  the  track,  with  the  aid  of 
the  street  lights,  in  time  to  avoid  an  acci- 
dent"; and  it  is  error  so  to  instruct  the 
jury.  Memphis  City  R.  Co.  v.  Lcgue,  13  Lea 
(Tenn.)  32, 

270.  Where  charter  Is  granted  by 
legislature.— The  general  power  of  a  city 
to  regulate  street-cars,  and  to  prohibit  nui- 
sances, and  to  prevent  needless  obstructions 
to  the  streets,  does  not  give  it  the  right  to 
interfere  with  the  tracks  of  a  street  railroad 
nt  certain  places,  where  such  tracks  are 
authorized  by  the  legislature,  on  the  alleged 
ground  that  there  arc  too  many  on  the 
street.  Brooklyn  City  R.  Co.  v.  Furey,  4 
Abb.  Pr.  N.  S.  {JSr.  Y.)  364.  —  Applying 
Brooklyn  C.  R.  Co.  v.  Brooklyn  City  R. 
Co.,  32  Barb.  (N.  Y.)  363. 

Wliether  the  company  has  exceeded  its 
legislative  grant,  and  whether  the  tracks 
are  a  nuisance,  must  be  determined  by  the 
courts,  and  cannot  be  determined  sum- 
marily in  the  exercise  of  the  city's  authority 
to  abate  nuisances  and  remove  obstructions. 
lUooklyn  City  R.  Co.  v.  Furey,  4  Abb.  Pr. 
N.  S.  (N.  Y.)  364. 

A  company  having  laid  its  road  in  the 
streets  of  a  city  under  a  charter  from  the 
state,  it  is  liable  to  the  regulations  adopted 
by  councils  for  the  preservation  of  the  public 
rights  in  the  highway.  West  Pkila.  Pass, 
K.  Co.  V.  Philadelphia,  10  Phila.  (Pa.)  70. 

But  where  an  obstruction  arises  by  the 
laying  of  another  track  on  the  same  street, 
under  a  subsequent  charter,  it  is  not  reason- 
able ground  to  authorize  a  city  ordinance  to 


require  the  removal  of  the  first  track,  and 
such  removal  by  the  city  authorities  is  ille- 
gal  and  will  be  restrained.  Such  removal  is 
not  a  public  work  under  Pa.  Act  of  April  8. 
1846.  IVest  Phila.  Pass.  R.  Co.  v.  Phila- 
delphia, 10  Phila.  (Pa.)  70. 

277.  City  cannot  prevent  use  of 
street  authorized  by  charter.— Power 
granted  to  a  city  to  regulate  and  control 
the  use  of  streets  does  not  empower  it  to 
prohibit  a  street-car  company  from  using  a 
street  under  authority  conferred  upon  it  by 
its  charter.  Citizens'  St.  R.  Co.  v.  Memphis, 
S3  Fed.  Rep.  715. 

yni.  TAXATION ;  ASSESSMENTS. 

I.  /«  General. 

278.  Tax  on  easement  or  fran- 
chise.*— The  right  of  way  or  easement  of 
a  street-railway  company  in  city  streets  is 
property  and  taxable  as  such,  and  may  be 
assessed  for  improvements.  Chicag^o  City 
R.  Co.  V.  Chicago,  90  ///.  573.  Chicago  v. 
Baer,  41  ///.  306. 

270.  Tax  on  gross  earnings.— Md. 
Act.  of  1874,  ch.  483,  §  145,  excepting  the 
stock  of  railroad  companies  from  assessment, 
applies  only  to  steam  railroads,  as  the  act  of 
1874,  ch.  408,  had  imposed  a  tax  on  the  gross 
receipts  of  such  companies  in  lieu  of  other 
taxation.  Mayor,  etc.,  of  Baltimore  v.  Bal- 
timore City  Pass.  R.  Co. ,  7  Am.  &*  Eng.  R. 
Cas.  362,  57  Md.  31. 

When  an  ordinance  granting  to  a  company 
the  privilege  of  using  city  streets  provides 
that  the  percentage  upon  the  ^ross  earnings 
payable  therefor  shall  be  co  respondingly 
reduced  whenever  the  amount  )f  the  gross 
receipts  of  any  other  compam  shall  be  re- 
duced, such  company  is  no',  entitled  to  a 
reduction  because  of  the  Pi:ceptancc  by  the 
city  from  other  companies,  by  way  of  com- 
promise of  suits  and  controversies,  of  sums 
less  than  claimed  by  it.  Baltimore  Union 
Pass.  R.  Co,  V.  Mayor,  etc.,  0/ Baltimore,  41 
Am.&'Eng.  R.  Cas.  646,  71  Md.  405,  18  ..4//. 
Rep.  917. 

In  an  action  by  a  city  to  enforce  payment 
of  a  percentage  of  the  earnings  of  a  com- 
pany whose  road  extends  beyond  the  city 
limits,  the  testimony  of  passengers  as  to 
their  estimate  of  tlie  number  of  persons 

*  Taxation  of  easement  of  street  railway. 
Real  estate,  see  note,  39  Am.  &  Eng.  R.  Cas. 
537- 


STREET   RAILWAYS,  280-383. 


446 


traveling  upon  tlic  portion  beyond  the  city 
limits  IS  not  admissible  for  the  purpose  of 
showing  the  proportion  of  receipts  applica- 
ble to  such  portion  of  the  road.  Baittmore 
Vmon  Pass.  A'.  Co.  v.  Mayor,  etc  ,  of  BaUi' 
more,  41  Am.  &»  Eng.  R.  Cas.  646,  71  Aid, 
405,  18  Atl.  Hep.  917. 

The  testimony  of  witnesses  who  rode 
twice  or  more  a  day  on  the  line  which  ex- 
tended beyond  the  city  limits,  and  who 
stated  their  estimate  from  casual  observa- 
tion as  to  the  proportion  of  passengers  on 
that  line  who  got  on  in  the  country  and 
rode  into  the  city,  or  in  the  city  and  rode 
into  the  country,  compared  with  that  of 
those  who  began  and  ended  their  rides  in 
the  city,  but  who  did  not  and  could  not 
tell  at  what  point  outside  the  city  the  pas- 
sengers they  observed  got  on,  or  where  they 
got  off  in  the  city,  could  not  of  itself  supply 
a  safe  method  of  ascertaining  the  real  earn- 
ings of  that  part  o(  the  track  lying  outside 
the  city.  Baltimore  Union  Pass.  R.  Co.  v. 
Mayor,  etc.,  of  Baltimore,  41  Am.  &*  Eng.  R. 
Cas.  646,  71  Mii.  405,  18  Att.  Rep.  917. 

A  city  ordinance  which  granted  defend- 
ant Its  privileges,  and  imposed  the  tax  sued 
tor,  provided  that  "  whenever  the  amount 
of  the  gross  receipts  of  any  passenger-rail- 
way company,  owning  or  operating  railway 
tracks  in  the  city  of  Baltimore,  now  required 
to  be  paid  10  the  city  register  for  the  use  of 
the  park  fund,  shall  be  reduced  from  twelve 
per  centum  to  any  less  amount,  the  said  re- 
duction shall  apply  to  the  railways  hereby 
authorized  to  be  constructed."  ^eM,  that 
the  fact  that  the  city  had  accepted  from 
other  companies  less  than  was  due  on  ac- 
count of  said  tax,  by  way  of  compromise  for 
the  purpose  of  ending  certain  suits  and 
controversies  over  amounts  claimed  as  due, 
did  not  constitute  a  reduction  of  the  per 
centum  of  tax,  within  the  meaning  and  in- 
tention of  said  ordinance,  which  would  en- 
title defendant  to  a  like  reduction.  Ba/ti- 
more  Union  Pass.  R.  Co.  v.  Mayor,  etc.,  of 
Baltimore,  41  Am.  &*  Eng.  R.  Cas.  646,  71 
Md.  405,  18  Atl.  Rep.  917. 

280.  Tax  ou  dividends.— The  char- 
ter of  a  street-car  company  provided  that 
when  the  dividends  exceeded  six  per  cent, 
per  annum  on  the  capital  stock  six  per  cent, 
on  the  dividends  should  be  paid  to  the  city. 
Held,  that  the  tax  to  the  city  was  to  be  on  the 
whole  dividend,  not  merely  on  the  excess 
over  the  six  per  cent.  Philadelphia  v.  Phila- 
dtlphia  *•  G.  F.  Pass.  R.  Co.,  52  Pa.  St.  177. 


281.  Improving  street  in  lieu  of 
taxation. —The  general  council  oi  a  city 
adopted  a  report  of  a  committee  recom- 
mending that  a  certain  street-railroad  com- 
pany be  exempted  from  taxation  for  a 
certain  time,  and  that  it  be  required  to  mac- 
adamize its  track  and  three  feet  on  each 
side  and  keep  it  in  good  order,  to  conform 
to  the  street  as  it  is,  or  to  the  grade  when 
given,  "and  otherwise  to  comply  with  ordi- 
nances now  in  force  or  that  may  hereafter 
be  adopted."  Held,  that  the  company  was 
required  to  comply  with  such  ordinances  as 
were  then  in  force,  and  such  as  might  there- 
after be  adopted  relating  to  its  track  or  pav- 
ing the  street.  Atlanta  v.  Gate  City  St.  R. 
Co.,  80  Ga.  276,  4  S.  E.  Rep.  269. 

In  such  case  it  was  error  in  the  trial  court 
to  rule  that,  if  the  company  macadamized  its 
track  and  three  feet  on  each  side  of  it,  and 
kept  it  in  good  order,  the  city  could  not  re- 
quire it  further  to  pave  its  track  and  three 
feet  on  each  side  with  rubble-stone.  At' 
lanta  v.  Gate  City  St.  R.  Co.,  80  Ga.  276.  4 
S.  E.  Rep.  269. 

282.  Bight  to  increase  taxes.  —  A 
city  ordinance,  passed  in  pursuance  of  a 
statute  imposing  a  license  tax  on  street 
railways,  does  not  impair  the  obligation  of  a 
contract,  entered  into  before  the  passage  of 
the  statute,  by  which  the  city  sold  to  the 
company  the  right  to  operate  a  railroad  for 
a  number  of  years,  whereby  the  company 
agreed  to  pay  to  the  city  an  annual  real- 
estate  tax,  and  the  city  in  turn  agreed  not  to 
grant  a  similar  franchise  to  any  other  com- 
pany. New  Orleans  City  &*  L.  R.  Co.  v. 
New  Orleans,  143  U.  S.  192,  12  Sup.  Ct. 
Rep.  406.— Distinguishing  Gordon  v.  Ap- 
peal Tax  Court,  3  How.  (U.  S.)  133.  Fol- 
lowing Memphis  Gaslight  Co.  v.  Shelby 
County,  109  U.  S.  398. 

A  provision  in  the  charter  of  a  street- 
railway  company  making  it  liable  to  pay  a 
certain  tax  to  the  city  does  not  take  away 
from  the  state  the  right  afterwards  to  impose 
a  greater  tax.  Union  Pass.  R.  Co.  v.  Phila- 
delphia, 83  Pa.  St.  429, 15  Am.  Ry.  Rep.  431. 

283.  Property  subject  to  taxation. 
— A  company  is  not  taxable  for  horses  or 
other  personal  property  used  in  and  neces- 
sary for  the  prosecution  of  its  business. 
Middlesex  R.  Co.  v.  Charlestown,  8  Alltn 
(Mass.)  330. 

Debts  of  horse-railroad  corporations,  se- 
cured by  mortgage  on  land  to  trustees,  are 
non-taxable,    if    tlie    mortgagor    has    not 


446 


STREET   RAILWAYS,  284-286. 


I:     I? 


mi 


claimed  a  deduction  therefor.  Merchants' 
Int.  Co.  V.  Newark,  54  N.J.  L.  138,  23  ^//. 
Etp.  30$. 

Horses  owned  by  companies  are  taxable 
under  the  law  requiring  assessors  to  assess, 
rate,  and  value  all  objects  of  taxation  ;  and 
it  is  not  necessary  that  the  city  should  first, 
by  ordinance,  provide  a  special  system  for 
taxing  them.  Assessors  having  taken  their 
oath  of  office,  and  received  a  proper  precept 
from  the  board  of  revision  ol  taxes,  tliuugh 
prior  to  their  present  term,  their  service  be- 
ing broken,  are  fully  qualified  to  levy  and 
assess  taxes.  Smith  v.  Philadelphia  City 
Pass.  R.  Co.,  IS  Phila.  (Pa.)  89. 

The  act  (45  Vict.  (Q)  ch.  22)  which  im- 
poses an  annual  tax  of  fifty  dollars  on  pas- 
senger-railway companies  for  each  mile  of 
railway  or  tramway  worked  refers  to  the 
distances  between  terminal  points,  and  does 
not  include  the  length  of  double,  switch, 
and  yard  tracks.  Lambe  v.  Montreal  St.  R. 
Co.,  4  Montr.  Super.  162. 

A  street  railway  is  not  assessable  as  for 
land,  within  the  meaning  of  the  Assessment 
Act,  32  Vict.  ch.  36,  O,  for  those  portions 
of  the  streets  occupied  by  it  for  the  pur- 
poses of  its  railway.  Toronto  St.  R.  Co.  v. 
Fleming,  37  U.  C.  Q.  B.  116;  reversing  35 
U.  C.  Q.  B.  264. 

284.  Manner  of  assessing.— The  basis 
of  the  assessment  under  the  act  to  improve 
the  Bull's  Ferry  road  (N.  J.  Pamph.  L.  1872, 
P-  1379)  is  landownership,  and  a  failure  to 
assess  a  horse-railroad  company,  the  track 
of  which  runs  over  said  improved  road,  be- 
cause its  franchise  is  more  valuable  by  rea- 
son of  the  improvement,  is  not  erroneous, 
in  the  absence  of  proof  that  the  real  estate 
of  the  company  is  peculiarly  benefited. 
State  (King,  Pros.)  v.  Duryea.  45  N.J.  L.  258. 

2.  License  Taxes. 

285.  Generally.  —  A  legislative  fran- 
chise to  run  street-cars,  prescribing  certain 
conditions  to  be  performed  by  the  grantees, 
does  not  exempt  the  occupation  of  operat- 
ing the  road  from  lawful  police  regulations 
and  municipal  taxation.  San  Josi  v.  San 
Josi  S*  S.  C.  R.  Co.,  53  Cat.  475.— APPLY- 
ING Sacramento  v.  California  Stage  Co.,  I2 
Cal.  134. 

Where  the  city  of  New  York  has  granted 
to  a  company  a  right  of  way  over  certain 
streets,  it  cannot  afterwards  levy  a  license 
tax  upon  the  company's  can,  for  revenue 


purposes  only,  under  u  mere  reservation  'A 
the  right  ol  municipal  regulation  in  the 
grant.  Mayor,  etc.,  of  N.  Y.  v.  Third  Ave. 
R.  Co.,  33  N.  Y.  42.— Following  Mayor, 
etc.,  of  N.  Y.  V.  Second  Ave.  R.  Co.,  32  N. 
Y.  261.— Distinguished  in  Mayor,  etc.,  of 
N.  y.  V.  Broadway  &  S.  A.  R.  Co.,  97  N.  Y. 
275.  Explained  in  Mayor,  etc.,  of  N.  Y. 
V.  Third  Ave.  R.  Co..  3  N.  Y.  S.  R.  181. 
Reviewed  in  Mayor,  etc.,  of  N,  Y.  v. 
Broadway  &  S.  A.  R.  Co.,  17  Hun  (N.  Y.)  242. 

And  as  the  attempt  to  impose  such  license 
tax  was  illegal,  the  common  council  could 
not  impose  a  penalty  for  non-compliance. 
Mayor,  etc.,  of  N.  Y.  v.  Third  Ave.  R.  Co., 
II  N.  K.42. 

By  defendant's  charter  its  right  to  con- 
struct and  operate  a  railroad  was  made 
subject  "  to  the  payment  to  the  city  of  the 
same  license  fee  annually  for  each  car  run 
thereon  as  is  now  paid  by  other  city  rail- 
roads in  said  city."  At  the  time  the  charter 
was  granted  two  railroads  were  paying  fifty 
dollars  per  car.  another  paid  twenty  dollars 
per  car,  and  three  companies  paid  nothing. 
Held,  that  the  city  was  entitled  to  collect 
fifty  dollars  per  car  from  defendant.  Mayor, 
etc.,  of  N.  y.  V.  Broadway  6-  S.  A.  R.  Co., 
97  N.  Y.  275  ;  affirming  28  //un  323,  mem. 
—Distinguishing  Mayor,  etc..  of  N.  Y.  v. 
Second  Ave.  R.  Co.,  32  N.  Y.  261 ;  Mayor, 
etc.,  of  N.  Y.v.  Third  Ave.  R.  Co..  33  N.  Y. 
42.— Followed  in  Mayor,  etc.,  of  N.  Y.  v. 
Dry  Dock,  E.  B.  &  B.  R.  Co.,  11 3  N.  Y.  137. 
19  N.  E.  Rep.  420,  20  N.  Y.  S.  R.  236. 

The  common  council  of  a  city  passed  an 
ordinance  requiring  street-cars,  except  one* 
horse  cars,  to  pay  an  annual  license  fee  of 
fifty  dollars  per  car.  Held,  that  the  ordi« 
nance  was  valid  as  to  companies  whose 
charters  provide  that  they  shall  be  subject 
to  the  payment  of  license  fees.  Mayor,  etc., 
of  N.  Y.  V.  Broadway  6*  S.  A.  R.  Co.,  97  A'. 
Y.  275  ;  affirming  28  Hun  323,  mem. 

280.  Power  of  city  to  tax.*— A  city 
granted  to  a  corporation  a  franchise  to  con- 
struct and  operate  a  street  railroad  within 
its  limits,  and  in  the  ordinance  conferring 
the  grant  provided  how  and  when  the  road 
should  be  constructed,  and  the  manner  in 
which  it  should  be  maintained.  Held,  that 
the  grant  thus  made  did  not  prevent  the  city 
from  levying  and  collecting  a  hcenae  tax 

*  Validity  of  a  municipal  ordinance  requlrinsr 
street-car  company  to  pay  a  certain  sum  for  each 
car  run,  sec  39  Am.  &  Eng.  R.  Cas.  543,  abstr. 


STREET   RAILWAYS,  287,  288. 


447 


n  'A 
the 

Avt, 

yor, 

!  N. 
c.,of 
^.  Y. 
^.  Y. 

i8i. 

.   V. 

342. 

ense 

uuld 

lance. 

Co., 


thereon.  WyattdoUi  v.  Corrigan,  35  Kan, 
21. 10  Pac.  R*p.  99. 

Under  its  amended  charter  of  1875  Kansas 
City  passed  an  ordinance  "to  license,  tax, 
and  regulate  street-railroad  cars,"  under 
which  defendant  was  prosecuted  for  carry- 
ing passengers  on  a  street  railway  without 
a  license.  The  defense  set  up  was  that  he 
was  an  officer  of  a  company  which  occupied 
the  streec?  by  virtue  of  ordinances  enacted 
in  1869,  and  that  the  rights  of  the  company 
could  not  be  impaired  or  changed  by  subse- 
'quent  legislation  without  its  assent,  and 
that  the  city  had  no  power  to  impose  any 
new  burden  or  condition  upon  the  company 
as  a  condition  precedent  to  its  right  to  op- 
erate its  road.  Held;  (i)  that  in  1869  the 
city  had  no  power  to  impose  such  tax,  and 
therefore  could  not.  by  the  ordinance  of 
that  year,  part  with  a  power  it  did  not  pos- 
sess; (2)  that  under  the  Missouri  Consti- 
tution of  1865  a  tax  upon  occupations  and 
professions  had  to  be  uniform.  If  said  city 
had  the  power  to  impose  the  license  tax,  it 
must  have  been  imposed  on  all  nlike,  and 
the  legislature  itself  could  not  tax  other- 
wise: so  that  giving  to  the  ordinance  of 
1869  the  construction  asked  by  defendant, 
it  was  null  and  void.  Kansas  City  v.  Corri- 
gan, 18  Mo.  App.  206.— Distinguishing 
Mayor,  etc.,  of  N.  Y.  v.  Second  Ave.  It.  Co., 
32  N.  Y.  272. 

The  city  of  Hoboken  has  no  power  under 
its  charter  to  compel  a  company  to  take  out 
licenses  and  pay  an  annual  license  fee  of 
fifteen  dollars  for  every  une-horse  car,  and 
twenty-five  dollan  for  every  two-horse  car, 
which  the  company  shall  run.  State  (North 
Hudson  County  R.  Co.,  Pros.)  v.  Mayor,  etc., 
of  Hoboken,  41  N  J.  L.  71. 

Such  license  aid  fees  cannot  be  exacted 
unless  power  is  given  to  the  city  to  resort 
to  licenses  and  license  lees  for  revenue  pur- 
poses. A  provision  in  its  charter  granting 
power  "  to  Ifw-ense  and  regulate  "  does  not 
authorize  the  city  to  exact  license  fees  for 
revenue  purposes.  State  {North  Hudson 
County  R.  Co.,  Pros.)  v.  Mayor,  etc.,  of 
Hoboken,  41  N.f.L.ji. 

N.  J.  Act  of  1882,  respecting  licenses  in 
cities  of  the  first  class,  is  local  and  special, 
and  therefore  unconstitutional,  and  an  ordi- 
nance of  a  city  passed  thereunder  requiring 
street  railways  to  pay  an  annual  license  fee 
of  ten  dollars  for  each  car  is  void.  State 
(Pavonia  Horse  R.  Co.,  Pros.)  v.  Mayor,  etc., 
of  fersey  City,  ^%  N.J.  L.  297. 


An  ordinance  imposing  a  license  duty 
upon  city  cars,  for  revenue  purposes  only, 
is  not  an. ordinance  for  police  and  internal 
government.  The  imposition  of  an  annual 
tax  by  such  corporation  upon  a  company,  in 
derogation  of  its  rights,  for  purposes  of 
revenue  only,  is  unlawful  and  void.  Mayor, 
etc.,  of  N.  Y.  V.  Second  Ave.  K.  Co.,  32  A'. 
K.  261  ;  affirming  34  Barb.  41.  12  Abb.  Pr. 
364,21  How.  Pr.  257.— Applied  in  People 
V.  O'Brien,  36  Am.  &  Eng.  R.  Cas.  78,  in 
N.  Y.  I,  18  N.  E.  Rep.  692.  19  N.  Y.  S.  R. 
173.  Distinguished  in  Kansas  v.  Corri- 
gan, 18  Mo.  App.  206;  Mayor,  etc.,  of  N.  Y. 
V.  Broadway  &  S.  A.  R.  Co.,  97  N.  Y.  275: 
Frankford  &  P.  Pass.  R.  Co.  v.  Philadelphia. 
58  Pa.  St.  119.  Followed  in  Mayor,  etc., 
of  N.  Y.  V.  Third  Ave.  R.  Co.,  33  N.  Y.  42. 
Not  followed  in  Allerton  v.  Chicago,  9 
Biss.  (U.  S.)  552.  Reconciled  in  Mayor 
of  N.  Y.  V.  Third  Ave.  R.  Co.,  3  N.  Y.  S.  R. 
181.  Reviewed  in  Mayor,  etc.,  of  N.  Y.  v. 
Broadway  &  S.  A.  R.  Co.,  17  Hun  (N.  Y.)  242. 

Under  Pa.  Act  of  April  2,  1850,  the  city 
of  Philadelphia  has  authority  to  regulate  all 
vehicles,  including  street-cars,  and  a  license 
tax  of  fifty  dollars  is  valid.  Railroad  Co. 
V.  Philadelphia,  6  Phila.  (Pa.)  238. 

287.  Justified  a8  a  police  regiila- 
tiou.— A  city  ordinance  requiring  street- 
car companies  to  obtain  a  license,  and  pay 
fifty  dollars  per  annum  for  each  car,  is  a 
valid  exercise  of  the  police  power  of  the 
city.  Allerton  v.  Chicago,  9  Biss,  ( U,  S.) 
552,  6  Fed.  Rep.  555.— Applying  Chicago 
P.  &  P.  Co.  v.  Chicago,  88  III.  221.  Ap- 
proving  Johnson  v.  Philadelphia,  60  Pa. 
St.  445;  Frankford  4  P.  Pass.  R.  Co.  v. 
Philadelphia,  58  Pa.  St.  119.  Not  fol- 
lowing Mayor,  etc.,  of  N.  Y.  v.  Second 
Ave.  R.  Co..  32  N.  Y.  261. 

The  imposition  by  the  councils  of  Phila- 
delphia of  an  annual  sum  on  cars,  as  a  tax 
to  raise  revenue,  would  be  an  invasion  of 
the  chartered  rights  of  the  company  and 
void ;  but  the  imposition  of  a  reasonable 
charge  for  a  license,  as  a  police  regulation, 
although  its  incidental  operation  should 
augment  the  treasury  receipts,  is  not  in- 
valid.  Johnson  v.  Philadelphia,  60  Pa.  St. 
445.— Following  Frankford  &  P.  Pass. 
R.  Co.  V.  Philadelphia,  58  Pa.  St.  119.— 
Approved  in  Allerton  v.  Chicago,  9  Biss. 
(U.  S.)  55'. 

288.  When  company  subject  to 
taxation.  —  The  grant  of  an  exclusive 
right,  by  city  ordinance,  to  a  company,  to 


as 


STREET    RAILWAYS,  28U,200. 


iiir 


I 


u 


IM 


cuiistruat,  operate,  and  maintain  over  the 
streets  jf  the  city  a  street  railway,  contain- 
ing nu  provision  in  relation  to  thy  payment 
of  any  fee  or  license,  does  not  exempt  the 
company  from  paying  a  license  fee  provided 
by  a  prior  ordinance  to  be  paid  by  all  pci- 
sons  engiiged  in  carrying  passengers.  State 
V.  Herod,  29  hnva  1 23. 

Operating  a  street  railroad  by  horse  and 
steam  is  a  business  which  can  be  subjected 
to  the  payment  of  a  license,  under  La.  Act 
101  of  1886  iin<l  New  Orleans  city  ordinance 
2035.  New  Orleans  v.  New  Orleans  City  &» 
L.  R,  Co.,  40  La.  Ann.  587.  4  So.  Rep.  512. 

A  contract  conferring  the  right  to  lay 
rails  to  operate  a  street  railway,  without 
dispensing  with  the  payment  of  a  license, 
is  not  impaired  by  the  exaction  of  such 
license.  New  Orleans  v.  Ne%u  Orleans  City 
&*  L,  R.  Co, ,  40  La.  Ann,  587,  4  So,  Rep,  5 1 2. 

r^y  N.  y.  Act  of  1874,  ch.  478,  defendant 
company  was  authorized  to  extend  its  road, 
and  it  was  provided  that  it  should  be  "  sub- 
ject only  to  the  provisions  of  the  General 
Railroad  Act  of  this  state  (act  of  1850,  ch. 
140),  wiili  Its  amendments."  The  General 
Railroad  Act  did  not  require  payment  of  any 
license  fee  to  the  city.  The  coiiipaiiy  was 
organized  in  1855,  under  the  Street  Railroad 
Act  of  1854,  and  agreed  to  pay  a  certain 
license  fee  on  its  cars,  which  it  did  pay 
from  i860  to  1874.  Held,  that  the  company 
was  not  relieved  of  paying  the  license  tax 
by  the  act  of  187.1.  Mayor,  etc,  of  N,  V, 
v.  Eighth  Ave.  R.  Co.,  \\i  N,  V.  389.  23  N, 
E.  Rep.  550,  29  A'.  Y.  S,  R.  17;  affirming 
43  Hun  614,  6  A'.  Y.  S.  R.  631.  —  UisriN- 
GUISHED  IN  Mayor,  etc..  of  N.  Y.  v.  New 
York  &  H.  R.  Co.,  46  N.  Y.  S.  R.  349. 

A  city  ordinance  re<iiiired  each  passenger- 
railroad  company  to  pay  a  license  fee  of 
fifty  dollars  per  car,  "  except  the  small  one- 
horse  cars  which  have  each  paid  twenty- 
five  dollars  annually."  Defendant's  charter 
made  it  subject  to  reasonable  rules  and  reg- 
ulations of  the  council,  and  required  "pay- 
ment to  the  city  of  the  same  license  fee 
annually  for  each  car  run  thereon  as  is  now 
paid  by  other  railroads  in  said  city."  Held, 
that  the  liability  of  defendant  to  pay  did 
not  depend  upon  the  amount  actually  paid 
by  other  companies,  but  the  amount  which 
by  law  they  were  required  to  pay.  Mayor, 
ttc.,  of  N.  Y.  V.  Forty-second  &»  G,  St,  R. 
Co.,  52  H<nv.  Pr.  (N.  Y.)  106. 

280.  A  Htrcct-cnr  nil  "oiniiibiiN" 
Tor  lUirpoHvs  of  tuxativii,  —  A  street 


railroad  is  a  mere  omnibus  on  rails.     Hoy/ 
V.  SixtA  Ave.  R.  Co.,  i  Daly  (N,  Y,)  528. 

A  resolution  of  the  common  council  of 
the  city  of  New  York  recited  that  defendant 
company  "shall  pay  from  the  date  of  the 
opening  of  the  said  railroad  the  license  fee 
on  each  car  now  allowed  by  law,  and  shall 
have  licenses  accordingly."  At  the  time 
there  was  no  law  specifically  regulating  the 
license  fees  to  he  paid  by  street-cars ;  but 
it  appeared  that  there  were  stages  or  omni- 
buses, which  were  engaged  in  the  trans- 
portation of  passengers  between  points- 
which  corresponded  nearly  with  the  route 
of  defendant's  road,  which  paid  an  annual 
license  fee  to  the  city  under  an  ordinance. 
Held,  that  the  resolution  related  to  the 
license  fee  already  prescribed  for  such 
omnibuses.  Mayor  of  N.  Y.  v.  Third  Avt, 
R,  Co.,  3  A'.  Y.  S.  R,  181.  — Explaining 
Mayor,  etc.,  of  N.  Y.  v.  Third  Ave.  R.  Co., 
33  N.  Y.  42.  Reconcii.ing  Hegan  v.  Eighth 
Ave.  R.  Co.,  15  N.  Y.  380;  Wliitaker  v. 
Eighth  Ave.  R.  Co.,  51  N.  Y.  295;  Mayor  of 
N.  Y.  V.  Second  Ave.  R.  Co.,  32  N.  Y.  261. 

III.  Rev.  St.  ch.  24,  S  i>  giving  city  coun- 
cils authority  tc  license  "  hackmen,  dray- 
men, omnibus  drivers,  cabmen,  expressmen, 
and  all  others  pursuing  like  occupations," 
includes  street-cars.  Allerton  v.  Chicago, 
9  Riss.  ( U.  S,)  552, 6  Fed.  Rep.  555.  Frank- 
ford  &*  P.  Pass.  R.  Co.  V.  Philadelphia.  58 
Pa.  St.  119.— Distinguishing  Mayor  of 
N.  Y.  V.  Second  Ave.  R.  Co.,  32  N.  Y.  261. 
—Applied  in  Mayor  of  N.  Y.  v.  Third 
Ave.  R.  Co.,  3  N.  Y.  S.  R.  181. 

200.  Kitcht  to  iiicrcaHe  tli«  tax.  — 
A  company  was  by  statute  authorized  to 
operate  a  railway  upon  certain  streets  sub- 
ject *  to  the  payment  to  the  city  of  the 
same  license  fee  annually  for  each  car  run- 
ning thereon  as  is  now  paid  by  other  city 
railroads."  The  license  fee  then  payable 
was  fifty  dollars  for  each  two- horse  car  and 
twenty-five  dollars  for  each  one-horse  car. 
By  a  subsequent  statute  the  company  was 
authorized  to  extend  its  tracks  subject  to 
the  payment  of  five  per  cent,  of  the  net 
proceeds  of  the  cars  running  on  such  ex- 
tension, and  all  acts  inconsistent  with  the 
provisions  of  the  act  authorizing  the  exten- 
sion were  repealed.  Held,  that  the  two 
statutes  must  be  deemed  to  have  created 
different  franchises,  that  they  were  not  in- 
consistent with  each  other,  and  that  the 
company  must  pay  the  license  fee  and  a 
percentage  if  it  wished  to  claim  the  benefit 


STREET   RAILWAYS,  201. 


449 


% 


r 


of  both  statutes.  Mayor,  ett.,  oj  N.  Y.  v. 
Dry  Dock,  E.  U.  5-  B.  R.  Co,,  yj  Am.  &*  Eng. 
R.  Cas.  41  >.  tiiN.  y.  137.  19  ^-  E.  Rep. 
430,  ao  A'.  Y.  S.  R.  336;  affirmiiig  47  Hun 
199, 13  A'.  Y.  S.  R.  396.— Following  Mayor, 
etc.,  of  N.  Y.  V.  Broadway  &  S.  A.  R.  Co., 
97  N.  Y.  275 

A  provision  in  the  charter  of  a  street-car 
company  that  the  "  company  shall  also  pay 
such  license  for  each  car  run  by  said  com- 
pany as  is  now  paid  by  other  passenger-rail- 
way companies  "  does  not  import  u  contract 
that  the  company  shall  never  be  required 
to  pay  a  license  fee  greater  than  that  re- 
quired of  other  companies  at  the  date  when 
the  company  was  incorporated.  Union 
Pass.  R.  Co.  V.  Philadilphia,  loi  U.  S.  528 ; 
affirming  83  Pa,  St.  429, 1 5  Am.  Ry.  R*p.  431. 

Where  a  street-car  company  is  chartered 
with  a  provision  that  it  shall  annually  pay  a 
certain  license  tax  to  the  city  on  each  car 
run,  and  the  state  Constitution,  in  force  at 
the  time,  reserves  to  the  state  the  right  to 
alter  or  amend  charters,  a  subsequent  legis- 
lature may  increase  the  license  tax.  Union 
Pass.  R.  Co.  V.  Philadtiphia,  loi  U.  S.  528; 
affirming  83  Pa.  St.  429, 1 5  Am.  Ry.  Rep.  431. 

A  bond  executed  by  a  street-railway  com- 
pany to  a  city,  for  the  faithful  observance 
of  an  ordinance,  imposing  a  license  of  five 
dollars  on  each  car,  is  not  such  a  contract 
as  to  prevent  the  city  from  afterwards  in- 
creasing the  amount  of  the  license.  John- 
son v.  Philadelphia,  60  Pa.  St.  445. 

The  charter  of  a  street  railway  made  it 
liable  to  the  city  for  such  license  tax  on 
each  car  as  was  fixed  by  ordinance,  which 
was  then  thirty  dollars.  Afterwards  a  law 
was  passed  making  the  tax  fifty  dollars,  and 
extending  to  street  railways  certain  immu- 
nities, on  condition  that  they  accept  the 
provisions  of  the  act.  Held,  that  payment 
of  the  increased  tax  for  seven  years  raised  a 
legal  presumption  of  acceptance.  Union 
Pass,  R.  Co.  V.  Philadelphia,  83  Pa.  St. 
429,  15  Am.  Ry.  Rep.  431 ;  affirmed  in  101 
U.  S.  528.— Explained  in  Frankford  & 
P.  Pass.  R.  Co.  V.  Philadelphia,  $8  Pa. 
St.  119. 

Under  Wis.  Act  of  i860,  ch.  313,  as 
amended  by  Rev.  St.  of.  1862,  §  1862,  pro* 
viding  that  street  railroads  shall  pay  an 
annual  license  fee  such  "  as  the  proper  mu- 
nicipal authorities  may  from  time  to  time 
prescribe,"  a  municipality  may  increase  the 
license  fee  imposed  upon  a  company  before 
the  adoption  of  the  Revised  Statutes.  State 
7  D.  R.  D.— 39 


ex  rei  v.  Hilbert,  36  Am.  &»  Et^.  Jt.  Cm. 
118,  7a  W".  184,  39  JV.  W.  Rep.  336. 

It  seems  that  a  municipal  ordinance 
granting  a  franchise  to  a  company,  and  pro« 
viding  that  before  any  car  shall  be  used  no 
said  railway  the  company  shall  pay  to  the 
city  a  license  fee  of  a  curtain  amount  per 
annum  for  each  car,  does  not  prohibit  the 
municipal  authorities  from  afterwards  in- 
creasing or  diminishing  the  amount  of  such 
license  fee.  State  ex  ret.  v.  Hilbert,  36  Am. 
&>  Eng.  R.  Cat.  118,  71  Wis.  184,  39  A'.  IV. 
Rep.  326. 

201.  Tax  on  each  car.— Where  a  fran- 
chise for  a  street  railroad  has  been  granted 
upon  condition  of  the  payment  of  the  "  an- 
nual license  fee  for  each  car  now  allowed  by 
law,"  and  at  that  time  an  ordinance  existed 
imposing  license  fees  upon  each  "accom- 
modation coach"  or  "stage  coach,"  the 
company  is  liable  for  the  payment  of  the 
license  fee  imposed  by  the  ordinance  for 
each  street-car  owned  and  operated  by  it. 
Mayor,  etc.,  of  N.  Y.  v.  Third  Ave.  R.  Co., 
40  Am.  6^  Eng.  R.  Cas.  278,  117  N.  Y.  404, 
22  N.  E.  Rep.  755,  27  A'.  Y.  S.  R,  170;  a/- 
firming  16  N.  Y.  S.  R.  122,  i  A'.  Y.  Supp.  397. 

Where  a  company  accepts  a  charter  pro- 
viding that  it  shall  pay  to  the  city  the  same 
license  fee  annually  "  for  each  car  *  *  *  as 
is  now  paid  by  other  city  railroads  in  said 
city,"  it  is  estopped  by  the  act  of  acceptance 
from  questioning  the  validity  of  the  provi- 
sion, when  sued  to  recover  the  license  fee. 
Mayor,  etc.,  of  N.  Y.  v.  Broadway  &*  S.  A, 
R.  Co.,  17  Hun  {JV.  Y.)  242.— Reviewing 
Mayor,  etc.,  of  N.  Y.  v.  Second  Ave.  R.  Co., 
32  N.  Y.  261 ;  Mayor,  etc.,  of  N.  Y.  v.  Third 
Ave.  R.  Co.,  33  N.  Y.  42. 

The  above  provision  that  the  companjr 
should  pay  the  same  license  fee  "as  is  now 
paid  by  other  city  railroads"  meant  the 
same  fee  as  then  established  by  ordinance ; 
and  it  was  immaterial  to  the  defendant  that 
two  other  companies,  by  contract  with  the 
city,  paid  nothing.  Mayor,  etc.,  of  N.  Y.  v. 
Broadway  &*S.A.R.Co.,i7  Hun  {N.  Y.)\2^2. 

A  provision  in  defendant's  charter  re- 
quired it  to  pay  to  the  city  the  same  license 
fee  on  each  car  as  then  paid  by  other  com- 
panies. At  the  time  an  ordinance  was  in 
force  requiring  other  companies  to  pay  fifty 
dollars  annually,  except  for  small  one-horse 
cars,  which  paid  twenty-five  dollars.  Held, 
that  the  fee  so  to  be  paid  was  predicated 
upon  the  size  of  the  cars ;  and  a  car  which 
was  known  at  the  time  as  a  one-horse  pat* 


450 


STREET   RAILWAYS,  202-200. 


ill 


■!l 


V  )    ' 


1^1 

ft 


senger  car  was  lubject  to  the  payment  of 

only  twenty-five  dollars,  though  it  might  be 
drawn  by  more  than  one  horse.     It  was  the 

cars  that  were  taxed,  and  not  the  motive 
power.  Mayor,  *tc.,o/ N.  K.  v.  Twtnty-third 
at.  K.  Co.,  4»  N.  Y.  S.  J<.  433,  6j  Huh  545, 
17  AT.  Y.  Hupp.  32. 

202.  DVlieu  company  liable  for 
both  lloenMO  and  ad  viilorcm  tax.— 
The  payment  to  a  city  of  a  tax  or  license  of 
twenty-five  dollars  on  each  car  employed  by 
acompany,  as  required  by  a  contract  between 
the  company  and  the  city,  in  which  ceruin 
franchises  are  secured  to  the  company,  does 
not  exonerate  it  from  the  payment  of  an  ad 
valortm  tax  on  its  property,  horses,  stables, 
etc.  LouisvilU  City  R.  Co.  v.  Louisville,  4 
Smh  (Ky.)  478. 

By  one  section  of  a  city  ordinance  there 
was  granted  to  a  company  the  exclusive 
privi'ege  of  constructing  and  operating  a 
street  railway  over  certain  streets,  and  by 
another  section  it  was  provided  that  the 
company  should  pay  into  the  city  treasury 
"the  sum  of  ten  dollars  annually  for  each 
and  every  car  run  and  operated  upon  said 

v  railway."  Held,  that  the  ten  dollars  per  car 
was  in  no  sense  a  tax,  but  a  bonus  for  the 
franchise  granted  to  the  company,  and 
therefore  a  clause  of  the  city  charter  pro- 
viding that  "  merchants  and  others  paying 
a  license  or  specific  tnx  on  their  business  or 
calling  shall  be  exempt  from  an  ad  valorem 
tax  thereon  "  does  not  exempt  the  company 
from  the  payment  of  an  ad  valorem  tax. 
Newport  v.  South  Covington  &*  C.  St.  R.  Co., 
89  Ky.  29,  1 1  S,  IV.  Rep.  954. 

203.  Penalty  for  fallliiir  to  obtain 
license.  — Where  a  city  ordinance  makes 
it  unlawful  for  any  person  or  firm,  as  well 
as  a  corporation,  to  run  street-cars,  without 
procuring  a  license  and  paymg  a  tax,  the 
general  manager  of  a  street-car  company, 
who  is  actually  engaged  in  running  cars 
and  operating  a  street  railroad  which  has 
not  paid  the  license  tax,  may  be  arrested 
and  punished  for  such  failure.  A  corpora- 
tion can  only  act  through  its  agents,  and 
the  agent  cannot  escape  liability  on  the 
ground  that  the  ordinance  did  not  impose 
the  duty  of  paying  the  tax  on  him,  but  on 
the  company.  Wyandotte  v.  Corrigan,  35 
Kan.  21,  10  Pac.  Rep.  99. 

3.  Assessments  for  Local  Improvements. 

204.  Generally.— The  track  of  a  street 
railway,  laid  in  the  usujI  manner,  is  so  at- 


tached to  the  soil  as  to  become  realty  and 
liable  to  be  assessed  for  the  cost  of  paving 
the  street.  New  Haven  v.  Fair  Haven  &• 
W.  R.  Co.,  38  Conn.  422,  3  Am.  Ry.  Rep.  230. 

Street  railways  occupy  public  streets  sub- 
ject to  their  use  by  the  public,  and  to  such 
burdens  as  may  be  made  necessary  by  reason 
o(  their  improvetncni,  and  to  such  changes 
in  the  construction  of  their  ruadbcds  as 
improved  and  changed  conditions  may 
demand.  Detroit  v.  Ft.  Wayne  &*  E.  R. 
Co.,  50  Afn.  &*  Eng,  R,  Cos,  447,  90  AficA. 
646,  SI  A'.  W.  Rep.  688. 

205.  FrancIilHo  and  right  of  way 
may  bo  aMHOHHod.  —  The  right  of  way. 
right  of  occu|)ancy,  franchise,  and  interest 
of  a  street  railway  are  property,  and  as  such 
are  liable  to  be  assessed  for  benefits  in  widen- 
ing the  street.  Chicago  City  R.  Co.  v.  Chi' 
(ago,  90  ///,  573.  —  yuoTiNO  Chicago  v. 
I3aer,  41  III.  306. 

And  if  the  assessment  is  not  paid  the 
property  may  be  sold.  Little  v.  Chicago,  46 
///.  App.  534. 

200.  AH80H(iing  nccordliifir  t<>  bone- 
fltH  received.— A  company,  whose  track 
ran  through  the  main  street  of  a  borough, 
was  required  by  its  charter  to  keep  in  repair 
the  part  of  the  street  occupied  by  its  track 
and  two  feet  on  each  side.  The  borough 
charter  provided  that,  upon  any  street  being 
improved,  certain  officials  of  tlic  borough 
should  have  power  to  determine  what  "  land 
and  buildings  "  would  be  specially  benefited 
by  the  improvements,  and  to  assess  the 
persons  interested  in  such  land  or  buildings 
such  part  of  the  cost  as  they  should  judge 
reasoniible.  The  company  neglecting  to 
keep  in  repair  its  part  of  the  street,  the 
borough,  in  paving  the  street  with  stone, 
paved  about  1500  feet  of  the  space  that 
the  company  was  bound  to  repair,  at  a 
cost  of  $1992.  In  making  an  assess* 
ment  on  the  "  land  and  buildings,"  the 
officials,  and  afterwards  a  committee  ap- 
pointed by  the  court  on  appeal,  assessed 
the  entire  sum  on  the  company.  Held: 
(1)  that  the  question  waj  to  be  determined 
by  the  borough  charter,  and  not  by  the 
charter  of  the  company  imposing  on  it  the 
duty  of  keeping  the  street  in  repair ;  (2) 
that  the  question  was  simply  whether  the 
company,  through  the  enhanced  value  of 
its  "  land  and  buildings,"  received  such  a 
special  benefit  as  to  be  liable  to  be  assessed 
for  the  improvement ;  (3)  that  the  franchise 
of  I  lie  company  could  not  be  regarded  as 


STREET  RAILWAYS,  297,  208. 


451 


covered  by  that  term,  and  that  it  wat  not 
enough  that  it  was  increased  in  value  by  the 
improvement;  (4)  that  the  fact  that  the 
improvement  had  cost  a  certain  sum  could 
not  fix  that  as  tne  amount  of  the  assess- 
ment, if  the  company  had  property  liable  to 
the  assessment,  as  the  legal  liability  of  the 
company  to  the  borough  for  the  money 
expended  for  it  by  the  latter  had  nothing 
to  do  with  the  matter.  Farmers'  L.  &*  T, 
Co.  v.  Amonia,  61  CV//M.76,  23  Att  Ktp.  705. 

The  right  of  a  street-railway  company  to 
occupy  and  use  a  part  of  a  street  for  the 
purpose  of  its  road  is  property  which  may 
be  benefited  by  paving  the  street ;  and  it 
should  contribute  its  share  to  the  cost  of  the 
pavement,  in  proportion  to  the  benefits 
received.  Chicago  v.  Batr,  41  ///.  306, — 
MoDiFrRO  IN  Parmeiee  v.  Chicago,  60  III. 
267.  Quoted  in  Chicago  City  R.  Co.  v. 
Chicago, 90 III.  573.  Reviewed  in  Ludlow 
V.  Cincinnati  Southern  R.  Co.,  7  Am.  & 
Eng.  R.  Cas.  231,  78  Ky.  357 ;  In  re  Cedar 
Park,  I  How.  Pr.  N.  S.  (N.  Y.)  257. 

A  company  had  a  double  track  in  a 
street,  and  neither  the  spaces  between  the 
rails  nor  the  spaces  between  the  tracks 
were  paved  nor  contracted  to  be.  Held, 
that  the  board  of  public  works  might  fairly 
be  of  the  opinion  that  the  company  was 
not  benefited  by  the  paving  of  the  rest  of 
the  street,  and  therefore  might  properly  re- 
frain from  assessing  the  company  towards 
the  expense  thereof.  State  ex  rel.  v.  Ramsey 
County  Dist.  Court,  32  Minn.  181,  19  A^.  W. 
Rep.  732- 

207.  Enforcin^r  claim  —  Jurlsdlc- 
tlou— Estoppel.  —  The  acceptance  by  a 
company  of  its  franchise,  granted  by  a  city 
under  an  ordinance  providing  that  when 
any  part  of  the  street  over  which  the  road 
should  run  should  be  ordered  improved 
or  reimproved  the  company  should  be  held 
for  the  payment  of  its  pro  rata  share  of  the 
cost  thereof,  the  cost  to  be  assessed  and 
collected  in  the  same  manner  as  other  street 
assessments,  and  to  be  a  lien  upon  its  road- 
bed, rolling  stock,  (Tnd  franchise,  is  equiva- 
lent to  an  express  agreement  by  the  com* 
pany  to  pay  its  proportion  ot  the  cost  of 
whatever  improvement  of  the  street  the 
city  should  order,  whether  ordered  under 
its  then  existing  charter  or  under  a  subse- 
quent act  of  the  legislature  authorizing  such 
improvements,  and  the  cost  of  the  same 
may  be  collected,  in  the  manner  provided 
for  the  collection  of  other  street  assess- 


ments, at  the  time  of  the  improvement. 
Schmidt  V.  Market  St.  &*  tV.  G.  R.  Co..  90 
Cat.  37.  27  Pac.  Rep.  61. 

Under  such  ordinance,  the  liability  of  the 
company  is  not  limited  to  payment  to  the 
city  for  the  improvement,  but  it  may  be 
held  liable  to  the  person  entitled  to  make 
the  collection  .  and  if  the  manner  of  collect- 
ing other  street  assessments  is  by  a  suit  by 
the  contractor  in  his  own  name  to  recover 
an  assessment,  that  mode  may  be  pursued 
against  the  company.  Schmidt  v.  Market 
St.  &*  IV.  G.  R.  Co.,  90  Cat.  37,  27  Pac. 
Rep.  6(. 

An  action  of  debt  will  lie  to  enforce  pay- 
ment of  an  assessment  against  a  street-car 
company  for  paving  the  street,  notwith- 
standing the  charter  of  the  city,  which 
authorizes  the  assessment,  provides  that  it 
shall  constitute  a  lien  on  the  property  as- 
sessed. The  lien  is  only  additional  security, 
and  does  not  prevent  a  remedy  at  law.  New 
Haven  v.  Fair  Haven  &*  IV.  R.  Co.,  38 
Conn.  422.  3  Am.  Ry.  Rep.  230. 

In  such  case  the  city  charter  also  provided 
that  any  person  aggrieved  by  an  assessment 
might  appeal  to  the  superior  court.  Held, 
that  the  company  might  raise  the  question 
of  the  want  of  jurisdiction  in  the  city  to 
make  the  assessment,  in  an  action  at  law  to 
enforce  the  assessment,  and  was  not  con- 
fined to  the  remedy  by  appeal.  New  Haven 
V.  Fair  Haven  &*  IV.  R.  Co.,  38  Conn.  422.  3 
Am.  Ry.  Rep.  230. 

Where  a  company  stands  by  and  allows 
the  city  to  pave  a  street  on  which  its  track 
is  laid,  with  full  knowledge  of  the  fact,  and 
that  It  will  be  expected  to  pay  its  share  of 
the  cost  of  the  pavement,  but  without  ob- 
jections, it  is  estopped,  when  sued  for  its 
share  of  the  cost  of  the  pavement,  from  set- 
ting up  as  a  defense  that,  under  its  charter, 
it  was  required  to  pave  the  street  itself  at 
its  own  expense.  New  Haven  v.  Fair  Ha- 
ven &*  IV.  R.  Co.,  38  Conn.  422,3  Am.  Ry. 
Rep.  230.  —  Followed  in  Columbus  v. 
Columbus  St.  R.  Co..  32  Am.  &  Eng.  R. 
Cas.  292, 45  Ohio  St.  98.  Reviewed  in  Re 
Cedar  Park,  i  How.  Pr.  N.  S,  (N.  Y.)  257. 
'  208.  Liability  for  widening  street. 
—A  company  was  exempt  from  assess- 
ment for  grading,  paving,  macadamizing, 
filling,  or  planking  the  streets  or  parts  of 
streets  upon  which  it  should  construct  its 
railways.  Held,  that  this  did  not  exempt  it 
from  assessment  to  defray  the  expense  of 
widening  the  streets  upon  which  its  railways 


462 


STREET  RAILWAYS,  299-301. 


It 


lit 


were  constructed.    Parmtke  v.  Chicago,  60 
///.  267. 
299.  When  company  not  liable.— 

Where  a  section  of  a  city  charter  is  in  con- 
flict with  the  Constitution  of  the  state,  and 
is  therefore  void,  a  company  cannot  be 
compelled  to  contribute  to  the  improve- 
ment  of  a  street  on  which  ^ts  railroad  is 
built,  in  the  manner  prescribed  by  such 
section.  Mayor,  etc.,  ctf  MjbiU  v.  Royal  St. 
R.  Co.,  45  A/a.  32a.  —  Following  Mayor, 
etc.,  of  Mobii<;  v.  Dargan,  45  Ala.  310. 

A  company  in  such  city  cannot  be  com- 
pelled to  pay  any  sum  as  a  contribution  or 
assessment  to  defray  the  expenses  of  paving 
the  streets  on  which  its  road  is  built,  under 
the  second  section  of  the  act  authorizing  the 
rtnstruction  of  street  railroads  (Ala.  Acts 
1S5Q-60,  pp.  261,  262),  unless  said  company 
has  incurred  fines  to  the  amount  of  such 
assessment  under  such  .ict.  Mayor,  etc.,  of 
Mobile  V.  Royal  St.  R.  Co.,  45  Ala.  322. 

A  company  having  a  right  of  way  for  its 
track  over  a  street  cannot  be  taxed  for  the 
cost  of  an  improvement  of  the  street  undet 
Iowa  Code,  §  466.  Koons  v.  Lucas,  52  Ivwa 
177.  yN.  W.  Rep.  84. 

A  city  charter  provided  that  one  half  of 
the  expense  of  paving  streets  should  be  paid 
by  the  city,  and  the  other  half  assessed  upon 
the  property  benefited.  The  council  passed 
a  resolution  to  pave  a  certain  street,  and 
provided  that  if  it  was  not  done  by  the 
abutting  owners  within  a  specified  time  it 
should  be  done  by  the  city,  "and  appor- 
tioned and  assessed  pursuant  to  law."  The 
city  made  the  improvement  and  assessed 
one  third  of  the  cost  to  the  city,  one  third 
against  the  abutting  owners,  and  a  like 
amount  against  a  street-ca^  company  which 
had  a  track  on  the  street,  which  assessment 
against  the  company  was  claimed  to  be 
made  under  an  agreement  that  the  company 
had  entered  into  with  the  city,  upon  obtain- 
ing  a  license  to  use  the  street.  Held,  that 
the  assessment  should  have  been  divided 
into  two  equal  parts,  one  of  which  should 
have  been  charged  to  the  city  and  the  other 
against  the  company  and  the  abutting  prop- 
erty owners  benefited.  The  resolution  to 
improve  the  street  showed  an  intention  to 
make  the  assessments  under  the  city 
charter,  and  not  under  any  agreement  with 
the  company,  and  the  intention  could  not 
afterward*,  be  changed.  People  ex  rtl.  v. 
Coffey,  48  A^.  Y.  S.  R.  882,  66  Huh  160.  21 
N,  Y.  Supp.  34. 


A  company,  authorized  by  its  charter  to 
construct  and  maintain  a  railway  upon  a 
certain  street,  is  not  liable,  under  a  munici- 
pal by-law  requiring  it  "  to  keep  the  road- 
way between  rails,  and  twelve  inches  on 
each  side  thereof,  paved,  macadamized,  or 
graveled,  as  the  case  may  be,  so  as  to  suit 
the  kind  of  paving  used  in  the  streets 
through  which  their  lines  run,"  to  contrib- 
ute to  the  cost  of  a  new  pavement  laid  down 
by  the  city  over  the  street,  including  the 
portion  that  the  company  was  bound  to 
keep  in  order.  Montreal  v.  Montreal  St.  R, 
Co.,  3  Montr.  Super.  320. 

The  laying  of  new  pavements,  like  the 
making  of  the  street  itself,  is  a  permanent 
improvement,  which  is  solely  at  the  charge 
of  the  city,  and  to  which  the  company  is 
not  bound  to  contribute.  Montreal  v.  Mon- 
treal St.  R.  Co.,  3  Montr.  Super.  320. 

300.  Conipauy  required  to  im- 
prove between  rails  not  farther  lia- 
ble.— Where  a  company  is  bound  to  pave 
and  keep  in  repair  a  portion  of  a  street  that 
it  occupies  for  tracks,  it  cannot  be  further 
assessed  for  the  cost  of  paving  the  remain- 
der of  the  street.  Chicago,  R.  1. 6-  P.  R.  Co. 
V.  Chicago,  {III.)  ij  N.  E.  Rep.  926.— FOL- 
LOWING Parmelee  v.  Chicago,  60  111.  267. 

301.  Power  of  New  York  city  to 
assess  under  act  of  1882.  —  By  the 
charter  of  New  York  city  (ch.  410,  Laws  of 
1882),  no  power  is  given  to  themunici{>ality 
to  assess  the  property  of  a  street-railroad 
company  for  an  improvement  of  a  street 
through  which  the  road  runs.  The  power 
given  by  it  to  the  board  of  assessors  (section 
868)  to  assess  for  that  purpose  "upon  the 
property  benefited  in  the  manner  authorized 
by  law  "  is  limited  (section  878)  to  the  houses 
and  lots  benefited,  and  upon  the  owners 
find  occupants  of  these  alone  can  the  assess- 
ment be  imposed.  People  ex  rel,  v.  Gilon,  1 26 
N.  y.  147.  27  A^.  E.  Rep.  282,  37  A^.  K.  S.  R. 
17  ;  reversing  liHun  76.  33  A^.  Y.  S.  R.  838, 
1 1  A'.  Y.  Supp.  439.— Distinguishing  Gil- 
more  V.  Utica,  12!  N.  Y.  561. 

The  provision  of  said*charter  (section  899) 
included  in  the  title  (3)  in  reference  to  "va- 
cating and  modifying  assessments,"  which, 
after  providing  that  certain  specified  omis- 
sions and  defects  shall  not  be  sufficient  rea- 
son for  vacating  or  setting  aside  an  assess- 
nr  'nt,  declares  that  "  all  property  in  said 
rty  benefited  by  any  improv<;ment  •  *  • 
shall  be  liable  to  assessment  for  such  im- 
provement," was  not  intended  to  introduce 


1 1 

i  ( 

t 

li 


STREET  RAILWAYS,  902-904. 


463 


f 


I 


a  new  clan  of  subjects  for  taxation,  or  to 
extend  the  power  given  by  the  preceding 
provisions ;  it  applies  only  to  such  property 
as  had  previously  been  defined,  and  such  as 
the  municipal  authorities  were  permitted  to 
assess.  People  ex  rel.  v.  Gilon,  126  N.  V. 
147,  27  A^.  E.  Rep.  282,  37  N.  V.  S.  R.  17  ; 
rei>ersing  58  Hun  76,  33  N.  Y.  S.  R.  838,  11 
N.   V.Supp.439. 

In  proceedings  by  f/r//<w-<ir/ to  review  an 
assessment  for  a  street  improvement  in  said 
city,  based  upon  the  ground  that  the  prop- 
erty of  a  surface-railroad  company,operating 
its  road  upon  said  street,  was  property  bene- 
fited, and  so  liable  to  assessment,  but  was 
omitted,  the  record  contained  no  evidence 
tending  to  show  that  it  was  benefited,  and 
the  board  of  assessors  returned  that  it  was 
not.  NeM,  that  the  burden  was  upon  the 
relator  to  show  that  the  property  was  bene- 
fited ;  that  the  question  was  one  of  fact  to 
be  determined  by  the  board  of  assessors, 
and  in  the  absence  of  evidence  in  the  record 
its  determination  could  not  be  reviewed  by 
the  general  term.  People  ex  rel.  v.  Gilon, 
126  A'.  Y.  147.  27  N.  E.  Rep.  282,  37  A^.  Y. 
S.  R.  17 ;  reversing  58  Hun  76,  33  N.  Y.  S. 
/»'.  838,  1 1  A^.  Y.  Supp.  439. 

It  seems,  also,  that  the  determination  of 
said  board  could  not,  in  any  event,  be  re- 
viewed upon  a  certiorari,  except  for  errors 
of  law.  (N.  Y.  Code  Civ.  Pro.  §  2140.) 
People  ex  rel.  v.  Gilon,  126  A'.  Y.  147,  27  A'. 
E.  Rep.  282,  37  A^.  Y.  S.  R.  17;  reversing 
58  Hun  76,  33  A^.  Y.  S.  R.  838.  11  A^.  K. 
Supp.  439- 

302.  How  far  validity  ofaNHessment 
of  property  owuer  is  uifectcd  by  fail- 
ure to  assesH  company.— An  ordinance 
of  a  city  authorized  it  to  assess  twp  thirds 
of  the  cost  of  paving  a  street  upon  the 
property  holders  who  were  especially  bene- 
fited thereby,  after  deducting  the  amount 
required  of  a  street-railway  company.  The 
city  paved  only  the  middle  portion  of  a 
street,  not  including  the  portion  where  the 
track  was  laid,  and  only  assessed  the  prop- 
erty owners  five  eighths  of  the  required  two 
thirds,  and  did  not  assess  the  street-car 
company  at  all.  Helil,  that  the  property 
owners,  under  the  circumstances,  could  not 
complain  that  the  company  was  not  assessed. 
liiwdilch  v.  Neiv  Haven,  40  Conn.  503. 

It  is  no  objection  to  the  validity  of  a  city 
ordinance  authorizing  the  repaving  of  a 
street,  llic  cost  of  which  Is  to  l)c  iisscsscd 
upcn  the  owners  of  tlic  prupcity   LiiKiiiii; 


thereon,  that  it  does  not  provide  that  a  pas- 
senger-railway company,  which  is  required 
by  its  charter  to  keep  its  track  and  two  feet 
on  each  side  in  thorough  repair,  should  be 
assessed  for  its  proportion  of  the  cost  of 
repaying  such  street,  on  which  its  tracks 
are  laid.  Mayor,  etc.,  of  Baltimore  v.  Scharf, 
10  Am.  &*  Eng.  R.  Cas.  341,  54  Md.  499. 

Where  a  street-car  company  is  required 
Xc^  pave  and  keep  in  repair  a  certain  portion 
of  ^  street,  a  failure  of  the  city  authorities 
to  ast  ess  the  company  therefor  is  such  error 
as  wil  I  enable  a  property  owner,  whose  as- 
sessn-.ent  is  thereby  increased,  to  have  the 
assef<sment  set  aside.  In  re  Appleby,  26  Hun 
(N.  Y.)  427.— Not  followed  in  Gilmore  v. 
Utica,  43  Am.  &  Eng.  R.  Cas.  225,  121  N.  Y. 
561,  24  N.  E.  Rep.  1009,  31  N.  Y.  S.  R.  880. 

Even  if  a  company  be  under  obligation, 
by  the  statute  under  which  It  is  organized, 
to  repave  the  streets  between  its  tracks, 
and  therefore  ought  to  bear  some  portion 
of  the  expense  of  a  pavement  ordered  by 
the  city,  the  failure  of  the  city  to  enforce 
the  liability  of  the  company  does  not  render 
illegal  an  assessment  imposing  two  thirds  of 
the  expense  upon  the  abutting  property 
owners  and  one  third  upon  the  city.  Gil- 
more  V.  Utica,  43  Am,  &*  Eng.  R.  Cas.  225, 
121  A'.  Y.  561,  24  N.  E.  Rep.  1009,  31  A'.  Y. 
S.  R.  880 ;  reversing  55  Hun  514,  29  A^.  Y.  S. 
R.  781,  5  A"  V.Supp.  912.— Not  foli.ow- 
iNu  In  r'j  Appleby,  26  Hun  427. — Distin- 
guished IN  People  ex  rel.  v.  Gilon,  126 
N.  Y.  147. 

303.  Constitutional  provisions  as 
to  equal  ad  valorem  taxes  construed. 
— A  provision  in  a  state  Constitution  that 
taxes  shall  be  levied  so  that  each  person 
shall  pay  in  proportion  to  the  value  of  his 
property,  and  that  municipal  taxes  shall  be 
uniform  in  respect  to  persons  and  property, 
does  not  prevent  a  legislature  from  author- 
izing a  street  railway  to  use  streets,  on  con- 
ditions imposed  by  the  city,  whereby  the 
company  is  exempt  from  assessments  to  pay 
cost  of  grading  and  paving  the  streets. 
Chic  age  V.  Sheldon,  9  Wall.  (U.  S.)  50.— 
Approving  Illinois  C.  R.  Co.  v.  McLean 
County,  17  111.  291  ;   Hunsaker  v.  Wright, 

30  111.  146;  Neustadt  7'.  Illinois  C.  R.  Co., 

31  111.  484.  DiSTiNGUiSHFNG  Chicago  v. 
Larncd,  34  III.  203;  Chicago  v.  Baer,  41 
III.  306. 

:I04.  Impairing  obligation  of  con- 
inu't  by  increasing  assessment.— 
Iowa  Code,  §  1090,  provides  that  the  fran« 


m? 


V 


I 


11! 


i 


<!'  J! 


Ilii 


454 


STREET  RAILWAYS,  305-810. 


chises  of  corporations  thereafter  created 
•hall  be  subject  to  such  conditions  as  the 
legislature  may  impose  as  necessary  (or  the 
public  good.  Under  this  provision,  a  city 
may.  by  ordinance,  require  a  street-railway 
company  to  pave  the  street  outside  uf  its 
rails,  although  such  company  had  con- 
structed its  track  under  an  ordinance  giving 
to  it  the  right  to  operate  its  road  upon  the 
condition  that  it  pave  the  street  between 
the  rails  only.  The  construction  of  the 
road  under  the  first  ordinance  did  not  con- 
stitute a  contract  between  the  company  and 
the  state  or  the  city  the  obligation  of  which 
was  impaired  by  the  laying  of  a  special  tax 
against  the  company  for  the  cost  of  paving 
outside  the  rails.  Sioux  CHy  St.  R.  Co.  v. 
Sioux  City,  46  Am.  6-  Eng.  R.  Cas.  169,  138 
U.  S.  98.  1 1  Sup.  Ct.  Rep.  226 ;  affirming  40 
Am.  &'  Eng.  R.  Cas.  275,  78  Iowa  367.— 
Distinguishing  Des  Moines  v.  Chicago, 
R.  [.  &  P.  R.  Co.,  41  Iowa  s^ :  Burlington 
V.  Burlington  St.  R.  Co.,  49  Iowa  144.— Dis- 
tinguished IN  Western  ^  Sl  S.  Co.  v. 
Citizens'  St.  R.  Co.,  46  Am.  &  Eng.  R.  Cas. 
176.  128  Ind.  525. 

UL  P0WEB8,  DUTIES,  AHD  LIABIIITIS8  AS 

BI8FS0TS  THE  MANAOEMSHT  OV 

THE  BOAS. 

I.  Under  the  Contract  to  Carry, 

305.  Coinmou-Iaw  liability.— Street- 
railway  companies  are  common  carriers  of 
passengers,  and  are  liable  as  other  com- 
mon carriers  upon  common-law  principles. 
Sfiellman  v.  Lincoln  Rapid  Transit  Co.,  58 
Am.  &*  Eng.  R.  Cas.  297.  36  Ne6.  890, 55  A^. 
IV.  Rep.  270. 

So  in  determining  the  liability  of  a  street- 
car company  foi  an  injury  to  a  passenger, 
the  question  turns  upon  the  degree  of  care 
due  from  a  common  carrier  to  its  p^ssiugers. 
Spel/man  v.  Lincoln  Rapid  Fransit  Co.,  58 
Am.  &'Eng.  R.  Cas.  297.  36  Neb.  890,  55  M 
W.  Rep.  270. 

300.  Fixing  fare  and  maltingr 
clian((n.— A  passenger  on  a  street-car  is 
not  bound  to  tender  the  exact  amount  of  his 
fare,  but  may  tender  any  reasonable  sum, 
and  the  conductor  must  furnish  change. 
Five  dollars  is  not  an  unreasonable  amount 
to  tender.  Barrett  v.  Market  St.  R.  Co.,  40 
Am.  &*  Etig.  R.  Cas.  671,  81  Cat.  296,  22 
Pac.  Rep.  859.  —Distinguishing  Fulton  v. 
Grand  Trunk  R.  Co.,  17  U.  C.  Q.  B.  428. 


Below  that  limit  fixed  by  law  at  a 
maximum,  a  company  can  exercise  its  own 
discretion  as  to  the  amount  of  fare  or  any 
discount  on  the  same.  Baltimore  &*  V. 
Turnpike  Road  v.  Boont,  45  Md.  344. 

307.  Penalty  for  overcharge.— The 
practical  effect  of  the  Cal.  statute  of  1863  in 
relation  to  street  railroads  is  to  provide  that 
each  separate  cause  of  action  or  separate 
forfeiture  for  overcharges  upon  tickets  pur- 
chased shall  be  prosecuted  or  enforced 
separately.  Smith  v.  Omnibus  R.  Co. ,  36  Cal. 
281.— Following  Reed  v.  Omnibus  R.  Co., 
33  Cal.  212. 

308.  UuJust  discriminatiou  as  to 
fareH.— Only  such  discriminations  as  are 
unjust,  unreasonable,  or  oppressive  are  un- 
lawful. Therefore  where  a  city  in  granting 
to  a  company  a  franchise  provides  that  it 
may  charge  a  certain  fare  to  a  certain  point 
ill  the  city,  and  that  beyond  that  it  shall  sell 
ten  tickets  for  fifty  cents  "to  actual  resi- 
dents," while  all  others  are  to  be  charged 
ten  cents,  the  discrimination  thus  forced 
upon  the  company  is  not  unlawful.  Forman 
V.  New  Orleans  &*  C.  R.  Co.,  36  Am.  &•  Eng. 
R.  Cas.  38, 40  La.  Ann.  446, 4  So.  Rep.  246.— 
Quoting  Hays  v.  Pennsylvania  Co.,  12  Fed. 
Rep.  311. 

300.  Limiting  Hiee  of  pae!:!tqreH 
that  may  be  carried  011  can*.— Plain- 
tiff took  passage  on  one  of  defendant's  cars, 
paying  the  usual  fare.  A  rule  of  the  com- 
pany imposed  an  extra  charge  for  each 
package  "  too  large  to  be  carried  on  the  lap 
of  the  passenger  without  incommoding 
others."  Plaintiff  carried  two  packages  of 
picture  frames  about  two  feet  in  length  and 
twenty  inches  wide,  and,  because  of  alleged 
refusal  to  pay  an  additional  charge  therefor 
or  to  leave  the  car  was  forcibly  ejected 
therefrom.  JMd,  that  the  question  as  to 
whether  the  package  came  within  the  rule 
was  one  o(  fact  for  tlie  jury ;  that  the  deter- 
mination of  the  conductor  in  reference 
thereto  was  not  conclusive.  Af orris  v.  Atlan- 
tic Ave.  R.  Co.,  40  Am  &*  Eng.  R.  Cas.  bTj, 
116  N.  Y.  552,  22  A'.  E.  Rep.  1097.  27  A'.  Y. 
S.  R.  667  :  reversing  $  N.  Y.  S.  R.  874. 

310.  Liability  for  Iomh  of  paolcngtv 
—  Plaintiff  sought  to  charge  a  street-car 
company  as  a  common  carrier  with  the  loss 
of  a  box  of  merchandise  which  he  placed  on 
the  front  platform  of  a  car,  and  for  that  pur- 
pose introduced  the  evident"  af  two  per- 
sons that  they  had  paid  monev  at  other 
times  to  conductors  for  the  purpose  of  trans- 


STREET   RAILWAYS,  311-315. 


465 


|a 

rn 

Ly 

IK 

ne 
iin 
at 
Ite 
ir- 
:d 
U. 
■o.. 


'  I 


porting  merchandise,  with  the  knowledge 
of  the  superintendent  of  the  road.  Held, 
that  the  evidence  was  proper  to  go  to  the 
jury,  and,  in  tlie  absence  of  anything  to 
contradict  it,  was  sufficient  to  warrant  the 
jury  in  finding  that  the  company  was  acting 
as  a  common  carrier.  Levi  v.  Lynn  &-  B. 
li.  Co.,  II  Allen  (Mass.)  300. 

In  such  case  it  was  proper  to  instruct  the 
jury  that  if  they  found  that  the  company 
was  a  common  carrier,  and  if  pla-ntiff's  box 
was  delivered  to  it  for  transportation,  and 
the  price  of  the  transportation  paid,  then  it 
wouM  be  liable  for  a  failure  to  deliver  the 
bux  Hi  its  place  of  destination.  Levi  v. 
Lynn  &*  B.  A\  Co.,  1 1  Allen  (Mass.)  300. 

If  the  company  was  proved  to  be  a  com- 
mon carrier,  the  law  would  supply  the  proof 
oi  Mie  contract,  so  far  as  regards  the  extent 
;i  u  degree  of  liability,  and  plaintiff  having 
proved  delivery  to  it,  and  a  loss,  the  burden 
was  then  shifted  to  the  carrier  to  dischar{>e 
itself  from  liability,  within  the  exceptions 
which  the  law  creates.  Levi  v.  Lynn&^B, 
R.  Co.,  1 1  Allen  (Mass.)  300. 

311.  Duty  to  adopt  new  iinprovc- 
lueuts.*— Wl:ere  the  charter  of  a  company 
is  silent  as  to  the  kind  of  rails  to  be  used, 
the  company  is  not  confined  to  the  kind  of 
rails  used  when  the  charter  was  granted,  but 
may  adopt  another  improved  rail.  Easton, 
S.  E.  &*  W.  E.  Pass.  R.  Co.  v.  Easton,  133 
Pa.  SI.  505,  19  Am.  .iit.  Rep.  658,  19^//. 
Rep.  486. 

Street  railways  must  be  constructed  and 
maintained  upon  the  most  approved  plans, 
and  by  the  use  of  the  common  and  approved 
means,  with  a  view  to  the  safety  and  con- 
venience of  the  public  traveling  on  the 
streets.  Fitts  v.  Cream  City  R.  Co..  15  Am. 
&*  Eng.  R.  Cas.  462,  59  Wis.  323.  18  iV.  W. 
Rep.  186.— QbOTiNO  VVooleyTA  Grand  St.  & 
N.  R.  C0..83N.  Y.  121. 

312.  KiKlit  to  make  rule  prohibit- 
ing riding  on  platform.— A  street-rail- 
road company  has  a  right  to  make  and 
enforce  a  rule  prohibiting  passengers  from 
riding  upon  the  platforms,  and  a  request  by 
a  conductor  to  a  passenger  to  come  inside 
is  a  notice  of  the  rule,  and  must  be  com- 
plied with.  Ft.  Clark  St.  R.  Co.  v.  Ebaugh, 
49  ///.  App.  582. 


•See  also  post,  330. 

Right  of  street-railway  companies  to  adopt 
new  improvements,  see  note,  25  Am.  St.  Rep. 
479- 


It  is  a  reasonable  regulation  of  a  street- 
railway  corporation,  which  it  has  the  right 
to  make,  that  passengers  shall  not  be  on 
the  front  platform  of  a  car.  Wills  v.  Lynn 
&'B.  R.  Co.,  2  Am.  5*  Eng.  R.  Cas.  27,  129 
Mass.  351. 

2.  Liability  for  Injuries  Caused  by 
Negligence,  Gener  '.Uy. 

313.  Liability  uot  affected  by 
grant  of  iVancliise.— The  granting  of  a 
franchise  by  the  electors  of  a  city  to  a  cor- 
poration to  build  and  operate  a  street  rail* 
way  in  the  streets  of  the  city  does  not 
exempt  the  company  from  liability  for  in- 
juries caused  by  its  negligence,  whether 
such  negligence  consists  in  the  improper 
and  careless  management  of  its  property, 
or  in  the  character  of  the  motive  power 
employed  in  propelling  its  cars.  Lincoln 
Rapid  Transit  Co.  v.  Nichols,  56  Am.  &• 
Eng.  R.  Cas.  584,  37  Neb.  332,  55  N.  W. 
Rep.  872. 

314.  Liability  for  negpligence  of 
servants.  —  Street-railway  companies  are 
not  liable  for  wilful  and  tortious  acts  of 
their  servants  committed  outside  of  the 
scope  of  their  employment.  Lafitte  v.  New 
Orleans,  C.  &*  L.  R.  Co.,  47  Am.  &*  Ettg.  R. 
Cas.  645,  43  La.  Ann.  34,  8  So.  Rep.  701. 

Such  companies  are  under  obligations  to 
cari-y  their  passengers  safely  and  properly, 
ai  d  to  treat  them  respectfully;  if  this  duty 
is  intrusttd  to  a  servant,  he  is  responsible 
foi  the  niarner  in  which  he  executes  the 
trust.  They  must  prote':t  their  passengers, 
not  only  from  violence  and  insults  of 
strangers,  but  a  fortiori  against  the  vio- 
lence and  insults  of  their  own  servants. 
Lafitte  v.  Ne7v  Orleans,  C.  6-  L.  R.  Co.,  47 
Am.  &•  Eng.  R.  Cas.  645,  43  La.  Ann.  34,  8 
So.  Rep.  701. 

N.  Y.  Rev.  St.  69s,  ch.  20.  entitled  "Of 
the  law  of  the  road,  and  the  regulation  of 
public  stages,"  is  not  applicable  to  street 
railways,  and  a  company  is  not  liable,  under 
section  6,  for  the  wilful  act  of  one  of  its  em* 
ployes.  Whittaker  v.  Eighth  Ave.  R.  Co.,  51 
A^.  Y.  295,  4  Am.  Ry.  Rep.  476 ;  reversing  $ 
Robt.  650.— Reconciled  in  Mayor  of  N. 
Y.  V.  Third  Ave.  R.  Co.,  3  N.  Y.  S.  R.  181. 

315.  Street-car  not  a  **  carriage." 
— The  conductor  of  a  street-'*ar  is  not  the 

*  Liability  of  street-car  companies  for  personal 
injuries  generallv,  see  56  AM.  &  Ens.  R.  Cas. 
5g7,  abstr. 


456 


STREET  RAILWAYS,  316,  317. 


!if    •! 


driver  of  "  a  carriage,"  within  the  meaning 
of  N.  Y.  Rev.  St.  696,  §  6,  which  makes  per- 
sons owning  carriages  used  for  the  convey- 
ance of  passengers  liable  for  injuries  done 
bvthe  drivers.  Ituuci  v.  Third  Ave.  K.  Co., 
47  A^.  Y.  122. 

310.  Joint  ii«gllgence  of  two  com- 
panies. —  Where  a  passenger  is  injured 
through  a  collision  of  two  cars  occasioned 
by  the  negligence  of  those  in  charge  of  both, 
he  may  recover  damages  against  either  or 
both  companies ;  and  if  both  are  sued,  he 
may  dismiss  as  to  one,  or  may  take  a  verdict 
against  one,  where  the  other  is  shown  to  be 
not  guilty.  Tompkins  v.  Clay  St.  Hill  R. 
Co.,  18  Am.  &*  Enff.  K.  Cas.  144,  66  Cal. 
Rep.  163,  4  Pac.  Kep.  1 165. 

The  law  will  not  enforce  contribution  as 
between  joint  tort-feasors.  So  where  a  pas- 
senger on  a  street-car  sues  a  company  and 
recovers  damages  for  ai»  injury  caused  by 
the  joint  negligence  of  the  company  and  the 
driver  of  a  wagon,  the  company  cannot  in 
turn  recover  against  the  owner  of  the  wagon. 
Iiend\.  Chicago  IV.  D.  R.  Co..  8  ///.  A  pp.  517. 

Where  a  collision  occurs  between  two 
•■-•,  .n-cars  belonging  to  different  compa- 
"ies.  where  their  tracks  pass,  whereby  a 
pas'.enger  is  injured,  defendant  company 
ID  1 1 '.!).,  if  the  negligence  of  its  employes 
coiitrijiited  to  the  injury,  notwithstanding 
that  th?;  negligence  of  those  in  charge  of 
the,  ct'.ier  car  may  have  contributed  to  the 
i'-jiiry  also.  The  comparative  degree  in  the 
wUipability  of  the  two  will  not  affect  the  lia- 
bility of  either;  and  if  both  were  negligent 
in  a  manner,  and  to  a  degree  contributed  to 
the  injury,  they  are  liable  jointly  or  sever- 
ally. Barrett  v.  Third  Ave.  R.  O.,  45  A'. 
Y.  628  :  affirming  8  Abb.  Pr.  N .  S.  205,  i 
Sweeny  568.— Following  Webster?/.  Hud- 
son River  R.  Co..  38  N.  Y.  260. 

317.  Nct^ligcncc  in  removing  Know 
from  traclt.*— Plaintiff,  an  abutting  prop- 
erty owner,  sued  a  street-car  company,  al- 
leging that,  in  removing  snow  from  its 
track,  it  obstructed  the  natural  flow  of  water 
on  the  street,  whereby  his  house  was  in- 
jured. Held,  that  the  company  had  a  right 
to  remove  the  snow  from  its  track  and 
throw  it  on  the  adjoining  portion  of  the 
street ;  but  it  had  no  right  to  throw  it  in 
the  gutter  nor  to  bank  it  up  on  the  street 
so  as  to  prevent  the  natural  flow  of  water. 
In   removing  the  snow  it  was  required  to 


See  also  anU,  201,  273,  aml/oj/,  35(1. 


exercise  ordinary  care  and  prudence.  (Al- 
vey,  J .,  dissenting. )  Short  v.  Baltimor*  City 
Pass.  R.  Co.,  50  Md.  73. 

A  company  is  bound  to  exercise  such  care 
and  diligence  in  clearing  its  track  of  snow 
as  not  to  interfere  needlessly  with  the  safety 
and  convenience  of  those  lawfully  using  the 
street;  and  if  an  extraordinary  snowfall 
takes  place,  it  must  make  extraordinary 
efforts  to  dispose  of  it.  Bowen  v.  Detroit 
City  R.  Co.,  19  Atn.  &-  Eng.  R.  Cas.  131,  54 
Atich.  496,  20  A^.  W.  Rep.  559,  52  Am. 
Rep.  822. 

In  an  action  for  an  injury  caused  by  ob- 
structions which,  in  the  first  instance,  are 
lawfully  in  the  street,  but  which  defendant 
is  bound  to  remove  as  speedily  as  possible, 
it  is  not  necessary  to  allege  that  Miey  were 
left  there  for  an  unreasonable  time,  since 
the  -sffense  of  leaving  thim  there  relates 
bad.  so  tliat  it  becomes  unlawful  from  the 
beginning;  and  the  time  necessary  for  their 
removal  is  matter  of  justification  and  de- 
fense. Bowen  v.  Detroit  City  R.  Co.,  19 
Am.  &*  Eftg.  R.  Cas.  131,  54  Mich.  496,  20 
A'.  IV.  Rep.  559,  52  Am.  Rep.  822. 

It  cannot  be  charged,  as  matter  of  law. 
that  the  disposition  of  snow  cleared  from  a 
horse-railway  trackin  a  public  street  in  such 
a  way  as  to  raise  the  road  level  above  the 
track  was  unlawful.  Wallace  v.  Detroit 
City  R.  Co.,  58  Mich.  231,  24  A^.  IV.  Rep.  870. 

Where  a  street-car  company  is  sued  for  a 
personal  injury  caused  by  the  manner  of 
throwing  snow  from  its  track,  evidence  that 
the  snow  during  the  winter  had  been  thrown 
upon  the  side  of  the  track  and  tramped 
down  so  as  to  leave  a  depression  at  the 
track  on  a  street  crossing  of  six  to  ten  inches 
or  more,  making  a  short  slope  downward, 
which  caused  plaintiff's  sleigh  to  tip  over  in 
crossing  the  track  at  right  angles,  causing 
the  injury  sued  for,  is  sufficient  evidence  of 
negligence  to  make  the  company  liable. 
Laughlin  v.  Grand  Rapids  St.  R.  Co.,  26 
Am.  6-  Etig.  R.  Cas.  377,  62  Mich.  220,  28 
N.  W.  Rep.  873. 

Plaintiff,  in  attempting  to  cross  the  tracks 
of  defendant's  road,  slipped,  fell,  and  was 
run  over  by  one  of  its  cars.  In  an  action  to 
recover  damages  it  appeared  that  the  street, 
at  the  place  of  the  accident,  was  icy  and 
slippery.  Plaintiff,  for  the  avowed  purpose 
of  imputing  negligence  to  defendant,  "  by 
reason  of  that  condition  of  the  track,"  of- 
fered and  was  permitted  to  give  evidence 
tending  to  show  that  it  had  not  rained  or 


STREET  RAILWAYS,  818-321. 


467 


(I 


I 


snowed  (or  two  days  previous  to  the  accident. 
Httd,  error;  that  no  duty  rested  upon  the 
company  to  keep  the  space  between  its 
tracks  free  from  ice  and  snow.  Silbtrstiin  v. 
Houston,  W.  S.  &•  P.  F.  R.  Co.,  40  Am.  &» 
Eng.  R.  Cas.  268.  \\l  N.Y.  293.  22 N.  E.  Rip. 
951,  27  A'.  Y.  S.  R.  330;  reversing  52  Hun 
611.  22  AT.  K.  5.  R.  452.  4  iV.  Y.  Supp.  843. 

313.  Liability  for  InJurleH  caiiHed 
by  defects  in  Mtreet.— An  action  was 
brought  against  a  city  for  personal  injuries 
resulting  from  defects  in  a  street  arising 
from  the  failure  of  a  street-car  company 
to  observe  an  ordinance  requiring  it  to  lay 
its  tracks  on  a  level  with  the  street  and 
to  keep  the  space  between  them  in  good 
repair.  The  petition  alleged  that  the  street 
was  full  of  holes  and  that  the  rails  of  the 
street-car  track  were  some  four  inches  above 
the  level  of  the  'troet,  and  that  by  reason 
thereof  plaintiff  was  tlirown  from  his  wagon 
and  injured.  The  company  was  notified  of 
the  action  and  rendered  some  aid  in  the 
defense.  Tiie  jury  was  instructed  that  the 
city  was  liable,  and  judgment  was  entered 
for  plaintiil.  Held,  in  an  action  over  by  the 
city  against  the  company  for  the  amount  of 
such  judgment,  that  the  latter  was  conclu- 
sive only  of  the  facts  that  the  street  was 
defective  as  charged,  that  by  reason  thereof 
plaintiff  was  injured,  and  as  to  the  amount 
recovered.  St.  Joseph  v.  Union  R.  Co.,  116 
Mo.  636.  22  S.  W.  Rep.  794. 

It  was  error  to  exclude  evidence  offered 
by  defendant  that  its  tracks  were  laid,  kept, 
and  maintained  as  required  by  the  ordi- 
nance. St.  Joseph  V.  Union  R.  Co.,  1 16  Mo. 
636,  22  S.  W.  Rep.  794. 

The  burden  of  proof  was  upon  the  city  to 
show  that  the  company  was  in  fault  because 
of  the  failure  to  comply  with  the  ordinance, 
and  the  record  in  the  first  suit  did  not  make 
out  A  prima  facie  case  for  the  city  on  that 
issue.  St.  Joseph  v.  Union  R.  Co.,  1 16  Mo. 
636.  22  S.  IV.  Rep.  794. 

Where  a  company  is  authorized  to  take 
up  and  replace  pavement  along  its  track,  it 
is  no  excuse  for  an  injury  that  results  from 
a  defect'  in  the  pavement  that  the  accident 
would  not  have  happened  if  there  had  not 
been  nc(;ligencc  also  on  the  part  of  the  mu- 
nicipal authorities  ;  and  especially  is  this  so 
where  a  statute  requires  the  company  to 
construct  its  road  "  upon  the  most  approved 
plan  for  city  railroads."  Carpenter  v.  Cen- 
tral  Park,  N.  &»  E.  R.  R.  Co.,  11  AM.  Pr. 
N.  S.  (JV.  V.)  416,  4  Dafy  550.  mefn. 


310. by  orerbMifliiK  »lgwu—A 

company  maintained  an  overhanging  sign, 
above  a  sidewalk,  at  its  ticket  office.  In 
putting  in  electric-light  wires  the  servants 
of  an  independent  contractor,  with  the  com- 
pany's knowledge,  cut  the  wires  which  fas- 
tened the  sign  and  neglected  to  restore 
them.  Two  months  afterward  the  sign  fell 
and  injured  plaintiff.  HeM,  that  the  com- 
pany was  guilty  of  negligence  in  failing  to 
see  that  the  fastenings  were  saicly  restored. 
St.  Louis,  /.  M.  &*  S.  R.  Co.  v.  Hopkins, 
54  Ark.  209.  \^S.  tV.  Rep.  610. 

An  instruction  that  defendant  was  not  lia- 
ble if  the  sign  fell  from  the  act  of  God  was 
properly  refused,  where  the  only  evidence 
on  that  point  was  that  it  fell  on  a  windy  day 
in  March.  It  was  defendant's  duty  to  take 
such  precautions  in  fastening  the  sign  as  to 
make  it  secure  against  the  force  of  such 
winds  as  might  be  expected  in  the  regular 
course  of  the  seasons.  St.  Louis,  /.  M.  &• 
S.  R.  Co.  V.  Hopkins,  54  Ark.  209.  15  5.  W. 
Rep.  610. 

320.  Using  bridge  belonging  to 
Htate.  —  Where  a  company,  organized  for 
the  purpose  of  constructing  its  road  along 
a  ci  .y  street  which  is  intersected  by  a  state 
canal  Ciossed  by  a  bridge  erected  by  and 
under  the  control  of  the  state,  lays  its  tracks 
and  runs  its  cars  over  the  bridge,  it  does  not 
tb^eby  make  the  bridge  an  appliance  of  its 
own,  within  the  meaning  of  the  rule  which 
exacts  extreme  care  and  caution  from  com- 
mon carriers  in  relation  to  the  condition  of 
the  .appliances  employed  by  them ;  but  its 
liability,  while  on  the  bridge,  is  none  other 
than  or  dilTcrent  from  its  liability  while 
traversing  the  rest  of  the  street.  Birming- 
ham  v.  Rochester  City  &*  B.  R.  Co.,  137  A''. 
Y.  13,  32  A'.  E.  Rep.  995.  49  A^.  K.  S.  R. 
888 ;  reversing  63  Hun  635,  45  A'.  Y.  S.  R. 
724. 18  JV.   v.  .Supp.  649. 

321.  Placing  diHcaNed  boraes  in 
close  proximity  to  otlient.  —  Plaintiff 
charged  defendant,  a  street-car  company, 
with  negligently  placing  a  number  of  its 
horses,  suffering  from  a  contagious  disease, 
in  a  shed  adjoining  plaintiff's  stable,  where- 
by his  horses  became  diseased.  The  com- 
pany rested  its  defense  on  the  ground  that 
it  had  a  right  to  use  its  own  pro|>erty  in  any 
way  that  it  thought  proper.  HeLt,  that  this 
right  would  not  extend  to  creating  a  nui- 
sance ;  and  it  was  negligence  in  the  com- 
pany to  allow  its  horses  to  drink  at  a  public 
tank  where  plaintiff's  horses  were  Wintered. 


458 


STREET  RAILWAYS,  322-880. 


Hi' 


w 


Bii 


The  company  was  bound  to  use  diligence  to 
■ee  that  plaintiff's  horses  were  not  injured. 
A/a/s  V.  Ntw  York  6-  H.  R.  Co.,  2  Robt. 
(N.  Y.)  326;  affirmed  in  41  JV.  K.  619. 

The  evidence  showed  that  the  sheds  or 
pens  in  which  the  company's  horses  were 
placed  were  only  separated  from  plaintiff's 
stables  by  a  wooden  partition.  In  the  rear 
of  the  stables  a  board  fence  separated  their 
respective  lots.  It  was  in  evidence  that 
defendant's  horses  gnawed  the  boards  and 
fence  so  as  to  make  holes  through  the 
same.  HM,  that  it  was  the  duty  of  the 
company  to  have  immediately  closed  such 
holes,  and  to  have  been  vigilant  in  using  all 
necessary  means  to  prevent  the  disease 
from  being  conveyed  to  plaintiff's  horses,  or 
else  place  its  horses  so  remote  that  contact 
would  not  have  been  possible.  A/iUs  v. 
New  York  6-  H.  R.  Co.,  2  Robt.  (N.  Y.) 
326  ;  affirmed  in  \i  N.  K  619. 

322.  Liability  of  city  for  negli- 
gence of  company.  —  Where  a  city 
licenses  a  company  to  use  the  streets  in  a 
law'ul  way,  it  is  not  liable  for  the  negligence 
of  the  company;  but  where  it  authorizes 
rails  to  be  laid  and  permits  them  to  remain 
projecting  their  full  width  above  the  surface 
of  the  street,  it  is  lia<}le  for  its  own  negli- 
gence in  failing  to  keep  the  street  in  a 
reasonably  safe  condition.  Michigan  City  v. 
Boeckling,  122  Ind.  39,  23  N.  E.  Rep.  518. 

A  city  dug  a  trench  in  a  highway  across 
and  under  the  track  of  a  horse  railroad,  for 
the  purpose  of  laying  a  sewer.  The  trench 
was  fenced  in  by  planks,  the  planks  across 
the  railroad  being  removable  for  the  pas- 
sage of  the  cars.  Plaintiff,  on  a  dark  night, 
stepped  upon  the  track  to  take  a  car,  which, 
as  he  was  about  to  reach  it,  started  and 
moved  slowly.  He  followed  it  and  fell  into 
the  trench.  Held,  that  there  was  suflicient 
evidence  to  authorize  the  jury  in  finding 
that  plaintiff  was  in  the  exercise  of  due 
care ;  that  the  city  was  bound  to  guard  the 
excavation  so  as  to  make  it  reasonably  safe, 
and  that  the  act  of  the  company  in  remov- 
ing the  barriers  from  the  track  did  not  re« 
lieve  the  city,  if  it  was  otherwise  liable  to  an 
action  for  the  defect  in  the  highway.  Prtn- 
tiss  V.  Boston,  112  Mass.  43. 

A  street-car  line  terminated  so  that  pas- 
sengers could  step  immediately  from  the 
cars  to  the  sidewalk.  The  company  main- 
tained a  turntable  at  this  place,  and  in 
turning  cars  the  rear  platform  would  over- 
lap the  sidewalk  two  to  three  feet.  Plaintiff. 


who  had  just  left  a  car  and  stepped  on  the 
sidewalk,  was  struck  by  a  turning  car  before 
she  had  time  to  move  away.  Held,  that  the 
city  was  not  liable  because  of  the  position 
of  the  track  and  turntable.  f'itcA  v.  Mayor, 
etc.,  of  N.  Y.,  23/  6-5.  494,  2  N.  Y.  Sufip. 
700;  affirmed  in  119  A''.  Y.  608,  mem.,  23 
A''.  E.  Rep.  1 143,  mem. 

323.  Recovery  over  by  city.  —  A 
company,  which  was  required  to  keep  the 
street  in  and  about  its  track  in  good  order, 
failed  to  do  so,  whereby  an  individual  was 
injured  and  brought  an  action  against  the 
city.  Notice  was  given  to  the  company,  and 
it  was  requested  to  defend  and  indemnify 
the  city,  but  declined  to  do  so.  Judgment 
was  obtained  against  the  city,  which  it  paid, 
and  then  brought  suit  against  the  company. 
Held,  that  the  judgment  against  the  city  was 
conclusive  upon  the  company  as  to  the  ex- 
tent of  the  damages,  and  that  the  excava- 
tion in  the  street  made  by  the  company, 
and  which  caused  the  injury,  rendered  the 
street  unsafe  and  dangerous.  Mayor,  etc., 
of  Troy  v.  Troy  &*  L.  R.  Co.,  49  A'.  Y.  657, 
mem, ;  affirming  3  Lans.  270. 

324.  Recovery  over  by  conipniiy 
against  a  third  pertiou.— A  wagon  was 
driven  against  a  street-car  so  as  to  injure  ;i 
passenger  therein,  and  the  com()any  was 
required  to  pay  damages.  After  doing  so, 
it  brought  an  action  over  against  the  owner 
of  the  wagon,  allegi^t^  <renerally  an  unlaw- 
ful trespass  in  running  into  the  car,  and 
setting  up  as  special  damages  the  amount 
of  the  judgment  against  it.  Held,  that  it 
was  error  to  sustain  a  demurrer  xr  the  com- 
plaint. The  law  would  allow  at  least  nomi- 
nal damages  for  the  trespass,  irrespective  of 
its  right  to  recover  the  amount  of  the  judg- 
ment ;  and  the  complaint,  therefore,  stated 
a  cause  of  action.  Chicago  W,  D.  R.  Co. 
V.  Rend,  6  ///.  App.  243.— Reviewing  Tal- 
niadge  v.  Zanesville  &  M.  Road  Co.,  1 1 
Ohio  197. 

3.  Injuries  to  Passengers. 

a.  Amount  of  Care  Company  Must 
Exercise. 

325.  Generally.*  —  A  street-railway 
company  is  bound  to  exercise  nil  possiljc 

•  Duty  of  street-railway  companies  to  exercise 
care  to  avoid  accidents,  see  note,  3$  Am.  St. 
Rkp.  481. 

Care  required  in  running  cars  of  street  rail- 
ways and  cable  lines,  see  note,  7  L.  R.  A.  819. 


STREET  RAILWAYS,  320. 


469 


skill,  care,  and  foresight  in  the  running  of 
its  cars,  so  that  passengers  may  not  be  ex- 
posed to  danger  on  account  of  the  manner 
in  which  the  cars  are  run.  "  All  possible 
skill  and  care  "  implies  tiiat  every  reasonable 
precaution  in  the  management  and  opera- 
tion of  the  street-cars  be  used  to  prevent 
injuries  to  passengers ;  it  means  good  tracks, 
safe  cars,  experienced  drivers,  careful  man- 
agement, and  judicious  operation  in  every 
respect.  "  All  possible  foresight "  means 
more  than  this ;  it  means  anticipation,  if 
not  knowledge,  that  the  operation  of  the 
cars  will  result  in  danger  to  passengers,  and 
that  there  may  be  some  action  with  refer- 
ence to  the  future,  and  a  provident  care  to 
guard  against  such  occurrences — a  wise 
forethought  and  prudent  provision  that  will 
avert  the  threatened  evil,  if  human  thought 
or  action  can  do  so.  Toptka  City  R.  Co.  v. 
Higgs,  34  Am.  d-  Eng.  R.  Cas.  529,  38  /Can. 
375,  16  Pac.  Rep.  667.— Quoting  Tuller  v. 
Talbot,  23  III.  357 ;  Meier  v.  Pennsylvania 
R.  Co.,  64  Pa.  St.  226;  Philadelphia  &  R. 
R.  Co.  V.  Derby,  14  How.  (U.  S.)  468. 

Street-railway  companies,  as  carriers  of 
passengers  for  hire,  are  bound  to  exercise 
the  highest  degree  of  care  and  diligence 
consistent  with  the  nature  of  their  under- 
taking, and  are  responsible  for  the  slightest 
neglect.  This  rule  extends  to  the  manage- 
ment of  cars  and  track,  and  to  all  the  ar- 
rangements necessary  for  the  safety  of  pas- 
sengers as  respects  accidents  from  collision 
or  otherwise.  Smt'/A  v.  5/.  Paul  City  R. 
Co.,  16  Am.  (5m  Eng.  R.  Cas.  310,  32  Minn. 
I,  50  Am.  Rep.  550.'  18  N.  IV.  Rep.  827. 

They  must  exercise  the  utmost  foresight, 
knowledge,  skill,  and  care.  Dougherty  v. 
Missouri  R.  Co. ,  34  Am.  &»  Eng.  R.  Cas. 
488;  see  also  37  Am.  6-  Eng.  R.  Cas.  206, 
97  Mo.  647.  15  West.  Rep.  235,  8  S.  W.  Rep. 
000,  II  5.  \V.  Rep.  251. 

Tkey  are  bound  to  exercise  extraordinary 
care  and  the  utmost  skill,  diligence,  and 
human  foresight,  and  ar<>  liable  for  the 
slightest  negligence.  Spellman  v.  Lincoln 
Rapid  Transit  Co.,  58  Am.  &>  Eng.  R.  Cas. 
297 >  36  Neb.  890,  55  A'.   W.  Rep.  270. 

Passenger  carriers  bind  themselves  to 
carry  safely  those  whoin  they  take  into  their 
coaches,  to  the  utmost  care  and  diligence 
of  very  cautious  persons.  Maverick  v. 
Eighth  Ave.  R.  Ci.,  36  N.  K,  378.  Barrett 
v.  Third  Ave  R.  Co.,  8  AM.  Pr.  N.  S. 
(N.  Y.)  205;  affirmed  in  45  JV.  Y.  628.  Mc- 
Swyny  v.  Broadway  6-  S.  A.  R.  Co.,  27  JV.  V. 


S.  R.  363,  54  //u»  637,  4  Si/v.  Sup.  a.  495. 
7  A',  y.  Supp.  456. 

An  instruction  to  the  effect  that  a  street- 
railway  company  is  not  bound  to  exercise 
more  than  "ordinary  care  and  diligence, 
such  care  and  diligence  as  a  man  of  ordinary 
prudence  and  capacity  might  be  expected 
to  exercise  under  the  same  circumstances," 
correctly  states  the  law  as  an  abstract  propo- 
sition, yet  a  refusal  by  a  referee  so  to  find 
is  not  ground  for  the  reversal  of  a  judgment 
against  a  street-car  company,  where  his 
findings  are  supported  by  the  evidence. 
Fuller  V.  Jamestown  St.  R.  Co.,  75  /fun  273, 
26  A^.  V.  Supp.  1078. 

320.  In  receiving  and  discharging 
passengcKi.— While  such  carrier  of  pas- 
sengers is  not  an  insurer  of  their  safety,  it 
is  bound  to  use  due  care  and  vigilance,  so 
as  safely  to  transport  them.  It  must  allow 
reasonable  time  for  them  to  enter  and  leave 
its  vehicle  with  safety,  in  the  exercise  of 
ordinary  care,  and  should  also  allow  reason- 
able time  for  passengers  to  enter  and  take 
seats,  if  there  be  any,  or  reasonable  time  for 
them  to  seize  the  straps  furnished  for  pas- 
sengers when  standing;  and  while  it  may 
start  before  a  passen-^er  has  had  time  to 
take  his  seat  or  to  secure  his  hold  on  the 
strap,  it  must  exercise  the  utmost  care 
when  thus  starting,  so  as  not  to  jar  or  up- 
set him.  Dougherty  v.  Missouri  R,  Co.,  21 
Am.  &*  Eng.  R.  Cas.  497,  81  Mo.  325,  51 
Am.  Rep.  239 ;  affirming  9  Mo.  App.  478. — 
Reviewed  in  Murphy  v.  St.  Louis.  I.  M.  & 
S.  R.  Co.,  43  Mo.  App.  342. — North  Chicago 
St.  R.  Co.  v.  Cook,  43  ///.  App.  634 ;  affirmed 
in  145  ///.  551,  33  A^  £".  Rep.  958.  Central 
R.  Co.  V.  Smith,  74  Md.  212.  21  Atl.  Rep. 
706,  Steeg  V.  St.  Paul  City  R.  Co.,  52  Am. 
6-  Eng.  R.  Cas.  ^  o,  50  Minn.  149.  52  AT.  IV. 
^*P-  393.  >6  -t.  R.  A.  379,  20  Wash.  L. 
Rep.  541. 

The  extent  of  a  street  railroad's  obliga- 
tion is  to  exercise  the  utmost  care  which 
a  prudent  man  is  accustomed  to  exercise 
under  like  circumstances.  Gainard  v.  Roch- 
ester City  &*  B.  R.  Co.,  7  A'.  Y.  S.  R.  103.— 
Reviewing  Etherington  v.  Prospect  Park 
&  C.  I.  R.  Co..  88  N.  Y.  641. 

It  is  the  duty  of  such  companies  to  allow 
their  patrons  an  opportunity  to  get  on  and 
off  the  cars,  and  the  starting  of  the  car 
while  the  passenger  is  so  doing  is  clearly 
negligent ;  but  such  act  does  not  make  de- 
fective a  construction  of  the  car  which, 
under  other  circumstances,  is  reasonably 


MO 


STREET  RAILWAYS,  897, 828. 


«lf 


4:1 


Mfe.  WtricwUiy  v.  Ft.  IVaynt  5«  £.  K. 
Co..  86  J//V>1.  236,  48  N.  W.  Rtp,  1097. 

A  ttreet-railway  company  is  bound  in  re- 
ceiving and  discharging  passengers  to  ob- 
serve an  unvarying  and  unbending  require- 
ment on  every  part  of  its  line  without  regard 
to  the  dcnseness  of  the  population.  It  is 
bound  to  see  every  passenger  who  attempts 
to  get  on  its  cars  while  they  are  standing 
still,  but  it  is  not  so  bound  after  they  are 
in  motion.  But  when  it  sees  such  attempt 
to  board  a  moving  train,  or  from  circum- 
stances has  reason  to  know  thereof,  it  must 
exercise  such  prudence  in  the  management 
of  the  car  as  is  demanded  by  the  exigencies 
of  the  situation.  Meriwether  v.  Kansas 
City  Cable  K.  Co.,  45  Mo.  App.  528. 

A  driver  of  an  ordinary  horse  car,  in  look- 
ing out  for  persons  desiring  to  become  pas- 
sengers, is  bound  to  exercise  that  ordinary 
care  which  a  person  ought  to  observe  under 
the  circumstances  in  which  he  is  placed ; 
and  if  such  care  is  exercised,  thougli  plain- 
ti(T  has  signaled  the  car  but  without  being 
seen  by  the  driver,  there  can  be  no  recovery 
for  an  injury.  Lamline  v.  Houston,  IV.  S. 
&»  P.  F.  li.  Co.,  6  N.  V.  S.  K.  248. 

In  attempting  to  get  on  a  car  plaintiff 
was  thrown  down  and  injured  by  a  car  pass- 
ing in  the  opposite  direction  on  an  adjoin- 
ing track.  Plaintiff's  evidence  tended  to 
show  that  the  car  wliich  injured  him  was 
eighty  feet  away  when  he  was  thro  vn  down ; 
while  the  evidence  for  the  defendant  tended 
to  show  that  he  was  thrown  down  immedi- 
ately in  front  of  the  car.  Held,  that  an  in- 
struction that  there  was  no  negligence,  "  if 
the  driver  took  all  the  measures  that  an 
ordinarily  prudent  and  careful  man  would 
have  taken  to  prevent  the  collision,"  was 
sufficient,  and  it  was  not  error  to  refuse  to 
give  a  further  instruction  which  involved  a 
comparison  with  drivers  uf  other  vehicles 
on  the  street.  Pallez  v.  Brooklyn  City  R.  Co., 
22  A'.  Y.  S.  R.  657.  51  Hun  644.  4  A'.  Y. 
Supp.  384 ;  affirmed  in  123  N.  Y.  652,  mem,, 
2^  N.  E.  Rep.  954,  mem. 

327.  In  carrying  Nick  or  aged  per- 
sons.—A  degree  of  attention  beyond  that 
given  to  an  ordinary  passenger  should  be 
bestowed  on  one  known  to  be  affected  by  a 
disability  by  which  the  hazards  of  travel  are 
increased.  Wardle  v.  New  Orleans  City 
R.  Co.,  13  Am.  &*  Eng.  R.  Cas.  60,  35  La. 
Ann.  202. 

A  sick  or  aged  person,  a  delicate  woman, 
a  lame  man,  or  a  child,  is  entitled  to  more 


care  and  attention  from  a  railrotd  oomp«ny 
than  one  in  good  health  and  under  no  disa- 
bility. They  are  entitled  to  more  time  in 
which  to  get  on  or  off  the  cars,  and  to  more 
consideration  in  crossing  a  street.  Sheri- 
dan v.  Brooklyn  City  6-  A'.  R.  Co.,  36  N.  Y. 
39.  34  ^<'«'.  Pr.  217.— Followed  in  Solo- 
mon V.  Central  Park,  N.  &  E.  R.  R.  Co.,  1 
Sweeny  (N.  Y.)  298.  Quoted  in  Costcilo 
V.  Syracuse,  B.  &  N.  Y.  R.  Co.,  65  Barb. 
(N.  Y.)  92  ;  Louisville,  N.  A  G.  S.  R.  Co.  * . 
Fleming,  14  Lea  (Tenn.)  128.  Reviewed 
IN  Thurber  v.  Harlem  Bridge,  M.  A  F.  R. 
Co.,  60  N.  Y.  326. 

328.  In  protecting  passenger 
against  inNuits  or  violence.— A  com- 
pany has  the  power  of  refusing  to  receive  as 
a  passenger,  or  of  expelling,  any  one  who  is 
drunk,  disorderly,  or  riotous,  or  who  so  de- 
means himself  as  to  endanger  the  safety  or 
interfere  with  the  reasonable  comfort  and 
convenience  of  the  other  passengers,  and 
may  exert  all  necessary  power  and  means  to 
eject  from  the  cars  any  one  so  imperiling 
tlie  safety  of,  or  annoying,  others.  Putnam 
y.  Broadivay  &*  S.  A.  R.  Co.,  55  A':  Y.  108, 
IS  AM.  Pr.  N.  S.  383.  6  Am.  Ry.  Rep.  40; 
reversing  4/.  6-5.  195.— Applying  Pitts- 
burgh, Ft.  W.  A  C.  R.  Co.  V.  Hinds,  53  Pa. 
St.  512;  Flint  V.  Norwich  &  N.  Y.  Transp. 
Co.,  34  Conn.  554  —  Distinguished  in 
Carpenter  v,  Boston  &  A.  R.  Co.,  21  Am.  ft 
Eng.  R.  Cas.  331,  97  N.  Y.  494,  49  Am.  Rep. 
540;  Lehr  v.  Steinway  &  H.  P.  R.  Co.,  118 
N.  Y.  556.  Explained  in  Milliman  v.  New 
York  C.  &  H.  R.  R.  Co..  66  N.  Y.  642.  Fol- 
lowed in  Meyer  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  54  Fed.  Rep.  116,  10  U.  S.  App.  677,  4 
C.  C.  A.  221 ;  Peck  v.  New  York  C.  ft  H. 
R.  R.  Co.,  70  N.  Y.  587;  Weeks  v.  New 
York.  N.  H.  &  H.  R.  Co..  72  N.  Y.  50. 
Quoted  and  reviewed  in  Carpenter  v. 
Boston  A  A.  U.  Co..  24  Hun  (N.  Y.)  104. 

And  this  police  power  the  conductor,  or 
other  servant  of  the  company  in  charge  of 
the  car  or  train,  is  bound  to  exercise  with 
all  the  means  he  can  command  whenever 
occasion  requires.  If  this  duty  is  neglected 
without  good  cause,  and  a  passenger  re- 
ceives injury  which  might  have  been  rea- 
sonably anticipated  or  naturally  expected 
from  one  who  is  improperly  received  or 
permitted  to  continue  as  a  passenger  the 
carrier  is  responsible.  Putnam  v.  Broadway 
&*  .9.  A.  R.  Co.,  55  A^.  Y.  108,  is  Add.  Pr. 
N.  S.  383,  6  Am.  Ry,  Rep.  40 ;  reversitfg  4/. 
&*  S.  19s. 


STREET  RAILWAYS,  829-»82. 


461 


The  (act  that  an  individual  may  have 
drunk  to  excess  will  not.  in  every  case,  jus- 
tify his  expulsion  from  a  public  conveyance. 
It  is  rather  the  degree  of  intoxication,  and 
its  effect  upon  the  individual,  and  the  fact 
that,  by  reason  of  the  intoxication,  he  is 
dangerous  or  annoying  tu  the  other  piisscn- 
gers,  that  gives  the  right  and  imposes  the 
duty  of  expulsion.  Putnam  v.  Broadway 
4*  S.  A.  R.  Co.,  5$  A'.  Y.  io8.  1 5  Abb.  Pr.  N. 
S.  383,6  i4»».  Jfy.  Rtp.  40;  reversing^/.  &* 

S.  195- 

820.  Duty  to  fUrnisli  safe  cars, 
track,  and  appliances.— A  company  is 
guilty  of  negligence  when  it  attempts  to  run 
its  cars  over  a  palpably  defective  track, 
when  by  the  use  of  such  increased  vigihince 
and  care  as  are  practicably  available  the 
safety  of  its  passengers  is  not  well  assured. 
CitiMtHs'  St.  R.  Co.  V.  Twinamt,  30  Am.  &* 
Eng.  R.  Cas.  616.  1 1 1  Ind.  587.10  Wtst.  Rtp. 
824,  13N.E.  Rep.  55. 

Carriers  of  passengers  for  hire  are  bound 
to  use  the  utmost  care  and  diligence  in  pro- 
viding safe,  sufficient,  and  suitable  coaches, 
harness,  horses,  and  coachmen,  in  order  to 
prevent  injuries  which  human  care  and 
foresight  can  guard  against.  Warren  v. 
Filckburg  R.  Co.,  8  Allen  {Mass.)  227.  — 
Quoted  in  Libby  v.  Maine  C.  R.  Co.,  8$ 
Me.  34.  Reviewed  in  Northern  C.  R.  Co. 
V.  State,  39  Md.  420. 

It  is  the  duty  of  a  company  to  provide, 
in  the  construction  of  its  cars,  against  every 
danger  to  passengers  that  is  probable  and 
reasonably  to  be  apprehended ;  but  not 
against  such  as  arc  so  remote  as  tr  be  barely 
possible.  Keller  v.  Hestonville,  At.  &*  F. 
Pass.  R.  Co.,  149  Pa.  St.  65,  74  Atl.  Rep. 
159;  affirming  i  Pa.  Dist.  197. 

330. and  to  adopt  new  and  Im- 
proved appliances.*— A  street-railway 
company  is  bound  to  provide  suitable 
tracks,  rolling  stock,  etc.,  keeping  pace 
with  science,  art,  and  modern  improve- 
ments in  their  application  to  such  trans- 
portation. Citizens'  St.  R.  Ci  v.  Tiviname, 
30  Am.  d»  Eng.  R.  Caj.  616, 1 1 1  /«</.  587,  10 
IVest.  Rep.  824.  i^  N.  E.  Rep.  55. 

A  company  is  not  required  to  furnish  its 
road  with  new  cars,  nor  is  it  liable  for  using 
old  ones,  but,  in  either  case,  mnst  keep' 
them  in  good  repair,  and  fit  for  n.\e,  so  as 
not  to  endanger  the  safety  of  passengers. 
Wormsdorf  v.  Detroit  City  R.  Co.,  40  Am. 

*  See  also  (if(<«,  311. 


6*  Ei^.  R.  Cas.  271.  7S  MitM.  473, 43  N.  IV. 
Rep.  1000. 

Plaintiff  was  injured  on  leaving  a  car  in 
stepping  in  the  space  between  the  car  and 
the  platform.  For  the  purpose  of  charging 
the  company  with  negligence  it  was  shown 
that  another  company  in  the  city  bridged 
or  covered  this  space  by  the  adoption  of 
some  peculiar  device;  but  there  was  no 
evidence  that  any  such  appliance  was  in 
general  use,  or  that  the  attention  of  the 
company  had  been  called  to  the  fact  that 
its  platform  as  it  stood  was  unsafe.  Held, 
that  there  was  no  duty  calling  upon  the 
company  to  adopt  the  device,  which,  so  far 
as  the  evidence  showed,  was  only  used  by 
the  one  other  company.  Fox  v.  Mayor,  etc., 
of  N.  v..  70  Hun  181.  53  A'.  Y.  S.  R.  902, 
24  A'.  Y.  Supp.  43. 

331.  In  HlilftinK  cars.  —  Defendant 
company  operated  a  double-track  road,  and 
at  the  end  of  its  line  moved  its  cars  side- 
wise  from  one  track  to  the  other  by  a  mov- 
able section  of  the  track.  Plaintiff,  who 
was  not  familiar  with  this  arrangement,  at- 
tempted to  get  on  a  car,  supposing  it  was 
ready,  but  was  injured  by  its  being  thrown 
against  her.  Held,  that  the  manner  of  mov- 
ing curs  imposed  upon  the  company  greater 
care  than  is  generally  imposed  upon  a  rail- 
way company  in  shifting  its  cars  Gordon 
V.  Grand  St.  &»  N.  R.  Co.,  40  Barb.  (N.  Y.) 
546.— QuurED  IN  Kennayde  v.  Pacific  R. 
Co..  4;  Mo.  255.  Reviewed  in  Ernst  v. 
Hudson  River  R.  Co..  35  N.  Y.  9,  32  How. 
Pr.  61. 

In  the-absence  of  all  proof  of  knowledge 
by  the  person  injured  of  the  manner  of 
shifting  cars  by  a  side  movement,  and  the 
danger  resulting  therefrom,  he  cannot  be 
char^^ed  with  having  contributed  to  the 
accident  by  his  own  carelessness.  Gordon 
V.  Grand  St.  6-  N.  R.  Co.,  40  Barb.  {A'. 
Y.)  546. 

332.  In  passing  dangerous  places 
or  structures.  —  A  street-railway  com- 
pany, as  a  carrier  of  passengers,  is  bound 
to  exercise  the  highest  care  in  the  manage- 
ment of  its  cars  in  approaching  and  passing 
structures  and  obstacles  in  the  street  situ- 
ated unreasonably  close  to  the  track.  DaAl- 
ber^^  V.  Minneapolis  St.  R.  Co.,  18  Am.  &* 
Eng.  J?.  Cas.  202,  32  Minn.  404.  31  JV.  IV. 
Rep.  545- 

It  is  proper  to  charge  that  when  a  horse 
car  crosses  the  track  of  a  steam  railroad 
the  driver  is  bound  to  exercise  the  highest 


462 


STREi.!'   RAILWAYS,  »3a-tfao. 


degree  of  care  and  prudence,  the  utmost 
■kill  and  foresight.  Coddington  v.  Brook- 
lyn CrotstuwH  R,  Co.,  26  Am.  &*  Eng.  R. 
Cas.  393.  102  N,  V.  66,  5  A'.  E.  Ktp.  797  ; 
affirming  32  Hun  467. 

Plaintiff  was  riding  on  defendant's  car, 
and  was  injured  in  crossing  a  drawbridge 
by  the  falling  of  a  key.  There  was  evidence 
tending  to  show  that  the  car  was  driven  at 
such  a  rate  as  to  cause  the  bridge  to  oscil- 
late and  the  key  to  fall.  It  appeared  that 
the  driver  was  familiar  with  the  bridge 
and  the  lurking  danger  connected  with  it. 
Held,  that  he  was  bound  to  be  more  cautious 
and  vigilant  in  crossing  it  to  guard  against 
accidents.    Catalanotto  v.  Coney  Island  &*  li. 

jt.  Co., 27  A'.  VS.  a:  47, 7  A',  y.  supp.  028. 

333.  ProHiiinptioii  ns  to  condition 
of  car  or  track. — In  an  action  to  recover 
damages  for  injuries  sustained  while  riding 
on  the  platform  of  a  street-car,  the  court 
will  presume,  in  the  absence  of  evidence  to 
the  contrary,  that  the  car  was  a  good  one. 
Andrews  v.  Capitol,  N.  O.  St.  &*  S.  W.  R. 
Co.,  2  Mackty  (D.  C.)  137. 

When  a  duly  eqiiipped  car  is  placed  upon 
a  track,  under  circumstances  indicating  that 
it  is  ready  to  receive  passengers  and  about 
to  proceed  on  its  way,  an  invitation  to  all 
suitable  persons  to  enter  and  become  pas- 
sengers is  implied,  and  the  acceptance  of 
such  an  invitation  cannot  be  held  to  be 
contributory  negligence  on  the  part  of  a 
passenger,  although  he  may  have  knowl- 
edge that  portions  of  the  track  over  which 
he  is  to  be  carried  are  defective,  he  having 
a  right  to  presume  that  all  necessary  pre- 
cautions have  been  taken  to  secure  his 
safety.  Cititens'  St.  R.  Co.  v.  Twiname,  30 
Am.  &*  Eng.  R.  Cas.  616,  in  fnd.  587,  10 
fVest.  Rep.  824,  13  N.  .E.  R*p.  55. 

334.  Street -cats  distitsT'iiiglied 
flrom  steam -cars,  as  to  care  re- 
quired.*—  The  rule  which  requires  the 
highest  skill  in  the  management  of  cars  oper- 
ated by  steam  applies  to  street-cars  and  other 
vehicles  drawn  by  horses,  to  its  full  extent, 
the  difference  being  in  the  means  and  in- 
strumentalities used  to  prevent  accident  by 
reason  of  the  mode,  rather  than  the  degree, 
in  which  the  preventive  means  are  to  be 
employed.  Topeka  City  R.  Co.  v.  Higgs, 
34  Am.  &*  Eng.  R.  Cas.  529,  38  /Can.  375, 
16  Pac.  Rep.  667. 

*  Application  to  street  railways  and  dummy 
lines  of  statutes  referring  to  railroads  generally, 
■ee  49  Am.  &  Eng.  R.  Cas.  277,  aiitr. 


There  is  a  broad  and  just  distinction  be- 
tween the  rules  of  negligence  applicable  to 
steam  and  to  horse  railways.  What  might 
be  undoubted  negligence  as  respects  the  for- 
mer might  not  be  so  as  respects  the  latter. 
06er  V.  Crescent  City  R.  Co..  52  Am.  6-  Eng. 
R.  Cas.  576,  44  La.  Ann.  1059,  11  So.  Rep. 
818.  —  Distinguishing  Walker  v.  Vicks- 
burg,  S.  &  P.  R.  Co..  41  La.  Ann.  795;  Red- 
dington  v.  Philadelphia  Traction  Co.,  132 
Pa.  St.  154. 

The  same  degree  of  care  is  not  required 
of  the  carriers  of  passengers  upon  street- 
cars drawn  by  horses  as  of  railroad  com- 
panies, whose  cars  arc  drawn  by  steam.  No 
greater  degree  of  care  as  to  pedestrians  in 
a  street  is  required  of  them  than  is  required 
of  the  driver  or  owner  of  any  other  vehicle. 
In  the  attachment  of  horses  to  their  cars 
they  are  not  bound  to  use  the  best  method 
human  skill  and  ingenuity  have  devised  to 
prevent  accidents.  If  they  use  the  method 
in  general  use,  and  which  has  been  found 
usually  adequate  and  safe,  their  duty  in 
this  respect  is  discharged.  Unger  v.  Forty- 
second  St.  «S-  G.  S.  F.  R.  Co.,  $1  N.  V.  497, 
4  Am.  Ry.  Rep,  481 ;  affirming  6  Robt.  237.— 
Approved  in  Memphis  City  R.  Co.  v, 
Logue.  13  Lea  (Tenn.)  32. 

b.  Relation  of  Passenger  and  Carrier. 

330.  When  the  relation  begrlns.— 

One  is  a  passenger  in  a  street-car  who  is  in 
the  act  of  stepping  on  the  platform,  the  car 
having  stopped  for  him.  In  case  of  an  ac- 
cident when  stepping  on,  his  rights  are 
those  of  a  passenger.  McDonough  v.  Met- 
ropolitan R.  Co.,  21  Am.  &»  Eng.  R.  Cas. 
3S4,  137  Mass.  210.  Smith  v.  St.  Paul  City 
R.  Co.,  16  Am,  &*  Eng.  R.  Cas.  310,  32  Minn. 
I,  50  Am.  Rep.  550,  18  A'.  IV.  Rep.  827.— 
Quoted  in  Murphy  v.  St.  Louis,  I.  M.  & 
S.  R.  Co..  43  Mo.  A  pp.  342. 

Where  a  person  desiring  to  enter  a  street- 
car signals  the  driver  to  stop,  and  the  driver 
holds  the  car,  the  instant  the  person  places 
his  foot  upon  the  step  of  the  car  he  is  a 
passenger.  The  signal  amounts  to  an  offer 
or  request  to  ride  in  that  car,  and  its  recog- 
nition by  the  person  in  charge  of  the  car  to 
an  acceptance  of  the  same.  Gainard  v. 
Rochester  City  &*  B.  R.  Co.,  \i  N.  Y.  S.  R. 
692,  50  Hun  22,  2  A''.  Y.  Supp.  470 ;  affirmed 
in  121  N.  Y.  661,  mem.,  24  A^.  E.  Rep. 
1092,  mem. 

330.  Payment  of  fare. —  It  is  not 
necessary  that  there  be  an  express  con- 


STREET   RAILWAYS,  337-889. 


468 


o 
It 


tract  In  order  to  conititute  the  relation  of 
carrier  and  paucnger,  nor  that  there  should 
be  a  consummated  contract.  The  contract 
may  be  implied  from  slight  circumstances, 
and  it  need  not  be  actually  consummated 
by  the  payment  of  fare  or  entry  into  the  car 
or  boat  of  the  carrier,  but  the  matter  de- 
pends largely  upon  the  intention  of  the  per« 
son  at  tlie  time  hr  enters  the  car  or  boat. 
North  Chicago  St.  R,  Co.  v.  Williams,  53 
Am,  &*  Etig.  K.  Cas.  533,  140  ///.  375,  39 
A^.  E.  Rtp.  673 ;  affirming  40  ///.  App.  $90. 
—Quoting  Butler  v.  Glens  Falls,  S.  H.  & 
F.  E.  St.  R.  Co.,  131  N.  Y.  113. 

If  a  person  riding  with  due  care  on  the 
platform  of  a  horse-car,  not  as  a  passenger 
for  hire,  but  by  invitation  of  the  driver,  and 
without  collusion  with  him  to  defraud  the 
company,  is  injured  through  the  driver's 
negligence,  the  company  is  liable.  Wilton 
v.  Midiilestx  R,  Co.,  107  Mass.  108.— Ap- 
plied IN  Buck  V.  People's  St.  R.,  E.  L.  ft 
P.  Co.,  46  Mo.  App.  555.  Distinguished 
IN  Way  V.  Chicago,  R.  I.  &  P.  R.  Co.,  64 
Iowa  48,  53  Am.  Rep.  431 ;  Ohio  &  M.  R. 
Co.  V.  Allender,  47  III.  App.  484:  Lott  v. 
New  Orleans,  C.  &  L.  R.  Co.,  37  La.  Ann. 
337;  Higley  v.  Gilmer,  3  Mont.  90;  Snyder 
V.  Hannibal  &  St.  J.  R.  Co.,  60  Mo.  413. 
Quoted  in  Little  Rock  &  Ft.  S.  R.  Co.  v. 
Miles,  13  Am.  &  Eng.  R.  Cas.  10,40  Ark. 
298,  48  Am.  Rep.  10;  Whitehead  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  39  Am.  &  Eng.  R. 
Cas.  410,  99  Mo.  ?63,  11  S.  W.  Rep.  751. 
Reviewed  in  Healey  v.  City  Pass.  R.  Co., 
38  Ohio  St.  23. 

Where  one  gets  on  a  car  merely  for  the 
purpose  of  riding  a  short  distance,  and  then 
jumps  oflf,  without  any  intention  of  paying 
his  fare,  and  docs  not  pay  fare,  nor  offer  to 
pay  it,  he  cannot  be  considered  a  passen- 
ger, even  though  the  driver  knew  he  was  on 
the  car,  unless  the  driver  had  consented  to 
his  being  and  remaining  on.  Muthlhaustn 
v.  St.  Louis  R.  Co..  a8  Am.  &»  Et^.  R.  Cas. 
159,  91  Afo.  333,  3  S.  W.  Rep.  315. 

Where  a  person  gets  upon  a  street-car  for 
the  purpose  of  becoming  a  passenger,  ex- 
pecting and  willing  to  pay  fare,  he  becomes 
a  passenger  for  hire,  although  the  con- 
ductor, owing  to  the  crowded  condition  of 
the  car,  may  fail  to  collect  the  fare  from 
him.  Cogswell  v.  West  St.  *•  A^.  E.  Elec. 
R.  Co.,  52  Am.  &*Et^.  R.  Cas.  500,  5  Wash, 
46,  31  Pac.Rep.  411. 

837.  Distinction  as  to  care  due 
paMengera  and  the  general  public. 


—A  rule  which  requires  a  carrier  of  pas- 
sengers to  exercise  the  greatest  diligence 
for  their  safe  transportation  does  not  apply 
to  persons  not  pasKngers.  Schniidtr  v. 
Second  Ave.  R.  Co.,  4  Sih.  App.  333, 133  A''. 
Y.  583,  30  A^.  E.  Rep.  753;  modifying  37/. 
*•  S.  536.  \%N.  y.  Supp,  559,  39  A'.  Y.  S. 
R.  370. 

While  the  employes  of  a  street  railroad 
are  bound  to  the  highest  degree  of  care  and 
prudence  in  the  management  uf  the  teams 
attached  to  the  cars,  with  a  view  to  securing 
the  safety  of  the  passengers,  a  different  rule 
prevails  as  to  the  general  public,  between 
whom  and  the  company  no  relation  arising 
out  of  contract,  express  or  implied,  exists. 
As  to  such  persons,  the  employes  are  only 
bound  to  exercise  what  amounts,  under  all 
the  circumstances  of  the  case,  to  ordinary 
care  and  prudence.  Pendleton  St,  R.  Co.  v. 
Shires,  18  Ohio  St.  355.— Following  Cleve* 
land  C.  A  C.  R.  Co.  v.  Terry,  8  Ohio  St.  57a 

c.  Negligence  of  Carrier. 

338.  Presumption  of  negligence- 
Proof  of  an  injury  to  a  passenger  raises  a 
presumption  of  negligence  on  the  part  of 
the  carrier,  but  this  presumption  may  be 
rebutted  by  showing  fault  on  the  part  of  the 
passenger.  City  &»  S.  R.  Co.  v.  Findley,  76 
Ga.  311. 

Liability  does  not  arise  in  all  cases  from 
the  mere  happening  of  an  accident,  as  where 
the  accident  is  unavoidable.  It  is  only  when 
the  accident  and  the  resulting  injury  are 
traceable  to  the  omission  of  some  legal  duty 
that  the  defendant  can  be  called  upon  to 
make  compensation  for  the  injury  done. 
Potts  v.  Chicago  City  R.  Co.,  33  Fed.  Rep.  610. 

The  fact  that  a  street-car  ran  off  the  track 
raises  a  presumption  of  negligence,  and  to 
rebut  it  the  company  must  show  that  it  was 
free  from  the  slightest  negligence,  and  that 
the  accident  could  not  have  been  prevented 
by  the  highest  degree  of  care.  Reading  City 
Pass.R.  Co.  v.  Eckert,(Pa.)  4  Atl.  Rep.  530. 

330.  Negligence  of  employes,  gen- 
erally.—Where  a  passenger  is  injured  by 
being  struck  by  the  shaft  of  a  wagon  pro- 
jecting into  the  car,  the  company  is  not 
chargeable  with  negligence  because  its  em- 
ployes had  pulled  down  the  curtains  at  the 
side  of  the  car,  to  keep  out  rain,  although 
the  passengers  were  thereby  prevented  from 
seeing  objects  in  the  street.  Potts  v.  Chicago 
City  R.  Co.,  33  Fed,  Rep.  610. 


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Where  a  company  has  established  a  gate, 
in  charge  of  a  keeper,  where  a  street-car 
track  crosses  a  railroad,  the  driver  of  an 
approaching  street-car  who  sees  the  gate 
open  has  a  right  to  presume  that  the  crack 
is  clear,  and  he  is  not  bound  to  stop  and 
look  for  trains  before  attempting  to  cross 
the  track.     Whelan  v.  NtW  York,  L.  E,  &* 

IV.  Ji.  Co.,  3i  Fed.  Rep.  IS. 

The  court  properly  re5t"'»>i  to  instruct  the 
jury  "that  it  was  not  th  •ly  of  the  driver 
of  the  street-car  to  stop  his  car  and  go 
ahead  on  foot  to  the  crossing  t  see  if  a  train 
was  approaching  unless  he  ^  ^  easonable 
ground  to  believe  a  train  w,'  i-pt  >aching." 
The  view  of  the  railroad  b-^  ^  obstructed, 
and  there  being  no  conductor  o  other  per- 
son on  the  car  to  exercise  this  vigilance,  the 
probability  of  danger  imposed  this  duty  on 
the  driver.  Central  Pass.  R.  Co.  v.  Kuhn, 
32  Am.  &*  Eng.  R.  Cas.  16,  86  Ky.  578,  6  S. 
W.  Rep.  441. 

It  is  within  the  scope  of  the  employment 
of  a  driver  who  is  also  a  conductor  to  re- 
ceive passengers  on  the  car,  and  to  let 
them  off.  Buck  v.  People's  St.  R.,  E,  L.  6- 
P.  Co.,  46  Mo.  App.  555.— Applying  Wilton 

V.  Middlesex  R.  Co.,  107  Mass.  108;  Rams- 
den  V.  Boston  &  A.  R.  Co.,  104  Mass.  117. 

Employes  are  in  their  line  of  duty  in  ren- 
dering assistance  to  young  or  infirm  persons 
in  getting  on  or  off  cars ;  and  the  company 
is  liable  for  an  injury  to  such  person,  re- 
ceived through  the  negligence  of  the  driver, 
while  attempting  to  get  on.  Drew  v.  Sixth 
Ave.  R.  Co.,  I  Abb.  App.  Dec.  {N.  Y.)  556,  3 
Keyes  429. — Following  Drew  v.  Sixth  Ave. 
R.  Co.,  26  N.  Y.  49. 

While  plaintiff  was  riding  on  one  of  de- 
fendant's cars  the  driver  jumped  off  and  the 
conductor  ran  through  the  car  shouting 
that  he  was  not  going  to  be  killed.  Plain- 
tiff followed  him  to  the  platform  and  was 
then  knocked  off  by  a  collision  of  some 
kind  not  explained.  Held,  that  the  facts, 
unexplained,  showed  a  clear  breach  of 
duty  on  the  part  of  the  carrier,  affirmatively 
establishing  negligence.  Kreuzen  v.  Forty- 
second  St.,  M.  &>  St.  N.  A.  R.  Co.,  38  N.  Y. 
S.  R.  461,  13  A^.  Y.  Supp.  588. 

The  fact  that  the  conductor  of  a  street- 
car is  inside  the  car  when  it  has  slowed  up 
at  a  street  crossing  to  permit  a  passenger 
to  ascend  is  no  evidence  of  negligence  on 
the  part  of  the  company.  Picard  v.  Ridge 
Ave.  Pass.  R.  Co.,  147  Po.  St.  195,  23  Att. 
Rep.  566. 


It  is  the  duty  of  a  street-car  driver  to  be 
skilful  and  prudent,  and  cautious  to  see 
that  his  passengers  are  not  injured  in  his 
car,  and  in  case  a  passenger  on  the  car  is 
injured  by  the  negligence  of  the  driver, 
the  company  is  liable  in  damages  for  such 
injury.  Negligence  in  a  car  driver  is  the 
want  of  such  care  and  prudence  as  skilful, 
prudent,  and  careful  car  drivers  observe 
under  similar  circumstances.  Allen  v.  Gal- 
veston City  R.  Co.,  79  Tex.  631,  15  S.  W. 
Rep.  498. 

340.    of  driver  in  whipping 

horses.— It  is  no  evidence  of  negligence 
in  a  driver  of  a  horse-car  that  he  whipped  a 
pair  of  horses  when  about  to  start  a  car  full 
of  passengers,  unless  there  appeared  to  be 
something  unusual  in  the  manner  of  his 
whipping.  Rochat  v.  North  Hudson  County 
R.  Co.,  30  Am.  &*  Eng.  R.  Cas.  644,  49  N. 
J.  L.  445,  9  Atl.  Rep.  688,  10  Atl.  Rep.  710. 
8  Cent.  Rep.  345 ;  reversing  48  A^.  /.  L.  401, 
5  Atl.  Rep.  276. 

341.  Negligent  use  of  bralce. '— 
Where  a  street-car  was  so  crowded  that  a 
passenger  was  compelled  to  stand  on  the 
platform,  and  there  was  evidence  from 
which  the  jury  might  fairly  have  inferred 
that  he  was  thrown  to  the  ground  by  the 
sudden  turning  of  the  brake,  a  verdict  in 
his  favor  for  the  injury  should  be  sustained. 
Chicago  City  R.  Co.  v.  Young,  62  ///.  238. 

A  passenger  on  a  street-car  who  wanted 
to  smoke  and  knew  the  driver  went  to  the 
front  platform  for  the  purpose.  A  large 
traveling  trunk  prevented  his  getting  on  the 
platform,  and  he  stood  on  a  lower  step  hang- 
ing only  by  the  driving  bar  and  the  iron  at 
the  side  of  the  car.  He  rode  some  distance, 
and  after  the  car  stopped  and  the  horses 
were  watered  the  driver  told  him  to  go  to 
the  rear  platform  if  he  wanted  to  smoke. 
He  started  a  minute  later  to  do  so,  but  as 
he  was  stepping  down  and  his  foot  was 
nearly  on  the  ground  the  driver  let  go  the 
brake,  the  car  started,  and  he  was  thrown 
down  and  injured.  Held,  in  an  action 
against  the  company,  that  these  facts  did 
not  make  out  a  cause  of  action.  Brown  v. 
Congress  &»  B.  St.  R.  Co.,  8  Am.  &»  Eng.  R. 
Cas.  383, 49  Mich.  153,  13  A';  W.  Rep.  494. 

In  an  action  for  personal  injuries,  caused 
by  the  handle  of  the  brake  on  the  front 
platform  of  a  street-car  striking  a  pas- 
senger, it  is  not  error  to  submit  the  question 
to  the  jury  upon  evidence  that  the  pas- 
senger had  gone  upon  the  front  platform  for 


STREET   RAILWAYS,  342-345. 


465 


the  purpose  of  leaving  the  car,  but  was  not 
in  the  act  of  leaving  when  struck,  where 
the  statute  provides  that  the  railroad  shall 
not  be  liable  for  injuries  to  "  oasscngers, 
occasioned  by  their  getting  off  the  car  at 
the  front  platform."  Nissen  v.  Missouri  R. 
Co.,  19  Mo.  App.  662. 

After  a  street-car  had  come  to  a  full  stop, 
plaintiff,  a  passenger,  stooped  to  pick  up 
his  bundle,  which  was  on  the  front  platform  ; 
as  he  did  so,  the  driver  released  the  brake, 
which  recoiled  and  struck  plaintiff's  head, 
causing  injuries.  Held,  that  the  case  was 
properly  submitted  to  the  jury  under  the 
rule  that,  in  such  circumstances,  defendant 
owed  to  plaintiff  the  duty  of  the  utmost 
care  and  diligence  of  very  cautious  persons. 
SchuUr  V.    Third  Ave.  R.  Co.,  i  Misc.  351, 

48  N.  V.  S.  R.  663,  20  iV.  V.  Supp.  683 ; 
affirming  \\  N.  Y.S.  R.  774,  17  N.  V.  Supp. 
834. — Reviewing  Maverick  v.  Eighth  Ave. 
R.  Co.,  36  N.  Y.  378. 

The  evidence  should  never  be  broader 
than  the  case  made  by  the  pleadings.  So 
where  a  passenger  sues  a  street-car  company 
for  being  negligently  thrown  from  the  car 
platform,  and  the  only  negligence  charged 
is  in  the  use  of  the  brake  by  the  driver  and 
in  the  manner  of  driving  the  horses,  which 
caused  him  to  be  thrown  down,  it  is  error 
to  admit  evidence  tending  to  show  negli- 
gence on  the  part  of  the  driver  after  he  was 
thrown  down.    Crooks  v.  Second  Ave.  R.  Co., 

49  JV.  V.  S.  R.  376,66  Hun  626,  mem.,  20  N. 
V.  Supp.  813. 

342.  Closliigr  car  door  on  passen- 
ger's baud.  —  Plaintiff  was  riding  on  a 
street-car  with  a  companion  and  had  her 
finger  cut  off  as  th^y  were  leaving  the  car  at 
the  rear  door.  The  door  of  the  car  was 
opened  or  shut  by  the  driver  froni  his  place 
in  front,  and  plaintiff  testified  that  she 
started  out  first,  and  in  passing  out  placed 
her  hand  on  the  side  of  the  door,  and  that 
the  door  closed  and  cut  off  her  finger.  The 
driver  and  another  witness  testified  for  the 
company  that  the  door  did  not  close  while 
plaintiff  and  her  companion  were  getting 
off.  It  appeared  that  the  accident  was 
immediately  proclaimed,  and  there  was  no 
other  way  of  accounting  for  it.  Held:  (i) 
that  it  was  negligence  in  the  driver  to  close 
the  door  before  they  had  time  to  leave  the 
car;  (2)  that  there  was  sufficier.i  evidence 
to  support  a  verdict  for  plaintiff.  McGlynn 
V.  Brooklyn  Cross/own  R.  Co.,  6  N.  Y.  S.  R. 
51,  43  Hun  656. 

7D.  R.  D.— 30 


343.  Stopping  on  street  crossings. 

— An  instruction  that  a  conductor  is  not 
bound  to  stop  his  car  ai  other  than  the 
usual  places  of  crossing,  nor  unless  he  saw 
the  person  who  desired  to  get  aboard,  is 
properly  refused  where  there  is  no  proof 
of  the  company's  rule  on  that  subject. 
Pleasants  v.  North  Beach  6f  M.  R.  Co.,  34 
Cal.  586. 

Plaintiff  sued  for  being  thrown  from  a 
car,  and  gave  evidence  that  he  had  told  the 
driver  to  stop  and  let  him  off,  that  the  brake 
had  been  applied  and  the  horses  had  come 
to  a  slow  walk,  and  plaintiff  went  to  the 
car  step  to  get  off,  but  was  thrown  down  by 
the  brake  being  suddenly  released  and  the 
horses  urged  forward.  The  company 
claimed  that  the  place  was  where  two 
streets  crossed,  and  by  an  ordinance  of  the 
city  it  was  unlawful  to  stop  at  that  place,  and 
that  the  driver  had  a  right  to  urge  the 
horses  forward  to  the  proper  place  to  stop. 
Held,  that  the  company  had  a  right  to  re- 
fuse to  stop  where  it  was  prohibited  from 
doing  so,  but  in  moving  forward  it  was 
bound  to  exercise  ordinary  care  to  prevent 
injury.  Medler  v.  Atlantic  Ave.  R,  Co.,  36 
N.  Y.  S.  R.  89,  12  A^.  K  Stipp.  930;  affirmed 
in  126  N.  Y.  669,  mem.,  37  N.  Y.  S.  R.  963, 
mem.,  27  A'^  E.  Rep.  854,  mem. — Applying 
Nichols  V.  Sixth  Ave.  R.  Co.,  38  N.  Y.  131. 

344.  Approachiuga  railroad  cross- 
ing at  a  rapid  rate.  —  It  is  a  question 
for  the  jury  whether  the  driver  of  a  horse 
car  is  guilty  of  negligence  in  approaching 
the  crossing  of  another  railroad  at  a  rate  of 
speed  which  will  not  enable  him  to  stop 
his  car  almost  instantly  upon  discovering 
another  car  approaching  on  such  track. 
And  if  he  does  approach  at  a  slackened  rate 
of  speed,  it  is  also  a  question  for  the  jury 
whether  he  was  not  guilty  of  negligence  in 
attempting  the  experiment  of  crossing  in 
front  of  the  car,  when  to  remain  where  he 
was  and  wait  its  crossing  would  result  in 
absolute  safety.  Schneider  v.  Second  Ave. 
R.  Co.,  4  Silv.  App.  232,  133  N.  Y.  583,  30  N. 
E.  Rep.  752;  modifying  27  J.  &*  S.  536,  15 
A^.  Y.  Supp.  556,  39  A^.  Y.  S.  R.  370. 

345.  Running  over  passenger 
who  has  fallen  from  car.  —  Where  a 
passenger  falls  off  a  street-car  that  is  in  full 
motion,  in  front  of  the  wheels,  and  the 
servants  in  charge  of  the  same  know  that 
he  is  off  the  car  and  holding  on  to  the  iron 
rail  to  save  himself  from  being  run  over,  it 
is  culpable  negligence  if  they  do  not  stop 


m 


\^- 


\    : 


466 


STREET   RAILWAYS,  346. 


M 


■ii:  ' 


$f^ 


'■'\ 


f-M 


in}  i 

I'ii'i 


the  car  and  thereby  save  him  from  injury. 
Chicago  W.  D,  R.  Co.  v.  Hughes,  69  ///.  170. 

In  an  action  for  an  injury  caused  by 
falling  off  the  front  rail  of  a  street-car  and 
being  run  over,  the  defendant's  testimony, 
which  was  not  contradicted,  showed  that 
the  driver  made  every  effort  to  rescue  the 
plaintiff  as  he  fell,  and  stopped  the  car  as 
soon  as  he  could.  Held,  that  so  far  as 
running  over  him  was  concerned,  there  was 
no  question  of  negligence  on  defendant's 
part  to  go  to  the  jury.  Downey  v.  Hendrie, 
8  Am.  <S-  Eng.  R.  Cas.  386,  46  Mich.  498,  41 
Am.  Rep.  347,  9  A'.  W.  Rep.  828. 

Where  a  passenger  falls  fror-  r^  car  plat- 
form and  is  injured  by  being  run  over,  it  is 
proper  to  instruct  the  jury  that  tlie  company 
is  liable  if  the  car  was  stopped  and  again 
negligently  started,  thus  causing  the  injury, 
which  would  not  have  been  caused  but  for 
such  starting,  though  plaintiff  may  have 
been  negligent  in  falling  from  the  car. 
McKeon  v.  Citizens'  R.  Co.,  42  Mo.  79. — 
Quoted  in  Burns  v.  Bellefontaine  R.  Co., 
50  Mo.  139. 

As  plaintiff  was  stepping  on  a  car,  it 
started  with  a  quick  jerk  which  threw  him 
down  and  dragged  him  some  distance. 
Held,  that  the  liability  of  the  company  was 
not  confined  to  negligence  after  he  v  aS 
thrown  down ;  and  it  was,  therefore,  proper 
to  refuse  an  instruction  that  held  the  com- 
pany not  liable  unless  its  employes  failed 
to  stop  the  car  as  quickly  as  they  could  after 
plaintiff  got  in  a  position  of  peril.  Morison 
V.  Broadway  6f  S.  A.  R.  Co.,  28  N.  V.  S.  R. 
498,  8  N.  V.  Supp.  436,  55  Hun  608; 
affirmed  in  130  N.  V.  166,  41  TV.  V.  S.  R. 
248,  29  N.  E.  Rep.  105. 

346.  Defects  iu  cars  or  appliances. 
— A  passenger  who  voluntarily  jumps  on  or 
off  a  car  while  it  is  in  motion  does  so  at  his 
peril,  and  a  construction  of  the  car  which 
is  only  unsafe  in  view  of  such  conduct  can- 
not be  said  to  be  defective.  So  held,  where 
plaintiff  undertook  to  jump  from  a  moving 
car  which  had  a  running  step  or  foot-board 
along  the  side,  and  caught  his  foot  in  a  hole 
in  the  riser  of  the  foot-board,  which  was 
ordinarily  safe,  and  only  made  dangerous  by 
the  position  of  plaintiff's  body  in  jumping 
or  falling  from  the  car.  Werbowlskyv.Ft. 
Wayne  &»E.  R.  Co.,  86  Mich.  236,  48  N.  W. 
Rep.  1097. 

It  was  a  question  for  the  jury  whether  the 
defendant,  which  permitted  and  invited 
passengers  to  ride  on  the  rear  platforms  of 


its  cars,  was  negligent  in  not  protecting  the 
platforms  with  guards  of  sufficient  height 
to  prevent  passengers  from  falling  off.  Matz 
V.  St.  Paul  City  R.  Co.,  52  Minn.  159,  53  A^. 
W.  Rep.  1071. 

Plaintiff  sued  for  an  injury  received  in 
alighting  from  a  moving  car,  and  alleged 
that  the  injury  was  caused  by  a  projection 
upon  the  step  of  the  car  which  caught  his 
heel  and  caused  him  to  fall.  At  the  trial 
plaintiff  admitted  that  he  looked  at  the  step 
before  he  placed  his  foot  upon  it  and  saw 
nothing  out  of  the  ordinary  course;  and 
numerous  witnesses  for  the  defendant  who 
were  in  a  position  to  know  the  condition  of 
the  step  agreed  that  it  was  then  in  perfect 
order.  Held,  sufficient  to  show  that  the 
step  was  not  defective,  and  that  the  injury 
was  not  caused  thereby.  Hitchcock  v.  Brook- 
lyn City  R.  Co.,  21  N.  V.  S.  R.  945,  50  Hun 
606.  3  iV.  Y.Supp.  218. 

A  car  started  out  in  good  condition,  but 
upon  the  approach  of  a  drunken  man  the 
driver  kept  the  rear  door  closed  against 
him.  Soon  afterward  he  discovered  that  the 
door  was  displaced  by  the  efforts  of  the 
man  to  force  it,  but  he  made  no  further  ex- 
amination as  to  its  condition.  On  the  trip 
plaintiff  attempted  to  enter  and  was  injured 
by  the  glass  from  the  door,  which  had  been 
fractured  by  the  drunken  man,  falling  on 
him.  Held,  that  the  driver  was  negligent 
in  not  discovering  the  condition  of  the  glass, 
and  either  warning  plaintiff  or  refusing  to 
admit  him,  and  the  evidence  was  sufficient 
to  make  a  prima  facie  case  of  negligence. 
Allen  V.  Dry  Dock,  E. B.  <S-  B.  R.  Co.,\^  N. 
V.  S.  R.  1 14,  2  N.  V.  Supp.  738. 

The  driver  of  such  car  was  in  sole  charge. 
Held,  that  knowledge  on  his  part  of  the 
condition  of  the  door  was  imputable  to  the 
company;  and  if  the  driver  was  negligent 
in  not  making  a  further  examination,  the 
company  was  chargeable  therewith.  Alien 
V.  Dry  Dock.  E.  B.  &*  B.  R.  Co.,  19  N.  Y. 
5.  /?.  1 14,  2  N.  Y.  Supp.  738. 

In  attempting  to  get  on  a  car,  plaintiff's 
foot  slipped  into  the  opening  at  the  back  of 
the  car  step,  and  he  was  injured.  The  evi- 
dence showed  that  the  step  was  an  open- 
back  one ;  that  for  seven  years  closed-back 
steps  had  been  in  common  use  on  horse-cars 
in  all  the  leading  cities  of  the  country,  and 
had  been  in  use  in  defendant's  city  for  five 
years,  and  were  in  use  on  a  part  of  its  cars ; 
that  the  closed-back  steps  were  both 
stronger  and  safer.    Held,  that  it  was  a 


STREET   RAILWAYS,  347. 


467 


question  for  the  jury  whether  defendant 
exercised  ordinary  care  in  retaining  the 
open-back  step.  The  fact  that  other  steps 
were  in  common  use  for  the  prevention  of 
such  accidents  would  justify  a  finding  that 
defendant  was  negligent.  Boehnckes.  Brook- 
lyn City  R.  Co.,  ^i  N.  Y.  S.  K.  434,  22  N.  Y. 
Supp.  7 1 2. 

As  plaintif!  was  leaving  a  car  she  was 
thrown  down  by  her  dress  catching  on  the 
sheet-iron  covering  of  the  car  wheel.  The 
evidence  showed  that  the  wheel  projected 
above  the  floor,  and  the  covering  was  made 
with  a  flange,  and  had  been  screwed  to  the 
floor,  but  had  become  partially  loosened, 
and  a  sharp  corner  projected  an  inch  or 
two  above  the  floor.  It  was  admitted  that 
the  defect  was  known  to  the  person  in 
charge  of  the  car.  Htld:  (i)  that  the  ques- 
tion whether  the  accident  was  caused  by 
the  defect  was  for  the  jury ;  (2)  that  the  evi- 
dence was  sufHciep  to  warrant  a  verdict  for 
plaintiff.  Chase  v.  Jamestown  St.  R.  Co., 
i^N.  Y.  Supp.  35,  60  Nun  582,  me//: .  38  JV. 
Y.  S.  R.  954;  affirmed  in  133  N.  -'.  619, 
nem.,  30  N.  E.  Rep.  11 50,  mem. 

A  passenger  on  a  street-car  may  recover 
for  an  injury  caused  by  the  car  colliding 
with  a  locomotive  car,  the  collision  being 
caused  by  the  defective  condition  of  the 
street-car  brakes,  of  which  the  company 
had  knowledge.  People's  Pass.  R.  Co.  v. 
IVeiller,  {Pa.)  2  All.  Rep.  510. 

Upon  a  street  railway  a  separate  track 
was  used  for  the  cars  going  in  each  direc- 
tion, and  frogs  were  so  placed  as  to  prevent 
cars  going  in  the  proper  direction  from 
being  thrown  from  the  track  while  going 
upon  or  leaving  a  swing  bridge.  A  loaded 
wagon  having  broken  down  on  the  bridge 
upoii  one  of  the  tracks,  a  car  approaching 
hereon  was  necessarily  lifted  to  the  other 
track,  and  being  then  driven  rapidly  upon 
the  bridge  was  thrown  from  the  track,  injur 
ing  a  passenger.  Held,  that  the  company 
was  not  negligent  in  not  placing  frogs  so  as 
to  prevent  a  car  thus  going  in  the  wrong 
direction  upon  the  track  from  being  thrown 
off,  but  that  the  question  whether  the  speed 
at  which  the  car  was  driven  upon  the  bridge 
was  not,  under  the  circumstances,  negligent, 
was  for  the  jury.  White  v.  Milwaukee  City 
R.  Co.,iZ  Am.  &*  Eng.  R.  Cas.  213,  61  Wis. 
536,  21  A^.  W.  Rep.  524.  50  Atn.  Rep.  154.— 
Followed  in  Stuart  v.  Havens,  1 7  Neb.  211. 

347.  Placing  or  maintaining  track 
too  near  other  structureH.— Where  a 


company  places  its  track  so  near  a  telegraph 
pole  or  other  obstruction  which  it  is  nec- 
essary for  its  cars  to  pass  that  its  passengers, 
in  getting  on  and  off  the  cars  and  while 
upon  tliem,  are  in  danger  of  being  injured 
by  contact  with  such  obstruction,  it  is  a  fair 
question  for  the  jury  whether  the  company 
is  or  is  not  guilty  of  negligence.  North 
Chicago  St.  R.  Co.  v.  Williams,  52  A/n.  &* 
E/tg.  R.  Cas.  522,  140  "f.  275,  29  N.  E.  Rep, 
672  ;  affir/ni/tg  40  //  ipp.  590.— Follow- 
ing Chicago,  B.  &  Q.  R.  Co.  v.  Gregory,  58 
111.  272.  Reviewing  Illinois  C.  R.  Co.  v, 
Welch,  52  111.  183.  Reviewing  and  fol- 
lowing Chicago  &  I.  R.  Co.  v.  Russell,  91 
111.  298. 

It  is  inexcusaoie  in  a  company  to  permit 
an  obstruction  to  stand  so  near  its  track  as 
to  render  the  use  of  the  step  or  running- 
board  dangerous  to  life  c;  limb,  inasmuch 
as  exceptional  cases  may  arise  where  it  is 
lawful  and  proper  for  a  passenger  to  use  such 
stepping-board.  North  Chicago  St.  R.  Co. 
v.  Williams,  52  Am.  &*  Eng.  R.  Cas.  522, 
140  ///.  275,  29  A'^  E.  Rep.  672 ;  affirming  40 
///.  App.  590. 

Defendant's  track  having  been  placed  near 
a  derrick  on  the  morning  of  the  day  of  the 
accident,  defendant  must  have  known  of  its 
proximity  to  the  cars,  and  was  bound  to 
use  all  reasonable  care  to  avoid  exposing 
passengers  to  danger ;  and  especially  is  this 
true  in  view  of  the  fact  that  passengers  were 
allowed  to  stand  on  the  side  steps  of  the  cars. 
Seymour  v.  Citizens'  R.  Co.,  58  Am.  &*  Eng. 
R.  Cas.  395,  114  Mo.  266,  21  S.  W.  Rep.  739. 

Plaintiff  entered  one  of  defendant's  open 
cars  on  the  easterly  side,  and,  with  the 
columns  of  an  elevated  railroad  in  full  sight, 
crossed  to  the  westerly  side  and  endeavored 
to  pass  forward  on  the  step  on  that  side, 
when  he  was  injured  by  his  shoulder  coming 
in  contact  with  one  of  the  columns,  which 
was  fourteen  inches  from  the  step.  There 
was  evidence  that  a  vacant  seat  could  have 
been  reached  by  him  without  crossing  the 
car.  Held,  that  defendant  was  not  negli- 
gent in  continuing  to  run  its  cars  on  its 
own  tracks  after  the  erection  of  the  col- 
uinns,  especially  in  view  of  the  fact  that  it 
made  its  open  cars  narrower  than  on  other 
roads ;  that  the  injury  was  either  the  result 
of  an  accident,  or,  if  due  to  any  negligence, 
more  to  plaintiff's  own  negligence  than  that 
of  defendant,  and  that  a  refusal  to  dismiss 
the  complaint  or  to  direct  a  verdict  for  de- 
fendant was  error.     Murphy  v.  Ninth  Ave, 


i  i 


i 


468 


STREET   RAILWAYS,  348-353. 


IM 


ij 


a.  Co., 6  Misc.  298,  26  N.  Y.  Supp.  783, 58  A^. 
Y.  S.  R.  140.— Approving  Moylan  v.  Sec- 
ond Ave.  R.  Co.,  128  N.  Y.  583 ;  Craighead 
V.  Brooklyn  City  R.  Co.,  123  N.  Y.  391. 

348.  Derailing  car.— Proof  that  an 
injury  to  a  passenger  was  caused  by  a  car 
running  off  the  track  at  a  place  where  the 
track  and  the  car  were  under  the  exclusive 
control  of  the  company  is  sufficient  to 
charge  it  with  nep;ligence,  in  the  absence  of 
evidence  that  the  accident  happened  with- 
out its  fault.  Feital  v.  Middlesex  R.  Co., 
109  Mass.  398, 6  Am.  Ry.  Rep.  300. — DISTIN- 
GUISHED IN  Pennsylvania  R.  Co.  v,  Mac- 
Kinney,  37  Am.  &  Eng.  R.  Cas.  153,  124  Pa. 
St.  462.  Quoted  in  eulf,C.  &  S.  F.  R.  Co. 
V.  Smith,  74  Tex.  276. 

340.  Alaiiitaining  platform  too  far 
firom  track.— Piaintifl  sued  for  an  injur" 
received  by  stepping  in  the  open  space  be- 
tween the  car  and  the  platform,  in  alight- 
ing from  a  car  running  over  the  Brooklyn 
bridge.  The  evidence  showed  that  the  car 
stopped  on  a  curve,  where  it  was  necessa- 
rily nearer  the  platform  in  the  middle  than 
at  the  ends.  The  evidence  was  conflicting, 
but  tended  to  show  that  tlie  space  at  the 
ends  of  the  car  was  from  eleven  and  a  half 
to  twenty  inches,  and  in  the  middle  from 
one  inch  to  seven  inches.  It  further  ap- 
peared that  plaintiff  had  often  crossed  be- 
fore, and  neither  she  nor  any  other  person 
had  been  injured  during  the  several  years 
that  the  cars  had  been  run.  Held,  that  the 
mere  existence  of  the  opening  in  itself  was 
not  suflicient  evidence  of  negligence  to  en- 
title plaintiff  to  recover.  Fox  v.  Mayor, 
ttc,  of  N.  Y.,  70  Hun  181,  53  iV.  Y.  S.  R. 
902,  24  N.  Y.  Supp.  43.— Following  Ryan 
V.  Manhattan  R.  Co.,  121  N.  Y.  126. 

350.  Speed  of  cars.  —  A  reasonable 
and  lawful  speed  for  a  street-car,  in  the  ab- 
sence of  statute  or  ordinance  upon  the  sub- 
ject, is  the  average  rate  of  carriages  used  to 
convey  passengers  by  horse  power.  Adoiph 
V.  Central  Park,  N.  &•  E.  R.  R.  Co.,  76  N. 
y.  530 ;  affirming  it /.  &*  S.  199. 

351.  Periiiittiug  baskets  in  cars.— 
A  street-car  company  is  not  chargeable 
with  negligence  because  it  permits  one  pas- 
senger to  bring  a  basket  on  the  car  and 
place  it  between  his  feet,  causing  another 
passenger  to  fall  on  leaving  the  car,  in  the 
absence  of  some  complaint  or  request  for 
the  removal  of  the  basket.  Van  Winkle  v. 
Brooklyn  City  R,  Co.,  46  Hun  564,  12  N.  Y. 
S.  R.  548. 


And  if  the  passenger,  with  full  knowledge 
of  the  obstruction,  undertakes  to  pass  it 
unassisted,  and  to  step  over  the  obstruction, 
he  thereby  assumes  all  the  dangers  and 
risks  of  such  passage,  and  the  result  of  the 
undertaking  cannot  be  charged  against  the 
company.  Van  Winkle  v.  Brooklyn  City  R. 
Co.,  46  Hun  564,  1 2  A^.  Y.  S.  R.  548. 

352.  Permitting  passengers  to  ride 
on  steps  or  platforms.— A  street-railway 
company  has  the  right  to  carry  passengers 
on  the  car  platforms.  Topeka  City  R.  Co.  v. 
Higgs,  34  Am.  &»  Eng.  R.  Cas.  529,  38  Kan. 
375,  16  Pac.  Rep.  667. 

The  failure  of  a  onductor  to  prevent 
plaintiff  from  stani..  .g  on  the  step,  or  to 
warn  him  of  any  possible  danger  which 
might  arise  therefrom,  is  not  negligence. 
Craighead  V.Brooklyn  City  R.  Co.,  123  A^.  Y. 
391, 25  N.  E.  Rep.  387,  33  N.  Y.  S.  R.  620 ;  re- 
versing 25  N.  Y.  5.  ^.  941, 5  A^.  Y.  Supp.  431. 

Whether  permitting  plaintiff  to  stand  on 
the  front  platform  and  get  off  from  it  were 
negligence,  and  proper  care  was  exercised 
in  not  stopping  the  car  sooner,  was  for  the 
jury.  It  is  the  duty  of  a  company  to  cause 
its  cars  to  come  to  a  full  stop  for  passen- 
gers to  get  off.  Crissey  v.  Hestonville,  M. 
&-  F.  Pass.  R.  Co.,  75  Pa.  St.  83.— Distin- 
guished IN  Hagan  v.  Philadelphia  &  G. 
F.  R.  Co.,  15  Phila.  (Pa.)  278. 

353.  Overloading  cars.  —  It  is  the 
duty  of  a  company  to  carry  passengers  with 
safety ;  and  if  the  death  of  a  passenger  re- 
sults from  the  carelessness  of  its  servants 
in  the  management  of  its  car,  or  from  a  de- 
fective track,  or  from  an  overloaded  car,  or 
from  all  combined,  the  company  will  be 
liable.  Chicago  City  R.  Co.  v.  Young,  62 
///.  238,  6  Am.  Ry.  Rep.  230. 

When  a  company  undertakes  to  carry 
large  numbers  of  people,  vastly  in  excess  of 
the  seating  capacity  of  its  cars,  and  permits 
passengers  to  ride  on  the  platforms  and  foot- 
boards without  objection,  and  collects  fare 
from  them,  and  stops  its  cars  when  in  such 
a  crowded  condition  that  no  seats  are  at- 
tainable, and  permits  passengers  to  get  upon 
them  to  be  carried,  and,  when  the  cars  are  in 
such  a  crowded  condition,  with  passengers 
riding  on  the  foot-boards,  runs  them  so  near 
the  intersection  of  a  switch  with  the  main 
track  that  they  cannot  pass  without  injury  to 
passengers,  the  company  is  guilty  of  gross 
negligence.  Topeka  City  R.  Co.  v.  Higgs, 
34  Am.  6-  Et^.  R,  Cas.  529,  38  Kan.  375,  16 
Pac.  Rep.  667. 


STREET  RAILWAYS,  354-306. 


469 


it 
n, 
id 
he 


ers 

V. 


Where  a  conductor  undertakes  to  carry 
more  passengers  than  can  sit  and  stand 
within  the  car,  and  both  platforms  are  filled 
to  their  utmost  capacity,  and  by  the  break- 
ing of  the  rear  platform  a  passenger  is 
thrown  to  the  street,  sustaining  permanent 
and  serious  injuries,  the  questions  as  to 
whether  the  platform  was  insecure  to  de- 
fendant's knowledge,  or  in  the  exercise  of 
proper  care  should  have  been  known  to  be 
insecure,  and  whether  defendant  was  negli- 
gent in  permitting  so  large  a  number  of 
persons  to  ride  upon  the  platform,  are  for 
the  jury.  Norris  v.  Brooklyn  City  R.  Co.,  4 
Misc.  (N.  Y.)  294.— Quoting  Lehrv.  Stein- 
way  &  H.  P.  R.  Co..  118  N.  Y.  556. 

354.  Excavating  under  or  about 
the  track.  —  Plaintiff,  a  passenger  in  an 
open  car,  was  thrown  out  and  injured.  It 
appeared  that  the  company  was  repairing 
its  track  at  the  plr  x,  and  had  removed  the 
paving  stones  in  the  street,  and  some  of 
them  had  not  bee/,  replaced  ;  and  there  was 
evidence  tending  to  show  that  the  absence 
of  the  paving  stones  made  the  passage  dan- 
gerous, and  that  this  caused  the  injury. 
Held,  that  there  was  evidence  of  defendant's 
negligence  which  was  p  operly  submitted  to 
the  jury.  Valentine  v.  Middlesex  R.  Co.,  137 
Mass.  28. 

Defendant  company  had  dug  a  trencb 
some  six  inches  deep  under  its  track,  and  a 
car,  on  which  plaintiff  was  a  passenger,  ap- 
proached in  broad  daylight.  The  workmen 
gave  warning  of  the  danger,  but  the  driver 
drove  on  at  a  trot,  and  when  the  front 
wheels  reached  the  excavation  the  track 
gave  way,  and  plaintiff  wd :  injured  by  the 
dropping  of  the  car.  Held,  such  proof  of 
negligence  as  to  justify  the  court  in  declar- 
ing it  such.  Daub  v.  Yonkers  R.  Co.,  52 
N.  Y.  S.  R.  527,  23  N.  Y.  Supp.  268,  69 
Hun  138. 

355.  Stopping  over  excavation 
made  by  city.— A  declaration,  in  an  action 
agamst  a  street-railway  company  for  injuries 
to  a  passenger  sustained  while  alighting 
from  one  of  defendant's  cars,  by  falling  into 
a  ditch  made  by  the  city  and  along  which 
the  car  was  stopped,  is  not  demurrable  in 
not  showing  that  the  condition  of  the  place 
where  the  car  stopped  was  such  by  reason 
of  the  absence  of  proper  safeguards,  the 
action  not  being  founded  on  negligence  in 
allowing  the  excavation  to  remain  without 
safeguards,  but  arising  out  of  the  duty  of 
the  defendant  as  a  carrier  of  passengers  not 


to  expose  the  passengers  to  any  danger  in 
alighting  which  could  be  avoided  by  the 
exercise  of  care.  Richmond  City  R.  Co.  v. 
Scott.  44  Am.  &*  Eng.  R.  Cas.  418,  86  Va. 
902,  II  S.  E,  Rep.  404. 

Where  a  street-car  is  stopped  over  an  ex- 
cavation made  by  the  city  in  a  street,  and 
the  passengers  are  not  warned  of  the  dan- 
ger, nor  assisted  in  alighting,  the  company 
is  liable  for  injuries  sustained  by  a  passen- 
ger who  steps  off  the  car  into  the  excava- 
tion. Richmond  City  R.  Co.  v.  Scott,  44  Am. 
6-  Eng.  R.  Cas.  418,  86  Va.  902,  11  S.  E. 
Rep.  404. 

356.  Throwing  snow  flrom  track 
to  street.* — While  a  company  has  the 
right  to  remove  snow  from  its  tracks,  it  is 
bound  to  exercise  reasonable  care  and  dili- 
gence in  so  doing,  and  if  it  negligently 
causes  upon  the  street  sich  an  accumula- 
tion of  the  snow  thus  removed  as  to  pro- 
duce an  obstruction  therein,  rendering 
travel  unsafe,  it  is  liable  for  injuries  caused 
thereby.  It  seems  the  same  duty  is  im- 
posed upon  such  companies  as  is  incurred 
by  every  owner  of  property  adjoining  the 
street  who  removes  snow  from  his  sidewalk 
to  the  street.  Dixon  v.  Brooklyn  City  6* 
N.  R.  Co.,  26  Am.  &*  Eng.  R.  Cas.  203,  100 
N.  Y.  170,  3  N.  E.  Rep.  65. 

Whatever  obligations  may  be  imposed 
upon  a  municipal  corporation  in  exercising 
a  supervisory  care  over  its  streets,  and  in 
preventing  and  removing  obstructions,  this 
does  not  relieve  the  owner  of  property  or 
of  franchises  from  liability  for  injuries  oc- 
casioned by  them,  and  continued  by  reason 
of  their  negligence.  It  is  the  duty  of  such 
a  corporation,  so  far  as  practicable,  to  fur- 
nish safe  and  proper  access  to  its  cars. 
Dixon  V.  Brooklyn  City  &*  N.  R.  Co.,  26  Am. 
6-  Eng.  R,  Cas.  203,  100  A''.  Y.  170,  3  A^  E. 
Rep.  65. 

Plaintiff's  evideace  was  to  the  effect  that 
he  attempted  to  enter,  by  the  rear  platform, 
one  of  defendant's  cars,  whici?  was  moving 
slowly ;  finding  the  platform  full,  he  passed 
along  by  the  side  of  the  car  to  reach  the 
front  platform ;  there  was  a  ridge  of  snow, 
about  three  feet  high,  along  the  track, 
thrown  up  by  defendant's  snow  plow  and 
sweepers,  sloping  towards  the  car,  and  so 
near  it  as  to  leave  merely  room  for  the  car 
to  pass ;  this  ridge  had  been  there  for  some 
weeks,  and  had  become  hard  and  slippery. 

*See  also  ante,  201,  273,  317. 


f.i 


470 


STREET   RAILWAYS,  357. 


!     i^ 


At  the  time  of  the  accident  it  was  covered 
with  a  thin  coating  of  recently  fallen  snow. 
In  passing  along  it,  plaintifT  slipped  and  fell 
under  the  wheels  of  the  car  and  was  injured. 
He/d,  that  the  evidence  justified  the  submis- 
sion to  the  jury  of  the  questions  of  negli- 
gence and  contributory  negligence.  Dixon 
V.  Brooklyn  City  6-  A'.  /?.  Co.,  26  Ant.  6- 
Eng.  R.  Cas.  203,  100  A'^.  Y.  170,  3  N.  E. 
Rep.  65.— Distinguished  in  Conway  v. 
Troy  &  B.  R.  Co..  i  N.  Y.  S.  R.  587,  41 
Hun  639. 

Defendant  ran  its  cars  for  a  portion  of  its 
route  over  the  track  of  another  company, 
under  a  license  by  which  the  licensor  was 
bound  to  keep  the  track  clear  from  snow. 
Defendant  claimed  that  the  accident  oc- 
curred upon  this  track.  Held,  that  conced- 
ing this  to  be  so,  as  defendant  contributed 
in  throwing  up  the  snow  bank  it  was  its  duty 
to  remove  it,  as  it  rendered  the  access  to  its 
cars  unsafe ;  and  for  a  negligent  omission 
to  perform  this  duty  it  was  liable.  Dixon  v. 
Brooklyn  City  &*  N.  R.  Co.,  26  Am.  &•  Eng. 
R.  Cas.  203,  100  N.  V.  170,  3  N.  E.  Rep.  65. 

Where  a  company  negligently  throws 
large  heaps  of  snow  on  a  street,  which 
cause  a  sleigh  to  overturn  and  frighten  the 
horse  attached  to  it  so  that  he  runs  away 
and  injures  plaintiff,  the  act  of  the  company 
in  leaving  the  snow  on  the  street  is  the 
proximate  cause  of  the  injury,  and  a  recov- 
ery may  be  had  against  the  company ;  and 
it  is  not  necessary  to  allege  in  the  complaint 
that  the  person  driving  the  horse  used  due 
care  where  it  charges  that  the  injury  was 
caused  by  the  nuisance  created  by  the  com- 
pany.    Lee  V.  Union  R.  Co.,  12  R.  I.  383, 

357.  CoIUdingr  with  other  cars.— 
It  appeared  that  plaintifT,  while  passing 
along  the  step  on  the  side  of  an  open  car, 
was  struck  by  one  of  defendant's  closed  cars 
coming  from  an  opposite  direction.  The 
undisputed  testimony  showed  that  the 
smallest  space  between^defendant's  tracks 
at  or  near  the  place  of  the  accident  was 
such  that  the  space  between  the  outside 
step  of  an  open  car  and  the  body  of  a  closed 
one  was  seventeen  inches  at  least,  and  at  the 
place  where  and  about  the  hour  when  the 
accident  occurred  cars  were  passing  each 
other  every  half  minute ;  that  people  fre- 
quently stood  at  this  place  between  defend- 
ant's tracks  when  cars  were  passing  each 
other ;  that  open  cars  had  been  in  use  on 
the  road  for  twenty  years,  and  at  that  place 
thouiands  of  passengers  had  stood  on  the 


steps  of  open  cars  while  they  passed  closed 
cars  going  in  the  opposite  direction  without 
accident  except  the  one  to  plaintiff.  Held, 
that  defendant  was  not  guilty  of  negli^-ence 
in  failing  to  have  more  space  between  its 
tracks  ;  that  the  accident  to  plaintiff  was 
not  to  be  apprehended,  and  a  failure  to  take 
such  measures  as  would  make  its  happen- 
ing under  any  circumstances  a  physical  im- 
possibility was  not  an  omission  of  duty  on 
its  part.  Craighead  v.  Brooklyn  City  R.  Co., 
123  N.  V.  391.  25  N.  E.  Rep.  387,  33  ^-  V- 
S.  R.  620;  reversing  2$  N.  Y.  S.  R.  941,  5 
A^.  Y.  Supp.  431. 

When  on  a  down  grade  the  driver  applied 
the  brake  to  check  the  speed,  the  chain 
broke,  and  the  car  collided  with  another 
ahead  and  plaintiff  was  injured.  It  appeared 
undisputedly  that  the  driver  did  all  that 
could  be  done  after  the  chain  broke  to  pre- 
vent an  accident  and  remained  at  his  post 
until  his  car  was  within  four  feet  of  the  one 
in  front.  There  was  no  evidence  tending  to 
show  that  the  driver  was  not  entirely  fit  for 
the  position,  or  that  he  at  any  time  had 
failed  to  use  proper  care.  The  trial  court 
left  it  to  the  jury  to  determine  whether  de- 
fendant employed  skilful  servants  on  the 
car,  and  whether  it  was  managed  with 
proper  care  and  skill.  Held,  error ;  that  con- 
ceding the  fact  that  the  driver  in  handling 
the  brake  used  more  force  than  was  abso- 
lutely necessary  to  check  the  speed  of  the 
car,  this  did  not  authorize  the  submission  of 
the  question  of  lack  of  skill  or  of  negligence ; 
nor  did  the  fact  that  the  driver  did  not 
shout  to  the  driver  of  the  forward  car,  at 
least  in  the  absence  of  evidence  that  this 
would  have  been  of  service  in  preventing 
the  injury.  IVynn  v.  Central  Park,  N.  &» 
E.  R.  R.  Co.,  133  A^.  Y.  575,  mem.,  30  A':  E. 
Rep.  721,  44  A^.  Y.  S.  R.  673  ;  reversing  38 
A^.  Y.  S.  R.  181,  14  A^.  Y.  Supp.  172. 

Plaintiff  was  injured  by  a  collision  be- 
tween defendant's  car  and  another.  The 
evidence  showed  that  the  morning  was 
foggy  and  that  defendant's  car  was  being 
driven  at  a  rapid  rate,  and  the  driver  ad- 
mitted that  he  heard  the  bell  of  the  other 
car  when  twenty-five  or  thirty  feet  distant. 
Held,  sufficient  to  justify  a  finding  of  negli- 
gence. Hourney  v.  Brooklyn  City  R.  Co.,  27 
N.  Y.  S.  R.  49,  7  A^.  Y'  Supp.  602  ;  affirmed 
in  130  A'.  Y.  641,  mem.,  29  N.  E.  Rep.  1033, 
mem.,  \\  N.  Y.  S.  R.  950,  mem. 

Plaintiff  was  riding  on  the  side  step  of  an 
open  car  and  was  struck  and  injured  by  a 


«  ' 


STREET   RAILWAYS,  358. 


m 


car  on  an  adjoining  track.  The  evidence 
showed  that  the  rails  of  tlie  two  traclts  were 
closer  together  at  the  place  than  was  safe, 
and  that  the  inner  rails  were  somewhat  de- 
pressed, so  as  to  throw  the  cars  nearer  to- 
gether, of  which  the  company  had  knowl- 
edge, ffe/d,  that  the  failure  of  the  company 
to  keep  its  track  in  good  order  was  such 
negligence  as  to  render  it  liable.  Herdt  v. 
Rochester  City  6-  B.  R.  Co.,  48  N.  V.  S.  R. 
46,  20  A^.  V.  Supp.  346. 

PlaintiiT  having  hailed  a  west-bound  car, 
on  the  north  track,  in  broad  daylight,  crossed 
over  from  the  south  side  of  the  street  to 
get  into  it;  the  east-bound  car  was  coming 
on  the  south  track  at  a  fast  trot,  but  was 
some  300  feet  away,  to  the  west.  Plain- 
tiff was  somewhat  intoxicated.  As  he  took 
hold  of  the  west-bound  car  to  board  it,  he 
fell,  and  the  east-bound  car  passed  over  his 
.foot,  which  was  on  the  rail.  The  jury  found 
that  there  was  no  negligence  on  the  part  of 
the  defendant,  and  that  plaintiff  was  not 
guilty  of  contributory  negligence,  on  which 
the  trial  judge  entered  judgment  for  the 
defendant.  Held,  that  the  attendant  or  sur- 
rounding circumstances  were,  in  the  absence 
of  explanatory  evidence  by  the  defendant, 
sufficient  to  raise  the  presumption  that 
there  was  negligence  on  the  part  of  those 
in  charge  of  the  east-bound  car  the  conse- 
quence of  which  was  the  happening  of  the 
accident,  and  that  there  must  be  a  new  trial. 
Forwood  V.  Toronto,  56  Am.  &*  Ettg.  R.  Cas. 
445.  22  Ont.  351. 

S58.  ColIidinfiT  with  objects  in 
street.*  —  Plaintiff  was  a  passenger  on  a 
street-car  and  was  injured  by  a  collision 
witli  a  wagon  which  was  approaching  on  a 
cross  street  at  a  right  angle  with  the  track. 
The  evidence  showed  that  it  could  have 
been  seen  by  the  driver  when  250  feet  dis- 
tant, and  that  the  car  could  have  been 
stopped  in  12  feet.  Held,  that  there  was 
sufficient  evidence  to  have  submitted  the 
case  to  the  jury,  and  a  nonsuit  was  error. 
Wat  kins  v.  Atlantic  Ave.  R.  Co. ,  20  Hun 
(N.  K)237. 

Where  a  passenger  is  injured  by  a  colli- 
sion between  a  coal  cart  and  a  horse-car, 
and  it  appears  that  the  driver  of  the  cart 
was  compelled  to  back  because  of  the  large 
load  of  coal  therein,  and  the  car  driver  at- 
tempted to  pass  by  before  the  cart  backed 

*  Passenger  on  street-car  coming  In  contact 
^kh  truck  in  street  Liability  of  company  for 
Injury,  see  48  Am.  &  Eng.  R.  Cas  49,  aistr. 


upon  the  track,  the  question  of  negligence 
should  be  left  to  the  jury.  Seidlinger  v. 
Brooklyn  City  R.  Co.,  28  Hun  503;  a/- 
firmed  {?)  97  N.  V.  642,  mem. 

Plaintiff  was  injured,  while  riding  in  a 
street-car,  by  a  collision  between  the  car  and 
a  furniture  van.  The  street-car  was  going 
very  fast  and  collided  with  the  rear  end  of 
the  van  as  it  was  about  to  leave  the  track, 
and  the  evidence  tended  to  show  that  the 
sole  cause  of  the  collision  was  the  failure  of 
the  driver  to  slacken  his  speed  so  as  to  per- 
mit the  van  to  pass  over  the  track.  Held, 
sufficient  to  sustain  a  verdict  in  favor  of  the 
plaintiff.  Franklin  v.  Forty-second  St.  &* 
G.  S.  F.  R.  Co.,  3  N.  Y.  Supp.  229,  50  Hun 
605,  21  iV.  Y.  S.  R.  944;  affirmed  in  1 21  N. 
Y.  673,  mem.,  24  N.  E.  Rep.  1095. 

Both  the  car  on  which  plaintiff  was  riding 
and  an  approaching  wagon  stopped  when 
near  each  other;  but  after  the  wagon  had 
started  again  the  car  also  started,  and  the 
shafts  of  the  wagon  struck  the  side  of  the 
car  and  injured  plaintiff.  Held,  that  it  was 
error  to  grant  a  nonsuit.  There  was  suffi- 
cient evidence  of  negligence  to  go  to  the 
jury.  Devlin  v.  Atlantic  Ave.  R.  Co.,  32  A''. 
Y.  S.  R.  958,  57  Hun  591,  mem.,  10  N.  Y. 
Supp.  848. 

Plaintiff  testified  that  he  was  riding  on 
the  front  seat  of  an  open  car  when  it  was 
driven  with  unchecked  speed  against  a 
horse  which  was  being  led  away  from  the 
track,  but  which  was  thrown  against  plain- 
tiff, causing  the  injury  sued  for.  This  evi- 
dence was  contradicted  by  both  the  con- 
ductor and  driver  of  the  car.  Held,  that  there 
was  not  such  a  preponderance  of  evidence  in 
favor  of  the  company  as  to  justify  a  dismissal. 
A  preponderance  does  not  mean  the  larger 
number  of  witnesses,  but  refers  to  its  weight 
and  character,  of  which  the  jurors  are  the 
judges.  Walker  v.  Atlantic  Ave.  R.  Co., 
34  N.  F.  5. ;?.  118,  1 1  N.  Y.  Supp.  742. 

A  verdict  in  favor  of  a  passenger,  against 
a  street-car  company,  to  recover  for  personal 
injuries,  is  sustained  by  evidence  showing 
that  the  car  driver  drove  with  such  force 
against  a  wagon  which  was  standing  across 
the  track  as  to  throw  plaintiff  from  the  car 
platform,  where  he  was  standing,  to  the 
f;round,  causing  the  injury.  Fox  v.  Brooklyn 
City  R.  Co.,  27  N.  Y.  Supp.  895, 7  Misc.  285. 

In  an  action  for  a  personal  injury  to  a 
passenger  in  a  street-car,  in  consequence  of 
a  collision  at  a  street  crossing  between  the 
car  and  a  hook  and  ladder  truck  coming 


■m 


IB: 


\ 


472 


STREET   RAILWAYS,  350-362. 


from  the  north,  it  appeared  that  the  car 
driver  did  not  look  to  the  north  when  ap- 
proaching that  street,  and  that  if  he  had 
done  so  he  might  have  seen  the  trucii  and 
have  taken  measures  to  avoid  it.  Held,  that 
the  question  of  his  negligence  was  properly 
submitted  to  the  jury.  Heucke  v.  Milwaukee 
City  R.  Co.,  69  Wis.  401,  34  A'.  W.  Rep.  243. 

350.  Failing  to  provide  a  cou- 
ductor.  —  In  tiic  absence  of  a  statute  re- 
quiring it,  a  failure  to  have  a  conductor  on 
a  one-horse  car  is  not  negligence.  Lamline 
V.  Houaton,  W.  S.  S-  P.  F.  R.  Co.,  14  Daly 
144,  6  N.  Y.  S.  R.  248.— Quoting  Brooklyn 
Crosstown  R.  Co.  v.  Brooklyn,  37  Hun  413. 

But  the  fact  liiat  tliere  was  no  person  in 
charge  ol  the  car,  aside  from  the  driver, 
may  be  ccinsidcrcd  as  a  circumstance  bear- 
ing on  the  question  of  the  negligence  of  the 
company.  Gainard  v.  Rochester  City  «S-»  B, 
R.  Co.,  iS  N.  v.  S.  R.  692,  2  N.  v.  Supp. 
470,  iQ  Hun  22;  affirmed  in  121  N.  K  661, 
vtem.,  2\  N.  E.  Rep.  1092. 

3GO.  Violation  of  city  ordinance.— 
In  the  absence  of  contributory  negligence,  a 
carrier  of  passengers  is  liable  for  personal 
injuries  resulting  directly  from  its  violation 
of  a  city  ordinance  passed  for  the  safety  of 
passengers.  Fortune  v.  Missouri  R.  Co.,  10 
Mo.  App.  252. 

301.  Injuring  passenger  who  is  as- 
sisting in  moving  car.*— A  street-car 
track  was  blocked  by  a  broken-down  van, 
and  plaintiff  and  other  passengers  were  re- 
quested by  the  conductor  to  get  out,  and 
help  "  jump  "  the  car  around  the  obstruction. 
While  doing  so  a  car  approached  from  the 
opposite  direction  and  those  in  charge  tried 
to  move  it  around  the  obstruction  in  the 
same  way,  but  took  the  same  side  of  the 
track  on  which  was  the  other  car,  and  plain- 
tiff was  caught  between  the  two  cars  and 
injured.  There  was  nothing  to  prevent  the 
second  car  from  being  moved  on  the  other 
side  of  the  track.  Held:  (i)  that  plaintiff 
was  lawfully  on  the  street ;  (2)  that  the  ques- 
tion of  the  negligence  of  the  defendant  was 
for  the  jury;  (3)  that  there  was  sufficient 
evidence  to  sustain  a  verdict  for  plaintiff. 
Stastney  v.  Second  Ave.  R.  Co.,  29  J.  &*  S, 
104,  46  N.  V.  5.  A'.  537,  18N.V.  Supp.  800; 
affirmed  in  i^ZN.  V.  609,  51  JV.  V.S.  R.  932 
33  N.  E.  Rep.  1082.     • 

Plaintiff  was  a  passenger  on  a  car  north- 
ward   bound.     The  railway  was  a   single 

See  also  post,  382. 


track,  with  occasional  side  tracks  for  the 
passage  of  cars  moving  in  opposite  direc- 
tions.  The  north-bound  car  having  been 
drawn  beyond  the  side  track,  where  it  was 
to  have  met  the  south-bound  car,  it  became 
necessary  to  push  it  back  to  the  side  track, 
so  tiiat  the  cars  could  pass.  At  the  request 
of  the  driver  of  the  north-bound  car,  plaintiff 
assisted  him  in  pushing  the  car  back.  While 
so  engaged,  without  fault  on  his  part,  he 
was  injured  by  the  carelessness  of  defend- 
ant's driver  on  the  south-bound  car.  Held: 
(i)  plaintiff  did  not  engage  in  the  service  of 
defendant  as  a  mere  volunteer ;  (2)  under 
the  circumstances  plaintiff  cannot  be  con- 
sidered as  a  fellow-servant  with  the  driver 
of  the  south-bound  car ;  (3)  in  the  case 
stated  the  doctrine  ol  respondeat  superior 
applies,  and  plaintiff  can  recover.  Mclntire 
St,  R.  Co.  V.  Bolton,  21  Am.&^Eng.  R.  Cas. 
501,  43  0/iio  St.  224,  54  Am.  Rep.  803,  i  N. 
E.  Rep.  333.— Reviewing  Wright  v.  Lon- 
don &  N.  W.  R.  Co.,  I  Q.  B.  D.  252. 

363.  Assaults  by  employes.*— 
Where  a  passenger  leaves  the  car  because  he 
is  insulted  and  abused  by  the  driver,  and 
is  pursued  and  beaten  by  the  driver  in  the 
street,  it  must  ail  be  regarded  as  one  contin- 
uous wrong,  and  the  company  is  as  much 
liable  as  if  the  beating  had  taken  place  in 
its  car.  Wise  v.  Covington  &^  C,  St.  R.  Co., 
91  Ky.  537,  16  5.  W.  Rep.  351.— Quoting 
Winnegarz/.  Central  Pass.  R.  Co.,  85  Ky.  547. 

A  conductor  on  a  street-car  may  push  a 
passengex  who  violently  assaults  him  off  the 
car  while  it  is  in  motion  without  rendering 
the  company  liable  for  the  injury,  if  he  had 
reason  to  believe  at  the  time  that  this  action 
was  necessary  to  his  protection.  Hayes  v, 
St.  Louis  R.  Co.,  isMo.  App.  583. 

Plaintiff  and  a  conductor  got  into  a  pro- 
tracted, angry  dispute  over  the  amount  of 
change  due  plaintiff  after  paying  his  fare. 
Tlie  conductor  claimed  that  plaintiff  had 
given  him  but  five  cents,  and  plaintiff  de- 
manded twenty,  saying  that  he  had  given 
twenty-five  to  the  conductor.  The  evidence 
■rhuwed  that  plaintiff  was  angry,  excited, 
violent,  and  abusive,  going  on  the  car  plat- 
form where  the  conductor  was  and  again 
charging  that  he  had  kept  twenty  cents,  and 
threatening  to  report  the  conductor  to  the 
company.    Thereupon  the  conductor,  with- 

*  Assault  by  street-car  driver  on  passenger. 
Liability  of  company  for,  where  contract  of  car- 
riage has  ceased,  see  41  Am.  &  Eng.  R.  CAS. 
39,  abstr. 


i 


STREET   RAILWAYS,  863-365. 


478 


out  stopping  the  car,  shoved  plaintifl  of!, 
causing  the  injuries  sued  for.  Ne/d,  that 
there  was  sufficient  to  go  to  the  jury  as  to 
whether  the  conductor  was  acting  within 
the  scope  of  his  employment,  and  a  verdict 
for  plaintifl  would  not  be  disturbed.  Flynn  v. 
Central  Park,  etc.,  R.  Co.,  lyJ.&'S.  (N.  Y.) 
8i.— Applied  in  Corbett  v.  Twenty-third 
St.  R.  Co.,  42  Hun  587,  4  N.  Y.  S.  R.  535. 

The  conductor  of  a  street-car  assaulted  a 
passenger  while  he  was  on  the  car.  The 
court  charged  the  jury  that  "  if  the  con- 
ductor of  the  car  assaulted  the  plaintifl 
while  he  was  upon  the  car,  he  neglected  the 
duty  imposed  on  him  by  law  as  the  agent  or 
servant  of  a  common  carrier,  and  in  the  line 
of  his  employment  he  committed  an  out- 
rage for  which  the  common  carrier  is  re- 
sponsible." This  charge  was  assigned, /«/«/- 
alia,  as  a  reason  for  a  new  trial.  Held,  in 
refusing  the  rule,  that  while  an  employer  is 
not  responsible  for  the  wilful,  tortious  acts, 
as  a  general  rule,  yet  in  this  case  the  con- 
ductor violated  a  duty  and  the  company  was 
responsible.  Smith  v.  Hestonville,  M.  &*  F. 
R.  Co.,\7  Phila.  (Pa.)  184. 

363.  Insults  and  assaults  by  other 
passengers.  —  Where  a  female  passenger 
sues  a  street-car  company  for  injuries  re- 
ceived at  the  hands  of  other  passengers  who 
became  riotous  and  fighting,  a  declaration 
alleging  negligence  in  the  company,  both 
in  respect  to  the  failure  to  have  a  conductor 
aboard  to  preserve  order  and  in  respect  to 
the  negligence  of  the  driver  in  failing  to 
suppress  the  fight  or  to  eject  the  combat- 
ants, is  good  on  demurrer.  Holly  v.  Atlanta 
St.  R.  Co.,  61  Ga.  215. 

After  the  driver  of  a  car  had  informed  the 
conductor  that  a  man  was  too  drunk  to 
ride  on  the  front  platform,  the  conductor 
took  him  in  the  car  when  he  was  dirty, 
ragged,  bloody,  with  his  clothes  unbuttoned 
in  a  indecent  manner,  and  he  soon  afterward 
made  an  unprovoked  assault  upon  another 
passenger.  Held,  that  the  company  was 
liable  for  full  compensatory  damages,  but 
not  for  punitive  or  exemplary  damages. 
Hendricks  v.  Sixth  Ave.  R.  Co.,  \2j.&*  S. 
(N.  K)8. 

In  an  action  to  recover  for  the  death  of  a 
passenger,  it  appeared  that  he  was  in  a  car, 
accompanied  by  ladies,  when  a  drunken 
man  entered  the  car  and  used  insulting  lan- 
guage toward  the  ladies.  The  deceased 
remonstrated  with  him,  and  appealed  to  the 
conductor  for  protection,  whereupon  tlie 


drunken  man  took  offense,  and  as  deceased 
was  leaving  the  car,  grabbed  a  car  hook 
belonging  to  the  company,  and  struck  him 
a  fatal  blow.  Held,  that  the  fact  that 
the  hook  belonged  to  the  company  would 
not  render  it  liable,  in  the  absence  of 
any  proof  of  negligence  or  wrong-doing  on 
the  part  of  the  employ6s.  Putnam  v.  Broad' 
way  S^S.  A.  R.  Co.,  1 5  A66.  Pr.  N.  S.  {N.  K.) 
383.— Distinguishing  Scott  v.  Shepherd, 
2  W.  Bl.  892  ;  Guille  v.  Swan,  19  Johns.  (N. 
Y.)  381  ;  Vandenburgh  v.  Truax,  4  Den.  (N. 
Y.)  464.  Quoting  Sharp  v.  Powell,  L.  R.  7 
C.  P.  258. 

304.  Male  passenger  stepping  on 
female  passenger's  foot.— A  company 
is  not  liable  to  a  passenger  for  an  injury 
received  by  another  passenger  stepping  on 
her  foot,  the  passenger  committing  the  in- 
jury being  somewhat  intoxicated,  and  stand- 
ing in  a  car,  holding  to  a  strap,  swinging 
or  lurching,  but  not  drunk  enough  to  justify 
his  expulsion,  though  the  guard's  attention 
had  been  called  to  the  man,  and  he  had  been 
requested  to  find  him  a  seat  or  put  him  off. 
Thomson  v.  Manhattan  R.  Co.,  75  Hun  548, 
27  A^.  Y.  Supp.  608. 

And  the  company  is  not  liable  to  a 
female  passenger  for  an  injury  received 
while  alighting  from  a  car  by  some  one 
stepping  on  her  foot,  caused  by  a  jam  of 
people  attempting  to  get  on  the  car  before 
plaintiff  and  others  had  left  it,  it  appear- 
ing that  the  guard  had  requested  those 
boarding  the  train  to  wait  until  those  get- 
ting off  had  left  it,  and  that  the  accident 
was  unintentional.  Thomson  v.  Manhattan 
R.  Co.,  75  Hun  548,  27  A^.  Y.  Supp.  608. 

365.  Liability  of  lessors  and  les- 
sees of  road. — A  company  cannot,  with- 
out the  authority  of  the  legislature,  transfer 
its  property  and  franchises,  and  notwith- 
standing an  unauthorized  transfer,  it  will 
remain  liable  for  injuries  to  passengers 
upon  the  cars  operated  by  the  transferee. 
Ricketts  V.  Birmingham  St.  R.  Co.,  37  Am. 
&*  Eng.  R.  Cas.  12,  85  Ala.  600,  $  So.  Rep. 
353.  —  Distinguished  in  Arrowsmith  v. 
Nashville  &  D.  R.  Co.,  $7  Fed.  Rep.  165. 

A  passenger  may  recover  for  personal  in- 
juries occasioned  by  the  negligence  of  a 
corporation  which  is  transporting  him  on  a 
railway  which  it  has  leased  unlawfully,  but 
is  using  and  maintaining  without  objection 
from  its  owners  or  the  commonwealth. 
Feital  v.  Middlesex  R.  Co.,  109  Mass.  398,  6 
Am.  Ry.  Rep.  300. 


il! 


I"; 


474 


STREET  RAILWAYS,  866. 


I;.  I 


I!-    ! 
11; 


■.J 


Where  a  corporation  seeks  to  escape  from 
the  burdens  imposed  upon  it  by  the  legisla- 
ture, clear  evidence  of  the  legislative  assent 
to  such  exoneration  sliould  be  (ound.  So 
held,  where  a  street-car  company  attempted 
to  avoid  liability  to  an  injured  passenger 
because  its  track  was  leased.  Braslin  v. 
SummerviUe  Hone  R.  Co.,  32  Am.  &*  Ettg, 
R,  Cas.  406,  145  Mass.  64,  4  A^.  Eng.  Rep. 
888,  II  N.  E.  Rep.  65. 

The  owner  of  a  pleasure  resort  and  street 
railway  leading  to  it  does  not,  by  leasing  the 
privilege  of  operating  a  switcliback  railway 
at  the  resort,  and  advertising  it  as  one  of 
the  attractions  of  the  place,  become  an  in- 
surer against  accidents  to  persons  patroniz- 
ing the  lessee,  or  become  liable  for  liis  care- 
lessness. Knottnerus  v.  North  Park  St.  R. 
Co.,  93  Mich.  348,  53  A^,  W.  Rep.  529. 

300.  Iqjuriugr  passeugcra  wliile 
getting  on  cars.*  — (i)  Duty  to  stop  a 
reasonable  time. — It  is  the  duty  of  a  company 
to  stop  its  car  a  sufficient  length  of  time  to 
enable  persons  seeking  passage  to  get  fully 
and  safely  on  the  same.  And  it  will  be  lia- 
ble to  a  party  injured  by  a  failure  properly 
to  discharge  such  duty.  North  Chicago 
St.  R.  Co.  v.  Cook,  145  ///.  551, 33  A'.  £:.  Rep. 
958.  Black  v.  Brooklyn  C.  R.  Co.,  13  N.  Y. 
S.  R.  645,  I  Silv.  App.  580. 

And  the  duty  devolving  en  those  in  charge 
of  the  car  to  give  ample  time  for  safely 
mounting  is  not  limited  to  the  person  or 
persons  who  may  have  signaled  the  car,  but 
includes  others  who  are  near  by,  and  desire 
to  take  passage.  Joliet  St.  R,  Co.  v.  Duggan, 
4S  ///.  App.  450. 

Where  the  allegation  was  that  plaintiff 
was  injured  by  the  careless  and  negligent 
starting  of  defendant's  car,  an  instruction 
defining  defendant's  duty  upon  the  theory 
that  the  car  was  in  motion  when  plaintiff 
got  hold  of  it  is  inapplicable,  yet  where  ap- 
pellant's asked  instructions  contained  a  sim- 
ilar fault  he  cannot  be  heard  to  complain. 
Meriwether  v.  Kansas  City  Cable  R.  Co.,  45 
Mo.  App.  528. 

Where  a  street-car  is  under  the  control  of 
a  conductor,  it  is  his  duty  to  see  that  a  pas- 
senger who  is  lawfully  entering  the  car  is 
in  a  place  of  safety  before  giving  the  signal 
to  the  driver  to  proceed.  Akersloot  v.  Sec- 
end  Ave.  R.  Co.,  4  Silv.  App.  71,  43  N,  Y.  S. 
X.  290,  21  N  E.  Ret.  626,  mem. ;   affirming 

*  Injuries  to  passengers  getting  on  street-cars, 
we  note,  36  Am.  &  Eng.  R.  Cas  216. 


56  Hun  640,  8  A'.  Y.  Supp.  926.  30  A^.  K,  S. 
R.  146. 

(2)  Starting  car  with  a  sudden  jerk.— 
The  carrier  must  allow  a  passenger  a  rea- 
sonable time  to  get  on  and  off  the  car,  and 
if,  in  doing  so,  the  car  is  started  suddenly 
and  so  as  to  produce  a  jerking  motion,  it  is 
in  and  of  itself  an  act  of  negligence,  and 
will  render  the  company  liatJe.  Gainard 
V,  Rochester  City  &>  B.  R.  Co.,  50  Hun  22,  18 
A',  y.  S.  R.  692,  2  A^.  y.  Supp.  470 ;  affirmed 
in  121  A'.  K  661,  mem.,  24  A^.  £.  Rep.  1092. 
Maker  v.  Central  Park,  N.  &*  E.  R.  R.  Co., 
J/.&'S.  (N.  r.)  15s  ;  affirmed  in  67  A'.  Y. 
52.  Morison  v.  Broadway  &*  S.  A.  R.  Co., 
28  A'.  Y.  S.  R.  498,  8  A'.  Y.  Supp.  436,  55 
Hun  608,  mew. ;  affirmed  in  130  A'.  Y.  166, 41 
A^.  Y.  S.  R.  248,  29  A^.  E.  Rep.  105.— DIS- 
TINGUISHING Hayes  v.  Forty-second  St.  & 
G.  S.  F,  R.  Co.,  97  N.  y.  2S9.—Sahlgaard  v. 
St.  Paul  City  R.  Co.,  48  Minn.  232,  51  A^.  IV. 
Rep.  III. 

And  the  fact  that  the  driver  had  been  in- 
structed to  hurry  on  and  not  take  any  other 
passengers,  which  fact  is  unknown  to  plain- 
tiif,  will  not  excuse  a  sudden  start.  Conner 
V.  Citizens'  St.  R.  Co.,  26  Am.  6-  Eng.  A'. 
Cas.  210,  105  Ind.  62,  55  Am.  Rep.  177,  4  N, 
E.  Rep.  441. 

Nor  the  fact  that  the  signal  for  starting 
was  given  by  an  unauthorized  person. 
North  Chicago  St.  R.  Co.  v.  Cook,  145  ///. 
551,  33  A^.  E.Rep.  958. 

Plaintifl  sued  for  personal  injuries  re- 
ceived, as  she  claimed,  through  the  negli- 
gence of  the  conductor  in  suddenly  starting 
the  car  before  she  had  time  to  get  on.  The 
company  denied  its  liability  en  the  ground 
that  she  attempted  to  get  on  the  car  while 
it  was  in  motion.  Held,  that  the  questions 
whether  the  car  was  negligently  started  and 
whether  plaintiff  exercised  proper  care  were 
for  the  jury.  Van  de  Venter  v.  Chicago 
City  R.  Co.,  26  Fed.  Rep.  32. 

Plaintiff  and  his  wife  testified  that  he 
had  signaled  to  the  driver,  and  the  car  had 
come  to  a  full  stop,  but  suddenly  started  as 
he  was  stepping  on,  throwing  him  down 
and  injuring  him.  Other  witnesses  for 
plaintiff  testified  that  the  car  had  not 
stopped,  but  had  slackened  its  speed  so  that 
persons  could  enter  it  without  risk.  De- 
fendant's witnesses  testified  that  it  had 
neith«^r  stopped  nor  slackened  its  speed,  but 
was  moving  at  an  ordinary  rate.  Held,  that 
the  questions  of  negligence  and  contribu- 
tory neRli};ence  were  for  the  jury.    Seitz  v. 


STREET   RAILWAYS,  366. 


475 


Dry  Dock,  E.  B.  &*  B.  R.  Co.,\(>  Daly  264, 
10  N.  V.  Supp.  I.  31  N.  V.  S.  R.  56. 

In  an  action  against  a  street-railway  com- 
pany to  recover  dania(;es  for  personal  in- 
juries, it  is  proper  to  submit  the  case  to  the 
jury  where  testimony  on  behalf  of  the 
plaintifT,  an  elderly  woman,  although  con- 
tradicted, tended  to  show  that  she  entered 
a  street-car  from  the  front  platform  on  the 
invitation  of  the  driver  and  before  she  was 
able  to  take  her  seat  the  car  was  started 
with  a  jerk  and  plaintifl  was  thrown  and  in- 
jured. Holmes  v.  Alltghtny  Traction  Co,, 
153  Pa.  St.  152,  25  Atl.  Rep.  640. 

la  such  a  case  it  is  improper  to  ask  an 
expert  witness  for  defendant  this  question  : 
"  State  what  your  experience  is  with  rela- 
tion to  motion  given  to  cars  when  starting, 
as  aflecting  the  passengers,  either  seated  or 
standing."  Holmes  v.  Allegheny  Traction 
Co.,  153  Pa.  St.  152.  25  Atl.  Rep.  640. 

There  was  evidence  tending  to  show  that 
the  driver  stopped  the  coach  to  receive  a 
passenger ;  that  the  coach  was  crowded  and 
all  the  seats  in  it  were  occupied  ;  and  that, 
immediately  after  she  had  got  in,  and  when 
she  was  standing  within  the  door,  she  was 
thrown  out  of  the  coach  by  its  violent  jerk 
at  starting.  Held,  that  there  was  some  evi- 
dence in  favor  of  plaintifl  to  go  to  the  jury. 
Geddes  v.  Metropolitan  R.  Co.,  103  Mass.  391. 

Plaintif!  testified  that  the  car  on  which 
she  wished  to  take  passage  had  stopped, 
and  wh^n  she  had  placed  one  foot  on  the 
step,  and  was  in  the  act  of  raising  herself, 
the  car  started  with  a  jerk  and  she  was 
thrown  violently  to  the  ground.  Her  evi- 
dence was  sustained  by  other  witnesses,  who 
testified  thai,  the  car  had  stopped  before  she 
attempted  to  get  on;  but  this  was  denied 
by  the  evidence  of  the  conductor  and  other 
witnesses  for  the  defendant.  Held,  that 
this  presented  a  question  for  the  jury,  and 
their  verdict  was  conclusive.  McSwynyv. 
Broadway  &*  S.  A,  R.  Co.,  27  N.  Y.  S.  R. 
363,  54  Hun  637,  4  Silv.  Sup.  Ct.  495,  7  A^ 
Y.  Supp.  456. 

In  such  case  it  was  not  a  controlling  cir- 
cumstance whether  the  car  was  started  by 
the  conductor  or  the  driver,  if  it  was  done 
while  plaintifl  was  attempting  to  get  on. 
By  whomsoever  it  may  have  been  put  in 
motion,  it  was  negligence  to  start  it  so  as 
to  throw  plaintifl  from  the  step.  McSwyny 
v.  Broadway  6-  S.  A.  R.  Co.,  rj  N.  Y.  S.  R. 
363,  54  Hun  637,  4  Silv.  Sup.  Ct.  495,  7  N. 
Y.  Supp.  456. 


Though  a  street-car  passenger  sues  to  re- 
cover for  injuries  caused  by  the  alleged 
negligence  of  the  driver  while  she  was  get- 
ting on  the  car,  yet  where  it  is  souglit  to 
show  the  incompetency  of  the  driver  gen- 
erally, it  is  competent  to  prove  his  acts  in 
suddenly  starting  the  car  after  the  accident, 
when  she  was  about  to  get  ofl.  Fuller  v. 
Jamti:  'H  St.  R.  Co.,  75  Hun  273,  26  A'.  Y. 
Supp.  io;S. 

Plaintiff  was  upon  the  rear  platform  and 
about  to  enter  a  street-car  when  the  driver 
snipped  up  to  a>'"id  a  collision  with  a  run- 
away hoise  p..id  carriage.  The  abrupt  jolt 
comniuni  ated  to  the  car  threw  plaintif!  to 
the  ground,  when  she  was  immediately 
struck  by  the  runaway  and  injured.  Held, 
that  the  court,  upon  request,  should  have 
instructed  the  jury  that,  even  if  the  car 
driver  was  guilty  of  negligence,  such  negli- 
gence was  not  the  proximate  cause  of  the 
injury  and  plaintiff  could  not  recover. 
South  Side  Pass.  R.  Co.  v.  Trich,  34  Am. 
«S-  Eng.  R.  Cas.  549,  117  Pa.  St.  390,  10 
Cent.  Rep.  367,  11  Atl.  Rep.  627,  20  IV. 
N.  C.  324. 

Plaintiff  approached  an  open  street-car 
from  the  rear  as  it  stopped,  without  signal- 
ing the  conductor  or  driver,  and  as  he 
stepped  on  the  running  step  at  the  side,  the 
car  started,  and  plaintifT  was  carried  against 
a  wagon  which  he  had  seen  in  the  street 
about  fifteen  feet  in  advance  of  the  car. 
There  was  no  evidence  that  the  conductor 
or  driver  saw  either  the  truck  or  plainti.f, 
or  perceived  the  danger.  Held,  that  a  non- 
suit was  properly  allowed.  Littmann  v. 
Dry  Dock,  E.  B.  <&-  B.  R.  Co.,  55  N.  Y.  S. 
R.  514,  25  N.  Y.  Supp.  IOC2.— Following 
Moylan  v.  Second  Ave.  R.  Co.,  128  N.  Y. 
583.  37  N.  Y.  S.  R.  871. 

(3)  Where  driver  does  not  see  the  passen- 
ger.—An  instruction  that  it  was  the  busi- 
ness of  a  company  to  know  before  starting 
up  the  car  whether  passengers  were  in  a 
position  to  be  injured,  and  that  it  would  be 
negligence  to  start  the  car  suddenly  under 
such  circumstances  without  exercising  every 
precaution  for  the  safety  of  those  that 
might  be  getting  off  or  on,  is  not  erroneous, 
where  it  appeared  that  the  person  injured 
was  sitting  alongside  of  the  gripman,  in  his 
immediate  view,  in  alighting  had  one  foot 
on  or  near  the  ground  and  the  other  upon 
the  lower  step,  and  was  holding  on  to  the 
stanchion  when  the  gripman  suddenly 
started  the  car.     Todin  v.  Omnibus  Cablt 


T    ill 


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476 


STREET  RAILWAYS,  867. 


I  '1  ■ 


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Co.,  (Cai.)  $8  ^m.  S»  £>|f .  J?.  Cax.  223,  34 
Pac.  Rep.  134. 

There  being  no  evidence  that  the  driver 
had  any  knowledge  of  the  purpose  of  plain- 
tiff's wife  to  get  on  the  car  as  a  passenger, 
nor  any  evidence  to  charge  defendant  by 
reason  of  such  purpose  or  intention  on  her 
part,  a  prayer  that  there  was  no  evidence 
from  which  defendant  could  be  charged 
with  any  responsibility  on  the  ground  that 
plaintiff's  wife  was  to  become  a  passenger 
on  the  car  in  question  ought  to  have  been 
granted.  Baltimore  City  Pass.  Ji.  Co.  v. 
Wilkinson,  30  Md.  224. 

If  a  car  driver  sees  a  signal  by  an  intend- 
ing passenger  and  stops  the  car,  but  starts 
it  again  while  the  passenger  is  getting  on, 
the  company  is  chargeable  with  negligence ; 
but  if  the  driver  exercised  the  care  required 
of  him  by  law,  out  did  not  see  the  pas- 
senger, and  had  no  knowledge  that  she  was 
in  the  act  of  getting  on  the  car,  then  the 
company  is  not  liable  for  an  injury  that 
results.  Lamline  v.  Houston,  W.  S.  &*  P. 
F.  R.  Co.,  14  Daly  144,  6  N.  V.  S.  R.  248. 

A  car  driver,  in  looking  out  for  persons 
desiring  to  becom*;  passengers,  is  bound 
to  exercise  ordinary  care  which  a  person 
ought  to  observe  under  the  circumstances  of 
the  case,  which  means  that  degree  of  care 
which  a  person  of  ordinary  prudence  is 
presumed  to  exercise  under  the  particular 
circumstances.  Lamline  v.  Houston,  W.  S. 
&*  P.  F.  R.  Co.,  14  Daly  144, 6  N.  Y.  S.  R.  248. 

Where  the  only  negligence  imputed  to 
the  defendant  is  the  act  of  its  driver  in 
starting  the  car  while  plaintiff  was  stepping 
on  the  platform  and  before  she  had  time  to 
enter  the  car,  it  is  error  to  refuse  defendant's 
request  to  charge  that,  if  the  drivr  was 
properly  engaged  in  attending  to  some  other 
duty  at  the  moment  when  plaintiff  came  to 
the  car,  and  he  thereby  failed  to  see  her,  he 
could  not  be  said  to  be  negligent,  and  de- 
fendant would  not  be  liable.  Gninard  v. 
Rochester  City  6*  B.  R.  Co.,  '/  N.  Y.  S. 
R.  103. 

(4)  Where  passenger  is  encumbered  with 
packages.  —  Plaintiff's  intestate,  a  man  ex- 
tremely stout  in  proportion  to  his  height, 
about  forty-five  years  of  age,  and  accustomed 
to  use  cars  daily,  while  encumbered  by 
packages,  one  in  each  hand,  attempted  to 
board  one  of  defendant's  cars  which  was 
moving  at  a  rate  of  more  than  six  miles  an 
hour,  and  was  killed.  Held,  that  defendant 
was  not  liable  unless,  discovering-  the  peril 


of  deceased,  it  failed  to  use  proper  diligence 
in  endeavoring  to  avert  the  injury.  Balti- 
more Traction  Co.  v.  State,  58  Am.  &*  Eng. 
R.  Cas.  200,  78  Md.  409,  28  Atl.  Rep.  397. 

If  the  car  was  moving  too  rapidly  for  a 
person  encumbered  as  the  deceased  was  to 
attempt  to  board  it,  there  was  no  duty  on 
the  part  of  defendant's  agent  to  notify  him 
not  to  make  the  effort.  Baltimore  Traction 
Co.  V.  State.  58  Am.  &*  Eng.  R.  Cas.  zoo,  78 
Md.  409,  28  Atl.  Rep.  397. 

(5)  Where  another  passenger  gives  s^nal 
to  start. — A  street-car  company  cannot  re- 
lieve itself  of  the  high  degree  of  care  which 
it  owes  its  passengers  by  showing  that  plain- 
tiff was  injured,  when  about  to  get  on  the 
car,  through  its  premature  starting  in  obe- 
dience to  a  signal  given  by  another  pas- 
senger. It  is  a  sufficient  answer  to  such  a 
d  3fense  that  the  bell  cord  was  so  arranged 
that  a  passenger  could  give  the  signal. 
North  Chicago  St.  R.  Co.  v.  Cook,  43  ///. 
App.  634 ;  affirmed  in  145  ///.  551,  33  A'l  ^. 
Rep.  958. 

(6)  Unavoidable  accident. —  In  attempting 
to  get  on  a  car,  plaintiff  fell  and  was  dragged 
some  distance  before  the  car  was  stopped.  It 
appeared  that  there  was  snow  on  the  ground 
and  the  car  was  on  a  down  grade.  There 
was  some  evidence  tending  to  show  that  the 
cars  would  sometimes  slide  on  the  track 
in  winter  after  the  brakes  were  set,  and  the 
driver  testified  that  he  did  set  the  brakes 
and  hold  the  horses,  but  the  car  slid  on  the 
track,  but  other  witnesses  contradicted  this. 
Held,  that  a  charge  that  it  must  be  taken  as 
established  that  the  cars  would  slide  on 
a  down  grade  in  winter  and  be  beyond  the 
control  of  the  driver  was  misleading,  as  it 
tended  to  convey  the  idea  that  it  was  estab- 
lished that  the  cars  did  slide  at  the  particu- 
lar time  in  question.  Woodard  v.  West 
Side  St.  R.  Co.,  34  Am.  &*  Eng.  R.  Cas. 
472,  71  Wis.  625,  38  N.  W.  Rep.  347. 

367.  While  getting  off.*  —  (i)  Gen- 
erally.—VJyun  the  driver  of  a  street-car  has 
been  notified  that  a  passenger  desires  to  get 
of!  at  a  certain  house,  and  has  agreed  to 
stop  the  car  at  such  place,  an  instruction 
that  if  the  passenger,  when  near  the  place, 
undertook  to  get  of!  the  car  while  it  was 
going  slowly,  the  driver  having  no  notice  of 
his  intention,  he  could  not  recover  for  a 

*  Injury  to  street-car  passenger  while  alight- 
ing, caused  by  sudden  starting  of  car,  see  44 
Am.  &  Eng.  R.  Cas.  433,  abstr ;  5a  Id.  555, 
abstr. 


STREET   RAILWAYS,  367. 


477 


nee 
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to 
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personal  injury,  although  the  car  started 
forward  as  he  was  stepping  of!,  which  threw 
him  to  the  ground,  is  properly  refused. 
Chicago  City  R.  Co.  v.  Mumford,  3  Am.  &* 
Eng..R.  Cas.  312,  97  ///.  560. 

Where  street-car  tracks  are  in  close 
proximity,  the  running  of  a  car  or  train 
of  cars  in  one  direction  at  a  rapid  speed, 
without  signal  or  warning,  over  a  sidewalk 
crossing,  while  a  car  or  train  bound  in  the 
opposite  direction  is  discharging  passengers 
at  such  crossing,  and  where  the  view  of  the 
approaching  train  is  obstructed  by  the 
standing  cars  from  which  the  person  injured 
has  just  alighted,  is  such  conduct  as  fairly 
tends  to  prove  culpable  negligence,  even 
though  the  rate  of  speed  of  the  approaching 
train  does  not  exceed  that  allowed  by  ordi- 
nance ;  and  it  cannot  be  said,  as  matter  of 
law,  that  such  conduct  is  not  negligence. 
Chicago  City  R.  Co.  v.  Robinson,  36  Am.  &» 
Eng.  R.  Cas.  66,  127  ///.  9,  4Z.  R.  A.  126, 
iZN.E.  Rep.  772  ;  affirming  27  ///.  App.  26. 

Notice  to  a  conductor  by  a  passenger  that 
she  wishes  to  stop  at  a  certain  place  does 
not  impose  upon  him  the  absolute  duty  of 
giving  her  express  notice  of  the  stoppage  of 
the  car  at  that  place,  or  require  any  other 
action  on  his  part  than  to  stop  for  a  reason- 
able time,  in  order  to  relieve  the  company 
from  liability  for  an  injury  which  she  re- 
ceived by  the  starting  of  the  car  while  she 
was  getting  of!  after  a  reasonable  stop, 
the  conductor  thinking  that  she  did  not 
intend  to  get  of!.  Robinson  v.  Northampton 
St.  R.  Co.,  157  Mass.  224,  32  2Y.  E.  Refi.  i. 

Passengers  have  a  right  to  assume  that 
the  car  will  not  be  started,  after  it  has 
stopped  to  allow  passengers  to  alight,  until 
the  driver  has  used  reasonable  care  and 
diligence  to  ascertain  whether  any  passenger 
is  in  the  act  of  alighting,  and  that  when  the 
car  is  started  it  will  be  with  reasonable  care, 
and  not  in  a  sudden  and  violent  manner. 
Britton  v.  Grand  Rapids  St.  R.  Co.,  90  Mich. 
159,  51  N.  W.  Rep.  276.  See  Finn  v.  Valley 
City  St.  &*  C.  R.  Co.,  86  Mich.  74,  48  N.  IV. 
Rep.  696. 

A  passenger,  on  leaving  ?  train  at  a  street- 
railway  station,  remains  a  passenger  while 
he  is  passing  to  the  sidewalk  in  so  far  that 
he  is  entitled  to  protection  against  the  neg- 
ligent movement  of  the  company's  trains  on 
an  adjacent  track.  Burbrii^e  v.  Kansas 
City  Cable  R.  Co.,  i^Mo.  App.  669.— Distin- 
GUiSHiNG  Hurt  V.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  94  Mo.  255. 


Passengers  are  not  obliged  to  leave  a  car 
until  it  has  been  brought  to  a  standstill ; 
and  have  a  right  to  insist  upon  that.  Suffer 
V.  Dry  Dock,  E.  B.  6*  B.  R.  Co.,  24 N.  Y.  S. 
R.  210,  53  Hun  629,  2  Silv.  Sup.  Ct.  343,  5 
A^.  Y.Supp.  700. 

The  duty  of  the  dri/er  of  a  street-car, 
upon  receiving  a  signal,  to  stop  in  order  to 
let  a  passenger  of!  is  a  matter  of  law.  His 
practice  on  such  occasions  is  irrelevant  to 
the  issue  in  an  action  for  injuries  to  a 
passenger  alleged  to  have  been  caused  by 
the  driver's  failure  to  stop  the  car  a  suffi- 
cient length  of  time.  Hinton  v.  Cream 
City  R.  Co.,  65  Wis.  323,  27  N.  W.  Rep.  147. 

(2)  Duty  to  stop  a  reasonable  time.  —  A 
railway  company  being  bound  to  deliver  a 
passenger,  its  failure  to  stop  long  enough 
to  enable  him  to  alight  with  safety  is  a 
neglect  of  duty  which  involves  liability  for 
injuries  therefrom.  Washington  fi»  G.  R, 
Co.  V.  Harmon,  58  Am.  &*  Eng.  R.  Cas.  380, 
147  U.  S.  S7I,  13  Sup.  Ct.  Rep.  557.  Wardle 
V.  New  Orleans  City  R.  Co.,  13  Am,  &*  Eng. 
R.  Cas.  60,  35  La.  Ann.  202. — Reviewing 
Poulin  V.  Broadway  &  S.  A.  R.  Co.,  6i 
N.  Y.  621,  mtm.— Poulin  v.  Broadway  &*  S. 
A.  R.  Co.,  61  N.  Y.  621 ;  affirming  2J.&* 
S.  296.— Followed  in  Pfeflfer  v.  Buflfalo 
R.  Co.,  4  Misc.  (N.  Y.)  465.  Reviewed  in 
Wardle  v.  New  Orleans  City  R.  Co.,  13 
Am.  &  Eng.  R.  Cas.  60,  35  La.  Ann.  202. 

Passengers  upon  street-cars  are  entitled 
to  sufficient  time  in  which  to  get  of!,  and 
the  duty  of  the  carrier  is  not  discharged 
until  the  passenger  is  free  from  the  car. 
Finn  v.  Valley  City  St.  &*  C.  R.  Co.,  86  Mich. 
74,  48  N.  W.  Rep.  696. 

(3)  Sudden  starts.— Where  the  driver  of  a 
street-car  has  been  notified  by  a  passenger 
to  stop  the  car,  and  does  so,  or  partially, 
and  then  starts  again  without  notice,  he 
is  chargeable  with  negligence.  Nichols  v. 
Sixth  Ave.  R.  Co.,  38  A^.  Y.  131 ;  affirming 

10  Bosw.  260.— Applied  in  Medler  v.  At- 
lantic Ave.  R.  Co.,  36  N.  Y.  S.  R.  89,  12  N. 
Y.  Supp.  gyi.—Munroe  v.  Third  Ave.  R. 
Co.,  iZ  J.  &*  S.  {N.  Y.)  M4.  Schrieberv. 
Twenty-third  St.  R.  Co.,  10  A^.  Y.  S.  R. 
441,  45  Hun  592.  Augusta  &*  S.  R.  Co.  v. 
Randall,  34  Am.  6-  Eng.  R.  Cas.  439,  79 
Ga.  304,  4  S.  E.  Rep.  674.  Chicago  City  R. 
Co.  v.  Mumford,  3  Am.  &»  Eng.  R.  Cas.  312, 
97  ///.  560.     Chicago  W.  D.  R.  Co.  v.  Mills, 

11  Am.  6*  Eng.  R.  Cas.  128,  105  ///.  63. 
Piper  V.  Minneapolis  St.  R.  Co.,  $2  Minn. 
269,  53  A^.  W.  Rep.  1060. 


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STREET   RAILWAYS,  367. 


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The  question  of  negligence  in  failing  to 
stop  a  street-car  long  enough  for  a  passenger 
to  get  off  is  for  the  jury.  At4gusta  &*  S. 
R.  Co.  V.  Randall,  34  Am.  &*  E»g.  R.  Cas. 
439.  79  Ga.  304,  4  S.  E.  Rep.  674. 

Plaintiff  indicated  his  wish  to  alight  at 
the  place  where  the  car  was  then  stopping, 
by  requesting  the  driver  to  keep  on  the 
brake.  The  driver  replied  "Yes,  sir,"  but 
instead  of  suffering  the  car  to  remain  sta- 
tionary until  plaintiff  should  alight,  he 
turned  the  brake  and  set  the  car  in  motion, 
thereby  precipitating  plaintiff  (who  was  in 
the  act  of  alighting)  from  the  car  into  the 
street,  causing  an  injury.  Held,  that  if  the 
jury  believed  the  evidence,  they  were  justi- 
fied in  finding  the  driver  guilty  of  negli- 
gence ;  and  that  it  was  not  the  province  of 
the  court  to  discredit  it  and  nonsuit  plain- 
tiff. Mulhado  v.  Brooklyn  City  R.  Co.,  30 
N.  Y.  370. 

It  is  error  to  submit  to  the  jury  the  ques- 
tion as  to  a  company's  negligence  causing  a 
passenger  to  fall  oft  by  an  alleged  sudden 
jerk  or  jolting  of  the  car  while  he  was  pre- 
paring to  alight,  in  the  absence  of  any 
affirmative  proof  by  'lim  as  to  what  caused 
the  jolting,  or  that  the  conductor  or  driver 
neglected  any  duty  except  to  stop  the  car 
when  first  signaled.  Bradley  v.  Ft.  Wayne 
6-E.R.  Co.,  ^\Mtck.  35  S3  A^.  W.  Rep.  915. 

Plaintiff  testified  that  the  car  on  which 
he  was  riding  came  to  a  stop  and  that  he 
followed  another  passenger  out  as  closely 
as  possible,  but  as  he  was  in  the  act  of 
stepping  off,  the  car  suddenly  started  and 
threw  him  into  the  street.  Two  witnesses 
for  the  defendant  testified  that  the  car 
stopped  to  let  the  other  passenger  off,  but 
had  started  up  again  before  plaintiff  went 
out,  and  that  he  fell  in  jumping  off.  This 
evidence  was  corroborated  to  some  extent 
by  a  witness  for  plaintiff,  who  testified  that 
he  did  not  see  him  fall,  but  saw  him  picked 
up  ten  or  fifteen  feet  from  where  the  car 
had  stopped.  Held,  that  there  was  such  a 
preponderance  of  evidence  against  plaintiff 
as  to  justify  the  court  in  setting  aside  a 
verdict  in  his  favor.  Kinsley  v.  Brooklyn 
Crosstown  R.  Co.,  i  N.  Y.  S.  R.  560,  41 
Hun  643. 

Where  the  action  is  for  injuries  caused  by 
the  n<>gligence  of  a  conductor  in  starting  a 
car  without  warning  plaintiff,  who  was  in 
the  act  of  alighting,  it  is  error  to  charge 
the  jury,  "  If  you  find  from  the  evidence 
that  this  plaintiff  was  in  the  act  of  getting 


off,  or  had  left  her  seat  for  any  purpose, 
and  the  car  started  and  she  was  thrown, 
the  conductor  had  no  right  to  start  it  with- 
out giving  her  warning  to  take  her  seat,  or 
an  opportunity  to  get  her  seat."  Loses  v. 
Watervliet  T.  6-  R.  Co.,  44  N.  Y.  S.  R. 
343,  63  Hun  404,  18  N.  Y.  Supp.  297.— Dis- 
tinguishing McDonald  v.  Long  Island  R. 
Co.,  116  N.  Y.  546,  27  N.  Y.  S.  R.  481. 

The  testimony  of  several  witnesses  for 
plaintiff  tended  to  show  that  while  she  was 
attempting  to  alight  from  the  car  she  was 
thrown  to  the  ground  and  injured,  by  reason 
of  the  car  starting  before  she  had  sufficient 
time  to  free  herself  from  it.  On  the  part 
of  defendant  there  was  evidence  that  she 
had  alighted  from  the  car  and  was  entirely 
separate  from  it  before  it  started.  Held, 
that  the  evidence  was  sufficient  to  support 
a  verdict  for  plaintiff.  Durfee  \.  Johnstown, 
G.  (S- AT.  Horse  R.  CV.,  71  Hun  279,  24  N.  Y. 
Supp.  1016,  54  N.  y.  S.  R.  526. 

Plaintiff  and  two  other  witnesses  testi- 
fied that  the  car  was  suddenly  started  while 
plaintiff  was  in  the  act  of  stepping  off, 
causing  her  to  fall.  The  conductor,  driver, 
and  four  other  witnesses  testified  for  the 
defendant  that  the  car  did  not  stop  at  all, 
not  even  after  plaintiff  fell ;  that  she  stepped 
off  while  the  car  was  in  motion.  There 
was  evidence  in  the  case  that  the  conductor 
reported  at  the  end  of  the  trip  that  he 
stopped  the  car  after  the  accident.  Held, 
sufficient  evidence  to  support  a  verdict  for 
plaintiff.  Fitton  v.  Brooklyn  City  R.  Co., 
25  A^.  Y.  S.  R.  948,  5  N.  Y.  Supp.  641 ; 
affirmed  in  127  N.  Y.  650,  mem.,  27  A';  E. 
Rep.  856,  mem. 

Where  plaintiff  testifies  that  the  accident 
occurred  by  reason  of  the  car  being  started 
too  soon,  it  is  error  to  instruct  the  jury  that 
they  may  consider  the  construction  of  the 
cat  as  bearing  on  the  question  of  defendant's 
negligence.  Lombard  6-  S.  St.  Pass.  R.  Co. 
V.  Christian,  124  Pa.  St.  114,  23  W.  N.  C. 
273,  16  Atl.  Rep.  628. 

(4)  IVhen  a  quest io-  for  jury. — Where 
there  is  evidence  tending  to  prove  that  the 
car  was  negligently  started,  the  question  is 
for  the  jury.  Chicago  W.  D.  R.  Co.  v.  Mills, 
II  Atn.  &*  Eng.  R.  Cas.  128,  105  ///.  63. 

Where  a  plaintiff  testifies  that  a  street- 
car did  actually  move  while  he  was  attempt- 
ing to  alight,  and  that  such  movement 
threw  him  to  the  ground,  causing  the  injury 
for  which  suit  is  brought,  the  question  of 
the  probability  or  possibility  of  the  move- 


STREET  RAILWAYS,  368. 


479 


ment  of  the  car  is  for  the  jury,  and  not  for 
the  court.  Finn  v.  Valley  City  St.  &*  C.  R. 
Co.,  86  Mich.  74,  48  N.  W.  Rep.  696. 

Where  a  passenger  sues  for  an  injury 
caused  by  a  sudden  start  before  he  is  com- 
pletely off  the  car,  it  is  error  to  charge  the 
jury  that  if  the  car  suddenly  started  forward, 
at  the  will  of  the  driver,  and  plaintiff  was, 
by  reason  of  the  jerk,  thrown  to  the  ground 
and  injured,  the  defendant  was  liable.  The 
question  whether  the  company  was  guilty 
of  negligence  in  starting  the  car  was  for  the 
jury.  West  EndSf  A.  St.  R.  Co.  v.  Mozely,  79 
Ga.  463,  4  S.  E.  Rep.  324.— DISTINGUISHED 
IN  Central  R.  &  B.  Co.  v.  Neighbors,  83 
Ga.  444,  10  S.  E.  Rep.  115. 

Plaintiff  testified  that  while  he  was  stand- 
ing on  the  step  of  defendant's  car,  expecting 
it  to  slack  up  and  stop,  it  increased  its  speed 
and  threw  him  off  and  against  a  cart.  The 
conductor  and  a  passenger  testified  for  de- 
fendant that  the  car  was  passing  over  a  curve 
at  a  corner  and  diminishing  its  speed  ;  that 
plaintiff  stepped  off  while  the  car  was  in 
motion,  and  ran  against  the  cart.  Held, 
that  it  was  for  the  jury  to  decide  which 
they  would  believe.  Saffer  v.  Dry  Dock,  E, 
B.  &*  B.  R.  Co.,  24  N.  V.  S.  R.  210,  53  Hun 
629,  2  Silv.  Sup.  Ct.  343,  5  JV.  V.  Supp.  700. 
—Reviewing  Maher  v.  Central  Park,  N.  & 
E.  R.  R.  Co.,  67  N.  Y.  52;  Eppendorf  v. 
Brooklyn  City  &  N.  R.  Co.,  69  N.  Y.  195  ; 
Solomon  /.  Manhattan  R.  Co.,  31  Hun  s> 

Plaintifl  and  another  passenger  testified 
that  plaintiff  twice  notified  the  driver  to 
stop,  and,  when  the  horses  came  to  a  slow 
walk,  stepped  upon  the  side  step  of  the  car, 
when  the  driver  released  the  brake  and 
struck  the  horse,  thereby  causing  a  sudden 
jerk  which  threw  plaintiff  off.  The  driver 
denied  releasing  the  brake  or  striking  the 
horse.  Held,  that  the  cause  was  a  proper 
one  for  the  jury,  and  that  a  verdict  for 
plaintiff  would  not  be  disturbed.  Medler  v. 
Atlantic  Ave.  R.  Co.,  36  A^.  Y.  S.  R.  89,  12 
N.  V.  Supp.  930;  affirmed  in  126  N.  Y.  669, 
mem.,  37  A^.  Y.  S.  R.  963,  27  A^.  E.  Rep.  854. 
—Distinguishing  Hayes  v.  Forty-second 
St.  &  G.  S.  F.  R.  Co.,  97  N.  Y.  259. 

(5)  In  letting  off  a  crippled  or  infirm 
person.— Tht  fact  that  a  passenger  is  evi- 
dently crippled,  infirn',  or  young  is  a  circum- 
stance which  must  be  regarded  by  a  carrier 
in  the  performance  of  its  duty  to  stop  a  car 
a  suflieient  len(;,'.h  of  time  to  give  the  pas- 
'  senger  a  reasonable  opportunity  to  alight 
in  safety.    Hideikour  v.  Kansas  City  Cable 


R.  Co.,  102  Mo.  270,  i^S.    W.  Rep.  889.  14 
S.  IV.  Rep.  760. 

(6)  Duty  of  driver  or  conductor  to  know  if 
passengers  are  off  before  starting. — It  is  the 
duty  of  the  driver  of  a  horse-car,  when 
signaled  to  stop,  not  only  to  stop  a  reason- 
able time  for  passengers  to  alight,  but  to  see 
and  know,  before  starting  again,  that  no  one 
is  in  the  act  of  alighting,  or  in  any  other 
perilous  condition.  Birmingham  Union  R. 
Co.  V.  Smith,  90  Ala.  60,  8  So.  Rep.  86. 
Metropolitan  R.  Co.  v.  fones,  i  App.  Cas. 
{D.  C.)  200.  Chicago  W.  D.  R,  Co.  v.  Mills, 
II  Am.  &•  Eng.  R.  Cas.  128,  105  ///.  63. 
North  Chicago  St.  R.  Co.  v.  Cook,  145  ///. 
ill,  ii  N.  E.  Rep.  9iZ. 

In  cases  of  injuries  to  passengers  alight- 
ing from  street-cars,  caused  by  the  prema- 
ture starting  of  the  car,  the  question  of 
the  negligence  of  the  company  or  contribu- 
tory negligence  of  the  passenger  ultimately 
depends  upon  whether  the  car  was  started 
when  the  passenger  was  in  the  act  of  getting 
off  under  such  circumstances  that  with  due 
regard  to  his  safety  the  employes  of  the  com- 
pany could  and  would  have  di^  ered  that 
he  was  in  the  act  of  alighting  before  the 
car  started.  Tobin  v.  Omnibus  Cable  Co., 
(Cal.)  58  Am.  &»  Eng.  R.  Cas.  223,  34  Pac. 
Rep.  124. 

368.  Duty  to  let  a  woman  off  who 
places  a  child  on  car.  —  Whether  a 
person  who  attends  a  child  in  boarding  a 
street-car,  for  the  purpose  of  placing  on  the 
car  small  packages  which  the  child  is  to 
have  in  charge,  has  frequently  before  done 
the  same  thing  at  the  same  place  when  the 
same  driver  of  the  car  was  on  duty,  la 
admissible  evidence  as  tending  to  show  that 
the  person  intended  to  get  off  after  deposit- 
ing the  packages,  as  she  had  done  on  the 
previous  occasions,  and  did  not  intend  to 
remain,  so  as  to  justify  the  driver  in  starting 
the  car  suddenly  while  she  was  getting  off. 
Houston  V.  Gate  City  St.  R.  Co.,  89  Ga.  272, 
\lS.  E.  Rep.  323. 

It  being  the  duty  of  the  driver  to  take 
notice  of  all  persons  entering  the  car,  his 
knowledge  that  plaintiff  did  enter  it  in  this 
instance  might  be  inferred ;  and  if  he  knew 
that  she  had  withdrawn  from  the  car  and 
alighted  in  numerous  previous  instances 
under  like  circumstances,  it  could  be  in- 
ferred that  he  knew  or  ought  to  have  known 
that  such  was  her  intention  on  the  occa- 
sion in  question.  Houston  v.  Gate  City  St. 
R.  Co.,  89  Ga.  272,  IS  5.  E.  Rep.  323. 


pi' 

n) 

i  ■ 

( 

t 


M'-' 


'\'\ 


480 


STREET   RAILWAYS,  360-373. 


360.  Duty  to  discharge  passenger 
at  proper  place.  —  It  is  the  duty  of  a 
company  to  select  a  reasonably  safe  place 
for  landing  passengers  wherever  it  may 
stop  a  car  for  that  purpose;  yet  if  the  place 
be  safe  for  a  passenger  to  get  off  while  the 
car  is  at  rest,  the  company  is  not  respon- 
sible for  any  peril  which  the  passenger 
incurs,  without  its  fault,  from  attempting  to 
alight  after  the  stoppage  has  terminated 
and  the  car  has  been  put  in  motion,  pro- 
vided a  reasonable  time  for  alighting  was 
allowed  while  the  car  was  at  rest,  and  the 
conductor  did  not  know  that  the  particular 
passenger  intended  to  get  ofT  at  that  place, 
and  did  not  see  him  attempting  to  get  off 
in  time  to  warn  or  prevent  him  from  so 
doing  while  the  car  was  in  motion.  Au- 
gusta  K.  Co.  V.  Glover,  58  Am.  &*  Eng.  R, 
Cas.  269,  92  Ga.  132,  18  S.  E.  Rep.  406. 

A  conductor  of  a  street-car  is  bound  to 
know  where,  under  the  circumstances,  it  is 
prudent  to  stop  the  car,  and  to  bring  a  pas- 
senger upon  the  platform  to  get  ofl.  Mav- 
erick V.  Eighth  Ave.  R.  Co.,  36  N.  V.  378.— 
Applying  Bowen  v.  New  York  C.  R.  Co., 
18  N.  Y.  408 ;  Deyo  v.  New  York  C.  R.  Co., 
34  N.  Y.  9.— Quoted  in  Griffith  v.  Utlca  & 
M.  R.  Co.,  43  N.  Y.  S.  R.  835.  Reviewed 
IN  Schuler  v.  Third  Ave.  R.  Co.,  48  N.  Y.  S. 
R.  663. 

370.  Liability  where  car  stops, 
but  not  to  let  off  passengers.— When 
a  car  stops  because  of  an  obstruction  on 
the  track,  and  not  to  afford  passengers  an 
opportunity  to  get  off,  the  company  is  not 
responsible  for  the  safety  of  the  place  aj 
one  for  getting  oil,  whether  the  car,  at  the 
time  the  passenger  undertakes  to  do  so,  be 
in  motion  or  at  rest,  the  conductor  not  see- 
ing the  passenger  or  being  aware  of  his 
purpose  at  the  time  the  attempt  to  get  off 
Is  made.  Augusta  R.  Co.  v.  Glover,  58  Am, 
&*  Eng,  R.  Cas.  269,  92  Ga.  132,  18  S.  E. 
Rep.  406. 

When  a  car  stops  at  a  place  where  the 
conductor  makes  his  report,  and  a  passen- 
ger attempts  to  get  off  without  notice  of 
such  intention,  and  it  does  not  appear  that 
such  place  is  one  where  passengers  usually 
get  on  and  off,  or  that  those  in  charge 
know  that  persons  are  actually  getting  off, 
and  they  start  the  car,  whereby  a  passenger 
is  thrown  and  injured,  the  company  will 
not  be  chargeable  with  negligence  in  start- 
ing the  car.  The  passenger,  before  attempt- 
ing to  get  off,  should  know  that  the  stop- 


page is  for  the  purpose  of  letting  persons 
off,  or  make  his  intention  to  get  off  known. 
Chicago  IV.  D.  R.  Co.  v.  Mills,  91  ///.  39. 

37 1.  Where  conductor  adds  to  in- 
jury in  effort  to  save  passenger.— 
A  female  passenger  was  about  to  alight 
from  a  street-car,  when,  at  a  signal  given  by 
the  conductor,  the  car  started,  and  the  con- 
ductor, seeing  the  passenger  about  to  fall, 
reached  out  to  save  her,  but  instead  struck 
her  in  such  a  way  as  to  add  to  the  force  of 
the  fall.  In  a  suit  against  the  company  a 
motion  was  made  to  set  aside  a  verdict  for 
the  plaintiff  on  the  ground  that  the  com- 
pany was  not  liable  for  any  increased  injury 
resulting  from  the  act  of  the  conductor  in 
thus  striking  her.  Held,  not  sufficient 
ground  for  disturbing  the  verdict.  Macer 
V.  Third  Ave.  R.  Co.,  15  /.  Sr*  S.  (JV.  Y.) 
461. — Following  Chapman  v.  New  Haven 
R.  Co.,  19  N.  Y.  341 ;  Barrett  v.  Third  Ave. 
R.  Co.,  45  N.  Y.  628 ;  Pollett  v.  Long,  56  N. 
Y.  201 ;  Slater  v.  Mersereau,  64  N.  Y.  138; 
Sauter  v.  New  York  C.  &  H.  R.  R.  Co.,  66 
N.  Y.  50.  Reviewing  Sheridan  v.  Brook- 
lyn City  &  N.  R.  Co.,  36  N.  Y.  39. 

372.  Where  conductor  pulls  pas- 
senger down  after  getting  off  cars. 
— Where  a  passenger  is  thrown  down  by 
the  conductor  holding  on  to  him  after  he 
has  left  the  car,  and  after  it  has  started,  he 
may  recover  from  the  company  for  any  in- 
juries received.  Bonney  v.  Bushwick  R.  Co., 
I  Hffw.  Pr.  N.  S.  (N.  V.)  66. 

d.  Contributory  Negligence.* 

373.  In  general.— The  responsibility 
of  a  company  for  the  safe  carriage  of  pas- 
sengers rests  upon  contract,  and  while  the 
law  casts  certain  duties  upon  the  company, 
there  is  a  corresponding  obligation  upon 
the  passenger  to  observe  the  reasonable 
regulations  of  the  company  in  entering, 
occupying,  and  leaving  the  cars,  and  for 
the  consequences  of  a  breach  thereof  the 
company  is  not  responsible.  Baltimore  City 
Pass.  R.  Co.  V.  Wilkinson,  30  Md.  224. 

There  is  no  rule  of  law  that  forces  a  pas- 
senger upon  a  street-car  to  rush  for  the 
steps  of  the  platform  as  soon  as  the  car 
stops,  or  that  forbids  his  giving  precedence 
to  a  lady,  or  to  others  more  infirm  than 
himself.  Britton  v.  Grand  Rapids  St.  R, 
Co.,  90  Mich.  159,  51  N.  JV.  Rep.  276. 

*  Contributory  negligence  of  passengers  on 
street-cars,  see  note,  48  Am.  &  Eno.  R.  Cas.  55. 


STREET   RAILWAYS,  374-377. 


481 


It  is  the  duty  of  a  passenger  getting  on  a 
street-car  to  place  himself  in  as  safe  a  posi- 
tion thereon  as  he  is  able  to  obtain,  and  it 
is  no  excuse  on  his  part  for  placing  himself 
in  an  unsafe  one  that  the  persons  in  charge 
know  that  he  is  unsafe  and  do  not  drive  him 
therefrom,  when  the  danger  is  equally  well 
known  to  him.  IVard  v.  Central  Park,  N. 
<S-  E.  a.  R.  Co.,  I  /.  &*  S.  (N.  V.)  392,  42 
No7v.  Pr.  289,  II  Ad6.  Pr.  JV.  S.  411.— Fol- 
lowing Clark  V.  Eighth  Ave.  R.  Co.,  36  N. 
Y.  13s ;  Solomon  v.  Central  Park,  N.  &  E. 
R.  R.  Co.,  I  Sweeny  298. 

374.  Care  of  passenger  on  street- 
car not  so  great  as  when  on  steam 
car.  —  Standing  upon  the  platform  of  a 
street-car  is  not  such  an  exposure  to 
danger  as  standing  upon  the  platform  of 
a  steam-railroad  car,  especially  when  no 
notice  is  given  not  to  stand  there.  Augusta 
<S-  S.  R.  Co.  V.  Rem,  55  Ga.  126. 

An  act  which  would  amount  to  gross 
negligence  in  getting  upon  a  train  drawn  by 
steam  might  be  prudent  if  done  on  a  horse- 
car  when  the  latter  is  not  in  rapid  motion. 
North  Chicago  St.  R.  Co.  v.  Williams,  52 
Am.  (5-  Ettg.  R.  Cas.  522,  140  ///  275,  29  A''. 
E.  Rep.  672 ;  affirming  40  ///.  App.  590.— 
Quoting  Germantown  Pass.  R.  Co.  v. 
Walling,  97  Pa.  St.  55. 

The  rules  applicable  to  persons  getting 
on  and  of!  steam-cars  are  not  to  be  applied 
in  full  force  to  railways  operated  by  horse 
power.  If  a  person  has  the  free  use  of  his 
faculties  and  limbs,  and  has  given  proper 
notice  of  his  desire  to  be  taken  up,  the  car 
having  slackened  its  speed,  it  is  not  negli- 
gence for  him  to  attempt  to  get  on  while  it 
is  moving  slowly.  Conner  v.  Citizens'  St.  R. 
Co.,  26  Am.  &*  Eng.  R.  Cas.  210,  105  /«</.  62, 
55  Am.  Rep.  177,  4  N.  E.  Rep.  441. 

The  same  rule  of  care  governing  travelers 
approaching  railroad  crossings  does  not 
apply  to  those  approaching  street-railway 
crossings.  Muncie  St.  R.  Co.  v.  Maynard, 
5  Ind.  App.  372,  32  A^.  E.  Rep.  343. 

375.  When  contributory  negli- 
gence not  a  defense.*— Though  a  per- 
son driving  on  a  street  may  be  careless  in 
failing  to  observe  the  approach  of  a 
car,  still,  if  the  driver  urges  his  car  forward 
at  an  unusual  rate  of  speed  when  by  reason- 
able diligence  the  party  might  have  L>een 
discovered  and  the  car  stopped,  the  com- 
pany is  liable  for  any  injury  that  is  caused 

*Ste  also  post,  511. 
7  D.  R.  D.— 31 


by  a  collision.  Citizens'  St,  R.  Co.  v.  Steen, 
19  Am.  &*  Eng.  R.  Cas.  30,  42  Ark.  321. 

A  plaintiff  may  recover,  notwithstanding 
his  own  negligence  exposed  him  to  injury, 
if  the  defendant,  after  becoming  aware  of 
plaintiff's  danger,  failed  to  use  ordinary  care 
to  avoid  the  injury.  Healey  v.  Dry  Dock,  E, 
B.  &*  B.  R.  Co.,  14  /.  <S-  S.  (iV.  Y.)  473. 
Central  Pass.  R.  Co.  v.  Rose,  (.Ky.)  22  S.  W. 
Rep.  745.  CawfieldM.  Asheville  St.  R.  Co.,  1 1 1 
A^  Car.  597,  16  5.  E.  Rep.  703.  Woodard 
V.  West  Side  St.  R.  Co.,  34  Am.  &*  Eng.  R. 
Cas.  472,  71  Wis.  625,  38  N.  W.  Rep.  347. 

Contributory  negligence  will  not  avail  as 
a  defense  where  injuries  to  a  horse-car  pas- 
senger are  caused  by  her  precipitately  rising 
from  her  seat  upon  seeing  the  defendant's 
steam-car  approach,  improperly  propelled. 
Holzab  v.  New  Orleans  &*  C.  R.  Co.,  38  La. 
Ann.  185. 

When  a  passenger  in  a  horse-car  has  been 
injured  by  the  carelessness  of  the  engintjer 
of  a  railroad  company  in  the  management 
of  his  locomotive,  it  is  no  defense  to  show 
contributory  negligence  in  the  driver  of 
the  horse-car.  Bennett  v.  New  Jersey  R. 
&*  T.  Co.,  36  A^.  /.  L.  225,  12  Am.  Ry. 
Rep.  79.  —  Disapproving  Thorogood  v. 
Bryan,  8  C.  B.  116.  Following  Chap- 
man ').  New  Haven  R.  Co.,  19  N.  Y.  341  ; 
Webster  v.  Hudson  River  R.  Co.,  38  N.  Y. 
260.  Not  following  Lockhart  v.  Lichten- 
thaler,  46  Pa.  St.  1 52. 

376.  Passenger  may  assume  that 
car  will  be  properly  managed.— 
Where  a  car  has  stopped,  and  the  driver 
knows  that  a  passenger  is  in  the  act  of 
getting  on,  the  latter  has  a  right  to  assume 
that  the  car  will  not  start  until  she  has 
gained  the  platform,  and  having  acted  upon 
that  assumption,  negligence  cannot  be  im- 
puted to  her.    Gainard  v.  Rochester  City  6* 

B.  R.  Co.,  50  Hun  22.  18  A^.  Y.  S.  R.  692; 
affirmed  in  121  A'^,  Y.  661,  mem,  24  A'^.  E. 
Rep.  1092.— Applying  Stackus  v.  New  York 

C.  &  H.  R.  R.  Co.,  79  N.  Y.  464 ;  Fordham 
V.  London,  B.  &  S.  C.  R.  Co..  L.  R.  4  C. 
P.  619.  Reviewing  Coleman  v.  South 
Eastern  R.  Co.,  4  H.  &  C.  699. 

377.  Standing  up  or  walking  in 
car.* — A  passenger  is  not  guilty  of  inex- 
cusable negligence  in  moving  about  on  the 
floor  of  a  horse-car  while  it  is  in  motion  ; 

*  Liability  of  street-car  companies  for  injuries 
to  passengers  while  getting  on  or  off  moving 
cars,  or  standing  up  in  cars,  see  41  Am.  &  Eno. 
R.  Cas.  234.  "^tt*"' 


482 


STREET   RAILWAYS,  378. 


8  ;'■> 


but  it  is  a  question  for  the  jury,  whether, 
under  the  circumstances,  it  shows  a  want  of 
reasonable  care.  Baltimore  &*  V.  Turn- 
pike Jioad  V.  Leonhardt,  27  Am,  &*  Ettg.  R. 
Cos.  194,  66  Md.  70,  5  At  I.  Rep.  346. 

A  person  who  enters  a  car,  the  seats  of 
which  are  all  occupied,  and  stands,  without 
objection  from  the  conductor,  and  supports 
himself  the  best  he  can,  is  not  chargeable 
with  contributory  negligence  because  he  is 
thrown  from  the  car  while  it  is  passing  a 
curve.  Lapointe  v.  Middlesex  R.  Co.,  28 
Am.  &»  Eng,  R.  Cas.  198,  144  Mass.  18,  10 
JV.  E.  Rep.  497.— Distinguishing  Wills  v. 
Lynn  &  B.  R.  Co.,  129  Mass.  351.  Quoting 
Meesel  v.  Lynn  &  B.  R.  Co.,  8  Allen  234. 

Although  the  driver  of  a  street-car  is 
somewhat  negligent  in  starting  his  horses 
while  a  passenger  is  walking  in  the  car,  the 
latter  is  guilty  of  contributory  negligence 
in  walking  there  when  she  knows  the  car  is 
about  to  start.  Dickson  v.  Broadway  &• 
S.  A.  R.  Co.,41  How.  Pr.  (N.  Y.)  151,  \J.&* 
S.  330 ;  appeal  dismissed  in  47  N.  Y.  507. 

All  the  seats  in  a  car  were  occupied,  and 
plaintiff  and  other  passengers  were  obliged 
to  stand.  The  car  ran  off  the  track  and 
came  to  a  sudden  stop,  and  plaintiff  was 
thrown  forward  and  received  injuries  from 
the  fall  and  from  other  passengers  being 
thrown  on  her.  Held,  that  it  could  not  be 
said  as  a  matter  of  law  that  plaintiff  was 
guilty  of  contributory  negligence.  Griffith 
V.  Utica  6-  M.  R.  Co.,  17  N.  Y.  Supp.  692, 
63  Hun  626,  mem.,  43  N.  Y.  S.  R.  835 ; 
affirmed  in  137  N.  Y.  566,  mem.,  50  A^.  Y.  S. 
^-  933. 33  A''.  E.Rep.  339.— Quoting  Lehrz/. 
Steinway  &  H.  P.  R.  Co.,  118  N.  Y.  556,  23 
N.  E.  Rep.  889. 

Plaintiff  sat  upon  a  rear  seat.  Being 
crowded,  as  he  testified,  he  attempted  to 
step  forward  by  using  the  step  on  the  out- 
side of  the  car,  when  he  was  struck  by  a 
post  of  an  elevated  railroad  and  injured. 
There  was  some  evidence  that  there  were 
seats  near  plaintiff  which  he  could  have 
taken.  Held,  that,  after  instructing  gener- 
ally as  to  negligence,  it  was  error  to  refuse 
an  instruction  that  if  plaintiff  left  his  seat 
unnecessarily  and  voluntarily,  not  request- 
ing that  the  car  be  stopped,  and  swung  him- 
self out  on  the  step  and  was  injured  thereby, 
he  could  not  recover.  Coleman  v.  Second 
Ave.  R.  Co.,  39  Am.  «S-  Eng.  R.  Cas.  456, 
1 14  A^  K  609.  21  AT.  E.  Rep.  1064,  24  A^.  Y. 
S.  R.  566;  reversing  41  Hun  380,  i  N.  Y.  S. 
R.  580. 


Where  a  husband  and  wife  enter  a 
crowded  car,  and  there  is  but  one  vacant 
seat,  and  he  surrenders  that  to  his  wife,  who 
is  physically  unable  to  stand,  he  is  not 
chargeable  with  contributory  negligence  be- 
cause he  stands  up.  Lehr  v.  Steinway  &* 
H.  P.  R.  Co.,  I  iSN.  Y.  556,  23  A^.  E.  Rep. 
889,  30  N.  Y.  S.  R.  1;  affirming  44  Hun  627, 
8  iV.  Y.  S.  R.  813.— Quoted  in  Norris  v. 
Brooklyn  City  R.  Co.,  53  N.  Y.  S.  R.  332; 
Griffith  V.  Utica  &  M.  R.  Co,  17  N.  Y. 
Supp.  692. 

Plaintiff  testified  that  while  a  passenger 
on  one  of  defendant's  summer  cars,  fur- 
nished with  transverse  seats,  he  arose  to 
signal  the  conductor  to  stop,  an(  tripped 
upon  the  sheathing  of  the  wheel,  '  .tending 
above  the  floor  but  leaving  ample  room  to 
enter  and  leave  the  car.  and  was  thus 
injured.  Held,  that  it  was  not  error  to 
enter  judgment  of  nonsuit.  Farley  v.  PAila- 
delphia  Traction  Co.,  132  Pa.  St.  58,  18  Atl. 
Rep.  1090.— Reviewing  Spear  v.  Philadel- 
phia, W.  &  B.  R.  Co.,  119  Pa.  St.  61. 

378.  Getting  on  overcrowded 
car.*- -It  is  contributory  negligence  for  one 
to  get  on  a  street-car  that  is  already  crowd- 
ed. Plaintiff  got  on  a  car  when  there  was 
no  room  except  on  the  front  platform,  but 
after  the  car  had  started  the  crowd  moved 
up  and  he  was  pushed  off.  Held,  that  he 
could  not  recover.  Tregear  v.  Dry  Dock, 
E.  B.  &*  B.  R.  Co.,  14  Abb.  Pr.  N.  S.  {N. 
Y.)  49- 

Defendant  company  ran  what  wu?:  c; 
a  stage  sleigh,  with  a  running  p.  '.  .. 
along  the  side,  which  was,  in  its  co  .si;  • 
tion,  intended  for  a  step  and  a  fencl>>:r  t 
it  appeared  that  passengers  were  in  the 
habit  of  riding  thereon  when  the  sleigh  was 
crowded.  Plaintiff  entered  the  sleigh,  but 
on  account  of  the  crowd  could  not  get  in- 
side and  was  compelled  to  stand  on  the 
step,  with  full  knowledge  of  the  danger, 
where  he  was  injured  by  another  vehicle  in 
the  street.  Held,  that  his  own  imprudence 
in  taking  such  a  position  would  prevent  a 
recovery.  Spooner  v.  Brooklyn  City  R.  Co., 
31  Barb.  {N.  Y.)  419 ;  reversed  in  54  N. 
Y.  230. 

Plaintiff  was  riding  on  an  open  horse- 
car,  and  on  account  of  its  crowded  condi- 
tion stood  on  the  foot-board  at  the  side  of 

*  Injury  to  street-car  passenger  by  being 
pushed  off  car  platform.  When  negligence  and 
contributory  negligence  questions  for  the  jury. 
sec  44  Am.  &  Enu.  R.  Cas.  434,  abstr. 


STREET   RAILWAYS,  370,  380. 


483 


the  car,  and  was  injured  by  being  struck  by 
another  car  passing  on  the  next  track, 
which  was  being  driven  rapidly  on  a  down 
grade.  Held,  that  the  questions  whether 
plaintiff  was  negligent  in  riding  in  such  a 
place,  how  far  he  had  notice  of  the  danger 
of  the  position,  whether  he  used  proper  pre- 
cautions to  secure  his  safety,  and  whether 
the  speed  at  which  the  car  was  driven  con- 
tributed to  the  injury,  were  properly  sub- 
mitted to  the  jury.  Geitz  v.  Milwaukee 
City  K.  Co.,  72  Wis.  307,  39  A':  IV.  Rep.  866. 

370.  Going  on  car  while  iutoxi- 
cated.— There  was  evidence  that  plaintiff 
was  drunk  at  the  time  of  the  accident,  and 
had  been  in  that  condition  for  the  preced- . 
ing  twenty-four  hours  ;  that  he  had  no  rec- 
ollection of  taking  the  car  or  of  any  of  the 
facts  connected  with  the  accident,  and  first 
came  to  a  realization  of  his  injuries  at  the 
hospital ;  that  shortly  before  the  accident 
he  was  standing  on  the  front  platform  with 
his  hands  on  the  guard  rail  and  his  body 
.swaying  back  and  forth;  that  the  rate  of 
speed  was  moderate,  being  four  or  five  miles 
an  hour,  and  that,  although  the  up  and 
down  motion  of  the  car  was  such  at  the 
time  plaintiff  went  off  as  to  throw  another 
passenger  against  the  driver,  there  was  no 
evidence  of  any  defect  in  the  rails  or  in  the 
roadbed.  Held,  that  the  jury  would  not 
have  been  warranted  in  finding  that  plaintiff 
exercised  due  care,  or  that  his  intoxication 
did  not  contribute  to  the  injury.  Holland 
V.  West  End  St.  R.  Co.,  155  Mass.  387,  29 
A^.  E.  Rep.  622. 

380.  Exposing  person  beyond  the 
car.  —  Plaintiff  sat  with  his  elbow  a  few 
inches  out  of  a  car  window.  While  the  car 
was  on  a  curve  his  arm  was  struck  and 
broken  by  another  car,  belonging  to  the 
same  company,  coming  the  other  way  on 
the  other  track.  Held,  that  plaintiff  was 
not  guilty  of  contributory  negligence,  and 
that  the  company  was  liable  for  the  injury. 
Summers  v.  Crescent  City  R.  Co.,  34  La  Ann. 
139,44  Am.  Rep.  419.— Distinguished  in 
Moore  v.. Edison  Elec.  Illuminating  Co.,  43 
La,  Ann,  792.  Followed  in  Schneider 
V.  New  Orleans  &  C.  R.  Co.,  54  Fed.  Rep. 
466.  Reviewed  in  Francis  v.  New  York 
Steam  Co.,  114  N.  Y.  380,  21  N.  E.  Rep. 
988,  23  N.  Y.  S.  R.  543. 

A  passenger  who  is  injured  in  the  night- 
time by  putting  his  head  out  of  a  window 
of  a  street-car  to  ascertain  the  color  of  the 
car  and  identify  it  must  show  that  he  had 


a  legitimate  and  pressing  object  in  view, 
which  could  not  be  otherwise  accomplished, 
and  that  his  head  struck  against  an  obsta- 
cle which  the  company  had  no  right  to  place 
where  it  was  when  the  accident  occurred, 
knew  to  be  dangerous,  gave  no  warning  of, 
and  negligently  kept  there.  Moore  v.  Edison 
Elec.  Illuminating  Co.,  43  La.  Ann.  792,  9 
So.  Rep.  433.— Distinguishing  Summers  v. 
Crescent  City  R.  Co.,  34  La.  Ann.  139. 

Where  a  passenger,  while  in  the  act  of 
taking  his  seat,  rests  his  hand  on  and  par- 
tially over  the  base  of  an  open  window,  and 
is  immediately  struck  and  injured  by  up- 
right sewer  planks  standing  inclose  proxim- 
ity to  the  passing  car  the  question  of  con- 
tributory negligence  is  for  the  jury.  Dahl- 
berg  V.  Minneapolis  St.  R.  Co.,  18  Am.  &* Etig. 
R.  Cas.  202,  32  Minn.  404,  21  A'^.  W.  Rep. 
545.— Reviewed  in  Francis  v.  New  York 
Steam  Co.,  114  N.  Y.  380,  21  N.  E.  Rep. 
988,  23  N.  Y.  S.  R.  543. 

Plaintiff  sat  in  a  street-car  in  the  summer- 
time with  his  arm  lying  on  the  window-sill, 
wholly  within  the  car,  as  he  testified,  but 
partly  without,  as  the  conductor  and  driver 
testified,  when  he  was  injured  by  coming  in 
contact  with  planks  that  had  been  set  up 
where  a  trench  was  dug  in  the  street.  There 
was  nothing  to  show  that  plaintiff  had  rea- 
son to  anticipate  danger,  and  those  in 
charge  of  the  car  gave  no  warning.  Held, 
that  the  question  of  his  contributory  negli- 
gence was  for  the  jury.  Francis  v.  New 
York  Steam  Co.,  114  N.  Y.  380,  21  N.  E. 
Rep.  988,  23  A^.  Y.  S.  R.  543,  affirming  13 
Daly  510,  I  A'^,  Y.  S.  R.  261.— Referring 
to  Holbrook  v.  Utica  &  S.  R.  Co.,  i6  Barb. 
113,  12  N.  Y.  244,  Reviewing  Dale  v. 
Delaware,  L.  &  W.  R.  Co.,  73  N.  Y.  468 ; 
Hallahan  v.  New  York,  L.  E.  &  W.  R.  Co.. 
102  N.  Y.  194  ;  Breen  v.  New  York  C.  &  H. 
R.  R.  Co.,  109  N.  Y.  297 ;  Dahlberg  v. 
Minneapolis  St.  R.  Co.,  32  Minn.  404; 
Summers  v.  Crescent  City  R.  Co.,  34  La. 
Ann.  139. 

Riding  in  such  position  in  a  horse-car  is 
not  negligence  per  se.  Miller  v.  St.  Louis  R. 
Co.,  5  Mo.  App.  471.  Germantown  Pass.  R. 
Co.  V.  Brophy,  16  Am.  <S-  Eng.  R.  Cas.  361, 
105  Pa.  St.  38. 

If,  without  reasonable  cause,  a  passenger 
places  his  person  on  the  outside  of  the  car 
in  which  he  is  riding  while  it  is  in  motion,  he 
assumes  the  hazards  of  so  doing.  Coleman 
V.  Second  Ave.  R.  Co.,  39  Am.  &*  Eng.  R. 
Cas.  456,  114  A'.   Y  609,  21  A^.  £".  Ref.  1064, 


:it|: 


ii^lf 


m 

lii 


I®;' 


484 


STREET   RAILWAYS,  381-384. 


24  V.  Y.  S.  H.  566 ;  rtvtrsing  41  Hun  380,  i 
N.  Y.  S.  R.  580. 

381.  Imputed    iieKligence.  —  The 

rights  or  responsibilities  of  a  passenger  in- 
jured in  a  street-railway  collision  are  not 
affected  by  the  negligence  of  the  driver  of 
the  car  in  which  he  is  riding.  Kuttner  v. 
Lindell  R,  Co.,  29  Mo.  App.  502.— DISAP- 
PROVING Thorogood  v.  Bryan,  8  C.  B.  115. 
The  driver  of  a  horse-car  is  not  the  agent 
of  a  passenger  so  as  to  render  such  passen- 
ger chargeable  for  the  negligence  of  such 
driver  Bennett  v.  New  Jersey  R.  &*  T.  Co., 
36  N.  J.  L.  225,  12  Am.  Ry.  Rep.  79.— Ap- 
proved IN  Little  V.  Hackett,  1 16  U.  S.  366 ; 
Covington  Transfer  Co.  v.  Kelly,  36  Ohio 
St.  86.  Followed  in  Noyes  v.  Boscawen, 
64  N.  \l.  361 ;  New  York,  L.  E.  &  W.  R. 
Co.  V.  Steinbrenner,  23  Am.  &  Eng.  R.  Cas. 
330,  47  N.  J.  L.  161. 

Where  a  street-car  collides  with  a  loco- 
motive of  an  ordinary  railroad  so  as  to 
injure  a  passenger  on  the  street-car,  in  an 
action  against  the  railroad  company,  the 
plaintiff  is  not  chargeable  with  the  negli- 
gence of  the  driver  or  conductor  of  the 
street-car.  McCallum  v.  Long  Island  R. 
Co.,  38  Hun  {N.  K)  569  ;  affirmed  in  103  N. 
Y.  686,  mem.,  7  N.  Y.  S.  R.  863,  mem. 

382.  As8istiii{;  in  getting  car  past 
an  obstriictiou.*  —  Where  a  passenger 
assists  in  moving  a  car  around  an  obstruc- 
tion, at  the  request  of  the  driver,  and  is 
injured  by  the  negligent  manner  in  which  a 
car  going  in  the  opposite  direction  is  moved, 
the  question  whether  he  contributed  to  his 
own  injury  is  for  the  jury.  His  negligence 
cannot  be  declared  as  a  matter  of  law. 
Stastney  v.  Second  Ave.  R.  Co.,  46  N.  Y. 
S.  R.  537  18  A':  K.  Supp.  800,  29/.  <&- 
S.  104;  affirmed  in  138  N.  Y.  609,  mem., 
51  N.  Y.  S.  R.  932,  mem.,  33  N.  E.  Rep. 
1082,  mem. 

383.  Trespasser  —  Unlawful  entry 
on  car. — The  court  is  not  prepared  to  hold 
that  a  party  is  a  trespasser  after  he  gets 
upon  a  horse-car,  even  though  no  fare  has 
been  ftollected  of  him  before  he  meets  with 
an  injury,  simply  because  he  has  violated  a 
rule  of  the  company  as  to  the  mode  of  his 
getting  on.  North  Chicago  St.  R,  Co,  v. 
Williams,  52  Am.  &*  Eng.  R.  Cas.  522,  140 
///.  275,  29  N.  E.  Rtp.  672 ;  affirming  40  ///. 
App.  590.— Distinguishing  Chicago,  B.  & 
Q.  R.  Co.  V.  Mehlsack,  131  111.  61. 

*  See  also  ante,  301. 


384.  Falling  to  hold  to  car  handle« 
or  other  object,  while  getting  on  or 
oflf.— It  is  a  question  for  the  jury  whether 
plaintiff's  intestate  was  negligent  in  riding 
on  a  platform  without  holding  to  the  car 
for  the  purpose  of  supporting  himself. 
Matz  V.  St.  Paul  City  R.  Co.,  52  Minn.  159, 
53  N.  IV.  Rep.  1071. 

After  signaling  a  car  to  stop,  and  as 
plaintiff  was  in  the  act  of  stepping  on,  the 
conductor  signaled  it  to  start,  and  plaintif! 
was  thrown  down  and  injured  by  a  car 
passing  in  the  opposite  direction  on  an  ad- 
joining track.  The  evidence  showed  that 
the  platform  was  crowded,  which  prevented 
hisgetting  iiold  of  the  hand  rail.  Held,  that 
the  question  of  his  contributory  negligence 
was  for  the  jury.  Black  v.  Brooklyn  City 
R.  Co.,  13  iV.  Y.  S.  R.  645.  I  Silv.  App.  580. 

It  is  not  negligence /^r  se  for  a  passenger 
to  step  aboard  a  standing  street-car,  when 
the  platform  is  unoccupied,  without  taking 
hold  of  the  railings  to  guard  against  the 
sudden  movement  of  the  car,  and  particu- . 
larly  when  the  person  in  charge  of  the  car 
has  been  notified  that  the  passenger  is  in 
the  act  of  entering.  Gainard  v.  Rochester 
City  &-  B.  R.  Co.,  \8  N.  Y.  S.  R.  692,  2  N. 
Y.  Supp.  470,  50  Hun  22 ;  affirmed  in  121 
A^.  Y.  66t, mem. ,24  N.  E.  Rep.  1092,  mem. — 
Following  Filer  v.  New  York  C.  R.  Co., 
49  N.  Y.  47 ;  Keating  v.  New  York  C.  R. 
Co.,  3  Lans.  469;  Totten  v.  Phipps,  52  N, 
Y.  354.  Reviewing  Fordham  v.  London, 
B.  &  S.  C.  R.  Co.,  L.  R.  4  C.  P.  619;  Cole- 
man V.  South  Eastern  R.  Co.,  4  H.  &  C.  699. 

It  is  not  contributory  negligence,  as  a 
matter  of  law,  for  a  female  passenger  to  fail 
to  take  hold  of  the  arms  at  the  ends  of  the 
seats  on  leaving  the  car.  Chase  v.  James- 
town  St.  R.  Co.,  38  A^.  Y.  S.  R.  954,  60  Hun 
582,  tnem.,  i^  N.  Y.  Supp.  35;  affirmed  in 
133  N.  Y.  619,  mem.,  30  A^.  E.  Rep.  1150, 
mem.,  44  A'.  Y.  S.  /f.  931,  mem. 

A  woman,  with  her  child  on  her  left  arm. 
slipped  an  !  fell  in  alighting  from  a  street- 
car. There  was  evidence  that  when  there 
was  ample  room  for  all  in  the  car,  a  passen- 
ger was  permitted  to  stand  on  the  platform 
in  such  u  position  that  she  could  not  get 
hold  of  the  dasher  c<^  the  car,  and  also  that 
there  was  ice  on  the  steps  of  the  car,  formed 
the  previous  day ;  that  she  knew  of  the  ice, 
and  that  had  she  carried  her  child  on  her 
right  arm  she  could  have  taken  hold  of  the 
handle  of  the  car  with  her  left  hand.  Held, 
that  it  was  error  for  the  court  to  grant  a 


STREET   RAILWAYS,  385-387. 


48b 


compulsoty  nonsuit.  Neslit  v.  Second  &* 
T.  St.  Pass,  Ji.  Co.,  27  Am.  &*  Eng.  H.  Cas 
180,  wiPa.  St.  300,  6  Atl.  Rep.  72.— Dis- 
tinguished IN  Fearn  v.  West  Jersey  Ferry 
Co.,  143  Pa.  St.  122. 

386.  Where  passenger  is  put  in 
sudden  peril. — Plaintiff  was  riding  on  a 
car  which  was  uncoupled  on  a  grade  and 
allowed  to  run  rapidly  backward  free  from 
control.  There  was  great  excitement  among 
the  passengers,  and  plaintiff  either  jumped 
off  or  was  pulled  ofT,  and  was  injured. 
Held,  that  the  excitement,  surprise,  or  be- 
wilderment could  only  be  taken  into  ac- 
count in  determining  the  quality  of  plain- 
tiff's acts,  and  their  quality  in  respect  to 
care  or  negligence  presented  a  question  for 
the  jury.  JoUet  St.  R.  Co,  v.  McCarthy,  42 
///.  App.  49. 

In  such  case  there  was  evidence  tending 
to  show  that  plaintiff  was  pulled  or  crowded 
off  the  car  without  her  consent.  Held,  that, 
if  the  jury  should  so  find,  then  the  fact  that 
plaintiff  was  surprised,  excited,  or  bewil- 
dered, and  that  the  company  caused  such 
condition,  would  not  affect  the  intervening 
agency  that  pulled  or  crowded  her  off.  /»- 
liet  St.  R.  Co.  V.  McCarthy,  42  ///.  App.  49. 

The  fact  that  one  contributes  to  a  per- 
sonal injury,  if  he  was  not  in  fault  in  so 
doing,  does  not  affect  his  right  to  recover 
therefor.  One  who,  through  the  negligence 
or  fault  of  another,  is  put  in  a  position  of 
immediate  danger,  is  not  bound  to  exercise 
all  the  prudence  and  care  that  ordinarily 
characterize  the  conduct  of  a  prudent  man. 
He  has  no  right,  however,  upon  the  hap- 
pening of  some  occurrence  such  as  would 
not  create  fear  or  apprehension  of  injury  in 
the  mind  of  an  ordinarily  prudent  and  care- 
ful person,  to  bring  injury  upon  himself,  and 
then  recover  damages  by  reason  of  it.  The 
question  is  properly  submitted  to  the  jury 
whether,  under  the  circumstances,  plaintiff 
acted  rashly  and  under  an  undue  appre- 
hension of  danger.  South  Covington  &*  C. 
St.  R.  Co.  v.  Ware,  27  Am.  &•  Ettg.  R.  Cas. 
206,  84  Ky.  267,  I  S.  W.  Rep.  493.— QUOT- 
ING Stokes  v.  Saltonstall,  13  Pet.  (U.  S.)  191. 

An  instruction  that  if  plaintiff  was  put 
in  a  position  of  peril  by  the  sudden  starting 
of  a  car,  and  jumped  off,  and  that  if  a  person 
of  ordinary  prudence  might  have  done  the 
same  thing  it  would  not  be  contributory 
negligence,  is  not  erroneous.  Piper  v. 
Minneapolis  St.  R.  Co.,  52  Minn.  269,  53  A'. 
IV .  Rep.  1060. 


380.  Entering  open  cara  from  side. 

— Where  a  company  uses  chains  upon  the 
sides  of  open  cars  s  >  as  to  prevent  passen- 
gers from  entering  th.^'  way,  the  fact  that 
the  chains  are  down  on  the  side  next  to  an- 
other track  is  an  invitation  to  passengers  to 
enter  the  car  on  that  side.  Gaffney  v. 
Brooklyn  City  R,  Co.,  6  Misi:.  i,  58  A^.  Y,  S. 
R.  ug,2sJV.  v.  Supp,  996. 

At  a  transfer  station  plaintiff  was  about 
to  get  upon  the  car  step,  the  chains  being 
down  on  both  sides,  when  a  car  came  down 
on  the  other  track  at  a  rapid  rate  and  struck 
her.  Held,  that  a  verdict  for  plaintiff  should 
be  affirmed.  Gaffney  v.  Brooklyn  City  R. 
Co.,  6  Misc.  i,i%N,  V,  S.  R.  tig.  25  N.  V, 
Supp.  996. 

387.  Entering  or  leavl  ig  ar 
heavily  encumbered.  —  It  is  contribu- 
tory negligence  for  a  passenger  upon  a 
street-car  to  attempt  to  alight  while  it  is  in 
motion,  and  while  he  is  carrying  a  ke^  of 
lead  weighing  about  fifty  pounds.  Ricketts 
v.  Birmingham  St.  R.  Co.,  37  Am.  6-  Etig. 
R.  Cas.  12,  85  Ala.  600,  5  So,  Rep,  353.— Re- 
viewed IN  Central  R.  &  B.  Co.  v.  Miles,  41 
Am.  &  Eng.  R.  Cas.  149,  88  Ala.  256,  6  So. 
Rep.  696. 

Carrying  a  plank  measuring  in  length 
about  six  feet,  on  the  shoulder,  on  a  prin- 
cipal thoroughfare,  is  not  wrongful,  but 
the  person  carrying  it  should  be  more  than 
ordinarily  careful.  If  an  accident  happens 
to  him  when  attempting  to  board  a  steam 
street-car  and  the  company  is  not  at  fault, 
damages  will  not  be  allowed.  Byrd  v.  New 
Orleans  City  <S>»Z,.  R.  Co.,  43  La.  Ann.  822,  9 
So.  Rep.  565. 

Where  it  is  shown  that  plaintiff  was  in- 
jured by  the  negligence  of  defendant  in 
starting  its  street-car  just  as  she  was  about 
to  alight  therefrom,  the  company  cannot 
exculpate  itself  by  showing  that  she  was  so 
encumbered  with  baggage  that  she  could 
not  avail  herself  fully  of  the  means  provided 
for  alighting,  or  that  she  waited  two  min- 
utes before  getting  up  from  her  seat,  the 
carhaving  gone  beyond  the  place  where  shfc 
was  to  get  off.  Cawfield  v.  Asherille  St. 
R,  Co.,  Ill  N.  Car,  $97,  16  5.  E.  Rep.  703. 

The  court  was  requested  to  charge  that 
"  it  is  contributory  negligence  to  step  off  a 
moving  car  while  encumbered  with  bundles 
weighing  fifty  pounds,"  but  instead  charged 
that  "it  would  have  been  contributory  neg- 
lif^icnce  for  plaintiff  to  have  stepped  off  the 
car  with  bundles  which  so  encumbered  him 


4  ' 


ill- 


I 


B;!  ' 


486 


STREET   RAILWAYS   388-301. 


that  he  could  not  control  his  movements  as 
wet!  as  he  could  without  the  bundles." 
//>/(/,  that  the  company  could  not  complain 
of  the  instruction,  as  it  was  more  favorable 
than  it  was  entitled  to.  Richmond  v.  Second 
Ave.  B.  Co..  27  N.  Y.  Supp.  780. 

Plaintiff  received  his  injuries  in  attempt- 
ing, with  one  of  his  arms  encumbered,  to 
board  defendant's  car  while  it  was  in  motion, 
his  foot  slipping  from  the  step  from  a  jolt 
of  the  car.  Held,  that  it  was  not  error  to 
enter  jud}<;ment  of  nonsuit.  Reddington  v. 
Philadelphia  Traction  Co.,  132  Pa.  St.  154, 
19  Atl.  Rep.  28. — Distinguished  in  Ober 
V,  Crescent  City  R.  Co.,  44  La.  Ann.  1059. 

388.  Failure  to  use  hold-straps.— 
An  instruction  authorizing  a  recovery, 
without  stating  the  whole  of  the  affirmative 
d»^fense  of  contributory  negligence,  will 
not  cause  a  reversal  where  such  defense  is 
properly  presented  by  other  instructions. 
Thus  where  a  passenger  is  charged  with  con- 
tributory negligence  in  not  properly  using 
the  hold-straps,  an  instruction  is  not  objec- 
tionable which  calls  attention  to  his  doty  in 
that  regard,  where  there  are  other  instruc- 
tions covering  the  whole  subject  of  his  con- 
duct, and  other  acts  charged  as  negligent. 
Dougherty  v  Missouri  R.  Co.,  34  Am.  &* 
Eng.  R.  Cas.  488  ;  see  also  37  Am.  &*  Eng. 
R.  Cas.  206,  97  Mo.  647, 1 5  West.  Rep.  235,  8 
S.  W.  Rep.  900,  II  5.  W.  Rep.  251. 

Where  a  female  passenger  sues  to  recover 
for  being  thrown  down  while  standing  in  a 
crowded  car.  it  is  proper  to  instruct  the 
jury  that  when  plaintiiT  entered  the  car  and 
consented  to  stand,  she  assumed  all  the 
risks  naturally  incident  to  that  mode  of 
travel ;  that  she  was  bound  to  use  all  guards 
and  appliances  furnished  for  the  protection 
of  passengers,  if  she  could  reasonably  do 
so;  that  if  with  ordinary  convenience  she 
could  reach  the  straps  and  hold  on  to  the 
same,  she  was  bound  to  do  so ;  but  if  she 
could  not,  then  she  was  bound  to  use  such 
care  and  caution  in  other  ways  to  protect 
herself  as  a  prudent  and  cautious  woman 
.would  exercise  under  like  circumstances. 

Whipple  V.   West  Phila.  Pass.  R.  Co.,  11 
Phila.  (Pa.)  345. 

389.  Steppiiif;  in  space  between 
car  and  platform. — Every  passenger  rid- 
ing on  a  street-car  is  bound  to  know  that 
some  space  must  exist  between  the  plat- 
form and  the  car,  and  it  is  the  duty  of  each 
one  to  take  proper  precautions  not  to  step 
therein.     Fox  v.  Mayor,  etc.,  of  N.  Y.,  70 


Hun  181,  53  A^.    Y.  S.  R.  90a.  34  N.   V. 

Supp.  43. 

Where  a  company  maintains  a  station 
with  a  space  of  fourteen  inches  between  it 
and  cars  on  the  track,  the  question  of  the 
contributory  negligence  of  a  passenger  who 
steps  in  the  space  at  night  when  it  is  poorly 
lighted,  without  being  warned,  and  without 
knowledge  of  the  situation,  is  for  the  jury. 
Poyce  V.  Manhattan  R.  Co.,  118  A^.  K  314, 
23  N.  E.  Rep.  304. 

As  some  space  between  cars  and  the  plat- 
form is  necessary,  a  passenger  cannot  re< 
cover  for  an  injury  received  in  carelessly 
stepping  In  the  space,  unless  it  is  wider  than 
necessary.  Ryan  v.  Manhattan  R.  Co.,  121 
N.  Y.  126,  23  A^.  E.  Rep.  1131. 

390.  Violating  rule  by  placing 
baskets,  etc.,  on  car.  —  If  an  accident 
occurs  in  consequence  of  violating  a  regula- 
tion of  the  company  which  prohibits  the 
conveyance  of  baskets  or  parcels  unaccom- 
panied [by  a  passenger,  the  person  partici- 
pating in  such  violation,  and  so  sustaining 
injury,  will  be  debarred  from  recovering 
therefor,  if  it  be  shown  that  he  had  knowl- 
edge of  such  regulation.  Baltimore  City 
Pass.  R.  Co.  V.  Wilkinson,  30  Md.  224. 

391.  Colliding  with  object  near 
track  soon  after  starting.— In  an  action 
by  a  passenger  to  recover  for  a  personal  in- 
jury received  by  being  propelled  against  a 
telegraph  pole  near  the  track  while  getting 
on  a  car  in  motion,  the  defendant  asked 
the  court  to  instruct  the  jury  that  under  the 
ordinance  of  the  city  the  company  had  no 
right  to  stop  its  cars  except  on  the  further 
crossing  of  street  intersections,  which  was 
refused.  Held,  not  error,  it  being  imma- 
terial whether  defendant  had  the  right  to 
stop  its  cars  at  the  further  crossing  or  not, 
there  being  no  claim  that  the  driver  refused 
to  stop  the  car  at  the  place  where  plaintiff 
got  on  it.  North  Chicago  St.  R.  Co.  v. 
Williams,  52  Am.  &*  Eng.  R.  Cas.  522,  140 
///.  275,  29  N.  E.  Rep.  672 ;  affirming  40  ///. 
App.  590. 

It  ap{>eared  that  plaintif!  was  a  man 
twenty-six  years  old,  able-bodied,  and  unin- 
cumbered ;  he  waited  for  one  of  defendant's 
open  cars  upon  a  crosswalk  and  motioned 
for  it  to  stop ;  when  it  had  nearly  stopped 
he  put  his  foot  on  the  step  on  the  side  and 
near  the  middle  of  the  car  and  took  hold  of 
the  stanchion,  and  after  the  car  had  moved 
six  or  seven  feet,  he  was  struck  by  the  wheel 
of  a  truck  which  was  standing  in  the  street. 


'i  % 


STREET   RAILWAYS,  392,303. 


417 


r.  Y. 

ation 
en  it 
f  the 

who 
oorly 
Lhout 
jury. 

3«4. 


Htld,  that  a  refusal  to  nonsuit  was  crinr; 
that  it  was  plaintiff's  duty  to  see,  before 
getting  on  the  cur,  tiiat  liicrc  was  nu  obsta- 
cle outside  the  car  which  would  makt  't  dan- 
gerous for  him  to  attempt  to  get  on  bcnrd  ; 
and  that  if  the  injury  was  attributable  to 
any  negligence,  it  was,  in  part  at  least  tiiat 
of  plaintiff.  Moylan  v.  Second  Avr.,  R.  Co., 
128  A'.  Y.  583,  mem.,  3  Silv.  App,  461,  27  A'. 
E.  Hep.  977,  37  A^.  Y.  S.  R.  871  ;  affirming 
59  Hun  619,  mem,,  35  A''.  Y.  S.  R.  644, 13  A'; 

y.  Supp.  494. 

302.  Getting  on  from  wrong  side 
or  between  tracks.— A  company  is  not 
liable  for  an  injury  that  results  from  a  pas- 
senger attempting  to  enter  a  car  from  be- 
tween parallel  tracks,  without  observing  the 
approach  of  a  car  on  the  adjoining  track. 
Schreiner  v.  St.  Louis  R.  Co.,  5  Mo.  App,  596. 

Plaintiff  crossed  one  track  and  stopped 
between  the  two  tracks,  where  there  was 
a  space  of  but  thirty  inches  when  a  car  was 
on  each  track.  He  saw  a  car  approaching 
on  each  track  in  opposite  directions,  and 
while  attempting  to  get  on  one  was  struck 
by  the  horses  of  the  other.  He  had  time 
to  pass  to  the  outside,  where  there  would 
have  been  no  danger.  Held,  that  he  was 
guilty  of  contributory  negligence,  as  a  mat- 
ter of  law.  Halpin  v  Third  Ave.  R.  Co.,  8 
/.  6-  S.  (N.  Y.)  175. 

A  person  attempting  to  enter  a  car  from 
between  tracks  is  not  negligent,  as  a  matter 
of  law,  where  the  injury  results  from  his 
being  dragged  along,  by  a  sudden  start  of 
the  car  when  he  is  in  the  act  of  getting  on, 
until  he  is  struck  by  a  car  on  the  adjoining 
track.  Tlie  question  of  his  negligence  is 
for  the  jury.  Dale  v.  Brooklyn  City,  H.  P. 
6-  P.  P.  R.  Co.,  I  Hun  (N.  Y.)  146,  3  T.  &* 
C.  686 ;  affirmed  in  60  N.  Y.  638,  mem. — 
Distinguishing  Phillips  v.  Rensselaer  & 
S.  R.  Co.,  49  N,  Y.  177. 

Plaintiff,  in  attempting  to  board  a  street- 
car, crossed  over  and  placed  himself  between 
the  tracks,  instead  of  remaining  on  the  outer 
side.  He  saw  a  car  coming  on  the  other 
track,  fifty  or  seventy-five  feet  away,  as  he 
was  getting  on ;  but  paid  no  more  attention  to 
it  until  struck  by  it.  Held,  that  he  was  guilty 
of  contributory  negligence.  Davenport  v. 
Brooklyn  City  R.  Co.,  100  A'.  Y.  632, ;«««., 
3  A'.  E.  Rep.  305.— Reviewed  in  Scott  v. 
Th  d  Ave.  R.  Co.,  41  N.  Y.  S.  R.  152,  61 
Hun  627,  mem.,  16  N.  Y.  Supp.  350. 

In  an  action  for  damages,  for  injuries  re- 
ceived while  boarding  a  street-car,  the  court 


charged  that  the  plaintiflf  "started  to  get 
on  the  one  car  when  the  other  car  was  com- 
ing (and  one  of  the  witnesses  says  that  he 
had  to  turn  out  of  his  course  a  little  be- 
cause the  horses  hesitated  a  moment  or 
stood  still) ;  and  that,  choosing  between 
the  risks,  when  the  cars  were  so  near  to- 
gether, he  was  caught  between  the  two  cars 
and  was  hurt.  Now  if  that  was  the  way  it 
happened,  as  I  should  suppose  you  would 
infer  from  the  testimony  of  these  witnesses 
—if  the  plaintiff  did  take  that  risk — taking 
the  risk,  he  must  sutler  the  consequences. 
*  *  *  A  man  cannot  take  ^uch  risks  with 
passenger-railway  cars,  and  then  if  he  gets 
hurt  ask  the  company  to  pay  him  damages." 
Held,  not  rroneous.  Roit  v.  West  Pnila. 
R.  Co.,  (Pa.)  12  Atl.  Rep.  78. 

303.  In  getting  on  or  off  moving 
car,  generally. '"  —  Where  one  hails  a 
street-car,  the  conductor  and  driver  have  a 
right  to  assume  that  he  desires  the  car 
stopped  to  enable  him  to  get  on,  and  that 
he  does  not  intend  to  get  on  while  it  is  in 
motion.  Holohan  v.  JVashington  &*  G.  R. 
Co.,  8  Mackey  {D.  C.)  316. 

Even  if  tl.ey  believe  that  he  intends  get- 
ting on  the  car  while  it  is  in  motion,  and 
they  doubt  his  ability  to  do  so,  they  owe 
him  no  such  duty  as  to  warn  him  off;  he  is 
the  best  judge  of  the  risk  of  such  an  nr*, 
and  the  responsibility  for  it  rests  solely 
upon  him.  Holohan  v.  Washington  &•  G. 
R.  Co.,  8  Mackey  (D.  C.)  316. 

Although  a  person  may  get  upon  a  horse- 
car  while  it  is  in  motion,  in  violation  of  a  rule 
of  the  company,  yet  if  it  is  made  to  appear 
from  the  evidence  that  such  rule  has  been 
waived  or  revoked  in  his  favor,  he  will 
nevertheless  be  entitled  to  his  action  for  in- 
juries suffered  from  any  want  of  care  on  the 
part  of  the  company.  If  the  conductor  sees 
that  the  passenger  gets  aboard  while  the 
car  is  in  motion,  and  makes  no  objection  or 
warning,  a  fair  question  is  presented  for  the 
jury  to  find,  from  all  the  circumstances, 
whether  the  rule  has  not  been  waived. 
North  Chicago  St.  R.  Co.  v.  Williams,  52 
Am.  &•  Eng.  R.  Cas.  522,  140  ///.  275,  29  A''. 
E.  Rep.  672 ;  affirming  40  ///.  App.  590. 

Where  a  person  attempts  to  board  a  car 
in  a  manner  so  obviously  reckless  and  care- 
less as  to  amount  in  itself  to  contributory 
negligence,  he  is  not  to  be  regarded  as  a 

*  Passengers  getting  on  and  off  cars  in  motion, 
see  notes,  3  Am.  &  Eng.  R.  Cas.  431 ;  30  /</.  633. 


488 


STREET   RAILWAYS,  304.  aOfl. 


passenger  and  entitled  to  protection  as 
■uch  simply  because  when  discovered  by 
defendant's  conductor  he  is  clinging  to  the 
car  in  an  endeavor  to  enter  it,  the  duty  of 
the  conductor  towa.  d  him  not  being  that  of 
the  utmost  diligence  but  only  such  reason- 
able care  and  caution  as  are  due  to  a  person 
not  a  passenger.  Baltimore  Traction  Co.  v. 
State,  58  Attt.  &*  Eng.  R.  Cas.  200,  78  MJ. 
409,  38  Atl.  Rtp.  397. 

Where  the  testimony  tends  to  show  that 
plaintifl,  in  leaving  a  car,  had  reached  a 
point  where  it  would  be  difTicult  to  turn 
back  before  the  bell  was  rung  as  a  signal  for 
starting  (she  being  about  to  put  her  foot 
upon  the  step,  which  was  a  board  running 
along  the  side  of  the  car),  and  that  the  car 
started  at  that  very  instant,  plaintifT  cannot 
be  held  guilty  of  negligence  in  continuing 
her  descent  fronj  the  car.  Lacas  v.  Ditroit 
City  R.  Co.,  92  Mich.  412,  52  A'.  W.  Rcfi.  745. 

A  person  desiring  to  get  upon  a  train 
drawn  by  a  locomotive  may,  without  the 
imputation  of  negligence,  run  by  the  side  of 
it  when  in  motion,  if  he  keep  far  enough 
from  it,  so  as  not  to  expose  himself  to  in- 
jury.  Much  more  safely  may  he  do  this  by 
the  side  of  a  street-car  drawn  by  horses. 
Mcnurey  v.  Central  City  R.  Co. ,  66  Barb.  (N. 
Y-)  43  ;  affirmed  in  51  M  Y.  666,  mem. 

A  passenger  who  attempts  to  get  on  a 
street-car,  especially  if  it  is  in  motion  and 
the  conductor  is  inside,  must  be  held  to  a 
reasonable  degree  of  care.  Picard  v.  Ridge 
Ave.  Pass.  R.  Co.,  147  Pa.  St.  195,  23  Atl. 
Rep.  566. 

304.  GcttiiiGT  on  slowly  moving 
car.— PlaintifT  was  a  man  accustomed  to 
getting  on  and  oflf  street-cars  in  motion. 
His  evidence  tended  to  show  that  he  sig- 
naled the  driver  of  an  approaching  car  pro- 
pelled by  electricity  to  stop ;  that  the  driver 
saw  him  and  made  a  motion  with  the  motor 
crank,  and  as  the  speed  was  slackening  he 
put  his  right  hand  on  the  platform  railing 
2o  get  on,  but  the  car,  which  had  not  come 
"to  a  dead  stop,"  shot  forward,  and  he  fell 
to  the  ground  and  received  the  injuries 
complained  of.  Held,  that  there  was  evi- 
dence for  the  jury  whether  plaintiff  was  in 
the  exercise  of  due  care.  Corlin  v.  West 
End  St.  R.  Co.,  154  Afass.  197,  27  N.  E. 
Rep.  1000.— Reviewed  in  Beal  v.  Lowell 
&  D.  St,  R.  Co.,  157  Mass.  444. 

On  a  similar  state  of  facts  a  motion  for  a 
nonsuit  was  properly  denied.  Eppendorf  v. 
Brooklyn  City  5-  A'.  R,  Co..  69  A^.  Y.  195.  18 


Am.  Ry.  Rep.  97 ;  affirming  51  How.  Pr,  475. 
—  Reviewed  in  Morison  v.  Broadway  4  S. 
A.  R.  Co.,  a8  N.  Y.  S.  R.  498.  8  N.  Y.  Supp. 
436 ;  Saflfer  v.  Dry  Dock,  E.  B.  A  B.  R.  Co., 
53  Hun  629,  mem.,  34  N.  Y.  S.  R.  310. 

Defendant  offered  to  show  that  plaintifT 
was  in  the  habit  of  jumping  on  its  cars 
when  in  motion.  Held,  that  the  evidence 
was  properly  excluded.  Eppendorf  s.  Brook- 
lyn City  <S-  A'.  R.  Co.,  69  A'.  Y.  195,  18  Am. 
Ry.  Rep.  97  j  affirming  51  How.  Pr.  475. 

It  is  not  always  contributory  negligence 
for  a  party  to  attempt  to  get  on  the  rear 
platform  of  a  car  after  he  has  signaled  the 
driver  to  stop  the  car  and  it  has  slowed  up, 
where  it  appears  that  the  accident  was 
caused  by  the  sudden  starting  of  the  car 
after  he  had  attempted  to  board  it.  Seilt 
V.  Dry  Dock,  E.  B.  &*  B.  R.  Co.,  16  Daly 
264,  10  A^.  Y.  Supp.  I,  32  A'.  Y.  S.  R.  56.— 
Following  Morison  v.  Broadway  &  S.  A. 
R.  Co.,  8  N.  y.  Supp.  436. 

Where  a  man  of  seventy  years,  without 
anything  in  his  hands,  attempts  to  get  on  a 
car  that  has  slowed  up  but  that  starts  again 
with  a  sudden  jerk,  and  his  feet  are  thereby 
thrown  from  the  step,  and  he  is  dragged 
along  for  a  distance  and  injured,  the  ques- 
tions of  negligence  and  of  contributory 
negligence  are  properly  submitted  to  the 
jury.  The  fact  that  the  car  was  moving 
slowly  when  plaintifT  attempted  to  get  on 
did  not  establish  contributory  negligence 
as  matter  of  law.  Morrison  v.  Broadway 
<&-  S.  A.  R.  Co.,  130  N.  V.  166,  29  A'.  E.  Rep. 
105,  41  A^.  Y.  S.  R.  248;  affirming  55  Hun 
608.  mem.,  28  N.  Y.  S.  R.  498.— Distin- 
guishing Hayes  v.  Forty-second  St.  &  G. 
S.  F.  R.  Co.,  97  N.  Y.  259.— Followed  in 
PfefTer  v.  BufTalo  R.  Co.,  4  Misc.  (N.Y.)  465. 

305.  Gettiiii;  on  car  inoving  at 
rapid  rate,  or  four  miles  an  liour.— 
Trying  to  board  a  street-car  while  it  is  in 
rapid  motion  is  negligence.  CAicago  City 
R.  Co.  V.  Delcourt,  33  ///.  App.  430. 

The  court  cannot  say  as  matter  of  law 
that  an  attempt  to  enter  a  horse-car  which 
is  moving  at  about  the  rate  of  four  miles 
an  hour  is  negligence,  even  if  no  signal  is 
known  to  have  been  given  to  the  driver. 
Briggs  V.  Union  St.  R.  Co.,  37  Am.  &*  Eng. 
R.  Cas.  204,  148  Mass.  72,  19  JV.  E.  Rep.  19. 

Where  the  plaintifT  testified  that  he  was 
sixty-eit'^ht  years  old  and  weighed  over  190 
pr.i',ds,  that  he  signaled  to  the  driver  and 
tiij  car  slowed  up,  that  while  it  was  going 
about  (our  miles  an  hour  he  attempted  to 


STREET   RAILWAYS,  300-308. 


480 


enter  it  at  the  rear  platform,  when  his  font 
■lipped,  tiiat  the  car  had  started  oiT  and  was 
going  at  increased  speed,  and  that  he  made 
two  other  attempts  to  get  on,  and  failing, 
was  thrown  down  and  injured,  it  is  for  the 
jury  to  say  whether  the  plaintiff  was  guilty 
of  contributory  negligence.  Uriggsv,  Union 
St.  K.  Co.,  37  Am.  <S-  Eng.  R.  Cat.  ao4, 
148  Masi.  72,  19  A^.  E.  Rtp.  19. 

It  is  not,  as  a  matter  of  law,  negligence 
for  a  passenger  to  attempt  to  enter  a  street- 
car while  tiie  same  is  moving,  irrespective 
of  the  rate  of  speed  or  other  qualifying  cir- 
cumstances. It  is  presumptively  negligent 
to  do  so  if  the  car  is  moving  at  its  ordinary 
rate  of  speed,  or  with  accelerated  speed,  and 
especially  if  the  attempt  is  made  between 
cars,  or  at  the  front  instead  of  the  rear  of  a 
car.  It  is  ordinarily  a  question  for  the  jury 
depending  upon  the  circumstances  of  each 
case.  Sahlgaard  v.  St.  Paul  City  N.  Co., 
48  Minn.  232,  51  M  W.  Rep.  in. 

300.  Negligence  per  se.  —  A  person 
who  attempts  to  get  upon  a  horse-car  while 
it  is  in  motion  after  being  directed  to  wait 
until  the  car  stops,  and  who  persists  in  at- 
tempting to  get  on  and  is  injured  by  run- 
ning against  the  arm  of  a  passenger  on  the 
car  step,  cannot  maintain  an  action  against 
the  company  owning  liie  car.  Gallagher  v. 
IVest  End  St.  R.  Co.,  52  Am.  &•  Eng.  R. 
Cas.  520,  1 56  Mass.  1 57,  30  A'.  E.  Refi.  480. 

The  court  will  take  notice  that  an  at- 
tempt to  board  a  moving  street-car,  espe- 
cially by  its  front  platforms,  is  dangerous 
under  any  circumstances,  and  if  an  intend- 
ing passenger  in  attempting  to  get  upon  a 
moving  car  is  injured  simply  by  his  slipping 
down,  he  cannot  recover  for  the  injury. 
Woo  Dan  v,  Seattle  Elec.  R.  6-  P.  Co., 
58  Am.  <&*  Eng.  R.  Cas.  195,  $  IVasA.  466, 
32  Pac.  Rep.  103. 

It  is  the  duty  of  a  person  seeking  to  take 
passage  on  a  street-car  to  signal  the  person 
in  charge,  and  if  without  signaling  he  at- 
tempts to  board  a  moving  car  he  cannot 
recover  for  the  injury  thereby  sustained. 
Woo  Dan  v.  Seattle  Elec.  R.  &•  P.  Co.,  58 
Am.  <S^  Eng.  R.  Cas.  195,  5  Wash.  466,  32 
Pac.  Rep.  103. 

397.  Getting  on  moving  car  not 
negligence  per  se  or  In  law.— Whether 
a  person  in  getting  upon  a  horse-car  while 
it  is  in  motion  is  chargeable  with  want  of 
ordinary  care  is  a  question  for  the  jury  un- 
der all  the  circumstances  of  the  case.  It  is 
not  negligence  per  se  for  a  person  to  get  on 


or  off  a  street-car  drawn  by  norses  while  it 
is  in  motion,  and  it  is  not  error  to  refuse  an 
instruction  that  such  act  is  such  conclusive 
evidence  of  contributory  negligence  as  to 
bar  a  recovery  by  him.  North  Chicago  St. 
R.  Co.  V.  Williams,  52  Am.  5-  Eng.  R.  Cas. 
522, 140  ///.  275.  29  A'.  E.  Rep.  672  ;  affirming 
40  ///.  App.  S90.— Quoting  Schacherl  v. 
St.  Paul  City  R.  Co.,  42  Minn.  42  ;  McDon- 
ough  V.  Metropolitan  R.  Co.,  137  Mass. 
210;  Briggs  V.  Union  St.  R.  Co.,  148  Mass. 
72  ;  Eppendorf  v.  Brooklyn  City  &  N.  R. 
Co.,  69  N.  Y.  195 ;  Chicago  City  R.  Co.  v. 
Mumford,  97  III   560. 

It  is  not  negligence  as  a  matter  of  law 
for  a  person  to  get  on  or  off  a  horse-car 
while  it  is  in  motion,  but  the  question  of 
negligence  depends  upon  the  circumstances 
of  each  particular  case,  such  as  the  speed 
of  the  car,  the  activity  or  infirmity  of  the 
person,  and  the  like.  Ober  v.  Crescent 
City  R.  Co.,  £2  Am.  S-  Eng.  R.  Cas.  $76,  44 
La.  Ann.  1059,  11  So.  Rep.  818.— Approv- 
ing Schacherl  v.  St.  Paul  City  R.  Co.,  42 
Minn.  42,43  N.  W.  Rep.  837;  McDonough 
V.  Metropolitan  R.  Co.,  137  Mass.  210. 

It  is  not,  under  all  circumstances,  negli- 
gence as  matter  of  law  for  a  person  to 
get  upon  a  street-car  that  is  in  motion.  In 
exceptional  cases,  where  the  conditions  are 
unfavorable,  it  may  be  so,  but  ordinarily  it 
is  a  question  of  fact  for  the  jury.  Eppen- 
dorf V.  Brooklyn  City  &'  N.  R.  Co.,  69  A^.  V. 
195,  18  Am.  Ry.  Rep.  97 ;  affirming  51  How. 
Pr.  475.— Quoted  in  North  Chicago  St.  R. 
Co.  V.  Williams,  140  III.  275 ;  Gilbert  v. 
Third  Ave.  R.  Co.,  22  j.  &  S.  (N.  Y.)  270. 
—  Valentine  v,  Broadway  &*  S.  A.  R.  Co.,  14 
Daly  540.  4  N.  V.  Supp.  481,  16  N.  Y.  S.  R. 
602.  Gilbert  v.  Third  Ave.  R.  Co.,  22  /.  &- 
S.  270,  8  A^.  K.  S.  R.  152.— Quoting  Ep- 
pendorf V.  Brooklyn  City  &  N.  R.  Co.,  69 
N.  Y.  195. 

308. a  qiicHtion  for  tlie  Jury.— 

Whether  the  conduct  of  a  passenger  in  seiz- 
ing the  rail  of  the  rear  dasher  and  trying 
to  pull  himself  up  to  the  car  after  he  had 
lost  his  hold  upon  the  rail  attached  to  the 
body  of  the  car  was  such  conduct  as  to  pre- 
clude the  recovery  of  damages  is  a  question 
for  the  jury.  Briggs  v.  Union  St.  R.  Co.,  37 
Am.  &*  Eng.  R,  Cas.  204, 148  Mass.  72,  19  A'. 
E.  Rep.  19. 

The  question  whether  a  person  attempt- 
ing to  get  on  a  street-car  while  it  was  in 
motion  is  negligent  is  for  the  jury,  where 
there  is  evidence  that  he  signaled  the  car  to 


I 


m 


■' ) 


til-    ■  'i 

Ii 

4 

I      i 

490 


STREET   RAILWAYS,  399-402. 


slow  up,  which  it  did,  but  suddenly  started 
again  as  he  was  getting  on,  before  he  had 
time  to  secure  a  footing.  Morison  v.  Broad- 
way &*  S.  A.  R.  Co.,  28  N.  V.  S.  A'.  498.  8  A^. 
y,  Supp.  436,  55  Hun  608 ;  affirmed  in  130 
N.  V.  166,  41  N.  y.  S.  R.  248, 29  A^.  E. 
Rep.  105.— Reviewing  Eppendorf  v.  Brook- 
lyn City  &  N.  R.  Co.,  69  N.  Y.  195. 

Whether  a  passenger,  in  getting  off  while 
a  car  is  in  motion,  is  guilty  of  negligence,  is 
ordinarily  a  question  for  the  jury.  Munroe 
V.  Third  Ave.  R.  Co.,  iSJ.&'S.  {JV.  K)  114. 

399.  Getting  off  moving  cars,  gen- 
erally.*—  A  passenger  who  voluntarily 
jumps  on  or  oiT  a  moving  street-car  does 
so  at  his  peril,  and  that  construction  of  the 
car  cannot  be  said  to  be  defective  which  is 
only  unsafe  in  view  of  such  conduct.  IVet 
bmihky  v.  Ft.  Wayne  (S-  E.  R.  Co.,  86 
Mic/t.  236,  48  A'.  IV.  Rep.  1097. 

The  failure  of  a  driver  to  stop  a  car  will 
not  justify  a  passenger  in  leaving  it  while  it 
is  in  rapid  motion.  Ginnon  v.  New  york  &* 
H.  R.  Co.,  3  Robt.  (N.  y.)  25. 

The  fact  that  multitudes  daily  step  in 
safety  from  cars  while  they  are  in  motion 
does  not  necessarily  relieve  such  act  from 
the  charge  of  negligence,  even  wlien  done 
with  care.  If  there  be  no  danger  in  such 
act  unless  carelessly  done,  and  the  constant 
practice  of  mankind  is  proof  thereof,  the 
servant  of  the  company  will  still  be  justified 
in  recommending  a  passrnger  not  to  de- 
scend while  the  car  is  in  motion,  although 
the  latter  asks  him  to  stop.  Ginnon  v.  New 
york  6-  //.  R.  Co.,  3  Robt.  (N.  K.)  25. 

Considering  the  fact  that  a  passenger  on 
a  street-car  caw  always  alight  within  a  short 
distance,  it  is  contributory  negligence  on 
his  part  to  jump  from  the  moving  car  be- 
cause the  conductor  has  not  immediately 
complied  with  his  request  to  stop  the  car 
ar/i  let  him  off.  Hagan  v.  Philadelphia  &* 
G.  F.  R.  Co.,  15  Phila.  (Pa.)  278.— Distin- 
guishing Crissey  v.  Hestonville  M.  &  F. 
Pass.  R.  Co.,  75  Pa.  St.  83.  Reviewing 
Pennsylvania    R.    Co.    v.   Aspell,    23    Pa. 

St.  147. 
400. vplieu  in  rapid  motion.— It 

is  gross  negligence  in  a  passenger  to  jump 
from  a  car  when  it  is  going  at  a  speed  of 
twenty  miles  an  hour,  whether  he  knows  or 
does  not  know  that  the  car  is  going  so  fast. 


*  Jumping  from  and  boarding  moving  street- 
cars, tit  note,  30  Am.  &  Enq.  R.  Cas.  632  ; 
44  Id.  423,  abttr. 


That  a  city  ordinance  restricts  the  speed 
of  the  car  to  seven  miles  an  hour  makes  no 
difference.  Master  son  v.  Macon  City  &•  S. 
St.  R.  Co.,  88  Ga.  436,  145.  E.  Rep.  591. 

There  was  a  conflict  of  evidence  as  to 
whether  plaintiff  was  thrown  from  car  steps 
'when  preparing  to  alight,  by  a  sudden  in- 
crease of  the  speed,  or  whether  he  stepped 
off  while  the  car  was  still  moving.  Held, 
that  he  was  guilty  of  contributory  negli- 
gence if  he  stepped  off  while  the  car  was  in 
rapid  motion,  and  he  was  not  entitled  to  re- 
cover if  any  act  of  his  in  getting  off  con- 
tributed to  the  injury.  Saffer  v.  Dry  Dock, 
E.  B.  <S-  B.  R.  Co.,  24  A^.  y.  S.  R.  210.  53  Hun 
629,  2  Silv.  Sup.  Ct.  343,  5  N.  y.  Supp.  700. 

401. when  horses  are  running 

awaj'. — Where  the  horses  of  a  street-car 
are  running  away,  and  the  car  is  liable  to 
leave  the  track  and  be  thrown  over  an  em- 
bankment, and  it  may  be  that  by  keeping 
her  seat  the  life  of  a  passenger  may  be  saved, 
or  it  may  be  that  she  may  save  her  life  by 
jumping,  she  is  not  necessarily  chargeable 
with  contributory  negligence  if  3he  jumps. 
Dimmey  v.  Wheeling  &*  E.  G.  R.  Co.,  27  W, 
Va.  32, 

Just  as  a  railroad  man  would  be  held  to 
greater  care  in  the  management  of  a  car 
than  would  a  farmer,  so  a  passenger  is  only 
expected  to  exercise  the  care,  to  avoid  in- 
jury, of  careful,  prudent  persons  of  his  class. 
So  where  a  female  passenger  is  injured  in 
jumping  from  a  car  when  the  horses  are 
running  away,  it  is  proper  to  instruct  the 
jury  that  she  was  only  required  to  do  what 
"  ordinarily  prudent  and  careful  persons  of 
the  same  class  would  have  done  under  simi- 
lar circumstances."  Dimmey  v.  Wheeling 
&*  E.  G.  R.  Co.,  27  W.  Va.  32. 

402. when  negligence  per  se, 

or  in  law.* — Where  a  train  did  not  stop 
at  a  suitable  place  for  a  passenger  to  get  off, 
and  upon  its  starting  again  he  rang  the  bell, 
to  which  the  driver  responded  and  the  cars 
slowed  up,  this  act  of  his  and  his  attempt  to 
leave  the  car  while  it  was  still  in  motion 
were  gross  negligence.  Blodgett  v.  Bartlett, 
50  Ga.  353.— Quoted  in  Chicago  &  N.  W. 
R.  Co.  V.  Rielly,  40  III.  App.  416. 

It  is  not  negligence /iir  st  for  a  person  to 
get  on  or  off  a  street-car  whije  it  is  in  mo- 
tion, but  the  question  is  ordinarily  one  of 


*  Alighting  from  or  boarding  moving  street- 
car not  per  se  a  negligent  act,  see  note,  ai  Am.  ft 
Eng.  R.  Cas.  357. 


STREET   RAILWAYS,  403-406. 


491 


fact  for  the  jury.  Schacherl  v.  5"/.  Paul 
City  R.  Co.,  4»  Am.  &*  Eng.  R.  Cas.  233,  42 
Minn.  ^2,  43  iV.  W.  Rep.  837.— Approved 
IN  OberT/.  Crescent  City  R.  Co.,  44  La.  Ann. 
1059.  Quoted  in  North  Chicago  St.  R. 
Co.  V.  Williams,  140  111.  275. — Duncan  v. 
Wyatt  Park  R.  Co.,  48  Mo.  App.  659.— 
Following  Taylor  v.  Missouri  Pac.  R. 
Co.,  26  Mo.  App.  336;  Wyatt  v.  Citizens' 
R.  Co.,  55  Mo.  485  ;  Doss  v.  Missouri,  K.  & 
T.  R.  Co.,  59  Mo.  37  ;  Richmond  v.  Quincy, 
O.  &  K.  C.  R.  Co.,  49  Mo.  App.  104. 
Reconciling  Clotworthy  v.  Hannibal  & 
St.  J.  R.  Co.,  80  Mo.  223;  Nelson  v.  At- 
lantic &  P.  R.  Co.,  68  Mo.  593. 

Where  plaintiff's  evidence  shows  that 
Tirhen  alighting  from  a  street-car  while  it  was 
in  motion  lie  stepped  off  from  the  front  plat- 
form witli  his  back  to  the  horses,  and  was 
dragged  down  wliile  holding  on  to  the  dash- 
board, the  court  is  authorized  to  declare  it 
contributory  negligence  per  se,  and  to  order 
a  compulsory  nonsuit.  Beattie  v.  Citizen's 
Pass.  R.  Co.,  (Pa.)  i  Ail.  Rep.  574. 

The  court  cannot  rule  that  when  a  street- 
car has  stopped  or  is  about  to  stop  at  the 
signal  of  an  alighting  passenger,  another 
passenger  who  wishes  fi  alight  at  the  same 
time  is  guilty  of  negligence  as  a  matter  of 
i.?w  in  not  giving  notice  of  his  wish.  When 
such  other  passengr  'n  alighting  while  the 
car  was  stopped  or  about  stopping,  is  in- 
jured by  a  fall  caused  by  the  acceleration  of 
the  car's  mo/ement,  the  question  of  contrib- 
utory negligence  is  rightly  left  to  the  jury. 
Rathbonev.  Union  R.  Co.,  13  Am,  &^  Eng. 
R.  Cas.  58,  13  R.  I.  709.— Distinguishing 
Nichr  Is  v.  Middlesex  R.  Co.,  106  M<iss.  463  ; 
Cram  v.  Metropolitan  R.  Co.,  ii2  Mass.  38. 

403.  when  for  jury. —  Whether 

the  act  of  stepping  from  a  street-car  when 
it  is  moving  slowly  is  contributory  negli- 
gence is  a  question  for  the  jury  under  all 
the  circumstances  of  the  case.  Fortune  v. 
Missouri  R.  Co.,  10  Mo.  App.  252.— Distin- 
guished IN  Dunn  V.  Cass  Ave.  &  F.  G.  R. 
Co.,  21  Mo.  App.  188. 

Whether  alighting  from  a  moving  street- 
car constitutes  negligence  or  not  is  a  fact  to 
be  determined  by  the  jury,  taking  into  con- 
sideration all  the  circumstances  in  evidence 
in  the  case.  Omaha  St.  R.  Co.  v.  Craij^,  58 
Am.  &»  Eng.  R.  Cas.  208,  39  Ned.  601,  58  N. 
W.  Rep.  209.— Not  following  Hagan  v. 
Philadelphia  &  G.  F.  R.  Co.,  15  Phila.  (Pa.) 
278,  Harmon  v.  Washington  &  G.  R.  Co., 
30  Am.  &  Eng.  R.  Cas.  627,  6  Mackey  (D. 


C.)  64;  Stager  v.  Ridge  Ave.  Pass.  R.  Co., 
33  Am.  &  Eng.  R.  Cas.  540,  119  Pa.  St.  70; 
Reddington  v.  Philadelphia  Traction  Co., 
132  Pa.  St.  154. 

404.  Stepping  offon  adjacent  track. 
—  While  it  may  noi  be,  as  matter  of  law, 
negligent  for  one  to  leave  a  street-car  while 
it  is  in  motion,  or  to  attempt  to  cross  a  street- 
car track  without  looking  to  see  whether  a 
car  is  approaching,  yet  neither  of  these  acts 
is  evidence  of  due  care ;  and  where  the  un- 
disputed testimony  shows  that,  in  spite  of 
warnings  from  those  in  his  immediate  vi- 
cinity, a  passenger  on  a  street-railway  car 
suddenly,  without  precaution,  alighted 
therefrom,  and  was  struck  by  another  car 
and  killed,  his  administratrix  cannot  main- 
tain an  action  against  the  company  under 
Mass.  St.  of  1886,  ch.  140.  Creamery.  West 
End  St.  R.  Co.,  52  Am.&'Eng.  R.  Cas.  558, 
156  Mass.  320,  31  JV.  E.  Rep.  391,  16  L. 
R.  A.  490.— Quoting  Chaffee  v.  Boston  & 
L.  R.  Corp.,  104  Mass.  108. 

Where  the  evidence  shows  that  plaintiff 
jumped  from  a  car  directly  in  front  of  one 
going  in  the  opposite  direction,  which  ran 
over  him,  and  that  the  driver  could  not  see 
him  until  he  was  struck  by  the  horses,  it  is 
proper  to  refuse  an  instruction  that  he 
might  recover,  notwithstanding  he  was  neg- 
ligent in  getting  in  front  of  the  car,  if  the 
driver  could  have  seen  him  in  time  to  have 
stopped  before  he  was  injured.  Dunn  v. 
Cass  Ave.  &*  F.  G.  R.  Co.,  98  Mo.  652,  1 1  S. 
IV.  Rep.  1009. 

405.  Illustrations  of  contributory 
negligence  in  getting  on  or  off'.— 
In  an  action  by  a  female  passenger  for  per- 
sonal injuries,  the  plaintiff  is  not  entitled 
to  recover  where  the  injuries  were  received 
in  consequence  of  her  attempting  to  get  off 
a  car  while  it  was  in  motion,  in  violation  of 
the  rules  of  the  company,  and  without  any 
of  its  employes  having  done  or  said  any- 
thing to  cause  her  to  take  the  step.  Ca/der- 
wood  V.  North  Birmingham  St.  R.  Co.,  96 
Ala.  i\Z,\\  So.  Rep.  66. 

If  a  car  has  started  before  the  plaintiff 
has  commenced  to  descend,  or  is  on  the 
point  of  descending,  she  is  negligent  in 
attempting  to  alight  without  notifying  the 
conductor  and  waiting  until  the  car  stops. 
Wheaton  v.  North  Beach  6-  M.  R.  Co.,  36 
Cal.  590. 

Where  there  is  evidence  tending  to  show 
that  plaintiff  rang  the  bell  herself,  and  at- 
tempted to  get  off  before  the  car  stopped,  it 


408 


STREET   RAILWAYS,  406. 


VM 


is  error  to  refuse  to  instruct  the  jury  that 
"  it  was  the  duty  of  plaintiff  to  have  notified 
some  one  in  charge  of  the  car,  if  she  desired 
to  get  off,  and  if  she  got  off  without  such 
notice,  or  without  the  knowledge  of  those 
in  charge  of  the  car,  she  did  so  at  her  peril," 
and  could  not  recover.  Nichols  v.  Middle- 
sex R.  Co.,  106  Mass.  463,  8  Am.  Ry.  Rep, 
47.— Distinguished  in  Rathboncr'.  Union 
R.  Co.,  13  Am.  &  Eng.  R.  Cas.  58,  13  R.  I. 
709.  Explained  in  Murphy  v.  Union  R. 
Co.,  118  Mass.  238. 

Plaintiff,  a  female  passenger,  alleged  that 
she  was  injured  by  the  sudden  starting  of  a 
car  before  she  could  get  off,  whereby  she 
was  thrown  to  the  paved  street  and  injured. 
The  evidence  tended  to  show  that  she  had 
reached  the  rear  door  when  the  car  started, 
which  threw  her  on  the  platform  against 
the  dashboard,  but  that  she  recovered 
her  feet,  and  afterward  either  stepped 
or  jumped  off,  of  her  own  volition,  while 
the  car  was  in  motion.  Held,  that  a  judg- 
ment in  her  favor  should  be  set  aside. 
Dickson  v.  Broadway  &^  S,  A.  R,  Co.,  41 
Hmv.  Pr.  (N.  K.)  151,  i  /.  <S- 5".  330;  ap- 
peal dismissed  in  47  A'^  Y.  507. 

Plaintiff,  a  boy  seventeen  years  old,  at- 
tempted to  alight  from  a  car  by  the  front 
platform,  but  fell  under  it  and  was  injured. 
Plaintiff  testified  that  the  car  had  come  to  a 
full  stop,  at  his  request,  and  he  was  thrown 
down  by  its  suddenly  starting  while  he  was 
getting  off.  He  was  supported  by  another 
witness,  but  one  who  did  not  give  a  clear 
account  of  the  transaction.  The  conductor, 
driver,  and  five  disinterested  witnesses 
testified  that  the  car  had  not  slackened  its 
speed,  and  the  conductor  and  driver  testified 
that  nu  request  had  been  made  to  stop  it. 
It  was  further  proven  that  plaintiff  had 
several  times  admitted,  soon  after  the  acci- 
dent, that  he  jumped  off  the  car  while  it 
was  in  motion.  Held,  that  a  verdict  in  favor 
of  plaintiff  should  be  set  aside.  Bernstein 
V.  Dry  Dock,  E.  B.  &*  B.  R.  Co.,  25  N.  V. 
Supp.  669,  72  Hun  46,  55  A^.  Y.  S.  R.  341. 

In  an  action  against  a  street-car  company 
for  personal  injuries,  the  plaintiff  is  properly 
nonsuited  when  he  testifies  as  follows :  "  I 
was  standing  at  the  lookout  corner  ♦  ♦  ♦ 
and  I  signaled  the  driver  to  stop.  He 
stopped  the  car ;  by  the  time  it  came  to  me 
it  had  a  little  speed,  but  was  moving  so  little 
that  it  would  not  be  noticed.  I  was  facing 
the  left-hand  side  of  the  car  coming  down, 
placed  my  left  hand  on  the  hand  rail  and  my 


right  foot  on  the  step,  when  I  heard  the 
brake  go  off,  and  before  I  had  firm  footing 
the  car  moved,  pulled  me  along  and  broke 
my  arm;  I  was  dragged  a  short  distance." 
Picardv.  Ridge  Ave.  Pass.  R,  Co.,  147  Pa. 
St.  igs,  2yAtl.  Rep.  566. 

406.  Particular  liistructlons  as  to. 
— In  an  action  for  a  personal  injury,  the  de- 
fendant must  prevail  if  it  appear  that  when 
plaintiff  signaled  the  conductor  to  stop  the 
car  the  conductor  rang  the  bell  for  that 
purpose,  and  the  car  immediately  began  to 
slow  down,  and  that  plaintiff,  without  wait- 
ing for  the  car  to  stop,  undertook  to  and 
did  step  from  the  car  while  it  was  still  in 
motion.  It  is,  therefore,  error  to  refuse  an 
instruction  involving  this  proposition,  it 
based  upon  evidence  in  the  case.  Harmon 
V.  Washington  &*  G.  R.  Co.,  30  Am,  S-  Eng. 
R.  Cas.,  627.  6  Mackey  {D.  C.)  57,  8  Cent. 
Rep.  738. 

In  an  action  to  recover  for  a  personal  in- 
jury received  in  attempting  to  alight  from  a 
car,  defendant  asked  the  court  to  instruct 
the  jury  to  find  for  defendant,  if  they  found 
that  plaintiff,  while  the  car  was  still  in  mo- 
tion, without  ringing  the  bell,  and  without 
notice  to  the  driver  of  his  intention,  alighted 
from  the  car,  and  in  so  doing  was  thrown  to 
the  ground  by  a  jerk  of  the  car,  and  injured. 
Held,  that  the  instruction  was  properly  re- 
fused, as  the  motion  of  the  car  might  have 
been  barely  perceptible,  in  which  case  the 
driver  would  have  no  right  to  start  the  car 
by  a  sudden  jerk  without  looking  to  see  if 
passengers  were  in  the  act  of  alighting,  and 
that  the  act  of  plaintiff  in  such  case  could 
not  be  regarded  as  negligence.  Chicago 
City  R.  Co.  V.  Mumford,  3  Am.  &*  Eng.  R. 
Cas.  312,  97  ///.  560.— Quoted  in  North 
Chicago  St.  R.  Co.  v.  Williams,  140  III.  275. 

Plaintiff  alone  testified  that  she  signaled 
the  conductor  to  stop,  and  that  the  car 
came  to  a  "dead  stop,"  when  she  placed  her 
right  foot  on  the  step  with  her  left  on  the 
platform,  and  when  she  was  just  making 
the  step  to  the  ground,  the  car  started  sud- 
denly and  threw  her  off.  The  court  charged 
that  if  after  the  car  started  she  could  have 
retained  her  position  on  it,  but  instead  of 
doing  so  she  elected  to  step  from  the  car 
after  it  started,  then  she  could  not  recover. 
Held,  that  this  could  not  be  considered 
prejudicial  to  plaintiff,  when  there  was  no 
evidence  that  she  could  have  retained  her 
position  on  the  car  after  it  started,  and  that 
instead  of  doing  so  she  stepped   off.     Afc- 


STREET   RAILWAYS,  407,  408. 


493 


Laughlin  v.  Atlantic  Ave.  R.  Co.,  36  N.  Y. 
S.  R.  87.  mN.  Y.  Supp.  453. 

Plaintiff  testified  that  she  rang  the  bell, 
and  as  the  car  stopped  she  was  about  to 
step  ofl,  when  it  suddenly  started  again  and 
threw  her  down.  Defendant  introduced 
witnesses  who  were  oflicers  of  the  company 
or  otherwise  connected  with  it,  who  testi- 
fied that  plaintifl  had  said  that  siie  alighted 
from  the  car  before  it  stopped.  The  court 
charged  that  even  if  the  jury  found  that  the 
car  came  to  a  standstill,  still  it  was  a  ques- 
tion of  fact  for  them  whether  plainiiff  was 
guilty  of  contributory  negligence  or  not ; 
and  if  they  found  she  was  not,  assuming 
that  the  car  was  moving  slowly,  and  that 
the  company  was  guilty  of  negligence,  then 
plaintiff  was  entitled  to  recover.  The  court 
refused  to  charge,  at  the  request  of  defend- 
ant, that  it  was  negligence /i?r  se  for  a  per- 
son to  get  off  a  moving  car,  and  that  plain- 
tiff could  not  recover,  if  the  injury  resulted 
from  mere  accident.  Held,  that  there  was 
no  error,  and  that  a  judgment  for  plaintiff 
should  be  affirmed.  Conley  v.  Forty'Second 
St.,  M.  <S-  St.  N.  A.  R.  Co..  2  N.  Y.  Supp. 
229,  24/.  <S-  5.607. 

407.  fiiitering  car  by  front  plat- 
form.— A  company  is  only  liable  for  gross 
negligence  where  a  person  is  injured  while 
attempting  to  board  a  car  by  way  of  the 
front  platform  while  in  motion.  Basck  v. 
North  Chicago  St.  R.  Co.,  40  ///.  App.  583. 

It  is  not  negligence  per  se  for  one  to  get 
on  to  the  front  platform  of  a  horse  car 
white  the  car  is  moving  slowly.  Whether 
the  act  is  nc<;ligent  depends  on  circum- 
stances. McDonough  v.  Metropolitan  R. 
Co.,  21  Am.  &*  Eng.  R.  Cas.  354,  137  Mass. 
210. — Approved  in  Ober  v.  Crescent  City 
R.  Co.,  44  La.  Ann.  1059.  Quoted  in 
North  Chicago  St.  R.  Co.  v.  Williams,  140 
111.  275. 

If  a  street-car  is  at  rest,  or  on  the  point 
of  rest,  although  some  motion  remains,  it  is 
not  contributory  negligence,  as  a  matter  of 
law,  to  enter  by  the  front  platform.  Maker 
v.  Central  Park,  N.  6-  E.  R.  R.  Co.,  7  /.  «S- 
S,  (N.  K)  155;  affirmed  in  67  N.  Y.  52. 

It  is  not  contributory  negligence  per  se 
for  a  passenger  to  board  a  street-car  by  the 
front  platform,  when  the  car  is  moving  at 
such  a  slow  rate  of  speed  that  a  person  of 
reasonable  prudence,  in  the  exercise  of 
ordinary  care,  would  not  hesitate  to  attempt 
to  board  it ;  but  the  question  is  for  the  jury 
to  determine  on  all  the  evidence.    Stc^er 


v.  Ridge  Ave.  Pass.  R.  Co.,  33  Am.  &•  Eng. 
R.  Cas.  540.  1 19  i'rt.  St.  70.  12  Atl.  Rep.  821, 
21  W.  N.  C.  131,  II  Cent.  Rep.  427.— Fol- 
lowed IN  Pitcher  v.  People's  St.  R.  Co., 
154  Pa.  St.  560. 

An  attempt  to  board  the  front  platform 
of  a  street-car  running  at  the  rate  of  seven 
or  eight  miles  an  hour  is  such  negligence 
as  will  preclude  recovery  for  an  injury 
thereby  sustained ;  and  an  instruction  to 
that  effect  is  not  prejudicial  to  a  plaintiff 
who  contends  that  t;.e  car  slowed  down  in 
response  to  his  signal,  and  that  when  he 
was  about  to  jump  on  the  rate  of  speed  was 
suddenly  increased  to  its  usual  rate,  since 
if  its  rate  was  not  reduced  and  the  car  was 
proceeding  at  its  ordinary  speed  there  was 
no  negligence  on  the  part  of  the  company, 
and  the  injuries  must  have  been  sustained 
by  the  attempt  to  board  a  car  moving  so 
rapidly.  Woo  Dan  v.  Seattle  Elec.  R.  6-  P. 
Co.,  58  Afn.  &^  Eng.  R.  Cas.  195,  5  Wash. 
466,  32  Pac.  Rep.  103. 

408.  Violating  rule  of  company 
by  getting  ou  or  o£f  by  front  plat- 
form.—  A  regulation  of  a  company,  pro- 
hibiting passengers  from  getting  on  or  off 
the  front  end  of  any  car,  and  requiring 
them  to  enter  and  descend  b/  the  rear 
platform  only,  is  a  reasonable  regulation  ; 
and  knowingly  to  violate  it,  without  the 
compulsion  of  some  existing  necessity,  is 
conclusive  evidence  of  negligence  on  the 
part  of  the  passenger,  so  that  should  he 
sustain  an  injury  in  consequence  thereof, 
he  will  have  no  right  of  action  against  the 
company,  notwithstanding  the  driver  may 
also  have  been  negligent.  Baltimore  City 
Pass.  R.  Co.  v.  Wilkinson,  30  Md.  224. — 
Distinguished  in  Baltimore  &  O.  R.  Co. 
V.  State,  36  Md.  366.  Reviewed  in  Balti- 
more &  Y.  Turnpike  Road  v.  Cason,  72 
Md.  377. 

The  fact  that  a  driver  or  conductor  may 
have  given  permission  thus  to  use  the  plat- 
form is  immaterial,  for  the  company  cannot 
be  bound  by  the  act  of  its  servant  in 
attempting  to  dispense  with  a  known  and 
positive  regulation.  Baltimore  City  Pass. 
R.  Co.  V.  Wilkinson,  30  Md.  224. 

The  facts  that  a  notice  of  the  regulation 
requiring  passengers  to  enter  and  leave  the 
cars  by  the  rear  platform  only  was  put  up 
inside  of  all  the  cars,  and  was  legible  to  all 
who  entered  them,  and  that  plaintiff  had 
often  previously  ridden  in  the  cars,  were 
evidence  from  which  it  might  be  inferred 


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494 


STREET   RAILWAYS,  409,  410. 


that  he  had  notice  of  its  existence.  Balti- 
more City  Pass.  R,  Co.  v.  Wilkinson,  30 
Md.  224. 

Plaintiff  gave  up  his  seat  in  a  street-car 
to  an  elderly  lady,  and  while  standing  on 
the  front  platform  the  car  ran  off  the  track. 
At  the  request  of  the  driver  plaintiff  got  off 
and  assisted  in  getting  the  car  on  the  track 
again,  and  while  plaintiff  was  in  the  act  of 
again  getting  on  the  front  platform  the 
driver  started  the  horses,  without  signal  or 
warning,  and  plaintiff  was  thrown  down, 
and  after  being  dragged  some  distance  was 
injured  by  the  wheel.  Notices  were  posted 
in  the  car  requiring  passengers  to  enter  and 
leave  only  by  the  rear  platform.  Held, 
that,  even  if  it  be  conceded  that  plaintiff 
was  negligent  in  entering  by  the  front  plat- 
form, it  still  remained  a  question  whether, 
by  the  exercise  of  proper  care,  injury  could 
not  have  been  avoided  after  the  danger  was 
seen  ;  and  if  the  injury  could  have  been  thus 
avoided,  the  company  was  liable.  People's 
Pass.  R.  Co.  V.  Green,  6  Am.  6-  Eng.  R. 
Cas.  168,  56  Md.  84. 

409.  Missouri  act  to  prevent  get- 
ting on  or  oil  front  platform.  —The 
effect  and  intention  of  Mo.  Act  of  Jan.  16, 
i860,  concerning  street  railroads,  is  that 
when  the  injury  to  the  passenger  is  occa- 
sioned by  his  getting  on  or  off  the  car  at 
the  forward  platform  it  shall  be  presumed 
as  a  matter  of  law  that  the  negligence  of  the 
passenger  himself  contributed  to  produce 
the  injury.  McKeon  v.  Citizens'  R.  Co.,  42 
Mo.  79. 

But  the  above  statute  does  not  apply  to 
a  case  wliere  the  passenger  at  the  time  of 
the  injury  is  not  getting  on  or  off  but  is 
riding  on  the  steps  of  the  platform  with  the 
knowledge  and  by  the  direction  of  the 
driver.  Seymour  v.  Citizens'  R.  Co.,  58  Am. 
&•  Eng.  R.  Cas.  395,  114  Mo.  266,  21  S.  IV. 
Rep.  739.— Quoting  Muehlhausen  v.  St. 
Louis  R.  Co.,  91  Mo.  347. 

410.  Biding  on  front  platform.— 
In  an  action  for  personal  injuries  occa- 
sioned by  plaintifl  falling  under  a  moving 
horse-car,  his  evidence  tended  to  show  that 
he  was  pushed  off  the  front  platform  by  the 
driver;  the  defendant's  evidence  that  he 
was  intoxicated  and  made  a  lunge  towards 
the  car,  and  that  the  driver  tried  to  prevent 
his  going  under  it.  Defendant  offered  in 
evidence  a  rule  forbidding  its  drivers  to 
allow  intoxicated  persons  on  the  front  plat- 
form, and  a  notice  posted  in  the  car  pro- 


hibiting passengers  from  riding  on  the  front 
platform.  There  was  no  evidence  that  plain- 
tiff had  any  knowledge  either  of  the  rule 
or  of  the  notice,  except  that  it  appeared 
that  he  had  ridden  in  the  cars  before.  Held, 
that  the  rule  and  the  notice  were  properly 
admitted  in  evidence.  O'Neill  v.  Lynn  &• 
B.  R.  Co.,  155  Mass.  371,  29  N.  E.  Rep.  630. 

As  matter  of  law,  the  fact  that  a  street- 
railway  passenger  voluntarily  puts  himself 
on  the  front  platform  of  a  car,  when  there 
is  room  inside,  will  not  absolve  the  company 
from  liability  for  injuries  there  received  by 
him.  Burns  v.  Bellefontaine  R.  Co.,  50  Mo. 
139, 3  Am,  Ry.  Rep.  490.— Quoting  McKeon 
V.  Citizens'  R.  Co.,  42  Mo.  79.  —  Distin- 
guished IN  Ashbrook  v,  Frederick  Ave. 
R.  Co.,  18  Mo.  App.  290. 

Plaintifl  entered  a  car  by  the  front  plat- 
form and  was  soon  afterwards  injured  by  a 
collision  in  the  street.  The  evidence  showed 
that  he  had  ample  time  to  have  passed  into 
the  car,  but  having  discovered  his  wife  in- 
side, stopped  and  was  bowing  to  her.  Held, 
that  this  was  a  commendable  act  of  gal- 
lantry, and  an  admirable  performance  for  a 
husband,  but  could  not  render  the  company 
liable  for  damages.  Ashbrook  v.  Frederick 
Ave.  R.  Co.,  18  Mo.  App.  290. —  DISTIN- 
GUISHING Clark  V.  Eighth  Ave.  R.  Co.,  36 
N.  Y.  137;  Huelsenkamp  v.  Citizens'  R. 
Co.,  37  Mo.  537  ;  Burns  v.  Bellefontaine  R. 
Co.,  50  Mo.  139. 

It  is  not  necessarily  negligence  for  a  pas- 
senger to  ride  on  the  front  platform  of  a 
moving  car.  Nolan  v.  Brooklyn  City  &*  N. 
R.  Co.,  3  Am.  6-  Eng.  R.  Cas.  463,  87  N. 
Y.   63,  41    Am.  Rep.  345.— DISTINGUISHING 

Phillips  V.  Rensselaer  &  S.  R.  Co.,  49  N.  Y. 
177  ;  Clark  v.  Eighth  Ave.  R.  Co.,  36  N.  Y. 
13s  ;  Ward  v.  Central  Park,  N.  &  E.  R.  R. 
Co.,  1 1  Abb.  Pr.  N.  S.  411  ;  Solomon  v.  Cen- 
tral Park,  N.  &  E.  R.  R.  Co.,  i  Sweeny  298. 
—Distinguished  in  Hayes  z/.  Forty-second 
St.  &  G.  S.  F.  R.  Co.,  21  Am.  &  Eng.  R. 
Cas.  358,  97  N.  Y.  259.  Quoted  in  Good- 
rich V.  Pennsylvania  &  N.  Y.  C.  &  R.  Co., 
29  Hun  (N.  Y.)  50.  Reviewed  in  Hourney 
V.  Brooklyn  City  R.  Co.,  27  N.  Y.  S.  R.  49, 
7  N.  Y.  Supp.  602.— Hourney  v.  Brooklyn 
City  R.  Co.,  7  N.  V.  Supp.  602,  27  N.  Y.  S. 
R.  49;  affirmed  in  130  N.  K  641,  mem.,  29 
A''.  E.  Rep.  1033,  mem. — Applying  Nolan 
V.  Brooklyn  City  &  N.  R.  Co.,  87  N.  Y.  63. 
Plaintiff  entered  a  street-car  at  night, 
when  it  was  too  dark  to  see  the  lettering  on 
the  outside.    There  was  no  conductor,  and 


STREET   RAILWAYS,  411. 


495 


he  passed  through  the  car  to  the  front  door 
to  ask  the  driver  as  to  its  destination,  and 
while  awaiting  an  answer  the  car  jumped  a 
switch,  became  derailed,  and  plaintiff  was 
injured.  Held,  that  he  had  a  right  to  in- 
quire as  to  the  destination  of  the  cat,  end 
he  was  not  guilty  of  negligence  in  standing 
where  he  did  until  he  received  an  answer. 
Farretl  v.  Houston,  W.  S.  &*  P.  F.  R.  Co., 
21  N.  V.  S.  R.  84,  51  Hun  640,  mem.,  4  N. 
Y.  Supp.  597. 

Plaintiff  testified  that  he  was  riding  on 
the  front  platform,  and  not  on  the  guard 
rail  in  front  of  the  car,  but  this  was  con- 
tradicted by  two  witnesses  for  defendant. 
Held,  that  the  question  ' '  his  position  was 
for  the  jury.  Hourney  v.  Brooklyn  City  R, 
Co.,  7  ;v:  Y.  Supp.  602.  27  N.  Y.  S.  R.  49; 
affirmed  in  130  N.  Y.  641,  mem.,  29  N.  E. 
Rep.  1033,  mem. 

Plaintiff  was  voluntarily  riding  on  the 
step  of  the  front  platform  of  a  car  at  the 
time  he  was  injured.  Plaintiff's  contention 
was  that  though  he  may  have  been  negli- 
gent  in  riding  where  he  did,  still  the  com- 
pany was  liable  because  the  driver  did  not 
stop  when  requested  and  let  him  off,  and 
that  the  accident  happened  after  such  re> 
fus^.  Held,  that  the  failure  to  stop,  not 
being  the  cause  of  plaintiff's  occupying  the 
position  he  did,  would  not  render  the  com- 
pany liable.  Solomon  v.  Central  Park,  N. 
&*  E.  R.  R.  Co.,  I  Sweeny  {N.  Y.)  298. 

Where  the  measure  of  duty  on  the  part 
of  a  passenger  is  ordi^  iry  and  reasonable 
care,  and  the  standard  shifts  with  the  cir- 
cumstances of  the  case,  the  question  of  con- 
tributory negligence  is  for  the  jury.  So 
standing  on  the  step  of  the  front  platform  of 
a  crowded  street-railway  car,  with  the  im- 
plied assent  of  the  conductor  and  driver,  is 
not  contributory  negligence  per  se.  Ger- 
mantown  Pass.  R.  Co.  v.  Walling,  1  Am.  4- 
Eng.  R.  Cas.  20,  97  Pa.  St.  55,  37  Am.  Rep. 
711,  «.— Quoting  Meesel  v.  Lynn  &  B.  R. 
Co.,  8  Allen  (Mass.)  234.  —  Quoted  in 
North  Chicago  St.  R.  Co.  v.  Williams,  140 
III.  275;  TopekaCity  R.  Co.  v.  Higgs,  34 
Am.  &  Eng.  R.  Cas.  529,  38  Kan.  375. 

411. when  the  car  is  crowded. 

— A  person  who,  desiring  to  ent«ir  a  street- 
car, finds  several  persons  standing  on  the 
platforms,  and  through  the  window  sees 
several  others  standing  up  in  the  aisles, 
while  all  the  seats  appear  to  be  occupied, 
is  not  guilty  of  negligence  because  he  stands 
on  the  front  platform ;  and  his  knowledge 


of  f.  rule  of  the  company  forbidding  pas- 
sengers to  stand  on  the  platforms  does  not 
make  him  guilty  of  negligence  as  matter  of 
law,  when  the  conductor  accepted  his  fare 
without  objection,  and  there  is  evidence 
tending  to  show  that  the  position  was  not 
obviously  dangerous,  and  that  the  injury  he 
received  was  caused  by  the  speed  of  the 
car  while  passing  around  a  curve.  On  these 
facts  the  question  of  negligence  vel  non  is 
properly  left  to  the  jury.  Highland  Ave. 
&*  B.  R.  Co.  V.  Donovan,  52  Am.  &*  Eng.  R. 
Cas.  568,  94  Ala.  299,  10  So.  Rep.  139. 

A  passenger  who,  by  reason  of  the  crowd- 
ed condition  of  a  street-car  and  of  the  rear 
platform,  is  obliged  to  ride  on  the  front 
platform,  has  a  right  to  do  so  in  the  absence 
of  regulations  to  the  contrary,  and  is  not 
guilty  of  negligence  in  so  doing.  Archer 
V.  Ft.  Wayne  &*  E.  R.  Co.,  48  Am.  &*  Eng. 
R.  Cas.  so,  87  Mich.  101, 49  N.  W.  Rep.  488. 

It  is  a  question  for  the  jury  whether  such 
manner  of  riding  is  so  dangerous  that  the 
company,  in  discharging  its  duty  to  the 
public,  should  construct  some  kind  of  a 
guard  to  prevent  passengers  from  being 
thrown  from  the  car,  and  the  question  of 
the  negligence  of  a  passenger  while  so 
riding,  and  of  the  company,  should  be  sub- 
mitted to  the  jury  under  proper  instruc- 
tions.   Archer  v.  Ft.   Wayne  &*  E.  R.  Co., 

48  Am.  &*  Eng.  R.  Cas.  50,  87  Mich.  loi, 

49  A^.  W.  Rep.  488. 

Plaintiff  was  riding  on  a  horse-car,  the 
inside  of  which  was  full  of  passengers,  and 
both  platforms  were  crowded.  He  stood  on 
the  front  platform,  holding  on,  when  the 
violence  of  a  sudden  jerk,  caused  by  the 
driver  whipping  his  horses,  threw  him  off. 
Plaintiff  was  sworn  and  gave  evidence  in 
the  cause.  The  company  called  witnesses 
and  introduced  evidence  to  contradict  the 
testimony  of  plaintiff.  The  president  of 
the  company  was  not  allowed  to  give  in  evi- 
dence a  statement  made  in  writing  by  the 
conductor  of  the  car  after  the  accident. 
Held,  that  it  was  not  error  to  refuse  to  non- 
suit. North  Hudson  County  R.  Co.  v.  May, 
27  Am.  &*  Eng.  R.  Cas.  151,48  N./.  L.  401, 
5  Atl.  Rep.  276 ;  reversed  on  other  grounds  in 
49  N.J.  L.  445,  9  Atl.  Rep.  688. 

Plaintiff  got  on  a  crowded  car  at  night, 
and  for  want  of  room  elsewhere,  rode  on 
the  front  platform,  from  which  he  was 
pushed,  after  the  car  was  in  motion,  by  the 
crowd.  Held,  that  he  was  guilty  of  con- 
tributory negligence,  and  could  not  main- 


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496 


STREET   RAILWAYS,  412,413. 


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111 


tain  an  action  for  the  injuries  sustained. 
Tregear  v.  Dry  Dock,  E.  B.  <J-  B.  R.  Co.,  14 
Abb.  Pr.  N.  S.  (N.  Y.)  49. 

A  notice  was  posted  inside  of  a  car  that 
passengers  must  enter  and  leave  at  the  rear 
platform,  and  must  not  stand  on  the  car 
steps.  Plaintiff,  who  was  a  stranger,  was 
permitted  to  get  on  and  to  stand  on  the 
front  platform,  or  the  steps,  when  the  car 
was  so  crowded  that  he  could  'not  get  any 
better  place,  and  the  usual  fare  was  collected 
from  him.  Held,  that  he  was  not  guilty  of 
contributory  negligence,  as  a  matter  of  law, 
whether  he  knew  of  the  notice  or  not. 
Hadencamp  v.  Second  Ave.  R.  Co.,  i  Sweeny 
{N.  K.)  490.— Following  Clark  v.  Eighth 
Ave.  R.  Co.,  36  N.  Y.  135;  Edgerton  v. 
New  York  &  H.  R.  Co.,  39  N.  Y.  227. 

Plaintiff,  standing  on  the  front  platform 
of  a  crowded  car,  was  thrown  off  by  a  jolt 
and  injured,  but  it  did  not  appear  whether 
he  was  holding  on  to  the  iron  rail  on  the 
platform  or  not.  Held,  that  the  fact  of 
plaintiff  not  proving  affirmatively  that  he 
was  so  holding  on  was  not  a  ground  for 
nonsuit.  Cornish  v.  Toronto  St.  R.  Co.,  23 
U.  C.  C.  P,  355- 

412. when  there  is  room  inside. 

— Plaintiff,  while  riding  on  the  front  plat- 
form of  a  car,  fell  or  slipped  off,  and  his 
foot  was  crushed  by  the  rear  wheel.  The 
car  was  in  good  repair,  and  neither  the  con- 
ductor nor  the  driver  was  negligent  in  any 
particular.  There  was  no  unusual  or  ex- 
traordinary motion  of  the  car  at  the  time  of 
the  injury.  In  the  car,  as  in  the  other  cars 
of  the  company,  there  was  a  printed  notice 
in  large  type,  forbidding  passengers  to  stand 
C-:  sit  on  the  front  platform.     Plaintiff,  who 

rd  the  cars  frequently,  and  was  able  to 
Y.  '  tt:;stified  that  he  had  never  read  the 
."  ..  ce.  There  was  ample  standing  room 
ir.;-;  '•'  »he  car  when  the  accident  happened, 
!''r\  'hat  the  conduct  of  plaintiff,  in  being 
on  the  front  platform  of  the  car,  a  perilous 
position,  in  violation  of  a  reasonable  regu- 
lation of  the  company,  directly  contributed 
to  the  injury,  and  he  was  not  entitled  to  re- 
cover. Baltimore  &*  V.  Turnpike  Road  v. 
Cason.  72  Md.  377,  20  Atl.  Rep.  113.— QUOT- 
ING Baltimore  &  O.  R.  Co.  v.  State,  63  Md. 
144;  Sweeny  v.  Old  Colony  &  N.  R.  Co.,  10 
Allen  (Mass.)  368.  Reviewing  Baltimore 
City  Pass.  R.  Co.  v.  Wilkinson,  30  Md.  232 ; 
Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St. 
318;  Hickey  v.  Boston  &  L.  R.  Co.,  14 
Allen  432. 


Standing  on  the  front  platform  of  a 
horse-car  when  there  is  room  inside  is  not 
conclusive  evidence  that  the  person  was  not 
in  the  exercise  of  due  care.  Whether  he 
was  is  for  the  jury.  Maguire  v.  Middlesex 
R.  Co.,  1 1 5  Mass,  239 

Plaintiff  rode  on  the  front  platform,  as 
defendant  allowed  smoking  only  there  and 
he  was  smoking.  The  conductor  took  fare 
from  him  and  allowed  him  to  remain  with- 
out objection.  There  was  abundant  room 
inside.  By  a  jolt  of  the  car  he  was  thrown 
off  and  injured.  The  statute  of  New  York 
relieves  railroad  companies  from  liability 
where  they  post  notices  on  their  cars  warning 
against  riding  on  the  platform  and  furnish 
seats  to  passengers  in  the  cars.  Defendant 
had  posted  this  notice:  "Passengers  are 
forbidden  to  get  on  or  off  the  car  while  in 
motion,  or  on  or  off  the  front  platform,  or 
on  or  off  the  side  except  nearest  the  side- 
walk." Held:  (i)  that,  the  notice  of  defend- 
ant not  forbidding  passengers  to  ride  on  the 
platform,  the  statute  did  not  relieve  defend- 
ant from  liability ;  (2)  that  independently  of 
the  mandate  of  the  statute  it  is  not,  even  in 
the  case  of  steam  cars,  negligence  per  se  for 
a  passenger  to  stand  on  the  front  platform 
of  a  moving  car.  Nolan  v.  Brooklyn  City 
6-  N.  R.  Co.,  3  Am.  6-  Eng.  R.  Cas.  463,  87 
N.  Y.  63,  41  Am.  Rep.  345.— Explained  in 
Worthington  v.  Central  Vt.  R.  Co.,  64Vt.  107. 

413.  Leaving  car  by  front  plat- 
form.—Plaintiff,  at  night,  entered  a  street- 
car for  the  purpose  of  putting  on  her  child 
as  a  passenger,  intending  to  leave  the  car 
herself  at  once.  The  rear  platform  was  so 
crowded  that  she  had  to  get  on  the  front 
platform,  which  was  not  an  unusual  thing 
for  passengers  to  do.  She  testified  that  as 
she  entered  she  told  the  driver  that  she  was 
only  putting  her  child  on  the  car  and  would 
then  get  off.  When  in  the  act  of  stepping 
down  the  driver  whipped  up  the  mules, 
without  any  notice,  and  the  sudden  jerk 
threw  plaintiff  to  the  ground,  and  her  arm 
was  crushed  under  the  car  wheel.  Defend- 
ant introduced  several  witnesses  who  testi- 
fied that  plaintiff  stepped  off  while  the  car 
was  moving,  without  any  request  that  the 
car  stop.  Held,  that  there  was  sufficient 
evidence  to  sustain  a  verdict  for  plaintiff. 
Coast  Line  R.  Co.  v.  Boston,  83  Ga.  387, 9  S, 
E.  Rep.  1108. 

It  is  not  contributory  negligence  for  a 
passenger  to  alight  from  a  street-car  by  the 
front  platform,  in  the  absence  of  any  notice 


STREET   RAILWAYS,  414. 


497 


to  the  contrary ;  nor  to  request  the  driver, 
instead  of  the  conductor,  to  stop  the  car. 
Mulhado  V.  Brooklyn  City  R.  Co. ,  30  N.  Y.  370. 

The  fact  that  a  passenger  left  a  car  by  tlie 
front  platform,  in  violation  of  a  known  regu- 
lation of  the  road,  did  not  make  her  guilty 
of  contributory  negligence.  Piatt  v.  Forty- 
second  St.  Sf  G.  S.  F.  R.  Co..  \  T.&*  C. 
(N.  V.)  406,  2  Hun  124. 

There  was  a  conflict  of  evidence  as  to 
whether  a  street-car  was  stopped  at  the  re- 
quest of  plaintiff's  decedent  and  again  neg- 
ligently started  while  he  was  in  the  act  of 
getting  ofl.  Held,  that  the  case  should  be 
left  to  the  jury,  though  there  was  evidence 
tending  to  show  that  the  decedent  was 
unnecessarily  upon  the  front  platform  and 
attempted  to  aligiit  therefrom.  Lax  v. 
Forty-second  St.  &*  G.  S.  F.  R.  Co.,  14  /. 
6-  S.  (N.  Y.)  448.— Following  Ginna  v. 
Second  Ave.  R.  Co.,  67  N,  Y.  596 ;  Maher 
V.  Central  Park.  N.  &  E.  R.  R.  Co.,  67  N. 
Y.  52.  Quoting  Clark  v.  Eighth  Ave. 
R.  Co..  36  N.  Y.  135. 

414.  Bidiug  ou  platform.*— Plain- 
tiff was  standing  on  the  rear  platform  of  a 
street-car,  steadying  himself  by  holding  the 
rail  of  the  platform,  when  his  hand  was  in- 
jured by  being  struck  by  the  wheel  of  de- 
fendant's dray,  which  was  passing  in  the 
rear  of  the  car.  Held,  that  the  court  could 
not  say.  as  a  matter  of  law,  that  plaintiff  was 
guilty  of  contributory  negligence  in  standing 
where  he  did.     Secret  \.  Eisen,  41  Cal.  109. 

In  an  action  by  one  injured  while  getting 
on  a  horse-car  or  standing  on  the  running 
board  or  platform  seeking  a  seat,  defendant 
asked  the  court  to  instruct  the  jury,  as  a 
matter  of  law,  that  if  they  believed,  from 
the  evidence,  that  plaintiff  had  no  right  to 
be  where  he  was  at  the  time  of  the  accident, 
then  defendant  was  not  liable  for  the  in- 
jury, unless  it  was  done  wilfully,  which  was 
refused.  Held,  no  error,  as  it  was  obscure 
and  calculated  to  confuse  the  jury,  and 
failed  to  state  any  facts  upon  which  he  had 
no  right  to  be  where  he  was  at  the  time  uf 
the  accident.  North  Chicago  Sf.  R.  Co.  v. 
IVilliams,  52  Am.  &*  Eng.  R.  Cas.  522.  140 
///.  275.  29  N.  E.  Rep.  672 ;  affirming  4,0  III. 
App.  590. 

•  Riding  on  platform  of  cars,  see  notes.  18  Am. 
&  Eng.  R.  Cab.  201  ;  16  Id.  374  ;  a  A/.  26 ;  6  Id. 
460  ;  47  Id.  584.  abstr. 

Contributory  negligence  of  passenger  in  rid- 
ing on  street-car  platform,  see  notes,  37  Am. 
Rip.  710 ;  4»  Id.  347  ;  "  L.  R.  A.  129. 
7  D.  R.  D.— 32 


A  company  has  the  right  to  carry  passen- 
gers on  its  car  platforms,  and  if  a  passenger 
be  injured  while  standing  there,  without 
objection  from  the  company,  the  question 
of  his  contributory  negligence  is  for  the 
jury.  Topeka  City  R,  Co.  v.  Higgs,  34  Am. 
&»  Eng.  R.  Cas.  529,  38  Kan.  375,  16  Pac. 
Rep.  667. 

The  court  cannot  say,  on  a  bill  of  excep- 
tions, that  riding  upon  the  outside  platform 
of  a  horse-car  is  such  a  want  of  ordinary 
care  as  to  prevent  a  recovery  for  an  in- 
jury sustained  by  being  thrown  therefrom. 
Meesel  v.  Lynn  &*  B.  R.  Co.,  8  Allen  (Mass.) 
234.— Distinguishing  Gavett  v.  Manches- 
ter &  L.  R.  Co.,  16  Gray  501 ;  Todd  v.  Old 
Colony  &  F.  R.  R.  Co.,  3  Allen  18.  7  Allen 
207  ;  Gahagan  v.  Boston  &  L.  R.  Co..  i  Allen 
187 ;  Lucas  v.  New  Bedford  &  T.  R.  Co.,  6 
Gray  64.— Distinguished  in  Wills  w.  Lynn 
&  B.  R.  Co..  129  Mass.  351.  Quoted  in 
Topeka  City  R.  Co.  v.  Higgs.  34  Am.  & 
Eng.  R.  Cas.  529,  38  Kan.  375 ;  Lapointe  v, 
Middlesex  R.  Co.,  28  Am.  &  Eng.  R.  Cas. 
198,  144  Mass.  18;  Germantown  Pass.  R. 
Co.  V.  Walling,  2  Am.  &  Eng.  R.  Cas.  20,  97 
Pa.  St.  55,  37  Am.  Rep.  711.  «. 

It  is  a  question  of  fact  for  the  jury. 
Briggs  V.  Union  St.  R.  Co.,  37  Am.  &*  Eng. 
R.  Cas.  204.  148  Mass.  72.  19  A''.  E.  Rep.  19. 
—Quoted  in  North  Chicago  St.  R.  Co. 
V.  Williams,  140  III.  275. 

It  is  the  duty  of  a  passenger  boarding  a 
street-car  to  occupy  a  safe  position  therein, 
when  there  is  room  for  him  inside;  and 
where  he  voluntarily  occupies  a  position  on 
the  step  of  the  platform  and  remains  there 
during  the  transit,  he  assumes  all  the  risks 
of  danger  ordinarily  incident  to  his  posi- 
tion, but  he  does  not  assume  a  risk  of 
danger  created  by  the  negligence  of  the 
carrier,  e.  g.,  running  the  car  at  a  dangerous 
and  unusual  rate  of  speed.  Such  speed,  if  it 
causes  the  passenger  to  lose  his  hold  and  to 
fall  from  the  car,  will  be  deemed  the  proxi- 
mate cause  of  the  injury.  Willmott  v.  Cor- 
rigan  Con.  St.  R.  Co.,  106  Mo.  535,  17  S.  IV. 
Rep.  490.— Reviewed  in  Seymour  v.  Citi- 
zens' R.  Co.,  1 14  Mo.  266. 

It  is  not  negligence  per  se  on  the  part  of 
a  passenger  on  a  horse  car  to  ride  on  the 
platform,  and  this  is  true  regardless  of  the 
question  of  room  in  the  car.  Seymour  v. 
Citizens'  R.  Co.,  114  Mo.  266,  21  S.  W.  Rep. 
739.— Quoting  Geitz  v.  Milwaukee  City  R. 
Co.,  72  Wis.  307.  Reviewing  Willmott  v. 
Corrigan  Con.  St.  R.  Co.,  106  Mo.  535. 


498 


STREET  RAILWAYS,  416-417. 


m  : 


The  mere  fact  of  riding  on  a  platform  of 
a  street-car  is  not  conclusive  proof  of  negli- 
gence. O'//  X.  Co.  V.  Lte,  34  Am.  &»  Eng^ .  /t. 
Cas.  566,  50  N.  /.  L.  435,  7  Am.  St.  Rtp.  798, 
\\  Art. Rep.  883, 13  Cent.  Rep.  273.  Dickson 
V.  Ridge  Ave.  Pass.R.  Co.,  \9Phila.  (Pa.)4y3. 

It  is  not  negligence  fier  si  for  one  riding 
upon  the  platform  of  the  car  to  omit  to  take 
hold  of  the  iron  bar  or  rail  to  prevent  being 
thrown  from  the  platform.  Ginna  v.  Second 
Ave.  R,  Co.,  67  N.  Y.  596,  mem.;  affirming 
8  Hun  494. — Followed  in  Lax  v.  Forty- 
second  St.  &  G.  S.  F.  R.  Co.,  14  J.  &  S.  (N. 
Y.)  448.  Reviewed  in  Goodrich  v.  Penn- 
sylvania &  N.  Y.  C.  &  R.  Co.,  29  Hun  (N. 
Y.)  50. 

The  act  of  a  passenger  in  riding  upon  the 
rear  platform  of  a  crowded  street-railway 
car  is  not  contributory  negligence,  where 
he  was  struck  and  injured  by  the  pole  of  a 
following  car,  although  the  accident  would 
not  have  happened  except  for  his  position. 
That  position  was  a  condition  but  not  a 
cause  of  the  injury ;  and  the  court  prop- 
erly withdrew  from  the  jury  the  question  of 
contributory  negligence.  Thirteenth  &*  F. 
St.  Pass.  R.  Co.  V.  Boudrou,  2  Am.  &*  Ettg.  R. 
Cas.  30,  92  Pa.  St.  475,  37  Am.  Rep.  707. 

416. when  the  car  Is  crowded. 

— Where  a  street-car  is  so  crowded  that  a 
passenger  cannot  find  a  place  inside  with- 
out great  discomfort,  and  the  conductor 
accepts  his  fare  without  insisting  on  his 
finding  a  place  inside,  the  fact  of  his  riding 
on  the  platform  will  not  of  itself  prevent  a 
recovery  for  an  injury  received.  His  con- 
duct presents  a  question  for  the  jury.  Ginna 
V.  Second  Ave.  R.  Co.,  67  N.  Y-  396;  ajirm- 
ing  8  Hun  494.  Walling  v.  Railroad  Co., 
12  Phila.  (Pa.)  309. 

It  is  not  of  itself  negligence,  either  on 
the  part  of  the  passenger  or  on  the  part  of 
a  street-railway  company,  that  an  adult,  or 
a  person  reasonably  competent  to  take  care 
of  himself,  should  occupy  by  permission  a  ' 
platform  of  a  crowded  passenger-car.  Sand- 
ford  V.  Hestonville,  M.  &*  F.  Pass.  R.  Co., 
136  Pa.  St.  84,  20  Art.  Rep.  799. 

The  carrier,  however,  is  bound  to  higher 
care  and  vigilance  when  the  platform  is 
crowded,  in  proportion  as  that  place  is 
more  dangerous  than  a  seat  inside  the  car; 
and,  in  case  of  injury,  this  fact,  with  all  the 
circumstances,  will  be  considered  in  deter- 
mining the  carrier's  responsibility.  Sand/ord 
V.  Hestonville,  M.  &-  F.  Pass.  R.  Co.,  136  Pa. 
Si  84,  20  Art.  Rep.  799. 


416.  when  there  ig  room  in- 
side.— Where  there  is  abundant  standing 
room  inside  of  a  car  in  which  there  arc 
pendent  straps  which  a  passenger  may  hold 
while  standing,  he  is  guilty  of  contributory 
negligence  who  rides  upon  the  platform, 
and  if  an  injury  results  to  him  which  would 
not  have  occurred  had  he  been  inside,  he 
cannot  maintain  an  action.  Andrews  v. 
Capitol.  N.  O.  St.  &•  S.  W.  R.  Co.,  2  Mackey 
{D.  C.)  137. 

Standing  on  the  rear  platform  of  a  mov- 
ing street-car,  even  when  there  is  room  in- 
side, is  not,  under  ordinary  circumstances, 
negligence  per  se,  at  least  in  the  absence  of 
any  published  rule  of  the  carrier  forbidding 
it.  Mats  V.  St.  Paul  City  R.  Co.,  52  Minn. 
•59.  53  -/v.  IV.  Rep.  107 1. 

The  fact  that  a  passenger  on  a  street-car 
stands  upon  the  outer  platform  when  there 
is  opportunity  to  take  a  seat  in  the  car, 
while  it  will  ordinarily  constitute  a  defense 
in  an  action  against  the  railroad  company, 
is  not  a  defense  in  an  action  against  an- 
other party  to  recover  damages  for  negli- 
gence causing  injury  to  the  passenger.  Con- 
nolly V.  Knickerbocker  Ice  Co.,  39  Am.  <S* 
Eng.  R,  Cas.  441,  114  A';  Y.  104,  21  N.  E. 
Rep.  101,  22  N.  Y.  S.  R.  675 ;  affirming  8 
N.  Y.  S.  R.  901.— Following  Clark  v. 
Eighth  Ave.  R.  Co.,  36  N.  Y.  135. 

417. against  rule  of  company.* 

— Plaintiff  sat  on  the  front  platform  of  a 
street-car,  with  his  feet  on  the  step,  against 
the  rules  of  the  company  and  the  warning 
of  the  driver,  and  without  any  reasonable 
excuse  therefor.  Held,  that  he  did  not  ex- 
ercise such  care  as  would  enable  him  to 
maintain  an  action  against  the  company 
for  an  injury  received.  Wills  v.  Lynn  &* 
B.  R.  Co.,  2  Am.  6-  Eng.  R.  Cas.  27,  129 
Mass.  351.  — Distinguishing  Meesel  v. 
Lynn  &  B.  R.  Co.,  8  Allen  234.— Distin-' 
GUiSHED  IN  Lapointe  v.  Middlesex  R.  Co., 
28  Am.  &  Eng.  R.  Cas.  198,  144  Mass.  18. 

It  is  within  the  power  of  street-railway 
companies  to  prohibit  passengers  from  rid- 
ing upon*  the  platforms  of  cars,  or  to  give 
notice  that  those  who  ride  there  do  so  at 
their  own  risk,  or  to  limit  the  number  of 
passengers  which  each  car  shall  carry,  and 
require  them  to  ride  inside.  Until  they 
adopt  some  such  regulation,  and  notify  the 
public,  it  is  but  reasonable  to  hold  them 

*  Rule  "to  keep  oflf  platforms"  not  applica- 
ble to  one  who  goes  there  in  apprehension  of 
danger,  see  47  Am.  &  Eng.  R,  Cas.  585,  abstr. 


STREET   RAILWAYS,  418-420. 


499 


liable  for  injuries,  resulting  from  their  own 
negligent  acts,  to  their  patrons,  who  are 
themselves  in  the  exercise  of  reasonable 
care,  whether  riding  upon  the  platforms  or 
within  the  cars.  Upham  v.  Detroit  City  R. 
Co.,  85  Mich.  12,  48  N.  W.  Rep.  199. 

In  the  absence  of  a  regulation  forbidding 
riding  on  the  platforms  of  street-cars,  con- 
tributory negligence  cannot  be  imputed  to 
a  passenger  from  the  fact  of  his  being  in- 
jured while  riding  on  the  platform.  Hunt 
V.  Missouri R.  Co.,\\  Mo.  App.  160 ;  reversed 
on  other  grounds  in  89  Mo.  (xfj. 

418.  Standing  on  very  edge  of 
platform.— To  stand  upon  the  outer  edge 
of  a  car  platform,  without  holding  on  to 
anything,  where  the  street  is  in  a  bad  con- 
dition and  the  car  is  liable  to  jolt  or  jerk, 
and  to  maintain  such  a  position  after  an 
opportunity  to  occupy  a  place  of  compara- 
tive safety,  is  such  negligence  as  to  bar  a 
recovery  for  an  injury,  no  matter  how  neg- 
ligent the  company  may  have  been.  Ward 
V.  Central  Park,  N.  &»  E.  R.  R.  Co.,  i  /.  ** 
S.  (N.  V.)  392,  42  //<m/.  Pr.  289,  1 1  Abb.  Pr. 
N.  S.  411,  —  Reviewing  Hadencamp  v. 
Second  Ave.  R.  Co.,  i  Sweeny  (N.  Y.)  490; 
Clark  V.  Eighth  Ave.  R.  Co.,  36  N.  Y.  135; 
Sheridan  v.  Brooklyn  City  &  N.  R.  Co.,  36 

N.  Y.  39- 

419.  New  York  Act  against  riding 
on  platform.— As  to  whether  the  provi- 
sion of  N.  Y.  General  Railroad  Act  of  1850, 
ch.  140,  §46,  relieving  a  railioad  company 
from  liability  for  injuries  received  by  a  pas- 
senger on  the  platform  of  a  car  when  it 
posts  a  notice  in  the  car  warning  passengers 
against  so  riding,  and  furnishes  a  se.nt  in 
the  car  for  the  passenger,  applies  to  street 
railways,  quare.  Hayes  v.  Forty-second  St. 
6-  G.  S.  F.  R.  Co.,  21  Am.  &*  Eng.  R.  Cas. 
358,  97  N.  Y.  259 ;  reversing  if)  26  Hun  534. 
— Distinguishing  Nolan  v.  Brooklyn  City 
&  N.  R.  Co.,  87  N.  Y.  63. 

The  above  statute  does  not  apply  to 
street-railroad  companies.  Lax  v.  Forty- 
second  St.  &*  G.  S.  F.  R.  Co.,  14  /.  &»  S. 
(N.  Y.)  448.  Vail  V.  Broadway  R.  Co.,  6 
Misc.  20,  26  N.  Y.  Supp.  59,  58  A'.  Y.  S.  R. 
124. — Quoting  In  re  Washington  St.  A.  & 
P.  R.  Co..  115  N.  Y.  447. 

By  a  rule  of  defendant  company,  smoking 
was  permitted  on  the  front  platforms  of  its 
cars.  Held,  that  it  should  not  be  permitted 
to  shield  itself  from  liability  as  a  common 
carrier  behind  the  provisions  of  the  Gen- 
eral Railroad  Act,  §  46.     Vail  v.  Broadway 


R.  Co.,  6  Misc.  20,  26  N.  Y.  Supp.  59,  58 
A'.  Y.  S.  R.  124. 

420.  Going  to  platform  for  pur- 
pose of  leaving  car. —A  passenger  in  a 
street-car,  after  signaling  to  the  conductor 
to  stop  the  car,  left  his  seat  and  stood  for  a 
moment,  while  the  car  was  in  motion,  on 
the  rear  platform,  expecting  that  the  car 
would  stop  so  that  he  could  alight. 
Although  an  accumulation  of  snow  and  ice 
rendered  the  platform  slippery,  he  omitted 
to  take  hold  of  the  rail.  The  car  jolted, 
and  he  was  thrown  off.  Held,  that  whether 
he  was  guilty  of  such  negligence  as  to  pre- 
clude his  maintaining  an  action  for  the 
injuries  thereby  received  was  a  question  for 
the  jury,  and  not  of  law  for  the  court. 
Fleck  v.  Union  R.  Co.,  16  Am.  &>  Eng.  R. 
Cas.  372,  134  Mass.  480.— Distinguishing 
Wills  V.  Lynn  &  B.  R.  Co.,  129  Mass.  351. 
Following  Treat  v.  Boston  &  L.  R.  Corp., 
131  Mass.  371. 

The  car  on  which  plaintiff  rode  was  an 
open  one,  having  seats  crosswise,  and  on 
either  side  a  platform  on  which  persons 
stepped  in  entering  or  leaving  the  car.  At 
the  end  of  each  seat  was  an  upright  pro- 
vided with  a  handhold.  Plaintiff  testified 
that  on  entering  the  car  she  informed  the 
conductor  that  she  wished  to  alight  at  a 
certain  street,  to  which  he  answered  "  Yes, 
ma'am " ;  that  when  the  car  reached  the 
street,  she  rang  the  bell ;  that  the  gripman 
applied  the  brake  and  brought  the  car 
almost  to  a  standstill ;  that,  thinking  every 
instant  it  would  stop — without  using  the 
handhold — she  stepped  to  the  platform, 
preparatory  to  stepping  to  the  street  when 
the  car  came  to  a  full  stop,  and  while  in  that 
position,  and  seen  by  the  gripman,  he  re- 
leased the  brake,  and  suddenly  accelerated 
the  speed,  with  a  jerk  which  threw  plaintiff 
to  the  street.  Held;  (i)  that  whether  plain- 
tiff was  guilty  of  contributory  negligence  in 
stepping  to  the  platform  of  the  car  while  it 
was  in  motion,  and  in  not  using  the  hand- 
holds, were  questions  for  the  jury ;  (2)  that 
the  jury's  finding  that  plaintiff  was  thrown 
from  the  platform  by  the  cause  and  in  the 
manner  she  testified  would  not  be  set  aside, 
as  not  supported  by  the  evidence,  because 
two  witnesses  testified  that  she  stepped  from 
the  platform  to  the  street,  nor  because  two 
witnesses  swore  there  was  no  sudden  accel- 
eration of  the  speed  of  the  car,  and  three 
witnesses  swore  that  they  did  not  observe 
any.     Omaha  St,  R.  Co.  v.  Crai^,  58  Am^ 


u 


ffi'!-; 


II 


n,-  1 


Ift  ■  'i 


;  i  I 


i:J 


500 


STREET   RAILWAYS,  421-423. 


*•  £>!f,  Jt.  Cas.  2o8,  39  AV*.  601,  58  N.  IV. 
Rep.  209. 

421.  RldliiK  on  car  step.— If  a  pas- 
senger merely  uses  the  step  for  the  pur- 
pose of  ascending  into  the  car,  he  is 
where  he  has  a  right  to  be;  and  if  he  stand 
upon  the  step  too  long,  it  cannot  be  said 
that  he  is  thereby  such  a  trespasser  as  to 
relieve  the  company  from  any  liability  other 
than  that  fur  a  wilful  injury.  The  mere 
fact  of  riding  on  a  platform  of  a  street-car 
is  not  conclusive  proof  of  negligence.  North 
Chicago  St,  R.  Co.  v.  IVilliaiiis,  52  Am.  &• 
Eng.  R.  Cas.  522,  140  ///.  275,  29  A'.  E.  Rep. 
672 ;  affirmittg  40  ///.  App.  590. 

A  passenger  on  a  streetcar  who,  on  the 
invitation  of  a  person  in  charge,  or  without 
objection  from  him,  stands  on  the  step  of 
the  car  outside  of  a  gate  is  not  negligent 
per  se,  as  the  danger  of  such  a  position  is 
not  so  obvious  that  it  could  be  said  that  a 
reasonable  man  would  disobey  the  invita« 
tion  or  direction.  Seymour  v.  Citizens'  R. 
Co.,  sS  Am.  <S-  Eng.  R.  Cas,  395,  114  Mo. 
266,21  5.  W.  Rep.Ty). 

Where  a  passenger  knew,  from  passing 
it  daily  on  his  way  to  work,  that  a  derrick 
was  in  use  near  the  track,  but  did  not  know 
that  the  track  had  been  moved  toward  it  on 
the  morning  of  the  day  of  the  accident,  and 
he  was  struck  by  it  while  riding  on  the  step 
of  the  car,  he  is  not  guilty  of  contributory 
negligence  as  a  matter  of  law.  Seymour  v. 
Citizens'  R.  Co.,  58  Am.  &*  Eng.  R.  Cas.  395, 
114  Afo.  266,  21  S.  IV.  Rep.  739. 

That  riding  upon  the  steps  of  a  street-car 
is  less  safe  than  a  scat  inside  requires  no 
proof;  it  is  obviously  so.  Ashbrook  v. 
Frederick  Ave.  R.  Co.,  18  Mo.  App.  290. — 
Quoting  Clark  v.  Eighth  Ave.  R.  Co.,  36 
N.  Y.  137. 

Plaintiff  mounted  the  step  of  a  moving 
car,  and,  instead  of  passing  within,  remained 
on  the  step  and  was  struck  therefrom  by  a 
standing  post,  with  the  position  of  which  he 
was  familiar.  Held,  that  he  was  guilty  of 
contributory  negligence.  Aikin  v.  Frank- 
ford  &-  5.  P.  City  Pass.  R.  Co.,  142  Pa.  St. 
47,  21  Atl.  Rep.  781. 

Although  the  testimony  as  to  whether  the 
platform  was  so  crowded  that  he  could  not 
enter  the  car  where  there  was  abundant 
room  was  contradictory,  yet  it  was  not 
error  to  instruct  the  jury  to  return  a  verdict 
for  defendant.  Aikin  v.  Frank/ord  &*  S.  P. 
City  Pass.  R.  Co.,  142  Pa.  St.  47,  21  Atl. 
R*p.  781. 


Plaintiff,  while  standing  on  the  platform 
or  step  of  a  street-cur,  was  njured  by  a 
passing  load  of  wood.  The  immediate 
cause  of  the  accident  was  the  conductor's 
want  of  vigilance  in  failing  to  stop  the  car, 
as  he  might  have  done  in  time  to  prevent 
the  collision.  Held,  that  the  company  was 
responsible.  The  fact  that  plaintiif  was 
standing  on  the  platform  did  not  relieve 
defendant  from  responsibility,  inasmuch  as 
he  was  permitted  to  siand  there  by  the  con- 
ductor, who  iiad  collected  fare  from  him 
while  he  was  in  that  position.  Wilscam  v. 
Montreal  St.  R.  Co.,  ^  Montr.  Super.  193; 
affirmed  in  5  Montr.  L.  R.  340. 

422.  ai;tilu8t  rule  of  company. 

— It  is  proper  to  refuse  to  charge  that,  if 
plaintiff  wilfully  violated  a  rule  of  the  com- 
pany, and  rode  on  the  step  while  the  car 
was  in  motion,  and  was  injured  in  conse- 
quence, he  cannot  recover,  where  there  is 
no  evidence  of  any  wilful  violation  of  the 
rule.  Medler  v.  Atlantic  Ave.  R.  Co.,  36  A'^ 
Y.S.  R.  89,  12  A'.  Y.  Supp.  930;  affirmed  in 
126  A'^.  Y.  669,  mem.,  37  A'^.  Y.  S.  R.  963.  27 
A^.  E.  Rep.  854. 

42!).  Goinjir  to  step  for  piirpoHO  of 
leaviutf  car. — When  a  passenger  is  on  tlie 
step  of  a  car  and  about  to  alight,  and  the 
conductor  fails  to  observe  whether  or  not 
he  has  alighted,  or,  knoning  that  he  has 
not,  negligently  starts  thecal  too  soon,  thus 
throwing  the  passenger  to  the  ground,  con- 
tributory negligence  is  not  chargeable  to 
him  from  the  fact  of  his  being  on  the  step. 
Washit^ton  &*  G.  R.  Co.  v.  Harmon,  58  Am. 
&*  Eng.  R.  Cas.  380,  147  C/.  5.  571,  13  Sup. 
Ct.  Rep.  557. 

If  a  passenger,  for  the  purpose  of  alight- 
ing, gets  upon  the  step  while  the  car  is  slow- 
ing, but,  instead  of  stopping,  it  suddenly 
starts  again  with  a  jerk  by  reason  of  which 
the  passenger  is  thrown  from  the  car  and 
injured,  he  is  not  to  be  charged  with  con- 
tributory negligence  by  being  upon  the 
step  while  the  car  was  in  motion,  for  he 
had  a  right  to  anticipate  that  the  car  would 
stop,  and  there  was,  in  contemplation  of 
law,  no  risk  that  the  car  would  start  again, 
either  with  a  sudden  jerk  or  otherwise, 
until  he  had  alighted.  Harmon  v.  Washing- 
ton <S-  G.  R.  Co.,  jMackey  {D.  C.)  255. 

A  declaration  against  a  street-railway 
company  which  alleges  that  plaintiff,  a 
passenger,  requested  the  car  to  be  stopped, 
and,  in  the  confident  belief  that  it  would  be, 
got  upon  the  lower  step  of  the  rear  platform 


STREET   RAILWAYS,  424-426. 


601 


orm 

by  a 

liate 

or's 

car, 

vent 

wus 

was 

lieve 

us 

con- 

hini 

fn  V. 

'93; 


to  be  in  poiltion  to  alight,  wiien  he  was,  by 
the  negligence  of  the  driver,  thrown  from 
the  car  and  injured,  is  not  demurrable  as 
showing  contributory  negligence.  Bowit  v. 
Greenvilli  St.  R.  Co.,  69  Miss.  196,  10  Sv. 
Rtp.  574- 

Plaintiff  was  riding  on  a  street-car,  carry- 
ing a  bundle  of  carpenter's  tools.  When 
near  his  place  to  alight  he  stepped  to  the 
running  step  at  the  side  of  the  car,  and 
while  reaching  over  for  his  tools  was  struck 
by  the  hub  of  a  wagon  on  the  street.  There 
was  barely  room  for  the  car  to  pass  the 
wagon,  which  lapped  considerably  over  the 
car  step.  There  was  a  conflict  of  evidence 
as  to  whether  plaintiff  had  warning,  and  also 
as  to  the  speed  of  the  car.  Held,  that  the 
questions  of  negligence  and  of  contributory 
negligence  were  properly  left  to  the  jury. 
BUier  v.  Bushwick  R.  Co.,  9  A^.   Y.  S.  R.  706. 

Shortly  before  reaching  the  place  where 
plaintiff  would  leave  the  car,  he  stepped  to 
the  lower  step,  while  the  car  was  running 
about  six  miles  an  hour,  and  stood  there 
without  taking  hold  of  the  car  with  either 
hand,  until  there  w<is  a  sudden  jerk,  when 
he  attempted  to  take  hold  of  the  rod  at  the 
corner  of  the  car  and  sit  down,  but  failed 
to  do  so,  and  was  thrown  to  the  ground. 
Ne/d,  that  the  evidence  as  to  contributory 
negligence  was  sufficient  to  sustain  a  verdict 
for  defendant.  Tanner  v.  Buffalo  R.  Co., 
25  A^.  Y.  Supp.  242,  72  Hun  465,  54  A^.  Y. 
S.  R.  776. — Applying  Coleman  v.  Second 
Ave.  R.  Co.,  114  N.  Y.  609.  21  N.  E. 
Rep.  1064. 

In  such  case  the  court  instructed  the  jury 
that  "  if  plaintiff  voluntarily  and  unnecessa- 
rily placed  himself  on  the  step  outside  the 
car,  before  it  came  to  a  stop, and  while  going 
at  the  rate  of  six  miles  an  hour,  whereby 
his  injury  was  made  possible,  then  he  can- 
not recover."  Held,  that  the  instruction 
was  correct,  as  applied  to  the  case,  the 
question  being  left  to  the  jury  to  say  whether 
the  conduct  of  plaintiff  was  negligence  or 
not,  and  the  instruction  not  excluding  the 
question  of  contributory  negligence.  Tan- 
ner V.  Buffalo  R.  Co.,  25  A^  Y.  Supp.  242, 
72  Hun  465,  54  N.  Y.  S.  R.  776. 

424. to  allow  other  passengers 

to  enter. — Plaintiff's  evidence  was  to  the 
effect  that  he  went  upon  defendant's  street- 
car and  stood  upon  the  front  platform, 
although  there  were  vacant  seats  inside. 
The  car  stopped  to  receive  other  passen- 
gers, who  entered  by  the  front  platform  ;  to 


facilitate  their  entry,  plaintiff  stepped  down 
upon  the  front  step ;  as  he  was  stepping  up 
again,  as  he  testified,  "the  car  gave  a  sud* 
den  movement  and  pulled  up,"  and  he  wai 
thrown  off  and  injured.  It  appeared  that, 
after  starting,  the  car  did  not  stop  until 
after  the  accident.  Held,  that  the  evidence 
failed  to  show  any  negligence  on  defendant's 
part,  and  that  a  refusal  to  nonsuit  was  error. 
Hayes  v.  Forty-second  St.  &*  G.  S.  F.  R.  Co., 
21  Am.  &•  Eng.  R.  Cas.  358,  97  N.  Y.  259; 
reversing  (?)  26  Hun  534.  — DISTINGUISHED 
IN  Morrison  v.  Broadway  &  S.  A.  R.  Co., 
130  N.  Y.  166,  28  N.  Y.  S.  R.  498.  8  N.  Y. 
Supp.  436;  Medler  v.  Atlantic  Ave.  R. 
Co.,  36  N.  Y.  S.  R.  89,  12  N.  Y.  Supp.  930, 
Quoted  in  De  Soucey  v.  Manhattan  R. 
Co.,  39  N.  Y.  S.  R.  79.  15  N.  Y.  Supp.  108. 

42S.  Right  of  passenger  to  pre- 
pare to  leave  car.  —  Failure  of  plaintiff 
to  notify  the  conductor  that  she  wished  to 
leave  the  car  is  a  matter  of  no  consequence, 
where  it  appears  that  her  injury  was  caused 
by  the  starting  of  the  car  while  she  was  in 
the  act  of  descending.  Wlieaton  v.  North 
Beach  <S-  M.  R.  Co.,  36  Cal.  590. 

While  it  is  a  reasonable  safeguard  against 
accidents  to  forbid  departure  from  a  car 
while  it  is  in  motion,  a  passenger  on  the 
upper  floor  of  a  horse-car  does  not  violate 
this  regulation  in  walking,  the  car  being  in 
motion,  toward  the  rear  end  for  the  purpose 
of  descending  to  the  lowei  •^''"form.  Balti- 
more &■>  Y.  Turnpike  Roa  l^onhardt,  27 
Am.  &*  Eng.  R.  Cas.  194  .VId.  70,  5  Atl. 
Rep.  346. 

Though  passengers  have  no  right  to  jump 
off  horse-cars  while  in  motion,  or  to  make 
an  attempt  to  do  so,  yet  they  are  authorized 
to  prepare  to  leave  when  there  is  evidence 
of  an  intention  to  stop,  or  any  signal  given 
for  such  a  purpose.  The  mere  preparation 
to  leave  a  car,  while  it  is  in  motion,  is  not 
of  itself  negligence.  Nichols  v.  Sixth  Ave. 
R.  Co.,  38  A^.  K.  131  ;  affirming  10  Bosw.  260. 
— Applied  in  Morrison  v.  Erie  R.  Co.,  56 
N.  Y.  302.  Followed  in  Gainard  v. 
Rochester  City  &  B.  R.  Co.,  18  N.  Y.  S.  R. 
692,  2  N.  Y.  Supp.  470.  Quoted  in  Col- 
well  V.  Manhattan  R.  Co.,  S7  Hun  452,  33 
N.  Y.  S.  R.  991,  10  N.  Y.  Supp.  636. 

420.  Riding  on  foot  board  on  side 
of  open  car.— Plaintiff  stood  on  the  step 
running  along  the  entire  length  of  a  horse- 
car,  and  the  driver  of  another  car  belong- 
ing to  defendant  drove  his  horses  against 
plaintiff,  knocking  him  off  and  injuring  him. 


502 


I 


STREET   RAILWAYS,  427-480. 


m 


III.; 


rli'l:! 


It  appeared  that  all  the  teats  were  occupied 
and  the  rear  platform  was  crowded.  Nttd, 
that  in  standing  upon  the  step  plaintif!  was 
not  guilty  of  contributory  negligence  as 
matter  of  law,  but  it  was  properly  submitted 
to  the  jury.  Bruno  v.  Brooklyn  City  N.  Co., 
5  Misc.  327,  25  A'.  Y.  Supp.  507,  55  A'.  Y, 
S./t.  21$. 

A  person  who  voluntarily  undertakes  to 
pass  along  the  side  of  an  open  street-car  on 
the  side  step  cannot  recover  against  the 
company  for  an  injury  received  by  coming 
in  contact  with  the  support  or  pillar  of  an 
elevated  railroad.  Vroman  v.  Houston,  W, 
S.  &•  P.  F.  K.  Co.,  27  A^.  Y.  Supp.  257,  57 
A'.  Y.  S.  y?.  871,  mem.,  7  Misc.  234. 

Though  there  is  some  peril  attendant 
upon  riding  on  the  foot  board  of  a  horse- 
car,  it  is  not  negligence  ptr  se.  Geita  v. 
Mihuauket  City  Ji.  Co.,  72  Wis.  307,  39  N. 
IV.  Rep.  866.— Quoted  in  Seymour  v.  Citi- 
zens' R.  Co.,  114  Mo.  266. 

427>  wiion  tlio  car  is  crowded. 

— PlaintifT  was  a  passenger  on  an  open  car 
on  which  there  was  only  standing  room  on 
the  foot  board  along  the  outside  of  the  car. 
Other  passengers  occupied  this  foot  board 
besides  plaintiff.  At  the  point  where  plain- 
tiff embarked  there  was  only  a  single  track. 
Further  on,  where  the  track  was  double,  a 
car  of  like  form,  carrying  passengers  upon 
the  foot  board,  passed  the  car  upon  which 
plaintiff  was,  but  the  space  between  the  cars 
was  not  sufficient  to  allow  them  to  pass 
with  safety  when  persons  were  standing 
upon  the  foot  boards  of  both  cars,  and 
plaintiff  was  injured  by  coming  in  contact 
with  a  passenger  standing  on  the  foot  board 
of  the  other  car.  Plaintiff  was  not  familiar 
with  the  construction  of  the  road.  Held, 
that  there  was  no  evidence  justifying  a  non- 
suit on  the  ground  of  contributory  negli« 
gence.  City  R.  Co,  v.  Lee,  34  Am.  &>  Eng. 
R.  Cas.  566,  50  N.  J.  L.  43S,  7  Am.  St.  Rep. 
798,  14  Atl.  Rep.  883.  13  Cent.  Rep.  273.— 
Reviewed  in  Seymour  v.  Citizens'  R.  Co., 
114  Mo.  266. 

Where  a  company  runs  a  vehicle,  provided 
with  foot  boards  with  guards  on  the  sides, 
where  passengers  usually  ride  when  all  the 
seats  inside  are  taken,  a  passenger  who  thus 
rides  when  there  is  no  seat  accessible  to  him, 
and  pays  his  fare,  without  objection  from 
those  in  charge,  is  not  thereby  guilty  of 
negligence  per  se,  but  the  question  of  neg- 
ligence is  for  the  jury.  Spooner  v.  Brooklyn 
City  R.  Co.,  54  A^  Y.  230,  6  Am.  Ry.  Rep. 


198  ;  reversing  36  Barb.  217,  31  Barb.  419.— 
Qi;oTED  IN  Blackmore  v.  Toronto  St.  R. 

Co.,  38  u.  c.  g.  n.  172. 

Where  a  passenger  is  compelled  by  the 
crowded  condition  of  the  car  to  stand 
upon  the  foot  board,  it  being  a  common 
thing  for  passengers  upon  defendant's  cars 
to  ride  in  that  way,  he  is  not  guilty  of  neg- 
ligence contributing  to  injuries  received  by 
being  struck  by  «  heavy  plank  which  pro- 
jected a  few  feet  above  tlie  roadbed.  CogS' 
well  V.  West  St.  &*  N.  E.  Elec.  R.  Co.,  52 
Am.  &-  Eng.  R.  Cas.  500,  5  Wash.  46,  31 
Pac.  Rep.  411. 

428.  when  there  Is  room  in- 
side.—Plaintiff  was  injured  by  a  collision 
while  riding  on  the  foot  board  of  an  open 
street-car.  The  jury  found  that  there  was 
room  inside,  that  plaintiff  knew  he  was  in  a 
dangerous  place,  and  that  he  was  guilty  of 
negligence  contributing  to  the  injury.  Held, 
that  he  could  not  recover,  the  negligence 
of  the  carrier  not  being  gross  or  wilful. 
Schoenfeld  v.  Milwaukee  City  R.  Co.,  74  Wis. 
433.  43  N.  W.  Rep.  162. 

420.  Ridinir  on  driving  bar.  —  It 
is  contributory  negligence  for  a  passenger 
of  ordinary  common  sense  to  sit  on  the 
driving  bar  of  a  street-car,  even  at  the 
driver's  invitation,  if  there  is  room  for  him 
inside  the  car.  Downey  v.  Hendrie,  8  Am. 
&*  Eng.  R.  Cas.  386,  46  Mich.  498,  9  A',  W. 
Rep.  878,  41  Am.  Rep.  347,  ». 

/.  When  Question  of  Negligence  for 
Jury — Nonsuit. 

430.  When  case  should  go  to  Jury. 

— Where  a  company  is  sued  by  a  passenger 
to  recover  for  personal  injuries,  and  con- 
tributory negligence  is  relied  upon  as  a  de- 
fense, and  there  is  some  evidence  to  estab- 
lish it,  an  instruction  is  erroneous  which  in 
effect  tells  the  jury  that  before  they  can 
find  for  defendant  they  must  find  that  such 
contributory  negligence  was  the  sole  cause 
of  the  injury.  Central  Pass.  R.  Co.  v.  Ste- 
vens, (Ky.)  22  5.   W.  Rep.  312. 

It  is  a  matter  of  right  in  the  plaintiff  to 
have  the  issue  of  negligence  submitted  to 
the  jury,  when  it  depends  upon  conflicting 
evidence,  or  on  inferences  to  be  deduced 
from  a  variety  of  circumstances,  in  regard 
to  which  there  is  room  for  fair  difference  of 
opinion  among  intelligent  men.  Wolfkiel 
V.  Sixth  Ave.  R.  Co.,  38  N.  Y.  49.— Follow- 
ing Ernst  7/.  Hudson  River  R.  Co.,  35  N, 


STREET   RAILWAYS,  431. 


608 


9-- 
R. 

the 
land 
mon 
cars 
neg. 

by 
pro- 
7cgs- 

53 

31 


Y.  lo.— FOLLOWID  IN  Tinker  v.  New  York, 
O.  A  W.  R.  Co..  71  Hun  (N.  Y.)  431—^'*'' 
V.  Sltinway  &*  H.  P.  R.  Co.,  ii8N.  K,  SS^. 
23  A^.  E.  Rtp.  889.  30  A'.  K.  S.  R.\\  affirm- 
ing 44  Hun  627,  mtm.,  8  A'.  Y.  S.  R.  813.— 
DlSTiNGUlSHlNO  Putnam  v.  Broadway  &  S. 
A.  R.  Co.,  5S  N.  Y.  108.— QuoTKD  in  Griffith 
V.  Utica  &  M.  R.  Co.,  43  N.  Y.  S.  R.  835  j 
Norris  v.  Brooklyn  City  R.  Co.,  4  Misc. 
(N.  y.)  294. 

Plaintiff  and  her  daughter  testified  that 
tliey  botii  entered  a  car  and  told  the  con- 
ductor that  plaintifT  was  not  a  passenger, 
and  that  she  turned  at  once  to  leave  the 
car,  and  as  she  was  stepping  from  the  plat- 
form to  the  street  the  conductor  rang  the 
bell  which  caused  the  car  to  move  forward 
and  threw  her  down.  There  was  other  evi- 
dence as  to  the  place  where  the  conductor 
stood  and  the  direction  in  which  he  was 
looking,  which  might  tend  to  negative  neg- 
ligence. HtU,  that  the  case  should  have 
been  left  to  the  jury.  Rotl  v.  Forty-second 
St.  6-  G.  S.  F.  R.  Co..  24/.  &*  S.  151,  I  N. 
Y.  Supp.  S\%. 

A  street-car  ran  oiT  the  track  and  threw 
a  female  passenger,  who  was  tnciente,  to  the 
floor,  causing,  as  she  claimed,  a  miscarriage. 
She  testified  that  prior  thereto  she  had  been 
in  good  health.  The  company  denied  this, 
and  produced  evidence  that  she  had  been 
treated  for  viirious  diseases  for  twenty 
years.  Held,  that  it  was  properly  left  to  the 
jury  to  determine  the  condition  of  plaintiff's 
iiealth  at  the  time  of  the  accident.  Read' 
iitfT  City  Pass.  R.  Co.  v.  Eekert,  (Pa.)  4  At/. 
Rep.  530. 

431.  When  defendant's  nefflifirence 
is  properly  left  to  Jury.  —  Plaintifl  was 
■A  passenger  on  a  street-car  which  crossed  a 
drawbridge,  and  was  injured  by  the  falling 
o(  the  key  which  was  used  in  opening  the 
l)ridge.  PlaintifT  claimed  that  the  driver 
was  going  at  an  undue  rate  of  speed,  which 
caused  the  bridge  to  oscillate  and  the  key  to 
fall ;  but  the  evidence  of  the  rate  of  speed 
was  somewhat  conflicting,  and  the  driver 
admitted  that  he  had  been  afraid  for  some 
time  of  an  accident.  Held,  that  the  ques- 
tion of  defendant's  negligence  was  properly 
left  to  the  jury.  Catalanotto  v.  Coney  Island 
a-  B.  R.  Co.,  rj  N.  Y.  S.  R.  47,  7  N.  Y. 
Supp.  628. 

A  street-car  was  going  down  grade  at  the 
rate  of  seven  miles  an  hour,  with  plaintifl 
and  others  on  the  platform,  when  the  driver 
suddenly,  and  without  any  apparent  reason. 


applied  the  brake  with  such  force  as  to  give 
the  car  a  jerk  which  threw  plaintifl  off.  Held, 
that  the  question  of  negligence  was  properly 
left  to  the  jury.  Murray  v.  Brooklyn  City  R. 
Co.,  27  A'.  Y.  S.  R.  380,  7  A'.  Y.  Supp.  900. 

Plaintiff  was  riding  on  the  platform  of  a 
■treet-car,  and  as  it  approached  the  crossing 
of  the  track  of  another  company  a  car  was 
approaching  thereon  on  a  down  grade  at 
about  twice  its  usual  speed,  the  brake  being 
out  of  order  and  the  driver  unable  to  control 
it.  As  they  approached  he  shouted  to  the 
driver  of  the  car  on  which  plaintifT  was  rid- 
ing, who  whipped  up  his  horses  with  the 
view  of  crossing  the  track  in  front  of  the 
other  car,  but  the  two  cars  collided  and 
plaintifT  was  injured.  Held,  that  the  ques* 
tion  of  the  negligence  of  both  companies 
was  properly  left  to  the  jury.  Schneider  v. 
Second  Ave.  R.  Co.,  39  A^.  Y.  S.  R.  370,  15 
//.  Y.  .Supp.  556,27/  &*  S.  536 ;  affirmed  in 
133  A^.  Y.  583, 44  A^.  Y.  S.  R.  680.  30  A^.  E. 
Kep.  752.— Reviewing  Palmer  v.  Delaware 
&  H.  Can.il  Co.,  120  N.  Y.  170,  30  N.  Y.  S. 
R,  817. 

PlaintifT  was  injured  by  a  street-car  leav- 
ing the  track  in  passing  a  curve.  There 
was  evidence  for  the  plaintifT  that  the  driver 
was  looking  at  some  quarreling  boys  in  the 
street  at  the  time,  and  not  giving  his  atten- 
tion to  the  horse,  which  tended  to  support 
plaintifT's  theory  that  the  car  left  the  track 
for  want  of  proper  guidance  of  the  horse. 
The  company  proved  that  its  track  was 
constructed  in  the  best  manner,  and  in  good 
condition,  but  no  explanation  was  given  as 
to  the  cause  of  the  accident.  Held,  that  the 
question  of  the  company's  negligence  was 
properly  left  to  the  jury.  Pollock  v.  Brook- 
lyn &*  C.  T.  R.  Co.,  39  N.  Y.  S.  R.  568,  60 
Hun  584,  15  iV.  Y.  Supp.  189;  affirmed  in 
133  N.  Y.  624,  mem.,  30  A^  E.  Rep.  1150,  44 
A^.  Y.  S.  R.  932. 

PlaintifT  gave  up  his  seat  to  a  lady  and 
stood  with  one  foot  in  the  car  and  the  other 
on  the  platform,  which  was  crowded,  some  of 
the  passengers  standing  on  the  guard  rail. 
The  platform  gave  way  and  injured  plaintifl. 
The  car  had  been  in  use  twelve  years ;  there 
was  an  unusual  number  of  passengers,  and 
the  conductor  did  not  use  proper  efforts  to 
prevent  them  from  getting  on.  Held,  that 
the  question  of  defendant's  negligence  was 
properly  left  to  the  jury.  Norris  v.  Brook- 
lyn City  R.  Co..  53  A^.  Y.  S.  R.  332.— QUOT- 
ING Lehr  v.  Steinway  &  H.  P.  R.  Co.,  118 
N.  y.  556.  30  N.  Y.  S.  R.  I. 


504 


STREET   RAILWAYS,  433,  433. 


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432.  When  contributory  negli- 
S^ence  l8  properly  left  to  jury.— Where 

the  evidence  shows  that  plaintiff  wa»  injured 
while  alighting  from  a  car,  but  is  conflicting 
as  to  the  side  of  the  street  on  which  the  car 
was  stopped,  one  side  only  being  a  lawful 
stopping  place  ;  and  that  the  conductor  was 
not  in  his  place  at  the  time,  and  that  the 
trai.:  stopped  in  the  street  in  apparent  re- 
sponse to  a  pull  of  the  bell  by  plaintiff,  and 
she  had  reasonable  ground  to  believe  that 
it  stopped  for  the  purpose  of  allowing  her 
to  alight,  although  it  had  not  reached  the 
proper  stopping  place ;  the  question  of  con- 
tributory negligence  ve/  twn  is  properly  left 
to  the  jury.  North  Birmingliam  St.  R.  Co. 
V.  Calderwood,  89  Ala.  247,  7  So.  Rep.  360. — 
Applied  in  Highland  Ave.  &  B.  R,  Co.  v. 
Burt,  92  Ala.  291. 

Where  the  company  is  in  default  for 
not  giving  proper  warning,  the  questions 
whether  the  deceased  was  guilty  of  contrib- 
utory negligence  in  passing  the  street  cross- 
ing, and  whether  his  negli;,rence  was  the 
proximate  cause  of  the  injuiy,  are  of  fact 
for  the  jury ;  and  where  there  is  a  conflict 
of  evidence  as  to  the  actual  conduct  of  the 
deceased,  and  the  circumstances  under 
which  he  acted,  and  there  is  sufficient  evi- 
dence to  warrant  the  jury  in  finding  that 
deceased  was  not  negligent,  a  verdict 
against  the  company  will  not  be  disturbed 
upon  appeal.  Driscoll  v.  Market  St.  Cable 
R.  Co.,  97  Cal.  553,  32  Pac.  Rep.  591. 

The  court  instructed  the  jury  that  in 
order  to  recover  plaintifl  must  be  free  froai 
neglige'  whicii  contributed  to  the  injury  ; 
but  furt>:<  r  on  said  that  the  evidence  fairly 
established  the  fact  that  plaintiff  was  not 
guilty  of  contributory  negligence,  and  went 
on  to  give  reasons,  based  upon  the  evidence, 
why  ;  but  before  leaving  the  question  said, 
"  If  this  be  answered  in  the  aflirmative.  then 
you  come  to  the  next  question,"  which  was 
that  of  defendant's  negligence.  Held,  that 
this  was  but  the  expression  of  an  opinion, 
and  did  not  take  the  question  of  contribu- 
tory negligence  from  the  jury.  Griffith  v. 
Utica  &*  M.  R.  Co.,  43  A^.  Y.  S.  R.  835.  63 
Nun  626,  17  N.  V.  Supp.  692;  affirmed  in 
137  A^.  Y.  566,  mem.,  50  N.  Y.  S.  R.  933.  33 
A^.  E.  Rep.  339.— Quoting  Massoth  v.  Dela- 
ware &  H.  Canal  Co.,  64  N.  Y.  524;  Bowen 
V.  New  York  C.  R.  Co.,  18  N.  Y.  41 1 ;  Deyo 
V.  New  York  C.  R.* Co.,  34  N.  Y.  1 1. 

433.  Sufficiency  of  evidence  to 
Bupport  verdict. —  Plaintid  sued  for  an 


injury  sustained,  which,  as  she  and  nobody 
else  testified,  occurred  by  the  starting  of  a 
car  while  she  was  in  the  act  of  stepping  off, 
after  it  had  stopped  on  her  signal.  The  car 
was  south  bound  ;  the  place  where  she  said 
it  stopped,  the  north  line  of  a  street  coming 
to  but  not  crossing  the  street  on  which  the 
car  ran.  There  was  a  conflict  among  other 
witnesses  whether  the  car  stopped  at  the 
south  line  of  the  cross  street,  but  none  that 
it  did  not  stop  at  the  north  line,  and  that 
plaintiff  got  of!  and  fell  while  the  car  was  in 
motion.  To  this  manner  of  the  accident  the 
driver,  conductor,  and  two  passengers  testi- 
fied. Held,  that  a  judgment  for  plaintiff  must 
be  reversed,  as  being  contrary  to  evidence. 
North  Chicago  St.  R.  Co.  v.  Lotz,  44  ///. 
App.  78. 

In  an  action  for  personal  injuries  received 
while  alighting  from  a  street-car,  it  was  as- 
sumed that  the  fair  construction  of  the  tes- 
timony of  defendant's  witnesses  was  that  in 
slowing  up  and  coming  to  a  stop  the  car 
made  no  sudden  start  forward  ;  but  plaintiff 
testified  that  the  car  did  make  a  sudden 
start  just  as  she  put  her  foot  to  the  ground. 
Held,  that  if  the  jury  believed  her  state- 
ment, and  also  believed  the  testimony  of 
defendant's  witnesses  that  plaintiff  got  off 
while  the  car  was  slowing  up  and  before 
it  had  stopped,  they  would  properly  find 
that  she  was  injured  by  the  sudden  start- 
ing of  the  car  after  it  had  begun  to  slow  up, 
and  before  it  had  come  to  a  full  stop,  and 
that,  although  no  witnesses  had  testified 
that  while  the  car  was  coming  to  a  stop  it 
was  started  up  with  a  jerk,  there  was  evi- 
dence from  which  the  jury  could  find  that 
such  was  the  fact.  Hill  v.  West  End  St.  R. 
Co.,  1 58  Mass.  458,  33  A'^,  E.  Rep.  582. 

Piaintifl's  uncorroborated  testimony  that 
he  fell  from  a  car,  caused  by  its  suddenly 
starting  while  he  was  in  the  act  of  alighting, 
was  contradicted  by  his  account  of  the  acci- 
dent, made  under  oath  to  the  company  soon 
after  the  accident,  in  which  he  stated  that 
he  stepped  off  while  the  car  was  in  motion, 
and  also  by  the  conductor's  written  report, 
made  at  the  time,  and  by  the  testimony  of  a 
number  of  other  witnesses.  Held,  that  a 
verdict  for  plaintiff  should  be  set  aside  as 
against  the  evidence.  Shultz  v.  Third  Ave. 
R.  Co.,  IS  Z?<i^95,  2  A^.  Y.  Supp.  693,  19  A'. 
Y.  S.  R.  917.— Applying  Molloy  v.  New 
York  C.  &  H.  R.  R.  Co.,  10  Daly  453  ;  Mc- 
Carthy V.  Christopher  &  T.  St.  R.  Co.,  10 
Daly  540. 


STREET  RAILWAYS,  434,  435. 


SOS 


Plaintiff  was  injured  by  the  car  in  which 
he  was  riding  colliding  with  a  furniture  van. 
Defendant's  horses  were  driven  rapidly,  and 
the  collision  occurred  by  the  car  hitting  the 
rear  end  of  the  van  as  it  was  leaving  the 
track,  and  seemed  to  be  caused  solely  be- 
cause the  driver  would  not  slacken  his 
speed  so  as  to  permit  the  van  to  pass  over 
the  track.  Plaintiff  was  riding  in  the  car 
with  the  window  open,  and  his  arm  resting 
on  the  sill  of  the  same,  but  entirely  within 
the  car.  Held,  that  a  verdict  for  plaintiff 
was  sustained  by  the  evidence.  Franklin  v. 
Forty-ucond  St.  <S-  G.  S.  F.  Ji.  Co.,  21  N.  Y. 
S.  K.  944,  3  N.  V.  Supp.  229,  50  Hun  605, 
mem.;  affirmed  in  121  N.  V.  673,  mem.,  24 
N.  E.  Rep.  1095,  mem. 

Plaintiff  testified  that  while  standing  be- 
tween tracks  waiting  for  a  car,  with  a  baby 
in  her  arms  and  a  little  girl  beside  her,  two 
cars  approached,  one  of  them  very  swiftly ; 
that  she  motioned  the  driver  to  stop,  but  he 
did  not  do  so,  and  she  was  knocked  down 
and  injured.  Defendant  offered  evidence 
that  both  cars  came  to  a  stop  and  that  plain- 
tiff, in  crossing  the  track,  ran  into  the  car, 
and  was  thus  injured.  Held,  that  a  verdict 
for  plaintiff  was  supported  by  her  testimony, 
and  would  not  be  disturbed.  O' Toole  v. 
Central  Park.  N.  &*  E.  R.  R.  Co.,  t2  N.  V. 
Supp.  347.  35  ^-  y-  S.  R.  591.  58  ffu»  609. 
mem. ;  affirmed  in  1 28  N.  Y.  597,  mem.,  28 
A^.  E.  Rep.  251,  mem. 

434.  Evidence  not  sufficient  to 
sliow  negligence.* — Plaintiff  was  riding 
in  defendant's  street-car;  a  wagon  loaded 
with  lumber  was  moving  in  the  oppo- 
site direction,  using  the  rails  of  another 
track.  The  driver  of  the  wagon,  after 
it  had  passed  the  driver  of  the  street-car 
and  when  it  was  abreast  of  the  car,  suddenly 
turned  off  the  track  ;  the  lumber  which  pro- 
jectc  J  beyond  the  wagc.i  was,  by  the  move- 
ment, thrust  through  a  window  of  the  car, 
ap''  struck  plaintiff,  inflicting  the  injury 
cc.nplnined  of.  The  car  driver  happening 
to  look  up  in  his  mirror  saw  the  wagon 
driver  in  the  act  of  turning  out,  and  he  at 
once  set  the  brake  and  stopped  the  car.  It 
was  claimed  that  the  car  was  traveling  at  an 
unusual  rate  of  speed.  Held,  that  the  evi- 
dence failed  to  show  any  negligence  on  the 
part  of  defendant,  and  the  submission  of  the 
question  to  the  jury  was  error ;  that  assum- 
ing the  rate  of  speed  was  unusual,  it  had 

'*  See  also  post,  483. 


nothing  to  do  with  the  accident.  Alexan- 
der  V.  Rochester  City  &*  B.  R.  Co.,  48  Am. 
&*  Eng.  R.  Cas.  46,  128  N.  Y.  13,  27  A'.  E. 
Rep.  950,  38  N.  Y.  S.  R.  254 ;  reversing  35 
N.  Y.  S.  R.  701, 12  N.  Y.  Supp.  685.— Dis- 
tinguishing Hill  V.  Ninth  Ave.  R.  Co.,  109 
N.  Y.  239. 

As  a  driver  was  bringing  the  horses  from 
one  end  of  a  street-car  to  the  other,  they, 
from  some  unexplained  cause,  suddenly  took 
fright,  broke  away  from  the  driver,  ran 
into  the  rear  end  of  another  car  on  which 
plaintiff  was  riding,  and  injured  him.  The 
evidence  showed  that  the  horses  had  been 
regularly  worked  for  six  weeks,  with  entire 
satisfaction,  and  were  considered  perfectly 
safe.  At  the  time,  the  driver  held  the  reins 
in  one  hand,  and  did  what  he  could  to  pre- 
vent their  running  away.  The  evidence 
showed  that  he  was  not  then  in  good  health, 
although  there  was  nothing  to  show  the 
nature  of  his  disability,  or  that  he  was  un- 
fitted for  his  work ;  and  the  evidence  also 
tended  to  show  that  no  man  could  have  held 
the  horses  at  the  time.  Held,  that  there 
was  not  sufficient  evidence  of  negligence  to 
warrant  submitting  the  question  to  the 
jury,  and  a  nonsuit  should  have  been 
granted.  Quinlan  v.  Sixth  Ave.  R.  Co.,  4 
Daly  {N.  Y.)  487. 

435.  Where  nonsuit  is  properly 
ordered.  —  Plaintiff  testified  that  she  got 
upon  the  car  platform  and  offered  her  fare 
to  the  conductor,  who  said  :  "  She  is  drunk 
and  does  not  know  what  she  is  about ;  I  do 
not  do  business  in  that  way  "  ;  and  that  she 
saw  his  hand  go  up  to  the  bell,  and  that 
she  felt  a  touch  of  a  hand  on  her  shoulder, 
and  went  "  flying  "  into  the  street.  She  ad- 
mitted that  she  could  not  tell  whether  she  fell 
or  was  pushed,  or  whether  the  conductor 
or  some  one  else  touched  her,  and  there 
was  no  other  evidence  to  explain  the  doubt. 
Held,  that  the  case  should  have  been  dis- 
missed. Pixley  V.  Third  Ave.  R.  Co.,  i  J. 
&*  S.  {N.   Y.)  406. 

Plaintiff,  without  signaling  either  the 
conductor  or  driver,  stepped  on  the  foot 
rail  of  un  open  street-car  when  it  started, 
and  his  body  came  in  contact  with  a  red 
truck  which  he  had  seen  as  he  approached 
the  car.  There  was  no  evidence  that  the 
driver  or  conductor  saw  either  the  truck  or 
plaintiff,  or  perceived  the  danger.  In  an 
action  to  recover  for  the  injuries  sustained 
— held,  that  plaintiff  was  properly  nonsuited. 
Littmann  v.  Dry  Dock,  E.  B.  &»  B.  R.  Co.,  6 


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STREET   RAILWAYS,  436-440. 


Misc.  34,  25  A^.  K  5«/i/.  1002,  55  N.  Y.  S. 
X.  514. 

Where  a  passenger  is  injured  while  at- 
tempting to  get  on  a  moving  street-car  it 
is  incumbent  on  him  to  show  positive  neg- 
ligence on  the  part  of  the  company  or  its 
servants ;  and  unless  he  can  show  such  pos- 
itive negligence,  the  trial  court  will  prop- 
erly direct  a  judgment  of  nonsuit.  Stager 
V.  Ridge  Ave.  Pass.  R.  Co.,  33  Am.  &•  Eng. 
R.  Cos.  540,  iigPa.  Si.  70,  12  A/l.  Rep.  821, 
21   IV.  N.  C.  131,  II  Cent.  Rep.  427. 

Plaintif!  was  by  occupation  a  conductor 
on  the  road,  but  being  off  duty  at  the  time, 
he  was  riding  on  the  front  platform  as  a 
passenger.  The  car  stopped  at  a  transfer 
stand  and  was  facing  west ;  the  east-bound 
track  was  on  the  south,  and  so  close  that 
the  space  between  the  cars  was  about  six 
inches.  The  car  being  crowded,  plaintiff 
climbed  over  the  dasher  on  the  south  side 
of  the  car,  backward,  in  order  to  secure  a 
footing,  so  that  he  could  not  see  what  was 
passing  upon  the  south  track,  and,  upon 
reaching  the  ground,  he  was  struck  and  in- 
jured by  an  east-bound  car  approaching  "at 
a  good  trot."  Held,  that  a  nonsuit  was 
properly  granted.  In  descending  from  the 
front  platform  in  a  place  known  to  be  dan- 
gerous, he  was  guilty  of  contributory  negli- 
gence. Fry  V.  People's  Pass.  R.  Co.,  17 
Phila.  {Pa.)  61.— FOLLOWING  Lackawanna 
&  B.  R.  Co.  V.  Chenewith,  52  Pa.  St.  390. 
Quoting  Creed  v.  Pennsylvania  R.  Co.,  86 
Pa.  St.  145.  Reviewing  Gray  v.  Scott,  66 
Pa.  St.  345. 

/.  Procedure. 

436.  SuflSciency  of  complaint.— In 

a  suit  against  a  street-car  company,  a  count 
alleged  that  plaintiff  was  "on  "a  car,  and 
thereby  it  became  the  duty  of  the  company 
"  to  guard,  protect,  and  secure "  plaintiff 
while  leaving  the  car.  Held,  that  the  count 
was  bad,  as  it  failed  to  show  any  facts  giving 
rise  to  such  duty.  Plaintiff  might  have 
been  on  the  car  as  a  trespasser.  Breese  v. 
Trenton  Horse  R.  Co.,  41  Am.  &*  Ettg.  R. 
Cas.  230,  52  N.J.  L.  250,  19  Atl.  Rep.  204. 

A  count  charging  in  general  terms  that 
the  car  of  defendant,  by  the  carelessness  of 
the  management  of  those  having  it  in 
charge,  ran  over  the  body  and  arm  of  plain- 
tiff, was  sustained.  Breese  v.  Trenton  Horse 
R.  Co.,  41  Am.  &*  Eng.  R.  Cas.  230,  52  N./. 
L.  250,  19  Atl.  Rep.  204. 


437.  Evidence,  admissibility  of.— 

Where  a  company  is  sued  for  injury  to  a 
passenger  caused  by  his  being  thrown  down 
by  a  sudden  jerk  or  starting  of  the  car,  and 
contributory  negligence  is  set  up  as  a  de- 
fense, it  is  proper  to  prove  the  crowded  con- 
dition of  the  car,  both  as  tending  to  show 
whether  the  conductor  should  have  exercised 
a  greater  degree  of  care,  and  also  as  affect- 
ing the  question  of  contributory  negligence. 
Metropolitan  R.  Co.  v.  /ones,  1  App.  Cas. 
{D.  C.)  200. 

In  an  action  by  a  female  passenger  against 
a  company,  she  stated  in  her  evidence  that 
the  conductor  took  hold  of  her  and  tried  to 
throw  her  off  the  car,  whereupon  the  state- 
ment was  stricken  out  by  the  court  and  the 
witness  told  to  state  what  the  conductor 
did  and  not  what  he  tried  to  do.  Held,  that 
its  introduction  at  first  was  no  ground  for 
reversal  of  a  judgment  against  the  company. 
King  v.  Second  Ave.  R.  Co.,  75  Hun  17,  26 
A^.  Y.Supp.fjT^. 

438.  suflBciency  of.  —  In  an  ac- 
tion against  the  proprietors  of  a  railroad 
car  for  an  accident  that  happened  to  the 
plaintiff  in  consequence  of  the  carelessness 
of  one  of  their  drivers,  an  averment  in  the 
declaration  that  the  contract  was  "  to  carry 
safely  "  is  supported  by  proof  that  the  acci- 
dent arose  from  the  driver's  want  of  care 
and  skill.  Thompson  v.  Macklem,  2  U.  C 
Q.  B.  300. 

430.  CommeutinsT  on  evidence.  — 
In  an  action  for  damages  caused  by  defend- 
ant's negligence  in  starting  a  car  while 
plaintiff  was  alighting,  an  instruction  to  the 
effect  that  certain  acts  of  plaintiff  were  "  all 
that  the  law  required  of  her,  so  far  as  dili- 
gence on  her  part  in  getting  off  the  car  was 
concerned,"  and  that  under  such  circum- 
stances the  starting  of  the  car  was  "an  act 
of  negligence  on  the  part  of  the  defendant," 
is  erroneous,  as  being  a  comment  on  the 
evidence.  Blair  r.  Mound  City  R.  Co.,  31 
Mo.  App.  224.  —  Quoting  Spohn  v.  Mis- 
souri Pac.  R.  Co.,  87  Mo.  74. 

440.  Variance.— If  a  complaint  alleges 
that  the  injury  occurred  on  the  west  side  of 
the  street,  where  cars  were  accustomed  to 
stop  for  passengers,  and  where  they  might 
lawfully  stop,  while  the  proof  shows  that  it 
occurred  on  the  east  side,  where  they  were 
forbidden  to  stop,  the  variance  is  fatal. 
North  Birmingham  St.  R.  Co,  v.  Calder- 
ivood,  89  Ala.  247,  7  So.  Rep.  360.  —  Distin- 
guishing Western  R.  Co.  v.  Sistrunk,  85 


STREET   RAILWAYS,  441-443. 


607 


Ala.  352.— Qualified  in  Kansas  City,  M. 
&  B.  R.  Co.  V.  Crocker,  95  Ala.  412. 

441.  Where  mere  proof  of  an  in- 
Jury  casts  the  burden  on  defendant. 

— When  plaintiff  sues  for  personal  injuries 
caused  by  the  negligence  of  defendant's 
servants,  the  onus  is  on  him  to  prove  the 
negligence,  and  that  it  was  the  proximate 
cause  of  the  injury ;  but  when  his  evidence 
^bows  that  the  injuries  were  received  while 
alighting  from  defendant's  car,  and  were 
caused  by  the  driver  starting  the  car  with  a 
jerk  as  he  was  in  the  act  of  alighting,  this 
establishes  a  prima  facie  case  of  negligence, 
and  imposes  on  the  defendant  the  burden 
of  disproving  it.  Birmingham  Union  R. 
Co.  V.  Hale,  90  Ala.  8,  8  So.  Rep.  142. 

Mere  proof  of  the  accident  by  which  the 
injury  was  inflicted  may  be  sufficient  to 
throw  the  burden  on  the  carrier  to  show 
that  he  used  due  care ;  and  when  there  is 
an  absence  of  vis  major,  and  it  is  shown 
that  the  injury  happened  from  the  abuse  of 
agencies  within  the  defendant's  power,  it 
will  be  inferred  from  the  mere  fact  of  the 
injury  that  defendant  acted  negligently,  and 
even  if  such  presumption  is  one  of  negli- 
gence generally,  and  not  of  any  specific 
negligence,  it  will  be  sufficient  to  throw 
upon  a  defendant  the  burden  of  rebutting 
the  specific  negligence  alleged.  North  Chi- 
cago St.  R.  Co.  V.  Cotton,  52  Am.  6-  Eng. 
R.  Cas.  238,  140  ///.  486,  29  N.  E.  Rep. 
899;  affirming  41  ///.  App.  311.  Chicago 
City  R.  Co.  V.  Eng  el,  35  ///.  App.  490. 

Proof  that  a  street-car  was  thrown  from 
the  track  over  an  embankment,  whereby  a 
passenger  was  injured,  raises  a  presumption 
of  negligence  and  casts  upon  the  company 
the  burden  of  showing  that  the  injury  was 
not  caused  b}'  its  fault,  or  the  fault  of  its 
servants.  Louisville  &*  P.  R.  Co.  v.  Smith, 
2  Dttv.  {Ky.)  556. —  Reviewed  in  Central 
Pass.  R.  Co.  V.  Kuhn,  86  Ky.  578,  6  S.  W. 
Rep.  441. —  Wilkerson  v.  Corrigan  Con.  St. 
R.  Co.,  26  Mo.  App.  144. 

An  instruction  that  the  burden  of  proof 
rests  upon  the  defendant  to  show  that  the 
injury  was  caused  by  something  not  under 
its  control,  and  not  from  the  use  of  unsuit- 
able or  skittish  horses,  or  careless  or  un- 
skilful management  of  the  car,  and  that  by 
the  exercise  of  the  utmost  human  fore- 
sight, skill,  and  care  such  injury  could  not 
have  been  prevented,  states  too  broadly  the 
degree  of  care  incumbent  upon  the  de- 
fendant.   Dougherty  v.  Missouri  R.  Co.,  34 


Am.  &*  Eng.  R.  Cas.  488 ;  see  also  37  Am. 
&*  Eng.  R.  Cas.  206,  97  Mo.  647,  15  IVest. 
Rep.  235,  8  S.  W.  Rep.  900,  11  S.  W.  Rep. 
251.  —  Explained  in  Smith  v.  Chicago 
&  A.  R.  Co.,  108  Mo.  243.  Reconciled 
in  Furnish  v.  Missouri  Pac.  R.  Co.  102 
Mo.  438. 

442.  When  plaintiff  must  show 
negligence  and  absence  of  contribu- 
tory uegligence.'*'  —  In  an  action  by  a 
passenger  for  an  injury  received  in  conse- 
quence of  a  sudden  jerk  of  the  car,  it  is 
not  incumbent  on  plaintiff  to  show  amrm- 
atively  the  immediate  connection  between 
the  injury  and  the  misconduct  of  the  car- 
rier, it  appearing  that  the  car  was  under 
the  control  of  the  carrier  or  its  servant, 
and  that  the  accident  was  such  as,  under 
the  ordinary  course  of  things,  would  not 
have  occurred  had  those  wlio  had  the  man- 
agement of  the  car  used  proper  care. 
Dougherty  v.  Missouri  R.  Co.,  21  Am.  €m 
Eng.  R.  Cas.  497,  81  Mo.  323,  51  Am.  Rep. 
239 ;  affirming  9  Mo.  App.  478. 

In  an  action  by  a  passenger  to  recover  for 
a  personal  injury,  the  burden  of  showing 
negligence  is  on  the  plaintiff.  So  it  is 
proper  to  charge  that  the  mere  fact  that 
plaintiff  ^astained  an  injury  while  a  pas- 
senger does  not  entitle  him  to  a  verdict. 
He  must  show  that  the  injury  was  caused 
by  a  lack  of  due  care  on  the  part  of  the 
company.  Buck  v.  Manhattan  R.  Co.,  10 
N.  Y.  Supp.  107,  IS  Daly  550,  32  N.  Y.  S. 
■ff.  51 ;  affirmed  in  134  N.  Y.  589,  mem.,  31 
N.  E.  Rep.  628,  mem. 

A  passenger  on  a  street-car  was  struck 
and  injured  by  a  passing  load  of  hay.  Held, 
that  to  make  the  company  liable  the  pas- 
senger must  prove  not  only  that  he  was 
without  fault  but  that  the  company  was 
negligent.  Federal  St.  &*  P.  V.  R.  Co.  v. 
Gibson,  1 1  Am.  &*  Etig.  R.  Cas.  142,  96  Pa. 
St.  83. 

443.  Plaintiffinjured  while  riding 
in  place  of  danger  has  the  burden 
of  disproving  negligence.  —  When  it 
appears  that  a  passenger  is  riding  on  a  car 
in  a  place  of  danger,  his  negligence  is  prima 
facie  proved,  and  the  onus  is  on  him  to  re- 
but the  presumption.  Clark  v.  Eighth  Ave. 
R.  Co.,  36  N.  Y.  13s,  34  How.  Pr.  315: 
affirming  32  Barb.  657.  —  APPROVED  in 
Ward  V.  Central  Park,  N.  &  E.  R.  R.  Co., 
II  Abb.  Pr.  N.  S.  (N.  Y.)  411.     DiSTiN- 

*Seeafso/0j/,  610. 


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STREET  RAILWAYS,  444. 


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cuiSHED  IN  Ashbrook  v.  Frederick  Ave. 
R.  Co.,  i8  Mo.  App.  290.  Followed  in 
Connolly  v.  Knickerbocker  Ice  Co.,  39  Am. 
&  Eng.  R.  Cas.  441,  114  N.  Y.  104,  21  N.  E. 
Rep.  loi,  22  N.  Y.  S.  R.  675;  Solomon  v. 
Central  Park,  N.  &  E.  R.  R.  Co..  i  Sweeny 
(N.  Y.)  298.  Quoted  in  Barrett  v.  Third 
Ave.  R.  Co.,  8  Abb.  Pr.  N.  S.  (N.  Y.)  205. 
Reviewed  and  followed  in  Ward  v. 
Central  Park,  N.  &  E.  R.  R.  Co.,  i  J.  &  S. 
(N.  Y.)  392,  42  How.  Pr.  289. 

But  the  presumption  of  negligence  against 
a  passenger  who  rides  in  a  place  of  danger 
is  rebutted  by  proof  that  a  car  was  stopped 
for  him  when  it  was  so  full  that  he  could 
only  ride  on  the  steps,  and  that  while  so 
riding  the  conductor  called  upon  him  and 
received  his  fare.  Clark  v.  Eighth  Ave.  R. 
Co.,  36  N.  V.  13s,  34  //ow.  yr.  315  ;  a^rw- 
ingizBarb.  657.— DISTINGUISHED  IN  Nolan 
V.  Brooklyn  City  &  N.  R.  Co.,  3  Am.  &  Eng. 
R.  Cas.  463,  87  N.  Y.  63,  41  Am.  Rep.  345. 
Followed  in  Hadencamp  v.  Second  Ave. 
R.  Co.,  I  Sweeny  (N.  Y.)  490.  Quoted 
IN  Pool  V.  Chicago,  M.  &  St.  P.  R.  Co.,  8 
Am.  &  Eng.  R.  Cas.  360,  56  Wis.  227. 

Proof  of  the  above  facts  is  sufficient  to 
authorize  a  jury  in  finding  that  plaintiff  was 
invited  by  those  in  charge  of  the  car  to 
ride  on  the  step,  and  that  an  implied  assur- 
ance was  thereby  given  that  it  was  a  safe 
and  suitable  place.  Clark  v.  Eighth  Ave. 
Ji.  Co.,  36  A'^.  V.  135,  34  How.  Pr.^is;  af- 
firming 32  Barb.  657.— Applied  in  Ward 
V.  Central  Park,  N.  &  E.  R.  R.  Co.,  11  Abb. 
Pr.  N.  S.  (N.  Y.)  411.  Quoted  in  Lax  v. 
Forty-second  St.  &  G.  S.  F.  R.  Co.,  14  J.  & 
S.  (N.  Y.)  448.  Reviewed  in  Goodrich  v. 
Pennsylvania  &  N.  Y.  C.  &  R.  Co.,  29  Hun 
(N.  Y.)  so. 

444.  Measure  of  damages,  gener- 
ally. —  In  an  action  by  a  passenger  to  re- 
cover against  a  street  railway  for  a  personal 
injury,  the  company  asked  the  court  to 
charge  the  jury  that  no  recovery  could  be 
had  for  medical  services,  there  being  no 
evidence  of  the  cost  thereof.  The  court 
said  :  "  You  will  not  take  that  into  considera- 
tion unless  there  is  doubt" — leaving  the 
sentence  incomplete.  Held,  no  cause  for 
reversal.  Washington  &*  G.  R,  Co.  v.  Var- 
nell,  98  U.  S.  479. 

In  such  case  the  company  further  re- 
quested the  court  to  charge  the  jury  that  in 
fixing  pliiintiff's  damages  they  must  con- 
sider his  advanced  age  as  lessening  his  ca- 
pacity to  earn  money.     In  answer,  the  court 


said  that  the  damages  must  be  reasonable, 
as  the  jury  could  not  tell  whether  a  man 
would  live  one,  two,  or  five  years.  Held, 
that  the  instruction  was  no  ground  for  re- 
versal, though  not  very  instructive.  Wash- 
ington &*  G.  R.  Co.  V.  Varnell,  98  U.  S.  479. 

Where  a  street-car  company  is  only 
charged  with  ordinary  negligence  in  injuring 
a  passenger,  it  is  proper  to  instruct  the 
jury  that  they  can  only  allow  compensatory 
damages,  such  as  will  compensate  plaintiff 
for  his  expense  and  suffering,  physically 
and  mentally,  in  his  present  condition,  and 
decreased  capacity  to  earn  a  living,  and  that 
punitive  or  vindictive  damages  are  not 
allowable,  and  that  the  law  permits  no  one 
but  the  jury  to  measure  the  damages.  City 
&*  S.  R.  Co.  V.  Findley,  76  Ga.  311. 

Where  a  passenger  is  injured  through 
negligence,  without  any  circumstances  of 
aggravation,  only  compensatory  damages 
are  allowable  ;  but  a  large  discrimination  is 
left  to  the  jury  in  estimating  the  compensa- 
tory damages.  Each  case  is  to  be  governed 
by  its  own  peculiar  facts ;  and  unless  the  find- 
ing is  outrageous,  or  shows  that  something 
has  been  added  by  way  of  punishment,  the 
verdict  should  not  be  disturbed.  LouisvilU 
&•  P.  R.  Co.  V.  Smith,  2  Duv.  (Ky.)  556.— 
Quoted  and  reviewed  in  Louisville  &  N. 
R.  Co.  V.  Fox.  II  Bush  (Ky.)  495. 

An  action  was  instituted  by  a  street-car 
passenger  to  recover  for  the  gross  neglect 
of  defendants,  and  no  special  damage  was 
alleged  other  than  the  fact  of  the  injury, 
the  pain  and  suffering  of  plaintiff,  his  ex- 
penses, loss  of  time,  and  permanent  injury. 
The  jury  were  instructed  that  if  the  verdict 
was  for  plaintiff  they  should  assess  such 
damages,  within  the  amount  claimed,  as 
would  reasonably  compensate  him  for  his 
loss  of  time,  necessary  expenditures,  and 
for  permanent  injury  or  disability,  if  any, 
and  for  the  injury  sustained  by  him  in  his 
lodily  and  mental  suffering,  if  any  there 
was  resulting  directly  from  said  injuries. 
The  court  also  propounded  this  special  in- 
terrogatory: "What  sum  in  damage  will 
reasonably  compensate  the  plaintiff  for  the 
injuries  sustained  by  him  ?  "  To  which  the 
jury  responded  :  "  Five  thousand  dollars." 
Held,  that  the  jury  were  properly  instructed 
as  to  the  measure  of  damages.  Central  Pass. 
R.  Co.  V.  Kuhn,  32  Am.  &*  Eng.  R.  Cas.  16, 
86  A>.  578.  6  S.  W.  Rep.  441. 

The  court  charged  that  the  jury  might 
take  into  consideration,  upon  the  subject  of 


STREET   RAILWAYS,  446,  446. 


509 


the  permanency  of  the  injury,  plaintifl's 
liability  to  suffer  more  from  other  ailments 
than  she  would  have  suffered  had  it  not 
been  for  the  injury.  Held,  no  error,  where 
it  appeared  that  the  results  of  the  accident 
would  be  permanent,  and  that  if  plaintiff 
was  sick  from  other  causes  the  result  of  the 
mjury  would  complicate  them.  Crank  v. 
Forty-second  St.  &•  St.  N.  A.  R.  Co.,  25  N. 
Y.  S.  A\  53,  6  A':  r.  Supp.  229,  53  Hun  425 ; 
affirmed  in  \  rj  N.  Y.  648,  mem.,  27  N.  E. 
Rep.  856,  mem. 

In  an  action  to  recover  compensatory 
damages  for  injuries  caused  by  the  sudden 
starting  of  a  car  when  plaintiff  was  about 
to  alight,  evidence  as  to  what  occurred 
when  plaintiff  got  on  the  car,  tending  to' 
prove  malice  on  the  part  of  the  driver,  is 
not  admissible.  Grisim  v.  Milwaukee  City 
R.  Co.,  84  Wis.  19,  54  N.  W.  Rep.  104. 

445.  Amount  of  damages.  —  Before 
plaintiff  was  injured  she  washed  and  ironed 
for  a  living,  averaging  $35  a  month  above 
expenses.  She  lost  some  six  months'  time 
by  the  injury,  and  then  went  to  service  at 
$12  a  month,  but  could  not  do  the  work, 
and  her  wages  were  reduced  to  $8  or  $10  a 
month,  and  she  remained  subject  to  some 
disability  and  suffering  for  life.  Held,  that 
a  verdict  for  $1 250  was  not  excessive.  Coast 
Line  R.  Co.  v.  Boston,  83  Ga.  387,  9  S.  E. 
Rep.  1108. 

It  was  alleged  that  plaintiff  was  pushed 
off  a  car  in  front  of  the  wheels,  while  the  car 
was  in  rapid  motion  ;  that  he  caught  the 
railing  and  held  on,  after  those  in  charge 
knew  of  his  perilous  position,  for  a  length 
of  time  sufficient  to  enable  them  to  stop 
the  car  ;  this  they  neglected  to  do,  and  his 
hold  finally  giving  way,  the  wheels  ran  over 
his  arm.  Held,  that  %yyQo  damages  were 
not  excessive.  Chicago  JV.  D.  R.  Co.  v. 
Hughes,  69  ///.  170. 

The  small  bone  of  plaintiff's  leg  was 
fractured  9.t  the  ankle  and  some  of  the  liga- 
ments were  ruptured.  In  consequence  of 
this  he  was  laid  up,  not  more  than  eight 
weeks.  The  fracture  has  united  perfectly 
and  will  never  trouble  him  ;  the  ligaments 
have  not  healed  entirely,  but  will  not  trouble 
him  save  in  going  up  or  down  hill,  or  when 
there  is  a  change  of  weather,  and  then  he 
will  feel  like  one  with  a  sprained  ankle.  No 
special  damage  was  averred  and  no  circum> 
stances  of  aggravation  were  shown.  Held, 
that  a  verdict  for  $4000  is  disproportionate 
to  the  injury.    South  Covington  &*  C.  St.  R. 


Co.  v.  fVare,  27  Am.  &*  Eng.  R.  Cas.  206, 
84  A>.  267,  1  S.  W.  Rep.  493. 

Plaintiff  was  a  midwife  by  avocation,  and 
had  an  extended,  lucrative  practice.  By 
the  injury  she  was  permanently  disabled, 
and  deprived  of  the  power  of  locomotion, 
and  of  following  her  avocation ;  and  re- 
mained subject  to  constant,  protracted 
physical  suffering,  necessitating  regular  at- 
tendance and  treatment,  with  her  life  sad- 
dened with  a  gloomy  prospect  of  an  ap- 
proachmg  death.  Held,  that  a  verdict  for 
$5000  was  not  excessive.  Wardle  v.  New 
Orleans  City  R.  Co.,  13  Am.  A-  Et^.  R.  Cas. 
60,  35  La.  Ann.  202. 

Plaintiff's  injuries  were  such  as  to  neces* 
sitate  the  amputation  of  an  arm,  and  his  suf- 
ferings were  great,  and  his  expenses  heavy, 
amounting  to  $3000.  He  was  an  expert 
telegraph  operator,  receiving,  at  the  time 
of  the  injury,  a  salary  of  $144  per  month, 
and  sometimes  earning  $50  per  month  extra. 
It  appeared  that  his  usefulness  as  a  telegraph 
operator  was  impaired  to  the  extent  of  one 
half.  Held,  that  a  verdict  for  $12,000  was 
not  excessive.  Dougherty  v.  Missouri  R. 
Co.,  34  Am.  fix  Eng.  R.  Cas.  488;  see  also 
37  Am.  &*  Eng.  R.  Cas.  206,  97  Mo.  647,  1 5 
West.  Rep.  235,  8  S.  W.  Rep.  900,  11  S.  W. 
Rep.  251.— Reviewing  Porter  w.  Hannibal 
&  St,  J.  R.  Co.,  71  Mo.  66.  Reviewing 
AND  QUOTING  Waldhier  v.  Hannibal  &  St. 
J.  R.  Co.,  87  Mo.  37. 

Plaintiff  having  been  disabled  for  several 
weeks  and  having  suffered  much  pain  from 
an  injury  to  his  hip  caused  by  his  being 
thrown  down  while  alighting  from  a  street- 
car, an  award  of  $400  damages  is  not  so  ex- 
cessive as  to  raise  a  presumption  that  the 
jury  were  actuated  by  prejudice,  bias,  or  im- 
proper motive.  Knoiulton  v.  Milwaukee 
City  R.  Co.,  16  Am.  &-  Eng.  R.  Cas.  330,  59 
Wis.  278.  18  A^  W.  Rep.  17. 

446.  Amount  of  damages  for  Jury. 
—  Where  the  evidence  shows  that  a  pas- 
senger has  received  serious  injuries,  a  re- 
quest to  instiuct  the  jury  that  the  evidence 
will  justify  no  more  than  nominal  damages 
is  properly  refused.  It  is  for  the  jury  to 
determine  what  damages  plaintiff  has  sus- 
tained. Morison  v.  Broadway  &*  S.  A.  R, 
Co.,  28  N.  Y.  S.  R.  498,  8  N.  Y.  Supp.  436 ; 
affirmed  in  lyi  N.  Y.  166,  41  N.  Y.  S.  R. 
248,  29  A';  E.  Rep.  105. 

In  such  case  it  is  proper  to  direct  the 
jury  to  compensate  plaintiff  for  the  injuries 
received  by  him,  and  to  add  no  more  than 


y      t'  .  * 


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510 


STREET   RAILWAYS,  447-450. 


such  a  compensation  would  amount  to,  but 
beyond  that  the  amount  is  for  the  jury. 
Aforison  v.  Broadway  &*  S.  A.  R.  Co.,  28  N, 
Y.  S.  R.  498.  8  N.  Y.  Supp.  436 ;  affirmed  in 
130  N.  Y.  166, 4t  N.  Y.  S.  R.  248,  29  N.  E. 
Rep.  105. 

447.  AgTKravation  of  iujury.— Where 
the  court  has  instructed  the  jury  that  plain- 
tiff, who  sues  to  recover  for  personal  injuries 
caused  by  the  sudden  move'nent  of  a  street- 
car, can  only  recov  '>r  sut  .  ges  as  result 
"directly"  from  the  iv  a  not  error 
to  refuse  to  instruct  th^:  wc  Ciuaot  recover 
(or  any  aggravation  of  the  injury  caused  by 
not  obeying  the  instru'  tious  of  his  medical 
attendant,  where  no  issue  us  l  3uc!.  ..,  ^.a- 
vated  damages  is  made  by  plea.  C^ft'tud 
Pass.  R.  Co,  V.  Rose,  (A>.)  22  S.  W.  Rep.  745. 

Plaintiff,  a  female  passenger,  was  pregnant 
when  injured,  and  a  few  hours  afterward  a 
child  was  prematurely  born.  A  few  days 
later  she  was  attacked  with  peritonitis.  The 
medical  witness  testified  that  such  an  illness 
might  be  caused  by  other  agencies,  but  no 
evidence  was  introduced  to  show  that  it 
was  caused  by  another  agency.  Held,  that 
a  charge  that  if  the  peritonitis  was  caused 
by  the  negligence  of  the  physician  or  nurse 
or  was  a  consequence  of  her  own  poor  health 
she  could  not  recover  for  any  injury  caused 
thereby,  was  properly  refused.  Pollock  v. 
Brooklyn  Crosstown  R.  Co.,  39  N.  Y.  S.  R, 
568,  60  Hun  584,  mem.,  15  iV.  Y.  Supp.  189; 
affirmed  in  133  A'^  Y.  624,  mem.,  30  N.  E. 
Rep.  1 1 50,  mem.,  44  N.  Y.  S.  R.  932,  mem. 

4.  Injuries  to  Persons  or  Property  in  Street, 
a.  In  General. 

448.  Company  entitled  to  exclu- 
Bive  use  of  street  covered  by  tracks. 

— The  cars  of  street  railways  have  a  prefer- 
ence in  the  streets,  and  while  they  must  be 
managed  with  care,  so  as  not  negligently  to 
injure  persons  in  the  streets,  pedestrians 
must  use  reasonable  caution  to  keep  out 
of  their  way.  Fenton  v.  Second  Ave.  R. 
Co.,  126  N.  Y.  625,  26  A^.  E.  Rep.  967,  36 
N.  Y.  S.  R.  385,  4  Silv.  App.  380;  reversing 
56  Hun  99.  29  N.  Y.  S.  R.  962,  9  N.  Y. 
Supp.  162.  —  Distinguished  in  EIze  v. 
Baumann,  21  N.  Y.  Supp.  782,  2  Misc.  72. 
Quoted  in  Baker  v.  Eighth  Ave.  R.  Co., 
41  N.  Y.  S.  R.  353,  62  Hun  39,  16  N.  Y. 
Supp.  319.  Reviewed  in  Scott  v.  Third 
Ave.  R.  Co.,  41  N.  Y.  S.  R.  152,  61  Hun 


627,  16  N.  Y.  Supp.  350 ;  Dudley  v.  West- 
cott,  18  N.  Y.  Sipp.  130. 

A  street-car  company  has  the  right  to  the 
exclusive  use  of  its  track  while  its  cars  are 
passing,  and  an  ordinary  vehicle  passing 
along  the  street  must  turn  out  to  make  way 
for  the  cars,  and  the  driver  of  such  vehicle 
cannot  demand  that  a  car  shall  stop,  or  do 
any  other  act  to  avoid  a  collision,  if  it  can 
be  avoided  by  his  turning  off  the  track.  The 
right  of  passage  for  the  cars  grows  out  of 
the  fact  that  they  are  limited  to  the  track 
and  cannot  turn  to  the  right  or  left  as  ordi- 
nary vehicles  can.  Barker  v.  Hudson  River 
R.  Co.,^Daly  (N.  Y.)  274,— DISTINGUISHED 
IN  Louisville,  N.  A.  &  C.  R.  Co.  v.  Phillips, 
31  Am.  &  Eng.  R.  Cas.  432,  112  Ind.  59. 

449. but  not  at  street  cross- 
ings.—The  trial  court  refused  to  charge 
that  a  company  crossing  a  street  with  its 
car  had  the  right  of  way,  and  the  superior 
right  in  the  street  which  the  driver  of 
a  truck  was  bound  to  respect.  Held,  no 
error.  O'Neil  v.  Dry  Dock,  E.  B.  &»  B.  R. 
Co,  52  Am.  &*  Eng.  R.  Cas.  573,  129  N.  Y. 
125,  29  N.  E.  Rep.  84,  41  A'^.  Y.  S.  R.  107; 
affirming  rj  J.  &»  S.  123,  36  N.  Y.  S.  R. 

934,  15  A^.  Y.  Supp.  84- 

The  rule  giving  to  the  cars  of  a  street- 
railway  corporation  the  preference  and  a 
superior  right  of  way  in  the  street  where  its 
tracks  are  laid  does  not  apply  to  streets 
crossing  the  railway ;  at  such  crossings  its 
cars  have  no  rights  superior  to  those  of 
vehicles  moving  in  the  streets  crossed. 
O'Neil  v.  Dry  Dock,  E.  B.  &*  B.  R.  Co..  52 
Am.  &»  Eng.  R.  Cas.  $73,  129  N.  Y.  125,  29 
A^.  E.  Rep.  84,  41  A^.  Y.  S.  R.  107;  affirm- 
i^g  27  /•  &*  S.  123,  36  A':  Y.  S.  R.  934, 
ISA'.  Y.  Supp.  84. 

Street-car  companies  are  entitled  to  a 
right  of  way  as  against  other  vehicles  pass- 
ing along  their  tracks;  but  as  to  vehicles 
merely  crossing  at  street  crossings,  their 
rights  are  the  same  as  the  others.  Buhrens 
V.  Dry  Dock,  E.  B.  &•  B.  R.  Co..  25  A'.  Y.  S. 
R.  191,  6  A^.  Y.  Supp.  224,  S3  Hun  $71 ; 
affirmed  in  125  N.  Y.  702,  mem.,  26  JV.  E. 
Rep.  7S2. 

460.  Interest  in  street  not  exclu- 
sive.—Where  an  action  is  brought  to  re- 
cover damages  for  injuries  sustained  in  a 
collision  between  a  street-car  and  a  buggy, 
an  instruction  that  a  company  operating  a 
street  railway  is  entitled  to  the  track  on 
meeting  foot  passengers  or  other  vehicles 
is  misleading,  as  justifying  the  belief  that 


STREET   RAILWAYS,  451,  452. 


511 


the  company  it  not  bound  to  exercise  due 
and  proper  care  to  prevent  collision  with 
others  using  the  same  track.  Chicago  W. 
D.  R.  Co.  '.'.  Iitgraham,  41  Am.  &-  Eng.  R. 
Cat.  243.  131  ///.  659.  23  A';  E,  Rep.  350. 

The  right  of  a  street-railway  in  a  street  is 
only  an  easement  to  use  the  highway  in 
common  with  the  public;  it  has  no  ex- 
clusive right  of  travel  upon  its  track,  and  is 
bound  to  use  the  same  care  in  preventing  a 
collision  as  is  the  driver  of  a  wagon  or 
other  vehicle.  Raschtr  v.  East  Detroit  &* 
G.  P.  R.  Co.,  90  MicA.  413,  51  A^.  IV. 
Rep.  463. 

And  it  is  the  duty  of  the  company  to  ex- 
ercise such  watchful  care  as  may  prevent 
accidents  or  injury  to  persons  who,  without 
negligence  on  their  own  part,  may  not  at 
the  moment  be  able  to  get  out  of  tlie  way 
of  a  passing  car.  Gilmore  v.  Federal  St.  &* 
P.  V.  Pass.  R.  Co.,  153  Pa.  St.  31.  25  Atl. 
Rep.  651.  — Questioned  and  followed 
IN  Gibbons  v.  Wilkes-Barre  &  S.  St.  R. 
Co.,  15s  Pa.  St.  279. 

Street-railway  companies  have  no  exclu- 
sive right  to  that  part  of  the  street  covered 
by  their  tracks ;  the  duty  results  that  they 
shall  see  that  their  tracks  are  clear  as  their 
cars  pass  over  them.  This  obligation  is  as 
imperative  and  firmly  fixed  as  is  the  duty  of 
steam-railway  companies  to  their  passen- 
gers; both  result  from  the  hazard  to  human 
life  of  the  employment,  no  less  than  from 
the  contract  for  carriage.  Galveston  City  R. 
Co.  v.  Hewitt,  67  Tex.  473,  3  S.  W,  Rep.  705. 

461.  Care  company  must  exercise, 
generally. — The  ordinary  care  required  of 
a  street-railroad  company  to  avoid  a  colli- 
sion is  such  watchfulness  and  precaution 
as  are  fairly  proportioned  to  the  danger  to 
be  avoided,  judged  by  the  standard  of  com- 
mon prudence  and  e.\perience ;  or  such  care 
as  a  reasonably  prudent  man,  under  the 
peculiar  circumstances  of  the  case,  would 
exercise.  Negligence  is  the  failure  to  use 
such  care  and  prudence.  Citizens'  St.  R. 
Co.  V.  Sleen,  19  Am.  &*  Eng.  R.  Cas.  30,  42 
Ark.  321. 

The  drivers  of  street-cars  through  a 
densely  populated  city  ought  always  to  have 
their  teams  under  their  immediate  and  ab- 
solute control,  and  are  bound  to  drive  in 
such  a  manner,  if  possible,  as  to  injure  no 
one.  They  may  generally  rely  upon  the 
instinct  of  self-preservation  to  induce  every 
one  to  endeavor  to  avoid  injury,  and  when, 
from  infancy  or  other  apparent  cause,  a 


person  liable  to  be  injured  cannot  be  ex- 
pected to  exercise  the  usual  degree  of  pru- 
dence in  this  respect,  a  greater  degree  of 
caution  is  necessary  on  the  part  of  the 
driver.  ScAierhold  v.  North  Beach  &»  M.  R. 
Co.,  40  Cal.  447.— Quoted  in  Wall  v.  Hel- 
ena St.  R.  Co.,  12  Mont.  44. 

It  is  the  duty  of  those  operating  street- 
cars, especially  on  crowded  city  streets,  to 
use  the  utmost  care  and  diligence  to  avoid 
collisions;  but  this  does  not  relieve  persons 
in  the  streets  from  also  observing  care  and 
prudence.  Liddy  v.  St.  Louis  R.  Co.,  40 
Mo.  506. 

Ordinary  care  is  required  of  a  street-rail- 
road company  towards  one  crossing  a  street 
in  front  of  its  car.  Stanley  v.  Union  Depot 
R.  Co.,  114  Mo.  606,  21  5.  W.  Rep.  832. 
Ft.  Worth  St.  R.  Co.  v.  Witten,  74  Tex.  202, 
w  S.W.  Rep.  1091. 

A  street-railway,  company  is  liable  for  in- 
juries to  a  pedestrian  occasioned  by  care- 
lessness, negligence,  or  want  of  attention, 
and  which  are  not  simply  the  result  of 
an  accident  which  could  not  have  been 
foreseen  by  the  exercise  of  ordinary  and  rea- 
sonable care  and  prudence.  Wall  v.  Helena 
St.  R.  Co.,  50  Am.  &»  Eng.  R.  Cas.  474,  12 
Mont.  44,  29  Pac.  Rep.  721. 

Or  reasonable  care.  Moroney  v.  Brooklyn 
City  R.  Co.,  30  N.  V.  S.  R.  911,  9  N.  Y. 
Supp.  546. 

Must  exercise  such  watchful  care  as  will 
prevent  accidents  or  injuries  to  persons 
who,  without  negligence  on  their  own  part, 
may  not  be  able  to  get  out  of  the  way  of  a 
passing  car.  The  degree  of  care  to  be  ex- 
ercised must  necessarily  vary  with  the  cir- 
cumstances of  each  case.  Kestner  v.  Pitts- 
burgh  &>  B.  Traction  Co.,  158  Pa.  St.  422,  27 
Atl.  Rep.  1048. 

When  one  duty  of  the  driver  of  a  norse 
car  was  to  collect  the  fare  from  passengers, 
it  was  erroneous  to  charge  that  the  jury,  in 
determining  the  care  exercised  by  the 
driver  at  the  time  of  a  collision,  might  con- 
sider the  fact  that  one  of  his  duties  was  the 
collection  of  fares,  when  the  evidence  was 
uncontradicted  that,  at  the  time  in  question, 
there  were  no  passengers  from  whom  to  col- 
lect fares.  Sheets  v.  Connolly  St.  R.  Co.,  54 
N.J.  Z.  518,  24  Atl.  Rep.  483. 

452. the  same  as  other  vehicles. 

— Those  operating  ordinary  street-cars  are 
ordinarily  governed,  as  to  the  care  to  be 
observed,  by  the  same  rules  that  apply  to 
other  vehicles.    Topeka  City  R,  Co.  v.  H^gs, 


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STREET   RAILWAYS,  45S-456. 


34  Am.  &*  Eng,  K.  Cas.  529,  38  Kan.  375,  16 
Pac.  Rep.  667. 

In  general,  the  same  degree  of  care  as  to 
pedestrians  is  required  of  street-cars  as  of 
the  driver  or  owner  of  any  oilier  vehicle. 
Memphis  City  R.  Co.  v.  Logue,  13  Lea 
(Tenn.)  32.— Approving  Unger  v.  Forty- 
second  St.  &  G.  S.  F.  R.  Co.,  51  N.  y.  497. 

453. to  see  that  the  track  is 

clear. — In  a  large,  populous  city,  where  all 
descriptions  of  vehicles  are  constantly  pass- 
ing and  repassing,  as  well  as  persons  on 
foot.  Including  the  aged  and  infirm,  and 
children  who  are  young  and  wanting  in 
prudence  and  discretion,  it  is  the  duty  of 
drivers  of  cars  not  only  to  see  that  the 
track  is  clear,  but  also  to  exercise  a  constant 
watchfulness  for  persons  who  may  be  ap- 
proaching the  track.  Baltimore  City  Pass. 
R.  Co.  v.  McDonnell,  43  Md.  534, 14  Am.  Ry. 
Rep.  272. 

The  driver  of  a  horse-car  must  sit  or 
stand  on  the  front  platform  or  place  pro- 
vided for  him,  must  maintain  control  of  the 
horses  and  car,  and  must  exercise  a  reason- 
able degree  of  care  and  watchfulness  to  pre- 
vent collisions  and  injury  to  persons  cross- 
ing or  traveling  on  the  streets.  Brooks  v. 
Lincoln  St.  R.  Co.,  37  Am.  &*  Eng.  R.  Cas. 
560,  22  Neb.  816,  36  N.  W.  Rep.  529. 

A  street-car  company  is  bound  to  use 
such  diligence  as  will  enable  it  to  know 
whether  the  track  in  front  of  a  moving  car 
is  clear,  and  if  necessary  to  use  the  highest 
degree  of  diligence  to  know  that  fact.  The 
care  necessary  to  avoid  injury  to  one  on  the 
track  before  an  advancmg  train  embraces 
every  degree  of  diligence.  Galveston  City  R. 
Co.  v.  Hewitt,  67  Tex.  473,  3  S.  W.  Rep.  705. 

It  is  the  duty  of  a  driver  of  a  street-car  to 
exercise  the  highest  degree  of  cure  to  avoid 
any  collision  or  accident,  especially  at  street 
crossings;  his  first  and  highest  duty  is  to 
secure  the  sefetyof  his  passengers,  and  for 
that  purpose  he  should  exercise  all  the  care 
that  piudence  may  suggest  in  looking  about 
and  listening  so  as  to  assure  himself  that 
his  track  is  clear  and  safe,  and  for  his 
failure  to  do  so  his  employer  is  responsible. 
Heucke  v.  Milwaukee  City  R.  Co.,  69  Wis. 
401,  34  A^.  W.  Rep.  243. 

454.  in  operatiugr  cars.  —  The 

owners  of  street  railroads  are  held  to  due 
care  in  the  management  of  their  lines ;  and 
if  they  exercise  such  care,  they  are  not  re- 
sponsible to  a  pedestrian  who,  in  a  careless, 
reckless,  or  absent>minded  way,  walks  sud- 


denly in  front  of  a  moving  car,  and  is  in- 
jured before  there  is  time  to  stop  it.  Drit" 
coll  V.  Market  St.  Cable  R.  Co.,  97  Co/. 
SS3.  32  Pac.  Rep.  591. 

An  instruction  in  an  action  against  a 
street-car  company  that  "  the  defendant  had 
no  right  so  to  occupy  the  street  and  use 
the  same  with  its  cars  as  to  make  it  ex- 
tremely dangerous  to  cross  the  street  at  all 
times"  has  relation  to  the  manner  of  per- 
forming the  car  service  on  a  street,  and, 
fairly  construed,  does  not  mean  that  the 
defendant  had  no  right  to  run  so  many  cars 
as  it  did  there.  McClain  v.  Brooklyn  City  R. 
Co.,  40  Am.  &*  Eng.  R.  Cas,  254,  ii6A^.  K. 
459,  22  N.  E.  Rep.  1062,  27  A'.  V.  S.  R.  549; 
affirming  42  Hun  657,  mem.,  6  A^.  Y.  S.  R.  49. 

455.  May  assume  that  track  Mrill 
not  be  suddenly  obstructed.  —  The 
persons  in  charge  of  a  street-car,  upon  a 
clear  track,  where  there  is  no  negligence  on 
their  part,  have  a  right  to  assume  that  peo> 
pie  will  not  suddenly  cross  in  front  of  it. 
Driscoll  V.  Market  St.  Cable  R.  Co.,  97  Cal. 
553.  32  Pac.  Rep.  591. 

456.  Mutual  rights  of  company 
anil  public  in  street.— A  company  may 
run  its  cars  at  any  rate  of  speed  convenient 
to  it  and  not  dangerous  to  passengers  and 
the  public  along  the  track  ;  and  other  par- 
ties have  the  right  to  drive  along  the  street 
and  cross  and  recross  the  track,  using 
proper  care  and  prudence  to  keep  out  of 
the  way  of  the  cars.  Citizens'  St.  R.  Co.  v. 
Steen,  igAm.  &>  Eng.  R.  Cas.  30,  42  Ark.  321. 

While  a  company  has  a  right  to  run  its 
cars  on  a  public  street,  yet  the  public  have 
also  a  right  to  travel  thereon,  and  the  com- 
pany must  exercise  such  care  and  precau- 
tion, for  the  purpose  of  avoiding  accidents 
and  endangering  property  or  person,  as  a 
reasonable  prudence  would  suggest.  It  has 
only  an  equal  right  with  the  traveling  pub- 
lic to  the  use  of  the  street  where  its  track  is 
laid,  with  a  few  exceptions,  such  as  that 
the  cars  run  on  a  track,  and  when  a  vehicle 
meets  a  car  it  must  give  way.  A  person  is 
entitled  to  walk  on  a  street-railroad  track, 
using  reasonable  care  and  prudence  to  avoid 
injuries ;  but  he  is  not  required  to  abandon 
the  track  in  order  to  avoid  possible  injuries 
which  may  result  from  the  carelessness  of 
the  company,  and  if  he  is  injured  by  the 
carelessness  of  the  company  wi^ac  walking 
on  the  track,  the  fact  that  he  might  have 
walked  by  the  side  of  the  track  does  not 
show  contributory  negligence  on  his  part. 


STREET   RAILWAYS,  457,  468. 


513 


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use 
ex- 
it all 


Shea  V.  Potrero  &*  B.  V.  R.  Co.,  44  Cal.  414, 

5  Am.  Ry.  Rtp.  448.— APPROVED  IN  Memphis 
City  R.  Co.  V.  Logue,  13  Lea  (Tenn.)  32. 

An  instruction  that  "no  matter  how 
many  cars  were  in  the  street  or  where  the 
point  was,  the  plaintiff  had  a  right  to  select 
any  point  to  go  across,  but  he  was  bound  to 
exercise  care  commeasurable  with  the  cir- 
cumstances of  the  case,"  only  imports  that 
plaintiff's  right  to  cross  the  street  was  no 
less  at  one  than  at  another  point,  and  that 
it  was  for  him  to  determine  where  he  would 
seek  to  exercise  the  right  to  do  so,  and  is 
not  erroneous  as  justifying  the  inference 
that  plaintiff  was  at  liberty  to  encounter 
apparent  danger,  or  that  his  right  upon  the 
street  was  superior  to  that  of  defendant  in 
the  operation  of  its  cars.  McClain  v.  Brook- 
lyn City  R.  Co.,  40  Am.  &*  Eng.  R.  Cas. 
254,  116  N.  Y.  459,  22  N.  E.  Rep.  1062,  27 
N.  Y.  S.  R.  549 ;  affirming  42  Hun  657,  mem., 

6  N.  Y.  S.  R.  49. 

If  one  is  on  a  street,  where  he  has  a  legal 
right  to  be,  in  passing  over  it,  it  is  the  legal 
duty  of  the  driver  of  a  car  approaching  him 
to  make  a  vigilant  use  of  his  senses  to  dis- 
cover whether  the  party  is  in  a  position  of 
peril,  and  to  control  the  movement  of  his 
car,  so  far  as  possible,  to  avoid  injury  to 
him.  Watson  v.  Broadway  Sf  S.  A.  R.  Co., 
6  N.  Y.  S.  R.  538,  43  Hun  636,  mem.  ;  af- 
firmed in  1 10  N.  Y.  677,  mem.,  18N.E,  Rep. 
482,  mem. 

In  an  action  for  negligently  running  a 
car  into  plaintiff's  cab,  it  appeared  that 
plaintiff's  driver  temporarily  stopped  on  de- 
fendant's track  to  receive  directions  and 
while  there  met  with  the  accident.  There 
were  snowbanks  on  each  side  of  the  street, 
which  prevented  a  nearer  approach  to  the 
sidewalk.  Plaintiff's  driver  did  not  see  the 
car  and  had  no  warning  of  its  approach. 
He/d,  that  it  was  a  case  for  the  jury,  on  the 
question  of  negligence,  and  as  the  verdict 
was  sustained  by  the  evidence,  the  damages 
inexcessive,  and  no  errors  committed,  the 
judgment  should  be  affirmed.  Mullen  v. 
Central  Park  6-  E.  R.  R.  Co.,  49  A^.  Y.  S.  R. 
80,  21  A':  Y.  Supp.  loi,  1  Misc.  216. 

A  street  railway  and  a  person  going  on 
foot  having  each  the  right  of  way  along  a 
public  highway,  each  is  bound  to  be  on  the 
lookout  for  the  other;  but,  as  the  car  is 
necessarily  confined  to  its  track,  the  right 
thereon  of  the  person  on  foot  is  subordinate 
to  that  of  the  company.  Warner  v.  People's 
St,  R,  €«.,  141  Pa.  5/.  615,  21  Atl.  Rep.  737. 
7  D.  R.  D.— 33 


457.  Degree  of  care  individaal 
must  exercise  in  crossing  traclc.  — 

The  degree  of  care  required  at  the  crossing 
of  a  highway  and  an  ordinary  steam  rail- 
road is  not  the  test  of  care  required  in 
crossing  the  track  of  a  street  railroad  on  a 
public  street.  Hence  the  rule  in  the  former 
case  that  one  approaching  the  crossing 
must  look  up  and  down  the  track  before 
attempting  to  cross  is  not  necessarily  appli- 
cable to  the  latter.  The  failure  to  do  so  is 
not,  as  a  matter  of  law,  negligence.  Shea  v. 
St.  Paul  City  R.  Co.,  50  Minn.  395,  5a  AT. 
W.  Rep.  902. 

A  person  in  attempting  to  cross  a  city 
street  is  bound  to  exercise  reasonable  care 
and  caution,  and  it  is  the  duty  of  a  street- 
car company  so  to  run  its  cars  as  to  avoid, 
by  the  exercise  of  ordinary  prudence  and 
caution,  injury  to  pedestrians.  Wall  v. 
Helena  St.  R.  Co.,  50  Am.  6»  Eng.  R.  Cas. 
474,  12  Mont.  44,  29  Pac.  Rep.  721. 

A  traveler  upon  a  street  on  which  is  a 
street  railway  has  a  right  to  drive  upon  and 
along  the  railway,  as  well  as  to  cross  it  at 
the  intersection  of  streets ;  but  he  is  bound 
to  make  way  for  the  cars,  and  to  be  ready 
to  do  this  when  necessary,  so  as  to  cause 
no  unnecessary  hindrance.  It  is  his  duty, 
therefore,  not  only  to  turn  off  from  the 
'  track  when  called  upon  by  a  servant  of  the 
railway  company,  but  to  listen  to  whatever 
signal  there  may  be  from  an  approaching 
car ;  and  he  should  also  look  behind  him 
from  time  to  time,  so  that  he  may,  if  a  car 
is  near,  turn  off  and  allow  it  to  pass  with- 
out hindrance  or  undue  slackening  of  or- 
dinary speed.  (Andrews,  Earl,  and  Dan- 
forth,  JJ.,  dissenting.)  Adoiph  v.  Central 
Park,  N.  &*  E.  R.  R.  Co.,  j6  N.  Y.  530; 
affirming  it  /.  &*  S.  199.—  Followed  in 
Eastern  Distilling  Co.  v.  Long  Island  R. 
Co.,  8  N.  Y.  S.  R.  896,  mem. 

458.  Colliding  with  teams.  — It  is 
proper  to  instruct  a  jury  that  if,  by  reason 
of  inattention,  carelessness,  or  incompe- 
tency, the  driver  of  a  street-car  fails  to  avoid 
a  collision  with  a  wagon  upon  the  track,  the 
company  is  responsible  for  an  injury  there- 
by occasioned  to  the  occupant  of  the  wagon, 
if  there  is  no  contributory  negligence  upon 
the  part  of  the  occupant  or  the  driver  of  the 
wagon.  Swain  v.  Fourteenth  St.  R.  Co.,  93 
Cal.  179,  28  Pac.  Rep.  829. 

Where  the  driver  of  a  street-car  negli- 
gently runs  against  a  horse  and  carriage  in 
the  street,  the  company  is  not  relieved  from 


su 


STREET   RAILWAYS,  409-404. 


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liability  by  the  fact  that  the  damages  were 
increased  by  a  movement  of  the  horse  after 
the  collision.  Albtrt  v.  Blucktr  St.,  etc.,  A'. 
Co..  i  Daly  {N.  K.)  389. 

A  company  furnishing  horses  and  a  driver 
to  move  a  car  belonging  to  another  com* 
pany  is  liable  for  negligently  colliding  with 
a  team  on  the  street.  IVeyant  v.  New  York 
6-  H.  R.  Co.,  3  Dutr  (N.  Y.)  360.— Follow- 
ing Laugher  v.  Pointer,  $  B.  &  C.  560; 
Quarman  v.  Burnett,  6  M.  &  W.  499;  Rap- 
son  V.  Cubitt,  9  M.  &  W.  710;  Allen  v. 
Hayward,  7  Q.  B.  960.— Applied  in  Ohio 
&  M.  R.  Co.  V.  Davis,  23  Ind.  553. 

450.  Duty  to  light  cars  so  they  can 
be  seen.* — A  street-car  ought  to  be  lighted 
in  the  night-time,  so  that  its  approach  can 
be  seen  by  other  travelers;  and  between 
twilight  and  dark,  if  not  lighted,  it  ought 
to  be  run  so  slowly  as  to  avoid  collision,  or 
else  by  some  signal  give  warning  of  its  ap- 
proach. Kascher  v.  East  Detroit  &»  G.  P. 
a.  Co.,  90  Mich.  413.  51  N.  W.  Rep.  463. 

460.  Defects  in  street.  —  A  street- 
railroad  corporation  operating  its  road  in  a 
city  street  is  under  an  implied  obligation  so 
to  construct  and  maintain  its  tracks  as  that, 
by  the  exercise  of  reasonable  care  and  super- 
vision on  its  part,  no  danger  may  be  occa- 
sioned to  the  public  in  its  use  of  the  street, 
whether  the  travel  be  on  foot  or  in  vehicles. 
Schild  V.  Central  Park,  N.  ^  E.  R.  R.  Co., 
133  N.  Y.  446.  y  N.E.  Rep.  327,  45  N.  Y. 
S.  R.  656 ;  affirming  62  Hun  620,  mem.,  41 
N.  Y.  S.  R.  795,  16  N.  Y.  Supp.  701. 

A  company  which  has  accepted  from  a 
city  a  grant  of  a  right  of  way  over  its  streets, 
with  the  condition  that  the  company  shall 
keep  all  street  crossings  on  streets  used  by 
it  in  good  condition,  is  liable  for  a  personal 
injury  by  reason  of  a  defective  crossing,  and 
it  is  the  proper  party  to  be  sued ;  and  this 
is  so  though  under  its  charter  the  city  itself 
was  not  liable  for  injuries  resulting  from 
defective  streets.  Houston  City  R.  Co.  v. 
Dawson,  2  Tex.  Unrep.  Cas.  223. 

401.  Bisrht  to  run  cars  as  aftect- 
Ingr  liability.  —  In  an  action  against  a 
street-car  company  for  injuring  a  person  in 
the  street  there  was  an  alleg»tion  that  the 
track  was  unlawfully  laid  on  the  side  of  the 
street,  the  statute  authorizing  it  only  in  the 
middle  of  the  street.  The  company  moved 
to  strike  out  this  allegation  on  the  ground 
that  it  was  irrelevant  and  immaterial.    Held, 

*  See  also /«x/,  471. 


that  plaintiff  had  a  right  to  make  an  issue 
on  this  point.  If  it  was  unlawfully  running 
its  cars  on  the  street,  this  would  have  a 
material  bearing  on  the  question  of  its 
liability.  SchierhoUi  v.  North  Beach  &*  M. 
R.  Co.,  40  Cal.  447. 

A  tramway  which  occasions  injury  be- 
cause its  rail  is  out  of  place  is  not  pro- 
tected  from  liability  for  damages  by  reason 
of  the  permission  of  the  city  to  operate  its 
road.  Dominguez  v.  Orleans  R.  Co.,  35  La. 
Ann.  751. 

402.  Accidental  injury.  —  A  street- 
car company  cannot  be  held  liable  for  kill- 
ing a  person  on  a  street  where  the  company 
is  free  from  negligence,  and  the  death  is 
caused  solely  by  the  person  accidentally 
falling  on  the  track.  Dorutan  v.  Broadway 
R.  Co.,  117  N.  Y.  655,  2  Silv.  App.  422,  23  N. 
E.  Rep.  162,  27  A'.  Y.  S.  R.  841 ;  reversing 
5  A'.  Y.  Supp.  769,  25  A^.  Y.  S.  R.  1009. 

Where  the  evidence  shows  that  a  boy  was 
killed  either  through  his  own  carelessness 
or  by  a  pure  accident  in  falling  in  front  of  a 
street-car,  the  company  cannot  be  held 
liable  in  either  event.  Fenton  v.  Second 
Ave.  R.  Co.,  4  Silv.  App.  380,  36  A';  Y.  S.  R. 
385.  26  A'.  E.  Rep.  967. 

403.  Measure  of  damages.  —  The 
measure  of  damages  for  an  injury  from  a 
collision  of  a  street-car  with  a  carriage  is  a 
fair  pecuniary  compensation  for  the  injuries 
sustained  by  the  occupant  and  his  property ; 
but  if  the  injury  be  also  wilful,  or  wanton, 
or  attended  by  such  gross  negligence  as 
manifests  a  careless  disregard  of  the  conse- 
quences to  plaintiff,  the  jury  may  add  such 
sum  as  they  think  proper  under  the  circum- 
stances as  vindictive  or  exemplary  damages, 
or  as  punishment  for  the  wrongful  conduct 
of  the  driver.  Citizens'  St.  R.  Co.  v.  Stten, 
19  Am.  &>  Eng.  R.  Cas.  30,  42  Arh.  321. 

Where  a  company  negligently  injures  a 
horse  belonging  to  an  expressman,  he  is 
entitled  to  a  reasonable  time  in  which  to 
secure  another  horse,  and  his  losses  of  profit 
in  his  business  during  that  time  are  allow- 
able as  damages.  What  is  a  reasonable 
time  is  for  the  jury.  Albert  v.  Bletcker  St., 
etc.,  R.  Co.,  2  Daly  (N.  Y.)  389. 

404.  AnioiLint  of  damages.— A  ver- 
dict for  $7500  for  damages  alleged  to  have 
been  sustained  by  plaintiff  through  the 
negligence  of  defendant  in  running  its 
street-car  against  a  police-patrol  wagon, 
plaintiff  being  at  the  time  an  officer  in 
charge  of  the  wagon,  in  which  he  was  con- 


STREET   RAILWAYS,  400,  4UO. 


515 


issue 
inning 
ave  a 
of  its 


veying  to  a  hospital  a  man  with  u  broken 
leg,  and  beipg  violently  thrown  to  the 
ground  by  the  cullision  and  seriously  in- 
jured, is  not  so  excessive  as  to  warrant  a 
new  trial.  Swain  v.  Fourttenth  St,  R,  Co., 
93  Cat.  179,  28  Pac.  Rtp.  829. 

b.  Negligence  of  Company. 

405.  Ill  gunoral.  —  Where  th  -  gist  of 
an  action  is  negligence  in  the  servants  of  a 
company,  whereby  plaintiff  was  carelessly 
run  over  and  injured,  it  is  error  to  modify 
an  instruction  asked  by  defendant,  sub- 
mitting the  question  of  negligence  fairly  to 
the  juiy,  by  submitting  other  matters  of 
inducement  merely,  and  not  of  the  substance 
of  the  charge,  and  which,  if  true,  would 
make  a  dilTerent  cause  of  action,  especially 
where  there  was  no  proof  of  such  other 
matter.  Chicago  \V.  D.  R.  Co.  v.  Hughei, 
6f)Ill.  170. 

Where  the  action  is  for  damages  occa- 
sioned by  a  collision  with  a  street-car,  the 
evidence  will  not  warrant  a  submission  to 
the  jury  where  the  right  of  recovery  is 
predicated  on  the  theory  that  defendant's 
driver  could  have  stopped  the  car  in  time 
to  avert  the  injury  after  he  saw,  or  by  the 
exercise  of  ordinary  diligence  could  have 
seen,  the  perilous  position  of  plaintiff,  and 
there  is  no  evidence  whatsoever  of  the  space 
within  which  the  car  could  have  been 
stopped,  nor  as  to  the  distance  of  plaintiff 
from  the  car  when  plaintiff's  peril  could 
first  have  been  observed.  Zurfluh  v.  People's 
R.  Co.,  46  Mo.  App.  636. 

A  charge  that  the  highest  degree  of  care 
is  required  of  a  driver  who  sees  a  child 
lying  helpless  on  the  track  in  front  of  the 
vehicle  is  not  reversible  error,  where  it  does 
not  appear  that  the  driver  saw  the  child  at 
all  until  after  the  accident.  Giraldo  v.  Coney 
Island  &'  B.  R.  Co.,  42  A^.  Y.  S.  R.  915,  16 
A';  V.  Supp.  774,  62  A'mm  620,  mem.;  af- 
firmed in  135  A';  Y.  648,  mem.,  48  A^.  Y.  S. 
R.  931,  mem. 

If  an  adult  person  be  seen  on  the  track, 
the  person  operating  a  car  may  assume  (as 
long  as  the  danger  of  injuring  him  by  a 
moving  car  does  not  appear  imminent,  but 
no  longer)  that  he  will  leave  the  track  before 
the  car  reaches  him.  When  the  danger  is 
imminent,  then  the  duty  on  the  part  of  the 
carrier  is  to  use  the  highest  degree  of  care 
to  avert  it.  A  failure  to  do  this  is  culpable 
negligence,  in  the  absence  of  contributory 


negligence.  Galveston  City  R.  Co.  v.  Hewitt, 
67  Tex.  473,  3  S.  W.  Rep.  705. 

400.  Duty  of  driver  to  keep  vigi- 
lant lookout  ahead.— It  is  the  duty  of 
a  driver  of  a  street-car  to  observe  what  is 
in  the  road  before  him,  so  as  to  avoid  in- 
flicting injuries  upon  others  if  practicable; 
and  he  is  guilty  of  negligence  if  he  omits, 
without  apparent  excuse,  to  look  ahead  and 
observe  whether  or  not  the  track  is  clear. 
Swain  v.  Fourteenth  St.  R.  Co.,  93  Cal.  179, 
28  /'<!<.  Rep.  829. 

The  driver  of  a  street-car  should  be  in  a 
place  and  in  a  condition  to  exercise  a  rea- 
sonable degree  of  care  and  vigilance  in 
watching  and  observing  the  street  ahead  of 
him,  so  as  to  prevent  collisions  and  avoid 
injury  to  pedestrians,  children  as  well  as 
adults,  who  may  be  upon  the  public  viay. 
Anderson  v.  Minneapolis  St.  R.  Co.,  43  Am. 
&*  Eng.  R.  Cas.  294,  42  Minn.  490,  44  N. 
W.  Rep.  518. 

A  driver  may  have  been  performing  his 
duty  to  his  employer,  such  as  making 
change  for  a  passenger,  at  a  time  when  he 
should  have  been  watchful  of  the  rights 
and  careful  of  the  safety  of  others ;  but 
such  fact  will  not  relieve  the  employer 
from  a  charge  of  negligence  where  it  ap- 
pears that,  had  not  the  driver's  attention 
been  engrossed  by  the  duty  imposed  by  his 
employer,  he  could  have  avoided  the  acci- 
dent. The  duty  which  a  car  company  and  its 
employes  owe  to  the  public  is  paramount  to 
that  which  they  owe  each  other.  Anderson 
v.  Minneapolis  St.  R.  Co.,  43  Am.  &*  Eng.  R. 
Cas.  294,  42  Minn.  490,  44  A^.  IV.  Rep.  518. 

Reasonable  care  rtqi.  >  qs  a  driver  to  keep 
a  vigilant  watch  for  all  vehicles  and  persons 
on  foot,  especially  children,  either  on  the 
track  or  moving  towards  it,  and  on  the  first 
appearance  of  danger  to  such  persons  to 
use  all  reasonable  efforts  to  avoid  injuring 
them.  Senn  v.  Southern  R.  Co.,  108  Mo.  142, 
18  S.  W.  Rep.  1007. 

The  driver  of  a  street-car  should  not 
drive  along  the  streets  of  a  city  without 
looking  out  for  persons  in  the  street.  If  he 
fails  to  look  and  an  accident  happens  in  con- 
sequence, he  is  chargeable  with  negligence. 
He  is  bound  to  be  vigilant  to  discover  any 
one  exposed  to  danger,  and  to  control  his 
team  ^o  as  to  avoid  danger ;  and  the  neces- 
sity of  making  change  for  passengers  will 
not  excuse  an  omission  of  this  duty.  Hy- 
landy.  Yonkers  R.  Co..  13  N.  Y.S.  R.  824, 
48  Hun  617,  \  N.   Y.  Supp.  363. 


ftl« 


STREET   RAILWAYS,  467,  468. 


When  a  city  ordinance  under  whicli  a 
•treet-car  company  is  incorporated  niaites  it 
the  duty  of  the  driver  of  a  car  to  keep  a 
vigilant  luoicout  for  all  persons  approach- 
ing the  track,  and  to  stop  the  car  on  the 
first  appearance  of  danger,  a  failure  to  per- 
form this  duty,  followed  by  injury  to  one 
near  the  track,  is  of  itself  an  act  of  negli- 
gence. Hayi  V.  GatHtsvilU  St.  Ji,  Co.,  34 
Am.  A-  Eng.  R.  Cas.  97,  70  7>.r.  602,  8  S. 
W.  Rep.  491.— Distinguished  in  Faih  v. 
Tower  Grove  &  L.  R.  Co.,  105  Mo.  537. 

If  a  company  imposes  upon  its  drivers 
other  duties  which  materially  interfere 
with  their  performance  of  the  duty  of 
keeping  a  constant  watch  of  the  track  and 
of  people  approaching  it,  in  order  tu  pre- 
vent accidents,  and  if  an  injury  results 
which  could  otherwise  have  been  avoided, 
it  is  negligence.  Dahl  v.  Milwaukee  City 
R.  Co.,  65  Wis.  371.  27  N.  \V.  Rep,  185. 

407. but  nut  at  cither  Hide  or 

roar. — The  evidence  tended  to  show  that 
the  driver  of  a  street-car  was  on  the  look- 
out and  kept  a  very  close  watch  on  the 
track,  and  all  obstructions  ;  but  a  child  ap- 
proached the  car  diagonally  from  the  rear, 
and  fell  under  it,  and  the  hind  wheel  passed 
over  her,  killing  her  instantly.  The  driver 
stood  on  the  front  platform  and  could  not 
see  the  position  of  the  child.  Held,  that  he 
had  discharged  his  duty,  and  that  a  nonsuit 
was  properly  allowed.  Bulger  v.  Albany 
R.  Co.,  42  A^.  Y.  459. 

It  is  not  actionable  negligence  in  the 
driver  of  a  horse-car  to  fail  to  prevent  a 
horse  from  approaching,  unseen  by  him,  the 
side  of  the  car,  after  the  front  part  of  the 
car  has  passed,  so  as  to  receive  injuries 
from  the  rear  wheel  of  the  car  on  that  side. 
Lawrence  v.  Pendleton  St,  R.  Co.,  i  Cin, 
Super.  Ct.  180.— Reviewing  Bulger  v.  Al- 
bany R.  Co.,  42  N.  Y.  459. 

But  if,  as  the  car  is  passing,  the  driver 
sees  a  horse  loose  in  the  street,  danger- 
ously near  to  and  approaching  the  track 
backward,  retreating  from  a  boy  who  is 
endeavoring  to  get  control  of  him,  it  is 
his  duty  to  stop  the  car;  and  if  he  goes 
on,  and  the  horse  is  injured  by  the  rear 
wheel  of  the  car,  the  company  is  liable 
unless  plaintiff  has  been  guilty  of  con- 
tributory negligence;  in  such  a  case  it  is 
a  question  for  the  jury  to  decide  whose 
negligence  actually  caused  the  injury. 
Lawrenct  v.  Pendleton  St.  R.  Co.,  I  Cin. 
Super.  Ct.  180. 


468.  Defects  in  track.*— In  an  action 
to  recover  for  a  personal  injury  received  by 
being  thrown  from  a  wagon  in  attempting 
to  cross  defendant's  track,  defendant  having 
permitted  its  rails  to  remain  too  high  above 
the  level  of  the  street,  an  instruction  tluit 
plaintiff  could  not  recover  unless  tliu  injury 
was  inflicted  "  wilfully"  is  error.  Stratton 
V.  Central  City  Horse  R.  Co.,  1  Am,  &^  Eng. 
R.  Cas.  115,  95  ///.  25. 

In  an  action  for  injuries  sustained  while 
driving  in  the  streets  by  the  dangerous  con- 
dition of  a  street-railway  truck,  plaintifl't 
evidence  was  sufficient  to  sustain  a  verdict 
in  his  favor.  Lowe  v.  Minneapolis  St,  R.  Co., 
37  Minn.  283.  34  A'.   IV.  Rep.  33. 

Plaintiff's  sleigh  was  upset  by  striking 
against  u  switch  maintained  by  defendant, 
laid  ill  a  public  city  street,  and  rising  above 
the  level  of  the  abutting  street  pavement. 
The  evidence  tended  to  show  that  accidents 
had  not  infrequently  happened  to  vehicles 
passing  there,  and  that  by  putting  salt  on 
its  track  defendant  had  caused  slush  from 
melted  snow  to  run  down  to  and  cover  the 
switch  from  sight.  Held,  that  this  was  suf- 
ficient to  warrant  the  submission  of  the 
question  of  defendant's  negligence  to  the 
jury.  Wooley  v.  Grand  St.  &*  N.  R.  Co.,  3 
Am.  &'  Efig.  R.  Cas.  398,83  N.  K.  121.— 
Distinguishing  Lowery  v.  Brooklyn  City 
&  N.  R.  Co.,  76  N.  Y.  28.— Quoted  in 
Fitts  V.  Cream  City  R.  Co.,  15  Am.  &  Eng. 
R.  Cas.  462,  59  Wis.  323. 

It  was  shown  that  the  switch  was  main« 
tained  by  defendant,  which  had  the  direc- 
tion and  duty  whether  it  should  be  changed 
or  altered  in  its  relation  to  the  surrounding 
pavement.  Defendant's  counsel  requested 
the  court  to  charge  that  if  the  switch  was 
properly  put  down  defendant  was  not 
chargeable.  The  request  was  refused,  but 
the  court  charged  that  if  the  switch  was 
skilfully  put  down  and  was  in  itself  no  ob- 
struction which  a  person  could  not,  with 
ordinary  care  and  prudence,  avoid,  the  prop- 
osition would  be  correct.  Held,  no  error ; 
that  the  request  should  have  included  the 
condition  of  defendant's  keeping  the  switch 
in  a  safe  condition.  Wooley  v.  Grand  St. 
<S-  N.  R,  Co.,  3  Am.  &*Eng.  R.  Cas.  398,  83 
A^.  Y.  121. 

Plaintiff,  in  crossing  defendant's  track, 
struck  his  foot  against  one  of  the  rails,  fell, 

*  Injuries  to  vehicles  caused  by  defective 
street-railway  tracks,  see  46  Am.  k  Eno.  R.  Cas. 
305,  abstr. 


STREET   RAILWAYS,  400-472. 


617 


and  was  injured.  Plaintifl's  evidence  was 
to  the  effect  that  the  top  of  the  rail  was 
over  two  inches  above  the  surface  of  tiie 
street.  Defendant  gave  evidence  to  the 
effect  that  the  track,  when  laid,  whidi  was 
about  ten  years  prior  to  the  accid".  t,  was 
level  with  the  street.  Held,  that  the  ques- 
tion as  to  defendant's  negligence  was  prop- 
criy  submitted  to  the  jury;  and  that  the 
fact  that  it  did  not  appear  that  any  com- 
plaint had  been  made  to  defendant  or  to  the 
public  authorities  did  not  release  it  from 
liability.  Schildv.  Central  Park,  N.  6-  E, 
Ji.  A'.  Ca.,  133  N.  Y.  446,  31  N.E.  Rtp.  327, 
45  A'.  Y.  S.  R,  656 ;  affirming  62  Hun  620, 
41  A'.  K.  S.  R.  795.  16  A'.  Y.  'Supp.  701. 

A  company  is  liable  for  injuries  caused  to 
a  person  driving  along  the  track  by  an  up- 
turned rail  which  has  become  loose  through 
failure  to  keep  the  track  in  proper  repair. 
liradwelt  v.  Pittsburgh  &>  PV.  E.  Pass.  R. 
Co.,  1 53  Pa.  St,  105, 25  At/.  Rep.  623 ;  former 
appeal  139  Pa.  St.  404,  20  Atl.  Rep.  1046. 

Where  plaintiff  is  rightfully  driving  on  a 
street  across  a  track,  and  in  so  doing  exer- 
cises due  care,  and  is  injured  by  reason  of 
the  negligence  of  the  company  in  the  con- 
struction of  its  track,  or  in  suffering  it  to 
become  out  of  repair  and  dangerous,  the 
company  is  liable,  notwithstanding  the  city 
had  directed  and  agreed  to  such  negligence 
and  approved  it.  Houston  City  St,  R.  Co.  v. 
Delesdernier,  84  Tex.  82,  ig  S,  W.  Rep.  366. 

400.  and  highway. — In  an  action 

to  recover  for  personal  injuries  caused  by 
the  dangerous  condition  of  a  turnpike  road 
occupied  by  defendant's  tracks,  it  is  proper 
to  submit  the  case  to  the  jury,  where  there 
is  evidence  that  the  repairs  of  the  road  were 
under  the  immediate  charge  of  the  officers 
of  defendant,  although  paid  for  by  the  turn- 
pike company,  and  that  the  railway  was  in 
actual  operation  by  the  company  at  the 
time  of  the  accident.  Wagner  v.  Pittsburgh 
&*  IV.  E.  Pass.  R.  Co.,  158  Pa.  St.  419,  27 
Atl.  Rep.  1008. 

Where  street-cars  are  run  over  a  turnpike 
ro:id  that  is  out  of  repair,  it  is  the  duty  of 
the  company  to  give  adequate  warning  to 
the  public  of  the  dangerous  condition  of 
the  road.  Wagner  v.  Pittsburgh  &*  W.  E. 
Pass.  R.  Co.,  1 58  Pa.  St.  419, 27  Atl.  Rep.  1008. 

470.  Defects  in  cam.— If  n  person  on 
the  street  is  injured  through  a  defect  in  a 
street-car,  the  company  using  it  cannot 
avoid  liability  by  showing  that  it  belonged 
to  another  company.    Jetter  v.  Ne^n  York 


&*  H.  R.  Co..  2  Abb.  App.  Dee.  {N.  Y.)  458. 
2  R'eyes  154.  —  Rkvikwkd  in  Gottlieb  7>. 
New  York.  L.  E.  &  W.  R.  Co.,  24  Am.  A 
Eng.  R.  Cas.  421,  100  N.  Y.  462.  3  N.  E. 
Rep.  344. 

471.  Failure  to  light  cars.*  —  Plain- 
tiff's testator  was  found  dead  on  a  street-car 
track  where  a  sewer  was  in  process  of  con- 
struction. There  were  no  eyewitnesses  to 
the  occurrence,  but  the  circumstances 
tended  to  show  that  he  had  fastened  his 
horse,  and  was  groping  in  the  dark  to  find 
a  safe  passage  when  he  was  struck  by  de- 
fendant's car,  which  was  running  without 
lights  or  bells.  Held,  that  there  was  suffi- 
cient 'vidence  of  negligence  to  justify  the 
court  in  refusing  a  nonsuit  and  submitting 
the  case  to  the  jury.  Johnson  v.  Hudson 
River  R.  Co.,  20  JV.  Y.  65  ;  affirming  6  Duer 
633.— Approved  in  Memphis  City  R.  Co., 
V.  Logue,  13  Lea(Tenn.)  32. 

It  is  not  error  in  such  a  case  to  charge 
that,  to  exonerate  the  defendant,  the  negli- 
gence of  the  plaintiff  must  be  such  as  con- 
tributed directly  to  the  Injury.  The  word 
"directly," under  the  circumstances,  is  in- 
significant. Johnson  v.  Hudson  River  R. 
Co.,  20  A^.  1'.  65  ;  affirming  6  Duer  633. — 
Distinguished  in  Weber  v.  New  York  C. 
&  H.  R.  R.  Co.,  58  N.  Y.  451. 

A  company  is  bound  to  exercise  such  care 
and  caution  to  avoid  accidents  to  persons 
and  property  on  the  street  as  reasonable 
prudence  may  suggest ;  but  a  court  is  not 
authorized  in  instructing  a  jury  that  it  is 
bound  "to  furnish  lights  on  its  cars  at  night 
such  as  will  enable  its  drivers  to  see  objects 
ahead  on  the  track,  with  the  aid  of  the 
street  lights,  in  time  to  avoid  an  accident." 
This  imposes  a  higher  duty  than  the  law 
requires.  Memphis  City  R.  Co.  v.  Logue,  13 
Lea  (Tenn.)  32— Quoting  Louisville  &  N. 
R  Co.  V.  Melton,  2  Lea  262. 

472.  Employing  incompetent  or 
drnnlcen  driver. — Where  plaintiff  claims 
that  his  injury  was  caused  by  the  negligent 
management  of  a  car,  due  to  the  driver's 
intoxication,  it  is  competent  to  prove  other 
acts  of  carelessness  on  the  same  trip,  tend- 
ing to  show  that  he  was  intoxicated  such  as 
that  he  missed  a  switch  at  one  place,  drove 
at  a  rapid  speed,  and  failed  to  respond  to 
the  conductor's  signal  to  stop  at  another. 
Such  evidence  is  often  the  best  proof  of  in- 
toxication ;  but  it  is  also  competent  to  prove 


•  See  also  anie,  4SO. 


618 


STREET   RAILWAYS,  473,  474. 


I* 

I 


Ifi^ 


that  he  was  seen  to  drink  at  a  saloon  just 
before  starting.  Pyne  v.  Broadway  &*  S. 
A.  K.  Co..  46  N.  Y.  S.  A\  662. 19  iV.  V.  Supp. 
ai7;  affirmed  in  138  N.  V.  627,  51  A^.  V.  S. 
^-  934-  33  ^-  ^-  ^'P-  '083.  —  Quoting 
Reichman  v.  Second  Ave.  R.  Co.,  15  N.  Y. 
S.  R.  928. 

In  an  action  for  personal  injuries  sus- 
tained through  the  negligence  of  a  driver  in 
defendant's  employ,  an  instruction  that  if 
any  one  is  injured  by  the  failure  of  defend- 
ant to  employ  skilful  and  prudent  drivers, 
defendant  is  liable,  but  that  the  fact  that  a 
driver  might  have  been  cureless  or  impru- 
dent at  other  times  would  not  render  the 
company  liable  unless,  on  the  occasion  of 
the  injury  sued  for,  such  driver  was  careless, 
reckless,  or  imprudent,  is  argumentative 
and  improper.  Hays  v.  Gainesville  St.  A\ 
Co.,  34  Am.  &•  Eng.  R.  Cas.  97,  70  Tex.  602, 
8  S.  W.  Rep.  491. 

473.  Colliding  with  teains.'^— Where 
the  action  is  to  recover  damages  caused  by 
a  street-car  colliding  with  plaintiff's  wagon, 
and  the  evidence  as  to  the  negligence 
charged  on  both  sides  is  conflicting,  the 
jury  are  the  proper  persons  to  fix  the  negli- 
gence, and  their  verdict  will  not  be  inter- 
fered with.  Chicago  City  R.  Co.  v.  Brady, 
35  ///.  App.  460. 

In  an  action  against  a  company  by  the 
driver  of  a  dray,  to  recover  damages  for 
personal  injuries,  the  testimony  of  plaintiff 
showed  no  negligence  on  the  part  of  the 
company's  employes,  but  merely  a  miscalcu- 
lation  of  distance  on  the  part  of  both  plain- 
tiff and  the  driver  of  the  car.  Held,  that  it 
was  not  error  to  enter  a  judgment  of  non- 
suit. Patton  V.  Philadelphia  Traction  Co., 
132  Pa.  St.  76,  20  At  I.  Rep.  682. 

The  evidence  for  plaintiff  tended  to  show 
that  he  hitched  his  horse  and  wagon  near  a 
curbstone  where  there  was  not  room  enough 
for  a  car  to  pass  without  hitting  the  wagon, 
and  that  a  motorman,  disregarding  his  sig- 
nal to  stop  the  car  until  he  could  unhitch 
his  horse,  drove  the  car  into  the  wagon,  and 
caused  the  injuries  complained  of.  The 
evidence  for  defendant  tended  to  show  that 
there  was  sufficient  room  for  the  car  to 
pass,  but  that  the  horse  becc.me  frightened, 
and  turned  the  wagon  so  that  it  was  struck. 
Held,  that  the  case  was  for  the  jury.    Kest- 


*  Liability  'A  street-car  companies  (or  collid- 
ing with  veViicles.  Duty  ot  diiver,  see  56  Am. 
&  Eng.  R.  Cas.  608,  abstr. 


ner  v.  Pittsburgh  &*  B.  Traction  Co.,  158  Pa. 
St.  422,  27  Atl.  Rep.  1048. 

A  jury  is  not  authorized  to  infer  negli- 
gence on  the  part  of  a  street-car  company 
from  mere  proof  that  plaintiff's  team  col- 
lided with  a  car.  North  Side  St.  R.  Co.  v. 
Want,  4  Tex.  App.  (Civ.  Cas.)  237,  l^S.  IV. 
Rep.  40, 

474.    while    driving     along 

track.* — Where  it  appears  that  plaintiff's 
wagon  and  defendant's  horse-car  were  ap- 
proaching each  other  on  the  same  track, 
and  several  witnesses  testify  that  the  car  was 
being  driven  at  an  unusual  rate  of  speed, 
and  that  the  car  driver  was  not  looking  at 
the  track,  but  had  his  head  turned  away, 
and  that  he  was  so  inattentive  that,  although 
one  witness  called  to  him,  and  his  hand  was 
on  the  brake,  he  made  no  effort  whatever  to 
cheek  the  speed  of  the  car.  and  the  driver 
contradicts  such  testimony,  the  case  ought 
to  be  left  to  the  jury  upon  the  conflicting 
evidence.  North  Hudson  County  R.  Co.  v. 
Islcy,  34  Am.  &•  Eng.  R.  Cas.  94, 49  N.  J.  L. 
468,  10  Atl.  Rep.  665,  9  Cent.  Rep.  122. 

Plaintiff  was  injured  while  driving  on  de- 
fendant's tracks.  He  testified  that  while 
turning  out  to  allow  a  car  to  pass,  the  rear 
of  his  cart  was  struck  by  the  car,  and  he 
was  thrown  out  and  injured  ;  that  he  looked 
for  the  car  shortly  before,  and  was  listening 
for  it  up  to  the  time  he  became  aware  of  its 
approach.  Defendant's  driver  testified  that 
he  saw  plaintiff  when  thirty-five  feet  distant 
and  called  to  him,  put  on  the  brakes  fifteen 
feet  away,  but  wait  unable  to  avoid  a  colli- 
sion on  account  of  the  down  grade  and  the 
condition  of  the  tracks.  Held,  that  the 
questions  of  negligence  and  contributory 
negligence  were  properly  submitted  to  the 
jury.  Quinn  v.  Atlantic  Ave.  R.  Co.,  34  A'. 
Y.  S.  R.  801,  12  N.  Y.  Supp.  223 ;  affirmed 
in  134  N.  Y.  611,  mem,,  45  A^  Y.  S.  R.  935, 
mem.,  31  A^  E.  Rep.  629,  mem. — Followed 
IN  Witte  V.  Brooklyn  City  R.  Co.,  53  N.  Y. 
S.  R.  334. 

Plaintiff  was  driving  a  wagon  along  the 
tracks  of  defendant,  and  while  in  the  act 
of  turning  off  therefrom,  an  electric  car 
coming  from  behind  struck  the  hind  wheel 
of  his  wagon  and  overturned  it,  causing  the 
injuries  complained  of.  A  verdict  was 
rendered  for  plaintiff.    Held,  that  the  case 

*  Duty  to  avoid  injuries  to  other  vehicles  and 
pedestrians,  see  note,  19  Am.  &  Eng.  R.  Cas, 
127. 


STREET   RAILWAYS,  476,  476. 


519 


negli- 
)mpany 
am  col- 
Co.  V. 
SS.  IV. 

along 

laintifl's 

rete  ap- 

track, 

car  was 


was  properly  submitted  to  the  jury.  It  was 
the  duty  of  plaintiff  to  turn  off  seasonably 
to  avoid  the  car  approaching  from  the  rear, 
and  while  so  doing,  the  motorman  was 
bound  to  exercise  proper  care  to  avoid  a 
collision.  Witte  v.  Brooklyn  City  R.  Co., 
23  N.  Y.  Supp.  1028,  4  Misc.  286 ;  affirmed 
in  143  N.  Y.  667,  mem.,  39  N.  E.  Rep.  22. 

475. or  crossing  track.  —  Plain- 
tiff was  driving  along  a  track,  and  aimed  to 
turn  out  just  where  the  track  crossed  the 
track  of  a  steam  railroad,  but  his  wagon 
wheel  caught  in  the  end  of  the  rail  and 
he  was  thrown  out.  The  evidence  showed 
that  the  end  of  defendant's  rail  was  cut 
away  so  as  to  allow  the  wheels  of  the  steam- 
car  to  pass,  and  was  broken  under  at  an 
acute  angle,  and  when  the  wagon  was 
stopped  the  rail  was  found  to  be  raised  up 
some  six  inches  and  resting  against  the 
wheel.  Held,  that  the  question  of  the 
company's  negligence  as  to  the  manner  of 
constructing  the  crossing  was  properly  left 
to  the  jury.  Cook  v.  Union  R.  Co.,  125 
Mass.  57. 

Plaintiff's  coach  was  being  driv.i  along  a 
city  street,  and  while  crossing  defendant's 
track  in  a  slanting  direction,  a  collision  oc- 
curred between  the  coach  and  defendant's 
car.  There  was  a  decided  conflict  of  testi- 
mony as  to  the  facts  of  the  collision,  and 
which  party  was  responsible.  Held,  that  a 
verdict  for  plaintiff  would  not  be  disturbed. 
Gallagher  v.  Coney  Island  &*  B.  R.  Co.,  24 
N.  Y.  S.  R.  746,  4  A^.  Y.  Supp.  870. 

In  such  case,  it  was  the  duty  of  the  car 
driver  to  take  all  reasonable  precautions  to 
avoid  a  collision,  and  he  was  not  justified  in 
taking  any  risks  on  the  assumption  that  be- 
cause the  coach  driver  could  turn  in  any 
direction,  and  the  car  was  confined  to  the 
track,  it  was  the  business  of  the  coach  driver 
to  get  out  of  the  way  or  to  take  the  conse- 
quences. Gallagher  v.  Coney  Island  &*  B. 
R.  Co.,  24  N.  Y.  S.  R.  746,  j^N.Y  Supp.  870. 

Plaintiff,  the  driver  of  a  beer  wagon,  the 
weight  of  which  and  the  weight  of  the 
horses  rendered  speed  impossible,  after 
looking  up  and  down  the  street  and  seeing 
no  cars  in  sight,  crossed  one  of  defendant's 
tracks  in  safety,  and  had  nearly  crossed  the 
last,  when  the  rear  wheels  were  struck  by  a 
car,  and  he  was  thrown  out  and  injured. 
It  appeared  that  plaintiff's  horses  were  ac- 
tually on  the  last  track  when  defendant's  car 
was  sixty  to  seventy  feet  away.  Held,  that 
the  question  whether  or  not  plaintiff  exer- 


cised his  right  to  cross  the  track  in  a  care- 
ful or  careless  manner  was  for  the  jury,  and 
a  verdict  in  plaintiff's  favor  would  not  be 
disturbed.  The  finding  of  the  jury  that 
defendant  was  negligent  was  justified  by  the 
evidence.  tVi/gel  v.  Third  Ave.  R.  Co.,  52 
N.  Y.  S.  R.  $21,  3  Misc.  561 ;  reversed  in  6 
Misc.  635,  mem. 

Plaintiff  was  driving  on  a  street  when  hit 
progress  was  stopped  by  a  blockade  of 
trucks,  and  he  was  compelled  to  stop  with 
the  hind  wheels  of  his  vehicle  on  defend- 
ant's street-car  track.  The  driver  of  a  car 
approached  and  asked  him  to  get  off,  when 
plaintiff  told  him  to  wait  a  minute  and  he 
would  be  able  to  move  forward.  Thereupon 
the  driver  cursed  him,  and  said,  "  I  will  get 
you  off  some  way  or  other,"  and  as  plain- 
tiff was  preparing  to  move  forward  the  car 
struck  the  hind  wheels  of  the  vehicle  and 
turned  it  over,  injuring  plaintiff.  Held, 
that  this  was  not  such  a  wilful  or  malicious 
act,  or  so  far  out  of  the  ordinary  business 
of  the  driver,  as  to  relieve  the  company 
from  liability.  Cohen  v.  Dry  Dock,  E.  B. 
&'  B.  R.  Co.,  8/.&'S.  {AT.  Y.)  368  ;  affirmed 
in  69  N.  Y.  170.— Distinguishing  Isaacs 
V.  Third  Ave.  R.  Co.,  47  N.  Y.  122.— 
Distinguished  in  Hoffman  v.  New  York 
C.  &  H.  R.  R.  Co,,  12  J.  A  S.  I. 

Plaintiff  sued  for  damages  resulting  from 
the  collision  of  a  street-car  with  her  car- 
riage while  she  was  attempting  to  cross  the 
track  in  front  of  an  approaching  car.  It 
was  shown  that  the  driver  of  the  car  was, 
at  the  time,  looking  up  and  down  the  street 
to  see  if  any  passengers  desired  to  board 
the  car.  But  it  also  appeared  that  his  at- 
tention was  not  unnecessarily,  or  for  any 
unreasonable  time,  withdrawn  from  a  view 
of  the  track.  There  was  no  evidence  that 
he  neglected  to  apply  the  brakes  promptly, 
or  that  he  failed  to  do  anything  which  he 
might  have  done  to  avoid  a  collision.  Held, 
that  it  was  error  to  submit  the  question 
of  such  driver's  negligence  to  the  jury. 
Thomas  v.  Citizens'  Pass.  R.  Co.,  46  Am.  6- 
Eng.  R.  Cas.  196,  132  Pa.  St.  504,  19  At  I. 
Rep.  286. 

470.  Injuries  to  foot  passengers 
while  crossing  track."*  —  It  was  in  dis- 

*  Liability  of  street-railway  company  for  in- 
jury to  persons  walking  on  streets,  see  notes,  13 
L.  R.  A.  74;  56  Am.  &  Eng.  R.  Cas.  454;  46  Id. 
ig3,  abstr. 

Negligence  of  drivers,  see  note,  50  Am.  ft 
Enr.  R.  Cas.  490. 


520 


STREET   RAILWAYS,  477,  478. 


■f! 


^'■1 


f.    1- 


I     I 

:  i 


pute  between  plaintiff  and  defendant  com- 
pany whether  plaintiff  was  injured  while 
attempting  to  cross  the  street  in  front  of  a 
car,  or  whether  he  ran  along  the  side  of  the 
car  from  the  rear,  and  received  his  injuries 
in  that  way.  Plaintiff  testified  that  when 
he  was  in  the  middle  of  the  track  the  car 
horse  stumbled  against  him  and  he  grasped 
the  dashboard,  but  lost  his  hold  and  fell 
under  the  car.  Defendant  offered  evidence 
tending  to  show  that  plaintiff  was  a  tres- 
passer, and  was  injured  while  trying  to 
climb  over  the  front  dashboard.  The  car 
was  being  driven  by  a  passenger  at  the 
time,  and  the  brake  was  only  half  on. 
Held,  that  a  verdict  for  plaintiff  would  not 
be  disturbed.  Manahan  v.  Steinway  &•  H. 
P.  R.  Co.,  30  N.  Y.  S.  R.  362,  55  Hun  610, 
mem.,  8  N.  Y.  Supp.  935,  mem. ;  reversed  in 
125  A^.  Y.  760,  mem.,  35  A^  Y.  S.  R.  S13,  26 
N.  E.  Rep.  736. 

Plaintiff  testified  that  just  as  she  stepped 
from  the  sidewalk  to  the  crosswalk  she 
looked  to  the  left  and  saw  a  car  about  125 
feet  away,  and  she  then  looked  to  the  right 
and  saw  another  car  nearer  than  the  first 
car.  She  kept  her  eye  on  the  latter  car 
until  she  was  struck  and  knocked  down  by 
the  horses  of  the  first  car  seen.  It  appeared 
that  the  driver  of  the  car  which  struck  her 
saw  her,  called  several  times  to  her,  and 
made  every  effort  to  stop  the  car,  and  suc- 
ceeded in  doing  so  just  as  she  was  struck. 
Held,  that  there  was  not  sufficient  evidence 
to  juf  .ify  a  finding  that  the  company  was 
negligent.  Ewing  v.  Atlantic  Ave.  R.  Co., 
34  N.  Y.S.R.  113,  II  A^.  Y.  Supp.  626. 

Defendant's  car  stopped  three  or  four 
feet  below  a  crossing  to  permit  a  passenger 
to  alight.  While  plaintiff  was  attempting 
to  cross  the  street  in  the  rear  of  the  car,  she 
was  struck  and  injured  by  the  car  suddenly 
moving  backwards  as  the  driver  relaxed  the 
brakes.  Defendant  gave  no  evidence ;  the 
court  denied  plaintiff's  request  to  go  to  the 
jury  and  dismissed  the  complaint.  Held, 
error;  whether  there  was  negligence  on  the 
part  of  defendant  or  its  servant  should 
have  been  submitted  to  the  jury.  Lundy  v. 
Second  Ave.  R.  Co.,  i  Misc.  100,  48  N.  Y.  S. 
R.  676,  20  A^.  Y.  Supp.  691.— Following 
Conlin  v.  Rodgers,  39  N.  Y.  S.  R.  51. 

477.  Running  against  person 
standing  near  track.'*'  — A  company  is 

•  Liability  of  street-railway  companies  for  in- 
jury tn  persons  In  the  street,  see  note,  51  Am. 
&  Emg.  R.  Cas.  19a. 


not  liable  for  injuries  to  one  who  is  struck 
by  the  handle  on  the  rear  dasher  of  a  car  as 
it  rounds  a  corner  where  she  was  standing 
near  the  track  waiting  for  the  car  to  pass, 
plaintiff  having  seen  the  car  before  it 
reached  her,  but  thought  she  was  far  enough 
from  it  to  be  safe,  and  there  being  no  defect 
or  improper  management  in  the  car  or  in 
the  track.  IVidmerv.  West  End  St.  R.  Co., 
I S^  Mass.  49,  32  N.  E.  Rep.  S^. 

Plaintiff,  a  flagman,  was  temporarily 
stationed  by  a  steam-railroad  company  at 
a  point  where  its  gate  was  broken  down, 
where  he  was  obliged  to  stand  in  a  narrow 
space  between  the  steam-railroad  track,  and 
defendant's  street-car  track.  While  he  was 
engaged  in  signaling,  the  driver  of  a  car, 
who  could  plainly  see  him  for  some  dis- 
tance, approached  him  from  behind,  but 
drove  on  without  checking  speed  until  plam- 
tiff  was  struck.  Held,  that  there  was  suffi- 
cient evidence  of  negligence  to  justify  a 
submission  to  the  jury.  D'Oro  v.  Atlantic 
Ave.  R.  Co.,  37  A^.  Y.  S.  R.  411,  13  A^.  Y. 
Supp.  789;  affirmed  in  129  N.  Y.  632,  mem., 
41  A^.  Y.  S.  R.  946,  mem.,  29  N.  E.  Rep. 
1030,  mem. 

In  such  case  a  request  to  charge  hat  if 
plaintiff  stepped  back  and  thus  came  in 
collision  with  the  car,  which  collision  would 
not  have  occurred  had  he  not  stepped  back, 
then  plaintiff  cannot  recover,  is  too  general 
and  a  refusal  so  to  charge  is  proper.  D'Oro 
V.  Atlantic  Ave.  R.  Co.,  37  A^.  Y.  S.  R.^ii. 
13  M  Y.  Supp.  789;  affirmed  in  129  N.  Y. 
632,  mem.,  41  A^.  Y,  S.  R.  946,  mem.,  29  A^. 
£.  Rep.  1030,  mem. 

478.  Injuring  persons  engaged  in 
excavating  under  trade.'*'  —  Plaintiff 
was  engaged  in  digging  a  trench  in  a  street 
by  the  side  of  defendant's  track.  A  barrier 
of  planks  resting  on  sections  of  sewer  pipe 
was  erected  around  the  excavation.  As 
one  of  defendant's  cars  passed,  a  piece  of 
pipe  fell  into  the  trench,  injuring  plaintiff. 
Plaintiff's  evidence  was  to  the  effect  that 
the  car  struck  the  pipe,  causing  its  fall. 
Another  car  had  just  passed  without  strik- 
ing it.  It  appeared  that  when  this  car  ap- 
proached the  excavation  the  driver  stopped 
it,  the  conductor  looked  along  the  track 
and  thought  there  was  room  to  pass,  and 
the  foreman  of   the  contractor  who  was 

*  Injury  to  person  working  on  street  by  being 
struck  by  a  street-car.  When  question  of  con- 
tributory negligence  for  jury,  see  43  Am.&  Eno. 
R.  Cas.  299,  atstr. 


STREET   RAILWAYS,  479,  480. 


521 


making  the  excavation  signaled  to  the 
driver  to  come  on;  he  drove  along  at  a 
walk,  passed  two  of  the  sections  of  pipe 
and  struck  the  third.  Held,  that  the  evi- 
dence failed  to  establish  negligence  on  de- 
fendant's part,  and  that  the  submission  of 
the  question  to  the  jury  was  error.  Schmidt 
V.  Steimvay  &*  H.  P.  R.  Co.,  132  N.  V. 
566,  mem.,  30  A';  E.  Rep.  389,  43  A^.  Y.  S.  R. 
683;  reversing  57  Hun  590,  t::em.,  32  N,  V. 
S.  R.  912,  10  N.  Y.  Supp.  672.— Reviewed 
IN  Lahey  v.  Central  Park,  N.  &  E.  R.  R. 
Co..  ;i  N.  Y.  S.  R.  589. 

As  the  driver  of  a  street-car  approached 
an  excavation  in  which  a  sewer  was  being 
constructed,  a  man  who  had  been  present 
for  four  days  controlling  the  passage  of 
cars  directed  the  driver  to  go  ahead,  but  in 
doing  so  a  pipe  was  thrown  into  the  ex- 
cavation and  injured  one  of  the  workmen. 
Held,  that  the  company  should  have  placed 
a  man  there  to  prevent  injuries,  if  the  place 
was  dangerous;  and  it  could  not  escape 
liability  by  showing  that  the  man  who 
directed  the  car  to  go  forward  did  not  in 
fact  represent  the  company.  Schmidt  v. 
Steinway  6-  H.  P.  R.  Co.,  iS  ■^««  496.  29 
A^.  Y.  S.  R.  201.  8  N.  Y.  Supp.  664.  9  N.  Y. 
Supp.  939.  mem. 

An  employ6  of  a  city  was  engaged  in 
laying  a  water  pipe  under  defendant's  track. 
A  ditch  had  been  dug  under  and  at  right 
angles  to  the  track,  and  plaintiff,  in  lifting 
pipe  to  be  placed  in  the  ditch,  was  com- 
pelled to  stand  over  the  rail  and  on  the  car 
track,  with  his  back  towards  approaching 
cars.  The  cars  were  drawn  over  the  ditch 
by  a  rope.  It  was  not  contradicted  that  on 
all  other  occasions  defendant's  employes 
had  notified  the  city's  employ£s  that  a  car 
was  about  to  be  worked  over  the  ditch,  but 
on  this  occasion  no  warning  was  given,  and 
the  car  ran  into  plaintiff  and  injured  him. 
Held,  that  the  questions  of  plaintiff's  con- 
tributory negligence  and  of  defendant's  neg- 
ligence were  both  for  the  jury.  Owens  v. 
People's  Pass.  R.  Co.,  155  Pa.  St.  334,  26 
Atl.  Rep.  748. 

479.  Buuning  over  drunken  man 
on  track.— A  company  will  be  liable  for  the 
act  of  a  driver  in  driving  upon  a  man  who  is 
lying  drunk  upon  the  track,  and  killing 
him,  where  it  appears  that  the  driver  saw 
him,  but  supposing  the  object  to  be  a  bundle 
of  grain  made  no  effort  to  stop,  though  he 
could  easily  have  done  so.  Werner  v.  Citi- 
zens' R.  Co.,  81  Mo.  368 ;  affirming  1 1  Mo. 


App.  601.— Following  Isabel  v.  Hannibal 
&  St.  J.  R.  Co..  60  Ma.  475 ;  Harlan  v.  St. 
Louis.  K.  C.  &  N.  R.  Co.,  65  Mo.  26 ;  Zim- 
merman V.  Hannibal  &  St.  J.  R.  Co.,  71  Mo. 
484 ;  Frick  v.  St.  Louis,  K.  C.  &  N.  R.  Co., 
75  Mo.  542  ;  Kelley  v.  Hannibal  &  St.  J.  R. 
Co.,  75  Mo.  140.— Followed  in  Bergman 
V.  St.  Louis,  I.  M.  &  S.  R.  Co..  88  Mo.  678. 
Quoted  in  Donohue  v.  St.  Louis.  I.  M.  & 
S.  R.  Co..  28  Am.  &  Eng.  R.  Cas.  673.  91 
Mo.  357. 

480.  Drivings  at  excessive  rate  of 
speed.— If  the  average  rate  of  speed  fixed 
by  the  schedule  of  a  company  is  excessive, 
in  view  of  the  stops  necessary  to  be  made 
in  the  route,  the  company  will  be  responsi- 
ble for  an  accident  occurring  from  the  fact 
that  one  of  its  servants  was  speeding  a  car 
in  conformity  with  the  schedule  of  the  com- 
pany. Central  R.  Co.  v.  Allmon,  147  ///. 
471.35  A^.  E.  Rep.  721. 

A  driver  on  a  street-car  is  not  bound  to 
regulate  his  speed  at  such  a  rate  as  may  be 
necessary  to  avoid  harm  to  persons  crossing 
the  road  in  an  unreasonable  and  improper 
manner.  It  is  as  much  the  duty  of  persons 
crossing  the  street  on  foot  to  look  out  for 
vehicle?  as  it  is  the  duty  of  the  driver  to  look 
out  for  those  who  are  crossing  the  street. 
Meyer  v.  Lindell  R.  Co.,  6  Mo.  App.  27. 

In  an  action  to  recover  for  injuries  sus- 
tained through  being  run  over  by  a  horse- 
car,  if  there  is  evidence  tending  to  prove 
that  the  car  driver  saw  plaintiff  on  the  track 
in  advance  of  the  team,  and  had  an  oppor- 
tunity to  observe  the  danger  in  which  the 
rapid  progress  of  the  horses  might  place  him, 
and  yet  made  no  effort  to  slacken  their 
movements  or  deviate  their  course  so  as  to 
avoid  the  collision,  but  on  the  contrary,  the 
speed  was  accelerated  as  they  approached 
plaintiff,  there  is  sufficient  evidence  to  sus- 
tain a  finding  that  the  car  driver  was  guilty 
of  negligence.  McClain  v.  Brooklyn  City 
R.  Co..  40  Am.  &*Eng.  R.  Cas.  254.  116  N. 
Y.  459,  22  A^.  E.  Rep.  1062,  27  A'.  Y.  S.  R. 
549 ;  affirming  42  Hun  657,  6  N.  Y.  S.  R.  49. 

Plaintiff  was  injured  by  a  car  that  was  be- 
ing driven  at  the  rate  of  five  or  six  miles  an 
hour.  Plaintiff  swore  that  he  could  not  see 
the  car  until  he  got  to  the  middle  of  the 
track,  when  he  discovered  that  it  was  on 
him  ;  that  he  jumped  before  the  car  struck 
him.  The  driver  swore  that  he  saw  plaintiff 
standing  on  the  street  when  he  was  a  block 
away  ;  that  plaintiff  stepped  nearer  the  track 
when  the  car  approached,  and  that  he  put 


522 


STREET   RAILWAYS,  481-483. 


on  the  brake  and  succeeded  in  stopping  the 
car  just  as  plaintiff  was  struck ;  that  there 
was  nothing  between  plaintiff  and  the  car. 
There  was  nothing  to  show  that  the  driver 
attempted  to  stop  the  car  until  he  was  very 
close  to  plaintiff,  or  that  there  was  anything 
to  prevent  him  from  stopping  it  before  plain- 
tiff was  struck.  Held,  that  the  court  was 
justified  in  submitting  the  question  of  de- 
fendant's negligence  to  the  jury.  Brown 
V.  Twenty-third  St.  li.  Co..  4  N.  V.  Supp. 
192.  21  iV.  Y.  S.  R.  475.  24/-  <S-  S.  356;  af- 
firmed in  \i\  N.  Y.  667,  mem.,  24  N.  E. 
Rep.  1094,  mem. 

481. at  rate  prohibited  by  city 

ordinance.  —  In  an  action  to  recover  for 
an  injury  sustained  by  being  run  over  by  a 
car,  plaintiff  offered  in  evidence  an  ordinance 
of  the  city  regulating  the  speed   of  cars. 
The  evidence  was  objected  to  on  the  ground 
that  no  evidence  had  been  offered  to  show 
that  the  car  was  running  at  a  speed  exceed- 
ing six  miles  an  hour  (the  rate  allowed  by 
the  ordinance)  at  the  time  of  the  accident. 
One  witness  had  testified  that  she  did  not 
know  at  what  speed  the  car  was  running, 
but  that  it  was  running  faster  than  ordi- 
narily, and  that  a  man  would  have  to  run 
very  fast  to  keep  up  with  it.     Another  tes- 
tified that  she  did  not  see  the  car  coming 
but  heard  it,  and  from  the  sound  of  the 
bells  she  thought  it  was  coming  at  full  speed. 
Held,  that  it  was  competent  for  the  jury  to 
determine  whether  or  not  the  car  was  run^ 
ning  at  a  speed  exceeding  six  miles  an  hour, 
and  that  the  evidence  sufficiently  laid  the 
foundation    for  the    introduction    of    the 
ordinance.     Baltimore  City  Pass.  R.  Co.  v. 
McDonnell,  43  Md.  534,  \\Am.  Ry.  Rep.  272. 
In  such  case,  defendant  was  guilty  of  neg- 
ligence if  the    accident  could    have  been 
avoided  had  the  car  not  been  running  at  a 
prohibited  rate  of  speed.     Baltimore  City 
Pass.  R.  Co.  v.  McDonnell,  43  Md.  534,  14 
Am.  Ry.  Rep.  272. 

The  fact  that  a  car  was  being  driven  at  a 
rate  of  speed  prohibited  by  a  city  ordinance, 
at  the  time  plaintiff  was  injured,  is  evidence 
of  negligence  on  the  part  of  the  company, 
but  it  is  not  conclusive.  Hanlon  v.  South 
Boston  Horse  R.  Co.,  2  Am.  &*  Eng.  R.  Cas. 
18,  129  Mass.  310.  —  Quoted  in  Wall  v. 
Helena  St.  R.  Co.,  12  Mont.  44. 

Running  a  street-car  at  a  rate  of  speed 
beyond  the  limit  fixed  by  a  city  ordinance 
tends  to  show  negligence  on  the  part  of  the 
company ;  but  whether  the  car  was  run  in 


violation  of  the  ordinance  is  a  question  of 
fact  for  the  jury.  Liddy  v.  St,  Louis  R.  Co., 
40  Mo.  506.— Reviewed  in  Scaling  v.  Pull- 
man Palace  Car  Co.,  24  Mo.  App.  29. 

482.  Frightening  teams.*—  A  cor- 
poration authorized  by  statute  and  the  ordi- 
nances of  a  city  to  operate  a  dummy  on  a 
city  street  is  not  liable  to  a  traveler  on  the 
street  for  damage  caused  by  the  fright  of 
a  horse  at  the  noise  made  by  the  escape 
of  steam  through  the  safety  valve  of  the 
dummy,  although  the  dummy  had  been 
standing  at  one  place  in  the  street  for  half 
an  hour.  Howard  v.  Union  Freight  R,  Co., 
156  Mass.  159,  30  A';  E.  Rep.  479. 

Plaintiff's  horse,  which  was  standing  in  a 
street,  suddenly  reared  up  and  fell  over 
dead.  One  of  defendant's  street-cars  had 
run  off  the  track  about  twenty  or  thirty 
feet  from  where  the  horse  was  standing  and 
was  being  replaced ;  but  there  was  no  evi- 
dence that  the  horse  had  been  frightened 
by  the  occurrence.  Held,  that  defendant 
was  not  liable.  Hazel  v.  People's  Pass.  R. 
Co.,  43  Am.  &»  Eng.  R.  Cas.  400,  132  Pa.  St. 
96,  18  Atl.  Rep.  1 116. 

Although  a  horse  may  have  taken  fright 
at  a  street-car  which  has  run  off  the  track 
and  is  being  restored  to  it  in  the  usual 
manner  and  with  the  usual  noises,  the  com- 
pany is  not  liable  for  his  death,  in  conse- 
quence thereof,  in  the  absence  of  other 
evidence  of  negligence.  Hazel  v.  People's 
Pass.  R.  Co.,  43  Am.  6-  E^g.  R.  Cas.  400, 
132  Pa.  St.  96,  18  Atl.  Rep.  ill 6. 

The  conductor  of  a  street-car  is  guilty  of 
negligence  in  not  stopping  or  slowing  up  his 
car,  which  was  running  at  a  high  rate  of 
speed,  where,  as  soon  as  he  came  in  sight  of 
plaintiff's  horses,  they  began  to  rear  and 
jump,  and  the  conductor  saw,  or,  in  the 
exercise  of  ordinary  prudence,  ought  to  have 
seen,  the  team,  and  that  they  were  fright- 
ened. Gibbons  v.  Wilkes-Barre  &*  S.  St.  R. 
Co.,  56  Am.  5-  Eng.  R.  Cas.  600,  155  Pa. St. 
279,  26  Atl.  Rep.  417. 

483.  Where  company's  horses  take 
fright  and  run  away.f  —While  driving 
on  a  street,  a  span  of  horses  belonging  to  a 
street-car  company  ran  away  and  injured 
plaintiff.  Just  previous  to  their  running 
away  they  had  been  attached  to  a  car,  and 
the  driver  was  changing  them  to  the  oppo- 


*Frighten!nK  horses  by  operation  of  street 
railwayii,  see  46  Am.  &  Eno.  R.  Cas.  204,  aistr. 
f  See  also  anfe,  434. 


STREET   RAILWAYS,  484-487. 


623 


site  end  of  the  car,  when  either  the  whip- 
pletree  fell  on  their  heels,  or  they  became 
frightened  from  some  other  cause,  and 
started  on  a  swift  run.  Held,  that  the  ques- 
tion of  the  driver's  negligence  was  properly 
left  to  the  jury.  Lynch  v.  Brooklyn  City  R. 
Co.,  24  N.  Y.  S.  R,  447,  52  Hun  614,  i  Silv. 
Sup.  Ct.  361.  5  N.  Y.  Supp.  311 ;  affirmed  in 
123  N.  Y.  567,  mem.,  25  N.  E.  Rep.  955,  mem. 
And  a  company  is  not  liable  to  a  party 
injured  by  being  run  over  in  the  street  by  a 
team  of  horses  belonging  to  the  company, 
the  horses  having  been  frightened  by  an 
assault  made  upon  them  by  third  parties, 
where  it  appears  that  the  horses  were  being 
driven  as  they  had  been  driven  for  several 
years  without  accident,  and  in  a  manner 
that  was  deemed  safe  and  discreet.  Weldon 
v.  Harlem  R.  Co.,  S  Bosw.  (N.  Y.)  576. 

484.  Snifldeiicy  of  complaint.— 
Where  the  action  is  for  damages  based  upon 
defendant's  negligence,  a  general  aver- 
ment of  negligence  is  sufficient  to  admit 
proof  of  special  circumstances  constituting 
it.  Oldfield  v.  New  York  6*  H.  R.  R.  Co., 
14  N.  Y.  310. 

In  an  action  for  personal  injuries,  the 
complaint  alleged  that  while  plaintiff  was  in 
the  act  of  crossing  a  certain  street  on  a 
crosswalk,  the  driver  of  a  street-car  "so 
negligently  and  carelessly  managed  his 
team  that  the  horses  knocked  her  down  and 
injured  her  leg."  Held,  that  this  was  a 
plain  and  concise  statement  of  the  fact  con- 
stituting a  cause  of  action,  as  required  by 
N.  Y.  Code  Civ.  Pro.,  §  481,  and  was  suffi- 
cient. Agnew  V.  Brooklyn  City  R,  Co.,  20 
Abb.  N.  Cas.  23s,  13  Civ.  Pro.  25,  9  N.  Y. 
S.  R.  719. 

In  such  case  the  company  insisted  that, 
under  section  546  of  the  above  Code,  the 
court  should  compel  plaintiff  to  state  what 
act  of  commission  or  omission  of  the  driver 
was  negligent.  Held,  that  this  was  not  re- 
quired. To  require  a  more  specific  state- 
ment would  be  to  plead  the  evidence. 
Agnew  V.  Brooklyn  City  R.  Co.,  20  Abb.  N. 
Cas.  235,  13  Civ.  Pro.  25,  9  N.  Y.  S.  R.  719. 

485.  Conflict  of  evidence— Ques- 
tion for  Jury.  —  It  is  for  the  jury  to  de- 
termine whether  the  driver  of  a  street-car 
was  guilty  of  negligence  in  driving  forward 
while  a  wagon  approaching  in  a  block  of 
cais  and  wagons  was  advancing  at  the  re- 
quest of  the  driver  of  the  car,  where  the 
evidence  is  conflicting  as  to  whether  there 
would  have  been  a  collision  if  the  car  had 


remained  stationary.  Kerr^an  v.  West  End 
St.  R.  Co.,  1 58  Mass.  305,  33  N.  E.  Rep.  523. 

Plaintiff  was  injured  by  the  falling  of  the 
horse  on  which  he  w;..'>  riding.  He  testified 
that  he  was  riding  m  the  street,  on  one 
horse  and  leading  another,  and,  when  in 
the  act  of  turning  off  defendant's  track,  the 
horse  that  he  was  riding  was  struck  on  the 
rump  by  a  passing  car,  and  afterward  hit 
with  the  whip  of  the  driver,  whereby  he  be- 
came unable  to  manage  it  and  it  slipped 
and  fell.  The  driver  of  the  car  admitted 
that  the  car  touched  one  of  the  horses,  but 
denied  striking  either  with  the  whip,  but 
there  was  evidence  of  other  witnesses  that 
the  driver  lashed  his  whip  in  the  air  for  the 
purpose  of  keeping  the  horses  back.  Held, 
that  the  question  growing  out  of  the  con- 
flict of  evidence  must  be  settled  by  the 
jury,  and  a  verdict  for  plaintiff  would  not  be 
disturbed.  Berke  v.  Twenty-third  St.  R.  Co., 
22  N.  Y.  S.  R.  492,  52  Hun  611,  mem.,  4 
N.  Y.  Supp.  90s. 

480.  Injury  caused  by  wheels  slip- 
ping. —  In  an  action  to  recover  damages 
caused  by  defendant's  dray  running  against 
a  street-car,  the  fact  that  the  collision 
would  not  have  occurred  except  for  the 
slipping  of  the  wheels  of  the  dray  on  the 
iron  track  does  not  conclusively  repel  the 
imputation  of  negligence.  Seigelv.  Eisen, 
41  Cal.  109. 

If  there  is  evidence  before  the  jury  tend- 
ing to  show  that  when  the  brakes  are  ap- 
plied a  car  wheel  will  not  revolve,  but  wiil 
slide  along  the  ground,  the  boot  worn  by 
plaintiff  at  the  time  of  the  injury  is  admis- 
sible for  the  purpose  of  showing  by  the  in- 
dentations upon  it  that  the  car-wheel  ran 
over  plaintiff's  foot,  and  that  the  brake  was 
not  applied.  Hays  v.  Gainesville  St.  R,  Co., 
34  Am.  &*  Eng.  R.  Cas.  97,  70  Tex.  602,  8 
S.  W.  Rep.  491. 

c.  Contributory  Negligence  of  Person  in 
Street. 

487.  Generally.— Where  the  evidence 
shows  that  plaintiff,  who  was  injured  by  a 
collision  with  a  car,  contributed  by  his  own 
fault  to  bring  about  the  collision,  he  cannot 
recover  damages  from  the  company  on  ac- 
count of  the  injury,  even  though  the  em- 
ployes of  the  company  were  partly  in  fault. 
Schwartz  v.  Crescent  City  R.  Co.,  30  La. 
Ann.  15. 

And  where  it  appears  that  plaintiff  was 
guilty  of  negligence  directly  contributing 


r* 


524 


STREET  RAILWAYS,  488-400. 


m 


,'.  1 


f  ■ 


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i 


fil! 


i-:;i 


to  the  accident,  he  must  show  that  the  in- 
juiy  could  have  been  avoided  if  defendant 
had  exercised  ordinary  care.  Meyer  v.  Lin- 
dell  R.  Co.,  6  Mo.  App.  rj. 

Cases  where  a  nonsuit  would  be  sus- 
tained on  the  ground  of  contributory  neg- 
ligence are  exceptional,  and  are  confined  to 
cases  where  the  undisputed  facts  show  some 
act  which  the  law  adjudges  negligent.  But 
if  contributory  negligence  clearly  appears 
from  plaintiff's  own  evidence,  and  from 
facts  which  are  undisputed,  it  is  proper  to 
order  a  nonsuit.  Hernett  v.  Bleeder  St. 
6-  F.  F.  R.  Co.,  17  /.&*  S.  (N.  Y.)  185.— 
Applying  Stackus  v.  New  York  C.  &  H. 
R.  R.  Co.,  79  N.  Y.  464.  Reviewing  Barker 
V.  Savage,  45  N.  Y.  191. 

Where  a  cart  and  a  street-car  are  both 
progressing  side  by  side  in  the  same  direc- 
tion, and  a  collision  is  caused  by  plaintiff 
imprudently  turning  his  horse  to  one  side, 
a  verdict  for  plaintiff  is  against  the  evi- 
dence. Suyttam  v.  Grand  St.  &»  N.  R.  Co., 
17  Abb.  Pr.  {N.  Y.)  304,  41  Barb.  375. 

488.  Care  to  be  observed  in  going 
on  track. — It  is  not  negligence  per  se  for 
the  driver  of  a  patrol  wagon  to  drive  along 
and  upon  a  street-car  track,  so  long  as  he 
uses  ordinary  care  to  avoid  a  collision  with 
the  cars  on  the  track,  and  it  is  a  question 
fur  the  jury  whether  he  has  used  such  ordi- 
nary care.  Swam  v.  Fourteenth  St.  R.  Co., 
93  Cal.  179,  28  Pac.  Rep.  829. 

A  pedestrian  in  crossing  the  track  of  a 
street  railroad  is  only  bound  to  use  ordinary 
care,  or  that  degree  of  care  which  people  of 
ordinarily  prudent  habits  could  be  reason- 
ably expected  to  exercise  under  the  circum- 
stances. Driscoll  v.  Market  St.  Cable  R. 
Co.,  97  Cal.  553,  32  Pac.  Rep.  591. 

To  enable  a  party  to  recover  for  an  injury 
by  a  collision  with  a  street-car,  he  must 
show  that  he  exercised  a  reasonable  degree 
of  prudence  and  cau^ion  in  endeavoring  to 
avoid  the  accident.  If  the  evidence  shows 
that,  while  the  car  was  in  motion,  he  failed 
to  exercise  a  reasonable  degree  of  prudence, 
which  would  have  prevented  the  occur- 
rence of  the  accident,  he  cannot  recover  for 
injuries  either  to  his  person  or  his  property, 
even  though  the  driver  of  the  car  be  him- 
self at  fault.  Mercier  v.  New  Orleans  &*  C. 
R.  Co.,  23  La.  Ann.  264. 

The  rule  requiring  one  exercising  his  law- 
ful rights,  in  a  place  where  the  exercise  of 
lawful  rights  by  others  nay  put  him  in  peril, 
to  use  such  precautiuii  and  care  for  his 


safety  as  a  reasonably  prudent  man  would 
use  under  the  circumstances,  is  the  measure 
of  duty  for  one  who  crosses  a  public  high- 
way on  foot.  He  must  use  his  powers  of 
observation  to  discover  approaching  ve- 
hicles, and  his  judgment  how  and  when  to 
cross  without  collision,  but  his  observation 
need  not  extend  beyond  the  distance  within 
which  vehicles  moving  at  lawful  speed 
would  endanger  him.  If  obstacles  tetapo- 
rarily  intervene  to  prevent  observation,  he 
should  wait  until  the  required  observation 
can  be  made.  Newark  Pass.  R.  Co.  v.  Block, 
56  Am.  6-  Eng.  R.  Cas.  590,  55  N.J.  L.  605, 
27  Atl.  Rep.  1067. 

489.  Care  in  crosHing  street-car 
track  distinguished  from  other  rail- 
roads.— The  cars  of  a  horse  railway  have 
not  the  same  right  to  the  use  of  the  track 
over  which  they  travel,  do  not  run  at  the 
same  speed,  are  not  attended  with  the  same 
danger,  and  are  not  so  difficult  to  check 
quickly  and  suddenly,  as  those  of  an  ordi- 
nary railroad  corporation.  A  person  law- 
fully traveling  upon  the  highway  is  not, 
therefore,  bound  to  exercise  the  same  de- 
gree of  watchfulness  and  attention  to  avoid 
the  one  as  to  keep  himself  out  of  the  way 
of  the  other.  Lynam  v.  Union  R.  Co.,  114 
Mass.  83. 

The  rules  as  to  the  care  one  is  bound  to 
observe  in  crossing  the  track  of  a  steam 
railroad  do  not  apply  with  equal  strictness 
to  a  person  about  to  cross  a  crowded  street, 
on  which  is  operated  a  horse  railroad. 
Brown  v.  Twenty-third  St.  R.  Co.,  24  /  6- 
5.  356,  4  N.  Y.  Supp.  192,  21  N.  Y.  S.  R. 
475;  affirmed  in  121  A''.  Y.  667,  mem.,  24 
N.  E.  Rep.  1094,  mem. 

It  is  not  necessary  to  look  both  up  and 
down  before  crossing  an  ordinary  street 
where  there  is  no  steam  railway.  In  cross- 
ing where  there  is  only  a  street-car  track  it 
is  only  necessary  to  look  for  cars  when  the 
situation  and  surrounding  circumstances 
would  require  a  person  of  ordinary  pru- 
dence to  do  so.  Pyne  v.  Broadway  &»  S.  A. 
R.  Cf.,  46  A^.  K.  S.  R.  662.  19  A^.  Y.  Supp. 
217 :  affirmed  in  138  A''.  Y.  627,  mem.,  51  N. 
Y.  S.  R.  934,  mem.,  33  N.  E.  Rep.  1083,  mem. 

400.  Duty  to  look  and  listen  be- 
fore going  on  track.  — The  fact  that  a 
person  passing  over  a  crossing  in  a  city  steps 
on  the  track  of  a  street  railroad,  whether 
the  cars  accustomed  to  run  thereon  are 
horse-cars  or  grip-cars,  without  first  stop- 
ping to  look  and  see  whether  a  car  is  ap- 


STREET   RAILWAYS,  491-494. 


525 


proaching,  is  not,  as  matter  of  law,  and 
without  regard  to  surrounding  circum- 
stances,  negligence  or  a  want  of  ordinary 
care.  Chicago  City  K.  Co.  v.  Robinson,  36 
Am.  &*  Eng.  R.  Cas.  66,  127  ///.  9.  4  L.  R. 
A.  126,  18  N.  E.  Rep.  772;  affirming  vj  III. 
App.  26.— Reviewed  in  Weber  v.  Kansas 
City  Cable  R.  Co..  41  Am.  &  Eng.  R.  Cas. 
117,  100  Mo.  194,  12  S.  W.  Rep.  804,  7  L.  R. 
A.  819. 

It  's  gross  negligence  to  drive  upon  a 
street-railway  tracic  in  front  of  an  approach- 
ing  car  without  looking  around  until  the 
car  runs  into  one's  vehicle ;  and  it  is  a 
wrong  not  only  to  the  company,  but  to  per- 
sons riding  in  or  waiting  for  the  car,  wilfully 
to  obstruct  its  progress  in  this  way  when 
there  is  nothing  to  hinder  one  from  gettmg 
off  the  track.  Wood  v.  Detroit  City  St.  R. 
Co.,  ig  Am.  &*  Eng.  R.  Cas.  129,  52  AficA. 
402,  18  A"   W.  Rep.  124. 

It  is  the  duty  of  a  person  in  crossing  a 
street-car  track  in  a  large  city  like  New 
York  to  look  to  ascertain  whether  there  are 
vehicles  coming  which  may  endanger  the 
crossing.  It  is  the  duty  of  every  such  pas- 
senger to  make  a  reasonably  vigilant  use  of 
his  eyes  and  ears  to  ascertain  whether  in 
crossing  a  street  any  danger  will  be  in- 
curred. Cowan  V.  Third  Ave.  R.  Co.,  16 
N.  Y.  S.  R.  916,  I  A^.  Y.  Supp.  612,  49  Hun 
607,  mem. 

Where  the  injury  is  caused  by  a  common 
horse-car,  a  charge  that  it  was  plaintiff's 
duty  to  look  and  listen  for  an  approaching 
car,  and  if  he  did  not,  in  the  opinion  of  the 
jury,  discharge  his  duty  in  that  respect,  he 
could  not  recover,  is  properly  refused. 
D'Oro  V.  Atlantic  Ave.  R.  Co.,  37  N.  Y.  S. 
R.  411,  13  JV.  Y.  Supp.  789;  affirmed  in  129 
N.  Y.  632,  mem.,  \i  N.  Y.  S.  R.  946,  mem. 

It  is  the  duty  of  a  person  about  to  cross 
a  street-railway  track  to  look,  so  that  he 
may  not  walk  or  drive  directly  in  front  of  a 
moving  car  and  be  struck  by  it.  Carson  v. 
Federal  St.  &*  P.  V.  Pass.  R.  Co.,  50  Am. 
&*  Eng.  R.  Cas.  462,  147  Pa.  St.  219,  23  Atl. 
Rep.  369. 

The  driver  of  a  wagon  who  approaches  a 
street-railway  crossing,  drives  upon  the 
track  without  looking,  and  immediately 
comes  into  collision  with  a  car,  is  guilty  of 
contributory  negligence.  Carson  v.  Federal 
St.  &*  P.  V.  Pass.  R.  Co.,  50  Am.  &>  Eng.  R. 
Cas.  462,  147  Pa.  St.  219.  23  Atl.  Rep.  369. 

491. but  uot  to  stop.— It  seems 

that  a  person  is  not  bound  to  stop  before 


crossing  a  street-railway  track,  but  he  must 
look  and  listen.  Carson  v.  Federal  St.  &* 
P.  V.  Pass.  R.  Co.,  so  Am.  &-  Eng.  R.  Cas. 
462,  147  Pa.  St.  219.  23  Atl.  Rep.  369. 

492.  Failure  to  notice  an  ap- 
proaclilng  car.  —  It  cannot  be  said  us  a 
matter  of  law  that  it  is  contributory  negli- 
gence m  a  person  about  to  cross  a  street  to 
fail  to  notice  that  an  approaching  street-car 
is  being  driven  at  twice  its  usual  rate  ;  and 
where  such  person  has  observed  that  an- 
other person  has  signaled  the  car  to  stop, 
his  failing  to  observe  that  the  driver  did 
not  heed  the  signal  and  stop  is  not  con* 
tributory  negligence.  Lang  v.  Houston,  W. 
S.  &*  P.  F.  R.  Co.,  75  Hun  151,  27  A^.  Y. 
Supp.  90. 

Plaintiff  testified  that,  before  entering  a 
cut  through  a  snow-drift  along  the  track  of 
defendant  company  in  which  she  was  run 
down  and  injured  by  a  car,  she  had  looked 
back,  but  saw  no  car  approaching.  Held, 
that  as,  from  the  testimony,  it  was  unques- 
tionable that  the  car  which  ran  her  down 
must  have  been  plainly  in  sight  when  she 
entered  the  cut,  a  place  for  unusual  caution 
and  vigilance,  so  that  if  she  looked  at  all  it 
must  have  been  heedlessly,  she  was  guilty 
of  contributory  negligence,  as  matter  of  law. 
Warner  v.  People's  St.  R.  Co.,  141  Pa.  St. 
615,  21  Atl.  Rep,  737.— Following  Carroll 
V.  Railroad  Co.,  12  W.  N.  C.  348. 

493.  Going  on  track,  witli  defect- 
ive hearing  and  obstructed  vision. 
—A  person  who  is  afflicted  with  deafness 
and  who  wears  protruding  apparel  obstruct- 
ive of  the  exercise  of  the  sense  of  sight, .  id 
who  ventures  without  looking  right  or  left 
to  cross  a  street-railway  track,  acts  rashly 
and  is  guilty  of  contributory  negligence,  and 
cannot  recover  damages  in  case  of  an  injury 
sustained  by  a  collision  with  a  coming  mule 
and  car.  Schulte  v.  New  Orleans  City  &*  L. 
R.  Co.,  44  La.  Ann.  509,  10  So.  Rep.  811. 

In  such  case  the  driver  has  a  right  to  pre- 
sume that  the  person  is  of  sound  hearing, 
and  that  she  will  exercise  her  senses  so  as 
to  avoid  an  accident  by  stopping  in  time  to 
let  the  mule  and  car  pass  freely.  Schulte  v. 
New  Orleans  City  &*  L,  R.  Co.,  44  La.  Ann. 
509, 10  So.  Rep.  811. 

494.  Not  negligence  to  drive  on 
street  where  cars  run.— In  an  action  to 
recover  for  an  injury  to  plaintiff's  horses, 
carriage,  and  harness,  it  is  not  error  for  the 
court  to  refuse  to  submit  interrogatories  to 
the  jury  based  upon  the   theory  that   if 


ft 


i     : 


5S6 


STREET  RAILWAYS,  495,  406. 


plaintiff  could  have  traveled  some  other 
street  than  the  one  on  which  the  accident 
occurred,  and  thus  have  avoided  meeting 
the  cars,  it  was  his  duty  to  do  so,  and  that 
his  failure  to  do  so  was  such  negligence 
as  to  preclude  a  recovery.  Muncie  St.  li. 
Co.  V.  Maynard,  s  Ind.  App.  372,  32  N.  E. 
Rep.  343. 

Where  the  evidence  clearly  shows  that 
plaintiff  made  every  effort  to  avoid  the  col- 
lision, but  on  account  of  the  frightened  con- 
dition of  the  horses  he  could  not  control 
them,  an  instruction  requested  by  defend- 
ant to  the  effect  that  if  plaintiff  could  have 
seen  the  car  approaching,  and  he  did  not 
escape,  and  his  property  was  injured,  the 
law  presumes  either  that  he  did  not  look,  or 
if  he  did  look,  that  he  did  not  heed  what  he 
•aw,  and  that  such  conduct  was  negligence 
in  itself,  is  properly  refused.  Muncie  St.  R, 
Co.  V.  Maynard,  5  ltd.  App.  372,  32  N.  E. 

Rep.  343- 

When  the  right  side  of  a  street  is  ob- 
structed by  cars  and  trucks,  and  plaintiff, 
leading  his  horse,  is  ordered  by  a  car  driver 
to  get  off  the  track,  he  is  justified  in  taking 
the  left  side,  and  is  not  guilty  of  contributory 
negligence  therefrom  where  the  horse,  while 
there,  is  run  into  and  injured.  Mooney  v. 
Trow  Directory  P.  &*  B.  Co.,  51  N.  Y. 
S.  R.  418. 

In  an  action  for  injury  to  plaintiff's  horses 
caused  by  collision  with  defendant's  car — 
held,  that  plaintiff  was  not  guilty  of  con- 
tributory negligence  in  selecting  the  street 
upon  which  the  injury  occurred  when  he 
might  have  gone  another  route,  although 
the  space  between  the  track  and  a  retaining 
wall  was  narrow,  and  an  electric  railway 
causing  noise  calculated  to  frighten  horses 
was  being  operated  on  that  track.  Gibbons 
V.  Wilkes-Barre  &*  S.  St.  R.  Co.,  56  Am.  &* 
Eng.  R.  Cas.  600,  155  Pa.  St.  279,  26  Atl. 
Rep.  417. 

495. nor  on  track.— Merely  being 

on  a  street-car  track  with  a  vehicle  is  not 
in  itself  negligence ;  but  the  party  is  bound 
to  exercise  ordinary  care  to  know  when  cars 
are  about  to  pass,  and  to  get  off  the  track. 
Bindbeutal  v.  Street  R.  Co.,  43  Mo.  App.  463. 

While  a  person  may  not  recklessly,  care- 
lessly, or  wilfully  obstruct  the  passage  of 
cars,  he  is  not  bound  to  keep  off  the  tracks ; 
and  if  he  fairly,  and  in  a  reasonable  manner 
respecting  the  paramount  right  of  the  com- 
pany, temporarily  obstructs  the  track,  when 
necessarily  engaged  in  the  prosecution  of  a 


lawful  business,  and  is,  without  fault  on  his 
part,  injured  by  negligence  chargeable  to 
the  company,  he  may  maintain  an'  action. 
Lahey  v.  Central  Park,  N.  &*  E.  R.  R.  Co.,  51 
N.  Y.  S.  R.  589,  22  N.  Y.  Supp.  380.— Re- 
viewing Schmidt  v.  Steinway  &  H.  P.  R. 
Co.,  132  N.  Y.  566,  mem.,  43  N.  Y.  S.  R.  683. 

The  court  was  requested  to  charge  that 
plaintiff  was  bound  to  keep  his  team,  so  far 
as  he  reasonably  could,  off  the  tracks  of  a 
street-railroad  company,  so  as  to  permit  the 
free  and  unobstructed  passage  of  the  cars; 
but  the  court  refused,  and  told  the  jury  that 
plaintiff's  horse  was  standing  in  the  street 
where  it  had  a  perfect  right  to  stand.  Held, 
that  this  was  equivalent  to  saying  that 
plaintiff  was  not  bound  to  use  reasonable 
care  in  keeping  off  the  track,  and  was  re- 
versible error.  O'Neill  v.  Third  Ave.  R.  Co., 
52  A^.  Y.  S.  R.  486,  3  Misc.  $21,  23  N.  Y. 
Supp.  20. 

406.  Attempting  to  drive  in  front 
of  moving  cars.— Plaintiff,  while  driving 
in  a  street  on  which  defendant's  track  was 
laid,  was  called  by  a  friend  on  the  opposite 
side  of  the  street.  He  drove  across  the 
track  and  stopped,  as  he  believed,  entirely 
out  of  the  way  of  the  cars,  his  horse's  feet 
being  in  the  gutter ;  but  the  side  fender  of 
a  car  struck  and  injured  his  wagon.  Held, 
that  he  was  guilty  of  contributory  negli- 
gence. Spaulding  v.  Jarvis,  32  Hun  (JV.  Y.) 
621.— Reviewing  Stackusv.  New  York  C. 
&  H.  R.  R.  Co.,  79  N.  Y.  469. 

A  mere  error  in  judgment  in  one  driving 
on  a  street,  in  believing  that  he  can  safely 
cross  in  front  of  an  approaching  car,  does 
not  constitute  negligence  where  he  could 
have  crossed  in  safety  if  the  car  had  been 
properly  managed.  Buhrens  v.  Dry  Dock, 
E.  B.  &»  B.  R.  Co.,  53  Hun  571.  2$  N.  Y.  S. 
R.  191,  6  N.  Y.  Supp.  224;  affirmed  in  125 
.A'^  Y.  702,  mem.,  34  N.  Y.  S.  R.  1012,  mem., 
26  N.  E.  Rep.  752. 

Plaintiff  attempted  to  cross  a  street-car 
track,  in  a  carriage,  in  front  of  a  rapidly 
driven  car  on  a  down  grade,  thinkifig,  as 
she  testified,  that  she  had  time  to  cross,  but 
collided  with  the  car.  Held,  that  she  as- 
sumed the  risk,  and  her  contributory  negli- 
gence prevented  a  recovery.  Thomas  v. 
Citizens'  Pass.  R.  Co.,  46  Am.  <&*  Eng^.  R. 
Cas.  196,  132  Pa.  St.  504,  19  Atl.  Rep.  286. 

Plaintiff,  whose  carriage  was  waiting  at 
the  curb,  without  observing  the  near  ap- 
proach of  a  car  got  into  and  drove  her 
carriage  for  a  short  distance  in  the  same 


STREET   RAILWAYS,  497-501. 


527 


direction  as  the  car,  when  she  suddenly 
turned,  intending  to  cross,  but  in  such 
close  proximity  to  tlie  car  that,  but  for 
the  prompt  action  of  the  driver  in  turn- 
ing his  horse  off  the  tracic,  the  horse  would 
have  collided  with  plaintiff's  carriage;  as  it 
was,  notwithstanding  the  bralce  was  applied 
to  the  car,  the  whifHetree  struck  the  wheel 
of  the  carriage,  which  was  upset,  and  plain- 
tiff was  thrown  to  the  ground,  and  her  leg 
fractured.  Held,  that  she  could  not  re- 
cover. FolUt  V.  Toronto  St.  R.  Co.,  1 5  Ont. 
App.  346.  —  Distinguishing  Radley  v. 
London  &  N.  W.  R.  Co.,  i  App.  Cas.  754 ; 
Allen  V.  North  Metropolitan  Tramway  Co., 
4  L.  T.  561.  Quoting  Wakelin  v.  London 
&  S.  W.  R.  Co.,  12  App.  Cas.  41 ;  Mangani 
V.  Brooklyn  R.  Co.,  38  N.  Y.  455. 

497.  Attempting  to  drive  close 
behind  a  car  up  a  ferry-drop.  —  A 
street-car  was  started  up  a  drop  from  a  ferry, 
but  when  part  way  up  the  horses  failed  to 
pull  it,  and  the  driver  applied  the  brake  and 
held  the  car,  but  failing  to  get  another  horse 
as  a  helper,  as  was  usual,  he  released  the 
brake  and  the  car  ran  back  against  plain- 
tiff's team,  which  was  following  but  twenty 
feet  behind.  Held,  that  the  court  could  not 
say  that  plaintiff  did  not  exercise  ordinary 
prudence  under  the  circumstances.  Cook 
v.  MetropolLuti  R.  Co.,  98  Mass.  361. 

In  such  case,  plaintiff  was  not  bound  to 
suppose  that  the  horses  attached  to  the  car 
were  of  insufficient  strength,  or  unwilling, 
to  move  the  car  and  keep  out  of  the  way  of 
h'^  team,  when  he  kept  at  a  reasonable  dis- 
tance behind.  Cook  v.  Metropolitan  R.  Co., 
98  Mass.  361. 

498.  ImpiitiniT  uegrligence  of 
driver  to  owner  of  a  wagon.  —  The 
owner  of  a  wagon  which  is  destroyed  by 
collision  with  a  street-car  is  affected  by  the 
contributory  negligence  of  his  driver.  Car- 
son V.  Federal  St.  &*  P.  V.  Pass.  R.  Co.,  50 
Am.&'Et^.  R.  Cas.  462,  147  Pa.  St.  219,  23 
Atl.  Rep.  369.— Quoted  in  Christensen  v. 
Union  Trunk  Line,  6  Wash.  75. 

499.  Sitting  while  driving  so  as 
not  to  see  a  defect  in  tracic.— A  per- 
son driving  along  a  track  is  not  as  matter  of 
law  guilty  of  negligence  in  sitting  in  the 
centre  of  a  low  cart,  immediately  behind  his 
horse,  so  as  to  be  unable  to  observe  the 
upturned  end  of  a  rail  forming  part  of  the 
track ,  but  if  the  rail  is  plainly  visible  for 
the  distance  cl  150  feet,  and  should  have 
been  observed  by  him  in  the  exercise  of  or- 


dinary care,  he  is  guilty  of  such  negligence 
as  will  preclude  his  recovery.  Bradwell  v. 
Pittsburgh  &*  IV.  E.  Pass.  R,  Co.,  i^^Pa. 
St.  105,  25  Atl.  Rep.  623. 

500.  Driving  street-car  at  rapid 
speed  over  a  railroad  crossing.  — 
Where  the  driver  of  a  street-car  has  been 
in  the  habit  of  passing  over  a  railroad  track 
some  sixty  times  a  day,  and  could  see  an 
approaching  train  at  forty  feet  from  the 
track,  it  is  imprudent  for  him  to  rely  upon 
looking  from  a  greater  distance  when  he  did 
not  see  any  train,  and,  upon  listening,  did 
not  hear  any,  and  to  drive  so  that  he  could 
not  stop  his  car  within  the  forty  feet.  Man- 
tel v.  Chicago,  M.  &•  St.  P.  R.  Co.,  ig  Am.  6- 
Eng.  R.  Cas.  362,  33  Minn.  62,  21  N.  IV. 
Rep.  853.  —  Approved  in  Seefeld  v.  Chi- 
cago, M.  &  St.  P.  R.  Co..  32  Am.  &  Eng. 
R.  Cas.  109.  70  Wis.  216,  35  N.  W.  Rep. 
278.  Followed  in  Sweeney  v.  Minneapo- 
lis &  St.  L.  R.  Co.,  22  Am.  &  Eng.  R.  Cas. 
302,  33  Minn.  133. 

501.  Releasing  hold  upon  horses 
standing  near  track.  —  It  is  not  con- 
tributory negligence  per  se  for  a  driver  to 
leave  his  horses  untied  on  a  narrow  street 
where  there  is  a  street-car  track  while  he 
goes  near  by  to  deliver  a  parcel.  Albert  v. 
Bleecker  St.,  etc.,  R.  Co.,  2  Daly  (N.  Y.)  389. 

Plaintiff,  who  kept  carriages  for  hire, 
had  a  carriage  and  horses  standing  in  a  city 
at  a  public  hack  stand  near  defendant's 
track.  A  snow-plow  passing  on  the  track, 
as  was  alleged  by  plaintiff,  threw  mud  and 
snow  into  the  carriage  and  frightened  the 
horses,  which  ran  away,  causing  the  princi- 
pal injury  complained  of.  Plaintiff's  driver 
in  charge  did  not  have  hold  of  the  reins, 
but  stood  by  the  open  door  of  the  carriage 
reading  a  newspaper.  Another  driver  near 
saw  the  snow- plow  coming  and  held  his 
horses  by  their  heads.  Plaintiff's  driver  did 
not  observe  the  approach  of  the  plow  and 
took  no  precautions,  and  the  horses  started 
before  he  could  get  hold  of  them.  The 
court,  on  the  trial,  refused  to  nonsuit,  but, 
in  substance,  held  that  defendant  was  only 
liable  in  case  the  jury  found  negligence  on 
its  part  as  to  the  damage  done  to  the  carriage 
by  the  mud  and  snow  which  went  into  the 
open  door.  The  jury  rendered  a  verdict  for 
six  cents  damages.  Held,  that  plaintiff  had 
no  reason  to  complain  ;  that  the  only  error, 
if  any,  was  in  not  granting  a  nonsuit.  Gray 
V.  Second  Ave.  R.  Co.,  65  N.  Y.  561  ;  affirm- 
iiV  (f)  2  /,&*  S.  519.— Distinguished  in 


i| 


/  ! 


528 


STREET   RAILWAYS,  502-504. 


Wasmer  v.  Delaware,  L.  &  W.  R.  Co.,  i 
Am.  &  Eng.  R.  Cas.  132,  80  N.  Y.  212,  36 
Am.  Rep.  608. 
502.  Crossing  track,  generally.— 

Where  n  crippled  person  is  injured  by  a 
street-car  while  crossing  the  street,  proof 
that  she  stopped  to  look  and  listen  for  cars, 
but  saw  none,  and  was  struck  in  one  minute 
thereafter  by  a  car  coming  around  a  curve, 
warrants  a  finding  by  the  jury  that  she  was 
not  guilty  of  contributory  negligence.  Bal' 
timore  Traction  Co.  v.  Wallace,  77  Md.  435, 
26  All.  Rep.  518. 

In  such  case  the  proof  showed  that  when 
plaintiff  started  to  cross  the  street  the  car 
was  around  the  corner  and  could  not  be 
seen.  The  company  asked  the  court  to  in- 
struct that  plaintiff  was  guilty  of  contribu- 
tory negligence  if  a  reasonably  prudent 
person  could  have  seen  the  car  approaching 
for  a  distance  of  one  block  from  the  place 
where  plaintiff  left  the  sidewalk.  Held,  that 
the  instruction  was  properly  refused  as  ir- 
relevant. Baltimore  Traction  Co.  v.  Wal- 
lace, 77  Md.  435,  26  Atl.  Rep.  518. 

The  fact  that  a  traveler  on  a  highway 
perceives  that  an  obstacle  therein  is  dan- 
gerous to  persons  attempting  to  pass  it  is 
not  conclusive  that  he  does  not  use  due  care 
in  making  the  attempt.  Mahoney  v.  Metro- 
politan R.  Co.,  104  Mass.  73.— Quoted  in 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Box,  52 
Ark.  368. 

Plaintiff  started  to  cross  a  street-car 
track  in  front  of  a  rapidly  approaching  car, 
but  was  delayed  by  a  child  six  years  of  age 
which  was  accompanying  her  catching  its 
foot  in  the  track,  and  a  collision  occurred. 
Held,  that  she  was  not  chargeable  with  con- 
tributory negligence  if  she  would  have  had 
ample  time  to  cross  had  it  not  been  for  the 
delay.  Aaron  v.  Second  Ave.  R.  Co.,  2  Daly 
(N.  r.)  127. 

Plaintiff  was  run  over  by  a  street-car 
while  crossing  a  track.  He  was  somewhat 
familiar  with  the  situation,  and  knew  that  a 
great  many  cars  passed.  He  testified  that 
he  looked  both  ways  along  the  track,  and 
saw  a  car  standing  at  some  distance  away ; 
that  he  then  started  to  cross  the  track  and 
was  knocked  down.  The  car  which  caused 
the  accident  came  out  of  a  depot  switch  on 
a  curve  and  entered  the  track  close  to  the 
place  where  plaintiff  was  injured.  If  he  had 
looked  back  upon  the  switch  track,  he  could 
have  seen  the  car  coming.  Just  as  the  car 
reached  the  track  the  speed  of  the  horses 


was  accelerated,  and  there  was  evidence 
tending  to  show  that  but  for  the  increased 
speed  plaintiff  would  have  escaped.  Held, 
that  it  could  not  be  said  as  matter  of  law 
that  plaintiff  was  guilty  of  contributory 
negligence,  but  that  the  question  was  one 
for  the  jury.  McClain  v.  Brooklyn  City  P. 
Co.,  40  Am.  &*  Eng.  R.  Cas.  254,  1 16  A^.  Y. 
459,  22  A^.  E.  Rep.  1062,  27  A';  Y.  S.  R.  549 ; 
affirming  42  Hun  657,  6  N.  Y.  S.  R.  49. 

603.  Walking  on  or  near  the  track. 
— Plaintiff  was  walking  about  twilight  upon 
a  street-car  track,  in  the  outskirts  of  a  city, 
for  no  other  reason  than  that  it  was  better 
walking  on  the  track  than  on  the  driveway, 
and  was  injured  by  a  car  moving  at  an  ordi- 
nary rate.  Held,  that  his  contributory  neg- 
ligence would  defeat  a  recovery,  notwith- 
standing the  negligence  of  the  company. 
Childs  V.  New  Orleans  City  R.  Co.,  33  La. 
Ann.  154.— Distinguished  in  Ketchum  v. 
Texas  &  P.  R.  Co.,  38  La.  Ann.  777. 

Plaintiff,  a  boy  twelve  and  a  half  years 
old,  was  sent  to  procure  ice  from  a  cart,  and 
walked  along  a  street-car  track  by  the  side 
of  the  cart,  which  made  a  good  deal  of  noise, 
for  the  purpose  of  procuring  the  ice.  He 
was  struck  by  a  street-car  which  approached 
from  behind,  and  which  was  five  to  ten  min- 
utes late,  and  hurrying  to  make  up  the  time. 
The  driver  shouted  to  the  boy,  but  made  no 
attempt  to  stop  until  very  near  him.  Plain- 
tiff knew  that  no  car  was  due  at  that  time. 
Held,  that  the  question  of  whether  he  exer- 
cised due  care  was  for  the  jury.  Howland 
V.  Union  St.  R.  Co.,  1 50  Mass.  86,  22  N.  E. 
Rep.  434. 

It  is  not  negligence  per  se  to  travel  along 
a  public  highway  by  the  side  of  a  street- 
railway  track  on  which  a  car  is  moving  in 
the  same  direction  as  the  party  traveling, 
unless  such  party  places  himself  in  such 
position  as  to  be  run  over  or  injured  by  such 
street-car.  Brooks  v.  Lincoln  St.  R.  Co.,  37 
Am.  &*  Eng.  R.  Cas.  560.  22  Neb.  816,  36  .V. 
W.  Rep.  529. 

504.  Stopping  car  on  street  cross- 
ing—Passing over  car  platform.— 
Where  a  street-car  is  stopped  so  as  to  ob- 
struct the  passage  of  a  traveler  on  foot  de- 
siring to  cross  the  street,  it  is  not  a  trespass 
or  wrongful  act  on  his  part  to  step  upon  and 
pass  over  the  platform  of  the  car  in  order 
to  avoid  the  obstruction  ;  he  has  the  right 
so  to  do.  Shea  v.  Sixth  Ave.  R.  Co.,  62  N. 
Y.  180;  affirming  5  Daly  221,  13  Am.Ry. 
Rep.  154. 


STREET   RAILWAYS,  505-607. 


529 


500.  Standing  on  walk  between 
tracks.  —  Plaintiff's  cart  ran  on  a  curve 
over  a  sidewalk  for  the  purpose  of  entering 
a  depot.  Plaintiff  stopped  on  the  sidewalk 
to  wait  for  a  car,  having  a  baby  in  her  arms 
and  a  little  girl  by  her  ;>ide.  She  testified 
that  she  saw  two  cars  approaching,  and, 
finding  herself  in  danger,  motioned  to  the 
driver  to  stop,  which  he  failed  to  do,  and 
she  was  knocked  down  and  injured.  The 
defendant  offered  evidence  tending  to  show 
that  she  attempted  to  cross  the  track,  and 
seeing  a  car  approaching  ran  back  and  into 
the  other  car,  which  had  come  to  a  full  stop, 
and  was  thereby  injured.  Held,  that  a  ver- 
dict for  plaintiff  would  not  be  disturbed. 
0' Toole  v.  Ctntral  Park,  N.  &*  E.  K.  Ji. 
Co.,  35  N.  V.  S.  R.  S9I,  $8  Hun  609,  12  A': 
Y.  Supp.  347;  affirmed  in  128  N.  Y,  597, 
mem.,  38  A':  Y.  S.  R.  loii. 

In  such  case  plaintiff  had  a  right  to  stand 
on  the  sidewalk,  and  she  had  a  right  to  as- 
sume  that  the  company  in  crossing  the  side- 
walk would  show  proper  respect  for  the 
rights  of  foot  passengers.  Tlierefore  no 
claim  of  contributory  negligence  could  be 
predicated  upon  her  stopping  where  she  did, 
though  it  was  in  front  of  the  depot.  0'  Toole 
v.  Central  Park,  N.  &>  E.  R.  R.  Co.,  35  A'; 
Y.  S.  -/P.  591,  58  Hun  609,  12  A^.  Y.  Supp. 
347;  affirmed  in  128  N.  Y.  597,  mem.,  38  A^. 
Y.S.  R.  loii. 

500.  Falling  on  track.— Where  plain- 
tiff stumbled  and  fell  on  a  street-car  track, 
it  is  immaterial  that  he  did  not  look  to  see 
whether  a  car  was  approaching  before  he 
attempted  to  cross  the  track,  if  there  was 
abundance  of  time  to  have  crossed  had  it 
not  been  for  the  fall.  The  due  care  that  he 
was  required  to  exercise  did  not  require 
him  to  anticipate  the  probability  of  the  fall. 
Mentz  v.  Second  Ave.  R.  Co.,  3  Abb.  App. 
Dec.  (N.  Y.)  274 ;  affirming  2  Robt.  356. 

In  such  case  it  is  not  sufficient  to  relieve 
the  driver  of  a  car,  that  he  exercised  ordi- 
nary care  to  avoid  the  injury.  Ordinary  care 
is  not  sufficient  under  such  circumstances. 
If  the  driver  of  a  car  sees  a  person  lying 
upon  the  track,  it  is  his  duty  to  exercise  the 
very  highest  care  and  to  make  the  greatest 
effort  to  avoid  an  injury.  Mentz  v.  Second 
Ave.  R.  Co.,  3  Abb.  App.  Dec.  (N.  Y.)  274 ; 
affirming  2  Robt.  356. 

Plaintiff,    carrying    a    grocer's    basket, 

started  to  cross  a  street  on  a  crosswalk  that 

was  covered  with  ice,  when  a  horse-car  was 

rapidly  approaching  nearly  200  feet  away, 

7  D.  R.  D.  -34 


but  on  an  up  grade ;  but  she  slipped  and  fell, 
and  was  run  over.  Held,  that  it  was  proper 
to  charge  the  jury  that  she  was  only  required 
to  exercise  "  common,  ordinary  care  and 
prudence  "  under  the  circumstances,  and  to 
refuse  to  charge  that  she  ought  not  to  have 
attempted  to  cross  if  there  was  danger  of 
slipping  or  falling.  Baxter  v.  Second  Ave.  R. 
Co.,  3  Robt.  (A'.  K.)  510,  30  How.  Pr.  219.— 
Quoting  Munger  v.  Tonawanda  R.  Co.,  4 
N.  Y.  349- 

607.  When  for  jury.  —  Plaintiff  be- 
longed to  a  fire  company,  and  being  unable 
to  dress  himself  fully  before  starting  for  a 
fire,  threw  his  leg  between  the  rounds  of  a 
ladder  for  the  purpose  of  holding  on  while 
adjusting  his  belt,  and  while  so  riding  the 
end  of  the  ladder  struck  a  street-car,  which 
injured  him.  Held,  that  he  could  not  be 
expected  to  use  the  same  degree  of  care 
as  might  properly  be  required  of  one  who 
had  no  such  duty  to  perform,  ar.d  consider- 
ing his  duty  and  tlie  exigencies  of  the  occa- 
sion, the  court  could  not  say  that  he  was  not 
in  the  exercise  of  due  care.  Magee  v.  West 
End  St.  R.  Co.,  151  Mass.  240,  23  A^.  E. 
Rep.  1 102. 

A  company  allowed  snow  to  be  thrown 
up  beside  its  track  and  packed  down,  so 
as  to  leave  a  depression  at  the  track,  at  a 
street  crossing,  of  from  six  to  ten  inches  or 
more,  with  a  sharp  slope  downward  ;  and  a 
party  in  the  proper  use  of  the  highway 
sought  to  cross  the  track  at  such  crossing, 
but  his  cutter  was  overturned  and  he  was 
injured.  It  further  appeared  that  the  place 
was  one  where  an  impracticable  crossing 
would  have  been  an  unlawful  obstruction 
of  a  public  way,  and  that  it  ws  being 
crossed  habitually.  Held,  that,  in  the 
absence  of  proof  that  the  injured  party  acted 
in  a  careless  manner  in  making  the  crossing, 
the  question  of  his  contributory  negligence 
was  for  the  jury.  Laughlin  v.  Grand  Rapids 
St.  R.  Co.,  26  Am.  &>  Eng.  R.  Cas.  377,  62 
Mich.  220,  28  A^.  W.  Rep.  873. 

The  question  whether,  being  in  a  wagon 
on  the  track  of  a  street  railway,  plaintiff  and 
her  husband  used  reasonable  diligence  and 
ordinary  care  to  prevent  a  collision,  is  for 
the  jury.  Rascher  v.  East  Detroit  &*  G.  P. 
R.  Co.,  90  Mick.  413,  51  A^.  W.  Rep.  463. 

Plaintiff,  in  attempting  to  cross  a  track, 
was  struck  by  the  pole  of  an  approaching 
car,  knocked  down,  and  dragged  thirty  or 
forty  feet.  While  held  between  the  scraper 
and  the  wheel,  bystanders  raised  the  end  of 


530 


STREET   RAILWAYS,  008,  009. 


i 


.;:  1 


I    ]. 


the  car  to  remove  plaintiff,  but  were  com- 
pelled, by  a  movement  of  the  horses,  to 
drop  it  before  pluintiflf  was  rescued,  whereby 
he  sustained  dangerous  injuries.  Plaintiff's 
view  of  the  track  was  obstructed  by  other 
vehicles.  The  driver  was  a  boy  of  fifteen 
and  a  half  years,  lacking  strength  needful 
for  his  employment.  The  speed  of  the  car 
was  greater  than  that  allowed  by  ordinance, 
but  a  competent  driver  could  have  stopi>ed 
the  car  within  fifteen  feet,  and  within  less 
distance  had  the  speed  of  the  car  been 
within  the  limit  of  the  city  ordinance.  Held, 
that  the  negligence  of  defendant  and  con- 
tributory negligence  of  plaintiff  were  ques- 
tions for  the  jury.  Wall  v.  Helena  St.  R. 
Co.,  so  Am.  d»  £Hff.  /i.  Cas.  474,  13  Mont. 
44,  29  Pac.  Rep.  721.— Quoting  Schierhold 
V.  North  Beach  &  M.  R.  Co.,  40  Cal.  447; 
Wright  V.  Maiden  &  M.  R.  Co.  4  Allen 
(Mass.)  283 ;  Hanlon  v.  South  Boston  Horse 
R.  Co.,  129  Mass.  310. 

Plaintif!  was  driving,  and  when  within 
about  ten  feet  of  a  street-car  track  he  saw 
a  car  approaching  rapidly  on  a  down  grade, 
but  about  seventy  feet  away.  He  trusted 
to  his  judgment  in  believing  he  could  cross, 
but  collided  with  the  car  and  was  injured. 
Held,  that  the  question  of  his  contributory 
negligence  was  for  the  jury.  Buhrens  v. 
Dry  Dock,  E.  B.  &*  B.  R.  Co.,  25  A^.  Y.  S. 
R.  191,  6  A^.  Y.  Supp.  224,  53  Hun  571 ; 
affirmed  in  11$  N.  Y.  702,  mem.,  26  N.  E. 
Rtp.  75*- 

In  such  case  plaintiff  had  a  right  to  as- 
sume that  the  driver  of  the  car  would  give 
him  the  way  to  which  his  position  at  tlie 
crossing  already  entitled  him.  Buhrens  v. 
Dry  Dock,  E.  B.  &•  B.  R.  Co.,  25  A^.  Y.  S. 
R.  191,  6  A'.  Y.  Supp.  224,  S3  Hun  571 ; 
affirmed  in  125  N.  Y.702,  mem.,  26  N.  E. 
Rep.  752. 

Plaintiff's  intestate,  a  man  sixty-one  years 
old,  after  looking  both  ways,  tried  to  cross 
a  street  where  there  were  three  tracks,  and 
while  a  car  was  approaching  only  fifty  feet 
away,  but  was  struck  and  killed  on  the 
third  track.  He  was  in  full  view  of  the 
driver,  who  did  not  check  his  speed  and 
who  was  driving  faster  than  usual.  Held, 
that  the  question  of  his  contributory  negli- 
gence was  for  the  jury.  Wells  v.  Brooklyn 
City  R.  Co.,  58  Hun  389,  34  N.  Y,  S.  R.  636, 
tiN.  Y.  Supp.  67. 

SOS.  Failure  to  observe  that  a  car 
was  without  bellM.— In  an  action  against 
a  company  for  death  at  a  crossing,  it  is  error 


to  instruct  the  jury  that  the  deceaMd  had 
a  right  to  presume  that  defendant  had  com- 
plied with  the  law  as  to  providing  bells  for 
its  team,  in  the  absence  of  knowledge  to 
the  contrary,  and  that  the  failure  to  have 
bells  on  the  team  hauling  the  car  was  negli> 
gence,  and  that  if  the  failure  to  provide  the 
bells  was  the  direct  cause  of  the  injury,  they 
must  fmd  for  plaintiff,  where  it  appeared  that 
tlie  accident  happened  in  'he  daytime,  that 
the  street  was  clear  from  obstructions,  that 
tlic  team  was  moving  at  a  walk,  in  full  view 
of  the  deceased,  who  was  well  acquainted 
with  the  street  and  in  full  possession  of  his 
senses;  because  the  instruction  took  from 
the  jury  the  question  whether,  if  deceased 
had  exercised  due  care,  he  might  have  dis- 
covered the  absence  of  the  bells,  and  be- 
cause the  presumption  that  defendant 
would  obey  the  laws  and  attach  the  bells 
must  cease  if  actual  knowledge  to  the  con- 
trary were  shown.  Lynch  v.  Metropolitan 
St.  R.  Co.,  $6  Am.  A*  Eng.  R.  Cas.  571,  112 
Mo.  420,  20  S.  W.  Rep.  642. 

In  such  case  defendant  has  a  right  to  rely 
upon  the  exercise  of  ordinary  prudence  on 
the  part  of  pluintifT,  as  in  this  case  on  the 
part  of  the  deceased,  and  plaintiff  has 
a  right  to  presume  due  care  on  the  part 
of  defendant,  the  obligation  being  mutual 
and  correlative.  Lynch  v.  Metropolitan  St. 
R.  Co.,  56  Am.  &>  Eng,  R.  Cas.  571,  112  Mo. 
420,  20  5.  W.  Rep.  642. 

ffOO.  Duty  to  Ket  oflTtraclc  in  time. 
— Where  plaintiff  is  driving  upon  a  track 
when  a  car  is  approaching  from  the  opposite 
direction,  at  a  short  distance  and  i'< 
sight,  it  is  his  duty  to  turn  oil  th  ^o 

avoid  a  collision,  and  if  he  docs  i  o  so, 
through  negligence  or  wilfulness,  md  a 
collision  ensues,  he  cannot  recover  against 
the  company,  even  if  the  latter  was  also  in 
fault,  unless  the  company  or  its  servants 
wilfully  caused  the  injury,  or  are  guilty  of 
such  negligence  or  reckless  conduct  that 
plaintiff's  is  slight  when  compared  with  it. 
Chicago  W.  D.  R.  Co.  v.  Bert,  69  ///.  388. 
—Distinguished  in  Louisville,  N.  A.&  C. 
R.  Co.  V.  Phillips,  31  Am.  &  Eng.  R.  Cas. 
433,  112  Ind.  59. 

It  is  the  duty  of  a  person  on  foot  or  on 
horseback,  or  having  a  wheeled  carriage 
under  his  control,  moving  on  the  track  of  a 
city  railway,  to  keep  a  lookout  for  a  car, 
e.ititled  to  move  and  in  the  practice  of  mov- 
ing in  an  opposite  direction  on  the  same 
railway  ;  and  to  begin  to  turn  off  the  track 


STREET   RAILWAYS,  AlO-ftlS. 


531 


soon  enough  to  allow  the  cars  to  pass 
without  impediment  or  hindrance.  Jatko 
V.  Grten  *•  C.  St.  Pats.  Ji.  Co.,  4  Phila. 
(Pa.)  24. 

SIO.  Intoxication.  —  The  fact  that  a 
person  injured  by  the  negligence  of  the 
driver  of  a  horse-car  was  intoxicated  at  tiie 
time  of  the  accident  will  not  prevent  his 
maintaining  an  action  for  damages,  unless 
his  intoxication  contributed  to  the  injury. 
Ataguire  v.  MtddUux  R.  Co.,  1 1 5  Mass.  239. 

In  an  action  against  a  street-car  company 
for  negligently  causing  death,  the  driver  of 
the  car  that  caused  the  injury  testified  that 
the  deceased  "  came  staggering  over  to  catch 
the  horses  by  the  heads ;  he  seemed  to  me  to 
be  drunk,  but  I  could  not  say  positively  he 
was."  Held,  that  this  was  sufficient  evidence 
to  entitle  the  company  to  a  specific  charge 
upon  the  question  of  intoxication,  and  a 
submission  to  the  jury.  Bradley  v.  Second 
Ave.  R.  Co.,  8  Daly  (N.  Y.)  289. 

011.  lYlieu  not  a  defense.  —  Con- 
tributory negligence  on  the  part  of  a  person 
injured  by  a  street-car  will  not  relieve  the 
company  from  liability,  if  it  appears  that 
the  injury  might  have  been  avoided,  by  the 
use  of  ordinary  care,  after  those  in  charge 
of  the  car  saw  the  injured  person,  or  if,  by 
the  use  of  such  care,  the  person  might  have 
been  discovered  in  time  to  have  avoided 
the  injury.  Baltimore  Traction  Co.  v. 
Wallace,  77  Aid.  435,  26  Atl.  Rep.  518. 

If  the  driver  of  a  vehicle  is  placed  in  a 
state  of  peril  by  the  negligence  of  those 
having  charge  of  a  car,  the  company  is  re- 
sponsible fur  the  consequences,  since  "  a  de- 
fendant cannot  impute  a  want  of  vigilance 
to  one  injured  by  his  act  of  negligence,  if 
that  very  want  of  vigilance  was  the  conse- 
quence of  an  omission  of  duty  on  his. 
part."  Gibbons  v.  Wilkes-Barre  &*  S.  St.  R. 
Co.,  56  Am.  &*  Eng.  R.  Cas.  600,  155  Pa. 
St.  279,  26  Atl.  Rep.  417. 

612.  "Worlciug  near  trade.  —  Plain- 
tiff was  working  at  the  rear  end  of  a  coal 
wagon  which  stood  about  eighteen  inches 
from  defendant's  track,  leaving  plenty  of 
room  for  cars  to  pass.  Plaintif!  was  struck 
by  a  passing  car  and  injured.  There  was 
no  evidence  that  the  driver  wantonly  ran 
plaintiff  down,  or  that  he  intended  to  in- 
jure him,  or  had  any  reason  to  suspect  that 
plaintiff  was  in  the  slightest  peril  or  danger. 
Held,  that  the  complaint  was  properly  dis- 

*  Sec  also  ante,  375. 


missed.  AUKehey  v.  Twenty-third  St.  R. 
Co.,  S  Afisc.  424,  26  A'.  Y.  Supp.  711. 

513.  Rule  wliere  man  is  niarcliing 

in  prooession.— Plaintiff  was  marching  in 
a  procession  in  quasi  military  array,  when 
he  was  injured  by  a  street-car.  There  was 
nothing  to  show  that  the  persons  composing 
the  procession  had  any  special  right  to  use 
the  streets,  or  any  other  or  greater  right 
than  belonged  to  any  other  citizens,  or  that 
they  had  taken  the  steps  provided  by  N.  Y. 
Act  of  1872,  ch.  590,  to  procure  a  special 
license  to  use  the  streets.  Held,  tiiat  plain- 
tiff and  those  marching  with  him  were 
held  to  the  same  rule  of  care  as  in  the  case 
of  other  travelers  on  the  street.  Brown  v. 
Broadway  &*  S.  A.  R.  Co.,  iS /.  &*  S.  {N. 
Y.)  106. 

Independent  of  any  statutory  provision, 
the  company  had  an  equal  right  with  plain- 
tiff to  use  the  street,  and  no  persons  using 
the  street,  either  singly  or  in  a  procession, 
had  the  right  to  monopolize  it  so  as  un- 
necessarily to  obstruct  the  passage  of  cars. 
Brown  v.  Broadway  &*  S.  A.  R.  Co.,  18  /. 
«S*  S.  {N.  Y.)  106. 

If  a  military  company  occupies  the  whole 
of  a  street,  street-cars  should  stop  long 
enough  to  give  them  time  to  move  forward 
and  pass  the  car  on  one  or  both  sides  of  it ; 
but  a  person  riding  at  the  head  of  such  pro- 
cession is  bound  to  look  out  at  a  proper 
time  and  sec  if  a  car  is  coming,  /atho  v. 
Green  6-  C.  St.  Pass.  R.  Co.,  4  Phila.  {Pa.)  24. 

514.  Biglit  to  recover  for  injury 
received  wliile  doing  unlawftil  act.— 
Mass.  Gen.  St.  ch.  64,  §  2,  provides  that 
telegraph  companies  may  construct  lines  of 
telegraph  upon  and  along  the  highways  and 
public  roads,  upon  procuring  a  writing  from 
the  mayor  and  aldermen.  Plaintiff  was  en- 
gaged in  putting  up  wires  for  a  company 
that  had  procured  no  such  writing,  and  was 
climbing  a  pole,  with  a  wire  looped  around 
his  body,  when  the  wire  was  struck  by  a 
street-car  and  he  was  injured.  Held,  that 
the  jury  should  have  been  instructed  that 
plaintiff  was  doing  an  illegal  act  which  con- 
tributed to  the  injury,  and  that  he  was  not 
entitled  to  recover,  unless  the  driver  of  the 
car  recklessly  and  wantonly  drove  against 
the  wire.  Banks  v.  H^hland  St.  R.  Co.,  19 
Am.  6»  Eng.  R.  Cas.  139,  136  Atass.  485. 

515.  Presumption  of  negligence. 
— As  a  street-car  cannot  vary  from  the  line 
of  its  track,  where  it  appears  that  a  car 
and  a  cart  are  both  passing  side  by  side  in 


532 


STREET   RAILWAYS,  616-518. 


the  same  direction,  with  a  space  of  a  foot 
and  a  half  to  two  feet  between  them,  if  a 
collision  occurs,  the  presumption  of  negli- 
gence is  altogether  against  the  driver  of  the 
cart,  and  not  against  the  conductor  of  the 
car.  Suydam  v.  Grand  St.  6*  N.  R.  Co.,  17 
Abb.  Pr.  {N.  Y.)  304,  41  Barb.  375. 

01 6*  Burden  on  defendant  to 
prove  contributory  negligence.*  — 
In  an  action  to  recover  for  injuries  by  being 
run  over  by  a  street-car,  where  the  plaintiff 
shows  negligence  on  the  part  of  the  driver, 
if  contributory  negligence  be  set  up  as  a 
defence  the  defendant  must  prove  it,  and  it 
need  not  be  disproved  in  the  first  instance 
by  the  plaintif!.  Washington  &•  G.  R.  Co. 
V.  Gladmon,  15  Wall.  (I/.  S.)  401,  4  Am. Ry. 
Rep.  500.— Approved  in  Gram  v.  Northern 
Pac.  R.  Co.,  I  N.  Dak.  253.  Followed  in 
Hopkins  v.  Utah  Northern  R.  Co.,  2  Idaho 
277 ;  Indianapolis  &  St.  L.  R.  Co.  v.  Horst, 
93  U.  5.  291 ;  Higley  v.  Gilmer,  3  Mont.  90. 
Hot  followed  in  Owens  v.  Richmond  & 
D.  R.  Co.,  88  N.  Car.  502.  Quoted  in 
Sanders  v.  Reister,  i  Dak.  151 ;  Chicago  & 
A.  R.  Co.  V.  Murray,  71  III.  601 ;  Paducah  & 
M.  R.  Co.  V.  Hoehl.  12  Bush  (Ky.)  4>-  Re- 
viewed in  Conroy  v.  Oregon  Constr.  Co., 
10  Sawy.  (U.  S.)  630,  23  Fed.  Rep.  71. 

5.  Injuries  to  Employes. 

617.  By  vicious  horses.t  — It  is  the 

duty  of  a  street-car  company  which  em- 
ploys a  servant  to  attend  to  its  horses  to 
use  a  reasonable  degree  of  observation  in 
ascertaining  the  character  of  the  horses,  and 
to  prevent  any  horse  that  is  dangerous  from 
being  kept  in  its  stalls.  Knowledge  by  the 
superintendent  of  the  stables,  or  by  a  head 
hostler,  of  the  viciousness  of  a  horse  is 
knowledge  by  the  company.  McGarry  v. 
New  York  **  H.  R.  G» ,  45  N.  Y.  S.  R. 
564.  18  N.  Y.  Supp.  19s;  affirmed  in  137  A': 
K.  627,  mem.,  ^x  N.  Y.  S.  /f.  93'.  33  N.  E. 
Rep.  745. 

Where  an  employ^  sues  for  an  injury 
caused  by  a  vicious  horse,  an  instruction 
that  if  the  horse  from  the  time  of  its  pur- 
chase  had  been  fed  and  cared  for  in  rhe 
manner  in  which  plaintiff  was  required  to 
do  so,  without,  to  defendant's  knowledge, 
attacking  or  injuring  any  person,  then  de- 

*  See  also  ante,  442. 

t  Liability  of  horse-car  company  for  injury  to 
driver  caused  by  vicious  hurse,  see  53  Am.  6^ 
Eno.  R.  Cas.  209.  abitr. 


fendant  was  justified  in  believing  that  it 
was  safe  for  plaintiff  to  feed  and  take  care 
of  him,  and  that  plaintif!  could  not  recover, 
is  properly  refused.  McGarry  v.  New  York 
&*  H.  R.  Co.,  45  N.  Y.  S.  R.  564,  \Z  N.  Y. 
Supp.  195;  affirmed  in  137  N,  Y.  627,  mem., 
SI  N.  Y.  S.  ^.  93«.  33  ^-  E-  Hep-  745- 

In  such  case,  if  the  employ6  is  ordered 
to  tend  a  horse  that  is  dangerous  and 
vicious,  it  is  the  duty  of  the  company  to 
warn  him  of  the  character  of  the  horse, 
if  it  is  known  to  the  company.  McGarry  v. 
New  YorJk&'  H.  R.  Co., 4$  ^-  Y.  S.  R.  564, 18 
A^.  Y.  Supp.  19s ;  affirmed  in  137  A':  Y.  627, 
mem.,  $1  N.  Y.  S.  /?.  931,  33  A'.  E.  Rep.  7 4$. 

In  such  case  it  it  not  necessary  for  the 
empluy6  to  prove  that  the  horse  had,  to 
the  knowledge  of  the  company,  previously 
done  similar  mischief.  It  is  sufficient  if 
the  previous  knowledge  of  the  company 
would  lead  a  reasonable  mind  to  infer  that 
the  horse  was  likely  to  be  vicious.  McGarry 
V.  New  York  &'  H.  R.  Co.,  45  A^.  Y.  S.  R. 
564,  18  a;  Y.  Supp.  195 ;  affirmed  in  137  N. 
Y.  627,  mem.,  n  N.  Y.  S.  V?.  931,  33  A^.  E. 
Rep.  745- 

Plaintiff,  who  was  employed  as  a  hostler 
by  a  street-car  com[>any,  received  an  injury 
from  the  kick  of  a  vicious  mare,  while 
grooming  her.  The  fact  of  the  mare's 
being  vicious  was  known  by  him,  by  other 
employes  of  the  company,  and  by  the  offi- 
cers r'.  i^of.  Plaintiff  had  once  before 
been  ':>  ked  by  the  same  mare,  but  had  not 
asked  tu  have  her  taken  from  his  care.  At 
the  time  of  the  accident  he  was  not  using  a 
strap  which  he  ordinarily  used  when  groom- 
ing  the  mare  to  prevent  her  from  kicking. 
Held,  that  he  was  not  entitled  to  recover. 
Green  &*  C.  St.  Pass.  R.  Co.  v.  Bresmer,  4 
Am.  &*  Etig.  R.  Cas.  647,  97  Pa.  St.  103. 

'In  such  case  evidence  is  admissible  to 
show  that  the  company  knew  of  the  vicious 
character  of  the  animal,  and  that  the  stable 
boss  was  possessed  of  such  knowledge,  and 
had  had  a  conversation  with  the  superin- 
tendent of  the  company  relative  to  the  sale 
of  the  mare.  Green  &*  C.  St.  Pass.  R,  Co, 
V.  Bresmer,  4  Am.  &*  Eng.  R.  Cas.  647,  97 
Pa.  St.  103. 

618.  Driving  against  railroad  flag> 
man. — Plaintif!  was  stationed  as  a  flagman 
in  a  narrow  space  between  an  ordinary  rail- 
road track  and  a  street-car  track,  end  while 
standing,  in  the  discharge  of  his  duties, 
with  his  back  to  a  street-car,  but  in  plain 
view  of  the  driver  for  several  hundred  feet, 


STREET   RAILWAYS,  510. 


533 


was  Injured.  Held,  that  there  was  sufficient 
proof  to  show  negligence  on  the  part  of  the 
company,  and  due  care  on  the  part  of  plain- 
tiff. D'Oro  V.  Atlantic  Avt.  R.  Co.,  13  A'; 
Y.  Supp.  789,  37  N.  Y.  S.  R.\\\;  affirmed 
in  129  N.  Y.  632,  mem.,  41  ^V.  Y.  S.  R.  946, 
29  N.  E.  Rep.  1030. 

6.  Expulsion  of  Passengers. 

SIO.  For  uon-payment  of  fare.— 

A  rule  of  a  company  requiring  passengers 
to  deposit  their  fare  upon  entering  the  car 
is  reasonable,  and  the  refusal  of  a  passenger 
to  comply  with  the  rule  after  demand  war- 
rants the  company  in  evicting  him  from  the 
car,  using  no  more  force  than  is  necessary. 
Nye  V.  Marysville  &*  Y.  C.  St.  R.  Co.,  97 
Cal.  461,  32  Pac.  Rsp.  530. 

If  a  person  is  a  trespasser  upon  a  car,  or  is 
unlawfully  riding  without  the  payment  of 
fare,  and  the  conductor  undertakes  to  re- 
move him,  he  must  act  in  a  prudent  manner, 
and  exercise  due  care  for  the  safety  of  such 
person ;  and  if  he  fails  to  do  so,  and  in 
consequence  thereof  such  person  is  injured, 
the  company  will  be  liable.  North  Chicago 
City  R.  Co.  V.  Gastka,  39  Am.  6-  Eng.  R. 
Cas.  377,  128  ///.  613,  21  N.  E.  Rep.  522; 
affirming  27  ///.  App.  518. 

It  is  the  duty  of  a  passenger  to  secure 
evidence  of  the  payment  of  fare  necessary 
to  entitle  him  to  passage  on  a  street-car, 
under  some  contract  with  the  company,  and 
the  conductor  is  under  no  legal  obligation 
to  accept  the  passenger's  statement  as  to 
that  fact.  Mahoney  v.  Detroit  St.  R.  Co.,  52 
Am.  &»  Eng.  R.  Cat.  581,  93  Mich.  612,  53 
N.  IV.  Rep.  793.— Distinguishing  HuHord 
V.  Grand  Rapids  &  I.  R.  Co.,  64  Mich.  631 ; 
Carsten  v.  Northern  Pac.  R.  Co.,  44  Minn. 
454;  Pennsylvania  Co.  v.  Bray,  125  Ind. 
229;  Lake  Erie  &  W.  R.  Co.  v.  Fix,  88  Ind. 
384;  Palmer  V.  Charlotte.  C.  &  A.  R.  Co.,  3 
So.  Car.  580;  Burnham  v.  Grand  Trunk  R. 
Co.,  63  Me.  298 ;  Eddy  v.  Rider,  79  Tex.  57 ; 
New  York,  L.  E.  &  W.  R.  Co.  v.  Winter,  143 
U.  S.  60;  Toledo,  W.  &  W.  R.  Co.  v.  Mc- 
Dnnough,  53  Ind.  289.  Reviewing  Ham- 
ilton V.  Third  Ave.  R.  Co.,  53  N.  Y.  25. 

Where  a  passenger  has  a  valid  contract 
with  a  street-car  company  for  passage  over 
its  road,  but  lacks  the  required  evidence  of 
that  fact,  it  is  his  duty  to  pay  the  fare  when 
it  is  demanded  by  the  conductor,  and  to  seek 
redress  from  the  company  to:  a  violation  of 
the  contract.     Mahoney  v.  Detroit  St.  R,  Co., 


52  Am.  &*  E>ig.  R.  Cas.  581,  93  Mich.  612. 

53  N.  fV.  Rep.  793.— Quoting  Frederick 
V.  Marquette,  H.  &  O.  R.  Co.,  37  Mich.  346. 

A  genuine  silver  coin,  worn  smooth  by 
use,  not  appreciably  diminished  in  weight, 
and  distinguishable,  is  legal  tender  for  car 
fare;  and  if  ejected  for  refusal  to  make 
other  payment,  the  passenger  may  have  an 
action  for  damages.  Jersey  City  &>  B.  R. 
Co.  V.  Morgan,  40  Am.  &*  Eng.  R.  Cas.  675, 
$2N./  L.60,  18  At  I.  Rep.  904 ;  affirmed  in 
52  A^.  /.  L.  558,  2!  Atl.  Rep.  783. 

A  conductor  has  a  right  to  expel  a  person 
from  a  car  foi  refusal  to  pay  fare  upon  de- 
mand ;  but  thii;  is  not  a  right  to  be  exercised 
in  a  manner  regardless  of  the  circun-.stances. 
A  person  cannot  be  thrown  from  a  car  in 
rapid  motion  without  the  most  imminent 
danger  to  life ;  and  although  he  may  be 
liable  to  expulsion,  he  may  lawfully  resist  an 
attempt  to  expel  him  in  such  a  case.  A  re- 
fusal to  pay  fare  will  not  justify  any  act 
which  puts  human  life  in  peril.  Sanfords. 
Eighth  Ave.  R.  Co.,  23  N.  Y.  343 ;  reversing 
7  Bosw.  122. 

The  evidence  showed  that  the  conductor 
of  a  car,  without  arresting  its  motion, 
seized  plaintiff's  testate  and  forcibly  ejected 
him  from  the  front  platform.  The  danger 
attending  such  an  act  was  increased  by  the 
fact  that  it  was  night,  and  a  high  bank  of 
snow  was  thrown  on  each  side  of  the  track, 
which  caused  him  to  roll  under  the  car, 
where  he  received  fatal  injuries.  Held,  that 
the  act  of  the  conductor  was  unlawful,  and 
not  excused  by  the  fact  that  the  testate  re- 
sisted. He  had  a  right  to  do  so.  San/ord 
V.  Eighth  Ave.  R.  Co.,  23  N.  Y.  343 ;  revers- 
ing 7  Bosw.  122. 

Where  defendant  justifies  plaintiff's  ex- 
pulsion from  one  of  its  street-cars  by  the 
refusal  of  plaintiff  to  pay,  pursuant  to  a 
rule  of  defendant,  additional  fare  for  each 
parcel  too  large  to  be  carried  on  the  lap  of 
the  passenger  without  incommoding  others, 
the  question  whether  two  parcels  consisting 
of  picture  frames  twenty  by  twenty-four 
inches  in  size  are  within  the  regulation  is  one 
of  fact  to  be  decided  by  the  jury.  Morris  v. 
Atlantic  Ave.  R.  Co.,  40  Am.  &*  Eng.  R.  Cas. 
677,  116  A';  Y.  552,  22  A^  E.  Rep.  1097,  27 
A^  Y.  S.  R.  667 ;  reversing  5  A'.  Y.  S.  R.  874. 

The  question  of  the  negligence  of  a 
street-car  driver  in  attempting  to  remove  a 
passenger  from  the  car,  while  it  is  in  motion, 
for  non-payment  of  fare,  is  for  the  jury. 
ir^itley  V.  City  Pass.  R.  Co.,  28  Ohio  St.  23. 


•Tf- 


534 


STREET  RAILWAYS.  520-622. 


Following  Murphy  v.  Union  R.  Co.,  ii8 
Man.  228. 

A  company  is  liable  in  damages  (or  the 
ejection  of  a  passenger  for  non-payment  of 
fare  where  it  appears  that  the  passenger 
had  dropped  his  fare  in  the  box  in  obedience 
to  a  posted  rule  of  the  company,  and  had  no 
Icnowledge  of  private  directions  to  the 
drivers  to  go  through  the  cars  when  they 
were  crowded  and  collect  the  fares.  Perry 
V.  Pittsburgh  Union  Pass.  K.  Co.,  153  Pa. 
St.  236,  25  Atl.  Rep.  772. 

In  such  a  case  the  passenger  is  entitled  to 
recover  for  the  injury  to  his  feelings  and  the 
humiliation  inflicted  upon  him  by  the  tres- 
pass. Perry  v.  Pittsburgh  Union  Pass.  R, 
Co.,  153  Pa.  St.  236,  25  Atl.  Rep.  772. 

620.  For  iiou-conl'ormity  to  rules. 
— A  company  has  a  right  to  make  and  en- 
force reasonable  rules  which  tend  to  pro- 
mote the  safety  and  comfort  of  its  passen- 
gers, and  if  a  passenger  wantonly  i  ?fuscs  to 
conform  to  the  rules,  the  conductor  or  driver 
may  at  once  expel  him,  using  no  more  force 
than  is  necessary.  Ft.  Clark  St.  R.  Co.  v. 
Ebaugh,  49  ///.  App.  582, 

621.  Forbeiugiutoxlcated.— Acono 
ducior  may  eject  a  person  who  is  intoxicated 
and  has  vomited  in  the  car,  provided  no 
more  force  is  used  than  is  necessary.  Con' 
verse  v.  Washington  &»  G.  R.  Co.,  2  Mac 
Arth.  (£>.  C.)  504. 

It  is  the  duty  of  a  conductor  to  remove 
from  a  horse-car  a  person  who  is  intoxicated, 
if  he  misbehaves  himself,  or  gives  reason 
to  believe  that  he  will  misbehave.  Vinton 
v.  Middlesex  R.  Co.,\\  Allen  (Mass.)  304. 

If  a  passenger  is  so  intoxicated  as  to  be 
oflensiv;  to  other  passengers,  the  conductor 
has  a  right  to  remove  hirn ;  but  whether  it 
is  negligence  to  remove  him  while  the  car  is 
in  motion  is  a  question  for  the  jury.  Mur- 
phy  V.  Union  R.  Co.,  ti8  Mass.  328,  9  Am. 
Ry.  Rep.  282.— Applying  Vinton  v.  Middle- 
sex R.  Co.,  1 1  Alien  (Mass.)  304.  Explain- 
ing Lovett  V.  Salem  &  S.  D.  R.  Co.,  9  Allen 
5S7:  Nichols  V.  Middlesex  R.  Co..  106  Mass. 
463.— Followed  in  Hcaley  v.  City  Pass. 
R.  Co.,  28  Ohio  St.  33. 

A  rule  of  a  company  requiring  conductors 
to  remove  intoxicated  persons  from  cars  is 
no  defense  to  an  action  for  removing  from 
a  car  a  passenger  who  was  not  intoxicated, 
but  who  was  afflicted  by  a  disease  that  pro- 
duced involuntary  motions  resembling  in- 
toxication, and  the  exclusion  of  such  rule  is 
not  error,    R^ntr  v.  Glens  Falls,  S.  If.  &* 


Ft.  E.  St.  R.  Co.,  74  hun  202. 26  N.  Y.  Supp, 
(>2S,StN.Y.S.R.yoo. 
622.  For  disorderly   conduct.— If 

the  conduct  of  a  passenger  is  such  that  his 
expulsion  appears  to  the  conductor  to  be  a 
just  and  proper  expedient  for  the  purpose  of 
preventing  a  violation  of  decency  and  good 
order,  the  conductor  will  be  justified  in  ex- 
pelling him,  the  company  being  responsible 
for  an  abuse  of  this  discretion,  or  of  any  op- 
pression in  its  exercise,  and  it  will  be  error 
if  the  court  so  instruct  the  jury  as  to  take 
away  from  them  the  consideration  of  the 
question  whether  the  conduct  of  the  passen- 
ger furnished  a  reasonable  and  probable 
cause  for  apprehending  a  breach  of  good 
order.  Lemont  v.  Washington  &*  G.  R.  Co,, 
I  Am.  &•  Eng.  R.  Cas.  263,  i  Mackey  (D.  C.) 
180.— Distinguishing  Pearson  v.  Duane,4 
Wall.  (U.  S.)  605.  Reviewing  Thurston  v. 
Union  Pac.  R.  Co.,  4  Dill.  (U.  S.)  321; 
Jcncks  V.  Coleman,  3  Sumn.  (U.  S.)  221. 

A  street-car  company  has  the  right  to  re- 
press and  prohibit  all  disorderly  conduct  on 
its  cars,  and  to  expel  therefrom  any  person 
whose  conduct  or  condition  is  such  as  to 
render  acts  of  impropriety,  rudeness,  inde- 
cency, or  disturbance  either  inevitable  or 
probable.  Vinton  v.  Middlesex  R.  Co.,  11 
Allen  (Mass.)  304.— Applied  in  Murphy  v. 
Union  R.  Co.,  118  Mass.  228.  Approved 
IN  New  Orleans,  St.  L.  &  C.  R.  Co.  v.  Burke, 
53  Miss.  200. 

And  the  conductor  is  not  bound  to  wait 
until  some  overt  act  of  violence,  profaneness, 
or  other  misconduct  has  been  committed, 
to  the  inconvenience  or  annoyance  of  other 
passengers,  before  exercising  his  right  to  ex- 
clude or  expel  the  offender.  The  power  to 
prevent  a  disorderly  occurrence  is  quite  as 
essential  as  the  power  to  stop  it  after  it  has 
been  commenced.  Vinton  v.  Middlesex  R, 
Co.,  1 1  Allen  (Mass.)  304. 

If  a  passenger  is  guilty  of  disorderly  con- 
duct without  reasonable  provocation  from 
the  carrier  or  others,  he  forfeits  hib  right  as 
a  passenger,  and  the  carrier,  without  using 
more  force  than  is  reasonably  necessary,  has 
the  right  to  eject  him.  Eads  v.  Metropolitan 
St.  R.  Co.,  43  Mo.  App.  536. 

When  the  conduct  of  the  passenger  is 
equivocal,  so  that  its  character  must  be  de- 
termined by  the  manner,  tone,  gesture,  or  in- 
tention, then  it  should  be  submitted  to  the 
jury.  But  when  unequivocally  bad.  demon- 
strating itself  and  striking  all  respectable 
and  orderly  people  alike,  it  should  be  d^ 


STREET   RAILWAYS,  S23-525. 


535 


dared  disorderly  by  the  court,  e.g.,  if  a 
passenger,  without  reasonable  provocation 
thereto,  should  wilfully  or  in  anger  call  the 
conductor  a  liar  in  the  presence  and  hearing 
of  the  other  passengers.  Eads  v.  Metropol- 
itan St.  R.  Co..  43  Mo.  App.  536. 

Independently  uf  any  regulation  of  his 
company,  the  conductor  of  a  street  car  has  a 
ri^ht  to  put  off  a  passenger,  even  after  his 
fare  is  paid,  if  lie  becomes  disorderly  or  of- 
fensive ;  and  the  exercise  of  the  right  often 
becomes  a  duty  owed  to  other  passengers. 
Flynn  v.  Central  Park,  etc.,  R.  Co.,  \J  J.  &* 
S.{N.  r.)8i. 

623.  For  usliiff  vulgar  or  Indecent 
language. — While  a  conductor  is  justified 
in  expelling  a  passenger  for  the  use  of  vul- 
gar and  indecent  language  to  the  annoyance 
of  other  passengers,  still  the  law  does  not 
justify  unreasonable  and  excessive  force,  or 
permit  the  removal  of  such  passenger  from 
the  car  at  a  place  or  under  circumstances 
dangerous  to  life  or  limb.  Chicago  City  R. 
Co.  V.  Pellet ier,  134  ///.  120,  24  A^.  E.  Rep. 
770;  affirming  33  ///.  App.  455.— DiSTIN- 
GUlSHicu  IN  North  Chicago  St.  R.  Co.  7'. 
Olds,  40  111.  App.  421. 

The  conductor  has  no  right  to  put  a  pas- 
senger off  for  using  vulgar  and  indecent 
language  in  a  tone  loud  enough  to  attract 
the  attention  of  other  passengers,  and  re- 
fusing to  desist,  unless  such  language  is  cal- 
culated to  annoy  and  disturb  them.  Chicago 
City  R.  Co.  V.  Pellet  ier,  1  ^,  ///.  120,  24  A'.  E. 
R,p.  770;  affirming  33  //..  App.  455. 

Railway  companies  are  not  conservators 
of  the  public  or  private  morals,  bnt  they 
may  and  should  adopt  and  enforce  such  rca- 
sonal)lc  rules  as  will  [)rotect  their  passengers 
from  injury,  insult,  disturbance,  or  annoy- 
ance. Their  duty  to  prevent  the  use  of  of- 
fensive language  on  their  cars  is  for  the  pro- 
tection of  their  passengers,  and  arises  out  of 
their  duty  to  tlicni.  Chicago  City  R.  Co.  v. 
Pellet  ier,  134  ///.  120,  24  A'.  E.  Rep.  770; 
affirming  33  ///.  App.  455- 

A  company  attempted  to  justify  an  ex- 
pulsion on  two  grounds:  (1)  plaintiil's  re- 
fusal to  pay  fare,  and  (2)  his  use  of  language 
calrulatcd  to  disturb  other  passengers.  The 
court  instructed  that  even  if  plaintifl  did 
not  pay  his  fare,  or  some  one  pay  it  for  him, 
and  the  conductor  did  not  undertake  to 
remove  him  in  a  peaceable  manner,  using 
no  more  force  than  was  necessary,  but 
pushed  or  threw  him  off  the  car  while  in 
motion,   etc.     Htld,  that  the    instruction 


could  not  have  been  understood  as  exclud- 
ing from  the  jury  testimony  tending  to 
show  misconduct  of  plaintiff  calculated  to 
disturb  the  other  passengers,  especially  when 
the  jury  were  told,  by  other  instructions, 
that  the  conductor  would  be  justified  in 
putting  plaintiff  off  for  using  vulgar  and 
indecent  language  loud  enough  to  disturb 
other  passengers.  Chicago  City  R.  Co.  v. 
Pelletier,  134  ///.  120,  24  A^.  E.  Rep.  770; 
affirming  33  ///.  App.  455. 

524.  but   no   excessive  forco 

must  be  used.  —  In  ejecting  a  passenger 
the  conductor  can  use  no  more  force  than 
is  necessary,  and  if  he  does  the  company 
will  be  liable.  Haman  v.  Omaha  Horse  R. 
Co.,  35  A'ed.  74,  52  A':  W.  Rep.  830.  New 
York,  L.  E.  &>  W.  R.  Co.  v.  Haring,  21  Am. 
&*  Eng.  R.  Cas.  436,  47  A^.  /.  L.  137. 

A  street-car  company  is  liable  where  a 
conductor,  under  a  mistake  of  facts  or  of 
judgment,  ejects  a  passenger  from  a  car. 
when  it  is  not  justified  by  the  passenger's 
misconduct.  The  company  is  also  liable 
where  there  was  justifiable  cause  of  the 
ejection,  but  excessive  force  was  used,  but 
not  wantonly  or  maliciously.  Higgins  v. 
Watervliet  T.  &»  R.  Co.,  46  A^.  Y.  23.— 
Distinguishing  Hibbard  v.  New  York  & 
E.  R.  Co..  15  N.  Y.  467.  Quoting  Mc- 
Manus  V.  Crickett,  1  East  106;  Sandford  v. 
Eighth  Ave.  R.  Co.,  23  N.  Y.  343 ;  Seymour 
V.  Greenwood,  7  H.  A  N.  356.— APPLIED 
IN  Corbctt  V.  Twenty-third  St.  R.  Co.,  42 
Ilun  587,  4  N.  Y.  S.  R.  535.  Followed  in 
Jackson  v.  Second  Ave.  R.  Co.,  47  N.  Y. 
274;  McCormick  v.  Pennsylvania  C.  R.  Co., 
49  N.  Y.  303  ;  Rounds  v.  Delaware,  L.  &  W. 
R.  Co.,  64  N.  Y.  129,  2!  Am.  Rep.  597.  Re- 
viewed IN  Gillett  V.  Missouri  Valley  R. 
Co.,  55  Mo.  315. 

525.  FJability  of  company  for  act 
of  driver  or  conductor.— By  placing  a 
conductor  in  his  position,  the  company 
gives  him  the  implied  authority  to  deter- 
mine who  shall  be  admitted  to  and  who  ex- 
cluded from  the  cars ;  and  the  company  is 
liable  for  a  wrongful  exercise  of  this  author- 
ity, and  the  motive  or  intention  of  the 
conductor  will  not  discharge  the  company 
from  liability.  Passenger  R.  Co.  v.  Yout^, 
31  Ohio  St.  518. 

If  a  driver  of  a  street-car  has  authority  to 
collect  fare,  and  to  put  a  person  off  for  non- 
payment, the  company  will  be  liable,  if 
injury  results  from  excessive  force  and 
violence  in  so  doing,  or  if,  as  driver,  ke  is 


virmmsm 


f^ 


636 


STREET  RAILWAYS,  626. 


guilty  of  carelessness  or  negligence  in  keep- 
ing the  car  in  motion,  by  reason  of  which  a 
person  is  injured.  Heahy  v.  City  Pass.  R. 
Co.,  28  Ohio  St.  23,  14  Am.  Ky.  Rep.  63.— 
Reviewing  Lovett  v.  Salem  &  S.  D.  R. 
Co..  9  Allen  (Mass.)  557 ;  Wilton  v.  Mid- 
dlesex R.  Co.,  107  Mass.  108. 

Where  the  injury  complained  of  results 
from  a  want  of  care  in  a  car  driver  in  running 
the  car,  and  not  from  the  force  or  violence 
used  in  ejecting  a  person  from  the  car,  the 
company  is  liable,  whether  the  driver  had 
authority  to  collect  the  fare  or  not.  Healey 
v.  City  Pass.  R.  Co.,  28  Ohio  St.  23,  14  Atn. 
Ry.  Rep.  63. 

A  company  is  liable  for  the  act  of  a 
driver  in  wrongfully  putting  a  passenger  off 
the  platform,  even  where  it  is  shown  thut 
the  act  is  more  than  negligent,  making  it 
forcible,  malicious,  and  wilful,  it  being  within 
the  usual  employment  of  a  driver  to  re- 
move persons  from  car  platforms.  Meyer 
V.  Second  Ave.  R.  Co.,  8  Bosw.  (N.  Y.)  305. 
— Following  Weed  v.  Panama  R.  Co.,  17 
N.  Y.  362. 

520.  Passengers  using  transfer 
checks.— A  street-car  passenger  was  given 
a  transfer  ticket,  but  was  told  on  the  second 
line  that  it  was  intended  for  a  different 
line,  and  he  was  ejected.  On  the  trial  of 
a  suit  for  being  put  off,  there  was  evidence 
that  plaintifl  was  well  acquainted  with  the 
diflferent  lines,  and  evidence  tending  to 
show  that  he  did  not  get  off  the  car  he  said 
he  did,  which  was  calculated  to  mislead  the 
agent  giving  him  the  ticket.  Held,  that  an 
instruction  that  if  the  jury  believed  plain- 
tiff did  not  get  off  the  line  of  cars  as  re- 
lated by  him,  but  came  from  another  line, 
and  received  the  transfer  ticket  without 
objection,  and  undertook  to  ride  on  a  line 
tl*.at  it  did  not  call  for,  he  could  not  re- 
cover, was  not  erroneous.  Carpenter  v. 
Washington  6-  G.  R.  Co.,  31  Am.  &>  Eng.  R. 
Ca'.  120,  121  U.  S.  474,  7  Sup.  Ct.Rep.  1002. 

A  company  that  operated  several  lines 
was  in  the  habit  of  transferring  passengers 
from  one  to  the  other,  giving  colored 
checks  for  the  purpose,  each  designating 
the  line  on  which  it  was  to  be  used,  and  not 
good  on  any  other  line.  Plaintiff,  who  was 
familiar  with  this  practice,  by  a  mistake  re- 
ceived a  wrong  check  from  a  conductor, 
without  reading  it.  Held,  that  he  must  pay 
his  fare  on  the  second  line  or  be  expelled. 
Bradshaw  V.  South  Boston  R.  Co.,  16  Am.&' 
Eng.  R.  Cas.  386,  135  Afass.  407,  46  Am. 


Rep.  481.  — Distinguished  in  Pouilin  v. 
Canadian  Pac.  R.  Co.,  47  Fed.  Rep.  8s8; 
Philadelphia,  W.  &  B.  R.  Co.  v.  Rice,  36 
Am.  &  Eng.  R.  Cas.  264,  64  Md.  63. 
Quoted  in  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Gants,  34  Am.  &  Eng.  R.  Cas.  290,  38 
Kan.  608. 

By  a  city  ordinance  granting  certain 
franchises  to  defendant,  a  passenger  who 
has  paid  one  fare  on  any  line  operated  by 
the  company  is  entitled  to  a  transfer  check 
or  ticket  entitling  him  to  a  continuous  pas- 
sage over  any  connecting  or  crossing  line. 
Where  such  passenger  applies  for  and  ac- 
cepts a  transfer  ticket  for  one  of  several 
continuous  or  crossing  lines,  plainly  marked 
and  designated,  he  will  be  limited  to  the 
line  so  selected,  but  where  the  route  desig- 
nated is  not  so  limited,  but  is  equally  ap- 
plicable to  several  lines,  he  will  be  entitled  to 
be  transported  over  either.  Pine  v.  St.  Paul 
City  R.  Co.,  52  Am.  &*  Eng.  R.  Cas.  584,  50 
Minn.  144,  52  N.  W.  Rep.  392, 16Z.  R.  A.  347. 

Plaintiff  paid  his  fare  and  received  a 
transfer  check  which  entitled  him  to  con- 
tinue his  journey  on  the  "next"  connecting 
car  on  another  line  of  the  same  company. 
He  took  the  next  car  on  the  connecting 
line,  and  the  conductor  took  up  his  transfer 
check.  Without  notice  to  plaintiff,  this  car 
was  taken  off  after  going  a  short  distance. 
The  conductor  having  disappeared,  plaintiff 
was  informed  by  the  driver  of  the  car  that 
he  should  take  the  next  passing  car.  He 
did  so,  but  was  put  off  by  the  conductor 
because  he  had  no  transfer  check,  and  re- 
fused to  pay  fare  again.  Held,  that  plaintiff 
showed, /rma  facie,  a  right  to  recover  for 
the  conduct  of  defendant's  agents  leading 
to  and  including  the  expukion.  Appleby  v. 
St.  Paul  City  R.  Co.,  54  Ms-tn.  169,  55  A';  W. 
Rep.  1 117. 

The  defense  for  ejecting  a  passenger  was 
that  he  presented  to  the  conductor  a  trans- 
fer check  which  was  insufficient,  since  it 
was  torn  in  two,  and  offered  to  prove  a  rule 
of  the  company  requiring  the  conductor  to 
collect  fares  in  money  or  by  proper  ticket  or 
transfer  check,  and  also  to  prove  the  cus- 
tom of  passengers,  on  receiving  their  checks 
at  the  place  of  transfer  and  finding  that  they 
did  not  want  them,  to  tear  them  in  two  and 
throw  them  down.  Held,  competent  evi- 
dence, and  its  rejection  error.  Woods  v. 
Metropolitan  St.  R.  Co.,  48  Mo.  App.  125. 

The  conductor  must  have  proper  evidence 
of  the  right  of  the  passenger  to  carriage, 


STREET   RAILWAYS,  527-529. 


537 


and  this  right  will  avail  the  passenger  noth- 
ing unless  he  produce  this  evidence.  Woods 
V.  Metropolitan  St.  R.  Co.,  48  Mo.  App.  125. 

A  conductor  cannot  stop  to  investigate 
the  right  which  a  passenger  might  have 
aside  from  the  evidence  of  .such  right  pre- 
sented to  him,  and  his  duty,  when  a  passen- 
ger is  without  the  evidence  of  having  paid 
his  fare,  is  plain  and  imperative— to  collect 
the  same,  or  on  refusal  to  pay  to  put  the 
passenger  off,  using  no  more  force  than  is 
necessary.  Woods  v.  Metropolitan  St.  R. 
Co.,  tfi  Mo.  App.  125. 

On  leaving  a  car  plaintiff  received  a  check 
which  stated  that  it  was  good  "  for  a  con- 
tinuous ride  "  from  the  street  wliere  it  was 
issued  to  the  end  of  the  company's  line. 
Plaint!  i!  did  not  take  another  car  at  that 
place ;  but  during  the  afternoon  of  the  same 
day  got  on  a  car  below  where  the  check  had 
been  issued,  paid  his  fare,  and  after  passing 
the  place  where  the  check  had  been  issued 
tendered  it  for  further  fare,  but  it  was  re- 
jected. Held,  that  the  company  was  liable. 
Plaintiff  had  a  right  to  ride  on  any  car,  and 
the  word  "continuous"  did  not  apply  to 
the  portion  of  the  route  traveled  before  the 
check  was  issued.  McMakon  v.  Third  Ave. 
R.  Co.,  IS /.A'  S.  (N.  V.)  282 

527. coupon  tickets. — A  rule  of 

a  company,  under  a  contract  with  the  city 
requiring  it  to  carry  passengers  over  two 
sections  of  its  line  for  one  fare,  and  the  pas- 
senger to  show  an  undetached  coupon  ticket 
as  a  voucher  of  his  right  to  continue  be- 
yond a  given  point,  is  reasonable  in  lawi 
and  the  company  is  entitled  to  eject  one 
refusing  to  comply.  De  Lucas  v.  New  Or- 
leans &»  C.  R.  Co.,  38  La.  Ann.  930. 

A  passenger,  on  paying  the  fare,  was  en- 
titled to  transportation  over  the  lines  of 
two  street  railways,  for  which  a  ticket  of  a 
peculiar  color  and  print  was  used,  consist- 
ing of  two  parts,  separated  by  a  perforated 
line.  The  lower  part  contained  the  evi- 
dence of  the  passenger's  right  to  ride  over 
the  road  of  the  company  to  which  the  fare 
was  paid,  and  it  was  the  duty  of  its  con- 
ductor to  deliver  to  him  the  upper  part, 
which  contained  the  evidence  of  his  right  to 
ride  over  the  other  road.  By  mistake,  the 
conductor  so  separated  the  parts  as  to  leave 
a  portion  of  the  upper  part  upon  the  lower 
part  of  the  ticket,  and  delivered  the  re- 
mainder of  the  upper  part  to  the  passenger. 
The  conductor  on  the  other  road  refused 
to  Kcept  this  fra({ment,  and,  on  refusal  of 


the  passenger  to  pay  fare,  ejected  him.  Neld, 
as  a  matter  of  law,  that  the  conductor  was 
bound  to  know  that  the  fragment  was  a 
portion  of  a  genuine  ticket  used  upon  his 
line,  which,  if  whole,  would  have  entitled 
the  passenger  to  a  ride  over  the  line. 
Rouser  v.  North  Park  St.  R.  Co.,  97  MicA. 
56s,  56  A^.  W.  Rep.  937. 

Where  a  company  issues  a  ticket  with 
coupons  attached  for  different  rides,  a  con- 
dition that  the  coupons  will  not  be  good  if 
detached  is  reasonable,  and  a  coupon  de- 
tached by  the  passenger  not  in  the  presence 
of  the  conductor  is  not  good  for  a  passage. 
Walker  v.  Dry  Dock,  E.  B.  6-  B.  R.  Co., 
33  Hffw.  Pr.  {N.  V.)  327. 

528.   commutation  checkn.— 

Mass.  Act  of  1871,  ch.  381,  §  36,  provides  for 
commutation  checks  for  passengers  on 
street-cars  in  the  city  of  Boston  which  shall 
entitle  them  "to  a  passage  on  the  same 
day  only  in  any  car  run  in  the  city  between 
any  two  points  therein,"  without  paying 
more  than  a  sum  named  "  for  both  of  the 
passages  aforesaid."  //eld,  that  this  does 
not  entitle  a  passenger  who  has  changed 
cars  and  surrendered  the  check  in  the  sec- 
ond car  to  a  passage  on  a  third  car  going 
further  on  the  same  line,  though  he  was 
told  by  the  conductor  that  he  might  ride  on 
the  third  car  without  payment  of  additional 
fare.  Wakefield  \.  South  Boston  R.  Co.,  117 
Mass.  544,  6  Am.  Ry.  Rep.  238. 

Mass.  Pub.St.ch.  113,  §47,  relating  to  com- 
mutation checks  on  street  railways,  provides 
that  such  checks  shall  not  entitle  the  holder 
"to  a  passage  over  the  same  route  on 
which  the  check  was  issued,  or  a  route  par- 
allel thereto,  and  between  and  including 
two  common  points."  //eld,  that  it  is  not 
necessary  that  two  street-car  routes  should 
be  parallel  for  the  whole  length  of  each,  or 
of  either,  in  order  to  fall  within  the  mean- 
ing of  the  statute.  If  the  route  on  which 
the  passenger  proposes  to  travel  is  substan- 
tially parallel  to  that  on  which  he  receives 
his  clieck,  and  if  it  is  between  and  includes 
two  common  points,  it  is  enough,  and  his 
trip  back  in  the  direction  from  which  he 
came  is,  substantially,  a  return  trip.  Cronin 
V.  //ighlandSt.  R.  Co.,  28  Am.  &*  Eng.  R. 
Cas.  122,  144  Mass.  249,  10  A^.  E.  Rep.  833. 

529.  Llinittngr  check  to  fifteen 
minutes  after  delivery.— There  is  noth- 
ing unreasonable  in  a  requirement  that  a 
transfer  ticket  from  one  route  of  a  street 
railway  to  another  shall  not  be  honored  un- 


w 


i 

if 


il 


538 


STREET  RAILWAYS,  530. 


less  used  within  fifteen  minutes  after  its  de- 
livery to  the  passenger,  in  the  absence  of 
any  obligation  on  the  part  of  the  company, 
by  charter,  ordinance,  or  contract,  *o  make 
such  transfer  and  carry  the  passenger  over 
boih  routes  for  a  single  fare.  Heffron  v. 
Detroit  City  R.  Co.,  52  Am.  6-  Eng,  A\ 
Cat.  5S8.  92  Alic/i.  406,  16  L.  R.  A.  345,  $2 
A'.  W.  Rep.  802. 

It  is  the  duty  of  a  passenger  receiving 
such  a  transfer  ticket  to  read  it,  and  his 
failure  to  do  so  cannot  give  him  any  rights 
against  the  company  which  he  would  not 
have  had  after  reading  it  and  thus  being  ad- 
vised by  the  limitation  as  to  the  time  within 
which  it  could  be  used.  Heffron  v.  Detroit 
City  R.  Co.,  52  Am.  6-  Eng.  R.  Cas.  588,  93 
Afic/t.  406, 16  L.R.  A.  345,  52  N.  W.  Rep.  802. 

If  the  passenger  takes  the  first  car  which 
passes  the  point  of  transfer  after  alighting 
from  the  one  on  which  he  originally  took 
passage,  even  though  the  time  within  which 
the  ticket  is  receivable  by  the  conductor 
by  the  limitation  on  its  face  has  expired,  the 
passenger  may  have  an  action  against  the 
company  for  being  ejected  from  the  latter 
car  on  refusing  to  pay  a  second  fare;  but  no 
such  state  of  facts  is  averred  in  the  decla- 
ration in  this  case.  Heffron  v.  Detroit  City 
R.  Co.,  52  Am.  &*  Eng.  R.  Cas.  588, 92  Mich. 
406,  16  L.  R.  A.  345,  52  N.  IV.  Rep.  802.— 
Distinguishing  HufTord  v.  Grand  Rap- 
ids &  I.  R.  Co.,  64  Mich.  631.  Following 
Frederick  v.  Marquette,  H.  &  O,  R.  Co.,  37 
Mich.  342. 

630.  Sick  passongers.  —  A  sick  pas- 
senger must  conform  to  the  reasonable  reg- 
ulations of  the  company.  He  has  no  pre- 
rogative to  misbehave,  and  to  subject  other 
passengers  to  annoyance  by  his  offensive 
conduct,  and  it  will  be  no  protection  against 
his  expulsion  that  his  misconduct  is  not 
wilful  or  voluntary.  The  absence  of  an  evil 
intention  is  a  good  defense  to  an  indict- 
ment, but  it  cannot  exonerate  a  person  who 
is  honestly  supposed  to  be  drunk,  and  who 
repeatedly  disobeys  the  request  of  the  con- 
ductor to  behave  himself.  Lemont  v. 
Washington  &*  G.  R.  Co.,  f  Am.  &*  Eng.  R. 
Cas.  263, 1  Mackey  {D.  C.)  180. 

An  instruction  which  implies  that  vomit- 
ing from  intoxication  in  a  street-car  is  the 
only  form  of  that  evil  which  will  authorize 
the  conductor  to  expel  the  offending  pas- 
senger  is  erroneous,  as  it  takes  from  the 
minds  of  the  jury  all  other  forms  of  the  evil 
which,  in  the  proper  management  of  the 


car,  might  justify  the  conductor  in  ejecting 
the  passenger.  Lemont  v.  Washington  &*  G. 
R.  Co.,  I  Am.  &»  Eng.  R.  Cas.  263,  i  Mackey 
{D.  C.)  180. 

The  rule  to  be  applied  to  steam-cars  in  re- 
gard to  accommodations  to  sick  or  decrepit 
persons  is  not  a  proper  rule  to  be  applied  to 
horse  railways.  What  might  be  permitted 
on  the  former,  where  the  touri.eys  are  long 
and  continuous,  could  not  be  practised  on 
the  latter  without  great  inconvenience  to 
the  company  and  the  passengers.  If  the 
passenger  is  known  by  the  conductor  to  be 
sick  (and  good  faith  requires  that  he  be  in- 
formed by  the  passenger  of  that  fact,  in  or- 
der that  proper  and  reasonable  allowance 
may  be  made  for  what  may  seem  unusual  or 
obnoxious  in  his  conduct),  and  he  is  shown 
good  treatment,  the  company  will  not  be 
required  to  provide,  without  a  special  con- 
tract, any  extra  means  for  his  accommoda- 
tion. Lemont  v.  Washington  &*  G.  R.  Co., 
I  Am.  6-  Eng,  R.  Cas,  263,  i  Mackey  (D. 
C.)  180. 

Although  a  common  carrier  of  passengers 
owes  obligations  to  its  well  passengers  as 
well  as  to  those  who  are  sick,  and  is  bound 
to  protect  the  rights  of  both,  and  although 
when  the  condition  of  one  passenger,  from 
sickness  or  otherwise,  is  such  as  to  be  in- 
consistent with  the  safety,  health,  or  even 
reasonable  comfort  of  his  fellow-passengers, 
regard  for  the  rights  of  the  latter  will  au- 
thorize the  carrier  to  terminate  the  carriage 
by  excluding  him,  yet  this  right  cannot  be 
exercised  arbitrarily  and  inhumanely,  or 
without  due  care  and  provision  for  the 
safety  and  well-being  of  the  ejected  pas- 
senger. Conolly  V.  Crescent  City  R.  Co.,  41 
La.  Ann.  57,  3  L.  R.  A.  133,  5  So.  Rep.  259, 
6  So.  Rep.  526.— Quoted  in  Weightman  v. 
Louisville,  N.  O.  &  T.  R.  Co.,  70  Miss.  563. 

A  passenger  stricken  with  apoplexy  while 
riding  on  a  street-car,  although  attended 
with  severe  vomiting,  to  the  inconvenience 
and  great  discomfort  of  other  passengers, 
cannot  be  removed,  while  in  a  speechless 
and  helpless  condition,  and  laid  in  the  open 
street  on  a  bleak,  drizzling  December  day, 
and  there  abandoned  with  no  effort  to  pro- 
cure him  attention,  without  a  gross  viola- 
tion by  the  carrier  of  its  duty  as  such,  and 
liability  for  resulting  damage.  Conolly  v. 
Crescent  City  R.  Co.,  41  La.  Ann.  57,  3  L.  R. 
A.  133,  5  So.  Rep.  259,  6  So.  Rifi,  526. 

The  mistake  of  the  driver  in  supposing 
that  a  passenger  was  drunk,  when  the  latter 


STREET   RAILWAYS,  581,  532.— STREETS. 


680 


had  ridden  a  considerable  distance  without 
misbehavior,  and  had  been  guilty  of  none 
except  vomiting  occasioned  by  illness,  can- 
not excuse  the  company  for  ejecting  him 
and  leaving  liim  uncared  for  on  the  street 
in  inclement  weather.  ConoUy  v.  Crescent 
City  R.  Co.  41  La.  Ann,  57,  3  L.  R.  A.  133, 
5  So.  Rep.  259,  6  So.  Rep.  526. 

531.  Allownnco  of  exemplary 
damages.— Plaintiff  and  his  wife  entered 
a  street-car  and  presented  to  the  conductor 
tickets  entitling  them  to  ride  to  their  desti- 
nation, informing  the  conductor  where  they 
wished  to  go.  Between  the  beginning  and 
end  of  the  journey  it  was  necessary  to  be 
transferred  to  another  car,  and  they  were 
transferred  personally  by  the  conductor  of 
the  first  car,  but  were  given  no  transfer 
tickets,  nor  did  plaintiff  know  that  they 
were  necessary.  The  conductor  of  the  sec- 
ond car  called  for  a  transfer  ticket  or  pay- 
ment of  fare,  and  in  default  thereof  ejected 
plaintiff  and  his  wife,  requiring  them  to  get 
off  in  the  mud  a  9hort  distance  from  the 
street  crossing,  id  in  the  presence  of  a 
number  of  people.  Held,  that  the  case  was 
one  authorizing  exemplary  damages.  City 
&-  S.  R.  Co.  V.  Brauss,  18  Am.  &»  Eng.  R. 
Cas.  324,  70  Ga.  368. 

If  the  company's  servant,  in  expelling 
plaintiff,  inflicted  injuries  in  a  spirit  of 
oppressive  malice,  or  acted  in  such  a  manner 
ns  to  indicate  a  heedless  disregard  of  con- 
sequences, plaintiff  may  recover  exemplary 
damages.  Citizens'  St.  R.  Co.  v.  Willoeby. 
58  Am.  &*  Eng.  R.  Cas.  485,  134  Ind.  563,  33 
A'.  E.  Rep.  627 

If  a  passenger  is  forcibly  ejected  from  a 
car  for  non-payment  of  fare  illegally  de- 
manded, the  rule  or  measure  of  damages  is 
a  question  of  law ;  and  if  the  expulsion  was 
deliberate  and  forcible,  the  jury  may  give 
such  exemplary  damages  as  they  may  con- 
sider proper  punishment  for  the  conduct 
of  the  company's  agent.  Baltimore  6*  Y. 
Turnpike  Road  v.  Boone,  45  Md.  344.— Fol- 
lowed IN  Philadelphia,  W.  &  B.  R.  Co.  v. 
Larkin,  47  Md.  155. 

A  carrier  of  passengers  using  due  care  in 
selecting  its  servants  is  liable  for  compen- 
satory damages  only,  and  not  for  exemplary 
damages,  where  its  conductor  wrongfully 
ejects  a  passenger  from  its  cars,  unless  such 
wrongful  act  is  authorized  or  ratified  by  the 
carrier.  Rouse  v.  Metropolitan  St.  R.  Co., 
41  Mo.  App,  298.— Reviewing  Goddard  v. 
Grand  Trunk  R.  Co.,  57  Me.  202. 


A  street-car  passenger  cannot  recover 
exemplary  damages  for  being  unlawfully 
ejected  from  a  car,  where  no  intentional 
offense  was  committed,  as  where  a  passen- 
ger is  transferred  from  one  car  to  another, 
and  is  ejected  by  the  conductor,  who  mis- 
takenly but  honestly  supposes  that  no  fare 
has  been  paid.  Hamilton  v.  Third  Ave.  R. 
Co.,  53  N.  V.  25,  5  Am.  Ry.  Rep.  362 ;  revers- 
ing 3/.&*S.  1 18,  44  How.  Pr.  294,  13  Abb. 
Fr.  N.  S.  318.— Applied  in  Homiston  v. 
Long  Island  R.  Co..  S2  N.  Y.  S.  R.  i.  Dis- 
tinguished IN  Yorton  v.  Milwauke';,  L.  S. 
&  W.  R.  Co.,  6  Am.  &  Eng.  R.  Cas.  322,  54 
Wis.  234, 41  Am.  Rep.  23.  Followed  in 
Townsend  v.  New  York  C.  &  H.  R.  R.  Co., 
56  N.  Y.  295.  Quoted  in  Quigley  v.  Cen- 
tral Pac.  R.  Co.,  II  Nev.  350;  Townsend  v. 
Hew  York  C.  &  H.  R.  R.  Co.,  4  Hun  (N.  Y.) 
217.  Reviewed  in  Lake  Erie  &  W.  R.  Co. 
V.  Fix,  1 1  Am.  &  Eng.  R.  Cas.  109,  88  Ind. 
381,  45  Am.  Rep.  464:  Paine  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  45  Iowa  569;  Mahoney  V. 
Detroit  St.  R.  Co.,  93  Mich.  612:  Parker  v. 
Erie  R.  Co.,  5  Hun  57;  Parker  v.  Long 
Island  R.  Co.,  13  Hun  319;  Harding  v. 
New  York,  L.  E.  &  W.  R.  Co.,  36  Hun  72  ; 
Jerome  v.  Smith,  48  Vt.  230. 

532.  of  piiuitive  damages.— 

To  render  a  railroad  liable  for  punitive  dam- 
ages for  the  wrongful  ejectment  of  a  passen- 
ger by  the  conductor  of  a  street-car,  it  is 
incumbent  upon  the  plaintiff  to  show  that 
the  act  complained  of  was  done  with  the 
authority,  either  express  or  implied,  of  de- 
fendant, or  was  subsequently  adopted  by  the 
company.  Turner  v.  North  Beach  &*  M. 
R.  Co.,  34  Cal.  594.— Reviewed  in  Palmer 
V.  Charlotte,  C.  &  A.  R.  Co.,  3  So.  Car.  580. 


'!'l| 


STREETS. 

Admissibility  of  plati  of,  in  evidence,  see 

Drath  by  Wrongful  Act,  246. 
Care  required  from  companies  in,  see  Nrgli- 

GRNCR,   13. 

Compelling  restoration  of,  see  Mandamus, 

13. 
Compensation  to  city  for  nie  of,  see  Elxvatid 

Railways,  45. 
Frightening    teams    In,     see    Frightbnbd 

Trams,  2. 
Improving  in  lien  of  taxation,  see  Strut 

Railways,  281. 
Injuries  to  persons  in,  see  Elrvatrd  Rail- 

ways,  210-220. 
by  trolley   cars,   see   Elxctric 

Railways,  32-38* 


540 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN). 


t\. 


Injuries  to  traveleri  in,  hj  independent  con- 
tractor,   liability  for,   tee   Indepkndbnt 

CONTRACTORS,  26. 

Liability  of  itreet  car  company  to  atseee- 
ment  for  widening,  lee  Strkbt  Railways, 
298,  299. 

Location  of  itation  in,  see  Stations  and  Dr- 

POTS,  12. 

Measure  of  damag;es  for  failure  to  grade, 
pave,  or  gravel,  see  Damages,  60. 

Obstruction  in,  «^en  deemed  nuisance,  see 
Nuisance,  9. 

—  of,  by  hacks,  see  Hacks  and  Hack  Lines,  S. 

—  on,  at  night,  without  light,  see  Crossings, 

Injuries  to  Persons,  etc.,  at,  35. 

Ordinances  changing  grade  of,  see  Municipal 
Corporations,  17. 

Power  of  commissioners  to  regulate  cross- 
ings in,  see  Railway  Commissioners,  22. 

Priority  of  route  between  two  roads  using 
same,  see  Location  op  Route,  29. 

Raising  track  above,  see  Crossings,  Injuries 
TO  Persons,  etc.,  at,  34. 

Right  to  place  poles  and  wires  in,  see  Elec- 
tric Railways,  9-10. 

Street  railways  in,  see  Street  Railways. 

Suits  by  abutters  for  damages  from  occupa- 
tion of,  when  barred  by  lapse  of  time,  see 
Limitations  op  Actions,  RO, 

When  limitation  begins  to  run  in  actions  for 
construction  of  railways  in,  see  Limita- 
tions of  Actions,  24. 


i 

m 


STREETS    AHS    HIOHWATS  (RAIL- 
WATS  IN). 

Action  for  damages  for  obstruction  of,  see 
Eminent  Domain,  996. 

Contributory  negligence  in  allowing  children 
to  go  unattended  in,  see  Children,  Inju- 
ries TO,  143. 

Description  of  lands  bounded  on,  see  Deeds, 
19. 

Duty  to  build  cattle-guards  at  crossings  o( 
see  Cattle-guards,  11,  12. 

construct  bridges  at  crossings  of,  see 

Bridges,  etc.,  17,  18. 

—  —  fence  at  crossing,  see  Animals,  Inju- 
ries TO,  108. 

track  through,  see  Fencks,  56. 

Ejectment  against  company  building  road  in, 
see  Ejectment,  9. 

'—  for  road  unlawfully  constructed  on,  see 
Eminent  Domain,  1023. 

Existence  of,  when  provable  by  parol,  see 
Evidence,  150. 

Injuries  to  children  at  crossings  of,  see  Chil- 

DRKN,  iNJURIKii  TO,  20,  21. 

in,  by  street-car  company,  sec  Chil- 
dren, Injuries  to,  56-66. 


Injuries  to  persons  in,  by  cable  cars,  see 
Cable  Railways,  14-19. 

or  teams  at  crossings  in,  see  Cross- 
ings, Injuries  to  Persons,  etc.,  at. 

Occupation  of,  under  charter  provisions,  see 
Charters,  65. 

Prosecution  for  failure  to  repair,  see  Criminal 
Law.  21. 

obstruction  of,  see  Criminal  Law,  32, 

36. 

Right  to  open  and  lay  cable,  see  Cable  Rail- 
ways, 3. 

use  for  electric  railways,  see  Electric 

Railways,  1-18. 

What  constitutes  a  taking  of,  for  railway 
purposes,  see  Eminent  Domain,  160, 
161. 

I.  UTABUSHMXHT  OF  RBIXTS  AKD 

HIOHWATS 541 

I.  DetiicatioH 541 

3.   Taking  Land  for  Struts 

and  Lay it^  Out  Roads.  $47 
3.    Vacating  and  Discontin- 
uing.   Abandonment. .   S54 
n.  BIGHT  or  REAM  BAILBOASB  TO 

OOOVPT 556 

1.  In  General 556 

2.  Under  L^islatrve  Grants.  557 

3.  Under  Municipal  Grants.  565 

a.  Necessity  of  Mu- 

nicipal    Con- 
sent     565 

b.  Power    to   Grant 

Right  of  Way.  $68 
«'.  Validity  and  Effect 
of   Ordinances 
and    Resolu- 
tions  57a 

d.  What    Rights 

Pass.      Condi- 
tions    574 

/.  Exclusive  Privi- 
leges   578 

/.  Withdrawal  .  o  ( 
Consent.  Rev- 
ocation    580 

Under  Condemnation  Pro- 
ceedings 581 

a.  Necessity  of  and 
Right  to  Insti- 
tute..       581 

i.  Statutory  Provi- 
sions     585 

e.  What  is  a  Taking 

or  Injuring. 

Rights    Ac- 
quired by  Com 

pany 586 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  1,2. 


541 


d.  Procedure; 

Pleading ;   De- 

fenus 588 

m.  BIOHTI  OF  ABVTTIirO  OWIHEBI...   S90 

I.  In  General 590 

3.  Ownership  of  Fee  in  Street, 

New  Servitude 59$ 

3.  Location  of  Track.   Turn- 

outs and  Side  Tracks..  603 

4.  Change   of  Grade.     Cul- 

verts    607 

5.  Unauthorised     Use    of 

Streets 615 

6.  Restoration  of  Highway..  618 

7.  Substitution  of  New  Road.  625 

!▼.  bihxdhs  or  abottino  owhsbs.  628 

1.  In  General.      Election  of 

Remedies 628 

2.  Action  at  Law 630 

3.  Injunction 637 

4.  Procedure 643 

a.  Ill   Actions  at 

Law 643 

b.  In  Injunction 

Suits 647 

5.  Damages 649 

a.  Necessity  of  Com- 
pensation, and 
Who  Entitled. .  649 

i.  Assessment.  Evi- 
d  e  n  c  e  on 
Question  of 
Damages 654 

e.  Elements  and 

Measure    of 
Damages  . 

Benefits 658 

d.  Consequential, 

Prospective, 

and     Nominal 

Damages.   ....  667 

y.  RATE  AHD  MUXIOIPAL   BEOULA- 

TIOM 669 

I .  In  General 669 

:i.  Ordinances,  Generally .    . .  672 

3.  Rate  of  Speed 676 

4.  Signals.      Signboards. 

Lights.     Lookouts. 
Flagmen  681 

5.  Repairs.    Paving.    Local 

Assessments 684 

▼L  UABILITT  FOB  nrjVBIBI  CAVBBD 

BT  HBOIIOBNCB 693 

1.  Of  the  Town  or  City....  693 

2.  Of  the  Railroad  Company.  695 

a.  In  General 695 

b.  Procedure 699 


3.  Recovery  over  by   City  or 

Town 704 

▼n.  OBSTBVOTIOITI     AMD     BXCBOAGH. 

MXXTI 706 

1.  Liability  for 706 

2.  Remedies.    Procedure...-   713 

I.  XRABinBlIXirT  OF  BTBEXTS  ABD 

HI0HWAT8. 

I.  Dedication.* 

1.  The  power  to  dedicate.— A  com- 
pany which  has  received  a  land  grant  from 
the  genural  government  has  the  power  to 
lay  off  and  dedicate  streets  intersecting  its 
right  of  way.  Crossings  may  be  made  with- 
out crippling  the  railroad  or  impairing  its 
usefulness.  Northern  Pac.  R.Co.  v.  Spokane, 
id  Fed.  Rep.  ^\%. 

A  railroad  corporation  may  dedicate  to 
public  use  a  highway  across  lands  owned  by 
it  and  used  for  its  railroiid  tracks.  Stale 
{Central  R.  Co.,  Pros.)  v.  Bayonne,  43  Am.  &* 
Etig.  R.  Cas.  176,  52  A'.  J.  L.  503,  20  Atl. 
Rep.  69. 

Conveyances  by  a  railroad  corporation  of 
lands  bounding  on  a  street  laid  out  across 
its  track  will  effect  a  dedication  of  the  street 
to  public  use,  and  the  fact  that  such  convey- 
ances were  made  while  the  railroad  was  in 
the  hands  of  a  receiver,  tlie.corporatior  join- 
ing in  the  grant  under  a  relaxation  of  the  in- 
junction in  the  receivership  proceedings,  will 
not  prevent  a  dedication  being  inferred. 
State  {Central  R.  Co.,  Pros.)  v.  Bayonne,  43 
Am.  (S-  Eng.  R.  Cas.  176,  52  N.J.  I..  503,  20 
Atl.  Rep.  69.— Reviewing  State  (New  York 
&  L.  B.  R.  Co.,  Pros  )  v.  Drummond,45  N.J. 
L.  511.    Meredith  v.  .Sayre,  32  N.  J.  Eq.  557. 

Under  N.  J.  laws  relating  to  Jersey  City, 
the  board  of  street  and  water  commissioners 
has  power  to  dedicate,  by  resolution,  lands 
belonging  to  the  city  to  street  purposes,  but 
such  board  has  no  power  to  order  the  re- 
moval of  railroad  abutments  which  may  be 
in  the  line  of  said  street.  State  {Mayor,  etc., 
of  Jersey  City,  Pros.)  v.  National  Docks  R. 
Co..  (N.  J.)  26  Atl.  Rep.  145. 

2.  Validity— Coniiiion-law  dedica- 
tioiit— The  use  of  a  street  for  a  railroad  is 
a  public  use,  and  is  not  necessarily  destruc- 
tive of  the  character  of  the  public  way ;  and 

•  Dedication  of  land  for  highway,  see  note,  36 
Am.  &  Eng.  R.  Cas.  5. 

Railroad  dedicating  street  across  its  right  of 
way.  Power  to  dedicate,  see  $6  Am.  &  Eng.  R. 
Cas.  617,  abstr. 


[.J 
•A 


'TW 


542 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  3. 


a  condition  annexed  to  a  dedication  that  a 
railroad  company  should  have  the  right  to 
lay  a  track  or  tracks  in  the  street  dedicated 
is  not  void.  NobltsvilU  v.  Lakt  Erit  &*  W. 
R.  Co.,  lyo Ind.  i,  29  M  E.  Rtp.  484. 

A  common-law  dedication  of  land  cannot 
be  made  to  a  railroad  company  for  public 
use  for  railroad  purposes.  Watson  v.  Chi- 
cago, M.  &*  St.  P.  h'.  Co.,  46  Am.  &*  Eng. 
K.  Cas.  543, 46  Minn.  32 1 ,  48  A^.  W.  Rep.  1 1 29. 
—  Followed  in  Minneapolis  Mill  Co.  v. 
Minneapolis  &  St.  L.  R.  Co.,  46  Minn.  330.— 
Minneapolis  Mill  Co.  v.  Minneapolis  &*  St. 
L.  R.  Co.,  46  Minn.  330,  48  N.  IV.  Rep.  11 32. 

A  dedication  of  land  for  public  use  as  a 
highway  may  be  made  subject  to  a  right  to 
devote  a  part  thereof  to  use  for  railroad  pur- 
poses, and  when  such  portion  has  been  thus 
devoted,  the  use  as  a  way  will  be  suspended, 
and  remain  suspended  so  long  as  that  part 
is  used  for  railroad  purposes.  Ayers  v.  J'enn- 
sylvania  R.  Co.,  46  Am.  &*  Eng.  R.  Cas.  549, 
52  N.J.  L.  405,  20  Atl.  Rep.  54. 

Conveyance  of  land  abutting  on  a  high- 
way dedicated  to  the  public  use  subject  to 
a  right  to  devote  a  part  thereof  to  use  for 
railroad  purposes,  prior  to  the  designation 
of  a  part  for  railroad  purposes,  will  pass  the 
grantor's  title  to  the  centre  of  the  street 
subject  to  the  public  easement  and  the  re- 
served right  to  devote  to  use  for  railroad 
purposes.  Ayers  v.  Pennsylvania  R.  Co.,  46 
Am.  &•  Eng.  R.  Cas.  549,  53  N./.  L.  405,  20 
Atl.  Rep.  54. 

The  fact  that  the  company,  which  accepted 
from  the  owner  a  grant  of  a  part  of  such 
land  and  devoted  it  to  railroad  use,  after 
acts  from  which  such  a  dedication  of  the 
whole  would  be  inferred,  had  filed  a  survey 
of  its  route  over  the  same  land  prior  to  the 
dedication,  and  that  its  charter  prescribed 
that  it  should  become  seized  in  fee  of  lands 
taken  by  condemnation,  did  not  deprive  the 
owner  of  the  power,  or  indicate  his  intent 
not  to  dedicate  thus,  for  the  company  could 
take  less  than  a  fee  by  purchase,  and  the 
perpetual  and  paramount  right  to  use  for 
railroad  purposes  thus  acquired  is  nC.  in- 
consistent with  such  dedication.  Ayers  v. 
Pennsylvania  R.  Co.,  46  Am.  &*  Eng.  R. 
Cas.  549,  52  N./.  L.  405,  20  Atl.  Rep.  54. 

3.  What  does  not  ainoiiut  to  a  ded- 
ication. —  It  is  well  settled  that  a  railroad 
company  may  dedicate  streets  which  it  owns 
in  fee,  or  over  which  it  owns  a  right  of  way, 
in  conjunction  with  the  owner  of  the  fee,  to 
the  public  as  a  highway  ;  but  the  intention 


to  do  so  should  be  manifest.  Williams  v. 
New  York  &-  A'.  H.  R.  Co.,  39  Conn.  509,  4 
Am.  Ry.  Rep.  264. 

To  constitute  a  dedication  of  land  for  a 
public  highway  there  must  be  an  intent  to 
dedicate  and  an  acceptance  by  the  public. 
A  company  purchased  a  strip  of  land  ad- 
joining its  station,  connected  at  either  end 
with  a  public  street,  and  which  was  used 
by  the  public  in  passing  from  one  street  to 
the  other,  or  in  passing  to  and  from  the 
station.  Complainant  purchased  land  ad- 
joining the  strip,  which  he  improved  for 
business  purposes,  and  in  conjunction  with 
the  company  laid  a  sidewalk  in  front.  After 
several  years  the  company  undertook  to  re- 
move the  sidewalk  to  make  more  room  for 
its  station,  when  complainant  applied  for  an 
injunction.  Held:  (i)  that  the  company  was 
not  estopped  from  denying  that  the  land 
was  dedicated  for  a  highway;  (2)  that  if  it 
had  actually  become  a  highway  by  dedica- 
tion, the  petitioner  would  have  an  adequate 
remedy  at  law ;  (3)  that  there  was  not  suffi- 
cient evidence  of  dedication  nor  of  accept- 
ance. Williams  v.  New  York  &»  N.  H.  R. 
Co.,  39  Conn.  509,  4  Am.  Ry.  Rep.  264. 

Where  a  company  owns  a  right  of  way 
alon(  the  border  of  a  farm,  the  owners  of  the 
farm  cannot  dedicate  the  strip  used  for  a 
right  of  way  for  highway  purposes,  so  as  to 
a^ect  the  rights  of  the  company.  Detroit 
v.  Detroit  &*  M.  R.  Co..  23  MicA.  173. 

On  a  town  plat  was  left,  undivided  into 
lots,  a  strip  of  land,  on  which  were  the 
words :  "  Reserved  for  right  of  way.  Line 
of  S.  M.  R.  R."  //eld,  that  this  was  not, 
under  Minn.  Gen.  St.  1878,  ch.  29,  §  5,  a 
donation  of  the  land  to  the  company.  Wat' 
son  V.  Chicago,  M.  &>  St.  P.R.  Co.,  46  Am. 
&*  Eng.  R.  Cas.  543,  46  Minn.  321,  48  A'. 
W.  Rep.  1129.  —  Following  Hennepin 
County  Com'rs  v.  Dayton,  17  Minn.  237. 

A  company  that  enters  into  an  agreement 
with  the  owner  of  lands  adjoining  a  street, 
and,  in  that  agreement,  merely  refers  to  such 
street  as  a  landmark,  does  not  thereby  dedi- 
cate such  street  to  the  public ;  nor  is  the  fact 
that  such  street  is  designated  as  an  existing 
highway  on  a  map  of  lands  coidemned  by  the 
company  any  evidence  of  d(  dication.  Mere- 
dith V.  Sayre,  32  N.  J.  Eg.  557.— Reviewed 
IN  State  (Central  R.  Co.,  Pros.)  v.  Bayonne, 
43  Am.  &  Eng.  R.  Cas.  176,  52  N.  J.  L.  503. 

An  exchange  between  an  owner  and  such 
corporation,  and  their  deeds,  conveyed  land 
on  such  street,   //eld,  that,  while  such  recog- 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  4-6. 


[•43 


nition  of  the  street  was  tantamount  to  a 
dedication,  it  would  not  prevent  either  of 
them  from  seelcing  to  vacate  it  by  lawful 
means.  Mtrtdith  v.  Sayri,  32  N.J,  Eq.  557. 
Adjoining  landowners  covenanted  that 
they  would  leave  a  street  between  their 
lands  thirty  feet  wide,  which  should  be  "  for- 
ever kept  open  as  a  highway  in  common  for 
the  use  of  the  persons  who  may  be  the  own- 
ers of  the  lots  or  land  bounded  on  either 
side."  This  new  street  did  not  terminate  at 
any  street  or  alley.  Hild,  that  this  was  not 
a  dedication  to  the  public,  so  as  to  give  the 
municipal  authorities  the  right  to  control  it, 
or  to  authorize  the  laying  of  a  railroad  track 
thereon.  Talbott  v.  Richmond  &*  D,  R.  Co., 
31  Gratt,  {Va.)  6»l. 

4.  Necessity  of  acceptance.— An  in> 
tention  by  the  landowner  to  dedicate  land 
for  a  public  highway  is  not  sufficient.  There 
must  be  an  acceptance  by  the  public ;  and 
the  acceptance  of  a  deed  from  one  who  holds 
the  land  in  trust  is  not  a  sufficient  accept- 
ance by  the  public.  Neto  York,  N.  H.  &• 
H.  R.  Co.  v.  Ntw  Haven,  46  Conn.  257. 

An  acceptance  by  the  public  will  not  be 
presumed  where  it  does  not  appear  that  the 
way  is  one  of  common  convenience  and 
necessity,  and  therefore  beneficial  to  the 
public.  New  York,  N.  H.  &»  H.  R.  Co.  v. 
New  Haven,  46  Conn.  257. 

Where  a  railroad  company  obtains  title  in 
fee  to  certain  land,  and  the  city,  which  claims 
that  the  land  had  previously  been  dedicated 
for  a  street,  acquiesces  in  the  claim  of  the 
company  for  nearly  forty  years,  if  the  land 
ever  was  dedicated  it  will  be  deemed  aban- 
doned, and  the  city  can  only  take  it  for  a 
highway  by  condemning  it,  as  in  any  other 
case.  Nna  York,  N.  H.  6-  H.  R.  Co.  v.  New 
Haven,  ^6  Conn.  357. 

5.  Sufficiency  of  acceptance.  —  To 
show  the  establishment  of  a  public  street 
or  highway  through  a  common-law  dedica- 
tion, it  is  not  necessary  that  any  formal  act 
of  acceptance  by  the  public  authorities  be 
shown.  Acceptance  may  be  shown  by  user 
by  the  public,  and  by  an  actual  assumption 
of  care  and  control  over  the  street  by  the 
public  authorities,  as  by  working  upon  or 
grading  it.  Brakken  v.  Minneapolis  &*  St. 
L.  R.  Co.,  J  Am.  &*  Eng.  R.  Cas.  593,  29 
Minn.  41,  ii  A'.  W.  Rep.  124.  Albert  v. 
Gulf,  C.  6-  S.  F.  R.  Co.,  2  Tex.  Civ.  App. 
664,  21  S.  W.  RfP.  779- 

Where  a  dedicated  street  is  opened 
obliquely  over  a  railroad,  the  court  will  not 


interfere  with  the  discretion  of  the  com- 
mon council  in  accepting  the  same  and 
ordering  work  to  be  done  thereon,  where  it 
is  acting  within  its  charter,  and  it  does  not 
appear  that  the  crossing  is  unnecessary,  or 
a  dangerous  obstruction  to  the  company's 
right  of  travel.  State  {Central  R.  Co.,  Pros.) 
v.  Eliaabeth,  35  N.J.  L.  359;  affirmed  in  37 
N.J  L.  432. 

When  an  ordinance  is  passed  to  open  a 
street  which  has  been  laid  out  and  marked 
on  the  map  and  grade  of  the  commissioners 
of  Bayonne  across  prosecutor's  track,  and 
the  commissioners  appointed  to  assess  the 
value  of  the  land  taken  and  damages  make 
no  award  to  the  railroad  corporation,  and 
indicate  that  no  award  is  made  because  of 
a  dedication  of  the  lands  to  public  use,  and 
the  report  is  confirmed,  the  whole  proceed- 
ing amounts  to  an  acceptance  by  the  munici- 
pal corporation  of  the  dedication,  if  any  has 
been  made.  State  (Central  R.  Co.,  Pros.)  v. 
Bayonne,  43  Am.  6*  Eng.  R.  Cas.  176,  52  N. 
J.  L.  503,  20  Atl.  Rep.  69. 

O.  Proof  of  dedication,  generally. 
—Testimony  by  the  directors  of  a  railroad 
corporation  which  had  constructed  a  road 
upon  its  land  that  it  was  the  intention  of 
the  corporation,  at  the  time  of  its  construc- 
tion, to  make  it  a  public  road,  and  that  the 
land  was  purchased  for  that  purpose,  is  ad- 
missible in  an  action  to  have  it  declared  a 
public  highway.  It  is  not  necessary  that  a 
formal  resolution  of  the  intention  of  the 
corporation  should  have  been  entered  upon 
its  minutes.  People  v.  Eel  River  6-  E.  R, 
Co.,  98  Cal.  66s,  33  Pac-  Kep.  728. 

In  an  action  against  a  township  trustee, 
for  trespass  in  entering  plaintiff's  close  and 
cutting  down  fence  posts  thereon,  a  dedica- 
tion of  the  locus  in  quo  to  public  use  was 
proved  by  evidence  showing  that  a  railroad 
company,  to  secure  a  lower  grade  for  its 
road  across  a  street  forming  the  northern 
boundary  of  a  city,  was  to  furnish  a  strip  of 
plaintiff's  ground  for  a  street  crossing  fur- 
ther north,  at  surface  grade,  and  entered  into 
negotiations  with  plaintiff,  and  agreed,  not 
in  writing,  upon  a  price ;  that  the  company 
took  possession  of  the  old  street  crossing, 
and  its  engineer,  assisted  by  plaintiff,  sur- 
veyed the  line  of  the  new  road ;  that  a  new 
bridge  was  necessitated  by  the  change  of 
highway,  and  was  constructed;  and  that 
plaintiff  resided  in  immediate  proximity  to 
the  premises  occupied,  and  liad  knowledge 
of  the  use  of  his  land  for  the  highway  as 


IT 


544 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  7,8. 


changed  from  the  time  it  commenced,  al- 
though plaintiff  never  received  payment  (or 
his  lund  from  the  company  or  the  county. 
Campitlt  V.  O'BrUn,  lo  Am,  &*  Eng,  E.  Cas. 
366. 75  /«</.  323. 

No  particular  form  or  ceremony  is  neces* 
■ary  in  the  dedication  of  land  to  public  use ; 
ail  that  is  required  is  the  assent  of  the 
owner  and  the  fact  of  its  being  used  for 
public  purposes  as  intended  by  the  appro- 
priation. But  when  the  dedication  is  not 
expressed,  and  is  to  be  inferred  from  tiie 
acts  and  conduct  of  the  owner,  and  the  use 
by  the  public,  these  ought  to  be  such  as  to 
exclude  any  other  hypothesis  but  that  of 
dedication.  In  all  such  cases  the  consent 
of  the  owner  must  clearly  appear.  AVn/  Or- 
Itans  &»  C.  fi.  Co.  v.  CarroUton,  3  La,  Ann, 
382. 

Where  the  dedication  of  a  street  is  sought 
to  be  established  either  by  the  recording  of 
a  plan,  or  by  the  actual  use  of  the  street  by 
the  public,  or  by  such  an  acceptance  by  the 
public  as  would  be  binding  upon  the  owner 
by  estoppel,  the  evidence  must  be  clear. 
Verona  v.  Allegheny  Valley  K,  Co,,  1 52  Pa. 
St.  368.  25  All.  Hep.  518. 

7. by  maps  aud  plans.— A  land- 
grant  railroad  platted  certain  of  its  land 
with  regularly  laid  out  streets,  which  were 
declared  to  be  dedicated  to  the  public,  re- 
serving a  strip  running  through  the  land 
for  the  tracks  of  the  railroad.  Held,  that 
this  reservation  did  not  extend  to  the  points 
where  streets  intersected  and  crossed  it,  so 
as  to  allow  the  company  to  erect  a  depot 
on  such  crossing,  and  thereby  close  the 
crossing.  Northern  Pac.  R.  Co.  v.  Spokane, 
16  Fed.  Pep.gis. 

And  so  long  as  the  company  had  other 
facilities  for  conveniently  handling  its  busi- 
ness, it  would  not  be  allowed  to  maintain  a 
depot  on  such  crossing  merely  because  the 
location  would  give  it  some  advantages  over 
other  competing  roads.  Northern  Pac.  P. 
Co.  V.  Spokane,  56  Fed.  Pep.  91 5. 

Where  a  defective  town  plat  is  given  in 
evidence  to  show  a  common-law  dedication 
of  a  street,  oral  declarations  of  the  parties 
who  signed  it  as  to  what  they  intended  to 
offer  by  it  to  the  public  are  inadmissible. 
What  was  intended  by  it  must  be  deter- 
mined from  the  plat  alone.  IVayMata  v. 
Great  Northern  P.  Co.,  46  Minn.  505,  49  N. 
W.  Pep.  205. 

Platting  a  narrow  undivided  strip  on  the 
water  side  of  a  street  laid  out  upon  lands 


underwater,  with  other  streets  running  to  it 
on  the  land  side,  but  not  across  it,  excludes 
any  inference  of  intention  to  dedicate  lands 
outside  of  such  street,  and  effectually  limits 
the  public  easement.  Duluth  v.  St.  PaulS* 
D.  P.  Co.,  49  Minn.  301,51  ^'  ^-  ^*P-  '  '63. 
—Following  Gilbert  v.  Eldridge,47  Minn. 
210;  Hanford  v.  St.  Paul  &  D.  R.  Co.,  43 
Minn.  104. 

Where  an  inspection  of  a  plat  shows  the 
whole  of  a  triangular  space  to  have  been 
dedicated  to  the  public  as  a  highway,  the 
original  owner  cannot  maintain  an  action 
of  trespass  against  a  railroad  company  for 
constructing  a  railroad  thereon,  on  the 
alleged  ground  that  he  is  still  the  owner. 
Sanborn  v.  Chicago  &*  N.  W.  P.  Co.,  16 
Wis.  ii> 

Where  landowners  by  their  plat  reserve 
certain  lands  to  themselves,  they  may,  by 
a  subsequent  and  independent  act  in  pais, 
dedicate  the  reserved  lands  to  the  public; 
but  a  recorded  plat  cannot  be  enlarged  by  a 
subsequent  parol  construction,  cither  by  the 
landowners  or  the  public,  so  as  to  include 
the  reserved  lands.  Diedrich  v.  North- 
western Union  P.  Co.,  42  Wis.  348,  15  Am. 
Py.  Pep.  9. 

In  1871  the  owner  of  land  had  a  plan 
made  and  registered,  laying  out  the  land 
into  lots  and  streets.  Most  of  the  land,  in- 
cluding that  part  marked  as  O.  street,  was 
fenced  in  and  used  for  pasturage,  and  so 
continued  until  1881,  when  a  portion  thereof 
including  O.  street,  no  lots  fronting  thereon 
having  been  disposed  of,  was  sold  to  de- 
fendant company,  which  treated  the  land 
as  private  property,  using  it  as  a  shunting 
yard.  Held,  that  O.  street  was  not  a  high- 
way within  the  meaning  of  the  railway  act. 
Shoebrink  v.  Canada  Atl.  P.  Co.,  37  Am.  &* 
Efig,  P.  Cas.  462,  16  Ont.  515.— Distin- 
guishing Williams  v.  Great  Western  R. 
Co.,  L.  R.  9  Ex.  157.  Quoting  Daniel  v. 
Metropolitan  R.  Co..  L.  R.  3  C.  P.  216. 

8. by  acts  In  palH.— Evidence  that 

for  tliirty  years  the  public  used  a  crossing, 
and  that  up  to  a  short  time  before  the  com- 
mencement of  a  suit  the  railway  company 
had  recognized  their  right  to  do  so,  and  in 
the  construction  of  buildings  on  its  right 
of  way  had  left  an  opening  the  width  of 
the  street ;  had  constructed  approaches  from 
both  sides ;  had  constructed  and  maintained 
a  plank  crossing  for  the  convenience  of  the 
public ;  had  erected  and  maintained  at  the 
place  a  sign  reading  "  Railroad  crossing, 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  »-ll. 


645 


look  out  for  the  cars,"  and  for  a  portion  of 
the  time  had  kept  a  flagman's  station  there, 
is  sufficient  to  show  a  parol  dedication  of 
the  highway  to  the  public.  Illinois  C.  R, 
Co.  V.  Piopie,  49  ///.  App.  538. 

A  company  laid  its  track  over  a  traveled 
street  or  road  which  had  not  theretofore 
been  legally  laid  out  as  such,  and  the  public 
thereafter  continued  to  use  the  crossing  as 
a  highway  for  many  years,  without  inter- 
ference by  the  company,  which,  on  the  con- 
trary, kept  the  same  in  proper  repair  for 
public  use,  and  planked  the  same,  and  built 
cattle-guards  on  each  side  thereof.  H*ld, 
•ufiicient  evidence  of  a  dedication  thereof 
for  public  use  as  a  highway.  St.  Paul,  M. 
&*  M.  R,  Co,  V.  Minneapolis,  44  Minn.  149, 
46  N.  W.  Rep.  324. 

O. when  a  question    for   the 

Jury.  —  The  question  whether  a  company 
has  dedicated  a  highway  for  public  use 
across  its  railroad  is  one  of  fact  for  the  jury. 
Skjeggerud  v.  Minneapolis  &••  St.  L.  R.  Co., 
38  Minn.  56,  35  N.  W.  Rep.  573. 

10.  Proof  of  occeptance.— The  mere 
laying  out  of  lots,  and  making  a  map  show- 
ing streets,  do  not,  of  themselves,  deprive 
the  owner  of  the  right  to  use  the  property 
as  his  own.  There  must  be  an  acceptance 
of  the  dedication,  of  which  the  sale  and  pur- 
chase of  lots  are  sufficient  proof.  In  deter- 
mining the  respective  rights  of  a  city  and 
those  of  a  railroad  to  which  a  right  of  way 
was  granted  after  the  filing  of  a  map  and 
its  acknowledgment,  as  provided  in  Ala. 
Act  of  Feb.  28,  1887.  the  court  holds  that 
the  interest  which  passed  by  virtue  of  the 
Statute  is  superior  to  any  that  could  subse- 
quently be  conveyed,  without  regard  to 
the  terms  and  covenants  of  any  such  subse- 
quent grant  and  conveyance.  Birmingham 
Mineral  R.  Co.  v.  Bessemer,  98  Ala.  374,  13 
So.  Rep.  487. 

Persons  holding  title  to  lands  through 
which  a  railroad  company  had  acquired  a 
right  of  way  laid  oil  the  same  into  town 
lots  by  a  plat  v.'hich  was  recorded,  leaving 
strips  on  each  side  of  the  right  of  way. 
There  was  an  acquiescence  in  this  plat  for 
ten  years,  during  which  the  original  pro- 
prietor paid  no  taxes  on  such  vacant 
grounds.  Held,  notwithstanding  defects  in 
the  plat,  that  the  long  acquiescence  clearly 
indicated  an  intention  to  adopt  the  plat  and 
to  make  the  dedication  of  the  vacant  strip 
to  the  use  of  the  public;  and  where  the 
railroad  used  the  ground  for  sixteen 
7  D.  R.  D.— 35 


years,  and  the  public  alto  enjoyed  its  use 
for  wood,  lumber,  pens  for  grain,  and  as  a 
pass-way,  these  facts  abundantly  proved 
the  acceptance  of  the  dedication.  Smith  v. 
Flora,  64  ///.  93. 

11.  ProNuinptlon  of  dedication 
from  public  user,  acquicHceuce,  etc. 
— A  railroad  purchased  a  strip  of  land  ex- 
tending from  its  station  to  the  county  road, 
over  which  it  constructed  a  road  which  was 
used  by  the  public  as  a  highway  without 
interruption  for  four  years,  when  the  com- 
pany erected  a  gate  near  one  end  of  it  to 
prevent  driving  on  its  wharf  at  night.  The 
gate  was  left  open  during  the  day  but 
closed  at  night.  Three  years  later  the 
company  built  a  warehouse  directly  across 
the  road  near  its  station,  and  placed  a  per- 
manent gate  at  the  extremity  near  the  county 
road,  which  it  kept  securely  locked.  In 
an  action  to  have  the  obstructions  removed 
and  the  road  declared  a  public  highway — 
held,  that  the  company  had  dedicated  the 
strip  to  public  use  at  the  time  the  road  wag 
opened,  and  that  the  public  had  accepted 
the  dedication  by  user,  and  had  used  the 
highway  continuously  from  the  time  it  was 
opened  until  the  final  obstructions  were 
erected.  People  v.  Eel  River  6*  E.  R.  Co., 
98  Cal.  665,  33  Pac.  Rep.  728. 

The  use  of  a  road  as  a  highway  by  the 
public  for  more  than  ten  years,  with  the 
knowledge,  consent,  and  permission  of  the 
owner,  amounts  to  a  dedication  of  it  to  that 
use,  and  a  railroad  company  may  lay  its 
track  over  and  along  such  highway.  Gear 
v.  Chicago,  C.  6-  D.  R.  Co.,  39  Iowa  23.— 
FoLLOWiNO  Milburn  v.  Cedar  Rapids.  la 
Iowa  246. 

A  highway  which  is  opened  and  used 
with  the  assent  or  acquiescence  of  the 
owner  will  be  presumed  to  have  been  in- 
tentionally dedicated  by  him  to  the  use  of 
the  public.  The  facts  will  justify  the  pre* 
sumption  that  he  is  aware  of  its  use.  But 
the  user  of  wild  and  uninclosed  timber  or 
prairie  land  as  a  highway  will  not  raise  such 
a  presumption.  So  held,  in  an  action  against 
a  railway  for  obstructing  a  highway.  Statt 
V.  Kansas  City,  St.  /.  &*  C.  B.  R.  Co.,  45 
Iowa  139. 

A  road  within  the  meaning  of  Tex.  Rev. 
St.,  art.  4232,  is  one  dedicated  to  the  public 
use,  or  commonly  used  and  traveled  on  by 
the  public,  and  the  character  of  the  road 
may  be  established  as  public  by  evidence 
of  long-continued  use  as  such.    Marhham 


'f'l 


■4^ 


646  STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  12, 18. 


1:^ 


m 


r.  Houston  &»  T.  C.  /t.  Co..  i  T*x,  App. 
{Civ.  Cat.)  35. 
12.  Effect  of  dedication  on  rierhts 

of  donor.— Dedication  of  land  (or  streets 
<vork!.i  an  estopped  in  pais,  and  precludes 
the  ori|^!nal  owner  from  revoking  it.  Cin- 
cinnati v.  lV/iife,6  Pet.  {(/.S.)  431.— DlS< 
TINGUISMED  IN  Green  v.  Tacoma,  51  Fed. 
Rep.  622: ;  T;trre  Haute  &  S.  R.  Co.  v. 
Rodel.  '?  Am.  &  Eng.  R.  Cas.  284,  89  Ind. 
128,  46  Am.  Rep.  164. 

When  the  owner  of  land  lays  it  off  into 
lots  or  blocks,  setting  apart  certain  portions 
as  streets,  with  a  view  of  establishing  a 
town,  a  subsequent  sale  and  conveyance  of 
lots  abutting  on  the  street,  as  shown  by  a 
map  which  is  referred  to,  is  a  complete  and 
irrevocable  dedication  of  it  to  the  use  of 
the  purchasers  and  the  public,  and  the 
grantor  cannot  afterwards  impose  on  the 
land  an  additional,  inconsistent  servitude; 
but  if  lots  are  sold  with  reference  to  a  map 
on  which  are  marked  lines  showing  a  reser- 
vation of  a  part  of  the  street  for  railroad 
purposes,  the  purchaser  buys  subject  to  this 
reservation,  and  his  .itle  as  owner  of  the 
ultimate  fee  to  the  centre  of  the  street  is 
subordinate  to  the  reserved  right.  Evans  v. 
Savannah  &*  W.  R.  Co.,  90  Ala.  54,  7  So. 
Rep.  7s8. 

By  the  making  and  recording  of  a  town 
plat,  under  the  statutes  of  Indiana,  the 
designation  of  streets,  lanes,  and  alleys  on 
the  plat  gives  to  the  public  only  an  ease- 
ment therein  for  such  use  as  the  public  have 
a  right  to  make  of  them  ;  but  the  fee  simple 
remains  in  the  proprietor.  Cox  v.  Lonisrilh, 
N.A6'  C.  R.  Co..  48  Ind.  178.— Criticis- 
ing Perley  v.  Chandler,  6  Mass.  454 ;  New 
Albany  &  S.  R.  Co.  v.  O'Daily,  13  Ind.  353. 
Quoting  Protzman  v.  Indianapolis  &  C.  R. 
Co.,  9  Ind.  467  ;  Haynes  v.  Thomas,  7  Ind. 
38.  Reviewing  Tate  v.  Ohio  &  M.  R.  Co., 
7  Ind.  479. 

Where  a  corporation  owning  iand  adjoin- 
ing a  city  lays  out  and  plats  its  land  as  an 
addition  to  the  city,  and  dedicates  the 
streets  for  public  use,  with  the  condition 
that  it  reserves  to  itself,  its  successors,  or 
assigns,  the  right  to  use  and  occupy  the 
streets  for  the  purpose  of  operating  a  rail- 
road, such  reservation  does  not  relieve  the 
corporation  from  constructing,  op  rating, 
and  maintaining  its  line  of  railr'  ad  in  a 
legal  and  proper  manner.  Ottawa,  O.  C.  &» 
C.  G.  R.  Co.  V.  Larson,  36  Am.  &*  Eng.  R. 
Cm.  163,  40  /Can.  301,  2  L.  R.  A.  59,  19  Pae. 


Rep.  661.— Followed  in  Ottawa,  O.  C.  ft 
C.  G.  R.  Co.  V.  Peterson,  40  Km.  310. 

Where  a  proprietor  of  lands  dedicates  to 
public  use  two  streets,  reserving  a  strip  of 
land  between  them,  the  use  made  by  him  of 
ths  land  so  reserved  at  the  time  of  the  dedi- 
cation will  not  deprive  him  or  his  assigns 
of  the  right  of  applying  it  afterwards  to 
other  uses.  French  v.  New  Orleans  &*  C. 
R.  Co.,  2  La.  Ann.  So.— Quoted  in  Tilton 
V.  New  Orleans  City  R.  Co.,  35  La.  Ann. 
1062. 

Where  the  language  of  a  deed' is  sufficient 
to  create  an  easement  of  a  right  of  way 
over  the  prem'ses  conveyed  as  an  appurte* 
nant  to  the  grantor's  premises  lying  adjacent 
thereto,  and  words  are  added  indicating  a 
purpose  to  dedicate  the  way  as  a  public 
street— A^/</,  that  the  creation  of  a  public 
right  to  be  enjoyed  infuturo  whenever  the 
public  authorities  might  see  (it  to  accept 
the  dedication  was  not  inconsistent  with 
the  private  easement  which  enured  to  the 
grantor  immediately  from  the  grant,  and 
that  the  latter  was  entitled  to  the  use  of  the 
way  although  the  public  had  not  accepted 
the  dedication.  Booraem  v.  North  Hudson 
County  R.  Co.,  40  N.J.  Eg.  557,  5  Atl.  Rep. 
106;  affirming  39  N.  J.  Eq.  465.— FOL- 
LOWED IN  Dodge  V.  Pennsylvania  R.  Co., 
43N.J.  Eq.  351. 

13. or  those  claiming  nnder 

liini.— Where  a  proprietor  of  unimproved 
land,  within  the  limits  of  an  incorporated 
city,  lays  out  and  dedicates  a  portion  of  it  as 
a  street,  then  lays  of!  lots  on  such  street, 
and,  with  a  view  of  enhancing  their  value, 
sells  them  with  the  express  stipulation  that 
the  street  on  which  they  so  abut  "  shall  be 
kept  open  to  its  full  dimensions  for  all  time," 
if  the  city  government  accepts  the  street,  it 
takes  it  encumbered  with  a  trust  in  favor  of 
the  purchasers  of  said  lots  and  their  suc- 
cessors in  title;  and  equity  will  eu(orce  that 
trust.  Savannah,  A.  &*  G.  R.  Co.  v.  Shiels. 
33  Ga.  601. 

When  one  who  has  made  a  dedication  of 
land  for  a  street  subject  to  a  right  to  desig- 
nate a  portion  thereof  for  railroad  purposes 
has  conveyed  a  central  strip  of  thirty-three 
feet  to  a  company  for  railroad  purposes,  a 
conveyance  aftervards  made  of  land  along 
such  a  highw"y  will  pass  all  the  title  the 
grantor  has  under  Che  street  to  its  centre ; 
the  circumstance  that  the  grantor  does  not 
own  all  the  land  to  the  centre  will  not  re- 
strict the  conveyance  to  the  line  of  the 


STREETS  AND  HIGHWAYS  (RAILWAYS.  IN),  14-18.  M7 


I 


■treet.    Ayr*s  v.  PenHsyhania  R.  Co.,  48  N. 
J.  L.  44.  3  All,  Rep.  885.  57  Am.  Rep.  538. 

14.  Effect  ou  rights  of  third  per- 
sons or  the  public.  —  The  dedication  of 
a  street  to  the  public  does  not  authorize  it 
to  be  used  for  an  ordinary  railroad  track ; 
and  the  municipal  representatives  cannot 
authorize  it  to  be  so  used  without  compensa- 
tion to  adjacent  owners.  Grand  Rapids  &* 
I.  R.  Co.  V.  Heisel,  10  Am.  &*  E^g.  R.  Cas. 
a6o,  47  Mich  393,  11  N.W.  Rep,  213 ;  former 
appeal  in  38  Mich.  62. 

Where,  upon  a  town  plat,  a  street  is  laid 
down  and  the  only  boundary  for  part  of  the 
•treet  on  one  side  is  a  navigable  lake  or 
rivci-.  the  street  extends  to  low-water  mark, 
and  the  dedication  will  be  held  to  have  been 
intended  to  enable  the  public  to  get  to  the 
water  for  the  better  enjoyment  of  the  public 
riglit  of  navigation.  IVayzata  v.  Great 
Northern  R.  Co.,  50  Minn.  438,  ^i  N.  IV. 
Rep.  913. 

A  dedication  of  land  for  public  use  as  a 
highway  may  be  made  subject  to  a  right  to 
designate  a  portion  thereof  for  use  for  rail- 
road purposes;  and  when  such  portion  has 
been  designated  and  devoted  to  railroad 
purposes,  the  public  use  will  be  suspended 
and  remain  suspended  so  long  as  that  portion 
is  devoted  to  such  purposes.  Ayres  v.  Penn- 
syhania  R.  Co.,  48  A^.  /.  L.  44,  3  All.  Re'^. 
885,  57  Am.  Rep.  538. 

The  fact  that  a  statute  authorizes  the 
county  authorities  "to  lay  out  and  estab- 
lish, change,  and  discontinue  public  roads 
and  highways"  does  not  negative  the  ex- 
istence of  public  roads  otherwise  established, 
and  relieve  the  railroad  from  the  duty  of 
running  its  trains  across  a  public  road  by 
dedication,  so  as  to  avoid  injury  to  the  pub- 
lic. Missouri  Pac.  R.  Co.  v.  Lee,  35  Am.  6* 
£ng^.  R.  Cas.  364,  70  Tex.  496.  7  S.  IV. 
Rep.  857. 

a.  Taking  Land  for  Streets  and  Laying 
Out  Roads. 

15.  California.  —  An  answer  m  pro- 
ceed ings  by  a  city  to  condemn  a  right  of 
way  for  the  opening  of  a  street,  setting  forth 
that  the  action  Is  instituted  upon  the  mo- 
tion and  at  the  request  and  f'  .  -.lie  benefit 
of  a  railroad  company,  goes  to  the  public 
character  of  the  use  and  the  necessity  for 
its  establishment,  and  may  properly  be 
stricken  out  as  insufficient.  Santa  Ana  v. 
Harlitt,  99  Cal.  $38,  34  Pac.  Rep.  224. 


The  action  of  a  city  council  In  ordering 
the  opening  of  a  street,  after  the  steps  pro- 
vided by  statute  have  been  taken,  and  the 
resolution  and  ordinance  ordering  the  work 
have  been  regularly  adopted,  is  final  and 
conclusive  of  the  necessity  of  the  improve- 
ment, and  the  courts  may  not  adjudicate 
the  question  of  such  necessity  in  an  action 
or  proceeding  for  condemnation  of  lands 
necessary  to  the  improvement.  Santa  Ana 
v.  Harlin,  99  Cal.  538,  34  Pac.  Rep.  224. 

10.  Connecticut.— The  selectmen  of 
a  town  laid  out  a  highway  nearly  parallel 
with  a  railroad  track,  leaving  between  the 
highway  and  the  track,  through  the  entire 
length  of  the  former,  a  narrow  strip  which 
for  more  than  twenty  years  had  been  used 
as  a  highway,  but  which  was  then  on  the 
company's  right  of  way,  and  in  part  owned 
by  it  in  fee  simple,  and  on  which  stood  the 
company's  depot,  but  which  was  too  narrow 
to  meet  the  demands  of  public  travel. 
Petitioner  sought  to  have  the  proceedings 
set  aside  on  the  ground  that  the  open  space 
had  been  used  so  long  as  to  make  it  a  pub- 
lic highway,  and  that  the  selectmen  had  no 
authority  to  make  a  mere  enlargement 
thereof.  Held,  that  the  power  given  to  the 
selectmen  to  lay  out  such  highways  "at 
they  shall  judge  necessary "  gave  them 
power  to  locate  the  road  in  question,  and 
the  report  of  the  selectmen  should  not  be 
set  aside.  Sackettv.  Greenwich,  38  Conn.  535. 

A  town  has  authority,  under  Conn.  Gen. 
St.  §  3490,  and  also  under  the  general  stat- 
utes relating  to  highways,  to  take  land  for 
an  alteration  of  a  highway  required  by  the 
railroad  commissioners  under  section  3489. 
Westbrook's  Appeal,  37  Am.  d*  Eng.  R.  Cas. 
446,  57  Conn.  9$,  16  Atl.  Rep.  724. 

17.  Georgia. — A  municipal  corporation 
cannot  appropriate,  for  the  opening  of  a 
street,  land  which  has  been  puichased  by 
the  state  for  the  erection  of  car  shops  and 
other  buildings  appertaining  to  a  railroad 
owned  by  it.  Mayor,  etc.,  of  Atlanta  v. 
Central  R.  6-  B.  Co.,  53  Ga.  120. 

18.  Illinois.— (I)  fn general.— Tht  fact 
that  property  sought  to  be  taken  for  a  pub- 
lic street,  by  a  town  authorized  to  do  so, 
belongs  to  a  corporation,  which  acquired  ite 
title  by  the  exercise  of  the  right  of  eminent 
domain,  does  not  affect  the  right  to  take  it. 
There  can  be  no  distinction  in  the  ezerci^ 
of  this  right  between  the  property  of  indi- 
viduals and  of  chartered  corporations,  nor 
between  the  rights  to  land  acquired  by  « 


Iri 


if. 


fi'i'J 


i',r.' 


648 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  18. 


corporation  and  title  held  by  the  citizen 
under  letters  patent  ^rom  the  government. 
Ckuago,  A\  I.  <S-  P.  :\  Co.  v.  LaJi*.  71 
///.  333.— Quoting  Richmond,  F.  &  P.  R. 
Co.  V.  Louisa  R.  Co.,  13  How.  (U.  S.)  71 ; 
West  River  Bridge  Co.  v.  Dix.  6  How.  529.— 
Quoted  and  followed  in  Illinois  C.  R. 
Co.  V.  Chicago,  141  111.  $86. 

A  city,  by  the  condemnation  of  a  railroad 
right  of  way  for  a  street,  acquires  only  an 
easement.  By  clause  89  of  section  i,  art.  9, 
of  the  statute  relating  to  cities  and  villages, 
no  power  is  granted  to  the  city  to  acquire 
the  exclusive  control  or  the  exclusive  right 
of  occupancy  of  that  part  of  the  company's 
tracks  and  right  of  way  across  the  street 
which  is  sought  to  be  opened  or  extended. 
In  such  case,  neither  will  have  the  right  of 
occupancy  to  the  exclusion  of  the  other,  but 
each  subordinate  to  the  right  of  the  other  for 
the  separate  use  contemplated.  Illinois  C,  R. 
Co.  v.  Chicago,  138  ///.  453.  28  A'.  E.  Rep.  740. 

The  taking  and  appropriating  of  properly 
for  a  public  street  by  a  city  or  village  is  in 
its  nature  (or  a  public  use,  and  cannot  be 
questioned  or  denied  unless  the  power  or 
discretion  is  manifestly  abused  to  the  op- 
pression of  the  citizen ;  and  when  the  use  is 
public  the  judiciary  cannot  inquire  into  the 
necessity  or  propriety  of  exercising  the  right 
of  eminent  domain.  That  right  is  political 
in  its  nature,  not  judicial.  Illinois  C.  R.  Co. 
V.  Chicago,  51  Am.  &*  Eng.  R.  Cas.  528, 
141  ///.  $86,  30  N.  E.  Rep.  1044.— Quoting 
Curry  v.  Mt.  Sterling,  15  III.  320;  Brush 
V.  Carbondale,  78  III.  371 ;  Sheridan  v.  Col- 
vin,  78  III.  237.  Quoting  and  following 
Chicago,  R.I.  &  P.R.  Co.  v.  Uke,  71  III.  333. 

Where  a  railroad  company  has  acquired 
a  perpetual  easement  in  a  street  where  its 
track  is  laid,  this  is  property,  and  cannot  be 
taken  or  damaged  for  public  use  without 
com|>ensation.  Chicago  &*  N.  W.  R.  Co. 
M.Jefferson,  14  ///.  App.  61$. 

(2)  CondemnaiioH  —  Election  of  remedies. 
— The  condemnation,  for  a  public  street, 
of  land  whicn  is  held  by  a  company  as  a 
right  of  way,  should  be  subject  to  its  joint 
use  by  the  railroad  in  the  oxercise  of  its 
franchise  and  by  the  public  as  a  street. 
These  rights  to  its  use  and  occupancy  co- 
exist in  the  city  condemning  and  the  rail- 
way company.  Illinois  C.  R.  Co.  v.  Chicago, 
138  ///.  453,  28  N.  E.  Rep.  740.— Followed 
in  Chicago  ft  N.  W.  R.  Co.  v.  Chicago,  140 
III.  309.  Quoted  in  Illinois  C.  R.  Co.  v. 
Chicago,  141  III-  $86. 


The  court  in  which  a  condemnation  pro* 
ceeding  is  brought  by  a  village  or  city,  for 
the  purpose  of  extending  a  street,  has  am- 
ple power  and  aushority  to  determine  the 
sufficiency  of  the  ordinance  and  the  petition 
to  authorize  the  condemnation.  If  the  city 
or  village  is  exceeding  its  powers  by  at- 
tempting to  appropriate  railroad  property 
to  its  exclusive  use,  the  court,  upon  motion, 
may  dismiss  the  petition.  Illinois  C.  R.  Co, 
V.  Chicago,   138  ///.  4  $3.  28  A'.  E.  Rep.  740. 

A  bill  in  chancery  by  a  railway  company 
to  restrain  a  village  or  city  from  proceeding 
to  condemn  the  right  of  way  of  the  former 
for  a  public  street,  which  fails  to  show  that 
the  city  is  seeking  to  take  possession  of  the 
land  sought  for  the  street,  and  does  not 
seek  to  enjoin  the  city  from  any  act  or  acts 
having  for  their  object  the  taking  of  pos- 
session of  the  right  of  way  without  making 
compensation,  or  of  interfering  with  the 
company  in  its  enjoyment  prior  to  the  as- 
certainment and  payment  tliereof,  is  bad  on 
demurrer.  So  where  all  the  matters  com- 
plained of,  if  available  at  all,  are  of  such  a 
character  as  may  be  interposed  in  the  con- 
demnation proceeding,  the  bill  may  be 
properly  dismissed  for  want  of  jurisdiction. 
Illinois  C.  R.  Co.  v.  Chicago,  138  ///.  4$3,  28 
N.  E.  Rep.  740. 

If  cities  and  villages  ma/  elect  between 
the  condemnation  proceed  ng»  prescribed 
by  the  act  relating  to  eniinep'  domain  and 
the  act  relating  to  cities  and  villages,  their 
election  of  one  excludes  all  the  provisions 
of  the  other,  and  they  will  not  be  obliged 
to  proceed  part?y  under  both.  Chicago  &* 
N.  IV.  R.  Co.  V.  Chicago.  148  ///.  141,  3$  iV. 
E.  Rep.  881. 

Where  a  city  council  has  passed  an  ordi- 
nance providing  for  an  improvement,  and  it 
appears  that  private  property  must  be  taken 
or  damaged  in  order  to  make  the  improve- 
ment, the  right  to  file  a  petition  for  con- 
demnation arises  without  the  performance 
of  any  other  conditions.  Chicago  &*  N.  IV. 
R.  Co.  v.  Chicago,  148  ///.  141.  3$  AT.  E. 
Rep.  881. 

III.  Eminent  Domain  Act,  $  2,  which  re- 
quires a  petition  to  condemn  to  state  that 
the  compensation  for  the  land  taken  or 
damaged  cannot  be  agreed  upon  by  the 
parties  interested,  does  not  apply  to  a  case 
where  a  ciry  files  its  petition  to  condemn 
under  the  Cities  and  Villages  Act,  art.  9. 
That  article  and  section  2  of  the  former  act 
are  not  to  be  construed  as  in  pari  materia. 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  18. 


549 


Chicago  &*  N.  W.  R.  Co.  v.  Chicago,  148 
//;.  141,  35  A^  E.  Rtp.  88t. 

Where  two  judgments  are  entered  against 
a  railway  company  in  condeoination  pro- 
ceedings by  a  city,  and  an  appeal  is  taken  in 
one  case,  and  a  stipulation  is  filed  that  the 
other  judgment  shall  be  affirmed  or  set 
aside  accordingly  as  the  former  case  may  be 
decided,  if  the  judgment  is  affirmed  in  the 
case  appealed,  the  judgment  in  the  other 
case  will  be  treated  as  affirmed,  and  an  ap- 
peal therein  will  involve  only  the  proceed- 
ings subsequent  to  the  entry  of  the  original 
judgment.  Chicago  &*  N.  IV.  Ji.  Co.  v. 
Chicago,  148  ///.  141,  35  A'.  E.  Jiep.  881. 

Where  a  city,  after  judgment  of  condem- 
nation of  land  of  a  railroad  for  a  street, 
dismisses  the  petition,  and  seeks  by  a  new 
proceeding  to  condemn  the  very  same  land, 
so  as  to  avoid  payment  of  the  sum  awarded, 
the  remedy  of  the  company  is  not  by  a  bill 
in  equity  to  enjoin  the  second  proceeding, 
as  the  law  furnishes  a  complete  and  ade- 
quate remedy  by  motion  to  dismiss  the 
same.  Chicago,  R.  I.  6-  P.  R.  Co.  v.  Chi- 
cago, 148  ///.  479. 36  A'.  E.  Rep.  7«.— Refer- 
ring TO  Chicago,  R.  I.&  P.  R.  Co.  v.  Chi- 
cago, 143  111.  641. 

1  n  such  case,  the  city  may  have  the  order 
of  dismissal  set  aside,  pay  the  comprnsation 
awarded  in  the  former  proceeding,  take 
possession  of  the  land  condemned,  and 
open  the  street  over  the  same.  The  com- 
pany, by  having  the  second  proceeding  dis- 
missed, wilt  be  estopped  from  objecting  to 
the  setting  aside  of  the  order  dismissing 
the  first  proceeding.  Chicago,  R.  I.  &*  P. 
R.  Co.  v.  Chia^o,  148  ///.  479.  36  A':  E. 
Rtp.  11. 

An  allegation  of  inability  to  agree  upon 
the  compensation,  or  that  the  owner  of  the 
property  sought  to  be  taken  is  incapable  of 
consentmg,  or  that  his  name  or  residence  is 
unknown,  or  that  he  is  a  non-resident,  is 
necessary,  or  even  jurisdictional,  in  case  of 
petition  filed  under  the  provisions  of  the 
Eiiiincnt  Domain  Law.  But  where  the 
petition  is  filed  under  article  9  of  the  City 
and  Village  Act,  to  condemn  land  for  a 
street,  no  such  allegation  is  required.  Lake 
Shore  Sr*  M.  S.  R.  Co.  v.  Chicago,  148  ///.  509, 
37  A'.  E.  Rep.  88.— Following  Reed  v. 
Ohio  &  M.  R.  Co.,  126  111.  48;  Liebcrman  v. 
Chicago  &  S.  S.  R.  T.  R.  Co..  141  111.  140; 
Chicago,  B.  &  Q.  R.  Co.  71.  Ciianihcilain,  84 
III.  333;  Bowman  v.  Venice  &  C.  R.  Co., 
102  111.  4S9' 


The  statute  in  relation  to  tminent  domain 
provides  a  general  mode  of  condemnation, 
applicable  to  all  cases  for  the  exercise  of 
the  right  to  take  or  damage  private  property 
for  public  uses  by  any  corporate  or  munici- 
pal authority',  public  body,  officer,  agent, 
person,  co^nmission,  or  corporation.  In  all 
condemnation  proceedings  instituted  under 
that  statute  its  provisions  must  be  held  to 
apply.  Lake  Shore  &»  M.  S.  R.  Co.  v.  Chi- 
cago,  148  ///.  509,  37  A^.  E.  Rep.  88. 

But  the  legislature,  in  the  exercise  of  its 
undoubted  power,  has  seen  fit,  by  article  9 
of  the  City  and  Village  Act,  to  provide  for 
an  independent  and  somewhat  different 
mode  of  proceeding  in  cases  of  the  taking 
or  damaging  of  private  property  by  cities 
and  villages  for  local  improvements.  And 
the  intention  to  provide  such  differ^ 
ent  mode  of  procedure  by  cities  and 
villages  would  be  defeated,  if,  by  con- 
struction, the  two  statutes  should  be  prac- 
tically amalgamated,  so  as  to  make  all  the 
provisions  of  the  cne  apply  to  and  become 
a  part  of  the  other.  Lake  Shore  &*  M.  S. 
R.  Co.  v.  Chicago,  148  ///.  509,  37  N.  E. 
Rep.  88. 

Unquestionably  many  of  the  rules  pre> 
icribed  in  the  Eminent  Domain  Act  apply 
10  condemnation  under  article  9  of  the  City 
end  Village  Act.  But  the  provisions  of 
section  2  of  the  former  act  have  no  applica- 
tion to  a  proceeding  under  the  latter  act. 
Lake  Short-  6-  M.  S.  R.  Co.  v.  Chicago,  148 
///.  509.  37  ^-  E.  Rep.  88. 

In  a  proceeding  by  a  city  to  condemn  the 
right  of  way  of  a  railway  company  for  the 
extension  of  a  street  intersecting  another 
street  in  which  the  company  has  its  right  of 
way,  evidence  of  the  expense  the  company 
will  be  put  to  in  the  construction  of  the 
crossing  and  its  approaches,  and  of  the  cost 
of  erecting  gates,  and  the  house  and  ma- 
chinery for  operating  them,  and  also  the 
expense  of  4  gate-keeper,  and  of  keeping 
gates,  machinery,  and  crossing  in  repair,  is 
properly  excluded.  All  such  expenditures 
are  matters  fur  which  the  company  is  not 
entitled  to  any  compensation.  Lake  Shore 
&*  M.  S.  R.  Co.  V.  Chicago,  148  ///.  509,  37 
A'.  E.  Rep.  88. 

(3)  Compensation.  So  far  as  the  tak- 
ing of  a  strip  for  street  purposes  is  con- 
cerned, the  measure  of  compensation  will 
be  the  amount  of  decrease  in  value  of  the 
use  for  railroad  purposes  which  will  be 
caused  by  the  use  (or  the  purposes  of  a 


I  I 


MO         STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  19, 20. 


m' 


I)  i 


f'^i 


■trect,  luch  use  (or  the  purposes  of  a  street 
being  subject  to  the  use  of  the  company  for 
railroad  purposes.  Chicago  &»  N.  W.  R. 
Co.  V.  Chicago,  50  Am.  &•  Eng.  R,  Cat.  150, 
140  ///.  309,  29  N.  E.  R*p.  1 109. 

Where  a  judgment  fixing  the  compensa- 
tion, in  a  proceeding  by  a  city  under  article 
9  of  the  act  relating  to  cities  and  villages, 
has  been  rendered  without  appeal,  or  has 
been  affirmed  on  appeal,  it  cannot  be  said 
that  the  trial  court  has  nothing  to  do  but 
to  execute  such  judgment.  The  judgment 
being  conditional,  the  trial  court  can  do 
nothing  until  the  condition  is  performed, 
which  is  the  payment  of  \  he  compensation 
or  damages  awarded.  On  payment,  thr 
judgment  will  ripen  into  a  legal  condemna- 
tion. A  reasonable  time  will  be  alh  wed  for 
th?  performance  of  the  condition.  Chicago 
&*N.  W.  R.  Co.  V.  Chicago,  148  ///.  141,  35 
N.  E.  Rep.  881. 

The  judgment  of  condemnation  of  land 
for  the  extension  of  a  street,  after  being 
affirmed  on  appeal  or  writ  of  error,  cannot 
be  opened  for  the  purpose  of  showing  that 
a  greater  compensation  should  have  been 
allowed  than  that  which  was  adjudged  to  be 
just  and  sufficient.  Chicago  &»N.  W.R.Co. 
V.  Chicago,  148  ///.  141,  35  A^.  E.  Rep.  881. 

Where  a  street  is  extended  across  a  rail- 
way track  or  right  of  way.  the  company  is 
required  to  make  suitable  crossings  and  ap- 
proaches, as  a  matter  of  police  regulation, 
at  its  own  expense;  and  the  cost  and  ex- 
pense of  making  safeguards  against  acci- 
dents and  injury  to  persons  passing  over 
street  crossings  are  not  elements  of  damage 
or  compensation.  Lake  Shore  &*  M.  S,  R. 
Co.  V.  Chicago,  148  ///.  509,  37  N.  E.  Rep.  88. 
—Approving  Chicago  &  N.  W.  R.  Co.  v. 
Chicago,  140  III.  309. 

Burdens  imposed  upon  a  railway  com- 
pany by  the  extension  of  a  street  across  its 
right  of  way,  which  the  law  imposes  upon  it 
as  a  proper  police  regulation,  do  not  con- 
stitute elements  of  damages  in  a  proceed- 
ing to  condemn  a  crossing.  By  such  exten- 
sion of  a  street  across  the  right  of  way  the 
railway  company  assumes  new  relations  to 
the  public,  and  becomes  obligated  to  adopt 
and  observe  new  measures  for  preserving  the 
public  safety.  Lake  Shore  &»  At.  S.  R,  Co. 
V.  Chicago,  148  ///.  509,  37  N.  E.  Rep.  88. 

It  is  doubtful  whether  a  municipal  corpo- 
ration has  the  power,  by  private  agreement 
with  a  property  owner,  to  fix  the  amount  of 
compensation  to  be  paid,  especially  when 


the  compensation  thus  ascertained  la  to  bt 
raised  by  special  assessments  upon  con- 
tiguous property,  or  the  property  deemed  to 
be  benefited.  Lake  Shore  &»  M.  S.  R.  Co.  v. 
Chicago,  148  in.  509,  37  N.  E.  Rep.  88. 

19.  ludlana.  — The  line  of  an  esub- 
lished  railroad  may  be  referred  to  as  a 
monument  in  the  description  of  the  course 
of  a  proposed  highway.  McDonald  v.  Paytu, 
1 14  Ind.  359,  16  A'.  E.  Rep.  795. 

The  presumption  that  the  line  mentioned 
in  giving  the  course  of  a  proposed  highway 
is  to  be  the  centre  thereof  is  overthrown  if 
the  description  itself  shows  a  contrary  in- 
tent. So,  if  the  line  is  described  as  run- 
ning along  the  north  line  of  a  railroad,  it 
will  be  assumed  that  the  intention  is  that 
the  whole  width  of  the  highway  shall  lie 
north  of  and  adjoining  the  right  of  way,  as 
the  right  of  way  of  a  railroad  company  can- 
not be  appropriated  for  highway  purposes 
without  its  consent.  McDonald  v.  Payne, 
114.  Ind.  359,  16  N.  E.  Rep.  795. 

A  city  has  no  power  to  condemn  real 
estate  belonging  to  a  railroad  company,  in 
actual  use  for  right  of  way  and  for  depot 
purposes,  and  to  appropriate  the  same  to 
the  use  of  the  public  as  a  street,  as  the 
statute  authorizing  cities  to  condemn  and 
take  lands  for  public  use  as  a  street  neither 
in  terms,  nor  by  necessary  implication, 
authorizes  the  taking  of  property  already 
dedicated  to  the  ;public  use.  Valpuraiso  v. 
Chicago  6-  G.  T.  R.  Co.,  42  Am.  &*  i:ng.  R. 
Cat.  685,  123  Ind.  467,  24  A''.  E.  Rep.  249.— 
Approved  in  Seymour  v.  JefTersonville,  M. 
9l  I.  R.  Co.,  126  Ind.  ^(A.— Seymour  v.  Jef- 
fertottville,  M.  &»  I.  R.  Co.,  47  Am.  &»  Eng. 
R.  Cas.  38,  126  Ind.  466.  26  A^  E.  Rep.  188. 
— Approvino  Valparaiso  v.  Chicago  &  G. 
T.  R.  Co.,  123  Ind.  476. 

Where  the  municipal  authorities  have  in> 
stituted  proceedings  to  appropriate  a  strip 
of  ground  occupied  by  a  railroad  track, 
which  strip  is  part  of  a  continuous  railroad, 
an  injunction  proceeding  will  lie  to  prevent 
the  appropriation.  Seymour  v.  Jefferson- 
ville,  M.  &*  I.  R.  Co.,  47  Am.  &»  Eng.  R. 
Cat.  38, 126  Ind.  466,  26  N.  E.  Rep.  188. 

20.  Iowa. —  A  corporation  holding  a 
lease,  perpetual  at  its  option,  has  a  right  to 
be  heard  in  proceedings  to  establish  a  city 
street  over  the  property.  Storm  Lake  v, 
Iowa  Fallt  &>  S.  C.  R.  Co.,  20  Am.  «>  ^i^. 
R.  Cat.  420, 63  Iowa  218. 17  A',  t^.  R*P.  4&9> 

A  railroad  company  existing  under  the 
laws  of  Iowa  is  deemed  a  resident  of  every 


<\ 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  ai-22«.  551 


eounty  through  which  it  operates  its  road, 
and  is  entitled  to  notice  of  the  establish* 
ment  of  a  highway  across  its  right  of  way, 
under  Iowa  Code,  §  936,  providing  that 
notice  shall  be  served  on  each  owner  or  oc- 
cupier of  land  lying  in  a  proposed  highway, 
or  abutting  thereon,  "who  resides  in  the 
county."  Chicago,  Ji.  I.  d-  P.  K.  Co.  v. 
EUakorpt,  78  I<nfa  415,  43  N.  W.  Rep.  277. 
—Distinguishing  State  ex  rel.  v.  Chicago, 
B.  &  Q.  R.  Co.,  68  Iowa  135. 

A  failure  to  give  notice  of  the  establish- 
ment of  a  highway,  as  required  by  Iowa 
Codr;,  §  936,  renders  the  action  in  establish- 
ing the  road  void,  as  notice  will  not  be  pre- 
sumed from  the  mere  fact  of  establishing 
the  highway.  So  held,  where  a  company 
enjoined  the  construction  across  its  tracic 
of  a  highway  which  had  been  located  with- 
out notice  to  the  company.  Chicago,  P.  I, 
6-  P.  R.  Co.  V.  EUithorpt,  78  Iowa  \%'.  \i 
N.  W.  Rfp.  277. 

Failure  to  give  the  notice,  as  required  by 
tiie  above  stututr,  will  render  the  proceed- 
ings void  as  against  a  railroad  company  upon 
whom  notice  should  have  been  served.  Chi- 
cago, R.  I.  &*  P.  R.  Co.  V.  Ellithorpe,  78  Iowa 
415.  43  A^.  W.  Rtp.  277. 

Tlie  statute  authorizing  the  establish- 
ment of  a  highway  upon  notice  by  publi- 
cation is  not  in  conflict  with  the  Constitu- 
tion. State  V.  Chicago,  M.  &*  St.  P.  R.  Co., 
«o  Iowa  586,  46  A'.  W.  Rep.  741. 

A  notice  of  the  establishment  of  a  high- 
way which  complies  with  the  Code,  §  936, 
is  sufficient,  when  authenticated  by  the  sig- 
nature of  the  county  auditor,  without  the 
af1i.xing  of  his  seal.  State  v.  Chicago,  At, 
6-  St.  P.  R.  Co.,  80  Iowa  586,  46  A^  Jf. 
Rep.  74«. 

21.  MasHachiisottH.  —  Under  Mass. 
Gen.  St.  ch.  63,  ^  59,  the  mayor  and  alder- 
men of  cities  or  selectmen  of  towns  have 
no  authority  to  lay  out  a  way  across  any 
portion  of  the  land,  not  exceeding  five  rods 
in  width,  which  has  been  taken  by  a  railroad 
corporation  for  its  railroad,  unless  permis- 
sion has  been  granted  by  the  county  com- 
missioners. Com.  V.  Haverhill,  7  Allen 
(Mass.)  523. 

The  South  Cove  corporation,  incorpo- 
rated by  Mass.  Act  of  1833,  ch.  17,  was 
not  authorized  by  its  charter  to  establish 
public  highways  across  its  land,  without  the 
assent  of  tbe  municipal  authorities,  by  lay- 
ing out  utrf?tn  no'  required  for  convenient 
access  to  the  1  existing  streets  from  ilic  r.:il 


road  stations  authorited  by  that  sutute  to 
be  placed  upon  its  land ;  and  did  not  create 
a  public  street  by  merely  marking  it  on  a 
plan,  and  covenanting  with  owners  of  adja- 
cent land  to  lay  it  out,  over  a  place  which 
was  covered  with  tid::water  until  1850.  At- 
torney-General v.  Ctd  Colony  6-  A'.  R.  Co.,  12 
Allen  (Mass.)  404. 

In  1850  a  company  was  authorized  to  con- 
struct its  road  over  certain  flat  lands  in 
South  Boston,  which  were  then  covered  by 
water.  Subsequently  the  city  was  author- 
ized to  lay  out  streets  over  the  lands  within 
a  certain  time,  but  some  question  was  raised 
as  to  the  validity  of  the  laying  out  of  a  certain 
street;  but  in  1873  the  company  a<^^cepted  a 
statute  authorizing  it  to  take  a  parcel  of  the 
flats  for  extending  its  terminal  facilities. 
I/elJ,  that  whether  the  street  as  originally 
laid  out  was  valid  or  not,  it  was  made  so  by 
the  statute  of  1873,  and  the  company  was 
not  entitled  to  an  injunction  to  restrain  the 
city  from  constructing  a  street  across  its 
track.  New  York  St*  N.  E.  P..  Co,  v,  Boston, 
127  Mass,  229. 

22.  Miuuesota.  —  Under  a  general 
power  to  lay  out  and  open  streets  in  a 
city,  the  city  council  has  no  authority  to 
lay  out  and  open  a  strest  through  depot 
grounds  in  such  a  manner  as  to  destroy,  or 
essentially  impair,  the  value  of  the  com- 
pany's easement  therein,  theretofore  ac- 
quired under  and  in  pursuance  of  an  ex- 
press legislative  grant  for  that  purpose. 
Milwaukee  &*  St.  P.  R.  Co.  v.  Faribault,  23 
Minn.  167,  17  Am.  Ry.  Rep.  4o.~DlSTlN- 
GuiSHED  IN  St.  Paul,  M.  &  M.  R.  Co.  v. 
Minneapolis,  24  Am.  &  Eng.  R.  Cas.  309,  35 
Minn.  141.  Followed  in  St.  Paul  Union 
Depot  Co.  V.  St.  Paul,  30  Minn.  359. 
Quoted  :n  Baltimore  &  O.  R.  Co.  v.  Pitts- 
burg, W.  4  K.  R.  Co.,  10  Am.  &  Eng.  R. 
Cas.  444,  17  W.  Va.  812. 

22u.  Nebraska.  —  It  is  the  true  sense 
and  meaning  of  the  proviso  to  Neb.  Comp. 
St.  ch.  14,  §  69,  subd.  28,  providing  for  five 
householders  to  assess  the  damages  for 
land  taken  for  extension  of  a  street,  that 
before  the  election  of  the  five  disinterested 
householders  therein  provided  for,  an  ordi- 
nance should  be  passed,  approved,  and  pub- 
lished, according  to  law,  prescribing  the 
manner  of  such  election  and  the  compensa- 
tion of  such  householders  as  assessors ;  and 
it  is  not  sufficient  that  such  householders 
be  appointed  in  gross  by  ordinance,  without 
sue!)  niPth'"<{  being  pi  'ascribed.    Union  Pat, 


569 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  28-2S. 


4 


J 


H 


X.  Co.  V.  BurlingloH  6*  M.  R.  R,  Co.,  19  Neb. 
386,  27  A'.  IV.  R*p.  238.— Distinguished 
IN  State  ex  rel.  v.  Grand  Island  &  W.  C.  R. 
Co.,  31  Neb.  209. 

23.  New  Hampshire.  —  A  contract 
binding  a  corporation  having  a  railroad  in 
operation  to  construct  a  side  track  at  a  point 
on  its  railroad  near  the  terminus  of  a  pro- 
posed highway,  within  a  reasonable  time 
after  the  highway  shall  be  constructed,  is 
competent  to  be  received  and  considered  by 
the  commissioners,  in  a  hearing  upon  the 
laying  out  of  the  proposed  highway,  as  evi- 
dence tending  10  show  the  probability  that, 
if  the  proposed  road  be  laid  and  built, 
persons  drawing  lumber  over  it  will  be  fur- 
nished with  railroad  facilities  at  that  point. 
Hayward  v.  Bath,  40  A'.  H.  too. 

24.  New  Jersey.— A  municipal  corpo- 
ration, under  ati  authority  to  condemn  lands 
for  public  streets,  has  no  power  to  lay  a 
street  longitudinally  over  grounds  acquired 
by  a  railroad  company,  under  its  charter,  on 
which  is  laid  a  track  in  use  fur  the  deposit 
and  unloading  of  freight  cars.  New  Jersey 
Southern  Ji.  Co.  v.  Long  Branch  Com'rs,  39 
A'.  /.  L.  28,  14  Am.  By.  Rep.  211. 

Platforms  laid  by  a  railroad  company 
along  its  track,  for  freight  or  passengers, 
are  not  of  such  character,  nor  ordinarily  s\> 
essential  to  the  enjoyment  of  the  franchise 
of  the  company,  that  they  may  not,  in  sub- 
servience to  the  public  necessity,  be  re- 
moved in  laying  a  public  road.  State  {New 
York  &*  L.  B.  R.  Co.,  Pros.)  v.  Drumtnond, 
20  Am.  &*  Eng.  R,  Cas.  13,  46  A^.  /.  L.  644; 
a0irming  ^$  N.  J.  L.  511. 

25.  New  York.— (1)  In  general.— \n 
Injunction  will  lie  to  restrain  highway  com- 
muisioners  from  taking  possession  of 
grounds  necessary  for  use  as  a  railroad 
station,  and  acquired  by  the  company  for 
that  pi  -pose ;  but  where  the  commissioners 
have  a  riglit  to  lay  out  a  highway,  but  have 
failed  to  acquire  jurisdiction  through  irreg- 
ularities in  the  proceedings,  an  injunction 
will  not  lie.  Albany  Northern  R.  Co,  v. 
Brownell,  24  ;V.  Y.  345. 

Under  the  power  given  by  the  charter  of 
Buffalo  (Laws  1870,  ch.  519)  to  take  lands 
for  "canals,  basins,  slips,"  and  other  corpo- 
rate purposes,  the  common  council  insti- 
tuted proceedings  for  the  purpose  of  ac- 
quiring a  strip  of  land  sixty  feet  wide  and 
about  two  miles  long,  through  which  to  ex- 
tend the  M  and  H  Street  Canal.  Portions 
of  the  lands  sought  to  be  taken  for  that 


purpose  had  already  been  acquired  by  vari- 
ous railroad  corporations  for  the  purposes 
of  their  roads.  The  line  of  the  extension 
passed  entirely  through  the  yards  of  one  of 
the  corporations  at  a  point  where  there  were 
numerous  tracks  with  switches  and  turn- 
outs. It  intersected  other  tracks — some  of 
them  the  main  tracks,  others  leading  to 
yards,  freight  depots,  etc.— all  in  constant 
use  and  indispensably  necessary  for  the 
business  of  the  corporations.  By  the  char- 
ter, the  city  acquires  a  fee  to  lands  taken 
under  its  provisions.  No  provision  was 
made  in  the  proceedings  reserving  the  right 
to  the  railroad  corporations  to  bridge  the 
canal,  or  in  any  way  to  use  the  lands  after 
the  city  had  acquired  title.  Held,  that  no 
power  to  take  such  lands  was  given  to  the 
city  by  its  charter,  either  expressly  or  by 
necessary  implication.  In  re  Buffalo,  68 
A^.  Y.  167.— Applied  in  Suburban  Rapid 
Transit  Co.  v.  Mayor,  etc.,  of  N.  Y.,  128  N. 
v.  510.  Distinguished  in  Stranahan  v. 
Sea  View  R.  Co ,  84  N.  Y.  308. 

(2)  In  New  York  city.  —  The  legislature 
has  the  power  to  authorize  a  company  to 
occupy  an  avenue  with  its  tracks,  and  to 
prescribe  the  mode  of  occupation,  and  also 
to  judge  of  the  relative  profits  resulting  to 
the  city  and  t  ie  '^ompany  from  changing 
the  avenue ;  and  its  judgment  is  not  subject 
to  review  by  the  courts.  People  ex  rel,  v. 
Havemeyer,  3  Hun  (N.  Y.)  97,  16  Abb,  Pr. 
219.  4  r.&'C.  365.  47  Ho7"  Pr.  494. 

Where  a  company  purchases  land  within 
the  city,  and  holds  the  fee-simple  title,  it 
may  devote  it  to  any  purpose  to  which  it 
sees  fit,  the  same  as  a  private  individual 
would  use  his  land;  and  therefore  it  may 
be  taken  by  the  city  for  street  purposes, 
without  special  legislative  authority.  In  re 
Alexander  Ave.,  17  A'.  }'.  Supp.  (f_,^,  63 
Hun  630,  mem.,  44  A'.   Y,  S.  R.  546. 

In  such  case,  besides  the  above  general 
authority,  N.  Y.  Act  of  1882,  ch.  410,  known 
as  the  Consol idation  Act,  §  957,  provides  that 
no  street  in  New  York  not  laid  out  before 
May  23,  i873,slian  be  constructed  through  or 
upon  the  depot  or  station  grounds  of  any 
railroad  or  branch  of  the  same,  then  operated 
by  steam  power  within  certain  wards,  unl(>ss 
with  the  consent  of  the  company.  He'd, 
that  this  was  a  clear  recognition  of  the 
right  of  the  city  to  open  streets  through 
depot  or  station  grounds  prior  to  the  date 
fixed.  In  re  Alexander  Ave.,  1 7  N.  V.  Supp. 
933.  63  ^«"«  630,  tnem.,  44  A^.  Y.  S.  R.  546. 


i 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  96-98. 


668 


i 


By  N.  Y.  Act  of  1874,  ch.  604.  |  i,  the 
park  commissioners  of  the  city  have  the 
exclusive  power  to  lay  out,  survey,  and 
monument  streets,  roads,  avenues,  public 
squares,  and  lands  belonging  to  the  state. 
Held,  that  such  commissioners  had  a  right 
to  condemn  land  under  water  along  the 
Hariom  river,  belonging  to  the  state,  for 
street  purposes.  In  rt  AUxandtr  Avi.,  17 
A^.  Y,  Supp.  933,  63  Huh  630,  mtm.,  44  N, 
r.  S.  X.  546. 

In  such  case  a  railroad  company  urged 
that  the  commissioners  had  awarded  noth> 
ing  for  certain  bulkheads  which  it  had 
erected  along  the  river ;  but  it  appeared  that 
an  award  was  made  for  all  the  land  which 
was  taken.  HeM,  that,  as  the  bulkheads 
were  mere  appurtenances  to  the  land,  and, 
as  such,  gave  value  to  it,  allowing  damages 
for  taking  the  land  would  be  deemed  as  in- 
eluding  the  bulkheads.  In  re  Alexander 
Ave.,  17  N.  y.  Supp.  933, 63  Hun  630,  mem., 
44  N.  Y.  S.  R.  546. 

By  the  Consolidation  Act  streets  are 
divided  into  three  classes,  the  first  includ- 
ing those  for  the  convenience  of  the  general 
public,  either  as  a  route  of  travel  or  for 
drainage.  Held,  that  streets  of  this  class 
may  be  opened  whenever  the  interests  of 
the  public  may  demand  it;  and  it  is  only 
the  second  and  third  classes  which,  under 
section  990,  can  only  be  opened  by  the 
approval  of  a  majority  of  the  persons  in« 
terested.  In  re  Alexander  Ave.,  17  N.  Y. 
Supp.  933,  63  Hun  630,  mem.,  s^  N.  Y  S. 
K.  546. 

20.  Ohio. — Cities  and  incorporated  vil- 
lages, in  the  exercise  of  the  power  to  lay 
off  and  establish  streets,  and  to  enter  upon 
and  take  land  fur  that  purpose,  conferred 
by  the  general  act  of  May  3,  1853  (jo  Ohio 
L.  223),  are  authorized  to  lay  streets  across 
land  which  is  the  subject  of  the  franchise 
of  a  railroad  corporation,  provided  the 
second  use  for  which  the  land  is  so  taken 
is,  in  the  circumstances  of  the  particular 
case,  reasonably  consistent  with  the  former 
use.  The  land  may,  in  such  case,  be  sub- 
JL'cted  to  the  additional  use,  but  the  former 
use  may  not  thereby  be  defeated.  Little 
Miami  <S-  C.  d-  X.  R.  Co.  v.  Dayton.  23 
Ohio  St.  s;o.— Distinguished  in  Western 
Union  T»l.  Co.  v.  Rich.  19  Kan.  517. 

97.  Oregon*— The  common  council  of 
the  city  of  Portland,  in  appropriating  prop- 
erty for  the  purpose  of  laying  out  and  estab- 
lishing street*  and  alleys,  is   an    inferior 


tribunal,  and  must  comply  itrictly  with 
every  prerequisite  of  the  sututes;  and  un- 
less it  does  so,  its  acts  are  void.  Ntrthtm 
Pae.  Terminal  Co,  v.  Portland,  14  Oreg.  34, 
13  Pac.  Rep.  705. 

Under  a  statute  providing  that  in  such 
case  "the  council  shall  appoint  three  dis- 
interested freeholders  of  the  city,  no  kin  to 
any  owner  or  person  interested  in  any 
property  to  be  appropriated,  posseuing  the 
qualifications  of  jurors  of  the  circuit  court 
of  the  county  of  Multnomah,  to  view  such 
proposed  streets,"  a  finding  by  the  council 
that  the  viewers  "are  freeholders  within 
the  state  of  Oregon,"  and  "  disinterested  in 
the  property  proposed  to  be  appropriated," 
is  insufficient.  Northern  Pae.  Terminal  Co. 
V.  Portland,  14  Oreg.  24.  13  Pac.  Rep.  705. 

28.  Pennss'Ivauia.  —  It  is  essentially 
requisite  to  the  validity  of  proceedings  had 
in  the  quarter  sessions  for  the  laying  out  of 
a  road  that  the  record  should  show  (hat 
notice  was  duly  served  on  the  ownsrs 
through  whose  land  the  road  is  laid  out, 
and  that  either  releases  had  been  obtained 
from  them  or  the  damages  sustained,  if  any, 
asceruined.  And,  if  a  landowner  in  such 
case  be  a  corporation,  it  must  appear  of 
record  that  notice  was  served  in  the  mode 
provided  by  statute.  Appeal  of  Central  R. 
Co.,  103  Pa.  St.  38. 

In  laying  out  a  public  road  across  a  rail- 
road, at  grade,  it  is  not  necessary  that  either 
the  petition  or  the  report  of  viewers  should 
state  or  show  the  necessity  of  such  cross- 
ing. In  re  Road  in  Sterrett  Tp.,  114  Pa. 
St.  drj,  7  Atl.  Rep.  765. 

The  laying  out  of  a  public  road  across  a 
railroad  at  grade  of  the  tracks  is  not  illegal 
per  se.  The  subject  of  grade  crossing  is 
one  '.at  appeals  strongly  to  the  sound  dis- 
cretion of  the  court  of  quarter  sessions.  In 
re  Road  in  Sterrett  7>>..  114  Pa.  St.  627,  7 
Atl.  Rep.  765. 

Where  both  viewers  and  reviewers  have 
found  a  proposed  road  to  be  practicable  and 
necessary  for  the  public  convenience,  an  ex- 
ception that  they  have  not  passed  upon  a 
contingent  liability  to  a  company,  arising 
out  of  the  cost  of  substituting  a  culvert 
through  an  embankment  instead  of  a  trestle, 
will  not  be  sustained.  Kingston  Tp.  Road, 
134  Pa.  St.  409,  19  Atl.  Rep.  750. 

Where  an  act  relating  to  the  location  and 
opening  of  streets  provides  that  darnages 
are  to  be  assessed  only  upon  the  application 
of  the  owner,  and  he  is  liable  to  be  barred 


5M         STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  a»-81. 


• 


If  h*  does  not  apply,  the  owner  it  entitled 
to  the  notice  provided  by  the  act.  with  all 
the  accompanimenta  of  time  and  circum* 
iUncet  that  the  aUtute  prescribea  in  hit 
favor.  Verona  v.  Alligheny  VaUty  R.  Co., 
I  S3  Pa.  St.  368,  3$  Ail.  Rtp.  S18. 

Where  a  public  road  hat  been  opened  and 
laid  out  by  a  company,  under  tlie  Railroad 
Act  of  1849.  the  reveraal  of  proceeding!  in 
the  quarter  tettiont,  relative  to  tlie  road, 
taken  under  the  act  of  1836,  will  not  necet- 
aarily  diaturb  it.  Appiety  Manor  Road,  1 
Grant's  Cas.  (Pa.)  443. 

ao.  Rhode  Idluiid.— Under  R.  I.  Gen. 
St.  ch.  S9,  §S  1-7,  a  town  council,  in  lit 
order  declaring  a  highway  neceaaary,  and 
appointing  a  committee  to  lay  it  out,  need 
not  specify  the  width  of  the  proposed  high- 
way. The  width  must  be  specified  when 
driftways  are  laid  out,  or  existing  highways 
widened,  or  highways  declared  such  after 
twenty  years'  use.  So  htld,  where  a  rail- 
road company  moved  to  quash  the  proceed- 
ingt  because  the  width  of  the  highway  was 
not  designated.  Boston  &•  P.  R.  Corp.  v. 
Lincoln,  13  /?.  /.  70$. 

80.  Waahlnvton.— Under  the  Consti- 
tution and  lawt  of  thit  ttate  citiet  of  the 
firtt  class  have,  at  againtt  private  partiet, 
the  abaolute  right  to  extend  their  ttreett 
over  and  across  the  tidelandt  lying  within 
their  corporate  limits,  subject  only  to  the 
rights  of  navigation  in  the  waters  covering 
such  tidelands.  Columbia  &»  P.  S.  R.  Co. 
V.  Seattle,  6  tVask.  333, 33  Pat.  Rep.  834.  34 
Pac.  Rep.  735. 

Where  a  city,  by  an  ordinance  regularly 
patted,  recognixes  the  existence  of  a  street 
over  a  certain  portion  of  tideland,  and  pro- 
vides for  the  widening  and  extension  thereof, 
and  the  city,  by  its  proceedings,  is  estopped 
to  deny  tlia«.  such  location  is  a  street,  such 
locution  must  be  held  to  be  a  street  as  to 
the  public  generally,  and  no  private  person 
can  question  the  city's  right  to  establish  it. 
Columbia  ^  P.  S.  R.Co.  v.  Seattle,  6  Wash. 
333.  33  Pac.  Rep.  834,  34 /»«<■.  Rtp.  m- 

The  act  authorizing  a  city  of  the  firtt  clatt 
(Lawt  1889-90,  p.  333,  I  $,  tubd.  37)  "to 
project  or  extend  its  ttreett  over  and  acrott 
any  tidelands  within  its  corporate  limitt, 
and  along  or  acrott  the  harbor  areas  of  such 
city,"  does  not  empower  such  city  to  lay  out 
over  the  tidelands  of  the  tute  a  ttreet 
which  it  not  an  eztenaion  of  any  of  the  ex- 
itting  ttreett  of  the  city.  Seattle  &*  Af.  R. 
Co.  V.  State,  7  Watk.  iso,  34  Pac.  Rep.  $51. 


3.  Vacating  and  Discontinuing. 
Abandonment. 

81.  In  general. —  The  vacating  of  a 
public  ttreet  not  adjoining  or  contiguous  to 
a  particular  lot  can  in  no  sense  be  construed 
at  either  taking  or  damaging  private  pro|}- 
erty  for  public  use,  within  the  meaning  of 
those  terms  in  the  Constitution.  Nor  will 
the  grant  of  the  use  of  the  ground  over 
which  the  street  was  laid,  to  a  railway  com- 
pany, for  the  use  of  its  road,  render  the  city 
liable  for  damages  to  the  owner  of  such  lot. 
East  St.  Louis  v.  O'Flynn,  1 19///.  300, 10  N. 
E.  Rep  39$. 

The  legality  of  proceedings  discontinuing 
a  portion  of  a  street  and  tliercby  changing 
the  course  of  travel  is  not  HlTcctcd  by  the 
fact  that  a  railroad  company,  across  whose 
track  the  street  lay,  was  authorized  by  the 
city  council  to  erect  a  stone  wall  along  the 
west  line  of  its  land  at  the  end  of  the  street, 
with  stone  steps  for  the  use  and  convenience 
of  foot  passengers,  thereby  saving  the  city 
from  any  burden  on  account  of  such  dis- 
continuance. Pillsbury  v.  Mayor,  etc.,  of 
Ai^uUa,  79  Me.  71,  8  Atl.  Rep.  150. 

The  construction  and  near  completion  of 
a  railroad  are  a  change  of  circumstances 
proper  to  be  reported  by  the  road  commis- 
sioners at  a  reason  for  discontinuing  a  high- 
way not  open  for « ■  avel ;  and  it  is  no  valid 
exception  to  the  decree  of  the  court  of 
common  pleas,  discontinuing  such  highway 
accordingly,  that  they  rejected  evidence 
that  the  board  of  road  commissioners  who 
laid  the  road  regarded  the  laymg  out  and 
construction  of  the  railroad  as  an  event 
certain  to  happen  in  a  few  years.  Bethle- 
hem's Petition,  30  N.H.  210. 

Pennsylvania  Act  of  April  15,  186';,  au- 
thorixing  the  municipal  authorities  oi  the 
city  of  Pittsburgh  to  vacate  streets  and 
alleys  in  the  city,  did  not  warrant  the  pas- 
sage of  an  ordinance  authorizing  a  company 
to  build  a  thort  elevated  railroad  over  a 
highway.  McAboy's  Appeal,  107  Pa.  St.  $48. 
—  FoLLOWiNO  Western  Pa.  R.  Co.'s  Ap- 
peal, 99  Pa.  St.  155. 

The  authority  of  Pennsylvania  Act  of 
Aug.  5,  1871,  providing  for  the  erection  of 
public  buildings  in  the  city  of  Philadelphia, 
and  authorizing  the  commissioners  to  vacate 
so  much  of  Market  street  "  as  they  may 
deem  needful,"  does  not  authorize  them  to 
obstruct  a  railroad  on  the  street;  neither 
have  the  commitiioners  the  right  to  author- 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  8]l-«5. 


SM 


lie  the  company  to  change  iti  course.  IVtst 
PAi/a.  Pass.  Jt.  Co.  v.  Ptrkins,  lo  Phila. 
{Pa.)  20. 

Where  a  railroad  company  it  authorized 
to  occupy  a  highway,  but  required  to  sub- 
stitute a  new  way,  the  company  must  pro- 
ceed according  to  the  statute,  otherwise  the 
old  road  will  not  be  deemed  discontinued 
in  the  absence  of  proof  of  abandonment  by 
the  authorities,  or  of  nonuser.  Barbtr  v. 
Esux,  37  Vt,  63. 

Where  the  common  council  of  a  city  is 
authorized  to  vacate  or  discontinue  streets  it 
must  proceed,  if  the  charter  does  not  other- 
wise provide,  in  the  manner  prescribed  by 
Wis.  Rev.  St.  §  904.  Jamts  v.  Darlington, 
71  Wis.  173.  36  A^.  W,  Ktp.  834. 

32.  Nonuser  im  evidence  of  dig- 
continuance  or  abandounient.— Non- 
user  of  a  highway  by  the  public  for  many 
years  is  prima  foci*  evidence  of  abandon- 
ment; but  the  abandonment  must  be  vol- 
untary and  intentional.  Hartford  v.  Ntw 
York&»  N.  E.  h\  Co.,  $9  Conn.  350,  33  Atl. 
Rtp.  37.— Quoting  Beardslee  v.  French,  7 
Conn.  135. 

A  highway  can  be  partially  discontinued 
by  nonuser,  and  stands,  as  against  long 
adverse  possession,  no  better  than  any  other 
property;  and  a  highway  by  user  only  is 
measured,  as  to  its  width,  by  such  use. 
SoMtId,  where  a  highway  through  plaintiff's 
farm  was  less  than  four  rods  wide  as  used, 
the  remainder  of  the  land  within  that  limit 
never  having  been  opened  to  the  public,  but 
having  been  fenced  and  cultivated  by  the 
landowner  for  thirty  years  as  his  private 
property.  Coltman  v.  Flint  &*  P.  M.  K. 
Co.,  39  Am.  &*  Eng,  R.  Cas,  347.  64  Mieh. 
160,  31  N.  IV.  Rtp.  47. 

An  unrecorded  road,  laid  out  and  con- 
structed by  a  township,  and  actually  used 
for  eight  years,  becomes  a  public  highway, 
under  How.  Mich.  St.  §  1315,  and  in  the 
absence  of  any  proceedings  to  discontinue 
it,  its  nonuser  for  two  years  will  not  enti- 
tle a  railroad  company  to  exclude  the  public 
by  fencing  In  its  right  of  way  at  that  point. 
MtNamara  v.  Minneapolis,  St.  P.  «J*  S.  St. 
M.  R.  Co.,  95  Mick.  54$.  SS  A^-  W.  Rep.  440. 

33.  Bclnatatoniont  ufter  dixcon- 
tlnuauce.— A  highway  was  opened  iit  1731 
and  continued  until  1873,  when  the  town 
voted  to  change  its  location  at  a  certain 
place  where  a  railroad  crossed  it, except  that 
the  persons  living  on  it  might  improve  it 
and  keep  it  open  as  a  private  way.    Held, 


that  the  road  being  one  which  the  town  had 
a  right  to  discontinue,  it  could  not  become 
a  highway  by  prescription  until  the  lapse  of 
twenty  years  after  the  passage  of  the  vote 
to  discontinue;  it  was  therefore  not  "a 
townway,  highway,  or  traveled  place,"  within 
the  meaning  of  Mass.  Pub.  St.  ch.  113,8  ^^1% 
though  the  crossing  was  planked  and  had 
the  usual  signs.  Coaklty  v.  Boston  &»  M.  R, 
Co.,  159  Mass.  33,  33  A'.  E.  Rep.  930. 

A  road  is  not  "  a  traveled  place  "  within 
the  meaning  of  the  above  statute,  unless 
the  selectmen  have  required  the  railroad 
company  in  writing  to  erect  and  maintain 
boards  at  the  crossing,  or  the  county  com- 
missioners have  ordered  the  company  to 
do  so ;  and  the  facts  thut  the  crossing  was 
planked  and  the  signs  erected  over  it  do 
not  in  themselves  show  that  such  request  or 
order  has  been  made.  Coakley  v.  Boston  &* 
M.  R.  Co.,  1 59  Mass.  32,  33  N.  E.  Rep.  930. 

34.  Iteview  of  dlMCuntl nuance  on 
certiorari.  —  The  owner  of  land  inter- 
sected by  a  railroad  and  abutting  upon  a 
highway  crossing  the  same,  who  has  no  title 
within  the  railroad  location  and  whose  land 
at  a  point  very  near  the  highway  is  con- 
nected  by  a  private  crossing,  is  not  entitled 
to  maintain  a  petition  for  a  writ  of  certiorari 
to  quash  the  proceedings  of  county  com- 
missioners in  discontinuing  so  much  of  the 
highway  as  crossed  the  location,  although, 
by  reason  of  the  proximity  of  his  house  and 
land  to  the  railroad,  he  has  occasion  to  use 
the  highway  over  the  railroad  of  tenet  than 
that  portion  of  the  public  who  are  farther 
oflf.  Hammond  v.  Worcester  County  Com'rs, 
154  Mass.  509,  28  A^.  E.  Rep.  903.— Follow- 
ing Davis  V.  Hampshire  County  Com'rs, 
153  Mass.  318. 

30.  IteHtraininK  vacation  In  equity. 
— The  legislature  has  plenary  power  over 
streets  and  highways,  and,  as  a  general  rule, 
full  discretion  as  to  opening,  improving, 
and  vacating  the  same.  While  equity  will 
interfere  in  some  cases  at  the  instance  of 
private  real-estate  owners  to  restrain  the 
attempted  vacation  of  a  road  or  street,  yet  it 
will  interfere  only  when  such  owners  have 
a  special  interest  therein,  and  their  prop- 
erty would  be  directly  injured  by  the  vaca- 
tion. Where  the  vacation  of  a  part  of  a 
street  is  attempted,  and  the  owners  of  the 
lots  abutting  thereon  do  not  complain,  the 
owner  of  a  lot  in  another  block,  in  front  of 
whose  lot  the  street  is  in  no  respect  dis- 
tur))ed  or  abridged,  may  not  maintain  an 


w 


S66 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  80, 87. 


I^^^H   ' 


action  to  restrain  the  vacation,  although 
thereby  the  general  course  o(  travel  will 
probably  be  thrown  on  some  other  street 
and  no  longer  pass  in  front  of  said  lot  own- 
er's property.  Htllir  v.  Atchison,  T,  &*  S, 
F.  A'.  Co.,  7  Am.  &*  Eng.  R.  Cas.  636,  28 
Kan.  625.  —  Distinguishing  Franklin 
County  Coni'rs  v.  Lathrop,  9  Kan.  453. 
Quoting  Smith  v.  Boston,  7  Cush.  (Mass.) 
254.— Appro VKD  in  Central  Branch  U.  P. 
R.  Co.  V.  Andrews,  41  Kan.  370.  Quoted 
IN  Ottawa,  O.  C.  St  C.  G.  R.  Co.  v.  Larson, 
40  Kan.  301. 

Equity  will  not  enjoin  a  municipal  corpo- 
ration from  lawfully  vacating  a  public  street. 
Mtrtditk  v.  Sayri,  32  N.  J.  Eg.  557.— DIS- 
TINGUISHING Paterson  &  P.  Horse  R.  Co. 
V.  Mayor,  etc.,  of  Paterson,  24  N.  J.  Eq.  158. 

8<1.  ItovcrHiuii  to  abiittliiK  owners. 
— A  discontinued  street  reverts  to  the  orig- 
inal owner.  Taking  the  adjacent  land  with 
its  "  appurtenances,"  in  eminent  domain, 
docs  not  include  the  street.  Harris  v.  El- 
liott, 10  fit.  (U.  S.)  25.— Distinguished  in 
Clta!:>;>s  v.  Atchison  Union  D.  &  R.  Co., 
4S  Kan.  398.  Reviewed  in  New  Orleans 
Pac.  R.  Co.  V.  Parker,  143  U.  S.  42,  12  Sup. 
Ct.  Rep.  364. 

A  street  dedicated  by  the  filing  of  the 
plat  of  a  congressional  town  site  on  vaca- 
tion reverts  to  the  abutting  owners  in  pro- 
portion to  frontage,  according  to  Kan.  Act 
of  March  13,  1872,  concerning  cities  of  the 
second  class,  and  Gen.  St.  1889,  par.  811. 
Skowalttr  v.  Southtrn  Kan.  R.  Co.,  49  Kan. 
421.  32  Pac.  Rep.  42. 

Where  a  public  highway  is  vacated  and 
abandoned  as  such  by  lawful  authority,  the 
land  included  therein  reverts  to  the  abutting 
proprietors  and  cannot  be  appropriated  by  a 
railroad  company  for  f'sht  of  way  without 
making  compensation  to  such  proprietors. 
Omaha  Southern  R.  Co.  v.  Beeson,  36  Neb. 
361,  54  N.  W.  Rep.  557. 

11.  RIOHT  or  STEAM  BAILX0AD8 
TO  OOOUFT. 

I.  In  General:^ 

37.  Right  to  occupy  streets  and  to 
use  Htoain  power  tlierein.f— The  ^^^\<f. 

*  Right  of  company  to  maintain  tracks  in 
street,  see  notes,  37  Am.  Rep.  324;  31  Am.  St. 
Rki>.  733:  3  L.  R.  A.  59;  7  Am.  &  Eng.  R.  Cas. 
■  s;  14  Id.  104;  38  Id.  410. 

Road  on  street  not  per  u  a  nuisance,  see  note, 
5  L.  R.  A.  37'. 

f  General  obligations  of  railroad  companies  as 
to  highways,  see  note,  20  Am.  &  Eno.  R.  Cas.  58. 


to  the  streets  of  the  city  of  Washington  it 
in  the  United  States,  and  they  cannot  be 
used  for  railroad  purposes  except  by  consent 
of  congress.  Edmonds  v.  Baltimore  &*  P. 
R.  Co.,  20  Am.  &*  Eng.  R.  Cas.  38,  114  U. 
S'  4S3>  S  -^"A  ^*'  ^*P-  1098.— Reviewed  in 
Hopkins  v.  Baltimore  &  P.  R.  Co.,  6 
Mackey  (D.  C.)  311. 

The  whole  of  a  road  as  laid  out  having 
been  dedicated  as  a  highway,  a  railroad  cor> 
poration  has  a  right  to  construct  its  railroad 
therein,  and  may  enjoin  a  grantee,  whose 
land  is  adjacent  to  the  part  of  the  road  not 
actually  used  by  the  public,  from  tearing  up 
its  track.  Southern  Pac,  R.  Co.  v.  Ferris, 
93  Cal.  263.  28  Pac.  Rep.  828. 

The  legislature  may  grant  the  right  to  lay 
railroad  tracks  in  city  streets;  but  if  the 
road  is  constructed  so  as  to  obstruct  the 
street,  or  in  the  running  of  its  trains  abut- 
ting property  owners  are  substantially  in- 
jured, either  from  the  jarring,  or  smoke 
and  dust,  or  otherwise,  they  are  entitled  to 
damages.  South  Carolina  R.  Co.  v.  Steiner, 
44  Ga.  546,  3  Am.  Ry.  Rep.  86. 

Neither  by  express  grant  nor  by  necessary 
implication  has  the  East  Tennessee,  Vir- 
ginia &  Georgia  railway  company  any  au- 
thority to  construct  and  operate  its  railway 
longitudinally  upon  the  public  streets  of  the 
city  of  Macon.  Davis  v.  East  Tenn.,  V.  &» 
G.  R.  Co.,  50  Am.  &*  Eng.  R.  Cas.  137, 87  Ga. 
605,  II  S.  E.  Rep.  567.— Distinguishing 
Wood  V.  Macon  &  B.  R.  Co.,  68  Ga.  539. 
Following  Daly  v.  Georgia  Southern  &  F. 
R.  Co.,  80  Ga.  793. 

Where  the  fee  to  streets  is  in  the  city,  and 
a  company  has  authority  both  from  the  leg- 
islature and  the  city  to  locate  its  tracks 
along  a  street,  the  abutting  property  owners 
cannot  enjoin  the  laying  of  such  tracks,  nor 
recover  damages  for  the  use  of  the  street. 
Moses  V.  Pittsburgh,  Ft.  W.  &»  C.  R.  Co.,  21 
///.  516. 

A  railroad  constructed  under  the  General 
Railroad  Law  may  lawfully  occupy  a  public 
highway  to  the  extent  of  a  reasonable  neces- 
sity. Long  Branch  C»m'rs  v.  West  End  R. 
Co.,  29  /V.  /.  Eq.  566.— Followed  in  Na- 
tional Docks  R.  Co.  V.  Central  R.  Co.,  33 
N.  J.  Eq.  755- 

The  Pennsylvania  railroad  company  does 
not  have  the  riglit,  under  its  charter,  to  oc- 
cupy longitudinally  a  public  road  or  street 
in  a  borough,  for  the  laying  of  its  railway 
tracks.  Pennsylvania  R.  Co.'s  Appeal,  115 
Pa.  St.  514,  s  Atl.  Rep.  872.— Distinguish- 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  38-42. 


557 


INO  Pittiburgh  V.  . 'ennsylvania  R.  Co.,  48 
Pa.  St.  355- 

38.  8uch  line  subordinate  to  use 
by  the  public— Where  a  city  grants  to  a 
company,  not  a  street  or  any  part  of  a 
street,  but  only  tlie  right  to  lay  and  use 
tracks  in  a  street,  the  rights  of  the  public 
in  such  street  will  be  paramount  to  those 
of  the  company  (or  all  other  purposes  than 
that  of  transit;  and  such  right  of  transit 
does  not  imply  that  it  shall  be  enjoyed  in 
the  unlimited  discretion  of  the  company, 
but  only  that  it  shall  be  enjoyed  with  ref- 
erence to  the  co-existing  rights  of  others  in 
the  street,  and  in  subordination  to  the  pub- 
lic welfare.  Chicago,  B.  &*  Q.  A\  Co.  v. 
Quincy,  139  ///.  355,  28  N.  E.  Rtp.  1069. 

in  the  usual  understanding  of  the  term, 
a  highway  is  one  which  is  common  to  all 
people  without  distinction,  and  which  they 
may  travel  over  on  foot  or  horseback  or  in 
carriages.  Uurlington,  A'.  &*  S,  IV.  H.  Co, 
\,  Johnson,  33  //;//.  5^  Eng.  R.  Cas.  215,  38 
Kan.  142,  16  Pac.  Rep.  125. 

The  public  easement  in  a  street  is  the 
public  and  common  right  to  use  the  same 
for  the  passage  of  persons  and  property, 
4nd  for  purposes  incidental  to  such  passage. 
Ntwtll  V.  Minneapolis,  L.  <S-  M.  R.  Co.,  24 
Am.&*  Eng.  R.  Cas.  298,  35  Minn.  112,  27 
N.  \V.  Rep.  839. 

The  right  to  lay  tracks  on  the  surface  of 
a  street  is  sub  modo  ;  that  is,  by  doing  it  so 
as  not  to  impair  or  interfere  with  the  use  of 
the  street.  Whatever  mode  a  company  may 
adopt,  it  is  bound  to  fulfil  this  condition,  and 
if  it  cannot  be  fulfilled  by  laying  the  tracks 
on  the  surface  of  the  street  it  must  adopt 
some  other  plan.  State  v.  St.  Paul,  M.  &* 
Af.  R.  Co..  35  Afinn.  131.  28  JV.  IV.  Rep.  3. 

A  company  whose  track  is  laid  upon  a 
public  street  has  no  exclusive  right  to  use 
such  street  for  the  purpose  of  running  its 
trains  thereon.  Neier  v.  Missouri  Pac.  R. 
Co.,  12  Mo.  App.  35. 

The  purchase  of  the  fee  of  lands  in  a  pub- 
lic street  does  not  authorize  a  company  to 
construct  its  road  upon  it  as  against  the 
public,  without  express  authority  of  law,  or 
as  against  individuals  who  have  the  right 
or  easement  of  passing  over  it.  Attorney- 
General  ex  rel.  v.  Morris  &*  E.  R,  Co.,  19  N. 
J.  Eg.  386 ;  reversed  in  19  N.J.  Eg.  575.— 
Reviewed  in  Dodge  v.  Pennsylvania  R. 
Co.,  43  N.  J.  Eq.  35 1. 

The  first  use  of  a  street  is  for  the  or- 
dinary travel  over  it ;  the  right  of  a  rail- 


road to  operate  its  trains  across  it  is  sub- 
ordinate to  the  use  of  the  general  public. 
Houston  fi-  T.  C.  R,  Co.  v  Carson,  66  Tex, 
345.  I  S.  W.  Rep.  107. 

3.  Under  Legislative  Grants.* 

30.  Alabama.  —  Ala.  Code  of  1876.  § 
1842,  gives  to  a  railroad  no  right  or  license 
to  construct  its  road  through  the  streets 
of  an  incorporated  town.  Columbus  &*  W. 
R.  Co.  V.  Witherow,  82  Ala.  190,  3  So.  Rep.  23. 

40.  Connecticut.  —  A  charter  author- 
izing the  necessary  alteration  of  highways 
in  order  that  the  road  might  be  laid  on  the 
best  site  for  the  purpose,  and  providing 
that  the  company  maintain  all  bridgp'i  con- 
structed by  it  to  conduct  any  highway  over 
the  road,  does  not  authorize  a  change  in 
the  location  of  the  highway  made  for  the 
express  purpose  of  avoiding  altogether  the 
expense  of  constructing  a  bridge.  Norwich 
&*  IV.  R.  Co.  V.  Killing fy,  25  Conn.  402. 

41.  Florida. —  A  grant  to  a  company 
of  the  right  to  construct  its  road  along, 
upon,  or  across,  or  to  use  an  existing  high- 
way, is  not  to  be  construed  as  a  power  to 
destroy  the  highway.  This  is  the  rule  of 
construction,  unless  the  language  of  the 
grant  is  such  as  to  show  unmistakably  an 
intention  to  grant  such  power.  A  grant  of 
the  power  to  cut  through  a  highway  is,  in 
the  absence  of  an  express  provision  to  the 
contrary,  impliedly  attended  by  an  obliga- 
tion to  furnish  to  the  public  a  safe  cross- 
ing. Palatka  &*  I.  R.  R.  Co.  v.  State,  32 
Am.&'  Eng.  R.  Cas.  191,  23  F/a.  546,  11 
Am.  St.  Rep.  395,  3  So.  Rep.  158. 

42.  Ocon^la. — A  company  using  steam 
motors  cannot  lay  its  tracks  longitudinally 
upon  the  streets  of  a  town  or  city  without 
the  sanction  of  the  legislature,  and  this 
sanction  must  appear  by  express  grant  or 
necessary  implication.  Daly  v.  Georgia 
Southern  6-  F.  R.  Co.,  36  Am.  &*  Eng.  R. 
Cas.  20,  80  Ga.  793,  7  S.  E.  Rep.  146. 

Where  a  statute  granting  to  a  company 
part  of  the  public  domain  of  a  city  pro- 
vides, in  effect,  that  the  grant  shall  not  be 
operative  without  the  assent  of  the  munici- 
pal authorities,  and  that  the  terms,  condi- 

•  Power  of  legislature  to  authorize  use  of 
streets  for  railroad  purposes,  see  notes,  4  L.  R. 
A.  632  ;  69  Am.  Dec.  663. 

Hovr  far  legislative  authorization  will  exempt 
from  liability  tu  suit  for  creating  nuisance,  see 
note,  26  Am.  &  Eng.  R.  Cas.  558. 


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tions,  and  limitations  of  the  grant  shall  be 
matter  of  agreement  between  said  authori- 
ties and  the  company,  and  where,  on  appli- 
cation of  the  company  to  the  city  for  its 
consent,  the  municipal  authorities  lay  down 
terms,  conditions,  or  limitations,  and  there 
is  not  some  writing,  executed  by  the  com- 
pany, accepting  or  assenting  to  the  same, 
the  question  of  acceptance  of  the  grant  by 
the  company  is  one  of  fact  for  decision  by  a 
jury.  Mayor;  et  ,o'  Macon  v.  East  Tenn., 
V.  &*  G.  K.  Co.,  .■:..  Am.  &*  Eng.  R.  Cas.  462, 
82  Ga.  501,  9  S.  E,  Ret>.  11 27. 

If  the  company  dif'  c-ept  the  grant  with 
the  limitation  put  o;  ;  the  city  in  giving 

its  consent — namel;  =  r  so  long  as  the  prop- 
erty should  be  used  Ur  nulroad  purposes,  as 
specified  in  the  statute — Ihe  property,  if  not 
appropriated  to  any  of  these  purposes  within 
a  reasonable  time,  would  cease  to  be  affected 
by  the  statute,  and  would  again  be  the  pub- 
lic domain  of  the  city,  just  as  it  was  before ; 
there  being  w^  consideration  for  the  grant 
save  the  local  benefits  which  might  be  ex- 
pected to  result  from  the  use  of  the  prem- 
ises in  the  manner  contemplated.  Mayor, 
etc.,  of  Macon  v.  East  Tenn.,  V,  &*  G,  R.  Co., 
40  Am.  &*  Eng.  R.  Cas.  462,  82  Ga.  501,  9  S. 
E.  Rep.  1 127.— Followed  in  Georgia  R.  & 
B.  Co.  V.  Mayor,  etc. ,  of  Macon,  86  Ga.  585. 

If  the  grant  was  accepted,  but  terminated, 
or  became  subject  to  be  terminated,  by  rea- 
son of  nonuser,  the  proper  party  to  re-enter 
or  bring  suit  for  the  premises  is  not  the 
state,  but  the  city,  whether  the  lin.itation  to 
the  uses  expressed  be  regarded  as  a  special 
limitation  strictly,  or  only  as  a  condition 
subsequent.  Mayor,  etc.,  of  Macon  v.  East 
Tenn.,  V.  &>  G.  R.  Co.,  40  Am.  6-  Eng.  R. 
Cas.  462,  82  Ga.  501,  9  S.  E.  Rep.  1127. 

43.  Illinois.  —  Where  the  legislature 
authorizes  a  company  to  construct  its  road 
across  the  public  grounds  and  streets  of  an 
incorporated  town,  and  the  directors  do  so 
construct  it,  they  are  public  agents  in  so 
doing,  and  such  location  is  the  act  of  the 
state,  and  within  the  legislative  authority, 
unless  such  location  is  inconsistent  with  the 
use  to  which  such  grounds  had  been  previ- 
ously applied  by  the  legislature.  Chicago, 
R.  I.  &*  P.  R.  Co.  v.Joliet,  79  ///.  2$. 

The  legislature,  in  creating  a  new  county, 
provided  that  the  county  seat  should  be 
located  in  an  incorporated  town,  and  that 
the  public  buildings  of  said  county  should 
be  erected  on  certain  "  public  grounds." 
Httd,  that  there  was  nothing  in  the  use  to 


which  public  ground  was  thus  directed  by 
the  legislature  from  which  the  power  of  the 
legislature  to  locate  a  railroad  over  the  same 
grounds  should  be  denied.  Chicago,  R.  I. 
&-  P.  R.  Co.  v.Joliet.  79  III.  25. 

A  company  organized  under  the  general 
law  of  March  i,  1872,  has  authority  to  select 
its  own  route,  to  lay  out  its  road,  and  to 
construct  the  same;  and  this  power,  by 
necessary  implication,  carries  with  it  the 
power  of  fixing  the  terminal  points  of  the 
proposed  road,  subject  only  to  the  limitation 
that  the  construction  of  its  road  upon  or 
across  any  street  in  any  city  must  be  with 
the  assent  of  the  corporation  of  such  city. 
Chicago  &*  W.  I.  R.  Co.  v.  Dunbar,  5  Am.  &>• 
Eng.  R.  Cas.  253,  100  ///.  no. — Quoted  in 
Colorado  Eastern  R.  Co.  v.  Union  Pac.  R. 
Co.,  44  Am.  &  Eng.  R.Cas.  10,  41  Fed. 
Rep.  293. 

The  lines  selected  may,  without  the  assent 
of  the  city,  cross  streets,  and  the  company 
may,  without  such  assent,  acquire  the  right 
of  way  and  construct  its  road  on  every  part 
of  such  line,  except  the  parts  to  be  con- 
structed upon  or  across  streets.  Chicago  &* 
W.  I.  R.  Co.  v.  Dunbar,  5  Am.  &*  Eng.  R. 
Cas.  253,  100  III.  no. 

It  is  not  necessary,  as  a  condition  prece- 
dent to  the  location  of  its  line  within  a  city 
by  a  railroad  company,  or  to  the  construc- 
tion of  its  railroad  within  the  city,  or  such 
parts  of  its  lines  as  are  not  within  any  street, 
or  to  the  power  to  condemn  any  private 
property  within  the  city  for  such  purpose, 
that  an  ordinance  should  be  passed  by  the 
city  council  either  giving  assent  for  the  con- 
struction of  the  road  upon  or  across  streets, 
or  providing  for  the  location  of  the  road. 
Chicago  &»  W.  I.  R.  Co.  v.  Dunbar,  5  Am. 
&•  Eng.  R.  Cas.  233,  100  ///.  1 10. 

A  city  ordinance  granting  permission  to  a 
company  to  construct  and  operate  a  railroad 
within  the  city  limits  is  not  void  because  it 
fails  to  designate  the  precise  line  upon 
which  tae  road  may  be  constructed,  and 
omits  to  designate  the  precise  points  at 
which  the  road  may  be  constructed  across 
and  upon  the  several  streets  to  be  inter- 
sected by  it.  Chicago  &*  W.  I.  R.  Co.  v.  Dun- 
bar, 5  Am.  &*  Eng.  R.  Cas.  253,  100  ///.  no. 

Permission  granted  by  a  city  council  to  a 
company  to  construct  its  road  across  streets 
at  any  points  to  be  selected  by  the  company 
within  a  given  district  is  not  a  delegation 
to  the  company  of  powers  which  can  only 
be  exercised  by  the  council,  as  the  power  to 


^:\ 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  44, 45. 


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locate  the  line  of  the  road  is  given  by  stat- 
ute to  the  railroad  company  alone,  and  not 
to  the  city  authorities.  The  city  of  Chicago 
has  power  to  make  provision  for  the  location 
of  a  railroad  within  its  limits,  but  no  power 
to  locate.  That  power  is  in  the  company, 
subject  to  such  provisions  for  the  location 
as  the  city  council  may  make.  Chicago  &* 
IV.  I.  R.  Co.  V.  Dunbar,  5  Am.  &*  Eng.  R. 
Cas.  253,  100  ///.  no. 

Under  the  general  law  relating  to  rail- 
roads, it  is  only  necessary  to  procure  the 
assent  of  the  municipal  authorities  of  a  city 
to  authorize  a  railroad  company  to  construct 
its  track  or  tracks  over  or  along  a  public 
street  therein.  That  act,  as  revised  in  1874, 
docs  not  require  the  assent  of  the  abutting 
lot  owners,  and  in  the  absence  of  any  special 
statutory  provision  requiring  such  assent  it 
will  not  be  necessary.  Wiggins  Ferry  Co. 
v.  East  St.  Louis  Union  R.  Co.,  20  Am.  &* 
Eng.  R.  Cas.  9,  107  ///.  450. 

In  cities,  towns,  or  villages  organized 
under  the  General  Incorporation  Law,  which 
requires  such  assent,  or  under  special  char- 
ters containing  a  similar  provision  to  that  in 
the  general  law,  this  rule  does  not  apply,  and 
the  assent  of  the  requisite  number  of  the 
abutting  property  owners  will  be  required,  as 
well  as  that  of  the  municipality.  W^gins 
Ferry  Co.  v.  East  St.  Louis  Union  R.  Co.,  20 
Am.  &•  Eng.  R.  Cas.  9,  107  ///.  450. 

Were  it  a  matter  of  doubt  whether  acorn* 
pany  may,  under  its  charter,  lay  it;  track 
within  the  limits  of  a  city,  an  act  of  t\.  •  leg- 
islature confirming  an  ordinance  of  tb.;  city 
giving  the  company  permission  to  lay  its 
railway  track  in  certain  streets,  and  declar- 
ing that  tlie  ordinance  shall  be  held  to  con- 
fer on  the  company  power  and  authority  to 
construct  and  operate  its  road  in  the  streets 
and  over  the  bridge  mentioned  therein,  until 
the  same  shall  be  altered,  changed,  or 
amended  by  the  common  council,  with  the 
assent  of  the  company,  will  remove  the 
doubt  and  be  regarded  as  a  recognition  of 
the  right.  McCartney  v.  Chicago  &*  E.  R. 
Co.,  29  Am.  &*  Eng.  R,  Cas.  326, 112  ///.  61 1. 

Authority  in  a  railway  charter  to  construct 
a  raih'oad  from  a  designated  point  to  and 
into  a  city,  with  the  general  power  to  cross 
any  road  or  highway  on  the  route,  is  to  be 
held  only  as  giving  such  power  outside  of 
the  corporate  limits  of  the  city.  By  no  fair 
intendment  can  it  be  held  as  a  grant  of  the 
use  of  the  streets  of  the  city  for  tracks  of 
the  road.    Chicago,  D.  &*  V.  R.  Co.  v.  Cht. 


cago,  121  ///.  176,  II  N.  E.  Rep.  907,  9  West. 
Rep.  493 ;  affirming  20  ///.  App.  665. 

Before  a  company  can  construct  its  tracks 
in  or  through  an  incorporated  city,  upon  or 
across  streets,  it  must  first  obtain  the  con- 
sent of  the  common  council  of  such  city, 
acting  in  a  legal  manner.  Hickey  v.  Chicago 
&*  W.  L  R.  Co.,  6  III.  App.  172. 

Inasmuch  as  the  General  Railroad  Act  of 
Illinois  contains  no  provision  as  to  how  such 
consent  may  be  obtained,  the  action  of  the 
city  council  must  be  governed  by  the  pro- 
visions of  the  general  statute  relating  to  the 
incorporation  of  cities  and  villages.  Hickey 
V.  Chicago  &•  W.  I.  R.  Co.,  6  ///.  App.  172. 

The  statute  requires  a  petition  by  the 
owners  of  the  land  representing  more  than 
one  half  of  the  frontage  of  the  street,  or  so 
much  thereof  as  is  sought  to  be  used  for 
railroad  purposes ;  and  compliance  with  this 
provision  is  a  condition  precedent  to  valid 
consent  by  the  city.  Hickey  v.  Chicago  &* 
W.  I.  R.  Co.,  6  ///.  App.  172. 

44,  Iowa.  —  The  act  of  1853,  p.  58,  §  8, 
providing  that  any  railroad  corporation  may 
lower  or  raise  any  turnpike,  plank  road,  or 
other  way  for  the  purpose  of  having  its  rail- 
road pass  under  or  over  the  same,  confers 
the  right  not  only  to  cross  a  highway  at 
grade,  but  to  run  lengthwise  upon  it.  Mil' 
burn  V.  Cedar  Rapids,  12  Iowa  246.— Fol- 
lowed IN  Hughes  V.  Mississippi  &  M.  R. 
Co..  12  Iowa  261. 

The  provision  of  the  Code  with  reference 
to  the  rights  of  a  railroad  company  over  the 
streets  of  cities  and  incorporated  towns  does 
not  apply  to  actions  commenced  prior  to  the 
time  when  it  took  effect.  Ittgram  v.  Chicago, 
D.  6-  M.  R.  Co.,  38  Iowa  669. 

The  power  granted  to  railway  companies 
by  section  1262  of  the  Code,  to  occupy  the 
streets  of  cities  with  their  tracks,  is,  by  im- 
plication, withdrawn  by  the  amendment  con- 
tained in  Laws  of  1874,  ch.  47.  Stanley  v. 
Davenport,  54  Iowa  463,  2  A''.  W.  Rep.  1064, 
6N.  W.Rep.l<A. 

45.  Louisiana.  —  The  state  has  the 
power  to  grant  to  a  company  a  right  of  way 
through  a  street  in  the  city  of  New  Orleans. 
New  Orleans,  M.  &*  C.  R.  Co.  v.  New  Or- 
leans, 26  La.  Ann.  517. 

The  legislature  has  power  to  authorize 
the  building  of  a  steam  railroad  on  a  city 
street,  the  fee  of  which  is  in  the  public,  and 
may  directly  exercise  this  power  or  devolve 
it  upon  the  local  or  municipal  authorities. 
Harrison  v.  New  Orleans  Pac.  R,  Co.,  34 


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STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  46-50. 


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La.  Ann.  462,  44  Am.  Rep.  438.— Quoting 
Williams  v.  New  York  C.  R.  Co.,  18  Barb. 
(N.  Y.)  222. 

Provided  the  road  be  so  constructed  as 
not  to  exclude  the  public  from  any  part  of 
the  street.  Werges  v.  St.  Louis,  C.  &•  N.  O. 
R.  Co.,  35  La.  Ann.  641.— Followed  in 
New  Orleans,  F.  J.  &  G.  I.  R.  Co.w.  Barton, 
43  La.  Ann.  171. 

46.  Maine.— Under  the  act  of  1853,  ch. 
41,  §  3,  providing  that  railroads  shall  not  be 
carried  along  any  existing  highway,  but 
"  must  cross  it  in  the  line  of  the  railway,"  a 
corporation  cannot  extend  a  curve  in  a 
branch  track  partly  over  or  along  a  high- 
way, but  without  crossing  it  Bangor,  O. 
6-  M.  R.  Co.  V.  Stnith,  47  Me.  34. 

47.  Maryland.— Authority  by  the  leg- 
islature to  tunnel  the  streets  of  a  city  may  be 
granted  by  implication.  Baltimore  &*  P. 
R.  Co.  V.  Reaney,  42  Md,  117. 

Where  the  legislature  has  the  right  to 
authorize  a  company  to  construct  a  horse 
railroad  on  the  streets  of  a  city,  but  not  a 
steam  railroad,  an  act  will  not  be  declared 
void  which  is  broad  enough  in  its  terms  to 
authorize  a  steam  railroad,  but  where  the 
company  builds  a  horse  railroad  only,  and 
renounces  all  intention  to  build  any  other. 
Hiss  V.  Baltimore  &*  H.  Pass.  R.  Co.,  4  Am. 
&»  Eng.  R.  Cos.  201,  52  Md.  242,  36  Am. 
Rep.  371. 

The  act  of  1882,  ch.  47,  authorizing  a 
company,  incorporated  under  the  act  of 
1876,  ch.  242,  to  construct  and  operate  pas- 
senger railways  upon  certain  streets  in  the 
city  of  Baltimore,  being  a  valid  act,  the  use 
of  Park  avenue  for  that  purpose  is  not  such 
an  invasion  of  the  rights  of  the  owners  of 
property  abutting  on  said  avenue  as  to 
entitle  them  to  enjoin  such  proceeding. 
Hodges  V.  Baltimore  Union  Pass.  R.  Co.,  10 
Am.  &>  Eng.  R.  Cas.  270,  58  Md.  603. 

48.  Massaciiusetts.— The  provisions  of 
the  Pub.  St.  ch.  112,  §  169,  which  relate  to  the 
use  of  the  streets  and  highways  by  ordinary 
steam  railroads  at  crossings,  and  of  section 
224,  which  relates  to  railroads  for  private 
use,  have  no  application  to  a  corporation 
which  is  using  the  streets  under  a  special 
charter.  Howard  v.  Union  Freight  R.  Co., 
1 56  Mass.  1 59,  30  N.  E.  Rep.  479. 

49.  Minnesota. — The  use  of  streets  for 
a  railroad  track  is  not  such  use  as  a  dedica- 
tion for  streets  or  landings  or  as  the  statute 
contemplates,  and  the  right  so  to  use  the 
lands  cannot  be  given  by  legislative  act. 


Schurmeier  v.  St.  Paul  &•  P.  R.  Co.,  10 
Minn,  82  (Gil.  59).  —  FOLLOWED  IN  St. 
Paul,  S.  &  T.  F.  R.  Co.  v.  First  Div.  St.  P. 
&  P.  R.  Co.,  26  Minn.  31. 

Under  the  statutes  the  right  of  a  company 
to  lay  its  tracks  on  or  across  a  street  is  not 
absolute,  but  is  subject  to  the  condition  that 
it  be  done  so  as  not  seriously  or  substan- 
tially to  impair  or  interfere  with  the  use  of 
the  street.  The  grant  is  subject  to  the  duty 
to  put  the  street  in  such  condition  as  to 
furnish  to  the  public  a  thoroughfare  sub- 
stantially as  capable  of  safe  and  convenient 
use  as  before.  (Gilfillan,  C.J.,  dissenting.) 
State  ex  rel.  v.  St.  Paul,  M.  S-  M.  R.  Co.,  35 
Minn.  131,  28  N.  W.Rep.  3.— DISTINGUISH- 
ING State  V.  New  Haven  &  N.  Co.,  45  Conn. 
331.— Distinguished  in  Kansas  v.  Kansas 
City  Belt  R.  Co.,  102  Mo.  633.  Followed 
in  State  ex  rel.  v.  Minneapolis  &  St.  L.  R. 
Co.,  39  Minn.  219,  39  N.  W.  Rep.  133. 

And  this  duty  is  a  continuing  one.  It  is 
not  fulfilled  by  putting  the  street,  at  the 
time  of  building  the  railroad,  in  such  con- 
dition as  not  to  impair  or  interfere  with  its 
use  at  that  time,  nor  by  maintaining  it  in 
such  condition  as  would  have  accomplished 
that  end  had  the  state  of  things  originally 
existing  continued.  The  duty  has  reference 
to  future  exigencies,  and  requires  the  railroad 
company,  from  time  to  time,  to  put  the 
street  in  such  condition  as  changed  circum- 
stances may  render  necessary.  State  ex  rel. 
v.  St.  Paul,  M.  6-  M.  R.  Co.,  35  Minn.  131, 
28  N.  W.  Rep.  3. 

Hence,  although  a  railroad  crossing  may 
have  been  adequate  at  the  time  the  railroad 
was  built,  yet  if,  by  reason  of  the  increase 
in  the  number  of  tracks  and  railway  traffic, 
and  of  the  increase  of  travel  on  the  street, 
such  crossing  becomes  unsafe  and  dangerous, 
and  seriously  impairs  and  interferes  with 
the  free  and  proper  use  of  the  street,  it  be- 
comes the  duty  of  the  company  to  provide 
some  other  mode  of  crossing,  as  by  carrying 
the  street  under  or  over  the  tracks.  State 
ex  rel.  v.  St.  Paul,  M.  &*  M.  R.  Co.,  35  Minn. 
131,  28  N.  W.  Rep.  3. 

60.  Missouri.  — If  a  company,  having 
built  a  track  upon  a  street  under  a  license 
from  the  city,  subsequently  tears  up  the 
track  and  surrenders  possession  of  the 
street  to  the  city,  the  fact  that  it  has  once 
accepted  such  license  will  not  estop  it  from 
asserting  a  power  to  build  on  that  street 
which  was  given  by  its  charter,  and  was  in 
existence  when  it  accepted  the  license.    At- 


>, 


I 


STREETS   AND    HIGHWAYS   (RAILWAYS   IN),  51, 52. 


561 


? 


lantic  &•  P.  J\\  Co.  v.  St.  Louis,  66  Mo.  228 ; 
reversing  3  Mo.  A  pp.  315. 

The  Constitution  of  1865,  art.  4,  §  27, 
which  provided  that  "  the  general  assembly 
shall  not  pass  special  laws  granting  to  any 
individual  or  company  the  right  to  lay  down 
railroad  tracks  in  the  streets  of  any  city  or 
town,"  was  prospective  in  its  operation  only, 
and  did  not  repeal  an  act  giving  such  a  riglit 
in  force  at  the  time  of  the  adoption  of  the 
Constitution.  Athintic  &•  P.  N.  Co.  v.  St. 
Louis,  66  Mo.  228;  reversing  3  Mo.  App.  315. 

A  company  cannot,  under  the  statute 
(Gen.  St.  1865,  p.  333;  Rev.  St.  1879,  §  765). 
construct  its  road  along  or  upon  a  public 
highway,  except  with  tlie  consent  of  the 
county  court;  and  if  it  does  so  without  such 
consent,  a  court  of  equity  will  interfere  and 
grant  to  the  county  appropriate  relief.  State 
exrel.  v.  St.  Louis,  K.  &>  N.  W.  R.  Co.,  29 
Am.  &^  Etig.  R.  Cas.  607,  86  Mo.  288. 

The  profile  and  map  of  the  route  of  the 
defendant  ompany  through  the  county  was 
filed,  as  required  by  statute,  in  the  odice  of  the 
clerk  of  the  county  court  in  April,  1878,  and 
the  present  action  to  restrain  defendant  from 
using  the  higliway  was  instituted  in  Janu- 
ary, 1882.  Held,  that  there  was  no  such  de- 
lay on  the  part  of  tiie  county  as  to  preclude 
it  from  assertini^  its  rights  against  the  com- 
pany. State  ex  rel.  v.  St.  Louis,  K.  tS^  N. 
IV.  R.  Co.,  29  Am.  (S-  Eng.  R.  Cas.  607,  86 
Mo.  288. 

The  legislature  authorized  a  company  to 
lay  its  track  on  the  streets  of  a  city,  with 
the  requirement,  however,  that  it  be  "  so 
constructed  as  not  to  hinder  or  prevent  the 
public  from  using  the  street."  Hetii,  that 
if  the  character  of  the  street  should  be  such 
that  the  track  could  not  be  laid  thereon 
without  hindering  the  public  from  using  it, 
then  it  could  not  be  laid  thereon,  no  mat- 
ter how  important  it  should  be  to  the  com- 
pany to  use  the  street.  Dubach  v.  Hannibal 
&*  St.  /.  R.  Co.,  29  Am.  &^  Eng.  R.  Cas.  609, 
89  Mo.  483,  I  S.  IV.  Rep.  86. 

The  legislature  may  authorize  the  laying 
of  a  track  in  the  streets  of  a  city,  but  the 
track  must  be  laid  in  the  manner  author- 
ized. Dubach  v.  Hannibal  &^  St.  J.  R.  Co., 
29  Am.  &*  Eng.  R.  Cas.  609,  89  xMo.  483,  i  S. 
W.  Rep.  86. 

By  the  charter  of  a  company  and  the  spe- 
cial act  mentioned  therein  (Laws  1851,  p. 
479;  Laws  1837,  p.  271),  power  is  given  to 
the  company,  after  having  first  obtained 
from  the  county  court  an  order  permitting 
7  D.  R.  D.— 36 


it  to  do  so,  to  build  its  road  along  or  across 
any  state  or  county  road,  or  tiie  streets  and 
wharvesof  any  city,  town,  or  village,  it  being 
provided  that  said  order  may  be  made  "  if 
the  county  court  is  satisfied  that  no  great 
injury  will  be  done  to  the  public."  Held, 
that  the  right  to  grant  the  right  of  way  is 
vested  in  the  discretion  of  the  court,  and 
that  there  could  be  no  review  of  its  exercise 
in  the  circuit  court.  St.  Louis,  I.  M.  &•  S. 
R.  Co.  V.  '"  Louis,  gz  Mo.  160,  10  West, 
iiep.  359,  4        W.  Rep.  664. 

The  Missouri  statute  requiring  railroad 
companies  to  construct  and  maintain  suit- 
able ditches  and  drains  along  each  side  of 
their  roadbeds  is  not  applicable  to  a  rail- 
road constructed  along  a  street  in  a  town  or 
city  ;  and  where  a  company  has,  without 
the  consent  of  the  municipal  authorities, 
dug  a  ditch  in  a  public  street  by  the  side  of 
its  track,  it  is  liaoie  to  the  owners  of  abut- 
ting property  for  damages  naturally  result- 
ing therefrom.  Jackson  v.  Chicago,  S.  F. 
&*  C.  R.  Co.,  43  Am.  &'  Eng.  R.  Cas.  145,  41 
Fed.  Rep.  656. 

51.  New  Hampshire.— The  legislature 
has  a  right  to  provide  for  and  determine 
the  mode  of  making  such  alterations  in  the 
highways  as  the  public  good  may  require 
by  reason  of  the  ctjnstruction  of  a  railroad, 
and  such  alteration,  if  made  by  tiie  railroad 
company  in  pursuance  of  a  liability  imposed 
by  its  charter  or  by  general  statutes,  can- 
not be  made  the  subject  of  an  action  against 
the  corporation.  Towle  v.  Eastern  R.  Co., 
17  N.  H.  519. 

52.  New  Jersey.  —  The  legislature  has 
the  power  to  authorize  the  use  of  a  public 
highway  for  the  purpose  of  a  railroad  in 
such  a  manner  as  not  entirely  to  '?stroy 
its  use  for  ordinary  travel.  The  use  01  pub- 
lic highways  belongs  to  the  public,  and  they 
have  not  been  dedicated  to  any  particular 
mode  of  travel  or  use.  Morris  ^S^•  E.  R.  Co. 
V.  Mayor,  etc.,  of  Newark,  10  N.  J.  Eg.  352. 

The  legislature  must  be  the  judge  as  to 
the  benefit  to  the  public,  and  to  its  au- 
thority individuals  and  the  public  must 
submit.  Morris  &*  E.  R.  Co.  v.  Mayor,  etc., 
of  Newark,  10  N.J.  Eq.  352. 

Where  a  charter  provides  how  the  com- 
pany may  cross  highways,  and  how  it  may 
take  private  property,  but  is  silent  as  to 
occupying  a  highway  longitudinally,  the 
company  will  be  denied  the  right  to  do  so 
without  the  consent  of  the  proper  town 
officers.     Morris  &•  E.  R.  Co.  v.  Mayor,  etc., 


■I'l 


§1 


K 


« 


562 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  63. 


1^    I 


f. 


It*  f 


4i  I 


<»/■  Newark,  lo  A^.  /.  £'(7.  352.— Followed 
IN  Attorney-General  ex  rel.  z/.  Morris  &  E. 
R.  Co..  19  N,  J.  Eq.  386. 

The  public  rights  in  the  highways  of  the 
state  can  be  impaired  or  interfered  with  by 
nothing  short  of  the  authority  conferred  by 
the  sovereign  power.  Tliat  authority  must 
l)e  expressly  given ;  or  if  conferred  by  im- 
plication, it  must  be  a  necessary  implication. 
Morn's  &•  E.  R.  Co.  v.  Mayor,  etc,  of 
Newark,  10  N.  J.  Eq.  352. 

Thus  the  acts  of  defendant,  upon  which 
complainant  relied  as  establishing  consent, 
were  not  sufficient  while  there  was  no 
license  given  to  the  company,  either  by 
parol  or  in  writing;  and  no  fraud  can  be  in- 
ferred from  the  fact  that  defendant  did  not 
interfere,  but  stood  by  in  silence,  while  com- 
plainant expended  its  money  in  the  con- 
struction of  its  road  upon  the  publi'  high- 
ways. Morris  &'  E.  R,  Co.  v.  Mayor,  etc., 
of  Newark,  10  N.  f.  Eg.  352. 

There  is  no  legislative  sanction,  either  in 
the  supplement  of  March  2,  1836,  or  in  the 
further  supplement  of  February  22,  1838,  to 
the  company's  occupying  any  public  high- 
way without  first  obtaining  the  consent  of 
the  proper  legal  authorities.  These  acts  will 
not  warrant  such  a  construction.  Morris  &• 
E,  li.  Co.  V.  Mayor,  etc.,  of  Newark,  10  N. 
J.  Eg.  352. 

The  charter  of  a  street-car  company  au- 
thorized it  to  lay  rails  in  the  streets  of  a 
city,  upon  first  obtaining  the  consent  of  the 
common  council.  By  a  supplement  the 
construction  of  several  tracks,  specified 
therein,  was  positively  authorized  without 
any  condition  or  reference  to  the  consent  of 
the  common  council.  Held,  that  as  to  such 
tracks,  consent  of  the  council  was  not  neces- 
sary. The  grant  of  powers  of  local  govern- 
ment to  a  municipal  corporation  is  not  a 
contract,  but  an  exercise  of  legislative 
power;  and  the  legislature  may  at  any 
time  take  away,  resume,  or  limit  such 
power,  fersey  City  v.  Jersey  City  &»  B.  R. 
Co.,  20  N.J.  Eg.  360. 

A  grant  of  power,  in  laying  out  and  con 
structing  a  railroad,  to  change  the  location 
of  any  public  road,  if  the  company  shall  find 
it  necessary,  and  to  occupy  such  portions  of 
the  road  as  it  may  deem  necessary  or  expe- 
dient— the  company  to  cause  the  changed 
portion  of  such  road  to  be  reconstructed  at 
its  own  expense,  in  as  perfect  a  manner  as 
the  original  road — does  not  authorize  the 
diversion  of  an  ancient  highway  because 


the  company  finds  it  to  its  pecuniary  ad- 
vantage or  convenience  to  make  such  diver- 
sion. The  alteration  or  diversion  must  be  a 
necessary  one.  Greenwich  v.  Easton  &*  A.  R. 
Co.,  r<  A^.  /.  Eg.  217  ;  affirmed  in  21  N.  J. 
Eg.  565.— Explaining  State  (New  Jersey 
R.  &  T.  Co..  Pros.)  V.  Hancock,  35  N.  J.  L. 
537.  Quoting  Warren  R.  Co.  v.  State,  29  N. 
J.  L.  353.  Referring  to  Queen  v.  Sharpe, 
3  Railw.  Cas.  35.  Reviewing  Queen  v. 
Wycombe  R.  Co.,  L.  R.  2  Q.  B.  310. 

The  grant  to  a  company  by  its  charter  of 
power  to  lay  out  and  construct  a  railroad 
between  designated  termini  carries  with  it, 
as  an  incident  '  I  the  grant,  power  to  cross 
streets  and  h'  ways  within  the  location  of 
its  road,  without  any  special  grant  to  that 
effect.  Allen  v.  Mayor,  etc.,  of  Jersey  City, 
49  Am.  &>  Eng.  R.  Cas.  289,  53  N.J.  L.  522, 
22  Atl.  Rep.  257. 

53.  New  York.— The  Railroad  Act  of 
April  4,  1854,  in  relation  to  the  construction 
of  railroads  in  cities,  excepts  from  its  oper- 
ation all  railroads  already  "constructed  in 
part."  Held,  that  this  meant  those  con- 
structed under  lawful  authority,  and  would 
not  include  one  constructed  under  a  license 
or  grant  which  was  entirely  unauthorized. 
Wetmore  v.  Story,  22  Barb.  {N.  K)  414. 

Under  the  statutes  the  legislature  confers 
the  right  upon  a  company  to  cross  the  streets 
of  a  city,  subject  to  the  consent  of  the  city  ; 
but  when  the  consent  is  once  obtained,  the 
right  becomes  absolute,  as  conferred  by  the 
legislature  and  not  the  city,  and  cannot  be 
revoked  by  any  subsequent  act  of  the  city. 
Delaware,  L.  6^  W.  R.  Co.  v.  Buffalo,  48  N. 
Y.  S.  R.  501,  65  Hun  464,  20  N.  V.  Supp.  448. 

The  act  of  1890,  ch.  565,  §  4,  subd.  4,  pro- 
vides that  a  railroad  company  shall  have  the 
right  "  to  construct  its  road  across,  along,  or 
upon  any  stream,  watercourse,  highway, 
plank  road,  turnpike,  or  across  any  of  the 
canals  of  the  state,  which  the  route  of  its 
road  shall  intersect  or  touch."  Held,  that 
this  does  not  confer  upon  the  company  the 
rigiit  to  build  its  track  along  a  highway. 
Burt  v.  Lima  &*  H.  F.  R.  Co.,  48  N.  V.  S.  R. 
553,  21  N.  V.  Supp.  482. 

At  the  time  of  the  passage  of  the  act  of 
1859,  ch.  484,  providing,  among  other  things, 
for  the  relinquishment  by  the  Long  Island 
railroad  company  of  the  right  to  use  steam 
power  within  the  city  of  Brooklyn,  said  com- 
pany was  rightfully  using  steam  on  Atlantic 
avenue,  in  that  city ;  but  in  pursuance  of  the 
act,  and  in  consideration  of  a  payment  made 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  B4. 


56a 


4 


to  it  and  assessed  upon  the  property  bene- 
fited, the  road  was  thereafter  operated  by 
horse  power  until  1876,  when  the  legislature 
passed  a  statute,  confirming  an  ordinance  of 
the  city,  authorizing  steam  power  to  be  re- 
sumed. Held,  that  the  statute  of  1876  left 
the  original  charter  of  the  company  in  full 
force,  and  it  had  a  right  to  determine  what 
motive  power  it  would  use,  and  might  re- 
sume the  use  of  steam.  People  v.  Brooklyn, 
F.  &*  C.  I.  R.  Co.,  9  Am.  6-  Eng.  R.  Cas. 
454,  89  A^  y.  75 ;  affirming  24  Hun  529, 
mem. — Applying  Farmers'  Turnpike  Co. 
V.  Coventry,  10  Johns.  (N.  Y.)  389 ;  Mohawk 
Bridge  Co.  v.  Utica  &  S.  R.  Co.,  6  Paige 
(N.  Y.)  554 ;  Mason  v.  Brooklyn  City  &  N. 
R.  Co.,  35  Barb.  377.  Following  In  re 
Gilbert  El.  R.  Co.,  70  N.  Y.  361 ;  In  re  New 
York  El.  R.  Co.,  70  N.  Y.  327.— Applied  in 
People  V.  C  Brien,  36  Am.  &  Eng.  R.  Cas. 
78,  III  N.  Y.  I,  18  N.  E.  Rep.  692,  19  N.  Y. 
S.  R.  173.— /«  re  Long  Island  R,  Co.,  50  N. 
Y.  S.  R.  257,  66  Hun  631,  mefn,,  21  JV.  V. 
Supp.  489 ;  affirmed  in  143  N.  Y.  67, 60  N.  Y. 
S.  R.  460.  37  N.  E.  Rep.  636. 

The  act  of  i860  relative  to  railroads  in  the 
city  of  New  York,  ch.  10,  §  i,  prohibiting  the 
building  of  any  railroad  "  in,  upon,  or  along 
any  or  either  of  the  streets  or  avenues  "  of 
said  city,  "except  under  the  authority  and 
subject  to  the  regulations  and  restrictions 
which  the  legislature  may  hereafter  grant 
and  provide,"  applies  as  well  to  a  railroad 
crossing  or  intersecting  a  street  as  to  one 
running  along  it.  A  railroad  crossing  a 
street,  either  at  grade  or  under  or  above  the 
surface,  is  at  the  point  of  crossing  both  "  in  " 
and  "upon"  it,  within  the  meaning  of  said 
provision.  (Earl,  J.,  dissenting.)  People's 
Rapid  Transit  Co.  v.  Dash,  46  Am.  &*  Eng. 
R.  Cas.  1 14,  125  A^.  Y.  93,  26  N.  E.  Rep.  25, 
34  A';  Y.  S.  R.  595.— Followed  in  Schaper 
V.  Brooklyn  &  L.  I.  C.  R.  Co.,  124  N.  Y.  630. 

The  provision  of  the  General  Railroad 
Act  of  1850,  ch.  140,  §  28,  as  amended  by  ch. 
133,  Laws  of  1880,  and  ch.  724,  Laws  of  1887, 
authorizing  railroad  corporations  organized 
under  it  to  construct  their  roads  across 
streets  and  highways,  does  not  grant  the 
authority  made  requisite  by  said  act  of  i860. 
People's  Rapid  Transit  Co.  v.  Dash,  46  Am. 
6-  Eng.  R.  Cas.  114,  125  N.  Y.  93,  26  A';  E. 
Rep.  25.  34  N.  Y.  S.  R.  595. 

54.  Pennsylvania.— The  provision  in 
the  Constitution  that  private  property  shall 
not  be  taken  for  public  use  without  com- 
pensation  does  not  prohibit  the  legislature 


from  granting  to  a  company  the  privilege 
of  laying  rails  on  streets,  and  of  using  the 
railroad  so  made.  Case  0/ Philadelphia  &» 
T.  R.  Co.,  6  Whart.  {Pa.)  25.— Approved  in 
Hinchman  v.  Paterson  Horse  R.  Co.,  17  N. 
J.  Eq.  75.  Criticised  in  Williams  v.  New 
York  C.  R.  Co..  16  N.  Y.  97.  Distin- 
guished IN  Starr  v.  Camden  &  A.  R.  Co., 
24  N.  J.  L.  592.  Followed  in  Faust  v. 
Passenger  R.  Co.,  3  Phila.  (Pa.)  164;  New 
York  &  E.  R.  Co.  v.  Young,  33  Pa.  St.  175  ; 
Branson  v.  Philadelphia,  47  Pa.  St.  329; 
Hatch  V.  Vermont  C.  R.  Co.,  25  Vt.  49. 
Quoted  in  Lackland  v.  North  Mo.  R.  Co., 
31  Mo.  180;  Millvale  v.  Evergreen  R.  Co., 
46  Am.  &  Eng.  R.  Cas.  219,  131  Pa.  St.  i  ; 
Patent  v.  Philadelphia  &  R.  R.  Co.,  17 
Phila.  (Pa.)  291. 

The  power  of  the  legislature  to  authorize 
the  building  of  a  railroad  on  a  street  or  other 
public  highway  is  indubitable;  and  the  ex- 
ercise of  that  power  may  be  devolved,  at 
discretion,  upon  the  local  authorities.  Mer- 
cer v.  Pittsburgh,  Ft.  W.  &>  C.  R.  Co.,  36  Pa. 
St.  99. 

Under  a  charter  granting  to  a  company  the 
iight  to  "enter  upon  *  ♦  ♦  any  land  which 
may  be  wanted  for  the  site  of  said  road," 
the  company  has  the  right  to  locate  its  road 
on  a  street ;  and  if  the  choice  of  location 
is  not  wisely  exercised,  it  can  only  be  in- 
quired into  by  the  commonwealth  after  the 
road  is  built.  Cleveland &•  P.  R.  Co.  v.  Speer, 
56  Pa.  St.  325.  —  Quoted  in  Pittsburgh 
Junction  R.  Co.'s  Appeal,  28  Am.  &  Eng. 
R.  Cas.  266,  122  Pa.  St.  511. 

A  street  is  a  public  franchise,  and  cannot 
be  invaded  except  by  direct  legislative  grant. 
Pennsylvania  R.  Co.'s  Appeal,  3  Am,  &» 
Eng.  R.  Cas.  507,  93  Pa.  St.  150. 

But  the  legislature  has  absolute  control 
over  the  streets  of  '.iie  city.  Com.  ex  rel.  v. 
Baldwin,  14  Phila  {Pa.)  93. 

A  railroad  company  authorized  to  con- 
struct its  tracks  in  tiie  public  roads,  and  to 
use  steam  and  carry  freight,  has  authority 
to  lay  on  a  street  the  T  rails  in  common 
use,  although  such  rails  be  not  expressly 
authorized,  and  may  obstruct  travel  more 
than  those  used  by  horse  railroads.  Mill- 
vale  V.  Evergreen  R.  Co.,  46  Am.  6*  Eng.  R. 
Cas.  219,  131  Pa.  St.  I,  18  Atl  Rep.  993. 

Whe.e  the  express  words  of  a  statute  do 
not  grant  to  a  company  the  right  to  the 
exclusive  occupancy  of  a  street,  such  a  right 
cannot  be  implied  unless  the  whole  width 
of  the  street  is  reasonably  necessary  for  the 


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STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  55-59. 


linK 


construction  and  operation  of  the  road. 
Pennsylvania  S.  V.  K.  Co.  v.  Philadelphia 
&•  P.  P.  Co.,  56  Ami.  6-  En^.  P.  Cas.  610, 
157  Pa.  St.  42,  27  Atl.  Pep.  683.— Quoting 
Mayor,  etc.,  of  Allegheny  v.  Ohio  &  P.  R. 
Co.,  26  Pa.  St.  355. 

The  presumption  that  a  company  has 
taken  the  general  width  of  its  right  of  way 
as  specified  in  the  charter  has  no  application 
to  the  surface  of  public  streets,  where  the 
words  of  the  charter  express,  with  reference 
to  such  streets,  nothing  more  tiian  a  right 
of  way.  Pennsylvania  S.  V.  P.  Co.  v. 
Philadelphia  Sf  P.  P.  Co.,  56  Am.  &"  Eng. 
P.  Cas.  610,  157  Pa.  St.  42,  27  Atl.  Pep.  683. 

The  right  in  such  case  is  limited  to  an 
occupation  reasonably  demanded  by  the 
transaction  of  the  business  contemplated ; 
where,  by  years  of  actual  use  in  the  busi- 
ness, it  has  been  demonstrated  what  extent 
of  occupancy  is  sufficient  to  accomplish  the 
purpose  of  the  grant,  the  extent  of  the  use 
determines  the  extent  of  the  grant.  Penn- 
sylvania  S.  V.  P.  Co.  v.  Philadelphia  &•  P. 
P.  Co.,  56  A/n.  (S^'  Eng.  P.  Cas.  6io,  157  Pa. 
St.  42.  27  Ail.  Pep.  683. 

The  act  of  March  20,  i860,  authorizing 
a  company  to  construct  its  road  "  across  or 
along  such  streets  as  it  might  find  expedient 
to  use,"  and  the  act  of  March  29,  1871, 
authorizing  the  use  of  so  much  of  certain 
streets  as  might  "  be  necessary  for  the 
construction  of  their  tracks,  sidings,  and 
branches,"  do  not  express  a  right  to  the 
exclusive  occupancy  of  the  streets.  Penn- 
sylvania S.  V.  P.  Co.  V.  Philadelphia  &•  P. 
P.  Co.,  56  Am.  <S-  Eng.  P.  Cas.  610,  157  Pa. 
St.  42,  27  Atl.  Pep.  683.— Applying  Mayor, 
etc.,  of  Allegheny  v.  Ohio  &  P.  R.  Co.,  26 
Pa.  St.  355;  Philadelphia  &  R.  R.  Co.  v. 
Berks  County  R.  Co.,  2  Woodw.  Dec.  (Pa.) 
361.  Distinguishing  Jones  v.  Erie  &  W. 
V.  R.  Co.,  144  Pa.  St.  629. 

A  railroad  chartered  under  the  general 
railroad  laws  has  the  implied  right  to  pass 
through  a  borough  lying  upon  its  lawful 
route,  by  locating  its  tracks  longitudinally 
upon  one  of  the  public  streets  of  such 
borough.  Philadelphia,  G.  Sr»  N.  P.  Co.  v. 
Pennsylvania  S.  V.  P.  Co.,  16  Phila.  (Pa.) 
636.— Distinguishing  Lewis  v.  German- 
town,  N.  &  P.  R.  Co.,  16  Phila.  (Pa.)  621. 
Quoting  Com.  v.  Erie  &  N.  E.  R.  Co.,  27 
Pa.  St.  339 ;  Cleveland  &  P.  R.  Co.  v.  Speer, 
56  Pa.  St.  333.  Reviewing  Struthersz/.  Dun- 
kirk. W.  &  P.  R.  Co.,  87  Pa.  St.  282  ;  Cake 
V.  Philadelphia  &  E.  R.  Co.,  87  Pa.  St.  307. 


55.  Teiiuessee.  —  The  legislature  has 
the  power  to  authorize  the  building  of  a 
railroad  within  a  town  or  city,  or  upon  a 
street  or  other  public  highway.  Tennessee 
&-  A.  P.  Co.  V.  Adams,  3  Head (Tenn.)  596. 

Where  the  charter  of  a  company  author- 
izes it  to  build  into  a  city,  it  is  authorized 
to  construct  its  road  upon  a  street  or  alley 
where  that  is  necessary.  Tennessee  &*  A. 
P.  Co.  V.  Adams,  3  Head  ( Tenn.)  596. 

50.  Texas. — Tlie  right  to  use  any  of  the 
public  streets,  alleys,  and  highways  of  any 
city  or  town  which  may  be  on  their  lines  of 
road,  without  making  to  such  city  or  town 
any  compensation,  is  expressly  conferred  by 
law  upon  all  railroad  companies  chartered  by 
the  laws  of  this  state.  Pio  Grande  P.  Co.  v. 
Brownsville,  45  Tex.  88,  13  Am.  Py.Pep.  223. 

57.  Virginia.  —  Under  its  charter  the 
James  River  &  Kanawha  company  has  a 
right  to  enter  upon  and  occupy  the  public 
streets  of  a  town,  as  well  and  in  like  manner 
as  the  lands  of  individuals,  when  it  shall 
deem  the  same  necessary  for  its  canal  or 
other  works,  and  for  such  entrance  the 
company  is  liable  to  make  compensation  to 
the  party  injured.  James  Piver  &*  K.  Co. 
V.  Anderson,  12  Leigh  (Va.)  278. — Quoted 
IN  Hodges  V.  Seaboard  &  R,  R.  Co.,  88 
Va.  653. 

58.  Wlscousiu.  —  Rev.  St.  §§  1828, 
subd.  5,  and  1836,  were  intended  to  give  to 
railroad  companies  the  right  to  use  high- 
ways for  passage  with  their  cars  and  engines, 
but  not  for  depot  purposes  of  any  kind. 
Bussian  v.  Milwaukee,  L.  S.  &•  W.  P.  Co., 
10  Am.  &•  Eng.  P.  Cas.  716,  56  IVis.  325, 
1^  N.  IV.  Pep.  452. 

Laws  of  1872,  ch.  119,  §  5,  subd.  5,  pro- 
viding that  railroad  companies  should  have 
power  to  construct  their  roads  across,  along, 
or  upon  any  street  or  highway  intersected 
or  touched,  gave  to  the  company  authority  to 
lay  a  track  in  a  street  in  Milwaukee,  and 
after  the  track  was  so  laid  such  authority 
was  not  taken  away  by  Laws  of  1874,  ch. 
184,  §  3,  subd.  48,  giving  to  the  common 
council  the  power  "to  direct  an'd  control 
the  location  of  railroad  tracks  "  within  the 
city.  Sinnott  v.  Chicago  &>  N.  W.  P.  Co.,  81 
Wis.  95,  50  N.   W.  Pep.  1097. 

59.  Canada.  —  Under  the  provincial 
statute  (14  &  15  Vict.  c.  51),  a  permanent 
diversion  of  a  highway  may  be  made  by  the 
construction  of  a  railway,  where  it  is  neces- 
sary or  expedient.  Fredericksburg h  v.  Grand 
Trunk  P.  Co.,  6  Grant's  Ch.  {U.  C.)  555.      . 


f 


ri 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  60, 61. 


56S 


Where  the  evidence  as  to  the  injury  done 
to  a  highway  by  the  manner  in  which  a  rail- 
way was  constructed  is  conflicting,  the  court 
will  refuse  to  interfere  by  injunction,  but 
will  leave  the  parties  to  their  legal  remedy. 
Fredericksburgh  v.  Grand  Trunk  R,  Co.,  6 
Grant's  Ch.(U.  C.)  555. 

By  22  Vict.  c.  116,  §  15,  all  highways 
occupied  by  a  railway  with  the  written 
assent  of  the  municipality  within  which  it 
is  situated  shall  be  declared  vested  in  it  to 
the  extent  of  the  user  permitted  or  enforced 
by  the  municipality;  and  all  proposed  or 
contemplated  streets  occupied  by  the  com- 
pany, or  which  they  have  been  permitted 
to  occupy  by  the  license  of  the  owner  in  fee, 
and  which  shall  not  lead  to  any  place  beyond 
the  railway,  shall  be  deemed  closed,  and 
the  occupation  by  the  railway  shall  be  lawful. 
Reg  V.  Great  Western  R.  Co.,  21  U.  C.  Q. 
B.  555.— Reviewed  in  Pembroke  Tp.  v. 
Canada  C.  R.  Co.,  3  Out.  503. 

Under  the  statute  4  Wm.  IV.  ch.  29,  §  9, 
providing  that  it  shall  be  lawful  for  corpo- 
rations to  construct  railways  across  any 
road  or  highway,  provided  they  restore  the 
same  "  to  its  former  state,  or  in  a  sufficient 
manner  not  to  impair  its  usefulness,"  a  com- 
pany may  construct  its  road  across  a  street 
below  the  surface,  and  fill  the  street  and 
bridge  the  crossing,  without  being  liable  to 
an  abutting  owner,  though  it  impedes  the 
drainage  of  his  property,  and  renders  the 
crossing  less  convenient.  The  statute  was 
intended  wholly  as  a  safeguard  and  protec- 
tion to  public  interests.  Connors  v.  Great 
Western  R.  Co.,  6  U.  C.  C.  P.  108. 

Section  11  of  said  act,  providing  that  the 
railroad  or  way  contemplated  by  the  act 
shall  not  interfere  with  any  fee  simple,  right, 
or  private  easement,  or  privilege  of  any  in- 
dividual,  without  permission  first  obtained, 
either  by  consent  of  the  owner  thereof  or  by 
virtue  of  a  reference  to  assess  the  damages, 
has  no  application  to  such  a  case.  Connors 
V.  Great  Western  R.  Co.,  6  U.  C.  C.  P.  108. 

60.  England.  —  Where  a  railway  act 
gives  general  power  to  the  company  to  close 
up  streets  within  a  given  area,  there  is  noth- 
ing to  prevent  the  company  from  building  a 
station  upon  a  street  within  the  area  de- 
scribed, although  such  street  is  described  in 
tiie  plans  filed  by  the  company  as  crossed 
by  its  line.  Attorney-General  v.  Great  East- 
ern R.  Co..  L.  R.  6  H.  L.  Cas.  367,  22  W. 
R.  281  ;  affirming  L.  R.  7  Ch.  475,  41  L.  J. 
Ch.  505,  26  L.  T.  749,  20  W.  R.  599. 


Where  a  company  is  given  the  right  by 
special  act  to  close  up  certain  streets  and 
use  them  for  its  works,  having  stopped  up 
one  end  of  the  street,  which  it  required  for 
station  purposes,  and  having  purchased  all 
the  houses  in  such  street,  it  has  a  right  to 
stop  up  and  appropriate  the  rest  of  the 
street.  Temple  v.  Flower,  41  L.  J.  Ch.  604, 
20  W.  R.  537,  26  L.  T.  657. 

The  Railways  Clauses  Act  of  1845,  §  16, 
relating  to  tiie  obstruction  or  diversion  of 
public  roads  rendered  necessary  by  the  con- 
struction of  a  railway,  restricts  the  powers 
conferred  to  acts  which  are  necessary,  and 
does  not  extend  to  acts  done  for  saving  ex- 
pense or  inconvenience  of-  the  company. 
Queen  v.  Wycombe  R.  Co.,  %  B.Sf  S.  259,  36 
L.J.  Q.  B.  121,  L.  R.  2  Q.  n.  310,  15  L.  T. 
610,  15  W.  R.  489.— Approved  and  fol- 
lowed IN  Pugh  V.  Golden  Valley  R.  Co.,  L. 
R.  15  Ch.  D.  330,  49  L.  J.  Ch.  721,  42  L.  T. 
863,  28  W.  R.  863.  Followed  unwill- 
ingly IN  Pugli  V.  Golden  Valley  R.  Co.,  L. 
R.  12  Ch.  D.  274. 

3.   Under  Municipal  Grant 
a.  Necessity  of  Municipal  Consent. 

61.  In  general. —The  legislature  has 
the  right  to  delegate  to  municipal  boards 
the  power  and  discretion  to  say  whether  a 
railroad  shall  be  laid  in  the  streets,  and  if 
so,  where  and  under  what  conditions,  and  it 
has  granted  authority  to  construct  a  railroad 
on  any  highway  or  street  subject  to  the  con- 
dition that  the  consent  of  two  thirds  of 
the  members  of  the  council  or  board  must 
be  obtained  before  any  street  or  avenue  of 
an  incorporated  city  or  town  can  be  taken 
for  that  purpose.  Areata  v.  Areata  &*  M, 
R.  R.  Co.,  92  Cal.  639,  28  Pac.  Rep.  676. 

Where  a  company  has  no  power  to  con- 
struct its  road  in  a  city,  except  the  consent 
of  the  city  council,  which  is  void,  a  court  of 
equity  will  restrain  it  from  proceeding  to 
construct  its  road.  Hickey  v.  Chicago  &» 
W.  I.  R.  Co.,  6  ///.  App.  172.— Quoting 
Cobb  V.  Illinois  &  St,  L.  R.  &  C.  Co.,  68  III. 
235 ;  Sanford  v.  Catawissa,  W.  &  E.  R.  Co., 
24  Pa.  St.  378.  Quoting  and  following 
Smith  V.  Bangs,  15  III.  400. 

But  where  property  owners  bring  such 
bill,  there  must  be  some  special  injury  to 
warrant  an  injunction.  As  to  compteinants 
who  charge  that  they  are  the  owners  of  real 
estate,  which  will  be  taken  or  specially  in- 
jured by  the  road,  the  bill  is  sufficient ;  but 


II 


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STREETS   AND   HIGHWAYS   (RAILWAYS  IN),  68-04. 


,|:,i 


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■i      t 


not  sufficient  as  to  those  who  merely  charge 
that  their  property  will  "  be  more  or  less 
injured."  Hickty  v.  Chicago  &*  W.  I.  Ji. 
Co.,  6  III.  App.  172. 

Where  a  company  has  no  express  grant 
for  the  purpose,  it  has  no  right  to  occupy 
the  highways  of  a  town  without  the  con- 
sent  of  the  proper  officers.  Morris  &*  E. 
R.  Co,  V.  Mayor,  tie,  of  Newark,  10  N.  J. 
Eg.  352. — Followed  in  State  (Hobokcn 
L.  &  I.  Co.,  Pros.)  V,  Mayor,  etc.,  of  Hobo- 
ken,  35  N.  J.  L.  205. 

02.  Wlieu  unnecessary.  —  The  mere 
existence  of  a  power  in  a  city  council  "  to 
provide  for  the  location,  grade,  and  cross- 
ings" of  railroads  within  the  city,  and  "  to 
change  the  location,  grade,  and  crossings  " 
of  railroads,  until  exercised  is  no  limitation 
upon  the  power  of  a  company  to  select  its 
route  and  locate  its  road  within  the  city. 
Chicago  &*  IV.  I.  Ji.  Co.  v.  Dunbar,  S  Am. 
&»  Eng.  R.  Cas.  253,  100  ///.  no. 

Railroad  companies  incorporated  or  act- 
ing under  the  general  statutes  of  Iowa  have 
a  right  to  occupy  such  portions  of  streets  as 
are  reasonably  necessary  for  the  purpose  of 
their  roads,  without  the  consent  of  the 
municipal  authorities,  and  without  making 
compensation  for  such  use  and  occupancy. 
Clinton  v.  Cedar  /Capitis  &^  M.  R.  li.  Co.,  24 
Iowa  455.— Distinguished  in  Kucheman 
V.  Chicago,  C.  &  D.  R.  Co.,  46  Iowa  366. 
Followed  in  Chicago,  N.  &  S.  W.  R.  Co. 
V.  Mayor,  etc.,  of  Newton,  36  Iowa  299 ;  In- 
gram V.  Chicago,  D.  &  M.  R.  Co.,  38  Iowa 
669;  Cook  V.  Chicago,  M.  &  St.  P.  R.  Co., 
83  Iowa  27%.— Cain  v.  Chicago,  R.  I.  &•  P. 
R.  Co.,  54  Iowa  255,  3  N.  W.  Rip.  736,  6  N. 
W.  Rep.  268. 

Subject  to  proper  equitable  and  police 
regulations.  Chicago,  N.  &•  S.  W.  R.  Co.  v. 
Mayor,  etc.,  of  Newton,  36  Iowa  299. — DIS- 
TINGUISHED IN  Heath  v.  Des  Moines  &  St. 
L.  R.  Co.,  10  Am.  &  Eng.  R.  Cas.  313,  61 
Iowa  II.  Followed  in  Clinton  v.  Clinton 
&  L.  Horse  R.  Co.,  37  Iowa  61  ;  Ingram  v, 
Chicago,  D.  &  M.  R.  Co.,  38  Iowa  669 ;  Hine 
V.  Keokuk  &  D.  M.  R.  Co.,  42  Iowa  036. 
Quoted  in  State  v.  Davenport  k  St.  P.  R. 
Co.,  47  Iowa  y>7.—Hine  v.  Keokuk  &•  D.  M. 
R.  Co.,  42  Iowa  636.— Following  Chicago, 
N.  &  S.  W.  R.  Co.  V,  Mayor,  etc.,  of  Newton, 
36  Iowa  299;  Clinton  v.  Cedar  Rapids  &  M. 
R.  R.  Co.,  24  Iowa  455. — State  v.  Davenport 
&»  St.  P.  R.  Co..  47  Iowa  507. 

Prior  to  the  Code  of  1873,  railroad  com- 
panies had  the  right    to    construct  their 


roads,  subject  to  equitable  control,  upon 
the  streets  of  cities  and  incorporated  towns, 
without  their  consent  and  without  compen- 
sation. Ingram  v.  Chicago,  D,  &*  M.  R. 
Co.,  38  Iowa  669.— Following  Clinton  ?'. 
Cedar  Rapids  &  M.  R.  R.  Co.,  24  Iowa  455  ; 
Chicago,  N.  &  S.  W.  R.  Co.  v.  Mayor,  etc., 
of  Newton,  36  Iowa  299. 

The  Chester  &  Delaware  River  R.  Co., 
under  Pa.  General  Law  of  Feb.  19, 1849,  and 
the  act  of  April  4,  1868,  may  construct  a 
branch  railroad  upon  Delaware  avenue,  a 
public  highway  of  the  borough  of  South 
Chester,  without  the  approval  or  consent 
of  the  borough.  Philadelphia,  W.  &*  B, 
R.  Co.  v.  Philadelphia  &*  R.  R.  Co.,  i  Pa. 
Dist.  73. 

Pa.  Act  of  April  10,  1873.  relating  to  the 
Chester  &  Delaware  River  R,  Co.,  is  not  a 
restraining,  but  a  confirmatory,  act,  and 
does  not  restrict  the  exercise  of  the  powers 
vested  in  the  company  by  the  acts  of  1849 
and  1868.  Philadelphia,  W.  <S-  B.  R.  Co.  V. 
Philadelphia  <5-  R.  R.  Co.,  i  Pa.  Dist.  73. 

03.  Unconditional  charter  ri(;ht 
dispenses  with  municipal  assent. — 
A  company  has  the  right  to  construct  and 
operate  its  road  upon  and  along  the  streets 
of  an  incorporated  borpugh,  without  ob- 
taining the  consent  of  the  borough  author- 
ities thereto,  where  its  charter  gives  it, 
without  qualification,  the  right  to  lay  its 
tracks  upon  any  public  road.  Millvalt  v. 
Evergreen  R.  Co.,  46  Am.  &*  Eng.  R.  Cas. 
219,  131  /•«.  S'A  1, 18  At  I.  Rep.  993.— Quot- 
ing Com.  V.  Erie  &  N.  E.  R.  Co.,  27  Pa.  St. 
354;  Case  of  Philadelphia  &  T.  R.  Co.,  6 
Whart.  (Pa.)  25;  Williamsport  Pass.  R.  Co. 
V.  Williamsport,  120  Pa.  St.  i. 

04.  Power  of  city  to  prohibit  use 
of  steam  power.*  — A  railroad  charter 
provided  that  the  company  should  obtain 
the  consent  of  the  city  authorities  before 
constructing  its  road  within  the  city,  and 
it  authorized  the  city  authorities  "  to  regu- 
late the  time  and  manner  of  using  the 
same."  In  granting  the  consent,  the  city 
reserved  to  itself  the  right  of  regulating  the 
motive  power  to  be  used,  and  subsequently 
passed  an  ordinance  prohibiting  the  use  of 
stea'u.  Held,  that  the  condition  upon  which 
the  company  was  authorized  to  build  its 
road  into  the  city  was  authorized  by  its 
charter,  and  the  city  might   control  the 


*  Prohibition  by  municipality  of  use  of  steam 
in  streets,  see  note,  20  Am.  &  Eng.  R.  Cas.  554. 


^t 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  65-68.  667 


v-r 


I 


motive  power  to  be  used.  Ntw  York  &»  N. 
H.  R.  Co.  V.  Mayor,  ttc,  of  N.  Y.,  4  Blatchf. 
(U.  5.)  193. 

In  such  case  a  subsequent  act  of  the  legis- 
lature, conferring  upon  a  second  company 
the  right  to  use  the  track  thus  authorized 
within  the  city,  confers  upon  it  no  greater 
powers,  as  to  the  motive  power  to  be  used, 
than  the  original  company  had  ;  and  the 
city  has  the  same  right  to  regulate  the 
motive  power  of  the  second  company  as  it 
has  of  the  first.  New  York  <S-  N.  H.  R.  Co. 
V.  Mayor,  etc.,  of  N.  Y.,  4  Blatchf.  (I/. 
S.)  193- 

A  statute  giving  to  a  city  power  to  regu< 
late  the  running  of  cars  within  the  corporate 
limits  authorizes  the  corporation  to  pro- 
hibit the  propelling  of  the  cars  by  steam 
through  any  part  of  the  city.  Buffalo  &* 
N.  F.  R.  Co.  V.  Buffalo,  5  Hill  (N.  Y.)  209. 
—Quoted  in  Whitson  v.  Franklin,  34  Ind. 
392.  Reviewed  in  Green  v.  Delaware  & 
H.  Canal  Co.,  38  Hun  (N.  Y.)  51. 

Where  the  charter  of  a  company  does  not, 
in  express  terms  or  by  necessary  implica- 
tion, vest  in  it  the  right  to  propel  engines  by 
steam  through  the  streets  of  a  city  without 
the  consent  of  the  city,  and  the  charter  of 
the  city  gives  authority  to  prevent  the 
propelling  of  tlie  cars  by  steam  through  the 
streets  of  the  city,  provided  no  contract  is 
thereby  violated,  the  council  may  prohibit 
said  company  from  the  use  of  steam  in  pro- 
pelling cars  in  the  streets.  Richmond,  F.  &* 
P.  R.  Co.  v.  Richmond,  26  Graft.  ( Va.)  83. 

Co.  Repeal  of  provision  requiriiif; 
assent  of  city.— The  provision  of  HI.  Gen- 
eral Railroad  Act  of  1849,  prohibiting  rail- 
roads from  entering  cities  without  munici- 
pal consent,  if  not  repealed  by  implication 
by  the  act  of  1872,  is  wholly  so  by  the  act  of 
March  31,  1874.  Chicago  &*  W.I.  R.  Co.  v. 
Dunbar,  5  Am.  &*  Eng.  R.  Cas.  253,  100 
///.no. 

In  i860  the  legislature  authorized  the 
construction  of  a  railroad  on  certain  streets 
in  the  city  of  New  York,  and  prohibited 
the  city  from  giving  its  consent  to  any  com- 
pany organized  under  N.  Y.  General  Rail- 
road Act  of  1850  to  construct  a  road  on 
the  same  route.  Held,  that  this  must  be 
considered  as  repealing  the  requirement  of 
such  assent  for  a  road  on  the  same  route. 
New  York&'H.R.  Co.  v.  Forty-second  St.&* 
G.  S.  F.  R.  Co.,  32  How.  Pr.  (N.  K.)  481,  50 
Barb.  309 ;  affirming  $0  Barb.  285,  26  Hcnv. 
Pr.  68. 


66.  Settlement  of  disputes  between 
city  and  company  as  to  streets  to  be 
occupied.  —  In  case  of  disagreement  be- 
tween a  company  and  city  authorities  as  to 
what  streets  should  be  occupied  by  the  rail- 
road, it  is  the  duty  of  each  to  invoke  the 
aid  of  the  state  engineer  or  other  person  to 
be  appointed  by  the  governor  to  designate 
the  street  to  be  taken  by  the  railroad.  Rio 
Grande  R.  Co.  v.  Brownsville,  45  Tex.  88,  13 
Am.  Ry.  Rep.  223. 

67.  Time  of  consent— Estoppel.— 
A  company  constructed  its  railway  along 
a  highway  in  a  municipality,  the  council 
whereof  was  not  formally  applied  to  for 
leave,  but  subsequently  passed  a  resolution 
notifying  the  company  to  fill  up  the  ditch 
existing  on  both  sides  of  the  railway,  and  to 
put  down  proper  crossings.  Held,  that  the 
corporation  had  thereby  admitted  that  the 
company  was  lawfully  in  occupation  of  the 
highway,  and  could  not  afterwards  object. 
Pembroke  Tp.  v.  Canada  C.  R.  Co.,  14  Am. 
<S~»  Eng.  R.  Cas.  117,  3  Ont.  503.— QUOTING 
Reg.  V.  Grand  Trunk  R.  Co.,  15  U.  C.  Q.  B. 
121.  Reviewing  Reg.  v.  Great  Western 
R.  Co.,  21  U.  C.  Q.  B.  555. 

The  leave  of  the  municipal  or  local 
authorities  required  by  31  Vict.  c.  68,  D., 
before  a  railway  is  carried  along  an  existing 
highway,  may  be  granted  at  any  time, 
whether  before,  during,  or  after  the  con- 
struction of  the  railway,  and  need  not  nec- 
essarily be  given  by  a  by-law.  Pembroke  Tp, 
V.  Canada  C.  R.  Co.,  14  Am.  &*  Eng.  R.  Cat. 
117,  3<?«/.  503. 

In  such  case  the  corporation,  having  stood 
by  while  the  railway  was  constructed,  and 
subsequently,  for  upwards  of  five  years, 
while  it  was  in  operation,  and  having  also 
by  the  resolution  aforesaid  procured  further 
expenditure  by  the  company,  was  bound  by 
acquiescence,  and  could  not  maintain  an 
action  for  the  removal  of  the  railway.  Pem- 
broke Tp.  V.  Canada  C.  R.  Co.,  14  Am.  &* 
Eng.  R.  Cas.  117,  3  Ont.  503. 

68.  Bale  in  city  of  New  York.— 
No  question  can  now  arise  as  to  the  power 
of  the  legislature  to  authorize  the  construc- 
tion of  a  railroad  upon  any  of  the  streets  of 
the  city  of  New  York,  without  compensa« 
tion  to  the  corporation,  or  to  the  owners  of 
property  fronting  on  the  street,  and  without 
the  assent  of  the  corporation,  but  even  in 
direct  opposition  to  its  wishes.  New  York 
&*  H.  R.  Co.  V.  Forty-second  St.  6-  G.  S.  F. 
A'    Co..  32  How.  Pr.  (N.  Y.)  481.  50  Barb. 


fill 


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668 


STREETS   AND   HIGHWAYS   (RAILWAYS  IN),  69. 


309;  affirming  ^oliarb.  285,  26  How.  Pr.68. 
—  Following  I'coplc  v.  Kerr,  27  N.  V.  188, 
25  How.  l*r.  258. 

If  it  be  adiiiiucd  tliat  a  company  has  a 
riylit  to  construct  its  road  in  New  York 
city  without  tlic  consent  of  the  municipal 
authorities,  still  another  company  claiming 
to  be  injured  by  the  construction  of  such 
road  cannot  take  advantage  of  such  nun- 
assent.  New  York  &^  //.  Ji,  Co.  v.  Forty- 
second  St.  &'  G.  S.  F.  A".  Co..  32  How.  Pr. 
(N.  ]'.)  481,  ^o  Barb.  309;  affirming  %oDarb. 
285,  26  Hinu.  Pr.  68, 

b.  Power  to  Grant  Right  of  Way. 

00.  CitlcH  limy  niitliorizo  tlio  uso 
of  Htrccts  by  rallrtmds.*  —  The  mayor 
and  council  of  Savannah  may  grant  author- 
ity to  lay  tracks  in  the  public  streets  to 
a  railroad  chartered  with  the  privilege  of 
running  from  some  point  within  the  city, 
which  point  was  to  be  determined  by  the 
mayor  and  council,  and  if  the  streets  be 
not  obstructed  permanently  by  excavations 
or  embankments,  or  otherwise,  such  road 
will  not  constitute  a  public  nuisance.  Coast 
Line  li.  Co.  v.  Cohen,  50  Ga.  451. 

A  city  lias  the  power  to  allow  the  con- 
struction of  a  railroad  upon  or  over  its 
streets,  and  the  public  will  be  bound  by 
whatever  may  be  lawfully  done  in  regard  to 
the  streets  by  the  city.  Chicago  &•  N.  IV. 
R.  Co.  V.  People  ex  rel.,  91  ///.  251.  Tate  v. 
Ohio  &^  M.  R.  Co..  7  Ind.  479. 

The  construction  of  a  railway  upon  a 
strip  of  land  held  by  a  city  for  public  use, 
as  a  public  highway  and  for  other  public 
uses,  would  be  a  public  use  within  the 
meaning  of  the  act  creating  such  reserva- 
tion, and  the  city  may  lawfully  convey  the 
same  to  a  company  for  a  right  of  way  there- 
over, and  for  such  other  uses  as  justify  the 
exercise  of  the  right  of  eminent  domain. 
Cook  V.  Burlington,  30  Iowa  94. — Quoting 
Milburn  v.  Cedar  Rapids,  12  Iowa  246. — 
Followed  in  Cook  v.  Burlington,  36  Iowa 
357. — Cook  V.  Burlington,  36  Iowa  357. — 
Followed  in  Ingram  v.  Chicago,  D  &  M. 
R.  Co.,  38  Iowa  669. 

It  is  competent  for  a  city  to  convey  to  a 
company  a  right  of  way  and  other  uses  con- 

•  Power  of  municipal  corporations  to  author- 
ize railroads  in  streets,  see  notes,  67  Am.  Dfx. 
aoi;  8  Id  310;  7  Am.  &  Eng.  R.  Cas.  15;  13  Id. 
637  ;  14  Id.  ICQ  ;  15  Id.  402. 


nccted  with  its  road  in  respect  to  certain 
accretions  to  a  street  bounded  on  the  Mis- 
sissippi river.  Cook  v.  Burlington,  36  Iowa 
357.- -Following  Cook  v.  Burlington,  30 
Iowa  94,  6  Am.  Rep.  649. 

The  grant  by  a  city  of  the  right  to  con- 
struct and  operate  a  railway  through  its 
streets  will  be  presunicd  to  be  for  such  a 
railway  as  the  city  has  p(jwer  to  authorize 
in  its  streets,  and  proof  that  such  railway  is 
used  by  its  owners  in  transporting  their 
own  property  will  not  establish  the  fact 
that  it  is  a  private  road.  O'A'eil  v.  Lamb, 
53  Iowa  725,  6  A'.  U\  Rep.  59. 

Iowa  Code,  §  464,  as  amended  in  1874,  ch. 
7,  confers  upon  cities  the  power  to  grant  the 
right  to  construct  and  operate  railways  in 
their  streets,  and  such  power  may  be  exer- 
cised by  cities  in  their  discretion,  subject 
only  to  equitable  control  and  proper  police 
regulations.  O'Neil  v.  Lamb,  53  Ivwa  725, 
6  N.  IF.  Rep.  59. 

The  fluty  enjoined  upon  a  city  council  by 
Iowa  Code,  §  527,  to  keep  all  alleys  "  open  " 
and  "free  from  all  nuisances,"  has  no  refer- 
ence to  such  obstructions  as  the  city  is 
specially  empowered  to  authorize,  and  does 
not,  therefore,  deprive  the  council  of  the 
power  granted  by  section  464,  to  authorize 
the  use  of  alleys  for  railway  purposes,  even 
though  such  use  may  to  a  certain  extent  in- 
terfere with  the  ordinary  use  of  such  alleys. 
Heath  v.  Des  Moines  6-  St.  L.  li.  Co.,  10 
Am.  &^  Eng.  K.  Cas.  313,  6i  Iowa  II,  15  A^. 
IV.  Rep.  573. 

Where  the  fee  o(  a  street  is  in  the 
county,  b\it  the  control  of  the  same  is  in 
the  city,  it  is  within  the  power  of  the  latter 
to  grant  to  a  railroad  company  the  right  to 
construct  and  operate  its  road  over  the 
street.  Atchison  6-  N.  R.  Co,  v.  Manley,  42 
Kan.   577,  22  Pac.  Rep.  567. 

The  right  of  the  authorities  of  a  city,  with 
legislative  warrant,  to  permit  the  construc- 
tion and  operation  through  its  streets  of 
railroads  upon  which  trains  of  cars  are  pro- 
pelled by  steam  is  not  now  an  open  ques- 
tion. Cosby  V.  Owensboro  &•  R.  R.  Co.,  10 
Bush  {Ky.)  288.— Followed  in  Fulton  v. 
Short  R.  R.  Transfer  Co..  85  Ky.  640,  7  Am. 
St.  Rep.  619,  4  5.  W.  Rep.  332. 

Municipal  corporations,  empowered  by 
their  charters  or  otherwise  to  do  so,  may 
authorize  the  use  of  their  streets  for  railroad 
purposes.  Iron  Mountain  R.  Co.  v.  Bing- 
ham, 38  Am.  <S»  Eng.  R.  Cas.  444,  87  Tenn. 
522,  4  L.  R.  A.  622,  II  5.    W.  Rep.  705. 


I 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  70-72. 


669 


'$ 


4' 
i 


70.  Tbey  may  do  ho  under  their 
general  powers  over  streetH.*— Under 
the  charter  of  the  city  of  Chicago,  its  mu- 
nicipal authorities  are  vested  with  the  exclu- 
sive control  of  the  streets;  and  where  such 
authorities  grant  to  a  company  permission  to 
construct  a  railway  on  the  streets,  owners 
or  occupants  of  abutting  property  cannot 
enjoin  the  construction  of  the  road,  nor 
recover  damages  for  the  use  of  the  street. 
Moses  V.  PitUburgh,  Ft.  W.  &*  C.  A'.  Co.,  21 
///.  516.— Distinguished  in  St.  Louis,  \'  & 
T.  H.  R.  Co.  V.  Capps,  67  III.  607  ;  PorJ.md 
&  W.  V.  R.  Co.  V.  Portland,  27  Am.  &  Eng. 
R.  Cas.  353,  14  Oreg.  188.  Modified  in 
Pekin  v.  Brereton,  67  111  477.  Quoted  in 
Ligare  7/.  Chicago,  139  III.  46;  Chicago,  D. 
&V.  R.  Co.  W.Chicago,  121  III.  176,  11  N. 
E.  Rep.  907,  9  West.  Rep.  493 ;  Detroit  City 
R.  Co.  V.  Mills,  85  Mich.  634.  Reviewed 
IN  Olney  v.  Wharf,  115  111.  519. 

A  provision  in  a  city  charter  giving  to  its 
council  exclusive  power  over  its  streets  will 
authorize  such  council  to  confer  upon  a 
company  the  right  to  use  the  streets  with  its 
track  for  railroad  purposes.  Chicago,  B.  &* 
Q.  li.  Co.  V.  Quincy,  136  ///.  489,  27  A'.  E. 
Kep.  232 ;  reversing  yi  III.  App.  yjj. 

Where  a  county  road  has  been  included 
within  the  limits  of  an  incorporated  town, 
and  the  municipal  authorities  of  the  town 
have  assumed  control  of  the  road,  they  may, 
under  their  general  powers  with  reference 
to  streets,  alleys,  etc.,  authorize  a  company 
to  use  a  portion  of  the  road  for  the  purpose 
of  its  railway,  in  accordance  with  the 
statute.  Yates  v.  West  Grafton,  34  W.  Va. 
783.  12  S.  E.  Rep.  1075. 

Such  transfer  of  the  use  of  a  portion  of  such 
road  to  a  company  for  the  purpose  of  con- 
structing its  railroad  thereon  in  the  manner 
prescribed  by  statute  is  not  a  taking  of  the 
property  without  the  consent  of  the  owner 
of  the  fee,  within  W.  Va.  Const,  art  3,  §  9. 
Yates  V.  West  Grafton,  34  W.  Va.  783,  12 
5.  E.  Rep.  1075. 

The  owner  of  lots  and  lands  adjoining 
said  road,  along  which  the  railroad  is  con- 
structed, whether  he  owns  the  fee  in  the 
ground  occupied  by  the  road  or  not,  cannot 
enjoin  the  company  from  constructing  its 
railroad  along  the  road  in  the  manner  re- 
quired by  the  statute,  unless  the  injury 
therefrom  will  entirely  destroy  the  value  of 

*'  When  city  council  may  grant  authority  to 
operate  railways  on  streets,  see  note,  2  L.  R. 
.A.  59. 


his  property,  and  thereby  be  equivalent  tea 
taking  of  it  by  the  company.  Yates  v. 
West  Grafton,  34  W.  Va.  783,  13  S.  E. 
Rep.  1075. 

71.  The  power  denied,  as  a  proper 
exercise  of  municipal  "control  of 
streets,"  etc. —  A  general  clause  in  the 
charter  of  a  city  giving  to  it  power  to  control 

(s  streets  is  not  sufficient  to  authorize  the 
pi  ant  to  a  railroad  comp.iny  of  the  privilege 
uf  laying  tracks  along  its  streets.  Daly  v. 
Georgia  Soul  hern  &*  F.  R,  Co.,  36  Am.&* 
Eng.R.  CIS.  20,  80  Ga.  793,  7  S.  E.Rep.  146. 

A  city  has  no  power  to  grant  to  a  com- 
I'lnythe  right  to  construct  and  operate  a 
railway  through  its  streets  and  alleys,  unless 
it  is  expressly  authorized  to  do  so  either  by 
its  own  charter  or  by  the  charter  of  the 
company.  ''""«.  v.  Frankfort,  92  Ky.  149, 
17  S.  W.  Rep.  287. 

The  use  of  streets  for  a  railroad  track  is 
not  within  the  use  to  which  they  were  origin- 
ally dedicated  ;  and  a  city  cannot,  by  virtue 
of  a  provision  in  its  charter  that  the  council 
shall  have  "  exclusive  control  of  the  streets, 
sidewalks,  lanes,  alleys,  market  places,  and 
other  public  grounds  within  the  corporate 
limits,"  authorize  a  railway  company  to  con- 
struct its  track  along  one  of  the  city  streets. 
Ruttles  V.  Covington,  {Ky.)  38  Am.  &*  Eng 
R.  Cas.  408,  10  S.  W.  Rep.  644. 

It  seems  that  converting  the  streets  of  a 
city  to  ordinary  railroad  purposes  is  devot- 
ing them  to  an  exclusive  use,  and  cannot 
be  permitted  without  express  authority  of 
the  legislature.  New  York  &»  H.  R.  Co.  v. 
Mayor,  etc.,  of  N.  Y.,  i  Hilt.  {N.  Y.)  562. 

72.  Power  to  be  strictly  construed.* 
— The  Constitution  and  statute  contemplate 
the  use  of  streets  in  the  city  of  Denver  by 
ordinary  railroads,  and  there  is  clearly  im- 
plied, if  not  express,  legislative  sanction 
empowering  the  city  council  to  permit  such 
use.  Under  the  statute  this  use  is,  however, 
an  unusual  and  extraordinary  use  ;  and  the 
authority  of  the  council  to  permit  the  use  is 
a  "special  power."  There  is  a  distinction, 
as  to  the  abutting  owner's  right  to  compen- 
sation, between  such  use  and  the  reasonable 
and  careful  improvement  of  the  street  for 
local  convenience  and  traffic.  Denver  &» 
S.  F.  R.  Co.  v.  Domke,  36  Am.  6*  Er^.  R. 
Cas.  155,  II  Colo.  247,  17  Pac.  Rep.  777.— 
Followed  in  Denver,  U.  &  P.  R.  Co. ». 
Barsaloux,  15  Colo.  290. 

*  See  also  post,  89. 


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STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  73-76. 


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73.  Construction  of  Illinois  stat- 

ntes.— The  clause  in  the  city  act  that  "  the 
city  council  shall  have  no  power  to  grant 
the  use  of,  or  the  right  to  lay  down  any 
railroad  tracks  in,  any  street "  of  the  city, 
"  except  upon  petitions  of  the  owners  of  the 
lands  representing  more  than  one  half  of 
the  frontage  of  the  street,  or  so  much 
thereof  as  is  sought  to  be  used  for  railroad 
purposes,"  has  reference  only  to  cases  where 
the  city  may  propose  to  grant  the  privilege 
to  a  railroad  company  to  run  along  a  street 
for  a  given  distance,  and  not  to  a  case  where 
the  road  merely  crosses  a  street.  Chicago 
&*  IV.  I.  R.  Co.  v.  Dunbar,  $  Am.  &*  Eng. 
R.  Cas.  253.  100  ///.  1 10. 

The  General  Railroad  Act  of  1849,  §  26, 
authorizing  county  or  town  officers  having 
charge  of  lands  belonging  to  their  county 
or  town  to  grunt  rights  of  way  over  the 
same  to  railroads,  has  application  only  to 
lands  which  belong  to  counties  and  towns 
as  owners  thereof,  and  not  to  lands  held  for 
a  street  or  highway.  Pittsburg,  Ft.  W.  &* 
C.  R.  Co.  v.  Reich,  loi  ///.  157. 

Where  a  company  lays  its  track  in  a  city 
street,  having  the  right  to  construct  a  track 
for  passenger  cars  only,  the  city,  undeir  the 
General  Law,  art.  5,  §  62,  clause  90,  has  no 
power  afterward  to  grant  the  use  of  the 
track  for  the  operation  of  freight  cars  upon 
it,  except  upon  a  petition  of  prpperty  owners 
upon  the  street,  as  required  in  the  statute, 
and  a  grant  of  the  use  of  such  track  for 
freight  purposes  without  the  petition  of 
property  owners  being  void,  such  use  is  un- 
lawful and  a  public  nuisance,  which  the 
state  may  cause  to  be  abated.  McCartney 
v.  Chicago  &*  E.  R.  Co.,  29  Am.  &*  Et^^. 
R.  Cas.  326,  112  ///.  611. 

A  city  council,  under  the  General  Incor- 
poration Act,  may  grant  to  private  individ* 
uals  or  to  a  private  corporation  the  right 
to  lay  tracks  in  the  streets,  connecting  with 
public-railway  tracks  previously  laid,  and 
extending  to  the  manufacturing  establish- 
ments or  warehouses  of  those  laying  the 
tracks.  In  such  case  the  tracks  so  laid  be- 
come, in  legal  contemplation,  part  of  the 
railway  with  which  they  connect,  and  are 
open  to  the  public,  and  subject  to  public 
control  ;n  all  respects  as  other  railway 
tracks.  Chicago  D.  6-  C.  Co.  v.  Garrity, 
115  ///.  15s,  3  A^  E.  Rep.  448. 

The  General  Incorporation  Law,  art.  5,  § 
I,  clause  90,  "that  the  city  council  or  board 
of  trustees  shall  have  no  power  to  grant  the 


use  of,  or  the  right  to  lay  down  any  railroad 
tracks  in,  any  street  of  the  city  to  any  steam 
or  horse  railroad  company,  except  upon  a 
petition  of  the  owners  of  the  land,"  is  to  be 
construed  as  including  both  corporations 
and  individuals.  The  word  "company,"  in 
the  clause,  must  be  held  to  embrace  natural 
persons  as  well  as  corporations.     Chicago 

D.  &*  C.  Co.  v.  Garrity,  115  ///.  155.  3  N. 

E.  Rep.  448. 

74.  Necessity  of  consent  of  adjoin- 
ing owners. — A  city  may  grant  a  right  of 
way  along  one  of  its  streets  to  a  railroad 
company  without  the  consent  of  adjacent 
lot  owners.  Jngrakam  v.  Chicago,  D,  &* 
M.  R.  Co.,  34  Iffwa  249,  5  Am.  Ry.  Rep.  99. 

A  provision  in  a  municipal  charter  that 
the  common  council  may  authorize  railroad 
tracks  in  the  streets,  upon  the  consent  of  a 
majority  of  the  abutting  landowners,  does 
not  authorize  a  track  by  a  manufacturing 
corporation,  to  be  used  as  a  steam  railroad, 
authorized  by  a  city  ordinance,  but  without 
the  consent  of  the  abutting  property  owners. 
Chamberlain  v.  Elizabethport  Steam  Cordage 
Co.,  41  N./.  Eg.  43,  2  Atl.  Rep.  77$. 

Where  a  city  charter  confers  upon  its 
common  council  power  to  permit  the  track 
of  a  railroad  to  be  laid  in,  along,  or  across 
any  street  or  public  ground,  this  must  be 
construed  as  subject  to  the  qualification 
that  no  property  rights  of  abutting  owneis 
are  thereby  invaded.  Reining  v.  JVew  York, 
L.  &*  W.  R.  Co.,  50  Am.  S-  Eng.  R.  Cas. 
205.  128  A';  Y,  157,  28  N.  E.  Rep.  640,  40  N. 
Y.  S.  R.  401 ;  affirming  35  N.  Y.  S.  R.  731, 
13  AT.  Y.  Supp.  238. 

75.  Limits  and  exceptions  to  the 
power. — Under  Georgia  Acts  of  1827  and 
1828,  providing  for  laying  off  the  town  of 
Columbus,  a  tract  of  1200  acres  was  ded- 
icated as  a  common  for  the  use  of  the 
town.  Held,  that  this  was  not  a  common 
of  pasture,  estovers,  etc.,  but  a  common 
appurtenant  to  the  town,  and  for  its  ad- 
vancement and  commercial  prosperity;  and 
it  is  within  the  power  of  the  town  to  grant 
a  right  of  way  for  a  railroad  across  the 
common,  and  a  site  for  necessary  depot 
buildings.  Crawford  v.  Mobile  &*  G  R. 
Co.,  67  Ga.  405. 

In  permitting  a  street  to  be  used  for  the 
laying  of  railroad  tracks  for  the  purpose  of 
operating  trains  over  the  same,  a  city  has  no 
right  so  to  obstruct  the  street  as  to  deprive 
the  public  and  adjacent  property  holders  of 
its  use  as  a  highway.    It  is  not  competent 


1 


STREETS   AND   HIGHWAYS   (RAILWAYS  IN),  76-79. 


571 


for  a  city  to  authorize  such  use  of  a  street 
as  will  destroy  it  as  a  thoroughfare  for  the 
public  use.  Ligare  v.  Chicago,  139  ///.  46, 
28  N.  E.  Rep.  934. 

A  city  council  has  no  authority  to  grant 
to  a  company  a  right  of  way  over  private 
property,  nor  over  a  proposed  extension  of 
a  street  which  has  not  yet  been  opened  or 
extended.  Wichita  &*  IV.  K.  Co.  v.  Fech- 
heimer,  36  Kan,  45,  12  Pac.  Hep.  362. 

By  the  charter  of  the  city  of  New  Yorlc 
granted  in  1830,  the  legislative  power  of  the 
city  was  vested  in  a  board  of  aldermen  and 
a  board  of  assistants,  who  together  should 
form  the  common  council.  Held,  that  the 
adoption  of  a  resolution  or  ordinance  de- 
pended upon  the  concurrence  of  the  two 
bodies.  So  where  the  board  of  assistants 
of  one  year  pass  a  resolution  authorizing 
the  construction  of  a  railroad  on  certain 
streets,  it  cannot  be  taken  up  by  the  alder- 
men of  the  following  year  and  passed  so  as 
to  give  it  the  force  of  a  law.  Wetmore  v. 
Story,  22  Barb.  {N.   V.)  414. 

A  railway  corporation  cannot  be  author- 
ized under  Oreg.  Laws,  530,  §  26,  to  appro- 
priate a  public  street  or  road  to  its  use, 
unless  such  road  or  street  has  been  legally 
established,  according  to  some  mode  pre- 
scribed by  statute.  Burns  v.  Multnomah 
R.  Co.,\o  Am.  &*  Eng,  R.  Cas.  289, 8  Sawy. 
(l/,S.)SA3<^Sfed.Rep.  177  • 

Where  a  statute  under  which  a  borough 
is  la.d  out  provides  that  the  streets,  lanes, 
and  alleys  thereof  shall  forever  be  and  re- 
main public  highways,  the  borough  authori- 
ties have  no  power  to  modify  or  repeal  the 
statute  by  ordinance,  as  by  granting  permis- 
sion to  lay  railroad  tracks  in  the  highways. 
Com.  V.  Erie  &*  N.  E.  R.  Co.,  27  Pa.  St, 
339.— Quoted  in  Millvale  v.  Evergreen  R. 
Co.,  46  Am.  &  Eng.  R.  Cas.  219,  131  Pa.  St. 
I ;  Philadelphia,  W.  &  B.  R.  Co.  v.  Phila- 
delphia, 9  Phila.  (Pa.)  563. 

76.  Power  limited  to  public  rail- 
roads only. — A  general  power  granted  to 
a  city  to  regulate  the  use  of  streets  extends 
to  public  uses  only,  and  does  not  authorize 
an  ordinance  permitting  the  construction  of 
a  railroad  track  and  the  operation  of  trains 
on  the  streets  for  the  transaction  of  pri- 
vate business.  Glaessner  v.  Anheuser-Busch 
Brew.  Assoc.,  too  Mo.  508, 13  5.  W^.  Rep,  707, 

77.  City  cannot  enlarire  rights  held 
under  legislative  grant.*  —  A  munici- 

*  See  also  post,  85. 


palily  cannot  enlarge  the  rights  of  a  railroad 
company  by  giving  it  terminal  rights  in  a 
street  where,  by  legislative  grant,  it  is  con- 
fined to  a  mere  right  of  passage.  Methodist 
Episcopal  Church  v.  Pennsylvania  R.  Co.,  50 
Am,  &>  Eng.  R.  Cas.  217, 48  A^.  /.  Eq.  452,  22 
Atl.  Rep.  183.  —  Distinguishing  Beseman 
V.  Pennsylvania  R.  Co.,  50  N.  J.  L.  235. 

78.  Contracts  with  city  for  use  of 
streets.  —  By  voluntary  agreement  a  city 
may  grant  the  same  rights  to  occupy  streets 
and  public  grounds  as  a  railroad  company 
could  acquire  under  a  general  right-of-way 
act.  Ingram  v.  Chicago,  D.  &■»  M.  R.  Co.,  38 
Jffwa  669.— Following  Cook  v.  Burling- 
ton, 36  Iowa  357. 

After  a  company  had  been  refused  per- 
mission to  use  certain  streets,  it  entered  into 
a  contract  with  the  town  by  which  it  was 
authorized  to  lay  its  track  on  certain  streets, 
on  condition  that  it  would  extend  its  road 
to  a  certain  distance  beyond  the  town.  Un- 
der the  statutes  of  the  state,  the  company 
had  a  right,  after  being  refused  by  tne  town, 
to  apply  to  the  state  engineer  for  the  desig- 
nation of  a  route  through  the  town.  Held, 
that  the  contract  between  the  company  and 
the  town  was  neither  illegal  nor  ultra  vires 
as  to  either.  The  town  had  a  right  to  make 
such  a  contract,  and  even  if  it  were  ultra 
vires,  the  company  could  not  take  advantage 
thereof  after  accepting  the  benefits  of  the 
contract.  Indianola  v.  Gulf,  W.  T,  &>  P. 
R.  Co.,  II  Am,  &»  Eng.  R.  Cas.  314,  56 
Tex.  594. 

The  provision  of  the  Texas  statutes  that 
a  company  may  use  the  public  streets  or 
alleys  of  a  city  without  paying  therefor,  and 
that  in  the  event  of  disagreement  as  to 
which  streets  should  be  used,  the  dispute 
shall  be  settled  by  the  state  engineer,  does 
not  operate  to  prevent  a  company  from  mak- 
ing a  contract  with  a  city  for  the  use  of 
certain  streets,  nor  prevent  the  city  from  en- 
tering into  such  contract ;  and  therefore  a 
consideration  named  for  such  a  contract  is 
not  illegal.  Indianola  v.  Indianola  R.  Co., 
2  Tex.  Unrep,  Cas.  337. 

A  municipal  corporation  may  grant  a  per- 
petual franchise  for  a  right  of  way  over  its 
streets.  Sea! tie  v.  Columbia  &*  P.  S.  R.  Co., 
6  Wash.  379,  33  Pac.  Rep.  1048. 

70.  Conveyance  of  public  com- 
mon or  of  right  of  way  thereon.— A 
lease  to  a  company,  by  a  municipal  corpora- 
tion, of  a  public  common  within  the  city, 
there  being  a  reservation  of  right  of  way 


m 


■it  I.  '}. 


i  i 


1 1)1-1'-^ 


1: 


iy    I 


i/i-  'M 


i 


672 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  80-83. 


over  the  common,  to  a  bridge  abutting  on 
said  common,  and  providing  for  the  repair 
of  the  road  leading  over  the  common  to  the 
bridge,  is  within  the  power  of  the  city  coun- 
cil, and  an  action  by  the  owners  of  property 
abutting  on  the  common,  for  obstructing 
travel  in  a  straight  line  from  the  end  of  the 
bridge  to  thcr  property,  will  not  lie  against 
the  railway  company.  P/a/i  v.  Chicago,  B. 
&*  Q.  R.  Co.,  (Iowa)  31  A',  W.  Rep.  883. 

A  law  providing  that  "if  it  shall  become 
necessary  to  lay  a  railroad  on  any  road,  street, 
alley,  or  public  highway  or  ground,  the 
public  authorities  owning,  or  havitig  charge 
thereof,  may  agree  upon  the  terms  " — held 
not  to  authorize  city  authorities  to  consent 
to  the  building  of  a  railroad  on  a  common 
laid  out  by  the  state,  and  reserved  forever 
to  the  use  of  the  inhabitants.  Bell  v.  Ohio 
6*  P.  R.  Co.,  I  Grant's  Cas.  (Pa.)  105. 

An  act  of  the  legislature  in  laying  out  a 
town  reserved  100  acres  "  for  a  common 
pasture."  A  subsequent  act  conveyed  the 
title  of  the  commonwealth  to  the  town,  sub- 
ject to  the  easement  of  the  lot  holders,  and 
for  such  public  uses  as  were  recited  in  the 
original  act,  and  such  as  the  common  coun- 
cil might  ordai  I.  Held,  that  this  authorized 
the  municipal  authorities  to  grant  to  a  com- 
pany a  portion  of  the  land  for  a  right  of  way. 
Mayor,  etc.,  of  Allegheny  v.  Ohio  &'  P.  R. 
Co.,  26  Pa.  St.  35". 

If  a  company  stops  its  trains  on  a  com- 
mon, for  the  purpose  of  receiving  and  dis- 
. charging  freight  and  passengers,  and  does 
not  provide  necessary  and  suitable  accom- 
modations within  its  prescribed  limits,  the 
common  being  thus  trespassed  upon  by  its 
agents  or  customers,  the  company  becomes 
a  party  to  the  intrusion.  Mayor,  etc.,  of 
Allegheny  v.    Ohio  6-  P.   R.   Co.,   26   Pa. 

St.  355- 
80.  Power  to  grant  land  for  depot 

purposes.— Georgia  Acts  1857,  page  182, 
conferring  upon  municipal  corporations 
power  or  authority  to  grant  or  sanction  en- 
croachments on  their  streets  for  reasonable 
compensation  in  money,  does  not  confer  the 
right  or  authority  to  grant  to  a  company  a 
block  of  land  80  feet  wide  and  480  feet 
long,  in  one  of  the  busiest  parts  of  the  city, 
for  depot  purposes,  to  the  injury  of  adjoin- 
ing property  holders.  Daly  v.  Georgia 
Southern  (S-  F.  R.  Co.,  36  Am.  &»  Eng.  R. 
Cas.  20. 80  Ga.  793,  7  5'.  E.  Rep.  146.— Fol- 
lowed IN  Davis  V.  East  Tenn.,  V.  &  G.  R. 
Co.,  87  Ga.  605. 


81.  Tunnels  and  open  cuts.— Under 
Md.  Act  of  1890,  ch.  139,  authorizing  a  com- 
pany to  construct  a  railroad  in  a  tunnel  in 
the  city  of  Baltimore,  and  empowering  the 
mayor  and  city  council,  by  ordinance,  to 
designate  the  route  of  said  railroad,  and  to 
describe  the  mode,  terms,  and  conditions  of 
its  construction,  the  mayor  and  city  council 
may  confer  upon  the  company,  by  ordinance, 
power  to  construct  any  part  of  its  road  in  a 
street  of  the  city  by  way  of  open  cuts. 
O'Brien  v.  Baltimore  Belt  R.  Co.,  50  Am.  6- 
Eng.  R.  Cas.  194,  74  Md.  363,  22  Ail.  Rep. 
141.-  Quoting  Baltimore  &  P.  R.  Co.  v. 
Fifth  Baptist  Church,  108  U.  S.  317. 

c.  Validity  and  Effect  of  Ordinances  and 
Resolutions. 

82.  Enactment  and  publication  of 
ordinances.  —  The  recognition  by  a  city 
for  over  twenty  years  of  a  resolution  grant- 
ing a  right  to  lay  tracks  in  certain  streets, 
and  its  acquiescence  thereunder,  afford  pre- 
sumptive evidence  of  its  due  publication, 
if  such  proof  were  necessary  to  give  it  force. 
Quincy  v.  Chicago,  B.  &*  Q.  R.  Co.,  92  ///.  21. 

Under  III.  General  Incorporation  Law, 
art.  3,  §  13,  the  yeas  and  nays  are  required 
to  be  taken  upon  the  passage  of  all  ordi- 
nances, etc.,  and  the  concurrence  of  a  ma- 
jority of  all  the  members  elected  to  the  city 
council  shall  be  necessary  to  the  passage 
of  any  ordinance  or  proposition,  except  that 
in  case  of  the  sale  of  city  or  school  prop- 
erty a  vote  of  two  thirds  of  all  the  mem' 
bers  elected  is  required.  Therefore,  by  the 
provisions  of  the  General  Incorporation 
Law,  a  majority  vote  only  of  the  members 
of  the  city  council  is  required  to  grant  the 
privilege  of  laying  a  railroad  track  in  a 
street  of  a  city,  and  this  being  inconsistent 
with  the  provisions  of  the  amended  charter 
of  the  city  of  Chicago  of  1867,  on  the  same 
subject,  requiring  a  vote  of  three  fourths  of 
all  the  aldermerj  elected,  the  latter  is  re- 
pealed. Chicago  D.  6-  C.  Co.  v.  Garrity, 
II S  ///.  1 55.  3  N.  E.  Rep.  448. 

83.  Ordinances,  how  construed.* 
— A  proviso,  in  a  city  ordinance  granting- 
privileges  to  a  railroad,  that  such  railroad 
should  be  subject  to  all  laws  and  ordinances 
that  might  thereafter  be  passed  to  regulate 
railroads  in  the  city,  only  means  that  the 

*  What  amounts  to  permission  to  use  streets 
for  railway  purposes,  see  33  Am.  &  Eno.  R. 
Cas.  270,  abstr. 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  84= 


673 


company  shall  be  subject  to  all  reasonable 
and  legal  ordinances  for  the  regulation  of 
the  road.  It  has  no  such  scope  as  that  the 
company  should  abandon  or  take  up  and 
remove  its  track  at  the  bidding  of  the  com- 
mon council.  Chicago,  R.  /.  &-  P.  R.  Co,  v. 
Joliet,  79  ///.  25.— Quoting  Yates  v.  Mil- 
waukee, 10  Wall.  (U.  S.)  505. 

Where  a  city  grants  to  a  railroad  rights 
of  user  of  parts  of  four  streets  for  tracks, 
by  four  separate  and  distinct  paragraphs, 
each  granting  a  right  and  privilege,  and 
immediately  after  the  last  grant  it  is  pro- 
vided, "  said  right  and  privilege  to  be  en- 
joyed and  exercised  until,"  etc.,  limiting 
the  same  in  respect  of  time,  the  limitation 
will  be  construed  to  apply  only  to  the  last 
of  the  four  grants.  Quincy  v.  Chicago,  B. 
6-e.  R.  Co.,  ^\  III.  537- 

A  permission  to  a  company  to  occupy  a 
public  street  with  its  tracks  must  plainly 
appear,  and  not  be  left  to  be  derived  by 
doubtful  implication,  from  the  generality  of 
the  language  used,  which  does  not  unmis- 
takably manifest  the  intention  to  give  such 
permission.  Chicago,  D.  &•  V.  R.  Co.  v. 
Chicago,  121  ///.  176,  II  N,  E.  Rep.  ^7,  9 
West.  Rep.  493  ;  affirming  20  ///.  App.  665. 
— Quoting  Moses  v.  Pittsburgh,  Ft.  W.  & 
C.  R.  Co.,  21  111.  515  ;  St.  Louis,  V.  &  T.  H. 
R.  Co.  V.  Haller,  82  111.  208. 

A  city  ordinance,  after  a  careful  mention 
and  specification  of  what  streets  might  be 
used  by  a  company  in  which  to  lay  down  its 
tracks  and  side  tracks,  contained  a  general 
clause  giving  authority  also  to  lay  down  all 
such  tracks  "  as  may  be  necessary  to  the 
convenient  use  of  any  denjt  grounds  said 
company  may  now  own  or  hereafter  acquire 
in  the  vicinity  of  or  adjoining  said  line  of 
road,"  without  the  specific  mention  of  any 
streets.  Held,  that  such  general  clause  gave 
no  authority  in  respect  to  the  use  of  streets 
additional  to  those  which  had  been  specifi- 
cally named  in  the  preceding  part  of  the 
ordinance.  Chicago,  £>.&*  V.R.  Co.  v.  Chi- 
cago, 121  ///.  176,  II  N.  E.  Rep.  907,  9  West. 
R'P-  493  ;  affirming  20  ///.  App.  665. 

An  ordinance  or  resolution  of  a  city  ap- 
propriated certain  streets  to  a  company, "  so 
far  as  the  said  company  may  require  to  ap« 
propriate  the  same  in  crossing  them,  in  the 
construction  of  their  railroad  track,  switches, 
turntables,  etc.,  and  other  machinery  and 
fixtures  to  ^?  used  or  employed  by  them  in 
operatiu^  their  said  road,  subject,  however, 
tc  this  proviso :  that  the  same  shall  be  oc- 


cupied with  as  little  detriment  and  incon- 
venience to  the  public  as  possible,"  and 
requiring  the  crossings  to  be  so  graded  as  to 
make  any  embankment  that  should  be  made 
no  obstr<-  nion.  Held,  that  this  was  but  a 
provision  for  a  joint  use  with  the  public 
having  occasion  to  use  the  streets  by  other 
modes  of  travel.  St.  Louis,  A.&'  T.  H.  A'. 
Co.  V.  Belleville,  32  Am.  (S-  Eng.  R.  Cas.  278, 
122  ///.  376,  12  N.  E.  Rep.  680,  10  West. 
Rep.  605.— Quoted  in  Rice  v.  Chicago,  B. 
&  N.  R.  Co.,  30  111.  App.  481. 

In  an  ordinance  of  a  city  authorizing  de- 
fendant company  to  construct  its  road  "on, 
over,  and  along  "  certain  alleys,  and  "  along  " 
the  alley  in  question,  the  word  "  along  "  is 
used  synonymously  ivith  "  on  "  and  "  over," 
and  not  in  the  sense  of  "  by  the  side  of." 
Heath  v.  Des  Moines  &»  St.  L.  R.  Co.,  10 
Am.  &»  Eng.  R.  Cas.  313,  61  Iowa  11,  15  N. 
W.  Rep.  573. 

84.  Validity  of  ordinances,  and 
how  questioned.— Courts  cannot,  at  the 
suit  of  a  private  party,  no  fraud  being  im- 
puted to  the  municipal  authorities,  in  a 
collateral  proceeding,  i^..ore  or  modify  an 
ordinance  granting  the  use  of  a  street  for 
ordinary  railroad  purposes  on  the  ground  of 
deception  connected  with  its  original  adop- 
tion. Denver  &*  S.  F.  R.  Co.  v.  Domke,  36 
Am.  &•  Eng.  R.  Cas.  155,  11  Colo.  247,  17 
Pac.  Rep.  777. 

The  only  authority  that  can  call  in  ques- 
tion the  right  of  a  company  to  construct  its 
track  across  or  along  a  street  or  highway 
within  an  incorporated  city  or  village  is 
such  city  or  village.  The  county  authouties 
cannot  even  question  the  validity  of  a  city 
or  village  ordinance  for  the  construction 
of  a  railroad  within  such  city  or  village. 
Cook  County  V.  Great  Western  R,  Co.,  119 
///.  2i8,  io;V^.  £•.  Rep.  564. 

The  municipal  authorities  of  the  city  of 
Chicago  passed  an  ordinance  permitting  a 
certain  company  to  construct  one  or  more 
tracks,  commencing  at  the  southern  line  of 
the  city  "  at  some  point  within  100  feet  of 
the  west  line  of  Stewart  avenue,  and  thence 
northwardly  *  ♦  *  parallel  to  said  avenue 
to  its  intersection  with  Grove  street ;  thence 
to  such  terminus  as  it  may  establish  be- 
tween the  east  bank  of  the  southern  branch 
of  the  Chicago  river  and  the  west  side  of 
State  street,  and  between  Sixteenth  street 
and  the  south  line  of  Van  Buren  street." 
Held,  that  such  ordinance  was  void  for 
being  too  indefinite.    Hickey  v.  Chicago  &* 


S' '  ii^  I 


WMLJM 


674  STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  80-87. 


fV.  I.  R.  Co.,  6  ///.  App.  172,  — Quoting 
Davis  V,  Mayor,  14  N.  Y.  506. 

A  company  which  has,  by  its  charter, 
general  power  to  build  its  road  along  or 
across  the  streets  of  a  city,  is  not  estopped 
from  asserting  the  power  to  build  on  a  par- 
ticular street  by  the  fact  that  it  has  once 
solicited  and  obtained  from  the  city  au- 
thorities an  ordinance  permitting  it  to  lay 
and  use  a  track  on  that  street  for  a  lim- 
ited  time,  and  has  actually  laid  and  used 
it,  as  permitted  by  the  ordinance.  The  city 
has  no  power  to  authorize  the  use  of  any 
street  for  a  railroad.  Such  an  ordinance  is 
therefore  a  nullity,  and  cannot  create  be- 
tween the  city  and  the  company  the  rela- 
tion of  licensor  and  licensee,  so  as  to  make 
the  company's  action  amount  to  an  accept- 
ance of  a  license.  Atlantic  &>  P.  R.  Co.  v. 
St,  Louis,  66  Mo.   228;   reversing    3  Mo, 

App.  315- 

By  New  York  Act  of  April  6,  1832,  de- 
fendant company  was  authorized  to  extend 
its  road  along  Fourth  avenue  to  Fourteenth 
street  in  the  city  of  New  York,  and  through 
such  other  streets  as  the  mayor,  from  time 
to  time,  might  permit.  Held,  that  this  did 
not  authorize  a  subsequent  ordinance  of  the 
common  council  which  authorized  the  com- 
pany to  lay  its  track  in  various  streets  ex- 
tending a  long  distance  below  Fourteenth 
street.  People  v.  New  York  6-  H.  R.  Co., 
45  Barh.  (IV.  Y.)  73- 

85.  Conclusiveness— Enlargement 
of  privilege.*  —  The  passage  by  a  city 
of  an  ordinance  granting  permission  to  a 
company  to  lay  down  tracks  in  certain 
streets,  which  is  accepted,  with  a  resolution 
of  such  company  that  the  p  oper  construc- 
tion of  the  ordinance  is  that  the  permission 
granted  thereby  is  to  operate  in  the  city 
cars  with  animal  power  only,  and  that  the 
company  shall  not  connect  with  any  other 
railroad  on  which  other  power  is  used,  does 
not  create  a  contract,  between  the  people 
represented  by  the  city  and  the  company, 
to  abandon  for  all  time  to  come  the  use  of 
steam  as  a  motive  power  within  the  city; 
but  such  company  may  afterwards,  on  per- 
mission of  the  city,  use  steam.  Such  ordi- 
nance and  its  acceptance  confer  a  limited 
right  or  privilege,  but  do  not  prohibit  the 
acquisition  of  a  more  enlarged  one  in  the 
future.  McCartney  v.  Chicago  &*  E.  R.  Co., 
29  Am.  &*  Eng.  R.  Cas.  326,  112  ///.  611. 

*  See  alio  ante,  77* 


An  ordinance  of  a  city,  granting  a  right 
of  way  for  a  railroad  along  a  street,  but  re- 
stricting the  company  to  the  use  of  the  north 
side  of  the  street,  is  not  prohibitory  in  such 
a  sense  that  its  repeal  is  necessary  to  the 
validity  of  a  subsequent  resolution  giving 
the  company  a  right  to  use  the  south  side 
of  the  street  for  another  track.  Merchants' 
Union  Barb  Wire  Co.  v.  Chicago,  B.  &*  Q.  R. 
Co.,  70  Iowa  105,  28  A^.  W.  Rep.  494. 

An  act  of  the  legislature  authorized  plain- 
tiff company  to  build  a  lateral  road  in  the 
city  of  Baltimore,  upon  obtaining  the  con- 
sent of  the  city  government.  The  city  au- 
thorities passed  an  ordinance  consenting  to 
the  construction  of  the  road,  but  retained 
the  right  to  regulate  its  construction  and 
use.  Held,  that  the  right  to  consent  or 
object  to  the  road  carried  with  it  the  right 
to  impose  terms  upon  the  company ;  and 
the  company  was  bound  to  conform  to  the 
regulations  of  the  city.  Northern  C.  R.  Co. 
V.  Mayor,  etc.,  of  Baltimore,  21  Md.  93. 

86.  Resolution  sufficient  —  Ordi" 
nance  unnecessarj'.— Where  a  city,  un- 
der a  resolution  adopted,  conveys  a  street 
absolutely  to  a  railway,  the  resolution  and 
deed  will  give  to  the  company  the  right  to 
construct,  maintain,  and  operate  its  tracks 
upon  the  street,  even  when  its  charter  pro- 
vides that  it  may  carry  these  powers  into 
effect  by  ordinances.  Quincy  v.  Chicago,  B. 
&*  Q.  R.  Co.,  92  ///.  21. 

Under  Iowa  Code,  §  464,  a  city  may  grant 
to  a  company  a  right  of  way  in  its  streets,  by 
resolution  or  vote  duly  recorded.  An  ordi- 
jiance  is  not  necessary.  Merchants'  Union 
Barb  Wire  Co.  v.  Chicago,  B.  &>  Q.  R.  Co., 
70  Iowa  105,  28  A'.  W.  Rep.  494. 

d.  What  Rights  Pass.    Conditions. 

87.  What  tbe  grant  carries  with  it, 
generally.*  —  In  Illinois  an  incorporated 
municipality  owns  the  land  in  its  streets, 
and  when  it  authorizes  a  company  to  con- 
struct and  operate  a  railroad  in  a  street,  the 
company  acquires  the  right  to  build  and 
operate  such  road  without  interference  by 
the  public  or  individuals,  subject,  however, 

*  What  grant  of  right  to  lay  track  in  streets 
carries  with  it.  Use  of  street  as  depot,  see  note, 
46  Am.  &  Eng.  R.  Cab.  hi. 

Where  railroad  ffiti  be  deemed  as  having  the 
implied  authority  to  tunnel  under  a  street  from 
grant  and  from  necessity,  see  3a  Am.  &  Eng.  R. 
Cas.  263,  abttr. 


STREETS  AND  HIGHWAYS   (RAILWAYS  IN),  88-90. 


575 


to  the  liability  to  respond  to  the  owners  of 
land  abutting  on  the  streets  for  juch  inju- 
ries sustained  by  them  in  consequence  there- 
of as  are  to  be  deemed  legal  elements  of 
damage.  Chicago  &*  IV.  I.  /?.  Co.  v.  Berg, 
lo  ///.  App.  607.— Quoting  Chicago  &  E.  I. 
R.  Co.  V.  Hall,  8  111.  App.  621.— Followed 
IN  Cliicago  &  W.  I.  R.  Co.  v.  George,  10  111. 
App.  646 ;  Chicago  &  W.  I.  R.  Co.  v.  Phil- 
lips, 10  III.  App.  648. 

A  grant  to  a  company  of  power  to  con- 
siruct  its  road  upon  or  across  a  highway 
which  the  route  of  its  road  may  intersect, 
the  corporation  to  restore  the  road  or  high- 
way to  its  former  state,  ur  so  near  that  state 
as  not  to  impair  its  usefulness,  is  equivalent 
to  allowing  a  joint  use  of  the  highway  by 
the  company  and  the  public.  Pittsburg,  Ft. 
W.  Sr*  C.  A\  Co.  V.  /feic/t,  loi  ///.  157. 

A  city,  being  desirous  of  having  the  loca- 
tion of  a  railroad  changed  in  certain  parts 
of  the  city,  agreed  to  furnish  a  ro  uiued  if 
the  company  would  make  the  change.  Ac- 
cordingly the  city  cond^^mned  a  strip  of  no 
feet,  described  as  "  for  railroad  and  sewer 
purposes."  After  constructing  a  roadbed 
thereon  the  city  conveyed  it  to  tlie  company, 
describing  it  as  the  "  roadbed,  bridges,  and 
right  of  way."  J/etd,  that  the  company 
took  nothing  but  the  roadbed.  Lofig  v. 
Louisville  <S-  A^.  R.  Co.,  {Ky.)  14  S.  W. 
Ktp.  78. 

88.  The  easement  iicqiiired.  —  A 
clause  in  a  grant  excepting  the  sidewalk  of 
a  street  from  use  by  the  company  for  tracks 
or  otherwise,  and  requiring  the  company 
so  to  grade  the  streets  in  whicii  the  privi- 
leges are  granted,  and  so  to  lay  its  tracks 
thereon,  that  carriages,  wagons,  drays,  and 
vehicles  of  all  kinds  may  conveniently  cross 
the  same,  is  conclusive  evidence  that  a 
conveyance  or  grant  of  the  fee  in  the  street 
was  not  intended,  but  simply  of  a  right  or 
privilege  for  the  use  of  that  part  of  the 
street  occupied  by  the  company  for  tracks. 
Chicago,  B.  &*  Q.  R.  Co.  v.  Quincy,  139  ///. 
355,  28  A'.  E.  Rep.  1069. 

Where  a  company  lays  its  tracks  on  a 
street,  under  authority  from  the  town,  it 
acquires  a  perpetual  easement  in  the  street, 
consisting  of  the  right  to  maintain,  use,  and 
enjoy  its  railroad  free  from  hindrance  or 
molestation,  save  such  as  is  incident  to  the 
proper  and  ordinary  use  of  the  street  by  the 
public  ;  and  such  easement  is  property,  and 
as  much  protected  from  unlawful  invasion 
as  any  other  property.    Chiec^o  &•  W.  I.  R. 


Co.  V.  Chicago,  St.  L.  &*  P.  R.  Co.,  15  ///. 
App.  587. 

80.  Bute  of  otrlct  construction  in 
favor  of  public.'*'  —  A  grant  to  a  com- 
pany of  special  privileges  in  the  use  of  pub- 
lic streets  is  to  be  construed  strictly  against 
the  grantee  and  liberally  In  favor  of  the  pub- 
lic ;  and  nothing,  therefore,  can  be  implied 
in  favor  of  the  grantee  beyond  the  express 
letter  of  the  grant,  unless  it  shall  be  indis- 
pensable to  give  effect  to  the  grant.  Chi' 
cago,  B.  &*  Q.  R.  Co.  v.  Quincy,  139  ///.  355, 
28  N.  E.  Rep.  1069. 

A  grant  to  a  corporation  by  a  county 
court,  under  Oreg.  Corporation  Act,  §  26,  of 
the  use  of  a  street  for  the  purpose  of  con- 
structing and  operating  a  railway  thereon, 
is  a  grant  of  a  franchise,  and  the  order  or 
agreement  making  th£  same  must  be  con- 
strued most  strongly  against  the  corporation 
and  in  favor  of  the  public,  so  that  nothing 
shall  pass  thereby  but  what  clearly  appears 
to  have  been  intended.  Burns  v.  Multno- 
mah R.  Co.,  10  Am.  &*  Eng.  R.  Cas.  289,  8 
Satvy.  {[/,  S.)  543,  15  Fed.  Rep.  177. 

A  grant  of  a  right  of  way  fifty  feet  wide 
for  a  railroad,  through  a  small  strip  of  land 
in  a  densely  populated  city,  will  only  con« 
vey  so  much  ground  as  Is  necessary  for  the 
line  of  the  road,  and  will  not  carry  by  im- 
plication the  right  to  erect,  within  such  line, 
depots,  car-houses,  or  other  structures  for 
the  convenience  or  business  of  the  road. 
Mayor,  etc.,  ofAll^heny  v.  Ohio  6-  P.  R.  Co., 
26  Pa.  St.  355.— Applied  and  quoted  in 
Pennsylvania  S.  V.  R.  Co.  v.  Philadelphia 
&  R.  R.  Co.,  157  Pa.  St.  42.  Reviewed  in 
Junction  Pass.  R.  Co.  v.  Williamsport  Pass. 
R.  Co.,  154  Pa.  St.  116. 

Such  grant  does  not  confer  on  the  com- 
pany the  right  to  permit  cars  and  locomo- 
tives to  remain  on  the  tracks  within  the  fifty 
feet  for  a  longer  time  than  is  necessary  to 
receive  and  discharge  freight  and  passen- 
gers. Mayor,  etc.,  of  Allegheny  v.  Ohio  &* 
P.  R.  Co.,  26  Pa.  St.  355. 

00.  Bights  aud  powers  remaining 
in  city  or  town.— A  grant  by  a  city,  un- 
der legislative  authority,  to  a  company,  of 
"  the  right  and  privilege  of  using  that  por- 
tion" of  a  street  described,  "for  the  use 
and  construction  thereon  of  as  many  rail- 
road tracks,  side  tracks,  switches,  and  frogs 
as  may  be  necessary,"  is  not  a  grant  of  the 
street  In  fee  or  otherwise,  but  simply  of  the 

*  See  also  aii^f,  72. 


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Ill     I 


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576 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  01-98. 


right  to  use  the  street,  leaving  in  the  grantor 
the  title  of  the  street,  and  the  right  of  every 
other  use  which  may  be  enjoyed  consist- 
ently with  the  right  granted.  Chicago,  B. 
&*  Q.  K.  Co.  V.  Quincy,  139  ///.  355,  28  N.  E. 
Rep.  1069. 

The  grant  by  a  city  to  a  company  of  the 
right  to  lay  and  use  its  tracks  in  a  public 
street  cannot  deprive  the  city  of  its  right 
to  improve  the  parts  of  the  street  so  used 
by  the  company,  as  well  as  of  other  parts, 
and  its  judgment  of  the  necessity  and  char- 
acter of  the  improvements,  in  the  absence  of 
evidence  of  bad  faith,  must  be  conclusive. 
Grants  of  the  use  of  public  streets  are  sub- 
ject, by  implication,  to  the  exercise  of  such 
power  by  the  city.  Chicago,  B.  &•  Q.  /v*.  Co. 
V.  Quincy,  139  ///.  355,  28  A\  E.  Hep.  1069. 

A  company  has  no  authority  over  that 
portion  of  any  street  upon  which  its 
switches  or  turnouts  do  not  lie,  but  the  city's 
dominion  over  it  remains  unchanged  and 
unimpaired,  and  is  as  full  and  complete  for 
all  purposes  as  it  was  over  the  entire  street 
before  the  privilege  of  constructing  a  road 
upon  it  was  granted.  If,  therefore,  the  city 
should  choose  to  grant  to  another  company 
the  privilege  of  laying  a  track  upon  the 
same  street,  the  company  already  operating 
a  road  there  would  have  no  right  to  object, 
so  long  as  the  free  and  unobstructed  use  of 
its  own  track  was  not  interfered  with ;  and 
the  new  grant  may,  with  the  consent  of  the 
legislature,  be  made.  Gulf  City  St,  R.  Co.  v. 
Galveston  City  R.  Co.,  65  Tex.  502. 

01.  Couditious,  generally.— A  pro- 
vision in  a  city  ordinance  that  the  permission 
to  construct  a  railroad  within  the  city  is  upon 
condition  that  the  company  shall  permit 
other  companies,  not  exceeding  two  in 
number,  which  have  not  then  the  right  of 
entrance  into  the  city,  to  use  the  main 
track  of  the  road  jointly  with  such  road  so 
authorized,  does  not  render  tlie  ordinance 
invalid,  as  it  confers  upon  the  company  no 
power  not  given  it  by  law,  nor  docs  it  de- 
prive the  city  of  any  power  whatever.  Chi- 
cago 6-  W.  I.  R.  Co.  V.  Dunbar,  5  Am.  &* 
Eng.  R.  Cas.  253,  100  ///.  no. 

Where  a  company  has  the  right  to  occupy 
the  streets  of  a  city  with  its  track,  without 
consent  by  the  municipal  authorities,  such 
city  cannot,  by  an  ordinance  granting  the 
right  of  way,  impose  conditions  upon  the 
use  of  the  street  which  shall  be  binding 
upon  the  company,  and  create  an  obliga- 
tion for  the  performance  of  the  conditions. 


Council  Bluffs  v.  Kansas  City,  St.  J.  &*  C, 
B.  R.  Co.,  45  Iowa  338. 

Under  the  general  statutes  of  Kansas., 
railroad  companies  cannot  construct  their 
roads  upon  the  streets  of  an  incorporated 
city  without  the  consent  of  the  corporate 
authorities.  Held,  that  this  statute  does  not 
confine  the  city  authorities  to  a  simple  per- 
mission to  build  or  a  denial ;  but  authorizes 
them  to  prescribe  conditions  on  which  their 
consent  will  be  given,  and  so  far  as  they  are 
lawful  and  proper,  and  accepted,  they  will 
be  binding.  Pacific  R.  Co.  v.  Leavenworth, 
I  Dill.  (U.  5.)  393. 

02.  as  to  time  of  completion 

of  road.  —  A  city  granted  a  icense  to  a 
company  to  construct  its  road  across 
streets,  upon  condition  that  the  tracks 
should  be  constructed  within  one  year,  but 
the  company  was  prevented  from  complet- 
ing its  track  within  the  year  by  injunc- 
tions, and  also  by  the  police  officers  of  the 
city,  acting  under  the  direction  of  the 
mayor.  Held,  that  the  right  of  the  company 
was  not  lost,  and  the  city  might  be  enjoined 
from  interfering  with  the  laying  of  tracks 
after  the  expiration  of  the  year.  Chicago 
v.  Chicago  &•  IV.  J.  R.  Co.,  105  ///.  73. 

A  city  ordinance  gave  plaintiff  company 
an  option  of  routes,  but  required  it  to  com- 
plete its  road  within  two  years  from  the 
passage  of  the  ordinance.  Plaintiff  pro- 
ceeded at  once,  executed  contracts,  m.^de 
large  expenditures,  and  incurnH  '•  ijiC  lia- 
bilities. Held,  that  the  timt  ir..  ,  1  ..-^  wsis 
not  of  the  essence  of  the  con'  i-  ,1  --•;:ause 
the  city  could  derive  no  hen<  it  xi\  its 
performance,  nor  sustain  any  injai  .cm  its 
breach.  Pittsburgh,  Ft.  IV.  &>  C.  P..  Co.  v. 
Pittsburgh,  i  Pittsb.  (Pa.)  392. — Quoting 
Com.  V.  Erie  &  N.  E.  R.  Co.,  27  Pa.  St.  354. 

Although  an  ordinance  of  a  city  granting 
a  company  a  right  of  way  over  a  certain 
street  may  impose  a  condition  that  the  rail- 
way must  be  constructed  within  a  certain 
time,  yet  the  city  is  estopped  to  urge  that 
the  grant  is  void  by  reason  of  a  failure  to 
comply  with  such  conditions,  when  the  or- 
dinance has  never  been  repealed  and  the 
city  has  permitted  the  company  to  operate 
its  road  continuously  for  several  years. 
Seattle  v.  Columbia  «S-  P.  S.  R,  Co.,  6  Wash. 

379-  33  P<*<^-  ^'P'  '048. 

03. as  to  bridges,  fences,  and 

crossings.*  —  Where    a   city    ordinance 

*  Conditions    imposed   by    municipalities   in 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  »4  97.  577 


granted  to  a  company  the  right  to  build  into 
the  city  on  condition  that  it  build  suitable 
walls  or  fences  to  protect  persons  and  prop- 
erty, such  walls  or  fences  to  be  of  such 
materials  and  of  such  height  as  the  council 
might  direct,  the  duty  to  fence  is  absolute, 
and  the  company  cannot  shield  itself  from 
a  failure  to  do  so  by  the  plea  that  the 
council  had  not  directed  the  character  of 
the  work.  Hayes  v.  Michigan  C,  R.  Co.,  15 
Am.  &*  Eng.  R.  Cas.  394,  1 1 1  U.  S.  228,  4 
Sup.  a.  Rep.  369. 

A  statute  requiring  a  railroad  company  to 
maintain  so  much  of  a  highway  as  is  within 
the  limits  of  its  road,  where  it  is  crossed  at 
grade,  at  the  expense  of  the  company  is 
constitutional.  The  power  of  the  legisla- 
ture to  impose  such  burdens  for  the  general 
safety  is  a  proper  exercise  of  its  police 
power.  Boston  <S-  M,  R.  Co.  v.  York  County 
Com'rs,  32  Am.  &*  Eng.  R.  Cas.  271,  79 
Me.  386,  10  At/.  Rep.  113. 

As  to  the  right  generally  to  require  com- 
panies to  construct  crossings,  see  Illinois  C. 
R,  Co.  V.  Bloomington,  76  ///.  447.  Albany 
Northern  R.  Co.  v.  Brownell,  24  N.  V.  345, 
—Overruling  Miller  v.  New  York  &  E. 
R.  Co.,  21  Barb.  (N.  Y.)  513. 

94. for  use  of  tracks  by  other 

roads. — A  city  ordinance  granting  a  right 
of  way  to  one  company  upon  condition  that 
it  allow  other  companies  to  use  its  tracks 
within  the  city  limits  does  not  apply  to  the 
use  of  tracks  laid  since  the  ordinance  was 
passed,  and  on  land  not  granted  by  the  or- 
dinance. Chicago,  St.  P.  6<»  A'.  C.  R.  Co.  v. 
Kansas  City,  St.  J.  &•  C.  B.  R.  Co.,  52  Fed. 
Rep.  178.— Applying  Central  Trust  Co. 
V.  Wabash,  St.  L.  &  P.  R.  Co.,  29  Fed. 
Rep.  546. 

95.  Provisions  for  forfeiture.  —  A 
city  ordinance  granting  a  right  of  way  over 
streets  provided  that  the  grant  should  be  null 
and  void  if  the  company  should  ever  remove 
its  shops  from  the  city.  Held,  that  this  was 
a  condition  subsequent,  in  which  no  one  but 
the  company  and  the  city  had  any  legal  in- 
terest, and  a  removal  of  the  shops  would 
not  ipso  facto  render  the  ordinance  null  and 
void,  ndr  entitle  an  abutting  lot  owner  to 
maintain  an  action  against  the  company  for 
unlawfully  occupying  the  street.  Knight  v. 
Kansas  City,  St.  J.  «S-  C.  B.  R.  Co.,  70  Mo. 
231.— Followed  in  Hovelman  v.  Kansas 

granting  to  company  right  of  way  in  streets,  see 
note,  10  L.  R.  A.  771. 
7  D.  R.  D.— 37 


City  Horse  R.  Co.,  20  Am.  &  Eng.  R.  Cas. 
17,  79  Mo.  632. 

96.  Imposing  liability  for  iujury  to 
property. — Where  an  ordinance  of  a  town, 
authorizing  a  company  to  build  its  road  on 
a  street,  provides  that  the  company  shall  be 
bound  to  pay  all  damages  that  may  accrue 
to  property  owners  on  such  street  by  reason 
of  the  construction  of  said  railroad,  an  action 
will  lie  against  the  company  in  favor  of  any 
one  whose  property  is  injured,  either  by  de- 
preciation in  value  or  loss  of  business  sus- 
tained during  the  building  of  the  road  and 
after  its  construction.  St.  Louis,  V.  6-  T. 
H.  R.  Co.  V.  Haller,  82  ///.  208.—  Follow- 
ing St.  Louis,  V.  &  T.  H.  R.  Co.  v.  Capps,  67 
III.  607.— Quoted  in  Chicago,  D.  &  V.  R. 
Co.  7/.  Chicago,  121  III.  176,  11  N.  E.  Rep. 
907,  9  West.  Rep.  493. 

In  such  case  the  parties  will  be  governed 
and  their  rights  measured  by  the  ordinance, 
without  reference  to  the  constitutional  pro- 
vision in  regard  to  compensation  for  prop- 
erty taken  or  damaged  for  corporate  pur- 
poses, or  to  the  common  law  on  the  subject. 
St.  Louis,  V.  &*  T.  H.  R.  Co.  v.  Haller,  82 
///.  208.— Reviewed  in  Peoria  G.  L.  &  C. 
Co.  V.  Peoria  Terminal  R.  Co.,  146  111.  372. 

A  company  accepted  a  city  ordinance  giv- 
ing it  permission  to  lay  its  tracks  along  a 
street  on  condition  that  it  pay  the  city  for 
the  erection  of  a  viaduct  over  the  street, 
which  would  be  made  necessary  by  the 
road,  and  should  indemnify  the  city  from  all 
legal  damages,  judgments,  decrees,  and 
costs  and  expenses  of  the  same  which  't 
might  suffer,  or  which  might  be  recovered 
or  obtained  against  it  for  or  by  reason  of  the 
granting  of  such  privileges  and  authority,  or 
resulting  from  the  passage  of  the  ordinance, 
or  any  matter  or  thing  connected  therewith. 
The  city  built  the  viaduct,  and  the  owner  of 
lots  recovered  $10,000  damages  against  the 
city  for  injury  to  his  lots  by  destroying  the 
means  of  ingress  and  egress  to  and  from 
them.  Held,  that  the  company  was  liable  to 
the  city  for  the  amount  so  recovered.  Chi- 
cago, B.  &*  Q.  R.  Co.  V.  Chicago,  134  ///.  323, 
2$  N.E.  Rep.Si^ ;  affirming  35  ///.  App.  206. 

97.  Transfer  of  the  right.— Where  a 
city  has,  by  ordinance,  granted  to  the  lessor 
the  privilege  of  laying  down  a  track  along 
one  of  its  streets,  that  he  might  connect  his 
elevator  with  a  railroad,  such  grant  being 
made  specially  to  the  lessor,  the  leasing  of 
his  elevator  to  a  third  person  will  not  pass 
to  the  lessee  any  of  the  rights  secured  to  the 


I 


I«    V    1 


578 


STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  98. 


lessor  under  the  ordinance.  People  ex  rel. 
V.  Chicago  &*  N.  W.  R.  Co.,  57  ///.  436,  10 
Am.  Ry.  Rep.  457. 

Where  a  city  grants  to  a  railroad  the  right 
to  use  certain  parts  of  its  streets  for  tracks, 
the  grant  containing  no  clause  restricting 
the  use  of  tiie  streets  to  the  grantee,  the 
right  to  such  use  of  the  streets  may  be  trans- 
ferred to  another  company  which  is  author- 
ized by  law  to  acquire  and  succeed  to  all 
the  property,  etc.,  of  the  grantee.  Quincy 
V.  Chicago,  B.  &»  Q.  R.  Co.,  94  ///.  537. 

I.  Exclusive  Privileges. 

08.  Orants  of  such  privileges  are 
Illegal,  and  ultra  vires  the  city.*— 

The  power  to  grant  to  a  company  the  exclu- 
sive use  of  streets  is  in  the  nature  of  a  mon- 
opoly, and  must  be  derived  either  from  some 
provision  in  the  municipal  charter,  from  the 
laws  of  the  state  under  which  the  company 
is  organized,  or  from  the  state  Constitution. 
Birmingham  &*  P.  M.  St.  R.  Co,  v.  Birming- 
ham St.  R.  Co.,  79  Ala.  465. 

The  provision  of  Ala.  Const,  of  1875,  ^r^. 
14,  §  24,  that  "  no  street  passenger  railway 
shall  be  constructed  within  the  limits  of  any 
city  or  town,  without  the  consent  of  its  local 
authorities,"  is  merely  prohibitory  in  its 
nature,  and  does  not  confer  any  exclusive 
privilege  to  use  the  streets.  Birmingham 
&*  P.  M.  St.  R.  Co.  V.  Birmingham  St.  R.  Co., 
j<)Ala.«,6i. 

The  charter  of  the  city  of  Birmingham, 
granted  March  i,  1881,  has  no  direct  pro- 
vision on  the  subject  of  street  railways.  It 
contains  a  provision  authorizing  the  city 
authorities  "to  regulate  and  control  the 
running  of  cars  or  locomotives  upon  or 
across  the  streets,  avenues,  or  alleys  of  said 
city,  and  to  regulate  and  control  the  speed 
of  such  cars,  engines,  or  trains,  within  the 
corporate  limits  of  the  city."  Held,  that, 
even  if  this  provision  relates  to  street  rail- 
ways, it  confers  no  right  on  the  city  authori- 
ties to  grant  an  exclusive  privilege  to  use 
the  streets  .without  limit  as  to  duration. 
Birmingham  5^  P.  M.  St.  R.  Co.  v.  Bir- 
mingham St.  j1.  Co.,  79  Ala.  465. 

Ala.  Code  of  1876,  §  1921,  under  which 
the  company  was  organized,  provides  that 
it  shall  have  power  to  construct,  maintain, 
and  use  a  street  railway  "  upon  the  streets, 

*  Grants  of  exclusive  privileges  by  municipal 
corporations,  see  notes,  36  Am.  &  Eng.  R.  Cas. 
116 ;  9  /</.  595. 


and  upon  the  line,  and  between  the  termini 
named,  ♦  ♦  ♦  upon  such  terms  and  in  such 
manner  as  may  be  authorized  by  an  ordin- 
ance or  other  lawful  act  of  the  corporate 
authorities.  And  such  railroad  company 
may  contract  with  the  city  or  town  therefor, 
and  the  contract  may  be  altered  when  both 
parties  agree  to  the  change."  //eli/,  that 
the  power  to  contract  thus  conferred  does 
not  extend  to  an  exclusive,  perpetual  privi- 
lege. Birmingham  &*  P.  M.  St.  R.  Co,  v. 
Birmingham  St.  R.  Co.,  79  Ala.  465. 

The  use  of  the  streets  of  a  city,  whether 
for  vehicles  drawn  by  animals,  for  riding 
upon  animals,  for  footmen,  or  for  the  pas- 
sage of  cars,  must  be  for  the  public.  No 
corporation  or  individual  can  acquire  an 
exclusive  right  to  tlieir  use  or  one  for  merely 
private  purposes.  Chicago  D.  &*  C.  Co.  v. 
Garrity,  115  ///.  155,  3  N.  E.  Rep.  448.— 
Quoted  in  St,  Louis,  A.  &  T.  H.  R.  Co. 
V.  Belleville,  20  111.  App.  580. 

A  railroad  company,  under  authority  to 
condemn  property  for  its  right  of  way,  can- 
not condemn  property  for  a  street  of  a  city ; 
neither  can  a  city,  under  authority  to  con- 
demn property  for  streets,  condemn  prop- 
erty for  a  railroad  track.  In  this  respect  a 
city  will  not  be  permitted  to  do  indirectly 
what  it  may  not  do  directly.  The  law  looks 
to  the  substance  rather  than  to  the  form. 
A  city  may  not  first  condemn  property  for 
a  street  and  then  afterwards  allow  railroad 
tracks  to  be  laid  in  it  co  the  extent  of  ex- 
cluding all  other  uses.  Ligare  v.  Chicago, 
139  ///.  46,  28  N.  E.  Rep.  934,— Following 
Chicago  &  N.  W.  R.  Co.  v.  Gait,  133  111.  657. 

An  ordinance  of  a  city  for  the  widening 
of  a  part  of  a  street,  which  gives  the  use  of 
all  the  old  street  and  a  part  of  the  new 
street  added  by  the  widening  exclusively 
to  steam-railroad  companies  for  laying  and 
operating  their  tracks  and  for  the  filling  up 
of  a  public  waterway,  is  illegal  and  void, 
and  cannot  form  the  basis  for  the  condem- 
nation of  land  for  the  purposes  intended. 
Ligare  v.  Chicago,  139  ///.  46,  28  N.  E, 
Rep.  934. 

City  authorities  may,  under  legislative 
authority,  grant  the  use  of  a  public  street  to 
a  company  for  laying  tracks  thereon  and 
using  the  same  by  operating  its  cars  and 
trains  over  the  same,  yet  it  is  not  competent 
for  a  city,  under  legislative  authority  merely 
autliorizing  tracks  to  be  laid  in  streets,  to 
grant  the  exclusive  use  of  a  street  to  a  com- 
pany.    It  is  not  material  that  the  public  Is 


STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  QO-101. 


679 


not  expressly  deprived  of  the  use  of  ?  street 
upon  which  railroad  tracks  are  laid,  out  the 
result  and  effect  of  the  grant  will  control 
in  tliat  regard.  L^are  v.  Chicago,  \y)  III. 
46,  28  N,  E.  Rep.  934.— Following  and 
QUOTING  Moses  V.  Pittsburgh,  Ft.  W,  &  C. 
R.  Co.,  21  111.  516.  Quoting  Stack  v.  East 
St.  Louis,  85  111.  377. 

Under  proper  authority,  a  company  has 
a  right  to  use  streets  in  common  with  the 
public,  but  this  use  must  be  such  as  not 
unreasonably  to  obstruct  the  public  travel 
thereon  ;  and  an  exclusive  use,  thereby  de- 
priving the  streets  of  their  character  as 
public  highways,  cannot  be  granted.  St. 
Louis,  A.&'T.H.R.  Co.  v.  Belleville,  20  ///. 
App.  580.— Quoting  Stack  v.  East  St.  Louis, 
85  111.  377 ;  Pittsburg,  Ft.  W.  &  C.  R.  Co.  v. 
Reich,  loi  111.  157 ;  Chicago  D.  &  C.  Co.  v. 
Garrity,  115  111.  155. 

The  city  of  St.  Louis  cannot  confer  on  a 
railroad  corporation  the  exclusive  right  to 
the  use  of  one  of  its  streets  for  the  com- 
pany's business.  St.  Louis  Transfer  R.  Co. 
V.  St.  Louis  M.  B.  T.  R.  Co.,  iii  Mo.  666, 
20  S.  W.  Rep.  319. 

The  common  council  of  a  city,  under  its 
power  to  pass  ordinances  to  regulate  or  pre- 
vent the  use  of  streets  for  any  other  pur- 
poses than  public  travel,  has  no  power  to 
confer  upon  a  company,  by  ordinance,  a  right 
to  occupy  exclusively  twelve  feet  of  a  fifteen- 
foot  sidewalk  by  the  erection  thereon  of  a 
freight  platformand  roof.  State  ( Traphagen, 
Pros.)  v.  Jersey  City,  28  Am.  &*  Eng.  Corp. 
Cas.  182.  52  N.J.  L.  65.  i8  Atl.  Rep.  586.— 
Reviewing  State  (Montgomery,  Pros.)  v. 
Trenton,  36  N.  J.  L.  79. 

Ohio  Rev.  St.  §  3283,  does  not  confer 
upon  a  municipal  corporation  authority  to 
agree  with  a  company  for  the  exclusive 
occupation  of  its  streets  by  the  latter. 
Cleveland,  C,  C.  <S-  St.  L.  R.  Co.  v.  Cincin- 
nati, I  Ohio  Prob.  269. 

00.  What  grants  do  not  convey 
exclusive  privileges.  —  A  decree  was 
entered  by  consent  condemning  land  for 
street  purposes,  which  provided  that  the 
company  "  sh  Jl  have  the  right  to  keep  and 
maintain  its  present  tracks  and  switches 
upon  said  land,  and  shall  have  the  right  to 
construct  such  other  tracks,  switches,  and 
turnouts  upon  said  land  and  across  said 
street,  when  opened,  as  it  may  deem  neces- 
sary for  the  transaction  of  its  business." 
Held,  that  such  reservation  is  not  the  grant 
of  an  exclusive  privilege,  but  only  the  usual 


permission  to  occupy  the  street  with  its 
tracks.  Kan  as  City,  St.  J.  &*  C.  B.  R.  Co. 
V.  St.  Joseph  1^"  Ainal R.  Co.,  9jr  Mo.  457,  3 
L.  R.  A.  240,  10  S.  W.  Rep.  826. 

Under  W.  Va.  Code  1887,  ch.  54,  §  50,  a 
company,  with  the  assent  of  the  municipal 
authorities,  may  construct  and  operate  its 
railroad  along  a  public  street  of  a  oity,  in  a 
cut  or  excavation  below  the  common  level 
of  the  remaining  portion  of  the  street,  in 
such  manner  as  will  appropriate  a  portion  of 
the  street  to  the  exclusive  use  of  the  com- 
pany, provided  such  excavation  does  not 
occupy  the  entire  street  or  such  consider- 
able portion  thereof  as  would  substantially 
prevent  the  use  of  the  street  by  the  general 
public,  and  provided,  further,  that  it  does 
not  unnecessarily  impair  the  usefulness  of 
the  street  as  a  highway  for  the  general 
public.  Arbenz  v.  Wheeling  &•  H.  R.  Co., 
40  Am.  &*  Eng.  R.  Cas.  284,  33  W.  Va.  i, 
S  L.  R.  A.  371,  10  S.  E.  Rep.  14.— DIS- 
TINGUISHING Stevens  t/.  Erie  R.  Co.,  21  N. 
J.  Eq.  259. — See  also  Yates  v.  West  Grafton, 
34  W.  Va.  783,  \z  S.E.  Rep.  1075. 

100.  Grant  to  be  construed  as  not 
exclusive.  —  When  a  "  right  of  way  "  on 
the  public  streets  is  granted  by  a  municipal- 
ity to  a  railroad  corporation,  such  grant 
cannot  be  construed  to  mean  an  absolute 
and  unrestricted  right  of  way,  but  it  is  to  be 
understood  that  the  street  on  which  a  right 
of  way  is  thus  secured  must  still  be  subject 
to  the  proper  and  ordinary  public  uses  as  a 
public  highway  ;  and  though  the  license  by 
which  a  second  company  is  permitted  to 
occupy  the  same  street  contains  a  provision 
•'  that  the  tracks  of  said  company  shall  be 
so  laid  as  not  to  injure  or  destroy  any  tracks 
now  laid  by  any  other  corporation,  and  that 
the  location  of  said  railway  shall  not  in  any 
manner  interfere  with  any  unforfeited  rights 
of  way  herebefore  granted  by  the  municipal 
assembly  by  proper  ordinance,"  said  first- 
named  company  cannot  prevent  the  second 
company  from  occupying  with  it  the  same 
street  and  crossing  its  tracks.  St.  Louis 
Transfer  R.  Co.  v.  St.  Louis  M.  B.  T.  R. 
Co.,  55  Am.  <S-  Eng,  R.  Cas.  17,  in  Mo.  666, 
20  S.  IV.  Rep.  319. 

101.  Use  of  tracks  by  other  roads. 
— Under  a  contract  with  a  company  by  a 
city,.in  accordance  with  which  it  permits  the 
company  to  construct  a  track  through  its 
streets,  on  condition  that  the  company  per- 
mit any  other  company  to  use  the  track  on 
paying  a  pro  rata  share  of  the  cost  of  con- 


il 


ii 


ii 


'If 


I 


680        STi^EETS   AND    HIGHWAYS   (RAILWAYS   IN),  102-104. 


Itruction,  without  placing  any  limit  on  the 
time  when  other  roads  may  come  in,  or  theii 
number,  a  delay  in  making  application  of 
nine  years  after  its  completion,  during  which 
two  other  roads  have  come  in,  is  no  ground 
for  excluding  an  applicant  where  it  is  proved 
that  the  line  will  not  be  overburdened  by 
its  entrance,  or  that  the  parties  or  court 
have  power  to  prevent  such  result.  Louis- 
villi  &-  N.  A\  Co.  v.  Mississippi  &*  T.  R. 
Co.,  92  Tenn.  681,  22  S.  W.  Rep.  920. 

Under  such  contract  no  other  company, 
upon  entering,  is  subordinate  to  the  original 
builder.  Louisville  &*  N.  R.  Co.  v.  Missis- 
sippi  &"  T.  R.  Co.,  92  Tenn.  681,  22  5.  IV. 
R*p.  920. 

And  the  company  isestopped  from  exclud- 
ing other  companies  on  the  ground  that  it 
purchased  or  condemned  private  lands  for 
the  use  of  the  road  for  about  one  seventh 
of  the  way.  Louisville  &*  N.  R.  Co,  v. 
Mississippi  &*  T.  R.  Co.,  92  Tenn,  681,  22 
S.  W.  Rep.  920. 

And  the  company  cannot  exclude  another 
company  from  using  the  track  on  the  ground 
that  the  applicant,  by  the  terms  of  its  charter, 
can  use  only  animal  power,  when  such  appli- 
cant has  for  years  used  steam  power,  and  the 
city  sanctions  such  use  by  joining  in  the 
petition  and  otherwise.  Louisville  &*  N.  R. 
Co.  v.  Mississippi  &*  T.  R.  Co.,  92  Tenn. 
681,  22  S.  IV.  Rep.  920. 

Neither  can  the  company  exclude  a  foreign 
company  seeking  to  obtain  such  use,  upon 
compliance  by  the  latter  with  the  provisions 
of  tiie  contract.  Louisville  S-  N.  R.  Co.  v. 
Mississippi  &*  T.  R.  Co.,  92  Tenn.  681,  22  S. 
W.  Rep.  920. 

In  such  case  a  decree  that  another  com- 
pany, upon  being  allowed  the  use  of  a  track 
through  the  city,  shall  pay  one  fourth  of  the 
operating  expenses  so  long  as  it,  the  original 
road,  and  two  other  lines  which  had  pre- 
viously entered  on  the  use  of  the  track 
shall  continue  to  use  them,  is  proper. 
Lcuisville  &*  N.  R.  Co.  v.  Mississippi  >3*  T. 
R.  Co.,  93  Tenn.  681,  22  5*.  IV.  Rep.  920. 

/.  Withdrawal  of  Consent.     Revocation 

102.  Ordinance  may  be  revoked 
before  acceptance.  — Where  a  munici- 
pality passes  an  ordinance  granting  a  right 
of  way  through  its  streets,  it  has  a  rigtit  to 
revoke  the  same  at  any  time  before  it  has 
been  accepted  by  the  company,  and  before 
the  company  has  acquired  any  vested  rights 


thereunder  by  the  expenditure  of  money 
on  the  faith  of  such  ordinance.  Easi  St. 
Louis  Union  R.  Co.  v.  East  St.  Louis,  39  ///. 
j4pp.  398. 

103.  After  consent  acted  on  and 
money  expended,  city  cannot  re- 
volce. — An  oi-dcr  of  the  board  of  trustees  of 
a  municipality,  granting  to  a  company  the 
right  to  lay  and  maintain  a  side  track  upon 
certain  streets,  but  containing  no  condi- 
tions as  to  the  time  within  which  the  work 
is  to  be  commenced  or  completed,  is  not 
a  mere  license  revocable  at  the  pleasure  of 
the  board.  After  the  company  has  acted 
upon  the  order  and  expended  money  in  the 
construction  of  the  side  track,  the  board 
cannot  rescind  or  recall  the  privileges  it  had 
granted,  unless  the  company  fails  to  comply 
with  the  terms  or  conditions  of  the  grant. 
Areata  v.  Areata  &>  M.  R.  R.  Co.,  92  Cal. 
639,  28  Pac.  Rep.  676. 

Where  a  railroad  is  authorized  by  statute 
to  occupy  streets  upon  obtaining  the  con- 
sent of  the  municipal  authorities,  the  com- 
pany's franchise  is  complete  when  such 
consent  is  given,  and  such  consent  cannot 
be  subsequently  withdrawn  by  an  ordinance 
so  as  to  require  further  consent  or  addi- 
tional conditions.  Brooklyn  Heights  R.  Co. 
v.  Brooklyn,  46  N.  Y.  S.  R,  299,  18  A^.  Y. 
Supp.  876. 

City  authorities,  after  having  granted 
consent  to  a  company  to  use  a  street,  can- 
not, by  revoking  the  city  ordinance  granting 
such  authority,  deprive  the  company  of  its 
right  to  use  such  street  if,  prior  to  the  re- 
peal, the  company  has  made  expenditures  on 
the  strength  of  the  consent.  Rio  Grande 
R.  Co.  V.  Brownsville,  43  Tex.  88,  13  Am. 
Ry.  Rep,  223. 

104.  Privilege  used  for  many 
years  without  objection  not  to  be 
witlidrawn.  —  Where  a  company  is  au- 
thorized by  its  charter  to  build  its  track 
through  any  street  or  highway,  a  grant  to  it 
by  a  city  ordinance  of  the  right  of  way 
through  certain  streets  is  the  grant  of  a 
franchise,  notwithstanding  the  privileges  are 
not  conferred  directly  by  legislative  enact- 
ment, since  the  municipality  will  be  re- 
garded as  a  political  agent  for  the  state. 
Port  of  Mobile  v.  Louisville  &*  N.  R.  Co.,  36 
Am.  &*  Eng.  R,  Cas.  171,  84  Ala.  115,  4 
So.  Rep.  106. 

Where,  in  addition  to  such  privilege,  the 
company  is  authorized  to  lay  necessary 
sidings  and  turnouts  in  such  manner  as  it 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  105.  lOe. 


SSL 


may  deem  expedient  and  necessary  for  its 
business  and  necessities,  and  the  company 
has  laid  its  tracic  and  has  Sr  many  years, 
without  hindrance  or  oppo5'tion  by  the 
municipal  authorities,  loaded  ri'd  unloaded 
its  cars  at  the  adjacent  streTts  and  ware- 
houses, it  cannot  be  deprived  by  the  city  of 
the  right  so  to  load  and  unload  in  future,  as 
this  right  will  be  construed  as  included  by 
necessary  implication  in  the  grunt  of  the 
privilege  of  laying  sidings,  etc.  Port  of 
Mobile  V.  Louisville  &*  N.  K,  Co.,  36  Am.  &* 
Eng.  R.  Cas.  171,8^  Ala.  115,4  So.  Rep.  106. 
—Followed  in  Montgomery  City  Council 
V.  Louisville  &  N.  R.  Co,,  84  Ala.  137,  4  So. 
Rep.  626. 

105.  If  ordinance  reoervcH  no 
tollH,  subsequent  ordinance  cannot 
impose  tiieui. — The  grant  to  a  company 
of  the  right  to  lay  and  maintain  its  track 
over  a  bridge  belonging  to  the  city,  and  to 
use  and  operate  the  same,  in  an  ordinance 
which  contains  no  reservation  respecting 
tolls  or  other  charges,  is  within  municipal 
authority ;  and  the  city  cannot,  by  a  subse- 
quent ordinance,  impose  such  charges.  If 
the  ordinance  grants  a  mere  license  revo- 
cable at  the  pleasure  of  the  city,  still  tolls 
cannot  be  recovered  under  the  latter  ordi- 
nance until  actual  revocation  of  the  license 
has  been  made.  Such  a  grant  is  not  im- 
paired by  the  fact  that  the  company  has 
increased  its  use  of  the  bridge  by  the  con- 
struction of  another  line  whose  business 
passes  over  it.  The  company  has  the  right 
of  use  for  all  of  its  business.  Des  Moines  v. 
Chicago,  K.  I.  &*  P.  R.  Co.,  41  Iowa  569.— 
Distinguished  in  Sioux  City  St.  R.  Co.  v. 
Sioux  City,  46  Am.  &  Eng.  R.  Cas.  169,  138 
U.  S.  98 ;  Sioux  City  St.  R.  Co.  v.  Sioux 
City,  78  Iowa  742,  34  N.  W.  Rep.  498. 

4.   Under  Condemnation  Proceedings, 
a.  Necessity  of  and  Right  to  Institute. 

106.  Necessity  of  condemnation 
proceedings  or  consent  of  abutters. 

— A  decree  enjoining  a  city  from  interfering 
with  the  construction  of  a  railway  through 
certain  streets  cannot  be  construed  to  pre- 
vent the  city  from  the  exercise  of  any  legal 
remedies  to  prevent  laying  a  track  across 
school  lots  without  acquiring  the  right  of 
way  over  the  same.  Chicago  v.  Chicago  &• 
IV.  I.  R.  Co.,  los  ///.  73. 

Where  a  railroad  charter  provides  that  in 
all  cases  where  the  owner  of  lands  nec- 


essary for  the  use  and  construction  of  the 
road  "shall  refuse  to  relinquish  the  same 
to  the  corporation,  or  shall  refuse  to  accept 
a  fair  compensation  therefor,"  it  shall  be 
lawful  for  the  corporation  to  enter  and  take 
possession  of  and  use  such  lands,  and  that 
the  owner  shall  make  application  to  a  jus- 
tice of  the  peace  for  an  appraisement  of 
damages,  and  that  there  shall  be  no  re* 
covery  by  such  owner  unless  such  an  appli- 
cation be  made  by  him  within  two  years, 
such  provisions  will  be  strictly  construed  as 
against  the  owner  of  the  land  taken ;  and 
such  limitation  will  not  apply  as  against  the 
owner  of  a  lot  abutting  upon  a  public  street 
of  u  city  or  town,  upon  his  side  of  which 
street  such  company  has  maintained  its 
track  for  fifteen  years,  upon  a  level  with  the 
grade  of  the  street,  with  the  authority  of 
such  city  but  without  the  consent  of  the 
owner  of  such  lot,  without  having  demanded 
of  him  a  relinquishment  of  his  title  to  the 
street  and  without  having  offered  him  a  fair 
compensation ;  and,  against  the  company  so 
occupying  the  street,  such  adjoining  pro- 
prietor may  have  the  usual  remedies  for  the 
protection  of  rights  in  real  property.  Terrt 
Haute  <S-  /.  R.  Co.  v.  Scott,  3  Am.  &*  Erijg.  R. 
Cas.  208,  74  Ind.  29. 

When  the  closing  up  of  one  end  of  a 
street  or  alley  leaver  to  the  owner  of  prop- 
erty bordering  on  the  street  or  alley  no  con- 
venient means  of  access  to  other  streets 
to  which  he  has  theretofore  had  convenient 
access,  he  is  entitled  to  his  action  for  dam- 
ages ;  or  the  corporation,  whether  munici- 
pal or  private,  seeking  to  appropriate  the 
street  to  its  own  use,  must  resort  to  the  writ 
oi  ad  quod  damnum,  and  under  it  compen- 
sate the  owner  for  the  injury  sustained. 
The  city  cannot,  either  for  its  own  use  or 
for  the  use  of  a  private  corporation,  appro- 
priate the  street  to  the  injury  of  the  property 
holder  without  making  just  compensation. 
Gargan  v.  Louisville,  N.  A.  <S-  C  R.  Co,,  89 
Ky.  212,  12  5.  W.  Rep.  259.— DISAPPROVING 
Smith  V.  Boston,  7  Cush.  (Mass.)  255.  Fol- 
lowing Lexington  &  O.  R.  Co.  v.  Apple- 
gate,  8  Dana  (Ky.)  289;  Transylvania  Uni- 
versity V.  Lexington,  3  B.  Mon.  (Ky.)  27. 
Reviewing  Fulton  v.  Short  R.  R.  Transfer 
Co.,  85  Ky.  640. 

Where  a  company  occupies  a  public  street 
without  proceedings  for  its  condemnation, 
its  occupancy  is  a  continuous  wrong  to 
abutting  owners,  who  may  recover  the 
amount  of  damages  accruing  year  by  year. 


<■  1 


r 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  107. 


m  'H 


Grand  Fapids  &*  /.  R.  Co.  v.  IfeistI,  lo  Am. 
&»  Eng.  R.  Cas.  260,  47  Mi'cA.  393,  it  N,IV. 
Rtp.iiJ. 

The  public  e  iscment  of  a  common  street 
or  liighwuy  does  not  include  tlie  ri({ht  to 
construct  and  operate  a  railroad  upon  such 
street  or  highway,  even  where  the  charter, 
in  force  when  the  street  was  dedicated,  au- 
thorizes  the  company  to  construct  its  road 
upon  and  along,  across,  under,  or  over  any 
public  or  private  highway,  road,  street,  plank 
road,  or  railroad,  if  the  same  shall  be  neces- 
sary. Gray  v.  First  Div.  St.  P.  &-  P.  K. 
Co.,  13  Afinn.  315  (Gil.  289).  —QUOTING 
Williams  v.  New  York  C.  R.  Co.,  16  N.  Y. 
109.— Followed  in  Molitor  v.  First.  Div. 
St.  P.  &  P.  R.  Co..  14  Minn.  285  (Gil.  212) ; 
Harrington  i>.  St.  Paul  &  S.  C.  R.  Co.,  17 
Minn.  215  (Gil.  188);  Adams  v.  Hastings  & 
D.  R.  Co.,  18  Minn.  260  (Gil.  236). 

Appropriating  a  public  street  to  use  for  an 
ordinary  commercial  railroad  is  not  a  proper 
street  use.  Adams  v.  Chicago,  B.  &*  N.  R. 
Co.,  36  Am.  &*  Eng.  N.  Cas.  7.  39  Minn. 
286,  39  A^.  W.  Rep.  629.  I  L.  R.  A.  493,  38 
A/i.L./.3S8. 

By  N.  Y.  Act  of  1873.  ch.  531,  "to  open, 
lay  out,  and  improve  Gravesend  avenue,  in 
the  county  of  Kings,  and  to  authorize  the 
construction  of  a  railroad  thereon,"  the  fee 
of  the  land  appropriated  for  the  avenue  was 
not  taken,  but  only  the  use.  Section  13, 
authorizing  a  company  to  construct  and 
operate  its  road  upon  said  avenue,  simply 
gave  legislative  consent  to  such  use ;  it  con- 
ferred no  power  to  occupy  the  street  for 
that  purpose  without  the  consent  of  the 
proprietors  of  the  soil  or  a  condemnation 
of  the  land  by  proceedings  under  the  Gen- 
eral Railroad  Act.  IVashington  Cemetery  v. 
Prospect  Park  &-  C.  I.  R.  Co.,  68  N.  Y.  591, 
i^  Abb.  N.  Cas.  15;  affirming  7  Hunt^^. — 
Following  People  v.  Kerr,  27  N.  Y.  188.— 
Applied  in  Murdock  v.  Prospect  Park  & 
C.  I.  R.  Co..  73  N.  Y.  579. 

It  seems  that  in  all  cases  where  parties 
are  obliged  to  appeal  to  the  legislature  for  a 
grant  of  the  right  or  power  to  construct  a 
railway  or  other  improved  mode  of  locomo- 
tion, a  new  assessment  of  damages  should 
be  provided  for  and  made.  People  v.  Law, 
34  Barb,  (N,  V.)  494,  22  I/ow.  Pr.  109. 

Where  this  has  been  done,  and  provision 
is  made  in  the  company's  charter  for  oh 
taining  title  in  case  any  person  shall  cap 
any  private  right  or  interest  ii^  the  streets 
ur  avenues  over  or  upon  which  the  railroad 


is  to  be  laid,  and  the  company  has  accepted 
the  grant  with  that  condition,  it  must  be 
deemed  to  have  conceded  that  the  nature  of 
the  improvement  called  for  a  new  assess- 
ment of  damages,  or  to  have  stipulated  to 
make  the  same,  in  consideration  of  the 
benefits  acquired  by  it  under  the  grant. 
People  v.  Law,  34  Barb.  {N.  Y.)  494,  22 
//ow.  Pr.  109. 

If  the  company  neglects  or  refuses  to 
make  or  provide  for  such  compensation,  an 
injunction  will  be  granted  to  prevent  iuch 
an  appropriation  until  compensation  is 
provided  ;  but  such  injunction  cannot  issue 
in  the  name  of  the  people.  People  v.  Law, 
34  Barb.  (N.  Y.)  494.  22  //ow.  /V.  109. 

The  location  of  a  street  or  alley  on  a 
borough  plan,  with  the  view  of  being  regu- 
larly opened  thereafter,  of  itself  gives  to  a 
company  no  power  to  take  and  occupy  the 
same  in  the  construction  of  its  roadway 
without  compensation  to  the  owner  of  the 
land.  Quigley  v.  Pennsylvania  S.  V.  R.  Co., 
121  Pa.  St.  35.  n  Atl.  Rep.  478. 

For  injuries  done  to  the  owner  by  such 
taking  and  occupation  of  an  unopened 
street  or  alley,  even  though  no  excavation 
or  embankment  be  made  in  the  construc- 
tion of  the  roadway,  jurisdiction  is  given 
for  the  assessment  of  damages  by  the  re- 
port of  viewers  to  be  appointed  under  the 
statute.  Quigley  v.  Pennsylvania  S.  V.  R. 
Co.,  121  Pa.  St.  35.  15  Atl.  Rep.  478. 

107.  Coudemnatton  proceedings— 
When  unnecessary.  —  Notwithstanding 
the  constitutional  provision  that  private 
property  shall  not  be  damaged  for  public 
use  without  just  compensation,  a  company 
acquiring  the  right  to  lay  its  tracks  in  the 
streets  of  a  city  is  not  required  to  institute 
condemnation  proceedings  in  respect  of 
damages  which  may  accrue  to  owners  cf 
property  abutting  such  streets.  Penn 
Mutual  L.  /ns.  Co.  v.  //eiss,  141  ///.  35.  31 
.A^.  E.  Rep.  138. 

When  no  part  of  the  land  of  an  abutting 
lot  owner  is  entered  upon  or  sought  to  be 
condemned  for  public  use,  such  owner  is 
not  entitled  to  have  proceedings  instituted 
under  the  Eminent  Domain  Law  toascert.'tin 
what  damages  his  property  may  sustain  in 
consequence  of  the  construction  and  opera- 
tion of  a  railroad  in  an  adjoining  street,  but 
the  landowner  is  remitted  to  his  action  at 
law  to  recover  his  damages.  Penn  Mutual 
L.  /ns.  Co,  V.  Heist,  141  ///.  35,  31  N,  E. 
Rep.  138. 


STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  108,  lOO. 


ssa 


Where  the  legislature  nuthorixes  a  com- 
pany to  lay  its  track  in  certain  streets,  and 
the  city  government  consents  thereto,  no 
writ  of  ad  quod  damnum  Is  necessary  unless 
the  road  is  so  constructed  or  used  ns  to  be  a 
purpresture  or  nuisance  in  itself;  and  where 
It  appears  that  &  free  passage  is  left  throu(>;h 
the  streets,  and  their  ordinary  use  is  not  in- 
terrupted, such  use  of  the  streets  does  not 
constitute  a  nuisance,  nor  justify  an  injunc- 
tion to  restrain  the  running  of  cars  in  a 
proper  manner.  LextHf^ton  &*  O.  A'.  Co.  v. 
AppUgate.  8  Dana  {Ky.)  289.  -  Foi.ldwino 
O'Harn  v.  Lexington  tir  O.  R.  Co,,  i  Dana 
232. — Approved  in  Anderson  v.  Rochester, 
L.  &  N.  F.  R.  Co..  9  How.  Pr.  (N.  Y.)  553. 
CriticisiJ)  in  Adnms  v,  Chicago,  B.  &  N. 
R.  Co.,  36  Am.  k  Eng.  R.  Cas.  7,  39  Minn. 
286,  39  N.  W.  Rep.  629.  I  L.  R.  A.  493.  38 
Alb.  L.  J.  388.  DiSTiNr.ui.siir.D  IN  Kuchc- 
man  v.  Chicago,  C.  «S  D.  R.  Co,,  46  Iowa 
366;  Donnahcr  v.  Stale.  16  Miss.  649; 
Williams  v.  New  York  C.  R.  Co.,  16  N.  Y. 
97;  Portland  &  W.  V.  R.  Co.  v  Portland, 
27  Am.  &  Eng.  R.  Cas.  353.  14  Oreg.  188. 
Followed  in  Newport  &  C.  Hridge  Co.  v. 
Foote,  9  Bush  (Ky.)  264 ;  Fulton  v.  Short 
R.  R.  Transfer  Co.,  85  Ky.  640,  7  Am.  St. 
Rep.  619,  4  S.  W.  Rep.  332 ;  Gargan  v. 
Louisville,  N.  A.  &  C.  R.  Co.,  89  Ky.  212. 
Quoted  in  Ellzabethtown,  L  &  B.  S.  R. 
Co.  V,  Combs,  10  Bush  382  ;  Caro  v.  Metro- 
politan El,  R.  Co.,  14  J.  &  S.  (N.  Y.)  138; 
Sargent  v.  Ohio  &  M.  R.  Co.,  i  Handy 
(Ohio)  52.  Reviewed  in  Louisville  &  P. 
R.  Co.  V.  Louisville  City  R.  Co.,  2  Duv. 
(Ky.)  175  ;  Louisville  &  F.  R.  Co.  v.  Brown, 
17  B.  Mon.  (Ky.)  763 ;  Chapman  v.  Albany 
&  S.  R.  Co.,  10  Barb.  (N.  Y.)  360. 

When  private  property  has  been  taken  for 
a  specific  public  use  and  compensation 
made,  it  should  not  be  used  for  a  foreign 
purpose  without  a  new  legal  taking,  or  the 
consent  of  the  party  from  whom  it  was  de- 
rived; but  it  may  be  applied  to  any  new 
mode  of  user  tending  to  the  primary  or  gen- 
eral purpose.  Therefore  a  railroad  may  be 
laid  over  a  highway,  provided  it  is  so  con- 
structed as  not  to  be  incompatible  with  the 
use  of  the  highway  in  the  other  usual  modes 
of  passage  and  conveyance.  Fulton  v. 
Short  R.  R.  Transfer  Co.,  32  Am.  &*  Eng. 
R.  Cas.  256,  85  Ky.  640.  7  Am.  St.  Rep.  619, 
45.  W.  Rep.  112. 

108.  Right  to  institute  proceed- 
ings.—The  failure  of  a  company  to  locate 
its  road  within  a  city  within  the  time  re- 


quired by  its  charter  does  not  work  a  for- 
feiture of  its  right  to  ondemn  lands,  where 
the  consent  of  the  city  was  not  given  within 
the  time  prescribed  for  the  location  of  the 
road.     Illinois    C.   R.    Co.    v.    Rutktr,   14 

///■  3.';3. 

Where  a  city  council  has  granted  to  a 
company  the  right  to  lay  its  tr.trk  along  an 
alley,  under  Iowa  Code,  §  4^4,  equity  will 
not  interfere  to  restrain  the  company  from 
having  the  damngcs  to  abutting  property 
owners  assessed,  as  provided  in  said  section, 
and  from  appropriating  the  alley  upon  the 
payment  of  such  damages.  The  fact  that 
the  damages  to  abutting  property  will  be 
very  great  can  make  no  dilTerence  as  to  the 
right  of  the  company  to  proceed  under  the 
law.  Heath  v.  Des  Moines  &>  St.  L.  R.  Co., 
10  Am.  Sr'  Eng.  R.  Cas.  313,  61  Iowa  11,  15 
A^.  W.  Rep.  573.  —  D1.STINOUISHING  Chi- 
cago, N.  &  S.  W.  R.  Co.  V.  Mayor,  etc.,  of 
Newton,  36  Iowa  299;  Davis  v.  Chicago  & 
N.  W.  R.  Co.,  46  Iowa  389. 

The  statute  confers  upon  a  city  council 
no  authority  to  devote  the  streets  or  alleys 
to  a  railway  track  for  the  private'  benefit 
simply  of  an  individual ;  and  a  person  to 
whom  the  council  has  granted  authority  to 
lay  down  a  private  side  track  along  an  alley 
takes  thereunder  no  right  which  he  can  op- 
pose to  the  right  of  a  company  to  appropri- 
ate the  same  alley,  under  authority  from 
the  council.  Heath  v.  Des  Moines  &*  St.  L. 
R.  Co.,  10  Am.  <5-  Eng.  R.  Cas.  313,  61  loit/a 
11,15  A^.  f^-I^ep.  573.— Explaining  Clarke 
V.  Blackmar,  47  N.  Y.  150. 

City  authorities  authorized  a  company  to 
construct  and  maintain  its  road  through  a 
certain  street  on  condition  that  it  would 
maintain  a  swing  bridge  across  a  certain 
canal  so  as  not  to  impair  navigation,  and 
not  to  infringe  vested  private  rights.  In 
constructing  said  bridge  it  was  necessary  to 
swing  it  over  private  lands.  Held,  that  the 
company  had  the  right  to  institute  proceed- 
ings to  condemn  said  land,  though  no  part 
of  its  road  proper  passed  over  the  land. 
In  re  New  York,  L.  &>  IV.  R.  Co.,  33  Hutt 
{N.   Y.)  148  ;  affirmed  (f)  98  A^.   Y.  664. 

100.  Wlien  landowner  may  insti- 
twte  tlie  proceedlnB.s.  — Where  a  com- 
pany occupies  a  public  highway  for  its 
track,  without  appropriating  or  otherwise 
acquiring  the  right  to  do  so,  an  owner 
of  abutting  lands,  having  the  fee  in  the 
lands  covered  by  -he  highway,  may  pro- 
ceed, under  69  Ohio  L.  95,  §  21,  to  compel 


''  !; 

1  ■.;■  1 

;'   t 


ift'E     .f- 


684        STREETS   AND   HIGHWAYS  (RAILWAYS   IN),  110-113. 


the  company  to  appropriate  the  right  of  way 
for  its  road.  Lawrence  R.  Co.  v.  Williams, 
35  Ohio  St.  i68.— Applied  in  Grafton  v. 
Baltimore  &  O.  R.  Co.,  ^^  Am.  &  Eng.  R. 
Cas.  20O,  21  Fed.  Rep.  309.  Distinguished 
IN  Columbus,  S.  &  C.  R.  Co.  v.  Mowatt,  35 
Ohio  St.  284. 

The  remedy  for  obstructing,  by  a  railroad 
track,  an  alley  over  which  plaintiff  has  a 
right  of  way  is  not  by  action  denying  the 
right  of  entry  to  take  the  land,  but  by  appli- 
cation for  the  assessment  of  damages.  Phil- 
adelphia, W.  (&-  B.  R.  Co.  V.  Williams,  54 
Pa,  St.  103. — Distinguishing  Workman  z*. 
Mifflin,  30  Pa.  St.  371;  Voegtiy  v.  Pitts- 
burgh &  Ft.  W.  R.  Co..  2  Grant's  Cas. 
(Pa.)  245.— Followed  in  Phillips  v.  St, 
Clair  Incline  Plane  Co.,  153  Pa.  St.  230. 

110.  and  when  not.  —  Prior  to 

the  enactment  of  Wis.  Laws  <A  18S9,  ch. 
255,  the  owner  of  land  on  one  side  of  a 
street  was  not  entitled  to  maintain  con- 
demnation proceedings  by  reason  of  the 
building  of  a  track  along  the  oth^^r  side  of 
the  street,  wholly  beyond  the  centre  line 
thereof.  Sinnott  v.  Chicago  &*  N.  W.  R. 
Co.,  81  Wis.  95,  50  N.  W.  Rep.  1097.— AD- 
HERING to  Smith  V.  Eau  Claire,  78  Wis.  457. 

A  finding  of  the  trial  court  that  a  track 
so  built  before  the  enactment  of  the  above 
law  was  illegally  laid  down  is  not  sufficient  to 
give  the  owner  of  land  on  the  opposite  side 
of  the  street  a  right  to  naintain  condemna- 
tion proceedings  under  said  act,  since  the 
track  might,  nevertheless,  have  become 
legally  established,  and  thus  be  within  the 
saving  proviso  of  section  i.  Sinnott  v. 
Chicago  (^^  ./.  W.  R.  Co.,  81  Wis.  95,  50  N. 
W.  Rep.  1097, 

The  fact  that  when  the  track  was  built 
the  street  was  not  restored  to  its  former 
usefulness,  or  that  the  track  has  since  been 
used  in  an  unlawful  manner,  is  immaterial 
upon  the  question  of  the  right  to  maintain 
condemnation  proceedings.  Sinnott  \,  Chi- 
cago 5-  N.  W.  R.  Co.,  81  Wis.  95,  so  N.  W. 
Rep.  1097. 

If  the  lot  owners  on  the  side  of  the  street 
on  which  the  track  is  laid  make  no  objec- 
tion, the  lot  owners  on  the  opposite  side 
cannot  object  for  them  that  the  right  to  lay 
the  track  was  never  acquired  by  condemna- 
tion proceedings.  Sinnott  v.  Chicago  &*  N. 
W.  R.  Co.,  81  Wis.  95,  50  A''.  W.  Rep.  1097. 

111.  The  necessity  for  the  taking. 
— General  authority  to  a  corporation  to  con- 
demn a  site  for  its  railway 'will  not  authorize 


the  condemnation  of  a  highway  already 
constructed  by  authority  of  law  and  running 
longitudinally  therewith.  In  the  absence 
of  evidence  tending  to  show  a  necessity  for 
such  appropriation,  an  abandonment  by 
the  road  corporation  to  the  railroad  will  be 
presumed  voluntary  and  without  the  assent 
of  the  state.  Kenton  County  Court  v.  Bank 
Lick  Turnpike  Co.,  10  Bush  {Ky.)  529. 

In  the  absence  of  an  express  statute  to  that 
effect,  a  company  cannot  have  condemner'< 
and  appropriated  to  its  use  ad  libitum  land 
already  dedicated  to  the  public  for  streets, 
and  unless  such  precise  right  be  shown  to 
exist,  not  only  the  municipal  corporation, 
but  the  owner  of  the  fee,  may  have  an  in- 
junction to  prevent  such  condemnation, 
upon  the  ground  that  the  use  of  the  streets 
for  such  unauthorized  purpose  is  a  special 
injury  to  him.  Cornivall  v.  Louis7>ille  &-  N. 
R.  Co.,  87  Ky.  72,  9  Ky.  L.  Rep.  024,  7  S.  W. 
Rep.  553. 

112.  Only  property  described  in 
ordinance  can  be  condemned.— Un- 
der 111.  Rev.  St.  ch.  24,  art.  5,  §  1,  con- 
ferring upon  city  councils  the  power  "  to 
provide  for  and  change  the  location,  grade, 
and  crossing  of  any  railroad  "  within  a  city, 
a  company  that  has  located  its  road  through 
a  city,  under  an  ordinance,  cannot,  under  the 
right  of  eminent  domain,  acquire  property 
not  included  in  the  location  specified  in  the 
ordinance.  Tudor  v.  Chicago  &•  S.  S.  R.  T. 
R.  Co.,  (III.)  27  JV.  E.  Rep.  915.  — Reviewing 
Metropolitan  City  R.  Co.  v.  Chicago  W. 
D.  R.  Co.,  87  111.  317 ;  Chicago  &  W.  I.  R. 
Co.  V.  Dunbar,  100  III.  no;  Chicago  &  N. 
W.  R.  Co.  V.  Chicago  &  E.  R.  Co.,  112 
III.  589. 

A  city  ordinance  located  a  railroad  "  im- 
mediately adjacent  to  and  parallel  with  one 
of  the  alleys  or  alley  lines  "  between  certain 
designated  streets,  and  limited  the  right  of 
way  to  thirty  feet.  Held,  that  this  did  not 
authorize  the  company  to  condemn  thirty- 
one  feet  for  a  right  of  way,  twenty-five  feet 
of  which  is  on  one  side,  and  six  feet  of 
which  is  on  the  other  side,  of  the  west  line 
of  such  alley.  Tudor  v.  Chicago  6-  S.  S.  R. 
T.  R.  Co.,  (Til.)  27  A^.  E.  Rep.  915, 

113.  Riglit  to  condemn  before  ob- 
taining consent  of  city.  —  Conceding 
that  the  streets  of  a  city  cannot  be  used  by 
a  company  until  the  right  to  use  the  same 
has  been  granted  by  the  city  as  prescribed 
in  Cal,  Code,  §  470,  it  is  not  necessary  that 
such  grant  shall  first  be  obtained  in  order 


I  ! 


>  i 


■    r- 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  114-118.        585 


I  1 


\  > 


to  maintain  an  action  to  condemn  the  rights 
of  adjacent  landowners  in  such  streets. 
California  Southern  R.  Co.  v.  Kimball,  6i 
Cal.  9G. 

114.  Bight  to  enter  and  begin 
worlc  before  instituting  proceed- 
ings.— A  company  may  lawfully  enter  and 
occupy  streets  for  its  works,  and  proceed 
with  its  works,  before  instituting  proceed- 
ings to  ascertain  the  damages  that  may  re- 
sult to  others.  James  River  &*  K.  Co.  v. 
Anderson,  I2  Leigh  (Va.)  278. 

d.  Statutory  Provisions. 

1 15.  Connecticut.  —  A  provision  in 
the  charter  of  a  railroad  company  that  land 
may  be  taken  for  a  railroad  implies  that  it 
muy  be  taken  for  necessary  passenger  sta* 
tions  and  freight  depots.  And  land  that  is 
a  part  of  a  highway  can  be  taken,  with  the 
approval  of  the  railroad  commissioners,  as 
well  as  any  other  land.  And  it  can  be  taken, 
with  such  approval,  by  a  railroad  company 
whose  line  has  been  already  established,  for 
the  purpose  of  changing  the  location  of  its 
stations,  under  Conn.  Gen.  St.  §  3461.  Slate 
ex  rel.  v.  Railroad  Com'rs,  36  Am.  &*  Eng. 
R.  Cas.  510,  56  Conn.  308,  15  All.  Rep.  756. 

116.  Kansas.— Kan.  Comp.  Laws  1885, 
ch.  28,  §  47,  siibd.  4,  authorizing  the  con- 
struction of  railroads  in  streets,  is  not  in 
contravention  of  Kan.  Const,  art.  12,  §  4,  or 
of  the  fifth  amendment  to  the  Constitution 
of  \h?.  United  States,  as  the  constitutional 
right  to  compensation  for  private  property 
taken  for  public  use  does  not  extend  to  in- 
stances where  the  land  is  not  actually  taken, 
but  is  indirectly  or  consequentially  injured. 
Ottawa,  O.  C.  &*  C.  G.  R.  Co.  v.  Larson,  36 
Am.  &*  Etig.  R.  Cas.  163,  40  A'an.  301,  2  L. 
R.  A.  59,  19  Pac.  Rep.  661.— Explaining 
Central  Branch  U.  P.  R.  Co.  v.  Twine,  23 
Kan.  585 ;  Central  Branch  U.  P.  R.  Co.  v. 
Andrews,  26  Kan.  702.  Quoting  Atchison 
&  N.  R.  Co.  V.  Garside,  10  Kan.  552.— Fol- 
lowed IN  Ottawa,  O.  C.  &  C.  G.  R.  Co.  v. 
Peterson,  40  Kan.  310. 

117.  Mississippi.— A  statute  of  1823 
vests  the  title  to  the  streets  of  Jackson  in 
the  city,  and  deprives  the  legislature  of  the 
powp'  lo  dispose  of  them,  except  so  far  as 
X.\\e  jus  publicum  or  the  rights  of  eminent 
domain  may  authorize  it ;  the  right  to  the 
streets,  therefore,  being  in  the  city,  they 
cannot  be  subjected  to  the  use  of  a  railroad 
without  the  consent  and  contract  of  the 
city,  or  without  the  assessment  and   pay- 


ment of  damages  according  to  law.  Z>«m- 
naher  v.  State,  16  Miss.  649. 

118.  New  Yorlc.— The  General  Rail- 
road Act  of  April  2, 1850,  §  28,  provides  that 
corporations  formed  thereunder  shall  hav'; 
the  power  to  construct  their  roads  across, 
along,  and  upon  any  stream  of  water,  water- 
course, street,  highway,  plank  road,  turn- 
pike, or  canal,  which  the  route  of  the  road 
shall  intersect  or  touch.  Held,  that  this 
only  grants  the  right  which  the  public  may 
have  in  such  streams  or  highways,  and  does 
not  give  the  right  to  appropriate  the  private 
property  therein,  without  the  consent  of  the 
owner,  or  compensation.  Ellicottville  &»  G. 
V.  Plank  Road  Co.  v.  Buffalo  d-  P.  R.  Co., 
20  Barb.  (N.  V.)  644. 

A  right  of  way  in  a  village  street,  appur- 
tenant to  an  abutting  lot,  may  be  condemned 
for  railroad  purposes.  Buffalo,  N.  V.  &•  P. 
R.  Co.  V.  Overton,  35  Hun  (N.  V.)  157. 

The  act  of  April  9,  1867,  for  the  con- 
struction of  what  is  known  as  the  Southern 
boulevard,  in  New  York  city,  provided  that 
the  owners  of  the  land  taken  therefor  should 
have  a  right  .0  claim  the  full  value  of  the 
land  from  any  person  or  corporation  who 
sliould  subsequently  be  authorized  by  the 
legislature  to  construct  a  railroad  thereon. 
Held,  that  the  fee  to  such  land  was  not 
taken  for  the  purpose  of  the  boulevard,  and, 
independently  of  the  statute,  such  owners 
might  recover  damages  if  a  railroad  was 
subsequently  laid  thereon.  Spofford  v. 
Southern  Boulevard  R.  Co.,  15  Daly  162,4 
N.  V.  Supp.  388,  22  N.  V.  S.  R.  246.— Re- 
viewing Washington  Cemetery  v.  Pros- 
pect Park  &  C.  I.  R.  Co.,  68  N.  Y.  591 ;  Craig 
V.  Rochester  City  &  B.  R.  Co.,  39  N.  Y.  404. 

In  1887  the  legislature  passed  an  act 
amending  the  act  of  1867,  which  permitted 
the  construction  of  a  railroad  on  such  boule- 
vard, by  any  company  organized  under  the 
General  Railroad  Act  of  1884,  upon  comply- 
ing with  that  statute  by  obtaining  the  con- 
sent of  the  local  authorities  and  the  prop- 
erty owners ;  but  the  provision  as  to  full 
compensation  wa3  omitted.  Held,  that  the 
right  of  the  landowners  to  additional  com- 
pensation still  existed,  and  the  act  of  1S87 
would  be  unconstitutional  if  it  attempted  to 
defeat  the  right  to  recover  further  compen- 
sation, spofford  V.  Southern  Boulevard  R. 
Co.,  IS  Daly  162,  4  N.  Y.  Supp.  388,  22  N.  Y. 
S.  R.  246. 

The  above  act  o'  1887  .s  not  unconstitu- 
tional in  so  far  as  it  authorizes  a  company 


586        STREETS  AND  HIGHWAYS   (RAILWAYS  IN),  110-121 


V)        ..        !i 


'A- '.;-'; 


organized  under  the  General  Railroad  Act  to 
construct  a  road  on  said  boulevard,  in  view 
of  the  fact  that  the  act  of  1867  provided  that 
only  a  company  authorized  by  a  special  act 
of  the  legislature  should  construct  such 
road,  and  that  the  state  Constitution  had 
been  consequently  amended  so  as  to  pro- 
hibit the  granting  of  such  special  statute. 
Spofford  V.  Southern  Boulevard  R.  Co.,  1 5 
Daly  162,  4  A^.  Y.  Sufip.  388,  22  N.  V.  S. 
E.  246. 

The  above  act  of  1867  constitutes  a  con- 
tract between  the  landowners  and  the  state, 
which  the  legislature  has  no  power  by  sub- 
sequent action  to  impair,  and  upon  con- 
demnation by  a  railroad  the  owners  are 
entitled  to  receive  the  actual  value  of  their 
land,  as  though  no  street  had  ever  been 
opened.  In  re  Southern  Boulevard  R.  Co., 
35  A^.  Y.  S.  R.  550,  12  A^.  Y.  Supp.  466,  58 
Hun  497 ;  appeal  dismissed  in  128  N.  Y.  93, 
38  A^.  Y.  S.  R.  844.  27  N.  E.  Rep.  1073. 

110.  Pennsylvania.  — The  rights  en- 
joyed by  the  Sunbury  &  Erie  and  the  Penn- 
sylvania railroad  companies  "  for  settling 
and  obtaining  the  right  of  way,"  under  the 
act  of  1859,  do  not  include  the  mode  of 
settling  differences  between  township  au- 
thorities and  a  railroad  company  which  had 
taken  possession  of  a  public  road,  but  relate 
to  private  property,  which,  under  the  Con- 
stitution, cannot  be  taken  without  compen- 
sation. Danville,  H.  &>  W.  R.  Co.  v.  Com., 
73  Pa.  St.  29. 

The  laying  of  an  additional  track  on  a 
street,  in  front  of  plaintiff's  property,  which 
took  none  of  it,  but  obstructed  the  approach 
thereto,  does  not  come  within  the  Pa.  Act  of 
Feb.  19,  1849,  §  "•  providing  for  the  assess- 
ment of  damages  sustained  "by  reason  of 
any  excavation  or  embankment  made  in  the 
construction  of  the  road."  Cumberland 
Valley  R.  Co.  v.  Rhoadarmer,  107  Pa.  St.  214. 

e.  What  is  a  Taking  or  Injuring.    Rights 
Acquired  by  Company. 

120.  What  constitutes  a  "taking." 

— Where  the  property  of  an  abutting  lot 
owner  is  damaged  by  the  construction  and 
operation  of  a  railroad  upon  a  public  street 
under  license  of  the  municipal  authorities, 
there  will  be  a  forced  deprivation  of  prop- 
erty, or  damaging  of  the  same,  without  the 
owner's  consent,  and  this  in  every  just  sense 
it  a  taking  of  private  property  of  such 
owner  to  the  extent  to  which  his  property 


is  thus  damaged.    Penn  Mutual  L,  Ins.  Co, 

V.  Jfeiss,  141  ///.  35.  3'  ^-  ^-  ^'P-  >38- 

Where  abutting  lot  owners  own  the  fee  to 
the  middle  of  the  street,  subject  only  to  the 
public  easement  in  the  street,  the  appropri- 
ating of  such  street  for  railway  purposes  is 
a  taking  of  private  property  for  public  use, 
and  can  only  be  done  upon  making  full 
compensation  to  such  owners.  People  v. 
Law,  34  Barb.  {N.  K.)  494,  22  How.  Pr.  109. 

The  construction  and  operation  of  a  steam 
railroad  in  a  public  highway,  impairing 
access  to  an  abutting  owner's  property,  ob- 
structing the  free  passage  of  light  and  air, 
and  subjecting  him  to  inconvenience,  an- 
noyance, and  danger  by  the  emission  of 
smoke  and  sparks  from  its  locomotive  en- 
gines, the  ringing  of  bells  and  blowing  of 
steam  whistles,  and  the  jarring  of  buildings 
by  passing  trains,  is  a  "  taking  "  of  property, 
within  the  meaning  of  the  Constiiution,  en- 
titling him  to  compensation.  Cincinnati, 
I.,  St.  L.  <S-  C.  R.  Co.  V.  Pfitzer,  1  Ohio 
Prob.  248. 

121.  What  is  not  a  "taking."  — 
The  erection  by  a  municipal  government, 
within  the  limits  of  a  street  and  for  street 
purposes  and  under  street  conditions  justi- 
fying it,  of  a  viaduct  for  the  purpose  of 
changing  the  grade  of  the  street,  and  in  the 
exercise  of  its  power  to  change  such  grades, 
is  not  a  "taking"  or  "appropriation"  of 
private  property,  within  the  constitutional 
guaranty  against  such  taking  or  appropria- 
tion, even  though  the  abutting  owners' 
rights  of  ingress,  egress,  light,  and  air  are 
destroyed ;  nor  is  this  result  of  law  changed 
by  the  mere  fact  that  other  corporate  bodies 
than  the  municipality  have  contributed  to 
the  expense  of  the  erection  of  the  viaduct. 
Whether,  however,  it  would  not  be  a  diver- 
sion of  the  street  from  the  street  purposes, 
and  a  "taking"  and  "appropriation"  for 
which  compensation  must  be  made,  if  the 
necessity  for  the  viaduct  was  created  by 
railroad  tracks  crossing  the  street,  not  pre- 
sented. Selden  v.  Jacksonville.  28  Fla.  558. 
10  So.  Rep.  457.— Distinguishing  Corning 
V.  Lx)werre,6Johns.  Ch.  (N.  Y.)439;  Barney 
V.  Keokuk,  94  U.  S.  324 ;  People  v.  Kerr,  27 
N.  Y.  188;  Kellingerv.  Forty -second  St.  & 
G.  S.  F.  R.  Co.,  50  N.  Y.  206. 

The  fee  to  the  streets  of  New  York  c 'v 
opened  in  pursuance  of  the  act  of  181 3 
vests  in  the  city,  and  authorizing  a  corpora- 
tion to  use  such  streets  for  the  purposes  of 
a  railroad  does  not  take  any  property  be- 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN).  122. 


687 


longing  to  the  abutting  owners.  Sixth 
Ave.  R.  Co.  V.  Gilbert  El.  R.  Co.,  ii  /.  <S-  5, 
(A'^.  Y.)  292,  3  Abb.  N.  Cas.  372;  reversing 
9J.&-S.  489. 

A  company  removed  its  track  in  a  public 
street  nearer  to  a  landholder's  lot,  but  within 
the  limits  of  the  street.  Held,  that  this  was 
not  taking  his  land  within  the  meaning  of 
the  Constitution,  although  his  line  may  have 
been  the  middle  of  ihe  street.  Snyder  v. 
Pennsylvania  R.  Co.,  55  Pa.  St.  340. 

The  regulation  or  enlargement  of  the  use 
of  a  street,  the  property  of  the  state,  by  the 
legislature,  so  as  to  permit  the  construction 
of  a  railroad  track  thereon,  whereby  th.; 
owners  of  adjacent  lots  may  suffer  incoii- 
venience  and  injury,  is  not  a  taking  of  prop- 
erty within  the  meaning  of  the  Constitution 
of  1869.  Houston  &^  T.  C.  R.  Co.  v.  Odum, 
2  Am.  &»  Eng.  R.  Cas.  503,  53  Tex.  343. 

122.  What  is  a  « danmging,"  <•  in- 
juring," or  "injuriously  aflTectinfir/* 
— Abutting  lot  owners  have  a  peculiar  in- 
terest in  the  street  not  shared  by  others. 
Their  easement  is  property  within  the  mean- 
ing of  our  Constitution,  and  any  interference 
therewith  which  results  in  injury  will  (with 
certain  exceptions)  be  justly  compensated, 
there  being  a  damaging,  if  not  a  taking,  of 
private  property.  Wliatever  interference 
with  the  street  permanently  diminishes  the 
value  of  their  premises  is  as  much  a  damage 
as  though  caused  by  direct  physical  in- 
jury thereto.  Denver  \.  Bayer,  T  Colo.  113, 
2  Pac.  Rep.  6.— Distinguishing  Colorado 
C.  R.  Co.  V.  Mollandin,  4  Colo.  154.  Quot- 
ing Rigney  v.  Chicago,  102  III.  64.  Re- 
viewing M'Carthy  v.  Metropolitan  Board 
of  Works.  L.  R.  7  C.  P.  508 ;  East  &  W.  I. 
Docks  v.Gattke,  3  Macn.  &  G.  155  ;  Beckett 
v.  Midland  R.  Co.,  L.  R.  3  C.  P.  82  ;  Ricket 
V.  Metropolitan  R.  Co.,  L.  R.  2  H.  L.  175; 
Northern  Transp.  Co.  v.  Chicago,  99  U.  S. 
635.— Applied  in  Denver  Circle  R.  Co.  v. 
Nestor,  10  Colo.  403,  15  Pac.  Rep.  715. 

Sometimes  interferences  and  the  result- 
ing injury  may  properly  be  held  to  be  dam- 
num absque  injuria,  as  where  they  are  occa- 
sioned by  a  reasonable  improvement  of  the 
street  by  the  proper  authorities  for  the 
greater  convenience  of  the  public,  or  where 
i  temporary  inconvenience  or  injury  results 
from  a  legitimate  use  thereof  by  the  public. 
In  purchasing  his  lot  or  dedicating  the  ease- 
ment to  the  public,  the  abutting  owner  is 
conclusively  presumed  to  have  contemplated 
the  power  and  authority  of  the  city  council 


to  make  reasonable  changes  and  improve- 
ments skilfully,  by  raising  or  lowering  the 
grade,  or  otherwise.  But  these  presump- 
tions attach  only  when  the  purpose  of  the 
change  is  to  render  the  street  more  con- 
venient and  useful  as  a  public  highway. 
Denver  V.  Bayer,  7  Colo.  113,  2  Pac.  Rep.  6. 

Where  a  railroad  is  constructed  upon 
town  lots  abutting  on  a  street,  so  near  to 
the  street  as  to  cause  an  embankment 
therein,  across  from  and  opposite  to  either 
end  of  respondent's  lot,  depriving  him  of  the 
free  use  of  the  streets  adjacent  to  and 
abutting  on  his  lot,  the  lot  being  thereby 
depreciated  in  value,  to  his  damage,  he  may 
recover  his  damages  from  the  railroad  com- 
pany, even  though  no  part  of  his  lot  be 
taken,  and  no  part  of  the  street  in  front 
thereof  be  occupied  by  the  railroad.  Chi- 
cago,  K.  &•  N.  R.  Co.  v.  Hazels,  26  Neb.  364. 
— Applied  in  Atchison  &  N.  R.  Co.  v. 
Boerner,  34  Neb.  240. 

A  company  built  its  track  along  an  alley 
and  across  a  street  at  an  elevation  of  twenty 
feet  above  the  level  of  the  ground,  upon 
trestle  work,  the  benches  of  the  foundation 
of  which  rested  mostly  in  the  alley,  but  ex- 
tended over  on  the  lots  adjacent  and  into 
the  street,  being  about  twenty  feet  apart. 
The  company  condemned  twenty-five  feet  of 
certain  lots  next  to  the  alley  for  right  of 
way.  Held,  that  the  construction  of  the 
track  was  a  direct  injury  to  the  property, 
for  which  the  owner  was  entitled  to  recover 
damages.  Atchison  &*  N.  R.  Co.  v.  Forney, 
35  Neb.  607,  53  N.  W.  Rep.  585. 

If  a  railroad  track  is  laid  so  close  to  the 
curbstone  on  the  side  of  the  street  next  to 
plaintiff's  property  that  the  access  thereto, 
if  not  actually  cut  off,  is  rendered  dangerous, 
plaintiff's  property  is  "  injured  "  by  the  con- 
struction of  the  railroad,  within  the  mean- 
ing of  Pennsylvania  Constitution,  and  not 
merely  by  the  use  and  operation  of  the  road, 
and  plaintiff  is  entitled  to  compensation. 
Pennsylvania  S.  V.  R.  Co.  v.  Walsh,  38 
Am.  &•  Eng.  R.  Cas.  466,  124  Pa.  St.  544, 
17  Atl.  Rep.  186.— Distinguishing  Penn- 
sylvania R.  Co.  V.  Marchant,  119  Pa.  St. 
541 ;  Pennsylvania  R.  Co.  v.  Lippincott,  116 
Pa.  St.  472.— Followed  in  Pennsylvania 
S.  V.  R.  Co.  V.  Ziemer,  124  Pa.  St.  560. 

A  company,  under  its  acts  of  incorpora- 
tion, and  under  a  by-law  of  a  municipality, 
ran  its  road  through  and  along  a  street  to 
which  the  lands  of  appellant  were  adjacent. 
Held,  upon  application  for  a  mandamus  on 


588        STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  123-128. 


S  i 


the  company,  that  if  the  works  complained 
of  amounted  to  a  public  nuisance,  it  would 
not  be  a  case  for  private  compensation,  and, 
if  authorized  by  law,  that  the  works  did  not 
injuriously  affect  the  applicant  within  the 
meaning  of  the  statute  (14  &  15  Vict.  c.  51, 
§  4)  providing  for  compensation  for  lands 
"taken  or  injuriously  affected."  Day  v. 
Grand  Trunk  A'.  Co.,  5  I/.  C.  C.  P.  420.— 
Reviewed  in  Queen  v.  Barry,  2  Can.  Exch. 

333- 

1 23.  What  passes  —  Interest  ac- 
quired.—The  condemnation  of  land  in  a 
street  for  the  use  of  a  railroad  company,  to 
enable  it  to  lay  and  operate  its  track,  gives 
it  no  title  to  the  land  condemned,  nor  any 
interest  therein  except  a  mere  easement,  in 
common  with  the  general  public.  Southern 
Pac.  R.  Co.  v.  Reed,  41  Cal.  256,  3  Am.  Ry. 
Rep.  46. 

Plaintiff  was  the  owner  of  certain  lots  in 
a  city  of  the  first  class;  an  ordinance  was 
duly  passed  vacating  the  street  in  front  of 
her  lots  ;  thereafter  condemnation  proceed- 
ings were  had  in  behalf  of  a  railroad  com- 
pany for  the  condemnation  of  those  lots, 
tiicy  being  described  simply  by  number,  etc., 
without  any  addition  of  boundaries  or  other 
description.  Held,  that,  under  Kan.  Laws 
1881,  ch.  37,  §  34,  if  the  title  to  such  portion 
of  the  vacated  street  as  was  situated  in  front 
of  the  lots  passed  to  her,  such  portion  be- 
came, as  it  were,  an  accretion  to  the  lots,  a 
part  or  parcel  of  them,  and  passed  under 
any  conveyance  or  transfer  of  the  lots,  eo 
nomine.  Atchison,  T.  &*  S.  F.  R,  Co.  v. 
Patch,  28  R'an.  470.— Followed  in  Chaliiss 
V.  Atchison  Union  D.  &  R.  Co., 45  Kan.  398. 

Where,  in  condemnation  proceedings  by 
a  company,  a  village  lot  is  appropriated 
under  the  description  thereof  in  a  survey 
and  plat  of  the  same,  the  company  takes 
presumptively  to  the  centre  of  the  street. 
And,  subject  to  the  public  easement  and 
control  of  the  proper  public  authorities,  the 
company  acquires  the  same  interest  in  that 
portion  of  the  lot  so  taken  lying  in  the  street 
as  in  the  remainder  thereof,  and  may  apply 
it  to  tiie  same  uses.  IVitt  v.  St.  Paul  &» 
N.  P.  R.  Co.,  38 Minn.  \22,il  N.W. Rep.  862. 

124.  Nature  of  the  company's  oc- 
cupancy.—  Where  a  railway  corporation 
locates  and  constructs  its  road  upon  a  pub- 
lic highway,  under  an  appropriation  thereof 
authorized  by  the  statute,  its  occupation  of 
the  highway  is  a  kind  of  sufferance.  Mc- 
Quaidv,  Portland &*  V,  Ji.  Co.,  40  Am.  &• 


Eng.  R.  Cas.  308,  18  Ortj^.  237,  22  Pac.  Rep. 
899. 
126.    Boundaries  of  the  right  of 

way.— A  company  authorized  by  charter  to 
take  for  a  right  of  way  a  strip  not  exceed- 
ing sixty  feet  wide  may  limit  the  width  to 
less  than  sixty  feet ;  but  unless  such  limita- 
tion affirmatively  appears,  it  will  be  presumed 
that  it  appropriated  the  full  sixty  feet. 
Jones  V.  Erie  6-  W.  V.  R.  Co.,  144  Pa.  St. 
629,  23  Atl.  Rep.  251. 

The  right  of  way  appropriated  is  not  de- 
fined by  the  extent  of  the  company's  actual 
possession  and  use  of  the  land.  So,  the 
lines  of  a  street  on  which  a  company  locates 
the  centre  line  of  its  road  and  lays  its  tracks 
are  not  necessarily,  nor  even  presumptively, 
the  boundaries  of  its  right  of  way ;  these 
may  be  within,  beyond,  or  upon  the  lines  of 
the  street.  Jones  v.  Erie  6-  W.  V.  R.  Co., 
144  Pa.  St.  629,  23  Atl.  Rep.  251.— DISTIN- 
GUISHED IN  Pennsylvania  S.  V.  R.  Co.  v. 
Philadelphia  &  R.  R.  Co.,  157  Pa.  St.  42. 

d.  Procedure;  Pleading;  Defenses. 

126.  In  general. — A  company  seeking 
to  acquire  a  right  of  way  through  the  streets 
of  a  city  is  entitled  only  to  such  investiga- 
tion, judicially  or  otherwise,  as  the  people 
have  seen  fit  to  grant  it  as  a  condition  pre- 
cedent to  obtaining  a  vested  right  over  a 
public  street.  Fort  St.  Union  Depot  Co.  v. 
State  R.  Crossing  Board,  45  Am.  6-  Eng;.  R. 
Cas.  113,  81  Mich.  248,  45  N.  IV.  Rep.  973. 
—Distinguishing  Chicago,  M.  &  St.  P. 
R.  Co.  V.  Minnesota,  134  U.  S.  418,  10  Sup. 
Ct.  Rep.  462. 

127.  Notice  to  occupants.  —  A  rule 
of  court  requiring  notice  to  the  person  oc- 
cupying, or  the  owner  of,  improved  land 
over  which  a  road  is  laid  out  applies  to  land 
occupied  by  a  railroad,  and  requires  notice 
to  the  company.  Road  in  Lancaster  City, 
68  Pa.  St.  396. 

128.  Endeavor  to  agree  with  land- 
owner. —  A  corporation  organized  under 
N.  Y.  Act  of  1884,  ch.  252,  providing  for  the 
construction  of  street  surface  railroads,  and 
proposing  to  construct  its  road  through  dif- 
ferent streets  of  a  city,  upon  failure  to  ob- 
tain the  requisite  consent  of  the  property 
owners  upon  one  street,  or  any  number  less 
than  all  that  are  named  in  its  articles  of 
association,  may  apply  to  court  for  the  ap- 
pointment of  commissioners  to  determine 
whether  the  rond  shall  be  constructed  along 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  120-132.        689 


those  streets,  upon  petition  setting  forth 
the  fact  of  such  failure  as  to  them,  without 
including  all  the  streets  named  in  the  arti* 
cles.  And  the  company  is  not  confined  to 
one  application.  Jn  re  People's  K,  Co.,  112 
N.  y.  578.  21  N.  y.  S.  R.  496,  20  N.  E.  Rep. 
367 ;  affirming  48  Hun  617,  mem. 

Those  persons  only  who  are  interested  in 
property  along  the  street  or  streets  in  re- 
gard to  which  the  petition  is  presented  are 
proper  parties.  In  re  People's  R.  Co.,  112 
A^.  y.  578,  21  A^.  K.  S.  R.  496.  20  N.  E.  Rep. 
367  ;  affirming  48  Hun  617,  mem. 

The  affidavit  accompanying  the  petition 
upon  which  such  a  proceeding  was  based 
gave  a  list  of  thv.  property  owners  who  had 
been  applied  to  and  who  had  refused  their 
consent,  a  list  of  the  streets  in  which  the 
persons  so  applied  to  lived,  and  the  valua- 
tion la  each  street  of  the  property  owned 
by  each  person  so  refusing.  The  petition 
showed  the  total  valuation  of  property  upon 
that  portion  of  each  street  mentioned  along 
which  the  company  proposed  to  construct 
its  road,  and  it  appeared  therefrom  that  the 
refusals  represented  more  than  half  of  the 
total  valuation.  Held,  that  the  papers  were 
sufficient  to  confer  jurisdiction.  In  re  Peo- 
ple s  R.  Co.,  112  N.  y.  578.  .^  N.  y.  S.  R. 
496,  20  A^.  E.  Rep.  367 ;  affirming  48  Hun 
617,  »»*»»,— Distinguishing  In  re  Broad- 
way Underground  R.  Co.,  23  Hun  693 ; 
In  re  Broadway  Surface  R.  Co.,  36  Hun 
644;  In  re  New  York  Cable  R.  Co.,  36 
Hun  355. 

Such  petition  further  alleged  that  the 
consent  of  the  common  council  of  the  city 
in  which  the  road  was  proposed  to  be  con- 
structed was  duly  given  on  a  day  named. 
Held,  sufficient.  Nothing  in  the  statute  re- 
quires an  averment  that  such  consent  has 
been  filed  in  the  clerk's  office  as  a  condition 
precedent  to  the  application.  In  re  People's 
R.  Co.,  \12  N.  y.  578,  21  N.  y.  S.  R.  496, 
20  A^.  E.  Rep.  367  ;  affirming  48  Hun  617, 
mem. 

129.  Pleading^.  ~  In  a  proceeding  to 
condemn  land,  including  certain  streets  in  a 
city,  for  the  use  of  plaintiff's  railroad,  it  was 
objected  on  demurrer  that  the  complaint 
did  not  allege  that  the  authorities  of  the 
city  had  granted  to  plaintiff  the  right  to  use 
the  streets.  Held,  that  the  demurrer  was 
properly  overruled.  California  Southern 
R.  Co.  V.  Kimball,  61  Cal.  90. 

130.  Defenses,  generally.— Where  a 
railway  corporation   is  limited   by  the  au- 


thorities of  an  incorporated  village  or  town 
to  thirty  feet  in  the  centre  of  a  public  street 
on  which  to  locate  its  main  track,  and  it 
becomes  necessary  to  construct  a  switch  or 
side  track,  it  is  no  objection  to  the  con- 
demnation of  land  for  that  purpose  that  it 
runs  at  right  angles  with  the  main  track, 
there  not  being  room  enougii  in  the  right 
of  way  along  the  street  for  the  side  track 
in  addition  to  its  two  main  tracks.  South 
Chicago  R.  Co.  v.  Dix,  17  Am.  &*  Eng.  R. 
Cas.  157,  109  ///  237. 

The  right  of  the  puWjc  to  use. a  street 
cannot  be  set  up  as  a  defense  by  a  lot  owner 
whose  rights  are  to  be  appraised.  Buffalo, 
N.  y.  &*  p.  R.  Co.  V.  Overton,  35  Hun  (N. 

y)  IS7. 

131. expiration  of  period  al- 
lowed by  charter  within  which  to 
build  road.— Individuals  may  resist  the 
condemnation  of  their  lands  for  a  right  of 
way  for  a  railroad  after  the  expiration  of 
the  time  given  by  the  charter  of  the  com- 
pany for  the  completion  of  the  road,  but 
cannot  interfere  to  prevent  the  company 
extending  its  road  after  the  expiration  of  that 
time  over  a  right  of  way  acquired  before 
the  expiration.  A  city  is  an  individual 
within  the  meaning  of  this  rule,  so  that 
where  a  company  is,  by  its  charter,  author- 
ized to  build  its  road  along  or  across  the 
streets  of  any  city  or  town,  a  city  cannot 
prevent  it  from  making  an  extension  or 
building  a  branch  road  over  one  of  its 
streets  on  the  ground  that  the  time  limited 
by  charter  for  the  completion  of  the  road 
has  expired.  The  state  alone  can  proceed 
against  the  company  to  arrest  the  work  on 
that  ground.  Atlantic  &•  P.  R.  Co.  v.  St. 
Louis,  66  Mo.  228 ;  reversing  3  Mo.  App. 
315.— Distinguishing  Brooklyn  C.  R.  Co. 
V.  Brooklyn  City  R.  Co.,  32  Barb.  (N.  Y.) 
364,  I  Am.  Ry.  Cas.  150;  Morris  &  E.  R. 
Co.  V.  Central  R.  Co.,  31  N.  J.  L.  207; 
Attorney-General  v.  West  Wis.  R.  Co.,  36 
Wis.  466.  Quoting  Peavy  v.  Calais  R. 
Co.,  30  Me.  499  ;  Land  v.  Coffman,  50  Mo. 
252;  Mississippi  &  T.  R.  Co.w.  Devaney,  42 
Miss.  555.  Reviewing  and  quoting  Ross 
V.  Chicago,  B.  &  Q.  R.  Co..  77  III.  127. 

1 32. questioning  corporate  ex- 
istence.—A  municipal  corporation  has  the 
same  right  to  question  the  corporate  exist- 
ence and  the  rights  of  a  railroad  corpora- 
tion seeking  to  use  its  streets  as  a  private 
owner  would  h.ive  where  the  use  of  his 
property  is  sought.    Brooklyn  Steam  Transit 


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690        STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  133, 134. 

Co.  V.  Brooklyn,  78  N.  Y.  524.— Follow- 
ing In  re  Brooklyn,  W.  &  N.  R.  Co.,  72 
N.  Y.  245. 


m.  BIOHTS  OF  ABUTTIHO  OWNXBB. 
I.  In  General. 

133.  Nature  of  abutter's  interest 
in  the  street.*  —  The  owner  of  property 
abutting  upon  a  street  has  certain  rights  in 
said  street  which  attach  to  his  property,  and 
are  Icnown  in  law  as  an  easement.  This 
easement  is  property  in  constitutional  intent, 
and  is  subject  to  talcing  just  as  the  land  it- 
self is,  and  when  this  easement  is  interfered 
with,  in  whole  or  in  part,  the  party  interfer- 
ing must  pay  for  the  damage  done  the  same. 
Streyer  v.  Georgia  Southern  &*  F.  R.  Co.,  51 
Am.  &*Eng.  R.  Cat.  638,  90  Ga.  56,  it,  S.  E. 
Rep.  6yj.  Elizabethtown,  L.  &»  B.  S.  R.  Co. 
V.  Comds,  10  BusA  (Ky.)  382.— FOLLOWING 
Gardner  v.  Newburgh,  2  Johns.  Ch.  (N.  Y.) 
166.  Quoting  Lexington  &  O.  R.  Co.  v. 
Applegate,  8  Dana  (Ky.)  302;  Newport  & 
C.  Bridge  Co.  v,  Foote,  9  Bush  264.  Re- 
viewing Hooker  v.  New  Haven  &  N.  Co.,  14 
Conn.  151  ;  Stevens  v.  Middlesex  Canal,  12 
Mass.  466 ;  Louisville  &  F.  R.  Co.  v.  Brown, 
17  B.  Mon.  (Ky.)  772 ;  Cosby  v.  Owens- 
boro  &  R.  R.  Co.,  10  Bush  288.— Criticised 
IN  Adams  v.  Chicago,  B.  &  N.  R.  Co.,  36  Am. 
&  Eng.  R.  Cas.  7,  39  Minn.  286,  39  N.  W. 
Rep.  629,  I  L.  R.  A.  493,  38  Alb.  L.  J.  388. 
■—Tate  V.  0/iio  6*  M.  R.  Co.,  7  Ind.  479. 

The  reservation,  in  a  plat  of  an  addition 
to  a  city,  of  the  right  to  occupy  streets  for 
railroad  purposes  is  only  a  reservation  as 
against  the  city,  and  cannot  be  used  to  op- 
press private  property  owners.  Riedinger  v. 
Marquette  &*  W.  R.  Co.,  29  Am.  d-  Eng.  R. 
Cas.  61 1,  62  Mich.  29,  28  A'^  IV.  Rep.  775. 

Plaintiff  was  owner  and  occupant  of  an 
"nplatted  tract  of  land,  adjoining  a  platted 
tract,  and  abutting,  in  part,  upon  the  head 
of  a  street  laid  out  on  such  platted  tract. 
Held,  that  plaintiff,  simply  as  owner  and 
occupant  aforesaid,  had  no  estate  or  interest 
in  a  part  of  such  street  upon  which  his  tract 
did  not  abut,  and  that,  therefore,  he  could 
not  complain  of  obstructions  maintained  in 
such  part  by  a  railroad  company,  upon  the 

*  Construction  of  railroads  in  streets.  Rights 
of  abutters,  see  notes,  7  Am.  &  Eng.  R.  Cas. 
623 ;  38  Id.  468  ;  46  Id.  52  ;  31  Am.  St.  Rep. 
733  ;  3  L.  R.  A.  565  ;  4  Id.  623  ;  14  Id.   381. 

Right  of  abutting  owner  on  street  where  lot  is 
conveyed  by  metes  and  bounds,  see  note,  4  L. 
R.  A.  624. 


ground  of  an  appropriation  of  the  same 
without  compensation  to  him  made  or  se- 
cured. Shaubut  v.  St.  Paul&^  S.  C.  R.  Co., 
21  Minn.  502,  19  Am.  Ry.  Rep.  223.— Fol- 
lowed IN  Rochette  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  17  Am.  &  Eng.  R.  Cas.  192,  32 
Minn.  201 ;  Barnum  v.  Minnesota  Transfer 
R.  Co.,  33  Minn.  363. 

An  act  of  the  legislature,  or  an  ordinance 
of  a  city,  authorizing  a  company  to  con- 
struct its  road  in  a  public  street,  gives  it  the 
right  to  do  10  only  as  against  the  public, 
but  not  as  against  owners  of  the  abutting 
premises  having  private  property  rights  in 
the  street.  And  where  a  member  of  a  city 
council  votes  for  such  an  ordinance,  his  as- 
sent is  referable  only  to  the  public  easement, 
and  not  to  his  own  private  rights  of  prop- 
erty in  the  street.  Lamm  v.  Chicago,  St.  P., 
M.  &'  O.  R.  Co.,  a6  Am.  &•  Eng.  R.  Cas.  42, 
4S  Minn,  71,47  N.  W.  Rtp.  455. 

The  owners  of  property  bounded  upon 
streets  in  a  city  have  rights  in  such  streets, 
and  an  interest  in  the  maintenance  of  them 
in  their  integrity ;  but  such  rights  and  inter- 
est consist  merely  in  the  use,  benefit,  and 
enjoyment  of  them  as  public  streets  or  high- 
ways for  the  legitimate  uses  and  purposes  of 
streets.  They  have  no  private  or  exclusive 
right  to,  or  property  in,  the  use  or  enjoy- 
ment of  them.  Drake  v.  Hudson  River  R. 
Co.,  7  Barb.  (N.  V.)  508.  — Quoted  in 
Anderson  v.  Rochester,  L.  &  N.  F.  R.  Co., 
9  How.  Pr.  (N.  Y.)  553 ;  Purdy  v.  Manhattan 
El.  R.  Co.,  36  N.  Y.  S.  R.  43,  13  N.  Y.  Supp. 
295.  Reaffirmed  in  Greene  v.  New  York 
C.  &  H.  R.  R.  Co.,  65  How.  Pr.  154, 12  Abb. 
N.  Cas.  124.  Reviewed  in  Kellinger  v. 
Forty-second  St.  &  G.  S.  F.  R.  Co.,  50  N. 
Y.  206. 

All  other  citizens  have  an  equal  right  with 
such  owners  to  the  use  of  the  public  streets 
as  such.  And  a  railroad  company,  as  part 
of  that  public,  has  the  same  right,  in  com- 
mon with  others,  to  use  the  same,  under  the 
rules  and  regulations  prescribed  by  the 
proper  authority,  for  the  purposes  to  which 
the  lands  forming  the  streets  were  dedicated 
to  the  public,  or  taken  by  the  corporation 
for  public  purposes.  Drake  v.  Hudson  River 
R.  Co.,  7  Barb.  {N.  Y.)  508. 

134.  Easements  of  access,  light, 
and  air."*— The  owner  of  lots  abutting  on 

*  Injury  t  j  abutting  owner's  easement  in  light, 
air,  and  access  to  street,  see  notes,  14  L.  R.  A. 
370  ;  56  Am.  &  Eng.  R.  Cas.  703. 


;5|;    ii 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  135. 


591 


a  public  street  has  such  a  special  interest  in 
the  street,  different  from  that  of  the  general 
public,  as  to  entitle  him  to  maintain  a  pri- 
vate suit  for  damages  against  a  party  who 
wrongfully  obstructs  the  street  in  front  of  or 
near  his  property,  not  upon  his  soil,  yet  so  as 
practically  to  cut  off  all  public  access  to  it. 
Brakken  v.  Minneapolis  &-  SL  L.  R.  Co.,  7 
Am.  &*  Eng.  R.  Cas.  593,  29  Minn,  41,  11 
N.  VV.  Rep.  124.  — Followed  in  Hayes 
V.  Chicago,  St.  P..  M.  &  O.  R.  Co.,  46 
Minn.  349. 

The  owner  of  a  lot  abutting  on  a  public 
street  in  a  city  has,  as  appurtenant  to  the 
lot,  and  independent  of  the  ownership  of 
the  fee  of  the  street,  an  easement  in  the 
street  to  the  full  width  thereof,  in  front  of 
the  lot,  for  admission  of  light  and  air  to  his 
lot ;  which  easement  is  subordinate  only  to 
the  public  right  in  the  street.  (Vanderburgh, 
J.,  dissenting.)  Adams  v.  Chicago,  B.  &*  N. 
R.  Co.,  36  Am.  &•  Eng.  R.  Cas.  7,  39  Minn. 
286,  39  A';  W.  Rep.  629,  I  L.  R.  A.  493,  38 
Alb.  L.  J.  388.— Criticising  Lexington  & 
O.  R.  Co.  V.  Applegate,  8  Dana  (Ky.)  289, 
33  Am.  Dec.  497 ;  Elizabethtown,  L.  &  B.  S. 
R.  Co.  V.  Combs,  10  Bush  (Ky.)  382 ;  Protz- 
mun  V.  Indianapolis  &  C.  R.  Co.,  9  Ind.  467, 
68  Am.  Dec.  650;  Stone  v.  Fairbury.  P.  &  N. 
W.  R.  Co..  68  III.  394 ;  Tate  v.  Ohio  &  M.  R. 
Co.,  7  Ind.  479;  Lackland  v.  North  Mo.  R. 
Co.,  31  Mo.  180;  Cincinnati  &  S.  G.  A.  St. 
R.  Co.  V.  Cumminsvilie,  14  Ohio  St.  523; 
Scioto  Valley  R.  Co.  v.  Lawrence,  38  Ohio 
St.  41.  Quoting  Grand  Rapids  &  I.  R. 
Co.  V.  Heisel,  38  Mich.  62.  Reviewing 
and  approving  Story  v.  New  York  El.  R. 
Co.,  90  N.  Y.  122;  Lahr  v.  Metropolitan  El. 
R.  Co.,  104  N.  Y.  268.  —  Followed  in 
Carroll  v.  Wisconsin  C.  R.  Co.,  36  Am.  & 
Eng.  R.  Cas.  648,  40  Minn.  168,  41  N.  W. 
Rep.  661 ;  Demueles  v.  St.  Paul  &  N.  P.  R. 
Co.,  44  Minn.  436 ;  Lamm  v.  Chicago,  St.  P., 
M.  &  O.  R.  Co.,  4S  Minn.  71.— Zamm  v.  Chi- 
cago, St.  P.,M.&'  O.  R.  Co.,  46  Am,  &*  Eng. 
R.  Cas.  42,  45  Minn.  71,47  JV.  W.  Rep.  455. 
—Approving  Story  v.  New  York  El.  R.  Co., 
90  N.  Y.  122;  Lahr  v.  Metropolitan  El.  R. 
Co.,  104  N.  Y.  268;  Fobes  v.  Rome,  W.  & 
O.  R.  Co.,  121  N.  Y.  505.  Following 
Adams  v.  Chicago,  B.  &  N.  R.  Co..  39  Minn. 
286. 

The  fact  that  a  company  has  erected  an 
embankment  in  a  street  200  to  300  feet  from 
plaintifl's  property  does  not  give  him  a 
right  of  action,  unless  his  right  of  access  to 
his  property  has  been  cut  ofl  thereby.  Rum- 


mtl  V.  New  York,  L.  &*  W.  R.  Co.,  30  A'^,  K- 
.S".  R.  235.— Quoting  Hier  v.  New  York,  W. 
S.  &  B.  R.  Co.,  40  Hun  310. 

135.  Right  to  unobstructed  in- 
gress aud  egress.*  —  An  owner  of  real 
property  has  a  right  to  the  use  of  the  public 
road  or  street  upon  which  it  abuts,  for  the 
purposes  of  ingress  and  egress  to  and  from 
the  same.  McQuaid  v.  Portland  &*  V.  R. 
Co.,  40  Am.  6-  Eng.  R.  Cas.  308,  18  Or^. 
237,  22  Pac.  Rep.  899.  Ford  v.  San/i  Crua 
R.  Co.,  59  Cal.  290.  Jackson  v,  Kiel,  40  Am. 
&*  Eng.  R.  Cas.  297, 13  Colo.  378, 22  Pac.  Rep. 
504.— Reviewed  in  Gilbert  v.  Greeley,  S.  L. 
&  P.  R.  Co.,  40  Am.  &  Eng.  R.  Cas.  300,  13 
Colo.  sot.  —  Selden  s.  Jacksonville,  28  Fla. 
558, 10  So.  Rep.  457.  Decker  v.  Evansville  S. 
&*  N.  R.  Co.,  133  Ind.  493,  33  N.  E.  Rep.  349. 

This  right  is  appurtenant  to  his  prem- 
ises, and  constitutes  such  a  property  inter- 
est that  it  cannot  be  taken  away  or  seri- 
ously impaired,  against  his  will,  for  uny 
purpose,  without  payment  of  just  compen- 
sation therefor.  McQuaid  v.  Portland  &* 
V.  R.  Co.,  40  Am.  6-  Eng.  R.  Cas.  308,  18 
Oreg,  237,  22  Pac.  Rep.  899. 

Adjoining  property  owners  are  compelled 
to  submit  to  the  ordinary  inconveniences 
and  annoyances  which  the  operation  of  a 
railway  located  upon  a  public  road  occa- 
sions ;  but  they  cannot  be  deprived  of  the 
rights  of  ingress  and  egress  to  and  from 
their  premises,  without  their  consent. 
McQuaid  v.  Portland  &*  V.  R.  Co.,  40  Am. 
&*  Eng.  R.  Cas.  308,  18  Oreg.  237,  22  Pac. 
Rep.  899. 

Where  a  corporation  locates  its  road,  un- 
der the  provisions  of  such  a  statute,  in  such 
close  proximity  to  the  premises  of  an  ad- 
joining lot  owner  that  its  use  obstructs  his 
communication  with  the  street,  and  inter- 
feres with  its  enjoyment  by  those  who  oc- 
cupy the  premises,  to  such  an  extent  as 
materially  to  depreciate  the  value  thereof, 
the  lot  owner  is  entitled  to  recover  the 
amount  of  such  depreciation.  McQuaid  v. 
Portland  &•  V.  R.  Co.,  40  Am.  &>  Eng.  R. 
Cas.  308,  18  Or^.  237,  22  Pac.  Rep.  899. 

In  an  action  against  a  corporation  to  re- 
cover damages  in  consequence  of  its  locat- 
ing and  constructing  its  road  upon  certain 
streets  in  a  certain  city,  it  was  alleged  that 
plaintif!  was  the  owner  of  premises  at  the 


*  Damages  for  obstruction  of  access  to  prem- 
ises, see  notes,  a  Am.  ft  Eno.  R.  Cas.  464 ;  14  Id, 
146 ;  30  Id.  35 


boa 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  136. 


corner  of  two  of  the  streets :  that  defendant 
had  located  its  road  above  the  grade  thereof, 
and  made  a  large  curve  in  its  road  ;  had 
built  it  so  near  plaintiff's  premises  that  a 
wagon  could  not  pass  between  the  curb  and 
its  road;  that  it  had  so  taken  and  appro- 
priated such  part  of  the  streets  at  the  cor- 
ners of  plaintiff's  premises  as  to  interrupt 
and  greatly  obstruct  access  thereto.  Evi- 
dence was  introduced  upon  the  part  of 
plaintiff  tending  to  prove  the  truth  of  said 
allegations.  Held,  that  it  was  the  duty  of 
the  trial  court  to  have  submitted  to  the 
jury  the  question  as  to  whether  the  location 
and  operation  of  defendant's  road  inter- 
fered with  plaintiff's  ingress  and  egress  to 
and  from  his  premises,  so  as  to  depreciate 
the  value  thereof.  McQuaid  v.  Portland  &* 
V.  R.  Co.,  40  Am.  &*  Eng.  li.  Cas.  308,  18 
Oreg.  237,  22  Pac.  Rep.  899. 

In  such  case  plaintiff  was  entitled  to  re- 
cover damages  for  the  amount  of  any  depre- 
ciation in  the  value  of  his  premises  caused 
by  defendant  in  locating,  conducting,  and 
operating  its  railroad  so  near  them  as  to 
prevent  or  materially  affect  access  thereto 
by  plaintiff,  or  those  occupying  said  prem- 
ises, if  found  that  they  had  suffered  depre- 
ciation from  such  cause.  McQuaid  v. 
Portland  &*  V.  R.  Co.,  40  Am.  &*  Eng.  R. 
Cas.  308,  18  Oreg.  237,  22  Pac.  Rep.  899. 

Where  a  railroad  is  built  in  a  street  so  as 
to  cut  off  the  access  to  and  from  abutting 
property,  a  right  of  action  therefor  accrues 
to  the  owner  which  extends  to  another 
company  subsequently  purchasing  the  road 
and  franchises.  Ft.  Scott.  IV.  -V*  W.  R.  Co. 
V.  Fox,  40  Am.  &•  Eng.  R.  Cas.  331, 42  Kan. 
490,  22  Pac.  Rep.  583.  —  Distinguishing 
Central  Branch  U.  P.  R.  Co.  v.  Twine,  23 
Kan.  585. 

And  in  such  case  the  owner  is  not  de- 
prived of  damages  by  the  fact  that  he  has 
access  to  and  from  his  property  by  another 
street,  situated  on  the  other  side  of  the 
property.  Ft.  Scott,  W.  &-  W.  R.  Co.  v. 
Fox,  40  Am.  6-  Eng.  R.  Cas.  331,  42  Kan. 
490,  22  Pac.  Rep.  583. 

The  mere  failure  of  a  company  properly 
to  ballast  its  roadbed,  where  sufficient 
space  is  left  in  the  street  for  ordinary  vehi- 
cles and  teams  to  pass  in  front  of  abutting 
property,  will  not  authorize  a  recovery  for 
damages  alleged  to  have  been  sustained  fur 
the  destruction  of  one's  right  of  ingress  and 
egress,  where  there  is  no  evidence  to  show 
the  terms  and  conditions  upon  which  the 


privilege  to  build  such  railroad  was  con- 
ferred by  the  city  authorizing  the  same. 
Wichita  6-  C.  R.  Co.  v.  Smith,  46  Am.  &* 
Eng.  R.  Cas.  S3>  45  Kan.  264,  25  Pac. 
Rep.  623. 

To  entitle  a  person  owning  lots  abutting 
on  a  street  to  recover  damages,  there  must 
be  such  a  practical  obstruction  of  the  street 
in  front  of  the  lots  that  he  is  denied  ingress 
to  and  egress  from  them.  Kansas,  N.  &* 
D.  R.  Co.  V.  Cuykendall,  42  Kan.  234,  21 
Pac.  Rep.  1051.— Followed  in  Kansas,  N. 
&  D.  R.  Co.  V.  Mahler,  45  Kan.  565. 

136.  Bight  to  have  street  open  for 
public  use.  —  A  person  who  owns  lots 
fronting  on  a  street  dedicated  by  himself  to 
the  public  use  is  entitled  to  damages  if  a 
company  lays  its  track  along  the  street  and 
by  that  means  obstructs  it  for  the  use  of 
teams  and  vehicles,  if  the  value  of  his  lots 
is  diminished  thereby.  Southern  Pac.  R. 
Co.  V.  Reed,  41  Cal.  256,  3  Am.  Ry.  Rep.  46. 

A  city  or  village  may  authorize  the  laying 
of  railroad  tracks  in  streets,  and  such  a  use 
is  not  inconsistent  with  the  trust  for  which 
they  are  held,  but  in  doing  so  the  city  has 
no  right  so  to  obstruct  the  streets  as  to 
deprive  the  public  and  adjacent  property 
holders  of  their  use  as  highways.  Their 
primary  purpose  is  for  ordinary  passage  and 
travel,  and  the  public  or  individuals  cannot 
rightfully  be  deprived  of  such  use.  Stack 
V.  East  St.  Louis,  85  ///.  377.— Following 
Pekin  v.  Brereton,  67  III.  477.— Distin- 
guished IN  Denver  v,  Bayer,  7  Colo.  113. 
Quoted  in  Ligare  v.  Chicago,  139  III.  46; 
St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Belleville, 
20  III.  App.  580.  Reviewed  in  Torpey  v. 
Independence,  24  Mo.  App.  288.  Reviewed 
AND  distinguished  IN  Olney  V.  Wharf, 
US  III.  519.— 7<i/*  V.  Ohio  a-  M.  R.  Co.,  7 
Ind.  479. 

Although  an  obstruction  may  not  wholly 
prevent  access  to  the  property,  if  it  is  such 
as  practically  to  preclude  the  ordinary  and 
reasonable  use  of  the  alley  as  a  means  of 
entering  and  leaving  the  rear  of  the  lot,  the 
company  is  liable  for  the  injury  suffered. 
Leavenworth,  N,  &*  S.  R.  Co,  v.  Curtan,  56 
Am.  &»  Eng.  R.  Cas.  636,  51  Kan.  432,  33 
Pac.  Rep.  297. 

When  land  is  laid  off  into  lots,  streets, 
and  alleys,  and  lots  are  sold,  each  lot  owner 
has  the  right  not  only  to  use  the  streets  as 
ways  of  ingress  and  egress,  but  also  to  have 
them  thrown  open  for  use  by  the  public  in 
any  manner  consistent  with  the  uses  for 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  137. 


593 


which  they  are  established.  Eltzabtt/itown 
6-  P.  R.  Co.  V  Thompson,  14  Am.&'Eng, 
R.  Cas.  Ill,  79  A>.  52. 

A  mining  company  owned  certain  land 
near  a  city,  which  it  platted,  reserving  "  the 
exclusive  right  to  lay  a  plank  or  railroad 
track  through  and  across  any  of  the  streets 
reserved  on  the  map."  The  street  down 
which  it  had  been  intended  to  run  the  road 
was  laid  out  much  wider  than  the  rest, 
and  was  partially  occupied  for  such  pur- 
poses. Subsequently  the  mining  company 
assigned  all  its  rights  to  a  railroad  company 
which  proceeded  to  build  four  tracks  down 
this  street,  after  having  gained  the  city's 
permission  to  do  so.  A  property  owner  on 
this  street  obtained  an  injunction.  Held, 
that  the  company  had  no  right  to  blockade 
the  street  without  compensating  property 
owners,  and  that  the  foregoing  reservation 
in  the  plat  did  not  give  to  it  the  privilege  of 
destroying  the  usefulness  of  private  prop- 
erty. Riedinger  v.  Marquette  &*  W.  R,  Co., 
29  Am.  &*  Eng.  R.  Cas.  61 1,  62  Mich.  29,  28 
N.  W.  Rep.  775.— Followed  in  Ward  v. 
Detroit,  M.  &  M.  R.  Co.,  62  Mich.  46; 
Com'rs  of  Parks,  etc.,  v.  Chicago,  D.  &  C. 
G.  T.  J.  R.  Co.,  91  Mich.  291. 

Adjoining  proprietors  by  agreement  closed 
a  dedicated  highway,  and  in  place  of  it 
opened  a  road  upon  another  site.  Held, 
that  whether  the  road  so  opened  was  a  pub- 
lic highway  or  a  private  right  of  way,  they 
and  those  claiming  under  them  had  such  an 
interest  in  it  as  entitled  them  to  recover 
damages  from  a  railroad  company  crossing 
it  in  such  a  manner  as  to  obstruct  its  free 
use.  Kansas  City,  St.  L.  &*  C,  R.  Co.  v. 
Farrell,  76  Mo.  183. 

Abutting  owners  have  an  easement  in  the 
street  in  common  with  the  whole  public  to 
pass  and  repass,  and  also  to  have  free  access 
to  and  from  their  premises.  Clark  v.  Roch- 
ester City  <^  B.  R.  Co.,  18  N.  Y.  S.  R.  903, 
50  Hun  600,  2  N.  V.  Supp.  563. 

137.  Bight  to  insist  on  proper  use 
of  street. — The  right  to  the  use  of  a  street 
is  an  incorporeal  hereditament  legally  at- 
tached to  the  ground  contiguous  thereto, 
and  incident  to  the  title  assured  by  law — a 
right  of  which  the  owners  of  such  contigu- 
ous property  cannot  be  deprived  without 
compensation.  Cosdy  v.  Owensboro  &»  R.  R. 
Co.,  loBush  (Ky.)  288. — Following  Louis- 
ville &  F.  R.  Co.  7>.  Brown,  17  B.  Mon.  763. 

The  construction  of  a  railroad  along  a 
street  is  not  per  se  an  encroachment  upon 
7  D.  R.  D.-38 


the  individual  right  of  the  abutting  lot 
owner,  and  whether  he  can  complain  de- 
pends not  upon  the  fact  of  the  existence  of 
the  railroad,  but  upon  the  manner  of  its  con- 
struction and  operation.  If  he  is  thereby 
deprived  of  the  reasonable  use  of  the  street 
he  may  appeal  to  the  courts  for  relief,  but 
if  he  is  merely  inconvenienced  thereby,  and 
suffers  some  remote  consequential  injury, 
he  is  without  relief.  Fulton  v.  Short  R. 
R.  Transfer  Co.,  32  Am.  6>»  Eng.  R.  Cas. 
256,  85  Ay.  640,  7  Am.  St.  Rep.  619,  4  S.  W. 
Rep.  332.— Distinguishing  Louisville  &  F. 
R.  Co.  V.  Brown,  17  B.  Mon.  772 ;  Newport 
&  C.  Bridge  Co.  v.  Foote,  9  Bush  264 ;  Cosby 
V.  Owensboro  &  R.  R.  Co.,  10  Bush  288. 
Following  Lexington  &  O.  R.  Co.  v.  Ap- 
plegate,  8  Dana  289 ;  Wolfe  v.  Coving- 
ton &  L.  R.  Co.,  15  B.  Mon.  409 ;  Louisville  & 
F.  R.  Co.  V.  Brown,  17  B.  Mon.  772 ;  New- 
port &  C.  Bridge  Co.  v.  Foote,  9  Bush  264 ; 
JefTersonville,  M.  &  1.  R.  Co.  v.  Esterle,  13 
Bush  675.— Reviewed  in  Gargan  v.  Louis- 
ville, N.  A.  &  C.  R.  Co.,  89  Ky.  212. 

A  railroad  company  may  be  compelled  to 
use  the  streets  in  such  a  manner  as  to  in- 
flict the  least  possible  injury  upon  private 
individuals  compatible  with  the  reasonable 
convenience  of  the  public  who  make  use  of 
its  road.  Laviosa  v.  Chicago,  St.  L.  &*  N. 
O.  R.  Co.,  4  Am.  6-  Eng.  R.  Cas.  128,  Mc- 
Gloin  (La.)  299. 

The  courts  will  aflord  a  remedy  against 
the  use  of  streets,  by  railroads,  in  a  manner 
that  is  needlessly  and  unreasonably  injuri- 
ous to  private  persons,  even  though  such 
particular  mode  of  use  is  expressly  author- 
ized by  municipal  legislation.  Laviosa  v. 
Chicago,  St.  L.  <S-  A':  O.  R.  Co.,  4  Am.  &' 
Eng.  R.  Cas.  1 28,  McGloin  (La. )  299. 

The  owner  of  the  soil  over  which  a  street 
is  laid  has  the  right  to  insist  that  a  street 
shall  be  used  for  the  legitimate  purposes  of 
its  creation  and  existence,  and  in  a  manner 
proper  to  effect  the  same.  Newell  v.  Minne- 
apolis, L.  &*  M.  R.  Co.,  24  Am.  <S-  Eng.  R. 
Cas.  298,  35  Minn.  112,  27  A'.  IV.  Rep.  839. 

When  a  street  is  being  used  for  the  pur- 
pose (legitimate  in  its  general  nature)  of  the 
passage  of  persons  and  property,  but  ob- 
jection is  made  to  the  mode  of  use,  the 
question  of  rightfulness  depends  upon 
whether  the  use  objected  to  is  consistent 
or  inconsistent  with  the  common  public 
use  in  which  every  person  is  entitled  to 
share.  This  question  of  consistency  or  in- 
consistency is  a  question  of  law.     That  is 


504 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  138. 


:ir  !  il 


!  I 


to  say,  the  facts  of  a  given  case  being  as- 
certained, it  is  for  the  court  to  pronounce 
upon  their  eRect,  and  to  determine  whether 
a  manner  of  using  a  street  complained  of 
is  or  is  not,  all  things  considered,  a  sub- 
stantial infringement  upon  the  common 
public  right.  Newell  v.  Alinntapolis,  L.  &* 
M.  K.  Co..  24  Am,  &*  Eng.  A'.  Cat,  298,  3$ 
Minn.  112,  27  A'.  W.  Kep.  839. 

138.  "What  1b  a  proper  use  of 
street.  —  Owners  of  lots  bordering  on 
streets  hold  them  subject  to  the  right  of 
the  appropriation  of  the  street  to  such 
public  uses,  promotive  of  commerce  and 
business,  as  the  general  good  of  the  city  or 
town  may  require,  provided  such  appropria- 
tion is  not  incompatible  with  the  ends  for 
which  the  street  was  established— as  a  public 
way  for  foot  passengers,  horsemen,  and  the 
vehicles  in  ordinary  use.  Cosby  v.  Oviens- 
boro  &•  R.  R.  Co.,  10  Bush  (Ky.)  288.— Dis- 
tinguished IN  Fulton  V.  Short  R.  R. 
Transfer  Co.,  85  Ky.  640,  7  Am.  St.  Rep. 
619,  4  S.  W.  Rep.  332.  Reviewed  in  Eliza- 
bethtown,  L.  &  B.  S.  R.  Co.  v.  Combs,  10 
Bush  (Ky.)  382. 

A  company  has  no  right  to  use  a  high- 
way as  a  part  of  its  freight  yard  ;  but  it  has 
a  right  to  pass  and  repass  over  a  highway 
in  making  up  its  trains  and  shifting  its  cars, 
provided  this  is  done  only  to  a  reasonable 
extent  and  in  a  reasonable  manner,  without 
encroaching  upon  the  rights  of  others  who 
have  an  equal  right  to  use  it.  Gahagan  v. 
Boston  &•  L.  R.  Co.,  1  Allen  (Mass.)  1 87. 

The  streets  of  a  city  may  be  used  for  any 
purpose  which  is  a  necessary  public  one, 
and  the  abutting  owner  will  not  be  entitled 
to  a  new  compensation,  in  the  absence  of 
a  statute  giving  it.  Detroit  City  K.  Co.  v. 
Mills,  \6  Am.  &>  Eng.  R.  Cas.  608,85  Mich. 
634,  48  N.  W.  Rep.  1007. 

Any  use  of  a  street  which  is  limited  to 
an  exercise  of  the  right  of  passage,  and 
which  is  confined  to  a  mere  use  of  the 
public  easement,  whether  it  be  by  old  meth- 
ods or  new,  and  which  does  not,  in  any 
substantial  degree,  destroy  the  street  as  a 
means  of  free  passage,  common  to  all  the 
people,  is  a  legitimate  use  and  within  the 
purposes  for  which  the  public  acquired  the 
land.  Halsey  v.  Rapid  Transit  St.  R.  Co., 
46  Am.  &*  Eng.  R.  Cas.  76,  47  N./.  Eg.  380. 
20  Atl.  Rep.  859. 

Land  taken  for  a  street  is  taken  for  all 
time,  and  compensation  is  made  once  for 
all,  and  by  the  taking  the  public  acquire 


the  right  to  use  it  for  travel,  not  only  by 
such  means  as  were  i  use  when  the  land 
was  acquired,  but  by  such  other  means  ai 
new  wants  and  the  improvements  oi  the 
age  may  rL-ndcr  necessary.  Halsey  v.  Rapid 
Transit  St.  R.  Co.,  46  Am.  &*  Eng.  R.  Cas. 
76.  47  A',  y.  Eg.  380,  20  /;//.  Rep.  859.— 
Follow Ki)  in  Koch  v.  North  Ave.  R.  Co., 
75  Md.  222. 

To  allow  a  street  in  a  city  to  be  used  for 
a  railroad  track,  either  upon  its  natural  sur- 
face or  by  tunneling,  is  not  a  misapplica- 
tion of  it,  provided  such  use  does  not 
interfere  with  the  free  and  unobstructed  use 
of  it  by  the  public  as  a  highway  for  pas« 
sage  and  repassage.  Pltint  v.  Long  Island 
R.  Co.,  10  Barli.  (N.  Y.)  26.— Following 
Drake  v.  Hudson  River  R.  Co,,  7  Barb.  508. 

The  temporary  inconvenience  to  which 
the  adjoining  proprietors  arc  subjected 
while  the  work  of  excavation  and  tunnel- 
ing is  going  on  is  daninutn  absque  injuria, 
and  will  not  entitle  an  individual  to  dam- 
ages. Plant  v.  Long  Island  R.  Co.,  10  Barb. 
{N.  Y.)  26.— Distinguishing  Fletcher  v. 
Auburn  &  S.  R.  Co.,  25  Wend.  (N.  Y.)  462  ; 
Waterloo  Presbyterian  Soc.  i/.  Auburn  &  R. 
R.  Co., 3  Hill  (N.  Y.)  567.— Distinguished 
IN  Williams  v.  New  York  C.  R.  Co.,  16 
N.  Y.  97. 

Where  the  land  of  an  individual  is  taken 
for  a  street,  and  compensation  is  made  for 
it,  the  city  has  the  right  to  appropriate  the 
land  so  taken  to  all  such  legitimate  uses  and 
servitudes  as  custom  and  the  public  good 
require  in  respect  to  a  street.  Plant  v.  Long 
Island  R.  Co.,  10  Barb.  (N.  Y.)  26. 

The  use  to  which  a  street  in  a  city  or  vil- 
lage is  devoted  is  far  more  extensive  than 
the  mere  right  of  the  public  to  pass  over  it. 
It  may  be  used  in  any  way  which  shall  best 
promote  the  interests  and  business  of  the 
city  or  village  where  it  is  located.  What 
will  so  promote  those  interests  and  that 
business  is  to  be  determined  by  the  munici- 
pal authority  to  whom  the  control  of  the 
streets  is  committed.  Those  who  purchase 
lands  adjacent  to  such  streets  must  be 
deemed  to  take  their  title  subject  to  the  ap- 
propriation of  the  streets  to  such  purposes 
and  objects  as  the  public  interests  shall 
require.  The  only  restriction  upon  this 
appropriation  is  that  the  use  to  be  made  of 
the  streets  must  not  be  incompatible  with 
the  ends  for  which  they  were  established. 
Chapman  v.  Albany  &*  S.  R.  Co.,  10  Bard. 
[N,  Y.)  360.— Distinguished  in  Williams 


STREETS  AND   HIGHWAYS    (RAILWAYS   IN),  130,  140. 


fi95 


V.  New  York  C.  R.  Co.,  i6  N.  Y.  97. 
Quoted  and  approved  in  Louisville  & 
F.  R.  Co.  V.  Brown.  17  B.  Mon.  (Ky.)  763. 

It  seems  that  streets  in  a  city,  laid  out  and 
opened  under  charter  provisions,  may,  under 
legislative  and  municipal  authority,  be  used 
for  any  public  use  consistent  with  their 
{ircservation  as  public  streets,  although  the 
use  may  be  new,  may  impose  an  additional 
burden,  and  may  subject  lot  owners  to  injury, 
and  the  mere  disturbance  of  rights  of  light, 
air,  and  access  occasioned  thereby  is  t/am- 
Hum  absqut  injuria.  Kane  v.  New  York  El. 
H.  Co.,  46  Am.  &•  Eng.  R.  Cas.  137, 125  A';  V. 
164,  26  A^.  E.  Rep.  rjl,  34  A^.  Y.  S.  R.  876. 

It  seems,  also,  that  the  use  of  a  city  street 
for  an  ordinary  horse  or  steam  railway,  unless 
it  practically  closes  the  street,  is  lawful,  and 
abutting  owners  whose  lots  are  bounded  by 
the  side  of  the  street  have  no  legal  redress, 
in  the  absence  of  negligence  in  the  con- 
struction or  operation  of  the  railroad, 
although  it  may  seriously  interfere  with  the 
value  of  their  property.  Kane  v.  New  York 
El.R.  Co.,\6Am.6fEnff.  R.  Cas.  137, 125  A': 
Y.  164. 26  A^.  E.  Rep.  278,  34  N.  Y.  S.  R.  876. 

The  use  of  a  street  for  an  ordinary  steam 
railroad  is  not  a  legitimate  use  of  the  street 
for  public  purposes,  and  neither  the  legisla- 
ture nor  city  can  authorize  such  a  railroad 
to  be  constructed  and  operated  thereon 
against  the  abutting  proprietor's  will  with- 
out compensation.  White  v.  Northwestern 
N.  C.  R.  Co.,  56  Am.  &*  Eng.  R.  Cas.  706, 
1 13  TV.  Car.  610,  18  S.  E.  Rep.  330. 

Necessity  may  justify  the  use  of  a  street 
for  the  purpose  of  transporting  things  in  an 
unusual  manner,  or  for  the  purpose  of  trans- 
porting such  things  as  necessarily  obstruct 
the  street  for  a  time,  but  such  uses  are  not 
necessarily  illegal,  for  streets  as  passways 
must  frequently  be  subjected  to  uses  not 
strictly  in  the  line  of  the  purpose  for  which 
they  exist,  but  unusual  because  of  the 
nature  of  the  things  to  be  transported  or  of 
the  vehicles  necessary  to  their  transporta- 
tion. Taylor  v.  Dunn,  80  Tex.  652,  16  S- 
W.  Rep.  732. 


2.  Ownership  of  Fee  in  Street. 
Servitude. 


New 


130.  Building  8team  road  a  new 
servitude  entitling  owner  of  the  fee 
to  damages.'*'  —  The  construction  of  a 

*When  appropriation  of  a  highway  for  rail- 
way purposes  is  new  servitude  thereon,  see  notes, 


railroad  on  land  dedicated  as  a  country 
road,  beirg  a  use  of  the  land  foreign  to  the 
purpose  for  which  it  was  dedicated,  consti- 
tutes an  additional  burden  or  easement,  for 
which  the  owner  of  the  fee  is  entitled  to 
compensation  ;  and  the  state  cannot  de- 
prive the  owner  of  his  right  to  compensa- 
tion for  such  additional  burden  or  ease- 
ment. Western  R.  Co.  v.  Alabama  G.  T.  R. 
CV.,96  Ala.  272,  II  So.  Rep.  483.— Follow- 
ing Columbus  &  W.  R.  Co.  v.  Witherow, 
82  Ala.  i^.— Hastings  6-  G.  I.  R.  Co.  v. 
Ingalls,  20  Am.  &*  Eng.  R.  Cas.  60,  1 5  Neb. 
123,  16  N.  W.  Rep.  762.— Following  Wil- 
liams V.  New  York  C.  R.  Co..  16  N.  Y.  97 : 
Waterloo  Presbyterian  Soc.  v.  Auburn  &  R. 
R.  Co.,  3  Hill  567.  Reviewing  Williams 
V.  New  York  C.  R.  Co.,  18  Barb.  222 ;  Story 
V.  New  York  El.  R.  Co.,  90  N.  Y.  122. 

And  the  same  rule  applies  to  land  used 
for  an  ordinary  street  or  highway.  Indian- 
apolis,  B.  <J*  W.  R.  Co.  v.  Hartley,  67  ///.  439, 
2  Am.  Ry.  Rep.  59.  Chicago  &*  N.  W.  R.  Co. 
V.  Jefferson,  14  ///.  App.  61 5.  Cox  v.  Louis- 
ville,  N.  A.  6-  C.  R.  Co.,  48  Jnd.  178,  8  Am. 
Ry.  Rep.  296.— Quoting  Indianapolis,  B. 
&  W.  R.  Co.  V.  Hartley,  67  III.  439,  2  Am. 
Ry.  Rep.  59.  Reviewing  Williams  v.  New 
York  C.  R.Co.,  16  N.  Y.  97.— Reviewed  in 
Terre  Haute  &  I.  R.  Co.  v.  Scott,  3  Am.  & 
Eng.  R.  Cas.  208,  74  Ind.  zg.—  Van  Bokelen 
V.  Brooklyn  City  R.  5  Blatchf.  {U.  S.) 

379.  Carli  V.  Stillv  St.  R.  &*  T.  Co.,  3 
Am.  &>  Eng.  R.  Cas.  226,  28  Minn.  373,  41 
Am.  Rep.  290,  to  A'^.  W.  Rep.  205.  /ones  v. 
Erie  &*  W.  V.  R.  Co.,  151  Pa.  St.  30,  25 
All.  Rep.  134.— Quoted  in  Stroudsburg  r. 
Wilkes- Bai re  &  E.  R.  Co.,  2  Pa.  Dist.  507. 

A  railroad  bridge  constructed  over  a 
street,  under  authority  of  the  city,  at  a 
height  of  twenty-three  feet,  imposes  a  new 
servitude  upon  abutting  property  for  which 
the  owner  in  fee  may  recover  damages  ;  but 
consequential  damages  cannot  be  recovered 
on  account  of  abutments  built  upon  the  de- 
fendant's land  to  support  the  bridge.  Jones 
V.  Erie  6-  W.  V.  R.  Co.,  56  Am.  ^  Eng.  R. 
Cas.  664,  III  Pa.  St.  30,  25  At  I.  Rep.  134. 

140.  Iiimitatlons  of  above  rule. — 
It  is  within  the  discretion  of  municipal 
authorities  to  permit  steam-railroad  tracks 
to  be  laid  and  trains  operated  in  public 
streets,  and  such  appropriation  is  not  a  new 
use  thereof,  or  an  additional  burden  thereon, 


28  Am.  Rep.  267 ;  9  Am.  St.  Rep.  546  ;  17  L.  R. 
A.  474. 


! 


I 


i   i 


698 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  141. 


in  tuch  seme  ai  will  entitle  an  abutting 
property  owner  to  enjoin  such  use  of  the 
•treet  on  which  his  property  (ronts.  The 
remedy  in  such  case  is  at  law.  Corcoran  v. 
Chicago.  M.  &»  N.  R.  Co.,  yj  III.  App,  417; 
affirmidin  149  ///.  291,  37  A'.  E.  Rtp.  68. 

The  owner  of  tiie  fee  in  a  city  street  cannot 
object  to  the  use  of  the  street  by  a  passen- 
ger street  railway,  cither  on  the  ground  that 
such  use  imposes  an  additionul  servitude 
on  him,  or  on  the  ground  that  the  corpora- 
tion operating  the  railway  is  acting  beyond 
the  powers  conferred  by  its  charter.  Nor 
does  it  matter  that  steam  is  used,  and  that 
the  business  done  is  largely  in  transport- 
ing persons  to  a  point  eighteen  miles 
beyond  the  city  limits,  as  well  as  from  point 
to  point  within  the  city.  Newell  Minnt- 
apolis,  L.  &*  M.  K.  Co.,  34  Am.  &*  Eng.  R. 
Cas.  298,  35  Minn.  112,  27  N.  IV.  Rep.  839.— 
Distinguishing  Carii  v.  Stillwater  St.  R. 
&  T.  Co.,  28  Minn.  373,  10  N.  W.  Rep.  205. 
—Disapproved  in  East  End  St.  R.  Co.  v. 
Doyle.  88  Tenn.  747,  9  L.  R.  A.  too,  13  S. 
W.  Rep.  936.  Followed  in  Williams  v. 
City  El.  St.  R.  Co.,  43  Am.  &  Eng.  R.  Cas. 
215,  41  Fed.  Rep.  556. 

141.  Rule  where  ownerahlp  of 
the  fee  is  in  state  or  city.— (1)  Right 
to  comptMsatioH  denied. — A  person  who  has 
no  title  to  the  soil  of  the  street  adjoining 
his  lot  is  not  entitled  to  compensation  for 
the  appropriation  of  it  for  the  purpose)  of  a 
railroad.  Carson  v.  Central  R.  Co.,  35  Cat. 
325.  Simplot  V.  Chicago,  M.  <S-  St.  P.  R, 
Co..  16  Fed.  Rep.  350,  5  McCrary  ( U.  S.)  1 58. 
Lorie  v.  North  Chicago  City  R.  Co.,  32  Fed. 
Rep.  270.  Stetson  v.  Chicago  (S-  E.  R.  Co., 
75  ///.  74.  Clinton  v.  Cedar  Rapids  &>  M. 
R.  R.  Co.,  24  Iowa  455.— Approving  Spring- 
field V.  Connecticut  River  R.  Co.,  4  Cush. 
(Mass.)  63.— Followed  in  Hine  v.  Keokuk 
&  D.  M.  R.  Co.,  42  Iowa  6^6.— Davenport  v. 
Stevenson,  34  Iowa  225,  5  Am.  Ry.  Rep.  107. 
— Following  Slatten  v.  Des  Moines  Valley 
R.  Co.,  29  Iowa  148. — Franz  v.  Sioux  City 
&*  P.  R.  Co.,  55  /owa  107,  7  N.  W.  Rep. 
472.  Cosby  v.  Owensboro  &*  R.  R.  Co.,  10 
Bush  (A>.)  288.  Rummelv.  New  York,  L. 
&*  W.  R.  Co..  9  N.  V.  Supp.  404,  30  N.  Y. 
S.  R.  235.— Quoting  Hier  v.  New  York, 
W.  S.  &  B.  R.  Co.,  40  Hun  310.— Dilley  v. 
IVilkes-Barre  &*  K.  Pass.  R,  Co.,  2  Pa. 
Dist.  91. 

(2)  Illustrations.  —  The  legislature  can 
grant  the  right  to  construct  a  railroad  upon 
public  streets  without  providing  for  compen- 


sation to  the  owners  of  property  along  such 
streets,  provided  such  owners  are  not  the 
owners  of  the  contiguous  land  adfilum  via. 
Carson  v.  Central  R.  Co.,  35  Cal.  325. 

The  owner  of  property  abutting  on  a 
street  in  an  addition  to  the  city  of  Denver, 
in  which  the  city  had  only  a  qualified  fee, 
sued  to  n  over  damages  incurred  by  the  con- 
struction of  a  railroad  in  the  street.  Held, 
that  since  the  injuries  to  the  property  were 
done  after  the  present  state  Constitution, 
providing  that  private  property  shall  not  be 
taken  or  damaged  for  public  or  private  use 
without  just  compensation,  went  into  effect, 
it  applied,  and  the  owner  was  entitled  to 
recover.  Denver  Circle  R.  Co.  v.  Nestor,  10 
Colo.  403,  15  Pac,  Rep.  714.  See  also  Den- 
ver Circle  R.  Co,  v.  Wiggins,  10  Colo.  426, 
15  Pac.  Rep.  726.  Denver  Circle  R.  Co.  v. 
Clark,  10  Colo,  427,  15  Pac.  Rep.  726.  Den- 
ver Circle  R.  Co.  v.  Bigler,  10  Colo.  428,  15 
Pac.  Rep,  726.  Denver  Circle  R.  Co.  v. 
Martin,  10  Colo.  428,  1 5  Pac.  Rep.  726. 

It  seems  that,  for  the  purpose  of  manag- 
ing and  regulating  the  public  streets  in  the 
city  of  New  York,  and  the  use  of  them  for 
the  trusts  and  purposes  of  their  dedication 
or  establishment ;  prescribing  the  widtli  of 
the  sidewalks  and  of  the  carriage-way;  licens« 
ingthe  partial  and  temporary  use  of  parts  of 
them  for  necessary  private  purposes;  and 
permitting  or  prohibiting  special  uses  for 
particular  objects,  the  legal  title  to  the  land 
or  soil  of  the  streets  is  vested  in  the  city 
corporation,  subject  to  the  public  use  of 
them  as  public  streets  of  the  city.  Drake 
V.  Hudson  River  R.  Co.,  7  Barb.  (N.  Y.)  508. 

Where  the  right  of  way  over  a  common  is 
granted  to  a  railroad  company  by  the  au« 
thorities  of  a  city,  in  whom  the  title  vests, . 
the  city  alone  has  the  right  to  complain  if 
the  company  has  exceeded  or  is  about  to 
exceed  the  powers  conferred  by  the  grant. 
Bellv.  Ohio  &*  P.  R.  Co.,  2$  Pa.  St.  161. 

(3)  Limits  and  exceptions  to  above  rule. — 
An  abutting  lot  owner  who  does  not  own 
the  fee  to  the  street  cannot  .support  an  ac- 
tion against  a  horse-railroad  company  for 
constructing  its  road  in  the  street,  without 
showing  some  special  injury  to  himself  dif- 
ferent from  that  suffered  by  lot  owners  gen- 
erally. Osborne  V.  Brooklyn  City  R.  Co.,  5 
Blatchf.iU.  S.)  366.— Approved  in  McCall 
v.  Hancock,  20  Blatchf.  344. 

For  injury  and  annoyance  occasioned  by 
an  ordinary  railroad  which  are  peculiar  to 
an  abutting  owner,  and  not  shared  by  the 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  141. 


M7 


general  public— which  affect  his  property 
and  impair  its  value  without  injuring  that 
of  his  neighbor— he  ouglit  to  receive  com- 
pensation,  though  the  city  holds  the  fee 
and  grants  the  right  of  way.  Dtnvir  v. 
Bayir,  7  Colo,  113,  a  Pac.  Ji*p.  6. 

An  incorporated  city  or  town  may  law- 
fully  grant  the  right  and  privilege  of  con- 
structing and  operating  a  railroad  in  a 
public  street,  the  fee  of  which  is  in  the  city 
or  town,  if  it  makes  all  proper  and  reason- 
able provisions  to  protect  lot  owners  and 
the  public  in  the  free  use  of  tlie  same,  and 
in  so  doing  will  incur  no  liability  to  owners 
of  lots  abutting  on  such  street,  who  must 
look  to  the  company  for  any  damage  thereby 
caused  to  their  property.  Olney  v.  Wharf, 
115  ///.  519,  5  N,  E.  litp.  366.— Reviewing 
Moses  V.  Pittsburgh,  Ft.  W.  &  C.  R.  Co.,  31 
III.  516;  Murphy  v.  Chicago,  39  III.  386. 
Reviewing  and  distinguishing  Pekin  v. 
Brereton,  67  111.  477;  Stack  v.  East  St. 
Louis,  85  111.  377 ;  Rigney  v,  Chicago,  103 
III.  64. 

In  Iowa  the  owners  of  lots  abutting  upon 
streets  do  not  own  the  fee  of  the  streets, 
yet  the  courts  recognize  the  doctrine  that 
they  have  a  peculiar  interest  in  tlie  streets 
which  neither  the  local  nor  general  public 
can  claim,  and  which  is  an  easement  attach- 
ing to  the  lots,  and  partakes  of  the  nature 
of  property.  Cadle  v.  Muscatint  Western 
R.  Co.,  44  Iowa  II.— Following  Cook  v. 
Burlington,  30  Iowa  94.— Quoted  in  Mc- 
Quaid  V.  Portland  &  V.  R.  Co.,  40  Am.  & 
Eng.  R.  Cas.  308,  18  Oreg.  337. 

But  this  easement  or  interest  in  the  street 
is  subordinate  to  the  right  of  the  general 
public  to  a  proper  use  of  the  street  for  public 
purposes,  and  for  such  use  no  damages  can 
be  recovered.  But  if  a  railroad  company 
negligently  and  carelessly  appropriates  the 
street,  and  thereby  unnecessarily  enhances 
the  injury  of  the  adjoinitig  proprietor,  he 
may  have  redress,  though  the  road  be  au- 
thorized by  statute  or  an  ordinance  ;  not  for 
the  appropriation  of  the  street,  but  for  the 
negligent  manner  in  which  it  is  done.  Cadle 
V.  Muscatine  Western  R.  Co.,  44  Iowa  11. 

Where,  under  authority  from  a  city  coun- 
cil, a  company  lays  its  track  in  a  street  the 
fee-simple  title  to  which  is  in  the  public,  no 
cause  of  action  for  damages  accrues  to  the 
owner  of  abutting  property,  under  Iowa 
Code,  §  464,  because  of  such  occupation  of 
the  street,  unless  his  property  has  been  ac- 
tually damaged  thereby.     Cook  v.  Chicago, 


M.  &*  St.  P.  R.  Co.,  83  Iowa  378.  49  N.  W. 
Rep.  93.— Following  Milburn  v.  Cedar 
Rapids,  13  Iowa  346;  Clinton  v.  Cedar  Rap> 
ids  &  M.  R.  R.  Co.,  34  Iowa  45$  ;  Slatten  v. 
Dcs  Moines  Valley  R.  Co.,  39  Iowa  148. 

The  owner  of  property  fronting  on  a 
street  of  which  the  fee  is  in  the  town  or 
village  is  entitled  to  damages  for  the  con- 
struction of  a  railroad  on  the  street,  upon 
proving  special  damage.  Omaha  ^  R.  V. 
R.  Co.  v.  Rogers,  ao  Am.  4-  Eng.  R.  Cas.  79, 
16  Neb.  117,  ig  Pac.  Rep.  603.— Following 
Burlington  &  M.  R.  R.  Co.  v.  Reinhackle, 
15  Neb.  379.— Applied  in  Atchison  &  N. 
R.  Co.  V.  Boerner,  34  Neb.  340. 

Owners  of  lots  abutting  on  a  city  street 
the  fee  of  which  is  in  the  municipality  for 
street  uses,  although  they  have  no  title  to 
the  soil,  are  entitled  to  the  benefit  of  the 
street  in  front  of  their  premises  for  access 
and  other  purposes,  and  (an not  be  deprived 
thereof  without  compensation.  Reinit^  v. 
New  York,  L.  &*  W.  R.  Co.,  50  Am.  **  Eng. 
R.  Cat.  305.  138  AT.  Y.  157,  38  A^.  E.  Rep. 
640,  40  A^.  Y.  S.  R.  401 ;  affirming  35  N.  Y. 
S.R.7ZI.  13  N.  Y.Supp.  238. 

The  right  of  such  owners  is  not  so  abso- 
lute in  its  character  tliat  they  can  resist  or 
prevent  any  and  all  interference  with  the 
street,  to  their  detriment;  nor  can  they 
assert  it  to  stay  the  municipality  in  the 
control,  regulation,  or  improvement  of  the 
sheets  in  the  public  interest,  although  it  may 
be  made  to  appear  that  the  privileges  said 
owners  had  enjoyed  and  the  benefits  they 
had  derived  from  the  street  would  be  cur- 
tailed or  impaired,  to  their  injury,  by  the 
changes  proposed.  Reining  v.  New  York, 
L.  6-  W.  R.  Co.,  50  Am.  &*  Eng.  R.  Cas. 
305,  138  N.  Y.  157,  38  A^  E.  Hep.  640  40  N. 
Y.  S.  R.  401 ;  affirming  35  A^  Y.  S.  R.  731, 
ISA^.  Y.  5«//.  338. 

A  company  grading  and  improving  a 
street,  under  a  contract  with  the  city,  upon 
consideration  of  being  permitted  to  con- 
struct its  road  thereon,  is  liable  to  owners 
of  adjoining  lots  who  do  not  own  the  fee 
in  the  street  for  such  injury  only,  resulting 
from  such  grading  and  improvement  of  the 
street  and  construction  of  road,  as  the  city 
would  have  been  liable  for  if  it  had  done 
the  work  itself.  It  is  otherwise  where  the 
railroad  is  constructed  on  a  street  in  which 
the  abutting  owners  hold  the  fee.  Iron 
Mountain  R.  Co.  v.  Bingham,  38  Am.  &* 
Eng.  R.  Cas.  444.  87  Tenn.  522,  4  L.  H,  A, 
623,  II  S.  W.R*p.  70$. 


598 


STREETS  AMD  HIGHWAYS  (RAILWAYS  IN),  142. 


II 


\i 


llitl:. 


m 

i    ' ,!  .Hi 


I    i 


Where  the  municipality  owns  the  fee  of 
streets,  liaving  acquired  the  same  under  the 
town-site  law,  abutting  owners  have  equi- 
table rights  by  way  of  easements  in  the 
streets  of  which  they  cannot  be  deprived 
by  the  municipality  except  in  a  manner  pro- 
vided by  law.  Dooly  Block  v.  Salt  Lake 
Rapid  Transit  Co.,  $6  Am.  &*  Eng.  R.  Cas. 
513,  9  Utah  31,  33  Pac.  Rep.  229. 

(4)  Remedy  at  law  not  in  equity. — Abut- 
ting lot  owners  having  no  tit!':  to  the  fee 
of  a  street  have  no  other  riglt  to  recover 
damciges  from  a  company  for  the  use  of  the 
street  by  the  construction  of  its  road  therein, 
and  tlie  running  of  its  trains  over  the  same 
(no  part  of  the  property  of  complainants 
being  touched  by  the  railroad),  than  that 
whidi  accrued  to  them  by  the  increased 
burden  put  upon  the  street  and  the  injury 
done  to  their  particular  estates.  Against 
wrongs  of  this  character  only,  equity  does 
not  relieve,  but  the  party  must  resort  to  an 
action  at  law,  where  his  damages  may  be 
estimated.  Denver,  U.  &*  P.  R.  Co.  v. 
Banaloux,  15  Colo.  290,  25  Pac.  Rep.  165. 
—Following  Denver  &  S.  F.  R.  Co.  v. 
Domke,  1 1  Colo.  247. 

In  such  case,  where  a  company  constructs 
a  narrow-gauge  road  through  a  street,  and 
operates  the  same  through  a  long  series  of 
years  without  protest  or  objection  from  the 
adjoining;  lot  owners,  the  implied  assent  to 
such  use  presumed  from  their  silence  pre- 
cludes them  from  seeking  any  equitable 
relief  against  the  continued  operation  of 
y^".  toad  as  originally  constructed.  Denver, 
y  <S-  p.  R.  Co.  v.  Barsaloux,  1 5  Colo.  290, 
25  Pac.  Rep.  165. 

Nor  are  such  lot  owners  entitled  to  injunc- 
tive relief  for  the  damages  occasioned  by 
the  laying  of  a  third  rail  on  the  roadbed 
as  originally  constructed,  and  the  operation 
of  broad-gauge  cars  thereon,  no  change 
'  being  made  in  the  width  of  the  roadbed  or 
length  of  the  tics  used  for  the  purpose. 
Denver,  U.  &•  P.  R.  Co.  v.  Barsaloux,  15 
Colo.  290,  25  Pac.  Rep.  165. 

A  decree  which  does  not  undertake  to 
adjudicate  the  rights  of  the  parties  to  the 
use  of  such  street,  but  assumes  to  prohibit 
the  company  from  continuing  to  broaden 
the  gauge  beyond  the  point  reached  when 
the  injunction  suit  is  commenced,  which  is 
beyond  the  complainant's  property,  cannot 
'  be  permitted  to  stand  in  any  event.  Denver, 
U.6*  P.  R.  Co.  V.  Barsaloux,  15  Colo.  290, 
as  Pac.  Ref.  165. 


Where  a  track  is  constructed  upon  • 
public  street,  the  fee  of  which  is  in  the 
municipal  corporation,  the  property  of  an 
adjoining  proprietor  is  not  taken  for  public 
use  and  there  is  no  reason  for  condemning 
any  portion  of  his  property.  If  such  owner 
has  sustained  any  damages  as  a  result  from 
the  laying  and  use  of  such  track,  redress 
can  be  had  in  an  appropriate  action  at  law  ; 
a  court  of  equity  has  no  jurisdiction  to 
determine  his  right  to  damages.  (Sheldon, 
C.J.,  and  Dickey  and  Breese,  JJ.,  dissenting.) 
Peoria  &*  R.  I.  R.  Co.  v.  Scherts,  84  III.  135, 

142.  Rule  where  ownership  of 
the  fee  is  in  abutting  owner.*  —  (i) 
Ingeneral. — In  Indiana  the  abutting  land- 
holders own  the  fee  in  the  streets  of  cities 
and  towns.  Terre  Haute  &•  I.  R.  Co.  v. 
Scott,  3  Am.  &*  Eng-.  R.  Cas.  208, 74  /nd.  29. 

The  exclusive  use  of  a  street  is  in  the 
public,  even  when  the  fee  to  the  centre  of 
the  street  is  in  the  abutting  lot  owners.  The 
owners  of  abutting  lots  have  and  can  have 
no  possession,  or  right  to  the  possession, 
in  fact  or  in  law,  of  the  street  or  any  part  of 
it.  Jeffersonville,  M.  &*  I.  R.  Co.  v.  Esterle, 
iZ  Busk  (AJK.)  667.  17  Am.  Ry.  Rep.  iii.— 
Followed  in  Fulton  v.  Short  R.  R.  Trans- 
fer Co..  85  Ky.  640,  7  Am.  St.  Rep.  619,  4 
S.  W.  Rep.  332. 

Where  a  public  street  is  lawfully  vacated, 
the  owner  of  abutting  property  holds  the 
fee  of  the  former  street,  presumably  to  the 
centre  line,  discharged  from  all  easements 
in  favor  of  either  the  public  or  the  owners 
of  other  property  abutting  on  the  street. 
Lamm  v.  Chicago,  St.  P.,  M.  <S-  O.  R.  Co., 
46  Am.  &»  Eng.  R.  Cas.  42, 45  Minn,  71.  47 
A^.   W.  Rep.  455. 

A  grantee  of  land  abutting  on  a  public 
street,  if  his  grantor  owns  the  fee  of  the 
street,  takes  to  the  middle  of  the  street,  by 
mere  force  of  legal  construction,  unless  a 
contrary  intention  is  apparent.  Dodge  v. 
Pennsylvania  R.  Co.,  36  Am.  &•  Eng.  R.  Cas. 
180.  43  A^.  /.  Eq.  351,  10  Cent.  Rep.  655,  it 
Atl.  Rep.  751  ;  affirmed  in  45  A':  /.  Eg.  366, 

19  Atl.  Rep.  622. 

And  where  lands  are  conveyed  as  abut- 
ting on  a  proposed  street,  and  the  street 

*  In  whom  is  the  fee  of  highway,  see  note,  3 
Am.  &  Eng.  R.  Cas.  218. 

Rights  of  abutting  owner  where  fee  of  street 
is  owned  by  him,  and  where  it  Is  not,  see  notes, 

20  Am.   &  Eng.  R.  Cas.  65;  7  L.  R.  A.  548; 
56  Am.  &  Eng.  R.  Cas.  663,  abstr. 

Fee  to  one  half  of  the  street  in  the  abutting 
owner,  see  29  Am.  &  Eno.  R.  Cas.  580,  abitr. 


r 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  142. 


599 


extends  over  other  lands  of  the  grantor 
than  those  conveyed,  a  right  to  the  use  of 
the  proposed  street,  as  a  means  of  passage 
to  and  from  the  lands  conveyed,  will  arise  by 
implication  in  favor  of  the  grantee  on  the 
delivery  of  the  deed,  and  will  continue  in 
force  until  the  proposed  street  becomes  a 
public  highway.  Dodge  v.  Pennsylvania  R, 
Co.,  36  Am.  &-  Eng.  R.  Cas.  180,  43  A'.  /. 
Eg.  351,  10  Cen/.  Rep.  655,  11  Atl.  Rep.  751 ; 
affirmed  in  45  N.J.  Eg.  366,  i^Atl.  Rep.  622. 
—Following  Booraem  v.  North  Hudson 
County  R.  Co.,  40  N.  J.  Eq.  557. 

Whether  such  private  right  will  merge  in 
the  public  right  when  the  proposed  street 
becomes  a  public  highway,  and  will  be 
extinguished  with  the  public  right  if  the 
street  is  afterwards  vacated,  or  will  revive 
on  vacation,  is  a  question  on  which  judicial 
opinion  is  at  variance,  and  is,  as  a  matter  of  ■ 
law,  unsettled  in  this  state.  Dodge  v.  Penn- 
sylvania R.  Co.,  36  Atn.  <S-  Eng.  R.  Cas.  180, 
43  N.J.  Eg.  351,  10  Cent.  Rep.  655,  11  Atl. 
Rep.  751 ;  affirmed  in  45  N.  J.  Eg.  366,  19 
Atl.  Rep.  622.— Not  following  Clark  v. 
Elizabeth,  40  N.  J.  L.  172.  Reviewing  At- 
torney-General ex  rel.  v.  Morris  &  E.  R.  Co., 
19  N.  J.  Eq.  386. 

Where  a  lot  is  described  in  the  deed  con- 
veying it  as  bounded  on  certain  streets,  it 
extends  to  the  middle  of  the  streets,  sub- 
ject to  the  public  easement  therein.  This 
is  the  general  rule  as  to  land  in  the  country, 
and  it  is  applicable  to  city  property  also. 
People  V.  Law,  34  Barb.  \n.  Y.)  494,  22 
How.  Pr.  109. 

Where  the  title  to  abutting  lots  extends 
only  to  the  border  of  the  street,  the  owner 
is  not  entitled  to  damages  where  the  street 
is  taken  for  railroad  purposes;  but  it  is 
otherwise  wb^re  his  title  extends  to  the 
middle  of  the  street.  Wetmore  v.  Law, 
22  How.  Pr.  {N.  Y.)  130. 

Where  a  grantor  conveys  a  lot  bounded 
by  a  piece  of  ground  laid  out  as  a  street 
upon  a  map  in  reference  to  which  the  sale 
is  made,  but  which  is  not,  in  fact,  a  public 
street  or  highway,  such  conveyance  carries 
with  it  the  fee  to  the  centre  ol  the  street,  as 
part  and  parcel  of  the  grant.  There  is  no 
distinction  in  this  respect  between  city 
streetsand  the  highways  of  a  town.  Whether 
the  public  has  ever  accepted  its  use  as  a 
street  or  not  cannot  affect  the  matter  as 
between  grantor  and  grantee.  Bisselt  v.  New 
York  C.  R.  Co.,  23  A''.  Y.  61.— Applied  in 
Perrin  v.  New  York  C.  R.  Co..  36  N.  Y.  120. 


Followed  in  Lozier  v.  New  York  C.  R. 
Co.,  42  Barb.  (N.  Y.)  465. 

In  Wisconsin  the  proprietors  of  lots 
bounded  by  a  public  street  within  a  recorded 
town  plat  or  village  take  to  the  centre  of 
the  street  and  own  the  soil,  subject  to  the 
public  easement.  Ford  v.  Chicago  &'  N. 
W.  R.  Co.,  14  Wis.  609.— Following  Kim- 
ball V.  Kenosha,  4  Wis.  321  ;  Goodall  v. 
Milwaukee,  5  Wis.  32;  Milwaukee  v.  Mil- 
waukee &  B.  R.  Co.,  7  Wis.  85  ;  Mariner  v. 
Schulte,  13  Wis.  692, 

(2)  Compensation  allonved.  —  Where  the 
public  has  only  an  easement  in  a  street  or 
highway,  and  the  fee  of  the  soil  is  in  the 
abutting  owner,  a  steam  railroad  cannot, 
under  the  constitutional  guaranty  of  private 
property,  be  lawfully  constructed  and  oper- 
ated thereon  against  the  will  of  the  abut- 
ting owner  and  without  any  compensation 
to  him.  IV/iite  v.  Northwestern  N.  C.  R. 
Co.,  56  Am.  &*  Eng.  R.  Cas.  706,  113  N.  Car. 
610,  18  S.  E.  Rep.  330.— Following  Grand 
Rapids  &  I.  R.  Co.  v.  Heisel,  47  Mich.  393 ; 
South'.r.:  Pac.  R.  Co.  v.  Reed,  41  Cal.  256; 
Imlay  v.  Union  Branch  R.  Co.,  26  Conn. 
249;  South  Carolina  R.  Co.  z/.  Steiner,  44 
Ga.  546 ;  Daly  v.  Georgia  Southern  &  F.  R. 
Co..  80  Ga.  793;  Cox  v.  LoulsviHe,  N.  A. 
&  C.  R.  Co.,  48  Ind.  178;  Kucheman  v. 
Chicago,  C.  &  D.  R.  Co.,  46  Iowa  366; 
Indianapolis,  B.  &  W.  R.  Co.  v.  Hartley, 
67  111.  439;  Phlpps  V.  West  Md.  R.  Co.,  66 
Md.  319;  Springfield  v.  Connecticut  River 
R.  Co.,  4Cush.  (Mass.)  63 ;  Harrington  v.  St. 
Paul  &  S.  C.  R.  Co.,  17  Minn.  215;  Hastings 
&  G.  I.  R.  Co.  V.  Ingalls,  1 5  Neb.  1 23 ;  Cham« 
berlain?^.  Elizabethport  Steam  Cordage  Co., 
41  N.  J.  Eq.  43;  Lawrence  R.  Co.  v.  Will- 
iams, 35  Ohio  St.  168;  Ford  ?/.  Chicago  & 
N.  W.  R.  Co.,  14  Wis.  609;  Carl  v.  Sheboy- 
gan &  F.  du  L.  R.  Co.,  46  Wis.  625  ;  Buch- 
ner  v.  Chicago,  M.  &  N.  W.  R.  Co.,  60  Wis. 
264;  Indianapolis  &  C.  R.  Co.  v.  McAhren, 
12  Ind.  552;  Theobold  v.  Louisville,  N. 
O.  &  T.  R.  Co.,  66  Miss.  279;  Barneys. 
Keokuk,  94  U.  S.  324;  Adams  v.  Chicago, 
B.  &  N.  R.  Co.,  39  Minn.  286.— Reic/iert  v. 
St.  Louis  &*  S.  F.  R.  Co.,  38  Am.  6^  Eng. 
R.  Cas.  453,  51  Ark.  491, 1 1  S.  W.  Rep.  696.— 
yuoTiNG  Springfield  v.  Connecticut  River 
R.  Co.,  4  Cush.  71  ;  Wager  v.  Troy  Union  R. 
Co.,  25  N.  Y.  533 ;  Williams  v.  New  York  C. 
R.  Co.,  16  N.  Y.  109. —  Weylv.  Sonoma  Valley 
R.  Co.,  69  Cal.  202,  10  Pac.  Rep.  510.— Dis- 
tinguished IN  Finch  v.  Riverside  &  A.  R. 
Co.,  46  Am.  &  Eng.  R.  Cas.  107, 87  Cal.  597. — 


w 

Mill 


m 


600 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  142. 


..4- 


Board  of  Trade  Tel.  Co.  v.  Burnett,  107  ///, 
507.  Egbert  v.  Z.a>6<r  5//tfr^  •S'*  il/.  S.  R.  Co., 
56  ^;«.  &*  Eng.  li.  Cas.  648,  6  /«</.  ^z*/.  350, 
33  A'^  E.  Rep.  659.  Kucheman  v.  Chicago, 
C.  &*  D.  R.  Co.,  46  /<K</rt  366.— Criticising 
Porter  v.  North  Mo.  R.  Co.,  33  Mo.  128; 
Barney  v.  Keokuk,  94  U.  S.  324.  Distin- 
guishing Milburn  v.  Cedar  Rapids,  12 
Iowa  246;  Clinton  v.  Cedar  Rapids  &  M.  R. 
R.  Co.,  24  Iowa  455 ;  Slatten  v.  Des  Moines 
Valley  R.  Co.,  29  Iowa  148;  Ingraham  v. 
Chicago,  D.  &  M.  R.  Co.,  38  Iowa  669; 
Morris  &  E.  R.  Co.  v.  Mayor,  etc.,  of 
Newark,  10  N.  J.  Eq.  352 ;  Lexington  &  O. 
R.  Co.  V.  Applegate,  8  Dana  (Ky.)  289. 
Following  Williams  v.  New  York  C.  R. 
Co.,  16  N.  Y.  97.  Not  following  Davis 
V.  Mayor,  etc.,  of  N.  Y.,  14  N.  Y.  506.— 
Reviewed  in  Small  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  50  Iowa  338.  Dissenting  opinion 
reviewed  and  approved  in  Blesch  v. 
Chicago  &  N.  W.  R.  Co..  48  Wis.  168.— 
Theobold  v.  Louisville,  N.  O.  &*  T.  R.  Co., 
38  Am.  &-  Eng.  R.  Cas.  462,  66  Miss.  279,  4 
L.  R.  A.  735,  6  So.  Rep.  230.  Lackland  v. 
North  Mo.  R.  Co.,  31  Mo.  180.— Applied 
IN  Conlon  V.  City  R.  Co.,  8  Nov.  Sc.  209. 
Criticised  in  Adams  H.  Chicago,  B.  &  N. 
R.  Co.,  36  Am.  &  Eng.  R.  Cas.  7,  39  Minn. 
286.  39  N.  W.  Rep.  629,  I  L.  R.  A.  493,  38 
Alb.  L.  j.  388.  Followed  in  Gaus  &  S. 
Mfg.  Co.  V.  St.  Louis,  K.  &  N.  R.  Co.,  113 
Mo.  308.  Quoted  in  Virginia  &  T.  R.  Co. 
V.  Lynch,  13  Ncv.  92.  Hoilges\.  Seaboard 
dr-  R.  R.  Co.,  88  Va.  653,  14  S.  E.  Rep.  380. 
—Quoting.  James  River  &  K.  Co.  v. 
Anderson,  12  Leigh  (Va.)  278. 

(3)  Illustrations.  —  When  the  fee  of  a 
street  is  in  the  abutting  lot  owners,  the  fact 
that  a  company  lias  authority  by  statute 
and  by  municipal  ordinance  to  construct  its 
track  upon  the  same  constitutes  no  defense 
to  an  action  brought  by  the  lot  owners 
against  the  company  to  recover  possession 
of  the  land,  the  use  of  the  street  for  a  rail- 
road not  being  within  the  scope  of  the  pub- 
lic easement.  Reichert  v.  St.  Louis  &•  S.  F. 
R.  Co.,  38  Am.  St*  Eng.  R.  Cas.  453,  51  ArJt. 
491,  II  5.  IV.  Rep.  696. 

The  state  of  Indiana  laid  out  the  city  of 
Indianapolis,  as  its  seat  of  government,  on 
lands  donated  by  the  United  States.  Held, 
that  the  right  to  the  streets  vested  in  the 
city  for  the  use  of  the  public,  the  same  as  it 
would  had  the  city  been  laid  out  by  private 
citizens  in  the  same  way ;  and  a  conveyance 
by  its  number  of  a  lot  abutting  on  a  street 


vests  in  the  grantee  the  fee  to  one  half  of 
the  street  adjacent,  subject  to  the  public 
use,  entitling  him  to  damages  for  its  appro- 
priation for  railroad  purposes.  Terre  Haute 
&-  /.  R.  Co.  V.  Scott,  3  Am.  &*  Eng.  R.  Cas. 
208,  74  /«</.  29. 

In  such  case  a  statute  authorizing  rail- 
road companies  to  enter  upon  land  desired 
for  a  right  of  way,  where  the  same  cannot 
be  purchased,  and  requiring  the  owner  to 
apply  for  an  assessment  of  damages  within 
two  years,  or,  failing  to  do  so,  he  shall  be 
barred,  does  not  apply  where  a  company  has 
only  occupied  the  street;  and  he  may  have 
a  right  of  action  against  the  company  after 
the  two  years,  if  it  has  entered  without  at- 
tempting to  agree  upon  the  compensation, 
as  required  by  its  charter.  Terre  Haute  S- 
L  R.  Co.  V.  Scott,  3  Am.  &*  Eng.  R.  Cas.  208, 
74  Ind.  29. —  Distinguishing  Swinney  v. 
Ft.  Wayne,  M.  &  C.  R.  Co.,  59  Ind.  205. 
Reconciling  Indiana  C.  R.  Co.  v.  Oakes, 
20  Ind.  9.  Reviewing  Cox  v.  Louisville, 
N.  A.  &C.  R.  Co..  48  Ind.  178. 

(4)  Measure  of  compensation. — Where  an 
abutting  owner  owns  the  fee  to  one  half  of 
the  street,  his  damages  against  a  railroad 
company  occupying  the  street  are  the  value 
of  his  interest  in  the  land  taken,  together 
with  the  damage  to  the  lot,  which  is  the 
difference  in  its  value  at  the  time  when  the 
road  was  commenced  and  its  value  when 
such  road  is  completed.  Mullerv.  Southern 
Pac.  Branch  R.  Co.,  83  Cal.  240,  23  Pac. 
Rep.  265. 

Where  a  lot  is  conveyed  as  bounded  on 
a  street  or  hij^hway,  or  where  no  street  or 
highway  is  specifically  mentioned,  but  the 
lot  abuts  thereon,  the  owner  of  the  lot  owns 
the  soil  to  the  centre  of  the  street  or  high- 
way, subject  to  the  rights  of  the  public 
therein  ;  and  he  is  entitled  to  damages  for 
laying  a  railroad  track  in  the  street  without 
his  consent  and  without  compensation, 
measured  by  the  decreased  market  or  rental 
value  of  his  premises,  or  the  injury  to  busi- 
ness or  family  occupation.  Florida  Southern 
R.  Co.  V.  Brown,  23  Fla.  104,  i  So.  Rep.  512. 

An  abutting  owner  who  does  not  own 
the  soil  in  a  street  cannot  recover  damages 
resulting  from  the  presence  of  a  railroad  in 
the  street,  but  only  such  damages  as  arise 
from  the  misconduct  of  the  company  in 
creating  a  nuisance,  such  as  leaving  can 
standing  for  an  unreasonable  time  in  front 
of  his  premises.  Grand  Rapids  &*  I.  R.  Co. 
V.  Heisel,  38  Mich.  6a;  further  appeal  ^ 


I 


4 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  143. 


601 


Mich.  393,  II  A'^  E.  Rep.  212.— Approved 
IN  O'Brien  v.  Baltimore  Belt  R.  Co..  74  Md. 
363.  Quoted  in  Adams  v.  Chicago,  B.  & 
N.  R.  Co.,  36  Am.  &  Eng.  R.  Cas.  7,  39 
Minn.  286.  39  N.  W.  Rep.  629,  i  L.  R.  A. 
493.  38  Alb.  L.  J.  388;  Columbus,  H.  V.  & 
T.  R.  Co.  V.  Gardner.  32  Am.  &  Eng.  R. 
Cas.  243,  45  Ohio  St.  309.  11  West.  Rep. 
264,  13  N.  E.  Rep.  69. 

A  street-railway  track  may  be  authorized 
on  a  street  without  compensating  the  abut- 
ting lot  owners,  but  an  ordinary  railroad 
cannot.  Where  a  railroad  has  been  built  in 
a  city  street  without  compensating  the 
abutting  owners,  who  own  the  soil  of  the 
street,  they  have  a  right  of  action  for  the 
injury  that  results  to  their  freehold,  such  as 
an  injury  to  the  market  or  rental  value,  or 
annoyances  of  business  or  family  occupation. 
Grand  Rapids  &*  I.  R.  Co.  v.  Heiitt,  38 
Mich.  62 ;  further  appeal  47  Mich.  393,  1 1 
A^  E.  Rep.  212. 

(5)  Compensation  denied.  —  The  occupa- 
tion and  use  of  the  street  of  a  city  or  town 
as  the  site  of  a  steam  railroad  do  not  en- 
title owners  of  the  fee  adjacent  thereto  to 
the  centre  of  the  street  to  compensation,  as 
for  property  taken  for  public  uses.  Eliza- 
bethtown  ^  P.  R.  Co.  v.  Thompson,  14  Am. 
&*  Eng.  R.  Cas.  m,  79  Ky.  52.— Quoting 
Rowan  v.  Portland,  8  B.  Mon.  232 ;  Wick- 
lifle  V.  Lexington,  11  B.  Mon.  155. 

In  a  conveyance  of  land  bounded  by  a 
public  road  or  street,  the  grantee  ordinarily 
takes  a  legal  title  to  the  centre  thereof,  sub- 
ject to  the  rights  of  the  public  therein ;  but 
he  does  not  thereby  secure  such  a  title  to 
the  land  embraced  in  the  road  or  street  as 
will  enable  him  to  claim  compensation  from 
a  railway  corporation  which  locates  and 
operates  its  road  thereon,  under  an  appro- 
priation of  the  same  authorized  by  statute. 
McQuaids.  Portland  <S-  V.  R.  Co.,  40  Am. 
**  Eng.  R.  Cas.  308,  18  Oreg.  237,  22  Pac. 
Rep.  899. 

(6)  Matters  of  procedure: —  Plaintiff,  as 
owner  of  the  soil  of  a  street,  has  no  right  to 
object  to  defendant's  use  of  the  same  on 
the  ground  that  it  imposes  a  servitude  addi- 
tional to  the  proper  street  easement,  and 
defendant  being  in  possession  (so  far  as 
necessary  for  the  purposes  of  its  railway)  of 
the  street  with  the  sanction  and  acqui- 
escence of  the  public  authorities,  plaintiff  is 
not  in  a  position  to  object  that  defendant, 
in  its  use  of  the  streets  and  the  operation  nf 
its  railway,  is  acting  ultra  vires,  or  that  it  is 


invading  the  franchise  of  another  corpora- 
tion. Newell  V.  Minneapolis,  L.  &*  M.  R. 
Co.,  24  Am.  6«  Efig.  R.  Cas.  298,  35  Minn. 
112.  27  M  lV.Rep.Zy9. 

The  common-law  presumption  that  pro- 
prietors of  land  adjoining  a  public  highway 
are  the  owners  of  the  fee  of  said  highway 
applies  to  the  streets  of  New  York  city  as 
well  as  to  highways  in  the  country ;  and  the 
burden  of  overthrowing  this  presumption  is 
upon  a  company  which  appiupriates  such 
streets.  It  seems  that  the  fee  to  such  streets 
as  were  opened  under  the  act  of  1813  is  in  the 
city.  Hochhalter  v.  Manhattan  R.  Co.,  31  N. 
Y.  S.  R.  112,  56  Hun  642,  mem.,  g  M.  I'. 
Supp.  341. 

In  Wisconsin  abutting  lot  owners  own 
the  soil  to  the  centre  of  the  street.  There- 
fore, a  city,  in  its  corporate  capacity,  has 
not  sue!,  an  interest  in  streets  or  public 
squares  as  will  enable  it  to  maintain  an  in- 
junction to  restrain  the  laying  of  railroad 
tracks  thereon.  Milwaukee  v.  Milwaukee 
&*  B.  R.  Co.,  7  IVis.  85.— Followed  in 
Ford  V.  Chicago  &  N.  W.  R.  Co.,  14  Wis. 
609.  Reviewed  in  Sheboygan  v.  Sheboy- 
gj  I  A  F.  du  L.  R.  Co..  21  Wis.  667. 

143.  When  ownership  of  the  fee 
Is  imniateriaL— (I)  In  general.— In  Iowa 
streets  of  towns  or  cities  may  be  occupied 
by  railway  tracks  without  the  consent  of  the 
adjacent  proprietor,  and  without  compensa- 
tion ;  but  this  extends  only  to  tracks,  and 
not  to  permanent  obstructions  like  depot 
buildings.    Barney  v.  Keokuk,  94  U.  S.  324. 

And  the  right  thus  to  use  streets  exists 
even  though  the  fee  of  the  street  is  in  the 
adjacent  proprietor,  or  in  a  third  person.  In 
the  city  of  Keokuk  the  fee  to  the  streets  is 
in  the  adjacent  proprietors.  Barney  v.  Keo- 
kuk, 94  U.  S.  324.— Distinguished  in  Sel- 
den  V.  Jacksonville,  28  Fla.  558. 

There  is  no  substantial  difference  be- 
tween streets  in  which  the  legal  title  is  in 
private  individuals  and  those  in  which  it  is 
in  the  public,  as  to  the  rights  of  the  public 
therein.     Barney  v.  Keokuk,  94  U.  S.  324. 

Under  Colo.  Const,  art.  2,  §  15,  provid- 
ing that  private  property  shall  not  be  taken 
or  damaged  for  public  or  private  use  with- 
out just  compensation,  the  owners  of  lots 
abutting  on  a  street  in  a  city  are  entitled  to 
compensation  for  the  use  of  the  street  for 
railroad  purposes;  and  the  right  to  com- 
pensation is  the  same  whether  the  lot  owner 
owns  to  the  middle  of  the  street  or  not. 
Mollandin  v.  Union  Pac.  R.  Co.,  4  McCrary 


Ml 


602 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  143. 


I 


I 


{U.  S.)  290, 14  Fed.  Rep.  394.— Reviewed  in 
Gottsclialk  V.  Chicago,  B.  &  Q  R.  Co.,  14 
Am.  &  Eng.  R.  Cas.  157,  14  Neb.  550. 

Where  an  abutting  lot  owner  does  not 
own  the  soil  to  the  middle  of  the  street  he 
cannot  recover  Incidental  damages  for 
mere  annoyance  resulting  from  the  laying 
of  a  railroad  track  thereon,  such  as  annoy- 
ance from  smoke  and  noise;  but  he  may 
recover  any  special  damage  which  he  may 
suffer  by  the  track  being  so  laid  as  to  curtail 
his  use  of  the  street,  or  for  any  injury  re- 
sulting from  negligence  or  improper  acts  in 
operating  the  road.  Florida  Southern  A*. 
Co.  V.  Brown,  23  Fla.  104,  i  So.  Rep.  512. 

Whether  an  abutting  landowner  can  main- 
tain an  action  for  damages  does  not  depend 
upon  his  ownership  of  the  fee  to  the  land 
included  in  the  public  road  or  street,  but 
upon  whether  the  location  and  the  opera- 
tion of  the  railway  destroy  or  materially 
interfere  with  his  access  to  his  premises. 
McQuaid  V.  Port/and  <S-  V.  R.  Co.,  40  Am. 
&*  Eng^.  R.  Cas.  308.  18  Oreg^.  237,  22  Pac. 
Rep.  899.— Quoting  Cadle  v.  Muscatine 
Western  R.  Co.,  44  Iowa  11. 

The  use  of  a  street  for  the  operation  of  a 
steam  railroad  is  a  perversion  of  the  street 
from  its  original  and  proper  public  purposes, 
imposing  a  new  znd  additional  burden,  for 
which  the  abutting  owner  is  entitled  to  com- 
pensation whether  the  fee  of  the  street  is  in 
the  city  or  in  the  abutting  owners.  White  v. 
North  Western  N.  C.  R.  Co.,  56  Am.  &*  Eng. 
R.  Cas. 706,  II 3 N.  Car. 6io,iSS.W.  Rep.  330. 
Jeffersonville,  M.  &*  I.  R.  Co.  v.  Ester le,  13 
Bush  (A>.)  667,  1 7  Am.  Ry.  Rep.  1 1 1.  Vir- 
ginia &•  T.  R.  Co.  V.  Lynch,  13  Nev.  92.— 
Quoting  Lackland  v.  North  Mo.  R.  Co., 
31  Mo.  180.  Reconciling  Slatten  v.  Des 
Moines  Valley  R.  Co.,  29  Iowa  152;  Porter 
V.  North  Mo.  R.  Co.,  33  Mo.  128.  Review- 
ing Tate  V.  Ohio  &  M.  R.  Co.,  7  Ind.  480. 

(2)  Where  abutting  owners  do  not  own  the 
fee. — Under  Arkansas  Constitution  of  1874, 
which  provides  that  "  private  property  shall 
not  be  taken,  appropriated,  or  damaged 
without  just  compensation,"  the  owner  of 
premises  abutting  upon  a  street  may  re- 
cover from  a  railroad  company  damages  re- 
sulting to  his  premises  by  the  construction 
of  its  road  along  the  street  in  such  manner 
as  to  obstruct  access  to  the  premises,  though 
he  have  no  interest  in  the  fee  of  the  street, 
and  no  part  of  his  premises  be  taken,  and 
the  road  or  other  structure  be  skilfully  and 
properly  built.    Hot  Springs  R.  Co.  v.  Wiii' 


iamson.  45  Ark.  429.  —  Quoting  Metro- 
politan Board  of  Works  v.  McCarthy,  L.  ^. 
7  H.  L.  243;  Widder  V.  Buffalo  &  L.  H.  R. 
Co.,  29  U.  C.  Q.  B.  154.  Reviewing  Cale- 
donian R.  Co.  V.  Walker,  35  Moak  Rep.  177. 
—Followed  in  Little  Rock,  M.  R.  &  T. 
R.  Co,  V.  Siielton,  45  Ark.  446. 

One  owning  a  lot  abutting  on  a  street, 
though  he  does  not  own  the  fee  to  the 
street,  has  such  an  easement  therein  as  will 
enable  him  to  maintain  an  action  against  a 
railroad  company  for  occupying  the  street 
with  a  steam  surface  railroad  so  as  to  im- 
pair his  easement.  Fathers.  New  York,  W. 
S.  <S-  B.  R.  Co.,  17  Abb.  N.  Cas.  (N.  V.)  279. 
—Applying  Story  v.  New  York  El.  R.  Co., 

90  N.  Y.  122;  Mahady  v.  Bush  wick  R.  Co.. 

91  N.  Y.  148. 

In  such  case  a  court  may  grant  an  injunc- 
tion against  the  operation  of  the  road,  to 
be  avoided  by  the  payment  of  the  damages 
ascertained  and  the  execution  of  a  release 
by  the  plaintiff.  Falser  v.  New  York,  W. 
S.  &>  B.  R.  Co.,  17  Abb.  N.  Cas.  (N.  Y.)  279. 

Abutting  lot  owners  who  do  not  own  the 
fee  in  the  street  may  recover  of  a  company, 
operating  its  road  by  permission  upon  a 
public  street,  such  damages  as  result  t  > 
them  from  an  unlawful  and  improper  use  of 
the  street  by  the  company.  Iron  Mountain 
R.  Co.  V.  Bingham,  38  Am.  &*  Eng.  R.  Cas. 
444,  87  Tenn.  522,  4  L.  R.  A.  622,  1 1  S.  W. 
Rep.  705. 

(3)  Remedy  —  Damages.  —  The  abutting 
lot  owners  on  a  street,  part  of  which  is  oc- 
cupied by  a  railroad  company,  whether  they 
own  the  fee  in  the  ground  covered  by  the 
street  or  not,  will  not  be  entitled  to  enjoin 
excavation  and  construction  along  the  street 
in  a  careful  and  proper  manner,  unless  in 
doing  so  the  injury  to  the  lot  owners  will  be 
such  as  will  entirely  destroy  the  value  of 
their  property,  and  therefore  be  equivalent 
to  a  virtual  taking  of  it  by  the  company. 
Arbenz  v.  Wheeling  «S-  Jf.  R.  Co.,  40  Am. 
&'Eng.  R.  Cas.  284,  33  W.  Va.  i.  5  L.  R. 
A.  371,  10  S,  E.  Rep.  14.  —  Explaining 
Spencer  v.  Point  Pleasant  &  O.  R.  R.  Co., 
23  W.  Va.  406. 

Such  injunction  can  be  obtained  only 
under  peculiar  circumstances.  Spencer  v. 
Point  Pleasant 6*  O. R.  R.  Co.,  23  W.  Va.  406. 
—Followed  in  Campbell  v.  Point  Pleasant 
&  O.  R.  R.  Co.,  23  W.  Va.  448;  Smith  v. 
Point  Pleasant  &  O.  R.  R.  Co.,  33  W.  Va. 
451 ;  Hale  v.  Point  Pleasant  &  O.  R.  R.  Co., 
23  W.  Va.  454.    Quoted  in  Taylor  v.  Baiti- 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  144-146. 


603 


more  ft  O.  R.  Co.,  39  Am.  ft  Eng.  R.  Cas. 
«59.  33  W.  Va.  39,  10  S.  E.  Rep.  29. 

But  such  lot  owners,  whether  they  own 
such  fee  in  the  street  or  not,  may  by  an  action 
at  law  recover  of  the  company  such  damages 
as  they  might  have  recovered  in  a  common- 
law  suit,  had  the  company  built  its  road  in 
said  street  without  proper  authority;  for 
while  the  company  has  built  its  road  by 
proper  authority,  conferred  directly  by  the 
legislature  or  by  a  town  council  authorized 
so  to  do  by  the  legislature,  it  cannot  be  re- 
garded as  committing  a  nuisance  in  so  build- 
ing its  road  and  using  it  in  a  careful  and 
proper  manner.  Yet  under  W.  Va.  Const, 
art  3,  §  9,  the  company  is  liable  for  the 
permanent  damages  it  inflicts  on  such  ad- 
joining lots  in  the  same  manner  as  if  it  had 
built  its  road  without  such  proper  authority ; 
but  after  it  has  been  once  sued  for  such 
damages  it  is  not  liable  to  be  sued  for  the 
nuisances  which  necessarily  result  from  the 
running  of  its  cars  through  such  street,  for 
in  so  doing  it  is  only  exercising  its  rights 
and  is  not  committing  a  nuisance.  Spencer 
v.  Point  Pleasait  &>  O.  Ji.  R,  Co.,  23  W.  Va. 
406.  —  Quoting  Morris  &  E.  R.  Co.  v. 
Mayor,  etc.,  of  Newark,  10  N.  J.  Eq.  352. 
Reviewing  Richardson  v.  Vermont  C.  R. 
Co.,  25  Vt.  465  ;  Stone  v.  Fairbury.  P.  &  N. 
W.  R.  Co.,  68  III.  394.  —  Followed  in 
Campbell  v.  Point  Pleasant  &  O.  R.  R.  Co., 
23  W.  Va.  448 ;  Smith  v.  Point  Pleasant  & 
O.  R.  R.  Co..  23  W.  Va  451  ;  Hale  v.  Point 
Pleasant  &  O.  R.  R.  Co.,  23  W.  Va.  454. 

3.  Location  of  Track.     Turnouts  and 
Side  Tracks. 

144.  Validity  of  ordinance  errant- 
ing  leave  to  lay  tracks. — A  city  council 
acts  in  a  legislative  capacity  in  granting  to 
a  railroad  company  the  right  to  locate  its 
track  over  streets,  and  the  location  of  the 
road  should  be  prescribed  with  reasonable 
certainty;  and  an  ordinance  is  void  which 
leaves  it  to  the  discretion  of  the  company 
to  locate  the  track.  Hickey  v.  Chicago  &* 
IV.  I.  R.  Co.,  6  ///.  App.  172. 

145.  Only  so  much  of  the  street  to 
be  used  as  is  necessary  for  the  oper- 
ation of  the  road. — Neither  a  state  nor  a 
municipal  corporation  can  permit  a  railroad 
company  to  construct  tracks  in  a  street  and 
use  them  in  such  a  manner  as  to  render 
abutting  lands  less  valuable.  St.  Paul  &* 
P.  R.  Co.  v.  Sckurmeir,  7  Wall.  {U.  S.)  272. 


—Followed  in  St.  Paul,  S.  &  T.  F.  R.  Co. 
V.  First  Div.  St.  P.  &  P.  R.  Co.,  26  Minn.  31. 

A  width  of  nineteen  feet  on  each  side  of 
a  track,  excluding  the  sidewalks,  which  are 
twelve  feet,  is  a  sufficient  passway,  and 
therefore  plaintiff,  an  abutting  owner,  can- 
not complain  that  his  right  of  ingress  or 
egress  is  unreasonably  obstructed.  Louis- 
ville &*  N.  R.  Co.  V.  Orr,  91  Ajr.  109, 1 5  5.  »f  . 
Rep.  8. 

And  defendant,  having  purchased  from 
another  company  the  road  upon  which 
plaintiff's  property  abuts,  is  not  liable  for 
injuries  resulting  from  the  improper  opera- 
tion of  the  road  by  its  vendor.  Louisville 
&»  N.  R.  Co.  V.  Orr,  91  Ky.  109,  is  5.  W. 
Rep.  8. 

A  franchise  to  use  a  public  highway  for  a 
railroad  authorizes  the  appropriation  of  so 
much  only  as  is  necessary  for  the  road,  and 
this  privilege  is  exhausted  by  the  appropria- 
tion in  fact  of  so  much  of  the  roadway  as 
the  proper  construction  of  the  road  actually 
requires.  Sixth  Ave.  R.  Co.  v.  Gilbert  El. 
R.  Co..  ii/.&'S.  (N.  V.)  292,  3  AM.  N.  Cas. 
372 ;  reversing  g  /.  &*  S.  489. 

146.  Bight  to  lay  double  or  addi- 
tional tracks.— A  lot  owner  has  a  right  of 
action  to  recover  damages  to  his  lot  from 
the  unauthorized  laying  of  additional  rail- 
road tracks  in  the  street  fronting  his  lot, 
whereby  the  use  of  the  street  for  purposes 
of  a  highway  is  destroyed,  and  access  to  the 
lot  is  cut  off,  and  for  creating  a  nuisance  by 
allowing  stock  cars  to  stand  in  the  street 
adjoining  the  lot.  Pittsburg,  Ft.  W.  6-  C. 
R.  Co.  V.  Reich,  loi  ///.  157. 

Defendant  company  was  authorized  by  an 
ordinance  to  lay  two  tracks  in  a  street. 
Soon  after  the  ordinance  was  passed  defend- 
ant laid  one  track,  but  ten  years  afterwards 
it  moved  the  first  track  nearer  to  plaintifl's 
property  and  put  down  a  second  track. 
Held,  that  the  damages  to  plaintiff's  prop- 
erty could  not  be  claimed  to  have  fully 
accrued  at  the  time  the  first  track- was  laid, 
so  as  to  prevent  a  further  recovery.  Malt' 
man  v.  Chicago,  M.  6-  St.  P.  R.  Co.,  41  ///. 
App.  229. 

A  city  granted  to  a  company  a  right  of 
way  to  lay  its  track  in  a  street  upon  condi- 
tion that  it  grade  and  gravel  the  street,  and 
make  and  maintain  all  necessary  culverts  and 
crossings,  the  grade  to  be  established  so  as 
not  to  interfere  materially  with  the  conven- 
ience of  the  public  in  crossing  the  track 
where  other  streets  intersected  such  street. 


SI 


904        STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  147-149. 


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Another  condition  was  that  the  "  line  of  the 
railroad  "  should  "  be  located  so  as  not  to 
approach  the  sidewalk  curbstone  nearer 
than  fifteen  feet."  The  company  also  prose- 
cuted proceedings  of  appropriation,  and  had 
the  damages  sustained  by  ail  the  adjacent 
landowners  assessed.  The  use  to  be  made 
of  the  property  was  in  no  way  limited. 
NM,  that  the  com^'any  had  a  right  to  lay 
one  or  more  trac'  .he  street;  that  the 

■  words  "  lint  c*  t'  i:  "<d,"  as  used  in  the 
ordinance,  had  ■.  i  to  the  outer  rail 
of  the  track,  and  so  long  as  there  was  a 
clear  fifteen  iec<  between  such  outer  rail 
and  the  curbstone,  a-  1  the  •  >  k  was  not 
raised  above  the  estaliiished  j^tide  o'  the 
street,  an  abutting  landowner  could  not 
object.  Chicago,  St.  L.  &*  P.  H.  Co.  v. 
Eisert,  127  Ind.  156,  26  A^.  E.  Rep.  759. 

Where  the  right  to  occupy  the  streets  of 
a  city  has  been  granted  to  a  company,  the 
construction  of  an  additional  track,  without 
the  consent  of  the  municipal  authorities, 
does  not  of  itself  constitute  a  nuisance,  or 
entitle  abutting  property  owners  to  recover 
damages.  Davis  v.  Chicago  S*  N.  IV.  R. 
Co.,  46  Iowa  389.  16  Am.  Ry.  Rep.  45.— DIS- 
TINGUISHED IN  Heath  v.  Des  Moines  &  St. 
L.  R.  Co.,  10  Am.  &  Eng.  R.  Cas.  313,  61 
Iowa  II. 

A  company  was  authorized  by  charter  to 
use  a  public  street.  At  the  time  of  the  lo- 
cation and  construction  of  the  railroad 
there  were  no  outside  facts  pointing  to  a 
necessity  for  more  than  one  track  on  the 
street.  The  company  laid  one  track  and 
continued  to  use  it  for  twenty  years. 
Held,  in  a  controversy  with  another  com- 
pany over  the  occupancy  of  the  remain- 
ing portion  of  the  street,  that  the  power 
under  the  grant  was  exhausted,  not  by  delay 
in  appropriation,  but  by  the  full  exercise  of 
the  power  in  the  beginning.  Pennsylvania 
S.  V.  R.  Co.  v.  Philadelphia  &•  R.  R.  Co., 
157  Pa.  Si.  42, 27  All.  Rep.  683. 

Where  the  law  gives  authority  to  councils 
to  grant  the  right  to  lay  railroad  tracks,  and 
they  authorize  a  company  to  occupy  cer- 
tain streets  with  a  double  track  "  where  the 
width  of  the  street  shall  render  the  same 
practicable,"  the  company  will  not  be  en- 
joined from  the  use  of  tracks  laid  in  accord- 
ance with  the  permission  of  the  city,  when 
the  city  does  not  intervene  and  the  affidavits 
of  the  complainants  do  not  show  the  con- 
struction of  the  double  track  to  be  imprac- 
ticable.    Knickerbocker  Ice  Co.  v.  Philadel- 


phia <S-  R.  R.  Co.,  IS  Phila.  {Pa.)  48.— 
Following  Black  v.  Philadelphia  &  R.  R. 
Co.,  58  Pa.  St.  249. 

147.  Alteration  of  location  of 
track.— A  company,  desiring  to  make  an 
alteration  in  its  track  that  would  involve  the 
closing  of  parts  of  certain  streets,  made  a 
written  contract  with  the  city  that,  in  con- 
sideration of  no  opposition  being  made  to 
the  change,  it  would  refer  all  claims  for 
damages  to  arbitrators,  and  would,  within 
thirty  days  after  the  award,  pay  the  sums 
awarded.  The  contract  was  made  at  the 
request  and  for  the  protection  of  the  prop- 
erty holders.  The  change  of  location  was 
not  opposed,  damages  were  awarded,  and 
the  company  not  paying  the  awards,  the  city 
brought  an  action  on  the  contract.  Held:  (i) 
that  while  the  city  could  have  entered  into 
such  a  contract  for  its  own  benefit  so  far  as 
any  damage  to  the  municipality  itself  was 
concerned,  it  had  no  power  to  do  it  for  the 
benefit  of  private  parties ;  (2)  that  the  city 
had  no  power  to  act  as  trustee  for  such 
private  parties.  New  Haven  v.  New  Haven 
&*  D.  R.  Co.,  62  Conn.  252,  25  All.  Rep.  316. 

The  power  of  a  court  to  require  a  consid- 
erable and  important  lateral  change  in  the 
location  of  railroad  tracks,  in  order  to  re- 
store the  street  to  a  proper  condition  of 
usefulness,  should  not  be  exercised  unless 
that  is  reasonably  necessary.  State  ex  rel. 
V.  Minneapolis  &*  St.  L.  R.  Co.,  35  Am.  &» 
Eng.  R.  Cas,  250,  39  Minn.  219,  39  N.  IV, 
Rep.  153. 

148.  Location  on  side  of  street  — 
Bights  of  owner  on  other  side. — 
The  owner  of  property  on  one  side  of  a 
street  is  not  entitled  to  compensation  by 
reason  of  the  building  of  a  track  along  the 
other  side  of  the  street,  wholly  beyond  the 
centre  line  thereof,  where  such  track  was 
legally  built  prior  to  the  enactment  of  Wis. 
Act  of  1 889,  ch.  2  5  5 ;  and  where  the  city  makes 
no  complaint,  such  owner  cannot  claim  com- 
pensation under  that  statute  on  the  ground 
that  the  track  was  not  legally  built  because 
not  located  in  the  centre  of  the  street,  as 
required  by  a  city  ordinance.  First  Congre- 
gational Church  V.  Milwaukee  &*  L.  W.  R, 
Co.,  43  Am.  5*  Eng.  R.  Cas.  182,  77  Wis. 
158,  45  A^.  W.  Rep.  1086. 

140.  Branch  roads.— Where  the  legis< 
lature  authorizes  the  common  council  of  a 
city  to  grant  permission  to  lay  railroad  tracks 
along  or  across  the  streets,  subject  to  *he 
right  of  property  owners  to  recover  damages 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  150. 


605 


under  the  general  railroad  statute,  the  coun* 
ci^  can  authorize  a  branch  track  running  to 
an  elevator  belonging  to  private  parties,  but 
to  be  used  by  a  railroad  company  in  trans- 
ferring grain  to  and  from  the  elevator ;  but 
it  is  not  necessary  that  the  ordinance  should 
provide  for  compensation  to  the  property 
owners,  as  that  is  provided  for  in  the  gen- 
eral statute.  Clarke  v.  Blackmar,  47  A'. 
Y.  150.  —  Explained  in  Heath  v.  Des 
Moines  &  St.  L.  R.  Co.,  10  Am.  &  Eng.  R. 
Cas.  313,  61  Iowa  11. 

The  request  of  a  company  for  the  assent 
of  the  city  is  in  law  an  acceptance  of  the 
present  Constitution  of  the  state,  and  by 
virtue  of  the  acceptance  a  citizen  can  re- 
cover compensation  for  any  injury  to  his 
property  sustained  by  the  construction  of  a 
branch  road  in  a  public  street.  Duncan  v. 
Pennsylvania  R.  Co.,  13  Phila.  (Pa.)  68. 

150.  Side  tracks.  — The  presumption 
of  law  is  that  a  side  track  or  turnout  in  a 
street  is  necessary  and  proper,  and  the  bur- 
den of  proving  the  contrary  is  upon  the 
plaintiff  who  seeks  to  have  the  turnout 
abated  as  a  nuisance.  Carson  v.  Central  P. 
Co..  35  Cal.  325. 

Where  the  trustees  of  a  municipality, 
without  express  conditions,  grant  to  a  com- 
pany the  right  to  lay  a  side  track  upon 
streets,  even  if  the  principle  is  applicable 
that  the  grantee  must  signify  its  acceptance 
by  commencing  the  work  within  a  reason- 
able time  and  prosecuting  it  to  completion 
with  ordinary  diligence,  yet,  in  the  absence 
of  a  statutory  provision  or  municipal  ordi- 
nance or  order  declaring  a  forfeiture  for  a 
failure  to  complete  the  work  within  a  rea- 
sonable time,  the  right  of  the  company  to 
the  use  of  the  street  can  be  determined  only 
by  a  judgment  of  forfeiture  in  an  action 
commenced  directly  for  that  purpose,  and 
cannot  be  considered  in  an  action  of  eject- 
ment. Areata  v.  Areata  &*  M.  R.  R.  Co.,  92 
Cal.  639,  28  Pac.  Rep.  676. 

The  unauthorized  occupation  of  a  street 
in  a  city  by  a  side  track,  and  with  cars  and 
engines,  amounts  to  a  public  nuisance,  and 
if  an  abutting  owner  suffers  special  damage 
therefrom,  in  which  the  public  does  not  par- 
ticipate, he  is  entitled  to  maintain  an  action. 
And  if  the  injury,  from  its  nature,  is  not  sus- 
ceptible of  being  adequately  compensated 
by  damages  at  law,  or  is  such  that,  from  its 
continuance,  a  permanent  mischief  must 
occasion  a  constantly  recurring  grievance, 
which  cannot  be  otherwise  prevented. equity 


will  enjoin  it.  Kavanagh  v.  Mobile  &*  G. 
P.  Co.,  32  Am.  &-  Eng.  P.  Cas.  367,  78  Ga. 
271,2  s.  E.  Rep.  636. 

A  temporary  injunction  restraining  the 
construction  of  a  side  track  or  turnout  for 
a  steam  railway  in  city  streets  may  be 
granted  at  the  instance  of  a  citizen  alleging 
special  damage  to  his  real  estate  located  in 
the  vicinity  of  the  nuisance,  and  though  the 
evidence  be  conflicting  as  to  whether  he 
will  sustain  special  damage  or  not,  the  dis- 
cretion of  the  judge  in  granting  the  injunc- 
tion will  not  be  controlled  unless  abused. 
Savannah  &-  W.  P.  Co.  v.  Woodruff,  86  Ga. 
94,  \iS.E.  Pep.  156. 

The  erection  by  the  company  of  a  side 
track  upon  a  right  of  way  granted  by  land- 
owners cannot  be  complained  of  by  such 
owners,  though  such  side  track  interfered 
with  their  use  of  such  right  of  way  as  a 
street.  Indianapolis,  P.  &*  C.  R.  Co.  v.  Ray/, 
3  Am.  &*  Eng.  R.  Cas.  182,  69  /nd.  424. 

A  company  laid  a  side  track  upon  a  city 
street  within  six  feet  of  the  line  of  the  street, 
in  violation  of  a  city  ordinance,  granting  it 
the  right  of  way,  which  prohibited  the  con- 
struction of  any  track  within  eighteen  feet 
of  such  line.  Held,  that  such  track,  and  the 
use  thereof,  constituted  a  nuisance,  for  the 
maintenance  of  which  a  property  holder 
who  had  sustained  special  damages  by 
reason  thereof  might  maintain  an  action, 
the  discretion  necessary  to  be  exercised  in 
determining  the  limits  to  be  imposed  upon 
the  use  of  the  street  by  the  railroad  being 
vested  in  the  city  council.  Cain  v.  Chicago, 
P.  I.  5-  P.  P.  Co.,  54  Iowa  255,  3  N.  W.  Rep. 
736,  6  N.  W.  Pep.  268,  21  Am.  Ry.  Pep,  235. 
—  Distinguished  in  Merchants'  Union 
Barb-Wire  Co.  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  43  Am.  &  Eng.  R.  Cas.  121,  79  Iowa  613. 
Followed  in  Eslich  v.  Mason  City  &  Ft. 
D.  R.  Co.,  75  Iowa  443,  39  N.  W.  Rep.  700. 

In  such  case  the  track,  being  a  side  track, 
and  having  been  wrongfully  constructed, 
could  not  be  considered  a  permanent  struc- 
ture, the  damages  arising  from  the  mainte- 
nance of  which  would  be  original,  and  not 
continuous ;  nor,  being  a  nuisance,  could  the 
right  to  continue  such  maintenance  be  ac- 
quired by  prescription.  Cain  v.  Chicago,  P. 
I.  &*  P.  P.  Co.,  54  Iowa  255,  3  AT  W.  Rep. 
736,  6  N.  W.  Pep.  268.  21  Am.  Ry.  Rep.  235. 
—Quoting  Troy  v.  Cheshire  R.  Co.,  23  N. 
H.  83. 

Where  municipal  authorities  pass  an  or- 
dinance granting  the  right  to  lay  tracks  on 


\^\\ 


\  m 


:\    It 


fer 


606 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  151. 


■treets,  the  privilege  must  be  understood  as 
granted  and  accepted  subject  to  the  implied 
power  of  the  legislature  to  modify  the  ordi- 
nance, or  to  authorize  cities  to  forbid  the 
construction  of  tracks,  switches,  or  side 
tracks  without  compensation  to  abutting 
owners;  and  this  is  s'^  even  if  such  ordi- 
nance be  considered  as  a  contract.  Drady  v. 
Des  Moines&»  Ft.  D.  R.  Co.,  14  Am.  <S- Ettg, 
H.  Cas.  130,  57  Itma  393,  10  A^.  W.  Hep.  754. 

Where  a  municipal  charter  so  allows,  a 
railroad  may  be  constructed  on  a  street,  by 
permission  of  the  municipal  authorities  ,- 
and  neither  the  municipality  nor  the  com- 
pany will  be  responsible  for  the  inconven- 
ience and  damage  resulting  from  such  con- 
struction. But  this  rule  applies  only  to  a 
railroad  constructed  on  the  grade  of  the 
street,  where  the  only  obstruction  is  the 
passage  of  the  trains,  and  not  where  em- 
bankments have  been  made  above  the  grade, 
or  where  the  street  is  used  for  side  tracks 
or  other  structures  for  the  convenience  of 
the  road.  Tate  v.  Missouri,  K.  &•  T.  R.  Co., 
64  Mo.  149,  17  Am.  Ry.  Rep.  191.— Distin- 
guished IN  Kinealy  v.  St.  Louis,  K.  C.  & 
N.  R.  Co.,  69  Mo.  658.  Followed  in 
Swensonf.  Lexington,  69  Mo.  157.  Quoted 
IN  Cross  V.  St.  Louis,  K.  C.  &  N.  R.  Co., 
14  Am.  &  Eng.  R.  Cas.  123,  77  Mo.  318. 

151.  Switches  aud  turuoiits.— The 
owner  of  a  corner  lot,  for  a  valuable  con- 
sideration, released  to  a  company  the  part 
of  the  streets  adjoining  his  property,  to  the 
centre  line,  for  a  right  of  way,  '  to  oe  occu- 
pied by  one  track,  as  now  located."  In 
constructing  a  switch  the  company  pro- 
posed to  lay  one  rail  thereof  for  a  distance 
of  nineteen  feet  in  front  of  the  lot  and  near 
the  intersection  of  the  streets,  on  the  pro- 
jecting ends  of  the  tics  on  which  the  main 
track  was  laid,  and  fourteen  inches  from  the 
main  rail.  Suit  for  an  injunction.  Held, 
that  in  the  absence  of  a  showing  that  such 
occupation  of  the  ties  of  the  main  track 
will  impose  any  additional  burden  upon 
plaintiffs  soil,  or  will  present  any  additional 
impairment  or  interference  with  his  use  of 
the  street,  the  injunction  will  not  lie.  In- 
dianapolis &*  St.  L.  R.  Co.  V.  Calvert,  32 
Am.  &*  Eng.  R.  Cas.  170,  no  Ind.  555,  9 
West.  Rep.  238,  ii  N.  E.  Rep.  476. 

Where  a  company  has  constructed  a 
switch,  or  "  Y,"  in  a  public  street  of  a  city 
of  the  second  class  in  Kansas,  without  au- 
thority from  the  city  council,  so  close  to 
the   sidewalk  that  it  practically  prevents 


access  from  the  abutting  lots  to  the  street,the 
owner  of  the  abutting  lots  so  obstructed  can 
recover  damages.  Kansas,  N.  &*  D.  R.  Co. 
V.  McAfee,  42  Kan.  239,  21  Pac.  Rep.  1053. 

A  railroad  switch  or  turnout  laid,  with- 
out municipal  authority,  on  part  of  a  public 
street,  is  a  nuisance,  which  the  owner  of 
property  in  front  of  which  the  same  is 
used  is  entitled  to  have  abated,  as  inflict- 
ing  injury  peculiar  to  iiimsclf.  Such  owner, 
however,  has  no  standing  to  champion  the 
rights  of  others  in  front  of  whose  property 
the  switch  is  laid  with  municipal  authority, 
and  who  do  not  complain.  Bell  v.  Ed- 
wards, 37  La.  Ann.  475. 

The  legislature  may  authorize  a  company 
to  lay  its  tracks  on  a  public  street;  but 
when  it  is  so  authorized  by  legislative  grant, 
it  has  no  right  to  appropriate  and  use  a 
street  or  public  highway  for  the  laying  of 
the  tracks  of  its  trunk  line,  switches,  sid- 
ings, or  branches ;  and  the  power  must  be 
given  in  plain  words  or  by  necessary  impli- 
cation. Pennsylvania  R.  Co.'s  Appeal,  115 
Pa.  St.  514,  5  Atl.  Rep.  872.— Applied  in 
Philadelphia  v.  Philadelphia  &  R.  R.  Co., 
19  Phila.  (Pa.)  507.  Distinguished  in 
Pennsylvania  R.  Co.  v.  Diem,  39  Am.  & 
Eng.  R.  Cas.  685,  128  Pa.  St.  509. 

The  power  to  construct  a  road  includes 
the  authority  to  make  switches  and  turn- 
outs essential  to  the  use  of  the  road. 
Stroudsburg  v.  Stroudsburg  Pass.  R.  Co.,  2 
Pa.  Dist.  35. 

It  does  not  follow,  however,  that  it  may 
exclusively  occupy  a  street  or  arbitrarily 
interfere  with  public  travel.  Stroudsburg 
v.  Stroudsburg  Pass.  R.  Co.,  2  Pa.  Dist.  35. — 
Quoting  Com.  v.  Erie  &  N.  E.  R.  Co.,  27 
Pa.  St.  356;  Ehrisman  v.  East  Harrisburg 
City  Pass.  R.  Co.,  150  Pa.  St.  180. 

A  charter  provided  that  the  company 
might  construct  a  railroad  along  a  certain 
street  and  make  switches  to  it?  wharves, 
which  were  on  the  north  side  of  the  street. 
By  an  ordinance  the  city  provided  that  the 
wharf  company  could  exercise  all  the  priv- 
ileges conferred  upon  it  by  its  charter,  pro- 
vided it  did  not  obstruct  the  free  passage  of 
the  south  side  of  the  street.  Under  such 
ordinance  the  wharf  con^  pany  had  no  right 
to  construct  switches  south  of  its  main 
track  on  said  street.  Galveston  Wharf  Co. 
V.  Gulf,  C.  &•  S.  F.  R.  Co.,  81  Tex.  iax.  f 
S.  W.  Rep.  57. 

A  wharf  company  does  not  acquire  a 
vested  right  by  laying  switches  and  turn- 


ra 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  162,  163.        607 


outs  not  authorized  by  its  charter,  but  laid 
without  objection.  The  court  may  author- 
ize the  same  to  be  removed  at  the  request 
of  a  railroad  company  having  a  right  to  use 
the  street  for  the  same  purpose.  Galvtston 
Wharf  Co.  v.  Gulf,  C.  6-  S.  F.  Ji.  Co.,  8i 
Tex.  494,  178.  W.  Rtp.  $7. 

Damages  can  be  recovered  for  injuries 
sustained  from  the  existence  and  operation 
of  railroad  switches  and  coal  bins  in  close 
proximity  to  one's  lot,  although  they  do  not 
occupy  the  street  upon  which  the  lot  abuts 
or  disturb  ingress  to  and  egress  from  it. 
Ft.  Worth  6-  R.  G.  R.  Co.  v.  Downie,  82 
Ttx.  383,  IT  S.  W.  Rep.  620. 

4.  Change  of  Grade.*    Culver ti. 

162.  Validity  and  effect  of  statutes 
changing  grade. —  N.  J.  Act  of  1874 
(Rev.  p.  944)  conferring  upon  cities  the 
power  to  change  grades,  whereby  railroads 
entering  said  cities  may  locate,  change,  or 
elevate  their  tracks,  is  not  limited  to  rail- 
roads in  existence  at  the  time  of  the  pas- 
sage of  the  act.  State  {Hudson  County, 
Pros.)  V.  Mayor,  etc.,  of  Bayonne,  54  N.J. 
L.  293,  23  Atl.  Rep.  648. 

A  change  of  grade  made  under  the  pro- 
visions of  the  above  statute  must  be  con- 
fined to  such  limits  as  are  necessary  for  the 
accomplishment  of  its  purpose.  An  ordi- 
nance which  extends  the  line  of  such  change 
clearly  beyond  what  is  required  by  the  al- 
teration of  grade  at  the  point  of  railroad 
crossing  is  illegal.  State  (Hudson  County, 
Pros.)  V.  Mayor,  etc.,  of  Bayonne,  54  N.  J. 
L.  293,  23  Att.  Rep.  648. 

In  1890  congress  passed  an  act  requiring 
a  railroad  bridge  across  a  river  in  New  York 
city  to  be  elevated.  In  1892  the  state  leg- 
islature passed  an  act  (ch.  339)  to  enable  the 
railroad  company  to  comply  with  the  act  of 
congress,  which  changed  the  grade  of  the 
street,  and  gave  the  company  exclusive  con- 
trol of  the  improvement,  but  required  the 
city  to  bear  one  half  the  cost.  Held,  that 
the  act  of  1892  did  not  provide  for  a  con- 
tribution by  the  city  to  the  private  use  of  a 
corporation,  in  violation  of  N.  Y.  Const,  art. 
8,  §  II,  but  for  payment  for  the  benefit  re- 
ceived by  the  city  from  raising  the  grade  of 
the  railroad,  and  thus  returning  a  portion 
of  the  avenue  to  public  use,  and  permitting 
free  and  unobstructed  passage  on  intersect- 

*  Changes  of  grades  in  city  streets,  see  note, 
14  Am.  &  Emg.  R.  Cas.  130. 


ing  streets  from  one  side  of  the  city  to  the 
other.  Tocci  v.  Mayor,  etc.,  of  N.  Y.,  25 
A'.  Y.  Supp.  1089,  73  Hun  46. 

The  elevation  of  the  tracks,  the  construc- 
tion of  the  bridge,  and  the  improving  of 
the  street  for  city  use  are  inseparable,  and 
are  all  parts  of  the  same  work,  to  which  the 
city  contributes  in  consideration  of  the 
surrender  of  the  company's  rights  to  public 
streets  and  avenues ;  and  whether  the  legis- 
lature required  the  city  to  pay  a  considera- 
tion which  was  too  high  cannot  be  con- 
sidered by  the  courts.  Tocci  v.  Mayor,  etc., 
of  N.  Y.,  2$  N.  Y.  Supp.  1089,  73  Hun  46. 

In  such  case  the  company  abandoned  the 
use  of  a  street  on  acquiring  the  right  to 
elevate  its  track.  Held,  that  the  land  in 
the  street  reverted  to  the  city,  for  street 
purposes,  without  a  formal  release  from  the 
company.  Tocci  v.  Mayor,  etc.,  of  N.  Y., 
2$  N.  Y.  Supp.  1089,  73  Hun  46. 

163.  Power  of  court,  or  county 
commissioners,  to  order  change  of 
grade.  —  A  taxable  inhabitant  of  a  town, 
owning  land  abutting  upon  a  highway  there- 
in, which  crosses  a  railroad  by  a  bridge,  in 
which  and  its  approaches  the  county  com- 
missioners have  ordered  certain  alterations 
to  be  made,  is  not  "a  party  aggrieved" 
within  Mass.  St.  1882,  ch.  135,  $  i,  giving  to 
such  party  an  appeal  to  the  board  of  rail- 
road commissioners,  although  he  appeared 
before  the  county  commissioners  and  was 
heard.  Chandler  v.  Railroad  Com'rs,  141 
Mass.  208,  5  A'^,  E.  Rep.  509.— Reviewing 
Brainard  v.  Connecticut  River  R.  Co.,  7 
Cush.  (Mass.)  506. 

Where  a  change  in  the  highway  at  a 
grade  crossing  has  been  ordered  by  the 
county  commissioners,  private  owners  of 
land  the  approach  to  which,  in  a  certain 
direction,  will  be  cut  ofi  by  the  proposed 
change,  cannot  maintain  a  petition  for 
certiorari  \.o  quash  the  proceedings  of  the 
commissioners,  on  the  general  principle 
that  one  cannot  maintain  a  private  action 
for  loss  or  damage  which  he  suffers  in  com- 
mon with  the  rest  of  the  community.  Davis 
V.  Hampshire  County  Com'rs,  55  Am.  &* 
Eng.  R.  Cas.  52,  153  Mass.  218,  26  N.  E. 
Rep.  848. 

In  enforcing  against  a  company  the  duty 
imposed  by  its  charter  to  construct,  when 
necessary,  on  a  street  or  highway  crossing 
its  tracks,  a  bridge  or  viaduct,  with  the  ap- 
proaches, the  court  has  power  to  establish 
the  grade  therefor,  though  that  involves  a 


PI 


III 


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m  : 


K? 


608 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  104-150. 


change  in  tlie  grade  previously  established 
for  the  street  or  highway.  Parker  v.  TruiS' 
daU,  54  Minn.  241,  55  A';  W,  Hep.  901. 

154.  Power  of  city  or  town  to 
change  grade.  —  City  authorities  have 
power  to  regrade  a  street  for  any  public 
purpose,  without  incurring  any  responsi- 
bility to  holders  of  lots  adjacent  to  tlie 
street,  though  the  street  may  be  raised 
several  feet  above  the  level  of  the  lot.  So 
the  city  authorities  may  authorize  the 
passage  of  a  railroad  through  a  city,  as 
consistent  with  the  purposes  of  public 
streets,  and  it  is  not  a  purpresture.  Wolfe 
v.  Covington  &*  L.  R.  Co.,  15  B,  Afon. 
(Ky.)  404.— Reviewed  in  Newport  &  C. 
Bridge  Co.  v.  Foote,  9  Bush  (Ky.)  264. 

And  such  authorities  may  change  the 
grade  of  a  street  to  suit  the  grade  of  a  rail- 
road coming  into  the  city,  or  may  authorize 
tiie  railroad  company  to  do  so— not,  perhaps, 
throwing  the  expense  of  the  grading  upon 
the  adjacent  lot  owners.  Wolfe  v.  Coving- 
ton &*  L.  a:  Co.,  15  B.  Mon.  {Ky.)  404. 

Defendant  company  claimed  thut  under 
proceedmgs  of  the  city  council  of  a  certain 
city  said  city  had  authorized  it  to  excavate 
a  certain  street  to  a  previously  established 
grade,  and  to  use  a  portion  of  the  same  for 
its  roadbed,  and  to  use  the  materials  exca- 
vated for  the  construction  thereof,  all  in 
consideration  of  certam  undertakings  upon 
defendant's  part.  The  proceedings  referred 
to  disclosed  no  agreement  to  refrain  from 
changing  the  grade.  Held:  (i)  that  it  was 
competent  for  the  council  to  change  said 
grade  so  as  to  deprive  defendant  of  the 
right  to  excavate  according  to  the  same  ;  (2) 
that  this  change  was  effected  by  a  resolu- 
tion of  the  council  authorizing  the  city 
surveyor  to  establish  stakes  for  a  temporary 
grade  of  said  street,  etc.,  and  by  the  action 
of  the  surveyor  in  obedience  to  such 
resolution.  Kant  v.  St.  Paul,  S.  6-  T.  F. 
R.  Co.,  22  Minn.  118. 

It  seems  that  the  primary  object  of  power 
to  alter  the  grade  of  streets,  conferred  upon 
common  councils  in  municipal  charters,  is 
to  enable  the  municipal  authorities  to 
render  a  street  more  safe  and  convenient 
for  public  travel,  to  afford  drainage,  and  to 
adapt  the  street  more  perfectly  for  the  pur- 
poses of  a  public  way.  Reining  v.  New 
York.  L.  &*  W.  R.  Co..  50  Am.  &*  Eng.  R. 
Cos.  205,  128  A^.  K.  157,  28  N.  E.  Rep.  640, 
40  A^.  Y.  S.  R.  401 ;  affirming  35  A^.  Y.  S. 
R.  73'.  «3  A^-  y-  Supp.  238. 


A  municipality  cannot,  under  the  guiie 
of  exercising  such  power,  appropriate  a  part 
of  a  street  practically  to  the  exclusive  use  of 
a  railroad  company  and  cut  ofl  abutting 
owners,  without  compensation,  from  using 
any  part  of  it  in  the  accustomed  way. 
Reining  v.  New  York,  L.  *«  W.  R.  Co.,  50 
Am.  &*  Eng.  R.  Cas.  205,  128  A'.  Y.  157,  28 
N.  E.  Rep.  640,  40  A'.  Y.  S.  R.  401  ;  affirm- 
iftg  35  A^.  Y.  S.  R.  73>.  >3  A^-  Y-  Supp.  238. 
—Explained  in  Rauenstein  v.  New  York, 
L.A  W.  R.Co.,  136N.  Y.  528. 

A  municipal  corporation  has  no  right  to 
make  such  a  change  in  a  street  grade  as 
will  effect  a  destruction  of  the  franchise 
theretofore  granted  to  a  company  to  lay 
its  tracks  therein.  Seattle  v.  Columbia  &* 
P.  S.  R.  Co.,  6  WasA.  379,  33  Pac.  Rep. 
1048. 

It  may  be  granted  that  town  supervisors 
have  a  right  to  enter  upon  a  highway  and 
change  the  grade  in  making  proper  improve- 
ments thereon ;  but  they  have  no  right  to 
extend  an  embankment  or  deposit  earth 
outside  the  limits  of  the  highway,  or  to 
change  the  grade  merely  for  the  purpose 
of  allowing  a  railroad  to  be  constructed 
thereon.  Buchner  v.  Chicago,  M.  S*  N.  W. 
R.  Co..  14  Am.  6*  Eng.  R.  Cas.  447, 60  Wis. 
264,  19  A'.  «'.  Rep.  56. 

156.  Change  of  grade  by  city  at 
request  of  abutting  owners.— Before 
a  street  has  been  actually  worked  to  grade, 
the  grade  may  be  altered  by  the  common 
council  upon  the  application,  in  writing,  of 
the  owners  of  a  majority  of  the  property 
per  lineal  foot  along  the  line  of  said  pro- 
posed change  of  grade.  State  (Hudson 
County,  Pros.)  v.  Mayor,  etc.of  Bayonne,  54 
A^.  /.  L.  293.  23  Atl.  Rep.  648. 

156.  Ordinance  requiring  change 
of  grade. — A  city  granted  to  a  company 
the  right  to  locate  and  construct  its  road 
upon  the  streets,  on  condition  that  where  the 
grade  of  the  railroad  should  be  higher  than 
the  street,  the  company  should  "fill  up  each 
side  to  tlieir  said  road  to  form  a  convenient 
passage  over  the  same."  The  company  ele- 
vated its  track  above  the  level  of  the  street, 
and  the  city  filled  the  remainder  of  the 
street  to  a  level  with  the  railroad,  and  sued 
the  company  for  the  cost  thereof.  Held, 
that  it  was  no  defense  that  the  street  at  the 
time  of  the  construction  of  the  railroad  was 
unimproved,  and  had  never  been  graded; 
or  that  after  the  building  of  the  railroad  the 
street  was  in  as  good  condition  as  it  was 


STREETS   AND   HIGHWAYS  (RAILWAYS   IN),  157. 


609 


before.  Indianapolis  &*  C.  R.  Co,  v.  Law- 
renceburg,  34  Ind.  304. 

In  construing  an  ordinance  requiring  cer- 
tain street  grades  to  be  raised  so  as  to  allow 
a  company  to  construct  tunnels  and  lay  its 
tracks  therein,  the  location  of  the  railroad 
at  the  time,  its  conseq<  it  inconvenience 
to  the  adjoining  proprietor,  and  the  topogra- 
phy of  the  ground  thereabouts  must  be 
kept  in  view.  Northern  C,  A'.  Co.  v.  Mayor, 
tic,  of  Baltimort,  46  Md,  425,  18  Am.  Ky. 
Rep.  461. 

An  ordinance  requiring  the  street  grades 
to  be  raised  for  the  purpose  of  allowing  a 
company  to  construct  tunnels  and  lay  tracks 
therein  gives  it  the  right  to  lay  tracks  with- 
out tuiiiiuling  upon  such  streets  as  have 
not  been  opened,  and  which  exist  only  upon 
the  city  plat.  Northern  C.  Ji.  Co.  v.  Mayor, 
etc.,  of  Baltimore,  46  Md.  425,  18  Am.  Ky. 
Rep.  461. 

157.  Changing  grade  —  Company 
liable.*— An  action  lies  in  favor  of  the 
owner  of|property  abutting  on  a  public  street 
to  recover  damages  for  injuries  caused  by 
changing  the  grade  of  the  streets  for  rail- 
road purposes,  although  he  sold  to  the 
company  a  right  of  way  through  his  prop- 
erty, unless  the  terms  of  the  sale  or  the 
attendant  circumstances  authorize  the  in- 
ference that  the  resulting  damage  was  in- 
cluded in  the  compensation  paid ;  and  the 
action  lies  against  the  company  and  the 
construction  company  who  built  the  road, 
although  the  work  was  done  by  a  subcon- 
tractor. Alabama  Midland  R.  Co.  v.  Will- 
iams, 92  Ala.  277,  9  So.  Rep.  203. 

A  company  has  no  right,  in  constructing 
its  road,  to  change  the  location  or  grade  of 
a  public  way  so  as  to  deprive  the  adjoining 
owner  of  his  right  to  enjoy  his  premises, 
by  preventing  ingress  or  egress,  and  if  it 
does  so,  it  must  answer  in  damages  therefor. 
Louisville  &*  N.  R.   Co.  v.  Finley,  86  Ky. 

294.  5  -S"-  ^y-  Rep'  753- 

A  city  ordinance  authorized  the  con- 
struction of  a  railroad  on  either  of  two 
streets,  through  the  corporate  limits,  under 
suitable  restrictions  as  to  grade  to  be  regu- 
lated thereafter.  Held,  that  the  ordinance 
authorized  the  company,  so  far  as  the  city 
had  power  to  do  so,  to  run  the  road  along 
the  street,  but  not  to  obstruct  it  to  the  in- 
jury 01  abutting  property  owners;  and  that 

*  Right  to  change  grade  of  street  after  a  rail- 
road track  has  been  laid,  see  note,  19  L.  R.  A,  510. 
7  D.  R.  D.— 39 


the  road  was  to  be  constructed  on  the  grade 
of  the  street  substantially  as  it  then  existed, 
unless  an  alteration  was  made  by  proper 
municipal  regulations.  Tate  v.  Ohio  &>  M, 
R.  Co.,  7  Ind.  479.— Followed  in  Evansville 
&  C.  R.  Co.  V.  Dick,  9  Ind,  433. 

A  company,  by  reason  of  acting  under 
statutory  command  in  changing  the  grade 
of  a  street,  does  not  become  clothed  with 
the  rights  of  the  public,  as  exercising  the 
functions  of  the  municipal  officers  who 
control  the  streets,  so  as  to  be  relieved 
from  liability  to  property  owners  for  dam- 
ages to  tlieir  land.  Egbert  v.  Lake  Shon 
«5-  M.  S.  R.  Co.,  56  Am.  &*  Eng.  R.  Cas.  648, 
6  Ind.  App.  350,  33  N.  E.  Rep.  659. 

Where  an  ordinance  recites  that  a  right  of 
way  is  granted  to  a  company,  with  the 
right  to  construct  its  road  over  and  across 
certain  streets  "  on  the  grade  of  the  city  or 
such  gr.idc  as  may  be  agreed  upon,"  the 
company  is  limited  to  the  grade  estab- 
lished by  the  city,  unless  it  be  shown  that 
some  otiier  grade  has  been  agreed  upon. 
Slat  ten  v.  Des  Moines  Valley  R.  Co.,  29 
lo^va  148. 

Where  a  change  of  grade  in  a  city  street 
is  occasioned  by  the  laying  of  a  track  thereon, 
the  right  of  an  abutting  property  owner  to 
recover  damages  sustained  because  of  such 
occupation  of  the  street  is  not  dependent 
upon  improvements  which  have  been  made 
according  to  the  previously  authorized 
grade.  Nicks  v.  Chicago,  St.  P. &^  A'.  C.  R. 
Co.,  84  lova  '7   50  N.  W.  Rep.  222. 

In  order  to  entitle  abutters  on  a  highway 
which  has  been  raised  or  lowered  by  a  rail- 
road corporation,  under  Mass.  Rev.  St.  ch. 
39.  §§  67,  68,  to  recover  damages  therefor, 
it  is  not  necessary  that  the  selectmen  of  the 
town  should  have  either  authorized  or  di- 
rected such  alteration  to  be  made.  Parker 
V.  Boston  <S-»  M.  R.  Co.,  3  Cush.  {Mass.)  107. 

The  remedy  for  an  injury  occasioned  by 
the  alteration  of  a  highway  for  the  purpose 
of  raising  or  lowering  the  ^ame,  by  a  rail- 
road corporation,  is  not  by  an  action  against 
the  town  under  Mass.  Rev.  St.  ch.  25,  §  3, 
but  by  a  proceeding  against  the  corporation 
for  damages,  under  Rev.  St.  ch.  39,  §  56. 
Parker  v.  Boston  &*  M.  R.  Co.,  3  Cush. 
{Mass.)  107. 

Although  a  company  has  lawful  authority 
to  lay  its  track  along  a  street,  it  is  bound 
to  locate  it  in  conformity  to  the  grade  so  as 
not  to  interfere  with  the  concurrent  use  of 
the  street  by  the  public.    Smith  v.  Kansas 


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610 


STREETS  AND  HICillWAYS   (RAILWAYS   IN),  158. 


' 

h 

i>. 

■'.1 

i\' 

li 

t|,:,      .; 

it 

O//.  St.  J.  &*  C.  D,  R.  Co.,  98  Mo.  30,  II  S. 
IV.  Rip.  a  $9. 

A  railroad  corporation  having  authority, 
when  public  necessity  requires,  to  change 
the  grade  of  the  streets  crossing  its  tracks 
will  not  be  permitted  to  exercise  its  power 
in  that  respect  except  upon  tlie  same  terms 
as  those  on  which  the  municipality  within 
which  the  streets  are  located  may  exercise 
nice  power ;  that  is,  on  the  payment  of  dam- 
ages to  those  injured  by  the  change.  Mayor, 
tte.,  0/ Jersey  City  v.  Central  R.  Co.,  23  Am. 
*-  Eng.  R.  Cas.  138,  40  N./.  Eq,  417, 2  Atl. 
Rep.  363. 

Though  a  company  be  authorized  to 
change  the  grade  of  a  street  so  as  to  conform 
to  a  bridge  over  its  track,  yet  it  will  be 
liable  to  individuals  that  may  be  damaged 
thereby.  Mayor,  etc.,  of  Jersey  City  v.  Cen- 
tral R.  Co.,  23  Am.  &*  Eng.  R.  Cas.  138,  40 
A'.  /.  Eg.  417,  2  Atl.  Rep.  262.— Quoting 
Warren  R.  Co.  v.  State,  29  N.  J.  L.  353. 

Where  a  city  consents  to  the  construction 
of  railroad  tracks  in  the  city  "  so  as  to  con- 
form to  the  grade  of  the  streets  which  they 
cross  and  run  through,  as  laid  down  in  the 
grade  maps  of  the  city,"  tiiis  applies  to  all 
•treela  which  may  be  used,  whether  then 
opened  or  not,  and  when  a  street  is  opened 
the  company  must  conform  to  the  estab- 
lished grade.  Long  Island  R.  Co.  v.  Brook- 
lyn, 39  A^.  Y.  5.  /?.  381,  8  A'.  Y.  Supp.  805,  55 
Hun  610,  5  Silv.  Sup.  Ct.  475. 

It  is  permitted  to  appropriate  so  much  of 
the  highway  as  maybe  necessary  or  conven- 
ient for  such  purpose,  but  the  use  thereof 
by  the  public  is  not  thereby  restricted.  The 
railway  corporation  is  allowed  to  build  and 
operate  its  road  upon  the  highway,  but  it 
has  no  authority  to  change  the  grade 
thereof,  or  to  use  it  to  the  exclusion  of  the 
public,  or  in  such  a  manner  as  will  infringe 
upon  the  rights  to  its  use  of  adjoining  prop- 
erty owners.  McQuaid  v.  Portland  &•  V. 
R.  Co.,  40  Am.  &>  Eng.  R.  Cas.  308,  18  Oreg. 
337,'  33  Pac.  Rep.  899. 

As  between  an  abutting  lot  owner  and  a 
company  laying  its  track  on  the  street,  the 
street  must  be  considered  private  property, 
and  the  company  has  no  right  to  change  the 
grade  simply  because  it  is  a  public  street,  even 
by  consent  of  the  city,  if  it  has  the  effect  of 
injuring  the  property  owners.  Buchner  v. 
Chicago,  M.  &«  A'^.  W.  R.  Co.,  14  Am.  &•  Eng. 
R.  Cas.  447,  60  Wis.  264,  19  A^.   W.  Rep.  56. 

158.  company  not  liable.— A 

statVile  required  the  common  council  of  a 


city,  when  it  should  alter  the  grade  of  ait> 
street,  to  appoint  three  persons  to  assess 
the  damages  to  which  any  lot  owners  might 
be  subjected  by  reason  of  such  alteration  ; 
and  provision  was  made  for  the  payment  of 
such  damages.  The  grade  of  a  street  was 
altered  by  a  railroad  company  with  the  con- 
sent of  the  council,  the  damages  were  as- 
sessed, and  the  assessment  was  confirmed. 
Held,  that  it  was  a  legal  presumption  that 
the  owners  of  lots  affected  by  tlic  alteration 
had  been  satisfied  for  all  the  injuries  sus- 
tained in  consequence  of  the  alteration  of 
the  grade ;  and  tiiat  an  action  against  the 
company  could  not  be  sustained.  Chap- 
man  v.  Albany  6*  5.  R.  Co.,  10  Barb.  {F 
Y.)  360. 

Where  a  railroad  is  constructed  on  a  h 
way,  an  adjoining  property  owner  cai... 
recover  damages  against  the  company  for 
changing  the  grade  if  no  change  was  made 
other  than  what  was  necessary  to  restore 
the  highway  to  its  former  usefulness.  Conk- 
lin  V.  New  York,  O.  &»  W.  R.  Co.,  26  Am. 
&*  Eng.  R.  Cas.  365,  102  A'.  Y.  107,  6  N.  E. 
Rep.  663,  I  A".  Y.  S.  R.  677  ;  affirming  33 
Hun  466,  w^w.— Applying  Uline  v.  New 
York  C.  &  H.  R.  R.  Co.,  loi  N.  Y.  98. 
Overruling  Fletcher  v.  Auburn  &  S.  R. 
Co.,  25  Wend.  462.— Adhered  to  in  Rau- 
en stein  v.  New  York,  L.  &  W.  R.  Co.,  136 
N.  Y.  528. 

Where  a  company  in  changing  the  grade 
of  a  street  performs  a  duty  imposed  by 
public  law  and  prescribed  by  municipal  ordi- 
nance, it  is  not  liable  for  damages  to  abut- 
ting owners  resulting  from  the  necessary 
changes,  individual  interests  being  subordi- 
nate to  the  requirements  of  the  public  the 
same  as  though  the  city  authorities  had 
done  the  work  themselves.  (O'Brien  and 
Maynard,  JJ.,  dissenting.)  Rauenstein  v. 
New  York,  L.  &»  W.  R.  Co.,  56  Am.  «5- 
Eng.  R.  Cas.  635,  136  A^.  Y.  528,  32  A'.  E. 
Rep.  1047. 

By  N.  Y.  Act  of  1880,  ch.  147,  defendant 
company  was  authorized  to  construct  an 
elevated  track  through  a  certain  city,  the 
statute  providing  for  a  commission  with 
power  to  discontinue  porti&ns  of  streets,  or 
to  make  alterations  in  the  width  or  grade  of 
the  same.  Such  commissioners  entered 
into  an  agreement  whereby  the  company 
was  to  be  liable  to  the  city  for  any  damages 
to  which  it  might  be  subjected  at  the  suit 
of  individuals  by  reason  of  such  changes. 
The  city  was  authorized  by  its  charter  to 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  15U,  100.        611 


change  the  grade  of  streets,  but  no  pro- 
vision was  made  fur  dainacies  to  property 
owners.  Htld,  that  an  individual  property 
owner  could  not  maintain  an  iction  against 
the  company  for  damages  i  ising  from  a 
change  in  the  grade  of  u  etrcti,  or  for  clos- 
ing it  temporarily  while  the  work  was  being 
done,  where  there  was  no  proot  of  negli> 
gence  or  want  of  skill  in  the  manner  of 
doing  it.  Wilson  v.  New  York  C.  &*  H.  R. 
K,  Co.,  a  A'.  Y.  Supp.  6s,  39  Hun  651,  mtm. 

Where  a  company  is  authorized  to  occupy 
a  street  on  condition  that  it  grade  and  oth- 
erwise improve  it,  and  a  plan  is  furnished 
by  the  city  engineer,  and  the  work  is  done 
in  strict  accordance  therewith,  the  company 
is  not  liable  for  injuries  resulting  to  an 
abutting  owner  where  there  is  nothing  to 
show  that  thu  work  was  done  in  a  negligent 
manner.  Iron  Mountain  R.  Co.  v.  Bing' 
ham,  38  Am.  Sr*  Eng,  R.  Cas.  444,  87  Tenn. 
522,  4  L.  R.  A.  622,  1 1  5.  W.  Rep.  705. 

And  where  such  work  is  done  under  a 
contract  with  the  city  council,  it  will  be 
presumed  that  the  grade  furnished  the  com- 
pany by  the  city  engineer  had  been  adopted 
by  the  council.  Iron  Mountain  R.  Co.  v. 
Bingham,  38  Am.  &*  Eng.  R.  Cas.  444,  87 
Tenn.  522,  4  L.  R.  A.  622, 1 1  S.  W.  Rep.  705. 

150.  Liability  of  municiimlity 
authorising  change  of  grade.— The 
liability  of  a  city  to  property  owners  for 
allowing  a  railroad  track  to  be  laid  in  a 
street,  and  for  raising  the  grade  of  the 
street,  depends  upon  whether  the  city  coun- 
cil exceeded  its  authority  in  doing  so.  The 
city  is  not  liable  for  damages  resulting 
from  the  exercise  of  its  lawful  authority. 
Murphy  v.  .Chicago,  29  ///.  279.— Distin- 
guished IN  St.  Louis,  V.  &  T.  H.  R.  Co.  v, 
Capps,  67  III.  607.  Followed  in  Chicago 
D.  &  C.  Co.  V.  Garrity,  115  III.  155.  Mod- 
ified IN  Pekin  v.  Brereton,  67  111.  477. 
Reviewed  in  Olney  v.  Wharf,  115  III.  519. 

Where  a  city  has  established  no  grade  of 
a  street  upon  which  plaintifl  has  a  lot,  and 
a  company,  with  the  permission  of  the  city, 
fills  up  the  space  between  an  original  em- 
bankment and  the  lot,  so  as  to  prevent 
access  thereto,  he  is  entitled  to  recover 
damages  against  the  city.  Pekin  v.  Winkel, 
77111.16. 

A  company  being  authorized  by  law  to 
construct  and  operate  its  road  through  an 
incorporated  town  which  held  the  fee  to  its 
streets,  the  town  authorities  granted  the 
privilege  of.  constructing  the  road  along  the 


centre  of  a  street,  upon  condition  that  the 
company  grade  the  street  and  plank  its  track, 
so  as  to  secure,  ns  fur  as  possible,  to  the 
public  the  free  and  uninterrupted  use  of  the 
street ;  but  the  road  was  so  constructed  that 
an  abutting  lot  owner  was  damaged  by  the 
grade  of  the  street  being  raised,  and  by  the 
obstruction  of  the  view  from  his  p  "mises. 
Held,  that  the  town,  having  lawfully  granted 
the  right  uf  way,  and  being  guilty  of  no 
negligence  or  wrongful  act,  was  not  liable 
to  the  lot  owner.  Oltiey  v.  Wharf,  115  ///. 
519,  %N.E.Rep.  366. 

A  city  authorized  the  construction  of  a 
railway  over  a  street,  but  by  an  embankment 
of  the  railroad,  at  a  point  not  upon  the 
street,  but  upon  private  property,  water  was 
caused  to  flow  upon  plaintilT's  premises  to 
his  damage.  Held,  that  the  city  was  r.>r. 
liable.  Callahan  v.  Des  Moines, 63  Iowa  705, 
17  A^.  W.  Rep.  MO. 

Where  a  city  stands  by  and  permits  a 
company  to  erect  a  nuisance  on  a  highway, 
outside  of  the  license  granted  to  it  by  the 
city,  by  raising  its  track,  whereby  the  natural 
flow  of  water  is  turned  onto  adjoining  prop- 
erty, the  city  is  liable  for  the  injury  caused 
thereby.  Torpey  v.  Independence,  24  Mo. 
App.  288.— Reviewing  Indianapolis,  B.  & 
W.  R.  Co.  V.  Smith,  52  Ind.  428 ;  Coj?  v, 
Louisville,  N.  A.  &  C.  R.  Co.,  48  Ind.  178; 
Stack  V.  East  St.  Louis,  85  III.  377. 

A  railroad  was  constructed  through  a 
village  before  it  was  incorporated.  After 
the  village  was  incorporated,  the  company 
applied  for  permission  to  lay  two  additional 
tracks  and  to  change  the  grade  of  an  ave- 
nue so  as  to  carry  it  under  the  tracks,  and 
the  village  authorities  granted  their  consent 
but  took  no  part  in  making  or  superintend- 
ing the  change.  Held,  that  an  adjoining 
property  owner  was  entitled  to  damages 
against  the  village  the  same  as  if  it  had 
made  the  change  itself.  In  re  Stack,  Y>Hun 
38s,  21  A'.  Y.  S.  R.  953,  3  N.  Y.  Supp.  231. 
— Following  Uline  v.  New  York  C.  &  H. 
R.  R.  Co..  loi  N.  Y.  98. 

100.  Raising  grade— Company  lia- 
ble.* —  A  railroad  corporation  which  pro- 
ceeds under  Mass.  Rev.  St.  ch.  39,  $67,  after 
notice  to  the  mayor  and  aldermen  of  a  city, 

'Liability  of  company  where  track  is  laid 
above  or  at  grade,  see  note,  14  Am.  &  Eng.  R. 
Cas.  139. 

Liability  of  company  for  raising  grade  of 
street.  Injury  to  abutting  owner,  see  36  Aft,  j(, 
Eng.  R.  Cas.  170,  aistr. 


m 

1:4] 

m 


612 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  161. 


it 


and  on  terms  agreed  upon  between  the  cor- 
poration and  the  mayor  and  aldermen,  to 
raise  a  street,  that  its  railroad  may  pass  un- 
der the  same,  acts  by  virtue  of  its  independ- 
ent corporate  power,  and  not  as  the  agent 
or  servant  of  tnecity ;  and  such  corporation 
is  primarily  liable  to  third  parties  for  dam- 
ages thereby  caused  to  their  estate.  Gar- 
diner  v.  Boston  &*  IV.  R.  Corp.,  9  Cusk. 
{Mass.)  I. 

The  power  of  a  railroad  company  "to 
raise  or  lower  any  highway  for  the  purpose 
of  having  its  railway  cross  over  or  under 
the  same  "  does  not  extend  to  raising  or 
lowering  the  grade  of  a  street  of  a  city  so 
as  to  make  a  crossing  at  the  grade  of  the 
railroad  track ;  and  where  the  street  in  front 
of  1  lot  is  raised  four  ieet  above  the  grade, 
the  owner  will  be  entitled  to  recover  dam- 
ages caused  thereby.  Gates  v.  Cht'-ago,  St. 
P.  6-  K.  C.  R.  Co.,  50  Am.  &•  Ettg.  R.  Cas. 
164,  82  /oTva  518,  48  iV.  IV.  Rep.  1040. 

A  company  obtained  permission  from  a 
municipal  corporation  to  run  its  line  along 
a  certain  street,  agreeing  not  to  raise  the 
grade  to  more  than  a  certain  height.  It 
built  the  line  and  raised  the  grade  more 
than  the  specified  height,  the  corporation 
not  consenting,  but  not  taking  any  steps  to 
prevent  it.  Held,  that  as  against  plaintiffs, 
who  were  owners  of  property  injuriously 
affected  thereby,  the  company  was  liable, 
but  as  against  the  corporation  plaintifTs 
were  restricted  to  the  remedy  by  arbitration ; 
and  that  in  any  event  the  cause  of  action 
was  not  of  such  a  nature  as  to  entitle  the 
corporation  to  bring  in  the  company  under 
Ont.  Rev.  St.  c.  184,  §  531  (4).  BaskervilU 
V.  Ottawa,  20  Ont.  App.  108. 

101. coinpauy    not     liable.  — 

Municipal  authorities  authorized  defendant 
company  to  make  an  approach  to  a  bridge 
by  filling  the  middle  portion  of  a  street. 
The  company  erected  stone  walls  on  each 
side  of  the  fill,  surmounted  by  iron  railings, 
and  left  sufficient  space  on  eithe  side  to 
permit  carriages  to  pass  two  abreast,  and 
did  nothing  else  to  obstruct  the  passage 
to  or  from  adjoining  lots,  and  did  not 
interfere  with  the  light  or  air  of  abutting 
owners.  Held,  that  such  owners  could 
not  recover  damages.  Newport  &*  C. 
Brii^t  Co.  V.  Foote,  9  Bush  {Ky.)  264.— 
Distinguishing  Louisville  &  N.  R.  Co. 
V.  Ho<jge,  6  Bush  14.'.  Following  Lex- 
ington &  O.  R.  Co.  V.  Applegate,  8  Dana 
(Ky.)  289,    Reviewing  Wolfe  v.  Covington 


&  L.  R.  Co.,  15  B.  Mon.  (Ky.)404;  Louis- 
ville &  F.  R.  Co.  V.  Brown,  17  B.  Mon. 
763.— Followed  but  distinguished  in 
Fulton  V.  Short  R.  R.  Transfer  Co.,  85  Ky. 
640,  7  Am.  St.  Rep.  619,  4  S.  W.  Rep.  332. 
Quoted  in  Elizabethtown,  L.  &  B.  S.  R. 
Co.  V.  Combs,  10  Bush  382. 

In  the  absence  of  any  ordinance  fixing  the 
grade,  where  the  evidence  shows  that  the 
existing  condition  of  a  street  is  temporary, 
the  location  of  the  track  therein  a  little 
above  the  natural  surface,  rendered  appar- 
ently necessary  to  conform  to  other  pans  of 
the  railroad,  should  not  be  regarded  as  evi- 
dencing an  intent  to  establish  permanently 
a  nuisance  affecting  the  adjacent  property. 
Smith  V.  Kansas  City,  St.  J.  &•  C.  B.  R.  Co., 
98  Mo.  20,  1 1  5.  IV.  Rep,  259. 

If  a  railroad  is  built  upon  a  highway 
without  acquiring  the  private  rights  or 
property  existing  therein,  the  company  is 
liable  for  damages  resulting  to  abutting 
property  owners,  and  as  to  them  the  road 
is  unlawful  and  a  continuing  nuisance.  But 
where  the  railroad  is  lawfully  constructed, 
with  proper  care  and  skill,  it  is  not  a  nui- 
sance, and  the  company  is  not  liable  for  such 
damages  as  necessarily  arise  from  the  con- 
struction and  operation  of  the  road.  Uline 
V.  A'ew  York  C.  6-  H.  R.  R.  Co.,  23  Am.  &* 
Eng.  v.  Cas.  3,  101  N.  Y.  98.  4  N.  E.  Rep. 
536;  reversing  31  Hun  8^,  mem. — APPLIED 
IN  Conklin  v.  New  York,  O.  &  W.  R.  Co., 
26  Am.  &  Eng.  R.  Cas.  365,  102  N.  Y.  107, 
6  N.  E.  Rep.  663,  I  N.  Y.  S.  R.  677; 
Reining  v.  New  York,  L.  &  W.  R.  Co.,  27 
N.  Y.  S.  R.  69,  7  N..Y.  Supp.  S16.  Distin- 
guished IN  American  Primitive  Methodist 
Soc.  V.  Brooklyn  El.  R.  Co.,  46  Hun  530,  12 
N.  Y.  S.  R.  500.  Followed  in  Pond  v. 
Metropolitan  El.  R.  Co.,  112  N.  Y.  186,  19 
N.  E.  Rep.  487,  20  N.  Y.  S.  R.  479;  Ottenot 
V.  New  York,  L.  &  W.  R.  Co.,  43  Am.  &  Eng. 
R.  Cas.  129,  119  N.  Y.  603,  2  Silv.  App.  469, 
23  N.  E.  Rep.  169.  28  N.  Y.  S.  R.  483;  In  re 
Stack,  50  Hun  385,  21  N.  Y.  S.  R.  953,  3 
N.  Y.  Supp.  231.  Quoted  in  Harmon  v. 
Louisville,  N.  O.  &  T.  R.  Co.,  87  Tenn. 
614,  II  S.  W.  Rep.  703. 

N.  Y.  Gen.  Railroad  Act  of  1850,  ch.  140, 
authorizes  the  laying  of  tracks  across  high- 
ways on  condition  that  they  be  restored  to 
their  former  usefulness;  but  the  railroad 
may  cross  at  grade,  or  above  or  below  it 
as  the  necessity  of  the  road  may  require. 
So  an  abutting  landowner  cannot  recover 
damages  (or  grading  a   highway  up  to  a 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  162-165. 


613 


bridge  which  the  company  has  constructed, 
Conklin  v.  Ntw  York,  0.  &>  IV.  R.  Co..  26 
Am.  *•  Eng.  R.  Cas.  365,  102  N.  V.  107,  6 
JV.  E.  Rep.  663.  1  N.  V.  S.  R.  677  ;  affirming 
32  Hun  466,  »/««.— Distinguishing  Story 
V.  New  Vorlc  El.  R.  Co..  90  N.  Y.  122. 

A  slight  filling  of  gravel  on  a  street,  to 
restore  it  to  its  former  usefulness  and  to 
enable  vehicles  more  conveniently  to  pass 
over  the  track  into  an  alley,  does  not  entitle 
an  abutting  landowner  to  compensation. 
First  Congregational  Church  v.  Milwaukee 
&*  L.  W.  R.  Co.,  43  Am.  6-  Eng.  R.  Cas. 
182,  77  Wis.  158,  45  N.  W.  Rep.  1086.— DIS- 
TINGUISHING Buchner  v.  Chicago,  M.  &  N. 
W.  R.  Co.,  56  Wis.  403,  60  Wis.  264 ;  Shealy 
V.  Chicago,  M.  &  N.  R.  Co.  ,72  Wis.  471. 

1U2.  Liability  of  company  for 
lowerlngr  {frade.  —  City  authorities 
granted  to  a  company  the  right  to  construct 
its  track  diagonally  across  a  street  or  high- 
way the  fee  of  which  was  in  the  adjoinmg 
landowner,  and  it  was  constructed  partly 
on  his  land,  which  he  owued  subject  to  the 
public  easement.  It  lowered  the  street  on 
either  side  some  four  feet  and  thereby  made 
it  difficult  of  ingress  to  and  egress  from 
the  owner's  residence  and  more  difficult 
than  before  for  foot  passengers.  Held,  that 
the  company  was  liable,  and  that  a  recovery 
of  $1800  was  not  excessive.  Indianapolis, 
B.  &•  W.  R.  Co.  V.  Hartley,  67  ///.  439,  2 
Am.  Ry.  Rep.  59. 

The  lowering  by  a  company  of  the  grade 
of  a  highway,  in  order  to  adjust  such  grade 
to  that  of  its  track,  is  a  taking  of  the.  prop- 
erty of  the  owners  of  lots  abutting  on  such 
highway,  for  which,  and  for  the  consequent 
injury  to  such  lots,  the  company  must  make 
compensation,  although  the  track  itself  does 
not  encroach  upon  that  part  of  the  highway. 
Buchner  v.  Chicago.  M.  &*  N.  W.  R.  Co.,  56 
Wis.  403,  14  N.  W.  Rep.  273.— Distin- 
guished IN  First  Congregational  Church 
V.  Milwaukee  &  L.  W.  R.  Co.,  77  Wis.  1 58.— 
Buchner  v.  Chicago,  M.  &*  N.  W.  R.  Co., 
14  Am.  6-  Eng.  R.  Cas.  447,  60  Wis.  264,  19 
N.  W.  Rep.  56. 

After  the  grade  of  a  highway  has  been  so 
changed  an  injunction  will  not  be  granted 
at  the  suit  of  a  lot  owner  whose  land,  though 
injured  by  the  change,  is  not  actually  en- 
croached upon  by  the  track,  to  restrain 
the  company  either  from  running  its  trains 
or  from  graveling  or  repairing  the  highway, 
or  to  compel  the  restoration  of  the  hi,;h\vny 
to  its  original  grade.    Buchner  v.  (7i/C:7.y, 


M.  &*  N.  W.  R.  Co.,  56  Wis.  403, 14  N.  W. 
Rep.  273. 

A  company  was  authorized  to  run  its  road 
through  and  upon  streets,  wharves,  places, 
or  squares.  In  constructing  the  road 
through  a  street  in  front  of  plaintifl's  prop- 
erty, a  cut  of  about  twelve  feet  was  made. 
Plaintifl  was  employed  by  the  contractor 
and  assisted  in  making  the  cut.  Held :  (1) 
that  the  company  exceeded  its  charter  priv- 
ileges in  making  the  cut,  making  it  liable  in 
damages ;  (2)  that  plaintiff  was  not  estopped 
by  having  worked  on  the  street,  it  appear- 
ing he  had  not  consented  to  the  cut.  Wood 
V.  Carleton  Branch  R.  Co.,  14  New  Brun. 
244.— Quoting  Lamb  v.  North  London  R. 
Co..  L.  R.  4  Ch.  526;  Webb  v.  Manchester 
&  L.  R.  Co.,  4  Myl.  &  C.  120. 

163.  Consent  of  abutter  to  occu- 
pation of  street  implies  consent  to 
regrading. — The  consent  to  the  location 
of  a  railroad  in  a  street  necessarily  implies 
consent  to  such  regrading  of  it  as  is  neces- 
sary, and  deprives  the  property  owner  thus 
consenting  of  the  right  to  claim  damages 
incident  to  the  location.  Wolfe  v.  Coving- 
ton &' L.  R.  Co.,is  B.  Mon.  (A>.)  404.— Fol- 
lowed IN  Louisville  &  F.  R.  Co.  v.  Brown, 
17  B.  Mon.  763;  Fulton  v.  Short  R.  R. 
Transfer  Co.,  85  Ky.  640,  7  Am.  St.  Rep. 
619,  4  S.  W.  Rep.  332. 

As  a  member  of  a  city  council  plaintiff 
advocated  and  voted  for  the  location  of  a 
railroad  in  a  certain  street,  and  advocated 
the  same  location  in  a  speech  before  the 
directors  of  the  company,  and  said  that  the 
location  in  the  street  would  be  worth  a  large 
sum  to  him,  in  benefiting  his  property  on 
the  street.  Held,  that  this  authorized  the 
jury  to  find  that  plaintiff  had  consented  to 
the  location  of  the  road.  Wolfe  v.  Coving- 
ton &'  L.  R.  Co.,  15  B.  Mon.  {Ky.)  404. 

164.  Eivioinlii{;  chnn(;e  of  grade.- - 
A  city  may  enjoin  a  railroad  company  Trom 
changing  the  grade  of  streets  over  which 
it  has  control,  if  the  change  would  deprive 
the  public  of  the  use  of  tlie  same.  Mayor, 
etc.,  of  fersey  City  v.  Central  R.  Co.,  23  Am. 
*•  Ettg.  R.  Cas.  138,  40  N.f.  Eg.  417, 2  Atl. 
Rep.  262. 

165.  Liability  of  company  raising 
embankment  in  street.  —  The  power 
given  by  statute  to  a  company  when  its  road 
intersects  or  crosses  a  highway  to  carry 
sucli  highway  over  or  under  the  railroad, 
"  as  may  be  found  most  expedient  for  the 
public  f,'ood,"  includes  the  power  to  alter 


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614 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  165. 


the  gr&de  of  the  highway,  provided  it  is  so 
done  as  not  substantially  tc  impair  its  use- 
fulness. Pdlatka  &*  I.  K.  R.  Co.  v.  State,  yi 
Am.  &*  Etiff.  R.  Cas.  191,  13  Fla.  546,  11 
Am.  St.  Rep.  395,  3  So.  R*p.  158. 

If  there  be  a  cut  or  embankment,  and  the 
level  of  the  highway  is  graded  down  or  up 
to  the  track  in  siich  manner  and  at  such  an 
angle  as  not  to  work  any  substantial  detri- 
ment to  either  persons  or  vehicles  traveling 
the  highway,  the  company  does  not  tran- 
scend its  powers  or  duties.  Palatka  &*  I. 
R.  R.  Co.  V.  State,  32  Am.  6-  Eng.  R.  Cas. 
191,  23  Fla.  546,  II  Am.  St.  Rep.  395,  3  So. 
Rep.  158. 

Where  the  topography  of  the  country  is 
such  that  the  cut  or  embankment  makes  a 
change  of  the  highway  either  necessary  or 
desirable,  "with  a  view  to  a  more  easy 
ascent  or  descent,"  the  change  maybe  made. 
Palatka  &-  /.  R.  R.  Co.  v.  State,  32  Am.  &• 
Eng.  R.  Cas.  191,  23  Fla.  546,  11  Am.  St. 
RtP-  i9l.iSo.Rep.  158. 

A  company  is  liable  for  injury  occasioned 
by  the  construction  of  a  raised  track  along 
a  street,  thereby  causing  the  water  from 
rains  and  freshets  to  flow  upon  adjacent 
real  estate ;  and  also  for  injury  occasioned 
by  the  construction  of  an  embankment,  on 
a  street  approaching  a  street  crossing  of  said 
track,  in  front  of  a  lot  in  a  city  occupied  by 
a  dwelling  house,  thereby  rendering  the 
approach  to  the  lot  impassable  for  carriages 
and  inconvenient  for  foot  passengers.  In- 
dianapolis, B.  &»  W.  R.  Co.  V.  Smith,  52 
Ind.  428. 

Where  a  municipality  authorizes  a  com- 
pany to  lay  its  track  in  a  street,  the  author- 
ity is  to  lay  it  on  the  existing  grade  of  the 
street ;  and  if  the  company  lays  its  track  on 
an  embankment  it  will  be  liable  for  any 
damages  that  result  to  abutting  property 
owners.  Cross  v.  St.  Louis,  K.  C.  Sf  N.  R. 
Co.,  14  Am.  &*  Eng.  R.  Cas.  123,  77  Mo.  318. 
— Distinguishing  Randle  v.  Pacific  R.  Co., 
65  Mo.  325.  QirOTiNG  Tate  v.  Missouri, 
K.  &  T.  R.  Co.,  64  Mo.  158.  —  Distin- 
guished in  Glaessner  v.  Anheuser-Busch 
Brew.  Assoc,  100 Mo.  508, 13 S.  W.  Rep. 707. 
Quoted  in  Gaus  &  S.  Mfg.  Co.  v.  St.  Louis, 
K.  &  N.  R.  Co.,  113  Mo.  308.— SmitA  v. 
Kansas  City,  St.  J.  &*  C.  B.  R.  Co.,  98  Mo. 
20,  1 1  .S.  W.  Rep.  259. 

Prior  to  1875  plaintiffs  owned  certain 
premises  on  a  city  street,  their  title  extend- 
ing to  the  centre  of  the  street,  subject  to 
the  public  easement.     In  that  year  the  city 


acquired  by  condemnation  the  title  to  a 
large  number  of  its  streiets,  including  said 
street,  a  uniform  and  nominal  award  of 
damages  being  paid  to  each  of  the  owners, 
including  plaintiffs. .  The  city  charter  con- 
fers upon  its  common  council  power  to  alter 
the  grade  of  streets  and  to  "permit  the 
track  of  a  railroad  to  be  laid  in,  along,  or 
across  any  street  or  public  ground."  (Laws 
1870,  ch.  519,  tit.  9,  $§  I.  2,  6 ;  tit.  3,  §  19.) 
In  1882  the  common  council  granted  to 
defendant,  a  steam-railroad  corporation,  the 
right  to  construct  and  maintain  two  tracks 
along  the  centre  of  the  street.  In  pursuance 
thereof  and  in  accordance  with  the  map  and 
profile  approved  by  said  council,  and  under 
the  direction  of  the  city  engineer,  defend- 
ant built  an  embankment  inthe  street  in 
front  of  plaintiffs'  premises,  supported  later- 
ally by  perpendicular  walls,  which  practi- 
cally excluded  all  abutting  owners  from 
that  part  of  the  street,  and  so  interfered 
with  the  use  of  the  street  as  to  cause  the 
rental  value  of  plaintiffs'  premises  to  depre- 
ciate. Held,  that  an  action  was  maintain- 
able to  recover  damages  for  such  deprecia- 
tion. Reining  v.  New  York,  L.  &*  IV.  R. 
to.,  50  Am.  &»  Eng.  R.  Cas.  205,  128  JV.  V. 
157.  28  N.  E.  Rep.  640.  40  A^.  Y.  S.  R.  401  ; 
affirming  35  A^.  Y.  S.  R.  731,  13  N.  Y.  Supp. 
238.— Distinguishing  Fobes  v.  Rome,  W. 
&  O.  R.  Co.,  121  N.  Y.  505  ;  Ottenot  v.  New 
York,  L.  &  W.  R.  Co.,  119  N.  Y.  603.— Ap- 
proved IN  Egerer  v.  New  York  C.  &  H.  R. 
R.  Co.,  130  N.Y.  108. 

The  action  of  the  common  council  in  au- 
thorizing the  construction  of  the  embank- 
ment was  not  a  change  of  grade  within  the 
meaning  of  the  charter,  and  therefore  the 
provision  of  the  charter  that "  when  the  city 
shall  alter  the  recorded  grade  of  any  street 
or  alley,  the  owner  of  any  house  or  lot  front- 
ing thereon  may,  within  one  year  thereafter, 
claim  damages  by  reason  of  such  alteration  " 
(tit.  9,  §  17)  did  not  apply  so  as  to  confine 
plaintiffs  to  a  remedy  against  the  city. 
Reining  v.  New  York,  L.  &*  W.  R.  Co.,  50 
Am.  &*  Eng.  R.  Cas.  205,  128  N.  Y.  157,  28 
A^  E.  Rep.  640,  40  N.  Y.  S.  R.  401 ;  affirm- 
*ne  3S  ^-  y-  S.  R.  731,  13  N.  Y.  Supp.  238. 

While  the  authority  conferred  by  the  Gen- 
eral Railroad  Act  (Laws  of  1850,  ch.  140, 
§  24)  upon  railroad  corporations  to  cross 
highways  in  the  construction  of  their  lines 
authorizes  their  construction  on,  over,  or 
below  the  highway  grade,  and  so  to  make 
such  incidental  changes  of  the  grade  as 


L 


mi 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  166-168.         615 


to  a 
said 
d  of 
rners, 
con- 
alter 
t  the 
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Laws 

«9) 
ed  to 
n,  the 
racks 


may  be  rendered  necessary,  without  giving 
a  right  of  action  to  abutting  owners  who 
sustain  injury,  the  change  here  made  did 
not  come  within  that  authority.  Reining  v. 
New  York,  L.  &*  IV.  R.  Co.,  50  Am.  &*  Eng. 
R.  Cas.  205,  12^  N.  Y.  157. 28  N.  E.  Rep.  640. 
40  A':  Y.  S.  R.  401 ;  affirming  35  N.  Y.  S. 
R.7i\,ilN.  Y.  Supp.  238. 

Where  a  railroad  is  constructed  in  a  street 
on  an  embankment  so  as  to  interfere  with 
the  approach  to  abutting  property,  and 
which  prevents  surface  water  from  draining 
off,  the  company  is  liable,  though  the  work 
has  been  approved  by  the  city  engineer. 
Parrot  v.  Cincinnati,  H.  &»  D.  R.  Co.,  10 
Ohio  St.  624. — Not  followed  in  Colum- 
bus, H.  V.  &  T.  R.  Co.  V.  Gardner,  32  Am. 
&  Eng.  R.  Cas.  243, 45  Ohio  St.  309, 1 1  West. 
Rep.  264,  13  N.  E.  Rep.  69. 

160.  Liability  of  city  for  insuffi- 
ciency of  culverts.— Where  a  municipal 
corporation  has  granted  a  right  of  way 
through  a  street,  and  the  company,  solely 
for  its  own  use,  erects  a  culvert  on  the 
street,  the  municipal  corporation  is  not  lia- 
ble for  an  injury  resulting  to  an  individual 
from  an  overflow  of  water  caused  by  the 
defective  construction  of  the  culvert.  Stack- 
house  V.  Lafayette,  26  Ind.  17.— Reviewing 
Ross  V.  Madison,  i  Ind.  281. 

If  a  city  permits  a  company  to  occupy 
and  cross  streets  and  alleys,  and  requires  it 
to  construct  culverts,  and  the  city  adopts 
them  for  its  use,  and  tliey  prove  insufficient, 
or  become  out  of  repair,  the  city  will  be 
liable  for  injury  resulting  to  adjoining  prop- 
erty by  reason  of  such  insufficiency.  Indian- 
apolis V.  Lawyer,  38  Ind.  348. 

While  the  city  will  not  be  liable  for  injury 
resulting  from  defective  sewers  constructed 
for  the  exclusive  use  of  the  company,  still  it 
cannc'c  delegate  its  general  power  and  adopt 
the  work  of  the  company  as  part  of  its  gen- 
eral system  without  responsibility  for  defects 
in  the  work.  Indianapolis  v.  Lawyer,  38 
Ind.  348. 

In  an  action  against  a  city  for  flooding 
plaintiff's  premises  by  means  of  an  insuffi- 
cient culvert  along  an  open  waterway  or 
course  under  the  street,  it  appeared  that  a 
railroad  had  included  that  portion  of  the 
street  in  its  location ;  and  that  tiie  duty  of 
maintaining  both  street  and  culvert  had 
passed  from  the  city  to  the  railroad  which 
built  the  culvert  and  ever  since  maintained 
it:  and  that  the  acts  complained  of  were 
those  of  the  railroad  and  not  of  the  city. 


Held,  that  the  action  could  not  be  sustained. 
Lander  v.  Bath,  85  Me.  141,  26  Atl.  Rep. 
1091.— Following  Hayden  v.  Skillings,  78 
Me.  417;  Boston  &  M.  R.  Co.  v.  York 
County  Com'rs,  79  Me.  392. 

It  is  competent  for  a  city  council,  when. a 
charter  authorizes  a  company  to  build  its 
road  "  under  such  conditions  and  ordinances 
as  the  mayor  and  aldermen  of  said  city  may 
provide  and  require,"  to  release  the  com- 
pany from  an  obligation  "  to  construct  and 
keep  in  good  repair  all  cross  culverts  whenr 
ever  the  same  may  be  required  under  their 
rail  tracks."  Galveston  v.  Galveston  City  R. 
Co.,  46  Tex.  435,  13  Am.  Ry.  Rep.  274. 

5.  Unauthorised  Use  of  Streets. 

167.  Unlawful  occupancy  of 
street.  —  Where  a  company  unlawfully 
constructs  its  road  in  a  public  street  so  as 
to  interfere  with  the  private  rights  oi  abut- 
ters, it  constitutes  a  continuing  trespass,  for 
which  successive  suits  for  damages  may  be 
brought,  so  long  as  the  trespass  is  continued, 
until  the  occupation  ripens  into  title  by  pre- 
scription. Lamm  v.  Chicago,  St.  P.,  M.  Gr* 
O.  R.  Co.,  46  Am.  6^  Eng.  R.  Cas.  42,  45 
Minn.  71,  47  A^.  W.  Rep.  455.— APPROVING 
Blesch  V.  Chicago  &  N.  W.  R.  Co..  43  Wis. 
183.  Distinguishing  Chicago  &  E.  I.  R. 
Co.  V.  Loeb,  118  111.  203;  Milwaukee  &  N. 
R.  Co.  V.  Strange,  63  Wis.  178. 

The  evidence  showed  that  a  railroad  was 
constructed  and  operated  on  a  street  before 
plaintiff  acquired  title  to  certain  premises 
abutting  thereon ;  that  the  company  was 
authorized  to  operate  its  road  on  the  street, 
but  that  it  was  not  authorized  to  store  cars 
on  the  track  in  front  of  plaintiff's  property. 
There  was  no  evidence  to  show  when  the 
street  was  opened,  or  what  rights  the  prop- 
erty owners  had  therein,  or  what  right  to  use 
the  street  the  company  had  acquired.  Held, 
that  the  court  was  not  justified  in  finding, 
as  a  conclusion  of  law,  that  plaintiff  was 
entitled  to  damages  and  an  injunction  to 
restrain  the  further  storage  of  cars  on  the 
street.  Mosner  v.  Rome,  W.  &*  O.  R.  Co.,  5 
A^.  Y.  Supp.  S07,  $1  Hun  6^S. 

168.  Obstructing;  streets,  gener* 
ally. — Authority  from  the  legislature  to  a 
company  to  occupy  a  street  is  not  sufficient, 
where  it  appears  that  the  street  has  not  been 
legally  laid  out ;  and  the  company  may.  be 
enjoined  from  laying  its  track,  and  especially! 
from  erecting  a  trestle  and  a  waiting  room 


616        STREETS   AND   HIGHWAYS  (RAILWAYS  IN),  160,  170. 


:  1 


lie .; 
I;" 

It   '■ 
P  ■ 

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on  the  ground  claimed  as  a  street.  Burns  v. 
Multnomah  R.  Co.,  lo  Am.  &»  Eng,  R.  Cas. 
289,  8  Sawy.  (U.  S.)  543,  15  Fed.  Rep.  177. 

The  owner  of  property  abutting  on  an 
alley  obstructed  by  a  railroad  improperly 
constructed  thereon  is  not  authorized  upon 
his  own  motion  to  enter  upon  the  nlley  for 
the  purpose  of  changing  the  track  or  repair- 
ing the  alley,  thereby  lessening  the  injury 
and  reducing  the  damages  to  which  he  would 
be  entitled.  Tlic  control  of  the  alley  is  in 
the  city.  Central  Branch  U.  P.  R.  Co.  v. 
Andrews,  41  Kan.  370,  21  Pac.  Rep.  276. 

No  license  or  consent  from  a  city  will 
exempt  a  company  from  liability  to  an  abut- 
ting owner  for  placing  an  obstruction  across 
an  alley  which  practically  excludes  access  to 
the  lot  for  the  ordinary  purposes  for  which 
an  alley  is  used  by  an  owner.  Leavenworth, 
N.  **  S.  R.  Co.  V.  Curtan,  56  Am.  &*  Eng.  R. 
Cas.  636,  51  Kan.  432,  33  Pac.  Rep.  297. — 
Quoting  Ft.  Scott,  W.  &  W.  R.  Co.  v.  Fox. 
42  Kan.  494. 

Although  the  obstruction  may  not  wholly 
prevent  access  to  the  property,  if  it  is  such 
as  practically  to  preclude  the  ordinary  and 
reasonable  use  of  the  alley  iis  a  means  of 
entering  and  leaving  the  rear  of  the  lot,  the 
company  is  liable  for  tlie  injury  suffered. 
Leavenworth,  N.  &*  S.  R.  Co.  v.  Curtan,  56 
Am.  &*  Eng.  R.  Cas.  636,  51  A'aw.  432,  33 
Pac.  Rep.  297. 

Where  a  company,  under  a  city  ordinance 
or  a  statute,  constructs  and  operates  its  road 
in  a  street  or  highway,  but  leaves  sufficient 
space  between  the  roadbed  and  abutting 
land  or  lots  for  ordinary  vehicles,  teams, 
and  travel,  there  is  no  such  obstruction  of 
access  to  abutting  land  or  lots  as  to  permit 
damages  for  any  depreciation  in  value 
thereof.  Chicago,  K.  (J*  IV.  R.  Co.  v.  l/nton 
Inv.  Co.,  56  Am.  &*  Eng.  R.  Cas.  679,  51  Kan. 
600,  33  Pac.  Rep.  378. 

Where  a  track  has  been  laid  in  a  public 
street  without  authority,  any  adjacent  pro- 
prietor who  has  not  consented  to  such  use 
is  entitled  to  damages  for  such  injury  as  he 
may  have  suffered  in  consequence  thereof, 
and  it  is  for  the  jury  to  determine  what  the 
damages  have  been  from  the  malicious  and 
unnecessary  operation  of  the  road.  Grand 
Rapids  &»  I.  R.  Co.  v.  Heisel,  10  Am.  6-  Eng. 
R.  Cas.  260.  47  Mich.  393,  i  r  A^.  IV.Rep.  212. 

100.  Obstructing  travel  with 
standing  cars,  making  up  trains,  etc. 
— Where  the  use  and  occupation  of  streets 
in  a  city  are  legal,  no  recovery  can  be  had 


by  reason  of  the  inconvenience  to  citizens 
caused  by  such  use,  provided  the  use  be 
reasonable.  Click  v.  Baltimore  &*  O,  R. 
Co.,  8  Mackey  (D.  C.)  412. 

But  a  citizen  may  recover  for  any  griev- 
ances suffered  by  reason  of  an  unauthorized 
use  of  such  lawful  structures,  and  their  use 
for  the  purpose  of  shifting  and  coupling 
cars  in  making  up  trains  is  unauthorized 
and  unlawful.  Click  v.  Baltimore  &*  O.  R. 
Co.,  8  Mackey  {D.  C.)  412.— Reaffirming 
Neitzeyw.  Baltimore  &  P.  R.  Co.,  5  Mackey 
34;  Hopkins  v.  Baltimore  &  P.  R.  Co.,  6 
Mackey  311. 

Where  an  abutting  owner  complains  of 
the  unlawful  use  of  a  street  by  a  company 
in  permitting  cars  to  stand  upon  it,  and 
using  it  for  the  purpose  of  loading  and 
unloading,  the  offense,  being  but  tempora- 
ry in  its  nature,  is  one  which  makes  tlie 
company  liable  for  an  action  whenever  and 
as  often  as  the  wrong  is  committed.  Litid- 
quest  V.  Union  Pac.  R.  Co.,  33  Fed.  Rep.  yj2. 
— Following  Frankle  v.  Jackson,  33  Fed. 
Rep.  371. 

The  fact  that  a  company  is  authorized  to 
use  a  street  will  not  relieve  it  from  liability 
for  damages  resulting  to  adjoining  property 
owners  by  the  improper  use  of  the  street, 
as  by  unnecessarily  leaving  cars  thereon. 
Frankle  v.  Jackson,  30  Fed.  Rep.  398. 

170.  Using  street  for  loading  and 
unloading. — An  abutting  property  owner 
may  recover  damages  against  a  company 
that  uses  an  avenue  for  the  purpose  of  a 
freight  yard  or  freight  delivery,  and  thereby 
damages  the  abutting  property.  Trook  v. 
Baltimore  6-  P.  R.  Co.,  3  MacArth.  (D. 
C.)  392. 

In  such  action  witnesses  who  are  ac- 
quainted with  the  value  of  the  property  in 
the  same  locality  may  testify  as  to  their 
opinion  regarding  the  depreciation  in  the 
value  of  plaintiff's  property  caused  by  such 
unlawful  obstruction  of  the  avenue.  Trook 
V.  Baltimore  <S-  P.  R.  Co.,  3  MacArth.  (D. 
C.)  392- 

An  instruction  to  the  jury  that  a  company 
has  a  right  to  use  the  public  streets  "  to  a 
reasonable  extent  for  the  purpose  of  loading 
and  unloading  its  cars,"  and  that  "  plaintiff 
cannot  recover  for  any  annoyance  to  him  or 
his  family  resulting  therefrom,"  is  errone- 
ous, if  the  use  of  the  streets  for  such  purpose 
be  unauthorized.  Neitaey  v.  Baltimore  &■* 
P.  R.  Co.,  26  Am.  &*  Effg.  R.  Cas.  553,  5 
Mackey  {J?.  034. 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  171-174.         617 


A  company  cannot  justify  the  using  of  a 
street  for  receiving  and  discharging  freight, 
nor  as  a  place  for  malcing  up  trains  or  for 
standing  cars,  by  showing  that  it  has  au- 
thority to  lay  its  tracks  and  switches  on  the 
street.  Owensborough  &*  N.  R.  Co.  v.  Sut- 
ton,  (A>.)  135.  W.  Rep.  1086. 

17**.  Storage  of  cotton  on  street. 
— Although  a  street,  by  reason  of  its  decliv- 
ity and  of  the  fact  that  it  terminates  upon  a 
river,  is  used  only  by  foot  travelers,  the  city 
council  cannot  lease  the  same  to  a  railroad 
company  for  the  purpose  of  storing  cotton 
thereon,  such  a  lease  being  a  perversion  of 
the  public  use  to  which  the  lands  are  de- 
voted. Marine  Ins.  Co.  v.  St.  Louis,  I.  M. 
&»  S.  R.  Co.,  43  Am.  &*  Eng.  R.  Cas.  79,  41 
Fed.  Rep.  643. 

172.  Unauthorized  excavations.— 
A  city  council  gave  to  a  company  the  right 
to  construct  its  track  along  a  public  street, 
and  the  company  made  excavations  along 
such  street  so  that  plaintiffs  were  deprived  of 
convenient  access  to  and  egress  from  their 
lots,  and  the  lots  and  tenements  thereon  were 
subject  to  injury  by  the  caving  and  falling 
of  the  street  and  lots.  He/ti,  that  the  city 
was  liable  for  the  injury  caused  by  such 
excavations.  Pekin  v.  Brereton,  67  ///.  477. 
— Criticising  Prop'rs  of  Locks,  etc.,  v. 
Nashua  &  L.  R.  Corp.,  10  Cush.  (Mass.)  385. 
Following  Nevins  v.  Peoria,  41  111.  502. 
Modifying  Moses  v.  Pittsburgh,  Ft.  W.  & 
C.  R.  Co.,  21  III.  S16;  Murphy  z/.  Chicago, 
29  III.  279.— Followed  in  Stack  v.  East 
St.  Louis,  85  III.  377.  Reviewed  and  dis- 
tinguished in  Olney  v.  Wharf,  115  III.  519. 

Plaintiff  sued  for  injuries  occasioned  to 
his  premises  by  an  unauthorized  excavation 
by  defendant  company  in  the  street  in  front 
of  his  property.  The  company  claimed  that 
he  was  not  entitled  to  damages  to  the  full 
amount  of  the  diminution  of  the  value  of 
his  property  suffered  in  consequence  of  the 
excavation,  because  he  could  refill  it  for 
less  than  the  amount  of  such  diminution. 
Held,  that  the  burden  was  on  the  company 
to  establish  this  claim,  and  in  order  tn  do  so 
it  must  show  that  plaintiff  had  a  right  to 
refill  the  excavation.  Karst  v.  St.  Paul,  S. 
&*  T.  F.  R.  Co.,  23  Minn.  401. 

1 73.  Iieaviiig  stone  and  earth  out- 
side of  right  of  way.  —  Where,  in  con- 
structing its  road  across  a  street,  a  company 
unnecessarily  places  stone  and  dirt  outside 
of  its  right  of  way.  m  the  street,  in  front  of 
a  person's  lots,  to  his  injury,  it  is  liable  to 


him  therefor.   Farrant  v.  First  Div.  St.  P. 
&*  P.  R.  Co..  i;  Minn.  311  {Gil.  a86). 
174.  Creat'.ug a  nuisance  on  street. 

— The  privileges  growing  out  of  the  acts  of 
congress  authorizing  defendant  company  to 
lay  necessary  tracks  at  or  near  its  depots 
or  stations  in  the  District  of  Columbia  are 
privileges  conferred  by  competent  authority, 
and  any  inconvenience  which  may  result  to 
private  individuals  by  their  careful  exercise 
is  damnum  absque  injuria.  Neitzey  v.  Balti- 
more &*  P.  R.  Co.,  26  Am.  6*  Eng.  R.  Cas. 
SS3.  5  Mackey  (D.  C.)  34. 

But  the  company  is  not  authorized  to 
convert  streets  and  avenues  of  the  city  into 
freight  yards  by  loading  and  unloading  cars 
thereon  and  leaving  them  there  when  not 
in  use;  still,  if  no  private  inconvenience  to 
anybody  results  therefrom,  it  is  simply  an 
indictable  nuisance  and  not  a  private  one. 
Neitzey  v.  Baltimore  &*  P.  R.  Co.,  26  Am. 
&*  Eng.  R.  Cas.  553.  5  Mackey  {D.  C.)  34. 

When,  however,  these  cars  have  been 
used  for  the  conveyance  of  offensive  matter, 
and  so  infect  the  whole  atmosphere  with 
noxious  odors,  and  when  the  freight  loaded 
and  unloaded  there  consists  «.!  similar 
material,  and  the  process  of  bringing  the 
cars  there  and  taking  them  away  for  the 
purpose  of  loading  and  unloading  causes 
annoyance  by  jarring  the  neighbo.'ing 
houses,  and  the  smoke  froin  the  engines 
penetrates  the  dwellings,  all  this  thc:n  be- 
comes more  than  a  public  nuisance ;  it  be- 
comes a  private  one.  Neitzey  v.  Baltimore 
&*  P.  R.  Co.,  26  Am.  6-  Eng.  R.  Cas.  $53.  S 
Mackey  (Z>.  C.)  34.— Reaffirmed  in  Glick 
V.  Baltimore  &  O.  R.  Co.,  8  Mackey  (D.  C.) 
412.  Reviewed  IN  Foggt/.  NevadaC.O.  R. 
Co.,  43  Am.  &  Eng.  R.  Cas.  105,  20  Nev.  429. 

A  track  laid  upon  a  city  street  by  author- 
ity of  law,  properly  constructed  and  oper- 
ated in  a  skilful  and  careful  manner,  is  not, 
in  law,  a  nuisance.  Chicago  &•  E.  I.  R.  Co. 
v.  Loeb,  27  Am.  &-  Eng.  R.  Cas.  415,  118  ///. 
203,  8  A^.  E.  Rep.  460. 

A  track  in  a  street  is  not  necessarily  a 
public  nuisance  per  se,  nor  can  it  be  said, 
as  a  matter  of  law,  that  it  is  an  obstruction. 
Therefore,  an  Indictment  against  a  com- 
pany which  merely  charges  that  a  track 
was  maintained  In  the  street,  but  dues  not 
directly  charge  that  it  was  an  obstruction, 
is  not  good.  Wabash,  St.  L.  &*  P.  R.  Co. 
V.  People,  1 2  ///.  App.  448. 

Defendant  company  was  indicted  for 
creating  a  nuisance  by  obstructing  certain 


I-  f  :! 

JXi!    ':    ■ 
Pi  ■ 


■li^''  ?-' : 

6l8        StkEkxa  AND   HIGHWAYS  (RAILWAYS  IN),  176, 176. 


•treets  (tnd  a  pql^iic  square  ^yi^  tracks, 
si|rit|c|ijes,  ifnd  buildings,  ai}<^  by  the;  manner 
o(  their  ifse.  The  company  filed  a  special 
plea  that  it  had  acquired  the  rigiit  to  use  the 
premises  for  the  purposes  of  its  rpad,  and 
that  in. such  use  it  created  such  temporary 
obgtruption  onlyas  resulted  from  the,  reason- 
%pU  an,d  necessary  transaction  of  its  busi- 
ness. .^ATr///,  that  the  plea, was  good.  Siaf* 
y.^LuuiiviUe,  N.  A.  S-C  R.  Co.,  lo  Am.  &* 
L'if.  R,  Cos.  286,  i61nj.  114. 

When  the  erectiqn  of  sjieds  or  awpings 
oyer  public  streets,  in  a  particular  manner, 
is  prohibited  by,  orc^inance,  sheds  or  a\v;iings 
not  constructed  in  the  manner  forbidden 
are  not  nuisances,  and  a  railroad  company 
cannot,  ol.  its  own  authority,  demolish  such 
s^ed  or  awning  simply  because  it  obstructs 
the  use  of  its  tr^ck.  Laviota  v..  Chicago, 
St.  L.  6-  N.  p.  R.  Co.,  4  Am.  &*  Eng.  R. 
Cas.  liS,  M(C/oin  (La^)  ^99. 
,,  Where  the  conipany  proyokes  the  jieed 
and.furnjshes  the,  labor  necessary , for  its 
accomplishment,  the  fact  that  the  demoli- 
tion of  such  a  shed  or.awping  yras  ordered 
without  lawful  authority  by  one  municipal 
officer,  and  done  under  the  superintendence 
qf  another,  does  not  make  the  company  less 
axf  actor  in  the  wrong  and  responsible  as 
«ich.  Lavfosa.  v.  Chicago,  St.  L.  &*  N.  0. 
R.  Co.,  4  Aw.  &*  Eng.  R.  Cas.  128,  McGloin 
(X«.)299.    ,,.         ,  ,    ,. 

176.  ^ureasonable  and  oppressive 
Uise  of  street.  —  A  company  may  be  pre- 
vented from  making  an  unreasonable  or 
pppressive  use  of  a  street,  or,  banquette,  d(e- 
spite  municipal  legislation  expressly  author- 
izing such  particular  manner  of  use.  La- 
vfosa  y.  Chicago,  St.  L.  &»  N.  O.  R.  Co.,  4 
Am.  &-  Eng,  R.  Cas.  128,  McGloin  (La.)  299. 

6.  Riitoration  of  Highway. 

176.  Obligation  of  company  to  re- 
store highway.'*'— Railroad  companies  in 
Pelaware  are  required  to  use  every  reason- 
able precaution  to  prevent  obstruction  to 
travel  or  injuries  to  travelers  during  the 
progress  of  the  work  of  constructing  a  track 
across  highways.  The  latter  must  be  re- 
stored to  a  safe  condition  as  rapidly  as 
possible,  subject  always  to  necessary  impair- 

*  Obligation  o<  company  to  restore  highways 
and  maintain  crossings,  see  notes,  10  Am.  & 
Eno.  R.  Cas.  330 ;  13  Am.  St.  Rbp.  93.  See  also 
36  Am.  &  Eng.  R.  Cas.  149,  abstr. 


ment.    Kynt  v.  Wilmington  &*  N.  R.  Co., 
8  Houst.  {Del.)  185.  14  Atl.  Rep.  922. 

A  highway  crossed  by  railroad  tracks 
must  be  so  far  restored  to  its  former  con- 
dition as  not  to  impair  its  usefulness  more 
than  the  additional  use  of  it  for  railroad 
purposes  requires,  unless  absolutely  neces- 
sary. Evamville  &>  T.  H.  R.  Co.  v.  Carve- 
ner,  32  Am.  6*  Eng.  R.  Cas.  134.  "3  Ind. 
51,  14  N.E  Rep.  738,  12  West.  Rep.  203. 
Ohio  &*  if.  R.  Co.  V.  Bridgeport,  43  ///. 
App.  89.  Rembe  v.  New  York,  O.  &*  W.  R. 
Co.,  I  Sih/.  App.  154,  102  N.  Y.  721,  mem., 
7  N.  E.  Rep.  797,  2  A':  Y.  S.  R.  498 ;  affirm- 
ing  32  Hun  68,  mem.  Gulf,  C.  &*  S.  F.  R. 
Co.  V.  Montgomery,  83  Tex.  64,  19  S.  W. 
Rep.  1015.  Gulf,  C.  &»  S.  F.  R  Co.  v.  Holt- 
camp,  3  Tex.  App.  {Civ.  Cas.)  527.  Missouri 
Pac.  R.  Co.  V.  Speed,  3  Tex.  Civ.  App.  454. 
22  &,  W.  Rep.  527.  famestown  v.  Chicago, 
B.  6-  A';  R.  Co.,  32  Am.  6-  Eng.  R.  Cas. 
263,  69  Wis,  648,  34  N.  W.  Rep.  728.  — 
Reviewed  in  Moundsville  v.  Ohio  River 
R.  Co..  37  W.  Va.  92. — Grand  Trunk  R.  Co. 
V.  Sibbald,  20  Can.  Sup.  Ct.  259;  affirming 
iSOnt.  App.  184,  19  Ont.  164.— Approving 
Bate  V.  Canadian  Pac.  R.  Co.,  18  Can.  Sup. 
Ct.  697.  , 

The  charter  of  a  company  required  it  to 
purchase  a  turnpike  road  running  parallel 
to  the  proposed  railroad,  and  to  assume  the 
liabilities  of  the  turnpike  corporation,  before 
being  permitted  to  run  cars  upon  its  own 
road,  and  gave  to  it  the  right  to  lay  the  rail- 
road track  across  and  along  the  turnpike, 
but  required  it  to  restore  the  road  to  its 
former  state,  or  in  sufficient  manner  not  to 
impair  its  usefulness.  Held,  that  if  the 
taking  of  a  part  of  the  bed  of  the  turnpike 
for  the  track  of  the  railroad,  or  the  bringing 
of  the  railroad  into  close  proximity  to  the 
turnpike,  rendered  it  dangerous  to  persons 
traveling  with  teams  on  the  latter  and  im- 
paired its  public  usefulness,  the  railroad  com- 
pany was  bound  either  to  remove  the  roads 
further  from  each  other,  or  to  separate  them 
by  protecting  guards.  Moshier  v.  Utica  &* 
S.  R.  Co.,  8  Barb.  {N.  Y.)  427. 

Whether  a  company  acts  under  a  special 
charter  or  under  the  General  Railroad  Act,  it 
only  has  a  mere  franchise  to  cross  streams 
or  highways,  subject  to  its  liability  to  make 
compensation  to  private  persons  who  are  in- 
jured ;  and  the  liability  of  the  company  will 
be  the  same  as  if  an  individual  had  acted. 
Robinson  v.  Hew  York  &*  E.  R.  Co.,  vj  Barb. 
{N.  Y.)  513. 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  i77-lte.        619 


The  provision  in  section  i6  of  Ohio  Cor- 
poration Act  of  May  i,  1852,  which  requires 
a  railway  company  to  place  a  highway 
crossed  or  diverted  "  in  such  condition  as 
not  to  impair  its  former  usefulness,"  is  a 
condition  inseparable  from  the  right  or 
franchise  granted  to  such  company  to  cross 
the  highway  with  its  railroad  or  to  divert  it 
from  its  location.  State  ex  rel.  v.  Dayton  &* 
S.  E.  R.  Co..  5  Am,  6-  Eng.  R.  Cas.  312,  36 
Ohio  St.  434. 

A  provision  in  a  railroad  charter  requir- 
ing the  company  to  restore  highways  to 
their  former  usefulness,  as  near  as  may  be. 
is  not  a  condition  precedent  to  the  com- 
pany's right  to  cross  a  highway  with  the 
railroad.  Richardson  v.  Vermont  C.  R.  Co., 
35  K/.  465. 

The  duty  imposed  upon  railroad  com- 
panies to  restore  and  keep  in  repair  high- 
ways that  they  may  cross  is  coupled  with 
the  privilege  of  using  and  occupying  the 
highway  for  their  tracks ;  and  if  a  company 
refuses  to  perform  this  duty,  it  should  not 
enjoy  the  easement  granted.  Oshkosh  v. 
Milwaukee  &*  L.  W.  R.  Co.,  39  Am.  &*  Eng. 
R.  Cas.  681,  74  Wis.  534.  43  N.  W.  Rep.  489. 

177.  "What  is  a  highway  within  the 
requirement.  —  A  way  generally  traveled 
by  the  public  for  more  than  fifteen  years  as  a 
public  road,  but  not  regularly  laid  out  under 
any  statute,  nor  of  public  record  as  a  highway 
or  street  by  dedication,  is  not  within  the 
terms  of  Kan.  Laws  of  1876,  ch.  105,  §  i. 
Missouri.  K.  &*  T.  R.  Co.  v.  Long,  6  Am.  ** 
Eng.  R.  Cas.  254.  27  Kan.  684. 

A  rord  that  has  never  been  regularly  laid 
out  or  opened  by  the  proper  authorities,  and 
which  is  in  fact  unused  and  is  unfit  for  travel 
and  closed  against  the  public,  is  not  a  "  high- 
way" within  the  meaning  of  the  provision 
of  the  railroad  law  which  makes  a  company 
laying  tracks  across  public  highways  liable 
for  injuries  resulting  from  neglect  to  restore 
them  to  a  proper  condition,  even  though  the 
owners  of  land  along  the  road  have  moved 
their  fences  back  so  as  to  open  it  as  a  high- 
way, and  have  been  paid  for  their  lands  by 
the  township,  and  a  bridge  has  been  built 
upon  it  by  the  public  authorities.  Flint  &• 
A  M.  R.  Co.  V.  IVilley,  5  Am.  &*  Eng.  R. 
Cas.  305.  47  Mich.  88,  10  A':  fV.  Rep.  120. 

New  York  General  Railroad  Act  of  1850, 
ch.  140,  §  28,  requiring  a  company  which 
constructs  its  railroad  along  or  across  a 
highway  to  restore  the  same  "to  its  former 
state,  or  to  such  a  state  as  not  unneces- 


sarily to  have  impaired  its  usefulness,"  does 
not  apply  where  the  road  in  question  is  not 
a  public  highway.  Kerr  v.  West  Short  R, 
Co.,  iSN.  Y.  S.  R.  63,  2  A^.  Y.  Sufp.  686. 

Under  Pa.  Act  of  Feb.  19,  1849,  provid- 
ing that  when  any  railroad  should  find  it 
necessary  to  occupy  any  part  of  "any  turn- 
pike or  public  road "  it  should  forthwith 
reconstruct  the  same,  the  character  of  the 
road  is  to  be  determined  by  the  time  when 
the  railroad  is  located.  So  the  act  was  held 
to  apply  to  a  case  where  a  railroad  was 
located  over  a  public  road,  but  the  road  was 
included  in  a  city  as  a  street  before  the  rail- 
road was  actually  constructed.  Pittsburgh, 
V.  &*  C.  R.  Co.  v.  Com.,  10  Am.  &»  Eng  R. 
Cas.  321,  loi  Pa.  St.  192. 

A  company  which  appropriates  a  portion  of 
a  road  which  has  formerly  been  a  turnpike, 
but  which,  owing  to  the  forfeiture  of  the 
turnpike  company's  charter,  has  been  aban- 
doned by  the  turnpike  company,  though  it 
continues  to  be  used  by  the  public,  is  bound 
to  cause  said  road  to  be  reconstructed,  under 
the  provisions  of  the  above  statute,  and  in 
case  of  refusal  it  will  be  compelled  by  man- 
damus so  to  do.  Pittsburgh,  McK.  &*  Y.  R. 
Co.  V.  Com.,  104  Pa.  St.  583. 

178.  Authority  to  use  highway 
presumed. — Where  there  is  nothing  in 
the  pleadings  or  the  evidence  to  show 
whether  a  company  procured  the  permission 
of  the  supreme  court  to  use  or  cross  a  high- 
way, as  required  by  statute,  or  not,  and  in 
the  absence  of  any  admission  or  evidence 
that  such  permission  was  not  granted,  the 
court  will  infer  that  the  company  complied 
with  the  law  and  obtained  such  permission. 
Schermerhorn  v.  Mt.  McGregor  R.  Co.,  23 
A^.  Y.  Supp.  417,  e^Hun  512,  52  A^.  Y.  S.  R. 
892. 

1 79.  Powers  of  higliway  commis- 
sioners. — The  commissioner  of  highways 
of  a  town  has  no  power  to  control  the  loca- 
tion of  a  railway  within  the  line  of  a 
highway  of  the  town,  and  while,  for  any 
failure  of  the  company  in  the  performance 
of  the  duty  of  restoration,  he  is  authorized 
to  maintain  an  action  for  its  performance, 
or  for  damages  sustained  by  the  town  (N. 
Y.  Act  of  i8s5,  ch.  255),  it  is  for  the  com- 
pany in  the  first  mstance  to  determine  the 
method  of  restoration,  it  taking  the  risk  of 
its  act  being  in  accordance  with  its  obliga- 
tion, and  the  commissioner  has  no  power  to 
dictate  how  the  restoration  shall  be  accom- 
plished.   Post  V.  West  Short  R.  Co.,  47  Am. 


'{'['. 


i 


^TlllB    I      ■ m     m. 


Mi 


620 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  180-182. 


&'  Eng.  R.  Cas.  32a.  123  A^  Y.  580,  26  A^. 
E.  Rep.  7,  34  N.  Y.  S.  R.  4S4;  affirming  50 
Hun  301,  20  N.  Y.  S.  R.  180,  3  A^.  Y. 
Supp.  172. 

The  provision  of  N.  Y.  General  Railroad 
Act  of  1850,  §  28,  subd.  5,  imposing  upon  a 
railroad  company  which  constructs  its  line 
across  a  highway  the  duty  to  restore  the 
same  "  to  its  former  state  or  to  such  state  as 
not  unnecessarily  to  impair  its  usefulness," 
does  not  relieve  commissioners  of  highways 
from  the  care  and  control  of  those  parts  of 
public  highways  constituting  approaches  to 
railroad  crossings,  although  constructed  by 
the  company  in  discharge  of  its  statutory 
duty.  Bryant  v.  Randolph,  133  A':  Y.  70, 
30  N.  E.  Rep.  657.  44  A'.  Y.  S.  R.  85. 

180.  Puty  to  bridge,  generally.— 
The  duty  of  restoration  of  "the  highway  as 
near  as  may  be  to  its  former  state,  so  as  not 
unnecessarily  to  L'npair  its  usefulness,"  im- 
posed by  its  charter  (section  5,  ch.  195,  Laws 
of  1846)  upon  defendant  company,  does  not 
absolutely  require  it,  at  such  a  crossing,  to 
construct  a  bridge  of  the  full  width  of  the 
highway ;  the  requirement  is  simply  so  to 
construct  the  bridge  as,  in  view  of  the 
circumstances,  not  unnecessarily  to  impair 
the  use  of  the  highway.  People  v.  New 
York,  N.  H.  &*  H.  R.  Co.,  10  Am.  ^  Eng. 
R.  Cas.  230,  89  A^.  Y.  266.— Disapproved 
IN  Raritan  Tp.  v.  Port  Reading  R.  Co., 
49  N.  J.  Eq.  II.  Followed  in  Hatch  v. 
Syracuse,  B.  &  N.  Y.  R.  Co.,  50  Hun  64,  24 
N.  Y.  S.  R.  36, 4  N.  Y.  Supp.  509. 

A  company  was  bound  by  its  charter  to 
restore  any  highway  intersected  by  the 
track  "to  its  former  state,  or  in  a  sufficient 
manner  not  to  impair  its  usefulness."  It 
constructed  the  road  across  a  street  which 
was  sixty-six  feet  wide,  and  connected  the 
street  again  by  a  bridge  across  the  track, 
forty  feet  and  two  inches  in  width.  Held, 
that  the  jury  might  with  propriety  find  this 
to  be  a  sufficient  compliance  with  the  act, 
and  tliat  defendant  was  not  necessarily 
guilty  of  a  nuisance  because  the  bridge  was 
not  of  equal  width  with  the  street.  Reg.  v. 
Great  West  em  R.  Co.,  12  U.  C.  Q.  B.  250. 

181.  Bridging  of  cuts  —  Repair  of 
bridge. — The  duty  to  restore  highways  to 
their  former  usefulness,  imposed  upon  rail- 
road companies  by  N.  Y.  General  Railroad 
Act.  is  a  continuingone.  Thus  where  a  com- 
pany constructs  its  road  across  a  highway 
in  a  cut,  and  carries  the  highway  over  the 
railroad  by  a  bridge,  it  is  bound  to  continue 


to  keep  the  bridge  in  repair  as  long  as  the 
highway  exists  and  it  continues  to  operate 
its  road.  Roe  v.  Elmendorf,  52  Haw.  Pr. 
{N.  Y.)  232.— Approving  People  ex  rel.  v. 
Troy  4  B.  R.  Co..  37  How.  Pr.  427. 

Where  a  company,  in  passing  through  a 
farm,  makes  a  deep  cut  in  a  private  road 
leading  to  the  public  highway,  it  cannot  be 
compelled  to  bridge  the  cut,  under  Pa.  Act 
of  Feb.  19,  1849,  requiring  the  bridging  of 
cuts  in  highways.  Traut  v.  New  York,  C. 
6-  St.  L.  R.  Co.,  (Pa.)  15  Ail.  Rep.  678. 

Defendant's  line  crossed  a  highway  be* 
tween  plaintiff's  farm  and  a  town,  and  at  the 
crossing  a  deep  cut  was  necessarily  made. 
Plaintiff  sued  defendant,  charging  that  after 
a  reasonable  time  for  restoring  the  road  had 
elapsed  it  wrongfully  and  injuriously  con- 
tinued the  cut,  and  thereby  the  highway 
had  been  rendered  impassable,  and  plaintiff 
had  been  prevented  from  driving  along  it  to 
town,  and  carrying  the  produce  of  his  farm, 
as  he  was  frequently  required  to  do.  The 
evidence  showed  that  it  was  impossible  to 
construct  a  bridge  across  the  cut  until  the 
latter  was  completed  and  the  banks  shaped. 
Plaintiff's  own  witness  swore  that  defendant 
had  carried  on  the  work  with  diligence ;  and 
before  the  trial  the  bridge  had  been  com- 
pleted, and  the  use  of  the  highway  restored. 
Held,  that  plaintiff  could  not  recover  :  (i) 
Because  it  was  no  wrong  on  defendant's  part 
to  let  the  cut  and  excavation  continue  for 
however  long  a  time,  and  that  was  the  in- 
jury complained  of.  (2)  If  the  declaration 
had  complained  of  delay  in  restoring  the 
road  by  a  bridge,  the  evidence  disproved 
such  a  charge.  (3)  If  such  delay  had  been 
proven,  then  defendant  would  have  been 
guilty  of  obstructing  a  public  highway,  for 
which  it  might  be  indicted,  but  plaintiff  as 
an  individual  could  maintain  no  action. 
Wardw.  Great  Western  R.  G?..  13  U.  C.  Q. 
B.  315.— Followed  in  Hamilton  v.  Covert. 
16  U.  C.  C.  P.  205. 

182.  What  Is  a  breach  of  the  duty 
to  restore.  —  Power  given  by  a  charter  of 
a  railroad  company  to  construct  its  road 
across  a  public  highway,  upon  condition 
that  the  same  be  restoi  ed  to  its  former  state, 
"  or  in  a  sufficient  manner  not  to  impair  its 
usefulness,"  does  not  authorize  the  company 
permanently  to  appropriate  any  portion  of 
the  public  highway  by  obstructions  which 
materially  interfere  with  the  public  travel. 
Little  Miami  R.  Co.  v.  Greene  County  Com'rs, 
31  Ohio  St.  338. 16  Am.  Ry.  Rep.  278.— QUOT- 


STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  183,  184.       621 


INO  Hamden  v.  New  Haven  A  N.  Co.,  27 
Conn.  165.  Reviewing  Roberts  v.  Chicago 
&  N.  W.  R.  Co.,  35  Wis.  679. 

The  evidence  showed  that  defendant  com- 
pany constructed  its  road  wiiere  it  crossed 
a  highway  in  a  deep  cut,  and  depressed  tiic 
highway,  leaving  banks  on  eitlier  side  so  as 
to  prevent  one  on  the  highway  from  seeing 
approaching  trains  until  he  was  on  or  very 
near  the  track.  Held,  that  this  was  suffi- 
cient to  authorize  a  jury  to  find  that  the 
company  had  failed  to  restore  the  liighway 
to  its  former  usefulness,  as  required  by  the 
statute.  Duffy  v.  Chicago  &*  N.  IV.  R.  Co., 
32  Wis.  269.— Approved  in  Roberts  v.  Chi- 
cago &  N,  W.  R.  Co.,  35  Wis.  679. 

A  railway  crossed  a  highway,  and  in  the 
line  of  the  ditch  formerly  running  at  the  side 
of  the  highway,  and  several  feet  within  the 
limits  of  the  highway,  the  company  con- 
structed an  open  culvert  of  square  timber, 
about  five  feet  deep  and  seven  feet  wide. 
Plaintifl,  walking  along  the  road  and  cross- 
ing the  railway,  fell  into  this  culvert  and 
was  injured.  Held,  that  the  company  was 
liable.  Its  duty  was  to  restore  the  highway 
to  its  former  state,  or  in  a  sufhcient  manner 
not  to  impair  its  usefulness,  and  in  substi- 
tut-  J  this  open  culvert,  which  it  could 
readily  have  covered,  for  the  former  ditch, 
it  had  unnecessarily  made  it  more  danger- 
ous. Fairbanks  v.  Great  Western  R.  Co.,  35 
U.  C.  Q.  B.  523.— Reviewing  Whitmarsh 
V.  Grand  Trunk  R.  Co.,  7  U.  C.  C.  P.  373. 

183.  Breach  of  the  duty  is  a  nui- 
sance.'*' —  If  a  company,  under  authority 
from  a  county  court  giving  it  license  to 
build  its  road  upon,  along,  or  across  public 
highways,  upon  the  express  condition  that 
it  shall  restore  such  highways  to  their 
former  state,  or  to  such  state  as  not  unnec- 
essarily to  impair  their  usefulness,  takes 
possession  of  a  part  of  a  public  highway 
and  constructs  its  road  upon  it,  but  fails  to 
restore  the  highway  to  such  state  as  is  re- 
quired by  law,  it  is  guilty  of  maintaining  a 
nuisance,  and  may  be  indicted  under  W.Va. 
Code,  ch.  43,  §  45,  notwithstanding  it  has 
such  authority  from  the  county  court.  State 
V.  MoHongahela  River  R.  Co.,  37  W.  Va. 
108,  16  S.  E.  Rep.  519.— Not  following 
State  V.  Chesapeake  &  O.  R.  Co.,  24  W. 
Va.  809. 

A  company  has  no  authority  to  use  a 
street  or  highway  for  its  roadbed  without 

*  See  also /M/,  210. 


restoring  the  same  to  its  former  condition ; 
and  a  failure  so  to  restore  the  highway  will 
constitute  a  nuisance.  Oshkosh  v.  Alilwauket 
&»  L.  W.R.  Co.,  39  Am.  &■*  Eng.  R.  Cas.  681, 
74  Wis.  534,  43  N.  W.  Rep.  489. 

184.  Linbllity  for  damage  done  be- 
fore restoration  completed.  —  Where 
a  railway  crosses  a  highway  and  thereby 
occasions  damage,  an  action  will  lie  against 
the  company  for  not  restoring  the  road 
within  the  prescribed  period.  Caledonian 
R.  Co.  V.  Colt,  3  Macq.  H.  L.  Cas.  833,  7 
Jur.  N.  S.  475. 

While  engaged  in  the  construction  of  its 
railroad  it  is  the  duty  of  the  company  to 
prevent  any  obstruction  to  persons  passing 
a  highway,  so  far  as  this  can  be  done;  and 
if  chargeable  with  negligence  in  this  respect 
it  is  liable,  but  the  question  of  negligence 
is  for  the  jury.  Rembe  v.  New  York,  O.  &* 
W.  R.  Co.,  I  Silv.  App.  154,  102  A':  Y.  721. 
mem.,  7  N.  E.  Rep.  797,  2  N.  Y.  S.  R.  498  ; 
affirming  32  Hun  68,  mem. 

The  failure  of  a  company  to  restore  a  high- 
way where  its  track  crosses,  as  required  by 
the  statute,  will  not  make  it  liable,  unless 
such  failure  contributed  to  the  injury  com- 
plained of.  So  held,  where  a  company  was 
charged  with  negligence  in  constructing  the 
approach  to  a  bridge  without  guard  rails  on 
either  side,  but  where  the  evidence  only 
showed  that  plaintiff's  intestate  was  found 
fatally  injured  at  the  base  of  the  approach, 
but  where  there  was  no  evidence  to  show 
that  he  fell  from  the  approach,  or  if  he  did, 
that  the  absence  of  guard  rails  caused  it. 
Gardinier  v.  New  York  C.  <S-  H.  R.  R.  Co., 
I  Silv.  App,  19s,  103  N.  Y.  674,  mem.,  9  A''. 
E.  Rep.  182,  3  A^.  Y.  S.  R.  693  ;  reversing  36 
Hun  647,  mem. 

The  Texas  statute  requiring  railroad 
companies  to  restore  highways  so  as  not 
unnecessarily  to  impair  their  usefulness  re- 
quires them  to  be  restored  as  soon  as  that 
can  reasonably  be  done.  So  where  plaintifl 
drove  along  a  highway  and  saw  defendant 
constructing  its  track  near  the  highway  on 
one  side,  and  on  returning  some  three  hours 
later  saw  that  the  track  was  laid  some  300 
yards  beyond  the  highway  on  the  other 
side,  but  was  injured  by  the  crossing  not 
being  restored,  and  there  was  some  evidence 
tending  to  show  that  it  might  have  been 
made  safe  in  a  few  minutes,  the  jury  was 
justified  in  finding  that  the  company  had 
not  restored  the  crossing  within  a  reason- 
able time.     Dallas  &»  G.  R.  Co.  v.  Able,  yf 


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629        STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  XBB,  186. 


Am.  &*  Eng.  R.  Cas.  453,  73  TVjt.  150.  9  5. 
W.  Rip.  871. 

The  complaint  in  an  action  (or  personal 
injuries  caused  by  the  failure  of  a  company 
to  restore  a  highway  to  a  safe  condition  and 
its  negligence  in  running  a  train  across  the 
same  is  held  to  be  sufficiently  definite  and 
certain.  Cheney  v.  Chicago,  M.  &*  N.  R. 
Co.,7S  f^"-  223,  43  A^.  IV.  Rep.  1152. 

185.  Duty  of  company  after  hiffli- 
vray  is  fUUy  restored.*— Kan.  Gen.  St. 
1868,  ch.  33,  $  47,  devolves  upon  railroad  com- 
panies the  duty  whenever  they  cross  a  high- 
way to  restore  it  to  its  former  state,  or  to  such 
a  state  as  not  to  have  necessarily  impaired  its 
usefulness,  but  no  duty  is  imposed  thereby 
upon  the  companies  to  keep  the  highway  in 
repair.  When  the  highway  has  been  fully 
restored  to  its  former  condition,  the  com- 
pany is  under  no  obligation  thereafter  un- 
der said  section  to  maintain  a  sufficient  and 
safe  crossing.  Missouri,  K.  &*  T.  R.  Co.  v. 
Long,  6  Am.  &*  Eng.  R.  Cas.  254,  37  Kan. 
684.— Not  followed  in  Memphis,  P.  P. 
&  B.  R.  Co.  V.  State,  38  Am.  &  Eng.  R.  Cas. 
439,  87  Tenn.  746,  1 1  S.  W.  Rep.  946. 

Under  the  statute  railroad  companies  are 
required  to  restore  highways  to  their  former 
state  of  usefulness,  and  to  preserve  them  in 
such  state.  The  duty  is  a  continuous  one. 
Hatch  V.  Syracuse.  B.  &*  N.  Y.  R.  Co.,  50 
Hun  64,  34  N.  Y.  S.  R.  36,  4  A^.  Y.  Supp. 
509.— Following  People  v.  New  York  C. 
4  H.  R.  R.  Co..  74  N.  Y.  303 ;  People  v. 
New  York,  N.  H.  &  H.  R.  Co.,  89  N.  Y. 
266. 

By  Ohio  Act  of  May  i,  1854,  §  33,  the  duty 
of  restoring  a  highway  diverted  in  the  con- 
struction of  a  railroad  to  "  such  condition 
as  not  to  impair  its  former  usefulness  "  it 
imposed  upon  the  corporation,  and  it  is  lia- 
ble for  injuries  resulting  from  its  neglect  to 
do  so.  But  when  such  highway  has  been 
fully  restored  to  such  condition,  the  corpo- 
ration is  under  no  obligation  to  keep  the 
same  in  repair.  If,  however,  after  such 
highway  has  been  fully  restored,  the  rail- 
road company  wrongfully  encroaches  upon 
the  highway,  or  impairs  its  usefulness,  it 
will  be  liable  for  damages  resulting  there- 
from. Pittsburgh.  Ft.  W.  6-  C.  R.  Co.  v. 
Maurer.  21  Ohio  St.  421.— Reviewing  Belle- 
fontaine  &  I.  R.  Co.  v.  Schruyhart,  10 
Ohio  St.  116. 


*  Obligation  to  pave,  grade,  and  repair  streets, 
see  note^,  38  Am.  A;  Eng.  R.  Cas.  410 :  36  Id.  553. 


Where  a  charter  only  requires  a  company 
to  restore  highways  "  and  leave "  them  in 
good  repair,  and  well  constructed  for  public 
use,  it  is  not  bound  to  keep  them  in  sucH 
condition.  Chesapeake.  O.  &*  S.  IV.  R.  Co. 
V.  State,  16  Lea  (Tenn.)  300.— Overruled 
IN  Memphis,  P.  P.  &  B.  R.  Co.  v.  State,  38 
Am.  &  Eng.  R.  Cas.  439,87  Tenn.  746,  II 
S.  W.  Rep.  946. 

Under  Wis.  Rev.  St.  of  1878,  §  1836,  re- 
quiring railroad  companies  which  construct 
their  tracks  across  or  along  any  highway  to 
restore  it  to  its  former  state,  and  thereafter 
to  maintain  the  same  in  such  condition,  the 
company  is  not  only  required  to  restore  the 
highway,  but  must  thereafter  maintain  the 
same  in  such  restored  condition.  Buchner 
V.  Chicago,  M.  &*  N.  IV.  R.  Co.,  14  Am. 
&>  Eng.  R.  Cas.  447,  60  IVis.  264,  19  N.  tV. 
Rep.  s6. 

180.  Who  may  proceed  aflratnst 
company  for  failure  to  restore  high- 
way.— Highways  in  Illinois  originally  con- 
structed as  national  roads  now  belong  to 
the  state,  and  the  towns  only  have  the  care 
and  Superintendence  of  them  in  keeping 
them  in  repair.  Ne/d.  that  this  is  not  such 
possession  as  will  allow  a  town  to  maintain 
an  action  of  trespass  fuare  clausum  /regit 
against  a  railroad  company  for  failing  to 
restore  such  road,  as  required  by  its  char- 
ter. Such  action  cannot  be  maintained 
unless  the  plaintiff  is  in  possession  of  the 
premises,  except  where  the  land  is  unoccu- 
pied, and  there  is  no  adverse  possession.  St. 
Louis,  V.  &*  T.  H.  R.  Co.  v.  Summit,  3  ///. 
App.  155.— Quoting  Conner  V.  New  Al- 
bany, I  Blackf.  (fnd.)  88.  Reviewing  Troy 
V.  Cheshire  R.  Co.,  23  N.  H.  83. 

Where  a  company  in  constructing  its 
road  changes  the  surface  of  a  public  high- 
way so  as  to  interfere  with  public  travel,  it 
is  the  duty  of  the  company  so  far  to  restore 
the  highway  to  its  former  condition  as  not 
to  interfere  materially  with  its  usefulness  to 
the  public,  and  if  it  fails  to  do  so  the  county 
may  have  an  action  against  it  for  damages. 
Greenup  County  v.  Maysville  &*  B.  S.  S,  Co., 
88  Xy.  659,  II  5.  IV.  Rep.  774. 

Where  the  duty  of  the  company  in  this 
regard,  and  the  measure  of  it,  are  declared 
by  statute,  the  county  may  maintain  an  ac- 
tion in  equity  to  compel  the  performance  of. 
the  duty,  and  in  the  same  suit  may  have 
an  issue  out  of  chancery  as  to  the  damages 
that  have  already  accrued.  Greenup  County 
T.  MaytviiU  &*  B.  S.  R.  Co.,  88  Ky.  659, 11 


STREETS  AND  HIGHWAYS   (RAILWAYS  IN),  187-101. 


623 


pany 
m  in 
ubiic 
such 
\  Co. 

ULED 

e.  38 
,6,  II 


S.  W.  R*p.  774.  —  Following  Lawrence 
County  V.  Chattaroi  R.  Co.,  81  Ky.  225. 

It  seems  that  under  N.  Y.  Act  of  1855, 
ch.  25s.  enlarging  tlie  powers  and  duties 
of  highway  commissioners,  a  highway  com- 
missioner may  institute  proceedings  to 
compel  a  company  fully  to  perform  this 
duty,  or  when  it  is  in  default  he  may  pro- 
ceed and  do  the  necessary  v|fork  and  main- 
tain an  action  against  the  company  for  the 
expense.  Bryant  v.  Randolph,  133  N.  Y. 
70.  30  A^.  E.  Hep.  657,  44  A^.  Y.  S.  K.  85. 

A  commissioner  of  highways  of  a  town 
sued  a  railroad  company  for  failing  to  re- 
store a  highway,  as  required  by  the  statute, 
asking  for  damages  against  the  company 
for  money  which  the  town  had  expended  in 
partially  restoring  the  highway,  and  that 
the  company  be  compelled  to  restore  it  to 
its  original  condition.  The  company  de- 
fended on  the  ground  that  this  was  not  the 
proper  form  of  action  ;  that  mandamus  was 
the  proper  remedy.  Held,  that  the  action 
as  brought  was  fully  authorized  by  N.  Y. 
Act  of  1855,  ch.  255,  expressly  authorizing 
highway  commissioners  to  bring  such  ac- 
tions. Barse  v.  Herkimer,  N.  &*  P.  N.  G. 
A'.  Co.,  13  N.  Y.  S.  R.21S,  47  Hun  632. 

187.  Notice  of  defect  to  company. 
— The  statutory  duty  of  railroads  to  IreStdre 
highways,  where  their  tracks  interfere  with 
the  same,  is  a  continuing  one,  and  devolves 
upon  any  company  which  may  succeed  to 
the  ownership  of  the  road.  So  where  a 
second  company  succeeds  to  a  road  after  it 
is  built,  it  is  not  necessary  to  show  that  it 
had  notice  of  a  defect  in  order  to  make  it 
liable.  Vat4ghan  v.  Buffalo,  R.  6*  P.  R. 
Co.,  54  A^  Y.  S.  R.  782,  72  Hun  471.  25  N. 
Y.  Supp.  246.— Distinguishing  Conhocton 
Stone  Road  v.  Buffalo,  N.  Y.  &  E.  R.  Co., 
51  N.  Y.  573;  Ahem  v.  Steele,  115  N.  Y. 
203,  26  N.  Y.  S.  R.  295. 

188.  Defenses,  generally.  —  The 
question  of  the  grade  of  a  railroad  is  not  a 
proper  element  of  inquiry  upon  the  question 
whether  a  highway  has  been  restored  to  its 
former  usefulness.  People  vl  NeiO  York  C. 
6-H.  R.  R.  Co.,  74  A':  y.  302;  modifying 
12  Hun  195. 

A  railroad  corporation  is  not  relieved 
from  the  duty  imposed  upon  it  by  N.  Y. 
General  Railroad  Act  of  1850  to  restore  a 
highway  intersected  by  its  road  "to  such  state 
as  not  unneciessarily  to  have  imriited  its 
usefulness  "  by  the  fact  that  a  str  •  railway 
company  whose  road  runs  along  I'^e'Eighway 


is  obligated  to  keep  the  highway  between 
the  rails  of  its  track  in  repair.  The  duty  of 
maintaining  the  Crossing  in  propeir  condi- 
tion is  not  limited  or  restricted  by  privileges 
granted  to  or  duties  imposed  upon  others. 
Master  son  v.  New  York  C.  6^  H.R.  R.  Co., 
3  Am.^Eng.  R.  Cas.  408,  84  A^.  K.  247,38 
Am.  Rep.  510. 

180.  Non-establishment  of  per- 
manent gfdde  by  city  no  defense.— 
Where  a  company  is  sued  for  failing  to 
restore  a  street,  iis  required  by  statute,  it  is 
no  defense  that  the  city  has  not  established 
a  permanent  grade  for  the  street.  Oshkosh 
V.  Milwaukee  &-  L.  IV.  R.  Co.,  39  Am.  &» 
Eng.  R.Cas.  681,  74  Wis.  534,43  A^  iVi 
Rep.  48$. 

100.  Statute  of  limitations  no  de- 
fense.*-^  The  obligation  Impoised  upon  a 
coitlpahy  by  How.  Mich.  St.,  %  3323,  to 
restore  a  highway  to  its  former  state,  as 
near  as  may  be,  and  to  construct  suitable 
crossings  fdr  the  passage  of  teams,  continues 
until' properly  discharged.  THayer  v.  Flint 
**  P.  M.  R.  Co.,  93  Mich.  150.  53  A^.  W. 
Rip.  216. 

The  duty  imjposed  upon  railroad  compa- 
nies by  the  statute,  to  riestore  streetsor  high- 
Way*  to  their  former  state  of  usefulness,  is 
acontfnuirig  one,  and' therefore  an  action 
for  falling  to  db  so  cannot  be  barred  by  the 
statute  6{  limitations.  Hatch  v.  Syracuse, 
B.&'N.  Y.  R.  Co.,  50  Huh  64,  24  A^.  Y.  S. 
R.  35.  4.  N.  Y.  Supp.  509. 

101.  Compelling-  restoration  by 
injiihctloril — ^'A  cdmpanymay  be  coni- 
pelled  by  a' mandatory  injunction  to  restore 
a  highway  whfch  is  obstructed  by  its  track, 
as  requlfed  "by  the  statute.  Jamestown  V. 
Chicago,  S.  6~i  A':  R.  Co.,  32  Am.  &*  Eng.  k, 
Cas.  if>i,  6^  Wis.  648,  i\N.  W.  Rep.  728.— 
Distinguishing  Milwaukee  v.  Milwaukee 
A  B..  R.  Co.,  7  Wis.  85;  Sheboygan  v.  She- 
boygan &  F.  du  L.  R.  Co.,  21  Wis.  667.— 
Followed  in  Oshkosh  v.  Milwaukee  &  L. 
W.  11.  Co.,  39  Am.  &  Eng.  r;  Cas.  681,  74 
Wis.  J34.  43  N.  W.  Rep.  489. 

Where  an  action  is  ufgun  in  January,  1886, 
and  plaintiff  alleges  that  thci  Cbnstriictibn 
be^n'  In  1884.  ttnd  thdt  piaintlft  has  re- 
quebted  thecdmpftny  to  restofii^  Such'  high- 
way t!6  its  former  state,  and  that  the  riequest 
has  nbt  been  cdmplieid'wfth.  plaintiff  shows 
^^/ma/itl^// tha'j'afflpik  time  to  restore  the' 
highSf^ay  Hiii  lapsed.  '^/aniistowA'v.  CM- 


I 


I 


( 

1 

'  1 

4,     ; 

'  'i 

1'.     1  : 

'  ';  • 


<  II 


624        STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  102,  103. 


eago,  B.  &*  N.  X.  Co.,  32  Am.  &*  Eng.  R. 
Cas.  263.  69  Wis.  648.  34  A'.  W.  Rep.  728. 

And  such  action  cannot  be  defeated  by 
the  fact  that  the  city  itself  has  tlie  power  to 
do  the  work  and  recover  tlic  cost  thereof 
from  the  company.  Oshkos/i  v.  Milwauket 
4*  L.  W.  R.  Co.,  39  Am.  &»  Eng.  R.  Cas. 
681.74  Wis.  534,  43  N.  W.  AV/.  489.- Re- 
viewed IN  Muundsville  v.  Ohio  River  R. 
Co.,  37  W.  Va.  92. 

102.  Coiupclliiiff  rcBtoratioii  by 
mandnniiiH.  —  Under  Ind.  Rev.  St.  of 
1881,  §  3903,  railroad  companies  are  author- 
ized to  construct  their  tracks  over  and  across 
public  highways,  but  tliey  are  required  to 
restore  them  to  their  former  state,  and  the 
performance  of  such  duty  may  be  compelled 
by  mandamus.  Cummins  v.  Evansville  &* 
T.  H.  R.  Co.,  36  Am.  &>  Eng.  R.  Cas.  147, 
IIS  Ind.  417,  IS  Wtst.  Rtp.  4S6,  18  N.  E. 
Rep.  6. 

While  a  railroad  corporation  has  a  discre- 
tion as  to  the  manner  of  performing  the  duty 
imposed  upon  it  by  N.  Y.  General  Railroad 
Act  of  i8so,  ch.  140,  §  28,  subd.  Si  of  restor- 
ing a  highway  across  or  along  which  its 
road  has  been  constructed,  the  discretion  isa 
ministerial  one.  The  act  of  restoration  must 
be  done  ;  as  to  this  there  is  no  discretion. 
If  it  elects  a  manner  which  proves  ineffect- 
ual and  yet  it  claims  to  have  performed  its 
duty,  and  the  aid  of  the  court  is  invoked  by 
the  commissioners  of  highways  to  compel, 
by  mandamus,  the  performance,  the  court 
has  power  to  and  should  point  out  in  the  writ 
in  what  the  corporation  has  failed,  and  to 
direct  particularly  what  must  be  done  so 
that  it  may  not  fail  again.  People  ^xrel.  v. 
Dutchess  &*  C.  R.  Co..  58  A^.  Y.  152,  7  Am. 
Ry.  Rep.  10.— FoLi-OWED  IN  New  York  C. 
&  H.  R.  R.  Co.  V.  People,  12  Hun  (N.  Y.) 
195.  Reconciled  in  State  ex  rel.  v.  Day- 
ton &  S.  E.  R.  Co..  36  Ohio  St.  434.  Re- 
viewed IN  People  V.  New  York  C.  &  H.  R. 
R.  Co.,  9  Am.  &.  Eng.  R.  Cas.  i,  28  Hun 
543.  3  Civ.  Pro.  11,  2  McCar.  345;  Bell  v. 
New  York  C.  &  H.  R.  R.  Co.,  29  Hun  560. 

In  proceedings  by  mandamus  to  compel  a 
railroad  corporation  to  restore  a  highway, 
the  court  adjudged  and  commanded  that 
the  track  of  the  highway  for  travel,  at  a  cer- 
tain specified  place,  for  a  short  distance, 
should  be  changed  from  one  side  of  the 
railroad  track  to  the  other,  so  as  to  avoid 
the  necessity  and  the  danger  of  two  cross- 
ings. Held,  that  this  was  not  a  discon- 
tinuance of  the  highway,  but  that  for  all 


practical  uses  and  purposes  it  remained  the 
same,  and  that  it  was  within  the  power  of 
the  court  to  direct  the  change  to  be  made. 
J'eople  ex  rel.  v.  Dutchess  &»  C.  R.  Co.,  s8  N. 
V.  1 52,  7  Am.  Ky.  Rep.  10. 

Proceedings  by  mandamus  to  compel  a 
company  tu  reconstruct  a  public  hi(;liw;iy 
injuriously  occupied  by  it  may  be  instituted 
on  the  relation  of  the  road  commissioners 
of  the  proper  township,  acting  officially,  and 
the  consent  thereto  uf  the  attorney-general 
of  the  commonwealth  is  unnecessary.  Com. 
ex  rel.  v.  New  York,  P.  &*  0.  R.  Co.,  138  Pa. 
St.  li,  20  At  I.  Rep.  951. 

10.'}.  Liability  over  to  town 
uiulotcd  ill  UuiuageH— LiniitatioiiH.* 
— Where  a  company  is  authorized,  in  build- 
ing its  road,  to  alter  a  highway,  upon  con- 
dition that  it  restore  the  same  to  its  former 
state  of  usefulness,  if  it  fails  to  do  so, 
whereby  the  town  is  compelled  to  pay  dam- 
ages to  one  who  is  injured  by  reason  of  the 
defects  in  such  highway,  the  company  is 
bound  to  indemnify  the  town  for  the  judg- 
ment recovered  against  it,  and  for  the  costs 
and  expenses  incurred  in  defending  the 
action.  Hamden  v.  New  Haven  &*  N.  Co., 
27  Conn.  1 58.— Distinguished  in  O'Connor 
V.  Fond  du  Lac  &  P.  R.  Co.,  5  Am.  &  Eng. 
R.  Cas.  82.  52  Wis.  S26.  38  Am.  Rep.  753- 
Quoted  in  Little  Miami  R.  Co.  v.  Greene 
County  Com'rs.  31  Ohio  St.  338. 

The  obligation  resting  upon  thr  company 
to  restore  the  highway  i"<  aing  one. 

and  it  cannot  avoid  liat  .iie  town  fur 

damages  which  the  latt  ^  paid  by  show- 
ing that  the  statute  01  nitation"  would 
bar  an  action  for  the  ori^iua!  alt'  ration  of 
the  highway  which  constituted  a  juisance. 
(Elsworth,  J.,  dissenting.)  Hamden  v.  New 
Haven  6^  N.  Co.,  27  Conn.  158.— Quoted 
IN  Little  Miami  R.  Co.  v.  Greene  County 
Com'rs.  31  Ohio  St.  338. 

Where  a  company  obstructs  a  highway  in 
the  construction  of  its  track,  wliereby  a 
traveler  is  injured  and  he  recovers  damages 
against  the  town,  the  Ltter  may  recover 
over  against  the  company.  Lowell  v.  Boston 
&*  L.  R.  Co.,  23  Pick.  (Mass.)  24. 

Where  a  company,  against  which  manda- 
mus proceedings  are  instituted  to  compel 
the  restoration  of  a  road,  has  succeeded  by 
purchase  to  the  franchises,  etc..  of  another 
company  which  originally  occupied  the 
highway,  it  becomes  subject  to  the  duties 

•  See  tXtopott,  206,  241,  806-402. 


4 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  104,  105. 


625 


and  liabilities  relating  thereto  wiiict.  rested 
upon  tlic  original  company ;  nor  is  it  re- 
lieved tiierefrum  by  the  statute  of  limita- 
tions. Com.  tx  rel,  v.  Ntw  York,  P.  &*  O, 
Ji.  Co.,  138  Pa.  St.  58.  20  ////.  AV/.  951. 

104.  CoiiiietiiKtiittal  duniUtfeM  to 
abiittors.  —  The  legislature  lias  full  and 
paramount  authority  over  all  public 
highways.  And  where  it  authorizes  and 
requires  a  company,  by  its  charter,  in 
constructing  its  railway  across  streets  and 
highways  to  put  the  same  in  proper  con- 
dition and  repair  so  as  not  to  interfere  with 
public  travel,  it  is  not  a  trespasser  in  enter- 
ing thereon  for  the  purpose  of  restoring  and 
improving  the  same,  as  commanded  by  its 
charter,  and,  if  the  work  is  done  with  rea- 
sonable prudence  and  skill,  is  not  liable  for 
consequential  damages  to  owners  of  abut- 
ting land.  Robinson  v.  Grtat  Northern  R. 
Co.,  48  Minn.  445.  51  A'.  \V.  Rep.  384. 

The  work  is  subject  to  the  supervision 
and  direction  of  the  regularly  constituted 
authorities  having  control  of  such  streets  or 
highways.  But  no  such  question  is  in- 
volved where  the  court  deHnes  the  nature 
and  extent  of  the  improvement  in  a  judg- 
ment obtained  on  the  a[>plication  of  such 
authorities,  Robinson  v.  Great  Northern  R. 
Co.,  48  Minn.  445,  51  A'.  W.  Rep.  384. 

7.  Substitution  of  New  Road. 

105.  Statutory  provisions  as  to 
constructiou  of  siibHtitiited  road.— 

The  provisions  of  the  statute,  including 
those  as  to  carrying  a  highway  which  may 
be  touched,  intersected,  or  crossed  by  a  rail- 
road under  or  over  the  railroad  track,  "  as 
may  be  found  most  expedient  for  the  public 
good,"  and  as  to  making  a  change  in  the 
line  of  the  highway  where  an  embankment 
or  cut  calls  for  it,  or  it  is  desirable  with  a 
view  to  a  more  easy  ascent  or  descent,  and 
the  grant  of  authority  to  the  railroad  com- 
pany to  acquire  additional  land  for  the 
construction  of  the  road  or  highway  on  the 
new  line,  were  intended  to  preserve  to  the 
public  the  old  highway  on  the  original  sur- 
face, or  on  a  new  surface,  or  a  new  highway 
on  the  new  line.  Palatka  &*  I.  R.  R.  Co.  v. 
State,  32  Am.  &*  Eng.  R.  Cas.  igr,  23  Fla. 
546,  1 1  Am.  St.  Rep.  395,  3  So.  Rep.  1 58. 

The  meaning  of  these  provisions,  in  so  far 
as  they   relate  to   the  manner  of  the  con- 
struction of  the   railroad   (independent   of 
any  questions  which  may  arise  as  to  the  use 
7  D.  R.  D.— 40 


or  operation  of  it),  is  nothing  more  than 
that,  when  the  conditions  of  locality  or 
topography  ate  such  that  the  railroad  and 
highway  cannot  cross  or  intersect  on  the 
same  surface,  the  railroad  company  may 
pass  the  highway  over  the  railroad,  or 
under,  according  as  the  former  or  latter 
shall  be  more  for  the  public  good  i  and,  fur- 
thermore, if  it  be  that  the  conditions  are 
such  as  not  to  permit,  consistently  with  its 
practical  use,  the  grading  of  the  highway 
to  the  level  of  the  railroad  cut  or  embank- 
ment, to  authorize  a  detour  or  change  in  the 
route  of  the  highway.  Palatka  &*  I.  R.  R. 
Co.  V.  State,  32  Am.  &*  Eng,  R.  Cas.  191,  33 
Fla.  546,  1 1  Am.  St.  Rep.  395.  3  So.  Rep.  1 58. 

This  new  route  or  detour  in  the  highway, 
after  being  established  upon  land  to  be 
acquired  by  the  company,  is  to  be  main- 
tained as  other  public  hi({liways,  and  to  be 
open  as  a  public  highway,  and  not  as  a 
private  road  of  the  company.  Palatka  &* 
I.  R.  R.  Co.  V.  State,  32  Am.  &*  Eng  R.  Cas. 
191,  23  Fla.  546,  II  Am.  St.  Rep.  395,  3  So. 
Rep.  158. 

An  act  gave  to  a  company  power  to  con- 
struct its  railroad  on  any  public  road,  and 
provided  that  if  in  its  construction  it  should 
be  necessary  to  change  a  public  road,  it 
should  cause  the  same  to  be  reconstructed 
"  in  the  most  favorable  location  and  in  as 
perfect  a  manner  as  the  original  road." 
Held,  that  this  did  not  require  that  the 
making  of  the  new  road  should  precede  the 
occupying  of  the  old  one.  Danville,  //.  jS^ 
\V.  R.  Co.  V.  Com.,  73  Pa.  St.  29.— Distin- 
guishing Queen  v,  Scott,  3  Q.  B.  543; 
Queen  v.  Great  North  of  England  R.  Co.,  9 
Q.  B.  315. 

Where  a  railroad  is  laid  on  a  public  road 
the  company  thereby  becomes  liable,  under 
Pa.  Act  of  Feb.  19,  1849,  to  construct  a  new 
road  in  its  place.  The  township  in  which 
the  road  is  cannot  release  the  company  from 
its  liability  to  make  the  road.  The  town- 
ship  cannot  exercise  the  special  powers  of 
the  company  in  laying  out  tlie  new  road, 
paying  damages,  and  constructing  the  road. 
Snow  V.  Deerfield  Tp.,  78  Pa.  5/.  181. 

A  company  incorporated  subject  to  Pa. 
Gen.  Railroad  Act  of  Feb.  19,  1849,  which 
takes  a  turnpike  or  pul)lic  road  for  its  cor- 
porate purposes  incurs  the  obligation,  under 
section  13  of  that  act,  to  construct  a  sub- 
stitute road  within  a  reasonable  time  ;  and 
a  failure  to  do  so  is  a  denial  to  every  citizen 
of  the  state  of  the  use  of  a  pui>lic  highway, 


■(■:  . 


ij 

1 
J 

636 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  196-200. 


and  is  a  public  nuisance  for  which  the  com- 
pany  is  liable  to  an  indictment.  Pittsburgh, 
V.  &•  C.  H.  Co.  V.  Com.,  lo  Am.  &*  Eng. 
Ji.  Cas,  321,  101  Pa.  St.  192.— Followed 
IN  Com.  V.  Pennsylvania  R.  Co.,  117  Pa. 
St.  637. 

A  Pennsylvania  statute  provides  that  if 
appellant  company  finds  it  necessary  to 
change  the  site  of  any  turnpike  or  public 
road,  it  shall  cause  the  same  tu  be  recon- 
structed forthwith  at  its  own  expense  on 
the  most  favorable  location  and  in  as  per- 
fect a  manner  as  the  original  road.  Held, 
that  the  question  whether  a  change  of  the 
public  road  is  necessary  is  to  be  determined 
by  the  company,  subject  to  the  control  of 
the  courts  ;  and  after  it  has  supplied  a  new 
and  safr  crossing  in  place  of  an  old  one 
which  it  has  removed,  and  such  new  cross- 
ing has  been  used  by  the  public  for  several 
years,  the  supervisors  of  the  township  have 
no  authority  to  restore  the  old  crossing. 
Pennsylvania  K.  Co.'s  Appeal,  39  Am.  &* 
Efig.  R.  Cas.  685,  128  Pa.  St.  509,  18  Att. 
Rep.  522.— Distinguishing  Pennsylvania 
R.  Co.'s  Appeal,  93  Pa.  St.  150;  Pennsyl- 
vania R.  Co.'s  Appeal,  115  Pa.  St.  514. 

106.  All  thorlty  to  make  tho 
change. — The  right  to  change  the  site  of 
a  public  highway  is  not  confined  to  cases  in 
which  the  highway  is  occupied  longitudi- 
nally by  a  track,  but  exists  as  well  in  cases 
where  the  construction  or  reconstruction  of 
its  roadbed  across  a  highway  renders  such 
a  change  of  site  necessary.  Pennsylvania 
R.  Co.'s  Appeal,  39  Am.  6-  Eng.  R.  Cas.  685, 
128  Pa.  St.  509,  18  Atl.  Rep.  522. 

A  company  may  change  tlie  site  of  a 
public  road  to  avoid  f<;rade  crossings,  and 
the  necessity  is  to  be  determined,  in  the 
first  instance,  by  the  company,  in  the  exer- 
cise of  a  sounJ  discretion.  Abington  Tp. 
V.  North  Pa.  R.  Co.,  2  Pa.  Dist.  68. 

It  appeared  that  in  the  construction  of  a 
railroad  an  old  highway  was  occupied  and 
a  new  one  constructed  and  used  as  a  sub- 
stitute, for  which  the  company  purchased 
the  required  lands,  and  that  the  selectmen 
filed  at  that  time  in  the  town  cierk's  office  a 
certificate  of  the  survey  of  the  new  highway 
and  a  vacation  of  the  old  one.  Held,  that 
it  should  be  presumed  that  an  agreement 
was  entered  into  between  the  selectmeri  and 
the  company  for  a  change  in  location  of  the 
highway  agreeably  to  Vt.  Rev.  Laws,  §§  3379- 
80,  for  the  filing  of  the  certificate  could 
only  be  proper  after  the  making  of  such  an 


agreement.    Wead  v.  St.  Johnsbury  6*  L,  C. 
R.  Co.,  64  Vt.  52,  24  Atl.  Rep.  361. 

107.  Time  withiu  which  to  build 
substituted  road.— A  company  must,  if 
possible,  construct  its  road  without  any  in- 
convenience to  the  public ;  but,  if  this  can- 
not be  done,  it  must  be  constructed  witii 
the  least  possible  inconvenience.  If  a 
bridge  or  substituted  road  be  necessary  to 
prevent  the  obstruction,  the  company  must 
build  it  in  a  reasonable  time',  and  cannot 
delay  it  until  its  road  is  completed.  Louis- 
ville &'N.  R.  Co.  V. State,  3  Head(Tenn.)  523. 

198.  Acceptance  of  new  road  by 
county  and  its  effect.— Where  a  com- 
pany takes  part  of  a  highway  under  a  statute 
allowing  it  to  do  so,  but  which  requires  the 
company  to  restore  the  highway  to  its  foi- 
mer  state,  so  as  not  to  impair  its  usefulness, 
in  an  action  by  the  county  to  recover  dam- 
ages for  a  failure  to  restore  the  road  it  it 
proper  to  allow  the  company  to  prove  in 
mitigation  of  damages  that  it  caused  a  new 
road  to  be  built,  intending  the  same  to  be 
used  in  lieu  of  the  old  road,  which  new  road 
was  accepted  by  the  county.  Greenup 
County  V.  Maysville  &*  B.  S.  R.  Co.,  {Ky.) 
21  S.  W.  Rep.  351. 

100.  Effect  of  long  user  and  ac- 
quiescence.— In  order  to  make  a  crossing^ 
safer  a  railroad  company  opened  a  new  road 
some  four  rods  distant  from  the  old  one,  on 
land  belonging  to  the  commissioner  of 
highways,  who  assisted  in  the  work.  The 
new  road  continued  to  be  used  for  six  years, 
the  old  one  being  abandoned.  Held,  that 
the  old  road  had  ceased  to  be  a  highway, 
and  after  such  long  acquiescence  the  court 
would  not  order  a  change  of  the  location. 
Schermerhorn  v.  Mt,  McGregor  R.  Co.,  52 
N.  Y.  S.  R.  892.  69  Hun  512,  23  A^.  K. 
Supp.  417. 

200.  Acquisition  of  land  for  new 
road --Compensation  to  owner. — A 
railroad  company  petitioned  the  selectmen 
of  a  town  to  lay  out  a  highway,  stating 
that  in  laying  the  railroad  a  highway  had 
been  obstructed,  and  requesting  the  select- 
men to  lay  out  a  new  highway  as  a  sub- 
stitute for  the  one  taken  for  the  railroad. 
The  selectmen  laid  out  the  road  prayed  for, 
and  awarded  that  the  damages  for  the  land 
taken  for  the  highway  should  be  paid  by 
the  company.  Held:  (1)  that  the  town  was 
not  liable  to  the  landowner  for  the  dam- 
ages awarded  ;  (2)  that  if  the  laying  of  the 
road  was  valid  at  all,  it  must  *  :  regarded  u 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  2O1-204.         627 


having  been  done  for  the  accommodation  of 
the  company.  Ellis  v.  Sjvanaty,  »6  N.  H.  266. 

Whether  the  selectmen  of  a  town  have 
any  power  whatever  to  lay  out  a  highway 
as  a  substitute  for  one  taken  by  a  railroad 
in  the  course  of  its  construction,  quart. 
Ellis  V.  Swanzey,  26  N.  H.  266. 

The  right  conferred  upon  railroad  com- 
panies l>y  N.  Y.  General  Railroad  Act  of 
1850,  as  amended  by  chapter  133  of  1880,  to 
use  highways  for  the  purposes  of  their  roads 
on  obtaining  consent  of  the  supreme  court, 
is  s'ibject  only  to  the  duty  to  restore  them 
to  their  former  state,  "  or  to  such  state  as 
not  unnecessarily  to  have  impaired  "  their 
usefulness,  and  when  it  becomes  necessary 
for  the  performance  of  the  duty  of  restora- 
tion to  remove  a  highway  in  whole  or  in 
part  outside  of  its  original  limits,  the  cor- 
poration may  acquire  by  purciiase  the  lands 
required  for  the  purpose,  and  the  recon- 
structed highway  in  the  new  location  be- 
comes part  of  the  legal  highway.  Post  v. 
West  Shore  R.  Co.,  47  Am.  5-  Etig.  R.  Cas. 
322,  123  N.  V.  580,  26  N.  E.  Rep.  7,  34  A^. 
Y.  S.  R.  484;  affirmitig  50  Hun  301,  20  A'. 
Y.  S.  R.  180,  3  N.  Y.  Supp.  172. 

The  duty  of  restoration  so  imposed  car- 
ries with  it  the  necessary  powers  for  that 
purpose,  and  among  them  the  power  to 
take  lands  compulsorily  where  a  removal  or 
a  change  of  the  highway  is  necessary  ;  and 
to  accomplish  this  such  lands  must  be  ac- 
quired. People  ex  rel.  v.  Dutchess  &•  C.  R. 
Co.,  58  A^  Y.  152,  7  Am.  Ry.  Rep.  10.— 
Quoted  in  Valley  R.  Co.  v.  Bohm,  34  Ohio 
St.  114.  Reviewed  in  State  ex  rel.  v. 
Minneapolis  &  St.  L.  R.  Co.,  39  Minn.  219, 
39  N.  W.  Rep.  153;  Moundsville  v.  Ohio 
River  R.  Co..  37  W.  Va.  92. 

201.  Power  of  highway  conimis- 
sionera  and  supervisors  to  conseut 
to  substitution  of  new  road.  —  High- 
ways can  only  be  vacated  in  the  manner 
prescribed  by  statute ;  and  commissioners 
of  highways  have  no  authority  to  surrender 
the  entire  use  'of  a  highway  to  a  company 
on  condition  that  it  provide  a  new  road. 
Rice  v.  Chicago,  B.  &*  N.  R.  Co.,  30  ///. 
App.ASi. 

The  court  will  not  interfere  with  a  judg- 
ment in  favor  of  an  individual  against  a 
railroad  for  damagei^  caused  by  occupying  a 
highway  for  the  purposes  of  a  track,  thereby 
causing  a  new  road  to  be  opened  further 
away,  though  such  occupancy  be  by  consent 
of  the  commissioners,  i^nd  the  damages  for 


opening  the  new  road  are  paid  by  the  com- 
pany. Louisville,  E.  &*  St.  L.  R.  Co.  v. 
Lanter,  47  ///.  App.  339. 

Neither  one  nor  both  of  the  supervisors 
of  a  township  have  power  to  make  a  verbal 
contract  binding  on  the  township,  having 
for  its  object  the  substitution  of  a  road  for 
a  way  already  open  and  in  public  use,  npr 
to  consent  to  an  impediment  or  obstruction 
of  a  highway.  Appeal  of  North  Manheim 
Tp.,  (Pa.)  36  Am.  &>  Etig.  R.  Cas.  194,  14 

Atl.Rtj    «37- 

An  a^jreement  by  the  supervisors  of  a 
township  that  no  objection  will  be  made  to 
the  crossing  of  a  turnpike  by  a  railroad, 
provided  the  company  will  construct  a  n^w 
road  so  as  to  connect  with  a  highway  inter- 
secting the  turnpike  further  on,  is  an  act 
requiring  deliberation  and  judgment,  and 
such  agreement  made  by  a  single  supervisor 
without  the  concurrence  of  the  other  is 
void  as  against  the  township.  Appeal  of 
North  Manheim  Tp.,  (Pa.)  36  Am.  <S-  Eng. 
R.  Cas.  194,  14  Atl.  Rep.  137. 

202.  Bights  of  abutters  on  discon- 
tinuance of  old  road.  —  Where  a  com- 
pany moves  a  street  only  1 50  feet,  so  as  to 
make  a  safer  crossing  by  carrying  it  oy^r 
the  railroad  by  a  bridge,  and  the  village 
authorities  accept  the  new  street  and  discon- 
tinue the  old  one,  and  plaintiff,  who  qwns 
the  land,  is  not  deprived  of  light,  air,  or  ac- 
cess thereby,  he  is  not  entitled  to  a  manda- 
tory injunction  to  compel  the  restoration  of 
the  old  crossing,  or  to  damages.  Buchholsi 
v.  New  York.  L.  E.  6-  W.  R.  Co.,  50  A^  Y. 
S.  R.  670,  66  Hun  yj7,  21  A'.  Y.  Supp.  503. 
—Distinguishing  Story  v.  New  York  El. 
R.  Co..  90  N.  Y.  122. 

203.  Additional  compensatiqn  to 
county  for  use  of  newly  constructed 
street.— Where  any  part  of  a  public  street 
or  highway  is  washed  out  or  otherwise 
destroyed,  and  the  damage  is  repaired  by  a 
new  structure  upon  the  portion  thus  de- 
stroyed or  rendered  unfit  for  use,  this  does 
not  give  to  the  county  a  right  to  exact  ad- 
ditional compensation  from  a  railroad  com- 
pany, which,  previous  to  the  injury,  used 
the  street  or  public  highway  with  the  assent 
of  the  municipality,  where  the  railroad  com- 
pany proposes  to  make  the  same  use  of  the 
street  or  highway  after  it  has  been  repaired. 
Floyd  County  v.  Rome  St.  R.  Co.,  77  Ga.  614, 
3  S.  E.  Rep.  3. 

204.  Action  for  defects— Noitice  to 
coqp^^ny.  — The  duty  imposed  by  statute 


tl 


i 


628 


STREETS   AND   HIGHWAYS  (RAILWAYS   IN),  205-208. 


W,l 


I) 


n  t) 


upon  railroad  companies  to  restore  high- 
ways which  have  been  taken  or  obstructed 
by  their  tracks  is  a  continuing  one,  not 
affected  by  a  change  in  the  ownership  of 
the  road.  So  where  a  company  is  sued  for 
failing  to  restore  a  highway,  it  is  no  defense 
that  it  is  the  successor  of  the  original  com> 
pany,  and  had  no  notice  of  the  defect. 
Vat^han  v.  Buffalo,  R.  &>  P.  H.  Co.,  72  Hun 
471.  54  N.  V.  S.  R.  782,  25  N.  Y.  Supp.  246. 
—Distinguishing  Conhocton  Stone  Road 
V.  Buffalo,  N.  Y.  &  E.  R.  Co.,  51  N.  Y.  573  : 
Ahern  v.  Steele,  1 1 5  N.  Y.  203. 

205.  Liability  of  toivn  for  unsafe 
conditiou  of  substituted  road. — 
When  a  public  highway  has  been  taken  by 
a  company  for  the  construction  of  its  rail- 
road and  so  obstructed  as  to  be  rendered 
impassable,  without  a  substitute  therefor 
being  provided  in  the  m'>nner  required  by 
law,  it  is  not  the  duty  of  the  highway  sur- 
veyor to  contest  the  company's  right  so  to 
take  or  obstruct  the  highway,  and  hence  he 
is  not  responsible  for  any  injury  which  may 
occur  by  reason  of  its  so  doing.  Battey  v. 
Duxbury,  23  Vt.  714.— Reviewed  in  Mann 
V.  Central  Vt.  R.  Co.,  14  Am.  &  Eng.  R.  Cas. 
620,  55  Vt.  484,  45  Am.  Rep.  628. 

Where  a  company  obstructs  a  highway 
the  town  must  provide  a  suitable  byway 
for  the  public  to  pass  around  the  obstruc- 
tion, and  use  reasonable  care  to  divert  the 
travel  from  such  highway  while  it  remains 
unsafe.    Batty  v.  Duxbury,  24  Vt.  155. 

As  the  town  is  primarily  liable  to  travelers 
for  the  condition  of  public  highways,  the 
town  must  make  such  bywuy  reasonably 
safe,  though  it  is  the  duty  of  the  railroad 
company  to  make  the  byway.  If  it  fails  to 
do  so  the  town  must  discharge  the  duty, 
and  failing,  will  be  liable.  Batty  v.  Dux- 
bury, 24  Vt.  155. 

200.  Liability  over  to  town 
mulcted  in  damages.'*'— Where  a  com- 
pany fails  to  restore  a  highway,  as  required 
by  statute,  whereby  individuals  using  the 
highway  are  injured,  and  the  town  is  re- 
quired to  pay  damages,  it  may  recover  the 
same  back  from  the  company,  and  one  re- 
covery will  not  prevent  a  second.  Thus 
where  a  husband  and  wife  are  both  injured 
at  the  same  time  while  driving  on  the  high- 
way, a  recovery  by  the  town  for  damages 
that  it  was  compelled  to  pay  to  the  husband 
will  not  prevent  a  further  recovery  for  dam- 

*  See  also  antt,  103 ;  post,  300-402. 


ages  paid  to  the  wife.     Newbury  v.  Con- 
necticut 6-  R.  R.  R.  Co.,  as  Vt.  377. 

In  such  case  each  successive  recovery 
against  the  town  constitutes  a  new  cause  of 
action  against  the  company;  and  the  fact 
that  the  injury  to  the  different  persons  was 
at  the  same  time,  in  the  same  carriage,  and 
under  the  same  circumstances,  is  immaterial. 
Newbury  v.  Connecticut  6-  P.  R.  R.  Co.,  25 

Vt.  377. 

Where  a  company  fails  to  restore  a  high- 
way, and  the  town  is  compelled  to  pay 
damages  for  injuries  received  by  reason  of 
the  defective  highway,  it  may  recover  from 
the  company  not  only  the  amount  of  the 
damages  paid,  but  the  costs  and  expenses 
incurred  in  defending  the  suit,  the  company 
having  been  notified,  but  failing  to  appear 
and  defend.  Duxbury  v.  Vermont  C.  R.  Co., 
26  Vt.  751.— Criticising  Lowell  v.  Boston 
&  L.  R.  Co.,  23  Pick.  (Mass.)  24.  Quoting 
Hayden  v.  Cabot,  17  Mass.  169;  Wynn  v. 
Brooke,  5  Rawie  (Pa.)  106. 

207.  English  cases.  —  A  company 
which  lays  its  track  over  one  side  of  a  high- 
way, and  thereby  renders  the  road  danger- 
ous and  extraordinarily  inconvenient,  will 
be  restrained  by  perpetual  injunction  from 
using  the  highway  until  it  has  made  a  sub- 
stituted road.  Attorney-General  v.  IVidnes 
R.  Co.,  30  L.  T.  449.  22  IV.  R.  607. 

The  Turnpike  Act  (3  Geo.  III.,  c.  126),  or 
the  Railways  Clauses  Act,  1845,  §  16,  does 
not  place  a  railway  company  in  the  position 
of  trustees  of  a  substituted  road  made  by  it, 
so  as  to  transfer  to  it  the  soil  of  the  old  road 
which  had  ceased  by  the  diversion  to  form 
part  of  the  turnpike  road.  Salisbury  v. 
Great  Northern  R.  Co.,  5  C.  B.  N.  S.  174,  5 
Jur.  N.  S,  70,  28  X..  /.  C.  P.  40. 

ly.    BEMEDIES  or  ABVTTIirO  0WMBB8 
I.  In  General.    Election  of  Remedies. 

208.  When  confined  to  the  statu- 
tory remedy.— Where  a  street  is  taken 
by  a  company,  a  party  entitled  to  use  and 
enjoy  such  street  cannot  pursue  the  statu- 
tory remedy,  but  must  sue  for  damages  for 
a  consequential  injury.  Protzman  v.  In- 
dianapolis &*  C.  R.  Co.,  9  Ind.  467  —Criti- 
cised IN  Adams  v.  Chicago,  B.  &  N.  R.  Co., 
36  Am.  &  Eng.  R.  Cas.  7,  39  Minn.  286^  39 
N.  W.  Rep.  629,  I  L.  R.  A.  493.  Distin 
GUISHED  in  Portland  &  W.  V.  R.  Co.  v. 
Portland,  27  Am.  &  Eng.  R.  Cas.  353,  14 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  209-211. 


629 


V.  Gwi- 

recovery 

cause  of 

the  fact 

sons  was 

iage,  and 

material. 

Co.,  25 


Orcg.  1 88;  Slatten  v.  Des  Moines  Valley  R. 
Co..  29  Iowa  148.  Quoted  in  Cox  v.  Louis- 
ville, N.  A.  &  C.  R.  Co..  48  Ind.  178. 

Parties  who  own  the  fee  in  land  on  which 
is  ii  highway  cannot  enjoin  a  railroad  com- 
pany from  condemning  it  for  its  road, 
though  they  may  he  specially  injured  by 
obstructing  the  highway.  Their  remedy  is 
to  make  themselves  parties  to  the  eminent 
domain  proceeding,  and  therein  prove  their 
damages.  Conner  v.  Covington  Transfer  R. 
Co.,  (k'y.)  19  S.  IV.  Kep.  597. 

Under  N.  Mex.  Comp.  Laws.  §  2665,  sub- 
section 5.  an  abutting  owner  is  not  deprived 
of  his  right  to  damages  for  the  construction 
of  a  railroad  in  a  street,  whereby  the  street 
is  diverted  from  the  iis"  for  which  it  was 
originally  intended.  New  Mexican  R.  Co.  v. 
Hendricks,  (N.  Mex.)  30  Pac.  Rep.  901. 

Where  a  company  does  not  enter  upon  a 
street  under  statutory  authority,  but  under 
the  license  of  a  city,  an  abutter  is  not  con- 
fined to  the  statutory  remedy,  but  may  main- 
tain an  action  at  law  for  damages.  White 
v.  Northwestern  N.  C.  R.  Co.,  56  Am.  &* 
Ens:^.  R-  Cas.  706.  I13  M  Car.  610,  18  S.  E. 
Rep.  330. 

200.  Election  of  remedies.  --  An 
abutting  owner  may  maintain  an  action 
against  a  company  which  wrongfully  builds 
its  track  upon  the  street,  and  where  there  is 
no  waiver  or  estoppel  he  may  maintain 
ejectment  or  an  injunction.  Porter  v.  Mid- 
land R.  Co.,  46  Am.  &*  Eng.  R.  Cas.  70,  125 
Ind.  476,  2S  N.  E.  Rep.  556. 

But  where  such  owner  stands  by,  without 
objecting,  until  the  rights  of  the  public  and 
third  parties  have  intervened,  he  may  main- 
tain neither  ejectment  nor  an  injunction, 
hut  may  resort  to  an  action  for  damages, 
which  must  be  brought  within  six  years 
from  the  completion  of  the  grade,  or  it  will 
be  barred  by  the  statute  of  limitations,  which 
limits  to  six  years  actions  for  injuries  to  real 
property.  Porter  v.  Midland  R.  Co.,  46  Am. 
6-  Eng.  R.  Cas.  70,  125  Jnd.  476,  2^  N.  E. 
Rep.  556. 

Where  a  company  enters  upon  and  con- 
structs its  road  upon  a  street,  thereby  re- 
ducing Its  width,  and  it  does  not  appear 
that  It  entered  under  any  statutory  author- 
ity, but  only  by  the  license  of  the  city,  an 
abutting  property  owner  who  is  damaged 
thereby  may  maintain  a  common-law  action 
for  damages,  to  be  assessed  up  to  the  time 
of  the  trial,  or  may  sue  for  permanent  dam- 
ages inflicted  by  the  location  and  construc- 


tion of  the  road,  and  by  so  doing  confer 
upon  defendant  an  easement  to  occupy  the 
street,  as  far  as  such  abutter  is  concerned. 
Whitt  v.  Northwestern  N.  C.  R.  Co.,  56  Am. 
&*  Eng.  R.  Cas.  706, 1 13  A'l  Car.  tio.tSS.E. 
Rep.  330.— Approving  Story  v.  New  York 
El.  R.  Co.,  90  N.  Y.  122 ;  Lahr  v.  Metropoli- 
tan El.  R.  Co.,  104  N.  Y.  268.  Quoting 
Adams  v.  Chicago,  B.  &  N.  R.  Co.,  39  Minn. 
286,  39  N.  W.  Rep.  629.  I  L.  R.  A.  493. 

210.  Payment  of  damages  assessed 
compels  diseoiitinnauce  of  action.— 
Payment  by  the  company,  and  acceptance 
by  the  landowner,  of  damages  assessed  and 
awarded  to  the  latter  for  the  obstruction  of 
a  public  road,  compel  the  discontinuance  by 
him  of  an  action  to  restram  the  obstruction 
as  a  public  nuisance.  The  damages  are  sup- 
posed to  cover  his  private  inconvenience; 
for  the  public  inconvenience,  public  officers 
must  sue.  Appeal  of  Campbell,  (Pa.)  1 2  Atl. 
Rep.  843. 

211.  Liability  of  city  or  town  to 
abutting  owner.* — Whether  a  munici- 
pal corporation  would  be  liable  to  a  citizen 
for  a  nuisance  committed  by  an  authorized 
railroad  company,  qtiare.  Colorado  C.  R. 
Co.  V.  Mollandin,  4  Colo.  1 54. 

A  city  does  not  become  liable  to  abutting 
owners  by  passing  an  ordinance  giving  to 
a  railroad  company  permission  to  use  the . 
streets  for  the  purposes  of  its  road.    Denver 
V.  Bayer,  7  Colo.  1 13,  2  Pac.  Rep.  6. 

If  it  was  intended  by  the  ordinance  to 
confer  upon  the  company  a  right  to  use  the 
street  without  compensation  to  adjoining 
owners,  where  permanent  injury  results  from 
such  use  the  ordinance  is,  in  this  respect, 
tdtra  vires  and  void.  The  relation  of 
principal  and  agent  does  not  exist  in  such 
case.  Denver  v.  Bayer,  7  Colo.  1 1 3,  2  Pac. 
Rep.  6.— Distinguishing  Stack  v.  East  St. 
Louis,  85  III.  377. 

The  liability  in  such  case  is  against  the 
company.  Sorensen  v.  Greeley,  10  Colo.  369. 
1 5  Pac.  Rep.  803.  Burkam  v.  Ohio  d*  M. 
R.  Co.,  43  Am.  <S»  Etig.  R.  Cas.  153.  122  Ind. 
344.  23  N.  E.   li'ep.  799. 

Where  a  company  is  authorized  by  ordi- 
nance to  build  its  road  within  a  part  of  a 
street  which  is  thereby  legally  vacated,  the 
city  cannot  bv.  held  liable  to  a  lot  owner 
whose  property  is  not  adjacent  to  the 
vacated  street  for  any  act  of  the  company 
not   authorized  by  such   ordinance.    East 

*  See  also  post,  236. 


II 


G30 


STREETS   AND   HIGHWAYS   (RAILWAYS  IN),  212. 


l^■ 


M> 


U  i 


S/.  Lout's  V.  O'Flynn,  119  ///.  200,  10  A',  E. 
Rep.  39S. 

A  city  of  the  second  class,  having  power 
by  its  charter  "  to  provide  for  the  passage 
of  railways  through  tlie  streets,"  gave  per- 
mission to  a  company  to  occupy  one  of  the 
streets  to  its  entire  width.  Held,  that  in  the 
absence  of  an  express  statute  making  the 
city  responsible,  it  was  not  liable  to  an 
adjacent  lot  owner  for  the  damages  to  his 
lots  caused  by  such  occupation.  Hedrick 
v.  Ola  the,  30  Kan.  348,  i  Pac.  Rep.  118. 

Unless  tlicy  are  such  as  would  not  have 
resulted  if  the  road  had  been  properly  con- 
structed and  operated.  Swenson  v.  Lexing- 
ton, t^  Mo.  157- 

A  section  in  a  charter  provided  that 
"private  property  may  be  taken  for  public 
use,  or  for  the  purpose  of  giving  the  right 
of  way,  or  other  privilege,  to  any  railroad 
company ;  but  in  every  case  tlie  city  shall 
make  the  person  or  persons  whose  property 
shall  be  taken  or  injured  thereby  adequate 
compensation."  Held,  that  this  did  not 
make  the  city  liable,  where  its  only  action 
was  giving  permission  to  occupy  the  street. 
Hedrick  v.  Olathe,  30  Kan.  348,  i  Pac. 
Rep.  118. 

If  a  city  has  authority  to  grant  a  right  of 
way  over  its  streets  to  railroads,  it  incurs  no 
liability  by  reason  of  the  fact  that  a  company 
authorized  by  it  to  build  and  operate  its 
road  upon  a  street  has  so  constructed  an 
embankment  in  the  street  as  to  cause  a  pond 
of  water  to  be  formed  upon  adjacent  land, 
provided  the  embankment  conforms  to  the 
established  grade  of  the  street  and  is  other- 
wise so  constructed  as  to  cause  no  damage 
or  inconvenience  beyond  that  necessarily 
occasioned  by  the  appropriation  of  a  portion 
of  the  street  for  the  purpose.  Swenson  v. 
Lexington,  69  Mo.  1  $7. 

Though  a  city  is  primarily  liable  to  a 
property  owner  for  injury  to  his  property 
caused  by  the  improper  construction  of  a 
railroad  in  the  streets,  the  company  is  also 
liable  to  him.  Swenson  v.,  Lexifigton,  69 
Mo.  157. 

2.  Action  at  Law. 

212.  IVlien  an  action  will  lie, 
generally.*  —  When  injury  is  caused  to 
adjacent    property    by  excavations  in  the 

*  Damages  to  adjoining  owners  for  establish- 
ing railroad  on  highway,  see  note,  4  Am.  St. 
Rep.  403. 


streets  made  for  railroad  purposes,  an  action 
for  damages  lies  against  the  railroad  com- 
pany and  the  construction  company  which 
undertook  to  build  the  road,  although  the 
work  was  in  fact  done  by  a  subcontractor ; 
and  it  is  not  necessary  to  show  that,  in  the 
performance  of  the  work,  he  conformed  to 
the  grade  fixed  by  the  railroad  engineers. 
Alaban'a  Midland  R.  Co.  v.  Coskry,  92  Ala. 
254,  9  So.  Rep.  202. 

Defendant  company  was  authorized  by 
Act  of  Congress  of  May  21,  1872,  to  lay  its 
track  along  a  certain  street  in  the  city  of 
Washington,  upon  paying  any  damages  sus- 
tained by  property  owners.  If  the  company 
could  not  agree  with  the  owner,  the  damages 
were  to  be  assessed  by  a  jury  ;  but  it  pro- 
ceeded to  lay  its  track  without  complying 
with  the  statute.  Held,  that  an  abutting 
owner  might  maintain  an  action  on  the  case 
against  the  company,  and  recover  all  the 
damages  actually  resulting  to  his  property; 
but  whether  the  action  should  be  at  common 
law  without  the  statute,  not  decided.  Dick- 
son V.  Baltimore  &*  P.  R.  Co.,  3  MacArth, 
{D.  C.)  362. 

The  act  of  municipal  authorities,  sanc- 
tioned by  the  legislature,  gives  to  a  company 
the  right  to  use  a  street.  Held,  that  the 
failure  by  the  legislature  to  provide  for  the 
assessment  of  damages  by  way  of  compensa- 
tion to  the  property  owners  on  said  street 
did  not  take  away  the  right  of  the  parly  to 
his  suit  at  law  for  d.images,  under  Ga.  Code, 
§  2692.  South  Carolina  R,  Co.  v.  Steiner,  44 
Ga.  546,  3  Am.  Ry.  Rep.  86. 

Where  a  company  lays  its  track  across  a 
highway  leading  to  plaintiff's  place  of  busi- 
ness and  near  thereto,  and  constructs  it  in 
such  a  manner  as  to  cause  a  diversion  of 
travel  and  consequent  diminution  in  plain* 
tiff's  business,  he  may  recover  therefor. 
Park  V.  Chicago  «S-  S.  tV.  R.  Co.,  43  /owa 
636,  14  Am.  Ry.  Rep.  489. 

In  plaintifl's  petition  it  was  alleged  that  a 
company  built  its  tracks  over  a  street  of  a 
city  of  the  second  class  in  such  a  way  as  to 
render  the  street  wholly  useless  to  him  as  a 
means  of  access  to  and  from  his  lots,  which 
abutted  on  the  street ;  that  shortly  after- 
wards the  railroad  and  franchises  of  that 
company  were  sold,  under  a  decree  of  fore- 
closure, to  another  company,  which  com- 
pany had  since  operated  the  road,  and  had 
continued  the  obstruction  and  nuisance, 
and  thereby  permanently  deprived  him  of 
all  access  to  the  street  from  his  property ; 


STREETS   AND   HIGHWAYS  (RAILWAYS   IN),  2ld. 


C3l 


that  he  had  never  received  any  compensation 
on  account  of  the  injury  sustained  by  reason 
of  the  appropriation  of  the  street,  and  there 
had  been  no  consent  to  the  appropriation  or 
waiver  of  the  claim  for  damages.  Held:  (i) 
that  a  cause  of  action  was  stated  in  favor  of 
plaintiff  against  the  purchasing  company, 
and  this  although  it  was  conceded  that  the 
road  was  properly  and  skilfully  constructed  ; 
(2)  that  plaintiff  was  entitled  to  recover  his 
diimages  for  the  permanent  appropriation 
of  the  street  in  front  of  his  property,  although 
It  was  accessible  from  another  street.  Ft. 
Scott,  W.  &*  W.  Ji.  Co.  v.  Fox,  40  Am.  6- 
Eng,  K.  Cas.  331,  42  Kan.  490,  22  Pac.  Rep. 
583.— Distinguishing  Central  Branch  U. 
P.  R,  Co.  V.  Twine.  23  Kan.  585. 

Where  a  railroad  track  has  been  laid  in  a 
public  street  without  authority,  any  adjacent 
proprietor  who  has  not  consented  to  such 
use  is  entitled  to  damages  for  such  injury 
as  he  may  have  suffered  in  consequence 
thereof.  It  is  for  a  jury  to  determine  the 
damages  to  an  adjacent  proprietor  from  the 
malicious  and  unnecessary  operation  of  a 
railroad  in  the  public  street.  Grand  Rapids 
&•  I.  R.  Co.  v.  Heisel,  10  Am.  &*  En^.  R.  Cas. 
260,  47  Mich.  393,  II  N.   W,  Rep.  212. 

The  unauthorized  occupancy  of  a  high- 
way by  a  company  for  its  track  is  actionable 
if  any  actual  damage  ensues  to  adjacent 
owners,  whether  indictable  or  not.  Grand 
Rapids  6-  /.  /?.  Co.  v.  Heisel.  10  A'  't* 
Eng.  R.  Cas.  260,  47  Mic/t.  393,  11  A  ^. 
Rep.  212.  New  Orleans,  J.  6-  G.  N.  R.  Co. 
v.  Moye,  39  Miss.  374.  —  Distinguishing 
Tcgarden  v.  McBean,  33  Miss.  283. 

Where  an  abutting  owner  sues  a  company 
for  raising  an  embankment  in  the  street  in 
front  of  his  premises,  it  is  proper  to  charge 
the  jury  that  if  the  company  restored  the 
street  to  its  former  state,  or  to  such  state  as 
not  unnecessarily  to  impair  its  usefulness, 
then  plaintiff  cannot  recover,  but  tluit  other- 
wise he  may.  Corey  v.  Buffalo,  C.  &*  N. 
Y.  R.  Co.,  23  Barb.  (X.  Y.)  482. 

Under  N.  Y.  Act  of  1880,  ch.  147,  which 
permitted  defendant  to  agree  with  commis- 
sioners, appointed  by  the  act  on  behalf  of 
the  city  of  Rochester,  upon  a  plan  to  elevate 
its  tracks  along  and  across  the  city  streets 
and  to  close  up  streets,  etc.,  a  portion  of 
a  street  upon  which  plaintiff's  premises 
abutted  was  discontinued,  and  defendant, 
having  previously  obtained  title  to  the  fee  of 
the  street,  erected  thereon  an  embankment 
about  fourteen  fert  high,  upon  winch  it  laid 


its  tracks,  leaving  a  space  between  it  and, 
said  premises  so  narrow  as  not  to  admit  of 
the  approach  of  a  team  and  carriage  to 
them.  Plaintiff's  premises  were  used  and 
occupied  as  a  hotel  and  boarding  house. 
In  an  action  to  recover  damages,  upon  these 
facts  appearing,  the  court  directed  a  verdict 
for  defendant.  Held,  error;  that  plaintiff 
established  a  right  to  recover,  and  the  ques- 
tion of  damages  should  have  been  sub- 
mitted to  the  jury.  Egerer  v.  New  York  C. 
&•  H.  R.  R.  Co..  50  Am.  &-  Eng.  R.  Cas. 
228.  130  N.  Y.  108,  29  A'.  E.  Rep.  95,  41  A'. 
Y.  S.  R.  488  ;  reversing  49  Hun  605,  17  A^. 
Y.  S.  R.  225,  2  /V.  Y.  Supp.  69,  —  Approv- 
ing Reining  v.  New  York,  L.  &  W.  R.  Co., 
128  N.  Y.  157.  Distinguishing  Fobes  w. 
Rome,  W.  &  O.  R.  Co.,  121  N,  Y.  505; 
Kane  v.  New  York  El.  R.  Co.,  125  N.  Y. 
165;  Radcliff  7/.  Mayor,  etc.,  of  Brooklyn,  4 
N.  Y.  195  ;  Coster  v.  Mayor,  etc..  of  Albany, 
43  N.  Y.  399:  Fearing  v.  Irwin.  55  N.  Y. 
490;  Stetson  V.  Faxon,  19  Pick.  (Mass.)  147. . 

A  company,  whose  ciiarter,  granted  be- 
fore the  adoption  of  the  Pa.  Constitution  of 
1874,  allowed  it  to  exercise  the  right  of 
eminent  domain,  is  liable  in  damages  to  the 
owner  of  property  whose  use  of  the  adjoin- 
ing street  is  impaired  by  the  sliifting  or  re- 
laying of  its  tracks.  Philadelphia  &-  R.  R. 
Co.  V.  Patent,  (Pa.)  5  Atl.  Rep.  747.— Quot- 
ing Monongahela  Nav.  Co.  v.  Coon,  6  Pa. 
St.  382. 

Under  the  Texas  Bill  of  Rights,  which 
provides  that  "  no  person's  property  shall 
be  taken,  damaged,  or  destroyed  for,  or  apr 
plied  to,  public  use  without  adequate  com- 
pensation being  made,"  an  abutting  owner 
may  recover  damages  where  his  property 
has  been  injured  by  reason  of  a  railroad 
being  constructed  and  operated  in  the 
street,  though  no  part  of  the  property  is 
taken.  Be/t  Line  St.  R.  Co.  v.  Crabtree.  a 
TiX.  App.  (Civ.  Cas.)  579.— Quoting  Gott- 
schaik  V.  Cliicago,  B.  &  Q.  R.  Co.,  14  Neb. 
550;  Burlington  &  M.  R.  R.  Co.  v.  Rein- 
hi.ckle,  IS  Neb.  27c,.— Gulf .  C.  &*  S.  F.  R. 
Co.  v.  Graves,  10  Atn.  6-  Eng.  R.  Cas.  199, 
I  Te.r.  App.  (Civ.  Cas.)  301. 

213.  Wlicn  remedy,  if  any,  is  at 
law.*  —  Where  a  company  under  authority 
from  a  city  has  located  its  road  upon  a 
public  street,  and  is  constructing  the  same, 
a  court  of  equity  wijl  not  entertain  a  bill  to 
restrain  the  operation  of  the  road  until  the 


^  Sue  also /0r/,  221. 


632 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  214. 


t  ■ 
I 


damages  to  an  abutting  lot  owner  are  ascer- 
tained and  paid,  but  will  leave  him  to  his 
remedy  at  law.  Stetson  v.  Chicago  &*  E.  R. 
Co..  71  III.  7 A. 

A  court  of  equity  will  not  enjoin  the  use 
of  a  railroad  track  upon  a  public  street 
until  the  adjoining  lot  owners'  damages  are 
paid,  and  this  is  so  even  where  the  railroad 
company  is  insolvent.  Peoria  &*  Jt.  I.  R. 
Co.  V.  Schertz,  84  ///.  135, 

A  court  of  equity  will  not  undertake  to 
control  by  injunction  the  use  of  a  street  by 
a  railroad  company,  or  tlie  manner  of  laying 
its  track,  or  the  manner  of  operating  its 
road,  for  the  reason  that  the  power  of 
controlling  streets  is  vested  in  municipal 
authorities,  and  the  courts  cannot  supervise 
the  exercise  of  such  power  at  the  suit  of  the 
people.  Cairo  <S>»  V.  R.  Co.  v.  People,  92 
///.  170. 

Any  expected  damages  that  may  be  sus- 
tained by  property  owners  in  a  city  by 
reason  of  the  construction  of  a  railroad 
track  under  the  license  of  the  city  holding 
the  fee  of  the  street  must  be  sought  in  an 
action  at  law.  Equity  will  not  interfere. 
Truesdale  v.  Peoria  Grape  Sugar  Co.,  5  Am. 
&•  Eng.  R.  Cas.  248,  10 1  ///.  561. 

Where  a  railroad  track  is  laid  down  in 
a  street,  by  authority  of  the  city  council,  to 
connect  a  private  manufacturing  establish- 
ment with  other  railroad  tracks  running 
through  such  street,  although  such  connect- 
ing track  may  be  constructed  entirely  with 
the  means  provided  by  the  owners  of  the 
establishment,  it  becomes  "a  public  high- 
way," within  the  meaning  of  III.  Const, 
art.  It,  §  12,  giving  to  the  city  council  the 
right  to  devote  the  portion  of  the  street  to 
that  use ;  and  the  remedy  of  a  person  in- 
jured thereby  is  at  law,  and  not  in  equity. 
Par  tin  v.  Mills,  11  ///.  App.  396.— Follow- 
ing Truesdale  v.  Peoria  Grape  Sugar  Co., 
loi  III.  561. 

214.  Plaiiitiif  may  sue  if  specially 
injured. — A  private  individual  may  main- 
tain an  action  because  of  an  obstruction  of  a 
public  street,  where  such  obstruction  pecul- 
iarly affects  him,  although  it  does  not  affect 
the  general  public.  Chicago,  St.  L.  &* P.  R. 
Co.  V.  Eisert,  127  /«</.  156,  26  J\l.  E.  Rep. 
759.  Harvey  v.  Georgia  Southern  &*  E.  R. 
Co.,  56  Am.  &*  Eng.  R.  Cas.  630,  90  Ga.  66, 
15  S.E.  Rep.  783.  Patterson  v.  Detroit,  L. 
&»  N.  R.  Co.,  19  Am.  6^  Eng  R.  Cas.  41 5,  56 
Mich.  172,  22  A'.  W.  Rep.  260.  Attorney- 
General  ex  rel.  v.  Morris  Sf  E.  R.  Co.,  19  A' 


/.  Ef.  386 ;  reversal  in  19  N.  /.  Eg.  575. 
Gulf,  C.  6-  S.  E.  R.  Co.  v.  Eddins,  60  Tex. 
656.— Approving  Pumpelly  v.  Green  Bay 
&  M.  Canal  Co.,  13  Wall.  (U.  S.)  166.— Dis- 
tinguished IN  Texas  &  S.  R.  Co.  v. 
Meadows,  39  Am.  &  Eng.  R.  Cas.  29,  73 
Tex.  32,  3  L.  R.  A.  565,  1 1  S.  W.  Rep.  145. 
Followed  in  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Bock,  63  Tex.  245.  Quoted  in  Columbus, 
H,  V.  &  T,  R.  Co.  V.  Gardner.  32  Am.  & 
Eng.  R.  Cas.  243,  45  Ohio  St.  309,  11  West. 
Rep.  264,  13  N.  E.  Rep.  6^.— Gulf,  C.  <S-  S. 

F.  R.  Co.  V.  Bock,fii  TVj:.  245.— Following 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Eddins.  60  Tex. 
656.—  Wood  V.  Stourbridge  R.  Co.,  16  C.  B. 
N.  S,  222.  Brown  v.  Toronto  &*  N.  R.  Co., 
26  U.  C.  C.  p.  206.— Reviewed  in  Murphy 
V.  Grand  Trunk  R.  Co.,  1  Ont.  619. 

And  the  company  cannot  defend  on  the 
ground  that  it  had  authority  from  the  city 
to  lay  the  track  or  make  the  obstruction. 
Ford  V.  Santa  Cruz  R.  Co.,  59  Cal.  290. 
Frith  V.  Dubuque,  45  Iowa  406.  Central 
Branch  U.  P.  R.  Co.  v.  Twine,  23  Kan. 
585.— Following  Atchison  &  N.  R.  Co.  v. 
Garside,  10  Kan.  552;  Venard  v.  Cross,  8 
Kan.  248.— Quoted  in  Ottawa,  O.  C.  &  C. 

G.  R.  Co.  V.  Larson,  40  Kan.  301. — Gott- 
schalk  V.  Chicago,  B.  &*  Q.  R.  Co.,  14  Am.&* 
Eng.  R.  Cas.  157,  14  AV^.  550,  16  A'.  IV. 
Rep.  475.— Quoting  Rigneyr/.  Chicago,  102 
III.  64.  Reviewing  Beckett  v.  Midland  R. 
Co.,  L.  R.  3  C.  P.  82 ;  Mollandin  v.  Union 
Pac.  R.  Co..  14  Fed.  Rep.  394.— Applied 
IN  Atchison  &  N.  R.  Co.  v.  Boerner,  34 
Neb.  240.  Followed  in  Republican  Valley 
R.  Co.  V.  Fellers,  20  Am.  &  Eng  R.  Cas. 
256,  i6  Neb.  169.  Quoted  in  Omaha  Belt 
R.  Co.  V.  McDermott,25  Neb.  714,41  N.  W. 
Rep.  648. 

Nor  because  it  has  legislative  permission. 
Gulf,  C.  &*  S.  F.  R.  Co.  V.  Fuller,  22  Am.  &» 
Eng.  R.  Cas.  154,  63  Tex.  467. 

Provided  the  railroad  be  constructed  in 
a  careless,  improper,  negligent,  or  unlawful 
manner.  Cain  v.  Chicago.  R.  I.  &*  P.  R. 
Co.,  54  Iowa  255,  3  A^.  W.  Rep.  736.  6  N.  fV. 
Rep.  268.  McLauchlin  v.  Charlotte  &»  S.  C. 
R.  Co.,  5  Rich.  (So.  Car.)  583. 

It  is  no  answer  for  unlawfully  obstructing 
an  alley  that  new  and  increased  custom  will 
result  to  plaintifl's  business  by  reason  of  the 
obstruction  itself  (the  same  being  a  depot  to 
be  placed  across  the  alley),  and  other  im< 
provements  which  will  be  erected  by  the 
company  at  and  near  the  point  where  the 
flop-    is  to  be  Iflcated  and  maintained ;  nor 


STREETS   AND    HIGHWAYS   (RAILWAYS   IN),  215. 


C33 


S7S. 

Tex. 

Bay 

-Dis- 


can  any  increase  in  the  value  of  plaintiff's 
property,  anticipated  as  a  probable  cfTect 
of  the  company's  new  improvements  and 
works,  be  taken  into  the  account  as  a  set- 
of!  against  injury  to  business.  Harvey  v. 
Georgia  Southern  &*  F.  R.  Co.,  56  Am. 
&*  Eng.  R.  Cat.  630,  90  Ga.  66,  15  S.  E. 
Rep.  783. 

The  court  erred  in  charging  the  jury  in 
conflict  with  the  principles  above  announced, 
the  company  having  admitted  at  the  trial 
that  it  claimed  no  authority  of  law  for  clos- 
ing the  alley,  and  that  closing  the  same  was 
a  nuisance.  Harvey  v.  Georgia  Southern  &* 
F.  R.  Co.,  56  Am.  &*  Eng.  R.  Cas.  630,  90 
Ga.  66,  155.  E.  Rep.  783. 

It  is  not  necessary  that  a  portion  of  a  lot 
should  actually  have  been  taken  by  a  com- 
pany in  order  to  entitle  the  owner  to  dam- 
ages for  the  obstruction ;  but  if  access  to  and 
egress  from  the  property  have  been  cut  off 
by  the  construction  of  a  railroad,  the  owner 
suffers  a  peculiar  and  special  injury,  for 
which  he  is  entitled  to  compensation.  Leav- 
enworth. N.  &*  S.  R.  Co.  v.  Curtan,  56  Am. 
&*Eng.  R.  Cas.  636,  51  Kan.  432,  33  Pac. 
Rep.  297.  Gulf,  C.  5-  S.  F.  R.  Co.  v.  Graves, 
10  Am.  «S-  Eng.  R.  Cas.  199,  i  Tex.  App. 
{Civ.  Cas.)  301.— Quoting  Houston  &T.  C. 
R.  Co.  V.  Odum,  53  Tex.  343. 

It  is  immaterial  to  inquire  in  whom  the 
fee  to  the  street  is  vested  when  it  is  shown 
that  it  wasdedicated  to  the  use  of  the  public, 
and  that  complainant,  as  the  owner  of  adja- 
cent property,  has  an  easement  and  a  sub- 
stantial and  valuable  right  in  the  street.  In 
every  such  case,  he  who  sustains  special 
damage  by  the  construction  of  a  railway 
along  the  street  has  a  right  of  action,  no 
matter  where  the  fee  is  vested.  Gulf,  C.  &* 
S.F.R.  Co.\.Eddins,  60  Tex.  050.-  FOL- 
LOWED IN  Gulf,  C.  &  S.  F.  R.  Co.  V.  Bock, 
63  Tex.  2\^.—Gulf,  C.  &*  S.  F.  R.  Co.  v. 
Bock,  63  Tex.  245.— Following  Gulf,  C.  & 
S.  F.  R.  Co.  V.  Eddins,  60  Tex.  656. 

210.  Where  no  notion  will  He.*— 
(i)  In  genera/.— Where  a  railroad  is  con- 
structed according  to  law,  and  on  the  estab- 
lished grade  of  a  street,  an  abutting  lot 
owner  cannot  recover  damages  because  his 
lot  is  rendered  inaccessible  and  surface  water 
is  prevented  from  running  off.  Notting- 
ham V.  Baltimore  &»  P.  R.  Co.,  3  MacArth. 
(D.  C.)  J17. 

*  When  injury  to  abutting  owners  for  use  of 
street  for  railway  purposes  is  damnum  absque 
injuria,  see  notes,  a  L.  R.  A.  59  ;  5  Id.  372. 


It  is  incumbent  upon  a  property  owner 
who  seeks  to  recover  damages  for  the  con- 
struction of  a  railroad  in  a  street  to  show 
that  the  additional  burden  caused  injury  to 
his  property.  Where  there  are  no  damages 
there  can  he  no  recovery.  Burkam  v.  Ohio 
&>  M.  R.  Co.,  43  Am.  &*  Eng.  R.  Cas.  153, 
122  Ind.  344,  23  N.  E.  Rep.  799. 

A  railroad  was  built  on  ground  owned  by 
the  company  along  one  side  of  a  street,  but 
the  roadbed  encroached  a  little  upon  the 
street,  though  the  ties  did  not  overlap  it. 
Held,  that  such  encroachment  would  give 
no  right  to  damages  to  a  property  owner 
on  the  other  side  of  the  street.  Rinard  v. 
Burlington  S-  IV.  R.  Co.,  66  foiva  440,  23 
N.   IV.  Rep.  914. 

If  land  of  plaintiff  over  which  there  is  an 
established  highway  is  taken  by  a  company 
under  its  charter,  no  action  at  law  is  main> 
tainable  for  such  taking.  Whittieer  v. 
Portland  &*  K.  R.  Co.,  38  Me.  26. 

The  lawful  occupation  of  a  street  by  a 
company,  by  laying  a  track  upon  its  surface 
and  running  engines  and  trains  thereon  in 
the  usual  manner,  will  not  entitle  abutting 
property  owners  to  damages  for  incidental 
injuries  thereby  occasioned.  Botto  v.  Mis- 
souri Pac.  R.  Co.,  II  Mo.  App.  589. 

For  injuries  resulting  from  the  violation 
or  destruction  of  public  rights,  in  cases 
where  no  private,  individual  right  is  injur- 
iously affected,  no  private  action  can  be 
maintained.  Dodge  v.  Pennsylvania  R.  Co., 
36  Am.  &»  Eng.  R.  Cas.  180,  43  A^.  /.  Eq. 
351,  ic  Cent.  Rep.  655,  11  Atl.  Rep.  751 ;  a/- 
firmed  in  45  A^.  /.  Eq.  366,  19  Atl.  Rep.  622. 

Exce[)t  in  the  instances  where  statutory 
provision  to  the  contrary  exists,  the  law 
gives  no  compensation  for  losses  resulting 
from  the  surrender  of  public  rights.  Dodge 
V.  Pennsylvania  R.  Co.,  36  Am.  &*  Eng.  R. 
Cas.  180,  43  N.J.  Eq.  351, 1  o  Cent.  Rep.  655, 
1 1  Atl.  Rep.  751;  affirmed  in  45  N.J.  Eq.  366, 
19  Atl.  Rep.  622. 

(2)  Where  the  road  is  authorized.  —  A 
company  authorized  by  municipal  law  to 
operate  its  road  through  or  across  a  street 
is  not  liable  in  a  common-law  action,  except 
for  injuries  done  wantonly  or  without  rea- 
sonable care.  So  held,  in  an  action  by  an 
abutting  hotel  keeper  to  recover  for  dam- 
age from  engine  smoke,  jar,  and  noise. 
Colorado  C.  R.  Co,  v.  Mollandin,  4  Colo.  1 54, 
—  Approving  Radcliff  v.  Mayor,  etc.,  of 
Brooklyn,  4  N.  Y.  195;  Bellinger  v.  New 
York  C.  R.  Co.,  23  N.  Y.  42 ;  People  v.  Kerr, 


l\ 


t 


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634 


STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  216. 


87  N.  Y.  i88.  Criticising  South  Carolina 
R.  Co.  V.  Steiner,  44  Gu.  S47.  Distinguish- 
ing Southern  Pac.  R.  Cq.  v.  I^eed,  41  CaL 
2J6.  Not  following  Fletcher  v.  Auburn 
&  S.  R.  Co..  2$  Wend.  463. —  Distin- 
guished IN  Denver  v.  Bayer,  7  Colo.  113, 

In  proof  of  such  authorij^,  the .  company 
may  adduce  a  city  ordinance  and  evidenjce 
of  compliance  therewith  in  every  rf^spect. 
Colorado  C.  /I.  Co.  v.  Mollandin,  4  Colo.  1 54. 

Complaint  by  the  owner  of  a.  lot  .having 
buildings  thereon,  used  for  worship  and  a 
school,  alleging  the  use  of  the  adjoining 
street  by  a  railroad  company  for  its  track,  on 
which  cars  were  run,  whereby  worship,  was 
interrupted,  children  attending  the  school 
imperiled,  and  the  street  obstructed,  etc. 
Answer,  that  the  railroad  was  operated, in 
the  usual  way  necessary  for  siich  business ; 
that  the  railroad  is  nine  feet  widi;,  and  none 
of  it  upon  plajntifl's  premises,  being  beyond 
the  centre.  oJF  the  street,  and  was  cpp- 
structed  by  leave  of  the  city  and  in  manner 
as  required  by  an  ordinance;  that  th?  street 
is  sixty-six  feet  wide  and  is  not  obstructed  . 
sftve  a^  the  running  of  car^  carefully  and  as 
is  usual  may  temporarily  have  that  effect  as 
to  its  general  use.  Held,  that  the  answer 
was  good.  Dwenger  v.  Chicago  &*  G,  T.  R. 
Co.,  20  Am.  6-  Ettg.  K.  Cas.  26,  98  Ind.  153. 

An  abutting  lot  owner  cannot  recover 
d^ipages  by  reason  of  the, location  of  a  rail- 
road, duly  authorized  by  the  city  counpil, 
along'  one  of  the  regularly  laid-out  strjeets 
of  a  city,  unless  there  has  been  a. practical 
obstruction  of  the  street  in  front  of  his 
premises  and  he  is  virtually  deprived  of  ac- 
cess to  his  property. .  Wichita  &*  C.  A\  CV. 
v.  Smith,  46  Am.  &*  Eng.  K.  Gis,  53, 45  AVi/i. 
264,^^2$,  Pad  Hep.  623.— Followed  in  Kan- 
sas, K.  &  D..  R.  Co..  V.  Mahler.  45  Kan.  565. 
— flerndoH  v.  Kansas,  N.  &*  D.  R.  Co.,  46 
iPflii.  560.  26 /•«<:.  A'^.  959.  , 

The  use  by  a  railroad,  under  fiuthority,of . 
itq  charter,  of^  street,  in  its  ordinary  use  as 
a  means  of  travel  and  transportation,  is  not 
a  perversion  of  the  highway  from  its  original 
purposes.  Any  damage  to  the  property 
abutting  on  the  street,  resulting  from  such 
obstruction,  is  damnum  absque  injuria. 
Porter  y.  North  Mo.  R.  Co.,  33  Mo.  128.— 
Distinguishing  Lackland  v.  North, Mo. 
R.  Co.,  31  Mo.  181.— Criticised  in  Kuche- 
man  v.  Chicago,  C.  &  D.  R.  Co.,  46  low^  366- 
Distinguished  in  Glaessper  v-  Anheuser- 
Buich  Brew.  Assoc,  ipo  Mo.  508,  13  S. 
W.  Rep.  707.    Followed  in  Lacklaml  v. 


North  Mo.  R.  Co..  34  Mo.  259.  Quoted 
in  Gaus  &  S.  Mfg.  Co.  v.  St.  Louis,  K.  &  N. 
R.  Co.,  113  Mo.  308.  Rfxonciled  in  Vir- 
ginia &,T;  R-  Co.  V.  Lynch,  13  Nev.  92. 

PlaintiiT  brought  an  action  to  recover 
damages  for. the  obstruction  of  a  street  in 
front  of  his  premises  by  a  railroad,  or  in 
default  thereof  for  an  injunction  to  restrain 
such  use.  The  evidence  showed  that  the 
obstruction  was  authorized  by  law,  and,  by 
reference  to  a  map.  that  plaintiH's  lot 
abutted  on  and  was  bounded  by  the  street. 
Held,  that  plaintif!  had  no  interest  beypnd 
that  possessed  by  the  public  generally  be- 
yond the  streets  bounding  his  property,  and 
the  remedy  should  be  refused.  Hier  v.  Neiv 
York,  W.  S.  &*  B.  R.  Co.,  40  Hun  (N.  K.) 
310 ;  affirmed  in  109  A'.  Y.  659,  mem.,  17  N. 
E.  Rep.  867.— Quoted  in  Rummel  v.  New 
York.  L.  &  W.  R.  Co.,  30  N.  Y.  S.  R.  235, 
9  N.  Y.  Supp.  404. 

A  common-law  action  does  not  lie  against 
a  railroad  for  consequential  injuries  occa- 
sioned by  the  construction  and  operation  of 
its  road  ;  and  a  public  street  in  front  of 
property  may  be  used  for  the  purposes  of  a 
railroad  when  the  charter  authorizes  such 
use.  Struthers  v.  Dunkirk,  W.  &'  P.  R. 
Co.,  87  Pa.  St.  283. 

Authority  from  the  legislature  for  the 
construction  of  a  track  on  a  street,  whereby 
the  owners  of  adjacent  lots  suffer  incon- 
venience and  injury,  is  not  a  taking  of 
property  within  the  meaning  of  Texas  Con- 
st,itution.  Such  an  addition  to  the  use  of 
the  street,  if  authorized  by  the  legislature, 
gives  to  the  lot  owner  no  right  to  compensa- 
tion, although  his  easement  in  the  street  be 
thereby  impaired,  and  his  lot  rendered  less 
valuable.  Houston  «S-»  T.  C.  R.  Co.  v.  Oduin, 
2  Am.  &*  Eng.  R.  Cas.  503,  53  Tex.  343. — 
Reviewed  in  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Eddins,.6o  Tex.  656.. 

216.  Recovery,  for  injuries  ^iis- 
taiii^d  in  Qomnion  witli  of  hers.*  — 
(1)  Riule  generally.^ An  adjoining  property 
owner  cannot  maintain  an  action  to  abate 
a  railroad  in  a  street  as  a  nuisance,  or  re- 
cover damages  therefor,  unless  he  shows 
that  he  has  suffered  some  special  damage 
by  reason  thereof.  Hogan  v.  Central  Pac. 
R.  Co.,  71  Cat.  83,  II  Pac.  Rep.  876. 


*  See  also /M/,  285. 

Lot  owner  can  only  recover  for  special  inju- 
ries, see  note,  20  Am.  &  Eng.  R.  Cas.  81 ;  14 

/..'.    !72. 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  316. 


G35 


No  right  of  action  accrues  to  an  abutting 
lot  owner  against  a  company  for  operating 
its  railroad  in  tlie  street  in  the  usual  way, 
by  leave  of  the  city,  where  tiie  injury  is 
only  such  as  the  general  public  sustains. 
Dwenger  v.  Chicago  &*  G.  T.  K.  Co.,  20  Am. 
&*  Eng,  R.  Cas.  26,  98  /nt/.  153.  TVrr* 
Nau/e  &*  L.  A'.  Co.  v.  Bissell,  108  /«</.  113, 
9  A'.  E.  Hep.  144.  Rochttte  v.  Chicago,  Af.  &* 
St.  P.  R.  Co.,  17  Am.  &•  Eng.  R.  Cas.  192, 
32  Minn.  201,  20  A',  W.  Rep.  140.— Fol- 
lowing Shaubut  V.  St.  Paul  &  S.  C.  R. 
Co.,  21  Minn.  502;  Prop'rs  of  Locks,  etc.,  v. 
Nashua  A  L.  R.  Corp.,  10  Cush.  (Mass.)  385  ; 
Rigney  T/.  Chicago,  102  III.  64:  Caledonian 
R.  Co.  V,  Ogilvy,  2  Macq.  H.  L.  Cas.  229; 
Beckett  v.  Midland  R.  Co.,  L.  R.  3  C.  P. 
82 ;  McCarthy  v.  Metropolitan  Board  of 
Works,  L.  R.  7  C.  P.  508.— Followed  in 
Carroll  v.  Wisconsin  C.  R.  Co.,  36  Am.  & 
Eng.  R.  Cas.  648,  40  Minn.  168,  41  N.  W. 
Rep,  661.— Rutfe  v.  St.  Lout's,  93  Mo.  408,  12 
Wm/.  Rep.  238,  6  S.  IV.  Rep.  257.— FOL- 
LOWED IN  Can  man  v.  St.  Louis,  97  Mo.  92  ; 
Gaus  &  S.  Mfg.  Co.  v.  St.  Louis,  K.  &  N.  R. 
Co.,  113  Mo.  308. — Fair  child  v.  .7/.  Louis, 
97  Mo.  85,  II  S.  W.  Rep.  60.  Hamilton  v. 
Covert,  16  U.  C.  C.  P.  205.— Following 
Ward  V.  Great  Western  R.  Co.,  13  U.  C.  Q. 
B.  315. — Jarvis  v.  Great  Western  R.  Co.,  8 
U.  C.C.P.  115. 

And  the  same  rule  obtains  under  Mis- 
nonri  Constitution,  providing  that  "  private 
property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation." 
Jackson  w  Chicago,  S.  F.  &*  C.  R,  Co.,  43 
An.  &*  Eng.  R.  Cas.  145,  41  Fed.  Rep.  656. 

The  obstrin:tion  of  a  street  by  the  con- 
struction of  a  railroad  therein  and  the 
consequent  loss  of  trade  by  the  diversion  of 
travel  to  another  street  is  damage  which  is 
common  to  the  public  and  is  not  peculiar 
to  the  owner  of  property  abutting  upon  the 
street,  and  he  cannot  recover  compensation 
therefor.  Jackson  v.  Chicago,  S.  F,  &*  C.  R, 
Co.,  43  Am.  &•  En^.  R.  Cas.  145,  41  Fed. 
Rep.  656. 

Plaintiff  was  owner  and  occupant  of  an 
unplatted  tract  of  land,  adjoining  a  platted 
tract,  and  abutting,  in  part,  upon  the  head 
of  a  street  laid  out  on  such  platted  tract. 
Held:  (i)  that  plaintiff,  simply  as  owner  and 
occupant,  had  no  estate  or  interest  in  a  part 
of  such  street  upon  which  his  tract  did  not 
abut,  and  that,  therefore,  he  could  not  com- 
plain of  obstructions  placed  and  maintained 
in  such  part  by  a  railroad  company,  upon 


the  ground  of  an  appropriation  of  the  same 
without  compensation  to  him  ;  (2)  that  the 
injury  suffered  by  plaintiff,  in  consequence 
of  the  obstructions,  being  an  injury  in  com- 
mon with  the  public,  the  only  difference 
between  the  two  being  a  difference  in  de- 
gree, not  in  kind,  the  obstructions  (if  a 
nuisance  at  all)  were  a  public  nuisance  only, 
and  therefore  to  be  removed  and  enjoined 
through  a  proceeding  by  the  public  or  its 
proper  representative,  and  that  as  they  had 
occasioned  plaintiff  no  injury  which  the  law 
regards  as  peculiar  or  special,  he  had  no 
action  for  private  damages.  Shaubut  v.  St. 
Paul&*  S.  C.  R.  Co.,  21  Minn.  502,  19  Am. 
Ry.  Rep.  223. 

(2)  Exceptions.  —  Injuries  resulting  from 
the  obstruction  of  highways  leading  to  th^ 
premises  of  the  party  complaining,  and  in- 
terfering with  access  to  them,  are  proper 
grounds  of  recovery  by  the  injured  party, 
even  though  many  others  sustain  like  inju- 
ries from  the  same  cause.  Park  v.  Chicago 
&*  S.  W.  R.  Co.,  43  Iowa  636,  14  Am.  Ry, 
Rep.  489.— Followed  in  Piatt  v.  Chicagr), 
B.  &  Q.  R.  Co.,  74  Iowa  127,  37  N.  W. 
Rep.  107. 

In  an  action  by  an  abutting  property 
owner  to  recover  special  damages  for  the 
construction  of  a  railway  along  the  street  in 
front  of  his  property,  impairing  the  use  of 
the  street,  plaintiff  is  not  barred  from  re- 
covering by  the  fact  that  other  property 
owners  in  the  same  locality  have  also  been 
injured  in  the  same  manner.  Texas  &*  N. 
O.  R.  Co.  V.  Goldberg,  32  Am.  6-  Eng.  R. 
Cas.  240,  68  Tex.  685,  5  S.  W.  Rep.  824. 

Under  Tex.  Const,  art.  i,  §  17,  providing 
that  no  person's  property  shall  be  damaged 
for  public  use  without  compensation,  the 
"  damage  "  is  not  alone  the  direct  physical 
damage  to  the  corpus  of  the  property,  but 
it  is  any  direct  physical  injury  to  the  right 
of  user  or  enjoyment  of  it  by  which  the 
owner  sustains  some  special  pecuniary 
damage  in  excess  of  that  sustained  by  the 
public  generally ;  but  a  landowner  who 
claims  damages  for  the  construction  of  a 
railroad  in  a  street  is  not  precluded  from 
recovering  because  the  damage  is  common 
to  property  owners  in  his  part  of  the  city, 
who  cannot  be  said  to  constitute  the  "  com- 
munity generally."  Haney  v.  Gulf,  C.  &• 
S.  F.  R.  Co..  3  Tex.  App.  (Civ.  Cas.)  336.— 
Approving  RigneyTA  Chicago,  102  III.  64. 
D1.STINGUISHING  Gulf.  C.  &  S.  F.  R.  Co.v, 
Eddins,  60  Tex.  656 ;  Gulf,  C.  &  S.  F.  R. 


i1 


'  u 


r 


fd     i 


I     J 


i 


680        STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  217-220. 


Co.  V.  Fuller,  63  Tex.  4f>7  ;  Williams  i/.  Gulf, 
C.  4  S.  F.  R.  Co.,  I  Tex.  App.  (Civ.  Cas.) 
131;  Gulf,  C.  &S.  F.  R.  Co.  V.  Graves,  1 
Tex.  App.  (Civ.  Cas.)  301. 

217.  Elfect  of  Hiiliig  f»r  dniiinges. 
— Ry  instituting  an  action  for  diiaiciges  the 
lot  owner  in  effect  consents  that  the  com- 
pany may  continue  for  all  future  time  to 
use  the  street  as  it  is  now  using  it,  and  in 
consideration  therefor  to  accept  such  judg- 
ment as  may  be  rendered.  Jeffersonville, 
M.  <S-  /.  R.  Co.  V.  Eiterle,  13  Ihish  (Ky) 
667,  \7  Am.  Ky.  Rep.  if  1.— Revikwed  in 
Central  Branch  U.  P.  R.  Co.  v.  Twine,  23 
Kan.  585. 

218.  FUcctincnt.*— If  a  company  ap- 
propriates a  highway  to  its  permanent  use 
without  any  authority  for  so  doing,  the 
abutting  landowner  who  owns  the  fee  of 
the  highway  may  recover  possession  thereof 
in  an  action  of  ejectment.  Louisville  St.  L. 
&*  T.  It.  Co.  V.  //ess,  50  Am.  <J-  Eng.  R.  Cas. 
202,  92  Ky.  407,  17  S.  W.  Rep.  870. 

210.  Niilsaiioc.t— If  the  noise,  confu- 
sion, and  disturbimce  caused  by  the  engines 
and  cars  of  a  company  to  private  propert> 
are  such  as  would,  in  the  absence  of  legisla- 
tive authority,  have  constituted  an  action- 
able nuisance,  the  existence  of  such  au- 
thority in  no  way  relieves  them  of  their 
damaging  effect,  so  as  to  take  away  from  the 
property  owners  their  right  to  redress,  or  so 
as  to  convert  what  was  before  actionable 
into  a  case  of  damnum  absque  injuria. 
Chicago.  M.  &«•  St.  P.  R.  Co.  v.  Darke,  148 
III.  226,  35  A^.  R.  Rep.  750. 

Where  a  company,  prior  to  the  enactment 
of  Iowa  Code  of  1873.  §  464.  commenced  the 
use  of  a  city  street  for  its  tracks,  it  did  so 
free  from  any  claim  for  damages  by  abut- 
ting lot  owners,  and  cannot  afterwards  be 
made  liable;  but  where,  since  the  enact- 
ment of  said  section,  the  same  company 
built  another  track  on  the  same  street, 
under  authority  from  the  city,  without 
compensating  the  abutting  lot  owners,  the 
occupation  of  the  street  with  such  second 
track  constitutes  a  continuing  trespass  and 
nuisance,  for  which  any  abutting  lot  owner 
may  recover.  And  if  no  recovery  is  had 
which  will  compensate  for  the  future  and 
continuous  occupancy  of  the  street,  the 
grantee  of  the  owner  may  maintain  an  action 

•Right  of  abutting  owner  to  niainiaiii  eject- 
ment against  company  constructinK  road  in 
•treet,  see  40  Am.  &  Eng.  R.  Cas.  3(;5,  ahstr. 

f  See  also  ante,  ]  83  ;  post,  IS.'tS. 


for  the  injury  which  he  subtains  thereby. 
Merchants'  Union  Barb  Wire  Co.  v.  Chicago, 
li.  *•  Q.  R.  Co.,  70  Iffwa  105,  28  A'.  W. 
Rep.  494.— Distinguished  in  Pratt  v.  Det 
Moines  N.  W  R.  Co..  32  Am.  h  Eng.  R. 
Cas.  236,  72  Iowa  249,  33  N.  W.  Rep.  666. 

The  controlling  principle  which  gives  to 
private  individuals  a  right  of  action  to  abate 
a  |)ublic  nuisance,  such  as  a  railroad  in  the 
street,  isan  invasion,  impairment,  or  destruc- 
tion of  a  common  right  which  they  possess, 
independent,  separate,  and  distinct  from  the 
rights  of  the  general  public.  Fogg  v.  Neva- 
da C.  O.  R.  Co..  43  Am.  «S-  Eng.  R.  Cas.  105, 
20  JVcv.  429.  23  Pac.  Rep.  840. 

To  enable  separate  lot  owners  to  maintain 
an  action  to  abate  a  railroad  i  Mie  street,  as 
a  nuisance,  they  must  show  that  they  have 
sustained,  or  will  sustain,  a  special  and  pe- 
culiar injury,  irreparable  in  its  nature,  and 
different  in  kind  from  that  sustained  by  the 
public  generally.  Eogg  v.  Nevada  C.  O.  R, 
Co.,  43  Am.  &•  Eng.  R.  Cas.  105,  20  Nev. 
429,  23  Pac.  Rep.  840. 

Where  a  railroad  is  lawfully  constructed 
on  a  street,  b\it  the  use  of  the  road  i:t  unlaw- 
ful, so  as  substantially  to  destroy  the  ease- 
ment in  the  street,  and  all  ingress  and 
egress  of  an  abutting  lot  owner,  the  latter 
may  maintain  successive  actions  for  the 
nuisance,  recovering  the  damages  that  have 
accrued  up  to  the  time  each  action  is 
brought,  and  a  recovery  in  one  action  will 
not  bar  a  subsequent  action  for  a  continu- 
ance of  the  nuisance.  Harmon  v.  Louis- 
ville, A'.  O.  <&-  T.  R.  Co.,  87  Tenn.  614,  11 
S.  W.  Rep.  703. 

The  measure  of  damages  in  such  case  is 
the  impairment  of  the  value  of  the  use  of 
such  property  by  such  nuisance  during  its 
continuance,  and  not  the  difference  in  the 
market  value  of  the  property.  Harmon  v. 
Louisville,  N.  O.  &*  T.  R.  Co..  87  Tenn.  614, 
1 1  S.  IV.  Rep.  703. 

But  if  suit  be  brought  for  such  nuisance, 
and  the  entire  destruction  of  the  easement 
be  alleged,  and  a  charge  be  submitted  to 
fixing  the  permanent  impairment  of  the 
value  of  the  property  as  the  measure  of 
damages,  one  recovery  will  bar  a  subsequent 
suit  for  the  continuance  of  the  nuisance. 
Harmon  v.  Louisville,  N.  O.  &•  T.  R.  Co., 
87  Tenn.  614,  11  5.  W.  Rep.  703. 

220.  Trespass.*  —  Under  Iowa  Code, 
§  464.   a  company,  before  constructing  and 

•Sec  also /w/,  233. 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  aai-U23. 


637 


operating  a  ruad  ulung  the  streets  of  a  town, 
must  have  the  damages  to  the  owners  of  lots 
abutting  on  such  stieets  assessed  ;  and  if  it 
fails  to  do  su,  sucli  lot  owners  can  bring  an 
action  against  it  as  a  trespasser  to  recover 
the  damages  sustained  by  reason  of  the 
construction  and  operation  of  the  road. 
MulAollamiv.  Des  Afointi,  A.^-  IV.  A'.  Co., 
lo  A>»,  &*  En^.  li.  Ctts.  99,  60  /(nua  740,  13 
A'.  U'.  Rep,  726.— FoLLoWElJ  IN  Hanson  v. 
Chicago,  M.  &  St.  V.  R.  Co..  61  Iowa  588  ; 
Stougli  V.  Chicago  &  N.  W.  R.  Co.,  30  Am. 
&  Eng.  R.  Cas.  396,  71  Iowa  641. 

The  above  section  applies  to  partly  con- 
structed roads,  as  well  as  to  those  completed  ; 
and  a  road  begun,  but  not  completed,  before 
the  adoption  of  the  Code,  will  be  witiiin  its 
provisions,  although  when  such  road  was 
incorporated  the  law  in  force  did  not  pro- 
vide for  compensation  or  assessment  of 
damages  in  belialf  of  lot  owners.  Mulhol- 
himl  V.  Des  Moines,  A.  &*  W.  R,  Co.,  10 
Am.  &-  Etig.  R.  Cas.  99,  60  /owit  740,  13  A^. 
fV.  Rep.  726. 

The  owner  of  land  is  not  divested  of  his 
title  thereto  by  laying  out  a  highway  over 
it.  So  where  a  railroad  company  is  only 
authorized  to  construct  its  track  across  pri- 
vate lands  by  agreement  with  the  owner,  or 
upon  payment  of  damages,  it  is  liable  as  a 
trespasser  where  it  constructs  its  road  on  a 
liighway  without  permission  or  payment  of 
damages.  Presbyterian  Sac.  v.  Auburn  <S- 
R.  R.  Co.,  3  Hill  (N.  y.)  567. 

A  company  occupying  a  public  street  by 
authority  from  the  municipal  government 
is  not  a  trespasser  as  to  abutting  property 
owners.  Iron  Mountain  R.  Co.  v.  liinghum, 
38  Am.  &>  Eng.  R,  Cas.  444,  87  Tenn.  522, 
4  /..  A".  A.  622,  II  S.  IV.  Rep.  705. -Dis- 
tinguished IN  East  End  St.  R.  Co.  v. 
Doyle.  88  Tenn.  747,  9  L.  R.  A.  100,  13  S. 
W.  Rep.  936. 

Where  a  company,  without  the  consent  of 
the  owner,  and  witliout  having  acquired  a 
right  to  the  land  in  the  manner  provided 
by  the  statute,  takes  possession  of  land  for 
which  it  is  liable  to  make  compensation 
(such  as  land  forming  part  of  a  public  street, 
but  the  fee  of  which  is  in  plaintiff),  it  is 
liable  in  an  action  of  trespass ;  and  the 
neglect  of  the  owner  to  proceed  by  injunc- 
tion to  restrain  the  company  from  construct- 
ing its  road  on  such  land  is  not  a  waiver  of 
his  right  of  action  for  the  trespass.  B/esc/i 
V.  Chicago  &'  N.  H'.  R.  Co.,  43  Wis.  183.— 
Following  Sherman  v,  Milwaukee,  L.  S. 


&  W.  R.  Co.,  40  Wis.  645.— Approved  in 
Lamm  v.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  45 
Minn.  71.  Distinguished  in  Milwaukee 
&  N.  R.  Co.  V.  Strange,  20  Am.  &  Eng.  R. 
Cas.  413,  63  Wis.  178. 

3.  Injunction.* 

221.  Itulo  tlitit  equity  will  not 
liilvrt'eru  witli  iuwl'iil  ocfiipatioii  of 
Mli'«i't.t  -  -  Where  a  company  is  authorized 
by  law  to  lay  a  track  and  operate  a  railroad 
in  a  street,  a  court  of  equity  cannot,  on  a 
bill  filed  by  an  indivi<lual  to  enjoin  the 
road,  restrict  the  number  of  trains  to  be  run 
thereon,  as  a  condition  precedent  to  the 
right  to  operate  the  road.  Kentucky  <S-  /. 
Bridge  Co.  v.  Krieger,  93  Ky.  243,  1 9  S.  IV. 
Rep.  738.— Reviewing  Lexington  &  O.  R. 
Co.  7'.  Applegate,  8  Dana  (Ky.)  289. 

Tiie  (latnages  resulting  to  complainants 
from  laying  and  using  a  track  in  front  of 
tlieir  property  should  be  included  in  the 
compensation  awarded  in  condemnation 
proceedings,  and  therefore  an  injunction 
cannot  be  awarded  against  the  operation  of 
the  road.  Phipps  v.  Western  Md.  R.  Co.,  66 
Md.  319,  7  At  I,  Rep.  556. 

222. uiMlcr  luffiMlativo  niitlior- 

Ity.  —  The  mayor  and  aldermen  of  a  city 
h.ive  not  the  right  to  an  injunction  restrain- 
ing the  construction  of  a  railwiiy  upon  the 
streets,  under  legislative  authority,  for 
the  benefit  of  the  residents  along  such 
streets.  Savannah  6<»  T.  R.  Co.  v.  Mayor, 
etc.,  of  Savannah,  45  Ga.  602,  3  Am.  Ry. 
Rep  36. 

Where  a  company  has  obtained  an  order 
from  the  supreme  court,  as  required  by  N. 
v.  Act  of  1864,  ch.  582,  authorizing  it  to 
construct  its  road  "  upon  or  along  any 
highway,"  notice  having  been  given  to  the 
highw<iy  commissioners,  such  commission- 
ers cannot  restrain  the  construction  of  the 
road  along  or  upon  a  highway.  Baxter  v. 
Spuyten  Duyvil  &•  P.  M.  R.  Co.,  61  Barb. 

(N.  y.)  428. 

223.  or  iniinioipnl  coiiHcnt.— 

A  court  of  equity  will  not  restrain  the  lay- 
ing of  a  side   track    by  a  company   in   a 

*  Rii^ht  of  abutting  owner  to  enjdin  use  of 
istreet  or  highway  for  railroad  purposes,  see 
note,  s  L.  R.  A.  373.  See  also  46  Am.  &  Eng. 
R.  Cas.  74,  aittr. 

Construction  of  electric  railways  in  dtreets. 
Right  of  abutting  owner  to  inj||inction,  see  46 
Aim.  &  Enc.  R.  Cas.  80.  absfr. 

f  See  a\so  ante,  213. 


638 


STREETS   AND    HIGHWAYS   (RAILWAYS   IN),  223. 


hi 


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' ;'  t. 


ll '  ^ 


i  ' 


i" 


public  street  in  front  of  its  own  property  to 
connect  with  the  main  truck  of  a  railway, 
tinder  licence  by  ordinance  of  the  city  coun- 
cil, on  a  bill  by  private  individuals  owning 
property  in  the  vicinity  but  not  abutting 
on  the  part  of  the  street  to  be  used.  Truts- 
lialt  V.  Peoria  Grape  Sugar  Co.,  5  Am.  &* 
Eng.  /?.  Cas.  248,  loi  ///.  561. 

An  injunction  will  not  lie  at  the  suit  of 
nn  abutting  property  owner,  when  thci* 
entry  upon  and  occupation  of  the  street  by  a 
railroiid  arc  by  the  authority  of  the  munici- 
pal agency  invested  with  the  control  of  such 
street.  The  want  of  power  of  a  court  of 
equity  to  interfere  by  injunction  is  predi- 
cated upon  the  impracticability  of  ascer- 
taining the  damage  that  will  be  done.  But 
when  the  landowner  has  settled  his  right 
to  damages,  and  their  measure,  in  an  action 
at  law,  if  any  reason  exists  why  he  cannot 
have  execution  of  the  same,  equity  will 
assist  him,  but  not  before.  Penn  Mut.  L. 
Ins.  Co.  V.  Heiss,  141  ///.  35,  31  A''.  E. 
Rep.  138. 

Where  a  railroad  is  authorized  by  an  act 
of  llie  legislature,  and  constructed  over 
streets  by  consent  of  the  municipal  author- 
ities, it  cannot  he  restrained  as  a  nuisance. 
MUburn  v.  Cedar  Rapids,  12  Icwa  246. — 
EXPI.AININO  Davis  v.  Mayor,  etc.,  of  N.  Y., 
14  N.  Y.  506;  Williams  v.  New  York  C.  R. 
Co.,  16  N.  Y.  97.— Distinguished  in  Cook 
V.  Burlington.  30  Iowa  94;  Kucheman  v.  Chi- 
cago, C.  &  D.  R.  Co.,  46  Iowa  366.  Fol- 
lowed IN  Hughes  V.  Mississippi  &  M.  R. 
Co.,  12  Iowa  261  ;  Gear  v.  Chicago,  C.  &  D. 
R.  Co.,  39  Iowa  23  ;  Cook  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  83  Iowa  278.  Quoted  in 
Cook  V.  Burlington,  30  Iowa  94. 

Where  a  railroad  has  been  constructed  in 
a  street  by  authority  of  law  and  the  sanc- 
tion of  the  city  authorities,  an  injunction 
should  not  issue,  at  the  suit  of  an  abutting 
owner,  to  restrain  the  operation  of  the  road, 
unless  it  clearly  appears  that  he  has  been 
deprived  of  the  use  of  the  street.  It  is  not 
enough  to  show  that  he  has  sufTcred  incon- 
venience and  annoyance  which  might  be 
grounds  for  an  action  at  law  for  damages. 
Hylitndv.  Short  R.  R.  Transfer  Co.,{Ky.)  II 
S.  IV.  Rep.  79.— Quoting  Lexington  &  O. 
R.  Co.  V.  Applegate,  8  Dana  (Ky.)  289. 

In  the  absence  of  any  allegation  or  proof 
that  a  railroad  is  improperly  constructed  or 
conducted,  or  uses  defective  machinery,  or 
in  any  way  occasions  injury  not  incident  to 
the  prudent  and  lawful  exercise  of  its  right 


to  operate  n  road  under  permission  from  the 
city,  plamtifT  is  not  entitled  to  an  injunction 
or  damages.  /////  v.  Chicago,  St.  L.  &*N.  O, 
R.  Co.,  38  La.  Ann.  599.  —  Followed  in 
New  Orleans,  Ft.  J.  &  G.  I.  R.  Co.  v.  Bar- 
ton, 43  La.  Ann.  171. 

Preliminary  injimction  to  stop  a  com- 
pany, on  an  allegation  of  nuisance  by  an 
owner  of  adjoining  property  on  the  same 
line,  from  completing  through  a  city  a 
tunnel  authorized  by  the  civil  authorities 
of  the  place,  was  refused.  Hodgkinson  v. 
Long  Island  R.  Co.,  4  Edw.  Ch.  (/V.  V.)  411. 

Where  a  company  is  authorized  by  the 
legislature  to  build  its  road  into  a  city,  upon 
obtaining  the  consent  of  the  mayor  and 
council  of  the  city,  which  consent  has  been 
obtained,  a  court  of  equity  will  not  inter- 
fere  by  injunction  to  prevent  the  construc- 
tion and  operation  of  the  road  on  the  streets, 
upon  an  application  by  abutting  property 
owners  alleging  that  the  construction  of  the 
road  through  the  streets  is  unauthorized 
and  a  nuisance,  that  their  property  will  be 
injured  and  depreciated  in  value,  their  busi- 
ness seriously  affected,  and  that  real  estate 
and  property  vested  in  them  by  law  have 
been  taken  without  compensation.  Drake 
v.  Hudson  River  R.  Co.,  7  Barb.  (N.  V.)  508. 
—Distinguished  in  Savannah,  A.  &  G.  R. 
Co.  V.  Shiels,  33  Ga.  601 ;  Williams  v.  New 
York  C.  R.  Co.,  16  N.  Y.  97.  Followed 
IN  Plant  V.  Long  Island  R.  Co.,  10  Barb. 
(N.  Y.)  26. 

If  the  city  is  the  owner  of  the  legal  title 
to  the  soil  of  the  streets,  it  is  the  only  party 
whose  rights  of  property  are  violated,  or 
whose  ownership  can  be  said  to  be  usurped, 
by  the  construction  of  a  railroad  through 
such  streets.  And  it  is  the  only  party  who 
can  claim  the  right  to  have  the  rails  re- 
moved, or  the  use  of  the  street  vindicated, 
or  freed  from  the  alleged  incumbrance,  or 
the  proceedings  of  the  railroad  company 
arrested  until  compensation  shall  be  made. 
Drahe  v.  Hudson  River  R.  Co..  7  Bart.  (AT. 

y.)  508. 

A  railway  corporation  authorized  to  locate, 
construct,  and  operate  its  road  upon  a  street 
in  an  incorporated  city,  by  authority  of  the 
common  council  thereof,  granted  in  accord- 
ance with  the  charter  o!  the  city,  or  upon  a 
county  road  in  the  country,  under  an  agree- 
ment with  the  county  court  of  the  county  in 
which  the  road  is  situated,  in  accordance  with 
section  3i42,  Ann.  Laws  Oreg.,  cannot  be  en- 
joined from  proceeding  with  its  enterprise 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  224,220. 


G30 


at  the  suit  of  an  owner  of  lands  abutting 
upon  the  street  and  county  road,  whether 
the  fee  to  the  lands  to  the  centre  of  the 
street  and  county  road  adjacent  thereto  is 
in  sucli  owner  or  not,  without  establishing, 
by  allegations  and  proofs,  that  the  construc- 
tion and  use  of  the  railway  will  specially 
interfere  with  the  owner's  ingress  and  egress 
to  und  from  his  premises.  (Lord,  J.,  dis- 
senting.) PaqutI  V.  Alt,  Tabor  St,  R,  Co.,  40 
Am.  &*  Eng.  R,  Cat,  331 ,  18  Or^.  333, 33  Pac, 
R*p.  906. 

Wliere  a  right  of  way  over  the  portion  of 
a  street  on  one  side  of  the  centre  line,  at 
grade,  is  granted  to  a  company  by  the 
municipal  authorities,  a  property  owner  on 
the  other  side  of  the  street  is  not  entitled 
to  damages,  where  convenient  access  to  his 
property  is  not  interfered  with  ;  and  the 
court  will  not  issue  an  injunction,  at  the 
suit  of  such  owner,  to  restrain  the  construc- 
tion of  the  road.  Ji^ik  v.  Erie  Terminal  R. 
Co.,  I  Pa.  Dist.  449. 

224.  ISqiiity  will  not  enjoin  merely 
to  couipol  payment  of  flumiigcH  om- 
HeHMCd.— An  abutting  owner  will  be  refused 
an  injunction  to  restrain  a  railroad  from 
operating  its  trains  in  the  street,  where  the 
road  is  authorized  by  the  legislature,  and  no 
part  of  plainiifT's  pnjperty  is  taken,  and  he 
made  no  claim  for  damages  until  after  the 
track  is  laid,  but  the  court  will  leave  him  to 
his  remedy  at  law  to  recover  the  damages 
guaranteed  by  the  state  Constitution.  Os- 
borne v.  Missouri Pae.  R.  Co.,  35  Feti.  Refi.S^. 
—Following  Stetson  v.  Chicago  &  E.  R. 
Co.,  75  III.  74;  Rigney  V.  Chicago,  103  III. 
79 ;  Hutton  v,  London  &  S.  W.  R.  Co.,  7 
Hare  259;  Lister  v.  Lobley,  7  Ad.  &  El.  134. 
—Stetson  v.  Chicago  &*  E.  R.  Co.,  75  ///.  74. 
—Followed  IN  Osborne  v.  Missouri  Pac. 
R.  Co..  35  Fed.  Rep.  84;  Peoria  &  R.  I.  R. 
Co.  V.  Schertz,  84  III.  in.— Peoria  &>  R. 
I.  R.  Co.  V.  SehertM.  84  ///.  135,  16  Am.  Ry. 
Rep.  434.— Following  Stetson  v.  Chicago 
&  E.  R.  Co.,  75  111.  74. —  Quoted  in 
Spencer  v.  Point  Pleasant  ft  O.  R.  R.  Co., 
33  W.  Va.  406. 

Wlicrc  private  property  is  injured  in  value 
by  the  use  of  a  street  bounding  the  same, 
it  may  be  that  the  owner  is  without  remedy 
until  the  damage  has  actually  occurred  and 
the  amount  of  such  damage  is  ascertained  in 
an  action  at  law.  But  when  the  damages 
are  ascertained  in  the  mode  provided  by  law, 
the  Tight  of  the  lot  owner  to  the  payment 
of  the  same  as  compensation  is  guaranteed 


to  him  by  the  Constitution,  as  a  condition 
of  the  continued  appropriation  of  the  street 
to  the  public  use,  whereby  the  injury  to  hit 
private  property  is  inflicted.  Penn  Mut, 
L.  Ins.  Co.  V.  Heiss,  141  ///.  35,  31  A'.  E. 
Rep.  138. 

Where  a  company  has  secured  fiom  the 
municipal  officers  the  right  to  lay  its  track 
in  a  street,  the  public  easement  in  which  has 
been  acquired  by  more  than  twenty  years' 
adverse  user,  and  the  fee  of  which  is  not  in 
the  adjoining  lot  owners,  a  person  who  has 
leased  a  lot  on  said  street  and  erected  a 
business  house  thereon  has  no  right  to 
enjoin  the  company  from  laying  its  track, 
when  such  company  has  not  assessed  or 
tendered  to  plaintiff  the  damages  he  will 
sustain,  unless  he  can  show  that  he  will  suf- 
fer damages  different  from  the  community 
in  general;  and  the  term  "community  in 
general "  means  those  who  reside  in  the 
immediate  vicinity  of  the  railroad,  and  are 
subject  to  the  inconveniences  incident  to  its 
structure.  Decker  v.  Evansville  S.  &»  N. 
R.  Co.,  133  Ind.  493.  33  M  E.  Rep.  349. 

220.  LimitM  and  cxcoptionx  to  the 
rule  of  non-interference.*  —  A  statu- 
tory license  to  occupy  the  streets  of  a  city 
with  a  steam  railway,  which  license  is  con- 
ditional upon  paying  (before  proceeding  with 
the  construction)  damages  to  the  owners  of 
property  injured  thereby,  contemplates  such 
payment  as  a  condition  precedent,  and 
the  company  may  be  enjoined  from  vio- 
lating the  condition.  That  the  statute 
provides  that  either  party  may  proceed  to 
liave  the  damages  assessed  will  not  make 
it  incumbent  upon  the  property  owner  to 
take  steps  for  that  purpose  rather  than  re- 
sort to  the  remedy  of  injunction ;  certainly 
not  where  the  facts  of  the  case  render  it 
more  appropriate  for  the  company  to  take 
the  initiative.  Georgia  Southern  &•  F.  R. 
Co.  V.  Ray,  43  Am.  &*  Eug.  R.  Cas.  95,  84 
Ga.  376,  II  S.  E.  Rep.  353. 

Where  a  city  has  no  authority  to  grant  the 
privilege  of  laying  railroad  tracks  in  streets, 
unless  upon  the  petition  of  more  than  one 
half  of  the  abutting  property  owners,  any 
one  or  more  of  such  owners  may  enjoin  a 
railroad  that  is  proceeding  under  an  drdi- 
nance  that  was  passed  without  such  peti- 
tion. Bes  v.  Chicago,  R.  I.  5-  P.  R.  Co.,  23 
lU.Appwn.       

•  Injury  10  abutting  property  catisH  by  oper- 
ation of  railway.  When  company  liable  and 
may  be  enjoined,  see  note,  56  Am.  Rep.  6. 


(iiJ        STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  220-228. 


IS  'fi 


fcif     i 


ii    ^ 


Where  it  appears  ihat  a  municipal  corpo- 
ratiun  has  no  power  to  grant  the  privilege 
of  establishing  a  r.iilroad  tliruugh  its  streets, 
or  that  such  a  railroad  would  be  an  injurious 
monopoly,  or  a  public  nuisance,  or  if  there 
nre  reasons  foi  believing  that  such  giant  is 
about  to  be  made  corruptly, acouitof  equity 
has  power  to  issue  an  injunction  to  restrain 
such  grant.  Davis  v.  Mayor,  etc.,  of  N.  J'., 
I  Duer  (N.  V.)  451 ;  affirmed  in  9  N.  Y,  263. 

A  railroad  in  the  streets  of  a  city,  not 
k-gtilly  I'uthorized  by  the  common  council, 
is  a  public  nuisance  of  which  taxpayers  and 
owners  of  abutting  property  have  a  Icgnl 
right  to  complain,  and  it  may  be  restrained 
upon  the  application  of  the  parties  specially 
aggrieved.  We/wore  v.  Story,  22  Barb.  (N, 
Y.)  414. — QutniNG  Milliiiu  v.  Sharp,  15 
Barb.  230.  Kevikwinu  Could  v.  Hudson 
Kiver  R.  Co.,6N.  V.  522, 

But  such  parties  are  not  entitled  to  dam- 
ages, nor  to  an  injunction,  on  the  ground 
that  no  compensation  has  been  awarded  to 
them  for  the  land  in  the  streets  claimed 
by  them.  If  they  have  any  title  to  those 
lands,  tlieii  property  will  not  be  used  for 
any  purpose  other  than  to  pursue  previously 
acquired  privileges.  Wetmore  v.  Story,  22 
Jiari.  (A".  Y.)  414.  — Quotino  Drake  v. 
Hudson  River  R.  Co.,  7  Barb.  508. 

Where  the  construction  of  a  steam  rail- 
road in  a  street  of  a  city  will  work  material 
injury  lo  the  abutting  property,  such  con- 
struction may  be  enjoined,  at  the  suit  of  the 
owners,  until  the  right  to  construct  such 
road  in  the  street  shall  first  be  acquired 
under  proceedings  instituted  against  such 
owners,  as  required  by  law  for  the  appropri- 
ation of  private  properly.  It  is  immaterial 
whether  the  fee  is  vested  in  the  city  or  in 
the  abutting  owners,  <iO  long  as  it  is  held 
upon  the  same  defined  uses.  Scioto  Valley 
/\\  Co.  v.  Lawrence,  7  Ant.  &*  ^'i/f-  A".  Cas, 
93,  38  0/1  io  St.  41,  43  Ww.  A'ep.  419. —  I'ol,- 
LuwiNG  Cincinnati  &  S.  G.  A.  St.  R.  Co.  ?/. 
Cuniminsville,  14  Ohio  St.  524. — Appliku 
IN  Grafton  ?'.  Baltimore  &  O.  R.  Co.,  17 
Am.  &  Eng.  R.  Cas.  ?oo,  21  Fed.  Rep.  309. 
Criticised  in  Adanis  7>.  Chicago,  li.  &  N. 
R.  Co.,  36  Am.  &  Eng.  R.  Cas.  7,  39  Minn. 
286,  39  N.  W.  Rep.  629,  I  L.  R.  A.  493,  38 
Alb.  L.  J.  388. 

A  statute  located  a  strf  et,  and  directed  the 
county  commissioners  '  forthwith  to  open 
the  street,"  and  also  empowered  a  company 
to  lay  railroad  tracks  on  the  street  "  immedi- 
ately after  the  passage  of  this  act."    HelU, 


that  the  commissioners  must  first  open  the 
street,  and  that  an  injunction  would  lie  to 
restrain  the  compar.y  from  entering  the 
land  to  build  its  ruad  before  the  street  was 
opened.  Jarden  v.  Philadelphia,  IV.  <&*  B. 
a:  Co.,  3  H7iart.(/'a.)  502. 

220.     irrcimrablu    dniiinKe  — 

]>uiiH;crto  lil'u  or  liealtli.— If  the  dam- 
ages arc  irreparable,  such  as  affecting  the 
free  use  of  a  residence,  or  an  abutting  lot, 
cutting  ofl  ingress  or  egress  thereto,  and 
endangering  the  property,  life,  and  health  of 
persons  residing  thereon,  an  injunction  will 
be  granted  to  |>rcvent  the  obstruction. 
C/iica^t;o,  St.  L.  &»  P.  li.  Co.  v,  Eisert,  127 
Ind.  156.  26  A'.  E.  Kep.  759. 

227.  public  u>*«  of  Ntrect  dc- 

Htroycd. — Where  it  appears  that  a  com- 
pany has  no  authority  to  use  a  street  so  as 
to  destroy  its  public  use  as  such,  a  court  of 
equity  will  award  an  injunction  on  the  ap- 
plication of  one  whose  business  will  be  in- 
jured and  the  value  of  whose  property  will 
be  depreciated  by  reason  thereof.  Piedingtr 
V.  Marquette  Sf  W.  I\.  Co.,  29  Aw,  &*  Eng, 
K.  Cas.  61 1,  62  Mich.  29,  28  A'.  W.  Rep.  775. 

Altliougii  the  authorities  hold  that  a  com- 
pany may  lay  its  track  on  the  streets  of  a 
l)oroiigh,  yet  the  occupancy  of  a  street  by  a 
company  to  the  exclusion  of  the  public,  or 
so  that  the  safety  of  travelers  will  be  endan- 
geri'd  by  requiring  them  to  pass  on  or  aloni^ 
the  track  for  a  distance  of  200  or  300  feet, 
will  not  be  allowed.  Stroudsburg  v.  Wilkcs- 
luirre  &-  E.  /?.  Co.,  2  Pa.  Dist.  507.— QuoT- 
INT.  Jones  V,  Erie  &  W.  V.  R.  Co.,  151 
Pa.  St.  30. 

Wiicre  such  a  crossing  is  proposed  by  a 
company,  the  court,  on  application  for  an 
injuiKti(jn,  will  restrain  the  construction  of 
the  railroad  until  satisfied  that  thecharacter 
of  the  <  rossing  proposed  is  proper  and  safe. 
Stroudsburg  v.  Wilkes- liarrc  &»  E.  R.  Co.,  2 
/',».  Dist.  507. 

22K.  serious,  sp<M>inl,  luid  uii- 

oqual  hijury  to  nbuttin};  owucrs.*— 
A  legislative  charier  may  confer  upon  a 
( onipany  the  right  of  way  upon  any  street, 
higiiway,  or  turnpike  in  the  state,  and  the 
rig'.it  to  construct  thereon  its  road.  Hep- 
ting  V.  New  Orleans  Pac.  R.  Co.,  36  La. 
Ann.  f.98. 

Under  such  grant  the  company  is  author- 
ized to  lay  its  track  upon  and  through  the 

*Spprinl  injury  by  consiruction  of  railroad  In 
nircei  which  will  entitle  lot  owner  to  injunction, 
see  nuiL',  20  Am.  &  Enu,  K.  Cas.  3a 


STREETS   AND    HIGHWAYS   (RAILWAYS   IN),  220,  230.        641 


n  tlie 

lie  to 

the 

:t  was 
&•  B. 


street  uf  an  uii incorporated  town  without 
further  permission  or  autliority.  The  com- 
pany cannot,  liowevcr,  so  cunstruct  the  road 
thiougii  a  street  as  unnecessarily  to  impair 
the  right  of  tlic  public  to  tlie  free  use  of 
such  street,  and  to  inflict  serious  and  uiicc|iial 
damage  upon  private  property  coiitigiiuiis 
to  said  street ;  and  properly  owners  so  in- 
jured may  demand  by  suit  the  reconstruc- 
tion of  the  track,  and  under  conditions  its 
ultimate  removal.  Ifcpti/ij^  v.  A'nw  Or/fnits 
Pac.  R.  Co.,  36  La.  Ann.  89S. 

If  a  street  is  so  unlawfully  obstructed  as 
to  subject  an  abutting  owner  to  special  in- 
jury, not  common  to,  but  distinct  and  dilTer- 
ciit  from  that  sufTercd  by  the  public,  and  for 
which  he  cannot  obtain  adequate  conipcnsa- 
tion  at  law,  he  is  entitled  to  the  summary 
interference  by  injunction  of  a  court  uf 
equity.  Baltimore  &*  O.  R.  Co.  v.  Strauss, 
37  Mil.  237. 

Where  a  company  wrongfully  obstructs  a 
street,  whereby  all  access  to  one's  lot  is  cut 
oti,  It  is  a  case  of  special  or  particular  injury 
to  the  owner  of  the  lot,  so  that  he  may 
maintain  an  action ;  and  it  docs  nor  alTect 
the  right  of  action,  though  it  may  the 
amount  of  damages,  that  the  obstruction  is 
not  continuous,  but  only  occasional,  for  sev- 
eral hours  at  a  time.  Hayes  v.  Chicago, 
St.  P.,  A/.  <S-  O.  R.  Co.,  46  J/insi.  34^;  49 
N.  W.  Rep.  61,  —  Following  Btui.;  t-.i  v. 
Minneapolis  &  St.  L.  R.  Co.,  29  Minn.  41.— 
Dubach  v.  Hannibal  &■*  St.  J.  R.  Co.,  29  Am. 
<S-  Ettf;.  R.  Cas.  609,  89  AU.  483,  i  S.  IV. 
Rep.  86. 

220.  Effect  of  delay  by  coiiiplaiii- 
ant.— Where  a  parly  acquiesces  for  more 
than  twenty  years  in  the  use  of  a  strip  of 
land  for  railroad  purposes,  after  it  has  been 
vacated  as  a  public  highway,  and  where  he 
has  a  clear  and  unobstructed  roadway  of 
twenty-nine  feet  in  width  for  access  to  his 
premises,  and  the  only  special  injury  is  the 
inconvenience  of  not  being  permitted  to 
have  wagons  stand  in  front  of  his  place  of 
business  to  load  and  unload,  an  injunction 
will  be  refused.  Morris  &*  E.  R.  Co.  v. 
PruMfn,  20  A'.  /.  £g.  530.— Followed  in 
Higbee  v.  Camden  &  A.  R.  &  T.  Co.,  20  N. 
J-  Eq.  435- 

Delay  on  the  part  of  :..-.  adjoining  owner 
in  remonstrating  against  or  trying  to  pre- 
vent the  occupation  of  a  street  by  a  railroad 
company  with  its  tracks  and  chutes,  etc., 
until  the  work  has  been  done,  involving  an 
immense  outlay  of  money,  will  be  fatal  to 
7  D.  R.  D.— 41 


his  application  for  relief.    Meredith  v.  Sayrf 
32  N.J.  Eq.  557. 

230.  Eiij«>iiiin{;  uiiaiitliorizetl  use 
«f  .streof.  — An  injunction  will  be  granted 
to  restrain  a  railroad  from  the  unauthoiized 
construction  of  a  track  on  an  cnibaid;mcnt 
along  the  public  street  of  an  incorporated 
town,  wlu'rf!)y  the  property  of  an  adjoining 
owner  is  injured.  Columbus  <5-»  W.  R.  Co.  v. 
Witheroxv,  82  Ala.  19c/,  3  So.  Rep.  23. 

It  is  no  objection  I  >  the  (;riinling  of  an 
injunction  against  laying  a  street  railroad  in 
a  .street  that  the  borough  authorities  would 
have  the  right  to  remove  it  forcibly  after  it 
was  laid.  Such  relief  involving  force  is  not 
that  "adequate  remedy"  to  which  litigatits 
are  entitled.  Staviford  v.  Stamford  Horse 
R.  Co.,  36  Am.  &•  Eug.  R.  Cas.  140,  56  Conn, 
381,  15  ,///.  Rep.  749.  I  L.  R.  A.  375. 

Where  a  company  has  dedicated  land  for 
the  [)urpose  of  a  street  which  has  been  ac- 
cepted by  the  nninicipality,  and  maintained 
as  a  street  for  a  number  oi  years  until  it  has 
become  a  prominent  thoroughfare,  there  is 
no  abuse  of  judicial  discretion  in  granting, 
on  the  application  of  the  city,  an  injunction 
to  prevent  the  company  from  constructing 
a  side  track  through  the  street.  Brunstvick 
&•  ir.  R.  Co.  v.  Mayor,  etc.,  of  Waycross,  88 
C,a.  68,  13  S.  E.  Rep.  835. 

Where  a  company  uses  st>  am  in  a  public 
street  without  authority  therefor,  an  injunc- 
tion cannot  issue  to  prevent  the  company 
from  using  the  tracks,  but  only  to  proliihit 
the  use  of  steam.  Tilton  v.  Ne^v  Orleans 
City  R.  Co.,  35  La.  Ann.  1062. 

The  location  of  a  railroad  through  a  pub- 
lic street  in  a  line  not  warranted  by  law  will 
not  be  enjoined  at  the  instance  of  the  owner 
of  an  unimproved  building  lot  sufTcring  no 
present  detriment.  Zabriskie  \.  Jersey  City 
«S-  /?.  R.  Co.,  \lN.  J.  Eq.  314. 

The  construction  of  a  r  dlroad  operated 
by  steam  upon  a  public  highway,  without 
authority  of  law,  is  a  nuisance  which  will  be 
restrained  by  injunction.  Attorney-General 
ex  rel.  v.  Morris  &*  E.  R.  Co..  19  N.  J.  Eq. 
386;  reversed  in  19  X.J.  Eq.  575. 

An  injunction  restraining  the  unlawfid 
construction  of  a  railway  in  a  street  should 
operate  to  restrain  only  such  unlawful  acts 
as  are  specifically  found  to  exist.  Loomis  v. 
Thirty-fourth  St.  R.  To.,  38  Hun  {N.  Y)  517. 

Va.  Code  of  1873,  rli.  56,  §  4,  provided  that 
a  railroad  company  could  only  enter  the 
streets  of  a  city  or  town  upon  the  consent 
of  the  corporate  authorities,  but  could  not 


T^ 


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Is. 


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I 


i 


ii 


r  '■ '    m 

i^:-  i 

i'"' ' 

it'  -' 

P 

642        STREETS   AND   HIGHWAYS    (RAILWAYS   IN),  231,  232. 


invade  any  dwelling  house,  or  any  space 
within  sixty  feet  thereof,  without  tlic  con- 
sent of  the  owner.  By  the  act  of  Jan.  15, 
1875,  this  section  was  amended  by  provid- 
ing iliat  in  case  any  lot  ur  lots  along  the 
street  or  alley  should  be  impaired  in  value 
by  a  railroad,  the  company  should  make 
compensation  "before  crossing  or  occupy- 
ing such  streets  or  alleys."  A  company  was 
enjoined  by  an  abutting  owner  whose  title 
extended  to  the  middle  of  the  street,  and 
the  company  moved  to  dissolve  the  injunc- 
tion on  the  ground  that  the  amendment  re- 
pealed the  provision  that  railroads  could  not 
be  constructed  within  sixty  feet  of  a  dwell- 
ing without  consent.  I/e/<{,  that  even  if  such 
provision  had  been  repealed,  this  was  not 
ground  for  dissolving  the  injunction  where 
the  company  was  attempting  to  occupy  the 
street  without  first  making  compensation. 
//oi^a  V.  Seaboard  &>  K.  R.  Co.,  88  Va.  653, 
14  S.  E.  Rep.  380. 

Where  a  company  locates  its  track  in  a 
public  street  without  payment  of  damages 
to  the  abutting  lot  owners,  the  latter  are 
entitled  to  an  injunction  to  restrain  the 
construction  and  operation  of  the  road. 
Ford  V.  Chicago  Sm  N.  J/'.  R.  Co.,  14  Wis. 
609. — Quoted  in  Drady  v.  Des  Moines  & 
Ft.  D.  K.  Co.,  14  Am.  &  Eng.  R.  Cas.  130,  57 
iowa  393. 

231.  Eiijoiiiiuf;  o(>ciii»atioii  of  ded- 
icated HqiiarcH  mid  cuihiuoum.— The 
owner  of  land  abutting  upon  a  common 
cannot  enjoin  the  construction,  under  au- 
thority from  the  state  officers,  of  a  railroad 
across  it,  even  though  such  railroad  may 
obstruct  travel  between  the  city  and  the 
complainants'  property.  S/ieffitU  «S-  T.  St. 
R.  Co.  V.  Kami,  83  Ala.  294,  3  So.  Rep.  686. 

A  company  authorized  to  construct  and 
operate  a  railway  "  in,  over,  and  across  and 
along  any  ad  all  the  avenues,  streets,  pub- 
lic groiinds,  squares,  and  alleys"  of  a  <  ity 
rlainx  (I  the  right  to  const  met  and  (iper.ite 
its  road  across  a  pul)lic  s(]uaru  which  had 
been  dedicated  by  plat  to  tiic  city.  It  up- 
p<:ared  that  lots  had  been  sold  with  refer- 
ence to  such  square,  and  around  it,  which 
had  been  improved,  and  the  value  of  which 
was  enhanced  on  account  of  the  square,  and 
that  the  city  had  inclosed,  beautified,  and 
adorned  the  same.  //<•/</,  that  the  company 
should  be  perpetually  enjoined  from  all  at- 
tempts to  lay  a  track  through  or  across  the 
inclosed  public  square.  J,icksonville  ^.Jack- 
sonville R.  Co.,  67  ///.  540. 


Persons  who  owned  property  facing  a 
public  square  applied  for  an  injunction  to 
restrain  a  company  from  laying  its  track 
along  the  border  of  the  square,  on  the 
ground  that  it  affected  their  rights  therein, 
and  obstructed  their  light,  air,  prospect, 
and  privilege  of  a  public  promenade.  It 
appeared  that  the  company  had  cunii..  t<;u 
with  the  city  not  to  erect  any  buildings  on 
the  square,  nor  to  suffer  cars  to  stand 
thereon,  and  that  a  street  some  sixty-five 
feet  wide  ran  between  the  track  and  plain- 
tiffs' houses.  Held,  that  the  road  would 
not  be  such  an  annoyance  as  to  amount  to 
a  private  nuisance,  and  an  injunction  should 
be  refused.  Anderson  v.  Roc/iester,  L.  &* 
A'.  F.  R.  Co..  9  How.  Pr.  (N.  Y.)  553. 

An  owner  of  a  city  lot  near  a  common  laid 
out  by  the  state  and  "reserved  forever  to 
the  use  of  the  inhabitants  "  has  a  property 
in  the  common  that  cannot  be  taken  for 
public  use-without  compensation,  and  may 
enjoin  a  railroad  from  appropriating  a  part 
of  it  before  compensation  is  niiide.  Bell  ■v. 
Ohio  Sf  P.  R.  Co.,  I  Grant's  Cas.  (Pa.)  105. 

232.  Eujoiniui;  road  an  a  iiui- 
Naiicc*  —  The  construction  of  a  railroad 
along  streets  to  be  used  for  private  pur- 
poses, and  on  a  route  not  authorized  by  the 
charter  of  the  company,  and  authorized 
only  by  the  municipality  by  a  resolution 
clearly  beyond  its  powers,  may  be  a  public 
nuisance,  but  must  be  abated  by  a  suit  in 
behalf  of  the  state,  and  cannot  be  enjoined 
by  an  abutting  property  owner.  Garnett  v. 
Jacksonville.  St.  A.  &*  H.  R.  R.  Co.,  20 
Fla.  889. 

A  railroad  in  a  city  is  not  necessarily  a 
nuisance,  and  an  injunction  cannot  be  sus- 
tained on  that  ground.  New  Albany  &*  S. 
R.  Co.  V.  O' Daily,  12  /nd.  551. 

A  railroad  upon  a  public  street  is  an  addi- 
tional servitude,  and  where  constructed  and 
operated  without  the  consent  of  the  owner, 
or  com[)ensation  to  him,  it  is  a  trespass; 
and  if  it  obstruct  the  use  and  comfortable 
enjoyment  of  his  preuii.sos,  rendering  access 
to  them  unsafe,  and  work  an  injury  to  him 
distinct  and  different  from  that  sustained 
by  the  public  generally,  it  is  a  private  nut" 
sance,  and  an  injunction  will  lie  at  the  suit 
of  the  owner.     ILni  ington  v.  St.  Paul  ^ 


*  Sec  iilso  aii/r,  183,  2tO. 

Abutting  owner  cannot  enjoin  the  construc- 
tion of  n  privnto  railroad  in  the  street  though  it 
be-  a  c.uisance,  see  as  Am.  &  Eng.  R.  Cai.  337, 

iifistr. 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  233-235.         643 


icing  a 
:tion  to 

track 
on  the 
tlierein, 
rospect, 

••     It 

ings  on 
stand 

xty-five 
plain- 
would 

ount  to 

should 
L.  &* 


S.  C.  R.  Co.,  17  Minn.  215  {Gil.  188),  4  Am. 
Ry.  Rep.  216.  8  Am.  Ry.  Rep.  247. 

An  individual  cannot  maintain  a  suit  to 
restrain  a  nuisance  which  injures  him  only 
in  rights  enjoyed  by  him  as  one  of  the  pub- 
lic. But  where  the  injury  complamed  of  is 
the  building  of  a  railroad  station  in  the 
street,  in  front  of  complainant's  property* 
and  he  owns  the  soil  in  the  street  upon 
which  it  is  built,  the  injury  is  to  his  indi- 
vidual rights,  and  not  to  him  as  part  of  the 
public,  and  the  suit  must  be  brought  in  his 
own  name.  Higbee  v.  Camiien  &»  A.  R.  Co., 
19  N.J.  Eq.  276. 

A  railroad  running  through  the  streets  of 
a  city,  which  does  not  materially  interfere 
with  the  use  of  the  streets  for  ordinary  pur- 
poses or  injure  the  value  of  adjacent  prop- 
erty, cannot  be  restrained  as  a  nuisance. 
Hamilton  v.  New  York  &*  H.  R.  Co.,  9 
Paige  {N.  Y.)  171.— Approved  in  Ander- 
son V.  Rochester,  L.  &  N.  F.  R.  Co.,  9  How. 
Pr.  (N.  Y.)  553.  Quoted  in  Sargent  v. 
Ohio  &  M.  r!  Co.,  I  Handy  (Ohio)  $2. 

The  possibility  that  a  railway  through 
city  streets  may  be  abused  to  the  public  in- 
convenience forms  no  groit  id  for  intercept- 
in';  the  progress  of  its  construction.  The 
right  to  an  injunction  in  such  a  case  accrues 
only  ifler  the  completion  of  the  road,  and 
when  It  is  found  from  actual  ex|>erience  that 
the  running  of  trains  amounts  to  a  nuisance. 
Sargent  v.  Ohio  &*  Af.  R.  i7o.,  i  Handy 
(Ohio)  52.— Quoting  Hamilton  v.  New  York 
&  H.  R.  Co.,  9  Paige  (N.  Y.)  171 ;  Milhau 
V.  Sharp,  15  Barb.  193  ;  Hudson  &  D.  Canal 
Co.  V.  New  York  &  E.  R.  Co.,  9  Paige  323 ; 
Lexington  &  O.  R.  Co.  v.  Applegate,8  Dana 
(Ky.)  289. 

The  law  presumes  that  railroads  are  bene- 
fits, unless  it  otherwise  appears  from  the 
circumstances  cf  the  case.  Sargent  v.  Ohio 
&>  M.  R.  Co.,  I  Handy  {Ohio)  52. 

An  abutting  owner  is  not  entitled  to  an 
injunction  to  restrain  a  railroad  in  the  street 
unless  the  injury  to  him  amounts  to  a  pri- 
vate nuisance,  and  the  damage  is  irrepara- 
ble. Mogee  V.  London  &•  P.  S.  R.  Co.,  6 
Gmnt'sCh.iU.  C.)  170. 

233.  EuJoiiiing  continuing  nui- 
Naiiee  or  trospaMS.*  —  A  railway  con- 
structed in  a  public  street  of  a  city,  without 
authority  of  law,  is  a  continuous  obstruction 
which  amounts  to  a  public  nuisance.  Denver 
&»  S.  R.  Co.  V.  Denver  City  R.  Co..  2  Colo.  673. 


•?;«» 'jo  «!»»/<•,  220. 


The  fact  that  subsequently  to  the  rendi- 
tion of  a  judgment  against  it  the  railroad  has 
been  sold  under  foreclosure  proceedings 
does  not  preclude  the  property  owner  from 
enjoining  the  continued  occupation  of  the 
street  by  the  purchaser  of  the  railroad,  the 
purchaser  I^eing  only  entitled  to  such  rights 
as  were  acquired  by  the  company  constrnct- 
ihg  it.  Harbach  v.  De%  Moines  &»  K.  C.  R. 
Co.,  43  Am.  &*  Eng.  R.  Cas.  115,  80  /ov/a 
593,  44  A^.  ir.  Rep.  348. 

A  judgment  for  damages  obtiiined  against 
a  company  constructing  a  railroad  in  the 
street  merges  anv  defenses  which  it  might 
have  had,  and  the  purchaser,  having  no 
greater  rights,  cannot  plead  in  defense  that 
the  original  occupation  of  the  street  was 
by  the  consent  of  the  property  owners. 
Hvbaih  V.  Des  Moines  &*  A'.  C.  R.  Co., 
43  Am.  i5>»  Eng.  R.  Cas.  11 5,  80  Iowa  593.  44 
A^.  //'.  Rep.  348. 

The  trespass  by  the  purchaser  of  the 
railroad  only  commences  from  the  date 
when  it  entered  upon  the  possession  of  the 
road,  and  the  statute  of  limitation  only 
commences  to  run  from  that  date  <igainst  a 
suit  to  enjoin  it  from  continuing  the  same. 
Harbach  v.  Des  Moines  &*  K.  C.  R.  Co.,  43 
Am.  &'  Eng.  R.  Cas.  115,  80  /o7i>a  593,  44 
<V.  IV.  Rep.  348.— Distinguishing  Pratt  v, 
Oes  Moines  N.  W.  R.  Co.,  72  Iowa  249. 

Equity  will  enjoin  a  trespass  which  is 
continuous  and  invades  proprietary  rights. 
So  where  a  company  enters  and  excavates 
a  pubic  street  against  the  protest  of  abut- 
ting lot  owners,  it  may  be  enjoined,  where 
it  is  only  acting  under  a  claim  of  permission 
from  the  municipality.  Morris  &*  E.  R. 
Co.  v.  Hudson  Tunnel  R.  Co.,  25  N.  J. 
Eq.  384.— Quoting  Hinchman  v.  Palerson 
Horse  R.  Co.,  17  N,  J.  Eq.  75.— Followed 
IN  Pratt  V.  Roseland  R.  Co.,  50  N.  J. 
Eq.  150. 

4.  Procedure. 

a.  In  Actions  at  Law. 

234.  JiiriHdiction.— In  Texas  a  county 
court  has  jurisdiction  of  a  suit  for  dam- 
ages for  the  interruption  and  destruction  of 
an  casement  appurtenant  to  abutting  prop- 
erty, when  the  impairment  is  caused  by  the 
construction  of  a  railroad  track  in  a  street. 
Gulf.  C.  A*  S.  F.  R.  Co.  V.  Graves,  10  Am. 
6-  Eng.  R.  Cas.  199,  i  Tex.  A  pp.  (Civ. 
Cas.)  301. 

235.  Wlio  may  sue.— Under  the  pro- 
vision of  Ohio  Rev.  St.  §  3283.  that  every 


I 


fU.J 


641        STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  830-238. 


m 


railroad  company  occupyjug  a  street  ur 
other  public  ground  under  an  agreement 
with  the  municipal  or  tjthcr  aulliuritics 
"shall  be  responsible  fur  injuries  dune 
thereby  tu  private  or  public  property  lying 
upon  or  near  to  such  ground,"  the  ri^lit  to 
recover  damages  for  such  injuries  is  n(H 
limited  to  the  owners  of  property  imine- 
diulely  upon  the  street  occupied  by  the 
track,  or  other  structures  of  tlic  company, 
but  extends  to  the  owners  of  prui)erty 
which  is  "  near  to  "  any  public  street  thus 
occupied.  Sheplurd  v.  Baltimore  &*  O. 
R.  Co.,  33  Am.  &*  Eii^.  R.  Cas.  437,  130  17. 
S.  426,  9  Sup.  a.  Hep.  598. 

Temporary  inj  iry  sustained  by  a  prop- 
erty owner  on  account  ot  the  obst  uction  of 
a  street  during  the  construction  of  a  r;.il- 
road  is  not  injury  done  to  the  property  it- 
self within  the  meaning  of  Jie  Ohio  statute, 
but  special  damages  arising  therefrom  con- 
stitute a  cause  of  action  apart  from  any 
claim  under  the  statute.  Shepherd  v.  Hal' 
iimore  &•  O.  A'.  Co.,  38  Am.  Sf  Eng.  R.  Las. 
437.  >3o  U.  S.  426,  9  Sup.  a.  Rep.  598. 

A  party  is  not  entitled  to  recover  dam 
ages  for  the  depreciation  of  his  property  in 
consequence  of  the  laying  of  a  railroad  track 
if  the  property  was  not  owned  by  him  at 
the  time  the  track  was  laid.  Dixon  v. 
Baltimore  &*  P.  R.  Co.,  3  Am.  <S-  Eng.  R. 
Cas.  201,  I  Mackey  {D.  C.)  78. 

One  who  has  a  right  of  way  across  a 
street,  not  a  publu  way,  by  grant  from  the 
owner  of  the  fee,  cannot  recover  damages 
under  Mass.  Rev.  St.  ch.  39,  §  56,  from  a 
railroad  company  duly  locating  its  road  over 
and  along  said  street,  and  over  said  right  of 
way.  Boston  &»  W.  K.  Corp.  v.  Old  Colony 
Ji.  Corp.,  12  Cush.  (Mass.)  605. 

Plaintiff  sued  defendant  for  damages  for 
constructing  or  operating  its  road  through 
a  street  upon  which  were  plaintifT's  premises, 
but  alienated  after  the  joinder  of  issue  in 
the  action,  but  before  trial.  J/eld,  that  any 
right  of  action  that  existed  in  plaintiff  fur 
damages  was  not  lost  by  the  conveyance, 
nor  conveyed  to  the  grantee.  ClarJt  v. 
Bochester  City  &*  B.  R.  Co.,  18  A'.  V.  S. 
B.  903,  50  Hun  600,  mem.,  2  N.  Y.  Supp. 

563. 

236.  Liability  of  Ity.*— A  city  which 
has  granted  to  a  company  the  right  to  use 
a  street  does  not  thereby  become  liable  to 
abutting  owners  for  obstructions  placed  in 

*  See  also  aN/r,  211. 


the  street  by  the  company.  Frith  v.  Dubuque, 
45  lo^Ma  406. 

Where  a  city,  under  Ohio  Rev.  St.  {  3283, 
grants  to  a  company  the  right  to  construct 
and  use  its  track  in  a  street,  the  city  is  not 
liable-  tu  an  abutting  lut  owner  for  damages 
to  his  property  resulting  from  the  use  of 
tlie  street  by  the  railroad  in  the  manner 
authorized.  Dillenbach  v.  A'e/iia,  41  Ohio 
St.  207. 

237.  Declaration.  —  A  declaration 
claiming  damages  for  the  diminution  of  the 
rental  or  market  value  of  the  real  estate  uf 
an  adjacent  owner,  which  alleges  that  such 
real  estate  abuts  on  a  street  of  a  town  or 
city,  and  that  such  adjacent  owner  is  also 
the  owner  of  the  soil  to  )he  centre  of  said 
street,  and  that  a  railroad  company  has  laid 
i'.ij  track  along  said  street,  not  averring 
tiiat  the  track  is  located  either  wholly  or  in 
part  on  his  side  of  said  street,  is  demurra- 
ble. Florida  Southern  R,  Co.  v.  Brown,  23 
Ela.  104,  I  So.  Rep.  512. 

238.  Coiuilaiiit.— The  allegation,  in  a 
complaint  for  damages,  of  ownership  with 
reference  to  the  time  of  construction  of  the 
railroad  is  essential,  since  it  is  a  traversable 
fact  and  bears  largely  on  the  measure  of 
recovery.  So  are  the  special  damages  wliich 
a  lot  owner  sustains  beyond  other  citizens 
of  the  town,  and  which  constitute  the  limit 
of  his  recovery  when  the  statute  authorizes 
the  construction  of  the  road  and  an  ordi- 
nance permits  the  use  and  occupation  of  the 
street.  Failure  to  aver  such  damages  in  a 
traversable  manner  renders  the  complaint 
subject  tu  demurrer.  Colorado  Midland  B. 
Co,  V.  Trevarthen,  i  Colo.  App.  152,  27  Pac. 
Rep.  1012. 

In  an  action  by  the  owner  for  using  a 
public  street  for^a  railway,  he  need  not,  in 
his  complaint,  negative  that  defendant  has 
taken  proceedings  to  ascertain  and  pay  the 
compensation.  Gray  v.  First  Div.  St.  P.  &* 
P.  R.  Co..  13  Minn.  315  {Gil.  289). 

In  a  complaint  against  a  company  for 
trespass  in  laying  its  tracks  in  a  public 
street,  between  the  centre  thereof  and  plain- 
tiff's lots,  it  is  sufficient  for  plaintiff  to  allege 
his  ownership  of  the  lots  and  the  commis- 
sion of  the  trespass  thereon,  and  piaititiff's 
ownership  of  the  fee  of  the  street -the  lotus 
in  i/wtf— will  be  implied  from  the  averment 
of  his  ownership  of  the  adjacent  lots. 
spencer  v.  St.  Paul  &*  S.  C.  R.  Co.,  21  If  inn. 
362.  -Followed  in  Wampach  v.  St  Paul 
&  S.  C.  R.  Co.,  21  Minn.  364. 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  230-241. 


Gil 


ubuquf. 


230.  Petition. — A  count  in  a  petition, 
based  on  a  claim  that  the  company  violates 
a  city  ordtnance  regulating  the  speed  of 
trains  by  running  its  trains  at  such  a  speed 
as  to  shake  plaintifl's  house,  is  demurrable 
when  the  petition  contains  no  averments 
that  plaintiff's  house  abuts  on  the  street 
through  which  the  railway  runs.  Hitchcock 
V.  Chicago,  St.  P.  &*  K.  C.  K.  Co.,  88  /owa 
242,  55  A^.  W.  Kep.  337. 

A  petition  by  an  abutting  owner  is  not 
vulnerable  to  a  demurrer  because  it  claims 
more  than  plaintiff  is  entitled  to.  Hitch- 
cock V.  Chicago,  St.  P.  &»  A'.  C.  K.  Co.,  88 
Iowa  242,  55  A'.  IV.  Rtp.  337. 

In  an  action  by  an  abutting  owner  his 
.  petition  should  contain  averments  to  the 
effect  that  the  acts  of  defendant  were  not 
merely  negligent,  but  that  the  obstruction 
ill  front  of  plaintiff's  lot  was  wrongful  and 
with(jut  right  unless  damages  were  paid. 
Hitchcock  V.  Chicago,  St.  P.  &*  K.  C.  R.  Co., 
88  Jouta  242,  55  A',  ly.  Rep.  337. 

Under  the  Texas  Constitution,  a  city 
cannot  damage  property  for  public  purposes 
without  just  compensation  ;  hence  it  cannot 
^xjM\.  permission  to  a  company  to  do  so 
by  building  its  road  on  the  street  in  such 
u  way  as  to  damage  an  abutting  owner; 
tlierefore  where  suit  is  brought  to  recover 
such  damages  it  is  nut  necessary  *3  i^ver 
carelessness,  or  negligence  in  the  opera. ion 
of  the  road,  or  in  its  construction,  nor  is  it 
necessary  tu  aver  that  the  city  charter  and 
ordinances  did  not  authorize  the  building 
of  the  road.  Gulf,  C.  «S-  5.  F.  R.  Co.  v. 
Thompson,  2  Tex.  App.  (Civ.  Cas.)  500. — 
Approving  Gulf.  C.  &  S.  F.  R.  Co.  v. 
Graves,  i  Tex.  App.  (Civ.  Cas.)  301 ;  Gulf. 
C.  &  S.  F.  R.  Co.  V.  Eddins,  60  Tex.  656. 
Distinguishing  Houston  &  T.  C.  R.  Co.  v. 
Odiim,  53  Tex.  351. 

24rO.  Answer.  —  In  an  action  for  dam- 
ages caused  by  raising  the  grade  of  a  street 
five  feet,  tlicreby  shutting  off  access  thereto 
fruiii  abutting  property,  an  answer  alleging 
that  the  right  to  enter  upon  the  street  and 
change  the  grade  thereof  was  authorized  by 
an  ordinance  of  the  city  is  demurrable  for 
want  of  sutHcient  facts,  when  the  charter  of 
the  city,  while  authorizing  the  grant  of 
franchises  to  lay  railway  tracks,  provides 
tliat  "  no  railway  track  can  thus  be  laid 
down  until  the  injury  to  property  abutting 
upon  the  street  ♦  ♦  ♦  has  been  ascertained 
and  compensated."  Hatch  v.  Ta,onia,  O.  vS-« 
G.  H.  R.  Co.,  0  IVas/t.  1,  32  Pac.  Rep.  10^.3. 


241.  Statute  of  limitations  as  a 
bar.*— A  company,  in  1880.  built  its  track 
and  side  tracks  across  a  street  and  on  a  lot 
owned  by  it,  lying  next  to  plaintiff's  prop- 
erty, and  more  than  four  years  thereafter 
plaintiff  brought  suit  for  the  depreciation  in 
value  of  his  lot,  caused  by  the  building  and 
operation  of  the  road,  and  for  subsequently 
building  and  operating  additional  tracks 
across  the  street  and  iot.  Held:  (i)  that 
in  no  event  could  plaintiff  recover  for  any 
depreciation  in  the  value  of  his  property  by 
reason  of  any  acts  of  the  company,  either  in 
mat',.crs  of  construction  or  operation,  the 
hab^<  al  doing  or  the  commencement  of  the 
doing  of  which  acts  was  at  a  ds^te  more  than 
four  years  prior  to  the  date  of  suit  brought ; 
(2)  that  plaintiff  could,  within  four  years 
after  the  date  of  bttilding  of  the  original 
railroad,  bring  suit  for  damages  for  the  de> 
preciation  in  value  of  his  premises  caused 
by  such  railroad  construction  and  operation; 
and  whether  he  did  or  did  not  bring  such 
suit,  every  element  of  damages^  past  and 
future,  that  was  or  would  have  been  properly 
admissible  in  that  suit,  either  in  matters  of 
construction  or  operation,  must  be  excluded 
from  consideration.  Omaha  d'  R.  V.  R.  Co. 
V.  Moschel,  56  Am.  &-  Eng.  R.  Cas.  674.  38 
Neb.  281,  56  N.  W.  Rep.  875. 

Ohio  Rev.  St.  §  3283,  after  providing  how 
railroad  companies  may  agree  for  the  use  oi 
public  streets,  provides  that  every  company 
laying  a  track  upon  any  street,  alley,  road, 
or  ground  shall  be  liable  for  injuries  done 
to  any  property  lying  upon  or  near  such 
ground,  "  which  may  be  recovered  by  civil 
action  brought  by  the  owner  *  *  ^  at  any 
time  within  two  years  from  the  completion 
of  such  track."  HeU,  that  the  statute  con- 
templates full  recovery  for  all  injuries  done 
within  the  two  years,  and  not  a  succession 
of  actions  from  time  to  time  as  the  injuries 
may  occur.  Graf/on  v.  Baltimore  &*  O.  R. 
Co.,  17  Am.  &»  Eng.  R.  Cas.  200,  21  Fed, 
Rep.  309. 

Ohio  Rev.  St.  §  6448  is  limited  to  cases 
where  the  company  takes  possession  of  and 
is  occupying  or  using  the  land  of  another, 
and  it  does  not  displace  the  remedy  ex- 
pressly given  by  the  above  section  3283,  nor 
modify  its  extent  and  application.  The  two 
sections  are  consistent  and  furnish  an  elec- 
tion of  remedies,  but  a  plaintiff  cannot  have 
l)oth,  either  concurrently  or  in  succession. 


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646        STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  242-244. 


Grafton  v.  Jialiimort  fi-  0.  U.  Co.,  17  Am. 
&*  Efig.  K.  Cas.  200,  21  Fed.  Rtp.  309. — AP- 
PLYING Hatch  V.  Cincinnati  &  I.  R.  Co.,  18 
Ohio  St.  92 ;  Lawrence  R.  Co.  v.  Cobb,  35 
Ohio  St.  94 ;  Lawrence  R.  Co.  v.  Williams, 
35  Ohio  St.  168 ;  Columbus,  S.  &  C.  R.  Co. 
V.  Mowatt,  3S  Ohio  St.  284;  Scioto  Valley 
R.  Co.  V.  Lawrence.  38  Ohio  St.  41  ;  Little 
Miami  R.  Co.  v.  Hambleton,  40  Ohio  St. 
496.  Reconciling  Atlantic  &  G.  W.  R. 
Co.  V.  Rubbins,  35  Ohio  St.  531. 

242.  Evidtiiice  -  Adniigsiblllty.*— 
In  an  action  by  an  adjacent  owner  against 
a  railway  company  for  damages  for  the  oc- 
cupation of  a  street,  whereby  access  to  his 
property  is  obstructed  and  its  value  depre- 
ciated, the  deed  of  right  of  way  by  the 
owner  is  admissible  in  evidence.  Frith  v. 
Dubuque,  45  Iowa  406. 

In  an  action  for  damages  caused  to  abut- 
ting lots  by  laying  a  track  tiirough  an  alley, 
the  statements  as  to  the  value  of  the  lots 
made  by  the  party  whose  administrator 
brings  tlie  action,  and  made  at  the  time  of 
the  appropriation,  are  admissible.  Central 
Branch  U.  P.  R.  Co.  v.  Andrews,  33  Am.  &* 
Eng.  R.  Cas.  205,  37  Kan.  641,  16  Pac.  Rep, 
338 ;  former  appeals  26  Kan.  702.  30  A'rtM. 
590,  2  Pac.  Rep.  677,  34  Kan.  563.  9  Pac. 
Rep.  213,  37  Kan.  162,  14  Pac.  Rep.  509. 

A  company  was  authorized  by  a  borough 
ordinance  to  construct  its  roadbed  upon  a 
street,  provided  it  should  conform  to  a  cer- 
tain grade  shown  by  a  drawing  attached  to 
the  ordinance,  no  grade  for  the  street  hav- 
ing been  previously  established  by  the  bor- 
ough. In  an  action  against  the  company 
to  recover  damages  for  injuries  to  lots  abut- 
ting upon  the  street,  caused  by  an  embank- 
ment made  by  the  company  in  the  construc- 
tion of  its  roadbed  in  accordimce  with  the 
ordinance,  the  ordinance  is  inadmissible  as 
a  defense  relieving  the  company  from  dam- 
ages. Du/i-e  v.  /ialtliiiore  &^  C.  V.  A'.  Exten- 
sion Co..  129  Pa.  .St.  422.  18  Atl.  Rep.  566. 

243.  Sufficiency  of  evidence.  —  In 
an  action  against  a  company  for  injury  to 
property  by  reason  of  the  widening  of  an 
embankment  in  the  street  in  front  of  the 
property  and  the  construction  and  operation 
of  an  additional  track  thereon,  the  surface 
of  the  embankment  being  at  the  established 
grade  of  the  street,  and  no  evidence  being 
introduced  by  plaintiff  showing  how  much 


'Evidence  on   the  question  of  damages,  see 
/><»/,  204-271. 


the  market  value  of  the  property  was  dimin- 
ished by  the  increased  servitude,  nor  any 
legitimate  evidence  of  actual  damages  sus- 
tained, a  nonsuit  should  have  been  ordered. 
Denver  6-  R.  G.  K.  Co.  v.  Costes,  i  Colo.  App. 
336,  28  Pac.  Rep.  1 1 29. 

Where  an  individual  sues  for  damages  for 
taking  a  highway  over  his  land  for  railroad 
purposes,  and  the  evidence  does  not  show 
what  interest  the  public  had  in  the  soil  of 
the  highway,  the  presumption  is  that  it  had 
but  an  easement.  Louisville,  E.  &*  St.  L, 
R.  Co.  V.  Lanter,  47  ///.  App.  339. 

Evidence  that  defendant  company  dug  a 
cut  from  four  to  six  feet  deep  in  a  street 
in  front  of  plaintifT's  building,  leaving  no 
room  between  the  cut  and  the  sidewalk  for 
vehicles  to  pass  each  other,  and  that  plain'- 
tiff's  building  was  endangered  by  the  sparks 
emitted  from  passing  engines  of  defendant, 
is  sufficient  to  sustain  a  .'erdict  and  judg- 
ment for  damages  against  the  company. 
Texas  &*  N.  O.  R.  Co.  v.  Goldberg,  32  Am. 
&-  Eng.  R.  Cas.  240.  68  Tex.  685.  5  S.  VV. 
Rep.  824. 

A  company  waF  permitted  by  a  city  to  run 
its  track  along  a  street  only  thirty  feet 
wide.  Plaintiff  complained  that  the  pass- 
ing trains  caused  two  houses  owned  by  him 
to  vibrate  and  the  plaster  to  fall  off  the 
walls,  and  alleged  loss  of  tenants  thereby, 
but  the  evidence  as  to  any  structural  injury 
was  contradictory,  and  the  court  held  that 
it  was  not  sufficiently  made  out.  Held,  that 
plaintiff  was  not  entitled  to  compensation 
under  the  Railway  Act.  In  re  Devlin,  40 
U.  C.  Q.  B.  160.  —  Following  Hammer- 
smith &  C.  R.  Co.  V.  Brand,  L.  R.  4  H. 
L.  171. 

244.  Instructions  to  tlie  Jury.  —  A 
party  chiimed  damages  by  the  location  of  a 
side  track  in  the  street  close  to  his  lots. 
The  court  instructed  the  jury  that  the  dam- 
ages could  only  be  such,  in  kind,  as  lots  not 
lying  or  abutting  on  the  same  street,  hut  in 
the  vicinity,  did  not  sustain  in  any  degree. 
Held,  that  the  instruction  was  erroneous,  as 
it  virtually  cut  off  all  claim  for  damages. 
Mix    V.    Lafayette,   B.   &*   M.    R.   Co.,  67 

///.  3'9. 

The  court  further  instructed  the  jury,  at 
the  instance  of  the  compiiny,  that  "  the  law 
of  this  state  does  not  grant  indemnity  for 
all  loss  or  damage  occasioned  by  the  build- 
ing of  a  railroad,  such  as  inconvenience 
arising  from  the  crossing  of  railroad  tr.tcks 
by  the  public  or  individuals,  or  from  noise 


' 


STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  24i5,  240.         647 


dimin. 
lor  any 
ges  sus- 
•rderecl. 
lo.  App. 

Ages  for 

ailroad 

Qt  show 

soil  of 

it  had 

St.  L. 


and  confusion  of  passing  trains,  smoke  from 
same,  or  frightening  horses."  The  evidence 
showed  that  the  track  was  in  tiie  street, 
within  ten  to  eighteen  feet  of  the  front  of 
lots  abutting  on  the  street.  Held,  that  the 
instruction  was  improper,  as  calculated  to 
mislead  the  jury.  Mix  v.  Lafayette,  li.  «J* 
M.  R.  Co.,  67  ///.  319. 

In  an  action  to  recover  damages  to  abut- 
ting property  there  is  no  error  in  an  instruc- 
tion that  if  the  property  is  rendered  less 
valuable  by  the  construction  and  opera- 
tion of  the  road  the  jury  shall  find  for 
plaintiff,  when  they  have  been  instructed 
that  he  cannot  recover  for  injury  suflfercd 
in  common  with  the  public  at  large.  Ft. 
Worth  <S-  R.  G.  R.  Co.  v.  Downie,  82  Tex. 
383.  I^5.  W.  Rep.  620. 

In  an  action  against  a  company  by  an 
adjoining  owner,  for  damages  for  building  a 
track  on  the  street  ~  front  of  his  property, 
several  witnesses  testified  as  to  the  damage 
caused  by  cutting  away  part  of  the  street, 
while  witnesses  for  the  com()any  testified 
that  the  street  was  improved  thereby.  The 
court  instructed  the  jury  that  the  question 
for  them  to  determine  was  whether  jiliiin- 
tiflf's  property  had  been  permanently  dam- 
aged by  putting  in  the  track  and  taking  up 
a  part  of  the  street.  If  eld,  not  erroneous, 
as  expressive  of  the  weight  of  evidence. 
McFadden  v.  Schill,  84  Tex.  77.  '9  S.  If. 
Rep.  368. 

A  charge  which  limits  or  restricts  plain- 
tiff's right  of  recovery  to  the  entire  destruc- 
tion of  his  easement  in  the  street  upon 
which  his  lot  abuts  is  erroneous.  Williams 
V.  Gulf,  C.  &•  S.  F.  R.  Co.,  I  Tex.  App.  (Civ. 
Cas.)  131. 

i.  In  Injunction  Suits. 

245.  Pnrtlcs.  —  Where  occupiers  of  a 
street  file  a  bill  to  restrain  lessees  of  a  rail- 
way company  from  building  upon  the  street, 
which  the  company  had  closed  up  under 
the  authority  of  lis  special  act,  the  company 
and  the  attorney-general  should  be  made 
parties.  Temple  v.  Flower,  ^i  L.J,  CA.  604, 
20  W.  R.  587,  26  L.  T.  657. 

Where  a  bill  charges  that  municipal  au- 
thorities, a  street- mil  road  company,  and  a 
manufacturing  compa'v  have  combined  to 
procure  permission  unlawfully  for,  and  to 
construct  a  track  through,  the  streets  for  a 
manufacturing  company,  it  is  proper  to 
make  them  all  defendants.  Mayor,  etc.,  of 
Macon  v.  Harris,  73  Ga.  428. 


The  owners  of  several  and  distinct  lots  of 
land,  having  no  common  interest,  cannot 
join  in  a  bill  to  enjoin  a  nuisance  common  to 
all  where  the  grounds  of  relief  are  a  special 
injury  to  each  one's  properly.  An  mfor- 
mation  filed  in  the  name  of  the  attorney- 
general  on  the  relation  of  such  owners  will 
not,  therefore,  be  considered  as  a  bill  filed 
in  their  behalf,  where  the  case  disclosed  is 
not  such  that  relief  can  be  afforded  at  the 
instance  of  the  attorney-general.  Morris 
&>  E.  R.  Co.  V.  Prudden,  20  N.  J.  Eq.  530. 

Each  of  two  supervisors  by  whom  a  town- 
ship is  divided  into  two  districts,  for  con- 
venience in  repairing  roads,  etc.,  has  power 
of  his  own  motion  to  maintain  a  bill  m  the 
name  of  the  township  to  enjoin  an  obstruc- 
tion to  a  public  road  in  the  district  under 
his  immediate  control.  Appeal  of  North 
Manheim  Tp.,  {Pa.)  36  Am.  <S-  Etfg^.  R.  Cas. 
194,  14  ////.  Rep.  137. 

The  complaint  of  a  private  individual  is 
not  ground  for  a  court  of  equity  to  grant  an 
injuncti  >n  to  restrain  a  company  from  lay- 
ing rails  in  the  streets  of  a  city.  Peterson 
v.  A'livy  Yard.  li.  S.  A-  F.  R.  Co.,  5  PAila. 
(Pa.)  199.  —  DlSTi.VGUlSHEO  IN  Philadel- 
phia V.  Thirteenth  &  F.  St.  Pass.  R.  Co.,  8 
Phila.  648. 

240.  Bill. — An  action  to  enjoin  the  lay- 
ing of  a  track  in  a  street  cannot  be  joined 
with  one  asking  damages  for  a  track  already 
laid  there,  under  Iowa  Code,  §  2630,  provid- 
ing for  the  joiner  in  one  petition  of  differ- 
ent causes  of  action,  except  where  it  may  be 
prosecuted  by  the  same  kind  of  proceedings. 
no7vman  v.  Chicago,  St.  P.  &*  K.  C.  R.  Co., 
86  Iowa  490,  53  N.  U'.  Rep.  327. 

A  bill  alleging  that  an  alley  over  which 
complainants  arc  entitled  to  a  right  of  way 
is  the  only  reasonably  convenient  mode  of 
reaching  their  property  and  place  of  busi- 
ness, the  streets  binding  thereon  being  al- 
ready rendered  nearly  impassable  by  railroad 
tracks,  and  that  defendants  are  about  to 
obstruct  this  alley  by  laying  a  railroad  track 
across  it,  by  which  complainants  will  be 
subjected  to  daily  irremediable  damage,  is 
sufficient  to  warrant  the  granting  of  an  in- 
junction to  prevent  such  obstruction.  Ro- 
man V.  Strauss,  10  Md.  89. 

Abutting  owners  upon  a  city  street,  on 
the  public  plan  but  unopened,  entered  into 
an  agreement  with  a  company,  grantmg  to 
the  latter  the  use  of  twenty  feet  of  the  mid- 
dle of  the  street  for  its  roadbed,  free  Of 
cliargf.  the  company  to  curb  and  pave  fif- 


I 


M8        STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  247,  248. 


?   ; 


V 

l|: 

||  1 

|l  - 

I5i 

IV 

teen  feet  on  each  side  tlicreof,  "  to  remain 
open  for  public  use  as  a  public  highway  for- 
ever." Held,  that  a  bill  filed  by  a  successor 
to  the  title  of  one  of  the  abutting  owners, 
to  compel  thecompany  to  remove  its  tracks 
laid  on  the  street  outside  the  twenty  feet 
granted,  was  demurrable  for  want  of  ,in 
averment  that  the  tracks  complained  of  had 
been  laid  without  authority  of  law.  KembU 
V.  Philadelphia,  G.  6-  A^.  A'.  Co.,  140  Pa.  St. 
14,  21  Atl.  Rep.  225. 

247.  C'oiiiitlniiit.  —A  complaint  alleg- 
ing that  plaintiffs  arc  owners  of  lots  abutting 
on  a  certain  street  in  a  city,  that  defendant 
has  taken  possession  of  said  street  in  front 
of  said  lots,  and  has  laid  down  its  track 
thereon  and  used  the  same,  but  not  alleging 
that  defendant  intends  or  threatens  to  con- 
tinue such  use,  to  tlic  injury  of  platntifTs, 
or  at  all,  does  not  show  a  good  ground  for 
an  injunction  to  prevent  defendant  from 
continuing  to  maintain  and  use  such  rail- 
way. Roelker  v.  St.  Louis  5-  S.  E.  R.  Co., 
50  Fnd.  1 27. 

A  complaint  alleging  the  obstruction  of 
public  streets  by  the  construction  of  a 
railroad  therein  must  show  that  plaintiff's 
access  to  his  premises  (not  adjacent  to  such 
obstructions)  was  thereby  so  impaired  as  to 
entitle  him  to  maintain  a  private  action 
therefor.  Lakkie  v.  Chicago,  St.  P.,  Af.  <S- 
0.  R.  Co.,  44  Minn.  438.  46  .V.  ff^.  Rep.  912. 

A  complaint  by  an  abutting  owner  owning 
to  the  centre  of  the  street,  alleging  that  de- 
fendant company  unlawfully  entered  ujion 
and  has  ever  since  operated  its  trains  on  the 
adjoining  half  of  the  street,  upon  the  track 
of  another  company,  suflicieiitly  shows  that 
defendant's  occupancy  is  unlawful,  and  does 
not  imply  that  defendant  is  entitled  to 
occupy  the  street  by  authority  from  such 
other  company,  or  otherwise.  Aforrell  v. 
Chicago,  M.  A*  .SV.  P.  R.  Co.,  49  Minn.  526, 
52  A^.'  ff.  Rep.  140. 

Where  the  object  of  a  suit  is  to  restrain 
the  extension  of  a  railroad  in  a  city,  an  in- 
junction should  not  be  awarded  against  the 
city  where  it  only  appears  that  it  granted  its 
permission  to  extend  the  road,  but  where 
there  is  no  allegation  or  proof  that  the  city 
is  to  do  anything  to  obstruct  the  streets,  or 
perform  any  other  act  connected  with  the 
extension.  People  v.  New  York  &*  If.  R. 
Co.,  45  ^"rl'-  ('V.  K.)  73. 

Where  an  injunction  is  sought  to  restrain 
a  railway  in  a  street,  on  the  ground  of  a 
special  injury  to  plaintiff,  an  abutting  nwnor. 


by  preventing  access  to  his  lot,  he  should 
specify  this  grievance  in  his  complaint,  A 
general  charge  that  the  road  will  be  spe- 
ci.illy  injurious  to  him  is  not  sufficient.  But 
if  no  motion  is  made  to  require  the  com- 
plaint to  be  reformed,  and  no  objection  is 
made  to  the  introduction  of  evidence  tend- 
ing to  show  such  injury,  the  objection  will 
be  considered  waived.  Wetmore  v.  Story,  3 
Abb.  Pr.  {JV.  y.)  262. 

The  mere  inconvenience  of  access  to 
abutting  property  occasioned  by  the  lawful 
use  of  the  street  by  a  company  is  not 
actionable.  So  a  complaint  does  not  state 
a  cause  of  action  which  merely  alleges  that 
defendant  made  its  track  so  near  the  side- 
walk in  front  of  plaintiff's  premises  ns  not 
to  leave  sufficient  space  for  a  vehicle  to 
stand,  whereby  he  and  his  family  were  in- 
commoded. /Bellinger  v.  Forty-second  St. 
<S-  G.  S.  F.  R.  Co.,  50  A'.  V.  206,  3  Am.  Ry. 
Rep.  77.— Di.STiNouisiiED  IN  Story  v.  New 
York  El.  R.  Co..  90  N.  Y.  122,  11  Abb.  N. 
Cas.  236.  Rkvikwei)  in  Reining  v.  New 
York,  L.  ft  W.  R.  Co.,  40  N.  Y.  S.  R.  392. 

A  city  granted  to  an  electrical  street-rail- 
way company  the  right  to  lay  a  double  track 
in  a  street  in  which  it  had  already  granted 
the  right  to  lay  a  double  track  to  another 
company.  Refore  the  electrical  company 
commenced  work,  the  company  having  the 
prior  grant  sued  to  enjoin  them  from  liiying 
their  tracks,  and  to  have  the  ordinance 
granting  the  franchise  declared  void,  alleg- 
ing th.it  it  had  constructed  a  single  track, 
and  that  if  it  were  to  lay  down  its  other 
track,  and  the  electrica'  company  its  two 
tracks,  other  modes  of  oiiblic  travel  would 
be  obstructed  and  the  poles  and  wires  of 
t»e  electrical  company  would  interfere  with 
plaintiff's  right  as  the  owner  of  property 
abutting  on  the  street.  Held,  th:.t  (he  alle- 
gations were  not  sufficient  to  warrant  an 
injunction.  Ogden  City  R.  Co.  v.  Ogden 
C/'/y,  46  Am.  &*  Eng.  R.  Cas.  loi,  7  l/tah 
207.26  Pac.  Rep.  288.— FoLLOwiNn  Hender- 
son V.  Ogden  City  R.  Co..  7  Utah  199. 

248.  Itellef  granted.— In  enjoining  a 
company  from  using  a  highway,  where  it 
has  been  diverted  by  the  company  from  its 
location,  but  left  in  such  close  proximity  to 
the  railway  as  to  make  it  dangerous  for 
public  travel,  it  is  proper  for  the  court  to 
prescribe  what  change  in  the  location  shall 
operate  to  supersede  the  injunction.  Statt 
ex  ret.  v.  Dayton  Sr*  S.  E.  R.  Co.,  5  Am.  d^ 
Eng.  R.  Cas.  312,  36  Ohio  St.  434. 


STREETS   AND    HIGHWAYS   (RAILWAYS   IN),  849. 


649 


ould 
.     A 

spe- 
But 
cotn- 
lon  ia 
tend- 
will 


a.  NecetiUy  of  Comp«nMtion.  and  Who 
Entitled. 

240.  NeceMity  of  oompensatloii, 
ireiierttlly.  —  If  a  party  dedicates  a  public 
street  through  hit  land,  and  a  railroad  com- 
pany afterwards  procures  a  condemnation 
of  land  along  the  street  for  its  track,  and 
damagen  are  awarded  to  him  therefor,  this 
is  no  reason  why  he  should  not  be  awarded 
further  damages,  to  be  paid  by  another  raiU 
road  company  which  seeks  to  build  another 
track  on  the  same  street.  Southtrn  Pac.  R. 
Co,  V.  Kttd,  41  Cal,  256,  3  Am.  Ry.  Rep.  46. 
— DiSTiNGursHKD  IN  Colorado  C.  R.  Co.  v. 
Moliandm,  4  Colo.  154. 

It  is  not  necessary,  in  order  to  recover 
dama(;es,  that  property  should  lie  along  or 
front  upon  the  line  of  a  railroad.  If  it  is 
adjacent,  or  so  near  that  a  direct  physical 
injury  is  done,  it  is  sufficient.  East  St. 
Louis  V.  Lockhtad,  7  ///.  App.  83. 

The  right  to  damages  secured  by  the  Con> 
stitution  to  an  abutting  owner,  where  his 
property  is  injured,  extends  as  well  to  cases 
where  the  damage  is  caused  by  legal  acts  as 
to  those  in  which  it  is  the  result  of  an 
illegal  trespass.  Maltman  v.  Chicago,  M. 
<S*  St.  P.  R.  Co.,  41  ///.  App.  229. 

The  right  which  the  owner  of  a  lot  has  to 
the  enjoyment  of  an  adjoining  street  is  part 
of  his  property,  and  can  only  be  taken  for 
public  use  on  just  compensation  being 
made,  pursuant  to  the  Constitution.  Tatt 
V.  Ohio  6-  M.  R.  Co.,  7  Ind.  479.— 
Applied  in  Conlon  v.  City  R.  Co.,  8  Nov. 
Sc.  209.  Criticised  in  Adams  t/.  Chicago, 
B.  &  N.  R.  Co.,  36  Am.  &  Eng.  R.  Cas.  7, 
39  Minn.  286,  39  N.  W.  Rep.  629,  i  L.  R.  A. 
493-  Followed  in  Huiton  v.  Indiana  C. 
R.  Co.,  7  Ind.  522.  Reviewed  in  Cox  v. 
Louisville,  N.  A.  &  C.  R.  Co.,  48  Ind.  178; 
Virginia  A  T.  R.  Co.  v.  Lynch,  13  Nev.  92. 
—Martin  v.  Chicaj^o.  S.  F.  6-  C.  R.  Co.,  47 
Mo.  App.  452.  Starr  v.  Camden  &*  A.  ff. 
Co..  24  A^.  /  Z.  592.— DiSTINUUISHIHG 
I'rcsbyterian  Soc.  i>.  Auburn  &  R.  R.  Co.,  3 
Hill  (N.  Y.)  567;  Case  of  Philadelphia  &  T. 
U.  Co.,  6  Whart.  (Pa.)  25;  Springfield  v. 
Connecticut  River  R.  Co.,  4  Cush,  (Mass.) 


ETC 


•See  alsd  Crossings,  Injuries  to  Persons. 
C,  AT,  .•|61-.3««. 


Damages  for  the  conitruction  of  railroads  in 
hiKhwayn  or  across  streets,  see  notes,  2  Am.  & 
Eno.  R.  Cas.  464;  32  /</.  251;  36  A/.  16;  50  /,/. 
315;  38  /,/.  443,  aittr.;  8  L   R,  ,\.  i--,. 


71.  Reviewing  Clarence  R.  Co.  v.  Great 
North  of  Eng.  R.  Co.,  4  Q.  B.  46.— Gu/f,  C. 
6*  5.  F.  R.  Co.  V  Fddins,  60  Tex.  6j6.— 
Followed  in  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Bock,  63  Tex.  245.-C«//,  C.  &*  S.  F.  R.  Co. 
V.  Boch,  63  rex.  245.— Following  Gulf,  C, 
&  S.  F.  R.  Co.  V.  Eddins.  60  Tex.  656. 

Where  a  railroad  crosses  a  street  at  such 
an  angle  that  plaintiff's  lot  lies  opposite  to 
a  portion  of  an  embankment  rendered  nec- 
essary for  the  construction  of  the  roadbed, 
though  not  opposite  to  any  portion  of 
rails  and  ties,  plaintiff  is  entitled  to  recover 
damages  therefor,  under  Iowa  Code,  §  464, 
providing  that  no  "railway  track"  can  bo 
located  in  the  streets  or  public  phces  of  a 
city  until  after  the  injury  to  the  pro|)erty 
abutting  thereon  has  been  ascertained  and 
compensated  for.  Gates  v.  Chicago,  St.  P. 
&'  K.  C.  R.  Co.,  50  Am.  5-  Eng.  R.  Cas.  164. 
82  Iowa  518,  48  A'.   IV.  Rep.  1040. 

Where  a  company  is  authorized  to  build 
into  a  city  which  owns  the  title  to  its 
streets,  sucli  streets  cannot  be  subjected  to 
the  use  of  the  railroad  without  the  consent 
of  the  city,  and  without  an  assessment  and 
payment  of  damages  according  to  law. 
Donnaher  v.  State,  16  Miss.  649.-- DISTIN- 
GUISHING Lexington  &  O.  R.  Co.  v.  Apple- 
gate,  8  Dana  (Ky.)  289.  Quoting  Presby- 
terian Soc.  V.  Auburn  &  R.  R.  Co.,  3  Hill 
(N.  Y.)  570;  Tuckahoe  Canal  Co.  v.  Tucka- 
hoc  R.  Co.,  II  Leigh  (Va.)  76. 

Where  the  owners  of  land  dedicate  a 
street  iidjacent  thereto,  and  "  covenant  and 
agree  that  said  street  shall  forever  hereafter 
be  kept  open  for  the  use  of "  such  grantors, 
their  heirs  and  assigns,  their  grantees  have 
an  appurtenant  right  of  way  in  such  street 
which  cannot  be  impaired  by  legislation 
allowing  a  company  to  occupy  it,  except  on 
the  condition  of  making  compensation. 
Methodist  Episcopal  Church  v.  Pennsylvania 
R.  Co..  50  Am.  &*  Eng.  R.  Cas.  217, 48  A',  /. 
Ef.  452,  22  Atl.  Rep.  183. 

Even  the  Icgislattfre  cannot  authorize  the 
taking  for  ordinary  railroad  purposes,  with- 
out compensation,  of  land  used  .is  a  public 
street.  Jersey  City  &*  li.  R.  Co.  v.  /ersey  City 
&*  H.  Horse  R.  Co..  20  A^  J.  Eq.  61  ;  reversed 
in  2\  N.J.  Eq.  550.  Presbyterian  Soc.  v.  Au- 
burn 6-  R.  R.  Co.,  3  Hill  (N.  F.)  567.— Fol- 
lowing Bloodgood  V.  Mohawk  &  H.  R.  R. 
Co.,  18  Wend.  (N.  V.)  9;  Fletcher  r.  Auburn 
A  S.  R.  Co.,  25  Wend.  462.— Approved  in 
H  inch  man  v,  Patcrson  Horse  R.  Co.,  17  N. 
J     Ki].    75-      niSTiNGUisiiEi)   IN    Starr    v. 


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650 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  ano. 


Camden  &  A.  R.  Co.,  34  N.  ).  L.  593 ;  Plant 
V.  Long  Island  R.  Co.,  10  Barb.  (N.  Y.)  26. 
Followed  in  Hastings  &  G.  I.  R.  Co.  v. 
Ingalls,  30  Am.  &  Eng.  R.  Cas.  60,  15  Neb. 
133 ;  Williams  v.  New  York  C.  R.  Co.,  16  N. 
Y.  97.  QuoiEO  IN  Doiinaticr  v.  State,  16 
Miss.  649.  Reviewed  in  Davis  v.  Mayor, 
etc.,  of  N.  Y.,  14  N.  Y.  506;  Craig  v.  Roch- 
ester City  &  n.  R.  Co.,  39  N.  Y.  404  ;  Corey 
V.  Buffalo, C.  &  N.  Y.  R.  Co..  33  Barb.  482.— 
Burt  V.  Lima  &*  H.  F.  R.  Co.,  48  N.  Y.  S. 
Jf.  553.  21  JV.  v.  Supp.  482. 

The  dedication  of  land  for  the  use  of  a 
public  highway  only  contemplates  its  use 
for  ordinary  highway  purposes,  and  docs 
not  prevent  the  owner  of  the  fee  from 
recovering  damages  against  a  railroad 
company  that  occupies  the  highway  for  its 
track,  witiioiit  his  consent  and  without 
making  compensation.  Williami  v.  Ntw 
York  C,  A',  Co.,  16  JV.  Y.  97;  rnifr.iing  18 
Biirb.  222.— Criticising  Case  of  Philadel- 
phia &  T.  K.  Co..  6  Whart.  (Pa.)  25.  DlS- 
'liNUUlSlilNU  Drake  v.  Hudson  River  R. 
Co..  7  Barb.  508;  Plant  v.  Long  Island 
R.  Co.,  10  Barb.  26;  Hentz  v.  Long  Isl> 
and  R.  Co.,  13  Barb.  646;  Lexington  &  O. 
R.  Co.  V.  Applegate,  8  Dana  (Ky.)  289; 
Fletcher?/.  Auburn  &  S.  R.  Co.,  25  Wend. 
464;  Chapman  v.  Albany  &  S.  R.  Co..  10 
Barb.  360;  Milhau  v.  Sharp.  15  Barb.  193. 
Follow  I  N(J  Presbyterian  Soc.  v.  Auburn  & 
R.  R.  Co.,  3  Hill  567.  Reconciling  Adams 
V.  Saratoga  &  W.  R.  Co.,  11  Barb.  414, — 
Quoted  in  Gray  v.  First  Div.  St.  P.  k  P. 
R.  Co.,  13  Minn.  315  (Gil.  289).  Reviewed 
IN  Fanning  v.  Osborne,  25  Am.  &  Eng.  R. 
Cas.  252,  102  N.  Y.  441. 

2AO.  Wlicro  street  In  occupied  by 
coiiHciit  ol'city  or  town.— (I)  Compensa- 
tion awarded.  — K  company  which  constructs 
its  road  in  a  public  street,  under  a  sufficient 
grant  from  the  legislature  or  municipality, 
is  nevertheless  liable  to  abutting  owners 
for  consccpiential  injuries  to  their  property 
from  such  construction,  under  a  constitu- 
tional provision  of  Arkansas  that  "  private 
property  shall  not  be  taken,  appropriated, 
or  damaged  for  public  use  without  just  com- 
pensation." Hot  springs  R.  Co.  v.  William- 
son, 46  Am.  &»  Eng.  R.  Cas.  59,  136  I/.  S. 
121,  10  Sup.  Ct.  Rep.  955.  Southern  Pac.  R. 
Co.  V.  Reed,  41  Cal.  256,  3  Am.  Ry.  Rep.  46. 
Denver  &*  R.  G.  R.  Co.  v.  Bourne,  32  Am. 
&•  Eng.  R.  Cas.  227, 11  Colo.  59,  16  Pac.  Rep. 
839.— Followed  in  Denver  &  R.  G.  R.  Co. 
V.  Schmitt,  1 1  Colo.  %6,  16  Pac.  Rep.  842.— 


Burlington  A*  M.  R,  R.  Co.  v.  Reinhackle,  14 
Am.  «S-  Et^.  R.  Cas.  169,  15  AV^.  279,  18  N. 
VV.  Rep.  69,  48  Am.  Rep.  342.— ytroTiNO 
Crawford  v.  Delaware.  7  Ohio  St.  459.— 
Applied  in  Atchison  &  N.  R.  Cn.v.  Bocrncr. 
34  Neb.  340.  Followed  in  Omaha  A  U. 
V.  R.  Co.  V.  Rogers.  20  Am.  &  Eng.  R.  Cas. 
79,  16  Neb.  wj.— Renting  \  New  York,!.. 
&*  W.  R.  Co.,  I  N.  Y.  S.  R.  733.  Rosent/inl 
V.  Taylor,  B.  &*  H.  R.  Co..  79  Tex.  325.  15 
S.  W.  Rep.  268.  Ford\.  Chicago  S-  JV.  W. 
R.  Co.,  14  ff-'/j.  609.— Approving  Williams 
v.  New  York  C.  R.  Co..  16  N.  Y.  97.  Quot- 
ing Springfield  v.  Connecticut  River  R. 
Co.,  4  Cush.  (Mass.)  Tx.—Pomeroy  v.  Mil- 
waukee &*  C.  R.  Co.,  16  Wis.  640. 

A  dummy  railroad  constructed  by  author- 
ity upon  a  public  road  or  street,  and  operated, 
by  means  of  a  steam  engine  and  conches,  for 
the  transportation  of  passengers  only,  con- 
stitutes an  additional  burden  upon  the  ulti- 
mate fee  in  the  road  or  street,  for  which  the 
owner  of  that  fee  is  entitled  to  compensation 
as  for  a  taking  of  his  property  for  public 
use.  East  End  St.  R.  Co.  v.  Doy/c.  88  Tenn. 
747.  9  L.  R.  A.  100.  13  S.   W.  Rep.  936. 

The  right  to  damages  for  injury  done  to 
property  adjacent  to  a  street  along  which  a 
railway  track  is  constructed,  when  the  city, 
having  authority,  has  granted  the  right 
of  way.  is  not  restricted  to  cases  where  the 
street  has  been  exclusively  appropriated  by 
the  road,  or  where  the  road  has  been  un- 
skilfully constructed.  Gulf,  C.  &*  S.  /".  R. 
Co.  V.  Eddins,  60  Tex.  656.— Reviewing 
Houston  &  T.  C.  R.  Co.  r.  Odum,  53  Tex. 
.153— Foi-iowED  in  Gulf.  C.  &  S.  F.  R.  Co. 
V.  Bock. 63 Tex.  245.  Reviewed  in  Gaines- 
ville. H.  &  W.  R.  Co.  V.  Hall,  44  Am.  &  Eng. 
R.  Cas.  51.  78  Tex.  169.— C//^,  C.  «S-  S.  F. 
R.  Co.  V.  Bock,  63  Tex.  345.— Following 
Gulf.  C.  &  S.  F.  R.  Co.  v.  Eddins,  60 
Tex.  656. 

(3)  Kansas  rule. — A  company  may.  under 
tlie  provisions  of  the  statute  and  under  the 
authority  of  the  city  ordinance,  construct 
and  operate  its  railroad  in  a  public  street  in 
a  legal  and  proper  manner,  making  such 
alterations  in  ihe  surface  of  the  street  as  are 
necessary  to  the  construction  and  operation 
of  its  road,  and  which  do  not  necessarily  im- 
pair the  usefulness  of  the  street,  without 
being  liable  to  abutting  lot  owners  or  others 
for  damages  i  b.ut  such  a  company  cannot, 
any  more  than  can  an  individual,  wrongfully 
and  unnecessarily  block  up  or  obstruct  a 
street  without  being  liable  therefor.  Ottawa, 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  2A1-tfA4.        651 


It,  r4 
i8  A'. 

TINO 

59- 
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h  \K. 
Cos. 
'k,  L. 
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25.  '5 
W. 
linnis 
uor- 
R. 
Mit- 


O,  C  &*  C.  G.  K.  Co.  V.  Larson.  36  Am,  &* 
E>n;.  R.  Cas.  163,  40  /Can.  301,  3  L.  A'.  A. 
59.  \^  Pac.  Ktp.  661.  — QUOTINU  Atchinon 
&  N.  R.  Co.  V.  Garside,  10  Kan.  552:  llcller 
V.  Atchiton.  T.  &  S.  F.  R.  Co.,  28  Kan. 
625.— Approvku  in  Central  nranrli  U.  P. 
R.  Co.  V.  Andrews,  41  Knn.  370,  21  Pac.  Rep. 
276.  FoLLoWKi)  IN  Ottawa,  O.  C.  &  C.  G. 
R.  Co.  V.  Peterson,  40  Kan.  310. 

To  entitle  an  abutting  lot  owner  to  re- 
cover damages  for  locating  a  railroad,  under 
the  authority  of  the  city  council,  in  a  street, 
there  must  be  a  practical  obstruction  of  the 
street  in  front  of  his  premises,  so  as  virtu- 
ally to  deprive  him  of  ingress  and  egress. 
Kanstis,  N,  6*  D.  A',  Co.  v.  Miihler,  4;  A'an, 
565,  26  Pac.  Htp.  22.— FoM.owiNO  Kansas, 
N.  &  D.  R.  Co.  V.  Cuykendall,  42  Kan.  234  ; 
Wichita  &  C.  R.  Co.  v.  Smith,  45  Kan.  264. 

No  license  or  consent  from  a  city  wilt 
eivmpt  a  company  from  liability  to  a  lot 
owner  for  placing  an  obstruction  across  an 
alley  which  practically  excludes  access  to 
the  lot  by  precluding  the  use  of  the  alley 
fur  the  ordinary  purposes  for  which  an  alley 
is  used.  Leavenworth.  N.  &»  S.  R,  Co.  v. 
Cur  tan,  56  Am.  6-  Eng.  A'.  Cas.  636.  51 
A'an.  432,  33  Pac.  Rtp.  297. 

251.  Wli«ro  onlliiiuico  requires 
pnyiiiont  of  dninntroH.  —A  company  con- 
structed its  track  along  a  public  street  in 
front  of  plaintifT's  lots  occupied  for  mer- 
cantile business,  under  an  ordinance  of  the 
town  granting  the  ri(;ht  so  to  do,  but  which 
required  the  company  to  pay  all  damages  to 
the  property  owners.  Held,  that  the  com- 
pany, by  accepting  the  ordinance  and  act- 
ing under  it,  became  bound  to  pay  plaintiff 
for  all  damage  to  his  property  or  business. 
.SV.  Louis,  V.  &*  T.  H.  R.  Co.  v.  Cap^s.  67 
///.  607.— Distinguishing  Moses  7/.  Pitts- 
burgh. Ft.  W.  &  C.  R.  Co..  21  III.  516;  Mur- 
phy 7A  Chicago,  29  111.  279.— Follow Ki)  in 
St.  Louis,  V.  &  T.  H.  R.  Co.  v.  Hallcr,  82 
III.  7.08. 

And  the  liability  extends  to  all  damages 
done  to  property  owners  during  the  time  of 
the  construction  of  the  road,  as  well  as  for 
such  as  were  caused  by  the  construction 
when  completed.  St.  Lout's,  T.  &*  T.  H.  R. 
Co.  V.  Cafips,  72  ///.  188. 

252.  Wlicro  railway  tiiiiiiclK  iiiidcr 
street.  —  A  railway  company  may  tunnel 
under  a  public  street  without  paying  com- 
pensation to  the  abutting  owner,  .'^ouc'i  v. 
East  Loudon  R.  Co.,  42  L.J.  Ch.  477,  L.  A', 
16  Eg.  108,  21   IV.  R.  S90. 


25:i.  KxcliiNlve  iiho  of  street  not 
nereNHnry  to  ffive  ri|rlit  to  eoiiiiMMinn- 
tioii.*  ~  It  is  not  necessary  that  a  railway 
along  a  street  should  exclusively  appro|)riate 
it,  in  order  to  entitle  an  adjacent  proprietor 
to  damages  for  its  construction.  Out/,  C. 
**  S.  /•:  R.  Co.  V.  Eddint,  60  Tex.  656.- 
Foi.LOWKi)  IN  Gulf.  C.  A  S.  F.  R.  Co.  v. 
Bock,  63  Tex.  24$.-Gu//.  C.  &*  S.  F.  R.  Co. 
V.  Bock.  63  7'e.r.  24J.  — Following  Gulf,  C. 
A  S.  F.  R.  Co.  V.  Ed«lins,  fio  Tex.  656. 

254.  Wlio  entitled  to  dninnffes, 
genernlly.t— The  right  to  use  and  enjoy 
the  street  is  an  appurtenance  to  a  lot  abut- 
ting thereon,  and  an  injury  to  the  appurte- 
nance is  an  injury  to  the  whole  property. 
Protsman  v.  Indianapolis  &*  C.  R.  Co.,  9 
Ind.  467. 

Where  the  bed  of  defendant's  railway  is 
partly  on  plaintiff's  land,  and  partly  on  the 
street  adjacent  to  the  land,  plaintiff  is  en> 
titled  to  be  compensated,  not  only  for  the 
appropriation  of  the  portion  of  his  land 
taken  for  the  right  of  way,  but  also  for  the 
injury  he  will  sustain  on  account  of  the  lay- 
ing down  of  the  track  in  the  street  on  which 
his  property  abuts,  under  Iowa  Code,  §  464. 
AtcClean  v.  Chicago,  I.  &*  D.  R.  Co.,  67  lo^va 

568,   25   A'.  IV.  Rep.  783.  —  DlSTINGUISHRI) 

IN  Cook  V.  Chicago,  M.  A  St.  P.  R.  Co.,  83 
Iowa  278. 

Under  Iowa  Code,  $  464.  city  streets  can- 
not be  occupied  longitudinally  by  railroads 
without  the  consent  of  the  city  and  com- 
pensation to  the  abutting  lot  owners ;  and 
where  a  railroad  it  laid  diagonally  across 
two  streets  at  their  intersection,  so  that  the 
street  in  front  of  plaintiff's  corner  tot  it 
occupied  thereby,  he  is  entitled  to  compen- 
sation. Enos  V.  Chicago,  St.  P.  &*  K.  C.  R, 
Co.,  39  Am.  6*  Eng.  R.  Cas.  72,  78  Iowa  28, 
42  A'.  IV.  Rep.  575. 

An  abutting  lot  owner  who  has  an  ease- 
ment in  an  alley,  which  is  destroyed  by  the 
appropriation  of  the  alley  for  railroad  pur- 
poses, is  entitled  to  recover  damages  only 
for  the  loss  of  his  special  right  to  pass  and 
repass  over  the  alley  ;  and  he  is  not  entitled 


♦As  to  when  injury  to  land  Iti  to  be  esiimnted 
in  condemnation  proceedings  where  a  road  is  to 
be  built  on  street  or  alley,  see  57  Am.  &  Eno. 
R.  Cas,  720,  akilr. 

\  Conveyance  of  strip  of  land  for  construe* 
tioii  of  railroad  in  street.  Abutter's  fight  to 
damajjes,  see  50  Am.  &  Enc.  R.  Cas.  a  16,  abslr. 

I.>ii  runniiiK  from  street  to  street,  see  50  Am. 
&  Kng.  R.  Cas.  226,  abilr. 


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STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  265-267. 


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to  recover  for  the  loss  of  any  general  bene* 
fits  which  he  is  entitled  to  receive  in  com- 
mon with  the  public  generally.  Centrat 
Branch  U.  P.  R.  Co.  v.  Andrews,  14  Am.  <S* 
En^.  Ji.  Cas.  248,  30  Kan.  590,  2  Pac.  Rep.  677. 
—Approved  in  Central  Branch  U.  P.  R. 
Co.  V.  Andrews,  41  Kan.  370. 

One  whose  land  in  a  street  in  fror.:  of  his 
lot  is  appropriated  by  a  company  and  occu 
pied  by  its  track  is  presumptively  'entitled 
to  damages  in  addition  to  what  -  -vould 
suffer  if  the  railway  stopped  at  the  line  of 
his  lot.  and  no  part  of  the  same  was  so 
appropriated.  Papooshek  v.  Winona  f'  > 
P.  R.  Co.,  44  Minn.  195,  46  N.  W.  Rej      ... 

Property  entitled  to  damages  by  rea^  o' 
the  exercise  of  the  right  of  eminent  domain 
must  be  either  that  which  is  actually  in- 
vaded, or  that  which  abuts  upon  a  highway 
that  is  invaded.  A  person  who  is  not  the 
owner  of  land  abutting  upon  a  street  which 
has  been  appropriated  by  a  railroad  has  no 
right  to  recover  damages  upon  the  ground 
that  the  r.treet  has  been  made  inconvenient 
and  dangerous  to  travelers  over  it.  Penn- 
sylvania Co.  v.  Pennsylvania  S.  V.  R.  Co., 
151  Pa.  St.  334,  25  Atl.  Rep.  107. 

255.  for   uoise,  dust,   smoke, 

and  cinders.'*'  —  A  party  residing  near  a 
track  may  recover  for  damage  caused  by 
throwing  smoke  and  cinders  from  passing 
trains  on  his  property.  Stone  v.  Fairbury, 
P.  &•  N.  W.  R.  Co.,  68  ///.  394. 

Whenever  without  his  consent,  and  with- 
out compensation  to  him,  such  a  railroad  is 
laid  and  operated  along  the  portion  of  the 
street  in  front  of  his  lot  so  as  to  cause,  upon 
that  part  of  the  street,  smoke,  dust,  cinders, 
etc.,  which  darken  and  pollute  the  air  com- 
ing upon  the  lot  from  that  part  of  the  street, 
the  lot  owner  may  recover  whatever  dam- 
ages to  his  lot  are  thus  caused  by  so  laying 
and  operating  the  railroad.  Adams  v.  Chi- 
cago, B.  &•  N.  R.  Co.,  36  Am.  &•  Eng.  R. 
Cas.  7,  39  Minn.  286,  39  N.  IV.  Rep.  629,  i 
L.  R.  A.  493,  38  Alb.  L.J.  388. 

A  lot  owner  whose  lot  does  not  approach 
nearer  to  the  line  of  a  railroad  than  from 
one  to  two  hundred  feet,  but  who  is  within 
reach  of  the  noise  and  dust  produced  by  the 
ordinary  operations  of  the  road,  may  not 
recover  damages  for  the  consequential  in- 
jury sustained  by  reason  of  such  noise  and 
dust.  Pennsylvania  Co.  v.  Pennsylvania  S. 
V.  R.  Co.,  151  Pa.  St.  334.  25  Atl.  Rep.  107. 

*  See  also />(7j/,  270. 


—Distinguishing  Monongahela  Nav.  Co. 
V.  Coons,  6  Watts  &  S.  (Pa.)  loi. 
256.  Bight  of  lessor  to  damages.— 

Trespass  on  the  case  will  lie  to  recover  dam- 
ages under  W.  Va.  Const,  art.  3,  §  9,  as 
compensation  for  permanent  injury  to  real 
estate  by  the  construction  of  a  railroad  upon 
a  street  adjacent  to  such  property,  and  the 
owner  may  count  for  permanent  damages 
and  recover  the  same  according  to  the  evi- 
dence, although,  when  the  injury  occurred, 
he  was  not  in  the  actual  occupancy  of  the 
property,  but  was  in  constructive  possession 
of  the  same  through  his  tenant  under  a 
lease.  Fox  v.  Baltimore  &*  O.  R.  Co.,  34  W. 
Va.  466,  12  S.  E.  Rep.  757.— EXPLAINING 
Gillison  v.  Charleston,  16  W.  Va.  282. 

257'  Who  not  entitled  to  dam- 
ages.* —  The  clause  of  the  Constitution 
which  provides  that  "  private  property  shall 
not  be  taken  or  damaged  for  public  use 
without  just  compensation  "  must  receive  a 
reasonable  and  practicable  interpretation. 
Where  the  property  is  not  taken,  the  dam- 
ages must  be  real,  and  not  speculative.  If 
the  property  is  not  worth  less  in  consequence 
of  tlie  construction  of  a  railroad  in  its  vicin- 
ity, or  upon  a  street  upon  which  the  lots 
abut,  than  if  no  road  were  constructed,  the 
owner  will  not  be  entitled  to  damages,  and 
cannot  enjoin  the  construction  of  the  road 
in  the  street  in  pursuance  of  the  company's 
charter  and  the  license  of  the  city  authori- 
ties. Chicago  &»  P.  R.  Co.  v.  Francis,  70 
///.  238.— Followed  in  Ebeihart  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.,  70  III.  347. 

Under  Iowa  Code,  §  464,  not  all  the 
owners  of  lots  abutting  upon  a  street  on 
which  a  railroad  is  laid  may  recover  dam- 
ages, but  only  those  owning  lots  abutting 
upon  ti)at  portion  of  the  street  which  is  so 
used ;  and  owners  of  lots  abutting  upon  a 
street  crossed  only  by  a  railroad  are,  conse- 
quently, not  entitled  to  damages  under  the 
statute.  Morgan  v.  Des  Moines  &•  St.  L. 
R.  Co. ,  20  Am.  &■»  Eng.  R.  Cas.  67,  64  Iowa 
589,  52  Am.  Rep.  462,  21  N.  W.  Rep.  96. 

If  persons  who  own  property  abutting 
upon  a  street  join,  either  in  writing  or  by 
parol,  with  the  owners  of  the  other  lots  abut- 
ting thereon  in  an  agreement  that  a  railroad 
track  may  be  laid  therein  and  operated,  and 
pursuant  to  that  agreement  the  track  is 
constructed,   the  owners  of  the   lots    and 

*  Abuttinf!;  owner's  right  to  compensation 
where  no  damages  are  proved,  see  50  Am.  & 
Eng.  R.  Cas.  227,  abstr. 


STREtTS  AND   HIGHWAYS   (RAILWAYS  IN),  268,  259. 


653 


their  subsequent  assignees  or  grantees  are 
estopped  from  claiming  damages  for  the 
construction  of  the  railroad  under  a  statute 
requiring  the  payment  of  compensation  to 
them.  Merchants'  Union  Barb-  Wire  Co, 
V.  Chicago,  R.  I.  <&*  P.  R.  Co  ,  43  Am.  &» 
Eng.  R.  Cas.  121,  79  louia  613,  44  A^,  IV. 
Rep.  900. 

The  crossing  of  the  track  of  one  railroad 
company  by  the  track  of  another  company, 
and  the  necessary  delay  to  the  trains  of  the 
existing  company,  is  not  a  taking  and  dain- 
agingof  private  property,  within  the  meaning 
of  Missouri  Constitution,  relating  lo  taking 
private  property  for  public  use.  Kansas 
City,  St.  J.  &•  C.  B.  R.  Co.  v.  St.  Joseph 
Terminal  R.  Co.,  97  Mo.  457,  3  L.  R.  A.  240, 
10  S.  W.  Rep.  826. 

Where  land  is  dedicated  for  a  public 
street,  and  the  legislature  authorizes  the 
construction  of  a  railroad  through  it,  any 
damage  to  individuals  by  reason  of  the  con- 
struction of  the  road  in  a  reasonable  and 
proper  manner  is  damnum  absque  injuria. 
Corey  v.  Buffalo,  C.  &>  N.  V.  R.  Co.,  23  Barb. 
(N.  V.)  482.— Applying  Gould  v.  Hudson 
River  R.  Co.,  6  N.  Y.  522.  Disapproving 
Fletcher  v.  Auburn  &  S.  R.  Co.,  25  Wend. 
(N.  Y.)  462.  Reconciling  Brown  v.  Ca- 
yuga &  S.  R.  Co.,  12  N.  Y.  486.  Reviewing 
Presbyterian  Soc.  v.  Auburn  &  R.  R.  Co.,  3 
Hill  (N.  Y.)  567.— Applied  in  Barnes  v. 
South  Side  R.  Co.,  2  Abb.  Pr.  N.  S.  415. 

One  whose  property  docs  not  abut  on  that 
part  of  a  street  taken  for  a  railroad  cannot 
claim  damages.  In  re  New  York  &*  H.  R. 
Co.,  y^  Hun  (IV.  V.)  338, 

In  the  lawful  vacation  of  a  street  and  the 
appropriation  of  the  ground  by  a  railroad, 
the  owners  of  the  abutting  property  will 
not,  in  the  absence  of  any  special  legislative 
provision  for  damages  in  such  cases,  be  sub- 
ject to  the  constitutional  condition  that 
compensation  shall  first  be  Made  for  prop- 
erty taken,  injured,  or  destroyed.  McGee's 
Appeal,  1 14  Pa.  St.  470,  8  Atl.  Rep.  237. 

The  mere  proximity  of  a  railroad  may 
render  dwelling  houses  less  desirable,  and 
diminish  their  market  value,  without  impos- 
ing any  liability  on  the  company  for  the 
loss  sustained  by  their  owners.  Jones  v. 
Erie&*  W.  V.  R.  Co.,  151  />«.  St.  30,  25  Atl. 
Rtp.  134. 

Where  a  company  is  authorized  by  its 
charter  to  build  into  a  city,  and  under  cer- 
tain  conditions  to  occupy  the  streets,  one 
whose  private  right  of  way  in  the  l(M)d  of 


another  is  thereby  obstructed  cannot  main- 
tain an  action  for  damages.  He  may  have 
compensation  if  his  case  falls  within  the 
provisions  made  for  compensation;  other- 
wise there  can  be  no  compulsory  remedy 
for  either  damages  or  compensation.  Mc- 
Lauchlin  v.  Charlotte  &*  S.  C.  R.  Co.,  5 
Rich.  (So.  Car.)  583. 

258.  Subsequent  grantee  not  en- 
titled.— Where  private  lots  in  a  city  are 
physically  damaged,  or  injured  in  value,  by 
the  construction  and  operation  of  a  railroad 
in  close  proximity  thereto  along  a  public 
street,  the  right  of  action,  if  any  exists,  is 
vested  in  the  owner  of  lots  immediately 
upon  the  construction  of  the  railroad,  to 
recover  for  all  damages,  past,  present,  and 
future ;  and  a  subsequent  grantee  of  the 
lots  cannot  maintain  an  action  at  all  for  the 
proper  use  and  operation  of  the  road,  after 
liis  purchase.  Chicago  &*  E.  I.  R.  Co.  v. 
Loeb,  27  Am.  &•  Eng.  R.  Cas.  415,  118  ///. 
203,  8  A',  E.  Rep.  460,— Distinguished  in 
Chicago,  B.  &  Q.  R.  Co.  v.  Schaffer,  34 
Am.  &  Eng.  R.  Cas.  174,  124  111.  112,  14 
West.  Rep.  139,  16  N.  E.  Rep.  239;  Lamm 
V.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  45 
Minn.  71  ;  Atlantic  &  D.  R.  Co.  v.  Peake, 
87  Va.  130. 

259.  Owner  on  opposite  side  of 
street.  —  The  owner  of  an  abutting  lot, 
whose  title  extends  to  the  middle  of  a  high- 
way forty  feet  wide,  cannot  maintain  an  ac- 
tion for  damages  for  an  unlawful  obstruction 
on  the  L  /posite  side,  caused  by  the  con- 
struction .hereon  by  a  railroad  company,  for 
a  roadbed,  of  an  embankment  eleven  feet 
in  width,  the  only  effect  of  which  is  to  ren- 
der access  to  his  property  more  difficult  and 
inconvenient,  and  to  force  the  travel  on  the 
highway  nearer  to  his  lot,  as  the  injury  is 
the  same  in  kind  as  that  suffered  by  the 
community  in  general,  differing  only  in  de- 
gree. Indiana,  B.  6f  W.  R.  Co.  v.  Eberle,  32 
Am.  &•  Eng.  R.  Cas.  220,  1 10  Ind,  542,  9 
West.  Rep.  206.  \i  N.  E.  Rep.  467. 

Where  the  owner  of  a  lot  is  entitled  to 
exercise  a  right  which  he  possesses  in  com- 
mon with  the  public,  and  the  exercise  of 
which  is  necessary  to  the  enjoyment  of  his 
property  in  the  usual  manner,  it  must  ap- 
pear, to  warrant  a  recovery,  that  the  ob- 
struction complained  of  presents  a  physical 
disturbance  of  such  right,  so  as  to  impair  its 
use  in  the  manner  previously  enjoyed,  and 
causes  peculiar  damage  to  the  property  to 
which  the  right  is  appendant.    Indiana,  B^ 


I 


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i 


654        STREETS  AND  HIGHWAYS   (RAILWAYS   IN),  260-262. 


&*  IV.  R.  Co.  V.  EberU,  32  Am.  &*  Eng.  R. 
Cos.  220,  no  Ind.  542,  9  West.  Rep.  206,  11 
N.  E.  Rep.  467. 

Although  the  sides  or  eaves  of  a  passing 
car  extend  a  few  inches  over  one  side  of  an 
alley,  and  a  few  inches  of  filling  may  be 
necessary  in  the  alley,  these  facts  do  not 
entitle  the  owner  of  a  lot  on  the  opposite 
side  of  the  alley  to  damages,  under  Wis. 
'  Laws  of  1889,  ch.  255.  Morris  v.  Wtscon- 
•  sin  Midland  R.  Co.,  82  IVis.  541,  52  A'.  IV. 
Rep.  758. 

i.  Assessment.    Evidence  on  Question 
of  Damages. 

200.  How  damages  should  be  as- 
sessed, generally.  —  Where  an  abutting 
lot  owner  owns  the  fee  to  one  half  of  the 
street,  and  sues  for  damages  for  the  taking 
of  the  street  for  a  railroad  track,  his  meas- 
ure of  damages  is  the  value  of  his  interest 
in  the  portion  of  the  street  taken  when  the 
company  entered ;  and  the  measure  of  dam- 
ages to  his  lot  is  the  difference  between  its 
value  at  the  time  the  railroad  entered  and 
its  value  when  it  was  completed ;  and  in  ar- 
riving at  the  value  of  the  lot  all  the  capabili- 
ties or  uses  to  which  it  is  adapted  should  be 
taken  into  consideration.  Muller  v.  South' 
ern  Pac.  Branch  R.  Co.,  83  Cal.  240,  23  Pac. 
Rep.  265. 
'  Where  a  company  has  a  general  discretion 
to  construct  and  operate  a  railroad  in  a  city, 
property  owners  whose  property  will  be 
damaged  thereby  will  be  entitled  to  have 
their  damages  estimated  with  reference  to 
any  use  to  which  the  petitioner,  under  its 
charter,  may  see  fit  to  apply  its  railroad 
when  built.  But  the  company,  having  such 
unKmited  power,  may,  by  stipulation,  duly 
authorized,  restrict  itself  as  to  the  purposes 
of  the  road,  the  character  of  its  machinery 
and  appliances,  and  the  fuel  to  be  used,  and 
such  stipulation  will  thereafter  be  binding 
on  the  company.  Lieberman  v.  Chicago  &* 
S.  S.  R.  T.  R.  Co.,  51  Am.  Sr'  Eng.  R.  Cas. 
581,  141  ///.  140,  30  N.  E.  Rep.  544. 

Pa.  Act  of  Feb.  19,  1849,  §  10,  provides 
that  "whenever  any  company  shall  locate 
its  road  in  and  upon  any  street  or  alley  in 
any  city  or  borough,  ample  compensation 
shall  be  made  to  the  owners  of  lots  fronting 
on  such  street  or  alley,  for  any  damages 
they  may  sustain  by  reason  of  any  excava- 
tion or  embankment  made  in  the  construc- 
tion of  lucb  road,  to  be  ascertained  as  other 


damages  are  authorized  to  be  ascertained 
by  this  act."  f/eid,  that  where  it  is  proven 
that  an  embankment  was  made  in  front  ot 
plaintiff's  property,  the  burden  is  upon  the 
company  to  show  that  there  was  an  estab- 
lished grade  of  the  street  to  which  it  con- 
formed. Pittsburg,  V.  &*  C.  R.  Co.  v.  Rose, 
74  Pa.  St.  362,  3  Am.  Ry.  Rep.  56,  6  Am, 
Ry.  Rep.  343.  —  Followed  in  Hays  v. 
Briggs.  74  Pa.  St.  373. 

In  such  case,  a  borough  plan  is  evidence 
to  show  where  the  line  of  a  street  is ;  but 
not  to  show  whether  plaintiff's  house  was 
over  the  line.  Pittsburg,  V.  &*  C.  R.  Co.  v. 
Rose,  74  Pa.  St.  362,  3  Am.  Ry.  Rep.  56,  6 
.  it)..  Ry.  Rep.  343. 

Where  an  abutting  lot  owner  sues  a  com- 
pany for  excavating  in  the  street  for  the 
purpose  of  laying  its  track,  and  asks  for 
both  damages  and  an  injunction,  the  past 
damages  caused  by  the  trespass  may  be 
assessed  by  the  court,  or  perhaps  the  judge 
may  impanel  a  jury  for  the  purpose;  but 
permanent  damages  which  accrue  from  the 
continued  use  of  the  street  can  only  be 
ascertained  in  the  manner  prescribed  by  the 
statute.  Fordv.  Chicago  &*  N.  W.  R.  Co., 
14  IVis.  609.  —  Following  Davis  v.  La 
Crosse  &  M.  R.  Co.,  12  Wis.  16 ;  Pettibone  v. 
La  Crosse  &  M.  R.  Co.,  14  Wis.  479. — Re- 
viewed IN  Uline  V.  New  York  C.  &  H.  R. 
R.  Co.,  23  Am.  &  Eng.  R.  Cas.  3,  101  N.  Y. 
98,  4  N.  E.  Rep.  536. 

201.  Assessment  by  arbitrators.— 
A  company  and  the  owner  of  a  lot  fronting 
on  a  street  submitted  to  arbitration,  under 
the  compensation  clause  of  the  company's 
charter,  the  question  of  how  much  damages, 
if  any,  the  lot  owner  had  received  by  the 
building  of  the  road  through  the  street. 
It  appeared  that  the  road  had  authority 
from  the  state  (before  the  Code)  to  run 
from  point  to  point  in  a  general  direction, 
which  might  be  thrbugh  the  town,  and 
authority  from  the  town  authorities  to  run 
through  said  street ;  and  that,  in  fact,  the 
road  had  not  used  the  street  either  for  its 
track  or  embankment.  Held:  (1)  that  the 
court  erred  in  holding  that  the  road  had 
no  authority  to  use  the  street ;  (2)  that  the 
court  erred  in  holding  that  the  road  was 
estopped  by  the  submission  from  showing 
that,  in  fact,  the  street  was  not  occupied. 
Atlantic  &•  G.  R.  Co,  v.  Mann,  43  Ga.  200. 

202.  Assessment  by  Jury  .—Under  a 
statute  which  authorizes  a  company  to  con- 
struct its  roadj  in  a  public  street,  but  not 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  263. 


655 


before  the  payment  of  all  damages  which 
will  be  occasioned  thereby  to  the  property 
of  any  person,  and  which  allows  either  the 
company  or  the  property  owner  to  com- 
mence proceedings  to  have  the  damages 
assessed,  the  company,  on  the  trial  of  an 
appeal  entered  by  it  from  the  assessment 
made  in  a  proceeding  commenced  by  it,  is 
entitled  to  open  and  conclude,  the  burden  of 
proof  being  upon  it  to  show  either  that  the 
property  in  question  was  not  damaged,  or  if 
it  was,  the  amount  which  would  compensate 
the  owner,  and  which  must  be  paid  or  ten- 
dered by  the  company  before  constructing 
its  road  in  the  street  on  the  terms  prescribed 
by  the  statute.  Streyer  v.  Georgia  Southern 
&*  F.  R.  Co.,  SI  Am.  &*  Eng.  R.  Cas.  638, 
90  Ga.  56,  i$S.E.  Rep.  637. 

In  a  suit  by  a  property  owner  to  recover 
damages  against  three  railroads  for  laying 
tracks  in  the  street,  near  his  dwelling, 
whereby  smoke,  dust,  and  cinders  were 
thrown  upon  his  house  and  *'  t,  and  other- 
wise creating  a  nuisance,  depreciating  the 
value  of  his  property,  where  plaintiiT,  on  the 
trial,  enters  a  noNe  prosequi  as  to  damages 
arising  from  certain  tracks  shown  to  belong 
to  one  of  the  companies  exclusively,  a  find- 
ing of  damages  for  the  depreciation  caused 
by  all  the  roads,  as  well  as  general  deprecia- 
tion of  real  estate  after  the  construction  of 
the  several  roads,  cannot  be  sustained,  and 
a  remittitur  of  $800  out  of  $2000  found  by 
the  jury  will  not  cure  the  error,  as  it  can- 
not be  known  how  much  the  jury  allowed 
for  damages  occasioned  by  the  tracks  to 
which  the  nolle  applied.  Chicago,  M.  &*  St. 
P.  R.  Co.  V.  Hall,  90  ///.  42. 

Under  Iowa  Code,  §  1345,  the  sheriff's 
jury  can  only  assess  damages  for  land  taken 
by  a  railroad,  and  not  damages  for  injury 
to  property  abutting  on  a  street  in  which 
the  railroad  is  laid.  Stough  v.  Chicago  &* 
N.  W.  R.  Co.,  30  Am.  &*  Eng.  R.  Cas.  396, 
71  Iowa  641,  33  N.  IV.  Rep.  149.— FOLLOW- 
ING Mulholland  v.  Des  Moines,  A.  &  W.  R. 
Co.,  60  Iowa  740;  Wilson  v.  Des  Moines,  O. 
&  S.  R.  Co.,  67  Iowa  509. 

In  an  action  to  recover  damages  caused 
by  the  construction  of  a  railway  on  a  public 
road  immediately  in  front  of  plaintiff's  resi- 
dence,  the  grado  being  between  eight  and 
nine  feet  in  height,  and  access  to  the 
property  obstructed,  and  the  value  thereof 
diminished,  the  evidence  showed  that  the 
property  was  thereby  greatly  diminished  in 
value,  and  that  the  jury  had  based  their 


verdict  on  the  lowest  estimate  of  the  wit- 
nesses. Held,  that  the  verdict  would  not  be 
set  aside.    Nebraska  &*  C.  R.  Co.  v.  Scott, 

31  Neb.  571.  48  N.  W.  Rep.  390. 

263.  Time  up  to  which  damages 
are  to  be  computed.— The  measure  of 
damages  for  a  railroad-crossing  in  a  street 
is  the  difference  in  the  value  of  the  abutting 
property  before  and  after  the  construction 
of  the  crossing.  Nicks  v.  Chicago,  St.  P.  6» 
K.  C.  R.  Co.,  84  Iowa  27,  50  A^.  " '  Rep.  22a. 

Where  a  company  obstructs .  alley  in  a 
city  by  a  track,  so  as  to  make  ii  useless  as 
an  alley,  an  abutting  lot  owner  has  the  right, 
if  he  chooses,  to  consider  the  obstruction  as 
a  permanent  taking  and  appropriation  of 
the  alley  by  the  company,  and  the  measure 
of  his  damages  will  be  the  injury  to  his  lot 
at  the  time  the  alley  was  taken  and  ap- 
propriated, and  not  at  the  time  of  the  trial. 
Central  Branch  U.  P.  R.  Co.  v.  Andt  *ws,  5 
Am.  &••  Eng.  R.  Cas.  370,  26  Ran.  702 ; 
further  appeal  14  Am.  &*  Eng.  R.  Cas.  248, 

30  Kan.  590,  2  Pac.  Rep.  677. 

If  a  company,  in  constructing  its  road  and 
surfacing  its  track,  makes  holes  or  other 
temporary  obstructions  in  a  street  or  high- 
way, an  abutting  lot  or  land  owner  may 
recover  all  special  damages  suffered  by  him 
prior  to  the  commencement  of  his  action  ; 
but  he  cannot,  on  account  of  such  defects 
or  obstructions  in  the  street  or  highway, 
recover  for  a  supposed  depreciation  in  value 
of  his  property,  upon  the  ground  of  a  per- 
manent appropriation  for  the  right  of  way. 
Chicago,  K.  &*  fV.  R.  Co.  v.  C/nion  Inv.  Co., 
56  Am.  &»  Eng.  R.  Cas.  679,  51  Kan.  600,  33 
Pac.  Rep.  378. 

The  measure  of  damages  for  obstructing 
a  street  is  not  the  diminution  in  value  of 
the  abutting  property  by  the  wrongful  ob- 
struction, the  injury  not  being  to  the  free- 
hold nor  permanent  in  its  nature,  but  should 
be  confined  to  compensation  for  the  injury 
occasioned  by  the  unlawful  obstruction  up 
to  the  time  of  the  commencement  of  the 
suit.  Brakken  v.  Minneapolis  &*  St.  L.  R. 
Co.,  7  Am.  &»  Eng.  R.  Cas.  593,  29  Minn. 
41,  II  N.  IV.  Rep.  124.— Approved  in 
Carli  V.  Union  Depot.  St.   R.  &  T.  Co., 

32  Minn.  loi.  Distinguished  in  Bald- 
win V.  Chicago,  M.  &  St.  P.  R.  Co.,  27  Am. 
&  Eng.  R.  Cas.  403,  35  Minn.  354 ;  Byrne  v. 
Minneapolis  &  St.  L.  R.  Co.,  38  Minn. 
213,  36  N.  W.  Rep.  339.  Followed  in 
Brakken  v.  Minneapolis  A  St.  L.  R.  Co., 

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STREETS  AND  HIGHWAYS   (RAILWAYS   IN),  264-266. 


264.  Evidence  on  question  of  dam- 
ageSf  generally.* — Evidence  as  to  what 
the  value  of  a  lot  not  taken,  but  abutting 
on  land  that  was  taken,  would  have  been 
had  the  railroad  been  built  upon  another 
street  is  not  admissible  to  show  the  damage 
to  the  lot,  since  the  damage  to  be  allowed 
is  not  a  failure  to  realize  a  profit  which, 
under  another  state  of  matters,  might  have 
been  realized,  but  the  loss  actually  suffered, 
and  it  is  error  to  refuse  to  inst-uct  the  jury 
that  such  supposed  value  cannot  be  consid- 
ered. Mulltr  v.  Southern  Pac.  Branch  R, 
Co.,  83  Cal.  240,  23  Pac.  Rep.  265. 

As  there  can  be  but  one  recovery  for  de- 
preciation in  the  value  of  real  estate  caused 
by  the  construction  and  operation  of  a 
railroad,  a  plaintiff  should  be  allowed  to 
prove  the  special  disadvantages,  such  as 
annoyances  and  inconveniences  interfering 
with  and  abridging  t'<ie  full  enjoyment  of 
his  property.  Chicago,  P.  &*  St.  L.  R,  Co. 
v.  Leah,  41  ///.  App.  584.  —  Following 
Lake    Erie   &    W.   R.  Co.   v.  Scott,  132 

111.  436- 

Where  an  abutting  owner  sues  for  dam- 
ages on  account  of  a  railroad  built  in  the 
street,  witnesses  who  have  given  their  opin- 
ion as  to  the  depreciation  of  the  value  of  the 
property  caused  by  the  road  are  properly 
allowed  to  state  that  the  road  was  built  aiid 
maintained  with  the  top  of  the  rails  from 
eight  to  twelve  inches  above  the  surface  of 
the  street.  Such  statement  is  competent  as 
showing  one  of  the  facts  upon  which  the 
witnesses  based  their  opinion.  Eslich  v. 
MdJison  City  <S-  Ft,  D.  R.  Co.,  75  Iowa  443, 
39  N.  IV.  Rep.  700. 

An  abutting  owner  who  sues  for  dam- 
ages resulting  from  the  operation  of  a  rail- 
road in  the  public  street  is  entitled  to  show 
such  damages  as  would  properly  have  been 
open  to  considwation  by  a  jury  of  inquest 
empaneled  to  assess  compensation,  upon 
the  condemnation  of  the  street  for  that 
purpose.  Grand  Rapids  &*  I.  R.  Co.  v. 
ffeisel,  10  Am.  5-  Eng.  R.  Cas.  260,  47  Mich. 
393,  II  N.  IV.  Rep.  212. 

In  an  action  under  W.  Va.  Const,  art.  3, 
S  9,  the  owner  may  recover  damages  nec- 
essarily resulting  from  the  ^.rdinary  and 
proper  use  by  a  company  of  its  track  in 
a  street,  and  may  give  evidence  developing 
the  character  of  this  ordinary  and  proper 
use  and  how  it  affects  the  value  of  his 

•  See  also  ante,  242,  248. 


property.  Fox  v.  Baltimore  &>  O.  R.  Co., 
34  W.  Va.  466,  12  .S".  £".  Rep.  757. 

265.  Evidence  of  depreciation  in 
value  fur  previous  uses.*— It  is  com- 
petent to  show  that  prc-^iises  which  had 
previously  been  used  as  a  residence  and 
shoe  shop  were  specifically  diminished  in 
value  by  a  railroad  cut.  Selma  &*  M.  R. 
Co.  V.  Knapp,  42  Ala.  480. 

In  an  action  for  damages  for  the  deprecia- 
tion in  value  of  property,  occasioned  by  the 
construction  and  operation  of  a  railway  in 
the  street  on  which  the  property  abuts, 
where  there  is  a  conflict  in  the  evidence  as 
to  the  amount  of  depreciation  of  *'ie  prop- 
erty, part  of  the  witnesses  pip  jg  it  as 
greater  than  that  found  by  the  jury,  and  the 
jury  having  viewed  the  premises,  the  ver- 
dict will  not  be  set  aside  as  excessive.  Den- 
ver &*  A,  G.  R.  Co.  V.  Bourne,  32  Am.  &* 
Eng.  R.  Cas.  227,  1 1  Colo.  59,  16  Pac.  Rep. 

839- 

266.  Showing  rental  value  before 
and  atter  construction  of  road.f  — 

On  the  trial  of  an  action  for  damages  for 
the  depreciation  of  plaintiff's  abutting 
property,  occasioned  by  the  construction 
and  operation  of  a  railway  in  the  streets, 
plaintiff  and  others,  against  the  objection  of 
defendant,  testified  as  to  tlie  decrease  in 
the  rents  and  rental  value  of  the  property 
by  reason  of  the  construction  of  the  rail- 
road, but  that  they  did  not  know  its  market 
value  before  or  since  the  building  of  the 
railroad.  Held,  that  this  evidence,  having 
been  properly  qualified  by  the  instructions 
given,  was  admissible  to  aid  in  determining 
the  actual  depreciation  of  the  realty  and 
improvements  in  market  value.  Denver  &» 
R.  G.  R.  Co.  v.  Bourne,  32  Am.  &•  Eng.  R. 
Cas.  227,  II  Colo.  59,  16  Pac.  Rep.  839. — 
Following  Denver  v.  Bayer,  7  Colo.  1 13, 
2  Pac.  Rep.  6. 

An  abutting  property  owner  is  entitled  to 
recover  as  damages  whatever  diminution  in 
value  his  real  estate  may  have  undergone  in 
consequence  of  laying  the  tnick ;  and  to 
show  this,  testimony  should  be  introduced 
as  to  the  market  value  of  the  property 
before  and  since  the  injury.  On  this  head 
proof  of  the  rental  value  before  and  since 
the  construction  of  the  road  would  furnish 
some  criterion  by  which  to  determine  the 
extent  of  the  injury  caused  to  the  property 

*  See  also  ^M/,  274. 
t  See  iiMopost,  290. 


STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  207-270.         657 


by  such  construction.  S/.  Louis,  V.  &*  T, 
H.  JR.  Co.  V.  Capps,  67  ///.  607. 

The  recovery  of  damages  for  injury  to 
property  fronting  on  a  street  over  wiiich  a 
railroad  passes  is  confined  to  the  direct 
physical  injury  to  the  property  by  the 
op<>  ation  of  the  road ;  and  it  is  erroneous 
to  permit  plaintiff  to  prove  what  the  value 
of  the  property  and  its  rental  value  is  with 
the  railroad,  and  what  it  would  be  without 
the  railroad.  Chicago,  B.  6^  Q.  R.  Co.  v. 
McGinnis,  79  ///.  269,  9  Am.Ry.  Kep.  334.— 
Followed  in  Chicago  &  E.  I.  R.  Co.  v. 
Hall,  8  III.  App.  621. 

In  estimating  the  permanent  damage,  the 
jury  may  inquire  into  the  value  of  the  prop- 
erty, and,  as  a  guide  or  assistance  in  so 
doing,  it  is  not  improper  to  hear  evidence 
of  its  rental  value,  or  of  an  ofter  to  pur- 
chase which  plaintiff  had  refused.  Fox  v, 
Baltimore  &>  O.  R.  Co.,  34  W.  Va.  466,  12 
S.  E.  Rep.  757. 

207.  Sliowiiier  loss  of  rental  value 
of  property  similarly  situated.  — In 
an  action  for  injury  to  a  house  and  lot  in  a 
town,  by  the  construction  of  a  railroad  cut 
in  the  street  opposite,  it  is  competent  to 
show  that  the  value  of  the  rent  of  the  prop- 
erty was  thereby  diminished  ;  but  not  that 
the  rent  of  other  property,  similarly  situ- 
ated but  belonging  to  third  persons,  was 
diminished  by  the  same  cause.  Selma  &* 
M.  R.  Co.  V.  Knapp,  42  Ala.  480. 

In  such  case  it  is  competent  to  show  that 
the  premises,  which  had  previously  been  used 
as  a  residence  and  shoe  shop,  were  specifi- 
cally diminished  in  value  by  the  railroad  ''•it. 
Selma  &>  M.  R.  Co.  v.  Knapp,  42  Ala.  480. 

208.  Showing  decline  of  plaintiff's 
business.  — In  a  suit  to  recover  damages 
sustained  by  plaintifl  in  his  business  as  a 
merchant,  in  consequence  of  the  construc- 
tion of  a  track  in  front  of  his  premises,  and 
the  making  of  a  deep  excavation  in  the 
street,  plaintiff  proved  the  extent  of  his 
business  in  the  preceding  year  and  the  de- 
crease in  the  year  after.  The  company  then 
offered  to  prove  the  fact  of  a  general  decline 
in  the  business  in  v;hich  plaintifl  was  en- 
gaged, which  the  court  refused.  Held,  that 
the  court  erred,  as  the  testimony  offered 
would  have  tended  to  show  that  plaintiff's 
business  was  affected  in  some  degree  by  the 
decline,  in  common  with  others  and  without 
regard  to  the  construction  of  the  road.  St. 
Louis,  V.  &•  T.  H.  R.  Co.  v.  Capps,  67 
///.  607. 

7  D.  R.  D.— 42 


In  determining  the  dam:ige  for  an  ob- 
struction of  a  highway  leading  to  plaintiff's 
property,  the  effect  upon  the  use  and  enjoy- 
ment of  plaintiff's  property  and  upon  the 
extent  of  his  business  may  properly  be 
considered.  Park  v.  Chicago  &*  S.  W.  R. 
Co.,  43  /owa  636,  14  Am.  Ry.  Rep.  489. 

Plaintiffs  were  engaged,  at  a  warehouse 
owned  by  them  on  the  line  of  defendant's 
railway,  in  buying  wheat  to  be  manufactured 
into  flour  at  their  mill  to  which  the  wheat 
was  shipped,  and  in  selling  the  products  of 
the  mill  at  the  same  warehouse  ;  and  while 
so  engaged,  and  for  a  considerable  time, 
their  business  was  interrupted  and  interfered 
with  by  the  obstruction  of  a  street  leading  to 
the  warehouse  by  the  unlawful  occupation 
thereof  with  defendant's  cars  and  trains. 
Held,  that  in  estimating  plaintiffs' damages, 
evidence  of  the  diminution  of  the  profits  of 
their  business,  including  the  manufacture  of 
flour,  was  incompetent,  as  embnicing  too 
many  elements  of  uncertainty  to  form  a  basis 
for  estimating  damages.  Todd  v.  Minne- 
apolis &*  St.  L.  R.  Co.,  36  Am.  &*  Eng.  R. 
Cas.  191,  39  Minn.  186,  39  N.  W.  Rep.  318. 

200.  Proof  of  probable  and  rea- 
sonable profits.— Plaintiff  is  entitled  to 
damages  for  interruption  to  his  business 
during  such  time  as  would  necessarily  have 
been  employed  in  accommodating  him- 
self to  another  place  of  business,  equally 
eligible,  and  his  removal  thereto.  During 
such  time,  the  damages  to  his  business 
should  be  ascertained  by  proof  of  the  prob- 
able and  reasonable  profits  which  might 
have  been  made  upon  sales  had  there  been 
no  interruption.  The  necessary  reasonable 
expense  of  removal  is  also  a  proper  element 
of  damages.  St.  Louis,  V.  &*  T.  H.  R.  Co. 
v.  Capps,  67  ///.  607. 

270.  Evidence  of  damage  from 
smoke,  noiso,  dust,  sparks,  etc.*  — 
In  a  suic  against  a  company,  upon  an  ordi- 
nance whereby  it  is  bound  to  pay  all  dam- 
ages to  property  owners  caused  by  the 
construction  of  its  road,  where  there  have 
been  no  sales  of  property  of  a  character 
similar  to  that  claimed  to  be  injured,  either 
before  or  after  the  construction  of  the  road, 
from  which  the  depreciation  in  value  can  be 
ascertained,  it  is  proper  to  resort  to  evi- 
dence of  the  noise  and  jarring  of  the  earth, 
and  smoke  and  dust  caused  oy  passing  trains, 
rendering  the  house,  if  a  dwelling,  uncom- 

*See  also  ante,  255. 


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STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  271, 272. 


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fortable  and  injuring  the  furniture  and 
walls  of  the  house,  as  an  aid  to  the  jury 
in  estimating  the  depreciation  in  value  of 
the  property.  St.  Louis,  V.  &*  T.  H.  R.  Co. 
V.  HalUr,  82  ///.  208. 

In  an  action  by  the  owner  of  property 
abutting  on  a  street  which  is  occupied  by 
a  railroad  track  under  an  agreement  with 
the  municipal  authorities,  by  virtue  of  Ohio 
Rev.  St.  §  3283,  to  recover  against  the  com- 
pany for  injury  to  such  property  by  the  lay- 
ing of  the  track,  it  is  competent  to  take 
into  consideration  evidence  of  substantial 
injury  and  loss  to  the  property  (not  common 
to  the  community  at  large)  caused  by 
smoke,  noise,  and  sparks  of  fire,  occasioned 
by  running  locomotives  and  cars  in  front 
of  the  property.  Columbus,  H.  V,  &•  T.  R. 
Co.  V.  Gardner,  32  Am.  &*  Eng.  R.  Cas.  243, 
30  Am.&*  Eng.  R.  Cas.  409,  45  Ohio  St.  309, 
1 1  West.  Rep.  264,  i^N.E.  Rep.  69.— Apply- 
ing Hatch  V.  Cincinnati  &  I.  R.  Co.,  18 
Ohio  St.  92.  Not  following  Parrot  v.  Cin- 
cinati,  H.  &  D.  R.  Co.,  10  Ohio  St.  624. 
Quoting  Adden  v.  White  Mts.  (N.  H.)  R. 
Co.,  55  N.  H.  413;  Elizabethtown,  L.  &  B. 
S.  R.  Co.  V.  Combs,  10  Bash  (Ky.)  382; 
Grand  Rapids  &  I.  R.  Co.  v.  Heisel,  38 
Mich.  62;  Ham  V.Wisconsin,!.  &  N.  R. 
Co.,  61  Iowa  716;  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Eddins,  60  Tex.  656;  Lalir  v.  Metropolitan 
El.  R.  Co.,  104  N.  Y.  268. 

27  !•  Evidence  iu  niitit;ntiou  of 
dainagCH.  —  Where  plaintiff  claims  dam- 
ages on  account  of  injuries  to  his  property 
by  excavations  made  in  the  streets  by 
defendant  company,  the  fact  that  the  dam- 
age was  repaired  by  the  city  within  a  month 
after  the  work  was  done  is  admissible  as 
evidence  for  defendant  in  mitigation  of 
damages.  Alabama  Midland  R.  Co.  v. 
Coskry,  92  Ala.  254,  9  So.  Rep.  202. 

On  the  assessment  of  damages  of  lots 
abutting  upon  a  street  sought  to  be  taken 
for  a  side  track,  the  owner  gave  evidence 
that  the  proposed  location  would  render  his 
lots  useless  for  business  purposes.  Held, 
that  it  was  competent  for  the  company  to 
show  that  the  property  could  be  beneficially 
used  for  warehouse  purposes,  or  for  any 
other  purpose.  Mix  v.  Lafayette,  B.  &*  M. 
R.  Co.,  67  ///.  319. 

The  owner  of  property  abutting  011  an 
alley  which  is  unlawfully  obstructed  by  a 
railroad  is  not  required  to  enter  upon  the 
alley  for  the  purpose  of  changing  the  track 
or  repairing  the  alley,  and  thus  to  lessen  the 


injury  and  reduce  the  damages  to  which  he 
is  entitled  by  reason  of  such  obstruction. 
Central  Branch  U.  P.  R.  Co.  v.  Andrews,  41 
Kan.  370,  21  Pac.  Rep.  276.— APPROVING 
Atchison  &  N.  R.  Co.  v.  Garside,  10  Kan. 
552;  Heller  v.  Atchison,  T.  &  S.  F.  R.  Co., 
28  Kan.  630 ;  Central  Branch  U.  P.  R.  Co.  v. 
Andrews,  30  Kan.  590 ;  Ottawa,  O.  C.  &  C. 
G.  R.  Co.  V.  Larson,  40  Kan.  301. 

Where  an  abutting  lot  owner  sues  to  re- 
cover damages  caused  by  the  construction 
and  use  of  a  railroad  in  a  public  highway, 
the  company  may  show  in  mitigation  of 
damages  that  certain  work  done  by  it  in 
grading  the  highway  enhanced  the  value  of 
plaintiff's  property.  Porter  v.  North  Mo. 
R.  Co.,  33  Mo.  128. 

Where  an  abutting  lot  owner  sues  to  re- 
cover damages  for  obstructing  a  street,  the 
rights  of  the  parties  are  fixed  at  the  time 
when  suit  is  brought.  Therefore  it  is  error 
to  allow  the  company  to  prove,  for  the  pur- 
pose of  mitigating  the  damages,  that  plain- 
tiff has  sold  a  part  of  his  lots  since  the  suit 
was  brought.  Van  Brunt  v.  Ahearn,  23 
Hun  (N.  V.)  288. 

c.  Elements  and  Measure  of  Damages. 
Benefits. 

272.   Measure  of  damages,  grcner- 

ally.*— Where  a  company  owns  all  the  land 
on  one  side  of  an  alley,  and  seeks  to  con- 
demn the  land  on  the  opposite  side,  the 
owners  of  such  land,  in  estimating  the  value 
of  the  lot,  have  a  right  to  claim  compensa- 
tion for  the  easement  in  the  alley  and  the'^ 
right  to  a  half  interest  therein  when  it  ceases 
to  be  used  as  such.  Cincinnati  &*  G.  R.  Co. 
V.  Mims,  71  Ga.  240. 

The  right  to  recover  damages  for  an  in- 
jury to  private  property  occasioned  by  the 
occupancy  of  a  public  street  by  a  railroad, 
or  the  taking  of  other  property  for  public 
use,  is  secured  to  the  property  owner  by  111. 
Const,  of  1870,  art.  2,  §  13,  and  a  company 
will  be  liable  to  such  abutting  owner  tor  all 
direct  physical  damages  accruing  from  the 
construction  and  operation  of  such  rail- 
road. The  action  for  damages  to  property 
not  taken  may  be  regarded  as  in  the  nature 
of  one  kind  of  condemnation   proceeding, 

*  Measure  of  damages  to  abutting  owners 
caused  by  construction  and  operation  of  rail- 
roads. Recovery  of  prospective  damages.  Multi- 
plicity uf  suits,  see  notes,  53  Am.  Rep.  133  ;  15 
L.  R.  A.  4I3- 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  273,  274.        659 


and  in  all  cases  where  no  land  is  talcen  there 
should  be  but  one  proceeding  for  tlie  recov- 
ery of  damages,  in  which  the  recovery 
should  include  the  entire  damages,  past, 
present,  and  future.  Penn  Mut.  L,  Ins.  Co. 
V.  Htiss,  141  ///.  35,  31  A^.  E.  Rep.  138. 

Where  a  railroad  is  built  and  operated 
through  the  streets  of  a  municipality,  under 
an  ordinance  granting  permission,  the 
owner  of  abutting  lands  is  not  entitled  to 
recover  all  the  damages  sustained  by  him 
by  the  location  and  operation  of  the  road, 
including  the  loss  in  the  market  value  of  his 
property  which  is  common  to  other  owners 
or  the  public.  He  is  limited  to  such  dam- 
ages as  are  peculiar  to  his  property  and 
which  are  of  a  physical  nature,  such  as  cut- 
ting of!  access  to  his  premises,  jarring  his 
buildings,  or  casting  smoke  and  cinders 
thereon.  Chicago  &*  IV.  I.  R.  Co,  v.  Btrg, 
10  ///.  App.  607.— Quoting  Chicago,  M.  & 
St.  P.  R.  Co.  V.  Hall,  90  III.  42. 

A  judgment  for  damages  for  injuries  to 
property  abutting  upon  a  street,  arising  from 
the  construction  of  a  railroad  therein,  in- 
cludes all  damages  resulting  to  property 
owners  from  the  legitimate  and  necessary 
use  of  the  same  for  railroad  purposes,  in- 
cluding the  right  to  lay,  at  a  future  date, 
necessary  additional  tracks  or  side  tracks. 
IVhite  v.  Chicago,  St.  L.  &•  P.  R.  Co.,  43 
Am.  6*  Eng.  R.  Cas.  156,  122  Ind.  317,  23 
N.  E.  Rep.  782,  7  L.  R.  A.  257. 

It  seems  that,  in  proceedings  by  a  corpo- 
ration to  acquire  a  right  to  lay  its  tracks  in 
a  street  or  highway  the  fee  of  which  is  in 
the  owner  of  the  adjoining  land,  the  proper 
compensation  is  the  full  value  of  the  land 
taken  and  a  fair  and  adequate  compensa- 
tion for  all  the  injury  the  owner  has  sus- 
tained and  will  sustain  by  the  railroad ;  and 
for  this  purpose  it  is  proper  to  ascertain  and 
determine  what  effect  the  conversion  of  the 
street  into  a  railroad  track  will  have  upon 
the  residue  o'^  the  owner's  land.  Henderson 
v.  New  York  C.  R.  Co.,  78  N.,  V.  423 ;  aj^rm- 
ing  17  H  n  .•»44.  —  Distinguished  in  Re 
New  York,  L.  &  W.  R.  Co.,  27  Hun  151  ; 
Third  Ave.  R.  Co.  v.  New  York  El.  R.  Co., 
19  Abb.  N.  Cas.  (N.  Y.)  261.  Followed 
in  McGean  v.  Metropolitan  El.  R.  Co.,  133 
N.  Y.  9;  In  re  New  York  C.  R.  Co.,  11 
N.  Y.  S.  R.  866,  46  Hun  679.  Reconciled 
IN  Uline  V.  New  York  C.  &  H.  R.  R.  Co., 
23  Am.  &  Eng.  R.  Cas.  3,  loi  N.  Y.  98,  4 
N.  E.  Rep.  536.  Referred  to  in  Glover  v. 
Manhattan  R.  Co.,  19  J.  &  S.  (N.  Y.)  i,  66 


H  ow.  Pr.  77.— In  re  New  York  C.  R.  Co. 
i\  N.Y.  S.  R.  866, 46  Hun  679,  mem.— ¥01.' 
lowing  Henderson  v.  New  York  C.  R.  Co., 
78  N.  Y.  423. 

N.  Y.  Act  of  1881.  ch.  258,  authorized 
defendant  company  to  carry  its  tracks  upon 
a  bridge  over  a  certain  street  in  the  city  of 
Albany,  and  to  lower  tl.e  grade  of  the  street 
so  as  to  pass  under  the  bridge.  The  ex- 
penses of  the  improvement  were  to  be  borne 
by  the  railroad  company  and  the  city,  it  be- 
ing provided  that  the  city  should  "  pay  any 
compensation  which  the  owners  or  occu- 
pants of  adjoining  property  may  be  entitled 
to,  or  damages  which  they  may  sufler  by 
reason  or  on  account  of  such  changes  of 
grade  or  improvement."  Held,  that  the 
company  was  only  liable  to  pay  for  land 
taken.  In  re  New  York  C.  R.  Co.,  11  N.  Y. 
S.  R.  866,  46  Hun  679,  mem. 

The  lowering  of  the  grade  of  a  highway  so 
as  to  adjust  it  to  the  grade  of  a  railroad 
track  laid  across  the  highway  is  a  taking  of 
property  for  which  compensation  must  be 
made;  and  the  company  is  liable  to  an 
abutting  lot  owner  who  is  injured,  though 
the  track  does  not  encroach  upon  that  por- 
tion of  the  highway  owned  by  such  lot 
owner.  Buchner  v.  Chicago,  M.  6*  N,  W, 
R.  Co.,  14  Am.  6*  Eng.  R.  Cas.  447,  60  H^t's. 
264.  19  A'.  IV.  Rep.  56. 

273.  Value  of  land  permanently 
taken.— Where  a  company  seeks  to  appro- 
priate the  whole  of  a  lot  for  right-of-way 
purposes,  it  is  not  error  for  the  court  to 
instruct  the  jury  that  the  measure  of  the 
owners'  damages  is  the  market  value  of  the 
lot  at  the  time  it  was  taken — there  being  no 
evidence  that  the  company's  easement  is 
not  perpetual,  nor  that  the  fee  remaining  in 
the  owners  is  of  any  value  to  them  by 
reason  of  anything  upon  or  under  the  sur- 
face of  the  lot  which  they  could  enjoy  or 
remove  without  interfering  with  the  com- 
pany's easement.  Hollingsworth  v.  Des 
Moines  &*  St.  L.  R.  Co.,  17  Am.  &*  Eng.  R. 
Cas.  1 13,  63  Iowa  443,  19  N.  tV.  Rep.  325.— 
Followed  in  Clayton  v.  Chicago,  I.  &  D. 
R.  Co.,  67  Iowa  238. 

274.  Depreciation  in  value  of 
property.*  —  Under  a  provision  of  Cali- 
fornia Constitution  that  private  property 

*  See  also  ante,  205. 

Construction  of  railroads  in  streets.  Right  of 
abutting  owner  to  recover  damages  for  depre- 
ciation in  value  of  property,  see  56  Am.  &  Eno. 
R.  Cas.  68a,  aMr. 


Mi 


660 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  274. 


■ilW'T'l^i 


shall  not  be  "  taken  or  damaged  "  for  public 
use  without  compensation,  any  lot  owner, 
the  value  of  whose  lot  is  diminished  by  the 
laying  of  a  railroad  track  and  the  running 
of  trains  in  the  street,  may  have  an  action 
for  damages.  FrankU  v.  Jackson,  30  Fed. 
Rip.  398. 

The  damage  to  contiguous  property  re- 
sulting from  the  construction  of  a  railroad 
in  a  street  which  Ga.  Act  of  December  17, 
1888,  contemplates,  is  such  damage  as  must 
be  compensated  for  by  reason  of  that  pro- 
vision of  the  Constitution  which  declares 
that  "  private  property  shall  not  be  taken  or 
damaged  for  public  purposes  without  just 
and  adequate  compensation  being  first 
paid."  The  ultimate  and  only  measure  of 
such  damage  is  the  diminished  market  v.ilue 
of  the  property.  Market  value  for  this  or 
that  particular  use,  and  change  in  the  same 
by  reason  of  locating  the  railroad  in  the 
street,  are  irrelevant  save  as  evidence  tend- 
ing to  show  general  market  value,  that  is, 
value  in  the  open  market  without  respect  to 
any  particular  use.  Diminished  rental  value 
for  any  purpose  is  no  basis  for  compensa- 
tion except  as  to  its  result,  if  any,  on  the 
general  value.  Streyer  v.  Georgia  Southern 
&*  F.  R.  Co.,  51  Atn.  6-  Eng.  R.  Cas.  638, 
90  Ga.  56,  15  5.  £".  Rep.  637. 

In  determining  the  damages  and  assess- 
ing the  amount,  the  physical  property  (land 
and  buildings)  and  the  easement  of  access 
thereto  from  the  street  are  not  to  be  con- 
sidered as  having  separate  values,  as  if  they 
were  two  different  parcels  of  property,  but 
are  to  be  treated  as  parts  of  one  and  the 
same  estate.  Whether  damage  has  been  or 
will  be  done  by  the  construction  and  use  of 
the  railroad  depends  upon  whether  the 
market  value  of  the  whole  estate  as  one 
object  of  ownership  has  been  or  will  be 
diminished  thereby.  Streyer  v.  Georgia 
Southern  &>  F.  R.  Co.,  51  Am.  &•  Eng.  R. 
Cas.  638,  90  Ga.  56,  15  5.  jE".  Rep.  637. 

In  an  action  to  recover  damages  to  a 
house  and  lot  by  the  construction  and  oper- 
ation of  tracks  in  a  street  in  close  proximity 
to  the  property,  the  true  measure  of  dam- 
ages is  the  loss  sustained  by  the  nuisance, 
the  injury  from  jarring  the  building,  and  the 
throwing  of  cinders  and  smoke  upon  the 
premises,  and  the  depreciation  of  value  by 
these  causes  may  be  considered,  but  not 
general  depreciation  in  value  from  other 
causes,  such  as  mere  inconvenience  in  ap- 
proaching or  leaving  the  property,  or  the 


noise  and  confusion  in  the  vicinity.  Chi' 
cago,  M.  &»  St.  P.  R.  Co.  v.  Hali,  90  ///.  4a. 
—Followed  in  Chicago  &  E.  I.  R,  Co.  v. 
Hall,  8  III.  App.  621.  Quoted  in  Chicago 
&  W.  I.  R.  Co.  V.  Berg,  10  III.  App.  607. 

Where  a  company,  under  a  city  ordinance, 
or  the  statute,  constructs  and  operates  its 
road  in  a  street  or  highway,  but  leaves  sufTi- 
cient  space  between  the  roadbed  and  almt- 
ting  lands  or  lots  for  ordinary  vehiclis, 
teams,  and  travel,  there  is  no  such  obstruc- 
tion of  access  to  abutting  lands  or  lots  as 
to  permit  damages  for  any  depreciation  in 
value  thereof.  Chicago,  K.  &*  IV.  K.  Co.  v. 
Union  Inv.  Co.,  56  Am.  &*  Ettg,  R.  Cas.  679, 
51  Kan.  600,  33  Pac.  Rep.  378. 

The  measure  of  damage  for  deprivation 
of  access  to  property  is  the  diminution  of 
the  value  of  the  property  occasioned  by 
these  circumstances,  and  not  the  difference 
between  the  value  thereof  before  and  after 
the  building  of  the  road.  Elizabethtown,  L. 
(&-  B.  S.  R.  Co.  V.  Combs,  10  Bush  {Ky.)  382. 
—Quoted  in  Columbus.  H.  V.  &  T.  R.  Co. 
V.  Gardner,  32  Am.  &  Eng.  R.  Cas.  243,  45 
Ohio  St.  309,  II  West.  Rep.  264,  13  N.  E. 
Rep.  69. 

The  measure  of  damages  which  a  lot 
owner  may  recover  is  the  diminution  in 
value  of  his  houses  and  lot  occasioned  by 
the  location  of  the  tracks,  and  the  uses  to 
which  they  are  authorized  to  be  put  by  the 
grant  from  the  city  authorities.  If  the  loca- 
tion and  operation  of  the  road  in  front  of 
the  houses  diminished  their  value,  say, 
twenty  per  centum,  then  the  diminution 
should  be  proportioned  to  their  value  just 
preceding  the  time  at  which  it  became  gen- 
erally known  that  the  street  had  been 
selected  as  the  line  of  the  road.  Jefferson- 
ville,  M.  &*  I.  R.  Co.  v.  Esterle,  13  Bush 
{Ky.)  667,  17  Am.  Ry.  Rep.  in. 

The  jury  should  ascertain  what  the  value 
of  the  property  was  just  before  it  became 
generally  known  that  the  roads  were  to  be 
located  in  front  of  it,  and  then  determine 
what  proportion  of  that  value  was  taken 
from  the  liouses  and  lot  by  the  obstruction 
of  the  street  and  the  annoyances  incident  to 
the  movement  of  engines  and  trains  of  cars 
ilong  and  over  the  roads.  Jeffersonville, 
M.  6-  /.  R.  Co.  v.  Esterle,  13  Bush  {Ky.)  667, 
17  Am,  Ry.  Rep.  in. 

The  depreciation  of  the  market  value  of 
adjacent  property  caused  by  a  railway  in 
the  street  is  the  most  certain  measure  of 
damages  to  the  owner,    Rosenthal  v.  Tay- 


STREETS  AND    HIGHWAYS   (RAILWAYS   IN),  27S,  276.       661 


tor,  B.  &»  H.  R.  Co.,  79  Ttx,  325,  155,  W. 
Rtp.  368. 

But  in  estimating  this  market  value  it  is 
proper  to  prove  a  particular  use  to  which 
the  property  has  been  devoted,  and  an 
impaired  use  or  loss  to  the  business  may  be 
proved  as  showing  the  depreciation  in  the 
value  of  the  property.  Belt  Line  St.  R.  Co. 
V.  Crabtree,  2  Tex.  App.  (Civ.  Cas.)  579. 

Where  a  party  sues  a  conipany  for  dam- 
ages for  constructing  new  tracics  in  front  of 
his  premises,  the  damages  are  not  neces- 
sarily to  be  measured  by  tlie  proportion  that 
the  new  tracks  bear  in  number  to  the  old 
ones,  but  may  be  estimated  from  evidence 
of  witnesses  who  state  in  a  general  way 
that,  in  their  opinion,  the  premises  were 
damaged  a  certain  amount.  Gulf,  C.  6f  S. 
F.  R.  Co.  V.  Necco.iTex.)  iS  S.  W.  Rep.  564. 

Where  a  railroad  is  laid  down  in  a  public 
street,  the  abutting  property  is  damaged 
within  the  meaning  of  W.  Va.  Const,  art.  3, 
§  9,  to  the  extent  of  the  depreciation  caused 
by  the  construction  and  operation  of  the 
road.  Stewart  v.  O/tio  River  R.  Co.,  38  W. 
Va.  438,  liS.E.  Rep.  604. 

The  measure  of  the  damages  is  such  a 
sum  as  will  make  the  owner  whole — that  is, 
the  depreciation  of  the  market  value  of  the 
abutting  property  caused  by  the  company 
laying  its  track  and  running  trains  in  the 
street.  Stewart  v.  Ohio  River  R.  Co.,  38  W. 
Va.  438,  \ZS.E.  Rep.  604. 

In  such  case,  if  the  fair  market  value  of 
the  abutting  property  is  as  much  imme- 
diately after  the  construction  of  the  railroad 
as  it  was  immediately  before  such  improve- 
ment was  made,  no  damages  are  sustained 
for  which  a  recovery  can  be  had.  Stewart 
V.  Ohio  River  R.  Co.,  38  W.  Va.  438,  18  S. 
E.  Rep.  604. 

275.  Impnlrment  of  available  uses 
of  property.— The  fact  that  a  lot  is  ren- 
dered less  valuable  for  the  particular  busi- 
ness for  which  the  owner  is  using  it,  by 
reason  of  taking  the  street  in  front  of  it  for 
a  railroad,  may  be  considered  on  the  ques- 
tion of  damages.  Muller  v.  Southern  Pac. 
Branch  R.  Co.,  83  Cal.  240,  23  Pac.  Rep.  265. 

Where  a  company  builds  its  road,  without 
right,  along  a  street,  the  measure  of  dam- 
ages to  abutting  owners  is  the  loss  and  in- 
convenience sustained  by  them,  in  view  of 
the  use  to  which  such  land  has  been  put 
during  the  existence  of  such  nuisance.  The 
fact  that  in  this  interval  of  time  the  abstract 
salable  value  of  the  land  has  been  dimin- 


ished does  not  enhance  the  legal  measure 
of  damages,  in  the  absence  of  proof  that  the 
owner  had  been  prevented  from  selling,  or 
from  turning  the  premises  to  other  contem- 
plated uses  which  would  have  been  more 
profitable.  Hatfield  v.  Central  R.  Co.,  33  N. 
J.L.  211 

Where  a  railroad  is  authorized  in  a  street, 
but  an  abutting  property  owner  sues  for 
damages  caused  by  its  unlawful  use,  his 
measure  of  damages  is  the  impairment  of 
the  value  of  the  use  of  his  property  during 
the  continuance  of  the  unlawful  use  of  the 
road.  The  difference  in  the  market  value 
of  the  property  cannot  be  considered. 
Harmon  v.  Louisville,  N.  O.  &'  T.  R.  Co., 
87  7V««.  614, 1 1 S.  W.  Rep.  703.— Followed 
IN  Smith  V.  East  End  St.  R.  Co.,  38  Am.  & 
Eng.  R.  Cas.  470,  87  Tenn.  626,  11  5,  W. 
Rep.  709, 

In  determining  the  damages  to  property, 
caused  by  building  a  track  through  a  street 
in  front  of  it,  it  is  proper  to  take  into  con- 
sideration the  purpose  for  which  the  property 
was  used  at  the  time.  McFadden  v.  Schill, 
84  Tex.  77,  19  5.  W.  Rep.  368.— Follow- 
ing Gulf.  C.  &  S.  F.  R.  Co.  V.  Fuller.  63 
Tex.  467. 

Where  lot  owners  own  the  fee  to  one  half 
of  the  streets,  and  a  railroad  occupies  a 
street  so  as  to  destroy  the  ordinary  use  of 
it  on  plaintiff's  side  to  the  middle  thereof, 
it  will  be  deemed  as  having  taken  the  whole 
of  his  half  of  the  street,  though  some  five 
feet  of  it  is  not  actually  occupied,  and  he 
may  recover  as  for  the  taking  of  the  whole 
of  his  half  of  the  street.  Hegar  v.  Chicago 
6-  N.  W.  R.  Co.,  26  Wis.  624,  I  Am.  Ry. 
Rep.  35. 

270.  Difference  In  value  before 
and  after  construction*  —  In  a  suit 
under  a  town  ordinance  providing  for  the 
payment  of  damages  to  property  occasioned 
by  constructing  a  railroad  track,  the  differ- 
ence in  the  value  of  the  property  caused  by 
the  construction  of  the  road  is  the  measure 
of  damages:  and  this  may  be  shown  by  a 
comparison  of  the  sales  of  other  property 
similarly  Situated,  before  and  after  the  con- 
struction  of  the  road,  or  by  the  difference  in 
its  rental  value,  if  held  for  the  purpose  of 
renting;  but  if  not  held  for  that  purpose, 
then  the  difference  in  rental  value  would 
not  be  a  criterion.  St.  Louis,  V.  &*  T.  H.  R. 
Co.  V.  Haller,  82  ///.  208. 

Where  the  value  of  land  is  reduced  by 
the  construction  of  a  railroad  in  the  street, 


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STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  277-280. 


the  measure  of  damages  is  the  difTerence 
between  its  marlcet  value  before  the  con- 
struction and  afterwards.  Chtlago,  P.  &• 
St.  L.  R.  Co.  V.  Ltah,  41  ///.  App.  584. 

In  an  action  by  an  abutting  owner  for 
damages,  the  true  measure  of  his  damages 
is  the  value  of  the  property  immediately 
before  and  immediately  after  construction 
in  the  street  of  a  railroad,  and  a  witness 
should  not  be  allowed  to  give  his  opinion  as 
to  the  amount  of  damages,  that  being  a 
question  for  the  jury.  New  Mexican  R.  Co. 
V.  Hendricks,  (N.  Mex.)  30  Pac.  Rep.  901. 

Where  the  fee  to  streets  is  in  the  city,  the 
measure  of  compensation  to  be  made  to  an 
abutting  lot  owner  for  constructing  a  rail- 
road in  the  street  is  the  diflerence  in  the 
value  of  his  premises  immediately  before 
the  construction  of  the  road  and  their  value 
afterwards.  In  re  Brooklyn  El.  R.  Co.,  55 
Hun  165,  28  N.  y.  S.  R.  627,  8  A'.  K. 
Supp.  78. 

In  ascertaining  this,  if  the  lots  were  before 
valuable  for  residence  purposes  the  jury  may 
estimate  the  depreciation  in  value  caused 
by  cuts  and  excavations,  and  the  noises,  bell 
ringing,  whistle  blowing,  and  smoke  and 
cinders  incident  to  opening  the  road.  Ft, 
Worth  &*  N.  O.  R.  Co.  v.  Pearce,  75  Tex.  281, 
12  5.  W.  Rep.  864. 

An  instruction  that  such  damages  shall 
be  assessed  as  will  compensate  for  such 
depreciation,  if  any,  of  said  property  before 
and  after  construction  of  defendant's  road 
caused  by  same,  makes  it  sufficiently  appar- 
ent that  the  measure  of  damages  is  the 
difference  in  the  market  value  of  the  prop- 
erty immediately  before  and  after  the  con- 
struction of  such  road.  Ft.  Worth  &*  R.  G. 
R.Co.  v.Downie,%2  Tex.  383,  17  S.  W.  Rep. 
620.  Haney  v.  Gulf,  C.  &-  S.  F.  R.  Co.,  3 
Tex.  App.  (Civ.  Cas.)  336. 

277.  Difference  in  rental  value 
before  and  after  building  of  road. 
— Ordinarily,  the  measure  of  damages  for 
the  destruction  of  plaintiff's  ingress  and 
egress  to  and  from  his  property  is  the  differ- 
ence in  rental  value  occasioned  by  the  de- 
struction, though  under  some  circumstances 
the  recovery  may  be  greater,  and  the  com- 
pany cannot  comolain  of  an  instruction 
authorizing  the  jury  to  return  a  verdict  for 
the  difference  in  rental  value.  Jackson  v. 
Kiel, /^o  Am.  &*  Eng.  R.  Cas.  297,  13  Colo. 
378,  22  Pac.  Rep.  504. 

278.  Difference  in  value  with  and 
without  the  railroad.— The  measure  of 


damages  for  a  right  of  way  across  a  city  or 
town  lot  is  the  difference  between  the  valuri 
of  the  whole  land  without  the  road  ttt 
the  time  it  was  built  and  the  value  of 
the  portion  remaining  after  it  is  built; 
and  in  estimating  this  value  the  jury  should 
consider  all  present  and  prospective  actual 
damages  resulting  to  the  owner  fron  the 
prudent  construction  and  operation  of  the 
road ;  the  effect  the  road  will  have  in  de- 
creasing the  value  of  the  land  for  gardening 
purposes  and  for  the  building  of  stables  and 
outhouses;  the  dangers  occasioned  by  the 
risk  from  fire ;  the  care  of  family  and  stock, 
as  well  as  inconveniences  caused  by  em- 
bankments, excavations,  ditches,  and  ob- 
struction to  the  free  egress  from  and  ingress 
to  the  premises,  and  from  the  sounding  of 
whistles,  ringing  of  bells,  and  rattling  of 
trains.  Little  Rock,  M.  R.  &*  T.  R.  Co.  v. 
Allen,  20  Atn.  &>  Eng.  R.  Cas.  254, 41  Ark.  431. 

Where  abutting  lot  owners  own  the  fee  to 
streets,  in  ascertaining  the  compensation 
that  shall  be  made  for  constructing  a  rail- 
road in  the  streets,  the  streets  should  be 
regarded  as  a  part  of  the  adjoining  lots, 
subject  to  the  street  easement,  and  the 
damages  to  which  the  lot  owners  are  entitled 
is  the  difTerence  in  the  market  value  of  the 
whole  property,  including  the  lots  and  the 
street,  before  the  road  was  built,  and  the 
value  after  it  is  built.  In  re  Prospect  Park 
*•  C.  I.  R.  Co.,  13  Hun  (JV.  V.)  345;  a/- 
firmed  in  16  Hun  261.— Quoted  IN  Re 
New  York  C.  &  H.  R.  R.  Co.,  15  Hun  63. 
Reviewed  in  Fayetteville  &  L.  R.  R.  Co. 
V.  Combs,  51  Ark.  324. 

270.  Difference  in  value  with  road 
as  built,  and  with  road  properly 
built.— Where  an  abutting  lot  owner  sues 
to  recover  damages  for  the  negligent  or 
improper  manner  in  which  a  railroad  is 
constructed  in  the  street,  his  measure  of 
damages  is  the  difTerence  between  the  value 
of  his  property  with  the  road  as  constructed 
and  its  estimated  value  with  the  road 
properly  constructed.  Cadle  v.  Muscatine 
Western  R.  C<;.,  44  Iowa  11.  O'Connor  v. 
St.  Louis,  K.  C.  5-  N.  R.  Co.,  5  Am.  6-  Eng. 
R.  Cas.  324,  56  Iowa  735, 10  N.  W.  Rep.  263. 

280.  Tenant's  loss  of  profits.— The 
measure  of  recovery  of  a  tenant  for  injury 
to  his  business  by  the  location  and  opera- 
tion of  a  raiik-oad  in  the  street  in  front  of 
his  place  of  business  is  limited  to  the  loss 
of  probable  profits  of  his  business  from 
the  time  of  the  construction  of  the  road 


STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  281-284. 


663 


and  its  operation  on  the  street  to  sucli  tiiui! 
as  the  tenant  might,  by  the  use  of  reason- 
able diligence,  have  procured  another  place 
of  business  equally  eligible  for  his  purposes, 
including  a  reasonable  time  for  removal 
thereto.  Penn  Mut.  L.  Ins.  Co.  v.  lltiss, 
141  ///.  35.  31  A'.  E.  Rep.  138. 

281.  MeaNiiro  of  dniiiaffcs  in  ac- 
tioii8  of  trespass. — Where  abutting  Ijt 
owners  merely  sue  a  company  in  trespass 
tor  breaking  and  entering  a  close  by  run- 
ning  trains  over  said  close,  upon  land  which 
has  been  condemned  and  opened  by  the  city, 
they  cannot  recover  compensation  for  the 
use  of  the  tni,;'«  c  -i  the  theory  that  they 
own  it;  neither  is  the  measure  of  damages 
depenii'jut  upon  the  value  of  the  property, 
or  the  sum  awarded  in  the  condemnation 
proceeding  by  the  city.  Baltimore  &*  O. 
R,  Co.  V.  Boyd,  63  Md.  325. 

The  damages  recoverable  cannot  exceed 
the  difference  between  what  would  have 
been  the  rental  value  of  the  premises  (dur- 
ing the  continuance  of  the  trespass,  down 
to  the  commencement  of  the  action),  in  case 
there  had  been  no  railroad  on  the  street, 
and  their  actual  rental  value  wiil.  the  rail- 
road constructed  and  operated  as  it  was. 
Blesch  v.  Chicago  &•  N.  W.  Ji.  Co.,  43  Wis. 
183,  17  Am.  Ry.  Rep.  90. 

A  lot  owner  sued  alleging  that  defendant 
company  constructed  its  road  on  an  em- 
bankment in  the  street  in  front  of  his  lot, 
and  thereby  obstructed  access  to  the  same 
and  diminished  its  value  in  the  sum  of 
$1000,  and  that  he  sold  his  property,  some 
time  after  the  road  was  built,  for  $1000  less 
than  he  otherwise  could  have  procured  for 
it.  Held,  that  the  actio.,  must  be  treated 
as  one  for  damages  for  a  continuing  tres- 
pass. Carl  V.  Sheboygan  &*  F.  dii  L.  R.  Co., 
46  Wis.  625,  21  Am.  Ry.  Rep.  412.  —  RE- 
VIEWED IN  Uline  V,  New  York  C.  &  H.  R. 
R.  Co.,  23  Am.  &  Eng.  R.  Cas.  3,  101  N.  Y. 
98,  4  N.  E.  Rep.  536. 

But  in  such  an  action  plaintiff  can  recover 
nothing  more  than  tlie  damages  to  the 
property  resulting  from  the  trespass  be- 
tween the  building  of  the  road  and  the 
commencement  of  the  action,  and  surh  a 
recovery  will  be  no  bar  to  a  future  recovery 
by  the  grantee  for  subsequent  damages 
caused  by  maintaining  the  road  ;  therefore 
evidence  of  the  permanent  depreciation  of 
the  property  is  not  admissible.  Carl  v. 
Sheboygan  6-  F.  du  L.  R.  Co.,  46  Wis.  625, 
21  Am.  Ry.  Rep.  412. 


Dut  the  measure  of  damages  in  such  an 
action  is  not  the  mere  value  of  the  use  of 
that  part  of  the  street  occupied  by  the  rail- 
road, but  includes  the  difference  between 
the  value  of  the  use  of  the  whole  lot  with- 
out the  railroad  and  its  value  with  the  road 
in  the  street,  with  any  other  special  and 
temporary  damages  sustained  by  plaintiff. 
Carl  V.  Sheboygan  f**  F.  du  L.  R.  Co.,  46 
Wis.  625,  21  Am.  Ry.  ti-p.  412. 

1282.  ElcniRiits  of  dainr.j^HS,  gener- 
ally.*—  A  company  built  its  track  over  a 
street  under  a.'  ordinance  rcqutr'ng  it  to 
erect  and  maii.iain  a  suitable  Lridge  so  as 
to  allow  the  use  of  t!'  full  width  of  the 
street.  The  street  was  Iterwards  widened, 
the  city  taking  property  on  each  side  from 
the  company  for  that  purpose.  Held,  that 
the  cost  of  reconstructing  the  bridge  was  an 
element  of  damages  to  be  allow*.'  to  the 
company.  Kansas  City  v.  Kansas  City  Belt 
R.  Co.,  47  Am.  (&*  Eng.  R,  Cas.  1 57,  102  Mo, 
633,  14  S.  W.  Rep.  808. 

In  a  suit  for  damages  to  lots  it  is  not 
error  in  the  court  to  exclude  from  the  con- 
sideration of  the  jury  such  damages,  if  any, 
as  result  from  the  grant  by  the  city  of  the 
right  to  use  the  street,  made  prior  to  the 
acquisition  of  the  land  by  plaintiff.  Morrow 
V.  St.  Louis.  A.  &*  T,  R.  Co.,  81  T*x,  405, 
175.  W.  Rep.  44. 

283.  Cost  of  removal.— Where  a  rail- 
road is  liable  to  a  property  owner  by  reason 
of  interruption  to  his  business,  he  is,  if  he 
chooses  to  remain  and  submit  to  the  inter- 
ruption and  loss  of  profits,  entitled  to  re- 
cover, as  damages,  the  necessary  cost  of 
avoiding  such  loss  by  a  removal.  St.  Louis, 
V.  &*  T.  H.  R.  Co.  V.  Capps,  72  ///.  188 

'284.  Deprivation  of  access,  light, 
and  air. — It  is  not  necessary  that  a  portion 
of  a  lot  should  actually  have  been  taken  by 
a  company  to  entitle  the  owner  to  damages 
for  the  obstruction ;  but  if  access  to  and 
egress  from  the  property  have  been  cut  off 
by  the  railroad,  the  owner  suffers  a  peculiar 
and  special  injury  for  which  he  is  entitled 
to  compensation.  Leavenworth,  N.  &*  S. 
R.  Co.  V,  Curtan,  56  Am.  &^  Eng.  R.  Cas. 
636.  51  Kan.  432,  33  Pac.  Rep.  297. 

Where  a  railroad  is  so  located  in  a  street 
as  to  deprive   an  abutting  owner  of  the 


I 


*  Elements  of  damage  where  lots  are  taken, 
see  note,  14  Am.  &  Eng.  R.  Cas.  175. 

Damages  for  closing  street  by  construction 
of  railroad,  see  51  Am.  &  Eng.  R.  Cas.  628, 

a/'^tr. 


664        STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  288-287. 


J.11 


.T 


1; 


means  of  ingress  and  egress  with  ordinary 
vehicles  on  either  side  of  the  road  when 
trains  arc  passing  or  standing  on  the  street, 
such  owner  is  entitled  to  recover  damages. 
Elizabethtown,  L.  &»  B.  S.  R.  Co.  v.  Combs, 
10  Bush  {Ky.)  382. 

In  estimating  damages  caused  to  a  lot  by 
the  construction  and  maintenance  of  a  rail- 
way in  the  street,  but  beyond  the  centre 
line  thereof,  only  sucli  injuries  to  the  prop- 
erty should  be  considered  as  j)roxin)ately 
result  from  interference  with  the  appurte- 
nant easement  for  purposes  of  access,  light, 
and  air  which  the  owner  has  in  tluit  part  of 
the  street.  Lamm  v.  Chicago,  St.  P.,  M.  &» 
O.  K.  Co.,  46  Am.  &*  L'njf.  K.  Ciis.  42,  45 
Minn.  71,  47  A'.  W.  Rep.  455. 

Where  a  railroad  is  authorized  in  a  street, 
but  the  company  raises  an  embankment 
several  feet  liigh,  the  measure  of  damages 
to  an  abutting  owner  is  the  depreciation 
of  his  property  by  reason  of  the  embank- 
ment. It  is  error  to  take  into  account 
plaintiff's  loss  of  business  and  the  incon- 
venience suffered  by  him  from  noise  and 
smoke  incident  to  running  the  cars.  Reming 
V.  h'ew  York,  L.  E.  6-  IV.  R.  Co.,  i  N.  Y. 
S.  R.  733.— Distinguishing  Ulinew.  New 
York  C.  &  H.  R.  R.  Co.,  loi  N.  Y.  98. 

A  company  owned  corner  lots,  diagonally 
opposite  each  other,  at  the  intersection  of 
two  public  streets.  It  built  abutments  on  its 
own  land  at  each  corner,  and,  with  the  con- 
sent of  the  city,  threw  a  bridge  from  one 
abutment  to  the  other,  the  height  of  the 
bridge  above  the  street  being  twenty-three 
feet.  The  bridge  overhung  no  land  except 
what  was  included  within  the  limits  of  the 
streets.  Plaintifl  owned  a  dwelling  house 
situated  at  one  of  the  cor.;ers.  Held,  that 
the  only  element  of  damages  was  the  addi- 
tional servitude,  if  any,  imposed  upon  plain- 
tiff's property,  such,  for  example,  as  the 
exclusion  of  liglit  and  air  from  his  dwell- 
ing. Jones  v.  Erie  <&*  W,  V.  R.  Co.,  151  Pa. 
St.  ;o,  25  Atl.  Rep.  134. 

285.  IiijuricM  suffered  by  plaintiff 
ill  coiiiiiiou  with  others."'— An  instruc- 
tion that  the  abutting  property  owner  is  not 
entitled  to  recover  damages  which  he  or  his 
tenants  may  have  sustained,  or  will  sustain, 
by  reason  of  any  annoyance,  inconvenience, 
or  loss  suffered  by  them  in  common  with 
the  rest  of  the  public,  by  reason  of  the  con- 
struction and  operation  of  said  track— he/J, 

*  See  also  ante,  2 1 4-2 1 6. 


proper,  the  jury  being  also  instructed  that 
depreciation  in  the  value  of  plaintiff's  prop- 
erty on  such  account  would  entitle  him  to 
recover.  Cook  v.  Chicago,  M.  &*  St.  P.  R. 
Co.,  83  Iowa  278,  49  N.  W.  Rep.  92.  —  Dis- 
tinguishing McClean  v.  Chicago,  I.  &  D. 
R.  Co.,  67  Iowa  570. 

Ill  an  action  for  damages  for  constructing 
a  switch  line  along  a  street  it  is  proper  to 
charge  the  jury:  "In  estimating  the  dam- 
ages you  will  not  take  into  consideration 
either  the  benefits  or  injuries  to  plaintiff's 
property  which  he  may  receive  in  common 
with  the  community  generally  where  said 
property  is  situated,  resulting  from,  operat- 
ing the  road,  and  not  peculiar  to  him  and 
connected  with  his  ownership  and  enjoy- 
ment of  said  property."  Morrow  v.  St. 
Louis,  A.  &*  T.  R.  Co.,  81  Tex.  405,  17  S. 
\V.  Rep.  44  —Following  Gulf,  C.  &  S.  F. 
R.  Co.  V.  Fuller,  63  Tex.  467. 

280.  Injuries  to  contiguous  prop- 
erty.—  Depreciation  in  the  value  of  real 
estate,  not  abutting  on  a  railroad,  caused  by 
crossing  the  street  leading  thereto  with  the 
railroad  track,  is  not  damages  recoverable 
under  Mass.  Rev.  St.  cli.  39,  §  56.  Prop'rs 
of  Locks,  etc.,  v.  Nashua  &*  L.  R.  Corp.,  10 

Cush.     (AfaSS.)     385.  —  DISTINGUISHED    IN 

Eaton  V.  Boston,  C.  &  M.  R.  Co.,  51  N. 
H.  504.  .<EviEWF.D  IN  Leroy  &  W.  R.  Co. 
V.  Ross,  40  Kan.  598. 

In  proceedings  to  condemn  for  railroad 
purposes  two  city  lots  the  owner  of  which 
also  asserted  title  of  the  entire  block,  which 
was  vacant  and  unoccupied — held,  that  he 
was  not  entitled  to  compensation  for  injury 
resulting  to  other  lots  than  the  two  touched 
by  the  railroad,  although  the  whole  com- 
prised one  body  or  block  of  land.  Wilcox 
V.  Jt.  Paul  &•  N.  P.  R.  Co.,  35  Minn.  439, 
29  A^.  IV.  Rep.  148.— Followed  in  Koerper 
V.  St.  Paul  &  N.  P.  R.  Co.,  42  Minn.  340. 

In  assessing  damages  to  the  owner  of  land 
abutting  on  a  public  street,  for  the  con- 
struction and  maintenance  of  a  railroad  in 
that  part  of  the  street  opposite  plaintiff's 
premises,  damages  are  not,  in  general,  to  be 
included  for  the  construction  and  mainte- 
nance of  the  railroad  through  other  parts 
of  the  street.  Demueles  v.  St.  Paul  &*  N. 
P.  R.  Co.,  44  Minn.  436.  46  N.  IV.  Rep.  912. 
—Following  Adams  v.  Chicago,  B.  &  N. 
R.  Co.,  39  Minn.  286. 

287.  Noise,  vibration,  smoke, 
sparks,  cinders,  etc.  —  The  use  of  a 
street  may  be  granted  to  railroads  without 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  287. 


665 


endangering  the  street  by  obstructioni  or 
embankments,  yet  if  the  use  of  locomotives 
inflicts  injury  upon  those  who  live  on  the 
street,  by  throwing  smolce  through  their 
houses,  or  by  shaking  them  or  breaking  the 
walls,  and  by  the  noise  and  screeching  of 
whistles  and  engines,  the  legislative  right 
to  run  over  the  street  does  not  make  such 
acts  harmless,  and  the  injury  inflicted  upon 
the  legal  rights  of  the  parties  is  not  damnum 
absque  injuria.  But  the  evidence  should 
be  limited  to  actual  damage.  The  right  to 
use  the  street  with  reasonable  obstruction 
in  the  passage  of  trains  is  permitted  by 
law,  and  is  not  an  element  of  damage,  nor 
is  the  jolting  over  the  rails  an  element,  nor 
the  apprehension  of  the  safety  of  children, 
nor  are  possibilities  in  cases  of  sickness,  nor 
any  inconvenience  to  visitors,  not  obstruct- 
ing ingress  or  egress,  nor  any  fanciful  or 
speculative  damages  or  sentimental  injuries, 
elements  of  damage.  But  the  damage  which 
the  law  recognizes  must  be  actual,  tangible, 
and  determinable  by  proof.  And  the  de- 
preciation of  the  property  not  only  from 
obstructions  to  access,  but  by  smoke  and 
injury  to  walls,  and  traceable  as  eflect  from 
cause,  and  the  like,  may  be  inquired  into  to 
form  the  total  of  the  injury.  (McCay,  J., 
dissenting.)  South  Carolina  R.  Co.  v. 
Steiner.  44  Ga.  546,  3  Am.  Ry.  Rep.  86.— 
Criticised  in  Colorado  C.  R.  Co.  v.  Mol- 
landin,  4  Colo.  154. 

Depreciation  in  the  value  of  property  by 
reason  of  the  construction  and  operation  of 
a  railroad  through  an  adjacent  street,  or 
annoyance  from  noise  necessarily  attending 
the  same,  is  no  ground  for  an  action  by  the 
lot  owner ;  nor  is  an  annoyance  from  smoke 
and  fire,  unless  he  is  damaged  by  their  actual 
contact  with  his  premises.  Cosby  v.  Owens- 
boro  &•  R.  R.  Co.,  10  Bush  {Ky.)  288. 

Damages  may  ^e  recovered  for  the  dim- 
in<-<tion  of  the  value  of  adjacent  property  by 
smoke,  sparks,  cinders,  cracking  of  the  walls 
of  houses,  etc.  If  the  tracks  have  been  so 
located  as  unreasonably  to  obstruct  the 
abutting  lot  owner's  means  of  ingress  and 
egress  over  the  street  to  and  from  his  lOt, 
or  if  his  houses  have  been  injured  by  hav- 
ing smoke,  sparks,  or  cinders  tlirown  or 
blown  into  or  upon  them,  or  if  their  walls 
have  been  cracked  by  the  rapid  movement 
of  heavy  trains,  he  is  entitled  to  recover  for 
the  damages  directly  resulting  therefrom. 
Jeffersonville,  M.  &*  I.  R.  Co.  v.  Esterie  1 3 
Bush  (Ky.)  667,  17  Am.  Ry.  Rep.  in. 


Damage  from  smoke,  soot,  or  fire  from 
locomotives  thrown  or  blown  into  or  against 
adjacent  houses  will  entitle  the  owner  to 
recover  therefor.  Elizabethtown,  L.  &*  B, 
S.  R.  Co.  V.  Combs,  10  Bush  {Ky.)  382. 

In  an  action  by  a  landowner  against  a 
company  that  had  constructed  its  road  on  a 
public  street  immediately  in  front  of  his 
premises,  it  appeared  that  the  charter  au- 
thorized the  company  to  construct  its  road 
to  any  given  point  in  the  town.  Held,  that 
the  discretion  of  the  directors  in  so  locating 
the  road  could  not  be  inquired  into;  and 
that,  in  the  absence  of  any  express  provision 
therefor  in  the  charter,  the  company  was 
not  liable  in  damages  for  the  annoyance 
arising  from  the  noise,  cinders,  and  smoke, 
and  the  hindrance  to  the  passage  of  car- 
riages. Struthers  v.  Dunkirk,  W.  &*  P.  R. 
Co.,  87  Pa.  St.  282.— Reviewed  in  Phila- 
delphia, G.  &  N.  R.  Co.  V.  Pennsylvania  S. 
V.  R.  Co.,  16  Phila.  (Pa.)  636. 

The  operation  of  a  railroad  on  land  taken 
by  eminent  domain  by  the  railroad  and 
abutting  on  a  public  city  street,  although 
by  reason  of  smoke  and  noise  it  is  an  annoy- 
ance, diminisliing  the  value  of  houses  on 
the  other  side  of  the  street,  is  nevertheless 
damnum  absque  injuria,  for  which  the  own- 
ers of  such  houses  are  not  entitled  to  com- 
pensation under  section  8,  art.  16,  of  the 
Pennsylvania  Constitution,  providing  for 
compensation  where  private  property  is 
taken,  injured,  or  damaged.  Pennsylvania 
R.  Co.  V.  Lippincott,  30  Am.  &*  Eng.  R.  Cas. 
399,  116  Pa.  St.  472,  8  Cent.  Rep.  818,  9  Atl. 
Rep.  871.  19  W.  N.  C.  513.  — Distinguish- 
ing Pusey  V.  Allegheny,  98  Pa.  St.  522; 
Pittsburgh  Junction  R.  Co.  v.  McCutcheon, 
18  W.  N.  C.  527;  Pennsylvania  R.  Co.'s 
Appeal,  18  W.  N.  C.  418;  Pennsylvania  R. 
Co.  V.  Duncan,  iii  Pa.  St.  352.  Quoting 
Shrunk  v.  Schuylkill  Nav.  Co.,  14  S.  &  R. 
(Pa.)  71.— Distinguished  in  Pennsylvania 
S.  V.  R.  Co.  V.  Walsh,  38  Am.  &  Eng.  R. 
Cas.  466,  124  Pa.  St.  544.  Followed  in 
Pennsylvania  R.  Co.  v.  Marchant,  33  Am.& 
Eng.  R.  Cas.  1 16,  119  Pa.  St.  541 ;  Dooner  v. 
Pennsylvania  R.  Co.,  142  Pa.  St.  36. 

The  mere  fact  that  horses  in  approaching 
plaintiff's  dwelling  might  be  frightened  at 
the  passage  of  trains  over  a  bridge  will  not 
make  the  bridge  an  obstruction  to  access  to 
plaintiff's  premises;  and  neither  this  fact 
nor  the  exposure  to  noise,  smoke,  dust,  etc., 
will  entitle  plaintiff  to  recover  damages 
under    the   Constitution    making    persons 


;\    ^i 


If 


m 


«66        STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  288-292. 


or  corporations  exercising  the  right  of  emi- 
nent domain  liable  to  malce  "  just  compen- 
sation for  property  taken,  injured,  or  de- 
stroyed by  the  construction  or  enlargement 
of  their  works."  Jona  v.  Erie  6-  W.  V.  R. 
Cc,  56  Am.  &*  Eng.  R.  Cos.  664,  1$!  Pa.  St. 
30,  25  Atl.  Rep.  134. 

288.  Obstruction  of  xhe  street.— 
On  the  assessment  of  damages  to  an  adjoin- 
ing lot  owner,  caused  by  the  establishment 
of  a  side  track  in  a  public  street,  it  is  error 
to  exclude  from  the  estimate  of  damages 
the  obstruction  of  the  street  from  the  nec- 
essary running  of  trains.  Mt'x  v.  Lafayette, 
B.  &*  M.  R.  Co.,  67  ///.  319. 

The  ordinance  of  a  town  prohibited  the 
obstruction  of  its  streets  by  trains  for  more 
than  fifteen  minutes.  Held,  not  to  legalize 
such  obstruction  for  that  length  of  time,  so 
as  to  exclude  it  from  the  estimate  of  dam- 
ages to  contiguous  property  which  might  be 
injuriously  affected  thereby.  Mix  v.  Lafa- 
yette, B.  &*  M.  R.  Co.,  67  ///.  319. 

280.  Overflow  of  water.  —  if  the 
mere  construction  unlawfully  of  a  railroad 
in  front  of  one's  lot,  on  his  side  of  the 
street,  necessarily  and  without  reference  to 
any  future  use  of  the  railroad  fmrnediately 
lessens  the  value  of  the  lot,  the  owner  may 
recover  for  such  diminution  in  value;  and  if 
it  causes  the  water  to  stand  on  his  lot,  and 
run  into  his  cellar  and  well,  though  that 
may  not  occur  for  some  time,  he  may  re- 
cover for  it.  Adams  v.  Hastings  &>  D.  R. 
Co.,  18  Minn.  260  (Gil.  236). 

290.  Reduction  of  rental  value.* 
— Reduction  in  rental  value  is  a  recognizf'd 
element  of  annual  damage  in  all  cases  of 
injuries  to  abutting  owners  from  the  misuse 
of  highways.  Grand  Rapids  &»  I.  R.  Co.  v. 
Heisel,  10  Am.  &•  Eng:  R.  Cas.  260, 47  MicA, 
393,  II  ^.  fV.  Rep.  212. 

Where  an  abutting  owner  sues  for  dam- 
ages for  the  wrongful  appropriation  of  an 
alley  along  his  property,  but  there  is  noth- 
ing to  show  that  the  alleged  wrongful  act  of 
the  defendant  caused  any  permanent  injury 
to  his  property,  the  proper  measure  of 
damages  is  the  difference  between  its  fair 
rental  value  with  the  railroad  track  as  con- 
structed and  its  rental  value  without  such 
track.  Carli  v.  Union  Depot,  St.  R.  &»  T. 
Co.,  32  Minn.  loi,  20  N.  W.  Rep.  89.  — AP- 
PROVING Brakken  v.  Minneapolis  &  St.  L. 
R.  Co.,  29  Minn.  41,  31  Minn.  45. 

*  See  alio  ante,  266. 


291.  Various  inconveniences  not 
reparable  in  damages.  —  The  plaintif! 
cannot  recover  damages  for  such  annoyance 
as  unavoidably  results  from  the  lawful  use 
of  the  defendant's  road,  nor  by  reason  of 
loud  and  profane  swearing,  distinctly  audible 
in  plaintiff's  dwelling,  in  the  neighborhood 
where  defendant  loads  and  unloads  its  cars, 
when  it  is  not  shown  that  the  profanity 
complained  of  is  practised  by  persons  em- 
ployed by  defendant.  Neitzey  v.  Baltimore 
&*  P.  R.  Co.,  26  Am.  &*  Eng.  R.  Cas.  553,  5 
Mackey  {D.  C.)  34. 

In  an  action  for  damages  against  a  com- 
pany which  carried  granite  from  its  quarry 
to  the  main  line  of  a  railroad  by  means  of  a 
railroad  of  its  own,  which  passed  through 
the  street  of  a  village,  and  by  reason  of 
which  it  was  alleged  that  injury  resulted  to 
the  owners  of  property  abutting  on  the 
street,  danger  of  possible  collision  of  animals 
and  persons  with  the  trains  running  on  the 
track  along  the  street,  or  cf  persons  or 
animals  being  thereby  frightened,  were  not 
elements  of  damages.  Guess  v.  Stone  Moun- 
tain G.  <S-  R.  Co.,  28  Am.  &»  Eng.  R.  Cas. 
236,  72  Ga.  320. 

The  difficulty  of  crossing  a  railroad  track 
in  a  public  street,  the  detention  by  trains, 
the  frightening  of  horses,  the  danger  to  per- 
sons crossing  the  track,  and  the  like,  are 
inconveniences  which  property  owners  on 
the  street  have  to  suffer,  and  for  which  they 
cannot  recover  in  a  suit  for  damages.  Stone 
v.  Fairbury,  P.  &>  N.  W.  R.  Co.,  68  ///.  394. 
—Criticised  in  Adams  v.  Chicago,  B.  & 
N.  R.  Co.,  36  Am.  &  Eng.  R.  Cas.  7,  39 
Minn.  286,  39  N.  W.  Rep.  629,  i  L.  R.  A. 
493-  Quoted  in  Lake  Shore  &  M.  S.  R. 
Co.  V.  Cincinnati,  S.  &  C.  R.  Co.,  30  Ohio 
St.  604.  Reviewed  in  Spencer  v.  Point 
Pleasant  &  O.  R.  R.  Co.,  23  W.  Va.  406. 

202.  Benefits.  —  In  an  action  by  the 
owner  of  abutting  property  against  a  com- 
pany, for  damage  to  the  freehold  and  for 
diminishing  the  annual  value  of  the  prem- 
ises for  use,  there  can  be  no  recovery  as  to 
the  freehold  where  the  market  value  has 
been  increased ;  but  as  to  the  latter  cause 
of  action,  there  may  be  a  recovery  notwith- 
standing such  increase  in  the  market  value. 
A  wrongdoer  cannot  set  off  increase  of 
market  value  caused  by  his  wrongful  act 
against  loss  of  rents  and  profits  occasioned 
thereby.  Davis  v.  East  Tenn.,  V.  6-  G.  R. 
Co.,  50  Am.  &»  Eng.  R,  Cas.  137,  87  Ga.  605, 
13  S.  E.  Rep.  567. 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN).  293. 


667 


Where  a  lot  is  divided  by  a  street,  bene- 
fits to  one  part  cannot  be  set  ofl  against 
damage  to  the  other  part  on  the  other  side 
of  the  street,  caused  by  laying  railroad 
tracks  in  the  street.  Pittsburg,  Ft.  W.  &* 
C.  R.  Co.  V.  Heich,  loi  ///.  137. 

If  the  construction  and  operation  of  a 
railroad  and  side  track  along  a  public  street 
in  front  of  a  house  and  lot  will  not  have  the 
effect  of  decreasing  the  market  value  of  the 
property,  but  the  same  will  sell  for  more 
money  in  the  open  market  than  if  the  tracks 
of  the  railroad  had  not  been  constructed 
and  operated,  there  will  be  no  damages  and 
no  cause  of  action,  Chicago  &*  G.  W.  E. 
Co.  V.  IVedel,  144  ///.  9,  32  N.  E.  Rep.  547, 

The  measure  of  damages  is  the  difference 
between  the  fair  market  value  of  the  prop- 
erty immediately  before  laying  the  track 
and  the  like  value  immediately  thereafter, 
irrespective  of  the  benefit  that  may  have 
resulted  to  the  property  from  the  laying 
down  of  such  track.  Cook  v.  Chicago,  M. 
6-  St.  P.  R.  Co.,  83  Iowa  278,  49  N.  IV. 
Rep.  92. 

Benefits  arising  directly  from  or  out  of  an 
unauthorized  act  may  sometimes  be  con- 
sidered in  the  determination  of  the  sum  to 
be  recovei  d  by  the  injured  party,  but  in  all 
cases  these  benefits  must  be  direct  and  im- 
mediate. They  must  be  confined  to  the 
proximate  consequences  of  the  act  com- 
plained of,  and  be  of  like  kind  with  the 
opposite  injuries  for  which  the  recoveiy  is 
sought.  If  the  railways  afford  the  com- 
plaining lot  owner  increased  or  additional 
facilities  for  ingress  and  egress  to  and  from 
his  houses  and  lot,  or  for  the  movement  of 
articles  in  which  he  may  deal,  or  supplies 
which  it  is  necessary  that  he  shall  procure, 
this  benefit  may  be  taken  into  consideration 
in  estimating  the  damages  he  has  sustained. 
Jeffersonville,  M.  &*  I.  R.  Co.  v.  Esttrle  13 
Bush  {Ky.)  667,  17  Am.  Ry.  Rep.  in. 

d.  Consequential,  Prospective,  and  Nominal 
Damages. 

203.     Consequential    duniagres.  — 

Where,  under  charter  authority,  a  company 
carries  a  street  over  its  tracks  by  bridge 
and  embankments,  an  abutting  owner  may 
recover  consequential  damages  in  trespass, 
but  whether  he  is  appreciably  damaged  is  a 
question  for  the  jury ;  th !  rompp.ny  is  not 
necessarily  a  trespasser.  Nicho'ton  v.  New 
York  &*  N.  H.  R.  Co.,  22  Conn.  74. 


The  guaranty  of  a  constitution  that  pri- 
vate property  shall  not  be  "  taken  "  or  "ap- 
propriated "  without  compensation  does 
not  extend  to  mere  consequential  damages 
resulting  to  property  abutting  on  a  street 
from  a  change  of  grade  of  .iie  street,  or 
other  improvement  thereof  not  constituting 
a  diversion  of  the  street  for  street  purposes, 
by  municipal  authorities  acting  within  the 
scope  of  their  charter  powers,  but  only  to  a 
trespass  upon  or  physical  invasion  of  the 
abutting  property.  Selden  v.  Jacksonville, 
28  Fla.  558,  10  So.  Rep.  457. 

Where  the  fee  of  a  street  is  in  a  munici- 
pal corporation,  and  such  corporation  grants 
to  a  railroad  company  the  right  to  construct 
its  track  and  operate  its  road  thereon,  such 
company  is  not  liable  to  an  abutting  lot 
owner  for  consequential  damages  unless 
they  result  from  the  negligent  or  improper 
construction  of  the  road.  O'Connor  v.  St. 
Louis,  K.  C.  &>  N.  R.  Co.,  5  Am.  &*  Eng.  R. 
Cas.  324,  56  Iowa  735,  10  N.  W.  Rep.  263. 

A  company  having  authority  from  the 
city  may  construct  and  operate  its  road  over 
streets  and  public  grounds  without  compen- 
sation to  the  abutting  lot  owners  for  the  use 
of  the  same,  and  without  being  liable  to 
such  lot  owners  for  consequential  damages 
arising  from  noise,  smoke,  offensive  vapors, 
sparks,  fires,  shaking  of  the  ground,  and 
other  inconveniencesand  annoyances,  where 
the  railroad  is  operated  in  a  legal  and 
proper  manner ;  and  in  fact  it  may  so  con- 
struct and  operate  its  road  without  being 
liable  to  said  lot  owners  for  any  damages, 
where  the  road  is  constructed  and  operated 
in  a  legal  and  \  .oper  manner ;  but  where 
the  property  is  a  street  or  highway,  the  rail- 
road company  will  be  liable  to  any  person 
v.ho  may  receive  actual  injury  from  the 
illegal  or  unnecessary  blocking  up  or  ob< 
structing  of  such  street  or  highway  by  the 
railroad  company,  whether  the  obstruction 
be  permanent  or  only  temporary.  Atchison 
&*  N.  R.  Co.  V.  Gar  side,  10  Kan.  552.  — Ap- 
proved IN  Central  Branch  U.  P.  R.  Co.  v. 
Andrews,  41  Kan.  370,  21  Pac.  Rep.  276. 
Followed  in  Central  Branch  U.  P.  R.  Co. 
V.  Twine,  23  Kan.  585.  Quoted  in  Ottawa, 
O.  C.  &  C.  G.  R.  Co.  V.  Larson,  40  Kan.  301. 

As  against  abutting  owners  who  have  no 
title  to  the  bed  of  a  city  street,  it  is  com- 
petent for  the  legislature  to  authorize  the 
construction  of  a  horse  or  steam  surface 
railroad  therein  without  making  compensa- 
tion to  them  for  consequential  damages 


lit- 


^n 


STREETS  AND  HIGHWAYS   (RAILWAYS  IN>,  894. 


u 


!!  J 


% 


!    I 


ariiing  from  a  reasonable  use  of  the  street 
for  purposes  of  such  a  railroad,  not  exclu- 
sive in  its  nature,  and  when  the  road  is  sub- 
stantially on  the  same  grade  as  the  street 
itself  and  passage  across  and  through  the 
street  is  left  free  and  unobstructed  for  the 
public  use.  Reining  v.  Ntw  York,  L.  &* 
W.  R.  Co.,  50  Am.  &*  Ettg.  R.  Cas.  205,  128 
A^.  Y.  157.  28  ;V.  E.  Rep.  640, 40  N.  Y.  S.  R. 
401 ;  affirming  35  N.  Y.  S.  R.  731,  13  N.  Y. 
Supp.  238.  Chapman  v.  Albany  &*  S.  R.  Co., 
10  Barb.  (N.  Y.)  360.  — Approving  First 
Baptist  Church  v.  Utica  &  S.  R.  Co.,  6  Barb. 
313.  Disapproving  Fletcher  v.  Auburn  & 
S.  R.  Co.,  25  Wend.  (N.  Y.)  462.  QtJOTiNG 
Drake  v.  Hudson  River  R.  Co.,  7  Baib.  508. 
Reviewing  Lexington  &  O.  R.  Co.  v.  Ap- 
plegate,  8  Dana  (Ky.)  289. —  Quoted  in 
Morris  &  E.  R.  Co.  v.  Mayor,  etc.,  of  Newark, 
10  N.  J.  Eq.  i$2.— Louisville  &•  F.  R,  Co.  v. 
Brown,  17  B.  Mon.  (Ky.)  763.— Following 
Wolfe  V.  Covington  &  L.  R.  Co.,  15  B.  Mon. 
409.  Quoting  and  approving  Chapman 
V.  Albany  &  S.  R.  Co.,  10  Barb.  360.  Re- 
viewing Lexington  &  O.  R.  Co.  v.  Apple- 
gate,  8  Dana  289.— Approved  in  Cosby  v. 
Owensboro  &  R.  R.  Co.,  10  Bush  288.  Fol- 
lowed IN  Fulton  V.  Short  Route  R.  Trans- 
fer Co.,  85  Ky.  640,  7  Am.  St.  Rep.  619,  4  S. 
W.  Rep.  332.  Reviewed  in  Newport  &  C. 
Bridge  Co.  v.  Foote,  9  Bush  264;  Elizabeth- 
town,  L.  &  B.  S.  R.  Co.  V.  Combs,  10  Bush 
l%2.— Morris  &*  E.  R.  Co.  v.  Mayor,  etc.,  of 
Newark,  10  N.J.  ^^7. 352.— Approving  Rad- 
cliff  V.  Mayor,  etc.,  of  Brooklyn,  4  N.  Y.  195. 
Quoting  Chapman  v.  Albany  &  S.  R.  Co., 
10  Barb.  360.— Quoted  in  Beseman  v.  Penn- 
sylvania R.  Co.,  33  Am.  &  Eng.  R.  Cas.  107, 
50  N.  J.  L.  235;  Spencer  v.  Point  Pleasant 
&  O.  R.  R.  Co.,  23  W.  Va.  406. 

Where,  however,  for  ordinary  street  uses, 
the  street  is  practically  and  substantially 
closed  against  such  owners,  they  are  entitled 
to  compensation.  Reining  v.  New  York,  L. 
&*  W.  R.  Co.,  10  Am.  &»  Eng.  R.  Cas.  205, 
128  A':  Y.  157.  28  N.  E.  Rep.  640,  40  N.  Y. 
S.  R.  401 ;  affirming  35  N.  Y.  S.  R.  731,  13 
N.  Y.  Supp.  238. 

It  is  not  error  to  refuse  to  give  a  charge 
that  plaintiff  could  only  recover  when  some 
actual  physical  damage  was  done  to  the  lot 
by  the  construction  of  the  road,  and  that 
the  jury  should  reject  from  consideration 
all  claim  for  damages  based  upon  probable 
injury  to  occur  from  fire,  from  noise  of 
trains,  from  probable  running  off  the  track 
of  can  on  the  premises  of  plaintiff,  and 


from  the  probable  scaring  of  horses.  Gulf, 
C.  &'S.  F.  R.  Co.  V.  Bock,  63  Tex.  245.— Fol- 
lowing Gulf,  C.  &  S.  F.  R.  Co.  V.  Eddins, 
60  Tex.  656. 

204.  Prospective  damages.  —  A 
right  of  action  accrues  to  a  lot  owner  for 
damages  for  any  injury  to  the  lot  caused  by 
the  location  and  operation  of  a  railroad  in 
the  street  in  front  thereof,  from  the  time  of 
the  completion  of  the  road  and  its  opera- 
tion, in  which  he  may  recover  prospective 
as  well  as  present  damages.  Rut  such 
owner  is  not  bound  to  sue  immediately,  and 
defendant  cannot  complain  that  he  waits 
until  his  damages  become  susceptible  of 
absolute  proof  before  bringing  his  action, 
instead  of  resorting  to  prospective  dam- 
ages. Penn  Mut.  L.  Ins.  Co.  v.  Heiss,  141 
///.  3S.  31  N.  E.  Rep.  138. 

Where  the  wrong  done  by  a  railroad 
company  is  temporary  in  its  nature,  as  in 
unnecessarily  leaving  cars  on  its  track,  or 
while  engaged  in  the  work  of  laying  down  its 
track,  something  existing  to-day  and  not  to- 
morrow, fluctuating  in  extent  and  depend- 
ing on  the  ever- repeated  action  of  the 
company,  only  such  damages  as  have  fully 
accrued  prior  to  the  commencement  of  the 
suit  are  recoverable,  and  none  based  upon 
any  presumed  continuance  or  repetition  of 
the  wrong.  Central  Branch  U.  P.  R.  Co.  v. 
Twine,  23  Kan.  585.— DISTINGUISHED  IN 
Ft.  Scott,  W.  &  W.  R.  Co.  V.  Fox,  40  Am.  & 
Eng.  R.  Cas.  331.  42  Kan.  490,  22  Pac. 
Rep.  583. 

But  where  the  wrong  is  of  a  permanent 
nature,  and  springs  from  the  manner  in 
which  the  track  as  fully  completed  affects 
approach  to  the  lot,  then,  notwithstanding 
the  right  which  the  state  retains  to  control 
the  manner  of  use  of  a  highway  by  a  rail- 
road company,  even,  if  deemed  necessary,  to 
compel  an  entire  removal  of  its  track,  the 
lot  owner  may  treat  the  act  of  the  company 
as  a  permanent  appcopriation  of  the  right 
of  access  to  his  lot,  and  recover  as  damages 
the  consequent  depreciation  in  value  of  the 
lot.  Central  Branch  U.  P.  R.  Co.  v.  Twine, 
23  Kan.  585.— Distinguished  in  Inter- 
State  Con.  R.  T.  R.  Co.  v.  Early.  46  Kan. 
197. 

Where  the  action  is  to  recover  damages 
for  laying  a  track  in  a  street,  in  the  absence 
of  any  ordinance  fixing  the  grade  of  the 
street,  and  where  the  evidence  shows  that 
the  existing  condition  of  the  street  is  but 
temporary,  the  fact  that  the  track  it  a  little 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  296-297. 


669 


above  the  surface  of  the  street  should  not 
be  regarded  as  an  intent  permanently  to 
establish  a  nuisance  in  the  street,  and  the 
recovery  should  be  limited  to  the  actual 
damages  up  to  the  commencement  of  the 
action.  Smith  v.  Kansas  City,  St,  J.  &•  C. 
B.  R.  Co.,  98  Mo.  20,  II  S.  IV.  Rep.  259.— 
Distinguished  in  Wallace  v.  Kansas  City 
&  S.  R.  Co.,  47  Mo.  App.  491.  Followed 
in  Gaus  &.  S.  Mfg.  Co.  v.  St.  Louis,  K.  &  N. 
R.  Co.,  113  Mo.  308.  Reviewed  in  Taylor 
V.  Kansas  City  Cable  R.  Co.,  38  Mo.  App. 
668. 

In  an  action  to  recover  damages  resulting 
from  the  raising  of  the  grade  of  a  street  by 
a  railroad  company,  the  abutting  owner  is 
not  entitled  to  recover  for  the  permanent 
diminution  in  the  value  of  his  property,  but 
only  for  such  damages  as  he  has  sustained 
prior  to  the  commencement  of  the  action. 
Ottenot  V.  New  York,  L.  &>  W.  R.  Co.,  43 
Am.  &*  Eng.  R.  Cas.  129,  119  N.  V.  603,  2 
Siiv.  App.  469,  23  N.  E.  Rep.  169,  28  N.  Y. 
S.  R.  483;  reversing  19  iV.  Y.  S.  R.  465,  2 
N.  Y.  Supp.  722.— Following  Uline  v. 
New  York  C.  &  H.  R.  R.  Co..  101  N.  Y.  98. 
— Distinguished  in  Reining  v.  New  York, 
L.  &  W.  R.  Co.,  128  N.  Y.  157,  40  N.  Y.  S. 
R.  392.  Followed  in  Rauenstein  v.  New 
York,  L.  &  W.  R.  Co.,  120  N.  Y.  661,  mem. 

295.  Nomiual  damages.  —  Where  a 
railroad  is  authorized  in  a  street,  but  the 
company  exceeds  its  authority  in  the  use  of 
the  road,  an  abutting  owner  may  recover 
damages ;  but  where  the  abuses  have  been 
only  occasional  and  no  particular  damage 
is  shown,  he  is  entitled  only  to  nominal 
damages.  Iron  Mountain  R.  Co.  v.  Bing- 
ham,  38  Am.  &*  Eng.  R.  Cas.  444,  87  Tenn. 
522,  4  L.  R.  A.  622,  II  5.  W,  Rep.  705. 

y.  STATE  AND  MinriCIFAL  BIOTTLATIOK. 

'.  In  General. 

290.  Statutory  provisions  to  In- 
sure safety.'*' — A  company  with  its  yards 
on  both  sides  of  a  street,  connected  by 
tracks  which  it  has  owned  and  operated  for 
many  years  without  objection,  is  invested 
with  the  right  to  the  reasonable  use  and 
enjoyment  of  its  rights  of  way,  and  its 
yards  on  opposite  sides  of  the  street,  with 
the  right  to  cross  the  streets  with  its  engine 
and  cars  in  a  reasonable  and  proper  manner; 

*  Statutory  provisions  to  prevent  accidents  on 
railroads,  see  note,  13  L.  R.  A.  18;, 


and  these  rights  the  municipality  has  no 
power  to  take  away  or  destroy  by  virtue  of 
any  inherent  power  or  legislative  grant  of 
power.  Mayor,  etc.,  of  Birmingham  v. 
Alabama  G.  S.  R.  Co.,  98  Ala.  134,  13  So. 
Rep.  141. 

Maine  Act  of  Feb.  4,  1872,  ch.  32,  which 
prohibits  any  company  from  constructing 
or  maintaining  a  track,  or  running  engines 
or  cars,  on  any  street  or  highway  so  near  any 
depot  of  any  other  railroad  as  to  endanger 
the  safe  and  convenient  access  to  such 
depot  and  the  use  of  it  for  ordinary  depot 
purposes,  being  only  a  police  regulation 
for  the  safety  of  the  public,  no  constitutional 
objection  exists  against  its  application  to  a 
road  chartered  before  its  passage.  Port' 
land,  S.  6-  P.  R.  Co.  v.  Boston  &*  M.  R.  Co., 
65  Me.  122,  10  Am.  Ry.Rep,  117. 

As  to  the  duties  and  liabilities  of  railroad 
companies  in  Tennessee,  see  East  Tenn,,  V. 
&*  G.  R.  Co.  V.  Scales,  2  Lea  (Tenn.)  688. 
East  Tenn.  .V.&'G.  R.  Co,  v.  Swaney,  5  Lea 
(Tenn.)  119.  Nashville  &•  C.  R.  Co.  v. 
Thomas,  5  Heisk.  (Tenn.)  262.  Collins  v. 
East  Tenn.  &*  V.  R.  Co.,  9  Heisk.  (Tenn.) 
841.  Louisville  &*  N.  R.  Co.  v.  Connor,  9 
Heisk.  (Tenn.)  19. 

297.  Municipal  regulation,  gen- 
erally,—(i)  In  general.— The  power  of 
the  city  of  Birmingham  over  railroads  is 
limited  by  its  charter  to  the  right  "  to  regu- 
late and  control  the  running  of  cars  or 
locomotives  upon  or  across  the  streets,  ave- 
nues, or  alleys  of  said  city,  and  to  regulate 
and  control  the  speed  of  such  cars,  engines, 
or  trains  within  the  corporate  limits  of  said 
city,"  and  as  is  provided  by  Ala.  Code, 
§  1 5 19.  Mayor,  etc.,  of  Birmingham  v. 
Alabama  G.  S.  R.  Co.,  98  Ala.  134,  13  So. 
Rep.  141. 

Power  in  a  city  charter  to  regulate  the 
moving  of  cars  across  its  streets  implies  the 
right  in  the  company  to  move  cars,  and 
confers  the  authority  only  to  prescribe  the 
manner  in  which  they  may  be  moved.  The 
city  cannot  deny  the  right  of  the  company 
to  cross  the  streets  in  the  legitimate  exer- 
cise of  the  demands  of  its  lawful  business, 
but  may  forbid  its  stopping  its  engines  and 
cars  across  a  street  in  making  up  a  train. 
Mayor,  etc.,  of  Birmingham  v.  Alabama  G. 
S.  R.  Co.,  98  Ala.  134,  13  So.  Rep.  141. 

The  power  to  regulate  does  not  imply  the 
power  to  prohibit.  Incident  to  the  owner- 
ship and  legitimate  sue  of  its  property,  the 
company  has  the  right,  whenever  reasonably 


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670 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  207. 


demanded  by  the  needs  of  its  business,  to 
distribute  its  cars  throughout  its  yards,  and 
for  that  purpose  to  cross  a  street,  subject  to 
reasonable  municipal  regulation  and  control 
as  to  the  manner  of  crossing.  Mayor,  etc., 
of  Birmingham  v.  Alabama  G.  S.  Ji,  Co.,  98 
A/a.  134,  13  So.  Rep.  141. 

Township  authorities  have  a  special  in> 
terest  in  its  highways,  beyond  that  of  the 
public  at  large,  and  may  properly  file  a  bill 
in  their  corporate  name  to  restrain  an  un- 
warranted, unjustifiable,  and  injurious  inter- 
ference with  the  highways,  threatening 
special  injury  to  the  townsliip,  and  of  such 
a  character  and  extent  as  to  call  for  the  pre- 
ventive  aid  of  equity.  Greenwich  v.  Easton 
&»  A.  R.  Co.,  24  N.  J.  Eg.  217 ;  affirmed  in 
2S  A^.  /.  Eg.  565. 

An  order  of  the  board  of  public  works  of 
a  city  requiring  a  company,  on  twenty-five 
days'  notice,  to  tear  up  a  part  of  its  track, 
which  would  prevent  it  from  running  trains 
to  its  general  depot  and  continuously  over 
its  lines  beyond  such  depot,  as  it  had  done 
without  objection  or  interruption  for  eigh- 
teen years,  is  beyond  the  authority  of  said 
board.  Sinnott  v.  Chicago  &»  N.  fV,  R.  Co., 
81   IVis.  95,  50  N.  W.  Rep.  1097. 

By  16  Vict.,  ch.  169,  municipalities  are 
authorized  to  pass  by-laws  sanctioning  the 
construction  of  branch  railways  of  limited 
length,  "  under  such  restrictions  as  the 
councils  may  see  fit."  Acting  under  this 
statute,  a  city  passed  a  by-law  authorizing 
a  railway  to  construct  a  branch  line  on  and 
across  certain  streets.  When  the  works 
were  nearly  completed,  the  corporation  dis- 
covered that  tiie  probable  effect  of  the 
works  if  completed  in  the  manner  proposed 
would  be  to  produce  a  large  body  of  stagnant 
water,  whereupon  it  required  the  company 
to  fill  in  the  space,  or  to  desist  from  the 
completion  of  the  works,  with  which  re- 
quirements the  company  refused  to  comply, 
and  the  corporation  filed  a  bill  seeking  to 
compel  the  company  to  perform  the  work 
according  to  the  views  of  the  corporation. 
The  court  refused  the  relief  prayed  and 
dismissed  the  bill  with  costs.  Kingston 
V.  Grand  Trunk  R.  Co.,  8  Grant's  Ch.  ((/. 

C.)  535- 

A  municipal  corporation  filed  .1  bill  seek- 
ing to  restrain  a  company  from  trespassing 
by  running  its  track  along  a  street  without 
the  consent  of  the  municipality,  thus  imped- 
ing traffic,  in  contravention  of  the  Railway 
Act  (C.  S.  C.  ch.  66,  §  13,  subKec.  i),    tiM, 


that  by  virtue  of  the  municipal  act  there  is 
such  power  of  management  and  control 
bestowed  upon  municipalities,  and  such  a 
responsibility  cast  upon  them,  as  to  justify 
them  in  intervening  on  behalf  of  the  inhab- 
itants for  the  preservation  of  their  rights. 
Fenthn  Falls  v.  Victoria  R.  Co.,  29  Grant's 
Ch.i^U.  C)4. 

(2)  In  Illinois— Chicago.— \5nAtr  Illinois 
Act  of  1872,  art.  5,  §  62,  relating  to  the  in- 
corporation of  cities  and  villages,  the  whole 
subject  of  the  control  of  railroads  in  streets 
is  committed  to  the  local  government  of 
such  cities  and  villages.  They  are  empow- 
ered to  enforce  police  regulations  as  to  the 
running  of  trains,  and  to  compel  companies 
to  raise  or  lower  their  tracks  so  as  to 
conform  to  established  grades,  and  when 
the  tracks  run  lengthwise  on  any  street, 
alley,  or  highway,  to  keep  the  track  on  a 
level  therewith.  Cairo  &*  V.  R.  Co.  v.  Peo- 
ple. 92  ///.  170.— Disapproved  in  Mounds- 
ville  V.  Ohio  River  R.  Co.,  37  W.  Va.  92. 
Distinguished  in  Metropolitan  City  R. 
Co.  V.  Chicago,  2  Am.  &  Eng.  R.  Cas.  291, 
96  111.  620. 

A  court  of  .chancery  will  not  assume  juris- 
diction to  control  the  use  by  a  railroad  com- 
pany of  a  street  in  an  incorporated  city,  or 
the  manner  in  which  the  track  is  laid,  or  in 
which  the  business  of  the  road  is  operated 
thereon,  for  the  reason  that  this  power  is 
conferred  by  law  upon  the  corporate  author- 
ities of  the  city,  and  the  courts  cannot 
supervise  the  exercise  of  such  power  at  the 
suit  of  the  people.  Cairo  6f*  V.  R,  Co.  v. 
People.  92  ///.  170. 

Under  III.  General  Incorporation  Law, 
art.  5,  §  I,  clauses  9  and  25,  the  common 
councils  of  cities  incorporated  under  that  law 
are  vested  with  the  exclusive  control  and 
regulation  of  the  streets  of  their  cities,  and 
with  the  power  to  direct  and  control  the 
location  of  railroad  tracks  within  the  limits 
of  their  cities ;  and  being  inconsistent  with 
the  ninth  clause  of  section  1,  article  5,  of  the 
amended  charter  of  the  city  of  Chicago, 
adopted  in  1867,  must  prevail  over  the 
latter,  which  must  be  regarded  as  not  in 
force  in  that  city.  Chicago  D.  &*  C.  Co.  v. 
Garrity,  115  ///.  155,  3  N.  E.  Rep.  448. 

The  power  of  the  city  council  to  control 
the  location  of  tracks  in  streets  in  this  re- 
spect is  subject  to  the  limitation  imposed  by 
the  ninetieth  clause  of  section  i,  article  5, 
of  the  above  act,  making  a  petition  by  the 
owners  of  the  land  representing  more  than 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  208,  200.        671 


one  half  of  the  frontage  of  the  street  neces> 
saty  to  the  grant  of  the  right  to  lay  a  track 
in  any  street.  Chicago  D,  &■*  C.  Co.  v.  Gar- 
rity,  IIS  Ji^-  '55'  3  ^-  ■^-  t^'P-  448.— Fol- 
lowing Moses  V.  Pittsburgh,  Ft.  W.  &  C. 
R.  Co.,  21  111.  522. 

111.  Act  of  1872,  relating  to  cities  and 
villages,  confers  upon  them  full  authority 
to  regulate  the  use  of  streets,  to  provide  for 
and  change  the  location,  grade,  and  cross- 
ings of  railroads,  to  require  railroad  compa- 
nies to  fence  their  roads,  to  construct  cattle- 
guards  and  crossings  of  streets,  to  keep  the 
same  in  repair,  to  maintain  flagmen  at  such 
crossings,  to  compel  the  roads  to  raise  or 
lower  their  tracks,  etc.  This  invests  incor- 
porated cities  and  villages  with  exclusive 
authority  over  the  matter  of  railroad  cross- 
ings over  streets  and  highways  within  their 
limits,  and  excludes  the  jurisdiction  of  the 
county  or  town  authorities.  Cook  County  v. 
Great  Western  R.  Co.,  119  III.  218,  10  ;\^.  E. 
Rep.  564. 

(3)  In  Louisiana — New  Orleans.— \J nder 
the  power  expressly  granted  to  the  city  of 
New  Orleans  to  regulate  the  use  of  its  streets 
by  railways,  a  discretion  is  vested  as  to 
method  and  means  of  regulation  which  will 
not  be  judicially  interfered  with,  unless  it 
is  manifestly  unreasonable  and  oppressive. 
State  V.  Cozzens,  ^6  Am.  &*  Eng.  R.  Cas.  168, 
42  La.  Ann.  1069,  8  So.  Rep.  268. 

The  power  to  regulate  the  use  of  streets 
for  railway  purposes  is  a  persisting  power, 
inhering  continuously  in  the  city  govern- 
ment, and  one  council  cannot,  by  one 
exercise  of  the  power,  deprive  succeeding 
councils  of  the  power  to  exercise  it  again 
when  such  exercise  is  found  necessary  for 
the  public  interest.  New  Orleans  City  &• 
L.  R.  Co.  V.  New  Orleans,  50  Am.  &*  Eng. 
R.  Cas.  391,  44  La.  Ann.  728,  1 1  So.  Rep.  78. 

Whether  or  not  the  legislature  itself  pos- 
sessed,under  prior  Constitutions,  the  power 
to  grant  such  exclusive  privileges,  under 
the  general  and  cautious  terms  of  the  legis- 
lative charter  of  the  city  no  such  power  is 
delegated  to  the  latter.  New  Orleans  City 
6-  L.  R.  Co.  V.  New  Orleans,  50  Am.  &*  Eng. 
R.  Cas,  391,  44  La.  Ann.  728, 11  So.  Rep.ji. 

While  valid  contract  rights  must  be  re- 
spected, or  only  interfered  with  in  the  con- 
stitutional exercise  of  the  power  of  eminent 
domain,  claims  to  exclusive  privileges,  under 
grants  which  are  ultra  vires,  cannot  be  per- 
mitted to  thwart  or  obstruct  the  municipal 
discretion  in  the  exercise  of  the  power  to 


regulate  the  streets  confided  to  the  city  to 
be  used  for  the  benefit  of  the  people.  New 
Orleans  City  &•  L.  R.  Co.  v.  New  Orleans, 
50  Am.  &*  Eng.  R.  Cas.  391,  44  La.  Ann. 
728,  II  S0.Rep.7S. 

208.  Bight  of  city  to  control  and 
improve  streets.— The  fact  that  land  is 
conveyed  by  a  deed  to  be  used  "  as  a  street " 
does  not  limit  the  control  thereof  by  the 
municipal  authorities ;  their  authority  over 
such  street  is  the  same  as  over  any  other 
street,  and  they  may  do  any  act  not  in- 
compatible with  the  street  use,  including 
the  granting  of  authority  to  lay  a  railroad 
track  thereon.  Murphy  v.  Chicago,  29 
///.  279. 

Md.  Act.  of  1828,  ch.  1 35,  under  which  Park 
street  in  the  city  of  Baltimore  was  opened, 
does  not  limit  the  authority  of  the  city  or 
the  legislature  over  the  street.  Under  the 
provisions  of  that  act  it  became  a  public 
highway,  and  as  such  is  subject  to  precisely 
the  same  uses  as  any  other  street.  Hot^es 
V.  Baltimore  Union  Pass.  R.  Co.,  10  Am.  &» 
Eng.  R.  Cas.  270,  58  Md.  603. 

200.  to  erect  gates  at  cross- 

ings.-^City  authorities  have  the  power  to 
establish  such  reasonable  appliances  in  the 
public  thoroughfares,  where  railroads  pass, 
as  will,  by  a  temporary  arrest  of  travel,  pro- 
tect the  public  from  the  danger  of  meeting 
parsing  trains.  Textor  v.  Baltimore  &•  0. 
R.  Co.,  13  Am.  &*  Eng.  R.  Cas.  635,  59  Md. 
63,  43  Am,  Rep.  540. 

Assuming  that  the  device  of  a  post  and 
beam  for  a  gate  at  a  street  railroad  crossing 
is  an  approvf^d  one,  the  planting  of  the 
necessary  post  and  the  temporary  interrup- 
tion thereby  of  travel  near  the  crossing, 
during  the  period  of  danger,  must  be  sub- 
mitted to,  notwithstanding  the  fact  that 
from  the  propinquity  of  a  man's  residence 
to  the  railway  track  it  may  work  more  in- 
terruption to  him  than  to  others.  Textor 
V.  Baltimore  <S-  O.  R.  Co.,  13  Am.  &•  Eng. 
R.  Cas.  635,  59  Md.  63,  4i  Am.  Rep.  540. 

Where  the  city,  by  express  legislative 
sanction,  has  a  right  to  allow  the  laying  of 
tracks  through  the  streets,  upon  such  terms 
and  conditions  as  it  may  prescribe,  and  such 
tracks  have  accordingly  been  laid,  it  must 
follow  that  whatever  precautions  are  rea- 
sonably incident  to  the  danger  from  the 
passing  to  and  fru  of  trains  in  a  crowded 
community  may  be  lawfully  adopted.  Tex- 
tor V.  Baltimore  &*  O.  R.  Co.,  13  Am.  &> 
Eng.  R.  Cas.  635, 19 Md.  63, 43  Am.  Rep.  540. 


MM 


;'■  :'    :!■ 


678 


STREETS   AND    HIGHWAYS   (RAILWAYS   IN),  300  308. 


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■    1    ; 


800.  City  cannot  relinquish  con- 
trol over  streets.— The  city  of  Quincy, 
under  its  charter  and  without  any  other 
legislative  act,  has  no  power  to  give  con- 
sent,  or  make  any  contract,  or  adopt  any 
ordinance  conferring  upon  a  company  the 
use  of  its  streets,  if  such  consent,  contract, 
or  ordinance  would  be  to  relinquish  its  own 
control  over  such  street,  or  to  abandon  its 
duty  to  keep  the  same  in  repair.  Chicago, 
B.  <S-  Q.  R.  Co.  V.  Quincy,  136  ///.  563,  27 
N.  E.  Rep.  192. 

The  right  given  to  a  company  by  a  city 
council  to  lay  down  and  use  tracks  in  one 
of  its  streets  is  subject  to  the  right  of  the 
general  public  also  to  use  such  street.  The 
privilege  thus  conferred  is  not  exclusive, 
but  must  be  exercised  in  common  with  the 
general  public.  The  city  may  still  improve 
and  control  such  street,  and  adopt  all  need- 
ful rules  and  regulations  for  its  manage- 
ment and  use,  and  it  cannot  alien  or  otiier- 
wise  dispose  of  the  same.  Chicago,  B.  &* 
Q.  R.  Co.  v.  Quincy,  136  ///.  563,  27  N.  E. 
Rep.  192.  Hickey  v.  Chicago  &»  IV.  I.  R. 
Co..  6  ///.  Apfi.  172. 

The  grant  of  a  right  of  way  to  a  company 
to  lay  its  road  along  a  street  of  a  city  is 
subject  to  the  paramount  right  of  the  city 
to  improve  the  street,  which  is  continuous, 
and  one  that  the  city  cannot  barter  away. 
Kansas  City,  St.  J.  <S-  C.  B.  R.  Co.  v.  Mor- 
ley,  45  Mo.  App.  304. 

A  contract  between  a  city  contractor  for 
the  construction  of  a  sewer  along  a  street 
and  a  company  having  a  right  of  way  over 
such  street  that  the  contractor  will  pay  the 
company  for  supporting  its  tracks  while  he 
builds  the  sewer  is  a  nudum  pactum  and 
void.  Kansas  City,  St.  J.  «S-  C.  B.  R.  Co. 
V.  Morley,  45  Mo.  App.  304. 

A  city  cannot  make  a  valid  contract  with 
a  railroad  company  which  will  interfere 
with  its  control  over  streets.  New  York  &- 
H.  R.  Co.  V.  Mayor,  etc.,  of  N.  Y.,  \  Hilt. 
(JV.  F.)s62. 

A  company's  agreement  to  occupy  streets 
subject  to  municipal  control  is  a  restriction 
upon  and  not  a  transfer  of  its  power  or 
franchise,  and  therefore  is  binding.  New 
York  &*  H.  R.  Co.  v.  Mayor,  etc.,  of  N.  Y., 
I  Hilt..{N.  K.)  562. 

2  Ordinances,  Generally, 

301.  Power  to  pass»  alter,  and 
amend  ordinances.  —  A  company  hav- 
ing submitted  to  construct  its  road  through 


a  city  under  an  ordinance  reserving  the 
right  to  alter  and  amend  must  submit  to 
such  alterations,  etc.,  as  are  reasonable  and 
necessary.  But  such  an  ordinance  can 
not  be  amended  or  repealed  so  as  to  affect 
essential  and  vested  rights,  or  be  allowed  to 
act  retrospectively,  to  take  away  rights 
previously  granted.  Chicago,  M.  6-  St.  P.  R. 
Co.  v.  Minnesota  C.  R.  Co.,  10  Am.  6*  Eng. 
R.  Cas.  234.  4  McCrary  (U.  S.)  606,  14  Fed. 
Rep.  525. 

A  municipal  corporation  within  the  lim- 
its of  which  a  company  has  located  its  road 
under  legislative  authority  may,  under  the 
power  to  regulate  the  use  of  streets,  pass  or- 
dinances regulatingthe  use  of  streets  by  com- 
panies constructing  and  operating  railroads 
within  the  city  under  legislative  franchises, 
provided  such  regulations  do  not  unreason- 
ably interfere  with  the  exercise  of  franchises 
conferred  by  the  legislature.  Allen  v.  Mayor, 
ftc,  of  Jersey  City,  49  Am.  &*  Eng.  R.  Cas. 
289,  53  A'^.  /.  L.  522,  22  Atl.  Rep.  257. 

A  city  has  power  to  pass  ordinances  for 
regulating  the  running  of  trains  through  a 
city,  although  the  places  be  not  on  the 
lines  of  streets,  and  is  not  confined  to 
crossings.  Pennsylvania  Co.  v.  fames,  81* 
Pa.  St.  194. 

302.  Validity  of  ordinances,  gen- 
erally.— A  city  ordinance  having  for  its 
purpose  and  effect  the  destruction  of  an 
irrevocable  valuable  franchise  belonging  to 
a  company,  and  raising  no  question  of  police 
power,  abatement  of  nuisance,  or  regulation 
of  an  admitted  right,  is  void.  Motile  v. 
Louisville  &•  N.  R.  Co.,  36  Am.  &*  Eng.  R. 
Cas.  171,  84  Ala.  115,  4  So.  Rep.  106. 

It  is  no  objection  to  the  exercise  of  this 
jurisdiction  that  the  attempted  invasion  of 
the  franchise  is  accompanied  by  acts  con- 
stituting personal  trespasses.  Mobile  v. 
Louisifille  &*  N.  R.  Co.,  36  Am.  &*  Effg.  R. 
Cas.  171,  84  Ala.  115,  4  So.  Rep.  106. 

Nor  is  it  a  valid  objection  to  its  exercise 
that  the  ordinance  is  guasi  criminal  in  its 
character.  Mobile  v.  Louisville  &-  N.  R.  Co., 
36  Am.  &'Eng.  R.  Cas.  171,  84  Ala.  115,  4 
So.  Rep.  106. 

An  action  was  commenced  against  a  com- 
pany for  violation  of  an  ordinance  in  allow- 
ing cars  to  stand  on  a  street  beyond  the 
limit  fixed  in  the  ordinance.  This  ordi- 
nanc:  prescribed  no  penalty  for  its  violation, 
but  referred  to  another  ordinance,  but  the 
record  showed  that  the  ordinance  referred 
to  was  passed  some  time  after  the  act  com* 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  303-307. 


673 


the 
it  CO 
e  and 
s  can 
affect 
ed  to 
ights 

p.n. 

Eng. 
Fed. 

lim- 

road 

the 


plained  of.  Held,  that  no  recovery  could 
be  had.  Toledo,  P.  6*  W.  H,  Co.  v.  Chenoa, 
43  ///.  209. 

A  street  railway  is  subject  to  proper  police 
regulations  and  control.  A  city  ordinance 
prescribing  the  place  and  mode  of  construc- 
tion and  operation  is  valid,  and  will,  after 
its  acceptance  by  a  railway  company,  be 
regarded  as  determining  the  control  to  be 
exercised  by  the  city.  Clinton  v.  Clinton  &* 
L.  Horse  K.  Co.,  37  Iowa  61. 

303.  Must  not  bo  unreasonable.— 
The  legislative  power  of  Jersey  City  is  com- 
petent to  regulate  by  ordinance  the  use  of 
the  streets  by  railroad  companies,  but  such 
regulations  must  not  be  unreasonable.  If 
such  ordinance  be  unreasonable  only  in  its 
application  to  one  or  two  streets,  the  entire 
ordinance  on  that  account  will  not  be  va- 
cated ;  the  remedy  is  to  resist  its  enforce- 
ment in  such  localities.  State  {Pennsylvania 
R,  Co.,  Pros.)  V.  Mayor,  etc.,  of  Jersey  City, 
26  Am.  &>  Eng.  R.  Cas.  400,  47  JV./.  L.  286, 

A  city  ordinance  which  protiibits  digging 
up  the  surface  of  any  street  except  by  per- 
mission of  the  board  of  aldermen  first  had 
and  obtained,  as  applied  to  a  railroad  com- 
pany laying  its  track  across  a  street  within 
its  located  right  of  way,  is  not  a  reasonable 
regulation  of  the  company's  exercise  of  its 
corporate  franchises.  Such  an  ordinance  in 
effect  declares  that  a  right  conferred  by  the 
legislature  shall  not  be  exercised  except  by 
the  consent  of  the  city  government,  and  in 
that  respect  the  ordinance  is  illegal  and 
void.  Allen  v.  Mayor,  etc.,  of  Jersey  City,  49 
Am.  &*  Eng.  R.  Cas.  289,  53  N.  J.  L.  522, 
22  Atl.  Rep.  257. 

304.  Forbidding  the  storing  of 
crude  petroleum.  —  A  city  ordinance 
making  it  unlawful  to  keep  for  sale  any 
crude  petroleum,  or  to  keep  any  quantity 
beyond  one  barrel  of  such  petroleum,  or 
refined  carbon  oil,  in  any  building  except  in 
the  cellar,  is  violated  where  a  railroad  com- 
pany keeps  more  than  one  barrel  in  its 
warehouse,  though  it  is  for  shipment,  and 
not  held  beyond  a  reasonable  time.  Wright 
v.  Chicago  &*  N.  W.  R.  Co.,  Yj  III.  App.  200. 

305.  Forbidding  the  storing  of 
fertilizers.  —  A  city  ordinance  providing 
that  "  no  person  or  persons  shall  be  allowed 
to  store  any  guano  or  commercial  fertilizer 
at  any  point  within  the  corporate  limits  of 
the  city  "  does  not  prevent  a  railroad  com- 
pany from  storing  fertilizers  in  its  ware- 
house within  the  city,  where  it  is  authorized 

7  D.  R.  D.— 43 


by  law  to  build  its  road  into  the  city  and  to 
erect  nece.iary  storehouses  or  warehouses. 
Mayor,  etc.,  of  Athens  v.  Georgia  P.  Ct.,  29 
Am.  6-  Eng.  R.  Cas.  477,  72  Ga.  800. 

And  where  the  company  has  its  ware- 
house in  the  suburbs  of  the  city,  where  such 
fertilizers  would  be  less  offensive,  but  it 
moves  nearer  the  centre  of  the  city,  and 
erects  at  great  expense  new  depot  buildings, 
without  objection  from  the  municipal  au- 
thorities, they  .tre  estopped  from  asserting 
an  ordinance  against  the  company  prohibit- 
ing the  storage  of  such  fertilizers.  Mayor, 
etc.,  of  Athens  v.  Georgia  R.  Co.,  29  Am. 
&*  Ef^.  R.  Cas.  477,  72  Ga.  800. 

306.  Forbidding  wooden  struc- 
tures within  fire  limits.— A  city  ordi- 
nance which  forbids  any  person  to  "build 
any  wooden  house,  shed,  or  other  structure 
of  wood,  within  the  fire  limits,  *  *  *  or 
repair  with  wood  or  other  combustible  ma- 
terial the  roof  of  any  building  within  the 
fire  limits,  or  enlarge  or  elevate  a  wooden 
building  of  any  kind  within  the  fire  limits," 
does  not  apply  to  the  extension  or  enlarge- 
ment of  a  brick  depot  building  by  an  addi- 
tion at  one  end,  two  stories  high,  constructed 
of  wooden  framework,  resting  on  brick 
pillars,  and  covered  on  the  outside  with 
corrugated  iron.  But  whether  the  city 
authorities  might  not,  under  the  powers 
granted  by  the  charter,  prohibit  the  erec- 
tion of  such  structure  within  the  fire  limits, 
is  not  decided.  Montgomery  City  Council 
V.  Louisville  &•  JV.  R.  Co.,  84  Ala.  127,  4  So. 
Rep.  626. 

307.  Limiting  time  trains  may 
block  a  street. — A  city  has  the  power  to 
forbid  by  ordinance  any  company  to  leave 
an  engine,  train,  or  car  stationary  on  any 
track  owned  or  used  by  it,  where  it  is 
crossed  by  any  street  of  the  city,  for  a 
longer  time  thaa  ten  minutes,  except  in  case 
of  an  accident,  and  it  is  in  violation  of  the 
common  law  ns  well  as  of  the  ordinance  to 
do  so.  McCoy  v.  Philadelphia,  IV.  &*£.  R. 
Co.,  5  Houst.  {Del.)  599. 

Where  a  city  charter  confers  upon  the  city 
the  right  and  control  over  its  public  streets 
and  upon  the  council  the  power  to  pass  any 
ordinance  "  usual  or  necessary  for  the  well- 
being  of  the  inhabitants,"  such  city  has  the 
right  to  limit  the  time  trains  may  block  a 
street  to  ten  minutes.  Burger  v.  Missouri 
Pac.  R.  Co.,  112  Mo.  238,  20  5.  W.  Rep.  439. 

An  ordinance  prohibiting  a  train  from 
standing  directly  across   a   public   street 


m 


v:^ 


i ' 


h 


674         STREETS   AND   HIGHWAYS   (RAILWAYS   IN),  308  312. 


^I'j':  '•    f;iil| 


longer  than  two  minutes  at  one  time  is  not 
unreasonable.  Stat*  (Long,  Pros.)  v.  Mayor, 
ttc,  of  Jtruy  City,  37  N.  J.  L.  348. 

308.  Prohibiting  boys  from  riding 
on  engines  and  cars.  —  A  municipal 
ordinance  providing  that  "boys  and  other 
persons  unconnected  with  railroad  trains, 
except  passengers  and  other  persons  in  the 
act  of  taking  passage,  are  prohibited  from 
getting  ofl  or  on  engines  or  cars  at  the 
depot  or  elsewhere  in  the  city  limits"  is  not 
void  for  want  of  uniformity  or  as  being  un- 
reasonable. Bear  den  v.  Madiion.j^  Ga.  184. 

The  court  will  not  presume  that  the  munic- 
ipal authorities  will  give  an  unreasonable 
construction  to  such  an  ordinance,  so  as  to 
prevent  those  having  relatives  or  friends  ar- 
riving or  departing  on  trains  from  entering 
thereon  to  see  after  their  safety  or  comfort. 
Bear  den  v.  Madison,  73  Ga,  184. 

A  general  charter  power  to  pass  all  laws 
and  ordinances  that  the  municipal  author- 
ities may  consider  necessary  for  the  preser- 
vation of  the  health,  peace,  prosperity,  and 
security  of  the  citizens  of  said  city,  not 
inconsistent  with  the  Constitution  and  laws 
of  the  state,  would  authorize  the  passage  of 
such  an  ordinance.  Bearden  v.  Madison,  73 
Ga.  184. 

300.  Prohibiting  obstruction  of 
streets  bj'  cars.— An  ordinance  providing 
that  "  no  person  shall  put  or  cause  to  be 
put  in  any  street,  sidewalk,  or  other  public 
place  within  the  city  limits,  any  dust,  dirt, 
filth,  shavings,  or  other  rubbish  or  obstruc- 
tions of  any  kind"  will  include  the  obstruc- 
tion of  a  street  by  a  company  with  its  cars. 
Illinois  C.  R.  Co.  v.  Galena,  40  ///.  344. 

The  legislative  charter  of  a  city,  authoriz- 
ing the  adoption  of  ordinances  to  prevent 
the  incumbering  of  streets  with  carriages, 
will  authorize  an  ordinance  to  prevent  the 
obstruction  of  streets  by  cars.  Duluth  v. 
Mallett,  43  Minn.  204,  45  N.  IV.  Rep.  154. 

An  ordinance  prohibiting  the  stopping  of 
cars  or  locomotives  on  a  street  crossing  for 
the  switching  of  cars  is  not  prima  facie 
unreasonable  and  void.  Duluth  v.  Mallett, 
43  Minn.  204,  45  N.  W.  Rep.  1 54. 

310.  Prohibiting  running  of  trains 
on  certain  streets.  —  A  company  was 
chartered  to  build  a  road  "  from  some  point 
within  the  corporation  of  Richmond  to  be 
approved  by  the  common  council."  A 
point  was  selected  and  approved,  and  the 
road  built.  Afterwards  the  city  council 
passed  an  ordinance  prohibiting  the  running 


of  cars  on  the  streets  at  or  near  the  terminal 
point.  Held,  that  the  ordinance  did  not 
impair  any  vested  right  of  the  company, 
nor  deprive  it  of  its  property  without  due 
process  of  law.  Richmond,  F.  &*  P.  R.  Co. 
V.  Richmond,  96  U.  S.  521. 

An  ordinance  that  prohibits  a  company 
from  running  trains  on  certain  streets  is  not 
open  to  the  objection  that  it  denies  to  the 
company  the  equal  protection  of  the  law, 
when  it  is  the  only  company  that  has  the 
right  to  run  cars  on  such  streets.  Richmond, 
F.  &^  P.  R.  Co.  V.  Richmond,  96  U.  S,  521. 
—Quoted  in  Spencer  v.  Point  Pleasant  4 
O.  R.  R.  Co.,  23  W.  Va.  406.  Reviewed 
IN  Toronto  w.  Toronto  St.  R.  Co.,  15  Ont. 
App.  30. 

311.  Requiring  construction  of 
bridges  and  viaducts.  —  An  ordinance 
which  requires  the  widening  of  a  street 
crossing  a  railroad  under  its  track,  and  for 
the  construction  of  a  railroad  bridge  over 
the  enlarged  crossing,  to  be  paid  for  prin- 
cipally by  taxing  the  company's  contigu- 
ous property,  without  any  compensation  to 
tlie  company  for  the  burden  attempted  to 
be  imposed  on  it,  is  not  only  unreasonable, 
but  clearly  in  excess  of  the  powers  conferred 
on  the  city  council,  and  void.  Bloomington 
v.  Chicago  &*  A.  R.  Co.,  134  ///.  451,  26  N, 
E.  Rep.  366. 

In  Kansas  a  city  of  the  first  class  has  the 
power,  in  proper  cases  and  in  a  proper  man- 
ner, to  order  a  company  to  construct  a 
viaduct  over  its  tracks  where  ihey  cross  a 
public  street.  State  v.  Missouri  Pac.  R,  Co., 
20  Am.  &*  Eng.  R.  Cas.  45,  33  Aaw.  176,  5 
Pac.  Rep.  772. 

Where  a  city  of  the  first  class,  by  ordi- 
nance, orders  three  railroad  companies 
jointly  to  construct  a  viaduct,  and  the  or- 
dinance is  vague  and  indefinite  with  respect 
to  the  dimensions  of  the  viaduct  and  the 
materials  to  be  used  in  its  construction,  and 
its  construction  as  ordered  by  the  city  would 
requir»;  a  change  of  the  grade  of  certain 
streets  of  the  city,  in  violation  of  certain  pro- 
visions of  the  statutes,  a  mandamus  will  not 
lie  to  enforce  the  construction  of  such 
viaduct.  State  v.  Missouri  Pac.  R.  Co.,  20 
Am.  &*  Eng.  R.  Cas.  45,  33  Kan.  176,  5  Pac. 
Rep.  772. 

312.  Requiring  fences  ivhere  road 
passes  parks  and  public  places.— A 
city  ordinance  granting  to  a  railroad  a  right 
of  way  over  public  grounds,  on  condition 
that  the  company  erect  fences  for  the  pro- 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  313-310.        676 


tection  of  persons  and  property,  is  not 
merely  a  contract,  but  hus  the  force  of  a 
law  within  the  city,  if  uuthorized  by  the  leg- 
islature. Hayes  v.  Michigan  C,  Ji.  Co.,  15 
Am,  &*  Etig.  li,  Cas.  394,  ill  U.  S,  228,  4 
Sup.  Ct.  Hep,  369.  —  Distinguished  in 
State  ex  rel.  v.  New  Orleans  &  C.  R.  Co., 
37  La.  Ann.  589. 

Where  the  power  is  conferred  upon  cities 
to  require  railroads  to  provide  necessary 
protection  for  persons  and  property,  the 
method  of  accomplishing  the  protection  is 
at  the  discretion  of  the  city  authorities,  and 
an  ordinance  requiring  fences,  separating 
the  track  from  parks  and  other  grounds,  is 
within  the  authority  of  the  city.  Hayes  v. 
Mich^an  C,  R.  Co.,  1 5  Am.  <S-  Eng.  R.  Cas. 
394.  Ill  I/.  S.  228.  4  Sup.  a.  Rep.  369. 

313.  Beqiiiriiig  gates  and  wiitcli- 
nieu  nt  crossings.*— An  ordinance  of  a 
borough  which  prohibits  a  company  from 
running  trains  across  streets  without  erect- 
ing gates  and  providing  watchmen  is  penal 
in  its  nature,  and  must  be  construed  strictly. 
Winton  V.  Delaware  &*  H,  Canal  Co.,  1  Pa. 
Dist.  701. 

Where,  in  a  suit  for  a  penalty  under  such 
an  ordinance,  the  record  of  the  justice  of 
the  peace  does  not  show  over  or  across 
what  street  or  streets  the  railroad  ran  its 
trains  without  having  first  complied  with 
the  borough  ordinance,  a  judgment  against 
the  railroad  will  be  reversed  upon  certiorari. 
Winton  v.  Delaware  &*  H.  Canal  Co.,  I  Pa. 
Dist.  701. 

314.  Requiring  safe  platforms  for 
passengers.t— Authority  to  trustees  of  a 
village  to  pass  by-laws  to  compel  all  persons 
or  corporations  landing  passengers  within 
the  limits  of  said  village  to  construct  such 
suitable  and  safe  platforms  and  accommo- 
dations as  are  necessary  for  the  safety  of 
passengers  does  not  authorize  a  by-law 
directing  a  railroad  company  to  reconstruct 
a  platform  and  stairway  upon  land  not 
belonging  to  it,  but  which,  it  is  alleged, 
could  be  purchased  for  a  reasonable  sum. 
People  ex  rel.  v.  New  York,  N.  H.  &*  H.  R. 
Co.,  11  Hun{N.  K.)297. 

And  if  such  ordinance  or  by-law  was 
valid,  it  could  not  be  enforced  by  mandamus. 
The  only  method  of  compelling  obedience 
to  ordinances  '.:  by  aflixing  a  penalty  to 
their  violation  and  enforcing  the  same  by 

*  See  also  Crossings,  Injuries  to  Persons, 

BTC.)  AT,  45-00. 

f  See  also  Stations  and  Depots,  76-88> 


action.  People  ex  rel.  v.  New  York,  N.  H. 
&*  H  R.  Co.,  1 1  Hun  (N.  V.)  297. 

315.  Requiring  stops  to  bo  made 
at  certain  crossings.  —  Where  an  ordi- 
nancf.  ix  general  in  its  terms  and  applies  to 
all  rail  oads  alike,  requiring  trains  to  stop 
at  a  certain  street  crossing,  it  is  not  invalid 
r.s  discriminating  against  defendant  com- 
pany, on  the  ground  that  it  is  the  only  road 
crossing  the  street ;  such  ordinance  being  a 
reasonable  exercise  of  the  power  conferred 
by  the  city  charter,  giving  it  the  power  "to 
prohibit  or  regulate  the  use  of  locomotive 
engines  and  of  steam,  and  to  regulate  the 
motive  power  or  speed  of  any  portion  of 
any  railroad  within  the  city."  Buffalo  v. 
New  York,  L.  E.  6m  IV.  R.  Co.,  27  A^.  Y. 
Supp.  297,  57  N.  Y.  S.  R.  829,  6  Misc.  630, 
mem. 

310.  Violation  of  ordinances  — 
Megligeuce.'"  —  A  mnnifipal  ordinance 
prohibiting,  under  penalty  of  a  fine,  the 
backing  of  a  railroad  engine  at  a  greater 
speed  than  four  miles  an  hour,  is  a  reason- 
able police  regulation,  the  violation  of  which 
is  negligence  and  renders  the  railroad  com- 
pany liable  for  damages  at  the  suit  of  a 
person  injured,  Louisville  6^  N.  R.  Co.  v. 
Webb,  49  Am.  &*  Eng.  R.  Cas.  427,  90  Ala. 
185,8  So.  Rep.  518. 

Railroad  companies  and  their  employes 
using  railways  in  a  city  must  take  notice  of 
all  valid  city  ordinances  duly  promulgated. 
Central  R.  &•  B.  Co.  v.  Brunswick  &*  W. 
R.  Co.,  87  Ga.  386.  \iS.E.  Rep.  520. 

If  an  engineer  of  a  railway  company, 
knowing  that  persons  are  accustomed  to 
cross  the  track  between  the  streets  of  a  large 
and  crowded  city,  drives  his  engine  forward 
recklessly,  or  with  indifference  as  to  whether 
such  persons  are  injured  or  not,  and  at  a 
rate  of  speed  greatly  in  excess  of  that 
limited  by  a  city  ordinance,  an  injury  thereby 
inflicted  upon  one  of  such  persons,  even 
though  he  be  a  trespasser,  will  be  regarded 
as  the  result  of  "  such  gross  want  of  care  and 
regard  for  the  rights  of  others  as  to  justify 
the  presumption  of  wilfulness  or  wanton- 
ness." Lake  Shore  &*  M.  S.  R.  Co.  v.  Bode- 
mer,  $4  Am.  &*  Eng.  R.  Cas.  177, 139  ///.  596, 
29  A^.  E.  Rep.  692;  affirming  yi  III.  App.  479. 

The  violation  by  a  train,  at  the  time  of  an 
accident,  of  a  city  ordinance  as  to  speed 
does  not    of  itself   constitute  negligence, 

*  Negligence  in  violation  of  municipal  ordi- 
nances, see  notes,  3  Am.  &  Eng.  R.  Cas.  183 ; 
7  Id.  409. 


676        STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  »17.318. 


:(;i 


unlet!  the  plaintifl  shows  that  the  injury 
would  not  otherwise  iiave  occurred.  Phila- 
deiphia,  W.  &>  B.  A'.  Co.  v.  Sttbbiiig,  19  Am. 
&•  Bug.  />'.  Cas.  36.  62  Md.  504. 

But  it  is  competent  evidence  as  tctidin^r 
to  show  ncgliKcncc.  Meek  v.  Pennsylvania 
Co.,  13  Am.  St*  Eng.  R.  Cas.  643,  38  O/tio 
S/.  632. 

3.  Haie  of  Speed,* 

317.  Statutory  rei;nIatloii  of 
Bpeed.t  —  Tlie  law  requires  tliiit  a  train  in 
passing  tl)r(>u}j;h  a  small  town  shall  be  run 
with  a  greater  degree  of  care,  and  hence  at 
a  less  rate  of  speed,  than  is  generally  ob- 
served in  the  movement  of  the  train.  Lafa- 
yette 6-  /.  R.  Co.  V.  Shriner,  6  Ind,  141. 

The  legislature  has  the  power  to  regulate 
the  speed  of  locomotives  in  passing  through 
cities  and  towns,  and  the  exercise  of  such 
power  is  no  violation  of  the  charter  of  a 
company.  Mobile  &*  O.  R.  Co.  v.  State,  51 
Miss.  137. 

Miss.  Code,  §  1047,  which  prohibits  loco« 
motives  and  cars  from  being  run  through 
towns,  cities,  and  villages  at  a  greater  speed 
than  six  miles  an  hour,  docs  not  impose 
absolute  liability  on  a  company  for  an 
injury  done  while  the  statute  is  being  vio- 
lated, without  regard  to  the  conduct  of  the 
person  injured,  or  the  circumstances  under 
which  the  injury  occurred ;  and  when  a  com- 
pany violates  the  statute,  one  who  could  by 
the  exercise  of  ordinary  care  have  avoided 
the  injury,  and  fai  s  to  do  so,  cannot  recover. 
Strong  v.  Canton,  A.  &*  JV.  R.  Co.,  (Miss.)  3 
So.  Rep.  465.— Following  Vicksburg  &  M. 
R.  Co.  V.  McGowan,  62  Miss.  682 ;  Mobile 
&  O.  R.  Co.  V.  Stroud,  64  Miss.  784. 

The  above  statute  applies  to  damages  and 
injuries  done  to  real  estate  as  well  as  to 
personal  property,  Porterfield  v.  Bond,  39 
Am.  &*  Eng.  R.  Cas.  48,  38  Fed.  Rep.  391. 

Wisconsin  General  Railroad  Law  of  1872, 
placing  certain  restrictions  upon  the  rate  of 
speed  at  which  trains  may  run  at  crossings 
and  within  cities,  is  a  limitation  of  a  com- 
pany's franchise ;  and  the  provision  of  the 
statute  limiting  the  rate  of  speed  in  cities  to 
six  miles  an  hour  is  lawful,  although  the 


*  See  also  Crossings,  Injuries  to  Persons, 

ETC,  AT,   168-189. 

t  Rate  of  speed  in  populous  districts,  see  note 
3  L.  R.  A.  683. 

Rate  of  speed  of  trains,  see  note  11  L  R. 
A.  434- 


company's  charter  authorizes  an  unlimited 
speed.  Horn  v.  Chicago  &>  N.  IV.  R.  Co., 
38  iris.  463. 

The  above  statute  was  passed  in  favorem 
vitic,  and  u  strict  observance  of  it  is  esseii- 
tiul  to  ilic  |>ublic  welfare.  Haas  v,  C/iicago 
&*  N.  IV.  R.  Co.,  41  Wis.  44.— Following 
Langliuil  V.  Milwaukee  &  P.  du  C.  R.  Co., 
19  Wis.  489;  Martin  v.  Western  Uni(<n  K. 
Co.,  23  Wis.  437  ;  Horn  i/.  Chicago  &  N.  W. 
R.  Co.,  38  Wis.  463;  Ewen  v.  Chicago  &  N. 
W.  R.  Co..  38  Wis.  613, 

318.  Power  of  city  or  town  to  ro- 
Htrict  rate  of  Hpeod.*  — (1)  Oenerally. 
— Tiiere  can  be  no  question  as  to  the  power 
of  the  common  council  of  a  municipality  to 
regulate  by  ordinance  the  spued  of  trains 
witliin  its  limits,  but  such  ordinance  must 
be  reasonable  and  consistent  with  the  laws 
and  policy  of  the  city,  and  must  not  be  op- 
pressive, unequal,  unjust,  or  partial  and  dis- 
criminating in  its  operation.  Lake  Vieiv  v. 
Tate,  33  ///.  App.  78.  East  St.  Louis  Con- 
necting R.  Co.  V.  OHara,  49  ///.  App.  282. 

Municipal  corporations  may,  under  a  char- 
ter grant,  regulate  the  moving  of  trains  by 
steam  within  their  corporate  limits,  so  as  to 
prevent  the  destruction  of  life,  and  a  dis- 
regard of  such  regulations  places  the  person 
owning  or  controlling  such  trains  in  the 
position  of  a  wrongdoer.  Kempinger  v.  SI. 
Louis  6-  /.  M.  R.  Co.,  3  Mo.  App.  581. 

It  is  improper  to  submit  to  the  jury  the 
question  of  the  reasonableness  of  a  city 
ordinance  limiting  the  rate  of  speed  over  a 
track  laid  along  the  streets  of  the  city. 
Neier  v.  Missouri Pac.  R.  Co.,  12  Mo.  App.  25. 

The  fact  that  a  company  is  authorized  by 
the  legislature  to  lay  its  tracks  along  the 
streets  of  a  city  does  not  prevent  such  city 
from  regulating  and  limiting  the  rate  of 
speed  of  locomotives.  Neier  v.  Missouri 
Pac.  R.  Co.,  12  Mo.  App.  25. 

A  company  whose  tracks  are  laid  on  un- 
inclosed  ground  belonging  to  the  company 
but  open  to  the  public  must  nevertheless 
observe  all  reasonable  municipal  regulations 
as  to  the  movement  of  locomotives  within 
the  city  limits.  Mera  v.  Missouri  Pac.  R. 
Co.,  13  Mo.  App.  589,  14  Mo.  App.  459. 

'Municipal  regulation  of  rate  of  speed  of 
triins,  see  notes,  4  L.  R.  A.  776  ;  14  Am.  &  Eno. 
R.  Cas.  637. 

Violatior.  'A  ordinances  as  to  speed  and  sig- 
nals, se'  ni;ie,  13  Am.  &  Eng.  R.  Cas.  647. 

Mun.'.i|jal  ordinances  regulating  speed  of 
trains,  construction  and  maintenance  of  fences, 
gates,  etc.,  see  31  Am.  &  Eng.  R.  Cas.  448,  abstr. 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  310, 320.       677 


(3)  As  polici  rtgulatioHS. — An  ordinance 
regulating  speed  uf  trains,  and  requiring 
flagmen  or  watchmen  to  be  kept  at  crowded 
crossings,  may  be  passed  and  enforced  by  a 
city  under  the  general  grant  of  police  powers 
usually  found  in  municipal  charters.  No  un- 
reasonable ordinance  can  be  valid.  West- 
em  &*  A.  K.  Co,  v.  Younff,  37  Am.  &*  Eng. 
Ji.  Cas.  489,  81  Ga.  397,  7  5.  E.  Rep.  912. 

The  charter  privilege  of  a  railroad  to  fix 
the  rate  of  speed  of  trains  is  subordinate  to 
the  police  laws  of  the  state,  and  may  be 
limited  by  municipal  corporations.  Chicago, 
B.  <&-  Q.  R.  Co.  V.  Haggtrty,  67  ///.  113. 

Cities  have  the  power  to  pass  ordinances 
regulating  the  speed  of  trains  within  their 
limits.  Such  ordinances  are  police  regula- 
tions, and  to  be  valid  must  be  reasonable. 
Meyers  v.  Chicago,  R.  I.  &*  P.  R.  Co.,  7  Am. 
&*  Eng.  R.  Cas.  406,  57  Iowa  555,  42  Am. 
Rep.  50,  10  A^.   IV.  Rep.  896. 

Laws  and  ordinances  regulating  the  speed 
of  railroad  trains  are  police  regulations. 
Bluedorn  v.  Missouri  Pac.  R.  Co.,  108  Mo. 
439.  18  S.  W.  Rep.  1 103.  Gratiot  v.  Mis- 
souri Pac.  R.  Co.,  S5  Am.  Sf  Eng.  R.  Cas. 
108,  1 16  Mo.  450,  21  S.  W.  Rep.  1094. 

And  extend  to  the  inclosed  lands  of  a 
company.  Merz  v.  Missouri  Pac.  R.  Co.,  26 
Am.  &-  Eng.  R.  Cas.  537,  88  Mo.  672.— FOL- 
LOWKD  IN  Brooks  v.  Hannibal  &  St.  J.  R. 
Co.,  35  Mo.  App.  571. 

And  the  running  of  trains  in  violation 
thereof  is  negligence //r  j^,  Tobin  v.  Mis- 
souri Pac.  R.  Co.,  (Mo.)  18  5.  W.  Rep.  996. 

The  delegation  to  a  municipality  of  the 
power  to  regulate  such  trains  need  not  be 
given  in  express  terms,  but  may  be  implied 
from  the  power  of  the  city  to  abate  nui- 
sances and  provide  for  the  general  welfare. 
Bluedorn  v.  Missouri  Pac.  R.  Co.,  108  Mo. 
439.  18  S.  W.  Rep.  1103. —Quoting  Chi- 
cago, B.  &  Q.  R,  Co.  V.  Haggerty,  67  III.  1 13. 

310.  Charter  power  to  restrict.  — 
A  legislature  may  empower  municipal  au- 
thorities to  pass  ordinances  to  regulate  the 
speed  of  cars  through  cities;  and  municipal 
autliorirics  have  the  right  to  adopt  such 
ordinances  without  any  special  legislative 
sanction,  by  virtue  of  the  general  super- 
vision which  they  have  over  the  police  of 
their  respective  jurisdictions.  IVhitson  v. 
Franklin,  34  Ind.  392. — QUOTING  BufTalo  & 
N.  F.  R.  Co.  7'.  Buftalo,  5  Hill  (N.  Y.)  209. 

The  speed  of  the  trains  of  a  company 
organized  under  a  special  law  may  be  regu- 
lated by  a  municipal  ordinance  cmicti  'I  in 


pursuance  of  a  general  statute,  although  no 
reservation  to  regulate  the  speed  of  such 
company's  trains  is  inserted  in  such  special 
charter.  Cleveland,  C,  C.  &*  I.  R.  Co.  v. 
Harrington,  49  Am.  &*  Eng.  R.  Cas.  358, 
131  Ind.  426,  30  A'.  E.  Rep.  37.  —  FoLLOW- 
INO  Coal-Float  v.  JefTersonville,  112  Ind.  ij. 

Specific  authority  in  a  city  charter  to 
regulate  by  ordinance  the  speed  of  trains 
—  held,  not  to  restrict  a  general  grant  of 
authority  which,  standing  alone,  would  have 
authorized  the  adoption  of  an  ordisiance  re- 
quiring a  flagman  to  be  kept  at  a  railroad 
crossing.  Green  v.  Eastern  A*.  Co,,  52  Minn, 
79.  53  A'.  fV.  Rep.  808. 

A  town  having  the  power  to  pass  "  bylaws 
and  ordinances  for  the  regulation  and  police 
of  such  town  "  has  authority  to  regulate  the 
speed  of  trains  so  as  to  protect  life  and 
property.  Robertson  v.  Wabash,  St.  L.  &» 
P.  R.  Co.,  8^  Mo.  119. 

The  city  of  St.  Louis  has  authority  under 
its  charter  to  enact  an  ordinance  regulating 
within  its  limits  the  speed  and  operation  of 
cars  and  locomotives  propelled  by  steam. 
Men  V.  Missouri  Pac.  R.  Co.  26  Am.  &* 
Eng.  R.  Cas.  537.  88  Mo.  672. 

A  provision  in  a  city  charter  authorizing 
the  common  council  to  enact  ordinances 
"  to  prohibit  or  regulate  the  use  of  loco- 
motive engines  and  of  steam,  and  to  regu- 
late other  motive  power  and  speed  on  any 
portion  of  any  railroad  within  the  city," 
authorizes  an  ordinance  restraining  the  rate 
of  speed  of  trains.  Buffalo  v.  New  York, 
L.  E.  6-  W.  R,  Co,.  54  N.  Y.  S.  R,  150,  23 
M.  Y.  Supp.  303. 

320.  Interpretation  of  particular 
charter  proviMioDS.— That  clause  o(  the 
charter  of  Jersey  City  giving  to  the  common 
council  power,  by  general  law,  to  declare 
nuisances  and  provide  for  their  removal, 
does  not  give  the  right  to  regulate  the  run- 
ning of  locomotive  engines  and  cars.  The 
power  to  regulate  the  speed  and  running  of 
locomotives  and  cars  is  given  by  a  separate 
section  of  the  charter.  State  v.  Mayor, etc., 
of  Jersey  City,  29  N.J.  L.  170. 

A  city  charter  empowered  the  common 
council  "  to  regulate  and  control  the  run- 
ning of  engines  and  carsthrougii  the  city 
and  the  rate  of  speed  of  the  same."  The 
council  passed  an  ordinance  providing  that 
"  no  railroad  company  or  corporation  whose 
track  passes  through  or  within  the  limits  of 
the  city  shall  run  any  locomotive,  engine  or 
engines,  or  any  car  or  cars,  or  any  train  of 


% 


%  ■;'■ 


i 


678       STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  321-898. 


illt 


f^- 


cars,  or  permit  the  same  to  be  run  by  their 
agent  or  agents,  or  by  any  person  or  persons 
in  their  employ,  while  passing  through  said 
city,  at  a  greater  rate  of  speed  than  at  and 
after  the  rate  of  ten  miles  per  hour,  under 
the  penalty  of  twenty-five  dollars  for  each 
offense."  Held,  that  the  ordinance  did  not 
apply  to  engines  used  in  moving  cars  and 
making  up  trains  within  the  company's 
yards,  and  in  and  about  its  stations,  but  not 
within  the  limits  of  any  public  street  or 
thoroughfare.  Green  v.  Delaware  <S-  H. 
Canal  Co.,  38  Hun  {N.  K)  51.— Reviewing 
Buffalo  &  N.  F.  R.  Co.  v.  Buffalo,  5  Hill 
(N.  Y.)  209. 

321.  Construction  of  ordinances, 
generally. —  City  ordinances  regulating 
the  speed  of  trains  or  the  blowing  of  whis- 
tles on  engines  are  only  police  regulations, 
and  do  not  change  the  general  law  upon 
speed,  or  change  the  duties  or  rights  of 
parties  growing  out  of  a  failure  to  do  what 
the  ordinance  commands  or  the  doing  of 
what  it  prohibits,  Whelan  v.  New  York, 
L.  E.  6-  W.  R.  Co.,  38  Fed.  Rep.  15. 

An  ordinance  limiting  the  speed  of  "  pas- 
senger  trains"  does  not  apply  to  an  engine 
and  tender.  They  are  not  a  train.  Lake 
Shore  &*  M.  S.  R.  Co.  v.  Probeck,  33  ///. 

App.  145. 

322.  To  what  places  statutes  or 
ordinances  apply.  —  If  a  city  ordinance 
regulating  the  speed  of  trains  embraces  in 
Its  language  the  whole  area  of  the  city,  and 
is  reasonable  in  itself,  the  court  may  submit 
to  the  jury  the  question  as  to  whether,  on 
account  of  the  special  loral  conditions  and 
surroundings,  it  would  or  would  not  rea- 
sonably apply  to  the  particular  locality  in 
question,  that  locality  being  just  inside  of 
the  city  limits.  Central  R.  &*  B.  Co.  v. 
Brunswick  4-  W.  R.  Co.,  87  Ga.  386,  13  S. 
E.  Rfp.  520. 

A  city  ordinance  prohibiting  the  running 
of  trains  within  its  limits  at  a  greater  than 
a  prescribed  speed  will  not  be  construed  as 
applying  merely  to  the  streets  and  crossings, 
in  the  absence  of  any  limitation  to  that 
effect  in  the  ordinance.  Bluedorn  v.  Mis- 
souri Pic.  R.  Co.,  108  Mo.  439,  18  5.  W. 
Rep.  1 103.— Reconciling  State  ».  Mayor, 
etc.,  of  Jersey  City,  29  N.  J.  L.  170.— Ap- 
plied IN  Jennings  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  112  Mo.  268. 

But  does  apply  to  switch  yards.  Crowley 
v.  Burlington,  C.  R.  &»  N.  R.  Co.,t8  Am.  6- 
Eng.  R.  Cas.  $6,  6$  Iowa  658,  20  N.  IV.  Rgp. 


467,  22  A''.  JV.  Rep.  918.  Crude  v.  Missouri 
Pac.  R.  Co.,  41  Am.  &>  Eng.  R.  Cas.  357, 
98  Mo.  330,  1 1  S.  W.  Rep.  736,  4  L.  R.  A. 
776. — Distinguishing  Rafferty  v.  Missouri 
Pac.  R.  Co.,  91  Mo.  33. 

And  to  all  places  within  the  limits  of  such 
municipality,  without  regard  to  whether  the 
land  is  actually  settled  or  not.  Illinois  C. 
R.  Co.  V.  Jordan,  63  Miss.  458. — APPROVING 
Vicksburg  &  M.  R.  Co.  v.  McGowan,  62 
Miss.  682. 

The  power  given  by  a  city's  charter  to 
regulate  the  speed  of  locomotives  and  cars 
does  not  authorize  such  regulation  except 
in  the  streets  of  the  city,  its  squares,  and 
its  public  grounds.  State  v.  Mayor,  etc.,  of 
Jersey  City,  29  N.  J.  L.  170. 

Wis.  Rev.  St.  §  1809  provides  that  no 
train  shall  run  faster  than  six  miles  an  hour 
in  cities  and  villages  "until  after  having 
passed  all  the  traveled  streets  thereof." 
Held,  that  this  exception  only  applies  to 
trains  leaving  a  city,  and  it  is  unlawful  to 
lun  more  than  six  miles  an  hour  on  enter- 
ing a  city,  though  no  traveled  streets  have 
yet  been  reached.  Hooker  v.  Chicago,  M, 
&*  St.  P.  R.  Co.,  41  Am.  &>  Eng.  R.  Cas.  498, 
76  Wis.  542,  44  A^.  W.  Rep.  1085. 

323.  Validity  of  ordinances.*  — 
Ordinarily,  an  ordinance  wliich  limits  the 
speed  of  the  trains  on  one  road  and  leaves 
another  to  run  through  the  city  without 
such  limitation  will  be  unreasonable;  but 
where  one  road  runs  through  a  densely 
populated  part  of  a  city,  and  another  road 
runs  through  a  portion  of  the  same  city 
where  there  are  but  few  inhabitants,  an 
ordinance  making  a  discrimination  as  to 
the  speed  at  which  trains  of  the  two  roads 
may  be  run  can  hardly  be  said  to  be  unrea- 
sonable. Lake  View  v.  Tate,  39  Am.  6- 
Eng.  R.  Cas.  703,  130  III.  2^7,6  L.  R  A.  268, 
22  A';  E.  Rep.  791 ;  affirming  33  ///.  App.  78. 

An  ordinance  designed  to  prevent  danger 
to  persons  and  property  from  the  rapid 
movement  of  trains  through  a  municipal 
corporation  is  in  the  nature  of  a  police 
regulation,  and  is  sustainable  only  as  such. 
Duggan  V.  Peoria,  D.  &»  E.  R.  Co.,  42  ///. 
App.  536. 

To  justify  the  courts  in  declaring  void,  as 
in  restraint  of  trade,  a  city  ordinance  limit- 
ing the  rate  of  speed  of  railroad  trains  and 

*  Validity  of  municipal  ordinance  limiting  rate 
of  speed,  see  37  Au.  &  Eno.  R.  Cas.  494,  abttr.; 
56  Id.  503,  abstr. 


\ 


STREETS  AND  HIGHWAYS  (RAILWAYS   IN),  324-326.         679 


Missouri 

''»J-  357. 
L.  Ji.  A. 
Missouri 

of  such 
ther  the 
Ut'nois  C. 

ROVING 
iwan,  62 


engines  within  the  city,  its  unreasonableness 
or  want  ,.  .lecessity  as  a  police  regulation 
must  be  clear,  manifest,  undoubted,  so  as  to 
be  an  abuse  of  discretion  on  the  part  of  the 
council.  Knobloch  v.  Chicago,  M.  &■*  SL  P. 
E.  Co.,  14  Am.  &•  Etig.  R.  Cas.  625,  31  Minn. 
402,  18  A';  IV.  Rep.  106.  —  Followed  in 
Weyl  V.  Chicago,  M.  &  St.  P,  R.  Co.,  40 
Minn.  350. 

Ordinance  10,305  of  the  city  of  St.  Louis, 
regulating,  within  the  city  limits,  the  run- 
ning  and  stopping  of  cars  propelled  by 
steam,  does  not  violate  either  the  Constitu- 
tion of  the  state  or  of  the  United  States. 
Rlerz  V.  Missouri  Pac.  R,  Co.,  26  Am,  &* 
Eng.  R.  Cas.  537,  88  Mo.  672. 

A  section  providing  for  the  giving  of 
danger  signals  and  for  the  equipment  of 
railroad  cars  is  embraced  in  the  title  of  an 
ordinance  entitled  "  An  ordinance  to  regu- 
late the  speed  within  the  city  limits  of  cars 
and  locomotives  propelled  by  steam."  Berg- 
man V.  St  Louis,  I.  M.  &*  S.  R.  Co.,  28  Am. 
6-  Eng.  R.  Cas.  588,  88  Mo.  678. 

Plaintiff  city  passed  an  ordinance  restrict- 
ing the  speed  of  trains  crossing  streets  at 
grade  to  six  miles  an  hour,  except  "  passen- 
ger trains  running  on  the  Belt  Line  of  the 
New  York  Central  &  Hudson  River  Rail- 
road." heiii,  that  the  ordinance  was  not  in- 
valid as  making  an  unreasonable  '''sci  imina- 
tion  between  roads,  it  appearing  that  "  the 
Belt  Line"  is  not  a  railroad  company,  but  a 
train  run  around  the  city  for  local  passen- 
ger traffic  only,  and  not  competing  with 
other  roads.  Buffalo  v.  New  York,  L.  E. 
d-  W.  R.  Co.,  23  N.  V.  Supp.  303,  54  N.  V. 
S.  R.  150.— FoLiuwED  IN  Buffalo  v.  New 
York.  L.  E.  &  W.  R,  Co..  23  N.  Y.  Supp.  309. 

324.  Liniltingr  speed  to  ten  miles 
au  hour.— An  ordinance  limiting  the  rate 
of  speed  in  passing  over  crossings  to  ten 
miles  an  hour  does  not  imply  that  this  rate 
may  not  be  exceeded  between  crossings ; 
and  in  an  action  to  recover  damages  for 
personal  injuries,  it  is  error  to  instruct  the 
jury  that  if,  at  the  time  of  the  accident,  the 
rate  of  speed  was  more  than  ten  miles  an 
hour,  that  would  be  negligence,  if  the  injury 
was  occasioned  to  plaintiff  between  cross- 
ings and  sixty-five  yards  from  the  nearest 
one.  Central  R.  &*  B.  Co.  v.  Smith,  34 
Am.  6*  Eng.  R.  Cas.  i,  78  Ga.  694,  3  S.  E. 
Rep.  397. 

An  ordinance  which  prohibits  the  run- 
ning of  trains  at  a  greater  speed  than  ten 
miles  an  hour  in  cities  is  not  a  license  to 


run  at  such  speed  in  all  cases.  If,  in  some 
places,  that  would  be  a  dang^^rous  rate,  it 
would  be  negligence  to  run  at  that  speed. 
The  rate  of  speed  must  conform  to  the 
safety  of  the  public.  Wabash  R.  Co.  v. 
Henks,  91  ///.  406.— Reviewed  in  Wabash, 
St.  L.  &  P.  R.  Co.  v.  Weisbeck,  14  III. 
App.  525. 

An  ordinance  regulating  the  speed  of 
trains  to  a  rate  not  exceeding  ten  miles  an 
hour  is  not  unreasonable,  though  the  town 
lies  almost  wholly  on  one  side  of  the  track, 
and  none  of  its  streets  crosses  the  right  of 
way.  Larkin  v.  Burlington,  C.  R.  &»  N.  R. 
Co.,  85  lo7va  492,  52  A^.  W.  Rep.  480.— Dis- 
tinguishing Meyers  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  57  Iowa  556,  10  N.  W.  Rep.  896. 

325. eight  miles.— Where  a  stat- 
ute provides  that  no  ordinance  shall  limit 
the  rate  of  speed  in  case  of  passenger  cars 
to  less  than  ten  miles  per  hour,  nor  in  any 
other  case  to  less  than  six  miles  per  hour, 
an  ordinance  limiting  the  speed  of  all  trains 
to  eight  miles  per  hour  is  invalid,  even  as 
to  freight  trains.  Duggan  v.  Peoria,  D.  &* 
E.  R.  Co.,  42  ///.  App.  536. 

326. six  miles.  —  Pre  visions  in 

a  municipal  charter  that  the  authorities 
should  declare  what  are  nuisances,  regulate 
the  police,  and  make  ordinances  for  the  pub- 
lic good  —  held,  to  extend  to  an  ordinance 
limiting  trains  to  a  speed  of  six  miles  an 
hour.  Chicago,  B.  &•  Q.  R.  Co.  v.  Haggerty, 
67  ///.  113.- Quoted  in  Bluedorn  v.  Mis- 
souri Pac.  R.  Co.,  108  Mo.  439. 

An  ordinance  which  prohibits  the  running 
of  trains  or  cars  through  the  corporate  limits 
at  a  greater  speed  than  six  miles  an  hour 
includes  an  engine  running  "  wild,"  without 
cars  atti:ched.  East  St.  Louis  Connecting  R. 
Co.  V.  O'Hara,  49  ///.  App.  282. 

Miss.  Code  1880,  §  1047,  fixing  six  miles 
an  hour  as  the  maximum  speed  of  locomo- 
tives and  cars  in  towns  and  cities,  does  not 
confer  the  right  to  maintain  that  rate  of 
speed  where,  under  all  circumstances,  the 
exercise  of  reasonable  caution  would  require 
that  they  be  run  more  slowly.  Louisville, 
N.  0.  &^  T.  R.  Co.  V.  French,  69  Miss.  121, 

12  So.  ReP.  338. 

One  who  sustains  damages  by  the  run- 
ning of  trains  at  a  greater  speed  than  six 
miles  an  hour  through  a  town  whose  inhab- 
itants comprise  only  ten  families,  including 
the  company's  section  gang;  whose  munici- 
pal authorities  have  never  held  a  session 
since  the  organization  of  the  town;  whose 


i 


680       STREETS  AND  HIGHWAYS  (RAILWAYS   IN),  327, 328. 


!  I'.'  ' 


m- 


:i  M 


mayor  has  no  docket,  and  has  never  been 
called  upon  to  perforin  an  official  act ;  whose 
town  marshal  has  never  been  elected,  nor 
does  the  evidence  show  the  slightest  need 
for  him,  and  whose  citizens  dwell  together 
in  Arcadian  simplicity  and  quiet,  may  never* 
theless  recover  damages  from  the  company. 
Be//  V.  K'ansas  City  M.  &»  B.  Ji.  Co.,  {Miss.) 
9  So.  Rep.  289. 

An  ordinance  limiting  the  speed  of  trains 
to  six  miles  an  hour  is  both  reasonable  and 
humane.  Gratiot  v.  Missouri  Pac.  Ji.  Co., 
55  Am.  &*  Eng.  R.  Cas.  108,  116  Mo.  450,  21 
S.  W.  Rep.  1094. 

An  ordinance  of  the  city  of  St.  Louis 
limiting  the  speed  of  locomotives  over  its 
streets  to  six  miles  an  hour  does  not  con- 
flict with  the  franchise  ot  the  Missouri 
Pacific  railroad  company,  and  its  franchise 
to  lay  tracks  along  a  certain  street  does 
not  authorize  the  running  of  locomotives 
thereon  at  the  rate  of  fifteen  miles  an  hour, 
in  violation  of  a  city  ordinance.  Neier  v. 
Missouri  Pac.  R.  Co.,  12  Mo.  App.  2f. 

327. Ave  miles. —  The  corporate 

authorities  of  a  town  enacted  that  "  it  shall 
be  unlawful  for  any  railroad  company,  by 
themselves  or  their  agents,  to  run  at  a 
greater  rate  of  speed  within  the  corporate 
limits  of  the  town  of  Cuba  than  five  miles 
per  hour,"  and  provided  a  penalty  for  its 
violation  of  not  less  than  %\o  or  more  than 
$100.  He/d,  that  the  corporate  authorities 
had  the  power  under  the  statute  to  pass  the 
ordinance,  and  while  it  was  somewhat  in- 
formal,  its  meaning  was  plain  enough  to  be 
easily  understood.  To/edo,  P.  &*  W.  R.  Co. 
V.  Deacon,  63  ///.  91,  7  Am.  Ry.  Rep.  130. 

An  ordinance  limiting  the  rate  of  speed 
of  trains,  to  have  the  cfTect  of  raising  the 
statutory  presumption  that  an  injury  results 
from  the  negligence  of  the  company  in  run- 
ning its  trains  at  a  rate  prohibited  by  the 
ordinance,  must  conform  to  the  statute. 
Where  a  statute  declares  tliat  no  ordinance 
shall  limit  the  speed  of  passenger  trains  to 
less  than  ten  miles  per  hour,  an  ordinance 
limiting  the  speed  to  five  miles  per  hour  is 
not  competent  evidence.  Chicago,  B.  &•  Q. 
R.  Co.  V.  Dougherty,  12  ///.  App.  181. 

Where  its  charter  authorizes  a  city  to  en- 
act ordinances  "  not  repugnant  to  the  Con- 
stitution and  laws  of  this  state,"  and  "to 
regulate  and  restraii,  the  speed  of  cars  in 
passing  through  said  city,"  a  statute  allow- 
ing  six  miles  per  hour,  an  ordinance  is  void 
that  prohibits  the  running  of  trains  in  cer- 


tain parts  of  the  city  at  a  greater  speed  than 
five  miles  an  hour.  Horn  v.  Chicago  &» 
N.  W.  R.  Co.,  38  Wis.  463.— Followed  in 
Haas  V.  Chicago  &  N.  VV.  R.  Co.,  41  Wis.  44. 

328.  foiiriiiiles.  —  An  ordinance 

of  a  city  requiring  all  trains  within  its  limits 
to  be  run  at  a  speed  of  not  over  four  miles 
an  hour,  if  its  enactment  is  authorized  by  a 
statute,  is  valid,  and  evidence  will  not  be 
heard  that  such  ordinance  is  unreasonable, 
and  therefore  void.  C/eve/and,C.,  C.  6-/. 
R.  Co.  v.  Harrington,  49  Am.  &*  Eng,  R. 
Cas.  358,  131  Ind.  426,  30  iV.  E.  Rep.  37. 

An  ordinance  limited  the  speed  of  trains, 
within  the  limits  of  the  city,  to  four  miles 
per  hour,  and  the  road  ran  for  some  three 
miles  after  entering  the  city  limits,  before 
reaching  the  inhabited  portion  thereof, 
through  farm  lands,  where  the  track  was 
fenced  and  no  streets  laid  out.  He/d,  that 
such  ordinance  as  to  the  speed  on  that  por- 
tion of  the  track  was  unreasonable  and  void. 
Meyers  v.  Chicago,  R.  I.  &*  P.  R.  Co.,  7  Am. 
&*  Eng.  R.  Cas.  406,  57  loiva  555,  42  Am, 
Rep.  50.  10  A^.  W.  Rep.  896. 

To  justify  the  courts  in  declaring  void,  as 
in  restraint  of  trade,  a  city  ordinance  limit- 
ing the  rate  of  speed  of  trains  and  engines 
within  a  city  to  four  miles  an  hour,  its 
unreasonableness  or  want  of  necessity  as  a 
police  regulation  must  be  clear,  manifest, 
and  undoubted,  so  as  to  be  an  abuse  of  dis- 
cretion on  the  part  of  the  city  council. 
Knob/och  V.  Chicago,  M.  &*  St.  P.  R.  Co.,  14 
Am.  5-  Eng.  R.  Cas.  625,  31  Miiin.  402,  18 
N.  W.  Rep.  106.— Followed  in  Weyl  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  40  Minn.  350, 
42  N.  W.  Rep.  2\.—  Wey/\.  Chicago,  M.  &* 
St.  P.  R.  Co.,  40  Minn.  350, 42  A'.  W.  Rep.  24. 
—Following  Knobloch  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  31  Minn.  402. 

An  ordinance  of  a  city  limiting  the  speed 
of  trains  to  fc  jr  miles  an  hour  is  unreason- 
able and  void  as  applied  to  a  certain  part  of 
defendant's  road  in  the  suburbs  of  the  city. 
Evison  V.  Chicago,  St.  P.,  M.  &•  O.  R,  Co.,  45 
Minn.  370,  48  A'.  W.  Rep.  6. 

An  ordinance  restricting  the  speed  of 
trains  to  four  miles  an  hour,  passed  by  a 
town  of  the  fourth  class  which  has  only  in- 
cidental power  to  pass  an  ordinance  restrict- 
ing the  speed  of  trains,  and  which  has  only 
a  population  of  1500,  and  of  which  only  one 
third  the  area  is  platted,  the  remainder  be- 
ing farm  lands,  is  unreasonable  and  invalid. 
JVhite  V.  St.  Louis  &*  S.  F.  R.  Co.,  44  Mo. 
App.  540. 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  329-333.         681 


329. two  miles.  —  An  ordinance 

that  trains  shall  not  be  run  across  streets  in 
the  compact  part  of  the  city  at  a  greater 
speed  than  two  miles  per  hour,  without 
sending  a  person  ahead  to  give  warning,  is 
not  in  conflict  with  N.  Y.  Act  of  1889,  ch. 
242,  providing  that  in  cities  of  less  than 
50,000  inhabitants  it  shall  not  be  lawful  for 
the  common  council  to  restrict  the  speed  of 
cars  to  less  than  thirty  miles  per  hour,  when 
gates  are  established,  where  there  is  no 
proof  that  such  city  has  less  than  50,000  in- 
habitants. Haywood  v.  New  York  C.  &*!/. 
R.  K.  Co.,  \iN.  V.  Supp.  177,  59  Hun  617, 
mem.,  35  N.  Y.  S.  R.  748 ;  affirmed  in  128  A''. 
Y.  596,  mem.,  38  N.  Y.  S.  R.  loii,  mem. 

330.  Actions  for  peualties.  —  One 
section  of  an  ordinance  of  a  city  incorpo- 
rated under  the  General  Incorporation  Law 
of  1867  was  as  follows :  "  That  it  shall  not 
be  lawful  for  any  railroad  company  to  run 
any  locomotive  or  cars  over  any  of  the  rail- 
road tracks  within  the  corporate  limits  of 
said  city  at  a  faster  rate  than  four  miles  per 
hour."  Another  section  provided  that "  any 
conductor,  engineer,  or  other  person  having 
control  of  any  engine,  car,  or  railroad  train, 
who  shall  violate  any  of  the  provisions  of 
this  ordinance,  shall,  upon  conviction  there- 
of before  the  mayor  of  said  city,  be  fined 
not  exceeding  twenty  dollars."  Held,  that 
in  a  complaint  in  the  mayor's  court  against 
an  engineer,  to  recover  a  penalty  of  him  for 
violating  the  ordinance,  reference  should  be 
made  to  both  of  said  sections  by  their  num- 
bers and  the  date  of  adoption,  and  a  com- 
plaint referring  only  to  the  former  section 
was  insufficient.  Wht'tson  v.  Franklin,  34 
Ind.  392. 

An  action  brought  by  a  municipal  corpo- 
ration to  enforce  a  penalty  for  the  violation 
of  an  ordinance  regulating  the  rate  of  speed 
at  which  trains  shall  be  run  through  the 
corporate  limits  is  not  a  criminal  proceeding, 
but  is  essentially  a  civil  action,  and  where  the 
provisions  of  the  ordinance  are  violated  by 
an  engineer  the  penalty  may  be  recovered 
in  an  action  against  the  company.  Ham- 
mond V.  New  York,  C.  <S-  St.  L.  R.  Co.,  5 
Ind.  App.  526,  31  N.  E.  Rep.  817.— Refer- 
ring TO  Hammond  v.  New  York,  C.  &  St. 
L.  R.  Co.,  126  Ind.  597. 

Where  a  company  is  sued  to  recover  pen- 
alties for  violating  an  crdinance,  and  the 
trial  court  gives  judgment  for  penalties  for 
two  violations,  as  to  one  of  which  there  is 
no  evidence,  the  court  on  appeal  will  modify 


the  judgment  by  reducing  it  to  but  one  pen< 
alty.  Buffalo  v.  New  York,  L.  £.&»  fV.  R. 
Co.,  54  N.  Y.  S.  R.  150,  23  A^.  Y.Supp.  303. 

331.  Defenses  to  actions  for  pen- 
alties.  —  A  prosecution  for  a  violation  of 
such  an  ordinance  cannot  be  defended  on 
the  ground  that  the  company  was  engaged 
in  carrying  the  mail  under  a  contract  with 
the  United  States,  and  was  required  by  such 
contract  to  transport  the  mail  within  a  pre- 
scribed time,  which  could  not  be  done  if  the 
towns  and  cities  through  which  'be  road  ran 
were  allowed  to  regulate  the  speed  of  trains 
in  passing  through  them.  Whitson  v. 
Franklin,  34  Ind.  392. 

A  company  violating  an  ordinance  by 
running  its  trains  at  a  rate  faster  than  is 
allowed  by  the  ordinance  cannot  set  up  as 
a  defense  that  the  officers  and  citizens  of 
the  city  have  never  enforced  such  ordinance, 
although  it  was  enacted  many  years  before. 
Cleveland,  C,  C.  &-I.  R.  Co.  v.  Harringtm, 
49  Am.  &*  Eng.  R.  Cas.  358,  131  Ind.  426,  30 
N.  E.  Rep.  37. 

It  is  no  defense  to  an  action  against  a 
company  for  a  penalty  under  an  ordinance 
restricting  speed  of  trains  that  the  acts  com- 
plained of  were  done  by  a  servant  of  the 
company  without  its  knowledge  or  consent 
and  against  its  express  orders.  Buffalo  v. 
New  York,  L.  E.  Sf  W.  R.  Co,,  54  N.  Y.  S. 
R.  150,  23  A';  Y.  Supp.  303. 


4.  Signals.*  S^nboards.    Lights.    Lookoutt. 
Flagmen. 

332.  Statutes  and  ordinances  re* 
quiring  beli  to  be  rung.  —  Under  Ala. 
Code  of  1886,  §  1 144,  the  engineer  of  a  train 
is  required  to  ring  the  bell,  or  blow  the 
whistle,  at  intervals,  "  on  entering  into  or 
passing  through  any  village,  town,  or  city  " ; 
but  under  former  statutes  (Code  of  1876,  § 
1699)  the  duty  extended  only  to  "the  cor- 
porate limits  of  any  city  or  town."  Carring- 
ton  v.  Louisville  &*  N.  R.  Co.,  41  Am.  &* 
Eng.  R.  Cas.  543,  88  Ala.  472,  6  So.  Rep.  910.. 

The  Georgia  statute  touching  the  ringing 
of  the  bell  of  a  locomotive  in  a  city,  town, 
or  village,  instead  of  sounding  the  whistle, 
is  confined  to  the  signaling  for  the  approach 
of  crossings.  It  is  not  unlawful  to  make 
by  whistling  proper  and  necessary  signals 

*See  also  Crossings,  Injuries  to  Persons, 

ETC,  AT,  91-163. 


I 
53, 


i!   r 


SS5 


683        STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  833-335. 


1   'i; 


r  H 


! 


of  approaching  a  station,  as  warning  to 
adjust  the  switches.  Akridge  v.  Atlanta  &* 
W.  P.  H.  Co.,  90  Ga.  232.  16  S.  E.  Rep.  81. 

Under  Wagn.  Mo.  St.  310,  §  38,  it  is  the 
duty  of  railroad  companies  to  ring  a  bell  in 
passing  through  cities,  and  not  merely  to 
sound  a  whistle.  Kennayde  v.  Pacific  R. 
Co.,  4$  Mo.  255. — Quoting  Newson  v.  New 
York  C.  R.  Co.,  29  N.  Y.  390;  Gordon  v. 
Grand  St.  &  N.  R.  Co..  40  Barb.  550.— Ap- 
plied IN  Donohue  v.  St.  Louis,  I.  M.  &  S. 
R.  Co..  28  Am.  &  Eng.  R.  Cas.  673,  91  Mo. 
357.  Distinguished  in  Zimmerman  v. 
Hannibal  &  St.  J.  R.  Co.,  2  Am.  &  Eng.  R. 
Cas.  191,  71  Mo.  476.  Followed  in  Tabor 
V.  Missouri  Valley  R.  Co.,  46  Mo.  353.  Re- 
viewed IN  Solen  V.  Virginia  &  T.  R.  Co., 
13  Nev.  106. 

Where  a  city  by  its  charter  is  empowered 
"  to  direct  the  use  and  regulate  the  speed  of 
locomotive  engines  in  said  city,  or  to  pre- 
vent or  prohibit  the  use  or  running  of  the 
same  within  the  city."  it  in  authorized  to 
enact  an  ordinance  prohibiting  the  running 
of  engines  or  cars  in  the  city  without  a  bell 
being  rung  before  starting,  and  all  the  time 
the  same  is  in  motion  in  the  city.  Texas 
&»  P.  R.  Co.  V.  Nehon,  50  Fed.  Rep.  814,  2 
U.  S.  App.  213,  I  C.  C.  A.  688. 

333.  Statutes  and  ordinances  for- 
bidding blowing  of  whistle.— Within 
the  corporate  limits  of  the  cities,  towns,  and 
villages  of  Georgia  it  is  not  lawful  for  rail- 
road compunies,  as  ttieir  trains  approach 
crossings  or  public  roadfi,  to  blow  their 
whistles,  buv  it  is  the  duty  of  engineers 
to  signal  their  approach  to  such  crossings 
or  public  roads  by  tolling  the  bell  of  the 
locomotive.  Georgia  R,  Co.  v.  Carr,  73 
Ga.  557. 

A  stature  which  requires  the  ringing  of  a 
bell  or  the  sounding  of  a  whistle  at  high- 
way crossings,  except  that  the  sounding  of 
the  whistle  is  not  to  apply  to  street  cross- 
ings in  cities,  does  not  prohibit  the  sound- 
ing of  the  whistle  in  a  citv.  Mayer  v.  New 
York  C.  6-  H.  R.  R.  Co.,  &  A^.  Y.  Supp.  461, 
29  N.  Y.  S.  R.  183,  55  Htift  608 ;  affirmed  in 
132  A';  Y.  579.  mem.,  30  N.  E.  Rep.  867. 

A  municipal  corporation  has  not  power 
to  suspend,  alter,  or  change  the  general 
statutes  of  the  state  regulating  the  run- 
ning of  railroad  trains,  under  its  charter 
authority  "  to  permit  and  regulate  the  lay- 
ing of  railroad  tracks  of  iron,  and  the 
passage  of  railroad  cars  through  the  taxing 
district,  and  to  remove  such  railroad  track 


if  it  obstructs  travel,  or  does  not  conform 
to  the  laws  of  the  taxing  district;  and  to 
make  all  suitable  and  proper  regulations  in 
regard  to  the  use  of  the  streets  for  street- 
cars, and  to  regulate  the  running  of  the 
same  so  as  to  prevent  injury  or  inconven- 
ience to  the  public."  Katzenberger  v.  Lawo, 
50  Am.&'Eng.  R,  CVif.443,  90  Tenn.  235,  16 
S.  W.  Rep.  611. 

Therefore  an  ordinance  of  such  munici- 
pality forbidding  the  necessary  blowing  of 
the  whistle  of  steam  engines  and  declaring 
it  a  misdemeanor  is  a  nullity.  Katzenberger 
V.  Lawo,  50  Am.  &*  Eng.  R  Cas.  443,  90 
Tenn.  235,  16  S.  W.  Rep.  611.— Distin- 
guishing Pennsylvania  Co.  v.  Hensil,  6 
Am.  &  Eng.  R.  Cas.  79,  70  Ind.  569. 

334.  What  railroads  are  within 
the  statute.  —  A  company  whose  trains 
are  operated  by  dummy  engines  is  a  railroad 
company  within  the  statutory  provisions 
requiring  a  whistle  to  be  sounded  or  a  bell 
rung  at  regular  stopping  places  (Ala.  Code, 
§  1 144).  so  far  at  least  as  its  road  is  outside 
of  city  limits;  and  a  failure  to  comply  with 
these  statutory  regulations  is  negligence 
per  se,  entitling  a  person  injured  to  dam- 
ages,  if  he  was  not  guilty  of  contributory 
negligence.  EnsUy  R.  Co.  v.  Che^vning,  50 
Am.  &*  Eng.  R.  Cas.  46,  93  Ala.  24.  9  So. 
Rep.  458.— Following  Birmingham  Min- 
eral  R.  Co.  v.  Jacobs.  92  Ala.  187. 

335.  To  what  places  the  require- 
ment to  give  signals  is  applicable.* 
— The  statutory  duty  imposed  on  an  engi- 
neer of  a  train  passing  through  a  city  or 
town  to  blow  a  whistle  or  ring  a  bell  at 
short  intervals  is  co-extensive  with  the 
corporate  limits  of  the  city  or  town  ;  but 
a  failure  to  perform  this  duty  is  negligence 
merely,  and  is  not  sufficient  to  overcome  a 
defense  of  contributory  negligence.  Savan- 
nah &*  W.  R.  Co.  V.  Mtadors,  95  Ala.  137, 
10  So.  Rep.  141. 

A  city  ordinance  requiring  a  man  to  be 
post<;d  on  the  front  of  a  locomotive  within 
municipal  limits,  regulating  the  rate  of 
speed,  and  requiring  a  bell  to  be  rung  when 
approaching  cross  streets,  is  not  applicable 
where  the  engine  is  running  at  night  in  a 
part  of  the  city  where  there  are  no  streets, 
which  is  swampy  and  uneven,  and  where 
there  are  no  lightsi.    Baltir.iore  &•  0.  R.  Co. 


*  Statutory  provisions  as  to  signals  relate  only 
to  safety  of  persons  at  crossings,  see  note,  15 
Am.  &  Eno.  R.  Cas.  459. 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  836,  337.        683 


V.  StaU,  19  Am.  &*  Eng.  R.  Cas.  83,  62  Md. 
479,  50  Am.  Rep.  233. 

The  term  "highway"  as  used  in  Miss. 
Code  of  1871,  §  2424,  requiring  railroad 
companies  to  erect  signboards  where  their 
tracks  cross  highways,  means  any  public 
road  in  the  country,  but  does  not  apply  to  a 
street  in  a  city  or  town.  Mobile  &*  O,  R. 
Co  V.  State,  51  Miss.  137. 

The  provision  of  the  Tennessee  Code 
that  "on  approaching  a  city  or  town,  the 
bell  or  whistle  shall  be  sounded  when  the 
train  is  at  the  distance  of  one  mile,  and  at 
short  intervals  until  it  reaches  the  depot  or 
station ;  and  on  leaving  a  town  or  city,  the 
bell  or  whistle  shall  be  sounded  '^*  -  n  the 
train  starts,  and  at  intervals  until  it  has 
left  the  corporate  limits,"  requires  the  bell 
or  whistle  to  be  sounded  only  when  ap- 
proaching incorporated  towns  and  not  when 
approaching  an  unincorporated  town.  Webb 
V.  East  Tenn.,  V.  &»  G.  R.  Co.,  42  Am. 
6*  Efig^.  R.  Cas.  44,  88  Tenn.  119,  12  S.  V/. 
Rep.  428. 

Texas  Rev.  St.,  art.  4231,  is  limited  ex- 
pressly to  public  roads.  And  it  and  article 
4232  are  independent  of  each  other,  and  re- 
late to  different  requirements  entirely,  and 
because  the  first-named  article  uses  the 
words  "  public  roads,"  it  does  not  follow 
that  the  words  "  any  roads "  used  in  the 
succeeding  article  must  be  construed  to 
signify  "any  public  roads."  In  the  one  the 
operation  of  it  is  restricted  to  public  roads ; 
in  the  other  there  is  no  such  i  striction. 
Art.  4232  applies  to  all  roads  that  are 
traveled  on  horseback  and  in  vehicles,  and 
which  were  so  used  at  the  time  of  the  con- 
struction of  the  railway.  International  &» 
G.  N.  R.  Co.  v.  Jordan,  {Tex.)  10  Am.  &» 
Eng.  R.  Cas.  301. 

A  road  opened  across  a  railroad  track, 
after  the  construction  of  the  railroad,  and 
without  being  established  as  a  public  road 
under  the  law,  will  not  impose  upon  the 
railroad  company  the  performance  of  the 
requirements  of  art.  4232.  International  &* 
G.  N.  R.  Co.  V.  Jordan,  {Tex.)  10  Am.  &* 
Eng.  R.  Cas.jpx. 

The  company,  however,  having  recog- 
nized the  road  as  a  road,  by  placing  and 
maintaining  a  crossing  for  it,  and  by  giving 
the  usual  signals  upon  approaching  it  with 
trains,  is  estopped  from  refusing  to  recog- 
nize it  as  such  a  road  as  the  law  contem- 
plates. International  &•  G.  N.  R.  Co.  v. 
Jordan,  (Tex.)  10  Am.  &*  Eng.  R.  Cas.  301. 


336.  Signboards.'*'  —  Miss.  Code  of 
1871,  §  2424,  is  unconstitutional  in  so  far  as 
it  gives  to  counties  the  fine  collected  from 
railroad  companies  for  failing  to  erect  sign- 
boards where  their  tracks  cross  highways. 
Such  fine  belongs  to  the  school  fund,  and 
the  state  board  of  education  is  the  proper 
party  to  bring  suit  for  violation  of  the 
statute.  Mobile  6-  O.  R.  Co.  v.  State.  $1 
Miss.  137.— Quoted  in  Tucker  v.  Duncan, 
4  Woods  (U.S.)  652. 

337.  Lights. — A  city  ordinance  which 
requires  a  company  to  keep  a  flagman  by 
day  and  a  red  lantern  by  night  at  a  street 
crossing,  when  the  company  has  only  a 
single  track,  over  which  only  its  usual 
trains  pass,  and  where  it  does  not  appear 
that  such  crossing  is  unusually  dangerous, 
or  more  so  than  ordinary  crossings,  is  not 
a  reasonable  requirement,  and  is  therefore 
within  the  constitutional  limitations  on  the 
exercise  of  the  police  power.  Toledo,  W. 
&*  W.  R.  Co.  V.  Jacksonville,  67  ///.  37.— 
Revie'VED  in  Toronto  v.  Toronto  St.  R. 
Co.,  15  Ont.  App.  30. 

A  red  lantern  on  the  corner  of  a  tender 
attached  to  a  backing  locomotive  is  not  a 
sufficient  compliance  with  a  city  ordinance 
requiring  locomotives  to  carry  "a  brilliant 
and  conspicuous  light  on  the  front  end." 
Chicago  &*  N.  W.  R.  Co.  v.  Trayes,  33  ///. 
App.  307. 

The  power  of  police  regulation  is  vested 
in  the  legislature,  and,  in  the  exercise  of  this 
power,  companies  may  constitutionally  be 
required  to  light  such  portions  of  their 
railways  as  are  within  a  city  or  incorporated 
village.  Cincinnati,  H.  &•  D.  R,  Co.  v. 
Sullivan,  32  Ohio  St.  152.— Quoting  Thorpe 
V.  Rutland  A  B.  R.  Co.,  27  Vt.  149. 

The  provision  of  Ohio  Act  of  May  7, 
1869,  authorizing  city  and  village  councils 
to  require  railroad  companies  to  light  such 
portions  of  their  roads  as  are  within  the 
municipal  limits,  is  constitutional;  and  the 
expense  to  the  municipality  of  such  light- 
ing, where  the  company  fails  to  do  it,  may 
be  assessed  and  declared  a  lien  on  any 
real  estate  of  the  company  within  the  mu- 
nicipality. Cincinnati,  H.  &*  D.  R.  Co.  v. 
Sullivan,  32  Ohio  St.  152. 

The  liability  of  a  company  to  pay  such 
expense  can  only  be  enforced  by  suit  or 

•See  also  Crossings,  Injuries  to  Persons, 

ETC.,  AT.  60-62. 

Liability  of  company  for  failing  to  erect  sign- 
boards, see  note,  23  Am.  &  Eng.  R.  Cas.  33g. 


i     Is 


(  ; 


684       STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  338-341. 


»      D 


action,  or,  in  the  language  of  the  Constitu- 
tion, "by  due  course  of  law."  It  is  not  a 
tax,  or  an  assessment  in  the  nature  of  a  tax 
for  local  improvements,  and  cannot  be  sum- 
marily placed  upon  the  county  duplicate  and 
collected  as  a  tax  or  assessment  proper. 
Cincinnati,  H.  &*  D.  R.  Co.  v.  Sullivan,  32 
Ohio  St.  15a. 

338.  Lookouts.'*'— Though  it  is  unlaw- 
ful for  one  not  connected  with  a  railroad  to 
walk  upon  its  tracks,  and  it  is  presumed 
that  every  one  will  obey  the  law,  yet  this 
will  not  relieve  a  railroad  corporation  from 
the  duty  of  keeping  a  careful  lookout  while 
running  its  trains  upon  the  streets  of  a  city. 
Frick  v.  St.  Louis,  K.  C.  &*  N.  R.  Co.,  5 
Mo.  App.  435.  —  Distinguishing  Isabel 
V.  Hannibal  &  St.  J.  R.  Co.,  60  Mo.  482; 
Maher  v.  Atlantic  &  P.  R.  Co.,  64  Mo.  276. 
—  Distinguished  in  O'Donncll  v.  Mis- 
souri Pac.  R.  Co.,  7  Mo.  App.  190. 

330.  on  rear  eud  of  backingr 

train.  —  A  city  ordinance  requiring  a 
watchman  to  be  stationed  on  the  rear  end 
of  ti.tins  running  backward  through  a  city, 
in  order  to  avoid  accidents,  does  not  re- 
quire the  watchman  to  stop  the  train  or 
sound  a  warning  when  he  has  reason  to  be- 
lieve that  the  person  in  the  way  of  the  train 
can  and  does  see  it  approaching,  and  is  in  a 
situation  to  avoid  danger  by  the  exercise  of 
his  own  volition ;  and  the  failure  of  the 
watchman  so  to  act  under  such  circum- 
stances does  not  charge  the  company  with 
negligence.  Cincinnati,  I.,  St.  L.  &*  C.  R.  Co, 
V.  Long,  31  Am.  &*  Eng.  R.  Cas.  138,  112 
Ind.  166,  II  West.  Rep.  328, 1 3  A^.  ^.  Ref>. 659. 

A  city  ordinance  required  that  when  a 
lor  ••  ..f  engine  is  in  use  within  the 
li    Wf  r\*Y  a  man  should  be  required 

'  -'  i  fiii  'y  ont  of  the  locomotive  when 
jir.inf^  /ov/ai.'i.  and  on  the  tender  when 
gnir -''  '.".'.»■  7  not  more  than  twelve 
inches  .lodi  tin  bed  of  the  road.  It  was 
found  to  be  unsafe  to  place  a  man  in  the 
position  required  by  the  ordinance  upon  an 
enp^ine  of  modern  construction.  Held,  that 
the  company  would  not  be  guilty  of  negli- 
gence for  not  dning  that  which  would 
endanger  the  life  of  the  employ^.  Balti- 
more &*  O.  R.  Co.  V.  Mali,  28  Am.  &*  Eng. 
R.  Cas.  628,  66  Md.  53.  5  Atl.  Rep.  87. 

An  ordinance  requiring  a  man  to  be 
stationed  on  a  backing  train  to  give  danger 


*See  also  Crossings,  Injuries  to  Persons, 
KTC.,  AT,  164-107;  Negligence,  25. 


signals  does  not  apply  where  the  employes 
are  simply  engaged  in  setting  cars  in  a  yard. 
Rafferty  v.  Missouri  Pac.  R.  Co.,  91  Mo.  33, 
3  S.  W.  Rep.  393. 

Defendant  company  was  required  by  law 
to  station  a  man  on  the  last  car  of  every  train 
moving  reversely  in  any  town,  to  warn  per- 
sons standing  on  or  crossing  the  track  of 
the  approach  of  the  train.  Held,  that  de- 
fendant did  not  comply  with  this  direction 
by  having  a  man  at  the  front  end  of  the 
last  car,  where  he  could  not  see  persons 
crossing  the  track.  Levoy  v.  Midland  R. 
Co.,  15  Am.&'Eng.  R.  Cas.  478,  3  Ont.  623. 

340.  Flagmen.* — It  is  error  to  submit 
to  the  jury  whether  there  was  a  valid  or- 
dinance in  a  city  requiring  railroad  compa- 
nies to  keep  a  flagman  at  railroad  crossings, 
whose  duty  it  was  to  notify  and  warn  per- 
sons about  to  pass  over  such  crossings  of 
approaching  trains,  as  it  leaves  to  the  jury 
matters  of  law  as  well  as  of  fact.  Chicago, 
R.  I.  &•  P.  R.  Co.  V.  /ones,  13  ///.  App.  634. 

Under  Iowa  Laws  of  1880,  ch.  189,  §  i, 
giving  to  mayors  of  cities  of  the  second 
class  exclusive  jurisdiction  of  violations  of 
city  ordinances,  the  district  court  has  no 
jurisdiction  of  an  action  against  a  company 
for  violating  an  ordinance  requiring  rail- 
roads to  keep  certain  flagmen  in  the  city. 
Lansing  v.  Chicago,  M.  &»  St.  P.  R.  C^.,  85 
Iowa  215,  52  N.  W.  Rep.  195. 

The  charter  of  Long  Island  City  (Laws  of 
1871,  ch.  461)  gives  to  its  common  council 
power  to  regulate  the  use  of  streets  by 
vehicles  and  railways,  with  the  reservation 
that  it  shall  have  no  power  to  prohibit  or 
control  the  use  of  steam  power  on  any  rail- 
road from  any  part  of  Long  Island  to  the 
East  river,  but  making  it  the  special  duty 
of  companies  to  furnish  suitable  guards  or 
signals  at  street  crossings.  Held,  that  the 
common  council  has  no  power  to  make  and 
enforce  an  ordinance  requiring  a  company 
to  place  a  flagman  at  every  street  crossed 
by  its  track.  Long  Island  City  v.  Long  Isl- 
and R.  Co.,  79  N.  V.  561 ;  affirming  8 
Hun  58. 

5.    Repairs.     Paving.     Local  Assessments,^ 

341.  California. — The  right  of  a  com- 
pany to  lay  its  tracks  through  the  streets  of 

*  See  also  Crossings,  Injuries  to  Persons, 
ETC,  AT,  63-84. 

f  Assessment  on  railways  for  local  Improve- 
ments, see  notes,  13  Am.  &  Eng.  R.  Cas.  417  ; 
7  Id.  336. 


•f 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  342. 


685 


a  city,  and  to  run  its  cars  thereon,  is  an  in- 
terest in  the  land,  and  is  local— fixed  to  the 
particular  land  and  particular  street — and 
this  property  may  be  enhanced  in  value  by 
a  proposed  improvement  of  a  street.  Ap- 
peal of  North  Beach  &* M.  R.  Co..  32  Cal.  499. 

The  interest  or  easement  of  a  railroad 
will  be  benefited  by  the  widening  of  a  street 
on  which  its  line  runs,  when  it  is  probable 
that  by  reason  of  the  increased  traffic,  travel, 
and  business  upon  such  street  resulting  from 
the  improvement  a  greater  number  of  peo- 
pie  will  ride  upon  its  cars.  Appeal  of  North 
Beach  &*  M.  R.  Co.,  32  Cal.  499. 

A  company  whose  track  runs  along  ii 
street  which  it  is  proposed  to  widen  will  be 
assessed  in  common  with  other  property 
owners,  according  to  the  ratio  of  the  bene- 
fits received,  and  a  statute  providiiig  for 
th's  method  of  assessment  upo:i  the  rail- 
road and  other  owners  thus  benefited  is 
consiitutional.  (Sanderson  and  Rhodes,  JJ., 
dissenting.)  Appeal  of  North  Beach  &•  M. 
R.  Co.,  32  Cal.  499.— Distinguishing  State 
V.  Newark,  27  N.  J.  L.  186. 

It  will  be  presumed  that  commissioners 
appointed  to  assess  against  a  railroad  and 
other  landowners  the  cost  of  a  proposed 
improvement  upon  a  street  have  adopted  a 
correct  construction  of  the  statute  in  regard 
to  the  rule  of  apportionment,  and  error  must 
be  affirmatively  shown.  Appeal  of  North 
Beach  6-  M.  R.  Co.,  32  Cal.  499. 

An  act  providing  for  assessment  upon  the 
property  of  a  railroad  for  the  cost  of  an  im- 
provement of  a  street  is  not  unconstitutional 
because  it  provides  that  the  amount  shall 
be  a  lien  upon  all  the  property  of  the  rail- 
road within  the  city  and  county.  Appeal  of 
North  Beach  &•  M.  R.  Co.,  32  Cal.  499. 

Under  Cal.  Civil  Code,  §  498,  by  which  a 
company  is  required  to  keep  in  repair  that 
portion  of  a  street  over  which  its  track  is 
laid,  the  company  cannot  be  assessed  with 
a  portion  of  the  expense  incurred  for  the 
improvement  of  the  street  under  a  contract 
between  the  city  and  contractors.  Mc  Verry 
V.  Boyd,  89  Cal.  304,  26  Pac.  Rep.  885. 

342.  Connecticut.— Where  a  street  is 
laid  out  along  a  railroad  track,  and  lapping 
a  little  on  the  company's  right  of  way,  the 
company  is  not  liable  for  an  assessment  for 
benefits,  where  such  assessment  is  based 
upon  the  fact  that  the  opening  of  the  street 
and  the  removal  of  obstructions  to  vision 
along  the  right  of  way  will  give  a  better 
view  along  the  track,  and  enable  the  com- 


pany to  run  trains  faster,  with  less  danger 
of  accidents.  Bridgeport  v.  New  York  &* 
N.  H.  R.  Co.,  36  Conn.  255. 

An  assessment  upon  the  franchise  of  a 
railroad  company  is  legal  only  when 
grounded  upon  a  direct  and  immediate 
benefit,  such  as  to  increase  the  value  of  the 
company's  properly  i-nd  stock.  The  fran- 
chise having  no  assignable  or  marketable 
value,  there  is  no  other  mode  in  which  its 
value  can  be  increased.  Bridgeport  v.  New 
York  &*  N.  H.  R.  Co.,  36  Conn.  255.— Fol- 
lowed IN  St.  Paul  Union  Depot  Co.  v.  St. 
Paul,  30  Minn.  359.  Reviewed  in  New 
York,  N.  H.  &  H.  R.  Co.  v.  New  Britain,  13 
Am.  &  Eng.  R.  Cas.  400,  49  Conn.  40. 

A  company  in  front  of  whose  passenger 
station  and  along  whose  track  a  street  has 
been  paved  by  a  city  is  not  liable  to  an 
assessment  for  a  portion  of  the  expense, 
under  a  provision  in  the  city  charter  au- 
thorizing the  city  to  assess  the  expense  of 
street  improvements  upon  property  "spe- 
cially benefited."  Such  assessment  cannot 
be  justified  on  the  ground  that  access  to 
the  station  is  made  more  easy,  nor  on  the 
ground  that  the  land  occupied  by  the  com- 
pany has  been  made  more  valuable.  New 
York  &»  N.  H.  R.  Co.  v.  New  Haven,  42 
Conn.  279, 10  Am.  Ry.  Rep.  162.— Reviewed 
in  New  York,  N.  H.  &  H.  R.  Co.  v.  New 
Britain,  13  Am.  &  Eng.  R.  Cas.  400,  49 
Conn.  40. 

Land  owned  by  a  company  in  fee  and 
with  no  restriction  upon  its  use,  and  which 
is  occupied  only  as  a  place  for  running  ofl 
and  leaving  freight  cars,  but  which  is  well 
situated  for  mechanical  and  manufacturing 
purposes,  is  liable  to  a  city  assessment  for 
a  public  sewer  by  which  it  is  benefited. 
New  York,  N.  H.  6-  H.  R.  Co.  v.  New  Brit- 
ain, 1 3  Am.  &*  Eng.  R.  Cas.  i^fxt,  49  Conn. 
40.  —  Quoting  Park  Ecclesiastical  Soc.  v. 
Hartford,  47  Conn.  91.  Reviewing  Clapp 
V.  Hartford,  35  Conn.  66;  Bridgeport  v. 
New  York  &  N.  H.  R.  Co.,  36  Conn.  255; 
New  York  &  N.  H.  R.  Co.  v.  New  Haven, 
42  Conn.  279. 

It  was  found  by  a  committee  that  the 
land  would  "  in  all  probability  "  continue  to 
be  held  and  used  for  railroad  freight  pur- 
poses. Held,  that  a  mere  probability  was 
not  sufficient  to  affect  the  case,  and  that  if  a 
degree  of  probability  which  amounted  to 
a  practical  certainty  was  intended,  the  facts 
on  which  the  conclusion  was  based  should 
have  been  found,  that  the  court  might  lee 


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686        STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  342a,  343. 


on  what  it  rested.  Ntw  York,  N.  H.  &•  If. 
R.  Co.  V.  New  Britain,  13  Am.  &•  Eng.  R. 
Cas.  400,  49  Conn,  40. 

342a.  Georgia.— Where  a  railroad  has, 
thirty  years  before,  without  lawful  authority, 
changed  a  public  road,  built  a  bridge,  and 
kept  the  same  in  repair,  and  the  public 
has  abandoned  the  old  road  and  used  the 
new  one,  the  company  nevertheless  is  under 
no  implied  contract  with  the  county  that 
it  will  keep  such  road  and  bridge  in  re< 
pair  any  more  than  a  private  individual 
would  be  in  a  like  case.  Brookins  v.  Central 
R,  &*  B.  Co.,  48  Ga.  523,  II  Am.  Ry.  Rep. 
383.— Distinguished  in  Dyer  County  v. 
Chesapeake,  O.  &  S.  W.  R.  Co.,  38  Am.  & 
Eng.  R.  Cas.  676,  87  Tenn.  712,  11  S.  W. 

Rep-  943. 

A  company  using  a  public  street  of  a  city 
as  its  right  of  way  is  bound  to  repair  street 
crossings.  Western  &*  A.  R.  Co.  v.  Atlanta, 
19  Am.  &*  Eng.  R.  Cas.  233,  74  Ga.  774. 

A  city  ordinance  authorizing  the  con- 
struction  of  a  railway  in  a  street  contained, 
with  many  other  mutual  stipulations,  a 
clause  as  follows :  "  In  the  event  of  the 
paving  by  the  city  of  the  whole  or  any 
portion  of  the  street  used  by  such  railway, 
the  portion  of  the  track  between  the  rails 
shall  be  paved  and  kept  in  good  order  and 
thorough  repair  by  the  company  at  its  own 
expense  and  cost."  These  stipulations  being 
assented  to  by  the  railroad  company,  and 
the  railway  being  constructed  thereunder, 
the  ordinance  is  a  contract  between  the  city 
and  the  railway  company.  Coast  Line  R. 
Co.  v.  Mayor,  etc.,  of  Savannah,  30  Fed. 
Rep.  646.— Followed  in  Western  P.  &  S. 
Co.  V.  Citizens'  St.  R.  Co.,  46  Am.  &  Eng. 
R.  Cas.  176,  128  Ind.  525. 

343.  Illinois.  —  111.  Act  of  1879,  §  2, 
relating  to  special  assessments  or  taxes  by 
the  park  commissioners  for  the  improve- 
ment of  certain  streets,  and  authorizing 
such  assessments  or  special  taxes  to  be  as- 
sessed "upon  contiguous  property  abutting 
on  such  streets  or  avenues,"  does  not  apply 
to  a  railroad  right  of  way  in  a  street.  South 
Park  Com'rs  v.  Chicago,  B.  &»  Q.  R.  Co.,  13 
Am.  6-  Eng.  R.  Cas.  415.  107  ///.  105.  —  Ex- 
plained in  Chicago  &  N.  W.  R.  Co.  v. 
People  ex  rel.,  31  Am.  &  Eng.  R.  Cas.  487, 
120  111.  104. 

There  is  no  constitutional  or  statutory 
exemption  from  the  assessing  of  railway 
property,  if  specially  benefited,  for  park  or 
boulevard  purposes,    Chicago  &*  N,  W,  R, 


Co.  V.  People  ex  rel.,  31  Am  &*  Et^.  R.  Cat. 
487,  120  ///.  104,  II  N.  E.  Rep.  418.— Ex- 
plaining South  Park  Com'rs  v.  Chicago, 
B.  &  Q.  R.  Co..  107  111.  105. 

A  city  council  has,  by  law,  the  power  to 
widen,  extend,  and  further  to  open  the  cross- 
ing of  a  public  street  under  a  railway  track, 
but  has  no  power,  by  special  taxation  or 
otherwise,  to  provide  for  the  building  of  a 
railroad  bridge  over  a  street  crossing  as  a 
local  improvement.  Bloomington  v.  Chicago 
&-  A.  R.  Co.,  134  ///.  451,  26  A^.  E.  Rep.  366. 

Where  an  ordinance  fails  to  show  any 
proper  case  for  special  taxation  of  con- 
tiguous property,  or  it  is  grossly  unreason- 
able, unjust,  and  oppressive,  that  may  be 
shown  in  defense  of  an  application  to  con- 
firm a  levy  of  special  taxes.  Bloomington  v. 
Chicago  &*  A.  R.  Co.,  134  ///.  451,  26  JV,  E. 
Rep.  366. 

A  city  council  has  the  power,  under  111. 
Rev.  St.  ch.  24,  art.  5,  §  62,  to  construct  a 
viaduct  in  a  public  street  by  special  assess- 
ment. Louisville  &•  N.  R.  Co.  v.  East  St. 
Louis,  134  ///.  656,  21  N.  E.  Rep.  962. 

The  fact  that  a  viaduct  over  railway  tracka 
in  a  street  is  proposed  to  be  extended  acrosa 
a  creek  will  not  necessarily  render  invalid 
a  proceeding  to  build  the  same  by  special 
assessment.  Louisville  &*  N.  R.  Co.  v. 
East  St.  Louis,  134  ///.  656, 25  N.  E.  Rep.  962. 

A  mere  contract  right  in  one  company  to 
run  its  trains  over  the  track  of  another  com- 
pany, the  right  being  held  subject  to  being 
determined  upon  notice,  does  not  invest  the 
former  company  with  such  ownership  in 
the  right  of  way  as  can  be  subjected  to 
special  assessment.  Louisville  &*  N.  R.  Co. 
v.  East  St.  Louis,  134  ///.  656,  25  N.  E. 
Rep.  962. 

Commissioners,  appointed  to  assess  the 
benefits  to  accrue  from  the  construction  of 
a  viaduct  in  a  public  street,  assessed  to  a 
railway  company  "  part  of  blocks  8  and  9, 
and  right  of  way  across  Broadway."  The 
blocks  consisted  of  lots.  On  application  to 
confirm  the  assessment,  the  report  of  the 
commissioners  showing  the  assessments  was 
offered  in  evidence  and  objected  to  on  the 
ground  that  the  benefits  had  not  been  as- 
sessed to  each  of  the  lots  and  right  of  way 
separately.  Held,  that  the  objection  was 
well  taken.  Louisville  &•  N.  R.  Co.  v.  East 
St.  Louis,  134  ///.  6s6,  2S  N.  E.  Rep.  962. 

The  fact  that  a  railway  company  to  whom 
the  right  is  granted  to  lay  and  use  tracks  in 
a  street  has  agreed  so  to  grade  the  street 


\\ 


STREETS  AND  HIGHWAYS   (RAILWAYS   IN),  344-347.        687 


and  lay  its  tracks  that  carriages,  wagons, 
etc.,  may  conveniently  cross  the  same,  does 
not  deprive  the  city  of  the  power,  nor  ab<- 
solve  it  from  the  duty,  to  keep  the  street 
in  a  safe  and  proper  condition,  and  can- 
not be  urged  by  the  company  as  an  objec- 
tion to  a  special  assessment  to  improve 
such  street.  Chicago,  B.  «S*  Q.  Jt.  Co.  v. 
Quincy,  139  ///.  355,  28  N.  E.  Rep.  1069. 

A  city  does  not  lose  or  surrender  its 
power  to  pave  or  otherwise  to  improve  one 
of  its  streets  by  allowing  a  railway  company, 
by  tacit  consent  or  by  ordinance,  to  lay 
down  one  or  more  tracks,  and  to  use  such 
tracks  for  a  series  of  years,  in  running 
cars  over  the  same.  Chicago,  B,  &*  Q,  R. 
Co.  v.  Quincy,  136  ///.  563,  27  N.  E.  Rep.  192. 

And  such  city  council  may  require  such 
street  to  be  paved  whenever  it  may  be 
deemed  proper,  notwithstanding  such  im- 
provement may  temporarily  interfere  with 
the  business  of  the  company.  Chicago,  B, 
&*  Q.  R.  Co.  V.  Quincy,  136  ///.  563, 27  N.  E. 
Rep.  192. 

A  city  block  belonging  to  a  railroad  com- 
pany was  assessed  for  street  improvements 
in  two  parts,  one  part  being  assessed 
higher  than  the  other,  the  right  of  way  of 
the  company  being  accepted.  When  the 
report  was  filed  in  court  for  confirmation, 
the  county  judge  modified  the  assessment, 
making  it  entire  on  the  block,  but  in  a  sum 
equal  to  the  aggregate  of  the  assessments 
on  the  two  parts.  Held,  that  there  was 
nothing  in  this  to  show  that  the  right  of 
way  was  assessed.  Chicago,  R.  I.  &*  P.  R, 
Co.  v.  Chicago,  (III.)  27  A^.  E.  Rep.  926 ;  see 
also  139  ///.  573,  28  N.  E.  Rep.  1108. 

An  assessment  of  a  city  block  for  street 
improvements  may  be  made  on  two  parts,  if 
the  entire  amount  does  not  exceed  the  bene- 
fits received  by  the  block  as  a  whole.  Chi- 
cago, R.  I.  <S-  P.  R.  Co.  V.  Chicago,  (III.)  27 
N.  E.  Rep.  926.— Distinguishing  Warren 
V.  Chicago,  118  111.  329,  9  N.  E.  Rep.  883. 

A  statute  authorizing  assessments  upon 
abutting  property  for  street  improvements 
does  not  apply  to  a  railroad  right  of  way 
and  track  which  cross  a  street.  Such  right 
of  way  and  track  are  not  abutting  property. 
Chicago,  B.  <S-  Q.  R.  Co.  v.  South  Pari 
Com' rs,  II  III.  App.  $62. 

344.  Indiana.  —  Where  a  company 
occupies  and  uses  one  side  of  a  street  of 
a  town  for  a  right  of  way,  and  owns  real 
estate  contiguous  to  said  side,  said  real 
estate  is  liable  to  assessment  for  the  im- 


provement of  the  street.  Indianapolis,  P. 
&*  C.  R.  Co.  v.  Ross,  47  Ind.  25. 

The  track  of  a  railroad  which  borders  on 
a  street  is  properly  assessable  for  its  due 
proportion  of  the  cost  of  improvement  of 
such  street  under  an  ordina'^ce  of  the  city. 
Peru  6-  /.  R.  Co.  v.  Hanna,  68  Ind.  562.— 
Reviewed  in  Re  Cedar  Park,  i  How.  Pr. 
N.  S.  (N.  Y.)  257. 

346.  Iowa. — A  company  having  a  right 
to  lay  its  track  on  a  lot,  but  not  having  title 
to  the  lot,  cannot  be  held  liable  for  assess* 
ments  levied  on  abutting  owners  for  the 
paving  of  the  adjoining  street.  Muscatine 
V.  Chicago,  R.  I.  &*  P.  R.  Co.,  88  Iowa  291, 
55  A^.  IV.  Rep.  100. 

346.  Kentucky.  —  Where  a  city  has 
levied  an  assessment  upon  all  the  real  estate 
lying  upon  a  certain  street,  for  the  purpose 
of  improving  the  street,  a  lot  upon  the 
street  owned  by  a  railroad  company  is  sub- 
ject to  the  assessment.  The  fact  that  the  lot 
is  the  property  of  a  railway  company,  and  is 
used  for  railroad  purposes,  furnishes  no 
reason  why  it  should  be  exempted  from 
assessment.  Ludlow  v.  Cincinnati  Southern 
R.  Co.,  7  Am.  6-  Eng.  R.  Cas.  231, 78  Ky.  357. 
—Distinguishing  Phillips  w.  Winslow,  18 
B.  Mon.  431  ;  Applegate  v.  Ernst,  3  Bush 
648;  Louisville  &  N.  R.  Co.  v.  Warren 
County,  5  Bush  243 ;  Elizabethtown  &  P.  R. 
Co.  V.  Elizabethtown,  12  Bush  233 ;  Graham 
V.  Mt.  Sterling  Coalroad  Co.,  14  Bush  425. 
Reviewing  Chicago  v.  Baer,  41  111.  306; 
Northern  Ind.  R.  Co.  v.  Connelly,  10  Ohio 
St.  164;  Burlington  &  M.  R.  R.  Co.  v. 
Spearman,  12  Iowa  112. 

When  a  company  lays  its  track  over  a 
public  highway  it  is  necessary  that  the  com- 
pany shall  have  paramount  control  over  its 
track  and  the  right  to  regulate  the  repairs 
necessary  to  the  use  of  the  public  in  cross- 
ing, and  it  is  therefore  responsible  to  the 
public  as  well  as  to  individuals  for  a  failure 
to  keep  such  crossing  in  repair.  Paducah 
6*  E.  R.  Co.  V.  Com.,  10  Am.  &*  Eng.  R.  Cas. 
318,  80  Ky.  147. 

347.  Louisiana. — A  municipal  corpo- 
ration vested  by  law  with  control  over  its 
streets  is  bound  to  keep  the  same  in  good 
order  and  condition,  sufficiently  safe  to  pre- 
vent injury  to  travelers  thereon.  It  may 
grant  to  a  company  the  privilege  of  building 
its  tracks  and  running  its  cars  thereon,  with 
the  obligation  of  keeping  them  in  proper 
order  and  condition.  Such  grant  does  not, 
however,  exonerate  the  city  from  the  duty 


1   ; 


V?>' 


'U 


IJ  5 


■i  .  ;1 


688 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  348-302. 


which  it  ii  bound  primarily  to  fill.  Inde- 
pendent of  its  contract,  auch  company  is 
bound  to  Iceep  its  own  road,  tracks,  and  rails 
in  proper  condition,  dint  v.  Crescent  City 
R,  Co.,  43  La.  Ann.  yrj,  9  So.  Rep,  122; 
former  appeal  41  La,  Ann.  1031,  6  So, 
Rep.  851. 

348.  Massachusetts.  —  If  a  company 
constructs  its  road  across  an  existing  high- 
way, and  the  provision  made  at  the  outset  by 
order  of  the  county  commissioners  for  drain- 
ing the  way  after  a  time  becomes  ineflective, 
the  county  commissioners  have  the  power, 
under  Mass.  Pub.  St.  ch.  112,  §§  135,  136,  to 
make  a  new  order  for  the  cfTectual  drainage 
of  the  way  at  the  expense  of  the  company, 
and  by  proceedings  in  equity  in  the  supreme 
judicial  court  to  have  the  same  enforced. 
Dickinson  v.  New  Haven  &*  N.  R,  Co,,  155 
Mass.  16,  34  A^.  E.  Rep,  334. 

349.  Michigan.  —  The  right  to  use  a 
public  highway,  even  though  in  a  dangerous 
condition,  cannot  be  abridged  by  the  neglect 
to  repair  it.  Thayer  v.  Flint  &>  P,  M,  R. 
Co.,  93  Mich,  150,  53  N,  W.  Rep,  216.— Fol- 
lowing Maltby  v.  Chicago  &  W.  M.  R.  Co., 
52  Mich.  108. 

Where  a  company,  acting  under  a  notifi- 
cation from  the  common  council  of  a  village, 
constructs  a  sidewalk  across  its  right  of  way 
at  a  street  crossing,  and  for  years  assumes 
to  keep  the  walk  in  repair,  it  becomes  its 
duty  to  keep  the  walk  in  a  reasonably  safe 
condition  for  public  travel.  Retan  v.  Lake 
Shore  &•  M.  S.  R,  Co.,  94  Mich.  146,  53 
N,  W.  Rep.  1094.— Approving  Spooner  v. 
Delaware,  L.  &  W.  R.  Co.,  115  N.  Y.  22. 
Quoting  Stewart  v.  Cincinnati,  W  &  M. 
R.  Co.,  89  Mich.  328. 

350.  Minnesota. — Where  the  charter 
of  a  company  gives  it  a  right  to  construct 
its  road  upon  and  along  any  highway,  road, 
or  street,  if  necessary,  but  requires  the 
company  to  "  put  such  highway,"  etc.,  "  in 
such  condition  and  state  of  repair  as  not  to 
impair  or  interfere  with  its  free  and  proper 
use,"  the  requirement  is  a  continuing  one, 
so  that  the  company  may  at  all  times  be 
required  to  keep  the  highway  in  the  speci- 
fied condition  and  state  of  repair  so  far  as 
consistent  with  the  presence  of  the  railroad 
upon  it.  Wayzata  v.  Great  Northern  R. 
Co.,  50  Minn.  438,  52  N.  W.  Rep.  913. 

The  possession  of  a  company  entering 
under  such  a  right  given  in  its  charter,  no 
other  claim  of  right  appearing,  and  there 
being  no  exclusion  of  the  public  use,  is  con- 


sistent with,  and  not  hostile  to,  the  public 
right,  and  is  not  adverse.  Waynata  v.  Grr  U 
Northern  R.  Co.,  $0  Minn.  438,  52  A^.  tK 
Rep,  913. 

But  where  the  charter  does  not  authorize 
the  construction  of  buildings  on  the  high- 
way, the  occupation  of  parts  of  the  highway 
with  such  buildings  in  exclusion  of  the 
public  use  may  be  adverse  to  the  public 
right,  and  may  ripen  into  title  by  adverse 
possession.  Wayzata  v.  Great  Northern  R. 
Co,,  so  Minn,  438,  52  A^.  IV,  Rep.  913. 

351.  New  Jersey.  —  Where  the  use 
of  a  street  by  a  railroad  company  is  not 
exclusive,  it  still  remains  a  public  street, 
and  the  cost  of  improving  it  may  be  assessed 
against  an  abutting  property  owner.  State 
(Felix,  Pros.)  v.  Atlantic  City  Council,  34  N. 
J,  L.  99. 

An  assessment  for  an  improvement  in 
grading  a  street  cannot  be  sustained  when 
made  according  to  a  statute  fixing  a  stand- 
ard otherwise  than  actual  benefits,  and  lim- 
ited only  by  political  territorial  divisions, 
if  the  legislature  choose  to  make  any  such 
limitation.  State  (Delaware,  L.  &*  JV.  R. 
Co.,  Pros.)  V.  Passaic,  yj  N.  J.  L,  137; 
affirmed  in  37  A'^.  /.  L.  538. 

An  assessment  on  a  company,  for  paving 
a  street  crossing  its  railroad,  was  set  aside 
on  the  ground  that  the  company  derived  no 
benefit  therefrom  in  the  improvement  of  its 
lands  for  the  uses  to  which  they  were  ap- 
propriated. State  (New  Jersey  R.  &*  T.  Co., 
Pros.)  V.  Elizabeth,  37  N,J.  L.  330. — Fol- 
lowing State  V.  Mayor,  etc.,  of  Newark, 
27  N.  J.  L.  186  ;  State  v.  Jersey  City,  36  N.  J. 
L.  56. 

The  effect  of  N.  J.  Act  of  1873,  §  9,  for  the 
taxation  of  railroads,  is  to  subject  the  prop- 
erty of  all  railroad  corporations  of  a  charac- 
ter to  be  benefited  by  local  improvements 
to  special  assessments  for  the  cost  of  such 
improvements,  when  the  public  work  bene- 
fits tl  e  property  in  the  uses  to  which  it  is 
applied.  State  (New  Jersey  Midland  R.  Co., 
Pros.)  v.  Mayor,  etc.,  of  Jersey  City,  i  Am, 
&*  Eng.  R.  Cas.  406,  42  N.J.  L.  97.— Fol- 
lowed IN  State  (Patterson  &  H.  R.  R.  Co., 
Pros.)  V.  Passaic,  54  N.  J.  L.  340. 

352.  New  York.— Property  which  can- 
not be  used  except  for  the  specific  public 
purpose  of  a  railroad  cannot  be  benefited 
by  laying  a  street  across  it.  New  York  &* 
H.  R,  Co.  v.  Morrisania,  7  Hun  (N,  Y.)  652. 

A  municipality  has  no  power  to  sell  the 
entire  roadbed  of  a  railroad  company,  nor 


^1^ 


STREETS  AND   HIGHWAYS  (RAILWAYS   IN),  953,  354. 


689 


any  lands  necessarily  used  by  it  for  the  pur- 
poses of  its  franchise,  under  nn  assessment, 
under  N,  Y.  Act  of  1864.  ch.  277,  §  59,  for 
opening  a  street  across  tlie  traci<.  New 
York  &*  H,  R.  Co.  v.  Morrisania,  7  Hun 
{N.  y.)6s2. 

Where  a  railroad  track  is  laid  along  an 
avenue  in  tunnels,  or  below  the  surface  of 
the  avenue,  and  the  oflicers  whose  duty  it  is 
to  assess  the  expanse  of  paving  the  avenue 
report  that  there  was  no  evidence  to  show 
that  the  company  was  in  any  way  benefited 
by  the  pavcnient,  it  will  not  be  held  liable 
for  an  assessment.  People  ex  rtl,  v.  Gilon, 
41  Hun  510,  3  A'.   Y.  S.  a:  358. 

The  franchise  of  a  railroad  company  from 
the  state,  authorizing  it  to  use  a  highway,  is 
not  liable  to  an  assessment  for  opening  the 
street.     /«  rg  Public  Parks  L'om'rs,  47  Hun 

302, 13  iV.  Y.  s.  a:  581. 

A  company  which  locates  its  road  upon 
a  highway  is  bound  to  construct  and  keep 
the  same  in  such  condition  us  to  render 
it  reasonably  sale  for  travelers.  Currier  v. 
Ogdensburgh  <S-  Z.  C.  A.  Co.,  2$  N.  Y.  S.  Ji. 
87,  6  N.  Y.  Supp.  615,  2  Silv.  Sup.  Ct.  12 ; 
affirmed  in  1 27  A'.  Y.  653,  mem.,  27  N.  E. 
Aep.  857,  mem. 

Where  a  new  street  is  opened,  and  the 
lands  of  a  railroad  company  are  the  only 
lands  receiving  a  new  froiita(>e  thereby,  the 
company  is  properly  assessed  with  a  greater 
|)roportion  of  the  cost  of  the  improvement 
than  is  other  adjacent  proj/erty.  In  re 
Alexander  Ave.,  17  N.  Y.  Supp.  933,  44  N. 
Y.  S.  R.  546,  63  Hun  630,  mem. 

After  defendant  company  had  acquired, 
at  various  times,  the  right  to  lay  tracks  in 
certain  streets  in  New  York  city,  on  con- 
dition that  it  should  pave  some,  and  grade 
others,  a  statute  was  passed  authorizing  it 
to  extend  its  track  on  a  certain  avenue,  the 
company  to  have  the  same  rights  and 
privileges  "  as  under  former  grants  and 
laws."  Held,  that  the  statute  did  not  im- 
pose upon  the  company  the  duty  to  pave 
between  its  tracks  on  the  avenue.  Mayor, 
etc.,  of  N.  Y.  V.  New  York  &*  H.  R.  Co.,  46 
N.  Y.  S.  R.  349,  19  N.  Y.  Supp.  67.  64  Hun 
635,  mem.  ;  affirmed  in  1 39  N.  Y.  643,  mem., 
35  A'.  E.  Rep.  206,  mem.,  54  A^.  Y.  S.  R.  933, 
w//;//.— Distinguishing  Mayor,  etc.,  of  N. 
Y.  V.  Eighth  Ave.  R.  Co.,  118  N.  Y.  389,  29 
N.  Y.  S.  R.  17. 

A  provision  in  a  city  charter  that  railroad 
companies  occupying  portions  of  the  streets 
should  bear  a  portion  of  the  expense  of 
7  D.  R.  D.— 44 


paving  such  streets  is  within  the  authority 
of  the  legislature,  and  the  share  of  the  ex- 
pense to  be  borne  is  within  its  discretion, 
Lake  Shore  &*  M.  S.  R.  Co.  v.  Dunkirk,  48 
A^.  Y.  S.  R.  208,  65  Hun  494,  20  A'.  Y. 
Supp,  596. 

An  amendment  to  such  charter  undertook 
to  consolidate  dilTerent  provisions  relating 
to  the  construction  of  sewers  and  the  grad- 
ing and  paving  of  streets,  but  omitted  to 
repeal  certain  sections  relating  to  notice  of 
iiitqntion  to  construct  sewers,  etc.  Held, 
that  such  sections,  if  they  continue  in  force 
at  all,  continue  only  in  respect  to  sewers, 
and  not  to  grading  and  paving  streets. 
Lake  Shore  &•  Af.  S.  R.  Co.  v.  Dunkirk,  48 
N.  Y.  S.  R.  208,  6s  Hun  494,  20  A^.  Y. 
Supp.  596. 

Town  highway  commissioners  assessed 
highway  labor  against  "  II.  R.  R.  Road," 
which  was  understood  to  mean  Hudson 
River  railroad,  but  it  did  not  otherwise 
appear  from  the  list  whether  the  assessment 
was  against  the  lands  of  a  non-resident  or 
against  the  corporation,  whose  principal 
office  was  not  in  the  town.  Held,  that  the 
assessment  was  against  the  corporation,  and 
not  against  its  real  estate  as  lands  of  a  non- 
resident. Fowler  v.  IVestervelt,  1 7  Abb.  Pr. 
(N.  Y.)  59. 

Where  a  city  charter  requires  the  cost  of 
street  improvements  to  be  assessed  "  upon 
the  property  benefited,"  local  assessors 
not  add  to  an  assessment  against  a  rai  I 
company  because  it  has  built  an  emt.^..,<- 
ment  so  as  to  add  to  the  cost  of  the  im- 
provement. People  ex  rel.  v.  Troy  Assessors, 
2  Abb.  N.  Cas.  (N.   Y.)  86. 

353.  North  Carolina.— A  road  used 
as  a  mill  road  may  also,  because  of  its  loca- 
tion, be  such  a  "  plantation  road  "  as  will 
impose  upon  the  company  the  burden  of 
keeping  it  in  repair,  under  N.  Car.  Code, 
§  1975.  Hinkle  v.  Richmond  &•  D.  R.  Co., 
109  A'^.  Car.  472,  13  5.  £■.  Rep.  884. 

354.  Ohio. — A  lot  is  n<jt  exempt  from 
street  assessments  because  owned  and  oc- 
cupied by  a  railroad  company  with  its 
track,  and  as  between  the  railroad  and  the 
person  performing  the  work  on  the  street 
(whatever  may  be  ihe  rights  of  bona  fide 
mortgagees  of  the  road),  the  lands  so  occu- 
pied may  be  sold  to  pay  such  assessment. 
Northern  Ind.  R.  Co.  v.  Connelly,  10  Ohio 
St.  159.— Reviewing  Providence  &  W.  R. 
Co.  V.  Wright,  2  R.  I.  459. — Followed  in 
Daniels  v.  Kecler,  10  Ohio  St.  169;  Fitch  v. 


I 


:"?» 


M 


600 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  350. 


!'"i 


i"l 


Keelcr,  lo  Ohio  St.  169.  Reviewed  in 
Ludlow  V,  Cincinnati  Southern  R.  Co.,  7 
Am.  &  Eng.  R.  Cas.  231,  78  Ky.  357. 

Land  appropriated  by  a  company  (or  its 
track  through  a  city,  and  crossing  an  im- 
proved street  at  right  angles,  and  upon 
which  the  track  was  constructed  after  the 
work  of  improvement  had  been  completed, 
is  liable  to  assessment  for  the  cost  of  such 
work,  the  land  so  appropriated  and  occupied 
exclusively  for  that  purpose  being  land 
within  the  meaning  of  section  116  of.  the 
act  for  the  organization  of  ciiies.  (Swun's 
Ohio  Rev.  St.  985.)  Northtrn  Ind.  R.  Co. 
V.  Conntlly,  10  Ohio  SI.  159.— Rkvikwino 
Sangamon  &  M.  R.  Co.  v.  Morgan  County, 
14  III.  163. 

Where  a  village  council  and  a  company 
agree,  under  the  Ohio  statute,  as  to  the 
terms  upon  which  the  company  may  use  the 
streets  of  the  village  for  its  road,  whereby 
the  company  binds  itself  to  grade  and 
gravel  the  streets  so  used  in  a  manner  "  to 
the  acceptance  of  the  council,"  a  subsequent 
ordinance  repealing  the  contract  ordinance, 
passed  with  intent  to  rescind  the  entire  con- 
tract, being  inoperative,  without  the  assent 
of  the  company,  to  rescind  the  grant  of  the 
right  of  way,  is  also  inoperative  lo  release 
the  company  from  its  obligation  to  grade 
and  gravel  streets.  Cincinnati  6-  S.  /i'.  Co. 
V.  Carthage,  $  Am.  &*  Eng.  K.  Cas.  306,  36 
OhioSt.6zi. 

Where  such  contract  provides  for  the  im- 
provement of  a  dedicated  street  which  had 
not  been  previously  accepted  by  the  council, 
such  contract  for  its  improvement  consti- 
tutes an  acceptance  of  the  dedication  on  the 
part  of  the  village.  Cincinnati  &*  S.  li.  Co. 
v.  Carthage,  5  Am.  &*  Eng.  J\'.  Cas.  306,  36 
Ohio  St.  631. 

Upon  the  failure  of  a  company  within  a 
reasonable  time  to  grade  and  gravel  the 
streets  of  a  village  as  per  contract  by  which 
it  secured  a  right  to  use  the  streets,  a  right 
of  action  accrues  to  the  village  without 
special  notice,  request,  or  demand  on  the 
company  to  perform  its  contract,  and  it  is 
not  essential  to  the  right  to  maintain  such 
action  that  the  village  should  have  estab- 
lished, by  ordinance  other  than  the  contract 
ordinance,  the  permanent  grade  of  such 
streets.  Cincinnati  &*  S.  R.  Co.  v.  Carthage, 
5  Am.  &*  Eng.  R.  Cas.  306,  36  Ohio  St.  631. 

366.  Peunsylvauia.  —  A  municipal 
corporation  cannot  support  a  claim  against 
a  company  for  paving  a  street  running  by 


the  side  of  the  railroad.  Philadelphia  v. 
Philadelphia,  IV.  **  B.  R.  Co.,  33  Pa.  St.  41. 
—Followed  in  Junction  R.  Co.  v.  Phila- 
delphia, 88  Pa.  St.  424 ;  Mt.  Pleasant  v. 
Baltimore  &  O.  R.  Co.,  138  Pa.  St.  365; 
Allegheny  City  v.  Western  Pa.  R.  Co.,  138 
Pa.  St.  375. 

Whenever  a  person  or  corporation  bound 
to  repair  a  public  liighway  refuses  to  do  so, 
when  necessary,  on  notice  from  the  proper 
public  officers,  they  may  make  the  necessary 
repairs,  and  recover  the  expense  tliereof  in 
an  action  of  assumpsit.  Pennsylvania  R. 
Co.  V.  Dnquesne,  46  Pa.  St.  223. 

A  municipality  cannot  support  a  claim 
for  paving  against  the  roadbed  of  a  railroad, 
and  it  is  immaterial  whether  the  company 
has  simply  the  right  of  way  or  owns  the  bed 
in  fee.  The  right  of  way  acquired  by  a 
company  is  exclusive  at  all  times  and  for 
all  purposes.  Junction  R.  Co.  v.  Philadel- 
phia, 88  Pa.  St.  424.— Following  Phila- 
delphia!/. Philadelphia,  W.  &  B.  K.  Co.,  33 
Pa.  St.  41.— Followed  in  Mt.  Pleasant  v. 
Baltimore  &  O.  R.  Co.,  138  Pa.  St.  365; 
Allegheny  City  v.  Western  Pa.  R.  Co.,  138 
Pa.  St.  375.  Reviewed  in  Bishop  v.  Union 
R.  Co.,  14  R.  I.  314,  51  Am.  Rep.  386. 

A  municipal  claim  for  the  paving  of  a 
sidewalk  along  the  roadbed  of  a  company 
cannot  be  sustained,  inasmuch  as  the  paving 
cannot  possibly  confer  a  special  benefit  upon 
the  property  known  as  the  right  of  way,  and 
hence  the  whole  theory  whicli  justifies  such 
charge  fails  in  this  instance.  A/t.  Pleasant 
V.Baltimore  &*0.  R.  Co.,  138  Pa.  St.  365,  20 
Atl.  Rep.  1052.— Following  Philadelphia 
V.  Philadelphia,  W.  &  D.  R.  Co..  33  Pa.  St. 
41  ;  Junction  R.  Co.  v.  Philadelphia,  88  Pa. 
St.  424. — Allegheny  City  v.  Western  Pa.  R, 
Co.,  138  Pa.  St.  375,  21  Ail.  Rep.  763.— Fol- 
lowing Philadelphia  v.  Philadelphia,  W. 
&  B.  R.  Co.,  33  Pa.  St.  41 ;  Junction  R.  Co. 
V.  Philadelphia,  88  Pa.  St.  424.— Philadel- 
phia V.  Philadelphia,  IV.  &*  B.  R.  Co.,  2 
Phila.  (Pa.)  244. 

This  reason  does  not  apply,  however,  to  a 
passenger  station,  nor  to  ground  used  as  a 
freight  station  or  a  lumber  yard  ;  and,  in  the 
exercise  of  poKce  powers  conferred  upon 
boroughs  by  the  act  of  April  3,  1851,  ground 
used  for  such  purposes  and  not  forming 
part  of  the  roadbed  may  be  subject  to  such 
charge.  Mt.  Pleasant  v.  Baltimore  &*  O.  R, 
Co.,  138  Pa.  St.  365,  20  Atl.  Rep.  1052.— 
Distinguishing  Olive  Cemetery  Co.  v. 
Philadelphia,  93  Pa.  St.  129.  —  Followeiv 


STREETS   AND   HIGHWAYS  (RAILWAYS  IN),  350-308.         691 


IN  Allegheny  City  v.  Weitern  Pa.  R.  Co., 
138  Pa.  St.  375. 

The  provisions  of  the  Pa.  Act  of  April  1, 
1870  (P.  L.  7Si),  directing  the  assessment  of 
the  cost  of  street  improvements  in  Alle- 
gheny city  against  the  owners  of  any  inter- 
est In  abutting  properties,  and  that  when 
the  owner  Is  a  public  corporation,  and  the 
property  cannot  for  any  reason  in  law  be 
sold  upon  a  municipal  lien,  the  lien  shall  be 
prosecuted  to  judgment  and  collected  by  a 
writ  ol  fitri  facias,  even  if  they  are  broad 
enough  to  cover  and  were  intended  to  cover 
all  railroad  property,  do  not  aflect  the  above 
rule,  especially  in  a  case  where  the  railroad 
is  from  twelve  to  fifteen  feet  lower  than  the 
bed  of  the  street,  as  assessments  for  such 
improvements  can  be  sustained  only  when 
the  property  is  capable  of  benefit  therefrom. 
Alligheny  City  w.  Wtsttrn  Pa.  Ji.  Co.,  138 
Pa.  St.  375,  21  Atl.  Rep.  763.— Following 
Mt.  Pleasant  V.  Baltimore  &  O.  R.  Co.,  138 
Pa.  St.  365. 

While,  as  a  general  rule,  the  property 
owner  cannot  defend  upon  the  ground  that 
his  property  is  not  benefited  by  a  street  im- 
provement,  this  rule  has  no  application  to 
the  roadbed  of  a  railroad  company,  that 
being  the  one  species  of  property  which  the 
law  presumes  incapable  of  being  benefited. 
All^heny  City  v.  Wtsttrn  Pa.  R.  Co.,  138 
Pa.  St.  37S.  21  Atl.  Rtp.  763.  —  Distin- 
guishing Western  Pa.  R.  Co.  v.  Alle- 
gheny, 3  W.  N.  C.  229. 

In  the  absence  of  any  special  benefit 
from  such  an  improvement,  and  in  a  case 
where  the  courts  can  declare  as  a  matter  of 
law  that  no  such  benefit  can  arise,  the 
legislature  is  powerless  to  impose  upon  the 
property  the  burden  of  special  assessments 
for  the  cost  of  the  improvement ;  this  would 
not  be  a  tax,  but  practical  confiscation. 
Allegheny  City  v.  Western  Pa.  R.  Co.,  138 
Pa.  St.  37 s,  21  Atl.  Rep.  763. 

360.  West  VirKiuia.— License  from  a 
city  to  a  company  to  build  its  track  across, 
along,  or  upon  a  public  street  gives  it  no 
power  to  destroy  the  street,  and  it  is  bound 
to  restore  the  street  to  its  former  state,  or 
to  such  state  as  not  unnecessarily  to  impair 
its  usefulness,  and  also  to  build  proper 
crossings  over  the  railroad,  and  Iceep  them 
in  good  repair.  If  it  fail,  it  may  be  com- 
pelled to  do  so  by  mandamus ;  and  as,  in 
tlie  event  of  failure,  the  company  is  guilty  of 
maintaining  a  nuisance,  equity  may  enter- 
tain a  bill  to  abate  such  nuisance,  and  may 


compel  the  company  to  perform  iti  duty. 
Moundsvillt  V.  Ohio  RHitr  R.  Co.,  54  Am,  5* 
Eng.  R.  Cas.  538,  37  W.  Va.  92,  16  S.  E. 
Rtp.  S14.— DISAPPKUVINO  Cairo  &  V.  R. 
Co.  V.  People,  92  III.  170.  Quoting  State 
ex  rel.  v.  Northeastern  R.  Co.,  9  Rich.  (So. 
Car.)  247.  Reviewing  People  ex  rel,  v. 
Dutchess  &  C.  R.  Co.,  58  N.  Y.  16$ ;  In- 
dianapolis  &  C.  R.  Co.  v.  State,  37  Ind.  489; 
People  ex  rel.  v.  Chicago  &  A.  R.  Co.,  67 
111.  118;  State  ex  rel.  v.  Dayton  &  S.  E.  R. 
Co.,  36  Ohio  St.  434 ;  Jamestown  v.  Chicago, 
B.  &  N.  R.  Co.,  69  Wis.  648 ;  Oshkosh  v. 
Milwaukee  &  L.  W.  R.  Co.,  74  Wis.  $34: 
Storer  v.  Great  Western  R.  Co.,  2  Y.  &  C. 
Ch.  48. 

357.  Wisconiiln.  —  By  a  city  charter, 
the  common  council  had  full  power  over 
the  streets  and  sidewalks,  and  authority  to 
keep  them  in  repair;  and  the  street  com- 
missioners were  authorized  to  make  all  nec- 
essary repairs  therein.  A  company,  after 
constructing  its  road  through  certain  streets, 
negl  oted,  though  requested  by  the  com- 
missioners, to  restore  such  streets  and  the 
sidewalks  thereon  to  their  former  con- 
dition, as  the  statute  requires,  and  the  com- 
missioners procured  the  necessary  repairs 
to  be  made,  for  which  payment  was  made 
by  the  city.  HtU,  that  the  city  may  recover 
from  the  company  all  reasonable  expenses 
so  incurred.  Oconto  v.  Chicago  &*  N.  W. 
R.Co.,  44  Wis.  231.— Reviewed  in  District 
of  Columbia  v.  Washington  &  G.  R.  Co., 
4  Am.  &  Eng.  R.  Cas.  161,  i  Mackey 
(D.  C.)  361. 

Provisions  of  the  charter  establishing  the 
general  policy  of  repairing  streets  and  side- 
walks, under  the  direction  of  the  street 
commissioners,  at  the  expense  of  adjoinm| 
lota— held,  inapplicable  to  the  repairs  in 
question.  Oconto  v.  Chicago  &»  N.  W.  R. 
Co.,  44  Wis.  231. 

The  company  whose  neglect  of  its  own 
legal  duty  has  compelled  the  city  to  make 
the  repairs  is  not  in  a  position  to  question, 
on  technical  grounds,  the  authority  of  the 
council  to  appropriate  city  funds  to  pay  for 
the  same.  Oconto  v.  Chicago  &*  N.  W.  R. 
Co.,  44  W".  23  >• 

358.  Canada.  —  A  municipality  may 
file  a  bill  to  compel  a  company  to  put  streets 
and  highways  improperly  traversed  by  its 
railway  in  good  repair,  and  will  not  be  re- 
stricted to  proceedings  by  indictment  or 
information.  Fenelon  Falls  v.  Victoria  R. 
Co.,  29  Grant's  Ch.  (U.  C.)  4. 


■  it 
I'".! 


692 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  369. 


'hi 


li 


,3*' 


Notxiithstanding  any  liability  which  may 
be  cast  by  statute  upon  a  company  to  main- 
tain and  repair  a  bridge  and  its  approaches 
by  means  of  which  a  highway  is  carried  over 
its  railway,  sucti  highway  is  still  a  public 
highway,  and  as  such  comes  within  the  pro- 
visions of  the  Municipal  Act  (Oni.  Rev.  St. 
ch.  184,  §  5JI),  requiring  every  public  road- 
street,  bridge,  and  highway  to  be  kept  in 
repair  by  the  municipal  corporation,  which 
is  not  absolved  from  liability  for  default  by 
the  liability,  if  any,  cf  the  company.  Mead 
V.  Etobicoke  Tp.,  42  Am.  &•  Eng.  R.  Cas.  81, 
18  Ont.  438. 

360.  England,  —  Where  the  act  of  a 
company  provides  that  so  much  oi  the  Rail- 
ways Clauses  Consolidation  Act,  1845,  as  re- 
lates to  the  mode  of  crossing  roads  and 
construction  of  bridges  "  shall  respectively, 
except  so  far  as  the  same  may  be  by  this  act 
otherwise  provided  for,  and  except  such  of 
the  provisions  thereof  as  may  be  incon- 
sistent with  the  provisions  herein  contained, 
be  incorporated  with  and  form  part  of  this 
act,"  there  are  incorporated  into  the  act  the 
provisions  of  the  general  act  which  relate 
to  crossings  and  the  construction  of  bridges, 
section  6$,  imposing  penalties  for  suffering 
roads  and  approaches  to  bridges  to  be  out 
of  repair,  and  section  145  and  subsequent 
sections,  relating  to  the  mode  of  enforcing 
such  penalties.  Bristol  &*  n,.  H.  Co.  v. 
Tucker,  13  C.  B.  N.  S.  207,  7  L.  T.  464. 

An  order  of  justices  directing  a  company 
to  r>^pair  damages  to  a  road  is  sufficient  if 
it  states  the  length  i^  "he  damaged  part 
and  orders  the  compa.v  to  make  it  good ; 
it  is  not  necessary  that  the  particulars  of 
the  damage  be  specified.  Several  highways 
in  the  same  parish  may  be  included  in 
the  order  and  conviction  for  disobedience. 
London  6-  N.  W.  R.  Co.  v.  Wet  her  all.  15 
Jur.  247. 

A  company  does  not  interfere  with  a  road 
so  as  to  bring  the  case  within  section  58  of 
the  Railways  Clauses  Consolidation  Act, 
1845,  by  pulling  down  a  county  bridge  and 
erecting  another,  but  entering  into  an  agree- 
ment with  the  trustees  to  repair  such  por- 
tions of  the  approaches  as  had  previously 
been  repaired  by  the  county.  Ex  parte 
Exeter  Road  Trustees,  16  Jur.  669. 

A  railway  company  crossing  a  highway 
on  a  level  must  keep  the  part  of  the  way 
used  by  the  public  in  proper  repair.  Olivtr 
V.  North  Eastern  X.  Co.,  43  L,/,  Q,  B,  198, 
L.R.9  Q.  £.  409. 


A  vacant  lot  of  a  railway  company  close 
to  one  of  the  piers  of  its  bridge,  and  used 
for  the  purpose  of  repairing  the  bridge,  and 
land  which  is  partly  vacant  and  partly  a 
buttress  or  a  support  to  the  embankments 
of  the  railway,  are  vithin  25  &  26  Vict.  c. 
102,  §  77,  and  the  company  may  be  com- 
pelled to  contribute  to  the  expense  of  paving 
a  street  on  which  such  land  abuts.  J/ig- 
gins  V.  Harding,  L.  R.  8  Q.  B.  7,  42  L.  J. 
M.  C.  31,  27  L.  T.  483.  21  W.  R.  191. 

A  CO  npany  whose  line  runs  in  a  cutting 
adjoining  a  street  and  separated  from  it  by 
a  wall  through  which  there  is  no  connection 
between  the  street  and  the  railway  is  liable 
to  be  assessed  for  the  expense  of  paving 
such  street.  London  &•  N.  W.  R.  Co.  v.  St, 
Pancras,  17  Z.  T.  654. 

The  exemption  of  a  company  from  bor« 
ough  assessments  to  meet  the  expenses  of  % 
local  improvement  act  must  be  given  effect 
by  the  authority  which  exercises  the  power 
of  that  act  within  the  part  of  the  district 
included  in  the  borough.  Reg,  v.  London 
6-  N.  W.  R.  Co.,  46  L  J.  M.  C.  102. 

Where  a  company  has  used  highways  by 
the  carriage  of  materials  in  the  carts  of  con> 
tractors  or  other  persons  employed  by  them, 
the  justices  have  power  to  make  an  order 
compelling  the  company  to  repair  such 
highways.  West  Riding  &•  G.  R.  Co.  v. 
Wakefield  Local  Board  of  Health,  $  B.  &» 
S.  478,  10  Jur.  N.  S.  1046,  33  L.J.  M.  C. 
174,  12  W.  R.  1076. 

A  justice  of  the  peace,  although  inter- 
ested, is  not  incompetent  to  act  in  proceed- 
ings to  compel  a  railway  company  to  repair 
damages  to  a  public  road,  provided  the 
party  knowing  that  he  was  interested 
assented  to  his  act.  Wakefield  Local  Board 
of  Health  v.  West  Riding  G^  G.  R.  Co.,  6 
B.  &»  5.  794,  10  Cox  C.  C.  162,  13  L.  T.  590. 

The  same  justice  who  makes  an  order  to 
compel  a  company  to  repair  a  public  road 
damaged  by  it  must  impose  the  penalty  for 
disobedience  of  such  order.  Wakefield 
Local  Board  of  Health  v.  West  Ridit^  &* 
G.  R.  Co.,  6  B.&*S.  794,  10  Cox  C.  C.  162, 
13  L.  T.  590.    R4g.  V.  Rawson,  15  /,.  T.  179. 

Where  a  street  crosses  a  railway  laid  in  a 
deep  cutting  by  means  of  a  bridge  suppoiied 
on  stone  piers  erected  on  the  slope  of  the 
cutting,  the  track  and  the  slopes  do  not 
bound  or  abut  upon  the  street  within  the 
meaning  of  the  Metropolis  Management 
Amendment  Act,  1862,  §  77,  so  as  to  require 
the  company  to  contribute  to  the  paving  of 


STREETS  AND  HIGHWAYS   (RAILWAYS  IN),  360-862.        693 


ose 
ised 
inci 
y  a 
nts 
c. 
3m- 


/• 


the  road.  London,  B.  <S-  S.  C.  R.  Co.  v.  St. 
Giles,  Camberwell,  L.  Ji.  4  Ex.  D.  239,  48  L. 
/.  M.  C.  186. 

A  railway  company  whose  track  is  laid  in 
a  deep  cutting  crossed  by  a  street  which  is 
carried  over  on  a  bridge  is  not  liable  to 
contribute  to  the  paving  of  the  road,  where 
it  ceases  at  one  extremity  of  the  bridge  to 
be  a  "new  street"  within  the  meaning  of 
the  Metropolis  Management  Amendment 
Act,  1862,  §  77.  London,  B.  6f  S.  C.  R.  Co. 
V.  St.  Giles,  Camberwell,  L.  R.  4  Ex.  D. 
239,  48  L.J.  M.  C.  186. 

A  company  which  carries  a  higliway  over 
its  track  by  means  of  a  bridge  having  para- 
pets consisting  of  two  walls  resting  upon 
arches  having  their  foundations  in  the  rail- 
way company's  land  is  not  the  "owner  of 
land  bounding  or  abutting  on  "  the  high- 
way within  section  77  of  the  Metropolis 
Management  Act  of  1862,  and  is  not  liable 
as  owner  of  the  walls  to  contribute  to  the 
expense  of  paving  the  street.  Great  East- 
ern R.  Co.  V.  Hackney  Dist.  Board  of  Works. 
1 3  Am.  &■•  Eng.  R.  Cas.  404,  L.  R.  8  App. 
Cas.  687,  52  L./.  M.  C.  105,  49  L.  T.  509,  31 
W.  R.  769 ;  reversing  L.  R.  9  Q.  B.  D.  412, 
51  L.  J.  M.  C.  57.  46  L.  T.  679.  30  W. 
R.  765. 

VI.  LIABIIITT  FOB  INJVBIES  CAUSES 
BT  NEOIIOENCE. 

I.  Of  the  Town  or  City. 

300<  City  or  town  primarily  liable 
for  defects  in  streets.  —  A  municipal 
corporation  is  liable  to  one  who  is  injured 
by  reason  of  the  unsafe  condition  of  a  street 
rendered  so  by  the  construction  of  a  rail- 
road thereon,  under  authority  of  and  in  a 
manner  prescribed  by  the  city.  Barnes  v. 
District  of  Columbia,  91  U.  S,  540. — Fol- 
lowed IN  M-xwell  V.  District  of  Columbia, 
91  U.  S.  557. 

The  common  council  has  exclusive  power 
over  the  streets,  h ighways,  alleys,  etc. ,  within 
a  city,  and  it  is  its  duty  to  keep  and  main- 
tain such  streets  and  alleys  unobstructed; 
and  no  matter  by  whom  the  obstruction 
may  be  placed  in  the  street  or  alley,  the 
city  is  primarily  liable  to  an  individual  who 
may  sustain  damage  by  reason  of  the  ob- 
struction ;  and  although  the  railroad  com- 
pany may  be  liable  too,  and  although  the 
city  might  have  an  action,  after  having  paid 
damages  and  costs,  against   the   railroad 


company  for  reimbursement,  this  would 
subject  the  city  to  endless  litigation,  but 
the  evil  complained  of  would  still  remain. 
Indianapolis  &»  C.  R.  Co.  v.  State  ex  rel.,  37 
Ind.  489,  s  Am.  Ry.  Rep.  170. 

For  injuries  to  travelers  occasioned  by 
necessary  alteration  of  a  highway,  through 
want  of  sufficient  notice  or  warning  of 
such  change,  the  town  is  primarily  liable, 
although  such  change  is  being  effected  by 
a  railroad  company,  under  the  authority  of 
its  charter.     Phillips  v.  Veazie,  40  Me.  96. 

When  a  passenger  upon  a  highway  re- 
ceives an  injury  wholly  by  reason  of  an 
illegal  defect  therein,  caused  by  its  altera- 
tion by  a  railroad  company,  the  town  in 
which  it  is  situated  is  liable  for  such  injury. 
Veazie  v.  Penobscot  R.  Co.,  49  Me,  119. — 
Modified  in  Eaton  v.  European  &  N.  A. 
R.  Co.,  59  Me.  520.  Quoted  in  Potter  w. 
Bunnell,  20  Ohio  St.  150. 

361.  Consent  to  use  of  street  by 
railway  company  no  defense.— A  city 
council,  by  ordinance,  authorized  a  com- 
pany to  lay  its  tracks  in  a  street,  reserving 
the  right  to  require  it  to  cover  any  portion 
of  the  superstructure,  except  the  rails,  with 
plank,  and  to  light  its  road  with  gas,  as  the 
council  should  prescribe.  The  company 
made  and  left  open  a  ditch  between  its 
tracks,  which,  being  unlighted  at  night,  M. 
fell  in  and  was  injured.  Held,  in  an  action 
against  the  city,  that  its  supervision  of,  and 
responsibility  for,  the  street,  subject  only  to 
the  use  by  the  company,  continued,  and  that 
an  answer  pleading  the  ordinance  as  reliev- 
ing the  city  from  responsibility  for  so  much 
of  the  street  as  was  occupied  by  the  tracks 
of  the  railroad  was  insufficient.  Steuben- 
ville  v.  McGill,  41  Ohio  St.  235. 

302.  Limits  anil  exceptions  to  the 
rule.  —  A  municipality  charged  with  the 
duty  and  power  to  grade  and  alter  the 
streets  of  its  city  is  not  answerable,  in  the 
performance  of  such  work,  for  injury  result- 
ing to  a  citizen,  unless  negligence  be  shown. 
District  of  Columbia  v.  Baltimore  &»  P.  R. 
Co.,  4  Am.  &•  Eng.  R.  Cas.  179,  i  Mackey 
{D.  C.)  314. 

Under  Ind.  Rev.  St.  of  1881,  §  3106,  the 
common  council  of  a  city  may  provide  by 
ordinance  for  the  security  of  citizens  from 
the  running  of  trains  through  the  city,  and 
to  that  end  may  require  railroad  companies 
to  provide  and  use  suitable  safeguards  at 
the  intersection  of  streets  or  elsewhere 
within  the  city;  but  a  city  is  not  liable  for 


5si 
1^ 


Vt 


694        STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  363-367. 


Injuries  to  persons  or  property  which  may 
result  from  failing  to  require  a  company  to 
provide  such  safeguards.  Kisttur  v.  Indian- 
apolis, loo  Ind,  2IO.  —  Applying  Faulkner 
V.  Aurora,  8j  Ind.  130;  Robinson  v.  Evans- 
ville,  87  Ind.  334;  Lafayette  v.  Timberlake, 
88  Ind.  330.  Following  Brinkmeyer  v. 
Evansville,  39  Ind.  187.— Distinguished 
IN  Williams z/.  Citizens'  R.  Co.,  130  Ind.  71. 

363.  'When  town  not  liable.  —  A 
town  is  not  liable  for  an  injury  occasioned 
to  a  traveler,  passing  from  a  public  high- 
way to  a  station  through  a  road  opened  by 
the  proprietors  of  the  railroad  for  that  pur- 
pose, by  a  block  of  stone,  lying  within  the 
limits  of  the  highway,  as  located,  and  ob- 
structing the  entrance  to  the  road  to  the 
station,  if  it  does  not  obstruct  the  roadbed 
of  the  highway.  Smith  v.  Wendell,  7  Cush. 
(Mass.)  498. 

A  town  is  not  liable  for  injuries  done  to 
a  traveler  on  the  highway  by  a  locomotive 
engine  run  by  a  railroad  corporation  on  its 
track  illegally  laid  across  the  highway. 
Vinal  v.  Dorchester,  7  Gray  (Mass.)  421. 

364.  Liability  as  regards  cross- 
ings. —  A  company  was  required,  by  its 
charter,  so  to  construct  its  railroad  as  not 
to  obstruct  the  safe  and  convenient  use  of 
any  highway.  While  it  was  building  an 
embankment  across  a  highway,  a  traveler 
sustained  special  damage  from  the  obstruc- 
tion. Held,  that  the  town  was  liable  to  the 
sufferer.    Elliot  v.  Concord,  27  N.  H.  204. 

A  town  may  be  liable  under  Mass.  Gen. 
St.  ch.  44,  §22,  for  an  injury  resulting  to  a 
traveler  from  a  defect  in  a  highway,  al- 
though the  defective  place  is  within  the 
location  of  a  railroad  which  crosses  the 
highway  on  a  level  therewith.  Pollard 'V. 
Woburn,  104  Mass.  84. 

Where  a  city  is  sued  for  an  injury  received 
by  a  street  crossing  being  out  of  repair,  it  is 
no  defense  that  the  crossing  was  torn  up 
for  the  purpose  of  laying  a  railroad  track, 
and  that  an  injunction  had  been  obtained 
by  a  property  owner  enjoining  the  com- 
pany from  further  interfering  with  that 
part  of  the  street.  Dale  v.  Syracuse,  71 
Hun  449,  54  A^.  Y.  S.  R.  381.  24  A^.  Y. 
Supp.  968. 

Where  a  railroad  is  in  process  of  con- 
struction across  a  highway,  and  a  new  road 
is  opened  for  the  purpose  of  turning  the 
travel  from  the  old  way  which  has  become 
dangerous,  it  is  the  duty  of  the  town  to 
erect  and  maintain  such  warnings  or  ob- 


structions upon  the  old  road  as  to  notify 
travelers  that  it  is  not  to  be  used ;  and  if 
it  fails  in  this  regard  it  is  liable  for  any 
injuries  sustained  by  individuals  by  reason 
of  such  failure.  Barber  v.  Essex,  27  Vt. 
62.  —  Reviewing  Willard  v.  Newbury,  22 
Vt.  458. 

365. bridges.  —  An  incorporated 

town  is  charged  by  the  law  with  the  duty 
of  keeping  its  streets  in  proper  condition 
for  travel,  and  this  obligation  extends  to  a 
bridge  built  in  the  street  by  a  railroad  com- 
pany, on  its  right  of  way,  as  an  approach  to 
a  crossing  of  its  track.  Whatever  obliga- 
tion may  rest  upon  the  company  to  keep 
such  approach  in  safe  condition,  the  town 
still  remains  liable  for  negligence  in  that 
regard.  Fowler  v.  Strawberry  Hill,  74  lonva 
644,  38  N.  IV.  Rep.  521. 

366. cattle-guards.— If  the  pro- 
prietors of  a  railroad,  acting  within  the 
scope  of  their  lawful  authority,  construct  a 
cattle-guard  in  their  road,  at  a  place  where 
it  crosses  a  highway  on  the  same  level,  and 
the  town  erects  as'd  maintains  a  sufficient 
and  proper  barrier  against  such  cattle-guard, 
up  to  the  railroad,  and  as  far  as  can  be  done 
without  impeding  the  passing  of  cars  on 
the  same,  the  town  is  not  responsible  for 
an  injury  sustained  by  a  traveler  on  the 
highway  in  consequence  of  his  falling  into 
the  cattle-guard  without  any  fault  or  neg- 
lect on  his  part.  Jones  v.  Waltham,  4 
Cush.  {Mass.)  299. 

367.  Contributory  negligence  of 
per8t>n  injured."' — A  person  on  a  high- 
way and  approaching  a  railroad  track  has  a 
right  to  presume  that  the  statutory  signals 
will  be  given  of  approaching  trains,  and  he 
is  not  chargeable  with  contributory  negli- 
gence for  assuming  that  no  train  is  iufli- 
ciently  near  to  make  the  crossing  danger- 
ous when  none  has  been  seen  or  heard. 
Kennayde  v.  Pacific  R.  Co.,  45  Mo.  255. 

Plaintiff  was  crossing  a  street  on  a  cross- 
walk when  he  fell  and  was  injured  by  reason 
of  a  portion  of  the  walk  having  been  torn 
up  by  a  railroad  company  preparatory  to 
laying  its  track.  Held,  that  the  question 
whether  he  was  chargeable  with  contribu- 
tory negligence  for  not  noticing  where  he 
was  stepping  was  for  the  jury,  since  it 
appeared  that  his  attention  had  been  mo- 
mentarily  diverted  from  the  crossing.    Dale 


*  See  also  Crossings,  Injuries  to  Persons, 

ETC,  AT,   ieO-307. 


k 


\ 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  368, 360. 


695 


V.  Syracuse,  71  Hun  449,  54  A^.  Y.  S.  /?.  381, 
24  N.  Y.  Supp.  968. 

Where  one,  in  consequence  of  not  look- 
ing, steps  over  the  edge  of  a  sidewalk  and 
is  injured,  he  cannot  recover  from  the  city, 
notwithstanding  its  duty  to  keep  its  streets 
and  bridges  in  such  a  state  of  repair  as  not 
to  require  one  to  be  constantly  on  the 
lookout  for  dangerous  places.  Muhr  v. 
Mayor,  etc.,  of  N.  Y.,  16  N.  Y.  S.  R.  688,  2 
N.  Y.  Supp.  59. 

36d.  Instructions  to  the  Jury.— In 
an  action  against  a  city  by  a  street-car  con- 
duciior,  injured  in  the  evening  by  a  collision 
with  a  barrier  put  up  to  guard  a  point  where 
a  street  had  caved  in,  a  witness  testified 
that  the  danger  from  the  caving  in  had 
ceased  the  morning  before.  The  jury,  in 
connection  with  an  instruction  that  they 
might  find  the  barrier  to  be  a  defect  if  such 
a  change  had  occurred  as  to  render  its 
removal  proper,  were  allowed  to  decide 
whether  the  witness  meant  that  the  danger 
to  the  public  had  ceased  because  the  barrier 
had  been  put  up,  or  because  a  further  caving 
in  was  not  to  be  feared,  so  that  it  was  no 
longer  necessary.  Held,  that  the  question 
was  properly  left  to  the  jury.  Powers  v. 
Boston,  154  Mass.  60,  27  A';  E.  Rep.  995. 

Plaintiff,  at  the  time  of  the  accident,  stood 
upon  the  running  board  of  an  open  car  col- 
lecting fares,  and  his  person,  which  he 
allowed  to  project  beyond  the  outer  edge  of 
the  board,  coming  in  contact  with  a  barrier 
which  was  placed  by  the  city  within  two 
inches  of  such  outer  edge,  he  was  knocked 
off  and  sustained  the  injuries  in  question. 
He  admitted  that  he  had  a  general  idea  that 
there  were  some  obstructions  there,  but 
testified  that  he  did  not  know  they  were  so 
near  or  so  dangerous  as  they  were.  Held, 
that  the  question  of  his  negligence  was 
properly  left  to  the  jury.  Powers  v.  Boston, 
154  Mass.  60,  27  N.  E.  Rep.  995. 

2.  Of  the  Railroad  Company. 

a.  In  General."' 

369.  Care  required  from  the  com- 
pany, generally.! — Where  a  company  is 

*  As  to  amount  of  care  railroad  companies  are 
required  to  use  in  running  trains  through  chies 
and  villages,  see  note,  78  Am.  Dec  185. 

t  See  also  Negligence,  13. 

Personal  injuries  to  persons  in  highway,  see 
note,  15  L.  R.  A.  33. 

Care  required  in  management  of  locomotives 


rightfully  running  its  trains  on  a  public 
street,  it  must  do  so  in  such  a  way  as  to  be 
consistent  with  the  safety  of  persons  and 
property  on  the  street.  Barley  v.  Chicago 
<&-  A.  R.  Co.,  4  Biss.  ( U.  S.)  430- 

When  an  engine  is  backing  a  train  there 
should  be  a  lookout  to  give  notice  of  any 
persons  or  obstructions,  and  if  there  is 
steam  or  smoke  upon  the  track  great  care 
and  vigilance  are  required.  Barley  v,  Chi- 
cago &-  A.R.  Co.,  4  Biss.  {U.  S.)  430. 

Where  a  company,  in  violation  of  a  stat- 
ute, has  rendered  the  use  of  a  highway  un- 
safe, it  is  bound  in  operating  its  railroad  to 
exercise  proper  care  to  prevent  the  injury 
of  a  person  placed  in  danger  by  that  wrong 
while  in  the  lawful  use  of  the  highway. 
Hoggatt  V.  Evansville  &>  T.  H.  R.  Co.,  3  Ind. 

APP-  437.  29  A^-  E-  R*P-  941. 

Greater  care  is  to  be  exercised  by  the 
persons  managing  a  train  of  cars  within 
the  limits  of  a  town  or  city  than  is  required 
in  the  country.  Frick  v.  St.  Louis,  K.  C.  &* 
N.  R.  Co.,  8  Am.  &*  Eng.  R.  Cas.  280,  75 
Mo.  595. 

A  less  degree  of  vigilance  will  ordinarily 
be  required  between  the  streets  of  a  town 
or  city  than  will  oe  required  at  a  street 
crossing,  or  when  running  longitudinally  in 
a  street ;  but  undoubtedly  some  vigilance  is 
required  even  between  the  streets,  and  the 
degree  required  will  necessarily  vary  with 
the  attendant  circumstances.  In  any  case 
the  requisite  degree  of  vigilance  may  be 
properly  designated  by  the  words  "ordinary 
care,"  that  is,  such  care  as  would  ordinarily 
be  used  by  prudent  persons  performing 
a  like  service  under  similar  circumstances. 
Frick  V.  St.  Louis,  K.  C.  <S-  N.  R.  Co.,  8  Am, 
&*  Eng.  R.  Cas.  280,  75  Mo.  595.— Quoted 
IN  Stanley  v.  Union  Depot  R.  Co.,  114 
Mo.  606. 

If  a  railroad  is  a  public  highway,  the 
owners  are  liable,  like  towns,  for  all  injuries 
sustained  because  of  defects  in  their  road 
by  persons  traveling,  either  on  foot,  or  in 
their  own  carriages,  or  in  those  of  other 
persons.  Murch  v.  Concord  R.  Corp.,  29 
A^.  H.  9,  61  Am.  Dec.  631. 

The  owners  of  railroads,  which  are  public 
highways,  are  bound  to  make  such  landings 
or  places  of  access  to  their  roads  as  are 
necessary  for  the  public  accommodation, 
and  to  keep  them  in  suitable  and  safe  state 

nn   streets.     Engine's   emission  of  steam   and 
sttioke,  see  43  Am.  &  Eng.  R.  Cas.  193,  abttr. 


m 

III 


dj 


;!;•, 


696 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  370-372. 


i  i 


p 


for  the  accommodation  of  the  persons  who 
may  be  reasonably  expected  to  use  them. 
They  are  not  bound  to  do  anything  where 
no  passing  can  reasonably  be  expected. 
Murck  V.  Concord  R.  Corp.,  29  A^.  H.  9, 
61  Am.  Dec.  631. 

Railroad  corporations  are  bound  to  exer- 
cise reasonable  care  and  diligence  in  the 
management  and  operation  of  their  loco- 
motives in  the  vicinity  of  highways,  having 
due  regard  to  the  rights  and  safety  of 
travelers  thereon.  Gordon  v.  Boston  &^  M. 
R.  Co.,  58  A^,  H.  396. 

A  company,  when  moving  its  locomotives 
or  trains  upon  the  public  streets  of  a  city,  is 
bound  to  use  due  care  and  give  some  signal 
of  their  approach.  SoUn  v.  Virginia  &*  T. 
R.  Co.,  i-^  Ne7>.  106.— Quoting  Grippen  v. 
New  York  C.  R.  Co.,  40  N.  Y.  42. 

370.  Greater  care  than  In  other 
localities. — It  is  required  of  a  company  to 
exercise  more  care  than  would  otherwise 
be  necessary  when  running  its  trains  in  a 
populous  town.  Troy  v.  Ca/>e  Fear  &*  V. 
V.  R.  Co.,  34  Am.  &*  Eng.  R.  Cas.  13.  99 
N.  Car.  298,  6  S.  E.  Rep.  77,  6  Am.  St. 
Rep.  521. 

A  company  running  its  trains  on  city 
streets  must  use  greater  care  than  in  less 
frequented  localities,  and  any  neglect  of 
precautions  proper  in  such  case  constitutes 
negligence.  Norfolk  &*  W.  R.  Co.  v.  Burge, 
32  Am.  &•  Eftg.  R.  Cas.  loi,  84  Va.  63,  4  S. 
E.  Rep.  21. 

371.  Mutual  rights  of  company 
and  citizens.'*' — Railroad  companies,  in 
running  cars  on  streets  or  other  thorough- 
fares, are  held  to  a  very  high  degree  of  care 
and  diligence.  The  use  of  that  part  of  the 
street  where  the  track  is  laid  is  not  exclu- 
sive. The  entire  public  has  a  right  to  use 
such  streets.  Toledo,  IV.  <S-  IV.  R.  Co.  v. 
Harmon,  47  ///.  298. 

Where  a  track  is  laid  in  a  public  street, 
the  rights  of  the  public  and  the  company  re- 
specting the  use  thereof  are  mutual,  though 
those  of  the  latter  are  paramount.  A  person 
is  not  a  trespasser  who  walks  along  such 
track,  and  if  in  so  doing  his  foot  becomes 
fastened  in  an  opening  which  exists  by 
reason  of  negligent  construction  of  the 
track,  and  he  is  run  upon  by  a  train  of  the 
company  which  is  negligently  managed, 
he   being   without  fault,  the   company  is 


*See  also  Crossings,  Injuries  to  Persons, 
ETC.,  AT,  8-11. 


liable.  Louisville,  N.  A.  &*  C.  R.  Co.  V. 
Phillips,  31  Am.  <S-  Eng.  R.  Cas.  432,  112 
/«</.  59,  l3iV.  £.  Rep.  132.— DISTINGUISH- 
ING Barker  z/.  Hudson  River  R.  Co.,  4  Daly 
(N.  Y.)  274  ;  Zimmerman  v.  Hannibal  &  St. 
J.  R.  Co.,  71  Mo.  476;  Wilbrand  v.  Eighth 
Ave.  R.  Co.,  3  Bosw.  (N.  Y.)  314;  Jersey 
City  &  B.  R.  Co.  v.  Jersey  City  &  H.  Horse 
R.  Co.,  20  N.  J.  Eq.  61  ;  Adolph  v.  Central 
Park,  N.  &  E.  R.  R.  Co.,  65  N.  Y.  554; 
Chicago  W.  D.  R.  Co.  v.  Bert.  69  111.  388. 
Quoting  Smedis  7:  Brooklyn  &  R.  B.  R. 
Co.,88N.  Y.  13.— Followed  in  Oliio&M. 
R.  Co.  V.  Walker,  113  Ind.  196. 

The  right  of  a  company  to  use  that  part 
of  a  street  where  its  track  is  laid  is  not  ex- 
clusive ;  all  other  cars,  carriages,  and  persons 
who  are  authorized  by  law  to  use  the  same 
place  have  the  same  rights  as  the  company, 
but  the  same  degree  of  care  and  caution 
must  1)0  exercised  by  each.  Mooney  v.  Hud- 
son River  R.  Co.,  i  Sweeny  {N.  Y.)  325. 

372.  Duty  towards  persons  walk- 
ing on  the  track.— When  a  track  is  laid 
by  authority  of  law  in  a  public  thorough- 
fare, the  right  of  the  company  owning  the 
track  to  operate  trains  thereon  is  superior 
to  the  right  of  the  general  public  to  walk 
along  said  track,  but  having  a  superior 
right  thereon  does  not  relieve  the  company 
from  liability  to  damage  for  injury  to  per- 
sons caused  solely  by  its  negligence  in 
using  said  track.  Louisville  6-  N.  R.  Co. 
v.  Yniestra,  29  Am.  &*  Eng.  R.  Cas.  297,  21 
Fla.  700. 

An  individual  walking  on  a  track  in  a 
city  street  is  not  a  trespasser,  and  the  com- 
pany must  run  its  trains  with  reference  to 
him  and  to  all  others  who  may  be  rightfully 
upon  the  street.  Kansas  Pac.  R.  Co.  v. 
Pointer,  <) Kan.  620.— Quoted  in  Louisville, 
N.  A.  &  C.  R.  Co.  V.  Phillips.  31  Am.  & 
Eng.  R.  Cas.  432,  112  Ind.  59;  Solen  v.  Vir- 
ginia &  T.  R.  Co.,  13  Nev.  106. 

A  comi)any  may  be  liable  for  negligence 
in  propelling  its  cars  at  all  while  persons 
are  upon  its  tracks,  precisely  as  the  owner 
of  an  ordinary  carriage  would,  under  like 
circumstances.  Indeed,  greater  care  may 
be  required  from  the  former,  as  its  cars 
are  stopped  with  difficulty  and  cannot  be 
turned  out  of  their  course.  Mooney  v.  Hud- 
son River  R.  Co..  i  Sweeny  (N.  Y.)  325. 

A  company  is  bound  to  use  a  degree  of 
caution  in  operating  its  train  over  the 
streets  of  a  city  corresponding  to  the 
danger   incident   thereto,  when   from  the 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  373-376.        697 


absence  of  sidewalks  near  the  track  persons 
may  be  expected  to  walk  along  and  across 
the  track.     Gulf,   C.   &*  S.  F.  R.   Co.   v. 

Walker,  37  Am.  &•  Ettg,  R.  Cas.  342,  70 

Tex.  126,  7  S.  W.  Rep.  831. 

373.  Inevitable  accident  excuses 
tlie  company.""  —  A  company  is  held  to 
the  exercise  of  a  very  high  degree  of  care  in 
operating  its  road  through  the  public  streets 
of  a  city,  and  must  not  omit  any  reasonable 
duty  that  may  tend  to  the  safety  of  the  pub- 
lic. But  it  is  not  an  insurer  against  every 
casualty  th?t  may  happen,  or  fo-  an  injury 
attributable  to  inevitable  accident,  which 
no  vigilance  could  avoid.  Chicago,  B.  &•  Q. 
R.  Co.  V.  Slumps,  69  ///.  409. 

374.  Proximate  and  remote  cause. 
— The  rate  of  speed  of  a  train  moving  faster 
than  is  prescribed  by  an  ordinance  of  a  city 
is  not  the  proximate  cause  of  an  injury  to  a 
trespasser  who  is  injured  in  the  attempt  to 
get  on  board  such  moving  train  within  the 
limits  of  the  city.  Western  R.  Co,  v.  Mutch, 
97  Ala.  194,  II  So.  Rep.  894. 

While  a  woman  on  horseback  was  ap- 
proaching a  crossing,  some  section  men 
who  observed  her  approach,  and  had  just 
reached  the  crossing,  removed  a  hand-car 
from  the  track  and  placed  it  on  the  high- 
way, ten  feet  from  the  centre  thereof,  in 
such  a  way  as  to  frighten  the  horse,  owing 
to  which  the  woman  was  thrown  and  in- 
jured. Held,  that  the  fact  that  the  hand- 
car was  so  placed  was  the  proximate  cause 
of  the  injury,  and  a  verdict  against  the 
company  should  be  sustained.  Ohio  &^  M, 
R.  Co.  V.  Trowbridge,  45  Am,  &*  Eng.  R. 
Cas.  200,  126  Ind.  391,  26  N.  E.  Rep.  64. 

The  fact  that  the  woman  knew  the  car 
was  in  the  highway  does  not  necessarily 
prove  that  she  was  guilty  of  contributory 
negligence.  Ohio  &^  M.  R.  Co.  v.  TroW' 
bridge,  45  Am.  &•  Efig.  R.  Cas.  200,  126  Ind. 
391,  26  N.  E.  Rep.  64. 

Plaintiff,  who  was  employed  in  cleaning 
ice  and  snow  from  defendant's  track,  saw  an 
approaching  train,  and  got  out  of  the  way, 
but  slipped  ..nd  fell,  and  was  struck  and  in- 
jured ;  but  the  evidence  showed  that  the  car 
was  moving  at  a  forbidden  rate  of  speed  at 
the  time.  Held,  that  it  could  not  be  said, 
as  a  matter  of  law,  that  the  unlawful  speed 
was  not  the  proximate  cause  of  the  injury. 
Crowley  v.  Burlington,  C.  R.  <S-  N.  R.  Co., 
18  Am.  &*  Eng.  R.  Cas.  56,  65  fozva  658. 

*See  also  Negligence,  40. 


«o  A''.  W.  Rep.  467,  22  A^.  W.  Rep.  918.— 
Followed  in  Handelun  v.  Burlington,  C. 
R.  &  N.  R.  Co.,  72  Iowa  709, 32  N.  W.  Rep.  4. 

The  mere  fact  that  a  city  ordinance  is 
violated  by  failure  to  ring  the  bell,  or  by 
running  at  a  too  high  rate  of  speed,  will  not 
authorize  a  party  injured  to  recover.  There 
must  be  some  evidence  connecting  the  vio- 
lation of  the  ordinance  with  the  injury,  as  a 
cause.  Kelley  v.  Hannibal  &*  St.  J.  R.  Co., 
13  Am.  &*  Eng,  R,  Cas.  638,  75  Afo.  138.— 
Followed  in  Bowman  v.  Chicago  &  A.  R. 
Co.,  85  Mo.  533. 

376.  Injuries  due  to  failure  to 
keep  highway  in  good  repair.  — 
Where  a  company  owns  premises  adjacent 
to  a  city  street,  and,  without  authority,  in- 
terferes with  a  sidewalk  for  its  private  pur- 
pose and  fails  to  restore  it  to  a  safe  condi- 
tion, it  is  liable  to  any  one  who  sustains 
injury  thereby.  Thuringer  v.  New  York  C. 
€m  H.  R.  R.  Co.,  71  Hun  526,  55  A^.  Y.  S.  R. 
87,  24  A^  Y,  Supp,  1087. 

A  company  is  liable  for  injuries  resulting 
from  a  failure  to  keep  the  highways  in  good 
repair.  Mayberry  v.  Second  &*  T.  St.  R. 
Ctf.,  15  Phila.  {Pa,)  253. 

376.  Injuries  occasioned  hy  viola- 
tion of  ordinances,  generally.  —  If  a 
company  does  not  conform  to  the  city  ordi- 
nances providing  certain  safeguards  in  the 
use  of  its  engines,  it  is  not  in  the  lawful 
pursuit  of  its  business,  and  is  responsible 
for  any  injury  which  it  may  occasion,  if  the 
party  injured  be  not  in  fault.     Baltimore  6» 

0.  R,  Co,  v.  State,  29  Md.  252. 

Running  a  train  in  a  city  in  violation  of 
its  ordinances  is  negligence  per  se,  Dahl- 
strom  V.  St,  Louis,  I,  M.  6-  S,  R,  Co..  108  Mo. 
525,  18  S.  W,  Rep.  919.    Eswin  v.  St.  Louis, 

1.  M.  &*  S,  R.  Co,,  35  Am.  6-  Eng,  R.  Cas. 
390,  96  Mo,  290,  9  S,  W.  Rep.  577.— Fol- 
lowing Keim  v.  Union  R.  &  T.  Co.,  90 
Mo.  y\.—Schlereth  v.  Missouri  Pac.  R.  Co., 
IIS  ^fo-  87.  21  5.  W.  Rep.  1 1 10. 

Where  coal  merchants,  for  their  exclusive 
use  and  benefit,  and  for  the  purpose  of  facil- 
itating the  reception  of  car  loads  of  coal,  had 
caused,  by  agreement  with  defendant  rail- 
road, a  switch  track  to  be  connected  with 
the  track  of  the  defendant,  the  merchants 
agreeing  to  keep  a  watchman  to  notify  em- 
ployes of  their  patrons  of  the  approach  of 
trains,  and  an  empIoy6  is  injured  through 
failure  of  the  merchants  to  provide  a  watch- 
man to  give  such  warning,  such  failure  is  no 
defense  to  the  railroad  in  an  action  againtit 


■iffl 


^11 


1  I 


I 


A 


i 


698        STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  377-370. 


it  for  an  injury  to  such  employ6  caused  by< 
its  failure  to  observe  a  city  ordinance  requir- 
ing  it  to  Iceep  a  watcliman  on  tlie  rear  end 
of  its  freight  trains  to  warn  persons  of  dan- 
ger, and  to  sound  the  bells  of  its  locomo- 
tives within  the  city  limits.  Dunkman  v. 
Wabash,  Si.  L.  6*  P.  R.  Co.,  95  Mo.  232,  10 
West.  Rep.  396,  4  S.  W.  Rep.  670. 

Whether  a  train  is  "well  manned  w.th 
experienced  brakemen  at  their  poits  " 
the  meaning  of  a  city  ordinance  is ::  q- 
for  the  jury.    Dahlstromv.  St.  Lout-  1      '. 
&*  S.  R.  Co.,  108  Mo.   525.  18  S.W.  Rep. 
919. 

377.   ordinances    resti-ictin  : 

speed.* — A  company  is  liable  to  the  owner 
of  real  estate,  situated  in  an  incorporated 
city  or  town,  for  damage  and  injury  done  to 
his  house  and  buildings  by  vibrations  of  the 
soil,  where  it  can  be  shown  that  such  dam- 
age and  injury  are  the  direct  result  of  run- 
ning trains  at  a  greater  rate  of  speed  than 
six  miles  per  hour.  Porterfield  v.  Bond,  39 
Am.  «S-  Eng.  R.  Cas.  48.  38  Fed.  Rep.  391. 

An  employ^  who  was  not  in  the  habit  of 
running  trains  took  charge  of  an  engine  and 
backed  it,  with  a  car  attached,  through  a 
street  at  the  rate  of  twelve  miles  an  hour, 
in  violation  of  an  ordinance  restricting  the 
speed  to  five  miles  an  hour.  It  ran  off  the 
track  and  injured  plaintiff,  who  was  in  a 
building  twelve  feet  from  the  track.  The 
evidence  showed  that  the  steam  was  not 
•hut  off  after  the  engine  left  the  track. 
Held,  that  the  company  was  chargeable 
with  negligence  in  violating  the  ordinance. 
Mahan  v.  Union  Depot  St.  R.  6-  7.  Co.,  34 
Minn.  29,  24  A'^.  W.  Rep.  293. 

Persons  on  a  public  street  in  a  municipal- 
ity have  the  right  to  presume  that  a  com- 
pany will  obey  the  municipal  ordinances 
regulating  the  speed  and  management  of 
trains,  and  have  the  right  to  act  on  such 
presumption.  Eswin  v.  5/.  Louis,  I.  M.  &* 
S.  R.  Co.,  35  Am.  &•  Eng.  R.  Cas.  390,  96 
Mo.  290,  9  S,  W.  Rep.  ITJ. 

A  company  running  trains  through  and 
across  the  traveled  streets  of  a  city  at  a 
speed  of  fifteen  miles  an  hour,  in  violation 
of  an  ordinance,  does  so  at  its  peril,  and  if 
injury  arises  to  a  person  as  the  direct  conse- 
quence of  such  unlawful  speed,  he  will,  if 
otherwise  entitled,  have  a  good  cause  of 

•  Liability  of  company  in  accidents  for  running 
trains  at  speed  prohibited  by  city  ordinances,  see 
note,  53  Am.  Rep.  5a. 


action  against  the  company.  Neier  v.  Mis- 
souri Pac,  R.  Co.,  12  Mo,  App.  25. 

378. ordinances  requiring  giv- 
ing of  signals.  —  Where  a  city  ordinance 
prohibits  running  trains  through  the  corpor- 
ate limits  at  a  speed  greater  than  six  miles  an 
hour,  and  requires  the  placing  of  signals 
upon  the  engines  of  trains  running  in  the 
night-time,  if  a  company  runs  an  engine 
without  the  signals  and  at  an  unlawful 
speed  over  a  crossing  which  large  numbers 
of  people  are  in  the  daily  habit  of  using, 
and  fails  to  ring  a  bell  on  approaching  such 
crossing,  the  negligence  of  the  company  is 
gn  '  ■•  rrnd  will  authorize  a  recovery,  even 
whoxc  the  place  of  accident  is  not  on  a 
public  highway,  but  on  plaintiff's  right  of 
way.  East  St.  Louis  Connecting  R,  Co.  v. 
O'Hara,  49  ///.  App.  282. 

It  is  negligence  to  run  a  train  in  a  city 
with  twice  the  rapidity  allowed  by  a  city 
ordinance,  and  without  ringing  the  bell, 
sounding  the  whistle,  or  giving  any  signal 
of  approach.  St.  Louis  6»  S.  E,  R,  Co,  v. 
Mathias,  50  Ind.  65. 

In  running  a  train  backward  through 
streets,  the  engineer  should  see  that  the 
b  akeman  is  at  his  post  and  keeps  a  lookout 
on  the  track  to  warn  him  in  case  of  danger. 
It  is  the  duty  of  the  fireman  to  ring  the  bell 
continually  while  passing  through  a  town 
or  village.  Hamilton  v.  Morgan's  L.  &■»  T. 
R.  5-  S.  Co.,  42  La.  Ann.  824,  8  So.  Rep.  586. 

If  an  accident  happens  while  thus  running 
through  streets,  and  one  of  these  three  men 
is  not  immediately  at  his  post,  although  near, 
it  gives  good  cause  for  examination  and 
close  investigation.  Hamilton  v.  Morgan's 
L.  &*  T,  R.  fi-  S.  Co.,  42  La.  Ann.  824,  8 
So.  Rep.  586. 

The  failure  to  ring  a  bell  on  a  moving  rail- 
road engine,  as  required  hy  a  city  ordinance, 
constitutes  negligence ;  and  such  negligence 
alone  will  warrant  a  recovery  when  it  appears 
that  obedience  to  the  requirements  of  the 
ordinance  would  have  prevented  the  injury 
sued  for,  but  not  otherwise.  Hanlon  v.  Mis- 
souri Pac.  R.  Co.,  104  Mo.  381.  16  5.  W. 
Rep.  233. 

379. ordinances  as  to  standing 

cars,  movement  of  trains,  etc.— Plain- 
tiff was  injured  while  attempting  to  cross 
defendant's  track  in  a  city  through  an  open- 
ing between  cars  standing  from  twenty-five 
to  fifty  feet  apart.  He  testified  that  he 
looked  before  crossing,  and  did  not  see  that 
the  cars  were  moving.    The  evidence  also 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  380-383. 


G99 


showed  that  defendant  was  not  observing 
the  city  ordinance  regulating  the  move- 
ment of  trains.  Held,  that  the  case  was  one 
for  the  jury.  Dahhtrom  v.  St.  Louis,  I.  M. 
&*S.  R,  Co.  io8  Mo.  525,  18  S.  W.  Rtp.  919. 
A  company  is  chargeable  with  negligence 
in  backing  a  train  without  notice,  so  that 
the  rear  car  runs  onto  a  street  crossing. 
Shoemaker  v.  New  York  C.  &•  H.  R.  R.  Co., 
21  A^.  Y.  S.  R.  541,  4  A'.  Y.  Supp.  931,  50 
Hun  602,  mem. 

380.  lujiiries  caused  by  uegligence 
iu  operating  tiirutables.— Persons  oper- 
ating a  turntable  in  a  public  street  are  bound 
to  such  vigilance  as  may  be  reasonably  neces- 
sary to  prevent  collisions.  Schureman  v. 
Missouri  R.  Co.,  7  Mo.  App.  570. 

Where  no  part  of  the  testimony  is  pre- 
served, and  it  appears  from  the  instructions 
that  the  trial  court  found  as  a  fact  that  the 
machine  was  so  placed  in  a  public  street, 
near  a  crossing,  that  drivers  turning  the 
corner  could  not,  with  the  exercise  of  rea- 
sonable precaution,  avoid  injury  if  the  ma- 
chinery was  set  in  motion  as  they  approached, 
there  is  nothing  from  which  the  appellate 
court  can  see  that  the  trial  court  erred  in 
declaring  the  law  to  be  that  those  operating 
such  a  machine,  under  the  circumstances, 
were  bound  to  the  utmost  care.  Schureman 
V.  Missouri  R.  Co.,  7  Mo.  App.  570, 

381.  lQJiiric8  caused  by  snow  and 
ice  on  sidewalk. — Where  the  icy  condi- 
tion of  a  sidewalk,  upon  which  plaintiff 
fell  and  was  injured,  is  not  the  result  of 
negligence  in  failing  to  remove  naturally 
accruing  ice  and  snow,  but  is  caused  by  the 
action  of  defendant  company  in  throwing 
water  on  the  sidewalk,  where  it  froze,  the 
case  is  a  proper  one  for  the  jury,  and  a  ver- 
dict for  plaintiff  will  not  be  disturbed.  Can- 
field  V.  Chicago  &»  W.  M.  R.  Co.,  41  Am.  &* 
Eng.  R.  Cas.  566,  78  Mich.  356,  44  N.  W. 
Rep.  385. 

Plaintiff  left  a  sidewalk  which  was  impass- 
able by  reason  of  deep  snowdrifts,  and  was 
walking  in  the  street,  and  was  injured  by 
being  struck  by  a  team  which  shied  at  a 
passing  train.  The  company  was  charged 
with  negligence  in  constructing  and  main- 
taining its  track  in  the  street  where  it  was 
so  narrow  as  not  to  allow  sufficient  room 
for  ordinary  travel.  Held,  that  the  company 
was  not  liable.  The  accident  was  the  result 
of  a  failure  of  the  city  to  keep  its  sidewalks 
clear.  McCandless  v.  Chicago  6"  N.  W.  R. 
Co.,  71  Wis.  41,  36  jV.  W.  Rep.  620. 


382.  Collisions  with  teams  in 
streets.'*'  —  Where  a  team  is  injured  by  a 
train  within  the  limits  of  a  city,  and  upon 
one  of  its  streets,  and  on  the  trial  of  an 
action  to  recover  damages  therefor  there  is 
testimony  that  the  train  was  running  at  an 
unusual  speed,  that  no  effort  was  made 
to  stop  it  or  to  warn  the  party  in  charge  of 
the  team  of  the  approaching  danger,  and 
that  no  whistle  was  sounded  or  bell  rung,  it 
cannot  be  held  that  there  is  no  evidence 
of  negligence.  Pacific  R.  Co.  v.  Houts,  12 
Kan.  328. 

Plaintiff  was  driving  on  a  track,  and 
was  injured  by  an  approaching  car  while 
attempting  to  turn  from  the  track  to  the 
left.  A  statute  of  the  state  required  car- 
riages meeting  to  turn  to  the  right.  Held, 
that  the  statute  did  not  apply,  and  that 
plaintiff  was  not  chargeable  with  negligence 
in  turning  to  the  left.  Hegan  v.  Eighth 
Ave.  R.  Co.,  IS  N.  Y.  380.— Reconciled 
IN  Mayor  of  N.  Y.  v.  Third  Ave.  R.  Co.,  3 
N.  Y.  S.  R.  181. 

Defendant  company  operated  a  street-car 
line  using  dummy  engines  for  motive  power. 
One  of  these  was  running  at  a  high  rate  of 
speed  on  a  dark  and  somewhat  foggy  night, 
without  giving  warning  by  bell  or  whistle 
at  crossings,  as  it  was  required  to  do,  and 
collided  with  plaintiff,  who  was  driving  on 
the  street.  Held,  that  the  company  was 
guilty  of  negligence.  Hennessy  v.  Brooklyn 
City  R.  Co.,  TiHun  569,  26  N.  Y.  Supp.  301, 
56  N.  Y.  S.  R.  151. 

It  is  error  to  instruct  a  jury  that  if  plain- 
tiff was  not  guilty  of  negligence,  then  they 
must  assume  that  defendant  company  was, 
from  the  fact  that  a  collision  had  occurred 
in  the  street.  The  question  whether  the 
company  was  guilty  of  negligence  was  as 
material  as  whether  plaintiff  was,  and  that 
should  have  been  made  the  primary  question. 
Altreuter  v.  Hudson  River  R.  Co.,  2  E.  D. 
Smith  (N.  K.)  151. 

b.  Procedure. 

383.  Declaration  or  complaint.— 

In  an  action  to  recover  damage  for  falling 
into  an  unguarded  excavation  adjoining 
defendant's  track  in  the  city  of  V.,  it  is  not 
necessary  for  plaintiff  to  aver  that  he  was 
ignorant  of  the  existence  of  the  excava- 

•  See  also  Crossings,  Injuries  to  Persons, 
ETC.,  AT,  13-16,  139,  140. 


m 

Mil 


si! 


700        STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  884-386. 


> 

■  I' 


tion  where  negligence  is  alleged  and  a 
general  averment  is  made  that  defendant 
was  negligent  and  plaintiff  was  without 
negligence.  O^i'o  &*  M,  R.  Co.  v.  Levy,  134 
tnd.  343,  32  N.  E.  Rtp.  815. 

In  an  action  against  a  city  and  a  railroad 
company  to  prevent  the  occupancy  of  a 
street  by  the  latter,  and  for  damages  theic- 
for,  allegations  in  the  petition  to  the  effect 
that  other  streets  were  occupied  by  other 
railway  companies  are  immaterial,  and  may 
be  stricken  out  upon  motion.  Davis  v. 
Chicago  6-  N.  W.  R.  Co.,  46  Iffwa  389,  16 
Am.  Ry.  Rep.  45. 

Where  a  petition  in  an  action  against  a 
railroad  for  personal  injuries  charges  that 
defendant  negligently  and  in  violation  of 
the  city  ordinance  stopped  a  freight  train 
across  a  public  street,  and  that,  while  plain- 
tiff was  attempting  to  cross  the  street  be- 
tween the  cars,  defendant,  without  warning, 
backed  the  train,  causing  plaintiff's  uijuries, 
such  two  alleged  causes  of  action  are  not 
separable  in  the  sense  that  one  only  would 
be  the  proximate  cause  of  the  injury.  Bur- 
ger V.  Missouri  Pac.  R.  Co.,  112  Mo.  238,  20 
5.  W.  Rep.  439. 

In  an  action  against  a  company,  the  com- 
plaint, though  very  vague  and  indefinite  in 
its  terms,  set  forth  in  substance  that  defend- 
ant  made  an  excavation  for  its  road  near  a 
certain  street  and  left  the  same  unguarded, 
and  that  plaintiff  while  walking  along  said 
street  fell  into  the  excavation  and  was 
injured,  although  she  had  used  due  care. 
Held,  that  the  complaint  set  forth  a  cause 
of  action  and  was  not  demurrable.  Rath- 
burn  V.  Burlington  &*  M.  R.  R.  Co.,  19  Am. 
&'  Eng.  R.  Cas.  137.  16  Neb.  441,  20  A^.  W. 
Rep.  390.— Distinguishing  Clary  v.  Bur- 
lington &  M.  R.  R.  Co.,  14  Neb.  232. 

A  railroad,  as  such,  is  not  necessarily  a 
public  highway.  If  a  party's  rights  depend 
on  the  fact  that  such  road  is  a  public  high- 
way, that  fact  must  be  alleged  in  the  dec- 
laration. Murch  V,  Concord  R.  Corp.,  29 
N.  H.  9,  61  Am.  Dec.  631. 

384.  Necessity  of  pleading  ordi- 
iinuce  violated.— If  suit  is  based  on  the 
violation  of  an  ordinance  it  must  be  pleaded. 
Unless  this  is  done  it  is  error  to  instruct  the 
jury  to  find  for  plaintiff  if  the  speed  of  the 
train  exceeded  that  named  in  the  ordinance, 
without  further  submitting  whether  the  rate 
of  speed  was,  under  the  circumstances  in 
proof,  reckless.  The  ordinance,  because 
not  pleaded,  dia  not  make  a  rate  of  s|)eed 


exceeding  five  miles  per  hour  reckless  per 
se.  Nutter  v.  Chicago,  R.  I.  &»  P.  R.  Co., 
22  Mo,  App.  328. 

385.  Plaintlflf  must  show  negli- 
gence on  part  of  company.— The  tracks 
of  a  railway  were  on  a  portion  of  a  turnpike. 
The  employ6  of  a  contractor  repairing  the 
turnpike  was  injured  by  falling  in  an  unfilled 
depression  between  the  ties,  and  being  run 
over  by  the  horses  he  was  driving.  Held, 
that  the  company  was  not  liable,  plain- 
tiff's evidence  showing  an  endeavor  to 
impute  negligence  to  the  company  with 
which  it  was  not  chargeable.  Kelly  v. 
Manayunk&'R.  I.  P.  &*  R.  Co.,  (Pa.)  12  Atl. 
Rep.  598. 

If  a  company  is  authorized  to  lay  rails  in 
public  streets,  it  will  not  be  liable  for 
accidents  resulting  therefrom  unless  it  is 
shown  to  be  guilty  of  negligence  in  laying 
down,  or  in  maintaining  and  operating,  the 
tracks.  Maiettiv.  New  York  &»H.  R.  Co., 
3  E.  D.  Smith  (N.  Y.)  98. 

380.  Contributory  negligence, 
when  a  defense.— Where  one,  not  a  pas- 
senger, but  a  stranger  to  a  railroad  com- 
pany, injured  while  crossing  its  track 
through  the  thoroughfares  of  a  city,  might 
have  escaped  such  injury  by  the  exercise  of 
diligence  such  as  is  reasonably  to  be  expected 
from  the  age  and  intelligence  of  such  person, 
the  company  will  not  be  liable  in  damages 
for  such  injury,  although  it  may  be  charge- 
able with  negligence.  Baltimore  &*  O.  R. 
Co.  V.  Breinig,  25  Md.  378. 

If  plaintiff  was  guilty  of  contributory 
negligence  he  is  not  entitled  to  recover, 
even  though  the  speed  of  the  train  was  in 
violation  of  the  provisions  of  the  ordinance. 
Philadelphia,  W.  &>  B.  R.  Co.  v.  Stebbing, 
19  Am.  &•  Eng.  R.  Cas.  36,  62  Afd.  504. 

Miss.  Code  of  1880,  §  1047,  providing  that 
railroad  companies  shall  be  liable  for  dam- 
ages or  injury  which  may  be  sustained  by 
any  one  from  a  locomotive  or  cars  running 
at  a  greater  speed  than  six  miles  an  hour 
through  any  city,  town,  or  village,  does  not 
impose  absolute  liability  upon  a  company 
for  an  injury  done  by  it  while  violating  this 
statute.  If  such  injury  could  have  been 
avoided  by  the  exercise  of  ordinary  care  on 
the  part  of  the  person  injured,  the  company 
is  not  liable.  Mobile  &-  O.  R.  Co.  v.  Stroud, 
31  Am.  &*  Eng.  R.  Cas.  443,  64  Miss.  784,  2 
So.  Rep.  171.— Following  Vicksburg  &  M. 
R.  Co.  V.  McGowan,  62  Miss.  682.  Re- 
viewing Chicago,  R.  I.  &  P.  R.  Co.  v. 


STREETS  AND   HIGHWAYS   (RAILWAYS  IN),  387-;i8U.         701 


Per 
Co., 


Houston,  95  U.  5.  697.—  Vicksburg  S-  M.  R. 
Co.  V.  McGowan,  62  Miss.  682. 

A  railroad  company  operating  its  road 
through  a  public  and  much-frequented 
street  of  a  city  must  exercise  a  very  high 
degree  of  care  to  prevent  injuries,  and  per- 
sons traveling  such  street,  in  view  of  the 
greater  danger,  must  likewise  be  held  to  the 
exercise  of  greater  caution.  Louisville,  N. 
O,  &•  T.  li.  Co.  V.  French,  69  Miss.  121,  12 
So.  Kep.  338. 

A  traveler  and  a  company  when  using  a 
public  highway  in  common  must  each  look 
out  for  the  presence  of  the  other;  one  to 
avoid  being  injured  and  the  other  to  avoid 
inflicting  injury,  Hanlon  v.  Missouri  Pac. 
R.  Co.,  104  il/<;.  381.  16  S.  W.  Rep.  233. 

Where  a  long  freight  train  stops  on  a 
street,  a  signal  by  bell  or  whistle  on  the 
engine  may  not  be  suflicient  warning  of  an 
intention  to  back  the  train  over  a  crossing; 
but  a  failure  to  give  such  signal  will  not 
relieve  persons  who  are  crossing  the  street 
from  the  obligation  to  exercise  proper  care 
and  watchfulness.  Eaton  v.  Erie  R.  Co.,  51 
A'.  Y.  544,  5  Am.  Ry.  Rep.  524.— Follow- 
ing Havens  v.  Erie  R.  Co.,  41  N.  Y.  296. — 
Applied  in  Weber  v.  New  York  C.  &  H. 
R.  R.  Co.,  58  N.  Y.  451 ;  Finklestein  v.  New 
York  C.  &  H.  R.  R.  Co.,  41  Hun  34,  2  N.  Y. 
S.  R.  680. 

Where  a  collision  is  caused  by  the  con- 
curring negligence  of  both  parties,  neither 
can  maintain  an  action  against  the  other  to 
recover  damages.  Owen  v.  Hudson  River 
R.Co.,  2Bos7v.  {N.  y.)  374. 

387.  What  amouuts  to  contribu- 
tory uegrligence.'^  —  One  about  to  cross 
a  railroad  track  on  a  street  is  not  chargeable 
with  negligence  because  he  fails  to  look 
along  the  track,  when  his  view  is  cut  off  by 
obstructions  left  thereon  by  the  company. 
McGuire  v.  Hudson  Rrver  R.  Co.,  2  Daly 
(N.  F.)76. 

Plaintiff,  who  was  driving,  found  a  street 
crossing  obstructed  by  a  standing  train,  and 
asked  a  man  who  had  just  left  the  train  if 
it  would  be  safe  for  him  to  pass  in  the  rear 
of  the  train.  He  was  advised  not  to  do  so, 
as  the  train  might  start  at  any  moment,  but 
it  did  not  appear  that  such  person  was  in 
the  employ  of  the  company.  After  waiting 
a  few  minutes  plaintiil  alighted  and  at- 
tempted to  lead  his  horse  across,  when  the 

*  See  also  Crossings,  Iniurus  to  Persons, 
nc,  AT,  325 ;  post,  412. 


train  was  suddenly  backed  and  it  struck  and 
injured  the  horse  and  carriage.  Held,  that 
plaintiff  was  not  guilty  of  contributory  neg- 
ligence, as  a  matter  of  law.  His  conduct 
was  for  the  jury.  Eaton  v.  Erie  R.  Co.,  51 
A'.  Y.  544,  4  Am.  Ry.  Rep.  334 —Quoted 
IN  Duame  v.  Chicago  &  N.  W.  R.  Co.,  35 
Am.  &  Eng.  R.  Cas.  416,  72  Wis.  523. 7  Am. 
St.  Rep.  879,  40  N.  W.  Rep.  394. 

388.  Itecovery  uotwitliHtandiiiff 
coutribiitory  uegligoucc— A  company 
is  liable  for  an  injury  caused  by  its  servants, 
notwithstanding  plaintiff's  contributory  neg- 
ligence in  being  on  its  track,  if  the  observ- 
ance by  it  of  a  city  ordinance  in  force  would 
have  enabled  its  servants  to  have  seen 
plaintiff  in  time  to  have  avoided  the  acci- 
dent. Kelly  V.  Union  R.  <S-  T.  Co,,  35  Am. 
&»  Eng.  R.  Cas.  396,  95  Mo.  279,  14  West. 
Rep.  721,  8  5.  W.  Rep.  420.— Explained 
AND  QUALIFIED  IN  DIauhi  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  105  Mo.  645.  Followed  in 
Pope  V.  Kansas  City  Cable  R.  Co.,  43  Am. 
&  Eng.  R.  Cas.  290,  99  Mo.  400,  12  S.  W, 
Rep.  891.  Reviewed  in  Igo  v.  Chicago  & 
A.  R.  Co.,  38  Mo.  A  pp.  377. 

389.  Evidence,  generally.  —  A  pri- 
vate corporation  is  liable  like  any  other 
private  person  making  a  specially  author- 
ized but  extraordinary  use  of  a  public  street. 
Such  uses  of  public  streets  by  private  per- 
sons are  lawful  only  because  specially  au- 
thorized, and  while  so  conducted  as  to  be 
harmless  to  others,  but  they  become  tres- 
passes whenever  injury  occurs,  whether 
resulting  from  negligence  or  not.  Evidence, 
therefore,  by  such  a  defendant  to  show  all 
possible  care  and  diligence,  if  unaccompa- 
nied by  any  assertion  of  responsibility  on 
the  part  of  another,  or  of  want  of  care  on 
the  part  of  the  person  injured,  should  be 
excluded  as  immaterial  to  the  issue.  27»- 
trict  of  Columbia  v.  Baltimore  &*  P.  R.  Co., 
4  Am.  &^  Eng.  R.   Cas.  1 79,  1  Mackey  (JD. 

C.)  314. 

It  is  not  necessary,  in  an  action  for  inju- 
ries  received  while  on  the  street,  to  show  a 
formal  acceptance  of  the  dedication  of  the 
ground  to  public  use.  If  the  street  on 
which  the  accident  occurred  had  been  ded- 
icated to  public  use  as  a  street,  and  was  in 
use  as  such  at  the  time  of  the  injury,  de- 
fendant company's  right  thereon  is  not 
exclusive.  Otto  v.  St.  Louis,  /.  M.  &*  S.  R. 
Co.,  12  Mo.  App.  168. 

A  corporation  adapting  and  using  a  public 
street  for  its  peculiar  method  of  transpor- 


u\ 


m 


702        STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  300-302. 


t      ! 


•t  i 


pis' 


tation  is  in  duty  bound  to  an  exact  and 
continuous  inspection,  in  order  to  prevent 
its  structures  from  becoming  a  nuisance. 
Hence,  it  is  never  necessary  to  prove  the 
duration  of  a  defective  condition,  as  raising 
an  inference  of  notice  to  the  corporation  by 
lapse  of  time.  Keittl  v.  St.  Louis  C,  &* 
W.  Ji.  Co.,  28  Mo.  App.  657.— Quoted  in 
Griveaud  v.  St.  Louis  C.  &  W.  R.  Co.,  33 
Mo.  App,  458. 

300.  Ordinances  as  evidence- 
Proof  of  ordinance.  —  In  an  action  on 
the  case  to  recover  for  an  injury  for  running 
a  train  in  a  city  at  a  prohibited  rate  of 
■peed,  the  declaration  averred  that  defend- 
ant neglected  to  ring  a  bell,  or  sound  a 
whistle,  and  otherwise  carelessly  conducted 
its  train  by  not  slacking  the  speed,  and  in 
not  giving  warning  of  its  approach.  Held, 
that  under  this  averment  the  ordinance  of 
the  city,  regulating  thn  speed  of  trains,  could 
be  given  in  evidence.  Chicago,  R,  I.  &*  P. 
It.  Co.  v.  Jieitfy,  66  ///.  43. 

In  a  suit  against  a  company  to  recover  for 
the  killing  of  an  animal  within  an  incorpo- 
rated town,  on  the  ground  of  violation  of 
an  ordinance,  in  running  its  train  at  a  pro- 
hibited rate  of  speed,  it  is  indispensable  to 
a  recovery  that  plaintiff  should  prove  that 
the  ordinance  was  in  force  at  the  time  of 
the  alleged  accident.  Chicago  &*  A.  R.  Co. 
V.  EngU,  76  ///.  317. 

Where  the  suit  is  for  injuries  received  in 
a  street  on  the  grounr*  that  the  train  caus- 
ing the  jnjury  was  running  at  a  higher  rate 
of  speed  than  that  authorized  by  an  ordi- 
nance of  the  city,  such  ordinance  must  be 
put  in  evidence  and  made  a  part  of  the  rec- 
ord. Chicago  &-  A^  IV.  R.  Co.  v.  Schumi- 
hwiky,  8  ///.  App.  613. 

In  an  action  against  a  company  for  an  in- 
jury alleged  to  have  been  caused  by  ne<>li- 
gence  in  running  a  train  in  a  city,  an  ordi- 
nance of  the  city  regulating  the  running  of 
trains,  their  speed,  the  ringing  of  the  bell, 
etc.,  and  the  violation  of  the  ordinance,  may 
be  shown  in  evidence  as  matter  to  be  con- 
sidered in  deciding  the  question  of  negli- 
gence. St.  Louis  &•  S,  E.  R.  Co.  v.  Alathias, 
50  Imf.  65,  8  Am.  Ry.  Rep.  381.— Followed 
IN  Pennsylvania  Co.  v.  Horton,  132  Ind.  189. 

301.  Sufficiency  of  evidence.  —  111. 
Act  of  February  16,  1865,  which  renders 
railroad  companies  liable  for  damages  re- 
sulting from  running  their  trains  within 
the  corporate  limits  of  cities  and  towns  at 
a  greater  speed  than  tliat  allowed  by  the 


ordinances,  does  not  make  the  fact  that 
stock  was  killed  in  the  corporate  limits  of 
a  town  evidence  that  the  train  was  running 
at  a  speed  beyond  the  limit  of  the  ordinance, 
but  simply  makes  proof  of  the  violation  of 
the  ordinance,  and  that  the  injury  occurred 
while  the  train  was  so  running  at  the  pro- 
hibited rate  of  speed,  presumptive  evidence 
of  negligence,  rendering  the  company /r/m<i 
facie  liable.  Chicago  &*  A.  R.  Co.  v.  Etigle, 
58  ///.  381. 

Proof  of  an  ordinance  requiring  railway 
companies  to  ring  a  bell  continuously  while 
their  trains  are  in  motion  within  the  city, 
and  the  testimony  of  witnesses  that  no  bell 
was  rung,  or  other  warning  given,  until  after 
a  person  was  struck,  are  sufficient  basis  for 
an  inference  of  negligence.  Chicago  &*N. 
W.  R.  Co.  V.  Dunleavy,  39  Am.  &*  Eng,  R. 
Cas.  381,  129  ///.  132,  22  N.  E.  Rep.  15: 
affirming  2;  ///.  App.  438. 

A  jury  might  well  consider  a  frog-like 
arrangement  of  a  movable  rail  on  a  city 
sidewalk  faulty  construction,  and  the  leav- 
ing a  space  between  the  fixed  rail  and  the 
planking,suflicient  to  catch  and  hold  a  foot, 
culpable  negligence.  Toledo,  St.  L.  &*  K. 
C.  R.  Co.  V.  Clark,  49  ///.  App.  17. 

Plaintiff,  a  woman,  had  just  left  a  steam- 
boat with  some  200  other  persons,  and  while 
proceeding  along  a  pier  was  struck  by  a 
train  of  freight  cars,  loaded  with  iron  and 
running  down  a  heavy  grade  at  the  rate  of 
ten  to  fifteen  miles  an  hour,  without  any 
locomotive  attached.  Held,  sufficient  to 
show  gross  negligence  on  the  part  of  the 
company.  Malmsten  v.  Marquette,  H.  &* 
0.  R.  Co.,  8  Am.  6*  Eng.  R.  Cas.  291,  49 
Mich.  94,  13  jV.  IV.  Rep.  373. 

302.  Burden  of  proof.— By  express 
statutory  provisions  (Ala.  Code  of  1876,  § 
1700),  when  an  injury  to  person  or  prop- 
erty is  caused  by  the  locomotive  or  cars  of 
a  railroad,  within  the  limits  of  any  city, 
town,  or  village,  whether  incorporated  or 
not,  the  onus  is  on  the  company  to  repel 
the  presumption  of  negligence,  by  showing 
that  all  the  statutory  precautionary  signals 
were  given,  or  that  a  compliance  witli  the 
statutory  regulations  would  not  have  availed 
to  prevent  the  injury,  or  otherwise  to  relieve 
itself  of  the  imputation  of  negligence. 
Georgia  Par.  R.  Co.  v.  Blanton,  84  Ala.  1 54. 
4  So.  Rep.  621.— Quoting  South  &  N.  Ala. 
R.  Co.  V.  Thompson,  62  Ala.  494. 

While  standing  in  a  street  plaintiff  was 
injured  by  a  door  falling  from  a  freight  car 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  803, 3U4.        701 


that 
of 
fling 
nee, 
n  of 
irred 


•ngle. 


which  was  moving  on  the  street.  There 
was  no  evidence  to  show  what  caused  it  to 
fall,  except  that  the  fastenings  had  become 
insufficient,  probably  by  wear  or  brealcage. 
Hild,  that  mere  proof  of  the  accident  did 
not  raise  a  presumption  of  negligence  on 
the  part  of  the  company,  so  as  to  cast  on  it 
the  burden  of  proof.  Plaintifl  must  prove 
that  the  defect  causing  the  accident  came 
to  the  knowledge  of  the  company  before 
the  accident,  or  existed  for  such  a  time  that 
knowledge  should  be  presumed.  Cast  v. 
Chicago,  R.  I.  &»  P.  R.  Co.,  19  Am.  &*  Eng. 
R.  Cat.  142,  64  Iowa  762,  21  A'.  IV.  Rep.  30. 
—Distinguished  in  Timins  v.  Chicago,  R. 
I.  &  P.  R.  Co..  31  Am.  &  Eng.  R.  Cas.  541, 
72  Iowa  94,  33  N.  W.  Rep.  379. 

393.  What  instriictionsto  the  Jury 
are  proper.  —  A  court  may  assume  as 
facts  a  state  of  things  established  by  un* 
contradicted  evidence,  and  instruct  the 
jury  accordingly.  So  where  uncontradicted 
evidence  showed  that  a  train  was  moving 
on  a  street  in  a  city  at  a  time  and  place 
where  persons  might  reasonably  be  expected 
to  be  passing,  it  was  correct  for  the  court 
to  assume  that  these  conditions  did  exist, 
and  to  instruct  the  jury  that  it  was  the  duty 
of  those  in  charge  of  the  train  to  give  neces* 
sary  warning  of  its  approach.  Louisville  &* 
N.  R.  Co.  V.  Morris,  (A>.)  20  S.  W.  Rep.  539. 
—Approving  Kentucky  C.  R.  Co.  v.  Smith, 
93  Ky.  449,  20  S.  W.  Rep.  392 ;  Louisville, 
C.  &  L.  R.  Co.  V.  Case,  9  Bush  (Ky.)  736. 

In  an  action  to  recover  for  injuries  sus- 
tained through  plaintiff's  foot  catching  in 
the  unguarded  frog  of  a  switch  in  a  public 
street  in  which  there  are  no  sidewalks,  it 
is  not  error  for  the  court  to  charge  that 
"  the  primary  purpose  and  design  of  a  pub- 
lic street  in  a  city  is  for  vehicles  and  per- 
sons to  pass  over  and  travel  upon,  and  the 
use  of  such  street  for  railroad  tracks  and 
trains  the.-eon,  when  permitted,  is  to  a  cer- 
tain extent  and  in  a  limited  sense  sub- 
servient to  the  original  design  of  such 
streets  for  travel  over  and  upon  them," 
though  the  court  does  not  define  the  words 
"  to  a  certain  extent  and  in  a  limited  sense." 
Gulf,  C.  &*S.  F.  R.  Co.  v.  Walker,  37  Am. 
&»  Eng.  R.  Cas.  342,  70  Tex.  126,  7  S.  IV. 
Rep.  831. 

In  such  an  action,  an  instruction  that  "a 
railroad  company  using  a  public  street  in 
the  city  for  its  track  and  trains  thereon 
must  use  all  the  care  and  precaution  that  it 
reasonably  could  and  should  to  prevent  ac* 


cidents  to  any  persons  using  such  streets" 
properly  instructs  the  jury  as  to  the  degree 
of  care  required  of  the  company.    Oul/,  C. 
5-  S.  F.  R.  Co.  V.  Walker,  37  Am.  6-  Eng. 
R.  Cas.  342,  70  Tex.  126,  7  S.  W.  Rep.  831. 
304.  What    iiiHtructloiiH  arc   im- 
proper. —  Plaintifl  sued  to  recover  dnm- 
;.  res  for  personal  injuries  caused  through  the 
•leged  negligence  of  defendant's  servants 
while  cutting  off  the  battered  end  of  a  rail 
with    a   cold   chisel.    While   plaintiff  was 
standing  on  the  street  watching  the  opera- 
tion, a  piece  of  iron  or  steel  from  the  rail,  or 
from  the  hammer  used  in  cutting  it,  struck 
his  eye,  causing  injuries  which  resulted  in 
the  loss  of  that  member.    There  was  no 
evidence  in  the  record  to  show  that  the 
act  of  cutting  off  the  battered  end  of  a  rail 
with  a  cold  chisel  in  the  manner  adopted 
by  the  company  would  result  in  throwing 
pieces  or  chips  of  iron  through    the   air 
with  such  velocity  as  to  injure  a  bystander. 
Held,  that,  as  there  was  no  evidence  to  sus- 
tain such  an  instruction,  it  was  error  to 
charge  the  jury  that  if  defendant's  servants 
were  cutting  an  iron  rail  with  a  cold  chisel, 
and  were  doing  this  in  such  a  manner  as  to 
throw  pieces  or  chips  of  iron  through  the 
air  with  great  velocity,  so  as  to  endanger 
the  safety  of  persons  on  the  street,  and  that 
if  the  jury  believed,  from  the  evidence,  that 
this  was  negligence,  and  that  plaintifl  was 
injured  thereby,  the  jury  must  return  a  ver- 
dict for  plaintiff.     Chicago,  M.  &•  St.  P.  R. 
Co.  v.  Harper,  {III.)  37  Am.  &>  Eng.  R.  Cas. 
549,  igN.  E.  Rep.  31. 

Miss.  Code  of  1880,  §  1047,  proi  ii^cs  that 
"any  railroad  company  having  the  right  of 
way  may  run  locomotives  and  cars  by  steam 
through  towns,  cities,  and  villages  at  the 
rate  of  six  miles  an  hour  and  no  more ;  and 
if,  in  passing  through  any  town,  city,  or 
village,  any  locomotive  or  car  should  be  run 
at  a  greater  rate  of  speed,  the  company  shall 
pay  one  hundred  dollars,  to  be  recovered  by 
suit  in  the  name  of  such  town,  city,  or  vil- 
lage, and  for  its  use;  and  the  company 
shall,  moreover,  be  liable  for  any  damages 
or  injury  which  may  be  sustained  by  any 
one  from  such  locomotive  or  cars  while 
they  are  running  at  a  greater  speed  than  six 
miles  an  hour  through  any  city,  town,  or 
village."  In  an  action  by  an  individual  for 
damages  for  an  injury  inflicted  by  a  com- 
pany while  violating  this  statute,  it  is  error 
for  the  court  to  give  for  plaintiff,  without 
restriction,  qualification,  or  explanation,  an 


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704        STREETS   AND    HIGHWAYS   (RAILWAYS   IN),  300, 3U0. 


instruction  in  tlie  language  of  the  statute 
(omitting  the  clause  prescribing  a  penalty 
recoverable  by  a  city,  town,  or  villuge),  bc> 
cause  sucli  instruction  is  calculated  to  mis- 
lead the  jury  and  deprive  the  defendant, 
contrary  to  the  purpose  of  the  statute,  of 
the  defense  of  contributory  negligence  on 
the  part  of  plaintifT.  Vic/csburg  &*  M.  K. 
Co.  V.  McGffwan,  62  Miss.  682.— Approved 
IN  Illinois  C.  R.  Co.  v.  Jordan,  63  Miss.  458. 
FoLLuwKD  IN  Mobile  &  O.  U.  Co.  v.  Stroud, 
31  Am.  &  Eng.  R.  Cas.  443,  64  Miss.  784>  2 
So.  Rep.  171.  Quoted  in  Troy  v.  Cape 
Fear  &  Y.  V.  R.  Co.,  34  Am.  &  Eng.  R.  Cas. 
•  3.  99  N.  Car.  298,  6  S.  E.  Rep.  77,  6  Am. 
St.  Rep.  521. 

305.  Iiistriictloiis  un  question  of 
contributory  uci;liguuce.  —  Plaintiff 
sued  for  injuries  to  liis  stage  caused  by 
colliding  with  defendant's  horse-car.  The 
company  claimed  thai  the  collision  occurred 
through  the  negligence  of  the  driver  of  the 
stage,  but  there  was  evidence  tending  to 
show  negligence  on  the  part  of  both  parties. 
Held,  that  there  could  be  no  recovery,  and 
the  jury  siiould  have  been  so  instructed. 
Owi'H  V.  Hudson  Kiver  R.  Co.,  2  Bosw.  (N. 
^'■)  374-  —  Quoting  Johnson  v.  Hudson 
River  R.  Co.,  5  Duer  (N.  Y.)  27. 

In  such  case,  it  is  error  to  instruct  the 
jury  tiiat  if  ihey  "  believe  that  the  brakes 
of  the  car  were  not  in  good  or  sufficient 
working  order,  so  that  they  were  insuffi- 
cient for  the  purpose  of  checking  the 
progress  of  the  car,"  and  if  they  "  shall  be 
satisfied  that  the  driver  of  the  car  had  time, 
after  he  discovered  the  dangerous  posi- 
tion of  the  stage,  to  have  avoided  the  colli- 
sion by  the  application  of  the  brakes,  if 
they  had  been  in  order,  then  plaintiff  will 
be  entitled  to  recover,  notwithstanding 
plaintiff's  driver  was  guilty  of  imprudence 
or  carelessness  in  getting  into  such  a  posi- 
tion." Owen  v.  Hudson  River  R,  Co.,  2 
Bosw.  {N.  y.)  374. 

3.  Recovery  Over  by  City  or  Town.* 

300.  Riglit  of  action  over,  gener- 
ally.!—  A  municipal  corporation  is  liable 
to  one  injured  by  defects  in  the  street,  or 
by  obstructions  placed  therein  by  individ- 
uals, but    may    maintain    an    action  over 

•  See  also  ante,  103,  200. 

f  Municipality  liable  for  defect  in  street  may 
sue  party  through  whose  fault  defect  occurred. 
See  note,  19  Am.  &  Eno.  R.  Cas.  235. 


against  the  individual  who  wrongfully  ob< 
Btructed  the  street.  Chicago  v.  Robbins,  a 
Black  (U.  5.)  418.— Disapproved  in  Bidd 
V.  Norfolk  &  W.  R.  Co.,  87  Va.  711.  FoL' 
LOWED  IN  Howard  v.  Delaware  &  H.  Canal 
Co.,  40  Fed.  Rep.  19J.  Reviewed  IN  Dis- 
trict of  Columbia  v.  Baltimore  &  P.  R. 
Co.,  4  Am.  &  Eng.  R.  Cas.  179,  i  Mackey 
(D.  C.)  314. 

Where  a  municipality  is  mulcted  in  dam- 
ages for  injuries  received  by  a  party  in  fall- 
ing into  an  excavation  made  ljy  a  railroad 
company  in  one  of  its  streets,  the  latter  is 
liable  over  for  the  amount  paid  ;  and  it  seem* 
that  tliis  would  be  so  even  if  the  company 
had  been  employed  by  the  municipality  to 
excavate  the  work,  or  even  if  the  contractor 
for  the  work  had  agreed  with  the  company, 
either  by  stipulation  or  effect  of  law,  to 
become  answerable  if  an  accident  occurred. 
District  of  Columbia  v.  Baltimore  6-  /*.  R, 
Co.,  4  Am.  &■»  Eng.  R.  Cas.  179,  i  Mackey 
(D.  C.)  314.— Reviewing  Chicago  v.  Rob- 
bins,  2  Black  (U.  S.)  427:  Robbins  v.  Chi- 
cago, 4  Wall.  (U.  S.)  672. 

The  fact  that  a  municipality  grants  to  a 
private  person  the  right  to  engage  in  ex- 
traordinary work  upon  its  streets  does  not 
deprive  the  municipality  of  the  right  to  re- 
cover over  against  such  person  the  amount 
which  it  (the  municipality)  has  been  com- 
pelled to  pay  to  a  citizen  injured  by  reason 
of  such  work.  District  of  Columbia  v.  Balti- 
more &>  P.  R.  Co.,  4  Am.  &*  Etig,  R.  Cas. 
179,  I  Mackey  (D.  C.)  314.  —  APPROVINO 
Baltimore  &  P.  R.  Co.  v.  Reaney,  42  Md.  131. 

Nor  will  the  fact  that  the  action  was 
brought  by  the  injured  party  against  the 
municipality  instead  of  directly  against  the 
person  engaged  in  such  work  enable  the 
latter,  in  an  action  over  against  it,  to  set  up 
absence  of  negligence  as  a  defense  on  the 
ground  that  the  municipality  granted  per- 
mission to  do  the  work.  The  effect  of 
such  a  grant  is  only  to  prevent  the  grantee 
from  being  a  trespasser  in  the  bare  act  of 
breaking  up  the  street;  but  it  gives  no  ex- 
emption from  liability  for  injury  resulting 
to  others  in  the  execution  of  the  work. 
District  of  Columbia  v.  Baltimore  &*  P.  R. 
Co.,  4  Am.  &»  Eng.  R.  Cas.  179,  i  Mackey 
(D.  C.)  314. 

When  a  municipality  is  obliged  to  re- 
spond in  damages  to  a  person  injured  by  a 
defect  in  a  public  street,  which  defect  is  at 
a  point  where  the  street  is  used  as  the  right 
of  way  of  a  railroad  and  is  caused  by  tlte 


STREETS  AND    UlUIIWAYS   (RAILWAYS   IN),  307-100.         706 


negligent  conduct  of  the  agents  of  the  rail* 
road  company,  which  ii  bound  to  keep  tlie 
street  In  repair,  the  municipality  has  a  right 
to  recover  from  theconipany  the  amount  paid 
out  by  It.  IVtstern  &*  A.  K.  Co,  v,  Atlanta, 
19  Am.  &*  E%,  K.  Cas.  233,  74  Ga.  774. 

And  for  the  costs  and  expenses  reasonably 
and  fairly  incurrccf  in  a  suit  against  it  by 
:he  person  injured.  Vtaait  v.  Pttwbscot  Ji. 
Co.,  49  Me.  119. 

Where  a  company  removes  a  post  without 
filling  the  hole,  and  a  traveler  on  a  highway 
is  injured  by  falling  into  it,  and  recovers 
damages  against  the  town,  the  company  will 
be  liable  over  to  the  town.  Wobitrn  v. 
Boston  &^  L.  R.  Corp.,  109  Mass.  283,  6  Am. 
Ry.  Rtp.  270.— Following  Lowell  v.  Bos- 
ton &  L.  R.  Corp.,  23  Pick.  (Mass.)  24. 

There  is  no  necessary  privity  between  the 
traveler  and  any  one  but  the  towns,  as  to 
the  sufficiency  of  the  highways.  The  towns 
must  look  for  redress  to  those  who  ob- 
struct their  highways.  Batty  v.  Duxbury, 
34  Vt.  155.— Quoting  Willard  v.  Newbury, 
32  Vt.  460. 

397.  Effect  of  notice  to  company 
and  request  to  defend.  —  In  a  suit 
brought  by  a  municipal  corporation  to  re- 
cover damages,  which  it  has  been  compelled 
by  suit  to  pay  to  one  who  has  been  injured 
by  a  defect  in  the  streets,  and  which  injury 
occurred  on  a  railroad  crossing,  the  record 
of  the  former  suit  is  admissible  if  the  rail- 
road company  had  notice  of  the  former 
suit  and  was  requested  by  the  municipal 
corporation  to  come  forward  and  defend 
the  same.  Western  &>  A.  R.  Co.  v.  Atlanta, 
19  Am.  Sf  Eng.  R.  Cas.  233,  74  Ga.  774. 

When  in  such  case  the  municipality  has 
given  notice  to  the  railroad  company  to 
appear  and  defend,  but  it  has  failed  to  do 
so,  the  judgment  obtained  against  the  mu- 
nicipality is  conclusive  as  to  the  right  of 
the  injured  party  to  recover  from  the  munic- 
ipality, and  as  to  the  amount  which  the 
municipality  is  entitled  to  recover  from  the 
company.  Western  &•  A.  R.  Co.  v.  Atlanta, 
19  Am.  &*Eng.  R.  Cas.  233,  74  Ga.  774. 

In  a  suit  of  the  municipality  against  the 
company  to  recover  damages  in  such  case, 
the  judgment  against  ihe  municipality  and 
the  notice  given  by  it  to  the  company  may 
be  offered  in  evidence.  Western  &*  A.  R. 
Co.  V.  Atlanta,  19  Am,  &*  Eng.  R.  Cas.  233, 
74  Ga.  774. 

A  company  cannot  avoid  the  effect  of 
•uch  a  judgment  on  the  ground  that  it  did 
7  D.  R.  D.— 45 


not  receive  the  notice  until  the  day  before 
the  trial,  it  appearing  that  one  of  its  direct* 
ors  was  present  at  the  trial  and  took  notes, 
and  that  it  made  no  request  for  a  continu- 
anro  or  postponement  of  the  trial.  Veatit 
/.  i^enobscot  R.  Co.,  ^^  Me.  119. 

Wliere  a  company  has  been  notified  of 
the  pcdency  of  a  suit  a^^ainst  a  town,  for 
an  injury  occasioned  by  an  alteration  of  the 
highway  as  a  railroad  crossing,  and  re- 
quested by  the  town  to  defend  it,  the  com- 
pany  is  bound  by  the  judgment,  which  is 
conclusive  against  it,  as  to  the  cause  of  the 
injury  and  extent  of  the  damage,  whether 
it  appeared  in  the  case  or  not.  Veazie  v. 
J'enobscot  R.  Co    .\g  Me.  119. 

308.  Successive  Huits  for  same 
neglect. — A  town  is  not  precluded,  by  one 
recovery  a(>ainst  a  railroad  company  for 
failing  to  restore  a  highway,  from  all  future 
recovery  against  it  for  damages  sustained 
by  reason  of  the  same  neglect,  if  the  damage 
is  several.  Newbury  v.  Connecticut  6*  P, 
R.  R.  Co.,  2$  Vt.  377. 

Defendant  company  failed  to  restore  a 
highway,  and  a  husband  and  wife  who  were 
driving  on  the  highway  were  both  injured. 
The  husband  recovered  against  the  town  for 
injuries  to  himself  and  carriage,  and  the 
town  in  turn  recovered  from  the  company 
the  amount  paid.  Subsequently  the  hus- 
band brought  an  action  against  the  town 
for  the  injury  to  his  wife,  and  recovered. 
Held,  that  the  first  recovery  by  the  town 
against  the  company  would  not  prevent  a 
second  for  damages  to  the  wife.  Newbury 
v.  Connecticut  &*  P.  R.  R.  Co.,  2$  Vt.  yjj. 

Each  successive  recovery  against  the  town 
constitutes  a  perfect  cause  of  action  against 
the  company,  and  the  fact  that  the  injury 
was  at  the  same  time,  in  the  same  carriage, 
and  under  the  same  circumstances,  makes 
no  difference.  Newbury  v.  Connecticut  &* 
P.  R.  R.  Co.,  25  Vt.  377. 

300.  Action  on  company's  promise 
to  repay  damages  recovered  against 
town.  —  Where  a  municipality  has  been 
compelled  to  pay  damages  for  a  person  in- 
jured through  a  defective  highway,  it  may 
maintain  an  action  of  debt  against  a  rail- 
road company  which  caused  the  defect,  upon 
its  promise  to  repay  the  damages.  Portland 
v.  At/antic  <&*  St.  L.  R.  Co.,  66  Me.  485. 

400.  Pleading.  —  Where  a  city  was 
sued  and  judgment  recovered  against  it  for 
injuries  resulting  from  a  defect  in  a  side- 
walk, and  it  appeared  that  the  sidewalk  was 


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706        STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  401-403. 


within  the  right  of  way  of  a  railroad  coin< 
pany,  which  sidewalk  the  company  was 
bound  to  maintain  under  the  statute,  and 
the  declaration  failed  to  show  a  neglect  of 
duty  on  the  part  of  the  company  as  to  the 
maintenance  of  the  sidewalk,  a  demurrer  to 
it  is  properly  sustained.  Bloomington  v. 
Illinois  C.  R.  Co.,  49  ///.  App.  IJ9. 

401.  Limits  of  recovery  over, — 
Under  Mass.  Act  of  1786,  ch.  81,  a  traveler 
recovered  double  damages  against  a  town 
for  an  injury  sustained  by  reason  of  defend- 
ant company  failing  to  protect  a  cut  made 
in  a  highway  in  constructing  its  track. 
Htld,  that  the  town  was  only  entitled  to 
recover  of  defendant  single  damages,  and 
could  not  recover  the  costs  and  expenses  of 
the  action  against  ths  town,  it  not  appear- 
ing that  such  action  was  defended  at  the 
request  of  defendant,  or  for  its  benefit. 
Ijjwtll  V.  Boston  &*  L.  R.  Corp.,  23  Pick. 
{Afass.)  24,  —  Criticised  in  Duxbury  v. 
Vermont  C.  R.  Co.,  26  Vt.  751.  Followed 
IN  Woburn  v.  Boston  &  L.  R.  Corp.,  109 
Mass.  283. 

402.  Canadian  rule.  —  Plaintiff  sued 
a  municipal  corporation  and  a  railway  com- 
pany for  damages;  the  corporation  in  its 
defense  claimed  indemnity  or  relief  over 
against  the  company,  but  the  company  did 
not  answer  the  pleading,  and  no  order  was 
made  or  applied  for  before  or  at  the  trial 
to  have  the  question  determined ;  judgment 
was  given  for  plaintiff  against  the  corpora- 
tion, but  nothing  was  decided  either  in 
fav  ■  of  or  against  the  company.  After  the 
judgment  had  been  affirmed  by  a  divisional 
court,  the  corporation  applied  to  the  trial 
}v*Z^  for  an  order  under  rule  328  to  have 
the  question  between  it  and  the  company 
determined.  Quart,  whether  there  was 
power  under  the  rules  to  make  the  order. 
MtaJv,  Etobicokt  Tp.,  13  Ont.  Pr.  341. 

rm.    0B8TBV0TI0NS  AND  ENOBOACHHXHTS. 
.1.  Liability  for. 

403.  In  general.*— Where  a  railroad 
parses  along  instead  of  across  a  highway,  it 
roust  be  so  constructed  as  not  to  destroy  or 

*  Action  for  the  obstruction  of  a  public  high- 
way, see  note,  33  Am.  &  £ng.  R.  Cas.  82. 

Obstructing  highways  by  railroads.  Rights 
and  duties  of  companies,  ^ee  $6  Am.  &  r.NO. 
R.  Cas.  646,  abstr. 

Company  may  be  authorized  to  obstruct  high- 
my,  see  note,  la  L.  R.  A.  iij. 


obstruct  the  latter,  or  prevent  its  use  by  the 
public.  Palatka  &*  I.  R.  R.  Co.  v.  State,  32 
Am.  S*  Eng.  R.  Cas.  191,  23  Fla.  546, 1 1  Am. 
St.  Rep.  395,  3  So.  Rep.  158. 

A  company,  relying  upon  a  resolution  of 
the  common  council  of  a  city  vacating,  or 
allowing  the  closing  of,  a  portion  of  a  public 
street,  must  see  that  such  resolution  or  or- 
der  has  been  adopted  by  the  required  vote, 
and  entered  upon  the  record  of  the  pro- 
ceedings of  such  council.  If  such  company 
closes  up  or  obstructs  a  street  not  legally 
vacated,  it  may  be  held  liable  for  the  ob- 
struction. St.  Louis,  A.  &*  T.  H.  R.  Co.  v. 
Belleville,  32  Am.  S-  Eng.  R.  Cas.  278,  122 
///.  376,  12  N.E.  Rep.  680, 10  fVest.  Rep.  605. 

A  permanent  or  temporary  occupancy  of 
a  highway  by  cars  is  prima  facie  unlawful. 
Accordingly,  the  act  of  a  company  in 
placing  a  hand-car  on  a  highway  is  unlaw- 
ful. Ohio  <S-  M.  R.  Co.  v.  Trowbri^e,  45 
Am.  d»  Eng.  R.  Cas.  200,  126  Ind.  391,  26 
A^.  E.  Rep.  64. 

Statutory  authority  to  construct  a  rail- 
road, and  permission  from  the  municipal 
authorities  to  use  certain  streets,  only  give 
to  the  company  authority  so  to  manage  and 
control  the  streets  as  not  unlawfully  to  pre- 
vent their  use  as  highways.  It  cannot  use 
them  in  such  a  manner  as  to  injure  or 
destroy  private  property  abutting  on  the 
streets  without  condemnation  or  recom- 
pense. Riedinger  v.  Marquette  6-  W.  R. 
Co.,  29  Am.  &*  Eng.  R.  Cas.  611,  62  MicA. 
29,  28  N.  IV.  Rep.  77$. 

The  grant  to  a  company  of  a  mere  right 
of  way  over  a  public  street  in  a  city  or 
town  will  not  authorize  the  placing  of  any 
obstructions  in  the  street,  such  as  will  ren- 
der it  useless  as  a  street.  For  the  purpose 
of  establishing  depots,  depot  yards,  or  other 
structures,  for  the  convenience  or  business 
of  the  company,  ground  must  be  procured 
not  already  dedicated  to  uses  inconsistent 
with  such  purposes.  Lackland  v.  North 
Mo.  R.  Co.,  31  Mo.  180.— Reviewing  Tate 
V.  Ohio  &  M.  R.  Co.,  7  Ind.  479.— Dis- 
tinguished IN  Porter  v.  North  Mo.  R.  Co., 
33  Mo.  128. 

Where  plaintifl  has  a  right  to  use  a  road 
over  a  right  of  way  of  a  railroad  corpora- 
tion, the  corporation  has  no  right  to  obstruct 
it  when  not  necessary.  IVilley  v.  Norfolk 
Southern  R.  Co.,  96  N.  Car.  408,  1  S.  E. 
Rep.  446. 

Where  a  railroad  charter  gives  to  a  com- 
pany  the  right  to  construct  its  track  on  s 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  404. 


707 


street  so  as  to  cause  as  little  obstruction  as 
possible,  it  has  the  implied  power  to  use  the 
track  when  built,  and  no  obstruction  is  un- 
lawful unless  it  might  have  been  avoided  by 
a  different  construction  of  the  track.  If  the 
company  negligently  obstructs  a  street  it  is 
liable  in  damages  or  subject  to  indictment. 
Com.  V.  Eru  &*  N.  E.  R.  Co.,  vj  Pa.  St.  339. 
—Followed  in  Girard  College  Pass.  R. 
Co.  V,  Thirteenth  &  F.  St.  R.  Co.,  7  Pliila. 
(Pa.)  620.  Quoted  in  Portland  &  W.  V. 
R.  Co.  V.  Portland,  27  Am.  &  Eng.  R.  Cas. 
353,  14  Oreg.  188;  Pittsburgh,  Ft.  W.  &  C. 
R.  Co.  V.  Pittsburgh,  i  Pittsb.  (Pa.)  392. 
Reviewed  in  Junction  Pass.  R.  Co.  v. 
Williamsport  Pass.  R.  Co.,  154  Pa.  St.  116. 

Obstruction  of  streets  by  a  company,  un- 
less the  train  is  standing  to  load  or  unload 
passengers,  and  unless  a  passway  is  left 
open,  is  unlawful,  under  Va.  Acts  1883-84, 
p.  499;  and  the  company  is  liable  to  fine 
and  for  such  damages  as  may  be  caused 
thereby  to  any  person.  (Va,  Code,  §  2900.) 
But  these  damages  must  be  proved,  not  in- 
ferred. Richmond  &*  D.  R.  Co.  v.  Noell,  80 
Va.  19,  13  Va,  L.J.  320,  9  5.  E.  Rep.  473. 

A  company  cannot  monopolize  a  street,  in 
derogation  of  the  public  and  private  use^  to 
which  it  has  been  applied,  by  allowing  cars 
to  stand  on  crossings.  JanesvilU  v.  Mil- 
waukee &*  M.  R.  Co.,  7  Wis.  484. 

404.  Construction  of  statutes.— 
The  Florida  statute  does  not  give  to  rail- 
road companies  the  power  to  construct  their 
roads  across  or  along  highways  in  such  a 
manner  as  to  block  up  and  permanently 
obstruct  them,  so  that  they  cannot  be  used 
by  the  public  while  the  trains  are  neither 
passing  over  them  nor  otherwise  properly 
using  the  tracks.  Palatka  &*  I.  R.  R.  Co. 
V.  State,  32  Am.  A*  Efig:  R.  Cas.  191, 23  F/a. 
546,  1 1  Am.  St.  Rep.  395,  3  So.  Rep.  1 58. 

The  word  "  wilful,"  in  statutes  similar  to 
the  one  to  prevent  the  obstruction  of  high- 
ways, implies  legal  malice,  evil  intent,  or 
the  absence  of  reasonable  ground  for  the 
accused  to  believe  that  the  act  charged  was 
lawful.  Savannah,  F.  &*  IV.  R.  Co.  v. 
State,  32  Am.  A-  E^.  R.  Cas.  182,  23  F/a. 
579,  3  So.  Rep.  204. 

The  intention  of  III.  Rev.  St.  1874,  p.  810, 
S§  53.  53,  is  to  subject  the  engineer,  con- 
ductor, and  railway  corporation,  indiffer- 
ently.  to  the  prescribed  fine  of  not  less  than 
fio  nor  more  than  |ioo  for  obstructing 
highways  by  stopping  trains  or  leaving  cars 
standing  on  any  creasing,  and  not  that  the 


corporation  shall  be  liable  for  the  like  sum 
for  which  the  engineer  or  conductor  shall 
have  been  convicted.  Toledo,  W.  &*  W.  R. 
Co.  V.  People,  81  ///.  141.— Reviewed  im 
Indianapolis  &  St.  L.  R.  Co.  v.  People,  33 
III.  App.  286. 

The  term  "  highways,"  as  used  in  111.  Rev. 
St.  ch.  1 14,  §§  77,  78,  is  a  generic  term,  and 
includes  all  kinds  of  public  highways  and 
streets.  Ohio,  I.  &*  W.  R.  Co.  v.  People,  39 
///.  App.  473. 

A  street  or  highway  is  not  obstructed 
within  the  meaning  of  111.  Rev.  St.  ch.  174, 
§  77,  unless  travel  across  the  track  is  actU' 
ally  impeded  by  the  presence  of  the  loco- 
motive, engine,  or  train  of  cars.  Illinois  C. 
R.  Co.  V.  People,  49  ///.  App.  538. 

111.  Rev.  St.  ch.  174,  §  77,  providing  a 
penalty  for  the  obstruction  of  a  highway  by 
cars,  is  a  penal  statute  and  must  be  strictly 
construed.  Illinois  C.  R.  Co.  v.  People,  49 
///.  App.  540. 

Indiana  Act  of  March  2.  1888.  §  23,  im- 
posing a  penalty  of  five  dollars  per  day  for 
the  unnecessary  obstruction  of  a  highway, 
does  not  apply  to  a  company  which  lawfully 
crosses  a  highway  with  its  track,  although 
it  fails  to  restore  it  to  its  former  state  as 
nearly  as  possible  as  required  by  statute. 
Cummins  ex  rel.  v.  Evansville  &*  T.  H.  R. 
Co.,  36  Am.  &•  Eng:  R.Cas.  147,  tt$  Ind. 
417,  15  IVest.  Rep.  456,  iSJV.  E.  Rep.  6. 

Under  N.  H.  Act  of  July  i,  1853.  no  rail- 
road is  liable  for  not  constructing  a  pass,  for 
the  accommodation  of  the  public  travel, 
under  any  way,  unless  such  way  has  been 
laid  out  agreeably  to  statute  law,  or  has  been 
used  by  thi  public  for  at  least  twenty  years. 
Northumberland  v.  Atlantic  &*  St.  L.  R. 
Co.,  35  A^.  H.  574. 

N.  H.  Gen.  St.  ch.  148,  §  7,  is  directed  to 
the  object  of  protecting  travelers  against 
delay  from  the  obstruction  of  cars,  etc..  at 
railroad  crossings  ;  its  violation,  therefore, 
does  not  create  an  absolute  liability  for 
damage  which  is  not  caused  directly  by  such 
delay.  Hall  v.  Brown,  54  A^.  H.  495,  11 
Am.  Ry.  Rep.  231. 

Ohio  Act  of  March  7,  1873,  providing  a 
new  remedy  against  persons  wi>o  place 
obstructions  in  public  highways,  applies  to 
existing  obstructions,  as  well  as  to  those 
subsequently  placed  in  the  highways.  Law- 
rence R.  Co.  V.  Mahonitig  County  Com'rs,  35 
Ohio  St.  I.  —  Distinguished  in  Perry 
County  V.  Newark,  S.  &  S.  R.  Co.,  43  Ohio 
St.4Si> 


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708        STREETS  AND  HIGHWAYS   (RAILWAYS  IN),  405-407. 


Pa.  Act  of  March  20,  1845,  forbidding  the 
obstruction  of  the  crossings  of  public  streets, 
is  a  general  law,  and  applicable  to  a  railroad 
company  subsequently  incorporated.  Penn- 
sylvania R.  Co.  V.  Kelly,  31  Pa.  St.  372. 

The  Railways  Clauses  Consolidation  Act, 
1845,  §  16,  authorizes  the  permanent  diver- 
sion of  public  roads  for  the  purpose  of  con- 
structing a  railway,  and  not  merely  a  tem- 
porary diversion.  Phillifips  v.  London,  B. 
&»  S.  C.  R.  Co..  4  Giff:  46,  9/«r.  N.  S.  348, 
7  L.  T.  663. 

Only  a  person  clothed  with  some  duty  in 
respect  to  the  public  is  "a  person  having 
management  of  the  road  "  within  the  mean- 
ing of  the  Railways  Clauses  Consolidation 
Act,  1845,  §  57,  authorizing  proceedings 
against  railway  companies  for  penalties  for 
interfering  with  an  existing  public  road. 
Rfg.  v.  Wilson,  16  /ur.  973,  21  L.J.  Q.  B. 
281,  18  Q.  B.  348. 

The  Railways  Clauses  Consolidation  Act, 
i845>  §  53i  applies  to  a  permanent  diversion 
as  well  as  to  a  temporary  diversion  of  a  road. 
Attorney-General  v.  Barry  D.  &-  R.  Co.,  35 
CA.  D.  573.— Reviewing  Attorney-General 
V.  Great  Northern  R.  Co.,  4  De  G.  &  Sm.  75. 

405.  What  is  an  unlawful  en- 
croachment or  obstruction.*— If  teams 
could  not  cross  a  track  on  the  usual  crossing 
without  the  whiffletrees  or  wheels  coming 
in  contact  with  the  bumper  of  the  car,  then 
the  leaving  of  buch  car  there  was  an  obstruc- 
tion of  the  highway.  Peterson  v.  Chicago 
&*  W.  M.  R.  Co.,  64  Mick.  621.  31  N.  W. 
Rep.  548.— Approving  Young i/.  Detroit,  G. 
H.  &  M.  R.  Co.,  56  Mich.  439 ;  Macauley 
V.  Mayor,  etc.,  of  N.  Y.,  67  N.  Y.  602. 
Distinguishing  Titus  v.  Northbridge,  97 
Mass.  258  ;  Gilbert  v.  Flint  &  P.  M.  R.  Co., 
51  Mich.  488. 

An  express  company  erected,  in  front  of 
its  place  of  business,  a  structure  about  1 10 
feet  in  length,  with  a  roof  constructed  of 
corrugated  iron,  supported  by  iron  columns 
about  three  and  a  half  inches  in  diameter, 
and  placed  from  twelve  to  twelve  and  a  half 
feet  apart  next  to  and  along  the  inside 
of  the  curbstone,  the  lowest  point  of  the 
roof  being  about  ten  feet  above  the  sidewalk, 
and  covering  it  for  the  entire  distance  of 
no  feet,  and  so  imbedded  in  the  soil  as  to 

*  Liability  of  corporation  for  unlawfully  ob- 
structing highway,  see  note,  4  L.  R.  A.  299. 

Liability  of  company  for  personal  injury 
caused  by  leaving  loaded  truck  on  sidewalk,  see 
56  Am.  &  Eng.  R.  Cas.  372,  abstr. 


be  a  permanent  structure.  Held,  that  this 
was  an  encroachment  upon  the  street,  and 
might  be  removed  by  the  municipal  authori- 
ties. Hoty  V.  Gilroy,  14  A'^  Y.  Sufip.  159,37 
A^.  Y.  S.  R.  754;  reversed  in  129  N.  Y.  132, 
41  N.  Y.  S.  R.  181,  29  N.  E.  Rep.  85. 

No  privilege  to  maintain  such  an  awning 
can  be  claimed  on  the  ground  that  the 
owner  is  a  common  carrier,  and  that  the 
awning  is  used  as  a  protection  to  goods 
carried  by  it.  Hoey  v.  Gilroy,  \\N.  Y.  Supp. 
1 59. 37  A^-  V'  S.  R.IW,  reversed  in  1 29  N.  Y. 
132,  41  A^.  Y.  S.  R.  i8i,  29  N.  E.  Rep.  85. 

406.  Duty  of  town  towards  travel- 
ers where  highway  is  obstructed.— 
Where  a  company  appropriates  the  entire 
width  of  a  public  road  for  its  track,  but 
actually  uses  only  a  portion  thereof,  leaving 
the  remainder  open  for  travel  but  in  a 
dangerous  condition,  it  is  the  duty  of  the 
township  supervisors  either  to  fence  off  the 
dangerous  portion  so  that  the  public  cannot 
travel  thereon,  or  else  to  erect  and  maintain 
such  guards  as  may  render  the  road  safe  for 
travel.  Aston  Tp.  v.  McClure,  102  Pa.  St. 
322.— Distinguished  in  Pittsburg,  C.  & 
Y.  R.  Co.  V.  Moses.  (Pa.)  24  Am.  &  Eng.  R. 
Cas.  295,  2  Atl.  Rep.  188. 

When  railroads  obstruct  highways,  the 
town  must  provide  suitable  byways  for  the 
public  to  pass  around  the  obstruction,  and 
must  use  reasonable  precaution  to  divert  the 
travel  from  such  highways  while  they  remain 
unsafe.  Batty  v.  Duxbury,  24  Vt.  155. — 
Followed  in  Mathews  v.  Winooski  Turn- 
pike Co.,  24  Vt.  480. 

Towns  are  bound,  after  having  reasonable 
notice  of  the  existence  of  obstructions  in 
their  highways,  to  remove  them,  or  make 
safe  byways  to  pass  around  them,  or  to  see 
that  they  are  properly  made  by  others. 
Baity  V.  Duxbury,  24  Vt.  155. 

Where  an  individual  is  only  interested  in 
a  highway  as  one  of  the  public,  he  cannot 
maintain  an  action  against  a  railroad  com- 
pany for  constructing  its  road  so  as  to 
obstruct  the  highway.  The  liability  of  the 
company  is  to  the  town,  and  the  remedy  of 
the  individual  is  against  the  town  for  neglect 
to  keep  the  highway  in  repair.  Buck  v. 
Connecticut  6-  P.  R.  R.  Co.,  42  Vt.  370. 

407.  Proximate  cause.  —  Where  the 
starting  of  a  train  did  not  directly  contribute 
to  the  accident,  one  injured  by  it  cannot 
recover  on  the  ground  that  no  signal  for 
starting  was  given.  Barkley  v.  Missouri 
Pac,  R.  Co.,  96  Mo.  367,  9  S.  tV.  Rep.  793. 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  408. 


709 


A  standing  freight  train  was  extended, 
in  violation  of  city  ordinances,  for  several 
blocks  along  a  public  street,  and  so  as  to 
obstruct  a  cross  street  used  by  plaintiff,  and 
in  passing  he  found  it  necessary  to  cross 
over  the  cars ;  and  while  he  was  in  the  act 
of  so  doing,  the  train  suddenly  backed, 
inflicting  a  permanent  injury  on  plaintiff. 
Held,  that  these  facts  do  not  fail  to  show  an 
actionable  causal  connection  between  de- 
fendant's unlawful  blocking  of  the  street 
and  the  injury  suffered  by  plaintiff  while 
attempting  a  lawful  use  of  the  highway. 
Hudson  V.  Wabash  &*  W.  R.  Co.,  32  Mo. 
App.fAT;  reversed  in  loi  Mo.  13. — Apply- 
ing Keim  v.  Union  R.  &  T.  Co.,  90  Mo. 
314.  Distinguishing  Stillson  v.  Hanni- 
bal &  St.  J.  R.  Co.,  67  Mo.  671.  Quoting 
Henry  v.  St.  Louis,  K.  C.  &  N.  R.  Co.,  76 
Mo.  293.  Reviewing  Dunn  v.  Cass  Ave. 
R.  Co.,  21  Mo.  App.  198.— Reviewed  in 
Mauerman  v,  St.  Louis,  \.  M.  &  S.  R.  Co., 
41  Mo.  App.  348. 

A  company,  by  its  train,  unlawfully  ob- 
structed a  village  street.  S.  walked  around 
the  rear  of  the  train,  entered  another  street, 
and  there  having  selected  one  of  several 
routes  to  her  home,  slipped  on  ice,  fell,  and 
sustained  serious  injury.  Tlie  same  com> 
pany  had  placed  the  ice  there  in  the  process 
of  clearing  its  track,  which  occupied  part  of 
the  street.  The  street  was  laid  out  after  the 
railway  was  in  use,  and  the  rights  of  the 
public  in  said  street  were  subject  to  the 
rights  of  the  company.  Held:  (i)that  the 
proximate  cause  of  the  injury  was  the  plac- 
ing  of  the  ice  in  the  street :  (2)  if  the  com- 
pany  was  not  in  fault  in  so  placing  the  ice, 
it  was  not  liable  for  the  injury  caused  by 
the  fall.  Pittsburg,  C.  &»  St.  L.  R.  Co.  v. 
Staley,  19  Am.  &•  Eng.  R.  Cas.  381,  41  Ohio 
St.  118,  52  Am.  Rep.  74. 

408.  Liability  for  delayiug  travel- 
ers by  obstructions  iu  higrhway.*— 
One  traveler  has  no  more  legal  ground  of 
complaint  on  account  of  an  obstruction  in 
the  public  highway  than  others,  unless  he 
be  entitled  to  use  the  highway  at  the  point 
of  such  obstruction  for  a  different  purpose 
than  other  people,  or  has  suffered  some 
special  injury  therefrom.  The  fact  that  he 
may  be  more  frequently  inconvenienced 
thereby  does  not  give  a  cause  of  action. 
Gilbert  v.  Greeley,  S.    L.  A-  P.   R.  Co.,  40 

•  Damages  for  ihc  obstruction  of  a  private 
way,  see  note,  30  Am.  &  Eno.  R.  Cas.  395. 


Am.  &*  Eng.  R.  Cas.  300,  13  Colo.  $01,  22 
Pac.  Rep.  814. 

Where  an  excavation  has  been  made  for 
the  construction  of  a  railway,  which  pre- 
vents travel  on  a  certain  street,  and  it  ap- 
pears that  a  suitable  crossing  would  be  of 
great  advantage  to  people  living  near  the 
street  and  to  the  general  public,  and  that 
the  only  available  crossing  in  the  vicinity 
is  particularly  dangerous,  the  construction 
of  such  a  crossing  is  a  public  necessity, 
and  it  will  not  avail  to  object  that  the 
street  would  not  be  in  a  condition  for  the 
passage  of  loaded  vehicles  even  if  tlie  cross- 
ing were  built,  on  account  of  a  steep  hill  in 
one  part  of  it,  where  it  appears  that  cer- 
tain improvements,  which  include  the  grad- 
ing of  the  hill,  were  discontinued  on  ac- 
count of  the  excavation.  Ft.  Dodge  v. 
Minneapolis  6-»  St.  L.  R.  Co.,  55  Am.  &*  Eng, 
R.  Cas.  58,  87  JoTva  389,  54  A';  IV.  Rep.  243. 

A  railroad  corporation  whose  track  is 
located  on  a  highway  may  load  and  unload 
a  car  which  is  temporarily  standing  for  that 
purpose  in  the  street,  provided  it  be  done 
in  such  a  prudent  manner  as  not  unreason- 
ably to  interfere  with  the  rights  of  those 
having  occasion  to  use  the  way  for  the 
ordinary  purpose  of  travel.  Mathews  v. 
Kelsey,  58  Me.  56. 

And  for  the  purpose  of  unloading  a  car  of 
flour,  a  merchant,  whose  store  is  on  the 
street,  may  use  skids,  temporarily  elevated 
above  the  ground  and  extending  from  the 
car  door  fifty  feet  to  the  store,  provided 
there  is  ample  room  between  the  car  and 
the  opposite  side  of  the  street  to  accom- 
modate the  travel.  Mathews  v.  Kelsey,  58 
Me.  56. 

A  company  and  a  city  are  not  liable  for 
obstructing  the  passage  of  a  bridge  while 
repairing  it,  which,  under  the  law,  they  have 
a  right  to  do,  on  mere  proof  that  plaintifl 
was  deprived  of  the  use  of  the  bridge  an 
unreasonable  length  of  time,  there  being 
nothing  to  show  that  his  person  or  property 
was  injured  by  reason  of  the  negligence  of 
those  engaged  in  doing  the  work,  except  as 
to  such  injury  as  was  connected  with  the 
use  of  the  bridge.  Shaw  v.  Boston  &*  A. 
R.  Co.,  159  Mass.  597,  35  iV.  £■.  Rep.  92. 

One  detained  by  a  train  at  a  highway 
crossing  is  justified  in  momentarily  expect- 
ing that  the  obstruction  will  be  removed,  as 
the  law  requires ;  and  if,  as  the  result  of 
being  detained  unreasonably  in  inclement 
weather,  he  is  made  sick,  he  may  recover 


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STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  408. 


damages  of  the  company.  It  does  not  lie 
with  defendant  to  say  that  plaintiff  should 
have  yielded  to  its  unlawful  conduct  and 
sought  shelter.  Louisville,  N.  O.  &*  T.  R. 
Co.  V.  Durfree,6g  Miss.  439,  13  So.  Rep.  697. 

A  railroad  company  is  necessarily  com- 
pelled, in  the  transaction  of  its  business,  to 
permit  crossings  at  its  depots  to  be  obstructed 
at  times  by  its  trains.  Barkley  v.  Missouri 
Pac.  R.  Co.,  96  Mo.  367,  9  S.  W.  Rep.  793. 

Plaintiff  was  traveling  on  a  public  high- 
way or  street  where  a  railroad  crossed  it, 
and  sued  the  company  for  damages  caused 
by  the  delay  of  himself,  his  family,  and 
drivers  for  half  an  hour,  by  reason  of  a  train 
that  obstructed  the  street,  claiming  actual 
damages  for  loss  of  time  and  for  injury  to 
his  wife  and  child  from  exposure  to  the 
weather,  and  for  expenses  for  medical  at- 
tendance and  medicines  in  curing  them  from 
sickness  brought  on  by  such  exposure. 
Held,  that  it  was  a  question  for  the  jury  to 
say  whether  the  train  stopped  an  unreason- 
able length  of  time,  there  being  no  evidence 
to  show  the  cause  of  stopping ;  and  the  bur- 
den devolved  upon  the  company  to  show 
that  the  obstruction  for  half  an  hour  was 
necessary  and  reasonable.  Texas  &•  P.  R. 
Co.  v.  Se:/  23  Am.  &*  Eng.  R.  Cas.  310,  2 
Tex.  App.  (Civ.  Cas.)  387. 

If  a  company  has  the  right  to  extend  a 
switch  track  into  the  highway,  it  is  bound 
to  use  such  track  in  such  a  manner  as  not 
unnecessarily  to  interfere  with  public  travel 
over  such  highway.  Bussian  v.  Milwaukee, 
L.  S.  &»  W.  R.  Co.,  10  Am.  &*  Eng.  R.  Cas. 
716.  56  Wis.  325.  14  A^.  W.  Rep.  452. 

409.  liiability  to  persons  injured 
by  reason  of  obstructions.* — Whether 
a  company  is  not  responsible  for  wroi/gfully 
or  negligently  delaying  a  traveler  on  the 
highway  at  a  public  road  crossing,  by  al- 
lowing a  train  to  remain  on  the  track  at  the 
crossing,  is  not  decided ;  but,  if  such  liabil- 
ity exists,  it  extends  only  to  the  damages 
which  are  the  natural  consequences  of  the 
delay,  and  does  not  extend  to  damages 
caused  by  another  train  coming  up,  blow- 
ing off  steam,  frightening  the  traveler's 
horse,  and  causing  him  to  run  away.  Stan- 
ion  v.  Louisville  &*  N.  R.  Co..  91  Ala.  382,  8 
So.  Rep.  798. 

Conn.  Gen.  St.  §  10,  making  a  company 
liable  for  an  injury  caused  by  a  structure 

*  Liability  o(  company  for  obstructing  streets 
and  highways,  see  notes,  4  L.  R.  A.  313  ;  18  M. 
»54. 


legally  placed  by  it  on  a  public  highway, 
applies  whether  the  highway  was  estab- 
lished after  or  before  the  railroad  was  built. 
The  expression  "it,  and  not  the  party 
bound  to  keep  the  road  in  repair,"  means 
"  the  party  otherwise  bound."  etc.  Allen  v. 
JVew  Haven  6-  N.  Co.,  14  Am.  &*  Eng.  R. 
Cas.  615,  50  Conn.  215. 

A  company  has  no  authority  to  change 
the  course  of  a  public  road,  and  where  it 
has  made  such  change,  and  a  person  follow- 
ing the  old  road  has  been  injured  by  an 
obstruction  carelessly  left  there  by  it,  the 
company  will  be  liable,  unless  it  appears 
that  the  old  road  was  not  the  legal  road, 
and  the  burden  is  upon  the  company  to 
show  this.  Allan/a  &*  R,  A.  L.  R.  Co.  v. 
Wood,  48  Ga.  565. 

A  company  is  liable  for  an  injury  sus- 
tained by  a  traveler  on  a  highway  in  col- 
liding, with  his  team,  with  a  hand-car  negli- 
gently left  thereon  at  night  by  a  section 
foreman.  Pittsburgh,  C.  &»  St.  L.  R.  Co. 
v.  Sponier,  8  Am.  &*  Eng.  R.  Cas.  453,  85 
Ittd.  165. 

Where  the  negligence  charged  is  permit- 
ting freight  cars  to  stand  upon  a  side  track 
so  as  partially  to  obstruct  a  street  eighty 
feet  wide,  leaving  a  space  of  only  twenty- 
four  or  twenty-five  feet  for  crossing,  plaintiff 
is  entitled  to  an  instruction  that  defendant 
company  had  no  legal  right  to  block  up  the 
view  of  its  track  at  the  crossing  by  leaving 
freight  cars  standing  upon  a  side  track 
which  is  adjacent  thereto,  and  it  could  not, 
if  such  freight  cars  obstructed  the  view  and 
rendered  the  crossing  more  dangerous  to 
travelers,  excuse  any  want  of  extra  care  to 
guard  against  accidents,  of  which  it  may 
have  been  guilty,  by  any  claim  that  no 
statute  law  is  violated  by  so  doing  which 
required  any  additional  warning  because  of 
such  cars  being  so  left  in  the  way  of  the 
traveler's  sight.  (Campbell  and  Champlin, 
JJ.,  dissenting.)  Close  v.  Lake  Shore  &-  M. 
S.  R.  Co.,  37  Am.  &'  Eng.  R.  Cas.  522,  73 
Mick.  647,  41  N.  W.  Rep.  828. 

A  company  having  the  legal  right  to  lay 
its  track  through  a  public  street  is  liable  to 
persons  injured  by  the  obstruction  of  the 
street  only  for  an  illegal  use  of  the  street  in 
the  manner  of  operating  the  road.  Lackland 
V.  North  Mo.  R.  Co.,  34  Mo.  259.— Follow- 
ing Lackland  v.  North  Mo.  R.  Co.,  31  Mo. 
i8i;  Porter  r.  North  Mo.  R.  Co.,  33  Mo.  128. 

A  company  has  a  right  to  stop  its  train 
at  a  public  crossing  for  a  reasonable  time 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  410. 


711 


for  proper  purposes,  but  passengers  are  not 
obliged  to  wait  until  the  train  is  removed; 
and  if  the  passengers  are  obliged  to  cross 
at  other  points  than  the  public  crossing  on 
account  of  such  obstruction,  the  company  is 
bound  to  use  ordinary  care  and  diligence  to 
prevent  injuries  to  them;  and  when  per- 
sons are  in  the  habit  of  crossing  the  track 
at  another  than  the  nublic  crossing,  the 
agents  and  servants  of  the  company  are 
bound  to  take  notice  of  the  fact  and  use  a 
precaution  commensurate  with  it.  Brown 
V.  Hannibal  &*  St.  J.  R.  Co.,  50  Mo.  461, 
3  Am.  Ry.  Rep.  540. 

A  person  injured  at  such  crossing  by  one 
of  the  trains  cannot  recover  because  of  such 
obstruction  unless  the  crossing  was  kept 
closed  for  an  unreasonable  length  of  time 
and  the  injury  was  the  proximate  result  of 
the  company's  unreasonable  delay  in  re- 
moving the  train  from  the  crossing.  Bark- 
ley  V.  Missouri  Pac.  R.  Co.,  96  Mo.  367,  9 
S.  W.  Rep.  793. 

He  who  continues  a  nuisance  which  ob- 
structs a  public  highway  is  responsible  for 
injuries  resulting  from  such  obstruction, 
without  proof  of  notice  to  him  of  its  exist- 
ence. Matthews  v.  Missouri  Pac.  R.  Co., 
26  Mo.  App.  75. 

Defendant  company  left  a  car  standing  in 
the  street  so  as  to  obstruct  the  view  of  the 
track  in  one  direction,  and  plaintiff,  who  was 
crossing  the  track,  could  not  see  an  ap- 
proaching train,  and  was  run  over.  Held, 
that  the  company  was  guilty  of  negligence. 
McGuire  v.  Hudson  River  R.  Co.,  2  Daly 
(AT.  K.)76. 

It  is  the  duty  of  a  company  not  to  ob- 
struct public  roads  where  tliey  cross  the 
track,  either  by  stopping  trains  thereon  or 
otherwise;  and  a  company  must  take  the 
consequences  of  all  such  obstructions.  Mur- 
ray V.  South  Carolina  R.  Co.,  10  Rich.  {So. 
Car.)  227. 

Where  a  company  blocks  a  highway  cross- 
ing by  allowing  its  trains  to  remain  an  un- 
reasonable length  of  time  standing  across 
it,  it  is  liable  in  damages  to  any  traveler  on 
the  highway  thereby  injured.  Texas  &»  P. 
R.  Co.  V.  Self,  23  Am.  &*  Eng.  R.  Cat,  310, 
2  Tex.  App.  (Civ.  Cas.)  387. 

A  highway  by  dedication  may  have  a 
margin.  So  where  a  railroad  company  runs 
its  track  along  the  margin  of  a  highway 
which  has  never  been  surveyed,  and  leaves 
obstructions  on  the  margin  so  that  travel 
is  crowded  from   the  original  path  used 


for  more  than  twenty  yean,  it  is  liable  to  A 
traveler  injured  by  striking  such  obstruc- 
tions. Brownell  v.  Troy  &»  B.  R.  Co.,i$ 
Am.  &*  Eng.  R.  Cas.  498,  55  Vt.  nS. 

410.  Obstruction  by  cars  and  en- 
gines  in  violation  of  ordinance  is 
negligence.— The  obstruction  of  a  street 
crossing  by  railroad  engines  in  violation  of 
an  ordinance  constitutes  negligence  per  st 
on  the  part  of  the  company.  Denver,  T.  6* 
G.  R.  Co.  V.  Robbins,  2  Colo.  App.  313,  30 
Pac.  Rep.  261.— Approving  Dodge  v.  Bur- 
lington, C.  R.  &  M.  R.  Co.,  34  Iowa  276. 
Quoting  Young  v.  Detroit,  G.  H.  &  M. 
R.  Co.,  56  Mich.  430;  Correll  v.  Burlington, 
C.  R.  &  M.  R.  Co.,  38  Iowa  120. 

It  is  negligence  in  a  company  to  leave  a 
box  car  standing  on  its  track  over  a  street 
crossing  from  ten  o'clock  at  night  to  five 
o'clock  the  next  morning.  McCoy  v.  Phil- 
adelphia,  W.  <S-  B.  R.  Co.,  5  Houst.  {Del.)  599. 

It  is  negligence  per  se  for  a  company,  in 
violation  of  a  valid  municipal  ordinance,  to 
obstruct  with  standing  cars  or  locomotives 
a  public  street  or  space  in  actual  daily  use 
by  the  public ;  and  that  the  municipality 
may  have  acquiesced  passively  in  violations 
of  the  ordinance  will  not  excuse  such  neg- 
ligence. Central  R.  Co.  v.  Curtis,  87  Ga. 
416,  13  5.  E.  Rep.  757. 

Where  the  joint  use  of  a  public  street 
with  the  public  is  granted  to  a  company,  and 
its  right  is  not  exclusive  in  any  portion 
thereof,  the  company  may  be  properly  con- 
victed of  a  breach  of  an  ordinance  against 
obstructing  streets  and  their  crossings  by 
locomotives  and  cars.  St.  Louis,  A.  &*  T. 
H.  R.  Co.  v.  Belleville,  32  Am.  &*  Eng.  R. 
Cas.  278,  122  ///.  376,  12  A'.  E.  Rep.  680,  10 
IVest.  Rep.  605. 

Where  defendant  company  has  the  right 
to  use  the  track  of  another  company  for  cer- 
tain purposes  only,  defendant  is  not  liable 
for  an  injury  caused  by  the  other  company 
obstructing  a  crossing  with  its  own  cars. 
Lake  Shore  6*  M.  S.  R.  Co.  v.  /Caste,  11  ///. 
App.  536. 

If  an  injury  results  from  the  neglect  of  a 
company  to  observe  the  statutory  rule  that 
it  shall  not  leave  cars  standing  across  a 
highway  more  than  five  minutes  at  a  time, 
the  company  is  guilty  of  negligence  and 
liable  for  the  injury,  if  the  person  who  suf- 
fered was  not  in  fault.  Young  v.  Detroit,  G. 
H.  5-  M.  R.  Co..  19  Am.  6*  Eng.  R.  Cas.  417, 
56  Mich.  430,  23  A^.  IV.  Rep.  67.  —  DISTIN- 
GUISHING Gilbert  v.  Flint  &  P.  M.  R.  Co.,  51 


5  '1 


1,1 


mim 


712        STREETS   AND    HIGHWAYS   (RAHAVAYS   IN),  411,412. 


Mich.  488.— Distinguished  in  O'Donnell 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  69  Iowa  102. 

Leaving  a  car  upon  a  switch  track  within 
the  limits  of  a  highway,  and  near  to  the 
traveled  part  thereof,  for  several  days,  if  not 
negligence  in  law,  at  least  tends  to  prove 
negligence  on  the  part  of  the  company 
which  constructed  and  owns  such  track; 
and  it  is  immaterial  that  such  car  belonged 
to,  and  was  placed  there  by  the  direction  of, 
another  company.  Bussian  v.  Milw  'ukee, 
L.  S.  &•  W.  JP.  Co.,  10  Am.  <S-  Etig.  /?.  Cas. 
716,  56  Wis.  325,  14  N.  IV.  Rep.  45^. 

411.  Storage  of  empty  cars  on 
highway.  —  A  company  which  leaves  its 
cars  standing  in  a  public  highway  is  guilty 
of  an  unlawful  obstruction  thereof,  under 
Ind.  Rev.  St.  1881,  S§  1964,  2170,  notwith- 
standing it  may  leave  a  portion  of  the  centre 
of  the  roadway  open  for  the  passage  of 
vehicles.  Pittsburgh,  C.  &•  St.  L.  R.  Co.  v. 
Kitley,  37  Am.  &*  Eng.  R.  Cas.  511,  118  Ind. 
152,  20  A';  E.  Rep.  727. 

A  company  has  no  right  to  use  a  highway 
for  the  storage  of  cars,  or  as  a  place  for 
their  temporary  deposit.  The  permanent 
or  temporary  occupancy  of  a  highway  by 
cars  is  prima  facie  unlawful.  Ohio  &*  M. 
R.  Co.  V.  Trowbridge,  126  Ind.  391,  26  N.  E. 
Rep.  64.  —  Followed  in  Leavitt  v.  Terre 
Haute  &  I.  R.  Co.,  5  Ind.  App.  513. 

It  is  negligence  in  a  company  to  allow  its 
box  cars  to  stand  for  several  days  on  a  high- 
way crossing,  so  that  the  view  of  the  track 
is  obstructed,  even  if  there  is  space  for  per- 
sons to  cross.  Reed  v.  Chicago,  St.  P..  M.  &* 
O.  R.  Co.,  74  lojva  188,  37  N.  W.  Rep.  149. 

There  is  no  provision  of  law  forbidding 
the  "staking  of  cars"  across  highways  in  a 
company's  yard  or  elsewhere.  Kelly  v. 
Michigan  C.  R.  Co.,  28  Am.  &*  Eng.  R.  Cas. 
633,  65  Mich.  186,  31  N.  IV.  Rep.  904. 

A  company  cannot  block  up  the  view  of 
its  tracks  by  leaving  its  cars  standing 
thereon,  and  then  excuse  its  want  of  any 
extra  care  to  guard  against  accident,  on  the 
plea  that  there  is  no  statute  law  against  so 
leaving  its  cars,  or  requiring  any  additional 
warnings.  The  law  imposes  the  duty  of 
extra  watchfulness  upon  both  the  company 
and  the  traveler  in  the  highway,  in  such 
cases.  Guggenheim  v.  Lake  Shore  &*  M.  S. 
R.  Co.,  32  Am.  6-  Eng.  R.  Cas.  89,  66  Mich. 
150,  9  West.  Rep.  903,  33  N.  W.  Rep,  161. 

A  company  has  no  right  to  make  storage 
ground  of  the  highway  for  its  .reight  cnrs, 
and  thereby  increase  the  danger  upon  the 


crossing,  without  in  some  manner  giving 
notice  thereof,  and  furnishing  additional 
warnings.  Close  v.  Lake  Short  &*  M.  S.  R. 
Co.,  37  Am.  6-  Eng.  R.  Cas.  522,  73  Mich. 
647.  41  A^.  W.  Rep.  828. 

412.  Suddenly  and  without  warn- 
ing starting  cars  obstructing  cross- 
ing.'*— Where  a  train  stops  on  a  crossing, 
.and  is  suddenly  backed,  without  warning, 
whereby  one  passing  behind  the  train  is 
knocked  down  and  injured,  the  employes  of 
the  company  are  guilty  of  gross  negligence, 
and  the  company  is  liable.  Robinson  v. 
Western  Pac.  R.  Co.,  48  Cal.  409,  7  Am.  Ry. 
Rep.  244. 

Inasmuch  as  such  person  is  exercising  an 
undoubted  right  in  crossing  the  track,  he  is 
not  chargeable,  in  respect  of  his  crossing, 
merely,  with  want  of  care,  and  the  company 
is  not  released  from  liability  on  the  ground 
of  contributory  negligence.  He  has  a  right 
to  presume  that  he  will  be  notified  if  the 
train  is  about  to  move,  and  is  not  bound  to 
wait  because  the  train  is  on  the  street,  or  to 
assume  that  it  may  move  suddenly  back- 
ward without  notice.  Robinson  v.  Western 
Pac.  R.  Co.,  48  Cal.  409,  7  Am.  Ry.  Rep.  244. 
—Quoted  in  Solen  w.  Virginia  &  T.  R.  Co., 
13  Nev.  106. 

Even  if  the  bell  of  the  train  was  rung,  this 
does  not  of  itself  establish  proper  care  by 
the  employes  of  the  company ;  for,  although 
the  bell  is  intended  to  give  notice  to  all,  it 
is  the  duty  of  the  engineer  to  see  that  all 
have  acted  on  the  notice.  The  railroad 
company  should  provide  a  lookout,  upon 
whose  signal  that  the  track  is  clear  the 
engineer  may  act.  Robinson  v.  Western 
Pac.  R.  Co.,  48  Cal.  409. 7  Am.  Ry.  Rep.  244. 

Plaintiff  found  a  crossing  obstructed  by  a 
freight  train  and  attempted  to  pass  between 
two  of  the  cars,  and  while  so  crossing  the 
train  was  started  without  any  signal  or 
warning,  throwing  plaintiff  so  that  his  foot 
was  caught  between  the  bull-noses  and 
crushed.  The  avenue  was  impassable  ex- 
cept at  the  !°rreet  crossings,  and  plaintiff 
could  not  ha^  e  passed  to  the  opposite  side 
without  going  out  of  his  way  a  distance  of 
two  squares.  Held:  (i)  that  it  was  the  duty 
of  defendant  to  give  notice  of  some  kind  be- 
fore putting  the  train  in  motion ;  (2)  that  it 
was  correct  to  submit  to  the  jury  whether 
defendant  had  been  in  the  habit  of  obstruct- 
ing the  street,  and  whether  persons  had 

*  See  also  ante,  387. 


STREETS  AND   HIGHWAYS  (RAILWAYS  IN),  413, 414.        713 


been  in  the  habit  of  passing  under  or  over 
the  cars  in  the  presence  of  defendant's  em- 
ployes, and  with  their  acquiescence,  when 
the  trains  were  in  this  condition ;  (3)  that 
defendant  is  not  relieved  from  the  exercise 
of  ordinary  care  when  its  negligence  is  the 
direct  and  proximate  cause  of  the  injury. 
Grant  v.  Baltimore  <S-  P.  Ji.  Co.,  2  Mac  Art  A. 
(D.  C.)  277.— Approving  Isbeil  v.  New 
York  &  N.  H.  R.  Co.,  27  Conn.  393. 

Where  a  company  is  in  the  habit  of  mak- 
ing an  opening  in  its  trains  at  a  point  on  its 
track,  to  enable  the  public  to  cross,  and  a 
traveler  on  coming  to  said  crossing  finds 
the  cars  so  separated  as  to  induce  him  and 
the  public  to  believe  that  the  company  in- 
tends the  space  to  be  used  for  a  crossing, 
and  he  does  so  believe,  then  he  is  justified  in 
acting  on  such  implied  invitation,  and  the 
company  owes  the  duty,  under  the  circum- 
stances, of  giving  him  some  reasonable  or 
suitable  warning  of  its  intentio-i  to  close  the 
opening,  and  will  be  liable  if  it  neglects  to 
do  so  and  because  of  such  neglect  he  is 
injured  while  passing  through,  Gurley  v. 
Missouri  Pac.  R.  Co.,  104  Mo.  211, 16  i*.  IV. 
Rep.  II.— Quoting  Stillson  v.  Hannibal 
&  St.  J.  R.  Co.,  67  Mo.  671 ;  Hudson  v. 
Wabash  Western  R.  Co.,  101  Mo.  13. — Re- 
viewed AND  distinguished  IN  Schmitz 
V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  46  Mo. 
A  pp.  380. 

A  company,  whose  tracks  cross  a  public 
highway,  and  whose  cars  stand  disconnected 
upon  the  highway  with  a  space  between 
them  sufficiently  large  to  permit  persons 
to  pass  through  it,  is  guilty  of  negligence 
if  it  closes  this  space  suddenly  and  with- 
out warning  to  the  traveling  public ;  and 
in  case  of  such  negligence  it  is  liable  for 
the  injury  thereby  caused  to  a  person 
who,  without  contributory  negligence  on 
his  part,  climbs  over  the  drawhead  of  a  car 
instead  of  passing  through  the  open  space. 
Schmitz  V.  St.  Louis,  I.  M.  &*  S.  R.  Co..  46 
Mo.  App.  380.— Reviewing  and  distin- 
guishing Gurley  v.  Missouri  Pac.  K.  Co., 
104  Mo.  211,  16  S.  W.  Rep.  II ;  Stillson  v. 
Hannibal  &  St.  I.  R.  Co.,  67  Mo.  671. 

2.  Remedies.    Procedure, 

413.  Pleading.  —  Negligence  is  suffi- 
ciently charged  in  a  complaint  which  states 
that  defendant  was  unlawfully  and  negli- 
gently occupying  a  street  crossing  with  its 
engines  in  violation  of  a  city  ordinance,  and 


that  by  reason  of  that  fact,  and  without 
negligence  on  the  part  of  plaintiff,  the  injury 
complained  of  resulted.  Denver,  T.  &*  G. 
R.  Co.  V.  Robbins,  2  Colo.  App.  313,  30  Pac. 
Rep.  261.— Quoting  Billman  v.  Indianap- 
olis, C.  &  L.  R.  Co.,  76  Ind.  166. 

A  complaint  alleging  that  a  company  in 
constructing  its  track  along  a  street  haf 
obstructed  the  same  by  raising  an  embank- 
ment therein  eighteen  inches  above  the 
grade:  that  it  is  impracticable  to  drive  over 
the  track  between  one  end  of  a  long  block 
and  another;  and  that  it  is  impossible  to 
turn  with  an  ordinary  team  and  vehicle 
upon  the  street,  or  to  drive  in  or  out  of  the 
lots  and  premises  along  the  street  with 
teams  and  heavy  loads,  shows  facts  entitling 
the  city  to  an  injunction.  Oshkosh  v.  Mil- 
waukee &*  L.  W.  R.  Co.,  39  Am.  &*  Eng.  R. 
Cas.  681,  74  Wis.  534,  43  N.  W.  Rep.  489. 

414.  Mattersof  defense.— To  excuse 
a  company  in  obstructing  a  highway  cross- 
ing longer  than  ten  minutes,  the  legal  limit, 
it  must  have  been  done  by  an  unavoidable 
accident,  and  such  necessity  not  appearing, 
judgment  against  the  company  should  be 
affirmed.  Chicago  &*  E.  I.  R.  Co.  v.  People, 
44  ///.  App.  632. 

A  company  which,  in  violation  of  an 
express  statutory  duty,  obstructs  a  public 
highway  cannot  be  heard  to  say  that  it  did 
not  anticipate  an  injury  which  is  the  direct 
result  of  the  unlawful  act.  Evansville  &» 
T.  H.  R.  Co.  V.  Carvener,  32  Am.  6-  Eng. 
R.  Cas.  134.  113  Ind.  51,  14  AT.  £".  Rep.  738, 
12  West.  Rep.  203. 

Although  the  whole  of  a  plank  crossing 
is  left  clear  of  freight  cars,  a  company  can- 
not urge  that  it  did  not  wrongfully  obstruct 
the  crossing  when  by  statute  it  is  prohibited 
from  permitting  freight  cars  to  stand  across 
a  highway  without  leaving  a  space  of  sixty 
feet  for  crossing,  and  such  space  has  not 
in  fact  been  left.  Pittsburgh,  C.  &»  St.  L. 
R.  Co.  V.  Kitley,  37  Am.  &*  Eng.  R.  Cas.  511, 
118  Ind.  152,  20  N.  E.  Rep.  727. 

A  corporation  owning  and  operating  a 
railroad  which  crosses  a  common  highway 
is  under  no  obligation  to  remove  from  the 
highway  obstructions  placed  on  the  cross- 
ing by  a  stranger,  if  the  material  constitut- 
ing the  obstruction  is  neither  the  property, 
nor  under  the  care  and  control,  of  the  cor- 
poration, although  the  existence  of  the  ob- 
struction is  brought  to  the  knowledge  of 
its  agents  ;  nor  does  such  obligation  exist, 
although  the  person  so  placing  the  obstruc- 


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714       STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  415, 4ie. 


tiont  be  a  brakeman  on  the  company'i  road, 
and  the  material  conttitutinf  the  obitruc- 
t'ons  be  waste  manure  from  the  stock  cars 
of  che  company,  if  the  brakeman  so  placed 
the  manure  for  his  own  use,  without  the 
authority  of  the  company,  and  at  the  time 
was  not  acting  within  the  scope  of  his  em- 
ployment and  duty  as  brakeman.  Pitts- 
hirg.  Ft.  W.  &>  C.  R.  Co.  v.  Maurtr,  ai 
Ohio  St.  431.— Distinguished  in  Tinker  v. 
New  York.  O.  &  W.  R.  Co..  71  Hun  (N.  Y.) 
431 ;  Dyer  County  v.  Chesapeake,  O.  &  S. 
W.  R.  Co..  38  Am.  &  Eng.  R.  Cas.  676.  87 
Tenn.  712.  11  S.  W.  Rep.  943. 

415.  What  anioniitH  to  contribn- 
torj  negligence  on  part  of  person 
Injured. — A  train  stopped  for  an  hour  at 
a  station,  and  its  locomotive  extended  three 
and  a  half  feet  over  a  public  highway. 
Plaintiff,  who  was  a  physician,  vas  anxious 
to  make  a  professional  call,  and  after  wait- 
ing some  twenty  minutes  attempted  to  lead 
his  horse  around  the  locomotive,  but  when 
in  front  of  it  the  horse  became  frightened 
and  broke  away,  injuring  the  carriage.  Held, 
that  the  attempt  to  pass  was  not  such  con- 
tributory negligence  as  to  deprive  him  of  a 
right  of  action.  His  conduct  was  for  the 
jury.  Vicksburg  6*  At.  R.  Co.  v.  AUxander, 
62  Misi.  496. 

On  approaching  a  railroad  track,  plaintiflf 
found  the  street  crossing  entirely  obstructed 
by  two  trains,  the  rear  cars  of  which  stood 
but  a  few  feet  from  each  other.  In  attempt- 
ing to  pass  over  he  was  injured  by  the 
backward  movement  of  one  of  the  trains. 
Held,  that  the  fact  that  the  street  was 
obstructed  did  not  justify  plaintiff's  attempt, 
and  he  was  negligent.  Stilhon  v.  Hannibal 
<S-  St.  J.  R.  Co.,  67  Mo.  671.  —  Distin- 
guished in  Hudson  v.  Wabash  &  W.  R. 
Co.,  32  Mo.  App.  667.  Quoted  in  Gurley 
V.  Missouri  Pac.  R.  Co.,  104  Mo.  2ti.  Re- 
viewed in  Frick  v.  St.  Louis,  K.  C.  &  N. 
R.  Co..  8  Am.  &  Eng.  R.  Cas.  280,  7$  Mo. 
595 ;  Schmitz  v.  St.  Louis,  I.  M.  &  S.  R.  Co., 
46  Mo.  App.  380. 

The  act  of  climbing  over  stationary  cars 
without  knowing  whether  or  not  they  arc 
attached  to  an  engine  is  such  negligence  as 
to  prevent  recovery  for  injuries  received  in 
the  attempt,  and  this  is  true  although 
the  cars  were  obstructing  the  street  cross- 
ing in  violation  of  the  city  ordinance.  This 
rule  is  applicable  to  the  act,  in  climbing  over 
a  car,  of  a  police  officer  whose  duties  re- 
quire him  to  crou  the  track,  it  not  appear- 


ing that  the  company's  servants  knew  of 
his  perilous  situation,  and  they  not  being 
required  to  look  for  him  where  he  had  no 
rig  lit  to  be.  Corcoran  v.  St.  Louis.  I.  M. 
4-  S.  R.  Co.,  105  Mo.  399.  16  5.  W.  Rep.  411. 
—Following  Hudson  v.  Wabash  Western 
R.  Co.,  101  Mo.  31. 

Plaintiff  found  a  crossing  obstructed  by  a 
long  train,  which  had  been  standing  for 
some  time,  and  he  attempted  to  pass  by 
climbing  over  the  bumper  of  one  of  the 
cars,  but  while  doing  so  the  train  moved 
and  he  was  injured.  Held,  that  a  nonsuit 
was  properly  allowed  on  the  ground  of  his 
contributory  negligence.  O'Mara  v.  Dela- 
ware A'H.  Canal  Co.,  18  Hun  {H.  K.)  19a. 
—Applying  Massoth  v.  Delaware  &  H. 
Canal  Co.,  64  N.  Y.  529,  6  Hun  314.  Fol- 
lowing Van  Schaick  v.  Hudson  River  R. 
Co..  43  N.  Y.  528.  Quoting  Lewis  v.  Balti- 
more &  O.  R.  Co..  38  Md.  588,  10  Am.  Ry. 
Cas.  521.  Reviewing  Reynolds  v.  New 
York  C.  &  H.  R.  R.  Co..  58  N.  Y.  248. 

A  long  freight  train  was  stopped  on  a 
street  where  there  were  several  tracks,  but 
was  broken  in  two.  so  as  to  leave  a  few  feet 
between  the  cars.  Plaintiff  was  picking  his 
way  along  as  best  he  could,  and  using  his 
eyes  steadily  to  avoid  cars  on  the  other 
tracks,  and  was  injured  by  a  car  which  was 
suddenly  "  kicked  "  along  one  of  the  tracks 
in  such  a  manner  as  to  escape  his  attention. 
Held,  that  the  question  of  his  contributory 
negligence  was  for  the  jury.  Ma/tar  v. 
Grand  Trunk  R.  Co.,  19  Hun  (N.  V.)  32. 

416.  Evidence.— Where  an  innkeeper 
sues  a  company  for  obstructing  the  road 
leading  to  his  inn  and  thereby  injuring  his 
business,  witnesses  should  be  allowed  to 
testify  as  to  the  number  of  guests  enter- 
tained at  the  inn,  and  as  to  the  expedition 
and  care  with  which  the  work  was  prose- 
cuted ;  but  it  is  not  proper  to  ask  a  witness 
whether  the  company  prosecuted  its  work 
as  diligently  as  such  work  is  usually  prose- 
cuted. It  was  the  duty  of  the  company  to 
prosecute  the  work  as  carefully  and  expedi- 
tiously as  could  reasonably  1 3  done.  Hlinois 
C.  R.  Co.  V.  White,  18  III.  164. 

A  company  employed  a  contractor  to  lay 
a  track  in  a  street.  The  evidence  showed 
that  he  erected  a  temporary  barrier,  but  left 
the  ends  of  rails  projecting  beyond  it ;  and 
that  a  person  at  night  fell  over  the  ends  of 
the  rails  and  was  injured.  Held,  that  the 
company  was  liable.  Woodman  v.  Metro- 
politan R.  Co.,  38  Am.  &•  Eng.  R.  Cas.  484, 


STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  417-419.       716 


149  Mats.  335,  4  L.  R.  A.  213,  21  N.  E. 
R«p.  482. 
417.  Instructions  to  the  Jury. — 

The  rule  prescribed  by  the  Illinois  stat- 
utes, that  trains  must  not  obstruct  crossings 
for  more  than  ten  minutes,  does  not  apply 
where  boys  move  cars  onto  a  crossing  with* 
out  the  knowledge  of  the  company  or  its 
employ6s;  and  it  is  error  to  instruct  the 
jury  that  the  company  is  liable  if  the  ob- 
struction continued  more  than  ten  minutes. 
Peoria,  D.  &*  E.  R.  Co.  v.  Lyons,  9  ///. 
App.  350. 

There  is  no  error  in  refusing  to  instruct 
the  jury  that  defendant  "  had  the  right  to 
leave  its  cars  standing  upon  the  track  of  its 
branch  railroad  at  any  point  or  place,"  be- 
cause such  instruction  was  calculated  to 
mislead  the  jury  ;  and  an  instruction  to  the 
effect  that  defendant's  liability  only  arose 
when  it  negligently  permitted  the  car  to 
remain  on  the  highway  an  unreasonable 
length  of  time  sufficiently  covered  a  re- 
quested instruction  to  the  effect  that  de- 
fendant had  knowledge,  or  ought  to  have 
known  by  the  exercise  of  reasonable  care, 
of  the  existence  of  the  car  on  its  track  in 
the  highway.  Cleveland,  C,  C.  &*  I.  R.  Co. 
V.  IVynant,  55  Am.  &*  Eng.  R.  Cas.  80, 
134  Ind.  681,  34  N.  E.  "ep.  569. 

Where  a  person  seeks  to  charge  a  com- 
pany with  negligence  in  not  seasonably 
removing  a  car  which  incumbered  a  high- 
way crossing,  in  consequence  of  which  an 
accident  occurred  to  plaintiff,  an  instruc- 
tion that  if  the  jury  should  find  that  the 
servant!  of  the  company  honestly  believed 
that  they  could  not  move  the  car  without 
help,  and  that  they  exercised  ordinary  care 
and  prudence  in  that  judgment,  they  are  not 
guilty,  is  sufficiently  favorable  to  the  com- 
pany, and  furnishes  no  ground  of  excep- 
tion. Paine  v.  Grand  Trunk  R.  Co.,  58 
N.H.  eii. 

Where  a  company  kept  cars  standing  on 
side  tracks  near  a  street  crossing  where 
plaintiff  was  injured,  an  instruction  to  the 
jury,  in  an  action  for  damages,  that  "de- 
fendant had  the  right  to  leave  its  cars 
standing  on  the  track,  provided  it  kept 
open  a  sufficient  passway,"  was  as  favorable 
as  defendant  was  entitled  to.  Alexander 
V.  Richmond &*  D.  R.  Co.,  ill  N.  Car.  720, 
16  S.  E.  Rep.  896. 

418.  Questions  for  the  Jury. —  It 
cannot  be  said  as  matter  of  law  that  a  high- 
way crossing  id  not  obstructed  by  cars  when 


a  space  of  only  sixteen  feet  is  left  open ;  it 
is  a  question  of  fact  for  a  jury,  depending 
on  the  circumstances.  Yont^  v.  Detroit, 
G.  H.  &*  M,  R.  Co.,  19  Am.  6-  £>jf .  K.  Cas. 
417,  56  Mich.  430,  23  A''.  W.  Rep.  67.- AP- 
PROVED IN  Peterson  V.Chicago  &  W.  M.  R. 
Co.,  64  Mich.  621.  Quoted  in  Denver,  T. 
&  G.  R.  Co.  V.  Robbins,  2  Colo.  App.  313. 

In  a  suit  against  a  company  to  recover  tor 
personal  injuries  sustained,  as  alleged,  by 
defendant  leaving  a  car  standiflg  so  as  to 
encroach  upon  a  highway  crossing,  the  tes- 
timony tended  to  show  that  the  planked 
portion  of  such  crossing  was  encroached 
upon  by  the  draw-bar  of  one  of  said  cars. 
Held,  tiiat  it  was  for  the  jury  to  say  whether 
or  not  it  was  a  negligent  obstruction  of  the 
passage,  and  error  for  the  court  to  decide 
such  question.  Lewless  v.  Detroit,  G.  H, 
&*  M.  Ji.  Co.,  65  Mich.  292,  32  N.  W, 
Rep.  790. 

Where  a  freight  train  is  stopped  across  a 
public  street  and  is  permitted  to  stand  there 
lunger  than  the  city  ordinance  allows,  and 
people  have  congregated  there  to  pass,  and 
are  passing,  between  the  cars,  it  becomes  a 
question  for  the  jury  whether  or  not  the 
company's  servants  may  move  the  train 
without  giving  timely  warning  of  their  m- 
tention  to  do  so.  Burger  v.  Missouri  Pac, 
R.  Co.,  112  Mo.  238,  20  S.  W.  Rep.  439. 

410.  Measure  of  damages.  —  Under 
Ohio  Act  of  1873,  relating  to  obstructions  in 
highways,  the  measure  of  damages  recover- 
able for  a  violation  of  the  act,  ordinarily,  is 
the  cost  of  removing  the  obstructions  and 
restoring  the  highway  to  its  former  condi- 
tion. Lawrence  R.  Co.  v.  Mahoning  County 
Com'rs,  35  Ohio  St.  i. 

A  company,  by  the  negligent  construc- 
tion of  its  road,  deluged  a  highway  along 
which  plaintiff's  children  were  accustomed 
to  go  afoot  to  school,  and  thereby  so  ob- 
structed it  for  two  months  as  to  compel  his 
children  either  to  remain  at  home  or  to 
attend  school  by  some  other  means  than  on 
foot.  He  employed  two  horses,  as  long  as 
the  obstruction  continued,  in  carrying  his 
children  to  school,  at  a  cost  of  twenty-four 
dollars  for  horse  feed.  Held,  that  he  was 
entitled  to  recover  of  the  company  an 
amount  equal  to  his  children's  share  of  the 
school  fund  for  two  months,  if  that  share 
was  less  than  the  value  of  the  horse  feed ; 
if  greater,  then  to  recover  the  value  of  the 
horse  feed.  Satine  &*  E.  T.  R.  Co.  v,  John- 
son, 65  Tex.  389. 


■I  s 


716        STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  420-422. 


:i,i 


I    ? 


420.  Action  at  law  by  town  for 
damaireii  or  for  removal  of  obstruc- 
tion. —  Towns  have  a  qualified  interest  in 
the  roadways  and  bridges  they  have  erected, 
and  may  maintain  an  action  on  the  case  for 
the  destruction  or  obstruction  of  the  road, 
or  the  conversion  of  the  materials.  Troy 
v.  Lf'ifsAirt  R.  Co.,  23  A^  H,  83.— Approved 
IN  Laconia  v.  Gilman,  55  N.  H.  137  ;  Rosen- 
thal V.  Taylor,  B.  &  H.  R.  Co.,  79  Tex.  325. 
Followed  in  Baltimore  &  P.  R.  Co.  v. 
Fifth  Baptist  Church,  137  U.  S.  568.  Not 
FOLLOWED  IN  Carl  V.  Sheboygan  &  F.  du 
L.  R.  Co.,  46  Wis.  625.  Quoted  in  Chi- 
cago &  E.  I.  R.  Co.  V.  McAuley,  121  III.  160. 
Reviewed  in  St.  Louis,  V.  &  T.  H.  R.  Co. 
V.  Summit,  3  111.  App.  155;  Henderson  v. 
New  York  C.  R.  Co.,  78  N.  Y.  423. 

An  injury  from  obstructing  streets  is  to 
the  general  public  rather  than  to  the  city, 
but  when  the  control  of  the  streets  has 
been  conferred  upon  the  city,  it  may  in- 
stitute proceedings  to  remove  obstructions. 
JRio  Grande  Ji.  Co.  v.  Brownsville,  45  Tex. 
88.  13  Am.  Ky.  Hep.  223. 

421.  Proceedinijr  in  equity  by  town 
to  test  riglit  of  company  to  occupy 
highway. — Where  a  company,  under  a  gen- 
eral grant  of  power,  lays  out  and  constructs 
its  road  over  and  along  a  public  highway, 
the  town  within  which  such  highway  is 
situated  may  proceed  in  equity  against  the 
company  in  the  supreme  court,  under  its 
general  jurisdiction  in  matters  of  nuisance, 
in  order  to  ascertain  whether  such  laying 
out  and  construction  is  or  is  not  within  the 
power  granted  to  the  corporation  ;  and  it  is 
immaterial,  in  this  respect,  whether  the  way 
in  question  is  a  highway,  properly  so  called, 
or  a  town  way.  Springfield  v.  Connecticut 
River  R.  Co.,  4  Cush.  {Mass.)  63.— Ex- 
plained in  Easton  &.  A.  R.  Co.  v.  Green- 
wich. 25  N.  J.  Eq.  565.  Reviewed  in 
Lawrence  County  v.  Chattaroi  R.  Co..  81 
Ky.  225;  Hannibal  v.  Hannibal  &  St.  J.  R. 
Co..  49  Mo.  4S0. 

The  town  was  divided  and  a  part  of  it 
established  as  a  new  town,  after  the  com- 
mencement of  such  suit.  Upon  the  divi- 
sion the  highway  fell  within  the  limits  of 
the  new  town,  and  the  act  for  the  division 
provided  that  such  suit  should  be  assumed, 
and  might  be  prosecuted  to  final  judgment, 
by  the  new  town,  at  its  expense  and  for  its 
benefit,  but  in  the  name  of  the  old  town. 
Held,  that  the  division  did  not  operate  to 
vacate  or  otherwise  affect  the  suit.   Spring- 


field V.  Connecticut  River  R.  Co.,  4  Cwk, 
{Mass.)  63. 
422.  Enjoining  obstructions.— 

(i)  In  general.  —  Where  a  city,  under  ex- 
press legislative  authority,  fairly  enters  into 
a  contract  with  a  company,  whereby  the 
use  of  certain  parts  of  streets  is  granted 
to  the  latter  for  its  main  and  side  tracks, 
switches,  frogs,  etc.,  with  the  right  in  the 
company  to  grade  and  improve  such  parti 
of  the  streets  as  it  may  desire,  subject  to 
the  restriction  that  the  improvement  of 
the  streets  shall  be  so  made  that  wagons, 
drays,  and  other  vehicles  may  cross  over 
the  same  conveniently,  the  courts  will  en- 
force such  contract ;  and  if  the  company, 
or  its  successor,  afterwards  attempts  to  erect 
obstructions  on  the  parts  of  such  streets  so 
as  to  interfere  materially  with  the  passage 
of  vehicles  over  the  same,  a  court  of  equity 
will  enjoin  such  attempted  acts,  but  will 
not  enjoin  arts  permitted  by  the  contract. 
Chicago,  Ji.  &•  Q.  R.  Co.  v.  Qtiincy,  136  ///. 
489,  27  N.  E.  Rep.  232;  reversing  32  lit, 
App.  377- 

On  allowing  an  injunction  ap;iiinst  a  com- 
pany from  any  further  work  on  or  obstruc* 
tion  of  a  higliway,  the  court  may,  on  final 
hearing,  require  the  removal  of  the  obstruc- 
tions already  placed  thereon,  in  case  the 
company  refuses  to  restore  such  highway 
to  its  former  usefulness.  State  ex  rel.  v. 
Dayton  &*  S.  E.  R.  Co.,  5  Am.  &*  Etig.  R. 
Cas.  312,  36  Oil  to  St.  434. 

A  casual  iind  temporary  obstruction  made 
in  laying  down  rails  through  the  streets 
of  a  city,  unless  wantonly  made,  will  form 
no  ground  for  an  action  at  law,  much  lest 
for  an  injunction.  Sargent  v.  Ohio  &*  M, 
R.  Co.,  I  Handy  (Ohio)  52. 

A  company  authorized  to  stop  up  any 
streets  required  for  its  works,  and  by  subse- 
quent act  empowered  to  make  its  railway 
on  a  level  according  to  which  it  would  pass 
eighteen  feet  below  the  level  of  a  certain 
street,  was  enjoined  from  permanently  stop- 
ping up  such  street  until  the  hearing  of  the 
cause.  Attorney-General  v.  Great  Eastern 
R.  Co.,  25  L.  T.  867. 

(2)  At  suit  of  the  public. — Township  au- 
thorities who  are  liable  to  indictment  for 
failing  to  keep  highways  in  good  order  and 
repair  have  surh  a  special  interest  as  to  en- 
title them  to  flic  a  bill  in  their  own  name  to 
restrain  a  company  from  obstructing  a  high- 
way. Eitston  &*  A.  R.  Co.  v.  Greenwich,  25 
N.J.Eq.i^l. 


STREETS  AND   HIGHWAYS   (RAILWAYS   IN),  423. 


717 


All  public  streets  and  highways  are  for  the 
use  of  the  people  of  the  whole  state,  whether 
located  in  town  or  country.  The  interest  in 
•uch  case  or  the  ownership  thereof  is  pubUci 
juris  :  and  the  appropriation  of  such  streets 
to  private  or  corporate  use  without  author- 
ity of  law,  and  the  consequent  obstruction 
of  them  and  impediments  to  travel  occa- 
sioned thereby,  constitute  a  nuisance,  and 
justify  an  injunction,  the  people  of  the  state 
being  the  appropriate  parties  to  seeic  and 
enforce  the  necessary  remedy.  Peofilt  v. 
Ntw  York  &*  H.  Ji.  Co.,  45  Bard.  {N.  V.)  73. 

In  actions  to  restrain  defendant  from  lay- 
ing tracks  and  erecting  buildings  upon  land 
claimed  by  plaintiff  to  be  one  of  its  streets, 
it  appeared,  and  the  court  found,  that  prior 
to  1853  the  land  had  become  a  highway  by 
dedication.  In  that  year  a  railroad  com- 
pany, to  whose  rights  defendant  succeeded 
without  the  consent,  so  far  as  appeared,  of 
the  owner  of  the  land  or  of  plaintiff,  laid 
down  tracks  along  the  easterly  side  of  the 
street,  occupying  all  but  thirty  feet  of  its 
width,  and  also  built  a  freight  house  at  one 
end  of  the  street,  entirely  obstructing  the 
street  at  that  end.  After  the  tracks  were 
laid  teams  and  vehicles  passed  along  the 
street  west  of  the  tracks,  and  after  the 
freight  house  was  built  they  passed  to  the 
west  of  it  over  a  vacant  lot  outside  the  line 
of  the  street,  still  continuing  to  use  the  un- 
obstructed portion  of  the  street.  In  1883 
defendant  obtained  from  the  original  owner 
of  the  premises  a  quit-claim  deed  of  the 
rights  and  interests  it  had  in  1853,  "  if  any, 
in  the  land  covered  by  said  alleged  ♦  ♦  ♦ 
street."  In  188;  defendant  commenced 
laying  an  additional  track  in  the  street. 
About  1887  the  freight  house  was  torn  down 
and  defendant  began  the  construction  of  a 
new  one  occupying  more  of  the  street. 
Held,  that  the  actions  were  maintainable. 
Cohoes  V.  Delaware  &*  H.  Canal  Co.,  134  N. 
V.  397.  3»  ^V  £■  Rfp-  887.  47  N.  Y.  S.  It. 
612 ;  reversing  54  Hun  558,  27  A^.  Y.  S.  R, 
613.  7  N.  Y.  Supp.  885. 

It  wa&  claimed  by  defendant  that  the 
actions  were  not  maintainable  because  plain- 
tiflf's  mayor  and  common  council  had  not 
determined  the  width  of  the  street  accord- 
ing to  the  use  that  had  been  made  of  it,  as 
required  by  the  provision  of  the  statute 
making  it  the  duty  of  highway  commis- 
sioners to  cause  roads  laid  out,  but  not 
sufficiently  described,  and  those  used  for 
twenty  years  but  not  recorded,  to  be  ascer- 


tained, described,  and  entered  on  record. 
(I  Rev.  St.  SOI,  §  I,  subd.  3.)  There  was  no 
finding  or  evidence  that  (he  provisions  of 
the  statute  had  not  been  complied  with. 
Held,  that  conceding  the  application  of  the 
statute  to  incorporated  cities  (as  to  which, 
quare),  it  was  to  be  presumed  that  tlie 
city  officials  had  performed  their  duty. 
Cohoes  V.  Delaware  &*  H.  Canal  Co.,  134  M 
y-  397.  31  N.  £.  Hep,  887,  47  A^.  Y.  S.  R. 
612  ;  reversing  54  Hun  358,  27  N.  Y.  S.  R. 
613,  7  N.  Y.  Supp.  885. 

It  is  not  necessary  that  a  bill  to  enjoin  an 
obstruction  of  a  township  public  road  should 
be  instituted  in  the  name  of  the  common- 
wealth at  the  instance  of  the  attorney-gen- 
eral, but  such  bill  is  maintainable  in  the 
name  of  the  township.  Appeal  of  North 
Manheim  Tp.,  36  Am.  &*  Eng.  R,  Cat.  194, 
22  W.  N.  C.  (Pa.)  149,  14  All.  Rep.  137. 

(3)  At  suit  of  individuals.  —  The  unau- 
thorized obstruction  of  a  street  or  landing 
by  a  railroad  track  is  such  a  special  injury 
to  the  owner  as  will  entitle  him  to  an  in- 
junction to  restrain  it.  Schurmeier  v.  St. 
Paul  **  P.  R.  Co.,  10  Minn.  82  (Gil.  59). 

Where  a  company  has  threatened  and 
begun  to  erect  a  permanent  obstruction  in 
a  street,  and  the  highway  commissioners, 
though  requested  so  to  do,  refused  to  inter- 
fere officially,  a  resident  taxpayer  owning 
land  upon  such  street  may  jom  the  com- 
missioners with  the  company  in  an  appli- 
cation for  an  injunction  to  restrain  the 
erection  of  the  obstruction.  Overton  v. 
Olean,  37  Hun  {N.  Y.)  47. 

The  occupiers  of  houses  upon  lands  sold 
by  the  crown,  and  through  which,  while 
owned  by  the  crown,  a  railway  was  con- 
structed and  level  crossmgs  made,  are  en- 
titled to  use  such  crossings,  and  an  injunc- 
tion will  be  granted  against  their  obstruction, 
but  not  so  as  to  prevent  the  company  from 
using  the  railway  for  the  reasonable  working 
of  traffic.  United  Land  Co.  v.  Great  Eastern 
R.  Co..  L.R.  10  Ch.  586,  23  W.  R.  896,  33 
L.  T.  292;  affirming  L.  R.  17  Eq.  158,  43 
L.  f.  Ch.  363,  29  L.  T.  498,  22  W.  R.  126. 

423.  Bemoval  by  surveyors  of 
highways.  —  The  fact  that  the  rails  of  a 
private  railroad  were  placed  on  a  highway 
by  permission  of  the  town  authorities,  who 
permitted  them  to  remain  there  for  a  series 
of  years,  does  not  prevent  the  surveyors  of 
highways  from  removing  them  if  they  deem 
then  an  obstruction  to  public  travel.  Be^ 
r.    i  Brick  Co.  V.  Foster,  1 1 5  Mass.  43'' 


"'II 


li- 


:! 


718  STREETS  AND  HIGHWAYS  (RAILWAYS  IN),  424,485.— STRIKES,  1. 


I         'V'      ■<  < 


t    f^ 


; 


424.  Action  by  county  comnils- 
■lonera.— Where  an  obstruction  is  created 
by  a  railroad  in  a  state  or  county  road,  and 
the  corporation  limits  oi  a  municipal  corpo- 
ration are  extended  over  a  part  of  the  road 
so  obstructed,  the  county  commissioners 
cannot  maintain  an  action  for  the  obstruc- 
tion of  that  pail,  of  the  highway  which  is 
within  the  limits  of  the  corporation.  Law- 
r*HC.*  R.  Co.  V.  Mahoning  County  Com'rs,  35 
Ohio  St.  I. 

An  action  by  county  commissioners  for 
the  obstruction  of  a  county  road  by  a  rail- 
road was  pending  at  the  passage  of  Ohio 
Act  of  March  7,  1873 ;  and  on  May  31, 1873, 
the  court,  by  consent  of  parties,  made  an 
order  that  the  cause  should  sund  as  though 
commenced  on  that  day.  ////</,  that  the 
action  must  be  regarded  as  one  prosecuted 
under  the  act  of  1873.  Lawrmct  R.  Co.  v. 
Mahoning  County  Com'rt,  35  Ohio  St.  i. 

The  remedy  given  to  the  county  commis- 
sioners by  Ohio  Act  of  March  7,  1873  (70 
Ohio  L.  53),  for  the  obstruction  of  a  state 
or  county  road  is  cumulative,  and  does  not 
aflect  the  right  of  the  state  to  petition 
equity  to  compel  a  railroad  to  perform  the 
condition  on  which  its  franchise  was  granted. 
State  ex  rtl.  V.  Dayton  &*  S.  E.  R.  Co.,  5 
Am.  &*  Eng.  R.  Cat.  313,  36  Ohio  St.  434. 

425.  Actions  for  statutory  penal- 
ties.—In  an  action  under  the  Illinois  statute 
to  recover  a  penalty  from  a  company  for  ob- 
structing a  highway  crossing,  it  is  not  nec- 
essary to  allege  that  the  defendant  is  the 
owner  of  the  road.  It  is  liable  for  the  pen- 
alty provided  for  each  offense  alleged  and 
proved,  the  same  as  in  case  of  an  engineer 
or  conductor.  Jmiianapolis  &*  St.  L.  R. 
Co.  V.  Ptopit,  32  ///.  App.  286.— Reviewing 
Illinois  C.  R.  Co.  v.  Kanouse,  39  III.  2/2 ; 
Toledo,  W.  &  W.  R.  Co.  v.  People, 81  111.  141. 

A  suit  to  recover  a  penalty  provided  for 
by  I  Ind.  Rev.  St.  1852,  ch.  103,  §  25,  is  a 
civil  suit  and  is  no  bar  to  a  criminal  prose- 
cution. Indiana  C.R.  Co.m,  Potts,  7  /nd. 6Si. 

In  actions  prosecuted  under  the  Ohio 
statutes,  for  a  penalty  for  obstructing  a 
public  road,  where  the  obstruction  is  alleged 
to  have  been  caused  by  a  ca;-,  or  cars,  or 
locomotive,  it  must  be  averred  in  the  peti- 
tion that  the  public  road  or  highway  was 
obstructed  unnecessarily,  by  permitting 
such  car,  or  cars,  or  locomotive,  to  remain 
upon  or  across  the  highway  for  a  longer 
period  than  five  minutes,  to  the  hindrance, 
etc.    In  actions  for  obstructions  to  public 


roads  caused  by  agencies  other  than  rail- 
road cars  and  locomotives,  in  describing  the 
manner  of  the  obstruction,  the  word  "  un- 
necessarily "  forms  no  essential  part  of  the 
description  of  the  cause  of  action.  Burton 
Tp.  v.  TuttU,  30  Ohio  St.  6a. 


STRICT  CONSTRUCTION. 

Of  bill  of  lading  aa  against  the  carrier,  see 
Hills  of  Lading,  30. 

—  charters,  in  favor  of  the  public,  tee  CHxa- 

TBRS,  57. 

—  condemnation  laws  in  favor  of  landowner, 

see  Eminent  Domain,  47. 

—  contracts  limiting  liability  against  com- 

pany, see  Limitation  of  Liability,  43. 
when  proper,  see  Contracts,  23. 

—  delegated  power  to  condemn   land,  see 

Eminent  Domain,  88. 

—  grant  of  power  to  condemn  private  prop- 

erty, see  Eminent  Domain,  03. 
^  land  grants,  see  Land  Grants,  4. 

—  municipairgrant  to  run  steam  railroad  in 

street,  see  Streets  and  Highways,  80. 

—  power  of  city  to  grant  right  of  way  in 

streeta,  see  Streets  and  Highways,  72. 

—  statutes,  see  Statutes,  45,  46. 

as  to  donations  to  railways,  see  Munic- 
ipal AND  Local  Aid,  240. 

mode  ofaasessing  land  damages, 

see  Eminent  Domain,  440,  450. 

relative  to  municipal  aid  to  railways, 

see  Municipal  and  Local  Aid,  55. 

—  statutory  liability  of  stockholders  to 
creditors,  see  Stockholders,  30. 

power  to  mortgage,  see  Mortgages,  8. 

provisions  as  to  eminent  domain  pro- 
ceedings, see  Eminent  Domain,  235f 
236. 


STRIKES. 
Delays  caused  by,  see  Carriage  or  Merchan-. 

DISE,  143. 

Liability  for  cars  deatroyed  by  atrikers,  see 

Counties,  3. 
When  excuse  delay  on  part  of  carrier,  see 

Carriage  of  Merchandise,  48. 
—  excuse  the  carrier  for  loss  or  delay,  see 

Carriage  of  Merchandise,  18. 

1.  When  an  excuse  for  delay  In  for- 
warding  goods.*  —  Where  a  carrier  is 
sued  for  a  delay  in  the  transportation  and 
delivery  of  live  stock,  if  the  delay  is  caused, 
not  by  the  negligence  or  wrongfid  act  of  the 

*  See  also  Carriage  op  Merchandise,  18« 
48,  143. 

Delay  caused  by  strikes  and  mobs ;  liability  of 
canier  for,  sec  note,  4s  Am.  &  Eno.  R.  Cas.  339. 


STRIKES,  1. 


719 


carrier  or  its  employes,  but  solely  by  the 
violence  and  riotous  conduct  of  a  lawless 
mob,  which  the  carrier  and  the  civil  author* 
ities  are  unable  to  resist  or  control,  the  car- 
rier is  not  liuble  (or  the  delay.  Lakt  Short 
&*  Af.  S.  li.  Co.  V.  BtHHttt,  6  Am.  6»  Et^. 
A\  Cas.  391. 89  Ind.  457.— Following  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  V.  Hoilowell,  65 
Ind.  188,  33  Am.  Rep.  63.— Followed  in 
Geismer  v.  Lake  Shore  &  M.  S.  R.  Co.,  36 
Am.  &  Eng.  R.  Cas.  387,  io3  N.  Y.  563,7  N. 
E.  Rep.  828,  3  N.  Y.  S.  R.  ii^.—PHlsburgh, 
C.  6*  Si.  L.  R.  Co.  V.  HoUowttI,  65  Ind.  188. 
—Followed  in  Geismer  v.  Lake  Shore  ft 
M.  S.  R.  Co..  26  Am.  &  Eng.  R.  Cas.  387. 
102  N.  Y.  563,  7  N.  E.  Rep.  828.  3  N.  Y.  S. 
R.  si^.— Pittsburgh.  Ft.  W.  &»  C.  Ji.  Co.  v. 
Haatn,  84  ///.  36,  16  Am.  Ry.  Rep.  433.  In- 
dianapolis &*  St.  L.  R.  Co.  V.  Juntgen,  10 
///.  App.  395.— Followed  in  Geismer  v. 
Lake  Sliore  &  M.  S.  R.  Co.,  36  Am.  &  Eng. 
R.  Cas.  387,  102  N.  Y.  563,  7  N.  E.  Rep. 
828,  2  N.  Y.  S.  R.  11^.— International  &*  G. 
N.  R.  Co.  V.  Tisdale,  74  Tex.  8,  11  S.  W. 
Rep.  900.  Gulf,  C.  «S-  S.  F.  R.  Co.  v.  Gate- 
Wv  d,  79  Tex.  89,  14  5.  W.  Rep.  913.  South- 
ern Pac.  R.  Co.  S.Johnson,  45  Am.  &*  Eng. 
R.  Cas.  338,  4  Tex.  App,  (Civ.  Cas.)  69,  15 
S.  IV.  Rep.  121. 

The  carrier  is  only  required  to  take  due 
care  of  the  freight.  Gulf,  C.  &*  S.  F.  R. 
Co.  V.  Levi,  43  Am.  6-  Eng.  R.  Cas.  439,  76 
Tex.  337,  13  .S.  W^.  Rep.  191.  8  L.  R.  A.  323  ; 
reversing  40  Am.  &*  Eng.  R.  Cas.  115.  12 
S.  W.  Rep.  677. 

A  common  carrier  may  be  held  liable  for 
a  delay  caused  by  a  mere  refusal  of  its  em- 
ployes to  do  their  duty,  but  it  is  not  liable 
where  the  delay  is  the  result  solely  of  the 
violence  of  men  not  in  its  employ.  Indian- 
apolis 6-  St.  L.  R.  Co.  v.  Juntgen,  10  ///. 
App.  295  -Quoting  Pittsburgh,  Ft.  W.  & 
C.  R.  Co.  V.  Hazen,  84  III.  ^6.— Pittsburgh, 
Ft.  IV.  &*  C.  R.  Co.  V.  HaMen,  84  ///.  36,  16 
Am.  Ry.  Rep.  422.— Followed  in  Geismer 
V.  Lake  Shore  &  M.  S.  R.  Co.,  26  Am.  &  Eng. 
R.  Cas  287,  103  N.  Y.  563,  7  N.  E.  Rep.  838, 
2  N.  Y.  J.  R.  514.  Quoted  in  Indianapolis 
&  St.  L.  R.  Co.  V.  Juntgen,  10  111.  App.  29$. 
Reviewed  in  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Levi,  43  Am.  &  Eng.  R.  Cas.  439,  76  Tei. 
337,  13  S.  W.  Rep.  191,  8  L.  R.  A.  333. 

The  fact  that  a  company  has  reduced  the 
wages  of  its  employes  cannot  be  held  to 
justify  or  excuse  a  mob  composed  of  indis- 
criminate persona  in  stopping  trains  and 
delaying  the  transportation  of  goods,  nor 


can  the  company  be  held  responsible  for 
the  consequences  of  such  unlawful  proceed- 
ings when  they  cause  such  delay.  Laht 
Shore  5*  M.  S.  R.  Co.  v.  Bennett,  6  Am.  S* 
Etig.  R.  Cas.  391, 89  Ind.  457.— Following 
Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Hoilowell. 
65  Ind.  188,  33  Am.  Rep.  6y— Pittsburgh, 
C.  6*  St.  L.  R.  Co.  V.  Hoilowell,  65  Ind.  188. 
—Followed  in  Lake  Shore  &  M.  S.  R.  Co. 
V.  Bennett,  89  Ind.  457. 

When  misconduct  of  men  acting  unlaw- 
fully, such  as  incendiaries,  mobs,  etc.,  delays 
the  running  of  trains,  the  only  duty  resting 
upon  the  carrier,  if  not  otherwise  in  fault, 
is  to  use  reasonable  diligence  to  overcome 
the  obstacles  interposed  and  to  forward  the 
goods.  Geismer  v.  Lake  Shore  &*  M.  S,  R, 
Co.,  26  Am.  &»  Eng.  R.  Cas.  387,  103  A':  Y, 
563,  7  N.  E.  Rep.  838.  3  N.  Y.  S.  A  514; 
reversing  34  Hun  50.— Following  Pitts* 
burgh.  Ft.  W.  ft  C.  R.  Co.  v.  Hazen,  84  III. 
36 ;  Pittsburgh.  C.  ft  St.  L.  R.  Co.  v.  Hollo- 
well,  65  Ind.  188 ;  Lake  Shore  ft  M.  S.  R. 
Co.  V.  Bennett,  6  Am.  ft  Eng.  R.  Cas.  391, 
89  Ind.  457 ;  Indianapolis  ft  St.  L.  R.  Co.  v. 
Juntgen,  10  III.  App.  29$. 

The  facts  that  persons  who  formed  them- 
selves into  a  mob  and  organized  arrange* 
ments  to  hinder  the  running  of  trains  were 
employes  of  the  company,  engaged  by  it  to 
render  the  various  services  needful  m  oper- 
ating the  road,  that  they  united  in  a 
"strike,"  and  engaged  in  lawless  acts  of 
violence,  injurious  to  the  property  and  dis- 
cipline of  the  company,  and  which  for  a 
time  prevented  the  running  of  trains,  as  a 
means  of  coercing  the  company  in  yielding 
to  their  demands  upon  it,  relative  to  hours 
of  labor,  rate  of  wages,  and  like  matters,  and 
that  the  company  might  have  put  an  end  to 
the  strike  and  the  detention  by  yielding  to 
such  demands,  but  did  not  do  so,  do  not 
prevent  the  company  from  interposing  the 
detention  as  a  defense  to  a  demand  of  ship- 
pers of  goods  over  the  road,  for  damages 
for  delay  in  transportation,  especially  if  it 
had,  throughout  the  detention,  employes  at 
hand  who  were  able  and  willing  to  move  the 
trains  required  for  carriage  of  plaintiff's 
goods,  but  who  were  forbidden  and  pre- 
vented by  the  violent,  lawless  acts  of  the 
strikers.  Geismer  v.  Lake  Shore  ^  M.  S.  R. 
Co.,  26  Am.  &»  Eng.  R.  Cas.  287.  102  A^.  Y. 
563.  7  A';  E.  Rep.  838,  3  N.  Y.  S.  R.  $141 
reversit^  34  Hun  5a  —  Distinguishing 
Weed  V.  Panama  R.  Co.,  17  N.  Y.  362; 
Blackstock  v.  New  York  ft  E.  R.  Ca,  I 


■•'S 

f 


if 


780 


STRIKES,  2-4. 


Bosw.  n,  20  N.  Y.  48.— Followed  in  Lit- 
tle V.  Fargo,  43  Hun  233,  5  N.  Y.  S.  R.  462. 
Reviewed  in  Gulf.  C.  &  S.  F.  R.  Co.  v. 
Levi,  42  Am.  &  Eng.  R.  Cas.  439.  76  Tez. 
337,  13  S.  W.  Rep.  191,  8  L.  R.  A.  323. 

Lawless  acts  of  employes,  adverse  to  the 
interests  and  contrary  to  the  orders  of  the 
employer,  cannot  be  imputed  to  it  as  having 
been  doi  e  by  its  agents  and  servants.  Gtii- 
ttw  V.  ii*  Shore  &*  M.  S.  H.  Co,,  26  Am. 
Cf'  '  .  Ji.  Cas.  287,  102  N.  y.  563,  7  A';  E. 
Kei.  62i,  2  N.  Y.  S.  R.  514;  revtrsing  34 
H:  t  so. 

Si. and  when  not.  —  Where  the 

nploy^s  of  a  company  suddenly  refuse  to 

ork,  and  are  discharged,  and  delay  results 
.'rom  the  failure  of  the  company  promptly  to 
supply  their  places,  the  company  is  respon- 
r/ible  tor  any  damage  caused  by  such  delay ; 
but  where  the  places  of  the  recusant  em- 
ploy6s  are  promptly  supplied  by  other  com- 
petent men,  and  the  "strikers"  then  pre- 
vent the  new  employes,  by  lawless  and  irre- 
sistible violence,  from  doing  duty,  the  com- 
pany is  not  responsible  for  delay  caused 
solely  by  such  lawless  violence.  Pittsburgh, 
Ft.  IV.  &»  C.  R.  Co.  v.  Hamn,  84  ///.  36,  16 
Am.  Ry.  Rep.  422. 

The  sudden  and  wrongful  refusal  of  its 
employ6s  to  work  will  not  excuse  a  railroad 
company  for  failure  to  transport  freight  in 
the  usual  time.  Read  v.  St.  Louis,  K.  C.  &* 
N.  R.  Co.,  60  Mo.  199,  9  Am,  Ry.  Rep.  209. 
—Following  Blackstock  v.  New  York  & 
E.  R.  Co.,  20  N.  Y.  48;  Weed  v.  Panama 
R.  Co.,  17  N.  Y.  362.— Quoted  in  Schwab 
V.  Union  Line,  13  Mo.  App.  159. 

When  a  party,  by  his  own  contract, 
creates  a  duty  or  charge  upon  himself,  he  is 
bound  to  make  it  good,  notwithstanding 
any  accident  by  inevitable  necessity,  because 
he  might  have  provided  against  it  by  his 
contract.  White  v.  Missouri  Pac.  R.  Co.,  19 
Mo.  App.  400.— Quoting  Harrison  v.  Mis- 
souri Pac.  R.  Co.,  74  Mo.  364. 

A  carrier  is  liable  for  u  delay  in  the  trans- 
portation of  freight  beyond  the  usual  time, 
which  is  caused  by  a  large  number  of  its  em- 
ploy^ suddenly  and  wrongfully  refusing  to 
work.  Blackstock  v.  New  York  &»  E.  R.  Co., 
30  N.  Y.  48 ;  affirming  i  Bosw.  77.— Fol- 
lowing Weed  V.  Panama  R.  Co.,  17  N.  Y. 
362.— Distinguished  in  Geismer  v.  Lake 
Shore  &  M.  S.  R.  Co.,  26  Am.  &  Eng.  R. 
Cas.  287.  102  N.  Y.  563.  7  N.  E.  Rep.  828,  2 
N.  Y.  S.  R.  514;  Gulf,  C.  4  S.  F.  R.  Co.  v. 
Levi,  42  Am.  4  Eng.  R.  Cas.  439,  76  Tex. 


337.  13  S.  W.  Rep.  191.  8  L.  R.  A.  323. 
Followed  in  Read  v.  St.  Louis.  K.  C.  & 
N.  R.  Co..  60 Mo.  199.  Set  Geismer  v.  Lake 
Shore  &  M.  S.  R.  Co.,  26  Am.  &  Eng.  R. 
Cas.  287.  102  N.  Y.  563,  7  N.  E.  Rep.  828.  2 
N.  Y.  S.  R.  514. 

Out  of  a  total  of  168  engineers  140  sud- 
denly quit  work,  for  the  purpose  of  com- 
pelling the  company  to  rescind  a  certain 
reasonable  regulation.  Held,  that  the  com- 
pany was  liable  for  a  delay  in  transporting 
property,  though  no  fault  could  be  charged 
against  the  superior  officers.  Blackstock  v. 
New  York  6-  E.  R.  Co.,  20  N.  Y.  48 ;  af- 
firming I  Bosw.  77. 

3.   Rule  as  to  perishable 

freight. — ^The  rule  that  a  common  carrier 
is  an  insurer  of  the  goods  transported,  and 
can  only  avoid  liability  for  their  loss  by 
showing  that  it  happened  by  the  act  of  God 
or  the  public  enemy,  does  not  apply  where 
the  damage  to  the  good:,  resulted  from  de- 
lay in  their  delivery  by  accident  or  misfor- 
tune, although  not  inevitable  or  produced 
by  the  act  of  God.  Where,  therefore,  the 
delivery  of  perishable  freight  was  delayed 
by  th'>  seizure  01  the  cars  by  a  mob  of  rioters, 
the  carrier  is  not  liable  for  the  depreciation 
in  its  value  caused  thereby  under  Tex.  Rev. 
St.  art.  277.  which  declares  that  "  the  duties 
and  liabilities  of  carriers  shall  be  the  same 
as  are  prescr^^  ^  by  the  common  law  except 
when  other  '.c  provided."  Gulf,  C.  &»  S. 
F.  R.  Co.  V.  Levi,  42  Am.  &*  Eng.  R.  Cas. 
439.  76  Tex.  337,  135.  W.  Rep.  191.  8  L.  R. 
A.  323 ;  reversing  40  Am.  &*  Eng.  R.  Cas. 
115.  12  S.  W.  Rep.  677.— Distinguishing 
Weed  V.  Panama  R.  Co..  17  N.  Y.  362; 
Blackstock  v.  New  York  &  E.  R.  Co.,  20  N. 
Y.  48.  Reviewing  Haas  v.  Kansas  City, 
Ft.  S.  &  G.  R.  Co.,  35  Am.  &  Eng.  R.  Cas. 
572,  81  Ga.  792;  Geismer  V.  Lake  Shore  & 
M.  S.  R.  Co..  102  N.  Y.  563. 

4.  Liability  for  injury  to  passen- 
gers by  strikers.* — Where,  by  the  exer- 
cise of  ordinary  care,  danger  to  passengers 
may  be  anticipated  from  the  attack  of  a  mob 
of  striking  laborers  upon  laborers  of  another 
Hass.  taken  on  board  the  train,  it  will  be 
negligence  to  stop  the  train  at  a  place  not  a 
regular  station  for  stopping,  and  there  take 
on  such  objectionable  laborers,  and  thus 
expose  other  passengers  to  a  great  prril 
from  a  threatened  attack,  without  taking 
the  utmost  care  and  vigilance  to  prevent  in- 

*Sec  alto  Carriaob  or  Passinoers,  828. 


STRIKES,  6,  6. 


721 


A.  333. 

K.  C.  & 

r  V.  Lake 

Eng.  R. 

ep.  828,  2 

140  sud- 

of  corn- 
certain 
the  com- 
nsporting 

charged 
ckstock  V. 

48;  a/. 


jury  to  passengers.  In  such  case  the  oflen- 
sive  persons,  against  whom  an  attack  was 
reasonably  to  be  expected,  should  at  least 
be  .  '\aced  in  a  car  to  themselves,  where  they 
miglit  protect  tliemselves  without  danger  to 
the  regular  passengers,  having  no  notice  of 
the  danger,  or  extraordinary  precautionary 
measures  should  be  taken  to  prevent  the 
assault  of  the  mob,  Chicago  -S^  A.  /i.  Co. 
V.  PilUbury,  31  Am.  &*  Eng  A'.  Cas.  24,  123 
///.  9,  14  N.  E,  Rep.  22, 1 1   IVesi.  Rep.  757. 

In  an  action  by  a  passenger  to  recover  for 
an  injury  caused  by  a  wound  from  a  pistol- 
shot  fired  by  some  of  the  mob  attacking 
tne  car,  which  attack  might  reasonably 
have  been  expected,  the  court,  on  behalf  of 
the  plaintiff,  instructed  the  jury  that  it  was 
the  duty  of  defendant,  as  a  common  carrier 
of  passengers,  "  to  exercise  the  utmost  care, 
skill,  and  vigilance  to  carry  plaintifT  safely 
and  to  protect  him  from  any  and  all  danger, 
from  whatever  source  arising,  so  far  as  the 
same  could,  by  the  exercise  of  such  a  de- 
gree of  care  and  vigilance,  have  been  reason- 
ably foreseen  and  prevented."  Held,  that, 
as  applicable  to  the  facts  of  the  case,  the 
instruction  iiiaied  the  law  with  sufHcient 
accuracy.  CIticago  &*  A.  R.  Co.  v.  Pillsbury, 
31  Am.  &»  Eng.  R.  Cas.  24,  123  ///.  9,  14  A^. 
E.  Rep.  22,  II   IVest.  Rep.  7S7. 

It  is  not  the  duty  of  a  company  to  pro- 
vide a  police  force  sufficient  to  quell  a  large 
wayside  mob.  Passengers  must  take  the 
risk  of  injury  in  such  cases.  Pittsburgh, 
Ft.  W.  <S-  C.  R.  Co.  V.  Hinds,  53  Pa.  St.  512, 
—Reviewed  in  Batton  v.  South  &  N,  Ala, 
R.  Co.,  23  Am.  &  Eng.  R.  Cas.  514,  77  Ala. 
591,  54  Am.  Rep.  80. 

A  train  having  stopped  at  a  regular  sta- 
tion, a  riotous  crowd  rushed  upon  the  cars 
in  such  numbers  as  to  defy  the  power  of 
the  conductor  to  resist.  They  commenced 
a  fight  in  the  cars,  in  which  plaintiff  was 
injured.  Held,  that  the  fact  that  the  con- 
ductor knew  the  crowd  to  consist  of  im- 
proper persons  was  immaterial,  Pittsburgh, 
Ft.  W.  Sh  C.  R.  Co.  V,  Hinds,  53  Pa.  St.  512. 

-Explained  in  Putnam  v.  Broadway  & 
S.  A.  R.  Co..  15  Abb.  Pr.  N.  S.  (N.  Y.)  383, 
Quoted  in  Chicago  &  A,  R.  Co.  v.  Pills- 
bury,  (III.)  26  Am.  &  Eng.  R.  Cas,  241,  8  N, 
E,  Rep.  803. 

6.  Interference  with  receiver  — 
Contempt."'  —  Where  a  railroad  is  in  the 

*  Relation  of  strikem  and  receivers,  see  note, 
•S  Am,  &  Eng.  R.  Cas.  618. 

7  D.  R.  D.— 46 


hands  of  a  receiver,  employes  who  go  on  a 
strike  and  unlawfully  obstruct  the  operation 
of  engines  ur  cars  are  guilty  of  contempt  of 
court.     /«  re  Doolittle,  23  Fed.  Rep.  544. 

And  where  such  employes  go  armed  and 
overawe  other  employes  and  induce  them 
to  quit  work,  ihcy  are  guilty  of  contempt 
thouyli  they  c^nly  prefer  a  simple  request  to 
quit  work,  witiioui  any  threats  of  violence. 
In  re  Doolittle,  23  Fed.  Rep.  544, 

And  they  arc  li!:cwisc  guilty  of  contempt 
where  they  interfere  with  the  receiver's  man- 
agement by  simply  notify-'^p  the  men  to  quit 
work,  though  they  qual< ',  it  by  saying  that 
the  notification  is  not  to  be  taken  as  an  in- 
timidation.    /;/  re  Doolittle,  23  Fed.  Rep.  544. 

Where  a  road  is  in  the  hands  of  a  receiver, 
employes  who  are  dissatisfied  with  their 
wages  may  quit  work,  and  by  fair  persua- 
sion induce  others  to  do  so ;  but  if  they 
resort  to  threats  or  violence,  or  overawe 
others  by  demonstrations  of  force,  without 
actual  violence,  they  are  guilty  of  contempt. 
United  States  v,  Kane,  25  Am.  &*  Eng.  R, 
Cas.  608,  23  Fed.  Rep.  748. 

Receivers  are  sworn  officers  of  the  court, 
and  their  agents  and  employes  in  operating 
the  railway  are,  pro  hac  vice,  the  officers  of 
the  court.  As  such  officers,  they  are  re- 
sponsible to  the  court  for  their  conduct; 
and,  if  they  wilfully  injure  the  property  or 
endanger  it,  or  seek  to  cripple  its  operation 
in  the  hands  of  the  receivers,  they  can  and 
will  be  made  to  answer  therefor.  At  the 
same  time,  these  officers,  and  the  property 
of  the  company  in  the  custody  of  the  court, 
are  entitled  to  and  must  have  the  full  pro- 
tection that  the  court  can  give,  under  the 
laws  of  the  land ;  and  this  whether  the 
grievance  comes  from  within  or  without. 
In  re  Higgins,  27  Fed.  Rep.  443. 

Locomotive  engineers  cannot  be  com- 
pelled to  remain  in  service  after  a  road  has 
gone  into  the  hands  of  a  receiver,  but  if 
they,  or  an  organization  to  which  they  be- 
long, interfere  with  the  possession  of  the 
receiver  or  the  operation  of  the  road,  they 
may  be  punished.  Beers  v.  Wabash,  St.  L. 
&*  P.  R.  Co.,  35  Am.  &*  Eng.  R.  Cas.  646,  34 
Fed.  Rep.  244. 

O.  ItcNtraining  strikes  and  boy- 
cottH  in  equity.*  —  The  empl()y6s  of  a 
company  assume  the  implied  obligation  that 

*  Criminal  and  civil  liability  for  connpirRcle* 
known  as  "  boycotts," see  note,  sg  Am.  Rkp.  720. 

Strikes  and  boycotts,  see  note,  53  Am.  &  Eno. 
R.  Cas.  325, 


m 


I 


a 


11 


in 


I 'I 


722 


STRIKES,  7»  8. 


11 


rci 


m 


li 


they  will  not  leave  the  service  nor  refuse  to 
perform  their  duties  under  circumstances 
when  such  conduct  on  their  part  would 
imperil  lives  committed  to  the  company's 
control,  or  destroy  property  involving  ir« 
reparable  loss  and  injury,  or  visit  upon  it 
severe  penalties.  Tlie  right  of  the  employ^ 
in  ordinary  conditions  to  quit  the  master's 
service  at  his  option  does  not  apply  where 
he  is  employed  by  a  railroad  company.  To- 
lido,  A.  A.  &*  N.  M.  R,  Co.  v.  Pennsylvania 
Co.,  53  Am.  4*  Etig.  K.  Cas.  293,  54  Fed. 
Rep.  746. 

If  ruin  to  the  business  of  railroads  and 
disasters  to  the  public  are  the  result  of  con- 
spiracy, combination,  intimidation,  or  un- 
lawful acts  of  organizations  of  employes, 
the  courts  have  power  to  grant  relief  by 
restraining  employ6s  from  acts  of  commis- 
sion, violence,  or  intimidation,  or  from  en- 
forcing rules  and  regulations  of  organizations 
which  result  in  irremediable  injuries  to  their 
employers  and  to  the  public.  Toledo,  A.  A. 
6*  N.  M.  R.  Co.  V.  Pennsylvania  Co.,  53  Am. 
6*  Eng.  R.  Cas.  293,  54  Fed.  Rep.  746. 

Locomotive  engineers  and  firemen  in  the 
employ  of  a  company  which  is  enjoined  from 
refusing  to  handle  the  cars  of  a  connecting 
line,  which  ca's  its  employes  have  boycotted, 
having  knowledge  of  such  injunction,  are 
not  guilty  of  contempt  of  court,  if,  on  being 
ordered  by  their  employer  to  take  out  a 
train  containing  some  of  such  boycotted 
cars,  they  refuse,  and  immediately,  uncon- 
ditionally, and  in  good  faith  quit  their 
employment.  But  an  engineer  cannot  be 
permitted  to  pretend  to  quit  the  service 
of  his  company  for  the  evident  purpose  of 
evading  the  order  of  the  court  by  any  trick 
or  evasion.  If  lie  remains  in  the  company's 
service  and  refuses  to  handle  the  boycotted 
cars,  he  is  guilty  of  contempt  of  court.  To- 
ledo,  A.  A.  &*  N.  At.  R.  Co.  v.  Pennsylvania 
Co.,  53  Am.  6*  Eng.  R.  Cas.  293,  54  Fed. 
Sep.  746. 

While  one  or  more  employes  may  be  free 
to  quit  their  employer's  service  at  will,  a 
combination  of  a  number  of  them  to  do  so 
for  the  purpose  of  injuring  the  public  and 
oppressing  employers,  by  unjustly  subjecting 
them  to  the  power  of  confederates  for  ex- 
tortion or  mischief,  is  criminal.  Toledo,  A. 
A.  &»  N.  M.  R.  Co.  v.  Pennsylvania  Co.,  $3 
Am.  &»  Eng.  R.  Cas.  293,  $4  Fed.  Rep.  746. 

A  court  may  award  a  preliminary  injunc- 
tion to  prevent  the  chief  member  of  an 
organization  of  engineers  from  issuing  an 


order  in  the  nature  of  a  boycott  against 
another  road,  which  will  have  the  effect  of 
doing  irreparable  injury  to  its  business;  and 
if  such  order  has  already  been  made,  the 
court  by  mandatory  injunction  may  compel 
him  to  rescind  it,  especially  where  it  is  in 
violation  of  a  previous  injunction.  Toledo, 
A.  A.  &*  N.  Af.  R.  Co.  V.  Pennsylvania  Co., 
Si  Am.  6-  Eng.  R.  Cas.  307,  $4  Fed.  Rep.  730. 
—Applying  Sherry  v.  Perkins,  147  Mass. 
212,  17  N.  E.  Rep.  307;  Springhead  Spin- 
ning Co.  V.  Riley,  L.  R.  6  Eq.  551 ;  Casey 
V.  Cincinnati  Typographical  Union,  45  Fed. 
Rep.  135;  Emack  v.  Kane,  34  Fed.  Rep. 
47 ;  Coeur  D'Alene  C.  &  M.  Co.  v.  Miners' 
Union,  51  Fed.  Rep.  260. 

7.  Liability  of  company  to  sheriff 
for  protection  of  property.  —  Acom> 
pany  is  liable  for  money  paid  by  a  sherifl 
personally  to  mei;  employed  by  him,  and 
sworn  in  as  deputy  sheriffs  to  protect  the 
property  of  the  company  from  damage  ap- 
prehended from  strikers,  upon  its  express 
promise  to  pay  for  such  services,  after  having 
been  informed  by  the  sheriff  that  he  was 
able  to  command  the  peace  without  the  aid 
of  the  posse  comitatus,  and  that  if  the  men 
were  employed  the  county  would  not  pay 
them,  there  being  at  the  time  no  riotous  or 
unlawful  assembly.  In  such  case  section 
856,  fifth  division  of  Mont.  Comp.  St.,  in 
substance  empowering  a  sherifl  to  call  to 
his  aid  such  persons  as  may  be  necessary  to 
suppress  unlawful  assemblies,  and  section 
864,  prohibiting  a  sheriff  from  demanding 
for  official  services  any  greater  fees  than 
are  allowed  by  law,  are  not  available  as  a 
defense.  Sullivan  v.  Utah  &*  N.  R.  Co.,  11 
Mont.  236,  28  Pac.  Rep.  307.— Following 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Grafton,  51 
Ark.  504, 14  Am.  St.  Rep.  66. 

8.  Liability  of  county  for  property 
destroyed.— Where  goods  in  the  hands  of 
a  carrier  are  destroyed  by  a  mob  brought 
on  by  a  strike  of  railroad  men,  the  owner 
has  no  remedy  at  common  law  against  the 
county;  but  under  Pennsylvania  Act  of  May 
31, 1841,  certain  counties  in  that  state  are 
liable.  The  act  is  both  remedial  and  penal, 
and  must  be  liberally  construed,  and  is  not 
repealed  by  the  adoption  of  the  new  Consti- 
tution of  1877.  Allegheny  v.  Gibson,  90  Pa. 
St.  397. 

The  fact  that  the  county  authorities  are 
unable  to  quell  such  a  riot  does  not  limit 
the  liability  of  the  county  for  damage  done 
thereby ;  and  the  fact  that  the  property  is  in 


\ 


STRIKING  OUT— SUBROGATION,  1. 


723 


transitu  at  the  time  of  its  destruction  does 
not  exempt  the  county  from  liability,  and 
it  applies  as  well  to  the  property  of  non- 
residents as  to  the  property  of  citizens  of 
the  sute.  Allegheny  v.  Gibson,  90  Pa.  St.  397. 

It  is  not  necessary  that  a  property  owner 
should  give  notice  to  the  county  authorities, 
unless  he  has  knowledge  of  an  intention  on 
the  part  of  the  mob  to  destroy  his  property, 
and  sufficient  time  intervenes  to  enable  him 
to  give  the  notice.  Such  notice  is  not  neces- 
sary where  the  authorities  have  knowledge 
of  the  intention  or  attempt  to  destroy  the 
property.    Allegheny  v.  Gibson,  90  Pa.  St.  397. 

The  fact  that  the  state  when  called  upon 
rendered  assistance  and  sent  a  portion  of  its 
military  to  the  scene  of  the  disturbance  does 
not  absolve  the  county  from  its  obligation 
to  keep  the  peace,  nor  from  its  liability  for 
a  neglect  of  this  duty.  Allegheny  v.  Gibson, 
90  Pa.  St.  397. 

Under  N.  Y.  Act  of  1855,  ch.  428,  a  com- 
pany may  recover  from  a  county  the  value 
of  property  destroyed  by  a  mob  of  strikers, 
where  it  has  made  the  proper  appeal  to  the 
sheriff  for  protection,  which  has  not  been 
given.  Lake  Shore  &*  M.  S.  K.  Co.  v.  Erie 
County  Sup'rs,  2  N.  Y.  S.  R.  317,  41  Hun 
637,  mem. 


8TBIXIH0  OUT. 

Allegation  at  surplusage,  see  Aniiu  s.  Inju- 
ries TO,  305. 

Evidence,  see  Trial,  51. 

Irrelevant  testimony,  see  Witnesses,  61. 

Pleadings  or  allegations  therein,  see  Plead- 
ing, 107-171. 

Plea  on  appeal  from  justice's  court,  see  Jus- 
tice OF  THK  Peace,  18. 

—  or  answer  in  condemnation  proceedings, 
see  Eminent  Domain,  352 


BUBAOEVTS. 

Liability  of  agent   for  miscondnct  of,  see 

Agency,  32. 
Right  of  agent  to  employ,  see  Agincv,  26. 


SUBCONTRACTOR. 

Filing  of  lien  claim  by,  see  Liens,  32. 

Notice  by,  to  owner,  of  claim  for  Ilea,  see 
Liens,  33. 

Rights,  duties,  and  liabilitiea  of.  see  Con- 
struction of  Railways,  74-87. 

—  of,  to  claim  lien,  see  Liens,  18. 


SUBJECT. 
Of  act  to  be  expressed  In  title,  see  Chax- 

TERS,  3. 

SUBLETTING. 
By  lesaee,  see  Leases,  etc,  85-89. 


SUBMISSION. 
To  arbitration,  see  Arritration  and  Award, 

1-6. 
as  a  defense  to  actibn  for  damages,  see 

Eminent  Domain,  009. 

—  —  In  condemnation  proceedings,  validity 

of,  see  Eminent  Domain,  487. 
of  question  of  compensation,  see  Emi- 
nent Domain,  1 253. 

—  engineer  as  arbitrator,  what  Is  covered 

by,  see  Construction  of  Railways,  68. 


SUBF(ENA. 

Failure  to  obey  as  a  contempt,  see  Contempt, 
7,8. 

Issued  by  the  Interstate  commerce  commis- 
sion, see  Interstate  Commerce,  157, 
168. 

Non-compliance  with,  as  ground  for  continu- 
ance, see  Trial,  22. 

To  testify,  see  Witnesses,  1. 


SUBFCENA  DUCES  TECUM. 

Failure   to  obey  as  a  contempt,  see  Con- 
tempt, 8. 

See  also  Witnesses,  2. 


SUBROGATION. 

Of  bondholders  to  security  held  by  state,  see 
State  Aid,  11,  12. 

—  carrier  or  insurer  to  rights  of  insured,  see 

Fire  Insurance,  1 1-13. 

—  Insurer  to  owner's  right  to  sue  for  dam- 

ages caused  by  fire,  see  Fires,  138. 
To  laborer'^  lien,  see  Liens,  55. 

1.  Conventional— Necessity  of  ex« 
press  agreement.  —  Conventional  sub- 
rogation can  only  result  from  an  express 
agreement,  either  with  the  debtor  or  cred- 
itor. It  is  not  sufficient  that  a  person  pay- 
ing the  debt  of  another  should  do  so  merely 
with  the  understanding  on  his  part  that  he 
should  be  subrogated  to  the  :  ights  of  the 
creditor.  New  Jersey  Midland  K,  Co.  v. 
tVortendyie,  27  N.  /.  Eq.  658 ;  reversing  27 
N.  J.  Eq.  no.— Explained  in  Coe  v.  New 
Jersey  Midland  R.  Co.,  31  N.  J.  Eq.  105. 

The  right  of  subrogation  cannot  be  en- 
forced until  the  whole  debt  is  paid.    Aod 


I!  n 


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h  '^n 


til 
J' 


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ill 


724 


SUBROGATION,  2-4. 


until  the  creditor  be  wholly  satisfied,  there 
can  be  no  interference  with  his  rights  or  his 
securities  which  might,  even  by  bure  possi- 
bility, prejudice  or  embarrass  him  in  any 
way  in  the  collection  of  the  residue  of 
his  claim.  JV*iv  Jtrsty  Midland  R.  Co.  v. 
Worttndykt,  tj  N.  J.  Eq.  658 ;  reversing  rj 
N.J.  Eq.  no, 

2.  Of  surety  lu  condemnation  pro- 
ceedings.—Where  a  surety,  who  was  sub- 
rogated to  the  rights  of  a  landowner  to 
whom  the  former  had  been  compelled  to 
pay  the  debt  of  his  principal  for  land  taken 
by  the  principal  (a  railroad  company)  under 
the  exercise  of  the  right  of  eminent  domain, 
applied  to  the  court  to  enjoin  the  use  of  the 
company's  road  over  the  land  —  held,  that 
it  was  not  necessary  to  his  protection  to  pre- 
vent such  use.  there  being  nothing  to  be 
gained  by  him  through  such  injunction ; 
the  company  being  insolvent  and  its  affairs 
in  the  hands  of  a  receiver,  and  the  road 
being  operated  for  tlie  accommodation  of 
the  public,  merely  by  a  trustee  of  holders 
of  bonds  of  the  company,  with  a  view  to  a 
more  advantageous  sale  of  the  property  on 
foreclosure.    In  re  Hewitt,  2$  N. /.  Eq.  2!o. 

3.  Of  surety  or  trustee  in  deed  of 
trust. — ^Trustees  in  a  railroad  deed  of  trust 
paid  off  a  judgment  against  the  company 
that  drew  eight  per  cent,  interest,  and  then 
asked  to  be  subrogated  to  the  rights  of  the 
original  holders.  The  law  of  the  state  pro- 
vided that  where  no  rate  of  interest  was 
agreed  upon  the  legal  rate  should  be  six  per 
cent.  Held,  that  the  subrogated  parties  were 
only  entitled  to  the  amount  paid  on  the 
judgment  with  six  per  cent,  interest,  the 
remedy  being  purely  equitable,  independent 
of  any  contractual  relations.  Memphis  &* 
L.  R.  R.  Co.  V.  Dow,  120  U.  S.  287,  7  Sup. 
a.  Rep.  482. 

A  raiiroad  executed  a  deed  of  trust  to 
secure  a  debt  to  Beal  of  $1000,  in  which  A 
was  surety,  and  to  indemnify  A  and  B  as 
sureties  of  the  company  to  C  and  D  for  the 
sum  of  $2000,  and  A,  as  such  surety,  was 
compelled  to  pay  and  did  pay  such  sums. 
Held,  that  A  was  entitled  to  be  subrogated 
to  the  rights  of  Beal  under  the  deed  of  trust, 
and  to  have  the  deed  of  trust  foreclosed. 
Jacques  v.  Fackney,  64  ///.  87. 

A  railroad  placed  certain  bonds  in  the 
hands  of  its  president,  to  be  held  by  him  in 
trust  to  secure  debts.  These  bonds  were 
subsequently  withdrawn  by  the  company. 
after  the  acceptance  of  the  trust,  and  a  deed 


of  trust  executed  to  secure  the  same  in- 
debtedness. The  president  was  compelled 
to  pay  the  debts.  Held,  that  the  president, 
having  paid  a  debt  secured  by  the  deed  of 
trust,  and  there  being  no  fraud  in  surrender- 
ing the  bonds  and  their  application  in  pay- 
ing other  debts  of  the  company,  the  presi- 
dent was  not  estopped  from  seeking  such 
remedy.    Jacques  v,  Fackney,  64  ///.  87. 

And  when  a  part  of  the  creditors  whose 
debts  were  secured  by  the  deed  of  trust,  and 
which  had  been  paid  by  those  seeking  sub- 
rogation, recovered  judgments  against  the 
company  on  other  indebtedness,  having 
notice  of  the  deed  of  trust,  and  purchased 
part  of  the  lands  included  in  the  trust  deed, 
at  sale  under  executions  issued  on  their  judg- 
ments —  held,  that  the  equities  of  parties 
seeking  such  subrogation  were  superior  to 
their  equity.    Jacques  v.  Fackney,  64  ///,  87. 

4.  Of  insurance  company  after 
payment  of  loss.*  — The  principle  upon 
which  in  any  case  an  insurer  is  permitted 
to  recover  against  a  party,  whose  wrongful 
act  has  caused  the  loss  which  the  insurer 
has  been  compelled  to  pay.  is  not  based 
upon  the  idea  of  a  direct  legal  right  of  the 
insurer  against  the  wrongdoer,  but  upon  the 
equitable  doctrine  of  subrogation,  under 
which  such  insurer  succeeds  to.  and  is  en- 
titled to,  a  cession  of  all  the  means  of  re- 
dress held  by  the  party  indemnified  against 
the  party  whose  act  has  occasioned  the  loss. 
And  the  insurer  can  enforce  this  right  only 
in  the  name  of  the  insured.  Connecticut 
Mut.  L.  Ins.  Co.  V.  New  York  **  N.  H.  R. 
Co.,  25  Conn.  265.  — Approved  in  Palfrey 
V.  Portland,  S.  &  P.  R.  Co.,  4  Allen 
(Mass.)  55. 

Where  a  railroad  company  negligently 
causes  the  death  of  a  passenger  whose  life 
is  insured,  the  life  insift-ance  company,  after 
paying  the  insurance,  cannot  maintain  an 
action  at  law  against  the  railroad  company. 
The  principle  upon  which  in  any  case  the 
insurer  is  permitted  to  recover  against  the 
wrongdoer  is  not  based  upon  the  idea  of  a 
direct  legal  right  of  the  insurer  against  the 
wrongdoer,  but  upon  the  equitable  doctrine 
of  subrogation.  The  insurer  can  enforce 
this  right  only  in  the  name  of  the  insured. 
Connecticut  Mut.  L.  Ins.  Co.  v.  New  York  &• 

*  See  also  Fiais,  138. 

Subrogation  of  carrier  to  rights  of  insured 
in  goods  lost  or  damaged,  see  notes,  3  L.  R,  A, 
436:  16  Am,  tt  Eno.  R,  Cas.  141 ;  ai  /d.  lao; 
42  /d.  340 ;  42  Id.  344,  atttr. 


SUBROGATION,  5, 6.— SUBSCRIPTIONS  TO  STOCK. 


r25 


N.  H.  R.  Co.,  as  Cmm.  265.— Approving 
Rockingham  Mut.  F.  Ins.  Co.  v.  Bosher,  39 
Me.  253. 

Conn.  Gen.  St.,  §  3581,  provides  that  when 
an  injury  is  done  to  the  property  of  any  per- 
son by  fire  from  the  locomotive  engine  of 
any  railroad  company,  without  contributory 
negligence  on  his  part,  the  company  shall 
be  held  responsible  in  damages  to  the  ex- 
tent of  such  injury.  NeM,  that  where  a 
company  was  liable  under  this  statute  for 
the  destruction  of  plaintiflf's  property,  it 
could  not  in  any  form  secure  the  benefit  of 
the  insurance  held  by  him  upon  the  prop- 
erty. Jfi^an  v.  New  York  &*  N.  E.  R.  Co., 
49  Am,  &*  Eng.  K.  Cas.  590,  60  Conn.  124, 
22  Atl.  Rep.  503. 

Where  the  law  subrogates  one  who  has 
discharged  the  obligation  of  a  third  person, 
in  the  place  of  the  person  to  whom  the  ob- 
ligation was  due,  the  obligation  must  have 
rested  primarily  on  such  third  person.  Here 
the  duty  to  pay  for  the  destruction  of  plain- 
tiff's property  rested  primarily  on  the  rail- 
road company.  Regan  v.  New  York  <S-»  N. 
E.  R.  Co.,  49  Am,  &•  Eng.  R,  Cas,  590,  60 
Conn.  124,  22  Atl,  Rep.  503. 

For  the  general  right  of  an  insurer  to  be 
subrogated  to  the  right  of  action  of  the  in- 
sured, which  arises  in  case  of  loss  of  goods 
through  the  negligent  or  wilful  act  of  a  third 
person,  see  Liverpool  6^  G.  W,  Steam  Co. 
V.  Phenix  Ins,  Co.,  37  Am,  &»  Eng,  R,  Cas, 
681,  129  U,  S,  397,  9  Sup.  Ct,  Rep,  469. 
Mobile  &*  M,  R,  Co.  w.Jurey,  16  Am.  &*  Eng. 
R.  Cas.  132,  III  U.  S.  584,  4  Sup.  Ct,  R*p, 
566.  The  Potomac,  105  U,  S,  630.  Mer- 
cantile Marine  Ins,  Co.  v.  Clark,  1 1 8  Mass. 
288.  Connecticut  Fire  Ins.  Co,  v.  Erie 
R.  Co.,  73  A^.  Y.  399.  Kentucky  M.  **  F, 
Ins,  Co.  v.  Western  &*  A,  R,  Co.,  8  Baxt. 
( Temt.)  268. 

'  6.  Of  party  paying  laborers* 
claimN. — A  superintendent  of  the  work  of 
constructing  a  railroad,  without  any  obliga- 
tion on  his  part,  voluntarily,  and  supposing 
that  the  company  was  solvent,  and  merely 
to  belriend  the  workmen  employed,  ad- 
vancer, his  own  money  to  pay  them  for 
their  work.  There  was  no  assignment  of 
their  claims  to  him,  and  no  agreement  that 
he  was  to  have  the  benefit  of  their  lien. 
Afterwards  the  company  became  insolvent. 
Held,  that  he  was  not,  by  subrogation,  enti- 
tled to  the  workmen's  statutory  lien  for 
those  payments.  In  re  l\orlk  River  Conslr. 
Co.,  38  N.  J,  Eq.  433 ;  ajKrmed  in  ^o  N.  /. 


Eg.  340.  —  Applying  Coe  v.  New  Jersey 
Midland  R.  Co..  31  N.  J.  Cq.  105 

O.  Municipal  bonds. —  The  purchase 
of  bonds  issued  to  a  railroad  by  a  town,  by 
a  third  person  from  the  railroad,  is  not  a 
payment  of  the  town's  subscription  to  the 
railroad,  so  that  the  purchasers  have  no 
rights  of  subrogation  therein.  ./Etna  Lift 
Ins,  Co.  V.  MiddUport,  124  U,  S,  534,  8  Sup. 
Ct,  Rep.  625.— Distinguished  in  Illinois 
G.  T.  R.  Co.  V,  Wade,  140  U.  S.  65. 

Where  a  company  receives  of  a  county  its 
subscription  bonds  on  conditions,  to  per- 
form which  the  company  gives  bond,  se- 
cured by  mortgage,  and  the  conditions  are 
broken,  and  the  interest  coupons  held  by  a 
purchaser  for  value  without  notice  remain 
unpaid,  the  company  becomes  principal 
debtor,  the  county  the  surety,  and  the 
coupon  holder  is  entitled  to  be  substituted 
to  the  benefit  of  the  mortgage.  Washing- 
ton, O,  &*  W.  X.  Co.  V.  CaMenove,  83  Va.  744, 
3  S.  E.  Rep.  433. 


SUBSCRIPTIONS  TO  STOCK. 

Actions  for,  wheu  barred  by  lapse  of  time,  see 
Li»iiTATioNs  OF  Actions,  42. 

Assignability  of,  see  Assignment,  8. 

At  lest  than  par  value  as  a  defense  in  cred- 
itor's suit  against  stockholder,  see  Stock- 
holders, 07. 

Before  condemnation  of  land,  see  Eminsnt 
Domain,  1087. 

By  cities,  power  of  legislature  to  compel,  see 
Municipal  and  Local  Aid,  15. 

Cancellation  of  unpaid,  on  reorganization, 
see  Reorganization,  6. 

Compensation  of  directors  for  procuring,  see 
Directors,  etc.,  31. 

Evidence  of  similar  inducements  to  other 
subscribera,  see  Evidence,  25. 

Guaranty  of  payment  of,  see  Guaranty,  O. 

In  aid  of  railways,  see  Municipal  and  Local 
Aid. 

effect  of  ci  Asoliv"  .tion  upon,  see 

Consolidation,  34 ;  Municipal  and  Lo- 
cal Aid,  200-208. 

payable  in  bonds,  see  Municipal 

and  Local  Aid,  Off. 

rescission  of,  see  Municipal  and 

Local  Aid,  202. 

without  election  are  void,  see  Mu- 
nicipal and  Local  Aid,  1S4. 

—  union  depot  companies,  see  Union  Depot 
Companies,  4. 

Mortgages  of,  see  Mortgages,  27. 

New  stock,  right  of  original  holders  to  make, 
SVC  Stock,  24. 


R>'l 


nnlii 


ii 


'  fi 

! 


7S6 


SUBSCRIPTIONS  TO  STOCK,  1. 


-J 

■    J. 

•i     ti 

•i 

r 

1 

\.  1 

! 
! 

! 

-1 

■ 

L. 

i 

New  stock,  TOlidit  J  of,  m«  Stock.  26>. 

Or  bonds,  affect  of  contolidatioa  npoa,  tee 

Consolidation,  33. 
Power  of  dtiei,  otc,  to  main,  tee  MumarAL 

AND  Local  Aid,  72-79. 
wife    to    make,   lee    Husband   and 

WiFB,  7. 

—  to  niake,  does  not  authorize  donation,  see 

Municipal  and  Local  Aid,  250. 
when  implies  power  to  issue  bonds, 

see  Municipal  and  Local  Aid,  272- 

276. 
Prior  to  incorporation,  see  Incorporation, 

ETC.,  8. 

Repeal  of  statute  before  completion  of.  effect 
oi^  see  Municipal  and  Local  Aid,  64. 

Requisites  o(  to  entitle  subscriber  to  vote. 
see  Stockholders,  15. 

Right  of  receirers  to  sue  on,  see  Rbcrivirs, 
120. 

—  to  interest  on,  see  Interest,  8. 
Specific  performance  of,  see  Specific  Pta« 

formance,  11. 
Unpaid,  liability  to  creditors  upon,  see  Stock* 
holders,  24-36. 

—  when  may  be  reached  bj  creditors'  bill, 

see  Creditors'  Bill,  3. 
When  limitation  begins  to  run  in  actions 
for,  see  Limitations  of  Actions.  20. 

—  may  be  reached  in  attachment,  see  At- 

tachment, etc.,  32. 

—  subject  to  mechanic's  lien,  see  Liens,  27. 

L  TBI  COHTBAOT  OF  IVBSOaiPTIOll. .  736 

1.  Forma/  Requisites 726 

2.  Consideration  and  Payment.  733 

3.  Construction  and  Validity,  739 

4.  Obligation  to  Pay 743 

5.  Agreement  by  Company  to 

Pay  Interest 745 

n.  ABWMHntBHTB.    CALLS 746 

I.  In  General,     When  Neces- 
sary or  Proper. 746 

3.  By  Whom  Made  or  Levied.  750 

3.  Form,  Fequisites,  and  Va- 

lidity 751 

4.  Notice. 7$a 

5.  Calls  after  Transfer 755 

m.  Aonon  to  ihfobok  subscbip- 

TIOW 75* 

I.  Election    of    Remedies. 

Forms  of  Action  Allowed.  756 
3.  furisdiction.    Tender,   De- 
mand before  Suit 757 

3.  Parties 758 

4.  Pleading 759 

5.  Evidence 764 

6.  Deftnstt 770 

a.  Abandonment     or 


Delay  of  Enters 

prise. 770 

i.  Change  in  Charter, 
Name,  Route, 

Termini,  etc 771 

e.  Consolidation.  Sale. 
Lease 777 

d.  Failure  to  Make 

Preliminary  Pay- 
ment  778 

e.  Fraudulent    Repre> 

sentations 783 

/.  Various  Other  De- 
fenses    786 

g.  Waiver  of  Defenses.  794 

7.  Instructions,    fudgment...,  796 

Zy.  TOBniTUBEFOBVOV-PATHXXT..  797 

▼.  BuBMHIPTIOHSUTOVOOHSITIOHS..  800 

I.  In  General 800 

3.  Validity  of  Conditions 803 

3.  Certain  Amount  of  Stock  to 

be  Subscribed. 80$ 

4.  Portion  of  Road  to  be  Built 

or  Graded 807 

5.  Stations  and  Depots  to  be 

Constructed 810 

6.  Particular  Route  to  be  Fol- 
lowed or  Place  Reached 813 

YI.  BUBIOBIPTIOMS   BT    OTHEB    OOM- 

PAims 816 

I.  TBI  COHTBAOT  Of  STOBOBIFTIOV. 
I.  Formal  Requisites. 

1.  In  general.* — Where  no  formalities 
are  prescribed,  any  agreement  by  which  a 
person  shows  an  intention  to  become  a 
shareholder  is  sufficient  to  constitute  a  con- 
tract of  subscription.  Wempie  v.  St,  Louis, 
f.  &*  S,  R.  Co,,  30  Am,  &*  Effg.  R,  Cas.  346, 
120  ///.  196,  II  N.  E,  Rep,  906,  9  fVest. 
Rep.  165. 

The  heading  of  a  subscription  was  as  foK 
lows:  "Railroad  stock  taken  at  Catletts. 
burg,  Ky.,  in  L.  &  B.  S.  R.  R.  Company, 
May  I2th.  i8s2."  Underneath  were  written 
the  names  of  the  subscribers,  and  the  num- 
ber of  shares  subscribed  by  each.  One  of 
them  who  acted  as  a  stockholder  in  the 
election  of  directors,  and  made  partial  pay- 
ments on  his  stock  after  the  company  or- 
ganised, was  sued  for  the  unpaid  balance  of 
his  subscription.    Held,  that  he  was  legally 


*  General  form  of  subscriptions  to  stock,  and 
how  made,  see  note,  81  Am.  Dec.  395. 


SUBSCRIPTIONS  TO  STOCK,  2, 3. 


m 


a  stockholder.  Fry  v.  Lexit^tm  &»  B.  S. 
Jt.  Co.,tMetc.(Ky.)ii\. 

A  promise  in  writing  to  take  and  fill  a 
certain  number  of  shares  in  a  chartered 
company  becomes  a  binding  contract  by  a 
subsequent  organization  of  the  company  and 
an  acceptance  of  the  subscription.  Ptnobscot 
R.  Co.  V.  Dummer,  40  Mt.  172. 

Under  Michigan  Railroad  Law  of  i87i,sub- 
scriptions  to  capital  stock  can  only  be  made 
"  in  the  manner  to  be  provided  by  its  [the 
company's]  by-laws,"  therefore  a  subscrip- 
tion made  before  any  by-laws  are  adopted 
gives  no  rights  to  either  party ;  and  when 
there  is  nothing  to  create  an  estoppel,  a  sub- 
scriber is  not  bound  by  a  by-law  adopted 
after  his  subscription.  Carlisle  v.  Saginaw 
Valley  6-  St.  L.  R.  Co.,  rj  Mich.  315,  10 
Am.  Ry.  Rep.  283. 

A  subscription  for  stock  in  a  railroad  cor- 
poration is  a  contract  between  the  sub- 
scriber and  the  corporation.  Melvin  v. 
Hoitt,  liN.  H.6l,2  Am.  Ry.  Rep.  195. 

Defendant  signed  a  paper  which  recited 
that  the  subscribers  associntpd  themselves 
under  a  statute  providing  for  organization 
of  corporations,  and  gave  the  name  of  the 
proposed  company,  the  amount  of  the  capi- 
tal stock,  and  the  number  of  shares.  Held, 
that  this  imported  a  promise  to  take  and 
pay  for  the  number  of  shares  set  opposite 
each  subscriber's  name,  and  an  action  might 
be  maintained  thereon.  Lake  Ontario,  A. 
&•  N.  Y.  R.  Co.  V.  Mason,  i6  A^.  Y.  451. 

Under  the  statute  there  are  but  two  ways 
prescribed  for  becoming  a  stockholder  in  a 
railroad  corporation,  one  by  subscribing  to 
the  articles  of  incorporation  before  they  are 
filed,  and  the  other  by  subscribing  to  stock 
after  books  are  opened.  Troy  &*  B.  R. 
Co.  V.  Titbits,  18  Barb.  {N.  Y.)  297.— DIS- 
TINGUISHED m  Erie  &  N.  Y.  C.  R.  Co. 
V.  Owen.  32  Barb.  616.  Followed  in 
Dutchess  &  C.  County  R.  Co.  v.  Mabbett, 
58  N.  Y.  397. 

A  subscription  made  in  the  name  of  an 
estate  to  which  there  are  several  heirs,  but 
only  signed  by  one  of  them,  is  not  binding 
on  any  of  the  heirs,  not  even  on  the  one 
signing.  Troy  &*  B.  R.  Co.  v.  Warren,  18 
Barb.  (M.  Y.)  310. 

The  provision  of  the  statute  that  a  sub- 
scriber to  the  articles  of  association  of  a 
railroad  company  shall  subscribe  "  his  name, 
place  of  residence,  and  amount  by  him  sub- 
scribed "  does  not  apply  to  the  individuals 
composing  a  partnership.    A  subscription 


in  the  partnership  name  !•  tufficieiit.  Cff- 
densburgh,  R.  &*  C.  R.  Co.  v.  Frost,  21 
Barb.  (N.  Y.)  541.— DISTINGUISHED  IN  Eric 
&  N.  Y.  C.  R.  Co.  V.  Owen.  3a  Barb.  616. 

A  subscription  to  stock  in  the  name  of 
a  third  person,  without  precedent  authority, 
is  an  act  capable  of  ratification.  A  letter 
of  attorney,  executed  by  a  person  in  whose  I 
name  the  subscription  was  made,  constitut- 
ing  the  attorney  his  proxy  to  vote  at  a 
meeting  of  the  company  is  evidence  of  ratifi- 
cation to  go  to  the  jury.  McCully  v.  Pitts- 
burgh &*  C.  R.  Co.,  32  Pa.  St.  25. 

Under  19  &  20  Vict.  c.  47,  one  who  has 
been  allotted  shares  and  whose  name  has 
been  entered  in  the  register,  but  who  hat 
not  signed  the  written  form  of  acceptance 
of  shares  sent  him  by  the  company  for  that 
purpose,  cannot  be  said  to  have  accepted 
the  shares  and  is  not  liable  for  calls.  New 
Brunswick  &>  C.  R.  &*  L.  Co.  v.  Mugge- 
ridge,  \H.&*N.  160,  5  Jur.  N.  S.  1131,  28 
L.  J.  Ex.  365. 

A  party  signed  his  name  in  a  stock  book, 
the  number  of  shares  subscribed  for  being 
filled  in  by  another  person,  who,  beingcalled 
as  a  witness,  swore  that  he  did  it  with  the 
sanction  of  the  subscriber,  and  the  jury  • 
found  the  subscription  sufficient.  Held, 
that  it  was  a  point  for  their  decision,  and 
could  not  be  made  a  ground  of  nonsuit 
afterwards.  Smith  v.  Spencer,  12  U.  C.  C. 
P.  ^77. 

2.  Necessity  of  a  writing.*— A  con- 
tract of  subscription  to  the  stock  of  a  rail- 
road must  be  in  writing  and  cannot  be 
established  by  parol  evidence,  and  in  order 
to  let  in  secondary  evidence  there  must  be 
some  proof  of  an  original  subscription,  and 
of  the  loss  of  the  book  or  paper  containing 
it.  Pittsburgh  <S-  S.  R,  Co.  v.  GasMam,  3a 
Pa.  St.  340.  Pittsburgh  &*  C.  R.  Co.  v. 
Clarke,  29  Pa.  St.  146. 

3.  Subscription  distinguished  flrom 
agreement  to  subscribe.!  —  An  agree- 
ment to  subscribe  a  certain  amount  to  the 
capital  stock  of  a  corporation  when  its  sub- 
scription books  shall  be  opened  does  not 
make  the  subscriber  a  stockholder,  and  as 
such  liable  to  calls.  Thrasher  v.  Pike 
County  R.  Co.,  35  ///.  393.  — Quoted  and 

*  Subscriptions  to  capital  stock  must  be  In 
writing.  Parol  evidence  to  vary,  see  note,  8t 
Am.  Dec.  396. 

f  Distinction  between  subscriptions  and  offers 
or  agreements  to  subscribe,  see  very  full  note, 
81  Am.  Dec.  392. 


728 


SUBSCRIPTIONS  TO  STOCK,  4. 


V. 


!' 


ill! 


roLLOWED  IN  Mt.  Sterling  Coalroad  Co.  v. 
Little.  14  Busli  (Ky.)  429. 

And  for  a  breach  of  such  agreement  the 
obligor  is  only  liable  in  an  action  for  dam- 
ages. A//.  Sterling  Coalroad  Co.  v.  Little, 
14  Bush  (A>.)  429.  —  Quoting  and  fol- 
lowing Thraslier  v.  Pike  County  R.  Co.,  2$ 
111.  393. 

An  individual  does  not  become  a  sub- 
scriber so  as  to  make  him  liable  to  a  com- 
pany by  subscribing  a  preliminary  paper 
before  the  company  is  organized,  by  which 
he  agrees  to  take  a  certain  amount  of  stock, 
unless  he  subsequently  subscribes  the  arti- 
cles of  association,  or  signs  the  stock  books 
after  the  corporation  is  organized.     Troy  &* 

B.  R,  Co.  V.  Warren,  18  Barb.  (N.  V.)  310. 
—Following  Troy  &  B.  R.  Co.  v.  Tibbits, 
18  Barb.  297.  — Followed  in  Dutchess  & 

C.  County  R.  Co.  v.  Mabbett,  58  N.  Y.  397.— 
Trojf  &'  B.  R.  Co  v.  Tibbits,  18  Barb.  {N.  V.) 
297.— DiSTiNGULSHiNO  Lexington  &  W.  C. 
R.  Co.  V.  Chandler,  13  Mete.  (Mass.)  311. — 
Applied  in  Re  Rochester,  H.  &  L.  R.  Co., 
50  Hun  29.  18  N.  Y.  S.  R.  654,  2  N.  Y. 
Supp.  457.  Approved  in  Sedalia,  W.  &  S. 
R.  Cu.  V.  VVilkerson,  25  Am.  &  Eng.  R.  Cas. 
78,  83  Mo.  235.  Followed  in  Troy  &  B. 
R.  Co.  V.  Warren,  18  Barb.  310. 

Defendant  and  others  signed  the  follow- 
ing instrument:  "We, the  undersigned, citi- 
zens of  Unionville  and  vicinity,  pledge  our- 
selves to  subscribe  for  and  take  stock  in 
and  for  the  construction  of  the  Lake  Ontario 
Shore  railroad  to  the  amount  set  opposite 
our  names,  respectively,  on  condition  said 
road  be  located  and  built  tlirou};h  or  north 
of  the  village  of  Unionville,  in  Parma." 
JMtl,  that  it  was  not  a  subscription  to 
plaintiiT's  capital  stock ;  that  plaintiff  was 
in  no  sense  a  party  to  the  agreement,  and 
could  nut  maintain  an  action  thereon. 
LaJte  Ontario  Shore  R.  Co,  v.  Curtiss,  i  Am, 
&*  Eng.  R.  Cas.  362,  80  N.  K.  219. 

It  seems  that  an  action  by  a  party  to  the 
instrument  could  not  be  maintained,  in  the 
absence  of  evidence  that  the  contract  was 
entered  into  for  his  benefit,  and  not  until 
after  the  condition  stated  therein  had  been 
performed  ;  also,  that  any  recovery  would 
be,  not  for  the  amount  of  the  promised  sub- 
scription, but  only  for  the  damages  which 
such  party  had  sustained.  Lake  Ontario 
Shore  R.  Co.  v.  Curtiss,  1  Am.  &*  Eng.  R. 
Cas.  362,  80  A'^.  K.  219. 

It  appeared  that  plainttfl's  road  and  prop- 
erty of  every  kind,  with  its  rights  and  fran- 


chises, were  sold  under  a  mortgage,  that  a 
new  company  was  organized,  which  became 
the  owner  thereof,  and  that  the  road  was 
thereafter  built  by  the  new  company;  plain- 
tiff did  not  offer  to  furnish  defendant  with 
stock  in  the  new  road.  HeM,  that  these 
facts  did  not  aid  plaintiff;  that  plaintiff,  al- 
though  not  formally  dissolved,  had  in  fact 
ceased  to  exist  for  any  practical  purpose; 
that  its  certificate  of  stock,  if  now  issued, 
would  not  represent  the  road,  or  anything 
else  of  value,  and  so  that  defendant  would 
receive  no  consideration  for  his  subscrip- 
tion, if  made,  or  for  his  money,  if  paid.  Laht 
Ontario  Shore  R.  Co.  v.  Curtiss,  1  Am.  &* 
Eng.  R.  Cas.  362,  80  A'.  K  219.  — DISTIN- 
GUISHED IN  BufTalo  &  J.  R.  Co.  v.  Giflord. 
4  Am.  &  Eng.  R.  Cas.  387.  87  N.  Y.  294; 
Paducah  &  M.  R.  Co.  v.  Parks,  86  Tenn. 
554,  8  S.  W.  Rep.  842. 

It  is  not  competent  for  the  legislature  to 
provide  that  a  promise  to  subscribe  a  cer- 
tain amount  for  a  specified  object  shall  be 
deemed  a  subscription  to  the  capital  stock 
of  a  particular  company.  Pittsburgh  6-  S. 
R.  Co.  V.  Gazzam,  32  Pa.  St.  340. 

Defendants  signed  a  subscription  paper 
by  which  they  agreed  to  take  stock  to  the 
amounts  attached  to  their  names,  provided 
the  road  should  be  built  to  a  certain  place. 
They  did  not  sign  their  names  in  the  sub- 
scription book,  afterwards  opened,  nor  com- 
ply with  any  other  requisition  of  the  char- 
ter, but  refused  to  pay  their  subscription. 
The  corporation  brought  action  against 
each  defendant  for  the  first  two  instal- 
ments, which  were  demanded  of  each,  in 
the  first  count,  as  a  subscriber  to  the  stock 
of  the  company,  and  in  the  second,  on  an 
agreement  to  subscribe  to  the  capital  stock. 
Jfelii,  that  the  action  could  not  be  main- 
tained on  either  count.  Charlotte  &*  S.  C. 
R.  Co.  V.  Blakely,  3  Strobh.  (So.  Car.)  245.— 
Distinguished  in  Minneapolis  &  St.  L.  R. 
Co.  V.  Bassett,  20  Minn.  535  (Gil.  478). 
Quoted  in  Spartanberg  &  A.  R.  Co.  v. 
Ezell,  14  So.  Car.  281.  Reconciled  in 
Greenville  &  C.  R.  Co.  v.  Smith,  6  Rich. 
(So.  Car.)  91. 

4.  Oifer  to  subscribe  la  not  enousrh. 
— An  offer  to  subscribe  and  pay  an  instal- 
ment of  five  dollars  on  a  large  number  of 
shares  gives  to  the  one  making  it  no  right 
which  equity  will  enforce.  Brower  v.  Second 
6*  T.  St.  Pass.  R.  Co.,  3  Phila.  {Pa.)  161. 

Whether  subscriptions  to  stock  were 
properly  taken  cannot  be  inquired  into  in 


SUBSCRIPTIONS  TO  STOCK,  5,  6. 


729 


a  proceeding  by  a  subscriber.  Brawer  v. 
Stcond  &»  T.  St.  Pass.  R.  Co.,  3  Phila. 
{Pa.)  161. 

5.  Subacription  dlstinKiiialied  ft-om 
sale  of  atock.*— By  an  obligation  payable 
to  a  certain  person  or  bearer,  the  maker,  in 
consideration  of  one  dollar,  the  receipt  of 
which  was  therein  confessed,  and  of  tiie 
delivery  to  be  made  to  him  by  a  certain 
company  of  a  specified  number  of  shares  of 
its  c.->nital  stock,  acknowledged  himself  to 
be  indebted  in  a  certain  sum  which  he 
promised  to  pay  in  instalments  as  the  con- 
struction of  the  roadbed  progressed,  in 
proportion  to  monthly  estimates  thereof, 
and  that  the  whole  should  be  paid  on  the 
completion  of  such  roadbed.  Held,  that 
such  obligation  was  not  a  subscription  to 
the  capital  stock  of  such  company.  Clark 
V.  Continental  Imp.  Co.,  $7  Ind.  135,  18  Am. 
Ry.  Rep.  505. 

O.  SiibMcriptions  prior  to  organl- 
eatloii.t  —  There  can  be  no  recovery  upon 
a  subscription  to  the  capital  stock  of  a 
street-railroad  company,  made  before  its 
organization,  where  it  is  not  shown  that 
the  defendant,  after  the  subscription  of  the 
requisite  amount  of  stock,  subscribed  arti- 
cles of  association  in  which  were  set  forth, 
besides  other  requisites,  the  number  of 
directors  to  manage  the  company  and  their 
names,  as  required  by  3  Ind.  St.  422,  §  i, 
and  it  does  not  appear  that  he  ever  assented 
to  the  number  or  names  of  the  directors. 
Reed  V.  Richmond  St.  R.  Co.,  $0 /nd.  342.— 
Distinguishing  Eakright  v.  Logansport  & 
N.  I.  R.  Co.,  13  Ind.  404. 

The  distinction  between  subscriptions 
prior  and  subsequent  to  organization  is 
clearly  recognized  in  Maryland.  Taggart 
V.  Western  Md.  R.  Co.,  24  Md.  563. 

A  preliminary  subscription  to  the  capital 
stock  of  a  proposed  railroad  company,  by 
one  who  died  befoie  the  incorporation  of 
the  compani',  and  without  having  signed 
the  articles  of  association,  does  not  bind 
his  estate.  Sedalia,  W.  &-  S.  R.  Co.  v. 
Wilkerson,  25  Am.  &*  Eng.  R.  Cas.  78.  83 
Mo.  235.— Distinguishing  Peninsular  R. 
Co.  V.  Duncan,  28  Mich.  130. 

Preliminary  negotiations  for  subscription 
to  the  capital  stock  of  a  railroad  corporation, 
before  its  organization,  are  not  binding  upon 

*  Difference  between  sale^  of  shares  and  sub- 
scriptions, see  note,  30  Am.  &  Eng.  R.  Cas,  254. 

t  Subscription  to  stock  of  corporations  not  in 
existence,  see  note,  9  Am.  &  Enc.  R.  Cas.  701. 


a  subscriber  nor  upon  the  company  after 
such  organization.  In  r*  Rochester  H.  &* 
L.  R.  Co.,  50  Huh  29,   18  A^.  Y.  S.  R.  654, 

2  N.  Y.  Supp.  457.— Applying  Buffalo  A 
J.  R.  Co.  V.  Giflord,  87  N.  Y.  294:  Buffalo 
&  J.  R.  Co.  V.  Clark,  22  Hun  359;  Troy  & 
B.  R.  Co.  V.  Tibbits,  18  Barb.  297. 

A  corporation  may  receive  subscriptions 
to  stock,  and  may  sue  thereon,  before  being 
fully  organized.  Oregon  C.  R.  Co.  v.  Scoggin, 

3  Or^.  161,  7  Am.  Ry.  Rep.  413. 

A  corporation  cannot  sustain  an  action 
against  one  who,  before  it  was  chartered, 
signed,  with  others,  a  paper  agreeing  to  take 
a  certain  quantity  of  its  stock  and  after- 
wards refused  to  do  so.  Such  a  paper 
signed  by  a  party  is  not  a  contract,  but  a 
mere  expression  of  the  subscriber's  inten- 
tion. But,  supposing  it  be  a  contract,  it  is 
not  to  be  enforced  by  a  bill  in  equity,  but  at 
law.  Strasburg  R.  Co.  v.  Echternacht,  21 
Pa.  St.  220. 

An  act  of  assembly  appointed  commis- 
sioners and  authorized  them  to  receive 
subscriptions  for  the  purpose  of  construct- 
ing a  railroad,  and  provided  that  no  sub- 
scription should  be  valid  unless  five  dollars 
was  paid  on  every  share  at  the  time  of 
subset  ibing,  and  that  when  a  certain  num- 
ber of  sliares  should  have  been  subscribed, 
and  five  dollars  paid  upon  each  share,  and 
the  same  should  be  certified  to  the  gov- 
ernor, he  should  thereupon  issue  letters 
incorporating  the  subscribers  and  subse- 
quent subscribers,  all  of  which  was  done, 
and  the  company  duly  organized.  Held:  (1) 
that  the  act  of  the  assembly  imposed  no 
restriction  upon  the  corporation  after  it 
was  organized  in  regard  to  the  payment  of 
the  sum  of  five  dollars  on  each  share  of 
stock  at  the  time  of  subscribing ;  (2)  that  the 
commissioners  were  only  invested  with  a 
special  authority,  but  the  president  and 
managers,  after  the  organization  of  the 
company,  acted  under  the  general  corporate 
powers  granted,  which  must  be  so  construed 
as  to  carry  out  the  objects  of  the  charter; 
(3)  that  a  condition  annexed  to  a  subscrip- 
tion, that  it  should  be  binding  only  in  the 
event  of  a  certain  amount  of  stock  being 
subscribed,  was  a  valid  one,  and  one  for 
which  the  parties  to  the  contract  had  a  right 
to  stipulate.  Philadelphia  Sh  W.  C.  R.  Co. 
v.  Hickman,  28  Pa.  St.  318. 

Defendant  was  one  of  the  commissioners 
for  receiving  subscriptions  to  the  capital 
stock  of  plaintiff  company.     On  Jan.   19^ 


no 


SUBSCRIPTIONS  TO  STOCK,  7.8. 


1869,  he  tubscribed  for  loo  tharea.  On 
Dec.  to,  1869,  with  the  conaent  of  the 
other  commiaaionera,  he  attached  a  certain 
condition  to  hia  aubacripiion.  to  be  com- 
phed  with  within  one  year.    On   Jan.  4. 

1870.  plaintiff  organized  under  ita  act  of 
incorporation,  at  which  time  the  boole  con- 
taining defendant'a  subacrlptioii  waa  in  hia 
handa  aa  commiasioner,  and  waa  retained 
by  him  till  Jan.  18,  1870,  when  the  condition 
waa  complied  with,  and  he  delivered  his 
book  to  the  directors  of  the  company. 
From  Jan.  4  to  18  the  company  had  been 
acting  under  its  charter  as  an  organized 
company.  HtM,  that  these  facts  consti- 
tuted defendant's  subscription  a  subscript 
tion  made  to  plaintiff  directly,  while  acting 
aa  a  corporation  dt  facto.  Montptlitr  6* 
IV.  R.  R.  Co.  V.  iMMgdoH,  46  Vt.  284. 

A  company  was  about  organizing,  and 
defendant  waa  asked  to  take  atock  in  it.  and 
subscribed  hia  name  to  a  paper  prepared  for 
that  purpose,  agreeing  to  take  ten  shares. 
Iftld:  (i)  that  this  waa  an  offer  made  by  the 
company  on  the  one  side,  and  accepted  by 
defendant  on  the  other,  and  that  a  complete 
contract  was  formed,  which  made  him 
liable  as  a  stockholder  to  assessments ;  (2) 
that  it  was  not  necessary  that  certain  shares 
designated  by  numbers  should  be  assigned 
to  defendant,  to  make  him  liable.  Europtam 
&*  N.  A.  R.  Co.  V.  McLiott,  16  New  Brun.  3. 
—Distinguishing  Newry  &  E.  R.  Co.  v. 
Edmunds,  2  Ex.  118;  Wolverhampton  New 
Waterworks  Co.  v.  Hawksford.  7  C.  B. 
N.  S.  795;  Irish  Peat  Co.  v.  Phillips,  i  B. 
&  S.  629. 

7.  Powers  and  diitieg  of  the  com- 
mlHSionen.  —  The  commissioners  pro- 
vided by  statute  for  opening  books  of  a 
corporation  to  receive  subscriptions  to  cap* 
ital  stock  act  as  a  statutory  board,  and 
derive  their  powers  from  the  law  and  not 
from  the  corporation.  They  are  required 
to  give  notice  of  the  times  and  places  fixed 
for  receiving  subscriptions,  and  to  keep  the 
subscription  books  open.  The  design  of 
the  law  is  to  enable  all  persons  to  subscribe 
on  equal  terms.  Shurtn  v.  Schoolcraft  &• 
T.  R.  R.  Co.,  9  Mich.  269. 

Where  such  commissioners  never  open 
subscription  books,  but  an  agent  of  the 
directors  is  employed  to  circulate  a  paper 
which  divers  persons  subscribe  to,  such  sub- 
scriptions are  not  binding;  and  they  will 
not  prevent  other  parties  from  taking  the 
entire  amount  of  stock  whenever  the  com- 


missioners open  books  and  proceed  regu- 
larly. ShurtM  V.  Schoolcraft  &*  T.  R.  R. 
Co.,  9  Mich.  269. 

One  of  the  commissioners,  appointed 
with  five  others,  at  a  given  place,  to  take 
subscriptions,  under  the  charter  of  a  com- 
pany, has  no  right,  in  doing  so,  to  give  any 
assurances  as  to  the  line  of  location  that 
would  be  adopted  for  the  road.  North  Car- 
olina R.  Co.  V.  Ltach,  \  fonts  {N.  Car.)  340. 

When  the  organization  of  a  company 
takes  place,  which  organization  is  usually 
formed  by  the  instrumentality  of  commis- 
sioners appointed  for  that  purpose,  the  au- 
thority of  the  commissioners  ceases;  and  in 
the  absence  of  any  special  provisions  to  the 
contrary,  all  power  as  to  any  further  sub- 
scriptions to  the  capital  stock  vests  in  the 
corporate  body.  Its  dealing  with  third  per- 
sons, as  to  its  stock,  must  stand  upon  the 
footing  of  ordinary  contracts,  fames  v. 
Cincinnati,  H,  &»  D.  R.  Co.,  2  Disney 
{Ohio)  261. 

Commissioners  named  in  an  act  of  incor- 
poration have  discretionary  power,  and  a 
resolution  to  restrict  subscriptions  to  stnrk 
to  a  certain  number  of  shares  is  lawful. 
Brower  v.  S  cond  &*  T.  St.  Pass.  R.  Co.,  3 
Phila.  (Pa.)  161. 

The  act  of  assembly  gives  to  the  commi>:- 
sioners  no  priority  of  right  over  others,  and 
no  subscriptions  can  lawfully  be  taken  with 
closed  doors;  the  law  requires  the  books 
to  be  opened  and  the  public  to  have  an 
opportun  ity  to  subscribe.  Brower  v.  Second 
6-  T.  St.  Pass.  R.  Co..  3  Phila.  (Pa.)  161. 

Commissioners  appointed  under  Pa.  Gen- 
eral Railroad  Law  of  February  19,  1849,  to 
receive  subscriptions  to  the  capital  stock  of  a 
projected  company,  are  thus  far  the  agents 
of  the  commonwealth  and  have  no  right  to 
receive  any  subscriptions  to  which  condi- 
tions are  appended.  Pittsburgh  &*  S,  R.  Co. 
V.  Woodrow,  I  Pittsb.  (Pa.)  450,  3  Phila.  271. 

Defendant,  intending  to  take  stock  in  a 
company,  authorized  one  of  the  commis- 
sioners, appointed  to  receive  subscriptions, 
to  subscribe  for  him,  and  his  name  was 
entered  by  another  commissioner,  who  acted 
as  clerk.  The  entries  were  certified  by  all 
the  commissioners,  and  defendant  after- 
wards voted  by  proxy  as  a  stockholder. 
Held,  that  he  was  liable  as  a  stockholder. 
Greenville  &*  C.  R.  Co.  v.  Coleman,  5  Rich. 
(So.  Car.)  118. 

8.  Subscription  books.  —  Subscrip- 
tions to  the  capital  stock  of  a  corporation 


SUBSCRIPTIONS  TO  STOCK,  9. 


731 


regu- 


were  nuule  on  a  Inoie  sheet  of  paper  which 
wai  put  in  a  bound  book  used  as  a  record 
of  the  company,  and  the  contents  of  the 
paper  with  the  names  of  the  subscribers  and 
the  amounts  subscribed  were  entered  in  the 
book  by  the  commissioners  appointed  to 
open  books  of  subscription.  Htid,  that 
this  was  a  sufficient  subscription  to  the 
stock  of  the  company.  Woodruff  v,  MC' 
Donald,  33  Ark.  97. 

Where  a  subscription  is  made  in  a  small 
blank  book  and  is  afterward  accepted  by 
the  corporation,  it  is  not  necessary  that 
the  same  should  be  transferred  to  the  stock 
books  of  the  company ;  and  its  acceptance 
would  seem  to  make  the  book  a  stock 
book  of  the  company  to  that  extent,  and 
make  the  contract  of  subscription  complete, 
without  notice  of  acceptance  before  suit. 
Brownitt  v.  Ohio,  I.  &-  /.  ii.  Co.,  18  Ind.  68. 

It  is  not  absolutely  necessary  to  its  va- 
lidity that  the  subscription  be  made  in  a 
book  provided  by  the  directors  for  that 
purpose.  If  the  directors  adopt  a  book  pro- 
vided by  some  one  else,  every  purpose  of  the 
statute  is  satisfied.  Buffalo  &•}.  K.  Co,  v. 
afford,  4  Am.  &*  Eng.  R.  Cas.  387,  87  A^  Y. 
294 ;  affirming  22  Hun  359. 

Where  the  charter  of  a  corporation,  after 
providing  for  a  subscription  to  the  capital 
stock  on  public  notice,  authorizes  the  di> 
rectors,  if  the  whole  were  not  then  taken, 
from  time  to  time  to  cause  the  books  for 
the  subscriptions  of  stock  to  be  opened 
until  a  sufficient  sum  was  subscribed,  the 
further  subscriptions  so  authorized  may  be 
made  without  any  public  notice  of  opening 
the  books,  and  the  power  to  receive  the 
same  may  be  delegated  to  officers  or  agents 
of  the  corporation.  Lokman  v.  New  York 
&•  E.  R.  Co.,  2  Sand/.  (N.  Y.)  39. 

A  subscription,  unexceptionable  in  other 
reapectt,  is  not  invalid  by  reason  of  not 
being  made  in  a  book  opened  by  the  com- 
pany  for  the  purpose.  Ashtabula  6*  N.  L. 
R.  Co.  v.  Smith,  15  Ohio  St.  338. 

Defendant  was  active  in  soliciting  sub- 
scriptions for  the  building  of  a  railroad.  He 
took  a  book  from  the  agent  of  the  company, 
subscribed  therein  himself  and  persuaded 
others  to  subscribe,  and  kept  the  book  about 
six  months.  Because  of  some  diRerence 
with  the  agent  of  company  about  the 
payment  for  his  services  he  cut  his  name 
out  of  the  book  and  returned  it  to  the 
company.  Htld,  that  he  had  perfected  a 
contract  with  the  company,  and  was  as 


much  bound  as  if  he  had  left  his  name  in 
the  book.  Grter  v.  Charfitrs  R.  Co.,  96  Pa. 
St.  391,  43  Am.  Rtp.  548. 

To  make  a  subscription  to  the  stock  of  a 
contemplated  company,  it  is  not  necessary 
that  the  subscription  shall  be  made  upon 
the  books  of  subscription  opened  by  the 
commissioners  named  in  the  charter; 
and  a  subscription  paper  by  which  the 
signers  bind  themselves  to  pay  for  the 
shares  of  stock  in  the  company  opposite 
to  their  names  is  competent  evidence 
against  a  subscriber  of  the  paper,  plaintiff 
company  stating  that  it  intended  to  show 
that  the  amount  so  subscribed  was  duly 
entered  on  the  stock  lists  and  stock  ledger 
of  the  company.  Stuart  v.  Vallty  R.  Co., 
33  Gratt.  ( Va.)  146. 

A  stockholder  who  pays  in  full  for  his 
stock  when  he  gets  it  is  not  bound  to  sign 
a  stock  subscription  book,  merely  because 
the  company's  charter  provides  for  such 
book.     Clark  v.  Farrington,  1 1  Wit.  306. 

The  naming  of  a  railway  "  railroad,"  at 
the  heading  of  the  page  of  a  stock  book, 
does  not  vitiate  the  subscription.  Smith  v. 
spencer.  13  U.  C.  C.  P.  277. 

After  a  stock  book  had  been  opened  and 
signed,  a  new  one  was  substituted  therefor, 
with  a  provision  that  any  subscriber  to  the 
old  one  might  withdraw  by  giving  notice 
to  the  president  of  the  company.  Held, 
that  a  subscriber  who  omitted  to  give  such 
notice  was  not  relieved  of  responsibility 
upon  his  original  subscription.  Smith  v. 
spencer,  13  U.  C.  C.  P.  377. 

O.  Acceptance  by  company.  — Suit 
was  brought  upon  a  subscription  to  stock 
payable  by  the  conveyance  of  a  specific 
tract  of  land,  and  conditioned  that,  in  case 
the  company  should  decline  to  take  the 
land  at  the  price  named,  the  subscription 
should,  be  void.  Held:  (1)  that  the  subscrip- 
tion was  a  simple  proposition  to  put  in  the 
land  at  the  price  named,  and  until  accepted 
by  the  company  there  was  no  binding  ob- 
ligation upon  the  subscriber;  (a)  that  the 
acceptance  of  the  proposition  could  only  be 
made  through  the  board  of  directors,  or, 
perhaps,  through  an  authorized  agent; 
(3)  that  the  consent  of  several  members  of 
the  board,  acting  separately  and  not  shown 
to  constitute  a  quorum,  did  not  constitute 
a  valid  acceptance  of  the  proposition.  Junc- 
tion R.  Co.  V.  Reeve,  15  Ind.  336.— FOLLOW- 
ING Boston  &  M.  R.  Co.  V.  Bartlett,  3  Cusb. 
(Mass.)  224. 


i 


It 


m 


SUBSCRIPTIONS  TO  STOCK,  10,11. 


A  company  cannot  recover  on  a  subicrip* 
tion  to  itoclc  without  proof  that  the  lame 
has  been  accepted  and  acted  upon.  De- 
mand of  payment  and  suit  for  its  recov- 
ery are  not  evidence  of  acceptance  where 
a  subscription  is  otherwise  invalid.  North- 
trn  C.  M.  R,  Co.  v.  Eslow,  ^oAfich.  32a.— Dis- 
tinguishing Richmondville  U.  S.  &  F.  C. 
Inst.  V.  McDonald,  34  N.  Y.  379.  Follow- 
ing Parker  v.  Northern  C.  M.  R.  Co.,  33 
Mich.  33. 

If  one  soliciting  subscriptions  to  stock, 
and  in  whose  hands  a  subscription  is  placed, 
is  not  an  authorized  agent  of  the  company, 
he  must  be  regarded  as  the  agent  of  the 
subscriber  for  the  purpose  of  delivering  it 
to  the  company,  and  upon  such  delivery 
and  acceptance  by  the  company  a  binding 
contract  results.  Mansfitld,  C.  &*  L.  At, 
R.  Co,  v.  Brown,  26  Ohio  St,  223,  13  Am, 
Ry,  Rtp,  341. 

A  subscription  for  stock  in  a  chartered 
railroad  enterprise,  which  by  its  charter 
states  the  amount  and  price  of  its  shares, 
by  signing  a  written  instrument  in  these 
words :  "  We,  the  undersigned,  agree  to 
take  the  following  number  of  shares  in 
the  Mobile  &  Ohio  railroad,"  and  desig- 
nating the  number  thereof  opposite  the 
subscriber's  name,  though  taken  in  a  public 
meeting  by  persons  unauthorized  by  the 
company,  becomes  a  valid  contract  to  pay 
the  amount  subscribed,  by  being  transferred 
to  the  books  of  the  company,  and  thus  ac- 
cepted by  it.  Mobile  &*  O.  R.  Co.  v.  Van- 
dal. 5  Sne/d  ( Tenn.)  294. 

10.  Filinir  articles  and  Rubscrip- 
tion  papers  with  necretary  of  state. 
—  Under  New  York  General  Railroad  Act 
a  certain  number  of  subscribers  and  a  cer- 
tain amount  of  stock  must  be  secured  before 
the  articles  of  association  can  be  filed  with 
the  secretary  of  state  and  the  company  or- 
ganized. Where  duplicate  sets  of  articles 
are  used,  but  only  one  is  filed,  persons  sub- 
scribing the  other  one  do  not  become  stock- 
holders. Erit  *•  N.  Y.  C.  R,  Co.  v.  Owen. 
32  Bart,  (JV,  V,)  616.  —  Distinguishing 
Lake  Ontario,  A.  &  N.  Y.  R.  Co.  v.  Mason. 
16  N.  Y.  451 ;  Troy  &  B.  R.  Co.  v,  Tibbits, 
18  Barb.  298;  Schenectady  &  S.  Plank- 
road  Co.  V.  Thatcher,  1 1  N.  Y.  102 ;  Ogdens- 
burgh,  R.  A  C.  R.  Co.  v.  Frost,  21  Barb. 
S4>.— Distinguished  in  Soduo  Bay  &  C. 
R.  Co.  V.  Hamlin.  34  Hun  (N.  Y.)  390. 

Various  parties,  including  defendant,  sub- 
scribed to  stock  in  a  proposed  corporation 


on  separate  printed  blanks,  and  afterwards 
the  signatures  were  cut  ofl  and  pasted  on 
one  of  the  papers,  and  the  proper  affidavit 
was  affixed  and  the  articles  filed  in  the  office 
of  the  secretary  of  state,  and  the  company 
organized,  //eld,  that  the  transfer  of  de- 
fendant's signature  constituted  no  defense 
to  an  action  on  the  subscription,  and  he  was 
estopped  from  claiming  that  the  corpora- 
tion was  not  duly  organized.  Sodus  Bay  &» 
C,  R,  Co,  v.  Hamlin,  24  Hun  (N,  Y.)  390.— 
Distinguishing  Erie  &  N.  Y.  C.  R.  Co.  v. 
Owen,  32  Barb.  (N.  Y.)  616.— Followed  in 
Sodus  Bay  &  C.  R.  Co.  v.  Lapham,  6  N.  Y. 
S.  R.  159. 

11.  Necessityof  allotment  and  no- 
tice thereof.— Where  the  whole  amount 
of  stock  subscribed  for  does  not  exceed  the 
capital  to  be  raised,  and  the  commissioners 
receive  a  subscription  to  the  stock  from  de- 
fendant, and  assent  to  his  acting  as  a  stock- 
holder in  the  meetings  of  the  corporation, 
a  formal  assignment  by  the  commissioners 
of  shares  subscribed  for  by  defendant  is  not 
necessary.  Danbury  &*  N.  R.  Co.  v.  Wilson, 
22  Conn.  435. 

One  who,  prior  to  the  passing  of  an  act 
incorporating  a  company,  signs  a  document 
agreeing  on  the  formation  of  the  company 
to  subscribe  for  a  certain  number  of  shares, 
which  are  ultimately  allotted  to  him,  and 
whose  name  is  placed  on  the  register,  al- 
though no  notice  of  such  allotment  and 
registration  was  given  to  him,  is  a  share- 
holder within  the  meaning  of  the  Com- 
panies Clauses  Consolidation  Act,  §  8,  and 
liable  to  pay  calls.  Burke  v.  /.echmere,  L,  R. 
6  Q,  n.  297.  40  L.J.  Q.  B.  98.  iqW.R,  565. 

Respondent  signed  the  stock  book  of  a 
company,  which  was  headed  by  an  agree- 
ment by  the  subscribers  to  become  share- 
holders of  the  stock  for  the  amounts  set 
opposite  their  respective  names,  and  upon 
allotment  by  the  company  "  of  my  or  our 
said  respective  shares  "  they  covenanted  to 
pay  ten  per  cent,  of  the  amoimt  of  the 
shares  and  all  future  calls.  Allotment  cer- 
tificates were  issued  and  handed  to  the 
company's  broker  to  deliver  to  the  share- 
holders, who  published  a  notice,  signed  by 
the  secretary,  in  a  daily  paper,  notifying 
subscribers  that  the  first  call  of  ten  per 
cent,  on  the  stock  was  required  to  be  paid 
immediately  to  them.  Respondent  never 
called  for  or  received  his  certificate  of  allot- 
ment, and  never  paid  the  ten  per  cent.,  and 
swore  that  he  had  never  bad  any  notice  of 


SUBSCRIPTIONS  TO   STOCK,  12-15. 


733 


the  allotment  having  been  made  to  him. 
Htlti,  that  the  document  signed  by  respond- 
ent was  only  an  application  (or  shares,  and 
that  it  was  necessary  for  appellant  to  have 
shown  notice  within  a  reasonable  lime  of 
the  allotment  of  shares  to  respondent,  and 
that  no  notice  whatever  of  such  allotment 
had  been  proved.  Nasmith  v.  Mannitig,  5 
Can,  Sup,  Ct.  417;  affirming  5  Ont.  App, 
126;  rtvtrsing  29  U.  C.  C.  P,  34. 

12.  Stttiiip  duty.  —  Several  subscript 
tiont  to  the  stock  of  a  company  were  en- 
tered upon  the  same  page  of  a  subscription 
book,  upon  which  was  placed,  by  the  agents 
of  the  company  (under  the  authority  to 
stamp  conferred  by  the  contract  of  sub- 
scription), a  revenue  stamp  sufficient  in 
amount  to  cover  the  aggregate  of  the  stamp 
duties  on  all  of  the  subscriptions  entered 
upon  that  page,  and  the  stamp  thus  affixed 
was  marked  "canceled."  Htlti,  that  the 
manner  of  the  cancellation  did  not  affect  the 
validity  of  the  contract,  and  tiiat  no  valid 
objection  could  be  urged  to  the  aggregation 
of  the  several  stamp  duties  into  one  stamp. 
St.  Louis  &*  C,  a.  R,  Co.  V.  Eakint,  30 
Iowa  279. 

13.  Revocation  of  subscription.— 
In  an  action  to  recover  the  sum  subscribed 
by  defendant  to  the  capital  stock  of  a  cor- 
poration, testimony  that  a  certain  person 
was  appointed  to  receive  subscriptions  to 
the  stock  at  a  meeting  of  the  corporators, 
that  lie  had  assumed  to  act  under  such 
authority,  and  had  taken  his  own  and  others' 
subscriptions,  is  competent  to  go  to  the 
jury,  tending  to  show  that  he  was  bound 
by  his  subscription,  he  having  afterwards 
erased  his  name  from  the  paper  before  de- 
livering it  to  the  company.  Cfuraw  &*  C, 
R.  Co.  V.  Wkitt,  10  So.  Car,  155. 

The  power  and  authority  of  the  agent  of 
acompany  to  receive  subscriptions  for  stock 
cease  when  the  subscription  is  complete. 
When  made,  the  subscription  instantly  in- 
ures to  the  benefit  of  Xb."  company,  and 
creates,  in  law,  a  contract  directly  between 
the  subscriber  and  the  company.  The  agent 
has  no  power  to  abrogate  or  annul  the  sub- 
scription ;  and,  consequently,  notice  of  an 
intention  to  revoke  it  must  be  given  to  the 
company,  and  not  to  the  agent.  Low*  v. 
Edgefield  &*  K.  R.  Co.,  i  Head  ( Tenn,)  659. 

A  party  who  makes  a  conditional  sub- 
scription to  stock,  by  agreement  with  a 
person  who  is  not  the  authorized  agent  of 
the  company,  may  withdraw  or  revoke  his 


subscription  at  pleasure,  without  notice  to 
the  company,  at  any  time  while  the  sub- 
scription book  remains  in  the  hands  of  such 
person,  and  before  the  company  has  ac- 
quired any  right  to  or  interest  in  it.  luni/e 
v.  Edgefield^*  K.  R.  Co.,  I  Head  ( Tenn.)  659. 
If  a  party  who  hus  subscribed  to  stock 
can  abandon  his  subscription,  it  can  be  done 
only  by  notice  to  the  agent  or  to  the  coinpuny 
in  proper  time.  Cunningham  v.  LdgcjUUi 
&»K,  R.  Co,,  a  Head  {Tenn.)  23. 

3.  Consideration  and  Payment, 

14.  Necessity  of  a  consideration.— 

The  consideration  of  a  subscription  to  cor- 
porate stock  is  the  shares  of  stock  to  which 
the  subscriber  becomes  entitled,  and  not 
those  incidental  advantages  which  he  may 
have  anticipated  from  the  completion  of  the 
railroad.  So  a  failure  to  complete  the  road 
will  not  enable  him  to  set  up  a  failure  of 
consideration.  Bish  v.  Bradford,  17  Ind.  490. 
Subscriptions  to  stock  are  only  binding 
upon  the  subscribers  when  they  are  so  made 
as  to  bind  the  company  ;  and  as  the  statute 
creates  no  obligation  on  the  corporation, 
except  upon  subscriptions  regularly  made, 
no  others  can  be  enforced  unless  they  were 
made  upon  some  actual  consideration  or 
agreement  binding  the  company.  Parker 
v.  Northern  C.  At.  R.  Co.,  33  Afich.  23.— 
Followed  in  Northern  C.  M.  R.  Co.  v, 
Eslow,  40  Mich.  222. 

15.  Sufficiency  of  the  considera- 
tion.— (1)  In  general. — A  regular  subscrip- 
tion for  shares  in  the  stock  of  a  company, 
whether  made  previous  to  its  organization 
or  not,  if  it  organizes  as  provided  by  the 
charter,  imports  in  itself  a  sufficient  consid- 
eration and  may  be  declared  on  as  the  foun- 
dation of  an  action.  Selma  &*  T.  R,  Co.  v. 
Tipton,  5  Ala.  787.— Explaining  Carlisle 
V,  Cahawba  &  M.  R.  Co.,  4  Ala.  70. 

The  right  acquired  by  a  subscriber  to 
stock  in  a  corporation,  to  become  the  owner 
of  the  shares  subscribed  for,  is  a  sufficient 
consideration  for  his  promise  to  pay  for  them. 
Kennebec  &*  P.  R.  Co.  v.  Jarvis,  34  Ate.  360. 

The  defendant,  with  others,  subscribed 
an  agreement  to  take  shares  in  a  corpora- 
tion not  then  organized.  After  its  organi- 
zation he  paid  in  part  for  his  shares.  Held, 
that  this  was  a  sufficient  renewal  of  his 
promise  to  the  corporation  to  enable  it  to 
maintain  assumpsit  for  the  balance,  and  the 
partial  execution  of  the  purpose  designed 


'    ( 


7M 


SUBSCRIPTIONS  TO  STOCK,  15. 


If-;  " 


by  the  charter  forms  a  auflicifint  considera- 
tion for  such  promise.  Kentubtc  &»  P.  H. 
Co.  V.  Palmtr,  34  Me.  366. 

Voluntary  subscriptions  in  aid  of  a  pro- 
posed  railroar!,  wh;n  accepted  and  the  road 
completed  in  accordance  with  the  condi- 
tions of  the  promise,  becomt^  valid  and 
binding  contracts.  Michigan  Midland  &» 
C.  /i.  Co.  V.  Bacon,  33  J// .A  466.  — Follow- 
ing Stevens  v.  Corbitt.  33  Mich.  458. 

In  an  action  upon  a  subscription  for  stock, 
made  according  to  the  charter,  the  fran- 
chises granted  by  the  charter  furnisli  a  valu- 
able consideration  (or  the  subscription,  and  a 
plea  setting  up  want  of  consideration  is  bad. 
Thigptn  V.  Mississippi  C.  K.  Co.,  3a  Miss.  347. 

i.abor  performed  and  money  spent  to  se- 
cure t'i'.<*  location  of  a  depot  arc  sufhcient  con- 
sideration to  support  a  promise  contained  in 
a  subscription  to  pay  money  for  that  object. 
Workman  v.  Campbell,  46  Mo,  305. 

The  interest  acquired  by  a  subscriber  to 
corporate  stock  is  a  good  consideration  to 
support  his  implied  promise  to  pay  for  such 
stock,  and  raises  a  sufficient  mutuality  of 
contract  between  him  and  the  company  to 
render  the  contract  a  binding  one.  Buffalo 
&-  N.  Y.  C.  li.  Co.  V.  Dudley,  14  N.  V.  336. 
East  Tenn.  &*  V.  B.  Co.  v.  Gammon,  5  Sneed 
( Tenn.)  567. 

A  subscription  to  capital  stock  is  not 
necessarily  invalid  because  made  before  the 
corporation  is  org. 'lizcd,  and  no  cash  pay- 
ment is  m.'ide.  The  right  of  membership  is 
a  sufficient  consideration  to  bind  a  sub- 
scriber, and  he  cannot  revoke  the  subscrip- 
tion. Luke  Ontario,  A.  &*  N  Y.  B.  Co.  v. 
Mason,  16  N.  K.  451. 

A  number  of  taxpayers  who  were  inter- 
ested in  defeating  a  town  subscription  to 
railroad  stock  appointed  a  committee  to 
further  their  interests,  and  after  a  decision 
had  been  procured  from  the  court  of  ap- 
peals i' dverse  to  the  subscription,  defendant 
executed  a  paper  by  which  he  and  others 
agreed  to  pay  to  the  committee  certain  sums 
of  money  in  cc  nsidi^'ation  that  it  take  such 
other  steps  as  might  be  necessary  to  render 
the  decision  of  tlie  court  of  benefit  to  the 
town,  and  if  necessary  to  take  further  legal 
proceedings.  On  the  faith  of  such  under- 
taking further  services  were  performed. 
Held,  tiiat  tiie  considerations  named  were 
adequate  to  uphold  the  subscriptioti.  Bort 
V.  Snell,  39  Hun  (N.  Y.)  388. 

(a)  Imposing  conditions. — If  certain  sub- 
scribers promise  and  undertake  to  pay  to 


a  company  a  certain  sum  or  sums,  if  it  will 
build  its  road  to  a  designated  place,  the 
subsequent  completion  of  the  road  accord- 
ing to  the  terms  of  the  promise  furnishes 
in  itiielf  a  consideration,  removes  the  objec- 
tion of  want  of  mutuality,  and  renders  the 
promise  binding  upon  the  subscribeis.  D*t 
Moines  Valley  R.  Co.  v.  Graff,  17  Jowa  99. 
First  Nat.  Bank  v.  Hur/ord,  29  Iowa  579. 

A  stipulation  in  an  agreement  to  sub- 
scribe for  shares  in  the  capital  stock  of  a 
corporation  to  the  effect  that  the  instal- 
ments, when  collected,  are  to  be  applied  in 
a  certain  way,  constitutes  no  condition  to 
their  payment.  The  stock  itsslf  is  the  only 
consideration  of  the  agreement,  and  the 
subscription  is  absolute.  New  Albany  &»  S. 
B.  Co.  V.  Fields,  10  Ind.  J  87. 

Where  a  party  promises  to  contribute  in 
aid  of  a  proposed  railroad,  it  will  be  implied 
as  a  condition,  in  the  absence  of  express 
conditions,  that  the  road  be  constructed 
and  operated;  and  upon  this  being  done 
within  a  reasonable  time,  where  no  time  is 
fixed,  the  promise  becomes  operative  and 
binding,  and  the  party  making  it  cannot 
thereafter  repudiate  it.  Stevens  v.  Corbitt, 
33  MicA.  458.  —  Followed  in  Michigan 
Midland  &  C.  R.Co.v.  Bacon,  33  Mich.  466. 

The  fact  that  a  company  was  organized 
to  build  the  road  at  the  time  the  promise 
was  made,  or  that  even  in  the  absence  of 
such  a  promise  the  road  would  have  been 
built,  will  not  defeat  the  promise.  Stevens 
V.  Corbitt,  33  Mic/i.  458. 

A  subscription  for  stock  commenced 
"  We,  the  undersigned,  do  hereby  subscribe 
to  the  preferred  capital  stock  of"  a  railroad 
company  named,  "and  promise  to  pay  (or 
the  number  of  shares  set  opposite  our  re- 
sp;:ctivc  names;  these  subscriptions  not  to 
be  binding  until  (65,000  of  said  stock  is 
subscribed  for."  Then  followed  the  names 
of  the  subscribers,  the  number  of  shares 
subscribed,  and  their  par  value.  Neld,  that 
such  subscriptions,  when  the  full  amount 
was  taken,  constituted  a  valid  contract  on 
the  part  of  the  company  to  issue  the  stock, 
and  on  the  part  of  the  subscribers  to  re* 
ceive  and  pay  for  the  same.  The  implied 
obligation  of  the  company  to  issue  the  stock 
is  a  sufficient  consideration.  St.  Paul,  S. 
&*  '  \  F.  B.  Co.  V.  Bobbins,  a^  Minn.  439,  17 
An.  By.  Bep.Bi. 

De(cndant  subscribed  to  railroad  stock, 
agreeing  to  pay  the  amount  "when  the  track 
of  the  ruad  sliall  be  laid  ready  for  the  running 


^«%- 


SUBSCRIPTIONS  TO  STOCK,  16. 17. 


785 


of  can"  between  certain  tpedfied  points, 
with  a  further  condition  that  it  ihould  be 
payable  i»hen  the  road  should  be  completed 
"  on  the  within  terms,"  provided  the  location 
did  not  run  through  defendant's  lands, 
"  paid  as  a  donation."  The  road  was  com- 
pleted between  the  points  designated,  but 
was  located  on  defendant's  land.  Htid: 
(i)  that  the  subscription  was  not  a  mere 
promise  to  make  a  gift  to  the  company,  and 
was  supported  by  a  sufficient  consideration ; 
(3)  that  the  subscription  became  due  and 
payable  when  the  road  was  completed  be- 
tween the  points  designated  in  the  subscrip- 
tion. Lesh*r  v.  Karshntr,  47  Ohio  St.  303, 
34  N.  E.  Rep.  883. 

A  statute  of  incorporation  required  the 
payment  of  five  dollars  upon  every  share  of 
stock  subscribed  for,  and  declared  that  one 
complying  with  said  condition  should  be  a 
member  of  the  company,  and  that  when 
1000  shares  had  been  subscribed  for  the 
commissioners  designated  might  call  a 
meeting  to  elect  directors.  Defendant  sub- 
scribed for  so  shares  and  gave  his  note 
payable  to  the  commissioners.  Held:  (i) 
that  there  was  a  sufficient  valuable  consid- 
eration  upon  which  to  found  an  action,  and 
that  said  action  might  be  maintained  in  the 
company's  name;  (2)  that  the  provision 
that  each  subscriber  should  be  a  member 
and  the  fact  that  others  had  subscribed 
were  sufficient  to  show  that  the  corpora- 
tion was  in  esse  and  capable  of  taking  the 
promise  through  an  agent,  notwithstanding 
the  right  to  organize  depended  upon  con- 
ditions not  to  take  effect  until  after  the  note 
was  made.  Vermont  C.  /{.  Co.  v.  Clajfes, 
21  yt.  30.  —  Reviewing  Union  Turnpike 
Road  V.  Jenkins,  i  Cui.  (N.  Y.)  381.— Dis- 
tinguished IN  Pittsburgh,  W.  &  K.  R.  Co. 
V.  Applegate,  16  Am.  &  Eng.  R.  Cas.  440,  21 
W.  Va.  173.  Followed  in  Clark  v.  Far- 
riugton,  1 1  Wis.  306. 

16.  Necessity  of  proliinlunry  pay- 
ment at  ttiiio  or  siibRcriptiuii.'*  —  A 
corporation  can  exercise  no  powers  and 
make  no  contracts,  except  such  as  arc  au- 
thorized by  its  charter,  and  i:<  the  mode 
therein  prescribed  ;  and  hence  a  contract  of 
subscription  for  shares  in  its  capital  stock  is 
void  unless  payment  be  made  by  the  sub- 
scriber of  the  per  centum  on  the  amount 
subscribed  by  him,  in  pursuance  of  the  pro- 

*  Payment  of  instalment  on  subscription,  see 
note,  16  Am.  ft  Eng.  R.  Cas.  448. 


visions  of  the  charter.    Fiitr  r.  itiuissippi 
&»  T.  R.  Co.,  33  Miss.  359. 

Where  a  charter  requires  the  payment 
by  a  subscriber  for  stock  of  a  certain 
amount  on  each  share  at  the  time  of  sub- 
scription, a  subsequent  payment,  but  before 
any  calls  have  been  made  for  the  balance 
of  the  stock,  will  be  an  affirmance  of  the 
previous  subscription  and  a  substantial  com- 
pliance with  the  charter.  Fiser  v.  Atittit- 
sippi  &»  T.  R.  Co.,  32  Afiss.  359. 

No  subscription  to  stock  under  Pa.  Act 
of  1868  is  valid,  whether  before  or  after  the 
incorporation,  without  the  payment  of  ten 
per  cent,  on  the  amount  subscribed.  Bu' 
Cher  v.  Dilkburg  &»  M.  R.  Co..  76  Pa. 
St.  306. 

A.  agreed  to  take  unallotted  shares  in  a 
corporation,  and  the  treasurer,  who  was  au- 
thorized to  accept  subscriptions,  agreed  to 
let  him  have  them.  No  allotment  was  ever 
made,  nor  was  the  price  or  any  part  of  it 
paid.  Ou  a  suit  brought  more  than  two 
years  after  this  to  compel  the  issue  of 
shares— A/M,  that  the  agreement  constituted 
no  contract,  even  assuming  that  the  treas- 
urer was  authorized  to  give  a  reasonable 
credit  for  payment,  for  there  was  no  proof 
of  authority  to  issue  shares  except  for  pay- 
ment in  cash.  McComb  v.  Credit  Mobilier, 
13  Phila.  (Pa.}  ,fiX 

A  provisiosi .;  >.  charter  that  the  commis- 
sioners who  procure  stock  subscriptions 
shall  receive  no  subscription  unless  five  per 
cent,  thereof  shall  be  paid  in  cash,  and 
making  them  personally  liable  it  they  do 
not  collect  the  five  per  cent.,  is  not  a  con- 
dition precedent  to  the  due  organization  of 
the  corporation  but  a  mere  personal  lia- 
bility of  the  commissioners.  B/air  v.  Ruth- 
erf  or d,  31  Tex.  465. 

17.  When  such  payment  unneces- 
sary.—Section  6  of  the  Ohio  Act  for  the 
creation  and  regulation  of  incorporated 
companies  (1  S.  &  C.  St.  376)  does  not  pre- 
scribe the  form  of  making  subscriptions,  nor 
does  the  want  of  a  stipulation  for  the  pay- 
ment of  five  dollars  on  each  share  of  stock 
render  the  subscription  invalid.  Chamber' 
lain  V.  Painesville  &*  H.  R.  Co.,  ij  Ohio 
St.  225. 

v..  Gen.  St.  ch,  28,  §  5,  which  provides 
that  "  every  person  subscribing  for  stock  in 
any  railroad  in  this  state  shall  be  required 
to  pay  to  the  commissioners  at  the  time  of 
subscribing  five /tfr  <-/n/M;;i  on  the  amount 
of  stock  for  which  he  shall  subscribe  "  does 


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SUBSCRIPTIONS  TO   STOCK,  18,  10. 


not  apply  when  the  subscription  it  made  to 
the  corporation  directly  after  its  organiza- 
tion and  existence  as  a  corporation  d*  facto. 
Montptlitr  6-  W.  R.  R.  Co.  v.  Lat^don,  46 
Vt.  284, 

18.  To  whom,  when,  and  where 
payable. — Where  a  vote  of  the  directors 
requiring  instalments  directs  that  they 
shall  be  paid  at  the  times  therein  desig- 
nated, but  does  not,  in  terms,  make  tiiem 
payable  to  the  treasurer  of  sucii  corpora- 
tion, the  import  of  such  vote  is  that  said 
instalments  are  payable  to  the  treasurer,  lie 
being  the  proper  officer  to  receive  and  keep 
the  moneys  of  the  corporation.  Danbury 
&*  N.  R.  Co.  V.  Wilson,  22  Conn.  435. 

A  subscription  to  stock  contained  a  pro* 
vision  that  the  stock  subscribed  sliould  be 
paid  in  cash  at  such  times  and  places  as 
should  thereafter  be  prescribed  by  the  di- 
rectors of  the  company,  and  should  be 
applied  to  the  construction  of  the  road. 
Held,  that  the  subscription  could  not  become 
payable  until  the  directors,  at  a  regular 
meeting,  had  fixed  the  time  and  place  of 
payment.  Ross  v.  Lafaytttt  6*  /.  R.  Co.,  6 
Jnd.  297. 

VVhere  a  charter  requires  that  stock 
shall  be  paid  for  in  cash,  and  that  no  cer- 
tificate shall  issue  until  such  payment  is 
made*,  it  is  a  sufficient  compliance  with  the 
statute  prescribing  that  the  charter  of  such 
companies  shall  set  forth  "the  time  when 
and  the  manner  in  which"  it  sliall  be  paid 
for.  New  Orleans  &*  G,  R.  Co.  v.  Frank, 
30  Am.  &*  Eng.  R.  Cas.  275,  39  La.  Ann.  707, 
3  So.  Rep.  310 

10.  PaymenlH  uther  than  in 
money,  ifoiierully.*— (i)  State  and  federal 
decisions. — After  defendant  and  others  had 
rnade  a  subscription  to  st'>ck,  a  construction 
company  signed  for  a  large  amount  of  stock 
which  was  the  same  in  form  iis  other  sub- 
scriptions, but  there  was  a  priv.itr  agree- 
ment witli  the  directors  that  iliry  should 
have  the  building  of  the  road  and  sliould 
pay  for  the  stock  haif  in  cash  and  lulf  in 
work  and  materials.  Held,  that  the  sub- 
scription of  the  construction  company  was 
valid  and  binding,  and  could  not  be  affected 
by  the  contemporaneous  agreement  as  to 
the  manner  of  payment ;  therefore  it  could 
not  be  set  up  by  other  stockholderj  as  a 


•  Mow  8ub«cription«  to  «to<;k  payable,  whether 
in  ':a»h  or  property.  Full-p.;t(l  subscriptions, 
see  rote,  3  Am.  St.  Rep.  817. 


defense  to  an  action  to  recover  the  amount 
of  their  subscriptions,  in  the  absence  of  act- 
ual fraud.  RidgefUld  &»  N.  Y.  R.  Co.  v. 
Brush,  43  Conn.  86,  II  Am.  Ry.  Rep.  18.— 
Distinguishing  New  York,  H.  &  N.  R. 
Co,  7-  Hunt,  39  Conn.  75.  Quoting  Troy 
&  G.  R.  Co.  V.  Newton,  8  Gray  (Mass.)  596; 
Cabct  &  W.  S.  Bridge  Prop'rs  v.  Chapin,  6 
Cush.  (Mass.)  50. 

Where  the  cliarter  of  a  corporation  or  the 
general  law  of  the  state  under  which  it  is 
created  authorizes  capital  stock  to  be  paid 
for  in  property,  and  shareholders  honestly 
and  in  good  faith  pay  their  subscriptions  in 
property  instead  of  in  money,  the  payment 
is  valid,  and  there  is  no  trust  in  favor  of 
creditors  if  the  corporation  becomes  insol- 
vent. Grant  v.  East  &*  IV.  R.  Co.,  54  Ftd. 
Rep.  569,  2  U.  S.  App.  182,  4  C.  C.  A.  511. 

Where  a  subscription  to  stock  is  made 
payable  in  work  and  materials,  and  not  in 
instalments,  the  company  cannot  require 
payment  in  instalments  by  resolution  of 
the  board  of  directors.  Ohio,  I.  &*  I.  R.  Co. 
v.  Cramer,  23  Ind.  490.— DISTINGUISHING 
Ross  V.  Lafayette  &  I.  R.  Co.,  6  Ind.  397. 

The  charter  of  a  railroad  and  banking 
company  enacted  that  the  subscribers  should 
pay,  at  the  time  of  subscription,  twenty  dol- 
lars on  each  share  taken,  in  specie,  or  in  tii« 
notes  of  specie-paying  banks.  It  was  silenf. 
as  to  how  or  when  the  residue  of  the  stoch 
should  be  paid,  but  conferred  al'.  the  usuat 
rights,  powers,  and  privileges  of  banking* 
which  were  exercised  by  other  bank)!  in  the 
state.  Held,  that  the  residue  of  the  stock 
was  payable  in  specie  only.  King  v.  El' 
liott,  1 3  Miss.  428. 

Under  New  York  General  Railroad  Act 
of  1850,  as  amended,  payment  of  subscrip- 
tions to  stock  must  be  made  in  money. 
Tlieiefore  payment  in  patent  rights  of  un- 
certain value  is  not  a  valid  payment,  within 
the  meaning  of  the  statute.  Taskerv.  IVaU 
litce,  (i  Daly  (X.  V.)  364.— DISTINGUISHING 
licai  li  -'.  Smith,  28  Barb.  264 ;  Syracuse,  P.  & 
O.  R.  Co.  V.  Gere,  4  Hun  392;  Black  River 
&  U.  R.Co.  V.  Clarke.  25  N.  Y.  208;  East 
N.  Y.  &  J.  R.  Co.  r.  Lighthall.  6  Rob^.  407. 

In  the  absence  of  any  statutory  restric* 
tions,  a  corporation  has  power  to  receive 
payment-otherwise  than  in  money  for  a  sub- 
scription to  its  capital  stock.  East  N.  Y, 
6-  /  R.  Co.  v.  L^hthall,  5  Abb.  Pr.  N.  S. 
(/V.  J'.)  458,  36  How.  Pr.  481,  6  Robt.  407, 

When  payment  of  a  subscription  to  capital 
slock  has  been  made  to  one  who  ii  author* 


SUBSCRIPTIONS  TO  STOCK,  20. 


737 


ized  to  collect  such  subscriptions,  the  act 
of  such  agent  in  allowing  payment  to  be 
made  otherwise  than  in  money,  although 
beyond  his  authority,  cannot  be  rejected  by 
the  company  after  the  contract  is  executed, 
io  as  to  work  to  the  injury  of  an  innocent 
subscriber.  East  N.  V.  &*  /.  R.  Co.  v. 
Li^hthall,  s  Abb.  Pr.  N.  S.  (N.  Y.)  458,  36 
How.  Pr.  481,  6  liobt.  407. 

A  company  hat  the  right  to  accept  pay- 
ment of  stock  in  labor  or  materials,  in 
damages  which  the  company  is  liable  to 
pay  or  1  any  other  liability  of  the  corpora- 
tion, provided  such  transactions  are  entered 
into  and  carried  out  in  good  faith.  Phil- 
adeiphia  &*  tV.  C.  K.  Co.  v.  Hickman,  28 
/»;?    6/.  318. 

A 1;  agreement  attempting  to  secure  to  a 
£,('  kholder  the  privilege  uf  payir)g  sub- 
scriptions in  store  goods,  or  otherwise,  except 
in  money,  will  be  treated  as  a  fraud  uporx 
other  stockholders,  and  payment  in  money 
enforced.  Henry  v.  Vermillion  &»  A.  R. 
Co.,  17  Ohio  187,— Followed  in  Noble  v. 
Callender,  20  Ohio  St.  199.  Quoted  in 
Clarke  v.  Omaha  &  S.  W.  R.  Co.,  4  Neb.  458. 

(2)  Canadian  decisions.  —  The  act  (22 
Vict.  c.  122)  incorporating  a  transit  com- 
pany enacted  that  it  should  not  be  lawful 
for  the  company  to  proccd  until  ;{|5o,ooo 
of  the  capital  stock  should  have  been  sub- 
scribed and  ten  per  cent,  paid  in.  Subse- 
quently, and  before  ;{|5o,ooo  had  been 
subscribed  or  the  percentage  paid  in,  a 
proposition  was  made  by  C.  to  certain 
stockholders  that  he  should  sell  a  steam 
vessel  to  the  company  for  j^Sooo,  and  that 
in  that  event  he  should  become  a  subscriber 
to  the  amount  of  ^50,000,  and  that  the 
steamer  should  be  paid  for  by  taking  her  as 
a  payment  of  ten  per  cent,  on  the  £^0,000, 
which  was  acceded  to.  Held,  that  this  was 
an  evasion  of  the  statute,  and  an  injunction 
was  granted  restraining  the  company  from 
proceeding  with  any  of  the  operations  there- 
of until  the  conditions  pointed  out  by  statute 
had  been  complied  with.  Howlands,  Mc- 
Nab,  8  Grant's  Ch.  (I/.  C.)  47. 

Defendants  subscribed  under  seal  for  cer- 
tain shares  in  the  capital  stock  of  plaintiff 
company,  promising  and  agreeing  with  each 
other  and  with  plaintif!  to  pay  the  full 
amount  of  the  shares  as  and  when  payable. 
Held,  that  the  evidence  showed  only  a  col- 
lateral agreemei:t  or  representation  by  the 
president  of  the  provisional  board  that  pay- 
ment would  be  accepted  in  goods,  and  '>ot 
7  D.  R.  D.— 47 


a  subscription  conditional  on  auch  accept- 
ance. Kingston  St.  R.  Co.  v.  Fosttr,  44  U. 
C.  Q.  B.  552. 

Semblt,  that  if  the  evidence  had  shown 
such  a  condition  made  verbally,  it  could  not 
have  varied  the  unqualified  subscription 
under  seal,  nor  bound  the  company.  King- 
ston St.  R.  Co.  V.  Foster,  44  U.  C.  Q.  B.  552. 

Defendants,  after  such  subscription,  paid 
ten  per  cent,  on  the  stock,  being  advised,  as 
they  alleged,  by  plaintiff  that  it  was  their 
best  course  to  get  rid  of  the  stock  by  as- 
signment, which  could  not  be  permitted 
until  such  payment.  Held,  clearly  an  irrev- 
ocable adoption  of  the  stock.  Kingstoi. 
St.  R.  Co.  V.  Foster,  44  U.  C.  Q.  B.  552. 

20.  Taking  a  chock  in  payment. 
— Cal.  Act  of  May  20,  1861,  §  2,  provides 
that  there  shall  be  annexed  to  articles  of 
incorporation  an  affidavit  "  setting  forth  in 
substance  that  said  amount  of  stock  has 
been  subset  ibed,  und  that  ten  per  cent,  in 
cash  has  been  actually  and  in  good  faith 
paid  in."  Held,  that  the  treasurer  oir  a  pro- 
posed corporation  might  receive  payment 
of  the  ten  per  cent,  by  check,  where  it  is 
p&/able  at  once  and  is  drawn  against  a  suf- 
ficient fund  to  be  p.  id  on  presentation. 
People  v.  Stockton  <S-  V.  R.  Co.,  45  Cal.  306, 
5  Am.  Ry.  Rep.  i. 

Commissioners  are  not  authorized  to  re- 
ceive checks  of  subscribers  in  payment  of 
the  Sim  required  to  be  paid  at  the  time  of 
subscription ;  specie,  or  its  -iquivalent,  cur- 
rent bills  of  specie-paying  banks,  must  b« 
demanded.  Whether  payments  in  checks 
are  a  compliance  with  the  statute  is  a  ques- 
tion of  law,  and  not  of  fact.  Crocker  v. 
Crane,  21   Wend.  (N.  K.)  211. 

The  provision  of  a  New  York  statute  that 
capital  stock  shall  be  paid  for  in  cash  it 
sufficiently  complied  with  by  taking  a  certi- 
fied check  on  a  national  bank  in  which  the 
subscriber  has  sufficient  funds  to  meet  the 
check.  /«  r*  Staten  island  R.  T.  R.  Co.,  37 
Hun  {JV.  V.)  422 ;  affirmed  in  loi  N.  V.  636. 

Defendant  subscribed  for  a  certain  amount 
of  corporate  stock,  and  gave  his  check  for 
the  ten  per  cent,  that  was  required  by  the 
statute  to  be  paid  in  cash;  but  an  a(];ree- 
ment  was  entered  into  between  H<;fcndant 
and  one  at  whose  solicitation  the  subscrip- 
tion had  been  made,  and  who  took  the 
check,  that  the  check  was  not  to  be  pre- 
sented, nor  the  stock  paid  for.  Held,  that 
the  check  was  a  valid  payment,  in  the  ab- 
sence of  proof  that  such  person  was  author- 


i 


I 


■■■ 


■■ 


III 

■I 


788 


SUBSCRIPTIONS  TO  STOCK,  21, 22. 


.|i 


:;|i< 


ised  to  enter  into  such  agreement,  which 
authority  rrould  not  be  presumed ;  and  after 
completing  the  orgauizaiion  the  corporation 
might  maintain  an  action  on  the  check. 
Syratust,  P.  &•  O.  R.  Co.  v.  Gtr*,  4  Hun 
{N.  r.)  39a,  6  r.  *•  C  636. 

21.  Taking  a  note  in  payment.— 
A  condition  in  a  charter  that  "  five  dollars 
in  cash  shall  be  paid  on  each  share,  at  the 
time  of  the  subscribing."  is  not  a  con- 
dition precedent  to  becoming  a  "sub- 
scriber" ,in  the  company.  And  if,  instead 
of  exacting  the  money,  the  commissioners 
appointed  to  receive  the  subscriptions  take 
a  promissory  note  for  the  amount  from  a 
subscriber,  he  cannot,  after  the  company  li 
organized,  object  that  he  is  not  a  member 
of  the  corporation.  The  amount  may  there- 
fore be  recovered  of  him  by  the  corporation, 
in  an  action  of  assumpsit.  Selma  &*  T. 
Jt.  Co.  V.  RouHtret,  7  Ala.  670. 

A  railroad  has  inherent  authority  to  take 
and  negotiate  a  promissory  note  in  the 
ordinary  course  of  its  businesss;  so  such 
>  :>m,"any  may  take  a  promissory  note  in 
ayr  ent  of  capital  stock.  But  it  cannot,  as 
a  branch  of  its  business,  deal  in  notes  and 
bills  '  '  exchange.  Goodrich  v.  Reynolds, 
31  ///.  490.— Followed  in  Foy  v.  Black- 
stone,  •  !  III.  538. 

Si>il  by  a  company  against  an  adminis- 
\.Tj^K-iX  to  recover  a  subscription  to  stock 
made  by  his  decedent.  To  the  subscrip- 
tion the  following  stipulation  was  appended : 
"  Said  subscription  to  be  paid  in  two  cash 
notes,  I500  each,  due  the  25th  December, 
1853  and  1854,  and  to  have  certificate  when 
said  notes  become  due."  It  was  insisted 
arguendo  that  the  company  had  no  power  to 
make  such  a  condition.  Held,  that  if  any 
condition  was  in  fact  made,  it  would,  per- 
haps, be  void,  and  leave  the  subscription 
absolute.  Flttct  v.  Indiana  &*  I.  C.  R.  Co., 
8  Ind.  460. 

A  railroad  charter  made  it  the  duty  of 
the  commissioners  to  require  payment  of 
five  dollars  in  cash  on  each  share  and  de- 
clared all  subscriptions  void  if  this  cash 
instalment  was  not  paid  at  the  time  of  the 
subscription,  but  a  subscriber  gave  his  note 
(or  the  first  instalment  to  one  of  the  commis- 
sioners, instead  of  paying  cash.  Held,  that 
the  subscription  was  not  void,  and  that  the 
payee  could  recover  on  the  note.  (Pearson, 
J.,  dissenting.)  AfcRae  v.  Russel,  12  /red. 
(N.  Car.)  334.— Distinguished  in  Pitts- 
burgh, W.  &  K.  R.  Co.  V.  Applegate,   16 


Am.  &  Eng.  R.  Cas.  440,  21  W.  Va.  17s. 
Quoted  in  Clark  v.  Farrington,  1 1  Wis.  306. 
Defendant  gave  notes  for  the  ten  per 
cent,  of  a  subscription  to  stock  which  was 
required  to  be  paid  in  cash,  and  for  several 
instalments  which  had  been  called  for.  The 
company  disposed  of  the  notes  before  matu> 
rity  to  a  purchaser  for  value  and  without 
notice,  who  collected  the  notes  from  defend* 
ant.  The  General  Railr jud  Act  required 
tcr.  per  cent,  uf  subscriptions  to  be  paid  in 
money.  Held,  that  the  subscription  was 
valid.  Ogdensburgh,  C.  6*  R.  R.  Co.  v. 
IVolley.  3  AM.  App.  Dec.  (N.  Y.)  398,  I 
ICeyes  118,  34  How.  Pr.  54.— Followed  in 
New  York  &  O.  M.  R.  Co.  v.  Van  Horn,  57 
N.  Y.  473. 

Ui"ler  the  above  statute,  if  both  the  sub- 
scrip  ion  and  the  actual  cash  payment  of 
ten  per  cent,  have  been  made  the  contract 
is  binding,  although  the  acts  were  not  si- 
multaneous. Ogdensburgh,  C.  &*  R.  R.  Co. 
V.  IVolley,  3  Abb.  App.  Dec.  (N.  Y.)  398,  i 
Keyes  1 18,  34  How.  Pr.  54. 

Tiie  validity  of  the  subscription  doei  not 
depend  on  whether  the  payment  of  the  ten 
per  cent,  was  made  willingly  or  by  legal 
compulsion.  Ogdensburgh,  C.  &*  R.  R.  Co, 
v.  Wolley,  3  Abb.  App.  Dec.  (N.  Y.)  398,  i 
Jieyes  1 18,  34  How.  Pr.  54. 

A  company  may  take  and  recover  on  a 
promissory  note  given  for  the  amount  of 
assessments  due  by  a  stockholder  on  his 
shares.  S/.  Stephen  Branch  R,  Co.  v.  Black, 
13  New  Brun.  139. 

22.  Taking  a  note  Hecured  by 
mortgage  in  payment.  —  Under  the 
usual  power  of  corporations  to  adopt  the 
most  convenient  means  of  carrying  out  their 
purpose,  a  railroad  company  has  authority 
to  receive  from  a  subscriber,  as  payment  for 
stock,  a  promissory  note  secured  by  mort- 
gage on  real  estate,  instead  of  cash ;  and  the 
securities  arc  valid,  and  will  be  enforced 
against  the  maker.  Clark  v.  Farrington,  11 
Wis.  306.  Lyon  v.  Ewings,  17  IV is.  61. — 
Followino  Clark  v.  Farrington,  11  Wis. 
306;  niunt  r.  Walker,  11  Wis.  334;  Cornell 
V.  Hichens,  11  Wis.  353. — Andrews  v.  Hart, 
§7  H''«.  297.— Following  Clark  V.  Farring- 
ton, II  Wis.  306;  Blunt  V.  Walker,  11  Wis. 
334;  Cornell  v.  Hichens,  11  Wis.  353. 

Where  a  charter  makes  no  provision  how 
stock  shall  be  paid  for,  but  leaves  it  to  the 
directors  to  decide  the  amount  to  be  paid 
on  subscription  and  the  time,  manner,  and 
proportions  in    which   subsequent   instal* 


SUBSCRIPTIONS  TO  STOCK,  23, 24. 


789 


nentt  shall  be  paid,  and  empowers  them  to 
make  other  contracts  "  as  the  execution  and 
management  of  the  work,  and  the  conven- 
ience and  interest  of  the  company,  may  re- 
quire,"  the  company  may  accent  a  note,  se* 
cured  by  mortgage,  in  payment  for  stock. 
Clark  V.  Farrington,  1 1  Wis.  306. 

And  such  mode  of  payment  is  no  fraud 
on  cash-paying  subscribers.  Clark  v.  Fat' 
ritifitoH,  II  IVis.  306.— Following  Vermont 
C.  i<.  Co,  V.  Clayes,  21  Vt.  30.  Quoting 
McRae  v.  Russel.  12  Ired.  (N.  Car.)  224. 

Even  if  it  was  a  fraud  as  to  the  cash-pay- 
ing subscribers,  the  maker  of  the  note  and 
mortgage  could  not  Mt  that  fact  up  at  a 
defense.    Clark  v.  Farrington.  1 1  Wis.  306. 

Notice  to  a  purchaser  of  a  note  and  mort- 
gage given  in  payment  of  stock,  before 
maturity,  of  the  pisrpose  of  their  execution, 
does  not  impair  his  rights  as  a  bona  fidi 
holder.    Andrews  v.  Hart,  17  Wis.  297. 

The  interest  on  such  note  was  payable 
annually,  and  both  principal  and  ititerest 
were  payable  in  Wisconsin.  The  note 
(which  was  payable  to  bearer)  md  the 
mortgage  were  transferred  with  a  bond  of 
the  company  attached,  by  which  it  guaran- 
teed to  the  holder  payment  of  the  interest 
semi-annually  at  New  York  City,  and  pay- 
ment of  the  principal  at  the  same  place. 
The  bond  also  provided  that  the  note  and 
mortgage  might  be  "  transferred  in  connec- 
tion therewith,  but  not  otherwise,  to  any 
party  or  purchaser  whomsoever."  Held, 
that  this  guaranty  did  not  affect  the  nego- 
tiable character  of  the  note  and  mortgage. 
Andrews  v.  Hart,  17  Wis.  297.— FOLLOW- 
ING Crosby  v.  Roub,  16  Wis.  616. 

23.  TidcliiK  couvoyauce  of  l«nd  in 
payment. — A  written  subscription  to  cor- 
porate stock,  and  a  deed  conveying  land  to 
the  corporation  in  payment  of  such  sub- 
■cription,  when  accepted,  bind  the  corpora- 
tion equally  with  the  subscriber,  and  cannot 
be  taken  advantage  of  by  the  corporation 
on  the  ground  that  it  did  not  sign  them. 
Cincinnati,  U.  ^  F.  W.  K.  Co.  v.  Ptarct,  28 
Jnd.  502. 

Previous  to  the  passage  of  Ohio  General 
Railroad  Act  of  February  11,  1848.  a  com- 
pany was  chartered  by  a  special  act  which 
empowered  the  directors  to  transact  all  the 
business  of  the  company,  but  did  not  ex- 
pressly authorize  subscriptions  to  the  capital 
stock  in  real  estate.  This  privilege  was 
conferred  by  the  Act  of  1848,  §  14,  upon  all 
railroad    corporations   then   existing   that 


might  accept  the  power  to  conferred.  After 
the  passage  of  that  act,  the  directors  en- 
tered of  record  a  resolution  that  subscrip- 
sions  to  the  capital  stock  might  be  made  in 
real  estate.  The  company  then  received 
real-estate  subscriptions  to  its  stock,  and 
sold  and  conveyed  the  same  to  bona  fid* 
purchasers,  with  the  knowledge  c'i  such 
subscribers,  and  without  objection  on  tlieir 
part,  until  many  years  after,  when  the  slock 
had  become  worthless,  and  the  enterprise 
for  which  the  company  was  organized  had 
been  abandoned.  H*ld,  that  in  »  ^.uit  by  a 
subscriber  against  a  purchaser  from  the 
company,  to  recover  back  the  land  con- 
veyed by  him  to  the  company  on  such  sub- 
scription, proof  of  the  exercise  by  the  com- 
pany of  the  privileges  conferred  by  the  Act 
of  1848,  under  a  resolution  of  the  direct- 
ors, and  with  the  acquiescence  of  the 
parties  to  the  suit,  was  sufficient  evidence, 
as  between  them,  that  the  company  had  ac- 
cepted the  powers  conferred  in  that  section, 
and  was  thereby  authorized  to  take  and 
convey  land  received  on  subscription  to  its 
capital  stock.  Goodin  v.  Evans,  18  Ohio 
St.  150. 

3.  Construction  and  Validity. 

24.   How  ooiiatrued,  generally.— 

The  president  of  a  locomotive  company 
subscribed  for  certain  stock  in  a  railroad 
company,  payable  in  cash  upon  the  delivery 
of  twelve  engines.  Held,  in  an  action  to  re- 
cover the  amount  of  the  subscription,  that 
it  was  competent  for  the  president  to  put  in 
evidence  a  contract  between  his  company 
and  the  railroad  company,  of  the  same  date 
as  the  subscription,  for  the  delivery  of 
twelve  engines,  and  then  to  show  by  parol 
that  that  was  the  contract  referred  to  in  hit 
subscription,  and  that  the  twelve  engines 
had  not  all  been  delivered.  Rutland  S» 
B.  K.  Co.  v.  Crocker.  4  Blatchf,  (U.  S.)  179, 
29  yt.  540. 

Under  Ala.  Code  1876,  §  1824,  requiring 
subscriptions  to  stock,  payable  in  labor  or 
property,  to  be  taken  at  their  money  value, 
a  railroad  company  adopted  a  resolution  to 
sell  its  property  to  another  company  for 
|7So,ooo,  one  half  payable  in  stock,  and  the 
other  half  in  bonds.  It  entered  a  subscrip- 
tion for  $375,000  of  stock, "to  be  paid  for 
in  railroad  property  •  •  ♦  of  the  value  of 
$375,000."  Held,  that  the  subscription  must 
be  construed  in  connection  with  the  retolu- 


1; 


/    X 


I 


n 


m 


740 


SUBSCRIPTIONS  TO  STOCK,  26-27. 


I 


[1; 


i 
I 


tion,  and  it  wu  not  conclusive  in  itielf  that 
the  value  of  the  entire  property  was  not  over 
$375,000.  to  at  to  render  «oid  tlie  issue  of 
$375,000  in  bondi  under  the  constitutional 
provision  forbidding  overcapitalization. 
CraiU  V.  East  &*  W.  Ji.  Co.,  54  Ftd.  Rtp. 
569.  a  U.  S.  App.  182.  4  •".  C.  A.  511.— Fol- 
lowed IN  Thomson-Houston  Elec.  Co.  v. 
Dallas  Con.  T.  R.  Co.,  54  Fed.  Rep.  looi. 

Tlic  existence  and  or(;anlzation  of  a  cor- 
poruiion  are  admitted  by  a  writing,  where- 
by the  obligor  subscribed  for  stock  in  the 
corporation,  as  follows  :  "  We,  the  under- 
signed, agree  to  subscribe  the  number  of 
shares  of  fifty  dollars  euch  to  the  capital 
stock  of  Mt.  Sterling  Coal  Road  Company," 
etc..  signed  by  "  John  Lail,  ten  shares,"  etc. 
Lail  V.  Mt.  Sterling  Coal  Road  Co.,  1 3  Bush 
(A>.)  32. 

Several  parties  undertook  to  subscribe  to 
a  certain  amount  uf  stock  if  the  company 
would  extend  its  road  to  a  certain  pomt. 
Htld,  to  amount  to  a  joint  contract  on  the 
part  of  all  the  signers.  Ntw  Haven  &*  N. 
Co.  V.  Hay  Jen,  119  Atast.  361. 

By  a  contract  of  subscription  for  stock,  it 
was  stipulated  that  two  per  cent,  should  be 
paid  at  the  time  of  subscription,  and  three 
per  cent,  in  three  months  from  that  date, 
and  the  rcmaincjer  when  called  for  and  re- 
quired by  the  president  and  directors ;  and 
the  first  two  instalments  were  not  to  be 
called  for  until  March  1,  1853.  Held,  that 
the  first  two  instalments  were  payable  on 
March  1,  1853,  and  the  latter  was  payable 
thereafter,  at  the  discretion  of  the  company, 
according  to  the  terms  of  the  contract. 
Roberts  v.  Mobile  &»  O.  R.  Co.,  32  Miss.  373. 

A  company  authorized  by  its  charter  to 
collect  instalments  of  stock  at  such  times  as 
may  be  required  by  the  iiiesident  and  direct- 
ors may  make  contracts  fur  the  payment 
of  stock,  subject  to  conditions  as  to  the  calls 
for  instalments ;  anc  if  they  had  not  this 
right,  not  merely  the  condition  as  to  the 
payment,  but  the  whole  contract,  would  be 
void.  Roberts  v.  Mobile  A*  0.  R.  Co.,  3a 
Miss.  373- 

Each  subscription  is  an  independent  un- 
dertaking and  in  no  way  ailected  by  the 
terms  of  other  subscriptions.  Connecticut 
&*  P.  R.  R.  Co.  V.  Bailey,  24  Vt.  465. 

25. as  reflp«ct8  route,  termini, 

etc. — The  terms  of  a  written  subscription 
to  stock  must  be  understood  in  their  plain, 
ordinary  sense,  unless  they  have  acquired  a 
peculiar  sense  distinct  from  the  popular  one, 


or  unless  the  context  shows  that  in  the  par- 
ticular instance,  in  order  to  aflect  the  inten* 
tion  of  the  parties,  they  must  be  understood 
in  some  peculiar  sense.  Evansville,  I.  &* 
C.  S.  L.  R.  Co.  V.  Meeds,  1 1  Ind.  273. 

Where  a  subscription  for  stock  in  a  rail- 
road does  not  contain  a  stipulation  against 
a  change  of  termini  of  the  road,  a  subse- 
quent change  will  not  invalidate  the  sub- 
scription. Greeneville  &•  P.  R.  N.  G.  R. 
Co,  V.Johnson,  8  Buxt.  (Tenn.)  33a. 

20.  Need  not  show  how  money  Is 
to  bo  expended.  —  If  a  company  is  au- 
thorized to  build  its  railroad  in  three  sec- 
tions, and.  after  the  completion  of  the  first 
section,  subscriptions  are  obtained  for  the 
second  and  third  sections  together,  the 
same  may  be  collected,  although  it  does  not 
appear  whether  they  are  to  be  expended 
upon  only  one  of  the  sections,  or,  if  divided, 
how  much  is  to  be  applied  to  each  section. 
Agricultural  Branch  R.  Co.  v.  Winchester, 
13  Allen  (Mass.)  ap. 

27.  Validity,  gouerolly.  —  A  stipula- 
tion by  a  company  to  deliver  to  a  share- 
holder, as  soon  as  fifteen  pounds  per  share 
shall  have  been  paid  up  on  his  twenty- 
pound  shares,  debentures  to  the  value  of 
five  pounds  per  share,  as  soon  as  the  com- 
pany should  be  in  a  position  legally  to  do 
so.  is  not  illegal.  West  Cornwall  R.  Co.  v. 
Mowatt,  1$  Q.  B.  521,  iljur.  101,  19  L.J, 
Q.  li.  478. 

A  subscription  to  railroad  stock  made  in 
contemplation  of  a  charter  is  legal  and  may 
be  enforced.  Tonica  &*  P.  R.  Co.  v.  Mc- 
Neely,  at  ///.  71. 

But  to  be  valid  such  subscription  must 
be  recognized  after  the  corporation  is  organ- 
ized. In  re  Rochester,  H.  &*  L.  R.  Co.,  50 
Hun  29,  18  A^.  Y.  S.  R.  654.  3  N.  Y. 
Supp.  457. 

The  charter  of  a  conrp»ny  prescribed  a 
form  in  which  subscriptions  of  stock  should 
be  taken,  and  also  provided  that  the  com- 
pany should  have  all  powers  incident  to  a 
corporation  at  common  law.  A  subscrip- 
tion, after  pursuing  the  language  of  the 
form  given,  contained  also  additional  stipu- 
lations not  inconsistent  with  those  pre- 
scribed, and  which  by  the  common  law  it 
would  have  been  competent  for  the  parties 
to  make.  Held,  that  the  subscription  was 
valid.  Fisher  v.  Evansville  &*  C.  R.  Co.,  7 
Ind.  407. 

N.  Y.  General  Railroad  Act  nf  1850,  ch. 
140,  §  4,  does  not  invalidate  any  contract  of 


SUBSCRIPTIONS  TO  STOCK.  a»-30. 


741 


subscription  valid  at  common  law.  Buffalo 
A-  J.  R.  Co.  V.  afford,  4  Am.  6*  Eng.  R. 
Cat.  387. 87  A':  Y.  294 ;  affirming  33  Hun  359. 

A  subscription  to  stocic  may  be  valid 
though  It  is  not  made  on  the  boolcs  of  the 
commissioners  named  in  the  charter,  though 
two  per  cent,  on  each  share  of  stocic  is  not 
paid  at  the  time  of  jubscription,  and  though 
the  subscription  was  made  before  the  com- 
pany was  organized,  and  before  the  commis- 
sioners named  in  the  charter  had  opened 
books  of  subscription.  Stuart  v.  Vall^  R. 
Co..  33  Graft.  (Va.)  146. 

A  subscription  for  stock  is  a  contract  with 
the  corporation,  and  courts  of  justice  will 
enforce  it  for  or  against  either  party.  Blunt 
V.  Walker.  11  IVis.  334. 

28.  How  fur  Hiibject  to  statute  of 
frauds.— In  an  action  upon  a  subscription 
piiper,  the  complaint  set  out  the  contract, 
which  was  as  follows :  "  Ten  days  after  the 
completion  of  tiie  I.  8l  St.  L.  railroad  from 
I.  H.  county,  and  the  running  of  a  train  of 
cars  thereon,  I  promise  to  pay  to  the  order 
of  said  railroad  company,  at  the  bank  of  P.. 
the  sum  of  $100,  without  any  relief  what- 
ever from  valuation  or  appraisement  laws. 
The  consideration  of  this  note  is  the  con- 
struction of  said  road  as  aforesaid,  within 
one  half  mile  of  the  town  of  D.,  and  the 
promise  and  agreement  of  said  company 
tliat,  by  means  of  said  road  and  its  connec- 
tions, the  company  will  run  trains  through 
from  I.  L.,  within  two  years  from  the  first 
day  of  January,  1869;"  dated  November  25, 
1868,  and  signed  by  the  defendant;  and 
averred  performance  within  the  time  and  in 
the  manner  mentioned.  Held:  (1)  that  the 
contract,  being  capable  of  performance 
within  one  year,  was  not  within  the  statute 
(if  frauds ;  (2)  that  if  the  contract  had  origi- 
nally been  within  the  statute,  and  therefore 
not  binding  on  the  plaintiff,  yet,  after  per- 
formance by  tlie  company,  the  maker  could 
not  defend  on  the  ground  tliat  he  alone  had 
signed  the  instnmient.  Strau^han  v.  In- 
dianapolis &*  St.  L.  R.  Co.,  38  fnd.  185,  10 
A>n.  A>.  A'efi.  263.  —  QUOTING  Des  Moines 
Vallcv  R.  Co  V.  Graff,  27  Iowa  99.— FoL- 
l.owF.ii  IN  Curtis  V.  Indian.ipnlis  &  St.  L.  R. 
Co.,  38  Ind.  223;  Wilson  ?«.  Indianapolis  & 
St.  L,  R.  Co.,  38  Ind.  227;  Emmons  v.  In- 
dianapolis 4  St.  L.  R.  Co.,  38  Ind.  247; 
King  V.  Inrlianapolis  ft  St.  L.  R.  Co..  38 
Ind.  266;  Scearcc  r.  Indianapolis  <%  St.  L. 
R.  Co.,  38  Ind.  271;  Wcav'T  7'.  Iiidi  inapnlis 
&  St.   L.  R.  Co.,  38  Ind.  277;    N,  li  .Is  t'. 


Indianapolis  &  St.  L.  R.  Co.,  38  Ind.  379; 
Blake  v.  Indianapolis  &  St.  L.  R.  Co.,  38 
Ind.  323;  Keeney  v.  Indianapolis  &  St.  L. 
R.  Co.,  38  Ind.  348;  Gregg  v.  Indianapolis 
&  St.  L.  R.  Co.,  38  Ind.  372;  Hunt  v. 
Indianapolis  &  St.  L.  R.  Co.,  38  Ind.  383 ; 
Smith  V.  Indianapolis  &  St.  L.  R.  Co..  38 
Ind.  389;  Welsham  v.  Indianapolis  &  St.  L. 
R.  Co.,  38  Ind.  389;  Nave  v,  Indianapolis  & 
St.  L.  R.  Co.,  38  Ind.  443:  Newman  v.  In- 
dianapolis &  St.  L.  R.  Co.,  39  Ind.  153. 

A  subscription  for  shares  of  stock  in  an 
ordinary  corporation  is  not  a  contract  (or 
the  sale  of  goods,  wares,  or  merchandise, 
within  the  statute  of  frauds.  IVeM  v.  Bal- 
timor*  6-  E.  S.  R.  Co.,  54  Am.  &*  Eng.  R. 
Ca    203,  77  Afd.  93,  36  Atl.  Rep.  113. 

2U.  Validity  of  subscriptions  prior 
to  incorporation.— Prior  to  the  filing  of 
plaintifl's  articles  of  association  defendant 
subscribed  for  shares  of  its  capital  stock, 
and  thereafter  paid  two  instalments  of  ten 
per  cent,  each  upon  his  subscription,  pur- 
suant to  calls  by  the  company.  Held,  that 
the  subscription  was  valid  and  binding,  and 
became  so  on  the  payment  of  the  first  in- 
stalment. Buffalo  &*  J.  R.  Co.  v.  Gtfford.j^ 
Am.  <S-  Eng.  R.  Cat.  387,  87  A^.  Y.  394 ;  af- 
firming 22  Hun  359.— Applied  In  re  Roch- 
ester, H.  &  L.  R.  Co.,  $0  Hun  29, 18  N.  Y.  S. 
R.  654,  3  N.  Y.  Supp.  4S7. 

Under  New  York  General  Railroad  Act, 
§  4,  a  subscription  to  stock  which  is  not 
payable  until  the  railroad  is  in  operation  is 
void.  In  re  Rochester,  H.  &»  L.  R.  Co.,  50 
Hun  29.  18  N.  Y.  S.  R.  654.  2  N.  Y.  Supp. 
457.— Applying  Troy  A  B.  R.  Co.  v.  Tib- 
bits,  18  Barb.  (N.  Y.)  297;  Poughkeepsie  A 
S.  P.  P.  R.  Co.  T/.  GrifTin,  24*N.  Y.  150; 
Butternuts  &  O.  Turnpike  Co.  v.  North,  1 
Hill  (N.  Y.)  518. 

Where  the  commissioners  appointed  to 
receive  subscriptions  to  stock  are  em- 
powered to  reject  such  subscriptions  before 
the  organization  of  the  company,  and  do 
not  do  so,  th<;  contract  entered  into  by  sub- 
scribing for  stock  is  sufficiently  mutual  to 
make  it  valid.  Connecticut  &*  P.  R.  R.  Co. 
V.  Bailey,  24  Yt.  465. 

30.  Subscription  pending  consoli- 
dation. —  Three  existing  companies  were 
consolidated.  A  subscription  was  made 
after  the  agreement  for  consolidation  but 
before  it  was  filed  in  the  office  of  the  secre- 
tary of  the  commonwealth.  Held,  that  the 
filing  of  the  agreement  in  the  office  of  the 
ucrrctary  was  not  necessary  to  validate  the 


f'i 

I 


m 


\m 


t 


749 


SUBSCRIPTIONS  TO  STOCK,  81-85. 


;?. 


subscription.  McClurt  v.  Ptopii's  Friight 
R,  Co.,  I  Am.  4*  Et^,  R.  Cat.  371.  90  Pa. 
St.  369. 

31.  SubseriptionH  by  agent  or 
trustee.  —  A  bona  fide  subscription  for 
■tocic  by  one  person  in  his  own  name,  but 
really  as  trustee  and  agent  for  another  who 
has  requested  such  stocic  to  be  subscribed 
for,  is  valid.  Davidson  v.  Grangt,  4  Grant's 
Ck.  {(/.  C.)  377. 

32.  SubRcrlptloiis  by  way  of  dona- 
tion.—A  subscription  to  a  railroad  as  a  do- 
nation to  induce  it  to  locate  the  road  at  a 
particular  place  is  not  void  as  being  against 
public  policy.  Missonri  Pac.  R.  Co.  v.  Ty- 
gard,  22  Am.  &•  Eng.  R.  Cat.  54,  84  Mo. 
263,  54  Am.  Rep.  97.— Approving  Berryman 
V.  Cincinnati  Southern  R.  Co.,  14  Bush 
(Ky.)  7S5:  Cumberland  Valley  R.  Co.  v. 
Baab,  9  Watts  (Pa.)  458:  McClure  v.  Mis- 
souri River,  Ft.  S.  &  G.  R.  Co.,  9  Kan.  373. 
Distinguishing  Pacific  R.  Co.  v.  Seely. 
45  Mo.  212.  Reviewing  Workman  v. 
Campbell,  46  Mo.  306. 

33.  Secret  nffrcements  In  fraud  of 
other  subscribers.  —  A  public  corpora- 
tion cannot  receive  a  subscription  to  its 
stock  on  special  terms,  at  less  than  the  par 
value  of  its  shares,  where  so  doing  will 
operate  a  fraud  upon  creditors  and  other 
shareholders.  Mann  v.  Cooke,  30  Conn.  178. 
—Approved  in  Putnam  v.  New  Albany,  4 
Diss.  (U.  S.)  365. 

A  secret  agreement  made  with  a  sub- 
scriber to  stock,  who  subscribes  with  others, 
that  he  shall  pay  only  a  part  of  his  subscrip- 
tion, is  fraudulent  as  to  the  other  sub- 
scribers, and  void,  and  his  subscription  will 
be  valid  and  binding  for  the  whole  amount 
thereof.  Galena  &*  S.  fV.  R.  Co.  v.  Ennor, 
116  ///.  5S.  4  A^.  E.  Rep.  763. 

34.  Instances  of  valid  subscrip- 
tions.— Where  subscriptions  are  made  upon 
the  condition  that  seventy-five  per  cent,  of 
the  cost  of  certain  sections  of  the  road 
shall  be  subscribed  for  "  by  responsible  per- 
sons," before  conmencing  its  construction, 
the  fact  that  some  of  the  subscriptions  turn 
out  to  be  worthless  will  not  invalidate 
others,  where  the  worthless  ones  were  ob- 
tained in  good  faith  from  persons  appar* 
ently  able  to  pay.  Penobscot  R.  Co.  v.  Dum- 
mtr,  40  Me.  172. 

A  company  was  chartered  simply  as  a 
railroad  company,  and  a  subscription  to 
its  stock  contained  the  true  name  of  the 
company  at  its  head,  but  the  body  of  the 


instrument  recited  that  the  signers  tub* 
scribed  for  so  much  stock  in  "  a  horse  rail- 
road." Held,  that  the  introduction  of  the 
additional  word  "  horse  "  in  the  name  of 
the  company  could  not  mislead  a  subscriber, 
and  that  the  subscription  would  have  been 
valid  even  if  the  true  name  o'  the  company 
had  been  omitted  from  the  heading.  Oler 
V.  Baltimore  5*  R.  R.  Co.,  41  Md.  $83.  7  Am. 
Ry.  Rep.  49$. 

After  the  grant  of  a  charter  providing 
that  the  capital  stock  of  the  company  should 
not  exceed  3,000  shares  of  $100  each,  sub- 
scriptions were  received  as  follows :  "  Prov- 
idence, June,  1873.  We,  th:  subscribers, 
severally  agree  to  and  with  the  Warwick 
railroad  company  that  we  will  take  the 
number  of  shares  of  one  hundred  dollars 
(|ioo)  each,  in  the  capital  stock  of  said  com- 
pany, set  o;.posite  our  respective  names, 
under  the  provisions  of  its  charter,  and  that 
we  will  pay  for  the  same  in  such  manner  as 
the  board  of  directors  may,  under  the  char^ 
ter,  direct."  Held:  (i)  that  the  contract 
was  good  and  the  subscriber  liable,  notwith- 
standing the  whole  capital  was  not  sub- 
scribed for :  (3)  that  the  word  "  share  "  did 
not  imply  a  proportion  of  a  definite  capitiil ; 
(3)  that  subscribing  for  a  share  was  equiva- 
lent to  subscribing  for  |ioo.  Warwick  R. 
Co.  V.  Cady,  w  R.  t.  131. 

Such  a  case  is  to  be  distinguished  from 
those  in  which  a  definite  capital  is  fi:xed,  or 
a  definite  proportion  or  sum  is  reqv.ired  as 
a  condition  precedent  to  organization,  or  in 
which  conditional  subscriptions  are  made. 
Warwick  R.  Co.  v.  Cady,  11  R.  I.  131. 

36.  Instances  of  invalid  subscrip- 
tions.—A  charter  provided  that  no  instal- 
ments of  subscriptions  to  its  capital  stock, 
after  the  first,  should  be  called  for  until  at 
least  $500,000  of  the  capital  stock  should  be 
subscribed.  After  such  subscriptions  to  the 
amount  of  $200,000  had  been  made,  a  con- 
tractor agreed  with  the  company  to  construct 
its  road,  and  to  accept  in  part  payment,  on 
the  completion  of  the  road,  $300,000  in  its 
capital  stock.  The  contractor  afterwards 
became  insolvent,  and  failed  to  fulfil  his  con- 
tract. Held,  that  such  agreement  was  not  a 
subscription  to  stock  within  the  meaning 
of  the  proviso  in  the  charter.  New  York, 
H.  6*  N.  R.  Co.  V.  Hunt,  39  Conn.  75.  4  Am. 
Ry.  Rep.  56.— Distinguished  in  Ridgefield 
&  N.  Y.  R.  Co.  V.  Brush,  43  Conn.  86. 

Articles  were  filed,  under  Oreg.  General 
Incorporation  Law,  to  incorporate  a  com- 


SUBSCRIPTIONS  TO  STOCK,  36. 


748 


b* 

il- 
le 
of 

it, 
en 


pany  with  a  capital  stocic  of  $7,250,000, 
divided  into  72,500  shares  of  |ioo  each. 
Six  diilerent  persons  subscribed  one  share 
each,  when  one  of  them,  in  behalf  of  the 
corporation,  made  a  subscription  in  the  fol- 
lowing words:  "Oregon  Central  Railroad 
Company,  by  G.  L.  Woods,  Chairman,  sev- 
enty thousand  shares,  seven  million  dollars." 
Htld,  that  this  subscription  for  tiic  company 
was  a  nullity,  and  that  those  who  had  sub- 
scribed the  six  shares  could  not  lawfully 
elect  a  board  of  directors  and  organize  the 
corporation,  and  that  a  board  of  directors 
elected  by  them  could  not  lawfully  transact 
business  for  the  corporation.  Holladay  v. 
Eilioti,  8  C7r«-.  85. 

4.  Obligation  to  Pay, 

30.  Ill  ifeiiorttl.*  —  A  subscriber  for 
stocic  in  an  incorporated  company,  to  whom 
the  charter  does  not  accord  that  privilege, 
cannot  withdraw  from  the  company,  and 
thus  avoid  liability  to  pay  for  his  stock. 
Stlma  A-  T.  Ji.  Co,  v.  Tipton,  5  Ala.  787. 

Stocic  is  originally  acquired  in  a  corpora- 
tion  by  a  subscription  therefor.  This  sub- 
scription is  a  contract  defined  and  regulated 
by  the  organic  law  of  the  corporation.  An 
incorporator  is  not  entitled  to  stocic  as  a 
mere  gratuity.  He  can  only  acquire  it  by 
purchase  or  by  subscription  therefor,  by 
which  he  contracts  to  pay  calls  and  assumes 
the  other  liability  to  creditors  and  the  corn- 
par,  which  such  relation  imposes.  Brown 
V.  Florida  Southtrn  R.  Co.,  16  Am.  &»  Et^g. 
Ji.  Cas.  463,  19  Fla.  472. 

Subscribers  agreed  to  take  stock  and  pay 
for  the  same  '  in  such  instalments  and  at 
such  times  as  might  be  required  by  the 
board  of  directors."  The  subscriptions  con- 
tained a  further  condition  that  the  stock 
was  not  to  be  paid  for  until  the  road  should 
be  "  so  located  and  constructed  "  as  to  make 
a  certain  town  a  point  thereon.  HM,  that 
the  entire  construction  of  the  road  was  not 
intended  to  be  a  condition  precedent  to  the 
payment  of  the  stock ;  and  the  stock  must 
be  paid  for  as  the  work  progresses.  Afc- 
At  Ulan  V.  Maysvillt  6-  L,  R.  Co.,  15  B.  Mon. 
(Ky.)  218.— Approved  in  Pacific  R.  Co.  v. 
Scely,  45  Mo.  212. 

One  who  agrees  to  take  and  fill  a  share 
in  the  capital  stock  of  a  corporation  is 
liable  to  pay  all  assessments  legally  made 

*  Liability  of  stockholders  on  subscriptions, 
see  notes,  38  Am.  &  Eng.  R.  Cas.  498;  4  Id.  384. 


on  that  share.    BuckJUId  Branch  R,  Co,  r. 
Irish,  39  Alt,  44. 

The  term  "  to  fill  "  a  share  of  stocic  in  • 
corporation,  as  used  in  a  stock  subscription, 
is  equivalent  to  an  express  promise  to  pay 
legal  assessments  made  upon  the  share. 
Bangor  Bridgt  Co.  v.  AfcMahon,  10  Att,  478. 

Complainants,  by  subscribing  to  the  shares 
of  stock,  promised  not  only  to  take  the 
shares,  but  to  pay  for  them  in  accordance 
with  the  terms  and  conditions  oi  the  sub« 
scription.    Busty  v.  Hooper,  35  Aid.  ■$• 

One  of  the  original  associates  for  the 
formation  of  a  company,  who  signs  a  sub- 
scription agreeing  to  take  a  certain  number 
of  shares  of  the  capital  stock  of  the  proposed 
company,  and  to  pay  therefor  "at  such 
times  and  in  such  sums  as  the  same  shall  be 
assessed,  demanded,  and  required  to  be  paid 
by  the  directors  of  said  company."  but  who 
afterwards  fails  to  sign  the  articles  of  in- 
corporation, or  to  subscribe  for  stock  on 
the  commissioner's  books,  is  liable  upon  hie 
preliminary  subscription  after  the  company 
has  been  formed  and  assessments  made  and 
payment  demanded.  Peninsular  R.  Co,  v. 
Duncan,  28  A/ieh,  130,  12  Am,  Ry.  Rep,  248. 
—Distinguished  in  Sedalia,  W.  &  S.  R. 
Co.  V.  Wilkerson,  25  Am.  &  Eng.  R.  Cas. 
78, 83  Mo.  235. 

Where  a  promise  to  aid  a  railway  enter- 
prise is  made  to  some  one  necessarily  con- 
nected with  or  interested  in  the  work  being 
done,  for  the  benefit  of  the  company  that 
has  begun  or  is  about  to  undertake  the 
work,  then,  upon  completion  of  the  work, 
or  upon  the  performance  of  the  conditions 
upon  which  the  promise  was  made,  the  lia- 
bility of  the  promisor  becomes  complete; 
there  are, also  cases  where  expense  is  in- 
curred, or  an  obligation  created  under  the 
promise,  where  a  like  liability  would  follow. 
Stevens  v.  Corbitt,  33  Mich.  458. 

The  obligation  of  actual  payment  is  cre- 
ated by  a  subscription  to  stock,  unleu 
plainly  excluded  by  the  terms  of  the  sub- 
scription. Troy  5-  A.  R.  Co.  v.  Tibbits,  18 
Barb.    {N.  V.)    297. —  NOT    FOLLOWED    IN 

Belfast  &  M.  L.  ft.  Co.  v.  Moore.  60  Me.  561. 
The  consideration  to  sustain  a  subscrip- 
tion for  stock  IS  raised  by  inference  of  law 
from  the  subscription  itself  and  the  privi- 
leges thereby  conferred  ;  and  from  the  same 
circumstance  the  law  will  infer  a  duty  to 
pay  for  the  stock,  and  an  implied  obligation 
of  equal  force  with  an  express  contract, 
where  nothing  appears  repugnant  to  such  a 


I 


I 


I;' 

'A 
J- 

I 


744 


SUBSCRIP    lONS  TO  STOCK,  37,  a8. 


r 


II 


construction.    East  T*Hti.  &*  V.  Jt.  C«.  v. 
Gammon,  $  Snttd  (  TVmm.)  $67. 

In  order  to  ucura  the  conatruction  of  a 
railroad  over  a  certain  line  and  the  e*tab« 
liihment  of  a  depot  at  a  named  point,  a 
committee  loiicited  lubscriptions  to  the 
amount  of  $2,500;  t],3So  of  thij  was  paid  to 
the  company  in  cash  and  the  subscription 
list  given  to  it  at  the  same  time.  One  hun- 
dred and  fifty  dollars  of  the  subscriptions 
remained  unpaid,  but  the  company  gave  a 
receipt  as  for  t},Soo,  and  after  building  the 
road  and  locating  the  depot  at  the  desired 
points,  sued  for  the  $150.  Htld,  that  the 
liability  of  defcndtint  was  in  no  way  affected 
by  the  fact  that  the  other  subscribers  paid 
their  subscriptions  in  advance  of  the  time 
designated.  Defendant  did  not  withdraw 
his  promise  to  pay  the  amounts  subscribed 
until  after  the  company  had  accepted  the 
subscriptions  and  performed  its  part  of  the 
agreement.  When  this  had  been  done  de- 
fendant became  bound  and  the  subscription 
became  a  valid  contract  between  the  par- 
ties. Gulf,  C.  6*  S.  F.  h.  Co.  v.  Nttfy,  64 
Ttx.  344. 

37.  Effect  of  tincondltlounl  prom- 
ise to  pay.  -  -  Where  a  subscriber  prom- 
ises unconditionally  to  take  and  pay  for  a 
certain  number  of  shares  at  their  par  value, 
the  promise  is  binding  although  the  amount 
of  stock  has  not  been  fixed  and  the  mini- 
mum number  of  shares  named  in  the  charter 
has  not  been  subscribed  for.  Skowhegixn  &* 
A.  R.  Co.  V.  Kinsman,  32  Am,  &»  Eng.  R. 
Cat.  13,  77  Mt.  370. 

A  promise  to  pay  assessments  on  stock 
contained  in  the  book  of  subscriptions,  and 
signed  by  the  defendant,  will  bind  him,  not- 
withstanding the  charter  provides  for  a  sale 
of  the  stock  only,  in  case  of  n  failure  to  pay 
assessments  thereon.  Connecticut  <S-  /".  R, 
R.  Co.  V.  Bailey,  24  Vt.  465.  — Following 
Essex  Bridge  Co.  v.  Tuttle,  3  Vt.  393. 

38.  Afrreomciit  to  tuke  nmoiiiits 
to  promise  to  pay.  —  One  who  makes  a 
special  agreement  with  a  company  to  take 
shares  and  receive  debentures,  and  in  con- 
sequence thereof  has  his  naine  entered  in 
the  register,  which  he  confirms  and  ratifies, 
and  who  is  elected  and  acts  as  a  director,  is 
liable  as  a  registered  shareholder  for  calls. 
West  Cornwall  R.  Co.  v.  Mowatt,  15  Q.  R. 
521,  i5/«r.  !Oi,  19  L.J.  Q.B.47&.  Ex  parte 
Mowatt,  I  Drew.  247. 

Plaintiff  company  was  constituted  by 
■even  persons  signing  the   memorandum 


of  association.  Afterwards  they  all  were 
summoned  to  attend  a  meeting,  but  only 
(our  attended,  and  they  elected  three  di- 
rectors. These  three  elected  three  other 
directors.  The  three  original  director*  re- 
signed, and  afterwards  one  of  the  remaining 
directors  sent  in  his  resignation.  Defend- 
ant then  applied  for  fifty  shares.  The  two 
remaining  directors  resolved  that  fifty  shares 
should  be  allotted  to  defendant,  that  he 
should  be  appointed  a  director,  and  that  the 
resignation  of  the  retiring  director  should 
be  accepted.  Defendant  afterwards  attended 
a  meeting  of  the  directors,  confirmed  the 
allotment  to  himself,  and  joined  in  passing 
a  resolution  that  the  shares  allotted  to  him- 
self should  be  paid  up  in  full  forthwith. 
Defendant  subsequently  withdrew  his  appli- 
cation and  refused  to  pay  the  amount  of  the 
shares  allotted  to  him.  By  the  articles  of 
association  the  number  of  the  directors  was 
to  be  not  less  than  three,  and  any  casual 
vacancy  occurring  in  the  board  might  be 
filled  up  by  the  board,  and  the  continuing 
board  might  act  notwithstanding  any  va. 
cancy  in  their  body.  Held,  that  defendant 
was  liable  to  pay  the  amount  of  the  shares. 
York  Tratnways  Co.  v.  IVillows,  6  Am.  *• 
Eng,  R.  Cas,  492,  L.  R.  8  Q.  It.  D.  685. 

A  subscription  to  capital  stock  whereby 
the  subscriber  promises  to  take  a  stated 
number  of  shares,  subject  to  the  conditions, 
requirements,  liabilities,  and  benefits  of  the 
act  of  incorporation,  is  equivalent  to  an  ex- 
press promise  to  pay  for  the  stock  as  pay- 
ment shall  be  called  for  by  the  directors. 
Northern  R.  Co.  v.  Miller,  10  Barb.  {N.  Y.) 
260 —Explaining  Hiirlem  Canal  Co.  v. 
Seixas,  2  Hall  (N.  Y.)  505.  —  DISAPPROVED 
IN  Buffalo  A  N.  Y.  C.  R.  Co.  v.  Dudley,  14 
N.  Y.  336.  Distinguished  in  Seymour  v. 
Sturgess,  26  N.  Y.  134. 

But  if  it  docs  not  amount  to  such  con- 
tract, it  raises  an  implied  promise  which  is 
equally  efficacious  with  one  expressed.  Og- 
densburgh,  R.  &*  C.  R.  Co.  v.  Frost,  21  Barb. 
(.N.  Y.)  541. 

An  agreement  previous  to  incorporation 
to  take  a  number  of  shares  of  capital  stock 
creates,  if  not  an  express,  certainly  an  im- 
plied, promise  to  pay  for  the  sharcj ;  and 
this  promise  will  sustain  an  action  Dy  the 
company,  on  its  complete  incorporation,  to 
recover  the  amount  of  calls  duly  made  on 
the  stock.  Buffalo  &*  N.  Y.  C.  R.  Co.  v. 
Dudley,  14  A'.  Y.  336.  —  Dl.SAPPROviNO 
Northern  R.  Co.  v.  Miller.  10  Barb.  260, 


SUBSCRIPTIONS  TO   STOCK,  :i«>-42. 


745 


f> 


a 

i. 

n 
It 

d 

e 
o 
n 
/. 
r. 


DiSTiNOUlSHINC  Spear  v.  Crawfoni,  14 
Wend.  (N.  Y.)  30.  Rbvibwino  Hartford 
&  N.  H.  F(.  Co.  V.  Kennedy,  is  Conn.  500. 
—Applied  in  Farmers'  L.  4  T.  Co.  v.  To- 
ledo &  S.  H.  R.  Co..  54  Fed.  Rep.  7S9.  6 
U.  S.  App.  469.  4  C.  C.  A.  561.  Distin- 
guished IN  Seymour  v.  Sturgess,  36  N. 
Y.  134;  nabcocic  V.  Schuylkill  &  L.  V.  R. 
Co.,  39  N.  Y.  S.  R.  S06,  60  Hun  583.  mem.. 
15  N.  Y.  Siipp.  193. 

210.  Affreciiieiit  to  take  crentoM  no 
perMoiinl  obligation. —  Certain  parties 
•igned  n  subscription  to  stock  reciting  that 
"  we,  the  undersigned,  agree  and  bind  our- 
■elves  to  take  the  amount  of  shares  set 
■gainst  our  respective  names  "  in  the  stock 
of  a  certain  railroad  company  "  agreeably  to 
the  foregoing  conditions."  ////</,  that  the 
simple  agreement  "  to  take  "  did  not  impose 
a  personal  obligation  to  pay  for  tiic  shares  ; 
and  that  "the  foregoing  conditions"  did 
not  change  the  efTcct  of  the  agreement, 
where  they  contained  no  words  of  promise. 
£t//ast  *•  A/.  L.  If.  Co.  v.  Afoort,  60  A/e. 
561.— Following  Andover  A  M.  Turnpike 
Corp.  V.  Gould,  6  Mass.  40.  Not  follow- 
ing Troy  &  B.  R.  Co.  v.  Tibbits,  18  Barb. 
(N.  Y.)  297. 

And  a  provision  in  the  company's  charter 
purporting  to  render  subscribers  liable  for  a 
balance  remaining  unpaid  after  a  sale  of 
their  sh'^res  would  not  affect  the  binding 
force  of  the  subscription.  Btlfait  &«  At.  L. 
Jf.  Co.  V.  Afoore,  60  Afe.  561. 

40.  Obli|p»tion  \n  Hoverai,  not  Joint. 
—  The  obligation  of  each  of  several  sub- 
scribers to  stock,  where  they  all  sign  the 
•ame  subscription  agreement,  must  be  con- 
strued to  be  several  and  not  joint.  Prict  v. 
Grand  Rapids  *•  /.  R.  Co.,\%  Ind.  137. 

Stockholders  are  in  no  legal  sense  joint 
debtors  of  the  corporation.  The  obligations 
of  each  are  several,  and  entirely  uncon- 
nected with  those  of  the  other  stockholders. 
Hayne:  v.  Kent,  8  La.  Ann.  1 33. 

41.  Payment  a  •irereqiiislte  to  Ih- 
■uanoe  ofshareH.— A  subscriber  to  capi- 
tal stock  who  has  failed  to  pay  for  the  shares 
subscribed  for,  as  required  by  the  terms  of 
his  subscription,  is  properly  chargeable  with 
interest  from  the  time  of  the  default,  and 
cannot  compel  the  company  to  issue  the 
stock  until  not  only  the  principal,  but  the 
Incerest.  is  paid.  Gouidv.  Oneonta,  71  N,  V. 
198;  (iffirmitig  3  Hun  401,  6  7'.  »^  C.  43. — 
Distinguished  in  Scipio  v.  Wright,  101 
U.  S.  665. 


Plaintifl  subscribed  for  certain  shares  of 
the  capital  stuck  of  a  railroad  company  and 
paid  ten  per  cent,  of  the  amount.  There- 
after the  company  consolidated  with  de- 
fendant company,  under  an  agreement  that 
the  stockholders  of  the  former  company 
were  to  receive  consolidated  stock  in  place 
of  its  stock.  Held,  that  plaintiff  was  not  en* 
titled  to  receive  certificates  of  consolidated 
stock  until  he  had  paid  the  balance  due 
upon  his  subscription,  and  could  produce 
evidence  of  the  fact.  Babcock  v.  Schuylkill 
<5-  /-.  V.  R.  Co.,  39  N.  Y.  S.  R.  $06,  60  Hun 
583,15  A'.  Y.  Supp.  1 93 :  affirmed  in  1 33  A'.  K. 
420.  31  A'.  E.  Rep.  30,  45  A'.  }'.  S.  R.  246.— 
Distinguishing  Buffalo  &  N.  Y.  C.  K.  Co. 
7'.  Dudley,  14  N.  Y.  336. 

5.  Agreement  by  Company  to  Pay  Interest, 

42.  Validity  of  provisiona  for  the 
payment  of  iiitercMt.— Where  contribu- 
tions are  made  to  secure  the  building  of  a 
street  railroad,  and  the  regular  running  of 
cars  thereon  a  specified  number  of  daily 
trips,  the  company  receiving  such  contribu- 
tions may  stipulate  that  the  damages  for  a 
failure  to  comply  with  these  conditions  shall 
be  the  sum  contributed  and  interest  there- 
on from  the  date  of  failure.  Crown  Hill  R. 
Co.  V.  Armstrong,  39  Ind.  418. 

Such  a  stipulation  is  not  void  for  want  of 
mutuality,  or  of  consideration,  though  not 
signed  by  the  party  making  the  subscrip- 
tion ;  the  obligation  on  his  part  being  evi- 
denced by  his  promissory  note,  previously 
executed,  which  was  paid  by  him  upon  the 
execution  by  the  company  of  the  instrument 
containing  said  stipulation  ;  the  company 
having  verbally  agreed,  at  the  time  of  the 
execution  of  said  note,  that  the  maker,  who 
was  interested  in  the  maintenance  of  the 
road,  should  have  some  security  for  its  per- 
manent working ;  and  the  instrument  con- 
taining said  stipulation  purporting  to  be 
made  in  consummation  of  said  verbal  agree- 
ment. Crown  Hill  R.  Co.  v.  Armstrong,  39 
Ind.  418. 

If,  by  the  terms  of  subscription  to  stock, 
it  is  recommended  that  interest  be  paid  to 
stockholders  on  payments  for  stock,  a  sub- 
scriber cannot  resist  payment  of  his  sub- 
scription on  the  ground  that  such  interest 
has  been  paid.  Agricultural  Branch  R, 
Co.  V.  IVinc /tester,  13  Allen  (Alass.)  29. 

Where  a  charter  provides  that  a  certain 
amount  of  capital  stock  shall  be  subscribed 


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SUBSCRIPTIONS  TO  STOCK.  43-45. 


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before  any  assessments  are  made,  and  this 
number  of  shares  is  subscribed,  a  con- 
dition that  interest  should  be  paid  by  the 
corporation  on  all  sums  assessed  and  paid 
in,  from  the  time  of  payment  until  the  rail- 
road should  be  put  in  operation,  does  not 
avoid  the  subscription.  Rutland  &■*  B,  R. 
Co.  V.  Thrall,  35  Vt.  536. 

A  corporation  has  authority  to  stipulate 
that  each  stockholder  shall  be  entitled  to 
interest  on  sum'  li  *  on  stock  subscriptions 
while  its  road  is  vi  process  of  construction, 
till  it  is  completed  and  goes  into  operation, 
payable  whenever  \.h'  ivolus  earnings  shall 
enable    it    properl\  do    so.    Such    an 

arrangement  for  t  -  pivment  of  "interest 
dividends"  is  equit:;.^''.  and  just;  and  such 
payment,  made  only  oui.  of  surplus  earnings 
not  needed  for  the  payment  of  the  debts  of 
the  corporation  or  for  the  prosecution  of  its 
business,  does  not  interfere  with  the  rights 
of  creditors,  nor  contravene  any  principle  of 
public  policy,  Richardson  v.  Vermont  &* 
M.  R.  Co.,  44  Vt.  613.— Distinguished  in 
New  York,  L.  E.  &  W.  R.  Co.  v  Nickals, 
119  U.  S.  296. 

43.  Their  efTect— When  interest 
payable. — An  agreement  of  a  corpora- 
tion with  a  subscriber  for  stock  that  he 
"  shall  have  the  privilege  of  paying  in  at  any 
time  the  whole  or  any  part  of  his  subscrip- 
tion, and  shall  receive  interest  thereon  until 
the  road  goes  into  operation,"  does  not  bind 
the  corporation  to  pay  any  interest  to  him 
until  the  road  goes  into  operation.  Water- 
man  v.  Troy  «&*  G.  R.  Co.,  8  Gray  {Mass.) 
433.— Reviewed  in  Painesville  &  H.  R.  Co. 
V.  King.  17  Ohio  St.  534 :  Richardson  v.  Ver- 
mont &  M.  R.  Co..  44  Vt.  61^.— Wright  v. 
Vermont &*  M.  R.  Co.,  12  Cush.  (Mass:)  68.— 
Distinguished  in  Barnard  v.  Vermont  & 
M.  R.  Co.,  7  Allen  (Mass.)  512.  Quoted  m 
Richardson  v.  Vermont  &  M.  R.  Co.,  44 
Vt.  613. 

Where  a  company  has  received  subscrip- 
tions on  a  guaranty  that  it  would  pay  inter- 
est  on  stock  "  as  soon  as  paid,"  until  the 
road  is  finished,  interest  will  not  accrue 
until  the  stock  is  fully  paid;  and  where 
but  a  small  part  of  the  stock  had  been  paid 
by  defendant,  he  cannot,  in  a  suit  against 
him  for  the  balance,  set  up  the  nonpay- 
ment of  interest  on  his  stock  by  the  com- 
pany as  a  breach  of  condition.  Miller  ■v. 
Pittsburgh  6-  C.  R.  Co.,  40  Pa.  St.  237. 

44.  Bights  of  persons  who  sub- 
scribed previous  to  resolution  to  pay 


interest. — Where  directors,  under  the  act 
"  regulating  railroad  companies,"  pass  and 
enter  on  their  journal  a  resolution  that "  the 
treasurer  is  directed  to  allow  interest  on 
instalments  as  paid,  payable  in  stock,  and 
carry  to  the  account  of  each  stockholder 
the  interest  annually,  and  when  the  amount 
is  sufficient  to  issue  stock  certificates  in  pay- 
ment," and  actually  do  pay  such  interest 
to  persons  making  payment  of  their  stock 
subscriptions  subsequent  to  the  passage  of 
the  resolution,  such  resolution  accrues  to  the 
benefit  of  parties  who  had  paid  their  stock 
subscriptions  prior  to  the  passage  of  the 
resolution,  and  constitutes  a  binding  obli- 
gation to  pay  such  interest.  Ohio  v.  Cleve- 
land &*  T.  R.  Co.,  6  Ohio  St.  489. 

n.  ASBESBKENTS.     CALLS. 
I.  In  General,     When  Necessary  or  Proper. 

45.  Necessity  of  assessment  or  call. 

— In  a  suit  to  recover  upon  a  subscription  to 
stock  it  must  be  averred  and  proved  that 
notice  of  the  calls  was  given,  such  as  the 
charter  of  the  company  requires.  Tomlin 
V.  Tonica  &»  P.  R.  Co.,  23  ///.  429. 

A  contract  for  subscription  to  stock  re- 
cited that  the  signers  agreed  to  take  stock 
in  the  company  "  to  the  amount  of  the  num- 
ber of  shares  set  opposite  to  our  names 
respectively,  subject  always  to  the  by  laws, 
rules,  and  articles  of  incorporation  "  of  the 
company.  The  articles  provided  that  stock 
should  be  paid  for  after  500  shares  had  been 
subscribed,  and  that  ten  percent,  should  be 
payable  on  the  fifteenth  of  each  month. 
Held,  that  this  amounted  to  a  promise  to 
pay  for  the  amount  of  the  subscription ; 
and  each  subscriber  became  a  shareholder 
of  the  company ;  and  that  the  subscription 
became  due  as  stipulated  without  assess- 
ments being  made,  Waukon  &*  M.  R.  Co. 
v.  Dwyer,  49  Iowa  121. 

A  suit  will  not  lie  on  a  subscription  to 
the  stock  of  a  corporation  organized  by  vir- 
tue of  the  General  Railroad  Law,  without  a 
previous  call  made  by  the  directors  for  the 
sums  so  subscribed.  Braddock  v.  Philadel- 
phia, M.  6-  M.  R.  Co.,  16  Am.  &*  Eng.  R. 

Cos.  436.  45  ■'^-  /•  ^-  363- 

Where  the  rights  of  creditors  are  not  in 
question  an  action  will  not  lie  against  a  sub- 
scriber to  stock  to  recover  his  subscription, 
or  any  part  thereof,  until  he  is  in  default 
after  regular  calls  upon  him  pursuant  to  the 


SUBSCRIPTIONS  TO  STOCK,  46-40. 


747 


charter.    Mann  v.  Ptnta,  3  AT.  K.  415  S  ''*- 
versing  2  Sand/.  Ch.  257. 

46. isrliere  road  is  in  hands  of 

receiver.— Where  the  p-operty  of  a  corpo- 
ration has  been  placed  in  the  hands  of  a  re- 
ceiver, and  the  court  has  ordered  him  to 
proceed  to  collect  the  outstanding  assets  of 
the  company,  such  order  dispenses  with  the 
necessity  of  a  call  upon  subscribers  to  cor- 
porate  stock  for  unpaid  subscriptions. 
Armstrong  v.  Danahy,  75  Hun  405,  27  N. 
y.  Supp.  60,  56  N.  Y.  S.R.  743. 

47.  No  assessment  valid  prior  to 
crgaiilzation.  —  If  is  a  rule  of  law,  too 
well  settled  to  be  now  questioned,  that  sub* 
scribers  to  the  capital  of  a  corporation  prior 
to  its  organization  cannot  be  required  to 
pay  assessments  upon  their  shares  until  the 
company  is  authorized  by  law  to  begin  the 
prosecution  of  its  enterprise.  Fairview 
R.  Co.  V.  SpUlman,  23  Oreg.  587,  32  Pac. 
Rep.  688. 

48.  Effect  'of  condition  in  sub- 
scription on  rierht  to  make  calls.— 
Defendant  subscribed  for  stock,  payable, 
when  needed  for  the  payment  of  the  con- 
tractors for  the  construction  of  the  road,  in 
•uch  instalments  as  should  be  called  and 
required  by  the  president  and  directors  of 
the  company  from  time  to  time,  the  amount 
to  be  expended  upon  the  road  in  a  certain 
county.  Held,  that  the  president  and  di- 
rectors had  no  right  to  call  for  such  instal- 
ments until  it  became  requisite  '  pay 
contractors  for  the  construction  of  th  rond 
at  the  point  stated.  Roberts  v.  Mobile  &*  0. 
R.  Co.,  32  Miss.  373- 

49.  Necessity  that  number  of 
shares  be  definitely  fixed.— If  the  char- 
ter of  a  company  does  not  fix  the  number 
of  shares  of  the  capital  stock,  it  is  to  be 
presumed  that  the  legislature  intended  that 
the  stockholders  or  th  1  directors  should  fix 
the  number;  and  it  is  indispensable  that  the 
number  be  so  determined  before  any  assess- 
ment can  be  made  thereon.  Somerset  &*  K. 
R.  Co.  V.  Cushing,  45  Me.  524.— Distin- 
guished IN  Bucksport  &  B.  R.  Co.  v.  Buck, 
65  Me.  116.— Somerset  R.  Co.  v.  Clarke,  61 
^'-  379.— Distinguished  in  Bucksport  & 
B.  R.  Co.  V.  Buck,  65  Me.  536. 

In  such  case,  if  the  number  of  shares  so 
fixed  exceeds  the  number  actually  sub- 
scribed for  and  taken,  the  stockholders  or 
directort  may  change  the  number;  but  the 
assessment  must  be  upon  the  whole  num- 
ber.   If  the  shares  are  not  all  taken,  an  as- 


sessment upon  the  number  that  have  been 
taken  is  void.  A  subscriber  who  has  paid 
the  first  assessment  is  not  thereby  estopped 
from  setting  up  this  defense  to  a  suit  for 
the  second.  Somerset  6-  K.  R.  Co.  v.  Cush- 
irtg,  4S  Me.  S24.— Distinguishing  Kenne- 
bec &  P.  R.  Co.  V.  Jarvis,  34  Me.  360. 

It  is  not  necessary  to  fix  the  capital  stock 
to  enable  a  corporation  to  maintain  an  ac- 
tion on  the  subscription  agreement.  Bucks- 
port  &•£.  R.  Co.  v.  Buck,  6s  Me.  536,  9  Am. 
Ry.  Rep.  293. 

Where  a  charter  prescribes  the  lowest 
amount  at  which  the  company's  stock  shall 
be  fixed,  the  corporation  has  no  power  to 
assess  the  subscribers  to  its  stock  until  it 
has  fixed  the  amount  of  the  stock,  and  it 
has  been  fully  taken.  Pike  v.  Bangor  &*  C. 
S.  L.  R.  Co.,  68  Me.  445,  20  Am.  Ry. 
Rep.  407. 

Where  a  charter  provides  that  the  capital 
stock  shall  consist  of  not  more  than  a  cer- 
ain  number  of  shares,  "the  number  of 
which  shall  be  determined  from  time  to 
time  by  the  directors,"  the  directors  have  no 
power  to  levy  assessments  upon  subscribers 
for  stock  before  determining  the  whole 
number  of  shares.  Worcester  &*  N,  R.  Co. 
V.  Hinds,  8  Cush.  (Mass.)  no. 

A  corporation,  authorized  by  its  charter 
to  begin  the  construction  of  its  road  when, 
ever  a  given  number  of  shares  has  been 
subscribed  for,  can  assess  the  shares  when 
the  subscriptions  have  reached  that  num- 
ber, although  the  whole  number  of  shares 
has  not  been  determined.  Boston,  B.  &*  G. 
R.  Co.  V.  Wellington,  113  Mass.  79.— DIS- 
TINGUISHING Salem  Mill  Dam  Corp.  v. 
Ropes,  6  Pick.  (Mass.)  23 ;  Troy  AG.  R.  Co. 
V.  Newton,  8  Gray  (Mass.)  596. 

Where  a  charter  limits  the  capital  stock 
to  not  less  than  500  nor  more  than  10,000 
shares,  of  $100  each,  and  authorizes  the 
directors  to  assess  upon  500  shares  as  soon 
as  subscribed  for,  and  from  time  to  time  to 
enlarge  the  capital  up  to  the  maximum 
limit,  all  the  shares  to  be  equally  assessed, 
it  is  not  necessary  for  the  corporation  to  de- 
termine the  ultimate  amount  of  its  capital 
within  the  limit  of  the  10,000  shares  before 
proceeding  to  make  assessments  upon  the 
first  500  subscribed  for.  White  Mountains 
R.  Co.  V.  Eastman,  34  N.  H.  124. 

Nor  is  it  necessary,  in  order  to  entitle  the 
corporation  to  recover  the  assessments  so 
made,  that  notice  of  the  assessments  should 
have  been  given  to  the  governor,  accord- 


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748 


SUBSCRIPTIONS  TO  STOCK,  60.  51.J 


ing  to  the  provisions  of  the  third  clause  of 
section  2  of  N.  H.  Act  of  1846,  in  amend- 
ment of  the  law  relating  to  corporations. 
White  Mountains  Ji.  Co.  v.  Eastman,  34 
N.  H.  124. 

GO.  Stock  must  all  be  subscribed 
for  before  calls  are  made.'*'  —  Where 
the  ciiarter  or  act  of  incorporation  fixes  the 
amount  of  capital  stock  of  the  corporation, 
no  assessment  can  be  made  upon  the  shares 
of  a  stockholder  until  the  full  amount  of 
stock  is  subscribed,  unless  a  contrary  inten- 
tion appears,  expressly  or  by  implication, 
either  from  the  charter  or  the  contract 
of  subscription.  Peoria  &*  t.  I.  R-  Co. 
V.  Preston,  35  Iowa  115  -Disapprov- 
ing Schenectady  &  S.  Plank-road  Co.  v. 
Thatcher,  II  N.  Y.  102.  Distinguishing 
Rensselaer  &  W.  Plank  Road  Co.  v.  Wetsel, 
21  Barb.  (N.  Y.)  56;  Waterford  W.,  W.  & 
D.  R.  Co.  V.  Dalbiac,  4  Eng.  L.  &  Eq.  455 ; 
6  Ex.  443 ;  Lexington  &  W.  C.  R.  Co.  v. 
Chandler,  13  Mete.  (Mass.)  311;  Hamilton 
&  D.  Plank  Road  Co.  v.  Rice,  7  Barb.  157; 
Fry  V.  Lexington  &  B.  S.  R.  Co.,  2  Mete. 
(Ky.)  314;  Kennebec  &  P.  R.  Co.  v.  Jarvis, 
34  Me.  360;  Iowa&  M.  R.  Co.  v.  Perkins, 
28  Iowa  281.  —  Reviewed  in  Johnson  v. 
Kessler,  76  Iowa  411. — Alltnan  v.  Havana, 
'  Ji.  &•  E.  K.  Co.,  88  ///.  521,  21  Am.  Ry.  Rep. 
347. — Distinguished  in  Henry  v.  Cen- 
tralia  &  C.  R.  Co.,  30  Am.  &  Eng.  R.  Cas. 
273,  121  III.  264.  Overruled  in  Peoria 
&  P.  U.  R.  Co.  V.  Peoria  &  F.  R.  Co..  10 
Am.  &  Eng.  R.  Cas.  129,  105  111.  no.  Re- 
viewed AND  approved  IN  People  ex  rel. 
V.  National  Sav.  Bank,  129  111.  6\i.— Old- 
town  &*  L.  R.  Co.  v.  Veazie,  39  Me.  571. 
Lewey's  Island  R.  Co.  v.  Bollon,  48  Me.  451. 
Shurtz  v.  Schoolcraft  &*  T.  R.  R.  Co.,  9 
Mich.  269.  Monroe  v.  Ft.  Wayne,  J.  &* 
S.  R.  Co.,  28  Mick.  272,  12  Am.  Ry.  Rep. 
273.  Sedalia,  W.  Sm  S.  R.  Co.  v.  Abell,  17 
Mo.  App.  645.  —  Following  Stoneham' 
Branch  R.  Co.  v.  Gould.  2  Gray  (Mass.)  278.— 
Contoocook  Valley  R.  Co.  v.  Barker,  32  A^.  H. 
363.  Anderson  v.  Middle  &-  E.  T.  C.  R.  Co., 
52  Am.  &•  Eng.  R.  Cas.  149.  91  Tenn.  44. 
17  5.  W.  Rep.  803. 

Or  unless  the  stockholder  in  some  way 
waives  tht  provisions  of  the  charter.  New 
Hampshire  C.  R.  Co.  v.  Joknson,  30  N.  H. 
390.  —  Reviewing  Littleton  Mfg.  Co.  v. 
Parker.   14  N.   H.   543;    Central  Turnpike 

*  Non-liability  of  stockholder  where  whole 
amount  of  stock  is  not  subscribed,  see  note.  22 
Am.  &  Eno.  R.  Cas.  15. 


Corp.  V.  Valentine.  10  Pick.  (Mass.)  143.-^ 
Followed  in  Contoocook  Valley  R.  Co.  v. 
Barker.  32  N.  H.  363. — Contoocook  Valley  R, 
Co.  v.  Barker,  32  A';  H.  363.— Following 
New  Hampshire  C.  R.  Co.  v.  Johnson.  30 
N.  H.  y^.— Exposition  R.  6-  /.  Co.  v.  Canal 
St.  Exposition  R.  Co.,  42  La.  Ann.  370.  7  So. 
Rep.  627. 

By  the  charter  or  articles  of  incorporation 
of  a  company,  an  organization  and  the 
election  of  directors  and  officers  were  pro- 
vided for.  upon  $100,000  of  stock  being  sub- 
scribed, the  capital  stock  being  $1,000,000; 
and  that  such  directors  should  thereupon 
reopen  the  books  and  continue  to  receive 
subscriptions  until  the  whole  amount  of  the 
capital  stock  should  be  subscribed,  and  that 
"all  subscriptions  to  the  stock  of  said  com- 
pany shall  be  paid  at  such  times,  in  such 
amounts,  and  on  such  conditions  as  said 
directors  may  prescribe."  Held,  that  the 
latter  provision  respecting  the  times  and 
terms  of  payment  had  reference  to  the  time 
when  the  full  amount  of  the  capital  stock 
should  have  been  subscribed,  and  that  an 
assessment  upon  the  shares  of  stockholders, 
ordered  by  the  directors  to  be  made  before 
such  period,  was  unauthorized  and  invalid. 
Peoria  <S-  R.  I.  R.  Co.  v.  Preston.  35  Iowa 
1 1 S,  5  Am.  Ry.  Rep.  7. 

When  the  number  of  shares  of  stock  is 
fixed  by  charter,  an  assessment  made  before 
the  whole  number  of  shares  is  subscribed 
for  is  invalid,  although  the  remainder  of 
the  shares  be  subscribed  for  on  the  same 
day,  after  the  dissolution  of  a  meeting  of 
the  directors  at  which  the  assessment  was 
made.  Stoneham  Branch  R.  Co.  v.  Gould, 
2  Gray  (Mass.)  277.— FohhOWEV  IN  Sedalia, 
W.  &  S.  R.  Co.  V.  Abell,  17  Mo.  App.  645. 

51.  Stock  need  not  all  be  sub- 
scribed for.  —  When,  by  the  articles  of 
association  or  by  the  provisions  of  the 
statute  which  form  a  part  of  the  agree- 
ment of  the  parties  who  sign  the  articles 
of  association,  it  is  expressly  or  impliedly 
provided  that  upon  the  subscription  to  the 
capital  stock  of  any  certain  amount,  less 
than  the  whole  amount  fixed  by  the  articles 
of  association,  the  corporation  shall  have 
power  to  enter  upon  the  business  for  which 
it  was  organized,  then  a  valid  assessment 
may  be  made  when  the  less  amount  has 
been  subscribed.  Sedalia,  W.  &-  S.  R.  Co, 
V.  Adeil,  17  Mo.  App.  645.  Jewett  v.  Valley 
R.  Co.,  34  Ohio  St.  601.  21  Am.  Ry.  Rep.  21. 
Willamette  Fre^hting   Co.   v.   Stannus,  4 


I 


SUBSCRIPTIONS  TO  STOCK,  51. 


719 


Ortg:  262.— Followed  in  Astoria  &  S.  C. 
R.  Co.  V.  Hill,  20  Oreg.  177.— Astoria  &*  S. 
C.  R.  Co.  V.  Hill,  ao  Oreg.  177,  25  Pac.  Rep. 
379.—  Following  Willamette  Freighting 
Co.  V.  Stannus,  4  Oreg.  262 ;  Coyote  G.  & 
S.  Min.  Co.v.  Ruble,  8  Oreg.  2^/^.— Hanover 
/unction  &»  S.  R.  Co.  v.  Grubb,  82  Pa.  St.  36, 
1 5  Am.  Ry.  Rep.  442.  Cheraw  &*  C.  R.  Co. 
V.  Garland,  14  -S*;.  Car.  63.    Waterford,  W., 

IV.  &•  D.  R.  Co.  V.  Dalbiac,  6  Railw.  Cas. 
753,  6  Ex.  443,  20  L.  J.  Ex.  227. 

Under  Ind.  Act  of  1852,  relating  to  the 
incorporation  of  railroad  companies,  after  a 
subscription  of  $50,000  a  company  may 
make  calls  without  waiting  for  the  sub- 
scription uf  the  whole  capital  stuck  as  a 
condition  precedent  to  its  riglit  to  collect. 
Hoaglandv.  Cincinnati  &*  Ft.  IV.  R.  Co.,  18 
/nd.  452.— Quoting  Kennebec  &  P.  R.  Co. 

V.  Jarvis,  34  Me.  360. 

To  entitle  a  railroad  company  to  recover 
under  a  special  subscription  to  aid  in  the 
construction  of  its  road  through  a  certain 
county,  pay?'  !e  in  instalments  as  the  work 
progresses,  it  is  not  necessary  that  the 
whole  amount  of  the  capital  &'ock,  as  fixed 
by  the  articles  of  incorporation,  should  have 
been  subscribed.  Iowa  &*  AI.  R.  Co.  v. 
Perkins,  28  Iowa  281. 

The  liability  of  subscribers  is  governed 
by  the  terms  of  the  subscription,  and  not  by 
the  articles  of  incorporation,  and  their  sub- 
scriptions become  due  upon  the  survey, 
location,  and  progress  of  the  road,  payable 
in  instalments  as  provided  by  the  terms  of 
subscription.  Iowa  &*  M.  R.  Co.  v.  Perkins, 
28  Iowa  281. 

A  failure  on  the  part  of  plaintiff  to  show 
that  assersmerts  were  made  upon  the  stock 
by  the  board  of  directors  of  the  company, 
and  the  publication  of  notice  of  such  assess- 
ments as  provided  by  the  articles  of  incor- 
poration, would  not  prevent  a  recovery. 
The  same  rule  was  held  respecting  the  fact 
that  the  assessments  under  which  payment 
was  sought  of  the  defendant  were  not  made 
upon  all  the  stock  subscribed,  but  were  con- 
fined to  the  stock  of  the  subscribers  of  the 
county,  to  aid  the  construction  of  the  road 
through  which  the  subscriptions  were  made. 
Iowa  &*  AT.  R.  Co.  v.  Perkins,  28  Iowa  281. 

By  an  amended  charter  the  capital  stock 
of  a  company  was  to  consist  of  not  less  than 
4000  shares.  Defendant  subscribed  for  two 
shares,  and  paid  three  assessments  thereon, 
but  afterwards  refused  to  pay  further  assess- 
ments, and  bis  tharea  were  sold  for  lets 


than  the  amount  of  the  unpaid  assessments. 
Held,  that  he  was  liable  for  the  balance 
although  the  minimum  number  of  shares 
had  not  been  subscribed  for.  York  &»  C. 
R.  Co.  V.  Pratt,  40  Me.  447. 

A  charter  provided  that  the  capital  stock 
should  consist  of  not  less  than  4000  nor 
more  than  :o,ooo  shares,  and  that  the  com- 
pany might  organize  when  4000  shares  were 
subscribed,  but  that  no  contract  for  build- 
ing the  road  should  be  entered  into  until 
7000  shares  '  e  subscribed.  Held,  that  a 
subscriber  wa.  liable  after  4000  shares  had 
been  subscribed,  and  the  company  was 
organized,  and  had  voted  to  dispose  of  the 
remainder  of  the  stock,  although  no  vote 
had  been  passed  fixing  the  amount  of  the 
stock,  and  the  full  10,000  shares  had  not 
been  taken.  Penobscot  &*  K.  R.  Co.  v. 
Bartlett,  12  Gray  {Mass.)  244.— APPROVING 
Bangor  Bridge  Co.  v.  McMahon,  10  Me.  478. 

A  company  is  authorized  by  the  general 
law,  as  amended  by  Mich.  Act  of  1867,  to 
proceed  in  the  construction  of  a  division  of 
its  line  of  not  less  than  fifteen  consecutive 
miles,  and  to  collect  the  subscriptions  made 
along  the  same,  so  soon  as  the  requisite 
I6000  per  mile  is  obtained  of  subscriptions 
which  are  assessable  for  the  construction  of 
such  division,  and  oiliceks  are  duly  chosen 
and  the  division  designated;  and  such 
municipal  aid  as  should  be  voted  was  in- 
tended by  said  act  to  be  reckoned  as  a  part 
of  the  $6000  per  mile;  and  the  fact  that 
such  aid  has  since  been  held  void  by  the 
supreme  court  cannot  affect  the  construc- 
tion of  that  act.  Swartwout  v.  Mich^an 
Air  Line  R.  Co.,  24  Mich.  389,  4  Am.  Ry. 
Rep.  63.— Distinguished  in  Memphis,  K. 
&  C.  R.  Co,  V.  Thompson,  i  Am.  &  Eng. 
R.  Cas.  331,  24  Kan.  170.  Followi  'n 
Stowell  V.  Stowell,  9  Am.  &  Eng.  R.  Cas. 
598,  45  Mich.  364. 

Where  an  act  of  incorporation  in  no 
part  of  it  declares  that  the  parties  named 
as  incorporators  shall  not  have  power  to 
act  as  a  corporation  until  a  certain  amount 
of  stock  is  subscribed  for,  and  a  certain 
amount  of  capital  is  paid  in,  subscribers  to 
their  stock  can  be  compelled  to  pay  their 
subscriptions,  in  the  absence  of  an  agree- 
ment to  the  contrary,  notwithstanding  the 
whole  of  the  stock  authorized  to  be  issued 
has  not  been  subscribed  for.  Lynch  v. 
Eastern,  L.  F.  &*  M.  R.  Co.,  12  Am.  6* 
Eng;.  R.  Cas.  652,  57  IVu.  430,  1$  N.  IV. 
Rep-  743.  825. 


I 


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SUBSCRIPTIONS  TO   STOCK,  62-55. 


S2.  TVaiver  of  condition  that  stuck 
must  all  be  subscribed.*— The  implied 
condition  that  all  the  stock  shall  be  taken 
before  calls  are  made  may  be  waived,  or 
expressly  provided  against.  It  is  waived, 
although  it  had  originally  attached,  where 
subscribers  consent  to  pay  their  subscript 
tions  before  the  entire  capital  stock  is 
taken  in  order  that  a  portion  of  the  pro- 
posed  road  may  be  put  in  course  of  con- 
struction, and  this  is  accordingly  done  upon 
the  faith  of  their  unconditional  promise  to 
pay.  Anderson  v.  Middle  6f  E.  T.  C.  Jt. 
Co.,  sa  Am.  &»  Etig.  R.  Cas.  149,  91  Tenn. 
44, 17  5'.  W.  Rep.  803. 

Subscribers  thus  waiving  this  implied 
condition  and  consenting  to  pay  their  sub- 
scriptions unconditionally  are  estopped,  after 
the  work  has  been  contracted  for  and  per- 
formed upon  the  faith  of  their  promise,  to 
contest  their  liability  on  the  grounc'  that 
the  enterprise  as  a  whole  has  failed  for 
want  of  adequate  funds,  and  that  their 
expectations  have  thus  been  wholly  disap- 
pointed. Anderson  v.  Middle  &*  E.  T.  C.  R. 
Co.,  5a  Am.  &*  Eng.  R.  Cas.  149,  91  Tenn. 
44,  17  5.  W.  Rep.  803. 

63.  Assessments  on  stock  Ailly 
paid  up.— Corporations  formed  and  exist- 
ing under  the  laws  of  California  may  levy 
and  collect  assessments  for  corporate  pur- 
poses on  shares  of  stock  upon  which  the 
subscriptions  have  been  fully  paid.  Santa 
Crua  R.  Co.  v.  Spreckles,  9  Am.  &*  Eng.  R. 
Cas.  679, 6s  Cal.  193,  3  Pac.  Rep,  661,  803. 

2.  By  Whom  Made  or  Levied. 

64.  Directors— Minority  rule.— Di- 
rectors authorized  to  exercise  all  the  pow- 
ers of  the  company,  except  as  to  matters 
directed  to  be  transacted  by  a  general  meet- 
ing, have  power  to  make  calls.  Ambergate 
N.&*B.&*  E.  J.  R.  Co.  V.  Mitchell,  4  Ex. 
540,  6  Railw,  Cas.  235,  19  L.J.  Ex.  89. 

The  number  and  qualifications  of  directors 
fixed  by  the  charter  must  be  adhered  to,  in 
order  to  make  calls  valid ;  but  if  payments 
are  made  by  any  stockholder  on  calls 
issued  by  such  or  similar  directors,  such 
payments  will  be  construed  to  show  acqui- 
escence in  their  conduct  and  authority, 
past  and  future,  and  the  stockholder  so  ac- 
quiescing cannot  afterwards  object.  Macon 
6-  A.  R.  Co.  V.  VasoH,  57  Ga.  314. 

•Sec  alio/«;/,  72. 


Where  the  action  is  to  recover  an  assess- 
ment upon  stock,  the  defendant  may  prove 
that  the  call  purporting  to  have  been  made 
by  the  board  of  directors  was  made  at  b 
meeting  at  which  a  majority  was  not  pres- 
ent, and  that  the  order  has  not  subsequently 
been  ratified  by  the  whole  board.  Price 
v.  Grand  Rapids  6-  /.  R.  Co.,  13  Ind.  58.— 
Followed  in  Cowley  v.  Grand  Rapids  & 
I.  R.  Co.,  13  Ind.  61 :  Hamilton  v.  Grand 
Rapids  &  I.  R.  Co.,  13  Ind.  347. 

Assessments  on  capital  stock  must  be 
made  by  the  directors ;  and  an  assessment 
made  by  an  individual  appointed  by  the 
directors  to  do  so  is  void,  where  it  does  not 
appear  that  it  war  afterwards  ratified  by  the 
directors.  Pih  t.  Bangor  &*  C.  S.  L.  R. 
Co.,  68  Me.  44S.  .20  Am.  Ry.  Rep.  407. 

Oregon  Code,  §  3225,  provides  that  "  from 
the  first  meeting  of  the  directors  the  powers 
vested  in  the  corporation  are  exercised  by 
them,  or  by  their  officers  or  agents  under 
their  direction,  except  as  otherwise  provided 
in  this  chapter."  Held,  that  it  is  the  duty 
of  the  board  of  directors  to  make  calls  upon 
stock  from  and  after  their  first  meeting. 
Buddy.  Multnomah  St.  R.  Co.,  ij  Oreg.  413, 
15  Pac.  Rep.  659. 

66.  Discretion  of  directors  as  to 
calls.  —  Stock  subscribed  was  payable  in 
such  instalments  as  might  be  called  for  or 
required  by  the  directors  of  the  company, 
and  at  such  times  and  in  such  manner  as 
they  might  direct.  The  statute  authorized 
the  directors  to  require  payments  from  sub- 
scribers at  such  times  and  in  such  propor- 
tions and  on  such  conditions  as  they  should 
see  fit.  Held,  that  the  directors  might  re- 
quire the  whole  subscription  to  be  paid  at 
one  time,  or  might  divide  it  into  such  in- 
stalments as  might  seem  to  them  proper. 
Haun  v.  Mulberry  &*/.  Gravel  Road  Co., 
33  /nd.  103. 

The  necessity  of  the  "  call "  is  not  open  to 
question  by  the  stockholders.  The  de- 
termination of  that  question  is  for  the  board 
of  directors.  Budd  v.  Multnomah  St.  R. 
Co.,  15  Oreg.  413,  IS  Pac.  Rep.  059. 

A  provision  in  a  charter  authorizing  the 
directors  to  require  payment  of  subscrip- 
tions to  stock  at  such  times  and  in  such 
amounts  as  they  shall  deem  fit  does  not 
prohibit  the  company  from  taking  a  bond 
secured  by  mortgage  in  payment.  Such 
provision  is  designed  for  the  benefit  and 
protection  of  such  subscribers  as  may  avail 
themselves  of  it,  and  leaves  the  company  to 


mm 


SUBSCRIPTIONS  TO  STOCK,  56-61. 


761 


make  special  contracts  with  otheri.     IVest- 
em  Sank  v.  Tallman,  17  Wis.  530. 

66.  Stockholders.  —  Where  assess- 
ments upon  stock  are  levied  by  the  stock- 
lioiders  by  virtue  of  a  by-law  framed  and 
adopted  by  the  stockholders,  a  stockholder 
who  assisted  in  framing  the  by-law  and 
gave  his  voice  for  hi  adoption  is  estopped 
from  questioning  tlie  legality  of  the  assess- 
ments. Willamette  Freighting  Co.  v.  Stan- 
nus,  4  Oreg.  262. 

67.  Treasurer.  —  Calls  made  by  the 
treasurer  under  general  authority  given  by 
the  board  are  valid  although  the  resolu- 
tio>)s  do  not  specify  the  amount  of  each 
call.  Hays  v.  Pittsburgh  6-  5.  R.  Co.,  38 
Pa.  St.  81. 

68.  When  the  court  will  make  a 
call. — Under  a  charter  it  was  the  duty  of 
the  president  and  directors  to  make  calls 
for  instatme;its  of  unpaid  stock.  Held,  that, 
on  a  failure  of  the  officers  to  do  so,  a  court 
of  equity,  at  the  suit  of  a  creditor,  could 
make  the  Calls,  which  would  bind  stock- 
holders though  they  were  not  parties  to  the 
suit.  Hawkins  v.  Glenn,  131  U.  S.  319,  9 
Sup.  Ct.  Rep.  739. 

3.  Form,  Requisites,  and  Validity. 

60.  lu  geueral.—  Calls  may  be  made 
payable  in  advance.  North  Western  R.  Co. 
V.  M' Michael,  6  Ex.  273,  6  Railw.  Cas.  495, 
2G  L.  /.  Ex.  233.  Ambergate  N.  &>  B.  &* 
E.J.  R.  Co.  V.  Norcliffe,  6  Ex.  629. 

Where  the  directors  of  a  company  pass  a 
resolution  on  the  13th  of  March  that  a  call 
shall  be  made  on  th«t  30th  of  March,  to  be 
paid  on  the  ist  of  May,  such  call  is  not  in- 
valid because  the  resolution  is  prospective. 
Sheffield,  A.-under-L.  &*  M.  R,  Co.  v.  Wood- 
cock, 7  M.&*  W.  574.  Great  North  of  Eng- 
land R.  Co.  v.  Biddulph,  7  M.  6*  W.  243, 
2  Railw.  Cas.  401. 

Calls  are  not  illegal  by  reason  of  the  shares 
having  been  altered  from  £2^  to  ;£2o  after 
the  formation  of  the  company.  Ambergate 
N.&'  B.&'  E.  J.  R.  Co.  V.  Mitchell,  4  Ex. 
540,  6  Railw.  Cas.  235,  19  L.  J.  Ex.  89. 

A  member  of  the  committee  of  a  company 
authorized  to  make  calls  is  not  estopped 
from  setting  up  the  irregularity  of  certain 
calls  by  the  fact  that  he  joined  in  making 
them,  or  by  his  payment  of  a  part  of  them. 
Stratford  &*  M.  R.  Co.  v.  Stratton,  2  B.  &* 
Ad.  519. 

Where  money  is  subscribed  to  be  paid  for 
in  a  •pecial  mode  on  call,  it  must  be  shown 


that  the  call  was  made  by  adequate  author- 
ity, and  it  must  conform  to  the  terms  of  the 
subscription.  New  Jersey  Midland  R.  Co,  v. 
Strait,  35  N.  J.  L.  322. 

All  that  is  necessary  to  constitute  a  valid 
call  is  a  resolution  by  tlie  board  of  directors 
which  shows  a  clear  intent  to  render  due 
and  payable  a  part  or  the  whole  of  unpaid 
subscriptions.  Budd  v.  Multnomah  St,  R, 
Co.,  IS  Oreg.  413,  15  Pac.  Rep.  659. 

60.  Must  be  periodical,  not  all  at 
one  time.— Where  a  railway  act  author- 
izes the  company  to  make  calls  provided 
that  no  such  calls  shall  be  made  at  an  inter- 
val of  less  than  two  months  from  each 
other,  several  calls  made  all  at  one  time  are 
irregular.  Stratford  &*  M.  R.  Co.  v.  Strat- 
ton, 2  B.^*  Ad.  519. 

Where  several  calls  are  made  by  a  com- 
pany all  at  one  time,  and  are  on  that  ac- 
count irregular,  they  are  not  ratified  by  the 
mention  of  them  in  a  subsequent  act  of  par- 
liament reciting  that  the  capital  had  not 
been  subscribed,  that  the  company  had  pro- 
ceeded with  the  works,  incurred  debts,  etc., 
and  that  a  certain  sum  was  due  from  de- 
faulters in  the  payment  of  calls,  and  provid- 
ing for  carrying  on  the  works  and  for  mak- 
ing further  calls.  Stratford  &•  M.  R.  Co. 
V.  Stratton,  2  B.&*  Ad.  C19. 

In  order  to  recover  subscriptions  to  stock 
which  is  to  be  called  for  in  proportions,  it 
must  appear  that  the  instalments  were 
called  for  periodically,  and  not  that  the  as- 
sessments therefor  were  all  made  at  one 
time,  without  notice  of  previous  assess- 
ments, spongier  v.  Indiana  &*  I.  C.  R.  Co., 
21  ///.  276. 

61.  Intervals  between  calls.— Where 
the  special  act  of  a  company  requires  an  in- 
terval of  at  least  three  months  between 
successive  calls,  the  directors  may  on  the 
nth  of  January  pass  a  resolution  for  a  call 
to  be  paid  on  the  15th  of  February,  and  on 
the  8th  of  May  pass  a  resolution  for  a  call 
to  be  paid  on  the  19th  of  June.  It  is  not 
necessary  that  three  months  elapse  between 
the  date  when  a  call  is  payable  and  tiie  date 
of  the  next  call.  Ambergate  N.&'B.  A'  E. 
J.  R.  Co.  V.  Mitchell,  4  Ex.  540,  6  Railw. 
C«w.  23s,  19  L.J.  Ex.  89. 

The  Railways  Clauses  Consolidation  Act, 
14  &  15  Vict.  c.  SI,  provides  that  no  call 
shall  be  made  "  at  a  less  interval  thrn  two 
months  from  the  previous  call."  Held,  that 
calls  made  on  the  ist  of  September,  ist  of 
November,  ist  of  January,  etc.,  were  bad. 


to" 

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n2 


SUBSCRIPTIONS  TO  STOCK,  62-66. 


If  ■:4( 
I*' 


The  first  day  is  to  be  excluded,  as  its  inclu- 
sion leaves  one  day  less  than  two  months 
between  calls.  Buffalo,  B.  &>  G,  Ji.  Co.  v. 
Parke,  12  U.  C.  Q.  B.  607. 

The  calls  upon  stock  in  a  company  can- 
not be  made  at  less  intervals  than  two 
months.  Where  directors  at  one  meeting 
make  several  culls,  payable  at  intervals  of 
two  months  from  each  other,  a  stockholder 
who  has  paid  the  first  call  thus  made  and 
then  assigned  his  share  is  not  responsible 
for  the  subsequent  «.u!)s  thus  illegally  made. 
Moore  v.  McLaren,  1 1  U.  C.  C.  P.  534. 

The  insolvency  of  the  assignee  of  the 
stock  is  no  ground  for  vitiating  the  assign- 
ment, the  only  condition  precedent  for  tlie 
valid  assignment  of  stock  being  the  pay- 
ment of  all  calls.     Moore  v.  McLaren,  1 1  U. 

c.  c.  P.  534. 

62.  Amount  of  call.— Where  stock  is 
subscribed  for  on  condition  that  not  more 
than  five  dollars  on  a  share  shall  be  called 
for  at  any  one  time,  an  order  of  the  board 
of  directors  calling  for  two  or  more  assess- 
ments at  the  same  time  is  not  void,  where 
not  more  than  five  dollars  is  required  to  be 
paid  at  one  time.  Penobscot  &»  K.  R.  Co,  v. 
Dunn,  39  Me.  587. 

If  the  charter  provides  that  no  assess- 
ments shall  be  laid  upon  any  share  to  a 
greater  amount  than  $ioo,  in  the  whole, 
any  assessment  beyond  that  sum  is  void. 
Lewey's  Island  R.  Co.  v.  Bolton,  48  Me.  451. 

Directors  were  authorized  to  make  such 
equal  assessments  from  time  to  time  on  all 
the  shares  in  the  corporation  as  they  might 
deem  expedient  and  necessary  in  the  execu- 
tion and  progress  of  the  work;  provided 
"that  no  assessments  shall  be  laid  upon 
any  share  in  said  corporation  of  a  greater 
amount  than  |ioo  in  the  whole  on  such 
share;  and  if  a  greater  amount  of  money 
shall  be  necessary  to  complete  said  road,  it 
shall  be  raised  by  creating  new  shares." 
Held,  that  the  charter  limited  the  amount 
of  all  the  assessments  to  $100  on  a  share, 
and  that  assessments  beyond  that  sum, 
made  by  the  directors  for  the  payment  of 
the  debts  of  the  corporation,  were  illegal. 
Great  Falls  6*  C.  R.   Co.  v.   Copp,  38  N. 

H.  124- 

63.  Equality  of  assessment.  —  The 

act  of  incorporation  of  plaintiff  company 
authorized  the  directors  to  make  such  equal 
assessments,  from  time  to  time,  on  all  the 
shares  as  they  might  deem  necessary  and 
expedient.    The  directors  in  making  the 


first  assessment  expressly  excluded  1350,000 
of  stock  subscribed  in  the  United  States. 
Held,  (1)  that  this  was  not  an  equal  assess- 
ment, and  was  therefore  bad ;  (2)  that  the 
act  (30  Vict.  c.  12)  which  authorized  the 
directors  to  restrict  tlie  assessment  to  one 
half  the  subscribed  stock  would  not  justify 
the  assessment  altogether  excluding  any 
portion  of  the  stock,  but  at  most  allowed 
them  to  make  an  equal  assessment  on  all 
the  stock  to  that  extent;  (3)  that  this  de« 
feet  was  not  cured  by  32  Vict.  c.  54,  and 
the  first  assessment  was  therefore  illegal. 
European  &*  N.  A.  R.  Co.  v.  McLeod,  16 
New  Drun.  3. 

Nine  other  assessments  were  made  on  the 
defendant's  stock,  none  of  which  being  paid 
a  notice  was  given,  under  the  32  Vict.  c. 
S4,  which  included  all  the  assessments,  and 
a  sale  was  made,  after  which  defendant  was 
sued  for  the  residue  of  the  calls.  Held,  that 
the  fact  of  the  first  assessment  being  un- 
equal did  not  vitiat:  the  sale,  and  defendant 
was  liable  for  the  deficiency  remaining  on 
the  nine  assessments,  after  deducting  the 
amount  realized  from  tne  sale  of  his  shares, 
with  interest  and  expenses.  European  &* 
N.  A.  R.  Co.  V.  McLeod,  16  New  Brun,  3. 

64.  Sufficiency  and  eflfect.— A  reso- 
lution of  directors  making  calls  on  shares  to 
a  certain  amount  is,  in  the  absence  of  proof 
of  bad  faith,  conclusive  evidence  that  the 
company  requires  the  money.  Odessa  Tram- 
ways Co.  V.  Mendel,  L.  R.  8  Ch.  D.  235,  47 
L.  J.  Ch.  D.  505,  26  W.  R.  887,  38  L.  T. 
731 ;  affirming  37  L.  T.  275. 

A  resolution  of  the  board  of  directors  re- 
quiring stockholders  to  pay  an  instalment 
of  ten  per  cent,  every  thirty  days  on  sub- 
scriptions until  the  whole  is  paid,  and  that 
due  notice  thereof  be  given,  is  admissible  in 
evidence  to  show  a  call  for  payment  of  an 
instalment  in  thirty  days,  and  one  every 
thirty  days  thereafter,  Heaston  v.  Cincin- 
nati &•  Ft.  IV.  R.  Co.,  16  Ind.  275. 

65.  Recording.  —  An  omission  to  re- 
cord a  call  for  a  particular  instalment  is 
supplied  by  the  record  of  a  call  for  all  other 
unpaid  instalments.  Hays  v.  Pittsburg  ^ 
S.  R.  Co.,  38  Pa,  St.  81. 

4.  Notice. 

66.  Necessity.  —  Where  no  notice  of 
assessments  and  calls  is  required  by  the 
charter,  it  is  not  an  indispensable  requisite 
of  a  suit  to  collect  the  stock  subscriptiont. 


SUBSCRIPTIONS   TO  STOCK,  67. 


753 


Eppei  V.  Miishsippi,  G.  Cf  T.  R.  Co.,  35  Ala. 
33.    Wilson  V.  Wills  Valley  Ji.  Co.,  33  Ga.  466. 

No  riglit  of  action  accrues  for  the  recov- 
ery of  assessments  upon  stock  from  a  stock- 
holder, until  notice  has  been  given  to  him 
of  such  assessments.  Alabama  &•  F.  Ji.  Co. 
V.  Rowley,  9  Fla.  508. 

Where  a  subscription  is  made  to  the  stock 
of  a  railroad  to  be  paid  on  calls  or  assess- 
ments to  be  made  by  the  directors,  tlic  sub- 
scriber is  entitled  to  notice  fixing  the  amount 
and  time  of  payment  of  assessments.  Wtar 
V.  Jacksonville  &*  S.  R.  Co.,  -:4  ///.  593. 

Where  stock  is  to  be  paid  "  in  such  man- 
ner, and  in  such  proportion,  and  at  such 
times  "  as  the  company  shall  direct,  personal 
notice  of  a  call  for  stock  is  not  requisite. 
It  is  not  necessary  to  give  in  evidence  the 
book  containing  subscriptions  to  the  stock. 
Fisher  v.  Evansville  &•  C.  R.  Co.,  7  Ind.  407. 
—Approved  in  Pacific  R.  Co.  v.  Seely,  45 

Mo.  212. 

The  terms  of  payment  contained  in  the 
resolutions  subscribed  were  that  one  dollar 
be  paid  in  hand  on  each  share,  at  the  time 
of  subscribing,  and  that  ten  per  cent,  on 
each  share  be  paid  every  sixty  days  after 
the  work  should  be  put  under  contract. 
The  work  was  put  under  contract  in  1850; 
but  there  was  no  evidence  that  defendant 
had  notice  of  that  fact,  nor  that  any  call 
had  been  made  for  the  payment  of  instal- 
ments, or  payment  demanded,  though  the 
declaration  alleged  such  demand.  Held, 
that  such  notice  was  not  necessary.  Breed- 
love  V.  Martinsville  &*  F.  R.  Co.,  12  Ind,  1 14. 
—Reviewing  Ross  v.  Lafayette  &  I.  R.  Co., 
6  Ind.  298. 

The  general  railroad  law  does  require 
notice,  or  a  personal  demand,  btfore  pro- 
ceeding to  forfeit  the  stock,  but  not  before 
suit  to  recover  instalments.  Subscribers 
must  take  notice  of  the  acts  of  directors,  as 
to  calls.  Hcaston  v.  Cincinnati  &•  Ft.  IV. 
R.  Co.,  16  Ind.  275.  Smit/t  v.  Indiana  &>  I. 
R.  Co.,  12  Ind.  61. 

Where  a  charter  requires  notice  as  a  con- 
dition precedent  to  suits  for  instalments  of 
stock  subscriptions,  and  there  is  no  waiver 
of  the  notice,  it  must  be  given  as  required. 
Heaston  v.  Cincinnati  St*  Ft.  W,  R.  Co.,  16 
Ind.  27s. 

I  Gav.  &  H.  Ind.  St.  507,  §  8,  authorizing 
notice  to  be  given  of  calls  for  payment  by 
instalments  of  stock  subscriptions,  only  ap- 
plies to  subscriptions  in  money.  Ohio,  1. 6- 
/.  R.  Co.  V.  Cramer,  23  Ind.  490. 
7  D.  R.  D.— 48 


Notice  of  calls  is  only  necessary  for  the 
purpose  of  authorizing  a  forfeiture  of  the 
stock.  It  is  not  required  to  support  an  ac- 
tion upon  a  subscription  which  specifies  no 
condition  nor  time  of  payment.  The  Gen- 
eral Railroad  Act  of  1850,  §  7,  provides  that 
directors  may  require  stock  paid  "  in  such 
nnnner  and  in  such  instalments  as  they 
may  deem  proper,"  but  expressly  requires 
notice  to  be  given  before  declaring  stock 
forfeited  for  more  payment.  Lake  Ontario, 
A.  <S-  N.  V  R.  Co.  V.  Mason,  i5  N.  Y.  451. 

Under  Pa.  General  Railroad  Law  of  1849, 
before  ?uit  can  be  brought  for  a  subscrip- 
tion, notice  of  the  call  therefor  mu3t  be 
shown.  AlcCarty  v.  Selinsgrove  Ss^  N.  B.  R. 
Co.,  87  Pa.  St.  332.— Distinguishing  Gray 
v.  Monongahela  Nav.  Co.,  2  Watts  &  S.  (Pa.) 
162;  Grubb  V.  Mahoning  Nav.  Co.,  14  Pa. 
St.  306. 

The  time  and  place  for  payment  of  calls 
need  not  be  specified  in  the  resolution  by 
the  directors  making  them,  but  the  directors 
must  fix  a  time  and  place,  notice  of  which 
must  be  given  to  the  shareholders,  allowing 
twenty-one  days  for  payment.  Newry  &•  E. 
R.  Co.  V.  Edmunds,  2  Ex.  119,  S  Railw.  Cas. 
275,  XT  L.J.  Ex.  102. 

67.  Sufficieucy,  generally.  —  In  as- 
sumpsit to  recover  assessments  upon  stock, 
notice  of  the  assessment  as  averred  must  be 
specific,  and  not  general.  Mississippi,  O. 
&*  R.  R.  R.  Co.  V.  Gaster,  22  Ark.  361.— 
Following  Mississippi,  O.  &  R.  R.  R.  Co. 
V.  Gaster,  20  Ark.  455. 

If  the  stockholder  be  a  resident  of  a  town 
or  city  the  construction  and  operation  of 
the  road  through  such  town  or  city  would 
ordinarily  be  sufficient  notice.  New  Albany 
&*  S.  R.  Co.  V.  McCormick,  10  Ind.  499. 

Where  a  corporation  is  limited  to  fifteen 
per  cent,  calls  per  annum,  and  ten  per  cent, 
lias  already  been  called,  it  is  immaterial  that 
the  last  call  did  not  specify  the  amount, 
time,  or  place  of  payment,  the  accompany- 
ing notice  pointing  out  the  time  and  place. 
Andrews  v.  Ohio  &*  M.  R.  Co.,  14  Ind.  169. 

A  notice  requiring  payments  to  be  made 
to  A  B,  residing  in  the  city  of  Troy,  is 
prima  facie  a  sufficient  compliance  with 
the  requirement  of  the  statute  that  the 
place  of  payment  shall  be  designated  in  the 
notice.  Troy  T.  &*  R.  Co.  v.  M'Chesney,  21 
Wend.  (N.  Y.)  296. 

A  company  gave  notice  to  a  subscriber 
that  it  would  move  for  a  judgment  against 
him  for  the  sum  of  $300  with  interest  on 


\ 


u  . 


rbi 


SUBSCRIPTIONS  TO   STOCK,  08-70. 


S.i  ii  ■ 


$150,  part  thereof,  from  October  i,  1871,  and 
on  $150,  the  residue  thereof,  from  March  3, 
1873,  till  paid,  it  being  for  the  first  and 
second  quotas  of  tiiirty  per  cent,  on  five 
shares  of  stock  of  said  company  called  for 
by  the  board  of  directors  of  said  company. 
IfeM,  that  the  notice  sufBciently  alleged  and 
described  a  contract  of  subscription.  Stuart 
V.  Valley  Ji.  Co.,  32  Gratt.  {Va.)  146. 

An  act  amending  an  act  to  incorporate  a 
railroad  provided  that  "  to  entitle  the  com- 
pany  to  recover  against  any  subscriber  or 
stockholder,  a  notice  shull  be  given  by  the 
president  of  such  company "  stating  the 
amount  cf  stock  called  for,  such  notice  to  be 
published.  The  president  published  a  notice 
beginning  :  "  I  hereby  give  notice  that  the 
following  calls  for  payment  of  the  capital 
stock  to  the  E.  &  N.  A.  railway  is  [sic]  hereby 
made."  Held,  that  the  notice  was  of  a  call 
made  by  the  president,  while  the  statute 
contemplated  a  call  made  by  the  directors, 
and  only  notice  thereof  given  by  the  presi- 
dent ;  that  it  was  not  a  compliance  with  the 
law,  and  therefore  not  binding  on  stock- 
holders. European  &-N.  A.  Ji.  Co,  v.  Dunn, 
16  New  Brun.  320. 

08.  Effect.  —  The  time  when  a  resolu- 
tion to  call  is  passed,  and  not  the  time  when 
notice  of  the  call  is  given,  is  the  time  when 
the  call  is  made.  Reg.  v.  Londonderry  &*  C. 
Ji.  Co.,  13  Q.  B.  998,  6  Railw,  Cas.  i,  i^Jur, 
^yi,\ZL.J.Q.B.iM. 

Where  directors  pass  a  resolution  for  a 
call,  specifying  the  amount  of  the  call  and 
the  day  of  payment,  but  not  the  place  where 
or  the  person  to  whom  payment  is  to  be 
made,  such  call  is  not  invalid,  provided  a 
notice  thereof  subsequently  inserted  in  the 
local  newspapers,  according  to  the  direc- 
tions of  the  company's  act,  specifies  all 
those  matters.  Sheffield,  A.-under-L.  &*  M. 
R.  Co.  V.  Woodcock,  7  M.  Gr*  IV.  574.  Great 
North  of  England  R.  Co.  v.  Bidduiph,  7  M. 
&»  fV,  243,  2  Railw.  Cas.  401. 

Assessments,  as  understood  in  subscrip- 
tion contracts,  mean  a  rating  by  the  board 
of  directors,  by  instalments,  of  which  nclice 
is  to  be  given.  After  notice  has  been  given, 
and  the  period  for  payment  has  passed,  an 
action  will  lie  for  the  aggregate  amount. 
Spanglerv.  Indiana  &* I.  C.  R.  Co., 21  III.  276. 

09.  Personal  n  o  t  i  c  e .— Generally, 
when  the  law  requires  notice  to  be  given  to 
a  party,  but  does  not  specify  the  mode  in 
which  it  shall  be  given,  personal  notice 
must  be  givea  and  proved,  before  any  liabil- 


ity can  be  fixed  on  him  ;  but  this  principle 
does  not  apply  to  the  case  of  a  defaulting 
subscriber  to  the  capital  stock  of  a  company, 
when  such  personal  notice  is  not  required 
by  the  charter  of  the  company,  nor  by  the 
terms  of  the  subscription.  Grubbs  v.  Vicks- 
burg  &•  B.  Ji.  Co.,  50  Ala.  398. 

Where  a  charter  prescribes  that "  payment 
of  the  shares  of  the  capital  stock  sliall  be 
made  in  such  sums  and  at  such  pci  iuds  as 
shall  be  fixed  by  the  board  of  directors, 
provided,  that  sixty  days'  notice  be  given  of 
each  call,  published  in  at  least  two  news- 
papers in  South  Arkansas,  and  one  in  the 
city  of  Little  Kock,"  the  notice  thus  pre- 
scribed is  a  condition  precedent  to  the  right 
of  action  by  the  company,  but  the  mode  of 
giving  notice  is  directory,  and  personal 
notice  is  sufficient.  Mississippi,  O.  &*  R.  R. 
R.  Co.  V.  Gaster,  20  Ark.  455.— Followed 
IN  Mississippi,  O.  &  R.  R.  R.  Co.  v.  Wells, 
20  Ark.  462;  Mississippi,  O.  &  R.  R.  R. 
Co.  V.  Chesnutt,  20  Ark.  461. 

The  declaration  in  such  case  set  forth  the 
days  on  which  the  assessments  sued  for 
were  made,  alleging  that  defendant  then 
had  notice,  and  was  requested  to  make  pay- 
ment. Held,  on  demurrer,  that  the  court 
would  look  to  the  time  of  filing  the  declara- 
tion to  ascertain  whether  the  sixty  days  had 
expired.  Mississippi,  O.  &•  R,  R.  R.  Co.  v. 
Gaster,  20  Ark.  455. 

70.  Publication.— Under  the  London 
and  Brighton  Railway  Act  (i  Vict.  c.  119, 
§§  146,  148),  providing  for  the  method  of 
making  calls,  the  resolution  need  not 
specify  a  time  or  place  of  payment,  but 
these  must  appear  in  the  advertisement. 
London  &•  B.  Ji.  Co.  v.  Fairclough,  3  Scott 
N.  R.  68,  2  M.S^  G.  674,  2  Jiailw.  Cas.  544. 

Where  no  method  of  giving  notice  of 
calls  for  payment  upon  corporate  stock  is 
fixed  by  the  charter  or  a  by-law,  publication 
in  a  newspaper  in  the  county  where  the  com- 
pany has  its  principal  office  is  not  sufficient 
as  to  subscribers  living  in  other  counties. 
Alabama  &*  F.  R.  Co.  v.  Rowley,  9  Fla.  508. 

When  the  charter  expressly  requires  no- 
tice to  be  given  in  certain  newspapers,  and 
for  a  certain  number  of  days,  before  the 
calls  for  instalments  shall  be  valid,  the  com- 
pany  must  show  a  compliance  with  such 
condition  precedent  before  a  recovery  can 
be  had  on  such  calls.  Macon  &*  A.  R.  Co. 
V.  Vason,  57  Ga.  314. 

When  the  charter  of  a  railway  company 
requires  notice  of  calls  on  subscribers  to  be 


SUBSCRIPTIONS  TO   STOCK,  71-73. 


765 


publisher!  for  thirty  days  in  two  newspapers, 
the  cuurl  is  inclined  to  hold  that  sucli  pub- 
lication cannot  be  dispensed  with  by  giving 
actual  notice  to  the  subscribers.  Tomlin  v. 
Tonka  &*  P.  Ji.  Co..  23  ///.  429. 

A  charter  required  that  notice  of  the 
demand  for  the  payment  of  instalments 
on  subscriptions  should  be  published  in  a 
newspaper  at  least  three  weeks  prior  to  the 
day  the  instalments  became  due.  In  a  suit 
to  recover  instalments,  a  copy  of  the  publi- 
cation made  in  the  newspaper,  accompanied 
by  the  publisher's  oath  that  it  had  been  so 
published  for  three  weeks,  was  produced  in 
evidence.  Objection  was  made  that  the 
three  successive  papers  in  which  the  notice 
was  published  were  not  produced.  Held, 
that  the  evidence  was  prima  facie  suflicient. 
Unthank  v.  Henry  County  Turnpike  Co.,  6 
Ind.  125. 

To  constitute  legal  notice  of  calls  fur 
stock  instalments,  under  Indiana  General 
Railroad  Law,  the  same  notice,  fixing  the 
same  time  for  payment,  must  be  published 
in  a  newspaper  in  each  county  in  which  one 
is  published  through  which  the  railroad 
runs.  Heaston  v.  Cincinnati  &*  Ft,  W,  K. 
Co.,  16  Ind.  275 

Defendant,  by  his  subscription  to  stock, 
promised  to  pay  the  several  assessments 
thereon  as  they  should  from  time  to  time  be 
ordered,  according  to  the  act  of  incorpora- 
tion, which  provided  that  the  directors 
should  give  notice  of  the  several  assess- 
ments, and  of  the  time  and  place  of  their 
payment,  in  certain  newspapers.  Held,  that 
it  was  a  condition  of  defendant's  liability 
that  such  notice  should  be  given  as  required 
by  the  charter,  but  that  such  condition 
might  be  waived  by  defendant.  Rutland 
&-  B.  Ji.  Co.  V.  Thrall,  35  Vt.  536. 

71.  Mailingr  notice.— Proof  that  a  no- 
tice of  a  call  by  the  directors  for  the  sub- 
scriptions was  duly  mailed  and  addressed  to 
a  subscriber  makes  a  prima  facie  case  of 
notice  of  such  call.  Braddock  v.  Phila- 
delphia, M,  6f*  M.  R.  Co.,  16  Am.  6-  Eng.  R. 
Cas.  436,  45  N.f.  L.  363. 

72.  Waiver.*  —  When  notified  that  an 
instalment  of  stock  was  due,  a  subscriber 
replied  that  he  was  not  a  stockholder  and 
that  the  notice  must  be  an  error.  Held, 
that  this  was  a  waiver  of  further  notice,  as 
provided  for  in  Pa.  Act  of  Feb.  19,  1849, 
and  that  other  instalments  and  the  penalty 

*Seeal8oaM/;,  S2* 


of  one  per  cent,  a  month  could  be  recovered 
witlioui  notice.  Cass  v.  Pittsburg,  V.  &*  C. 
R.  Co.,  80  Pa.  St.  31. 

5.  Calls  after  Transfer. 

73.    Liability   of  transferor.— 

Where  the  company  incorporated  and  the 
undertaking  authorized  by  act  of  parlia- 
ment arc  in  effect  the  same  company  and 
undertaking  to  which  a  person  has  sub- 
scribed a  certain  number  of  shares,  the 
directors  are  entitled  to  place  the  subscrib- 
er's name  on  the  register  of  shareholders, 
although,  before  the  act  was  passed,  the  sub- 
scriber, without  the  knowledge  of  the  com* 
pany,  had  sold  his  shares.  Nixon  v.  BrowH' 
low,  i  H.  &^  N.  686,  4  fur.  N.  S.  878,  27 
L.  f.  E.V.  508. 

Where  a  person  has  signed  the  subscriber's 
agreement  for  the  organization  of  a  com- 
pany, and  has  been  allotted  scrip,  which  he 
lias  sold  before  the  act  of  parliament  author- 
izing the  construction  of  the  railway  was 
obtained,  his  name  having  been  entered  on 
the  register  of  shareholders,  though  such 
entry  was  without  his  consent,  he  is  liable 
for  calls  until  the  name  of  the  purchaser  of 
the  scrip  is  inserted  in  the  register.  Mid- 
land G.  W.  R,  Co.  V.  Gordon,  16  M.  6-  W. 
804,  1 1  fur.  440,  16  L.  f.  Ex.  165. 

A  provision  in  a  charter  that  "  no  trans- 
fer of  such  stock  shall  exempt  the  party 
transferring  it  from  the  obligation  of  paying 
instalments  afterwards  called  for  until  fifty 
per  cent,  on  each  share  shall  have  been 
paid "  exempts  from  liability  only  those 
who  have  transferred  their  shares  after  the 
payment  of  fifty  per  cent,  on  each  share,  be- 
fore the  instalments  have  matured,  and  pay- 
ment has  been  demanded.  Vichsburg,  S.  &• 
■T.  R.  Co,  V.  McKeen,  14  La.  Ann.  735. 

A  transfer  of  stock  by  a  subscriber  made 
for  the  purpose  of  escaping  the  liability 
upon  it,  without  the  consent  of  the  com- 
pany, is  not  a  valid  defense  to  an  action 
against  him  by  the  company  for  the  pur- 
chase money  of  the  stock  subscribed.  Ever- 
hart  V.  West  Chester  &>  P.  R.  Co.,  28  Pa. 
St.  339.— Followed  in  GrafI  v.  Pittsburgh 
&  S.  R.  Co.,  31  Pa.  St.  489. 

An  original  subscriber  to  the  stock  of  a 
company  incorporated  subject  to  the  Pa. 
General  Railroad  Act  of  February  19,  1849, 
is  not  discharged  from  liability  for  the 
amount  remaining  unpaid  upon  such  stock 
by  transferring  it  to  another,  whether  the 
transfer  is  made  in  good  faith  or  not.  Pitts- 


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SUBSCRIPTIONS  TO   STOCK,  74-77. 


turgA  &•  C.  R.  Co,  V.  Clarkt,  29  Pa.  St.  146. 
— Followed  in  Graf!  v.  Pittsburgh  &  S.  R. 
Co.,  31  Pa.  St.  489. 

A  subicriptioii  to  the  stock  of  a  railroad 
company  creates  a  debt  against  the  sub- 
scriber from  wiiich  he  cannot  relieve  him- 
self by  an  assignment  or  transfer  made 
without  the  sanction  of  the  directors. 
Graffs.  PitUbuviih  6-  S.  R.  Co.,  31  Pa.  St, 
489.— Following  Pittsburgh  &  C.  R.  Co. 
V.  Clarke,  29  Pa.  146;  Everliart  v.  Philadel- 
phia &  W.  C.  R.  Co..  28  Pa.  St.  339.  -Fol- 
lowed IN  Robinson  v,  Pittsburgh  &  C.  R. 
Co.,  32  Pa.  St.  334. 

74.  — of  transferee.— In  order  to 
show,  in  an  action  for  calls,  that  defendant 
is  a  proprietor  under  a  deed  of  transfer  of 
shares,  it  is  not  necessary  to  prove  the  entry 
in  its  books,  by  the  clerk  of  the  company,  of 
a  memorial  of  the  transr:r,  as  is  required  by 
the  company's  act,  but  the  seller  of  shares 
is  released  from  liability  for  future  calls. 
London  6*  B,  R.  Co,  v.  Fairclough,  2  M.  &» 
G.  674,  3  Scott  N.  R.  68,  2  Kailw.  Cas.  544. 

Under  8  &  9  Vict.  c.  16  the  name  of  a 
transferee  of  scrip  certificates  of  shares 
must  be  entered  on  the  sealed  register  of 
shareholders  at  the  time  when  a  call  is 
made,  in  order  to  hold  him  liable  for  such 
calls.  Newry  &■*  E.  H.  Co.  v.  Edmunds,  2 
Ex.  119,  5  Railvt.  Cas.  275,  Xi  Jur.  101,  17 
L.J,  Ex.  102. 

A  stockholder  who  derives  his  stock  by  a 
transfer  from  the  original  subscriber,  and 
who  receives  a  new  certificate  from  the 
company,  is  personally  liable  for  instal- 
ments called  for  after  the  transfer.  Hart- 
ford &*  N.  H.  R.  Co,  V.  Doorman,  1 2  Conn. 
530.— Distinguished  in  Seymour  v.  Siur- 
gess,  26  N.  Y.  134.  Reviewed  in  Small  7/. 
Herkimer  M.  &  H.  Co.,  2  N.  Y.  330. 

75.  Assignment  of  the  call.— A  rail- 
way company  may  assign  as  security  for  a 
debt  a  call  which  it  has  made,  although  the 
call  has  not  become  payable.  Pickering  v. 
Ilfracombt  R.  Co.,  37  L,J,  C,  P.  118.  L.  R, 
3  C.  P.  235,  16  W,  R.  458,  17  Z.  T.  650. 

ni.  ACTIONS  TO  XHFOBOE  8UBSCSIFTI0NS. 

I.  Election  of  Remedies.     Forms  of  Action 
Allowed, 

70.  In  general.*  —  A  proceeding  hy 
notice  and  motion,  on  the  part  of  a  com-' 

*  Corporation's  right  of  action  against  delin- 

Suent  subscribers,  see  very  full  note,  81  Am. 
>BC.  398. 


pany,  against  a  delinquent  stockholder,  it 
"a  suit"  within  the  meaning  of  Ala.  Code, 
§  2398,  and  security  for  costs  must  be  given 
when  the  notice  is  placed  for  service  in  the 
iiands  of  the  sheriff.  Alabama  &*  T.  R,  R. 
Co.  V.  Harris,  25  Ala.  232. 

77.  Benietly  by  forl'citiiro  ciimii- 
lativo  only.— An  ac.ion  will  lie  to  recover 
a  subscription  for  stock  in  a  corporation, 
although  the  charter  declares  that,  upon 
the  failure  of  the  subscriber  to  pay  any 
requisition  of  the  directors  thereon,  his 
stock  "shall  be  forfeited  to  the  company, 
with  the  instalments  which  have  been  paid." 
The  charter  remedy  is  only  cumulative. 
Selma  &*  T.  R,  Co.  v.  Tipton,  5  Ala.  787.— 
Following  Beene  v.  Cahawba  &  M.  R.  Co., 
3  Ala.  660.— Disapproved  in  New  Hamp- 
shire C.  R.  Co.  V.  Johnson,  30  N.  H.  390. — 
Beene  v.  Cahawba  &*  M.  R,  Co.,  3  Ala.  660. 
—  Not  following  Worcester  Turnpike 
Corp.  t/.  Willard,  5  Mass.  80;  Andovcr&  M. 
Turnpike  Corp.  v.  Gould,  6  Mass.  40;  New 
Bedford  &  B.  Turnpike  Corp.  v.  Adams,  8 
Mass.  138.— Disapproved  in  New  Hamp- 
shire C.  R.  Co.  V,  Johnson,  30  N.  II.  390. 
Followed  in  Carlisle  v.  Cahawba  &  M.  R. 
Co., 4  Ala.  70;  Selma  &T.R.  Co.  t/.  Tipton,  5 
Ala.  787.  Reviewed  in  Greenville  &C.  R. 
Co.  V,  Cathcart,  4  Rich.  (So.  Car.)  89. — 
Mann  v.  Cooke,  20  Conn.  178.  —  Distin- 
guished in  Seymour  v.  Sturgess,  26  N.  Y. 
i^^.— White  Mountains  R.  Co.  \.  Eastman, 
34  N,  H.  124.  Boston,  B.  &*  G.  R.  Co.  v. 
IVellitigton,  1 1 3  Mass,  79.  Freeman  v.  Win- 
Chester,  18  Miss.  577.  Troy  &-  Ji.  R.  Co.  v. 
Kerr,  17  Barb.  (N,  Y.)  581.— Explained 
IN  Ogdensburgh,  R.  &  C.  R.  Co.  v.  Frost, 
21  Barb.  s\^.—  Troy&*B.  R.  Co.  v.  Tibbits, 
18  Barb.iN.  Y.)  297.  Ogdensburgh,  R.  &* 
C.  R,  Co.  V.  Frost,  21  Batb.  (N.  Y.)  541.— 
Following  Northern  R.  Co.  v.  Miller,  10 
Barb.  269.— Buffalo  &-  N.  Y.  C.  R.  Co.  v. 
Dudley,  14  N.  Y.  336.  —  Following  Sche- 
nectady &  S.  Plank-road  Co.  v,  Thatcher, 
u  N.  Y.  \o2.— Greenville  &'  C.  R,  Co.  v. 
Cathcart,  4  liich.  (So.  Car.)  89.— Reviewing 
Beene  v.  Cahawba  &  M.  R.  Co.,  3  Ala.  660. 

A  charter  provision  authorizing  the 
directors  to  exact  a  forfeiture  of  the  stock 
and  previous  payments,  as  a  penalty  for 
non-payment  of  the  instalments,  does  net, 
before  any  forfeiture  has  been  declared,  im- 
pair the  remedy  of  the  directors  to  enforce 
payment  by  action  at  common  law.  North- 
em  R,  Co,  v.  Miller,  10  Barb.  {N.  F.)  260.— 
Disapproved  in  New  Hampshire  C.  R.  Co. 


SUBSCRIPTIONS  TO   STOCK,  78-81. 


in 


V.  Johnion,  30  N.  H.  390.  Followed  in 
Ogdensburgh,  R.  &  C.  R.  Co.  v.  Frost,  3i 
Barb.  541. 

Where  the  power  to  require  payment  from 
stockholders  is  vested  in  a  board  of  direct- 
ors, an  action  will  not  lie  to  recover  irstal- 
ments  unless  all  the  prerequisites  of  the 
charter  have  been  complied  with.  Battet  v. 
j4//om  6^  S.  M.  Co.,  13  ///.  504. 

78.  AsHumpHlt.  —  Although  a  charter 
authorizes  the  sale  of  stock  of  the  subscriber 
for  the  non-payment  of  calls  made  thereon, 
yet  an  action  of  assumpsit  will  lie  upon  h! 
subscription,  which  is  a  promise  to  pay. 
Carlisle  V.  Cahawba&»  M.  Ji.  Co, ,^  Ala.  70. 
—  Following  Becne  v.  C.ihawba  &  M.  R. 
Co.,  3  Ala.  660.— Explained  in  Selma  & 
T.  R.  Co.  V.  Tipton.  5  Ala.  yij.—Peake  v. 
Wabaih  R.  Co.,  18  ///.  88.  Kennebec  6-  P. 
H.  Co.v.Jarvis,  34  Me.  360.— Explaining 
Portland,  S.  &  P.  R.  Co.  v.  Graham,  11 
Mete.  (Mass.)  1.— Distinguished  in  Peoria 
&  R.  I.  R.  Co.  V.  Preston,  35  Iowa  115; 
York  &  C.  R.  Co.  v.  Pratt,  40  Me.  447-— 
Hart/or d  &*  N.  H.  Ji.  Co.  v.  Kennedy,  1 2 
Conn,  499.— Distinguished  in  Kennebec 
&  P.  R.  Co.  V,  Kendall,  31  Me.  470;  Sey- 
mour V,  Sturgess,  26  N.  Y.  134.  Followed 
IN  Northern  R.  Co.  v.  Miller,  10  Barb.  (N. 
Y.)  260.  Reviewed  in  Small  v,  Herkimer 
M.  &  H.  Co.,  2  N.  Y.  330:  Buffalo  4  N.  Y. 
C.  R.  Co.  7/.  Dudley,  14  N.  Y.  3:^6.— Bavins- 
ton  V,  Pittsburgh  &*  S,  R.  Co.,  34  Pa,  St.  358. 

Defendant,  with  others,  signed  a  writing 
promising  to  pay  to  a  railroad  company  the 
sum  of  fifty  dollars  for  every  share  of  stock 
set  opposite  their  names.  A  verdict  was 
taken  for  plaintiff  for  the  value  of  shares  sub- 
scribed, subject  to  the  opinion  of  the  court, 
upon  a  statement  of  facts,  with  an  agree- 
ment that  the  court  might  make  such  in- 
ferences from  the  facts  as  a  jury  might.  At 
the  time  of  the  subscription,  it  was  admitted 
by  the  statement  that  the  committee  who 
obtained  it  represented  to  defendant  that 
T.  W.  Canal  stock  would  be  taken  at  par 
(or  any  subscriptions  to  the  railroad  com- 
pany. Defendant  resided  in  Maryland,  and 
was  ready  to  pay  in  canal  stock.  Held,  that 
an  action  for  money  had  and  received  could 
not  be  maintained.  Swatara  R,  Co,  v. 
Brune,6  Gill  {Md.)  \t . 

70.  Debt. —  The  City  of  Toronto  and 
Lake  Huron  railroad  company  has,  under 
8  Vict.  c.  83,  amending  the  original  act  6 
Will.  IV.  c.  5,  creating  the  company,  a 
right  to  sue  in  debt  one  of  the  original 


stockholders  for  an  instalment  due  upon 
stock  originally  subscribed  anJ  called  in  by 
the  directors  appointed  under  the  original 
act  of  incorporation.  Toronto  &*  L.  H,  R. 
Co,  V.  Crookshank,  4  U.  C.  Q.  B,  309.— Dis- 
tinguished IN  Grand  Junction  R.  Co.  v. 
Peterborough  County,  6  Ont.  App.  339. 
Followed  in  Fraserv.  Hickman,  13  U.  C. 
r  p.  584 ;  Port  Dover  &  L.  H.  R.  Co.  v. 
Gr<  \ ,  36  U.  C.  Q.  B.  425. 


2.  Jurisdiction. 


Tender, 

Suit. 


Demand    be/ore 


80,  .Tui'iHdiction.'*'  —  An  action  for 
call;^  i.<ade  by  an  Irish  railway  company  can 
be  maintained  only  in  the  courts  in  Dublin, 
where  the  company's  act  authorizes  it  to 
sue  fur  calls  in  such  courts.  Dundalk 
Western  R.  Co.  v.  Tapster,  i  G,  &•  D.  657. 
I  Q.  B,  667,  5  Jur.  699,  2  linilw.  Cos.  586. 

Where  a  suit  for  a  subscription  is  against 
an  administrator,  the  common  pleas  courts 
of  Indiana  have  jurisdiction,  though  the 
amount  sued  for  exceeds  $1000.  Fieete  v. 
Indiana  6*  /.  C,  R,  Co.,  8  Ind,  460. 

81.  Tender  of  ccrtiflcuteN.  —  It  is 
not  necessary  for  a  company  to  show  that 
it  has  issued  or  offered  to  issue  certificates 
of  stock  as  a  condition  precedent  to  a 
right  of  recovery  on  a  subscription.  A  sub- 
scription for  stock  does  not  stand  on  the 
same  footing  as  a  contract  of  purchase,  so 
that  the  company,  like  the  vendor,  must 
offer  to  deliver  before  demanding  the  price. 
Whenever  the  subscriber  pays,  he  is  the 
owner  of  stock  in  the  company.  It  is  the 
payment  that  makes  him  a  stockholder,  not 
the  certificate.  The  certificate  is  only  the 
evidence  of  his  right.  He  is  a  full  stock- 
holder, with  all  the  rights  of  one,  if  the 
certificate  is  not  issued  at  all.  Fulgatn  v. 
Macon  &*  B,  R,  Co,,  44  Ga,  597.  Chandler 
v.  Northern  Cross  R,  Co,,  18  ///.  190.  New 
Albany  &*  S.  R.  Co.  v.  McCormick,  10  Ind. 
499.  —  Quoted  in  Slipher  v.  Earhart,  83 
Ind.  173. —  Vawter  v.  Ohio  &^  M.  R,  Co,,  14 
Ind.  174.  Heaston  v.  Cincinnati  &*  Ft.  IV. 
R.  Co.,  16  Ind,  275.  IVebb  v.  Baltimore  6- 
E,  S.  R,  Co.,  54  Am.  6-  Eng.  R.  Cas.  202, 
77  Md.  92,  26  Atl,  Rep.  \iy— Astoria  &*  S. 
C.  R,  Co.  v.  J/ill,  20  Oreg,  177,  25  Pac.  Rep. 
379.— Distinguishing  Bobbins  v.  St.  Paul, 
S.  &  T.  F.  R.  Co.,  22  Minn.  286. 


*  Equitable  jurisdiciion  to  compel  payment  of 
unpaid  subscriptions  to  stock,  or  to  make  calls 
thereon,  see  note,  3  Am.  St.  Ref.  810. 


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SUBSCRIPTIONS  TO  STOCK,  82-84. 


A  party  gave  to  a  company  hii  promise 
sory  note  for  $500,  payable  with  interest  on 
January  i,  1883,  and  containing  a  condition 
that  if  a  certain  railroad  should  be  con- 
structed so  that  cars  might  be  run  between 
certain  points  on  or  before  January  i,  1882, 
it  should  be  paid,  and  five  shares  of  the 
capital  stock  of  the  company  should  be 
issued  to  the  maker,  otherwise  the  note 
should  be  void.  Held,  that  this  was  only  a 
contract  of  subscription  to  the  stock,  and 
not  one  for  the  purchase  of  shares,  and  that 
a  tender  of  the  stock  was  not  a  condition 
precedent  to  a  right  of  action  on  the  note. 
Wemp/t  V.  St.  Louis,  J.  &*  S.  R.  Co.,  30 
Am.  ff  Eng.  R.  Cas.  246,  120  ///.  196,  1 1  A''. 
E.  Rip.  906,  9  West  Rep.  159. 

Where  subscription  is  made  to  the  stock 
of  a  corporation,  no  action  can  be  main- 
tained to  recover  the  total  instalments  wit  i- 
out  a  tender  of  the  certificates  of  stock. 
Hedge  V.  Gibson,  7  Am.  6*  Eng.  R.  Cas.  69, 
58  Iowa  656,  12  N.  W.  Rep.  713. 

Where  subscriptions  to  stock  are  made 
to  be  paid  in  instalments,  and  certificates  of 
stock  are  to  be  issued  for  the  several  instal- 
ments, a  readiness  and  willingness  to  issue 
the  certificates  at  the  time  payment  is  to 
be  made  is  all  that  can  be  required.  James 
V.  Cincinnati,  H.  6-  D.  R,  Co.,  2  Disney 
(Ohio)  261. 

82.  Demand  before  suit.  —  By  the 
by-law  of  a  company  it  was  required  that 
all  the  stockholders  who  should  fail  or 
refuse  to  pay  up  the  instalments  then 
called  in,  or  which  might  be  called  in  by  a 
certain  date,  should  be  sued  for  the  full 
amount  of  their  subscriptions.  Defendant 
was  sued  as  a  stockholder,  but  was  presi- 
dent of  the  company  and  present  at  the 
time  of  the  adoption  of  the  by-law  in  ques- 
tion. Hetd,  that  a  demand  of  payment  of 
his  subscription  prior  to  the  suit  against 
him  was  not  necessary.  Winter  v.  Mus- 
cogee R.  Co.,  1 1  Ga.  438. 

In  an  action  on  a  note  given  upon  a  sub- 
scription to  stock,  defendant  pleaded  that 
no  demand  had  been  made  of  the  amount 
of  the  stock  subscribed.  Held,  that  the  com- 
pany was  under  no  obligation  to  make  such 
demand.     Goodrich  v.  Reynolds,  31  ///.  490. 

Where  the  time  of  payment  is  fixed  by 
the  contract  of  subscription,  no  demand 
before  suit  is  necessary.  New  Albany  &*  S. 
R.  Co.  v.  Pickens,  5  Ind.  247. 

A  subscription  to  stock  contained  a  prO' 
vision  that  it  should  be  paid  in  cash  at  such 


times  and  places  as  should  thereafter  be 
specified  by  the  directors  of  the  company, 
and  should  be  applied  to  the  construction 
of  the  road.  Held:  (i)  that  the  subscrip- 
tion was  not  payable  until  the  directors,  at 
a  regular  meeting,  fixed  the  time  and  place 
of  payment ;  (2)  that  it  was  not  necessary 
to  give  notice  to  the  subscriber  of  the  time 
and  place  of  payment.  Ross  v.  Lafayette  6* 
/.  R.  Co.,  6  Ind.  297.  —  Distinguished  in 
Ohio,  I.  &  I.  R.  Co.  V.  Cramer,  23  Ind.  490. 
Reviewed  in  Breedlove  v.  Martinsville  & 
F.  R.Co..  I2lnd.  114. 

By  the  terms  of  subscription,  stock  was 
payable  at  such  times  and  in  such  sums  as 
the  board  of  directors  should,  from  time  to 
time,  require,  but  no  assessment  was  to  ex- 
ceed 10  per  cent,  of  the  subscription,  and 
assessments  were  not  to  be  laid  oftenerthan 
once  in  sixty  days.  Held,  that  no  personal 
demand  of  payment  of  instalments  was  nec- 
essary before  suit ;  and  that  it  was  no  objec- 
tion that  the  assessments  upon  different 
subscribers  were  not  uniform  in  amount,  so 
that  they  did  not  exceed  10  per  cent.  John' 
son  V.  Crawfordsville,  F.,  K.  &•'  Ft.  W.  R. 
Co.,  II  Ind.  280. 

A  contract  to  pay  for  stock  in  instalments 
as  assessed  is  a  contract  to  pay  them  on 
demand,  and  the  bringing  of  a  suit  is  a  suffi- 
cient demand.  Smith  v.  Indiana  &*  I.  R. 
Co.,  12  Ind.  61. 

Where  a  subscription  is  made  payable  in 
work  and  materials,  and  not  in  instalments, 
the  company  cannot  require  payment  in 
instalments  by  resolution  of  the  board  of 
directors.  Ohio,  I.  &*  I.  R.  Co.  v.  Cramer, 
23  Ind.  490. 

A  corporation  may  bring  assumpsit  for 
assessments  on  stock,  but  notice  and  de- 
mand art  necessary.  Essex  Bridge  Co.  v. 
Tuttle,  2  Vt.  393.— Followed  in  Connecti- 
cut &  P.  R.  R.  Co.  V.  Bailey.  24  Vt.465. 

3.  Parties. 

83.  In  general. — One  corporation  can- 
not maintain  an  action  upon  a  subscription 
or  promise  made  to  another,  however  iden- 
tical the  object  sought  by  both,  or  the  par- 
ties composing  them.  Thrasher  v.  Pik* 
County  R.  Co.,  25  ///.  393. 

84.  Party  for  whose  benefit  snb- 
scription  was  made.  —  Defendant  and 
others  signed  a  writing  reciting  that  they 
were  desirous  of  procuring  the  extension  of 
a  certain  railroad  to  a  certain  place,  and 


SUBSCRIPTIONS  TO   STOCK,  85-88. 


769 


that  a  development  company  proposed  to 
construct  the  road  on  condition  that  the 
subscribers  would  procure  a  right  of  way 
and  pay  to  the  company  $20,000  when  the 
road  was  completed ;  and  each  agreed  "  in 
consideration  of  the  premises"  to  pay  the 
sum  set  opposite  his  name.  Held,  that  the 
contract  was  for  the  benetit  of  the  develop- 
ment company,  and  as  the  money  when  re- 
covered would  belong  to  it,  it  was  the  real 
party  in  interest,  and  the  proper  one  to  sue 
on  the  contract.  Western  Development  Co. 
V.  Emery,  tx  Cal.  611. 

An  action  for  the  instalments  due  on  sub- 
scriptions to  stock,  made  to  commissioners 
named  in  the  charter,  is  properly  brought  in 
the  name  of  the  company  after  its  organiza- 
tion, the  contract  being  with  the  commis- 
sioners as  agents,  and  for  the  benefit  of  the 
corporation.  Delaware  &*  A.R.  Co,  v.  Irick, 
ilN.J.  L.  321. 

86.  Successor  company,  or  as- 
signee of  subscription.— Where  a  com- 
pany, having  a  claim  for  unpaid  subscrip- 
tion to  stock,  transfers  the  same  by  its 
authorized  agent,  the  purchaser  will  be  pro- 
tected in  equity,  and  his  right  to  the  pro- 
ceeds of  the  claim  will  not  be  affected  by 
the  fact  that  there  may  not  have  been  a 
formal  written  assignment  thereof.  Morris 
V.  Cheney,  51  ///.  451. 

Defendant  subscribed  a  certain  sum  as  a 
donation  to  aid  a  railroad,  upon  condition 
that  the  road  should  be  built  between  cer- 
tain points  and  through  certain  towns.  The 
party  receiving  the  subscription  abandoned 
the  construction  of  the  road,  and  assigned 
the  subscription  to  a  railroad  company, 
which  substantially  complied  with  the  con- 
ditions of  the  subscription.  Held,  that  the 
assignee  could  maintain  an  action  for  the 
amount  of  the  subscription.  Smith  v.  Hoi- 
lett,  34  ^"d.  519. 

Where  the  promise  is  to  an  existing  com- 
pany, its  successors  or  assigns,  the  comple- 
tion of  the  road  by  the  successor,  to  whom 
had  been  assigned  all  franchises  and  prop- 
erty, including  such  su  icription,  will  enable 
the  successor  to  enforc  .  the  promise  in  its 
own  name ;  the  building  and  opening  of  the 
road  constitute  tlie  essence  of  the  agreement. 
Michigan  Midland  &*  C.  R.  Co.  v.  Bacon,  33 
Mich.  466. 

8G.  Original  subscriber  may  call 
his  vendee  In  warranty.— Where  prop- 
erty encumbered  with  a  mortgage  to  secure 
the  subscription  of  a  shareholder  to  the 


capital  stock  of  a  corporation  is  sold  with 
shares  of  stock,  for  a  certain  price,  and  with- 
out guaranty  against  the  mortgage,  the  pur- 
chaser is  liable  to  the  original  stockholder, 
who,  when  called  on  for  payment  of  the 
subscription,  may  call  in  warranty  his  ven- 
dee, although  there  had  never  been  any 
transfer  of  the  stock  on  the  books  of  the 
company.  Clinton  &*  P,  H.  R.  Co,  v.  Eason, 
14  La.  Ann.  828. 

4.  Pleading. 

87.  Declaration  or  complaint* 
generally. — A  declaration  in  an  action  by 
a  company  for  calls  may  be  good,  although 
not  conformable  to  the  form  for  a  declara- 
tion given  in  the  statute.  East  Lancashire 
R.  Co.  V.  Croxton,  5  Ex.  287,  6  Railw.  Cas. 
214,  I  L.,  M.  6-  P.  298,  19  L.  J.  Ex.  313. 
Midland  G.  IV.  R.  Co.  v.  Evans,  4  Ex.  649, 
6  Railw.  Cas.  205,  7  D.  &*  L.  203,  19  L.  J, 
Ex.  118.  Newport,  A.  &»  H.  R.  Co.  v. 
Hawes,  3  Ex.  476. 

A  complaint  in  an  action  by  the  mem- 
bers of  a  "  railroad  committee,"  appointed 
by  residents  along  the  line  of  a  proposed 
railway  to  raise  funds  by  subscription  to 
secure  a  right  of  way  and  depot  grounds, 
alleging  the  facts  connected  with  their  ap- 
pointment as  such  committee,  and  showing 
that  one  of  their  number,  who  was  their 
authorized  agent,  had  secured  subscriptions 
from  many  residents  along  the  road,  and 
that  at  his  instance  defendant  had  sub- 
scribed an  amount  specified,  in  satisfaction 
of  which  he  had  executed  two  notes  set  out 
in  the  complaint,  wiiich  were  payable  to  the 
order  of  their  agent,  that  no  part  of  either 
of  the  notes  had  been  paid,  and  that  plain- 
tiffs had  purchased  various  rights  of  way 
and  depot  grounds,  for  which  they  had  paid 
more  than  the  amount  of  defendant's  sub- 
scription, relying  thereupon,  sufficiently 
states  a  cause  of  action  as  against  a  general 
demurrer.  Judson  v.  Gage,  91  Cal.  304,  Xf 
Pac.  Rep.  676. 

88.  Averments  as  to  incorporation 
and  organization.— In  a  suit  against  a 
stockholder  for  assessments,  which  could 
only  be  made  by  the  board  of  directors,  un 
der  tiie  charter,  averments  that  "  the  corpo- 
ration was  organized,"  and  that  "  the  board 
of  directors  of  said  corporation  made  ps- 
sessments,"  are  sufficient  averments  of  the 
existence  of  the  board  of  directors.  MiS' 
si5sif>pi,  O.  &*  R.  R.  R.  Co.  v.  Gaster,  20  Ark, 


760 


SUBSCRIPTIONS  TO   STOCK,  89-91. 


;  •  (  ,?• 


Wm 


455.— Followed  in  Mississippi,  O.  &  R.  R. 
R.  Co.  V.  Gaster,  22  Ark.  361 ;  Mississippi, 
O.  &  R.  R.  R.  Co.  V.  Turrentine,  21  Arlc.  445. 

An  averment  that  plaintiff  was,  and  still 
is,  a  body  corporate,  is  sufficient  in  an  ac- 
tion to  recover  subscriptions  of  stock  to  a 
railway  company,  especially  where  the  decla- 
tion  is  demuk  red  to.  Spangler  v.  Indiana 
&*I.  C.  R.  Co..  21  ///.  276. 

89.  Avernieut»  as  to  defendant's 
subscription.— A  declaration  in  an  ac- 
tion by  a  company  for  calls  is  good  after 
verdict,  although  it  should  have  alleged  a 
subscription  by  deed  and  failed  to  do  so. 
Great  North  of  England  li.  Co.v.Bidduiph, 
y  M.&*  W.  243, 2  Railw.  Cas.  401. 

A  declaration  in  a  suit  to  enforce  pay- 
ment of  a  subscription  to  stock  need  not 
aver  compliance  with  a  provision  of  the 
charter  requiring  each  subscriber  to  pay  ten 
per  cent,  at  the  time  of  his  subscription. 
If  such  payment  was  made,  it  is  matter  of 
defense ;  but  the  mere  fact  of  a  failure  to 
pay  will  not  release  the  subscriber.  Illinois 
River  R.  Co,  v.  Zimtner,  20  III.  654. 

A  railroad  was  authorized  to  be  built  by 
divisions,  and  in  such  event  the  charter 
made  it  lawfu'  10  take  subscriptions  for 
either  of  the  divisions  or  for  the  whole  road. 
A  count  to  recover  on  a  subscription  de- 
scribed it  as  a  general  subscription,  instead 
of  one  to  a  division,  but  failed  to  show  a 
division  of  the  road  by  a  by-law,  and  the 
call  shown  was  to  subscribers  to  a  division. 
Held,  that  no  recovery  could  be  had.  Tom- 
lin  V.  Tonica  &-  P.  R.  Co.,  23  ///.  429. 

Where  a  complaint  in  a  suit  upon  a  sub- 
scription to  stock  makes  no  reference  to  any 
written  contract  of  subscription,  and  does 
not  aver  any  assessment  or  call  by  the  di- 
rectors, the  complamt  does  not  state  a  good 
cause  of  action.  McClasky  v.  Grand  Rap- 
ids &*  I,  R,  Co.,  16  Ind.  96. 

An  averment  In  a  declaration  that  defend- 
ant subscribed  for  certain  shares  of  the  capi- 
tal stock  of  plaintiff  company,  "according 
to  the  statute  incorporating  the  company," 
will  be  held  on  general  demurrer  to  mean 
that  he  had  done  everything  required  by 
the  charter  in  order  to  become  a  subscriber. 
Fiserv.  Mississippi &»  T.  R.  Co.,  32  Miss.  359. 

In  an  action  against  a  stockholder  to  re- 
cover the  amount  of  his  subscription,  a 
.omplaint  alleging  that  he  had  agreed  to 
take  a  certain  number  of  shares  which  had 
been  allotted  to  him,  and  that  various  calls 
bad  been  duly  made  on  such  shares  in  ac- 


cordance with  the  company's  act  of  incor- 
poration "  whereby  the  said  defendant  be- 
came liable  to  pay  to  the  said  plaintiff  the 
sum  of,"  etc.,  enumerating  the  sums  due  on 
each  call,  and  then  alleging  the  lapse  of  the 
time  for  payment  fixed  by  the  various  calls 
and  defendant's  refusal  to  pay,  is  good  in 
form.    £i(falo  fi-  N.  Y.  C.  R.  Co.  v.  Dudley, 

14  Jv.  K336. 

The  charter  of  a  company  permitted  sub- 
scriptions in  labor,  materials,  or  land,  as 
well  as  in  money.  In  an  action  by  the  cor- 
poration to  recover  a  stock  subscription, 
the  complaint  alleged  that  "defendant 
subscribed  to  the  joint  stock  of  the  said 
company  $400,  for  and  in  consideration  of 
eight  shares  of  the  capital  stock,"  and  also 
alleged  a  demand  of  payment.  Held,  on 
demurrer,  that  the  complaint  sufficiently 
stated  that  the  subscription  was  pa  able  in 
money  and  was  due  before  action  brought. 
Cher  aw  &»  C.  R.  Co.  v.  JVhite,  14  So.  Car.  51. 
Followed  tw  Cheraw  &  C.  R.  Co.  v.  Gar- 
land, 14  So.  Car.  63. 

90. or  holding  of  shares.— The 

statute  8  '&  9  Vict.  c.  16,  §  26.  gives  a 
form  of  declaration  to  be  used  in  an  action 
by  a  company  for  calls.  In  that  form,  the 
allegation  that "  the  defendant  is  the  holder 
of  shares  "  means  that  he  was  the  holder  at 
the  time  the  call  was  made.  Belfast  &>  C. 
D.  R.  Co.  V.  Strange,  i  Ex.  739,  5  Railiv. 
Cas.  548. 

A  declaration  in  an  action  by  a  company 
for  calls  is  good  on  special  demurrer,  al- 
though it  is  objected  that  there  was  no 
allegation  that  defendant  was  a  holder  of 
the  shares  mentioned  at  the  time  the  calls 
were  made.  Wilson  v.  Birkenhead,  L,  &»  C. 
J.  R.  Co.,  6  Ex.  627,  6  Railw.  Cas.  771,  20 
L.  J.  Ex.  306. 

91.  Alleging  notice  to  defendant. 
— In  an  action  against  a  stockholder  for 
instalments  required  to  be  paid  upon  his 
shares,  it  should  be  alleged  that  defendant 
had  notice  of  the  requisitions ;  but  a  gen- 
eral averment  in  the  declaration,  "  of  all 
which  the  defendant  had  notice,"  is  suffi- 
cient on  general  demurrer.  Carlisle  v.  Ca- 
hawba  &*  M.  R.  Co.,  4  Ala.  70. 

In  an  action  to  recover  assessments  upon 
stock,  an  averment  of  notice  of  the  assess- 
ments, without  alleging  that  "  due  "  notice 
was  given,  is  sufficient.  Mississippi,  O.  &* R. 
R.  R.  Co.  V.  Turrentine,  21  Ark.  445.— Fol- 
lowing Mississippi,  O.  &  R.  R.  R.  Co.  v. 
Gaster,  20  Ark.  455, 


SUBSCRIPTIONS  TO  STOCK,  92, 98. 


761 


A  complaint  in  an  action  upon  a  sub- 
scription to  railroad  stock,  payments  of 
which  were  to  be  made  in  such  instalments 
as  by  the  directors  required,  etc.,  failing  to 
state  that  any  instalment  had  been  required 
by  the  directors  is  demurrable.  Cebhart  v. 
Junction  R.  Co.,  is  Ind.  484. 

92.  aud  demand  of  perform- 
ance by  li'm.— An  averment  that  a  sub- 
scription to  stock  was  payable  in  labor  and 
materials  within  two  years,  but  that  the 
subscriber  had  failed  to  perform  the  labor 
or  furnish  the  materials  within  the  time, 
whereby  the  subscription  became  payable 
in  cash,  is  good  after  verdict  without  an 
allegation  of  a  demand  for  the  work  or  ma- 
terials. Hayworth  v.  Junction  R.  Co.,  13 
Ind.  348. 

Complaint  alleged  the  subscription  by  de- 
fendant to  the  stock  of  plaintiff  company  of 
fifty  acres  of  land,  and  a  refusal  to  convey, 
and  demanded  payment  in  money  for  the 
land  so  subscribed,  without  alleging  a  prom- 
ise to  pay  money  or  a  previous  demand  for 
money.  Held,  on  demurrer,  to  state  facts 
sufficient  to  constitute  a  cause  of  action. 
Cher  aw  &•  C.  R.  Co.  v.  Garland,  14  So. 
Car.  63. 

93.  Alleging  performance  of  con- 
ditions on  plaintifi's  part.— Where  a 
subscription  is  made  for  the  express  purpose 
of  securing  the  extension  of  a  road,  it  is  not 
necessary  to  aver  in  the  declaration  that 
the  company  was  ready  to  make  the  ex- 
tension ;  and  where  the  company  has  two 
remedies  against  the  stockholder,  one  by 
statute  and  the  other  by  forfeiture,  it  is 
not  necessary  to  give  notice  before  suit 
which  of  these  remedies  the  ryjmpany  elects 
to  pursue.  New  Albany  &*  S.  R.  Co.  v. 
Pickens,  $  Ind.  247. 

Where  a  given  amount  of  capital  stock  is 
required  to  be  subscribed  before  a  corpora- 
tion, by  its  charter,  is  authorized  to  go  into 
operation,  it  is  necessary,  in  an  action  by 
the  company  against  a  stockholder,  to  re- 
cover the  amount  subscribed  by  him,  that 
the  petition  should  allege  that  the  requisite 
amount  of  stock  had  been  subscribed  before 
he  was  called  upon  for  che  amount  of  his 
subscription  ;  and  a  failure  to  make  such 
averment  may  be  relied  upon  for  reversal, 
although  the  question  was  not  made  in  the 
trial  court.  Fry  v.  Lexington  &•  B.  S.  R. 
Co.,  2  Me>c  (Ky.)  314.— -Distinguished  in 
Peoria  &  R.  I.  R.  Co.  v.  Pieston,  35  Iowa 
115.     QiroTKi)  IN   I.ivesey  V.  Omaha  Hotel 


Co.,  5  Neb.  50;  Estabrook  v.  Omaha  Hotel 
Co..  5  Neb.  76. 

But  where  the  promise  is  unconditional 
to  pay  to  a  corporation  a  certain  sum  of 
money,  either  as  an  ordinary  debt  or  as  a 
subscription  to  its  capital  stock,  it  is  un- 
necessary to  aver  that  the  requisite  amount 
of  capital  stock  has  been  subscribed,  as  pro- 
vided by  the  charter,  in  order  to  present  a 
good  cause  of  action.  Lail  v.  Mt.  Sterling 
Coal  Road  Co.,  13  Bush  {Ky.)  32. 

And  where  the  terms  of  a  subscription 
are  determined  by  charter,  it  is  not  neces- 
sary to  aver  the  terms  in  the  complaint.  A 
general  averment  that  all  the  terms  and 
conditions  necessary  to  authorize  a  demand 
of  payment  have  been  complied  with  is 
sufficient,  under  Ky.  Code  of  Prac.  §  149. 
Henderson  &*  N.  R.  Co.  v.  Leavell,  16  B. 
Mon.  (Ky.)  358.— Following  McMillan  v. 
Maysville  &  L.  R.  Co.,  15  B.  Mon.  218.— 
Approved  in  Pacific  R.  Co.  v.  Seely,  43 
Mo.  212. 

And  it  is  not  necessary  that  the  corpora- 
tion aver  its  regular  organization  where  it 
is  created  by  statute,  as  a  subscriber  is  not 
permitted  to  deny  its  corporate  existence. 
And  it  is  not  necessary  to  aver  readiness  to 
perform  conditions  which  are  to  be  per- 
formed thereafter.  Henderson  &»  N.  R.  Co. 
v.  Leavell,  16  B.  Mon.  {Ky.)  358. 

Suit  was  brought  on  a  contract  to  pay  to 
a  company  a  certain  sum  of  money  when  its 
road  should  be  completed  through  a  par 
ticular  county,  provided  it  should  pass 
through  certain  lands  in  a  specified  locality. 
Held,  that  an  averment  "  that  accepting  and 
..cting  on  said  agreement  and  subscription, 
said  company  did  construct  and  build  such 
railroad,  and  that  the  same  was  so  far  com- 
pleted in  accordance  with  said  contract  and 
agreement  that,  on,"  etc.,  "  the  same  was 
ready  for  running  cars  thereon  through  Sdid 
county,"  was  not  a  sufficient  averment  o( 
performance  of  the  conditions  of  the  con- 
tract to  entitle  plaintiff  to  recover.  Hays 
v.  Branham,  36  Ind.  219,  5  Atn.  Ry.  Rep.  18. 

A  company,  although  a  corporation  de 
Jacto  and  entitled  as  such  to  maintain  ac- 
tions, cannot  recover  upon  subscriptions  to 
its  stock  without  showing  performance  of 
all  those  acts  which  by  the  statute  are  made 
conditions  precedent.  Swariwout  v.  Michi- 
gan Air  Line  R.  Co.,  24  Mich.  389,  4  Am. 
Ry.  Rep.  63.— Approved  in  Paducah  &  M. 
R.  Co.  V.  Parks,  86  Tenn.  554,  8  S.  W. 
Rep.  842. 


f 


U 


111 


i 
1  t 


762 


SUBSCRIPTIONS   TO  STOCK,  94, 95. 


h  ::i- 


;  :     I 


The  promises  of  the  respective  parties  to 
a  subscription  contract  are  concurrent  and 
dependent,  and  neither  can  require  the 
other  to  perform  without  performing,  or 
offering  to  perform,  on  his  part.  A  com- 
plaint, in  an  action  by  a  corporation  upon  a 
subscription  to  stock,  which  does  not  aver 
that  the  company  has  issued,  or  offered  to 
issue,  the  stocit  is  not  sufficient.  5/.  Paul, 
S.  6*  T.  F.  R.  Co.  V.  Robbins,  23  Minn.  439, 
17  Am.  Ry.  Rep.  81. 

An  action  was  instituted  upon  a  subscrip- 
tion contract  conditioned  to  be  paid  in  such 
instalments  as  might,  from  time  to  time,  be 
called  for  by  the  directors,  provided  the 
instalments  should  be  expended  upon  a  cer- 
tain line  of  road  to  be  thereafter  located  by 
the  company.  Htld,  that  a  petition  showing 
neither  the  road  constructed  along  the  line 
designated,  nor  an  offer  nor  readiness  to 
expend  the  money  subscribed  according  to 
the  condition,  is  defective :  and  that  upon  a 
demurrer  by  plaintiff  to  an  answer  to  such 
petition,  such  defects  in  the  petition  require 
the  demurrer  to  be  overruled.  Trott  v. 
Sarchett,  10  Ohio  St.  241. 

In  an  action  to  recover  money  agreed  to 
be  paid  or  stock,  an  averment  of  a  readi- 
ness and  willingness  to  issue  and  deliver 
the  certificates  of  stock  is  necessary.  The 
right  to  enforce  payment  is  not  distinct  and 
independent  from  the  ability  to  issue  and 
deliver  the  stock.  If  the  subscriber  cannot 
get  the  stock,  the  payment  of  money  cannot 
be  enforced.  The  acts  to  be  done  must  be 
regarded  as  contemporaneous.  James  v. 
Cincinnati,  H.  &*  JD.  R,  Co.,  2  Disney 
(Ohio)  261. 

A  subscription  to  stock  contained  a  con- 
dition that  the  money  subscribed  was  to  be 
expended  upon  a  particular  section  of  the 
route.  In  an  action  to  collect  the  subscrip- 
tion, the  declaration  averred  generally  that 
the  conditions  required  had  all  been  com- 
plied with,  and  that  the  assessments  had 
been  "  duly  made  and  laid."  Htld,  upon 
demurrer,  that  such  general  allegations 
were  not  sufficient.  The  manner  in  which 
the  conditions  had  been  performed,  and  the 
purpose  for  which  the  assessments  had  been 
made  in  fact,  should  be  specifically  stated. 
Woonsocket  Union R.  Co.  v.  Taft.i R.I.^ix. 

94.  Pleas  and  answers,  generally. 
— The  pleas  allowed  in  an  action  for  calls 
under  a  railway  act  by  which  the  directors 
are  entitled  to  recover  upon  proving  that 
defendant  was  a  proprietor  and  that  notice 


was  given,  unless  defendant  should  prove 
that  he  had  paid  the  full  amount  of  his  sub- 
scription, are,  nunguam  indebitatus;  that 
defendant  was  not  a  proprietor;  and  that 
the  directors  have  exercised  their  power  of 
declaring  the  shares  forfeited.  South  East- 
ern R.  Co.  V.  Hebblewhite,  ^P.  &*  D.  246,  2 
Railw.  Cas.  247. 

In  an  action  to  recover  the  .amount  of  a 
subscription  to  stock,  an  answer  alleging  a 
failure  to  tender  a  certificate  of  such  stock 
is  insufficient.   Drover  v.  Evans,  59  /nd.  454. 

Under  Ohio  Act  of  May  i,  1852,  relating 
to  corporations,  where  a  corporation  sues 
to  recover  unpaid  instalments  of  stock,  an 
allegation  in  the  complaint  that  the  board 
of  directors  made  a  call  for  payments  of  a 
certain  amount  at  a  certain  time  and  place 
is  necessary  to  a  recovery ;  and  an  answer 
which  denies  this  is  good  on  general  de- 
murrer. Mansfield,  C.  &*  L.  M.  R.  Co.  v. 
Hall,  26  Ohio  St.  310,  1 1  Am.  Ry.  Rep.  56. 

The  fourth,  fifth,  and  sixth  pleas  set  up 
that  notice  of  the  calls  sued  on  was  not 
duly  given  and  published ;  that  the  call  ex- 
ceeded ten  per  cent,  on  the  subscribed  capi- 
tal, contrary  to  the  statute ;  and  as  to  the 
second  call,  that  it  was  made  payable  at  a 
less  interval  than  two  months  from  the  pre- 
vious call.  Held,  good,  under  35  Vict.  c. 
53.  §§  13,  14.  and  C.  S.  C.  c.  66,  §  48.  Port 
Dover  &»  L.  H.  R.  Co.  v.  Grey,  36  U.  C.  Q. 
B.  425. 

95.  General  denial.  —  Suit  upon  a 
subscription  to  stock.  The  complaint  set 
forth  the  article  subscribed  to,  alleged  per- 
formance on  the  part  of  the  company,  and 
a  subsequent  promise  to  pay  by  defendant. 
Answer:  i,  the  general  denial ;  2,  payment. 
Held,  that  the  latter  was  new  matter,  not 
provable  under  the  general  denial,  and  the 
paragraph  setting  it  up  was  not  demur- 
rable. Ensey  v.  Cleveland  &*  St.  L.  R.  Co., 
10  Ind.  178. 

An  answer  in  general  denial  not  verified, 
to  a  complaint  by  a  company  to  recover 
upon  a  subscription,  admits  the  capacity  of 
the  company  to  sue,  and  the  execution  of  a 
written  subscription  to  stock.  Subsequent 
paragraphs  of  the  same  answer  denying  the 
existence  of  the  corporation  may  be  rejected 
on  motion.  Price  v.  Grand  Rapids  6*  I.  R. 
Co.,  18  /nd.  137. 

Where  a  subscription  is  conditional,  and 
the  complaint  avers  performance  of  the 
conditions,  all  evidence  admissible  under 
answers  of  failure  and  want  of  considera- 


'11 


SUBSCRIPTIONS  TO   STOCK,  $)0-98. 


763 


tion  and  non-performance  of  sucli  con- 
ditions is  admissible  under  the  general 
denial;  and,  where  the  latter  is  pleaded, 
error  In  sustaining  demurrers  to  the  former 
is  harmless.    Drover  v.  Evans,  59  Ind.  454. 

96.  Nil  debet. —iVi7  debet  may  be 
pleaded  to  an  action  by  a  railway  company 
for  calls.  Welland  Ji.  Co.  v.  Blake,  6  H.  &* 
N.  410.  30  L.  J.  Ex.  161,  9  W.  X.  386.  3  L. 
T.  678,7 /ur.N.S.  373. 

The  plea  of  nii  debet  in  an  action  by  a 
railway  company  for  calls  does  not  admit 
that  the  defendant  was  a  shareholder,  al- 
though this  is  alleged  in  the  declaration. 
Birkenhead,  L,  &*  C.  J.  K.  Co.  v.  Brmvnrigg, 
4  Ex.  426.  19  L.J.  Ex.  27,  i3/«r.  943. 

07.  lufaucy. — Where,  to  an  action  for 
calls,  defendant  pleads  infancy,  the  plea  is 
bad  if  it  does  not  appear  thereby  that  he 
became  a  shareholder  by  contract  and 
avoided  it.  Leeds  &*  T.  R.  Co.  v.  FearnUy, 
4  Ex.  26,  S  Railw.  Cas.  644,  7  D.&*  L.  68, 
18  Z./.  Ex.  330. 

Where  an  infant  is  sued  for  calls,  and 
infancy  is  pleaded  as  a  defense,  the  plea 
should  allege  a  repudiation  of  the  contract 
within  a  reasonable  time  after  defendant 
became  of  age.  Dublin  &*  IV.  R.  Co.  v. 
Black,  7  Railw.  Cas.  434,  8  Ex.  181,  22  L.J. 
Ex.  94. 

98.  Instances  of  bad  pleas.  — To  an 
action  upon  promissory  notes  given  as  a 
subscription  to  stock,  pleas  to  the  effect 
that  the  company's  agent  who  procured  the 
subscription  did  so  by  representing  that  the 
road  would  be  economically  huilt,  that  the 
stock  would  be  a  good  investment  and 
would  pay  dividends,  and  by  making  other 
like  representations,  and  that  all  these  rep- 
resentations proved  to  be  untrue,  set  forth 
no  valid  defense  and  were  properly  stricken 
out  on  demurrer.  Weston  v.  Columbus 
Southern R.  Co.,  90  Ga.  289,  i^S.E. Rep,  773. 

A  plea  which  admits  a  refusal  to  take 
certain  stock  subscribed  for,  and  that  a 
third  person  had  agreed  to  take  it,  and  that 
the  commissioners  had  counted  the  stock 
to  such  person,  is  not  sufficient.  The  sig- 
nature of  the  first  subscriber  should  have 
been  erased  and  that  of  the  other  person 
substituted,  or  something  done  to  hold  the 
latter  liable.  Ryder  v.  Alton  &•  S.  R.  Co., 
13  ///.  S16. 

An  answer  in  a  suit  upon  a  stock  sub- 
scription which  set  up  fraud,  in  that  the 
company,  since  defendant's  cash  subscrip- 
tion, had  taken  a  large  land  subscription  at 


enormous  prices,  is  bad  on  demurrer. 
Maccoun  v.  Indiana  &*  /.  C.  R.  Co.,  9  Ind. 
262.  Hornaday  v.  Indiana  &-  I.  C.  R.  Co., 
9  Ind.  263. 

An  answer  denying  that  the  company  has 
given  defendant's  stock  to  him  is  bad.  The 
company  is  at  most  only  bound  to  tender 
it  conditionally.  Hardy  v.  Merriweather,  14 
Ind.  203.— Following  Gorham  v.  Reeves, 
I  Ind.  421. 

It  is  not  a  good  bar  to  an  action  upon  a 
subscription  to  the  stock  of  a  railroad  com- 
pany to  aver  that,  at  the  time  the  subscrip- 
tion was  made,  the  soliciting  agent  of  the 
company  agreed  in  writing,  separate  from 
the  contract  of  subscription,  that  if  the 
citizens  of  a  named  place  and  vicinity  would 
subscribe  a  given  sum  to  such  stock,  the 
proposed  road  should  be  located  within  a 
given  distance  of  such  place,  and  that  such 
subscription  should  be  expended  on  a  cer- 
tain part  of  said  road,  and  that  the  sub- 
scription was  made  in  consideration  of  such 
agreement,  and  that  said  agreement  was 
not  performed  by  the  company.  Brownlee 
V.  Ohio,  I.  &*  I.  R.  Co.,  18  Ind.  68. 

A  plea  by  a  stockholder,  setting  up  a 
deviation  in  the  route  of  the  road  pre- 
scribed by  the  charter  as  a  defense  to  a 
<!uit  to  enforce  his  subscription  for  stock, 
"  that  said  road  was  not  constructed  in 
accordance  with  the  requirements  of  the 
charter,"  is  bad  for  uncertainty.  Champion 
V.  Memphis  &*  C.  R.  Co.,  35  Miss.  69?. 

Defendant  pleaded  that  the  act  of  in- 
corporation provides  that  $25,000  of  stock 
shall  be  subscribed,  and  fifty  per  cent,  paid 
thereon,  and  the  railway  be  bona  Jide  com- 
menced within  two  years,  otherwise  the 
charter  should  be  forfeited  and  be  void ;  and 
that  this  requirement  was  not  complied 
with.  Held,  bad.  Port  Dover  <S-  L.  H.  R. 
Co.  V.  Grey,  36  U.  C.  Q.  B.  425.— Follow- 
ing Toronto  &  L.  H.  R.  Co.  v.  Crookshank, 
4  U.  C.  Q.  B.  309. 

Eighth  plea  was  that,  by  plaintiffs'  charter, 
the  capital  stock  was  declared  to  be  $250,000 ; 
that  defendant  never  subscribed  except  on 
the  terms  expressed  in  the  charter,  that  the 
full  amount  of  stock  should  be  subscribed 
for  before  the  road  should  be  commenced  ; 
that  not  one-third  of  such  stock  was  sub- 
scribed for ;  that  the  ten  per  cent,  actually 
subscribed  was  sufficient  for  the  expenses  in 
procuring  the  act  and  making  the  surveys 
and  estimates  for  the  works ;  and  that 
defendant   subscribed  before  the  general 


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SUBSCRIPTIONS  TO  STOCK,  09-103. 


meeting  required  by  section  8  of  the  act,  on 
the  day  of  which  meeting  $100,000  was 
subscribed.  Heid,  no  defense.  Fori  Dovtr 
&•  L.  H.  R.  Co.  V.  Grey,  36  U.  C.  Q.  B.  425. 

Ninth  plea,  on  equitable  grounds,  set  out, 
in  substance,  that  the  road  and  extension 
would  cost  $900,000 ;  that  the  assets  which 
the  company  had  or  could  acquire  would 
not  exceed  half  that  sum ;  that  there  was 
no  possibility  of  making  the  road  therewith, 
as  the  directors  and  plaintiflfs  well  knew, 
but  that  they  were  proceeding  to  construct 
part,  and  to  expend  all  said  assets,  in  bad 
faith,  for  improper  purposes,  and  with  the 
view  of  personal  gain  to  the  directors  and 
others  in  collusion  with  them.  HeM,  no 
defense;  that  the  charges  were  too  loose 
and  indefinite ;  and  that  if  sustainable  they 
would  form  proper  ground  for  a  bill  in 
equity  only.  Port  Dover  &*  L.  H.  R.  Co. 
V.  Grey,  36  U.  C.  Q.  B.  425. 

90.  Beplicatioii.— Where  the  defend- 
ant in  an  action  for  calls  pleads  that  the 
directors  made  more  calls  and  for  a  greater 
amount  than  were  authorized  by  the  com- 
pany's act,  a  replication  that  the  calls  men- 
tioned in  the  plea  were  not  authorized  and 
were  therefore  void,  and  that  the  call  sued 
for  was  not  in  excess  of  authority  if  the 
void  calls  were  not  reckoned,  and  that  the 
defendant  did  not  pay  the  void  calls,  is  bad, 
since  it  does  not  show  that  the  directors 
declared  the  unauthorized  calls  void.  Wel- 
land  R.  Co.  v.  Berrie,  6  H.  &*  N.  416, 
30  L. /  Ex.  163.  9  W.  R.  38s,  iL.  r.  81 1. 

100.  Profert.  —  It  is  unnecessary  to 
make  profert  of  defendant's  written  sub- 
scription to  the  capital  stock  of  a  company, 
in  a  suit  for  calls  made  upon  his  stock,  the 
written  subscription  not  being  declared  on 
as  the  foundation  of  the  action.  Mississippi, 
O.  &*  R.  R.  R.  Co.  v,  Gasier,  20  Ark.  455. 

5.  Evidence. 

101.  lu  general. — It  cannot  be  proved 
collaterally  that  a  railroad  company  has 
not  expended  five  per  cent,  within  three 
years,  as  required  by  statute.  Tkornburgh 
V.  Newcastle  &*  D.  R.  Co.,  14  Ind.  499. 

Where  a  defendant,  by  way  of  defense  to 
a  note  given  in  payment  of  a  subscription 
to  stock,  pleads,  in  general  terms,  that  it  is 
wholly  without  consideration  and  void,  and 
plaintiff,  without  requiring  a  statement  of 
the  facts  on  which  the  defense  is  based, 
joins  issue,  any  evidence  is  admissible  which 


tends  to  impeach  or  sustain  the  considera- 
tion.  Chamberlain  v.  Painesville  &*  H.  R, 
Co.,  15  Ohio  St.  225. 

Evidence  that  no  work  has  been  done 
towards  grading  a  road  is  relevant  to  the 
issue  of  location.  Carolina,  C.  G.  &»  C.  R, 
Co,  V.  Seigler,  24  So.  Car.  124. 

102.  Proof  of  plaintiff's  corporate 
character.  — Where  the  statute  provides 
for  a  board  of  commissioners  to  receive 
subscriptions  to  stock,  the  minutes  of  the 
board  are  presumptive  evidence  against  a 
subscriber  that  the  requisitions  of  the  com- 
pany's charter  have  been  complied  with, 
and  the  corporation  regularly  organized. 
Ryder  v.  Alton  &*  S.  R.  Co.,  13  ///.  516. 

When  suit  is  brought  upoi  the  prelim- 
inary articles  of  subscription  '  jt  stock,  they 
constitute  the  cause  of  action,  and  a  copy 
of  the  articles  of  association,  certified  by 
the  secretary  of  state,  may  be  given  in 
evidence  to  prove  the  existence  of  the  cor- 
poration. Heaston  V.  Cincinnati  A' Ft.  IV, 
R.  Co.,  16  Ind.  275. 

Where  it  appears  that  defendant  attended 
a  meeting  of  directors  at  which  an  assess- 
ment on  stock  was  made,  it  is  immaterial 
with  what  motive  and  under  what  circum- 
stances defendant  acted  ;  and  evidence  as 
to  these  facts  is  properly  excluded.  Penob- 
scot R.  Co.  V.  White,  41  Me.  512. 

A  subscriber  signed  a  subscription  which 
recited  that  the  company  had  been  formed 
under  the  General  Railroad  Act,  and  thnt  the 
articles  of  association  and  th*"  ■  .ccj-'iry 
af!idavits  had  been  duly  fikd  .'  ;r.ircu 
by  the  statute.     Held,  thaf.  tii  -.•  con- 

clusive evidence  of  incorporr.tirii  ?  ^iiinst 
the  subscriber.  Black  River  &•  V.  .  Co..  v. 
Clarke,  25  N.  Y.  208 ;  affirming  31  Barb.  258. 

Where,  in  a  petition  to  recover  a  sub- 
scription to  stock,  it  is  averred  that  the  di- 
rectors had  been  duly  elected  by  the  stock- 
holders, in  pursuance  of  notice,  it  is  to  be 
presumed  that  the  requisite  amount  of  stock 
had  been  subscribed  to  authorize  such  elec- 
tion, and  also  to  authorize  the  location  of 
the  road  and  the  making  of  assessments  by 
the  directors.  Ashtabula  &*  N.  L.  R.  Co.  v. 
Smith,  IS  Ohio  St.  328. 

103.  Sbowlug  subscription  by  de- 
fendant and  others.*—  Where  a  sub- 
scriber is  sued  for  assessments  on  his  stock, 
evidence  is  admissible  that  he  entered  into 

*  Evidence  of  contract  between  shareholders 
and  company, see  note, 4  Am.  &  Eng.  F  Cas.  290. 


SUBSCRIPTIONS  TO  STOCK,  104,  lOB. 


765 


an  agreement  with  third  parties  to  guarantee 
a  dividend  on  their  stock,  and  the  induce- 
ments which  he  held  out  to  them.  DaH' 
bury  &»  N.  R.  Co.  v.  Wilson,  23  Conn.  435. 

Where  a  written  instrument  is  not  de- 
clared on,  but  indebitatus  assumpsit  is 
brought  to  recover  upon  a  subscription  to 
stock,  proof  of  the  subscription  is  necessary, 
but  for  this  purpose  a  stockholder  is  incom- 
petent.   Peake  v.  Wabash  Ji.  Co.,  18  ///.  88. 

In  case  of  a  subscription  to  the  stock  of  a 
corporation,  the  notes  given  in  payment 
therefor  and  the  receipt  issued  by  the  com- 
pany for  payment  for  the  stock,  being  con- 
nected together  and  part  of  the  same  trans- 
action, are  admissible  in  evidence  as  part  of 
the  same  contract.  Hedge  v.  Gibson,  7  Am. 
S-  Eng.  R.  Cas.  69,  58  Iowa  656,  12  N.  W. 
Rep.  713. 

In  suits  to  recover  calls  upon  stock,  it  is 
not  necessary  for  the  company,  under  Miss. 
Act  of  1854,  to  prove  defendant's  subscrip- 
tion as  set  forth  in  the  complaint,  unless  he 
denies  it  under  oath.  ThigPen  v.  Mississippi 
C.  R.  Co.,  yi  Miss.  347. 

And  evidence  of  a  subscription  by  defend- 
ant, and  the  production  of  the  books  of  sub- 
scription on  trial,  are  unnecessary,  unless  de- 
fendant denies  the  subscription  under  oath. 
Th^Pen  v.  Mississippi  C.  R.  Co.,  32  Miss.  347. 

It  is  implied  that  a  subscriber  to  stock, 
upon  condition  that  others  subscribe  a  cer- 
tain amount  of  the  same  stock,  shall  be 
charged  by  any  evidence  which  would  be 
sufficient  in  an  action  brought  against  such 
other  persons  upon  their  subscriptions. 
Their  acknowledgment  of  their  signatures 
to  the  subscription,  although  after  suit 
brought,  is  sufficient.  Philadelphia  6f  W. 
C.  R.  Co.  V.  Hickman,  28  Pa.  St.  318. 

So  proof  by  a  witness  who  called  upon 
them  for  the  purpose,  and  saw  them  sev- 
erally write  their  names,  although  since  suit 
brought,  may  be  given  in  evidence  to  cor- 
roborate their  admissions.  Philadelphia  &* 
W.  C.  R.  Co.  V.  Hickman,  28  Pa.  St.  318. 

Proof  of  the  payment  for  stock  standing 
in  the  name  of  a  person  making  the  pay- 
ment involves  proof  for  a  previous  sub- 
scription. Philadelphia  &*  W.  C,  R.  Co. 
V.  Hickman.  28  Pa.  St.  318. 

The  books  of  a  corporation,  purporting 
to  contain  subscriptions  to  the  stock  of  the 
company,  are  not  of  themselves  evidence  of 
the  existence  of  such  subscriptions.  Phila- 
delphia &*  W.  C.  R,  Co.  V.  Hickman,  28  Pa. 
St.  318. 


The  return  to  the  governor  is  evidence  of 
a  subscription  by  one  of  the  commissioners; 
and  he  is  estopped  from  denying  it.  Rav- 
ing ton  V.  Pittsburgh  &*  S.  R.  Co.,  34  Pa. 
St.  358. 

In  an  action  to  recover  a  subscription  to 
stock  in  the  "  National  Express  and  Trans- 
portation Company,"  a  subscription  to  the 
stock  of  the  "  National  Express  Company  " 
is  admissible  to  prove  the  subscription,  it 
appearing  that  there  had  been  a  change 
from  the  latter  to  the  former  name.  Priest 
V.  Glenn,  51  Fed.  Rep.  400,  4  U.  S.  App.  478, 
2  C.  C.  A.  305  ;  affirming  48  Fed.  Rep.  19. 

104.  Proof  that  defendant  is  a 
stockholder.  —  A  person  subscribed  for 
certain  shares  in  a  corporation,  and  the  clerk 
entered  his  name  upon  the  records,  and  the 
subscriber  subsequently  stated  that  he  had 
taken  the  shares,  and  the  treasurer  offered 
him  a  certificate  for  the  same.  Held,  that 
the  evidence  was  competent  to  show  him  a 
shareholder,  so  far  as  to  be  liable  for  all 
legal  assessments  that  might  be  made  upon 
his  shares.  New  Hampshire  C.  R.  Co.  v. 
Johnson,  30  N.  H.  390. 

In  an  action  for  instalments  by  a  company 
against  a  stockholder,  a  proxy  which  de- 
fendant and  others  had  signed  "as  stock- 
holders," designating  the  number  of  shares 
opposite  their  names,  respectively,  is  prima 
facie  evidence  that  defendant  is  a  stock- 
holder. Greenville  &*  C.  R.  Co.  v.  Smith,  6 
Rich.  (So.  Car.)  91. 

105.  Of  performance  of  conditions 
on  plaintiiTs  part.  —  Where  it  appears 
that  the  subscription  in  satisfaction  of  which 
tiie  notes  in  suit  were  given  was  made  on 
condition  that  the  road  was  to  be  con- 
structed through  defendant's  land,  on  a 
specified  line,  testimony  that  the  railroad 
was  built  substantially  as  described  in  the 
subscription,  and  that  if  there  was  any  slight 
variance  from  the  exact  line  therein  de- 
scribed such  variance  was  with  defendant's 
knowledge  and  consent,  and  that  the  road 
conformed  with  his  ideas,  will  support  a 
finding  that  the  conditions  of  the  subscrip- 
tion were  complied  with.  Judson  v.  Gage, 
91  Cal.  304,  27  Pac.  Rep.  676. 

In  an  action  to  recover  the  amount  of  a 
subscription  to  stock  which  was  made  upon 
conditions  precedent,  the  company  has  the 
burden  to  prove  that  the  conditions  have 
been  complied  with  or  waived.  Brand  v. 
Lawrenceville  Branch  R.  Co.,  77  Ga.  506,  i 
S.  E.  Rep.  255. 


I 

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766 


SUBSCRIPTIONS  TO   STOCK,  106,  107. 


>  IM 


In  an  action  on  a  written  conditional  sub- 
scription of  stock,  the  written  subscription 
is  properly  admissible  in  evidence  for  the 
purpose  of  showing  performance  of  the  con- 
dition. Evansville,  I.  &*  C.  S.  L.  R.  Co.  v. 
Trtssler,  lo  Ind.  548. 

A  company  cannot  recover  on  a  subscrip- 
tion to  its  capital  stock  where  its  evidence 
fails  to  show  that  it  has  performed  all  the 
conditions  under  which  such  subscription 
was  made.  Shearer  v.  Evansville,  I.  &*  C. 
S.  L.  R.  Co.,  12  Ind.  452. 

Where  a  charter  provides  that  the  com- 
pany shall  not  engage  in  nor  commence  con- 
struction of  the  railway  until  three  fourths 
of  the  estimated  cost  of  the  road  has  been 
subscribed  for  by  responsible  persons,  the 
corporation  is  not  obliged  to  show  a  com- 
pliance with  this  provision  in  order  to  main- 
tain an  action  against  a  subscriber  for  an 
assessment  upon  the  stock.  Penobscot  R, 
Co.  V.  White,  41  Me.  513. 

For  the  purposes  of  an  asse^^ment  upon 
subscriptions  to  the  stock  oi  a  company, 
either  the  road  must  be  regarded  as  an 
entirety,  or  the  separate  division  set  apart 
for  construction  must  be  considered  and 
proceeded  with  by  itself  as  a  whole.  An 
action  for  an  assessment  upon  such  sub- 
scription cannot  be  maintained  without 
proof  that  the  necessary  subscriptions  had 
been  obtained  between  the  two  termini  ol 
the  division  designated  and  set  apart,  or 
within  the  required  distance  from  them. 
Swartwout  v.  Michigan  Air  Line  R.  Co.,  24 
Mich.  389,  4  Am.  Ry.  Rep.  63. 

106.  Of  calls  made,  uotice  to  de- 
fendant, etc.  —  Where  a  subscription  to 
stock  provides  that  it  shall  be  paid  "  in  such 
instalments  and  at  such  times  as  may  be 
decided  by  a  majority  of  the  stockholders, 
or  board  of  directors  or  trustees  empowered 
for  the  purpose  by  a  majority  of  the  stock- 
holders," and  suit  is  brought  on  such  con- 
tract against  a  subscriber  and  no  proof  is 
offered  showingthat  the  stockholders, direct- 
ors, or  trustees  have  ever  provided  in  what 
instalments  the  subscriptions  shall  be  paid, 
or  fixed  a  time  or  times  for  such  payment, 
or  made  any  call  for  payment,  there  should 
be  a  judgment  of  nonsuit  against  plaintiff. 
North  6-  S.  St.  R.  Co.  v.  Spullock,  88  Ga. 
283.  i^S.E.  Rep.  478. 

A  subscription  book,  with  the  orders  of 
the  company  requiring  payment,  arj  com- 
petent evidence  under  the  general  count. 
Neither  actual  notice  of  the.  calls  nor  de- 


mand  of  payment  need  be  proved.  Peak* 
V.  Wabash  R.  Co.,  18  ///.  88. 

Where  a  charter  makes  the  certificate  of 
the  secretary  "  evidence  of  the  regular  or- 
ganization "  of  the  company,  and  of  any  act 
or  order  of  the  board  of  directors,  the  secre- 
tary's certificate  that  a  proper  call  was  made 
on  subscriptions  is  not  competent  proof  of 
that  fact,  but  it  must  be  made  to  appear  by 
copies  of  the  orders  of  the  board,  duly  cer- 
tified. Tomlin  v.  Tonica  &*  P.  R.  Co.,  23 
///.  429. 

In  such  case  the  secretary's  certificate  of 
the  publication  of  notice  of  calls  upon  sub- 
scriptions to  stock  is  not  evidence  of  that 
fact,  and  the  publication  must  be  proved  by 
competent  legal  evidence,  the  same  as  any 
other  fact.  Tomlin  v.  Tonica  &*  P.  R.  Co., 
-3///.  429. 

Where  suit  is  brought  on  a  special  condi- 
tional subscription  to  stock,  it  is  not  neces- 
sary to  prove  that  calls  were  made  by  the 
company,  as  required  in  the  case  Of  ordinary 
subscriptions.  Stanstead,  S.  &»  C,  R.  Co.  v. 
Brigham,  17  Low.  Can.  54. 

Defendant  was  sued  on  his  subscription 
for  twenty-five  shares  of  railroad  stock.  On 
the  trial  he  objected  that  the  words  "  twenty- 
five  "  had  been  written  over  "  ten  "  in  the 
book  where  hi^  subscription  was  made. 
Held,  that  the  presumption  of  a  change  was 
sufficiently  rebutted  by  the  fact  that  a  pre- 
vious call  of  two  and  one  half  per  cent,  had 
been  made,  and  defendant  had  paid  in  two 
and  one  half  per  cent,  of  the  amount  of 
twenty-five  shares.  Fraser  v.  Hickman,  12 
U.  C.  C.  P.  584. 

107.  Evidence  in  defense  —  De- 
fendant not  a  stoclcholder.  —  Where 
a  defendant  in  m  action  for  calls  denies 
that  he  is  a  shareholder,  he  may  not  only 
dispute  that  he  is  such  de  facto  but  may 
show  that  he  is  not  a  shareholder  </rry»r«. 
Shropshire  Union  R.  &*  C.  Co.  v.  Anderson, 
3  Ex.  401,6  Railw.  Cas.  56,  6  D.  &»  L.  482. 
lijur.  175,  18  L.J.  Ex.  232. 

A  defendant  in  a  suit  upon  a  subscription 
to  the  original  stock  of  a  company  cannot 
demand  inspection  of  the  articles  of  asso- 
ciation subscribed  by  him,  and  which  are 
on  file  with  the  secretary  of  state.  Eakright 
V.  Logansport  &•  N.  /.  R.  Ci».,  13  Tnd.  404. — 
Distinguished  in  Reed  v.  Richmond  St. 
R.  Co.,  50  Ind.  342. 

Nor  can  he  show  by  parol  that  he  would 
not  have  subscribed  if  he  had  supposed  that 
a  particular  route  would  be  adopted.    Eakr 


SUBSCRIPTIONS   TO   STOCK,  108,  109. 


767 


right  V.  Logansport  &*  N.  I.  R.  Co.,  13  Ind. 
404.— Followed  in  Carlisle  v.  Evansville, 
I.  &  C.  S.  L.  R.  Co.,  13  Ind.  477. 

A  defendant  interposed  a  plea  of  non  tst 
factum  in  a  suit  against  him  on  a  subscrip- 
tion to  stoclc.  The  evidence  showed  that 
the  signature  was  not  in  defendant's  hand- 
writing, but  tended  to  show  that  he  was  one 
of  a  committee  to  procure  subscribers ;  that 
he  attended  a  meeting  of  subscribers  and 
expressed  a  willingness  to  close  his  sub- 
scription by  note.  Held,  that  the  evidence 
was  sufficient  to  require  the  admission  of 
the  instrument  in  evidence,  after  which  it 
was  for  the  jury  to  determine  upon  the  facts. 
Houston  &*  T.  C.  H.  Co.  v.  Chandler,  51 
Tex.  416. 

Defendant,  to  prove  that  he  never  became 
a  legal  subscriber  to  the  capital  stoclc  of 
plaintiff  company,  that  his  proposal  to  be- 
come a  subscriber  was  revoked  by  him  with 
the  consent  of  those  to  whom  it  was  made 
previous  to  the  organization  of  the  company, 
and  that  the  company,  upon  its  organiza- 
tion, refused  to  receive  it  as  a  subscription 
or  treat  him  as  a  subscriber,  offered,  in  con- 
nection with  oral  evidence  to  be  introduced, 
the  records  of  the  company  in  relation  to 
its  organization,  in  which  records,  in  two 
statements  of  lists  of  subscribers,  defendant's 
name  did  not  appear.  Held,  that  the  records 
were  competent  evidence.  Stuart  v.  Valley 
R.  Co.,  32  Gratt.  {Va.)  146. 

108.  Assurances  and  inducements 
by  officials  of  plaintiff.— Where  a  party 
is  sued  to  recover  assessments  upon  his 
shares  of  stock,  it  is  inadmissible  to  allow 
oral  testimony  to  be  given  as  to  the  induce- 
ments and  circumstances  which  led  to  the 
subscription  and  the  understanding  of  the 
subscribers  when  they  signed,  unless  such 
testimony  goes  to  establish  fraud  or  mistake. 
Martin  v.  Pensacola  &*  G.  R.  Co.,  8  Fla.  370. 

Defendant  was  sued  to  recover  the  amount 
of  his  subscription  to  stock,  and  pleaded, 
among  other  things,  that  he  was  induced  to 
subscribe  by  representations  of  the  presi- 
dent and  other  agents  of  the  company  that 
the  road  should  not  be  stocked  or  bonded 
above  certain  specified  amounts  per  mile. 
It  appeared  that  his  principal  inducement 
to  subscribe  was  to  secure  the  road  to  his 
town.  He  testified  that  the  road  was 
stocked  and  bonded  for  more  than  the 
amounts  specified ;  but  he  did  not  testify 
that  he  would  not  have  subscribed  if  he  had 
known  this  at  the  time,    A  verdict  was 


found  for  the  company.  Held,  that  there 
was  no  error  in  a  refusal  by  the  trial  court  to 
set  aside  the  ve-dict  and  grant  a  new  trial. 
Weems  v.  Georgia  J  lidland  &*  G.  R.  Co.,  88 
Ga.  303,  14  ,^.  £'.  Rep.  583. 

Where  a  subscription  to  stock  is  condi- 
tioned upon  the  road  being  located  on  a 
certain  route,  plaintiff  may  prove,  in  a  suit 
on  the  subscription,  that  defendant  owned 
land  upon  that  route,  as  showing  what  in- 
duced him  to  subscribe.  Vawter  v.  Ohio 
&*  M.  R.  Co.,  14  Ind.  174. 

Evidence  is  admissible  for  a  defendant 
that  the  agent  of  the  company  who  pro- 
cured his  subscription  agreed  to  hold  it 
until  he  should  authorize  its  delivery  to  the 
company,  and  that  a  person  not  a  director 
obtained  the  paper  to  look  at.  and  without 
consent  of  the  agent  or  defendant  delivered 
it  to  the  company.  Cass  v.  Pittsburg,  V. 
&»  C.  R.  Co.,  80  Pa.  St.  31. 

In  an  action  to  recover  a  subscription  to 
stock  it  is  not  competent  for  the  defendant 
to  testify  to  representations  made  to  him  at 
the  time  of  his  subscription  to  induce  him 
to  subscribe.  Cass  v.  Pittsburg,  V.  &*  C, 
R.  Co.,  80  Pa.  St.  31. 

In  a  subscription  to  stock  it  was  stated 
that  the  road  was  to  oe  commenced  "as 
soon  as  sufficient  funds  shall  be  subscribed 
to  carry  on  the  work."  Held,  in  a  suit  for 
the  subscription,  that  the  assurances  of  the 
officers  at  a  public  meeting  held  for  pro- 
curing subscriptions,  at  which  defendant 
subscribed,  that  the  money  would  not  be 
called  for  till  $150,000  were  subscribed, 
were  evidence,  being  an  inducement  on 
which  the  subscription  was  obtained.  Caley 
V.  Philadelphia  &*  C.  County  R.  Co.,  80  Pa. 
St.  363.— Distinguished  in  Montgomery 
Southern  R.  Co.  v.  Matthews,  24  Am.  &  Eng. 
R.  Cas.  9,  77  Ala.  357,  54  Am.  Rep.  60. 

Where  previous  to  signing  a  subscription 
to  stock  in  a  corporation,  defendant  ob- 
jected to  signing  for  the  reason  that  certain 
conditions  on  which  the  subscription  was 
to  be  made  did  not  appear  therein,  and  was 
assured  by  the  president  of  the  corporation 
that  these  conditions  should  be  considered 
a  part  of  the  contract,  parol  evidence  of 
these  conditions  is  admissible  in  a  suit  on 
the  subscription,  and  the  non-performance 
of  them  is  a  defense.  McCarty  v.  Selins- 
grove  &»  N.  B.  R.  Co.,  87  Pa.  St.  332. 

109.  Agreement  that  subscription 
should  be  payable  in  trork  or  matc- 
rialSt— Evidence  that  it  was  agreed  thut 


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SUBSCRIPTIONS  TO  STOCK,  110-112 


defendant  sh^'^/id  work  out  the  price  of  the 
■ubscriptiont  of  others  ai  well  as  his  own  is 
properly  excluded  where  he  lias  failed  to 
prove  that  he  worked  out  his  own  subscrip- 
tlon.  Boy/*  v.  Crawfordsvillt,  F.  &*  Ft.  W. 
J?.  Co.,  1 8  Ind.  457. 

In  a  subscription  to  stock  the  covenant 
was  to  pay  money  on  call.  In  a  suit  there- 
for defendant  offered  to  prove  an  oral 
agreement  that  he  might  pay  in  labor  and 
materials,  without  offering  to  show  tiiat  he 
attempted  to  ascertain  when  and  where  he 
could  do  so,  or  had  made  a  tender  tiiereof. 
Htld,  that  the  offer  was  not  admissible. 
McClurt  V.  People's  Freight  R.  Co.,  i  Am. 
&*  Eng.  R.  Cas.  371,  go  Pa.  St.  269. 

110.  Secondary  evidence— A  writ- 
ten subscription  to  stock  in  a  company 
was  shown  by  parol  evidence  to  have 
been  conditional.  Notice  had  been  given, 
and  an  order  of  court  made,  to  obtain  the 
production  of  the  subscription  on  the  trial ; 
but  it  was  not  produced.  Tlie  question  as 
to  the  admissibility  of  such  evidence  was 
not  presented  in  tliis  court,  //e/d,  that  the 
evidence  was  entitled  to  full  weight.  Jewett 
V.  Lawrenceburgh  &*  U.  M.  R.  Co.,  10  Jttd. 
539.— Distinguished  in  McAllister  v.  In- 
dianapolis &  C.  R.  Co.,  15  Ind.  II. 

Evidence  of  the  loss  of  a  subscription 
book,  so  as  to  let  in  secondary  evidence  of 
the  fact  of  subscription,  is  for  the  court  and 
not  for  the  jury.  Proof  of  diligent  search 
and  inquiry  by  the  proper  custodian  is  suf- 
ficient to  let  in  secondary  evidence,  unless 
the  book  be  traced  to  other  hands.  Graff 
V.  Pittsburgh  &*  S.  R.  Co.,  31  Pa.  St.  489. 

111.  Varying  written  evidence 
by  parol.— Where  it  appears  that  defend- 
ant, by  putting  his  name  to  a  blank  paper, 
authorized  the  secretary  of  a  meeting  to 
subscribe  for  stock  for  him,  and  the  name 
was  subsequently  transferred  to  the  subscrip- 
tion books  of  the  company,  without  further 
authority,  he  may  show  by  parol  evidence 
that  he  authorized  the  subscription  only  on 
certain  conditions.  Tonica  &*  P.  R.  Co.  v. 
Stein,  21  ///.  96. 

A  parol  promise  to  construct  a  branch 
road  cannot  be  proven  as  a  part  of  the  writ- 
ten contract  of  subscription  to  the  main 
road,  and  hence  the  money  paid  on  such 
subscription  cannot  be  recovered  on  the 
ground  of  a  breach  of  contract.  McAllister 
V.  Indianapolis  4-  C.  R.  Co.,  15  Ind.  11.— 
Distinguishing  Jewett  v.  Lawrenceburgh 
&  U.  M.  R.  Co.,  10  Ind.  539. 


The  defendant,  in  an  action  by  a  corpora- 
tion for  assessments  upon  shares  subscribed 
for  by  him,  may  not  introduce  parol  evi- 
dence to  show  that  his  subscription  was 
upon  a  condition  not  expressed  in  the  writ- 
ing. Kennebec  &*  P.  R.  Co.  v.  Waters,  34 
Mt.  369. 

Where  a  subscription  in  writing  lO  the 
stock  of  a  company  provides  that  the  road 
is  to  run  on  the  east  side  of  a  creek,  oral 
testimony  is  not  admissible  to  show  the 
meaning  of  the  paper,  the  words  not  being 
susceptible  of  a  double  signification,  nor 
applicable  to  more  than  one  subject.  Caro- 
Una,  C.  G.  &*  C.  R.  Co.  v.  Seigler,  24  So. 
Car.  124. 

Evidence  of  the  location  of  defendant's 
lands,  if  intended  to  show  that  the  subscrip- 
tion was  made  with  the  understaniing  that 
the  road  was  to  run  by  these  lands,  is  in- 
competent, because  it  adds  claims  to  the 
written  paper ;  and  if  not  so  intended,  it  is 
irrelevant.  Carolina,  C.  G.  S*  C.  R.  Co.  v. 
Seigler,  24  So.  Car.  124. 

Evidence  of  the  location  of  lands  through 
which  defendant  and  others  had  given  a 
right  of  way,  and  the  nature  of  the  country 
through  which  one  of  the  surveys  ran.  is 
improper.  Carolina,  C.  G.  &*  C.  R.  Co.  v. 
Seller,  24  So.  Car.  1 24. 

Declarations  of  the  president  of  the  com- 
pany at  the  time  of  a  part  payment  by  de- 
fendant on  his  subscription  may  be  proved 
to  explain  the  payment,  but  cannot  be  used 
to  affect  a  written  paper  of  subscription. 
Carolina,  C.  G.  6-  C.  R.  Co.  v.  Seller,  24  So. 
Car.  124. 

Defendant,  a  subscriber  to  stock  in  plain- 
tiff company,  gave  his  note  for  certain 
assessments  thereon,  "for  value  received, 
payable  to  the  order  of  Samuel  Henshaw, 
treasurer,"  etc.  Held:  (i)  that  plaintiff 
might,  by  parol  evidence,  show  that  it  is 
tlie  person  from  whom  the  consideration 
moved,  and  to  whom  the  note  was  in  fact 
given ;  (2)  that  an  action  might  be  sus- 
tained upon  the  note  in  the  name  of  the 
corporation ;  (3)  that  in  declaring  upon  the 
note  it  was  not  necessary  for  plaintiff  to 
allege  in  the  declaration  that  the  note  was 
made  payable  to  it,  by  the  name  of  its  t.sas- 
urer.    Rutland  &*  B.  R.  Co.  v.  Cole,  24  Vt.  33. 

112.  Documentary  evidence.  — In 
an  action  of  assumpsit  on  a  subscription  to 
stock,  and  a  trial  upon  the  general  issue, 
plaintiff  proved  by  a  secretary  that  certain 
books  came  into  bis  possession  from  his 


SUBSCRIPTIONS  TO  STOCK,  113. 


769 


predecessor  as  books  of  the  company,  one 
of  which  contained  subscriptions  to  stock 
and  the  other  contained  proceedings  of 
meetings.  Certain  entries  we.r  admitted 
in  evidence.  The  subscription  cook  con- 
tained resolutions  of  the  directors  ftzing  the 
amount  of  shares,  the  terms  ol  payment, 
etc.  To  these  the  declaration  averred  that 
defendant  placed  his  signature  with  the 
number  of  shares  he  desired.  He/d:  (i)  that 
the  proof  of  the  identity  of  the  instrument 
offered  in  evidence  with  that  declared  on 
was  sufficient,  if  such  proof  was  at  all  nec- 
essary ;  (2)  that  under  the  issue  proof  of  the 
execution  of  tlie  instrument  was  not  neces- 
sary. Breidlovt  v.  Martinsville  &*  F.  R. 
Co.,  12  Ind.  114. 

Where  persons  attend  a  public  meeting 
held  for  the  purpose  of  procuring  subscrip- 
tions to  a  railroad,  and  authorize  the  per- 
sons conducting  the  meeting  to  write  their 
names  on  a  memorandum  or  paper  as  sub- 
scribers, and  the  persons  writing  them  down 
are  authorized  to  transfer  the  names  to  a 
regular  subscription  book,  such  book  is  ad- 
missible in  evidence  without  accounting  for 
the  loss  or  absence  of  the  memorandum. 
Iowa  6-  M.  R.  Co,  v.  Perkins,  28  Iowa  281. 
—Distinguished  in  Peoria  &  R.  I.  R.  Co. 
V,  Preston,  35  Iowa  115. 

The  records  kept,  by  the  clerk  of  a  rail- 
road corporation,  of  the  proceedings  of  the 
directors,  in  ordering  assessments  on  the 
shares  of  the  capital  stuck,  may  be  used  as 
evidence  by  the  corporation  in  a  suit 
brought  by  it  to  recover  an  assessment  on 
the  shares  subscribed  for  by  the  defend- 
ant, he  being  one  of  the  original  grantees 
in  the  charter,  and  a  director  at  the  time 
the  assessment  was  ordered,  and  having  ex- 
ercised the  privilege  of  a  stockholder  by 
virtue  of  the  shares  on  which  the  assess- 
ment was  made.  White  Mountains  R.  Co. 
V.  Eastman,  34  N.  H.  124. 

The  books  of  a  corporation  are  com- 
petent evidence  against  a  corporator  to 
prove  the  amount  of  the  instalments  as 
well  as  the  calls.  Bavington  v.  Pittsburgh 
6-  S.  R.  Co.,  34  Pa.  St.  358. 

A  stock  ledger  and  a  shareholders'  list, 
kept  by  the  company,  and  a  memorandum 
made  by  an  agent  appointed  by  the  com- 
pany to  collect  quotas  due  from  subscribers, 
showing  the  names  subscribed,  which  stock 
ledger  and  shareholders'  list  were  shown  to 
have  been  subsequently  compiled  from  such 
memorandum  and  from  many  original  sub- 
7  D.  R.  D.— 49 


scription  lists,  are  competent  evidence  for 
plaintiff  company  in  an  action  to  recover  on 
a  subscription  to  stock.  Stuart  v.  Valley 
R.  Co.,  32  Graft.  {Va.)  146. 

In  such  case  it  is  not  competent  to  propose 
to  prove  that  before  the  ledger  list  and 
memoranda  were  in  existence  defendant 
had,  by  withdrawal  of  his  proposal  to  sub- 
scribe, accepted  and  acted  upon  by  plaintiff, 
ceased  to  occupy  any  relation  of  contract  or 
subscription  to  plaintiff.  Stuart  v.  Valley 
R.  Co.,  32  Gratt.  (Va.)  146. 

In  an  action  for  calls,  in  order  to  show 
that  the  defendant  is  a  proprietor  it  is  in- 
cumbent on  the  company  to  produce  the 
book  required  to  be  kept  by  the  company 
for  the  entry  of  names  and  additions  of  the 
proprietors,  with  the  number  of  shares  they 
are  entitled  to,  in  addition  to  the  book  re- 
quired to  be  kept  by  another  clause  of  the 
act  in  which  were  to  be  entered  the  names 
and  places  of  abode  of  the  persons  entitled 
to  shares.  London  &*  B.  R.  Co.  v.  Fair* 
dough,  3  Scott  N.  R.  68,  2  M.  &*  G.  674,  2 
Raihv.  Cas.  544.  London  G.  J.  R.  Co,  v. 
Freeman,  2  Scott  N.  R.  705,  2  M.  &*  G.  607, 
2  Railw.  Cas.  468.  London  G.J.  R.  Co.  v. 
Graham,  2  Railw.  Cas.  870,  i  Q.  B,  271, 

113.  Variance.— Where  a  declaration 
on  a  subscription  to  stock  descrihss  the 
contract  as  containing  the  ordinary  dollar 
mark  prefixed  to  the  figures  500.00  set  op- 
posite to  defendant's  name,  a  contract  with- 
out such  mark  prefixed  to  the  figures  or  to 
any  in  the  column,  and  where  there  is 
nothing  in  the  instrument  to  indicate  that 
the  sum  opposite  defendant's  name  meant 
so  many  dollars,  is  variant  from  that  de- 
clared on.  and  i*  not  admissible  in  evidence. 
Jacksonville,  N.  W,  &•  S,  E,  R.  Co.  v.  Brown, 
67  ///.  201. 

In  such  case  the  fact  that  defendant  had 
given  his  note  for  fifty  dollars,  which  stated 
that  it  was  for  ten  per  cent,  of  his  subscrip- 
tion, is  not  sufficient  to  avoid  the  variance. 
If  plaintiff  had  declared  generally  in  the  in- 
debitatus counts,  for  calls  due,  and  proved 
the  execution  of  the  instrument,  the  in- 
debtedness might  have  been  established  by 
the  recital  in  the  note.  Jacksonville  N. 
W.  &*  S.  E.  R,  Co.  V.  Brown,  67  ///.  201. 

Where  a  former  judgment  is  pleaded  to 
a  suit  on  a  stock  subscription  of  fourteen 
shares,  it  is  not  competent  to  show  two 
subscriptions  aggregating  fourteen  shares. 
Hanes  v.  Dayton  &*  S.  E,  R.  Co.,  40  OAio 
St.  95. 


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SUBSCRIPTIONS  TO  STOCK,  114-116. 


'  ■    f! 


It  it  not  error  to  admit  in  evidence  a  con- 
tract of  lubscription  varying  from  that  de- 
clared upon,  where  it  worlcs  no  injury  to 
defendants,  who  are  otherwise  proved  liable 
by  acts  of  participation  in  the  company's 
affairs,  such  as  voting,  acting  as  directors, 
jud(;cs,  etc.,  and  by  active  exertions  to  ob- 
tain a  municipal  subscription  on  the  faith  of 
a  subscription  certified  to  have  been  made 
by  the  parties  so  acting.  I/ays  v.  Pittsburgh 
*•  S.  Ji.  Co.,  38  Pa.  St.  81. 

Such  acts  are  not  merely  evidence  of  an 
original  subscription,  but  are  conclusive, 
amounting  to  an  estoppel  upon  the  parties 
against  denying  it.  It  is  primary  and  not 
secondary  evidence.  Najfs  v.  Pittsburgh  &» 
S.  Ji.  Co.,  38  Pa.  St.  81. 

6.  Dtfensts.* 
a.  Abandonment  or  Delay  of  Enterprise. 

1 14.  Abandonment,  wlien  releasef* 
■ubscriber.— Proof  that  a  railroad  com- 
pany has  abandoned  the  construction  of  its 
line  is  sufficient  to  defeat  an  action  to  re- 
cover unpaid  subscriptions  to  its  stock ;  and 
it  is  for  the  jury  to  determine  whether,  under 
the  evidence,  the  company  has  abandoned 
the  construction.  Delawart  River  &*  L,  Ji. 
Co.  v.  Rowland,  (Pa.)  30  Am.  &*  Etig.  R.  Cas. 
524,  9  Atl.  Rep.  929. 

As  to  how  far  the  abandonment  of  a  road 
is  a  defense  to  an  action  to  collect  a  sub- 
scription to  stock,  generally,  see  Montgom' 
try  Southern  R.  Co.  v.  Matthews,  24  Am.  &* 
Eng.  R.  Cas.  9,  77  A/a.  367.  Illinois  G.  T. 
R.  Co.  V.  Cook,  29  ///.  237.  Morgan  County 
V.  Thomas,  it  III.  120.  Taggart  v.  Western 
Md.  R.  Co.,  24  Md.  563.  Miller  v.  Pitts- 
burgh &*  C.  R.  Co.,  40  Pa.  St.  237. 

115. when  not  a  release.— The 

fact  that  a  railroad -has  been  abandoned 
furnishes  no  defense  to  subscribers  to  stock, 
as  against  the  creditors  of  tlie  corporation 
who  are  pursuing  the  stockholders  for  tlie 
debts  of  the  corporation.  The  stockholders 
may  be  liable  in  such  case  after  the  corpo- 
rate existence  has  ceased.  Bish  v.  Brad- 
ford, 17  Ind.  490. 

The  act  incorporating  a  company  required 
it  to  commence  work  in  sections  as  nearly 
simultaneously  as  might  be,  and  pointed 
out  where  the  sections  should  begm,  and  in 
what  direction  the  work  should  be  carrie:! 


*  Defenses  to  actions  on  sabscriptions, 
note,  I  Am.  &  Eno.  R.  Cas.  377. 


;>ee 


on.  It  contained  a  proviso  that  the  stock 
subscribers  in  each  parish  or  corporation, 
or  a  majority  in  amount,  should  have  the 
right  to  designate  on  what  section  of  the 
road  they  desired  their  subscriptions  to  be 
used.  Defendant,  when  sued  for  his  sub- 
scription, offered  to  prove  that  the  company 
had  abandoned  work  on  one  section,  and 
had  determined  to  appropriate  the  funds  of 
the  company  to  work  on  another  section. 
Held,  that  the  evidence  was  properly  re- 
jected, for  the  defense  set  up  could  not 
avail  defendant.  Vicksburg,  S,  &*  T.  R, 
Co.  v.  McKean,  12  La.  Ann.  638. 

Subscribers  to  stock  gave  their  notes  for 
the  amounts  payable  wlicn  the  road  should 
be  completed,  but  were  subsequently  in- 
duced to  take  up  these  notes,  and  give  new 
ones  payable  in  four  years,  in  order  to  en- 
able the  company  to  carry  out  a  contract 
for  the  completion  of  the  road,  and  upon  a 
confident  and  honest  expression  of  opinion 
by  its  officers  tliat  if  they  would  do  so  the 
road  would  be  completed  under  such  con- 
tract in  less  thi  n  four  years.  Held,  that  the 
subscribers  were  liable  on  the  new  notes, 
although  the  contract  was  abandoned  before 
anything  had  been  done  under  it,  and  the 
road  never  completed.  Four  Mile  Valley  R. 
Co.  V.  Bailey,  18  Ohio  St.  208. 

It  is  no  defense  to  an  action  on  a  sub- 
scription to  stock  that  the  company  has  not 
completed  the  road  in  its  entirety,  nor  that 
it  has  abandoned  a  part  of  the  enterprise, 
when  no  condition  to  that  ef!ect  is  expressed 
in  the  subscription.  Armstrong  v.  Karsh- 
ner,  44  Am.  6^  Eng.  R.  Cas.  238,  47  Ohio 
St.  276,  24  AT.  E.  Rep.  897. 

110.  Delay,  when  a  defense.— 
Where  subscriptions  are  made  to  a  company 
which  is  limited  by  its  charter  to  a  definite 
time  for  building  its  road,  the  subsequent 
extension  of  the  time  by  the  legislature  will 
not  impair  or  release  the  subscriptions,  un- 
less such  a  release  is  made  a  condition  of 
the  extension  and  accepted  by  the  company. 
/acks  V.  Helena,  41  Ark.  213. 

In  order  that  delay  in  the  completion  of 
a  road  may  be  available  as  a  defense  to  a 
promissory  note  given  upon  a  subscription 
for  shares,  the  time  of  completion  must  be 
shown  to  have  been  a  condition  agreed 
upon  by  the  parties  as  a  term  of  the  sub- 
scription. Jefferson  v.  Hewitt,  95  Cal.  535, 
30  Pac.  Rep.  772. 

If  a  company  abandons  the  undertaking, 
and  refunds  some  of  the  subscriptions,  the 


:' 


i  . 


SUBSCRIPTIONS  TO  STOCK,  117-110. 


771 


other  subMriberi  are  discharged.  Or  if  the 
undertalcing  be  not  commenced,  bona  fidt, 
within  the  period  prescribed  by  tlie  charter, 
no  action  can  be  maintained  for  a  subscrip- 
tion. McCully  V.  Pittsburgh  &*  C  R.  Co.,  yx 
Pa.  St.  as. 

A  subscriber  who  has  been  released  from 
liability  by  tlie  neglect  of  the  company  is 
not  again  rendered  liable  by  giving  an  in- 
complete letter  of  attorney  to  vote  on  a 
question  of  accepting  a  supplement  to  the 
charter  and  any  subscription  that  might  be 
tendered  for  stocl<  in  the  road.  McCully  v. 
Pittsburgh  &*  C.  Ji.  Co.,  32  Pa.  St.  25. 

Texas  Act  of  1885,  which  provides  that 
"  All  limitations  as  to  the  time  within  which 
any  part  of  any  railroad  shall  be  con- 
structed *'*''*'  sliall  be  suspended  unti'  Janu- 
ary I,  1887,"  cannot  have  the  effect  of  au- 
thorizing a  company,  whose  charter  had 
been  forfeited  prior  to  the  passage  of  such 
act  by  a  failure  to  commence  the  construc- 
tion of  its  road  within  the  statutory  period, 
to  maintain  an  action  against  a  subscriber  to 
its  stock,  such  subscriber  being  presumed  to 
have  contracted  with  reference  to  the  law  in 
force  at  the  date  of  his  subscription,  and  the 
legislature  being  without  power  to  revive 
an  obligation  which  has  lapsed.  Bywaters 
V.  Paris  **  C.  N.  R.  Co.,  38  Am.  &*  Etig.  R. 
Cas.  498,  73  Tex.  624,  \t  S.  IV.  Rtp.  856. 

117.  and  when  not.— An  agree- 
ment between  a  company  and  a  subscriber 
to  stock  that  the  latter  should  not  be  re- 
quired to  pay  his  subscription  until  all  the' 
stock  was  subscribed,  and  that  if  the  road 
should  not  be  built  within  a  certain  time 
he  should  not  be  required  to  pay  it  at  all, 
would,  it  seems,  be  a  fraud  upon  other 
stockholders  who  subscribed  upon  less  fa- 
vorable terms ;  and  such  an  agreement  ought 
not  to  be  enforced.    Foy  v.  Blackstone,  31 

///.  538. 

Where  a  county  subscribes  to  railroad 
stock,  the  fact  that  the  road  was  not  com« 
pleted  within  a  certain  time  is  not  a  defense 
to  an  action  on  the  subscription,  where 
there  is  no  evidence  that  time  was  of  the 
essence  of  the  contract,  and  the  road  is 
built  and  the  expected  advantage  to  the 
county  is  derived  therefrom.  Kansas  City, 
St.  J.  d*  C.  B.  R.  Co.  V.  Alderman,  47  Mo. 
349.— Approved  in  Nicolay  v.  St.  Clair 
County,  3  Dill.  (U.  S.)  163.  Followed  in 
State  ex  rel.  v.  Nodaway  County  Court,  48 
Mo.  339:  Smith  V.  Clark  County,  54  Mo.  $8 ; 
Rails  Cootttjr  V.  Douglaks,  105  17.  S.  728. 


If  a  subscriber  consents  to  the  refunding 
of  some  of  the  subscriptions,  and  to  a 
delay  in  commencing  the  road,  as  matters 
of  corporate  policy,  which  are  not  to  af- 
fect his  liability  as  a  subscriber,  he  will  be 
estopped  from  setting  up  tliese  matters  as  a 
defense.  McCully  v.  Pittsburgh  6-  C.  R. 
Co.,  iiPa.  St.  25. 

b.   Change  in  Charter,  Name,  Route,  Ter- 
mini, etc. 

118.  In  general.  —  A  subscriber  to 
stock  is  only  released  by  a  subsequent  funda* 
mental  change  in  the  organization  or  pur- 
poses of  the  company,  and  when  such 
change  is  not  provided  for  or  contemplated 
eitlier  by  the  general  law  of  tiie  state  or 
the  charter  when  the  subscription  is  made. 
Nugent  V.  Putnam  County  Sup'rs,  19  Walt. 
{U.  5.)  241.— Distinguished  in  Nocsen  v. 
Port  Washington,  37  Wis.  168.  Followed 
in  Washburn  v.  Cass  County,  3  Dill.  (U.  S.) 
251.  Reviewed  in  State  ex  rel.  v.  Gar- 
routte,  67  Mo.  445. 

Where,  in  a  suit  to  recover  assessments, 
the  defense  is  that  the  corporation  has  ac- 
cepted from  the  legislature  an  amendment 
which  radically  alters  the  original  charter, 
to  constitute  this  a  good  defense  the  defend- 
ant must  show  afhrmaiively  that  he  dissent- 
ed from  such  an  alteration  in  a  reasonable 
time,  before  any  debts  had  been  contracted, 
or  rights  had  accrued  to  third  parties  under 
such  alteration ;  and  it  is  not  incumbent 
upon  the  corporation  to  show  his  assent  in 
order  to  be  able  to  maintain  the  action. 
Martin  v.  Pensacola  6-  G.  R.  Co.,  8  Fla.  370. 

If  a  company  ceases  to  prosecute  work  in 
the  construction  of  its  road,  or  attempts  to 
misapply  its  funds,  or  makes  a  radical 
change  so  as  to  constitute  it  a  different  cor- 
poration, for  the  attainment  of  other  pur- 
poses than  that  to  which  the  subscription 
was  made,  a  subscriber  to  its  stock  is  re- 
leased, and  may  enjoin  the  company  from 
collecting  subscriptions  given  to  the  original 
undertaking.  Illinois  G.  T.  R.  Co.  v.  Cook, 
29  ///.  237. 

If  a  statute  in  force  at  the  time  a  sub- 
scription to  stock  is  made  authorizes  an 
extension  of  the  road,  the  subsequent  exer- 
cise of  such  power  by  the  company  will  not 
affect  the  subscription.  Jewett  v.  Valley  R. 
Co.,  34  Ohio  St.  601,  21  Am.Ry.  Rep.  21. 

119.  What  is  such  a  change  in  the 
charter  as  will  release  the  subscrib- 
ers.—If  a  subscriber  to  stock  enters  gen- 


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772 


SUBSCRIPTIONS  TO  STOCK,  120. 


crally  into  a  corporation,  without  specific 
stipulations,  he  is  bound  and  concluded  by 
the  action  of  a  majority  of  the  corporation, 
and  if  the  legislature  amends  the  charter 
with  the  assent  of  the  company,  he  will  not 
be  thereby  discharged  from  his  liability  for 
his  subscription  for  stock  made  previous  to 
the  amendment.  But  if  the  subscription  is 
of  such  a  character,  and  the  change  is  of 
such  a  nature  as  to  increase  the  amount 
which  he  was  originally  bound  to  pay  by 
virtue  of  his  subscription,  it  will  absolve 
him  from  his  contract  and  liability.  Dela' 
7vare  R.  Co.  v.  Tharp,  i  Houit.  (Del.)  149. 

Where  a  company  is  incorporated  to 
build  a  railway  across  the  state,  as  a  contin- 
uous project  under  one  management,  with  a 
common  interest,  if  the  charter  is  afterwards 
amended  so  as  to  divide  the  project  into 
three  parts  to  be  under  separate  control, 
thereby  destroying  the  unity  of  interest, 
and  there  is  no  proper  acceptance  of  the 
change  of  the  charter,  subscribers  to  stock 
will  be  released.  Fulton  County  Sup'rs  v. 
Mississippi &•  W.  R.  Co.,  21  III.  338.— Dis- 
tinguishing Banet  v.  Alton  &  S.  R.  Co., 
13  III.  504;  Sprague  v.  Illinois  River  R.  Co., 

19  111.  174;  Illinois  River  R.  Co.  v.  Zimmer, 

20  111.  654. 

The  relation  between  a  corporation  and 
a  stockholder  is  one  of  contract,  and  any 
legislative  enactment  which,  without  the 
assent  of  the  stockholder,  authorizes  a  ma- 
terial change  in  the  powers  or  purposes  of 
the  corporation,  not  in  aid  of  its  original 
object,  is  not  binding  upon  him.  Sparrow 
V.  Evansvillf  &•  C.  Ji.  Co.,  7  Ind.  369.— RE- 
VIEWING ftevens  v.  Rutland  &  B.  R.  Co., 
29  Vt.  545. — McCray  v.  Junction  R.  Co., 
9  Ind.  358.  Kenosha,  R.  &•  R.  I.  R.  Co. 
v.  Marsh,  17  Wis.  13.— Reviewing  Banet  v. 
Alton  &  S.  R.  Co.,  13  111.  504.  Reviewing 
AND  DISTINGUISHING  Oliver  Lee  &  Co.'s 
Bank,  3i  N.  Y.  20.— Reviewed  and  fol- 
lowed IN  Ncesen  v.  Port  Washington,  37 
Wis.  168. 

After  the  instalments  of  stock  sued  for 
became  due,  and  before  suit,  the  company 
altered  its  charter,  by  adding  a  power  to 
purchase  steamboats,  etc.  Held,  that  the 
subscriber  was  not  liable,  having  given  no 
assent  to  the  alteration.  Hartford  &*  N, 
H.  R.  Co.  v,  Croswell,  5  Hill  (N.  Y.)  383. 
—Approved  in  Winter  v.  Muscogee  R.  Co., 
II  Ga.  438 ;  Stevens  v.  Rutland  &  B.  R.  Co., 
29  Vt.  545.  Disapproved  in  Pacific  R.  Co. 
V.  Hughes,  22  Mo.  291.    Distinguished 


m  Buffalo  &  N.  Y.  C.  R.  Co.  v.  Dudley,  14 
N.  Y.  336;  White  v.  Syracuse  &  U.  R.  Co., 
14  Barb.  (N.  Y.)  559;  Buffalo,  C.  &  N.  Y.  R. 
Co.  V.  Pottle,  23  Barb.  21  ;  Greenville  &  C. 
R.  Co.  V,  Coleman,  5  Rich.  (So.  Car.)  118. 
Explained  in  Carlisle  v.  Terre  Haute  &  R. 
R.  Co.,  6  Ind.  316.  Reconciled  in  North- 
ern R.  Co.  V.  Miller,  10  Barb.  260.  Re- 
viewed in  New  Haven  &  D.  R.  Co.  v. 
Chapman,  38  Conn.  56 ;  Troy  &  R.  R.  Co, 
V.  Kerr,  17  Barb.  581. 

By  a  supplement  to  an  act  incorporating 
an  iron  and  railroad  company,  the  name  of 
the  company  was  changed,  authority  was 
given  to  purchase  and  cancel  the  original 
stock,  and  the  main  purpose  of  the  new 
company  was  to  be  that  of  a  general  trans- 
portation company.  Held,  that  it  was  a  fair 
question  for  the  jury  whether  a  combina- 
tion to  change  the  fundamental  purpose  of 
the  original  act  by  the  supplement,  and  *.o 
divert  the  stock  of  an  original  subscriber  to 
this  new  end,  was  not  a  fraud  upon  him; 
and  if  they  so  found,  an  action  for  the 
amount  of  this  original  subscription  could 
not  be  sustained.  Southern  Pa.  I.  &•  R.  Co 
V.  Stevens,  87  Pa.  St.  190. 

120.  What  change  or  amendment 
will  not  release  a  subscriber.— An  act 
of  the  legislature  amending  a  charter,  to  be 
binding  on  all  the  stockholders,  must  be 
accepted  by  a  vote  of  a  majority  of  the 
stock,  at  a  regular  meeting.  So  a  plea  by  a 
stockholder  to  an  action  on  his  subscrip- 
•  tion.  which  sets  up  a  statute  changing  the 
charter  as  to  the  location  of  the  road,  is  bad 
on  demurrer  when  it  does  not  show  that 
the  amendment  was  so  accepted  as  to  be 
binding  on  the  corporation.  Mississippi,  O. 
&'  R.  R.  R.  Co.  V.  Caster,  24  Arh.  96. 

An  amendment  to  a  charter,  after  indi- 
viduals have  subscribed  to  stock,  giving  to 
a  city  a  right  to  subscribe  $200,000  to  the 
stock,  and  to  appoint  two  directors  with  a 
certain  number  of  votes,  is  not  such  change 
as  to  relieve  the  individuals  from  their  sub- 
scriptions. New  Haven  &*  D.  R.  Co.  v.  Chap- 
man, 38  Conn.  56,  4  Am.  Ry  Rep.  i. — Quot- 
ing Buffalo  &  N.  Y.  C.  R.  Co.  v.  Dudley,  14 
N.  Y.  336.  Reviewing  Hartford  &  N.  H.  R. 
Co.  V.  Croswell,  5  Hill  (N.  Y.)  383;  Troy 
&  R.  R.  Co.  V.  Kerr,  17  Barb.  (N.  Y.)  581. 

Where  a  subscriber  agrees  to  be  subject 
to  such  rules  and  regulations  as  may  be 
adopted  from  time  to  time,  he  is  not  re- 
leased from  payment  because  the  charter  is 
subsequent]|y  amended  and  accepted  by  the 


SUBSCRIPTIONS  TO  STOCK,  120. 


773 


company,  reducing  the  length  of  notice  to 
be  given  to  subscribers.  Illinois  River  R. 
Cp.  v.  Beers,  rj  III.  185. 

An  amendment  to  a  charter  which  makes 
certain  changes  as  to  the  termination  of  the 
railroad,  and  confers  additional  powers  upon 
the  company  not  only  to  build  branches, 
but  also  to  issue  new  stock,  does  not  dis- 
charge subscribers  to  its  stock.  Pacific  R. 
Co.  V.  Hughes,  22  Mo.  291.— Following 
Pacific  R.  Co.  v.  Renshaw,  18  Mo.  210.— 
Disapproved  in  Zabriskie  v.  Hackensack 
&  N.  Y.  R.  Co.,  18  N.  J.  Eq.  178. 

When  legislative  changes  in  a  charter  of 
incorporation  of  a  railroad  are  such  as  con- 
sist only  of  an  increase  of  the  corporate 
powers,  or  of  a  different  organization  of  the 
corporate  body,  leaving  it  with  lawful  power 
to  execute  what  may  be  considered  as  sub- 
stantially the  original  objects  of  its  crea- 
tion, one  who  has  previously  subscribed  to 
the  stock  of  said  railroad  company  cannot 
set  up  such  changes  as  a  defense  at  law  to 
an  action  for  calls  upon  such  subscription 
of  stock.  The  remedy,  if  any,  is  in  equity. 
Pacific  R.  Co.  V.  Hughes,  22  Mo.  291. — Dis- 
approving Hartford  &  N.  H.  R.  Co.  v. 
Croswell,  5  Hill  (N.  Y.)  385;  Winter  v. 
Muscogee  R.  Co.,  11  Ga.  451;  Banet  v. 
Alton  &  S.  R.  Co.,  13  III.  505.  Distin- 
guishing G:  .iville  &  C.  R.  Co.  v.  Cole- 
man, 5  Rich.  (So.  Car.)  140. 

Defendant  subscribed  for  stock  in  a  com- 
pany which  was  organized  with  a  capital  of 
$1,500,000  Subsequently  the  articles  oi  as- 
sociation were  amended  so  as  to  reduce  the 
amount  of  stock  to  $325,000,  and  one  termi- 
nus of  the  road  was  so  changed  as  *o  shorten 
the  entire  distance  nearly  one  haif.  The 
company  also  transferred  a  part  of  its  road 
and  leased  the  remainder  during  the  contin- 
uance of  its  charter.  Held,  that  this  did  not 
release  defendant.  Troy  &*  R.  R.  Co.  v. 
Kerr,  17  Barb.  (N.  K.)  581. —  Reviewing 
Hartford  &  N.  H.  R.  Co.  v.  Croswell,  5  Hill 
(N.Y.)383. 

Where  the  power  Is  reserved  to  alter  or 
amend  a  charter,  a  subsequent  legislative 
amendment  changing  the  name  of  the  com- 
pany, increasing  its  capital,  and  extending 
the  road,  does  not  release  a  subscriber;  and 
this  is  so  whether  the  alteration  is  beneficial 
to  the  defendant  or  not,  where  it  is  duly 
made  without  fraud  on  the  part  of  the  com- 
pany. Buffalo  &'N.  Y.  C.  R.  Co.  v.  Dudley, 
14  A''.  V.  336.  —  Distinguishing  Hartford 
*  N.  H.  R.  Co.  V.  Croswell,  5  Hill  (N.  Y.)  3S3. 


A  change  in  the  charter  of  a  company  by 
which  it  is  authorized,  for  the  purpose  of 
raising  means  to  make  and  equip  the  road 
as  originally  contemplated,  to  issue  pre- 
ferred stock,  and  which  amendment  is  ac- 
cepted by  a  majority  of  the  stockholders, 
and  such  preferred  stock  issued,  is  not  such 
a  radical  change  in  the  structure  and  objects 
of  the  company  as  "will  exonerate  from 
liability  an  original  stockholder.  Everhart 
v.  West  Chester  &*  P.  R.  Co.,  28  Pa.  St.  339. 

After  subscribing  for  stock  under  the  act 
of  assembly  which  required  subscriptions  to 
a  certain  amount  before  corporate  authority 
should  be  granted,  a  subsequent  act  was 
passed  reducing  the  amount  of  subscriptions 
required,  under  which  the  company  was 
organized.  Held,  that  the  change  would 
not  release  from  liability  a  subscriber  who 
had  also  voted  at  the  organization,  and 
for  the  election  of  directors,  in  right  of  his 
subscription ;  and  in  an  action  by  the  com- 
pany against  such  stockholder  for  the  sum 
subscribed,  it  was  error  to  instruct  the  jury 
that  defendant  was  relieved  by  the  change 
if  he  did  not  know  of  it,  and  to  refer  the 
question  of  his  knowledge  to  them.  Bed- 
ford R.  Co.  v.  Bowser,  48  Pa.  St.  29. 

Where  part  of  a  railroad  is  sold  under  a 
mortgage,  and,  under  an  act  of  reorganiza- 
tion, a  new  company  is  organized  which  is 
only  bound  to  build  the  part  sold,  a  sub- 
scriber to  the  stock  of  the  new  company 
cannot  defeat  his  subscription  because  the 
road  is  not  built  to  the  terminal  points  as 
fixed  by  the  original  charter.  Chartiers  R. 
Co.  V.  Hodgens,  85  Pa,  St.  501. 

In  an  action  to  recover  the  amount  of  a 
railroad  subscription  it  appeared  that  de- 
fendant had  signed  a  subscription  paper, 
in  the  ordinary  form,  by  which  he  obligated 
himself  to  pay  the  amount  subscribed  in 
calls  according  to  the  provisions  of  the 
charter ;  that  at  the  time  of  such  subscrip- 
tion the  agent  of  the  company,  in  good 
faith,  represented  to  him  verbally  that  each 
stockholder  would  have  a  direct  vote  in  the 
selection  of  the  route,  and  that  this  was  the 
express  condition  upon  which  he  subscribed; 
that  afterwards,  by  an  almost  unanimous 
vote  of  the  stockholders,  and  pursuant  to 
an  amendment  of  the  charter,  it  was  agreed 
that  the  matter  of  locating  the  road  should 
be  decided  by  the  board  of  directors,  upon 
the  survey  of  the  engineer.  Held,  that  this 
nction  on  the  part  of  the  stockholders  did 
not  in  any  way  affect  the  obligation  uf  de- 


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774 


SUBSCRIPTIONS  TO  STOCK,  12t,  122. 


X. 


fcadant's  contract.    East  Ttnn.  &»  V. 
Co.  V.  Gammon,  5  Stutd  (T*mh.)  567. 

Subscriptions  to  stock  are  not  released  by 
amendments  to  tlie  company's  charter  which 
have  not  been  acted  upon  by  the  company. 
Taylor  v.  Grttnvillt  County  Sup'rs,  86  Va, 
506,  10  S.  E.  Rep.  433. 

Where  the  object  and  purpose  of  a  rail- 
road corporation  were  to  build  a  road  from 
a  certain  point  to  a  certain  other  point,  and 
it  has  caused  a  portion  of  its  road  to  be 
built,  and  transferred  to  anotiier  road  the 
right  to  operate  the  part  completed,  still 
retaining  all  its  rights  and  franchises  to 
build  the  other  portion  of  the  road,  it  can- 
not be  said  there  has  been  such  a  funda- 
mental and  radical  change  in  the  character 
of  the  original  purpose  and  object  of  the 
corporation  as  to  release  subscribers  to  the 
stock  of  the  corporation  who  did  not  assent 
to  such  change.  Lynch  v.  Eastern,  L.  F.  &* 
M.  R.  Co.,  12  Am.  &»  Eng.  R.  Cas.  652,  57 
IVts.  430,  1$  N.  W.  Rep.  743,  825. 

Where,  however,  as  in  this  case,  the  sub- 
scriber for  the  stock  contemplated  that  a 
change  would  be  made  in  the  objects  and 
purposes  of  the  corporation,  he  will  be  held 
to  Ins  subscription  notwithstanding  such 
change.  Lynch  v.  Eastern,  L.  F.  &*  M.  R. 
Co.,  12  Am.  &•  Eng.  R.  Cas.  652,  57  Wis. 
430,  15  A':  W.  Rep.  743,  825. 

PlaintiiT  sold  certain  land  to  railroad  con- 
tractors for  the  purposes  of  the  road.  By 
their  contract  the  contractors  took  a  num- 
ber of  shares  in  the  company  for  which  they 
did  not  receive  scrip  at  the  time,  but  which 
they  were  to  pay  for  in  work.  Plaintiff  re- 
ceived in  stock  the  price  agreed  on  for  the 
land,  and  the  certificate  for  the  shares  was 
given  to  her  by  defendants.  An  act  (16 
Vict.  c.  51)  was  subsequently  passed,  mak- 
ing material  alterations  in  the  charter  of 
the  company,  a  clause  of  which  provided 
thcit  any  original  shareholders  in  the  com- 
pany (the  contractors  and  some  others  ex- 
cepted) might  within  a  given  time  apply  for 
and  obtain  repayment  of  any  instalment  paid 
by  them  in  cash,  and  have  their  shares  can- 
celed. Held,  that  plaintiff  was  not  within 
the  meaning  of  this  proviso,  and  could  not 
claim  from  the  company  the  amount  of  her 
shares.  McDontll  v.  Ontario,  S.  &*  H.  R. 
U.  Co.,  II  U.C.  Q.B.  271. 

121.  Change  in  charter  granting 
flirther  privileges  or  franchises.  — 
An  amendment  to  the  company's  charter 
after  defendant  subscribed  for  stock,  author- 


izing it  to  extend  its  road,  and  otherwise  to 
assume  new  and  increased  responsibilities, 
does  not  release  him.  Rice  v.  Rod  L'land 
6*  A.  R.  Co.,  21  ///.  93.  —  Followed  in 
Terre  Haute  &  A.  R.  Co.  v.  Earp,  21  III.  290. 
—Peoria  &*  0.  R.  Co.  v.  Siting.  17  ///.  429. 

An  amendment  of  the  charter  or  act  of 
incorporation  which  merely  enlarges  the 
powers  of  the  corporation  without  materi- 
ally changing  its  original  purposes  will  not 
release  a  stockholder  from  its  original  ob- 
ligation. Peoria  &*  R.  /.  R.  Co,  v.  Preston, 
35  lowaw^,  5  Am.  Ry.  Rep.  7. 

The  mere  fact  that  a  company  has  ac- 
cepted an  amendment  to  its  charter  author- 
izing it  to  build  a  branch  road  will  nolper  se 
release  stockholders  who  have  not  consented 
to  the  amendment,  where  the  company  has 
taken  no  steps  to  appropriate  funds  to  build 
the  branch.  Hawkins  v.  Mississippi  &*  T. 
R.  Co., 35  Miss.  688.— Distinguishing  New 
Orleans,  J.  &  G.  N.  R.  Co.  v.  Harris.  27 
Miss.  517. 

An  alteration  in  the  charter  of  a  company, 
by  which  the  additional  privilege  is  given  to 
the  corporation  to  extend  its  road,  is  not 
such  an  invasion  of  the  contract  of  sub- 
scription as  will  relieve  the  subscriber  to 
the  stock  from  his  liability  to  pay.  Cross  v. 
Peach  Bottom  R.  Co.,  1  Am.  &-  Eng.  R.  Cas. 
366,  90  Pa.  St.  392.— Distinguishing  In- 
diana &  E.  Turnpike  Road  Co.  v.  Phillips,  2 
P.  &  W.  184;  Manheim,  P.  &  L.  Turnpike 
Co.  V.  Arndt,  31  Pa.  St.  317.  Following 
Gray  v.  Monongahela  Nav.  Co.,  2  Watts  & 
S.  156. 

A  stockholder  is  not  absolved  from  lia- 
bility to  pay  the  amount  of  his  subscriptions 
by  an  amendment  of  the  charter  procured 
without  his  consent  by  a  majority  of  the 
stockholders,  authorizing  the  company  to 
build  a  branch  road,  and  by  the  comp..:iy  s 
actually  building  it.  Greenville  &*  C,  P. 
Co.  V.  Coleman,  5  Rich.  (So.  Car.)  118. 

122.  Alteration  of  charter  reserv- 
ing the  power  of  alteration  or  repeal. 
— When  a  charter  contains  a  clause  author- 
izing the  legislature  to  repeal  or  alter  it,  an 
alteration  by  the  legislature,  made  on  the 
application  of  the  directors,  without  con- 
sulting the  stock  subscribers,  does  not  ab- 
solve the  latter  from  their  subscription. 
Northern  R.  Co.  v.  Miller,  10  Bard.  {JV.  V.) 
260.— Following  Hartford  &  N.  H.  R.  "^o. 
V.  Kennedy,  12  Conn.  500.  Reconciling 
Hartford  &  N.  H.  R.  Co.  v.  Croswell,  5 
Hill  (N.  Y.)  383.— Not  followed  in  Za- 


SUBSCRIPTIONS  TO   STOCK,  123-125. 


775 


briskie  v.  Hackensack  &  N.  Y.  R.  Co.,  i8  N. 
J.  Eq.  \7i.— Agricultural  Branch  R.  Co.  v. 
Witukesttr,  13  Allen  (Mass.)  29.  Mowrty 
V.  Indianapolis  &*  C.  R.  Co.,  4  Biss.(U.  S.) 
78.  Pacific  R.  Co.  V.  Rtnshaw,  18  Mo.  210. 
—Disapproved  in  Zabriskie  v.  Hackensack 
&  N.  Y.  R,  Co..  18  N.  J.  Eq.  178.  Follomjed 
IN  Pacific  R.  Co.  v.  Hughes,  22  Mo.  291. 

But  under  a  reserved  power  to  alter  and 
repeal,  the  legislature  may  not  change  the 
fundamental  character  of  a  corporation,  but 
its  general  objects  must  remain  the  same. 
Buffalo  &*N.  V.  C.  R.  Co.  v.  Dudley,  14  N.  Y. 
336.— Not  followed  in  Zabriskie  v.  Hack- 
ensack &  N.  Y.  R.  Co.,  18  N.  J.  Eq.  178. 
Quoted  in  New  Haven  &  D.  R.  Co.  v. 
Chapman,  38  Conn.  56. 

Where  articles  of  incorporation  restrict 
the  calls  of  stock  in  any  one  year  to  a  cer- 
tain percentage  of  the  whole  amount,  and 
provide  for  a  change  in  the  articles  by  a  vote 
of  the  directors,  a  change  in  the  amount  and 
time  of  payment  of  the  calls,  upon  a  com- 
pliance witii  Iowa  Code,  §§  678-680,  will  be 
binding  upon  stockholders  who  subscribed 
previous  to  such  alteration  of  the  articles. 
Burlington  6-  M.  R.  R.  Co.  v.  White,  5 
Iowa  408. 

123.  Change  iu  corporate  name. 
— A  subscription  to  stock  is  not  invali- 
dated by  a  legislative  change  in  the  name, 
and  may  be  recovered  in  a  suit  under  the 
new  name.  Bucksport  &*  B.  R.  Co.  v.  Buck, 
68  Me.  81,  19  Am.  Ry.  Rep.  10.  Greenville 
&*  P.  R.  N.  G.  R.  Co.  V.  Johnson,  8  Baxl. 
(Tenn.)  332. 

Nor  by  an  amendment  whereby  the  name 
of  the  company  has  been  changed,  and  the 
length  and  termini  of  the  road  materially 
altered.  Delaware  &*  A.  R.  Co.  v.  Irich,  23 
N.  J.  L.  321. 

124.  Change  of  route,  when  re- 
leases subscriber.— An  amendment  of  a 
charter  materially  changing  the  location  of 
the  road  releases  non-consenting  subscrib- 
ers. Witter  v.  Mississippi,  O.  &*  R.  R.  R. 
Co.,  20  Arh.  463.— Commenting  on  Banet 
V.  Alton  &  S.  R.  Co.,  13  III.  506.  Review- 
ing Hester  v,  Memphis  &  C.  R.  Co.,  32 
Miss.  380.— Applied  in  Mississippi,  O.  & 
R.  R.  R.  Co.  V.  Caster,  24  Ark.  96. — Missis- 
sippi,  O.  S^R.  R.  R.  Co.  v.  Caster,  24  Ark.  96. 
—Applying  Witter  v.  Mississippi,  O.  &  R. 
R.  R.  Co.,  20  Ark.  490. — Hester  v.  Memphis 
&*  C.  R.  Co.,  32  Miss.  378.— Reviewed  in 
Witter  V.  Mississippi,  O.  &  R.  R.  R.  Co.,  20 
Ark,  ^63.— Champion  v.  Memphis  &*  C.  R. 


Co.,  35  Miss.  692.  Buffalo,  C.  &*  N.  Y.  R. 
Co.  v.  Pottle,  23  Bard.  {N.  Y.)  21.— DIS- 
TINGUISHING Hartford  &  N.  H.  R.  Co.  v. 
Croswell,  5  Hill  (N.  Y.)  sSy—Naisen  v.  Port 
Washington,  37  Wis.  168. — DISTINGUISH- 
ING Nugent  V.  Putnam  County  Sup'rs,  19 
Wall.  (U.  S.)  241.  Reviewing  and  fol- 
lowing Kenosha,  R.  &  R.  I.  R.  Co.  v. 
Marsh,  17  Wis.  13. 

Under  73  Ohio  Laws,  115,  permitting  a 
change  of  location  of  a  railroad  on  consent 
of  the  stockholders,  provided  that "  any  sub- 
scription  of  scjck  made  upon  the  faith  of  the 
location  of  such  railroad,  ♦  »  ♦  upon 
any  line  abandoned  by  such  change,  shall  be 
canceled  at  the  written  request  of  the  sub- 
scriber not  having  consented,"  a  subscriber 
who  expressly  stipulated  against  a  change 
does  not  waive  his  right  to  enforce  that 
condition  by  failing  to  make  such  request. 
Railway  Co.  v.  Fisher,  39  Ohio  St.  330. 

125.  What  change  of  route  nvill 
not  bar  accioii  for  subscription.  —  A 
subscriber  to  stock  will  not  be  released  from 
payment  of  his  subscription  by  a  change  of 
route  from  that  first  fixed  by  law,  provided 
the  change  does  not  make  an  improvement 
of  a  different  character,  and  his  interest  is 
not  materially  affected  by  the  alteration. 
Banet  V.  Alton  &*  S.  R.  Co.,  13  ///.  504. — 
Approved  in  Sprague  v.  Illinois  River  R. 
Co.,  19  111.  174.  Commented  on  in  Witter 
V.  Mississippi, O.  &  R.  R.  R.  Co.,  20  Ark.  463. 
Disapproved  in  Pacific  R.  Co.  v.  Hughes, 
22  Mo.  291 ;  Zabriskie  v.  Hackensack  &  N. 
Y.  R.  Co.,  18  N.  J.  Eq.  178.  DiSTiN- 
guished  in  Fulton  County  Sup'rs  v.  Mis- 
sissippi &  W.  R.  Co.,  21  111.  338.  Fol- 
lowed in  Terre  Haute  &  A.  R.  Co.  v. 
Earp,  21  III.  291.  Reviewed  in  Kenosha, 
R.  &  R.  I.  R.  Co.  v.  Marsh,  17  Wis.  13.— 
Danbury  &*  N.  R.  Co.  v.  Wilson,  22  Conn. 
435.  Wilson  v.  Wills  Valley  R.  Co.,  33  Ga. 
466.— Explaining  Winter  v.  Muscogee  R. 
Co.,  1 1  Ga.  43S.— Boston,  B.  &>  G.  R.  Co.  v. 
Wellington,  1 1 3  Mass.  79.  Michigan  Mid' 
land  &•  C.  R.  Co.  v.  Bacon,  33  Mich.  466. 
Greenville  &*  C.  R.  Co.  v.  Coleman,  5  Rich. 
{So.  Car.)  118.— Distinguishing  Hartford 
&  N.  H.  R.  Co.  V.  Croswell.  5  Hill  (N.  Y.) 
383.— Followed  in  North  Carolina  R.  Co. 
V.  Leach,  4  Jones  (N.  Car.)  340. 

A  subsequent  change  in  the  location  of 
a  road  wliich  had  not  been  definitely  lo- 
cated when  the  defendant  subscribed  does 
not  release  him  from  his  contract.  Epptt 
V.  Mississippi,  G.  &*  T,  R.  Co,,  35  Ala.  33. 


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SUBSCRIPTIONS  TO  STOCK,  126. 


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f.  / 


Where  the  directors  are  authorized  by 
charter  to  vary  the  route  and  change  the 
location  of  the  road  whenever  a  cheaper  or 
better  one  can  be  had,  a  change  which 
places  the  road  upon  a  cheaper  route,  and 
procures  a  larger  subscription  of  stock,  and 
also  furnishes  a  reasonable  probability  that 
the  business  and  profits  of  the  road  will  be 
thereby  considerably  augmented,  does  not 
exonerate  subscribers  from  payment  for 
thrir  stock.  Fry  v.  Lexington  &^  B,  S.  2i. 
Co.,  2  Mete.  {Ky.)  314. 

Where  a  company  changes  a  terminus  of 
its  road  from  one  county  into  an  adjoining 
county,  under  Ohio  Act  of  1872  (69  Ohio  L. 
163),  the  mere  fact  that  the  route  to  the  new 
terminus  passes  through  a  portion  of  a  third 
county  will  not  invalidate  existing  subscrip- 
tions to  the  capital  stock.  Jewett  v.  Valley 
R.  Co.,  34  Ohio  St.  601,  21  Am.  Ry.  Rep.  21. 

Subscribers  to  stock  are  not  released  from 
their  subscriptions  by  a  change  afterwards 
made  in  the  line  of  the  road,  under  Ohio 
Rev.  St.  §  3275,  so  as  to  pass  through  a 
county  not  named  in  its  articles  of  incor- 
poration. It  is  only  when  the  road  is  di- 
verted from  a  county  named  in  the  articles 
of  incorporation  that  persons  who  sub- 
scribed to  stock  of  the  company  on  the  line 
of  that  part  of  the  road  so  changed  are  re- 
leased from  their  subscriptions.  Armstrong 
V.  Karshner,  44  Am.  &•  Ettg.  R.  Cas.  238, 
47  OAio  St.  276,  24  ;V;  E.  Rep.  897. 

The  charter  of  a  company  allowed  it  to 
select  such  route  for  its  road  between  fixed 
points  as  a  majority  of  the  stockholders 
should  deem  most  advisable,  and  provided 
that  after  the  selection  any  stockholder  who 
was  dissatisfied  with  the  route  selected 
should  have  the  right  to  withdraw,  "  pro- 
vided such  stocklu>Idr>r  shall  have  desig- 
nated at  the  time  of  subscribing  the  route 
which  he  desires  to  be  selected."  Held:  (i) 
that  such  stockholders  as  had  designated 
the  route  which  they  desired  were  entitled 
to  vote  upon  the  question  of  selection  at  a 
meeting  for  determining  the  route ;  (2)  that 
a  subscriber  who  had  not  designated  the 
route  he  desired  at  the  time  of  subscribing 
was  not  entitled  to  withdraw,  and  could  not 
show  by  parol  that  he  had  instructed  the 
agent  who  subscribed  for  him  to  designate 
the  route  he  desired  ;  (3)  that  the  company 
was  not  bound  to  select  the  most  practica- 
ble route  :  (4)  that  a  slight  change  from  the 
route  first  selected  did  not  absolve  a  stock- 
holder who  had  not  designated  the  route  he 


desired.  Greenville  &>  C.  R.  Co.  v.  Coleman, 
S  RicA.  (So.  Car.)  n  8.— Applied  in  North 
Eastern  R.  Co.  v.  Rodrigues,  10  Rich.  (So. 
Car.)  278.  Distinguished  in  Pacific  R. 
Co.  V.  Hughes,  22  Mo.  291. 

Defendant  authorized  one  of  the  commis- 
sioners who  received  subscriptions  to  sub- 
scribe for  him.  His  name  was  entered  by 
another  commissioner  who  acted  as  clerk  ; 
but  the  entries  were  certified  by  all  the 
commissioners,  and  defendant  afterwards 
voted  as  a  stockholder.  Held,  that  he  was 
liable  as  such.  Greenville  &*  C.  R.  Co.  v. 
Coleman,  $  Rich.  (So.  Car.)  118. 

120.  When  change  of  termini 
will  release  subscribers.— It  is  involved 
in  the  nature  of  a  subscription  to  the  stock 
of  a  company  to  construct  a  road  from  one 
place  to  another  that  the  termini  ate  part 
of  the  contract.  So  if  the  termini  be 
changed  by  a  subsequent  act,  subscriptions 
are  no  longer  binding.  Matiheim,  P.  &*  L. 
Plank  Road  Co.  v.  Arndt,  31  Pa.  St.  317.— 
Distinguished  in  Cross  v.  Peach  Bottom 
R.  Co.,  I  Am.  &  Eng.  R.  Cas.  366,  90  Pa.  St. 
392.  Followed  in  Caley  v.  Philadelphia 
&  C.  County  R.  Co.,  80  Pa.  St.  363.—  Witter 
V.  Mississippi,  O.  &*  R.  R.  R.  Co.,  20  Ark. 
463.  Thompson  v.  Guion,  5  /ones  Eq.  (TV. 
Car.)  113.  Marietta  6-  C.  R.  Co.  v.  Elliott, 
10  Ohio  St.  57. —  Reviewing  Pearce  v. 
Madison  &  I.  R.  Co..  21  How.  (U.  S.)  441. 
—Kenosha,  R.  &*  R.  I.  R.  Co.  v.  Marsh,  if 
Wis,  13.— Quoted  in  Attorney-General  v. 
Chicago  &  N.  W.  R.  Co..  35  Wis.  425. 

And  this  is  so  although,  wnen  the  sub- 
scription was  made,  the  general  law  under 
which  the  first  charter  was  obtained  au- 
thorized amendments  to  be  made  to  the 
charter,  the  route  to  be  changed,  and  the 
capital  stock  to  be  increased.  Snook  v. 
Georgia  Imp.  Co.,  38  Am.  &*  Eng.  R.  Cas. 
492,  83  Ga.  61.  9  S.  E.  Rep.  1104.— AP- 
PROVING Zabriskie  v.  Hackensack  &  N.  Y. 
R.  Co.,  18  N.  J.  Eq.  178. 

In  a  suit  to  recover  a  subscription  to  a 
reorganized  railroad,  under  a  new  charter, 
an  affidavit  of  defense  that  the  company 
had  not  built  to  the  termini  fixed  by  the 
original  charter,  which  was  made  a  part  of 
the  agreement  of  subscription,  is  prima 
facie  a  good  defense  on  a  motion  for  judg- 
ment for  want  of  sufficient  affidavit  of  de- 
fense. Charfiers  R.  Co.  v.  Hodgens,  77  Pa, 
St.  187  ;  but  see  85  ^  'a.  St.  501. 

If  the  change  be  a  material  and  essential 
alteration  of  the  original  contract,  it  will 


SUBSCRIPTIONS  TO  STOCK,  127, 188. 


777 


(So. 


release  a  subscriber  from  his  stock  sub- 
scription, unless  his  assent  to  such  altera- 
tion can  be  shown.  Winter  v.  Mmcogee  R. 
Co.,  II  Ga.  438.— Disapproved  in  Pacific 
R.  Co.  V.  Hughes,  22  Mo.  291.  Explained 
IN  Wilson  V.  Wills  Valley  R.  Co.,  33  Ga. 
466.  Reviewed  in  Southern  Kan.  &  P. 
R.  Co.  V.  Towner,  41  Kan.  72,  21  Pac.  Rep. 
2i\.—CaUy  V.  Philadelphia  &»  C.  County  R. 
Co,,  80  Pa.  St.  363.— Following  Indiana  & 
E.  Turnpike  Road  Co.  v.  Phillips,  2  P.  & 
W.  (Pa.)  184 ;  Manheim,  P.  &  L.  Turnpike 
Co.  V.  Arndt,  31  Pa.  St.  317.— Followed  in 
Moore  v.  Hanover  Junction  &  S.  R.  Co.,  4 
Am.  &  Eng.  R.  Cas.  256,  94  Pa.  St.  324. 

127.  When  ch<^nge  of  termini  is 
no  defense.  —  A  change  in  a  terminus 
of  a  railroad,  made  by  the  legislature  and 
assented  to  by  the  company,  does  not  dis- 
charge non-assenting  subscribers  to  stock 
from  liability  to  pay  their  subscriptions,  if 
the  amount  of  such  liability  is  not  increased 
by  the  change.  Delaware  R.  Co.  v.  Tharp, 
I  Houit.  (Del.)  149. 

A  subscriber  to  stock  cannot  avoid  pay- 
ment because  the  charter  of  the  company 
has  been  so  changed  as  to  authorize  it  to 
purchase  stock  in  other  companies,  even 
though  the  terminus  of  the  road  is  thereby 
changed.  Terre  Haute  6-  A.  R.  Co.  v. 
Earp,  21  ///.  291.— Following  Banet  v. 
Alton  &  S.  R.  Co.,  13  III.  504;  Sprague  v. 
Illinois  River  R.  Co.,  19  III.  174 ;  Illinois 
R'wKT  R.  Co.  V.  Zimmer,  20  III.  654 ;  Rice  v. 
Rock  Island  &  A.  R.  Co.,  21  III.  93. 

In  an  action  by  a  railroad  corporation  to 
recover  upon  a  subscription  to  its  stock,  a 
change  of  the  location  and  terminus  of  the 
road  by  the  corporation,  in  violation  of  an 
agreement  among  the  subscribers  prior  to 
organization  and  with  intent  to  Injure  the 
subscriber,  is  not  available  as  a  defense,  the 
corporation  not  being  a  party  to  such  agree- 
ment. White  Hall  &*  P.  R.  Co.  v.  Myers, 
16  Abb.  Pr.  N.  S.  (N.  Y.)  34. 

Articles  of  association  stated  that  the 
road  was  to  be  built  and  operated  from  a 
designated  point  to  the  state  line.  The 
road  was  built  from  the  starting  point  to  a 
point  within  twelve  miles  of  the  state  line, 
and  the  evidence  simply  showed  that  the 
road  stopped  at  that  point,  but  there  was 
no  finding  that  the  remaining  portion  had 
been  abandoned.  Held,  not  sufficient  to 
release  a  subscriber.  Buffalo  &*J.  R.  Co. 
V.  afford,  4  Am.  &*  Eng.  R.  Cas.  387,  87 
iV.  Y.  294 ;  affirming  22  Hun  359. 


A  stockholder  who  seeks  to  avoid  the 
payment  of  his  subscription,  on  the  ground 
that  one  of  the  termini  of  the  road  was  ma- 
terially changed  from  that  designated  in  the 
charter,  must  show  that  the  alteration  was 
made  without  his  concurrence  or  consent. 
North  Carolina  R.  Co.  v.  Leach,  \  Jones 
(JV.  Car.)  340.— Applying  Reg.  v.  York 
&  N.  M.  R.  Co.,  16  Eng.  L.  &  Eq.  299.  Fol- 
lowing Greenville  &  C.  R.  Co.  v.  Coleman. 
5  Rich.  (So.  Car.)  118.  Quoting  Blake- 
more  V.  Glamorganshire  Canal  Nav.  Co.,  6 
Eng.  Cond.  Ch.  544. 

c.  Consolidation.    Sale.     Lease. 

128.  Consolidation.— An  amendment 
to  a  charter  authorizing  the  consolidation 
of  the  road  with  any  other  intersecting  road 
will  not  excuse  a  stockholder  from  paying 
his  subscription.  Sprague  v.  Illinois  River 
R.  Co.,  19  ///.  174.— AppFvOving  Banet  v. 
Alton  &  S.  R.  Co.,  13  III.  504.— Distin- 
guished IN  Fulton  County  Sup'rs  v.  Mis- 
sissippi &  W.  R.  Co.,  21  III.  338.  Fol- 
lowed IN  Terre  Haute  &  A.  R.  Co.  v.  Earp. 
2!  III.  290. 

A  corporation  was  formed  under  a  general 
law  which  authorized  the  amendment  or 
repeal  of  the  law  at  the  discretion  of  the 
legislature,  but  did  not  authorize  the  con- 
solidation of  the  company  with  other  com- 
panies. After  defendant  had  subscribed  to 
the  stock  of  the  company  it  was  consolidated 
with  another  under  a  statute  authorizing 
it ;  but  such  consolidation  was  for  purposes 
for  which  the  company  had  been  organized, 
and  it  did  not  work  a  fundamental  change 
in  its  object.  Held,  that  defendant  was  not 
discharged  from  his  subscription.  Hanna 
v.  Cincinnati  &*  Ft.  W.  R.  Co.,  20  fnd.  30. 
—Reviewed  in  Swartwout».  Michigan  Air 
Line  R.  Co.,  24  Mich.  389. 

Subscriptions  to  the  capital  stock  of  rail- 
road companies,  made  since  the  taking  effect 
of  Ind.  Act  of  Feb.  23.  1853,  authorizing 
the  consolidation  of  such  companies,  will 
not  be  discharged  or  invalidated  by  the 
subsequent  consolidation  of  the  company  in 
which  they  are  made,  but  they  will  be  held 
to  have  been  made  with  reference  to  said 
law.  Bish  v.  Johnson,  21  Ind.  299.— DIS- 
TINGUISHING McCray  v.  Junction  R.  Co., 
9  Ind.  358;  Booe  v.  Junction  R.  Co.,  10 
Ind.  93. 

It  does  not  defeat  an  action  for  an  assess- 
ment upon  subscriptions  that  pending  it  the 


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SUBSCRIPTIONS  TO  STOCK,  129-181. 


plaintiff  consolidated  with  another  com- 
pany. The  cause  o(  action  does  not  die, 
but  passes  to  the  new  company;  and  this 
objection,  if  valid  in  any  form,  should  be 
considered  matter  in  abatement  merely,  and 
should  have  been  pleaded  puis  darrtin. 
Swartwout  v.  Mich^an  Air  Line  R.  Co.,  24 
Mich.  389,  4  ^m.  Ey.  Rep.  63.— Reviewing 
Hanna  v.  Cincinnati  &  Ft.  W.  R.  Co.,  20 
Ind.  30. 

In  case  of  the  consolidation  of  a  Michigan 
company  with  an  Indiana  company,  the 
objection  is  not  open  to  a  subscriber  to  the 
former  company,  when  sued  upon  his  sub- 
scription by  the  consolidated  company,  that 
it  is  not  alleged  or  proved  that  the  statutory 
amount  per  mile  had  been  subscribed  for 
the  entire  road,  as  well  that  in  Indiana  as 
that  in  Michigan,  where  it  clearly  appears 
that  the  requisite  amount  per  mile  of  the 
road  in  Michigan  had  been  subscribed ;  this 
requirement  of  the  Michigan  statute  has  ex- 
clusive reference  to  corporations  created  for 
the  construction  of  roads  within  the  state, 
and  was  not  intended  to  have  any  extra- 
territorial operation.  Monroe  v.  Ft.  Wayne, 
/.  6*S.  R.  Co.,  28  Mich.  272,  12  Am.  Ry. 
Rep.  273. 

129.  Sale. — A  company  which  sells  its 
road  without  authority  to  do  so  cannot  col- 
lect from  unwilling  subscribers  their  unpaid 
subscriptions.  A  stockholder's  pro  rata 
ownership  of  the  proceeds  of  such  sale  does 
not  take  the  place  of  an  interest  in  the  rail- 
road owned  and  worked  by  the  corporation 
itself.  South  Ga.  &*  F.  R.  Co.  v.  Ayres,  56 
Ga.  230. 

A  promise  to  pay  a  certain  sum  to  a  rail- 
road company  when  a  certain  amount  of 
the  work  of  construction  is  done,  with  an 
agreement  on  the  part  of  the  company  to 
deliver  to  the  party,  upon  the  payment  of 
the  money,  a  certificate  for  a  like  amount  of 
iis  capital  stock,  on  demand,  is  a  subscrip- 
.{.ion  to  the  stock  of  the  road  to  assist  in  its 
construction,  and  not  a  purchase  of  stock. 
And  if  the  company,  without  authority, 
attempts  to  sell  and  transfer  its  powers  to 
another  company,  such  attempt  constitutes 
no  defense  against  the  payment  of  the  sub- 
scription, being  unlawful.  Ottawa,  O.  &*  F, 
R.  V.  R.  Co.  V.  Black,  79  ///.  262. 

Where  a  mortgage  on  a  r-iilroad  is  fore- 
closed, and  the  road  sold  after  suit  is 
commenced  against  a  stockholder  on  his 
subscription,  the  fact  of  the  sale  constitutes 
no  defense.    Buffalo  &*/.  R.  Co.  v.  Gifford, 


\Am.&»Eng.  R.  Cas.  387,  87  N.  V.  294; 
affirming  22  Hun  359.  —  Distinguishing 
Lake  Ontario  Shore  R.  Co.  v.  Curtiss,  80 
N.  Y.  219. 

A  statute  authorizing  a  company  to  sell 
the  whole  or  any  part  of  its  road,  in  force  at 
the  time  a  subscription  is  made  to  its  stock, 
becomes  a  part  of  the  contract,  and  a  sale 
thereafter  made  by  the  company  of  a  part 
of  its  road,  under  authority  of  such  statute, 
does  not  release  the  subscriber,  except  when 
and  as  provision  is  made  therefor  in  the 
statute.  Armstrong  v.  Karshner,  44  Am. 
6*  Eng.  R.  Cas.  238,  47  Ohio  St.  276,  24  A': 

E.  Rep.  897.— Distinguishing  Toledo  &  G. 
R.  R.  Co.  V.  Hinsdale.  45  Ohio  St.  556. 

130.  Sale  or  lease.  —  A  plea  averred 
that  a  subscription  to  stock  was  to  be  paid 
when  the  road  should  be  completed  between 
certain  points,  and  on  payment  the  sub- 
scriber was  to  receive  a  certificate  for  a  like 
amount  of  stock;  and  that  the  company 
had  sold  or  leased  the  road.  Held,  that  the 
plea  was  bad  on  demurrer.  If  the  charter 
authorized  the  sale  or  lease,  the  party  sub- 
scribing must  have  known  that  the  power 
could  be  exercised ;  if  there  was  no  such 
power  conferred,  then  the  sale  or  lease  was 
void,  and  on  payment,  and  receipt  of  his 
certificate,  he  would  hold  his  stock  unim- 
paired, and  there  was  not  a  failure  of  con- 
sideration. Hays  V.  Ottawa,  O.  &*  F.  R.  V. 
R.  Co.,  61  ///.  422,  12  Am.  Ry.  Rep.  454. 

Where  a  company,  by  its  charter,  has 
power  to  lease  its  road,  subscriptions  to  its 
capital  stock  will  be  regarded  as  having  been 
made  with  reference  to  such  power,  and  the 
exercise  of  it  will  not  exonerate  subscribers 
to  the  stock  of  the  company  from  the  pay- 
ment of  their  subscriptions.    Ottawa,  O.  &* 

F.  R.  V.  R.  Co.  V.  Black,  79  III.  262. 

A  lease  of  a  railroad  which  is  unauthor- 
ized by  law  will  not  discharge  a  subscriber 
to  its  stock  from  his  obligation  to  pay  calls 
thereon.  Troy  &*  R.  R.  Co.  v.  Kerr,  17 
Barb.  (N.  Y.)  581. 

d.  Failure  to  Make  Preliminary  Payment.* 

131.  Such  follnre  does  not  invali- 
date the  subscription.— A  charter  pro- 
vided that "  upon  the  subscription  for  shares 
in  said  stock  the  subscribers  shall  pay  the 
sum  of  five  dollars  upon  each  share  sub- 

*  Payment  of  deposit  as  essential  to  validity 
of  subscription  to  stock,  see  note,  81  AM. 
Dec  397. 


SUBSCRIPTIONS  TO  STOCK,  138, 138. 


77» 


scribed  for  by  such  subscriber;  provided, 
that  said  company  may  commence  the  con- 
struction of  their  railroad  and  boating  so 
soon  aa  three  thousand  shall  be  subscribed." 
Held:  (i)  that  the  payment  of  five  dollars  a 
share  was  not  a  condition  precedent  to 
either  the  existence  of  the  corporation  or 
its  right  to  commence  business ;  (2)  that  the 
neglect  to  pay  the  five  dollars  did  not  render 
the  subscription  void.  Mitchell  v.  Rome  K. 
Co.,  17  Ga.  574.— Explained  in  Wood  v. 
Coosa  &  C.  R.  R.  Co..  32  Ga.  273. 

Where  a  charter  requires  a  certain  sum 
to  be  paid  at  the  time  of  subscribing,  a  fail- 
ure to  pay  the  requisite  sum  will  not  inval- 
idate the  subscription  where  the  subscriber 
is  a  commissioner  to  receive  money  and 
procure  the  steck  to  be  taken.  Ryder  v. 
Alton  &•  S.  R.  Co.,  13  III.  516. 

The  omission  of  a  subscriber  to  pay  an 
instalment  of  five  dollars  on  each  share  sub- 
scribed, as  required  by  statute,  does  not 
invalidate  the  subscription.  IVM  v.  Balti- 
more fi-  E.  S.  R.  Co.,  54  Am.  &*  Eng.  R.  Cas. 
302,  17  Md.  92,  26  Atl.  Rep.  113. 

Subscriptions  to  stock  may  be  collected 
although  the  construction  of  the  road  has 
been  commenced  before  twenty  per  cent,  of 
each  share  subscribed  has  been  paid  in,  con- 
trary to  the  provisions  of  the  charter. 
Agriiuiiural  Branch  R.  Co.  v.  Winchester, 
13  Ailer,  (Mass.)  29. 

it  is  no  defense  to  an  action  for  an  assess- 
ment upon  subscriptions  to  stock,  that  stock 
has  been  awarded  by  the  commissioners  to 
persons  whose  names  were  not  on  the  stock 
book,  or  to  those  who  had  not  actually  paid 
in  the  required  five  per  cent. on  subscribing; 
one  who  has  received  what  he  subscribed 
for  cannot  complain  of  an  award  to  those 
who  could  not  have  compelled  it.  Swart- 
wout  v.  Michigan  Air  Line  R.  Co.,  24  Mich. 
389,  4  Am.  Ry.  Rep.  63. 

Pa.  Act  of  April  4,  1868,  authorizes  the 
formation  of  railroad  corporations  by  per- 
sons subscribing  articles  of  association 
which  are  to  be  filed  with  the  secretary  of 
the  commonwealth  and  become  the  charter 
of  the  company,  but  not  until  $9000  per 
mile  have  been  subscribed  and  ten  per  cent, 
paid  in  good  faith ;  no  subscription  to  be 
taken  without  the  payment  of  ten  per  cent. 
Defendant  subscribed  the  articles  for  such 
corporation,  but  did  not  pay  the  ten  per 
cent.;  the  articles  were  filed  and  the  cer- 
tificate of  charter  issued.  Held,  in  a  suit 
against  him  for  his  subscription  after  the 


certificate  was  issued,  that  he  was  liable, 
although  he  had  not  paid  the  ten  per  cent. 
Garrett  v.  Dillsburg  d*  M.  R.  Co.,  78  Pa. 
St.  465. 

A  subscriber  to  stock  cannot  escape  lia- 
bility to  pay  his  subscription  on  the  ground 
that  he  did  not  pay  the  sum  required  by 
statute  to  be  paid  at  the  time  of  subscrip- 
tion. Pittsburgh,  W.  6-  K.  R.  Co.  v.  Apple- 
gate,  16  Am.  &*  Eng.  R.  Cas.  440.  21  IV.  Va. 
173.  —  Distinguishing  Union  Turnpike 
Road  V.  Jenkins,  t  Cai.  (N.  Y.)  381  ;  High- 
land Turnpike  Co.  v.  M'Kean,  1 1  Johns.  (N. 
Y.)  98;  Hibernta  Turnpike  Co.  v.  Henderson, 
8  S.  &  R.  (Pa.)  219 ;  Ogle  v.  Somerset  &  Mt. 
P.  Turnpike  Co.,  13  S.  &  R.  256;  Leighty 
V.  Susquehanna  &  W.  Turnpike  Co.,  14  S.  ft 
R.  434 ;  McRae  v.  Russel.  12  Ired.  (N.  Car.) 
224;  Greenville  &  C.  R.  Co.  v.  Woodsides.  5 
Rich.  (So.  Car.)  145 ;  Vermont  C.  R.  Co. 
V.  Clayes.  21  Vt.  30;  Maltby  v.  Northwest- 
ern Va.  R.  Co.,  16  Md.  422 :  Starr  v.  Scott,  8 
Conn.  483;  Crocker  v.  Crane,  21  Wend. 
(N.  Y.)  211;  Napier  v.  r'oe,  is  Ga.  170; 
Taggart  v.  Western  Md.  R.  Co.,  24  Md.  563. 

132.  Subscriber  cannot  take  ad- 
vantage of  his  own  breach  of  duty. 
— A  subscription  to  stock  is  not  rendered 
invalid  by  a  failure  to  pay  a  small  sum  on 
each  share  at  the  time  of  subscribing.  If 
the  statute  makes  it  the  duty  of.  the  sub- 
scriber to  pay,  he  cannot  take  advantage  of 
his  own  wrong  in  failing  to  discharge  that 
duty.  Wight  v.  Shelby  R.  Ctf.,  16  B.  Mon. 
{Ky.)  4.  Vicksburg.  S.  &*  T.  R.  Co.  v. 
McKean,  12  La.  Ann.  638. 

133.  Effect  of  payment  subsequent 
or  anterior  to  time  of  subscription. 
— Where  an  act  of  incorporation  requires 
five  per  cent,  upon  stock  to  be  paid  at  the 
time  of  subscription,  if  the  subscriber  does 
not  then  pay  t*  but  a  judgment  is  after- 
wards rendered  against  him  therefor,  which 
he  satisfies,  he  cannot  object,  to  a  suit 
brought  for  other  assessments,  that  he  did 
not  pay  the  five  per  cent,  in  cash  when  he 
subscribed.  Hall  v.  Sebna  <S-  T.  R.  Co.,  6 
Ala.  741.    Klein  v.  Alton  &>  S.  R.  Co.,  13 

The  payment  of  one  per  cent,  on  the 
amount  of  subscriptions  to  stock,  as  fe- 
quired  by  the  charter  of  the  company,  need 
not  be  contemporaneous  with  the  act  of 
subscribing:  a  payment  upon  a  prior  invalid 
subscription  made  anterior  to  that  time 
is  stifTicient  to  make  the  contract  valid. 
Harrington    v.  Mississippi  C.   R.   Co.,   33 


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SUBSCRIPTIONS  TO  STOCK,  134-137. 


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Mfst.  370.— Distinguished  in  Minneapolis 
A  St.  L.  R.  Co.  V.  Bassett,  20  Minn.  535 
(Gil.  478). 

A  subscription  to  stock  is  not  rendered 
invalid  by  a  failure  to  pay  ten  per  cent, 
thereof,  as  required  by  N.  Y.  General  Rail- 
road Act  of  1850,  ch  140,  §  4,  especially 
where  the  subscriber  subsequently  ratifies 
the  subscription  by  paying  forty  per  cent, 
thereof.  B/ack  River  &*  U.  R.  Co.  v.  Clarke, 
25  A''.  Y.  208;  affirming  31  Barb.  258.— DIS- 
TINGUISHED IN  Minneapolis  &  St.  L.  R.  Co. 
V.  Bassett.  20  Minn.  535  (Gil.  478) ;  Tasker 
V.  Wallace,  6  Daly  (N.  Y.)  364.  Followed 
in  New  York  &  O.  M.  R.  Co.  v.  Van  Horn, 
57  N.  Y.  473.  Referred  to  in  Beach  v. 
Smith,  30  N.  Y.  116. 

134.  Effect  of  givingr  note— Waiver 
— Estoppel. I*  —  Where  a  charier  requires 
that  a  subscriber  to  stock  shall  pay  five  per 
cent,  on  the  amount  at  the  time  of  his  sub- 
scription, but  instead  he  gives  his  note  there- 
for, participates  in  the  organization  of  the 
company,  becomes  one  of  its  directors,  and 
pays  his  note,  he  cannot  afterwards  insist  as 
a  defense  to  an  action  to  recover  an  instal- 
ment that  he  did  not  pay  the  five  per  cent, 
at  the  time  of  subscribing.  Selma  &•  T.  R. 
Co.  V.  Tip/on,  s  A/a.  787. 

Pa.  Act  of  Feb.  19,  1849,  regulating  rail- 
roads, provides  that  where  subscriptions  are 
made  to  stock  previous  to  the  issue  of  let- 
ters patent,  no  subscription  shall  be  valid 
unless  the  party  making  the  same  shall  at 
the  time  of  subscribing  pay  five  dollars  on 
each  share  for  the  use  of  the  company. 
Held:  (i)  that  giving  a  note  for  a  subscrip- 
tion is  not  a  payment  within  the  meaning 
of  the  law ;  (2)  that  such  a  subscriber,  who 
has  taken  no  other  part  in  the  affairs  of  the 
company,  is  not  estopped  from  setting  up 
the  absence  of  such  payment  as  a  defense 
to  an  action  of  assumpsit  for  the  subscrip- 
tion. Bcyd\.  Peach  Bottom  R.  Co.,  ya  Pa. 
St.  169. 

The  charter  of  a  company  provided  that 
each  stockholder  should  at  the  time  of  sub- 
scribing pay  the  first  instalment  in  money. 
Defendant  became  a  subscriber,  and  for  the 
first  instalment  the  commissioners  took  his 
promissory  note  payable  to  themselves,  gave 
him  a  receipt  as  for  money,  reported  him  as 
having  paid,  and  he  acted  by  his  proxy  in 
organizing  the  company.  The  note  was 
afterwards  transferred  by  the  commission- 

*  See  also/oj/,  216. 


ers  to  the  company.  Held,  that,  even  con- 
ceding that  the  receipt  of  the  note  was  not 
such  a  payment  as  the  charter  required, 
defendant,  by  acting  as  a  stockholder  in 
organizing  the  company,  had  waived  the 
irregularity  and  could  not  refuse  to  pay 
the  rest  of  the  instalments  called  for.  Green' 
ville  &»  C.  R.  Co.  V.  Woodsides,  $  Rich.  {So. 
Car.)  145. 

The  fact  thai  commissioners  appointed  to 
receive  subscriptions  did  not  exact  five  per 
cent,  from  a  subscriber,  as  required,  is  no 
defense  to  one  who  has  given  his  note  for 
the  stock.    Blair  v.  Rutherford,  31  Tex.  465. 

135.  Payment  In  services  to  com> 
pany.  —  Defendant  subscribed  for  $500  of 
stock  in  a  company,  upon  the  understanding 
that  the  first  ten  per  cent.,  required  by  law  to 
be  paid  in  cash,  should  be  paid  by  services 
in  procuring  subscriptions  and  right  of  way. 
He  subsequently  presented  an  account 
against  the  company  for  services,  from 
which  it  appeared  that  at  the  date  of  the 
subscription  the  company  was  indebted  to 
him  in  an  amount  greater  than  the  cash 
payment  required,  in  which  account  he  ap- 
plied and  credited  fifty  dollars  for  ten  per 
cent,  upon  his  subscription,  and  fifty  dollars 
for  the  first  call  thereon.  The  account  was 
allowed  by  the  company,  and  the  balance 
paid  to  defendant.  Held,  that  this  was  a 
sufficient  compliance  with  the  statute,  and 
made  the  subscription  obligatory.  Beach 
V.  Smith,  io  N.  V.  116;  affirming^  28  Barb. 
254.— Referring  to  Black  River  &  U.  R. 
Co.  V.  Clarke,  2$  N.  Y.  208;  Jenkins  v. 
Union  Turnpike  Road,  i  Cai.  Cas.  (N.  Y.) 
86.— Followed  in  New  York  &  O.  M.  R. 
Co.  V.  Van  Horn,  57  N.  Y.  473. 

130.  Ratification  of  payment  by 
strauf^er.— A  subscriber  for  3tock  was  in- 
formed that  the  percentage  on  his  subscrip- 
tion required  by  the  charter  to  be  paid  had 
been  paid  for  him  by  another,  and  the  sub- 
scriber made  no  objection,  but  promised, 
then,  and  on  several  subsequent  occasions, 
to  pay  the  instalments  due  on  his  stock. 
Held,  that  his  conduct  was  a  ratification  of 
the  payment  made  by  tuch  third  person, 
and  that  the  subscription  was  binding  on 
him.  Mississippi  6-  T.  R.  Co.  v.  Harris,  36 
Afiss.  17. 

137.  Rule  where  subscription  Is 
subsequent  to  organization. — A  char- 
ter provided  that  "  upon  every  subscription 
there  shall  be  paid  at  the  time  of  subscrib- 
ing the  sum  of  one  dollar  oji  every  share 


SUBSCRIPTIONS  TO  STOCK,  138-140. 


781 


tubscribed."  Books  were  opened  by  the 
commissioners,  the  requisite  number  of 
shares  subscribed,  a  board  of  directors  and 
president  elected,  and  the  company  was  fully 
organized.  After  organization  defendant 
subscribed,  in  one  of  the  subscription  books, 
for  ten  shares,  upon  the  terms  and  condi> 
tions  prescribed  therein  and  in  the  charter, 
with  the  further  condition  that  the  road 
should  be  built  on  the  existing  track  of  a 
branch  road,  but  he  did  not  pay  the  one 
dollar  per  share.  Held,  in  an  action  to  re- 
cover the  amount  of  calls  on  the  subscript 
tion,  that  the  corporation,  being  organized, 
succeeded  to  the  powers  previously  vested  in 
the  commissioners  to  sell  and  dispose  of 
the  remaining  shares  without  regard  to  the 
conditions  imposed  on  them  ;  and  that  the 
act  of  the  agent  in  taking  the  subscription, 
being  recognized  by  the  corporation  by 
receiving  and  registering  the  subscription 
among  the  conditional  subscriptions,  was 
equivalent  to  a  previous  appointment  of  the 
agunt  for  that  purpose.  Taggart  v.  West- 
trn  Md.  R.  Co.,  24  Md.  563. 

138.  Such  charter  provision  may 
be  waived  by  the  compauy.  — A  pro* 
vision  in  a  charter  requiring  live  dollars  to 
be  paid  on  each  share  of  stock  at  the  time 
of  the  subscription  is  for  the  benefit  of  the 
company  and  may  be  waived  by  it,  and  it  is 
no  defense  to  a  subscriber,  sued  on  his  sub- 
scription, that  he  never  paid  such  five 
dollars.  Minneapolis  &•  Si.  L.  Ji.  Co.  v. 
Bassett,  20  Minn.  535  {Gil.  478).— DISTIN- 
GUISHING Black  River  &  U.  R.  Co.  v. 
Clarke,  25  N.  Y.  208 ;  Charlotte  &  S.  C.  R. 
Co.  V.  Blakley,  3  Strobh.  (So.  Car.)  245; 
Barrington  v.  Mississippi  C.  R.  Co.,  32 
Miss.  370.  Reviewed  in  Spartanburg  & 
A.  R.  Co.  V.  Ezcll,  14  So.  Car.  281. 

130.  Georgia  rule. —  Under  a  provi- 
sion that  no  subscription  to  stock  shall  be 
received  or  allowed  unless  a  certain  sum  be 
then  paid,  a  subscription  without  such  pay- 
ment is  absolutely  void,  and  the  company 
cannot  recover  instalments  upon  such 
stock.  Wood  V.  Coosa  &»  C.  R.  R.  Co.,  32 
Ga.  273.— Applying  Hibernia  Turnpike 
Road  V.  lienderson,  8  S.  &  R.  (Pa.)  219. 
Distinguishing  Union  Turnpike  Road  v. 
Jenkins,  1  Cai.  (N.  Y.)  381.  Explaining 
Napier  V.  Poe,  12  Ga.  182 ;  Mitchell  v.  Rome 
R.  Co.,  17  Ga.  574. 

140.  New  Yorlc  rule.— Where  a  stat- 
ute requires  a  stated  amount  to  be  sub- 
scribed for  each  mile  of  road  to  be  built, 


and  ten  per  cent,  paid  thereon  in  good  faith, 
each  subscriber  is  not  required  to  pay  ten 
per  cent,  on  the  amount  of  his  subscription. 
If  the  amount  is  met,  it  does  not  affect  the 
validity  of  defendant's  subscription  that  he 
has  not  paid  ten  per  cent,  on  his  stock. 
Ogdensburgh,  R.  &*  C.  R.  Co.  v.  Frosi,  21 
Barb.  (N.  K.)  541.— Explaining  Troy  & 
R.  R.  Co.  V.  Kerr,  17  Barb.  6ot. 

N.  Y.  General  Railroad  Act,  §  4,  requiring 
every  subscriber  to  pay  ten  per  cent,  in 
cash,  and  forbidding  the  reception  of  any 
subscription  without  such  payment,  relates 
exclusively  to  filling  up  the  stock  by  means 
of  new  subscriptions,  after  the  articles  have 
been  filed  and  the  company  has  assumed  a 
corporate  existence.  Ogdensburgh,  R.  &*  C, 
R.  Co.  v.  Frost,  21  Barb.  {N.  V.)  341. 

A  check  given  for  the  ten  per  cent,  re- 
quired by  statute,  payment  of  which  has 
been  stopped  and  which  remains  uncol- 
lected, is  not  a  payment  "in  cash,"  as  re- 
quired by  the  statute,  and  gives  no  interest 
in  the  stock,  and  the  company  cannot  sus- 
tain an  action  for  calls.  Excelsior  Grain 
Binder  Co.  v.  Stayner,  58  How.  Pr.  (N.  K.) 
273.— Following  Union  Turnpike  Road  v. 
Jenkins,  i  Cai.  (N.  Y.)  381. 

An  actual  payment  is  needful  to  make  a 
complete  contract,  though  not  necessarily  to 
be  made  at  the  time  of  the  subscription. 
Excelsior  Grain  Binder  Co.  v.  Stayner,  58 
How.  Pr.  {N.  y.)  273. 

A  subscription  to  the  capital  stock  of  a 
corporation  organized  under  N.  Y.  General 
Railroad  Act  of  1850,  ch.  140,  made  after 
the  formation  of  the  corporation,  is  invalid 
where  ten  per  cent,  of  the  amount  sub- 
scribed has  not  been  paid  (as  required  in 
section  4) ;  and  in  an  action  by  the  corpo- 
ration against  a  subscriber  to  recover  the 
amount  subscribed,  the  latter  is  not  estopped 
from  denying  such  payment  because  of  a 
statement  in  the  subscription  paper  that 
ten  per  cent,  has  been  paid.  A  statute 
cannot  be  evaded  by  estoppel.  JVew  York 
&*  O.  M.  R.  Co.  v.  Van  Horn.  57  N.  Y.  473. 
—Following  Black  River  &  U.  R.  Co.  v. 
Clarke,  25  N.  Y.  208 ;  Beach  v.  Smith,  30  N. 
Y.  116;  Ogdensburgh,  C.  &  R.  R.  Co.  v. 
WoUey.  I  Keyes  (N.  Y.)  118. 

It  seems  that  such  a  subscription  cannot 
be  validated  by  a  subsequent  statute,  as  a 
statute  thus  attempting  to  make  a  binding 
contract  between  parties  where  none  pre- 
viouslv  existed  would  be  violative  oi  the 
constitutional  inhibition  against  depriving  a 


m 

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Mm. 


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511 


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783 


SUBSCRIPTIONS  TO  STOCK,  141-148. 


■    :'    ill 


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■I    i 


81,  i'  ''- 


I'  ! 


person  of  property  without  due  proceu  of 
law.  (N.  Y.  Conit.  art.  i,  §  6.)  New  York 
6*  0.  M,  R.  Co.  V.  Van  Horn,  57  A'.  Y.  473.— 
Referred  to  in  People  v.  O'Brien,  1 1 1  N. 
Y.  I,  18  N.  E.  Rep.  692,  19  N.  Y.  S.  R.  173. 
The  provision  of  N.  Y.  Act  of  1869,  ch. 
84,  {  2,  providing  that  no  subscription  to 
the  stock  of  a  certain  company  shall  be 
invalidated  or  affected  by  reason  of  the  non- 
payment of  ten  per  cent,  thereof  at  the 
time  of  subscription,  does  not  apply  to 
prior  subscriptions,  but  operates  prospect' 
ively  only.  New  York  &*  O.  M.  R.  Co.  v. 
Van  Horn,  57  A':  Y.  473. 

141.  EugUsh  rule.— In  an  action  for 
calls  against  one  whose  name  is  on  the  reg- 
ister of  shareholders,  the  prima  facie  infer- 
ence that  he  is  a  shareholder  is  rebutted  by 
a  letter  from  the  company  allotting  him 
shares,  but  requiring  him  to  make  certain 
payments  and  execute  certain  agreements 
within  a  specified  time  or  forfeit  the  shares 
allotted,  and  evidence  that  defendant  has 
not  done  these  acts.  Waterford,  W.,  W, 
&»  D.  R.  Co.  V.  Pidcock,  8  Ex.  279,  7  Raihv. 
Cas.  439,  \1  Jur.  26,  22  L.J.  Ex.  146. 

142.  Canadian  rule.  — A  company 
sued  defendant  as  a  shareholder,  alleging 
that  he  held  four  shares,  and  had  paid  ten 
per  cent,  thereon,  and  was  indebted  to  the 
company  for  unpaid  calls  on  each  of  said 
shares.  The  statute  (35  Vict.  c.  53,  §  7) 
enacts  thut  no  subscription  of  stock  shall 
be  valid  unless  ten  per  cent,  shall  be  paid 
thereon  within  five  days  after  subscription ; 
and  by  37  Vict.  c.  57,  §  i,  all  subscriptions 
of  stock  shall  be  valid  on  which  ten  per 
cent,  shall  have  been  actually  and  bona  fide 
paid.  Held,  that  a  plea  that  after  the  pass- 
ing of  the  act  incorporating  the  company, 
35  Vict.  c.  S3,  O.,  and  before  37  Vict,  c.  57. 
O..  amending  it,  defendant  subscribed  for 
said  shares,  but  did  not,  within  five  days 
next  thereafter,  pay  ten  per  cent,  thereon, 
whereby  the  subscription  became  void,  was 
bad,  for  the  payment  after  the  five  days  was 
sufficient.  Port  Dover  &»  L.  H.  R.  Co.  v. 
Grey,  36  U.  C.  Q.  B.  425. 

/.  Fraudulent  Representations.* 

148.  False  representations  and 
fraud  a  good  defense. — A  subscription 

*  Subscriptions  to  capital  stock  obtained  by 
fraud,  see  note,  81  Am.  Dec.  401. 

Fiaud  and  mistake  as  affecting  stockholders' 
liability  tor  unpaid  subscriptions,  see  note,  3  Ah. 
St.  Rsf.  834. 


to  stock  procured  by  the  fraud  of  the  com- 
pany's agent  in  solicitinfr  subscriptions  msy 
be  defeated  on  the  plek  of  fraud,  when  the 
company  attempts  to  enforce  it  by  suit. 
Montgomery  Southern  R.  Co.  v.  Matthews, 
24  Am.  &*  Eng.  R.  Cas.  9,  77  Ala.  357,  54 
Am.  Rep.  60.— Criticisino  Henderson  v. 
San  Antonio  &  M.  G.  R.  Co.,  17  Tex.  560. 
Distinguishing  Caley  v.  Philadelphia  &  C. 
County  R.  Co.,  80  Pa.  St.  363;  Kostenbader  v. 
Peters,  80  Pa.  St.  438 ;  Lippincott  v.  Whit- 
man, 83  Pa.  St.  244.  Quoting  Rives  v. 
Montgomery  South  Plank-Road  Co.,  30  Ala. 
92.— Kent  County  R.  Co.  v.  Wilson,  5  Houst. 
(Del.)  49.  Taylor  v.  Fletcher,  15  Ind.  80.— 
Quoted  in  Slipher  v.  Earhart,  83  Ind.  173. 
— Davis  v.  Dumont,  37  Iowa  47.  Nugent  v. 
Cincinnati,  H.  6*  /.  S.  L.  R.  Co.,  2  Disney 
(Ohio)  302.  Connecticut  &*  P.  R.  R.  Co.  v. 
Baxter,  32  Vt.  805.  Waldo  v.  Chicago,  St. 
P.  &*  F.  du  L.  R.  Co.,  14  Wis.  575. 

In  consideration  of  subscriptions  to  its 
stock  a  company  agreed  to  deposit  collat- 
erals to  secure  them.  After  defendant  had 
paid  certain  instalments  of  his  subscription, 
the  company  made  such  a  disposition  of 
the  collaterals  as  to  put  them  beyond  the 
control  of  the  subscribers.  Held,  that  de- 
fendant was  released  from  further  liability 
and  might,  at  his  election,  recover  back  the 
money  advanced.  Reusens  v.  Mexican  Nat. 
Constr.  Co.,  22  Fed.  Rep.  522,  23  Blatchf. 
(U.S.)  19;  appeal  distftixjed  in  U.  S.  Sup. 
Ct.Feb.  13,  1888. 

If  a  subscriber  to  stock  be  induced  to 
give  his  note  therefor  by  representations  of 
the  president  and  other  agents  of  the  com- 
pany that  stock  to  the  amount  of  only  $3000 
and  bonds  to  the  amount  of  only  |i  2,000 
per  mile  will  be  issued,  and  in  fact,  at  the 
time  these  representations  are  made,  stock 
to  the  amount  of  $12,000  and  bonds  to  the 
amount  of  $15,000  per  mile  have  been,  or 
are  agreed  to  be  and  afterwards  are,  issued, 
his  subscription  is  not  binding.  Weems  v. 
Georgia  Midland  &*  G.  R.  Co.,  84  Ga.  356. 
II  S.  E.  Rep.  503. 

If  the  representations  are  as  to  matter* 
controlled  by  the  charter,  and  as  to  which 
the  subscriber  is  legally  bound  to  know  that 
the  agent  has  no  right  to  make  representa* 
tions  inconsistent  therewith,  they  will  not 
avoid  the  subscription.  As  to  matters  hot 
controlled  by  the  charter,  false  and  fraudu- 
lent representations  which  come  within  the 
limitations,  and  by  which  one  has  been 
entrapped  into  a  subset  iptton,  will  avoid  the 


SUBSCRIPTIONS  TO  STOCK,  144,  145. 


718 


contract,  just  as  fraud  vitiates  contracts  o( 
every  character.  Selma,  M.  «i*  M.  R.  Co. 
V.  Andtrson,  ji  Mist.  829. 

In  a  suit  against  a  subscriber  for  stock  un- 
der Pa.  Act  of  April  4,  1868,  defendant  may 
give  evidence  that  he  signed  a  blanic  paper 
for  the  stocic,  under  an  arrangement  with 
the  agent  obtaining  his  subscription  that 
his  signature  should  not  be  binding,  nor 
"  the  heading,"  being  the  articles  of  asso- 
ciation, be  attached  to  the  paper  until  it 
should  be  presented  to  him  and  approved, 
and  that  it  never  was  presented  to  him  nor 
approved  by  him.  Buchtr  v.  Dillsburg  &* 
M.  K.  Co.,  76  Pa.  St.  306. 

A  subscription  fraudulently  obtained  from 
a  person,  by  which  he  is  injured,  is  void, 
although  the  name  of  the  subscriber  is  ac- 
cepted and  entered  upon  the  stock  book  of 
the  company,  unless,  by  his  failure  to  notify 
it  in  a  reasonable  time  after  the  fraud  was 
discovered,  the  company  will  be  injured  by 
its  release.  Cunningham  v.  Edgefiild  &» 
K.  R.  Co.,  2  Htad{Ttnn.)  23. 

144.  Fraud  iiiuHt  appear,  and  that 
defendant  was  misled  thereby.  — A 
plea  averred  that  the  inducement  to  sub- 
scribe for  stock  was  to  procure  a  com- 
peting line,  and  that  the  agent  at  the  time 
represented  that  the  road  should  remain  a 
competing  line,  but  when  completed  it  was 
leased  to  the  competing  road.  HM,  that 
this  plea  was  bad  on  demurrer,  as  it  failed 
to  aver  that  the  agent  falsely  and  fraudu- 
lently made  the  representations.  Hays  v. 
Ottawa,  O.  6-  F.  R.  V.  R.  Co.,  61  ///.  422,  la 
Am.  Ry.  Rep.  454. 

Contemporaneous  parol  representations 
cannot  be  set  up  as  a  defense  to  an  action 
on  a  contract  of  subscription  to  stock  when 
it  is  not  shown  that  they  were  omitted  as 
conditions  in  a  written  contract  by  some 
fraud  of  the  plaintiff,  or  by  accident  or  mis- 
take. Jack  V.  Naber,  15  Iowa  450. — Fol- 
lowing Gelpcke  v.  Blake,  15  Iowa  387. 

Fraud  in  procuring  subscriptions  must  be 
affirmatively  shown  and  will  not  be  pre- 
sumed. First  Nat.  Bank  v.  Hurford,  29 
Iowa  579. 

A  subscriber  for  stock  cannot  avoid  his 
subscription  upon  the  ground  that  the 
agent  who  procured  it  obtained,  from  an 
influential  person  in  the  neighborhood, 
whom  he  represented  to  be  well  acquainted 
with  such  matters,  a  colorable  subscription 
for  stock,  with  the  secret  understanding 
that  he  was  not  to  be  bound  thereby,  and 


presented  said  subscription  to  the  subscriber 
and  others  as  bona  fide,  to  induce  them  to 
take  stock,  unless  it  also  appears  that  he 
relied  upon  that  fact,  and  was  induced 
thereby  to  make  the  subscription.  Walker 
v.  Mobile  5-  O.  R.  Co.,  34  Miss.  245. 

A  statement  on  the  part  of  the  agent  of  a 
corporation  as  to  the  pecuniary  condition 
and  prospect  of  his  corporation  will  not 
avoid  a  subscription,  unless  the  falsity  and 
fraud  of  such  representations  are  clearly 
shown,  and  unless  it  is  manifest  that  the 
alleged  condition  of  the  enterprise  con- 
stituted a  material  inducement  to  the  sub- 
scription. Selma,  M.  &*  M.  R.  Co.  v.  Ah' 
dersoH,  51  Miss.  829. 

To  avoid  a  subscription  upon  tiie  ground 
of  false  representation  by  an  agent,  it  must 
be  shown  that  the  statement  was  not  uttered 
as  an  opinion,  but  as  an  ascertained  and 
existing  fact.  It  must  not  only  be  false  in 
fact,  but  must  also  either  be  known  to  be 
so  by  the  party  uttering  it,  or  his  position 
must  be  one  that  made  it  his  duty  to  know 
the  truth.  The  resisting  subscriber  must 
show  that  he  acted  upon  su.ch  statement; 
that  his  own  opinion  was  such  as  warranted 
him  in  so  acting;  and  that  the  statement 
was  as  to  a  fact  material  to  the  question  of 
his  subscription.  Selma,  M.  &*  M.  R.  Co. 
v.  Anderson,  $  1  Miss.  829. 

Proof  that  certain  c '  ***•  promoters  of  a 
railroad  scheme  guara  i  that  the  route 
would  pass  near  to  a  .ain  tract  of  land, 
accompanied  with  proof  of  a  deviation  from 
such  line,  will  not  be  sufficient  to  discharge 
a  subscriber  who  had  subscribed  in  reliance 
on  such  statement,  there  being  no  evidence 
tending  to  show  any  fraudulent  intent. 
Braddock  v.  Philadelphia,  M.  6*  M.  R.  Co., 
16  Am.  &*  Eng.  R.  Cas.  436,45  N.J.  L.  363. 

If  a  party  is  induced  to  take  stock  by  false 
representations  which  are  not  fraudulent 
and  which  form  no  part  of  the  contract  of 
subscription,  he  is  not  entitled  to  be  re- 
lieved from  the  payment  of  his  subscription. 
But  if  he  acts  upon  such  representations  to 
his  injury,  he  is  entitled  to  relief,  although 
they  may  have  been  innocently  made.  Cun- 
ningham v.  Edgefield  5*  K.  R.  Co.,  2  Head 
(Tenn.)  23. 

145.  Mere  expressions  of  opinion.* 
— The  mere  expression  of  an  opinion  can- 
not be  a  fraudulent  representation,  unless 

*  Expressions  as  to  matters  of  opinion  do  not 
constitute  fraudulent  representations,  see  note^ 
24  Am.  &  Enc.  R.  Cas.  17. 


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SUBSCRIPTIONS  TO  STOCK,  140. 


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falsely  made,  with  intent  to  deceive,  and 
actually  deceiving ;  nor  can  it  constitute  a 
fraud,  vitiating  a  contract  tliereby  procured, 
when  it  relates  to  a  matter  equally  open  to 
both  parties.  Montgomtry  Sout/itrn  R.  Co. 
V.  Matthnvs,  34  Am,  6*  Eng.  Ji.  Cas.  9,  77 
Ala.  357,  54  Am.  Rtp.  60.  Jtfferton  v. 
Htwitt,  95  Cat.  535,  30  Pac.  Rtp.  77a. 
Evansvillt,  I.  6-  C.  S.  L.  R,  Co.  v.  Posty,  i3 
Ind.  363.  Bish  V.  Bradford,  17  Ind,  490. 
Walker  v.  Mobilt  6-  O.  R.  Co.,  34  J//w.  245. 
Jackson  V.  Stockbridge,  39  TVjt.  394.— QUOT- 
ING Trower  v.  Newcome,  3  Meriv.  704; 
Juzan  V,  Toulniin,  9  Ala.  684. 

Representations  by  the  agent  of  a  rail- 
road corporation,  soliciting  subscriptions 
for  stock  from  persons  living  along  the  con- 
templated route  of  the  ruad,  as  to  its  in- 
tended location,  and  the  time  within  which 
it  will  be  completed  to  a  particular  place, 
are  but  the  mere  expression  of  an  opinion, 
and  neither  constitute  a  fraud,  nor  are 
available  as  a  defense  to  an  action  on  a  sub- 
scription for  stock  made  on  the  faith  of 
tliem,  unless  known  by  the  agent  to  be 
false,  and  made  by  him  with  intent  to  de- 
ceive. Montgomery  Southern  R.  Co.  v. 
Matthews,  24  Am.  &*  Etig.  R.  Cas.  9,  77 
Ala.  357,  54  Am.  Rep  60.  Jefferson  v. 
Hewitt,  95  Cal.  535,  30  Pac.  Rep.  773. 

Although  an  action  on  the  defendant's 
subscription  for  stock  cannot  be  defeated 
on  the  ground  of  fraud,  when  the  represen- 
tations of  the  corporation's  soliciting  agent 
were  merely  the  expression  of  an  opinion 
as  to  the  probable  location  and  completion 
of  the  road,  yet,  if  the  agent  further  repre- 
sented that  the  money  subscribed'  would  be 
refunded  unless  the  road  was  so  located  and 
completed,  and  he  was  authorized  to  make 
these  representations,  the  action  will,  it 
seems,  be  enjoined  in  equity,  on  proof  of 
the  insolvency  of  the  corporation  and  its 
abandonment  of  the  work  before  comple- 
tion. Montgomery  Southern  R.  Co.  v. 
Matthews,  24  Am.  &•  Eng.  R.  Cas.  9,  77 
Ala.  357,  54  Am.  Rep.  60. 

Stock  subscribed  must  be  paid  for,  not- 
withstanding the  subscriber  was  induced  to 
give  a  note  therefor  by  misrepresentations 
of  the  agents  of  the  company  as  to  the 
amount  of  stock  then  subscribed  and  the 
time  within  which  the  road  would  be  com- 
pleted.   Goodrich  v.  Reynolds,  31  ///.  490. 

False  representations  by  a  soliciting  agent 
of  a  company  that  the  persons  undertaking 
to  construct  the  road  were  able  to  complete 


it  without  any  financial  aid  from  the  com- 
pany are  no  defense  to  an  action  upon  a 
subscription  to  its  stock.  Andrews  v.  Ohio 
&*  M.  R.  Co.,  14  Ind,  169. 

The  allegation  that  the  stock  solicitor 
fraudulently  represented  that  a  sufficient 
amount  of  solvent  stock  was  subscribed  to 
complete  the  road  within  two  years,  that 
the  men  3  of  the  company  were  ample,  and 
that  it  could  and  would  press  said  road 
to  completion  within  that  time,  but  that  it 
failed  to  do  so,  constitutes  no  bar  to  a 
recovery  on  such  subscription.  Brownie*  v. 
Ohio,  I,  6-  /.  R,  Co.,  18  Ind.  68. 

While  false  statements,  made  by  an  au- 
thorized agent  of  a  railroad  corporation,  in 
regard  to  the  past  or  present  status  of  the 
corporate  enterprise,  or  of  material  matters 
connected  therewith,  whereby  a  subscrip- 
tion is  obtained  to  its  capital  stock,  may  be 
fraudulent,  and  defeat  a  recovery  thereon, 
representations  concerning  the  future  in- 
tention, purpose,  or  expectation  of  the  cor- 
poration will  not  have  that  effect,  especially 
when  it  is  not  shown  that  they  were  fraud- 
ulently made  for  the  purpose  of  deceiving. 
Armstrong  v.  Karshner,  44  Am.  *•  Eng.  R. 
Cas,  238,  47  Ohio  St,  376,  24  A^.  E.  Rep.  897. 

146.  Public  utterances  of  com- 
pany's oflScials.— The  opinion  of  one  of 
the  commissioners  appointed  to  receive 
subscriptions  for  stock,  that  a  subscriber 
might  forfeit  his  stock  by  failing  to  pay  an 
assessment  thereon,  can  have  no  influence 
upon  the  liability  of  the  latter,  and  in  an 
action  brought  for  the  recovery  of  an  assess- 
ment is  irrelevant  testimony.  Hall  v.  Selma 
&*  T,  R.  Co.,  6  Ala,  741. 

It  is  not  competent  for  the  defendant,  in 
a  suit  by  a  company  for  assessments  upon 
stock,  to  prove  declarations  made  by  the 
agent  of  the  company  in  public  speeches  in 
order  to  obtain  subscriptions,  that  the  road 
would  pass  through  a  particular  county, 
unless  the  substance  of  such  declarations 
had  been  incorporated  in  the  contract  of 
subscription,  and  a  compliance  therewith  by 
the  company  made  a  condition  precedent  to 
the  payment  of  such  assessment.  Missis- 
sippi, O.  &*  R,  R.  R.  Co.  V.  Cross,  20  Ark.  443. 

Parol  declarations  made  by  officers  of  a 
company  on  public  occasions,  if  admissible 
at  all  to  invalidate  a  subscription  for  stock, 
cannot  avail  a  subscriber  who  does  not  show 
that  such  declarations  amounted  to  fraud 
on  the  part  of  the  company,  inducing  error 
on  his  own  part  when  he  subscribed.   Vicks- 


ii 


SUBSCRIPTIONS  TO  STOCK,  147-lSO. 


785 


the  com' 
nn  upon  a 
■ws  V.  OAi'a 

k  solicitor 
suflicient 

scribed  to 
years,  that 
implc,  and 

said  road 
but  that  it 

bar  to  a 
IrownUt  V. 

by  an  au- 
oration,  in 
tus  of  the 
iai  matters 
subscrip- 
:k,  may  be 
y  thereon, 
future  in- 
)f  the  cor- 
especially 
ere  fraud- 
deceiving. 
S-  Eng.  R. 
Rtp.  897. 
of  com- 
of  one  of 
to  receive 
subscriber 
to  pay  an 
influence 
and  in  an 
an  assess- 
7  V.  Stlma 

sndant,  in 
ents  upon 
de  by  the 
leeches  in 

the  road 
r  county, 
clarations 
tntract  of 
rewith  by 
icedent  to 
Missis- 
Ark.  443. 
cers  of  a 
dmissible 
or  stock, 
not  show 

to  fraud 
ing  error 
1.    Vickt- 


burg,  S,  5*  T.  R,  Co.  v.  McKtan,  la  La. 
Ann,  638. 

Persons  subscribing  to  the  stock  ot  a  cor- 
poration must  take  notice  of  the  law  creat- 
ing it  and  defining  its  powers,  and  if  tlie 
directors,  in  order  to  secure  stock  subscrip- 
tions, propose  to  do  tliat  which  they  are 
prohibited  by  the  statute  from  doing,  no 
subscriber  can  be  heard  to  insist  timt  the 
same  sliall  be  done  contrary  to  such  statute. 
Piters  \.  Lincoln  &•  N.  \V.  R.  Co.,  4  Ah- 
Crary(U.  S.)  269,  14  Fat.  Rtp.  319, 

147.  Uiiaiitlioi'izvd  reproHoiita- 
tloiis  of  ugoiitH.  —  Wliere  defendant  is 
sued  upon  notes  given  for  stock,  evidence 
is  not  admissible  to  prove  that  the  parties 
who  obtained  the  subscription  represented 
that  the  road  was  to  be  of  standard  gauge, 
and  was  to  be  equipped  by  a  strong  exist- 
ing company,  both  of  which  promises  were 
violated,  unless  they  were  authorized  to 
make  the  statements.  Hell  v.  Amtricus,  P. 
&»  L.  R.  Co.,  76  Ga.  754. 

The  promise  of  an  agent  of  a  company  to 
a  party  subscribing  for  stock  therein  upon 
the  faith  of  such  promise,  that  the  payment 
should  be  delayed  a  longer  time  than  that 
expressed  in  the  charter,  is  not  binding  on 
the  company ;  for  the  written  contract  of 
subscription  cannot  be  altered  by  a  verbal 
promise,  such  promise  being  inconsistent 
with  the  charter,  and  void  for  want  of 
power  to  make  it.  Thigpen  v.  Mississippi 
C.  R.  Co.,  32  Miss.  347. 

148.  BepresoiitatiouH  that  may 
not  be  relied  upon.  —  A  party  is  pre- 
sumed to  know  the  contents  of  an  instru- 
ment which  he  signs,  and  has,  therefore,  no 
right  to  rely  upon  the  statements  of  the 
other  party  as  to  its  legal  effect.  New 
Albany  &'S.  R.  Co.  v.  Fields,  10  /«</.  187. 
Thornburgh  v.  Newcastle  &*  D.  R.  Co.,  14 
Ind.  499. 

Nor  as  to  the  ultimate  value  of  the  stock. 
Vawter  v.  Ohio  &*  M.  R.  Co.,  14  Ind.  174. 

Nor  that  the  proposed  road  will  be  aided 
by  another,  since  such  representations  in- 
volve the  question  of  the  corporate  power 
of  that  other,  even  supposing  that  the  agent 
had  authority  to  make  the  representations, 
and  that  they  were  material.  Johnson  v. 
Crawfordsville,  F.,K.&*  Ft.  W.  R.  Co.,  11 
fnd.  280. 

Representations   that  the   company  has 

stock  enough  to  complete  the  road,  and 

will  do  It  in  two  years,  are  too  vague  to 

constitute  a  defense  to  a  suit  on  notes  given 

7  D.  R.  D.— 50 


for  an  instalment  of  a  subscription.    Hardy 
v.  Merriweather,  14  Ind.  203. 

Where  the  directors  of  a  company  are 
authorized  at  their  discretion  to  change  the 
location  of  a  road,  and  a  true  representation 
was  made  that  the  road  was  located  through 
a  certain  locality,  the  fact  of  a  subsequent 
change  will  not  avoid  a  subscription  though 
the  first  location  was  the  inducement  for 
making  the  subscription.  Ellison  v.  Mo- 
bile &*  O,  R.  Co.,  36  Miss.  572.— Distin- 
guishing Hester  T'.  Memphis  &  C.  R.  Co., 
33  Miss.  378. 

140.  ltopre8eutatlou8  not  wilfully 
falMO. — A  stockholder  is  bound  by  his  sub- 
scription though  he  subscribed  under  the 
mistaken  belief  that  he  might  forfeit  his 
stock  at  his  pleasure;  and  it  makes  no  dif- 
ference that  he  was  assured  by  the  person 
taking  subscriptions  that  he  had  the  right 
under  the  terms  of  the  charter  to  forfeit, 
such  assurance  being  founded  on  mistake 
and  not  being  wilfully  false.  North  Eastern 
R.  Co.  V.  Rodrigues,  10  Rich.  (So.  Car.)  278. 
—Applying  Greenville  &  C.  R.  Co.  7/. 
Smith,  6  Rich.  91.— Reviewed  in  Spartan- 
burg &  U.  R.  Co.  V.  DeGrafTenreld,  13 
Rich.  675. 

lAO.  Frauds  practised  on  others, 
no  defense.  —  There  are  cases  of  fraud, 
and  other  unlawful  acts,  particularly  acts  of 
the  same  general  character  continuous  in 
their  nature,  where  it  is  permissible  to 
prove  other  similar  transactions  occurring 
at  or  about  the  same  time,  as  shedding 
some  light  on  the  particular  transaction  in 
controversy;  but  in  an  action  against  a 
subscriber  for  stock,  who  defends  on  the 
ground  of  fraudulent  representations  by  the 
company's  agent  in  procuring  his  subscrip- 
tion, he  cannot  be  allowed  to  prove  similar 
representations  made  by  .said  agent  to  other 
subscribers  in  the  same  neighborhood. 
Alontgomery  Southern  R.  Co.  v.  Matthews,  24 
A»i.  <S-  Eng.  R.  Cas.  9,  77  Ala.  357,  54  Am. 
Rep.  60. 

A  fraud  practised  by  one  of  the  commis- 
sioners upon  his  co-commlssloners,  and 
upon  a  portion  of  the  subscribers  in  the  dis- 
tribution of  the  stock,  cannot  be  set  up  by 
a  subscriber  to  vitiate  the  proceedings  of 
the  commissioners.  The  subscriber  quoad 
the  proceedings  is  deemed  a  party  to  the 
adjudication  ;  strangers  may  impeach  acov- 
inous  judgment,  but  not  parties.  Crocker 
v.  Crane,  21  Wend.  (N.  V.)  211.— Distin- 
guished IN  Pittsburgh,  W.  &  K.  R.  Co.  v. 


> 


I 


b 


t  f 
1, 


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h 


■^  i. 


sn^ 


a  :-■  -I 


786 


SUBSCRIPTIONS  TO  STOCK,  151-165. 


Applegate,  i6  Am.  &  Eiig.  R.  Cas.  440,  21 
W.  Va.  172. 

151.  Frauds  by  ouo  subscriber 
upon  others.  —  Where  one  having  pos- 
session of  an  agreement  to  take  shares  in 
the  capital  stocic  of  a  corporation,  after  sub- 
scribing in  good  faith  for  shares  of  such 
stock,  induces  others  to  subscribe  on  the 
faith  of  his  subscription,  and  subsequently, 
without  the  knowledge  of  the  other  sub- 
scribers, alters  the  paper  by  reducing  the 
number  of  his  shares,  and  de.ivers  the 
instrument  in  that  condition  to  t!'ie  secre- 
tary, who  is  also  a  director  of  the  company, 
this  will  not  affect  the  liability  of  one  thus 
induced  to  subscribe,  although  at  the  time 
of  such  delivery  the  person  making  the 
alteration  explains  the  same  to  the  secre- 
tary, who  makes  no  objection  thereto. 
Jewttt  V.  Valley  R.  Co.,  34  Ohio  St.  601,  21 
Am.  liy.  Rep.  21. 

162.  Effect  of  lacbes.  —  If  a  person 
desires  to  avoid  a  subscription  to  stock,  on 
the  ground  of  fraudulent  representations 
made  by  the  soliciting  agent  of  the  com- 
pany, to  induce  him  to  subscribe,  and  he 
suffers  an  unreasonable  period  of  time  to 
elapse  before  he  asserts  his  right  to  such 
relief  (seven  years  in  this  case),  he  should 
show  a  sufficient  excuse  for  his  failure  to 
act  at  an  earlier  date,  or  the  legal  presump- 
tion will  be  againsi  his  right  to  set  up  said 
defense  at  all.    Dynes  v.  Shaffer,  19  Ind.  165. 

/.  Various  Other  Defenses. 

"1^3.  Accord    and    satisfaction.— 

Lv  an  action  upon  a  subscription  paper 
by  which  defendant  promised  to  pay  a 
certain  sum  to  A,  B,  and  C,  in  trust,  to 
Im  expended  in  constructing  a  railroad, 
defendant  answered  that  when  the  instru- 
ment was  executed  it  was  agreed  that  if 
the  railroad  was  located  through  the  farm 
of  defendant,  he  should  have  the  choice 
of  paying  the  $500  or  giving  the  right  of 
way  to  the  corporation,  and  that  he  had 
given  such  right  of  way,  which  had  been 
accepted  by  the  company.  Held,  a  good 
defense.  It  did  not  involve  a  violation  of 
the  rule  which  excludes  parol  evidence  of 
an  agreement  made  contemporaneously  with 
a  written  contract.  The  matter  set  up  was 
admissible  es  showing  an  accord  and  satis- 
faction, and  also  as  showing  that  the  power 
or  authority  given  to  the  persons  named 
was  not  coupled  with  an  interest,  and  was 


therefore  revocable  by  the  parties  signing  it 
at  any  time  before  it  was  executed.  EvanS' 
ville,  T.  H.  &>  C.  R.  Co.  v.  Wright,  38  Ind. 
64,  10  Am.  Ry.  Rep.  255. 

15-1.  Advances  made  to  company. 
— In  a  suit  against  a  stockholder  for  his  un- 
paid subscription  to  stock,  he  should  be 
allowed  credit  for  his  subsequent  advances 
to  the  corporation,  even  though  not  credited 
on  his  subscription  account  on  the  books  of 
the  company.  Nettles  v.  Marco,  33  So.  Car. 
47,  II  S.  E.  Rep.  595, 

156.  Delivery  of  subscription  in 
escrow. — It  is  not  a  valid  defense  to  allege 
that  a  subscription  paper  was  delivered  as 
an  escrow,  to  become  effectual  on  condition 
when  it  was  delivered  to  one  of  the  commis- 
sioners appointed  to  receive  subscriptions 
to  a  railroad.  It  should  have  been  deliv- 
ered to  a  third  person  to  become  effectual 
as  an  escrow.  Wight  v.  Shelby  R.  Co.,  i6 
B.  Mon.  {Ky.)  4. 

Defendant  delivered  his  subscription  to  a 
director  of  the  company,  in  escrow,  to  be 
delivered  to  the  company  only  on  condition 
that  a  certain  county  failed  to  vote  a  sub- 
scription to  the  company.  Held,  in  the 
absence  of  proof  that  the  county  had  failed 
to  vote  a  subscription,  that  there  was  no 
delivery  to  the  company,  and  no  recovery 
could  be  had.  Ottawa,  O,  &'F.  R.  V.  R.  Co. 
V.  Hall,  I  ///.  App.  612. — Reviewing  Price 
V.  Pittsburg,  Ft.  W.  &  C.  R.  Co.,  34  111.  36. 

But  the  fact  that  such  subscription  was 
voted  by  the  county,  but  was  afterwards  de- 
clared void  by  the  courts,  does  not  consti- 
tute such  a  failure  as  was  contemplated.  He 
did  not  contract  upon  the  basis  of  the  final 
validity  of  the  county  subscription.  Ottawa, 
O.  &•  F.  R.  V.  R.  Co.  V.  Hall,  i  ///.  App.  612. 

In  such  case  the  corporation  could  ac- 
quire no  right  to  the  subscription  until  per- 
formance of  the  conditions  under  which  it 
was  delivered,  no  matter  how  it  got  posses- 
sion thereof,  unless  there  was  a  second  de- 
livery by  consent  of  defendant.  Ottawa,  O. 
&'  F.  R.  V.  R.  Co.  V.  Hall,  i  ///.  App.  612. 

If  a  special  agent  of  a  company  to  receive 
subscriptions  to  the  capital  stock  has  in- 
trusted to  him  a  subscription  which  is  to  be 
delivered  only  upon  the  location  of  the 
road  in  a  certain  position,  and,  in  disregard 
of  the  non-performance  of  the  condition,  he 
delivers  the  subscription,  the  subscriber  is 
not  liable  thereon.  Saginaw,  T.  &*  H.  R. 
Co.  v.  Chappell,  22  Am.  &-  Eng.  R.  Cas,  16, 
56  Afich.  190,  22  N.  W.  Rep.  278. 


SUBSCRIPTIONS  TO  STOCK,  15e,  167. 


787 


The  inhabitants  of  a  town  appointed  a 
committee  to  obtain  subscriptions  to  a  rail- 
road which  were  to  be  delivered  to  the  com- 
pany only  upon  the  performance  of  certain 
parol  conditions.  Held,  that  a  member  of 
the  committee  was  not  prevented  from  re- 
ceiving the  subscriptions  in  escrow,  and  a 
delivery  to  the  company  without  the  per- 
formance of  the  conditions  would  not  bind 
the  subscribers.  Beloit  fi-  M.  R.  Co.  v. 
Palmer,  19  Wis.  574. 

Defendant  subscribed  to  stock  and  gave 
his  note  in  payment,  secured  by  a  mortgage, 
which  the  company  negotiated,  and  suit  was 
brought  thereon  by  an  assignee.  The  de- 
fense set  up  was  that  the  note  and  mortgage 
were  delivered  in  escrow,  to  be  delivered  to 
the  company  only  upon  the  performance  of 
certain  conditions,  but  that  it  got  posses- 
sion of  them  without  the  consent  of  de- 
fendant, and  without  performing  the  con- 
ditions. But  the  evidence  showed  that 
defendant  knew  for  about  two  years  before 
suit  that  plaintiff  owned  the  note,  and  made 
no  objection,  and  after  the  lapse  of  said 
two  years  received  a  certificate  of  stock 
from  the  company  without  objection.  Held, 
that  he  must  be  regarded  as  having  assented 
to  the  delivery  of  the  note  and  mortgage  to 
the  company,  and  to  have  waived  the  orig- 
inal conditions.  Truman  v.  McCollum,  20 
Wii.  360. 

156.  Estoppel  to  question  cor- 
porate status.*  —  A  subscriber  to  the 
capital  stock  of  a  railroad  company,  when 
sued  for  his  subscription,  cannot  set  up 
in  df*fense  any  mere  irrregularity  in  the 
organization  of  the  company,  provided  it  is 
a  corporation  </(f/<K'/o,  proce'^ding  without 
interference  of  the  state  authorities  In  the 
construction,  completion,  and  maintenance 
of  its  road.  Monroe  t.  Ft.  Wayne,  J.  &* 
S.  /?.  Co.,  28  Mt'cA.  272,  12  Am.  Ry.  Rep.  273. 
—Following  Swartwout  v.  Michigan  Air 
Line  R.  Co.,  24  Mich.  389.—  Swartwout  v. 
Michigan  Air  Line  R.  Co.,  24  Mich.  389,  4 
Am.  Ry.  Rep.  63.— Followed  in  Monroe 
V.  Ft.  Wayne,  J.  &  S.  R.  Co.,  28  Mich.  272. 
—  Ohio  &*  M.  R.  Co.  v.  McPherson,  35 
Mo.  1 3.  Cayuga  Lake  R.  Co.  v.  Kyle,  64  N. 
V.  185 ;  affirming  5  T.&*  C.  659.— FOLLOW- 
ING Buffalo  &  A.  R.  Co.  v.  Cary,  26  N.  Y. 
75. — Montfielier&»  W.  R.  R.  Co.  v.  Langdon, 
46  Vt,  284. 

*  Subscriber  to  stock  is  estopped  from  deny- 
ing corporate  existence,  see  notes,  81  Am.  Dec. 
40a ;  3  Am.  St.  Rep.  837. 


In  an  action  upon  a  subscription  to  a 
railroad  company  which  recognizes  the 
corporation,  the  existence  of  the  company 
cannot  be  disputed,  and  questions  of  the 
irregularity  of  its  organization  are  imma- 
terial. Parker  v.  Northern  C.  M.  R.  Co.,  33 
Mich.  23.  Wood,  V.  Coosa  &*  C.  R.  R.  Co., 
32  Ga.  273.  Rice  v.  Rock  Island  &»  A.  R. 
Co.,  2!  ///,  93.— Following  Illinois  River 
R.  Co.  V.  Zimmer,  20  111.  654;  Sprague  v. 
Illinois  River  R.  Co.,  19  III.  174.— 0//w6- 
AL  R.  Co.  V.  McPherson,  35  Mo,  13.  Buffalo 
&*  A.  R.  Co.  V.  Cary,  26  A^.  Y.  75.— DISAP- 
PROVING First  Baptist  Soc.  v.  Rapalee,  16 
Wend.  (N.  Y.)  605.— Followed  in  Cayuga 
Lake  R.  Co.  v.  Kyle,  64  N.  Y.  185. 

Payment  of  instalments  on  a  subscription 
to  its  stock  is  a  sufhcient  recognition  of  the 
legal  existence  and  organization  of  a  rail- 
road, by  the  subscriber  so  paying,  to  enable 
it  to  recover  the  remaining  instalments  from 
him.  Maltby  v.  Northwestern  Va.  R.  Co.,  i6 
Md.  422. 

157.  Failure  of  consideration  or 
non-perforniauce  by  company. i*  —  A 
subscriber  for  stock  cannot  defeat  a  recov- 
ery of  his  subscription  on  the  ground  that 
no  certificate  of  stock  has  been  tendered  to 
him.  Slipher  v.  Earhart,  83  Ind.  173. — 
QlTOTiNG  New  Albany  &  S.  R.  Co.  v.  Mc- 
Cormick,  10  Ind.  499 ;  Helm  v.  Swiggett,  la 
Ind.  194. 

Where  a  written  proposition  upon  which 
subscriptions  are  based  stipulates  that 
eighty  acres  of  land,  suitable  for  passen- 
ger and  freight  depots,  machine  shops,  en- 
gine and  car  houses,  and  side  tracks,  are  to 
be  furnished  free  of  expense  to  the  company, 
no  time  being  fixed  within  which  such  erec- 
tions are  to  be  made,  a  failure  on  the  part  of 
the  company,  up  to  that  time,  to  make  the 
same  will  not  support  a  plea  of  failure  of 
consideration.  First  Nat.  Bank  v.  Hur- 
ford,  29  Iowa  579. 

If  the  stock  which  a  company  agrees  tj 
supply  has  a  certain  and  known  character, 
the  company  has  no  right  to  alter  or  change 
its  character,  and  still  expect  it  to  be  re- 
ceived in  fulfilment  of  the  contract,  unless 
the  change  be  within  the  contemplation  of 
the  parties.  If  the  acts  of  the  company, 
after  the  making  of  a  contract,  have  so 
injuriously  affected  the  stock  as  to  destroy 
the  benefits  expected  from  it  by  the  other 

*  Release  of  liability  on  subscription  by  fail- 
ure of  company  to  comply  with  terms  of  con- 
tract, see  note,  4  Am.  &  Eng.  R.  Cas.  a6i. 


I 


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i 


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m 


r88 


SUBSCRIPTIONS  TO    STOCK,  158-160. 


m  i 


;;  i 


party,  this  is  a  defense.   James  v.  Cincin- 
nati, H.  &*  D.  R.  Co.,  2  Disney  {Qhio)  261. 

158.  Forfeiture  of  charter— Insol- 
▼ency. — One  who  makes  a  valid  subscript 
tion  to  capital  stock,  when  not  induced 
thereto  by  fraud  on  the  part  of  the  cor- 
poration or  its  officers,  assumes  the  risk  of 
its  value,  and  he  cannot  defend  by  showing 
that  the  stock  subscribed  for  was  valueless. 
Lynch  v.  Eastern,  L.  F.  &>  M.  R.  Co.,  12 
Am.  &*  Eng.  /?.  Cas.  652,  57  Wis.  430,  15 
A^,  W.  Rep.  743.  825. 

It  is  no  defense  to  a  suit  to  recover  a 
subscription  to  stock,  to  plead  that  the  road 
has  been  seized  by  the  governor.  The 
charter  is  not  forfeited,  and  the  company 
may  still  collect  its  subscriptions.  Mullins 
V.  North  6-  5.  R.  Co.,  54  Ga.  580. 

The  insolvency  of  the  corporation  is  no 
ground  for  restraining  the  collection  of  sub- 
scriptions for  stock.  Dill  v.  Wabash  Valley 
R.  Co.,  21  ///.  91. 

Non-compliance  with  the  provisions  of  a 
charter  is  not  a  matter  of  defense,  collater- 
ally, between  corporations  and  their  stock- 
holders or  debtors.  Taggart  v.  Western 
Md.  R.  Co.,  24  Md.  563.— Distinguished 
IN  Oler  V.  Baltimore  &  R.  R.  Co.,  41  Md. 
583 :  Pittsburgh,  W.  &  K.  R.  Co.  v.  Apple- 
gate,  16  Am.  &  Eng.  R.  Cas.  440,  21  W. 
Va.  172. 

Under  the  Missouri  Illegal  Banking  Act 
of  1855,  a  stockholder,  sued  for  his  sub- 
scription, is  not  estopped  to  plead  the  vio- 
lation of  the  act  by  the  corporation,  in  bar  of 
the  suit.  (Rev.  Code  1855,  ch.  14,  §§  4  and 
9.)    North  Mo.  R.  Co.  v.  Winkler,  33  Mo.  354. 

Any  cause  which  may  work  a  forfeiture 
of  the  charter  of  a  company  is  not  tlie  sub- 
ject of  inquiry  collaterally,  and  is  not  mat- 
ter of  defense  to  an  action  brought  by  the 
company  upon  a  subscription  to  the  capital 
stock.  Huntingdon  &*  B.  T.  M.  R.  &*  C. 
Co.  v.  Decker,  82  Pa.  St.  119,  15  Am,  Ry. 
Rep.  425. 

159.  Improper  construction  of 
road. — In  the  absence  of  any  condition  in 
a  contract  of  subscription  to  stock  that  the 
road  was  to  be  broad  or  common  gauge,  a 
stockholder  cannot  defend  an  action  for 
instalments  upon  the  ground  that  he  sup- 
posed the  road  was  to  be  broad  gauge  and 
it  had  in  fact  been  built  narrow  gauge. 
May  V.  Memphis  Branch  R.  Co.,  48  Ga.  109, 
II  Am.  Ry.  Rep.  395.— Distinguished  in 
Memphis  Branch  R.  Co.  v.  Sullivan,  57 
Ga.  240. 


160.   Increase  of  capital  stock.— 

One  who  has  been  allotted  a  certain  number 
of  shares  in  a  company,  and  who  has  not 
been  notified  nor  received  knowledge  that 
the  par  value  of  the  shares  has  been  dou- 
bled by  resolution  of  the  directors,  is  liable 
only  on  his  contract  with  the  company  for 
the  shares  at  their  original  value.  In  re 
European  C.  R.  Co.,  L.  R.  8  E-q.  438. 

Where  the  amount  of  stock  is  fixed  by 
charter,  but  with  a  proviso  that  additional 
stock  may  be  issued  when  the  president 
and  directors  shall  direct,  the  facts  that  the 
whole  amount  of  original  stock  has  been  is- 
sued, and  that  the  issue  of  additional  stock 
has  not  been  directed  by  the  officers  of  the 
company,  are  a  good  defense  to  an  action  on 
a  subscription.  McCord  v.  Ohio  &-  M.  R. 
Co.,  13  Ind.  220. — Distinguished  in  Oler 
V.  Baltimore  &  R.  R.  Co.,  41  Md.  583.  Fol- 
lowed IN  Ewing  V.  Ohio  &  M.  R.  Co.,  23 
Ind.  438. 

But  an  allegation  setting  up  the  overis- 
sue as  fraudulent  is  not  sufhcient,  if  the 
fraud  be  charged  in  general  terms.  The 
particular  fraud  should  be  alleged,  or  the 
facts  constituting  it.  McCord  v.  Ohio  &* 
M.  R.  Co.,  13  Ind.  220. 

In  an  action  by  a  corporation  to  recover 
a  subscription  to  its  stock,  the  fact  of  its 
having  taken  subscriptions  in  addition  to  its 
authorized  stock  does  not  of  itself  bar  its 
right  to  recover.  If  it  has  retained  a  suffi- 
cient amount  of  its  authorized  stock,  which 
it  is  ready  and  able  to  issue  to  the  sub- 
scriber to  such  stock  when  he  performs  his 
part  of  the  contract,  it  may  recover  against 
him.  But  there  can  be  no  recovery  against 
a  subscriber  to  the  additional  unauthorized 
stock.  Oler  v.  Baltimore  &*  R.  R.  Co.,  41 
Md.  583,  7  Am.  Ry.  Rep.  495.  —  Distin- 
guishing McCord  V.  Ohio  &  M.  R.  Co.,  13 
Ind.  221  ;  Taggart  v.  Western  Md.  R.  Co., 
24  Md.  583. 

A  subscriber  is  not  released  from  his  sub- 
scription by  reason  of  an  increase  of  the 
capital  and  the  construction  of  a  branch 
road  in  pursuance  of  an  act  of  the  legisla- 
ture amendatory  of  the  original  act  of  in- 
corporation. Schenectady  &*  S.  Plank-road 
Co.  V.  Thatcher,  11  N.  V.  102.  —  Disap- 
proved in  Peoria  &  R.  I.  R.  Co.  v.  Preston, 
35  Iowa  115.  Distinguished  in  Erie  &  N. 
Y.  C.  R.  Co.  V.  Owen,  32  Barb.  (N.  Y.)  616. 
Explained  in  Carlisle  v.  Terre  Haute  & 
R.  R.  Co.,  6  Ind.  316.  Followed  in  Buf- 
falo &  N.  Y.  C.  R.  Co.  V.  Dudley,  14  N.  V. 


SUBSCRIPTIONS  TO   STOCK,  161, 162. 


789 


336.  Not  followed  in  Zabriskie  v.  Hack- 
ensack  &  N.  Y.  R.  Co.,  18  N.  J.  Eq.  178. 
Reviewed  in  Beattys  v.  Solon,  45  N.  Y. 
S.  R.  899. 

In  an  action  upon  a  subscription  to  stock 
which,  after  its  execution,  has  been  materi- 
ally altered  without  the  knowledge  or  con- 
sent of  the  maker,  to  recover  the  amount 
appearing  to  be  due  on  each  altered  sub- 
scription, and  the  execution  of  the  contract, 
as  set  out,  is  denied,  plaintiff  cannot  re- 
cover the  amount  due  on  the  original  sub- 
scription without  showing  that  the  altera- 
tion was  not  fraudulently  made.  Bery  v. 
Marietta.  P.  &»  C.  Ji.  Co.,  26  Ohio  St.  673, 
II  Am.  Ry.  Rep.  259. 

161.  Infancy.  —  Where  an  infant  is 
sued  for  calls  on  railway  shares  it  is  a  good 
prima  facie  defense  that  while  he  was  an 
infant  he  repudiated  the  contract  and  sub- 
scription. Newry  &•  E,  R.  Co.  v.  Coombe,  3 
Ex.  565,  5  Railw.  Cas.  633,  18  L.J.  Ex.  325. 

But  his  plea  of  infancy  is  bad  if  he  does 
not  show  that  he  was  a  shareholder  by  con- 
tract, and  had  avoided  it.  Leeds  &•  T.  R. 
Co,  v.  Fearnley,  5  Railw.  Cas.  644,  j  D.&^  L. 
68,  4  Ex.  26,  \%  L.J.  Ex.  330. 

By  the  express  wording  of  8  &  9  Vict.,  c. 
16,  an  infant  is  capable  of  becoming  a 
shareholder;  and  he  is  liable  at  all  events 
for  calls  on  shares  registered  in  his  name, 
if  he  is  sued  after  attaining  his  majority  and 
still  holds  the  shares,  such  holding  consti- 
tuting a  ratification.  Cork  &•  B.  R.  Co.  v. 
CasseHove,  10  Q.  B.  935,  1 1  Jttr.  802.  Birk- 
enhead, L.  &*  C.  J.  R.  Co.  V.  Pilcher,  6 
Railw.  Cas.  564,  5  Ex.  1 21,  14  Jur.  297,  19 
L.J.  Ex.  207. 

And  he  must  repudiate  the  contract  with- 
in a  reasonable  time  after  becoming  of  age. 
Dublin  &*  W.  R.  Co.  v.  Black,  8  Ex.  181,  7 
Railw.  Cas.  434,  22  L.J.  Ex.  94. 

The  plea  of  infancy  is  proved  if  it  is 
shown  that  he  became  the  purchaser  of  the 
shares  while  he  was  an  infant,  although  the 
call  was  made  when  he  attained  full  age. 
Birkenhead,  L.  &•  C.  J.  R.  Co.  v.  Pilcher,  6 
Railw.  Cas.  564,  5  Ex.  121,  14  Jur.  297,  19 
L.J.  Ex.  207. 

Where  a  person  obtains  shares  in  a  com- 
pany by  original  agreement  with  the  com- 
pany, and  his  name  is  entered  in  the  register, 
it  is  no  answer,  in  an  action  under  8  &  9 
Vict.  c.  16,  §  26,  for  calls  on  such  shares, 
to  plead  that  he  was  an  infant  at  the  time 
of  the  agreement  and  of  entering  his  name 
and  of  making  the  calls,  and  that  he  never 


ratified  the  purchase,  and  that  the  bargain 
was  a  disadvantageous  one.  North-  Western 
R.  Co.  v.  M' Michael,  6  Railw.  Cas.  618,  5 
Ex.  114,  IS  Jur.  132,  20  L.J.  Ex.  97. 

An  infant  shareholder  is  not,  under  the 
Companies  Clauses  Consolidation  Act,  1845, 
absolutely  bound,  but  may  waive  the  pur- 
chase, and  thereby  his  liability  to  calls  is 
at  an  end.  North- Western  R.  Co.  v. 
M' Michael,  6  Railw.  Cas.  618,  5  Ex.  114,  15 
Jur.  132,  20  L.J.  Ex.  97. 

162.  lusiifBcieucy  of  preliminary 
subscriptions.— It  cannot  be  pleaded  to 
a  complaint  upon  a  subscription  of  stock 
that  at  the  time  it  was  made  there  was  no 
such  corporation,  because  the  defendant  is 
estopped  by  his  contract  to  deny  the  cor- 
poration, and  because,  under  the  general 
railroad  law,  subscriptions  of  a  certain 
amount  of  stock  are  necessary  for  the  or- 
ganization of  a  contemplated  corporation, 
and  for  ttiat  reason  and  purpose  are  valid 
before  such  organization,  and  may  be  col- 
lected afterwards.  Anderson  v.  Newcastle 
&•  R.  R.  Co.,  12  Ind.  376.  —  Followed  in 
Emery  v.  Evansville,  I.  &  C.  S.  L.  R,  Co.,  13 
Ind.  143. 

In  an  action  upon  a  promissory  note  given 
as  a  voluntary  contribution  in  aid  of  a  pro- 
posed railroad,  it  is  no  valid  defense  that 
the  municipal  and  individual  aid  and  stock 
subscriptions  to  the  road  do  not  amount  to 
$6000  per  mile ;  the  proviso  of  the  statute 
(Mich.  Comp.  L.  1871,  §  2298)  in  this  regard 
is  to  be  considered  merely  as  a  qualification 
of  the  right  to  levy  and  collect  assessments 
upon  the  stock  subscribed.  Wright  v.  Ir- 
win, 35  Mich.  347. 

Although  a  company  organizing  under 
the  statute  may  have  failed  to  have  sub- 
scribed the  requisite  amount  to  its  capital 
stock  previous  to  the  filing  of  its  articles  of 
association,  this  will  not  avail  a  subscriber 
to  the  stock  as  a  defense,  especially  when  it 
does  not  appear  that  such  subscription  was 
made  previous  to  making  the  assessment 
against  him.  The  state  may  complain  of 
the  want  of  such  subscription,  but  the  sub- 
scriber to  stock  cannot.  Sedalia,  W.  &*  S, 
R.  Co.  v.  Abell,  17  Mo.  App.  645. 

Under  Oreg.  Code,  a  subscription  for  one 
half  of  the  capital  stock  is  a  condition  pre- 
cedent to  organization  and  a  right  of  the 
company  to  call  upon  subscribers  for  pay- 
ments of  stock ;  and  where  a  company  or- 
ganizes before  the  required  amount  of  stock 
is  subscribed,  a  subscriber,  when  called  upon 


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SUBSCRIPTIONS  TO  STOCK,  163-16S. 


for  payments,  may  insist  that  such  condi- 
tions be  complied  with,  and  is  not  estopped 
on  the  ground  that  the  corporation  has  a  de 
facto  existence.  Fairviiw  R,  Co.  v.  Spill- 
man,  23  Oreg.  587.  32  Pac.  R*p.  688. 

163.  Mismanaeremeut  —  Improper 
use  of  money  subscribed.  —  In  a  suit 
by  a  railroad,  or  other  corporation,  against 
a  subscriber  for  assessments  upon  his  stock, 
he  is  not  permitted  to  show,  by  way  of  de- 
fense to  the  action,  that  the  corporation 
has,  by  misuser  or  nonuser,  violated  or 
failed  to  comply  with  the  provisions  of  its 
charter.  Mississippi,  O.  &»  R.  R.  R.  Co.  v. 
Cross,  20  Ark,  443.  —  Following  Central 
Plankroad  Co.  v.  Clemens,  16  Mo.  3S9. 

A  company  cannot  be  enjoined  from 
collecting  instalments  on  subscriptions  for 
stock  because  the  money  may  be  expended 
in  extending  the  road  beyond  the  county  in 
which  the  stockholders  reside,  unless  the 
contract  of  subscription  expressly  stipulated 
that  the  money  should  be  expended  in  such 
county.     Dill  v.  Wabash  Valley  R.  Co.,  21 

///.  91. 

If  there  was  any  such  condition  in  the 
subscription  it  should  be  clearly  and  posi- 
tively stated  in  the  bill  to  enjoin  payment. 
A  verbal  agreement  or  understanding  to 
that  effect  would  constitute  no  defense. 
Dill  V.  Wabash  Valley  R.  Co.,  21  ///.  91. 

The  fact  that  the  affairs  of  a  corporation 
are  unwisely  managed,  or  its  contracts  not 
authorized  by  the  articles  of  incorporation, 
will  not  relieve  a  stockholder  from  liability 
to  pay  his  subscription  for  stock.  Merrill 
V.  Reaver,  50  Iowa  404. 

164.  Mistake. — A  subscriber  to  stock 
of  a  company,  chartered,  but  waiting  for 
subscriptions  in  order  to  organize  under  its 
charter,  can  have  no  relief  in  a  court  of 
equity  on  the  ground  that  when  intending 
merely  to  renew  an  old  subscription  to  the 
stock,  which  had  fallen  through,  he,  by 
some  unaccountable  mistake,  subscribed  for 
double  the  amount ;  such  subscriber  ascer- 
taining his  mistake  immediately  after  his 
subscription,  and  suffering  the  company  to 
organize  and  act  upon  the  faith  of  his  sub- 
scription, during  several  months,  without 
notice  of  his  alleged  mistake.  Diman  v. 
Providence,  W.  &*  B.  R.  Co.,  $  R.  I.  130. 

A  subscription  to  the  stock  of  a  company 
is  valid  though  made  to  one  who  was  not  a 
commissioner  to  receive  subscriptions,  but 
who  went  about  in  the  interest  of  the  road 
soliciting  subscriptions  in  order  to  secure  a 


charter;  and  the  subscription  is  binding 
though  made  by  a  subscriber  under  the 
mistaken  belief  that  he  could  forfeit  it  at 
pleasure.  North  Eastern  R.  Co,  v.  Rod- 
rigues,  10  Rich.  (So.  Car.)  278. 

166.  Objeotious  to  the  organiEa- 
tion.  —  Where  a  statute  does  not  per  u 
confer  corporate  powers,  but  contemplates 
some  act  to  be  done  by  the  company,  as  the 
election  of  officers,  etc.,  such  required  act 
must  be  done  to  entitle  the  company  to 
maintain  an  action  against  a  subscriber  for 
stock,  the  subscription  being  made  prior  to 
the  organization  which  the  charter  provided 
for.  Carlisle  v.  Cahawba  &»  M.  R.  Co.,  4 
Ala.  70. 

Where  the  act  creating  a  corporation  pro- 
vides that  its  members,  or  they  who  may 
become  such,  shall  organize  before  their 
corporate  existence  is  complete,  in  an  action 
to  recover  the  price  of  stock  subscribed  for 
previous  to  their  organization,  defendant  by 
an  appropriate  plea  may  throw  upon  plain- 
tiff the  burden  of  showing  a  compliance 
with  the  requirements  of  the  charter.  Selma 
&*  T.  R.  Co.  V.  Tipton,  5  Ala.  787. 

That  the  corporation  was  not  organized 
until  after  defendant  had  subscribed  is  not 
a  sufficient  reason  for  refusing  to  pay  in- 
stalments. Danbury  &»  N.  R.  Co.  v.  Wil- 
son, 22  Conn.  435. 

Illegality  in  the  election  of  directors  is 
no  defense  to  an  action  on  a  stock  sub- 
scription. Johnson  v.  Crawfordsville,  F.,  K. 
&*  Ft.  W.  R.  Co.,  11  Ind.  280. 

The  law  providing  for  the  organization 
of  railroad  companies,  and  for  receiving 
subscriptions  to  the  stock  thereof,  enters 
into,  forms  part  of,  and  determines  the  effect 
of  subscriptions,  as  fully  as  if  it  were  written 
out  and  formed  in  terms  a  part  of  the  con- 
tract of  subscription.  Hoaglandv.  Cincin- 
nati^ Ft.  W.  R.  Co.,  18  Ind.  452.— Quoted 
IN  Sedalia,  W.  &  S.  R.  Co.  v.  Abell,  17  Mo. 
App.  645. 

As  a  general  rule,  strict  compliance  with 
its  charter  as  to  organization  must  be  shown 
by  a  company  seeking  to  enforce  payment 
of  subscriptions  to  its  stock,  but  in  some 
cases  compliance  will  be  presumed  and  in 
others  it  may  be  waived.  Maltby  v.  North- 
western Va.  R.  Co.,  16  Md.  422.— Distin- 
guished IN  Pittsburgh,  W.  &  K.  R.  Co.  v. 
Applegate,  16  Am.  &  Eng.  R.  Cas  440.  21 
W.  Va.  172. 

In  order  to  hold  subscribers  to  an  under- 
taking; for  a  railway,  the  scheme  subscribed 


ij- 


SUBSCRIPTIONS  TO   STOCK,  166-168. 


7M 


for  and  that  for  which  the  act  of  parlia- 
ment is  obtained  must  be  identical.  Mi'd- 
land  G.  IV.  R.  Co.  v.  Gordon,  5  Kailw.  Cas. 
76,  16  M.  &*  IV.  804,  ii/«r,  440,  xd  L.J. 
Ex.  165. 

160.  Reduction  of  capital  stock. 
— A  subscriber  to  shares  in  a  corporation 
contracts  with  reference  to  the  charter ;  and 
the  number  of  shares  to  be  subscribed,  or 
the  whole  capital  stock  necessary  to  do  the 
contemplated  business,  constitutes  an  im- 
portant element  in  the  contract.  For  the 
corporation  to  release  subscriptions  so  as 
to  reduce  the  capital  largely  and  materially 
may  operate  as  a  release  of  other  sub- 
scribers. A  mere  nominal  subscription,  to 
fulfil  the  letter  and  break  the  spirit  of  the 
contract,  is  no  substantial  compliance  with 
the  charter,  and  when  released  because  it 
was  nominal  it  becomes  equivalent  to  no 
subscription  ab  initio.  Memphis  Branch 
R.  Co.  V.  Sullivan,  57  Ga.  240. 

After  defendant  had  subscribed  to  stock, 
but  before  the  minimum  number  of  shares 
required  had  been  taken,  the  charter  was 
amended,  reducing  the  number  of  shares. 
Held,  that  defendant  might  refuse  to  pay 
assessments  on  his  shares.  Oldtown  &•  L. 
Ji.  Co.  V.  Veasie,  39  Me.  571. — Rfx'ONCIL- 
ING  South  Bay  Meadow  Dam  Co.  v.  Gray, 
30  Me.  547.  —  Reviewed  in  Zabriskie  v. 
Hackensack  &  N.  Y.  R.  Co.,i8  N.  J.  Eq.  178. 

If  a  statute  fixing  the  amount  uf  the 
capital  stock  of  a  company  is  amended  by 
another  statute  providing  that  the  capita! 
required  to  build  the  railroad  shall  be  a  less 
sum,  taking  subscriptions  to  an  amount 
larger  than  the  capital  allowed  by  the  last 
statute,  but  less  than  the  capital  fixed  by 
the  first  statute,  will  not  render  the  sub- 
scriptions invalid.  Agricultural  Branch  Ji, 
Co.  V.  Winchester,  13  Allen  {Mass.)  29. 

107.  Belense.*— A  contract  made  by 
a  corporation  or  its  directors  releasing  a 
Btocicholder  from  his  subscription  to  stock, 
if  made  in  good  faith,  is  valid  and  binding, 
with  or  without  the  consent  of  the  other 
creditors  and  stockholders.  Geipcke  v. 
Blake,  19  Iowa  263. 

An  arrangement  between  the  officers  of 
a  company  and  a  portion  of  its  subscribers 
that  if  the  town  in  which  they  reside  votes 

*  Release  from  subscriptions,  see  note,  12  Am. 
&  Eng.  R.  Cas.  678. 

Withdrawal  or  release  of  subscribers  to  capi- 
tal stock,  see  notes,  81  Am.  Dec.  399;  3  Am. 
St.  Rep.  821. 


a  certain  amount  of  municipal  aid,  tuch 
subscribers,  upon  paying  a  certain  percent- 
age of  their  subscription,  shall  be  released 
from  the  balance,  being  one  in  effect  to  re- 
lease a  portion  of  the  subscriptions  without 
authority  of  law,  is  void.  Swartvout  v. 
Michigan  Air  Line  R.  Co.,  24  Mich.  389,  4 
Am.  Ry,  Rep.  63. 

Where  a  subscriber  to  stock  who  has 
been  released  from  the  obligation  of  his  sub- 
scription subsequently  votes  at  an  annual 
election  for  directors,  is  himself  elected  a 
director,  acts  as  director  and  as  stockholder, 
and  pays  money  to  the  company,  his  acts 
are  evidence  of  a  subscription  of  some  kind, 
and,  in  the  absence  of  proof  of  a  special 
contract,  warrant  the  inference  that  he  has 
reassumed  his  original  obligation.  But  they 
are  shorn  of  their  importance  where  a 
special  contract  accounting  for  them  is 
shown.  Pittsburgh  &»  C.  R.  Co.  v.  Stewart, 
41  Pa.  St.  54. 

Even  if  the  original  subscription  had  not 
been  released,  a  new  contract  between  the 
company  and  the  subscriber,  authorizing 
him  to  pay  in  materials  at  a  future  time  in- 
stead of  in  cash  on  call,  would  supersede  the 
original  contract.  Pittsburgh  &*  C.  R.  Co. 
v.  Stewart,  41  Pa.  St.  54. 

Though  a  contract  of  subscription  can  be 
released  only  by  the  stockholders,  or  by  the 
board  of  directors  duly  authorized  to  do  so 
by  the  stockholders,  yet  such  release  may 
be  proved,  not  only  by  the  records  of  the 
company,  but  also  by  other  evidence  show- 
ing that  such  subscription  was  in  fact  not 
regarded  by  the  company  as  binding  upon 
it,  and  that  the  subscriber  was  not  regarded 
by  himself  or  by  the  company  as  a  stock- 
holder thereof.  Stuart  v.  Valley  R.  Co.,  32 
Graft.  ( Va.)  146, 

108.  Secret  agfreemeut  with  com- 
paiiy  In  fraud  of  otlier  subscribers. 
— Though  a  conditional  subscription  may 
be  admitted,  yet  private  arrangements,  not 
expressed  in  the  subscription,  between  an 
agent  of  a  company  and  a  subscriber,  by 
which  the  latter  is  to  have  peculiar  privi- 
leges not  extended  to  other  subscribers,  or 
by  which  his  subscription  is  not  to  be  col- 
lected—being made  to  induce  others  to  sub- 
scribe— are  regarded  as  fraudulent  on  other 
subscribers,  and  are  no  defense  to  a  suit  for 
the  amount  subscribed.  New  Albany  &»  S. 
R.  Co.  V.  Fields,  10  Ind.  187.— FOLLOWED 
IN  New  Albany  &  S.  R.  Co.  v.  Slaughter, 
10  Ind.  218. 


I 
3 


I    , 


79S 


SUBSCRIPTIONS  TO   STOCK,  169. 


'  it 


•  I 


A  secret  agreement  entered  into  between 
the  directors  of  a  corporation  and  a  sub- 
scriber for  shares  in  its  capital  stock  that 
he  may,  within  a  specified  time,  reduce  the 
number  of  shares  thus  subscribed  for,  the 
subscription  being  held  out  as  dona  fide  for 
the  full  amount  in  order  to  induce  others 
to  subscribe,  is  void  as  a  fraud  on  the  other 
subscribers ;  and  the  original  subscription 
may  be  enforced  for  its  full  amount  be- 
tween the  corpon>n'>  and  the  subscriber. 
White  Mow.  *aim  -    4.  Eastman,  34  N. 

H.  124. 

A  subscriber  wuo  is  sued  for  the  amount 
of  his  subscription  cannot  set  up  as  a  de- 
fense that  his  subscription  wa^  a  ((signed  and 
fraudulent  one,  and  tlui  the  ....  .,jany  was 
a  party  to  the  fraud.  Grajjf  v,  i'itlsi.tigh 
6-  S.  K.  Co..  31  Pa.  St.  489. 

A  subscription  to  joint  stock  is  not  only 
an  undertaking  to  the  company,  but  with 
all  other  subscribers,  and,  even  if  fraudulent 
as  between  the  parties,  is  to  be  enforced  for 
the  benefit  of  the  others  in  interest.  Graff 
V.  Pittsburgh  Sr^  S.  R.  Co.,  31  Pa.  St.  489. 

It  is  no  defense  to  an  action  to  recover 
tiie  amount  of  a  subscription  to  stock  that 
the  subscription  was  made  at  the  request  of 
the  president  of  the  company,  with  the 
understanding  that  defendant  was  not  to  pay 
for  or  hold  the  stock  subscribed,  and  that 
the  same  was  to  be  canceled.  Such  an 
agreement  would  be  a  fraud  on  the  com- 
pany and  on  all  subsequent  subscribers; 
and  while  defendant  might  reap  no  advan- 
tage from  it,  he  would  be  held  to  all  the 
responsibilities  of  a  iona  fide  subscriber. 
Robinson  v.  Pittsburgh  <S-  C.  R.  Co.,  32  Pa. 
St.  334.— Following  Graff  v.  Pittsburgh 
4  S.  R.  Co.,  31  Pa.  St.  489. 

A  subscription  to  joint  stock  is  not  only 
an  undertaking  with  the  company  but  witli 
all  other  subscribers,  and  a  subscriber  cannot 
be  permitted  to  set  up  a  secret  parol  arrange- 
ment with  the  agents  of  the  company  by 
which  he  may  be  released  from  his  sub- 
scription while  his  fellow-subscribers  con- 
tinue to  be  bound.  Miller  v.  Hanover 
Junction  &'  S.  R.  Co.,  87  Pa.  St.  95.— DIS- 
TINGUISHED IN  Moore  v,  Hanover  Junc- 
tion &  S.  R.  Co.,  4  Am.  &  Eng.  R.  Cas.  256, 
94  Pa.  St.  324. 

A  secret  agreement  that  a  subscription 
should  never  be  collected,  or  that  it  might  be 
discharged  in  something  of  less  value,  is  a 
fraud  upon  the  other  stockholders,  and  pay- 
ment of  the  amount  subscribed  will  be  en- 


forced without  regard  to  such  agreement. 
Downiev.  White,  12  Wis,  176. — Followed 
IN  Racine  County  Bankz/.  Ayres,  i2Wis.5i2. 

A  person  who  has  acted  in  collusion  with 
the  directors  of  a  company  to  defraud  it  by 
securing  the  issue  of  shares  at  a  discount 
cannot  be  heard  to  set  up  this  fraud  for  the 
purpose  of  making  invalid  an  agreement, 
valid  on  its  face,  whereby  he  agrees  to  take 
and  pay  for  a  certain  number  of  shares. 
Odessa  Tramways  Co.  v.  Mendel,  L.  R.  8  Ch. 
D.  235,  47  L.  J.  Ch.  505.  26  W.  R.  887,  38 
L.  T.  731 ;  afiirming  yj  L.  T.  275. 

A  shareholder  is  not  relieved  of  h\&  prima 
facie  liability  to  pay  for  calls,  whether  a 
stipulation  with  the  company  to  return  five 
pounds  per  share  in  debentures  was  or  was 
not  illegal  by  virtue  of  7  &  8  Vict.  c.  85, 
§  19,  or  invalidated  by  reason  of  its  being 
beyond  the  competency  of  a  meeting  of  the 
proprietors  to  adopt.  West  Cornwall  R. 
Co.  V.  Mowatt,  \iQ.  B.  12\,\^  Jur.  loi,  19 
L.J.Q.B.xiZ. 

169.  Set-off.  —  A  party  subscribing  to 
stock  executed  his  note,  secured  by  mort- 
gage, for  his  subscription ;  the  company 
guaranteed  that  his  dividends  should  pay 
the  interest  on  the  note,  and  that  in  consid- 
eration of  the  transfer  of  those  dividends 
the  company  would  pay  the  interest  on  the 
same  and  indemnify  the  maker  against  the 
payment  of  interest  and  principal,  but  there 
were  no  dividends,  and  the  stock  was  worth- 
less at  the  maturity  of  the  note.  Held,  that 
as  against  the  company,  on  bill  to  foreclose, 
the  facts  could  be  set  up  as  a  defense  on 
the  ground  of  recoupment  or  equitable  set- 
off, and  that  the  same  rule  applied  to  a 
purchaser  of  the  note  and  mortgage  before 
maturity.     Haskell  \.  Brown,  d^  III.  29. 

A  stockholder  in  the  Clinton  &  Port  Hud- 
son railroad  company  who  holds  the  bonds 
and  coupons  belonging  to  the  series  for 
which  liis  mortgage  is  pledged  may  plead  the 
same  in  compensation  of  his  stock  subscrip- 
tion.    Haynes  v.  Kent,  8  La.  Ann.  132. 

A  company  with  a  completed  railroad  and 
doing  business,  but  actually  insolvent,  as- 
signed to  D.  in  payment  of  a  debt  an  agree- 
ment by  C.  to  pay  to  S.  $500  on  his  sub- 
scribing $1000  to  the  stock  of  the  road, 
payable  on  its  completion,  which  agreement 
had  been  accepted  by  S.and  the  subscription 
made.  When  notified  of  the  assignment  S. 
owned  $250  in  scrip  issued  by  the  road,  and 
afterwards  he  bought  more.  D.  sued  on  the 
agreement  and  averred  that  S.  had  refused 


'I' 


SUBSCRIPTIONS  TO  STOCK,  170-172. 


"iQ'i 


to  sue  C.  for  the  $500,  but  did  not  aver  that 
it  could  have  been  collected  by  suit,  f/eld, 
that  the  assignment  was  valid;  that  S.  was 
no;  bound  to  sue  for  the  $500  unless  it  was 
collectible,  and  that  S.  had  a  right  to  set  off 
the  (250  of  scrip,  but  if  his  liability  in  his 
subscription  had  matured,  he  could  not  set 
off  against  D.  scrip  bought  after  notice  of 
the  assignment.  Durtgan  v.  Safford,  41 
Ohio  St.  1 5. 

170.  Statute  of  limitatiouii.— Each 
call  upon  a  stock  subscriber,  lawfully  made, 
creates  a  distinct  cause  of  action  against  the 
stockholder,  and  a  refusal  to  pay  one  call 
does  not  set  the  statute  of  limitations  run- 
ning against  the  portion  of  stock  remain- 
ing uncalled  for.  Dorsheimer  v.  Glenn,  51 
Fed.  Rep.  404,  4  V.  S.  App.  500,  2  C.  C.  A. 
309.  Kent  County  R.  Co.  v.  Wilson,  5  Houst, 
{Del.)  49. 

It  is  a  settled  rule  that  a  stockholder  is 
not  liable  to  suit  for  the  unpaid  portions  of 
stock  held  by  him  until  an  authorized  call 
or  assessment  has  been  made  upon  the 
stock;  and  this  rule  applies  to  assignments 
of  stock,  and  the  limitation  begins  to  run 
not  from  the  date  of  the  assignment,  but 
from  the  maturity  of  the  assessment. 
Priest  v.  Glenn,  51  Fed.  Rep.  400,  4  U.  S, 
App.  478,  2  C.  C.  A.  305. 

Instalments  of  subscriptions  of  stock- 
holders, fixed  and  required  to  be  paid  in 
by  resolutions  of  the  board  of  directors, 
cannot  be  regarded  as  open  accounts,  and 
prescribed  against  as  such.  Such  instal- 
ments may  be  considered  as  at  least  equal 
to  accounts  stated.  New  Orleans,  J.  &*  G. 
N.  R.  Co.  V.  Lea,  1 2  La.  Ann.  388. 

Subscriptions  to  stock  were  made  on 
April  28,  1853,  conditional  upon  the  adop- 
tion by  the  company  of  a  particular  route. 
This  route  was  adopted  on  March  31,  1857. 
No  calls  were  made  for  the  payment  of  sub- 
scriptions until  June  25  following.  Held, 
that  the  statute  of  limitations  did  not  begin 
to  rur  until  the  several  calls  were  due. 
Tag£(  rt  V.  Western  Md.  R.  Co.,  24  Md.  563. 

Where  a  corporation  sues  a  subscriber  for 
different  calls  on  his  stock,  and  he  inter- 
pose i  a  plea  of  the  statute  of  limitations, 
whi  ;h  is  sustained  as  to  part  of  the  calls 
anr  judgment  is  rendered  against  him  for 
the  remainder,  payment  of  the  judgment 
roes  not  establish  the  fact  that  he  has  paid 
his  whole  subscription,  and  he  is  not  entitled 
to  a  certificate  for  the  whole  amount  of  stock 
subscribed  for.    Johnson  v.  Albany  &*  S.  R. 


Co.,  54  iV.  Y.  416 ;  affirming  5  Lans.  222, 
which  reverses  40  How.  Pr.  193. 

In  Pennsylvania  a  lapse  of  six  years  is  a 
bar  to  an  action  for  a  subscription,  unless 
the  delay  be  satisfactorily  accounted  for. 
McCully  V.  Pittsburgh  &*  C.  R.  Co.,  32  P,i. 
St.  25.— Followed  in  Pittsburg  &  C.  R. 
Co.  V.  Graham,  36  Pa.  St.  77 ;  Pittsburgh  & 
C.  R.  Co.  V.  Graham,  2  Grant's  Cas.  (Pa.)  259. 

The  statutory  penalty  of  one  per  cent,  a 
month  on  unpaid  instalments,  given  by  Pa. 
Act  of  Feb.  19,  1849,  §  8,  is  recoverable  from 
the  time  of  the  respective  calls,  until  judg- 
ment ;  it  does  not  cease  at  the  institution 
of  the  suit.  There  is  no  limitation  of  tirrie 
prescribed  by  that  act,  within  which  such 
statutory  penalty  must  be  sued  for.  Baving- 
ton  V.  Pittsburgh  &*  S.  R.  Co..  34  Pa.  .S/.  358. 

A  person  subscribed  for  stock  on  June  16, 
1847,  "provided  that  the  construction  of 
said  road  is  prosecuted,"  but  retained  his 
subscription  in  his  own  hands  until  1854, 
when  the  book  containing  it,  with  other 
subscriptions  obtained  by  him  as  agent,  was 
delivered  to  the  company.  Held,  that  the 
contract  did  not  take  effect,  nor  did  the 
statute  of  limitations  begin  to  run,  until  the 
delivery  of  the  book.  Pittsburgh  &•  C.  R. 
Co.  V.  Plummer,  37  Pa,  St.  413. 

171.  Uncertainty  or  irregularity 
In  Hubscription.— Where  the  charter  of  a 
company  appoints  commissioners  and  di- 
rects books  of  subscription  to  be  opened  at 
certain  places,  but  also  directs  that  upon 
default  of  payment  by  stockholders  their 
stock  shall  be  sold,  and  books  opened  to 
supply  the  deficiency,  a  subscriber  under 
this  latter  provision  cannot  object  to  pay 
for  his  stock  because  he  subscribed  for  the 
same  at  a  place  where  the  books  were  not 
required  to  be  originally  opened.  Hall  v. 
Selma  6-  T.  R.  Co.,  6  Ala.  741. 

A  subscriber  to  stock  when  sued  defended 
on  the  ground  of  an  uncertainty  in  the  sub- 
scription in  that  it  did  not  appear  whether 
the  whole  of  the  subscription  was  to  be 
expended  on  one  section  of  the  road,  or,  if 
divided,  how  much  was  to  be  applied  to 
each  section.  Held,  that  the  uncertainty 
related  to  an  immaterial  matter,  and  was 
not  a  defense.  Agricultural  Branch  R.  Co. 
v.  Winchester,  13  Allen  (Mass.)  29. 

172.  Unfolr  settlement  with  other 
stockholders.  —  In  an  action  r-<;ainst  a 
stockholder  for  his  subscription,  he  cannot 
object  that  the  directors  of  the  company 
had  released  other  stockholders ;  if  the  re- 


i 


W 

& 

i 


4  'J 

3.i 


m 


SUBSCRIPTIONS  TO  STOCK,  173, 174. 


mi 


iu  I 


['i 


J  i, 


lease  was  under  a  power  it  would  be  valid, 
if  otherwise  merely  void.  Hal/  v.  Selma  &* 
T,  R.  Co.,  6  Ala.  741.  Macon  6-  A.  K.  Co. 
V.  Vason,  57  Ga.  314.  New  Albany  &*  S.  K. 
Co.  V.  Slaughter.  \o  Ind.  218.— Following 
New  Albany  &  S.  R.  Co.  v.  Fields,  10  Ind. 
187. — Anderson  v.  Newcastle  &*  K,  K.  Co., 
13  Ind.  376.  Armstrong  \ .  Dana  Ay,  75  Hun 
405,  27  A^.  y.  Supp.  60,  56  N.  V.  S.  K.  743. 

On  a  proper  case  made,  with  proper  par- 
ties, by  bill  in  equity,  a  stockholder  sued  for 
his  subscription  may  compel  an  equitable 
adjustment  between  himself  and  the  other 
stockholders,  by  which  all  the  stockholders 
shall  be  made  to  pay  equally  for  their  re- 
spective shares  of  stock ;  but  the  fact  that 
others  were  allowed  to  pay  their  entire 
stock  in  depreciated  currency  will  not  abso- 
lutely discharge  him,  especially  when  tlie 
same  privilege  was  accorded  to  him,  and  he 
was  urged  to  avail  himself  of  it.  Macon  &• 
A.  R.  Co.  v.  Vason,  57  Ga.  314. 

Allowing  a  stockholder  during  the  civil 
war  to  pay  up  his  entire  subscription  in  de- 
preciated Confederate  currency  before  regu- 
lar calls  were  made  is  illegal ;  but  such  act, 
being  ultra  vires  on  the  part  of  the  direct- 
ors, will  not  discharge  other  stockholders 
from  paying  on  proper  calls.  Macon  &*  A. 
R.  Co.  V.  Vason,  57  Ga.  314. 

173.  Various  unavailable  defenses. 
— Defendant  was  sued  for  calls  on  stock, 
and  defended  that  after  his  subscription, 
and  without  his  knowledge  or  consent,  a 
certain  city  was  permitted  to  subscribe  for  a 
certain  number  of  shares,  and  that  certain 
individuals  in  New  York  were  permitted  to 
subscribe  for  a  large  number  of  shares  upon 
the  express  understanding  that  they  should 
have  the  proxy  of  the  city,  which  would  give 
to  such  New  York  subscribers  the  control  of 
the  road.  Held,  no  defense,  as  both  the  city 
and  people  residing  in  New  York  had  a 
right  to  become  stockholders,  and  the  city 
had  a  right  to  give  its  proxy  to  whom  it 
might  please.  Ryder  v.  Alton  &»  S.  R.  Co., 
13  ///.  516. 

A  corporation  may  make  consistent  by- 
laws regulating  stock  and  the  manner  of 
voting  it ;  and  it  is  no  defense  to  an  action 
to  recover  a  subscription  that  a  by-law  was 
adopted  requiring  payment  of  the  first  in- 
■talment  before  the  stockholder  was  entitled 
to  vote.  Chandler  v.  Northern  Cross  R.  Co., 
18  ///.  190. 

Where  an  unconditional  subscription  is 
made  it  it  no  defense  that  the  road  has  not 


been  completed  and  may  never  be,  nor  that 
a  certificate  of  stock  has  not  been  tendered 
the  subscriber.  Smith  v.  Gower,  2  Duv. 
(A-jK.)  17. 

It  is  not  fatal  to  the  validity  of  a  contract 
of  subscription  for  stock  that  the  person 
who  procured  it  was  at  the  time  duly  au- 
thorized to  do  so  by  the  company.  It  will 
be  sufficient  to  make  it  binding  on  both 
parties  if  the  company,  in  a  reasonable  time 
thereafter,  ratifies  the  act  of  its  pretended 
agent.  Walker  v.  Mobile  &*  O.  R.  Co.,  34 
Miss.  245. 

The  mere  fact  that  articles  of  association 
misstate  the  length  of  a  railroad  is  not  a 
defense,  in  the  absence  of  fraud,  to  a  suit  to 
recover  a  subscription  for  stock.  Troy  6* 
R.  R.  Co.  V.  R'err.  17  Barb.  (N.  V.)  581. 

One  who  authorizes  the  signing  of  his 
name  as  a  subscriber  to  stock  cannot  avoid 
liability  on  his  unpaid  subscription  by  show- 
ing an  agreement  between  himself  and  his 
debtor,  unknown  to  the  corporation,  bind- 
ing the  debtor  to  make  all  the  payments. 
Williams  v.  Benet,  34  So.  Car.  112,  13  S.  E. 
Rep.  97. 

Where  a  company  gives  a  notice  to  a 
shareholder  that  if  certain  calls  are  not 
paid  by  a  certain  day  the  shares  will  bo 
declared  forfeited,  and  the  calls  are  not  paid 
and  the  defendant  afterwards  tenders  his 
vote  at  a  meeting  of  proprietors,  which 
is  rejected,  but  the  forfeiture  is  never  con- 
firmed by  a  meeting  of  the  company  as 
required  by  its  act,  the  shareholder  cannot 
avail  himself  of  this  state  of  facts  as  a 
defense  to  an  action  for  calls.  Birmingham, 
B.  &•  T.  J.  R.  Co.  v.  Locke,  i  Q.  B.  256,  2 
Raihu.  Cas.  867. 

g.  Waiver  of  Defenses.* 

174.  In  general.t  —  Though  a  sub> 
scription  be  obtained  by  fraud,  the  stock- 
holder may  waive  it  by  assuming  its  advan- 
tages. National  Park  Bank  v.  Nichols,  2 
Biss.  {U.  S.)  146. 

After  having  made  a  subscription  to 
stock  plaintiff  was  induced  by  an  agent  of 
the  company  to  make  a  further  subscription 
payable  in  land  upon  the  promise  that  his 
cash  subscription  should  not  be  demanded 
until  the  road  was  comoleted  ;  but  the 
company  proceeded   to    '  >I!ect   the  cash 

*  See  also  ^j/,  215. 

f  Waiver  by  stockholder  of  objections  to  lia- 
bility, see  note,  32  Am.  &  Eng.  R.  Cas.  16. 


^^ 


SUBSCRIPTIONS  TO  STOCK,  176-177. 


795 


subsci'iption,  and  was  about  to  enforce  col- 
lection of  a  judgment  thereon,  when  plain* 
tiff  sued  to  recover  the  land,  after  tendering 
biick  the  stoclc  received  for  it.  //eM:  (i) 
tiiat  the  contract  to  forbear,  being  founded 
upun  a  valid  consideration,  might  perhaps 
have  been  made  a  defense  to  the  action  on 
the  cash  subscription,  and  would  have  fur- 
nished ground  for  enjoining  its  collection 
until  the  completion  of  the  road;  but  no 
such  defense  having  been  made,  plaintif! 
was  not  entitled  to  a  rescission  of  the  land 
subscription  ;  (2)  but  the  company,  having 
broken  its  contract,  was  liable  for  damages, 
and  the  complaint  was  sufficient  to  authorize 
their  recovery.  Scarce  v.  Indiana  &*  I.  C. 
R.  Co.,  17  Ind.  193;  further  appeal  23 
Ind.  223. 

175.  What  amounts  to  a  waiver. 
— Although  the  provisions  of  an  act  in- 
corporating a  company  necessary  to  make  a 
person  a  proprietor  are  not  complied  with, 
one  who,  by  his  representations  and  claim 
to  be  registered,  precludes  himself  from 
taking  advantage  of  such  objection,  is  lia- 
ble for  calls  on  his  shares.  Cheltenham 
&-  G.  W.  U.  R.  Co.  v.  Daniel,  2  Railw.  Cas. 
728,  2  Q.  B.  281.  Birmittgham,  B.  *«  T.  J. 
R.  Co.  V.  Lode,  i  Q.  B.  256, 2  Ratlw.  Cas.  867. 

A  subscriber  to  stock  who  participates  in 
calling  a  meeting  for  permanent  organiza- 
tion of  the  corporation,  whereat  he  is 
elected  a  director,  and  acts  as  such,  there- 
by waives  his  right  to  avoid  payment  on 
the  ground  that  the  notice  of  the  call 
was  insufiicient.  Bucksport  &*  B.  R.  Co.  v. 
Buck,  68  Me.  81,19  ^*"-  ^y-  R*P'  '<>. 

The  giving,  by  a  subscriber,  of  his  note 
for  the  balance  of  his  subscription,  taking 
therefor,  from  the  company,  a  receipt  stipu- 
lating that  when  paid  the  amount  of  the 
note  should  be  applied  on  his  stock,  is 
/r/m<i!/a»>  a  waiver  of  conditions  precedent. 
Chamberlain  v.  Painesville  &»  H.  R.  Co.,  15 
Ohio  St.  225. 

A  defendant  who  is  a  stockholder  in  a 
company  incorporated  under  Pa.  Act  of 
March  19, 1879,  providing  for  street  railways 
in  cities  of  the  second  and  third  class,  who 
has  participated  in  the  organization  of  the 
company,  who  has  taken  stock  and  acted  as 
a  director,  cannot  set  up  the  unconstitu- 
tionality of  the  law  as  a  defense  to  a  suit  to 
recover  subscribed  stock.  Weinman  v.  Wil- 
kinsburg  6-  E.  L.  Pass,  R.  Co.,  iiS  Pa.  St. 
192,  II  Cent.  Rep.  54,  12  Atl.  Rep.  288,  20 
IV.  N.  C.  455. 


176.  Waiver  mnst  be  with  knowl- 
edge.—  Until  a  corporation  is  organised,  a 
subscription  for  stock  is  a  mere  proposition 
or  agreement  to  take  a  specified  number  of 
shares  in  a  corporation  thereafter  to  be 
formed,  on  condition  that  the  requisite 
number  of  shares  for  the  organization  of 
the  company  shall  be  filled  up  by  subscrip- 
tion, and  the  company  be  legally  organized, 
and  is  not  a  binding  promise  to  pay;  but 
the  subscriber  may  waive  these  conditions 
by  knowingly  attending  meetings  of  the 
company,  participating  in  its  organization, 
or  by  doing  other  acts  indicating  a  consent 
to  become  a  shareholder  before  the  con- 
ditions have  been  complied  with;  but  in 
order  for  such  acts  to  be  a  waiver,  it  must 
clearly  appear  that  the  subscriber  acted 
with  knowledge  that  the  conditions  had 
not  been  complied  with.  Fairview  R.  Co, 
V.  Spillman,  23  Oreg,  587,  32  Pac.  Hep.  688. 

177.  SiibMcriber,  when  estopped 
by  his  acts.  —  If  a  subscriber  to  stock 
acquiesces  in  the  progress  of  the  work,  by 
payment  of  his  subscription,  assessed  or 
otherwise,  he  cannot  afterwards  object, 
either  to  the  failure  originally  to  get  sub- 
scribers to  the  whole  stock,  or  to  a  material 
amendment  of  the  charter ;  but  the  fact 
that  he  merely  pays  his  assessments  to  have 
the  route  surveyed  is  not  sufficient  to  show 
such  acquiescence.  And  where  the  ques- 
tion of  acquiescence  has  been  fairly  sub- 
mitted to  tlie  jury,  and  has  been  passed 
upon  by  them,  with  evidence  enough  to 
sustain  the  verdict,  the  appellate  court  will 
not  interfere.  Memphis  Branch  R.  Co.  v. 
Sullivan,  ijGa.  240.— Distinguishing  May 
V.  Memphis  Branch  R.  Co.,  48  Ga.  109. 

A  subscriber  for  shares  in  a  corporation 
may,  by  his  acts,  be  estopped  from  deny- 
ing the  legality  of  assessments  upon  his 
shares  on  the  ground  that  all  the  shares 
are  not  taken  up.  Ne^v  Hampshire  C.  R. 
Co,  V.  Johnson,  30  N.  H.  390. 

An  original  shareholder  in  a  company 
having,  after  the  passing  of  16  Vict.  c.  51, 
paid  the  culls  made  on  his  shares  before 
the  act  was  passed,  and  voted  at  a  meeting 
of  shareholders,  is  precluded  from  claim- 
ing the  repayment  of  his  instalments  under 
the  fourth  clause  of  the  act.  Barrow  v. 
Ontario,  S.  &*  H.  R.  Co.,  11  U.  C.  Q.  B.  124. 

One  who  has  agreed  to  take  stock  for  the 
purpose  of  enabling  the  company  colorably 
to  comply  with  the  "  Railway  Act,"  and  has 
paid  the  first  assessment  thereon  with  the 


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SUBSCRIPTIONS  TO  STOCK,  178,  t70. 


understanding  that  a  contract  whereby  he 
might  reimburse  himself  should  be  given 
to  him,  cannot,  in  an  action  for  unpaid  baN 
ance  on  the  stock,  deny  being  a  stockholder. 
Port  Whitby  &*  P.  P.  K.  Co.  \.  Jones.  31  U. 
C,  Q.  B.  170.  — Distinguished  in  Port 
Dover  &  L.  H.  R.  Co.  v.  Grey,  36  U.  C.  Q. 
B.  425. 

7.  Instructions,   Ju^gmtnt. 

178.  Instructioim.  —  In  an  action  to 
recover  subscriptions  to  stock,  an  instruc- 
tion that  upon  the  finding  of  certain  facts 
plaintiil  is  entitled  to  recover,  but  omitting 
the  material  facts  of  the  proceedings  of  the 
corporation  calling  for  the  instalments  and 
notice  to  defendant  of  these  calls,  is  erro- 
neous. No  matter  how  clear  the  evidence 
may  have  been  to  prove  these  omitted  facts, 
it  was  necessary  for  the  jury  to  pass  upon 
it.  Maltby  v.  Northwestern  Va.  K.  Co.,  16 
Md,  fit. 

The  court  submitted  to  the  jury,  first, 
what  was  the  purpose  of  a  charter  of  a 
corporation,  and  second,  whether  that  pur- 
pose had  been  changed  by  a  supplement  to 
the  original  act,  with  a  view  to  perpetrate  a 
fraud  on  a  subscriber  to  the  stock.  Held, 
that  this  was  not  error.  Southern  Pa.  I.  &• 
X.  Co.  V.  Stevens,  87  Pa.  St.  190. 

179.  Judgment,  and  how  en- 
forced. —  A  summary  remedy  against  de- 
faulting stockholders  given  to  a  corporation 
by  its  charter  is  no  part  of  its  corporate 
franchises,  and  may  be  altered  or  modified 
by  the  legislature  at  pleasure.  Ex  parte 
Northeast  &*  S.  W.  Ala.  R.  Co.,  yj  Ala.  679, 
Ala.  Sel.  Cas.  608. 

Alabama  Stay  Law  Act  of  Feb.  8,  1861, 
which  prohibits  the  rendition  of  judgment 
at  the  return  term  of  any  "suit,  writ,  sum- 
mons, complaint,  or  bill,"  applies  to  a  sum- 
mary proceeding  by  notice  and  motion  on 
the  part  of  a  railroad  company  against  a 
delinquent  stockholder,  although  its  char- 
ter authorizes  the  rendition  of  judgment  in 
its  favor  at  the  return  term  of  the  notice, 
provided  it  has  been  served  twenty  days 
prior  thereto.  Ex  parte  Northeast  &•  S.  W. 
Ala.  R.  Co.,  37  Ala.  679,  Ala.  Sel.  Cas.  608. 

A  railroad  charter  provided  that  for  non- 
payment of  assessments  the  directors  might 
order  the  treasurer  to  sell  such  shares  at 
auction,  and  that  the  delinquent  subscriber 
should  be  held  accountable  for  the  balance,  if 
the  shares  should  sell  for  less  than  the  assess- 


ments. The  directors  voted  that  the  preil- 
dent  and  treasurer  be  a  committee  to  collect 
arrearages  and  enforce  such  collection  by 
sales  or  otherwise.  Held,  that  a  sale  under 
this  vote  was  void ;  that  the  directors  could 
not  delegate  the  power  of  ordering  sales  to 
a  committee,  and  that  an  order  to  the  treas- 
urer must  be  absolute  and  not  in  the  alter- 
native. York  &»  C.  R.  Co.  V.  Ritchie,  40 
Me.  435. 

A  charter  authorized  the  company  to  sell 
the  shares  of  delinquent  subscribers,  and 
made  the  subscribers  liable  for  the  differ- 
ence between  the  proceeds  of  the  sale  and 
the  amount  due  from  them.  The  charter 
and  by-laws  required  that  subscribers 
should  be  notified  of  assessments  thirty 
days  before  the  order  of  the  directors  to  sell 
the  shares,  that  the  sale  should  be  by  pub- 
lic auction,  at  a  certain  post  office,  and  that 
the  treasurer  should  give  to  the  subscriber  a 
notice  in  hand  signed  by  the  treasurer,  or 
by  a  director  in  his  behalf.  Held:  (i)  that  a 
notice  of  assessment  thirty  days  before  the 
sale  was  not  sufficient ;  (2)  that  a  sale  other- 
wise than  by  public  auction  or  at  any  other 
place  than  the  post  office  was  invalid;  (3)  that 
a  notice  of  sale  given  to  a  subscriber  in 
hand  not  signed  by  the  treasurer  or  a  di- 
rector was  insufficient.  Lewey's  Island  R. 
Co.  T.  Bolton,  48  Me.  451. 

When  the  charter  of  a  company  author- 
izes the  sale  of  stock  of  a  shareholder  to 
pay  unpaid  assessments,  such  sale  is  not 
valid  if  it  is  not  for  a  legal  assessment 
or  if  it  includes  any  illegal  assessment. 
Lewey's  Island  R.  Co,  v.  Bolton,  48  Me.  451. 

A  general  resolution  of  a  company  de- 
claring stock  forfeited  for  non-payment  of 
instalments  must  declare  to  the  stockholder 
that  his  specific  stock  is  forfeited,  otherwise 
it  will  not  be  valid.  Johnson  v.  Albany  &* 
S.  R.  Co.,  40  How.  Pr.  (N,  K.)  193 ;  reversed 
in  5  Lans,  222,  which  is  affirmed  in  54  N, 
V,  416. 

Before  the  passage  of  any  statute  relat- 
ing to  forfeiture  of  stock  by  reason  of  non- 
payment of  assessments,  and  when  the  only 
legislative  provision  in  reference  to  the  mat- 
ter was  contained  in  plaintiff's  charter  to 
the  effect  that  "the  directors  may  require 
payment  of  the  sums  subscribed  to  the  capi- 
tal stock  at  such  times,  and  in  such  propor- 
tions, and  on  such  conditions,  as  they  shall 
deem  best,  under  the  penalty  of  forfeiture 
of  all  previous  payments  thereon,"  the  pro- 
ceeding by  forfeiture  was  cumulative,  and 


SUBSCRIPTIONS  TO   STOCK,  180-189. 


797 


coexisted  with  the  right  to  sue  for  tlie 
assessmentt.  In  declaring  a  forfeiture  of 
stock  the  company  must  adopt  a  course  of 
proceeding  reasonable  and  just  to  the  stock- 
holders. It  was  not  necessary  that  the  no« 
ticc  of  the  conditions  on  which  the  stock 
would  be  forfeited  should  be  issued  when 
the  calls  for  the  assessments  were  made ;  a 
declaration  of  forfeiture,  i.'  .e  Aug.  15,  of 
all  stock  on  which  assessments  should  re- 
main unpaid  Sept.  30  following,  and  requir- 
ing immediate  notice  of  such  declaration  to 
be  given  to  all  delinquents,  is  reasonable. 
Under  such  a  declaration  a  sale  of  the  stock 
is  not  necessary  to  complete  the  forfeit- 
ure, and  a  stockholder  whose  stock  has 
been  thus  forfeited  is  thereby  released 
from  any  further  liability  upon  his  subscrip- 
tion ;  but  a  forfeiture  will  not  take  place 
unless  the  corporation  gives  reasonable  no- 
tice to  the  delinquent  stockholder  that  his 
stock  will  be  forfeited  unless  by  a  specified 
time  the  overdue  assessments  are  paid. 
Rutland  &*  B.  K.  Co.  v.  Thrall,  35  Vt.  536. 

lY.  rOBFEITUBE  FOB  NON-PATMEITT. 

180.  Power  to  enforce  forfeiture, 
generally.  —  A  corporation  has  no  inher- 
ent power  to  forfeit  or  sell  the  shares  of 
stock  held  by  a  delinquent  stockholder. 
That  is  not  a  common-law  remedy,  and  can 
only  be  exercised  when  it  is  expressly  con- 
ferred by  statute.  Budii  v.  Multnomah  St. 
B.  Co.,  15  Or  eg.  413,  15  Pac.Rep.  659. 

The  charter  of  a  street  railway  provided 
thnt  if  a  subscriber  failed  to  pay  any  in- 
stalment of  stock  called  for  for  six  months, 
the  directors  miglit  declare  the  shares  for- 
feited. A  subscriber  failed  to  pay  the  third 
call.  Held,  that  after  lapse  of  six  months 
the  directors  might  declare  the  stock  for- 
feited without  furthernotice  or  proceedings 
against  the  stockholder,  and  equity  would 
not  grant  relief  against  such  forfeiture. 
Germantown  Pass.  R.  Co.  v.  Filler,  60  Pa. 
St.  124. 

181.  Option  to  declare  forfeiture 
or  sue  on  subscription.  —  A  subscriber 
to  stock  cannot  rescind  his  subscription  by 
forfeiting  the  payment  already  made.  The 
right  of  forfeiture  belongs  exclusively  to  the 
corporation,  to  be  used  at  its  election.  It 
may  resort  to  the  common-law  remedy  of 
action  on  the  express  promise  to  pay  the 
amount  of  the  subscription.  KMn  v.  Al- 
ton ^  S.  R.  Co.,  13  ///.  514. 


The  right  to  take  a  forfeiture  of  stock  to 
a  company  does  not  destroy  or  interfere 
with  the  common-law  remedy  of  enforcing 
payment  of  slock  subscribed,  and  the  right 
to  take  a  forfeiture  is  a  privilege  to  be 
exercised  for  the  benefit  of  the  company. 
GratM  V.  Redd,  4  B.  Afon,  (A>.)  178. 

A  clause  in  an  act  of  incorporation 
authorizing  a  forfeiture  of  stock  and  pre- 
vious payments  in  cases  of  non-payment  of 
calls  confers  a  cumulative  remedy,  and 
does  not  deprive  the  company  of  the  right 
to  proceed  by  action  for  the  recovery  of 
subscriptions.  Troy  T.  &•  R.  Co.  v.  AT  'Ches- 
ney,  21  Wend.  (N.  Y.)  296.— Disapproved 
IN  New  Hampshire  C.  R.  Co.  v.  Johnson, 
30  N.  H.  390.— Western  R.  Co.  v.  Avery,  64 
N.  Car.  491.  North  Eastern  A'.  Co.  v. 
Rodr^ues,  10  Rich.  (So.  Car.)  278. 

Nor  is  the  company  limited  to  the  remedy 
by  forfeiture,  although  the  promise  be  ex- 
pressed in  the  subscription  to  be  upon  pain 
of  forfeiting,  etc.,  and  consequently  plain- 
tiff may  declare  upon  such  contract  as  upon 
an  absolute  promise.  Troy  T.  &*  R.  Co,  v. 
M'Chesney,  21  Wend.  (N.  K.)  296. 

182.  When  stock  must  be  sold  be- 
fore suit  for  assessments.— If  a  person 
subscribes  for  sliares  in  a  corporation  and  in 
the  terms  of  his  subscription  makes  a  prom- 
ise to  pay  assessments  thereon,  he  is  liable 
to  an  action  for  all  legal  assessments,  before 
resort  is  had  to  a  sale  of  the  shares  under  the 
charter.  But  where  he  only  agrees  to  take 
a  specified  number  of  shares,  and  makes  no 
promise  to  pay  a  jsessments,  the  shares  must 
be  sold  to  pay  He  assessments  before  an  ac- 
tion can  be  maintained.  New  Hampshire  C. 
R.  Co.  V.Johnson,  y>N.  H.  390. — Approving 
South  Bay  Meadow  Dam  Co.  v.  Gray,  30 
Me.  547  ;  Smith  v.  Natchez  Steamboat  Co., 
I  How.  (Miss.) 479;  Salem  Mill  Dam  Corp.  v. 
Ropes,  6  Pick.  (Mass.)  23 ;  Central  Turnpike 
Corp.  V.  Valentine,  10  Pick.  147.  Disap- 
proving Troy  T.  &  R.  Co.  v.  M'Chesney, 
2!  Wend.  (N.  Y.)  296;  Northern  R.  Co.  v. 
Miller.  10  Barb.  (N.  Y.)  260;  Selma  &  T.  R. 
Co.  V.  Tipton,  5  Ala.  787 ;  Been',  v.  Cahawba 
&  M.  R.  Co.,  3  Ala.  660. 

A  railroad  company  was  incorporated  to 
construct  a  road  from  St.  John  to  the  United 
States  line,  with  $2,000,000  capital,  the  com- 
pany to  proceed  to  locate  and  build  the 
road  when  $50,000  were  paid  in.  The  di- 
rectors were  to  make  assessments  on  the 
shares  from  time  to  time  as  needed,  and  in 
case  of  a  failure  to  pay  the  shares  were  to 


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SUBSCRIPTIONS  TO  STOCK,  183,  184. 


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be  sold  at  public  auction,  the  shareholder 
to  be  liable  therefor  in  case  o(  a  deficiency. 
Afterwards  the  charter  was  amended  so 
as  to  provide  (i)  that  subscribers  to  stock 
should  be  liable  the  same  as  if  the  whole 
capital  had  been  subscribed,  and  the  $50,000 
paid  in,  and  as  if  notices  of  assessment  had 
been  regularly  given ;  (2)  that  notices  of 
assessments  might  be  published  in  a  news- 
paper for  two  months,  aiid  if  not  paid,  the 
company  might  sue  and  recover  "in  the 
same  manner  as  if  the  calls  *  *  *  had 
been  regularly  made"  in  accordance  with 
the  act  of  incorporation.  //<'/</,  that  the 
amendatory  act  was  not  u/ha  vires  under  the 
British  North  America  Act,  1867,  §  92,  sub- 
sec.  10,  limiting  the  powers  of  provincial 
legislatures,  as  the  road  only  extended  "  to  " 
the  United  States  line.  European  &•  N.  A, 
J?.  Co.  V.  rhomas,  14  A'it'W  Brun.  42. 

In  such  case  it  was  also  held,  that  an 
action  of  debt  could  not  be  maintained 
under  the  act  of  incorporation  for  assess- 
ments of  stock,  but  that  the  proceeding  by 
sale  of  the  shares  must  be  adopted,  it  ap- 
pearing that  the  object  of  the  amendment, 
as  shown  by  its  preamble,  was  not  to  alter  the 
remedy  given  by  the  act  of  incorporation, 
but  to  remove  other  difficulties.  European 
&*  N.  A.  R.  Co.  V.  Thomas,  14  New  Brun.  42. 

183.  Sale  of  stock  after  failure  to 
collect  by  8iiit.— A  subscriber  refused  to 
pay  the  assessments  on  his  shares,  and  the 
company,  instead  of  declaring  them  for- 
feited, procured  subscriptions  from  other 
persons  to  the  full  amount  of  the  capital 
stock.  Held,  that  it  could  not  sell  the 
shares  and  sue  the  subscriber  for  the  differ- 
ence between  the  assessment  and  the  sum 
for  which  the  shares  were  sold,  under  Mass. 
St.  ch.  63,  §  9.  Athol  A*  E.  R.  Co.  v.  Pres- 
cott,  no  Mass,  213. 

A  stock  company,  not  having  express 
power  granted  to  declare  a  forfeiture  of 
stock  for  non-payment,  may  sue  for  the 
amount  of  subscription  to  stock,  and  on 
failure  to  collect  full  amount  subscribed 
may  collect  residue  by  sale  of  stock  sub- 
scribed for.  Chase  v.  East  Tenn.,  V.  &•  G. 
R.  Co.,  4  Am.  &*  Eng.  R.  Cas.  349,  5  Lea 
(Tenn.)  415- 

Va.  Code  of  1873,  ch.  57,  gives  to  a  com- 
pany no  lien  on  paid-up  shares  to  secure 
payment  of  unpaid  subscriptions  for  other 
shares ;  and  the  sale  of  such  paid-up  shares 
for  such  purpose  by  the  company  is  un- 
authorized by  the  statute,  and  is  a  nullity. 


Shenandoah  Valley  R,  Co.M.  Griffith,  i^Am 
6*  Eng.  R.  Cat.  120,  76  Va.  913. 

184.  ProceedingM  for  forfeiture 
inuit  follow  the  Htatute  strictly.— 

Where  a  company  obtains  judgment  against 
one  of  its  stockholders  for  calls  upon  his 
subscription,  it  cannot  be  enjoined  by  a 
court  of  chancery  from  enforcing  the  judg- 
ment on  allegations  that  the  work  on  the 
road  was  not  progressing  in  the  manner 
prescribed  in  the  charter,  or  that  the  com- 
pany contemplated  a  departure  from  the 
route  or  a  change  in  the  /«rm/></ designated 
therein.    Ex  parte  Booker,  1 8  Ark.  338. 

Where  the  charter  under  which  a  sub- 
scription is  made  provides  that  subscrip- 
tions should  be  collected  without  relief,  etc., 
and  suit  is  brought  upon  the  subscriptiop 
after  a  consolidation  with  another  compai 
judgment  is  properly  rendered  without  . . 
lief,  etc.    Hayworth  v.  Junction  R.  Co.,  13 
Ind.  348. 

In  an  action  to  recover  the  whole  amount 
of  a  subscription  payable  in  instalments, 
the  company  may  recover  an  instalment 
payable  without  any  proviso  or  conditions, 
though  it  should  fail  in  proving  the  right  to 
the  other  instalments.  St.  Louis  &»  C.  R, 
R.  Co.  v.  Eakins,  30  Iowa  279. 

When  a  statute  prescribes  the  terms  on 
which  shares  of  stock  may  be  sold  for  the 
non-payment  of  assessments  and  the  share- 
holder be  held  to  pay  the  balance  if  the 
shares  are  not  sold  for  a  sum  sufficient  to 
pay  the  assessment,  those  terms  are  con- 
ditions precedent,  and  unless  they  are 
strictly  complied  with  the  sale  is  illegal 
and  the  shareholder  not  chargeable.  Port- 
land, S.  &*  P.  R.  Co.  V.  Graham,  11  Mete. 
(Mass.)  I.— Explained  in  Kennebec  &  P. 
R.  Co.  V.  Jarvis,  34  Me.  360. 

Section  11  of  the  act  incorporating  the 
Wilmington  &  Raleigh  railroad  company, 
in  relation  to  delinquem  stockholders,  does 
not  authorize  a  judgment  against  a  de- 
faulting stockholder  without  his  appear- 
ance or  without  process  to  call  him  into 
court.  Wilmington  &»  R.  R.  Co.  v.  Baker, 
3  Dev.  <S-  B.  (JV.  Car.)  79. 

Where  a  subscriber  to  stock  assigns  for 
the  benefit  of  creditors  before  the  stock  is 
all  paid  up,  a  judgment  against  him  for  the 
balance,  obtained  after  the  assignment,  en- 
titles the  company  to  share  in  a  distribu- 
tion of  the  fund  in  the  assignee's  hands. 
Pittsburgh  &*  S.  R.  Co.'s  Appeal,  2  Grant's 
Cas.  (Pa.)  151. 


SUBSCRIPTIONS  TO  STOCK,  185-187. 


Where  one  tubscribes  to  stock  payable  in 
lumber  to  a  corporation,  already  fully  organ- 
ited,  it  leems  that  no  judgment  for  money 
should  be  had  against  such  subscriber,  at 
kast  until  it  is  shown  that  he  has  failed  to 
comply  with  his  contract,  accor-^ing  to  its 
terms,  after  reasonable  opponnnjty  so  to 
do.  Ntttlts  V.  Marco,  33  .*?».  Car.  47,  1 1  5. 
E.  Rtp.  595. 

180.  Motico  of  sale.— The  non-pay- 
ment of  calls  upon  subscriptions  for  stock, 
if  notice  of  the  calls  and  demand  of  pay- 
ment be  made,  will,  without  other  notice, 
warrant  a  forfeiture  of  the  stock  under 
Ind.  Rev.  St.  1881,  (  3896.  Hill  v.  Nisbet, 
100  Ind.  341. 

A  notice  that  shares  of  stock  will  be  sold 
for  non-payment  of  assessments  on  a  day 
fixed,  and  by  an  auctioneer  named,  who  is 
and  has  long  been  an  auctioneer  in  the  place 
at  which  the  notice  bears  date,  is  insufhcient 
if  it  does  not  express  the  pliic:  of  sale. 
LtxingtoH  &*  W.  C.  X.  Co.  v.  StapUs,  5  Gray 
(Mass.)  520. 

In  such  case  three  days'  notice  of  the  time 
and  place  of  sale  is  unreasonably  short,  and 
therefore  insufficient,  if  the  proprietor  re- 
sides in  a  remote  part  of  another  state. 
Lexington  &*  W.  C.  Ji.  Co.  v.  Staples,  5  Gray 
(Mass.)  520. 

180.  Effect  of  forfeiture  and  sale, 
Keiierully.  —  The  right  of  action  and  the 
power  to  forfeit  shares  for  non-payment  of 
calls  conferred  by  8  &  9  Vict.,  c.  16,  are  not 
alternative  but  cumulative  remedies;  ac- 
cordingly, the  defendant  in  an  action  for 
calls  cannot  plead  that  the  shares  had  been 
declared  forfeited.  Great  Northern  K.  Co. 
V.  Kennedy,  7  D.  &^  L.  197,  4  Ex.  417. 
Inglis  v.  Great  Northern  Jf.  Co.,  i  Macq. 
H.  L.  Cas.  113,  16 /ur.  895. 

A  stockholder  whose  stock  is  forfeited  is 
not  relieved  from  the  payment  of  a  note 
given  by  him  for  stock,  although  there  may, 
after  the  time  when  his  stock  was  forfeited, 
have  been  made  a  material  alteration  in  the 
charter  without  his  assent.  Mitchell  v. 
Home  R.  Co.,  17  Ga.  574. 

Although  a  forfeiture  of  stock  is  a  satis- 
faction of  the  debt,  and,  when  the  right  to 
forfeit  has  been  exercised,  no  action  to  re- 
cover the  subscription  for  the  stock  so 
forfeited  can  be  maintained  by  the  company, 
yet  a  mere  threat,  made  in  the  call,  that  the 
stock  will  be  forfeited  at  a  future  day  if 
payment  be  not  then  made,  will  not  bar  an 
action  to  recover  the  subscription,  espe- 


cially if  it  appear  that  there  was  no  actual 
forfeiture.    Macon  *•  A,  Ji.  Co.  v.   Vaton, 
57  Ga.  314. 
187.  Aotlonfordeflclency.— By  Me. 

Special  Laws  of  1846,  ch.  369,8  5,  delinquent 
subscribers  or  stockholders  in  a  certain 
company  were  made  accountable  for  the 
balance  if  their  shares  should  »  II  for  less 
than  the  assessments  due  thereon,  wi^h  tlie 
interest  and  cost  of  sale.  York  &*  C.  A', 
Co.  V.  Pratt,  40  Me.  447. 

In  an  action  under  Mass.  Rev.  St.  ch.  39, 
§  53,  to  recover  of  a  stockliolder  the  amount 
of  a  deficiency,  where  his  shares  had  been 
sold  for  non-payment  of  assessments,  for 
less  than  sufficient  to  pay  the  same,  plain- 
Ufis  were  ordered  by  the  court  "  to  file  a 
copy  of  the  contract  of  subscription  for 
stock  on  which  said  action  was  brought," 
and  accordingly  filed  a  copy  of  a  written 
contract  of  subscription,  and  the  court  or- 
dered the  copy  so  filed  to  be  made  part  of 
the  record.  Held,  that  the  action  was  not 
brought  on  the  contract  of  subscription; 
that  said  contract  was  inadvertently  made 
part  of  the  record ;  and  that  the  omission 
in  the  declaration  to  allege  performance  of 
the  conditions  precedent  of  said  contract 
could  not  be  taken  advantage  of  by  demur- 
rer. Troy  &*  G.  R.  Co.  v.  Newton,  i  Gray 
{Mass.)  544.  —  Approved  in  Pacific  R. 
Co.  V.  Seely,  45  Mo.  212.  Followed  in 
Amherst  &  B.  R.  Co.  v.  Watson,  4  Gray  61. 

A  sale  of  shares  for  non-payment  of  sev- 
eral assessments,  one  of  which  has  been 
illegally  levied,  is  void,  and  tiie  corporation 
cannot  recover  the  amount  of  tiie  deficiency 
in  the  price  obtained  to  pay  the  assessments, 
in  an  action  on  Mass.  Rev.  St.  ch.  39,  §  53. 
Stoneham  Branch  R,  Co.  v.  Gould,  2  Gray 
(Mass.)  277. 

A  declaration,  in  an  action  by  a  railroad 
corporation,  which  sets  forth  defendant's 
written  subscription  for  a  certain  num- 
ber of  shares  in  its  stock,  and  the  sale  of 
such  shares  for  non-payment  of  assessments, 
for  less  than  enough  to  pay  the  same,  and 
that  defendant  owes  the  amount  of  the 
deficiency,  although  it  does  not  state  that 
defendant  became  a  stockholder,  is  a  dec- 
laration upon  Mass.  Rev.  St.  ch.  39,  §  53, 
and  not  upon  the  contract  of  subscription, 
and  need  not  aver  performance  of  the  con- 
ditions precedent  of  the  contract.  Amherst 
&*  B.  R.  Co.  v.  Watson,  4  Gray  (Mass.)  61. 
—Following  Troy  &  G.  R.  Co.  v.  Newton, 
I  Gray  (Mass.)  S44> 


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SUBSCRIPTIONS  TO   STOCK,  188-190. 


When  a  defendant  is  sued  as  a  stock- 
holder in  a  railroad  corporation  (or  the  sum 
remaining  due  upon  an  assessment  upon 
hit  shares,  after  they  are  sold  for  non-pay- 
ment of  the  assessment,  it  is  competent 
and  sufficient,  (or  the  purpose  of  showing 
him  to  be  such  stockholder  and  liable  (or 
the  assessment,  to  give  evidence  that  he 
signed  a  subscription  paper  (or  shares  be- 
fore the  corporation  was  organized,  that  he 
attended  the  meeting  of  the  stockholders 
for  the  organization  of  the  corporation,  and 
that  he  wrote  and  distributed  votes,  and 
himself  voted  for  directors.  Lexington  &* 
IV.  C.  R.  Co.  V.  Chandler,  13  Mete.  (Mass.) 
311.— Distinguishing  Salem  Mill  Dam 
Corp.  V.  Ropes,  6  Pick.  (Mass.)  23,  9  Pick. 
187;  Central  T^irnpike  Corp.  v.  Valentine, 
10  Pick.  142 :  Newburyport  Bridge  Prop'rs 
V.  Story,  6  Pick.  45,  m.— Distinguished 
IN  Peoria  &  R.  I.  R.  Co.  v.  Preston,  3$  Iowa 
US :  Troy  &  B.  R.  Co.  v.  Tibbits,  18  Barb. 
(N.  Y.)  297. 

188.  Suit  to  set  aside  forfeiture.— 
After  a  corporation  had  made  an  assign- 
ment a  stockholder  refused  to  pay  an  in- 
stalment of  stock  on  the  ground  that  the 
call  was  made  by  the  directors  instead  of 
the  assignee,  and  the  stock  was  declared 
forfeited.  At  the  time  the  stock  was  worth- 
less. Three  years  a(terwards  it  was  valuable, 
and  the  stockholder  filed  a  bill  to  set  aside 
the  for(eiture.  Held,  that  equity  would  not 
grant  relief.  Germantoum  Pass.  R.  Co.  v. 
Fitter ,  60  Pa.  St.  124.— Followed  in  Free- 
man V.  Stine,  15  Phila.  (Pa.)  37. 

T.  8UB80BirTI0H8  UPON  COHDITIOHB. 
I.  In  General.* 

180.  Right  to  receive,  binding 
effect,  etc.— On  acceptance  by  a  company, 
by  entry  on  its  records,  of  conditional  sub- 
scriptions, they  become  binding,  and  the 
subscriber  becomes  a  stockholder.  Notice 
of  acceptance  is  not  necessary  before  suit. 
New  Albany  *•  5.  R.  Co.  v.  McCormick, 
10  Ind.  499. 

A  conditional  subscription  to  stock  is  a 
continuing  offer,  which  is  final  and  absolute 
when  accepted.  Taggart\.  Western  Md.R. 
Co.,  24  Md.  $63. 

*  Conditional  tubscriptions  to  stock  of  rail- 
road companies,  tee  note,  44  Am.  &  Eng.  R. 
Cas.  3J6. 


Conditional  subscriptions  are  not  against 
public  policy,  and  may  be  received  when  not 
forbidden  by  charter,  and  on  the  perform- 
ance of  the  conditions  they  become  abso- 
lute. Chamberlain  v.  Painesville  &*  H.  R. 
Co.,  15  Ohio  St.  225.  Ashtabula  6-  N.  L.  R. 
Co.  V.  Smith.  15  Ohio  St.  328.— Distin- 
guished IN  Memphis,  K.  &  C.  R.  Co.  v. 
Thompson,  1  Am.  Jk  Eng.  R.  Cas.  331,  24 
Kan.  170.  Followed  in  Mansfield,  C.  & 
L.  M.  R.  Co.  V.  Stout,  26  Ohio  St.  241. 
Quoted  in  Armstrongs.  Karshner,  47 Ohio 
St.  276. 

T.'te  weight  of  authority  is  that  a  party 
who  makes  a  conditional  subscription  to 
stock  is  bound,  if  the  condition  is  ulti- 
mately performed,  unless  there  is  an  express 
revocation  by  him ;  but  this  question  is  not 
authoritatively  determined  in  this  case. 
Lowe  V.  Edgefield  &*  K.  R.  Co.,  i  Head 
(Tenn.)  659. 

A  special  and  conditional  subscription  to 
the  stock  of  a  railway  corporation  may  be 
enforced  by  the  company  on  proo(  of  its 
acceptance  of  the  subscription  and  com- 
pliance with  the  terms  thereof.  Stanstead, 
S.  &*  C.  R.  Co.  V.  Brigham,  17  Low.  Can.  54. 

100.  How  construed.  —  A  subscrip- 
tion to  stock  provided  that  subscribers 
might  pay  in  doing  earthwork  in  the  con- 
struction of  the  road,  if  the  same  was  bid 
off  at  a  public  letting,  or  by  taking  so  much 
at  private  letting  of  any  portion  not  other- 
wise let  as  should  be  wanting  to  make  up 
the  amount  of  the  engineer's  estimate.  The 
company  was  to  arrange  that  each  sub- 
scriber might  work  on  his  own  land  so  far 
as  might  be,  and  under  the  direction  of  an 
engineer.  Held,  that  an  advertisement  for 
proposals  to  do  the  work  was  a  "  public  let- 
ting," and  that  a  letting  by  auction  was  not 
necessarily  contemplated.  Eppes  v.  Missis- 
sippi, G.  &^  T.  R.  Co.,  35  Ala.  33. 

Conditional  subscriptions  to  the  capital, 
stock  of  corporations  should  not  be  en- 
couraged ;  and  therefore  stipulations  in 
such  contracts  will,  when  of  doubtful  im- 
port, be  construed  as  independent  cove- 
nants rather  than  as  conditions.  Paducah 
6-  M.  R.  Co.  V.  Parks,  86  Tenn.  554, 8  S.  fV. 
Rep.  842.— Approving  Berryman  v.  Cin- 
cinnati Southern  R.  Co.,  14  Bush  (Ky.)755; 
North  Mo.  R.  Co.  v.  Winkler,  29  Mo.  318 ; 
McMillen  v.  Maysville  &  L.  R.  Co.,  15  B. 
Mon.  (Ky.)  218;  Swartwout  v.  Michigan 
Air  Line  R,  Co.,  34  Mich.  389;  Miller  v. 
Pittsburgh  &  C.  R.  Co.,  40  Pa.  St.  8371 


-y^rm 


SUBSCRIPTIONS   TO  STOCK,  191,  192. 


801 


Chamberlain  v.  Painesville  &  H.  R.  Co., 
15  Ohio  St.  225.  Distinguishing  Curtiss 
V,  Lake  Ontario  Shore  R.  Co.,  80  N.  Y. 
219;  Nashville  &  N.  W.  R.  Co.  v.  Jones,  2 
Coldw.  (Tenn.)  574. 

Defendant,  a  resident  of  Montpelier,  sub- 
scribed for  100  shares  of  $100  each.  At  a 
legal  meeting  of  the  commissioners  of  the 
corporation,  of  whoia  he  was  one,  held  Dec. 
20,  1869,  defendant,  in  the  presence  of  said 
commissioners,  annexed  the  following  writ- 
ten condition  to  his  subscription  :  "  Condi- 
tion that  good  and  responsible  individuals 
in  Montpelier  subscribe  fifty  thousand  dol- 
lars within  one  year  from  above  date,  and  a 
list  of  subscribers,  and  amount  of  each, 
given  me  Jan.  19,  1870."  HM,  that  the 
true  meaning  of  said  condition  was  that  the 
amount  of  defendant's  subscription  was  to 
be  counted  towards  the  $50,000  named 
therein.  Montpelier  &-  W.  H.  H,  Co.  v. 
Langdon, /^S  Vt.  137. 

At  said  meeting,  after  the  condition  was 
annexed  as  aforesaid,  defendant  agreed  that 
if  plaintiff  would  procure  %\o,<x\>  of  sub- 
scriptions from  individuals  in  Montpelier  it 
should  be  a  compliance  :yith  said  condition ; 
and  thereupon  said  commissioners  accepted 
defendant's  subscription,  with  said  condi- 
tion annexed.  Plaintiff  afterwards,  and  be- 
fore the  time  mentioned  in  the  condition, 
relying  upon  defendant's  subscription  and 
his  agreement,  at  great  trouble  and  expense, 
procured  from  good  and  responsible  indi- 
viduals in  Montpelier  subscriptions  to  the 
amount  of  $40,700  besides  defendant's  sub- 
scription, whereof  defendant  was  duly  noti- 
fied. Htld,  that  defendant  was  thereby 
estopped  from  claiming  that  by  the  terms  of 
said  condition  the  amount  of  hit  subscrip- 
tion was  not  embraced  in  said  $50,000. 
Montpelier  &*  W.  R.  R.  Co.  v.  Langdon,  45 
Vt.  137. 

191*  Conditions  precedent  and 
subsequent.  —  Defendant  signed  a  paper 
reciting  that  he  agreed  to  take  the  number 
of  shares  set  opposite  his  name,  but  follow- 
ing his  signature  was  a  statement  that  it 
was  to  be  expended  between  a  certain  river 
and  the  east  line  of  the  state.  Afterwards 
defendant  accepted  the  office  of  director 
and  acted  as  such.  Held,  that  he  must  have 
intended  to  become  a  stockholder  at  once, 
and  that  the  words  following  his  signature 
were  not  intended  as  a  condition  precedent 
upon  the  performance  of  which  he  should 
become  a  member,  but  as  simply  a  direction 
7  D.  R.  D.— 51 


as  to  where  the  amount  of  his  subscription 
should  be  expended.  But  if  the  words  did 
constitute  a  condition  precedent,  the  condi- 
tion was  waived  by  his  acting  as  director. 
Lane  v.  Brainerd,  30  Conn.  565. 

Notes  given  by  a  subscriber  for  stock, 
each  note  being  given  for  an  instalment  of 
his  subscription,  and  each  being  payable  on 
completion  of  a  twenty-mile  section  of  the 
road,  "  ready  for  the  cross-ties,  trestles,  and 
bridges,"  of  which  completion  publication 
by  the  board  of  directors  in  a  newspaper 
was  to  be  conclusive  notice,  were  mature 
and  payable  so  scon  as  such  publication  was 
made,  although  the  notes  described  the  rail- 
road as  one  which  was  to  have  a  certain 
privilege,  and  although  such  privilege  had 
not  yet  been  secured.  The  securing  of  such 
privilege  was  not  a  condition  precedent  to 
payment  for  the  stock.  The  specification 
of  the  privilege  was  part  of  the  description 
of  the  railroad  as  it  was  to  be  ultimately, 
but  not  as  it  was  to  be  at  maturity,  and  on 
payment  of  the  subscriptions  to  the  capital 
stock.  Johnson  v.  Georgia  Midland  &*  G. 
R.  Co.,  39  Am.  &*  Eng.  R.  Cas.  236,  81  Ga. 
725,  8  S.  E.  Rep.  531. 

Though  it  is  specified  in  the  notes  that 
the  road  is  to  be  operated  independently  of 
a  certain  existing  railroad,  this  relates  to 
what  is  to  be  done  after  the  notes  are  paid, 
not  before.  Johnson  v.  Georgia  Midland  &* 
G.  R.  Co.,  39  Am.  6*  Eng.  R.  Cas.  236,  81 
Ga.  725,  8  5.  E.  Rep.  531. 

Though,  to  procure  the  subscription,  the 
corporation  contracted  that  a  side  track 
would  be  constructed  upon  the  premises  or 
"  at  the  place  "  of  the  subscriber,  this  stipu- 
lation contemplated  that  the  side  track 
would  be  constructed  after  the  payment, 
there  being  no  agreement  that  its  construc- 
tion was  to  be  a  condition  precedent. 
Johnson  v.  Georgia  Midland  &»  G.  R.  Co.,  39 
Am.  6*  Eng.  R.  Cas.  236,  81  Ga.  725,  8  S.  E. 
Rep.  531. 

192.  Condition  as  to  amount  of, 
and  intervals  between,  calls.— A  sub- 
scription to  stock  made  and  accepted  on  the 
express  condition  that  "  not  more  than  ten 
per  cent,  shall  be  required  [to  be  paid]  at 
any  one  call,  nor  shall  calls  be  made  more 
frequently  than  once  in  sixty  days  "  is  not 
controlled  by  a  previous  resolution  of  the 
directors  requiring  the  instalment  of  five 
dollars  due  upon  each  share  of  stock  at  the 
time  of  making  the  subscription  to  be  paid 
at  once,  and  ten  per  centum  or  five  dollars 


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SUBSCRIPTIONS  TO   STOCK,  103-106. 


on  each  share  subscribed  to  be  paid  on  the 
1 5th  of  each  month  following,  until  the  whole 
amount  shall  be  paid.  Mansfield,  C.  &*  L. 
M.  R.  Co.  V.  Pettis,  26  Ohio  St.  259,  13  Am. 
Ry.  Rep.  380. 

103.  Necessity  of  performance  on 
part  of  company.  —  A  subscription  to 
stock,  conditioned  to  be  paid  when  the  sum 
of  $5000  is  raised  for  a  certain  purpose, 
is  a  conditional  contract  and  need  not  be 
paid  before  condition  performed.  Chase  v. 
Sycamore  6*  C.  R.  Co.,  38  ///.  215. 

A  person  subscribing  conditionally  to 
stock  is  not  to  be  considered  a  stockholder, 
nor  as  liable  on  the  subscription,  until  the 
company  has  performed  the  condition  upon 
which  his  undertaking  depends.  When  that 
it  done  he  becomes  a  stockholder  by  force 
of  the  agreement  of  the  parties,  and  the 
subscription  becomes  absolute.  Evansville, 
I.  6*  C.  S.  L.  R.  Co.  V.  Shearer,  10  Ind.  244. 

Me.  Special  Law  of  1869,  ch.  206,  merely 
purports  to  afford  a  remedy  when  the 
"terms  and  conditions  of  the  subscription 
have  been  complied  with  " ;  it  does  not  pur> 
pose  to  make  a  contract  for  the  parties 
where  none  had  previously  existed,  nor 
would  it  have  been  competent  for  the  legis- 
lature  to  make  such  contract  had  its  object 
been  to  do  so.  Belfast  &*  M.  L.  R.  Co.  v. 
Unity,  62  Me.  148. 

Where  a  conditional  subscription  to  stock 
is  made  before  the  election  of  directors, 
and,  afte>'  such  election,  the  condition  is 
performed,  the  subscription  takes  effect 
at  the  time  of  performance.  The  first 
instalment  then  becomes  payable,  and  the 
subscriber  is  liable  to  assessment  for  the 
residue.  Ashtabula  &*  N.  L.  R.  Co,  v. 
Smith,  1$  Ohio  St.  328. 

104.  Sufficiency  of  performance.— 
Defendant,  an  individual,  agreed  in  writing 
to  pay  a  certain  sum  to  a  company,  on  con- 
dition that  trains  be  running  within  one 
mile  of  a  specified  place  within  a  fixed  time, 
and  a  depot  be  located  within  one  mile  of 
a  certain  post-ofhce.  On  the  day  specified 
a  passenger  train  ran  to  within  200  yards  of 
the  depot.  Held,  that  this  was  a  substantial 
compliance  with  the  contract  and  the  de- 
fendant was  liable.  Chicago,  D.  &*  M.  R. 
Co.  V.  Schewe,  4$  Iowa  79. 

A  subscription  to  stock  was  "  on  condi- 
tion that  in  the  judgment  of  the  directors 
*  •  *  a  sufficient  amount  is  subscribed  ♦  ♦  ♦ 
to  grade  and  bridge  the  road,  including 
right  of  way ;  *  *  *  otherwise  these  sub- 


scriptions  shall  be  void."  The  director* 
passed  a  resolution  that  in  their  "  judgment 
•  *  *  sufficient  stock  had  been  subscribed," 
etc.  Held,  that  if  the  board  acted  in  good 
faith  in  passing  the  resolution,  the  condition 
was  performed.  Cass  v.  Pittsburg,  V.  &• 
C.R.  Co.,  80Pa.St.3t. 

Evidence  that  the  actual  cost  of  grading 
and  bridging  the  right  of  way  was  much  in 
e.xcess  of  the  amount  subscribed  was  not 
admissible  for  the  defendant  in  a  suit  for 
his  subscription.  The  bona  fides  of  the 
directors'  judgment  was  to  be  tested,  not  by 
the  event,  but  by  what  was  before  their 
minds  when  the  resolution  was  passed.  Cass 
V.  Pittsburg,  V.  6-  C.  R.  Co.,  80  Pa.  St.  31. 

105.  Remedy  of  subscriber  for 
non-performance  by  company.  —  A 
conditional  subscription  was  paid,  by  the 
transfer  of  land  to  the  company,  before  the 
condition  was  performed,  and  the  company 
failed  to  construct  the  road  according  to  the 
condition,  but  transferred  the  land  to  an 
innocent  purchaser.  Held,  in  a  suit  by  the 
subscriber  against  the  company,  that  the 
measure  of  damages  would  be  the  value  of 
the  land  at  the  time  it  was  transferred  to  the 
company.  Jewett  v.  Lawrenceburgh  6*  U. 
M.  R.  Co.,  10  Ind.  539.— Distinguished  in 
Evansville,  I.  &  C.  S.  L.  R.  Co.  v.  Dunn,  17 
Ind.  603 :  Parks  v.  Evansville,  I.  &  C.  S.  L. 
R.  Co.,  23  Ind.  567. 

The  complaint  alleged  that  the  company, 
after  failing  to  perform  such  condition,  ap- 
pointed commissioners  to  settle  with  plain- 
tiff and  others  similarly  situated,  who,  after 
an  examination  on  behalf  of  the  company, 
executed  and  delivered  to  plaintiff  an  agree- 
ment that  the  company  should  refund  the 
amount  paid  on  the  subscription,  with  in- 
terest. Held,  that  plaintiff  might  prove  the 
amount  of  such  conditional  stock  subscribed 
by  others,  the  amount  paid  in,  the  acts  of 
the  commissioners  in  awarding  repayment 
of  such  amounts  to  other  conditional  sub- 
scribers, and  the  payment  by  the  company 
of  the  sums  so  awarded.  Jewett  v.  Law- 
renceburgh &*  U.  M.  R.  Co.,  10  Ind.  539. 

106.  Turn  Insr  conditional  into  a!)- 
solnte  subscription. — One  who  has  sub- 
scribed to  stock  on  conditions  may,  with 
the  assent  of  the  company,  make  his  sub- 
scription absolute,  and  a  note  given  payable 
absolutely,  in  lieu  of  such  conditional  obli- 
gation, will  be  presumed  to  have  been  given 
on  sufficient  consideration.  Henderson  &» 
N.  R.  Co.  V.  JHoss,  i  Duv.  (Ky.)  242. 


SUBSCRIPTIONS  TO  STOCK,  197-190. 


803 


If  a  condition  upon  whicli  a  part  of  the 
subscription  is  payable  has  been  performed, 
and  a  subscriber  gives  his  note,  uncondi- 
tionally, for  the  whole,  payable  at  a  future 
day,  the  postponement  of  payment  of  that 
part  then  due  is  a  sufficient  consideration 
for  a  promise  to  pay  the  residue  before  it 
would  have  been  due  by  the  original  terms. 
Henderson  &*  N,  R.  Co.  v.  Moss,  2  Dtiv. 
{Ky.  242. 

197.  Rescission  or  modification. 
— A  subscription  to  stock  cannot  be  re- 
scinded so  as  to  affect  the  rights  of  corpo- 
ration creditors  while  the  corporation  is 
insolvent;  but  when  the  subscription  is 
conditional,  and  while  the  corporation  is 
solvent,  it  may  be  reduced  and  modified 
according  to  the  terms  of  the  condition; 
and  such  modification,  acquiesced  in  at  the 
time  by  all  parties,  will  not,  after  the  lapse  of 
fifteen  years,  be  set  aside.  Putnam  v.  New 
Albany,  4  Biss.  {U.  S.)  365.— Approving 
Mann  v.  Cooke,  20  Conn.  178.  FOLLOwmo 
Bell  V.  Mobile  &  O.  R.  Co.,  4  Wall.  (U.  S.)  598. 

198.  Waiver  of  conditions.  —  A 
promissory  note  given  for  a  conditional  sub- 
scription of  stock  is  a  waiver  of  the  con- 
dition. O'Donald  v.  Evansville,  I.  6-  C  S. 
L,  K.  Co.,  14  Ind.  259.— Followed  in  An- 
derson V.  Evansville,  I.  &  C.  S.  L.  R.Co., 
14  Ind.  388 ;  Baker  v.  Evansville,  I.  &  C.  S. 
L.  R.  Co.,  14  Ind.  363. 

Where  a  subscription  payiible  in  land  is 
made  upon  a  condition  precedent,  such 
condition  is  waived  by  executing  an  abso- 
lute deed  and  receiving  the  stock  sub- 
scribed for,  before  any  act  on  the  part  of 
the  corporation  indicating  its  intention  to 
comply  with  the  condition.  Parks  v.  Evans- 
ville, r.  &*  C.  S.  L.  R.  Co.,  23  Ind.  567.— 
Distinguishing  Jewett  v.  Lawrenceburg 
&  U.  M,  R.  Co.,  10  Ind.  539.  Following 
Evansville,  I.  &  C.  S.  L.  R.  Co.  v.  Dunn,  17 
Ind.  603. 

A  company  may  show,  by  the  acts  and 
declarations  of  the  party  who  made  a  con- 
ditional subscription,  that  there  has  been  a 
release  or  waiver  of  the  conditions  the  fulfil- 
ment of  which  entitled  the  company  to  re- 
cover at  law,  and  it  is  error  to  refuse  testi- 
mony of  such  character.  Hanover  Junction 
&*  S.  R.  Co.  V.  Haideman,  82  Pa.  St.  36,  1 5 
Am,  Ry.  Rep.  442.— Followed  in  Moore  v. 
Hanover  Junction  ft  S.  R.  Co.,  4  Am.  ft 
Eng.  R.  Cas.  356.  94  Pa.  St.  324. 

The  officiating  u  a  judge  of  an  election 
of  an  Incorporated  company  is  a  waiver  of 


any  alleged  condition  attached  to  the  sub- 
scription for  its  stock  and  renders  such  sub- 
scription absolute.  Pittsburgh  &»  S.  R,  Co. 
V.  Proudfit,  2  Pittsb.  {Pa.)  85.— Following 
Livingston  v.  Pittsburgh  ft  S.  R.  Co.,  a 
Grant's  Cas.  (Pa.)  219. 

2.   Validity  of  Conditions, 

199.  In  senerul.'*'— A  railroad  charter 
authorized  the  company  to  organize  nnd  pro- 
ceed to  construct  its  road  when  $200,000 
should  be  subscribed ;  but  the  corporators 
made  their  subscriptions  conditional  upon 
the  whole  amount  required  for  completion 
of  the  road  being  subscribed.  Held,  that 
this  condition  was  not  inoperative,  as  re- 
pugnant to  the  charter.  Ridgefield  &-  N. 
Y.  R.  Co.  V.  Brush,  43  Conn.  86,  1 1  Am.  Ry. 
Rep.  18.— Distinguishing  Cabot  &  W. 
S.  Bridge  v.  Chapin,  6  Cush.  (Mass.)  50. 

Conditional  subscriptions  to  stock  may  be 
valid.  New  Albany  &»  S,  R.  Co.  v.  McCor- 
mick,  10  Ind.  499. 

Defendant  subscribed  for  stock  subject  to 
certain  conditions,  one  of  which  was  that 
no  assessment  should  be  made  until  enough 
was  subscribed  to  complete  the  road  to  a 
certain  city,  except  enough  to  make  a  pre- 
liminary survey.  The  subscription  was  less 
in  amount  than  the  actual  cost,  and  much 
less  after  deducting  certain  invalid  condi- 
tional subscriptions.  Held,  that  defendant's 
subscription  was  invalid.  Belfast &•  M.  L.  R. 
Co.  V.  Cottrell,  66  Me.  185, 19  Am.  Ry.  Rep.  35. 

N.  Y.  General  Railroad  Act  of  1848  con- 
fers no  power  to  make  conditional  subscrip- 
tions, and  such  a  thing  is  contrary  to  public 
policy.  A  condition  annexed  to  a  subscrip- 
tion to  pay  interest  to  each  subscriber  until 
the  completion  of  the  road  is  illegal  and 
void  :  so  is  a  condition  imposing  an  unau- 
thorized limitation  upon  the  power  to  call 
in  stock,  conferred  on  the  directors  by  the 
statute.  Troy  &»  B.  R.  Co.  v.  Tibbits,  18 
Barb.  {N.  Y.)  297.— Applied  in  Re  Roches- 
ter, H.  ft  L.  R.  Co.,  so  Hun  29, 18  N.  V.  S.  R. 
654. 2  N.  V.  Supp.  457-  Followed  in  Craig 
V.  Andes.  15  Am.  &  Eng.  R.  Cas.  662,  93 

N.  Y  405. 

A  subscription  is  not  invalid  because  it 
contains  conditions  that  it  shall  not  be  pay- 
able until  needed  for  the  construction  ot  a 
certain  portion  of  a  railroad,  and  that  the 

*  Validity   of   conditional    subscriptions   to 
stock,  see  note,  81  Am.  Dec.  398. 


m 


i 


at 


804 


SUBSCRIPTIONS  TO  STOCK,  200-203. 


amount  paid  shall  be  applied  solely  to  the 
construction  of  that  portion,  and  shall  draw 
interest  until  a  certain  portion  of  the  road 
is  completed.  Milwaukee  &*  N.  I,  li.  Co.  v. 
Field,  12  IVti.  340.— Followed  in  Racine 
County  Bank  v.  Ayres.  12  Wis.  512. 

A  conditional  subscription  is  not  invalid 
if  the  condition  itself  is  not  of  such  a  char- 
acter as  to  make  the  agreement  void  on  the 
ground  of  public  policy.  Racine  County 
Bank  V.  Ayres,  12  tVis.  512.— Following 
Fox  River  Valley  R.  Co.  v.  Shoyer,  7  Wis. 
365 ;  Milwaukee  &  N.  I.  R.  Co.  v.  Field,  12 
Wis.  340. 

A  stipulation  on  the  part  of  the  company 
that  the  amount  paid  on  a  subscription 
shall  bear  interest  until  dividends  shall  be 
declared  does  not  render  it  invalid.  Racine 
County  Bank  v.  Ayres,  12  Wis,  512. — Fol- 
lowing Milwaukee  &  N.  I.  R.  Co.  v.  Field, 
12  Wis.  341. 

200.  Couditional  subscriptions 
made  prior  to  ort^auization.  —  Under 
Oreg.  Code,  §  3221,  requiring  corporate  arti- 
cles to  be  filed  and  a  charter  obtained  before 
any  stock  is  subscribed,  a  subscription  to 
stock  before  organization  is  only  an  agree- 
ment to  take  stock  in  a  corporation  which  is 
to  Le  organized ;  hence  such  subscribers  may 
attach  conditions  to  their  subscriptions, 
and  the  subscriptions  after  organization 
will  not  be  deemed  absolute,  nor  the  con- 
ditions void.  Fairview  R.  Co.  v.  Spillman, 
23  Oreg.  587,  32  Pac.  Rep.  688.— Distin- 
guishing Burke  v.  Smith,  16  Wall.  U.  S.) 
396;  Caley  v.  Philadelphia  &  C.  County  R. 
Co.,  80  Pa.  St  367 ;  Boyd  v.  Peach  Bottom 
R.  Co.,  90  Pa.  St.  172;  Pittsburgh  &  S.  R. 
Co.  V.  Biggar.  34  Pa.  St.  455. 

Conditions  attached  to  subscriptions  to 
stock  by  the  commissioners  appointed  to 
receive  them  preparatory  to  the  procure- 
ment of  a  charter  are  not  binding.  Bed- 
ford R.  Co.  v.  Bowser,  48  Pa.  St.  29.— Dis- 
tinguished IN  Bell's  Gap  R.  Co.  v. 
Christy,  79  Pa.  St.  54. 

But  in  such  case  the  subscription  is  valid 
and  binding,  and  the  condition  null  and 
void.  Boyd  v.  Peach  Bottom  R.  Co.,  90  Pa. 
St.  169. 

Where  subscriptions  are  made  to  the 
stock  of  a  corporation  previous  to,  and  for 
the  purpose  of  procuring,  a  charter,  any  con- 
ditions annexed  thereto,  whether  written  or 
parol,  are  void.  But  after  the  organization 
of  the  company  a  condition  is  binding,  and 
ordinarily  this  is  so  though  it  rest  in  parol 


only,  where  except  for  such  condition  the 
subscription  would  not  have  been  made, 
and  provided  the  rights  of  co-subscribers 
are  not  affected  thereby.  McCarty  v.  Se- 
linsgrove  &*  N.  B.  R.  Co.,  87  Pa.  St.  332. 

201. subsequent  to  organiza- 
tion.— Subscriptions  made  before  a  com- 
pany is  organized  must  be  unconditional. 
But  after  the  organization  the  company  may 
stipulate  with  subscribers  that  they  may 
pay  in  any  manner  mutually  agreed  on; and 
it  can  enforce  a  subscription  only  according 
to  its  conditions.  Pittsburgh  S*  C.  R.  Co. 
V.  Stewart,  41  Pa.  St.  S4. 

After  the  approval  of  an  act  of  assem- 
bly incorporating  a  company,  conditional 
subscriptions  to  the  capital  stock  of 
the  company  are  valid,  and  this  though 
made  before  letters  patent  are  issued,  the 
company  having  afterwards  fulfilled  con- 
ditions necessary  to  their  issuance.  Han- 
over Junction  &*  S.  R.  Co.  V.  Grubb,  82  Pa. 
St.  36,  llAtn.Ry.  Rep.  442. — DISTINGUISH- 
ING Bavington  v.  Pittsburgh  &  S.  R.  Co.,  34 
Pa.  St.  358. 

After  the  organization  of  a  tramway  cor- 
poration, and  the  full  payment  of  the  mini- 
mum amount  of  stock  as  provided  by  the 
charter,  a  stockholder,  under  a  resolution 
to  extend  the  road,  and  for  that  purpose, 
signed  an  agreement  to  increase  his  stock 
subscription,  payable  partly  in  lumber  and 
partly  in  money.  He  accordingly  advanced 
more  than  the  amount  payable  in  money, 
and  also  made  other  advances ;  after  which 
the  directors  abandoned  the  proposed  ex- 
tension, released  such  stockholder  from  his 
agreement,  and  recognized  the  advances  so 
made  as  a  debt;  and  this  debt  was  subse- 
quently reduced  to  judgment.  Held,  that 
the  action  of  the  board  of  directors  was 
legal,  and  that  a  receiver  of  the  corporation 
was  not  entitled  to  recover  any  part  of  the 
subscription  so  conditionally  made  after  the 
organization  of  the  company,  and  after  the 
debts  of  the  company  had  been  contracted. 
Nettles  V.  Marco,  33  So.  Car.  47,  11  S.  E. 
Rep.  595.  —  Quoting  Flagg  v.  Manhattan 
R.  Co.,  10  Fed.  Rep.  413. 

202.  Parol  conditions.  —  A  parol 
condition  to  a  subscription  of  stock  will 
not,  if  violated,  invalidate  the  subscription, 
because  it  forms  no  part  of  the  written 
contract  of  the  parties.  Cunnitigham  v. 
Edgefield &»  K.  R.  Co.,  2  Head  (Tenn.)  23. 

203.  Effect  of  Tagneiiess  or  im- 
possibility of  performance.— Defend- 


T"^ 


SUBSCRIPTIONS  TO  STOCK,  204,  205. 


8d5 


Co. 


ant  subscribed  for  stock  of  a  corporation, 
on  condition  that  a  certain  proposition 
made  by  him  should  be  accepted  by  the 
company  Out  this  proposition  was  so  gen- 
eral in  Its  terms  that  it  could  only  be  treated 
as  the  basis  of  a  contract,  which  when  drawn 
up  was  so  variant  from  the  proposition  that 
it  was  repudiated  by  defendant.  NeM,  that 
no  action  couid  be  maintained  on  the  sub« 
scriptioi),  though  the  company  had  accepted 
the  proposition.  Oldtown  &•  L,  H.  Co.  v. 
Veazie,  39  Me.  571. 

A  subscription  for  stock  contained  a  stip* 
ulation  that  the  subscriber  might  forfeit  his 
stock  after  paying  one  third  of  the  amount, 
provided  notice  be  given  to  the  company 
prior  to  a  date  named  which  was  five  days 
before  the  subscription  was  made.  Htld, 
that  such  notice  being  impossible,  the  con- 
dition really  never  existed.  Racine  County 
Bank  V.  Ayres,  12  Wis,  512. 

3.  Certain  Amount  of  Stock  to  bt  Subscribed. 

204.  Such  condition  valid. —  De- 
fendant subscribed  for  certain  shares  of 
stock  upon  condition  that  his  subscription 
should  nut  be  binding  until  the  aggregate 
sum  of  $800,000  in  bona  fide  subscriptions 
should  be  taken.  Subsequently,  by  agree- 
ment between  him  and  the  company,  the 
total  of  such  aggregate  subscriptions  was 
reduced  to  $700,000.  Held,  that  this  did 
not  convert  his  subscription  into  a  mere 
agreement  to  subscribe,  nor  render  it  in- 
valid. Emmitt  v.  Sprinf^ field,  J.  &*  P.  R. 
Co.,  31  Ohio  St.  23.  16  Am.  Ry.  Rep.  266. 

Defendant  filed  a  plea  that  the  express 
condition  of  his  subscription  for  the  shares 
sued  on  was  that  $100,000  should  be  sub- 
scribed, applicable  wholly  to  the  construc- 
tion of  the  road  from  Port  Dover  to  Wood- 
stock, before  any  calls  should  be  made  in 
respect  of  his  shares ;  that  he  never  waived 
this  condition,  and  that  said  sum  had  not 
been  subscribed.  The  company  was  incor- 
porated to  build  a  road  from  Port  Dover  to 
Woodstock  with  power  to  extend  the  same 
to  Stratford,  Held,  good.  It  was  compe- 
tent tor  the  company  to  receive  subscriptions 
of  stock  to  be  applied  to  the  main  line  and 
the  extension  separately,  provided  the  con 
dition  was  expressed  in  the  subscription,  and 
was  not  a  secret  qualification.  Port  Dover 
&*  L.  H.  R.  Co.  V.  Grey.  36  U.  C.  Q.  B.  425. 
—Distinguishing  Port  Whitby  &  P.  P  R. 
Co.  V.  Jones,  31  U.  C.  {^.  B  170 


20ff.  How  construed  —  Rlfi^hts  of 
subscriber.  —  Where  the  whole  amount 
of  the  stock  of  a  corp>.-ation  is  not  fixed 
by  its  charter,  but  has  been  fixed  by  a  reso- 
lution  or  by-law,  it  is  not  necessary  to  the 
validity  of  a  subscription  made  thereafter 
that  the  whole  amount  thus  fixed  should 
be  subscribed  for.  Kennebec  &*  P  R.  Co.  v. 
Jarvis,  34  Me.  360.  —  DISTINGUISHED  IN 
Somerset  &  K.  R.  Co.  v.  Cushing,  45  Me. 
524.  Quoted  in  Hoagland  v.  Cincinnati 
&  Ft.  W.  R.  Co..  18  Ind.  452 ;  Bucksport  ft 
B.  R.  Co.  V.  Buck,  65  Me.  536. 

Defendant  subscribed  for  stock  upon  con- 
dition that  net  less  than  the  minimum  sum 
required  by  the  charter  should  be  sub- 
scribed. Held,  that  it  was  not  competent 
for  him  to  show  that  certain  shares  were 
subscribed  by  persons  of  no  pecuniary  re- 
sponsibility, and  reputed  not  to  be  respon- 
sible, in  the  absence  of  any  evidence  of  bad 
faith  on  the  part  of  the  company.  Penob- 
scot R.  Co.  v.  White,  41  Me.  512. 

In  such  case  the  declarations  of  a  stock- 
holder whose  subscription  is  alleged  to  be 
fraudulent,  made  long  after  the  company 
was  organized,  are  not  admissible  upon  th*^ 
question  whether  the  company  acted  in 
good  faith  at  the  time  of  its  organization. 
Penobscot  R.  Co.  v.  White,  41  Me.  512. 

The  capital  stock  of  a  company  was  to 
consist  of  not  less  than  $100,000,  nor  more 
than  $1,200,000;  the  road  to  be  from  Bangor 
to  Bucksport,  and  then  to  Ellsworth  (forty 
miles).  The  corporators  accepted  the  chp.r- 
ter  and  chose  directors,  among  whom  was 
defendant,  who  was  afterwards  chosen  presi- 
dent, and  authorized  to  purchase  land  and 
issue  scrip  therefor.  Defendant  with  others 
signed  a  subscription  book  reciting  that: 
"  We,  the  subscribers,  *  *  ♦  bind  ourselves 
and  our  heirs  to  pay  the  sum  written 
against  our  names,  as  called  for  by  the 
treasurer  hereafter  to  be  elected,  same 
being  part  of  the  capital  stock,  for  the  pur- 
pose of  constructing  a  railroad  from  Bucks- 
port  to  Bangor  [eighteen  miles],  *  *  *  said 
road  to  be  built  under  the  provisions  of 
a  charter  entitled,"  etc.  "  No  subscription 
shall  be  binding  until  the  sum  of  $100,000 
shall  have  been  subscribed  by  good  and  re- 
sponsible parties."  Defendant  subscribed 
$15,000;  the  aggregate  subscription,  includ- 
ing that  of  the  town  of  Bucksport,  amounted 
to  $334,500.  A  directors'  meeting,  defend- 
ant being  present,  voted  that  the  subscript 
tion  of  defendant  and  others  be  accepted 


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SUBSCRIPTIONS  TO  STOCK,  806,  807. 


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upon  the  conditioni  thereia  stated.  The 
load  was  built  (ron.  Bucksport  to  Bangor. 
JJt/d,  in  a  suit  against  defendant  for  his 
subscription,  that  the  action  was  maintain- 
able ,  that  defendant's  liability  did  not  de- 
pend upon  the  number  of  shares,  or  upon 
any  specific  and  fixed  capital,  but  upon  the 
terms  oi  his  agreement.  Bucksport  &*  B.  R. 
Co.  V.  Buck,  65  Mt,  536,  9  Am.  liy.  Rep.  293. 
—Distinguishing  Somerset  &  K.  R.  Co.  v. 
Gushing.  45  Me.  524,  Somerset  R.  Co.  v. 
Clarke,  61  Me.  380.  Quoting  Kennebec 
&  P.  R.  Co.  V.  Jarvis,  34  Me.  360. 

Defendant  subscribed  to  stock,  by  an 
agreement  which  recited  that  the  state  had 
resolved  to  take  two  fifths  of  the  stock  of 
plaintiff  corporation,  when  three  fifths  had 
been  taken  by  private  individuals,  with  the 
proviso  that  "  if  a  sufficient  subscription  is 
not  obtained  to  secure  the  subscription  of 
the  state,  within  twelve  months  from  the 
1st  of  February,  1837,  each  of  us  may.  if  we 
think  proper,  withdraw  his  subscription  and 
be  entitled  to  receive  back  whatever  sum 
may  have  been  advanced  thereon  within 
twelve  months  from  the  said  date."  De- 
fendant paid  a  part  of  his  subscription  after 
February  i,  1838.  Htld,  that  he  was  bound 
to  pay  the  remainder  of  his  subscription, 
unless  he  should  show  that  the  required 
amount  had  not  been  subscribed  to  entitle 
the  company  to  the  state's  subscription,  and 
that  in  consequence  theteof  he  had  elected, 
within  a  reasonable  time  after  the  expira- 
tion of  the  twelve  months,  to  withdraw  his 
subscription.  Wilmington  &»  R.  R.  Co.  v. 
Robeson,  $  /red.  (N.  Car.)  391. 

200.  Necessity  of  performance.— 
In  an  action  on  a  subscription  conditioned 
upon  a  certain  amount  being  subscribed, 
the  plaintiff  must  show  affirmatively  that 
the  amount  named  had  been  subscribed 
before  suit.  Galena  &*  S.  W.  R.  Co.  v. 
Ennor,  1 16  ///.  55,  4  A.  E.  Rep.  76a. 

A  subscription  to  take  a  certain  number 
of  first  mortgage  bonds,  containing  a  clause 
that  it  is  not  to  be  binding  unless  100  of 
•uch  bonds  are  subscribed  for,  is  not  bind- 
ing until  100  of  the  bonds  are  so  subscribed. 
Galena  &*  S.  fV.  R.  Co.  v.  Ennor,  116  ///. 
l^.^N.E.  Rep.  762. 

Where  a  subscription  to  stock  is  con- 
ditioned that  the  company  shall  not  enter 
into  any  contract  for  the  construction  of  its 
road  until  a  certain  number  of  shares  are 
taken,  the  books  of  the  directors  are  com- 
petent evidence  to  show  the  fulfilment  of 


the  condition,  if  the  directors  had  authority 
to  act.  But  such  condition  is  a  condition 
precedent,  and  the  company  cannot  enforce 
the  collection  of  the  subscription  until  it 
has  complied  with  the  conditions.  Penob- 
scot &*  K.  R.  Co.  v.  Dunn,  39  Me.  $87. 

A  subscription  paper  which  provides  that 
assessments  may  be  laid  "  when  3000  shares 
have  been  subscribed  "  does  not  authorize 
the  laying  of  an  assessment  until  the  stipu- 
lated amount  has  been  unconditionally  sub- 
scribed, payable  in  cash.  Tr(y  &*  G.  R.  Co. 
v.  Newton,  8  Gray  (Mass.)  596.— Distin- 
guished IN  Boston,  B.  &  G.  R.  Co.  v.  Wel- 
lington, 113  Mass.  79.  Quoted  in  Ridge- 
field  &  N.  Y.  R.  Co.  V.  Brush,  43  Conn.  86. 

Such  a  provision  does  not  include  a  sub- 
scription, by  a  contractor  for  building  a 
railroad,  of  a  certain  number  of  shares, 
"being  a  portion  of"  a  sum  which,  by  his 
contract,  was  to  be  paid  to  him  in  stock  at 
par,  or,  in  case  of  any  stock  being  issued  by 
the  corporation  below  par,  then  at  the  rate 
of  the  lowest  issue.  Troy  &*  G.  R,  Co.  v. 
Newton,  8  Gray  (Mass.)  596. 

A  party  subscribing  on  condition  that  a 
certain  amount  of  stock  be  subscribed  can- 
not be  made  liable  until  it  is  shown  that 
this  has  been  complied  with,  and  that  the 
instalments  were  subsequently  called  in  be- 
fore suit  brought.  But  an  error  in  making 
the  call  before  the  liability  accrued  may  be 
corrected  by  a  subsequent  call  after  the  con- 
dition was  fulfilled  and  before  suit  brought. 
Philadelphia  &•  W.  C.  R.  Co.  v.  Hickman, 
28  Pa.  St.  318. 

207.  What  amounts  to  perform* 
ance.  —  An  agreement  to  subscribe  for 
stock  upon  a  stipulated  condition  is  not 
binding  unless  the  condition  is  complied 
with.  So  where  a  subscription  is  made  on 
condition  that  $150,000  shall  be  secured 
before  the  corporation  is  organized,  the 
subscriber  is  not  bound  where  an  organi- 
zation is  efifected  upon  a  subscription  of 
$130,000.  Santa  CruM  R.  Co.  v.  SchwartM, 
S3  Cal  106. 

Def'jndant  subscribed  for  stock  on  con- 
dition that  no  assessment  should  be  made 
above  two  per  cent,  until  the  estimated  cost 
of  the  road  should  be  subscribed.  Defend- 
ant was  active  in  soliciting  subscriptions, 
became  a  director,  and  acted  in  different 
meetings  of  stockholders  and  directors 
taking  steps  toward  letting  contracts  for 
tiie  construction  of  the  road,  and  making 
assessments  as  much  at  forty  per  cent,  upon 


SUBSCRIPTIONS  TO   STOCK,  208-210. 


807 


Stock ;  but  it  did  not  appear  that  he  voted 
for  such  assessments.  HelJ,  that  he  Wiis 
not  estopped  thereby  from  showing  that 
the  condition  imposed  had  not  been  com- 
plied with  and  that  the  subscription  was 
not  binding.  Ridgefield  &*  N.  Y.  R.  Co.  v. 
Reynolds,  46  Conn.  375. 

Otherwise,  it  seems,  if  defendant  had 
voted  for  the  assessments.  Ridgefield  &*  N. 
Y.  R.  Co,  V.  Reynolds,  46  Conn.  375. 

Defendant  and  others  signed  »n  agree- 
ment to  pay  to  a  street-car  company  a  certain 
sum  of  money,  on  condition  that  the  com- 
pany would  purchase  a  certain  lot  and  erect 
its  depot  thereon.  The  sum  required  to 
purchase  the  lot  was  $2000,  which  was 
known  before  the  contract  was  made.  Of 
this  amount  only  $600  were  subscribed,  the 
balance  being  made  up  in  cash  contribu- 
tions, held,  that  an  action  on  the  contract 
could  be  maintained.  Springfield  St.  R. 
Co.  V.  Sleeper,  I3i  Mass.  29. 

Defendant  subscribed  for  stock  in  a  New 
Hampshire  corporation,  iipon  the  condition 
that  the  subscribers  should  not  be  liable  for 
their  subscriptions  until  2000  shares  should 
be  taken  in  cash  or  its  equivalent.  After- 
wards another  company  was  chartered  in 
Massachusetts,  with  power  to  unite  with 
the  New  Hampshire  company  ;  and  a  town 
in  Massachusetts  was  empowered  to  sub- 
scribe for  a  certain  amount  of  stock  in  the 
Massachusetts  corporation,  which  it  did. 
Afterwards  a  union  was  formed  between 
the  two  corporations.  Without  counting  in 
the  subscription  of  the  town  2000  shares 
were  not  taken.  Held,  that,  inasmuch  as 
the  Massachusetts  corporation  was  not  in 
existence  at  the  time  of  the  subscription, 
there  was  no  latent  ambiguity  in  the  con- 
tract as  to  what  railroad  was  meant,  and 
parol  evidence  was  therefore  not  admissible 
to  show  that  the  parties  understood  and  in- 
tended by  it  the  united  enterprise ;  that  the 
condition  upon  which  the  subscription  was 
made  had  not  been  performed,  and  defend- 
ant was  not  liable.  Monadnock  R.  Co.  v. 
Felt,  52  N.  H.  379,  2  Am.  Ry.  Rep.  186. 

208.  Waiver  of  performance.  — 
When  it  is  a  condition  precedent  in  a  con- 
tract for  the  subscription  to  stock  that 
other  stock,  to  a  given  amount,  shall  have 
been  taken,  that  condition  is  waived  by  the 
conduct  of  the  party  in  paying  the  first 
instalment  on  the  subscription,  voting  the 
whole  stock  at  an  election  for  oflicers,  and 
acting  as  an  officer  in  the  corporation  under 


that  election.    Dayton  &*  C.  R.  Co.  v.  Hatch, 
I  Disney  {Ohio)  84. 

In  a  subscription  to  stock,  a  condition 
that  it  was  not  to  be  binding  until  $500,000 
were  subscribed  is,  to  that  extent,  waived  by 
a  proviso  that  a  section  of  the  road,  begin- 
ning at  the  village  of  W.,  and  ending  at  the 
village  of  P.  or  C,  might  be  built  when 
2000  shares  of  the  par  value  of  $100  each 
should  be  subscribed.  Woonsocket  Union 
R.  Co.  v.  Sherman,  8  R.  I.  564. 

4.  Portion  of  Road  to  be  Built  or 
Graded. 

209.  Validity.— A  stipulation  in  a  rail- 
road  charter  that  certain  subscriptions  for 
stock  shall  be  applied  to  the  construction  of 
the  road  between  designated  places  does  not 
invalidate  the  subscriptions.  Milwaukee  &* 
N.I.R.  Co.v.  Field,  12  Wis.  340.— Followed 
IN  Racine  County  Bank  ».  Ayrcs,  12  Wis.  512. 

210.  How  construed.  —  An  agree- 
ment to  subscribe  for  one  share  of  stock, 
and  to  pay  therefor  the  sum  of  $100,  on 
demand,  "  provided  the  same  is  not  to  be 
paid,  or  any  part  thereof,  until  said  road  is 
graded  between  certain  points  within  one 
year  from  date,"  is  an  agreement  to  pay  the 
company  $100  on  demand,  after  the  pre- 
scribed conditions  are  fulfilled,  and  not  an 
agreement  to  pay  what  may  be  the  market 
value  of  a  share  of  stock.  North  &*  S.  R. 
Co.  v.  Winfree,  51  Ga.  318. 

Where  a  subscriber  to  stock  agrees  to  take 
a  certain  number  of  shares  when  the  ro..  1 
reaches  a  designated  point,  when  the  road 
reaches  that  point  the  subscription  becomes 
absolute  and  is  payable  on  demand,  and  no 
further  act  of  subscription  is  necessary  in 
order  to  convert  the  original  conditional 
subscription  into  an  absolute  obligation. 
Webb  V.  Baltimore  <S-  E.  S.  R.  Co.,  54  Am.  5* 
Eng.  R.  Cas.  202,77  Md.  92,  26.^4//.  Rep.  113. 

An  agreement  to  pay  a  certain  sum  to  the 
order  of  a  company  "  in  six  months  after 
the  first  cars  run  over  the  road  from  "  one 
specified  point  to  another  inside  the  con- 
templated termini  does  not  postpone  the 
period  of  payment  until  after  the  comple- 
tion of  the  whole  road.  Toledo  &*  A.  A. 
R.  Co.  v.  Johnson,  55  Mich.  456,  21  A';  W. 
Rep.  888.— Followed  in  Gardner  v.  Walsh, 
95  Mich.  505. 

Defendant  subscribed  to  stock  to  be  paid 
when  the  road  was  completed.  The  com- 
pany, being  unable  to  complete  the  road, 


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SUBSCRIPTIONS  TO  STOCK,  211. 


duly  executed  its  deed  purporting  to  sell 
and  transfer  its  roadbed,  right  of  way,  sub* 
•criptions,  and  other  property  to  another 
company,  which  completed  the  road,  and 
was  afterwards  consolidated  with  still  an- 
other company.  Held,  that  neither  section 
3300  nor  section  3409  of  Ohio  Rev.  St.  con- 
ferred authority  to  sell  and  transfer  the  sub- 
scription of  defendant,  and  no  ownership 
in  the  subscription  passed  to  the  grantee 
company  by  virtue  of  the  deed  ;  and  the 
subscription  being  conditional,  the  grantee 
company  did  not,  by  performing  the  condi- 
tion precedent  named  in  the  subscription, 
make  absolute  the  liability  of  the  subscriber. 
To/edo,  C.  &»  St.  L.  K.  Co.  v.  Hinsdale,  45 
Ohio  St.  556,  1$  JV.E.  Rep.  665.— DISTIN- 
GUISHING Mansfield,  C.  &  L.  M.  R.  Co.  v. 
Stout,  26  Ohio  St.  241.  Quoting  Thomas 
w.West  Jersey  R.  Co.,  .01  U.  S.  71.  —Dis- 
tinguished IN  Armstrong  v.  Karshner,  47 
Ohio  St.  276. 

A  subscription  to  stock,  the  payment  of 
which  is  dependent  upon  the  completion  of 
a  part  of  the  road,  may  be  enforced  against 
the  subscriber  after  the  company  has  fully 
complied  with  the  condition,  although  when 
the  subscription  was  made  the  company 
had  not  expended  ten  per  centum  of  its  au- 
thorized capital  in  the  construction  of  its 
road,  nor  obtained  actual  bona  fide  subscrip- 
tions to  its  capital  stock  to  the  amount  of 
twenty  per  centum  thereof.  Though  such 
subscription  when  made  was,  under  Ohio 
Rev.  St.  §  3298,  unauthorized,  it  neverthe- 
less constituted  a  continuing  offer  of  the 
subscriber  to  pay  the  amount  subscribed, 
upon  the  performance  of  the  conditions 
therein  contained,  which,  when  not  with- 
drawn before  the  conditions  were  fully  com- 
plied with,  became  an  absolute  subscription, 
and  payment  thereof  cannot  be  defeated  on 
the  ground  that  the  company  was  without 
corporate  capacity  to  receive  it.  Armstrong 
v.  karshner,  44  Am.  &*  Eng.  R.  Cas.  238,  47 
Ohio  St.  276,  24  N.  E.  Rep.  897.—  QUOTING 
Ashtabula  &  N.  L.  R.  Co.  v.  Smith,  15  Ohio 
St.  336 ;  Mansfield,  C.  &  L.  M.  R.  Co.  v.  Stout, 
26  Ohio  St.  254.— Followed  in  Lesher  v. 
Karshner,  47  Ohio  St.  302. 

Defendant  subscribed  to  capital  stock, 
and  promised  to  pay  the  amount  "  when  the 
track  of  the  road  should  be  laid  ready  for 
the  running  of  cars  "  between  certain  desig- 
nated places.  The  subscription  contained  a 
further  condition  that  it  should  be  payable 
when  the    road  was  completed    "  on   the 


within  terms."  Held,  that  this  did  not  mean 
that  the  whole  road  must  be  completed  be- 
fore the  subscription  was  payable,  but  only 
the  portion  between  the  designated  places. 
Lesher  v.  Karshner,  47  Ohio  St.  302,  24  N, 
E.  Rep.  882. 

A  subscription  for  stock  prorided  that 
the  money  should  be  expended  in  the  con- 
struction of  the  road  between  designated 
places,  and  that  the  subscription  should  not 
be  binding  until  the  whole  road  between  the 
places  should  be  under  contract.  Held,  that 
this  was  not  merely  a  general  description  of 
the  road,  requiring  the  whole  of  it  to  be  put 
under  contract  before  the  subscription  was 
payable,  but  that  it  created  an  express  con- 
dition to  the  validity  of  the  subscription, 
that  the  road  should  be  put  under  contract 
as  designated.  Connecticut  &*  P.  R.  R.  Co.  v. 
Baxter,  32  Vt.  805. 

Such  subscription  provided  that  the  money 
should  be  expended  in  constructing  the  road 
from  S.  to  "Derby  Line."  Held,  that  the 
term  "  Derby  Line,"  in  the  absence  of  any 
evidence  as  to  its  meaning,  except  the  sub- 
scription itself,  and  the  fact  that  the  charter 
fixed  the  northern  terminus  of  the  road  in 
the  north  line  of  Derby,  must  be  construed 
to  mean  the  north  line  of  the  town  of  Derby ; 
but  defendant  having  shown  that  the  words 
"  Derby  Line  "  in  common  usiige  meant  a 
village  of  that  name  in  Derby,  it  became  a 
question  of  fact  for  the  jury  whether  the 
expression  meant  the  north  line  of  Derby, 
or  the  village  named  Derby  Line.  Connecti- 
cut &>  P.  R.  R.  Co.  V.  Baxter,  32  Vt.  805. 

211.  Necessity  of  pcrf'oriiiaiice. — 
A  subscription  was  made  to  stock,  one  part 
of  which  was  payable  when  the  road  should 
be  graded  through  certain  precincts  named, 
and  the  remainder  when  the  road  was  fin- 
ished, but  it  was  expressly  declared  that 
the  consideration  for  the  subscription  was 
the  construction  of  the  road  through  the 
precincts.  Held,  that  the  subscribers  were 
not  liable  for  the  first  instalment  without 
an  allegation  in  the  complaint  that  the  com- 
pany had  finished,  or  offered  to  finish,  the 
road.  Gray  v.  Hinton,  2  McCrary  (U.  S.) 
it7,T  Fed.  Rep.  81. 

But  independently  of  other  considerations, 
such  contract  shows  no  mutuality.  There 
is  nothing  to  bind  the  company  to  com- 
plete the  railroad  ;  and  the  objection  of 
the  want  of  mutuality  can  only  be  avoided 
by  a  complete  performance  of  the  contract. 
A  part  performance  does   not   have  that 


SUBSCRIPTIONS  TO  STOCK,  212,  218. 


W» 


effect.  Gray  v.  Hinton,  a  McCrary{U.  S.) 
167,  7  Fed.  Rtp.  81. 

A  subscription  to  be  paid  on  demand 
made  at  any  time  after  the  company's  road 
should  be  graded  to  a  point  within  five 
miles  of  a  village  named,  the  subscription 
to  be  in  force  only  until  a  certain  date,  is 
invalid  after  that  date,  without  performance 
of  the  condition,  and  cannot  be  enforced. 
CaUna  &*  S.  W.  K.  Co.  v.  Ennor,  116  ///. 
55,  4  N.  E.  Rep.  762. 

Where  the  construction  of  a  railroad  with- 
in a  certain  time  is  the  essential  inducement 
upon  which  an  individual  donates  land  to  a 
company  or  subscribes  to  its  stock,  an  ex- 
tension of  the  time  by  the  legislature  will 
not  discharge  the  corporation  from  its  obli- 
gation. Henderson  v.  San  Antont'o  &*  M, 
G.  R.  Co..  17  Tex.  560. 

212.  Sufficiency  of  performance.— 
If  a  subscription  is  subject  to  a  condition 
that  a  railroad  shall  be  completed  and  in 
operation  between  certain  points  by  a  day 
named,  it  will  be  sufficient  to  show  per- 
formance of  those  conditions,  and  it  is  not 
necessary  that  the  road  should,  on  that  day, 
furnish  such  facilities  for  receiving  and  dis- 
charging freight  and  passengers  as  could  be 
expected  of  an  '>stablished  railroad,  to  make 
the  party  liable  on  his  subscription.  Proof 
that  a  depot  was  not  built,  nor  was  a  station 
agent  appointed  for  such  place  by  the  day 
named,  will  not  necessarily  defeat  a  recov- 
ery on  the  subscription.    Ogden  v.   Kirby, 

79  "i-  555- 

A  right  of  action  on  a  contract  of  sub- 

■cription  promising  to  pay  a  certain  sum 
"  as  soon  as  the  cars  shall  run  to  B.  upon 
a  completed  railroad  from  W.,"  will  not  be 
defeated  by  the  fact  that  thecompany  build- 
ing the  road  does  not  own  the  tolling  stock 
by  which  it  is  operated.  Courtright  v. 
Deeds,  37  Iowa  503.— Approved  in  Mis- 
souri Pac.  R.  Co.  V.  Tygard,  84  Mo.  263,  54 
Am.  Rep.  97. 

A  note  given  for  the  purpose  of  aiding  in 
the  construction  of  a  railroad  and  in  consid- 
eration of  the  benefits  to  be  derived  there- 
from, and  payable  when  the  road  is  con- 
structed and  the  cars  are  running  thereon 
between  designated  points,  is  payable  when 
that  condition  is  performed,  although  the 
remainder  of  the  road  is  not  built  when 
suit  is  brought.  Gardner  v.  Walsh,  95 
Mich.  505,  55  N.  W.  Rep.  355.— Following 
Stowell  V.  Stowell,  45  Mich.  364:  Toledo  & 
A.  A.  R.  Co.  V.  Johnson,  55  Mich.  456. 


A  subscription  to  stock  provided  that  tlie 
company's  road  should  be  completed  and 
put  into  operation  to  a  specified  town  on  or 
before  a  certain  date.  It  appeared  that  the 
road  was  graded  to  said  town  by  said  time, 
but  was  only  completed  to  a  connection  with 
another  road  one  mile  south  of  the  town, 
over  which  other  road  plaintiff's  road  was 
put  into  operation  for  four  months  from  the 
date  named,  after  which  time  plaintiff  used 
its  own  roadway,  which,  in  the  meantime, 
had  been  fully  constructed  and  prepared  for 
operation  and  use.  Held,  that  there  was  a 
fair  and  substantial  compliance  by  plaintiff 
with  its  contract,  which  is  all  that  was  re- 
quired. Missouri  Pac.  R.  Co.  v.  Tygard,  22 
Am.  &•  Eng.  R.  Cas.  54,  84  Mo.  263,  54  Am. 
Rep.  97.— Approving  Courtright  v.  Deeds, 
37  Iowa  503;  State  ex  rel.  v.  Hastings,  24 
Minn.  78;  Stockton  &  V.  R.  Co.  v.  Stock- 
ton, 51  Cal.  334 ;  Jackson  v.  Stockbridge,  29 
Tex.  394.  Reviewing  State  ex  rel.  v. 
Clark,  23  Minn.  422. 

Where  stock  is  subscribed  for  with  a 
proviso  that  the  "  road  shall  be  built "  in  a 
specified  locality,  the  permanent  location 
of  the  road  in  the  place  designated  is  a  suf- 
ficient compliance  with  the  condition  tu 
make  the  subscriber  liable  for  calls  on  his 
subscription.  Warner  v.  Callender,  loOhio 
St.  190. 

Railroad  companies  incorporated  under 
the  laws  of  Ohio  are  not  required  to  con* 
struct  first-class  railroads  before  they  can 
collect  subscriptions  to  their  capital  stock, 
unless  the  subscription  contains  a  stipula- 
tion to  that  effect.  Armstrong  v.  Katsh- 
ner,  44  Am.  &*  Eng.  R.  Cas.  238,  47  Ohio 
St.  276,  24  N.  E.  Rep.  89?. 

When  a  note  contains  a  condition  that  a 
railroad  must  be  completed  to  a  certain 
point  within  a  given  time,  the  condition 
must  be  substantially  complied  with;  and 
where  the  issue  as  to  whether  the  road  was 
completed  or  not  was  fairly  put  to  the  jury, 
and  they  found  that  it  was,  and  there  was 
evidence  to  sustain  the  verdict,  it  will  not 
be  disturbed,  although  it  was  proved  that 
the  road  was  not  incomplete  running  order 
for  passengers  and  freight.  Jackson  v. 
Stockbridge,  29  Tex.  394.— Approved  in 
Missouri  Pac.  R.  Co.  v.  Tygard,  84  Mo.  263, 
54  Am.  Rep.  97. 

213.  Conditions  precedent.— A 
subscription  to  stock  contained  the  condi- 
tion that  a  certain  town  be  made  a  point  on 
the  road,  that  the  road  be  put  under  con- 


M 


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SUBSCRIPTIONS  TO  STOCK,  914-817. 


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im 


it  m 


tract  in  on*  yttr  from  a  certain  date,  and 
that  the  stock  waa  not  to  be  called  for  fatter 
than  five  per  cent,  a  month,  and  no  call  to 
be  made  until  a  certain  part  of  the  road  had 
been  put  under  contract.  HM;  (i)  that 
putting  the  road  under  contract  within  the 
time  and  with  the  conditions  specified  was  a 
condition  precedent  to  the  right  of  the  com- 
pany to  recover ;  (2)  that  a  completion  of  the 
road  by  the  time  named  without  the  letting 
of  the  contract  was  not  a  compliance  with 
the  condition.  BurlitigtoH  &*  Af.  R.  R.  Co, 
V.  Boestler,  1  $  Iowa  $55.— DISTINGUISHED  IN 
Davis  V.  Cobban,  39  Iowa  392. 

A  subscription  to  stock  contained  a  stipu- 
lation that  the  money  should  be  paid  "  in 
instalments  of  five  per  cent,  so  long  as  the 
work  should  be  in  actual  progress,"  but  if 
the  company  named  sliould  fail  to  construct 
the  road,  then  the  amount  subscribed  should 
be  paid  on  the  same  terms  and  conditions 
to  any  other  company  which  would  grade 
and  tie  a  road  between  the  points  desig- 
nated. Held,  that  the  grading  and  tieing 
were  not  conditions  precedent  to  the  pay- 
ment of  the  subscription,  Iowa  Northirn 
C.  R.  Co.  V.  Bliobtntt,  41  Iowa  267. 

A  note  given  to  aid  in  the  construction 
of  a  railroad  provided  that  the  note  should 
become  due  if  the  road  was  constructed  and 
the  cars  were  running  from  the  starting  point 
to  an  intermediate  point  within  two  years. 
Held,  that  it  was  not  a  condition  precedent 
to  liability  on  the  note  that  the  road  should 
be  constructed  to  the  charter  terminus. 
Merrill  v.  Reaver,  50  Iowa  404. 

214.  Revocation  of  offer.— An  offer 
in  writing  to  subscribe  to  stock,  conditioned 
upon  the  construction  of  the  road  along  a 
designated  route,  is  revocable,  at  the  option 
of  tiie  party  making  such  offer,  at  any  time 
before  its  delfvery  to  and  acceptance  by  the 
company ;  and  the  death  of  tlie  party  before 
such  delivery  and  acceptance  works  such 
revocation.  Wallace  v.  Townsend,  25  Am. 
&*  Eng.  R.  Cas.  20,  43  Ohio  St.  537,  3  N.  E. 
Rep.  601. 

215.  Waiver.*— Defendant  subscribed 
for  stock,  payable  on  certain  conditions,  one 
of  which  was  that  the  road  should  be  built 
to  F.  prior  to  a  certain  date.  Subsequently 
he  gave  notes  for  the  amount,  payable  on 
the  happening  of  the  conditions,  except 
the  one  above  specified.  Held,  that  the 
omitted    condition    was   thereby    waived. 

*  See  also  «»//.  134,  174-177. 


Slipker  v.  Earhart,  83  Ind.  173.— QUOTIWO 
Taylor  V.  Fletcher,  is  Ind.  80. 

$.  Stations  and  Depots  to  be  Constructed.* 

210.  Validity.— A  subscription  to  rail- 
road  stock  is  not  invalid  because  made 
payable  upon  condition  that  a  depot  be 
located  in  a  particular  part  of  a  town. 
Racine  County  Bank  v.  Ayres,  12  IVis.  512. 
— Approved  in  Pacific  R.  Co.  v.  Seely,  45 

Mo.  212. 

217.  How  construed.  — A  contract 
between  a  corporation  and  individuals  that 
the  former  will  construct  a  depot  at  a  cer- 
tain place,  and  that  upon  its  construction 
the  individuals  will  pay  to  the  corporation 
a  certain  sum  of  money,  is  negotiable  by 
indorsement  so  as  to  vest  the  title  thereof 
in  each  successive  indorsee.  Vannoy  v. 
DuprtB,  72  Ind.  26. 

Where  such  a  contract  has  been  assigned 
by  the  receiver  yA  the  road,  and  a  suit  is 
brought  thereon  by  an  assignee,  the  au- 
thority of  the  receiver  to  make  such  assign- 
ment is  involved  in  the  question  of  the 
execution  of  the  assignment,  and  can  be 
put  in  issue  only  by  a  denial  under  oath. 
Vannoy  v.  Dupret,  72  Ind.  26. 

Before  suit  could  be  brought  to  enforce 
payment  under  the  contract,  defendants 
were  entitled  to  notice  of  the  completion  of 
the  depot.     Vannoy  v.  Duprez,  72  Ind.  26. 

Defendant  subscribed  for  stock  on  condi- 
tion that  a  depot  be  located  within  three 
fourths  of  a  mile  of  the  corporate  limits  of 
a  town.  Held,  that  in  determining  the  dis- 
tance the  measurement  should  be  in  a 
straight  line  between  the  corporate  limits 
and  the  depot.  Courtwright  v.  Strickler,  37 
Iowa  382.— Following  Cedar  Falls  &  M. 
R.  Co.  V.  Rich,  33  Iowa  113. — Missouri  Pac. 
R.  Co.  V.  Tygard,  22  Am.  &»  Eng.  R.  Cas. 
54,  84  Mo.  263,  54  Am.  Rep.  97. 

Under  a  contract  of  subscription  of  the 
character  above  mentioned,  the  jury  was 
properly  instructed  that  the  point  from 
which  measurement  is  to  be  made,  in  order 
to  determine  whether  the  depot  is  built 
within  the  distance  prescribed,  must  be  the 
corporate  limits  of  tlie  town,  without  regard 

*  Agreements  to  locate  station,  see  note,  38 
Am.  tt  Eng.  R.  Cas.  714. 

Action  on  subscriptions  for  stock  accompanied 
by  a  written  agreement  by  company  to  construct 
and  maintain  railroad  and  depot  at  a  designated 
place,  see  53  Am.  &  Eno.  R.  Cas.  34,  abstr. 


SUBSCRIPTIONS  TO  STOCK,  SIS,  219. 


611 


to  buildings  or  improvementc.  Courtwr^kt 
V.  StrickUr,  37  lawa  383. 

Certain  persons  entered  into  an  agree- 
ment in  ttie  following  form :  "  We,  the  sub- 
scribers, bind  and  obligate  ourselves  to 
subscribe  to  the  capital  stock  of  the  North 
Missouri  railroad  company  the  sums  set 
opposite  our  names,  one  half  the  amount  to 
be  paid  in  six  months,  and  one  half  in 
twelve  months  from  this  date,  on  condition 
tliat  a  depot  is  located  on  the  lands  of  John 
F.  Diggs,  which  adjoin  High  Hill.  This 
subscription  is  made  to  comply  with  the 
terms  on  which  the  directors  of  said  com- 
pany  have  made  the  location  of  a  depot  on 
said  Diggs's  land."  Held,  that  this  was  a 
subscription  in  praunti,  and  not  a  mere 
agreement  to  subscribe  in  future,  and  that 
the  subscription  became  absolute  upon  the 
location  of  the  depot  at  the  designated 
place.  North  Mo.  R,  Co.  v.  Milhr,  31  Mo.  19. 

A  company  being  about  to  construct  its 
road  through  a  town,  the  citizens,  includ* 
ing  plaintiff,  agreed  to  subscribe  $150,000 
(of  which  plaintiff  agreed  to  pay  $500),  and 
also  to  furnish  suitable  depot  grounds.  The 
company  undertook  to  complete  its  road  in 
one  year.  Subsequently  the  citizens  pro- 
vided depot  grounds  which  proved  unsuit- 
able, and  it  was  thereupon  agreed  that  they 
should  buy  other  grounds,  and  that  the 
amount  paid  therefor  by  each  citizen  should 
be  credited  on  his  subscription  to  the  com- 
pany in  full  satisfaction  pro  tanto  of  such 
subscription.  Plaintiff  paid  his  whole  $500 
to  buy  depot  grounds,  the  title  to  which 
afterwards  became  vested  in  the  company. 
Subsequently,  the  company  having  failed  to 
complete  its  road  within  the  time  stipulated, 
plaintiff  brought  suit  against  it  to  recover 
his  $500.  Held:  (i)  that  there  was  no  new 
contract  substituted  for  the  old  one,  and 
that  the  company  was  not  released  from  its 
obligation  to  complete  the  road  in  the  time 
specified ;  (2)  that  plaintiff  was  entitled  to 
recover.  Texas  &»  P.  Ji.  Co.  v.  Fi'Uk.  1 2  Am. 
&*  Eng.  R.  Cas.  312,  2  Tex.  Unrep.  Cas.  257. 

218.  Sufficiency  of  performance. 
~A  subscription  list,  signed  to  aid  in  the 
construction  of  a  railroad,  provided  that  a 
certain  payment  should  be  made  when  the 
road  intersected  with  another  "  at  Wheat- 
land "  and  "  has  been  permanently  located 
to  and  within  the  limits  of  the  town  of 
Wheatland,  with  a  station  at  the  same." 
Held,  that  a  construction  of  the  road 
through  the  town  and  of  the  depot  just  out- 


side of  its  limiu  was  not  a  compliance  with 
the  terms  of  the  contract.  Davenport  6* 
St.  P.  R.  Co.  V.  O'Connor,  40  Iowa  477. 

The  fact  that  the  committee  to  whom 
the  subscription  list  had  been  intrusted,  with 
directions  to  turn  it  over  to  the  company 
whenever  they  became  satisfied  that  the 
latter  had  complied  with  its  conditions,  did 
in  fact  deliver  it  in  the  exercise  of  their 
discretion  does  not  render  the  contract 
binding  upon  subscribers.  Davenport  S* 
St.  P.  R.  Co.  v.  O'Connor,  40  Iowa  477. 

An  agreement  between  plaintiff  company 
and  the  citizens  of  a  city  stipulated  that 
certain  subscription  notes  should  remain  in 
the  hands  of  W.  until  a  certain  designated 
right  of  way  had  been  secured,  when  the 
notes  should  be  "  turned  over  "  to  plaintiff, 
who  thereupon  should  enter  into  an  ab- 
solute contract  for  the  construciion  of  an 
extension  of  its  line,  upon  certain  specified 
conditions ;  and  tliat  it  would  not  locate  a 
depot  on  such  extension  within  seven  miles 
of  the  city.  Held:  (i)  that  W.  was  author- 
ized, without  further  direction  from  the 
parties,  to  deliver  the  notes  to  plaintiff ;  (2) 
that  a  failure  to  incorporate  in  the  last  con- 
tract the  condition  respecting  the  location 
of  the  depot  would  not  constitute  a  defense 
to  an  action  upon  one  of  the  subscription 
notes,  when  in  fact  the  condition  had  been 
complied  with  by  plaintiff.  Burlington,  C. 
R.  &*  M.  R.  Co.  V.  Palmer,  42  /oTva  222. 

210.  Conditions  precedent.  —  A 
subscription  was  made  for  shares  of  rail- 
road stock,  payable  at  such  times  and  in 
such  instalments  as  the  directors  mi^ht 
prescribe,  provided  that  the  road  be  "  per- 
manently located "  on  a  specified  route, 
and  that  "a  freight  house  and  depot  be 
built"  at  a  point  named.  Held,  that  the 
subscription  became  absolute  upon  the  per- 
manent location  of  the  road  in  accordance 
with  the  terms  of  the  agreement.  The  pro- 
vision in  relation  to  the  erection  of  the 
buildings  being  a  stipulation  merely,  its 
performance  was  not  a  condition  precedent 
to  the  right  to  collect  the  subscription. 
Chamberlain  v.  Painesville  &*  H.  R.  Co.,  15 
Ohio  St.  225.— Approved  in  Swartwoutv. 
Michigan  Air  Line  R.  Co.,  24  Mich.  389. 
Distinguished  in  Memphis,  K.  &  C.  R. 
Co.  V.  Thompson,  i  Am.  &  Eng.  R.  Cas. 
331, 24  Kan.  170.  Followed  in  Ashtabula 
&  N.  L.  R.  Co.  V.  Smith,  15  Ohio  St.  328. 

A  subscription  to  stock  was  payable,  one 
fourth  when  the  road  was  finished  to  a 


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SUBSCRIPTIONS  TO  STOCK,  220,221. 


certain  county  line,  and  the  remuinder  in 
four  equal  instalments  of  four  months  as 
the  work  progressed  through  the  county, 
with  a  proviso  that  u  depot  should  be  lo- 
cated ut  a  specified  point  in  the  county. 
Tlie  road  was  completed  to  the  county  line, 
and  while  it  progressed  through  the  county 
all  the  instalments  except  the  last  fell  due, 
and  all  but  two  were  paid.  The  company 
then  became  insolvent  and  abandoned  the 
work  before  it  was  completed  and  before 
the  last  instalment  was  due,  and  the  depot 
was  not  erected.  Assignees  of  the  subscrip- 
tion sued,  and  a  defense  of  the  failure  of 
the  company  to  perform  the  conditions  im- 
posed was  interposed.  //e/J:  (i)  that  the 
completion  of  the  road  to  the  county  line 
was  a  condition  precedent  to  the  payment 
of  the  first  or  any  subsequent  instalment; 
(2)  tiiat  it  was  a  condition  precedent  to  the 
payment  of  any  instalment  after  the  first 
that  the  work  on  the  road  should  be  pro- 
gressing within  the  county  at  the  time  it 
fell  due.  Consequently  the  last  instalment 
wus  not  recoverable.  Paducah  &-  M.  R.  Co, 
V.  Parks,  86  Tenn.  554,  8  S.  IV.  A'tp.  842. 

In  such  case  the  stipulation  as  to  the 
erection  of  a  depot  was  not  a  condition,  but 
an  independent  covenant,  a  breach  of  which 
would  not  defeat  a  recovery  of  the  instal- 
ments, but  was  ground  for  compensation  in 
damages.  Paducah  &»  M.  R.  Co.  v.  Parks, 
86  Tenn.  554,  8  S.  W.  Rep.  842. 

6.  Particular  Route  to  be  Followed 
or  Place  Reached.* 

220.  Validity.— Public  policy  does  not 
prohibit  voluntary  contributions  to  railroads 
for  purposes  of  construction,  or  render  void 
a  contract  based  upon  the  consideration  that 
the  road  shall  be  located  in  or  through  a 
certain  locality,  unless  the  public  interest  is 
to  be  sacrificed  by  it.  Berryman  v.  Cincin- 
nati Southern  R.  Co.,  14  Bush  (Ky.)  755. — 
Reviewing  Cumberland  Valley  R.  Co.  v. 
Baab,  9  Watts  (Pa.)  458. —Approved  in 
Missouri  Pac.  R.  Co.  v.  Tygard,  84  Mo.  263, 
54  Am.  Rep.  97. 

But  where  officers  of  such  corporation  un- 
dertake to  receive  donations  for  their  own 
private  use,  or  make  contracts  by  which  they 
are  to  be  paid  for  using  an  influence  that 
will  or  may  locate  a  line  of  railroad  in  a 
particular  locality,  such  contracts  will  be 

'Subscription  conditioned  on  location,  see 
notes,  16  Am.  &  Eng.  R.  Cas.  439  ;9  Id.  606. 


held  void  as  against  public  policy.  Biny» 
man  v.  Cincinnati  Southern  R,  Co.,  x^Bush 
(Ky.)  755.— Reviewing  Fuller  v.  Dame,  18 
Pick.  (Mass.)  472;  Holladay  v.  Patterson. 
5  Oreg.  177  ;  Pacific  R.  Co.  v.  Seely,  45 
Mo.  212. 

All  contracts  for  stock  made  subsequent 
to  the  formation  of  the  company,  in  con- 
sideration of  a  particular  location,  when 
complied  with  by  the  company,  will  be  as 
binding  on  both  parties  as  if  the  contract 
had  been  absolute  and  unconditional.  Tag' 
gart  V.  Western  Md.  Jf.  Co.,  24  Afd.  563. 

If  it  be  conceded  that  there  was  a  suf- 
ficient consideration  to  support  a  subscrip- 
tion conditioned  that  the  road  be  located 
in  a  particular  manner,  it  was  still  invalid 
as  against  public  policy.  It  was  the  duty  of 
the  company  to  locate  its  road  on  a  route 
most  advantageous  to  the  public.  Dix  v. 
Shaver,  14  Hun  (N.  V.)  392. 

An  agreement  "to  take  f  1000  in  stock  " 
in  a  railroad  "  if  it  comes  near  enough  to 
the  town  of  Weston  to  suit  the  convenience 
of  said  town"  is  binding,  and  upon  the  con- 
dition being  performed  the  subscription  be- 
comes absolute.  Mansfield,  C.  6-  L.  At.  R. 
Co.  v.  Brown,  26  Ohio  St.  223,  13  Am.  Ry. 
Rep.  341.— Followed  in  Mansfield.  C.  & 
L.  M.  R.  Co.  V.  Stout.  26  Ohio  St.  241. 

Defendant  signed  a  subscription  paper 
binding  himself  to  pay  to  acorn pany  a  certain 
amount  of  money  if  its  road  should  be 
constructed  to  a  certain  station  within  ''x 
months.  The  company  proposed  to  e" '• 
its  road  to  the  station  named  for  a  be 
$25,000,  but  unly  (23,000  was  raised,  .  ch 
was  rejected  by  tlie  company.  Thereiij*on 
de.'ondant  gave  notice  tiiat  he  withdrew  his 
subscri|>ti(>n,  but  afterwards  the  company 
agreed  to  construct  the  road  for  the  $23,000. 
Held,  that  defendant  was  bound  by  liis  sub- 
scription. Buchill  V.  Lott,  4  Tex.  App.  {Civ. 
Cas.)  70,  155.  IV.  Rep.  413. 

221.  How  construed.— A  clause  in  a 
subscriber's  note  that  "  the  line  of  said  rail- 
road shall  be  located  and  shall  run  from  the 
court  house  in  McDonough  a  distance  not 
greater  than  the  distance  from  said  court 
house  to  the  present  site  of  the  East  Tennes- 
see, Virginia  &  Georgia  railroad  depot " 
is  ambiguous,  and  is  for  submission  to  the 
jury,  to  say  whether  the  understanding  of 
the  parties  was  that  the  distance  should  be 
taken  literally  as  expressed,  or  only  sub- 
stantially with  reference  to  the  convenience 
of  the  citizens  and  the  public.     Weems  v. 


SUBSCRIPTIONS  TO   STOCK,  223. 


8iii 


Georgia  Midland  &*  G.  R.  Co.,  84  Ga.  3S6, 
11  S.  E.  lUp.  503. 

Defendant  signed  a  writing  agreeing  to 
pay  money  to  u  company  when  a  railroad 
should  be  built  by  it  and  cars  should  be  run 
between  designated  places  in  certain  coun- 
ties; and  that  if  the  company  should  not 
construct  the  road  between  the  places  to 
within  one  fourth  of  a  mile  of  one  of  the 
places  and  also  to  another  city  in  another 
county  within  one  year,  the  obligation 
should  be  void.  Httd,  that  there  could  be 
no  recovery  unless  the  road  was  con- 
structed to  both  places  within  the  time. 
Moort  V.  Campbtll,  111  Ind,  328,  9  West. 
Jitp.  827,  \2  N.E.  Rep.  495. 

Defendant  and  others  signed  a  paper 
which  recited  the  building  of  a  proposed 
railroad  between  designated  places  in  con- 
sideralion  of  a  right  of  way  being  secured 
and  a  local  subscription  of  $3000  a  mile, 
und  (.acL  "Agreed  to  give  a  note  to  the  com- 
pany for  the  amount  set  opposite  his 
name.  The  company  was  not  then  organ- 
ized nor  the  line  of  the  road  fixed.  Held, 
that  proof  of  the  circumstances  attending 
the  agreement  might  be  given,  and  that  the 
company  might  show  that  owing  to  high- 
lands near  a  city  it  had  been  contemplated 
by  the  parties  that  the  road  should  not  be 
built  to  its  corporate  limits,  but  that  the 
line  of  a  previously  constructed  road  was  to 
be  used  for  some  distance ;  and  the  nature 
of  the  ground  might  be  shown  as  a  reason 
why  a  particular  route  could  not  be  chosen. 
Detroit,  L.  &*  L.  M.  R.  Co.  v.  Starnes,  38 
Mich.  698.— Following  Phelps  v.  Whit- 
aker,  37  Mich.  77 ;  Detroit  v.  Robinson,  38 
Mich.  108. 

A  subscription  to  stock  provided  that  it 
should  be  void  "  unless  said  company  locate 
.is  road  "  on  a  certain  route.  A  second  sub- 
scription was  made  on  condition  that  "  said 
road  shall  be  located  "  on  said  route.  Sub- 
sequently the  directors  voted  that  th^  road 
"  be  and  the  same  is  hereby  located  "  on 
said  route,  but  the  road  was  constructed  on 
another  route  which  was  not  nearly  so 
favorable  to  the  subscriber.  Held:  (i)  that 
the  word  "  locate  "  meant  to  construct  the 
road,  and  that  the  subscription  was  avoided 
by  the  abandonment  of  the  first  route ;  (2) 
the  conditional  subscriber  having  never 
been  a  stockholder  and  member  of  the 
company,  or  having  ceased  to  be  so  on  the 
violation  of  the  condition,  the  payments 
made  by  him  before  the  change  of  location 


could  be  recovered  back.  Nashville  &*  N. 
W.  R.  Co.  \.  Jones,  2  Co/dw.  (Tinn.)  574.— 
DiSTINGUISHKU  IN  Piidiicuh  &  M.  R.  Co. 
V.  Parks.  86  Tenn.  554.  8  S.  W.  Rep.  842. 

222.  811VI1  HuhNvriptioii  iiiudu  bo- 
t'oro  orKuiiizutioii  4li>viiie<l  nil  nbMO- 
Into  ouc— Where  a  person  makes  a  con- 
tract in  writing  to  take  stock  in  a  com- 
pany, under  the  authority  of  commission- 
ers, it  is  not  competent  for  him  to  prove 
by  parol  that  lie  made  such  subscription  on 
a  condition  as  to  the  location  of  the  road 
which  had  not  been  complied  with.  North 
Carolina  R.  Co.  v.  Leach,  4  Jones  (N.  Car.) 
340.— Distinguishing  Twidy  v.  Saunder- 
son,  9  Ired.  (N.  Car,)  5 ;  Manning  v.  Jones 
Busb.  (N.  Car.)  368;  Diiuglitry  v.  Boothe, 
4  Jones  87.— Referred  to  in  McRae  v, 
Atlantic  &  N.  C.  R.  Co.,  5  Jones  Eq.  395. 

A  commissioner  appointed  to  receive 
subscriptions  to  stock  subscribed  for  shares 
in  his  own  name,  and  united  with  the  other 
commissioners  in  a  certificate  to  the  gov- 
ernor, on  which  letters  patent  were  issued, 
that  the  subscriptions  "  were  in  all  respects 
made  and  taken  in  good  faith,  and  agree- 
ably to  the  provisions  and  requirements  <>. 
the  acts  of  assembly  and  the  laws  of  the 
commonwealth."  Held,  that  he  was  es- 
topped, in  an  action  to  recover  such  sub- 
scription, from  showing  that  it  was  made 
on  a  condition  that  liad  not  been  complied 
with  in  locating  the  road.  Bavington  v. 
Pittsburgh  6-  S.  R.  Co.,  34  Pa.  St.  358.— 
Distinguished  in  Hanover  Junction  &  S. 
R.  Co.  V.  Grubb,  82  Pa.  St.  36. 

Such  conditional  subscription  is  to  be 
deemed  an  absolute  one,  in  an  action  to 
recover  the  same;  for  the  condition  is  a 
fraud  upon  the  commonwealth,  as  well  as 
upon  the  unconditional  subscribers.  Bav- 
ington V.  Pittsburgh  &*  S.  R.  Co.,  34  Pa. 
St.  358. 

A  subscription  to  stock,  under  Pa.  Act  of 
February  19,  1849,  made  to  commissioners, 
before  the  organization  of  the  company, 
upon  condition  that  the  road  should  be 
located  on  a  special  route,  is  to  be  deemed 
an  absolute  subscription,  without  reference 
to  the  condition.  Pittsburgh  6-  S.  R.  Co. 
V.  Biggar,  34  Pa.  St.  455.  — Overruling 
McConahy  v.  Center  ft  K.  Turnpike  Road 
Co.,  I  P.  &  W.  (Pa.)  426. 

The  commissioners  have  no  power  to  re- 
ceive any  other  than  unconditional  sub- 
scriptions, but  such  conditional  subscription 
is  not  a  nullity.    It  is  the  condition  that  is 


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SUBSCRIPTIONS  TO  STOCK,  223-22S. 


illegal :  the  subscription  is  single  and  abso- 
lute. Pittsburgh  &*  S.  Jt.  Co.  v.  Biggar,  34 
Pa.  St.  4S5.  Pittsburg  &»  S.  B.  Co.  v.  IVood- 
row,  3  PAi/a.  (Pa.)  271.— Quoting  and 
DISTINGUISHING  Irvin  V.  Susquehanna  &  P. 
Turnpllcc  Co.,  a  P.  A  W.  (Pa.)  466. 

223.  Necessity  of  performance.— 
Where  a  subscription  is  made  upon  a  con- 
dition as  to  route,  the  subscriber  is  not  a 
stoclcholder,  and  consequently  nof  liable 
upon  his  agreement,  until  the  condition  is 
performed;  and  whether  it  has  been  per- 
formed is  a  question  of  fact.  Jewttt  v. 
LawrtHCtburgh  &*  U.  M.  R.  Co.,  10  Ind.  539. 

224.  What  is  a  sufficient  compli- 
ance with  tlie  condition.'*' —  A  sub- 
■cription  to  stock  was  conditioned  that  the 
railroad  should  be  located  on  a  given  line 
which  should  be  evidenced  by  an  order  of  the 
board  of  directors.  There  was  no  evidence 
of  such  order,  but  the  road  had  in  fact  been 
so  built,  and  the  subscriber  knew  it.  Held, 
that  other  evidence  was  admissible  to  show 
the  location,  and  that  the  actual  construc- 
tion of  the  road  was  the  best  evidence  of  a 
compliance  with  the  condition.  Moort  v. 
New  Albany  &*  S.  R.  Co.,  15  Ind.  78. 

Wliere  a  subscription  is  made  to  the  cap- 
ital stock  of  a  railroad  upon  condition  that 
the  final  location  of  the  road  shall  be  upon 
a  certain  route,  the  permanent  location  of 
the  road  is  that  adopted  by  the  directors. 
Smith  V.  Allison,  33  Ind,  366. 

The  contract  sued  on  agreed  to  donate 
and  pay  to  a  company  a  certain  amount 
when  it  should  have  completed  its  railroad 
through  Morgan  county  and  have  the  samn 
ready  for  the  running  of  cars, "  provided, 
always,  that  said  railroad  be  located  and 
made  as  nearly  as  practicable  on  the  grade 
of  the  Indianapolis  branch  of  the  New  Al- 
bany and  Salem  railroad  from  Indianapolis 
to  Gosport,  making  Mooresville,  Brooklyn, 
Center  ton,  and  Paragon  points."  Held, 
that  when  the  company  had  built  its  road 
through  Morgan  county  ready  for  the  run- 
ning of  cars,  and  had  made  the  places 
named  points  on  the  road,  defendant  ws.i 
liable  to  pay  the  amount  agreed  to  be  do- 
nated, and  it  was  not  necessary  that  the  old 
grade  of  the  branch  road  should  have  been 
occupied  further  than  to  make  these  places 
points.    Branham  v.  Record,  4a  Ind.  181. 

*  Subscription  conditioned  on  building  of 
road  between  two  points.  What  is  compliance, 
see  note,  30  Am.  ft  Emo.  R.  Cas.  343. 


A  subscription  to  stock  made  upon  con- 
dition "  that  the  line  of  the  road  shall  be 
located  and  built  within  one  mile  of  the 
post  office,  in  the  village  of  Three  Rivers," 
is  assessable  when  the  road  is  finally  located 
within  one  mile  thereof,  although  not  yet 
constructed.  Swartwout  v.  Michigan  Air 
Line  R.  Co.,  24  Mich.  389,  4  Am.  Ry,  Rep. 
63.— Approving  Chamberlain  v.  Painsville 
&  H.  R.  Co.,  15  Ohio  St.  225. 

Where  the  condition  to  a  subscription  is 
that  the  road  should  "pass  through"  a 
given  locality,  the  permanent  location  of 
the  road,  without  its  construction,  on  the 
route  designated,  is  a  compliance  with  the 
condition.  Ashtabula  &*  N.  L.  R.  Co.  v. 
Smith,  IS  Ohio  St.  328.— Following  Cham- 
berlain V.  Painesville  &  H.  R.  Co.,  15 
Ohio  St.  221.— Mansfield,  C.  &'  L.  M.  R.  Co. 
V.  Stout,  26  Ohio  St.  241,  13  Am.  Ry.  Rep. 
361. — Quoted  in  Armstrong  v.  Karshner, 
47  Ohio  St.  276.— IVoonsocket  Union  R.  Co. 
V.  Sherman,  8  R.  I.  564.  —  Distinguished 
IN  Memphis,  K.  &  C.  R.  Co.  v.  Thompson,  i 
Am.  &  Eng.  R.  Cas.  331,  24  Kan.  170. 

After  a  company  had  been  organized,  a 
question  arose  among  the  stockholders  as 
to  which  of  two  routes  should  be  adopted. 
Defendant,  to  induce  the  company  to  take 
the  route  he  desired,  agreed  to  subscribe  a 
certain  r^ .  "ber  of  shares,  provided  that 
route  wui  taken.  The  company  took  that 
route.  Held,  that  this  fact  alone  fixed  the 
liability  of  defendant  on  his  contract  to  take 
the  shares  subscribed,  whatever  might  have 
been  the  terms  of  the  original  subscriptions. 
Spartanburg  &*  U.  R.  Co.  v.  DtGraffenreid, 
13  Rich.  (So.  Car.)  675.— Reviewing  North 
Eastern  R.  Co.  v.  Rodrigues,  10  Rich.  278. 

225.  What  is  not  a  sufficient  com- 
pliance.— Defendant  agreed  to  pay  a  cer- 
tain sum  to  a  company  on  condition  that  by 
a  certain  time  it  would  build  and  equip  a 
railroad  and  run  a  train  over  it  between 
given  points  "  on  the  east  line  "  of  defendant's 
land.  In  suing  on  the  contract  the  com- 
plaint alleged  the  building  of  the  road  be- 
tween the  points  within  the  time  and  the 
running  of  the  train,  but  recited  that  the 
track  was  constructed  as  near  as  practicable 
on  the  east  line  of  defendant's  land, "and  at 
all  points  within  fifty  feet  of  said  ean  line," 
but  alleged  no  reason  for  not  building  on 
the  line,  and  no  waiver  of  the  condition. 
Held,  that  ths  complaint  was  bad  on  de- 
murrer. Crane  v.  Indiana  N.  ^  S.  R.  Ct., 
S9  Ittd.  165. 


1 


SUBSCRIPTIONS  TO  STOCK,  226,  227. 


815 


In  an  action  upon  a  subscription  in  the 
form  of  a  note,  to  aid  a  railroad,  it  is  com- 
petent for  defendant  to  show,  by  tlie  sub- 
scription papers  and  by  the  declarations  of 
the  agent  who  procured  the  note,  that  the 
railroad  was  to  be  built  between  certain 
points.  The  leasing  of  z  part  of  the  road 
between  two  points  h  not  a  compliance 
with  the  contract  to  construct  a  road  be- 
tween said  points.  Lawren:*  v.  Smith,  9 
Am.  &•  Eng.  R,  Cas.  604,  57  liwa  701,  II 
A^.  IV.  Rep.  674. 

Where  defendant  subscribes  to  stock,  with 
the  agreement  that  the  road  should  be  con« 
structed  within  500  feet  of  his  mill,  and  it.  Is 
afterward  changed  to  about  1200  feet,  in  an 
action  to  recover  his  subscription  it  is  com- 
petent for  him  to  show  that  the  change  was 
a  material  one  as  to  him.  Moore  v.  Man- 
ner Junction  6*  S.  R.  Co.,  4  Am.  &*  Eng:  R. 
Cas.  256,  94  Pa.  St.  324.— Distinguishing 
Miller  v.  Hanover  Junction  &  S.  R.  Co.,  87 
Pa.  St.  95.  Following  Hanover  Junction 
&  S.  R.  Co.  V.  Grubb,  82  Pa.  St.  36 ;  Caley 
V.  Philadelphia  &  C.  County  R.  Co.,  80 
Pa.  St.  363. 

220.  Conditions  precedent.— 
Where  there  is  a  stipulation  in  the  body 
of  the  subscription  for  a  particular  enter- 
prise, as  for  the  building  of  a  road  to  a  par- 
ticular place,  or  for  its  location  on  a  specified 
route,  such  stipulation  forms  a  condition 
precedent,  and  unless  strictly  complied 
with  by  the  corporation  the  party  subscrib- 
ing will  be  absolved  from  his  obligation  to 
pay.  Martin  v.  Pemacola  &*  G,  R,  Co.,  8 
Fla.  370. 

Where  parties  sign  a  subscription  reciting 
that  if  a  certain  railroad  shall  be  perma- 
nently located  and  constructed  through  a 
city  they  will  pay  the  sums  set  opposite 
their  names,  to  be  used  and  applied  in  ac- 
quiring a  right  of  way,  such  contract  will  be 
enforced.  The  completion  of  the  road  is 
not  a  condition  precedent  to  the  payment 
of  the  money.  Berryman  v.  Cincinnati 
Southern  R.  Co.,  14  Bush  {Ky.)  755.— 
Approved  in  Paducah  k  M.  R.  Co.  v. 
Parks,  86  Tenn.  554,  8  S.  W.  Rep.  842. 

Where  a  person  subscribes  to  stock  upon 
condition  that  the  road  shall  "pass"  over 
a  certain  designated  route,  it  is  not  a  con- 
dition precedent  to  the  subscription  that 
the  company  shall  actually  construct  and 
complete  the  road  along  the  line  designat- 
ed ;  it  is  sufficient  if  the  road  be  thus  per- 
manently located.    North  Mo.  R.  Co.  ▼. 


Winkler,  29  Mo.  318.— Reviewing  McMil- 
lan V.  Maysville  &  L.  R.  Co.,  15  B.  Mon. 
(Ky.)  234.— Approved  in  Paducah  &  M.  R. 
Co.  V.  Parks,  86  Tenn.  554,  8  S.  W.  Rep. 
842.  Distinguished  in  Memphis,  K.  &  C. 
R.  Co.  V.  Thompson,  1  Am.  &  Eng.  R.  Cas. 
331,  24  Kan.  170. 

A  subscription  was  made  to  railroad 
stock  on  condition  that  the  company  should 
"locate  and  construct"  the  road  along  a 
certain  route.  The  road  was  located  on  the 
route,  but  the  cc^vany  suspended  before  it 
was  constructed.  In  an  action  to  recover 
several  calls  of  the  subscription— ^//r/,  that 
the  condition  meant  that  the  road  should 
be  located  as  named,  and  constructed  as 
fast  as  the  means  of  the  company  would 
permit,  and,  the  construction  of  the  road 
not  being  a  condition  precedent,  plaintiff 
could  recover.  Miller  v.  Pittsburgh  &*  C. 
R.  Co.,  40  Pa.  St.  237.— Approved  in  Green 
V.  Dyersburg,  2  Flipp.  (U.  S.)  477  ;  Paducah 
&  M.  R.  Co.  V.  Parks.  86  Tenn.  S54.  8  S.  W. 
Rep.  842.  Distinguished  in  Memphis, 
K.  ft  C.  R.  Co.  V.  Thompson,  i  Am.  ft  Eng. 
R.  Cas.  331,  34  Kan.  170;  Pittsburg  ft  C.  R. 
Co.  V.  Allegheny  County,  63  Pa.  St.  126. 

A  subscription  to  stock  was  made  payable 
whenever  the  road  should  be  located  or 
established  to  a  certain  city.  The  company 
bound  itself  to  build  and  equip  the  road 
within  a  twelvemonth.  The  subscriber  de- 
clined to  pay  when  requested,  on  the  ground 
that  it  was  a  physical  impossibility  to  com- 
plete the  road  within  the  contract  time. 
Held,  that  the  completion  of  the  road  was 
not  a  condition  precedent  to  the  right  to 
demand  payment  of  the  subscriptions ;  and 
especially  is  this  so  where  the  road  at  the 
time  of  the  refusal  to  pay  was  in  process  of 
iona  fide  construction,  and  the  failure  to 
complete  it  within  the  time  contracted  is 
accounted  for,  and  the  road  completed  be- 
fore bringing  suit.  Seley  v.  Texas  &*  St.  L. 
R.  Co.,  2  Tex.  App.  (Civ.  Cas.)  66.— Ap- 
proving Miller  V.  Pittsburgh  ft  C.  R.  Co., 
40  Pa.  St.  237 ;  Front  St.,  M.  ft  O.  R.  Co. 
V.  Butler,  50  Cai.  574.  Distinguishing 
Henderson  v.  San  Antonio  ft  M.  G.  R.  Co., 
17  Tex.  560. 

227.  Remedy  of  subscriber  on 
non-perfovmance  by  company.  — 
Plaintiff  subscribed  I500  to  the  stock  of  a 
railroad,  to  be  paid  when  the  road  was  con- 
structed through  his  county,  which  was  to 
be  within  one  year.  Plaintiff  and  other 
persons  who  had  lubscribed  agreed  to  fur- 


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SUBSCRIPTIONS  TO  STOCK,  228-230. 


nish  to  the  company  certain  depot  grounds, 
and  at  the  request  of  the  company  plaintiff's 
subscription  was  paid  in  procuring  such 
grounds,  before  the  road  was  built,  the 
grounds  being  deeded  to  the  company. 
The  company  failed  to  build  the  ruad  with- 
in the  time  agreed  and  plaintiff  sued  to 
recover  back  the  amount  of  his  subscrip- 
tion. It  appeared  that  the  road  was  not  built 
at  the  time  of  the  trial,  some  six  years 
after  the  subscription  was  made.  Held, 
that  plaintiff  had  not  waived  conditions  pre- 
cedent and  was  entitled  to  recover.  Ttxat 
6*  P.  R.  Co.  V.  Fitch,  I2  Am.  *•  Eng.  R. 
Cas.  312,  2  Tex.  Unrep.  Cas.  257. 

228.  Bevocatiou  of  oifer.— Defend- 
ant subscribed  to  the  stock  of  a  railroad  on 
condition  that  the  road  be  located  in  a 
specified  manner,  the  subscription  to  be 
paid  when  the  road  should  be  graded.  Sub> 
sequently  the  road  was  sold  under  a  fore- 
closure sale,  and  the  purchasers  thereafter 
consolidated  with  still  another  company, 
and  the  road  was  located  and  graded  ac- 
cording to  the  original  subscription.  Held, 
that  the  subscription  was  a  mere  offer  on 
the  part  of  defendant,  which  could  be  re- 
tracted at  any  time  before  acceptance ;  and 
as  there  had  been  no  acceptance  by  the 
original  company,  it  was  not  within  the 
power  of  a  subsequent  company  to  accept, 
as  there  was  no  privity  of  contract  between 
it  and  defendant.  Dix  v.  Shaver,  14  Hun 
(N.  Y.)  39». 

220.  Waiver.  —  Defendant  tabscribed 
for  stock  on  condition  that  the  railroad  be 
built  on  a  certain  route,  but  afterwards  gave 
his  note  with  no  mention  of  any  condition. 
Held,  that  the  note  amounted  to  a  new  con- 
tract and  was  a  waiver  of  the  condition. 
Evansville,  I.  &»  C.  S.  L.  R.  Co.  v.  Dunn,  17 
fnd.  603.— Distinguishing  Jewett  v.  Law- 
renceburgh  &  U.  M.  R.  Co.,  10  Ind.  539. — 
Distinguished  in  Parker  v.  Thomas.  19 
Ind.  213.  Followed  in  Evansville,  I.  & 
C.  S.  L.  R.  Co.  V.  Wampler,  19  Ind.  347; 
Parks  V.  Evansville,  I.  &  C.  S.  L.  R.  Co.,  33 
Ind.  567. 

But  the  giving  of  unconditional  notes  for 
such  sub;cnption  does  not  waive  the  pci- 
formance  of  a  condition  precedent  unless 
so  intended  by  the  parties ;  and  the  failure 
of  such  performance  may  be  pleaded  in  bar 
of  a  recovery  on  the  notes.  Parker  v. 
Thomas,  19  Ind.  313.  —  Distinguishing 
Evansville,  I.  &  C.  S.  L.  R.  Co.  v.  Dunn, 
17  Ind.  603. 


▼I.  lUBBOBimOira  BT  OTHIB 
OOMPAHIU. 

230.  Such  subscriptions  gener- 
ally ultra  vires.— A  company  chartered 
for  the  purpose  of  building  and  maintaining 
a  railroad  between  designated  points,  with 
general  power  to  purchase  and  hold  per- 
sonal estate  of  any  character  whatever,  is 
not  authorized  to  become  a  stockholder  in  a 
railroad  running  from  the  starting  point  of 
the  first  road  to  a  different  place.  Such 
purchase  is  wholly  beyond  the  purpose  of  the 
charter.  Central  R.  Co.  v.  Collins,  40  Ga.  $83. 
—Reviewing  East  Anglian  R.  Co.  v.  East- 
ern Counties  R.  Co.,  7  Eng.  L.  &  Eq.  505; 
Wiswallv.  Greenville  &  R.  Plank  Road  Co., 
3  Jones  Eq.  (N.  Car.)  183 ;  Colman  v.  Eastern 
Counties  R.  Co.,  4  Railw.  Cas.  513;  Mayor, 
etc..  of  Macon  v.  Macon  &  W.  R.  Co..  7  Ga. 
231 ;  Munt  V.  Shrewsbury  &  C.  R.  Co.,  3 
Eng.  L.  &  Eq.  149.— Reviewed  in  Mem- 
phis &  C.  R.  Co.  V.  Woods,  44  Am.  &  Eng. 
R.  Cas.  357.  88  Ala.  630.  7  So.  Rep.  108. 

A  railroad  corporation  cannot  become  a 
stockholder  in  another  railroad  corporation 
for  the  purpose  of  controlling  the  business 
of  the  latter,  or  the  election  of  its  officers, 
unless  such  power  is  given  by  statute. 
Pearson  v.  Coneord  R.  Corp.,  liAtn.  &'£n/^. 
R.  Cas.  1 03,  62  N.  H.  537,  13  Am.  St. 
Rep.  590. 

Under  the  general  railroad  law  a  corpo- 
ration cannot,  in  its  own  name,  subscribe 
for  stock  or  be  a  corporator ;  nor  can  it  do  so 
by  a  simulated  compliance  with  the  provi- 
sions of  the  law  through  its  agents  as  pre- 
tended corporators  and  subscribers  of  stock. 
Central  R.  Co.  v.  Pennsylvania  R,  Co.,  31 
A^.  /.  Eq.  475  ;  revet  sed  on  another  point  in 
32  N.J.  Eq.  755.— Followed  in  Valley  R. 
Co.  V.  Lake  Erie  Iron  Co..  46  Ohio  St.  44.  1 
L.  R.  A.  412.  18  N.  E.  Rep.  4S6. 

A  banking  corporation  chartered  under 
the  laws  of  New  York  has  no  power  to  sub- 
scribe for  the  stock  of  a  railroad  corpora- 
tion. Nassau  Bank  v.  Jones,  30  Am.  &* 
Eng.  R.  Cas.  637,  95  N.  V.  115. 

An  incorporated  company  cannot,  unless 
authorized  by  statute,  make  a  valid  sub- 
scription to  the  capital  stock  of  another 
company.  A  subscription  so  made  is  ultra 
vires  and  void.  Falley  R.  Co.  v.  Lahe  Erie 
Iron  Co.,  46  Ohio  St. 44,  t  L.R.  A.  412,  tt  N. 
E.  Rep.  486.— Following  Central  R.Co.  v. 
Pennsylvania  R,  Co.,  31  N.  J.  Eq.  475. 


11 


SUBSCRIPTIONS  TO  STOCK,  231,  232.— SUMMONS. 


817 


231.  What  corporatiouB  have  the 
power.***  —  An  incorporated  literary  insti- 
tution which,  by  its  charter,  has  power  to 
contract,  and  buy  and  sell  real  and  personal 
property  for  the  purpose  of  "  sustaining 
and  carrying  on  said  institution  of  learning, 
and  not  otherwise"  and  which,  under  the 
power  thus  conferred,  owns  and  operates  a 
large  and  valuable  farm,  has,  by  fair  impli- 
cation, the  power  to  do  anything  reasonably 
calculated  to  add  to  the  value  of  its  prop- 
erty, or  to  the  value  of  the  large  industry 
thus  created.  Therefore  a  subscription  by 
the  corporation  to  aid  in  building  a  railroad 
which  is  highly  beneficial  to  the  institution 
jn  various  ways,  and  adds  largely  to  the  value 
of  its  property,  is  not  u/tra  vires.  Louis- 
ville 6-  A':  R.  Co.  V.  St.  Rose  Lite,  ary  Soc., 
9"  Ky.  395.  15  5.  W.  Rep.  1065. 

In  Virginia  a  law  giving  authority  to  a 
bank  to  subscribe  for  railroad  stock  is  con- 
stitutional, and  the  subscription  is  valid. 
Goddin  V.  Crump,  8  Leigh  ( Va.)  120. 

232.  Purchase  by  one  road  of 
stock  subHcriptions  of  another.— One 
railroad  corporation,  merely  from  having 
bought  the  roadbed  of  another,  with  intent 
to  complete  the  road,  has  no  right  to  pur- 
chase the  vendor's  stock  subscriptions  and 
enforce  them  against  the  subscribers.  West- 
End  Narrow  Gauge  K.  Co.  v.  Darner  on,  4  Mo. 
App.  414.— DiSTiNGUisHiN';  Daniels  w.  St. 
Louis.  K.  C.  &  N.  R.  Co.,  6:  Mo.  43.  Re- 
viewing Pacific  R.  Co.  v.  Seely.  45  Mo.  212. 
—Followed  in  Sommer  v.  Pacific  R.  Co., 
4  Mo.  App.  586. 


SUBSTITUTED  SERVICE. 
Of  process,  see  Process,  43. 


SUBSEQUENT  PURCHASERS. 

Right  of,  to  sue  elevated  railway  company, 
bee  Elevated  Raii.wavs,  85-00. 


8UBSIDT  BONDS. 

Application  of  earnings  to  pay  .-sent  of,  see 
Union  Pacific  R.  Co.,  lO. 

Of  Central  Pacific  R.  Co.,  see  Central  Pa- 
cific R.  Co.,  2. 


SUBSTANTIAL  DAXAOES. 
Gtnerally,  see  Damages.  15. 


SUBSTITUTED  ROAD. 
Acceptance  of.  see  Turnpikes.  3. 

•  Power  of  corporation  to  hold  stock  in  an- 
other company,  see  notes.  13  Am.  &  Eno.  R. 
Cas.  119  ;  36  Am.  St.  Rbp.  134. 
7  D.  R.  D.— sa 


SUBSTITUTION. 

Of  new  contract  in  place  of  former  one,  see 
Contracts,  79. 

—  —  party  to  action,  see  Aiiatf.ment,  17. 

—  —  petitioner   in  condemnation  proceed- 

ings, see  Eminent  Domain,  250. 

road  for  highway  used  by  railroad,  see 

Streets  and  Highways,  105-207. 

—  parties,  see  Parties  to  Actions,  15. 
on  appeal,  see  Eminent  Domain,  033. 

—  purchaser  as  a  party  pendente  lite,  see 

Elevated  Railways,  OO. 

—  receiver   as   defendant,    see    Receivers. 

136. 

—  trustees  under  deed  of  trust,  see  Deeds  of 

Trust.  13. 


8UBWAT  COMMISSIONERS. 

Consent  of.  to  placing  poles  and  wires  io 
streets,  see  Electric  Railways.  12. 


SUFnCIENCT. 
Of  evidence,  generally,  see  Evidence.  264- 

200. 
in  actions  for  injuries  to  employes,  see 

Employes,  Injuries  to,  603-622. 
—  fences,  see  Fences,  75-81. 


SUITS. 

By  and  against  corporations,  see  Corpora- 
tions, 17-20. 
Relative  to  liability  for  collision,  see  Colli. 

SIONS.   1. 


SUMMARY  PROGEEDINOS. 
For  the  collection  of  taxes,  see  Taxation, 
325. 


.SUMMONING. 

Jurors,  see  Trial.  27. 
—  under  English  compulsory  purchase  laws, 
see  Eminent  Domain.  1181. 


SUMMONS. 
Form  and  sufficiency  generally,  see  Process. 

10. 
In  condemnation  proceedings,  see  Eminent 

Domain,  301,302. 

—  ejectment  suits,  see  Ejectment.  22. 

—  suits   against  foreign  corporations,  see 

Foreign  Corporations,  25. 
Of  jurors  to  assess  land  damages,  see  Cmi. 
NBNT  Domain,  530-533. 


I 


3 
t 

S3 


-}M 


i 


■-*•■«# 


818 


SUNDAY,  1,2. 


■i;  ii' 


[V 


SirVSAT. 

Limited  ticket  expiring  on,  see  Tickets  and 
Fares,  93. 

Navigation  of  canals  on,  see  Canals.  4. 

Procuring  signatures  to  petition  io  aid  of 
railway  on,  see  Municipal  and  Local 
Aid,  85. 

Traveling  on,  as  a  defense  to  action  for  caus- 
ing death,  see  Death  by  Wrongful  Act, 
161. 

carrier  of  passengers,  see 

Carriage  of  Passengers,  557. 

1.  Validity  of  Sunday  contracts, 
generally.* — Wliere  a  corporation  issues 
bonds  payable  either  in  money  or  in  shares 
of  stock  at  or  before  maturity  at  the  elec- 
tion of  the  holder,  and  the  bonds  on  their 
face  mature  on  Sunday,  they  mature  in  fact 
on  the  Saturday  before,  and  a  holder  cannot 
exercise  his  option  on  the  following  Mon- 
day. Chaffee  v.  Middlesex  R.  Co.,  146  Mass. 
324,  6  N.  Eng.  Rep.  59.  16  N.  E.  R*p.  34. 

A  railroad  aid  subscription  signed  on  Sun- 
day is  prima  facie  void,  and  if  the  com- 
pany has  not  acted  on  it  in  good  faith  and 
without  knowledge  of  the  defect,  it  must  be 
ratiiied  by  delivery  on  a  week-day.  Sagi- 
naw,  T.  6-  H.  R.  Co.  v.  Chappell,  22  Am.  &• 
Eng.  R.  Cas.  16,  56  Mich.  190,  22  N.  W. 
Rep.  278. 

The  fact  that  it  was  signed  and  de- 
livered on  Sunday  renders  void  a  written 
agreement  whereby  the  owners  of  land  con* 
sent  to  the  laying  of  a  railway  track  thereon 
and  release  all  claim  for  damages.  Smith  v. 
Chicago,  M.  &-  St.  P.  R.  Co.,  83  Wis.  271, 
50  N.  fV.  Rep.  497.  53  ^-  "^-  ^^efi.  550. 

8. coutractH  of  curriago.f  —  A 

Virginia  statute  made  it  a  criminal  offense 
*.o  be  found  laboring  on  the  Sabbath  day  at 
tny  trade  or  calling,  except  in  household  or 
other  work  of  necessity  or  charity,  but 
excepted  the  transportation  *ot  mails  and 
passengers  and  their  baggage.  A  railroad 
company  received  goods  from  a  connecting 
carrier  on  Sunday,  which  it  placed  in  a 
warehouse  where  they  were  destroyed  dur- 
ing the  day.  The  connecting  carrier  paid 
for  the  goods  and  sued  the  railroad  com- 
pany, //eid,  that  the  company,  having  re- 
ceived the  goods,  was  bound  to  keep  them 
in  safe  custody  until  they  could  be  trani- 

*  Construction  of  statutes  on  the  observance  of 
the  Sabbath,  see  note.  5  Am.  &  Eng.  R.  Cas.  43. 

t  Effect  of  Sunday  laws  in  the  operations  of 
railroads,  see  notes,  33  Am.  ft  Eno.  R.  Cas. 
434  ;  18  Id  481. 


ported  on  the  following  day.  To  take  care 
of  them  on  the  Sabbath  day  was  a  work  of 
necessity,  and  therefore  not  unlawful.  Pow- 
hatan Steamboat  Co.  v.  Appomattox  R.  Co.,  24 
Hffw.{U.S.)2^7. 

It  is  the  duty  of  the  court  to  notice  the 
days  of  the  week  on  which  particular  dayi 
of  the  month  fall.  So  a  court  knows 
that  the  28th  day  of  July,  1878,  was  Sunday, 
without  an  averment  to  that  effect  in  a  com- 
plaint. So  held,  on  demurrer  to  a  complaint 
against  a  carrier  for  not  forwarding  cattle, 
which  averred  merely  the  day  of  the  month 
and  the  year  without  averring  that  the  day 
was  Sunday.  Philadelphia,  IV.  &*B.  R.  Co. 
V.  Lehman,  6  Am.  S*  Etig.  R.  Cas.  194,  $6 
Md.  209,  40  Am.  Rep.  415. 

A  Maryland  statute  forbids  all  persons  to 
work  or  to  do  any  bodily  labor  on  the 
Lord's  day,  commonly  called  Sunday,  ex- 
cept works  of  necessity  and  charity.  A 
railroad  company  received  stock  as  a  com- 
mon carrier  on  Sunday,  and  was  sued  for 
delay  in  not  shipping  it  until  the  next 
day.  The  action  was  founded  upon  the 
common-law  duty  and  liability  of  the  com- 
pany as  a  common  carrier,  and  not  upon 
any  special  contract.  Held,  that  its  obliga> 
tion  was  to  carry  according  to  its  public 
profession,  and  the  conveniences  at  its  com- 
mand ;  and  if  it  failed  to  do  so  it  was  liable. 
The  Sunday  law  had  no  application.  Phila- 
delphia, W.  &•  B.  R.  Co.  v.  Lehman,  6 
Am.  &*  Ef^g.  R.  Cas.  194,  56  Md,  209,  40 
Am.  Rep.  415. 

Even  upon  the  supposition  that  plain- 
tiffs were  violating  the  law  in  having  their 
cattle  transported  on  a  Sunday,  defendant 
could  not  avail  itself  of  such  infraction  of 
the  law  by  plaintiffs  as  a  defense  to  an  ac- 
tion for  the  consequences  of  a  wrong  or 
negligence  of  its  own.  Philadelphia,  W.  &* 
B.  R.  Co.  v.  Lthman,  6  Am.  &*  Eng.  R.  Cas. 
194,  56  Md.  209,  40  Am.  Rep.  415. 

In  the  regular  division  of  time  Sunday 
embraces  all  the  twenty-four  hours  next  en- 
suing midnight  of  the  Saturday  preceding. 
So  an  averment  that  stock  was  delivered  to 
a  carrier  on  a  certain  day  at  four  o'clock  in 
the  afternoon  is  sufficient,  when  the  day  is 
Sunday,  to  show  that  the  delivery  was  on 
Sunday.  Philadelphia,  W.  &*  B.  R.  Co.  v. 
Lehman,  6  Am.  &•  Eng.  R.  Cas.  194.  56  Md. 
209,  40  Am.  Rep.  4iS> 

It  seems  that  a  carrier  has  a  right  to  con- 
tract for  the  carriage  of  passengers  on  Sun- 
day, and  is  not  required,  before  receiving 


\  •  -'m 


SUNDAY,  3,  4. 


819 


them,  to  ascertain  the  purpowi  for  which 
they  are  traveling ;  and  having  entered  into 
such  a  contract,  without  Icnowledge  that  the 
purpose  of  the  other  party  is  unlawful,  he 
cannot  escape  from  liability  for  a  negligent 
performance  of  the  contract  on  that  ground. 
He  cannot  take  the  benefit  of  the  contract 
and  be  exempted  from  its  responsibilities. 
Carro/l  v.  Staten  Island  /t.  Co.,  58  N.  Y. 
126,  7  Am.  Ey.  R»p.  25,  9  Am.  Ry.  Rtp.  486 ; 
affirming  65  Barb.  32. 

The  police  authorities  of  a  city  have  a 
right  to  prevent  an  express  company  from 
transporting  domestic  freights  on  Sunday, 
but  not  such  as  are  interstate,  as  the  con- 
trol of  interstate  commerce  is  reserved  to 
congress  and  cannot  be  conferred  upon  a 
state  by  an  assertion  of  the  police  power. 
Dinsmor*  v.  New  York  Board  of  Police,  I3 
Aib.  N.  Cas.  (AT.  Y.)  436. 

A  contract  made  on  Sunday  to  secure  de- 
cent burial  for  the  dead  and  to  procure  the 
presence  of  parents  of  the  deceased  is,  in 
contemplation  of  law,  a  contract  to  do  a 
work  of  necessity  and  charity,  and  therefore 
valid.  Gul/,  C.  &•  S.  F.  R.  Co.  v.  Levy,  12 
Am.  S*  Ei^.  R.  Cas.  90.  96,  59  Tex.  542, 46 
•Am.  Rep.  269. 

3.  Lisgal  bnslnesBt— An  injunction 
may  issue  on  Sunday  to  prevent  irreparable 
injury,  where  necessity  demands  it.  This 
rule  applied  to  a  case  where  a  railroad, 
alleged  to  be  insolvent,  was  proceeding  to 
construct  its  track  on  a  street  on  Sunday, 
without  authority,  to  avoid  the  process  of 
court.  Langabier  v.  Fairbury,  P.  6*  N.  W. 
R.  Co.,  64  ///.  243. 

Where  a  town  board  of  supervisors  is 
authorized  by  law  to  issue  bonds  in  aid  of  a 
railroad  only  upon  the  presentation  of  a 
petition  therefor  signed  by  a  certain  num- 
ber of  taxpayers  of  the  town,  the  procuring 
and  affixing  of  such  signatures  on  Sunday 
is  "  business,"  and  is  unlawful,  and  confers 
no  authority  upon  the  supervisors  to  issue 
such  bonds.  De  Forth  v.  Wisconsin  &*  M. 
R.  Co.,  5  Am.  &•  Eng.  R.  Cas.  28,  52  Wis. 
310,  9  N.  W.  Rep.  17,  38  Am.  Rep.  737. 

T''^  fact  that  plaintiff  affixed  his  signa> 
tur  to  ch  petition  on  Sunday  will  not 
prevent  uim  from  obtaining  an  injunction 
against  the  issue  of  the  bonds  by  the  super- 
visors on  the  ground  that  the  required 
number  of  signature!  were  not  affixed  on 
any  secular  day.  Z?rf  Forth  v.  Wisconsin  6-» 
M.  R.  Co.,  S  Am.  &»  Eng.  R.  Cas.  28,  53  Wis. 
320,  9  N.  W.  Rep.  17,  38  Am.  Rep.  737. 


In  such  case  the  complaint  for  an  injunc- 
tion need  not  aver  that  the  persons  who 
signed  the  petition  on  Sunday  were  not  of 
the  class  described  in  Wis.  Rev.  St.  §  4596, 
as  persons  "who  conscientiously  believe 
that  the  seventh  day  or  any  other  day  of 
the  week  ought  to  be  observed  as  the  Sab- 
bath." De  Forth  v.  Wisconsin  6-  M.  R. 
Co.,  5  Am.  6*  Eng.  R.  Cas.  28,  $2  Wis.  320, 
9  N.  W.  Rep.  17,  38  Am.  Rep.  737. 

4.  Traveling  on  Sunday,  genet' 
ally.*— The  fact  that  plaintiff  received 
an  injury  on  Sunday  will  not  prevent  a 
recovery  therefor.  Louisville,  N.  A.  &*  C, 
R.  Co.  v.  Frawlev,  28  Am.  &*  Eng.  R.  Cas, 
308,  no  Ind.  18,  9  jV.  E.  Rep.  594,— FOL- 
LOWED IN  Louisville,  N.  A.  &  C.  R.  Co.  v. 
Buck,  38  Am.  &  Eng.  R.  Cas.  152,  116  Ind. 
566,  19  N.  E.  Rep.  453,  2  L.  R.  A.  520. 

A  railroad  cannot  escape  liability  for 
injury  to  a  person  by  showing  that  he  was 
injured  while  returning  from  nork  on  Sun- 
day, in  violation  of  law.  Illinois  C.  R.  Co. 
V.  Dich,  91  Xy.  434,  1$  S.  W.  Rep.  66 J. 

The  facts  that  the  exercises  of  a  spiritual- 
ist camp  meeting  included  a  show  to  which 
an  admittance  fee  was  charged,  and  that 
'iome  of  the  speakers  declared  that  they 
would  throw  away  the  Bible  in  their  search 
after  truth,  are  not  conclusive  that  a  person 
who  traveled  on  Sunday  to  attend  the  meet- 
ing did  so  unlawfully;  and  the  question 
whether  he  traveled  except  from  necessity 
or  charity  is  for  the  jury.  Feital  v.  Afid- 
dlesex  R.  Co.,  109  Mass.  398,  6  Am.  Ry. 
Rep.  300. 

One  who  travels  on  Sunday  for  the  sole 
purpose  of  visiting  a  friend  whom  he  knows 
to  be  sick,  and  may  be  in  need  of  assistance, 
with  the  intention  of  rendering  such  assist- 
ance as  is  necessary,  is  engaged  in  a  work 
of  charity ;  and  if  he  be  injured  by  a  carrier 
while  so  traveling  he  is  entitled  to  a  sub- 
mission to  the  jury,  though  he  offers  no 
evidence  on  the  ground  of  his  belief  that 
his  friend  was  in  need  of  assistance.  Doyle 
V.  Lynn  &*  B.  R.  Co.,  118  Mass.  19$,  9  Am. 
Ry.  Rep.  277. 

It  is  not  easy  to  define,  as  a  matter  of 
law,  what  state  of  facts  will  make  traveling 
an  act  of  necessity  or  charity,  within  the  ex- 
ception in  the  Massachusetts  Lord's-day  Act, 
or  when  the  plaintiff's  own  illegal  conduct 

*  See  also  Dkath,  etc.,  161. 

Violation  of  Sunday  laws.  Works  of  char- 
ity or  necessity,  sec  note,  6  Am.  ft  Eno.  R. 
Cas.  330 


b 


!^  i^ 


820 


SUNDAY,  5. 


can  be  said  to  be  a  direct,  rather  than  a 
remote,  cause  contributing  to  the  injury 
wherefor  he  sues.  The  first  of  these  ques- 
tions is  to  be  determined,  to  a  great  extent, 
by  considerations  of  moral  fitness  and  pro- 
priety ;  the  last  by  the  evidence  in  each  case 
bearing  upon  the  complicated  relations  of 
cause  and  effect.  Smith  v.  Boston  &*  M.  R. 
Co.,  120  Mass.  490. 

Traveling  on  Sunday  to  make  a  social 
visit  is  not  within  the  statute  which  pro- 
hibits "  any  play,  game,  or  recreation  "  on 
that  day.    Corey  v.  BatA.  35  JV.  H.  530. 

The  mere  fact  that  plaintiff  was  traveling 
on  Sunday  is  not  ground  for  a  nonsuit  in 
an  action  against  one  who  negligently 
injures  him  where  there  is  nothing  to  show 
that  he  was  not  on  an  errand  of  necessity  or 
charity.  Baldwin  v.  Barney,  \%  R.  I,  393. 
— Approvimg  Philadelphia,  W.  &  B.  R.  Co. 
V.  Philadelphia  &  H.  de  G.  Steam  Towboat 
Co.,  23  How.  (U.  S.)  209;  Kerwhacker  v. 
Cleveland.  C.  &  C.  R.  Co.,  3  Ohio  St.  172. 
Disapproving  Smith  v,  Boston  &  M.  R. 
Co.,  1 20  Mass.  490. 

And  a  recovery  in  such  case  could  not  be 
defeated  on  the  ground  that  plaintiff  must 
affirmatively  show  himself  free  from  con- 
tributory negligence,  where  the  Sunday 
traveling  was  not  the  efficient  cause  of  the 
r:/!lision  which  caused  the  injury.  Baldwin 
V.  Barney,  i%R.  I,  392. 

Even  if  plaintiff  was  driving  on  Sunday  in 
violation  of  law,  defendant  could  not  show 
the  illegality  of  his  act  as  a  defense.  Bald- 
win V.  Barney,  \i  R.  I.  392. 

5. as  possenson  011  cars  or  boats.* 

— To  deprive  a  party  of  redress  because  of 
his  own  illegal  conduct  the  illegality  must 
have  contributed  to  the  injury.  Therefore, 
the  mere  fact  that  one  who  has  been  injured 
through  the  negligence  of  another  was, 
when  he  received  the  injury,  returning  from 
work  he  had  been  doing  on  Supday  in  vio- 
lation of  the  Sunday  law,  will  not  deprive 
him  of  redress,  as  the  same  injury  would 
have  happened  upon  any  other  day  under 
the  same  circumstances  and  conditions. 
Illinois  C.  R.  Co.  v.  Die*.  91  ICy.  434,  15  S. 
IV.  Rep.  665. 

Riding  upon  Sunday  for  exercise,  and  for 
no  other  purpose,  is  not  a  violation  of  the 
statute  in  relation  to  the  observance  of  the 

*  See  also  Carriage  or  Passknobrs,  Sff  7« 
Recovery  for  injury  to  passenger  or  employ<6 

as  affected  by  Sunday  laws,  see  notes,  a  L.  R. 

A.  sat ;  18  Am.  &  Eno.  R.  Cas.  403. 


Lord's  day.  The  statute  was  not  intended 
as  an  arbitrary  interference  with  the  com- 
fort and  conduct  of  individuals,  when  neces- 
sary to  the  promotion  of  health  in  walking 
or  riding  in  the  or«n  air  for  exercise.  Sul- 
livan V.  Maine  C.  R.  Co.,  41  Am.  &»  Eng.  R. 
Cas.  195,  82  M/..  196,  19  Atl.  Rep.  ^69. 

Mass.  St.  Ok  1877,  ch.  23-!.  enacting  that 
the  provisions  of  the  Gen.  St.  ch.  84,  §  2, 
"prohibiting  traveling  on  the  Loid's  day, 
shall  not  constitute  a  defense  to  an  action 
against  a  common  carrier  of  passengers  for 
any  tort  or  injury  suffered  by  a  person 
so  traveling,"  does  not  apply  to  an  action 
brought  after  it  went  into  effect  for 
an  injury  received  before  its  enactment. 
Bucher  v.  Fitchburg  R.  Co.,  6  Am.  &*  Eng, 
R.  Cas.  212,  131  Mass.  156,  41  Am.  Rep.  216. 
—Distinguishing  Robbins  v.  Holman,  11 
Cush.  (Mass.)  26;  George  v.  Reed,  lot 
Mass.  378. 

Plaintiff  received  word  from  his  sister 
that  she  was  sick  at  a  distance  from  home, 
and  needed  assistance  in  returning.  He 
wrote  to  her  suggesting  that  she  get  a  friend 
to  accompany  her,  but  if  she  could  not  he 
would  meet  her  and  accompany  her.  He 
started  to  travel  to  the  place  where  he 
expected  mail,  to  see  if  it  would  be  neces- 
sary to  render  the  assistance,  and  also  to 
attend  to  some  secular  business,  but  was 
injured  through  tlie  negligence  of  the 
carrier  on  Sunday  while  en  route.  Held, 
that  merely  going  to  see  if  he  would  be 
called  upon  to  render  assistance  to  his 
sister  was  not  in  itself  a  work  of  charity, 
and  he  could  not  recover.  Burher  v.  Fitch' 
burg  R.  Co.,  6  Am.  &*  Eng.  R.  Cas.  212, 
131  Mass.  156.  41  Am.  Rep.  2 16. 

The  New  Jersey  statute  prohibiting  travel- 
ing and  worldly  employment  on  the  Chris- 
titin  Sabbath  provides  that  it  shall  be  lawful 
for  any  railroad  company  in  the  state  to  run 
one  passenger  train  each  way  over  its  road 
on  Sunday  for  the  accommodation  of  the 
citizens  of  the  state.  Held,  that  a  passenger 
on  such  a  train  might  recover  for  an  injury 
resulting  from  the  negligence  of  the  com- 
pany, though  he  was  not  traveling  for 
necessity  or  charity.  Smith  v.  New  York, 
S.  6-  W.  R.  Co.,  18  Am.  &*  Eng.  R.  Cas.  399, 
46  N,  J.  L.  7.— Followed  in  Southern 
Pac.  Co.  V.  Lafferty,  57  Fed.  Rep.  536. 

The  fact  that  plaintiff  had  been  traveling 
on  Sunday,  in  violation  of  the  statute,  will 
not  prevent  a  recovery  against  the  carrier 
for  an  injur«   received  while  leaving  its 


SUNEiAY,  6. 


811 


depot  grounds  at  the  place  of  destination. 
Delaware,  L.  &*  W.  R.  Co.  v.  Trautwein,  41 
Am.  &*  Eng.  R.  Cas.  187,  53  N.  J.  L.  169, 
7  L.  R.  A.  435,  13  N./.  L.  J.  7a,  19  Atl. 
Rep.  178. 

A  violation  of  the  duty  of  a  carrier  to 
carry  a  passenger  safely  renders  it  liable, 
and  such  liability  cannot  be  avoided  by  the 
fact  that  the  injured  person  was  traveling  on 
Sunday,  in  violation  of  the  statute.  Carroll 
V.  Staten  Island R.  Co.,6$  Bart.  (JV.  K.)  32: 
affirmed  in  58  N.  V.  126.— DISTINGUISH- 
ING Smith  V.  Wilcox,  24  N.  Y.  353. 

Neither  will  the  fact  that  the  contract  for 
transportation  was  made  on  Sunday  relieve 
the  carrier  from  such  liability.  Carroll  v. 
S/aten  Island  R.  Co.,  65  Barb.  (N.  Y.)  32 ; 
affirmed  in  58  A^.  Y.  126.— Quoting  Mer- 
ritt  V.  Earle,  29  N.  Y.  120. 

Carriers  who  provide  the  means  of  travel 
on  Sunday,  and  receive  persons  on  board, 
are  liable  for  personal  injuries  suffered  by 
them  from  the  negligence  of  the  carrier 
notwithstanding  the  statute  prohibiting,  or 
making  unlawful,  ordinary  travel  on  Sun- 
day. Landers  v.  Staten  Island  R.  Co.,  13 
Abb.  Pr.  N.  S.  {N.  Y.)  338 ;  reversed  in  33 
N.  Y.  450,  14  Abb.  Pr.  N.  S.  346.— A  PPL  V- 
3NG  Mohney  v.  Cook,  26  Pa.  St.  342.  Dis- 
approving Way  V.  Foster,  i  Allen  (Mass.) 
408;  Stanton  v.  Metropolitan  R.  Co.,  14 
Allen  485.  Explaining  and  quoting 
Harrison  v.  Marshall.  4  E.  D.  Smith  (N.  Y.) 
271 ;  Nodine  v.  Doherty,  46  Barb.  59. 
Quoting  and  disapproving  Philadelphia, 
W.  &  B.  R.  Co.  V.  Philadelphia  &  H.  de  G. 
Steam  Towboat  Co..  23  How.  (U.  S.)  218. 

The  statute  was  intended  to  encourage 
the  quiet  and  proper  observance  of  the 
Sabbath,  and  does  not  apply  to  a  case  where 
'  peaceable  persons,  needing  recreation  and 
fresh  air  for  the  health  of  themselves  or 
their  children,  go  upon  a  ferryboat  for  a 
short  excursion.  Such  persons  are  not 
traveling  within  the  meaning  of  the  statute. 
Landers  v.  Stattn  Island  R.  Co.,  13  Abb.  Pr. 
N.  S.  {N.  Y.)  338 ;  reversed  in  53  N.  Y.  450. 
14  Abb.  Pr.  N.  S.  346.— Quoting  Smith  v. 
Wilcox,  24  N.  Y.  353;  Miller  v.  Roessler,  4 
E.  D.  Smith  234. 

It  was  not  the  intention  or  policy  of  the 
stiitute  to  protect  carriers  of  passengers 
from  liability  for  mismanagement  in  carry- 
ing passengers  on  Sunday.  A  carrier  Is 
bound  to  use  the  highest  degree  of  care  and 
•kill  for  the  protection  of  its  passengers. 
Landtrs  v.  Stattn  Island  R.  CVr.,  13  Abb.  Pr. 


N.  S.  {N.  Y.)  338;  reversed  in  53  N.  Y.  ^yt, 
14  Abb.  Pr.  N.  S.  346. 

One  violating  the  statute  prohibiting 
travel  upon  Sunday  (1  N.  Y.  Rev.  St.  638, 
1 70)  is  not  without  the  protection  of  the  law. 
The  carrier  owes  to  him  the  same  duty  at  if 
he  were  lawfully  traveling,  and  is  responsi- 
ble for  a  failure  to  perform  it,  the  same  in 
the  one  case  as  in  the  other.  Carroll  v. 
Staten  Island  R.  Co.,  58  N.  Y.  126,  7  Am. 
Ry.  Rep.  23.  9  Am.  Ry.  Rep.  486;  affirming 
65  Barb.  32.— DISTINGUISHING  Northrup  v. 
Foot.  14  Wend.  248 ;  Watts  v.  Van  Ness.  I 
Hill  76;  Smith  v.  Wilcox.  24  N.  Y.  353. 
Following  Philadelphia.  W.  &  B.  R.  Co. 
V.  Philadelphia  &  H.  de  G.  Steam  Tow- 
boat  Co..  23  How.  (U.  S.)  218.  Quoting 
Mohney  v.  Cook,  26  Pa.  St.  342. 

The  fact  that  a  person  was  traveling  for 
pleasure  on  Sunday  does  not  affect  his 
right  to  recover  for  an  injury  received  on  a 
street  railway  through  the  negligence  of  the 
company's  servant.  Knowlton  v.  Milwaukee 
City  R.  Co.,\f>  Am.  *•  Eng.  R.  Cas.  330,  59 
Wis.  278,  18  A^.  W.  Rep.  17. 

6.  Injuries  at  crossings.  — A  com- 
pany was  sued  for  running  its  train  against 
a  wagon  on  a  highway  crossing  and  kill- 
ing the  occupants  thereof.  The  collision 
occurred  on  Sunday.  It  was  urged  that  the 
company  had  no  right  to  run  its  trains  on 
Sunday,  but  there  was  no  evidence  to  show 
that  those  driving  in  the  wagon  had  any 
right  to  drive  on  the  highway  on  Sunday. 
Held,  that  the  fact  that  the  collision  oc- 
curred on  Sunday  had  no  effect  on  the  rights 
of  the  parties.  Morris  v.  Chicago,  M,  &*  St. 
P.  R.  Co.,  26  Fed.  Rep.  22. 

Plaintiff  was  traveling  on  a  highway  to 
.  ascertain  whether  a  house  which  he  had 
hired,  and  into  which  he  expected  to  move, 
had  been  cleaned,  and  was  injured  in  cross- 
ing a  railroad  track.  Held,  that  he  was  not 
traveling  for  necessity  or  charity,  and  could 
not  recover.  Smith  v.  Boston  &*  M.  R.  Co., 
120  Mass.  490.— Disapproved  in  Baldwin 
V.  Barney,  12  R.  I.  392. 

A  party  traveling  upon  a  highway  upon 
the  Sabbath,  either  from  necessity  or  for 
pleasure  or  business,  who  is  injured  by  a 
collision  with  a  train  at  a  crossing,  is  not 
barred  from  recovery  against  the  company 
for  its  negligence  from  the  fact  that  the 
injury  occurred  on  Sunday.  Van  Auktn  v. 
Chicago  &»  W.  M.  R.  Co.,  96  Mick.  307,  5$ 
A^.  W.  Rep.  971.— Q VOTING  Sharp  V.  Ever- 
green Tp.,  67  Mich.  443. 


b 


8M 


SUNDAY,  7-10. 


^■ 


7,  Injuries  to  •mployes.*  —  Where 
a  brakeman  is  killed  while  in  the  dis- 
charge of  duty,  through  the  negligence 
of  the  company  in  failing  to  furnish  safe 
appliances,  the  company  cannot  defeat  a 
recovery  by  showing  that  he  was  at  work  at 
the  time  in  violation  of  the  Sunday  law. 
Louisville.  N.  A.  &•  C.  R.  C».  v.  Buck,  38 
Am.  &*  Etig.  R.  Cat.  i^i,  116 Ind.  566. 19  A^ 
E.  Rtp.  453,  a  L.  R.  A.  520,  28  Am.  L. 
R^.  148.— Following  Louisville.  N.  A.  & 
C.  R.  Co.  V.  Frawley.  no  Ind.  18. 

A  conductor  of  a  street-car  who  is  per« 
forming  the  ordinary  duties  of  his  em- 
ployment on  Sunday  is  both  laboring  and 
traveling  in  violation  of  Mass.  Gen.  St.  ch. 
84,  S§  I.  3;  and  if,  while  standing  on  the 
step  on  the  side  of  an  open  car,  he  is  in- 
jured by  being  struck  by  a  car  of  another 
corporation  passing  on  a  parallel  track,  his 
illegal  acts  necessarily  contribute  to  cause 
his  injury,  and  preclude  his  maintaining  an 
action  therefor,  notwithstanding  the  statute 
of  1 877,  cli .  332.  Day  V.  Highland  St.  R.  Co., 
15  Am.  &*  Etig.  R.  Cat.  150,  135  Ma$s.  113. 
—  Following  McGrath  v.  Merwin.  iia 
Mass.  467. 

An  engineer  performing  the  ordinary 
duties  of  his  employment  on  Sunday  is 
laboring  in  violation  of  Mass.  Pub.  St.  ch. 
98,  t  2  (unless  the  running  of  the  train  on 
which  he  is  employed  is  a  work  of  necessity 
or  charity),  and  if  he  it  injured  by  a  de- 
fect in  the  track,  his  illegal  act  contributes 
to  his  injury  and  precludes  his  recovering 
therefor.  Rtad  v.  Boston  &*  A.  R.  Co.,  140 
Mass.  199.  4  N.  E.  Rep.  227. 

In  such  case  plaintiff  testified  that  the 
train  was  made  up  of  box  and  stock  cars ; 
that  there  was  stock  on  the  train;  that 
there  was  no  convenience  for  feeding  and 
watering  stock  at  the  place  of  departure; 
that  he  did  not  .enow  how  they  were  to  be 
fed  and  wi.tered  ':here.  Held,  that  there  was 
not  suffirient  evidence  that  plaintiff  was  en- 
gaged ir.  a  work  of "  necessity  "  or  "  charity  " 
within  the  above  statute.  Read  v.  Boston 
&*  A.  R.  Co..  140  Mass.  199. 4  N.  E.  Rep.  327. 

Where  a  track  repairer  is  injured  while  at 
work  on  the  Sabbath  day,  and  he  is  required 
to  work  on  that  day.  the  mere  fact  that  the 
accident  occurred  on  Sunday  will  not  re- 
lease the  company  from  liability.  Johnson 
V.  Missouri  Pac.  R.  Co.,  33  Am.  &•  Et^g.  R. 
Cos.  439.  18  Net.  690.  s6  A^.  IV.  Rep.  347. 

*  Injuries  to  employto  on  Sundays,  see  note% 
98  Am.  &  Eno.  R.  Cas.  161 ;  S3  M.  434. 


8.  Injuries  to  aniniAlSt  —  Where  an 
animal  is  killed  by  a  train  run  on  Sunday, 
the  liability  of  the  company  is  to  be  deter- 
mined by  the  same  rules  as  if  the  accident 
had  occurred  upon  any  other  day.  Tingle 
V.  Chicago,  B.  &»  Q.  R.  Co.,  60  Iowa  333. 14 
AT.  IV.  Rep.  320. 

O.  Duty  to  reftraln  from  running 
trains  on  Sunday.*— The  fine  provided 
by  Iowa  Code.  {4072,  is  the  only  penalty 
which  a  company  incurs  for  running  its 
trains  on  Sunday.  Tingle  v.  Chicago,  B.  &» 
Q.  R.  Co.,  60  /owa  333.  i^N.tV.  Rep.  320. 

The  making  by  a  company  of  ordinary 
repairs  of  its  track  is  not  a  work  of  neces- 
sity within  the  meaning  of  Ky.  Gen.  St,  ch. 
29,  art.  §7,  I  10.  which  provides  that  no 
work  shall  be  done  on  the  Sabbath  day 
"except  the  ordinary  household  offices  or 
other  work  of  necessity  or  charity."  Where, 
however,  any  part  of  a  track  is  suddenly 
rendered  unsafe  on  the  Sabbath  day,  and 
delay  might  endanger  the  safety  of  passen- 
gers or  freight,  the  company  may  repair  the 
track  without  violating  the  statute.  LouiS' 
ville  &*  N.  R.  Co.  v.  Com.,  92  Ry.  114,  17  5^. 
IV.  Rep.  374. 

Early  on  Sunday  morning  the  fire  depart- 
ment of  a  town  ran  a  hose  across  a  rail- 
road track ;  it  was  cut  in  two  by  a  gravel 
train  of  the  company,  and  the  town  sued 
the  company.  Held:  (1)  that  plaintiff  was 
not  a  trespasser  on  the  track ;  (2)  that  those 
in  charge  of  the  hose  had  a  right  to  expect 
that  no  trains  would  be  run  on  that  day ;  (3) 
that  if  the  running  of  the  train  on  Sunday 
in  violation  of  law  was  the  direct  cause  of 
the  injury,  the  action  could  be  maintained 
without  further  proof  of  negligence.  Hyde 
Park  V.  Gay,  120  Mass.  589. 

10.  Running  street-cars  on  Sun- 
day.— The  running  of  street-cars  in  a  city 
on  Sunday  is  a  work  of  necessity.  At^usta 
&*  S.  R.  Co.  V.  Rensi,  SS  Ga.  126. 

Under  the  Massachusetts  statutes  one 
who  travels  on  Sunday  merely  to  make  a 
visit  to  a  stranger,  without  any  occasion  of 
necessity  or  charity,  is  traveling  unlawfully, 
and  cannot  recover  from  a  street-car  com- 
pany that  negligently  injures  him.  Stanton 
V.  Metropolitan  R.  Co.,  14  Allen  (Mass.)  485. 
—Disapproving  Philadelphia,  W.  &  B.  R. 
Co.  V.  Philadelphia  &  H.  de  Cr.  Steam  Tow- 
boat  Co.,  23  How.  (U.  S.)  218.  — Disap- 
proved IN  Landers  v.  Staten  Island  R.  Co« 

*  Sunday  laws  as  affecting  right  to  run  trains, 
sec  iiute,  14  L.  R.  A.  194. 


SUNDAY  LAWS— SUPERINTENDENT,  1. 


13  Abb.  Pr.  N.  S.  (N.  Y.)  338.  Followed 
IN  Bucher  v.  Cheshire  R.  Co.,  34  Am.  & 
Eng.  R.  Cas.  389,  135  U.  S.  SSS- 

A  street-car  which  is  run  on  Sunday  for 
the  purpose  of  accommodating  the  public 
generally  and  earning  money  from  any  one 
who  may  see  fit  to  travel  on  it  is  run  in  vio- 
lation of  Mass.  Gen.  St.  ch.  84,  §§  i,  2.  aN 
though  some  of  the  passengers  may  be  trav« 
sling  lawfully.  Day  v.  Highland  St.  R.  Co., 
ilAm.&*  Eng.  Ji.  Cat.  1 50, 1 35  Mass.  1 1 3. 

The  running  of  street-cars  on  Sunday  is 
a  violation  of  law ;  but  equity  will  not  en« 
join  such  running  at  the  suit  of  individuals, 
where  the  bill  and  proofs  show  nothing  ex- 
cept a  violation  of  law,  without  any  special 
pecuniary  damage  to  complainants.  Spar- 
hawk  V.  Union  Pass,  R.  Co.,  54  Pa.  St.  401. 

Chancery  will  not  enjoin  the  performance 
of  acts  for  which  damages  may  not  be  re- 
covered at  law.  So  an  injunction  will  not 
lie  to  restrain  the  running  of  street-cars  on 
Sunday  where  the  injury  complained  of  is 
only  mental  or  spiritual.  Sparhawk  v. 
Union  Pass.  R.  Co.,  54  Pa.  St.  401. 

The  running  of  street-cars  on  Sunday  will 
not  be  enjoined  at  the  suit  of  individuals, 
though  it  be  unlawful,  where  the  only  dam- 
ages ithown  are  mental  or  spiritual,  which 
are  not  cognizable  in  the  courts.  Sparhawk 
V.  Union  Pass.  R.  Co.,  54  Pa.  St.  401. 

Defendant  company  was  incorporated  un- 
der the  Street  Railway  Act  (Ont.  Rev.  St. 
1887,  c.  171),  which  authorized  it  to  con- 
struct and  operate  (on  all  days  except  Sun- 
days) a  street  railway.  Held,  that  an  action 
by  tlie  crown  would  not  lie  to  restrain  de- 
fendant from  operating  the  road  on  Sunday, 
the  restriction  against  its  doing  so  being  at 
most  an  implied  one,  and  no  substantial 
injury  to  the  public  or  any  interference 
with  proprietary  rights  being  shoiyn.  At- 
tormy-Gtntralv.  Niagara  Falls,  W.  P.  &* 
C.  Tramway  Co.,  18  Ont.  App.  453;  affirm- 
i:ig  19  Ont.  624.— Approving  Attorney- 
General  V.  Great  Eastern  R.  Co.,  1 1  Ch.  D. 
449.  Reviewing  Attorney-General  v.  Ely, 
H.  &  S.  L.  R.  Co.,  4  Ch.  194. 


Proiecutlon  for  ▼iolation  of,  see  Criminal 

Law,  00. 
Violation  of,  by  carrier,  see  Caruagi  0$ 

Mkrchandisi,  117 


SUNDAY  LAWS. 

A*  regulations  of  interstate  traffic,  see  In- 
terstate Commerce,  223. 

Effect  of,  as  a  defense  to  action  for  injury 
to  employes,  see  Employes,  Injuries  to, 
6ff8. 

Fellow-servant  rule  not  affected  by,  see  Fel- 
low-servants, 11. 


SUPEBFLUOnS  LANDS.  \ 

Sale  of,  under  Canadian  expropriation  acts,   ' 

see  Eminent  Domain,  1231  I 
English  compulsory  purchase  laws, 

see  Eminent  Domain,  1100-1123, 


SUPERINTENDENT. 
Authority  of,  to  employ  physician,  see  Midi* 

cal  Services,  12. 
Powers  of,  in  settlement  of  claims,  see  Wiar* 

BRN  &  Atlantic  R.  Co.,  1 
Service  of  process  on,  see  Process,  25. 
Whether  fellow-servant  or  vice-principal  oV 

other  employes,  see   Fellow-servants, 

355-305. 

1.  Power  to  bind  the  company, 
generally.* — An  assistant  superintendent 
of  a  company,  authorized  to  employ  a  sta- 
tion agent,  must  be  held  to  ha''e  the  au- 
thority to  agree  on  said  agent's  salary  or 
compensation.  Alabama  G.  S.  R.  Co.  v. 
Hill,  76  Ala.  303.— Quoting  Alabama  Sr  T 
R.  R.  Co.  V.  Kidd,  29  Ala.  221. 

Where  railroad  companies  are  icequired 
by  statute  to  fence  their  tracks,  and  inas- 
much as  they  can  only  act  by  officers  or 
agents,  the  general  superintendent  of  a  road 
will  be  presumed  to  be  clothed  with  authority 
to  bind  the  company  by  contract  to  fence  its 
track.  New  Albany  &-  S.  R.  Co.  v.  Haskell, 
II  Ind.  301.— Followed  in  Cincinnati,  I., 
St.  L.  &  C.  R.  Co.  V.  Davis,  126  Ind.  99. 
Reviewed  in  Louisville,  E.  &  St.  L.  R. 
Co.  V.  McVay,  98  Ind.  391. 

No  officer  of  a  corporation,  unless  spe- 
cially authorized,  has  power  to  bind  the 
corporation,  except  in  the  discharge  of  his 
ordinary  duties.  It  is  not  part  of  the  ordi- 
nary duties  of  the  superintendent  of  a  rail- 
road to  represent  the  corporation  in  judicial 
proceedings.  So  a  superintendent  cannot 
bind  his  corporation  by  an  affidavit  to 
remove  a  suit  to  a  federal  court,  in  the  ab- 
sence of  special  authority  to  make  such 
affidavit.  Mahone  v.  Manchester  6f  L.  R, 
Corp.,  Ill  Mass.  72.— Quoted  in  Quigley 
V.  Central  Pac.  R.  Co..  11  Nev.  3J0. 

*  Liability  of  company  for  contracts  made  by 
president  superintendent,  division  superintend- 
ent. :i(ul  general  agents  or  managers,  see  >.ate,  ao 
L    R.  A  6o6. 


a 


•0 

n; 


b 


m 


iH 


824 


SUPERINTENDENT,  2-6. 


I    " 


In 


I 


11,  ,t 


I"  i 


While  Investigating  an  accident  on  a 
street-car,  an  agent  of  tlie  company's  super- 
intendent applied  to  one  who  had  seen  some- 
thing of  the  accident,  and  asked  him  to 
malce  a  statement.  The  witness  said  that 
he  could  not  make  such  statement  witii- 
out  going  on  the  ground  and  verifying  the 
facts,  to  which  the  superintendent's  agent 
consented.  The  witness  went,  made  tlie 
statement,  which  was  used,  and  upon  failure 
to  receive  payment  sued  the  company  for 
time  spent  in  going  to  the  place  of  the  acci- 
dent and  for  making  the  statement.  NfM, 
that  the  question  of  the  agent's  authority  so 
to  employ  him  was  for  the  jury,  and  that, 
being  authorized  to  go  to  the  place  of  the 
accident,  the  witness  might  recover  if  he  had 
believed  it  necessary  to  go  in  order  to  make 
a  correct  statement,  even  though  the  jury 
might  be  satisfied  that  it  was  not  actually 
necessary.  Lovejoy  v.  Middlestx  R.  Co.,  1 28 
Mais.  480. 

Where  plaintiff  is  in  possession  of  a  rail- 
road platform  used,  under  a  contract,  for 
storage  purposes,  and  the  company  has 
given  notice  to  terminate  the  contract,  the 
general  superintendent  of  the  road  has  the 
power  to  withdraw  the  notice,  and  let  the 
lease  stand;  and  it  is  error  to  reject  evi- 
dence concerning  a  conversation  between 
plaintiff  and  the  superintendent  touching 
the  matter.  Patrick  v.  Richmond  d*  D.  R, 
Co.,  26  Am.  &*  Eng.  R.  Cat.  78,  93  A'; 
Car,  432. 

A  general  superintendent  of  a  company 
has  authority  to  permit  a  contractor,  plant- 
ing hedges  for  the  company  at  its  station?, 
to  place  the  live  plants  in  a  piece  of  ground 
at  one  of  such  stations;  such  authority 
need  not  be  under  seal.  Taff  Vale  R.  Co. 
V.  Giles,  2EI.&*  Bl.  822,  18  Jur.  510,  23  L. 
J.  Q.  B.  43. 

It  is  within  the  scope  of  the  authority  of 
the  general  superintendent  of  a  railway 
company  to  refuse  to  give  up  on  demand 
goods  left  with  the  company  in  the  course 
of  its  trade  as  a  common  carrier ;  if  such 
refusal  is  unreasonable,  the  company  is 
guilty  of  conversion.  Taff  Vale  R.  Co.  v. 
Giles,  2  El.6*Bl.  822,  i%Jur.  510,  23  L.J. 
Q.  B.  43. 

2. by  listing  property  for  taxa- 
tion.—Where  a  company  is  sued  to  recover 
a  tax.  and  avers  in  its  answer  that  its  super- 
intendent furnished  the  assessor  with  a 
written  statement  of  the  real  estate  belong- 
ing to  the  company,  it  cannot,  on  the  trial, 


be  heard  to  dispute  the  authority  of  Its 
agent  to  give  a  list  of  its  property,  nor  to 
deny  that  the  property  contained  in  the  list 
belonged  to  the  company.  People  v.  Stock- 
Ion  6r*  C.  R.  Co.,  49  Cal.  414. 

Such  statement  of  property  furnished  to 
an  assessor  is  binding  on  the  corporation, 
and  justifies  the  assessor  in  adopting  it  as 
a  correct  statement  of  the  property  belong- 
ing to  the  company.  PeopU  v,  Stockton  &* 
C.  R.  Co.,  49  Cal.  414. 

3.  by  noKliffence  or  tortious 

actH. — If  the  superintendent  of  a  company 
is  clothed  with  the  power  and  authority  of 
the  board  of  directors,  so  far  as  regards  the 
control  and  management  of  the  trains  and 
all  the  arranfjemcnts  connected  therewith, 
he  is  the  immediate  represent.itive  of  the 
company,  and  the  company  is  liable  for  an 
injury  resulting  from  the  negligence  or  im- 
proper order  of  the  superintendent,  just  as 
much  as  if  such  order  had  emanated  directly 
from  an  act  of  the  company  in  its  corporate 
capacity.  Washburn  v.  Nashville  &*  C.  R. 
Co.,  3  HeadiTenn.)  638, 

4.  Duty  to  pay  onsltiecr'it  estl- 
inateH  -Where  an  estimate,  signed  by  the 
engineer  who  made  it,  is  presented  to  the 
superintendent  of  a  railway,  it  is  his  duty 
as  disbursing  officer,  under  the  terms  of  the 
contract,  to  pay  it.  He  has  no  right  or 
power  to  control  the  engineer,  nor  can  he 
inquire  into  the  propriety  of  the  data  upon 
which  the  calculations  are  made.  The  duty 
of  the  superintendent  is  ministerial,  and 
having  no  power  to  withhold  payment,  the 
estimate  is  a  voucher  for  disbursement 
which  must  be  allowed.  Com.  v.  Clarkson, 
3  Pa.  St.  277. 

5.  ConipeuHatlou.  —  If  a  superintend- 
ent, nt  the  request  of  his  company,  before 
work  is  commenced  in  the  field,  performs 
services  not  technically  within  the  line  of  a 
superintendent's  duty,  it  will  be  presumed 
that  in  rendering  them  he  acted  in  his 
capacity  as  superintendent.  Bee  v.  San 
Francisco  &»  H.  B.  R.  Co.,  46  Cal.  348.  7 
Am,  Ry.  Rtp.  504. 

If  there  is  no  special  agreement  fixing  the 
amount  a  superintendent  shall  receive  for 
his  services  as  superintendent,  he  is  entitled 
to  recover  the  value  of  such  services.  Bet 
V.  San  Francisco  &»  H.  B.  R.  Co.,  46  Cal. 
248,  7  Am.  Ry.  Rep.  504. 

A.  was  employed  as  superintendent  of  a 
railroad,  at  a  fixed  salary,  the  employment 
to  be  terminated  by  three  months'  notice  in 


SUPERINTENDENT,  6. 


886 


writing.  The  corporation  levied  its  railroad 
for  a  long  term  of  years  to  another  corpora- 
tion, of  which  lease  A.  had  notice;  and, 
upon  his  representation  that  he  had  accepted 
Ills  position  supposing  it  to  be  permanent, 
and  that  the  lease  would  be  a  damage  to 
him  for  which  he  ought  to  be  compensated, 
the  corporation  which  employed  him  voted 
to  pay  to  him  a  certain  sum  as  extra  compen- 
sation whenever  the  lessee  should  take  pos- 
session of  the  road.  The  lessee  took  pos- 
session on  a  certain  day,  and  the  corporation 
paid  to  A.  the  sum  so  voted,  and  also  his 
regular  salary  up  to  that  day.  Htld,  in  an 
action  by  A.  against  the  corporation  for 
three  months'  salary  from  the  date  when 
the  lessee  took  possession,  that  it  was  error 
in  the  presiding  judge,  who  tried  the  case 
without  a  jury,  to  rule  that,  as  matter  of 
law,  A.  was  entitled  to  recover,  without 
passing  upon  the  question  of  fact  whether 
A.,  by  accepting  the  extra  compensation 
voted,  had  not  waived  his  right  to  the  three 
months'  notice  provided  for  in  the  contract 
of  employment.  Nashua  &*  L,  R.  Corp.  v. 
Paige,  15  Am.  &*  Eng.  R.  Cat.  120,  135 
Mass.  14s. 

Where  one  contracts  to  employ  another 
for  a  certain  time  at  a  specified  compensa- 
tion, and  discharges  him  without  cause  be- 
fore  the  expiration  of  the  time,  he  is  in 
general  bound  to  pay  the  full  amount  of 
wages  for  the  whole  amount  of  time.  So 
held,  where  the  party  was  empk>yed  as 
superintendent  of  a  railroad  for  one  year  at 
a  salary  of  |i  500,  and  after  two  months'  ser- 
vice was  discharged  and  remained  without 
employment  during  the  whole  of  the  con- 
tract period  subsequent  to  his  discharge, 
having  given  notice  to  the  company  that 
he  was  ready  to  continue  in  its  service. 
Costigan  v.  Mohawh  &»  H.  R.  Co.,  2  Den. 
{JV.  Y.)  609. 

6.  Dismissal— Resignation.— The  su- 
perintendent of  a  railroad  received  a  letter 
from  the  president  stating  that  he  had 
written  to  the  second  vice-president  to  as- 
sume charge  of  the  road,  and  added  "  I 
presume  you  will  prefer  to  retire  by  means 
of  a  resignation,"  and  he  was  further  di- 
rected to  confer  with  the  second  vice-presi- 
dent and  to  turn  over  all  papers  in  his 
office.  The  next  day  he  called  on  the  sec- 
ond vice-president,  who  informed  him  that 
he  had  received  a  copy  of  the  letter  with 
further  instructions  to  take  charge  of  the 
office  and  its  books  and  papers,  and  he  at 


once  left  the  service  and  the  second  vice- 
president  took  immediate  charge.  On  the 
following  day  he  wrote  to  the  president, 
tendering  his  resignation,  to  Uke  effect  at 
once.  HeM,  that  the  letter  of  the  president 
operated  as  a  positive  and  peremptory  dis- 
missal ;  and  the  letter  on  the  next  day  did 
not  show  that  he  voluntarily  resigned,  nor 
could  it  be  construed  as  acquiescing  in  his 
dismissal.  Cumberland  &*  P.  R.  Co.  v. 
Slaeh,  45  Md.  161. 

In  such  case  the  company  claimed  that 
after  his  employment  the  superintendent 
was  accustomed  to  be  intoxicated,  and 
thereby  became  unfit  for  the  performance 
of  his  duties.  No  evidence  was  offered  to 
sustain  this  charge  until  the  case  had  closed 
on  both  sides,  when  the  company  called  a 
witness  who  had  already  been  on  the  stand, 
and  had  been  examined  by  the  company, 
and  proposed  to  prove  by  him  the  alleged 
intoxication,  //eld,  that  the  evidence  was 
properly  excluded.  The  evidence  should 
have  been  offered  at  the  proper  time,  espe- 
cially as  the  company  was  the  plaintiff  and 
had  the  opening  and  closing.  Cumberland 
6-  P.  R.  Co.  V.  Slack,  45  Md.  161. 

The  company  further  charged  that  the 
superintendent  failed  to  discharge  his  duty 
by  failing  to  collect  a  balance  due  the  com- 
pany from  a  certain  station  agent,  and  in 
falling  to  report  such  deficiency  to  the  com- 
pany. The  superintendent  gave  uncontra- 
dicted evidence  that  he  had  made  every 
effort  to  collect,  but  that  he  could  not  col- 
lect and  had  no  authority  to  bring  suit. 
//eld,  that  it  was  not  error  for  the  court  to 
instruct  the  jury  that  there  was  no  evidence 
that  the  dismissal  was  for  sufficient  cause. 
Cumberland &*  P.  R.  Co.  v.  Slack,  45  Md.  161. 

In  such  case  the  company  claimed,  among 
other  items,  that  the  superintendent  was 
liable  for  $953,  a  deficiency  in  his  cash  ac- 
count, l/eld,  that  the  superintendent  was 
not  liable  for  the  money  unless  he  had  re- 
ceived it ;  it  was  therefore  proper  for  the 
court  to  modify  an  instruction  asked  by  the 
company  which  recited  that  the  jury  were 
authorized  to  find  from  certain  facts  that 
the  superintendent  had  received  the  money, 
so  as  to  make  it  read  that  the  facts  would 
furnish  proper  evidence  for  the  considera- 
tion of  the  jury  as  to  whether  the  money  had 
been  received.  Cumberland  &*  P.  R.  Co.  v. 
Slack.  45  Md.  161. 

Where  a  superintendent  is  sued  after  his 
dismissal  for  a  balance  alleged  to  be  in  his 


«« 


b 


Il 


826 


SUPERINTENDENT,  7,  S—SURETY. 


hMdt  from  hit  caih  account,  and  for 
moneys  that  it  was  claimed  he  should  have 
collected  from  agents,  a  balance  due  him 
for  salary  until  the  end  of  the  year,  which 
he  claims  because  he  was  wrongfully  dis- 
charged, is  a  proper  set-off.  under  Md. 
Code,  art.  75,  ||  la,  13.  Cumttrland  A*  P. 
R.  Co.  V.  Slack.  4$  Md.  t6i. 

7.  Action  for  unlawful  dlaoharge. 
—In  an  action  against  an  express  company 
for  wrongfully  discharging  plaintiff  as  as* 
sistant  superintendent  of  the  company,  and 
to  recover  the  balance  of  a  year's  salary 
claimed  to  be  due  to  him,  his  declaration  to 
the  general  superintendent,  after  being  no- 
tified of  his  dismissal,  that  he  intended  to 
hold  defendant  responsible  for  his  year's 
salary,  is  not  admissible  in  evidence.  Ad' 
amt  Exp.  Co.  v.  Tr^o,  35  Md.  47. 

If  a  person  employed  by  the  year  as  an 
assistant  superintendent  of  a  company,  at  a 
stated  salary,  payable  monthly,  engages  in 
another  business  in  competition  with,  and 
calculated  seriously  to  injure,  that  of  the 
company,  and  being  notified  by  the  com- 
pany that  he  must  discontinue  said  busi- 
ness, refuses  to  do  so,  and  is  discharged  at 
the  expiration  of  six  months,  and  paid  for 
his  services  at  the  stipulated  price,  up  to  the 
time  of  his  discharge,  he  cannot  recover 
the  balance  of  the  year's  salary.  Adams 
Exp.  Co.  V.  Trtgo,  35  Md.  47. 

8.  Acting  auperintendent.— Two 
railroad  companies  entered  into  a  certain 
contract  relating  to  their  joint  occupancy  of 
a  new  passenger  station ;  and  it  was  pro- 
vided that  the  reasonable  expense  to  one 
of  the  companies  for  doing  certain  work 
should  be  determined  by  the  superintendent 
and  another  person.  Before  the  time  of 
making  the  determination  the  office  of  su- 
perintendent was  abolished  and  his  duties 
assigned  to  the  president.  Hold,  that  he 
was  the  proper  person  to  join  in  such  deter- 
mination. CoMtucticut  JUvor  R,  Co.  v. 
WillistoH,  16  Gray  {Matt)  64. 


SUPERIOR  8ERTAVT8. 

See  ViCK-PRINCIPAL. 


BXrPERSEDEAa 
Effect  of  appeal  aa  a,  see  Eminent  Domain, 
950. 


SUPERYISIOV. 

Bj  railway  company  over  bnsiaeas  of  express 
company,  see  Express  Company,  1 1. 


8TrPBR7I80R8. 

Call  by,  for  alectlon  aa  to  railway  aid,  see 
Municipal  and  Local  Aid,  1 13. 


8T7PPLB1ISHTART  AN8WER. 

In  trespaaa  by  landowner  for  wrongful  inter- 
ference with  property,  see  Eminent  Do- 
main, 1071. 


8UPPLB1IENTART  PLEADIVOS. 
When  proper,  aulBcient,  etc.,  see  Pleadino, 
100. 


SXrPPLSMEVTART  PR0GEEDIHO8. 
In  aid  of  execntion,  tee  Execution,  30. 


SUPPLIES. 

Claima  against  United  States  for,  see  Claims 
against  United  States,  1. 

—  for,  when  prior  to  mortgage,  see  Moxt- 
gages,  00. 

Filing  claim  of  lien  for,  see  Liens,  34. 

For  army,  carriage  of,  see  Land-grant  Rail- 
roads, 7. 

Issuing  receivers'  certiiicatea  in  payment  for, 
see  Receivers,  07. 

Liability  of  tmateea  for,  see  Mortgaop.s, 
151. 

Payment  of  claims  for,  oy  receiver,  see  Re- 
ceivers, 85. 

Priority  of  claima  for,  see  Mortgages,  281. 

mortgage  over  claima  for,  see  Mort- 
gages, 110. 

To  peraona  constructing  roada,  contracta  by 
agents  for,  see  Agency,  50. 


SUPPORT. 

Dependency  for,  as  giving  right  to  damages 
for  causing  death,  see  Death  by  Wrong- 
ful Act,  43. 

During  minority  aa  measure  of  damagea  for 
causing  death  of  parent,  sec  Death  by 
Wrongful  Act,  300. 

Of  paupers,  liability  for,  see  TAtipERs,  1. 

Proof  of  dependence  upon  deceased  for,  see 
Death  by  Wrongful  Act,  205. 


SUPREME  COURT  COMinSSIONERS. 

Powers  and  dutiea  of,  in  elevated  railway 

cases,  see  Elevated  Railways,  19-25. 


SURETT. 

In  condemnation  proceedings,  anbrogation 

of,  see  Subrogation,  2. 
Of  agents,  rights  of  companiea  as  respects* 

see  Express  Companies,  14. 


SURFACE  WATERS— SWITCHES. 


827 


Of  ttatien  agMta,  UabiUty  of.  ue  Station 

AOBNTI.  11. 

—  treMurer,  liability  of,  m*  OrnciKt,  10. 
On  bond  of  county  treasurer,  liability  of,  in 

COUNTIKS,  O. 

—  —  on  appeal  in  coadeauwtion  proceed- 

ing!, right!  of,  ue  Eminent   Domain, 
044. 

—  receiver'a  bond,  liability  of.  tee  RicsmM. 

34. 


Of  stock  to  company,  eSict  of,  on  UaMlity  of 
ttockholdert  to  creditor*,   tee   Stock- 

HOLDBM.  60. 

—  ticket,  lee  Tickbti  and  Faeu,  87»  88. 


BURVETORS. 
Aisoianient  of  compensation  by.  In  England. 
■ee  Eminent  Domain.  1 108* 


SURFACE  WATERS. 
Accumulating  and  obstructing  the  flow  of. 

■ee  Flooding  Lands,  l)il-30. 
Duty  to  proTide  outlet  for,  ue  Culvirts. 

12.  13. 
Liability  for  flooding  landa  with,  m«  Fux>D' 

I  NO  Lands,  24-40. 
Rights   and   liability  with   regard  to,  ue 

Watbbs  and  Watbkcoumes,  24-20. 


8UROE0HB. 
As  experts,  see  Witnesses,  104-178* 


BURYETB. 

Entry  without  payment  of  damages  for  pur- 
pose of  making,  see  Eminent  Domain, 
417. 

Of  intersection  of  railways,  ue  Crossing  or 
Railroads,  82. 

—  public  lands,  ue  Public  Lands.  20-27. 

Preliminary,  ue  Location  op  Rouie,  O. 

Title  of  state  to  land  granted  by  federal 
government  before  making,  ue  Land 
Grants,  12. 

Uto  of,  in  condemnation  proceedings,  ue 
Eminent  Domain,  332-340. 


BUROICAL  IHBTRUMEETB. 
When  may  be  carried  as  baggage,  see  Bao- 
OAGE,  43. 


BURPLUBAOB. 
Disregarding,  in  pleadings,  ue   Pliadino, 

170. 
In  plaintifl's  pleadings  in  action  for  damages 

caused  by  fire,  ue  Pikes,  108. 

—  proceedings    against    elevated    railway 

company,  see  Elevated  Railways,  100. 

—  verdict,  see  Trial,  105. 

What  allegations  may  be  stricken  ont  ••, 
see  Animals.  Injuries  to,  800* 


BURVIYAL. 

Of  action,  see  Abatement,  14-10. 

—  cause  of  action  for  causing  death,  efliect 

of  statutes  as  to.  see  Death  by  Wrong- 
ful Act,  84. 
injury,  after  death  of  party  in- 
jured, see  Death  by  Wrongful  Act,  3. 

—  — in  ejectment,  see  Ejectment,  10. 


BURVIYINO  PARTNER. 
Powers  of.  ue  Partnership.  7. 


BTTRyiVGRBEIP. 
Preiomption  of,  see  Evidence.  118. 


SURPRISE. 

As  ground  for  continuance,  ue  Trial,  83. 
new  trial,  see  New  Trial.  00»  07. 


SURHSN9ER. 

Of  bonds  In  exchange  for  new  ones,  see 
Bonds.  30. 

—  certificate  on  transfer  of  stock,  ue  Stock. 

01. 

—  corporate   bonds,   suit   to  enforce,  ue 

Bonds,  02. 

—  franchise,  forfeiture  for.  ue  Dissolution. 

etc.,  O* 

—  goods,  by  carrier,  to  mortgagee,  ue  Car- 

riage OF  Merchandise,  301. 

—  possession,  cost  of,  as  an  element  of  land 

damages,  see  Eminent  Domain.  080. 

—  power  to  tax.  ue  Taxation.  O. 


BUBPENSIOir. 

Of  business  by  corporate  defendant,  when 
removes  bar  of  statute,  see  Limitations 
OF  Actions,  32. 

—  —  forfeiture  for.  see  Dissolution,  etc.,  7. 

—  limitation  laws,  ue  Limitations  or  Ac* 

TIONS,  10. 


SWAMP  LANDS. 

Donation  of,  in  aid  of  railways,  ue  Munici- 
pal AND  Local  Aid,  240. 
Grants  of,  ue  Land  Grants,  128-133. 
When  subject  to  taxation,  see  Taxation,  83. 


SWITCHES. 

Admissibility  of  evidence  as  to  dangerous 
character  of,  ue  Evidence,  07. 

Construction  of,  under  provisions  of  charter, 
■ee  Charters,  07. 


^ 


:l 


!! 


'^'ikl 


i 


,1 


\ 


I 


I. 


888 


SWITCHING— TAXATION. 


CoTMUUit  to  maintain,  when  mm  with  tlie 

land,  ice  Covknants,  O. 
Duty  of  carrier  as  to  conatruction  and  repair 

eC  tee  Carriage  op  Paubnoers.  178. 

—  —  company  as  to  safety  of,  mc  EMPLOvit, 

Iniuribs  to,  7 1-76. 

t9  blocli,  ite  EMPLOvis,  Injuries 

TO,  68. 

—  to  fea.r  8  at,  >ee  Fences,  60* 

repitilr,  see  Street  Railways,  150. 

Instmc*ieiis  as  to  safety  of,  see  Death  by 

Wrongpul  Act,  338. 
License  to  use,  see  License,  8. 
Location  of,  in  city  streets,  see  Streets  and 

Highways,  160. 
Negligence  as  to  safety  of,  question  for  Jury, 

see  EMPLOYts,  Injuries  to,  671. 
On  branch  roads,  see  Branch  and  Lateral 

Roads,  8. 

—  horse  railways,  patents  for,  see  Patents, 

38. 

Proof  of  defects  in,  see  Death  by  Wronopul 
Act,  267. 

Regulation  of,  by  commissioners,  see  Rail- 
way COMMISSIUNERS,  19. 

Right  of  street   railway  to  construct,  see 

Street  Railways,  122. 
Rule  respecting  the  adjustment  of,  see  Em- 

ployAs,  Injuries  to.  45S. 


SWITOH  KASKER. 

Knowledge  of  absence  of,  assmiption  of  risk 
after,  see  Employes,  Injuries  to,  245. 


SWITOHMEV. 

As  experts,  see  Witkbsses,  180. 

—  fellow-senrants  of  brakemen,  see  Fellow- 

servants,  377. 

car  inspectors,  see  Frllow-sbrv- 

ANTi,  230,  231. 

—  —  —  —  engineer,  see  Fellow-servants, 

203. 
—  fbreman,    see   Fellow-servants, 

321. 
otlier  empioyts,  see  Fellow-serv* 

ANTS,  410-423. 
section   foreman,    see    Fellow. 

SERVANTS,  353. 

Contributory  negligence  of  deceased,  in  ac- 
tion for  causing  death,  see  Death  by 
Wronopul  Act,  220. 


BWiTCHnro. 

Non-liability  for  negligence  of  fellow^serr- 
ants  in,  see  Fellow-servants,  41»  42. 


TACKIHO. 
Of  one  adverse  possession  upon  another,  see 


Adverse  Possession,  O. 


TAKIHO. 

Damaging,  injuring,  etc.,  what  r->i|stitntes, 
see  Streets  and  Highways,  120-122. 

Diiference  in  value  before  and  alter,  when 
measure  of  damages,  see  Eminent  Do- 
main, 452. 

Estimating  land  damages  from  time  of,  see 
Fminknt  Domain,  450. 

Interest  on  damages  from  time  of,  see  Emi- 
nent Domain,  760. 

Of  private  property  for  military  use,  see 
War,  2. 

What  constitutes,  under  English  statutes, 
see  Eminent  Domain,  1007-11  TO. 


TARGET  BWIT0HE8. 
Duty  of  company  to  provide,  see  EMPixivis, 
Injveiesto,  73. 


SWITCH  POLE. 

Contributory  negligence  of  employ^  struck 

by,  see  EmployAs,  Injuries  to,  360. 

SWITCH  TAEDS. 

Duty  of  company  as  to  safety  of,  see  Em- 
ployes, Injuries  to,  76. 


TAXATION. 

Assessed  value  as  evidence  of  market  value. 

see  EviDENCF,  5. 
By  state  of  interstate  carriers  or  tralBc,  see 

Interstatk  Commkrck,  185-214. 
railway  property,  see    Union   Pa- 

cipic  R.  Co.,  7. 
Effect  of   consolidation  upon    exemptions 

from,  see  Consolidation,  28. 
Enforcement  of  taxes,  see  Mandamus,  ]  8. 
Evidence  of  valuation  for,  on  assessment  of 

land   damages,    see    Eminent    Domain, 

631,  632. 
Exemption  from,  in  charters,  see  Charters, 

76. 
In  aid  of  railways,  see  MuNiaPAL  and  Local 

Aid,  405-4.38. 
Legislature  canrot  confer  unlimited  power 

of,  see  Mi'Nic^PAL  and  Local  Aid,  18. 
License    taxes,    see    Municipal   Corpora- 
tions, 6. 
Lien  for  taxes,  purchaser  takes  subject  to, 

see  Mortgages,  258. 


•  ••Sto' 


TAXATION,  1,2. 


8S9 


Lien  for  taxes,  when  prior  to  mortgage,  ice 

Mortgages,  lOff. 
Mnnicipal  power  to  grant  exemptions,  lee 

Municipal  Corporations,  6. 

—  tax,  see  Municipal  Corporations,  4* 

Of  branch  roaas,  see  Branch  and  Lateral 

Roads,  18. 

—  car  trust  associations,  see  Car  Trust  As> 

SOCIATIONS,  3. 

—  certificates  of  indebtedness,  see  Certifi- 

cates op  Indkbtrdnbss,  4. 

—  dividends,  see  Dividends,  10. 

—  express  companies  under  state  laws,  see 

Commerce,  12. 

—  ferries,  see  Ferries,  14. 

—  foreign  corporation,  see  Foreign  Corpora- 

tions, 14. 

—  importers,  state  laws  imposing,  see  Com- 

merce, 11. 

—  receiTcrs'  certificates,  see  Receivers,  110. 

—  roads  running  into  other  states,  see  Cum- 

mrrce,  13. 

—  sleeping  cars,  see  Interstate  Commerce, 

100-104. 
— •  street   railway,  see    Street    Railways, 
278-304. 

—  witness  fees,  see  Witnesses,  3. 
Person  paying  taxes  under  mistake  as  to 

title,  right  of,  to  land  damages,  see  Emi- 
nent Domain,  44ff. 

Power  of  superintendent  to  list  property  for, 
see  Superintendent,  3. 

Right  to  interest  on  taxes,  see  Interest,  O. 

Stipulation  in  mortgage  relative  to,  see  Mcrt- 
cages,  82. 

Tax  list  as  evidence  of  value,  see  Evidence, 
248. 

I.  THB  POWER  TO  TAX 829 

n.  OORniTUTIOHALITT  OF  STATUTES  836 
m.  nrTBBPBETATIOE  OF  TAX  LAWS. .  850 
rr,  WHO    MAT   BE  TAXED,  AMD  FOB 

WHAT  PBOPBBTT 8$$ 

I.  tVAo  may  bt  Taxtd 8SS 

a.   What  Property  is  subject 
to  Taxation 861 

a.  In  General 861 

b.  Unds    Held   Under 

Government  Grants.  878 
▼.  IRVB  OF  FBOPEBTT  FOB  TAXA- 

TIOl 884 

VI.  IXEHPTIOKS 888 

1.  General  PrincipUt 888 

2.  What  is  Exempt 905 

3.  Particular  Railroads 917 

Tn.  ASSESSMEHT  AED  LETT 933 

▼m.  COIXEOTIOH 983 

I.  In  General 983 

3.  Lien  for  Taxes 989 

3.  Actions  for  Tuxes 990 


IX.  BALE   or   lAMSB   FOB   HOV-VAT- 

MEET— TAX  TITLES 99^ 

X.  BEMEDIES  FOB  UEIAWFOL  TAX- 

ATIOE 998 

1.  fn  General 998 

2.  Action  to  Jtecover  Bach. . .  999 

3.  Injunction looa 

XI.  XE0LI8R  POOB  BATES  AMD  OTHEB 

BATES loio 

XIL  TAXATIOH   OF   OAEASIAE    BAIL- 

BOADS 1018 

Xm.  LICEEBE  TAXES I03l 

XIV.  IHOOME  TAXES 1034 

I.  THE  POWEB  TO  TAX. 

1.  In  general.  —  Taxation  is  an  equal 
division  of  public  expense.  State  v.  United 
States  6*  C.  Exp.  Co.,  60N.II.2tg. 

The  question  of  the  taxation  of  lands, 
where  there  is  no  exemption  in  the  grant,  is 
governed  by  the  laws  of  the  state.  White  v. 
Burlington  6-  M.  B.  B.  Co.,  5  Neb.  393. 

Although  an  incorporated  company  has 
not  for  thirty  years  been  charged  with  taxes 
upon  its  property,  the  court  will  neverthe- 
less sustain  the  right  to  tax,  if  it  be  a  legal 
one,  when  the  subject  is  finally  brought  to 
its  attention.  Alexandria  C.B.A*  B.  Co.  v. 
District  0/ Columbia,  j  Am.&»  Eng.  B.  Cas. 
335,  I  Mackey  (D.  C.)  317.  —  Reviewing 
r/Keal  V.  Virginia  ft  M.  Bridge  Co.,  18 
Hti.  I. 

Whether  the  tax  which  railroads  pay 
under  N.  J.  Railroad  Taxation  Act  is  appro- 
priated  to  state  purposes  alone,  or  to  state, 
county,  and  municipal  purposes,  is  a  matter 
which  doe'^  not  concern  them.  All  taxes, 
whether  levied  for  state,  county,  or  munici« 
pal  purposes,  are  state  taxes  —  they  can  be 
imposed  by  no  other  authority  than  that  of 
the  state.  The  state  appropriates  the  pro- 
ceeds to  what  purposes  it  sees  fit ;  but  how- 
ever  the  proceeds  may  be  appropriated,  every 
tax  is  a  state  tax.  State  Board  of  Assessors  v. 
Central  B.  Co.,  34  Am.  6*  Eng.  B.  Cas.  $46, 
4&  iV.  /.  L.  146,  4  Atl.  Bep.  578 :  reversing 
48  N./.L.\,i  Atl.  Bep.  789. 

2.  Tnzatioii  dlsttngiilBlied  from 
right  of  eminent  domain.— While  the 
right  to  take  private  property  for  public  use 
is  conditioned  upon  making  compensation, 
the  taxing  power  is  not  thus  limited.  Stew- 
art v.  Polk  County,  30  Iowa  5.  Slack  v. 
Maysville  *•  L.  B.  Co.,  13  B.  Mon.  (Ky.)  1. 

When  private  property  is  taken  under  the 
taxing  power,  the  taxpayer  receives  his  just 
compensation  in  the  protection  which  gov- 


SM 

OR 


b 


'.  n 


880 


TAXATION,  8-5. 


Il 


crnment  aXorda  to  hii  life,  liberty,  and  prop* 
erty.  and  in  the  increased  value  of  liis  pos- 
■euioni  resulting  from  the  use  to  wliich  the 
government  applies  the  money  raised  by  the 
Uz.     Norris  v.  Waco,  57  Ttx,  635. 

3.  The  purpoite  muitt  be  a  public 
one.— The  right  of  taxation  cannot  be  ex* 
ercised  in  aid  of  strictly  private  enterprises, 
sucli  as  manufacturing  enterprises.  CiUum' 
S.  **  L.  Assoc,  v.  Toptka,  20  Wall.  ( U.  S.) 
65$.  —  Appmki)  in  Consolidated  Channel 
Co.  V.  Central  Pac.  R.  Co..  51  Cal.  369. 

The  legislature,  and  not  the  judiciary,  is  to 
determine  what  is  a  public  use  for  purposes 
of  taxation.  TalcoU  v.  Pitu  Crovt  Tp.,  1 
Fhpp.  {U.S.)\20. 

4.  ScoiN)  and  extent  of  the  power.* 
— A  railroad  was  chartered  when  a  general 
law  was  in  force  reserving  to  tlie  state  the 
power  to  amend,  alter,  or  repeal  charters, 
and  amendments  thereto,  unless  the  act 
granting  the  charter  or  amendment  ex- 
cepted  it  from  the  operation  of  the  general 
law.  Subsequently  the  charter  was  amended, 
exempting  the  company's  stock  and  real 
estate  from  taxation  during  the  continuance 
of  the  charter,  but  this  amendment  con- 
tained no  piovision  exempting  it  from  the 
operation  of  the  general  law.  HtU,  that  it 
was  competent  for  the  state  afterwards  to 
amend  its  Constitution  and  laws  so  as  to 
tax  Siiid  stock  and  real  estate.  Tomlinson  v. 
Jtssup,  IS  Wall.  (U.  S.)  4S4.  3  Am.  A>.  X^p. 
301.— Quoted  in  State  v.  Maine  C.  R.  Co.. 
66  Me.  488 ;  People  v.  O'Brien.  36  Am.  & 
Eng.  R.  Cas.  78,  m  N.  Y.  1,  18  N.  E.  Rep. 
69a.  19  N.  V.  S.  R.  173. 

The  fart  that  some  railroads  cannot  be 
constitutionally  taxed  beyond  a  specified 
percentage  upon  their  annual  income  does 
not  hinder  the  legislature  from  taxing  all 
other  companies  ad  valorem  upon  their 
property,  the  former  being  also  taxed  up  to 
the  limit  established  by  their  charters.  At- 
lanta &*  F.  K.  Co  V.  Wr^kl,  87  Ga.  487,  13 
S.  ,E.  Htp.  $71,— Kkvikwed  in  Columbus 
Southern  R.  Co.  v.  Wright.  89  Ga.  574. 

It  is  discretionary  with  the  legislature  to 
determine  whether  corporations  shall  be 
taxed  only  on  their  tangil>le  property,  on 
the  amount  of  their  capital  stock  paid  in, 
on  tlie  amount  of  their  gross  receipts,  or, 
as  under  III.  Act  of  1871,  un  the  value  of 
their  tangible  property  and  on  the  fair  cash 
value  of  their  capital  stock,  including  thrir 

*  Scope  n(  the  jiowrr  In  lax  rsilruads,  see  noir, 
99  Am.  &  Eno.  R.  Cas.  446. 


franchise,  over  and  above  the  asfcned  valae 
of  their  tangible  property,  subject  to  the 
limitation  that  it  shall  be  directed  by  gen- 
eral law,  uniform  as  to  the  class  upon  which 
it  operates.  Porttr  v.  Rotkford,  R.  I.  &*  St, 
L.R,  Co.,  76  ///.  561. —Quoted  in  Pitts- 
burgh. C,  C.  &  St.  L.  R.  Co.  V.  Backus,  54 
Am.  &  Eng.  R.  Cas.  aiy,  133  Ind.  635,  33  N. 
E.  Rep.  433. 

There  is  no  legal  principle  which  pre- 
vents the  state  from  imposing  taxes  accord- 
ing to  the  wants  of  its  treasury,  on  every 
corporation  enjoying  its  franchises  from  the 
government  or  passing  through  the  state, 
unless  restrained  by  some  clear  constitu- 
tional provision ;  and  the  state  has  this 
power  without  regard  to  the  residence  or 
citizenship  of  the  stockholders.  Buffalo 
4*  E.  R.  Co.  V.  Com.,  3  Br/ws.  {Pa.)  386. 

Taxes  can  only  be  levied  upon  such  prop* 
erty  as  the  legislature  shall  prescribe,  and 
then  only  by  a  uniform  rule ;  but  it  is  the 
"rule,"  and  not  the  property,  which  is  re* 
quired  by  the  Constitution  to  be  "  uniform." 
'The  legislature  has  power  to  prescribe  not 
only  the  property  to  be  taxed,  but  the  rule 
by  which  it  must  be  taxed,  and  the  only 
limitation  upon  that  power  is  that  the  rule 
so  prescribed  shall  be  uniform.  The  power 
to  prescribe  what  property  ^^hall  be  taxed 
necessarily  implies  the  powei  to  prescribe 
what  property  shall  be  9xemp:.  Wi'scohsi'h 
C.  R.  Co.  V.  Taylor  County,  1  4m.  &*  Eng. 
R.  Cas.  533,  53  Wis.  17,  %X.  W.Rep.  833.— 
Quoting  Chicago,  B.  Sr  Q.  R.  Co.  v.  Iowa, 
94  U.  S.  1$$  :  Missouri  River,  Ft.  S.  ft  G.  R. 
Co.  V.  Morris,  7  Kan.  310;  Francis  v.  Atch- 
ison, T.  &  S.  F.  R.  Co.,  19  Kan.  303;  Lou- 
isville &  N.  A.  R.  Co.  V.  State  ex  rel.,  3$ 
Ind.  180.— QuoTEO  in  Northern  Pac.  R.Co. 
V.  nnrnes,  3  N.  Dak.  310,  51  N.  W.  Rep.  386 

A.  ItH  liniltH,  tfuiierulijr.— A  state  has 
no  power,  by  taxation  or  otherwise,  to  re- 
tard, impede,  or  in  any  manner  control  the 
operations  of  congress  in  establishing  the 
U.  S.  Bank.  Al'Culloch  v.  Maryland,  4 
Wheat.  (U.  S.)  316.  —  Distinuuished  in 
Central  Pac.  R.  Co.  v.  State  Board  of 
Equalisation.  13  Am.fc  Eng.  R.  Caa.3j6,6o 
Cal.  35;  Com.  V.  liric  R.  Co.,  63  Pa.  St. 
386.  QUALIKIED  IN  Union  Pac.  R.  Co.  v. 
Lincoln  County,  i  Dill.  (U.  S.)  314. 
Quoted  in  People  v.  Central  Pac.  R.  Co.. 
43CUI.  398;  State  1/.  Baltimore  k  O.  R.  Co., 
34  Md.  344. 

The  state  of  Indiana  cannot  tax  that  por- 
tion of  tlie  gross  receipts  of  an  Illinois 


1 


TAXATION,  6-8. 


881 


eorporation  in  iu  treasury  in  lUinoit  which 
was  earned  in  doing  business  in  Indiana. 
The  taxing  power  cannot  be  exercised  on 
persons  and  property  beyond  the  territory 
or  jurisdiction  of  the  state.  Indiana  ex  rtl. 
V.  Pullman  Palact  Car  Co„\i  Am.  &»  Et^. 
K.  Cas.  307,  II  B/u.  (U.  S.)  561.  16  /></. 
ffep.  193. 

O.  Conititutlonal  limitations.*  — 
The  provisions  of  Cal.  Constitution,  art.  13. 
treating  of  revenue  and  taxation  are  not 
conditions  upon  the  continued  existence  of 
railroad  corporations.  San  MaUo  Ctunty  v. 
Southern  Pac.  R.  Co.,  8  Sawy.  (U.  S.)  238. 
13  Fed.  Rep,  733 ;  writ  of  error  dismitudin 
116  U.  S,  138,  6  Sup.  Ct.  Rep.  317. 

The  California  legislature,  March  4,  1864, 
amended  a  former  statute,  relating  to  the 
improvement  and  protection  of  wharfs, 
doclcs,  and  water  (runt  in  the  city  and  county 
of  San  Francisco.  It  was  objected  that  the 
statute  was  invalid  because  it  attempted  to 
exempt  a  portion  of  the  commerce  from  the 
burden  of  the  cost  thereof,  and  was  there* 
fore  in  conflict  with  the  provision  of  the 
state  Constitution  requiring  taxation  to  be 
equal  and  uniform.  Held,  that  while  it  was 
not  competent  for  the  legislature  to  exempt 
a  portion  and  tax  the  remainder,  the  statute 
was  not  open  to  such  construction.  PeopU 
V.  San  Francisco  &*  A.  R.  Co.,  3$  Cal.  606. 

A  constitutional  provision  that  all  prcp- 
erty  subject  to  taxation  is  to  be  tax«;d 
according  to  its  value  does  not  limit  the 
state's  power  of  taxation  to  taxation  of 
property,  and  a  tax  on  railroad  companies 
according  to  their  income  is  valid.  Char- 
lotte, C.  4-  A.  R.  Co.  V.  Gibbet,  31  Am.  *•  Ei^. 
R.  Cat.  464.  37  So.  Car.  385,  4  S.  E.  Rep,  49. 

The  limitation  imposed  by  Texas  Con- 
stitution of  1876  on  the  power  of  counties 
to  levy  taxes  applies  only  to  the  erection  of 
public  buildings.  For  the  purpose  of  pay- 
ing the  interest  and  providing  a  sinking 
fund  to  satisfy  any  indebtedness  existing  at 
the  adoption  of  the  Consti*ution,  counties 
are  authorized  to  levy,  assess,  and  collect 
taxes  to  the  necessary  amount.  Texat  &» 
P.  R.  Co.  V.  Harrison  County,  54  Tex.  119. 

7.  Legialative  roatrictlonfkf  —  The 
charter  of  a  short  railroad  which  was  largely 


*  Limitation  of  taxing  power  of  state,  see  note, 
3  I..  R.  A.  189. 

f  Restrlctioo  of  power  of  taxation  by  legisla- 
tion, .ee  note,  is  Am,  &  Eno.  R.  Cas.  634. 

As  alleclinK  existing  contracts,  see  note.  lA 
Am.  k  Eno.  R.  Cas.  677. 


in  a  city  provided  that  tlie  city  might  impose 
sn  annual  tax  of  |i  on  every  |ioo  of  the  gross 
earnings  of  the  company,  which  should  be  in 
full  and  in  lieu  of  al'  taxation  by  the  city  on 
the  railway,  its  rolUng  stock,  equipment,  and 
Appendages.  Heid,  that  the  city  could  not 
constitutionally  imoose  any  further  taxes. 
MoMe  &»  S.  U.  R.  Co.  v.  Kennn-ly,  74 
Ala.  $66. 

Where  two  railroad  companies  are  con- 
solidated unier  authority  of  a  statute,  so  as 
to  form  a  new  corporation,  such  new  corpo- 
ration becomes  subject  to  the  general  taxing 
power  of  the  legislature,  without  regard  to 
any  limitations  of  the  taxing  power  con- 
tained in  the  charters  of  the  former  compa- 
nies, where  the  new  company  is  created 
without  any  restriction  upon  the  legislature 
to  change,  modify,  or  destroy  its  charter. 
State  V.  Atlantic  &*  G.  R.  Co.,  60  Ga.  268.— 
Distinguishing  Central  R.  &  B.  Co.  v. 
Sute.  $4  Ga.  401. 

The  charter  of  a  city  gave  to  it  the  power 
to  raise  taxes  for  its  own  use  and  benefit, 
provided  the  laws  passed  for  the  purpose 
should  not  be  repugnant  to  the  Constitution 
and  lawsot  the  state  or  of  the  United  States. 
Held,  that  ti  e  proviso  did  not  limit  the  power 
of  the  city  t«->  tax  only  such  subjects  as  were 
taxed  by  the  sute.  Orange  &*  A.  R.  Co.  v. 
Alexandria  City  Council,  fj  Gratt.  ( Va.)  176. 

8.  Judicial  restrictions.*— Mo.  Rev. 
St.  1879.  {  6798,  provides  that  the  county 
courts  are  empowered  to  levy  taxes,  not  to 
exceed  the  consti'.utional  rate,  for  state  pur- 
poses, including  i  is  funded  and  bonded  debt 
and  the  tax  for  current  county  expenditures 
and  for  schools.  Section  6799  provides  that 
no  otiier  tax  for  any  purpose  sliall  be  as- 
sessed and  levied  except  upon  the  consent 
of  the  circuit  court,  upon  petition  filed  for 
that  purpose.  Held,  that  a  county  court 
had  no  power  to  levy  a  tax  to  pay  interest 
on  railroad  aid  bonds  without  the  consent  of 
the  circuit  court.  State  ex  rel.  v.  Hannibal 
*•  St,  J,  R.  Co,,  87  Mo,  336.  State  ex  rel.  v. 
Missouri  Pac,  R.  Co,,  92  Mo,  137.  State  ex 
rel.  V.  Wabash,  St,  L,  &*  P.  R.  Co.,  97  Mo, 
296,  10  S.  W.  Rep.  434.— Quoted  in  State 
ex  lel.  V.  Hannibal  &  St.  J.  R.  Co.,  113 
Mo.  397. 

But  the  above  decisions  seem  to  be  in 
conflict  with  the  decisions  (if  the  supreme 
court  of  the  United  States.    That  court  has 


«<l 


*  ludicl.-il  restrlrtion  of  taxing  power,  see  note, 
IS  Am.  &  Eng.  R.  Cas.  63$. 


888 


TAXATION,  O-ll. 


11  > 

,•  '■ 

, 

held  that  when  a  debt  of  a  municipality  has 
been  conclusively  estalWislied  its  |>uyinent  is 
not  restricted  to  any  species  of  property  or 
revenues,  nor  subject  to  any  conditiuna. 
UntUd  Statu  V.  ATtw  Orltans,  98  U.  S.  381. 
Wolff  V.  Ntw  Orleans,  13  Am.  &*  Eng.  JR. 
Cas.  625,  103  U.  S.  358. 

And  where  a  remedy  by  taxation  exists 
by  statute  when  the  indebtedness  is  created, 
it  cannot  be  taken  away  by  a  subsequent 
judicial  construction  o(  the  statute ;  and 
the  federal  court  in  construing  the  statute 
will  refuse  to  follow  state  decisions  which 
have  the  effect  of  impairing  contracts.  liuis 
V.  Muscatine.  8  Wall.  {U.S.)  575. 

9.  Surrender  of  the  power  to  tax. 
—The  taxing  power  of  the  state,  being  of 
vital  importance  and  an  essential  attribute  of 
sovereignty,  is  never  presumed  to  be  relin- 
quished, unless  an  intention  to  relinq  lish  it 
is  expressed  in  clear  and  unambiguous  terms. 
Louisville,  C.  &*  L.  R.  Co.  v.  Com.,  10  Bush 
(A>.)  43. 

Where  a  statute  provides  that  street  rail- 
ways shall  be  constructed  only  with  the  con- 
sent of  the  municipal  authorities  "  and  upon 
iuch  terms  and  conditions  as  said  authori- 
ties may  from  time  to  time  prescribe,"  and 
municipal  authorities  enter  into  a  contract 
with  a  company  agreeing  to  accept  a  per- 
centage of  its  gross  receipts  in  lieu  of  all 
city  taxes,  except  a  land  tax,  the  city  is 
bound  thereby  and  cannot  collect  an  addi- 
tional tax  on  the  company's  personal  prop- 
erty, especially  where  the  tax  paid  is  more 
than  the  regular  assessment.  Detroit  v. 
Detroit  City  R.  Co.,  39  Am.  &*  Eng.  R.  Cas. 
538,  76  Mich.  4a I.  43  N'  W.  ^*P-  447- 

A  Pennsylvania  statute  authorized  a  New 
York  company  to  build  its  road  through 
the  former  state,  provided  that  the  com- 
pany should  pay  annually  the  sum  of  |io,ooo, 
and  subjected  the  stock  of  the  company, 
equal  to  the  cost  of  construction  of  that 
part  of  the  road,  to  a  tax  as  other  similar 
property.  Held,  not  a  surrender  of  the  right 
to  impose  a  tax  on  tonnage.  Erie  R.  Co.  v. 
Com.,  66  Pa.  St.  84.— Reconciling  New 
York  &  E.  R.  Co.  v.  Sabin,  26  Pa.  St.  242 ; 
Gordon  v.  Appeal  Tax  Court,  3  How.  (U.  S.) 
133.  — Distinguished  in  Erie  R.  Co.  v. 
Pennsylvania,  3i  Wall.  (U.  S.)493. 

The  fact  that  a  railroad  company  is  bound 
by  its  charter  to  pay  into  the  state  treasury 
a  certain  sum  annually  does  not  imply  the 
surrender,  on  the  part  of  the  state,  of  the 
power  to  tax  it  by  a  general  law  applicable 


to  all  corporations.    Eri*  R.  Co.  v.  Com.,  } 
Brews.  (Pa.)  jibi. 

10.  Power  to  iucreotie  tuxes.— The 
mere  imposition  of  taxes  upon  the  propei  ty 
of  a  corporation,  at  the  time  a  charter  is 
granted  or  afterwards,  will  not  authorize 
the  assumption  that  the  legislature  hus 
contracted  that  no  additional  taxation  shall 
be  imposed  either  on  the  property  owned  by 
tlie  corporation  at  the  time  of  the  grant  or 
upon  tiiat  afterwards  acquired.  Louisville, 
C.  &*L.  R.  Co.  v.  Com.,  10  Bush  (A>.)  43. 

The  legislature  may  repeal  a  temporary 
rate  of  taxation  and  impose  another  and 
higher  rate  or  additional  taxes,  by  virtue  of 
the  state  sovereignty  over  the  whole  sub- 
ject of  taxation,  unl<;ss  there  has  been  some 
express  contract  in  limitation  of  the  power 
upon  a  consirieration  deemed  to  be  a  part  of 
the  value  of  the  grant  of  a  charter.  St, 
Joseph  V.  Hannibal  &»  St.  J.  R.  Co.,  39 
Mo.  476. 

Th'j  charter  of  a  railway  provided  that 
any  municipality  through  which  the  road 
might  pass  might  by  ty-law  exempt  the 
company  and  its  property  from  taxation,  in 
whole  or  in  part.  Under  this  authority  a 
township  passed  a  by-law  that  the  real  prop- 
erty of  the  company  in  the  township  be 
rated  at  twelve  dollars  per  acre,  which  rating 
should  not  be  increased  for  fifty  years. 
Held,  in  the  absence  of  anything  to  show 
that  the  company  had  altered  its  position, 
or  done  anything  that  it  would  not  other* 
wise  have  done,  that  the  township  could 
repeal  the  by-law  at  any  time.  In  re  Great 
Western  R.  Co.,  23  U.  C.  C.  P.  28. 

11.  Delegation  of  the  power,  gen- 
erally.—Georgia  Act  of  February  28.  1874 
(Laws  of  1874,  p.  107),  which  requires  rail- 
road companies  to  return  the  value  of  their 
property  to  the  comptroller-general,  to  b« 
taxed  as  the  property  of  other  citizens, 
gives  no  authority  to  local  or  municipal 
bodies  to  tax  the  property  of  such  com« 
pa.iies.  Savannah  v.  Atlantic  &*  G.  R.  C», 
3  Woods  (U.  S.)Mi. 

Georgia  Constitution  of  1877,  which  abol- 
ishes all  laws  exempting  property  from  taxa- 
tion does  not  thereby  impose  any  tax.  Until 
the  legislature  authorizes  a  tax  none  can  be 
collected,  and  then  only  the  particular  tax 
authorized.  Savannah  v.  Atlantic  A*  G.  R. 
Co.,i  Woods  (U.  5.)  432. 

Iowa  Revision,  {  3275.  confers  no  inde- 
pendent power  of  taxation,  and  does  not 
require  municipal  corporations  to  levy  a 


TAXATION,  12. 


888 


judgment  tax  in  ezceu  of  the  maximum 
rate  of  taxation  established  by  statute. 
(Cole,  J.,  dissenting.)  lawa  R.  Land  Co.  v. 
Sac  County,  39  Iowa  124,  9  Am.  Ry.  Rtp.  46. 
— FoLLOWiNO  Iowa  R.  Land  Co.  v.  Soper, 
39  Iowa  1 1 3. 

The  power  of  taxation  is  conferred  by  the 
legislature,  and  when  the  method  of  taxa- 
tion is  also  prescribed,  that  must  be  pur- 
sued. Icwa  R,  Land  Co.  v.  Sac  County,  39 
Iowa  124,  9  Am.  Ry.  Rtp.  46. 

12. to  counties.  —  (I)  In  gentral. 

Ala.  Act  approved  February  9,  1870,  which 
attempted  to  relieve  railroad  corporations 
from  county  taxes,  having  been  held 
unconstitutional  (Perry  County  v.  R.  R. 
Co.,  $8  Ala.  1^6),  their  liability  for  such 
taxes  during  the  years  1869  to  1875,  while 
tlmt  statuiie  was  supposed  to  be  in  force, 
necessarily  follows,  if  proper  proceedings 
were  had  by  the  officers  to  whom  the  du- 
ties were  by  law  confided  to  ascertain  and 
fix  the  amount  of  their  respective  liabili- 
ties. Perry  County  v.  Stlma,  At.  &•  M.  R. 
Co.,  7  Atn.  &*  Et^.  R.  Cat.  298, 65  Ala.  391. 
—Approved  in  State  ex  rel.  v.  Hannibal 
&  St.  J.  R.  Co..  113  Mo.  297. 

The  special  legislation  of  Georgia  as  to 
the  taxation  of  railroads  virtually  excludes 
counties  and  municipal  corporations  from 
levying  a  tax  for  county  and  municipal  pur- 
poses upon  them  and  the  appurtenances 
necessary  to  maintain  and  operate  them, 
by  making  no  provision  for  levying  and  col- 
lecting such  tax.  Houston  County  v.  Cen- 
tral  R.  Co.,  72  Ca.  211,— FoLLOWiNO  Al- 
bany V.  Savannah,  F.  &  W.  R.  Co.,  71  Ga. 
1 58.— Followed  in  Atlanta  v.  Georgia  Pac. 
R.  Co.,  74  Ga.  16. 

(2)  Jn  Ktntucky. — Tlie  law  treats  a  rail- 
road  and  all  its  appurtenances  as  one  entire 
thing,  not  legally  subject  to  coercive  sever- 
ance or  dislocation.  In  that  consolidated 
character  it  must  be  taxed  for  state  reve- 
nue, and  cannot  be  a  fit  subject  for  local 
taxation  by  separate  counties  through  which 
it  passes.  Apptegat*  v.  Ernst,  3  Biish  {Ky.) 
648.— Distinguished  in  Ludlow  v.  Cin- 
cinnati Southern  R.  Co.,  7  Am.  &  Eng.  R. 
Cas.  231,  78  Ky.  357,  Louisville  &  N.  R.  Co. 
V.  Hopkins  County,  37  Am.  &  Eng  R. 
Cas.  400, 87  Ky.  605, 9  S.  W.  Rep.  497.  FoL- 
LOWBD  IN  Louisville  &  N.  R.  Co.  v.  Warren 
County  Court,  5  Bush  243.  Quoted  and 
FOLLOWED  IN  Graham  v.  Mt.  Sterling  Coal- 
road  Co.,  14  Bush  435.  Reviewed  and 
CMTiciSED  in  Franklin  County  Court  v. 
7  D.  K.  D.-53 


Louisville  &  N.  R.  Co.,  35  Am.  ft  Eng.  R. 
Cas.  535,  84  Ky.  59. 

Since  the  passage  of  Ky.  Act  of  March 
17, 1876,  "  to  make  taxation  equal  and  uni* 
form,"  there  can  be  no  question  as  to  the 
liability  of  railroads  for  county  taxes.  Louit 
vilU  &»  N.  R.  Co.  v.  Cori.,  85  Ky.  i^,  ^  S. 
W.  Rip.  139. 

Under  the  law,  as  construed  prior  to  Ky. 
Act  of  March  17,  1876,  expressly  subjecting 
railroads  to  local  taxation,  railroads  were 
not  subject  to  taxation  by  counties  unless 
expressly  authorized  by  statute.  There- 
fore, neither  an  act  passed  in  1865.  author- 
izing a  tax  to  be  levied  on  all  property  of 
Marion  county  "  liable  to  taxation  for  state 
revenue,"  nor  an  act  passed  in  1869,  author* 
izing  a  tax  to  be  levied  on  the  taxable  prop- 
erty in  said  county  "  listed  and  laxed  under 
the  revenue  laws  of  this  state,"  authoriz«is 
the  taxation  of  a  road  by  the  county  for  the 
years  1866  to  1875,  a^  the  railroads  of  the 
state,  at  the  time  of  the  passage  of  those 
acts,  were  not  taxed  under  the  general  reve* 
nue  laws  of  the  state,  but  were  laxed  spc> 
cifically  upon  a  certain  value  per  mile. 
Com.  v.  LouixvilU  6*  N.  R.  Co.,  37  Am.  S» 
Eng.  R.  Cas.  41 8, 89  A>.  1 34, 9  S.  W.  Rtp.  805. 

(3)  In  Virginia. — The  Constitution  of 
Virginia  does  not  authorize  county  authori- 
ties to  assess  property  for  taxation  and  levy 
taxes  upon  it  independently  of  the  action  of 
the  legislature.  They  can  only  levy  a  tax 
upon  such  property  as  by  law  is  assessed 
with  state  taxes  in  the  county ;  nor  can  they 
levy  a  tax  on  the  real  estate  of  railroads  in 
the  county,  either  for  county,  township, 
school,  or  road  pu  rposes.  Virginia  &*  T.  R. 
Co.  V.  Washington  County,  30  Gratt.  ( Va.) 
471.— Quoting  Missouri  River,  Ft.  S.  &  G. 
R.  Co.  V.  Morris,  7  Kan.  210.  Reviewed 
IN  Baltimore  &  O.R.  Co.  v.  Koontz,  77  Va. 
(tqZ.—Baltimort  &•  0.  R.  Co.  v.  Koontn,  TJ 
Va.  698.— Reviewing  Virginia  &  T.  R.  Co. 
V.  Washington  County,  30  Gratt.  471. 

By  Va.  Act  of  1879-80,  ch.  106,  S  >.  the 
legislature  for  the  first  time  empowered  the 
supervisors  to  levy  a  tax  on  the  real  estate 
of  railroad  companies  whose  roads  past 
through  their  county,  prescribing  that  such 
tax  should  be  equal  to  the  tax  imposed 
upon  other  property  for  county  and  school 
purposes,  and  based  upon  the  assessment 
per  mile  of  the  same  property  made  by  the 
state  for  its  purposes.  Baltimort  &»  O.  R.  Co. 
V.  Koonti,  77  Va.  698.  Sktnandoah  VtUlty 
R.  Co.  V.  Clarkt  County  Sufn,  78  Va.  369. 


3 


M 


T 


ts:M 


m 


1 1; 


884 


TAXATION,  13. 


County  authoritiei  are  not  authorised  by 
the  Constitution  of  Virginia,  independently 
of  the  action  of  the  legislature,  to  assess  rail- 
road or  other  property  for  taxation  and 
county  levies.  SheHandoah  Vatlty  R.  Co.  v. 
Clarkt  County  Sup'rt,  78  Va.  369. 

Va.  Ac;  j!  February  37, 1880,  took  effect 
from  its  passage,  and  empowered  the  board 
of  supervisors  of  a  county  to  levy  on  a  raiU 
road  a  tax  for  the  tax  year  beginning  on  the 
fourth  Monday  in  July  of  that  year.  Prince 
Gtorgt  County  v.  Atlantic,  At.  &»  0.  Ji.  Co., 
87  Va.  383,  i2S.£.  Rtp.  667. 

County  supervisors  are  authorized  to  levy 
a  tax  on  railroad  property  in  tlieir  county 
at  any  time  after  the  passage  of  Va.  Act  of 
February  27,  1880,  based  on  tlie  state  assess* 
ment  made  previous  to  that  act ;  and  where 
the  levy  recites  that  fact,  it  will  be  pre- 
lumed  legal.  Norfolk  &*  W.  H.  Co.  v.  Smyth 
County,  87  Va.  521,  I3  S.  E.  Jitfi.  1009. 

Where,  during  a  foreclosure  suit,  such 
tax  is  paid  and  its  payment  is  approved  by 
the  court,  purchasers  of  the  railroad  who 
were  parties  to  the  suit  cannot  recover  the 
uz  as  illegally  levied.  Norfolk  &*  W.  R. 
r  Co.  V.  Smyth  County,  87  Va.  531,  12  S.  £. 
R«p.  1009. 

13. to  cities.— (I)  In  general.— III. 

Const,  art.  9,  S  >•  authorizing  the  general 
usembly  to  tax  persons  or  corporations 
owning  or  using  franchises,  does  not 
exclude  ail  other  taxes,  and  the  general 
assembly  may  authorize  municipalities  to 
tax  such  persons  or  corporations.  Nuck  v. 
Chicago  &»  A.  R.  Co.,  86  ///.  352,  17  Am.  Ry. 
Rep.  419.— Followed  in  Hopkins  v.  Tay- 
lor, 87  111.  436. 

Taxation  by  a  local  corporation  for  a 
local  purpose,  and  tending  to  promote  local 
prosperity,  is  within  the  scope  of  the  corpor- 
ate  powers  of  cities,  when  sanctioned  by  the 
legislative  authority,  though  not  consented 
to  by  ea^h  individual  to  be  affected  thereby, 
as  the  will  of  the  majority  is  to  govern 
when  the  matter  is  referred  to  the  decision 
of  those  to  be  aficcted.  Talbot  v.  Dent,  9 
B.  Man.  (A>.)  526. 

A  city  may  be  constituted  a  taxing  dis- 
trict and  as  such  authorized  to  impose  a  tax 
upon  property  in  the  district  for  local  pur- 
poses,  such  as  for  schools  and  railroads, 
although  the  same  property  may  not  be  sub- 
ject to  taxation  for  ordinary  city  purposes, 
for  the  reason  that  it  derives  no  benefit 
actual  or  presumed,  from  the  city  govern- 
ncnt ;  and  it  is  not  essential  to  the  validity 


of  such  a  tax  by  the  city  as  a  taxing  district 
that  a  particular  piece  of  property  sought 
to  be  taxed  should  derive  a  benefit  from 
the  improvement  or  enterprise  for  which  the 
tax  is  imposed.  Henderson  Bridge  Co.  v. 
Henderson,  90  Ky.  498,  \\  S.  W.  Rep.  493. 
—Reviewing  McFerran  v,  Alloway,  14 
Bush.  (Ky.)  s8i. 

Where  a  municipal  corporation  has.  in 
the  due  exercise  of  a  power  conferred  upon 
it  by  the  legislature,  assessed  and  levied  a 
tax  upon  certain  property  within  its  limits, 
the  legislature  may,  by  an  act  retrospective 
in  its  terms,  and  which  takes  effect  before 
such  tax  becomes  due,  annul  the  assessment 
so  made,  and  vest  in  another  body  the 
power  to  make  the  assessment  for  that  year. 
State  ex  rel.  v.  St.  Louis,  K.  C.  6-  N.  R.  Co., 
79  Mo.  420;  affirming  9  Mo.  Apf.  533. 

Every  grant  of  the  power  of  taxation  to  a 
municipal  or  other  subordinate  body  mur^ 
be  strictly  construed.  And  municipal  offi- 
cers must  show,  in  the  words  of  the  charter, 
a  warrant  for  whatsoever  authority  they 
assume  to  exercise.  Lynchburg  v.  Norfolk 
&»  W.  R.  Co.,  80  Va.  337. 

Where  the  charter  of  a  city  limited  its 
right  to  impose  taxes  upon  all  property 
within  the  city  to  that  "  taxable  for  terri- 
torial and  county  purposes,"  the  city  had  no 
right  to  impose  taxes  upon  a  railroad  whose 
property  was  exempted  by  territorial  law. 
Columbia  i^  P.  S.  R.  Co.  v.  Chilberg,  6 
Wash.  613,  34  Pac.  Rep.  163. 

(3)  In  Georgia.  —  A  provision  in  a 
Georgia  statute  that  the  property  of  rail- 
road corporations  shall  "  be  taxed  as  other 
property  of  the  people  of  the  state,"  and 
providing  a  method  for  the  collection  of 
state  taxes,  does  not  authorize  municipal 
taxation  of  such  property.  (Miller,  J.,  dis- 
senting.) Savannah  v.  Jesup,  9  Am.  &• 
Eng.  K.  Cas.  573,  106  U.  S.  563,  1  Sup.  Ct. 
Rep.sii. 

A  municip<il  corporation  cannot  exercise 
any  power  not  granted  by  the  legislature, 
nor  can  it  exercise  the  power  which  the 
state  has  reserved  to  itself.  So  where  the 
legislature  has  expressly  provided  a  method 
of  taxing  railroad  property  by  the  state, 
but  has  provided  no  ucthod  ty  which  mu- 
nicipal corporations  niuy  tux  such  prop- 
erty, such  power  does  not  exist.  Albany  v. 
Savannah,  F.  *•  W.  R,  Co.,  71  iJa.  Ij8.— 
Followed  in  Houston  County  v.  Central 
R.  Co.,  73  Ga.  211 :  Atlanu  v.  Georgia  Pac. 
R.  Co.,  74  Ga.  16. 


TAXATK)N,  14-16. 


885 


The  property  of  railroad  companies  in 
Georgia,  used  in  carrying  on  their  usual  and 
ordinary  business,  is  not  subject  to  munic- 
ipal taxation,  nor  liable  to  be  sold  for  non- 
payment of  such  a  tax.  Atlanta  v.  Gtcrgia 
Pac.  R.  Co.,7A  Ga.  i6.— Following  Albany 
V.  Savannah.  F.  &  W.  R.  Co..  71  Ga.  158; 
Houston  County  v.  Central  R.  Co.,  72  Ga. 
211  ;  Savannah,  F.  &  W.  R.  Co.  v.  Morton, 
71  Ga.  2^.— Augusta  City  Council  v.  Ctntrat 
R.  Co.,  78  Ga.  119. 

(3)  In  /awa.—The  city  of  Davenport  has 
no  power  under  its  charter,  art.  5,  |  i,  to 
levy  taxes  for  municipal  purposes  upon  rail- 
road rolling  stoclc.  when  the  company  has 
its  principal  place  of  business  and  a  portion 
of  its  road  within  the  corporate  limits  of 
said  city,  such  rolling  stock  being  used  uy 
the  corporation  along  the  line  of  tlie  road 
beyond  as  well  as  within  the  city.  Daven- 
port  v.  Mississippi &»  M.  R.  Co.,  16  Imta  348. 
—Disapproved  in  Dubuque  v.  Illinois  C. 
R.  Co.,  39  Iowa  56.  Followed  in  Dubuque 
&  S.  C.  R.  Co.  V.  Dubuque,  17  Iowa  120; 
Dunlieth  &  D.  Bridge  Co.  v.  Dubuque,  32 
Iowa  427.  Reviewed  in  Iowa  Homestead 
Co.  V.  Webster  County,  21  Iowa  221.— Z>«- 
buqut  &<*  S.  C.  R,  Co.  V.  Dubuqut,  17  Iowa 
120.— Following  Davenport  v.  Mississippi 
&  M.  R.  Co..  16  Iowa  348. 

The  supreme  court  being  equally  di- 
vided upon  the  question  as  to  the  power  of 
a  city  to  levy  taxes  upon  the  real  property 
of  a  railroad  corporation  situated  within  its 
limits,  the  judgment  of  the  court  below 
stands  affirmed  by  operation  of  law.  Davon- 
port  V.  Mississippi  A*  M.  R.  Co.,  16  Iowa 
348.  Dubuquo  &*  S.  C.  li.  Co.  v.  Dubuqut,  17 
Jowa  no. 

The  property  of  railroad  companies  is  not 
exempt  from  taxation  by  cities,  under 
cliapter  196,  acts  of  the  twelfth  general 
assembly,  providing  for  a  tax  of  one  ptr 
centum  on  the  gross  earnings  of  all  rail- 
roads "  in  lieu  of  all  taxes."  Said  act  is 
confined  in  its  operation  to  state  and  county 
taxes.  (Cole,  J.,  dissenting.)  Dunlieth  &* 
D.  Brii^o  Co.  v.  Dubuque,  32  Iowa  437. 
—Followed  in  Davenport  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  38  Iowa  633;  Dubuque  v. 
Illinois  C.  R.Co.,  39  Iowa  $6;  Iowa  R.  Land 
Co.  V.  Woodbury,  39  Iowa  172. 

The  property  of  railroads  is  subject  to 
taxation,  and  a  municipal  corporation,  au- 
thorized by  its  charter  to  levy  and  collect 
taxes  upon  "  all  taxable  property  within  its 
limits,"  may  levy  and  collect  a  tax  upon 


property  belonging  to  railroads  the  same  as 
other  property.  Dunlieth  &*  D.  Bridge  Co.  v. 
Dubuque.  32  Iowa  427.— Following  Daven- 
port V.  Mississippi  &  M.  R.  Co.,  16  Iowa 348. 

14.  Sinkiug-f^nd  tuxog.— A  sinldng- 
fund  tax  is  a  tax  raised  to  be  applied  tu  the 
payment  of  the  interest  and  principal  of  a 
public  loan,  and  it  cannot,  under  the  statute, 
be  levied  for  the  payment  of  floating  in- 
debtedness. Union  Pac.  R.  Co.  v.  Vorh 
County,  10  JVeb.  613,  7  N.  IV.  Rep.  270.— 
Following  Union  Pac.  R.  Co.  v.  Buffalo 
County  Com'rs,  9  Neb.  449. 

County  commissioners  have  no  authority 
to  divert  a  sinlcing-fund  tax  from  the  pur- 
pose for  which  It  was  raised  and  transfer  it 
to  the  general  fund.  Union  Pac.  R.  Co.  v. 
Dawson  County,  12  Neb.  254,  11  JV,  IV,  Rep. 
307.— Followed  in  Burlington  &  M.  R.  R. 
Co.  V.  Clay  County,  13  Neb.  367. 

Neb.  Act  of  1875  merely  authorizes  the 
transfer  to  the  general  fund  of  the  surplus 
sinlcing  fund,  after  tiie  debt  for  which  it  was 
levied  is  extinguished.  Union  Pac,  R.  Co. 
v.  Dawson  County,  I3  Neb.  254.  11  N.  fV. 
Rep.  307. 

15.  Litigation  taxes.  —  An  action 
against  an  express  company  for  failure  to 
deliver  goods  according  to  contract,  where 
both  the  contract  and  failure  to  deliver  oc- 
curred before  June,  1865,  is  taxable  under 
Ga.  Act  of  Oct.  13,  1870.  and  if  the  affidavit 
required  by  the  first  section  is  not  filed  the 
action  will  be  properly  dismissed.  Alexan- 
der V.  Southern  Exp.  Co.,  4$  Ga.  34. 

The  taxing  power  vested  in  the  legisla- 
ture is  without  limit,  except  such  as  may  be 
prescribed  by  the  Constitution  itself;  conse- 
quently the  imposition  of  a  tax  upon  parties 
commencing  suits  in  the  supreme  court  is 
not  in  violation  of  the  Constitution,  provid- 
ing that  the  mode  of  levying  taxes  shall 
be  by  valuation,  and  giving  to  the  legis- 
lature power  to  tax  certain  specified  busi- 
ness classes,  among  which  litigants  are 
nc*  enumerated.  Statt  ex  rel.  v.  Lancaster 
County  Com'rs,  4  Neb.  537. 

10.  Curative  acts.  —  County  commis- 
sioners, in  levying  taxes  for  a  certain  year, 
levied  to  their  full  limit  a  tax  for  current 
expenses,  and  then  levied  another  tax  to 
meet  a  deficit  in  the  county  tevenue  of  the 
preceding  year.  A  railroad  company  ob- 
jected to  the  payment  of  the  additional  tax 
on  its  property.  Held,  that  such  additional 
tax  was  illegal  and  void.  Atchison,  T,  #• 
S.  F.  R.  C9.  V.  Woodcock,  18  Kan.  aa 


■J-! 


%  '&\ 


TAXATION,  17-20. 


|i? 


The  state  G>natUution  provides  that  no 
tax  sliall  be  levied  except  in  pursuance  of  a 
law  which  shall  distinctly  state  iu  object. 
After  the  above  tax  was  levied  the  legisla- 
ture passed  un  act  entitled  "  An  act  to  legal- 
ize a  certain  levy  of  tuxes,"  but  according 
to  the  body  of  the  act  it  attempted  to  legal- 
ize all  taxes  made  by  the  commissioners  of 
such  county  for  a  certain  year.  Held,  that 
the  statute  did  not  have  the  effect  of  curing 
or  validating  such  illegal  levy.  Atchison,  T. 
d»  S.  F.  R.  Co.  V.  Woodcock,  l8  Kan.  20. 

n.  OOVITITVTIOHALITT  OF  ITATVTIS.* 

17*  United  States  courts.  — A  state 
law  taxing  stock  issued  for  loans  made  to 
the  United  States  is  unconstitutional.  IVa- 
tOH  V.  CharUstoH,  2  P*t.  (U.  S.)  449.— DIS- 
TINGUISHED m  Com.  V.  Erie  R.  Co..  62  P«. 
St.  386. 

A  law  which  designates  all  railroads  as  a 
class  for  the  purposes  of  taxation,  and  im- 
poses a  tax  on  all  alike,  giving  to  all  the 
same  right  to  resist  the  collection  of  the 
tax,  does  not  deny  the  "equal  protection  of 
the  law,"  within  the  meaning  of  the  United 
States  Constitution,  because  the  means  em- 
ployed may  be  different  from  those  in  taxing 
other  species  of  property.  CiHcinnati,  N.  O. 
&•  T.  P.  R.  Co.  V.  Ktntucky,  33  Am.  &»  Eng. 
F.  Cas.  33$.  11$  {/.  5.  331. 6  Su^.  Ct.  Rep.  57. 

Where  a  railroad  is  not  taxable  under  its 
charter,  a  law  imposing  a  tax.  in  case  it  be 
■old  or  leased  to  a  corporation  of  another 
state,  does  not  impair  the  obligation  of  a 
contract  within  the  meaning  of  the  U.  S. 
Constitution.  Chicago.  B.  &*  K.  C.  R.  Co.  v. 
Guffey,  132  U.  S.  $61,  7  Sufi.  Ct.  Rep.  1300. 

As  to  the  right  of  a  state  to  authorize 
what  is  called  a  "  privilege  tax  "  on  sleeping 
cars  that  are  run  through  the  state,  see 
Gibson  County  v,  Pullman  Southern  Car  Co., 
43  Fed.  Rep.  $73.— Following  Pullman 
Southern  Car  Co.  v.  Gaines.  3  Tenn.  Ch.  $87 : 
Robbins  v.  Taxing  Dist.,  13  Lea  (Tenn.) 
309.  Not  following  Pullman  Palace  Car 
Co.  V.  State,  64  Tex.  874. 

18.  Alabama.  —  The  law  of  1870  en- 
titled "  An  act  to  amend  an  act  entitled 

*  Constilutlonat  guaranty  of  equal  rights  as 
applied  to  the  law  of  taxation,  see  note,  8  Am.  & 
Eno.  R.  Cas.  56. 

Equality  and  uniformity  in  taxation  of  corpo- 
rations, see  notes,  13  Am.  ft  Eng.  R.  Cas.  393; 
8  Id.  57. 

fMscrlmioating  tax  against  foreign  corpora- 
tions,  stc  nott,  13  Am.  ft  Eno.  R.  Cas.  31a. 


'  An  act  to  establish  revenue  laws  for  the 
state  of  Alabama' "  is  not  violative  of  any 
constitutional  provision.  It  does  not  in- 
vade the  executive  powers  in  remitting 
penalties  already  incurred  in  the  non-pay- 
ment of  taxes  for  the  year  1869;  it  does 
not  exempt  the  property  of  railroads  from 
taxation ;  it  does  not  impair  any  vested 
right ;  it  relates  to  but  one  subject,  and  that 
is  sufficiently  set  forth  in  the  title.  Mobile 
&*  G,  R.  Co.  V.  Peebles,  47  Ala.  317. 

The  Alabama  Constitution  provides  that 
all  taxes  levied  on  property  in  the  state 
"shall  be  assessed  in  exact  proportion  to 
the  value  of  such  property,"  and  that  "  the 
property  of  private  corporations,  associa- 
tions, and  individuals  of  this  state  shall  for- 
ever be  taxed  at  the  same  rate."  The  Code 
of  1876.  §  383,  provides  that  railroad  property 
shall  be  estimated  at  a  sum  not  less  than 
that  which,  at  interest  of  eight  per  cent., 
would  yield  the  sum  shown  by  the  data  be- 
fore the  board  of  assessment  to  consist  of 
the  whole  earnings,  deducting  the  running 
expenses  of  the  road.  Held,  that  it  was 
not  competent  for  the  legislature  thus  to 
attempt  to  fix  an  artificial  value  upon  rail- 
road property.  Assessment  Board  v.  Ala- 
bama C.  R.  Co.,  S9  Ala.  $$!. 

ID.  ArlBoua.  —  Taxation  of  a  railroad 
franchise  granted  by  congress  is  not  in  con- 
flict with  that  provision  of  the  federal  Con- 
stitution which  grants  to  congress  the  right 
to  control  commerce  among  the  states. 
Atlantic  &*  P.  R.  Co.  v.  Lesueur,  (Arii.) 
37  Am.  6*  Eng,  R.  Cas.  368,  tgPac.  Rep.  1 57. 

Nor  is  the  taxation  by  a  territf'ry  of  such 
franchise  unconstitutional,  as  the  taxation 
of  a  federal  agency,  in  the  absence  of  such 
restriction  in  the  grant  of  the  taxing  power 
to  the  territory,  as  congress  may  permit  the 
territory  to  do  so.  Atlantic  6-»  P.  R.  Ct  v, 
Lesueur,  (Ariz.)  37  Am.  &*  Eng.  R.  Cas.  ^58, 
ig  Pac.  Rep.  i$7. 

20.  Arkansas.  — Arkansas  statute  of 
March  31,  1883,  §  46,  which  directs  the 
board  of  railroad  commissioners  not  to  in- 
clude the  embankments,  tunnels,  cuts,  tics, 
trestles,  >^'  bridges  of  railroads  in  the 
schedule  of  the  property  of  railroad  com- 
panies prepared  by  them  for  the  purpose 
of  assessment  of  taxes,  is  in  conflict  witli 
the  state  Constitution  of  1874,  relating  to 
the  assessment  and  taxation  of  property 
within  the  state.  Huntington  v.  Worihen, 
39  Am.  &»  Eng.  R.  Cas.  330,  1 30  U.  S.  97,  7 
Sup.  Ct,  Rep.  469.— Followed  on  .mt- 


■™»^ 


TAXATION,  21,  29. 


887 


rtRBNT  GROUNDS  IN  St.  Louis,  I.  M.  ft  S. 
R.  Co.  V.  Wortlicn.  41  Am.  A  Eng.  R.  Cas. 
S89.  52  Ark.  529. 

So  much  of  Mansfield's  Ark.  Dig.,  |  5649, 
a!i  excludes  "embankments,  tunnels,  cuts, 
ties,  trestles,  or  bridges"  from  assessment 
by  the  stnte  railroad  commissioners  is  un- 
constitutional. LiWt  Jioek  ^  Ft.  S.  R.  Co. 
V.  WttrihtH,  46  Ark.  312.— Followed  on 

DIFFERENT  GROUNDS  IN  St.  Louis,  I.  M.  & 

S.  R.  Co.  V.  V/orthen,  41  Am.  &  Eng.  R. 
Cas.  589,  52  Ark.  529. 

Under  Ark.  Const,  art.  16,  §  5,  which 
provides  that  the  vnlue  of  property  for 
taxation  shall  be  ascertained  in  such  man- 
ner as  the  general  assembly  shall  direct, 
making  the  same  equal  and  uniform,  the 
legislature  has  Hie  {tower  to  classify  prop- 
erty for  the  purposes  of  taxation,  and  to 
provide  for  the  valuation  of  different  classes 
by  different  metliods.  Such  classification 
under  a  statute  which  operates  equally  and 
uniformly  upon  all  property  of  its  kind  or 
class  is  not  prohibited  by  the  federal  Con- 
stitution. St.  Louis,  I.  M.  &*  S.  Jt.  Co.  V. 
Worthen,  41  Am.  &*  Eng.  /t.  Cas.  589,  52 
Ark.  529,  13  .S.  W.  Kip.  2S4. 

Separate  classification  of  railway  property 
for  taxation,  and  its  assessment  by  an  in- 
strumentality different  from  that  employed 
in  the  valuation  of  other  property,  are  justi- 
fied by  its  peculiar  nature  and  uses.  St. 
Louis,  I.  At.  *•  S.  R.  Co.  v.  Worthen,  41 
Am.  &*  Eng.  R.  Cas.  $89,  $2  Ark.  $29,  13 
S.  W.  Rep.  254. 

Ark.  Revenue  Act  of  1883  is  not  uncon- 
stitutional on  the  ground  that  it  requires 
the  tracks  and  rolling  stock  of  railways  to 
be  assessed  by  the  state  board  of  com- 
missioners, while  it  provides  for  the  valua- 
tion of  all  other  property  by  county  assessors. 
St.  Louis,  I.  At.  6-  S.  R.  Co.  v.  Wort  ken,  41 
Am.  &*  Eng.  R.  Cas.  589,  $2  Ark.  529,  13  S. 
V/.  Rep.  254. 

21.  California.  —  California  Constitu- 
tion provides  that  real  estate  shall  be  taxed 
at  its  value  after  deducting  the  amount  of 
liens  thereon,  "except  as  to  railroad  and 
other  quasi  public  corporations."  If  eld, 
that  such  provision  is  in  conflict  with  th.nt 
provision  of  the  fourteenth  amendment  of 
the  Constitution  of  the  United  States 
which  guarantees  tlie  equal  protection  of 
the  law.  Santa  Clara  County  v.  Southern 
Pac.  R.  Co.,  13  Am.  &*  Eng.  R.  Can.  182,  18 
Fed.  Ref).  385.  9  .Saiiy.(U.  S)  165.— Foi.- 
LUWINU  San    Mateo  County   v,    Sontlicm 


Pac.  R.  Co..  8  Stwy.  s8i,  13  Fed.  Rep.  147, 
722.— Distinguished  in  Singer  Mfg.  Co. 
V.  Wright,  33  Fed.  Rep.  121. 

The  statute  of  1863-64,  |  1.  which  provides 
that  when  there  are  several  revenue  dis- 
tricts in  one  county  the  whole  length  of 
railroads  in  such  county  shall  be  assessed 
in  that  district  in  which  the  county  seat  is 
located,  is  in  conflict  with  the  state  Consti- 
tution, art.  II,  {  13,  requiring  assessors  and 
collectors  to  be  elected  by  the  electors  of 
the  district  in  which  the  property  taxed  is 
situated.  Peopit  v.  Plactrvillt  6*  S.  V,  R. 
Co.,  34  Cal.  6$6. 

The  state  Constitution,  art.  13,  {  lo, 
providing  for  taxation  of  railroad  property, 
is  not  a  "  local  or  special  law  "  passed  by 
the  legislature.  San  Francisco  &*  N.  P.  R. 
Co.  v.  Statt  Board  of  Equalization,  1 3  Am, 
^  Eng.  R.  Cas,  248,  60  Cal.  12. 

The  act  of  March  18,  1874,  §  9,  authorizing 
an  assessment  for  taxes  in  the  city  of  San 
Francisco  after  the  time  within  which  the 
board  of  supervisors  can  meet  to  equalize 
assessments,  is  violative  of  that  provision 
of  both  the  state  and  federal  Constitutions 
which  guarantees  equal  protection  of  the 
law.  (Myrick  and  Thornton.  JJ.,  dissenting.) 
Peopl*  v.  Pittsburg  R.  Co.,  22  Am.  &*  Eng. 
R.  Cas.  206.  67  Cal.  625,  8  Pac.  Rep.  381. 

California  Political  Code,  ?§  3665-3670, 
providing  a  special  mode  of  collecting  taxes 
on  railroads  running  through  two  or  more 
counties,  is  in  violation  of  tliat  provision  of 
the  state  Constitution  which  forbids  special 
laws  for  the  assessment  or  collection  of  taxes 
or  for  regulating  the  practice  of  courts  of 
justice.  People  v.  Central  Pac.  R.  Co.,  41 
Am.  &*  Eng.  R.  Cas.  653.  83  Cal.  393.  23 
Pac.  Rep.  303.— Following  Dundee  Mort- 
gage Trust  Inv.  Co.  v.  School  Dist.  No.  1. 
10  Sawy.  $2.— Santa  Clara  County  v.  Soutk- 
ern  Pac.  R.  Co.,  13  Am.  &*  Eng.  R.  Cas. 
182,    18  Fed.  Rep.  385.  9  Sawy.  (U.  S.)  165. 

22.  Dakota  territory.*— The  legisla- 
tuie  of  the  territory  passed  an  act,  March  7, 
1889,  providing  that  railroad  companies  that 
would  accept  the  act  should  pay  three  per 
cent,  annually  on  their  gross  earnings  for 
the  first  five  years,  and  two  per  cent,  there- 
m'ter.  The  act  of  congress  organizing  the 
territory  provides  that  the  legislative  as- 
sembly shall  pass  no  law  impairing  the 
rights  of  private  property,  nor  make  any  dis- 
rrimination    in    taxing    dilTerent  kinds  of 

*  See  also  fiost,  42. 


fc 


^ 


T^- 


il  I 


i  ;1 

in 


II 


TAXATION,  aa 


property,  but  that  all  pfoperty  subject  to 
taxution  shall  be  taxed  in  proportion  to  its 
value.  HM,  that  the  above  statute  is  in 
conflict  with  such  act  of  congress  s<>  far  as 
it  exempts  from  taxation  lands  owned  by  a 
company  merely  for  the  pur|K>te  of  sale,  and 
not  necessary  for  its  functions  as  a  common 
carrier ;  and  such  act  is  also  in  conflict  with 
the  fourteenth  amendment  of  the  Consti« 
tution  of  the  United  States.  Nortktrn  Pac. 
Ji.  Co.  V.  Walker,  47  Fed.  Kefi.  681. 

23.  Uoorgla.  -  By  Georgia  Code  of 
1863  it  was  enacted  that  private  corpora* 
tions  were  subject  to  be  changed,  modified, 
or  destroyed  at  the  will  of  the  creator,  ex- 
cept so  far  as  the  law  forbade  it ;  and  ttiat  in 
all  cases  of  private  charters  thereafter 
granted,  the  sute  reserved  the  right  to 
withdraw  the  franchise,  unless  expressly 
negatived  in  the  charter.  Two  railroads 
created  prior  to  1863,  cacli  of  which  enjoyed 
by  its  charter  a  limited  exemption  from 
taxation,  were  consolidated  by  virtue  of  an 
act  of  the  legislature  passed  April  18,  1863, 
which  auv.iiorised  a  consolidation  of  tlieir 
Mock,  conferred  upon  the  consolidated  com- 
pany full  corporate  powers,  and  continued 
to  it  the  franchises,  privileges,  and  immuni- 
ties which  the  companies  had  held  by  their 
original  charters.  Held:  (1)  that,  by  the 
consolidation  a  new  corporation  was  created 
and  the  original  companies  were  dissolved  ; 
(3)  that  the  new  corporation  became  sub- 
ject to  the  provisions  of  the  code  which 
reserved  the  right  of  the  legislature  to  with- 
draw its  charter  or  to  change,  modify,  or 
destroy  it ;  (3)  that  a  subsequent  legislative 
act,  taxing  the  property  of  the  corporation 
as  the  property  in  the  state  is  taxed,  was 
not  prohibited  by  that  provision  of  the  Con- 
stitution of  the  United  States  which  denies 
to  states  the  power  of  p..:3ing  laws  impair- 
ing the  obligation  of  contracts.  Atlantic 
4*  G.  R.  Co.  V.  Georgia,  98  U.  S.  359.— DIS- 
TINGUISHED IN  State  er  rcl.  v.  Keokuk  &  W. 
R.  Co.,  41  Am.  &  Eng.  R.  Cas.  694,  99  Mo. 
30,  6  L.  R.  A.  233,  13  S.  W.  Rep.  390;  State 
V.  Nashville,  C.  &  St.  L.  R.  Co.,  13  Lea 
(Tenn.)  583  ;  Indianola  R.  Co.  v.  Fryer,  1 1 
Am.  &  Eng.  R.  Cas.  334,  56  Tex.  609.  Fol- 
lowed IN  Greenwood  v.  Union  Freight  R. 
Co.,  105  U.  S.  13;  Memphis  &  L.  R.  R.  Co. 
V.  Railroad  Com'rs.  1 13  U.  S.  609 ;  Tennessee 
V.  Whitworth.  1 17  U.  S.  139.  Referred  to 
IN  Citixens'  St.  R.  Co.  v.  Memphis,  $3  Fed. 
Rep.  715.  Reviewed  in  Henderson  v.  Cen- 
tral Pass.  R.  Co.,  30  Am.  &  Eng.  R.  Cas.  542, 


31  Fed.  Rep.  sjS ;  Sutc  ex  rel.  v.  Keokuk  ft 
W.  R.  Co..  4t  Am.  ft  Eng.  R.  Cas.  694. 99 
Mo.  30,  6  L.  R.  A.  333,  13  S.  W.  Rep.  a9a 

The  act  of  February  38,  1874,  taxing  the 
Atlantic  and  Gulf  railroad  company  an 
amount  exceeding  one  half  of  one  per  cent, 
upon  its  annual  net  income,  is  constitu- 
tional. Atlantic  ^  G.  R.  Co.  v.  State,  $5 
Ga.  313.— Followed  in  Savannah,  G.  &  N. 
A.  R.  Co.  V.  State.  5$  Ga.  $57.— See  also 
Central  R.  &*  B.  Co.  v.  State,  54  Ga.  401 ; 
reversed  in  93  U.  S.  665. 

The  act  of  October  16,  1889,  relating  to 
taxing  railroad  property  for  county  pur- 
poses, is  a  general,  not  a  special  law,  and 
except  as  necessarily  r:hecked  and  quali- 
fied by  irrevocable  exemptions  previously 
granted,  it  is  uniform,  equal,  and  just.  It  is 
not  wanting  in  uniformity  because  it  recog- 
nizes and  seeks  to  abide  by  inviolable  char- 
ter rights  of  such  railroads  as  can  be  taxed 
for  county  purposes  only  upon  the  basis  of 
their  net  income,  there  being  in  fact,  under 
existing  conditions,  no  such  railroads  now 
in  the  state.  Columbus  Southern  R.  Co.  v. 
Wright,  54  Am.  A*  Et^.  R.  Cas.  35$.  89  Ga. 
574.  1  s  5.  yr.  Rep.  393 ;  affirmed  /m  1 5 1  U.S. 
470, 14  Sup.  Ct.  Rep.  396.— Followed  in 
Georgia  Midland  ft  G.  R.  Co.  v.  Sute.  89 
Ga.  597.  1 5  S.  E.  Rep.  301. 

Nor  because  it  requires  rollinf  stock  and 
other  floating  personalty  to  be  apportioned 
for  county  taxation  among  the  several 
counties  through  which  the  respective  rail* 
roads  run.  Columbus  Southern  R.  Co.  v. 
Wright,  S4  Am.  &»  Eng.  R.  Cas.  355. 89  Ga. 
S74.  15  S.  E.  Rep.  393;  affirmed  in  151  U. 
S.  470.  §4  Sup.  Ct.  Rep.  396.— Followed  in 
Georgia  Midland  ft  G.  R.  Co.  v.  Sute.  89 
Ca.  S97.  >5  S.  E.  Rep.  301. 

Nor  because  it  requires  returns  to  be  made 
to  the  comptroller-general  of  tlie  state  in- 
stead of  to  the  tax  receivers  of  the  several 
counties,  and  designates  that  officer,  and 
not  the  tax  officers  of  the  counties,  to  cal- 
culate the  amount  of  taxes  due  to  each 
county  according  to  the  returns  and  to  issue 
execution  therefor.  Columbus  Southern  R. 
Co.  V.  Wr^ht,  54  Am.  'f  E^g.  R.  Cas.  35  s, 
89  Ga.  574,  15  ,^.  E.  Rep.  393  ;  affirmed  in 
i$i  U.S.  470,  14  Sup.  Ct.  Rep.  396.— Fol- 
lowed IN  Georgia  Midland  ft  G.  R.  Co.  v. 
State,  89  Ga.  597.  15  S.  E.  Rep.  ioi. 

And  the  above  act  refers  to  but  one  sub- 
ject-matter, and  contains  nothing  different 
from  what  is  expressed  in  its  title.  Colum- 
bus  Southern  R.  Co.  v.  Wright,  S4  Am.  ^ 


TAXATION.  a4-ae. 


8S9 


E*lg.  R.  Cat.  t$$,  89  Ga.  574,  1$  5.  E.  Rtp. 
393.— Followed  in  Georgia  Midland  &  G. 
R.  Co.  V.  State,  89  Ga.  597, 15  S.  E.  Rep.  301. 

The  state  does  not  by  this  act  deny  to  any 
person  or  railroad  corporation  the  equal  pro- 
tection of  its  laws,  and  consequently  there 
is  no  conflict  with  the  fourteenth  amend- 
ment of  the  Constitution  of  the  United 
States.  Columbus  Soutktrn  K.  Co.  v.  Wright, 
54  Am,  A*  Eng.  R.  Cat,  3$$,  89  Ga.  $74,  ij 
S,  E.  Rtp.  393 :  affirmed  in  151  U.  S.  470, 
14  Sup.  Ct.  Rtp.  396.— Followed  in  Geor- 
gia Midland  &  G.  R.  Co.  v.  State,  89  Ga. 
597,  15  S.  E.  Rep.  301. 

24.  Illinois.  —  Although  the  Illinois 
Constitution  requires  taxation,  in  general,  to 
be  uniform  and  equal,  and  declares,  in  ex- 
press terms,  that  a  large  class  of  persons 
engaged  in  special  pursuits,  among  whom 
are  persons  or  corporations  owning  fran- 
chises and  privileges,  may  be  taxed  as  the 
legislature  shall  determine,  by  a  general  law, 
uniform  as  to  the  class  upon  which  it  oper- 
ates, yet  under  this  provision  a  statute  is 
not  unconstitutional  which  prescribes  a  dif- 
ferent rule  of  taxation  for  railroad  compa- 
nies from  that  for  individuals ;  nor  does  it 
violate  any  provision  of  the  federal  Consti- 
tution. Tayhr  v.  Steor,  92  U.  S.  575.— 
Following  Porter  v.  Rockford,  R.  I.  &  St. 
L.  R.  Co.,  76  111.  S6i  ;  Chicago,  B.  &  Q.  R. 
Co.  V.  Cole,  75  111.  591.— Quoted  and  ap- 
proved IN  Franklin  County  v.  Nashville,  C. 
ft  St.  L.  R.  Co.,  13  Lea  (Tenn.)  531. 

It  is  within  the  constitutional  power  of 
the  legislature  to  exempt  property  from 
taxation,  or  to  commute  the  general  rate 
for  a  fixed  sum.  So  a  provision  in  a  rail- 
road charter,  exempting  the  company's 
property  from  taxation,  upon  the  payment 
of  a  certain  proportion  of  its  earnings,  is 
constitutional.  Illinois  C.  R.  Co.  v.  AfcLtan 
County,  17  ///.  391.— Approved  in  Chicago 
V.  Sheldon,  9  Wall.  (U.  S.)  50.  Explained 
IN  Cook  County  v,  Chicago,  B.  &  Q.  R.  Co., 
3S  III.  460. 

The  act  of  Feb.  14,  1855,  which  directs 
that  the  tracks  and  superstructure  of  rail- 
roads, and  improvements  at  stations,  shall 
be  regarded  as  personal  property  for  the 
purpose  of  taxation,  is  a  valid  law.  It  is 
competent  for  the  legislature  to  declare 
fixtures,  which  at  common  law  are  part  of 
the  realty,  personal  property.  Maus  v. 
Logansport,  P.  6-  It.  R.  Co.,  37  ///.  77. 

Though  a  board  of  supervisors  nt.iy  not 
be  a  court,  a  statute  which  allows  on  appeal 


by  a  railroad  company  to  the  circuit  court 
from  the  action  of  such  board  in  assessing 
the  company's  property  for  taxation  is  not 
in  conflict  with  the  provision  of  the  state 
Constitution  that  the  judicial  power  of  the 
state  shall  be  vested  in  one  supreme  court, 
in  circuit  courts,  in  county  courts,  and  in 
justices  of  the  peace.  Burtau  County  Sup'rt 
v.  Chicago,  3.  &»  Q.  R.  Co.,  44  ///.  339. 

The  new  Constitution,  art.  9,  |  1,  does  not 
require  that  the  legislature,  in  providing  (or 
the  taxation  of  corporations,  designate  the 
precise  amount  which  each  corporation 
shall  pay.  and  that  this  shall  be  the  same 
on  each  corporation,  without  regard  to  the 
viilue  of  the  franchise  or  the  privileges 
enjoyed,  nor  that  such  taxation  shall  be  of 
like  character  with  that  which  may  he  im- 
posed on  innkeepers,  and  others  pursuing 
particular  vocations  named.  Porttr  v.  Roch' 
ford,  R.  I.  &*  St.  L.  R,  Co.,  76  ///.  561.— 
Followed  in  State  R.  '*'ax  Casts,  9s  U.  S. 
57$:  Hopkins  v.  Taylor,  87  III.  436;  Dan- 
ville L.  &  M.  Co.  V.  Parks,  88  III.  463:  Chi- 
cago,  P.  A  S.  W.  R.  Co.  v.  Raymond,  97  III. 
313.  Reaffirmed  in  Chicago,  B.  A  Q.  R. 
Co.  V.  Siders,  88  III.  330. 

25.  Indiana.— The  act  of  March  0, 
1891,  relating  to  taxation,  provides  a  general 
system  for  the  assessment  and  valuation  of 
property.  The  method  of  ascertaining  the 
valuation  and  assessing  each  class  and  kind 
of  property  applies  alike  to  all  persons  hold- 
ing and  owning  the  same  class  of  property ; 
it  applies  alike  to  all  persons  under  like 
circumstances  and  conditions,  and  it  does 
not  deny  to  railway  companies  the  equal 
protection  of  the  law.  and  is  not  in  conflict 
with  the  Constitution  of  the  United  States. 
Pittsburgh,  C,  C.  &*  St.  L.  R.  Co.  v.  Bachut, 
133  Ind.  625,  33  N.  E.  Rtp.  433. 

The  above  act,  by  creating  a  state  board 
of  tax  commissioners,  and  providing,  among 
other  things,  for  the  assessment  of  "rail- 
road  track"  and  "rolling  stock"  by  such 
board,  is  a  valid  enactment,  and  does  not 
deny  to  such  property  owners  "  due  process 
of  law,"  or  "  the  equal  protection  of  the 
law,"  in  the  assessment  of  their  property. 
Pittsburgh,  C,  C.  **  St.  L.  R.  Co.  v.  Backus, 
133  Ind.  625,  33  A^.  E.  Rtp.  432.— Quoting 
Porter  v.  Rockford,  R.  I.  &  St.  L.  R.  Co.,  76 
III.  561. 

20.  Iowa.— The  act  of  April  6.  1872,  ch. 
26,  §  9,  in  so  far  as  it  attempts  to  release 
railroad  companies  from  the  payment  of  all 
I  axes  except  the  tax  on  gross  earnings,  as 


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provided  for  in  a  former  statute,  is  in  con- 
flict with  the  state  Constitution,  art.  8,  §  2, 
providing  that  the  property  of  all  corpora- 
tions for  pecuniary  profit  shall  be  subject  to 
taxation  the  same  as  that  of  individuals. 
Davenport  v.  Chicago,  R.  I.  6-  P.  R.  Co.,  38 
Iowa  633.— Followed  in  Iowa  R.  Land 
Co.  V.  Woodbury  County,  39  Iowa  172.  Re- 
viewed AND  APPROVED  IN  Dubuque  V. 
Chicago,  D.  &  M.  R.  Co..  47  Iowa  196.— 
Dubuque  v.  Illinois  C  ^.  0>.,  39  Iowa  56,  20 
Am.  Ry.  Rep.  124.— I-  .-.i.owiNC-  Dunlieth  & 
D.  Bridge  Co.  v.  Dubuque.  32  Iowa  427. — 
Followed  in  Iowa  R.  I  -  .H  Co.  v.  Wood- 
bury County,  39  Iowa  Reviewed 
AND  APPROVEr)  IN  D'  '  |i'e  V.  Chicago, 
D.  &  M.  R.  Co.,  47  If  «'t<  \ffo.—Iowa  R. 
Land  Co.  v.  Woodbury  Ccuni_,,  39  Iowa  172. 
—Following  Dunlieth  &  D.  Bridge  Co.  v. 
Dubuque,  32  Iowa  427 ;   Paxon  v.  Illinois 

C.  R.  Co.,  56  Iowa  427 ;  Davenport  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  38  Iowa  633.— Fol- 
lowed in  Iowa  P  Land  Co.  v.  Woodbury 
County,  39  Iowa  172. — Dubuque  v.  Chicago, 

D.  &*  M.  R.  Co.,  47  Iowa  196.— Applied  in 
Chicago.  M.  &  St.  P.  R.  Co.  v.  Sabula,  13 
Am.  &  Eng.  R.  Cas.  443,  19  Fed.  Rep.  177. 

But  deciding  that  said  section  9  of  the 
act  is  unconstitutional  does  not  render  tiie 
remaining  portions  of  the  act  void.  Du- 
buque V.  Chicago,  D.  &*  M.  R.  Co.,  47  Iowa 
196. — Reviewing  and  approving  Daven- 
port V.  Chicago,  R.  I.  &  P.  R.  Co.,  38  Iowa 
633;  Dubuque  v.  Illinois  C.  R.  Co.,  39 
Iowa  56. 

For  a  synopsis  of  the  various  legislative 
enactments  upon  the  subject  of  taxation  of 
the  property  of  railway  corporations,  see 
Dubuque  v.  Illinois  C.  R.  Co.,  39  Iowa  56. 

The  act  of  the  legislature  legalizing  cer- 
tain judgment  taxes  levied  by  certain  mu- 
nicipal corporations  is  a  general  law,  and 
valid.  Iowa  R.  Land  Co.  v.  Soper,  39  Iowa 
113,  9  Am.  Ry.  Rep.  29.— Followed  in 
Iowa  R.  Land  Co.  v.  Sac  County,  39  Iowa  1 24. 

The  provision  of  the  Code,  §  1317,  pro- 
viding for  the  assessment  of  railroads 
every  year,  while  real  estate  is  assessed 
only  every  two  years,  is  not  repugnant 
to  the  fourteenth  amendment  to  the  Con- 
stitution of  the  United  States,  nor  to 
the  state  Constitution,  art.  i,  §  6,  providing 
that  all  laws  of  :i  general  nature  shall 
have  a  uniform  operation,  and  that  the 
general  assembly  shall  not  grant  to  any 
citizen,  or  class  of  citizens,  profits  or  im- 
munities which  upon  the  same  terms  shall 


not  belong  to  all  the  citizens.  Central 
Iowa  R.  Co.  V.  Wright  County  Sup'rs,  22 
Am.  &*  Eng.  R.  Cas.  223,  67  Iowa  199,  25 
N.  W.Rep.  128. 

27.  Kansas. — The  provision  in  Kansas 
Act  of  February  23,  1875,  ceding  to  the 
United  States  jurisdiction  over  the  Fort 
Leavenworth  military  reservation,  but  re- 
serving to  the  state  "  the  right  to  tax 
railroad,  bridge,  and  other  corporations " 
thereon,  is  valid,  and  does  not  come  within 
the  meaning  of  U.  S.  Const.,  art.  i,  §  8,  giv- 
ing to  congress  exclusive  right  to  legislate 
over  grounds  purchased  for  forts,  maga- 
zines, arsenals,  dockyards,  and  other  need- 
ful buildings.  Ft.  Leavenworth  R.  Co.  v. 
Lowe,  114  U.  S.  525,  5  Sup.  Ct.  Rep.  995.— 
Followed  in  Chicago,  R.  I.  &  P.  R.  Co. 
V.  McGlinn,  114  U.  S.  542.  Quoted  in 
Maricopa  County  Delinquents  v.  Territory, 
(Ariz.)  48  Am.  &  Eng.  R.  Cas.  620,  26 
Pac.  Rep.  310. 

The  law  of  1869,  ch.  124,  or  so  much  of 
it  as  provides  for  the  assessment  of  railroad 
property  by  a  board  of  county  clerks,  and 
that  the  entire  road  shall  be  assessed  as  a 
whole  and  apportioned  to  the  different 
counties,  townships,  etc.,  through  which  the 
road  runs,  is  not  unconstitutional.  Mis- 
souri River,  Ft.  S.  &*  G.  R.  Co.  v.  Morris,  7 
Kan.  210,  I  Am.  Ry.  Rep.  353.— Approved 
IN  Kansas  Pac.  R.  Co.  v.  Russell,  8  Kan. 
558.  Followed  in  Missouri  River,  Ft.  S. 
&  G.  R.  Co.  V.  Blake,  9  Kan.  489.  Quoted 
IN  Wisconsin  C.  R.  Co.  v.  Taylor  County, 
I  Am.  &  Eng.  R.  Cas.  532,  52  Wis.  37 ;  Vir- 
ginia &  T.  R.  Co.  V.  Washington  County,  30 
Gratt.  (Va.)  471. 

The  act  of  1876,  §  37,  providing  a  special 
method  of  taxing  railroad  property  outside 
of  organized  counties,  is  not  in  conflict  with 
the  state  Constitution,  art.  2,  §  17,  providing 
that  all  laws  of  a  general  nature  shall  have 
a  uniform  operation  throughout  the  state ; 
nor  with  section  i  of  article  11,  providing 
that  the  legislature  shall  provide  for  a  uni- 
form and  equal  rate  of  assessment  and  tax- 
ation. Francis  v.  Atchison,  T.  &•  S.  F.  R. 
Co.,  19  Kan.  303,  19  Am.  Ry.  Rep.  20.— 
Quoted  in  Wisconsin  C,  R.  Co.  v.  Taylor 
County,  I  Am.  &  Eng.  R.  Cas.  532,  52 
Wis.  37. 

The  law  of  1870,  ch.  90,  §  7  (Comp.  Laws 
of  1879,  PP-  7961  797)1  so  far  as  it  attempts 
to  divert  any  portion  of  the  general  county 
tax  or  general  township  tax  to  the  payment 
of   a  certain    class    of   township   railroad 


TAXATION,  SfS^l. 


841 


<    : 


bonds,  is  void,  being  in  contravention  of  the 
state  Constitution,  art.  ii,  §4,  which  pro- 
vides that  "  no  tax  shall  be  levied  except  in 
pursuance  of  a  law,  which  shpM  distinctly 
state  the  object  of  the  same  ;  to  which  ob- 
ject only  such  tax  shall  be  applied."  Na- 
tional Bank  V.  Barber,  5  Am.  &*  Eng.  R. 
Cas.  181,  24  Kan.  534. 

28.  Kentucky.  —  Ky.  Act  of  April  3, 
1878,  providing  a  plan  for  taxing  railroads, 
which  provides  a  time  and  the  office  to 
which  a  company  must  make  a  return  of  its 
property  with  its  value,  and  fixes  a  time  and 
place  for  the  official  assessment,  with  the 
right  to  parties  to  be  present  and  to  be 
heard,  and  which  affords  a  remedy  in  court 
to  test  the  validity  of  the  proceeding,  does 
not  deprive  the  company  of  its  property 
without  "due  process  of  law."  Cincinnati, 
N.  O.  &*  T.  P.  R.  Co.  V.  Kentucky,  22  Am. 
6-  Eng.  R.  Cas.  225,  115  U.  S.  321,  6  Sup. 
Ct.  Rep.  57.— Quoted  in  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Worthen,  41  Am.  &  Eng.  R. 
Cas.  589,  52  Ark.  529. 

The  legislature  had  the  constitutional 
right  to  pass  the  act  of  Feb.  20,  1864, 
changing  the  mode  of  assessing  and  taxing 
railroad  property,  and  repealing  all  laws 
and  charters  in  conflict  with  it,  unless  in 
cases  where  the  state  has  expressly  relin> 
quished  the  right  to  tax  in  consideration  of 
some  public  benefit.  Louisville,  C.  &*  L.  R, 
Co.  V.  Com.,  10  Bush  (Ky.)  43. 

An  act  imposing  additional  taxation  fo' 
county  purposes  is  constitutional.  Kentucky 
C.  R.  Co.  V.  Bourbon  County,  82  Ky.  497. 

20.  Louisiana. — The  law  which  makes 
the  market  «ralue  of  the  evidences  of  rights 
to  the  capital  of  a  corporation  a  criterion 
of  value,  for  purposes  of  taxation,  of  its  cap- 
ital or  capital  stock,  is  not  unconstitutional. 
St.  Charles  St.  R.  Co.  v.  Board  of  Assessors, 
31  La.  Ann.  852. 

The  act  of  1878,  No.  9,  §§  18,  19,  author- 
izing the  assessment  of  taxable  property 
omitted  from  rolls  for  previous  years,  is  not 
in  conflict  with  the  state  Constitution  of 
1868,  art.  no,  prohibiting  retroactive  legis- 
lation. Such  lawsonly  as  impair  the  obliga- 
tion of  contracts,  or  divest  rights,  or  which 
create  new  rights,  or  impose  new  obliga- 
tions, not  in  esse  before  the  passage  of  the 
law,  partaking  of  the  nature  of  ex  post  facto 
laws,  fall  under  the  ban  of  the  constitutional 
inhibition.  (Manning,  J.,  dissenting.)  New 
Orleans  v.  New  Orleans  &*  C.  R.  Co.,  35  La. 
Ann.  679. 


Such  constitutional  restraint  does  not 
prevent  the  passage  of  remedial  or  curative 
laws  designed  to  carry  out  a  previously  ex- 
isting right,  or  to  enforce  an  anterior  obli- 
gation. Particularly  is  such  the  case  in 
matters  of  public  concern  when  the  object 
in  view  is  to  have  the  burden  of  taxation 
equally  shared  by  all.  The  above  sections 
are  not  retroactive,  though  retrospective. 
They  refer  to  the  past  but  provide  for  a 
future  remedy.  AVze/  Orleans  v.  New  Or' 
leans  6*  C.  R.  Co.,  35  La.  Ann.67g. 

La.  Const,  art.  217,  relating  to  taxation, 
relates  exclusively  to  foreign  corporations, 
and  not  to  domestic  ones.  New  Orleans  v. 
Pontchartrain  R.  Co.,  41  La.  Ann.  510,  7  So, 
Rep.  83. 

30.  Maine.  —  The  statute  of  1880,  ch. 
249,  entitled  "  An  act  relating  to  the  taxa- 
tion of  railroads,"  provides  for  a  franchise 
tax,  and  is,  therefore,  not  in  conflict  with 
the  state  Constitution,  art.  9,  §  8,  requiring 
all  taxf  s  upon  real  and  personal  estate  to  be 
apportioned  and  assessed  equally,  according 
to  its  just  value.  State  v.  Maine  C.  R.  Co., 
74  Me.  376. 

31.  Maryland.— The  legislature  passed 
a  statute  entitled  "  An  act  to  provide  for 
the  general  valuation  and  assessment  of 
property  in  this  state,"  but  in  the  body  of 
the  statute  was  a  clause  repealing  "  all  laws 
exempting  property  from  valuation."  Held, 
that  the  repealing  clause  was  not  in  conflict 
with  the  provision  of  the  state  Constitution 
that  "  every  law  shall  embrace  but  one  sub- 
ject and  that  shall  be  described  in  its  title." 
Washington  County  Com'rs  v.  Franklin  R. 
Co.,  34  Md.  159. 

The  provisions  of  the  acts  of  1866,  ch. 
157;  1870,  ch.  362:  and  1872,  ch.  234,  were 
repugnant  to,  and  inconsistent  with,  the 
exemption  from  taxation  claimed  by  the 
Northern  Central  railway  company,  under 
the  act  of  1854;  and,  as  these  several  acts 
could  not  stand  together,  the  former  must 
be  considered  as  a  repeal  of  the  latter.  The 
tax  imposed  by  the  act  of  1872,  ch.  234,  upon 
the  gross  receipts  of  the  company  was  a 
valid  tax,  and  in  no  wise  in  conflict  with 
article  i  $  of  the  Bill  of  Rights,  which  requires 
that  all  taxation  laid  on  property  shall  be 
uniform  and  equal.  State  v.  Northern  C. 
R.  Co..  44  Md.  131.— Reviewing  State  v. 
Cumberland  &  P.  R.  Co.,  40  Md.  22. 

The  imposition  by  the  act  of  1872,  ch. 
234,  of  a  tax  of  one  half  of  one  per  cent, 
upon  the  gross  receipts  of  nil  railroad  com^ 


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TAXATION,  82-86. 


panics  worked  by  steam,  incorporated  by 
or  under  authority  of  the  state,  and  doing 
business  therein,  in  lieu  of  all  other  taxes, 
is  a  valid  exercise  of  constitutional  power. 
Such  tax  is  not  a  direct  tax  upon  the  prop- 
erty of  the  companies  within  the  meaning  of 
article  15  of  the  Bill  of  Rights,  but  a  tax 
upon  the  franchise  of  said  companies,  meas- 
ured by  the  extent  of  their  business.  StaU 
V.  Philadelphia,  W.  &*  B.  R.  Co.,  45  Md. 
361.— Quoting  Delaware  R.  Tax,  18  Wall. 
(U.  S.)  206.  Reviewing  State  v.  Cumber- 
land &  P.  R.  Co.,  40  Md,  22  ;  Com.  v.  Provi- 
dent Inst,  for  Savings,  1 2  Allen  (Mass.)  312.— 
Quoted  in  Baltimore  Union  Pass.  R.  Co. 
V.  Mayor,  etc.,  of  Baltimore,  41  A  .1.  &  Eng. 
R.  Cas.  646,  71  Md.  405,  18  Atl.  Rep.  917. 

32.  Massachusetts.  —  The  legislature 
has  the  power  by  general  law  to  require 
domestic  corporations  to  pay  to  the  state  a 
tax  upon  the  excess  of  the  market  value  of 
its  stock  over  the  value  of  its  real  estate  and 
machinery  taxable  in  the  town  or  city  where 
situated;  and  this  power  is  not  affected  by 
the  fact  that  the  corporation  owns  bonds  of 
the  United  States,  or  that  a  portion  of  its 
stockholders  live  in  other  states.  Com. 
V.  Hamilton  Mfg.  Co.,  12  Allen  {Mass.)  398 ; 
affirmed  in  6  IVall.  ( U.  S.)  632. 

Mass.  Pub.  St.  ch.  1 3,  §  40,  provides  that 
railroad  and  telegraph  companies  shall  pay 
an  annual  tax  on  their  corporate  franchises, 
at  a  certain  valuation.  Held,  that  the  right 
to  impose  this  tax  upon  a  telegraph  com- 
pany is  not  impaired  by  the  fact  that  certain 
privileges  are  conferred  upon  such  compa- 
nies  by  U.  S.  Rev.  St.  §§  5263-3266.  At- 
torney-General V.  Western  Union  Tel.  Co., 
33  Fed.  Rep.  129. 

Neither  is  a  tax  levied  under  the  above 
statute  void  as  applied  to  a  company  doing 
an  interstate  business,  because  the  regula- 
tion of  interstate  rommerce  is  reserved  to 
congress.  Attorney-General  v.  Western 
Union  Tel.  Co.,  33  Fed.  Rep.  129. 

33.  Micliigau.  —The  act  of  1882  re- 
pealing what  was  known  as  the  Tramway 
Act,  which  provides  for  a  specific  tax  to  the 
state  in  lieu  of  all  other  taxes,  is  not  uncon> 
stitutional  on  the  ground  that  it  impairs  the 
obligation  of  a  contract.  Detroit  v.  Detroit 
City  R.  Co.,  39  Am.  &»  Eng.  R.  Cas.  538,  76 
Mich.  421,  43  A^  W.  Rep.  447.— ADHERING 
TO  Detroit  City  St.  R.  Co.  v.  Guthard,  51 
Mich.  180,  16  N.  W.  Rep.  328. 

Neither  is  the  above  act  unconstitutional 
on  the  ground  that  it  forms  part  of  the 


general  tax  rommluion  icheme,  to  far  u  it 
turns  over  the  property  of  tramroads  for 
taxation  underthe  general  laws  of  the  state. 
Detroit  v.  Detroit  City  R.  Co.,  39  Am.  &* 
Eng.  R.  Cas.  538,  76  Mich.  421,  43  N.  W. 
Rep.  447. 

34.  Minnesota.— The  exemption  from 
ordinary  taxation  originally  created  in  favor 
of  the  Minnesota  &  Pacific  railroad  passed 
with  the  lands  to  which  it  is  appendant  to 
the  St.  Paul  &  Pacific  company,  and  to 
the  first  division  of  that  company.  Stevens 
County  V.  St.  Paul,  M.  6-  M.  R.  Co.,  29  Am. 
&-  Eng.  R.  Cas.  225,  36  Minn.  467,  31  A';  W. 
Rep.  942. 

35.  Mississippi.  —  The  Constitution, 
art.  12,  §  13,  declares  that"  the  property  of  all 
corporations  for  pecuniary  profit  shall  be  sub- 
ject to  taxation  the  sanie  as  that  of  individ- 
uals." HM,  that  it  was  not  the  intention  of 
this  provision  to  confer  upon  the  legislature 
power  to  tax  property  of  corporations  of  the 
class  mentioned,  nor  to  require  the  taxation 
of  property  of  corporations  whose  charters 
previously  granted  secured  them  from  tax- 
ation. It  was  not  designed  to  establish  the 
rule  that  all  corporations  for  pecuniary  profit 
must  be  taxed,  nor  to  exempt  from  taxation 
the  property  of  corporations  other  than  those 
for  pecuniary  profit.  Mississippi  Mills  v. 
Cook,  56  Miss.  40. 

Article  1 2,  §  20,  of  the  above  Constitution 
provides  that  "  taxation  shall  be  equal  and 
uniform  throughout  the  state.  All  property 
shall  be  taxed  in  proportion  to  its  value,  to 
be  ascertained  as  directed  by  law."  Held, 
that  any  statute  or  charterwhich  exempts  the 
property  of  a  corporation  for  pecuniary  profit 
from  taxation  is  in  conflict  with  the  above 
section.  (Chalmers,  J.,  dissenting.)  Mis- 
sissippi  Mills  v.  Cook,  56  Miss.  40. 

36.  Missouri.  —  (i)  Federal  decisions. 
—Mo.  Act  of  Dec.  25,  1852,  provided  that 
the  Pacific  railroad  should  be  exempt  from 
taxation  until  completed  and  in  operation, 
and  until  it  should  declare  a  dividend,  the 
exemption  not  to  extend  longer  than  two 
years  after  completion.  Held,  to  constitute 
a  contract  which  was  violated  by  the  state 
ordinance  of  1865,  adopted  as  part  of  a  new 
Constitution,  imposing  a  ten  per  cent,  tax 
on  the  gross  earnings  of  the  road  before  it 
was  completed  and  in  operation.  Pacific  R, 
Co.  V.  Maguire,  20  Wall.  (U.S.)  36,  6  Am. 
Ry.  Rep.  437.— APPROVED  in  South  Pac.  R. 
Co.  V.  Laclede  County,  57  Mo.  147.  Dis- 
tinguished in  People  ex  rel.  v.  Com'rs  of 


J 


TAXATION,  36. 


843 


W. 


TazM,  2  Am.  &  Eng.  R.  Cas.  343,  82  N.  Y. 
4S9.  Reviewed  in  Hewitt  v.  New  York  & 
O.  M.  R.  Co..  12  Blatchf.  (U.  S.)  452. 

A  statute  imposing  a  tax  on  the  gross  re« 
ceipts  of  express  companies  doing  business 
under  contract  with  railroad  or  steamboat 
companies,  but  exempting  companies  own- 
ing  their  own  means  of  transportation,  is  not 
a  denial  of  the  equal  protection  of  the  laws 
of  the  state,  and  does  not  violate  the  re- 
quirements  of  the  Missouri  Constitution  for 
"  uniformity  and  equality  "  of  taxation.  Pa' 
cific  Exf>.  Co.  V.  Seibtrt,  48  Am.  &*  Eng.  R. 
Cas.  610,  142  U.  S.  339,  12  Sup.  Ct.  Jiep.  250. 

Missouri  Act  of  July  30,  1877,  and  of  the 
Rev.  St.  of  1879,  §§  6865-6900,  giving  the 
state  board  of  equalization  exclusive  power 
to  assess  railroad  property,  are  not  in  con- 
flict  with  art.  10,  §  i,  of  the  state  Constitu- 
tion, nor  with  a  provision  of  a  city  charter 
which  authorizes  the  city  to  levy  and  collect 
taxes  "upon  all  real  and  personal  estate 
taxable  by  the  '  #s  of  the  state  "  within  its 
corporate  limits.  Central  Trust  Co.  v.  Wa- 
bash, St.  L.  6-  P.  R.  Co..  rj  Fed.  Pep.  14. 

(2)  State  decisions,  —  The  convention  or- 
dinance of  1865,  providing  that  an  annual 
tax  of  ten  and  fifteen  per  cent,  on  the  gross 
earnings  of  a  certain  railroad  should  be  paid 
to  the  state  in  lieu  of  other  taxation,  and 
applied  in  payment  of  the  debt  due  from  the 
state  on  bonds  issued  to  the  company,  is 
not  in  violation  of  either  the  fifth  or  sev- 
enth amendment  of  the  Constitution  of  the 
United  States.  These  amendments  were  not 
designed  as  limitations  upon  state  govern- 
ments in  respect  to  their  own  citizens,  but  as 
restrictions  upon  the  federal  power.  North 
Mo.  R.  Co.  v.  Maguire,  49  Mo.  490,  i  Am. 
Ry.  Rep.  243.  —  Followed  in  Pacific  R. 
Co.  V.  Maguire,  51  Mo.  142.  Reviewed  in 
Ranney  v.  Bader,  67  Mo.  476. 

Neither  is  the  above  ordinance  unconsti- 
tutional by  virtue  of  the  clause  imposing 
uniform  taxation  on  all  property,  nor  on  the 
ground  that  the  assessment  is  not  in  the 
nature  of  a  tax.  North  Mo.  R.  Co,  v.  Ma- 
guire, 49  Mo,  490,  I  Am.  Ry.  Rep,  243. 

The  act  of  March  10,  1871,  providing  for 
a  uniform  system  of  assessing  and  collecting 
taxes  on  railroads,  and  which  requires  the 
staie  board  of  equalization  to  ascertain  the 
value  of  su'Th  property  within  the  limits  of 
any  city,  is  not  in  violation  of  art.  i,  §  30,  of 
the  state  Constitution,  providing  that  tax- 
ation on  property  shall  be  uniform.  State 
«x  rtl.  V.  Severance,  55  Mo,  378. 


The  act  of  March  10, 1871,  (  3,  provided 
only  (or  the  assessment  and  collection  of 
taxes  upon  property  theretofore  subject  to 
taxation  which  through  inadvertence  had 
escaped.  It  did  not  operate  "retrospect- 
ively." in  the  sense  of  that  word  as  used  in 
the  state  Constitution.  Livingston  County 
v.  Hannibal  &»  St.  J.  R.  Co.,  60  Mo.  516. 

The  act  of  March  15,  1875,  §  8,  under 
which  the  amount  of  the  "  land  contracts  " 
of  the  Hannibal  t.  Joseph  railroad  com- 
pany was  apportio  ed  and  taxed  to  the  coun- 
ties, cities,  and  towns  along  the  route  of  the 
road  and  its  branches,  is  not  unconstitu- 
tional. Hannibal  &*  St.  J.  R.  Co.  v.  State 
Board  of  Equalization,  64  Mo.  294.  —  Re- 
viewed IN  Cleveland,  C.  C.  &  St.  L.  R. 
Co.  w.  Backus,  133  Ind.  513;  Pittsburgh,  C, 
C.  &  St.  L.  R.  Co.  V.  Backus,  54  Am.  & 
Eng.  R.  Cas.  227,  133  Ind.  625,  33  N.  E. 
Rep.  432. 

A  tax  levied  by  state  authority  upon  the 
gross  receipts  of  an  express  company,  whose 
business  consists  in  receiving  goods  to  be 
delivered  at  points  outside  of  the  state,  to 
which  the  company's  line  does  not  extend, 
is  not  a  violation  of  that  provision  of  the 
Constitution  of  the  United  States  which 
confides  to  congress  alone  the  power  to 
regulate  commerce  with  foreign  nations  and 
among  the  several  states.  American  Union 
Exp.  Co.  V.  St.  Joseph,  66  Mo.  675. — Fol- 
lowing Erie  R.  Co.  v,  Pennsylvania,  15 
Wall.  (U.  S.)  282. 

Taxing  the  shares  against  the  stockhold- 
ers and  also  the  capital  stock  of  a  com- 
pany, or  the  property  represented  by  the 
capital  stock,  is  duplicate  taxation.  State 
V.  St.  Louis,  K.  C.  &'  N.  R.  Co.,  77  Mo.  202. 

The  Rev.  St.  of  1853.  §  32  (Rev.  St.  1865,  c' 
63.  §  19).  which  provided  that  "  if  any  of  the 
taxpayers  in  any  county  or  city  in  which 
a  railroad  tax  shall  be  levied  shall  have 
subscribed  in  good  faith  to  the  capital  stock 
of  any  railroad  to  which  the  county  shall 
have  subscribed,  the  said  taxpayers  shall  be 
entitled  to  a  deduction  on  the  amount 
assessed  against  them  respectively,  in  pro- 
portion to  the  amounts  of  their  bona  fide 
subscriptions,  after  which  they  shall  be  sub- 
ject to  pay  their  railroad  tax  as  other  per- 
sons," is  repugnant  to  the  Constitution  of 
1865,  and  hence  invalid.  Cock  v.  Stewart, 
8s  Mo.  575.— Approving  Ramsay  ».  Hoeger, 
6  Chicago  Leg.  News  518. 

Revised  Statutes,  §  6880,  regulating  the 
levying  of  taxes  on  railroad  property  by 


It 


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tip; 


■4''. 


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OVw 


TAXATION,  37-39. 


!S  J  '  ,' 


fflii  1'  " 


II  M 


ascertaining  from  the  returns  in  the  office 
of  the  county  cleric  the  average  rate  levied 
for  school  purposes  by  the  local  boards,  and 
charging  to  the  railroad  taxes  at  such  aver- 
age rate  on  the  proportionate  value  of  the 
railroad  property  certified  to  the  cleric  of  tlie 
county  court  by  the  state,  is  constitutional, 
both  as  regards  the  state  and  federal  Con- 
stitutions. State  €x  rel.  v.  Missouri  Pac, 
R.  Co.,  92  Mo.  137,  6  S.  W.  Rep.  862.— 
Quoted  in  Chicago  &  A.  R.  Co.  v.  Lam- 
kin,  97  Mo.  496,  JO  S.  W.  Rep.  200. 

Under  the  Const,  art.  10,  §  5,  it  is  com- 
petent for  the  legislature  in  taxing  railroads 
for  school  purposes  »o  classify  the  property. 
Therefore  a  statute  which  authorizes  tiie 
levying  of  a  school  tax  on  the  apportioned 
value  of  a  roadbed  and  rolling  stock  by 
taking  the  average  of  the  local  rates  of  the 
several  school  districts  is  not  unconstitu- 
tional. Chicago  &*  A.  R.  Co.  v.  Lamkin,  97 
Mo.  496,  10  S.  W.  Rep.  200.— Following 
In  re  Apportionment  of  Taxes,  78  Mo.  596. 
Quoting  State  ex  rel.  v.  Missouri  Pac.  R. 
Co..  92  Mo.  137.  Reviewing  State  ex  rel. 
V.  Wabash.  St.  L.  &  P.  R.  Co.,  83  Mo.  395. 

37.  Nebraska.  —  Legislation  authoriz- 
ing a  land  tax  of  "  four  dollars  to  the  quar- 
ter section,  to  be  paid  in  money,  or  labor  at 
the  rate  of  two  dollars  per  day,  at  the  op- 
tion of  the  person  taxed,"  is  not  repugnant 
to  any  provisions  of  the  Neb.  Const,  of  1867, 
and  a  tax  so  levied  will  not  be  void  for 
want  of  uniformity  because  not  assessed 
against  lots  in  cities  and  towns,  or  properly 
occupied  as  right  of  way  by  railroad  com- 
panies, etc.  Burlington  &•  M.  R.  R.  Co.  v. 
Lancaster  County,  4  Neb.  293. — Followed 
IN  Burlington  &  M.  R.  R.  Co.  v.  York 
County  Com'rs,  7  Neb.  487. 

The  act  of  Feb.  12,  1869,  entitled  "An 
act  to  encourage  the  growth  of  timber 
and  fruit  trees,"  is  repugnant  to  the  Consti- 
tution of  1875,  and  is  therefore  inoperative; 
and  all  deductions  made  under  it  from  the 
assessments  of  lands  for  each  acre  planted 
and  cultivated  with  forest  and  fruit  trees 
are  made  without  authority  of  law;  they 
are  mere  nullities,  and  must  be  so  treated 
by  the  county  commissioners  in  levying  the 
necessary  taxes  for  the  current  year.  Union 
Pac.  R.  Co.  V.  Saunders  County  Com'rs,  7 
Ne6.  228. 

Land  road  taxes,  legally  levied  but  not 
collected  before  the  Constitution  of  1875 
took  effect,  although  not  imposed  upon  the 
basis  directed  by  that  instrument,  are  not 


invalidated  by  it.  Burlington  &*  M.  R.  R. 
Co.  V.  Saunders  County  Com'rs,  9  Neb.  507,  4 
N.  fV.  Rep.  240.— Following  Burlington  A 
M.  R.  R.  Co.  V.  York  County  Com'rs,  7 
Neb.  487, 

That  provision  of  the  act  of  February  25, 
187  s,  entitled  "  An  act  to  amend  an  act  to 
provide  for  the  registration  of  precinct  or 
township  and  school-district  bonds,"  mak- 
ing it  the  duty  of  the  county  commissioners 
to  levy  the  necessary  taxes  to  meet  the  lia- 
bility incurred  by  such  bonds,  is  in  conflict 
with  the  Constitution  of  1867,  art,  2,  §  19, 
which  declares  that  "no  bill  i^hall  contain 
more  than  one  ^abject,  which  shall  be 
clearly  expressef^  .1  its  title."  Burlington 
&*  M.  R.  R.  Co.  v.  Saunders  County  Com'rs, 
9  Neb.  507,  4  N.  W.  Pep.  240. 

38.  New  Hampshire.  —Chapter  63  of 
the  General  Laws  is  a  provision  for  an  un- 
equal division  of  public  expense,  and  is  not 
authorized  by  the  Constitution.  State  v. 
United  States  &•  C.  Exp.  Co.,  60  N. //.  2ig. 

31).  New  Jersey.  — The  act  entitled 
"  An  act  relating  to  taxes  to  be  paid  by  the 
Erie  Railway  company  for  certain  property 
owned,  leased,  used,  or  occupied  by  it  in 
this  state"  (Laws  of  1870,  p.  1168)  relates 
to  the  property  of  the  Long  Dock  com- 
pany, used  or  occupied  by  said  railway  com- 
pany, and  therefore  embraces  but  one  object, 
which  is  sufficiently  expressed  in  its  title. 
The  act  is  to  have  effect,  though  it  does  not 
in  terms  refer  to  the  act  "  relative  to  taxes 
in  certain  counties  of  this  state."  (Laws  of 
1869,  p.  1225.)  State  {Long  Dock  Co.,  Pros.) 
v.  Haight,  36  A''.  /.  L,  54. 

The  act  "  for  the  taxation  of  railroad  and 
canal  property,"  approved  April  10,  1884,  is 
not  in  contravention  of  the  provision  of  the 
Constitution  that  property  shall  be  assessed 
for  taxes  under  general  laws,  and  by  uni- 
form rules,  according  to  its  true  value. 
State  Board  of  Assessors  v.  Central  R.  Co., 
24  Am.  &*  Eng.  R.  Cas.  546,  48  N.  J.  L.  146, 
4  Atl.  Rep.  578;  reversing  48  N.  J.  L.  i,  2 
Atl.  Rep.  789.— Reviewing  State  (Jersey 
City  &  B.  R.  Co.,  Pros.)  v.  Mayor,  etc.,  of 
Jersey  City,  31  N.  J.  L.  575.— Quoted  in 
Central  R.  Co.  v.  State  Board  of  Assessors, 
49  N.  J.  L.  I. 

Under  the  Railroad  Taxation  Act  the 
taxes  imposed  are  one  tax,  and  the  fact  that 
under  the  act  railroad  and  canal  property 
pays  less  than  its  share  of  municipal  or 
county  tax,  as  compared  with  other  prop- 
erty, is  no  objection  to  the  law.   State  Board 


TAXATION,  40, 41. 


845 


of  Assessors  v.  Cintral  R.  Co,,  24  Am.  &*  Eng. 
Ji.  Cas.  546,  48  A'^.  /.  L.  146,  4  Atl.  Rep.  578 ; 
reversing  48  N,  /.  L.  \,2  Atl,  Rep.  789. 

Where  a  corporation  has  a  contract  for 
the  commutation  of  taxes  on  any  consid- 
eration whatever,  a  statute  levying  a  tax  of 
a  greater  amount,  or  upon  a  dif!erent  prin- 
ciple, than  is  expressed  in  the  contract, 
cither  upon  its  property  or  business  or  upon 
its  stocic,  is  in  conflict  with  the  federal  Con- 
stitution. State  Board  0/  Assessors  v.  Morris 
&*  E.  R.  Co.,  49  N.  J.  L.  193,  7  Atl,  Rep.  826. 

The  state  may  alter  modes  of  procedure 
which  do  not  affect  the  substantial  rights  of 
parties  under  the  contract,  and  a  change  in 
the  method  of  ascertaining  the  cost  of  a 
company's  road  for  the  purpose  of  taxation 
thereon  under  the  act  of  1865  would  not 
impair  the  obligation  of  a  contract.  The 
matter  is  wholly  within  legislative  discre- 
tion. State  Board  of  Assessors  v.  Morris 
&-  E.  R.  Co.,  49  ''/./.  /-.  193,  7  Atl.  Rep.  826. 

The  fourth  section  of  the  Tax  Act  of  1884 
is  unconstitutional,  being  an  attempt  to  sub- 
stitute, "as  a  correct  standard  of  value" 
for  railroad  property,  "  the  assessed  value 
of  the  real  estate  of  persons  other  than 
railroad  or  canal  corporations,"  instead  of 
the  true  value  of  the  railroad  property  itself, 
which  is  the  sole  basis  of  a  constitutional 
assessment  thereof.  Williams  v.  Bettle,  51 
N.  f.  L.  S12,  18  Atl.  Rep.  750. 

40.  New  York.  —  New  York  Act  of 
1853,  ch.  462,  which  gives  partial  exemption 
from  taxation  to  the  Troy  Union  railroad 
company,  is  within  the  power  of  the  legis- 
lature, and  is  not  unconstitutional  as  failing 
to  express  the  subject  matter  in  its  title. 
People  ex  rel.  v.  Carter,  52  Hun  458,  24  N. 
Y.  S.  R.  104,  5  N.  V.  Supp.  507 ;  affirmed 
in  117  A';  Y.  625,  mem.,  26  N.  Y.  S.  R, 
979,  22  N.  E,  Rep,  1128. — Distinguishing 
People  ex  rel.  v.  McLean,  80  N.  Y.  254. 

New  York  Act  of  1859,  entitled  "  An  act 
to  provide  for  the  closing  of  the  entrance 
of  the  tunnel  of  the  Long  Island  railroad 
company  in  Atlantic  street,  in  the  city  of 
Brooklyn,  and  restoring  the  street  to  its 
proper  grade,  and  for  the  relinquishmert 
by  said  company  of  its  right  to  use  steam 
power  within  the  said  city,"  is  valid  and 
within  the  taxing  power  of  the  legislature. 
It  is  not  unconstitutional  as  an  attempt  to 
exercise  the  power  of  eminent  domain  in 
providing  for  assessing  the  cost  upon  the 
property  in  the  vicinity.  Litckfuld  v.  Vtr- 
-non,  41  N.  Y.  123. 


The  system  of  taxing  corporations  under 
New  York  laws  by  dividing  the  assets  into 
ca[.ital  stock,  surplus  profits,  and  real  estate, 
and  taxing  each  of  these,  does  not  constitute 
such  discrimination  between  the  corpora- 
tion and  individuals  as  to  render  the  law 
obnoxious  to  the  fourteenth  amendment  to 
the  Constitution  of  the  United  States. 
Manhattan  R,  Co,  v.  Mayor,  etc.,  ofN,  K.,  13 
Am.  &*  Eng.  R.  Cas.  261,  18  Fed.  Rep.  195. 

N.  Y.  Const,  art.  7,  §  13,  declaring  that 
"every  law  which  imposes,  continues, or  re- 
vives a  tax  shall  distinctly  state  the  tax  and 
the  object  to  which  it  is  to  be  applied,  and 
it  shall  not  be  sufficient  to  refer  to  any  other 
law  to  fix  such  tax  or  object "  refers  to  state 
taxes  only.  Taxation  by  counties  and  cities 
is  regulated  by  other  provisions  of  the  Con- 
stitution. People  ex  rel.  v.  Havemeyer,  3 
Hun  (,N.  Y.)  97,  16  Abb.  Pr.  N.  S,  219,  4  T. 
&*  C.  365,  47  How.  Pr.  494. 

The  act  of  1880,  ch.  542,  §  3,  as  amended 
by  ch.  361  of  1881,  provides  that  if  a  corpo- 
ration makes  dividends  amounting  to  six 
per  cent,  or  more  on  the  par  value  of  its 
capital,  it  is  to  pay  one  fourth  of  one  mill 
upon  the  capital  stock  for  each  one  per 
cent,  of  dividends  so  made ;  and  that  if  no 
dividend  is  declared,  or  a  dividend  less  than 
six  per  cent.,  then  the  tax  shall  be  one  and 
one  half  mills  on  each  dollar  of  the  value  of 
the  stock.  During  a  certain  year  the  divi- 
dends made  by  defendant  company  were 
five  and  three  fourths  per  cent,  of  the  par 
value  of  its  stock,  and  the  actual  value  of 
the  stock  was  110.16.  Held,  that  a  tax  im- 
posed upon  such  actual  value  of  the  stock 
was  not  unequal  or  unjust.  People  v.  Dela^ 
ware  6-  H.  Canal  Co.,  54  Hun  598,  27  N.  Y. 
S.  R.  624,  7  N,  Y.  Supp,  890 ;  affirmed  in 
111  N.  Y,  666,  mem,,  24  N,  E,  Rep.  1093. 

41.  North  Carolina.  —The  tax  im- 
posed upon  "  deadheads "  by  the  act  of 
1860-61,  ch.  31,  §  12,  is  valid.  Such  a  tax  is 
not  a  "  capitation  tax,"  within  the  meaning 
of  the  Constitution,  art.  4,  §  8  (amendments 
of  1836),  nor  is  it  a  violation  of  the  charter 
of  the  Wilmington  and  Charlotte  railroad 
company.  Gardner  v.  Hall,  PAUL  (N. 
Car.)  21. 

A  clause  in  a  city  charter  which  author- 
izes the  mayor  and  aldermen  to  assess  the 
value  of  property  within  the  city  is  in  con- 
flict with  the  state  Constitution,  art.  5,  §  3, 
providing  that  all  property  shall  be  taxed 
by  a  uniform  rule,  as  other  provisions  of 
the  Constitution  require  city  taxes  to  be 


OR 


848 


TAXATION,  42-44. 


•  'il 


l\ 


;i 


levied  upon  valuations  made  by  township 
truitees.  Carolina  C.  X.  Co,  v.  Wilming- 
ton, 7a  A^.  Car.  73. 

So  much  of  the  act  of  1874-75,  ch.  184, 
(11,  subsec.  3,  as  provides  that  railroad  beds 
listed  for  taxation  "  shall  not  be  valued  at 
less  than  $8000  per  mile."  without  regard  to 
their  real  value,  is  in  conflict  with  the  Con- 
stitution, and  therefore  void.  Atlantic  &* 
N.  C.  R.  Co.  V.  Carttrtt  County  Com'rs,  75 
N.  Car.  474. 

A  law  to  provide  for  the  collection  of 
taxes  for  past  years  is  not  unconstitutional ; 
and  the  right  of  the  legislature  to  pass  such 
law  is  not  affected  by  the  lapse  of  time. 
Nor  does  such  law  (if  the  taxes  imposed  in 
the  years  mentioned  were  then  uniform  and 
equal)  violate  the  provisions  of  the  Consti- 
tution, art.  5,  §  3,  in  regard  to  uniformity  of 
taxation.  North  Carolina  R,  Co.  v.  Ala- 
mance Com'rs,  82  N.  Car.  259.— Quoted  in 
Jones  V.  Arrington,  91  N.  Car.  125. 

A  statute  imposing  a  tax  upon  the  gross 
receipts  of  some  railroad  companies  and 
upon  the  capital  stock  of  others  is  uncon- 
stitutional,  as  not  levying  taxes  by  a  uniform 
rule.  Worth  v.  Wilmington  &>  W.  R.  Co., 
13  Am.  6-  Eng.  R.  Cas.  286,  89  A^.  Car.  291, 
45  Am.  Rep.  679.— Quoting  Wilmington  & 
W.  R.  Co.  V.  Reid,  13  Wall.  (U.  S.)  266.— 
Followed  in  Worth  v.  Raleigh  &  G.  R. 
Co.,  89  N.  Car.  301. 

42.  North  Dakota.*  —  The  tax  of  a 
percentage  of  gross  earnings  imposed  upon 
railroad  companies  in  lieu  of  all  other  taxa- 
tion, by  the  Dakota  statute,  does  not  violate 
the  Territorial  Organic  Act,  §  6,  provid- 
ing that  there  shall  be  no  discrimination 
in  taxing  different  kinds  of  property,  but  all 
property  shall  be  taxed  in  proportion  to  its 
value ;  or  U.  S.  Const.,  fourteenth  amend- 
ment, providing  that  no  state  shall  deny  to 
any  person  the  equal  protection  of  its  laws. 
Northern  Pac.  R.  Co.  v.  Barnes,  53  Am.  5- 
£ng.  R.  Cas.  616,  2  N.  Dak.  310,  51  N.  W. 
Rep.  386.— Quoting  Wisconsin  C.  R.  Co. 
V.  Taylor  County,  52  Wis.  37,  8  N.  W,  Rep. 
833.  —  Followed  in  Northern  Pac.  R.  Co. 
V.  Barnes,  2  N.  Dak.  395 ;  Northern  Pac.  R. 
Co.  V.  Strong,  2  N.  Dak.  395 ;  Northern  Pac. 
R.  Co.  V.  Brewer,  2  N.  Dak.  396 ;  Northern 
Pac.  R.  Co.  V.  Tressler,  2  N.  Dak.  397. 

43.  Ohio.  — The  act  of  April  15,  1889, 
requiring  "every  corporation  or  company 
operating  a  railroad  or  any  part  of  a  rail- 

*  See  also  ante,  22. 


road  within  this  state  "  to  pay  to  the  com- 
missioner of  railroads  and  telegraphs  a 
"  fee  "  of  one  dollar  per  mile  for  each  mile 
of  track  operated  by  it  in  this  state,  contra- 
venes the  state  Constitution,  art.  12,  §§  2,  5. 
Pittsburgh,  C.  &*  St.  L.  R.  Co.  v.  State,  49 
Am.  &*  Eng.  R.  Cas.  503,  49  Ohio  St.  189,  30 
N.  E.  Rep.  435. 

44.  Pennsylvania.  —  (1)  Federal  de- 
cisions.—1)^^  act  of  February  23,  1866,  im- 
posing a  tax  on  the  gross  receipts  of  certain 
companies  incorporated  under  its  provi- 
sions, is  constitutional.  Philadelphia  S*  R. 
R.  Co.  V.  Com.,  IS  Wall.  (U.  S.)  284,4  Rrews. 
(Pa.)  222. 

The  power  of  taxation  of  a  state  is  limited 
to  persons,  propertj',  and  business  within 
her  jurisdiction.  All  taxation  must  relate 
to  one  of  these  subjects.  Cleveland,  P.  &* 
A.  R.  Co.  v.  Pennsylvania,  13  Wall.  {U.  S.) 
300,  4  Brews.  (Pa.)  183,  4  Am.  Ry.  Rep.  368. 

Bonds  issued  by  a  railroad  company  are 
property  in  the  hands  of  the  holders,  and 
when  held  by  non-residents  of  the  state  in 
which  the  company  was  incorporated,  they 
are  property  beyond  the  jurisdiction  of  the 
state.  Hence  the  law  of  Pennsylvania, 
passed  May  1,  1868,  which  required  the 
treasurer  of  a  company,  incorporated  and 
doing  business  in  that  state,  to  retain  five 
per  cent,  of  the  interest  due  on  bonds  of 
the  company  made  and  payable  out  of  the 
state  to  non-residents  of  the  state,  citizens 
of  other  states,  and  held  by  them,  is  not  a 
legitimate  exercise  of  the  taxing  power  of 
the  state.  It  is  a  law  which  interferes 
between  the  company  and  the  bondholder, 
and,  under  the  pretense  of  levying  a  tax, 
impairs  the  obligation  of  the  contract  be- 
tween the  parties.  Cleveland,  P.  6-  A.  R. 
Co.  V.  Pennsylvania,  15  Wall.  (U.  S.)  300,  4 
Brews.  {Pa.)  183,  4  Am.  Ry.  Rep.  368.— 
Approving  Northern  C.  R.  Co.  v.  Jackson, 
7  Wall.  262.  Disapproving  McKeen  v. 
Northampton  County,  49  Pa.  St.  519;  In  re 
Short's  Estate,  16  Pa.  St.  63.  Distinguish- 
ing Maltby  v.  Reading  &  C.  R.  Co.,  52  Pa. 
St.  140.— Followed  in  Pittsburgh,  Ft.  W. 
&  C.  R.  Co.  V.  Pennsylvania,  15  Wall.  326. 
Quoted  in  Worthington  v.  Sebastian,  25 
Ohio  St.  I.  Reviewed  in  United  States  v. 
Erie  R.  Co.,  9  Ben.  (U.  S.)  67. 

The  tax  laws  of  a  state  can  have  no  extra- 
territorial operations ;  nor  can  any  law  of  a 
state  inconsistent  with  the  terms  of  a  con- 
tract made  with  or  payable  to  parties  out  of 
a  sute  have  any  effect  upon  the  contract 


!l 


TAXATION,  44. 


847 


while  it  is  in  the  hands  of  such  parties,  or 
other  non-residents  of  the  state.  ClevelanJ, 
P.  &*  A.  R.  Co.  V.  Pennsylvania,  15  Wall. 
(U.  S.)  300,  4  Brews.  {Pa.)  183,  ^  Am.  Ry. 
Rep.  368. 

A  provision  in  the  charter  of  a  railroad 
company  that  it  shall  annually  pay  to  the 
state  a  specific  tax  of  one  fourth  of  one  per 
cent,  of  its  capital  stock  does  not  create 
such  a  contract  as  will  render  unconstitu- 
tional a  law  creating  an  additional  tax.  And 
this  is  true  of  a  consolidated  comp'-xny  com- 
posed of  said  company  and  two  others, 
where  the  act  of  consolidation  provides  that 
the  new  company  shall  "  be  entitled  to  all 
the  rights,  privileges,  and  immunities"  that 
each  and  all  of  them  possess.  Minot  v. 
Philadelphia,  W.  <&*  B.  R.  Co.,  18  Wall.{U. 
S.)  206,  7  Ant.  Ry.  Rep.  312;  affirmit^  7 
Phila.  {Pa.)  555.— DISAPPROVED  IN  Nichols 
V.  New  Haven  &  N.  Co.,  42  Conn.  103. 
Distinguished  in  Maine  C.  R.  Co.  v. 
Maine,  96  U.  S.  499.  Quoted  in  State  v. 
Philadelphia,  W.  &  B.  R.  Co.,  45  Md.  361 ; 
Wilmington  &  W.  R.  Co.  v.  Alsbrook,  1 10 
N.  Car.  137.  Reconciled  in  Wilmer  v. 
Atlanta  &  R.  A.  L.  R.  Co..  2  Woods  (U.  S.) 
447.  Reviewed  in  North  Carolina  R.  Co. 
V.  Alamance  Com'rs,  91  N.  Car.  454. 

State  tax  laws  have  no  extraterritorial 
ciTect ;  but  a  law  requiring  railroads  to  pay 
to  the  state  a  certain  tax  "on  the  actual 
cash  value  of  every  share  of  its  capital 
stock,"  and  if  the  road  lies  partly  out  of  the 
state,  then  to  pay  a  "  tax  on  such  number  of 
the  shares  *  ♦  *  as  would  be  in  that  pro- 
portion .  to  the  whole  number  of  shares 
which  the  length  of  the  road  ♦  ♦  ♦  within 
*  *  *  the  state  should  bear  to  the  whole 
length  of  such  road,"  is  not  invalid  because 
the  proportion  of  stock  held  by  stockholders 
out  of  the  state  is  greater  than  the  part  of 
road  out  of  the  state.  Minot  v.  Philadel- 
phia, W.  6*  B.  R.  Co.,  18  IVall.  {[/.  S.)  206. 
7  Am.  Ry.  Rep,  312 ;  affirming  7  Phila. 
{Pa.)  5SS. 

The  act  of  1868  is  not  unconstitutional  in 
that  it  impairs  a  supposed  obligation  of  tha 
state  not  to  impose  such  a  tax  on  the  Erie 
railroad.  Unless  a  state  has  in  clear  and 
unmistakable  language  exempted  a  corpora- 
tion from  taxation,  or  subjected  it  to  a 
limited  and  specified  taxation,  the  extent 
and  manner  of  taxing  belongs  exclusively 
to  the  state.  Said  company  is  not  found  to 
possess  any  such  exemption,  or  limited  tax- 
atioo.     Erie  R.  Co,  v.  Pennsylvania,  21 


Wall.  {U.  S.)  492, 6  Am.  Ry.  Rep.  206.— Dis- 
tinguishing New  York  &  E.  R.  Co.  v. 
Sabin,  26  Pa.  St.  244 ;  Erie  R.  Co.  v.  Com., 
66  Pa.  St.  84. 

The  Pa.  law  i.nposing  a  three-mill  tax  on 
the  face  value  of  railroad  and  corporation 
bonds,  irrespective  of  their  actual  value,  is 
not  in  violation  of  the  fourteenth  amend- 
ment to  the  United  States  Constitution, 
guaranteeing  equal  protection  of  the  law. 
Tlie  law  is  valid  so  long  as  it  applies  to  all 
corporations  alike.  States  may  designate 
taxpayers  by  classes,  and  it  is  sufficient  if 
the  tax  on  each  class  is  equal  and  uniform. 
Bell's  Gap  R,  Co.  v.  Pennsylvania,  134  U.  S. 
232,  10  Sup.  Ct.  Rep.  533,— Followed  in 
Chester  City  v.  Pennsylvania,  134  U.  S.  240. 

The  Pa.  law  imposing  a  three-mill  tax  on 
railroad  bonds,  and  requiring  the  account- 
ing officers  of  the  railroads  to  deduct  the 
tax  from  the  annual  interest,  and  pay  the 
same  into  the  state  treasury,  is  not  in  con- 
flict with  the  United  States  Constitution,  as 
taking  property  without  "due  process  of 
law."  No  personal  notice  to  the  bondholders 
is  necessary.  Belts  Gap  R.  Co.  v.  Pennsyl- 
vania, 134  U,  S.  232,  10  Sup.  Ct.  Rep.  533. — 
Following  First  Nat.  Bank  v.  Kentucky, 
9  Wall.  (U.  S.)  353. 

Such  a  law  is  not  open  to  the  objection 
tliat  it  taxes  a  railroad  for  property  which  it 
does  not  own.  The  tax  is  not  on  the  com- 
pany, but  on  the  bondholders,  and  the  re- 
quirement that  the  company  shall  pay  the 
tax  to  the  state  only  provides  a  convenient 
and  secure  method  of  collection.  Belts  Gap 
R.  Co.  V.  Pennsylvania,  134  U,  S.  232,  10 
Sup.  Ct.  Rep.  533. 

(2)  State  decisions.  — The  act  of  May  16, 
1857,  providing  for  the  sale  of  what  is 
known  as  the  main  line  of  public  improve- 
ments, composed  of  certain  lines  of  rail- 
'.oad,  canal,  and  slack-water  improvements 
belonging  to  the  state,  is  unconstitutional 
in  so  far  as  it  provides  that  if  a  certain  rail- 
road company  shall  become  the  purchaser 
it  shall  pay,  in  addition  to  the  purchase 
money,  $1,500,000,  in  consideration  whereof 
it  and  another  company  named  shall  be 
discharged  by  the  state  forever  from  the 
payment  nf  all  taxes,  except  for  certain 
lo^'al  purposes.  Mott  v.  Pennsylvania  R. 
Co.,  30  Pa.  St,  9. 

Pennsylvania  Act  of  April  29,  1844,  im- 
posinf,'  a  tax  upon  the  bonds  of  corfwrations, 
and  requiring  the  financial  officers  of  the 
corporations  to  retain  the  amount  of  the 


& 


IBM 


■i^l 


848 


TAXATION,  46. 


'  I 


M  t 
<l  > 
II     I 

I! 
'I ' 

:» ! 


II  1 


tax  from  the  interest  due  on  the  bonds,  is 
not  unconstitutional  as  impairing  the  obli- 
gation of  the  contracts  between  tlie  corpo- 
rations and  the  bondholders.  Maltby  v. 
Reading  &*  C.  A".  Co.,  $2  Pa.  St.  140.— Dis- 
tinguished IN  Cleveland,  P.  &  A.  R.  Co. 
V.  Pennsylvania,  1$  Wall.  (U.  S.)  300.  Fol- 
lowed IN  Pittsburg,  Ft.  W.  &  C.  R.  Co.  v. 
Com.,  3  Brews.  (Pa.)  355 ;  Pittsburg,  Ft.  W. 
&  C.  R.  Co.  V.  Com.,  66  Pa.  St.  73.— Dela- 
ware, L.  &*  W.  R,  Co.  V.  Com.,  66  Pa.  St.  64. 

The  acts  of  April  30,  1864,  and  of  May  i, 
1868,  in  imposing  a  tax  upon  the  bonds  of 
non-resident  bondholders,  do  not  impair 
the  obligation  of  contracts.  Buffalo  &*  E. 
R.  Co.  V.  Com.,  3  Brews.  (Pa.)  374. 

A  tax  under  the  act  of  June  1,  1889,  §  27, 
upon  the  net  earnings  or  income  of  trust 
companies,  which  have  no  capital  stock,  is 
a  tax  on  the  franchise,  and  therefore  not 
double  taxation,  although  the  net  income 
or  earnings  were  derived  from  the  interest 
on  bonds  taxable  under  the  act  of  1885. 
Com.  v.  New  York,  L.  E.  &*  W.  R.  Co.,  150 
Pa.  St.  234,  24  Atl.  Rep.  609.— Following 
Philadelphia  Contributionship  for  Ins.,  etc., 
V,  Com.,  98  Pa.  St.  48. 

The  provisions  of  the  act  of  June  30, 
1885,  §  4,  requiring  the  treasurers  of  corpo- 
rations to  iisscss  a  three-mill  tax  upon  the 
nominal  value  of  corporate  loans,  to  deduct 
the  same  from  the  interest  paid  thereon, 
and  to  return  it  into  tlic  state  treasury,  does 
not  violate  tlic  Constitution,  art.  9,  §  1,  re- 
quiring taxes  to  be  uniform.  Com.  v.  Dela- 
ware Div.  Canal  Co.,  123  Pa.  St.  594,  16 
Atl.  Rep.  584.  —  Followed  in  Com.  v. 
Lehigh  Valley  R.  Co..  129  Pa.  St.  429,  25 
W.  N.  C.  15, 18  Atl.  Rep.  406:  Com.  v.  New 
York,  L.  E.  &  W.  R.  Co.,  129  Pa.  St.  463.— 
Com.  v.  Lehigh  Valley  R.  Co.,  129  Pa.  St. 
429,  25  W.  N.  C.  IS.  18  Atl.  Rep.  406.— 
Followed  in  Com.  7/.  Delaware,  L.  &  W. 
R.  Co.,  129  Pa.  St.  458;  Com.  v.  North  Pa. 
R.  Co.,  129  Pa.  St.  460. 

Nor  are  said  provisions  repuo^nant  to  art. 
I,  §  10,  art.  5,  and  art.  14,  §  i,  >i  the  amend 
mcnts  of  the  Constitution  of  the  United 
States,  respectively,  prohibiting  the  impair- 
ment of  the  obligations  of  contracts  and 
the  deprivation  of  property  without  due 
process  of  law,  etc.  Com.  v.  Delaware  Div. 
Canal  Co.,  123  Pa.  St.  594,  16  Atl.  Rep.  584. 
Com.  v.  Lehigh  Valley  R.  Co.,  129  Pa.  St. 
429,  25  W.  N.  C.  15,  18  Atl.  Rep.  406.— 
Followed  in  Com.  v.  New  York,  L.  E.  & 
W.  R.  Co..  129  Pa.  St.  463. 


As  the  receipts  for  transportation  by  a 
company  paying  the  tolls  -^re  taxable  against 
that  company,  and  the  tolls  paid  are  tax- 
able against  the  company  receiving  them, 
it  is  not  a  case  of  double  taxation,  in  viola- 
tion of  the  state  Constitution,  art.  9,  §  i, 
providing  that  "all  taxes  shall  be  uniform." 
Com.  V.  New  York,  P.  6*  0.  R.  Co.,  145  Pa. 
St.  38,  22  Atl.  Rep.  212. 

The  act  of  June  30,  1885,  does  not  violate 
any  provision  of  the  Constitution  of  the 
state  or  of  the  United  States  or  its  amend- 
ments. Com.  V.  Delaware  &*  H.  Canal  Co., 
1 50  Pa.  St.  245,  24  Atl.  Rep.  599. 

The  acts  of  June  30,  1885,  and  of  June  1, 
1889,  are  not  in  conflict  with  the  state  Con- 
stitution, art.  9,  §  I,  requiring  uniformity  of 
taxation  ;  nor  with  the  implied  prohibition 
against  extraterritorial  taxation,  contained 
in  the  Federal  Constitution ;  nor  with  art.  % 
and  art.  14,  §  1,  of  the  amendments  to  the 
Constitution  of  the  United  States,  provid- 
ing for  due  process  of  law  and  equal  pro- 
tection;  nor  with  art.  i,  §  10,  of  tlic  U.  S. 
Constitution,  as  an  impairment  of  the  obli- 
gation of  the  charter  contract  with  the 
foreign  state;  nor  with  the  contract  con- 
tained in  the  legislation  of  this  state,  which, 
in  admitting  the  corporation  to  do  busi- 
ness, did  not  impose  any  condition  that  the 
company  should  act  as  collector  of  state 
taxes;  nor  as  impairing  the  obligation  of 
contracts  between  the  corporation  and  its 
creditors  or  the  holder  of  the  coupon  ;  nor 
do  said  acts  violate  the  commerce  clause  of 
the  Constitution  of  the  United  States.  Com. 
v.  New  York,  L.  E.  &>  W.  R.  Co.,  .150  Pa. 
St.  234,  24  Atl.  Rep.  609. 

45.  South  Carolina.  —  A  tax  to  pay 
the  entire  salaries  and  expenses  of  a  railroad 
commission,  assessed  against  railroad  com- 
panies according  to  their  gross  income  and 
proportioned  to  the  number  of  milesof  track 
in  the  state,  in  addition  to  other  taxes,  is 
not  in  violation  of  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United 
States,  nor  of  a  provision  of  the  Constitution 
of  South  Carolina  that  "  taxation  of  property 
shall  be  equal  and  uniform  and  proportioned 
to  its  value."  Charlotte,  C.  &^  A.  R.  Co.  v. 
Gib^es,  48  Am,  &*  Eng.  R.  Cas.  595, 142  U.  S. 
386, 12  Sup.  Ct.  Rep.  255. 

A  tax  imposed  by  the  state  "  on  the  gross 
amount  of  the  receipts  of  express  compa- 
nies "  is  to  be  understood  as  assessed  upon 
the  gross  sum  received  within  the  state  on 
account  of  the  company  that  is  doing  bust- 


TAXATION,  40,  47. 


849 


ation  by  a 
))le  against 
id  are  tax- 
ring  them, 
I,  in  viola- 
art.  9.  §  I, 
!  uniform." 
^o.,  145  ^''• 

not  violate 
on  of  the 
its  amend- 
Canal  Co., 

of  June  I, 
state  Con- 
iformity  of 
>'ohibition 

contained 
with  art.  $ 
nts  to  the 
es,  provid- 
equiil  pro- 

tiie  U.  S. 
)f  the  obli- 

with  the 
itract  con- 
ate,  which, 
b  do  busi- 
}n  that  the 
)r  of  state 
ligation  of 
on  and  its 
•upon ;  nor 
:e  clause  of 
ates.  Coin, 
'o. ,  1 50  Pa. 

tax  to  pay 
:  a  railroad 
Iroad  com- 
ncome  and 
les  of  track 
!r  taxes,  is 
ih  amend- 
le  United 
institution 
)f  property 
>portioned 
.  A\  Co.  V. 
;,  142  C/.  S. 

1  the  gross 
;ss  compa- 
issed  upon 
le  state  on 
loing  busi- 


ness wiiliiu  the  state,  excluding  sui h  shaie 
of  the  actual  collections  as  belongs  to  the 
railroad  and  other  companies  by  airangc- 
ment  with  which  tflic  transportation  of  the 
express  matter  is  cflcctcu,  as  well  as  such 
portion  as  is  received  for  the  use  of  foreign 
connecting  express  companies;  and  such 
tax  is  not  prohibited  by  any  provisions  of 
the  Constitution  of  the  United  States,  or  of 
the  state.  It  is  not  a  regulation  of  "  com- 
merce among  the  states,"  nor  a  duty  on  im- 
ports or  exports.  Southern  Exp.  Co.  v. 
Hood,  1$  Rich.  (So.  Car.)  66. 

A  statute  which  requires  every  railroad 
company  in  the  state  to  pay  to  the  state  a 
certain  amount,  determined  by  the  length  of 
its  road,  is  a  tax  upon  property  and  is  in 
violation  of  the  provision  of  the  Constitu- 
tion requiring  all  property  subject  to  taxa- 
tion to  be  taxed  in  proportion  to  its  value  ; 
and  the  statute  is  not  rendered  valid  by 
styling  it  "  a  general  license  law,"  S(a/e  v. 
South  Carolina  K.  Corp. ,  4  So.  Car.  376. 

40.  Tennessee— Tenn.  Railroad  Taxa- 
tion Act  of  1875,  §  II,  provided  that  rail- 
roads accepting  that  section  as  an  amend- 
ment to  their  charters  should  be  exempt 
from  taxation  except  as  therein  provided. 
The  supreme  court  of  the  state  held  the 
section  unconstitutional,  under  the  Con- 
stitution of  1870,  which  required  all  prop- 
erty to  be  uniformly  taxed,  and  in  1877 
the  section  was  repealed,  and  provision 
made  for  a  new  assessment  of  companies 
that  had  accepted  its  provisions.  HiM,  that 
the  acceptance  by  a  company  of  the  act  of 
1875  did  not  constitute  a  contract  the  obli- 
gation of  which  could  not  be  impaired  by 
the  act  of  1877.  Memphis  &•  C.  li.  Co.  v. 
Gaines,  97  U.  S.  697. 

Under  the  act  of  March,  1875,  §  "• 
wherein  the  mode  and  manner  for  the  taxa- 
tion of  railroads  are  provided,  to  wit : 
authorizing  railroads  to  pay  one  and  a  half 
per  cent,  on  their  gross  earnings,  thereby 
exempting  all  of  the  property  of  such  com- 
panies as  accept  the  conditions  of  said  sec- 
tion from  taxation,  according  to  the  value 
of  the  company's  property,  equal  and  uni- 
form with  other  taxation  of  property 
throughout  the  state,  is  unconstitutional, 
because  said  section,  in  effect,  for  a  consid- 
eration, contracts  not  to  tax  railroad  com- 
panies at  all.  Ellis  v.  Louisville  &*  N.  R. 
Co.,  8  Baxt.  (Tenn.)  530. 

Statutes  authorizing  reassessment  of 
property  originally  assessed  upon  inadequate 
7  D.  R.  D.— 54 


valuation  are  valid  and  constitutional.  South 
Nashville  .SV.  A'.  Co.  v.  Morroiv,  39  Am.  &* 
Ehj[.  li.  Cas.  518.  87  Tenn,  406,  2  L.  R.  A. 
853,  1 1  S.  ll\  Rep.  348. 

A  statute  which  requires  corporations  to 
pay  a  tax  upon  the  value  of  their  property, 
and  also  taxes  the  stocl<holders  upon  the 
value  of  their  shares,  neither  imposes  double 
taxation  nor  violates  the  constitutional 
mandate  that  "  all  property  shall  be  taxed 
according  to  value."  South  Nashville  St. 
R.  Co.  v.  Morrow,  39  Am.  «S>»  Enjg^,  R.  Cas, 
518,  87  Tenn.  406,  2  L.  R.  A.  853,  \\  S.  W. 
Rep.  348. 

A  privilege  tax  on  the  running  and  using, 
on  railroads  in  this  state,  of  sleeping  cars 
not  owned  by  the  railroads  is  constitutional 
and  valid,  although  the  owner  may  be  a 
foreign  corporation,  and  the  cars  may  be 
used  for  the  accommodation  of  passengers 
traveling  through  the  state.  Pullman  South- 
ern Car  Co,  v.  Gaines,  3  Tenn.  Ch.  587. — Dis- 
APPROVKD  IN  Pickard  v.  Pullman  Southern 
Car  Co.,  117  U.  S.  34.  Followed  in  Gib- 
son County  v.  Pullman  Southern  Car  Co., 
42  Fed.  Rep.  572. 

A  statute  which  attempts  to  exempt  the 
property  of  a  railroad  company  from  all 
other  taxation,  on  condition  that  it  will  ac- 
cept an  amendment  to  its  charter  and  pay  a 
certain  per  cent,  of  its  gross  receipts  to  the 
state,  is  in  violation  of  Tennessee  Constitu- 
tion of  1870,  which  provides  that  "all  prop- 
erty shall  be  taxed."  Memphis  «&*  C.  R.  Co. 
V.  Gaines,  3  Tenn.  Ch.  604. 

47.  Texas. — Taxes  are,  within  the  mean- 
ing of  the  Constitution,  "equal  and  uni- 
form "  when  no  person  or  class  of  persons 
in  the  territory  taxed  is  taxed  at  a  higher 
rate  than  are  other  persons  in  the  same  dis- 
trict upon  the  same  value  or  thing,  and 
when  the  objects  of  taxation  are  the  same, 
by  whomsoever  owned  or  whatever  they  be. 
Norris  v.  IVaco,  57  Tex.  635. 

The  tax  of  a  certain  sum  per  mile.  Im- 
posed by  the  act  of  March  24,  1S81,  upon 
firms,  persons,  or  associations  owning  or 
running  sleeping  or  dining  cars  not  owned 
by  the  railroad  company  in  the  state,  is  an 
"  occupation  tax  "  within  the  meaning  of  the 
state  Constitution,  art.  8,  §  5,  declaring  that 
"all  occupation  taxes  shall  be  equal  and 
uniform  upon  the  same  class  of  subjects 
within  the  limits  of  the  authority  levying  the 
same,"  and  is  unconstitutional.  Pullman 
Palace  Car  Co.  v.  State,  29  Am.  &•  Eng.  R. 
Cas.   194,  64  Tex.  274,  53  Am.  JUp.  758.— 


fie 

IS 


K^' '     ill 


1!  II 


ii       I. 


ml 


II  e 

II  i: 
li » 


'■n\ 


ili 


850 


TAXATION,  48-53. 


Not  followed  in  Gibson  County  v.  Pull- 
man Southern  Car  Co.,  42  Fed.  Rep.  572. 

48.  Voniiont.  —  A  state  law  levying  a 
tax  upon  the  gross  receipts  of  railroad  com- 
panies, and  providing  that,  in  case  of  a  rail- 
road operated  under  lease,  the  tax  sliall  be 
paid  by  the  lessor  and  deducted  from  the 
rent  covenanted  for  in  the  lease,  is  not  un- 
constitutional as  against  the  lessor  in  that  it 
impairs  the  obligation  of  the  contract.  The 
state  mi«y  adopt  that  method  of  collecting 
the  tax  from  the  lessor.  Vermont  &*  C.  A'. 
Co.  V.  Central  Vt.  R.  Co.,  46  Am.  &•  Eng.  R. 
Cat.  646,  63  Vt.  I,  21  Atl.  Rep.  262.  731. 

Such  a  law  is  unconstitutional  as  a  regula- 
tion of  commerce  in  so  far  as  it  taxes  gross 
receipts  derived  from  interstate  business. 
Vermont  fi-  C.  R.  Co.  v.  Central  Vt.  R,  Co. 
46  Am.  6*  Eng.  R.  Cas.  646,  63  Vt.  i,  21 
Atl.  Rep.  262,  73 '• 

40.  Yiri^iiiia.  —  The  provisions  of  the 
Constitution  requiring  taxation  to  be  equal 
and  uniform,  and  that  all  property  shall  be 
taxed  in  proportion  to  its  value,  relate  to 
taxation  for  the  purposes  of  revenue  and 
not  to  special  assessments  by  municipal 
corporations  for  local  improvements.  Rich- 
mond &*  A.  R.  Co.  V.  Lynchburg,  81  Va. 
473._QnOTiNG  Norfolk  City  v.  Ellis,  26 
Gratt.  (Va.)  224. 

50.  Wftsliington.— The  act  of  Novem- 
ber 28,  1883, known  as  the  "Gross  Earnings 
Law,"  which  exempts  railroad  property 
from  taxation  and  substitutes  a  tax  upon 
the  gross  earnings  of  railroads,  is  not 
in  conflict  with  the  Organic  Act,  §  1924, 
requiring  all  taxes  to  be  equal  and  uniform, 
and  that  no  distinction  between  different 
kinds  of  property  be  made  in  the  assess- 
ments. Columbia  6-  P.  S.  R.  Co.  v.  Chil- 
berg,  6  Wash.  612,  34  Pac.  Rep.  163. 

51.  West  Virginia.  — The  state  Con- 
stitution  says  that  "  all  property,  both  real 
and  personal,  shall  be  taxed,"  with  cer- 
tain specified  exceptions.  Held,  that  the 
act  of  March  i,  i866,  exempting  the  prop- 
erty of  a  certain  railroad  from  taxation 
until  the  profits  should  equal  ten  per  cent, 
of  its  capital,  was  unconstitutional  and 
void.  Chesapeake  &*  O.  R.  Co.  v.  Miller,  19 
IV.  Va.  408.  — Distinguishing  Com.  v. 
Chesapeake  &  O.  R.  Co.,  27  Gratt.  (Va.)  352. 

52.  Wisconsin.— The  act  of  1854,  im 
posing  a  tax  upon  railroad  property,  is  not 
violative  of    the    "uniformity"  clause  of 
the  Constitution.    Milwaukee  &»  M.  R.  Co. 
T.  Waukesha  County  Sitp'rs,  9  Wis.  43«.  «• 


III.  INTZBPBETATION  OF  TAX  LAWS. 

(i',\.  In  Konorni.*— Connecticut  Act  of 
1864,  providing  that  railroads  shall  pay  a 
tax  of  one  fourth  of  one  per  cent,  on  the 
market  value  of  their  caipital  stock  and 
their  funded  and  floating;  debt,  which  shall 
take  the  place  of  all  otiicr  taxes,  exempts  the 
property  of  such  comfianics  from  all  other 
taxation  whether  it  is  used  for  railroad  pur- 
poses or  not.  Osborn  v.  New  York  &*  N, 
H.  R.  Co.,  40  Conn.  491,  5  Am.  Ry.  Rep.  218. 

The  object  of  Ga.  Act  of  1874  was  to 
make  more  searching  and  sweeping  pro- 
visions in  respect  to  the  taxation  of  rail- 
roads by  the  state,  and  to  compel  more  full 
and  specific  returns;  it  was  not  the  inten- 
tion of  that  act  to  exempt  such  property  of 
railroad  companies  from  taxation  as  was 
previously  subject  thereto,  such  as  town 
lots  laid  off  for  sale.  Savannah,  F.  &*  W, 
R.  Co.  V,  Morton,  71  Ga.  24. 

A  company  incorporated  before  the  revi- 
sion of  the  Michigan  statutes  in  1846,  and 
whose  charter  is  silent  as  to  taxation,  is  liable 
to  pay  the  specific  tax  imposed  by  Rev.  St. 
121,  ch.  21,  §  5.  People  v.  Detroit  5-  P.  R. 
Co.,  I  Mich.  458. 

The  provision  of  Miss.  Const,  art.  12, 
§  13,  that  "the  property  of  all  corporations 
for  pecuniary  profit  shall  be  subject  to  taxa- 
tion the  same  as  that  of  individuals "  is 
mandatory  as  to  the  liability  of  such  prop- 
erty to  taxation,  but  is  permissive  as  to 
whether  the  legislature  shall  tax  it  the  same 
as  property  of  individuals  or  exempt  it. 
Mississippi  Mills  v.  Cook,  56  Miss.  40. 

Where  an  act  is  required  to  be  done 
annually,  and  no  day  is  designated,  either  in 
express  words  or  by  implication,  for  the 
beginning  of  the  year,  it  will  ordinarily  be 
presumed  that  the  calendar  year  was  in- 
tended. So  where  a  statute  imposes  a  tax 
of  so  much  per  annum  upon  corporations 
but  does  not  designate  the  beginning  of  the 
tax  year,  it  will  be  treated  as  a  tax  for  the 
calendar  year.  Com.  v.  Lehigh  Valley  R. 
Co.,  129  Pa.  St.  429.  47  Phila.  Leg.  Int.  406, 
25  W.  N.  C.  15,  18  Atl.  Rep.  406.— Fol- 
lowed IN  Com.  V.  New  York,  L.  E.  &  W. 
R.  Co.,  129  Pa.  St.  478. 

In  construing  a  legislative  act  which  in- 
corporated within  city  limits  property  used 
exclusively  for  rural   purposes,  it  will  be 

*  New  York  Act  of  1880  concerning  state  tax- 
ation of  corporations  construed,  ice  note,  i  L. 
R.  A.  260. 


TAXATION,  54-57. 


8A1 


LAWB. 

lit  Act  of 
lall  pay  a 
It.  on  the 
itock  and 
hich  shall 
tempts  tlie 
I  all  other 
Iroad  pur- 
ork  &*  N. 
.  Kfp.  218. 
1\  was  to 
ping  pro- 
in   of  rail- 

more  full 
the  inten- 
roperty  of 
)n  as  was 
1   as  town 

F.&*  W. 

;  the  revi- 
1846.  and 
>n,  is  liable 
ly  Rev.  St. 
it  &*  P.  R. 

t.  art.  12, 
rporations 
ct  to  taxa- 
idiials  "  is 
luch  prop- 
jive  as  to 
t  the  same 
exempt  it. 
s.  40. 

I  be  done 
d,  either  in 
m,  for  the 
linarily  be 
ar  was  in- 
loses  a  tax 
rporations 
ning  of  the 
ax  for  the 
Valley  B, 
^.  Int.  406, 
^o6. — FoL- 
L.  E.  &  W. 

which  in- 
perty  used 
it  will  be 

ig  state  tax- 
note,  I  L. 


concluiively  presumed,  on  a  question  of 
taxation,  that  the  legislature,  in  passing  the 
act,  determined  with  a  view  solely  to  the 
public  good  the  benefits  to  accrue  to  the 
public  and  to  the  property  owner.  It  would 
be  a  usurpation  of  power  by  the  judiciary 
were  it  to  assume  the  right  to  revise  the 
legislative  action  because  of  the  inequality 
of  benefits  resulting  from  municipal  taxa- 
tion of  such  property,  Norn's  v.  Waco,  57 
Ttx.  635. 

54.  As  to  purpose  of  the  tax.  — 
Under  Ky.  Act  of  April  3,  1878,  providing 
for  ihe  taxation  of  railroads,  which  requires 
a  return  to  the  state  auditor  showing  the 
length  of  roads  in  each  county,  city,  and 
incorporated  town,  and  providing  further 
that  rolling  stock  and  real  estate  of  rail- 
roads shall  be  taxed  for  each  "  county,  city, 
town,  or  precinct  in  which  any  portion  of  the 
road  is  located,"  a  public  school  district  is 
not  a  precinct  within  the  meaning  of  the 
act,  and  railroads  cannot  be  assessed  for 
school-district  purposes.  LouimilU  &*  N. 
R.  Co.  V.  Johnson,  {Ky.)  11  S.  IV.  Rtp.  666. 

56.  As  to  taxation  of  road  not 
wholly  within  the  state.  —  Mo.  Act  of 
March  24,  1870,  provides  generally  for  the 
building,  leasing,  and  selling  of  railroads, 
both  in  and  out  of  the  state,  so  as  to  make 
connections  with  roads  in  the  state,  and 
then  provides  that  "  if  a  railroad  company 
of  another  state  shall  lease  a  railroad,  the 
whole  or  a  part  of  which  is  in  this  state,  or 
make  arrangement  for  operating  the  same 
as  provided  in  this  act,  *  *  *  such  part  as 
is  in  the  state  shall  be  subject  to  taxation." 
Held,  that  as  the  act  provides  for  operating 
roads  by  building  and  purchasing  as  well 
as  by  leasing,  the  provision  as  to  taxation 
applies  to  a  road  sold  to  a  company  of  an- 
other state.  Chicago,  B.  &*  K.  C.  R.  Co.  v. 
Guffey,  122  U.  S.  561,  7  Sup.  Ct.  Rep.  1300. 

Va.  Act  of  1881-82,  ch.  119,  only  applies 
to  the  taxation  of  corporations  of  that  state, 
and  does  not  apply  to  the  rolling  stock  of  a 
railroad  organized  in  Maryland,  but  used 
in  operating  a  road  in  Virginia.  Marye  v. 
Baltimore  &»  O.  R.  Co.,  127  [/.  S.  117,  8 
Sup.  Ct.  Rep.  1037.— Distinguished  in 
Pullman  Palace-Car  Co.  v.  Board  of  As- 
sessors, ;;  Fed.  Rep.  206. 

60.  State  and  county  taxes.  —  The 
court  of  appeals  of  Kentucky  decided  in 
1868  that  a  portion  of  a  railroad  in  a  county 
was  not  a  part  of  the  county  property  as  to 
county  taxation,  but  was  an  entirety  and 


liable  in  its  consolidated  charactrr  for  state 
revenue  only.  This  case  was  followed  by 
another  to  the  same  effect,  and  the  law  re- 
mained as  declared  by  ihc  court  uf  appeals 
until  1876,  So  much  of  appellee's  road  as 
is  in  Franklin  county  was  not  assessed  for 
county  taxes  for  the  years  1868  to  1875,  in- 
clusive, and  the  county  now  seeks  to  collect 
taxe:i  lUcreon  for  those  years.  Held,  that 
while  tiie  court  is  of  opinion  that  the  law 
^"ns  misinterpreted,  yet  as  iippcllee  complied 
Lilly  with  the  tvisting  law  as  interpreted 
by  the  liighcsi  court  in  the  state,  no  more 
should  1.  J  required  of  it.  Franklin  County 
Court  v.  Louisville  &*  N.  R.  Co.,  25  Am.  &* 
Eng.  R.  Cas,  535,  84  Ky.  59.— Reviewing 
AND  Criticising  Applegate  v.  Einst,  3 
Bush  (Ky.)  648;  Louisville  &  N.  R.  Co.  v. 
Warren  County  Court,  5  Hush  243. 

Although,  by  the  amended  charter  of  the 
Pacific  Railroad  Company  (Sess.  Acts  1851, 
p.  271,  §6)  and  the  laws  applicable  to  said 
road  (Sess.  Acts  1853,  p,  13,  §  12),  provision 
was  simply  made  for  the  payment  by  the 
corporation  of  state  taxes,  nevertheless, 
under  the  Constitution  (art.  11,  §  16)  and 
the  general  statute  (2  Wagn.  St.  11 59-61, 
§§  >-9)i  the  company  was  liable  for  county 
taxes.  State  v.  Dulle,  48  Mo.  282.— Re- 
viewed IN  Atlantic  &  P.  R.  Co.  v.  Cleino, 
2  Dill.  (U.  S.)  175. 

The  provision  of  Tennessee  Code  that  the 
property  taxable  or  exempt  from  taxes  for 
county  purposes  is  the  same  as  that  for  state 
revenues  is  merely  a  declaration  as  to  what 
was  then  liable  to  taxation,  and  does  not  lay 
down  a  rule  which  makes  all  property  taxed 
by  the  state  liable  for  couniy  taxes.  Gibson 
County  v.  Pullman  Southern  Car.  Co.,  43 
Fed.  Rep.  572 

57.  Tax  on  dividends  or  interest. 
— The  Act  of  Congress  of  July  14, 1870,  §  15, 
imposing  a  tax  of  two  and  one  half  per  cent. 
"  for  and  during  the  year  1871  "  on  the 
amount  of  interest  or  coupons  paid  on 
bonds,  and  on  undivided  profits  of  corpora- 
tions, does  not  apply  to  interest  on  railroad 
bonds  earned  by  the  company  during  the 
year  1871,  but  not  payable,  by  the  terms  of 
the  coupon,  until  January  i,  1872.  United 
States  v.  Indianapolis  &*  St.  L.  R.  Co.,  113 
U.  S.  711,  5  Sup.  Ct.  Rep.  716. 

The  charter  of  a  company  provided  that 
when  the  dividends  exceeded  six  per  cent, 
per  annum  on  the  capital  stock,  six  percent, 
on  the  dividends  should  be  paid  to  the  city. 
Held,  that  the  capital  paid  in  and  not  the 


s 


Sin 


89 


I 


!" 


852 


TAXATION,  58,  69. 


tl 


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II  « 

II :. 


authorized  capital  was  intended.  Philadel- 
phia V.  Philadelphia  6-  G.  F.  Pass.  K.  Co., 
$2Pa.Sf.  177.— Followed  in  Philadelphia 
V.  Ridge  Ave.  Pass.  R.  Co.,  103  Pa.  Jt.  190. 

A  supplement  provided  that  that  part  of 
the  charter  as  to  "  tax  on  dividends  *  *  * 
shall  be  so  construed  as  to  apply  to  the 
authorized  capital  of  the  company."  Held, 
that  this  provision  was  prospective  only,  and 
did  not  apply  to  a  tax  already  due.  Phila- 
delphia V.  Philadelphia  &»  G.  F.  Pass.  K. 
Co.,  52  Pa.  St.  177. 

68.  School  taxes.  — The  school  taxes 
on  a  roadbed,  apportioned  to  a  county,  are 
properly  distributed  to  the  school  districts 
therein  in  the  proportion  that  the  number 
of  school  children  in  each  district  bears  to 
the  whole  number  in  the  county  ;  and  Mo. 
Act  of  1875  providing  for  such  distribution 
is  not  unconstitutional,  as  giving  a  portion 
of  the  taxes  levied  upon  property  in  one 
district  to  another.  In  re  Kailroad  School 
Tax,  17  Am.  &»  Eng.  R.  Cas.  491,  78  Mo. 
596.— Quoting  State  ex  rel.  v.  Severance,  55 
Mo.  388 ;  Washington  County  v.  St.  Louis 
&  I.  M.  R.  Co..  58  Mo.  376.— Followed  in 
Chicago  &  A.  R.  Co.  v.  Lamkin,  97  Mo.  496, 
10  S.  W.  Rep.  200. 

School  taxes,  under  the  revenue  law  of 
this  state  (Mo.  Rev.  St.  §  6880),  canno^.  be 
levied  on  railroad  property  for  building 
houses,  or  for  paying  past  indebtedness. 
Such  levy  can  be  made  only  for  school  pur- 
poses proper.  State  ex  rel.  v.  Wabash,  St. 
L.  6-  P.  R.  Co.,  83  Mo.  395.— Followed  in 
State  ex  rel.  v.  Wabash,  St.  L.  &  P.  R.  Co., 
90  Mo.  166.  Reviewed  in  Chicago  &  A. 
R.  Co.  V.  Lamkin,  97  Mo.  496,  10  S.  W. 
Rep.  200. 

Taxes  for  building  school-he  uses  cannot 
be  levied  on  railroad  property.  Stale  ex 
rel.  V.  Wabash,  St.  L.  &»  P.  R.  Co.,  90  Afo. 
166,  2  S.  W.  Rep.  275.— Following  State 
ex  rel.  v.  Wabash,  St.  L.  &  P.  R.  Co.,  83 
Mo.  395. 

The  property  of  defendant  being  subject 
to  taxation  for  school  purposes  for  the 
years  1 867-1 872  was,  under  the  act  of  1871, 
§  3,  liable  for  school  taxes  for  those  years, 
although  not  subject  thereto  by  appropriate 
legislation  prior  to  the  act  of  1871.  State  ex 
rel.  V.  Hannibal  &•  St.  J.  R.  Co.,  42  Am.  &» 
Eng.  R.  Cas.  263,  loi  Afo.  120,  13  S.  W. 
Rep.  406.  —  Distinguishing  State  v.  St. 
Louis.  K.  C.  &  N.  R.  Co.,  77  Mo.  203. 
Quoting  Livingston  County  v.  Hannibal 
ft  St.  J.  R.  Co..  60  Mo.  516. 


Though  the  tax  authorized  by  act  of  the 
fifteenth  legislature  (ch.  80,  pp.  89, 90),  to  pay 
indebtedness  to  teachers,  was  one  on  school 
districts  separately  and  not  un  counties,  yet 
where  a  tax  of  one  sixth  oi  one  per  cent, 
was  levied  on  the  entire  county,  and  that 
was  the  auiount  due  from  each  school  dis- 
trict after  comparing  the  indebtedness  of 
the  district  with  the  amount  of  its  taxable 
property,  the  tax,  though  irregular,  was  sus- 
tained. Texas  &•  P.  R.  Co.  v.  Harrison 
County,  54  Tex.  1 19. 

Utah  Comp.  Laws,  677,  §  1912,  gives  the 
county  court  power  to  divide*  a  county  mto 
school  districts,  and  to  change  the  bounda- 
ries of  such  districts,  and  also  provides  that 
taxes  shall  be  assessed  in  each  district  for 
school  purposes.  A  county  court  extended 
the  boundaries  of  a  school  district  fifteen 
miles  westward,  taking  in  certain  of  defend- 
ant's property  twenty-five  miles  from  the 
schoolhouse.  The  intervening  country  was 
mountainous  and  difficult  to  cross.  Held, 
that  the  property  was  liable  for  the  tax 
assessed  upon  it.  King  v.  Utah  C.  R.  Co., 
6  Utah  281,  22  Pac.  Rep  158. 

69.  Statutes  providing:  for  pay- 
ments iu  lieu  of  taxation.*  —  The  pay- 
ment by  a  company  of  a  tax  of  one  per 
cent,  on  the  gross  earnings  of  its  road, 
under  acts  of  Iowa  twelfth  general  as- 
sembly, ch.  169,  did  not  relieve  the  com- 
pany from  the  payment  of  municipal  taxes 
upon  property  within  city  limits.  Daven- 
port  V.  Chicago,  R.  I.  &•  P.  R.  Co.,  38  lojva 
633. — Following  Dunlieth  &  D.  Bridge  Co. 
V.  Dubuque,  32  Iowa  427. 

New  Jersey  Act  of  February  9,  1869,  vali- 
dated and  confirmed  a  certain  lease  and 
contract  by  which  the  Morris  and  Essex 
railroad  company  leased  its  road  to  the 
Delaware,  Lackawanna  and  Western  rail- 
road company  expressly  authorizing  and 
empowering  the  latter  company  to  have, 
hold,  use,  enjoy,  possess,  and  exercise  the 
property,  things,  franchises,  immunities, 
rights,  powers,  and  privileges  by  the  lease  and 
contract  granted  to  it.  Held,  that,  under  the 
designation  of  "  immunities  and  privileges," 
the  act  should  be  construed  as  a  grint  of 
the  immunity  from  taxation  expressed  in 
the  act  of  1865.  enacting  that  the  tax  of  one 
half  of  one  per  cent,  which,  by  the  original 

*  Delaware  act  providing  for  payment  by  rail- 
roads of  a  sum  in  lieu  of  taxation  construed, 
see  33  Am.  &  Eng.  R.  Cas.  475,  adsfr. 


TAXATION,  60,  61. 


853 


act  of  incorporation,  the  lessor  company 
was  to  pay  to  the  stiite,  should  be  in  heu 
and  satisfaction  of  all  other  taxation  or  im- 
position whatsoever.  State  Board  of  Asses- 
sors V.  Morris  &*  E.  R.  Co.,  49  N.J.  L.  193, 
7  Atl.  Hep.  826. 

00.  Particiilnr  words  and  pliruscs. 
—  A  statute,  after  providing  that  a  city 
nii}>ht  grant  the  privilege  of  constructing 
railroads  on  its  streets,  authorized  it  to  col- 
lect a  tax  of  one  dnilar  on  every  hundred 
dollars  of  the  gross  ciirnings  of  the  com- 
pany, which  was  declared  to  be  in  lieu  of  all 
other  taxes.  Subsequently  plaintiff  com- 
pany accepted  an  amendment  to  its  char- 
ter to  construct  its  railway  on  the  streets  of 
the  city,  "provided,  however,  that  all  re- 
strictions, limitations  and  conditions"  pre- 
scribed by  the  former  act  should  apply  to 
said  company.  Held,  that  the  provision  in 
reference  to  the  special  tax  provided  for  in 
the  former  act  was  not  one  of  the  restric- 
tions, limitations,  and  conditions  referred  to. 
Dauphin  Gr*  L.  St.  A'.  Co.  v.  Kennerly,  74 
All.  583. 

A  Colorado  statute  provides  that  the 
property  of  railroads  for  taxation  "shall  be 
valued  at  its  full  cash  value,  and  assess- 
ments shall  be  made  upon  the  entire  rail- 
way within  this  state,  and  it  shall  include 
the  right  of  way,  roadbed,"  etc.  Held, 
that  the  term  "  right  of  way  "  refers  to  the 
strip  of  land  appropriated  for  the  track, 
and  not  to  a  mere  intangible  right  of  pass- 
ing. Keener  v.  Union  Pac.  R.  Co.,  31  Fed. 
Rep.  126;  new  trial  granted  in  34  Fed. 
Rep.  871. 

When  an  enrolled  act  limits  taxation  to 
"one  half  ol  per  centum  on  its  annual  in- 
come," and  the  act,  as  published  by  au- 
thority expresses  the  limitation  to  be  "one 
half  of  one  per  centum."  the  two  expres- 
sirns  will  be  held  to  mean  the  same 
thing.  Goldsmith  v.  Augusta  &•  S.  R.  Co., 
62  Ga.  468. 

The  term  *  railroad  corporations,"  as  used 
in  Iowa  Laws  of  1872,  ch.  26,  is  not  used  to 
distinguish  the  character  of  the  ownership, 
but  of  the  property,  ar  the  provisions  of 
the  cliapter  would  apply  aj  well  to  an  indi- 
vidual or  a  partnership  as  to  an  incorpo- 
rated company.  (Beck  and  Adams,  J  J., 
dissenting.)  Dubuque  v.  Chicago,  D.  &*  M. 
R.  Co.,  47  Iowa  196. 

A  company  sought  exemption  from  county 
taxation  under  a  statute  providing  that  the 
company  should  pay  into  the  treasury  of  the 


commonwealth  a  tax  on  each  one  hundred 
dollars'  worth  of  stock  in  the  company, 
equivalent  to  the  rate  of  tax  on  each  one 
hundred  dollars'  worth  of  property  for  state 
revenue,  and  "no  more."  Held,  that  the 
term  "  no  more  "  applied  to  the  taxes  to  be 
paid  into  the  state  treasury,  and  was  a  limi- 
tation only  upon  the  amount  of  tax  to  be 
assessed  for  state  purposes.  Kentucky  C.  K. 
Co.  v.  Bourbon  County,  82  Ky.  497. 

Mich.  Tram  Railway  Act  prescribes  the 
rate  and  manner  of  taxing  such  railway 
companies,  but  elsewhere  provides  that  the 
act  may  be  at  any  time  amended  or  repealed, 
though  this  shall  not  alter  the  corporate 
rights  of  companies  fnrmed  under  it.  The 
subsequent  tax  law  changed  the  mode  of 
taxation,  but  the  other  clause  was  not  dis- 
turbed. J/eld.  that  the  companies  came 
within  the  tax  law,  and  that  the  term  "cor« 
porate  rights,"  used  alone,  meant  only  such 
essential  and  fundamental  rights  as  attach 
to  corporations,  and  did  not  include  inci- 
dental privileges  and  immunities,  such  as 
a  special  standard  of  taxation.  Detroit  City 
St.  R.  Co.  v.  Gut  hard.  51  Mich.  180,  16  A'; 
W.  Rep.  328.— Adhered  to  in  Detroit  v. 
Detroit  City  R.  Co.,  76  Mich.  421. 

Under  Pa.  Acts  of  1879  and  1881,  impos- 
ing a  tax  of  four  mills  on  "  every  dollar  of 
the  value  "  of  corporate  bonds  or  loans,  for 
state  purposes,  the  word  "value"  means 
the  actual  value,  and  not  the  nominal  or  par 
value.  Com,  v.  Leh^h  Valley  R.  Co..  13 
Am.  &*  Eng.  R.  Cas.  347,  104  Pa.  St.  89. 

As  the  above  acts  contain  no  provision 
for  assessment  and  valuation,  they  do  not 
constitute  an  independent  scheme  for  the 
taxation  of  corporate  loans,  but  must  be 
aided  by  the  act  of  1844.  Copu.  v.  Lehigh 
Valley  R.  Co.,  13  Am.&*  Eng.  R.  Cas.  347, 
104  Pa.  St.  89. 

The  phrase  "  general  taxation  "  in  Va. 
Act  of  March  6,  1847,  §  7,  held  to  mean 
that  the  property  of  the  company  was  lia- 
ble to  all  taxation  for  state,  county,  and  local 
purposes.  Baltimore  &*  O.  R.  Co.  v.  Mar- 
shall County  Sup'rs,  3  W.  Va.  319  —Fol- 
lowed IN  Baltimore  &  O.  R.  Co.  v.  Wheel- 
ing. 3  W.  Va.  372. 

01.  BcpeaLs  and  their  effect.  —  By 
several  acts  a  company  was  incorporated 
and  made  exempt  from  taxation.  After- 
wards its  property  was  sold  under  a  legisla- 
tive act  which  constituted  the  individuals 
or  corporation  purchasing  it  a  corporate 
bod;',  made  certain  material  changes  in  the 


i 


b9 

OR 


3> 


854 


TAXATION,  61. 


II « 

II ; 


charter  in  reference  to  the  location  of  the 
road,  and  reserved  to  the  legislature  the 
right  to  withdraw  or  abrogate  all  rights  and 
privileges  "  vested  by  this  or  any  otiicr  act " 
ill  ihe  company.  The  purchasing  company 
accepted  this  act  by  organizing  and  acting 
under  it.  Subsequently,  the  legislature 
passed  at.  ar'  (1866,  ch.  157),  entitled  "An 
act  to  provide  for  the  general  valuation  and 
assessment  of  property  in  this  state,"  which 
contained  a  clause  repealing  "  all  laws  ex- 
empting property  from  valuation."  Held, 
that  the  act  of  1866,  ch.  157,  operated  as  a 
repeal  of  any  exemption  that  might  have  ex- 
isted in  favor  of  the  company.  Washing- 
ton County  Com'rs  v.  Franklin  R.  Co.,  34 
Mil.  159. 

The  charter  of  a  company  subjected  it  to 
a  tax  of  one  and  a  half  per  cent,  on  the 
cost  of  the  road  as  soon  as  the  net  proceeds 
should  equal  seven  per  cent.,  and  provided 
that  no  other  tax  should  be  levied  upon  the 
company.  By  the  terms  of  the  charter,  it 
might  be  altered  or  repealed  by  the  legisla- 
ture. The  subsequent  general  tax  law  of 
1862  subjected  to  taxation  the  real  estate 
of  all  private  corporations  "except  those 
which  by  virtue  of  any  irrepealable  contract 
in  t.heir  charters  or  otlier  contracts  with  the 
state  are  expressly  exempt  from  taxation," 
and  it  repealed  all  acts,  whether  special  or 
local,  incon.>istent  with  its  provisions.  Held, 
that  it  repealed  the  provision  of  the  charter 
in  regard  to  taxation,  and  that  an  assessment 
made  upon  the  real  estate  of  the  company 
in  a  township  was  rightfully  made  under 
the  general  law.  State  (Morris  &*  E.  R. 
Co.,  Pros.)  V.  Miller,  30  A^.  /.  L.  368  ;  af- 
firmed in  31  N.  J.  L.  521.— Followed  in 
State  (Jersey  City  &  B.  R.  Co..  Pros.)  v. 
Mayor,  etc.,  of  Jersey  City,  31  N.  J.  L.  575; 
State  (Warren  R.  Co.,  Pros.)  v.  Person,  32 

N.J.  L.  134. 

The  Morris  and  Essex  railroad  company, 
in  1865,  was  taxable  under  the  supplement 
to  its  charter,  approved  March  23,  1865,  and 
not  under  the  general  tax  law  of  1862.  This 
supplement  to  the  charter  repealed  the  gen- 
eral tax  law,  pro  tanto,  and  fixed  the  only 
form  of  assessment  for  taxes  that  could  be 
made  against  the  company.  McGavisk  v. 
State  (Morris  &*  E.  R.  Co.,  Pros.),  34  N.  J. 
L.  509.— Quoted  in  State  (Morris  &  E.  R. 
Co.,  Pros.)  V,  Com'r  of  R.  Taxation,  38  N. 
;.  L.  472. 

N.  J.  Act  of  April  2, 1873,  relating  to  the 
taxation  of  railroads,  applies  by  clear  ex- 


pression to  the  Morris  and  Essex  railroad, 
and  therefore  the  general  repealing  clause 
therein  extinguishes  all  the  provisions  in 
the  charter  of  that  company  inconsistent 
with  the  act.  Section  10  of  the  act  applies 
only  to  railroad  companies  having  irrepeal- 
able charters.  As  applied  to  corporations, 
every  grant  of  franchises  is  a  charter,  and 
therefore  section  6  of  the  general  corpora- 
tion act  of  1846  must  be  considered  as  incor- 
porated in  the  act  of  1865,  giving  to  said 
company  the  option  of  selecting  to  which  of 
two  modes  of  taxation  it  would  submit,  by 
which  it  is  made,  in  express  terms,  subject  to 
alteration  or  repeal.  That  company  has  not 
an  irrepealable  contract  with  the  state,  and 
is,therefore,subject  to  taxation,  under  the  act 
of  1873,  without  its  consent.  .  State  {Morris 
<S-  E.  R.  Co.,  Pros.)  v.  Com'r  of  R.  Taxation, 
38  N.  /.  L.  472 ;  affirming  yj  N.  J.  L.  228. 
—Quoting  McGavisk  v.  State  (Morris  & 
E.  R.  Co.,  Pros.),  34  N.  J.  L.  509.  Recon- 
ciling State  (Morris  &  E.  R.  Co.,  Pros.) 
V.  Miuton,  23  N.  J.  L.  529;  State  (Morris  & 
E.  R.  Co.,  Pros.)  V.  Miller,  30  N.  J.  L,  368, 
31  N.  J.  L.  521.— Followed  IN  State  Board 
of  Assessors  v,  Patterson  &  R.  R.  Co.,  33 
Am.  &  Eiig.  R.  Cas.  468.  50  N.  J.  L.  446. 

A  tax  due  under  a  statute  is  not  lost  or 
extinguished  by  the  repeal  of  the  statute,  if 
the  repealing  law  provides  new  modes  of 
collection.  Buffalo  &*  E.  R.  Co.  v.  Com.,  3 
Brews.  {Pa.)  374. 

Pa.  Act  of  May  i,  1868,  §  5,  requiring  a 
tax  against  a  corporation  to  be  deducted 
from  dividends,  is  not  repealed  by  the  act 
of  1 874,  §  4.  The  latter  act  makes  no  change 
in  the  nature  of  the  tax.  Catawissa  R.  Co.'s 
Appeal,  78  Pa.  St.  59. 

Pa.  Act  of  March  26.  1846,  §  6  (P.  L.  179), 
providing  that  the  stock  of  the  New  York 
and  Erie  railroad  company  shall  be  subject 
to  taxation  to  an  amount  equal  to  the  cost  of 
constructing  that  part  of  the  road  situated 
in  Pennsylvania,  is  not  repealed  by  the  pro- 
visions of  the  General  Revenue  Act  of  April 
24.  1874  (P-  L-  68),  providing  that  every 
railroad  company  doing  business  in  the 
commonwealth  shall  be  subject  to  a  certain 
tax  upon  its  capital  stock.  The  former  act 
fixes  the  amount  of  capital  stock  to  be  as- 
sessed ;  the  latter  act  fixes  the  rate  of  taxa- 
tion.    Com.  V.  ErieR.  Co.,  98  Pa.  St.  127. 

By  the  repealing  clauses  of  Pa.  Act  of 
June  7.  1879  (P.  L.  112),  and  the  act  of  June 
30,  188$  (P.  L.  193),  the  act  of  April  29, 
1844  (P.  L.  497),  and  the  act  of  April  33, 


TAXATION,  62. 


d55 


1846  (P.  L.  486),  so  far  as  they  relate  to  the 
taxation  of  mortgages  in  the  hands  of  cor- 
porations, are  no  longer  in  force.  Com.  v. 
Lehish  ValUv  R.  Co.,  129  Pa.  St.  429,  47 
Phila.  Leg.  Int.  406.  25  W.  N.  C.  15, 18  Atl. 
Rep.  406. 

Wyoming  Railroad  Assessment  Act  of 
December  13,  1879,  which  provides  for  the 
assessment  of  railroads  for  taxation  by  a 
territorial  board,  and  repeals  all  inconsist- 
ent laws,  repeals  and  supersedes  the  pro- 
visions of  a  city  charter  giving  to  city  officers 
the  right  to  assess  railroads  within  the  city. 
Union  Pac.  R.  Co.  v  Cheyenne,  113  U.  S, 
516,  s5«/».  Ct.  Rep.  601. 

The  provision  in  the  original  charter  of 
the  Baltimore  &  Ohio  railroad,  granted  by 
the  state  of  Maryland,  to  the  effect  that 
shares  of  stock  in  the  company  should  be 
considered  personal  property  and  exempt 
from  any  tax  or  burden  "  i)y  the  states  as- 
senting to  this  law,"  was  repealed  by  the 
Virginia  Act  of  1847,  which  exempted  the 
property  of  the  company  from  taxation 
until  the  net  income  of  the  company  should 
exceed  six  per  cent,  per  annum.  Baltimore 
&*  O.  R.  Co.  V.  Wheeling,  3  IV.  Va.  372. 

IV    WHO  MAT  BE  TAXED,  AND  FOB  WHAT 
PROPESTT. 

I.    Who  May  be  Taxed. 

02.  Bailivay  companies,  generally. 

— Railroads  in  Kentucky  are  taxed  at  the 
rate  of  $20,000  per  mile  of  road,  including 
depot  grounds,  etc.,  and  all  the  parapher- 
nalia of  the  roads.  By  the  act  of  Feb.  20, 
1864  (Myers's  Sup.  480),  the  length  of  the 
roads  is  required  to  be  reported  tc  the  au- 
ditor and  the  tax  to  be  paid  to  the  treasurer. 
If  a  company  owns  any  property  in  any 
county  in  the  state  which  is  not  included  in 
the  statute,  as  part  of  the  necessary  para- 
phernalia of  the  road,  such  property  is  liable 
to  taxation  for  revenue  and  county  purposes. 
Louisville  &*  N.  R.  Co.  v.  Warren  County 
Court,  $Bush  (Ry.)  243.— DISTINGUISHED  IN 
Ludlow  V.  Cincinnati  Southern  R.  Co.,  7  Am. 
&  Eng.  R.  Cas.  231,  78  Ky.  357.  Reviewed 
AND  CRITICISED  IN  Franklin  County  Court 
V.  Louisville  &  N.  R.  Co.,  2$  Am.  &  Eng.  R. 
Cas.  535.  84  Ky.  59. 

Railroads  are  liable  to  taxation  for  county 
purposes  equally  and  uniformly  with  the 
property  of  a  citizen.  Lincoln  County  Court 
V.  Louisville ^'i^.  R.  Co.,(Ky.)  7  Atn.  6-  Eng. 
X.  Cas.  320.  —  Distinguishing  Applegate 


V.  Ernst,  3  Bush  (Ky.)  650.  QuOTINO  EHz- 
iibetli  &  P.  R.  Co.  V.  Elizabethtown,  12 
Bush  238. 

A  railroad  passing  through  a  parish  is 
liable  to  an  assessment  of  a  parish  tax  on 
the  property  of  t"- 1  road  located  within  the 
parish,  unless  exempted  by  a  special  law. 
The  burden  of  showing  such  an  exemption 
is  on  the  com  pany .  Bakewell  v.  Police  Jury, 
20  La.  Ann.  334. 

Railroad  and  canal  property  is  distin- 
guished by  characteristics  sufficiently 
marked  and  important  to  make  it  a  class  by 
itself,  and  therefore  may  be  made  the  sub- 
ject of  separate  legislation  for  the  purpose 
of  taxation.  State  Board  of  Assessors  v. 
Central  R.  Co.,  24  Am.  6-  Eng.  R.  Cas.  546, 
4S  N. /.  L.  146.  4 /I//.  Rep.  578;  reversing 
48  N.  J.  L.  \,  2  Atl.  Rep.  789.— Distin- 
guishing San  Mateo  County  v.  Southern 
Pac.  R.  Co.,  8  Am.  &  Eng.  R.  Cas.  i,  116 
U.  S.  138 ;  Santa  Clara  R.  Tax  Case,  9 
Sawy.  (U.  S.)  165.  Quoting  Sinking-Fund 
Cases,  99  U.  S.  722.  Reviewing  State 
(Central  R.  Co.,  Pros.)  v.  Mutchler,  41 
N.  J.  L.  96 ;  State  ex  rel.  v.  Parsons,  40 
N.  J.  L.  123. 

The  West  Shore  &  Ontario  terminal 
company  is  a  railroad  corporation  within 
the  meaning  of  the  New  Jersey  railroad  tax- 
ation acts.  IVilUams  v.  Bettle,  51  N.  J.  L. 
512,  18  Atl.  Rep.  750;  affirming  42  Am,  &* 
Eng.  R.  Cas.  271,  50  N.  J.  L.  132,  11  Atl. 
Rep.  17. 

A  railway  was  required  by  act  of  the  leg- 
islature to  complete  its  road  betwen  two 
points  by  a  certain  time,  and  it  was  provided 
that  the  road  should  not  be  taxed  until 
completed.  Soon  after  the  time  fixed,  the 
road  was  completed  to  such  an  extent  that 
by  use,  under  lease,  of  three  miles  of  another 
company's  track,  and  of  a  ferryboat  owned 
by  itself,  freight  and  passengers  were  trans- 
ported between  the  points.  Held,  that  the 
road  was  liable  to  taxation  after  the  time 
fixed  for  its  completion,  and  that  the  state 
could  demand  a  sale  on  non-payment.  Hand 
V.  Savannah  &*  C.  R.  Co.,  12  So.  Car.  314. 

Property  of  a  railroad  company  is  taxable 
like  all  other  property,  unless  exempted 
by  its  charter.  Seaboard  &*  R.  R.  Co. 
V.  Norfolk  County  Sup'rs,  83  Va.  19$,  2 
S.  E.  Rep.  278. 

Property  cannot  belong  to  an  incorpo- 
rated company  without  being  vested  in  it, 
and  the  respective  shareholders  in  such  an 
incorporated  company  constitute  the  com* 


6 

IB 


V9 


rrsr^ 


856 


TAXATION,  63-65. 


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H  Ik* 


pany;  therefore,  property  belonging  to  a 
company  is  vested  in  the  shareholders  in 
their  corporate  capacity  and  not  in  them 
as  individuals  or  natural  persons,  and  is 
consequently  taxable  in  the  name  of  the 
company  Baltimore  6-  O.  R,  Co.  v.  Mar- 
shall County  Sup'rs,  3  W.  Va.  319. 

63.  Branch  roads.— A  company  char* 
tered  with  a  privilege  of  building  branch 
roads,  and  taxed  in  proportion  to  the 
amount  of  its  capital  stock  by  a  provision 
in  its  charter,  built  an  extensive  branch 
without  increasing  the  amount  of  its  stock. 
Held,  that  the  branch  road  was  subject  to 
taxation,  and  that  Ky.  Act  of  February  20, 
1864,  regulated  the  mode  of  assessment  and 
taxation  of  the  entire  road.  Louisville,  C. 
6-  L.  R.  Co.  V.  Com.,  10  BuxA  {Ky.)  43. 

Mo.  Act  of  March  27,  1875,  in  relation  to 
payment  of  assessments  on  branch  railroads 
and  machine  shops  (Sess.  Acts  1875,  p.  128), 
does  not  govern  cases  of  money  collected 
on  assessments  made  prior  to  the  passage 
of  the  act,  as  where  assessment  was  made 
prior  thereto  on  machine  shops  in  a  town. 
State  ex  rel.  v.  Ferguson,  62  Mo.  77. 

64.  Company  whose  road  Is  in  pos- 
session of  mortgagees. — A  corporation 
whose  railroad,  including  its  rolling  stock 
and  equipment,  is  in  possession  of  its  mort- 
gagees, who  are  operating  the  road  under 
the  mortgage,  is  nevertheless  liable  to  taxa- 
tion upon  the  valuation  of  its  railroad  and 
its  equipment  and  appendages,  pursuant  to 
N.  J.  act  entitled  "  An  act  providing  for 
state  taxes  on  railroads,  and  the  more  ef- 
ficient collection  thereof"  (N.J.  Rev.  p. 
1 168.)  State  {New  Jersey  Southern  K.  Co., 
Pros.)  V.  Railroad  Com'rs,  41  N.  J.  L.  235. 

65.  Consolidated  corporations.*  — 
Two  railroads,  one  llal)le  to  taxation  and 
the  other  not,  consolidated,  and  it  was 
judicially  determined  that  the  two  lines,  as 
to  the  public  and  the  state,  retained  their 
original  status.  Held,  that  repairs  or  im- 
provements on  either  line  would  be  subject 
to  taxation  the  same  as  if  there  had  been 
no  consolidation.  Branch  v.  Charleston, 
92  U.  S.  677. 

Where  a  new  corporation  is  formed  under 
authority  of  a  statute  by  the  consolidation 
of  existing  corporations,  and  it  is  declared 
that  the  new  corporation  shall  be  "vested 
with  all  the   rights,   privileges,   franchises, 

*  Taxation  of  corporation  formed  by  consolida- 
tion of  roads  chartered  by  different  states,  see 
note,  15  L.  R.  A.  85. 


and  property  which  may  have  been  vested  in 
either  company  prior  to  the  act  of  consoli- 
dation," the  new  corporation  acquires  no 
greater  immunity  from  taxation  than  the 
several  corporations  enjoyed  as  to  their 
respective  roads.  Whatever  of  their  prop- 
erty was  subject  to  taxation  will  remain  so. 
Chesapeake  &>  O.  R.  Co.  v.  Virginia,  94  [/.  S. 
718,  16  Am.  Ry.  Rep.  155.  — Approved  im 
State  ex  rel.  v.  Keokuk  &  W.  R.  Co.,  41 
Am.  &  Eng.  R.  Cas.  694,  99  Mo.  30,  6  L.  R. 
A.  222, 12  S.  W.  Rep.  290. — Distinguished 
IN  Maine  C.  R.  Co.  v.  Maine,  96  U.  S.  499. 

The  consolidation  of  the  Southwestern 
railroad  company  and  the  Muscogee  railroad 
company  did  not  take  place  until  November, 
1868,  and  the  new  company  is  subject 
to  tiix  legislation  exi.sting  at  that  time, 
without  the  obligation  of  any  contract  be- 
tween it  and  the  state  being  thereby  im- 
paired. Central  R.  &*  B.  Co.  v.  State,  54 
Ga.  401.  —  Distinguished  in  State  v. 
Atlantic  &  G.  R.  Co.,  60  Ga.  268 ;  Western 
&  A.  R.  Co.  V.  State,  54  Ga.  428, 

A  company  owning  a  bridge  across  the 
Mississippi  river,  originally  chartered  as  two 
distinct  companies  by  the  legislatures  of 
Illinois  and  Missouri,  and  consolidated  by 
articles  which  were  confirmed  and  approved 
by  the  legislature  of  Illinois,  is  an  associa- 
tion incorporated  under  the  laws  of  the 
latter  state,  in  the  sense  of  the  revenue  law 
authorizing  the  taxation  of  its  capital  stock. 
Quincy  R.  Bridge  Co.  v.  Adams,  88  ///.  615, 
21  Am.  Ry.  Rep.  378. 

Where  a  consolidated  company  is  formed 
by  the  union  of  several  individual  com- 
panies, one  of  which  has  in  its  charter  no 
exemption  from  taxation,  the  portion  of  the 
road  which  belonged  to  this  company  will 
be  subject  to  taxation  after  consolidation. 
State  V.  Philadelphia,  W.  &•  B.  R.  Co.,  45 
Md.  361.  See  Philadelphia  &*  W.  R.  Co. 
V.  Maryland,  10  How.  {17.  S.)  376. 

New  York  Act  of  1886,  ch.  143,  provides 
that  every  corporation,  joint-stock  company, 
or  association  incorporated  by  or  under  any 
general  or  special  law  of  the  state  shall  pay 
a  tax  of  one  eighth  of  one  per  cent,  upon 
the  amount  of  its  capital  stock.  A  railroad 
company  was  organized  to  build  a  road 
wholly  within  the  state,  and  paid  the  above 
tax.  Subsequently,  it  consolidated  with 
other  corporations  in  other  states  so  as  to 
form  a  continous  line  to  the  city  of  Chicago, 
and  the  capital  stock  was  increased  from 
$4,500,000  to  $30,000,000.     Held,  that  tb« 


Taxation,  ee,  et. 


867 


Consolidated  company  was  not  incorporated 
"  by  or  under  any  general  or  special  law  of 
this  state  "  so  as  to  be  liable  for  a  further  tax 
upon  its  capital  stoclc.  PtopU  v.  Ntw  York 
C.  &>  St.  L.  R.  Co.  42  N.  Y.  S.  R.  90.  129 
A''.  Y.  654,  mem.,  29  N.  E.  Rtp.  959 ;  revers- 
ing 61  Hun  619,  mem.,  39  N,  Y.  S.  R.  725, 
737,  isN.  Y.  Supp.  644. 

66.  Elevated  railway  companies.— 
The  foundations,  columns,  and  superstruc> 
ture  of  an  elevated  railway  are  included  in 
tlie  words  "  lands  "  and  "  real  estate,"  as  de- 
fined in  the  statute  in  reference  to  taxation 
(I  N.  Y.  Rev.  St.  387.  §§  I.  2),  and  so  are 
taxable  as  real  estate  People  *x  rel.  v. 
Com'rs  of  Taxes,  2  Am,  &*  Eng  R.  Cas. 
\.\l,  82  A^.  Y.  459 ;  affirming  19  Hun  460. — 
Applying  People  ex  rel.  v,  Cassity,  46 
N.  Y.  46;  Smith  v.  Mayor,  etc.,  of  N.  Y.,68 
N.  Y.  552;  Hudson  River  Bridge  Co.  v. 
Patterson,  74  N.  Y.  365 ;  People  ex  rel.  v. 
Com'rs  of  Taxes,  80  N.  Y.  573.— Applied 
IN  People  ex  rel.  v.  Com'rs  of  Taxes,  loi 
N.  Y.  322,  4N.  E.  Rep.  127. 

The  person  or  corporation  owning  these 
fixtures  may  be  assessed  therefor  although 
I  lie  fee  of  the  land  to  which  they  are  affixed 
is  in  another;  and  this  without  regard  to 
the  question  whether  that  other  is  a  natural 
person  or  a  municipality,  or  whether  the 
land  is  or  is  not  liable  to  taxation.  People 
ex  rel.  v.  Com'rs  of  Taxes,  2  Am.  &*  Eng. 
R.  Cas.  343,  82  N.  Y.  459;  affirming  19 
ffun  460. 

There  is  nothing  in  the  statutes  exempt- 
ing any  part  of  the  property  of  the  New 
York  Elevated  railroad  company  from  taxa- 
tion. People  ex  rel.  v.  Com'rs  of  Taxes,  2 
Am.  <S-  Eng.  R.  Cas.  343,  82  N.  Y.  459; 
affirming  19  Hun  460.  —  Distinguighing 
Rome  R.  Co.  v.  Mayor,  etc.,  of  Rome.  14 
Ga.  275 ;  Home  of  the  Friendless  v.  Rouse, 
8  Wall.  (U.  S.)  430;  Tomlinson  v.  Branch. 
15  Wall.  460;  Humphrey  v.  Pegues,  16  Wall. 
244;  Pacific  R.  Co.  v.  Maguire,  20  Wall.  36 ; 
Bangor  &  P.  R.  Co.  v.  Harris,  21  Me.  533; 
Mayor,  etc.,  of  Baltimore  v.  Baltimore  &  O. 
R.  Co.,  6  Gill  (Md.)  288. 

As  regards  taxation  it  is  immaterial 
whether  a  railroad  is  laid  upon  the  surface, 
placed  on  pillars,  or  carried  through  a  cov- 
ered way  or  tunnel ;  the  structures  adopted 
to  sustain  it,  or  to  facilitate  and  protect  its 
use,  are,  within  the  meaning  of  the  law, 
land,  and  for  them  the  railroad  company  is 
liable  to  be  taxed.  People  ex  rel.  v.  Com'rs 
of  Taxes,  loi  A^.  Y.  322,  4  A'.  E.   Rip.  1 27 ; 


reversing  23  Hun  687.  —  Applyino  People 
V.  Com'rs  of  Taxes.  82  N.  Y.  459. 
67.  Foreign  corporations.— A  ferry 

company  chartered  in  one  state  to  run 
across  a  river  to  the  border  of  another  state 
is  a  citizen  of  the  state  creating  it,  and  is 
not  taxable  in  the  other  state.  St.  Louis  v. 
Wiggins  Ferry  Co.,  11  IVall.  {U.  S.)  423.— 
Applied  in  Baltimore  &  O.  R.  Co.  v. 
Allen,  17  Am.  &  Eng.  R.  Cas.  461,  22  Fed. 
Rep.  376.  Quoted  in  Cincinnati.  N.  O.  & 
T.  P.  R.  Co.  V.  Com.,  13  Am.  &  Eng.  R. 
Cas.  270,  81  Ky.  492. 

Where  a  foreign  company,  under  a  con- 
tract with  a  company  of  Indiana,  constructs, 
equips,  and  operates  a  portion  of  the  road  of 
the  latter  in  Indiana,  the  stoclc  of  such  road 
must  be  regarded  as  vested  in  the  company 
under  whose  charter  it  is  built,  and  cannot 
be  assessed  and  taxed  against  the  foreign 
corporation ;  nor  can  the  roadbed  be  as- 
sessed as  real  estate  against  the  forergn 
corporation,  and  the  rolling  stock  as  per- 
sonal property,  since  the  statute  requires  it 
all  to  be  assessed  as  corporation  stock. 
Michigan  C.  R.  Co.  v.  Porter,  17  Ind.  380. 

That  provision  of  Kansas  Laws  of  1879, 
ch.  no,  §  22.  which  permits  a  township 
trustee  to  tax  the  property  of "  the  citizens  " 
of  his  township,  thereby  exempting  the  prop- 
erty of  corporations,  is  in  conflict  with  that 
provision  of  the  state  Constitution  which 
requires  taxes  to  be  upon  a  uniform  and 
equal  rate  of  assessment:  but  in  1885  the 
statute  was  amended  so  as  to  omit  the  word 
"citizens."  and  to  permit  the  tax  therein 
named  to  be  levied  upon  all  property  in  the 
township  subject  to  taxation.  Marion  &* 
McP.  R.  Co.  V.  Champlin,  37  Kan.  682.  16 
Pac.  Rep.  222. — Followed  in  Manhattan, 
A.  &  B.  R.  Co.  V.  Burgoyne,  37  Kan.  685; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Johnson,  38 
Kan.  430. 

Before  the  Michigan  Tax  Law  of  1882 
was  adopted,  railroad  companies  that  had 
been  organized  under  the  state  2aws,  and 
whose  roads  lay  wholly  or  partly  without 
the  state,  were  taxable  upon  a  basis  fixed  for 
Michigan  roads  under  the  Railroad  Law  of 
1873;  but  if  the  company  with  which  con- 
solidation has  been  affected  is  a  foreign  one, 
the  consolidated  company  cannot  be  taxed 
as  if  its  road  constituted  a  single  line  partly 
without  the  state,  but  deriving  its  powers 
from  the  law  of  the  state.  Chicago  &»  N. 
W.  R.  Co.  V.  Auditor-General,  53  Mick.  79,  it 
A'.  W.  Rep.  586. 


I 


858 


TAXATION,  68. 


:i:!i; 


«  Ml 

si' 
•  It; 


n  » 
III,, 

lit. 


The  railroads  with  respect  to  which  the 
taxation  provided  for  by  New  Jersey  Rail- 
road Taxation  Acts  of  1873  and  1876  (N.  J. 
Rev.  pp.  1166-1168)  is  imposed  are  such 
as  were  constructed  by  corporations  of  the 
state — domestic  corporations  holding  their 
corporate  franchises  under  charters  granted 
by  the  legislature  of  the  state.  State  (Le- 
high Valley  R.  Co., Pros.)  v.  Mutchler,  i  Am. 
5*  Eng.  R.  Cas.  395,  42  N.J.  L.461. 

It  seems  that  a  foreign  corporation, 
engaged  in  both  state  and  interstate  trans- 
portation in  this  state,  is  subject  to  taxa- 
tion here  in  common  with  domestic  corpo- 
rations. People  ex  rel.  v.  Wemple,  54  Am. 
6-  Eng.  R.  Cas.  i,  138  N,  Y.  i,  51  N.  Y.  S.  R. 
702  ;  affirming  65  Hun  25a. 

If  any  part  of  the  receipts  of  a  foreign 
company  doing  business  within  the  state  is 
taxable,  the  fact  that  the  company  has  re- 
mitted its  receipts  to  its  principal  office  in 
another  state  does  not  affect  the  right  of 
the  state  to  levy  a  tax  thereon.  Delaware 
*•  H.  Canal  Co.  v.  Com.,  (Pa.)  37  Am  <S- 
Eng.  R.  Cas.  359,  17  Ail.  R*p.  175. 

Pa.  Act  of  June  30,  1885.  §  4  (P.  L.  193). 
requiring  corporations,  upon  the  payment 
of  interest  upon  their  corporate  indebted- 
ness, to  deduct  and  return  the  state  tax 
imposed,  applies  not  only  to  domestic  cor- 
porations, but  to  foreign  corporations  doing 
business  in  the  state.  Com.  v.  New  York,  L. 
E.  &*  W.  R.  Co.,  129  Pa.  St.  463,  18  Atl.  Rep. 
412.— Quoting  Com.  v.  Delaware  Div.  Canal 
Co.,  123  Pa.  St.  594.— Followed  in  Com.  v. 
New  York,  L.  E.  &  W.  R.  Co.,129  Pa.  St.  478. 

It  is  competent  for  the  legislature  to 
impose  upon  foreign  corporations  doing 
business  in  the  state  the  duty,  upon  the 
payment  of  interest  upon  their  corporate 
bonds  held  by  resident  holders,  to  deduct 
and  return  the  state  tax  imposed  by  Pa.  Act 
of  June  30,  1885,  §  4  (P.  L.  193).  Com.  v. 
New  York,  L.  E.  6-  W.  R.  Co.,  129  Pa.  St. 
463,  18  Atl.  Rep.  412. 

The  New  York,  L.  E.  &  W.  R.  Co.  is  not 
relieved  from  this  duty  to  collect  and  return 
said  tax,  or  from  liability  therefor  upon 
failure  to  perform  such  duty,  by  anything 
authorized,  conferred,  cr  required  in  the 
acts  of  February  16.  1841  (P.  L.  28),  and  of 
March  26,  1846  (P.  L.  179).  Com.  v.  New 
York,  L.  E.  &»  W.  R.  Co.,  129  Pa.  St.  463, 18 
Atl.  Rep.  412.  Com.  v.  New  York,  L.  E.  &* 
W.  R.  Co.,  I4S  Pa.  St.  57,  22  Atl.  Rep.  212. 
See  also  Com.  v.  Lthigh  Valley  R.  Co.,  129 
Pa.  St.  429,  18  Atl.  Rep.  406,  410. 


08.  Leisor  or  lesHee  roads.— Where 

the  charter  of  a  company  authorizes  it  to 
acquire,  by  lease,  purchase,  or  otherwise, 
any  extension  of  its  road,  and  in  pursuance 
thereof  it  leases  other  railroads  forever,  the 
property  so  leased  will,  for  the  purposes  of 
taxation,  be  regarded  as  the  property  of  tlie 
company  operating  it.  Huck  v.  Chicago  &» 
A.  R.  Co.,  86  ///.  352,  17  Am.  Ry.  Rep.  419. 

Where  one  company  builds  a  car  hoist 
and  lays  a  third  rail  upon  its  own  ground,  a 
company  using  the  same  jointly  with  the 
owner,  for  which  it  pays  a  compensation, 
cannot  be  taxed  for  one  half  its  value. 
Irvin  V.  New  Orleans,  St.  L.  &»  C.  R.  Co.,  94 
III.  105. 

A  contract  between  tw  companies, 
whereby  one  is  to  take  chaige  of  the  road 
of  the  other,  with  all  its  equipments,  and 
operate  the  same  as  a  continuous  line  with 
its  own  line,  and  exercise  all  the  rights  and 
privileges  of  the  other  under  its  franchise, 
for  a  consideration  named,  does  not  change 
the  ownership  of  any  of  the  property  of  the 
latter  company,  and  the  rolling  stock  of 
such  company  is  liable  to  distraint  for  taxes 
assessed  upon  its  capital  tock.  Parting' 
with  the  possession  and  use  of  a  thing  does 
not  always  imply  a  parting  with  the  absolute 
ownership.  Archer  v.  Terre  Haute  &*  I.  R. 
Co.,  7  Am.  6-  Eng.  R.  Cas.  249,  102  ///.  493. 

A  railroad  leased  for  a  term  of  999  years 
may  be  taxed  either  to  the  lessor  or  to  the 
lessee.  Atlantic  &*  St.  L.  R.  Co.  v.  Stote,  60 
N.  H.  133. 

The  rent  which  the  lesiee  .  ;,;-  -.d  to 
pay  is  evidence  of  the  niarke'  A.  ■-.  0'  the 
road  at  the  date  of  tl'.e  leaiic.  B  if  the 
rent  is  more,  or  less,  than  the  u.  ^  ol  the 
road  is  worth,  the  taxable  value  of  the  use 
of  the  road  is  not  on  that  account  more,  or 
less,  than  the  price  for  which  the  road  can 
be  sold.  Atlantic  &•  St.  L.  R.  Co.  v.  State, 
60  A';  H.  133. 

Under  N.  Mex.  Comp.  Laws,  §  1812,  pro- 
viding that  property  under  a  lease  shall  be 
taxed  to  the  lessor  unless  listed  by  the 
lessee,  property  under  a  railroad  lease  can- 
not property  be  assessed  to  the  lessee  com- 
pany operating  the  road  under  the  lessor's 
charter.  Valencia  County  v.  Atchison,  T.  6* 
S.  F.  R.  Co.,  3  N.  Mex.  380, 10  Pac.  Rep.  294. 

Where  a  domestic  corporation  leases  its 
road  to  a  foreign  corporation,  which  agrees 
to  pay  the  taxes  and  assessments  on  the 
property,  the  property  is  properly  assessed 
to  the  lessee,  and  not  to  the  lessor  or  as 


TAXATION,  60,  TO. 


859 


non-reiident  lands.  Peopit  ix  rel,  v.  Reid, 
46  N.  y.  S.  X.  408,  64  Hun  553,  19  N.  Y. 
Supp.  528. 

00.  Railroad  chartered  by  the 
United  States.  —  A  state  tax  may  ordi- 
narily be  imposed  on  the  property  of  a 
company  incorporated  by  the  federal  gov- 
ernment. Such  tax  does  not  in  any  way  in- 
terfere with  or  prevent  the  discharge  by  the 
corporation  to  the  federal  government  of 
the  functions  it  was  designed  to  serve. 
Union  Pac,  Ji.  Co.  v.  Lincoln  County,  i  Dill. 
(  U.  S.)  314.  Huntingdon  v.  Central  Pac.  R. 
Co.,  2  Sawy.  ( U,  S.)  503.  Thomson  v.  Pacific 
R.  Co..  9  Wall.  {U.S.)  579.  Union  Pac.  R. 
Co.  V.  Peniston,  18  Wall.  (U.  S.)  5.  People 
V.  Central  Pac.  R.  Co.,  43  Cal.  398.  Santa 
Clara  County  v.  Southern  Pac.  R.  Co.,  13  Am. 
&*  Eng.  R.  Cas.  182,  18  Fed.  Rep.  385. 

But  a  tax  cannot  be  levied  upon  the  oper- 
ations of  such  a  company,  as  for  example, 
upon  its  franchises.  Union  Pac.  R.  Co.  v. 
Peniston,  18  Wall.  (U.  S.)  5. 

And  a  railroad  bridge  owned  by  the  gov- 
ernment and  used  by  a  railroad  company 
under  a  license  or  a  contract  cannot  be 
taxed.  Chicago,  R.  I.  &*  P.  R.  Co.  v.  Dav- 
enport, 51  Iowa  451. 

The  trial  court  excluded  the  evidence 
offered  to  sustain  the  claim  o'f  defenr!ant, 
"that  the  Central  Pacific  Railroad  is  a 
national  road,  constructed  by  the  general 
government  for  the  purpose  of  carrying  into 
execution  its  powers  over  postal,  military, 
and  commercial  matters,  and  is  therefore 
not  subject  to  state  taxation."  Held,  that 
the  ruling  must  be  sustained.  State  v.  Cen- 
tral Pac.  R.  Co.,  10  Nev.  47.-~Following 
Union  Pac.  R.  Co.  v.  Peniston,  18  Wall. 
(U.  S.)  5. 

70.  Railroads  lying  partly  with- 
out the  state.'*' — (i)  Federal  decisions.— 
A  company  was  formed  by  the  union  of 
several  railroads  which  had  been  previously 
chartered  by  Maryland,  Delaware,  and  Penn- 
sylvania, two  of  which  were  entirely  in 
Maryland.  The  charter  of  one  contained 
no  exemption  from  taxation.  The  charter 
of  the  other  made  the  shares  of  stock 
therein  personal  estate,  and  exempted  them 
from  any  tax  "  except  upon  that  portion  of 
the  permanent  and  fixed  works  which  might 
be  in  the  state  of  Maryland       Held,  that 


*  Taxation  of  railroads  partly  in  and  partly 
out  of  the  state  imposing  tax,  see  note,  13  Am. 
A  Eng.  R.  Cas.  304. 


under  the  Maryland  law  of  1841,  imposing  a 
tax  for  state  purposes  upon  the  real  and 
personal  property  in  the  state,  that  part 
of  the  road  of  the  consolidated  company 
which  belonged  originally  to  the  company 
having  no  exemption  was  liable  to  be  as> 
sessed  just  as  it  would  have  been  in  the 
h&nds  of  the  original  company.  Philadel- 
phia 6-  W.  R.  Co.  V.  Maryland,  10  How. 
(U.  S.)  376.— Approved  in  State  ex  rel.  v. 
Keokuk  &  W.  R.  Co.,  41  Am.  &  Eng.  R. 
Cas.  694,  99  Mo.  30,  6  L.  R.  A.  222,  12  S. 
W.  Rep.  290.  Followed  in  Tennessee  v. 
Whitworth,  117  U.S.  139;  Wilmer W.Atlanta 
&  R.  A.  L.  R.  Co..  2  Woods  (U.  S.)  447. 
Quoted  in  Minot  v.  Philadelphia,  W.  &  B. 
R.  Co.,  2  Abb.  (U.  S.)  323;  Baltimore  & 
O.  R.  Co.  V.  Marshall  County  Sup'rs,  3  W. 
Va.  319.  Quoted  and  approved  in 
Evansville,  H.  &  N.  R.  Co.  v.  Com.,  9  Bush 
(Ky.)  438.  Reviewed  in  State  ex  rel.  v. 
Greene  County,  54  Mo.  540 ;  State  ex  rel.  v. 
Garroutte,  67  Mo.  445. 

A  railroad  was  455  miles  long,  42  miles  of 
which  were  in  a  state  other  than  that  by 
which  it  was  incorporated.  Held,  following 
the  state  decisions,  that  it  was  "  doing  busi- 
ness "  within  the  state  where  the  42  miles 
were,  within  the  meaning  of  Pa,  Act  of  May, 
1868,  taxing  all  railroad  companies  "doing 
business  within  the  state,  and  upon  whose 
road  freight  may  be  transported."  Erie  R. 
Co.  V.  Com.,  21  Wall.  {U.  S.)  492.6  Am.  Ry. 
Rep.  206.— Quoted  in  State  v.  Maine  C.  R. 
Co.,  66  Me.  488. 

(2) State  decisions.— A  Connecticut  statute 
provides  for  taxing  railroads  one  per  cent, 
upon  a  certain  valuation  of  their  franchises 
and  property,  but  contains  a  provision  that 
when  only  a  part  of  the  road  lies  in  the 
state,  the  company  shall  pay  one  per  cent, 
on  such  proportion  of  the  valuation  "as  the 
length  of  its  road  lying  in  this  state  bears 
to  the  entire  length  of  said  road."  A  com- 
pany  owning  a  road  entirely  within  the 
state  took  a  perpetual  lease  of  two  roads 
outside  of  the  state,  which  it  operated  as 
one  entire  system.  Held,  that  the  Connect- 
icut company  could  not  be  regarded  as  "  own- 
ing "  the  other  two  roads  within  the  mean- 
ing of  the  statute,  so  as  to  be  entitled 
to  a  reduction  from  the  valuation  of  its 
property.  State  v.  Housatonic  R.  Co.,  48 
Conn.  44. 

A  state  cannot  tax  the  whole  track  and 
equipments,  the  gross  earnings,  or  the 
entire  capital  stock,  of  a  road  which  liei 


IB 


an 


860 


TAXATION,  71. 


41 


III"! 
.1  .wt, 


;Si 


At' 
R  iwi' 


partly  without  its  boundaries,  and  is  partly 
operated  in  other  states.  It  can  only  tax 
that  part  of  the  road  property  which  lies 
within  its  jurisdiction,  or  the  proportion  of 
stock  representing  that  part  of  the  road. 
S/a/t  Treasurer  v.  Auditor-General,  13  Am. 
&'  Etig.  R.  Cas.  296,  46  Mick.  224,  9  N.  IV. 
Rtp.  258. 

A  tax  upon  the  gross  earnings  of  a  rail- 
way  company  whose  road  is  partly  outside 
of  the  jurisdiction  is  illegal,  not  only  be- 
cause of  the  want  of  jurisdiction,  but  because 
it  is  not  levied  upon  a  rule  of  equality  with 
corporations  whose  business  is  wholly  in  the 
state.  State  Treasurer  v.  Auditor-General, 
13  Am.  &*  Eng.  R.  Cas.  296,  46  Mich.  224,  9 
N.  W.  Rep.  258. 

Where  a  portion  of  a  road  is  outside  of 
the  state,  a  claim  in  proportion  to  the  length 
of  the  road  within  its  borders  is  legal. 
Buffalo  &*  E.  R.  Co.  v.  Com.,  3  Brews. 
{Pa.)  374. 

A  company  incorporated  by  the  state  of 
Ohio,  and  afterwards  authovized  to  extend 
its  road  into  Pennsylvania  by  purchasing  a 
road  theretofore  built  by  another  company, 
falls  within  the  class  of  "  companies  incor- 
porated by  or  under  any  law  of  this  com- 
monwealth," and  is  subject  to  the  tax 
imposed  on  such  companies  by  the  act  of 
April  29,  1844.  Com.  v.  Cleveland,  P.  &*  A. 
R.  Co.,  29  Pa.  St.  370. 

.  Dividends  of  such  company  declared  out 
of  the  profits  and  paid  in  stock  are  equally 
liable  to  the  tax  with  dividends  paid  in  cash. 
Com.  v.  Cleveland,  P.  6-  A.  R.  Co.,  29  Pa. 
St.  370.— Distinguished  in  Com.  v.  Erie 
&  P.  R.  Co.,  10  Phila.  (Pa.)  465. 

The  capital  stock  of  a  domestic  railroad 
corporation,  represented  by  its  equipment  in 
use  interchangeably  on  its  lines  within  and 
without  the  state,  is  taxable,  under  Pa.  Act 
of  June  7,  1879,  §  4  (P.  L.  114),  and  act  of 
June  I,  1889,  §  21  (P.  L.  429),  in  the  propor- 
tion that  its  mileage  operated  within  the 
state  bears  to  its  entire  mileage.  Com.  v. 
Delaware,  L.  6*  W.  R.  Co.,  145  Pa.  St.  96, 
22  Atl.  Rep.  1 57.— Following  Pullman 
Palace  Car  Co.  v.  Com.,  107  Pa.  St.  156,  141 
U.  S.  18. 

But  the  capital  of  such  company,  invested 
in  real  estate  and  other  railroads  outside  the 
state,  and  in  vessels,  barges,  and  tugs,  built, 
registered,  and  used  wholly  outside  the  state, 
is  not  subject  to  such  taxation,  the  sa'd  prop- 
erty being  already  taxable  in  the  states  where 
it  exists  and  is  used.     Com,  v.  Delaware,  L. 


*•  W.  R.  Co.,  145  Pa.  St.  96,  33  Atl.  Rtp. 

1 57.— Following  Com.  v.  American  Dredg- 
ing Co.,  122  Pa.  St.  386. 
71.  Express  companies.  *  — Under 

New  York  Const,  art.  8,  §{  i,  3,  declaring 
that  the  term  "  corporations  "  should  include 
all  associations  or  joint-stock  companies 
having  any  of  the  powers  or  privi- 
leges not  possessed  by  individuals  or  part- 
nerships, a  joint-stock  express  company 
formed  under  the  acts  of  1849  and  1854 
will  be  deemed  a  corporation,  and  will  be 
liable  to  taxation  on  its  capital  like  all  other 
corporations.  Sand/ordv.New  YorkSuP'rs, 
iSHow.Pr.  {N.  Y.)  172. 

Where  individuals  associate  under  an  ar- 
rangement having  but  few  of  the  prop- 
erties of  a  private  partnership,  but  with  the 
chief  characteristics  of  a  corporation,  such 
as  providing  for  the  permanent  investment 
of  capital,  right  of  succession,  the  transfer 
of  property  by  the  assignment  of  a  certifi- 
cate of  ownership,  and  the  prosecution  of 
suits  in  the  name  of  one  person,  it  will  be 
regarded  as  something  more  than  a  partner- 
ship, and  as  being  at  least  a  joint-stock  com- 
pany or  association  within  the  meaning  of 
the  New  York  statutes.  So  held,  as  to  the 
United  States  express  company,  which  ob- 
jected to  a  tax  against  it  under  N.  Y.  Act  of 
1880,  ch.  542,  entitled  "  An  act  to  provide  for 
raising  taxes  for  the  use  of  the  state  upon  cer- 
tain corporations,  joint-stock  companies, 
and  associations."  People  ex  rel.v.  Wempie, 
117  N.  Y.  136,  If)  Am.&»  Eng.  Corp.  Cas. 
610,  22  N.E.Rep.  1046.  27  N.  Y.  S.  R.  341,  6 
L.  R.  A.  303,  2  Int.  Com.  Rep.  735 ;  affirm- 
ing 52  Hun  434,  24  N.  Y.  S.  R.  668,  s  N.  Y. 
Supp.  581.— Reviewing  Waterbury  v.  Mer- 
chants' Union  Exp.  Co.,  50  Barb.  (N.  Y.) 
158 ;  Westcott  v.  Fargo,  6  Lans.  (N.  Y.)  319. 

Under  Pa.  Acts  of  June  7,  1879  (P.  L. 
17),  and  of  June  i,  1889  (P.  L.  431),  requir- 
ing express  companies  to  pay  "  a  tax  of '^ 
eight  mills  upon  the  dollar  upon  the  gross 
receipts  of  said  companies  received  from 
express  business  done  wholly  within  this 
state,"  an  express  company  is  liable  for  a 
tax  upon  the  whole  of  its  gross  receipts,  and 
not  merely  on  so  much  of  its  gross  receipts 
as  remain  after  deducting  therefrom  the 
amounts  paid  to  other  companies  for  trans- 
portation services.  Com.  v.  United  States 
Exp.  Co.,  157  Pa.  St.  579,  27  Atl.  Rep.  396. 

*Tax  on  franchise  or  business  of  express 
companies,  see  note,  6  L.  R.  A.  303. 


TAXATION,  72-76. 


861 


The  tax  upon  the  whole  of  the  gross  re- 
ceipts of  an  express  company  is  not  illega. 
double  taxation,  althuu((h  thu  amounts  paid 
by  the  express  company  to  railroad  compa- 
nies for  transportation  are  included  in  the 
gross  receipts  of  railroad  companies,  and  arc 
taxed  as  such.  Com,  v.  United  Slates  Exp. 
Co.,  157  Pa.  St.  579,  27  Atl.  Hep.  396. 

The  provisions  uf  the  act  of  June  7,  1879, 
§  7,  and  of  tlie  act  of  June  i,  1889,  §  23, 
providing  for  adjustment  of  tax  between 
corporations  in  ce  uin  cases,  do  not  apply 
to  express  companies  which  employ  rail- 
road companies  to  do  their  transportation. 
Com.  V.  United  States  Exp.  Co.,  157  Pa.  St. 
579,  27  Atl.  Hep.  396. 

72.  Telegraph  and  telephone  coni- 
pauies. — An  interstate  telegraph  line  is  tax- 
able by  the  states  through  which  it  runs,  but 
the  operation  of  the  line  cannot  be  enjoined 
for  a  non-payment  of  the  tax  where  a  great 
part  of  it  is  over  United  States  post  roads. 
Western  Union  Tel.  Co.  v.  Massachusetts, 
125  U.  S.  530,  8  Sup.  Ct.  Rep.  961,— Dis- 
tinguished IN  People  ex  rel.  v.  Wemple, 
138  N.  Y.  1. 

A  tax  cannot  lawfully  be  assessed  against 
the  property  of  a  corporation  when  the 
stock  of  the  corporation  is  at  the  same  time 
taxed  to  its  owners.  Cheshire  County  Telep. 
Co.  V.  State.  63  N.  H.  167. 

73.  Union  depot  companies.  —  A 
company  formed  for  the  sole  purpose  of 
furnishing  at  cost  a  union  depot  and  ter- 
minal facilities  for  the  common  use  of  sev- 
eral companies,  and  whose  only  revenue  is 
received  in  the  form  of  tolls  for  the  use  of 
such  depot  and  terminal  facilities,  which 
tolls  amount  in  the  aggregate  only  to  the 
cost  of  operating  the  same,  is  not  liable  to 
pay  as  taxes  a  percentage  on  its  receipts  or 
gross  earnings.  Payment  of  a  percentage 
on  their  gross  earnings  by  the  railway  com- 
panies constitutes  payment  of  taxes  on  all 
the  property  of  the  d  pot  company.  State 
v.  St.  Paul  Union  Depot  Co.,  41  Am.  &■•  Eng. 
R.  Cas.  636,  42  Minn.  142,  43  N.  W.  Rep. 
840.— Reaffirmed  in  St.  Paul  Union  De- 
pot Co.  V.  Minnesota  &  N.  W.  R.  Co.,  47 
Minn.  154. 

74.  Contractors.  —  Contractors  who 
bind  themselves  to  construct  and  equip  a 
railroad,  and  who  are  to  receive  subscrip- 
tions to  ihe  stock,  bonds,  and  mortgages  on 
the  road,  and  are  to  furnish  and  pay  for  all 
materials,  labor,  and  machinery,  and  who  are 
placed  in  possession  of  the  road  to  enable 


them  to  perform  the  contriict  and  are  au- 
thorized to  operate  the  read  and  to  receive 
the  earnings  thereol,  pu'  ing  to  the  railroad 
company  the  net  profits,  are  not  vested  with 
the  franchise  and  right  of  way,  and  &re  not 
the  owners  of  the  road  for  purposes  of  tax- 
ation. Union  Trust  Co.  v.  Weber,  3  Am.  tj* 
Eng.  R.  Cas.  583.  96  III.  340. 

2.   What  Property  is  Subject  to  Taxation, 
a.  In  General. 

75.  Real  estate,  generally.  —  Iowa 
Code  of  1858,  ch.  152,  provides  that,  with 
certain  exceptions,  all  property,  whether 
real  or  personal,  is  the  subject  of  taxation; 
but  real  estate  owned  by  railroad  companies 
is  only  taxable  through  the  shares  of  the 
stockholders.  Davenport  v.  Mississippi  &* 
M,  R.  Co.,  12  Iffiva  539. 

And  it  makes  no  difference  in  this  respect 
that  the  property  is  under  mortgage  to  a 
non-resident  of  the  state  by  whom  it  has 
not  been  listed.  Davenport  v.  Mississippi 
&*  M.  R.  Co.,  12  Iowa  539.~DiSTiNGUiSHED 
in  Faxton  v.  McCosh,  12  Iowa  527.  Re- 
viewed IN  Davenport  v.  Mississippi  &  M. 
R.  Co.,  16  Iowa  348  ;  Iowa  Homestead  Co. 
V.  Webster  County,  21  Iowa  221. 

Where  a  city  discontinues  a  portion  of  a 
street  and  enters  into  an  arrangement  or 
contract  by  which  a  railroad  company  is  to 
have  the  perpetual  use  and  possession  of  the 
land,  it  is  liable  for  taxes  thereon  without  a 
fee-simple  conveyance.  Muscatine  v.  Chi- 
cago,  R.  I.  &>  P.  R.  Co. ,  79  Iowa  645, 44  A^.  W. 
Rep.  909. 

Under  Neb.  Revenue  Act  of  1869,  the 
words  "land  tax  "  were  not  designed  to  in- 
clude town  and  city  tots,  right  of  way  of 
railroad  companies,  etc.,  though  lands  lying 
within  the  limits  of  a  town  or  city  and  not 
subdivided  are  subject  to  the  tax.  Burling- 
ton &*  M.  R.  R,  Co.  V.  Lancaster  County,  4 
Neb.  293.— Quoted  in  Burlington  &  M.  R. 
R.  Co.  V.  York  County  Com'rs,  7  Neb.  487. 

The  lands  of  a  railroad  company  axe  prima 
facie  liable  to  be  assessed  for  the  costs  of 
local  improvements.  The  presumption  is 
that  they  are  benefited  in  common  with  all 
other  lands  within  the  area  of  assessment 
for  such  improvements.  In  re  Cedar  Park, 
I  How.  Pr.  N.  S.  {N.  Y.)  257.  — Review- 
ing Troy  &  L.R.  Co.  v.  Kane,  9  Hun  (N.  Y.) 
506;  Peru  &  I.  R.  Co.  v.  Hanna,68  Ind.  563; 
Chicago  V.  Baer,  41  111.  306;  New  Haven  v. 
Fairhaven  &  W.  R.  Co.,  38  Conn.  422. 


m 

m 
IK 

5 


3 


862 


TAXATION,  70-78. 


w  u 


If  the  commissioners  of  assessmeiu  liave 
discretion  in  determining  what  lands  are 
benefited,  it  should  be  fhown  by  their  re- 
port why  they  have  omitted  any,  and  such 
omission  of  lands  without  explanation  is  an 
error  in  principle,  justifying  interference  by 
the  court.    In  re  Cedar  Park,  i  How.  Pr. 

N.  s.  {jv.  y.)  257. 

Under  Pa.  Act  of  Jiin.  4,  1859,  providing 
that  all  real  estate  situated  in  the  city  of 
Pittsburgh,  owned  or  possessed  by  any  rail- 
road company,  should  be  subject  to  taxation 
for  city  purposes  the  same  as  other  real  es- 
tate, though  such  real  estate  and  improve- 
ments thereon  are  strictly  necessary  for  tlie 
operation  of  the  railroad,  they  are  still  liable, 
as  "  real  estate,"  to  taxation  for  such  pur- 
poses. Pennsylvania  K,  Co.  v.  Pittsburgh,  17 
Am.  &*Eng.  A'.  Cas.  438.  104  Pa.  St.  522.— 
Distinguishing  Coatesville  Gas  Co.  v. 
Chester  County,  97  Pa.  St.  476;  Wayne 
County  V.  Delaware  &  H.  Canal  Co.,  15  Pa. 
St.  357.  Explained  in  Pennsylvania  &  N. 
Y.  C.  &  R.  Co.  V.  Vandyke,  137  Pa.  St.  249. 
Quoted  in  Appeal  of  Western  Pa.  R.  Co., 
18  Phila.  (Pa.)  614. 

The  real  estate  of  a  street  passenger  rail- 
way is  within  the  meaning  and  spirit  of  an 
act  making  the  real  estate  of  "railroads" 
liable  to  taxation,  though  the  company  was 
not  incorporated  till  after  the  passage  of  the 
act.  Pennsylvania  Ji.  Co.  v.  Pittsburgh,  17 
Am.  &>  Eng.  K.  Cas.  438,  104  Pa.  St.  522. 

The  provisions  of  a  state  statute  providing 
for  the  taxation  of  the  property  of  railroads 
are  not  invalid  by  reason  of  the  fact  that 
lands  improved  by  having  a  railroad  built 
on  them  are  not  made  taxable  until  they 
have  been  so  improved  ten  years.  Wells  v. 
Central  Vt.  P.  Co.,  14  Blatch/.  {U.  S.)  426. 

76.  Easements— Right  of  way.— A 
right  in  a  company  to  take  earth,  in  making 
embankments,  from  land  contiguous  to  its 
right  of  way  is  an  easement  which  partakes 
so  far  of  the  character  of  real  estate  as  to 
be  taxable.  Chicago  &*  P.  R.  Co.  v.  Hilde- 
brand,  47  Am.  &»  Eng.  R.  Cas.  145,  136  ///. 
467,  27  N.  E.  Rep.  69. 

Indiana  Act  of  April  8, 188 1,  as  amended 
by  the  act  of  March  8,  1883,  authorizes  the 
assessment  of  the  easement  or  right  of  way 
of  a  company  for  the  cost  of  establishing  a 
drain.  Baltimore,  O.  6-  C.  R.  Co.  v.  Ketring, 
41  Am.  6-  Eng.  K.  Cas.  10,  122  Ind.  5,  23 
N.  E.  Rep.  527. 

77.  Roadbed  and  track. —  Under 
the  statutes  of  Indiana,  the  state  board  of 


equalization  has  exclusive  authority  to  value 
and  assess  railroad  property  denominated 
as  "railroad  track"  and  "rolling  stock"; 
and  the  right  of  way  with  the  improve- 
ments thereon  is  to  be  assessed  as  railroad 
track,  the  "  right  of  way "  including  all 
lands  and  lots  acquired  for  necessary  side 
tracks  and  turnouts  and  the  improvements 
thereon.  Pfaff  v.  Terre  Haute  A-  /.  R,  Co., 
29  Am.  6*  Eng.  R.  Cas.  181,  108  /nd.  144,  9 
N.  E.  Rep.  93.— Quoting  Chicago  &  A.  R. 
Co.  V.  People  ex  rcl.,  98  111.  350. 

A  strip  of  land  100  by  400  feet,  purchased 
by  a  company  in  anticipation  of  future  need 
for  a  branch  road,  occupied  in  part  (35  by 
400  feet)  by  a  trestlework  supporting 
tracks,  is  taxable  by  the  state,  under  N.  J. 
Act  of  April  10,  1884  (Pamph.  L.  p.  142),  (or 
the  35  feet  in  actual  use,  and  by  local 
assessment  for  the  remaining  65  feet  lying 
vacant  for  many  years.  United  N,  J.  R.  &• 
C.  Co.  \.  Jersey  City,  53  N./.  L.  547,  22  Atl. 
Rep.  59.— Distinguishing  State  (Camden 
&  A.  R.  Co.,  Pros.)  V.  Mansfield  Com'rs, 
23  N.  J.  L.  510;  State  (New  Jersey  R.  &  T. 
Co.,  Pros.)  V.  Newark,  25  N.  J.  L.  315,  26 
N.  J.  L.  S19;  State  (New  Jersey  R.  AT.  Co., 
Pros.)  V.  Hancock,  33  N.  J.  L.  315,  35  N.  J. 

L-  537. 

The  roadbed  of  a  company  is  property 
legally  subject  to  assessment  for  benefits 
resulting  from  the  building  of  a  sewer. 
State  {Paterson  6-  H.  R.  R.  Co.,  Pros.)  v. 
Passaic,  54  N.  J.  L.  340,  23  Atl.  Rep,  945.— 
Following  New  Jersey  R.  &  T.  Co.  v. 
Elizabeth,  38  N.  J.  L.  330;  State  (New 
Jersey  Midland  R.  Co.,  Pros.)  v.  Mayor, 
etc.,  of  Jersey  City,  42  N.  J.  L.  97. 

Land  appropriated  and  used  by  a  com- 
pany for  track  and  depot  purposes  is,  in  the 
possession  of  said  company,  "  land  "  for  pur- 
poses of  assessment  under  the  provisions  of 
the  Ohio  Act  of  March  29,  1867,  "to  au- 
thorize the  county  commissioners  to  con- 
struct roads,  on  petition  of  a  majority  of 
resident  landowners  along  and  adjacent  to 
the  line  of  said  road."  Baltimore  &*  O.  R. 
Co.  V.  Belmont  County,  19  Ohio  St.  589. 

78.  Bridges.*  —  A  bridge  iirmly  at- 
tached to  and  incorporated  with  the  stone- 
work of  an  aqueduct  whose  piers  extend 
a  great  depth  below  the  bottom  of  a  river 

*  Taxing  railroad  bridges  across  rivers  that 
are  boundary  lines  between  states,  see  37  Am. 
&  Eng.  R.  Cas.  410,  abstr. 

Taxation  of  railway  bridges  and  bridge  com. 
panies,  see  note,  45  Ah.  &  Enq.  R.  Cas.  35. 


TAXATION,  78. 


863 


tnd  are  futened  to  the  solid  rock  cannot 
be  contidered  personalty  or  anything  else 
other  than  real  estate  within  the  meaning  of 
the  tax  laws.  Alixandria  C,  K.  &*  .'7.  Co. 
V.  District  of  Columbia,  7  Am.  &*  Efig.  If. 
Cas.  325,  I  Mackey  (D.  C.)  217.— Appuov- 
ING  Smith  V.  Mayor,  etc.,  of  N.  Y„  ♦'S  N.  Y. 
554.  Reviewing  Snederker  v.  V/arring,  12 
N.  Y.  170. 

A  bridge  across  a  river,  being  owned 
exclusively  by  the  United  States,  is  not  tax- 
abl:,  either  wholly  or  in  part,  to  a  railroad 
company,  although  the  company  paid  half 
the  cost  of  its  construction  and  is  secured 
in  its  use.  Chicago,  R.  I.  &»  P.  R.  Co.  v. 
Davtnport,  51  Iowa  451. 

The  Iowa  statutes,  after  providing  gener- 
ally for  the  taxation  of  railroad  property, 
enact  that  "all  railway  bridges  across  the 
Mississippi  and  Missouri  rivers  shall  be  sub- 
ject  to  assessment  and  taxation  on  the  same 
basis  as  the  property  of  individuals  in  the 
several  counties  where  situated."  ////</, 
that  the  portion  of  a  bridge  over  the  Mis- 
souri river  which  lies  within  the  state  of 
Iowa  is  taxable  as  a  bridge,  and  not  as 
part  of  the  road  of  the  company  using  it. 
Union  Pac.  R.  Co.  v.  Pottawattamie  County, 
4  Dill.  {U.  S.)  497.— Reconciling  Union 
Pac.  R.  Co.  V,  Hall,  91  U.  S.  343. 

An  Iowa  statute  provided  that  railroad 
bridges  across  the  Mississippi  and  Missouri 
rivers  should  be  taxed  as  individual  prop- 
erty. At  the  time  the  statute  was  passed 
there  were  bridges  over  these  rivers,  owned 
by  private  companies,  on  which  the  railroad 
companies  paid  rent  or  toll;  but  subse- 
quently the  plaintif!  company  constructed 
a  bridge  of  its  own  across  the  Missis- 
sippi river.  //>/</,  that  this  bridge  was 
taxable  as  individual  property  by  the  local 
authorities.  Whether  it  was  taxable  under 
the  statute  must  be  determined  by  the 
nature  of  the  property  and  not  by  the 
ownership.  Chicago,  M.  &*  St.  P.  R.  Co.  v. 
Sabula,  13  Am.  &*  Eng.  R.  Cas.  443, 19  Fed. 
Rep.  177.— Applying  Dubuque  v.  Chicago, 
D.  &  M.  R.  Co.,  47  Iowa  196. 

And  the  fact  that  a  bridge  across  one  of 
the  above  rivers  is  used  for  general  travel 
as  well  as  for  railroad  purposes  does  not 
change  its  character  so  as  to  prevent  it 
be!~<«;  taxable  as  individual  property  under 
the  above  statute.  St.  Joseph  S*  G.  I.  R. 
Co.  V.  Devereux,  41  Fed.  Rep.  14. 

A  city  ordinance  accepted  by  a  bridge 
company,  granting  to  the  company  the  use 


of  a  street  of  the  city  for  the  purpose  ol 
constructing  the  approaches  to  its  bridge, 
with  the  proviso  that  nothing  in  the  ordi- 
nance shall  be  construed  as  "  waiving  "  the 
right  of  the  city  to  tax  the  bridge,  consti- 
tutes such  a  contract  between  the  city  and 
the  company  as  authorizes  the  city  to  tax 
the  bridge,  not  only  for  school  and  railroad 
purposes,  but  for  ordinary  city  purposes. 
Henderson  Brieve  Co.  v.  Henderson,  90  Ky, 
498,  hS.  W.  Rep.  493. 

The  bridge,  at  least  for  the  purpose  of 
collecting  taxes,  should  be  considered  as  a 
part  of  a  railroad.  Henderson  Bridge  Co.  v. 
Henderson,  90  Ky.  498,  145.  W,  Rep.  493. 
—Following  Elizabethtown  &.  P.  R.  Co. 
V.  Elizabethtown,  12  Bush  (Ky.)  239. 

Under  Missouri  Rev.  St.  1879,  §  6901,  a 
railroad  bridge  constituting  a  part  of  a 
track,  but  used  also  for  general  travel,  is 
taxable  as  a  bridge ;  but  if  no  toll  is  charged 
upon  such  bridge,  it  is  taxable  as  a  part  of 
the  railroad.  State  ex  rel.  v.  Hannibal  &* 
St.  J,  R.  Co.,  89  Mo.  98,  14  5.  W.  Rep.  511. 
—Distinguished  in  Glenn  v.  Mississippi 
River  Bridg*;  Co.,  109  Mo.  253.  Reviewed 
IN  State  ex  rel.  v.  Wabash  R.  Co.,  1 14  Mo.  i. 

Under  the  above  statute,  a  bridge  owned 
by  a  railroad  company  and  constituting  a 
part  of  its  track  is  taxable  only  as  a  part  cf 
the  road  and  not  as  a  separate  structure, 
notwithstanding  it  is  used  in  part  as  a  toll 
bridge  for  the  passage  of  teams,  wagons, 
and  the  like.  State  ex  rel.  v.  Hannibal  &» 
St.  J.  R.  Co.,  yj  Am.  <S-  Eng.  R.  Cas.  406, 
97  Afo.  348,  10  S.  tV.  Rep.  436.— Distin- 
guished IN  State  ex  rel.  v.  Mississippi 
River  Bridge  Co.,  54  Am.  &  Eng.  R.  Cas. 
308.  109  Mo.  253,  19  S.  W.  Rep.  421. 

A  railroad  bridge  may  lawfully  be  segre- 
gated for  the  purposes  of  taxation  from 
the  railway  line  in  connection  with  which 
it  is  used,  where  its  ownership  is  separate 
from  that  of  the  railway.  State  ex  rel.  v. 
Mississippi  River  Bridge  Co.,  54  Am.  &* 
Eng.  R.  Cas.  308,  109  Mo.  253,  19  5.  JV. 
Rep.  421. 

The  fact  that  the  bridge  is  under  lease  to 
a  railroad  company  "forever"  at  a  fixed 
rent,  subject  to  a  defeasance  in  case  of 
failure  by  the  lessee  to  comply  with  its 
terms,  does  not  destroy  the  ownership  by 
the  bridge  company  within  the  meaning  of 
the  revenue  law.  State  ex  rel,  v.  Missis- 
sippi River  Bridge  Co.,  54  Am.  &*  Eng.  R. 
Cas.  308,  109  Mo.  253,  19  S.  IV.  Rep.  421.— 
Distinguishing  Sute  ex  rel,  v.  Hannibal 


'1? 


la* 

9 


TAXATION,  19. 


,1    1 


l''\   .M 


llh 


J; 

0: 


II  u:; 


ft  St.  J.  R.  Co.,  97  Mo.  348:  State  ex  rel.  v. 
Hannibal  &  St.  J.  R.  Co.,  89  Mo.  103. 

Under  Mo.  Rev.  St.  1889,  §  775$.  that 
portion  of  a  railroad  bridge  across  tlie  Mis- 
sissippi river  at  Louisiana,  Mo.,  lying  west 
of  the  Missouri  state  line,  is  taxable  as  a 
bridge  while  owned  by  a  bridge  company. 
Sfa/t  tx  rel,  v.  Mississippi  River  lirit^t 
Co.,  54  Am.  &*  Eng.  A'.  Cas.  308,  109  AU. 
353,  19  S.  IV.  Rep.  421.  —  Distinguishing 
State  ex  rel.  v.  Hannibal  &  St.  J.  R.  Co.,  37 
Am.  &  Eng.  R.  Cas.  406, 97  Mo.  348. 

A  company  was  incorporated  by  the  leg« 
islature  of  Pennsylvania  for  the  purpose  of 
constructing  a  railroad  in  that  state.  To 
enable  it  to  rearh  the  seaboard  by  means 
of  connection  with  railroads  in  New  Jersey, 
the  legislature  of  Pennsylvania  gave  to  it  the 
power  to  construct  a  bridge  across  the  Dela- 
ware river,  provided  that  a  concurrent  law, 
to  the  same  efTect,  should  be  passed  by  the 
legislature  of  New  Jersey.  By  the  treaty 
of  1783  between  tlie  two  states  (Rev.,  p. 
1 181),  the  consent  of  both  states  is  neces- 
sary to  authorize  the  erection  of  a  bridge 
over  the  Delaware.  The  legislature  of  New 
Jersey  passed  a  concurring  act,  authoriz- 
ing the  erection  of  the  bridge.  Held,  that 
as  to  the  state  of  New  Jersey,  the  com- 
pany did  not  thereby  become  a  domestic 
railroad  company  within  the  meaning  of  the 
railroad  taxation  acts ;  that  it  was  not  tax- 
able in  the  manner  provided  for  in  those 
acts,  nor  entitled  to  the  exemption  from 
taxation  therein  created,  and  that  it  was 
taxable  on  so  much  of  its  bridge  as  is  in 
the  state  of  New  Jersey,  under  the  general 
tax  law  of  the  state.  State  {Lehigh  Valley 
Ji.  Co.,  Pros.)  V.  Mutchler,  i  Am.  &*  Eng.  R. 
Cas,  395,  42  N.J.  L.  461. 

Under  New  Jersey  Railroad  Taxation  Act 
of  1873  (Rev.,  p.  1166),  the  Central  railroad 
company  of  New  Jersey  is  not  taxable  for 
county,  township,  or  municipal  purposes, 
for  a  railroad  bridge  over  the  Delaware 
river  at  Phillipsburg,  which  was  erected  by 
the  Lehigh  Coal  and  Navigation  company, 
a  corporation  of  the  state  of  Pennsylvania, 
under  permission  granted  by  the  legislature 
of  the  state;  the  said  bridge  being  leased 
to  the  former  company,  and  being  used  by 
it  as  part  of  its  line  of  railroad,  and  being, 
with  its  piers  and  abutments,  less  than  100 
feet  in  width.  State  {Central  R.  Co.,  Prrs.') 
V.  Mutchler,  41  N.  J.  L.  96.— Reviev/Kij  in 
State  Board  of  Assessors  v.  Central  R.  Co., 
34  Am.  &  Eng.  R.  Cas.  546,  48  N.  J.  L.  146. 


Where  the  legislature  Axes  the  limit  of  • 
town  at  the  middle  of  a  navigable  river  on 
which  the  town  is  built,  the  portion  of  a 
railroad  bridge  over  the  river,  and  the  track 
thereon,  within  the  limits  of  the  town,  are 
subject  to  taxation  by  the  town,  as  well  as 
the  land  on  which  the  bridge  and  track  are 
constructed.  Central  Vt.  R.  Co.  v.  St, 
John's,  4  Montr.  L.  R.  466. 

70.  Depot  Krouiids,  buildings,  etc, 
—The  depot  grounds  of  plaintitl  company, 
being  used  for  business  purposes,  and 
bounded  in  part  by  the  streets  of  the  city 
of  Mount  Pleasant,  though  not  a  part  of 
any  addition  or  a  subdivision  of  an  addi- 
tion to  said  city,  and  though  not  laid  out 
on  the  map  referred  to  in  section  1  of  the 
act  incorporating  said  city  (extra  session 
of  1856,  ch.  15),  are  within  the  limits  of 
said  corporation  and  are  subject  to  taxes 
for  the  improvement  of  its  streets  and 
sidewalks.  Burlington  6»  M.  R.  R.  Co.  v. 
spearman,  12  Iowa  112.— DISTINGUISHING 
Covington  v.  Southgate,  15  B.  Mon.  (Ky.) 
491  ;  Morfora  v.  Unger,  8  Iowa  82. 

As  to  the  right  of  a  city  to  tax  the  depot 
grounds,  buildings,  and  roadbed  of  a  rail- 
road corporation,  the  court  was  equally 
divided.  Davenport  v.  Mississippi  &*  M, 
R.  Co.,  16  /oiva  348. 

Under  authority  of  a  statute,  a  company 
discontinued  its  location  over  certain  land 
used  for  station  purposes  and  took  another 
parcel  of  land  which  it  had  formerly  owned 
but  had  sold  for  "station  purposes  and  for 
tracks  and  yard  room  to  be  used  in  con« 
nection  therewith."  HeM,  that  the  whole 
parcel  was  taxable  as  used  for  station 
purposes,  under  the  statute.  Norwich  5^ 
IV.  R.  Co.  V.  Worcester  County  Com'rs,  151 
Mass.  69,  23  A'^,  E.  Rep.  721. 

The  fact  that  land  taken  by  the  company 
for  station  purposes  was  once  a  part  of  the 
road  does  not  affect  the  nature  of  the  tak- 
ing, and  such  land  is  not,  therefore,  exempt 
from  taxation.  Norwich  &*  IV.  R.  Co.  v. 
Worcester  County  Com'rs,  151  Mass,  69,  23 
A^.  E.  Rep.  721. 

A  depot  and  depot  grounds  of  a  railroad, 
actually  used  in  the  operation  of  the  rail- 
road, or  kept  for  the  use  thereof,  in  the 
transaction  of  such  increased  business  as 
may  be  reasonably  anticipated  in  the  near 
future,  are  taxable  only  as  adding  value  to 
the  mileage  of  the  main  line  and  side  track 
of  the  railroad,  under  the  provisions  of 
Neb.  Comp.  St.  ch.  ^^,  entitled  "  Revenue." 


TAXATION,  8t',  HI. 


865 


Dur  ling  ton  5^  M.  R.  Ji,  Co,  v.  Lancasltr 
County  Lemrs,  1$  Ntb.  251,  18  A'.  W, 
Nep.71. 

Lands  occupied  by  freight  and  passenger 
depots,  being  necessary  fur  tiie  enjoyment 
of  the  franchises  of  tlic  railroad  company, 
are  not  liable  to  taxation  under  the  Penn- 
sylvania laws.  Northampton  County  v.  Z,/- 
high  C.  6-  A'.  Co.,  75  /'<!.  St.  461. 

A  statute  providing  that  "  the  track,  right 
of  way,  depot  grounds,  buildings,  machine 
shops,  rolling  stock,  and  all  other  property 
necessary  to  use  in  operating  a  railroad  " 
shall  be  exempt  from  taxation  will  not  re- 
lieve the  company  from  paying  taxes  on 
certain  marsh  lands  originally  acquired  for 
depot  grounds  but  never  reclaimed  or  used 
for  that  purpose.  Milwaukee  &•  St.  P.  li, 
Co.  V.  Milwaukee,  34  Wis.  271. 

80.  LaiidM  exempt  "  until  sold 
and  conveyed."— A  Minnesota  railroad 
charter  exempted  a  company's  lands  from 
taxation  until  they  should  be  sold  and  con- 
veyed. A  part  of  such  lands  was  afterwards 
included  within  the  territory  of  Dakota ; 
but  before  that  territory  was  cut  off  the 
company  had  mortgaged  its  property,  and  at 
a  foreclosure  sale  the  governor  of  Minne- 
sota bid  in  the  property,  which  was  subse- 
quently conveyed  to  another  company. 
/f;/</,  that  the  right  of  immunity  from  taxa- 
tion as  to  such  lands  was  not  merged,  but 
was  conveyed  to  and  acquired  by  the  new 
company.  Winona  &*  St.  P.  R,  Co.  v. 
Deuel  County,  7  Am.  &*  Eng.  R,  Cas.  348,  3 
Dak.  I,  12  A^.  W.  Rep.  561.— APPROVING 
St.  Paul  &  P.  R.  Co.  V.  Parcher.  14  Minn. 
297;  State  V,  Winona  &  St.  P.  R.  Co.,  21 
Minn.  315.  Reviewing  Secombe  v.  Milwau- 
kee 4  St,  P.  R.  Co.,  23  Wall.  (U.  S.)  108. 

As  to  what  amounts  to  a  sale  and  con- 
veyance, see  States.  Southern  Minn.  R.  Co., 
21  Minn.  344,  19  Am.  Ry.  Rep.  239. 

Where  the  exemption  from  taxation  of 
lands  granted  to  a  railroad  company  is  un- 
til they  are  sold  and  conveyed,  a  contract  to 
convey  is  equivalent  to  an  actual  convey- 
ance, so  as  to  render  the  lands  liable  to  tax- 
ation. State  V.  Winona  6-  St.  P.  R.  Co.,  21 
Minn.  472.— Reviewed  in  Brown  County 
V.  Winona  &  St.  P.  Land  Co.,  38  Minn.  397. 

A  transfer  of  a  land  grant  is  not  a  sale 
and  conveyance  within  the  meaning  of 
Minn.  Act  of  May  22,  1857,  exempting  cer- 
tain lands  from  taxation  until  sold  and  con- 
veyed. Nobles  County  v.  Sioux  City  &»  St. 
f.  R.  Co.,  26  Minn.  294,  3  N,  tV.  Rep.  701. 
7  D.  R.  D— 55 


—  Followed  in  Stevens  County  v.  St. 
Paul,  M.  &  M.  R.  Co.,  29  Am.  &  Eng.  R. 
Cas.  725,  36  Minn.  467,  31  N.  W.  Rep.  942. 

Where  a  company  to  which  lands  are 
granted  by  the  state  to  aid  in  the  construc- 
tion of  its  road,  such  lands  to  be  exempt 
from  taxation  until  "  sold  and  conveyed," 
has  sold  the  lands  and  received  the  c(jnsi(l- 
eration,  so  that  it  retains  no  lien  upon  nor 
actual  interest  in  them,  though  it  retains 
the  naked  legal  title  only  as  trustee  for  the 
purchaser,  it  has  'sold  and  conveyed" 
them,  within  tl^e  meaning  of  the  exempting 
clause.  liri/tvn  County  v.  Winona  6-  St,  P. 
Land  Co.,  38  Minn.  397,  37  N.  W.  Kep.  949. 
— Rkviewing  State  v.  Winona  &  St.  P.  R. 
Co.,  21  Minn.  472. 

Minn,  revenue  laws  have  fixed  May  ist 
as  the  date  for  determining  the  taxability 
of  property,  and  its  ownership  and  value  for 
purposes  of  taxation  for  the  year.  Hence 
lands  of  a  railway  company  which  are  ex- 
empt from  taxation  "  until  sold  and  con- 
veyed," if  conveyed  before  May  ist,  are 
subject  to  taxation  for  the  then  current 
year.  If  not  conveyed  until  after  that  date, 
they  are  not  so  subject.  Martin  County  v. 
Drake,  yi  Am.  &»  Eng.  R.  Cas.  389,  40  Minn. 
137,  41  A',  (f^.  Rep.  942.— Distinguishing 
Hennepin  County  v.  St.  Paul,  M.  &  M.  R. 
Co.,  33  Minn.  534. 

81.  Laud  not  needed  or  not  in 
actual  use. — A  company  should  be  taxed, 
under  the  law  as  it  now  stands,  for  its 
"  road  "  as  an  entirety,  including  all  prop- 
erty in  any  way  used  by  it  in  running  or 
operating  the  road.  But  the  real  estate 
owned  by  a  company,  or  held  by  it  in  trust, 
and  not  used  in  running  or  operating  the 
road,  should  be  taxed  in  the  same  manner  as 
the  real  estate  of  private  individuals.  Toledo 
&*  W.  R.  Co.  V.  Lafayette,  22  Ind.  262. 

A  Michigan  statute  imposed  a  specific  an- 
nual tax  of  one  per  cent,  on  the  cost  of  a 
railroad  and  reserved  the  right  to  tax  its 
gross  earnings,  and  contained  the  provision 
that  "the  above  several  taxes  shall  be  in 
lieu  of  all  other  taxes  to  be  imposed  within 
this  state."  Held,  that  the  tax  imposed  was 
on  the  railroad  itself,  and  had  no  relation  to 
lands  owned  by  the  company  and  not  neces- 
sary to  the  working  of  the  road,  which  were 
mortgaged  and  held  for  sale,  and  that  such 
lands  might  be  taxed.  Tucker  v.  Ferguson, 
22  Wall.{U.S.)S2T. 

The  real  estate  of  railroads,  not  used  for 
the  ordinary  and  usual  purposes  in  operat- 


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866 


TAXATION,  82-85. 


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1        ■•T^' 


ing  the  roads,  is  subject  to  municipal  tax- 
ation under  N.  H.  Gen.  Laws,ch.  53,  §§  5,  9. 
Nashua  &*  L.  R.  Co.  v.  Nashua,  62  N.  H.  602. 

A  portion  of  the  real  property  which  a 
company  was  expressly  allowed  to  hold  was 
not  used  by  the  company  for  railroad  pur- 
poses, but  was  rented  for  a  coal  yard.  Held, 
that  such  portion  was  liable  to  taxation,  and 
that  an  assessment  as  to  it  was  valid.  Cook 
V.  State  (Camden ^-B.  County  R.  Co.,  Pros.), 
33  N.J.  L.  474 ;  reversitig  32  N.  J.  L.  338. 

Where  a  company  has  completed  its  road 
and  appendages,  so  far  as  is  at  present  con- 
templated, at  its  several  stations,  the  land 
lying  outside  the  roadway  limitation  of  100 
feet,  not  being  in  actual  use,  nor  in  present 
contemplation  of  use  by  the  company,  is 
liable  to  taxation.  State  (Cape  May  &*  M, 
R.  Co.,  Pros.)  V.  Middle  Tp.,  38  A^.  /.  L.  270, 
13  Am.  Ry.  Rep.  47. 

82.  Lands  under  water. — A  railroad 
company,  as  the  grantee  of  docks,  is  not 
liable  to  taxation  on  lands  under  water  in 
front  of  the  docks,  which  have  never  been 
reclaimed  and  over  which  the  tide  ebbs  and 
flows.  The  title  to  such  lands  is  in  the 
state.  State  (New  York,  L.  E.  <&-  W.  R. 
Co.,  Pros.)  v.  Yard,  1 1  Am.  6-  £ftg^.  R.  Cas. 
529,  43  A^-  /•  ^-  632 :  affirmittg  43  N.  J. 
L,  121. 

83.  Swamp  lands.  —  Where  a  county 
under  obligation  to  convey  its  swamp  lands 
to  a  railroad  company,  under  contract  be- 
tween them,  refuses  so  to  do,  it  will  be 
thereby  estopped  from  afterwards  claiming 
that  during  such  time  the  title  was  in  the 
company  ?nd  thus  the  land  was  subject  to 
taxation.  Iowa  R.  Land  Co.  v.  Story  County, 
36  Iowa  48. — Following  Cedar  Rapids  & 
M.  R.  R.  Co.  V.  Woodbury  County,  29  Iowa 
247  :  Cedar  Rapids  &  M.  R.  R.  Co.  v.  Carroll 
County,  41  Iowa  153.— Distinguished  in 
Buena  Vista  County  v.  Iowa  Falls  &  S.  C.  R. 
Co.,  49  Iowa  226 ;  Howard  County  v.  Bull  is, 
49  Iowa  519.  Followed  in  American 
Emigrant  Co.  v.  Iowa  R.  Land  Co.,  52  Iowa 
323;  Adams  County  v.  Burlington  & 
M.  R.  Co.,  39  Iowa  507.  Reconciled  in 
Cedar  Rapids  &  M.  R.  R.  Co.  v,  Carroll 
County,  41  Iowa  153. 

Nor  would  such  lands  in  any  case  be  tax- 
able before  conveyance,  if  it  were  not  then 
known  what  particular  lands  the  company 
would  be  entitled  to.  There  must  have 
been  a  definite  designation  of  the  lands. 
/<nc'«  R.  Land  Co.  v.  Story  County,  36 
•/mw  48. 


Nor  would  such  lands,  while  held  as  the 
property  of  the  county,  be  taxable  under 
Iowa  Revision,  §  711,  which  exempts  from 
taxation  property  of  a  county  or  the  state 
when  not  held  for  pecuniary  profit.  Iowa 
R.  Land  Co.  v.  Story  County,  36  Iowa  48. 

84.  Indian  lands. —  A  railroad  built 
across  an  Indian  reservation  in  a  terri- 
tory is  subject  to  taxation  by  the  territory 
where  there  is  no  treaty  stipulation  or  ex- 
press exclusion  against  the  jurisdiction  of 
the  territory.  Maricopa  County  Delin- 
quents V.  Territory,  (Ariz.)  48  Am.  &•  Eng, 
R.  Cas.  620,  26  Pac.  Rep.  310. 

By  New  York  Act  of  1836,  ch.  316,  a 
company  was  authorized  to  contract  with 
the  chiefs  of  an  Indian  nation  for  a  right  of 
way  across  their  lands,  to  be  used  without 
any  limitation  as  to  time.  Held,  that  such 
right  of  way  was  "  owned  "  within  the  mean- 
ing of  a  subsequent  statute  taxing  railroau.< 
upon  their  property  owned,  though  the 
company  did  not  hold  the  fee  simple  to  the 
right  of  way.  People  ex  rel.  v.  Beardsley, 
52  Barb.  (N.  K)  105 ;  affirmed  in  41  N.Y. 
619,  mem. 

It  was  not  intended,  by  the  act  "to  re- 
lieve the  Seneca  nation  of  Indians  from  cer- 
tain taxes  on  the  Alleghany  and  Cattaraugus 
reservation,"  passed  Feb.  19,  1857,  to  affect 
any  of  the  provisions  of  the  general  law 
respecting  the  property  liable  to  taxation. 
The  tax  is  not  to  be  assessed  or  imposed  on 
the  reservations,  or  any  part  of  them,  for 
any  purpose,  so  lon^T  as  the  reservations 
remain  the  property  of  the  Seneca  nation. 
But  when  the  Indians  enter  into  a  contract 
with  a  railroad  company  by  which  they 
give  to  the  latter  the  right  to  construct  its 
road  upon  their  land,  and  the  road  has  been 
constructed  thereon  and  is  used  and  occu- 
pied by  the  company,  the  land  ceases  to  be 
the  property  of  the  Seneca  nation  to  tl|e 
extent  specified  in  the  contract.  Although 
the  fee  of  the  land  does  not  pass  to  the  com- 
pany, the  possession  and  use,  and  the  right 
to  possess  and  use,  pass  by  such  contract. 
People  ex  rel.  v.  Beardsley,  52  Barb.  (N.  K.) 
105  ;  affirmed  in  41  N.  Y.  619,  mem. 

All  real  estate  owned,  possessed,  or  ap- 
propriated for  use  by  railroad  companies  is 
to  be  assessed.  People  ex  rel.  v.  Beardsley, 
52  Barb.  (N.  Y.)  105;  affirmed  in  41 
N.  K  619,  mem. 

85.  Grain  elevators  and  ware> 
houses.— Grain  warehouses  built  by  private 
individuals  upon  lands  leased  by  a  railroad 


TAXATION,  8G-8t>. 


867 


company  along  and  on  the  company's  right 
of  way,  and  intended  for  the  private  benefit 
of  the  lessees,  who  have  the  right  to  remove 
the  same  before  the  termination  of  their 
leases,  are  not  the  property  of  the  company, 
but  are  personal  property  of  the  lessees,  and 
taxable  as  other  personal  property.  Gilker- 
son  v.  Brown,  6i  ///.  486. 

Under  the  Minnesota  statute  (Law  1876, 
ch.  4),  a  grain  elevator  standing  upon  tiie 
lands  of  a  railroad  company,  constructed  and 
owned  by  it,  and  constituting  a  part  of  its 
real  estate,  is  not  taxable  as  personal  prop- 
erty of  the  corporation.  Chicago,  M.  &* 
St.  P.  Ji.  Co.  v.  Houston  County,  38  Mt'nn. 
531,  38  A^.  IV.  Rep.  619. 

In  1868  the  legislature  passed  an  act  en^ 
titled  "  An  act  to  enable  the  United  Rail- 
road and  Canal  companies  to  increase  their 
depot  and  terminal  facilities  at  Jersey  City." 
The  statute  provided  that  such  parts  of  the 
property  with  any  improvements  thereon  as 
might  be  used  for  other  than  "  railroad, 
canal,  depot,  transshipping,  or  landing  pur- 
poses "  should  be  subject  to  local  and 
municipal  taxation.  Held,  that  a  grain  ele- 
vator which  was  only  used  in  the  handling 
and  storing  of  grain  for  transshipment,  and 
only  did  work  that  had  formerly  been  done 
by  hand,  was  not  liable  to  taxation.  State 
(Pennsylvania  R.  \.o..  Pros.)  v.  Mayor,  etc., 
of  Jersey  City,  49  N./.  L.  540,9  ^//.  Rep.  782, 
8  Cent.  R'.p.  633.  —  DISTINGUISHING  State 
(New  Jer&ey  R.  &  T.  Co..  Pros.)  v.  Han- 
cock, 35  N.  J.  L.  537;  Railroad  Co.  v. 
Berks  County,  6  Pa.  St.  70;  Erie  County 
V.  Erie  &  W.  Transp.  Co.,  87  Pa.  St.  434. 

86.  Shops.  —  Shops  owned  and  oper- 
ated by  a  company  for  the  construction 
and  repair  of  its  locomotives  and  cars  are 
liable  to  taxation  for  local  purposes  as  real 
estate,  even  though  they  have  no  greater 
capacity  than  is  required  for  the  work  the 
company  itself  has  for  them  to  do.  Penn' 
sylvania  &*  N.  Y.  C.  &*  R.  Co.  v.  Vandyke, 
137  Pa.  St.  249,  20  Atl.  Rep.  653.  —  Dis- 
tinguishing Northumberland  County  v. 
Philadelphia  &  E.  R.  Co.,  20  W.  N.  C.  381 : 
New  York  &  E.  R.  Co.  v.  Sabin.  26  Pa. 
St.  242.  Explaining  Northampton  Coun- 
ty V.  Lehigh  C.  &  N.  Co.,  7S  Pa-  St.  461 : 
Pennsylvania  R.  Co.  v.  Pittsburgh,  104  Pa. 
St.  $22.  Following  Railroad  Co.  v.  Berks 
County,  6  Pa.  St.  70;  Erie  County  v.  Erie  & 
W.  Transp.  Co.,  87  Pa.  St.  434;  Allegheny 
County  V.  McKeesport  Diamond  Market, 
123  Pa.  St.  169. 


87.  Tunnels.  —  Under  Maryland  stat> 
utes  of  1876,  ch.  159,  260,  relating  to  taxa- 
tion of  steam  railroads,  there  can  be  no 
special  tax  on  tunnels  or  on  bridges  over 
streams,  which  tunnels  and  bridges  form 
^art  of  a  railroad.  Appeal  Tax  Court  v. 
Western  Md.  R.  Co.,  50  Md.  274. 

The  "  tunnels,  tracks,  substructures,  su- 
perstructures, stations,  viaducts,  and  ma- 
sonry "  of  a  company,  situate  on  and  under 
Fourth  avenue  in  the  city  of  New  York,  are 
"  land  "  within  the  meaning  of  that  word  as 
used  in  the  statute  in  reference  to  property 
liable  to  taxation  (i  N.  Y.  Rev.  St.  387,  §  2), 
and  are  assessable  as  such.  People  ex  ret. 
V.  Com'rs  of  Taxes,  loi  A^.  Y.  322,  4  N.  E. 
Rep.  127  ;  reversing  23  Hun  687. 

The  fact  that  certain  of  the  structures 
were  built  for  the  purpose  of  furnishing  to 
the  public  safe  and  convenient  crossings 
over  the  tracks,  in  compliance  with  the  re- 
quirements of  N.  Y.  Act  of  1872,  ch.  702, 
and  that  under  said  act  the  city  is  required 
to  pay  a  portion  of  the  expense  of  the  con- 
struction, does  not  divest  the  structures  of 
the  incidents  attached  to  the  other  property 
belonging  to  the  company,  or  give  the  city 
any  title  thereto.  People  ex  rel.  v .  Com'rt 
of  Taxes,  ioi  N.  Y.  322,  4  N.  E.  Rep.  127; 
reversing  23  Hun  687. 

88.  Wharves  and  docks.  —  Under  a 
statute  which  provides  for  taxing  the  real 
estate  of  corporations  "  above  what  may  be 
required  and  used  by  them  for  the  transac- 
tion of  their  appropriate  business,"  a  wharf 
provided  by  a  company  to  accommodate  its 
business  is  not  taxable,  though  at  certain 
seasons  it  is  not  in  use  by  the  company. 
Osborn  v.  Hartford  6*  N.  H.  R.  Co.,  40 
Conn.  498,  5  Am.  Ry.  Rep.  226. 

A  company  was  authorized  to  own  and 
run  steamboats  in  connection  with  its  road. 
Instead  of  doing  this  it  made  an  arrange- 
ment with  a  steamboat  company  in  which 
it  had  no  interest  to  run  boats  from  its 
wharves,  freight  being  way-billed  through 
and  the  gross  receipts  divided  in  certain 
agreed  proportions.  The  court  inclined  to 
regard  the  arrangements  as  an  indirect 
mode  of  exercising  its  charter  rights  with 
regard  to  running  steamboats,  and  the 
premises  used  by  the  steamboat  company  as 
not  liable,  by  reason  of  such  use,  to  local 
taxation.  Osborn  v.  Hartford  &*  N.  H.  R, 
Co.,  40  Conn.  498,  5  Am.  Ry.  Rep.  226. 

80.  Property  in  hands  of  rscelver. 
— There  is  no  sound  principle  upon  which 


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TAXATION,  90-02. 


the  property  of  a  person  or  corporation 
which  is  placed  in  the  hands  of  a  receiver, 
for  the  purposes  of  a  pending  suit,  can  be 
regarded  as  being  thereby  rendered  exempt 
from  the  operation  of  the  tax  laws  of  the 
government  within  whose  jurisdiction  such 
property  is  situated.  Stevens  v.  New  York 
&*  O.  M.  li.  Co.,  13  Blatchf.  (U.  S.)  104. 

A  railroad  corporation  will  not  be  relieved 
from  taxation  under  N.  J.  Railroad  Taxa- 
tion Act  by  the  fact  that  it  is  in  the  hands 
of  a  receiver,  under  an  appointment  of  tlie 
court  of  chancery  on  proceedings  against  it 
as  an  insolvent  corporation.  State  {New 
Jersey  Southern  Ji.  Co.,  Pros.)  v.  Railroad 
Com'rs,  41  N.  J.  L.  235. — Approved  in 
State  V.  Mcmtclair  &  G.  L.  R.  Co.,  43  N. 
J.  L.  524. 

If  a  receiver  of  an  insolvent  company 
operates  the  road  in  the  same  manner  as  if 
the  cor)K>ration  were  solvent,  the  money 
derived  by  him  therefrom  is  derived  from 
the  use  of  the  franchise  conferred  upon  the 
corporation,  and  therefore  is  subject  to  the 
payment  of  the  tax  upon  the  franchise  im- 
posed by  the  New  York  Corporation  Tax  Act 
of  1880.  Central  Trust  Co.  v.  New  York  City 
&*  N.  R.  Co.,  35  Am.  &*  Eng.  Ji.  Cas.  9,  1 10 
A^.  Y.  250,  18  A^.  Y.  S.  R.  30.  18  N.  E.  R<p. 
92  ;  reversing  47  Hun  587, 1 5  A^.  Y.  S.  R.  178. 

The  fact  that  the  property  and  franchises 
of  a  corporation  are  in  the  hands  of  re* 
ceivers,  appointed  by  a  United  States  court, 
does  not  affect  the  liability  of  the  corpora- 
tion to  pay  a  state  tax  accruing  on  "  gross 
receipts."  It  is  not  improper  for  the  ac- 
counting officers  of  the  commonwealth  to 
make  a  settlement  for  such  tax  against  the 
corporation,  in  its  corporate  name,  without 
naming  the  receivers.  Philadelphia  &*  R. 
R.  Co.  V.  Com.,  13  Am.  &*  Eng.  R.  Cas.  367, 
104  Pa.  St.  80. 

00.  Property  withtu  military  res- 
ervation.— The  state  of  Kansas  has  power 
and  authority  to  tax  railroad  property  he- 
longing  to  a  private  corporation,  situated 
exclusively  within  the  boundaries  of  the 
Fort  Leavenworth  military  reservation.  Ft. 
Leavenworth  R.  Co.  v.  Lowe,  13  Am.  &*  Eng. 
R.  Cas.  370,  27  Kan.  749. 

01.  Omitted  property  In  hands 
of  subsequent  purchaser.*— Prior  to 
March  10.  1871.  when  a  statute  was  passed 
providing  a  uniform  system  of  taxing  rail- 
roads, such  property  was  not  subject  to  taxa- 

"Reassessment  as  against  subsequent  pur- 
chasers, see  note,  32  Am.  &  Eng.  R.  Cas.  245. 


tion  in  specie.  The  only  form  of  taxation 
provided  was  a  tax  against  the  shares,  and 
no  lien  existed  for  the  collection  of  the  tax 
upon  the  corporate  property;  and  this 
method  of  taxation  was  applicable  to  the 
North  Missouri  railroad  company,  after  its 
property  had  been  sold,  as  to  back  taxes. 
State  V.  St.  Louis,  K.  C.  &•  N.  R.  Co.,  77 
Mo.  202.— Distinguished  in  Kansas  City 
V.  Hannibal  &  St.  J.  R.  Co.,  81  Mo.  285 ; 
State  ex  rel.  v.  Hannibal  &  St.  J.  R.  Co., 
loi  Mo.  120. 

Property  subject  to  taxation,  but  which 
has  escaped  it,  is,  in  the  hands  of  a  subse- 
quent purchaser,  subject  to  taxation  for  the 
years  in  which  it  escaped  through  the  in- 
advertence of  any  of  the  officers  who  had 
duties  to  perform  with  regard  to  assessing, 
levying,  or  collecting  the  taxes.  Kansas 
Cityv.  Hannibal &* St.  J.  R,  Co.,  22  Am.  6- 
Eng.  R.  Cas,  239,81  Mo.  28$.— Reconciled 
IN  State  ex  rel.  v.  Hannibal  &  St.  J.  R.  Co.. 
loi  Mo.  136. 

02.  BolUugstock,  generally.*  — As 
the  law  stood  without  the  amendment  of 
1889,  the  proper  railway  official  was  required 
to  report  to  the  state  board  of  equalization 
for  taxation  all  rolling  stock  owned  or  oper- 
ated by  the  company,  and  this  board  was 
directed  to  assess  against  each  company  all 
property  exclusively  used  in  operating  the 
railroad.  Denver  &*  R.  G.  R.  Co.  v.  Church, 
48  Am.  &*  Eng.  R.  Cas.  627,  17  Colo,  i  28 
Pac.  Rep.  468. 

Under  Illinois  Act  of  April  9,  1869,  enti- 
tled "  An  act  for  the  collection  of  railroad 
taxes  in  certain  counties,  cities,  and  towns." 
the  persons  or  company  operating  a  railroad 
are  liable  for  the  taxes  upon  the  rolling 
stock  used  upon  such  road,  without  refer- 
ence to  the  ownership  of  the  road  or  tlhT. 
rolling  stock  so  used.  Kennedy  v.  St.  Louis. 
V.  &-  T.  H.  R.  Co.,  62  ///.  395.  7  Am  Ry. 
Rep.  346.— Reviewed  in  Denver  &  R.  G.  R. 
Co.  V.  Church,  17  Colo.  i. 

The  rolling  machinery  of  a  railroad  is 
intimately  connected  with  the  purposes  and 
uses  of  the  track  and  superstructure,  and  it 
is  within  the  power  of  the  legislature  to 
treat  such  machinery  as  real  property  for 
purposes  of  taxation.  Louisville  &*  N.  A. 
R.  Co.  V.  State,  25  /nd.  177. 

*  Taxation  of  rolling  stock,  see  notes,  17  Am. 
&  Eng.  R.  Cas.  466  ;  8  L  R.  A.  299. 

Taxation  of  rolling  stock  o(  foreign  corpora- 
tions. Virginia  Act  1881-83  construed,  see  33 
Am.  k  Eno.  R.  Cas.  486,  aittr. 


TAXATION,  OS,  94. 


869 


Under  Kan.  Laws  of  1876.  ch.  34.  relating 
to  assessment  and  taxation,  a  railroad  com> 
pany  organized  under  the  laws  of  the  state, 
and  operating  its  road  within  the  state, 
must  return  to  the  auditor  of  the  state  a 
full  list  of  all  the  rolling  stock  operated  by 
the  company,  whether  owned  or  leased  by 
it;  and  the  company  operating  or  using 
such  rolling  stock  is  liable  for  the  taxes  due 
thereon.  Shawnee  County  Com'rs  v.  Toptka 
Equipment  Co.,  26  Kan.  363, 

Where  a  company  is  carrying  on  business 
in  the  state,  and  is  the  owner  of  rolling 
stock  adapted  for  use  upon  railroads,  and 
such  rolling  stock  is  actually  leased  to  and 
operated  by  a  railroad  corporation  organized 
under  the  laws  of  the  state,  and  operating 
its  road  within  the  state,  such  rolling  stock 
is  to  be  listed  with  the  auditor  of  the  state 
by  the  railroad  corporation,  and  to  be 
assessed  by  the  board  of  railroad  assessors, 
and  need  not  be  listed  by  the  company 
owning  the  same  in  the  county  where  it  is 
doing  business.  Shawnee  County  Com'rs  v. 
Topeka  Equipment  Co.,  26  Kan.  363. 

Rolling  stock,  equipment,  and  other  prop- 
erty used  by  a  lessee  company  in  operating 
a  railroad,  and  in  its  business  connected 
therewith,  not  taken  and  held  by  it  under 
the  lease  and  in  the  capacity  of  lessee,  are 
not  within  a  grant  of  immunity  from  taxa- 
tion.  State  Board  of  Assessors  v.  Morris  &* 
E.  R.  Co.,  49  A^.  /.  L.  193,  7  At  I.  Rep.  826. 

The  rolling  stock  of  a  non-resident  cor- 
poration passing  through  the  state  for 
purposes  of  interstate  commerce  is  not  lia- 
ble to  taxation  in  the  state.  Bain  v.  Rich' 
mond&'  D.  R.  Co.,  41  Am.  &*  Eng.  R.  Cos. 
574,  105  N.  Car.  363,  II  S.  E.  Rep.  31 1,  8  L, 
R.  A.  299,  3  /nt.  Com.  Rep.  149. 

The  rolling  stock  of  the  Wilmington  and 
Weldon  railroad  company  used  upon  its 
branch  roads,  or  roads  otherwise  acquired, 
ascertained  hy  a  pro  rata  standard  based  on 
the  relative  lengths  thereof  to  the  whole 
line,  is  liable  to  taxation.  Wilmington  &* 
IV.  R.  Co.  V.  Alsbrook,  no  N.  Car.  137,  14  S. 
E.  Rep.  652.  See  also  IVi/mington  &*  W.  R. 
Co.  V.  Alsbrook,  no  A'.  Car.  437,  14  S.  E. 
Rep.  1007. 

93.  Cars.— Section  8,  art.  i,  of  the  fed- 
oral  Constitution,  which  confers  power  upon 
congress  to  regulate  commerce  among  the 
several  states,  does  not  inhibit  the  taxation 
by  a  state  of  railway  cars  foimd  within  its 
borders,  though  in  the  transaction  of  busi- 
ness they   pass  into  adjoining  stutos  iuul 


territories.  Denver  6-  R.  G.  R.  Co.  v. 
Church,  48  Am.  6-  Eng.  R.  Cas.  627,  17 
Colo.  I,  28  Pac.  Rep.  468.— Distinguishing 
Carlisle  v.  Pullman  Palace  Car  Co.,  8  Colo. 
320.  Quoting  Pullman  Palace  Car  Co.  v. 
Pennsylvania,  141  U.  S.  18,  11  Sup.  Ct. 
Rep.  876. 

A  domestic  corporation  using  and  operat- 
ing cars  may  be  required  to  pay  the  taxes 
thereon,  though  the  exclusive  ownership  be 
in  a  foreign  corporation  with  its  domicil, 
principal  office,  and  principal  place  of  busi- 
ness in  another  state.  Denver  &*  R.  G.  R. 
Co.  V.  Church,  48  Am.  6*  Eng.  R.  Cas.  627. 
17  Coh.  I,  28  Pac.  Rep.  468.— Reviewing 
Kennedy  v.  St.  Louis,  V.  &  T.  H.  R.  Co.,  62 

111.  39S. 

The  owner  of  cars  is  not  exempt  from 
taxation  thereon  on  the  ground  that  the 
companies  over  whose  roads  they  run  pay 
taxes  on  their  earnings.  Comstock  v.  Grand 
Rapids,  17  Am.  6-  Eng.  R.  Cas.  457,  54 
Mich.  641.  20  N.  tV.  Rep.  623. 

The  statutory  rule  for  taxing  a  car-loaning 
company  or  the  owner  of  a  special  freight 
line  (How.  Mich.  St.  §  1229)  does  not  apply 
to  the  owner  of  cars  that  are  used  in  his 
own  business,  even  though  the  company 
over  whose  road  they  run  makes  to  the 
owner  an  allowance  for  "  wheelage."  Com- 
stock  v.  Grand  Rapids,  17  Am.  &*  Eng.  R. 
Cas.  457,  S4  Mich.  641,  20  A^.  W.  Rep.  623. 

A  corporation,  other  than  a  railroad  com- 
pany paying  taxes  on  its  gross  receipts, 
whose  business  it  is  to  own  or  possess  rail- 
road freight  cars  which  are  used  and  run  by 
railroad  companies  in  Michigan,  organized 
under  the  laws  of  that  state,  is  subject  to  be 
taxed  under  Mich.  Act  1883,  No.  152.  Fargo 
V.  Auditor-General,  22  Am.  &*  Eng.  R.  Cas. 
216,  57  Mich.  598.  24  A';  W.  Rep.  538. 

04.  Sleepinsr  and  palace  care.*  — 
A  state  has  the  right  to  levy  what  is  called 
a  "privilege"  tax  on  sleeping  cars  en- 
gaged in  business  wholly  within  the  state. 
Gibson  County  v.  Pullman  Southern  Car  Co., 
42  Fed.  Rep.  572.  —  Following  Western 
Union  Tel.  Co.  v.  Alabama  State  Board,  132 
U.  S.  472,  10  Sup.  Ct.  Rep.  161. 

Colorado  Gen.  Laws  of  1877,  §  2231,  pro- 
vide for  the  assessment  and  taxation  of  all 
the  property,  real  and   personal,  "owned, 

*  Sleeping  cars ;  taxation  of,  see  note,  41  Am. 
&  Eng.  R.  Cas.  578. 

Tennessee  statute  imposing  tax  on  sleeping 
cars  construed,  see  45  Am.  &  Eng.  R.  Cas.  18, 

a/islr. 


a 


870 


TAXATION,  95-eT. 


:'     !. 


SI 


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Iff  a' 

■SSI 


belonging  to,  and  used  "  by  railroad  corpo- 
rations in  the  operation  of  their  roads  in  the 
state.  /f*M,  that  sleeping  cars  owned  by  a 
foreign  corporation  but  used  by  railroad 
companies  of  the  state  are  taxable  by  tlie 
state  but  not  by  counties.  Carlisle  v.  Pull- 
man Palac*  Car  Co.,  8  Colo.  320,  54  Am.  Rep. 
553.  7  Pac.  Rep.  164.— DISTINGUISHED  IN 
Denver  &  R.  G.  R.  Co.  v.  Church.  17  Colo.  i. 

A  railroad  operating  sleeping  cars  of  the 
Pullman  Palace  Car  company  has  a  qualified 
property  therein,  making  it  liable  for  taxes 
thereon  as  a  part  of  the  rolling  stock  of  its 
road.  Kennedy  v.  St.  Louis,  V.  6-  T.  H.  R. 
Co.,  62  ///.  395,  7  Am.  Ry.  Rep.  346.— Dis- 
tinguished IN  State  ex  rel.  v.  St.  Louis 
County  Court,  29  Am.  &  Eng.  R.  Cas.  192, 
13  Mo.  App.  53. 

Sleeping  cars  built  and  owned  by  a  corpo- 
ration having  its  principal  office,  or  place  of 
business,  in  Chicago,  and  leased  by  it  to 
various  railroad  companies  in  Maryland,  are 
not  subject  to  taxation  under  Maryland  Act 
Of  1876,  ch.  260.  Appeal  Tax  Court  v. 
Pullman  Palace  Car  Co.,  50  Md.  452.— Fol- 
lowing Philadelphia,  W.  &  B.  R.  Co.  v. 
Appeal  Tax  Court,  50  Md.  397  ;  Appeal  Tax 
Court  V.  Northern  C.  R.  Co.,  18  Md.  217,  50 
Md.  417.— Applied  in  Baltimore  &  O.  R. 
Co.  V.  Allen,  17  Am.  &  Eng.  R.  Cas.  461,  22 
Fed.  Rep.  376. 

Under  the  act  of  1871  (Laws  1871,  p. 
56),  a  company  in  Missouri  cannot  be  taxed 
upon  the  cars  of  the  Pullman  Palace  Car 
company  leased  and  operated  by  it.  State 
ex  rel.  v.  St.  Louis  County  Court,  29  Am.  6~» 
Eng.  R.  Cas.  192,  13  Mo.  App.  53 ;  affirmed 
in  84  Mo.  234.— Distinguishing  Kennedy 
V.  St.  Louis.  V.  &  T.  H.  R.  Co..  62  111.  395. 

Under  Pa.  Revenue  Act  of  June  7.  1879, 
§  7  (P.  L,  112).  the  Pullman  Palace  Car 
company,  a  corporation  chartered  under  the 
laws  of  Illinois,  is  taxable  by  Pennsylvania 
upon  its  gross  receipts  derived  from  all 
sources  from  its  business  carried  on  within 
the  state,  including  receipts  derived  from 
passengers  traveling  in  the  cars  of  said  cor- 
poration passing  into,  through,  and  out  of 
said  state.  Pullman  Palace  Car  Co.  v. 
Com.,  107  Pa.  St.  148. 

Such  construction  of  the  above  act  does 
not  render  it  obnoxious  to  the  provision  of 
the  federal  Constitution  regulating  inter- 
state commerce.  Pullman  Palace  Car  Co. 
V.  Com.,  107  Pa.  St.  148. 

96.  Horses.  —  Under  Pa.  Acts  of  Aug. 
25, 1864,  and  of  April  29,  1844,  horses  owned 


by  a  passenger  railway  company  an^  uied 
in  drawing  its  cars  are  taxable  for  mu- 
nicipal purposes.  Citizens'  Pass.  R.  Co.  v» 
Donohugh,  15  Phila.  (Pa.)  258.— Quoting 
Schuylkill  P.  Bridge  Co.  v.  Frailey,  13  S,  & 
R.  422  ;  Lehigh  C.  &  N.  Co.  v.  Northampi 
ton  County,  8  Watts  &  S.  334.  Review^ 
ING  Wayne  County  Com'rs  v,  Delaware  & 
H.  Canal  Co.,  15  Pa.  St.  351. 

90.  LoGTS  and  lumber.— Logs  cut  by  a 
railroad  company  upon  its  lands,  for  the  pur- 
pose of  sale,  the  lands  being  exempt  from 
taxation  by  virtue  of  the  provisions  of  Minn. 
Sp.  Laws  1865.  ch.  8,  §  i,  and  Minn.  Sp. 
Laws  1870,  ch.  65,  §  t,  are  subject  to  tax- 
ation. State  v.  Northern  Pac.  R.  Co.,  39 
Minn.  25,  38  N.  W.  Rep.  635. 

For  purposes  of  taxation,  wood,  timber, 
logs,  and  lumber,  owned  by  a  railroad  cor- 
poration and  distributed  along  its  line  for 
present  use  in  operating  and  repairing  such 
road,  are  to  be  deemed  a  part  of  the  railroad, 
and  subject  to  be  taxed  in  that  form  by  the 
justices  of  the  supreme  judicial  court.  And 
therefore  such  articles  cannot  be  lawfully 
taxed  in  the  towns  where  they  may  happen 
to  be,  although  they  exceed  in  value  the  sum 
of  fifty  dollars.  Fitchburg  R.  Co.  v.  Prescott, 
47  A^.  H.  62. 

97<  Corporate  A'anchises,  gener- 
ally.*—  The  franchise  of  a  company  is 
property  subject  to  taxation,  and  is  not  ex- 
empt by  reason  of  its  being  a  means  or 
instrumentality  employed  by  congress  to 
carry  into  operation  the  powers  of  the  gen- 
eral government.  Central  Pac.  R.  Co.  v. 
State  Board  of  Equalization,  60  Cal.  35,  13 
Am.  &'Eng.  R.  Cas.  256.— DISTINGUISHING 
Thomson  v.  Pacific  R.  Co.,  9  Wall.  (U.  S.) 
587;  M'Culloch  V.  Maryland,  4  Wheat.  (U. 
S.)  316.— Not  followed  in  San  Benito 
County  V.  Southern  Pac.  R.  Co.,  37  Am.  & 
Eng.  R.  Cas.  374, 77  Cal.  5 1 8, 19  Pac.  Rep.  827. 

A  franchise  of  a  corporation  is  property, 
and  as  such  is  liable  to  taxation,  as  well  as 
the  capital  stock  and  tangible  property  of 
the  corporation.  The  franchise  may  also  be 
condemned  for  public  use,  under  the  right 
of  eminent  domain,  upon  due  compensation 
being  made.  Porter  v.  Rockford,  R.  I.  &* 
St.  L.  R.  Co.,  76  ///.  561.— Quoting  West 
River  Bridge  Co.  v.  Dix,  6  How.  (U.  S.)  529 ; 
Veazie  Bank  v.  Fenno.  8  Wall.  (U.  S.)  547 : 

*  Distinction  between  franchise  and  property 
tax.  see  note,  35  Am.  &  Eng.  R.  Cas.  15. 

iraxation  of  corporate  franchise,  see  note,  i 
L.  R.  A.  344. 


TAXATION,  08. 


871 


1 


Wilmington  R.  Co.  v.  Reid,  13  Wall.  264: 
State  Tax  v.  Railway  Gross  Receipts,  15 
Wall.  296;  Monroe  County  Sav.  Bank  v. 
Rochester,  37  N.  Y.  367. 

The  authority  given  »o  one  company  by 
N.  H.  Laws  1887,  ch.  304,  to  buy  another 
railway,  and  to  increase  its  capital  to  such 
an  amount  as  may  be  requisite,  but  with  no 
increase  or  renewal  of  the  dividend-paying 
franchises  belonging  to  the  two  companies 
before  the  purchase,  was  not  a  creation  or 
renewal  of  corporate  powers  within  the 
meaning  of  N.  H.  Gen.  Laws,  ch.  13,  §  5, 
which  provides  that  no  "  act  incorporating, 
cliartering,  or  renew'"  7  the  corporate  powers 
of  any  railroad  ♦  *  *  company  "  shall  be 
enrolled  or  published,  or  have  the  force  of 
law  until  the  payment  into  the  state  treasury 
of  fifty  cents  per  thousand  on  the  largest 
amount  of  capital  authorized  in  said  act  so 
incorporating,  chartering,  or  renewing  said 
corporate  powers.  Opinion  of  Justices,  54 
Am.  &\  Eng.  R.  Cas.  306,  65  N.  H.  673,  23 
Ail.  Rep.  620. 

The  corporate  franchise  of  a  railroad  is 
property  and  as  such  is  taxable.  State  Board 
of  Assessors  v.  Central  R.  Co.,  24  Am.  &* 
Eng.  R.  Cas.  546, 48  N.  J.  L.  146, 4  All.  Rep. 
578 ;  reversing  48  N.f.L.  1,2  Atl.  Rep.  789. 

A  charter  granted  in  1833  provided  that 
all  the  property  purchased  by  the  officers  of 
the  company  should  vest  in  the  shareholders 
"  in  proportion  to  their  respective  shares, 
and  the  shares  sh  11  be  deemed  personal 
property ;  and  the  property  of  said  company 
and  the  shares  therein  shall  be  exempt 
from  any  public  charge  or  tax  whatsoever." 
Held,  that  the  legislature  might,  notwith- 
standing, in  1869,  levy  an  ad  valorem  tax 
upon  the  franchise.  Wilmington  &*  IV.  R. 
Co.  V.  Reid,  64  N.  Car.  226;  reversed  in  13 
lVall.{U.  S.)2(,^. 

A  charter  granted  in  1852  provided  that 
the  railroad  and  all  engines,  cars,  ma- 
chinery, and  works  of  the  company,  to- 
gether with  all  profits  and  property  thereof 
of  every  description,  should  be  exempt  from 
taxation  for  fifteen  years  ;  "  and  thereafter 
the  legislature  may  impose  a  tax  not  ex- 
ceeding twenty-five  cents  per  annum  on 
each  share  of  the  capital  stock  held  by  indi- 
viduals, when  the  annual  profits  shall  exceed 
eight  per  cent."  Held,  that  the  legislature 
might,  in  1869,  authorize  an  ad  valorem  tax 
not  exceeding  two  thirds  of  one  per  cent, 
upon  the  franchise,  rolling  stock,  and  real 
estate  of  the  company,  though  the  annual 


profits  had  never  exceeded  eight  per  cent. 
Ralegh  6-  G.  R.  Co.  v.  Reid,  64  A^.  Car.  155; 
reversed  in  13  Wall.  (U.S.)  269.— Apply- 
ing McRee  v.  Wilmington  &  R.  R.  Co.,  2 
Jones  (N.  Car.)  186.— Approved  in  State  v. 
Krebs,  64  N.  Car.  604.  Followed  in  Wil- 
mington &  W.  R.  Co.  V.  Reid,  64  N.  Car.  226. 

The  franchist  of  the  Atlantic,  Tennes- 
see &  Ohio  R.  Co.  is  subject  to  tax.  It 
is  a  distinct  species  of  property  from  that 
enumerated  in  the  clause  of  the  charter 
exempting  the  roadbed,  etc.,  from  taxation 
for  a  limited  period.  Atlantic,  T.  &»  0.  R. 
Co.  V.  Mecklenburg  Com'rs,  87  N.  Car,  129. 

A  tax  imposed  directly  by  the  legislature 
upon  a  corporation,  or  its  gross  receipts,  or 
the  cash  value  of  the  shares  of  its  capital 
stock,  or  upon  each  mile  of  its  road  at  a 
certain  sum  per  mile,  and  not  assessed  by 
assessors,  is  a  franchise  or  privilege  tax. 
Worth  V.  Petersburg  R.  Co.,  89  N.  Car.  301. 

The  franchise,  capital  stock,  property 
consisting  of  land  machinery,  etc.,  shares 
of  capital  stock,  and  profits  arising  from 
the  business  of  a  corporation,  are  each  the 
subject  of  distinct  taxation.  Worth  v. 
Petersburg  R.  Co.,  89  N.  Car.  301 

Franchises  of  a  corporation  are  taxable 
property  and  should  be  assessed,  not  sepa- 
rately, but  with  its  tangible  property.  South 
Nashville  St.  R.  Co.  v.  Morrow,  39  Am.  &* 
Eng.  R.  Cas.  518,  87  Tenn.  406,  2  L.  R.  A. 
853.  II  5.  W.Rep.'i\i. 

08.  Tolls,  and  gross  receipts  there- 
for.—  The  amounts  received  by  one  rail- 
road company  for  the  use  of  its  railroad 
within  the  state  by  another  railroad  com- 
pany, for  transportation  either  within  or 
through  the  state,  are  taxable  at  the  rate  of 
eight  tenths  of  one  per  cent.,  as  gross  re- 
ceipts for  tolls,  under  Pa.  Ac.  of  June  7, 
1879.  §  7  (P-  L.  116).  Com.  V.  New  York, 
P.  6-  0.  R.  Co.,  48  Am.  6-  Eng.  R.  Cas.  633, 
14s  Pa.  St.  38,  22  Atl.  Rep.  212 

As  the  railroad  for  the  use  of  which  the 
receipts  are  paid  lies  wholly  within  the 
state,  the  tax  on  such  receipts  is  not  a  bur- 
den imposed  by  the  state  upon  the  com- 
pany which  pays  them,  and  therefore  is  not 
violative  of  the  commerce  clause  of  the 
Constitution  of  the  United  States.  Com,  v. 
New  York,  P.  &•  0.  R.  Co.,  48  Am.  &*  Eng. 
R.  Cas.  633,  145  Pa.  St.  38, 22  Atl.  Rep.  212. 

But  moneys  received  by  a  company  for 
the  use  of  its  tracks  by  the  trains  of  an- 
other company  in  common  with  its  own 
trains,  computed  at  the  rate  of  so  much  for 


IB 


IB 


872 


TAXATION,  09,  lOO. 


.  t^<u 


0i 


1'  "^P? 

■I  flp»» 


1        '  2."  u 


each  ton  of  freight  and  for  each  passenger 
carried,  are  nut  rents,  nor  receipts  from  pas- 
sengers and  freight  traffic,  but  receipts  for 
tolls.  Such  tolls  are  not  included  within 
the  gross  receipts  taxable  under  Pa.  Act  of 
June  I,  1889.  §  23  (P.  L.  431),  imposing  a  tax 
upon  the  gross  receipts  "from  passengers 
and  freight  traffic  transported  wholly  within 
this  state  "  of  every  company  owning,  oper- 
ating, or  leasing  any  railroad.  CotM.  v.  Nnt/ 
York,  L.  E.  &*  W.  A'.  Co.,  145  Pa.  St.  200, 
22  Ail.  Rep.  807. 

Construed  in  the  light  of  preceding  leg- 
islation, and  of  the  fact  that  the  well- 
defined  word  "tolls,"  appearing  in  prior 
taxing  statutes,  was  omitted  from  the  act 
of  1889,  the  words  employed  in  that  act 
apply  only  to  receipts  for  carriage  done  by 
the  company  taxed  or  by  a  company  oper- 
ating its  works  under  a  lease.  Com.  v.  New 
York,  L.  E.  (S-  W.  R.  Co.,  145  Pa  St.  200, 
22  Atl.  Rep.  807. 

09.  Bonds  and  coupons.  — (i) -^^'Z- 
tral  decisions. — Where  a  railroad  extends 
through  two  states,  bonds  issued  by  the 
company  and  secured  by  a  mortgage  on  the 
entire  road  are  not  taxable  in  one  of  the 
states  under  a  statute  taxing  the  interest 
on  railroad  bonds,  and  requiring  the  fiscal 
officers  of  the  company  to  deduct  the  tax 
from  the  amount  of  interest  payable  on  the 
bonds.  Northern  C.  R.  Co.  v,  Jackson,  7 
Wall.  {U.  S.)  263.— Approved  in  Cleve- 
land, P.  &  A.  R.  Co.  V.  Pennsylvania,  15 
Wall,  (U.  S.)  300;  United  States  v.  Balti- 
more &  O.  R.  Co.,  17  Wall.  322.  Recon- 
ciled IN  Wilmer  v.  Atlanta  &  R.  A.  L.  R. 
Co.,  2  Woods  (U.  S.)  447.  Reviewed  in 
Philadelphia  &  R.  R.Co.  v.  Barnes,  7  Phila. 

.It  J' 

\  railroad  owned  by  an  improvement 
C"T.;jany  which  had  power,  among  other 
♦r.I< :',a,  to  improve  the  navigation  of  a  river 
;;  n.j  :  o  own  and  develop  lands,  is  liable,  under 
the  Act  of  Congress  of  July  13,  1866,  for  the 
five  per  cent,  tax  on  coupons  of  bonds  is- 
sued for  its  indebtedness.  Kentucky  Imp. 
Co.  v.  Slack,  100  U.  S.  648.— Followed  in 
Eastern  Ky.  R.  Co.  v.  Slack,  100  U.  S.  659. 

Neither  the  general  tax  law  of  Pennsyl- 
vania (Bright.  Dig.  1858)  nor  the  act  of 
April  30,  1864,  contemplates  taxing  the  in- 
terest coupons  of  railroad  bonds.  Jackson 
V.  Northern  C.  R.  Co.,  Chase  Dec.  ( U.  S)  268. 

Interest  on  bonds  of  a  corporation  held 
by  non-resident  aliens  is  not  taxable  by  the 
United  States  under  section  122  of  the  act 


of  June  30, 1864,  as  amended  by  section  9  of 
the  act  of  July  13.  1866.  United  States  v. 
Erie  R.  Co..  9  Ben.  {U.S.)  67.— DISAPPROV- 
ING Michigan  C.  R.  Co.  v.  Slack,  22  Int.  Rev. 
Rec.  337.  Reviewing  United  States  v. 
Baltimore  &  O.  R.  Co.,  17  Wall.  (U.  S.)  322; 
Stockdale  v.  Atlantic  Ins.  Co.,  20  Wall. 
323 ;  Cleveland,  P.  &  A.  R.  Co.  v.  Pennsyl- 
vania, 15  Wall.  300. 

(2)  State  decisions. — Bonds  and  other 
property  of  a  company  not  forming  any 
part  of  the  railroad  or  its  appurtenances 
are  subject  to  taxation  as  the  property  of 
other  citizens.  State  v.  Georgia  R.  &*  B. 
Co.,  54  Ga.  423. 

By  Mass.  Pub.  St.  ch.  11,  §  4,  personal 
estate  for  the  purposes  of  taxation  Includes 
money  at  interest  and  other  debts  due  the 
persons  to  be  taxed,  more  than  they  are  in- 
debted or  pay  interest  for,  and  "public  stocks 
and  securities."  Held,  that  the  bonds  of  a 
railroad  company  were  not  public  stocks 
and  securities  within  the  meaning  of  the 
statute,  notwithstanding  the  compainy  was 
chartered  by  congress  with  a  large  land 
grant,  with  the  reserved  power  to  the  gen- 
eral government  to  use  it  for  certain  public 
purposes  and  to  regulate  charges  thereon 
for  government  transportation.  Hale  v. 
Hampshire  County  Com'rs,  137  Mass.  11 1. 
—Quoting  United  Stalest/.  Wigglesworth, 
2  Story  (U.  S.)  369;  United  States  Bank  v. 
Planters'  Bank,  9  Wheat.  (U.  S.)  904. 

Bonds  of  a  railroad  incorporated  in  the 
state  are  taxable  as  "money  at  interest," 
under  New  Hampshire  laws.  Sawyer  v. 
Nashua,  59  N.  H.  404. 

And  they  are  not  exempted  by  being  se- 
cured by  mortgage  or  otherwise.  Boston,  C. 
&•  M.  R.  Co.  V.  State,  62  N.  H.  648. 

100.  Capital— Borrowed  capital.— 
Railroad  companies  are  not  taxed  upon 
their  capital,  but  upon  the  valuation  of 
their  real  estate  in  the  several  towns  through 
which  the  road  passes ;  and,  semble,  they  are 
liable  to  be  so  taxed,  though  not  in  the  re- 
ceipt of  any  profits  or  income.  People  ex 
rel.  V.  Niagara  County  Sup'rs,  4  Hill{N.  Y.) 
20.— Following  Mohawk  &  H.  R.  Co.  v. 
Clute.  4  Paige  (N.  Y.)  384. 

Under  Pa.  Act  of  April  29,  1844,  §  32, 
enumerating  property  subject  to  taxation, 
which  includes  mortgages  and  "  money 
owing  by  solvent  debtors,  whether  by  prom- 
issory note,  penal  or  single  bill,  bond  or 
judgment,  and  all  public  loans  or  stocks 
whatsoever,"  the  borrowed  capital  of  a  rail- 


TAXATION,  101. 


878 


road  company  Is  taxable.    Maltby  v.  Read' 
tug  A*  C.  R.  Co.,  52  Pa.  St.  140. 

Under  the  above  statute  capital  borrowed 
by  a  corporation  from  citizens  of  other  states 
may  be  taxed.  Maltby  v.  Reading  <S-  C.  R. 
Co.,  52  Pa.  St.  140. 

101.  Capital  stock  —  Shares  of 
.stock. — The  words  "  capital  stock,"  as  used 
in  III.  Act.  of  1872,  do  not  mean  "shares  of 
stock,"  either  separately  or  in  the  aggregate, 
but  are  intended  to  designate  the  property  of 
the  corporation  subject  to  taxation.  Porter 
V.  Rockford,  R.  I.  &*  St.  L.  R.  Co.,  76  ///.  561. 

The  property  of  the  shareholders  in  a 
corporation  is  distinct  from  that  of  the  cor- 
poration, although  the  shares  of  stock  have 
no  value  save  that  which  they  derive  from 
the  corporate  property  and  franchise;  and  a 
tax  levied  upon  the  property  of  the  one  is 
not  levied  upon  the  property  of  the  other. 
A  tax  upon  the  capital  stock  anri  franchise 
of  a  corporation  is  not  a  tax  upon  the  shares 
of  the  shareholders.  Porter  v.  Rockford,  R. 
I.  &*  St.  L.  R.  Co.,  76  ///.  561.  — Quoting 
Allen  V.  Board  of  Assessors,  3  Wall.  (U.  S.) 
583 ;  Gordon  v.  Appeal  Tax  Court,  3  How. 
(U.  S.)  133. 

The  term  "  stock  "  as  used  in  i  Ind.  Rev. 
St.  §  32,  providing  for  the  assessment  of 
corporate  property,  does  not  include  sub- 
scriptions to  stock,  but  the  actual,  tangible 
property  of  the  corporation.  State  ex  rel. 
V.  Hamilton,  5  Ind.  310.  —  Followed  in 
Floyd  County  v.  New  Albany  &  S.  R.  Co., 
1 1  Ind.  570. — Mich^an  C.  R.  Co,  v.  Porter, 
17  Ind.  380. 

The  charter  of  a  company  provided  that  it 
should  pay  to  the  state  an  annual  tax  of  one 
half  of  one  per  cent,  upon  its  capital  stock 
paid  in,  including  $500,000  of  purchase 
money  paid  to  tht  state,  until  a  certain 
date,  and  thereafter  an  annual  tax  of  three 
fourths  of  one  per  cent,  upon  its  capital 
stock  paid  in,  including  the  above  amount, 
and  also  upon  all  loans  made  to  the  com- 
pany. Subsequently  a  statute  consolidating 
the  company  with  another  provided  that  the 
corporation  should  be  subject  to  the  same 
rate  of  tax  as  though  such  consolidation  had 
not  taken  place.  Held,  that  a  specific  tax 
on  a  "bonus"  allowed  to  the  original  pur- 
chasers of  the  road  is  allowable,  though  it 
did  not  stand  on  the  books  of  the  company 
as  stock  paid  in.  People  v.  Michigan  S.  &* 
N.  I.  R.  Co.,  4  Mick.  398. 

Sliares  of  stock  in  an  incorporated  com- 
pany may  be  taxed  as  a  distinct  species  of 


property  belonging  to  the  holder,  inde« 
pendently  of  the  taxation  imposed  upon  the 
value  of  the  franchise  and  upon  the  real 
and  personal  estate  of  the  corporation  it- 
self.  Belo  v.  Forsyth  County  Com'rs,  82  N, 
Car.  415. 

The  legislature,  by  N.  Car.  Act  of  1877, 
ch.  iJS,  §  9  (6),  intended  to,  and  did,  provide 
for  taxing  the  shares  of  stock  in  railroad 
corporations  owned  by  private  parties.  £*h 
v.  Forsyth  County  Com'rs,  82  A';  Car.  415. 

A  railroad  charter  provided  that  all  the 
property  of  the  company  should  be  vested 
in  the  stockholders  in  proportion  to  their 
shares,  and  "the  same  shall  be  deemed  per- 
sonal estate,  and  shall  be  exempt  from  any 
public  charge  or  tax  whatsoever  for  the 
term'  of  fifteen  years;  and  thereafter  the 
legislature  may  impose  a  tax  not  exceeding 
twenty-five  cents  per  annum  per  share  on 
each  share  of  the  capital  stock  whenever 
the  annual  profits  thereof  shall  exceed  six 
percent."  The  president  of  the  company 
was  required  to  make  to  the  legislature  an 
annual  report  of  receipts  and  expenditures. 
Held,XhaX  the  right  of  the  legislature  to  im- 
pose the  charge  did  not  depend  upon  the 
taxing  power,  but  upon  the  charter  contract, 
and  that  the  tax  was  properly  payable  by 
the  corporation,  and  not  by  the  individual 
stockholders.  State  ex  rel.  v.  Seaboard  &* 
R.  R.  Co.,  52  Fed.  Rep.  450. 

A  railroad  lay  entirely  in  North  Carolina, 
but  terminated  at  the  Virginia  line,  where 
it  connected  with  a  road  of  that  state.  The 
legislatures  of  the  two  states  consolidated 
the  two  corporations,  the  North  Carolina  act 
declaring  that  the  stockholders  of  the  Vir- 
ginia company  were  thereby  constituted 
stockholders  in  the  North  Carolina  com- 
pany, with  the  same  rights,  powers,  privi- 
leges, and  franchises  as  if  they  had  sub- 
scribed an  equal  amount  to  it.  Held,  that 
this  act  operated  to  increase  the  shares  of 
the  North  Carolina  company  by  all  the 
shares  of  the  Virginia  company,  and  that 
the  latter  became  subject  to  taxation  as 
stipulated  in  the  charter  of  the  former,  and 
was  bound  to  pay  the  tax  on  all  its  shares. 
irrespective  of  the  proportion  of  its  property 
lying  in  North  Carolina,  or  of  the  citizenship 
of  its  stockholders.  State  ex  rel.  v.  Seaboard 
6-  R.  R.  Co.,  ^2  Fed.  Rep.  4^0. 

Ohio  Act  of  April  16,  1870,  entitled  "An 
act  to  enable  railroad  companies  to  redeem 
their  bonded  debts"  (67  Ohio  L.  89),  authot- 
izes  the  issue  of  certificates  of  preferred 


He 


i 


I 


:i:  1 


m 


I  !■' 


til 


m 


3  I 


i 


f  -ri 


.'3; 

48; 


»74 


TAXATION,  10^,  103. 


•tock,  and  not  of  certilicatM  of  indcbted- 
ncM.  The  holders  of  certificate*  issued 
under  it  are  stocltholderi,  and  not  creditors, 
and,  under  Ohio  Rev.  St.  §  2746,  are  not  re> 
quired  to  list  their  shares  for  taxation  in 
Ohio.  Miller  v.  Rati f  man,  43  Am.  6-  Eng. 
R.  Cat.  339, 47  Ohio  5/.  141 ,  24  N.  E.  Rep.  496. 

102.  Bonds  and  stook  held  in 
trust.  —  Mo.  Rev.  St.  of  186$,  §  2,  has  no 
application  to  shares  of  stock  held  by  a 
county  merely  as  trustee  for  individual  tax- 
payers, to  whom  the  shares  were  to  be 
transferred  on  producing  their  tax  receipts. 
Griswoldv.  St.  Louis,  K.  C.  &»  N.  R.  Co.,  8 
Mo.  App.  582,  app'x. 

Under  Pa.  Act  of  June  30, 1885,  §  4,  bonds 
issued  by  a  corporation  of  the  state  doing 
business  therein,  and  held  by  other  corpora- 
tions of  the  state  in  trust  for  persons  "  whose 
residence  is  unlcnown,"  are  subject  to  the 
state  tax  of  three  mills  imposed  by  said  sec- 
tion. Com.  V.  Lehigh  Valley  R.  Co.,  129  Pa. 
St.  429,  47  Phila.  Leg.  Int.  406,  25  W.  N.  C. 
15,  18  At  I.  Rep.  406. 

And  in  a  case  where  a  corporation  has 
wholly  disregarded  its  duty  and  neglected 
to  assess  and  collect  the  tax  on  such  bonds, 
as  required  by  section  4  of  said  act,  and  es- 
pecially in  the  absence  of  any  proof  to  the 
contrary,  the  bonds  must  be  presumed  to  be 
owned  by  residents  of  Pennsylvania.  Com. 
V.  Lehigh  Valley  R.  Co.,  129  Pa.  St.  429,  47 
Phila.  Leg.  Int.  406,  25  IV.  N.  C.  15. 18  Atl. 
Rep.  406. 

103.  Stock  in  foreign  corporo- 
tious.'*'  —  Shares  of  corporate  stock  owned 
by  residents  of  the  state  are  taxable,  al- 
though the  tangible  property  represented  by 
the  shares  is  in  anotiier  state  and  there  tax- 
able. The  constitutional  inhibition  against 
double  taxation  only  applies  to  such  tax- 
ation when  imposed  by  the  same  state.  San 
Francisco  v.  Fry,  63  Cal.  470. 

It  IS  provided  by  Conn.  Gen.  St.  §  3828, 
that  "  personal  property  in  this  state  or  else- 
where, not  exempt  by  this  title,  shall  for  the 
purpose  of  taxation  include  all  notes,  bonds, 
and  stocks  (nut  issued  by  the  United  States), 
moneys,  credits,  choses  in  action,  *  *  * 
goods,  chattels,  or  effects,  or  any  interest 
therein,  and  such  property  belonging  to  any 
resident  in  this  state  shall  be  set  in  his  list  in 
the  town  where  he  resides,  at  its  then  actual 
valuation,  except  when  otherwise  provided." 

*  Shares  of  stock  in  foreign  corporations,  see 
note.  13  Am.  &  Eng.  R.  Cas.  314. 


And  section  3830  provides  that  "the  Hat  of 
any  person  need  not  include  any  property 
situated  in  another  state  when  it  can  be  made 
satisfactorily  to  appear  to  the  assessors  that 
the  same  is  fully  assessed  and  taxed  in  such 
other  state,  to  the  same  extent  as  other  like 
property  owned  by  its  cicizens."  Held,  that 
the  stock  of  corporations  located  in  other 
states  falls  within  the  intent  of  section  3828, 
and  is  taxable  in  Connecticut  when  owned 
by  residents  of  that  state ;  and  that  it  makes 
no  difference  whether  the  corporations  are 
public  or  private  ones.  But  under  section 
3830  such  foreign  corporations  are  presumed 
to  be  taxed  in  the  state  where  they  are  lo- 
cated, and  it  is  the  duty  of  the  assessors  to 
ascertain  that  they  are  not  so  taxed,  and 
not  of  the  taxpayer  to  prove  that  they  are. 
Lockwootl  V.  Weston,  61  Conn.  211,  23  Atl. 
Rep.  9. 

Stock  in  the  company's  own  road  held  by 
itself,  or  in  other  roads  in  the  state,  whose 
charters  limit  or  exempt  taxation  thereon, 
and  whose  income  is  taxed,  is  not  liable; 
and  stock  held  by  the  company  in  railroads 
without  the  limits  of  the  state  is  not  taxable 
here.  Wright  v.  Southwestern  R.  Co.,  64 
Ga.  783. 

Under  111.  Revenue  Act  of  1872,  the  capi- 
tal stock  of  corporations  created  under  the 
laws  of  the  state  must  be  taxed,  and  the 
shares  of  stock  are  exempted  from  taxation  ; 
but  wheo  a  resident  of  the  state  owns 
shares  of  stock  in  a  corporation  created  by 
the  laws  of  another  state,  they  are  taxable 
against  him.  Porter  v.  Rock/ord,  R.  I.  d- 
St.  L.  R.  Co.,  76  ///.  561. 

A  city  has  the  right  to  tax  its  citizens  for 
stock  owned  by  them  in  a  foreign  railroad 
company,  although  a  tax  has  been  paid 
thereon  in  the  state  where  the  corpora- 
tion  is  located.  Seward  v.  Rising  Sun,  13 
Am.  6*  Eng.  R.  Cas.  315,  79  Ind.  351. 

if  a  railroad  corporation  is  situated  in 
another  state,  and  the  road  and  all  property 
of  the  road  are  taxed  in  that  state  to  the 
corporation  on  the  same  valuation,  and  at 
the  same  rate,  as  the  property  of  individuals, 
a  stockholder  residing  in  New  Hampshire 
is  not  liable  to  be  taxed  there  for  his  stock 
in  the  road.    Smith  v.  Exeter,  37  N.  H.  556. 

Residents  of  New  Jersey  are  liable  to  be 
taxed  on  the  value  of  stock  owned  by  them 
in  railroad  corporations  out  of  the  state. 
The  tax  law  of  1851  taxes  only  chattels  with- 
in the  state,  but  it  taxes  residents  for  debts 
due  to  them  from  non-residents  and  stocks 


TAXATION,  104,  lOS. 


876 


the  list  of 
Y  property 
in  be  made 
:ssors  that 
ed  in  such 
other  like 
HM,  that 
i  in  other 
:tion  3828, 
len  owned 
It  it  makes 
'ations  are 
ler  section 
!  presumed 
ley  are  lo- 
isessors  to 
taxed,  and 
t  they  are. 
II,  z^Atl. 

ad  held  by 
ate.  whose 
n  thereon, 
not  liable; 
n  railroads 
lot  taxable 
R.  Co..  64 

I,  the  capi- 
under  the 
j,  and  the 
1  taxation ; 
tate  owns 
created  by 
ire  taxable 
d,  R.  I.  4- 

:itizens  for 
;n  railroad 
been  paid 
e  corpora- 
>{f  Sun,  13 

35'- 

situated  in 
ill  property 
tate  to  the 
ion,  and  at 
ndividuals, 
Hampshire 
r  his  stock 
N.  H.  556. 
iable  to  be 
:d  by  them 

the  state, 
attels  with- 
ts  (or  debts 
and  stocks 


ia  foreign  corporations ;  this  is  the  intention 
and  the  construction  of  the  act,  and  the 
legislature  has  power  to  impose  such  a  tax. 
State  {Fish,  Pros.)  v.  Branin.  23  N.  J.  L.  484. 

The  provision  of  Ohio  Act  of  April  5, 
i859>  §  3  (S-  &  C.  1438),  that  "  no  person 
shall  be  required  to  include  in  his  statement 
as  a  part  of  the  personal  property,  moneys, 
credits,  investments  in  bonds,  stocks,  joint- 
stock  companies,  or  otherwise,  which  he  is 
required  to  list,  any  share  or  portion  of  the 
capital  or  property  of  any  company  or  cor- 
poration which  is  required  to  list  or  return 
its  capital  and  property  for  taxation  in  this 
state,"  does  not  apply  to  shares  of  a  railroad 
company  which  is  formed  by  the  consolida- 
tion of  an  Ohio  company  with  companies  of 
other  states,  notwithstanding  such  company 
pays  taxes  in  Ohio  on  the  portion  of  its 
property  which  is  situated  there.  Let  v. 
Sturges,  46  Ohio  St.  1 53, 19  N.  E.  Rep.  560.— 
Quoting  West  Wis.  R.  Co.  v.  Trempealeau 
County  Sup'rs,  93  U.  S.  595.  Reviewing 
Bradley  v.  Bauder,  36  Ohio  St.  28. 

A  construction,  by  officers  having  the  en- 
forcement of  the  tax  laws  of  Ohio,  since 
the  enactment  thereof,  to  the  efTect  that, 
under  such  laws,  shares  held  by  residents  of 
Ohio  of  stock  of  foreign  railroad  corpora- 
tions having  property  in  that  state  on  which 
they  pay  taxes,  and  of  consolidated  railroad 
companies,  are  not  taxable  in  Ohio,  does  not 
bind  the  successors  of  such  officers,  nor  the 
state,  in  the  property  assessment  and  col- 
lection of  taxes  upon  such  shares.  Lee  v. 
Sturges,  46  Ohio  St.  153,  19  A'^  E.  Rep.  560. 

104.  Foreign  -  held  stock  and 
bonds.* — The  interests  represented  by  the 
shares  of  stock  in  a  company  organized 
under  the  laws  of  the  state  are  within  the 
jurisdiction  of  the  state,  even  when  the 
owners  thereof  are  non-residents ;  and  the 
provisions  in  Iowa  Code  of  1851,  §  462,  and 
in  Laws  of  1858.  ch.  152,  §  7,  for  taxing  the 
shares  of  non-resident  stockholders  in  rail- 
road companies  in  this  state,  are  valid  as 
within  the  scope  of  legislative  power.  Fax- 
ton  V.  McCosh,  12  Io7va  527.— FOLLOWED  IN 
Davenport  v.  Mississippi  &  M.  R.  Co.,  12 
Iowa  539.  Reviewed  in  Iowa  Homestead 
Co.  V.  Webster  County,  21  Iowa  221. 

A  non-resident  holder  of  shares  in  a  cor- 
poration in  North  Carolina  is  not  liable  to 
tax  there.     Such   property  is  beyond  the 


*  Tax  on  foreign-held  stock  and  bonds,  see 
note,  13  Am.&  Eng.  R.Cas.  317. 


jurisdiction  of  the  state,  and  subject  only  to 
that  in  which  the  holder  has  his  domicil. 
The  ruling  in  this  case  has  no  application 
to  banking  corporations  formed  and  oper- 
ated under  tl.e  act  of  congress.  North 
Carolina  R,  Co.  v.  Alamance  Com'rs,  91  A^. 
Car.  454.— Reviewing  Minot  v.  Philadel- 
phia W.  &  B.  R.  Co.,  18  Wall.  (U.  S.)  206. 

A  resident  in  the  District  of  Columbia 
appointed  by  will  as  trustee  of  his  estate  a 
citizen  and  resident  of  Pennsylvania.  The 
trustee  kept  the  securities  of  the  estate  with 
a  trust  company  in  the  city  of  Washington. 
The  only  beneficiary  under  the  trust  was 
the  widow  of  the  testator,  who  received  a 
fixed  annuity  each  year.  The  remainder  of 
the  income  was  given  to  persons  residing 
in  Pennsylvania.  Among  the  securities  of 
the  estate  were  the  bonds  of  a  railroad 
of  Pennsylvania.  Held,  that  the  bonds 
were  liable  to  the  state  tax  under  Pa.  Act  of 
June  8,  1891  (P.  L.  229),  and  that  the  com- 
pany had  a  right  to  retain  the  amount  of 
this  tax  from  the  interest  on  the  bonds. 
Guthrie  v.  Pittsburgh,  C.  &>  St.  L.  R,  Co., 
158  Pa.  St.  433,  27  Atl.  Rep.  1052. 

Non-resident  bondholders  are  not  taxable 
in  this  state  upon  bonds  of  domestic  corpo- 
rations held  and  owned  by  them.  Neither 
the  bondholder  nor  the  property  is  within 
the  jurisdiction  of  the  state.  Tenn.  Act 
of  1887,  ch.  2,  §  8,  so  far  as  it  undertakes  to 
impose  such  tax  upon  previously  issued 
bonds,  is  invalid.  South  Nashville  St.  R. 
Co.  V.  Morrow,  39  Am.  &*  Eng.  R.  Cas.  518, 
87  Tenn.  406,  2  L.  R.  A.  853.  11  S.  IV. 
Rep.  348. 

A  state  cannot  tax  the  bonds  of  a  railroad 
company  held  by  persons  living  out  of  the 
state.  Coin.  v.  Chesapeake  &*  O.  R.  Co.,  27 
Gratt.  ( Va.)  344. 

t05.  Shares  of  stock  in  express 
companies. — The  American  Express  com- 
pany and  the  United  States  Express  company 
are  associations  in  the  nature  of  partnerships, 
the  capital  stock  of  which  is  divided  into 
shares,  which  are  transferable  like  those  of 
a  corporation.  Held,  that,  for  purposes 
of  taxation,  the  shares  were  clearly  personal 
property  within  the  statute,  and  the  court 
inclined  to  the  opinion  that  they  should  be 
treated  as  if  they  were  shares  of  stock  in  a 
priviite  corporation.  Lockwood  v.  Weston, 
61  Conn.  211,  23  Atl.  Rep.  9. 

Va.  Act  of  Feb.  15,  1866.  §  93.  for  the 
assessment  of  taxes,  embraces  express  com- 
panies chartered  by  the  state ;  and  the  pres- 


s 


;5 


M 


:i;( 


876 


TAXATION,  106-108. 


sjl' 


ent  stockholders  are  personally  liable  for 
taxes  due  to  the  commonwealth  from  the 
company  incurred  while  they  were  stock- 
holders. Anderson  v.  Com,,  i8  GraU. 
( ya.)  295. 

100.  Undivided  profits.*  —  Under 
the  Act  of  Congress  of  July  14,  1870,  §  15. 
imposing  a  tax  of  two  and  a  half  per  cent, 
on  undivided  profits  of  corporations  which 
have  been  "added  to  any  surplus,  contin- 
gent, or  other  fund,"  a  railroad  is  not  taxa- 
ble for  profits  used  for  construction.  Mar- 
guette,  H.  &•  O.  Ji.  Co.  v.  United  States,  123 
U.  S.  722.  8  Sup.  Ct.  Rep.  319. 

A  tax  can  be  just  and  equal  on  railroad 
corporations  only  by  taxing  the  profits. 
Paine  v.  Wright,  6  McLean  {[/.  S.)  395. 

The  investments  in  such  an  enterprise  are 
materially  different  from  investments  in 
real  estate.     Paine  v.  IVright,  6  McLean 

{U.s.)m- 

107.  Dividends.  —  A  company  was  in- 
corporated subject  to  the  provisions  of  Pa. 
Railroad  Law  of  February  19,  1849,  with  a 
provision  that  it  should  not  be  taxed  until 
its  dividends  amounted  to  six  per  cent,  per 
annum.  A  subsequent  act  subjected  all 
corporations  to  a  tax  on  each  one  per  cent, 
of  dividends.  Held,  that  the  company  was 
taxable  under  the  latter  act  on  a  dividend 
less  than  six  per  cent,  per  annum.  The  pro- 
vision in  the  act  of  1849  allowing  the  legis- 
lature  to  amend,  etc.,  charters  authorized 
the  imposition  of  the  tax  by  the  latter  act. 
Com.  V.  Fayette  County  K.  Co.,  55  Pa.  St.  452. 

A  company  leased  its  road  to  another  cor- 
poration for  999  years,  at  twelve  per  cent, 
per  annum  on  its  capital ;  the  first  company 
increased  the  number  of  its  shares  seventy- 
one  per  cent,  (the  par  value  of  both  the  origi- 
nal and  increased  shares  being  fifty  dollars), 
on  which  the  stockholders  were  to  receive 
seven  per  cent,  dividends,  being  the  same 
amount  they  would  have  received  on  the 
original  number  of  shares  at  twelve  per  cent. 
Held,  that  this  increase  was  not  subject  to 
state  taxation  as  a  dividend  or  profits. 
Com.  V.  Pittsburg,  Ft.  IV.  &*  C.  R.  Co.,  74 
Pa.  St.  83,  2  Am.  Ry.  Rep.  220.— FOLLOWED 
IN  Com.  V.  Erie  &  P.  R.  Co.,  74  Pa.  St.  94. 

Pa.  Act  of  1872  provided  that  defend- 
ant company  "  shall  annually  pay  into  the 
treasury  of  the  city  of  Philadelphia,  for  the 
use  of  iaid  city,  a  tax  of  wt.  per  centum  upon 
so  much  of  any  dividend  declared  which 

*See  also  Revenue,  7. 


may  exceed  six  p«r  e*n*  im  upon  their  tald 
capital  stock."  Held,  that  this  meant  six 
per  cent,  upon  so  much  of  the  capital  stock 
as  was  paid  in,  and  that  if  the  dividends  for 
the  whole  year  amounted  to  over  six  per 
cent,  the  company  was  liable  to  the  tax. 
The  company  cannot  escape  taxation  by  de- 
claring dividends  of  less  than  six  per  cent., 
if  all  the  dividends  in  one  year  amount  to 
over  six  per  cunt.  Philadelphia  v.  Ri^e 
Ave.  Pass.  R.  Co.,  1 3  Am.  4-  Eng.  R.  Cat.  341, 
102  Pa.  St.  190.— Following  Citizens' 
Pass.  R.  Co.  V.  Philadelphia,  49  Pa.  St.  251 ; 
Second  &  T.  St.  Pass.  R.  Co.  v.  Philadel- 
phia, 51  Pa.  St.  465;  Philadelphia  v.  Phila- 
delphia &G.  F.  Pass.  R.  Co.,  52  Pa.  St.  177. 

A  corporation,  engaged  in  the  business  of 
manufacturing  and  leasing  sleeping  cars, 
set  apart  as  capital  a  fund  accumulated 
from  the  rentals  of  its  cars,  etc.,  and  subse- 
quently, in  good  faith,  in  reduction  of  its 
capital  stock,  paid  therefrom  to  its  stock- 
holders twelve  dollars  per  share,  reducing 
the  par  value  of  each  share  by  that  amount. 
Such  division  among  the  stockholders,  being 
an  actual  bona  fide  reduction  of  capital 
stock,  and  neither  made,  declared,  nor  re- 
turned as  a  dividend,  either  of  annual  profits 
or  of  accumulated  surplus,  did  not  subject 
the  capital  stock  10  taxation,  under  Pa. 
Act  of  June  7,  1879,  5  4  (P.  L.  114).  on  the 
basis  of  a  dividend  of  twelve  dollars  per 
share.  Com.  v.  Central  Transp.  Co.,  145  T'a. 
St.  89,  22  At  I.  Rep.  209. 

A  company  in  embarrassed  circumstances 
sold  a  large  amount  of  stock  below  par,  and 
afterwards  paid  a  dividend  on  its  whole 
capital.  There  was  no  proof  that  this  was 
profits.  Held,  that  the  company  was  not 
liable  to  the  tax  on  profits  for  this  amount. 
Com.  V.  Erie  &*  P.  R.  Co.,  10  Phila.  (Pa.) 
465.  —  Distinguishing  Com.  v.  Cleveland, 
P.  &  A.  R.  Co.,  29  Pa.  St.  370;  Lehigh 
Crane  Iron  Co.  v.  Com.,  55  Pa.  St.  448; 
Atlantic  &  O.  Tel.  Co.  v.  Com.,  66  Pa.  St.  57. 

108.  Indebtedness.  —  A  corporation 
is  not  taxable  upon  the  value  of  the  debts 
it  owes,  and  to  assess  a  corporation  on  the 
amount  of  its  debts  by  the  state  board  of 
equalization  would  be  a  clear  violation  of 
law.  Porter  v.  Rockford,  R.  I.  &•  St.  L.  R. 
Co.,  76  ///.  561.  —  Reviewing  Com.  v. 
Hamilton  Mfg.  Co.,  12  Allen  (Mass.)  300. 

The  solvency  of  a  corporation,  for  the 
purposes  of  taxation  upon  its  bonded  in- 
debtedness under  Pa.  Act  of  June  30,  1885 
(P.  L.  194),  will  be  assumed,  on  proof  that 


TAXATION,  lOO.  110. 


077 


the  interest  on  such  indebtedness  has  been 
paid.    Com.  v.  Philadelphia  &*  H.  C.  &*  I. 
Co.,  137  Pa.  St.  481,  20  Atl.  Ri-p.  531,  580. 
100.  Certiflciitcti  of  indubtcduoHS. 

—The  Act  of  Congress  of  Feb.  8,  1875,  §  19, 
providing  for  a  tax  on  corporations  of  ten 
per  cent,  of  the  amount  of  their  own  notes 
used  for  circulation  and  paid  out  by  them, 
does  not  apply  to  certificates  of  indebted- 
ness by  a  railroad  company  and  payable  to 
bearer  at  a  date  nnmed.  Philadelphia  <S>» 
A'.  R.  Co.  V.  Pollock,  17  Atn.  &«  Eng.  R.  Cas. 
483, 19  Fed.  Rep.  401.— Following  United 
States  V.  Wilson,  106  U.  S.  6?j,  2  Sup.  Ct. 
Rep.  85. 

110.  Paynieuts  of  iiitcreHt.  —  The 
receivers  of  a  railroad  company,  which  was 
the  guarantor  of  bunds  of  a  coal  company, 
purchased,  from  the  iiolders  of  some  of  the 
bonds,  interest  coupons  at  a  discount.  Said 
coupons  were  then  canceled,  surrendered  to 
the  coal  company,  and  charged  to  it  in  an 
account  current.  Held,  that  for  purposes 
of  taxation  this  was  equivalent  to  payment 
of  the  interest  by  the  coal  company,  and 
it  was  the  duty  of  the  treasurer  to  make 
the  proper  assessment,  the  commonwealth 
not  being  bound  to  await  the  general  settle- 
ment of  accounts  between  the  two  com- 
panies. Com.  V.  Philadelphia  &*  R.  C.  &* 
I.  Co.,  137  Pa.  St.  481,  20  Atl.  Rep.  531,  580." 

Pa.  Act  of  June  30,  1885,  §  4,  requiring 
the  deduction  of  a  state  tax  by  corporate 
ofhcers  in  paying  interest  on  scrip,  bond,  or 
certificate  of  indebtedness  issued  to  resi- 
dents of  the  commonwealth,  with  penalty 
for  non-compliance,  applies  to  a  foreign  cor- 
poration upon  bonds  owned  by  either  in- 
dividuals or  corporations  in  Pennsylvania 
and  acting  as  trustees  for  persons  whose 
residence  is  unknown,  although  the  bonds 
were  originally  issued  and  sold  to  non-resi- 
dents. Com.  V.  New  York,  L.  E.  &•  IV.  R. 
Co.,  150  Pa.  St.  234,  24  Atl.  Rep.  609. 

Where  interest  was  payable  00  these 
bonds  June  i,  1889,  the  date  of  the  passage 
of  the  act,  only  one  half  year's  tax  will  be 
charged  for  1 889.  Com.  v.  New  York,  L.  E. 
&»  W.  R.  Co.,  1 50  Pa.  St.  234, 24  Atl  Rep.  609. 

Where  bonds  of  a  practically  insolvent 
corporation,  witii  interest  in  default,  are  in 
good  faith  exchanged  for  bonds  which  fund 
the  arrears  of  interest,  the  funding  of  the 
interest  is  not  such  payment  as  will  render 
the  company  liable  for  tax  on  such  interest, 
under  the  act  of  1885.  The  payment  con- 
templated by  the  act  is  payment  in  money. 


Com,  v.  Philadelphia  &*  R.  R,  Co.,  iSO  Pa, 
St.  312,  24  Atl.  Rep.  612. 

A  solvent  corporation,  it  seems,  may  not 
pay  its  interest  in  stock  or  scrip,  or  other 
equivalent  money,  and  thereby  escape  the 
tax.  Com.  V.  Philadelphia  &*  R.  R.  Co.,  1 50 
Pa.  St.  312,  24  Atl.  Rep.  612. 

A  corporation,  finding  itself  unable  to 
meet  the  interest  on  a  large  body  of  its  obli- 
gations, was,  by  tlie  joint  action  of  stock- 
holders and  creditors,  placed  in  the  hands 
of  a  receiver,  and  a  plan  of  reorganization 
effected.  In  pursuance  of  such  plan,  certain 
of  the  bondholders  deposited  their  bonds, 
bearing  six  per  cent,  interest,  with  an  agent 
of  the  creditors,  who  gave  therefor  negoti« 
able  certificates  bearing  four  per  cent.,  and 
interest  on  these  certificates  was  advanced, 
to  be  treated  as  interest  if  the  reorganiza- 
tion went  through,  but  if  not,  as  advances 
to  be  repaid.  The  reconstruction  trustees 
also  made  payment  of  interest  with  money 
voluntarily  subscribed  by  certain  stock  and 
junior  loan  holders,  the  trustees  taking  an 
assignment  of  coupons  as  means  of  reim> 
bursement.  Held,  that,  as  the  payment  was 
a  voluntary  advance  of  money  by  parties 
not  liable  therefor,  and  not  as  agents  for 
the  corporation,  it  was  not  a  payment  of 
interest  by  the  corporation,  liable  to  tax 
under  the  act  of  1 885.  Com.  v.  Philadelphia 
6-  R.  R.  Co.,  1 50  Pa.  St  24  Atl.  Rep. 

612.  —  Distinguishing  i.  v.  Philadel- 
phia &  R.  R.  Co.,  137  Pa.  at.  481. 

A  subsequent  deposit  by  the  corporation 
to  repay  the  advances  for  preceding  years, 
although  a  ratification  and  adoption  of  what 
had  been  done  as  having  been  done  on  be- 
half of  the  company  as  well  as  for  its  bene- 
fit, is  not  such  a  payment  of  the  interest 
that  the  company  is  bound  to  account  for 
the  tax  under  the  act  of  1885.  The  settle- 
ment was  between  separate  parties  dealing 
at  arm's  length,  and  was  the  acceptance  of 
a  completed  act,  not  as  it  might  have  been, 
nor  even  necessarily  as  it  ought  to  have 
been,  but  as  it  actually  was  at  that  time. 
And  as  the  tax  was  to  be  deducted  at  the 
time  of  payment  from  the  lien  holders,  it 
could  not  be  done  afterwards.  Com.  v. 
Philadelphia  &*  R.  R.  Co.,  150  Pa.  St.  312, 
24  .,4//.  Rep.  612. 

Such  ratification  and  deposit  constitute 
an  agency  as  to  future  payment  of  interest 
and  bind  the  corporation  for  the  tax  on 
such  payments,  in  the  absence  of  sufficient 
excuse  for  failure  to  deduct  the  same.  Com. 


25 

'Ml 

111 

s 


'w 

2 


878 


TAXATION,  111-118. 


V.  PhilatUlphia  5*  It.  H.  Co.,  iSo  Pa.  St. 
31a,  2^Atl.Rtp.  61a. 

Such  deposit  by  the  corporation  with  the 
agent,  to  be  paid  by  the  agent  to  the  bond- 
holders to  make  up  the  full  amount  of  the 
buck  interest  due  on  their  bonds,  is  a  pay- 
ment of  interest  by  tiie  corporation  subject 
to  the  'tax  under  the  Act  of  1885.  Com. 
V.  Philadelphia  &*  /f.  P.  Co.,  150  Pa.  St. 
312,  2\Ail.  Rep.  613. 

Where  the  payment  of  interest  is  for  a 
portion  of  a  year  only,  the  tax  will  be  ap- 
portioned. Com.  V.  Philadelphia  &*  R.  R. 
Co.,  150  Pa.  St.  31a,  24  Atl.  Rep.  61  j. 

111.  Loans.— Under  Pa.  Act  of  April 
30,  1864,  corporations  are  to  make  returns, 
and  are  liable  for  tlie  tax  on  loans,  although 
the  duty  of  deducting  the  tax  is  imposed  by 
law  upon  officers  of  the  corporation.  Buf- 
falo &*E.  R.  Co.  V.  Com.,  3  Brrws.  {Pa.)  374. 

In  imposing  the  tax  upon  loans,  the  state 
if  not  bound  to  inquire  where  the  creditors 
reside,  but  can  impose  the  tax,  and  require 
the  officers  of  the  company  to  retain  it  out 
of  the  interest.  Such  a  direction  makes  the 
corporation  liable  for  the  tax.  Buffalo  &* 
E.  R.  Co.  V.  Com.,  3  Brews.  (Pa.)  374. 

112.  Damages  iu  coudomnation 
proceedings. — A  statute  provided  for  the 
assessment  of  damages  by  appraisers  in 
condemnation  proceedings,  and  that  when 
their  report  was  filed  it  should  have  the 
effect  of  a  judgment,  but  that  the  compiny 
might  abandon  its  location  at  any  time 
during  sixty  days  and  thus  avoid  payment  of 
the  amount.  During  the  sixty  days  a  judg- 
ment for  damages  was  taxed  to  the  land- 
owner as  "money  at  interest."  Held,  that 
the  landowner  only  had  an  expectancy  or 
possibility  of  a  positive  judgment  for  the 
amount  of  damages  during  the  sixty  days, 
and  therefore  it  was  not  taxable.  Arnold 
V.  Middletown,  41  Conn.  206. 

b.  Lands  Held  under  Government 
Grants.* 

113.  United  States  courts.— Lands 

sold  or  granted  by  the  United  States  may 

*  Property  Is  not  taxable  when  it  belongs  to 
United  States,  see  note.  13  Am.  &  Eng.  R. 
Cas.  344. 

Taxation  of  public  lands,  see  note,  13  Am.  tt 
Eng.  R.  Cas.  375. 

Taxation  of  railroad  land  grants,  see  note,  17 
Am.  &  Eng.  R.  Cas.  397. 

When  land  grants  become  taxable,  see  note, 
48  Am.  &  Eng.  R.  Cas.  654. 


be  taxed  before  the  government  has  parted 
with  the  legal  title  by  issuing  a  patent ;  but 
this  principle  is  applicable  only  to  cases 
where  the  right  to  the  patent  is  complete, 
and  the  equitable  title  fully  vested  without 
anything  more  to  be  paid  or  any  act  done 
going  to  the  foundation  of  the  right.  Kan- 
sas Pac.  K.  Co.  v.Prescott,  16  Wall.  (U.  S.) 
603,  4  Am.  Ry.  Rep.  166.— DISTINGUISHED 
IN  Union  Pac.  R.  Co.  v.  McShane,  3  Dill.  (U. 
S.)  303;  Cass  County  v.  Morrison,  28  Minn. 
357.  Explained  in  Wisconsin  C.  R.  Co. 
v.  Taylor  County,  1  Am.  &  Eng.  R.Cas.  533, 
5a  Wis.  37.  Followed  in  Northern  Pac. 
R.  Co.  V.  Traill  County,  25  Am.  &  Eng.  R. 
Cas.  364,  115  L.  S.  600;  New  Orleans  Pac. 
R.  Co.  V.  United  States,  33  Am.  &  Eng.  R. 
Cas.  74.  124  U.  S.  124;  Central  Pac.  R.  Co. 
V.  Howard,  51  Cal.  229.  Quoted  in  North- 
ern Pac.  R.  Co.  V.  Cannon,  46  Am.  &  Eng. 
R.  Cas.  419,  46  Fed.  Rep.  324;  Missouri 
River,  Ft.  S.  A  G.  R.  Co.  v.  Morris,  13 
Kan.  302. 

Hence  where  there  has  been  a  large 
grant,  e.  g.,  to  a  great  railroad  company  to 
aid  in  the  construction  of  its  road,  if  pre- 
payment by  the  grantee  of  the  cost  of  sur- 
veying, selecting,  and  conveying  the  lands 
granted  be  required  by  the  statute  making 
the  grant  before  any  of  the  lands  "  shall  be 
conveyed,"  or  if  the  grant  contain  a  proviso 
that  any  of  the  lands  granted  and  not  sold 
by  the  company  within  three  years  after  the 
final  completion  of  the  road  shall  be  liable 
to  be  sold  to  actual  settlers  under  the  pre- 
emption laws,  at  a  price  named  per  acre,  the 
money  to  be  paid  to  the  company — no  title, 
in  the  first  instance  unless  there  be  the 
required  prepayment,  nor  in  the  second 
instance  at  all,  vests  in  the  grantee  in  such 
a  way  as  that  a  tax  sale  will  divest  the  gov- 
ernment title.  Kansas  Pac.  R.  Co.  v.  Pres- 
cott,  16  Wall.  {U.  S.)  603, 4  Am.  Ry. Rep.  166. 

Where  patents  have  issued  for  lands 
granted  to  railroads,  such  lands  are  liable  to 
■tate  taxation  whether  the  costs  of  survey 
have  been  paid  or  not.  Union  Pac.  R.  Co. 
V.  McShant,  22  Wall.  ( U.  S.)  444, 1 1  Am.  Ry. 
Rep.  456.— Followed  in  New  Orleans  Pac. 
R.  Co.  V.  United  States,  33  Am.  &  Eng.  R. 
Cas.  74,  124  U.  S.  124.  Quoted  in  North- 
ern Pac.  R.  Co.  V.  Cannon,  46  Am.  &  Eng. 
R.  Cas.  419,  46  Fed.  Rep.  224. 

Lands  granted  to  the  Northern  Pacific 
railroad  are  not  subject  to  state  or  terri- 
torial taxation  while  the  title  is  held  in  the 
United  States  as  security  for  cost  of  survey- 


TAXATION,  114-117. 


879 


ing  as  required  by  the  Act  of  Congresi  of 
July  17,  1870,  though  the  roud  be  completed. 
Northirn  Pac.  R.  Co.  v.  Traill  County,  15 
Am.  &*  Eng.  R.  Cas.  364,  1156/.  S.  600,  6 
Sup.  Ct.  Rep.  201.— Following  Kansas 
Pac.  R.  Co.  V.  Prescott,  16  Wall.  (U.  S.) 
C03;  Union  Pac.  R.  Co.  v,  McShane,  33 
Wall.  444.— Applied  in  Tarpey  v.  Deseret 
Salt  Co.,  5  Utah  494.  Not  followed  in 
Northern  Pac.  R.  Co.  v,  Wright,  51  Fed. 
Rep.  68.  Quoted  in  Northern  Pac.  R.  Co. 
V.  Cannon,  46  Am.  &  Eng.  R.  Cas.  419, 46 
Fed.  Rep.  324 ;  State  v.  Central  Pac.  R.  Co., 
40  Am.  &  Eng.  R.  Cas.  467,  20  Nev.  373. 
Reconciled  in  Denny  v.  Dodson,  13  Sawy. 
(U.  S.)  68. 

When  by  act  of  congress  lands  are 
granted  in  pratinti  to  a  state  in  aid  of  the 
construction  of  a  railroad,  and  it  is  provided 
that  upon  the  completion  of  sections  of 
twenty  miles  patents  shall  Issue  for  such 
portions  of  the  lands  granted  as  shall  have 
been  earned,  an  indefeasible  right  vests  in 
the  railroad  upon  the  completion  of  its 
road,  and  the  land  is  subject  to  taxation, 
although  the  land  department  has  errone- 
ously refused  to  issue  patents  therefor. 
Wisconsin  C.  R.  Co.  v.  Prict  County,  41  Am. 
&»  Eng.  R.  Cas.  669,  133  C/.  S.  496,  10  Sup. 
Ct.  Rep.  341.— Followed  in  Northern  Pac. 
R.  Co.  7A  Wright,  51  Fed.  Rep.  68;  Davis  v. 
Capitol  Phosphate  Co.,  57  Fed.  Rep.  118. 
Quoted  in  Northern  Pac.  R.  Co.  v.  Can- 
non, 46  Am.  &  Eng.  R.  Cas.  419,  46  Fed. 
Rep.  224. 

The  land  grant  made  to  plaintiff  com« 
pany  by  Act  of  Congress  of  July  2,  1864, 
passed  immediate  title  to  all  land  not  spe- 
cifically reserved,  and  the  grant  attached  to 
the  specific  sections  upon  a  definite  location 
of  the  road;  therefore  such  lands  became 
taxable  to  the  company  when  the  road  was 
located  and  built,  though  no  patents  had 
yet  issued,  and  the  government  officers  had 
refused  to  issue  patents  until  satisfied  that 
the  lands  did  not  contain  minerals.  North- 
trn  Pac.  R.  Co.  v.  Walker.  47  Fed.  Rep.  681. 
—Applied  in  Northern  Pac.  R.  Co.  v. 
Wright,  51  Fed.  Rep.  68. 

The  future  discovery  of  minerals  in  such 
lands  will  not  divest  the  company's  title, 
but  will  inure  entirely  to  its  benefit.  North- 
ern Pac.  R.  Co.  V.  Walker,  47  Fed.  Rep.  681. 

1 14.  Arizona. — Lands  which  have  not 
been  surveyed  are  not  assessable.  Atlantic 
&•  P.  R.  Co.  V.  Yavapai  County,  {Ariz.)  39 
■Am.  ^Eng.  R.  Cas.  543,  21  Pac.  Rep.  768. 


115.  California.  —  Where  lands  are 
granted  by  the  general  government  to  a 
company  on  certain  conditions,  as  that  the 
title  thereto  shall  attach  upon  the  comple* 
tion  of  sections  of  the  road,  such  lands  are 
not  subject  to  state  taxation  until  the  con- 
ditions have  been  complied  with,  and  the 
company  is  entitled  to  a  patent.  Central 
Pac.  R.  Co.  v.  Howard,  51  Cal.  229,  12  Am. 
Ry.  Rep.  98.— Following  Kansas  Pac.  R. 
Co.  V.  Prescott,  16  Wall.  (U.  S.)  604. 

If  a  grant  by  congress  to  a  company  of 
public  land  to  aid  in  the  construction  of  its 
railroad  contains  conditions  by  which  the 
grant  is  liable  to  be  defeated,  the  land 
cannot  be  taxed  while  the  conditions  are 
in  force  and  before  they  have  been  fulfilled. 
Central  Pac.  R.  Co.  v.  Howard,  52  Cal.  337, 
20  Am.  Ry.  Rep.  iii. 

Under  the  act  of  congress  admitting  the 
state  of  California  into  the  Union  and  pro- 
viding that  the  state  "shall  never  interfere 
with  thf  primary  disposal  of  the  public  lands 
within  its  limits,  and  shall  pass  no  law  and 
do  no  act  whereby  the  title  of  the  United 
States  shall  be  impaired  or  questioned,"  and 
"  shall  never  levy  any  tax  or  assessment  of 
any  description  whatever  upon  the  public 
domain  of  the  United  States,"  lands  cannot 
be  taxed  by  the  state  until  they  have  been 
patented  to  individuals  or  a  corporation  by 
the  general  government,  or  until  such  per- 
sons or  corporation  have  become  vested 
with  a  perfect  equitable  title.  Central  Pac. 
R.  Co.  V.  Howard,  53  Cal.  327,  20  Am.  Ry. 
Rep.  lit. 

110.  Illinois.— Lands  selected  by  the 
Illinois  Central  railroad  company  under 
an  act  of  congress  are  liable  to  taxation 
when  sold  by  the  company  and  paid  for  by 
the  purchaser,  although  no  conveyance  may 
have  been  made.  Champa^n  County  v. 
Reed,  100  ///.  304. 

117.  Iowa.— When  lands  are  acquired 
from  the  government  after  the  close  of  the 
assessment  for  the  current  year,  they  should 
not  be  assessed  for  taxation  until  the  year 
following.  Tallman  v.  Butler  County  Treat' 
urer,  12  Iowa  531. — Applying  Bangor  &  P. 
R.  Co.  V.  Harris,  21  Me.  533.  Following 
Des  Moines  N.  &  R.  Co.  v.  Polk  County, 
10  Iowa  I. 

Under  Iowa  Code  of  1851,  \  462,  the 
lands  granted  to  the  state  by  Act  of  Con- 
gress of  May  15,  1856,  for  the  purpose  of 
aiding  in  the  construction  of  railroads,  are 
not  subject  to  taxation  as  lands  while  tbej 


5 


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IN 
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IB 

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680 


TAXATION,  117. 


M 


remain  the  property  of  the  companies  to 
which  they  were  granted  by  the  state.  They 
are  taxable  only  through  ths  shares  of  the 
stockholders.  Tallman  v.  Butler  County 
Treasurtr,  i2  Iowa  531.— Reviewed  in 
Iowa  Homestead  Co.  v.  Webster  County, 
21  Iowa  221. 

But  such  lands  are  liable  to  taxation  by 
the  state  after  the  railroad  companies  to 
which  they  were  granted  become  possessed 
of  the  unconditional  title  in  fee,  and  before 
they  have  been  alienated  by  said  companies. 
Burlington  &*  M.  R.  R.  Co.  v.  ILiynt,  19 
Iffwa  137. 

Lands  held  by  acompany  under  land  grant 
acts  of  congress,  which  have  never  been 
certified  or  set  apart,  and  which  are  incapa- 
ble of  identification,  are  not  taxable.  Cedar 
Rapids  6r*M.  R.  R.  Co.  v.  Woodbury  County, 
29/<n(/a  247.— Distinguishing  Iowa  Home- 
stead Co.  V.  Webster  County,  21  Iowa  221 ; 
Dubuque  &  P.  R.  Co.  v.  Webster  County, 
21  Iowa  235.— Followed  in  Iowa  R.  Land 
Co.  V.  Story  County,  36  Iowa  48;  Cedar 
Rapids  &  M.  R.  R.  Co.  v.  Carroll  County, 
41  Iowa  153. 

Where  a  company  has  fully  earned  lands 
granted  to  it  by  the  general  government  by 
the  completion  of  its  road  in  sections  as 
required,  such  lands  are  liable  to  taxation 
although  no  certificate  has  yet  issued  for 
them.  Iowa  HoMestead  Co.  v.  Webster 
County,  2r  Iowa  .  zi.  Dubuque  &*  P.  R, 
Co.  V.  Webster  Ccunty,  21  Iowa  235.— Dis- 
tinguished in  Cedar  Rapids  &  M.  R.  R. 
Co.  v.  Woodbury  County,  29  Iowa  247. 
J  .  LOWED  IN  Cedar  Rapids  &  M.  R.  R. 
Cc.  V.  Carroll  County,  41  Iowa  153. 

The  patents  issued  by  the  governor  to 
the  Iowa  Falls  and  Sioux  City  railroad  com- 
pany, under  Iowa  Act  of  April  7,  1868,  §  4, 
are  conclusive  evidence  that  the  lands  men- 
tioned therein  were  then  earned.  Accord- 
ingly, the  lands  were  not  subject  to  taxa- 
tion till  the  year  following  the  issuance  of 
the  patents.  Iowa  Falls  &*  S.  C.  R.  Co.  v. 
Cherokee  County,  37  Iowa  483.  Iowa  Falls  &* 
S.  C.  R.  Co.  V.  Woodbury  County,  ii  Iowa  ^'^Z. 

The  lands  granted  to  the  Iowa  Falls  and 
Sioux  City  railroad  company  by  Iowa  Act 
of  April  7,  1868,  §  4,  to  aid  the  construction 
of  a  ruilroad,  did  not  become  the  property 
of  the  company,  nor  taxable  as  such,  until 
the  construccion  and  completion  of  the  road 
in  accordance  with  the  terms  prescribed  by 
said  act.  Iowa  Falls  &•  S.  C.  R.  Co.  v. 
Cherokee  County,  37  Io7va  483. 


In  such  case  parol  evidence  Is  admissible 
to  show  that  the  company  has  been  guilty 
of  fraudulent  practices  to  prevent  the  issu- 
ance of  the  patent.  But  the  fact  of  the 
completion  of  the  railroad  earlier  than  the 
issuance  of  the  patent  is  not  evidence  of 
such  practices  to  avoid  taxation.  Iowa 
Falls  &*  S.  C.  R.  Co.  v.  Woodbury  County,  38 
Iowa  498. 

Lands  granted  to  railroads  are  not  taxable 
until  the  year  after  they  are  patented,  when 
there  is  no  evidence  of  fraudulent  or  inten- 
tional delay  in  procuring  the  patent.  Mc- 
Gregor &*  M.  R.  Co.  V.  Brown,  39  Iowa  655. 

The  lands  granted  to  the  Cedar  Rapids  & 
Missouri  River  R.  Co.,  by  Act  of  Congress  of 
June  2,  1864,  did  not  become  subject  to  tax- 
ation until  they  were  selected  or  ascertained 
to  be  the  lands  embraced  in  the  grant.  The 
earliest  evidence  of  their  identification  is 
the  certificate  of  the  commissioner  of  the 
general  land  oflice,  approved  by  the  secre- 
tary of  the  interior.  And  when  the  com* 
pany  became  entitled  to  any  portion  of  the 
lands  granted  by  the  Act  of  Congress  of  May 
15,  1856,  by  the  completion  of  any  part  of  its 
road,  as  prescribed  by  federal  or  state  legis- 
lation, such  portion  of  the  grant  thereupon 
became  subject  to  assessment  and  taxation. 
It  was  the  intention  of  the  act  that  the  rail- 
roads should  be  constructed  westward  from 
the  initial  eastern  point,  and  that  the  120 
sections  granted  for  the  construction  of 
each  20  miles  of  road  should  be  selected 
from  the  unoccupied  lands  adjacent  to  the 
part  thus  constructed.  Cedar  Rapids  S*  M. 
R.  R.  Co.  V.  Carroll  County,  41  lo^va  153. — 
Following  Cedar  Rapids  &  M.  R,  R.  Co. 
V.  Woodbury  County,  29  Iowa  247. 

Acts  of  the  eleventh  general  assembly, 
ch.  134  and  144,  conferred  upon  the  Sioux 
City  and  St.  Paul  railway  company  the  title 
to  the  lands  embraced  in  the  acts  of  congress, 
conditional  upon  its  compliance  with  the 
conditions  of  the  grant,  which  was  to  be  de- 
termined by  subsequent  legislation.  Sioux 
City  6-  St.  P.  R.  Co.  v.  Osceola  County,  43 
Iowa  318,  14  Am.  Ry.  Rep.  450. 

Acts  of  the  fifteenth  general  assembly, 
ch.  34,  directing  the  governor  to  certify  to 
the  company  the  lands  held  by  the  state  in 
trust  for  its  benefit,  vested  in  it  a  perfect 
legal  title  thereto,  and  they  thereupon  be. 
came  taxable  to  it.  An  assessment  and 
levy  of  taxes  upon  the  lands  for  any  years 
previous  to  the  passage  ef  this  act  were  il- 
legal and  void.    Sioux  City  &*  St.  P,  R.  Ca. 


TAXATION,  118. 


881 


V.  Osceola  County,  43  Iowa  318,  14  Am.  Ry. 
Hep.  450. 

The  lands  selected  in  Sac  county,  in  pur- 
suance of  the  grant  to  the  state,  under  the 
Act  of  May  15,  1856,  and  by  tlie  state  con- 
ferred conditionally  upon  the  Cedar  Rapids 
and  Missouri  River  railroad  company,  had 
not  become  subject  to  taxation  on  the  first 
day  of  January,  1867.  Cedar  Rapids  &*  M. 
R.  R.  Co.  V.  Sac  County,  46  Iowa  243. 

Iowa  Laws  1874,  ch.  34,  authorizing  the 
certificatiun  to  plaintiff  company  of  certain 
lands  held  by  tlie  state  in  trust  for  it,  did 
not  pass  the  title  until  the  governor  had 
certified  them ;  and  until  then  they  were 
not  taxable  to  the  company.  Sioux  City  &* 
St.  P.  R.  Co.  V.  Osceola  County,  50  Iowa  177. 

Where  no  conflicting  claim  is  made  to 
lands  inuring  to  a  company  under  a  con- 
gressional grant  they  become  taxable  from 
the  time  they  are  earned  by  the  company, 
though  not  certified  by  the  land  department 
until  afterwards.  Iowa  R.  Land  Co.  v.  Fitch- 
Patrick,  52  Iowa  244,  3  N.  W.  Rep.  40. — 
Following  Iowa  Homestead  Co.  v.  Web- 
ster County,  21  Iowa  221. 

Lands  which  have  been  earned  by  a  com- 
pany under  a  congressional  grant,  but  to 
which  there  are  conflicting  claims,  and  the 
title  to  which  is  still  in  the  United  States, 
are  nut  taxable.  The  fact  that  a  month  has 
elapsed  between  the  cancellation  of  an  entry 
and  the  filing  of  another  entry,  during  which 
time  there  was  no  claim  adverse  to  that  of 
the  railroad  company,  will  not  render  the 
lands  taxable  from  that  time,  it  not  appear- 
ing that  the  company  neglected  to  procure 
title  during  such  time  for  the  purpose  of 
escaping  taxation.  Dickerson  v.  Yetser,  53 
Iowa  6Zi,6  N.  W.  Rep.  41,  21  Am.  Ry.  Rep. 
176.  —  Distinguishing  Iowa  Homestead 
C i.  V,  Webster  County,  ii  Iowa  221 ;  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Holdsworth,  47 
Iowa  20. 

Lands  which  have  been  earned  by  a  rail- 
road company  under  the  congressional  grant 
of  May  15,  1856,  but  have  been  withheld 
from  certification  under  such  grant  because 
of  adverse  claims  thereto,  and  without  fault 
upon  the  part  of  the  company,  are  not  taxa- 
ble during  the  time  they  are  so  withheld. 
Grant  v.  Iowa  R.  Land  Co.,  54  Iowa  673,  7 
N.  W.  Rep.  113.— Distinguishing  Iowa  R. 
Land  Co.  v.  Fitchpatrick,  52  Iowa  244. 

Where  lands  were  not  certified  to  a  com- 
pany by  the  United  States  until  several  years 
after  they  were  earned  under  the  grant,  the 
7  D.  R.  D.— 56 


title  being  withheld  because  of  conflicting 
claims  thereto— //«/</,  that  their  taxation  to 
the  company  during  the  interval  was  illegal. 
Doe  V.  Iowa  R.  Land  Co.,  S4  Iowa  657,  7  N. 
W.  Rep,  118. 

118.  Kansas.  — The  Kickapoo  treaty 
of  1862  provides  that  all  lands  sold  under 
the  provisions  of  article  5  of  said  treaty 
shall  be  forfeited  to  the  government  if  not 
fully  paid  for  in  accordance  with  the  pro- 
visions of  said  treaty,  and  also  provides 
that  "  none  of  said  lands  shall  be  subject 
to  taxation  until  the  patents  have  been 
issued  therefor."  After  said  land  has  been 
sold  to  the  Atchison  and  Pike's  Peak  rail- 
road company,  now  known  as  the  Central 
Branch  Union  Pacific  railroad  company, 
and  by  it  sold  to  an  individual  who  has 
made  valuable  and  lasting  improvements 
thereon,  but  before  said  lands  have  been 
paid  for  and  before  the  patents  have  been 
issued  therefor — held,  that  neither  said  lands 
nor  the  improvements  thereon  are  taxable. 
Parker  v.  Winsor,  5  Kan.  362. 

As  long  as  the  title  to  land  lying  within 
an  Indian  reserve  remains  in  the  United 
States,  or  in  the  Indians,  or  'v\  both,  the 
land  is  not  taxable  by  the  state.  A  mere 
contingent,  conditional,  and  inchoate  equity 
obtained  by  a  railway  company  in  such 
lands,  but  which  does  not  amount  io  a  title 
legal  or  equitable,  does  not  so  divest  the 
title  of  the  United  States  as  to  subject  the 
land  to  taxation.  Douglas  County  Com'rs  v. 
Union  Pac.  R.  Co.,  5  Kan.  615. 

Where  land  is  granted  to  a  company  for 
the  sole  purpose  of  aiding  in  the  construc- 
tion of  railroad  and  telegraph  lines,  and 
such  railroad  and  telegraph  lines  are  con- 
structed to  the  approval  of  the  government, 
the  company  acquires  such  an  interest  in 
the  land  as  renders  it  subject  to  taxation, 
even  though  it  has  not  received  a  patent, 
and  has  not  paid  the  cost  of  surveying,  se- 
lecting, and  conveying  the  same,  and  the 
fees  of  the  register  and  receiver  of  the  land 
office,  required  by  law  to  be  paid  before  the 
issue  of  the  patent.  Kansas  Pac.  R.  Co.  v. 
Culp,  9  Kan.  38. 

A  provision  in  a  grant  that  all  lands  so 
granted  which  shall  not  be  disposed  of  by 
the  company  within  three  years  after  the 
completion  of  the  road  "shall  be  subject  to 
settlement  and  pre-emption  like  other  lands, 
and  at  a  price  not  exceeding  one  dollar  and 
twenty-five  cents  per  acre  to  be  paid  to  said 
company,"  reserves  no  such  interest  to  the 


•I 


s 

3 


882 


TAXATION,  119-121. 


f  I    1 


i;IJ 


government  as  will  render  the  land  not  sub- 
ject to  taxation.  Kansas  Pac.  R.  Co.  v.  Culp, 
9  Kan.  38. 

On  July  25,  1866,  congress  passed  an  act 
entitled  "  An  act  granting  lands  to  the  state 
of  Kansas  to  aid  in  the  construction  of  the 
Kansas  and  Neuslio  Valley  railroad,  and  its 
extensions  to  Red  river."  By  the  terms  of 
this  act,  upon  the  certificate  of  the  governor 
of  Kansas  that  any  ten  consecutive  miles 
of  this  railroad  had  been  completed,  patents 
were  to  issue  directly  to  the  company  for 
the  lands  opposite  such  completed  section, 
and  so  for  each  successive  section.  No  ac- 
tion on  the  part  of  the  state  was  in  terms 
called  for.  The  company,  now  the  Mo. 
R.,  Ft.  S.  &  Gulf  R.  Co.,  as  required, 
formally  accepted  the  grant  with  its  terms 
and  conditions.  Prior  to  1870  it  had  com- 
plied with  all  the  terms  and  conditions  of 
the  grant  required  to  be  performed  by  it. 
The  state  took  no  action  in  reference  to  this 
matter  until  March,  1871,  wiicn  the  legisla- 
ture passed  a  joint  resolution  formally  ac- 
cepting the  grant.  No  patents  had  issued 
for  certain  of  the  lands  within  this  grant  in 
Bourbon  county  up  to  April  21,1871.  Held, 
that  they  were  nevertheless  subject  to  taxa- 
tion for  the  year  1 870.  Missouri  River,  Ft. 
S.  &■*  G.  R.  Co.  v.  Morris,  1 3  Kan.  302. 

By  contract  with  the  secretary  of  the  in- 
terior, an  individual  became  the  purchaser 
of  a  tract  in  southeastern  Kansas,  known  as 
the  Cherokee  neutral  lands.  By  the  terms 
of  that  contract,  lands  were  patented  as 
paid  for.  Having  paid  for  and  received 
patents  for  a  portion  of  these  lands,  in 
March,  1869,  he  assigned  his  contract  to 
plaintiff  in  error.  On  August  8,  1870,  plain- 
tiff paid  the  balance  of  the  purchase  money, 
and  on  November  2,  1870,  received  a  patent 
for  the  remainder  of  said  lands.  Hefd,  that 
the  lands  paid  for  August  8,  and  patented 
November  2,  1870,  were  not  subject  to  taxa- 
tion for  the  year  1870.  Missouri  River,  Ft. 
S.  6*  G.  R.  Co.  V.  Morris,  13  Kan.  302.  — 
Quoting  Kansas  Pac.  R.  Co.  v.  Prescott, 
16  Wall.  (U.  S.)  603. 

119.  Minnesota.*— By  Minn.  Special 
Laws  1865,  ch.  9,  the  swamp  lands  granted  by 
the  state  to  the  St.  Paul  and  Chicago  rail- 
way company,  to  aid  in  the  construction  of 
its  road,  are  subject  to  taxation  whenever 


'Taxation  of  Minnesota  railroad  land-grant 
lands  in  the  hands  of  grantees,  see  41  Am.  & 
Eno.  R.  Cas.  684,  abs  r. 


contracted  to  be  sold,  conveyed,  or  leased 
by  the  company.  St.  Paul  &>  C.  R.  Co.  v. 
McDonald,  34  Minn.  195, 25  A^.  IV.  Rep.  453. 

The  "  railroad  land-grant "  lands  reserved 
and  retained  by  the  state  and  subsequently 
sold  by  it  pursuant  to  Minn.  Special  Laws 
1877,  ch.  201,  §  9,  are  subject  to  taxation  in 
the  hands  of  the  grantees  of  the  state ;  and 
no  one  but  the  United  States  can  raise  the 
question  of  the  state's  authority  to  dispose 
of  such  lands  for  the  purposes  expressed  in 
the  act.  Morrison  County  v.  St.  Paul  Sr*  N. 
P.  R.  Co.,  42  Minn.  451,  44  A^.  W.  Rep.  982. . 

Lands  embraced  in  a  railroad  land  grant, 
and  exempt  from  ordinary  taxation  while 
held  by  the  corporation  for  whose  benefit 
the  grant  was  made — held,  to  have  become 
subject  to  taxation,  the  entire  beneficial  in- 
terest of  the  corporation  having  been  con- 
veyed by  a  trust  deed,  to  secure  a  specified 
charge  upon  the  lands  exceeding  their  value, 
and  the  cestuisque  trustent  being  empowered, 
at  their  mere  election,  to  take  and  appropri- 
ate the  entire  property  in  satisfaction  of 
their  claims  upon  it,  and  so  as  to  leave 
nothing  to  revert  to  the  grantor.  Chippewa 
County  V.  St.  Paul,  S.  &*  T.  F.  R.  Co..  41 
Am.  &*  Eng.  R.  Cas,  619,  42  Minn.  295,  44 
A'^  W.  Rep.  70.  —  Distinguishing  Sioux 
City  &  St.  P.  R.  Co.  V.  Robinson,  41  Minn. 
452,  43  N.  W.  Rep,  326. 

120.  Missouri.— Lands  granted  by  the 
state  to  a  railroad  company  under  Mo.  Act  of 
Sept.  20,  1852,  are  not  taxable  for  state  and 
county  purposes,  under  the  general  revenue 
law,  except  through  the  stockholders.  State 
V.  Hannibal  &*  St.  J.  R.  Co.,  37  Mo.  265.— 
Distinguished  in  St.  Joseph  v.  Hannibal 
&  St.  J.  R.  Co..  39  Mo.  476;  St.  Louis  Mut. 
L.  Ins.  Co.  V.  Board  of  Assessors,  $6  Mo. 
503.  Followed  in  Livingston  County  v. 
Hannibal  &  St.  J.  R.  Co.,  60  Mo.  516. 

121.  Nebraska.  —  Where  land  is 
granted  to  a  company,  and  has  been  fully 
earned  by  the  completion  of  its  road,  the 
company  is  the  equitable  owner  of  the  land, 
and  the  same  is  taxable  notwithstanding 
the  failure  of  the  company  to  pay  certain 
fees  for  the  entry  of  the  same.  Price  v. 
Lancaster  County,  20  Neb.  252,  29  N.  IV. 
Rep.  931. 

Upon  the  facts  stated  in  the  petition — 
held,  that  the  railway  company  had  earned 
the  lands  in  controversy  at  the  time  the 
taxes  were  levied,  and  that  th'  state  had 
prior  to  said  levy  parted  with  its  title  to  the 
plaintiff's  grantor,  and  that  the  lands  were 


TAXATION,  122  124. 


883 


taxable,  although  the  United  States  did  not 
approve  the  selection  of  the  state  until  after 
the  levy  of  the  taxes.  Elkhorn  L.  &»  T.  L. 
Co.  V.  Dixon  County,  35  Neb.  426,  53  N.  W. 
Rep.  382. 

Lands  for  which  a  patent  has  issued  to 
the  Union  Pacific  railway  company  are 
taxable  by  the  authorities  of  the  state  of 
Nebraska,  notwithstanding  the  proviso  of 
section  3  of  the  act  of  July  1,  1862  (12  St. 
at  L.  489),  wiiich  subjects  lands  not  sold  or 
disposed  of  by  the  company  within  three 
years  from  tlie  completion  of  the  road  to 
settlement  and  pre-emption  at  one  dollar  and 
twenty-five  cents  per  acre.  Union  Pac.  R. 
Co.  v.  McShane,  3  Dill.  (U.  S.)  303.— DIS- 
TINGUISHING Kansas  Pac.  R.  Co.  v,  Pres- 
cott.  16  Wall.  (U.  S.)  603. 

122.  Nevada.— The  Act  of  Congress  of 
July  10, 1886,  which  provides  thtt "  no  lands 
granted  to  any  railroad  corporation  by  any 
act  of  congress  shall  be  exempt  from  taxa- 
tion by  states,  territories,  and  municipal 
corporations  on  account  of  the  lien  of  the 
United  States  upon  the  same  for  the  costs 
of  surveying,  selecting,  and  conveying  the 
same  because  no  patent  has  been  issued 
therefor,"  delegates  to  states  and  territories 
the  right  to  tax  the  lands  granted,  although 
the  grantees  have  not  paid  the  costs  of  sur- 
veying and  selecting,  Statt  v.  Central  Pac. 
R.  Co.,  40  Am.  &*  Eng.  R.  Cas.  467,  20  Nev. 
372.  22  Pac.  Rep.  237.— Quoting  Northern 
Pac.  R.  Co.  V.  Traill  County,  115  U.  S.  600. 

The  Act  of  Congress  of  July  i,  1862,  oper- 
ates as  a  grant  in  prasenti  of  the  lands 
therein  specified  to  the  Central  Pacific  R. 
Co.,  and  the  right  of  the  state  to  collect 
taxes  thereon  under  the  act  of  1886  cannot 
be  defeated  by  the  delay  of  the  corporation 
in  applying  for  patents,  nor  by  the  neglect 
or  delay  of  the  secretary  of  the  interior  to 
determine  the  character  of  the  land  and 
whether  it  falls  within  the  grant,  the  identi- 
fication  of  the  land  and  its  character  being 
capable  of  proof  upon  the  trial  in  an  action 
for  the  taxes.  State  v.  Central  Pac.  R.  Co., 
40  Am.  &*  Eng.  R.  Cas.  467, 20  Nev.  372,  22 
Pac.  Rep.  237.— Reviewing  Hannibal  &  St. 
J.  R.  Co.  V.  Smith.  9  Wall.  (U.  S.)97. 

Congress,  having  full  control  over  the  pub- 
lic domain,  may  make  it  subject  to  state 
taxation  upon  such  conditions  as  are  deemed 
proper,  and  then,  if  so  taxed,  it  must  be 
done  subject  to  those  conditions.  State  v. 
Central  Pac.  R.  Co.,  54  Am.  &*  Eng.  R.  Cas. 
275,  21  Nev.  247,  30  Pac.  Rep.  686. 


The  act  of  July  10,  1886,  is  a  grant  to 
the  states  of  the  right  to  tax  lands  in  which 
the  United  States  still  has  such  an  interest 
as  renders  them  exempt,  and,  being  bene- 
ficial, its  acceptance  by  the  grantee  will  be 
presumed.  State  v.  Central  Pac.  R.  Co.,  54 
Am.  &»  Eng.  R.  Cas.  275,  21  Nev.  247,  30 
Pac.  Rep.  686. 

The  title  or  interest  of  the  United  States 
in  the  public  lands  will  not  be  affected 
where  only  the  possessory  claim  .^  i.he  land 
is  assessed.  Such  assessment  will  only 
reach  the  taxpayer's  interest  in  the  land. 
State  V.  Central  Pac.  R.  Co.,  54  Am.&'Eng. 
R.  Cas.  27s,  21  Nev.  247,  30  Pac.  Rep.  686. 

The  possessory  claim  to  public  land, 
which  may  be  taxed  as  something  separate 
and  distinct  from  the  title  in  fee,  is  an  ac- 
tual possession,  and  not  a  constructive  pos- 
session or  ?  mere  claim  to  the  land.  Mort- 
gaging and  leasing  public  land  do  not 
constitute  actual  possession  thereof.  State 
v.  Central  Pac.  R.  Co.,  54  Am.  &•  Eng.  R. 
Cas.  275,  21  Nev.  247,  30  Pac.  Rep.  686. 

Surveyed  lands  within  the  Pacific  railroad 
grants  are  subject  to  taxation  ;  unsurveyed 
landr.  are  not.  State  v.  Central  Pac.  R.  Co., 
21  Nev.  260,  30  Pac.  Rep.  689. 

123.  Oregon. — The  lands  of  a  company 
already  earned  under  a  grant  from  the  gen- 
eral government,  and  such  indemnity  lands 
as  it  has  already  selected,  are  subject  to 
taxation,  though  it  may  not  have  received  a 
patent  therefor;  but  such  indemnity  lands 
as  it  has  not  selected  are  not  taxable.  Ore- 
gon &•  C.  R.  Co.  V.  Lane  County,  23  Or^. 
386,  31  Pac.  Rep.  964. 

124.  Wiscoiisiu.— Where  the  general 
government  grants  lands  to  a  state  to  aid  rail- 
roads, and  a  company  has  complied  fully  with 
the  conditions  of  the  grant,  and  has  earned 
lands,  they  are  taxable ;  and  there  is  noth- 
ing in  the  position  of  the  state  as  trustee 
which  would  prevent  its  imposing  a  tax  on 
the  land.  West  Wis.  R.  Co.  v.  Trempealeau 
County  Sup'rs,  35  Wis.  237.— Quoted  IN 
Attorney-General  v.  Chicago  &  N.  W.  R. 
Co.,  35  Wis.  425.  Reviewed  in  Wisconsin 
C.  R.  Co.  v.  Taylor  County,  i  Am.  &  Eng. 
R.  Cas.  532,  52  Wis.  37. 

No  tax  can  be  imposed  upon  lands  while 
they  remain  the  property  of  the  United 
Slates,  nor  upon  those  granted  by  it  to  ■ 
state  in  trust  for  works  of  internal  improve- 
ment, and  as  to  which  the  trust  has  not 
been  executed ;  but  when  such  lands  have 
been  earned  by  a  railroad  company  under 


•I 


a 


884 


TAXATION,  125-127. 


!  •jtiii''  . 


such  a  grant,  and  the  state  and  the  United 
States  have  each  parted  with  all  right,  title, 
and  interest  therein  to  the  company,  by 
patents  regularly  issued,  they  become  re- 
lieved,/)r0  /an/o,  of  the  trust  implied  in  the 
grant,  and  subject  to  the  legislative  will  in 
the  imposition  of  taxes.  Wt'sconsin  C.  R. 
Co.  V.  Taylor  County,  i  Am.  &•  Eng.  R.  Cas. 
532,  52  Wis.  37,  8  N.  W.  Rep.  833.— Ex- 
PLAINING  Kansas  Pac.  R.  Co.  v.  Prescoit, 
16  Wall.  (U.  S.)  603.  Quoting  Union  Pac. 
R.  Co.  V.  McShane,  22  Wall.  444.  Re- 
viewing West  Wis.  R.  Co.  v.  Trempealeau 
County,  35  Wis.  258. 

Where  a  company  has  complied  fully  with 
the  conditions  of  a  grant  it  secures  an  equi- 
table right  to  the  lands  granted  within  the 
place  limits  of  the  grant,  and  they  at  once 
become  taxable,  although  patents  therefor 
have  been  withheld  owing  to  officials  of  the 
United  States  erroneously  construing  a  de- 
cision of  the  supreme  court  of  the  United 
States  against  the  company.  Wisconsin  C. 
R.  Co.  V.  Price  County,  64  Wis.  579, 26  N.  W. 
Rep.  93. — Quoted  in  Wisconsin  C.  R.  Co. 
V.  Wisconsin  River  Land  Co.,  71  Wis.  94. 

When  lands  granted  in  aid  of  a  railroad 
have  been  fully  earned,  and  the  company  is 
entitled  to  a  patent  therefor,  they  are  taxa- 
ble by  the  state  although  a  patent  has  not 
yet  issued.  Wisconsin  C.  R.  Co.  v.  Corn- 
stock,  71  Wis.  88,  36  N.  W.  Rep.  843. 

V.  8ITU8  OF  PBOPEBTT  FOS  TAXATION. 

125.  In  general."' — Under  a  provision 
of  California  Constitution  all  property  is 
assessable  for  taxation  in  the  county  where 
situate,  except  "  the  franchise,  roadway, 
roadbed,  rails,  and  rolling  stock  of  railroads 
operated  in  more  than  one  county,"  which 
are  to  be  assessed  by  a  state  board.  A  stat- 
ute required  the  state  board  to  assess 
steamers  crossing  waters  dividing  railroads. 
Held,  that  the  steamers  are  assessable  in  the 
counties,  and  therefore  the  statute  is  in 
violation  of  the  Constitution ;  that  an  assess- 
ment by  the  state  board  which  included  the 
steamers  is  void  as  a  whole.  California  v. 
Central  Pac.  R.  Co.,  33  Am,  &*  Eng.  R. 
Cas.\li,  127  U.  S.  l,iSup.  Ct.  Rep.  1073.— 
Following  Santa  Clara  County  v.  South- 
ern Pac.  R.  Co.,  118  U.  S.  394;  San  Fran- 
cisco V.  Central  Pac.  R.  Co.,  63  Cal.  469. 

*  State  cannot  tax  property  beyond  its  limits, 
•M  note,  13  Am.  &  Eno.  R.  Cas*.  31a, 


The  franchise  of  a  company  for  the  pur* 
poses  of  taxation  is  a  unit ;  so  is  the  road- 
way, and  so  the  rolling  stock ;  and  the  situs 
of  the  choses  in  action  and  personalty  may 
be  fixed  by  the  legislature,  and  treated  like 
the  franchise.  Franklin  County  v.  Nash- 
ville, C.  6-  St.  L.  R.  Co.,  17  Am.  &>  Eng.  R. 
Cas.  445,  12  Lea  (Tenn.)  521.— Approving 
State  Railroad  Tax  Cases,  92  U.  S.  575. 

120.  The  proper  cuiiuty,  gener- 
ally.*—The  property,  real  and  personal,  of 
the  North  Missouri  railroad  was  liable  to 
assessment  in  the  counties  through  which 
It  passed,  prior  to  the  act  of  March  10, 1871. 
State  V.  St.  Louis,  K.  C.  &*  N,  R.  Co.,  8  Mo. 
App.  582,  app'x. 

Brown    county  was   created    in   March, 

1883,  being  attached  to  Holt  county,  under 
the  general  statute,  for  election,  judicial, 
and  revenue  purposes.  In  June,  1883,  the 
county  commissioners  of  Holt  county  levied 
state,  county,  and  school  taxes  upon  the 
property  in  Brown  county.  In  July,  1883, 
an  election  was  held  for  county  offices,  and 
officers  elected  who  qualified  and  entered 
upon  the  duties  of  their  offices.    In  April, 

1884,  a  company  paid  to  the  treasurer  of 
Holt  county  the  taxes  levied  by  the  county 
commissioners  of  that  county  on  the  rail- 
road in  Brown  county.  Held,  that  the 
taxes  should  have  been  paid  to  the  treas- 
urer of  Brown  county.  Fremont,  E.  &*  At. 
V.  R.  Co.  V.  Brown  County,  24  Am.  &»  Eng. 
R.  Cas.  616,  18  Ne6,  516,  26  A';  W.  Rep.  194. 
—Adhered  to  in  Morse  v.  Hitchcock 
County,  19  Neb.  566. 

127.  Place  of  owner's  residence. 
—Following  the  rule  that  the  situs  ol  per- 
sonal property  follows  the  person  of  the 
owner,  rolling  stock  should  be  taxed  where 
the  corporation  has  its  lesidence;  but  this 
rule  of  law  may  be  modified  by  the  legisla- 
ture. It  is  competent  for  it  to  say  that 
rolling  stock  for  the  purposes  of  taxation 
shall  be  distributed  through  the  counties, 
cities,  or  towns  through  which  the  road 
passes,  in  proportion  to  its  length  in  such 
localities.  State  ex  rel.  v.  Severance,  55 
Mo.  378. 

Whether  a  railroad  corporation  is  to  be 
considered  as  resident,  for  purposes  of  tiix- 
ation  or  otherwise,  in  each  county  tlirough 
which  its  road  runs,  or  only  in  the  city 
where  its  principal  business  office  is  sitn- 

*  Distribution  o(  tax  on  railroads  in  counties, 
see  note,  13  Am.  &  Eng.  R.  Cas.  355. 


TAXATION,  128-131. 


885 


ated,  queert.    Ptopl*  ex  rtl.  v.   Pierce,  31 
Barb.  (N.  V.)  138. 

A  corporation,  like  a  natural  person,  may 
have  a  special  or  constructive  residence,  so 
as  to  be  cliarged  with  taxes  and  duties,  or 
to  be  subject  to  a  special  jurisdiction,  but 
the  legal  residence  of  a  corporation  is  not 
confined  to  the  locality  of  its  principal  office 
of  business ;  it  extends  to  the  territorial 
limits  of  the  jurisdiction  which  granted  its 
charter,  which,  for  judicial  purposes,  defines 
its  locality.  Glaize  v.  Sou/A  Carolina  R. 
Co.,  I  Strobh.  (So.  Car.)  70. 

A  city  council  may  tax  the  real  estate  in 
the  city,  and  the  rolling  stock,  of  a  com- 
pany, the  residence  or  domicil  of  the 
company  being  in  the  city.  Orange  &*  A. 
R.  Co.  V.  Alexandria  City  Council,  17  Graft. 
{Va.)  176.— Applied  in  Baltimore  &  O.  R. 
Co.  V.  Allen,  17  Am.  &  Eng.  R.  Cas.  461,  22 
Fed.  Rep.  376.  Reviewed  in  Montgomery 
City  Council  v.  Shoemaker,  51  Ala.  114. 

128.  Principal  place  of  business. 
— Personal  property  belonging  to  a  railroad 
corporation,  but  not  composing  any  part  of 
its  capital  stock,  is  liable  to  be  taxed  where 
the  corporation  has  its  place  of  business. 
Portland,  S.  &^  P.  R.  Co.  v.  Saco,  60  Me.  196. 

The  term  "for  business,"  used  in  Mich. 
Act  No.  24,  Laws  of  1867,  entitled  "An  act 
to  authorize  the  formation  of  corporations 
for  the  purpose  of  engaging  in  commerce 
or  navigation,"  and  which  provides  that  the 
articles  of  association  of  corporations  organ- 
ized thereunder  shall  state  "  the  city  or 
town  and  county  in  this  state  where  their 
general  office  for  business  is  located,"  is 
used  in  its  ordinary  significance  and  refers 
to  the  business  in  which  the  corporation  is 
engaged.  Detroit  Tramp.  Co.  v.  Board  of 
Assessors,  91  MicA.  382,  51  A^.  IV.  Rep.  978. 

The  statement  in  the  articles  of  associa- 
tion of  such  a  corporation  of  the  place 
where  its  office  for  business  is  located  is 
•  not  conclusive  against  the  state  for  pur- 
poses of  taxation.  Detroit  Transp.  Co.  v. 
Board  of  Assessors,  91  MicA.   382,  51   N. 

IV.  Rep  978.  —  Distinguishing  Western 
Transp.  Co.  v.  Scheu,  19  N.  Y.  408;  Starch 
Factory  7/.  DoUoway,  21  N.  Y.  449;  Pelton 

V.  Northern  Transp.  Co.,  37  Ohio  St.  450. 
Not  following  Union  Steamboat  Co.  v, 
Buffalo,  82  N.  Y.  351. 

The  personal  property  of  a  company 
should  be  taxed  in  the  township  or  ward 
where  the  prmcipal  business  of  such  com- 
pany is  transacted.     State  (Jersey  City  Sf 


B.  R.  Co.,  Pros.)  V.  HaigAt,  30  N.J.  L.  447. 
—Followed  in  State  (Warren  R.  Co., 
Pros.)  V.  Person,  33  N.  J.  L.  134. 

A  tax,  under  New  Jersey  Act  of  1862,  was 
rightly  assessed  on  the  Warren  railroad 
company  in  the  town  of  Belvidere,  where 
the  office  of  its  secretary  was.  State  ( War- 
ren  R.  Co.,  Pros.)  v.  Person,  32  N.J.  L.  134. 
—Following  State  (Morris  &  E.  R.  Co., 
Pros.)  V.  Miller,  30  N.  J.  L.  369;  State 
(Jersey  City  &  B.  R.  Co.,  Pros.)  v.  Haight,  30 
N.  J.  L.  447. 

It  appearing  that  the  prosecutor  had  an 
office  in  the  town  of  Belvidere,  and  tlieic 
being  no  evidence  that  it  had  any  other 
office  in  the  state,  the  one  in  Belvidere  must 
be  deemed  to  be  its  principal  office,  until 
another  more  important  one  is  shown,  and 
the  company  is  taxable  there.  State  ( War- 
ren R.  Co.,  Pros.)  v.  Person,  32  N.J.  L.  566. 

129.  Real  estate,  generally.— Real 
estate  of  corporations,  as  of  individuals,  is 
taxable  only  in  the  towns  where  it  is  situ- 
ated.   CocAeco  Mfg.  Co.  v.  Strafford,  51  N, 

H.  455- 

130.  Track,   roadbed,    etc.  —  The 

roadbed  of  a  railroad  is  real  property  for 
the  purposes  of  county  taxation,  within  the 
meaning  of  the  Delaware  tax  laws.  Neary 
V.  PAiladelpAia,  W.  **  B.  R.  Co.,  (Del.)  9 
Atl.  Rep.  405. 

Under  111.  Rev.  St.  ch.  86,  §  8,  county 
commissioners  can  only  levy  a  tax  on  prop- 
erty in  their  county.  A  railroad  track  is 
regarded  as  real  estate  and  must  be  taxed 
in  the  respective  counties ;  and  it  is  error 
to  levy  a  tax  on  an  undivided  part  of  a  rail- 
road lying  in  different  counties,  anu  on 
its  furniture.  Sangamon  &*  M.  R.  Co.  v. 
Morgan  County,  14  ///.  163.  —Criticised 
IN  Louisville  &  N.  R.  Co.  v.  State,  8  Heisk. 
(Tenn.)  663.  Reviewed  in  Northern  Ind. 
R.  Co.  V.  Connelly,  10  Ohio  St.  159.  Re- 
viewed AND  APPROVED  IN  Dinsmore  v. 
Racine  &  M.  R.  Co.,  12  Wis.  649. 

The  .ails,  sleepers,  bridges,  etc.,  of  a  rail- 
road corporation,  together  with  their  ease- 
ment in  the  lands,  within  the  located  limits 
of  the  road,  are  real  estate,  and  as  such  are 
liable  to  taxation  in  the  towns  where  they 
are  situated.  Providence  <S>»  W.  R.  Co.  v. 
IVrigAt,  2  R.  1. 459.— Reviewed  in  North- 
ern Ind.  R.  Co.  V.  Connelly,  10  Ohio  St.  159. 

131.  Ties,  poles,  and  posts.—  Rail- 
road ties,  telegraph  poles,  and  posts  kept 
for  sale  are  "  merchants'  goods,  wares,  and 
commodities,"  within  the  meaning  of  Wii. 


«: 

s 

Q 


B 
>; 


i 

a 

< 
e 
a 


886 


TAXATION,  132. 


H 


Rev.  St.  §1040,  as  amended  by  ch.  358,  Laws 
of  1883,  and  are  taxable  where  they  are  kept 
for  tale,  though  the  owner  resides  in  another 
county  of  the  state.  Torrty  v.  Shawano 
County,  79  Wis.  1 52,  48  A';  W.  Rep.  246. 

Such  ties,  poles,  and  posts,  purchased  in 
piles  upon  the  right  of  way  of  a  company 
in  one  county,  by  merchants  residing  and 
doing  business  in  another  county,  and  kept 
where  purchased  nr^r"  -•«<old  by  the  owners 
at  their  place  3f  bi  .*.  -^re  taxable  in  the 
county  where  the*  so     ,pt.     Torrey  v. 

Shawano  County,  /'9  >'^/>.  152,  48  N.  W, 
Rep.  246. 

132.  Boiling  stock.*  -  (t^  Federal 
decisions. — Where  rolling  took  .>  .cgarded 
as  personal  property  and  taxable  rn  tnc  i  .ate 
where  the  company  has  its  domicil,  rolling 
stock  used  by  it  on  a  leased  road  in  another 
state  is  not  taxable  there.  Baltimore  &* 
0.  R.  Co.  V.  Allen,  17  Am.  &*  Eng.  R.  Cas. 
461,  22  Fed.  Rep.  376. — Applying  Orange 

6  A.  R.  Co.  V.  Alexandria  City  Council,  17 
Gratt.  (Va.)  186;  Philadelphia.  W.  &  B.  R, 
Co.  V.  Appeal  Tax  Court.  50  Md.  415  ;  Ap- 
peal Tax  Court  v.  Northern  C.  R.  Co..  50 
Md.  417 ;  Hays  v.  Pacific  Mail  Steam-ship 
Co.,  17  How.  (U.  S.)  596 ;  St.  Louis  v,  Wig- 
gins Ferry  Co.,  11  Wall.  (U.  S.)  425 ;  Pacific 
R.  Co.  V.  Cass  County,  53  Mo.  31. 

Personal  property,  such  as  rolling  stock, 
continuously  used  in  a  state  acquires  a  situs 
in  that  state  for  purposes  of  taxation,  and 
may,  at  the  option  of  the  state,  be  sub- 
jected to  an  equal  property  tax,  and  that 
notwithstanding  it  be  used  exclusively  in 
interstate  commerce.  The  state  is  sover- 
eign, except  as  limited  by  the  federal  Con- 
stitution ;  and  a  sovereign  may  tax  all  the 
property  within  its  jurisdiction,  unless  there 
be  some  federal  law  taking  away  this  power. 
Pullman  Palace  Car  Co.  v.  Twombly,  29 
Fed.  Rep.  658.— Applying  Union  Pac.  R. 
Co.  V.  Peniston,  18  Wall.  (U.  S.)  5.  Criti- 
cising Wabash,  St.  L.  &  P.  R.  Co.  v.  Illi- 
nois, 118  U.  S.  557.  7  Sup.  Ct.  Rep.  4. 
Following  Erie  R.  Co.  v.  Pennsylvania, 
15  Wall.  282.    Quoting  Smith  v.  Turner, 

7  How.  (U.  S.)  283;  Morgan  v.  Parham,  16 
Wall.  471 ;  Gloucester  Ferry  Co.  v.  Penn- 
sylvania, 1 14  U.  S.  196,  5  Sup.  Ct.  Rep.  829. 

*  Where  rolling  stock  of  railroad  is  taxable, 
see  note,  i  L.  R.  A.  346. 

Rolling  stock  leased  or  conditionally  sold  by 
a  cat -trust  company  is  taxable  where  the  car 
trust  has  its  place  of  business,  see  34  Au.  ft 
Bno.  R.  Cas  626,  atstr. 


The  fact  that  a  company  owns  a  large 
number  oi  sleeping  cars  which  are  used 
throughout  the  country,  requiring  a  fre- 
quent change  of  cars  from  one  roud  to 
another,  and  identically  the  same  cars  not 
being  continuously  in  use  in  one  state,  does 
not  prevent  a  continuous  and  constant  use 
in  that  state,  so  that  the  cars  acquire  a 
situs  there  for  the  purpose  of  taxation. 
Pullman  Palace  Car  Co.  v.  Twombly,  29 
Fed.  Rep.  658. 

It  is  within  the  legislative  power  to  estab- 
lish a  situs  for  personal  property  elsewhere 
than  at  the  place  where  it  is  found ;  and 
when  cars  are  run  continuously  through 
two  states  they  may  have  a  situs  for  taxa> 
tion  in  each  state,  but  only  a  fair  proportion 
of  the  value  can  be  taxed  in  each.  Pull' 
man  Palace  Car  Co.  v.  Twombly,  39  Fed, 
Rep.  658. 

(2)  State  decisions. — For  purposes  of  taxa- 
tion, the  situs  of  rolling  stock  is  where  it  is 
habitually  used.  Atlantic  &»  P.  R.  Co.  v. 
Yavapai  County,  (Ariz.)  39  Am.  &*  Eng,  Jt. 
Cas.  543,  21  Pac.  Rep.  768. 

If  the  specified  property  be  constantly 
changing,  the  amount  may  be  fixed  by  the 
average  amount  &o  used.  Atlantic  &*  P.  R, 
Co.  V.  Lesueur,  {Ariz.)  37  Am.  &*  Eng.  R. 
Cas.  368,  19  Pac.  Rep.  157.  — Quoting 
Marye  v.  Baltimore  &  O.  R.  Co.,  127  U.  S. 
117,  8  Sup.  Ct.  Rep.  1037. 

A  law  which  requires  rolling  stock  to  be 
taxed  in  the  several  counties  in  the  propor- 
tion that  the  length  of  the  road  in  that 
county  bears  to  the  whole  length  of  the 
road  does  not  apply  where  a  company  runs 
its  trains  through  a  county  over  the  track 
of  another  company  under  a  mere  license, 
and  without  any  real  title  or  interest  in  the 
track.  Cook  County  v.  Chicago,  B.  &•  Q.  R. 
Co.,  35  ///.  460. 

The  situs  of  rolling  stock,  for  the  pur- 
poses of  taxation,  is  the  place  where  the 
property  of  the  manager  or  agent  would  be  ' 
taxed  in  contemplation  of  law.  it  being  in 
his  possession  and  subject  to  taxation  as  his 
own.  Dubuque  v.  Illinois  C.  R,  Co.,  39  Iowa 
56.— Distinguishing  Baldwin  v.  Missis- 
sippi &  M.  R.  Co.,  5  Iowa  518;  Richardson 
V.  Burlington  &  M.  R.  Co.,  8  Iowa  260. 

The  rolling  stock  of  a  company  existing 
under  the  laws  of  another  state,  but  oper- 
ating in  Iowa,  is  subject  to  taxation  there, 
and  it  is  the  duty  of  the  agent  or  manager 
of  such  company  to  list  such  rolling  stock 
for  municipal  taxation.    Dubuque  v.  IlUnoit 


TAXATION,  133- lar*. 


887 


C.  R.  Co.,  39  Iowa  56.  —  Disapproving 
Davenport  v.  Mississippi  &  M.  R.  Co.,  16 
Iowa  549.  Following  Dunlieth  &  D.  Bridge 
Co.  V.  Dubuque,  32  Iowa  427. 

Rolling  stocic,  whether  considered  as  per- 
sonal property  or  movable  fixtures,  \9  tax- 
able, according  to  the  laws  of  Maryland, 
only  at  the  "  home  office  "  of  the  company. 
Appeal  Tax  Court  v.  Westtrn  Md.  /?.  Co., 
50  Md.  274. 

Rolling  stock,  none  of  which  is  perma- 
nently located  in  the  city  in  which  is  the 
principal  office  and  place  of  business  of  the 
company,  is  not  subject  to  valuation  and 
assessment  in  such  city,  under  Md  Act  of 
1876.  ch.  260.  §  17. .  Philadelphia,  W-'.  <&-  /?. 
R.  Co.  V.  Appeal  Tax  Court,  50  Md.  397.  — 
Applied  in  Baltimore  &  O.  R.  Co.  v.  Allen, 
17  Am.  &  Eng.  R.  Cas.  461,  22  Fed.  Rep.  376. 

The  rolling  stock  of  a  company  must  be 
taxed  in  the  city  where  it  has  its  home 
office.  Appeal  Tax  Court  v.  Northern  C. 
J\\  Co..  50  Md.  417.  —  Following  Phila- 
delphia, W.  &  D.  R.  Co.  V.  Appeal  Tax 
Court,  50  Md.  397. 

A  manufacturer  lived  in  one  ward  of  a 
city,  and  had  a  warehouse  and  stock  in 
trade  in  another,  and  had  a  number  of  rail- 
way cars  which  he  used  in  the  transporta- 
tion of  his  wares.  The  cars  were  taxed  in 
both  wards.  Held,  that  they  were  properly 
taxable  with  the  stock  in  trade  as  nppur- 
tenant  to  the  business.  Comstock  v.  Grand 
Rapids,  17  Am.  &*  Eng.  R.  Cas.  457,  54 
Mich.  641,  20  N.   IV.  Rep.  623. 

Personal  property  of  a  railroad  which  is 
capable  of  having  an  nctu:il  si/us  is  taxable 
in  the  counties  where  situated  ;  and  other 
property,  such  as  rolling  stock,  which  has  no 
actual  situs,  is  taxable  in  the  county  where 
the  corporation  resides.  Pacific  R.  Co,  v. 
Cass  County,  53  Afo.  17,  12  Am.  Ry.  Rep.  336. 
— Applied  in  Baltimore&  O.R.  Co.w.  Allen, 
17  Am.&  Eng.  R.  Cas.  461,  22  Fed.  Rep.  376. 

A  court  may  apportion  the  valuation  of 
the  rolling  stock  of  a  company  for  taxation 
among  the  counties  through  which  the  road 
runs,  and  assign  to  one  county  a  share  pro- 
portionate to  the  length  of  the  road  therein. 
Richmond  &•  D.  R.  Co.  v.  Alamance  Com'rs, 
7  Am.  &•  Eng.  R.  Cas.  339.  84  N.  Car.  504. 

133.  Corporate  bonds.— Investments 
in  bonds  and  stocks  of  foreign  railroad  cor- 
porations by  residents  of  Ohio  may  lawfully 
be  taxed  in  Ohio ;  and  the  provisions  of  the 
act  of  April  5,  1859  (2  S.  &  C.  1438),  impos- 
Itig  a  tax  on  such  bonds  and  stocks,  are  not 


in  violation  of  the  federal  or  state  const  itn- 
tion.  IVorthington  v.  Stbattian,  25  Ohio 
St.  I.— Quoting  Cleveland,  P.  &  A.  R.  Co. 

V.  Pennsylvania,  15  Wall.  (U.  S.)  300. 

Bonds  of  a  corporation  are  taxable  prop- 
erty and  have  their  situs  for  purposes  of 
taxation,  in  the  absence  of  any  special  pro- 
vision afTecting  them,  at  the  placn  of  tlie 
bondholder's  residence,  not  at  the  ]>l.-ire 
where  the  corporation  is  situated.  This 
situs  cannot  be  altered,  by  statute  as  to  pre« 
existing  bonds,  without  violating  the  obliga- 
tion of  a  contract.  South  Nashville  St.  R. 
Co.  v.  Morrow,  39  Am.  &»  Etig.  R.  Cas.  5 1 8, 87 
Tenn.  406, 2  L.  R.  A.  853,  1 1  S.  W.  Rep.  348. 

Bondholders  resilient  in  the  state  iire  tax- 
able for  county  or  city  purposes  upon  bonds 
of  domestic  corporations  held  and  owned 
by  them  only  at  the  place  of  the  bond- 
holder's residence,  not  at  the  place  where  the 
corporation  is  located,  if  that  be  dilTerent. 
South  Nashville  St.  R.  Co.  v.  Morraiv,  39 
Am.  &-  Eng.  R.  Cas.  518.  87  Tenn.  ^o6,  2 
L.R.  A.  853.  n  S.  W.  Rif>.  348. 

134.  Mortgagrcs.  —  Mortgiiges  before 
foreclosure  are  mere  clioses  in  action  and 
are  taxable  at  the  place  of  the  domicil  of 
the  owner.  So  held,  as  to  a  railroad  mort- 
gage on  its  depot  grounds,  road,  and  rolling 
stock.  Davenport  v.  Mississippi  &*  M.  R. 
Co.,  12  /oTva  539. 

Under  Pa.  Revenue  Acts  of  1879  and 
18S1  mortgages  should  be  assessed  and 
taxed  in  the  respective  counties.  Railroad 
companies  are  not  obliged  to  retain  and  pay 
the  tax  on  the  morti^ages  made  by  them. 
Com.  V.  Lehigh  Valley  R.  Co.,  16  Phila, 
(Pa.)  584.— Revikwing  DeUiware,  L.  &  W. 
R.  Co.  V.  Com.,  66  Pa.  St.  69. 

1 35.  Shares  of  stock.  —  Under  Md. 
Act  of  1874,  cli.  483,  shares  of  stock  in  a 
street  railway  company  held  by  non-resi- 
dents are  taxable  where  the  company  has 
its  principal  office;  and  under  Md.  Act  of 
1878,  ch.  178,  it  is  the  duty  of  the  tax  com- 
missioner to  include  the  shares  of  such 
stock  in  his  return  as  taxable  where  the 
company  has  its  principal  office.  Mayor, 
etc.,  of  Baltimore  V.  Baltimore  City  Pass.  R, 
Co.,  7  Am.  <S-  Eng.  R.  Cas.  362.  57  Md.  31. 

For  purposes  of  taxation  the  situs  of 
shares  of  stock  may  be  fixed  by  statute  at 
the  place  where  the  corporation  is  located, 
even  as  against  non-resident  stockholders. 
South  Nashville  St.  R.  Co.  v.  Morrow.  39 
Am.  Sr-  Eng.  R.  Cas.  518,  87  Tenn.  406,  3 
L.  R.  A.  853,  1 1  5.  W.  Rep.  348, 


i 


M 

a 
e 


m 


TAXATION,  136,  137. 


'Sa 


'•Sif* 


liU;i£ 


Under  Vermont  statute  (R.  L.  §  383),  the 
stock  of  non-resident  stockholders  of  a  cor- 
poration located  in  that  state  may  be  legally 
set  in  the  list  of  the  town  in  which  the  cor- 
poration has  its  principal  place  of  business, 
and  the  corporation  compelled  by  man- 
damus to  pay  the  taxes  assessed  upo;i  such 
stock ;  and  a  statute  authorizing  such  tax- 
ation, and  allowing  the  corporation  to 
deduct  the  taxes  thus  paid  from  Mie  divi- 
dends due  to  such  stockholders,  vs  consti- 
tutional. St.  A/dans  v.  National  Car  Co.,  57 
Vt.  68.— Quoting  Canada  Southern  R.  Co. 
V.  Gebhard,  109  U.  S.  527. 

130.  School  taxes. —  It  was  not  in- 
tended by  Mo.  Act  of  1871.  §  13  (Sess.  Acts. 
1 87 1,  p.  58),  that  a  railroad  should  pay 
school  taxes  in  any  other  districts  than 
those  through  which  it  passes,  or  in  which 
it  holds  property.  And  the  average  rate  of 
taxation  spoken  of  in  that  section,  on  which 
to  base  the  railroad  tax,  is  to  be  made  up 
from  those  districts  and  none  other.  (Sess. 
Acts  1875,  p.  129.)  Livingston  County  v. 
Hannibal  6-  St.  J.  R.  Co.,  60  Mo.  516.— 
Followed  in  Caldwell  County  v.  Hanni- 
bal &  St.  J.  R.  Co..  60  Mo.  521.  Quoted 
IN  State  ex  rel.  v.  Hannibal  &  St.  J.  R.  Co., 
loi  Mo.  120.  Reconciled  in  State  ex  rel. 
V.  Hannibal  &  St.  J.  R.  Co.,  loi  Mo.  136. 

VI.  EZEMFTI0M8. 
I.  General  Principles.* 

137.  Legislative  power  to  grant 
exemptions.  —  The  legislature  was  not 
restrained  by  Ark.  Const,  of  1836  from  grant- 
ing immunity  from  taxation,  and  could  bind 
the  state  by  an  act  exempting  a  railroad 
corporation  from  taxes.  St.  Louis,  /.  M,  &* 
S.  R.  Co.  v.  Berry,  41  Ark.  509. 

The  legislature  of  the  territory  of  Minne- 
sota had  power  to  exempt  railroad  lands 
from  taxation  until  sold  and  conveyed  by 
the  company.  And  such  a  provision  in  a 
charter  constitutes  a  contract  which  can- 
not be  impaired  by  subsequent  legislation. 
Winona  &*  St.  P.  R.  Co.  v.  Deuel  County,  7 
Am.  &>  Eng.  R.  Cas.  348,  3  Dak.  i,  12  AT. 
W.  Rep.  561.— Approving  St.  Paul  &  P.  R. 
Co.  V.  Parcher,  14  Minn.  297;  State  v. 
Winona  &  St.  P.  R.  Co.,  21  Minn.  315. 
Quoting  Humphrey  v.  Pegues,  16  Wall. 
(U.  S.)  249.— Reviewed  in  Winona  &  St. 
P.  R.  Co.  V.  Watertown,  i  S.  Dak.  46. 

*  Exemption  of  railroads  from  taxation,  see 
notes,  34  Am.  &  Eno.  R.  Cas.  505  ;  i  Id.  569 


The  subsequent  division  of  the  territory 
of  Minnesota  does  not  forfeit  or  affect  con- 
tract rights  of  a  railroad  corporation  as  to 
taxation  of  lands  situated  in  that  part  of  the 
territory  incorporated  into  the  territory  of 
Dakota.  Winona  &»  St.  P.  R.  Co.  v.  Deuel 
County,  7  Am.  &*  Et^g.  R.  Cas.  348,  3  Dak. 
i,i2N.  W.Rep.  561. 

A  law  granting  to  a  railroad  immunity 
from  taxation  upon  payment  of  a  quarterly 
commutation,  the  state  reserving  the  right  to 
annul  the  agreement  at  any  time,  is  within 
the  scope  of  legislative  power.  Neary  v. 
Philadelphia,  W.  &*  B.  R.  Co.,  (Del.)  9  Atl. 
Rep.  405. 

A  revenue  law  which  exempted  the  prop- 
erty of  railroad  and  like  corporations  from 
taxation  would  be  invalid  under  Iowa  Con- 
stitution of  1857,  art.  8,  §  2.  Iowa  Home- 
stead Co.  v.  Webster  County,  21  Iowa  221. 

It  is  well  settled  that  a  legislature  has  the 
constitutional  right  to  grant  to  a  corporation 
an  exemption  from  taxation,  and  to  provide 
for  a  specific  tax  and  declare  that  no  other 
tax  shall  ever  be  imposed.  State  v.  Dexter 
6*  N.  R.  Co.,  69  Me.  44. 

The  power  of  the  state  to  exempt  from 
taxation  for  a  limited  period  lands  granted 
in  aid  of  the  construction  of  railroads  is 
not  an  open  question.  Chippewa  County 
Sup'rs  V.  Auditor  General,  65  Mich.  408, 
32  N.  W.  Rep.  6^1. — Reviewing  People  w. 
Auditor  General,  7  Mich,  84;  People  v. 
Auditor  General,  9  Mich.  134. 

The  provisions  of  Miss.  Const,  art.  12,  § 
20,  that  "taxation  shall  be  equal  and  uni- 
form throughout  the  state  "  and  that  "  all 
property  shall  be  taxed  in  proportion  to  its 
value,  to  be  ascertained  as  directed  by  law  " 
do  not  require  that  all  property  shall  be 
taxed,  and  do  not  deny  to  the  legislature 
the  right  to  exempt  property.  Mississippi 
Mills  V.  Cook,  56  Miss.  40. 

Mo.  Const,  of  1865,  art.  11,  §  16,  was  not 
designed  to  withdraw  existing  exemptions 
from  taxation.  It  was  intended  to  operate 
prospectively  only.  Scotland  County  v.  Mis- 
souri, I.  &*  N.  R.  Co.,  65  Mo.  123. 

The  legislature  of  a  state  has  power,  when 
not  restrained  by  »  constitutional  provision, 
to  exempt  the  property  of  a  railway  from 
taxation.  State  {Little,  Proi)  v.  Bowers, 
{N.  /.)  5  Atl.  Rep.  178. 

By  N.  Mex.  Railroad  Incorporation  Act 
of  Feb.  2, 1878,  §  3,  it  is  provided  that,  to  aid 
the  construction  of  railroads,  ail  the  prop> 
erty  of  every  kind  and  description  of  evcrjr 


TAXATION,  188. 


torponttion  formed  under  that  act  shall  be 
exempt  from  taxation  until  the  expiration 
of  six  years  from  the  completion  of  its  road. 
By  act  of  Feb.  la,  1878,  this  exemption  was 
extended  to  all  corporations  organized  under 
the  laws  of  the  territory  for  the  purpose  of 
constructing  railroads.  By  act  of  Feb.  15, 
1878,  the  words  "  six  years  from  the  com- 
pletion of  its  road"  are  defined,  and  the 
exemption  is  limited  to  a  period  of  twelve 
years  from  the  commencement  of  construc- 
tion. Held,  that  the  granting  of  this  exemp- 
tion from  taxation  to  corporations  not  organ- 
ized under  the  act  of  Feb.  2,  1878,  is  not 
in  contravention  of  the  Act  of  Congress  of 
March  3, 1867,  §  i,  forbidding  the  legislative 
assemblies  of  the  territories  from  granting 
private  charters  or  special  privileges.  Santa 
Ft  County  Com'rs  v.  New  Mexico  &*  S,  P. 
/?.  Co.,  3  JV.  Mex.  1 16,  2  Pac.  Rep.  376. 

The  offer  of  this  exemption  to  railroad 
companies  not  organized  under  the  act  of 
Feb.  2,  1878,  is  not  a  mere  jratuity  and 
without  consideration,  but  upon  its  accept- 
ance, by  complying  with  its  conditions  by 
constructing  and  operating  a  railroad,  it  be- 
comes a  binding  contract  from  which  the 
territory  cannot  recede.  Santa  Fe  County 
Com'rs  v.  New  Mexico  &*  S.  P.  R.  Co.,  3  N. 
Mex.  116,  2  Pac.  Rep.  376. — DISTINGUISH- 
ING West  Wis.  R.  Co.  v.  Trempealeau  Coun- 
ty Sup'rs,  93  U.  S.  59S. 

The  legislature  possesses  inherently  all 
legislative  power,  and  the  Constitution  is 
to  be  construed  as  limiting  or  restricting, 
but  not  as  granting,  the  power.  The  power 
to  grant  charters  of  incorporation  with  ex- 
emptions from  taxation  that  are  binding 
upon  the  state,  so  that  the  chariter,  after 
acceptance,  becomes  a  contract  and  irrepeal- 
able,  falls  properly  under  the  head  of  legis- 
lative power.  Knoxville  Sf  0.  R.  Co.  v.  Hicks, 
9  Baxi.  {Tenn.)  442. 

The  provision  in  Tenn.  Const,  requiring  all 
property  to  be  taxed  according  to  its  value, 
it  seems,  forbids  the  exemption  of  any  from 
taxation.  Louisville  &•  N.  R.  Co.  v.  State, 
8  Heisk.  {Tenn.)  663,  19  Am.  Ry.  Rep.  107. 

The  legislature  has  not  unlimited  power, 
under  Tenn.  Const.,  to  authorize  the  county 
courts  to  exempt  or  release  railway  property 
from  taxation  for  county  purposes.  Nash- 
ville 6-  K.  R.  Co.  V.  Wilson  County,  48  Am. 
&»  Eng.  R.  Cas.  648,  89  Tenn.  597,  i^  S.  W. 
Rep.  446. 

The  power  of  exemption  from  taxation, 
as  well  as  the  power  of  taxation,  is  one  of 


the  essential  elements  of  sovereignty.  Com. 
V.  Richmond  &*  P.  R.  Co.,  34  Am.  4-  Eng. 
R.  Cas.  483,81  Va.  355.— QUOTING  Rich- 
mond V.  Richmond  &  D.  R.  Co.,  31  Gratt. 
(Va.)  604. 

138.  Power  of  congrress  to  ex- 
empt railways  flrom  state  taxation. 
—As  to  the  right  of  the  states  to  tax  cor- 
porations created  by  the  general  govern- 
ment, or  instrumentalities  employed  directly 
by  the  government,  see  M'Culloch  v.  Mary^ 
land,  4  IVheat.  ([/.  S.)  316,  JVeston  v. 
Charleston  City  Council,  2  Pet.  (U.  S.)  467. 
Banks  V.  Mayor,  etc..  of  N.  Y.,  7  Wall.  ([/. 
S.)  24.  Banhv.  New  York  County  Sup'rs, 
7  Wall.  28.  Van  Allen  v.  Assessors,  3 
Wall  573.  Bradley  v.  People.  4  Wall.  459. 
People  V.  Commissioners,  4  Wall.  244.  Na' 
tional  Bank  v.  Com.,  9  Wall.  353.  Lion^ 
berger  v.  Rouse,  9  Wall.  468. 

Congress  may,  in  the  exercise  of  powers 
incidental  to  the  express  power  granted, 
make  or  authorize  contracts  with  individuals 
or  corporations  for  services  to  the  govern- 
ment ;  may  grant  aid  by  money  or  land  in 
preparation  for,  and  in  the  performance  of, 
such  services;  may  make  any  stipulation 
and  conditions  in  relation  to  such  aids  not 
contrary  to  the  Constitution,  and  may  ez« 
empt  the  agencies  employed  in  such  services 
from  state  taxation  which  will  prevent  or 
impnir  the  performance  of  them.  Thomson 
V.  Union  Pac.  R.  Co.,  9  Wall.  {U.  S.)  579. 

But  the  above  rule  does  not  apply  to  one 
of  the  Pacific  railroads  which  derives  its 
corporate  existence  from  state  law,  and  ex- 
ercises its  franchise  thereunder,  and  holds 
its  property  within  state  jurisdiction  and 
under  state  protection,  merely  because  the 
general  government  has  granted  aid  to  it,and 
reserved  the  right  to  use  the  road  for  certain 
governmental  purposes.  Thomson  v.  Union 
Pac.  R.  Co.,  9  Wall.  (U.  S.)  579.  — Dis- 
tinguished IN  California  v.  Central  Pac. 
R.  Co.,  33  Am.  &  Eng.  R.  Cas.  451,  127 
U.  S.  I ;  Central  Pac.  R.  Co.  v.  Board  of 
Equalization,  13  Am.  &  Eng.  R.  Cas.  256,60 
Cal.  35 ;  San  Benito  County  v.  Southern 
Pac.  R.  Co.,  37  Am.  A  Eng.  R.  Cas.  374, 
77  Cal.  518,  19  Pac.  Rep.  827.  Recon- 
ciled IN  People  V.  Central  Pac.  R.  Co., 
43  Cal.  398. 

A  railroad  corporation,  organized  under 
the  laws  of  a  state,  cannot  claim  an  exemp- 
tion of  its  property,  lying  within  the  limits 
of  a  state,  from  state  taxation  because  the 
corporation  thus  created  has  been  subse- 


9 


IS 


'!  ': 


fj 


i\ 


■V 


890 


TAXATION,  180, 140. 


:.9» 


quently  adopted  bjr  the  federal  govern  ment, 
and  is  employed  in  the  service  of  the  g^en- 
eral  government,  in  the  carriage  of  mails, 
munitions  of  war.  etc.  Pttjpit  v.  Ctntral 
Pac.  R.  Co.,  43  Cat.  398. 

130.  Power  of  county  court  to 
allow  exemption.  —  No  statute  has,  in 
terms  or  by  implication,  authorized  county 
courts  to  exempt  or  release,  upon  any  pre- 
text  or  consideration  whatever,  the  property 
of  a  company,  consisting  of  its  roadbed,  rolN 
ing  stock,  etc.,  from  its  just  proportion  of 
taxation  for  county  purposes.  NashvilU 
&•  K.  R.  Co.  V.  Wilson  County,  48  Am.  *« 
Eng.  R.  Cas.  648.  89  Tenn.  597,  155.  W. 
Rtp.  446. 

Such  release  is  none  the  less  ultra  virts 
and  void  because  it  was  offered  as  an  in- 
ducement for  the  location  and  building  of  a 
railroad,  which  was  accordingly  constructed 
by  non-residents,  resulting  in  great  benefits, 
in  a  general  way.  to  the  county.  NashvilU 
&*  K.  R.  Co.  V.  Wilson  County,  48  Am.  &* 
Eng.R.  Cat.  648,  89  Tetin.  597,  15  5.  W. 
Rep.  446. 

140.  Charter  exemption  an  in- 
violable contract**  — A  state  granted  a 
suppleR.entary  charter  in  which  a  specific 
rate  of  taxation  was  prescribed,  which  was 
to  be  in  lieu  and  satisfaction  of  all  other 
taxation.  It  was  specially  provided  that 
the  act  was  not  to  come  into  effect  or  be 
binding  upon  the  company  until  it  should 
execute  an  acceptance  under  seal  and 
file  the  same  in  the  office  of  the  secretary 
of  state.  Held,  that  the  whole  proceeding 
showed  an  intention  to  make  a  formal  con- 
tract, and  to  exclude  the  right  of  the  state 
to  revoke  it  thereafter.  New  Jersey  v.  Yard, 
95  U.  S.  104.— Distinguished  in  Little  v. 
Bowers.  17  Am.  &  Eng.  R.  Cas.  405,  46  N. 
J.  L.  300.— Not  followed  in  State  Board 
of  Assessors  v.  Paterson  &  R.  R.  Co..  33 
Am.  &  Eng.  R.  Cas.  468,  50  N.  J.  L.  446. 

The  perpetual  exemption  from  taxation, 
by  the  provisions  of  its  charter,  of  the 
capital  stock  of  a  railroad  corporation  cov- 
ers the  individual  interest  therein  of  the 
stockholders;  and  the  subsequent  law  im- 
posing a  tax  on  the  shares  owned  by  them 
impairs  the  obligation  of  the  contract  be- 
tween them  and  the  state,  and  is  unconsti- 
tutional and  void.  Tennessee  v.  Whitworth, 
17  Am.  &*  Eng.  R.  Cas.  411,  22  Fed.  Rep. 


*  Charter  contracts  exempting  from  taxation, 
tee  note,  17  Am.  ft  Eng.  R.  Cas.  398. 


75,  117  U.  S.  129,  6  Sup.  Ct.  Rep.  645.— 
Followed  in  Tennessee  v.  Whitworth.  17 
Am.  ft  Eng.  R.  Cas.  417.  22  Fed.  Rep.  81, 
117  U.  S.  139, 6  Sup.  Ct.  Rep.  649. 

An  exemption  from  taxation  in  a  charter 
amounts  to  a  contract,  and  is  protected  by 
that  clause  of  the  federal  Constitution 
which  forbids  state  laws  impairing  the  ob- 
ligation of  contracts.  Memphis  &*  L.  R. 
R.  Co.  V.  Berry,  41  Ark.  436.— Following 
Oliver  v,  Memphis  &  L.  R.  R.  Co.,  30  Ark. 
129.  Quoting  Thorpe  v.  Rutland  &  B.  R. 
Co.,  27  Vt.  143;  Minot  V.  Philadelphia,  W. 
&.  B.  R.  Co..  18  Wall.  (U.  S.)  225;  Ohio  Li 
I.  &  T.  Co.  V.  Debolt.  16  How.  (U.  S.) 
435;  Hoge  V.  Richmond  &  D.  Ri  Co.,  99 
U.  S.  355;  Northwestern  Fertilizing  Co.  v. 
Hyde  Park.  97  U.  S.  666.  Reviewing  At- 
lantic &  G.  R.  Co.  V.  Allen,  15  Fla.  637. 

The  charter  of  a  company  providing 
that  "said  railroad  and  its  appurtenances, 
and  all  property  therewith  connected,  shall 
not  be  taxed  higher  than  one  half  of  one 
per  cent,  upon  its  annual  net  income  "  is  a 
contract  between  the  state  and  the  com- 
pany, the  obligation  of  which  cannot  be 
impaired  by  subsequent  action  of  the  state. 
Upon  the  amendment  of  such  charter  au- 
thorizing the  company  to  construct  a  branch 
road,  the  right  of  exemption  granted  in  the 
original  charter  attaches  to  the  branch  road. 
Atlantic  &*  G.  k.  Co.  v.  Allen,  15  Fla.  637. 
—Following  Wilmington  &  R.  R.  Co.  v. 
Reid,  13  Wall.  (U.  S.)  264.  —  Reviewed 
IN  Memphis  &  L.  R.  R.  Co.  v.  Berry,  41 
Ark.  436. 

A  railroad  charter,  after  specifying  what 
taxes  the  company  should  be  required  to 
pay,  added  that  no  other  tax  should  ever  be 
levied  or  assessed  upon  the  corporation  or 
any  of  its  privileges  or  franchises.  Held, 
that  this  created  an  express  limitation  upon 
the  power  of  the  legislature  to  tax,  and  se- 
cured to  the  company  a  perpetual  exemp- 
tion from  any  taxation  other  than  that  pre- 
scribed. State  V.  Dexter  &*  N.  R.  Co.,  69 
Me.  44.— Explaining  State  v.  Maine  C.  R. 
Co.,  66  Me.  488. 

An  exemption  from  taxation  contained 
in  the  charter  of  an  corporation  organized 
under  it  is  irrepealable  and  inviolable. 
Mobile  *•  O.  R.  Co.  v.  Moseley,  52  Miss.  127. 

A  grant  of  lands  of  the  state  to  a  corpo- 
ration by  an  act  of  the  legislature,  for  an 
actual  consideration,  is  a  conveyance,  and 
the  grantee  takes,  not  as  the  recipient  of 
corporate  franchises,  but  as  owner  by  the 


1 


TAXATION,   141. 


891 


I  title  as  would  be  acquired  by  an  in- 
dividual grantee,  and  with  all  tlie  righta 
and  privileges  annexed.  An  exemption 
from  general  taxation  contained  in  auch 
legiilative  grant  is  a  right  which  gives  value 
to  the  estate,  and  is  part  of  the  thing 
granted,  and  cannot  be  modified  or  re- 
pealed without  the  consent  of  r  :  grantee. 
StaU  (Unittd  R.  S*  C.  Co.,  Pro*.)  v.  Com'rs 
R.  Taxation,  37  N./.  L.  340. 

The  charter  of  defendant  company  ex- 
empts  its  property  from  any  public  charge 
or  tax  whatever,  and  a  franchise  is  property. 
Worth  v.  Ptttrsburg  R.  Co.,  89  N.  Car. 
301.— Followed  in  Worth  v.  Seaboard  & 
R.  R.  Co.,  89  N.  Car.  310. 

A  charter  which  declares  that  "  the  prop- 
erty  of  a  railroad  company,  and  the  shares 
therein,  shall  be  exempt  from  any  public 
charge  or  tax  whatever"  exempts  said 
company  from  all  taxation,  whether  upon 
its  gross  receipts  or  its  capital  stock.  Such 
charter  is  a  contract,  and  is  protected  by 
the  Federal  Constitution.  Worth  v.  Wil- 
mit^toH  ^  W.  R.  Co.,  13  Am.  &*  Et^.  R. 
Cat.  386,  89  N.  Car.  291,  45  Am.  Rtfi.  679. 
—Quoting  Greenwood  v.  Union  Freight 
R.  Co.,  los  U.  S.  13. 

A  charter  exemption  from  taxation, 
granted  and  accepted  prior  to  the  adop- 
tion of  Tenn.  Const,  of  1870,  constitutes 
an  inviolable  contract  binding  upon  the 
state,  which  cannot  be  impaired  by  subse- 
quent legislation.  Memphis  v.  Union  6*  P. 
Banh,  91  Ttnn.  $46,  19  5.  W.  Rep.  758. 

It  is  settled  law  that  an  exemption  from 
taxation  granted  in  the  charter  of  a  com- 
pany constitutes  a  contract  which  is  pro- 
tected by  the  federal  Constitution  and  is 
irrepealable,  unless  the  power  of  repeal  has 
been  reserved  or  subsequently  acquired. 
Com.  V.  Richmond  6*  P.  R.  Co.,  24  Am.  &• 
Eng.  R.  Cas.  482,  81  Va.  355. 

141.  Amendme:?t  and  repeal,  gen- 
erally.— An  exemption  from  taxation  con- 
tained in  a  charter  cannot  be  repealed 
without  the  consent  of  the  corporation ;  but 
it  might  be  otherwise  if  the  exemption  were 
not  contained  in  the  charter.  St.  Louis,  I. 
M.  &»  S.  R.  Co.  V.  Lo/tin,  30  Art.  693. 

A  railroad  charter  provided  that  its  stock 
should  be  exempt  from  all  taxation,  except 
such  as  was  then  imposed  upon  bank  stock. 
Subsequently  the  company  accepted  an 
amendment  to  its  charter  providing  that  its 
stock  should  at  all  timen  be  subject  to  such 
Uses  as  the  legislature  might  levy.    Held, 


that  the  amendment  repealed  the  former 
provision  as  to  taxation,  and  the  property 
was  taxable  at  the  will  of  the  legislature. 
Macon  &*  A.  R.  Co.  v.  Goldsmith,  63  Ga.  463. 

An  act  changing  the  name  of  a  company, 
and  continuing  to  it  under  the  new  name 
all  its  rights,  privileges,  etc.,  under  its  for- 
mer name,  did  not  revive  provisions  of  the 
charter  granting  exemption  from  taxation 
which  had  been  repealed  by  prior  amend- 
ments. If  otherwise,  the  reviving  act,  being 
passed  after  tlie  adoption  of  the  Ga.  Code, 
would  not  interpose  a  constitutional  barrier 
so  as  to  prevent  the  legislature  from  taxing 
the  company  like  a  natural  person.  Macon 
&*  A.  R.  Co.  V.  Goldsmith,  62  Ga.  463. 

The  amendment  of  a  town  charter  au- 
thorizing it  to  levy  a  tax  upon  the  property 
of  railroad  companies  in  the  limits  of  the 
town  did  not  operate  as  a  constructive  re- 
peal of  the  charter  of  a  company  passed 
since  the  statute  of  1856,  by  which  the 
property  of  the  company  was  exempted  from 
taxation  until  the  road  was  completed. 
EliMabtthtown  &*  P.  R.  Co.  v.  Elizabeth- 
town,  12  Bush  (AjK.)  233.— Followed  in 
Henderson  Bridge  Co.  v.  Henderson,  90 
Ky.  498. 

The  charter  of  a  company  exempting  its 
stock  from  taxation  is  not  repealed  by  a 
constitutional  provision  adopted  after  ac- 
ceptance of  the  charter,  declaring  that  "  no 
property  shall  be  exempt  from  taxation 
except,"  etc.  Scotland  County  v.  Missouri, 
I.  6*  N.  R.  Co.,  65  J/i>.  123. 

A  provision  of  a  charter  that  stock  of  a 
company  shall  be  exempt  from  county  taxes 
is  not  affected  by  a  subsequent  statute 
granting  lands  to  the  corporation  and  ac- 
cepted by  it  which  provides  that  the  com- 
pany shall  each  year  "  pay  into  the  treasury 
of  the  state  a  sum  of  money  equal  to  the 
amount  of  state  tax  on  other  real  and  per- 
sonal property  of  a  like  value  for  that  year, 
upon  the  actual  value  of  the  roadbed  *  *  * 
and  other  property  of  said  company. "  State 
ex  ret.  v.  Hannibal &»  St.  J.  R.  Co.,  (Mo.)  39 
Am.  &*  Eng.  R.  Cas.  547, 11  S.  W.  Rep.  746. 

Railroads,  like  other  real  estate  and  chat- 
tels, are  not  exempted  from  taxation  by 
their  owner's  indebtedness,  or  by  the  man- 
ner in  which  that  indebtedness  is  secured. 
Boston,  C.  &*  M.  R.  Co.  v.  State,  62  N. 
H.  648. 

The  amended  Constitution  of  1875  abro- 
gates all  prior  special  or  local  laws  exempt- 
ing property  from   taxation,  unless  they 


1? 


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89S 


TAXATION,  142-144. 


conititute  irrepealable  contracts.    Sta/t  v. 

C/arJt,  $3  A'./-  •^'  33'«  >'  '^"-  ^''A  3°'- 

142.  Effect  of  reserved  power  to 
amend  or  repeal  in  charter  or  gen- 
eral law.*— A  company  was  incorporated 
in  South  Carolina  In  1851,  with  the  usual 
powers  of  railway  companies.  The  general 
statute  of  1841  was  then  in  force,  provid- 
ing that  all  charters,  or  amendments  or 
modifications  thereof,  should  be  subject  to 
"  amendment,  alteration,  or  repeal,"  unless 
expressly  provided  otherwise.  In  1855  tlie 
charter  was  amended  so  as  to  grant  a  total 
exemption  from  taxation,  but  there  was 
nothing  to  except  it  from  the  operation  of 
the  statute  of  1841.  In  1868  the  state  Con- 
stitution was  amended  so  as  to  provide  for 
taxing  corporations  generally.  Under  a 
statute  passed  in  pursuance  of  this  Constitu- 
tion, the  company's  property  was  taxed. 
HM,  that  the  tax  was  legal  and  constitu- 
tional. The  statute  of  1841  reserved  to  the 
state  the  power  to  alter  a  charter  as  origin- 
ally granted,  or  as  amended,  or  entirely  to 
revoke  it.  Tomlinson  w.  Jessup,  is  Wall. 
(U.  S.)  454,  3  Am.  Ry.  Rep.  aoi. 

The  object  of  the  above  reservation  was 
to  prevent  a  grant  of  corporate  rights  and 
privileges  in  a  form  which  would  preclude 
legislative  interference  with  their  exercise, 
if  the  public  interests  should  at  any  time 
require  such  interference,  and  to  preserve 
to  the  state  control  over  its  contract  with 
the  corporators,  which  would  otherwise  be 
irrepealableand  protected  from  any  measures 
affecting  its  obligation.  Tomlinson  w./es- 
sup,  1 5  Wall.  ( U.  S)  454,  3  Am.  Ry.  Rep.  201. 
Immunity  from  taxation  constituting  a 
part  of  the  contract  between  the  govern- 
ment and  corporators  or  stockholders  was, 
by  the  reservation  of  power  contained  in 
the  law  of  1841,  subject  to  be  revoked 
equally  with  any  other  provision  of  the 
charter,  whenever  the  legislature  might 
deem  it  expedient  for  the  public  interest 
that  the  revocation  should  be  made.  The 
revocation  affected  the  entire  relation  be- 
tween the  state  and  the  corporation,  and 
placed  under  legislative  control  all  rights, 
privileges,  and  immunities  derived  by  its 
charter  directly  from  the  state.  Tomlinson 
V.  Jessup,  15  Wall.  (U.S.)  454.  3  Am.  Ry. 
Rep.  201.  —  Followed  in  Greenwood  v. 

•  Charter  subject  to  reserve  power  of  amend- 
ment ;  taxation  may  be  imposed  notwithstand- 
ing exemption  clause,  see  note,  17  Ah.  &  Eng. 
R.  Cas.  410. 


Union  Freight  R.  Co..  loj  U.  S.  13.    K. .  . 
IFIED  IN  Hoge  V.  Richmond  &  D.  R.  Co., 
99  U.  S.  348.    Reviewed  in  Hewitts.  New 
York  &  O.  M.  R.  Co.,  la  Blatchf.  (U.  S.)  4S3- 

143.  Charter  amendable  where 
the  exemption  In  a  mere  gratuity.— 
An  act  of  the  legislature  exempting  prop- 
erty of  a  railroad  from  taxation  is  not  a 
"  contract  "  to  exempt  it,  unless  there  be  a 
consideration  for  the  act.  An  agreement 
where  there  is  no  consideration  is  a  nude 
pact — the  promise  of  a  grutuity  spontane- 
ously made,  which  maybe  kept, changed, or 
recalled  at  pleasure ;  and  this  rule  of  law 
applies  to  the  agreements  of  states  made 
without  consideration  as  well  as  to  those 
of  persons.  Tucker  v.  Ferguson,  22  W> 
{.U.S.)  in. 

Where  lands  were  granted  to  a  sts 
aid  in  building  a  railroad,  and  in  the  con- 
veyance by  the  state  to  the  road  it  was 
stipulated  that  the  lands  should  remain 
exempt  from  taxation  for  a  term  of  years, 
unless  sooner  sold,  and  it  appeared  that 
such  exemption  was  a  mere  gratuity,  it  was 
competent  for  the  state  to  amend  or  repeal 
the  law  before  the  expiration  of  the  time. 
West  Wis.  R.  Co.  v.  Trempealeau  County 
Sup'rs,  93  U.  S.  595.— Distinguished  in 
Santa  F£  County  Com'rs  v.  New  Mexico 
&  S.  P.  R.  Co.,  3  N.  Mex.  116.  Quoted 
IN  Lee  V.  Sturges,  46  Ohio  St.  153. 

Where  legislation  limiting  taxation  is  of 
such  a  character  that  there  is  no  positive 
declaration  of  a  permanent  and  irrevocable 
exemption  or  commutation,  and  nothing  is 
exacted  from  the  corporation  which  must 
operate  as  a  consideration  therefor,  it  is  a 
gratuity,  not  a  contract.  State  Board  of 
Assessors  v.  Paterson  &*  R.  R.  Co.,  33  Am. 
&*  Eng.  R.  Cas.  468,  50  A^.  /.  L.  446,  14  Atl. 
Rep.  610. 

144.  Construction  of  exemptions, 
generally.— A  provision  in  a  charter  ex- 
empting a  road  and  equipments  from  taxes 
until  the  income  should  amount  to  a  certain 
per  cent,  per  annum  on  the  cost  of  construc- 
tion and  equipments  implies  an  accounting 
by  the  company  to  the  state,  showing  the 
cost  of  construction  and  equipments  and 
the  annual  receipts  and  expenditures  of  the 
road,  as  a  mean:  of  ascertaining  when  the 
right  to  tax  it  accrues.  5/.  Louis,  I.  M.  &* 
S.  R.  Co.  V.  Berry,  41  Ark.  509.— Quoting 
Maine  C.  R.  Co.  v.  Maine,  96  U.  S.  499. 

The  exception  in  111.  Revenue  Act  of  1872, 
§  41.  does  not  authorize  the  exclusion  of 


TAXATION,  144. 


t)M 


town  and  city  loU  from  the  estimate  of  right 
of  way.  Its  only  purpose  is  to  release  tlie 
company  from  giving  the  description  by  tlie 
United  States  surveys  of  the  property  occu- 
pied as  right  of  way,  when  the  ri  J  t  of  way 
is  located  over  town  and  city  lots.  Chicago 
6*  N.  W.  K.  Co.  V.  Atilltr,  li.  III.  144. 

A  charter  exemption  of  the  property  of  a 
company  from  taxation  until  the  road  is 
completed  exempts  it  from  all  taxation 
imposed  by  authority  of  the  state  govern- 
ment, whether  for  general  or  local  purposes. 
Elinabethtown  &*  P.  Ji.  Co.  v,  Elisabet/ilown, 
12  Bush  (Ky)  233. 

A  charter  exempted  the  property  of  the 
company  from  taxation  for  ten  years  after  the 
completion  of  the  road.  The  road  was  never 
completed.  Held,  that  there  was  no  exemp- 
tion. Baton  Rouge,  G.  T,  &•  O.  X.  Co.  v. 
Kirkland,  33  La.  Ann.  622.— Followed  in 
Dennis  v.  Viclisburg,  S.  &  P.  R.  Co.,  34  La. 
Ann.  954. 

Under  a  charter  declaring  that  the  prop- 
erty of  the  company  shall  be  exempt  from 
taxation  for  ten  years  after  the  completion 
of  the  road,  the  corporation  cannot  claim 
immunity  from  the  beginning  of  its  exist- 
ence up  to  the  completion  of  the  road. 
Dtnnis  v.  Vicksburg,  S.  &*  P.  R.  Co.,  34 
La,  Ann.  954.— Following  Baton  Rouge, 
G.  T.  &  O.  R.  Co.  V.  Kirlcland,  33  La. 
Ann.  622. 

A  statute  provided  that  shares  of  railroad 
stock  should  be  exempt  from  taxation.  "  ex- 
cept that  portion  of  the  permanent  and  fixed 
worlcsof  the  company  within  the  state, '*'  '*'  * 
and  that  any  tax  which  shall  hereafter  be 
levied  upon  such  section  shall  not  exceed 
the  rate  of  any  general  tax  which  may  at 
the  same  time  be  imposed  upon  similar  real 
and  personal  estate  within  this  state,  for 
state  purposes."  Held,  that  no  tax  could  be 
imposed  which  should  exceed  the  rate  of 
general  taxation ;  but  that  the  permanent 
and  fixed  works  of  the  company  were  sub- 
ject to  taxation  for  both  state  and  county 
purposes.  Philadelphia,  IV.  &-  B.  R.  Co.  v. 
Bayless,  2  Gill  (Md.)  355.— Approved  in 
Memphis  &  C.  R.  Co.  v.  Gaines,  3  Tenn. 
Ch.  604.  Reviewed  in  State  v.  Phila-o 
delphia,  W.  &  B.  R.  Co.,  45  Md.  361. 

Minn.  Gen.  St.  1878.  ch.  11,  §§  128,  129, 
control  in  respect  to  the  taxability  of  the 
property  of  a  railway  corporation  which  has 
accepted  the  provisions  of  that  act.  Ramsey 
County  V.  Chicago,  M.  &»  St.  P.  R.  Co.,  33 
Minn.  S37.  H  ^-  ^-  R*P-  3'3' 


Where  an  exemption  from  taxation  is 
claimed  by  a  corporation,  of  property  which 
clearly  falls  within  the  descriptive  words  of 
the  act  which  imposes  the  tax,  the  exemp- 
tion must  be  a  plain  one.  But  when  it  it 
doubtful  whether  the  property  in  questicn 
falls  within  the  description  used  by  the  \^r, 
it  is  proper  to  resort  to  other  statutes  re  U- 
ing  to  the  subject  in  order  to  ascertain  the 
intention  of  the  legislature.  Hannibal  &* 
St.  J.  R.  Co.  V.  Shackletl,  30  Mo.  550. 

Mo.  Act  of  1868  to  aid  the  building  of 
branch  railroads  (Laws  1868,  p.  90)  did  not 
attempt  to  exempt  such  roads  from  tax- 
ation. (Const.  1865,  art.  II,  §  16.)  State  ex 
rel.  V,  Chicago,  B.  &*  K.  C.  R.  Co.,  89  Mo. 
523,  14  S.  W.  Rep.  522. 

New  Jersey  Act  of  April  a,  1873,  g  10  (P. 
L.  1873,  p.  112),  providing  that  whereas 
certain  railroad  corporations,  then  owning 
and  occupying  railroads  in  the  state,  claimed 
exemption  from  all  taxation  beyond  that 
which  was  provided  for  by  their  charters  or 
by  special  laws,  therefore  any  such  corpora- 
tion might  surrender  all  claims  to  exemp- 
tion from  taxation,  and  accept  the  provisions 
of  that  act  in  lieu  thereof,  does  not  apply  to 
a  railroad  having  a  repealable  charter.  State 
Board  of  Assessors  v.  Paterson  &*  R,  R. 
Co.,  33  Am.  &*  Eng.  R.  Cas.  468,  50  N.J.  L. 
446,  14  Atl.  Rep.  610.— Following  State 
(Morris  &  E.  R.  Co.,  Pros.)  v.  Com'rs  of  R. 
Taxation,  38  N.  J.  L.  472.  Not  following 
New  Jersey  v.  Yard,  95  U.  S.  104. 

N.  Car.  Revenue  Law  of  1875,  ch.  184, 
185,  does  not  authorize  the  collection  of  a 
tax  against  a  company  whose  charter  ex- 
empts its  property  from  taxation  and  where 
the  reserved  power  to  alter  such  charter  has 
not  been  exercised  by  the  legislature.  Peters- 
burg R.  Co.  V.  Northampton  County  Com'rs, 
81  A^.  Car.  487. 

N.  Dak.  Laws  of  1883,  ch.  99,  known  as 
the  "  Gross  Earnings  Law,"  did  not  exempt 
from  taxation  the  property  of  a  company  not 
embraced  in  any  land  grant  and  not  used 
for  railroad  purposes.  Fargo  &*  S.  W.  R. 
Co.  V.  Brewer,  3  N.  Dak.  34,  53  N.  W. 
Rep.  177. 

Where  a  corporation,  under  an  "omni- 
bus" charter,  had  the  right,  among  other 
things,  to  build  and  operate  railroads,  and 
also  to  build  and  employ  steamships  in  do- 
mestic and  foreign  trade,  and,  having  built 
a  short  railroad,  it  sold  the  same  to  another 
corporation,  and  thereafter  its  principal  busi- 
ness was  operating  a  line  of  steamships  to  a 


I'll 

"I 


894 


TAXATION,  145. 


m- 


II 


foreign  port,  said  company  was  held  not  to 
be  a  "  railroad  company  "  within  the  excep- 
tion in  an  act  which  imposed  a  bonus  upon 
capital  stoclc,  or  an  increase  thereof,  of  all 
corporations  except  "railroad  *  «  *  com- 
panies."  InUrHatimal  Nav.  Co,  v.  Com,, 
104  Pa.  St.  38. 

Railroad  companies  are  not  within  Tenn. 
Act  of  1873,  ch.  118,  S  8,  exempting  any 
bank,  banking  association,  or  any  other 
joint-stock  company  from  taxation,  and 
laying  the  tax  on  the  stockholders.  Lous's- 
vilU  &»  N.  R.  Co.  V.  State,  8  Heisk.  {Ttnn.) 
663,  19  Am.  Ry.  Rep.  107. 

Va.  Act  of  March  18,  1856,  §  25,  imposing 
taxes  for  the  support  of  the  state  govern- 
ment, does  not  exempt  railroad  companies, 
complying  with  said  section,  from  taxation 
by  a  city  government.  Orange  6*  A,  R. 
Co.  V.  AUxandria  City  Council,  17  Gratt. 
( Va.)  176. 

145.  Grant  of  exemptlou  must  be 
In  clear  aud  explicit  terms.*— (i)  Fed- 
eral decisions. — A  state  legislature  may  grant 
to  a  railroad  exemption  from  taxation ;  and 
such  a  grant  may  be  in  the  nature  of  a  con- 
tract,  and  inviolable.  But  such  grant  must 
be  expressed  in  clear  and  unmistakable  Ian- 
guage,  or  it  will  not  be  enforced.  It  cannot 
be  aided  by  presumption  or  inference.  Minot 
v.  Philadelphia,  W.&*B.  R.  Co.,ii  Wall. 
(U.  S.)  206,  7  Am.  Ry.  Rep.  312;  affirming 
7  Phila.  {Pa.)  555.  2  Add.  {[/.  S.)  323.— 
Quoted  in  Memphis  &  L.  R.  R.  Co.  v. 
Berry,  41  Ark.  436;  Wilmington  &  W.  R. 
Co.  V.  Alsbrook,  no  N.  Car.  137. 

A  contract  by  a  state  to  relinquish  its 
right  to  tax  property  can  only  be  made  by 
words  which  clearly  and  unequivocally  show 
such  intention.  North  Mo.  R.  Co.  v. 
Maguire,  20  Wall.  {U.  S.)  46,  6  Am.  Ry. 
Rep.  44S. 

Unless  exempted,  in  terms  which  amount 
to  a  contract  not  to  tax,  the  property, 
privileges,  and  franchises  of  a  corporation 
are  as  much  the  legiti'.nate  subjects  of  taxa- 
tion as  any  other  property  of  the  citizens 
which  is  within  the  sovereign  power  of  the 
state.  In  respect  to  such  corporations,  the 
taxing  power  of  the  state  is  never  presumed 
to  be  relinquished ;  it  exists  unless  the  in- 
tention to  relinquish  it  is  declared  in  clear 
and  unambiguous  terms.  North  Mo.  R.  Co, 
V.  Mqguire  20  Wall.  (U.  S.)  46,  6  Am.  Ry. 

*  Exemption  from  taxation  to  be  strictly  con- 
sented, ses  note,  i  L.  R.  A.  144. 


Rep.  44$.     Bailey  v.  Mqgwire,  22  Watt,  {U. 
S.)2il.  II  Am.  Ry.  Rep.  470. 

No  presumption  can  be  made  in  favor  of 
an  exemption  from  taxation ;  and  if  there 
it  a  reasonable  doubt  it  must  be  solved  in 
favor  of  the  state.  The  mere  fact  that  an 
amendment  to  a  railroad  charter  makes 
special  provision  for  taxes  to  the  state,  but 
says  nothing  about  other  taxes,  is  not  in 
itself  enough  to  relieve  the  corporation 
from  the  payment  of  all  taxes  except  to  the 
state.  Mere  silence  as  to  other  taxes  can- 
not be  construed  as  a  waiver  of  the  right  to 
impose  them.  Bailey  v.  Magwire,  22  Watt, 
(U.  S.)  215,  II  Am.  Ry.  Rep.  470. 

And  a  provision  that  the  taxes  due  the 
state  shall  be  assessed  in  a  particular 
manner,  as  upon  a  report  or  statement 
under  oath  made  by  the  president  of  the 
company  to  the  state  auditor,  does  not 
amount  to  a  contract  that  the  state  will 
never  pass  a  law  to  assess  and  tax  the  prop- 
erty in  a  different  way.  Bailey  v.  Magwire, 
22  Wall  (U.S.)  215.  II  Am.  Ry.  Rep.  470. 
(2)  State  decisions. — Exemption  from  tax- 
ation is  the  exception  to  the  rule  of  tax- 
ation, and  can  be  sustained  only  from  the 
strictest  construction.  Atlantic  &•  P.  R. 
Co.  V.  Lesueur,  (Ariz.)  37  Am.  &•  Eng.  R. 
Cas.  368,  i^Pac.  Rep.  157. 

Whenever,  on  any  fair  construction  of  the 
legislation  ut  der  which  an  exemption  from 
taxation  is  claimed,  there  is  a  reasonable 
doubt  whether  the  claim  is  made  out,  that 
doubt  must  be  solved  in  favor  of  the  sov- 
ereign. In  other  words,  the  language  used 
must  be  of  such  a  character  as  when  fairly 
interpreted  leaves  no  room  for  controversy. 
Alexandria  C,  R.  4-  B.  Co.  v.  District  of 
Columbia,  7  Am.  6-  Eng.  R.  Cas.  325,  t 
Mackey  (D.  C.)  217. 

Exemption  from  taxation  must  be  granted 
in  terms  too  plain  to  be  mistaken.  Such 
exemption  is  a  personal  privilege,  and  can- 
not be  assigned  except  by  legislative  au- 
thority. State  ex  rel.  v.  Keokuk  &•  W.  R. 
Co.,  41  Am.  &*  Etig.  R.  Cas.  694,  99  Mo.  30, 6 
L.  R.  A.  222,  liS.  W.  Rep.  290.— Approv- 
mq  Chicago,  B.  &  K.  C.  R.  Co.  v.  Guffey. 
•  120  U.  S.  568;  St.  Louis  V.  Boatmen's  I.  ft 
T.  Co.,  47  Mo.  150.  Reviewing  Scotland 
County  V.  Missouri,  I.  &  N.  R.  Co.  65 
Mo.  123. 

The  grant  of  a  perpetual  exemption  from 
taxation  has  indeed  been  held  invalid  by 
courts  of  the  highest  respectability.  WH- 
fftiifrtom  6*  W.  R,  Co.  V.  Alttrook,  no  N, 


. 


TAXATION,  14e. 


895 


i 


Car,  137,  14  S.  E.  R«p.  6)2.— Quoting 
Washington  University  v.  Rouse,  8  Wall. 
U.  S.)  441 ;  Minot  v.  Philadelpliia,  W.  &  B. 
R.  Co.,  18  Wall.  206.— See  also  Wilmii^tOH 
&*  IV.  R.  Co.  V.  Alsbrook,  no  N.  Car.  437, 
14  S.  E.  Rep.  xooT. 

The  Dovrer  of  taxation  is  an  essential  at« 
tribute  of  sovereignty,  reaching  to  all  prop* 
erty  and  persons  belonging  to  a  body 
politic.  If  the  legislature  grant  an  exemp- 
tion from  taxation  to  some  corporations, 
nothing  should  be  left  to  implication,  but 
the  extent  of  the  intended  relief  must 
appear,  and  be  clearly  expressed  in  the  legis- 
lative act.  Statt  (Ntw  J$rtty  R.  6-  T.  Co., 
Pros.)  V.  Collectors,  26N.J.L,  S19:  affirm- 
6^  2S /\r. /.  L.  us. 

Exemptions  from  taxation  are  regarded 
as  in  derogation  of  sovereign  authority  and 
of  common  right,  and  therefore  not  to  be 
extended  beyond  the  exact  and  express  re- 
quirements of  the  language  used,  construed 
strictissimi  Juris.  IViimington  &*  W.  R. 
Co.  V.  Alsbrook,  no  N.  Car.  137,  14  S.  E. 
Rtp.  6s2-— Quoting  Providence  Bank  v. 
Billings.  4  Pet.  (U.  S.)  514  i  Vicksburg,  S.  & 
P.  R.  Co.  V.  Dennis.  116  U.  S.  668;  Minot 
V.  Philadelphia.  W.  &  B.  R.  Co..  t8  Wall. 
(U.  S.)  206.— See  also  Wilmington  &*  tV. 
R.  Co.  V.  Alsbrook,  no  N.  Car.  437.  14  S. 
E.  Rep.  1007. 

A  surrender  of  a  taxing  power  by  'the 
legislature  is  not  to  be  presumed,  unless  the 
intention  is  evinced  by  clear  and  explicit 
terms.  Where,  however,  the  legislature 
has  exercised  the  power  by  taxing  all  the 
property  of  a  corporation  in  a  specified 
manner,  and  has  intimated  no  design  to  sub- 
ject it  to  further  burdens,  its  property  will 
be  exempt  from  taxes  imposed  by  general 
laws.  J\rew  York  6*  E.  R.  Co.  v.  Sabin, 
36  Pa.  St.  342.— Distinguished  in  Erie  R. 
Co.  V.  Pennsylvania,  21  Wall.  (U.  S.)  492. 
Followed  in  New  Orleans  v.  Orleans  R. 
Co.,  42  La.  Ann.  4. 

Exemptions  from  taxation  are  contrary 
to  public  policy,  and  can  only  be  allowed 
when  granted  in  clear  and  unmistakable 
terms.  The  benefit  of  doubts  must  be  given 
the  sUte.  Nashville,  C.  ^  St.  L.  R.  Co.  v. 
Hodges,  7  Lea  ( Tenn. )  663.  Wilson  v.  Gaines, 
gSaxt.  (Tenn.)  546,  16  Am.  Ry.  Rep.  316. 
Memphis  v.  Union  6*  P.  Sank,  91  Tenn. 
546, 19  5.  W.  Rep.  7s8. 

The  power  of  exemption,  as  well  as  the 
power  of  taxation,  is  an  essential  element  of 
•OTcreignty,  and  can  only  be  surrendered 


or  diminished  in  plain  and  explicit  terms. 
Richmond  v.  Richmond  &*  D.  R,  Co.,  21 
Gratt.  ( Va.)  604.  Baltimore  &•  O.  R.  Co.  T. 
Marshall  County  Sup'rs,  3  W.  Va.  319. 

146.  Exemption  never  presumed 
or  iiuplied.-(i)  Federal  decisions.— AW 
exemptions  from  taxation  are  to  be  con- 
strued strictly.  Exemptions  are  never 
granted  by  implication.  Providence  Bank 
V.  Billings,  ^ Pet.  {U.  S.)  514.— Quoted  in 
Wilmington  &  W.  R.  Co.  v.  Alsbrook,  no 
N.  Car.  137;  Richmond,  F.  &  P.  R.  Co.  v. 
Richmond.  26  Gratt.  (Va.)  83. 

There  is  no  reason  why  the  property  of  a 
corporation  should  be  presumed  to  be  ex- 
empted from  its  share  of  necessary  public 
burdens,  there  being  no  express  exemption. 
Philadelphia  &*  W.  R.  Co.  v.  Maryland,  10 
How.  {U.  S.)  376. 

The  taxing  power  of  a  state  should  never 
be  presumed  to  be  relinquished,  unless  the 
intention  is  declared  in  clear  and  unambigu- 
ous terms.  Philadelphia  &*  W.  R.  Co.  v. 
Maryland,  10  How.  {U.  S.)  376. 

A  claim  of  exemption  from  county  and 
municipal  taxation  cannot  be  supported, 
any  more  than  a  claim  from  state  taxation, 
except  upon  language  so  strong  as  that, 
fairly  interpreted,  no  room  is  left  for  con- 
troversy. No  presumption  can  be  made  in 
favor  of  the  exemption;  and  if  there  be 
reasonable  doubt,  the  doubt  is  to  be  solved 
in  favor  of  the  state.  Bailey  v.  Magwire, 
22  Wall.  {U.  S.)  215.  n  Am.  Ry.  Rep.  470. 
—Quoted  in  Baltimore  &  O.  R.  Co.  v. 
District  of  Columbia.  3  MacArth.  (D.  C.) 
122.— Huge  V.  Richmond  &*  D.  R.  Co.,  99 
U.  S.  348. 

A  corporation  cannot  claim  an  exemption 
from  taxation  unless  it  be  clearly  so  stated 
in  its  charter.  Exemptions  are  never 
granted  by  implication.  Memphis  Gas 
L^ht  Co.  v.  Shelby  County  Tax.  Dist.,  109 
U.  S.  398,  3  Sup.  Ct.  Rep.  205.— Followed 
in  New  Orleans  City  &  L.  R.  Co.  v.  New 
Orleans,  143  U.  S.  192,  12  Sup.  Ct.  Rep.  406. 

The  omission  of  taxing  officers  to  assess 
certain  railroad  property  cannot  control  the 
duty  imposed  by  law  upon  their  successors, 
or  the  power  of  the  legislature  to  tax  the 
property,  or  the  legal  construction  of  a  stat- 
ute under  which  its  exemption  from  taxa- 
tion it  claimed.  Vicksburg,  S.  &»  P.  R.  Co. 
r.  Dennis,  24  Am.  ^  Eng.  R.  Cas.  $00.  116 
U.  S.  665, 6  Sup.  C*.  Rep.  62$. 

An  exemption  from  taxation  cannot  be 
implied  from  the  apparent  spirit  or  general 


IS 

5 


.4 

,s 


896 


TAXATION,  147,  148. 


;J!'»»r 


I 


purpose  of  a  stttute.  It  must  be  certain 
and  explicit;  every  well-founded  doubt 
must  be  resolved  in  favor  of  the  state.  But 
this  rule  does  not  call  for  a  strained  con- 
struction adverse  to  the  real  intention  of 
the  legislature.  Louisville  &•  N.  R.  Co.  v. 
Gaints,  2  FUpp.  (U.S.)  621.  3  Ftd.  Rep.  266. 

(2)  State  decisions . — An  intention  to  sur- 
render the  power  of  taxation  will  not  be 
imputed  to  the  state  unless  the  language 
leaves  no  alternative.  Kentucky  C.  R.  Co.  v. 
Bourbon  County,  82  Ky.  497. 

Minn.  Special  Laws  of  1870,  ch.  65,  %  i, 
do  not  exempt  the  interest  of  defendant 
company  in  a  certain  railroad  from  taxation, 
so  as  to  relieve  it  from  liability  to  pay  the 
three-per-cent.  tax  on  its  gross  earnings 
received  by  its  operating  the  road.  To  ex- 
empt a  company  the  language  of  the  statute 
must  clearly  confer  an  exemption.  State  v. 
Northern  Pac.  R.  Co.,  17  Am.  &*  Eng.  R. 
Cas.  475,  32  Minn.  294,  20  A^.  W.  Rep.  234. 

Where  an  act  does  not  pretend  to  grant 
an  exemption  from  taxation  in  express 
terms,  the  courts  will  not  presume  that  the 
state  intended  to  abandon  or  surrender  the 
right  of  taxation.  The  abandonment  of 
such  right  can  never  be  presumed  ;  it  must 
appear  in  clear  and  unequivocal  terms. 
North  Mo.  R.  Co.  v.  Maguire,  49  Mo.  490. 

The  presumption  is  against  a  state  bind- 
ing itself  by  an  irrevocable  charter  not  to 
tar  a  railroad.  State  Board  of  Assessors  v. 
Puterson  &>  R.  R.  Co..  33  Atn.  A*  Eng.  R. 
Cas.  468,  so  N./.  L.  446,  14  Atl.  Rep.  610. 

147.  Exemption  from  taxes,  when 
exemptlou  flrom  local  osscssiuents. 
— An  exemption  from  taxation  is  to  be 
taken  as  an  exemption  from  the  burden  of 
ordinary  taxes,  and  does  not  relieve  from 
the  obligation  to  pay  special  assessments, 
imposed  to  pay  the  cost  of  local  improve- 
ments, and  charged  upon  contiguous  prop- 
erty upon  the  theory  that  it  is  benefited 
thereby.  Illinois  C.  R.  Co.  v.  Decatur,  54 
Am.  <S-  Et^.  R.  Cas.  282,  147  U.  S.  190,  13 
Sup.  Ct.  Rep.  293  ;  affirming  37  Am.  6-  Etig. 
R.  Cas.  39S.  126  ///.  92.  18  N.  E.  Rep.  315. 

Under  the  charter  of  a  company  which 
exempts  its  property  (other  than  its  land 
grant)  from  all  assessments  and  taxes 
whatever,  by  the  territory  or  future  state, 
or  by  any  county,  city,  town,  village,  or 
other  municipal  authority  in  the  territory  or 
sute.  the  property  held  by  it  for  the  pur- 
poses of  its  railroad  is  not  subject  to  assess- 
nenu  for  local  Improvements.    First  Div. 


St.  P.  &»  P.  JR.  Co.  V.  St.  Paul,  21  JI/iVm. 
526,  18  Am.  Ry,  Rep.  435.— REVIEWED  IN 
St.  Paul  V.  St.  Paul  &  S.  C.  R.  Co.,  23 
Minn.  469. 

The  charter  of  the  prosecutor  provides 
for  the  payment  by  the  company  of  a  state 
tax,  and  contains  a  proviso  that  "  no  other 
tax  or  impost  shall  be  levied  or  assessed 
upon  said  company."  Held:  (1)  that  the 
word  "  assessed  "  in  the  proviso  cannot  have 
the  force  and  meaning  of  describing  special 
levies  for  public  improvements,  but  is  used 
merely  to  describe  the  act  of  levying  the 
tax  or  impost ;  (2)  that  the  company  is  not, 
by  the  proviso,  exempt  from  assessments 
for  local  improvements.  State  {New  Jersey 
Midland  R.  Co.,  Pros.)  v.  Mayor,  etc.,  of 
Jersey  City,  I  Am.  &•  Eng.  R.  Cas.  406,  43 
N.J.  L.  97. 

Where  provision  is  made  in  a  grant  to  a 
company  by  the  former  territory  of  Minne* 
sota,  while  the  territory  of  Dakota  was  a 
part  thereof,  exempting  its  profwrty  from 
"  all  taxation,"  the  real  estate  of  the  com- 
pany is  not  thereby  exempted  from  an  as- 
sessment for  local  municipal  improvements. 
Such  an  assessment  is  not  taxation,  within 
the  meaning  of  the  grant.  Winona  &*  St. 
P.  R.  Co.  v.  Watertown,  i  S.  Dak.  46.  44 
N.  W.  Rep.  1072. —Quoting  People  v. 
Mayor,  etc.,  of  Brooklyn,  6  Barb.  (N.  Y.)  314. 
Reviewing  Winona  &  St.  P.  R.  Co.  v. 
Deuel  County,  3  Dak.  1,  12  N.  W.  Rep.  561. 

148.  Grant  of  "rights,  powers, 
and  privileges  "  of  previously  char- 
tered company.— (i)  Federal  decisions. 
— A  company  was  chartered,  "  for  the  pur- 
pose of  making  and  using  its  road,"  with  all 
the  powers,  rights,  and  privileges  of  another 
company,  which,  by  its  charter,  enjoyed  im- 
munity from  taxation.  Held,  not  to  convey 
a  like  immunity.  Memphis  &*  C.  R.  Co.  v. 
Gaines,  97  [/.  S.  697.— FOLLOWING  Hum- 
phrey V.  Pegues,  16  Wall.  (U.  S.)  244; 
Morgan  v.  Louisiana,  93  U.  S.  217. — FoL> 
LOWED  IN  Tennessee  v.  Whitworth.  117 
U.  S.  139.  Quoted  in  Louisville  &  N.  R. 
Co.  V.  Gaines,  2  Flipp.  (U.  S.)  621,  3  Fed. 
Rep.  266. 

A  railroad  was  chartered  in  South  Caro« 
lina  at  a  time  when  a  general  law  declared 
all  charters  to  be  "  subject  to  amendment, 
alteration,  or  repeal  "  unless  expressly  ex- 
cepted. The  charter  contained  no  express 
exception,  but  provided  that  the  company 
should  enjoy  "  all  the  rights,  privileges,  and 
immunities  "  of  a  certain  other  company. 


i 


TAXATION,  140. 


807 


which  was  expreuly  excepted  from  the 
general  law,  and  had  an  immunity  from 
taxation  for  thirty-six  years.  Held,  that  the 
charter  must  be  construed  to  grant  an  im- 
munity from  t4.xation  for  thirty-six  years 
also,  unless  the  legislature  should  in  the 
meantime  withdraw  the  exemption.  H<^i 
V.  Richmond  6-  D.  R.  Co.,  09  U.  S.  348.  — 
Modifying  Tomlinson  v.  jessup,  15  Wall. 
459— QiJOTED  IN  Charlotte, C.  &  A.  R.  Co. 
V.  Gibbes,  31  Am.  &  Eng.  R.  Cas.  464,  27 
So.  Car.  385, 4  S.  E.  Rep.  49 ;  Memphis  & 
L.  R.  R.  Co.  V.  Berry,  41  Ark.  436. 

In  such  case,  if  it  be  conceded  that  the 
company  acquired  an  exemption  from  fu- 
ture legislative  control,  it  was  lost  when  the 
company  subsequently  obtained  an  amend- 
ment to  its  charter,  which  did  not  exempt  it 
from  the  operation  of  the  general  law.  Hcgt 
V.  Richmond  &*  D  R.  Co.,  99  U.  S.  348. 

The  charter  of  plaintiff  corporation  pro- 
vided that  it  should  have  all  the  powers  and 
privileges  and  be  subject  to  all  the  obliga- 
tions given  to  and  imposed  upon  another 
railroad  corporation  in  certain  sections  of 
the  act  of  incorporation,  and  among  the 
provisions  of  those  sections  was  one  ex- 
empting its  property  from  taxation.  Held, 
that  such  provision  did  not  exempt  the 
property  of  plaintiff  from  taxation.  An- 
napolis &»  E.  R.  R.  Co,  V.  Annt  Arundel 
County  Com'rs,  i  Am.  &*  Eng.  R.  Cas.  403,  3 
Am.  &*  Eng.  R.  Cas.  422,  103  U.  S.  i. 

The  charters  of  the  earlier  railroad  com- 
panies incorporated  by  the  state  ol  Tennes- 
see contained  exemptions  from  taxation ; 
but  in  later  charters  the  legislature,  to  save 
repetition,  instead  of  enumerating  all  the 
powers  and  immunities  intended  to  be 
granted,  was  content  to  refer  to  some  earlier 
charter,  and  give  to  the  new  company  "  all 
the  rights,  powers,  and  privileges  "  of  the 
old.  Held,  that  the  legislature  intended 
to  confer  these  "  rights,  powers,  and  privi- 
leges "  as  fully  as  if .  specifically  repeated  in 
the  new  charter,  and  such  was  the  recog- 
nized construction  of  such  charters  by  all 
the  departments  of  the  state  government 
for  more  than  twenty  years.  Louisville  &» 
N.  R.  Co.  V.  Gaines,  2  FUpp.  (£/.  5.)  621,  3 
Fed.  Rep.  266. 

(2)  State  decisions.— Whtrt  a  company  is 
chartered  with  an  exemption  from  taxation, 
and  a  second  company  is  chartered  with  the 
•ame  "  rights  and  privileges  "  at  the  former 
company,  an  exemption  from  taxation  will 
not  be  included  as  "  rights  and  privileges. 
7  D.  R.  0.-57 


IVilson  v.  Gaines,  9  Baxt.  {Tenn.)  546,  16 
Am.  Ry.  R*p.  316.— REVIEWED  IN  State 
V.  Nashville.  C.  &  St.  L.  R.  Co.,  12  Lea 
(Tenn.)  583. 

In  Tennessee,  where  the  Constitution 
makes  a  distinction  between  rights  and 
privileges,  and  immunities  and  exemptions, 
the  legislative  grant  to  one  company  of  all 
the  "rights,  powers,  and  privileges"  con- 
ferred upon  another  company  by  the  act  in- 
corporating it  will  not  carry  an  exemption 
from  taxation  included  in  the  latter  act. 
Wilson  V.  Gaines,  3  Tenn.  Ch.  597.  —  Fol- 
lowing East  Tenn.,  V.  &  G.  R.  Co.  v.  Ham- 
blen County,  102  U.  S.  273. 

An  exemption  from  taxation  in  one  char- 
ter of  a  company  will  not  pass  by  the  grant 
of  its  rights  and  privileges  to  another  com- 
pany.    Wilson  v.  Gaines,  3  Tenn.  Ch.  597. 

The  original  charter  of  a  company  gave 
to  it  exemption  from  taxation,  which  could 
not  be  taken  away  without  its  consent ;  but 
afterwards  the  company  accepted  benefits 
from  the  legislature  on  condition  that  it 
should  reserve  the  right  to  tax  the  property 
of  the  company.  Still  later  plaintiff  com- 
pany succeeded  it  with  "  all  its  privileges 
and  obligations."  Held,  that  the  property 
was  subject  to  general  taxation.  Seaboard 
&»  R.  R.  Co.  v.  Norfolk  County  Sufrs,  83 
Va.  195,  2  S.  E.  Rep.  278. 

140.  Provision  for  payment  of 
given  sum  in  lieu  of  taxes.— A  statute 
provided  that  railroad  companies  should 
pay  a  tax  on  the  "market  value  of  their 
stock  and  of  their  funded  and  floating 
debt,"  which  should  be  "  in  lieu  of  all  other 
taxes  on  railroad  property  and  franchises 
within  this  state."  Held,  that  this  did  not 
exempt  from  taxation  railroad  bonds  held 
by  individuals.  Bridgeport  v.  Bishop,  33 
Conn.  187. 

But  under  the  above  statute  all  the  prop- 
erty of  a  company,  whether  used  for  railroad 
purposes  or  not,  is  exempted  from  taxation. 
Osborn  v.  New  York  6-  A^.  H.  R.  Co.,  40 
Conn.  491,  5  Am.  Ry.  Rep.  218. 

Del.  Act  of  April  11,  1873,  exempting  the 
Philadelphia,  W.  &  B.  R.  Co.  from  "all 
taxes  *  *  *  under  any  and  all  laws  '*  upon 
payment  of  a  certain  commutation  therein 
provided  for,  includes  county  as  well  as 
state  taxes.  Neary  v.  Philadelphia,  W.  &• 
B.  R.  Co.,  {Del.)  9  Atl.  Rep.  405 ;  affirming 
S  Del.  Ch.  600,  8  Atl.  Rep.  363.— APPROVINO 
Minot  V.  Philadelphia,  W.  &  B.  R.  Co.,  18 
Wall.  (U.  S.)  225:  Orange  &  A.  R.  Co.  v. 


9 


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898 


TAXATION,  149. 


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Alexandria.  17  Gratt.  (Va.)  181 ;  Dunlieth 
&  D.  Bridge  Co.  v.  Dubuque,  32  Iowa  429; 
People  V.  Davenport,  91  N.  Y.  584. 

Where  a  charter  provides  that  the  com- 
pany shall  pay  a  certain  tax  to  the  state 
based  Oii  its  net  income,  and  that "  no  other 
tax  than  herein  is  provided  shall  be  levied 
or  assessed  on  said  corporation,  or  on  any  of 
their  privileges,  property,  or  franchises,"  the 
company  is  not  liable  to  general  taxation. 
Siate  v.  /Cnox  &*  L.  R.  Co.,  78  Me.  92,  2  Atl. 
Rep.  846. 

By  the  act  under  which  a  city  railway 
company  was  incorporated,  the  company 
was  required  to  pay  annually  a  certain 
specific  tax,  which  was  declared  to  be  in 
"  lieu  of  all  other  taxes  upon  all  the  property 
of  said  company."  Held,  that  the  company 
was  exempt  from  all  other  taxes.  Le  Roy  v. 
East  Saginaw  City  R.  Co.,  18  Mich.  233. 

Under  the  amended  charter  of  defendant 
corporation,  granting  in  terms  an  exemption 
from  all  taxation  and  from  all  assessments 
in  respect  to  its  railroad  and  its  appurte- 
nances and  appendages,  and  all  other  prop- 
erty, estate,  and  effects  of  said  company, 
and  also  its  capital  and  stock,  and  declaring 
that  the  payment  by  it  of  the  per  centum  of 
gross  earnings  as  therein  provided,  aiinually, 
"  shall  be  and  is  in  full  of  all  taxation  and 
assessment  whatever,"  no  special  assessment 
for  any  local  improvement  can  be  imposed 
upon  any  portion  of  its  railroad,  or  any  of 
its  real  estate  used  in  connection  therewith. 
St.  Paul  V.  St.  Paul  &>  S.  C.  R.  Co.,  23  Minn. 
469,  17  Am.  Ry.  Rep.  177.  —  Followed  in 
Stevens  County  v.  St.  Paul,  M.  &  M.  R.  Co., 
39  Am.  &  Eng.  R.  Cas.  225,  36  Minn.  467,  31 
N.  W.  Rep.  942. 

The  rule  that  "  taxation,"  and  "  all  taxes," 
when  found  in  a  state  law  granting  an  ex- 
emption from  being  taxed,  are  understood 
to  mean  only  general  or  ordinary  taxes,  and 
do  not  include  special  or  local  assessments, 
does  not  apply  when  the  statute  is  not  a 
grant  of  exemption,  but  merely  provides  a 
mode  of  commutation  therefor,  based  upon 
a  percentage  of  earnings  or  income  agreed 
upon  as  a  just  equivalent,  equally  advan- 
tageous and  beneficial  to  the  state.  An 
exemption  must  be  strictly  construed ;  not 
so  a  commutation.  St.  Paul  v.  St.  Paul 
&•  S.  C.  R.  Co.,  23  Minn,  469,  17  Am.  Ry. 
Rtp.  177. 

Minn.  Special  Law,^  1857,  ch.  i,  §  18,  pro- 
viding that  the  company  on  or  before  March 
1st  in  each  year  pay  into  the  state  Keasury 


three  per  cent,  of  its  gross  earnings,  that 
sum  to  be  in  lieu  of  all  taxes  and  assessments 
— held,  to  deprive  the  state  of  the  right  to 
assess  the  land  in  specie.  Hennepin  County 
V.  St.  Paul,  M.  4*  M.  R.  Co.,  33  Minn.  534. 
24  A^.  W.  Rep.  196.— Distinguished  in 
Martin  County  v.  Drake,  37  Am.  &  Eng.  R. 
Cas.  389,  40  Minn.  137,  41  N.  W.  Rep.  942. 

If  a  railroad  corporation  situated  in  an- 
other state  pays  a  specific  tax  upon  all  its 
capital  invested  or  expended,  whether  repre- 
sented by  capital  stock  or  indebtedness  of 
the  corporation,  and  such  taxation  is  de« 
dared  to  be  in  lieu  of  all  state,  county, 
township,  or  other  taxes  in  that  state,  and 
it  appears  that  such  specific  tax  was  in- 
tended to  be  a  fair  equivalent  for  the  taxes 
that  would  otherwise  be  laid  on  such  prop- 
erty by  the  ordinary  means  of  taxation,  such 
property  should  not  again  be  taxed  in  this 
state  to  the  owners  of  shares  of  the  capital 
stock  of  such  corporation.  Kimball  v.  Mil- 
ford,  54  N.  H.  406. 

The  charter  of  a  company  provided  for 
the  payment  to  the  state  treasurer  of  ten 
cents  for  each  passenger,  and  fifteen  cents 
for  each  ton  of  merchandise,  transported  on 
the  road ;  and  declared  that  "  no  other  tax 
or  impost  shall  be  levied  or  assessed  upon 
the  company."  Held,  that  the  company  is 
exempt  from  any  tax  for  state,  county,  or 
township  purposes.  Camden  &*  A.  R.  Co. 
V.  Hillegas,  18  N.J.  L.  1 1.— DISTINGUISHED 
IN  State  (Catnden  &  A.  R.  &  T.  Co.,  Pros.) 
V.  Mansfield  Com'rs,  23  N.  J.  L.  510. 

A  company  whose  charter  provides  a  cer- 
tain mode  of  taxation  in  lieu  of  other  taxes 
is  not  liable  to  be  assessed  in  the  ordinary 
manner.  Douglass  v.  State  {Orange  &»  N. 
H.  C.  R.  Co.,  Pros.),  34  N.J.  L.  485 ;  affirm- 
ing i\N.J.  L.  82. 

Where  there  are  express  terms  of  exemp- 
tion from  all  other  tax,  although  the  pre< 
scribed  method  of  taxation  is  future  and 
contingent  in  effect,  yet  no  tax  can  be 
claimed  until  the  condition  upon  which  the 
special  tax  becomes  payable  is  fulfilled. 
McGavisk  v.  State  {Morris  &•  E.  R.  Co., 
Pros.),  34  N.  J.  L.  509. 

Where,  by  a  supplement  to  its  charter,  a 
railroad  company  is  required  to  pay  to  the 
state  a  tax  of  one  half  of  one  per  centum 
on  the  cost  of  its  road,  in  lieu  of  all  other 
taxes  on  any  property  purchased,  held,  or 
used  by  the  company  for  the  purposes  of 
its  charter,  it  is  exempt  from  taxation  by 
a  nunicipal  corporation  in  which  a  portion 


TAXATION,  160, 161. 


899 


of  its  property  is  situated.  State  {Morris  A* 
E.  R.  Co.,  Pros.)  V.  Haight,  35  N.J.  L.  40.— 
Distinguishing  Sute  (Camden  &  A.  R.  & 
T.  Co.,  Pros.)  V.  Mansfield  Com'rs.  23  N. 
J.  L.  sio;  State  (New  Jersey  R.  &  T.  Co.. 
Pros.)  V.  Newaric,  35  N.  J.  L.  315,  26  N.  J. 
L.  519. 

The  rule  that  a  statute  granting  an  ex- 
empticp  from  taxation  must  be  strictly  con> 
strued  against  the  taxpayer  does  not  apply 
where  a  company  is  released  from  other 
taxation  upon  payment  of  a  certain  percent- 
age of  ita  annual  income,  where  the  legisla- 
ture  seems  to  have  regarded  such  tax  as  the 
equivalent  of  other  taxes.  Milwaukee  &* 
St.  P.  R.  Co.  V.  Crawford  County  Sup'rs, 
29  Wis.  116,  12  Am.  Ry.  Rep.  310.  — Re- 
viewed IN  Milwaukee  &  St.  P.  R.  Co.  v. 
Milwaukee,  34  Wis.  271. 

160.  Exemptions  under  the 
Florida  Improvement  Act.  — An  ex- 
emption from  taxation  granted  to  a  company 
by  Florida  Act  of  Jan.  6,  1855,  "  to  provide 
for  and  encourage  a  liberal  system  of  inter- 
nal improvements,"  was  not  assignable,  and 
the  Act  of  March  5, 1881,  imposing  a  tax  on 
the  Louisville  and  Nashville  railroad,  that 
had  succeeded  through  several  grants  to 
such  property,  is  not  unconstitutional  as 
impairing  the  obligation  of  a  contract. 
Louisville  6*  N.  R.  Co.  v.  Palmes,  13  Am. 
&*  Eng.  R.  Cas.  380,  109  U.  S.  244,  3  Sup. 
Ct.  Rep.  193.— Approving  Wilson  v.  Gaines, 
103  U.  S.  417;  Morgan  v.  Louisiana,  93  U. 
S.  217.— Applied  in  Keokuk  &  W.  R.  Co. 
V.  Scotland  County  Court,  41  Fed.  Rep. 
305.  Followed  in  St.  Louis,  L  M.  &  S. 
R.  Co.  V.  Berry,  1 13  U.  S.  465 ;  Tennessee  v. 
Whitworth,  117  U.  S.  139.  Referred  to 
IN  Citizens'  St.  R.  Co.  v.  Memphis,  53  Fed. 
Rep.  7 1 5.  Reviewed  in  State  Board  of  As- 
sessors V.  Morris  &  E.  R.  Co.,  49  N.  J.  L.  193. 

The  railroads  exempted  from  taxation 
under  the  above  statute,section  1 8,  were  such 
roads  only  as  were  a  part  of  the  state  system 
thereby  created,  and  the  railroad  from  Live 
Oak,  Florida,  to  Lawton,  Georgia,  was  not 
embraced  therein.  Atlantic  &*  G.  R.  Co.  v. 
Allen,  15  Fla.  637. 

The  Constitution  of  Florida  in  force  in 
1855  made  it  the  duty  of  the  legislature  to 
designate  objects  of  improvement  which 
should  constitute  a  state  system.  The 
legislature  designated  certain  railroads  as 
the  proper  objects  to  be  aided  from  a  trust 
fund  created  by  it;  and  each  road  was 
exempt  from  taxation  during  its  construc- 


tion and  for  thirty-five  years  from  its  comple- 
tion. Held,  that  this  exemption  rested  in 
contract  and  attached  to  the  property  and 
could  not  subsequently  be  divested  by  the 
state.  Gonzales  v.  Sullivan,  16  Fla.  791.— 
Followed  in  Palmes  v.  Louisville  &  N.  R. 
Co.,  19  Fla.  231. 

The  Fla.  Improvement  and  Railroad  Act 
of  1855  is  not  organic  law,  but  is  subject  to 
modification  by  subsequent  legislatures, 
within  the  constitutional  limitations.  Gon- 
gales  V.  Sullivan,  16  Fla.  791. 

Fla.  Const,  of  1839,  art.  11,  §  2,  makes  it 
the  duty  of  the  legislature  to  encourage  a 
system  of  internal  improvements,  and  to 
provide  for  the  application  of  a  certain 
internal  improvement  fund.  Article  8,  §  i, 
makes  it  the  duty  of  the  legislature  to 
adopt  a  revenue  system  "  having  regard  to 
an  equal  and  uniform  mode  of  taxation  to 
be  general  throughout  the  state."  Held, 
that  the  legislature  might  exempt  a  railroad 
aided  by  the  improvement  fund  from  tax- 
ation under  the  former  section,  regardless 
of  the  latter  section.  Palmes  v.  Louisville  &* 
N.  R.  Co.,  19  Fla.  231.— Following  Gon- 
zales V.  Sullivan,  16  Fla.  791.  Referring 
TO  Wilson  V.  Gaines,  103  U.  S.  417. 

161.  Period  of  exemption— Exten- 
sions.—  A  railroad  was  chartered  with  a 
provision  that  its  "capital  stock"  should 
be  forever  exempt  from  taxation,  and  thax 
"the  road  with  its  fixtures  and  appurte- 
nances "  should  be  exempt  for  twenty  yer.rs. 
Held,  that  this  did  not  exempt  property  of 
the  road  which  had  been  bought  wiin  the 
capital  from  taxation  after  twenty  years. 
Memphis  &*  C.  R.  Co.  v.  Gaines,  97  U.  S. 
697.— Followed  in  Tennessee  v.  Whit- 
worth,  117  U.  S.  129. 

An  Arkansas  statute  provided  that  cer* 
tain  swamp  lands  should  "  be  exempt  from 
taxation  for  ten  years  or  until  reclaimed." 
Held,  that  the  exemption  continued  for  ten 
years  if  the  lands  were  not  sooner  reclaimed, 
but  that  it  ceased  on  reclamation.  Memphis 
&*  St.  L.  R.  Co.  V.  Loftin,  13  Am.  &»  Eng. 
R.  Cas.  377.  105  U.  S.  258.— Following 
State  V.  Crittenden  County,  19  Ark.  360; 
McGehee  v.  Mathis.  21  Ark.  58. 

A  provision  in  a  railroad  charter  by 
which  "the  capital  stock  of  said  company 
shall  be  exempt  from  taxation,  and  its  road, 
fixtures,  workshops,  warehouses,  vehicles  of 
transportation,  and  other  appurtenances 
shall  be  exempt  from  taxation  for  ten  years 
after  the  completion  of  said  road  within  the 


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TAXATION,  162, 168. 


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III 


limits  of  thii  state  "  does  not  exempt  the 
road,  fixtures,  and  appurtenances  from  tax« 
ation  before  such  completion  of  the  road. 
Vicktburg,  S.  S*  P.  R.  Co.  v.  Dennis,  24 
Am.  ^  Et^.  R.  Cat.  $00,  116  I/.  S.  665,  6 
Sufi.  0.  Rtp.  625.— Followed  in  Yazoo  & 
M.  V.  R.  Co.  V.  Thomas,  41  Am.  &  Eng.  R. 
Cas.  599,  132  U.  S.  174,  10  Sup.  Ct.  Rep.  68. 
Quoted  in  Wilmington  A;  W.  R.  Co.  v. 
Alsbroolc,  no  N.  Car.  137. 

Under  Ala.  Act  approved  February  23, 
1876.  known  as  the  "  Debt  Settlement 
Act"  (Sess.  Acts  1875-76,  p.  130),  certain 
lands  granted  by  congress  to  aid  in  the 
construction  of  railroads,  and  afterwards 
acquired  by  the  state  under  mortgages  to 
secure  its  indorsement  of  railroad  bonds, 
were  to  be  disposed  of  to  said  railroads,  or 
for  their  benefit ;  and  it  was  declared  that 
"  the  lands  which  may  be  acquired  by  the 
holders  of  the  bonds  mentioned  in  the  fif- 
teenth section  of  this  act,  or  by  the  trustees 
hereinafter  provided  for  the  use  of  said 
bondholders  under  the  terms  of  this  act, 
shall  remain  exempt  from  taxation  by  this 
state,  for  the  term  of  eight  years  from  the 
first  day  of  May,  1876."  Held,  that  as  the 
lands  were  not  subject  to  taxation  from 
January  i  to  May  1.  1876,  while  they  were 
the  property  of  the  state,  and  as  no  pro- 
vision was  made  by  law  for  taxing  lands 
acquired  after  January  ist,  the  year  1876 
was  not  to  be  computed  as  one  of  the  eight 
years  during  which  the  lands  were  exempt 
from  taxation,  but  the  term  commenced 
with  the  year  1877.  Swann  v.  State,  77 
Ala.  545. 

A  railroad  was  by  charter  exempt  from 
taxation  for  twenty  years,  which  ended  in 
March,  1877.  The  taxes  assessed  for  1877 
were  assessed  in  April.  The  company  paid 
a  firo  rata.  Held,  that  the  company  was 
liable  for  all  the  taxes  assessed  for  1877. 
When  the  taxes  were  assessed  no  exemption 
existed.  McClehan  v.  Memphis  &*  C.  R. 
Co.,  II  Lta  {Tenn.)  336. 

While  certain  lands  were  held  by  the 
state  in  trust  for  the  building  of  a  proposed 
railroad  (now  owned  by  plaintiff),  and  hence 
were  not  subject  to  taxation,  the  legislature 
had  the  power,  in  furtherance  of  that  object 
and  in  execution  of  the  trust,  to  exempt 
such  lands  from  taxation  for  a  term  of 
years;  and  such  power,  having  been  exer- 
cised, could,  within  the  discretion  of  the 
legislature,  be  exerrSsed  anew  by  granting 
an  extension  of  the  exemption.    (Orton,  J., 


dissenting.)  Wisconsin  C.  R.  Co.  v.  Taylor 
County,  I  Am.  6*  Eng.  R.  C  v.  $32,  52  fVis. 
37,  8  A'.  tV.  Refi.  833. 

Wis.  Laws  of  1877,  ch.  24,  entitled  "  An 
act  to  extend  the  time  of  exemption  from 
assessment  and  taxation  of  certain  lands, 
fixed  in  the  act  incorporating  the  Winne- 
bago and  Lalce  Superior  railroad  company, 
approved  April  6, 1866,  and  in  the  act  incor- 
porating the  Portage  and  Superior  railroad 
company,  approved  April  9,  1866,"  is  valid. 
Wisconsin  C.  R.  Co.  v.  Taylor  County,  i  Am. 
&*  Eng.  R.  Cas.  532,  52  Wis.  37,  8  A'.  W. 
Refi.  833. 

The  lands  of  a  company  were  exempt 
from  taxation  for  a  period  of  ten  years.  By 
a  subsequent  statute  the  time  was  extended 
three  years.  Held,  that  the  second  term  of 
three  years  runs  three  years  from  the  termi- 
nation of  the  original  exemption,  and  not 
three  years  from  the  date  of  the  approval 
of  the  act.  Wisconsin  C.  R.  Co.  v.  Com- 
stock,  n  Wis.8i,36N.  W.  Refi.  8^3. 

When,  by  statute,  lands  are  granted  to  a 
company  to  aid  in  the  construction  of  its 
road,  and  it  is  provided  that  patents  for  the 
lands  earned  shall  be  issued  on  completion 
of  each  section  of  twenty  miles,  and  a  sub- 
sequent statute  provides  that  all  lands 
theretofore  patented,  or  which  might  there- 
after be  patented  by  the  state  to  the  com- 
pany, "  are  hereby  exempted  and  shall 
remain  exempt  from  taxation  *  *  "*  for  the 
period  of  ten  years,"  the  exemption  takes 
effect  immediately  as  to  all  lands  acquired 
by  the  company  under  the  grant,  and  is 
limited  to  a  period  of  ten  years  from  the 
date  of  the  statute  conferring  it,  and  does 
not  extend  to  a  period  of  ten  years  from  the 
date  of  the  respective  patents  for  the  lands. 
State  ex  rel.  v.  Harshaw,  41  Am.  &*  Eng.  R. 
Cas.  685,  76  Wis.  230,  45  N.  W.  Refi.  308. 

152.  Leaslngr  road,  when  extin- 
guishes exemption.— Where  a  company, 
exempt  by  its  charter  from  taxation,  abso- 
lutely transfers  its  property  for  1000  years 
under  the  guise  of  a  lease  to  another  com- 
piny  in  consideration  of  the  latter  company 
rjmpleting  the  road,  and  no  provision  is 
made  for  the  reversion  of  the  property,  the 
right  of  exemption  from  taxation  is  extin- 
guished. Com.  V.  Nashville,  C.  &*  St.  L.  R. 
Co.,  {Ky.)  54  Am.  &*  E^g.  R.  Cas.  294,  20  S. 
W.  Refi.  383. 

163.  How  pleaded.— A  party  alleging 
the  exemption  of  his  lands  from  taxation 
must  show  in  hit  pleadings  the  facu  that 


TAXATION,  1S4,  15S. 


901 


conititute  such  exemption.  Cairo  &»  F.  R. 
Co.  V.  Parks,  3a  Ark.  131.— Approved  in 
Denver  &  R.  G.  R.  Co.  v.  Outcalt.  2  Colo. 
App.  395.  Followed  in  Cateril  v.  Union 
Pac.  R.  Co.,  3  Idaho  $40;  Bielenberg  v. 
Montana  Union  R.  Co.,  38  Am.  &  Eng.  R. 
Cas.  275,  8  Mont.  271.  Reviewed  in  Little 
Rock  &  Ft.  S.  R.  Co.  V,  Payne,  33  Ark.  816. 

154.  AssiKnabillty  of  ezemptioua.* 
— Exemption  from  taxation  granted  to  a 
company  is  not  attached  to  the  road  and 
property  and  does  not  pass  with  it,  but  is  a 
personal  annuity  and  incapable  of  transfer 
without  express  statutory  authority.  Mtnt' 
phis  &»  L.  R.  R.  Co.  v.  Berry,  41  Ark.  436. 
— Following  Morgan  v.  Louisiana,  93  U. 
S.  217;  Louisville  &  N.  R.  Co.  v.  Palmes, 
109  U.  S.  244,  3  Sup.  Ct.  Rep.  193.  Quot- 
ing Coe  V.  Columbus,  P.  &  1.  R.  Co.,  10 
Ohio  St.  372 ;  State  ex  rel.  v.  Shefman,  22 
Ohio  St.  428. 

Exemption  from  taxation  is  a  personal 
privilege  to  the  person  to  whom,  or  the 
corporation  to  which,  it  is  given,  and  is 
incapable  of  transfer,  unless  there  is  express 
statutory  authority  for  it.  Statt  ex  rel.  v. 
Chicago,  B.  A*  K.  C.  R.  Co.,  89  Mo.  523,  14 
S.  H^.  Rep.  522.  IVilsoH  v.  Gaines,  9  Baxt. 
(Tenn.)  $46. 

It  is  a  privilege  entirely  distinct  from  the 
franchises  of  the  corporation,  and  will  not 
pass  by  a  transfer  under  legislative  authority 
empowering  the  corporation  to  assign  and 
transfer  its  franchises  and  property.  State 
Board  of  Assessors  yr.  Morris  &*  E.  R.  Co., 
49  N.J.  L.  193,  7  Atl.  Rep.  826.— Quoting 
Morgan  v.  Louisiana,  93  U.  S.  217 ;  Memphis 
&  L.  R.  R.  Co.  V.  Railroad  Com'rs,  112  U. 
S.  609. 

Where  the  enabling  act  empowering  a 
corporation  to  transfer  its  property  and 
franchises  includes  its  privileges  and  im- 
munities in  the  enumeration  of  the  powers 
granted,  immunity  from  taxation  possessed 
by  such  a  corporation  will  accompany  the 
property  and  franchises,  and  such  prop- 
erty and  franchises  will  continue  to  be 
held  under  the  immunity  from  taxation 
which  was  possessed  by  the  original  cor- 
poration, unless  a  constitutional  provision 
against  exemption  from  laxation  has  inter- 
dicted it,  or  the  contract  of  exemption  has, 
in  the  altered  condition  assumed  by  the 
corporation,  become  impossible  of  perform- 

*  Assignment  and  transfer  of  exemption,  see 
note,  17  Am.  &  Eng.  R.  Cas.  430. 


ance.  Slate  Board  of  Assessors  v.  Morris 
&>£.  R.  Co.,  49  N.f.  L.  193,  7  Atl.  Rep. 
826.  —  Distinguishing  Maine  C.  R.  Co. 
V.  Maine,  96  U.  S.  499;  Chesapeake  &  O. 
R.  Co.v.  Miller,  114  U.  S.  176.  Reviewing 
Tomlinson  v.  Branch,  15  Wall.  (U.  S.)  460; 
Humphreys.  Pegues.  16  Wall.  244;  Tnuk 
V.  Maguire,  18  Wall.  391 ;  Louisville  &  N. 
R.  Co.  V.  Palmes,  109  U.  S.  244. 

155.  When  pass  to  purchasers, 
generally.*— The  franchises  of  a  corpora- 
tion are  rights  or  privileges  which  are  essen- 
tial to  the  operation  of  the  corporation  and 
without  which  its  road  and  works  would  be 
of  little  value  ;  such  as  the  franchise  to  run 
cars,  to  take  tolls,  to  appropriate  earth  and 
gravel  for  the  bed  of  its  road,  or  water  for 
its  engines,  and  the  like.  Immunity  from 
taxation  is  not  itself  a  franchise  of  a  rail- 
road corporation  which  passes  as  such  with- 
out other  description  to  a  purchaser  of  its 
property.  Morgan  v.  Louisiana,  93  U.  S. 
217.— Distinguished  in  East  Tenn..  V.  & 
G.  R.  Co.  V.  Hamblen  County,  102  U.  S. 
273.  Reviewed  in  Louisville  &  N.  R. 
Co.  V.  Gaines,  2  Flipp.  (U.S.)  621,  3  Fed. 
Rep.  266. 

Where  a  company  which  has  an  exemp- 
tion from  taxation  constructs  and  then  buys 
a  road  which  has  no  exemption,  it  cannot 
extend  the  exemption  which  it  enjoys  to 
the  road  80  constructed  and  purchased. 
Burlington  &*  S.  W.  R.  Co.  v.  Putnam,  S. 
&*  L.  Counties,  5  Dill.  {C/.  S.)  289. 

A  foreign  company  which  has  aiuired 
its  rights  in  Missouri  under  the  Act  of 
March  24,  1870.  and  has  purchased  a  road 
in  the  state,  is  subject  to  taxation  on  said 
road,  although  the  road  may  have  been 
previously  exempt  from  taxation.  Burling- 
ton 6*  S.  W.  R.  Co.  V.  Putnam,  S.  6*  L. 
Counties,  5  Dill.  (U.  S.)  389. 

Ordinarily  an  exemption  from  taxation 
will  not  pass  to  a  purchaser  of  the  property, 
but  it  is  otherwise  where  the  statute  author- 
izing the  purchase  so  provides.  Picard  v. 
East  Tenn.,  V.  &•  G.  R.  Co.,  24  Fed.  Rep.  614 ; 
reversed  in  130  U.  S.  637, 9  Sup.  Ct.  Rep.  640. 

Where  a  company  whose  charter  pro- 
vides that  it  shall  be  taxed  as  other  rail- 
roads in  the  state  purchases  the  rights  and 
franchises  of  another  company  which  was 
forever  exempt  from  taxation,  by  authority 


C 

a 


1 

Ml 

5 

8 
8 

9 


*  Taxing  road  in  hands  of  purchasers  where 
road  was  exempt^  under  original  charter,  see  33 
475.  «*"»•• 


Am.  &  Eng.  R.  Cas. 


Wi 


TAXATION,  160. 


i   ill 


m 

■  •»■• 


;? 


of  law,  the  purchasing  company  it  not  ex- 
empt from  taxation.  EvatuvilU,  H.  &*  N. 
X.  Co.  V.  Com.,  9  Bush  {Ky.)  438.— QUOT- 
ING AND  APPROVING  Philadelphia  &  W.  R. 
Co.  V.  Maryland,  10  How.  (U.  S.)  376. 

Where  a  railroad  charter  contains  an 
immunity  from  taxation,  it  is  only  a  per- 
sonal privilege,  pertaining  alone  to  the  orig- 
inal company,  and  cannot  be  transferred. 
But  where  it  provides,  as  an  inducement  to 
purchasers,  that  they  shall  have  immunity 
from  taxation  until  the  road  be  completed, 
the  purchaser  is  not  bound  for  revenue 
until  the  completion  of  the  road.  Com.  v. 
Owensboro  &*  N.  R.  Co.,iJ  Am,  6*  Etig.  R. 
Cat.  438,  81  Ky.  572. 

The  sale  of  a  railroad,  together  with  all 
its  property  and  franchises,  will  not  carry  an 
exemption  from  taxation  contained  in  its 
charter,  unless  authorized  by  a  legislative 
act.  WHsoH  V.  Gaines,  3  Tenn.  Ch.  $97.— 
Reviewing  Knoxvilk  &  O.  R.  Co.  v. 
Hicks,  9  Baxt.  (Tenn.)  442. 

156.  When  pass  to  purchasers  at 
judicial  sale.* — Upon  a  sale  of  the  prop- 
erty and  franchises  of  a  railroad  corpora- 
tion, under  a  decree  founded  upon  a  mort- 
gage which,  in  terms,  covers  the  franchises, 
or  under  a  process  upon  a  money  judgment 
against  the  company,  immunity  from  taxa- 
tion upon  the  property  of  the  company,  pro- 
vided in  the  act  of  incorporation,  does  not 
accompany  the  property  in  its  transfer  to 
the  purchaser.  The  immunity  from  taxa- 
tion, in  such  cases,  is  a  personal  privilege  of 
the  company,  and  not  transferable.  Morgan 
V.  Louisiana,  93  U.  S.  217.— Approved  in 
Lawrence  v.  Morgan's  L.  &  T.  R.  &  S.  Co.. 
30  Am.  &  Eng.  R.  Cas.  309,  39  La.  Ann.  427, 
a  So.  Rep.  69 ;  Louisville  &  N.  R.  Co.  v. 
Palmes.  109  U.  S.  244.  Followed  in  Mem- 
phis &  L.  R.  R.  Co.  V.  Berry,  41  Ark.  436 ; 
Memphis  Sc  C.  R.  Co.  v.  Gaines,  97  U.  S. 
697.  Quoted  in  State  Board  of  Assessors 
V.  Morris  &  E.  R.  Co.,  49  N.  J.  L.  193;  In 
re  Toronto  St.  R.  Co.,  22  Ont.  374. 

The  purchasers  of  railroad  pi-operty  at  a 
judicial  sale  do  not  necessarily  succeed  to 
an  immunity  from  taxation  enjoyed  by  the 
original  company.  Wilson  v.  Gaines,  103 
U.  S.  417.— Reconciling  Knoxville  &  O. 
R.  Co.  V.  Hicks,  9  Baxt.  (Tenn.)  442.— Ap- 
proved IN  Louisville  &  N.  R.  Co.  v.  Palmes, 


*  Exemption  not  transferable  to  purchaser  at 
foreclosure  sale,  see  note,  13  Am.  &  Eng.  R. 
Cas.  389. 


109  U.  S.  344.  Followed  in  Tennessee  v. 
Whitworth,  117  U.  S.  139.  Referred  to 
IN  Palmes  v.  Louisville  &  N.  R.  Co.,  19 
Fla.  231. 

Under  a  decree  to  enforce  a  statutory 
lien  retained  by  the  state,  the  property  and 
franchises  of  a  railroad  were  sold.  Ne/d, 
that  the  property  was  thereafter  subject  to 
taxation  under  the  laws  of  the  state,  as  im- 
munity therefrom,  if  possessed  by  the  com- 
pany, did  not  pass  to  the  purchaser.  East 
Tenn.,  V,  &*  G.  R.  Co.  v.  Hamblen  County, 
102  U.  S.  273.  —  Distinguishing  Hum- 
phrey V.  Pegues.  16  Wall.  (U.  S.)  244;  Mor- 
gan V.  Louisiana,  93  U.  S.  217.  ExpLAlNiNO 
Knoxville  &  O.  R.  Co.  v.  Hicks,  9  Baxt. 
(Tenn.)  442.— Followed  in  Tennessee  v. 
Whitworth,  117  U.  S.  139:  Picard  v.  East 
Tenn.,  V.  &  G.  R.  Co.,  130  U.  S.  637. 

By  the  sale  and  conveyance  of  the  "  prop- 
erty and  franchises  "  of  a  company,  in  a  suit 
by  the  state  to  enforce  a  statutory  lien, 
immunity  from  taxation  conferred  by  the 
charter  of  the  company  does  not  pass  to  the 
purchaser.  The  immunity  is  not  transfer- 
able, unless  by  special  statutory  enactment. 
Picard  v.  East  Tenn.,  V.  &*  G.  R.  Co..  39 
Am.  &*  Eng.  R.  Cas.  5$!.  130  U.  S.  637,  9 
Sup.  Ct.  Rep.  640;  reversing  24  Fed.  Rep. 
614.— Following  East  Tenn.,  V.  &  G.  R. 
Co.  V.  Hamblen  County,  102  U.  S.  273. 

Where  a  railroad,  exempt  for  a  certain 
period  from  taxation,  is  sold  under  proceed- 
ings instituted  by  the  state  to  enforce  its 
lien  or  statutory  mortgage,  such  proceed* 
ings  being  authorized  by  statute  and  provid- 
ing for  the  sale  of  the  road,  franchises,  etc., 
and  providing  that  all  the  rights,  privileges, 
and  immunities  appertaining  to  the  fran- 
chise shall  be  transferred  to  and  vested  in 
said  purchaser,  and  decree  of  sale  so  direct- 
ing, the  state  is  estopped  to  tax  said  road 
during  the  time  the  original  company  was 
exempt  from  taxation.  In  such  a  case  the 
immunity  from  taxation  of  the  company 
passed  by  sale  to  the  purchaser.  State  v. 
Nashville,  C.  &*  St.  L.  R.  Co.,  17  Am.  5« 
E^g.  R.  Cas.  420, 12  Lea  (Tenn.)  583.— Dis- 
tinguishing Shields  v.  Ohio,  95  U.  S.  319,- 
Atlantic  &  G.  R.  Co.  v.  Georgia,  98  U.  S. 
359.  Reviewing  Wilson  v.  Gaines,  9  Baxt. 
(Tenn.)  546;  Knoxville  &  O.  R.  Co.  v. 
Hicks,  9  Baxt.  442.— Referred  to  in  State 
V.  Nashville.  C.  &  St.  L.  R.  Co..  86  Tenn. 
438,  6  S.  W.  Rep.  880. 

Where  a  statute  declares  that  a  company 
and  its  successors  and  assigns  shall  be  ex- 


TAXATION,  157. 


90S 


esieev. 

lED  TO 

Co.,  19 


empt  from  taxation  for  a  certain  term,  tha 
property  is  exempt  in  the  hands  of  pur- 
chaiors  at  a  foreclosure  sale.  International 
*-  G.  JV.  Ji.  Co.  V.  Smith  County.  65  Tex. 
21.— Following  International  &  G.  N.  R. 
Co.  V.  Anderson  County,  59  Tex.  654. 

157.  When  pass  to  reorganized 
road.— Where  a  company  by  its  charter  Is 
granted  an  exemption  from  taxation  for  a 
limited  period,  and  is  afterwards  merged  in 
another  company  which  becomes  invested 
with  all  its  property,  rights,  and  privileges, 
the  exemption  and  its  limitation  accompany 
the  property.and  a  perpetual  exemption  from 
taxation  in  the  charter  of  the  latter  company 
will  not  be  extended  to  the  property  so 
acquired  without  express  words  or  necessary 
intendment  to  that  effect.  Tomlinson  v. 
Branch.  15  Wall.  (U.  S.)  460,  3  Am.  Ry. 
Rep.  207.— Applied  in  Citizens'  St.  R.  Co. 
V.  Memphis,  53  Fed.  Rep.  715.  Distin- 
guished IN  People  ex  rel.  v.  Tax,  etc., 
Com'rs,  2  Am.  &  Eng.  R.  Cas.  343,  82  N.  Y. 
459.  Followed  in  Charleston  v.  Branch, 
15  Wall.  (U.  S.)  470,  n.  Reconciled  in 
Wilmer  v.  Atlanta  &  R.  A.  L.  R.  Co.,  2 
Woods  (U.  S.)447.  Reviewed  in  Hender- 
son V.  Central  Pass.  R.  Co.,  20  Am.  &  Eng. 
R.  Cas.  542,  21  Fed.  Rep.  358 ;  State  Board 
of  Asi.^jors  V.  Morris  &  E.  R.  Co..  49  N. 
J.  L.  193. 

A  railroad  was  chartered  in  South  Caro- 
lina without  any  exemption  from  taxation, 
but  by  a  subsequent  statute  its  property  was 
exempted.  Subsequently  a  company  that 
had  been  formerly  incorporated  but  which 
had  not  built  its  road  was  given  ail  the 
rights,  privileges,  and  powers  granted  by 
the  charter  of  the  former  company.  Held. 
that  the  property  of  the  second  company 
was  exempt  from  taxation ;  and  that  the 
amendment  to  the  charter  of  the  first  com- 
pany which  granted  the  exemption  could 
not  be  repealed  so  as  to  subject  the  road  to 
taxation.  Humphrey  v.  Pegues,  16  Wall. 
(U.S.)  244,  3  Am.  Ry.  Rep.  218.— DISTIN- 
GUISHED IN  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Hamblen  County,  102  U.  5.  273  ;  People  ex 
rel.  V.  Tax,  etc.,  Com'rs,  2  Am.  &  Eng.  R. 
Cas.  343, 82  N.  Y.  459.  Followed  in  Mem- 
phis &  C.  R.  Co.  V.  Gaines,  97  U.  S.  697. 
Quoted  in  Winona  &  St.  P.  R.  Co.  v. 
Deuel  County,  7  Am.  &  Eng.  R.  Cas.  348, 
3  Dak.  I.  Reviewed  in  Hewitt  v.  New 
York  &  O.  M.  R.  Co.,  12  Blatchf.  (U.  S.) 
452 ;  Sute  Board  of  Assessors  v,  Morris  & 
E.  R.  Co..  49  N.  J.  L.  193. 


A  state  chartered  a  railroad  with  a  pro- 
vision forever  exempting  it  from  taxation. 
The  state  made  a  loan  of  its  bonds  to  the 
company,  taking  a  lien  on  the  road  to  secure 
payment.  The  lien  was  foreclosed,  and  the 
state  bid  in  the  property,  and  afterwards  sold 
it,  the  purchasers  becoming  incorporated 
with  all  the  "  rights,  franchises,  privileges, 
and  immunities "  enjoyed  by  the  former 
company.  At  the  time  this  new  company 
was  chartered  the  Constitution  in  force  pro- 
vided that  "  no  property,  real  or  personal, 
shall  be  exempt  from  taxation,  except  such 
as  may  be  used  exclusively  for  public 
schools,  and  such  as  may  belong  to  the 
United  States,  to  the  state,  counties,  or  mu- 
nicipal corporations."  Held,  that  the  ex- 
emption from  taxation  did  not  pass  to  the 
new  company.  Trask  v.  Maguire,  18  Wall. 
{I/.  S.)  391.— Reviewed  in  State  Board 
of  Assessors  v.  Morris  &  E.  P  Co.,  49  N.  T. 
L.  193. 

Where  a  railroad  which  enjoys  an  im- 
munity from  taxation  is  sold  under  a  mort« 
gage  foreclosure,  a  new  company  organized 
by  the  purchasers  does  not  succeed  to  the 
immunity,  where  the  state  Constitution  in 
force  at  the  time  requires  that  railroad  prop- 
erty be  taxed  the  same  as  other  property. 
Memphis  &>  L.  R.  R.  Co.  v.  Railroad  Com'rs, 
Ml  U.  S.  609,  5  Sup.  Ct.  Rep.  299.— Fol- 
lowing Atlantic  &  G.  R.  Co.  v.  Georgia, 
98  U.  S.  359.  Quoting  Hall  v.  Sullivan 
R.  Co.,  Brun.  Col.  Cas.  (U.  S.)  613.— Ap- 
proved in  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Berry,  113  U.  S.  465.  Followed  in  People 
ex  rel.  v.  Cook.  1 10  N.  Y.  443.  Quoted  in 
State  Board  of  Assessors  v.  Morris  &  E.  R. 
Co.,  49  N.  J.  L.  193  ;  People  v.  O'Brien,  36 
Am.  &  Eng.  R.  Cas.  78.  "«  N.  Y.  i,  18  N. 
E.  Rep.  692,  19  N.  Y.  S.  R.  173 ;  In  re  New 
York  El.  R.  Co.,  17  N.  Y.  Supp.  778,  63  Hun 
629,43  N.  Y.  S.  R.  651. 

A  statute  conferring  on  a  new  corporation, 
formed  of  purchasers  of  railroad  property, 
"  all  the  franchises,  rights,  and  privileges  " 
of  the  old  one,  does  not  confer  an  exemp> 
tion  from  taxation  enjoyed  by  the  old  one, 
being  granted  at  a  tiipe  when  the  Constitu- 
tion and  general  law  of  the  state  reserved 
the  right  to  alter  or  repeal  any  charter. 
Chesapeake  6-  O.  R.  Co.  v.  Miller.  114  U.  S. 
176,  5  Sup.  Ct.  Rep.  813.— Applied  in  Keo- 
kuk &  W.  R.  Co.  V.  Scotland  County  Court, 
41  Fed.  Rep.  305.  Distinguished  in  Sute 
Board  of  Assessors  v.  Morris  &  E.  R.  Co.,  49 
N.  J.  L.  193.    Followed  in  Tennessee  v. 


s 


» 


8 
» 


904 


TAXATION,  158. 


:SM:>: 


ill 


Wbitworth,  117  U.  S.  139:  Hoard  v.  Chesa- 
peake &  O.  R.  Co.,  133  U.  S.  233. 

158.  When  paM  to  new  road  on 
consolidation.*— (1)  Ftderal  decisions. — 
Where  two  companiei  are  consolidated,  the 
presumption  is  that  each  of  the  two  united 
lines  will  be  held  with  the  privileges  and 
burdens  originally  attaching  thereto,  unless 
the  contrary  is  expressed.  Tomlinson  v. 
Branch,  15  Wall.  (U.  S.)  460,  3  Am.  Ry. 
Rtp.  307.  —  Approved  in  State  ex  rel.  v. 
Keokuk  &  W.  R.  Co.,  41  Am.  &  Eng.  R. 
Cas.  694,  99  Mo.  30,  6  L.  R.  A.  223,  12  S. 
W.  Rep.  290.  Followed  in  Charleston  v. 
Branch,  1 5  Wall.  (U.  S.)  470.  Reviewed  in 
State  ex  rel.  v.  Greene  County,  54  Mo.  540 ; 
State  ex  rel.  v.  Garroutte,  67  Mo.  445.— 
Charleston  v.  Branch,  1 5  Wall.  {U.  5".) 470,  n. 

Where  a  company,  by  its  charter,  is 
granted  an  exemption  for  a  limited  time, 
and  is  afterwards  merged  in  another  com- 
pany which  becomes  vested  with  its  prop- 
erty, the  limitation  and  the  exemption 
accompany  the  property,  and  a  perpetual 
exemption  from  taxation  in  the  charter  of 
the  latter  company  will  not  be  extended  to 
the  property  so  acquired.  Charleston  v. 
Branch,  15  Wall.  (U.  S.)  470,  «.— FOLLOW- 
ING Tomlinson  v.  Branch,  15  Wall.  460. 

Where  two  companies  unite  without  form- 
ing a  new  corporation,  but  the  powers  of 
one  company  are  enlarged,  and  the  consoli- 
dated company  succeeds  to  all  rights  and 
privileges  of  the  former  companies,  an  ex- 
emption from  taxation  is  not  thereby  lost. 
Southwestern  R,  Co.  v.  Georgia,  92  [/.  S. 
676.— Following  Central  R.  &  B.  Co.  v. 
Georgia,  92  U.  S.  665.— Followed  in  Ten- 
nessee V.  Whitworth,  117  U.  S.  139. 

Each  of  two  railroads  enjoyed  by  charter 
an  immunity  from  taxation  until  their  an- 
nual net  income  should  exceed  ten  per  cent. 
Afterwards  they  consolidated  under  a  stat- 
ute providing  that  the  new  corporation 
should  have  "  all  the  powers,  privileges,  and 
immunities"  possessed  by  either  of  the 
consolidating  companies.  Held,  that  a  new 
corporation  was  thus  formed  subject  to  the 
general  law  that  the.  state  might  alter  or 
amend  charters,  and  it  was  competent  for 
the  legislature  to  provide  a  different  mode 
of  taxation  for  the  company.    Maine  C.  R. 

^Effect  of  consolidation  on  exemption,  see 
note,  17  Am.  &  Eng.  R.  Cas.  436. 

Effect  of  consolidation  on  a  provision  for  ex- 
emption from  taxation,  see  41  Am.  &  Eng.  R. 
Cas.  703,  aittr. 


Co.  V.  Maine,  96  I/.  S.  499.— DISTINGUISH- 
ING  Minot  V.  Philadelphia,  W.  &  B.  R.  Co., 
18  Wall.  306:  Central  R.  &  B.  Co.  v. 
Georgia,  93  U.  S.  665 ;  Chesapeake  &  O. 
R.  Co.  V.  Virginia,  94  U.  S.  718.— Disap- 
proved in  Natchez,  J.  &  C.  R.  Co.  v.  '  am- 
bert,  70  Miss.  779.  Distinguished  in 
State  Board  of  Assessors  v.  Morris  &  E. 
R.  Co..  49  N.  J.  L.  193.  Followed  in 
Greenwood  v.  Union  Freight  R.  Co.,  105 
U.  S.  13.  Quoted  in  St.  Louis.  I.  M.  & 
S.  R.  Co.  V.  Berry,  41  Ark.  509.  Referred 
TO  IN  Citizens'  St.  R.  Co.  v.  Memphis,  53 
Fed.  Rep.  715.  Reviewed  in  Henderson  v. 
Central  Pass.  R.  Co.,  20  Am.  &  Eng.  R. 
Cas.  542,  2!  Fed.  Rep.  358. 

A  company  coming  into  existence  by  the 
consolidation  of  other  roads,  at  a  time  when 
the  Constitution  of  the  state  subjects  rail- 
road  property  to  taxation  the  same  as  the 
property  of  individuals,  does  not  succeed  to 
an  immunity  from  taxation  enjoyed  by  one 
of  the  consolidating  companies.  St.  Louis, 
/.  M.  6-  5.  R.  Co.  v.  Berry,  113  U.S.  465, 
SSup.  Ct.  Rep.  529. -Following  Louisville 
&  N.  R.  Co.  V.  Palmes,  109  U.  S.  244.— Ap- 
plied in  Keokuk  &  W.  R.  Co.  v.  Scotland 
County  Court,  41  Fed.  Rep.  305.  Re- 
ferred TO  in  Citizens'  St.  R.  Co.  v.  Mem- 
phis. 53  Fed.  Rep.  715. 

When  two  corporations  whose  shares  are 
by  a  state  statute  exempt  from  taxation  con- 
solidateinto  a  new  company  under  a  state  law 
which  makes  no  provision  to  the  contrary, 
and  issue  shares  in  the  new  company  in  ex- 
change for  shares  in  the  old  company,  the 
right  of  exemption  from  taxation  passes 
into  the  new  shares  and  into  each  of  them. 
Tennessee  v.  Whitworth,  29  Am.  &*  Eng: 
R.  Cas.  205,  117  £/;  5.  129.  6  Sup.  Ct.  Rep. 
645. 

An  act  consolidating  two  railroads  with 
•'  all  the  rights,  powers,  and  privileges  "  of 
the  old  companies  carries  into  the  cor  joli- 
dated  company  an  immunity  from  taxation 
enjoyed  by  the  old  companies,  or  by  either  ol 
them.  Tennessee  v.  Whitworth,  29  Am.  &» 
Eng.  R.  Cas.  211,  117  £/.  5.  139,  6  Sup.  Ct. 
Rep.  649.— Following  Philadelphia  &  W. 
R.  Co.  V.  Maryland,  10  How.  (U.  S  )  394 ; 
Southwestern  R.  Co.  v.  Georgia,  93  U.  S.  676, 
». ;  Central  R.  &  B.  Co.  v.  Georgia,  92  U.  S. 
665 ,  Memphis  ft  C.  R.  Co.  v.  Gaines,  97 
U.  S.  711 :  Atlantic  ft  G.  R.  Co.  v,  Georgia. 
98  U.  S.  359;  EastTenn..  V.  &  G.  R.  Co.  v. 
Hamblen  County.  103  U.  S.  277  ;  Wilson  v. 
Games.  103  U.  S.  417 ;  Louisville  ft  N.  R. 


TAXATION,  159,160. 


Co.  V.  Palmei.  109  U.  S.  353 ;  Chesapeake  ft 
O.  R.  Co.  V.  Miller,  114  U.  S.  185. 

Nor  do  the  provisions  of  Tenn.  Constitu- 
tion, prohibiting  thr  legislature  from  grant- 
ing special  privileges,  but  conferring  the 
power  to  grant  such  charters  of  corporations 
as  it  may  deem  expedient  for  the  public 
good,  prohibit  the  exemption.  Ttntuuti  v. 
Whitworth,  29  Am.  d-  Eng.  R.  Cas.iW, 
1 17  f/.  5.  139.  6  Sup.  Ct.  Rip.  649. 

Where  two  companies  are  consolidated 
under  a  statute  which  operates  as  the  crea- 
tion of  a  new  corporation,  and  the  state 
Constitution  in  force  at  the  time  prohibits 
legislative  exemptions  from  taxation,  the 
consolidated  company  does  not  acquire  an 
immunity  from  taxation  formerly  granted 
to  one  of  the  old  companies.  Keokuk  &* 
IV.  R.  Co.  V.  Scotland  County  Court,  41  Fed. 
Rep.  305.— Applying  St.  Louis,  I.  M.  ft  S. 
R.  Co.  V.  Berry.  113  U.  S.  46$.  $  Sup.  Ct. 
Rep.  529:  Chesapeake  &  O.  R.  Co.  v.  Mil- 
ler, 114  U.  S.  176,  5  Sup.  Ct.  Rep.  813; 
Louisville  &  N.  R.  Co.  v.  Palmes,  109  U.  S. 
344,  3  Sup.  Ct.  Rep.  193.  Not  following 
Scotland  County  v.  Missouri,  I.  ft  N.  R. 
Co.,  65  Mo.  123 ;  Secor  v.  Singleton.  9  Fed. 
Rep.  809. 

(2)  State  decisions. '-Tht  immunity  from 
taxation  granted  to  a  company  does  not 
pass  to  a  new  company  with  which  it  be- 
comes consolidated  unless  the  statute 
granting  the  immunity  so  clearly  provides 
for  its  transfer  as  to  leave  no  room  for  con- 
troversy. St.  Louts,  I.  M.  6»  S.  R.  Co.  v. 
Berry,  41  Ark.  $09.— Quoting  Louisville  ft 
N.  R.  Co.  V.  Palmes,  109  U.  S.  244,  3  Sup. 
Ct.  Rep.  193. 

An  exemption  from  taxation  is  a  personal 
privilege,  and  is  lost  by  a  company  by  con- 
solidating so  as  to  form  a  new  corporation. 
Arkansas  Midland  R.  Co.  v.  Berry,  44 
Ark.  17.— Explaining  Lewis  v.  Clarendon, 

SDill.  U.S.)  sap- 
Where  two  companies  unite  under  a 
statute  so  as  to  form  a  new  corporation, 
which  at  least  has  a  de  facto  existence,  its 
property  is  subject  to  taxation  under  the 
general  law ;  and  a  defect  in  the  statute  au- 
thorizing the  consolidation  cannot  be  set 
up  by  the  new  corporation  to  defeat  the 
payment  of  taxes  to  the  state.  Atlanta  &* 
R.  A.  L.  R.  Co.  V.  State,  1  Am.  6-  Eng.  R. 
Cos.  399,  63  Ga.  483. 

When  two  or  more  corporations  with  a 
special  immunity  Irom  general  taxation — 
the  amount  of  taxation  being  dependent 


upon  certain  precedent  acta  to  be  done  bjr 
such  corporations  thus  to  be  exempted — 
are  incorporated  into  a  new  corporation, 
which  is  neither  required  nor  able  to  do 
and  perform  the  acts  which  are  to  precede 
iuch  limited  and  special  exemption  from 
taxation,  the  new  corporation  thus  created 
cannot  claim  such  special  exemption.  Stati 
V.  Maine  C.  R.  Co.,6SMe.  488.— Explained 
IN  Sute  V.  Dexter  ft  N.  R.  Co.,  69  Me.  44. 

a.  What  is  Exempt. 

109.  In  generaL  — The  provision  of 
N.  Car.  Const,  art.  $,  |  6,  exempting  prop- 
erty belonging  to  the  state  from  taxation, 
does  not  embrace  the  interest  of  the  state 
in  business  enterprises,  such  as  railroads 
and  the  like,  but  applies  to  property  held 
for  state  purposes.  Atlant'c  &*  N.  C.  R, 
Co.  V.  Carteret  County  Com'rs,  7S  N.  Car.  474. 

A  railroad  charter  provided  that  "all 
machines,  wagons,  vehicles,  and  carriage! 
purchased  *  *  *  with  the  funds  of  the  com- 
pany, and  all  their  works  constructed  under 
the  authority  of  this  act  and  all  profits  which 
shall  accrue  from  the  same,  *  *  *  shall  be 
deemed  personal  estate,  and  shall  be  ex- 
empt from  any  public  charge  or  tax  whatso- 
ever." Held,  that  all  the  property,  profits, 
and  shares  of  stock  were  exempt  from  taxa- 
tion, whether  state,  county,  or  municipal, 
and  that  the  state  was  without  power  to 
repeal  the  axemption.  Com.  v.  Richmond 
&*  P.  R.  Co.,  24  Am.  6-  Eng.  R.  Cas.  482. 
81  Va.  3S5.— Quoting  Richmond  v.  Rich- 
mond ft  D.  R.  Co.,  21  Gratt.  (Vp.)  604. 

160.  Franchise.'*'  -The  charter  of  a 
company  created  in  North  Carolina  in  1853 
provided  that  the  shares  of  stock  should  be 
personal  property;  "and  the  property  of 
said  company  and  the  shares  therein  shall 
be  exempt  from  any  public  charge  or  tax 
whatsoever."  Held,  that  this  not  only  ex- 
empted the  rolling  stock  and  real  estate  of 
the  company  required  for  the  successful 
prosecution  of  its  business,  but  its  franchise 
also.  Wilmington  &*  R.  R.  Co.  v.  Reid,  13 
tVall.  {[/.  S.)  264,  3  Am.  Ry.  Rep.  19S:  re- 
versing 64  A^.  Car.  226.— Approved  in 
Memphis  ft  C.  R.  Co.  v.  Gaines,  3  Tenn. 
Ch.  604.  Distinguished  in  Wilmington 
ft  W.  R.  Co.  V.  Alsbrook,  146  U.  S.  279. 
Followed  in  Atlantic  ft  G.   R.   Co.  v. 

*  Valuation  of  franchises  as  a  basis  of  taxa- 
tion, see  note,  33  Am.  ft  Eno.  R.  Cas.  447. 


3 


1. 


8 

m 


f 


906 


TAXATION,  lei-ies. 


■'I'l'; '!•»."■ 
f  •  ■♦■•♦   't 


fii  •!  '  r 


I 


:3m  R; 

iSS;:: 


Allen,  IS  Fla.  637.  Qvotkd  in  Porter  v. 
Rockford.  R.  I.  &  St.  L.  R.  Co.,  76  III.  561  : 
Richmond  &  D  R.  Co.  v.  Brogden,  74  N. 
Ctr.  707;  Worth  v.  Wilmington  A  W.  R. 
Co.,  13  Am.  A  Eng.  R.  Cas.  386,  89  N.  Car. 
391. 45  Am,  Rep.679.  Reviewed  in  Hewitt 
V.  New  York  &  O.  M.  R.  Co..  §3  Blatchf. 
iw.  S.)  453 ;  Sute  V.  Philadelphia,  W.  &  B. 
R.  Co.,  4S  Md.  361 :  Wilmington  &  W.  R. 
Co.  V.  Alsbrook,  no  N.  Car.  137. 

101.  Real  estate,  generally.*  — 
Where  an  individual  buys  land  and  pays  the 
consideration  therefor  with  his  own  money, 
and  takes  the  deed  to  himself,  an  oral  agree- 
ment entered  into,  binding  him  to  lease  the 
land  to  a  railroad  company  for  1000  years, 
does  not  make  the  company  the  equitable 
owner  of  the  land,  so  as  to  bring  it  within 
the  provisions  of  a  law  exempting  the  lands 
of  the  company  from  taxation.  Com.  v.  Atays' 
villi  &>  B,  S.  R.  Co.,  (A>.)  2iS.IV.  Refi.  343. 

Under  Neb.  Const,  of  1875,  art.  9,  {  3,  all 
that  can  be  exempted  from  taxation  on 
account  of  forest  and  fruit-tree  culture  is 
the  increased  value  to  the  land  in  conse- 
quence  thereof.  Burlington  &*  M.  R.  R.  Co. 
V.  Seward  County  Com'rs,  10  N*b.  sil,  4  A^. 
W.  Rep.  1016. 

A  statutory  exemption  of  real  property 
of  a  railroad  company  covers  only  property 
owned  and  used  by  it  for  railroad  purposes. 
Richmond  &*  D.  R.  Co.  v.  Alamance  County 
Com'rs,  76  N.  Car.  3 is,  14  Am.  Ry.  Rep. 
304.— Quoted  in  Belo  v.  Forsyth  County 
Com'rs,  83  N.  Car.  415;  Richmond  &  D. 
R.  Co.  V.  Alamance  County  Com'rs,  7  Am. 
&  Eng.  R.  Cas.  339.  84  N.  Car.  504. 

A  railroad  charter  provided  for  the  pay- 
ment to  the  state  of  a  stated  percentage  of  !"^ 
gross  earnings,  in  lieu  of  all  taxes  and  assess- 
ments, and  that,  in  consideration  of  such 
payment,  the  company  should  be  forever 
exempt  from  all  assessments  and  taxes 
whatever  upon  its  stock,  franchises,  or 
estate,  real,  personal,  or  mixed.  Held,  that 
such  exemption  was  not  applicable  to  large 
tracts  of  timber  land  purchased  by  the  cor- 
poration, from  which  to  take  timber  to  be 
converted  into  ties  and  lumber  for  the  use 
of  the  corporation.      Todd  County  v.  St. 


*  When  company's  real  estate  is  exempt,  see 
note,  17  Am.  &  Eno.  R.  Cas.  445. 

Exemption  of  land  bought  for  railway  pur- 
poses, see  33  Am.  &  Eng.  R.  Cas.  473,  abstr. 

Taxation  of  logs  cut  from  railroaid  lands  ex- 
empt from  taxation,  see  33  Am.  ft  Eng.  R.  Cas. 
473,  abttr. 


Paul,  M.  *•  M.  R.  Co.,  31  Am.  **  Enf.  X. 
Cas.  483.  38  Minn.  163,  36  N.  W.  Rep.  109. 
-  Quoting  Bank  of  Commerce  v.  Tennes- 
see, 104  U.  S.  493.  Refbrrino  to  Vermont 
C.  R.  Co.  V.  Burlington,  38  Vt.  193;  Wor- 
cester V.  Western  R.  Corp.,  4  Mete.  (Mass.) 
564;  Milwaukee  &  St.  P.  R.  Co.  v.  Mil- 
waukee, 34  Wis.  371.  Reviewing  Ramsey 
County  V.  Chicago,  M.  &  St.  P.  R.  Co.,  33 
Minn.  537,  34  N.  W.  Rep.  313;  InreSwigert, 
119  III.  83.— Followed  in  St.  Paul  v.  St. 
Paul,  M.  &  M.  R.  Co.,  39  Minn.  ii3,  38  N. 
W.  Rep.  925;  Hennepin  County  V.  St.  Paul, 
M.  &  M.  R.  Co.,  41  Am.  &  Eng.  R.  Cas.  635, 
43  Minn.  338,  44  N.  W.  Rep.  63. 

As  a  general  rule,  the  exemption  of  rail- 
road property  from  taxation  is  coextensive 
with  the  right  of  the  company  to  take  prop- 
erty by  condemnation.  So  held,  when  the 
question  related  to  the  exemption  of  real 
property.  Milwaukee  6-  St.  P.  R.  Co.  v. 
Milwaukee,  34  Wis.  371. 

Where  the  statute  exempts  all  property 
"  necessarily  used  in  operating  any  railroad," 
all  lots  or  parcels  of  land  necessarily  used 
for  repair  shops,  or  yards,  or  depot  grounds, 
or  for  the  preservation  and  protection  of 
the  roadbed,  or  for  the  purpose  of  obtain- 
ing gravel  and  earth  therefrom  for  the  road 
(the  same  being  adjacent  to  the  road),  are 
exempt  from  taxation ;  but  dwelling  houses 
and  the  land  occupied  by  them  are  not  ex- 
empt. Milwaukee  &*  St.  P.  R,  Co.  v.  Mil- 
waukee,  34  Wis.  371. 

162.  Right  of  way.  — The  >'  ■-"■  m 
of  a  right  of  way  from  taxat  ,  not 

exempt  the  superstructure,  i.  railway 

thereon.  Atlantic  &*  P.  R.  d  Lesueur. 
{Ariz.)  37  Am.  «S-  Eng.  R.  Cas.  368,  19  Pac. 
Rep.  157.— Followed  in  Atlantic  &  P.  R. 
Co.  V.  Yavapai  County  (Ariz.),  39  Am.  & 
Eng.  R.Cas.  543,  21  Pac.  Rep.  y6i.— Atlantic 
&•  P.  R.  Co.  V.  Yavapai  County,  (Ariz.)  39 
Am.  &*  Eng.  R.  Cas.  543,  21  Pac.  I^ff.  768. 
Following  Atlantic  &  P.  R.  Co.  v.  Lesueur, 
(Ariz.)  37  Am.  &  Eng.  R.  Cas.  368,  19  Pac. 
Rep.  157. 

103.  Roadbed,  track,  etc.— The  first 
section  of  N.  J.  Act  of  April  2,  1873,  en- 
titled "An  act  to  establish  just  rules  for 
the  taxation  of  railroad  corporations,  and  to 
induce  their  acceptance  and  uniform  adop- 
tion," exempts  from  townshipand  municipal 
taxation  the  main  stem  or  roadbed  and 
track  of  such  corporations,  not  exceeding 
100  feet  in  width.  State  (Central  Jt.  Co.. 
Pros,)  V.  Mutehltr,  41  N.  J.  L,  96, 


TAXATION,  164. 


007 


The  above  lectlon  doee  not  enlarge  or  re* 
strict  the  power  of  companiei  subject  to  its 
provisions  to  acquire  or  hold  lands  for  road* 
way.  Such  companies  are  exempt  from  local 
taxation  upon  their  road  width,  as  allowed 
by  their  acts  of  incorporation,  and  all  struc* 
tures  thereon  suitable  and  proper  in  use  for 
the  purposes  of  the  corporation,  and  not 
otherwise  used.  Upon  all  lands  outside 
such  roadbed,  intermediate  between  the  ttr- 
mini,  they  are  subject  to  local  taxation. 
Stat*  {JPinnsyhania  R.  Co.,  Pros.)  v.  IVttktr- 
»■//,  41  N.J.  L.  147. 

The  payment  of  the  tax  upon  the  fran- 
chise of  a  railroad  corporation,  under  N. 
Car.  Act  of  1872-73,  ch.  115,  does  not  ex- 
empt the  corporation  from  the  payment  of 
county  and  state  taxes,  properly  levied  upon 
its  roadbed,  superstructure,  etc.  Wilming' 
ton  R.  Bridge  Co.  v.  Ntw  Hancvtr  County 
Com'rs,  72  A^.  Car.  15. —  AVPROVINO  Wil- 
mington, C.  &  A.  R.  Co.  V.  Brunswick 
County  Com'rs,  72  N.  Car.  10. 

164.  Land  grants.*  — (1)  Federal  dt- 
cisioHs, — The  case  of  Kansas  Pacific  R.  Co. 
V.  Prescott,  16  Wall.  603,  affirmed  so  far  as 
it  holds  that  lands  for  which  the  United 
States  has  not  issued  a  patent,  and  on  which 
the  costs  of  survey  have  not  been  paid,  are 
exempt  from  state  taxation ;  but  overruled 
so  far  as  it  holds  that  a  contingent  right  of 
pre-emption  in  lands  granted  to  the  Pacific 
railroad  constitutes  such  exemption.  Union 
Pac.  R.  Co.  V  McShane.  22  Wall.  (U.  S.) 
444,  II  Am.  Ry.  ^t/.  456. —Distinguished 
IN  Cass  County  v.  Morrison,  28  Minn.  357 
Followed  in  Northern  Pac.  R.  Co.  v. 
Traill  County,  25  Am.  &  Eng.  R.  Cas.  364. 
II S  U.  S.  600.  Reviewed  in  Wisconsin  C. 
R.  Co.  V.  Taylor  County,  i  Am.  &  Eng.  R. 
Cas.  532,  52  Wis.  37. 

Under  a  charter  of  a  railroad  exempting 
its  capital  stock  and  dividends  to  a  certain 
amount  from  taxation,  lands  granted  to  the 
company  by  a  state  to  aid  in  the  construe- 
lion  of  the  railroad  are  not  exempt.  Mem- 
fihis&'St.  L.  R.  Co.\.  Loft  in,  13  Am.  &* 
Etig.  R.  Cas.  377,  105  U.  S.  258. 

(2)  State  decisions. — Under  Ark.  Act  of 
April  8,  1869,  lands  acquired  by  grant,  dona- 
tion, or  subscription  in  aid  of  a  railroad  are 
exempt  from  taxation  until  conveyed  to  an 
actual  purchaser.  Cairo  &*  F,  R.  Co.  v. 
Parks,  32  Ark.  131. 


*Land  grant;  exemption  of,     "Sale  or  con- 
veyance," see  note,  39  Au.  &  Eng.  R.  Cas.  509. 


Where  a  company  enters  into  a  contract 
of  sale  of  lands,  no  conveyance  being  made, 
and  the  purchasers  fail  to  pay  the  purchase 
money  according  to  the  terms  of  the  con- 
tract, whereupon  the  company  declares  a 
forfeiture  of  the  contract  of  sale,  the  lands 
are  not  subject  to  taxation.  They  have 
not  been  "  sold  and  conveyed,"  within  the 
meaning  of  section  aa  of  the  charter.  Illinois 
C.  R.  Co.  V.  Goodwin,  94  ///.  262. 

And  a  person  purchasing  such  land  at 
tax  sale  after  such  forfeiture,  and  payin| 
subsequent  taxes  thereon,  will  be  entitlei 
to  have  the  payments  so  made  refunded  U 
him,  as  provided  in  III.  Rev.  St.  ch.  I3«, 
§  268,  and  may  recover  the  same  of  th». 
county  in  which  the  land  is  situated.  Chanf 
paign  County  v.  Reed,  106  ///.  389. 

An  act  of  the  legislature  was  entitled 
"An  act  to  authorize  aiiJ  empower  the 
board  of  control  of  staUi  swamp  lands  to 
make  an  appropriation  c(  state  swamp  lands 
to  aid  in  the  construCkton  of  a  railroad" 
between  given  points.  Held,  sufficient  to 
cover  the  exemption  from  taxation,  for  a  lim- 
ited time,  of  the  lands  granted.  Chippewa 
County  Sup'rs  v.  Auditor-General,  65  Mich. 
408,  32  N.  W.  Rep.  651. 

If  the  real  intention  of  the  parties  w«ui  in 
accordance  with  the  agreement,  legally  con- 
strued—that  is.  as  averred  by  the  pUititiiT, 
merely  to  afford  security  for  an  in<S«oted- 
ness  of  the  corporation  to  its  stocLUolders 
in  the  manner  specified  in  the  agiM^nent — 
the  transaction  would  not  constita«w  a  con- 
tract for  the  sale  of  the  land,  or  «  convey- 
ance of  the  same,  so  as  to  remcwe  the  ex- 
emption from  tt  station  which  attached  to 
the  land  while  it  remained  the  property  of 
the  corporation.  But  an  act  of  the  corpora- 
tion conferring  upon  its  stockholders  the 
entire  beneficia.  interest  in  the  land,  even 
though  the  bare  legal  title  is  retained  by 
the  corporation,  would  remove  the  exemp- 
tion and  subject  the  property  to  taxation. 
So.  if  the  transaction  was  intended  by  the 
parties  effectually  to  confer  upon  the  stock- 
holders such  interest  in  the  property,  but  a 
form  of  ownership,  or  a  declared  equity  of 
redemption,  was  reserved  for  the  purpose 
of  preserving  the  exemption  from  taxation, 
the  purpose  being  fraudulent  as  to  the  state, 
the  reservation  would  be  ineffectual,  and 
the  land  would  become  taxable.  St.  Paul 
&»  S.  C.  R.  Co.  V.  McDonald,  32  Am.  &* 
Eng.  R.  Cas.  208,  34  Minn.  183,  35  N.  IV. 
Rr/>.  57.  —  Followed  in  Sioux  City  &  St. 


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TAXATION.  164. 


P.  R.  Co.  V.  Robinson,  39  Am.  &  Eng.  R. 
Cm.  510,  41  Minn.  452,  43  N.  W.  Rep.  326. 

The  right  to  hold  land  granted  to  a  rail- 
road in  aid  of  its  principal  enterprise  exempt 
from  taxation  is  a  franchise,  but  ancillary 
and  subordinate;  and  the  right  of  a  com- 
pany to  exercise  such  franchise,  and  to 
continue  its  corporate  existence  for  such 
purposes  only,  cannot  lawfully  survive  after 
a  sale  of  its  railroad,  and  the  abandonment 
of  its  principal  business  as  a  railroad  corpo- 
ration, unless  by  the  authority  of  the  legis- 
lature expressed  or  clearly  implied.  The 
rights  of  the  state  are  not  lost  by  delay 
merely,  nor  can  they  be  waived  by  its  execu- 
tive officers.  S/aU  ex  rel,  v.  Minnesota  C. 
R.  Co.,  29  Am.  &*  Eng.  R.  Cas,  440, 36  Minn. 
246,  30  A^.  W.  Rep.  816. 

After  the  courts  liad  declared  the  charter 
of  a  company  forfeited  (36  Minn.  246),  the 
legislature  passed  an  act  continuing  such 
corporations  for  three  years  for  the  purpose 
of  disposing  of  their  property,  etc.  (Minn. 
Gen.  St.  1878,  ch.  34,  §  416).  Held,  that 
lands  acquired  by  the  company  under  the 
land  grant  of  1857,  and  legislation  subse- 
quent thereto,  are  exempt  from  taxation 
during  said  period  of  three  years,  unless 
leased  or  sold,  or  contracted  to  be  sold 
within  that  time.  Minnesota  C.  R.  Co.  v. 
Donaldson,  38  Minn.  115,  35  N.  W.  Rep. 
725.— Reviewing  Minnesota  C.  R.  Co.  v. 
Melvin,  21  Minn.  339. 

By  a  contract  entered  into  by  a  company 
"special  land  stock"  was  created  and  di- 
vided gratuitously  among  the  common 
stockholders.  The  special  stock  gave  to  the 
holder  no  rights  in  the  corporate  property 
or  management,  but  simply  rntitled  him  to 
a  proportionate  share  in  the  proceeds  of 
lands  set  apart  to  be  disposed  of  for  the 
benefit  of  all  the  holders.  A  trustee  for 
the  holders  was  designated  by  the  instru- 
ment, and  an  irrevocable  power  of  attorney 
was  made  to  another  person  to  sell  the 
lands  and  apply  the  proceeds.  The  holders 
of  the  "  special  stock "  were  authorized  to 
remove  all  officers  and  agents  connected 
with  the  management  of  the  propei  cy,  and 
also  to  remove  the  land  trustee  and  attor- 
ney in  fact  and  appoint  others;  but  until 
the  exercise  of  these  powers  the  powers  of 
the  trustee  were  vested  in  the  company. 
There  was  never  any  reasonable  expectation 
of  any  residuary  benefit  resulting  to  the 
company.  Held,  that,  although  the  legal 
title  to  the  lands  remained  in  the  company. 


the  effect  of  the  contract  was  to  transfer  the 

entire  beneficial  interest  therein  to  the 
stockholders  without  reserve,  notwithstand- 
ing the  formal  provision  for  a  resulting  in- 
terest, and  the  reservation  of  power  of 
redemption,  and  that  the  lands  were  no 
longer  exempt  from  taxation  as  part  of  the 
unconveyed  land  grant  of  the  company.  St, 
Paul  &*  S.  C.  R.  Co.  V.  Robinson,  39  Am.  A* 
Eng.  R.  Cat,  $03,  40  Minn.  360,  43  A^.  W. 
Rep.  79. 

An  instrument  by  which  a  company  con- 
veys a  part  of  its  land  grant  to  trustees,  that 
the  lands  may  be  sold  and  the  proceeds  de- 
voted to  the  satisfaction  of  bonds  issued  at 
the  same  time  and  sold  in  open  market,  in 
order  that  funds  may  be  obtained  with 
which  to  build  a  portion  of  the  railway, 
and  which  bonds  are  sold  to  many  persons 
who  at  no  time  were  interested  in  the  road, 
and  who  took  no  part  in  the  transaction 
before  investing  in  the  securities,  does  not 
amount  to  a  conveyance  of  the  lands,  within 
Minn.  Gen.  Laws  1865,  ch.  15,  when  the 
evidence  shows  that  such  was  not  the  inten- 
tion ;  and  they  are  not  taxable  under  section 
5  of  that  chapter.  Sioux  City  &*  St.  P.  R. 
Co.  V.  Robinson,  39  Am.  6r*  Eng,  R,  Cat. 
510,  41  Minn.  452,  43  N.  IV.  Rep.  326.— 
Following  St.  Paul  &  S.  C.  R.  Co.  v.  Mc- 
Dof^ald,  34  Minn.  182,  25  N.  W.  Rep.  57.— 
Di :';  INGUISHED  IN  Chippewa  County  v.  St. 
Paul,  S.  &  T.  F.  R.  Co.,  41  Am.  A  Eng. 
R.  Cas.  619,  42  Minn.  ?.gi,  44  N.  W.  Rep.  70. 

A  provision  in  a  charter  exempting  the 
"railroad"  of  a  company  from  taxation 
includes  the  rolling  stock  and  various  prop- 
erty used  in,  and  necessary  for,  operating 
the  road ;  but  it  does  not  extend  to  lands 
which  have  been  granted  by  the  United 
States  through  the  state  to  aid  the  road,  and 
which  are  hv->ld  by  the  company  for  sale. 
Mobile  &*  O.  R.  Co.  v.  Moseley,  52  Miss.  \rj. 

Unsurveycd  public  lands  acquired  by  a 
company  under  the  Acts  of  Congress  of  July 
I,  1862,  and  July  2,  1864,  are  exempted  from 
taxation  by  the  state.  State  v.  Central  Pac. 
R.  Co.,  21  Nev.  94.  25  Pac.  Rep.  442. 

The  provisions  of  the  Dak.  Sess.  Laws 
1883,  ch.  99,  imposing  upon  railroad  com- 
panies a  tax  of  a  percentage  of  their  gross 
earnings  in  lieu  of  any  and  all  other  taxes 
upon  the  railroad,  equipments,  appurte- 
nances, or  appendages,  or  other  property 
belonging  to  the  corporation,  or  upon  its 
capital  stock,  or  business  transactions,  and 
that  the  lands  of  any  railroad  com p  <ny  shall 


TAXATION,  106-168. 


90» 


become  subject  to  taxation  in  the  same 
manner  as  other  similar  property  as  soon  as 
sold,  leased,  or  contracted  to  be  sold,  ex- 
empt from  taxation  lands  granted  to  a  rail- 
road company,  although  not  held  by  it  for 
railroad  purposes.  Northtrn  Pac.  R.  Co.  v. 
Bartus,  53  Am.  &*  Eng.  Ji.  Cas.  616,  2  N, 
Dak.  310,  51  N.  IV.Htp.  386.  —  Followed 
/N  Northern  Par.  R.  Co.  v.  Barnes,  2  N. 
Dak.  395;  >'crthern  Pac.  R.  Co.  v.  Strong, 
2  N.  Dak.  395;  Northern  Pac.  R.  Co.  v. 
Brewer,  2  N.  Dak.  396 ;  Northern  Pac.  R. 
Co.  V.  Tressler,  2  N.  Dak.  397. 

105.  Leased  land.  — A  tract  of  land 
owned  by  a  company,  upon  which  it  had 
constructed  a  pier  or  wharf,  renting  the 
same  to  another  corporation,  engaged  in  the 
business  of  selling  and  shipping  coal,  and 
for  the  purposes  of  such  business,  is  not 
exempt  from  ordinary  taxation  as  property 
held  and  used  for  railway  purposes,  although 
by  the  terms  of  the  lease  the  tenant  was 
under  obligation  to  perform  certain  service 
in  its  line  of  business  for  the  railway  corpo- 
ration, and  was  also  obliged  to  furnish  a 
certain  amount  of  freight  annually  for  trans- 
portation over  its  railway.  St.  Louis  County 
V.  5/.  Paul  &*  D.  R.  Co.,  45  Minn.  510,  48 
N.  W.  Rep.  334. 

Vacant  land  outside  of  the  sixty-three 
feet  authorized  to  be  taken  by  condemna- 
tion, and  property  of  any  nature  held  by 
tenants,  and  not  at  the  time  necessary  for 
the  existence  of  the  road  or  for  effecting 
the  purposes  of  the  incorporation,  are  not 
exempt  from  taxation.  State  (New  Jersey 
R.  &*  T,  Co.,  Pros.)  V.  Collectors,  26  N.  J. 
L.  519;  affirming  2%N.J.  L.  315.— Distin- 
guished IN  United  N.  J.  R.  &  C.  Co.  v. 
Jersey  City,  53  N.  J.  L.  547. 

The  exemption  from  taxation  in  the  prose- 
cutors' charter  only  applies  to  such  estate 
or  property  of  the  company  as  is  possessed, 
occupied,  and  used  for  the  actual  and  neces- 
sary purposes  of  canal  navigation.  Lots 
of  land  leased  to  others  for  their  exclusive 
use  and  occupancy  in  discharging  and  shi|>- 
ping  coal  carried  over  the  canal  are  not 
exempt.  State  (Morris  C.  S*  B.  Co.,  Pros.) 
V.  Love,  37  N.  J.  L.  60. 

A  statute  provided  for  a  certain  tax  upon 
all  the  real  property  of  a  company  "  used  or 
owned  for  the  purposes  of  their  road."  Held, 
that  this  included  only  such  property  as  may 
be  necessary  or  convenient  for  the  legitimate 
purposes  of  the  company  under  its  charter. 
And  the  exemption  from  taxation  of  a  tract 


of  land  at  the  terminus  of  the  road  not  ex- 
ceeding ten  acres,  with  the  buildings  and 
improvements  thereon,  does  not  extend  to 
a  tract  at  the  terminus  bought  for  use  in 
connection  with  the  business  of  the  road, 
but  which  was  not  at  the  time  so  used,  but 
was  leased  to  a  private  person  for  his  own 
private  business.  State  (Delaware,  L.  &*  tV. 
R.  Co..  Pros.)  V.  Fuller.  40  A'.  /.  L.  328,  17 
Am.  Ry.  Rep.  347.— Quoting  State  (New 
Jersey  R.  &  T.  Co.,  Pros.)  v.  Hancock,  3$ 
N.J.L.S37. 

Where  ai  >  of  the  lands  or  buildings  of  a 
railroad  arc  rented  to  others,  or  used  for 
purposes  not  authorized  by  its  charter,  there 
will  be  no  exemption  from  taxation,  and 
such  rent  or  use'  may  be  ascertained,  if 
necessary,  by  reference  to  a  commissioner. 
State  (United  N.J.  R.  <S->  C.  Co.,  Pros.)  v. 
Mayor,  etc.,  oj  Jersey  City,  41  A''.  /.  L.  471. 

106.  Brauch  roads. —A  former  de- 
cision holding  that  the  main  line  of  a  rail- 
road is  exempt  from  taxation  is  not  a 
controlling  authority  as  to  the  right  to  tax 
a  branch  built  under  a  different  charter, 
when  the  causes  of  action  and  the  facts  liti- 
gated are  not  identical.  Wilmington  &*  W. 
R.  Co.  V.  Alsbrook,  53  Am.  6-  Eng.  R.  Cas. 
687, 146  (/.  S.  279, 13  Sup.  a.  Rep.  72.— Dis- 
tinguishing Wilmington  &  R.  R.  Co.  v. 
Reid,  13  Wall.  (U.  S.)  264. 

A  company  is  entitled  to  an  exemption  of 
$1000  from  taxation,  but  the  company  is 
not  entitled  to  an  exemption  upon  each  road 
purchased  or  leased,  or  upon  its  different 
branches.  The  owner  of  different  railroads 
it  no  more  entitled  to  double  exemption 
than  is  the  owner  of  several  farms.  Louis- 
ville  &»  N.  R.  Co.  v.  Bate,  17  Am.  &*  Et^. 
R.  Cas.  494,  12  Lea  (Tenn.)  573. 

167.  Subsequently  acquired  roads. 
— An  exemption  from  taxation  in  a  railroad 
charter  will  only  extend  to  roads  built  under 
that  charter,  and  not  to  lines  subsequently 
acquired  or  built.  Southwestern  R.  Co.  v. 
Wright,  116  U.  S.  231.  6  Sup.  Ct.  Rep.  375. 
108.  Buildings,  generally.  —  The 
reservoirs  created  by  the  Delaware  and  Hud- 
son canal  company  for  supplying  the  canal 
with  water  are  not  taxable  for  county  and 
state  purposes ;  nor  are  houses  and  gardens 
occupied  by  the  lock  tenders  and  collectors 
along  the  canal  and  railroad ;  nor  the  en- 
gines and  machinery  for  raising  cars  up  the 
planes,  and  the  engine  houses ;  nor  houses 
and  gardens  occupied  by  the  engineers 
attending  the  engines;  nor  the  coUector't 


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TAXATION,  109, 170. 


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and  engineer's  office  in  Honesdale;  but 
buildings  in  Honesdale  at  the  junction  of 
the  canal  and  railroad,  used  (or  receiving 
and  transshipping  goodsand  merchandise  to 
and  from  the  canal  and  railroad,  and  houses 
used  as  boarding-houses  for  workmen,  and 
horses  for  drawing  the  cars  on  the  railroad, 
and  the  barns  and  stables  for  them,  are 
liable  to  taxation  for  county  and  state  pur- 
poses. Wayn*  County  Com'rs  v.  Delaware 
&*  H.  Canal  Co.,  15  Pa.  St.  351.  —  Dis- 
tinguished IN  Pennsylvania  R.  Co.  v. 
Pittsburg,  104  Pa.  St  522.  Reviewed  in 
Citizens'  Pass.  R.  Co.  v.  Donohugh,  15 
Pliila.  (Pa.)  258. 

109.  Depots  and  station  grounds. 
—A  depot  and  grounds  are  not  exempt  from 
assessment  for  a  public  improvement  be- 
cause the  company's  right  of  way  with  the 
tracks  thereon  runs  into  such  depot.  Chi' 
cago,  R.  I.  *•  P.  R.  Co.  V.  Chicago,  139  ///. 
573,  28  A';  if.  Rep.  1108. 

The  property  of  a  company  is  not  exempt 
from  taxation ;  and  grounds  held  by  a  com- 
pany, subject  to  the  condition  that  they 
shall  be  used  for  depot  purposes,  are  subject 
to  taxation.  Burlington  6-  M.  R.  R.  Co,  v. 
Sfiearman,  12  Iowa  112.— Reviewed  in 
Ludlow  V.  Cincinnati  Southern  R.  Co.,  7 
Am.  &  Eng.  R.  Cas.  231,  78  Ky.  357. 

Mass.  Act  of  1884,  ch.  157,  §  2,  authorized 
plaintiff  company  to  take  so  much  of  cer- 
tain land  "as  it  may  deem  necessary  or 
suitable  for  station  purposes,  and  for  tracks 
and  yard  room,  to  be  used  in  connection 
therewith."  Held,  that  it  would  be  presumed 
that  the  whole  of  a  strip  of  land  taken 
under  the  statute  was  for  station  purposes, 
in  determining  whether  it  was  exempt  from 
taxation  or  not.  Norwich  6*  W.  R.  Co.  v. 
Worcester  County  Com'rs,  151  Mats.  69,  23 
A':  E.  Rep.  721. 

Where,  by  mistake  of  boundaries,  part  of 
the  depot  grounds  of  a  company  is  built 
upon  by  another,  and  is  inclosed  and  occu- 
pied for  years  as  a  distinct  lot,  not  used  in 
operating  the  railroad,  it  it  not  exempt  from 
general  taxation  on  payment  of  a  privilege 
tax  by  the  company.  Vicksburg  &*  M.  R. 
Co.  V.  Lewis,  68  Miss.  29,  10  So.  Rep.  32. 

The  charter  of  a  company  provided  that 
"all  machines,  wagons,  vehicles,  or  car- 
riages belonging  to  the  company,  with 
all  their  works  and  all  profits  which  shall 
accrue  from  the  tame,  shall  be  vested  in  the 
respective  shareholders  forever,  in  propor- 
tion to  their  respective  shares,  shall  be 


deemed  personal  estate,  and  exempt  from 
any  charge  or  tax  whatsoever."  Held,  that 
real  estate  owned  and  used  by  the  company 
for  the  purposes  of  its  business  for  depots, 
etc.,  is  embraced  in  the  provision,  and  is 
personal  estate.  All  the  property,  real  and 
personal,  is  exempt  from  taxation,  both 
state  and  municipal.  The  exemption  from 
taxation  of  the  real  estate  of  the  company 
in  the  city  of  Richmond  is  not  unconstitu- 
tional as  being  in  conflict  with  the  charter 
of  the  city,  previously  granted,  giving  to  the 
city  the  power  to  tax  real  estate  for  the  pur- 
poses stated  in  the  city  charter,  the  city 
having  ample  means  of  taxation  left  for  the 
payment  of  her  expenses  and  debts.  Rich' 
mond  V.  Richmond  &*D.R.  Co.,  21  Graft. 
{Va.)  604.— Quoting  Mayor,  etc.,  of  Balti- 
more V.  Baltimore  &  O.  R.  Co.,  6  Gill  (Md.) 
288.  Reviewing  Von  Hoffman  v.  Quincy,  4 
Wall.  (U.  S.)  535  ;  Gilman  v.  Sheboygan,  a 
Black  (U.  S.)  570.— Quoted  in  Com.  v. 
Richmond  &  P.  R.  Co.,  24  Am.  &  Eng.  R. 
Cas.  482,  81  Va.  355. 

Where  a  statute  provides  that  all  prop- 
erty "  necessarily  used  in  operating  any  rail- 
road "  shall  be  exempt  from  taxation,  lots 
adjoining  a  company's  track  in  a  city,  which 
seem  to  have  been  a  part  of  its  depot 
grounds,  but  upon  which  an  individual 
was  permitted  from  time  to  time,  without 
charge,  to  pile  salt,  mainly  for  shipment 
over  the  road  —  held,  exempt  from  taxa- 
tion. Milwaukee  &*  St.  P.  R.  Co.  v.  Mil- 
waukee, 34  Wis.  271. 

170.  Elevators,  ft«lght  houses, 
wharves,  etc.*  —  If  an  elevator  of  the 
Illinois  Central  railroad  company  is  used 
exclusively  by  it  in  receiving  grain  for  ship- 
ment, or  for  storing  it  after  shipment,  with- 
out any  additional  charge  therefor,  except 
on  neglect  of  the  owner  to  take  it  away 
within  a  reasonable  time  after  its  arrival,  it 
is  clearly  exempt  under  section  22  of  the 
charter  of  the  company.  In  rt  Sw^ert,  24 
Am.  &*  Et^g.  R.  Cas.  494.  1 19  ///.  83,  6  N.  E. 
Rep.  469.  Illinois  C.  R.  Co.  v.  People  ex  ret., 
119  ///.  137,  6  N.  E.  Rep.  4SI. 

It  appeared  that  the  company  erected  on 
its  right  of  way  in  a  city,  and  near  a  river, 
a  grain  elevator,  and  leased  the  same  to 
private  parties,  who  received  tolls  and  com- 
pensation lor  all  gram  stored  therein.    It 


*  Exemption  of  elevator  situated  som*  distance 
from  road,  see  33  An.  ft  Emo.  R.  Cas.  474, 
•Mr. 


TAXATION.  171. 


«U 


except 


was  shown  that  such  elevator  was  quite  con- 
venient and  beneficial  to  the  company  in  its 
business,  but  not  more  so  than  if  built  and 
owned  by  private  persons.  Httd,  that 
under  the  company's  charter  such  elevator 
was  not  exempt  from  taxation,  it  not  being 
devoted  exclusively  to  the  business  of  the 
company  as  a  common  carrier,  and  not 
being  essential  to  the  operation  of  its  road. 
In  rt  Swigert,  24  Am.  &*  Eng.  R.  Cas.  494, 
119  ///.  83.  6  N.  E.  Hep.  469.— Reviewing 
Illinois  C.  R.  Co.  v.  Irvin,  72  111.  452. 

Freight  houses,  elevators,  etc.,  con- 
structed and  used  solely  for  the  purpose  of 
enabling  the  company  to  perform  its  duties 
as  a  common  carrier,  are  exempt  from  tax- 
ation under  the  charter  of  the  company. 
But  property  devoted  to  a  use  not  con- 
templated by  the  charter,  as  for  the  busi- 
ness of  warehousing  for  private  gain,  or 
merchandising,  is  not  within  the  exemption. 
Jllinois  C.  R.  Co.  v.  People  ex  rel..  119  ///. 
137,  6  A':  E.  Rep.  451.— Following  Illinois 
C.  R.  Co.  V.  Irvin,  73  111.  453. 

Elevators,  wharves,  piers,  and  docks 
owned  by  the  Baltimore  and  Ohio  road, 
being  necessary  for  its  business  of  receiving 
and  storing  grain  and  freight  shipped  over 
its  road  after  the  same  had  reached  the  place 
of  destination,  and  previous  to  its  delivery 
to  the  consignee  or  owner,  are  exempt  from 
taxation ;  but,  as  a  common  carrier,  the 
company  had  no  right  V)  own  and  use  these 
structures  for  the  storage  of  grain  and 
freight  after  the  owner  or  consignee  had 
had  a  reasonable  time  to  remove  the  same. 
Slate  V.  Baltimore  &*  O.  R.  Co.,  48  Md.  49. 

A  grain  elevator  erected  upon  its  prop- 
erty by  a  union  depot  company  organized 
under  the  Union  Depot  Act  of  1881  (How. 
Mich.  St.  ch.  93),  and  used  as  a  grain 
warehouse  in  connection  with  its  general 
business  as  a  common  carrier,  is  a  necessary 
part  of  the  equipment,  and  is  not  liable  to 
taxation  under  the  general  tax  law  of  the 
state.  Detroit  Union  R.  D.  6-5.  Co.  v.  De- 
troit, 88  Mich  347,  50  A'.  W.  Rep.  303. 

Under  a  railroad  charter  exempting  from 
taxation  the  road  and  its  appurtenances, 
including  warehouses,  etc.,  an  elevator, 
though  situated  outside  the  right  of  way, 
i(  necessary  and  used  as  %  depot  or  ware- 
house, and  located  at  such  a  distance  on 
account  of  natural  disadvantages,  is  ex- 
empt, together  with  the  side  tracks,  etc., 
necessary  to  connect  it  with  the  road,  and 
the  land  on  which  both  are  constructed. 


State  V.  NatkvilU,  C.  &»  St.  L.  R.  Co.,  86 
Tenn.  438.  6  5.  W.  Rep.  880.— REFERRING 
TO  Sute  V.  Nashville,  C.  &  St.  L.  R.  Co..  I3 
Lea  (Tertn.)  583. 

Where  a  statute  exempts  property  "  neces- 
sarily used  in  operating  any  railroad,"  ware- 
houses and  sheds  belonging  to  a  company 
in  a  city,  principally  used  for  storage  of 
freight  received  from  propellers  and  con- 
signed to  the  company  for  transportation, 
or  of  freight  carried  to  the  city  by  the 
company  and  designed  for  shipment  by 
propellers,  and  the  land  on  which  they  are 
situate,  are  exempt  from  taxation,  notwith- 
standing they  are  to  some  extent  in  charge 
of  agents  or  propeller  lines,  who  store  in 
them  goods  from  propellers  consigned  to 
parties  in  the  city,  and  in  some  cases  charge 
storage  thereon.  Milwaukee  &*  St.  P.  R. 
Co.  V.  Milwaukee,  34  IVit.  271. 

171.  Hotels,  innSf  and  boardings 
houses. — A  hotel  owned  by  a  railroad  cor- 
poration, and  kept  by  its  lessee  as  a  hotel 
and  place  of  summer  resort  —  held,  not 
included  within  the  exemption  from  ordi- 
nary taxation  enjoyed  by  the  corporation  in 
respect  to  such  of  its  property  as  is  held 
and  used  for  railroad  purposes.  Hennepin 
County  V.  St.  Paul,  M.  6»  M.  R.  Co.,  41  Am. 
6*  Eng.  R.  Cas.  623,  43  Minn,  338,  44  N.  W. 
Rep.  63.— Following  Todd  County  v.  St. 
Paul,  M.  &  M.  R.  Co.,  38  Minn.  163,  36  N. 
W.  Rep.  109. 

Tenn.  Act  of  1864,  exempting  from  tax- 
ation the  capital  stock  of  a  company  "  and 
the  road,  with  fixtures  and  appurtenances." 
does  not  extend  to  a  hotel  building  erected 
on  the  company's  right  of  way,  under  a 
lease  from  the  company,  though  it  is  a  con- 
venience to  passengers,  and  a  means  of 
profit  to  the  road.  But  ticket  offices  in  the 
building  are  exempt.  Day  v.Joiner,6Baxt. 
(7VwM.)44i. 

Where  a  statute  exempts  property  "  nec- 
essarily used  in  operating  any  railroad," 
inns  and  boarding  houses  maintained  by 
railroad  companies  at  their  stations  for  the 
use  of  persons  arriving  and  departing  on 
their  trains  appear  to  be  necessary,  and 
when  employed  exclusively  for  that  purpose 
might  it  seems,  be  exempt.  Milwaukee  &* 
St.  P.  R.  Co.  V.  Crawford  County  Sup'rs,  29 
Wii.  116.  13  Am.  Ry.  Rep.  310.— Quoted 
IN  State  ex  rel.  v.  McFetridge,  64  Wis.  130. 
But  when  the  inn  is  kept  for  the  accom- 
modation of  all  persons  applying,  and  not 
merely  tor  persons  arriving  and  departing 


m 


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913 


TAXATION,  172-176. 


^1 


fin 


]:iN:e;; 

mi 


on  trains,  the  property  !•  liable  to  taxation. 
MOwauktt  &»  St.  P.  R.  Co.  v.  Crawford 
County  Sup'rs,  29  Wit.  116,  12  ^m.  Ry. 
Rtp.  210. 

In  tuch  case,  the  courts  cannot  hold  dis- 
tinct portions  of  the  property  taxable  and 
the  residue  exempt,  but  will  hold  the  whole 
to  be  taxable.  Milwauket  &*  St.  P.  R.  Co- 
y.  Crawford  County  Sup' n,  29  Wis.  116, 12 
Am,  Ry.  Ptf.  210. 

172.  Stabieis,  shops,  and  store* 
houses.  —  Under  a  contract  between  a 
municipality  and  a  street-railroad  company 
providing  that  "the  road,  rolling  and  live 
stock  of  said  company  "  should  be  exempt 
from  taxation,  stables,  shops,  houses  for 
storage  of  lumber,  and  other  like  con* 
veniences  are  not  exempted ;  and  this  con- 
struction is  not  altered  by  the  fact  that  the 
president  of  the  road  and  other  interested 
witnesses  testified  that  they  understood 
when  the  franchise  was  granted  that  it 
included  such  appurtenances  or  conven- 
iences as  the  above.  Atlanta  St.  R.  Co.  v. 
Atlanta,  66  Ga.  104. 

A  company  has  as  clear  a  right -to  con- 
tract to  house  a  car  of  another  when  at  its 
depot,  and  to  receive  payment  therefor,  as 
to  carry  the  car  over  its  road  for  pay,  and 
using  its  car  house  to  shelter  such  car  is 
not  a  use  for  purposes  outside  the  proper 
functions  of  the  company  and  subjecting 
the  house  to  taxation.  State  {Pennsylvania 
R.  Co.,  Pros.)  V.  IVetherill,  Ai  N.f.  L.  147. 

178.  Personal  property,  generally. 
— The  state  board  of  equalisation  cannot 
assess  for  taxation  any  personal  property 
owned  by  railway  companies  which  is  not 
used  in  the  direct  operation  of  the  respect- 
ive railroads,  even  though  such  property 
may  be  employed  indirectly  in  carrying  on 
the  business.  Denver  &*  R.  G.  R.  Co.  v. 
Church,  48  Am.  &»  Et^.  R.  Cas.  627,  17  Colo. 
I,  28  Pat.  Rep.  468. 

The  exemption  of  train  [tram]  railways 
from  ordinary  local  taxation  does  not  in- 
clude exemption  from  liability  to  pay  the 
tax  on  dogs.  Hendrie  v.  Kalthoff,  48  Mich. 
ya6,t»N.  IV.  Rep.  191. 

The  phrase  "  road,  with  its  appendages," 
in  a  railroad  charter  tax  provision,  does  not 
include  the  equipments,  cars,  engines,  or 
other  personal  property  of  the  company, 
but  is  applied  to  the  real  estate.  State 
Treasurer  v.  SomerviUe  &*  E.  R.  Co.,  38 
AT.  /.  L.  31.— Quoted  in  Neilson  v.  Iowa 
Easurn  R.  Co..  51  Iowa  1I4,  714.     Ri- 


viEWBD  IN  Williamson  V.  New  Jersey  South- 
ern R.  Co.,  29  N.  J.  Eq.  311. 

Assuming  that  the  personal  property  of  a 
corporation  located  outside  of  the  state  is 
in  any  event  entitled  to  exemption  from 
taxation,  a  temporary  absence  is  not  suffi- 
cient to  create  the  exemption ;  the  change 
of  location  must  be  permanent,  positive, 
and  unequivocal.  People  ex  rel.  v.  Com'rs 
of  Taxes,  64  A'.  K.  541 ;  affirmitig  5  Hun  200. 

174.  Bonds.— The  exemption  from  tax- 
ation, by  the  state  of  Pennsylvania,  of  bonds 
issued  to  and  held  by  non-residents  of  that 
state,  citizens  of  other  states,  is  not  affected 
by  the  fact  that  the  bonds  are  secured  by 
a  mortgage  executed  simultaneously  with 
them,  and  only  confers  upon  the  holder,  or 
the  party  for  whose  benefit  the  mortgage  is 
given,  a  right  to  proceed  against  the  prop- 
erty mortgaged,  upon  a  given  contingency, 
to  enforce  the  payment  of  his  demand.  This 
right  has  no  locality  independent  of  the 
party  in  whom  it  resides.  Cleveland,  P.  &» 
A.  R.  Co.  V.  Pennsylvania,  15  Wall.  {U.  S.) 
300,  4  Am.  Ry.  Rep.  368. 

Bonds  of  the  Baltimore  and  Ohio  railroad 
company,  and  of  the  Northern  Central  rail- 
way company,  not  alleged  to  be  secured  by 
mortgages  upon  property  within  the  state, 
are  not  embraced  in  the  terms  of  the 
exemption  contained  in  Md.  Act  of  1876, 
ch.  260,  §  I,  which  exempted  from  taxation 
"mortgages  upon  property  in  this  state, 
and  the  mortgage  debts  respectively  se- 
cured thereon."  Appeal  Tax  Court  v.  Gill, 
50  Afd.  377. 

The  bonds  of  an  incorporated  company 
which  by  its  charter  is  exempt  from  taxa- 
tion are  not  exempt  from  taxation  In  the 
hands  of  individual  bondholders,  creditors 
of  the  corporation,  whether  such  bond- 
holders are  also  stockholders  or  not.  State 
{Fish,  Pros.)  v.  Branin,  23  N.f.  L.  484. 

170.  Capital  stock.— A  provision  in 
a  charter  exempting  the  "capital  stock  "  of 
a  company  from  taxation  extends  to  any 
property  necessary  and  proper  for  building 
and  sustaining  the  company's  road,  but  not 
to  other  property.  Bibb  County  v.  Central 
R.  &»  B.  Co.,  40  Ga.  646.— Approved  in 
Northern  Pac.  R.  Co,  v.  Barnes,  3  N.  Dak. 
310.  Explained  in  Memphis  ft  C.  R.  Co. 
V.  Gaines,  3  Tenn.  Ch.  604. 

III.  Act  of  May  t,  1873,  entitled  "An  act 
to  provide  for  the  assessment  and  taxation 
of  bridges  across  navigable  waters  on  the 
borders  of  this  state,"  does  r  t  exempt  th« 


TAXATION,  176. 


M8 


companies  owning  such  structures  from  the 
payment  of  taxes  upon  their  capital  stoclc. 
The  sole  object  of  the  act  is  to  declare  such 
structures  real  estate,  for  the  purpose  of 
sale  for  taxes  of  the  corporation.  Quincy 
R.  Bridge  Co.  v.  Adami  County,  88  ///.  615, 
21  Am.  Ry.  Rep.  378. 

Exemption  of  the  capital  stock  of  a  cor- 
poration from  taxation  operates  as  an  ex- 
emption of  so  much  of  the  property  of  the 
corporation  as  the  corporation  is  fairly  au- 
thorized to  hold  for  the  proper  exercise  of 
its  franchises.  Anne  Arundel  County  Coin'rs 
V.  Annapolis  &* E.  R.  R.  Co.,  47  Aid.  592,  18 
Am.Ry.Rep.  359.— Approved  in  Nortliern 
Pac.  R.  Co.  V.  Barnes,  2  N.  Dak.  310. 

The  capital  stock  of  a  company  is  included 
in  the  exemption  of  "all  tlie  property  of 
every  kind  and  description,"  granted  by  the 
Acts  of  Feb.  2,  12,  and  15,  1878,  and  when 
the  conditions  are  complied  with,  it  cannot 
be  taxed  during  the  period  specified.  Santa 
Fi  County  Com'rs  v.  New  Mexico  6-  S.  P.  R. 
Co.,  3  N.  Mex.  1 16,  2  Pac.  Rep.  376.— QUOT- 
ING Mayor,  etc.,  of  Baltimore  v.  Baltimore 
&  O.  R.  Co.,  6  Gill  (Md.)  288. 

All  the  property  of  a  company  devoted  co 
such  use  is  necessarily  represented  by  its 
"  capital  stock,"  and  it  has  repeatedly  been 
held  that  where  a  statute  exempts  such 
"capital  stock  "from  taxation  tliis  exemp- 
tion includes  all  the  real  estate,  rolling 
stock,  and  other  property  actually  and  nec- 
essarily used  in  the  operation  of  such  road. 
Northern  Pac.  R.  Co.  v.  Barnes,  53  Am.  &* 
Eng.  R.  Cas.  616,  2  A'.  Dak.  310,  51  A^.  IV. 
Rep.  386. — Approving  Scotland  County  v. 
Missouri,  I.  &  N.  R.  Co.,  65  Mo.  123:  Han- 
nibal &  St.  J.  R.  Co.  V.  Shacklett,  30  Mo. 
5So;  Baltimore  v.  Baltimore  &  O.  R.  Co.,  6 
Gill  (Md.)  288;  Rome  R.  Co.z/.  Mayor,  etc., 
of  Rome,  14  Ga.  275 ;  New  Haven  v.  City 
Bank,  31  Conn.  106:  Anne  Arundel  County 
Com'rs  V.  Annapolis  &  E.  R.  R.  Co.,  47 
Md.  592 ;  Bibb  County  v.  Central  R.  &  B. 
Co.,  40  Ga.  646;  Bank  Tax  Case,  2  Wall. 
(U.  S.)  200.— Followed  in  Northern  Pac. 
R.  Co.  V.  Barnes,  2  N.  Dak.  395  ;  Northern 
Pac.  R.  Co.  V.  Strong,  3  N.  Dak.  395 ;  North- 
ern Pac.  R.  Co.  V.  Brewer,  2  N.  Dak.  396 ; 
Northern  Pac.  R.  Co.  v.  Tressler,  2  N. 
Dak.  397. 

A  railway  charter  contained  a  provision 
that  "the  capital  stock  of  said  company 
shall  be  forever  exempt  from  taxation,  and 
the  road,  with  all  its  fixtures  and  appurte- 
nances, including  workshops,  warehouMs, 
7  D.  R.  D.— 58 


and  vehicles  of  transportation,  shall  be  ex- 
empt from  taxation  for  the  period  of  twenty 
years  from  the  completion  of  the  road  and 
no  longer."  Held,  that  whatever  meaning 
may  be  given  to  the  words  "  capital  stock," 
which  is  forever  exempt  from  taxation, "  the 
road,  with  all  its  fixtures  and  appurtenances, 
including  workshops,  warehouses,  and 
vehicles  of  transportation,"  becomes  liable 
to  taxation,  like  other  similar  property, 
upon  the  expiration  of  the  limitation  of 
twenty  years.  Memphis  &*  C.  R.  Co.  v. 
Gaines,  3  Tenn.  Ch.  604. — Approving  Wil- 
mington &  R.  R.  Co.  w.  Reid.  13  Wall.  (U.  S.) 
268 ;  Vermont  C.  R.  Co.  v.  Burlington,  28  Vt. 
193;  Philadelphia,  W.&  B.  R.Co.  z/.  Bayless, 
2  Gill  (Md.)  355.  Explaining  Bibb  County 
V.  Central  R.  &  B.  Co.,  40  Ga.  646.— Quoted 
IN  Mayor,  etc.,  of  Chattanooga  v.  Nashville, 
C.  &  St.  L.  R.  Co.,  7  Lea  (Tenn.)  561. 

170.  Increased  capital.— A  company 
was  chartered  with  a  limited  capital,  with  a 
provision  that  its  capital  stoclc  should  be 
exempt  from  taxation  until  the  company 
was  able  to  pay  a  six  per  cent,  dividend.  Its 
capital  stock  was  afterwards  increased  from 
time  to  time  to  double  the  original  amount. 
It  was  still  further  increased  by  additional 
stock  called  "  preferred  stock,"  the  holders 
of  the  old  stock  to  be  entitled  to  new  by 
the  surrender  of  their  old  stock,  and  paying 
a  certain  proportion  upon  the  new.  Under 
this  authority  nearly  the  whole  of  the  old 
stock  was  surrendered  for  preferred  stock. 
Held,  that  the  original  exemption  from 
taxation  applied  to  the  increased  capital 
upon  every  authorized  increase  of  the  same, 
without  any  express  provision  to  that  effect 
in  the  statutes  authorizing  the  increase ;  and 
the  new  stock  issued  as  preferred  stock  was 
also  exempt.  State  v.  Norwich  &*  W.  R. 
Co.,  30  Conn.  290, 

In  such  case  the  provision  as  to  the  pay- 
ment of  a  six-per-cent.  dividend  was  not 
satisfied  when  the  revenue  was  sufficient  to 
pay  a  dividend  on  the  original  capital,  but 
must  be  sufficient  to  pay  a  dividend  upon 
the  entire  or  increased  capital.  Statt  v. 
Norwich  <S*  W.  R.  Co.,  30  Conn.  290. 

And  the  facr  that  the  receipts  of  the  road 
amounted  to  six  percent,  per  annum  on  the 
entire  capital  would  not  subject  the  com- 
pany to  taxation,  unless  they  were  sufficient 
to  pay  a  dividend  of  that  amount  after 
deducting  all  reasonable  apd  necessary  ex- 
penses of  the  company  for  the  year.  Slat* 
v.  Norwich  ^  IV.  R.  Co.,  ya  Cotm.  29a 


I 

» 
ti 

: 

» 


014 


TAXATION,  177. 


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177.  Stock  in  hands  of  stock- 
holders.*— A  railroad  was  chartered  with 
an  exemption  from  taxation  for  fifteen 
years,  and  thereafter  the  state  reserved  the 
right  to  tax  the  shares  of  stock  whenever 
the  annual  profits  should  exceed  eight  per 
cent.  //>/</.  that  the  state  could  not  tax 
such  shares  so  long  as  the  annual  profits 
were  less  than  eight  per  cent.  Raleigh  6-  G. 
R.  Co.  V.  Reid.  13  Wall.  (U.  S.)  269,  3  Am. 
Ry.  Rep.  199;  reversing  64  N.  Car.  155. 

A  state  statute  incorporating  a  company, 
which  provides  that  the  capital  stock  of  the 
company  shall  be  forever  exempt  from  taxa- 
tion, and  that  the  road  with  all  its  fixtures 
and  appurtenances  shall  be  exempt  from 
taxation  for  the  period  of  twenty  years  and 
no  longer,  exempts  the  road,  its  fixtures 
and  appurtenances,  from  taxation  only  for 
the  term  named  in  the  act ;  but  forever  ex- 
empts shares  in  the  capital  stock  of  the 
company,  in  the  hands  of  the  various 
holders,  from  taxation  in  the  state.  Ten- 
tussee  v.  IVhitworth,  29  Atn.  &•  Eng.  R.  Cas. 
ao5,  117  £/.  S.  129,  6  Sup.  CI.  Rep.  645.— 
FoLLOWiNO  Memphis  &  C.  R.  Co.  v.  Gaines, 
97  U.  S.  697— Approved  in  Natchez,  J.  & 
C.  R.  Co.  V.  Lambert,  70  Miss.  779. 

The  legislature  of  a  state  may  distinguish 
between  the  interest  of  a  corporate  body  in 
its  capital  or  capital  stock  and  that  of  the 
individual  shareholder  as  separate  subjects 
of  taxation  ;  so  that  one  may  be  taxed  and 
the  other  exempt,  or  both  governed  by  the 
same  rule  of  taxation  or  exemption,  at  its 
discretion.  Tennessee  v.  IVhitworih,  17 
Am.  &»  Eng.  R.  Cas.  411,  22  Fed.  Rep.  75, 
117  U.S.  129,  6  Sup.  Ct.  Rep.  645. 

When  a  company  is,  by  its  charter,  ex- 
empt from  taxation,  the  stock  of  the  com- 
pany in  the  hands  uf  the  stockholders  can- 
not be  taxed  ;  it  represents,  and  is  tiie  title 
to,  the  property  of  the  company,  and  there- 
fore is  included  in  the  exemption.  State 
(Fish,  Pros.)  v.  Branin,  23  A'.  /.  L.  484. 

The  stock  of  a  company,  when  the  com- 
pany by  its  charter  is  exempt  from  taxation, 
it  alio  exempt  from  taxation  in  the  hands 
of  stockholders.  Statt  ( Vail,  Pros.)  v.  Bent- 
Uy.  23  N.  J.  L.  532. 

Where  plaintiff  company's  charter  con- 
tains the  provision  that  the  property  of  the 
company  shall  be  vested  in  the  company  for 


*  Exemption  of  stock  from  taxation  by  charter 
precludis  taxation  In  hands  of  stockholders,  see 
note,  17  Am.  ft  Eno.  R.  Cas.  417. 


the  use  of  the  individual  stockholders,  and 
that  the  same  shall  be  personal  estate  and 
shall  be  exempt  from  any  public  charge  or 
tax,  for  a  term  of  years,  the  investment  of 
money  derived  from  the  earnings  of  the 
road  in  preferred  stock  of  another  company 
divests  it  of  the  charact^tr  of  non-taxable 
profits ;  neither  is  the  rolling  stock  of  the 
other  company  exempt  from  taxation  under 
plaintiff's  charter,  but  it  is  otherwise  as  to 
a  sinking  fund.  Raleigh  6«  G.  R.  Co.  v. 
Wake  County  Com'rs,  17  Am,  6*  Eng.  R,  Cas. 
466.  87  A^.  Car.  414. 

But  the  guaranteed  stock  of  plaintiff,  held 
under  a  guaranty  of  the  payment  of  senii« 
annual  dividends,  is  "stock,"  and  not  a 
credit  to  be  diminished  by  outstanding  in- 
debtedness under  the  revenue  act.  No  de- 
duction from  the  value  of  shares  is  allowed 
on  account  of  debts  owing  by  the  taxpayer. 
Ralegh  &*  G.  R.  Co.  v.  Wake  County  Com'rs, 
17  Am.  &*  Eng.  R.  Cas.  466,  87  A^.  Car.  414. 

Plaintiff's  charter  authorized  the  addition 
to  its  capital  by  conversion  into  stock  of 
certain  moneys.  Held,  that  the  increased 
stock  thereby  became  capital  stock  and  was 
included  in  the  above  exemption  clause. 
Stock  belonging  to  resident  shareholders 
must  be  listed  by  them  and  not  by  the  cor- 
poration, and  they  are  allowed  to  deduct 
from  the  tax  on  their  shares  a  ratable  part 
of  the  tax  paid  upon  the  corporate  property 
of  the  corporation  itself.  Raleigh  &*  G.  R. 
Co.  V.  Wake  County  Com'rs,  17  Am,  tf*  Eng. 
R.  Cas.  466,  87  A^.  Car.  414. 

Under  the  above  provision  the  tax  can  be 
levied  from  time  to  time  as  often  as  the 
profits  reach  the  limit  of  the  per  centum 
prescribed  in  the  charter ;  but  the  tax  on 
the  value  of  the  stock  is  to  be  abated  to  the 
extent  of  the  tax  on  the  corporate  property. 
Raleigh  &»  G.  R.  Co.  v.  Wake  County  Com'rs, 
17  Am.  A"  Eng,  R.  Cas.  466, 87  N.  Car,  414. 

Where  the  charter  vests  the  corporate 
property  in  the  stockholders,  and  exempts 
it  from  taxation,  the  individual  stock  is  also 
exempt.  Worth  v.  Petersburg  R,  Co.,  89  N. 
Car,  301. 

The  capital  stock  of  a  corporation  and  its 
shares  of  stock  in  the  hands  of  its  stock- 
holders are  separate  and  distinct  property 
interests,  and  separate  and  distinct  subjects 
of  taxation ;  and  the  taxation  of  both  is  not 
double  taxation,  nor  the  exemption  of  one 
necessarily  an  exemption  of  the  other. 
Memphis  v.  Union  i*  P.  Banh,  91  Totm. 
546,  19  S.  W.  R«p.  758. 


TAXATION,  178-181. 


915 


178.  Expenses  of  obtaining  loans. 

--Where  the  charter  of  a  company  provides 
lor  a  tpecific  tax  to  the  state,  among  other 
things,  upon  all  loans  made  to  the  company 
for  the  purpose  of  constructing  the  road, 
the  company  cannot  claim  exemption  from 
taxation  on  money  paid  out  for  commissions 
and  other  expenses  in  negotiating  its  bonds 
and  procuring  a  loan.  Michigan  S.  &*  N. 
/.  R.  Co.  V.  Auditor-General.  9  Mich.  448. 

Neither  can  it  claim  exemption  for  money 
which  it  borrowed,  and  afterwards  loaned 
to  others,  and  secured  by  worthless  securi- 
ties. Afich^an  S.  &*  N.  I.  R.  Co.  v.  Au' 
ditor-Gtneral,  9  Mieh.  448. 

179.  income.— A  railroad  charter  eX' 
empting  the  "  stock  "  ol  the  company  from 
taxation  exempts  also  its  "  gross  income." 
Such  income  is  but  an  accessory  of  the 
Stock,  which  is  the  principal  thing  — the 
aggregate  of  the  property  and  effects  of  the 
corporation.  State  ex  rel.  v.  Hood,  1 5  Rich. 
(So.  Car.")  177.— Quoted  in  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Loftin,  30  Ark.  693. 

180.  Rentals.— A  provision  in  a  char- 
ter that  a  company  will  pay  to  the  state  three 
per  cent,  on  its  gross  earnings  for  the  year, 
in  lieu  of  all  other  taxes,  does  not  include 
the  compensation  paid  by  it  to  another  com- 
pany for  the  right  to  run  trains  over  its  line. 
State  v.  St.  Paul,  M.  &*  M.  R.  Co.,  30  Minn. 
311.  ISA':  W.Rep.yari' 

181.  Property  necessary  to  exer- 
cise of  corporate  ftinctlons.*— A  com- 
pany whose  stock  is  by  law  exempt  from 
taxation  cannot  be  taxed  on  property  owned 
and  used  by  it  in  the  corporation  of  its  rail- 
way and  necessary  for  that  purpose.  The 
stock  is  bul  the  represenutive  of  the  prop- 
erty. Scotland  County  v.  Missouri,  I.  S*  N. 
R.  Co.,  6s  Mo.  H3.-F0LLOWINO  Hannibal 
ft  St.  J.  R.  Co.  V.  Shacklett,  30  Mo.  550.— 
Approved  in  Northern  Pac.  R.  Co.  v. 
Barnes.  2  N.  Dak.  310. 

Where  the  charter  of  a  company  enacU, 
after  reserving  certain  imposts,  that  "no 
other  tax  or  impost  shall  be  levied  or  as- 
sessed on  the  said  company,"  this  exempts 
from  taxation  all  property  held  by  it  neces- 
iiary  to  effect  the  purposes  of  its  incorpora- 
tion :  other  property  held,  being  convenient 
(though  not  necessary)  appendages  to  the 
road  and  its  business,  will  not  be  exempt 
from  taxation.    State  (Camden  6*  A.  R.  &» 

•What  property  it  necessary  to  exercise  of 
corporate  franchise  for  purposes  of  local  tax- 
ation, see  note,  17  L.  R.  A.  9a. 


T.  Co.,  Pros.)  V.  Mansfield  Com'rs,  33  N.  J. 
L.  sio.— Distinguished  in  State  (Morris 
&  E.  R.  Co.,  Pros.)  V.  Haight,  3$  N.  J.  L.  40. 
Quoted  in  Vermont  C.  R.  Co.  v.  Burling- 
ton. 28  Vt.  193.  Reconciled  in  Land  v, 
Coffman,  50  Mo.  243. 

in  applying  clauses  of  exemption  from 
taxation  to  the  property  of  companies  in 
whose  charters  they  are  contained,  the  test 
of  actual  use  by  the  company,  for  its  pur- 
poses, may  be  a  proper  test,  where  the  com- 
pany has  completed  its  road  and  appendages 
so  far  as  is  in  the  present  contemplated. 
But  where  a  company  has  not  completed  its 
road  and  appendages,  and  is  engaged  in  the 
work  of  construction,  the  test  of  actual 
work  is  inapplicable,  and  the  exemptive 
words  must  be  extended  to  property  not 
actually  used  for  other  purposes,  which  has 
been  acquired  as  the  means  of  carrying  into 
effect  the  objects  of  tlie  charter,  and  is  fairly 
within  the  plan  upon  which  the  work  is 
being  executed,  and  will  be  necessary  for 
the  business  of  the  company  when  its  con- 
templated improvements  are  completed. 
State  (Morris  &>  E.  R.  Co.,  Pros.)  v.  Haight, 
35  N.  J.  L.  40. 

What  is  necessary  for  the  uses  of  a  com- 
pany in  the  sense  in  which  that  word  has 
been  interpreted,  and  therefore  exempt  from 
taxation,  must  be  determined  by  the  court 
according  to  the  facts  of  each  particular 
case.  State  (Camden  &*  A.  R.  &•  T.  Co., 
Pros.)  V.  Woodruff,  36  N.  J.  Z.  94,  12  Am. 
Ry.  Rep.  424. 

Railroad  corporations  are  not  liable  to  be 
taxed  for  the  land,  not  exceeding  the  width 
prescribed  by  the  charter,  over  which  they 
are  authorized  to  lay  out  their  roads ;  nor 
for  buildings  erected  thereon,  if  convenient 
for  the  uses  to  which  the  road  can  be  ap- 
plied under  the  charter.  State  (Cape  May 
4-  M.  R.  Co.,  Pros.)  v.  Collector,  38  N.J.  L. 
270,  13  Am.  Ry.Rep.  47. 

The  property  belonging  to  a  company,  or 
its  represenutives,  necessarily  used  in  con- 
nection with  the  railroad,  in  executing  its 
purposes  and  objects,  to  accomplish  which 
the  company  was  chartered,  is  exempt  from 
ordinary  taxation  for  state  or  municipal 
purposes.  State  (Pennsylvania  R.  Co. ,  Pros.) 
V.  Eliaabeth,  41  A'.  /.  L.  319.— Followed 
in  State  (United  N.  J.  R.  &  C.  Co.,  Pros.) 
V.  Binninger,  i  Am.  &  Eng.  R.  Cas.  410, 43 
N.  J.  L.  $28. 

Asfetsments  against  the  United  Railroad 
and  Csnal  companies  vacated,  because  the 


916 


TAXATION.  182. 


:« 


*  ;3 


poMMtion  of  the  land  assessed  was  appro- 
priate to  the  enjoyment  of  the  company's 
franchise.  Stat*  ( Unittd  N.  /  R.  ^  C  Co.. 
Pros.)  V.  Binningtr,  i  Am.  &*  Etig.  R.  Cas. 
410, 43  N.  J.  L.  538.  —  Following  Sute 
(New  Jersey  R.  & T.  Co.,  Pros.)  v.  Hancock, 
35  N.  ).  L.  537 ;  State  (Pennsylvania  R.  Co., 
Pros.)  V.  Ehzabeth.  41  N.  J.  L.  319. 

Under  the  Pennsylvania  statutes  only 
property  necessary  for  the  construction  and 
use  of  a  railroad  is  exempt  from  taxation. 
Property  which  is  only  necessary  for  profits 
is  taxable,  such  as  property  which  only 
affords  facilities  for  carrying  on  the  business 
of  the  company.  Rtaditig  R.  Co.  v.  Btrks 
County,  6  Pa.  St.  70.  —  Distinguished  in 
Sute  (Camden  &  A.  R.  &  T.  Co.,  Pros.)  v. 
Mansfield  Com'rs.  33  N.  J.  L.  510;  State 
(Pennsylvania  R.  Co.,  Pros.)  v.  Mayor, 
etc.,  of  Jersey  City,  49  N.  J.  L.  540,  9  Atl. 
Rep.  783,  8  Cent.  Rep.  633.  Followed  in 
Pennsylvania  &  N.  Y.  C.  &  R.  Co.  v.  Van- 
dyke, 137  Pa.  St.  349.  Reviewed  in  Ham- 
ilton V.  Annapolis  &  E.  R.  R.  Co.,  i  Md. 
SS3 :  Vermont  C.  R.  Co.  v.  Burlington,  38 
Vt.  193. 

By  the  acts  authorizing  a  company,  in- 
corporated by  another  state,  to  locate  a 
part  of  its  road  within  this  commonwealth, 
it  was  required  to  pay  to  this  state  annually 
a  certain  sum  for  the  privilege,  and  also  a 
corporation  tax  on  so  much  of  its  capital 
stock  as  should  be  equal  to  the  cost  of  the 
construction  of  that  part  of  the  road  and 
its  appurtenances  as  were  within  this  state. 
Held,  that  the  machine  shops,  foundries, 
freight  and  passenger  houses  of  the  com- 
pany  which  were  used  to  carry  on  the  busi- 
ness of  the  road,  and  the  expense  of  their 
erection  charged  to  the  cost  of  construction, 
were  not  subject  to  assessment  and  taxa- 
tion for  state  and  county  purposes,  under 
Pa.  Acts  of  April  15,  1834,  and  April  39, 
1844.  AVw  York  6*  E.  R.  Co  v.  Sabin,  36 
Pa.  St.  343.— Distinguished  in  Pennsyl- 
vania &  N.  Y.  C.  &  R.  Co.  V.  Vandyke,  137 
Pa.  St.  349.  QuoTBD  IN  Cook  v.  State 
(Camden  &  B.  County  R.  Co.,  Pros.),  33  N. 
J.  L.  474.  Reconciled  in  Erie  R.  Co.  v. 
Com..  66  Pa.  St.  84. 

The  property  of  canal  and  railroad  com* 
panies,  and  other  guasi-^MWc  corporations, 
necessary  for  the  exercise  of  their  several 
franchises,  as  depou,  toll  houses,  and  water 
stations,  is  not  taxable  for  local  purposes. 
The  reason  for  this  exemption  is  that  these 
thinga  enter  into  the  very  compofitioa  of 


the  works  of  these  corporations  and  are 
essential  to  the  exercise  of  their  corporate 
functions,  and  for  this  reason  are  taxed  by 
the  state  as  included  in  the  capital  of  tlie 
corporation.  Northampton  County  v.  Easton 
Pass.  R.  Co.,  148  Pa.  St.  383,  33  Atl.  Rtp.  895. 
Wisconsin  Act  of  i860,  ch.  173,  declaring 
that  the  "  track,  right  of  way,  depot  grounds 
and  buildings,  machine  shops,  rolling  stock, 
and  all  other  property  necessarily  used  in 
operating  any  railroad  in  this  state  "  shall 
be  exempt  from  taxation,  includes  all  prop- 
erty the  use  of  which  is  requisite  for  the 
full  performance  of  the  duty  which  a  com- 
pany owes  to  the  public  as  a  common 
carrier.  Milwauktt  &*  St.  P.  R.  Co.  v. 
Milwaukee,  34  IVts.  371.— Reviewing  Mil- 
waukee &  St.  P.  R  Co.  V.  Crawford  County 
Sup'rs.  39  Wis.  116.— Quoted  in  Chicago, 
M.  &  St.  P.  R.  Co.  V.  Crawford  County 
Sup'rs,  48  Wis.  666.  Referred  to  in 
Todd  County  v.  St.  Paul,  M.  &  M.  R.  Co., 
31  Am.  &  Eng.  R.  Cas.  483,  38  Minn.  163, 
36  N.  W.  Rep.  109.  Reviewed  in  St. 
Louis,  1.  M.  &  S.  R.  Co.  v.  Loftin,  30 
Ark.  693. 

182.  Property  not  UHed  for  rail- 
way purposes.*—  A  statute  which  pro- 
vides for  a  tax  upon  the  gross  earnings  of  a 
railroad,  and  exempts  from  further  t.-ixation 
"all  other  property,  estate,  and  effects  of 
said  corporation,  held  or  used  (or,  in.  or 
about  the  construction,  equipment,  renewal, 
or  repair,  or  maintaining  or  operating  its 
railroad,  including  lands  granted  to  the 
company,"  does  not  apply  to  land  not  oc- 
cupied by  the  railroad,  but  by  private  per- 
sons with  its  consent,  though  it  js  probable 
that  such  land  would  be  needed  by  the 
railroad  in  the  future.  Ramsey  County  v. 
Chicago,  At.  &*  St.  P.  R.  Co..  33  Minn.  537, 
34  N.  W.  Rep.  313.— Followed  in  St. 
Paul  V.  St.  Paul,  M.  &  M.  R.  Co..  39  Minn. 
113,  38  N.  W.  Rep.  935.  Reviewed  in 
Todd  County  v.  St.  Paul,  M.  &  M.  R.  Co., 
31  Am.  &  Eng.  R.  Cas.  483,  38  Minn.  163,  36 
N.  W.  Rep.  109. 

A  statute  provided  that  all  the  taxes  to 
which  a  company  should  be  subjecterl  for  a 
period  of  thirty  years  should  be  applied  to 
the  payment  of  its  debts  and  liabilities,  and 
made  it  the  duty  uf  the  tax  collector  in 
every  county  in  each  year  to  give  to  the  com* 

*  Exemption  of  railroad  property  from  taxa- 
tion. Property  not  used  (or  railroad  purposes, 
see  54  Am.  ft  £nq.  R.  Cas.  996,  atstr. 


TAXATION,  183-1811. 


M7 


ind  are 


a  com- 


pany a  receipt  in  full  for  the  amount  of  said 
taxes,  upon  receiving  an  affidavit  that  the 
•mount  of  the  taxes  had  been  applied  by 
the  company  during  the  year  in  payment  of 
debts  incurred  or  money  borrowed  by  it. 
Hild,  that  this  did  Jt  include  taxes  on 
outlying  lands  not  used  in  the  construction, 
operation,  or  physical  maintenance  of  the 
road.  McCuUoch  v.  Stone,  64  Mis$.  378,  8 
S0.  Rtp.  236. 

The  exemption  from  taxation  of  a  rail- 
road, under  a  privilege  tnx.  will  not  be 
rigidly  confined  to  lands  actually  and  con- 
tinuously used  in  operating  the  road  ;  but  it 
will  not  embrace  land  that  is  not  used, 
though  it  is  in  proximity  to  a  depot  and 
may  in  future  be  needed  for  the  operation 
of  the  road.  Lewis  v.  Vicksburg  &»  M.  R, 
Co.,  67  Miis.  82,  6  So.  Hep.  773.— Distin- 
guishing Vicksb""T&  M.  R.  Co.w.  Bradley, 
66  Miss.  518. 

An  instruction  which  makes  nonuser  of  the 
land  by  the  company  at  the  time  of  the  tax 
sale  the  test  of  exemption  is  improper;  but 
if  the  same  facts  existed  the  year  before, 
when  the  land  was  assessed,  the  result  being 
rigiit,  the  error  is  immaterial.  Vicksburg 
&»  M.  R.  Co.  V.  Lewis,  68  Miss.  29,  10  So. 
Rep.  32. 

Under  Wash.  Act  of  Nov.  28,  1883  (Gross 
Earnings  Law),  all  the  property  of  railroads 
is  exempted,  whether  actually  used  in  the 
operation  of  the  roads  or  not.  Columbia 
6*  P.  S.  R.  Co.  V.  Chilberg,  6  Wash.  612,  34 
Pac.  Rep.  163. 

Where  property  is  necessarily  used  by  a 
company  in  operating  its  road,  it  is  not 
required,  in  order  to  exempt  it  from  local 
vaxation  under  Wis.  Laws  1868,  cli.  130,  §  2, 
s.ibd.  13,  to  be  used  exclusively  for  railroad 
purposes,  but  it  is  sufficient  if  that  is  clearly 
shown  to  be  its  principal  use.  Chicago,  M. 
&»  St.  P.  R.  Co.  v.  Crawford  County  Sup'rs, 
48  Wis.  666,  s  A'.  W.  Rep.  3.— Quoting 
Milwaukee  &  St.  P.  R.  Co.  v.  Milwaukee, 
14  Wis.  271. 

Thus,  where  it  appeared  that  it  was  nee- 
essary,  in  1873,  foi"  ^^^  proper  accommo- 
dation of  persons  traveling  by  a  railroad, 
that  the  company  should  maintain  an  eat- 
ing and  lodging  house  for  them  at  A., 
adjacent  to  its  road,  and  that  a  certain 
building  owned  by  the  company,  upon  its 
land  adjacent  to  its  road,  was  principally 
used  for  that  purpose,  more  than  nine  tenths 
of  its  business,  probably,  consisting  in  fur- 
nishing entertainment  to  travelers  by  and 


employes  upon  said  railroad,  such  building 
—held,  exempt  from  local  taxation ;  the 
facts  that  the  company's  tenant  (not 
charged  with  rent)  bv  whom  it  was  con- 
ducted took  the  profits  thereof,  and  that 
commercial  travelers  reaching  and  leaving 
A.  by  railroad  were  entertained  at  the  house 
for  one  or  mere  days,  while  transacting 
their  business  in  that  vicinity,  would  not 
prevent  such  exemption,  where  the  house 
was  not  kept  as  a  general  hotel  for  the 
ac«  ommodation  of  the  whole  public.  Chi- 
cago, M.  &»  St.  P.  R.  Co.  v.  Crawford 
County  Sup'rs,  48  Wis.  666,  5  A'.  W.  Rep.  3. 

183.  Property  not  necessary  or 
indlapensable.— Under  an  act  exempting 
a  railroad  from  taxation  no  property  will  be 
exempt  except  that  which  is  necessary  and 
indispensable  to  the  road.  So  a  steamboat 
owned  and  used  to  facilitate  business  will 
not  be  exempt.  Illinois  C.  R.  Co.  v.  Irvin, 
72  ///.  452.— Quoting  State  v.  Newark,  26 
N. ).  L.  520.— Followed  in  Illinois  C.  R. 
Co.  V.  People  ex  re!.,  119  III.  137.  Re- 
viewed IN  Re  Swigert,  24  Am.  &  Eng.  R. 
Cas.  494,  119  111.  83. 

184.  Property  of  iiou-resideuts.— 
Property  of  railroads  acquired  under  au« 
thority  of  Mo.  Act  of  1870,  §  2  (l.,aw3,  p.  90), 
is  not  exempt  from  taxation.  State  ex  ret. 
V.  Chicago,  B.  &*  K.  C.  R.  Co.,  89  Aio.  $23, 
145.  W.  Rep.  522. 

Mo.  Rev.  St.  §  5012,  exempting  trom  road 
tax  the  property  of  all  persons  residing 
within  the  limits  of  an  incorporated  village 
or  town,  embraces  the  property  of  non-resi- 
dents. State  ex  rel.  v.  Wabash,  St.  L.  &• 
P.  R.  Co.,  90  Mo.  166,  3  S,  W.  Rep.  275. 

3.  Particular  Railroads. 

185.  Alexandria  &  Bloomfleld  B* 

Co.  —  Mo.  Corporation  Law,  §  7  (Rev.  St. 
1855,  p.  371),  declares  that  "the  charter  of 
every  corporation  that  shall  hereafter  be 
granted  by  the  legislature  shall  be  subject 
to  alteration,  suspension,  and  repeal,  in  the 
discretion  of  the  legislature."  The  Railroad 
Law,§§  56, 57  (Rev.  St.  1855,  p. 438). declares 
that  "the  legislature  may  at  any  time  alter 
or  amend  this  act ,  but  such  alterations  or 
amendmcm  shall  not  impair  the  rights  of 
companies  previously  organized  " ;  that  in 
future  all  railroad  companies  shall  have  "all 
the  *  *  *  privileges  contained  in  this  act." 
In  1857  the  legislature  chartered  the  above 
company  free  from  taxation  -ot  a  term  of 


s 


nt 


TAXATION.  186, 187. 


:mii:'!; 


•ix  years.  Hild,  that  the  right  of  amend- 
ment reicrved  to  tha  legielature  wa«  that 
contained  in  tection  56  only,  and  that  ihe 
exemption  could  not  be  withdrawn  after  the 
company  had  organixed.  Scotland  County 
V.  Missouri.  /.  4*  N.  R.  Co..  65  Mo.  ny— 
Not  followed  in  Keokuk  &  W.  R.  Co.  v. 
Scotland  County  Court.  41  Fed.  Rep.  305. 
Reviewed  in  State  ex  rel.  v.  Keokuk  &  W. 
R.  Co.,  41  Am.  &  Eng.  R.  Cat.  694,  99  Mo. 
30,  6  L.  R.  A.  333,  13  S.  W.  Rep.  390. 

186.  Annapolis  &  Elk  Ridge  R.  Co. 
—Maryland  Act  of  1836,  ch.  398,  chartering 
the  above  company,  gave  to  the  president 
and  directors  all  the  "powers  and  privi- 
leges "  conferred  by  the  charter  of  a  certain 
other  company,  one  provision  of  which  ex- 
empted the  company  from  taxation.  Htld, 
that  this  exemption  was  not  one  of  tiie  privi- 
leges necessary  for  the  construction  and 
maintenance  of  the  company's  road.  Ann* 
Arundel  County  Com'rs  v.  Annapolis  &*  E. 
Ji.  R.  Co..  47  Md.  593,  18  Am.  Ry.  Rep.  359. 

187.  Baltimore  &  Ohio  R.  Co.— 
The  original  Maryland  act  incorporating 
the  company  provided  that  the  shares  of 
stock  were  to  be  considered  personal  estate 
and  exempt  from  any  tax  by  the  state 
assenting  to  the  law.  On  Feb.  33,  1831, 
this  statute  was  amended  so  as  to  enable 
the  company  to  construct  a  branch  road  to 
the  line  of  the  District  of  Columbia,  with 
an  amendment  that  it  should  not  be  con- 
strued to  preclude  the  legislature  from  im- 
posing reasonable  and  just  taxes.  By  Act 
of  Congress  of  March  s,  1831,  the  company 
was  authorized  to  extend  this  branch  to  the 
city  of  Washington,  subject  to  the  same 
rights  and  immunities  contained  in  its 
charter.  Htld,  that  congress  had  reference 
to  the  original  charter  of  the  company  as 
amended,  and  that  its  property  lying  in  the 
District  of  Columbia  is  subject  to  taxation 
the  same  as  the  property  of  individuals. 
Baltimort  S*  0.  R.  Co.  v.  District  of  Colum- 
bia, 3  MacArtk.  {D.  C.)  ill.  —  Following 
Mayor,  etc.,  of  Baltimore  v.  Baltimore  &  O. 
R.  Co.,  6  Gill  (Md.)  396.  Quoting  Bailey 
V,  Magwire,  33  Wall.  (U.  S.)  336.— Re- 
viewed IN  District  of  Columbia  v.  Wash- 
ington &  G.  R.  Co..  4  Am.  &  Eng.  R.  Cas. 
161.  I  Mackey  (D.  C.)  361. 

Md.  Act  of  1836,  ch.  133,  {  18.  chartering 
the  above  company,  declares  that  the  shares 
of- the  capital  stock  of  the  company  shall  be 
considered  personal  estate,  and  exempt 
from  any  tax  or  burden,  and  the  state's 


right  to  tax  the  stock,  and  the  right  of  all 
corporations  created  by  the  state  to  tax  it. 
are  excluded  by  the  compiehensive  and  uni- 
versal terms  of  the  exemption  Mayor,  ttc. 
of  Baltimort  v.  Baltimort  &*  O.  K.  Co..  6 
Gill  (Md.)  388.  —  Approved  in  Northern 
Pac.  R.  Co.  V.  Barnes.  3  N.  Dak.  310.  Dis- 
tinguished IN  People  ex  rel.  v.  Com'rs  of 
Taxes.  3  Am.  ft  Eng.  R.  Cas.  343.  83  N.  Y. 
459;  Baltimore  &  O.  R.  Co.  v.  Marshall 
County  Sup'rs.  3  W.  Va.  319.  Followed 
IN  Baltimore  A  O.  R.  Co.  v.  District 
of  Columbia.  3  MacArth.  (D.  C.)  las. 
Quoted  in  Santa  F6  County  Com'rs  v. 
New  Mexico  &  S.  P.  R.  Co..  3  N.  Mex.  1 16 ; 
Richmond  v.  Richmond  &  D.  R.  Co..  3i 
Gratt.  (Va.)  604.  Reviewed  in  State  v. 
Cumberland  &  P.  R.  Co.,  40  Md.  33 ;  State 
V.  Baltimore  &  O.  R.  Co.. 48  Md.  49. 

The  specific  property  of  the  corporation 
is  as  much  an  ingredient  in  the  shares  of  its 
stock,  and  a  component  part  of  their  value, 
as  is  any  portion  of  the  corporate  property. 
In  the  case  of  this  company  both  are  exempt 
from  taxation.  Mayor,  ttc,  of  Baltimort  v. 
Baltimort  &»  0.  R.  Co.,  6  Gill  (Md.)  388. 

The  right  to  tax  the  stock  or  the  specific 
property  of  the  company  was  not  reinvested 
in  the  state  by  Md.  Act  of  183$,  ch.  395. 
§  15.  Mayor,  ttc,  of  Baltimort  v.  Baltimort 
&*  O.  R.  Co..  6  Gill(Md.)  388. 

The  exemption  from  taxation  granted  in 
the  original  charter  of  the  company  (Md. 
Act  of  1836,  ch.  133.  §  18)  was  a  contract 
between  the  state  and  the  corporators  with- 
in the  protection  of  the  Constitution  of  the 
United  States,  and  therefore  beyond  the 
power  of  a  subsequent  legislature  to  repeal 
or  in  any  manner  impair.  State  v.  Balti' 
more  &*  O.  R.  Co.,  48  Md.  49.  —  Review- 
ing Mayor,  etc.,  of  Baltimore  v,  Baltimore 
&  O.  R.  Co..  6  Gill  (Md.)  393. 

Under  the  above  section  the  property  and 
franchises  of  the  company  were  exempt 
from  taxation ;  and.  the  franchises  being 
exempt,  the  gross  receipts  derived  from  the 
exercise  of  such  franchises  were  also  exempt. 
State  V.  Baltimore  &»  O.  R.  Co.,  48  Md.  49. 

The  gross  receipts  of  the  entire  road  from 
Baltimore  to  the  Ohio  river,  and  the  gross 
receipts  from  the  lateral  roads  built  by  the 
company,  and  from  all  buildings  and  works 
necessary  and  expedient  to  the  operation  of 
the  road,  are  exempt  from  any  tax  or  bur- 
den :  and  this.  too.  whether  said  road,  or 
roads,  buildings.and  works, were  constructed 
with  money  derived  from  the  subscription 


TAXATION,  188-101. 


919 


to  ita  opital  itoclc,  or  from  sales  of  its 
shares  of  stuck,  or  from  money  borrowed 
and  secured  by  a  mortgage,  or  from  the 
undistributed  profits  of  the  company,  or 
from  all  these  sources  combined.  Statt  v. 
Baltimort  &•  O.  R.  Co..  48  Md.  49. 

The  buildings  and  works  necessary  and 
expedient  to  the  operation  of  the  road, 
within  the  meaning  of  the  company's  char- 
ter, or  such  buildings  and  works  as  are  rea- 
sonably convenient  and  appropriate  to  the 
maintenance  and  operation  of  the  road, 
would  include  elevators,  wharves,  piers,  and 
docks  necessary  for  the  business  of  the 
company  as  a  common  carrier.  Statt  v. 
Baltimort  &*  O.  R.  Co.,  48  Md.  49. 

While  the  company  was  not  authorized 
by  its  charter  to  build  and  conduct  hotels 
for  the  accommodation  of  the  public  gener- 
ally, hotels  or  buildings  for  the  accommoda- 
tion of  passengers  over  its  line  are  necessary 
to  its  business,  and  are  therefore  within  its 
charter  exemption.  Statt  v.  Baltimort  &* 
O.  R.  Co..  48  Afd.  49. 

The  Cumberland  and  Viaduct  hotels  of 
the  company  being  used  largely  for  the  ac- 
commodation of  passengers  and  for  offices, 
the  gross  receipts  derived  therefrom  are  ex- 
empt from  taxation ;  but  it  is  otherwise  as 
to  the  Oakland  and  Deer  Park  hotels,  u.^ed 
primarily  as  summer  resorts.  Statt  v.  £al- 
timort  (**  O.  R.  Co.,  48  A/d.  49, 

Va.  Act  of  March  6,  1847,  §  j—held,  to 
mean  that  taxes  may  be  assessed  whenever 
the  net  income  of  the  entire  road  of  the 
company  shall  exceed  six  per  cent,  ptr  an- 
num on  the  capital  invested,  and  not  when 
the  net  income  on  that  portion  of  the  road 
within  the  state  of  Virginia,  and  West  Vir- 
ginia since  its  creation,  exceeds  that  amount 
on  the  capital  invested  in  said  states  of 
Virginia  and  West  Virginia.  Also  that  the 
net  income  for  the  year  1863-64  did  exceed 
six  per  cent,  on  the  capital  invested.  Bal- 
timort &*  O.  R.  Co.  V.  Marshall  County 
Sup's,  3  IV.  Va.  319.  —  Distinguishing 
Mayor,  etc.,  of  Baltimore  v.  Baltimore  &  O. 
R.  Co..  6  Gill  (Md.)  288.  Quoting  Phila- 
delphia &  W.  R.  Co.  V.  Maryland,  10  How. 
(U.  S.)  393. 

The  question  as  to  when  the  property  of 
the  company  became  taxable  under  the  pro- 
viso of  said  section  7  is  a  question  of  fact, 
to  be  determined,  if  disputed,  by  a  resort  to 
the  judicial  tribunals  of  the  state.  No  act 
or  resolution  of  the  legislature  is  required 
by  th«  terms  of  the  proviso,  nor  would  be 


conclusive  of  the  fact  and  binding  on 
the  company.  Baltimort  &*  O.  R  Co.  v. 
Marshall  County  Sup'rs,  3  W.  Va.  319. 

188.  Baltimore  &  Suaquehaniia 
R.  Co.— As  the  stock  is  the  representative 
of  the  property  of  a  company,  the  exemp- 
tion of  the  one  must  be  considered  as  the 
exemption  of  both,  unless  the  exemption  be 
made  on  the  ground  of  selection,  to  show 
which  is  intended  to  be  taxed  to  the  ex- 
clusion of  the  other.  Tax  Casts,  la  Gill 
&»J.  (Md.)  117. 

By  Md.  Act  o(  1827,  ch.  72,  |  30,  the  stock 
of  the  company  is  expressly  exempted,  and 
the  whole  object  would  be  defeated  by  tax- 
ing the  property ;  the  mortgage  executed  to 
the  state  cannot  exempt  the  property  mort- 
gaged from  taxation  in  the  hands  of  the 
company  mortgagor.  Tax  Casts,  12  Gill 
S^y.  (Md.)  117. 

189.  BoHton  &  Maine  R.  Co.— The 
flats  lying  between  the  channels  of  Charles 
and  Miller's  rivers,  outside  of  the  location 
of  the  road  of  the  Boston  and  Maine  railroad 
extension  company,  and  filled  up  by  said 
company,  pursuant  to  the  authority  given 
by  the  act  of  1845,  ch.  224,  §  1.  for  the  loca- 
tion of  engine  houses  and  wood-houses, 
and  other  purposes  for  the  use  of  its  road, 
and  used,  when  so  filled  up.  exclusively  for 
such  purposes,  are  not  exempt  from  taxa- 
tion. Boston  &*  M.  R.  Co.  v.  Cambridgt,  8 
Cush.  {Mass.)  237. 

100.  Cairo  &  Fulton  B.  Co.  — Ark. 
Act  of  Jan.  12, 1853,  incorporating  the  above 
company,  and  exempting  forever  its  capital 
stock  and  dividends  from  taxation,  does 
not  so  exempt  the  lands  granted  by  con- 
gress Feb.  9.  1853  (10  U.  S.  St.  155).  to 
the  state,  and  by  her  transferred  to  the 
company,  although  they  were  granted  to 
aid  the  road  and  used  in  lieu  of  capital,  and 
to  that  extent  relieved  the  company  ifrom 
the  necessity  of  raising  money  through 
stock  subscriptions.  St.  Louis,  I.  M.  &*  S. 
R.  Co.  V.  Lo/tin,  98  [/.  S.  559. 

101.  Camden  &  Ambcy  B.  A  T. 
Co.— The  tax  of  130,000,  or  stipulation  by 
the  company  to  pay  that  sum  to  the  state 
annually,  is  not  merely  a  tax  on  its  franchises; 
and  the  charter  exempts  not  only  those 
franchises,  but  all  other  property  of  the  com- 
pany, from  any  other  tax.  Camdtn  6»  A. 
R.  &*  T.  Co.  V.  Apptal  Com'rs.  iS  N.  /.  L. 
71.— Distinguished  in  State  (Camden  ft 
A.  R.  &  T.  Co.,  Pros.)  v.  Mansfield  Com'n, 
23  N.  J.  L.  sia 


8 


•i: 


980 


TAXATION,  102-104. 


Under  th«  charter  of  the  company,  the 
exemption  from  taxation  extends  to  all 
property  "  suitable  and  proper  (or  carrying 
into  execution  the  powers  granted  to  the 
corporate  body."  State  (Camiitn  &•  A.  H. 
a-  r.  Co.,  Pros.)  V.  Woodruff.  36  A^.  J.  L.  94, 
13  Am.  Ry.  Kffi.  417.  —  Following  State 
(New  Jersey  R.  ft  T.  Co.,  Pros.)  v.  Hancock, 
35  N.  J.  L.  $37. 

lOa.  Codar  Rapids  A  M.  R.  R. 
Co.  —  Lands  granted  to  the  company  by 
Iowa  Laws  of  i860,  ch.  37,  were  not,  prior 
to  their  certification,  taxable  as  belonging 
to  the  company,  until  the  company  had 
complied  with  sections  6  and  7  of  said  act 
in  respect  to  the  construction  of  its  road. 
That  the  road  had  been  completed  such  a 
distance  west  from  Cedar  Rapids  as  would 
earn  the  land  in  controversy  upon  the  basis 
of  1 30  sections  for  every  20  miles  would 
not  be  sufficient.  Goodrich  v.  Beaman,  37 
Iowa  563.— Reconciled  in  Cedar  Rapids 
&  M.  R.  R.Cn.  7/.  Carroll  County,  4 1  Iowa  153. 

103.  Ceiitrnl  Pacific  R.  Co. —The 
company  is  not  exempt  from  taxation  by 
the  state  of  California,  on  the  ground  that 
it  is  an  instrumentality  created  in  pursuance 
of  acts  of  congress  and  employed  by  the 
national  government  for  transportation  of 
the  mails,  armies  of  the  United  States,  mu- 
nitions of  war,  etc.  Huntington  v.  Central 
Pat.  R.  Co.,  2  Sawy.  ( U.  S.)  $03. 

Since  the  Act  of  Congress  of  July  10, 1886, 
the  surveyed  but  unpatented  lands  within 
the  grant  to  the  company  are  no  longer 
exempt  from  taxation  by  reason  of  the  gov- 
ernment lien  thereon  for  the  costs  of  survey- 
ing, etc.  The  conditions  contained  in  that 
act,  to  the  effect  that  the  lien  shall  con- 
tinue, and  that  the  United  States  may  be- 
come a  preferred  purchaser  at  any  tax  sale 
of  such  land,  controls  such  sales,  and  there 
is  no  necessity  for  a  legislative  acceptance 
by  the  states  of  the  conditions  of  the  act. 
State  v.  Central  Pac.  R.  Co..^^  Am.&'Eng;. 
A.  Cat.  275,  31  Nev  247,  30  Pac.  Rep.  686. 

Under  section  1 108.  Gen.  St.,  it  is  a  good 
answer  for  a  defendant,  when  assessed  for 
a  possessory  claim  to  land,  to  deny  such 
claim,  and  plead  that  whatever  claim  it  has 
IS  exempt  from  taxation.  State  v.  Central 
Pac.  R.  Co.,  S4  Am.  &»  Et^.  R.  Cas.  275,  21 
Nev.  247,  30  Pac.  Rep.  686. 

104.  Chesapeake  &  Oliio  R.  Co.- 
Cliesapeake  &  Olilo  Canal  Co.— The 
charter  of  the  company  does  not  exempt 
ttiat  portion  of  the  road  of  the  company 


between  Richmond  and  Covington  from  tax- 
ation. Chesapeake  &»  O.  R.  Co.  v.  Virginia, 
94  U.  S.  718,  16  Am,  Ry.  Rep.  155. 

The  Act  of  Congress  of  March  3, 1825,  de- 
dared  the  property  of  the  Chesapeake  and 
Ohio  canal  company  exempt  from  taxation. 
Congress  reserved  the  right  to  authorize  the 
extension  of  the  canal  "  into  or  throu(;h  the 
District  of  Columbia  •  *  *  upon  the  same 
terms  and  conditions,  and  with  all  the  rights, 
privileges,  and  powers  of  every  kind  that 
the  company  incorporated  by  this  act  have 
to  make  the  Chesapeake  and  Ohio  canal." 
Afterwards  the  Alexandria  canal  company 
was  incorporated  by  congress  and  author- 
ized to  construct  a  canal  from  the  terminus  of 
the  Chesapeake  and  Ohio  canal  in  George- 
town across  the  Potomac  river.  Subse- 
quently the  property  was  leased,  and  the 
lessees  conveyed  their  rights  to  complainant 
company.  Later  congress  gave  to  it  permis- 
sion to  construct  a  bridge  over  the  aque- 
duct, and  the  District  of  Columbia  assessed 
tins  bridge  for  taxation.  Held,  that  the 
rights,  privileges,  and  powers  communicated 
to  the  Alexandria  canal  company  were 
those  which  the  Chesapeake  and  Ohio  canal 
company  had  to  make  the  canal,  and  that 
these  might  be  exercised  independently  of 
any  exemption  from  taxation,  and  could  not 
be  held  to  include  any  immunity  therefrom. 
Alexandria  C,  R.  &*  B,  Co.  v.  District  of 
Columbia.  7  Am.  &*  Eng.  R.  Cas.  325,  1 
MackeyiD.  C)  217. 

Even  if  the  Alexandria  canal  company 
had  been  entitled  to  immunity  from  taxa- 
tion, that  could  not  be  claimed  by  its  lessees, 
as  the  exemption  from  taxation  was  a  priv- 
ilege of  the  company  itself,  and  did  not  pass 
to  purchasers  of  its  property  and  franchises. 
Alexandria  C,  R.  &*  B.  Co.  v.  District  of 
Columbia,  7  Am.  &*  Eng.  R.  Cas  325,  t 
Mackey  (Z>.  0217. 

The  state  has  not,  either  by  statute  or 
contract,  relinquished  her  right  to  tax  that 
portion  of  the  railroad  which  lies  between 
the  city  of  Richmond  and  the  town  of  Cov- 
ington  and  all  the  property  of  the  com- 
pany, real  and  personal,  belonging  to  that 
part  of  the  road,  and  a  fair  proportion  of 
its  rolling  stock,  and  of  the  earnings  of  the 
company  to  be  ascertained  and  apportioned 
in  such  mode  as  may  be  prescribed  by  law. 
But  she  has  relinquished  the  right  to  tax 
the  property  of  the  company  lying  west  of 
Covington  Com.  v.  Chesapeake  ^  O  R.  C0., 
37  Graft  (F<t.)  344.— QUOTING  Richmond. 


TAXATION,  105-100. 


P.  A  P.  R.  Co.  V.  Louisa  R.  Co..  13  How. 
(U.  S.)  71.  Revibwino  Thorpe  v.  Rutland 
ft  B.  R.  Co.,  37  Vt,  140.— Distinguished  in 
Chesapeake  ft  O.  R.  Co.  v.  Miller.  19  W. 
Va.  408. 

lOA.  Fltohburg  B.  Co.— A  new  loca- 
tion of  the  company,  duly  made  and  filed, 
in  conformity  with  its  actual  construction, 
under  Mass.  Act.  o(  185$,  ch.  340,  exempts 
the  land  within  its  limits  from  taxation. 
CharltstowH  v.  Middltux  County  Com'rs,  t 
Alhn  {Mast.)  199. 

106.  Oalveaton,  Harrisburg  &  8. 
A.  R.  Co.  —  The  company  is  not  exempt 
from  state  taxes.  Ca/vtston,  H.  6*  S.  A. 
Ji.  Co.  V.  Stalt,  38  Ttx.  224. 

197.  Georgia  R.  &  B.  Co.— By  reason 
of  the  exemption  given  in  the  charter  of  the 
company,  it  is  not  within  the  power  of  the 
city  council  of  Augusta  to  impose  a  tax 
upon  any  portion  of  the  stock  of  the  road. 
Aiigui/a  City  Council  v.  Gtorgia  R.  &*  B 
Co.,  36  Ga.  6$ I. 

108.  Hannibal  &  St.  JosepliR.  Co. 
—The  exemption  of  the  stock  of  r.he  above 
company  from  all  state  and  county  taxes, 
contained  in  its  original  charter,  is  modified 
by  the  acceptance  on  the  part  of  the  com- 
pany of  Missouri  Act  of  Sept.  20,  1852,  and 
the  corporate  property  of  the  company,  al- 
though representing  the  stock,  is  subject  to 
taxation  as  provided  in  section  3  of  the  act. 
Hannibal  **  St.  J,  R.  Co.  v.  Shackhtt,  30 
Mo.  550.— Approved  in  Northern  Pac.  R. 
Co.  V.  Barnes,  3  N  Dak.  310.  Distin- 
GUisHED  in  St.  Louis  Mut.  L.  Ins.  Co. 
V.  Board  of  Assessors,  56  Mo.  503,  State 
V.  Hannibal  &  St.  J.  R.  Co.,  60  Mo.  143. 
Followed  in  Livingston  County  v.  Han- 
nibal ft  St.  J.  R.  Co.,  60  Mo.  516:  Scotland 
County  V.  Missouri,  1.  ft  N.  R.  Co.,  65  Mo. 
133.  Reviewed  in  St.  Louis,  L  M.  ft  S.  R. 
Co.  V,  Loftin,  30  Ark.  693 ;  State  v.  Hanni- 
bal ft  St.  J.  R.  Co.,  37  Mo.  365;  St.  Joseph 
V.  Hannibal  *  St.  J.  R.  Co.,  39  Mo.  476. 

The  roadbed,  machinery,  and  depots  of 
the  company,  and  the  other  property  used 
by  it  in  operating  its  road,  are  to  be  consid- 
ered as  a  part  of  its  capital  stock,  and  not 
liable  to  taxation  under  Missouri  Revenue 
Laws  of  i8ss,  subjecting  to  taxation  "all 
property  owned  by  incorporated  companies 
over  and  above  their  capital  stock."  Han- 
nibal^ St,  J,  R.  Co,  V.  Shacklett,  30  Mo  550. 

The  city  of  St.  Joseph,  by  its  charter  (Mo. 
Sets.  Acts  1863-44,  p.  431)  had  authority  to 
levy  and  collect  a  tax  upon  the  real  prop- 


•rty  of  the  company  aituata  within  tht 
chartered  limits  of  the  city.  The  exemp- 
tion of  the  company,  by  its  charter,  from 
state  and  county  taxation  upon  its  stock, 
did  not  prevent  the  legislature  from  repeal- 
ing the  exemption,  or  subjecting  the  cor- 
poration to  further  taxation.  Subjecting 
the  property  of  said  company  to  taxation 
for  municipal  purposes  was  not  double  taxa- 
tion. St.  Jotiph  V.  Hannibal  b*  St.  J,  R. 
Co.,  39  Mo.  476.— Distinguishing  State  v. 
Hannibal  ft  St.  J.  R.  Co..  37  Mo.  36$.  Rb< 
VIEWING  Hannibal  ft  St.  j.  R.  Co.  v.  Shack' 
lett,  30  Mo.  560.— Distinguished  in  State 
ex  rel.  v,  Macon  County  Court,  41  Mo.  453. 
Quoted  in  Webb  v,  Lafayette  County,  67 
Mo.  353. 

A  provision  of  the  law  incorporating  the 
company  exempted  its  stock  "from  state 
and  county  taxes."  H*ld,  that  the  exemp- 
tion included  a  tax  levied  to  pay  bonds 
given  by  it  for  stock  in  a  railroad  company, 
and  this  although  the  bonds  can  only  be 
paid  out  of  the  tax  levied  for  the  special 
purpose.  State  tx  rel.  v.  Hannibal  &^  St.  J, 
R.  Co..  41  Am.  &>  Eng,  R,  Cat.  581, 101  Mo. 
136, 13  S.  W.  Rep.  505.— Reconciling  Liv- 
ingston County  V,  Hannibal  ft  St.  J.  R.  Co., 
60  Mo.  519. 

Neither  the  general  assembly  nor  a  con- 
stitutional convention  could  repeal  said  ex- 
emption without  the  consent  of  the  corn- 
puny.  State  ex  rel,  v.  Hannibal  &*  St.  J.  R. 
Co,,  41  Am,  &*  Eng,  R,  Cas.  581,  101  Mo, 
136.  13  S,  W.  Rep,  505.- Followed  in 
State  ex  rel.  v,  Hannibal  ft  St.  J.  R.  Co., 
113  Mo.  297. 

The  term  'county  taxes"  includes  road 
taxes  within  the  meaning  of  the  provision 
of  the  charter  of  the  company  exempting 
it  from  county  taxes.  State  ex  rel.  v.  Han- 
nibal &»  St.  J.  R,  Co.,  43  Am.  &*  Ei^,  R, 
Cat.  263.  1 01  Mo.  120,  13  S,  tV.  Rep.  406. 

100.  Illinois  Central  R.  Co.  —The 
provisions  in  111.  Act.  of  1851.  §  22,  incor- 
porating the  company,  exempting  it  from 
taxation,  do  not  exempt  it  from  the  pay- 
ment of  a  municipal  assessment  upon  its 
lands  within  a  municipality  in  the  state,  laid 
for  the  purpose  of  grading  and  paving  a 
street  therein.  Illinois  C.  R,  Co.  v.  Decatur, 
54  Am.  &*  E^g.  R.  Cas.  383,  147  I/.  S.  190, 
13  Sup,  Ct.  Rep.  393;  affirming  37  Am.  &* 
Eng.  R.  Cas,  39$  126  ///.  93.  18  N.  E,  Rep. 
315.  \  L.R.  A  613 

The  above  charter,  in  so  far  as  it  declares 
certain  exemptions  of  the  property  ol  the 


<t 
I 

ii 


933 


TAXATION,  20O,  201. 


It.' 


company  from  taxation,  it  a  contract  be- 
tween the  state  and  the  company,  which 
cannot  be  changed  or  annulled  without  the 
content  of  both  contracting  parties.  Ntu- 
stadt  V.  niinoii  C.  R.  Co..  31  ///.  484.  —  Ap- 
proved IN  Chicago  V.  Sheldon.  9  Wall. 
(U.  S.)  so.  Quoted  in  Illinois  C.  R.  Co. 
V,  lr«:n.  72  111.  452.  Reviewed  in  Winona 
ft  St.  P.  R.  Co.  V.  Watertown,  1  S.  Dak.  46. 

/>nd  no  city  or  town  can  impose  a  tax  for 
muitir^pal  purpotes  on  the  property  of  the 
cr-npany  which  may  be  within  its  limits. 
N*ustadt  V.  Illinois  C.  X.  Co.,  31  ///.  484. 

The  taxes  'rom  which  the  legislature  in- 
tended to  relieve  the  company,  by  the  act 
incorporating  it,  §  22,  are  only  such  taxes 
at  it,  as  a  railroad  corporation,  would  be 
otherwise  liable  to  pay  upon  its  property, 
acquired  in  the  prosecution  of  its  business 
in  constructing  and  operating  the  lines  of 
road  authorized  by  said  act  to  be  constructed 
and  operated.  Illinois  C.  R.  Co.  v.  Irvin,  72 
///.  452.— Quoting  Neustadt  v.  Illinois  C. 
R.  Co.,  31  111.  484- 

The  charter  of  the  company,  §  22,  pro- 
viding that  lands  selected  under  the  Act  of 
Congress  approved  September  20,  1850, 
granting  lands  to  certain  states  named,  in 
aid  of  a  railroad  from  Chicago  to  Mobile, 
should  be  "exempt  from  all  taxation 
under  the  laws  of  this  state  until  sold 
and  conveyed  by  said  corporation,"  is  con- 
stitutional, and  is  a  contract  between  the 
company  and  the  statft  which  the  legis- 
lature cannot  disregard  or  impair.  Illinois 
C.  R.  Co.  v.  Goodwin,  .54  ///.  262. 

Section  22  of  the  charter  of  the  company, 
after  providing  fcr  a  limited  state  tax  upon 
its  stock,  property,  and  assets,  declared  that 
"■aid  cor^joration  is  hereby  exempted  from 
all  taxation  of  every  kind,  except  as  herein 
provided  for."  Held,  that  this  broad  lan- 
guage should  not  be  constr.ed  alone,  but 
considered  with  reference  to  and  in  con- 
nection with  the  objects  and  purpotes  of 
the  whole  act.  In  re  Swigert,  24  Am,  5* 
E$^.  R.  Cas,  494,  119  ///.  83,  6  A'.  E,  Rep, 
469.— Reviewed  in  Todd  County  v.  St. 
Taul.  M.  ft  M.  R.  Co..  31  Am.  ft  Eng.  R. 
Cat.  482,  38  Minn.  163,  36  N.  W.  Rep.  109. 

The  property  of  the  company  which  is 
exempted  from  taxation  by  section  22  of  its 
charter  is  such  at  has  been  acquired  in  the 
prosecution  of  its  business  in  ronstructing 
and  operating  its  road  as  euti-  jrized  by  its 
charter.  Illinois  C.  R.  Co.  v.  People  tx  rel., 
119  ///.  i}7, 6  A'^.  E.  Rep.  4$!. 


The  provision  in  the  charter  of  the  com- 
pany exempting  it  from  all  taxation  of  every 
kind,  except  at  therein  provided,  has  no  ap- 
plication to  special  asseh.>ments  or  special 
taxation  of  contiguous  property  for  local 
improvements.  As  affecting  this  question 
there  is  no  difference  between  a  special  as- 
sessment and  special  taxation  of  contiguous 
property,  neither  being  included  within  the 
meaning  of  the  general  word  "taxation." 
Illinois  C.  R.  Co.  v.  Decatur,  37  Am.  &* 
Eng.  R.  Cas.  395,  126  ///.  92,  i  L.  R.  A. 
13,  18  N.  E.  Rep.  315 ;  affirmed  in  54  Am. 
&*  Eng.  R.  Cas.  282,  147  U.  S.  190,  13  Sup. 
Ct.  Rep,  293.— Quoting  Illinois  ft  M.  Canal 
V.  Chicago,  12  III.  403;  Mix  v.  Ross,  57 
III.  121;  White  V.  People  ex  rel..  94  111. 
607 ;  Craw  v.  Tolono,  96  III.  255.  Re- 
viewing Sterling  T/.  Gait.  117  III.  11.— Fol- 
lowed IN  Illinois  C.  R.  Co.  v.  Mattoon, 
141  III.  yi.— Illinois  C.  R.  Co.  v.  Mattoon, 
141  ///.  32.  30  A^.  E.  Rep.  773.— Following 
Illinois  C.  R.  Co.  v.  Decatur,  126  III.  92. 

200.  International  &  G.  N.  B.  Co. 
— Money  earned  by  the  company  after  its 
consolidation  with  the  H.  &  G.  N.  R.  Co. 
w%s  deposited  in  bank,  and  assessed  for 
taxes,  and  levy  made  to  enforce  the  collec- 
tion of  the  taxes  thus  assessed.  The  re- 
ceiver having  enjoined,  and  in  his  petition 
alleged  that  all  the  money  (for  the  taxei 
assessed  against  which  the  levy  was  n\ade) 
was  earned  by  the  company,  and  not  by 
virtue  of  the  charter  of  the  G.  N.  R.  or 
the  H.  ft  G.  N.  R.  Co.  — held,  that  such 
money  is  not  exempted  from  taxation  under 
the  Compromise  Act  of  March  10,  1875, 
which  by  its  terms  specified  the  exemptions 
from  taxation  granted  to  the  consolidated 
company.  Campbell  v.  Wiggins,  2  Tex. 
Civ.  App.  I,  20  5.  W.  Rep.  730. 

201.  International  B.  Co.  — Texas 
Act  of  March  10,  1875,  does  not  exempt 
from  taxation  any  property  not  exclusively 
acquired  by  virtue  of  the  charter  of  the 
company.  Money  deposited  in  a  bank  by 
the  receiver,  not  being  shown  to  have  been 
acquired  exclusively  under  the  charter  of 
the  company,  is  not  exempt  from  taxation 
under  said  act.  Campbell  v.  Wiggins,  85 
Tex.  424,  21  .S".  W,  Rep.  599. 

The  exemption  of  the  consolidated  road 
and  its  tuccf  stort,  and  "  itt  capital  stock, 
rights,  franc'iises,  etc.."  does  not  give  any 
greater  scope  to  the  exemption  than  at  to 
the  property  ei^umerated  as  exempt,  for  if 
luch  were  the  purpote,  it  would  be  useless 


TAXATION,  aoa-207. 


M8 


to  enumerate  the  property  that  was  tx- 
empted.  In  order  to  leave  no  doubt  as  to 
what  property  should  be  exempted,  the 
law,  after  expressing  na  niainly  as  it  could 
that  it  was  to  be  only  such  property  as  the 
new  company  was  entitled  to  by  reason  of 
its  acquisition  of  the  charier,  rights,  and 
privileges  of  the  company,  expressly  pro- 
vides that  the  exemption  should  not  apply 
to  the  lands  of  the  H.  &  G.  N.  R.  Co., 
or  to  the  franchise,  roadbed,  rolling  stock, 
or  any  property  acquired  or  to  be  acquired 
by  virtue  of  the  charter  of  that  company. 
CampbtUv.  IV^gins,  2  Tex.  Civ.  App.  i,  30 
S.  IV.  Rtp.  730.— Quoting  International  ft 
G.  N.  R.  Co.  V.  Anderson  County,  59  Tex.  661. 

aoa.  Kuox  &  Llucolu  B.  Co.- The 
company  is  exempt  from  taxes  other  than 
as  specified  in  its  charter.  State  v.  Knox 
Cf  L.  R.  Co.,  78  Me.  92,  2  Atl.  Rep.  846. 

a03.  Knozville  &  Kentucky  B. 
Co. — By  its  charter,  granted  Feb.  25,  1856, 
the  above  company  was  granted  exemption 
from  taxation  until  its  stock  should  pay  a 
dividend  equal  to  the  legal  rate  of  interest. 
Held,  that  the  legislature  had  power,  under 
the  Tennessee  Constitution  of  1834,  then 
in  force,  to  grant  the  exemption,  and  that 
the  exemption  existed  in  favor  of  a  com- 
pany  organized  by  individuals  who  had 
purchased  the  road  at  judicial  sale  under 
proceedings  instituted  by  the  state  toenfot^t 
its  lien  for  interest  on  bonds.  Knoxvilh  '. 
O.  R.  Co.  V.  Hifks,  9  Baxt.  (Tenn.)  442.— 
Explained  in  East  Tenn..  V.  &  G.  R.  Co. 
V.  Hamblen  County,  102  U.  S.  273.  Re- 
viewed IN  State  V.  Nashville,  C.  &  St.  L. 
R.  Co.,  12  Lea  (Tenn.)  583. 

a04.  Mavon  &  Western  B.  Co.— 
Ga.  Act  of  December  29.  1869,  providing  that 
the  stock  of  the  company  shall  thereafter 
pay  the  same  annual  tax  to  the  state  as  the 
other  railroad  companies  of  the  state,  does 
not  confer  on  the  company  an  exemption 
of  its  property  within  the  city  of  Macon 
from  liability  to  be  taxed  by  the  city  author- 
ities as  it  was  beCore  the  passage  of  said  act. 
Afaeon  City  Council  v.  Central  R.  &*  B.  Co., 
50  Ga,  620. 

205.  Memphis  &  Little  Bock  B. 
Co.— The  provisions  of  the  charter  of  the 
company,  exempting  its  property  from  taxa- 
tion, could  not  be  repealed  by  r  subsequent 
legislature  or  constitutional  convention. 
Oliver  v.  Memphis  &*  L.  R.  R.  Co.,  30  Ark. 
138.— Followed  in  Memphis  &  L.  R.  R. 
Co.  V.  Berry.  41  Ark.  436. 


aoe.  Memphis  Sc  Vleksburr  B.  Co. 

—  The  company  formed,  by  consolidation 
under  legislative  act  (Miss.  Laws  1882, 
p.  101 1),  of  the  Memphis  &  Vicksburg  R.  Co. 
and  the  M.  V.  &  S.  I.  R.  Co.  is  entitled  to 
the  exemption  from  taxation  secured  by  the 
Act  of  July  20,  1870, 1  21,  incorporating  the 
Mobile  &  Northwestern  R.  Co.  Louisville, 
N.  O.  *•  T.  R.  Co.  V.  Taylor,  (A  Miss.  361, 
8  So.  Rep.  675.— Reviewing  McCulloch  v. 
Stone,  64  Miss.  378. 

The  exemption  from  taxation  secured  by 
charter  to  said  company  extends  to  a  short 
track  or  spur  and  steam  digger  used  in 
reaching  and  getting  gravel  for  the  purpose 
of  repairing  its  roadbed,  although  the  track 
and  gravel  pit  are  on  land  not  owned  by  it. 
and  the  track  runs  out  from  the  line  of  an- 
other railroad.  Louisville,  N.  0.  &*  T.  R. 
Co.  v.  Taylor,  68  Miss.  361,  8  So.  Rep.  675. 

207.  Minnesota  &  Pacific  B.  Co.— 
The  exemption  from  taxation,  in  section  18 
of  the  charter  of  the  company,  of  the  iands 
granted  by  the  United  States  in  aid  of  its 
road  was  not  repugnant  to  section  6  of  the 
act  of  congress  organizing  the  territory  of 
Minnesota,  and  it  was  binding  upon  the 
future  state.  This  exemption  passed  to  the 
state  upon  the  foreclosure  of  the  mortgage, 
and  the  forfeiture,  as  a  right  appendant  to 
the  lands,  was  held  by  the  state  without 
extinguishment,  and  by  Minn.  Act  of  March 
10.  1863,  passed  with  the  lands  transferred 
to  the  persons  in  the  act  mentioned,  and 
vested  in  the  corporation  organized  by 
them,  the  St.  Paul  and  Pacific  railroad  com- 
pany, and  upon  the  transfer  by  that  company 
and  Hie  organization  of  the  first  division  of 
the  St.  Paul  and  Pacific  railroad  company 
passed  to  and  vested  in  the  latter  company, 
so  far  as  related  to  the  lands  applicable  to 
the  portions  of  the  lines  of  road  so  trans- 
ferred. First  Div.  St.  P.  5*  P.  R.  Co.  v. 
Parcher,  14  Minn.  297  (Gil.  234).  —  Ap- 
proved in  Winona  &St.  P.  R.Co.  v.  Deuel 
County,  7  Am.  &  Eng.  R.  Cas.  348,  3  Dak. 
I.  Followed  in  Stevens  County  v.  St. 
Paul,  M.  &  M.  R.  Co.,  29  Am.  &  Eng.  R. 
Cas.  235,  36  Minn.  467,  31  N.  W.  Rep.  942; 
State  V.  Winona  &  St.  P.  R.  Co.,  21 
Minn.  315. 

The  exemption  from  ordinary  taxation 
originally  created  in  favor  of  the  above 
company  passed,  with  the  lands  to  which  it 
was  appendant,  to  the  St.  Paul  and  Pacir«: 
railroad  company,  and  to  the  first  division 
of  that  company.     Stevens  County  v.  Si, 


TAXATION,  208-211. 


1' 


s<; 


8 


if, 

iff    •»■•♦   ■  "". 
■  ••»••• 

in 

Si  ^,1 
:si 


I 


til     : 


R'       I 


Pant,  M.  6*  M.  R.  C:.  S9  Am.  &•  Eng.  R. 

Cm.  32$.  36  Minn.  467,  31  A^.  W.  Ftp.  943. 
—Following  First  Div.  St.  P.  &  P.  R. 
Co.  V.  Parcher,  14  Minn.  397 ;  State  v. 
Wii.ona  ft  St.  P.  R.  Co.,  21  Minn.  315; 
Minnesota  C.  R.  Co.  v.  Melvin.  21  Minn. 
339 ;  Chicago.  M.  A  St.  P.  R.  Co.  v.  Pfaen- 
der,  23  Minn.  217;  St.  Paul  v.  St.  Paul  & 
S.  C.  R.  Co.,  23  Minn.  469;  Nobles  County 
V.  Sioux  City&  St.  P.  R.  Co.,  36  Minn.  294, 
3  N.  W.  Rep.  701. 

Minnesota  Act  of  March  4,  186$,  relating 
to  taxation  of  the  company,  was  not  repealed 
by  the  General  Tax  Law  of  1878.  Stevens 
County  V.  St.  Paul.  M.  <S-  M.  R.  Co.,  29  Am. 
&*  Eng.  R.  Cas.  235,  36  JUinn,  467,  31  A'^. 
IV.  Rep.  942. 

208.  MiHsoiirl  Pacific  B.  Co. — 
There  is  no  legislative  exemption  of  the 
company  from  taxation  by  the  state  under 
Mo.  Act  of  Dec.  2$,  1852,  §  12.  Paul  v. 
Missouri Pac.  R.  Co.,  3  DM  (U.  S.)  25. 

The  specific  exemption  from  taxation 
claimed  by  the  company  and  by  the  Atlan- 
tic and  Pacific  railroad  under  Mo.  Act  of 
Dec.  25,  1852,  §  12.  is  not  well  founded. 
Partnley  v.  St.  Louis,  I.  M.  4*  S.  R.  Co.,  3 
DiU.(U.  S.)  25. 

The  company  is  not  exempt  from  the  tax 
of  ten  or  fifteen  per  cent,  imposed  upon  it 
by  the  ordinance  of  April  8, 1865  (Mo.  Gen. 
St.  1865,  p.  $2) ;  nor  does  the  act  of  Feb.  10, 
1864  (Sess.  Acts  1863-64,  p.  JO),  amount  to 
such  a  contract  as  limits  the  right  of  the 
state  to  impose  the  tax.  Pacific  R.  Co.  v. 
Maguire,  \\  Mo.  142.— Following  North 
Mn.  R.  Co.  V.  Ma^ruire,  49  Mo.  490. 

aOO.  Noltile  &  N.  W.  K.  Cu.-Miss. 
Act  of  July  20,  1870.  %  21  (Ljiws,  p.  25$), 
incorporating  the  company  and  providing 
that  all  taxes  to  which  it  might  be  subject 
for  thirty  years  should  be  applied  to  pay- 
ment for  constructing  the  road  or  debts  in- 
curred therefor,  unless  its  annual  net  earn- 
ings should  ex<  <*cd  eight  per  cent.,  and  that 
the  aflfidiiv  it  of  the  president  01  cashier  that 
such  application  had  been  made  should  be 
acceptc(l  by  tax  collectors  in  lieu  of  money 
for  such  taxes,  was,  in  effect,  an  exemption 
from  taxation  upon  the  conditions  named, 
and  this  exemption  the  legislature  had  the 
power  to  confer,  but  not  to  make  irrepeala- 
ble  Natchez,].  &*  C.  R.  Co.  v.  Lambert,  70 
Miss.  779,  13  £0.  Hep.  33.  —  Appkuvino 
Tennessee  v.  Whitworth,  117  U.  S.  139. 
DiSAPPKOViNG  Maine  C.  R.  Co.  v.  Maine, 

96  U.  s.  499. 


210.  Mobile  &  Spring  HUI  B.  Co. 

—Under  Ala.  Act  of  Feb.  33,  i860,  incor- 
porating the  company  (Sess.  Acts  1859-60. 
p.  265),  while  it  is  declared  that,  in  consid- 
eration of  the  privilege  thereby  granted, 
"  the  property  of  the  company,  and  capital 
actually  paid  in,  shall  at  all  times  be  liable 
to  the  same  rates  of  taxation  as  the  prop* 
erty  of  individuals,  and  shall  be  taxed  in  no 
other  way,"  the  corporate  authorities  of  the 
city  of  Mobile  are  authorized  and  empow- 
ered "  to  impose  an  annual  taxation  of  one 
dollar  on  every  one  hundred  dollars  of  the 
gross  earnings  of  said  company,  which  said 
tax,"  it  is  declared,  "  shall  be  in  full  and  in 
lieu  of  all  taxation  by  said  city  on  such 
railway,  its  rolling  stock,  equipments,  and 
appendages."  Held,  that  these  provision? 
indicate  a  clear  legislative  intent  to  exempt 
the  corporation,  to  the  extent  specified,  from 
all  other  municipal  taxation  than  that  ex- 
pressly authorized.  Mobile  &-  S.  H.  R.  Co. 
V.  A'ennerfy,  74  Ala.  566. 

all.  Morris  &  Khhcx  It.  Co.  —  The 
charter  of  the  company  provides  that  as 
soon  as  the  net  proceeds  of  said  railroad 
shall  amount  to  seven  per  cent,  on  its  cost 
the  said  corporation  shall  pay  to  the  stat<:  a 
tax  of  one  half  of  one  per  cent,  on  the  cort 
of  said  road ;  provided,  that  no  other  tax 
or  impost  shall  be.  levied  or  assessed  on  said 
company.  Held,  that  tlii:  exemption  under 
the  word  "  provided  "  was  a  positive  enact- 
ment exempting  the  company  from  all  other 
tax,  and  not  a  condition  on  which  the  tax 
of  one  half  of  one  per  cent,  was  payable ; 
that  the  company  was  exempted  from  all 
other  tax,  as  well  before  the  tax  of  one  half 
per  cent,  was  payable  as  afterwards;  that 
this  provision,  though  a  power  of  alterniion 
and  repeal  was  reserved  in  the  charter,  was 
not  afiiected  by  a  subsequent  general  tax  act, 
declaring  all  lands  liable  to  taxation,  and 
repealing  all  acts,  and  parts  of  acts,  incon- 
sistent with  its  provisions.  The  provisions 
of  a  charter  cannot  be  altered  or  repealed, 
except  by  express  words.  State  (Morris  &* 
K.  R.  Co.,  Pros.)  V.  Minton,  23  N.  J.  L.  539. 
—Reconciled  in  State  (Morris  &  E.  R. 
Co..  Pros.)  V.  Com'rs  of  R.  Taxation,  38  N. 
J.  L.  472.  Reviewkd  in  State  Treasurer  v. 
Somerville  A  E.  R.  Co.,  28  N.  J.  I«  ai. 

Section  3  of  the  New  Jersey  supplement 
to  the  charter  of  the  company,  approved 
March  23,  1865,  enacting  that  the  tax  of  one 
half  of  one  per  rent,  provided  by  its  orig- 
inal act  of  incorporation  to  be  paid  to  th« 


TAXATION,  219-215. 


MS 


Mate  whenever  the  net  earnings  of  the  com- 
pany amounted  to  seven  per  cerit.  upon  the 
cost  of  the  road  should  be  in  liei'  and  satis- 
faction of  all  other  taxation  or  imposition 
whatsoever,  and  the  acceptance  of  it  by  the 
company,  constituted  a  contract  on  the  sub- 
ject of  taxation  which  could  not  be  im- 
paired by  any  subsequent  legislation.  StaU 
Board  of  Assessors  v.  Morris  &*  E.  R.  Co., 
49  /V./.  L-  193.  7  Atl.  litp.  826. 

N.  J.  Act  of  1865,  by  which  a  contract 
was  made  with  the  company  that  the  state 
would  accept  from  it  a  percentage  on  the 
cost  of  the  road  in  lieu  and  satisfaction  of 
all  other  taxation,  applies  as  well  to  fran- 
chises and  property  acquired  after  the  act 
as  to  those  previously  granted,  and  the 
operation  of  that  act  is  not  controlled  or 
qualified  by  the  fact  that  the  supplements 
to  the  charter  after  the  date  of  that  act  are 
rcpealable.  State  Hoard  of  Assessors  v.  Mor- 
ris  &*  E.  a:  Co.,  49  N.f.  L.  193,  7  Atl.  Rep. 
826.  —  Not  followino  State  (Morris  &  E. 
R.  Co.,  Pros.)  V.  Com'r  of  R.  Taxation,  37 
N.  J.  L.  228. 

212.  Na^Uiville  &  Decutiir  R.  €0. 
— Tenn.  Act  of  April  19,  1866,  §  6,  declaring 
that  the  company  "  shall  for  it!>  government 
be  entitled  io<  all  the  rights  and  privileges, 
and  subject  to  all  the  restrictions  and  liabil- 
ities, conferred  and  imposed  upon  the  Nash- 
ville and  Chattanooga  railroad  company," 
confers  upon  the  former  company  the  priv- 
ilege of  exemption  from  taxation,  as  to  its 
capital  stock  and  property,  enjoyed  by  \\w 
latter  company,  under  the  provisions  of  its 
charter,  and  the  Act  of  March  i,  1869,  tax- 
ing the  shares  uf  stock  owned  by  individual 
shareholders,  in  the  company,  impairs  the 
obligation  of  the  contract  and  is  void.  Ten- 
nessee V.  If'/u'twort/i,  17  Am.  &*  Eng.  R.  Cas. 
417,  22  Fed.  h'gp.  81,  117  U.  S.  139,6  Sup. 
Ct.  R*p.  649.  —  Following  Tennessee  v. 
Whitworth,  22  Fed.  Rep.  75. 

21.1.  Nnshville,  V.  &  St.  L.  R.  Co. 
— The  company  having  succeeded  to  all  the 
rights  and  franchises  of  the  Nashville  and 
Chattarioopa  railway  company  and  the  Nash- 
ville and  Northwestern  railway  company, 
the  shareholders  of  the  new  company  are  . 
entitled  to  exemption  from  taxation  under 
the  provisions  in  the  new  charters  of  the  old 
companies  that  "  the  capital  stock  *  *  * 
shall  be  forever  exempt  from  taxation  " ;  and 
Tenn.  Act  of  March  i,  1869,  taxing  such 
shares,  violates  the  obligation  of  a  contract 
•nJ  is  void.     Tenneseee  v.    Whitworth,  17 


Am.  &*  Etif,  R.  Cas.  411.  33  Ftd.  Rep.  7$; 

affirmed  in  117  U.S.  12%  6  Sup.  Ct.  Rep.  64$. 

214.  Natchez,  J.  &  C.  R.  Co.  —  By 

Miss.  Acts  of  Aug.  8,  1870  (Laws,  p.  327), 
and  March  5,  1878  (Laws,  p.  233).  the  im- 
munity from  taxation  conferred  was  ex- 
tended to  and  confir  med  in  the  above  com- 
pany ;  and  while  it  was  r<;voked  by  the 
Code  oi  1880,  it  was  restored  by  the  Act  of 
March  12,  1884  (Laws,  p.  29),  and  by  the 
Revenue  Act  of  1890  (L,aws,  p.  6)  this  ex- 
emption was  again  recognized.  Natchez,  f. 
&*  C.  R.  Co.  v.  Lambert,  70  Miss.  779,  13  So. 
R^p.  33. 

21  A.  New  Haven  &  Northampton 
Co.  —  A  canal  company  was  chartered  in 
1823,  with  a  provision  exempting  the  stock 
and  income  of  the  company  forever  from 
Uixation.  In  1836  the  above  company  was 
incorporated  and  empowered  to  take  a  con- 
veyance of  the  property  of  the  canal  com- 
pany, with  all  its  "  franchises,  rights,  powers, 
privileges,  and  immunities,"  and  to  "  hold 
and  enjoy  the  same  in  as  full  and  ample  a 
manner,  to  all  intents  and  purposes,  as  the 
same  had  been  held  and  enjoyed  by  said 
corporation."  In  1846  the  charter  of  the 
compp.  ly  was  amended  so  as  to  empower  it 
to  cor<struct  and  operate  a  railroad  along 
the  line  of  the  canal,  and  to  add  to  its  cap- 
ital stock,  which  was  accepted  by  the  com- 
pany, additional  capital  raised,  and  the  rail- 
road built.  In  1864  the  legislatu^-e  passed  a 
general  statute  providing  for  the  taxation 
of  corpor'itions.  Held,  that  the  tax  laid  by 
the  statute  was  a  tax  upon  the  property,  and 
not  upon  the  franchises,  of  railroad  compa- 
nies ;  and  the  above  company,  in  taking  all 
the  rights  and  immunities  of  the  canal  com- 
pany, took  the  same  exemption  of  its  cap- 
ital from  taxation  which  the  canal  company 
enjoyed.  Nichols  v.  New  Haven  &»  N.  Co., 
42  Conn.  103.  —  Criticising  Coiie  v.  So- 
ciety for  Savings,  32  Conn.  173;  Coite  v. 
Connecticut  Mut.  L.  Ins.  Co.,  36  Conn.  512. 
Disapproving  Minot  v.  Philadelphia.  W. 
&  B.  R.  Co.,  18  Wall.  (U.S.)  206.  Quoting 
People  ex  rel.  v.  Com'rs  of  Taxes,  23  N.  Y. 
220 :  Bank  Tax  Case,  2  Wall.  (U.  S.)  200. 
Reviewing  People  v.  Com'rs  of  Taxes,  3 
Black  (U.  S.)  620. 

When  the  capital  stock  of  the  company 
was  increased  the  whole  capital  did  nut  be- 
come taxable  by  virtue  of  a  provision  in  the 
amendment  that  "  the  capital  stock  hereby 
created  shall  be  assessed  and  taxed."  Only 
the  inct  teased  capital  was  liable  to  taxa- 


I 


926 


TAXATION,  216-218. 


i>»*#i 


i 


tion.    Nichoh  v.  New  Havtn  &*  N.  Co.,  43 
CmH.  103. 

The  Act  of  1864,  which  was  a  part  o' 
a  general  statute  relating  to  taxation,  in 
express  terms  exempted  "  the  stock  and 
property  of  all  incorporated  companies 
wliich  by  their  charters  are  expressly  ex- 
cmpt  from  taxation."  Held,  that  this  was 
not  to  be  regarded  as  repealing  the  exemp- 
tion of  the  original  stock  of  the  canal  com- 
pany ;  neither  did  the  change  from  a  canal 
to  a  railroad  company  affect  the  exemp- 
tion. Nichoh  V.  New  Havtn  &*  N.  Co.,  43 
Conn,  103. 

216.  New  Jersey  B.  &  T.  Co.— 
The  exempting  clause  in  the  charter  of  the 
company  does  not  relieve  from  taxation 
every  species  of  property  which  the  ..om- 
pany  lawfully  may  hold,  irresi^i'ctive  of  its 
location  and  character,  and  tht  purposes  to 
which  it  is  appropriated,  but  is  limited  to 
such  acquisitions  as  are  incident  to  the  ex- 
istence of  the  railroad,  to  its  objects  and  its 
uses,  and  are  expedient  and  necessary  for 
the  full  enjoyment  of  its  franchise.  Statt 
(New  Jersey  Ji.  &*  T.  Co.,  Pros.)  v.  Collectors, 
•AN.J.L.  519 ;  affirmitig  iS  N./.  L.  31  $.— 
Followed  in  State  (New  Jersey  R.  &  T. 
Co.,  Pros.)  V.  Hancock,  35  N.  J.  L.  537. 
Quoted  in  Illinois  C.  R.  Co.  v.  Irvin,  73 
111.  4Sa. 

By  the  charter  61  the  city  of  Newark,  the 
common  council  is  authorized  to  cause  a 
just  and  equitable  assessment  of  the  dam- 
ages and  expenses  incident  to  the  opening 
and  widening  of  streets  in  said  city,  to  be 
made  among  the  owners  and  occupants  of 
all  the  houses  and  lots  intended  to  be  bene- 
fited thereby,  in  proportion  to  the  advan- 
tages each  shall  be  deemed  to  acquire.  An 
assessment  made,  under  this  provision  of  the 
city  charter,  upon  houses  and  lots  owned  by 
the  above  company  is  not  a  tax  or  imposi- 
tion upon  the  company  within  the  meaning 
of  the  exemption  from  taxation  contained 
in  section  18  of  its  act  of  incorporation. 
St<i/e  (New  Jersey  R.  **  T.  Co.,  Pros.)  v. 
Mayor,  etc.,  of  Newark,  vj  N.  J.  L.  185.— 
Distinguished  in  North  Beach  &  M.  R. 
Co.'s  Appeal,  33  Cal.  499.  Followed  in 
State  (New  Jersey  R.  &  T.  Co.,  Pros.)  v. 
Elizabeth,  37  N.  J.  L.  330. 

A  tax  levied  by  a  city  on  the  boats  ol  the 
company,  used  for  the  transportation  and 
ferriage  of  passengers  and  merchandise  from 
the  terminus  of  the  railroad  on  the  Hudson 
river  to  and  from  the  city  of  New  York. 


and  used  as  a  part  of  a  through  railroad 
route  between  New  York  and  Pennsylvania, 
and  being  part  of  the  property  of  the  com- 
pany represented  by  its  capital  stock,  is  in 
violation  of  the  chartered  rights  of  the  com- 
pany, and  must  be  set  aside.  State  (New 
Jersey  R,  4-  T.  Co.,  Pros.)  v.  Haight,  34  N. 

J.  L.  319. 

The  words  in  the  charter  of  the  company 
"  that  no  other  or  further  tax  or  imposition 
shall  be  levied  or  imposed  upon  the  said 
company  "  refer  exclusively  to  taxation  for 
general  purposes,  and  are  not  applicable  to 
assessments  for  local  improvements.  State 
(New  Jersey  R.  &»  T.  Co.,  Pros.)  v.  Eltwa- 
beth,  37  A^.  ./.  L.  330.— FOLLOWING  State 
(New  Jersey  S.  &  T.  Co.,  Pros.)  v.  Mayor. 
etc.,  of  Newark,  37  N.  J.  L.  185.  Recon- 
ciling State  (Protestant  Foster  Home 
Soc ,  Pros.)  V.  Mayor,  etc.,  of  Newark,  36 
N.  J.  L.  478.— Followed  in  State  (Pater- 
ion  &  H.  R.  R.  Co.,  Pros.)  v.  Passaic,  $4 
N.  J.  L.  340. 

217.  New  Orleans,  O.  &  O.  W.  B. 
Co.— The  charter  o  f  the  company  contained 
a  stipulation  that  \\.i  capital  stock  and  other 
property  "shall  be  exempt  from  taxation 
for  ten  years  after  the  completion  of  said 
road  within  the  limits  of  this  state."  The 
consideration  of  this  grant  was,  of  course, 
the  promise  of  the  corporation  to  prosecute 
to  completion  the  building  of  the  railroad. 
Over  twenty  years  passed,  and  nothing  of 
the  kind  had  been  done,  and  there  was  no 
visible  prospect  of  the  road's  completion. 
Held,  that  the  exemption  had  ceased.  State 
V.  Horgan,  38  La.  Ann.  482. 

Assuming  that  by  the  purchase  of  all  the 
shares  of  stock  or  otherwise  the  plaintiff 
stood  before  the  court  representing  the 
company,  he  could  not  claim  the  exemption 
from  taxation  mentioned  in  the  charter,  in 
view  of  the  fact  that  the  railroad  had  not 
been  completed  within  the  limits  of  the 
state,  although  more  than  twenty  years 
had  elapsed  since  the  charter  was  granted. 
State  V.  Morgan,  28  La.  Ann.  483. 

The  charge  that  the  state,  in  assessing 
the  taxes  sought  to  be  collected,  had  vio- 
lated the  obligation  of  her  contract  with 
the  company  cannot  be  maintained.  The 
state  never  agreed  to  exempt  from  taxation 
forever  the  property  of  that  corporation. 
State  V.  Morgan.  28  La.  Ann.  483. 

218.  New  York  &  Loii|r  Branch 
R.  Co. — The  shares  of  capital  stock  of  the 
company,  in  the  hands  of  a  stockholder,  ar« 


TAXATION,  219-221. 


927 


exempt  from  taxation,  both  by  the  charter 
of  the  company  and  by  New  Jersey  Act  of 
April  II,  1866,  i  15,  exempting  stoclcholdert 
from  assessment.  Statt  {Longstrttt,  Pros.) 
V.  /otus.  38  N.  J.  L.  83. 

210.  New  York  &  Oswego  M.  B. 
Co.  —  By  New  York  Act  of  April  %,  1866 
(Laws  of  1866.  ch.  398),  it  was  provided  that 
tlic  property  of  the  company,  a  corporation 
formed  under  the  General  Railroad  Law  of 
New  York,  should  be  exempt  from  taxation 
until  t\  certain  event  should  happen,  but  for 
a  te.'m  of  not  exceeding  ten  years.  On 
April  39, 1874,  and,  as  was  alleged,  before 
such  ;i;ent  had  happened,  the  legislature 
passed  an  act  (I^ws  of  1874,  ch.  296)  sub- 
jecting the  property  of  the  corporation  to 
t,4xation  for  the  future.  Hild:  (1)  tliat  the 
other  provisions  found  in  the  act  of  1866 
constituted  amendments  of  the  charter  of 
the  corporation ;  (3)  that  tlie  provisions  of 
that  act,  taken  together,  including  the  pro- 
vision for  exemption  from  taxation,  consti- 
tuted  a  contract,  and  one  and  tlie  same 
contract ;  (3)  that  the  provision  for  exemp> 
tion  from  taxation  could  not,  as  against  the 
corporation  and  its  stockholders,  be  abro* 
gated  by  the  state,  without  impairing  the 
obligation  of  the  contract,  unless  the  right 
so  to  do  was  reserved  by  the  state,  as  a  part 
of  the  same  contract ;  (4)  that,  by  reserva- 
tions  in  the  Constitution  and  statutes  of  tlie 
state,  the  legislature  had  the  right  to  amend 
the  charter  of  the  corporation,  by  repealing 
such  exemption  from  taxation.  Htwitt  v. 
New  York  <S-  0,  M.  K.  Co..  12  P latch/.  {U. 
S.)  453.— Revikwino  Wilmington  k  M.  R. 
Co.  V.  Reid,  13  Wall.  (U.  S.)  364;  Tomlin- 
son  V.  Jessup.  iS  Wall.  4S4;  Miller  v.  State, 
1$  Wall.  478;  Humphrey  v,  Pcgues,  16 
Wall.  344;  Pacific  R.  Co.  v.  Maguire,  20 
Wall.  36. 

220.  North  Carolina  B.  Co.— Under 
a  provision  of  the  charter  of  the  above  com* 
pany  exempting  from  taxation  its  right  of 
way,  station  places,  etc.,  until  the  company's 
dividends  should  exceed  six  per  cent,  per 
annum,  county  authorities  have  no  power 
to  tax  the  same  until  the  dividends  reach 
the  prescribed  amount,  Richmond  &•  D.  K. 
Co.  V.  Orange  County  Com'rs,  74  A^.  Car.  $06. 
— APPROViNr.  Wilmington,  C.  &  A.  R.  Co. 
V.  Brunswick  County  Com'rs.  71  N.  Car.  10. 
— Foi-LOWED  IN  Richmond  &  D.  R.  Co.  v. 
Brogden,  74  N.  Car.  707.  Reviewed  in 
North  Carolina  R.  Co.  v.  Alamance  Com'rs, 
8a  N.  Car.  3(9. 


A  dividend  of  fifteen  or  twenty  per  cent, 
paid  in  Confederate  money  is  not  such  a 
dividend  as  was  contemplated  in  the  char- 
ter of  the  company,  in  exempting  the  real 
estate  of  the  company  from  taxation,  until 
the  dividends  or  profits  of  said  conipany 
should  exceed  six  per  cent. ;  nor  is  the  six  per 
cent,  rent  received  from  the  Richmond  and 
Danville  railroad  company  such  a  dividend 
or  profits.  Hithmond  G^  D.  R.  Co.  v.  Brcg' 
den.  74  N.  Car.  707,  13  Am.  Ry.  Rep.  114. 

Extent  of  exemption  of  the  company  from 
taxation  explained.  North  Carolina  R.  Co. 
V.  Alamance  Com'rs,  77  N.  Car.  4. 

Shares  in  the  capital  stock  of  the  com« 
pany  are  not  exempt  from  taxation  by  a 
legislative  enactment  that  "all  reai  estate 
held  by  said  company  for  right  of  way,  for 
station  places  of  whatever  kind,  and  for 
workshop  location,  shall  be  exempt  from 
taxation  until  the  dividends  or  profits  of 
said  company  shall  exceed  six  fier  centum 
per  annum."  Belo  v.  Forsyth  County  Com'rs, 
8a  N.  Car,  41$.— Quoting  Richmond  &  U. 
R.  Co.  V.  Alamance  Com'rs,  /6  N.  Car.  313. 

Under  the  charter  of  the  company,  all  real 
estate  held  by  it  for  right  of  way,  for  station 
places,  and  workshop  location,  the  machin- 
ery, tools,  and  implements  employed  in  the 
manufacture  and  repair  of  cars  and  engines, 
and  office  lots  necessary  for  the  use  of  its 
officers,  are  exempt  from  taxation  until  the 
dividends  of  profits  shall  exceed  six  per  cent, 
per  annum.  Richmond  &*  I).  R.  Co.  v.  Ala- 
mance Com'rs.  7  Am,  S*  Etig.  R.  Cas,  339, 84 
A^.  Car,  504.— Quoting  Richmond  &  D.  R. 
Co.  V.  Alamance  Com'rs,  76  N.  Car.  312. 

The  company  is  liable  to  be  taxed  upon 
money  on  hand  and  on  deposit ;  and  is  not 
entitled  to  the  credit  of  three  fourths  of  the 
taxes  paid  between  1869  and  1874 ;  and  is 
also  liable  upon  shares  of  stock  held  by  k 
for  the  years  1875  and  1876.  Richmond  &* 
D.  R.  Co.  V.  Alamance  Com'rs,  7  Am,&*Eng, 
R.  Cas,  339,  84  N.  Car.  504. 

The  act  of  assembly  relating  to  the  tax- 
ation of  the  property  of  this  company,  and 
the  method  of  assessment  thereof  by  the 
state  board,  and  the  adjustment  of  the 
claims  of  the  respective  parties  to  this  pro- 
ceeding, discussed  and  pointed  out.  Rich' 
mond  **  D.  R.  Co.  v.  Alamance  Com'rs,  7 
Am.  &*  Eng.  R.  Cas.  339,  84  N.  Car.  504. 

221.  Northern  Pacific  B.  Co.— 
Under  the  act  of  congress  chartering  the 
company,  its  right  of  way  through  the 
public  lands  of  Moitana  was  an  easement 


TAXATION,  222-287. 


I 


therein;  and  all  the  personal  property  of 
said  road  attached  to  the  noil  within  tlie 
boundaries  of  such  right  of  mny  was  a  ptirt 
of  such  land  and  therefore  ezenipt  frum 
taxation  under  the  provisions  of  said  act. 
NortHtrn  I'ac.  R.  Co,  v.  Car  land,  17  Am.  &* 
Et^.  R.  Cas.  364,  5  MmI.  146,  3  Pac.  Ktp. 
134.— QuoTiNO  Appeal  of  North  Beuch  & 
M.  R.  Co.,  33  Cal.  S06. 

222.  Poclflo  It.  €o.-Whether  the  ex- 
emption from  taxation  granted  to  the  south- 
western branch  of  the  road  by  the  act  of 
Dec.  35,  iSjs.  I  13.  continues  in  favor  of 
the  Atlantic  and  Pacific  railroad  company, 
fuart.  Bailty  v.  Atlantic  &•  P.  K.  Co.,  3 
Dill,  (U,  .$.)  33.  See  also  Parmlty  v.  St. 
Louii,  I.  M.  4-  S.  A'.  Co..  3  Dill.  {U.  S.)  35. 

Mo.  Act  of  Dec.  35,  1852,  §  12,  and  its  ac- 
ceptance  by  the  Pacific  railroad,  were  a  con- 
tract between  the  state  and  that  company 
binding  tiie  state,  and  for  two  years  after  its 
completion  exempted  that  road  from  tax- 
ation, no  dividend  being  declared  in  the 
meantime  ;  and  the  same  principle  governs 
as  to  taxation  of  what  is  denominated  the 
South  West  Branch  railroud.  South  Pae. 
Jt.  Co,  V.  LacUdt  County,  j;  Afo.  147.  — 
Approving  Pacific  R.  Co.  v.  Maguire,  20 
Wall.  (U.  S.)  36.— Followed  in  Ljiwrcnce 
County  V.  Atlantic  &  P.  R.  Co.,  $7  Mo.  149 ; 
Barry  County  v.  Atlantic  &  P.  R,  Co.,  57 
Mo.  149. 

223.  Pateraoii  &  HiMlaoii  R.  Co.— 
The  charter  of  the  company  provides  for  the 
payment  of  certain  taxes  to  the  state,  and 
then  enacts  that  "  no  further  or  other  tax 
or  impost  shall  be  levied  or  assessed  upon 
■aid  company."  Helii,  not  only  to  exempt 
the  franchises  and  privileges  of  the  com- 
pany, but  the  company  generally  and  its 
properly,  from  taxes  for  county,  township, 
and  alt  other  purposes  than  those  stated  in 
the  charter.    Stat*  v.  Bfrry,  17  N.J.  /_.  80. 

The  tax  paid  under  the  above  provision 
of  the  charter  was  a  commutation  for  all 
taxei  on  such  property  as  might  necessarily 
be  held  for  purposes  reasonably  incident  to 
the  enjoymtnt  of  the  franchise,  and  the 
charter  exempts  the  company  and  its  prop- 
erty held  for  such  purimses  from  all  other 
taxes,  whether  assessed  for  state,  or  for  city 
or  township  pu.'poses.  Gardner  v.  Statt,  3i 
iV.  /.  L.  SS7  FoLLOWKU  IN  State  (New 
Jersey  R.  &  T.  Co..  Pros.)  v.  Hancock.  35 
N.  J.  L.  537. 

224.  Peteraburv  R.  Co.— Section  17 
of  the  charter  of  the  company,  which  ex- 


empted its  property  from  taxation,  has  been 
repealed  by  Va.  Act  of  April  3,  1853,  which 
united  it  with  the  Greenesville  and  Roanoke 
railroad  company,  which  act  was  accepted 
by  the  company,  and  the  property  of  the 
said  company  is  new  subject  to  taxation. 
Ptttrtburg  V.  Ptttrsburg  Ji.  Co.,  39  Cratt. 
{ya.)77i, 

225.  Philndelpliia,  W.  &  B.  R.  Co. 
—The  legislature,  by  Md.  Act  of  1831,  ch. 
396,  §  19,  which  exempts  the  stock  of  the 
company,  reserves  the  right  to  tax  its  fixed 
and  permanent  works,  the  tax  on  the  prop- 
erty thus  excepted  being  proper  on  the 
ground  of  selection.  Tax  Cases,  13  Gill&* 
/.  (JM)ii7. 

220.  PoiiKhkeepsle  &  Eaatern  B. 
Co.-Under  N.  Y.  Act  of  1866,  ch.  546,  §  33. 
chartering  the  above  company,  and  provid- 
ing that  "the  real  and  personal  property 
of  said  corporation  and  the  capital  stock  of 
the  same  shall  be  exempt  from  taxation  fcr 
state,  county,  town,  or  municipal  purposes 
until  a  single  track  of  said  road  shall  be 
completed,  for  a  term,  however,  not  exceed- 
ing ten  yearii,"  it  was  the  intention  to  ex- 
empt the  road  from  taxation  until  a  single 
track  was  completed,  though  in  no  case 
should  the  exemption  continue  beyond  ten 
years.  Poughkeepsie,  H.  &'  B.  Ji.  Co.  v. 
Simpson,  23  Hun  (N.  V.)  43 ;  affirmed  in 
89  A".  Y.  636.  mem. 

227.  Rome  R.  Co.  — The  property  of 
the  company  within  the  city  of  Rome 
which  is  ncccss.nry  to  the  business  of  the  com- 
pany is  a  part  of  its  capiul  stock,  and  not 
liable  to  taxation  as  property  by  that  city. 
Rome  R.  Co.  v.  Mayor,  etc.,  0/  Macon,  14  Ga, 
375.—  Approved  in  Northern  Pac.  R.  Co. 
V.  Barnes,  2  N.  Dak.  310.  Distinguished 
IN  People  ex  rel.  v.  Com'rs  of  Taxes,  2  Am. 
&  Eng.  R.  Cas.  343.  82  N.  Y.  459. 

The  correct  mode  of  taxing  the  company 
is  to  estimate  the  whole  property  at  its  true 
value;  upon  so  much  «.  (  this  value  as  equals 
the  amount  of  capital  stock  actually  paid 
in,  assess  at  the  charter  limit  (31^  cents  on 
every  |ioo) ;  and  upon  the  l)alance  of  such 
value,  if  any,  assess  at  the  general  rate. 
GohUmitk  v.  Rome  R.  Co.,  63  Ga.  473.—' 
Followed  in  (ioldimiih  v.  Augusta  &  S. 
R.  Co.,  62  (iti  468  ;  Ooldsmith  v  Central  R. 
Co.,  62  Ga.  509. 

In  no  case  can  the  assessment  exceed  the 
rate  ad  valorem  linpose<l  upon  property  gen- 
erally;  this  KC^cral  rate,  when  exceeded  by 
the  charter  rate,  must  be  levied  upon  the 


TAXATION,  228-232. 


MO 


whole  value.     Goldsmith  v.  Romt  Ji,  Co.,  6a 
Ca.  473. 
228.  St.  John  Bridge  &  B.  E.  Co. 

~  The  company's  right  to  be  exempt  from 
taxation  is  not  affected  by  the  union  of  the 
cities  of  Portland  and  St.  John,  the  agree- 
ment of  the  city  of  Portland  being  binding 
upon  the  united  city.  £x  partt  St.  John 
B  &»  H.E.  Co.,  30  New  Brun.  551. 

By  44  Vict.  c.  44,  S  41,  incorporating 
the  company,  the  bridge  to  be  erected  was 
made  forever  exempt  from  taxation;  and 
the  town  council  of  Portland  was  by  the 
same  section  authorized  to  exempt  from  all 
or  any  rates  or  taxes  the  railway  and  other 
works  of  the  company.  A  resolution  of  the 
common  council  of  the  city  was  passed  in 
1888,  exempting  the  company's  railway 
from  future  taxation.  Held,  that  the  act 
33  Vict.  c.  46  had  no  application  to  the 
company,  and  that  the  latter  could  not  be 
assessed  on  its  income  deiived  from  the 
bridge  and  railway.  Ex  f art*  St,  John  B. 
&*  Ji.  E.  Co.,  30  New  Brun.  S51. 

220.  St.  John  City  B.  Co.  — The 
company  is  a  railway  company  within  the 
meaning  of  33  Vict.  c.  46,  and  is  exempt 
from  taxation  under  the  provisions  of  that 
act.    Ex  partt  Ztbtty,  30  Nru>  Brun.  130. 

230.  St.  Joseph  &  Iowa  B.  Co.— 
Although  the  charter  of  the  company  ex- 
empted its  property  from  taxation,  a  branch 
road  built  by  it  under  Mo.  Act  of  1868 
(Laws,  p.  90)  would  be  subject  to  taxation 
in  its  hands.  State  ex  re),  v.  Chicago,  B. 
6-  K.  C.  K.  Co..  89  Mo.  523.  14  S.  W.  Kep.  52a. 

231.  St.  Paul  &  Pacific  B.  Co.— 
Minn.  Act  of  March  2,  1865  (Special  Laws 
1865,  ch.  6),  entitled  "  An  act  to  nid  and  facil- 
itate the  completion  of  the  St.  Paul  and  Pa- 
cific railroad  and  branches,"  applies  to  all  the 
lines  of  railroad  authorized  to  be  built 
under  the  charter  originally  granted  to  the 
Minnesota  and  Pacific  railroad  company  by 
the  Act  of  May  22,  1857.  Chicago.  M.  &* 
St.  P.  R.  Co.  V.  Pfaender,  23  Minn.  217,  17 
Am.  Ry.  Rep.  44. 

The  act  of  1865  having  been  passed,  as 
appears  upon  its  face,  on  the  assumption 
and  belief  th<it  the  company  then  owned 
and  heid  those  lines  of  road  and  the  fran- 
chises thereto  belonging,  an  acceptance  of 
\Xi  provisions  and  benefits  by  the  com- 
pany ea'ops  it,  and  every  company  subse- 
quently acquiring  title  through  it  to  any 
portion  of  such  lines,  from  disputing  the 
correctness  of  such  assumption.  Chicago, 
1  D.  R.  D.— S9 


M.  &*  St.  r.  X.  Co.  V.  P/atnder,  33  Minm, 
317.  17  Am.  Ry.  Rep.  44. 

The  exemption  from  all  taxation  and  as- 
sessment therein  contained  was  not  simply 
a  personal  privilege  conferred  upon  the 
company,  but  was  in  the  nature  of  a  con- 
ditional grant,  appurtenant  to  its  several 
lines  of  railroad,  and  charged  with  the  per- 
petual burden  of  an  annual  payment  of  the 
specified  sum  therein  provided,  dating  from 
the  time  when  any  portion  of  such  lines 
equal  in  extent  to  thirty  miles  should  be 
completed  and  in  operation.  Chicago,  M. 
6-  St.  P.  R.  Co.  V.  Pfaender,  23  Minn.  317, 
17  Am.Ry.Rep.  44.— Followed  in  Stevens 
County  V.  St.  Paul.  M.  &  M.  R.  Co.,  29  Am. 
&  Eng.  R.  Gas.  335,  36  Minn.  467.  31  N.  W. 
Rep.  943. 

In  case  of  a  severance  and  division  of 
such  lines  of  road  and  the  franchises  thereto 
appertaining  among  different  companies, 
reference  must  be  had  to  the  time  when 
ouch  first  thirty  miles  of  completed  road 
were  built  and  put  in  operation,  in  ascertain- 
ing and  fixing  the  rate  per  cent,  and  amount 
of  gross  earnings  each  company  is  to  pay 
during  any  given  year  as  to  its  line  of  road. 
Chicago,  M.  *•  St.  P.  R.  Co.  v.  Pfaender, 
33  Minn.  217.  17  Am.  Ry,  Rep.  44. —Ap- 
proved IN  State  V.  Northern  Pac.  R.  Co.,  39 
Am.  &  Eng.  R.  Cas.  319,  36  Minn.  307,  30 
N.  W,  Rep.  663. 

In  ascertaining  the  amount  due  to  the 
state  from  the  company  on  account  of  the 
earnings  of  its  road  during  any  period  em> 
braced  in  its  annual  report,  under  Minn. 
Act  of  March  a,  1865,  reference  must  be  had 
to  the  date  of  the  passage  of  that  act  as  the 
time  when,  for  such  purpose,  the  first 
thirty-mile  section  of  completed  road  is 
deemed  to  have  been  completed  and  put  into 
operation.  Chicago,  M.  6-  St.  P.  R.  Co,  v. 
Pfaender   23  Minn.  317, 17  Am. Ry.  Rep.  44. 

The  above  company  having  succeeded  to 
the  ownership  of  the  lands  formerly  granted 
to  the  Minnesota  and  Pacific  railroad  com- 
pany, with  the  exemption  of  such  company 
from  ordinary  taxation  until  its  lands  were 
sold,  a  mere  executory  contract  for  the  sale 
of  the  lands  does  not  deprive  it  of  the  pro- 
tection accorded  by  Minnesota  Act  of  March 
4,  186s.  relating  to  sales  for  taxes.  Stevens 
County  v.  St.  Paul,  M.  **  M.  R.  Co.,  29  Am. 
&*  Eng.  R.  Cas.  225,  36  Minn.  467,  31  A'.  tV. 
Rep,  942. 

232.  St.  Paul,  M.  A  M.  B.  Co.— 
Under  the  charter  of  the  above  company. 


930 


TAXATION,  2a3-237. 


8;'':";' 


I  i8,  the  eiemption  from  taxation  ex- 
tends only  to  such  property  as  may  be 
fairly  said  to  be  held  and  presently  used  for 
railroad  purposes;  and  property  not  so 
used,  although  held  with  the  purpose  of 
devoting  it,  at  some  future  time,  to  such 
use,  is  not  within  the  exemption.  But  this 
does  not  mean  that  the  exemption  will  not, 
under  any  circumstances,  apply  to  property 
needed  for  it  not  actually  used,  as  the  word 
is  ordinarily  applied,  as  some  time  must 
necessarily  elapse  between  the  date  of  the 
acquisition  of  property  and  the  date  at 
which  it  can  be  prepared  and  put  into  actual 
use  for  railroad  purposes.  Hence,  where 
lands  are  purchased  in  good  faith  for  the  pur* 
pose  of  using  them  as  soon  as  present  plans 
are  fully  executed,  and  processes  of  appro- 
priating them'  to  such  uses  are  proceeding 
without,  unreasonable  delay,'  they  will  be 
brought  within  the  exemption,  although  not 
yet  put  to  actual  use.  St.  Paul  v.  St.  Paul, 
M,  &*M.  R.  Co.,  39  Minn.  II2.  38  A^.  W. 
Rip.  93$.  —  Following  Ramsey  County  v. 
Chicago.  M.  &  St.  P.  R.  Co.,  33  Minn.  537 ; 
Todd  County  v.  St.  Paul,  M.  &  M.  R.  Co., 
38  Minn.  163. 

283.  St.  Paul,  S.  &  T.  F.  R.  Co.  — 
The  percentage  required  to  be  paid  to  the 
state  by  a  railroad  corporation  accepting 
the  provisions  of  Minn.  Sp.  Laws  1873,  ch. 
Ill,  pursuant  to  section  2  of  said  act, in  lieu 
of  taxation,  is  to  be  graduated  with  refer- 
ence to  the  time  of  completion  of  thirty 
miles  of  its  own  line,  and  not  with  reference 
to  the  fixed  date  named  in  the  act  with 
respect  to  the  St.  Paul,  Stillwater,  and 
Taylor's  Falls  railroad  company.  State  v. 
Northern  Pac.  R.  Co.,  29  Am.  &*  Eng.  R.  Cas. 
319,  36  Aft'nn.  207,  30  N.  W.  Rep.  663. 

284.  Savaunnh  &  C.  B.  Co.  — The 
company  was  chartered  with  an  exemption 
from  taxation,  and  bonds  were  issued 
having  a  first  statutory  lien  on  the  property 
of  the  corporation.  Subsequently  the  gen- 
eral assembly  passed  an  act  undertaking  to 
postpone  the  first  lien  in  favor  of  a  second 
issue  of  bonds  bv  that  act  authorized,  upon 
condition  that  the  corporation  would  release 
its  exemption  fro(.>  taxation,  which  was 
done.  The  postponement  of  the  lien  being 
unconstitutional  —  held,  that  as  to  bond- 
holders under  the  first  lien  who  did  not 
assent  to  the  terms  of  the  second  act  the 
property  of  the  corporation  in  the  hands  of 
the  original  company  and  also  in  the  hands 
of  its  successor,  a  new  company,  was  exempt 


Irom  taxation.    Hand  v.  Savannah  &•  C.  H. 
Co.,  17  So.  Car.  319. 
235.  Soutberu   Pacific   It.  Co.— 

Where  railroad  companies  are  created  under 
state  laws,  the  fact  that  congress  has  granted 
lands  in  aid  thereof  and  reserved  the  right  to 
use  them  for  postal  and  military  purposes 
will  not  exempt  them  from  taxation,  in  the 
absence  of  an  express  provision  by  congress 
to  that  effect.  5(JM/ii  Clara  Caunty  v.  Southern 
Pac.  R,  Co.,  13  Am.  A«  Eng.  R.  Cas.  183, 
18  Fed.  Rep.  385,  9  Sawy.  (U.  S.)  165. 

230.  SoiitliwoMterii  Air  liue  E.  R. 
Co.  —  By  Miss.  Act  of  Feb.  27,  1854,  f  15, 
incorporating  the  company,  it  is  enacted 
"that  the  fixtures  and  property  of  said 
company  shall  be  exempt  from  taxation,  for 
and  during  the  full  period  of  twenty  years 
from  the  passage  of  this  act ;  and  that  the 
privileges  and  benefits  of  this  provision 
shall  be  extended  to  all  railroad  charters 
heretofore  granted  by  the  legislature  of  this 
state,  as  well  as  those  hereafter  to  be 
granted,  unless  specially  excepted  ;  and  the 
same  shall  be  a  part  of  said  cliarters."  Held, 
that  this  provision  exempts  all  the  property 
of  companies  from  municipal  as  well  as 
state  and  county  taxation,  and  th<'.'  exemp- 
tion is  secured  to  companies  then  chartered, 
for  the  period  of  twenty  years  from  the 
passage  of  the  act.  and  to  companies  there- 
after chartered  for  twenty  years  from  the 
date  of  their  cliarters.  Southern  X.  Co.  v. 
Mayor,  etc, ,  of  Jackson,  38  Miiif,  334. 

237.  Soiithwostern  B.  Co.  —  That 
portion  of  the  new  Southwestern  railroad 
known  formerly  as  the  Muscogee  railroad, 
from  Columbus  to  Butler,  .^s  not  liable  to  be 
taxed  beyond  the  limitation  fixed  in  the 
charter,  it  being  covered  by  the  decision  nf 
the  supreme  court  of  the  United  States 
(Central  R.  &  B,  Co.  v.  Georgia,  93  U,  S. 
665).  The  road  from  Fort  Valley  to  Butler 
is  not  liable  to  be  taxed  further  than  pro- 
vided in  the  charter.  The  main  line  from 
Macon  to  Fort  Gaines  is  exempt  from  taxa- 
tion, except  as  limited  in  the  charter.  The 
line  from  Cuthbert  to  Eufaula  is  subject  to 
the  ad  valorem  tax,  less  the  amount  already 
pa!1.  The  line  from  Albany  to  Arlington 
is  liable  to  the  ad  valorem  tax,  deducting 
the  income  tax  paid,  it  being  made  expressly 
liable  for  "  such  additional  tax  as  the  legis- 
lature may  hereafter  impose."  The  court 
held  that  the  act  of  1874  imposed  the  ad 
valorem  tax.  Southwestern  R.  Co.  v.  IVr^ht, 
68  Ga.  311. 


TAXATION,  988-949. 


m 


C.Jl. 


988.  Union  Paelflc  R.  Co.— No  sute 

hu  a  right  to  tux  the  meant,  agenciei,  or 
initrumentalitiei  rightfully  employed  within 
the  atatea  by  the  general  government  (or 
the  execution  of  ita  powers;  but  the  interest 
of  the  general  government  in  the  above 
company  will  not  make  it  such  an  agency 
as  to  exempt  it  from  state  taxation.  Uhioh 
Pac.  A".  Co.  V.  Liiuo/H  County,  i  Dill.  {U.S.) 
3I4.->QUALIFYIN0  M'Culloch  V.  Maryland, 
4  Wheat.  (U.  S.)  316:  Osborn  v.  Bank 
of  United  States,  9  Wheat.  738.  Quot- 
ing Adams  v.  Boston,  H.  &  E.  R.  Co.,  i 
Hulmes  (U.  S.)  30:  Hall  v.  Sullivan  R.  Co.. 
Brun.  Col.  Cas.  (U.  S.)  613. 

aao.  United  New  Jersey  R.  A  C. 
Co. — The  company,  having  an  irrepealable 
charter  and  contract  therein  with  the  state 
on  the  subject  of  taxation,  is  not  taxable 
under  N.  J.  General  Railroad  Tax  Law  of 
1873. 1  I  (Acts  1873,  p.  112),  im<l  not  having 
surrendered  its  former  contract  and  accepted 
the  provisions  of  that  act  in  lieu  thereof, 
has  not  subjected  itself  to  taxation,  as  pro- 
vided by  section  10.  Stat*  (Unittd  H.  &* 
C.  Co.,  Pros.)  V.  Com'rs  of  K.  Taxation,  37 
N.J,  L.  240. 

The  lands  of  the  company  acquired  and 
held  under  N.  J.  Act  of  March  20,  1868 
(Pamph.  L.  p.  551),  to  increase  its  depot 
and  terminal  facilities  at  Jersey  City, 
cannot  be  assessed  for  taxes  to  pay  the 
principal  and  interest  on  the  certificates  of 
indebtedness  denominated  "Jersey  City 
Water  Scrip."  Statt  (United  N.  /.  /f.  4* 
Canal  Co.,  Pros.)  v.  Aiayor,  ttc,  0/  fersty 
City.^i  N.J.  L.tn\. 

240.  Vermont  Central  R.  Co.— The 
provision  in  the  charter  of  the  above  com- 
pany, S  17,  exempting  its  property  and  effects 
from  taxation,  is  limited  to  such  real  estate 
as  the  company  is  authorized  to  take  by 
proceedings  in  invitmn.  Vermont  C.  X, 
Co.  V.  Burlitigton,  28  Vt.  193.  —  Quoting 
State  (Cumdcn  &  A.  R.  &  T.  Co.,  Pros.) 
V.  Mansfield  Com'rs,  23  N.  J.  L.  510; 
Worcester  v.  Western  R.  Corp.,  4  Mete. 
(Mass.)  $64*  Reviewing  Reading  R.  Co. 
V.  Berks  County,  6  Pa.  St.  70.  —  Ap- 
PROVBD  IN  Memphis  &  C.  R.  Co.  v.  Gaines, 
3  Tenn.  Ch.  604.  Referred  to  in  Todd 
County  V.  St.  Paul,  M.  &  M.  R.  Co.,  ji 
Am.  &  Eng.  R.  Cas.  482,  38  Minn.  163.  36 
N.  W.  Rep.  105.  Reviewed  in  Eldridge  v. 
Smith,  34  Vt.  484. 

But  where  the  company  has  paid  to  a 
town,  under  protest,  taxes  on  its  property 


which  is  exempt,  it  can  only  recover  luch 
amount  as  was  collected  for  the  benefit  of 
the  town,  and  not  state,  county,  and  state 
school  taxes.  Vet  mont  C.  X.  Co.  v.  Burlii^- 
ton,  28  Vt.  193. 

241.  Western  R.  Corp.— The  corpo« 
ration  is  not  liable  to  be  taxed  for  the  land, 
not  exceeding  five  rods  in  width,  over  which 
it  is  authorized  to  lay  out  its  road,  nor  for 
buildings  and  structures  thereon  erected,  if 
sucli  buildings  and  structures  are  reason- 
ably incident  to  the  support  of  the  road  or 
to  its  proper  and  convenient  use  for  tht 
carriage  of  passengers  and  property,  such 
as  houses  for  the  reception  of  passengers, 
engine  houses,  car  houses,  and  depots  for 
the  convenient  reception,  preservation,  and 
delivery  of  merchandise  carried  on  the  road. 
Worcester  v.  Western  H.  Corp.,  4  At  etc. 
(Mass.)  564. —  Applied  in  Hrainard  v. 
Clapp,  loCush.  (Mass.)6.  Disiinguished 
IN  Portland.  S.  &  P.  R.  Co.  v.  Saco,  60 
Me.  196:  Boston.  C.  &  M.  R.  Co.  v.  Gil- 
more,  37  N.  H.  410.  Quoted  in  Railroad 
Com'rs  V.  Portland  &  O.  C.  R.  Co.,  63  Me. 
269;  Vermont  C.  R.  Co.  v.  Burlington,  28 
Vt.  193.  Referred  to  in  Todd  County  v. 
St.  Paul,  M.  &  M.  R.  Co.,  31  Am.  &  Eng.  R. 
Cas.  482,  38  Minn.  163,  36  N.  W.  Rep.  105. 
Reviewed  in  State  (Camden  &  A.  R.  &  T. 
Co.,  Pros.)  V.  Mansfield  Com'rs,  23  N.  J. 
L.  510. 

242.  Wilmington  &  Weldon  R. 
Co. — The  privilege  of  exemption  from  tax- 
ation granted  to  the  company  by  North 
Carolina  Act  of  Jan.  3,  1834,  is  limited  to  its 
main  line,  and  does  not  extend  to  a  branch 
road  which  it  acquires,  or  is  authorized  to 
construct.  WilmitigtoH  &*  W.  R.  Co.  v. 
Alsbrook,  53  Am.  &»  Eng.  K.  Cas.  687,  146 
U.  S.  279,  «3  Sup.  a.  Rep.  72. 

That  portion  of  the  road  which  lies 
between  Halifax  and  Weldon,  having  been 
constructed  by  another  company,  is  not 
exempt  from  taxation.  Wilmington  6-  W. 
R.  Co.  V.  Alsbrook,  53  Am.  &-  Eng.  R.  Cat. 
687,  146  U.  S.  279.  13  Sup.  Ct.  Rep.  72. 

The  acquisition  of  the  Halifax  and  Wel- 
don railroad  by  the  Wilmington  and  Raleigh 
railroad  company.'now  the  Wilmington  and 
Weldon  railroad  company,  under  N.  Car. 
Act  of  i83$-36,  did  not  merge  the  first- 
named  road  in  the  main  line  of  the  latter, 
and  hence  the  property  thereby  acquired  is 
not  entitled  to  claim  the  exemption  from 
taxation  alleged  to  have  been  granted  in 
the  charter  of  the  Wilmington  and  Weldon 


918 


TAXATION,  a4»-a45. 


I  iff  ;i* »''• 


''•;'Si 


■fti* ''« 


»y; 


•      1 


)J    1 


railroad  company.  IVitmit^ton  ^  W.  R, 
Co.  V.  AMrook,  no  M  Gir.  137,  14  S.  £• 
Rtp.  652.  Wilmington  &*  IV.  K.  Co.  v.  Ah- 
brook,  no  A^.  Car.  437,  14  5.  A^  AV/.  1007. 

The  exeinpiiiin  from  tnxatinn  cluimed  to 
have  been  graMied  by  Laws  1833-34,  ch.  78, 
incorporating  the  Wilmington  and  Raleigh 
railroad  company  (now  the  Wilmington  and 
Weldon  railroad  company),  if  valid  at  all, 
it  confined  to  the  "  main  line"— from  Wil- 
mington to  Halifax— and  does  not  extend 
to  or  embrace  any  "  branch  roads  "  which 
that  company  was  authorized  by  its  charter 
to  construct  or  acquire.  Wilmington  A* 
W.  R.  Co.  V.  Ahbrook,  wo  N.  Car.  137,  14 
.9.  E.  Rtp.  652.  Wilmington  6-  W.  R. 
Co.  V.  AMrook,  wo  N.  Car.  437,  14  S.  E. 
Rtp.  1007. 

243.  Wiiiona  &  8t.  Peter  U.  Co. 
— The  company,  having  succeeded  to  "  the 
rights,  benefits,  privileges,  property,  fran- 
chises, and  interest "  of  the  Transit  R.  Co., 
is  entitled  to  hold  the  lands  granted  to  the 
latter  company,  by  Minn.  Territorial  Act 
of  ?<!ay  33,  1857,  exempt  from  taxation,  as 
provided  in  said  act,  subcli.  2,  §  4.  Statt 
V.  Winona  &»  SI.  P.  R.  Co..  3i  A/inn.  315, 
18  Am.  Ry.  Rtp.  440.— Following  First 
Div.  St.  P.  k  P.  R.  Co.  V.  Parcher,  14 
Minn.  397. 

The  requirement  of  the  state  Constitu- 
tion, that  "laws  shall  be  passed  taxing  *  "■  * 
nil  real  and  personal  property  at  its  true 
value  in  money,"  considered  ;  and  htld,  not 
to  prohibit  or  render  void  the  transfer  of 
this  immunity  from  taxation,  by  the  state  to 
the  company,  by  a  law  passed  after  the 
adoption  of  the  Constitution.  Statt  v. 
Winona  *•  St.  P.  R.  Co.,  21  Xitin.  315,  18 
Am.  Ry.  Rep.  440.— Approvri)  in  Winona 
&  St.  P.  R.  Co.  V.  Deuel  County,  7  Am.  & 
Eng.  R.  Cas.  348.  3  Dak.  1.  Followed  in 
Stevens  County  v.  St.  Paul,  M.  &  M.  R  Co., 
'  29  Am.  ft  Eng.  R.  Cas.  325,  36  Minn.  467, 
31  N.  W.  Rep.  942;  State  v.  Southern 
Minn.  R.  Co.,  21  Minn.  344. 

244.  Yacoo  &  M.  V.  R.  Co.*- 
The  provisions  of  the  charter  of  the  com- 
pany, that  its  property  shall  be  exempted 
from  taxation  for  a  term  of  twenty  years 
from  the  completion  of  its  railway  to  the 
Mississippi  river,  "  but  not  to  extend  beyond 
twenty- five  years   from    the   date  of   the 


*Yaaoo  and  Mississippi  Valley  railroad  com* 
paoy's  charter  construed,  see  37  An.  dc  Eno.  R. 
Cas.  394.  mhir. 


approval  of  this  act,"  takes  effect  only 
upon  the  completion  of  the  railroad  to  the 
Mississippi  river,  and  so  long  as  it  remains 
uncompleted  it  is  subject  to  taxes  imposed 
by  a  later  statute.  Vatoo  &»  M.  V.  R. 
Co.  V.  Tkomas,  41  Am,  A«  Eng.  R.  Cat.  599, 
132  U.  S.  174,  10  Sup.  Ct.  Rep.  68;  affirm- 
ing  37  Ain.  &*  Eng.  R.  Cat.  392,  65  Afitt. 
553.  S  So.  Rtp.  108.— Following  Vicksbnrg, 
S.  &  P.  R.  Co.  V.  Dennis,  1 16  U.  S.  665. 

After  consolidation  of  the  Louisville,  N. 
O.  &  T.  R.  Co.  with  the  Yazoo  &  M.  V.  R. 
Co.,  the  latter  succeeded  to  the  immunity 
from  taxation  on  that  part  of  its  lines  which 
formerly  comprised  the  Natchez,  J.  dr  C.  R. 
Co.  Natchez,  J.  **  C.  R.  Co.  v.  Lamitrt, 
70  Miss.  779,  13  So.  Rep.  33. 

Said  exemption  from  taxation  is  not 
affected  by  Miss.  Const,  of  1890,  §  181, 
declaring  that  the  property  of  all  corpo- 
rations for  pecuniary  gain  shall  be  taxed  in 
the  same  way  and  to  the  same  extent  as 
the  property  of  individuals,  for  that  section 
expressly  provides  that  exemptions  from 
taxation  then  existing  should  remain  in 
force  for  the  time  fixed  by  charter  or  the 
general  laws,  unless  sooner  repealed  by  the 
legislature.  Natchta,  J.  &*  C.  R.  Co,  v. 
Lamitrt,  70  Mitt.  779, 13  So.  Rtp.  33. 

▼II.  4MMWflWT  AVB  IITT. 

240.  Federal  courts.— The  fact  that 
a  state  has  prescribed  a  particular  mode  of 
assessing  the  property  of  a  company,  as 
upon  a  report  made  by  certain  officers,  does 
not  constitute  such  a  contract  as  to  prevent 
the  legislature  from  prescribing  a  different 
mode ;  but  until  a  different  mode  is  pre- 
scribed the  method  fixed  must  be  followed. 
Railty  v.  Afogwirt,  23  Wall.  (6^.  5.)  315,  n 
Am.  Ry.  Rep.  470. 

The  capital  stock,  franchises,  and  all  the 
real  and  personal  property  of  corporations 
are  justly  liable  to  taxation  ;  and  a  rule  is 
fair  which  ascertains  the  value  of  all  this 
by  ascertaining  the  cash  value  of  the 
funded  debt  and  of  the  shares  of  the  cap- 
ital stock  as  the  basis  of  assessment.  De- 
ducting from  this  the  assessed  value  of  all 
the  tangible  real  and  personal  property, 
which  is  also  taxed,  leaves  the  real  value  of 
the  capital  stock  and  franchise  subject  to 
taxation  as  justly  as  any  other  mode,  all 
modes  being  more  or  less  imperfect.  Tay- 
lor V.  Stcor,  93  U.  S.  $7$.— Distinguished 
IN  Singer  Mfg.  Co.  v.  Wright,  33  Fed.  Rep, 


TAXATION.  94e. 


938 


l»f.  QuoTRO  IM  PIttibnrgh,  C,  C.  ft  St. 
L.  K.  Co.  V.  Rackut,  $4  Am.  &  Kng.  R.  Cat. 
3J7.  133  Ind.  6 J  5.  33  N.  E.  Rep.  43 J. 

Where  «  tute  ConstUution  requires  all 
genenil  laws  to  be  uniform  in  their  opera- 
tion, and  all  laws  (or  the  assessment  and 
collection  of  taxes  to  be  general  and  of 
uniform  operation  throughout  the  state, 
and  that  the  property  of  all  corporations 
shull  be  subject  to  taxation  tlie  same  as 
that  of  individuals,  gutrr*  whether  it  is  com- 
petent for  the  legislature  to  tax  railway 
corporations  on  their  earnings  while  the 
bulk  of  the  other  property  in  the  state  is 
taxed  upon  its  value.  Muscatint  v.  Mis- 
sisiippt &*  Af.  R.  Co.,  I  Dill.  {U.  S.)  $36.— 
DiSTiNOUiSHiNO  Gilman  v.  Sheboygan,  2 
Black  (U.  S.)  sio. 

The  land  and  improvements  thereon  must 
be  assessed  separately  like  other  real  estate, 
and  an  assessment  not  made  in  the  mode 
and  on  the  principles  stated  is  void.  Huh- 
lingloH  v.  CtHtral  Pac,  R.  Co»  a  Sawy,  ( U. 

s.)  503. 

The  cost  of  the  construction  of  a  railroad 
is  not  a  safe  criterion  to  follow  in  estimat- 
ing its  value  for  taxation.  Ore  road  may 
cost  two  or  three  times  as  much  as  another, 
and  yet  not  be  as  valuable.  The  net  earn- 
ings of  the  road,  cost  of  maintenance  and 
operation,  and  many  other  things,  should 
be  taken  into  consideration.  Cincinnati 
Southern  R.  Co.  v.  GunttMtr.  19  FtJ.  Rtp.  395. 

240.  Alabama.*— Under  the  Revenue 
Act  of  1868,  two  distinct  systems  of  assess- 
ments are  provided  :  one  of  general  subjects 
of  taxation,  which  is  required  to  be  made 
by  the  assessor ;  the  other  of  railroads  and 
their  rolling  stock,  which  duty  was  cast  on 
the  auditor.  There  has  been  no  law  since 
before  December  31,  1868,  which  authorized 
the  tax  assessor  or  collector  to  assess  rail- 
roads or  their  rolling  stock.  Perry  County 
V.  Selma,  M.  &»  M.  R.  Co.,  58  Ala,  546,  so 
Am.  Ry.  Rtp.  372. 

Under  the  above  act  there  is  no  such 
thing  as  an  assessment  of  property  for 
county  taxes ;  the  assessment  is  for  state 
taxation  alone ;  but  after  equalization  of 
the  assessment  by  the  county  board,  the 
court  of  county  commissioners  levies  a  tax 
on  the   state    assessments  to   provide  for 

*  State  bnardfl  of  equalization,  see  nnies,  13 
Am.  &  Eno.  R.  Cas.  255;  3  L.  K.  A.  188. 

Constitutionality  of  statutes  requiring;  assess- 
ment of  railroad  pro|)erty  by  stale  boanls,  see 
J4  Am.  iV  KNci.  R.  Cas.  351,  abstr. 


county  expenses.     Sute  UXM  an  UMMcd, 

county  taxes  are  only  levied.  Pirry  County 
V.  Selma.  M.  5*  M.  R.  Co,,  {8  Ala.  546,  ao 
Am.  Ry.  Rtp.  372. 

In  the  Acts  of  1868  and  187$,  "to  estab- 
lish revenue  laws  for  the  state  of  Alabama," 
are  clauses  which  empower  the  assessor  and 
collector,  in  certain  conditions,  to  assess 
property  which  had  escaped  assessment  dur- 
ing previous  years ;  but  those  clauses  give 
no  authority  to  such  officers  in  the  cases 
under  discussion,  because  (1)  this  is  not 
property  which  has  escaped  assessment, 
these  railroads  having  been  assessed  each 
year  for  state  taxes :  (2)  the  assessor  had 
no  authority  to  assess  railroads  or  their 
rolling  stock,  and  hence  it  cannot  be  af- 
firmed that  they  have  escaped  the  assessor 
— the  auditor  was  the  assessor,  and  they  had 
not  escaped  him  ;  (3)  as  there  is  no  author- 
ity to  assess  any  property  for  county  taxes, 
and  the  railroads  were  assessed  for  state 
taxes,  they  did  not  escape  any  assessment 
which  the  law  authorized  to  be  made.  Ptrry 
County  V.  Stlma,  M.  **  M.  R.  Co.  58  Ala. 
546,  20  Am.  Ry,  Rtp.  370.— Reviewed  in 
Winter  v,  Montgomery  City  Council,  79 
Ala.  481. 

Ala.  Code  of  1876.  §  383,  establishes  a  rule 
for  the  estimation  of  the  value  of  railroad 
property  for  the  purpose  of  taxation  which 
is  not  authorized  by  the  Constitution  ;  and, 
therefore,  the  assessment  of  taxes  made  in 
obedience  to  it  is  invalid,  and  is  properly 
vacated  by  a  court.  Assessment  Board  v. 
Alabama  C.  R.  Co.,  59  Ala.  551. 

Under  the  Revenue  Law  of  1868.  which, 
so  far  at  regards  the  assessment  of  tha 
property  of  railroad  corporations,  continued 
in  force  up  to  and  during  the  year  1874, 
the  provision  contained  in  section  26,  that 
tlie  auditor  of  the  state  shall  not  appnr- 
tion  the  values  among  the  several  roimtirt 
through  which  the  railroad  runs  until  the 
equalization  shall  have  been  made  hy  the 
board  appointed  for  that  purpose,  is  iiiatul:i- 
tory,  and  any  apportionment  made  prior  to 
such  equalization  is  null  and  void.  State 
Auditor  V.  Jackson  County,  7  Am.  6*  Eng, 
R.  Cas.  273,  65  Ala.  142. 

The  provision  contained  in  said  section 
26,  requiring  the  board  of  equalization  to 
meet  at  the  office  of  the  auditor  on  the 
third  Wednesday  in  May  annually,  (or  the 
purpose  of  transacting  its  official  business, 
is  inerclv  directory  as  to  the  day  of  meet* 
iii|r.     The    statute  contemplates  ex  parte 


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procMdlagi  bf  the  board,  naMng  no  provi- 
•ien  for  conteiu  bdfore  it  by  the  parties 
interested,  and  is  not  uneonstitational  on 
tliat  account.  (Somerville,  J.,  dissenting.) 
StmU  AuHtar  v.  Jaekton  Ctunty,  7  Am,  6* 
&^.  X.  Cos.  373.  65  Ala.  143. 

The  provision  also  contained  in  said  sec- 
tion 26  requiring  tlie  l>oard  of  equaliiation 
to  "  Iceep  a  record  of  tbeir  proceedings  "  is 
mandatory,  and  sucli  record  is  a  cotidition 
precedent  to  a  valid  assessment  and  appor- 
tionment; hut,  to  constitute  a  recj-  % '**  is 
not  necessary  tliat  tlie  proceeding:.  ..suid 
ht  Itept  in  a  Iwolc;  a  writing,  or  written 
memorandum,  is  sufficient ;  and  upon  pr»  f 
of  its  loss  or  destruction  secondai^ 
dence  of  its  contents  rnay  be  receiveill  .  1 
acted  on.  State  Auditor  v.  Jackson  Co^t.  y. 
7  Am.  ^Et^.  R.  Can  273, 65  A/a.  142. 

Tlie  provision  contained  in  tiie  same 
section  that  the  record  of  the  proceedings 
of  the  board  "  shall  be  signed  by  all  the 
members  present "  is  mandatory;  but  when 
the  minutes  show  that  all  the  m«mber8  of 
the  board  were  present  when  tney  com- 
menced bi:siness,  and  jret  the  record  is 
signed  by  only  two  of  them,  the  courts  will 
indulge  the  presumption  that  the  third 
had  retired  before  the  business  was  finished, 
the  remaining  memliers  being  a  quorum. 
Statt  Amdittir  "9.  Jackson  Coumfy,  T  Am.  ^ 
Eng.  R,  Cos.  373, 65  Aia.  143. 

Section  24  of  the  sutute  requiret  the 
president  and  secretary  of  each  company  to 
report  annually  to  the  auditor,  under  oath, 
the  total  length  of  their  road,  and  its  total 
length  in  this  state,  with  the  value  thereof, 
including  right  of  way,  roadbed,  sidetrack, 
and  main  traok,  and  also  the  total  length 
and  value  thereof  in  each  county,  together 
with  the  number  and  value  of  all  engines, 
cars,  and  other  rolling-stock.  The  objept  of 
this  provision  was  to  obuin  a  basis  for  the 
apportionment  of  the  railroad  property 
between  this  state  and  any  other  slate  Into 
which  Xht  road  might  run,  and  alio  for  the 
apportionment  of  that  part  HiMelo  taxa- 
tion here  among  the  several  counties 
through  whldi  it  runs.  But  the  report  of 
those  oflicers  li  not  conclusive  on  the  audi- 
tor, nor  Is  it  a  condition  precedent  to  a  Valid 
assessment  and  apportionment  \^  him. 
SUmtt  Auditor  y.Jaeksom  Couufy,  7  Am.  ^ 
£iqf.  X.  Cat.  373. 65  Ait.  Ht. 

VnAu  tile  provblont  of  the  staiete,  the 
radHor  la  the  aaaeaaor  0!  the  property  of 
lllbnidi^  Md  then  eaa  he  no  valid  appor- 


tionment until  he  hat  made  the  awessiaent. 
He  has  no  authority  to  assess  back  taxes,  or 
the  omitted  taxes  of  former  years ;  but  he 
may  at  any  time  certify  to  the  county  as- 
sessor the  ascertafaied  value  of  the  railroad 
track  in  the  county,  and  the  proportionate 
value  of  the  rolling  stock,  when  the  facts 
have  l>een  so  ascertained  and  shown  by 
legal  evidence  that  he  can  determine  this 
proportionate  value  by  a  clerical  calculation, 
which  is  a  mere  ministerial  act  and  has 
nothing  judicial  in  it.  Stato  Auditor  v. 
Jackson  County,  7  Am.  4«  Eng.  R.  Cos.  373, 
65  Ala.  143.  Perry  County  v.  Selma,  M.  &• 
M.  R.  Co,,  7  Am.  &•  Et^.  R.  Cos.  398,  6$ 
Ala.  391. 

While  the  present  Constitution  requires, 
as  did  the  Constitution  of  1868,  that  the 
income  of  corporations  shall  be  taxed  at 
the  same  rate  that  is  imposed  on  the  in- 
come of  natural  persona,  and  the  l^islature, 
when  the  power  is  asserted,  cannot  tax  the 
one  at  a  higher  and  the  other  at  a  lower 
rate,  yet,  the  first  step  in  taxation  being  the 
levy  by  the  l^(islatttre,  until  that  is  done 
there  can  be  no  assessment  or  collection  of 
taxea  on  either.  St^Oe  v.  Board  of  Revenue, 
73  Ala.  6$. 

947*  AHeona.  —  Under  the  provisions 
of  Ariaona  Revenue  Law,  $  3649,  that  rail- 
road property  ahall  be  asaessed  by  the  board 
of  equalisation,  and  tliat  railroad  companies 
may  appear  and  show  why  such  assessment 
should  be  lowered  or  changed,  the  board  is 
authoriied  to  makeahcrationsin  the  assess- 
meat.  Atlantic  4*  P.  R.  Co.  v.  Yavapai 
County,  (Aria.)  39  Am.  A*  Ei^.  R.  Cos.  $43. 
31  Pac.  Rep.  768. 

Under  a  statute  which  provides  that "  as- 
sessments shall  be  made  upon  the  entire  rail- 
way *  *  *  and  shall  include  the  franchise, 
right  of  way,  bridges,  culverts,"  etc.,  "and 
all  other  property,  real  and  personal,  ex- 
clusively used  la  the  opention  of  such  rail- 
way," it  is  not  necessary  that  each  item  by 
which  the  conelusion  breached  shall  appear 
in  the  assessment  roll.  Atlantic  ^  P.  R. 
Co.  r.  Vuvapai  County,  (Ario,)  39  Am.  &» 
Eiif.  R.  Ckr.  543,  St  Pm:.  Rep.  76S. 

MS.  AHrmane.  ->  A  sutute  is  not  in- 
valid became  H  aothorlaaa  the  assessment 
of  railroad  traeka,  whlck  are  treated  as  real 
esute,  annually,  wheraas  other  real  esute  is 
only  aasecsed  biennially.  St.  Louis,  /.  M. 
&*S.  R.  Co.  y.  WittkeU,  ^t  Am.  &»  Et^. 
R.  Cos.  $89,  $3  Ark.  fsg,  13  S.  W,  Rep.  as4. 
—Following  on  different  greuodl  UUim 


TAXATION,  249. 


•86 


Rod!  k  Ft.  S.  R.  Co.  *.  Worthen,  46  Ark. 
313;  Huntington  *.  Wortbcn.  lao  U.  S.  9/. 

The  prorMontof  the  Revenue  Actof  1883 
(Manif.  Dig.  ff  S647-S659)  are  not  uncon- 
stitutional on  the  ground  tliat  thejr  rs- 
quire  the  tracic*  and  "rolling  atocic"  of 
railwajs  to  be  aaaeaaed  bjr  a  sute  board  of 
commiMioners,  while  the  act  provides  for 
the  valuation  of  all  other  property  by  ooun* 
ty  assessors.  St.  Loitit,  I.  M.  &»  S.  R.  Co. 
V.  Wtrthm,  41  Am.  &*  E$^.  R.  Cos.  589,  53 
Ark.  539,  13  S.  IV.  Rtp.  354. 

Nor  is  said  statute  unconstitutional  be- 
cause it  fails  to  provide  for  an  appeal  from 
the  valuation  of  railroad  property  fixed  by 
the  state  board.  St.  Lmis,  I.  M.  ^  S.  R. 
Co.  V.  Wmrthm,  41  Am.  6*  E^g.  R.  Cos. 
589,  53  Ark.  539^  13  5.  IT.  Rep.  354.— 
Quoting  Kentucky  Railroad  Tax  Cases, 
115  U.  S.  331. 

That  notice  of  the  meeting  of  a  board  of 
commissioners  for  the  purpose  of  assessing 
railroad  property  for  taxation  is  not  given  to 
^the  railroad  company  will  not  render  the  as- 
sessment void  as  a  taking  of  property  with- 
out  due  process  of  law,  where  the  time  and 
place  for  the  meeting  of  the  board  are  fixed 
by  statute.  The  notice  contained  in  the 
statute  is  all  that  can  be  required.  St.  Louis, 
I.  M.  &»  S.  R.  Co.  V.  WortkoH,  41  Am.  &» 
Emg.  R,  Cms.  $89^  $>  Ark.  539^  13  S.  W. 
Rtp.  3S4. 

Where  a  bridge  corporation,  owning  a 
railway  toll-bridge^  grants  the  use  thereof 
for  the  period  of  its  corporate  existence  to 
a  railway  company,  reserving  its  corporate 
franchise  and  the  right  to  contract  with 
other  parties  for  the  use  of  the  bridge,  the 
bridge  should  be  assessed  by  the  county  as- 
sessor as  the  property  of  the  br.dge  com- 
pany, and  not  by  the  a ute  board  of  railway 
commisBionen  as  the  property  of  the  rail- 
way company.  St.  Louis  &»  S.  F.  R.  Co.  v. 
WHIiami,  S3  Ark.  $8. 13  5.  W.  R»p.  796. 

940.  California.— (I)  Fodtrctdoeisioms. 
—Under  the  Constitution  and  laws  of  Cali- 
fornia relating  to  taxation,  fences  erected 
apon  the  line  between  the  roadway  of  a  rail- 
road and  the  bind  of  coterminous  proprie- 
tors are  not  part  of  "the  roadway," to  be  in- 
cluded by  the  state  boaid  i.i  its  valuation  of 
the  property  of  the  corporation,  bat  are 
"Improvements"  assessable  by  the  local 
■nthorities  of  the  proper  county.  Smtta 
Ouru  Comtjf  v.  Soutkom  Pme.  R.  Co.,  34 
Am.  4*  Big.  R.  Ctu.  %ti,  118  U,  S.  394. 6 
Sup*  CI.  Rop.  1133.  —  FoLU>WKD  IM  Cali- 


fornia V.  Central  Pae.  R.  COh  3)  An.  ft  Eag . 
R.  Cas.  4SI,  137  U.  S.  I. 

In  assessing  a  railroad  for  the  purposes  of 
taxation,  the  value  of  fences  between  the 
right  of  way  and  adjoining  owners  was  im- 
ptoperly  included.  ffoU,  that  a  tax  based 
on  this  valuation  as  a  unit  was  invalid  as  a 
whole.  The  court  could  pot  eliminate  tha 
part  that  was  based  on  the  value  of  tiM 
fence,  and  give  judgment  for  the  remainder. 
Santa  Clara  County  v.  Soutktrn  Par.  R.  Ck, 
34  Am.  4*  .£iff.  J?.  Cas.  533, 118  t/.  5, 394, 
6  Sup.  Ct.  Rop.  1133.— FOLLOWBD  IN  San 
Bernardino  County  v.  Southern  PM.  R. 
Co.,  118  U.  S.  417.  Quoted  in  Alexandria 
C,  R.  &  B.  Co.  V.  District  of  Columbia.  5 
Mackey  (D.  C.)  376. 

Under  the  sute  statute  a  railroad  must 
be  taxed  as  real  estate,  and  the  portion  sit- 
uate in  each  county  must  be  assessed  in  said 
county  as  so  much  land,  like  the  adjoining 
lands,  without  reference  to  its  connections, 
or  the  uses  to  which  it  is  put,  and  must  be 
assessed  at  its  "cash  value,"  which  is  "the 
amount  at  which  the  property  would  be  ap- 
praised if  taken  in  payment  of  a  just  debt 
due  from  a  solvent  debtor."  /funtii^tom  v. 
Contra/  Pae.  R.  Co.,  3  Saiwy.  ( U.  S.)  503. 

Neither  the  Constitution  nor  the  laws  of 
California  ralating  to  the  assessment  of 
railroads  operated  in  more  than  one  county 
provide  for  notice  to  the  owner  or  an  op- 
portunity for  him  to  be  lieard  at  any  stage 
of  the  proceeding.  In  this  respect  both 
conflict  with  Ve  guaranty  that  no  one  sliaU 
be  deprived  t '  property  without  due  proc- 
ess of  law.  Jan  Matto  County  v.  Soutktrm 
Pae.  R.  Co.,  8  Am.  4*  Ei^.  R.  Cas.  i,  13  /M 
Rtp.  I4S,  7  Sawy.  {U.  S.)  517.  San  Motto 
County  V.  Soutktrn  Pae.  R.  Co.,  8  Satoy.  {U. 
S.)  338, 13  Ftd.  Rtp.  733;  appeal  tUsm^tod 
in  116  U.  S.  138.  6  iik^.  Ct.  Rop.  317.— 
Quoted  in  Smith  v.  Louisville  A  N.  R. 
Co.,  31  Am.  ft  Eng.  R.  Cas.  157. 7$  Ala.,  419. 

By  Cal.  Const.,  art.  13,  "a  mortgage. djetd 
of  trust,  contract,  or  other  obligation  '1^ 
which  a  debt  is  secured"  is  treated,  for  the 
purposes  of  assessment  and  taxation,  as  an 
interest  in  the  property  sheeted  tber^. 
and,  "except  as  to  railroad  and  other  fwaii^ 
public  corporations,"  the  value  of  tha  pnt^ 
erty  aieeted,  less  the  value  of  tha  Mcarilgr. 
Is  to  be  assessed  and  tuedto  Its  ownar.aad 
the  value  of  tiie  tecurity  is  to  b*  aasMMd 
and  taxed  to  itt  holder.  (Sac  4O  Bat  Iqr 
the  same  article  "  the  franchise.  ra«d»iqr. 
roadbed,  raUs.  and  rolling  stock  of  all  rail- 


986 


TAXATION,  M«. 


■toads  operated  In  mofe  than  one  countj  " 
are  to  be  aaaeeaed  at  their  actual  value,  and 
apportioned   to  the  counties,  cities,  and 
districts  in  which  the  roads  are  located,  in 
proportion  to  the  number  of  miles  of  rail- 
way laid  therein,  no  deduction  from  this 
value  being  allowed  for  any  mortgages  on 
the  property.    NM,  tliat  In  the  different 
modes  thus  prescribed  of  assessing  the  value 
of  the  property  of  natural  persons  and  the 
property  of  railroad  corporations  as  the 
basis  of  taxation,  there  is  a  departure  from 
the  rule  of  equality  and  uniformity.    Sam 
Mmttf  Cfitmty  v.  Southtm  Pae,  R.  Co.,  8  Am. 
^  Bug.  R.  Cat.  1, 13  Ftd.  Rtp.  14$,  7  Saiwy. 
(U.  S.)  517.    5<iiM  Ma/ta  County  v.  Southern 
Pm.  R.  Co.,  8  Sawy.  {U.  S.)  338. 13  Ftd.  Rtp. 
jn\apptaldismiaud in  116  U.  S.  I38.65'ag». 
Ct.  Rep.  317.— DiSTiNOUiSHBD  IN  Maubat- 
-  tan  R.  Co.  v.  Mayor,  etc,  of  N.  Y.,  13  Am. 
k  Eng.  R.  Cas.  a6i,  t8  Fed.  Rep.  195 ;  Singer 
Mfg.  Co:  V.  Wright,  33  Fed.  Rep.  lat.  Foi^ 
LOWBD  IN  San  Fnuicisco  ft  N.  P.  R.  Co^  v. 
Dinwiddle,  8  Sawy.  313, 13  Fed.  Rep.  789; 
Sanu  Clara  County  v.  Southern  Pac.  R. 
Co.,  13  Am.  ft  Eng.  R.  Cas.  183,  18  Fed. 
Rep.  385, 9  Sawy.  165. 

An  assessment  made  in  strict  accordance 
with  the  provisions  of  the  Constitution  of 
the  state  relating  to  the  assessment  of  the 
property  of  "  railroad  and  other  fw«f/'public 
corporations  "violates  the  provisions  of  the 
fourteenth  amendment  to  the  Constitution 
of  the  United  States  by  taking  private  prop- 
erty without  due  process  of  law.  San  Fran- 
eiuo  &»  N.  P.  R.  Co.  v.  Diimiddit,.  8  Sawy. 
iU.  S.)  313, 13  Ftd.  Rtp.  789.— Following 
San  Mateo  County  v.  Southern  Pac  R.  Co.. 
8  Sawy.  338. 

Such  assessment  is  void.     A   payment 

-under  It  Is  not  a  payment  under  duress,  but 

is  vfduntary  and  cannot  be  recovered.    San 

Fran  isco  &»  N.  P.  R.  C#.  v.  Dinmtddie,  8 

Sam^.  (U.  S.)  313, 13  Ftd.  Rtp.  789. 

(3)  State  dteitiont.—\3a6tt  Cal.  Coast, 
•rt.  9b  I  13.  providing  for  the  dection  of 
edUeetors  and  assessors  by  the  qualified 
electors  of  the  district  in  which  the  prop- 
er^ taxed  is  situated,  the  assessor  hss  no 
power  to  assess  property  situated  beyond 
the  limiu  of  his  own  district.  Pttpib  v. 
PbeerPittt  a*  S.  V.  R.  Co.,  34  Cai.^. 

Boards  of  supervisors  of  the  scvend  eooa- 

'  ties  through  which  run  railroads  opertted 

hilMre  than  one  county  have  no  jartodh»> 

tiM  to  raise  or  lower  the  aassMmeats  plaoed 

upon  Uie  property  of  such  ruads  by  the  state 


boafd  of  equalisation.  PttpUv.  SaerametUo 
Connty  Sap'rt,  59  Cat.  3SI. 

The  provision  of  the  CalifomU  Constitu- 
tion that  the  assessment  of  railroads  op- 
erated in  more  than  one  county  Is  to  be 
made  by  the  state  board  of  equalisation  is 
self-executing,  and  the  aid  of  a  statute  is 
not  necessarv  to  enable  the  board  to  act. 
San  Franeiuo  &•  N.  P.  R.  Co.  v.  State 
Board  of  EjnaUiuMon,  13  Am^  &•  Bug.  R, 
Cat.  348, 60  Cs/.  13. 

Cal.  Const  art.  13, 1 9,  so  far  as  it  relates 
to  the  state  board,  has  reference  to  the 
equalisation  of  assessments  between  coun- 
ties. The  Political  Code,  f  3693.  subdiv.  g^ 
refers  to  the  equalisation  l>etween counties; 
and  Sf  3693-93,  If  they  attempt  to  provide 
o'  the  equalisation  of  individual  assess- 
ments, are  void.  San  Franciuo  6»  N.  P. 
R.  Co.  V.  State  Board  of  Equaliacaion,  13 
Am.  A*  Emg.  R.  Cat.  348,  60  Cal.  13. 

Assuming  section  3664  of  the  Political 
Code  to  be  valid,  where  no  "  sworn  state- 
ment" hi  filed,  the  corporation  is  cut  off 
from  Its  right  to  appeal  to  the  board,  within 
five  days,  to  have  its  first  assessment  cor- 
rected.  And  since  It  is  only  where  a  state- 
ment has  been  presented  that  the  application 
can  be  made  to  have  the  assessment  cor- 
rected, the  sssessment  made  by  the  board 
after  the  statement  Is  furnished  Is  the  one 
which  may  be  corrected.  It  was  not  the 
purpoee  of  the  atatuta  to  allow  the  corpora- 
tion to  complain  of— and  have  corrected— 
iU  own  sworn  statement.  .Sim  Franeiuo 
^  N.  P.  R.  Co.  V.  Statt  Board  of  FqnaliMa- 
tion,  13  Am.  &»  E^g.  R,  Cat.  34R,  60  Cal.  la. 

A  reconsideration  of  the  assessment  (or 
equalisation)  (rf  railroad  property  can  only 
be  made  by  the  state  board  in  case  a  peti- 
tion shall  be  filed  by  a  party  interested, 
within  five  days  after  the  assessment  is 
made  and  entared.  San  FrantUeo  &*  N.  P. 
R,  Co.  V.  Statt  Board  if  Eqnaliaatim,  13 
Am.  A*  &ig.  R.  Cas.  348, 60  Cal  13. 

The  annual  valuation  by  the  state  board 
of  equalisation,  whkh'preeedesthe  fixing  of 
the  rate  of  taxation,  api^ies  to  the  rata 
which  for  state  porpoaes  Is  fixed  for  two 
years,  and  for  conn^,  dty,  etc,  purposes, 
perhaps  for  a  single  year.  The  order  of 
aaaesament  made  oa  <Mr  before  the  first  Men- 
day  Itt  March  need  not  dcchuv  the  par- 
ticular fiscal  year  or  years  to  which  it  is 
applicable.  It  fii  made  appllcabie,  l>y  fair 
construction  of  the  Constitution  and  stat- 
utes^ to  the  ordMS  fixing  the  rata  of  taxation 


TAXATION,  S60^S52. 


M7 


which  next  ttieeised  it.  Sam  Framciteo  <h 
N.  P,  R.  Co.  V.  StaU  Board  of  EgmMuUioH, 
13  Am.^Eag.  R.  Cas.  248, 60  Col.  12. 

The  question  whether  it  is  obligatory  on 
the  board  to  specify  the  several  items  of 
railroad  property,  not  decided,  as  the  order 
of  assessment  in  question  did  assess  sepa- 
rately the  franchise,  roadway,  roadbed,  rails, 
and  rolling  stock.  San  Fratuiseo  &*  J\f.  P. 
R.  Co.  V.  Stat*  Board  of  EquMnation,  13 
Am.  5«  EMg.  R.  Cas.  248, 60  Ctil.  is. 

The  Constitution  does  not  in  terms  re- 
quire that  the  assessed  value  of  each  item 
of  railroad  property  should  be  separately 
apportioned  to  the  several  counties  by  the 
board,  nor  does  the  Political  Code,  f  3650, 
so  require.  The  Constitution  does  not  re- 
quire  that  the  apportionment  to  counties 
and  to  cities,  etc..  shall  be  one  act.  San 
Fraiuixo  5«  N.  P.  R,  Co.  v.  Statt  Board  of 
EqualiMotioH,  13  Am.  &*  Eng.  R.  Cas.  248, 
60  Cat.  12. 

The  description  of  the  to»A—ktld,  suffi- 
cient. The  itrmini,  courses,  and  'distances 
being  given,  the  law  fixes  the  wiuth.  San 
Francisco  A-  N.  P.  R.  Co.  v.  Statt  Board  of 
Equalt'MatioH,  13  Am.  &*  Eng.  R.  Cas.  248, 
60  Cat.  12. 

Petitioner  contends  that  the  property  had 
been  assessed  thrice  —  i.  e.,  the  roadway, 
roadbed,  and  rails  were  the  same.  Hold, 
not  tenable.  The  roadbed  is  the  foundation 
on  which  the  superstructure  of  a  railroad 
rests.  The  roadway  is  the  right  of  way- 
property  liable  to  taxation.  The  rails  in 
place  constitute  the  superstructure  resting 
upon  the  roadbed.  San  Francisco  Si*  N.  P. 
R.  Co.  V.  Sttao  Board  of  Eguatiaatton,  13 
Am.  A*  Eng.  R.  Cas.  248, 60  Cat.  13. 

The  provision  of  Cal.  Constitution  that 
the  property  of  railroad  and  other  fuasi- 
public  corporations  is  subject  to  assessment 
and  taxation,  without  deduction  of  the 
amount  of  any  tttortgage  or  like  lien  thereon, 
docs  not  conflict  with  the  provision  of  the 
United  States  Constitution  that  no  state 
shall  "  deny  to  any  person  within  its  juris* 
'  diction  the  equal  protection  of  the  laws." 
A  corporation  is  not  a  person  within  the 
meaning  of  the  Constitution.  Cmtral  Pac. 
R.  Co.  V.  Statt  Board  of  EfuaUtatiom,  13 
Am.  &»Ei^.  R,  Cas.ti/6, 60  Cat.  35. 

Cat.  Const,  ait.  ij  |  9,  relating  to  the 
etjnalisatiiiMi  of  county  assessment  rolls,  has 
no  relation  to  the  assessment  of  the  prop- 
Any  of  railroad  corporations  operated  in 
more  dian  one  county.    OMrat  Pac.  R.  Co. 


V.  Stato  Board  of  Ef$taUk$titm,  I)  Am.  &» 
Et^.  R.  Cas.  3s6,  te  Ctd.  3$. 

Steamers  used  by  a  company  in  transfer* 
ring  freight  across  a  bay  between  different 
parts  of  iu  road  are  not  included  in  the 
property  defined  by  Cal.  Const,  art.  13, 1 10^ 
as  "  franchise,  roadway,  roadbed,  rails,  and 
rolling  stock  of  railroads  operated  in  more 
than  one  county,"  which  must  be  assessed 
by  a  state  board  of  equalisation.  Such 
steamers  should  be  assessed  by  the  local 
assessors.  San  Francisco  v.  Com  Pac. 
R.  Co.,  63  Cal.  467, 49  Am.  Rtp.  91  -Fol- 
lowed IN  California  v.  Central  Pac  R.  Co.. 
33  Am.  ft  Eng.  R.  Cas.  451, 127  U.  S.  i. 

260.  ColonMlo.  — The  phrase  "exclu- 
sively used  "  in  Colo.  Laws  of  1885,  p.  322, 1 2 
does  not  limit  the  action  of  the  state  board 
to  such  rolling  stock  as  always  remains  upon 
the  company's  lines  and  under  ita  immedi- 
ata  control.  The  authori^  of  the  board 
includes  cars  which  in  performing  thtir 
regular  journeys  pass  out  of  the  ttate  and 
become  temporarily  useful  in  operating 
other  railroads.  Dmvtr  &•  R.  G.  R.  Co.  v. 
Chut  ^h,  48  Am.  &»  E>^.  R.  Cat.  627, 17  CoU 
I,  38  Pac.  Rep.  468. 

251.  Connectiout.— The  valuation  of 
the  property  of  a  company  for  the  purpose  of 
taxation  constitutes  an  "assessment  "of  the 
property,  as  that  term  is  used  in  the  stat- 
utes. State  V.  Now  York,  N.  H.  ^  H.  R, 
Co.,  60  Conn.  326,  22  Atl.  R*p,  765. 

By  "  cash  on  hand,"  in  the  statute  reUitive 
to  deductions  from  taxable  valuation  of 
railroad  property,  is  intended  ready  monqr, 
or  that  which  in  ordinary  business  usage  is 
the  same  thing,  as  banknotes,  checks, 
drafts,  bills  of  exchange,  certificates  of  de- 
posit, and  other  like  instrumenu  which  pus 
with  or  without  indorsement  from  hand  to 
hand  as  money  or  are  immediately  con'.'ert- 
ible  into  money.  Stat*  v.  Now  York,  N.H. 
&»  H.  R.  Co.,  60  Conn.  326.  22  Atl.  R^.yt^, 

262.  Delaware.— A  law  of  the  state 
provided  that  the  Philadelphia.  Wilmington 
and  Baltimore  railroad  company,  owning 
*yffr  miles  of  track  in  tlie  stata,  should  pay 
in  lieu  of  all  other  taxes  the  sum  of  140.000 
annually.  Subsequently  the  company  aiMed 
two  branches  aggregating  ti-^nilles.  In 
1881  an  wt  of  the  legislature  provided  that 
if  the  Delaware  and  Western  railroad  com- 
pany became  put  of  a  trunk  line,  it  shottld 
pay  a  tax  bearing  the  same  proportion  to 
I40.000  that  ita  line  bore  to  tlie  length  Of 
the  Philadelphia.  Wilmington  and  Baklmore 


988 


TAXATION,  253-255. 


'M 


IK 


•  ■?'i;i'>' 


■m- ... 


iV-i 


i\^ 


i> 


road,  tftfd,  that,  in  forming  the  propor- 
tion for  the  computation  of  the  tax,  the  two 
branches  added  to  the  first-mentioned  road 
should  not  be  considered.  Herbert  v.  Bal- 
timore 6-  P.  R.  Co.,  (Del.)  13  Atl.  Rep.  902. 

263.  District  of  Columbia.  —  The 
mere  cost  of  the  planlcs  of  a  bridge  is  not 
the  only  element  to  be  taken  into  consider* 
ation  in  maicing  an  assessment;  the  use 
permitted  to  be  made  of  tlie  property  under 
the  franchise  may  enter  as  a  constituent 
into  the  valuation.  Alexandria  C,  R.  Sf  B. 
Co.  V.  District  of  Columbia,  7  Am.  &*  Eng. 
R.  Cas.  325,  I  Mackey  (D.  C.)  217. 

Where  there  is  an  appeal  board  author- 
ized and  required  to  sit  and  hear  all  com- 
plaints as  to  overvaluation  or  impropriety 
of  assessments  and  to  revise  the  same,  and 
its  action  is  declared  to  be  complete  and 
final,  persons  who  wilfully  neglect  to  avail 
themselves  of  the  opportunity  so  amply 
afforded  them  cannot  expect  a  court  of 
equity,  after  long  delay,  to  relieve  them 
from  the  consequences  of  their  own  laches. 
Especially  will  the  court  not  substitute  its 
own  judgment  for  that  of  the  tribunal  ex- 
pressly created  for  that  purpose.  Alex- 
andria  C.,R.&»  B.  Co.  v.  District  of  Colum- 
bia, 7  Am.  6-  Eng.  R.  Cas.  325,  i  Mackey 
(D.  C.)  217. 

A  bridge  which  lies  partly  in  the  District 
and  partly  in  the  state  of  Virginia  cannot 
be  assessed  by  the  District  upon  its  entire 
length ;  only  that  portion  within  the  Dis- 
trict can  be  assessed,  otherwise  the  assess- 
ment is  illegal,  and  a  bill  to  enjoin  a  sale  of 
the  property  by  the  District  authorities  for 
non-payment  of  the  tax  will  be  sustained. 
Alexandria  C,  R.  &*  B.  Co.  v.  District  of 
Columbia,  7  Am.  &*  Eng,  R.  Cas.  323,  i 
Mackey  {D.  C.)  217. 

Where  a  tax  is  assessed  upon  different 
kinds  of  property  as  a  unit,  and  a  part  of 
the  property  is  not  legally  taxable,  the  whole 
tax  will  be  void  if  the  court  cannot,  from 
anything  in  the  record,  separate  the  invalid 
portion  from  that  which  is  valid.  Alexan- 
dria C.,R.&*  B.  Co.  V.  District  of  Columbia, 
S  Mackey  (D.  C.)  376.  —  Quoting  Santa 
Clara  County  V.  Southern  Pac.  R.  Co.,  118 
U.  S.  394. 

The  board  of  equalization  has  no  power 
to  decide  any  question  going  to  the  invalid- 
ity of  a  tax;  it  can  only  increase  or  de- 
crease ihe  tax :  it  is  therefore  no  objection 
to  granting  relief  by  the  courts  against  an 
invalid  tax  that  no  appeal  was  made  to  this 


board.    AUxandria  C.,R.  &»  B.  Co.  v.  Dit- 
trict  of  Columbia,  5  Mackey  (D.  C.)  376. 

254.  Florida.  —  There  is  no  statute 
authorizing  the  county  commissioners  to 
raise  or  lower  the  valuation  of  railroad 
property  assessed  by  the  state  comptroller, 
as  prescribed  by  statute.  Pensacola  v. 
Louisville  6-  N.  R.  Co.,  21  Fla.  492. 

Fla.  Laws,  ch.  3219,  §  46,  and  ch.  3413, 
§  46,  charge  the  state  comptroller  with  the 
duty  of  assessing  the  total  number  of  miles 
and  value  of  any  railroad  in  the  state  the 
line  of  which  runs  through  two  or  more 
counties  or  through  a  county  ar.d  incorpo- 
rated city  or  town,  and  apportioning  the 
value  of  the  road  in  each  county,  incorpo- 
rated  city,  or  town,  and  the  prop  tionate 
value  of  the  locomotives,  engine  passen- 
ger, freight,  platform,  construction,  and 
other  cars  and  appurtenances,  and  with- 
draws fron  the  local  assessors  of  towns  and 
cities  through  which  the  road  runs  the 
power  to  assess  the  same  under  the  general 
power  granted  to  municipal  corporations  to 
assess  and  tax  all  real  and  personal  property 
within  their  limits.  Pensacola  v.  Louisville 
A*  N.  R.  Co.,  21  Fla.  492. 

All  other  property  of  a  railroad  company, 
within  the  limits  of  an  incorporated  city  or 
town,  not  required,  by  section  46  of  each  of 
said  acts,  to  be  assessed  by  the  comptroller, 
can  be  lawfully  assessed  by  the  tax  assessor 
of  said  city  or  town  in  the  manner  pre- 
scribed in  Fla.  Laws,  ch.  3477.  Pensacola  v. 
Louisville  6-  JV.  R.  Co.,  21  Fla.  492. 

255.  Georgia.— Under  the  guaranties 
of  Ga.  Act  of  October  24,  1870,  §§  i,  11, 
authorizing  the  lease  of  the  Western  and 
Atlantic  railroad,  the  company,  though 
made  a  corporation  by  said  act,  by  virtue  of 
the  contract  of  lease  when  accepted  by  the 
governor  and  recorded,  is  not  liable  to  a 
tax  greater  than  one  half  of  one  per  cent, 
on  the  net  income  of  the  company.  By 
section  1 1  of  said  act  it  is  taxable  to  that 
extent.  Western  &•  A.  R.  Co.  v.  State,  54 
Ga.  428.  — Distinguishing  Central  R.  & 
B.  Co.  V.  State,  54  Ga.  401 ;  Union  Branch 
R.  Co.  V.  East  Tenn.  &  G.  R.  Co.,  14  Ga. 
328 ;  West  End  &  A.  St.  R.  Co.  v.  Atlanta  St. 
R.  Co.,  49  Ga.  158.— Followed  in  Atlantic 
&G.  R.  Co.  V.  State,  $s  ^^-  3'^:  Savannah, 
G.  &  N.  A.  R.  Co.  V.  State,  55  Ga.  557. 

When  the  charter  of  a  company  declares 
"  that  said  railroad  and  the  property  of  said 
company  shall  not  be  subject  to  be  taxed 
higher  than  one  half  of  one  Per  centum  on 


TAXATION,  266. 


939 


Co.  V.  Dit- 

C.)  376. 
no  statute 
ssioners  to 
of  railroad 
:omptroller, 
ensacola   v. 

id  ch.  3413. 
ler  with  the 
ber  of  miles 
le  state  the 
vo  or  more 
ir.d  incorpo- 
tioning  the 
ity,  incorpO' 
•op  tionate 
IK  passen- 
jction,  and 
,  and  with- 
)f  towns  and 
id  runs  the 
•  the  general 
porations  to 
nal  property 
V.  Louisville 

ad  company, 
rated  city  or 
,6  of  each  of 
comptroller, 

tax  assessor 
manner  pre- 

Pensacola  v. 

492. 

i  guaranties 
70.  §§  I.  II. 
iVestern  and 
my,  though 
I  by  virtue  of 
epted  by  the 

liable  to  a 
me  per  cent, 
tmpany.  By 
xable  to  that 
V.  State,  54 
Central  R.  & 
nion  Branch 

Co.,  14  Ga. 
V.  Atlanta  St. 
D  IN  Atlantic 
2;  Savannah, 
Ga.  557. 
pany  declares 
jperty  of  said 

to  be  taxed 
<tr  centum  on 


its  annual  income,"  in  measuring  a  tax  im- 
posed on  the  property  of  said  company  the 
per  centum  is  to  be  counted  on  the  gross 
and  not  on  the  net  income.  The  lease  of 
the  road  to  another  company  by  authority 
of  the  legislature  does  not  affect  the  basis 
of  taxation.  The  income  contemplated  by 
the  charter  is  not  the  annual  rental,  but  the 
earnin(^  of  the  road.  The  act  authorizing 
the  lease  not  having  any  provision  in  regard 
to  taxation,  the  limit  in  the  charter  was  not 
lost  or  changed  by  the  lease.  Goldsmith  v. 
Augusta  &>  S.  R.  Co.,  62  Ga.  468. 

The  limit  on  the  taxing  power  extends  to 
all  the  capital  of  said  company,  except  so 
much  thereof  as  was  issued  under  the 
amendment  of  1868  authorizing  the  Clay- 
ton branch  (54  Ga.  423).  The  correct  mode 
of  taxing  the  company's  property  under 
existing  laws  is  to  estimate  all  its  property 
at  its  true  value,  just  as  if  it  belonged  to  a 
natural  person,  and  upon  so  much  of  this 
value  as  equals  the  amount  of  the  whole 
capital  stock  other  than  that  issued  for  the 
Clayton  branch,  assess  at  the  charier  rate 
(that  is,  at  such  percentage  as  will  yield  a 
revenue  to  the  state  equal  to  one  half  of  one 
per  cent,  on  the  net  annual  proceeds  of  all 
the  company's  investments) ;  and  upon  the 
balance  of  such  value,  if  any,  assess  at  the 
general  rate.  If,  however,  the  charter  rate 
thus  arrived  at  should  exceed  the  general 
rate,  then  assess  at  the  latter  upon  the  whole 
value,  as  in  no  case  is  the  general  rate,  that 
is,  the  rate  ad  valorem  imposed  upon  prop- 
erty generally,  to  be  exceeded.  Goldsmith 
V.  Georgia  R.  Co.,  62  Ga.  485. 

Bonds,  notes,  or  other  mere  evidences  of 
debt,  unless  they  form  part  of  the  income 
of  a  road,  are  subject  to  the  ordinary  rates 
of  taxation.  So,  also,  water  craft  belonging 
to  the  company  in  1876  and  1877.  tVr^ht 
V.  Southwestern  R.  Co.,  64  Ga.  783. 

That  portion  of  the  Southwestern  railroad 
extending  from  I/Iacon  to  Fort  Gains, 
known  as  the  main  line,  and  that  portion 
from  Fort  Valley  to  Columbus,  are  subject  to 
a  tax  of  one  half  of  one  per  cent,  on  its  net 
annual  income,  and  not  to  an  ad  valorem 
tax  imposed  upon  property  of  citizens  of 
the  state  under  general  laws.  That  portion 
of  the  road  which  lies  between  Americus 
and  Albany,  and  which  became  a  part  of 
the  road  by  purchase,  under  Georgia  Act  of 
1859;  that  portion  known  as  the  Arlington 
branch,  extending  from  Albany  to  Blakely ; 
and  that  portion  known  as  the  Cuthbcrt 


branch,  extending  from  Cuthbert  Junction 
to  Eufaula,  are  subject  to  an  ad  valorem  tax. 
State  V.  Southwestern  R.  Co.,  70  Ga.  11. 

The  mere  receipt  by  the  comptroller-gen- 
eral for  a  certain  sum  of  money  from  the 
attorney-general  as  taxes  on  the  road,  with 
a  return  of  the  company  of  a  valuation  of 
the  section  subject  to  taxation— A^/</,  no 
evidence  that  the  comptroller-general  knew 
of  a  settlement  of  the  taxes  on  a  certain 
basis  between  the  attorney-general  and  the 
attorney  of  the  company,  so  that  he  could 
have  ratified  the  assessment.  State  v.  South' 
western  R.  Co.,  70  Ga.  11. 

A  defendant  in  an  execution  for  taxes  hav- 
ing been  relieved  as  to  two-thirds  of  its 
property  from  an  ad  valorem  tax,  and  hav- 
ing neglected  to  make  a  new  return — held, 
that  the  comptroller-general  was  authorized 
to  assess  the  portion  subject  to  the  tax  from 
the  best  information  he  could  obtain.  State 
v.  Southwestern  R.  Co.,  70  Ga.  11, 

Ga.  Act  of  1874  is  exhaustive  as  to  the 
method  of  collecting  state  taxes  on  railroad 
property  and  of  having  the  same  returned 
with  a  view  to  the  laying  of  taxes  by  the 
comptroller-general.  Hence  the  return 
should  specify  the  several  sorts  of  property, 
so  that  the  kind  appurtenant  and  necessary 
to  the  company  for  railroad  purposes  should 
bear  only  the  rate  of  taxation  fixed  by  the 
charter,  and  other  property,  not  so  appurte- 
nant and  necessary,  should  be  taxed  as  that 
of  all  other  persons;  the  entire  state  tax 
being  levied  by  the  comptroller-general. 
Savannah,  F.  &*  W.  R.  Co.  v.  Morion,  71  Ga. 
24.— Followed  in  Atlanta  v.  Georgia  Pac. 
R.  Co.,  74  Ga.  16. 

As  respects  railroad  companies  having  no 
exemption,  a  statute  is  not  unconstitutional 
which  provides  for  taxing  railroad  property 
for  county  purposes  at  the  regular  rate  ad 
valorem  which  is  levied  by  the  county  au- 
thorities on  other  property,  each  county 
through  which  a  road  runs  being  allowed 
to  tax  at  that  rate  all  the  company's  prop- 
erty, real  and  personal,  located  in  that 
county,and,  in  addition  thereto, its  due  pro- 
portion of  the  rolling  stock  and  other  float- 
ing or  unlocated  property  of  the  company — 
that  is,  a  proportion  corresponding  to  the 
ratio  between  the  company's  property,  real 
and  personal,  located  in  the  given  county, 
and  the  aggregate  of  its  located  'property  in 
all  the  counties  through  which  the  road 
runs.  Columbus  Southern  R.  Co.  v.  Wright, 
54  Am.  3^  Eng,  R.  Cas.  255,  89  Ga.  574,  15 


M  ''i 


940 


TAXATION,  256,  267. 


?'l  ( 


U' 


•3»:ir!:';::::; 


If  iM     1  ji  ift"  •     •* 


i     I 


.S.  £".  /?//.  393.— Reviewing  Atlanta  &  F. 
R.  Co,  V.  Wright,  87  Ga.  487.— Followed 
IN  Georgia  Midland  &  G.  R.  Co.  v.  State, 
89  Ga.  597,  15  S.  E.  Rep.  301. 

Ga.  Act  of  Oct.  16,  1889,  relating  to  tax- 
ing railroads,  neither  imposes  a  state  tax 
for  county  purposes  nor  attempts  to  levy 
county  taxes  directly  by  the  state.  It  pro- 
vides for  taxing  railroads  for  county  pur- 
poses by  and  through  the  action  of  the 
county  authorities,  the  rate  in  each  county 
being  fixed  by  such  authorities,  and  being 
the  same  for  all  kinds  of  property.  That 
different  counties  fix  different  rates  is  of  no 
consequence,  one  and  the  same  rate  only 
being  applied  to  property  located  in  a 
given  county.  Columbus  Southern  R,  Co.  v. 
Wright,  54  Am.  &•  Eng.  R.  Cas.  255,  89 
Ga.  574,  15  5.  £■.  Rep.  293.— Followed  in 
Georgia  Midland  &  G.  R.  Co.  v.  State,  89 
Ga.  597,  15  S.  E.  Rep.  301, 

256.  Idaho. — Where  machine  and  re- 
pair shops  are  situate  upon  lands  other 
than  the  right  of  way,  but  are  connected 
with  the  main  line  by  a  side  track,  under 
Idaho  Rev.  St.  §  1463  they  should  be  as- 
sessed by  the  local  assessor  rather  than  by 
the  territorial  board  of  equalization.  Oregon 
Short  Line  R.  Co.  v.  Yeates,  33  Am,  &*  Eng. 
R.  Cas.  481,  2  /(faho  365,  17  Pac.  Rep.  457. 

257.  Illinois. —(t)  Constitutional  requi- 
site as  to  equal  taxation. — The  constitutional 
provision  requiring  equality  of  taxation  ap- 
plies to  special  assessments  for  public  im- 
provements, so  the  assessments  must  be 
distributed  in  the  ratio  of  benefits.  Chicago 
v.  Baer,  41  III.  306.  —  Distinguished  in 
Chicago  V.  Sheldon,  9  Wall.  (U.  S.)  50, 

If  the  law  is  not  strictly  observed  in  the 
case  ot  individuals,  and  their  property  is  not 
assessed  at  its  actual  value,  the  property  of 
a  corporation  situate  in  the  same  county 
should  not  be  assessed  at  a  greater  propor- 
tional value  than  that  of  individuals,  even 
though  the  enhanced  assessment  is  not  the 
actual  cash  value  of  the  property  of  such 
corporation.  But  one  county  does  not  fur- 
nish a  rule  for  another,  in  regard  to  the 
proportion  of  the  value  of  property  which 
shall  be  taken  as  the  basis  for  assessment. 
Chicago  &•  N.  W.  R.  Co.  v.  Boone  County 
Sup'rs,  44  ///.  240.  —  Following  Bureau 
County  Sup'rs  v.  Chicago,  B.  &  Q.  R.  Co., 
44  111.  229.— Distinguished  in  Illinois  & 
St.  L.  R.  &  C.  Co.  V.  Stookey,  31  Am.  & 
Eng.  R.  Cas.  479.  "»  HI.  358,  13  N.  E. 
Rep.  516,  II  West,  Rep.  614. 


Where  the  property  belonging  to  indi- 
viduals in  a  county  has  been  assessed  at 
less  than  its  actual  value,  the  constitutional 
rule  of  uniformity  forbids  that  the  property 
of  a  railroad  in  such  county  should  be  as- 
sessed upon  any  greater  per  cent,  of  its 
value  than  that  of  individuals.  Burtau 
County  Sup'rs  v.  Chicago,  B.  A*  Q.  R.  Co., 
44  ///.  229.— Distinguished  in  Illinois  & 
St.  L.  R.  &  C.  Co.  V.  Stookey,  31  Am.  & 
Eng.  R.  Cas.  479.  122  III.  358,  13  N,  E. 
Rep.  516,  II  West.  Rep.  614.  Followed 
in  Chicago  &  N.  W.  R.  Co.  v.  Boone  County 
Sup'rs,  44  III.  240. 

Under  the  constitutional  provision  re- 
quiring that  taxes  shall  be  uniform,  where 
the  property  belonging  to  individuals  in  a 
county  has  been  assessed  at  less  than  its 
actual  value,  railroad  property  in  the  same 
county  must  not  be  assessed  at  any  greater 
per  cent,  of  its  value.  Chicago  &*  A.  R.  Co. 
V.  Livingston  County  SupVs,  68  ///.  458. 

The  state  board  of  equalization  having 
made  an  assessment  of  railroad  property  at 
about  its  cash  value,  the  local  officer  ex- 
tended the  tax  upon  the  basis  of  such  valu- 
ation. The  other  property  in  the  same 
locality  was  assessed  for  the  same  year,  by 
the  local  assessor,  at  only  about  one  third  of 
its  cash  value.  The  company  sought  to  en- 
join the  collection  of  so  much  of  the  tax  as 
resulted  from  the  excess  in  valuation  of  its 
property  over  that  of  individuals.  The  con- 
tention of  the  company  was  that  by  reason 
of  the  unequal  valuation  it  would  be  re- 
quired to  pay  a  tax  largely  in  excess,  in 
comparing  actual  values,  of  individuals  in 
the  same  locality,  and  this  in  violation  of 
the  rule  of  uniformity  prescribed  in  the 
Constitution.  But  the  relief  sought  was 
denied.  Illinois  &*  St.  L.  R.  &*  C.  Co.  v. 
Stookey,  31  Aw.  &*  Eng.  R.  Cas.  479,  122  ///. 
358,  13  N.  E.  Rep.  516,  II  IVest.  Rep.  614. 
—Distinguishing  Bureau  County  Sup'rs 
V.  Chicago,  B.  &  Q.  R.  Co..  44  111.  229; 
Chicago  &  N.  W.  R.  Co.  v.  Boone  County 
Sup'rs,  44  III.  240. 

The  property  of  the  individuals  was  as- 
sessed by  the  local  assessor,  and  that  of  the 
company  by  the  state  board  of  equalization, 
each  acting  under  a  statute  not  in  conflict 
with  the  Constitution,  and  which  required 
that  all  property  should  be  assessed  at  its 
fair  cash  value.  Held,  that  the  mere  fact 
that  the  local  assessor  did  not  comply  with 
the  law  in  that  regard  could  not  operate  to 
invalidate  the  assessment  of  the  state  board, 


TAXATION,  a»7. 


941 


ging  to  indi> 

assessed  at 

constitutional 

the  property 

should  be  as- 

cent,  of  its 

uals.    Buriau 

6-  Q.  R.  Co., 

IN  Illinois  & 

jy,  31  Am.  & 

>58,  13  N.   E. 

Followed 

Boone  County 

provision  re- 
niform,  where 
dividuals  in  a 

less  than  its 
y  in  the  same 
at  any  greater 

0  &*  A.  R.  Co. 
8  ///.  458. 
zation  having 
id  property  at 
cal  officer  ex- 

1  of  such  valu- 
in  the  same 
same  year,  by 

!ut  one  third  of 
'  sought  to  en- 
[1  of  the  tax  as 
aluation  of  its 
lals.  The  con- 
that  by  reason 
would  be  re- 
in excess,  in 
individuals  in 
in  violation  of 
icribed  in  the 
f  sought  was 
'.  &*  C.  Co.  v. 
\s.  479,  122  ///. 
Vest.  Rep.  614. 
bounty  Sup'rs 
.  44  III.  329; 
Boone  County 

id  uals  was  as- 
nd  that  of  the 
>f  equalization, 
not  in  conflict 
irhich  required 
assessed  at  its 
the  mere  fact 
>t  comply  with 
not  operate  to 
he  state  board, 


which  was  in  compliance  with  the  law. 
Illinois  6-  St.  L.  R.  &*  C.  Co.  v.  Stookey,  31 
Am.  6-  E»£.  R.  Cas.  479,  122  ///.  358,  13 
N.  E.  Rep.  516,  II  West.  Rep.  614. 

(2)  Assessments  by  state  board  of  equaliza- 
tion, generally. — It  is  neither  in  conflict  with 
the  Constitution  of  Illinois  nor  inequitable 
that  the  entire  taxable  property  of  a  com- 
pany should  be  ascertained  by  a  state  board 
of  equalization,  and  that  the  state,  county, 
and  city  taxes  should  be  collected  within 
each  municipality  on  this  assessment,  in  the 
proportion  which  the  length  of  the  road 
within  such  municipality  bears  to  the  whole 
length  of  the  road  within  the  state.  And 
the  action  of  the  board  of  equalization,  in 
increasing  the  assessed  value  of  the  prop- 
erty of  a  railroad  company  or  an  individual, 
above  the  return  made  to  the  board,  does 
not  require  a  notice  to  the  party  to  make  it 
valid ;  and  the  courts  cannot  substitute 
their  judgment  as  to  such  valuation  for 
that  of  the  board.  Taylor  v.  Secor,  92  U. 
S.  575.— Followed  in  St.  Louis,  V.  &  T. 
H.  R.  Co.  V.  Surrell,  88  111.  535,  Quoted 
IN  Alexandria  C,  R.  &  B.  Co.  v.  District  of 
Columbia,  7  Am.  &  Eng.  R.  Cas.  325,  i 
Mackey  (D.  C.)  217;  Franklin  County  v. 
Nashville,  C.  &  St.  L.  R.  Co.,  17  Am.  &  Eng. 
R.  Cas.  445,  12  Lea  (Tenn.)  521 ;  Hannibal  & 
St.  J.  R.  Co.  V.  State  Board  of  Equalization, 
64  Mo.  294.  Reviewed  in  Huntington  v. 
Palmer,  7  Sawy.  (U.  S.)  355, 8  Fed.  Rep.  449. 

Under  111.  Act  of  1872,  providing  for  the 
assessment  of  property,  and  for  the  collec- 
tion of  taxes,  an  assessment  by  the  state 
board  of  equalization  upon  the  capital  stock 
and  franchises  of  a  railroad  of  that  state, 
though  leased  and  managed  by  a  company 
in  an  adjoining  state,  assigning  to  each 
county  on  the  line  of  the  road  such  propor- 
tion of  the  assessments  as  the  length  of 
line  in  such  county  bears  to  the  entire 
length  of  the  road —A^W,  valid.  Indianap- 
olis &*  St.  L.  R.  Co.  v.  Vance,  96  U.  S.  450. 

111.  Consolidated  Revenue  Act  of  1872, 
§  3,  requiring  that  the  capital  stock  of  all 
companies  and  associations  then  or  there- 
after created  under  the  laws  of  the  state 
shall  be  so  valued  by  the  state  board  of 
equalization  as  to  ascertain  and  determine 
respectively  the  fair  cash  value  of  such 
stock,  including  the  franchise,  over  and 
above  the  assessed  value  of  the  tangible 
property  of  such  company  or  association, 
is  valid.  Porter  v.  Rockford,  R.  I.  6-  St. 
L.  R.  Co.,  76  ///.  561.— Quoted  in  Cleve- 


land, C,  C.  &  St.  L.  R.  Co.  V,  Backus,  133 
Ind.  513  ;  Pittsburgh,  C„  C.  &  St.  L.  R.  Co. 
V.  Backus,  133  Ind.  625. 

The  power  given  to  the  state  board  of 
equalization  to  "adopt  such  rules  and  prin- 
ciples for  ascertaining  the  fair  cash  value  of 
the  capital  stock  of  corporations  as  to  it 
may  seem  equitable  and  just"  is  not  a  dele- 
gation of  legislative  powr,  and  does  not 
therefore  render  the  act  unconstitutional. 
Porter  v.  Rockford,  R.  I.  &*  St.  L.  R.  Co.,  76 
///.  561.— Followed  in  St.  Louis,  V.  4  T. 
H.  R.  Co.  V.  Surrell,  88  III.  535. 

A  cc.Tipany  returned  its  capital  stock  as 
of  no  value,  and  sent  to  the  state  board 
of  equalization  an  attorney  who  made  a 
statement  to  that  effect.  The  board  prom- 
ised the  attorney  that  if  it  should  not 
be  satisfied  with  his  statement,  it  would 
notify  him,  but  failed  to  do  so,  and  assessed 
the  capital  stock  at  $5000,  but  upon  what 
evidence,  if  any,  did  not  appear.  Held,  that 
the  bad  faith  of  the  board  in  not  keep- 
ing its  promise  did  not  render  the  assess- 
ment fraudulent.  In  the  absence  of  proof 
to  the  contrary  it  will  be  presumed  that  the 
board  acted  upon  sufficient  evidence  to 
justify  its  action.  La  Salle  &*  P.  H.&*  D, 
R.  Co.  V.  Donoghue,  127  ///.  27,  18  N.  E. 
Rep.  827. 

The  provisions  of  III.  Revenue  Act,  §§  ;2, 
43,  44,  and  109,  are  intended  to  conirol 
and  direct  the  state  board  of  equalizatiot.  in 
making  the  assessment  of  railroad  tracks  and 
rolling  stock,  and  the  county  clerk  in  dis- 
tributing the  amount  assessed  on  railroad 
property  in  his  county,  among  the  various 
municipalities  and  taxing  districts  therein. 
Wabash,  St.  L.  &*  P.  R.  Co.  v.  People  ex 
rel,  137  ///.  181,  27  A^.  E.  Rep.  456. 

In  the  absence  of  anything  showing  the 
contrary,  it  will  be  presumed  that  these 
officers  discharged  their  duties;  that  in 
making  an  assessment  the  board  properly 
described  the  railroad  track,  as  required  by 
section  42  of  the  act ;  and  that  the  county 
clerk  certified  to  the  several  road  districts 
their  proportionate  and  distributive  share 
of  the  assessed  value  of  such  railroad  track 
and  rolling  stock  as  subject  to  taxation 
therein.  Wabash,  St.  L.  &*  P.  R.  Co.  v.  Peo- 
ple ex  rel.   137  ///.  181,  27  A';  £".  Rep.  456. 

(3)  What  property  is  to  be  assessed  by  the 
board.— Land  constituting  the  right  of  way 
of  a  railroad,  with  the  ties,  rails,  etc.,  in 
place  on  the  track,  and  turnouts,  depot 
grounds,  and  buildings  on  the  same,  are 


•  , 


\'v 


943 


TAXATION,  267. 


r 


I  !  I,   i',! 


,  i 


^_    .,,.1  •■•.•' 
IS  "' 


-Mt.8'  ■•;;iiiii': 

ff^  ■     'In!* 


r.iii»"' 


real  estate;  but  rolling  stock  is  made  by 
statute,  for  the  purposes  of  taxation,  per- 
sonal  property.  C/nion  Trust  Co.  v.  Wtber, 
3  Am.  &*  Ettg.  R.  Cas.  583,  96  ///.  346. 

Under  the  Constitution,  art.  9,  §  i,  an 
as8::ssment  for  taxation  must  be  made  by 
the  person  or  persons  to  be  elected  or  ap- 
pointed  in  the  manner  in  which  the  general 
assembly  shall  direct,  and  not  otherwise. 
Therefore  an  assessment  made  by  a  person 
or  persons  not  authorized  by  law  is  void, 
and  no  judgment  can  be  rendered  for  the 
taxes  levied  on  such  assessment.  Chicago 
6*  A.  R.  Co.  V.  People  ex  rel.,  5  Am.  &*  Ettg. 
R.  Cat.  94,  98  ///.  350. 

Under  the  Revenue  Law  the  exclusive 
power  to  assess  railroad  tracks  and  rolling 
stock  is  conferred  upon  the  state  board  of 
equalization,  and  therefore  an  assessment  of 
property  used  as  railroad  track,  by  the  local 
township  assessor,  is  void.  Chicago  &*  A. 
R.  Co.  v.  People  ex  rel„  5  Am.  &*  Ettg.  R. 
Cas.  94,  98  ///.  350. 

Land  held  and  in  actual  use  by  a  company 
for  side  tracks,  switches,  and  turnouts  must 
be  regarded,  within  the  meaning  of  the 
Revenue  Law,  as  a  part  of  the  right  of  way 
of  the  company,  notwithstanding  it  may 
have  machine  shops,  depots,  roundhouses, 
and  other  superstructures  thereon,  neces* 
sary  for  the  successful  use  of  the  road.  Chi- 
cago &»  A.  R.  Co.  V.  People  ex  rel,,  5  Am.  &* 
Ettg.  R. Cas.  9^,  9illl.  350.— Distinguished 
IN  Indianapolis  &  St.  L.  R.  Co.  v.  People, 
41  Am.  &  Eng.  R.  Cas.  634,  130  111.  62,  22 
N.  E.  Rep.  854. 

Two  lots  of  a  company  contained  about 
33  acres  after  deducting  a  strip  100  feet 
wide  running  through  them  occupied  as  the 
main  track.  The  32  acres  were  covered  by 
tracks  used  all  the  time  for  the  purpose  of 
running  cars  and  engines'  over  them,  and 
for  switching  cars,  making  up  trains,  load* 
ing  and  unload  ing  cars,  and  for  various  other 
purposes  in  the  transaction  of  the  com- 
pany's business.  The  ground  was  also  used 
for  car  shops,  machine  shops,  blacksmith 
shops,  foundry,  roundhouses,  freight  depot, 
stock  yards,  paint  shops,  etc.  Held,  that 
the  whole  of  the  lots  constituted  a  part  of 
the  company's  right  of  way,  and  its  railroad 
track,  and  as  such  could  not  legally  be  as- 
sessed by  the  local  township  assessors.  But 
land  cannot  be  regarded  as  right  of  way 
merely  because  one  or  even  two  side  tracks 
may  be  constructed  upon  it.  The  land 
must  be.  in  fact,  appropriated  for  the  pur- 


pose of  the  right  of  way.  Chicago  A*  A.  R, 
Co.  V.  People  ex  rel.,  $  Am.  &*  Ettg.  R.  Cas. 
94, 98  ///.  350.— Distinguished  in  Chicago, 
B.  &  Q.  R.  Co.  V.  People  ex  rel.,  136  III.  660. 
Followed  in  Chicago  &  A.  R.  Co.  v.  Peo- 
ple ex  rel.,  99  III.  464.  Quoted  in  Pfaff  v. 
Terre  Haute  &  I.  R.  Co.,  29  Am.  A  Eng.  R. 
Cas.  181, 108  Ind.  144;  Chicago  &  A.  R.  Co. 
V.  People  ex  rel.,  41  Am.  &  Eng.  R.  Cas.  629, 
129  111.  571,  32  N.  E.  Rep.  864, 25  N.  E.  Rep.  5. 

Rolling  stock  and  railway  track,  as  well 
as  capital  stock  of  railway  companies,  are  to 
be  assessed  by  the  state  board  of  equaliza- 
tion ;  but  other  railway  property  is  to  be 
assessed  by  the  local  assessors.  People  ex 
rel.  V.  Chicago  &*  W.  I.  R.  Co.,  24  Am.  &• 
Eng.  R.  Cas.  612,  116  ///.  181,  4  N.  E.  Refi. 
480.— Distinguished  in  Indianapolis  &  St. 
L.  R.  Co.  V.  People,  41  Am.  &  Eng.  R.  Cas. 
634,  130  111.  62,  22  N.  E.  Rep.  854. 

Fixed  and  stationary  machinery  attached 
to  railroad  shops  on  the  company's  right  of 
way  are  part  of  the  real  estate  or  railroad 
track,  and  as  such  are  assessable  only  by  the 
state  board.  But  a  steam  engine  and  boiler 
not  permanently  attached  to  the  realty  are 
personal  property,  and  are  properly  assessed 
for  taxation  by  the  local  assessor.  Peoria, 
D.  &»  E.  R.  Co.  V.  Goar,  29  Am.  &•  Ettg.  R. 
Cas.  189,  118  ///.  134,  8  N.  E.  Rep.  682. 

Land  held  by  a  company  ^or  right  of  way 
is  required  by  law  to  be  assessed  for  taxa- 
tion by  the  state  board,  and  not  by  the  local 
assessor.  This  rule  is  not  limited  to  the 
right  of  way  of  the  main  track,  but  em« 
braces  the  right  of  way  of  all  the  side 
tracks,  switches,  and  turnouts  as  well.  An 
assessment  of  such  property  by  the  local 
assessor  is  void.  Chicago  Sr*  A.  R.  Co.  v. 
People  ex  rel.,  41  Am.  A*  Ettg.  R.  Cas.  629, 
129  ///.  571,  22  N.  E.  Rep.  864,  25  N.  E. 
Rep.  s. 

(4)  Railroad  track. — Town  lots  used  by  a 
company  as  right  of  way,  and  assessed  un- 
der  the  denomination  of  "  railroad  track," 
are  only  liable  for  taxes  as  right  of  way,  and 
cannot  be  taxed  both  as  right  of  way  and  as 
tow  .  or  city  lots ;  z.i\(x  where  a  tax  is  levied 
on  such  property  both  as  railroad  track  and 
as  town  and  city  lots,  the  collection  of  the 
tax  levied  as  upon  town  and  city  lots  should 
be  enjoined.  Chicago  fi-  N.  W.  R.  Co.  v. 
Miller,  72  ///.  144.— DISTINGUISHED  IN  Chi- 
cago, B.  &  Q.  R.  Co.  V.  People  ex  rel.,  136  III. 
660 ;  Indianapolis  &  St.  L.  R.  Co.  v.  Peo- 
ple, 41  Am.  &  Eng.  R.  Cas.  634, 130  III.  63, 
23  N.  E.  Rep.  854.    Quoted  in  Chicago  ft 


TAXATION,  2»7. 


943 


^ago  *•  A.  R, 
Eng.  R.  Cas. 
)  IN  Chicago, 
.,  136  III.  660. 
..  Co.  V.  Peo- 
D  IN  Pfaff  V, 
n.  &  Eng.  R. 
>  &  A.  R.  Co. 
R.  Cas.  629, 
N.  E.  Rep.  5. 
rack,  as  well 
panics,  are  to 
of  equaliza« 
rty  is  to  be 
.    People  ex 
,  24  Am.  &* 
N.  E.  Hep, 
lapolis  &  St. 
Sng.  R.  Cas. 
54. 

ery  attached 
ly's  right  of 
or  railroad 
only  by  the 
e  and  boiler 
le  realty  are 
;rly  assessed 
or.    Peoria, 
.  &*  Eng.  Jt. 
fp.  682. 
right  of  way 
ed  for  taxa- 
by  the  local 
lited  to  the 
:k.  but  em- 
ill  the  side 
s  well.    An 
>y  the  local 
t  R.  Co.  V. 
R.  Cas.  629, 
\,  25  N.  E. 

ts  used  by  a 
issessed  un> 
oad  track," 
of  way,  and 
\  way  and  as 
ax  is  levied 
d  track  and 
tion  of  the 
'lots  should 
':  R.  Co.  r. 
lED  IN  Chi- 
;rel.,  136111. 
Zo.  V.  Peo- 
130  III.  62, 
Chicago  ft 


A.  R.  Co.  V.  People  ex  rel.,  41  Am.  &  Eng. 
R.  Cas.  629,  129  111.  571,  22  N.  E.  Rep.  864, 
25  N.  E.  Rep.  S- 

Railroad  track  must  be  assessed  for  taxa* 
tion  by  the  state  board  of  equalization,  but 
all  other  real  estate  of  railroad  companies, 
including  the  stations  and  other  buildings 
and  structures  thereon,  must  be  assessed  by 
the  local  assessors.  Chicago,  B.  &>  Q.  R. 
Co.  V.  Paddock,  71  III.  616. 

Lands  held  by  a  company  for  a  right  of 
way,  when  the  road  is  located  and  is  in 
process  of  construction,  are  required  to  be 
returned  as  "  railroad  track";  and  this  is  so 
though  the  lands  are  at  the  time  occupied 
by  tenants.  Actual  use  for  railroad  pur- 
poses is  not  essential  to  the  classification  of 
lands  as  "railroad  track."  People  ex  rel. 
V.  Chicago  &-  fV.  I.  R.  Co.,  24  Am.  &*  Eng. 
R.  Cas.  612,  1 16  ///.  181,  4  A';  E.  R.;p.  480.— 
Distinguished  in  Chicago,  B.  &  Q.  R. 
Co.  V.  People  ex  rel.,  136  111.  660. 

A  bridge  across  a  navigable  stream  form- 
ing the  boundary  between  Illinois  and 
another  state,  constructed  and  used  exclu- 
sively  by  a  company  as  a  part  of  its  con- 
tinuous line  of  railroad,  for  the  purposes  of 
taxation  comes  within  the  denomination  of 
"  railroad  track,"  and  as  such  is  to  be 
assessed  only  by  the  state  board.  Its  assess- 
ment by  the  local  assessor  is  without  warrant 
of  law,  and  taxes  extended  thereon  may  be 
enjoined.  Anderson  v.  Chicago,  B.  &•  Q.  R. 
Co.,  25  Am.  &>  Eng.  R.  Cas.  522,  117  ///,  26, 
7  N.  E.  Rep.  129. —  Reviewed  in  Cass 
County  V.Chicago,  B.  &  Q.  R.  Co.,  25  Neb. 
348,  2  L.  R.  A.  188,  41  N.  W.  Rep.  246. 

111.  Act  of  1873,  providing  that  "all  bridge 
structures  across  any  navigable  stream  form- 
ing the  boundary  line  between  the  state  of 
Illinois  and  any  other  state  shall  be  assessed 
by  the  township  or  other  assessor  in  the 
county  where  the  same  is  located,  as  real 
estate,"  was  not  intended  to  change  the 
method  of  taxing  railroad  property  or  the 
mode  of  assessing  it,  but  to  apply  to  bridges 
not  constituting  a  railroad  track  exclusively, 
and  to  make  such  structures  real  estate,  for 
the  purpose  of  collecting  taxes  thereon. 
Anderson  v.  Chicago,  B.  &*  Q.  R.  Co.,  25  Am. 
6-  Eng.  R.  Cas.  522,  117  ///.  26,  7  N.  E. 
Rep.  129. 

On  the  question  of  the  proper  authority 
to  assess  for  taxation  a  bridge  built  by  a 
company,  the  question  whether  the  com- 
pany exceeded  its  chartered  powers  in 
building  the  bridge  is  wholly  immaterial. 


Anderson  v.  Chicago,  B.  &*  Q.  R.  Co.,  25  Am. 
5-  Eng.  R.  Cas.  522,  117  ///.  26,  7  A^  E. 
Rep.  129. 

Under  Illinois  Revenue  Law,  the  exclusive 
power  to  assess  "railroad  track,"  which  in- 
cludes right  of  way,  with  the  superstruc- 
tures o»  main,  side,  or  second  track  and 
turnouts,  and  the  station  and  improvements 
thereon,  is  conferred  upon  the  state  board 
of  equalization,  and  therefore  an  assess- 
ment of  the  property  used  as  railroad  track, 
by  a  local  or  township  assessor,  is  void. 
Peoria,  D.  &»  E.  R.  Co.  v.  Goar.  29  Am.  4- 
Eng.  R.  Cas.  189,  118  ///.  134,  8  A'.  E.  Rep. 
682.— Distinguished  in  Indianapolis  & 
St.  L.  R.  Co.  V.  People,  41  Am.  &  Eng.  R. 
Cas.  634,  130  111.  62,  22  N.  E.  Rep.  854. 
Quoted  in  Chicago  &  A.  R.  Co.  v.  People 
ex  rel.,  41  Am.  &  Eng.  R.  Cas.  629,  129  III. 
571,  22  N.  E.  Rep.  864,  25  N.  E.  Rep.  5. 

A  side  track  leading  from  the  main  track 
to  a  stone  quarry,  and  used  for  the  purpose 
of  procuring  stone  for  ballasting  the  road, 
for  the  purposes  of  taxation  must  be  re- 
garded as  "  railroad  track."  (Schofield  and 
McGruder,  JJ.,  dissenting.)  Chicago  &*  A. 
R.  Co.  V.  People  ex  rel.,  41  Am.  &*  Eng.  R, 
Cas.  629,  129  ///.  571,  22  A';  E.  Rep.  864,  25 
A^.  E.  Rep.  $.— Quoting  Chicago  &  A.  R. 
Co.  V.  People  ex  rel.,  98  111.  354 ;  Chicago  & 
N.  W.  R.  Co.  V.  Miller,  72  111.  144;  Chicago 
&  A.  R.  Co.  V.  People  ex  rel.  99  111.  466; 
Peoria.  D.  &  E.  R.  Co.  v.  Goar,  118  111.  136. 
—Distinguished  in  Chicago.  B.  &  Q.  R. 
Co.  V.  People  ex  rel.,  136  111.  660. 

A  company  returned  various  schedules  of 
its  property  for  taxation.  Schedule  "A," 
showing  the  property  designated  as  "  rail- 
road track,"  failed  to  include  eighteen  acres 
assessed  by  the  assessor,  and  taxes  were 
levied  thereon.  There  was  nothing  to  show 
that  the  track  so  omitted  was  not  included 
in  "  D,"  the  schedule  of  all  real  estate  other 
than  railroad  track.  Held,  that  it  must 
be  presumed  that  such  land  was  returned 
as  real  estate  other  than  railroad  track. 
Indianapolis  &*  St.  L.  R.  Co.  v.  People,  41 
Am.  6-  Eng,  R.  Cas.  634,  130  ///.  62,  22 
N.  E.  Rep.  854. 

A  company  having  failed  to  return  a 
strip  of  its  land  as  "railroad  track,"  the 
land  was  assessed  as  real  estate  other  than 
railroad  track,  and  not  otherwise.  On  ap- 
plication for  judgment  for  the  taxes,  the 
company  was  estopped  to  prove  that  in  fact 
it  was  a  part  of  the  track.  Indianapolis  &* 
St,  L.  R,  C0,  V.  Pt^h,  41  Am.  6«  Et^g,  R, 


944 


TAXATION,  257. 


II ; 


*!i 


'r 


::   (jl    ' 


in 


■M. 


'  IS?'*:*' 


I   ! 


Cat.  634.  130  ///.  62,  32  A^.  E.  R»p.  854.— 
DiSTiNOUiSHiNO  Chicago  &  N.  W.  R.  Co. 
V.  Miller.  72  111.  147 ;  Chicago  &  A.  R.  Co. 
V.  People  ex  rei..  98  III.  351 ;  People  ex  rel. 
V.  Chicago  &  W.  I.  R.  Co..  116  III.  181  ; 
Peoria,  D.  &  E.  R.  Co.  v.  Goar,  118  III.  134. 

Lots  and  parts  of  lots  bought  by  a  com- 
pany near  its  right  of  way,  and  intended  to 
be  used  for  tracks  in  the  future,  if  a  pur- 
chase of  the  other  parts  of  the  lots  could  be 
made,  and  which  are  rented  to  tenants  and 
used  for  other  than  railroad  purposes,  are  not 
in  any  sense  a  part  of  such  company's  track. 
as  defined  by  section  42  of  the  Revenue  Law. 
Chicago,  B.  &*  Q.  H.  Co.  v.  Peofile  ex  rel.,  136 
///.  660,  37  N.  E.  Rep.  200.— Distinguish- 
ing Chicago  &  N.  W.  R.  Co.  v.  Miller,  72 
III.  144 ;  Chicago  &  A.  R.  Co.  v.  People  ex 
rel.,  98  III.  350 ;  People  ex  rel.  v,  Chicago  & 
W.  I.  R.  Co.,  116  111.  181 :  Chicago  &  A.  R. 
Co.  V.  People  ex  rel.,  129  111.  571. 

Where  stations  and  other  improvements 
are  erected  on  the  right  of  way  of  a  com- 
pany, they  may  be  regarded  m  a  part  of  the 
track,  within  the  meaning  of  section  43  of 
the  Revenue  Act ;  but  a  station  erected  on 
land  which  is  not  a  part  of  the  right  of  way 
is  not  necessarily  a  part  of  the  railroad 
track.  The  construction  by  a  railway  com- 
pany of  its  passenger  station  on  land  adjoin- 
ing its  right  of  way  will  not,  ipso  facto,  have 
the  eflect  of  constituting  such  land  a  part  of 
the  right  of  way.  Chicago,  B.  &:  Q.  B.  Co.  v. 
Peop/e  ex  rel.,  136  ///.  660.  27  N.  E.  Rep.  200. 

If  a  company  erroneously  schedules  lots 
as  part  of  its  track,  when  in  fact  they  have 
never  been  appropriated  for  such  use.  and 
they  are  assessed  by  the  state  board  as  a 
part  of  the  track,  this  will  not  interfere 
with  the  duty  of  the  local  assessor  to  assess 
the  same,  or  of  the  proper  officers  to  extend 
the  taxes  on  such  local  assessment.  Chi- 
cago, B.  &*  Q.  R.  Co.  v.  People,  136  ///.  660, 
27  JV.  E.  Rep.  200. 

Illinois  statute  of  1873,  relating  to  the 
taxation  of  railroads,  provides  that  in  assess- 
ing a  right  of  way  for  taxation  it  shall 
include  not  only  the  main  and  side  tracks 
and  turnouts,  but  all  stations  and  improve- 
ments thereon.  Plaintifl  company  occupied 
a  strip  of  land  500  feet  wide  and  about  half 
a  mile  long,  with  tha  main  track  running 
through  it,  and  the  remainder  used  for  tide 
tracks,  turnouts,  machine  shops,  and  repair 
shops.  HeU.  that  this  was  properly  included 
in  the  assessment.  Chicago,  R.  I.  &*  P,  R. 
Co.  V.  People  ex  r*l,.i^  III.  App,  468. 


The  statute  divides  the  real  property  of 
railroads  into  two  classes.  "  railroad  track  " 
and  "  all  real  estate  other  than  that  denomi« 
nated  railroad  track."  With  the  first  of 
these  the  town  assessor  has  nothing  to  do. 
The  latter  should  be  assessed  by  him  as 
other  property.  The  strip  of  land  men- 
tioned above,  with  its  buildings  and  im- 
provements, belonged  to  appellant's  right  of 
way,  was  properly  assessed  as  "railroad 
track  "  and  the  assessment  of  the  same  by 
the  town  assessor  under  the  provisions  of 
section  46  was  unauthorized  and  void. 
Chicago,  R.  I.  &•  P.  R.  Co.  v.  People  ex  rel., 
4  ///.  App.  468. 

III.  Revenue  Law.  §  43.  providing  for 
the  listing  and  taxation  of  "  railroad  track" 
in  the  several  counties,  towns,  cities,  etc., 
in  proportion  to  the  length  of  the  main 
track  th«>rein.  has  no  reference  to  the  ascer- 
tainment  of  the  value  of  such  property,  but 
merely  furnishes  the  principle  upon  which 
the  value  when  ascertained  may  be  distrib* 
uted  to  the  various  municipalities  entitled 
to  the  benefit  of  the  same,  and  controls  the 
action  of  the  auditor  and  county  clerk  in 
their  duties  under  section  109.  Chicago,  R.  I. 
6-  P.  R.  Co.  V.  People  ex  rel.,  4  ///.  App.  468. 

(S)  Making  up  the  assessment.— In  assess- 
ing the  value  of  a  railroad,  for  purposes  of 
taxation,  the  inquiry  should  be.  What  is  the 
property  worth,  to  be  used  for  the  purposes 
for  which  it  was  designed,  and  not  for  any 
other  purpose  to  which  it  might  be  applied  ? 
In  such  a  case,  if  the  property  is  devoted  to 
the  use  for  which  it  was  designed,  and  in  a 
condition  to  'produce  its  maximum  income, 
one  very  important  element  for  ascertain- 
ing its  present  value  is  the  amount  of  the 
net  profits.  This,  however,  should  not  be 
the  absolute  standard  of  value.  There 
should  be  taken  in  connection  with  it  the 
inquiry.  What  would  a  prudent  man  give 
for  the  property  as  a  permanent  investment, 
with  a  view  to  present  and  future  income  ? 
State  V.  Illinois  C.  R.  Co.,  27  ///.  64.— Ex- 
plained IN  Chicago  &  N.  W.  R.  Co.  v. 
Boone  County  Sup'rs.  44  III.  240.  Re- 
viewed IN  Louisville  &  N.  R.  Co.  v.  State, 
8  Heisk.  (Tenn.)  663. 

Under  111.  Law  of  1855.  improvements 
made  upon  real  estate  belonging  to  a  rail- 
road, occupied  and  fitted  for  use  as  a  road- 
way, must  be  taken  into  account  in  fixing 
its  value  for  the  purposes  of  taxation.  Chi' 
cago  &*  N,  IV.  R.  Co.  v.  Lee  County  Sup'ri^ 
^Ill.i^i. 


TAXATION,  257. 


MS 


property  of 

road  track  " 

hat  denomi* 

the  first  of 

thing  to  do. 

1  by  him  as 

land  men* 

igs  and  im< 

int's  right  of 

is  "railroad 

the  same  by 

)rovi8ions  of 

and    void. 

^topU  ex  rtl., 

roviding  for 
Iroad  track  " 
,  cities,  etc., 
of  the  main 
to  the  ascer< 
)roperty,  but 

upon  which 
y  be  distrib- 
ities  entitled 

controls  the 
nty  clerk  in 
Chicago,  R.  I. 
'II.  App.  468. 
.—In  assess- 

purposes  of 
,  What  is  the 
the  purposes 

not  for  any 
:  be  applied  ? 
s  devoted  to 
led,  and  in  a 
lum  income, 
}r  ascertain- 
lount  of  the 
ould  not  be 
luc.     There 

with  it  the 
It  man  give 

investment, 
ire  income? 
Ul.  64.-EX- 
'.  R.  Co.  v. 
.  240.  Re- 
Co.  V.  State, 

iprovements 
ng  to  a  rail- 
e  as  a  road- 
int  in  fixing 
ation.  Chi' 
>UHty  Sup'rs, 


III.  Act  of  1855,  which  required  railroads 
to  return  a  schedule  setting  forth  "  the 
actual  value  of  each  lot  or  parcel  uf  land, 
including  the  improvements  thereun,  except 
track  or  superstructure  of  said  road,"  did 
not  require  tlic  value  of  the  improvements 
to  be  set  forth  separately  from  the  land,  but 
the  value  of  the  land  including  the  improve- 
ments. Chicago  &*  A.  A'.  Co.  v.  Livingston 
County  Sup'rs,  68  ///.  458. 

The  valuation  uf  railroad  property  re- 
quired by  the  statute  to  be  furnished  is 
only  evidence  of  value,  and  is  not  neces- 
sarily conclusive  on  the  state  board  of 
equalization  in  making  its  assessment  of 
the  property  for  t;.jj,i.i  >n.  Chicago,  B.  &» 
Q.  R.  Co.  v.  Paddock,  75  ///.  616. 

It  was  ur^cd,  on  bill  to  enjoin  the  collec- 
tion of  a  railway  tax,  that  the  board  of 
equalization  had  included  in  the  assessment 
of  the  capital  stock,  including  the  franciiise, 
debts  which  the  company  owed.  The  evi- 
dence of  this  was  the  resolution  of  the 
board,  declaring  that  the  market  or  fair 
cash  value  of  the  shares  of  capital  stock, 
and  the  market  or  fair  casli  value  of  the 
debt,  excluding  indebtedness  for  current 
expenses,  should  be  added  together,  and 
the  aggregate  should  be  taken  as  the  value 
of  the  capital  stock,  including  the  franchise. 
Held,  that  the  resolution  did  not  show  that 
the  company  was  assessed  with  the  amount 
of  its  debts,  but  that  it  was  a  mode  by 
which  to  approximate  the  value  of  the  capi- 
tal stock,  including  the  franchise.  Porter 
v.  Rock/or d,  R.  I.&'Si.  L.  R.  Co.,  76///.  561. 

It  was  objected  to  an  assessment  of  the 
property  of  a  railway  that  the  valuation  was 
determined  by  a  committee  of  the  state 
board  of  equalization.  Hc/d,  that  as  the 
report  of  the  committee  was  acted  upon  and 
adopted  by  the  board,  it  was  to  be  regarded 
as  having  been  made  by  the  board.  Porter 
v.  Rockford,  R.  I.  &'St.  L.  R.  Co.,  76  ///.  561. 

The  levy  of  corporate  taxes  for  the  years 
1864  to  1869,  inclusive,  cannot  be  extended 
upon  the  valuation  for  the  year  1870,  but 
must  be  extended  upon  the  assessment  for 
the  several  years  for  which  the  levies  were 
made.  The  curative  act  of  1853  does  not 
apply  in  such  a  case.  Lebanon  v.  Ohio  &* 
M.  R.  Co.,  77  ///.  539. 

What  may  be  the  relative  value  of  lands 
in  the  several  counties  over  which  a  rail- 
road is  laid  is  not  a  pertinent  inquiry  in 
assessing  the  track,  as  such,  for  taxation. 
The  track  as  a  whole  is  a  single  property, 
7  D.  R.  D.— 60 


and  it  should  not  be  assessed  upon  any 
higher  valuation  per  mile  in  one  county 
than  in  anotlier,  even  if  its  construction  has 
cost  more  in  some  localities  than  in  others. 
Law  V.  People  ex  rel„  87  ///.  385.  —  Fol- 
lowed IN  Hopkins  V.  Taylor,  87  III.  436, 

The  fact  tha'.  the  board  finds  the  equal- 
ized value  of  the  capital  stock  of  some  com- 
panies not   to  exceed   tlio   equalized  value 

of    tiieir    tangible    proj •",   thus    leaving 

nothing  but  the  latter  upon  which  to  extend 
taxes,  when  such  assessment  is  honestly 
made,  and  with  no  fraudulent  intent,  affords 
no  ground  for  en"  .  ling  the  collctiun  of 
taxes  upon  itnottier  railroad  ^rhich  is 
assessed  for  its  capital  st(<  !:  in  excess  of 
the  value  of  its  tangible  property.  Chicago, 
B.  <S-  Q.  R.  Co.  v.  Siders,  U  III.  320,  21  Am, 
Ry.  Rep.  304. 

Whether  the  valuation  of  railroad  prop- 
erty is  represented  solely  in  the  valuatiun 
of  its  tangible  property,  or  in  the  valuation 
of  its  tangible  property  and  that  of  its  capi- 
tal stock,  cannot  be  regarded  as,  per  si, 
evidence  of  an  unjust  and  fraudulent  dis- 
crimination. Chicago,  B.  6f  Q.  R.  Co.  v. 
Siders,  88  ///.  320,  21  Am.  Ry.  Rep.  304. 

A  company  cannot  be  heard  to  object  to 
the  payment  of  taxes  on  the  ground  that 
the  board  of  equalization  has  failed  to  as- 
sess the  value  of  the  roadbeds  under  the 
rails,  including  embankments,  bridges,  cul- 
verts, etc.,  of  all  companies  i**  the  state,  as 
tangible  property.  Chicago,  B.  &•  Q.  R.  Co. 
V.  Siders,  88  ///.  320,  21  Am.  Ry.  Rep.  304. 

The  board  has  the  power  to  increase  the 
valuation  of  railroad  property  returned  by 
its  ofHcers  without  first  hearing  evidence 
impeaching  the  return.  Such  return  is  not 
conclusive.  St.  Louis,  V.  &■•  T.  H,  R.  Co. 
v.  Surrell,  88  ///.  535,  21  Am.  Ry.  Rep.  356. 
—Following  Porter  v.  Rockford,  R.  I.  & 
St.  L.  R.  Co..  76  III.  564;  State  R.  Tax 
Cases,  92  U.  S.  175. 

It  is  not  essential  that  township  and 
other  assessors  shall  hear  evidence  in  fix- 
ing the  taxable  value  of  railroad  property ; 
they  may  act  upon  their  own  knowledge 
and  judgment,  and  the  same  rule  is  applica- 
ble to  the  state  board.  St.  Louis,  V.  &*  T. 
H.  R.  Co.  v.  Surrell,  88  ///.  535,  21  Am.  Ry. 
Rep.  356. 

The  state  board  found  the  value  of  the 
capital  stock  and  rolling  stock  of  a  corpora- 
tion, operating  its  road  in  this  and  other 
states  by  a  continuous  line,  by  taking  the 
value  of  the  entire  capital  stock  and  all  the 


946 


TAXATION,  267. 


SI 


I  "IB-:*":: 

*      >  ■  f  .r<« 

';i»w  • ,,  •' 

»«♦  •' 

■  f 

i    PN:«:;:?::; 


.1  i 


1  I 


m 


rolling  stock  everywhere,  and  setting  apart  so 
much  of  the  entire  value  of  each,  for  taxa- 
tion in  this  state,  as  the  proportion  of  the 
length  in  this  state  of  its  main  line  bore  to 
the  length  of  the  entire  line  of  the  road. 
HtM,  in  the  absence  of  proof  to  the  con- 
trary, that  the  mode  adopted  was  fair  and 
reasonable,  and  that  this  was  not  an  assess- 
ment of  any  part  of  its  property  in  the  other 
states.  OAt'o  &*  M.  K.  Co,  v.  Weber,  5  Am. 
6*  Eng.  R.  Cas.  loi,  96  ///.  443. —  Fol- 
lowed IN  Wilson  V.  Weber,  96  111.  454. 

A  rule  adopted  by  the  board,  for  the 
assessment  of  the  capital  stock  of  corpora- 
tions, was  that  the  value  of  all  shares  of  stock, 
and  the  value  of  all  debts,  excluding  cur- 
rent expenses,  should  be  added  to  ascertain 
the  fair  cash  value  of  the  capital  stock,  or 
entire  property,  including  franchises,  and 
that  from  this  sum  should  be  deducted  the 
value  of  all  tangible  property,  and  that  the 
remainder  should  be  taken  as  the  fair  cash 
value  to  be  assessed  for  taxation.  On  an 
application  *.o  enjoin  the  collection  of  a  tax, 
when  equalized,  by  the  board,  with  other 
property,  the  rule  was  sustained.  Ohio  &* 
M.  H.  Co.  V.  Weber,  5  Am.  6-  Eng.  R.  Cas. 
101,  96  ///.  443. 

Where  a  company  fails  to  make  a  return 
of  its  property  to  the  auditor,  as  required 
by  law,  and  the  state  board  has  before  it  a 
return  made  to  the  county  clerk  by  an  agent 
of  the  contractors  who  built  the  road,  which 
return  is  not  shown  to  be  untrue,  the  com- 
pany cannot  defeat  the  collection  of  a  tax 
levied  upon  such  a  basis  on  the  charge  that 
the  board  did  not  ascertain  the  necessary 
facts  upon  which  to  fix  the  proper  valuation. 
Union  Trust  Co.  v.  Weber,  3  Am.  &-  Eng. 
R.  Cas.  583,  96  ///.  346. 

The  taxation  of  a  road  only  twelve  miles 
long,  connecting  St.  Louis  and  East  St. 
Louis  by  bridge,  at  a  rate  five  times  as  high 
as  any  other  road  running  into  St.  Louis 
was  held  not  to  show  fraud  where  it  ap- 
peared that  the  road,  including  a  relay  depot 
and  network  of  tracks  surrounding  it,  was 
all  within  the  limits  of  East  St,  Louis,  and 
that  it  did  all  the  railroad  traffic  between 
East  St.  Louis  and  St.  Louis,  being  merely 
a  terminal  railroad.  St.  Louis  B.  &*  T.  R. 
Co.  V.  People  ex  rel.,  39  Am.  &*  Eng.  R,  Cas, 
562,  127  ///.  627,  21  N.  E.  Rep.  348. 

(6)  Assessing  leased  road. — Where  a  com- 
pany is  operating  leased  roads  as  a  part  of 
it!  line,  it  is  proper  not  only  to  assess  the 
value  of  the  tangible  property  of  such  leased 


roads  against  the  lessee  road,  but,  in  dis- 
tributing the  value  of  the  capital  stock  for 
taxation  among  the  different  counties,  the 
leased  roads  are  to  be  considered  as  parts 
of  the  ma'n  line.  Huck  v.  Chicago  &*  A.  R. 
Co.,  86  ///.  352,  17  Am.  Ry.  Rep.  419. 

(7)  Special  assessments. — Commissioners 
appointed  to  make  a  special  pssessment  as- 
sessed  a  block  of  land  belonging  to  a  com- 
pany, except  the  part  occupied  and  used  for 
its  right  of  way.  Two  parcels,  one  on  each 
side  of  the  right  of  way,  were  assessed  sep- 
arately. The  court,  on  the  hearing  of  the 
application  to  confirm  the  assessment,  modi- 
fied the  roll  so  as  to  spread  the  aggregate 
of  the  two  assessments  over  the  whole 
block.  Held,  that  this  was  not  an  assess- 
ment of  any  part  of  the  right  of  way,  and 
that  the  company  had  no  substantial  cause 
of  complaint  cf  the  action  of  the  court. 
Chicago,  R.  I.  &•  P.  R.  Co.  v.  Chicago,  139- 
///.  573.  28  N.  E.  Rep.  iio8. 

In  such  case  it  did  not  appear  that  the 
block  was  assessed  any  more  than  its  share 
of  the  entire  assessment,  in  proportion  to 
its  frontage,  excluding  the  right  of  way,  nor 
that  if  the  block  had  been  assessed  as  a 
whole  the  assessment  would  have  been  any 
less  than  it  was,  nor  was  it  shown  that  the 
block  was  not  used  for  business  purposes 
in  such  a  '/ay  as  to  justify  the  separate 
assessments  made  by  the  commissioners. 
Held,  without  passing  on  the  correctness  of 
the  court's  action,  that  the  company  was 
not  thereby  injured  and  had  no  just  cause 
of  complaint.  Chicago,  R.  I,  &•  P.  R.  Co.  v. 
Chicago,  139  ///.  573,  28  A^.  E.  Rep.  1108. 

(8)  Appeals. — There  is  no  provision  of  law 
authorizing  a  company  to  appeal  to  the 
circuit  court  from  an  assessment  of  taxes 
mad(  by  a  board  of  supervisors.  The  pro- 
vision of  the  Constitution  relating  to  ap- 
peals is  not  self-executed.  It  seems  that 
an  aggrieved  company  might  have  a  remedy 
by  certiorari.  Ohio  &*  M,  R.  Co,  v.  Law- 
rence County,  27  ///.  50. 

It  is  not  required  that  a  corporation 
whose  property  is  assessed  for  taxation  by 
the  state  board  shall  be  notified  of  the  as- 
sessment or  of  the  rules  adopted  whereby  to 
determine  the  value  of  the  property,  and 
no  right  of  appeal  is  given  from  the  assess- 
ment. Porter  v.  Rockford,  R.  /.  6*  St,  L, 
R.  Co.,  76  ///.  561. 

Under  the  statute,  the  valuation  for  taxa- 
tion of  main  and  side  tracks  is  committed 
to  the  state  board,  and  no  appeal  lies  from 


,  but,  in  dis- 
ital  stock  for 
counties,  the 
ered  as  parts 
cago  d*  A.  Jt. 
».  419. 

ommissioners 
isessment  as- 
ing  to  a  com- 

and  used  for 
,  one  on  each 
assessed  sep- 
earing  of  the 
ssment,  modi- 
he  aggregate 
the  whole 
ot  an  assess* 
:  of  way,  and 
stantial  cause 
of  the  court. 
Chicago,  139 

pear  that  the 
han  its  share 
proportion  to 
lit  of  way,  nor 
assessed  as  a 
lave  been  any 
lown  that  the 
iiess  purposes 
the  separate 
immissioners. 
correctness  of 
company  was 
no  just  cause 
%-P.R.Co.v. 
.  Rep.  1 108. 
ovision  of  law 
ppeal  to  the 
lent  of  taxes 
rs.  The  pro- 
slating  to  ap- 
t  seems  that 
lave  a  remedy 
'.  Co,  V.  Law- 

i  corporation 
r  taxation  by 
led  of  the  as- 
!d  whereby  to 
property,  and 
>m  the  assess- 
.  /.  6-  St.  L. 

ition  for  taxa- 
is  committed 
peal  lies  from 


TAXATION,  257. 


947 


i 


its  decision  to  the  county  court  when  act- 
ing on  application  for  judgment  for  taxes, 
or  at  any  other  time.  East  St.  Louis  Con- 
necting Jt.  Co.  V.  People  tx  rel.,  119  ///.  182, 

10  N.  E.  Rep.  397. 

The  decision  of  the  state  board  of  equal- 
ization in  fixing  the  valuation  of  railroad 
property  for  the  purpose  of  taxation  is  ju- 
dicial in  its  nature,  and  can  only  be  assailed 
for  fraud  or  want  of  jurisdiction.  East  St. 
Louis  Connecting  R.  Co,  v.  People  ex  rel,, 
119  ///.  182,  10  N.  E,  Rep.  397. 

The  board,  in  the  assessment  of  railroads, 
is  not  bound  by  the  valuation  fixed  upon  its 
road,  etc.,  by  the  company,  and  a  slight 
error  in  judgment  on  the  part  of  the  board 
in  valuation  of  such  property,  there  being 
no  fraud  or  corruption  shown,  affords  no 
ground  for  enjoining  any  part  of  the  taxes 
levied  on  such  valuation.  Illinois  &*  St.  L. 
R.  &*  C.  Co,  v.  Stookey,  31  Am,  &*  Eng,  R. 
Cas,  479,  122  ///.  358,  13  A^.  E,  Rep.  516,  11 
West,  Rep,  614. 

An  assessment  of  railroad  property  for 
taxation  by  the  state  board  is  conclusive, 
except  wliere  fraud  has  intervened.  Illinois 
&•  St,  L.  R,  &>  C,  Co.  V.  Stookey,  31  Am.  &* 
Eng.  R.  Cas,  479, 122  ///.  358,  13N.E,  Rep. 
516,  II  West,  Rep,  614. 

Or  for  want  of  jurisdiction.  St.  Louis  B.&* 
T.  R.  Co.  V.  People  ex  rel,,  39  Am.  &*  Eng. 
R,  Cas.  562,  127  ///.  627,  21  N,  E,  Rep.  348, 

The  action  of  the  assessors  of  taxes  is 
final,  unless  it  can  be  shown  that  t.he  assess- 
ment was  fraudulently  made,  or  that  the 
property  assessed  was  not  liable  to  taxa- 
tion, or  that  the  legislature  has,  in  authoriz- 
ing the  Xtz,  disregarded  or  transcended  the 
principles  of  equality,  or  unless  the  tax  has 
been  levied  when  not  authorized  by  law. 
La  Salle  &-P.H.&'  D,  R,  Co,  v.  Donoghue, 
127  ///.  27,  18  A':  £".  Rep.  827. 

(9)  Local  assessments  and  /«jr«.— Under 
111.  Rev.  St.  ch.  86,  §  8,  giving  to  county 
commissioners  "  power  to  levy  a  tax  in  their 
respective  counties,"  the  valuation  and  as- 
sessment of  a  railroad  should  not  be  the 
valuation  of  an  undivided  part,  but  of  the 
portion  confined  to  the  county,  and  the 
valuation  and  assessment  for  city  purposes 
are  governed  by  the  same  rules.  Sangamon 
&*  M.  R.  Co.  V,  Morgan  County,  14  ///.  163. 
—Quoted  in  Coe  v,  Columbus,  P.  &  I.  R. 
Co.,  10  Ohio  St.  372 ;  State  v.  Central  Pac. 
R.  Co.,  10  Nev.  47. 

The  board  of  supervisors  of  a  county  has 
the  power  under  the  statute  to  correct  the 


lists  of  real  and  personal  property  for  taxa- 
tion furnished  by  railway  companies.and  also 
to  correct  the  valuation  returned.  The  re- 
consideration of  an  order  of  the  board  of 
supervisors  increasing  the  value  of  railroad 
property,  at  a  subsequent  meeting  when  the 
result  is  not  changed,  will  not  affect  the 
former  action.  Chicago  &*  R.  I,  R,  Co,  v. 
Bureau  County  Sup'rs,  2$  III.  580. 

Where  a  lot  is  returned  by  a  company  in 
its  list  as  being  used  for  tracks,  side  tracks, 
and  buildings  in  connection  with  the  road 
and  for  railroad  purposes,  and  the  board 
of  equalization  assesses  the  same,  and  the 
taxes  upon  it  are  levied  and  paid,  an  as- 
sessment by  the  local  assessor  of  the  same 
lot  will  be  a  double  assessment,  and  the  tax 
extended  upon  the  latter  assessment  will  be 
illegal.  Chicago  &*  A,  R,  Co.  v.  People  ex 
rel,,  99  ///.  464.— Following  Chicago  4  A. 
R.  Co.  V,  People  ex  rel.,  98  111.  350.— Quoted 
IN  Chicago  &  A.  R.  Co.  v.  People  ex  rel., 
41  Am.  &  Eng.  R.  Cas.  629.  129  III.  571,  22 
N.  E.  Rep.  864,  25  N.  E.  Rep.  5. 

Where  a  company  leturns  and  files  with 
the  county  clerk  a  sworn  list  of  all  its  taxa- 
ble property  in  such  county  except  its  per- 
sonal property  in  one  town,  which  is  omitted, 
it  is  made  the  duty  of  the  town  assessor  to 
list  and  assess  such  omitted  property,  and  if 
he  lists  it  upon  his  general  assessment  roll 
instead  of  upon  the  county  clerk's  copy  of 
the  railroad  schedules  furnished  him,  it  is 
but  an  informality  not  affecting  the  sub- 
stantial justice  of  the  tax  levied  thereon, 
and  furnishes  no  ground  whereon  to  enjoin 
the  collection  of  the  taxes  extended  on  such 
assessment.  Wabash,  St,  L,  &*  P.  R.  Co. 
V.  Johnson,  17  Am,  &*  Eng,  R.  Cas.  487, 
108///.  II. 

Certain  commissioners  of  highways,  from 
1875  to  1883  inclusive,  levied  the  necessary 
road  taxes  annually  upon  all  the  taxable 
property  in  their  town  except  the  property 
of  a  company,  which  was  overlooked.  In 
1886  the  omission  was  discovered,  and  the 
commissioners  then  made  out  lists  for  the 
several  districts,  of  property  of  the  company, 
'or  each  year  from  1875  to  1883,  both  inclu- 
sive, and  ordered  that  the  road  taxes  for 
those  years  be  levied  against  the  property 
of  the  company,  the  taxes  being  extended 
accordingly.  Held,  that  the  taxes  for 
such  years  were  illegally  levied  and  could 
not  be  collected  by  law.  Ohio  &*  M.  R. 
Co,  v.  People  ex  rel.,  li^  HI-  M.  i^N.E 
Rep.  277. 


:r|ii 


948 


TAXATION,  258. 


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The  commissioners  of  highways,  in  levy- 
ing a  road  tax  on  railroad  property,  must 
take  the  value  of  property  in  their  particu- 
lar districts  as  fixed  by  the  state  board  and 
certified  by  the  county  clerk.  The  com- 
missioners ^re  required  annually  to  make 
lists  describing  each  tract  of  land  in  the  dis« 
trict,  with  the  names  of  the  ownirs,  includ- 
ing railroad  property  returned  to  them,  and 
to  extend  the  road  tax  thereon  in  a  separate 
column.  Wabash.  St.  L.  6-  P.  R.  Co.  v. 
Peopit  ex  ret.,  137  ///.  iZi,  vj  N.E.  Rep.  456. 

A  description  of  railroad  property,  in  the 
lists  made  by  the  commissioners  of  high- 
ways, as  "  railroad  track,"  and  as  "  propor- 
tion of  rolling  stock,"  or  as  "  rolling  stock, 
main  line,"  and  as  "  main  track,"  is  not  void 
for  uncertainty.  The  property  thus  de- 
scribed will  embrace  all  the  main  track, 
right  of  way,  and  improvements  assessable 
by  the  state  board,  lying  within  the  road 
district,  and  its  proportionate  share  of  the 
rolling  stock  assessed.  Wabash,  St.  L,  &• 
P.  R.  Co.  v.  People  ex  rel.,  137  ///.  181,  27 
A':  E.  Rep.  456. 

A  board  of  town  auditors  made  out  and 
signed  a  statement  that  at  a  meeting  held 
by  them,  they  did  "  determine  that  twenty- 
five  per  cent,  of  tax  shall  be  levied  on  the 
real  estate  and  personal  property  of  said 
town,  including  railroad  track  and  rolling 
stock,  for  town  purposes,  and  for  the  pay- 
ment of  outstanding  orders  drawn  by  them 
on  their  treasurer."  The  town  clerk  certi- 
fied that  the  same  was  a  true  and  correct 
copy  of  transcript  from  the  original  book  of 
the  records  of  the  town.  This  transcript 
and  certificate  were  filed  witii  the  county 
clerk,  who  extended  the  town  tax  on  it, 
without  any  certificate  by  the  town  clerk  of 
the  amount  to  be  raised  by  taxation.  Held, 
that  the  tax  was  extended  without  authority 
of  law  and  was  therefore  unjust  and  void. 
Peoria,  D.  &*  E.  R.  Co.  v.  People  ex  rel., 
141  ///.  483.  i\  N.  E.  Rep.  113. 

258.  ludiaua.  —  (I)  Statute  of  1852.— 
The  list  of  "  stock  "  for  taxation  required  by 
Ind.  Rev.  St.  1852  (1  Rev.  St.  1S52,  pp.  113, 
114,  115)  to  be  furnished  by  the  president, 
secretary,  agent,  or  other  accounting  officer 
of  every  railroad,  plank  road,  turnpike  road, 
ilack-water  navigation,telegraph,  and  bridge 
company  in  this  state,  to  the  auditor  of  the 
county  where  the  principal  office  is  situated 
is  not  a  list  of  the  subscriptions  of  stock, 
but  of  the  actual,  tangible  property  of  such 
company.    State  v.  Hamilttn,  5  Ind,  310. 


If  the  company  docs  not  furnish  such  list 
by  the  first  of  ]une  in  any  year  its  right  to 
furnish  the  list  ceases,  and  it  is  incumbent 
upon  such  auditor  to  make  it.  State  v. 
Hamilton,  5  Ind.  310. 

For  the  purpose  of  compelling  the  audi- 
tor, by  writ  of  mandamus,  to  make  out  such 
list,  upon  the  failure  of  any  such  company 
to  furnish  the  same  within  the  period  pre- 
scribed by  the  statute,  any  citizen  may  be 
a  relator.  The  auditor  of  state,  however, 
being  more  specially  charged  with  the  man- 
agement of  the  finances  of  the  state,  is  a 
peculiarly  appropriate  relator.  State  v. 
Hamilton,  5  Ind.  310. 

The  act  of  1852  remains  in  force  as  to  the 
assessment  of  personal  property,  and  under 
its  provisions  a  list  of  all  the  stock  of  a 
railroad  company,  which  includes  all  per- 
sonal property,  should  be  furnished  to  the 
auditor  of  the  proper  county  between  Jan- 
uary I  and  June  I.  Louisville  &*  N,  A.  R. 
Co.  v.  State,  2$  Ind.  177. 

If  the  proper  officer  of  the  company  fails 
to  make  such  return  before  the  ist  of  July, 
it  becomes  the  duty  of  the  auditor  to  make 
it,  under  section  37  of  the  act  of  1852.  The 
company  has  no  longer  a  right,  and  cannot 
be  required,  to  make  such  statement.  Louis- 
ville &*  N.  A.  R.  Co.  V.  State,  25  Ind.  177. 

The  Constitution  does  not  require  a  uni- 
form method  of  valuation  of  property  for 
taxation,  but  only  such  regulations  as  shall 
secure  a  just  valuation.  In  determining 
how  this  end  shall  be  secured  the  legisla- 
ture must  exercise  a  discretion,  and  unless 
the  method  adopted  is  clearly  inadequate 
to  secure  the  result,  the  courts  cannot  inter- 
fere. Louisville  &*  N.  A.  R.  Co.  v.  State, 
25  Ind.  177.  —  Distinguished  in  Indian- 
apolis &  C.  R.  Co.  V.  State  ex  rel.,  37  Ind. 
489 ;  State  ex  rel.  v.  New  Orleans  &  C.  R. 
Co.,  37  La.  Ann.  589.  Quoted  in  Wiscon- 
sin C.  R.  Co.  V.  Taylor  County,  1  Am.  & 
Eng.  R.  Cas.  $32,  52  Wis.  37. 

(2)  Statutes  <y  1858  and  1859.— The  acts 
of  1858  and  1859  relate  only  to  the  assess* 
ment  of  real  property.  Louisville  &*  N.  A. 
R.  Co.  V.  State,  25  Ind.  177. 

The  Act  of  March  4,  1859,  §  6  (Acts  of 
iB59>  P-  $)•  which  provides  that  the  ap- 
praisers,  in  estimating  the  value  of  the  road, 
shall  take  into  consideration  the  location  of 
the  road  for  business,  the  competition  of 
other  roads,  its  earnings,  etc.,  is  constitu- 
tional. Louisville  &*  H.  A.  R.  Co.  v.  State, 
35  Ind.  177. 


TAXATION,  258. 


949 


h  such  list 
ts  right  to 
incumbent 
State  V. 

the  audi- 
e  out  such 
I  company 
)eriod  pre- 
n  may  be 

however, 
1  the  man- 
state,  is  a 

State   V. 

e  as  to  the 
and  under 
stock  of  a 
es  all  per- 
led  to  the 
ween  Jan- 
'  N.  A.  Ji. 

iipany  fails 
St  of  July, 
or  to  make 
1852.  The 
^nd  cannot 
:nt,  Louis- 
Ind,  177. 
[uire  a  uni* 
roperty  for 
>ns  as  shall 
etermining 
he  legisla- 
and  unless 
inadequate 
nnot  inter- 
'0.  V.  State, 
IN  Indian- 
1..  37  Ind. 
IS  &  C.  R. 
N  Wiscon- 
I  Am.  & 

—The  acts 
the  assess* 
U  &»  N.  A. 

6  (Acts  of 
It  the  ap- 
>t  the  road, 
location  of 
petition  of 
I  constitu- 
'a.  V.  State, 


The  Ind.  Act  of  Dec.  3i,  1858  (i  G.  &.  H. 
85),  as  it  stood  at  the  time  for  the  assess- 
ment of  taxes  for  the  year  1868,  contem- 
plated taxing  each  railroad,  including  all 
property  used  in  running  and  operating  the 
same,  as  an  entirety  or  unit,  the  road  to  be 
appraised  by  the  appraisers  of  all  the  coun- 
ties through  which  it  might  run, at  a  meeting 
to  be  held  for  that  purpose  on  the  line  of  the 
road,  the  appraisers  to  appraise  the  value  of 
the  road  per  mile  through  their  respective 
counties,  taking  into  consideration  the  loca- 
tion of  such  road  for  business,  the  competi- 
tion of  other  roads,  its  earnings  above  cur- 
rent expenses  and  repairs,  and  its  condition 
for  present  and  future  business,  so  as  to 
enable  them  to  arrive  at  the  actual  present 
value  of  such  road,  independently  of  what  it 
cost  or  the  amount  of  its  indebtedness. 
Indianapolis,  C.  &»  L.  R.  Co.  v.  Kilner,  i 
Am.  &*  Eng.  R.  Cas.  413,  69  Ind,  71. 

There  was  no  provision  in  this  statute 
which  authorized  a  county  auditor  to  enter 
the  part  of  the  road  running  through  his 
county  upon  the  duplicate  for  taxation  as 
omitted  property.  Indianapolis,  C.  &*  L. 
R,  Co.  V.  Kilner,  i  Am.  &»  Eng.  R.  Cas,  413, 
6g  Ind.  71 

(3)  Statute o/iS6$.— The  act  of  1865  (3  Ind. 
St.  418)  in  reference  to  the  valuation  and 
taxation  of  railroad  property  does  not  pro- 
vide for  any  action  by  the  district  board  of 
equalization  upon  the  assessment  made  by 
the  appraisers,  and  the  only  appeal  author- 
ized is  an  appeal  from  the  action  of  the  ap- 
praisers to  the  state  board  of  equalization. 
JefftrsonvilU,  M.  &*  I.  R.  Co.  v.  McQueen, 
49  Ind.  64. — Followed  in  Montgomery  v. 
Jeffersonville,  M.  &  I.  R.  Co.,  49  Ind.  204. 

Such  appeal  does  not  vacate  the  valua- 
tion and  assessment  made  by  the  county 
assessors,  or  suspend  proceedings  thereon. 
Jeffersonville,  M.  &*  I.  R,  Co.  v.  McQueen, 
49  Ind.  64. 

(4)  Statute  of  1891.  —Section  129  of  Ind. 
Act  of  1 891,  relating  to  taxation,  conferring 
upon  the  state  board  of  tax  commissioners 
the  same  powers  possessed  by  the  county 
boards  of  review,  gives  to  railway  companies 
the  right  to  be  heard  by  the  state  board  in 
regard  to  the  assessment  and  valuation  of 
their  "railroad  track"  and  "rolling  stock," 
made  by  said  board,  and  gives  to  the  state 
board  the  right  to  correct  any  valuation 
and  assessment  made  in  relation  to  such 
property.  Cleveland,  C,  C.  &*  '^f.  L.  R.  Co. 
V.  Backus.  133  Ind.  513.  33  A'^  E.  Rep.  421. 


Pittsburgh,  C,  C.  &*  St.  L.  R.  Co.  v.  Backus, 
54  Am.  (S»  Eng.  R.  Cas.  327,  133  Ind.  625, 
33  A^.  E.  Rep.  432. 

The  act  of  1891  provides  a  general  system 
for  the  assessment  and  valuation  of  prop* 
erty ;  the  method  of  ascertaining  the  valua- 
tion and  assessing  each  class  ap  1  kind  of 
property  applies  alike  to  all  persons  holding 
and  owning  the  same  class  of  property ;  it 
applies  alike  to  all  persons  under  like  cir- 
cumstances and  conditions;  it  does  not 
deny  to  railway  companies  the  equal  pro- 
tection of  the  law,  and  is  not  in  conflict 
with  the  Constitution  of  the  United  States. 
Cleveland,  C.  C.  &*  St.  L.  R.  Co.  v.  Backus, 
133  Ind.  513.  33  N.  E.  Rep.  421. 

The  statute  does  not  authorize  the  im> 
portation  of  values  from  other  states,  nor 
does  the  method  of  assessment  of  rolling 
stock,  valued  in  accordance  with  the  rule  of 
rating  the  road  as  a  unit,  and  taking  such 
a  portion  of  its  value  as  the  length  of  the 
road  lying  within  the  state  bears  to  the 
whole  road,  operate  to  import  values  upon 
which  assessments  for  taxation  are  made; 
nor  does  such  method  of  assessment  tax 
inteistate  commerce.  Cleveland,  C,  C.  &• 
St.  L.  R.  Co.  V.  Backus,  133  Ind.  513,  33  N. 
E.  Rep.  421.  Indianapolis  6-  V.  R.  Co.  v. 
Backus,  133  Ind.  609,  33  N.  E.  Rep.  443. 
Pittsburgh,  C,  C.  &*  St.  L.  R.  Co.  v.  Backus, 
54  Am.  &•  Eng.  R.  Cas.  227,  133  Ind.  625,  33 
A':  E.  Rep.  432. 

The  state  board  of  tax  commissioners,  in 
fixing  a  valuation  on  "  railroad  track "  and 
"rolling  stock,"  is  not  confined  to  the 
schedules  and  rates  made  by  the  railway 
companies,  but  such  commissioners  have 
the  right  to  seek  oth.r  information  to  en- 
able them  to  arrive  at  a  just  valuation. 
Cleveland,  C,  C.  4*  St.  L.  R.  Co.  v.  Backus, 
133  Ind.  $13,  33  M.  E.  Rep.  421.  Pittsburgh, 
C.,C.&*  St.  L,  R.  Co.  V.  Backus,  54  Am.  &* 
Eng.  R.  Cas.  227,  133  Ind.  623,  33  A':  E. 
Rep.  432. 

The  law  having  required  the  owners  of 
"  railroad  track"  and  "  rolling  stock  "  to  file 
with  the  auditor  of  state  a  schedule  of 
the  same,  and  the  value  thereof,  and  having 
made  it  the  duty  of  the  auditor  of  state 
to  present  such  schedule  to  the  state  board 
of  tax  commissioners,  and  having  fixed  a 
time  for  the  meeting  of  such  board,  the 
owners  of  such  railway  property  are  bound 
to  take  notice  of  the  time  of  the  meeting  of 
such  board,  and  are  entitled  to  no  other 
notice;  and  the  owners  of  such  property, 


950 


TAXATION,  959. 


IJ'  i 


m* 


111  I ''Ml 


.vf;;; 
:»•»■«  ;5!':' 


J-- 


through  their  written  schedules  and  state- 
ments of  values,  are  heard  by  such  board,  and 
to  be  further  heard  they  must  take  notice 
of  and  be  present  at  the  sitting  of  such 
board,  Cleveland.  C,  C.  &•  St.  L.  R.  Co.  v. 
Backus,  133  Ind.  513,  33  N.  E.  Rep.  421. 
Pittsburgh,  C.,C.6'  St.  L.  R.  Co.  v.  Backus, 
54  Am.  &*  Eng.  R.  Cas.  227,  133  Ind.  625,  33 
N.  E.  Rep.  432.--REVIEWING  Hannibal  & 
St.  J.  R.  Co.  V.  State  Board  of  Equaliza- 
tion, 64  Mo.  294. 

The  statute  is  a  valid  enactment,  and  does 
not  deny  to  property  owners  "  due  process 
of  law"  or  "the  equal  protection  of  the 
law"  in  the  assessment  of  their  property. 
Cleveland,  C,  C.  &*  St.  L.  R,  Co.  v.  Backus, 
133  Ind.  513,  33  N.  E.  Rep.  421.— Quoting 
Porter  v.  Rockford,  R.  I.  &  St.  L.  R.  Co., 
76  III.  s6i. 

The  provision  of  the  state  Constitution 
providing  "for  a  uniform  and  equal  rate  of 
assessment  and  taxation  "  is  complied  with 
when  the  same  basis  of  assessment  is  fixed 
for  all  property,  and  the  same  rate  of  taxa- 
tion  is  fixed  within  the  district  subject  to 
taxation:  and  the  provision  of  the  state 
Constitution  requiring  that  the  legislature 
"shall  prescribe  such  regulations  as  shall 
secure  a  just  valuation  for  taxation  of  all 
property,  both  real  and  personal,"  is  com- 
plied with  when  the  legislature  provides 
that  "railroad  track"  and  "rolling  stock" 
of  railway  companies  shall  be  assessed  by 
the  state  board  of  tax  commissioners,  while 
all  other  property  shall  be  assessed  by  local 
boards  and  officers.  Cleveland,  C,  C.  &*  St. 
L.  R.  Co.  v.  Backus,  133  Ind.  513,  33  N.  E. 
Rep.  421.  Pittsburgh,  C,  C.  &•  St.  L.  R.  Co. 
V.  Backus,  54  Am.  &»  Eng.  R.  Cas.  227,  133 
Ind.  6is.  33  ^.  E  Rep.  432. 

Under  the  statute,  the  only  real  difference 
in  the  assessment  of  "  railroad  track  "  and 
"  rolling  stock  "  and  other  property  is  that 
other  property  is  valued  and  assessed  by  as- 
sessors and  county  boards  of  review,  with 
a  right  of  hearing  on  the  part  of  the  owners 
of  such  property,  before  the  county  board 
of  review,  which  is  vested  with  power  to 
correct  errors,  and  a  right  of  appeal  is  given 
from  such  board  to  the  state  board  ;  while 
property  denominated  "railroad  track" 
and  "  rolling  stock  "  is  valued  and  assessed 
in  the  first  instance  by  the  state  board,  with 
a  right  of  hearing  before  such  board,  to  the 
owners  of  such  property,  with  power  vested 
in  such  board  to  correct  errors.  The  differ- 
ence in  the  mode  of  assessment  is  not  such 


as  denies  to  owners  of  toch  railroad  pro|>* 
erty  the  "  equal  protection  of  the  law,"  nor 
does  it  deny  them  "due  process  of  law." 
Indianapolis  6>«  V,  R.  Co,  v.  Backus.  133 
Ind.  609,  33  N.  E.  Rep.  443. 

259.  Iowa.  — Under  Code  of  1851,  § 
462,  and  Laws  of  1853,  ch.  152,  §  7,  the 
property  of  railroad  companies  was  only 
taxable  for  state  and  county  purposes 
through  the  shares  of  tiie  stockholders. 
Iowa  Homestead  Co.  v.  Webster  County,  21 
Iowa  221.— Reviewing  Tallman  v.  Butler 
County  Treasurer,  12  Iowa  531;  Fazton 
V.  McCosh,  12  Iowa  527;  Davenport  v. 
Mississippi  &  M.  R.  Co.,  12  Iowa  539; 
Davenport  v.  Mississippi  &  M.  R.  Co.,  16 
Iowa  348.— Distinguished  in  Cedar  Rap- 
ids &  M.  R.  R.  Co.  V.  Woodbury  County, 
29  Iowa  247 ;  Dickerson  v.  Yetzer,  53  Iowa 
681.  Followed  in  Iowa  R.  Land  Co.  v. 
Fitchpatrick,  52  Iowa  244. 

Revision  of  i860,  ch.  45,  was  general, 
treating  all  property  of  all  persons  alike, 
whether  belonging  to  railway  companies  or 
private  persons,  and  whether  lands,  money, 
or  goods ;  and  this  act  governed  the  levy  of 
taxes  for  the  year  1861.  Iowa  Homestead 
Co.  V.  Webster  County,  21  Iowa  221. 

Revision  of  i860,  ch.  45,  changed  and 
repealed  Laws  of  1858,  ch.  152,  and  under 
said  chapter  45  the  property  of  railroad 
companies  was  taxable  in  the  same  manner 
as  that  of  any  other  company  or  individual. 
Dubuque  &*  P.  R.  Co.  v.  Webster  County,  21 
Iffwa  235. 

Iowa  Laws  1872,  ch.  26,  providing  for  the 
taxation  of  railway  property,  directed  that 
the  assessment  for  1872  should  be  made  in 
July.  Held,  that  the  road  tax  upon  such 
property  for  that  year  was  collectible,  not- 
withstanding the  date  of  the  assessment 
rendered  impossible  a  compliance  with  the 
formal  requirements  of  the  statute,  respect- 
ing the  manner  in  which  the  tax  should  be 
extended  upon  the  tax  list.  Milwaukee  &» 
St.  P.  R.  Co.  V.  Kossuth  County,  41  Iowa  57. 

Where  the  assessor  or  other  proper 
officer  fails  to  assess  certain  lands,  and  the 
county  treasurer,  under  the  provisions  of 
the  statute,  discharges  the  duty  within  two 
years,  but  fails  to  note  the  fact  that  the 
assessment  was  made  by  himself,  the  omis- 
sion does  not  affect  the  legality  of  the 
assessment,  and  the  fact  that  and  time  at 
which  it  was  made  may  be  shown  by  parol. 
Cedar  Rapids  &*  M.  R.  R.  Co.  v.  Carroll 
County.  41  Iowa  153. 


TAXATION,  260. 


961 


|i 


Iroad  prop' 
e  law,"  nor 
!ss  of  law." 
Backus,  133 

of   1851,  § 

2.  §  7.  the 
s  was  only 
purposes 
ockholders. 

County,  21 
n  V.  Butler 
Fazton 
veil  port  V. 

Iowa  539; 

R.  Co.,  16 
Cedar  Rap- 
iry  County, 
er.  53  Iowa 
Kind  Co.  V. 

as  general, 
rsons  alike, 
mpanies  or 
ids,  money, 
the  levy  of 
Homestead 

21. 

Unged  and 
and  under 

of  railroad 

me  manner 
individual. 

"  County,  21 

ing  for  the 
rected  that 
be  made  in 
upon  such 
ctible,  not- 
assessment 
:e  with  the 
te,  respect- 
should  be 
fivauiee  &» 
H  Iowa  57. 
er  proper 
s,  and  the 
•visions  of 
vithin  two 
t  that  the 
the  omis- 
ity  of  the 
id  time  at 
ti  by  parol. 
V.  Carroll 


A  road  tax  against  a  company  is  not 
defeated  by  the  fact  that  the  assessment  of 
the  property  is  not  placed  upon  the  assess- 
ment book  of  the  township.  The  order  of 
the  board  of  supervisors,  declaring  the 
length  of  the  main  track  and  assessed  value 
of  the  road  lying  within  the  township, 
transmitted  to  the  trustees,  forms  the  basis 
for  the  levy  of  taxes  upon  railroad  property. 
Stoux  City  &*  St.  P.  iff.  Co.  v.  Osceola  County. 
45  Iowa  168. 

A  railroad,  with  its  right  of  way,  rails, 
switches,  depots,  engine  houses.and  machine 
shops,  is  an  entirety ;  and  a  system  of  tax- 
ation, therefore,  leaving  the  assessment  to 
the  officers  of  each  taxing  district,  would 
result  in  a  great  inequality  of  burden. 
Dubuque  v.  Chicago,  D.  &•  M.  li.  Co.,  47 
Iowa  196. 

The  levy  of  local  municipal  taxes  upon  a 
company  is  a  dsnial  of  the  right  of  the  legis- 
lature to  provide  the  measure  of  valuation 
of  property,  and  the  right  to  locate  it  for 
the  purpose  of  taxation.  (Beck  and  Adams, 
JJ.,  dissenting.)  Dubuque  v.  Chicago,  D.  &* 
M.  R.  Co.,  47  Iowa  196. 

The  statute  providing  for  the  assessment 
of  railroad  property  in  March  of  each  year 
(Code,  §  1317)  is  not  in  conflict  with  the 
statute  (Code,  §  812)  providing  for  assess- 
ment of  real  estate  in  January  of  each  alter- 
nate year.  Central  Iowa  R.  Co.  v.  Wright 
County  Sup'rs,  22  Am.  &*  Eng.  R.  Cas.  223, 
67  Iowa  199,  25  A'.  W.  Rep.  128. 

The  order  of  the  board  of  supervisors 
determining  the  number  of  miles  of  track 
within  cities,  incorporated  towns,  and  tax- 
ing districts  is  not  in  any  sense  an  assess- 
ment or  valuation  of  those  portions  of  the 
property ;  and  the  provisions  of  the  statute 
exempting  agricultural  and  horticultural 
lands  from  taxation  for  city  purposes  has 
no  application  to  property  of  this  character. 
Illinois  C.  R.  Co.  v.  Hamilton  County,  73 
Iowa  313,  35  N.  W.  Rep.  238. 

A  city  has  no  power  to  levy  a  special  road 
tax  on  railroad  property  within  its  limits, 
such  property  being  taxable  for  general  city 
purposes.  Illinois  C.  R.  Co.  v.  Hamilton 
County,  73  low.".  313, 35  N,  W.  Rep.  238. 

Under  the  Code,  §§  808,  1319,  all  railroad 
bridges  are  to  be  assessed  for  taxation  by 
the  executive  council,  except  those  over  the 
Mississippi  and  Missouri  rivers,  and  they 
are  to  be  assessed  by  the  assessors  of  the 
local  districts  in  which  they  are  situated ; 
and  such  construction  does  not  render  sec- 


tion 808  unconstitutional.  Missouri  Vallep 
&*  B.  R.  &»  B.  Co.  V.  Harrison  County,  74 
Iowa  283.  37  N.  W.  Rep.  372. 

260.  Kansas.— Laws  of  1869,  ch.  124, 
§  II,  giving  to  the  supreme  court  jurisdiction 
to  hear  appeals  from  the  board  of  county 
clerks,  in  the  appraisal  of  the  property  of 
railroads  for  taxation,  is  giving  to  the  court 
power  not  judicial  in  its  character,  and  is 
therefore  not  authorized  by  the  Constitu- 
tion. Auditor  v.  Atchison,  T.  5-  5.  F.  R. 
Co.,  6  Kan.  500. 

Under  Gen.  St.  1868,  ch.  25,  §  41.  which 
provides  that  a  deputy  county  clerk  may,  in 
the  absence  of  the  county  clerk,  perform  all 
the  duties  of  such  county  clerk,  a  deputy 
county  clerk  may,  in  such  absence,  act  as 
one  of  the  "  board  of  appraisers  and  assess- 
ors "  to  assess  railroad  property,  as  provided 
by  Laws  of  1869,  ch.  124.  Amrinev.  Kansas 
Pac.  R.  Co.,  7  Kan,  178.  — Followed  ik 
Missouri  River,  Ft.  S.  &  G.  R.  Co.  v.  Mor« 
ris,  7  Kan.  210. — Missouri  River,  Ft.  S.  &*  G. 
R.  Co.  V.  Morris,  7  Kan.  210,  i  Am.  Ry. 
Kep.  353.— Following  Amrine  v.  Kansas 
Pac.  R.  Co.,  7  Kan.  178. 

Where  the  county  clerk  mingles  real  es- 
tate and  personalty  in  his  assessment  of 
railroad  property,  before  the  county  com- 
missioners can  raise  such  valuation  they 
must  take  all  the  steos  necessary  to  give 
them  jurisdiction  in  regard  to  both  real  and 
personal  estate.  Kansas  Pac.  R.  Co.  v.  RuS' 
sell,  8  Kan.  558,  5  Am.  Ry.  Rep.  232. 

Irregularities  in  the  assessment  made  by 
the  county  clerk  acting  as  a  board  for  as- 
sessing railroad  property,  or  acting  sepa- 
rately under  other  statutes,  will  not  render 
void  the  taxes  founded  upon  such  assess- 
ment. Missouri  River,  Ft.  S.  &*  G.  R.  Co. 
v.  Blake,  9  Kan,  489.— Following  Mis- 
souri River,  Ft.  S.  &  G.  R.  Co.  v.  Morris, 
7  Kan.  210. 

Under  the  General  Tax  Law  of  1868,  the 
value  to  be  placed  upon  personal  property 
for  taxation  was  in  the  first  instance  fixed 
by  the  party  returning  and  listing  the  same, 
while  the  state  had  the  right  under  section 
65  of  that  law,  after  notice  to  the  party  and 
inquiry  before  the  county  clerk  or  the  com- 
missioners, to  have  any  errors  in  such  valua- 
tion corrected.  The  Railroad  Tax  Law  of 
1874  established  the  same  rule  in  respect  to 
the  valuation  of  railroad  property;  and  the 
value  placed  on  its  personal  property  by  the 
owner  was  to  be  accepted,  unless  corrected 
bv  Droccedings  under  section  6j.    Kansas 


i\n 


■'I 


952 


TAXATION,  261. 


i!'  1 


6    ! 


;  "IB  :''g: 

i   'Sfc. ."••"'"■• 
i«tti     -'Hi 


/»«r.  X.  Co.  V.   Wyandottt  County  Com'rs, 
i6  A'aff.  587. 

Under  the  General  Tax  Law,  the  valua- 
tion of  real  estate  is  fixed  in  the  first  place 
by  the  assessor,  and  not  by  the  owner,  and 
may  thereafter  be  changed  by  the  board  of 
equalization  at  a  regular  meeting  of  which 
legal  and  public  notice  is  given  ;  and  by  the 
law  of  1874  the  assessment  and  valuation  of 
railroad  property  was  to  be  the  same  as  that 
of  other  property.  St,  Joseph  &*  D.  C.  R. 
Co.  v.  Smith,  19  Kan.  225. 

Proceedings  of  a  board  of  equalization  of 
taxes,  to  revise,  and  if  necessary  to  increase, 
a  valuation  and  assessment  of  property  for 
taxes,  are  not  of  a  judicial  nature,  even 
though  evidence  is  received,  but  are  an  ex- 
ercise of  the  legislative  power.  Kansas  Pac. 
R.  Co.  v.  Ellis  County  Com'rs,  19  Kan.  584. 

Under  the  Railroad  Tax  Law  of  1874,  as 
amended  in  1875,  the  action  of  the  state 
board  of  equalization  in  raising  the  assess- 
ment of  railroad  property  prescribed  in  the 
statute  as  "  railroad  track  "  is  not  impeached 
by  proof  that  the  board  acted  only  on  the 
information  furnished  by  the  schedules  and 
statements  returned  by  the  various  com- 
panies to  tht  state  auditor,  and  from  per- 
sonal knowledge  of  the  value  and  business 
of  the  several  roads,  if  in  doing  so  it  has 
only  equalized  values,  and  has  not  increased 
the  aggregate  assessment ;  and  such  action 
is  conclusive  as  to  the  proper  valuation  of 
the  property,  notwithstanding  errors  in  prior 
proceedings  of  assessors  and  commissioners. 
Kansas  Pac.  R.  Co.  v.  Riley  County  Com'rs, 
20  Kan.  141. 

The  omission  of  the  official  title  of  the 
assessor  after  his  signature  to  the  oath  to 
his  official  return  of  the  valuation  of  real 
estate,  and  the  absence  of  the  official  seal 
of  the  county  clerk  on  the  jurats  to  the 
oath  of  the  assessor  attached  to  such  re- 
turn, and  upon  the  affidavits  of  the  publica- 
tion of  the  tax  levy  and  tax  sale,  are  mere 
irregularities,  and  will  not  invalidate  the  tax 
proceedings  based  thereon.  Shoufi  v.  Cen- 
tral Branch  U.  P.  R.  Co.,  5  Am.  6-  Eng.  R. 
Cas.  125  zxKan.  547. 

After  the  list  of  the  rolling  stock  is  re- 
turned to  the  auditor  of  state,  the  board  of 
railroad  assessors  are  the  officials  to  assess 
such  property,  and  the  property  is  to  pay 
taxes  to  the  various  counties  through  which 
the  railroad  is  located  and  operated.  Shaw- 
nil  County  Com'rsv.  Tofieka  Equipment  Co., 
26  Kan.  363. 


It  is  the  duty  of  the  board  of  railroad 
assessors,  not  of  the  local  assessors,  to  assess 
rolling  stock  of  a  company  operating  its 
road  within  the  state ;  and  there  is  nothing 
in  the  statutes  directing  otherwise.  ShaW' 
nee  County  Com'rs  v.  Topeka  Equipment  Co., 
26  Kan.  363. 

The  county  board  of  equalization  is  au- 
thorized at  its  meetings  held  in  the  month 
of  June  of  the  odd  years,  when  proper  notice 
has  been  given,  to  correct  and  equalize  the 
assessment  made  in  those  years,  under  the 
Tax  Law,  §  69,  of  real  property  that  has  be- 
come taxable  since  the  regular  assessment 
of  such  property  in  tlie  even  years,  and 
therefore  at  such  time  the  owners  of  such 
property  have  an  opportunity  for  a  hearing 
at  which  to  contest  the  legality  and  justice 
of  the  assessment.  Atchison,  T.  &»  S.  F. 
R.  Co.  V.  Wilson,  24  Am.  &*  Eng.  R.  Cas. 
623,  35  Kan.  175.  10  Pac.  Rep.  459. 

201.  Kentucky.— Appellant  company 
was  subject  to  assessment  and  taxation, 
according  to  the  value  of  its  corporate 
estate,  ever  since  it  owned  such  estate,  until 
the  specific  tax  at  the  rate  of  $20,000  per 
mile  of  road  was  substituted  by  the  Act  of 
February  20,  1864.  Louisville  &-  N.  R.  Co. 
V.  Com.,  I  Bush  (Ky.)  250.— Distinguished 
IN  Louisville  &  E.  Mail  Co.  v.  Barbour,  88 
Ky.  73- 

The  railroads  of  the  state  are  not  listed 
with  the  assessor  of  any  county,  nor  do 
they  enter  into  the  assessed  property  of  any 
county,  even  for  revenue  purposes.  Louis- 
ville &>  N.  R.  Co.  V.  Warren  County  Court, 
5  Bush  {Ky.)  243. 

The  mode  of  assessing  and  collecting 
taxes  is  not  in  the  nature  of  a  judicial  pro- 
ceeding. Revisory  boards  may  be  estab- 
lished and  appeals  allowed,  but  they  are 
matters  of  expediency,  and  cannot  be  de- 
manded as  a  matter  of  constitutional  right. 
Cincinnati,  N.  O.  &»  T.  P.  R.  Co.  v.  Com., 
13  Am.  &*  Eng.  R.  Cas.  270,  81  Ky.  492. — 
Quoting  Kelly  v.  Pittsburgh,  104  U.  S.  78. 

A  system  of  assessing  railroad  property 
by  a  state  board  of  equalization  at  the  same 
rate  as  real  estate  generally,  which  assesses  it 
as  a  unit,  and  is  designed  to  do  away  with 
fragmentary  assessments  in  counties,  and 
which  provides  for  a  hearing,  is  constitu- 
tional. Cincinnati,  N.  O.  6*  T.  P.  R.  Co. 
V.  Com.,  13  Am.  &*  Eng.  R.  Cas.  270,  81  Ky. 
492. —  Quoting  Preston  v.  Roberts,  la 
Bush  (Ky.)  570;  St.  Louis  v.  Wiggins  Ferry 
Co.,  II  Wall.  (U.S.)  423. 


TAXATION,  261. 


963 


of  railroad 
>rs,  to  assess 
perating  its 
e  is  nothing 
ise.  Shaw- 
ut'Pment  Co., 

ation  is  au- 

the  month 

roper  notice 

!qualize  the 

),  under  the 

that  has  be- 

assessment 

years,  and 

ers  of  such 

>r  a  hearing 

and  justice 

T.  <S-  S.  F. 

Zng.  Ji.  Cas. 

59. 

It  company 
d  taxation. 
5  corporate 
estate,  until 
$2o,ooo  per 
r  the  Act  of 
-  N.  JR.  Co. 
riNGUISHED 

Barbour,  88 

e  not  listed 
Uy,  nor  do 
jerty  of  any 
3es.  Louis- 
mntjf  Court, 

I  collecting 
udicial  pro- 
r  be  estab- 
it  they  are 
not  be  de- 
ional  right. 
Co.  V.  Com., 
\  Ky.  492. — 
H  U.  S.  78. 
id  property 
at  the  same 
li  assesses  it 
>  away  with 
unties,  and 
is  constitu- 
•  *  •  R,  Co, 
270,  81  Xy. 
toberts.  13 
Sfgins  Ferrjr 


Where  there  has  been  a  failure  to  list 
property  for  taxation  because  of  the  de- 
cision of  the  court  of  last  resort  in  the  state 
that  such  property  was  not  subject  to  taxa- 
tion, the  fact  that  the  court  subsequently 
decides  that  the  law  was  misinterpreted  will 
not  authorize  the  collection  of  taxes  on  the 
property  for  the  period  during  which  the 
law  as  announced  and  understood  did  not 
require  such  property  to  be  listed.  Franklin 
County  Court  v.  Louisville  6-  A'.  R.  Co.,  2$ 
Am.  Sf  Eng.  R.  Cas.  535.  84  Ky.  59. 

The  provisions  of  Ky.  Gen.  St.  art.  5,  ch. 
93,  as  to  proceedings  against  taxpayers  who 
have  failed  to  list  their  property  with  the 
assessor,  are  applicable  to  railroads.  Lou- 
isville 6*  N.  R.  Co.  V.  Com.,  85  Ky.  198,  3 
S.  W.  Rep.  139. 

While  the  Act  of  April  3,  1878,  prescrib- 
ing the  mode  of  taxing  the  property  of 
railroad  companies,  expressly  repealed  all 
existing  laws  as  to  the  assessment  and  taxa- 
tion of  such  property,  it  did  not  take  away 
the  existing  mode  of  procedure  as  to  unas- 
sessed  taxes  of  a  prior  date,  but  to  that 
extent  left  the  existing  statute  in  force. 
Louisville  &>  N.  R.  Co.  v.  Com.,  85  Ky.  198, 
3  S.  W.  Rep.  139. 

A  summons  based  upon  Ky.  Gen.  St.  ch. 
92,  art.  5,  §  25.  need  not  charge  anything 
more  than  a  mere  failure  to  list,  for  which 
it  prescribes  a  penalty.  Louisville  S»  N.  R, 
Co.  V.  Com.,  8s  Ky.  198,  3  S.  W.  Rep.  139. 

If  the  default  to  render  a  list  of  taxable 
property  is  not  wilful,  or  if  for  any  reason 
the  penalty  cannot  be  imposed,  although  the 
default  be  wilful,  or  if  barred  by  limitation, 
the  court  should  direct  the  clerk  to  take  the 
list.  Louisville  &*  N.  R.  Co.  v.  Com.;  8$  Ky. 
198,  3  S.  W.  Rep.  139. 

County  taxes  on  a  railroad  are  sufficiently 
levied  where  the  valuation  upon  the  prop- 
erty is  fixed  by  the  board  of  equalization, 
and  the  rate  of  taxation  is  fixed  by  the 
county  levy  court;  but  after  the  valuation 
is  made  by  the  board  the  auditor  must  give 
notice  to  the  railroad  company  and  the 
county  clerk  before  the  county  can  proceed 
to  collect  the  taxes.  Kentucky  C.  R.  Co.  v. 
Pendleton  County,  {Ky.)  2  S.  W.  Rep.  176. 

Where  railroad  property  has,  since  it  was 
purchased  by  a  new  company,  been  increased 
in  value  by  the  addition  or  renovation  of 
cross  ties,  rolling  stock,  and  other  append- 
ices, and  by  having  been  made  part  of  a 
system  doing  increased  business,  instead  of 
an  Isolated  road,  as  was  the  case  when  pur- 


chased, it  is  liable  to  taxation  in  any  county 
where  it  may  be  situated,  as  other  property 
therein.  And  in  imposing  the  taxation  the 
lower  court  ought  to  have  deducted  the 
value  of  the  property  at  the  time  it  was 
purchased  from  the  value  as  it  now  exists 
in  the  counties  seeking  to  tax  It.  Louis- 
ville &*  N.  R.  Co.  V.  Hopkins  County,  37 
Am.  5-  Effg.  R.  Cas.  400.  87  Ky.  605.  9  5.  W. 
Rep.  497. 

A  provision  in  the  charter  of  a  company 
regulating  the  mode  of  assessing  its  prop- 
erty, and  thus  exempting  it  from  the  general 
law  applicable  to  other  companies,  confers 
a  mere  personal  privilege  not  transferable  by 
sale  or  succession.  And  where  a  company 
whose  charter  confers  such  a  privilege  sells 
to  another  company  its  property  and  fran- 
chises, an  act  of  the  legislature  investing 
the  purchasing  corporation  "with  all  the 
powers,  privileges,  rights,  immunities,  and 
franchises  "  of  its  vendor  does  not  confer 
upon  it  the  privilege  possessed  by  its  vendor 
as  to  the  assessment  of  its  property.  Ken- 
tucky C.  R.  Co.  V.  Com.,  87  Ky.  661, 10  5.  IV. 
Rep.  269. 

Under  Gen.  Stat,  (old  ed.),  ch.  23,  stock- 
holders were  required  to  list  and  pay  taxes 
on  their  stock  in  every  case  in  which  the 
corporation  itself  was  not  expressly  required 
to  report  a'ld  pay  tax  ;  and  where  the  stock- 
holders aie  required  to  list  and  pay  tax  on 
their  stock,  the  corporation  is  not  liable  for 
tax  on  its  property.  It  is  immaterial  whether 
the  stockholders  had  or  had  not  listed  their 
stock  for  taxation,  as  required  by  the  stat- 
ute. Louisville  &*  E.  Mail  Co.  v.  Barbour, 
88  Ky.  73, 9  5.  W.  Rep.  516.— Distinguish- 
ing Louisville  &  N.  R.  Co.  v.  Com.,  1 
Bush  (Ky.)  250. 

If  a  tax  be  levied  for  a  specific  purpose,  as 
the  payment  of  bonds  issued  in  aid  of  a  rail- 
road, the  order  for  the  levy  must  show  that 
it  was  levied  for  that  purpose.  Louisville 
&*  N.  R.  Co.  v.  Com.,  41  Am.  &>  Et^.  R, 
Cas.  595,  89  Ky.  531,  12  S.  fV.  Rep.  1064. 

Although  the  county  court  of  claims 
cannot  levy  an  ad  valorem  tax  to  meet  the 
general  indebtedness  of  the  county,  unless 
authorized  to  do  so  by  the  legislature,  yet, 
as  it  has  jurisdiction  of  the  subject  of  the 
general  indebtedness  of  the  county,  if  it 
makes  a  levy  in  excess  of  its  authority  in 
the  particular  case  the  act  is  a  mere  irregu- 
larity and  not  a  want  of  jurisdiction,  and 
hence  may  be  validated  by  the  legislature. 
Louisville  &*  N,  R.  Co.  v.  Bullitt  County,  93 


Kf!' 


'i      \ 


'.1       I :'  1 


I 


.  in  '■ 


11 


I 


TAXATION,  262-204. 


A>.  280, 17  5.  tV.  Rep.  633.— Distinguish* 
INC  Slaughter  v.  Louisville,  89  Ky.  112. 
Following  Marion  County  v.  Louisville 
&  N.  R.  Co..  91  Ky.  388. 

202.  Louisiana.  —  An  assessment  of 
the  capital  stock  of  a  corporation  at  its  par 
value,  when  the  evidence  shows  that  it  has  a 
higher  market  value,  is  a  valid  assessment. 
St.  Charlti  St.  R,  Co.  v.  Board  of  Assessors, 
31  La.  Ann.  852. 

The  taxable  value  of  that  portion  of  the 
capital  of  a  corporation  represented  by  the 
shares  of  its  stock  is  the  market  value  of 
those  shares.  New  Orleans  &»  C.  R.  Co.  v. 
Board  of  Assessors,  32  La.  Ann.  19. 

The  assessment  of  "  the  capital "  of  a 
corporation  need  not  particularize  every 
element  of  value  entering  therein.  It  need 
only  be  made  in  general  terms.  New  Or- 
leans &•  C.  R.  Co.  v.  Board  of  Assessors,  32 
La.  Ann.  19. 

The  law  authorized  the  assessments  under 
the  head  of "  capital "  of  all  capital  of  corpo- 
rations "  not  invested  in  real  estate,"  and 
such  assessment  is  not  void  for  defective 
description  because  not  setting  out  the 
particular  items  and  objects  in  which  the 
capital  is  invested.  New  Orleans  v.  New 
Orleans,  St.  L.  &»  C.  R.  Co.,  37  La.  Ann.  45. 

The  actual  cash  value  of  property  is  the 
constitutional  basis  of  its  taxation.  M<»-- 
gan's  L.  &*  T.  R.  &*  S.  Co.  v.  Board  of 
Reviewers,  33  Am.  &*  Eng.  R.  Cas.  438,  41 
La.  Ann.  11 56,  3  So.  Rep.  507. 

The  market  value  of  its  stocks  or  bonds 
is  one  of  the  truest  criteria  of  the  value  of 
a  road;  yet  it  does  not  hold  when  the 
corporation  becomes  insolvent.  Morgan's 
L.  &*  T.  R.&*  S.  Co.  V.  Board  of  Reviewers, 
33  Am.  &>  Eng.  R.  Cas,  438,  41  La.  Ann. 
1156,  3  So.  Rep.  507. 

Neither  the  price  of  investment  in,  nor 
the  net  revenues  or  profits  earned  by,  a 
railroad,  is  the  fixed  criterion  of  value  in 
assessment  matters.  Morgan's  L.  S-  T.  R. 
&•  S.  Co.  V.  Board  of  Reviewers,  33  Am.  &* 
Eng.  R.  Cas.  438,  41  La.  Ann.  11 56,  3  So. 
Rep.  507. 

There  exists  no  rigid  rule  for  the  valua- 
tion of  property,  which  is  affected  by  a  mul- 
titude of  circumstances  which  no  rule  can 
provide  for.  The  assessor  must  consider 
all  these  circumstances  and  elements  of 
value,  and  must  exercise  a  prudent  discre* 
tion  in  reaching  a  conclusion.  This  maxim 
applies  with  equal  force  to  the  board  of 
reviewers.    Morgan's  L.  d*  T.  R.&*  S.  Co. 


V.  Board  of  Reviewers,  33  Am.  &*  Eng.  R. 
Cas.  438,  41  La.  Ann.  11 56,  3  So.  Rep.  507. 

The  earning  capacity  of  a  company  forme 
a  basis  of  estimating  the  values  for  the  pur- 
poses  of  taxation.  New  Orleans  City  &•  L. 
R.  Co.  v.  New  Orleans,  44  La,  Ann.  1053,  1 1 
So.  Rep.  687. 

The  earning  capacity  of  the  franchises  of 
a  city  railroad  corporation  is  the  true  and 
statutory  basis  of  their  assessment  for  taxa- 
tion. New  Orleans  City  &*  L.  R.  Co.  v.  New 
Orleans,  54  Am.  &*  Eng.  R.  Cas.  297, 44  La. 
Ann.  1055,  II  So.  Rep.  820. 

The  assessment  of  the  value  of  a  fran- 
chise measured  chiefly  by  the  earning  capac- 
ity of  the  corporation  is  a  proper  assessment. 
Crescent  City  R.  Co.  v.  New  Orleans,  44  La. 
Ann.  1057.  II  So.  Rep.  681. 

203.  Maine.  —  An  act  incorporating  a 
company  among  other  things  authorized  it 
to  "  procure,  purchase,  and  hold  in  fee  sim- 
ple, improve  and  use  for  all  purposes  of 
business,  to  be  transacted  on  or  by  means 
of  siid  railroad,  lands  or  other  real  estate, 
and  to  manage  and  dispose  thereof  as 
they  may  see  fit";  and  provided  that  "  the 
capital  stock  of  said  company  may  consist 
of  $300,000,  and  shall  be  divided  into  shares 
of  $100  each,  to  be  holden  and  considered 
as  personal  estate."  Held,  that  the  real 
estate  owned  and  used  by  the  company, 
either  as  a  railroad  or  as  a  depot,  was  not 
subject  to  taxation,  otherwise  than  as  per- 
sonal estate,  unless  the  legislature  should 
specifically  prescribe  diilerently.  Bangor  &* 
P.  R.  Co.  V.  //arris,  21  Me.  533.— APPLIED 
IN  Tallman  v.  Butler  County  Treasurer,  12 
Iowa  $31.  Distinguished  in  Cumberland 
Marine-  R.  Co.  v.  Portland,  37  Me.  444 ; 
People  ex  rel.  v.  Com'rs  of  Taxes,  2  Am.  tc 
Eng.  R.  Cas.  343.  82  N.  Y.  459. 

A  provision  in  a  railroad  charter  to  the 
effect  that  the  whole  property  shall  be  di- 
vided into  shares  which  shall  be  considered 
in  all  respects  as  personal  estate  is  only  in- 
tended to  define  the  interest  of  stockhold- 
ers, and  does  not  prevent  the  taxation  of 
real  estate  belonging  to  the  company.  Cum- 
berland  Marine  R.  Co.  v.  Portland,  37  Me. 
444.— Distinguishing  Bangor  &  P.  R.  Co. 
V.  Harris,  21  Me.  533. 

204.  Maryland.— The  proper  principle 
of  valuation  to  be  adopted  in  taxing  the 
property  of  a  railroad  is  to  tax  the  build- 
ings, steamboats,  and  rails,  as  of  the  value 
they  bear,  irrespective  of  their  being  por- 
tions of  a  railroad,  and  to  tax  the  land  as 


TAXATION,  266. 


955 


Rtp.  507. 
pany  forms 
For  the  pur- 
City  &*  L. 
ftn.  1053,  II 

'anchises  of 
e  true  and 
nt  for  taxa- 
Co.  V.  AVw 
397,  U^a. 

of  a  fran- 
ningcapac- 
assessment. 
'ans,  44  La. 

rporating  a 
ithorized  it 

in  fee  sim- 
iurposes  of 
tr  by  means 
real  estate, 
thereof  as 
1  that  "  the 
may  consist 

into  shares 

considered 
at  the  real 
company, 
ot,  was  not 
lan  as  per- 
ure  should 

Bangor  &» 
—Applied 
reasurer,  12 
Cumberland 
Me.  444; 
!S,  2  Am.  & 

irter  to  the 
ihall  be  di- 

considered 
!  is  only  in- 

stockhold- 
taxation  of 
pany.  Cum- 
and,  37  Mt. 
Sc  P.  R.  Co. 

ter  principle 

taxing  the 

the  build- 

)f  the  value 
being  por- 
the  land  as 


land,  and  not  as  of  increased  value  by  reason 
of  its  being  used  as  a  railroad.  Tax  Casts, 
liGill  &»J.{Md.)  117. 

A  city  leased  certain  lots  to  a  company  for 
ninety-nine  years,  renewable  forever,  which 
lots  the  company  improved  for  depot  and 
shop  purposes.  Held,  that  the  lots  should  be 
assessed  only  with  the  value  of  the  leasehold 
estate,  subject  to  the  rent  reserved  in  the 
lease,  the  interest  of  the  city  in  the  prem- 
ises being  exempt  from  taxation.  Philadel- 
phia, W.  &*  B.  R.  Co.  V.  Appeal  Tax  Court, 
50  Md.  397, 

In  such  case  the  improvements  placed 
upon  the  lots  by  the  company  are  subject 
to  separate  assessments,  and  are  properly 
assessed  to  the  company  at  their  full  assess- 
able value.  Philadelphia,  W.  &*  B.  R.  Co. 
V.  Appeal  Tax  Court,  50  Md.  397. 

Where  a  company  occupies  real  estate  in 
a  city  under  an  ordinance  providing  for  a 
formal  lease  to  the  company  for  ninety-nine 
years,  renewable  forever,  the  company  must 
be  regarded  as  the  substantial  owner  of  the 
leasehold  interest  in  the  property,  and  is 
liable  to  be  assessed  for  the  value  of  the 
leasehold  interest,  subject  to  the  rental  fixed 
by  the  ordinance.  Appeal  Tax  Court  v. 
Western  Md.  R.  Co.,  50  Md.  274.      , 

An  easement  in  the  bed  of  a  public  street, 
enjoyed  by  a  company  for  the  purpose  of  its 
track,  may  be  assessed  and  taxed  as  real 
estate ;  so  may  a  tunnel  under  a  street. 
Appeal  Tax  Court  v.  Western  Md.  R.  Co., 
10  Md.  274. 

Md.  Act  of  1878,  ch.  178,  imposed  upon 
the  tax  commission  the  same  duties  as  to 
the  assessment  of  railroad  property  that 
formerly  belonged  to  the  comptroller  by 
the  act  of  1874,  ch.  483;  therefore  the  tax 
commission  had  power  to  assess  the  prop- 
erty of  a  company  for  municipal  taxation 
for  the  years  1879  and  1880.  Mayor,  etc.,  of 
Baltimore  v.  Baltimore  City  Pass.  R.  Co.,  7 
Am.  «S-  Efig.  R.  Cas.  362,  57  Md.  31. 

Where  a  portion  of  the  line  of  a  street 
railroad  extends  beyond  the  city  limits,  and 
the  company  has  kept  no  account  of  the 
passengers  traveling  upon  such  portion,  the 
gross  earnings  of  the  company  within  the 
city,  upon  which  the  percentage  payable  to 
the  city  for  the  use  of  its  streets  in  terms  of 
the  charter  is  chargeable,  will  be  computed 
in  the  proportion  that  the  number  of  miles 
traveled  by  the  cars  inside  of  the  city  limits 
bears  to  the  total  mileage  traveled  by  said 
cars.  Baltimore  Union  Pass.  R.  Co.  v.  Mayor, 


etc.,  of  Baltimore,  41  Am.  ^  Etig.  R.  Cas. 
646, 71  Md.  405, 18  Atl.  Rep.  917.— Quoting 
State  V.  Philad'^'iphia,  W.  &  B.  R.  Co.,  45 
Md.  384. 

265.  Massachusetts.  —  A  compai./ 
gave  in  a  tax  list  as  follows :  "  To  the  as^ 
sessors  of  the  city  of  C.  The  F.  R.  Co.  sub- 
mit and  bring  in  the  following  list  of  all  the 
estate  of  said  company,  in  said  C,  subject  to 
taxation,  being  all  the  real  estate  of  said 
company  in  said  J.  except  that  embraced  and 
contained  in  the  location  of  said  company's 
railroad,  made  and  filed  according  to  law, 
that  is  to  say,  three  hundred  and  forty-eight 
thousand  and  three  hundred  and  ten  square 
feet  of  land  and  wharf  with  the  buildings 
thereon— the  same  lying  between  Prison 
Point,  so  called,  and  Warren  avenue,  valued 
at  $350,000.  F.  R.  Co.,  by  M.  D.  B.,  Treas- 
urer. Then  personally  appeared  M.  D.  B., 
Treasurer,  and  made  oath  that  the  above 
statement  by  him  subscribed  was  true.  T. 
G.,  Assessor."  Held,  sufficient  under  Mass. 
St.  1853,  ch.  319,  §  3.  Charlestown  v.  Mid- 
dlesex County  Com'rs,  t  Allen  {Mass.)  199. 

A  corporation,  having  reserved  profits  to 
an  amount  exceeding  twenty  per  cent,  of  its 
capital,  and  having  authority  to  create  addi- 
tional stock,  declared  a  dividend  of  twenty 
per  cent,  on  its  existing  shares,  payable  in 
six  years  to  their  then  holders,  either  in 
money  or  stock  at  the  option  of  the  cor- 
poration, interest  thereon  to  be  paid  mean- 
while on  a  certain  day  in  each  year  to  the 
holders  on  that  day.  After  declaring  this 
dividend,  it  created  new  stock  of  the  same 
par  value ;  but  the  market  value  of  the  old 
shares,  to  which  the  privilege  of  the  divi- 
dend was  thus  attached,  was  twenty  per 
cent,  more  than  that  of  the  new  shares,  and 
the  difference  was  owing  wholly  to  this 
privilege.  Held,  that  in  computing  the 
true  value  of  the  corporate  franchise  for 
the  purposes  of  taxation,  under  Mass.  St. 
of  1865,  ch.  283,  §  4 — requiring  the  com- 
missioner's report  of  resources,  etc.,  upon 
the  treasurer's  sworn  return — the  tax  com- 
missioner was  not  in  error  in  estimating  the 
fair  cash  valuation  of  all  the  shares  of  the 
capital  stock  by  adding  the  actual  market 
value  of  the  old  shares  to  that  of  the  new 
shares,  without  making  any  deduction  on 
account  of  the  dividend.  Boston  &*  L,  R. 
Co.  V.  Com.,  100  Mass.  399. 

Under  Mass.  Pub.  St.  ch.  13,  §§  38,  40. 
which  provide  that  in  taxing  a  railroad  cor- 
poration the  aggregate  value  of  the  shares 


M6 


TAXATION,  266-269. 


;     ' 


i    I 


.1 


if'i|. 


lr.n    i\ 


In  the  ctpital  stock  is  to  be  takon  as  a  basis 
of  assessment,  the  commonweal'.,'.!  cannot 
include,  in  estimating  such  value,  proposed 
and  unissued  new  shares  in  the  capital  stock. 
Boston  &»  A.  R.  Co.  v.  Com.,  157  Mass.  68, 
31  N.  E.  R*p.  696. 

266.  BUchigan.  —  Proceedings  under 
the  statute  (Laws  1873,  p.  89).  on  an  appeal 
to  the  circuit  court  from  an  assessment  of 
taxes  made  by  the  auditor>genera1,  are  not 
judicial,  in  the  proper  sense  of  that  term, 
and  cannot  be  reviewed  on  writ  of  error. 
Auditor'General  v.  Pullman  Palace  Car  Co., 
l\Mich.  59. 

Where  a  statute  requires  a  corporation  to 
be  taxed  at  a  certain  rate  upon  its  capital 
and  on  loans  employed  in  the  state,  and  the 
auditor-general  merely  computes  the  amount 
of  the  tax  on  the  basis  of  reports  made  to 
him  by  the  con.pany,  but  without  passing 
judgment  upon  their  correctness,  the  state 
is  not  precluded  from  enforcing  payment 
of  the  correct  amount.  Lake  Shore  &*  M. 
S.  R.  Co.  V.  People,  46  Mich.  193,  9  N.  W. 
Rep,  249. 

A  company  is  taxed,  not  for  the  face  of 
bonds  upon  which  it  negotiates  a  loan,  but 
for  the  amount  of  the  loan.  Lake  Shore  &* 
M.  S.  R.  Co.  V.  People,  46  Mich.  193,  9  N. 
W.  Rep.  249. 

Stock  dividends  and  issues  of  stock  pro- 
portioned to  that  previously  held  by  share- 
holders must  stand  on  the  same  footing 
with  original  stock,  and  should  be  taxed 
as  far  as  it  is  considered  paid  in.  Lake 
Shore  &»  M.  S.  R.  Co.  v.  People,  46  Mick. 
193,  9  A''.  W.  Rep.  249. 

A  company  was  established  in  Michigan 
under  a  special  charter  which  defined  the 
basis  on  which  it  was  to  be  taxed.  The  state 
afterwards  authorized  it  to  consolidate  with 
an  Indiana  company,  with  no  change  in  the 
basis  of  taxation,  and  a  general  railroad  law 
was  passed  at  about  the  same  time.  This  law, 
and  various  similar  acts  afterwards  passed, 
provided  that  companies  within  the  state 
might  consolidate  with  companies  in  other 
states,  and.  that  every  corporation  formed 
under  the  law  should  be  taxed  at  a  certain 
rate.  The  consolidated  company  mean- 
while became  part  of  the  Lake  Shore  & 
Michigan  Southern  Ry.  Co.  A  writ  of  man- 
damus sought  for  by  the  state  treasurer 
to  compel  the  auditor-general  to  assess 
the  company  under  the  general  law  was 
denied ;  it  is  not  a  corporation  formed 
under  that  law,  and  taxes   are  properly 


assessed  upon  the  bails  fixed  by  the  orig- 
inal special  charter.  State  Treasurer  v. 
Auditor-General,  13  Am.  &*  Eng.  R.  Cat. 
296,  46  Mich.  224,  9  N.  W.  Rep.  258. 

267.  Minnesota.  —  Under  Gen.  St. 
1878,  ch.  4,  §  I,  providing  that  in  the  con- 
struction of  a  statute  the  words  "  real  estate" 
shall  include  lands,  tenements,  heredita- 
ments, and  all  rights  thereto  and  interests 
therein  "  unless  such  construction  would  be 
inconsistent  with  the  manifest  intent  of  the 
legislature,  or  repugnant  to  the  context  of 
the  same  statute,"  the  track  of  a  street  rail- 
way is  not  assessable  as  real  estate  for  local 
improvements.  State  ex  rel.  v.  Ramsey 
County  Dist.  Court,  13  Am.  5-  Eng.  R.  Cas. 
419,  31  Minn.  354,  17  N.  W.  Rep.  954. 

A  company  organized  for  and  doing  the 
business  of  an  ordinary  railroad,  transport- 
ing passengers  and  freight,  is  subject  to  tax- 
ation only  in  accordance  with  Gen.  Laws 
1887,  ch.  II — that  is,  by  the  rule  of  percent- 
age on  its  gross  earnings  —  although  the 
road  is  only  three  miles  in  extent,  the  cars 
being  operated  by  a  steam  locomotive  over 
two  miles  of  the  road,  and  by  cable  up  a 
steep  ascent  of  one  mile.  State  ex  rel.  v. 
District  Court,  54  Minn.  34,  55  M  W. 
Rep.  816. 

268.  Mississippi. — Under  section  3  of 
the  charter  of  Vicksburg  (Laws  1884,  p. 
422),  the  action  of  the  mayor  and  aldermen 
in  raising  an  assessment  of  property  based 
on  the  valuation  rendered  by  the  owner  will 
be  void,  unless  there  has  been  notice  to  the 
owner,  and  the  assessor  has  complied  with 
section  30  of  the  charter  by  reporting  to  the 
board  the  undervaluation  with  his  "state- 
ment of  what  he  believes  to  be  the  reason- 
able taxable  value  of  said  property."  Ala- 
bama &*  V.  R.  Co.  V.  Brennan,  69  Miss.  103, 
10  So.  Rep,  451. 

The  above  requirements  cannot  be  dis- 
pensed with  by  the  board.  They  are  not 
abrogated  or  affected  by  section  33  of  said 
charter,  which  declares  that  the  assessment 
is  to  conform  to  such  time  and  method  as 
may  be  prescribed  therefor  by  ordinance. 
Alabama  &»  V.  R.  Co.  v.  Brennan,  69  Miss. 
103,  \oSo.  Rep.  451. 

269.  Missouri.  —  (I)  In  general.— Kn. 
assessment  of  stock  of  a  railroad  company 
in  the  name  of  the  shareholders,  instead  of 
that  of  the  corporation,  is  irregular.  But 
the  action  of  the  assessor  in  such  case  is 
judicial,  and  where  it  appears  from  the  tax 
list  that  he  had  jurisdiction  over  the  prop* 


TAXATION,  269. 


967 


by  the  orig« 

Trtasurtr  v. 

Ing.  H.  Cas. 

•p.  258. 

if   Gen.    St. 

in  the  con* 

real  estate  " 

tt,  heredita- 

,nd  interests 

on  would  be 

ntent  of  the 

e  context  of 

a  street  raiU 

ate  for  local 

V.  Ramsey 

Eng.  R.  Cas. 

tp'  954. 
d  doing  the 
d,  transport- 
ibject  to  tax- 
Gen.  Laws 
e  of  percent- 
Ithough  the 
ent,  the  cars 
>niotlve  over 
J  cable  up  a 
Ut  ex  rel.  v. 
,  55  N.   IV. 

'  section  3  of 
iws  1884,  p> 
nd  aldermen 
operty  based 
le  owner  will 
notice  to  the 
implied  with 
orting  to  the 
1  his  "state- 
e  the  reason- 
lerty."  Ala- 
59  Miss.  103, 

nnot  be  dis- 
'hey  are  not 
>n  33  of  said 
e  assessment 
1  method  as 
y  ordinance. 
an,  69  Miss. 

general, — An 
lad  company 
-9,  instead  of 
egular.  But 
such  case  is 
from  the  tax 
er  the  prop* 


erty,  i.  e.,  that  it  was  liable  to  taxation  in 
some  form  or  other,  the  collector  will  not 
be  liable  to  the  taxpayer  for  the  amount  col- 
lected under  such  assessment,  notwithstand- 
ing its  irregularity.  In  the  case  supposed 
the  tax  bill  certified  to  the  collector  is  a  suf- 
ficient warrant,  and  will  justify  him  in  the 
proceeding.  North  Mo,  R.  Co.  v.  Maguire, 
49  Mo.  482,  I  Am.  Ry.  Rep.  43.— Follow- 
ing St.  Louis  Mut.  L.  Ins.  Co.  v.  Charles, 
47  Mo.  462. 

The  assessor  of  a  county  for  1869  made 
no  assessment  of  the  property  of  a  railroad, 
and  his  assessment  book,  when  returned, 
contained  no  entry  in  relation  to  said  road. 
Subsequently,  the  county  board  of  equaliza- 
tion verbally  ordered  an  entry  to  be  made 
on  the  book  of  an  assessment  of  taxes 
against  the  road  for  the  year  1869,  made  by 
themselves.  This  order  and  entry  were  made 
without  notice  to  the  railroad.  No  taxes 
were  charged  against  it  on  the  tax  book  for 
1869,  or  on  the  delinquent  book  for  that 
year,  until  Dec,  1871,  when  an  entry  was 
made  by  order  of  the  county  court  of  that 
date,  without  notice  to  the  company,  order- 
ing that  the  assessment  made  by  tlie  board 
of  equalizcition  and  the  taxes  thereon  be 
placed  on  a  copy  to  be  made  by  the  clerk 
for  the  use  of  the  collector.  Held,  that 
such  assessment  was  clearly  without  au- 
thority of  law  and  void :  (i)  because  no 
notice  was  given  as  required  by  the  act 
of  1868;  (2)  because  the  board  had  no  au- 
thority to  make  an  assessment.  It  had 
power  to  increase  or  diminish  the  valuation 
made  by  the  assessor,  but  had  no  power  to 
make  an  assessment  of  its  own.  Pacific  R. 
Co.  V.  Cass  County,  53  Mo.  17,  12  Am.  Ry. 
Rep.  336. 

An  entry  correcting  the  books  of  a  county 
assessor  is  not  objectionable  merely  because 
the  entry  is  made  by  a  deputy  instead  of  the 
county  clerk ;  nor  because  the  order  of  the 
county  board  of  equalization  directing  the 
assessment  to  be  placed  on  the  books  is  en- 
tered on  the  journal  of  proceedings  after 
the  adjournment  and  dissolution  of  the 
board ;  nor  because  the  assessment,  having 
been  omitted  by  mistake,  is  entered  the 
year  subsequent,  without  notice  of  the  time 
of  the  entry.  Pacific  R.  Co.  v.  County  Clerk, 
57  Mo.  223. 

Although  it  appeat^r  'rom  an  allegation  in 
the  petition  that  the  board  of  equalization 
assessed  the  actual  value  of  railroad  prop- 
erty in  a  county,  instead  of  a  share  in  the 


BRSregate  valuation  proportional  to  the 
number  of  miles  of  road  within  the  county, 
as  required  by  law,  yet  if  from  the  genenil 
tenor  of  the  petition  it  appears  that  the  sum 
assessed  vas  ascertained  by  the  methods 
which  the  rw  prescribes,  the  pleading  will 
be  held  suf.cieut.  Washitigton  County  v. 
St.  Louis  c^  /.  M,  R.  Co.,  58  Mo.  372.— 
Quoted  in  Re  Railroad  School  Tax.  78 
Mo.  596;  H.iniiibal  &  St.  J.  R.  Co.  v.  State 
Board  of  Equalization,  64  Mo.  294. 

A  railroad  interest-fund  tax  and  railroad 
sinking-fund  tax,  not  being  state  taxes,  or 
taxes  necessary  for  paying  the  funded  or 
bonded  debt  of  the  state,  or  for  current 
county  expenditures,  or  for  schools  (Rev. 
St.  §  6798),  cannot  be  levied  by  the  county 
court  without  a  compliance  with  Rev.  St.  § 
6799.  Slate  ex  rel.  v.  Hannibiil  6-  St.  J.  R. 
Co.,  87  Mo.  236.— Applied  in  State  ex  rel. 
V.  Union  Trust  Co.,  92  Mo.  1 57.  Reviewed 
IN  Slate  ex  rel.  v.  Missouri  Pac.  R.  Co.,  92 
Mo.  137. 

The  statement  of  a  county  clerk  issued 
by  virtue  of  Missouri  Act  of  April  14,  1877, 
is  not  void  because  tlie  tax  is  designated  a 
delinquent  tax  of  1875  instead  of  1876,  it 
appearing  that  the  proper  tax  has  been 
levied  for  the  proper  period.  Morrison  v, 
St.  Louis,  I.  M.  &*  S.  R.  Co.,  96  Mo.  602,  9 
,S.  W.  Rep.  626,  10  S.  IV.  Rep.  148. 

An  order  issued  by  a  circuit  judge  in 
1882,  under  Rev.  St.  §  6799,  gives  to  a  county 
clerk  no  power  to  re-levy  a  railroad  interest- 
fund  tax  for  the  year  1880.  State  ex  rel.  v 
Wabash,  St.  L.  6-  P.  R.  Co.,  97  Mo.  296,  10 
S.  W.  Rep.  434. 

The  failure  of  a  county  clerk  to  sign  and 
seal  the  assessors'  book,  as  required  by 
Rev.  St.  §  6723,  renders  it  of  no  official 
validity  and  aflords  to  the  collector  no  au- 
thority or  protection  for  his  acts  in  enforc- 
ing the  taxes  contained  therein.  In  such 
case  he  must  be  regarded  as  a  trespasser  ab 
initio.  St.  Louis  &•  S.  F.  R.  Co.  v.  Apper- 
son,  97  Mo.  300,  10  S.  IV.  Rep.  478. — Quot- 
ing Kansas  City  v.  Hannibal  &  St.  J.  R. 
Co.,  81  Mo.  285. 

In  levying  a  tax  on  the  property  of  a 
company  for  the  purpose  of  building  a 
court  house,  there  must,  under  Rev.  St. 
§§  6879,  6881,  be  an  order  of  the  county 
court  levying  the  tax  before  the  county 
clerk  can  extend  the  same  on  the  tax  books, 
and  if  the  county  clerk  of  his  own  head, 
without  such  order  of  the  county  court,  ex- 
tends such  taxes,  the  same  are  void.    St* 


[: 


.■•;2» 


:;  't> 


958 


TAXATION,  269. 


Ltui's  &»  S.  F.  R.  Co.  V.  ApptrtoH,  97  Mo. 
300,  10  5.  W.  Rtp.  478. 

An  order  of  a  county  court  which  directs 
the  cleric  to  extend  the  specified  tax  at  a 
specified  rnte  upon  the  tax  books  for  the 
omitted  years  is  a  sufficient  levy.  Statt  ex 
rtl.  V.  Hannibal  &»  St.  J.  li.  Co.,  41  Am.  &» 
Etig.  K.  Cas.  581,  101  Mo.  136,  13  S.  W. 
Hep.  505. 

Where  the  county  court  open^  a  regular 
term  and  adjourns  from  day  to  day  for  a 
number  of  days,  the  adjournments  are  a 
part  of  the  regular  term  within  the  mean- 
ing of  Rev.  St.  1879,  §  6879,  providing  that 
taxes  against  a  railroad  company  are  to  be 
levied  "  at  a  regular  term  of  said  court  if  in 
session  at  the  time."  State  ex  rd.  v.  HaU' 
nibal  5-  St.  J.  Ji.  Co..  41  Am.  &*  Eng.  R. 
Cas.  581,  loi  Mo.  136,  13  S.  IV.  Rep.  505. 

A  levy  by  the  county  court  to  pay  a  rail- 
road township  tax  gives  rise  to  the  pre- 
sumption, in  the  absence  of  evidence  to 
the  contrary,  that  the  preliminary  order 
required  to  be  made  by  the  circuit  court, 
under  the  Act  of  March  8,  1879  (Rev.  St. 
1879,  §  6799),  has  been  complied  with.  State 
ex  rel.  v.  Hannibal &*  St.  J.  R.  Co.,  41  Am. 
&*  Eng.  R.  Cas.  581,  loi  Mo.  136,  13  S.  W. 
Rep.  505. 

A  railroad  company's  buildings  are  sub- 
ject to  taxation  like  other  property  at  the 
local  rates  fixed  in  the  district  where  situ- 
ated, and  not  at  the  average  rate  through- 
out the  county.  State  ex  rel.  v.  Hannibal  &^ 
St.  J.  R.  Co.,  1 10  Mo.  265,  19  S.  tV.  Rep.  816. 

Where  the  county  clerk  Axes  the  rate, 
not  from  the  official  returns  of  the  local 
school  hoards,  but  from  information  ob- 
tained by  him  from  consultation  with  the 
school  officers  of  the  county,  the  tax  levy  is 
invalid.  State  ex  rel,  v.  Hannibal  &*  St,  J. 
R.  Co.,  no  Mo.  265,  19  5.  W.  Rep.  816. 

(2)  Act  of  1 87 1. —The  Act  of  March  10, 
1871,  providing  for  a  uniform  system  of  as- 
sessing and  taxing  railroads,  construed  to 
mean  that  all  railroad  property  in  the  state 
is  to  be  assessed  by  the  state  board  of  equal- 
ization ;  that  it  is  to  ascertain  the  value 
of  such  property  within  the  limits  of  any 
city  and  transmit  that  amount  as  the  proper 
assessment  in  favor  of  the  city ;  and  that 
its  action  in  this  regard  is  exclusive  of  that 
of  all  other  officers,  state  or  municipal.  It 
follows  that  the  above  act  had  the  effect 
of  repealing  a  provision  in  a  city  charter 
authorizing  it  to  assess  property  within  its 
limit!.  State  *x  rel,  v.  Severance,  55  Mo.  378. 


—Quoted  in  Re  Railroad  School  Ttx,  78 
Mo.  596. 

Under  the  Act  of  Sept.  20,  i8$3.  \  3,  it 
became  the  duty  cf  the  president  of  the 
Hannibal  &  St.  Joseph  R.  Co.  to  furnish 
an  annual  statement  under  oath  to  the  state 
auditor,  showing  the  actual  value  of  the  rail- 
road property,  from  which  statement  that 
officer  shall  assess  the  railroad  state  tax. 
//#/</,  that  this  provision  did  not  amount  to 
a  contract  between  the  state  and  company 
which  rendered  invalid  the  Act  of  March 
10,  1 87 1,  subjecting  the  road  to  assessment 
for  taxation  by  a  special  board  of  equaliia- 
tion;  and  the  latter  act,  so  far  as  incon- 
sistent with  the  former,  repealed  it.  Statt 
V.  Hannibal  &*  St.  J.  R.  Co.,  60  Mo.  143,  9 
Am,  Ry.  Rep.  239.— Distinguishing  State 
V.  Hannibal  &  St.  J.  R.  Co.,  37  Mo.  265; 
Hannibal  &  St.  J.  R.  Co.  v.  Shacklett,  30 
Mo.  550. 

In  fixing  a  valuation  under  the  statute 
(Acts  1871.  p.  58)  upon  the  property  of  a 
railroad  failing  to  make  returns  as  provided 
by  the  act,  the  board  of  equalization  is  not 
confined  to  testimony  which  would  je  com- 
petent in  a  court  of  justice,  and  is  not 
compelled  to  examine  witnesses  under  oath. 
State  V.  St.  Louis,  K.  C.  &*  N.  R.  Co.,  8  Mo. 
App.  582,  app'x. 

(3)  Act  of  1873.— The  Act  of  March  24, 
1873  (Acts,  p.  119),  relating  to  taxation  of 
railroads,  does  not  authorize  the  clerk  of 
the  county  court  to  certify  the  amount  due 
from  railroads  for  city  taxes  from  the  cer- 
tificate of  the  rate  of  taxation  levied  by 
the  city,  received  by  him  from  the  city  clerk. 
The  county  clerk  can  make  such  certificate 
only  from  an  order  of  the  county  court, 
spread  upon  its  records ;  otherwise  the  col- 
lection of  the  tax  cannot  be  enforced.  Kan- 
sas City  V.  Hannibal  6-  St.  /.  R.  Co.,  22  Am. 
&*  Eng.  R.  Cas.  239,  81  Mo.  285. 

The  Act  of  March  24,  1873,  §  12,  provides 
that  for  the  purpose  of  levying  school  taxes 
in  counties  on  railroad  property,  the  county 
courts  shall  ascertain  from  the  returns  in 
the  office  of  the  clerk  of  the  county  court 
the  average  rate  levied  for  school  purposes 
by  the  school  boards,  and  shall  charge  to 
the  railroad  companies  taxes  at  said  rates 
on  the  proportionate  value  of  their  prop- 
erty, certified  to  the  clerk  by  the  state  au- 
ditor. The  Act  of  March  26,  1874,  §  65, 
requires  the  district  boards  to  ascertain  and 
report  to  thecrur.y  court  the  amount  they 
will   require  /cr  school  purposes  for  the 


TAXATION,  269. 


959 


lool  Tm,  78 

i8$3.  S  3,  it 

ent  of  tha 

to  (urnifh 

to  the  state 

e  of  the  rail* 

ement  that 

I  state  tax. 

amount  to 

d  company 

t  of  March 

assessment 

of  equaliia- 

r  as  incon- 

d  it.    Stan 

AlO'  «43.  9 
HiNG  State 

17  Mo.  265 ; 
lacklett,  30 

the  statute 
operty  of  a 
as  provided 
ition  is  not 
uld  jecom- 
and  is  not 
under  oath. 
f.  Co.,  8  Mo. 

March  24, 
taxation  of 
lie  clerk  of 
mount  due 
>m  the  cer- 
1  levied  by 
e  city  clerk. 
I  certificate 
inty  court, 
ise  the  col- 
rced,  Aa«- 
Co.,iiAm. 

2,  provides 
:hooI  taxes 
the  county 
returns  in 
unty  court 
I  purposes 
charge  to 
said  rates 
heir  prop- 
!  state  au- 
"874.  §  65, 
lertain  and 
lount  they 
!8  for  the 


ensuing  year,  and  thereupon  the  county 
clerk  shall  assess  the  amount  so  returned  on 
all  taxable  property  in  said  districts,  as 
shown  by  the  last  annual  assessment.  The 
defendants  offered  to  prove,  by  the  records 
of  the  county  courts,  that  the  rate  for 
school  purposes  had  been  ascertained  by 
taking  the  amount  required  by  each  school 
board  and  dividing  it  by  the  total  property 
in  the  district,  exclusive  of  railroad  prop* 
erty,  as  shown  by  the  last  assessment,  and 
that  in  extending  this  rate  upon  the  taxable 
property,  the  valuation  of  the  railroad  prop- 
erty within  the  district  was  included.  ////</, 
inadmissible.  Kttchum  v.  Pacific.  X.  Co., 
ADi/I.  (U.S.)A^,n. 

(4)  Act  of  1875.— Under  the  act  of  1875 
relating  to  the  assessment  and  taxation  of 
railroad  property,  railroad  companies  are 
liable  to  pay  taxes  for  the  year  1876  on 
property  owned  Aug.  1,  1876,  at  the  same 
rates  as  were  levied  on  all  other  property 
owned  at  that  time,  for  the  year  1877.  Statt 
tx  rtl.  V.  Union  Trust  Co.,  68  Mo.  463.— AP- 
PLIED IN  State  ex  rel.  v.  Union  Trust  Co., 
92  Mo.  IS7.  Followed  in  State  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  71  Mo.  88. 

The  roadbed  of  a  railroad  is  chiefly  valu- 
able as  an  entirety,  and  its  subdivisions 
within  the  limits  of  a  county  or  a  school 
district  are  not  to  be  treated  as  local  prop- 
erty under  the  acts  of  1875  for  the  assess- 
ment and  distribution  of  railroad  taxes.  In 
re  Railroad  School  Tax,  17  Am.  &*  Eng.  R. 
Cas.  491, 78  Mo.  596. 

In  levying  taxes  on  railroad  property 
under  the  Act  of  March  15,  1875,  the  same 
rate  of  taxation  must  be  applied  to  it  as  to 
the  general  property  of  individuals.  State 
ex  ret.  v.  Missouri  Pac.  R.  Co.,  92  Mo.  137,  6 
S.  W.  Rep.  862. 

(5)  Constitutional  limitations. — Under  the 
new  Constitution  of  Missouri,  the  board  of 
equalization  created  by  art.  10,  §  18,  became 
at  once  the  only  board  for  those  purposes, 
and  was  clothed  with  all  the  powers  of  the 
previous  board.  Ketchum  v.  Pacific  R.  Co., 
A  Dill.  (U.S.)\\,n. 

After  the  adoption  of  the  Constitution  of 
187s,  and  until  the  passage  of  the  Act  of 
March  24,  1877  (Sess.  Acts  1877,  p.  405),  no 
authority  existed  for  levying  taxes  for  school 
purposes  in  districts,  exceeding  forty  cents 
on  the  $100  valuation.  Fifteen  days'  notice 
must  be  given  of  any  election  held  under 
that  act  for  the  purpose  of  authorizing  a 
tax  exceeding  forty  cents  on  the  (100  valu- 


ation. Statt  V.  St.  Louis,  K.  C.  b*  N.  R.  Co., 
10  Am.  &*  Eng,  R.  Cas.  6$],  75  Mo.  $36. 

The  Constitution  authorizes  the  limit  of 
forty  cents  on  the  $100  valuation  of  raiU 
road  property  (or  school  purposes  to  be 
increased  by  a  vote,  and  when  it  is  so 
increased  under  the  law  authorizing  an  elec- 
tion to  be  held  for  that  purpose,  the  in> 
creased  rate  becomes  the  constitutional 
limit  the  same  as  if  inserted  therein.  Chi- 
cago b*  A.  R.  Co.  V.  Lamkin,  97  Mo.  496, 10 
S.  IV.  Rep.  200. 

The  limitation  of  the  present  Constitu- 
tion as  to  the  rate  of  levy  for  taxes  applied 
only  to  years  subsequent  to  its  a'ioption  ;  it 
did  not  affect  levies  made  after  its  adoption 
for  years  prior  thereto.  State  ex  rel.  v. 
Hannibal  &*  St.  J.  R.  Co.,  42  Am.  &*  Eng. 
R.  Cas.  263,  101  Mo.  120,  13  5.  W.  Rep.  406. 

(6)  Board  0/  equalization. — Under  a  Mo. 
statute  constituting  a  board  of  equalization 
of  railroad  property,  which  was  required  to 
meet  once  a  year  and  adjust  and  equalize 
the  aggregate  valuation  of  each  company 
and  apportion  it  to  the  several  counties,  the 
result  to  be  certified  to  the  county  courts, 
whose  duty  it  was  to  make  the  levy  on  such 
valuation,  an  assessment  by  the  county  as- 
sessor, in  the  absence  of  action  by  the  board 
of  equalization,  and  a  levy  and  execution 
thereunder,  are  void.  State  ex  rel.  v.  St. 
Louis,  /.  M.  &»  S.  R.  Co.,  82  Mo.  683. 

Under  the  act  of  1871  creating  a  state 
board  of  equalization  to  adjust  and  equalize 
the  value  of  railroad  property  for  purposes 
of  taxation,  it  is  the  duty  of  the  railroads  to 
take  notice  of  the  time  and  place  of  the 
meeting  of  the  board  as  fixed  by  law.  State 
ex  rel.  v.  Hannibal  &•  St.  J.  R.  Co.,  42  Am. 
&*  Eng.  R.  Cas.  263,  101  Mo.  120,  13  S.  W. 
Rep.  406. 

The  law  did  not  require  that  the  evidence 
upon  which  the  board  based  its  valuation 
should  be  preserved,  nor  did  it  designate 
the  evidence  upon  which  such  valuation 
should  be  made.  State  ex  rel.  v.  Hannibal 
&»  St.  J.  R.  Co.,  42  Am.  &*  Eng.  R.  Cas.  263, 
loi  Mo.  120,  13  S.  W.  Rep.  406. 

The  fact  that  the  board  fixed  the  same 
valuation  for  the  company's  property  for 
the  preceding  years  that  it  did  for  the  year 
1872  does  not  raise  such  a  presumption  that 
it  acted  arbitrarily  and  without  evidence  as 
will  overcome  the  legal  presumption  that  it 
honestly  d  ischarged  its  duties.  State  ex  rel. 
v.  Hannibal  &*  St.  J.  R.  Co.,  42  Am.  &*  Eng. 
R.  Cas,  263,  loi  Mo.  120, 13  S.  W.  Rep.  406. 


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TAXATION,  270,  271. 


Courts  can  grant  relief  against  the  mis- 
take in  judgment  of  the  board  only  by 
direct  proceeding  in  a  manner  provided  by 
law.  Statt  ex  rtl,  v.  Hannibal  &-  St.  J.  R. 
Co..  43  Am.  &*  Eng.  R.  Cas.  263,  loi  Mo.  120, 
llS.lV.  Rep  406. 

Under  the  Missouri  statute  providing  for 
the  assessment  of  railroad  property  by  a 
state  board  of  equalization,  and  directing 
such  board  to  proceed  "  to  adjust  and  equal- 
ize the  aggregate  valuation  of  the  property 
of  each  one  of  the  railroad  companies  liable 
to  taxation  under  the  provisions  of  this 
act,"  the  board  is  only  authorized  to  equal- 
ize the  aggregate  valuation  of  the  county 
boards,  and  is  not  empowered  to  make  an 
assessment  de  novo,  Paul  v.  Pacific  R.  Co., 
^Dill.{U.  5.)35- 

But  if  the  board  should  transcend  its 
power  and  make  an  assessment  de  novo,  this 
would  not  vitiate  the  entire  tax,  but  would 
leave  the  final  valuation  as  fixed  by  the 
county  board.  Paul  v.  Pacific  R.  Co.,  4 
Dill.  {U.  S.)  35. 

The  companies  were  required  to  pay  taxes 
on  the  valuation  fixed  by  the  county  boards, 
and  the  collecting  officers  were  enjoined 
only  in  respect  of  the  excess  over  such 
valuation.  Paul  v.  Pacific  R.  Co.,  4  Dill. 
(U.S.)z^. 

A  mere  error  of  judgment  on  the  part  of 
the  assessing  officers,  as  to  the  valuation  of 
property,  is  not,  in  tlie  absence  of  fraud, 
subject  to  judicial  revision.  The  charge  of 
fraud  made  against  the  state  board  of 
equalization  was  not  sustained  by  the  proofs. 
Paulv.  Pacific  K.  Co.,  4  Dill.  {U.  S.)  33. 

Property  purchased  by  a  company  for 
future  yard  purposes,  and  in  tb  j  possession 
of  lessees  and  used  for  manufacturing  pur- 
poses, with  the  rigiit  reserved  to  the  lessees 
to  remove  their  buildings  therefrom  at  the 
end  of  the  lease,  does  not  fall  within  Mo. 
Rev.  St.  1879,  §  6r76,  providing  for  the  as- 
sessment ot  tracks,  etc.,  on  a  report  made  to 
the  state  auditor,  but  is  within  section  6866, 
and  is  assessable  as  local  property.  State  ex 
rel.  V.  St.  Louis  6-  S.  F.  R.  Co.,  1 17  Mo.  i, 
32  5".  W.  Rep.  910, 

270.  Montana.  — A  taxpayer  has  the 
right  to  have  his  real  and  personal  property 
separately  list>;d  and  valued,  and  he  has  the 
right  to  be  heard  before  the  proper  tribunal 
(the  board  of  equalization)  as  to  the  cor- 
rectness or  propriety  of  his  assessment,  and 
a  right  to  notice  of  the  proceedings  of  such 
a  tribunal  in  reference  to  the  same.    Such 


rights  are  constitutional.  Northern  Pac.  R. 
Co.  v.  Car  land,  17  Am.  &*  Eng.  R.  Cas.  364, 
5  Mont.  146,  174,  3  Pac.  Rep.  134. 

An  assessment,  in  order  to  be  valid,  must 
be  in  substantial  compliance  with  the  rev- 
enue laws  of  the  territory,  under  which 
real  and  personal  property  must  be  listed 
and  valued  separately,  to  enable  county 
commissioners  to  act  as  boards  of  equaliza- 
tion thereon,  and  an  assessor  is  required  to 
demand  a  list  of  property  under  oath  from 
the  officer  of  a  corporation  authorized  to 
furnish  the  same.  Northern  Pac.  R.  Co.  v. 
Car  land,  17  Am.  &*  Eng.  R.  Cas.  364, 5  Mont. 
146,  174,  3  Pac.  Rep.  134. 

271.  Nebraska.  — A  county  board  of 
equalization  of  taxes  has  no  power  to  meet 
and  reassess  property  for  taxation  at  any 
other  time  than  that  fixed  by  law,  and  it 
c^innot  increase  the  assessed  valuation 
without  notice  to  the  person  whose  inter- 
ests are  affected.  Sioux  City  &*  P.  R.  Co. 
v.  Washington  County,  3  Neb.  30. — Quoted 
IN  South  Platte  Land  Co.  v.  Buflalo  County 
Com'rs,  7  Neb.  253. 

The  word  "  rate,"  in  connection  with  the 
provision  of  a  statute  prescribing  a  land  tax 
in  any  rate  "  not  exceeding  four  dollars  to 
the  quarter  section,"  denotes  that,  160  acres 
being  taken  as  the  unit  of  quantity,  what- 
ever may  be  the  ratio  between  that  and  the 
tax,  the  same  relative  proportion  must  be 
observed  as  to  any  other  given  quantity  of 
land,  more  or  less,  that  falls  within  the  ap- 
portionment. Burlington  &•  M.  R.  R.  Co. 
v.  Lancaster  County,  4  Neb.  293.— Quoted 
IN  State  ex  rel.  v.  Dodge  County  Com'rs,  8 
Neb.  124. 

It  is  the  duty  of  the  proper  officers  of  a 
company,  whose  road  is  situated  in  more 
than  one  county,  to  list  under  oath,  for  as- 
sessment and  taxation,  the  roadbed,  super- 
structure, right  of  way,  rolling  stock,  side 
tracks,  telegraph  lines,  furniture  and  fix- 
tures, and  personal  property  belonging  to 
such  corporation,  and  to  transmit  the  same 
to  the  state  auditor,  on  or  before  the  first  day 
of  March  in  each  year.  Burlington  &»  M.  R. 
R.  Co.  V.  Lancaster  County  Com'rs,  7  Neb.  33. 

All  other  property  of  a  company  is  to  be 
assessed  by  the  assessor  of  the  city,  ward, 
or  precinct  in  which  it  is  situated,  in  ihe 
^ame  manner  as  is  provided  for  the  assess- 
ment of  real  estate,  but  land  used  for  nec- 
essary side  tracks  is  not  subject  to  such 
assessment.  Burlington  6*  M.  R.  R.  Co.  v. 
Lancaster  County  Com'rs,  7  Neb,  33. 


■II 
! 


TAXATION,  271. 


961 


yrthtrn  Pac.  R. 
ng.  R.  Cat.  364, 
134. 

be  valid,  must 
i  with  the  rev- 
under  which 
must  be  listed 
enable  county 
ds  of  equaliza- 
is  required  to 
ider  oath  from 
authorized  to 
Pac.  R.  Co.  V. 
as.  364, 5  Mont. 

unty  board  of 
power  to  meet 
tzation  at  any 
by  law,  and  it 
ised  valuation 
n  whose  inter- 
ty  &*  P.  R.  Co. 
30.— Quoted 
BufTalo  County 

action  with  the 
bing  a  land  tax 
four  dollars  to 
that,  160  acres 
luantity,  what- 
n  that  and  the 
rtion  must  be 
en  quantity  of 
within  the  ap- 
M.  R.  R.  Co. 
293-— Quoted 
unty  Com'rs,  8 

r  officers  of  a 
lated  in  more 
r  oath,  for  as- 
oadbed,  super- 
ng  stock,  side 
iture  and  fix- 
'  belonging  to 
ismit  the  same 
)re  the  first  day 
ttgtoH&tM.R. 
vt'rs,  7  Ntb.  33. 
npany  is  to  be 
he  city,  ward, 
tuated,  in  the 
for  the  assess- 
used  for  nee- 
ibject  to  such 
M.  R.  R,  Co.  V. 


In  the  year  1875  the  commissioners  of  a 
county,  of  tH«'r  own  motion,  and  under  the 
supposed  authority  conferred  by  the  amend- 
atory act  of  Feb.  25,  1875,  levied  the 
district  school-bond  tax  complained  of. 
Htld,  that  under  the  law  as  it  then  stood, 
such  taxes  could  be  legally  levied  only  in 
pursuance  of  direction  from  the  district  as 
to  the  amount  required.  Burlington  &*  M. 
R.  R.  Co.  V.  Saunders  County  Com'rs,  9  Neb. 
507,  4  N.  IV.  Rep.  240. 

Accidental  omissions  of  property,  in 
making  assessments  for  taxation,  do  not 
invalidate  the  tax  upon  other  property. 
Burlington  &*  M.  R.  R.  Co.  v.  Seward  County 
Com'rs,  10  Neb.  211,  4  A'^.  IV.  Rep.  1016. — 
Reviewed  in  Burlington  &  M.  R.  R.  Co. 
V.  Saline  Coun;y  Com'rs,  7  Am.  &  Eng.  R. 
Cas.  347,  12  Neb.  396. 

In  i87v  school  taxes  for  all  purposes  were 
restricted  to  a  sum  not  exceeding  twenty- 
five  mills  on  the  dollar  valuation.  Union 
Pac.  R.  Co.  V.  Dawson  County,  1 2  Neb.  254, 
II  N.  W.  Rep.  307.— Following  Burling- 
ton &  M.  R.  R.  Co.  V.  York  County  Com'rs, 
7  Neb.  487- 

Where  in  a  levy  of  taxes  for  county  rev- 
enue the  several  estimated  objects  of 
expenditure,  and  the  rate  for  each,  are  set 
out  in  detail,  instead  of  being  grouped 
together  under  the  single  head  of  "  "- neral 
fund,"  as  the  statute  contemplates,  it  is  at 
most  but  a  mere  informality,  in  no  way 
invalidating  the  tax.  so  long  as  the  objects 
specified  are  those  for  which  the  commis- 
sioners are  authorized  to  draw  upon  the 
general  fund.  Burlington  &-  M.  R.  R.  Co. 
V.  Lancaster  County  Com'rs,  12  Neb.  324,  11 
N.  IV.  Rep.  332. 

A  certificate  from  the  county  superintend- 
ent of  schools  to  the  county  clerk,  of  an 
amount  found  by  him  to  be  due  as  between 
school  districts,  upon  a  division  thereof,  is 
sufficient  to  authorize  the  levy  of  a  tax  upon 
the  property  of  the  district  or  districts  from 
which  the  amount  is  found  to  be  due.  Bur- 
lington &^  M.  R.  R.  Co.  V.  Lancaster  County 
Com'rs,  12  Neb.  324,  11  A'^.  W.  Rep.  332. 

The  failure  of  assessors  to  return  their 
assessment  rolls  to  the  county  within  the 
time  required  by  the  statute  is  a  mere 
irregularity,  and  does  not  invalidate  the  tax. 
Burlington  &*  M.  R.  R.  Co.  v.  Saline  County 
Com'rs,  7  Am.  6*  Eng  R.  Cas.  347,  12  Neb. 
396,  II  N.  W.  Rep.  854. 

Under  Comp.  St  ch.  77,  %  39,  it  is  the 
duty  of  the  state  auditor,  m  case  any  com- 
7  D.  R  D.— 6i 


pany  whose  property  is  situated  in  more 
than  one  county  fails  to  list  its  property  for 
taxation,  as  therein  provided,  by  the  3d  of 
March  of  each  year,  to  proceed  to  obtain  the 
facts  and  information  necessary  to  such 
taxation,  in  any  manner  that  may  appear 
most  likely  to  secure  the  same  correctly. 
Held,  that  it  will  be  presumed,  in  the 
absence  of  proof,  that  the  property  of  such 
company  lawfully  taxable  by  the  state  board 
was  for  the  year  or  years  in  question  prop- 
erly taxed.  Burlington  &>  M.  R.  R.  Co.  v. 
Lancaster  County  Com'rs,  15  Neb.  251,  18  A'". 
W.  Rep.  71.— Followed  in  Red  Willow 
County  V.  Chicago,  B.  &  Q.  R.  Co.,  39  Am. 
&  Eng.  R.  Cas.  556,  26  Neb.  660. 

The  property  of  a  company  which  should 
properly  be  assessed  by  the  state  board  is 
not  rendered  assessable  by  the  precinct 
assessor,  nor  taxable  by  the  county  board, 
by  reason  of  the  failure  of  the  officers  of 
the  railroad  company  to  list  the  same  to 
the  state  auditor,  or  of  the  state  board  to 
assess  the  same.  Burlington  6-  M.  R.  R. 
Co.  V.  Lancaster  County  Com'rs,  15  Neb.  251, 
18  A^.  W.  Rep.  71. 

Neb.  Comp.  St.  ch.  77,  §  39,  requires  rail- 
road officers  within  the  state  to  return  to 
the  auditor  of  public  accounts,  for  assess, 
ment  and  taxation,  the  number  of  miles  of 
railroad  in  each  organized  county,  and  the 
total  number  of  miles  in  the  state,  including 
roadbed,  etc. ;  but  does  not  require  a  return 
of  bridges  across  the  Missouri  river.  There- 
fore the  state  board  of  equalization  has  no 
power  to  include  such  bridges  within  the 
line  of  a  railroad  for  taxation,  and  can  levy  no 
tax  thereon.  The  portion  of  such  a  bridge 
within  a  cou.nty  is  to  be  assessed  and  taxed 
by  the  local  officers  of  the  county.  Cass 
County  V.  Chicago,  B.  &*  Q.  R.  Co.,  25  Neb. 
348.  2  L.  R.  A.  188,  41  A^.  W.  Rep.  246.— 
Reviewing  Anderson  v.  Chicago,  B.  &  Q. 
R.  Co.,  117  III.  26,  7  N.  E.  Rep.  129.— Fol- 
lowed IN  Chicago,  B.  &  Q.  R.  Co.  v. 
School  Dist.  No.  i,  25  Neb.  359. 

Where  real  estate  is  in  fact  used  for  road- 
bed and  right  of  way  purposes  at  a  railway 
station,  and  it  is  apparent  that  no  more  has 
been  taken  than  seems  necessary  for  the 
business  and  necessities  of  the  corporation 
at  present  or  in  the  near  future,  such  land, 
under  the  statute,  is  to  be  assessed  by  the 
state  board,  although  all  of  such  real  estate 
may  not  be  covered  with  railway  tracks. 
Red  Wtllow  County  v.  Chicago,  B.  Sf  Q.  R. 
Co.,  39  Am.  &*  Effg.  R,  Cas.  $56,  26  Nti, 


M8 


TAXATION,  273. 


il  ' 


6.;.  .•;  s.. 


•J-. I 


660,  43  JV.  W.  J?<^.  879.— Following  Bur- 
lington &  M.  R.  R.  Co.  V.  Lancaster  County 
Com'rs,  7  Neb.  33 ;  Burlington  &  M.  R.  R. 
Co.  V.  Lancaster  County  Com'rs,  15  Neb.  251. 

A  roundhouse  was  assessed  by  the  local 
assessor  at  $10,000,  and  the  company 
claimed  that  it  had  listed  the  same  with  the 
state  board,  which  had  levied  taxes  thereon 
that  it  had  paid,  but  the  proof  failed  to 
show  whether,  or  to  what  extent,  the  round- 
house was  also  used  as  a  repair  shop.  He/d, 
that,  unless  it  was  also  used  as  a  repair 
shop,  so  as  to  make  it  such  shop  as  well  as  a 
roundhouse,  the  assessment  should  have 
been  made  by  the  state  board,  and  not  by 
the  local  assessor.  Bed  Wtllov  County  v. 
Chicago,  B.  &»  Q.  R.  Co.,  39  Am.  &>  Eng. 
R.  Cas.  556,  26  Ntb.  660,  42  N.  W.  Rep.  879. 

All  real  estate  and  personal  property  of 
a  company,  outside  of  right  of  way  and 
depot  grounds,  are  to  be  listed  by  one  of 
the  principal  officers  or  agents  o(  such  cor- 
poration, and  assessed  by  the  assessor  of 
the  precinct  where  the  property  is  situated. 
Red  Willow  County  v.  Chicago,  B.  <S-  Q.  R. 
Co.,  39  Am.  &•  Eng.  R.  Cas.  556,  26  Neb. 
<6o,  42  A^.  W.  Rep.  879. 

An  unimproved  right  of  way,  grading, 
culverts,  etc.,  running  through  two  or  more 
counties,  owned  by  the  company  for  years 
but  with  no  superstructure  thereon,  is  sub- 
ject to  assessment  by  the  local  assessors, 
end  a  petition  to  enjoin  taz^s  so  levied  will 
be  dismissed  for  want  of  equity.  Republi- 
can Valley  &*  W.  R.  Co.  v.  Chase  County,  48 
Am.  &*  Eng.  R.  Cas.  641,  33  Aeb.  759,  51  N. 
W.  Rep.  132. 

Under  Rev.  St.  ch.  46,  §  50,  a  county 
clerk  has  authority,  where  lands  in  his 
county  have  not  been  assessed,  to  "enter 
the  same  upon  the  assessment  roll,  and 
assess  the  value."  Elkhorn  L.  <S~»  T.  L.  Co. 
V.  Dixon  County,  35  Neb.  426,  53  A^.  W. 
Rep.  382. 

272.  Nevada.— Under  the  Revenue  Act 
of  1866  (St.  1866,  1868,  §  IS)  the  board  of 
equalization  has  no  power  to  reduce  an 
assessment  when  the  company  complaining 
has  refused  to  give  to  the  assessor  a  state- 
ment under  oath  of  its  property.  State  v. 
Washoe  County  Com'rs,  5  Nev.  317. 

But  under  the  Revenue  Act  of  1869  (St. 
1869,  184),  the  sworn  statement  as  to  the 
property  of  railroads,  to  be  given  to  the 
assessor  for  assessment  purposes,  must  show 
affirmatively  that  the  person  making  it  is 
one  of  the  persons  named  in  the  statute  aAd 


it  must  be  subscribed  by  him.  Stat$  v. 
Washoe  County  Com'rs,  5  Nev.  317. 

The  punishment  prescribed  for  failure  of 
a  company  to  make  a  sworn  statement,  as 
required  by  the  Revenue  Act  of  1869,  §  3, 
is  in  addition  to  the  penalty  of  exclusion 
from  the  benefits  of  equalization.  Statt  v. 
Washoe  County  Com'rs,  5  Nev.  317. 

A  revenue  act  provided  that  a  sworn 
statement  of  the  property  of  a  railroad 
should  be  furnished  on  demand  of  the 
assessor,  otherwise  it  should  be  deprived  of 
the  benefits  of  equalization;  and,  no  proper 
■tatement  being  made,  it  was  claimed  by 
the  company  that  it  did  not  appear  that 
there  had  been  any  demand.  Held,  that  the 
burden  of  proof  was  upon  the  company 
desiring  equalization  to  show  the  fact  of 
neglect  to  make  the  demand.  State  v. 
Washoe  County  Com'rs,  5  Nev.  317. 

The  Supplementary  Revenue  Act  (St.  1867, 
III)  provided  that  in  cases  where  the  county 
assessor  neglected  to  make  an  assessment, 
the  county  treasurer,  as  ex  officio  tax 
receiver,  should  specially  assess  and  collect 
the  taxes;  and  that  if  any  person  felt 
aggrieved  by  such  subsequent  assessment 
he  might  apply  to  have  it  equalized  by 
the  county  commissioners,  and  that  they 
should  determine  the  matter.  Held,  that 
the  county  commissioners  while  sitting 
to  equalize  such  assessment  were  not  con- 
trolled by  the  restrictions  imposed  upon 
the  board  of  equalization  sitting  under  the 
General  Revenue  Act ;  and  that  they  could 
not,  like  the  board  of  equalization,  refuse  to 
equalize  an  assessment  upon  a  railroad 
because  a  sworn  statement  had  been  refused 
on  demand  of  the  treasurer.  Virginia  &* 
T.  R.  Co,  V.  Ormsby  County  Com'rs,  5  Nev. 
341.— Followed  in  State  ex  rel.  v.  Ormsby 
County  Com'rs,  7  Nev.  392. 

Under  the  provisions  of  the  above  sup- 
plemental act  a  company  applied  to  the 
commissioners  of  a  county  to  have  the 
"subsequent assessment  roll  "  for  1869,  as  to 
its  property,  equalized;  and  the  commis- 
sioners thereupon  ordered  the  entire  subse- 
quent assessment  roll  to  be  stricken  out 
and  rem  itted.  Held,  that  they  acted  beyond 
their  powers,  and  that  their  order  was  void. 
State  ex  rel.  v.  Ormsby  County  Com'rs,  6 
Nev.  95.— Followed  in  State  v.  Ormsby 
County  Com'rs,  7  Nev.  392. 

On  application  of  a  company  to  equalize 
as  to  its  own  property  the  subsequent  as- 
sessment roll,  as  provided  in  the  above  act. 


TAXATION,  272. 


968 


I.     Statt  V. 
17- 

for  failure  of 
tatement,  as 
of  1869.  §  3, 
of  exclusion 
n.  Statt  V. 
3'7. 

at   a  sworn 

>f  a  railroad 

and    of    the 

deprived  of 

d,  no  proper 

claimed  by 

appear  that 

^eld,  that  the 

lie  company 

the  fact  of 

d.    State  V. 

3'7. 

Act  (St.  1867, 
e  the  county 
assessment, 
officio  tax 
i  and  collect 
person  felt 
t  assessment 
Equalized  by 
id  that  they 
Held,  that 
rhile  sitting 
ere  not  con- 
posed  upon 
ig  under  the 
t  they  could 
on,  refuse  to 
I  a  railroad 
been  refused 
Virginia  4* 
m'rs,  5  Nev. 
(1.  V.  Ormsby 

above  sup- 
•lied  to  the 
o  have  the 
»r  1869,  as  to 
he  commis- 
intire  subse- 
tricken  out 
cted  beyond 
er  was  void. 
'y  Com'rs,  6 

V.  Ormsby 

to  equalize 
sequent  as- 
;  above  act, 


the  commissioners  ordered  the  entire  sub- 
sequent assessment  roll  to  be  stricken  out, 
and  their  proceedings  were  carried  by  cer- 
tiorari to  the  supreme  court,  Held,  that 
the  question  before  the  supreme  court  was 
solely  as  to  whether  the  commissioners  had 
the  authority  to  make  the  order  striking  out 
the  entire  roll,  and  that  the  court  could  not 
consider  the  question  as  to  the  authority  to 
equalize  or  discharge  the  assessment  of  the 
particular  company  making  the  application. 
State  ex  rel.  v.  Ormsby  County  Com'rs,  6 
Nev.  95. 

A  company  failed  to  furnish  a  proper 
statement  of  its  taxable  property  within  the 
time  prescribed  by  law,  and  in  default  thereof 
the  assessor  placed  a  valuation  thereon 
which  the  board  of  equalization  afterwards 
reduced.  Held,  that  the  action  of  the  board 
was  unauthorized  and  should  be  annulled. 
State  ex  rel.  v.  Board  of  Equalization,  7 
Nev.  83. 

On  certiorari  to  review  the  proceedings 
of  the  board  of  equalization  in  reference  to 
the  reduction  of  an  assessment  against  a 
company,  the  clerk  of  the  board  was  directed 
to  certify  whether  it  appeared  before  the 
board  that  the  company  served  a  statement 
of  its  taxable  property  within  the  time  pre- 
scribed by  law ;  and  the  clerk  returned  a 
certificate  that  it  was  proven  before  the 
board  that  such  a  statement  had  been  fur- 
nished within  time,  but  went  on  to  show 
that  his  certificate  was  based  upon  the  sworn 
statement  of  others,  who  composed  the 
board  at  the  time,  and  not  upon  his  own 
recollection  or  the  records  of  the  board. 
Held,  that  such  certificate  was  quite  inad- 
missible; and  on  motion  it  was  stricken 
out.  State  ex  rel.  v.  Board  of  Equalization, 
7  Nev.  83.— Reviewing  New  Jersey  R.  & 
T.  Co.  V.  Suydam,  17  N.  J.  L.  25. 

The  "legal  excuse"  mentioned  in  the 
Act  of  1869,  §  3.  requiring  railroads  to  fur- 
nish statements  of  their  taxable  property,  is 
only  to  be  considered  in  case  of  a  criminal 
prosecution  as  provided  for  by  the  Act  of 
1866,  §  6  (St.  1866,  168),  and  not  in  proceed- 
ings before  the  board  of  equalization  (St. 
1866,  169,  §  15).  State  ex  rel.  v.  Board  of 
Equaliwation,  7  Nev.  83. 

The  fact  that  a  company  fails  to  make  a 
■tatement  as  required  by  law  does  not  au- 
thorize the  assessor  to  impose  a  valuation 
which  he  knows  to  be  exorbitant  and 
unjust.  State  v.  Central  Pac.  R.  Co.,  7 
Ntv.93. 


As  the  law  requires  an  honest  and  just 
estimate  of  value  to  be  placed  upon  property 
for  the  purpose  of  taxation,  an  excessive 
valuation  made  by  an  assessor  contrary  to 
his  official  judgment,  and  with  intent  to 
injure,  is  a  fraud  against  which  the  law  will 
afford  relief.  State  v.  Central  Pac.  R.  Co.' 
7  Nev.  99. 

An  application  was  made  to  the  commis- 
sioners  to  equalize  a  supplemental  assess- 
ment against  a  company,  which  was  denied ; 
and  afterwards  an  application  was  made  to 
discharge  the  same  assessment.  Held,  that 
the  board  had  not  exhausted  its  pcwer  in 
reference  to  the  assessment  by  its  action  on 
the  application  to  equalize.  The  discharge 
of  a  supplemental  assessment  is  entirely 
different  from  an  equalization  of  the  same. 
State  v.  Ormsby  County  Com'rs,  7  Nev.  392. 

Under  the  statute  of  1867  action  may  be 
taken  by  the  commissioners  to  modify, 
equalize,  or  discharge  assessments  against  a 
railroad  irrespective  of  the  particular  char-> 
acter  of  the  session  of  the  board ;  nor  is 
there  any  limitation  imposed  by  the  statute 
as  to  the  time  of  application.  State  v. 
Ormsby  County  Com'rs,  7  Nev.  392. 

The  cash  value  of  a  railroad  is  measured 
by  the  amount  of  cash  required  to  procure 
it,  provided  its  utility  is  commensurate  with 
its  cost ;  and  the  amount  of  cash  required 
to  procure  a  railroad  is  the  necessary  cost 
of  its  construction.  State  v.  Central  Pac. 
R.  Co.,  10  Nev.  47.— Quoting  Sangamon  ft 
M.  R.  Co.  V,  Morgan  County,  14  III.  163. 
Reviewing  Albany  &  S.  R.  Co.  v.  Osborn. 
12  Barb.  (N.  Y.)  225;  Albany  &  W.  S.  R. 
Co.  V.  Canaan,  16  Barb.  244. 

Where  property  is  visible  and  open  to 
inspection,  the  assessor  should  exercise  his 
own  judgment  in  the  valuation,  and  not  be 
governed  by  the  opinion  of  the  taxpayer. 
State  V.  Central  Pac.  R.  Co.,  10  Nev.  47. 

The  omission  of  the  assessor  to  state  the 
number  of  acres  of  land  assessed  to  a  rail- 
road company  where  the  number  of  miles  ol 
the  road  is  stated,  and  it  is  not  shown  that 
the  railroad  company  was  injured  by  the 
failure  to  state  the  number  of  acres,  does 
not  make  the  assessment  void.  Statt  v. 
Central  Pac.  R.  Co.,  10  Nev.  47. 

The  statute  does  not  require  a  separata 
assessment  or  valuation  of  lands  and  im- 
provements  where  both  belong  to  the  same 
owner;  nor  does  it  require  the  value  pet 
acre  to  be  given.  And  where  the  land  is 
described  by  its  common  designation  ot 


964 


TAXATION,  273,  274. 


SiK'"*  — ' 


i '11  f '?;■,:'; 


name,  it  is  not  necessary  to  give  the  metes 
and  bounds  also.  State  v.  Central  Pac.  R. 
Co.,  lo  Nev.  47. 

The  affidavit  to  a  statement  filed  wiih 
the  board  of  equalization  was  made  in  Cali- 
fornia, using  the  words  "  this  state  "  in  such 
a  manner  that  if  strictly  considered  they 
would  relate  to  the  state  of  California. 
Held,  upon  a  statement  of  the  facts,  that 
the  intention  to  verify  the  contents  of  the 
statement  relating  to  property  in  the  state 
of  Nevada  was  so  clear  as  to  entitle  them  to 
be  received  as  a  proper  statement  of  the 
company's  property  in  Lander  County,  Ne- 
vada. State  V.  Central  Pac.  R.  Co.,  17  Nev, 
259.  30  Pac.  Rep.  887. 

The  statement  of  a  company's  property 
filed  with  the  board  of  equalization  need 
not  contain  an  itemized  list  of  the  various 
articles  of  personal  property,  and,  where  the 
company  is  not  seeking  a  reduction  upon 
the  valuation  of  property  of  a  general  na- 
ture, it  will  be  sufficient  if  it  contains  a  list 
of  property  of  the  company,  real  and  per- 
sonal, pertaining  to  its  road.  State  v.  Cen- 
tral Pac.  R.  Co.,  17  Nev.  2S9,3oPac.  Rep.887. 

If  a  written  statement  is  not  furnished  by 
the  company  to  the  assessor  of  all  the  com- 
pany's property  within  the  county,  as  re- 
quired by  law  (St.  1875,  105),  the  board  of 
equalization  has  no  power  to  reduce  the 
assessment  made  by  the  county  assessor. 
State  v.  Central  Pac.  R.  Co.,  17  Nev.  259,  30 
Pac.  Rep.  887. 

The  board  of  county  commissioners  has 
the  right  to  amend  the  record  of  its  pro- 
ceedings, when  sitting  as  a  board  of  equal- 
ization, so  as  to  make  it  conform  to  the 
truth,  and  an  amendment  made  by  order  of 
the  board  after  it  had  ceased  to  sit  as  a 
board  is  admissible  in  evidence  to  show  the 
facts  upon  which  the  board  acted  in  reduc- 
ing the  assessment  upon  defendant's  prop- 
erty. State  V.  Central,  Pac.  R.  Co.,  17  Nev. 
259,  30  Pac.  Rep.  887. 

When  a  company  claims  that  its  taxes,  as 
assessed  by  the  county  assessor,  have  been 
reduced,  it  must  affirmatively  show  by  the 
record  of  the  board  the  jurisdictional  fact 
that  a  complaint  was  made  by  it  to  the  judi- 
cial board  of  equalization  of  the  assessor's 
valuation  of  the  property,  the  oral  testimony 
of  the  members  of  the  board  being  insuffi- 
cient. State  v.  Centra/ Pac.  R.  Co.,  17  Nev. 
259.  30  Pac.  Rep.  887. 

Under  the  statute  assessors  are  re- 
quired to  estimate  the  value  of  railroads 


with  reference  to  their  position,  connections, 
and  use,  and  "  as  an  integral  part  of  a  com- 
plete, continuous,  and  operated  line  of  rail- 
road, and  not  as  so  much  land  covered  by 
the  right  of  way  merely,  nor  as  so  many 
miles  of  track  consisting  of  iron  rails,  ties, 
and  couplings."  State  v.  Central  Pac.  R, 
Co.,  21  Nev.  75,  25  Pac.  Rep.  296. 

273.  New  Hampshire.— Under  N.  H. 
Gen.  Laws,  ch.62,  the  tax  of  a  railroad  there 
authorized  is  not  a  town  tax,  and  is  not 
assessable  in  proportion  to  the  taxation  of 
otiier  property  in  the  towns  in  which  the 
railroad  is  located.  Boston,  C.  &*M.  R.  Co. 
v.  State,  60  A^.  H.  87. 

In  the  assessment  of  a  railroad  "as  near 
as  may  be  in  proportion  to  the  taxation  of 
other  property  "  in  towns,  the  rate  at  which 
savings  banks  are  taxed  by  the  state  is  not 
considered.  Boston,  C.  &*  M.  R.  Co.  v. 
State,  62  N.  H.  648. 

When  a  railroad  tax  is  reduced  on  appeal, 
the  amount  abated  is  allowed  on  a  subse- 
quent tax.  Boston,  C.  &*  M.  R.  Co.  v.  State 
64  N.  H.  490,  13  At  I.  Rep.  874. 

274.  New  Jersey. — (i)  In  general. — 
The  Act  of  February  6, 1866,  §  9,  consolidat- 
ing two  companies,  provides  that  "  when- 
ever the  net  earnings  of  said  consolidated 
company  shall  amount  to  six  per  cent,  per 
annum  over  expenses  and  interest,  the  said 
company  shall  pay  to  the  treasurer  a  tax  of 
one  half  of  one  per  cent,  upon  the  cost  of 
said  road,  to  be  paid  annually,  and  such 
other  state  tax  as  may  be  assessed  from 
time  to  time,  by  a  general  law,  applicable  to 
all  railroads  over  which  the  legislature  shall 
have  power,  for  that  purpose,  at  the  time  of 
the  passage  of  such  law  or  laws."  The 
company  was  taxed  upon  its  capital  stock, 
amounting  to  $220,604,  &nd  upon  its  real 
estate,  valued  at  $7000,  there  having  been 
no  such  general  law  passed  as  contemplated 
in  said  section.  Held,  that  the  assessment 
was  illegal.  Cook  v.  State  (Camden  &*  B. 
County  R.  Co.,  Pros.),  33  N.  /.  L.  474.— 
Quoting  New  York  &  E.  R.  Co.  v.  Sabin. 
26  Pa.  St.  242.— Followed  in  State  (New 
Jersey  R.  &  T.  Co.,  Pros.)  v.  Hancock,  35 
N.  J.  L.  537. 

A  tax  being  affirmed  by  the  commis- 
sioners of  appeal  was  carried,  on  certiorari, 
into  the  supreme  court  and  the  court  of 
errors,  in  both  of  which  courts  the  proceed- 
ings were  sustained.  Before  the  argument 
in  the  supreme  court,  the  statute  authoriz* 
ing  the  tax  was  repealed.    Held,  on  a  man- 


II 


.connections, 
art  of  a  com« 
d  line  of  rail- 
d  covered  by 
as  so  many 
on  raiis,  ties, 
itral  Pac.  R. 
?6. 

■Under  N.H. 
'ailroad  there 
[,  and  is  not 
e  taxation  of 
n  which  the 
&*  M.  R,  Co. 

jad  "as  near 
taxation  of 

-ate  at  which 
state  is  not 
.   R.  Co.  V. 

;d  on  appeal, 
on  a  subse* 
Co.  V.  Statt 

«  general. — 
,  consolidat- 
hat " when- 
onsolidated 
aer  cent,  per 
est,  the  said 
irer  a  tax  of 
the  cost  of 
f,  and  such 
sessed  from 
pplicable  to 
slature  shall 
the  time  of 
aws."    The 
ipital  stock, 
>on  its  real 
laving  been 
mtempiated 
assessment 
nden  6»  B. 
'.  L.  474.— 
0.  V.  Sabin. 
State  (New 
lancock,  35 

e  comniis- 
I  certiorari, 
e  court  of 
le  proceed- 
'  argument 
e  authoris* 
on  a  man- 


TAXATION,  274. 


965 


damui  directing  the  payment  of  such  tax, 
that  the  question  of  the  legality  thereof  aris- 
ing from  the  repeal  of  such  statute  could 
not  be  raised,  on  the  ground  that  the  judg- 
ments on  certiorari  had  conclusively  settled 
that  question.  Belvidere  v.  Warren  R.  Co., 
i^N.J.L.  193. 

In  assessing  depot  grounds  of  a  company 
having  an  exemption  from  taxation  in  its 
charter  for  benefits  derived  from  local  im- 
provements,  supposed  benefits  arising  horn 
the  probable  increase  of  business  in  conse- 
quence of  increased  facilities  of  access  to 
its  depot  cannot  be  made  the  basis  of  as- 
sessment. An  assessment  on  that  principle 
would  be  a  tax  on  the  business  of  the  com- 
pany in  violation  of  the  exemption  in  the 
act  of  incorporation.  State  {Morris  &*  E. 
R.  Co.,  Pros.)  v.  Jersey  City,  36  N.  J.  L.  56, 
12  Am.  Ry.  Rep.  302. — Followed  in  State 
(New  Jersey  R.  &  T.  Co.,  Pros.)  v.  Eliza- 
beth, 37  N.  J.  L.  330. 

Lands  acquired  for  a  public  use  by  a  cor- 
poration under  legislative  authority,  which 
are  essential  to  the  exercise  of  its  corporate 
franchises,  and  are  held  in  good  faith  for 
that  purpose,  must  be  regarded  for  purposes 
of  taxation  as  devoted  to  that  public  use. 
In  assessing  lands  so  circumstanced  for  local 
improvements,  the  increase  in  their  present 
market  value  is  not  tlie  proper  basis  of  as- 
sessment ;  if  not  benefited  in  their  present 
use  by  such  improvement,  the  assessment 
should  be  made  on  a  valuation  deper'^ing 
on  the  probability  that  they  may  thereafter 
be  converted  to  other  uses.  State  (Morris 
&*  E.  R.  Co.,  Pros.)  V.  Jersey  City,  36  N.  J. 
L.  56,  12  Am.  Ry.  Rep.  302. 

A  corporation  having  an  irrepealable 
Ckiarter  which  provides  for  a  special  mode  of 
taxation,  and  that  "  no  other  or  further  tax 
or  imposition  shall  be  levied  or  imposed 
upon  the  said  company,"  may  consent  to 
other  taxation,  or  a  different  mode  of  assess- 
ment from  that  specified  in  its  charter,  by 
the  acceptance  of  subsequent  legislative 
acts,  without  impairing  the  exemption  from 
general  taxation  contained  in  its  charter. 
In  such  event,  the  new  taxation  becomes 
part  of  the  original  contract,  and  modifies 
its  terms  to  that  extent,  leaving  the  restric- 
tion therein  on  further  taxation  in  full  fore.:. 
State  (United R.  6-  C.  Co.,  Pros.)  v.  Com'rs 
of  R.  Taxation,  yj  N.  J.  L.  240. 

When  railroad  property  is  legally  subject 
to  assessment,  and  the  proceedings  of  the 
commissioners  are  regular,  the  report  is  cn.i- 


elusive,  in  the  absence  of  other  proof,  of  the 
fact  of  benefit  actually  received,  and  of  its 
amount  and  value.  State  (New  Jersey  Mid- 
land  R.  Co.,  Pros.)  v.  Mayor,  etc.,  of  Jersey 
City,  1  Am.  <S-  Etig.  R.  Cas.  406,  42  N.J. 
L.  97. 

Writs  of  certiorari  allowed  in  1880,  to 
bring  up  assessments  made  in  1873,  1874, 
and  1875,  dismissed  for  laches.  Statt 
(United  N.  J.  R.  6-  C.  Co.,  Pros.)  v. Binnin- 
ger,  I  Am.  &*  Eng,  R.  Cas.  410,  42  N.  J. 
L.  528. 

In  estimating  the  value  of  lands  lying 
upon  tidewater,  for  the  purpose  of  taxation, 
adjacency  to  the  tidewater  is  a  circum- 
stance  which  should  enter  into  their  taxable 
valuation,  and  in  so  far  as  the  market  value 
of  the  land  is  enhanced  by  reason  of  its 
frontage  on  the  water,  and  of  the  privileges 
arising  from  its  location,  it  should  be  esti- 
mated at  such  enhanced  valuation  for  the 
purposes  of  taxation.  State  (New  York,  L, 
E.  &•  W.  R.  Co.,  Pros)  v.  Yard.  1 1  Am.  <S- 
Eng.  R.  Cas.  529,43  N.J.  L.  632 ;  affirming 
43  N.J.  L.  121. 

Where  an  assessment  of  taxes  has  been 
made  in  good  faith  on  property  which,  by 
the  prosecutor's  charter,  is  exempt  from 
taxation,  costs  will  not  be  allowed  to  the 
prosecutor  on  setting  aside  the  taxes  on 
certiorari  where  application  for  relief  has 
not  been  made  to  the  local  authorities,  un- 
less the  defense  in  the  certiorari  suit  has 
been  conducted  vexatiously.  State  (Lehigh 
Valley  R.  Co.,  Pros.)  v.  Mayor,  etc.,  of 
Newark,  44  N.  J.  L.  323. 

Under  what  is  known  as  the  Riparian  Act 
of  March  31,  1869,  §§  3.  4,  the  Hoboken 
Land  and  Improvement  company  and  its 
assigns  may  secure  from  the  state  a  convey- 
ance in  fee  of  the  lands  under  water  lying 
in  front  of  the  lands  owned  by  such  cor- 
poration or  its  assigns,  on  paying  to  the 
state  fifty  dollars  per  foot  in  front  of  the 
lands  included  in  the  conveyance  ;  but  the 
privilege  of  securing  such  conveyance  must 
be  regarded  as  enhancing  the  value  of  the 
land,  to  the  ownership  of  which  the  privi- 
lege attaches,  for  the  purpose  of  taxation. 
New  York,  L.  E.  &-  W.  R.  Co.  v.  Hughes, 
ifiN.J.  L.67. 

(2)  The  Act  of  1873.  —  Under  the  Act  of 
April  2,  1873,  providing  for  "just  rules  for 
the  taxation  of  railroad  corporations,"  it  is 
required  that  the  president  of  every  such 
corporation  shall  return  to  the  state  comp- 
troller the  cost  of  the  road,  and  the  cost  of 


966 


TAXATION,  274. 


f    IHK,**"' 


'Mi '' ..jtiii 


»;*»'■■ 


equipment  and  appendages  of  the  road, 
specifying  the  items  and  locality  thereof. 
Ife/d,  that  no  valid  claim  for  a  tax  could  be 
made  by  the  state  until  such  return  was 
made.  Williamson  v.  New  Jersey  Southern 
E.  Co.,  28  N.J.  Eg.  277, 14  Am.  /fy.  Rep.  34 ; 
reversed  in  29  N.J.  Eg.  311. 

In  laying  a  tax  under  the  above  statute 
for  the  benefit  of  counties,  townships,  and 
cities,  the  commissioner  of  railroad  taxation 
performs  the  same  duties  as  a  township  as- 
sessor under  the  General  Tax  Law,  and  the 
proceedings  for  review  are  the  same  as  in 
cases  of  ordinary  taxes,  except  that  such 
taxes  are  not  subject  to  review  before  the 
local  commissioners  of  appeal  in  cases  of 
taxation.  The  writ  of  certiorari  to  review 
such  taxation  should  be  directed  to  the  col- 
lector of  taxes  for  the  township  or  city  in 
whose  hands  the  duplicate  of  taxes  is  placed 
for  collection,  and  the  proceedings  under 
the  writ,  with  respect  to  the  review  and  cor- 
rection of  the  assessment,  will  be  the  same 
as  in  ordinary  cases.  State  (New  York,  L. 
E.  &>  W.  R.  Co.,  Pros.)  v.  Yard,  11  Am.  &» 
Eng.  R.  Las.  529,  43  N.J.  L.  632  ;  affirming 
i\,lN.J.L.  121. 

(3)  The  Act  oj  1876.  —  A  road  was  sold 
under  a  mortgage,  and  the  purchasers,  in 
November,  1878,  organized  a  new  corpora- 
tion under  a  different  name.  Taxes  for 
1878-79,  laid  upon  the  road  and  its  equipment 
pursuant  to  the  Railroad  Taxation  Act  (N.  J. 
Rev.  1876,  p.  it68)  being  unpaid,  judgment 
was  entered  therefor  against  the  company. 
Held,  upon  application  for  judgment  to  issue 
thereon,  that,  though  the  tax  for  1879  should 
have  been  assessed  in  the  name  of  the  new 
corporation,  the  assessment  might  be 
amende!    '• '      i.he  Act  of  March  25,  1881 


aSSf'-'isniiFMU  Hhv:i!'    ■'  : 
feet     •  L.-tfinilari'.y  «r. 
the  persi  "  vx^.  '  "  ■ 
which  such  la.i.  r...    U 


..-viding  that  no  tax  or 
\  set  aside  for  any  de- 
iiAsessing  the  same,  if 
iOin  or  property  on 
7  ied  was  in  fact  liable. 


and  giving  to  the  court  power  to  amend  and 
correct  irregularities  in  the  form  or  manner 
of  assessment,  as  that  act  should  be  liberally 
construed  and  its  provisions  applied  to 
taxes  assessed  before  it  was  passed.  State 
V.  Montclair  &*  G.  L.  R.  Co.,  13  Am.  &* 
Eng.  R.  Cas.  390,  43  N.J.  L.  524. 

(4)  The  Act  oJ  1884. — It  is  proper,  under 
this  act,  to  appraise  the  land  and  improve- 
ments separately.  State  {New  York,  L.  E. 
6-  W.  R.  Co.,  Pros.)  v.  Yard,  43  A^.  /.  L. 
131  J  affirmed  in  43  N.J.  L.  632. 


The  prosecutor  owned  ten  acres  of  up- 
land, and  claimed  to  own  a  right  of  recla- 
mation over  more  than  twenty  acres  of  land 
under  water  in  the  Hudson  river,  fronting 
the  upland.  Held,  that  a  valuation  of  the 
whole  as  "  thirty  acres  of  land,"  at  so  much 
per  acre,  did  not  invalidate  a  tax  based  on 
such  appraisement  under  the  act,  and  that 
even  though  the  claim  of  a  right  of  recla- 
mation were  groundless,  the  tax  would  still 
be  sustained,  unless  it  were  shown  that  the 
value  of  the  ten  acres,  with  the  appurtenant 
riparian  rights,  was  less  than  the  appraise- 
ment. State  (New  York,  L.  E.  &•  W.  R.  Co., 
Pros.)  V.  Yard,  ^yN.J.L.  121 ;  affirmed  in 
43  N.J.  L.  632. 

Section  6  of  the  act  directs  that  whenever 
in  any  taxing  district  there  are  several 
branch  roads  belonging  to  or  controlled  by 
one  company,  the  state  board  shall  desig- 
nate one  of  such  lines  as  the  main  stem, 
and  the  others  shall  be  valued  as  prop- 
erty used  for  railroad  purposes,  thereby 
subjecting  such  respective  parts  of  the 
property  thus  separated  to  a  different  rate 
of  taxation.  Held,  that  although  such  dis- 
tribution of  property  with  a  view  to  variant 
taxation  was  to  be  justified  by  force  of  the 
decision  in  these  cases  by  the  court  of  errors, 
still  such  system  was  invalid  inasmuch  as  it 
left  it  to  the  unguided  judgment  of  the  state 
board  to  decide  which  of  such  branches 
should  be  subjected  to  the  higher  rate  of 
taxation.  Central  R.  Co.  v.  State  Board  of 
Assessors,  49  N.J.L.  1,7  Atl.  Rep.  306. 

Section  4  of  the  act  directs  that  in  case 
the  valuations  of  railroad  and  canal  property 
by  the  state  board  shall  be  relatively  higher 
than  the  value,  as  ascertained  by  the  local 
assessors,  of  the  property  of  other  persons 
in  any  taxing  district,  the  said  board  should 
accept  the  valuations  of  such  local  assessors 
as  a  correct  standard  of  value.  It  was 
shown  that  the  local  assessors  illegally  took 
but  a  percentage  of  what  they  deemed  the 
true  value  of  the  property  appraised  by 
them.  Held,  that  the  state  board  could  not 
take  such  reduced  valuations  as  its  standard 
of  value.  Central  R.  Co.  v.  State  Board  of 
Assessors,  49  N.J.L.  i,  7  Atl.  Rep.  306. 

The  Act  of  1884,  §  4,  provides  that  "  if  the 
assessed  value  of  the  real  estate  of  persons, 
other  than  railroad  or  canal  corporations 
*  *  f  is  relatively  lower  than  that  which  has 
been  laid  upon  the  land  of  the  several  com- 
panies in  said  taxing  district,  the  said  board 
[of  state  assessors]  shall  be  required  to  ac- 


TAXATION,  275. 


967 


acres  of  up- 
right of  recla- 
I  acres  of  land 
river,  fronting 
|uation  of  the 

'  at  so  much 

tax  based  on 
I  act,  and  that 
fight  of  recla- 
ax  would  still 
[lown  that  the 
!  appurtenant 
[the  appraise* 
!*•  Pf^./f.Ca., 

affirmed  in 

hat  whenever 
are  several 
controlled  by 
shall  desig. 
8  main  stem, 
led  as  prop- 
3ses,  thereby 
>arts   of  the 

different  rate 

ugh  such  dis- 

Bw  to  variant 

r  force  of  tiie 

>urt  of  errors, 

lasmuch  as  it 

It  of  the  state 

ich   branches 

igher  rate  of 

^ate  Board  of 

^ep.  306. 
that  in  case 

inal  property 

lively  higher 

by  tlie  local 

her  persons 

>oard  should 

cal  assessors 

e.      It  was 

legally  took 

[leemed  the 

tpraised   by 

d  could  not 

its  standard 

tt  Board  0/ 

tp.  306. 

hat "  if  the 

of  persons. 

>rporations 
which  has 

veral  com- 

said  board 

lired  to  ac- 


11 


cept  said  valuation  of  the  assessors  *■•■«■ 
as  a  correct  standard  of  value,  and  to  there- 
by  correct  or  reduce  the  separate  valuation 
provided  for  in  the  second  subdivision  of 
section  three  of  this  bill."  Held,  that  this 
section  is  unconstitutional.  The  true  value 
of  railroad  property  is  the  sole  basis  of  a 
constitutional  assessment.  Williams  v. 
Settle,  4a  Am.  &*  Etig.  R.  Cas.  271,  51  N.J. 
Z.  512,  18  At  I.  Rep.  750;  affirming  50  N.  J. 
L.  132,  n  Atl.  Rep.  17. 

Under  section  1 2  of  the  above  statute,  in 
determining  whether  the  tax  assessed  against 
a  company  is  greater  than  such  company 
would  pay  if  it  did  not  pay  the  state  tax  of 
one  half  of  one  per  cent.,  but  did  pay  full 
local  rates  on  all  its  property  and  franchises 
mentioned  in  section  3  of  the  act,  the  local 
rate  to  be  applied  is  "  the  local  rate  as  fixed 
and  assessed  for  county  and  municipal  pur- 
poses upon  other  property  in  each  taxing 
district,"  and  not  such  rate  as  would  have 
been  sufficient  to  raise  the  same  revenue, 
in  case  the  valuation  of  the  railroad  prop- 
erty had  been  added  to  the  valuation  of  the 
other  property  in  each  local  assessment. 
Williams  v.  Bettle,  42  Am.  &*  Eng.  R.  Cas. 
271,  51  A^,  /.  L.  512,  18  Atl.  Rep.  750;  af- 
firming 50  N.J.  L.  132,  II  Atl.  Rep.  17. 

The  authorized  right  of  way  of  a  railroad 
company,  duly  acquired,  over  which  the 
road  has  been  constructed  and  is  in  good 
faith  operated,  is  "  used  fc  railroad  pur- 
poses "  within  the  meaning  of  the  N.  J.  Act 
of  April  10,  1884,  which  provides  that  all 
property  of  any  railroad  company  "used 
for  railroad  purposes  "  shall  be  assessed  by 
a  state  board,  and  not  by  the  local  assessor 
— although  it  may  not,  for  the  time  being, 
be  wholly  occupied  by  tracks  or  other  rail- 
road appliances.  United  N.J.  R.  &*  C.  Co.  v. 
Mayor,  etc.,  of  Jersey  City,  54  Am.  &*  Eng. 
R.  Cas.  rji,  55  N.J.  L.  129,  26  Atl.  Rep.  135. 

(5)  The  state  board  of  assessors,  — To  make 
a  just  valuation  thereof,  property  used  for 
railroad  or  canal  purposes  must  be  esti- 
mated with  regard  to  its  value  for  such 
purposes.  State  Board  of  Assessors  v.  Crw- 
tral  R.  Co.,  24  Am.  &*  Eng.  R.  Cas.  546, 48 
N.  J.  L.  146,  4  Atl.  Rep.  578 ;  reversing  48 
N.J.L.i,2  Atl.  Rep.  789. 

Railroad  and  canal  property  is  a  peculiar 
class  of  property  and  the  method  of  valuing 
it  must  be  peculiar,  and  providing  a  state 
board  of  assessors  for  that  purpose  is  appro- 
priate and  necessary.  State  Board  of  Assess- 
ors v.  Central  R.  Co.,  24  Am.  S-  Eng.  R. 


Cas.  546.  48  N.  J.  L.  146,  4  Atl  Rtp.  $78 : 
reverting  48  N.J.L.l,2  Atl.  Rep.  789. 

Under  the  act  constituting  a  state  board 
of  assessors  to  value  the  property  of  rail- 
roads and  canals,  the  case  to  be  reviewed 
on  certiorari  by  the  supreme  court  should  be 
made  by  the  proofs  and  exceptions  on  the 
appeal  before  such  board,  and  not  on  a  rule 
to  take  testimony  granted  by  the  supreme 
court.  Central  R.  Co.  v.  State  Board  of 
Assessors,  49  N.J.L.i.f  Atl.  Rep.  306. 

In  estimating  the  value  of  railroad  prop- 
erty for  taxation,  the  cost  of  the  acquisition 
of  such  property  is  not  an  absolute  criterion 
of  such  value,  but  is  an  important  element 
in  the  circumstances  on  which  a  judgment 
on  the  subject  is  to  be  formed.  Central  R. 
Co.  v.  State  Board  of  Assessors,  49  N.J.  L.  i, 
7  Atl.  Rep.  306.— Followed  in  State  (Will- 
iams, Pros.)  V.  Bettle,  42  Am.  &  Eng.  R. 
Cas.  271,  50  N.  J.  L.  132. 

A  railroad  taxation  act  directed  the  valu- 
ation of  the  property  of  companies  to  be 
made  in  a  distributive  mode ;  that  is.  first, 
on  the  main  stem ;  second,  the  other  real 
estate  used  for  railroad  purposes  ;  third,  the 
tangible  personal  property;  fourth,  the 
franchises.  Held,  that  such  system  of  valua- 
tions is  constitutional  and  unobjectionable, 
and  that  the  valuation  of  such  property,  in- 
cluding the  franchises,  is  legal,  and  where 
there  is  no  clear  evidence  showing  the 
same  to  be  exorbitant,  they  cannot  be  mod- 
ified. Central  R.  Co.  v.  State  Board  of 
Assessors,  49  N.J.  L.  i,  7  Atl.  Rep.  306.— 
Quoting  State  Board  of  Assessors  v.  Cen- 
tral R.  Co.,  48  N.  J.  L.  278. 

The  state  board  of  assessors,  in  the  valu- 
ation of  property,  must  give  its  true  value, 
and  not  be  governed  by  the  valuation  of 
the  local  assessors.  State  ( Williams,  Pros.) 
v.  Bettle,  soN.  J.  L.  132,  1 1  Atl.  Rtp.  17; 
affirmed  in  42  Am.  &*  Eng.  R.  Cas.  271,  $1 
N.J.L.%\2,\Z  Atl.  Rep.  750. 

Debts  cannot  be  deducted  from  the  valu- 
ation of  railroad  property  by  the  state  board 
of  assessors,  unless  applied  for  according  to 
the  Railroad  Taxation  Acts.  Williams  v. 
Bettle,  42  Am.  **  Eng.  R.  Cas.  rj\,i\  N.J. 
£.  SIS,  18  Atl.  Rep.  750;  affirming  loN.J. 
L.  132,  II  Atl.  Rep.  17. 

275.  New  Mexico. —The  assessment 
of  the  property  of  a  railroad  company,  real 
and  personal,  for  one  year  in  a  single  item 
as  (1,000,000,  and  in  other  years  in  two  items, 
real  and  personal  property,  each  at  $250,000, 
is  void.    A  list  in  detail  must  accompany 


968 


TAXATION,  276. 


.'  J  .     iP'       ...Of' 


|;''S2!» 


>w 


-i 

rf'l"  '  y.. 


ii 


I 


Ml 


;; 


!;■■ 

■11;! 

iiji.; 

:) 
il 

it 


I 


the  Maessment.  Valtncia  County  Com'rt  v. 
Atchison,  T.  &*  S.  F.  R.  Co.,  3  A^.  Mtx.  380, 
10  Pac.  Rtp.  294. 

276.  New  York.— (I)  Ingtneral.—lht 
provisions  of  i  Rev.  St.  414,  relating  to 
the  assessment  of  taxes  upon  incorporated 
companies,  furnish  a  sufficient  basis  for  the 
assessment  and  taxation  of  the  lands  of 
railroad  corporations  in  towns  and  counties 
remote  from  their  principal  place  of  busi- 
ness.  People  ex  rel.  v.  Barker,  48  A''.  Y.  70 ; 
affirming  33  How.  Pr.  150.  48  Barb.  173.— 
Followed  in  People  ex  rel.  v.  Keator,  36 
Hun  (N.  Y.)  592. 

The  tax  of  a  railroad,  authorized  by  Gen. 
Laws,  ch.  62,  is  not  a  town  tax,  and  is  not 
assessable  in  proportion  to  the  taxation  of 
other  property  in  the  towns  in  which  the 
railroad  is  located.  Boston,  C.  &*  M.  R. 
Co.  V.  State,  60  A^.  H.  87.— Followed  in  Mt. 
Washington. R.  Co.  v.  State,  60  N.  H.  583. 

In  assessing  a  railway  corporation  for 
taxes  under  the  Act  of  1857,  §  3,  its  in- 
debtedness should  be  deducted  from  the 
value  of  its  assets.  People  ex  rel.  v.  Barker, 
141  N.  v.  196,  36  A^.  E.  Rep.  184,  56  JV.  Y. 
S.  R.  834;  affirming  72  Hun  126,  55  A^  Y. 
S.  R.  186,  25  N.  Y.  Supp.  340. 

Suit  was  commenced  to  restrain  the  col- 
lection of  a  railroad  tax  imposed  in  the 
year  1885,  upon  the  ground  that  the 
oath  of  the  assessors  was  defective  in  fol- 
lowing the  form  prescribed  by  the  Act  of 
1 85 1,  ch.  176,  §  8,  instead  of  that  of  the  Act 
of  1885,  ch.  201.  The  two  forms  were  the 
same,  except  that  that  of  1885  did  not  require 
the  assessors  to  state  that  they  had  assessed 
the  property  as  they  would  "  in  payment  of 
a  just  debt  due  from  a  solvent  debtor,"  as 
required  by  the  former  act.  Held,  that  the 
oath  was  suflicient.  Rome,  W.  &*  O.  R.  Co. 
V.  Smith,  39  Hun  (N.  K.)  332 ;  affirmed  in 
loi  N.  Y.  684,  mem. 

In  such  case,  after  the  assessment  had  been 
completed  and  the  oath  had  been  made  in 
conformity  with  the  act  of  1831,  another 
oath  was  taken  by  the  same  assessors  which 
conformed  literally  to  the  act  of  1885.  Held, 
that  even  if  the  first  oath  was  irregular  or 
wholly  defective,  the  assessors  had  power 
to  supply  the  defect  by  taking  a  second 
oath ;  the  fact  that  it  was  made  in  October 
was  immaterial,  as  the  time  in  which  the 
oath  should  be  made  is  only  directory. 
Rome,  IV.  &*  0.  R.  Co.  v.  Smith,  39  Hun 
{N.  Y.)  332;  <nffirmed  in  101  A^.  Y.  684, 
mem. 


(2)  Where  property  is  taxable. — In  taxing 
railroads  under  i  Rev.  St.  414,  §  2,  a  return 
is  to  be  made  to  the  assessors  of  every  town  in 
which  real  estate  of  the  company  is  situated. 
People  ex  rel.  v.  Cheetham,  20  Abb,  N.  Cas, 
(JV.  Y.)  44.— Following  People  ex  rel.  v. 
Cassity,  46  N.  Y.  46. 

A  railroad  corporation  is  not  liable  to 
taxation  upon  its  capital  as  personal  estate 
for  that  part  thereof  which  is  vested  in  the 
lands  over  which  the  road  runs,  and  in  the 
railway  and  other  fixtures  connected  there- 
with ;  but  that  part  of  the  corporate  body  is 
to  be  taxed  as  real  estate  in  the  several 
towns  and  wards  in  which  the  same  is  situ- 
ated, and  at  its  actual  value  at  the  time  of 
the  assessment.  Mohawk  &*  H.  R.  Co.  v. 
Clute,  4  Paige  (N.  Y.)  384.— Followed  in 
People  ex  rel.  v.  Niagara  County  Sup'rs, 
4  Hill  (N.  Y.)  20. 

The  capital  stock  which  is  not  invested 
in  its  railway  or  other  real  estate  is  to  be 
taxed  as  personal  property,  in  the  town  or 
ward  in  which  the  principal  office  or  place 
for  transacting  the  financial  concerns  of  the 
company  is  situated.  Mohawk  &*  H.  R.  Co. 
V.  Clute,  4  Paige  (JV.  Y.)  384. 

That  part  of  the  capital  stock  of  a  rail- 
road company  which  is  not  invested  in  its 
real  estate,  or  its  road,  is  liable  to  taxation 
as  personal  property.  So  an  assessment 
of  $40,000  against  a  company,  in  a  city  where 
it  had  its  principal  place  of  business,  was 
sustained  where  there  was  nothing  to  show 
what  amount  of  capital  stock  the  company 
had  in  the  place  uninvested  in  real  estate. 
People  ex  rel.  v.  Shields,  6  Hun  {N.  Y.)  556. 

A  railroad  companycreated  a  sinking  fund 
for  thtf  sole  purpose  of  paying  a  debt  owed 
to  a  city,  the  debt  being  held  and  managed 
by  trustees  who  lived  in  the  city  and  were 
taxable  inhabitants  of  the  state.  Held,  that 
the  fund  was  properly  assessed  in  the  hands 
of  the  trustees  to  its  full  value  in  the  city. 
People  V.  Board  of  Assessors,  40  N.  Y.  1 54, 

The  fact  that  the  rails,  ties,  and  tracks  of 
a  street  surface  railroad  are  property  and 
subject  to  taxation  generally  affords  no  suf- 
ficient reason  for  taxing  them  for  street  im- 
provements, when  the  law  has  not  made 
them  specially  assessable  for  such  purposes. 
People  ex  rel,  v.  Gilon,  126  A''.  Y.  147,  27  A'. 
E.  Rep,  282,  37  A^.  Y.S.R.17;  reversing  58 
Hun  76,  33  A'^,  Y.  S.  R.  838,  11  N.  Y. 
Supp.  439- 

(3)  Street  railways.  — Vndtr  i  Rev.  St. 
360,  §§  I,  2,  providing  that  "all  lands  within 


p 


TAXATION,  276. 


9M 


this  itate  *  *  *  ihall  be  liable  to  taxation." 
and  that  the  term  "  land  "  shall  be  construed 
to  include  the  land  itself  and  all  buildings 
and  other  articles  erected  upon  or  affixed 
to  the  same,  and  that  the  terms  "real  es- 
tate "  and  "  real  property "  shall  be  con- 
strued to  mean  the  same  as  the  word  land, 
the  tracks  of  a  horse-car  company  arc  to 
be  assessed  as  land.  People  ex  rel.  v.  Cassity, 
46  N.  V.  46 ;  affirming  2  Lans.  294.  —  Ap- 
plied IN  People  ex  rel.  v.  Com'rs  of  Taxes, 
2  Am.  &  Eng.  R.  Cas.  343,  82  N.  Y.  459. 
Followed  in  People  ex  rel.  v.  Cheetham, 
20  Abb.  N.  Cas.  (N.  Y.)  44. 

Commissioners,  in  assessing  the  capital 
stock  of  a  street-car  company,  may  value 
such  stock  at  its  actual  value,  after  deduct- 
ing therefrom  the  cost  of  the  real  estate  of 
the  company,  and  may  refuse  to  deduct  the 
company's  indebtedness.  In  ascertaining 
the  value  of  the  capital  stock,  the  com- 
missioners cannot  disregard  the  indebted- 
ness of  the  company ;  but  after  the  stock 
is  valued,  the  amount  of  indebtedness  can- 
not be  deducted  from  the  valuation.  People 
exrel.v.  Com'rs  of  Taxes,  i  T,6^C.  (N.  Y.) 
635.  —  Followed  in  People  ex  rel.  v. 
Com'rs  of  Taxes,  64  How.  Pr.  (N.  Y.)  405. 

The  commissioners  of  taxes  and  assess- 
ments in  a  city,  in  estimating  the  value  of 
the  capital  stock  of  city  railroad  corpora- 
tions, should  deduct  from  the  actual  value 
of  such  stock :  (i)  the  assessed  value  of  its 
real  estate;  (2)  the  value  of  United  States 
stock  owned  by  it ;  (3)  the  value  of  stock  in 
other  corporations  owned  by  it.  After  these 
deductions  are  made  the  provisions  of  the 
statutes  directing  special  deductions  are 
complied  with,  and  it  becomes  the  duty  of 
the  commissioners  to  return  the  balance  of 
the  capital  stock,  subject  to  assessments. 
People  ex  rel.  v.  Com'rs  of  Taxes,  46  How. 
Pr.  (N.  Y.)  227,  I  7".  (S-  C.  635  ;  affirmed  in 
60  N.  Y.  638,  mem.  —  Distinguishing 
People  ex  rel.  v.  Com'rs  of  Assessments, 
32  Barb.  509;  Bank  Tax  Case,  2  Wall.  (U. 
S.)  200 ;  People  ex  rel.  v.  Ferguson,  38  N.  Y. 
91. — Applied  in  Manhattan  R.  Co.  v. 
Mayor,  etc.,  of  N.  Y.,  13  Am.  &  Eng.  R. 
Cas.  261,  18  Fed.  Rep.  195. 

After  making  due  allowance  for  the  in- 
debtedness of  the  corporation  as  dimin- 
ishing the  value  of  its  capital  stock  the 
estimate  of  the  commissioners  will  be  con- 
clusive, and  the  court  should  not  interfere 
with  it,  as  no  further  deduction  of  its  valua- 
tion can  legally  be  made.    People  ex  rel.  v. 


Com'rs  of  Taxes,  46  How.  Pr.  (N.  K.)  2Vj, 
I  7:  &*  C.  635  ;  affirmed  in  60  N.  Y.  638,  mem. 

The  tracks  of  a  horse-railroad  company 
are  liable  to  assessment  and  taxation  as  real 
estate,  under  the  Act  of  1881,  ch.  293. 
People  ex  rel.  v.  Com'rs  of  Tax's,  21  N. 
Y.  S.  R.  358,  51  Hun  641,  mem.,  4  N.  Y. 
Supp.  41. 

(4)  Resident  or  noH'resident  lands.— RaW- 
road  corporations  are  not,  in  the  purview  of 
the  tax  laws,  non-residents  of  any  town  in 
which  they  possess  lands;  such  lands  are 
to  be  assessed  against  them  the  same  as 
against  inhabitants  of  the  town,  and  not  as 
non-resident  lands.  People  ex  rel.  v.  Cas- 
sity, 46  N.  Y.  46 ;  affirming  2  Lans.  294. — 
Distinguishing  Oswego  Starch  Factory 
V.  Dolloway,  21  N.  Y.  449;  Western  Transp. 
Co.  V.  Scheu,  19  N.  Y.  408. 

The  real  estate  of  railroad  corporations, 
occupied  and  used  by  them  for  railroad 
purposes,  cannot  properly  be  assessed  as 
"non-resident  lands."  People  ex  rel.  v. 
Barker,  48  A^.  Y.  70,  2  Am.  Ry.  Rep.  149; 
affirming  33  How.  Pr.  150,  48  Barb.  173. 

A  company  whose  railroad  passes  through 
several  counties  is,  for  the  purposes  of  taxa- 
tion, to  be  regarded  as  a  resident  of  each 
town  and  county  through  which  it  passes; 
and  its  real  estate  is  properly  assessed  in 
personam  as  the  land  of  a  resident,  and  not 
as  that  of  a  non-resident.  Buffalo  &*  S.  L. 
R.  Co.  V.  Erie  County  Sup'rs,  48  A';  Y.  93,  2 
Am.  Ry.  Rep.  163. 

In  the  case  of  a  non-resident,  lands  are 
to  be  assessed  without  naming  the  owner, 
and  no  person  is  charged  with  the  taxes  nor 
liable  to  pay  the  same.  When  the  tax  upon 
the  land  of  a  non-resident  remains  unpaid, 
the  land  is  eventually  to  be  sold  by  the  state 
comptroller.  So  held,  where  a  railroad  track 
and  property  were  classed  as  non-resident 
lands,  and  the  town  tax  collector  levied 
upon  freight  cars  of  the  company  to  en- 
force payment  of  the  tax.  New  York  &• 
H.  R.  Co.  V.  Lyon,  16  Barb.  (N.  K)  6si. 

Nor  can  the  collector  levy  a  tax  upon  any 
personal  property  of  non-residents,  inas- 
much as  his  warrant  only  authorizes  him 
"  in  case  any  person  named  in  the  assess- 
ment roll  shall  refuse  or  neglect  to  pay  his 
tax,  to  levy  the  same  by  distress  and  sale  of 
the  goods  and  chattels  of  such  person,"  and 
does  not  authorize  the  seizure  and  sale  of 
the  property  of  persons  not  named,  or  whose 
names,  it  is  apparent  from  the  face  of  the 
papers,  the  assessors  had  no  right  to  set 


970 


TAXATION,  276. 


r  '*t 


•W  ••  •' 


t    '   i 


th 


down.    AVw  KtfTil  5<  I/,  Jt.  Co,  v.  Z^m,  i6 
Barb.  (N.  Y.)  651. 

(5)  For  highway  purposes. — The  Act  of 
i837>  §  '•  provides  thut  commissioners  of 
highways,  in  apportioning  tlie  residue  of 
the  highway  labor  to  be  performed  in  tlieir 
town,  after  assessing  one  day's  work  upon 
every  male  inhabitant  of  full  age,  "to  in* 
elude  among  the  inhabitants  of  such  town, 
among  whom  such  residue  is  to  be  appor- 
tioned, all  moneyed  or  stock  corporations 
which  shall  appear  on  the  last  assessment 
roll  of  their  town  to  have  been  assessed 
therein,"  must  follow  the  previous  aetion 
of  the  assessors.  They  are  to  take  the  last 
assessment  roll,  and  to  include  in  their 
assessment  every  corporation  therein  as- 
sessed, and  they  cannot  tax  any  corporation 
which  is  not  upon  the  roll.  Ptople  ex  rel. 
V.  Pierce,  31  Barb.  (N.  Y)  138.— APPLIED 
IN  Fowler  v.  Westervelt,  17  Abb.  Pr.  (N. 

Y.)  59- 

The  Act  of  1837  gives  to  the  highway  com- 
missioners of  a  town  power  to  assess  high« 
way  labor  which  shall  "be  performed  in 
such  district  or  districts  as  the  commission- 
era  of  highways  of  the  town  shall  direct." 
Held,  that  this  authorized  the  assessment  of 
labor  on  a  railroad  company  to  be  per- 
formed in  a  road  district  in  the  town  where 
the  company  did  not  have  property.  New 
York,  L.  E.  6-  W.  li.  Co.  v.  Delaware 
County  Sup'rs,  67  How.  Pr.  {M.  Y.)  5; 
affirmed  in  30  ,Hun  222,  mem. 

(6)  For  local  and  school  purposes.  —  It 
seems  that  the  Act  of  1867,  ch.  694,  "  in  re* 
lation  to  the  valuation  of  property  of  rail- 
road companies  in  school  districts  for  the 
purpose  of  taxation,"  has  no  relation  to  gen- 
eral taxation  for  town  purposes;  it  does 
not  contemplate  that  the  apportionment 
between  the  school  districts  therein  pro- 
vided for  shall  be  indicated  on  the  town 
assessment  roll,  but  by  a  certificate  of 
the  assessors,  to  be  prepared  and  filed  in 
the  town  clerk's  ofiice  after  the  roll  is  com- 
pleted. People  ex  rel.  v.  Adams,  125  N.  Y. 
471,  26  N.  E.  Rep.  746,  36  N.  Y.  S.  R.  i66; 
affirming  56  Hun  645,  mem.,  32  N.  Y.  S.  R. 
398,  10  N.  Y.  Supp.  295.  See  also  People  ex 
rel.  V.  Edick,  yi  N.  Y.  S.  R.  404,  10  N.  Y. 
Supp.  299. 

Under  the  charter  of  the  village  of  Little 
Falls  (Laws  of  1873,  ch.  158,  §39),  in  relation 
to  taxation  for  village  purposes,  the  valua- 
tion of  property  in  the  assessment  rolls  of 
the  towns  "parti  of  which  comprise  the 


territory  of  said  village  "  is  made  the  gen- 
eral rule  of  valuation  for  village  taxes ;  the 
trustees  of  the  village,  as  its  board  of  asses^s- 
ment,  are  required  to  adopt  it,  "as  :ar 
as  practicable,"  unless  the  valuation  has 
changed  by  reason  of  the  circumstances 
mentioned  in  said  provision.  The  power 
given  to  the  board  to  "reduce  or  add  to 
the  valuation"  is  confined  to  the  excep- 
tional cases  specified  in  the  provision. 
People  ex  rel.  v.  Adams,  125  N.  K  471,  26 
A^.  E.  Rep.  746, 36  A^.  Y.  S.  R.  166:  affirming 
56  Hun  645.  mem,,  32  A^.  Y.  S.  R.  398,  10  A^ 
Y.  Supp.  295.  See  also  People  ex  rel.  v.  Edick, 
32  A^.  Y.  S.  R.  404,  10  A^.  Y.  Supp.  299. 

While,  however,  neither  said  Act  of  1867 
nor  the  general  statutes  require  town  as- 
sessors to  assess  the  real  properly  of  a  rail- 
road corporation  separately,  according  to 
the  particular  district  or  locality  in  the  town 
where  it  may  be  located,  the  fact  that  the 
assessors  of  the  town  in  which  said  railroad 
is  located,  in  making  up  their  assessment 
roll,  apportioned  the  valuation  of  such  prop- 
erty among  the  school  districts  of  the  town 
by  way  of  discharging  the  duty  imposed 
upon  them  by  said  act,  does  not  invalidate 
the  assessments,  nor  may  the  valuation  be 
disregarded  by  the  board  of  assessment  of 
the  village.  People  ex  rel.  v.  Adams,  1 25  A'. 
K.  471,  26  A'.  E.  Rep.  746,  36  A'.  Y.  S.  R. 
166;  affirming  56  Hun  645,  mem.,  32  iV.  Y. 
S.  R.  398,  10  A^  Y.  Supp.  295.  See  also 
People  ex  rel.  v.  Edick,  32  A^.  Y.  S.  R.  404, 
10  A^.  Y.  Supp.  299. 

Where,  therefore,  in  proceedings  by  cer- 
tiorari under  the  Act  of  1880,  ch.  269,  to  re- 
view certain  village  assessments  upon  real 
estate  of  a  railroad  company,  a  portion  of 
which  is  located  in  each  of  the  towns  in 
which  the  village  lies,  it  appeared  that  the 
said  board  entirely  disregarded  the  valua- 
tion upon  the  assessment  roll  of  one  of  the 
towns,  in  which  that  portion  of  the  property 
lying  in  said  village  was  valued  separately, 
as  in  a  school  district,  and  where  it  was  not 
claimed  that  the  valuation  had  changed  by 
reason  of  circumstances  specified  in  said 
provision  of  the  charter — held,  that  the  as- 
sessment was  erroneous.  People  ex  rel.  v. 
Adams,  125  A^.  K  471,  26  A^.  E.  Rep.  746, 
36  A^.  K  5.  ;?.  166;  affi,rmi»g  56  Hun  645, 
mem.,  32  N.  Y.  S.  R.  398,  10  A'.  Y.  Supp. 
295.  See  also  People  ex  rel.  v.  Edick,  33 
A^.  Y.  S.  R.  404,  10  A'.  Y.  Supp.  299. 

The  error  was  not  cured  because  of  the 
fact  that  in  the  valuation,  in  the  assessment 


made  the  gen- 
llage  taxes ;  tiie 

board  of  asse^s- 

pt  it,  "as  :ar 
valuation  has 
circumstances 

n.    The  power 
luce  or  add  to 

to  the  excep- 

the    provision. 
5  N.  V.  471.  26 

166;  affirming 
?.  R.  398,  10  N. 

ex  rel.  v.  Edick, 

Supp.  299. 
aid  Act  of  1867 
quire  town  as- 
)perty  of  a  rail- 
r,  according  to 
ilityinthetown 
e  fact  that  the 
ch  said  railroad 
iieir  assessment 
>n  of  such  prop- 
icts  of  the  town 
:  duty  imposed 
I  not  invalidate 
ie  valuation  be 
f  assessment  of 
.  Adams,  125  A'. 
36  N.  Y.  S.  R. 
mem. ,  32  ^V.  Y. 
,  295.  See  also 
V.  Y.  S.  R.  404, 

:eedings  by  cer- 
0,  ch.  269,  to  re> 
nents  upon  real 
iy,  a  portion  of 
if  the  towns  in 
peaied  that  the 
rded  the  valua- 
)ll  of  one  of  the 
I  of  the  property 
lued  separately, 
irhere  it  was  not 
lad  changed  by 
3eciiied  in  said 
eld,  that  the  as- 
"eople  ex  rel.  v. 
(V.  E.  Rep.  746, 
»g  56  Hun  64s, 
10  A^.  Y.  Supp. 
f.  V.  Edick,  32 
upp.  299. 
because  of  the 
the  asseument 


TAXATION,  276. 


971 


roll  of  the  other  town,  of  that  portion  of  the 
relator's  property  lying  therein,  the  valua- 
tion of  that  part  of  it  lying  within  the  limits 
of  the  village  was  not  separately  stated,  thus 
rendering  it  necessary  for  the  board  to 
make  an  original  valuation  of  that  part; 
that  they  were  bound  to  follow  the  town 
valuation  as  far  at  practicable.  PiopU  ex 
rel.  V.  Adams,  M^  N.  K.  471,  26  N.  E.  Rep. 
746,  36  A^.  Y.  S.  R.  166 ;  affirming  56  Hun 
645.  mem.,  3a  N.  V.  S.  R.  398,  10  N.  Y. 
Supp.  295.  See  also  People  ex  rel.  v.  Edick, 
32  N.  Y.  S.  R.  404,  10  A^.  Y.  Supp.  299. 

It  appeared  that,  in  the  case  of  one  of  the 
assessments  complained  of,  the  relator  did 
not  appear  before  the  board  on  "  grievance 
day  "  and  object  to  the  assessment,  but  re- 
lied upon  unofficial  information  that  the 
assessment  would  be  the  same  as  in  the  year 
preceding.  Held,  that  by  its  laches  it  had 
lost  its  right  to  avail  itself  of  the  remedy 
gived  by  the  act  of  1880;  that  as  the  board 
had  jurisdiction  to  assess,  but  adopted  an 
erroneous  principle  of  valuation,  the  case 
was  rather  one  of  overassessment  than  of 
a  void  assessment.  People  ex  rel.  v.  Adams, 
125  A^.  K.  471.  26  A'.  E.  Rep.  746,  36  N.  Y. 
S.  R.  166;  affirming  16  Hun  645,  mem.,  32 
A^.  Y.  S.  R.  398,  10  A^.  Y.  Supp.  295.  See 
also  People  ex  rel.  v.  Edick,  32  A';  Y.  S.  R. 
404,  10  A''.  Y.  Supp.  299. 

As  to  another  assessment,  no  notice  was 
published  as  to  the  final  completion  of  the 
roll.  Held,  that  the  limitation  of  time  pre- 
scribed by  the  Act  of  1880,  §  9,  within  which 
a  party  aggrieved  might  sue  out  a  writ  of 
certiorari,  did  not  apply.  People  ex  rel,  v. 
Adams,  125  N.  K  471.  26  N.  E.  Rep.  746, 
36  A^.  Y.  S.  R.  166;  affirming  56  Hum  64s, 
mem.,  32  A^.  Y.  S.  R.  398,  10  N.  Y.  Supp. 
295.  See  also  People  ex  rel.  v.  Edick,  32  A''. 
Y.  S.  R.  404,  10  A^  Y.  Supp.  299. 

The  fact  that  the  assessment  rolls  sought 
to  be  corrected  were  not  in  the  possession 
of  the  village  trustees  when  the  writs  were 
issued  was  not  material.  People  ex  rel.  v. 
Adams,  125  A^.  K.  471,  26  A';  E.  Rep.  746, 
36  A'^  Y.  S.  R.  166 ;  affirmitig  56  Hun  645, 
mem.,  32  A^.  Y.  S.  R.  398,  10  A^.  Y.  Supp. 
295.  See  also  People  ex  rel.  v.  Edick,  32  A^. 
Y.  S.  R.  404.  10  N.  Y.  Supp.  299. 

(7)  Assessing  capital  stock,  generally.  — 
The  earning  capacity  of  railroad  or  canal 
property  is  a  controlling  consideration,  in 
assessing  it  for  taxation;  but  the  cost  of 
creating  it  may  also  be  considered.  People 
$x  rel.  V.  Roosa,  2  How.  Pr.  N.  S.  (AT.  K.) 


454.— FoLLOWiNO  People  ex  rel.  v.  Keator. 
67  How.  Pr.  rn.— People  ex  rel.  v.  Keator, 
2  Hffw.  Pr.  N.  S.  (N.  K.)  479. 

Under  the  Act  of  1857,  ch.  456,  §  3,  the 
capital  stock  of  a  company  should  be  as- 
sessed at  its  actual  and  not  at  its  par  value. 
People  ex  rel.  v.  Com'rs  of  Taxes,  64  How. 
Pr.  (N.  Y.)  405.— Distinguishing  People 
ex  rel.  v.  Board  of  Assessors,  39  N.  Y.  81. 
Following  People  ex  rel.  v.  Com'rs  of 
Taxes,  i  T.  &  C.  635. 

The  mode  by  which  commissioners  are 
to  arrive  at  "  the  actual  value  "  of  capital 
stock  is  not  pointed  out  in  the  statute  (Act 
of  1857,  ch.  4S6),  and  must  be  left  to  the 
discretion  of  the  commissioners;  but  they 
may  not  disregard  any  legal  rules,  or  adopt 
principles  erroneous  in  law,  and  where  they 
do  so,  their  action  is  subject  to  review. 
Beyond  that  the  court  will  not  interfere 
with  such  violation.  People  ex  rel.  v.  Com'rs 
of  Taxes,  46  Hew.  Pr.  (N.  Y.)  227,  1  T.  4* 
C  635 :  affirmed  in  60  A^.  Y.  638,  mem. 

In  ascertaining  such  value  the  commis- 
sioners cannot  disregard  the  fact  of  indebt- 
edness. It  enters  as  much  into  the  value 
of  the  stock  as  it  does  in  the  assessment  of 
the  personal  estate  of  an  individual.  The 
capital  stock  should  be  valued  at  what  it  is 
actually  worth.  People  ex  rel.  v.  Com'rs  of 
Taxes,  46  How.  Pr.  (JV.  Y.)  227,  i  T.  &*  C. 
635 ;  affirmed  in  60  A^.  Y.  638,  mem. 

Under  the  Act  of  1857,  ch.  456,  §  3,  prr 
viding  that  the  capital  stock  of  every  com- 
pany liable  to  taxation,  after  deducting  the 
assessed  value  of  its  real  estate,  and  all 
shares  of  stock  in  other  corporations  ac- 
tually owned  by  such  company  which  are 
taxable  upon  their  capital  stock  under  the 
laws  of  this  state,  shall  "  be  assessed  at  its 
actual  value,"  it  is  the  duty  of  the  tax  com- 
missioners to  examine  and  determine  "the 
actual  value "  of  the  stock ;  and  where  it 
appears  that  the  stock  is  of  no  value  what- 
ever, by  reason  of  the  indebtedness  of  the 
company  exceeding  the  value  of  its  assets, 
it  should  not  be  assessed.  People  ex  rel,  v. 
Com'rs  of  Taxes,  31  Hun  (N.  Y.)  32. 

In  assessing  the  capital  stock  of  a  corpo- 
ration the  assessors  have  a  right  to  resort 
to  all  the  tests  and  measures  of  value  which 
men  ordinarily  adopt  for  business  purposes 
in  estimating  and  measuring  values  of 
property.  They  may  take  into  account  the 
business  of  the  corporation,  its  property, 
the  value  of  its  assets,  the  amount  and 
nature  of  its  present  and  contingent  lia- 


97» 


TAXATION,  276. 


bilities,  the  amount  of  its  dividends,  nnd 
the  marlcet  value  of  its  sliares  of  stocic  in 
the  linnds  of  individuals.  Tlicy  may  resort 
to  any  or  all  of  tlicse,  as  to  them  seems 
best,  and  they  are  not  confined  to  one  of 
tlicm.  Tliey  may  take  the  test  which  they 
thinl<  will  be  most  lilscly  to  give  to  them 
the  iictiial  value  of  the  stock,  and  they  may 
disregard  all  others.  And  in  their  estimate 
they  are  at  liberty  to  consider  not  only  the 
property  and  liabilities  of  the  company,  but 
also  the  value  of  the  franchise  secured  to 
the  owner  as  a  corporation.  People  ex  rel. 
V.  Coni'rs  of  Taxes,  21  N.  V.  S.  A'.  350,  51 
////«  641,  mem.,  4  A'.   J'.  Su/>p.  43. 

The  assessment  of  ihe  capital  stock  of  a 
company  at  par  sustained  where  the  market 
value  was  forty-one  per  cent,  above  par. 
People  ex  rel.  v.  Com'rs  of  Taxes,  21  N, 
y.  S.  A'.  357,  51  //««  641,  mem.,  4  A'.  V. 
Supp.  47- 

And  where  a  dividend  of  eight  per  cent, 
has  been  paid  the  last  two  years,  and  the 
stock  is  worth  130  per  cent.,  it  is  reasonable 
to  assume  that  the  value  of  the  stock  is  the 
same,  and  that  the  commissioners  were 
justified  in  assessing  it  at  its  par  value. 
People  ex  rel.  v.  Com'rs  of  Taxes,  21  A''. 
Y.  S.  R.  355,  51  Huh  641.  mem.,  4  A'^.  Y. 
Supp.  45. 

An  assessment  of  capital  stock  at  ninety- 
four  and  one  half  per  cent,  sustained  where 
the  actual  value  was  one  hundred  and  thirty 
percent,  and  it  was  yielding  an  annual  divi- 
dend of  eight  per  cent.  People  ex  rel.  v. 
Com'rs  of  Taxes,  21  N.  Y.  S.  R.  350.  51  Hun 
641,  mem.,  4  A^.  Y.  Supp.  43. 

Under  Laws  of  1880,  ch.  542,  §  3,  as 
amended  in  1881,  ch.  361,  if  a  corporation 
makes  dividends  of  six  per  cent,  or  more 
on  the  par  value  of  its  capital  stock  during 
the  year  it  shall  pay  one  quarter  mill  upon 
the  capital  stock  for  each  one  per  centum  of 
dividend,  but  if  no  dividends  or  if  dividends 
less  than  six  per  cent,  were  declared,  then 
it  shall  pay  one  and  one  half  mills  on  each 
dollar  of  the  value  of  the  stock.  Defendant 
paid  five  and  three  quarter  per  cent,  divi- 
dends. The  actual  value  of  its  stock  was 
110.16  per  cent.  It  appeared  that  if  taxed 
under  the  second  clause  it  would  actually 
pay  more  than  if  it  had  declared  six-per- 
cent, dividends.  Held,  that  the  law  was  not 
inequitable,  and  that  the  company  was 
properly  taxed  under  the  second  clause. 
People  V.  Delaware  &*  H.  Canal  Co.,  54  Hun 
598.  27  N.  Y.  S.  R.  624,  7  A^.  Y.  Supp.  890; 


affirmed  in  I3i  A^  Y.  666,  mtm.,  24  N.  E, 
Rep.  1093,  metn. 

(8)  Deductions  to  he  made.—MnAtx  the 
Act  of  1857,  ch.  456,  in  reference  to  the  as- 
sessment of  taxes  on  corporations,  the 
capital  stock  of  a  corporation,  less  the  part 
thereof  owned  by  the  state  or  by  literary  or 
charitable  institutions,  or  exenipted  from 
taxation  by  1  Rev.  St.  388,  §  ..  is  to  be  as- 
sessed at  its  actual  value,  whether  more  or 
less  than  its  nominal  amount,  deducting 
therefrom,  however,  the  assessed  value  of  its 
real  estate  and  shares  owned  by  it  in  other 
taxable  corporations,  and  also  from  its 
surplus  or  reserved  fund,  if  any,  an  amount 
not  exceeding  ten  per  cent,  of  its  capital. 
People  ex  rel.  v.  Com'rs  of  Taxes,  104  A^.  Y. 
240,  10  A'.  E.  Rep.  437,  5  A'.  Y.  S.  R.  647 ; 
affirming  40  Hun  631,  mem. 

Where  a  corporation,  liable  to  taxation 
under  said  act,  has  real  estate  in  another 
state  or  country,  the  provision  directing  n 
deduction  of  the  assessed  value  of  such  real 
estate  requires  that  the  deduction  shall  be 
measured  by  its  actual  value;  and  in  the 
absence  of  other  and  better  evidence,  the 
price  paid  for  the  real  estate  may  be  taken 
as  representing  such  value.  People  ex  rel.  v. 
Com'rs  of  Taxes,  104  A'^.  Y.  240,  \oN.  E.  Rep. 
437.  5  A^-  y-  S.  R.  647 ;  affirming  40  Hun 
6i\,mem. 

To  entitle  a  company  to  deduct  the  as- 
sessed value  of  real  estate  held  by  it,  it 
must  affirmatively  appear  that  such  real 
estate  was  paid  for  out  of  the  capital  of  the 
company.  People  ex  rel.  v.  Com'rs  of  Taxes, 
3!  Hun  (N.  Y.)  32.  —  Distinguishing 
People  ex  rel.  v.  Com'rs  of  Ta.\es,  23  N.  Y. 
193 ;  Oswego  Starch  Factory  v.  Dolloway, 
21  N.  Y.  455. 

Funded  and  floating  debts  owed  by  a 
company  are  not  within  the  deductions 
provided  for  by  Laws  1857,  ch.  456,  §  3,  and 
cannot  be  used  by  way  of  absorbing  the 
balance  adopted  by  the  commissioners  as 
the  amount  for  which  the  company  ;s  as- 
sessable. People  ex  rel.  v.  Com'rs  of  Taxes, 
21  A'.  Y.  S.  R.  350,  51  Hun  641,  mem.,  4 
A^.    Y.  Supp.  43. 

(9)  Assessing  real  estate,  generally.  — 
When  assessors  add  anything  to  the  valua- 
tion by  reason  of  the  increased  cost  of  the 
road,  or  on  account  of  its  income  or  pro- 
ductiveness,  so  far  they  transcend  the  au- 
thority vested  in  them  &;^d  their  act  is  void. 
Albany  &»  IV.  S.  R.  Co.  v.  Canaan,  16  Barb, 
(N.  r.)244. 


TAXATION,  270. 


vn 


t*m.,  34  N.  E. 

r.— Under  tlie 
lice  to  the  as- 
loratioiis,   tlic 
,  Icfs  the  part 
by  literary  or 
;cmpted  from 
,.  is  to  be  as- 
iher  more  or 
It,  deducting 
ed  value  of  its 
)y  it  in  other 
Iso    from    its 
y,  an  amount 
)f  its  capital. 
es,  104  A'.   Y. 
Y.  S.  A'.  647 ; 

!  to  taxiition 
e  in  another 
1  directing;  a 
!  of  such  rciil 
tion  shall  be 
;  and  in  the 
vidence,  the 
ay  be  taken 
>/>/f  ex  rel.  v. 
N.  E.  />/. 
ifig  40  Hun 

luct  the  as- 
Id  by  it,   it 

such  real 
ipital  of  the 
rs  of  Taxes, 
NGUISHING 
es,  23  N.  Y, 

Dolloway, 

f)wed  by  a 
deductions 
56.  §  3.  and 
orbing  the 
ssioners  as 
fiany  :s  as- 
J  of  Taxes, 
I,  mem,,  4 

nerally,  — 
the  valua- 
cost  of  the 
lie  or  pro- 
d  the  au- 
ict  is  void. 
»,  16  Bard. 


Under  the  Act  of  1851,  ch.  176,  |  5,  all 
real  and  personal  estate  liable  to  taxaiioa 
is  to  be  assessed  at  its  full  and  true  value. 
HeM,  that  the  fact  that  the  assessors  did 
not  obey  the  statute,  and  assessed  property 
generally  at  one  third  of  its  value,  would 
not  justify  the  court  in  reducing  a  railroad 
assessment  which  was  fixed  at  one  third  of 
the  actual  value  of  the  property  as  ascer* 
tained  by  the  assessors,  but  at  more  than 
that  amount  as  valued  by  the  company,  but 
at  less  than  the  actual  value  fixed  by  the 
company.  The  company  valued  its  prop* 
erty  in  the  town  at  $24,000  and  it  was 
assessed  at  $17,500.  People  ex  rel.  v.  Dixon, 
%Hun(N.  Y.)  178. 

But  where  it  appears  that  other  property 
in  the  town  has  not  been  assessed  nt  more 
than  forty  per  cent,  of  its  actual  value, 
computed  as  the  statute  requires  it  to  be 
computed,  while  railroad  property  has  been 
assessed  at  its  full  actual  value,  the  valuation 
of  the  railroad  property  should  be  reduced 
sixty  per  cent.  People  v.  Keator,  67  How. 
Pr.  (N,  Y.)  277  ;  affirmed  in  36  Hun  593. 

One  of  the  chief  factors  in  determining  the 
value  of  a  railroad  for  the  purposes  of  assess- 
ment is  the  amount  earned  by  the  company, 
or  its  capacity  to  do  busineb?..  and  the  return 
of  a  fair  equivalent  to  its  stocivholdors  for 
the  money  invested.  In  assessing  the  r^a! 
estate  of  a  railroad  corporation  the  assessors 
are  not  required  to  assess  it  as  an  isolated 
piece  of  land,  but  each  piece  of  property  is 
to  be  estimated  in  connection  with  its  posi- 
tion, its  incidents,  and  the  business  and 
profits  to  be  derived  therefrom.  It  is  to  be 
regarded  as  part  and  parcel  of  the  whole 
railroad,  and  the  whole  line  is  to  be  taken 
into  consideration ;  its  capacity  for  earn- 
ings, and  its  expenses,  etc.,  are  all  to  be 
taken  into  account,  and  from  that,  among 
other  things,  is  to  be  evolved  the  proper 
amount  which  should  be  assessed  upon  the 
company's  property  in  each  town  through 
which  the  line  passes.  People  v.  Wilder,  3 
N.  Y.  S.  R.  159. —Quoted  in  People  ex 
rel.  V.  Assessors,  17  N.  Y.  S.  R.  980. 

There  was  no  process  by  which  the 
assessors  of  Newburgh,  in  1884,  could  fix 
the  value  of  the  West  Shore  railway.  It 
had  no  value  save  for  a  sale  to  its  more 
powerful  rival,  whose  inducement  to  pur- 
chase could  only  come  from  the  desire  to 
end  the  relentless  cutting  of  rates.  It  was 
thought  to  be  only  a  question  of  time  and 
price,  but  no  one  could  do  more  than  guest 


at  either.  The  situation  of  the  company 
made  it  impracticable  for  the  Newburgh 
assessors  to  consider  the  value  of  the  whole 
route,  or  to  value  the  two  miles  in  that  city 
ratably  with  the  whole.  People  ex  rel,  v. 
Toohey,  4  A'.   Y.  S.  R.  895. 

But  it  seems  that  the  requirement  of  the 
statute  will  be  complied  with  by  stating  the 
number  of  miles  of  road,  without  adding 
the  quantity  of  land  embraced.  Albany  &* 
tV.  S.  R.  Co.  v.  Canaan,  16  Bard.  (A'.  Y.)  244. 

(10)  Cost  and  earnings  must  be  considered, 
—In  estimating  the  value  of  railroad  prop- 
erly within  a  town,  its  cost  is  not  to  govern 
solely.  Its  productiveness  for  railroad  pur- 
poses, and  other  things,  must  be  consid- 
ered. People  ex  rel.  v.  Pond,  13  Abb.  N, 
Cas.  (N.  Y.)  i;  appeal  dismissed  in  92  N,  Y, 
643,»i««.— Followed  in  People  ex  rel.  v. 
Keator,  36  Hun  l^i,— People  ex  rel.  v. 
Keator,  36  Hun  (N.  Y.)  592,  17  Abb.  N. 
Cas.  369 ;  affirming  67  How.  Pr.  277 ;  appeal 
dismissed  in  loi  A'.  Y.  610,  mem.,  yHow,  Pr. 
N.  S.  210.  —  Following  People  ex  rel.  v. 
Weaver,  20  Wkly,  Dig.  5^5 ;  People  ex  rel. 
V.  Pond,  13  Abb.  N.  Cas.  i ;  People  ex  rcl. 
V.  Barker,  48  N.  Y.  jo.— People  ex  rel.  v. 
Keator,  67  How.  Pr.  (N.  Y.)  277 ;  affirmed 
in  36  Hun  592. 

And  it  is  not  competent  for  the  com- 
pany to  show  the  average  net  earnings  of 
the  company  for  the  last  four  years,  and 
what  part  thereof  was  derived  from  other 
sources  than  the  use  of  the  taxed  prop- 
erty, such  as  earnings  of  freight  cars  on 
other  roads,  profits  of  its  storage  and  ele- 
vator business,  etc.  People  ex  rel.  v.  Pond, 
13  Abb.  N.  Cas.  {N.  Y.)  t ;  appeal  dismissed 
in  92  A'^   Y.  643,  mem. 

The  amount  of  dividends  is  not  the  sole 
evidence  of  the  productiveness  of  a  road, 
for  the  purpose  of  taxation.  The  actual 
value  of  the  stock  is  some  evidence  on  that 
point ;  and  the  legislature  may  in  some 
cases  determine  the  rate  of  taxation  by  the 
dividends  received,  and  in  others  by  the 
actual  value  of  the  stock.  People  v.  Dela- 
ware 6-  H.  Canal  Co.,  54  Hun  598,  27  A''.  Y. 
S.  R.  624,  7  A';  Y.  Supp.  890 ;  affirmed  in 
121  N.  Y.  666,  mem.,  24  A^.  E.  Rep.  1093,  mem. 

Under  the  Act  of  1851,  all  real  and  per- 
sonal estate  liable  to  taxation  is  required  to 
be  assessed  at  its  full  and  true  value  as  the 
assessors  would  "  appraise  the  same  in  pay- 
ment of  a  just  debt  due  from  a  solvent 
debtor,"  and  no  distinction  is  made  between 
the  property  of  a  corporation  and  that  of  an 


974 


TAXATION,  276. 


■N 


t,f 


lies;}!"' 


individual;  and  it  is  required  that  the 
assessors  shall  enter  the  quantity  of  real 
estate  owned  by  any  company  situate  within 
their  town  or  ward  at  the  actual  value 
thereof,  estimated  as  in  other  cases.  He/d, 
that  it  is  the  du'y  of  the  assessors  to  esti- 
mate the  value  of  !and  of  a  railroad  and  the 
erections  and  fixtures  thereon,  irrespective 
of  whether  the  road  is  well  managed  or  not, 
or  whether  it  is  profitable  to  the  stockhold- 
ers or  not.  Such  property  is  to  be  appraised 
in  the  same  manner  as  the  adjacent  lands 
belonging  to  individuals,  and  without  ref- 
erence to  other  parts  of  the  railway.  Albany 
&*  S.  R.  Co.  V.  Osborn,  I2  Barb.  {N.  Y.)  223. 
—  Quoted  in  Albany  &  W.  S.  R.  Co.  v. 
Canaan,  16  Barb.  244.  Reviews:!;  in  State 
V.  Cent!  di  Pac.  R.  Co.,  10  Ncv.  47. 

It  is  the  duty  of  assessors  to  estimate  and 
assess  that  portion  of  a  railroad  within  their 
town  "at  its  full  and  true  value."  In  as- 
certaining this  value,  the  superstructure 
and  fixtures,  and  everything  annexed  to 
the  land,  are  to  be  taken  into  account. 
But  whether  the  stock  of  the  company  I.? 
above  or  below  par,  or  whether  the  busi- 
ness of  the  road  is  productive  or  unproduc- 
tive, are  questions  with  which  the  assessors 
liave  nothing  to  do.  Albany  &>  W.  S.  R. 
Co.  V.  Canaan,  16  Barb.  {N.  Y.)  244.— Quot- 
ing Albany  &  S.  R.  Co.  v.  Osborn,  12  Barb. 
223.— Reviewed  in  State  v.  Central  Pac. 
R.  Co.,  10  Nev.  47. 

The  law  requires  real  estate  to  be  assessed 
at  its  actual  value.  Actual  sales  of  the 
san^e,  or  similar  property,  may  be  taken 
into  consideration  in  (>'ermining  this  value, 
and  also  the  earning  ^i  pacity  of  the  prop- 
erty; but  mortgages  on  the  property  can- 
not be  deducted.  People  ex  rel.  v.  Haren, 
19  A^.  K  5.  ^.  818,  3  N.  Y  Supp.  86. 

In  assessing  a  piece  of  a  railroad  passing 
through  a  town,  the  earning  capacity  of  the 
whole  road  may  be  considered.  In  ascer- 
taining such  earning  capacity  it  is  proper  to 
deduct  operating  expenses,  but  not  interest 
on  mortgages.  People  ex  rel.  v.  Haren,  19 
N.  Y.  S.R.ZxZ.i  N.  Y.  Supp.  86. 

The  real  property  of  a  railroad  should 
not  be  valued  for  taxation  with  reference  to 
the  earning  capacity  of  the  road  alone ;  but 
the  original  cost,  the  cost  of  present  repro- 
duction, and  its  earning  capacity  should  be 
considered.  People  ex  rel.  v.  Gantey,  29 
A^.  Y.  S.  R.  130,  8  N.  Y.  Supp.  563,  56  Hun 
639;  affirmed  in  131  A''.  Y.  566,  mem.,  42 
N.  Y.  S.  R.  947,  30  N.  E.  Rep.  64. 


It  is  proper  for  assessors,  in  valuing  the 
property  of  a  railroad  corporation  in  their 
town  liable  to  assessment,  to  take  into  con- 
sideration the  verified  reports  of  the  com- 
pany as  to  earnings,  made  as  required  by  law. 
People  ex  rel.  v.  Hicks,  105  A^.  Y.  198,  7  N. 
Y.  S.  R.  359,  II  N.  E.  Rep.  653 ;  affirming 
40  Hun  598,  2  2^.  Y.  S.  R.  294. 

(11)  The  road  as  a  whole  is  to  be  consid- 
ered.— And  the  value  of  the  part  of  the  road 
which  is  in  the  town  is  to  be  ascertained 
by  valuing,  as  a  part  of  a  whole,  a  continu- 
ous way  to  carry  passengers  and  freight 
from  one  commercial  business  point  to  an- 
other, and  the  profits  of  its  use  for  that 
purpose.  People  ex  rel.  v.  Pond,  13  Abb.  N. 
Cas.  (N.  Y.)  I ;  appeal  dismissed  in  92  A^.  Y. 
643,  mem.  People  v.  Zoeller,  i^  N,  Y.  Supp. 
684.  People  ex  rel.  v.  Keator,  67  How.  Pr. 
(N.  Y.)  277 ;  affirmed  in  36  Hun  592.—  Fol- 
lowed in  People  ex  rel.  v.  Roosa,  2  How. 
Pr.  N.  S.  (N.  Y.)  454- 

Under  the  Act  of  1884,  ch.  57,  requiring 
assessors  to  value  "  real  property  at  its  full, 
fair  value,  as  the  same  would  be  appraised 
in  the  payment  of  a  just  debt  by  a  solvent 
debtor,"  the  assessors  may  take  into  ac- 
count the  cost,  location,  feeders,  probable 
increase  of  business,  and,  if  practicable, 
should  ascertain  the  aggregate  net  earnings 
of  the  road,  which  they  may  capitalize  and 
consider  in  determining  what  is  the  full  and 
fair  value;  but  they  should  do  this  with  a 
knowledge  of  the  road  as  a  whole,  with  its 
net  earnings  and  expenses.  People  ex  rel.  v. 
Assessors.  17  N.  Y.  S.  R.  980,  2  AT.  Y.  Supp. 
240.— Quoting  People  ex  rel.  v.  Hicks,  40 
Hun  601 ;  People  ex  rel.  v.  Wilder,  3  N.  Y. 
S.  R.  159. 

In  assessing  the  real  estate  of  a  railroad 
corporation,  assessors  are  not  required  to 
assess  it  as  an  isolated  piece  of  land,  but 
each  piece  of  property  is  to  be  estimated  in 
connection  with  its  position,  its  incidents, 
and  the  business  and  profits  to  be  derived 
therefrom.  People  ex  rel.  v.  Barker,  48 
A^.  Y.  70,  2  Am.  Ry.  Rep.  149 ;  affirming  33 
How.  Pr.  150,  48  Barb.  173. 

(12)  Hearings  and  proceedings  before  the 
board.  — UnAa  i  Rev.  St.  393.  §§  19,  20, 
providing  that  all  persons  conceiving  them- 
selves aggrieved  by  an  assessment  are  en- 
titU^d  to  a  hearing  before  the  board  of 
assessors,  a  corporation  is  entitled  to  such  a 
hearing,  as  well  as  any  natural  person,  and 
it  cannot  be  deprived  thereof  by  its  failure 
to  comply  with  the    statutory  provision! 


TAXATION,  276. 


975 


1  valuing  the 
ition  in  their 
ake  into  con- 

of  the  com* 
|uired  bylaw. 

r.  198,  7  ^r. 
53 ;  affirming 

to  be  consid- 

rt  of  the  road 
ascertained 

le,  a  continu- 
and  freight 
point  to  an- 
use  for  tliat 

id,  13  Abb.  N. 

d  in  92  N.  Y. 

5  N.  y.  Supp. 

,  67  I/ouf.  Pr. 

K«  592,— FOL- 

loosa,  2  How. 

57,  requiring 
Tty  at  its  full, 

be  appraised 
t  by  a  solvent 
talce  into  ac- 
jers,  probable 
f  practicable, 
e  net  earnings 
capitalize  and 

is  the  full  and 
lo  this  with  a 
vhole,  with  its 
''eopie  ex  rel,  v. 

2  N.  V.  Supp. 
I.  V.  Hicks,  40 
aider,  3  N.  Y. 

:  of  a  railroad 
)t  required  to 
e  of  land,  but 
e  estimated  in 
its  incidents, 
to  be  derived 
If.  Barter,  48 
;  affirming  33 

fngs  before  tht 

193.  S§  '9.  20. 
iceiving  them- 
sment  are  en- 
the  board  of 
itied  to  such  a 
al  person,  and 
r  by  its  failure 
>ry  provisions 


requiring  the  filing  of  a  written  statement. 
People  ex  rel.  v.  Pitman,  9  N,  Y.  S.  R.  469, 
45  Hun  588,  mem.  People  ex  rel.  v.  Cheet- 
Aam,  20  Abb.  N.  Cas.  'N.  Y.)  44.  People  ex 
rel,  v.  Duguid,  68  Hun  243,  52  N.  Y.  S.  R. 
190,  22  N.  Y.  Supp.  988. 

The  omission  of  the  agent  of  a  company 
to  appear  before  the  assessors  on  grievance 
day,  through  reliance  upon  the  assurance  of 
one  of  the  assessors  that  if  the  board  did 
not  then  reduce  the  company's  assessment, 
it  would  adjourn  to  another  day  to  enable 
the  agent  to  present  his  complaint,  is  excus- 
able and  is  not  such  laches  as  precludes  the 
railroad  company  from  reviewing  the  assess- 
ment by  certiorari  under  the  act  of  1880. 
People  ex  rel.  v.  Duguid,  68  Hun  243,  52 
N.  Y.  S.  R.  190,  22  N.  Y.  Supp.  988. 

A  company  objected  that  an  assessment 
roll  was  in  three  parts  on  the  review  day 
when  such  roll  was  inspected  by  it,  and  an 
objection  made  to  the  valuation  of  its  prop- 
erty as  excessive,  and  that  afterwards  the 
three  parts  were  made  into  a  single  roll, 
which  was  verified.  Held,  that  this  did  not 
show  any  material  departure  from  the  stat- 
ute, as  there  is  notliing  forbidding  the  roll 
to  be  originally  made  out  in  parts.  People 
ex  rel.  v.  Clapp,  46  N.  Y.  S.  R.  509, 64  Hun 
547.  19  N.  Y.  Supp.  531. 

The  Rev.  St.  ch.  13,  title  4,  §  24,  as 
amended  by  ch.  536  of  the  Acts  of  1857, 
makes  it  the  duty  of  every  railroad  company 
to  deliver  on  or  before  the  first  day  of  May 
in  each  year,  to  the  assessors  of  each  town 
or  ward  in  which  its  road  may  run,  a  list  of 
all  real  estate  and  the  value  thereof.  By 
section  26  a  penalty  is  imposed  upon  any 
company  omitting  to  furnish  the  list  within 
thirty  days  after  the  first  day  of  May.  Held, 
that  if  the  list  be  delivered  within  the  thirty 
days,  the  assessors  must  be  controlled  by  it 
in  like  manner  as  if  it  had  been  delivered 
by  the  first  day  of  May ;  and  if  received  at 
any  time  before  th'  rolls  are  completed,  it 
must  be  regarded  as  prima  facie  evidence 
of  value.  Ptopie  ex  rel.  v.  Ross,  15  How.  Pr. 
(AT.  K.)  63. 

But  if  such  list  be  not  delivered  until 
after  the  completion  of  the  roll,  the  asses- 
sors are  not  obliged  to  give  it  any  effect 
or  consideration,  and  the  roll  is  to  be  re- 
garded as  completed  when  the  assessors 
are  ready  to  make  a  copy  for  public  in- 
spection, and  give  notice  of  a  meeting  for 
review.  People  ex  rel,  v.  Ross,  15  How.  Pr. 
IN.  Y.)  63. 


The  relator,  a  corporation  liable  to  taxa- 
tion for  state  purposes  under  the  Act  of 
1880,  ch.  542,  was  omitted  from  the  assess- 
ment roll  by  the  assessors  of  the  city  in 
which  it  was  taxable,  and  no  tax  upon  its 
personal  property  for  city  and  county  pur- 
poses was  imposed  for  that  year.  In  1881  it 
was  assessed  for  that  year,  and,  in  addition, 
for  the  omitted  year,  under  the  act  of  1865, 
the  valuation  for  the  year  1879  being  taken. 
Notice  was  given  as  prescribed  by  the  stat- 
ute, and  attention  was  also  called  to  the  laws 
of  both  years.  Held,  that  the  act  of  1 865  was 
adjustable  to  the  change  made  by  the  act 
of  1880,  and  that  the  assessment  was  valid. 
People  ex  rel.  v.  Board  of  Assessors,  92  A'^  Y. 
430;  affirming  27  Hun  614,  mem. 

(13)  Reviewing  assessments  in  court. — It 
is  incumbent  upon  a  corporation,  before  it 
is  entitled  to  call  upon  the  court  to  correct 
an  assessment  by  increasing  the  sum  to  be 
deducted  for  the  value  of  its  real  estate,  to 
give  evidence  and  furnish  data  showing 
that  the  actual  value  exceeds  the  sum  fixed 
by  the  assessors.  It  is  not  enough  that  the 
evidence  raises  a  doubt  or  permits  a  con- 
jecture that  injustice  may  have  been  done. 
People  ex  rel.  v.  Com'rs  of  Taxes,  104  N.  Y. 
240,  10  A'.  E.  Rep.  437,  s  A^.  Y.  S.  R.  647 ; 
affirming  40  Hun  631,  mem. 

Assessors  were  required  to  pay  costs  in  a 
case  where  they  refused  to  be  bound  by  the 
law  and  the  evidence,  and  fixed  an  errone- 
ous and  outrageous  valuation  on  railroad 
property  for  no  other  reason  than  that  it 
was  in  their  power  so  to  do.  People  ex  rel, 
v.  Wilder,  3  A^.  Y.  S.  R.  159. 

The  Act  of  1880,  ch.  269,  §  i,  relating  to 
reviewing  tax  assessments  by  certiorari 
upon  petition,  requires  that  the  petition 
shall  be  duly  verified,  but  the  form  for 
the  pleading  is  not  prescribed  ;  therefore  a 
veri^cation  by  an  agent  which  does  not 
state  that  there  is  no  officer  or  director  of 
his  company  then  in  the  county,  but  does 
state  that  no  such  officer  or  director  resides 
in  the  county,  is  sufficient.  People  ex  rel.  v. 
Cheetham,  20  Abb.  N.  Cas.  (A\  Y.)  44. 

The  Act  of  1880,  ch.  269,  provides  for  re- 
viewing an  assessment  and  taxation  upon 
certiorari,  and  authorizes  the  court  to  or- 
der a  reassessment,  or  a  correction,  where 
property  has  been  assessed  at  a  higher  pro- 
portionate valu*  than  other  property.  It 
appeared  that  the  property  of  a  railroad 
company  in  a  town  had  been  assessed  at 
nearly  its  full  value,  while  other  property  in 


m 


976 


i 


TAXATION,  277. 


Kl;| 


;i    It 


,  { iiRJ  •'    (>ii 


1  iGB';f ., 


...■hi  \ 


s 


the  town  wai  assessed  at  not  more  than  forty 
per  cent,  of  its  value.  I/e/d,  that  the  court 
would  order  a  ratable  reduction  of  the  as- 
sessment of  the  railroad  property.  PeopU 
V.  ZoelUr,  \^N.  Y.  Supp.  684. 

Section  4  of  the  above  act  provides  that 
the  court  may  appoint  a  referee  to  take  such 
evidence  as  it  may  direct  in  a  proceeding  to 
review  such  assessment.  A  return  to  a  writ 
of  certiorari  contained  a  written  statement 
signed  by  the  assessors,  to  the  effect  that 
they  had  refused  to  hear  testimony  in  refer- 
ence to  the  assessment,  offered  by  the  agent 
of  a  railroad  company  in  addition  to  his  own 
affidavit.  Held,  that  a  reference  should  be 
ordered  to  take  other  testimony.  People  v. 
Zoeller,  \<,N.Y.  Supp.  684. 

In  such  case  the  assessors  testified  that 
they  understood  that  such  written  statement 
only  showed  that  the  agent  of  the  company 
appeared  before  the  board ;  but  the  chair- 
man of  the  board  testified  that  the  state- 
ment was  read  before  b^ing  signed.  Held, 
that  it  would  be  taken  as  conclusive  evi- 
dence against  the  assessors  as  to  their  re- 
fusal to  hear  other  evidence  People  v. 
Zoeller,  15  A^  Y.  Supp.  684. 

Where  a  writ  of  certiorari  to  review  an 
assessment  is  made  returnable  to  a  county 
clerk's  office  instead  of  at  special  term,  it 
may  be  amended  under  3  Rev.  St.  ch.  7, 
§  10,  giving  to  the  court  power  to  amend  a 
special  proceeding.  People  ex  rel.  v.  Cook, 
42  A^.  Y.  S.  P.  245,  62  Hun  303,  17  N.  Y. 
Supp.  546.  —  Reviewing  Bohlen  v.  Metro- 
politan El.  R.  Co.,  121  N.  Y.  546,  31  N.  Y. 
S.  R.  888;  People  ex  rel.  v.  Assessors,  6 
Civ.  Pro.  297. 

In  a  proceeding  to  review  the  assessment 
of  that  portion  of  a  railroad  situated  in  a 
certain  town  which  was  leased  to  a  foreign 
corporation  for  the  term  of  the  corporate 
existence  of  the  company  owning  the  road, 
the  lessee  to  pay  the  taxes  on  the  property, 
the  matter  was  referred  to  a  referee.  Held, 
that  it  was  proper  for  him  to  take  the  rent- 
als received  by  the  lessor  and  to  divide 
the  same  by  the  length  of  the  road,  and  to 
'Capitalize  the  amount  so  obtained,  after 
making  proper  deductions  for  the  cost  of 
equipment,  improvements,  etc.  People  ex 
rel.  V.  Reid,  46  A^.  Y.  S.  P.  408,  64  Hun  553, 
19  A^.  Y.  Supp.  528. 

277.  North  Carolina.  —  The  legisla- 
ture chartered  a  railroad  with  an  exemption 
from  taxation  for  a  certain  term,  with  the 
right  to  impose  a  tax  thereafter  whenever 


the  annual  profits  should  exceed  six  per 
cent.  The  profits  exceeded  six  per  cent,  in 
the  year  1866,  but  the  legislature  did  not 
demand  a  tax  until  the  year  1891,  when  a 
tax  was  imposed  for  each  of  the  preceding 
years  back  to  1866.  Held,  that  as  the  right 
to  tax  depended  upon  the  charter  contract, 
the  legislature  was  not  debarred  from  im- 
posing the  tax.  It  appeared  that  the  com- 
pany had  failed  to  report  its  business,  as 
required  by  its  charter,  until  the  year  1889, 
and  this  would  excuse  any  apparent  laches 
on  the  part  of  the  legislature.  State  ex  rel. 
v..  Seaboard  &*  P.  P.  Co.,  52  Fed.  Pep.  450. 

The  right  to  value  the  tangible  real  and 
personal  property  of  a  corporation,  as  dis- 
tinguished from  its  franchise,  is  vested  by 
the  Constitution  in  the  township  boards  of 
trustees.  Such  franchise  is  capable  of  val- 
uation, apart  from  the  property  which  the 
corporation  may  happen  to  own ;  and  a 
valuation  of  the  franchise  does  not  neces- 
sarily or  properly  include  a  valuation  of  the 
corporate  property.  Wilmington,  C.  &*  A. 
P.  Co.v. Brunswick  County  Com'rs,  72  A'.  Car. 
10.— Approved  in  Wilmington  R.  Bridge 
Co.  V.  New  Hanover  County  Com'rs,  72  N. 
Car.  15  ;  Richmond  &  D.  R.  Co.  v.  Orange 
County  Com'rs,  74  N.  Car.  506.  Followed 
in  Richmond  &  D.  R.  Co.  v.  Brogden,  74  N. 
Car.  707. 

A  franchise  is  property;  and  the  fran- 
chise of  a  railroad  corporation  should  be 
assessed  for  taxation  separately  and  apart 
from  its  other  property,  and  without  taking 
such  other  property  into  consideration. 
Pichmond  &*  D.  P.  Co.  v.  Brogden,  74  N, 
Car.  707,  13  ^/«.  Py.  Pep.  114.— Quoting 
Wilmington  R.  Co.  v.  Reid.  13  Wall.  (U. 
S.)  264. 

The  general  assembly  has  no  right  to 
confer  upon  the  governor,  treasurer,  and 
auditor  the  power  to  value  the  tangible, 
real,  and  personal  property  of  a  railroad 
corporation ;  such  power  is  vested  by  the 
Constitution  in  the  township  board  of 
trustees  alone,  and  cannot  be  taken  from 
them.  Pichmond  6*  D.  P.  Co.  v.  Brcgden, 
74  A';  Car.  707,  13  Am,  Py.  Pep.  1 14.— FoL- 
LOWING  Wilmington,  C.  &  A.  R.  Co.  v. 
Brunswick  County  Com'rs,  72  N.  Car.  10 ; 
Richmond  &  D.  R.  Co.  v.  Orange  County 
Com'rs,  74  N.  Car.  506. 

In  revising  the  tax  lists  the  commissioners 
of  a  county,  ex  tnero  motu,  at  their  August 
meeting,  increased  the  valuation  put  upon 
the  property  of  a  company  and  then  caused 


1  i 


TAXATION,  278-280. 


977 


izceed  six  per 
six  per  cent,  in 
lature  did  not 
r  1891,  when  a 
the  preceding 
at  as  the  right 
arter  contract, 
rred  from  im- 
that  the  com- 
s  business,  as 
the  year  1889, 
)parent  laches 

State  ex  ret, 
■>//.  Rep.  450. 
;ible  real  and 
iration,  as  dis- 
,  is  vested  by 
ihip  boards  of 
:apable  of  val- 
rty  which  the 
own;  and  a 
es  not  neces- 
luation  of  the 
^ton,  €.&>  A. 
'rs,  72  A^.  Car. 
in  R.  Bridge 
Com'rs,  72  N. 
Co.  V.  Orange 

Followed 
irogden,  74  N. 

ind  the  fran- 
co should  be 
:ly  and  apart 
ithout  taking 
onsideration. 
ogden,  74  N. 
|..— Quoting 
13  Wall.  (U. 

no  right  to 
easurer,  and 
he  tangible, 
f  a  railroad 
;sied  by  the 
ip  board  of 
I  taken  from  ■ 
.  V.  Brogden, 
M14.— FoL- 
.  R.  Co.  V. 
N.  Car.  10; 
inge  County 

mmissioners 
;heir  August 
>n  put  upon 
then  caused 


notice  to  be  served  upon  the  company  to 
appear  at  their  September  meeting  and  show 
cause  why  the  same  should  not  be  lixed  at 
the  increased  sum.  Held,  that  the  notice 
was  sufficient  and  the  action  of  the  board 
warranted  in  law.  Cleaveland  County  Com'rs 
V.  Atlanta  &*  C.  A.  L.  R.  Co.,  13  Am.  <S-  Eftg^. 
R.  Cas.  266,  86  TV.  Car.  541. 

The  penalty  prescribed  by  the  Code,  § 
i960,  against  corporations  for  failure  to 
make  the  returns  required  by  the  preceding 
section  can  only  be  recovered  in  an  action 
brought  by  the  state.  A  private  relator 
cannot  maintain  the  action.  State  ex  rel.  v. 
Marietta  &*N.  G.  R.  Co.,  108  N.  Car.  24,  12 
S.  E.  Rep.  1 04 1. —Doubting  Katzen stein  v. 
Raleigh  &  G.  R.  Co.,  84  N.  Car.  688. 

A  tax  is  a  "  debt "  which  the  state  and 
county  may  enforce  against  a  corporation 
by  creditors'  bill  for  the  appointment  of  a 
receiver.  The  state  and  county  are  not  pre- 
cluded from  bringing  such  a  suit  because 
there  is  a  specific  remedy  for  the  collection 
of  taxes  in  the  revenue  act ;  nor  because  the 
state  has  the  right  to  have  the  charter  of 
the  corporation  declared  forfeited  when  it 
fails  to  pay  its  taxes.  State  v.  Georgia  Co., 
54  Am.  Sf*  Eng.  R.  Cas.  299,  11 2  A';  Car.  34, 
17  S.  E.  Rep.  10. 

278.  Ohio. — The  provisions  of  the  one- 
mile  assessment  pike  law,  together  with  the 
statutes  that  prescribe  tlie  duties  of  county 
auditors  in  this  state,  afford  sufficient  means 
for  such  officers  to  ascertain  what  personal 
property,  and  what  property  of  a  railroad 
company,  is  properly  taxable  in  a  taxing  dis- 
trict created  pursuant  to  the  .aw.  New 
York,  L.  E.  &>  IV.  R.  Co.  v.  Marion  County 
Com'rs,  48  0/tio  St.  249,  27  A^.  E.  Rep.  548. 

Where  a  track  runs  through  a  taxing 
r'istrict  created  under  the  one-mile  as- 
sessment pike  law  (Rev.  St.  ch.  7,  tit.  7), 
:>.  is  subject  to  taxation  in  such  district  in 
t ."  proportion  that  the  mileage  of  its  track 
therein  bears  to  its  whole  track,  according 
to  the  rules  for  taxing  railroads  in  this 
state  prescribed  by  Rev.  St.  §§  2770-2776. 
Nezv  York,  L.  E.  &*  W.  R.  Co.  v.  Marion 
County  Com'rs,  48  Ohio  St.  249,  27  N.  E. 
Rep.  548. 

270.  Oregou.— After  the  assessment  of 
all  the  taxable  property  has  been  made  and 
returned,  and  a  tax  levied  thereon,  the  com- 
mon council  of  a  city  has  no  power  to  order 
an  additional  assessment  to  be  made  of  prop- 
erty subsequently  coming  within  the  city 
limita,  but  persons  not  previously  taxed  or 
7  D.  R.  D.— 63 


assessed  who  shall  commence,  subsequently 
to  the  levying  of  the  taxes,  to  sell  and  barter 
goods  may  be  assessed.  Oregon  Steam 
Nav.  Co.  V.  Portland,  2  Oreg.  81. 

Under  the  laws  of  Oregon  there  are,  for 
the  purpose  of  assessment  and  taxation,  but 
three  kinds  of  real  property  ;  by  this  classi- 
fication the  state  board  of  equalization  is 
bound,  and  cannot,  either  on  the  basis  of 
present  ownership,  source  of  title,  or  other- 
wise, change  the  same  so  as  to  add  new  kinds, 
or  to  increase  the  assessments  of  individuals 
or  classes  of  people  holding  lands  of  the 
kinds  thus  invented.  The  board  has  no  au- 
thority to  classify  railroad  lands  and  tracks 
and  change  their  valuation  separately,  but 
can  only  change  the  aggregate  valuation  of 
the  class  to  which  they  belong.  Oregon  &* 
C.  R.  Co.  V.  Croisan,  54  Am.  &*  Eng.  R,  Cas. 
312,  22  Oreg.  393,  30  Pac.  Rep.  219. 

Under  the  Act  of  1891  (Sess.  Laws,  124), 
the  actual  value  of  a  railroad  is  the  correct 
basis  for  taxation,  and  not  the  bonded  in- 
debtedness, capital  stock,  and  current  in- 
debtedness. State  V.  Southern  Pac.  Co.,  $$ 
Am.  &>  Eng.  R.  Cas.  539,  23  Or^.  424,  31 
Pac.  Rep.  960. 

A  law  authorizing  a  tax  collector  to  add 
to  the  tax  roll  property  omitted  therefrom 
by  the  assessor,  without  notice  to  the  owner, 
is  not  unconstitutional  where  there  is  an 
equalization  board  with  power  to  correct 
the  assessment  rolls,  when  the  time  of  its 
meeting  is  fixed  by  statute  and  the  owner 
may  appear  and  be  heard.  So  held,  in  a  pro- 
ceeding by  a  company  to  enjoin  a  tax  col- 
lector from  selling  its  lands  so  listed  without 
notice  to  the  company.  Oregon  &•  C.  R.  Co. 
V.  Lane  County,  23  Oreg,  386,  31  Pac.  Rep. 
964.— Quoting  Railroad  Tax  Cases,  13  Fed. 
Rep.  766. 

280.  Pennsylvania.  —  The  dividends 
of  passenger-railway  companies  are  distrib- 
utable to  paid  stock,  and  are  liable  for  city 
taxes;  and  the  annual  official  reports  made 
to  the  aaditor-general  of  the  state  by  the 
company  are  the  best  evidence  of  the 
amount  of  such  stock.  Citizens  Pass.  R. 
Co.  V.  Philadelphia,  j^g  Pa.  St.  251.  —  Fol- 
lowed IN  Second  &  T.  St.  Pass.  R.  Co.  v. 
Philadelphia,  51  Pa.  St.  465;  Philadelphia 
V.  Ridge  Ave.  Pass.  R.  Co.,  102  Pa.  St.  190. 

A  company  was  bound  by  its  charter  to 
pay  to  the  city  on  the  excess  of  dividends 
above  six  per  cent,  per  annum.  Held,  that 
the  basis  on  which  the  estimate  of  tax  was 
to  be  made  was  the  capital  actually  paid  in, 


978 


TAXATION,  280. 


ij  ? 


1.1 


not  the  cost  of  the  road  nor  the  authorized 
capital.  Second  <S-  T.  Si.  Pass.  Ji.  Co.  v. 
Philadelphia,  51  Pa.  St.  465.— Following 
Citizens'  Pass.  R.  Co.  v.  Philadelphia,  49  Pa. 
St.  251.  —  Followed  in  Philadelphia  v. 
Ridge  Ave.  Pass.  R.  Co.,  102  Pa.  St.  190. 

It  is  the  right  of  financial  officers  of  a  cor- 
poration to  retain  the  three-mill  tax  under 
the  Act  of  April  29,  1844,  without  assess- 
ment by  the  county  officers.  The  tax  laws 
prior  to  the  Act  of  April  30, 1864.  imposed  a 
tax  on  corporation  bonds  in  the  hands  of 
non-residents.  Delaware,  L.  &•  IV.  P.  Co. 
V.  Com.,  66  Pa.  St.  64.— Reviewed  in  Com. 
r.  Lehigh  Valley  R.Co.,  16  Phila.  (Pa.)  584. 

Pennsylvania  Act  of  June  7,  1879,  after 
providing  for  the  taxation  of  certain  cor- 
porations, provides  for  a  tax  on  dividends 
declared  by  any  company  or  association 
during  the  year  ending  with  the  first  Mon- 
day of  November,  and  where  no  dividends 
have  been  declared,  requires  a  report  of  the 
appraised  value  of  capital  stock  between 
the  1st  and  15th  days  of  November  of  each 
year,  //eld,  that  stock  is  to  be  valued  by  its 
selling  price  between  the  ist  and  15th  of 
November,  and  not  by  the  average  sales 
during  the  year.  Pennsylvania  R,  Co.  v. 
Com.,  94  Pa.  St.  474. 

Under  the  laws  for  the  taxation  of  cor- 
poration indebtedness  or  loans,  the  return 
by  the  corporation  of  the  amount  of  its  in- 
debtedness does  not  constitute  an  assess- 
ment. Neither  does  the  account  settled  by 
the  auditor-general  against  the  corporation. 
A  valid  assessment  must  precede  the  collec- 
tion of  the  tax,  and  the  owner  of  the  prop- 
erty, to  wit,  the  bonds  and  mortgages,  etc., 
must  have  notice  and  the  right  of  appeal. 
Com.  V.  Leh^h  Valley  R.  Co.,  13  Am.  &* 
Eng.  R.  Cas.  347,  104  Pa.  St.  89. 

Railroad  grounds  on  which  are  laid  tracks 
used  as  approaches  to  stations  and  other 
buildings  used  in  connection  with  the  busi- 
ness of  the  railroad,  together  with  freight 
and  passenger  stations,  offices,  roundhouses, 
machine  shops,  and  all  public  works  of  the 
company,  with  their  necessary  appliances, 
are  taxable  as  personalty.  Northumberland 
County  V.  Philadelphia  &•  E.  R.  Co.,  (Pa.)  9 
Atl.  Rep.  504.  — Approving  Pennsylvania 
R.  Co.  V.  Pittsburgh,  104  Pa.  St.  522. 

The  Revenue  Act  of  1879,  §  2,  provides 
that  the  secretary  and  treasurer  of  any  cor- 
poration which  has  declared  no  dividends 
•hall  in  each  year,  between  November  ist 
and  1 5th,  appraise  its  capital  stock  at  its  cash 


value,  at  not  less  than  an  average  price  for 
which  it  was  sold  during  the  year,  for  the 
purposes  of  taxation.  Held,  that  the  average 
price  of  stock  between  these  dates  is  not 
conclusive  as  to  its  value.  So  where  a  com- 
pany was  in  the  hands  of  receivers  pending 
a  foreclosure,  and  the  value  of  its  stock 
depended  upon  the  success  or  failure  of  cer- 
tain plans  for  the  reorganization  of  the  com- 
pany, the  average  price  of  stock  between  the 
above  dates  was  held  not  conclusive.  Com. 
v.  Philadelphia  &>  R.  R.  Co.,  (Pa.)  22  At/. 
Rep.  235.— Distinguishing  Pennsylvania 
R.  Co.  V.  Com.,  94  Pa.  St.  474.  Quoting 
Com.  V.  Lehigh  Valley  R.  Co.,  37  Leg. 
Int.  407. 

When  a  corporation  is  in  the  hands  of  re- 
ceivers, and  its  treasurer  is  also  treasurer  of 
the  receivers,  it  is  clearly  the  duty  of  the 
treasurer,  undev  the  act  of  1885,  to  assess 
the  tax  upon  the  company's  bonds,  on  pay- 
ment by  the  receivers  of  interest  thereon. 
Com.  V.  Philadelphia  <S-  A'.  C  <&*  /.  Co.,  137 
Pa.  St.  481,  20  Atl.  /iep.  531,  580. 

If  such  assessment  were  made  by  the 
treasurer,  it  would  be  the  duty  of  the  re- 
ceivers to  pay  the  tax  to  the  common- 
wealth; and  if  he  make  default  in  the  as- 
sessment, the  corporation  is  liable  therefor, 
and  an  account  for  the  tax  may  properly  be 
settled  against  it.  Com.  v.  Philadelphia  &* 
R.  C.  6-  /.  Co.,  137  Pa.  St.  481,  20  Atl.  Rep. 
531.  580. 

Under  the  Act  of  May  24,  1878,  the  pow- 
ers of  the  board  of  revenue  commissioners 
are  limited  to  the  equalization  uf  tlie  valua- 
tion of  property  taxable  for  state  purposes, 
and  it  has  no  authority  where  a  county  has 
been  divided  to  apportion  a  credit  allowed 
by  the  commonwealth  to  the  old  county  and 
transfer  a  part  of  it  to  the  new  county. 
Lackawanna  County  v.  Com.,  1 56  Pa.  St.  477, 
26  Atl.  Rep.  1 119. 

A  proper  basis  of  assessment  to  ascertain 
the  proportion  of  property  upon  which  the 
Pullman  Palace  Car  Company,  incorpo- 
rated under  laws  of  another  state,  should 
be  taxed,  is  such  proportion  of  the  capital 
stock  of  the  company  as  the  number  of 
miles  over  which  it  runs  cars  within  this 
state  bears  to  the  whole  number  of  miles  in 
this  and  other  states  over  which  its  cars 
are  run.  Com.  v.  Pullman  Palace  Car  Co.,  2 
Pa.  Dist.  618.— Following  Pullman  Palace 
Car  Co.  V.  Com.,  107  Pa.  St.  156. 

Such  part  of  the  line  and  ground  of  a  rail- 
road as  can  be  acquired  under  the  statute 


TAXATION,  281,  282. 


979 


irage  price  for 
;  year,  for  the 
lat  the  average 

dates  is  not 
where  a  com- 
ivers  pending 

of  its  stock 
failure  of  cer- 
on  of  the  com- 
ic between  the 
:lu9ive.    Com. 

{Pa.)  22  Atl. 

Pennsylvania 

74.   Quoting 

Co.,  37  Leg. 

e  hands  of  re- 
io  treasurer  of 
e  duty  of  the 
885,  to  assess 
onds,  on  pay- 
rest  thereon. 
<S-  /.  Co.,  137 
80. 

made  by  the 
ity  of  the  re- 
Lhe  common- 
lilt  in  the  as- 
able  therefor, 
ly  properly  be 
hiladelphia  &• 
,  20  Atl.  Rep. 

878,  the  pow- 
ommissioners 

of  the  valua- 
;ate  purposes, 
:  a  county  has 
red  it  allowed 
Id  county  and 

new  county. 
56  Pa.  St.  477. 

t  to  ascertain 
on  which  the 
iny,  incorpo- 
state,  should 
>f  the  capital 
le  number  of 
s  within  this 
er  of  miles  in 
hich  its  cars 
^ace  Car  Co.,  2 
illman  Palace 
56. 

>und  of  a  rail- 
er  the  statute 


at  right  of  way,  with  the  structures,  includ- 
ing houses  for  trackmen,  thereon,  immedi- 
ately necessary  for  the  corporate  franchises, 
and  offices  of  superintendents  and  assist- 
ants on  same  lot,  with  depot  and  reasonable 
approaches  between  them,  are  not  taxable 
as  real  estate.  Appeal  of  Western  Pa.  R. 
Co.,  18  Phila.  {Pa.)  614.— QUOTING  Penn- 
sylvania R.  Co.  V.  Pittsburgh,  104  Pa.  St. 
540;  Cumberland  Valley  R.  Co.  v.  McLana- 
han,  59  Pa.  St.  29.  • 

281.  South  Dakota.  — The  Organic 
Act  of  the  territory  of  Dakota  provides 
that  "  all  property  subject  to  taxation  shall 
be  taxed  in  proportion  to  its  value."  Held, 
that  this  limitation  has  no  application  to 
assessments  for  local  municipal  improve- 
ments, but  only  relates  to  general  territo- 
rial, county,  and  municipal  taxes,  levied  to 
defray  the  ordinary  expenses  of  the  govern- 
ment. Winona  &*  St.  P.  R.  Co.  v.  Water- 
town,  I  S.  Dak.  46,  44  N.  W.  Rep.  1072.— 
Reviewing  Neustadt  v.  Illinois  C.  R.  Co., 
31  111.  484. 

An  assessment  for  improving  an  avenue 
in  a  city  was  apportioned  oit  the  property  of 
plaintiff,  as  well  as  all  other  property  abut- 
ting on  said  avenue,  along  the  line  of  the 
same,  at  a  fixed  sum  per  front  foot.  Held, 
that  such  an  apportionment  is  not  repug- 
nant to  or  in  conflict  with  the  Organic  Act 
of  the  territory,  and  was  a  proper  exercise 
of  the  power  of  the  city  under  its  charter, 
and  therefore  legal  and  valid.  Winona  &* 
St.  P.  R.  Co.  V.  Watertown,  i  S.  Dak.  46, 
44  N.  W.  Rep.  1072. 

282.  Tennessee.  —  (I)  Under  Act  of 
1873. — A  county  assessment  of  a  railroad 
for  taxation,  by  estimating  the  value  of  the 
whole  road,  in  the  state  and  out  of  it,  in- 
cluding rolling  stock,  equipments,  and  build- 
ings, and  then  taking  the  average  value  per 
mile  and  multiplying  by  the  number  of 
miles  in  the  county,  is  not  objectionable. 
Louisville  &*  N.  R.  Co.  v.  State,  8  Heisk. 
{Tenn.)  663, 19  Am.  Ry.  Rep.  107.— Criti- 
cising Sangamon  &  M.  R.  Co.  v.  Morgan 
County,  14  III.  163.  Reviewing  Farmers' 
L.  &  T.  Co.  V.  hendrickson,  25  Barb.  (N.  Y.) 
484.  Reviewed  in  State  v.  Memphis  &  C. 
R.  Co.,  14  Lea  (Tenn.)  56. 

A  railroad  is  not  to  be  estimated  as  so 
much  land  used  for  farming  purposes,  but 
according  to  its  value  as  a  railway.  Louis- 
ville &*  N.  R.  Co.  V.  State,  8  Heisk.  { Tenn.) 
663,  19  Am.  Ry.  Rep.  107.— APPLYING  Peo- 
ple ex  rel,  v.  Barker.  4I  If .  Y.  70,  a  Am.  Ry. 


Rep.  149;  People  v.  Fredericks,  48  Barb. 
173.  Reviewing  State  v.  Illinois  C.  R.  Co., 
27  III.  64. 

There  are  four  elements  of  property  in  all 
joint  stock  companies  to  be  considered  in 
estimating  the  same  for  taxation:  (t)  the 
capital  stock ;  (2)  the  corporate  property ; 
(3)  the  franchise ;  (4)  the  individual  stock  ot 
the  stockholders.  Louisville  &»  N.  R.  Co. 
V.  State.  8  Heisk.  {Tenn.)  663,  19  Am.  Ry. 
Rep.  107.— Overruled  in  Mayor,  etc.,  of 
Chattanooga  v.  Nashville,  C.  &  St.  L.  R. 
Co.,  7  Lea  (Tenn.)  561. 

The  provision  for  separate  assessments  of 
the  property  in  each  civil  district,  by  the 
several  district  assessors,  does  not  prevent 
the  county  judge  or  other  officer  required 
to  assess  property  omitted  from  assessing, 
in  gross,  property  of  the  same  taxpayer,  in 
this  instance  a  railroad,  extending  through 
several  districts.  Louisville  &*  N.  R.  Co.  v. 
State,  8  Heisk.  {Tenn.)  663,  19  Am.  Ry. 
Rep.  107. 

The  assessment  of  property  is  not  subject 
to  any  exact  standard,  and  that  of  the  as* 
sessors  appointed  by  law  is  to  be  presumed 
correct  until  the  contrary  appears.  Louis- 
ville <S-  N.  R.  Co.  V.  State,  8  Heisk.  {Tenn.) 
663,  19  Am.  Ry.  Rep.  107. 

Code,  §  488,  which  provides  that  "the 
rate  of  taxation  for  county  purposes  shall 
not  exceed  the  rate  of  state  taxation  for  the 
time  being,"  prohibits  the  counties,  after 
making  a  levy  for  general  county  purposes 
equal  to  the  rate  of  state  taxation,  to  make 
additional  levy  for  special  purposes,  unless 
specially  authorized  by  law.  County  pur- 
poses are  such  charges  in  the  way  of  ex- 
penditures as  are  fixed  by  law  upon  the 
counties,  and  appertain  to  the  general  ad- 
ministration of  county  affairs.  The  expense 
of  keeping  up  bridges,  being  a  duty  imposed 
upon  the  county,  is  included  in  the  tax  for 
general  county  purposes,  and  a  special 
bridge  tax  is  therefore  unauthorized.  But 
a  special  tax  may  be  levied  'o  meet  a  special 
burden  imposed  on  the  county  by  the  legis- 
lature, or  when  that  body  specially  author- 
izes the  county  courts  to  levy  such  tax— as 
under  the  Act  of  1873,  %  39,  where  an  "addi- 
tional school  tax  "  is  allowed,  not  to  be  in- 
cluded in  the  assessment  for  general  county 
purposes.  Counties  may  levy  a  tax  equal  to 
the  state  tax  for  school  purposes,  although 
a  levy  has  been  made  for  general  county 
purposes.  The  legislature  has  so  authorized. 
NasAvOU,  C.  &»  St,  L,  R,  Co,  v.  Franklin 


980 


TAXATION,  282. 


m 


i-"' 


V!'  !  ■ 


ni 


:'i;i 


iiii 


Hi 


County,  7  Am.  &*  Etig.  R.  Cas.  258,  5  i>(i 
(7V«ff.)  707.— Overruled  in  part  in  Nash- 
ville, C.  &  St.  L.  R.  Co.  V.  Hodges,  7  Lea  663. 

(2)  Under  Act  0/1&7S.— The  Act  of  March 
20, 187s,  providing  for  aggregating  the  value 
of  railroad  property,  and  dividing  the  same 
by  the  number  of  miles  in  the  road,  and 
multiplying  the  result  by  the  number  of 
miles  of  road  in  any  county  or  municipal 
corporation,  for  the  purpose  of  taxation,  is 
in  conflict  with  that  provision  of  thf;  st?  " 
Constitution  requiring  taxation    o  be 

and  uniform  throughout  the  state,  nn  . 
viding  that  no  species  of  property  si.uh  ue 
taxed  higher  than  any  other  species  of  orop- 
erty  of  the  same  value.  Mayor,  etc.,  oj  Chat- 
tanooga V.  Nashville,  C.  &*  St.  L.  R.  Co.,  7 
Lea  (Tenn.)  $61.— Overruling  Louisville 
&  N.  R.  Co.  V.  State,  8  Heisk.  663.— Quoted 
IN  Franklin  County  v.  Nashville,  C.  &  St. 
L.  R.  Co.,  12  Lea  521.  Reviewed  in  State 
V.  Memphis  &  C.  R.  Co.,  14  Lea  56. 

The  act  further  provides  that  "  from  the 
aggregate  value  is  to  be  deducted  the  real 
cash  value  of  individual  shares."  The  con- 
stitutional mandate  that  "  all  property  shall 
be  taxed "  prevents  the  legislature  from 
granting  any  exemption  whatsoever,  no 
matter  what  the  consideration.  The  grant 
of  the  exemption  is  unconstitutional  and 
void.  Mayor,  etc.,  of  Chattanooga  v.  Nash- 
ville, C.  &*  St.  L.  R.  Co.,  7  Lea  ( Tenn.)  561. 
— Overruling  Louisville  &  N.  R.  Co.  v. 
State,  8  Heisk.  663.  Quoting. Memphis  & 
C.  R.  Co.  V.  Gaines,  3  Tenn.  Ch.  611. 

Taxes  authorized  to  be  assessed  for  a 
special  purpose,  as  for  the  construction  of 
public  bridges,  are  not  included  in  comput- 
ing the  maximum  rate  at  which  taxes  may 
be  assessed  for  county  purposes.  Nashville, 
C.  **  St.  L,  R.  Co.  V.  Hodges,  7  Lea  ( Tenn.) 
663.— Overruling  in  part  Nashville,  C.  & 
St.  L.  R.  Co.  V.  Franklin  County,  5  Lea  711. 

A  board  of  railroad  tax  assessors  ap- 
pointed by  the  state  was  proceeding  under 
an  imperative  statute  to  assess  several  rail- 
road companies  for  state  and  local  taxation, 
the  roads  extending  through  a  number  of 
counties,  and  whose  charters  contained  cer- 
tain exemptions  from  taxation.  Held,  that 
the  companies  were  entitled  to  a  temporary 
injunction  until  the  questions  involved 
could  be  heard  and  determined.  Memphis 
&*  C.  R.  Co.  V.  Gaines,  3  Tenn.  Ch.  478. 

(3)  Under  amendments  of  1877, 1879, 1881, 
i88a,  and  1883. — Under  Tenn.  Constitution 
the  mod*  of  ascertaining  the  value  of  par- 


ticular kinds  of  property  for  taxation  is  left 
to  the  discretion  of  the  legislature,  and  that 
body  may  adopt  a  mode  of  assessment  by 
assessors  for  the  state  at  large,  and  such  a 
mode  for  ascertaining  the  value  of  the  fran- 
chise, roadway,  rolling  stock,  and  other 
property  not  having  a  local  situs,  of  a  rail- 
road company  is  eminently  proper.  Frank- 
lin  County  v.  Nashville,  C.  6-  St.  L.  R.  Co., 
17  Am.  &•  Eng.  R.  Cas.  445,  12  Lea  ( Tenn.) 
521. — Quoting  Mayor,  etc.,  of  Chattanooga 
V.  Nashville,  C.  &  St.  L.  R.  Co.,  7  Lea  566. 

No  better  mode  of  determining  the  value 
of  the  portion  of  the  roadway  of  a  company 
in  any  one  county  for  taxation,  and  of  the 
valoe  of  the  franchise,  rolling  stock,  and 
3thc.  (..ciperty  without  a  situs,  for  that  part 
of  '.lie  icad  v;,y,  has  been  devised  than  to 
ascertain  the  value  of  the  whole  road,  the 
whole  rolling  stock,  and  the  whole  of  the 
non-local  property,  and  apportioning  the 
value  for  county  taxation  by  the  relative 
length  of  the  road  within  the  county  to  the 
whole  length.  Franklin  County  v.  Nash- 
ville, C.  &*  St.  L.  R.  Co.,  17  Am.  &*  Eng.  R. 
Cas.  445,  12  £Ja  (Tenn.)  521.  — QUOTING 
State  R.  Tax  Cases,  92  U.  S.  608. 

The  Act  of  1875,  ch.  78,  and  the  acts 
amendatory  thereof,  which  provide  for  the 
appointment  of  a  board  of  state  assessors 
to  value  the  property  of  railroad  companies, 
and  a  revising  board  of  examiners,  are  so 
far  constitutional,  notwithstanding  some 
severable  unconstitutional  provisions  in  the 
earlier  acts,  that  assessments  under  them 
acquiesced  in  by  the  railroad  company  in 
paying,  and  by  a  county  in  receiving,  the 
county  tax  on  the  county's  proportional 
part  of  the  valuation,  are  binding,  when  it 
appears  that  the  county  has  received  a 
larger  amount  of  taxes  than  it  would  have 
been  entitled  to  upon  a  strictly  I^al  assess- 
ment. Franklin  County  v.  Nashville,  C.  6* 
St.  L.  R.  Co.,  17  Am.  &*  Eng.  R.  Cas.  445, 
12  Lta  {Tenn.)  521. 

The  Act  of  1879,  ch.  79,  authorizing  the 
tax  collectors  to  assess  all  property  which, 
by  mistake  of  law  or  fact,  has  not  been  as- 
sessed, applies  to  a  case  where  there  has 
been  a  failure  to  assess  at  all,  and  not  to  a 
case  where  the  property  has  already  been 
legally  assessed,  although  not  in  every  re- 
spect correctly.  Franklin  County  v.  Nash- 
ville, C.  &*  St.  L.  R.  Co.,  17  Am.  **  Eng.  R. 
Cat.  445,  12  Lea  (Tenn.)  521. 

If  the  board  of  railroad  assessors  does 
not  follow  the  provisions  of  the  statute,  its 


TAXATION,  282. 


981 


:ation  is  left 
ire.  and  that 
sessnient  by 
and  such  a 
of  the  fran- 
and    other 
M,  of  a  rail- 
per.    Frank- 
t.  L.  A'.  Co., 
Lea  (Tenn.) 
Chattanooga 
,  7  Lea  566. 
ng  the  value 
'  a  company 
,  and  of  the 
stock,  and 
For  that  part 
sed  than  to 
le  road,  the 
'hole  of  the 
'tioning  the 
the  relative 
Junty  to  the 
ty  V.  Nash- 
.  &*  Eng.  R. 

—  Quoting 
8, 

id  the  acts 
iride  for  the 
te  assessors 

companies, 
ners,  are  so 
iding  some 
stons  in  the 
under  them 
:ompany  in 
:eiving,  the 
roportional 
ig,  when  it 

received  a 
would  have 
igal  assess- 
wilU,  C.  &* 
V.  Cos.  445, 

irizing  the 
5rty  which, 
>t  been  as- 

there  has 
d  not  to  a 
eady  been 

every  re- 
y  v.  Nash- 
S*  Eng.  R. 

isors  does 
lUtute,  its 


action  it  subject  to  the  revisory  jurisdietion 
of  the  courts,  invoked  by  ctrtiorari.  Al- 
though the  boards  of  assessors  and  ex- 
aminers may  be  officers  of  the  state, 
and  proposing  to  discharge  their  duties 
as  such,  yet  if  they  overleap  the  pre- 
scribed limits  of  the  law  under  which  tiiey 
act,  it  is  the  right  of  those  about  to  be  in- 
jured to  ask  for,  and  the  duty  of  the  courts 
to  grant,  restraining  relief ;  and  this  may  be 
done  by  petition  for  and  writs  of  certiorari 
and  supersedeas,  Louisville  <&*  N.  R.  Co,  v. 
Bate,  17  Am,  &*  Eng,  R,  Cas,  494,  i.  Lea 
(Tenn,)  573.— Followed  in  Louisville  &  N. 
R.  Co.  V.  Bate,  22  Fed.  Rep.  480. 

As  such  assessments  may  be  reviewed  by 
the  writ  of  certiorari  and  supersedeas  in  the 
state  court,  a  federal  court  will  not  grant  an 
injunction.  Louisville  &*  N,  R,  Co,  v.  Bate, 
22  Fed.  Rep,  480.— Following  Louisville  & 
N.  R.  Co.  V.  Bate,  12  Lea  (Tenn.)  573. 

The  Tenn.  statutes  require  that  all  proof 
be  reduced  to  writing,  sworn  to  and  sub- 
scribed, etc.  If  the  assessors  base  their 
estimates  of  value  upon  their  personal 
knowledge  formed  from  inspection  and  ex- 
amination, which  they  may  do.  like  all  other 
testimony  it  should  be  reduced  to  writing, 
and  an  opportunity  to  cross-examine  allowed 
the  railroad.  Louisville  &»  N,  R,  Co.  v.  Bate, 
17  Am,&'Et^,  R,  Cas,  494, 1 2  Lea  ( Tenn,)  573. 

The  assessors  should  assess  separately 
each  railroad  owned  by  a  company.  The 
fact  that  the  company  buys  or  leases  a  road 
in  continuation,  or  rather  in  extension,  of 
the  original  line,  can  make  no  difference. 
The  main  stem,  roads  bought  or  leased,  and 
branches  should  be  separately  assessed,  and 
counties  through  which  branches  run  are 
only  entitled  to  the  tax  on  the  branches  ac- 
cording to  their  respective  values.  Louis- 
ville &*  N.  R.  Co,  V.  Bate,  17  Am.  &*  Ettg. 
R.  Cas.  494,  12  Lea  (Tenn.)  573. 

The  roadbed,  franchise,  and  superstruc- 
ture of  railroads  are  so  essentially  inter- 
mingled, and  each  so  indispensable  to  the 
value  of  the  others,  that  they  should  be  as- 
sessed together.  Louisville  &*  N.  R.  Co,  v. 
Bate,  17  Am.  &*  Eng.  R,  Cas.  494,  12  Lea 
(Tenn.)  573. 

The  mandate  of  the  statute  requiring  as- 
sessors to  assess  rolling  stock  and  other  dis- 
tributable property  of  a  company  separately 
from  its  other  property  implies  an  authority 
to  value  it  together  as  a  whole.  Louisville 
6*  N,  R,  Co.  V.  Bate,  17  Am,  &*  Eng,  R,  Cas. 
494.  12  L*a  (Tenn,)  573. 


Under  the  Act  of  1879,  ch.  79.  property 
should  be  assessed  at  its  value  on  Jan.  10 
of  each  year.  It  seems  that  if  property 
changes  liands  after  that  date  an  assessment 
in  the  name  of  the  subsequent  owner  would 
be  valid  and  fix  a  lien  on  the  property. 
Chesapeake,  0,  <S-  S.  R.  Co.  v.  State,  13  Lea 
(Tenn,)  348. 

Railroad  property  is  liable  for  highway 
taxes  upon  its  assessed  value  as  returned  by 
the  commissioners.  Whether  the  proper 
distribution  of  the  taxes  among  the  road 
districts  has  been  made  is  a  matter  for  the 
districts,  and  not  for  the  company,  to  de- 
termine.  State  v.  Cincinnati,  N,  O,  &*  T, 
P,  R.  Co.,  11  Lea  (Tenn.)  500. 

The  property  of  a  company  liable  to  taxa- 
tion for  years  previous  to  the  act  of  1875, 
which  first  created  a  state  board  of  assess- 
ors for  the  assessment  of  such  property, 
may  be  assessed  under  a  subsequent  act  of 
the  legislature  expressly  providing  for  its 
assessment  for  the  taxes  of  those  years. 
State  v.  Memphis  &*  C.  R.  Co.,  14  Lea 
(Tenn.)  56.— Reviewing  Louisville  &  IJ. 
R.  Co.  V.  State,  8  Heisk.  663;  Mayor,  etc., 
of  Chattanooga  v.  Nashville,  C.  &  St.  L.  R. 
Co.,  7  Lea  561. 

Under  the  acts  of  1879  ^^^  1883  making 
it  the  duty  of  all  collectors  of  taxes  to  as- 
sess omitted  property  the  comptroller  of 
the  state  is  the  proper  officer  to  make  the 
assessment  of  railroad  property.  Stat*  v. 
Memphis  &»  C.  R.  Co.,  14  Lea  (Tenn.)  56. 

Under  the  Act  of  1879,  ch.  79,  and  the 
subsequent  acts  amending  the  same,  the 
trustee  of  a  county  Is  the  proper  officer  to 
assess  railroad  property  for  county  taxation, 
where  the  same  has  been  omitted  by  the 
state  assessors;  and  where  his  assessment  is 
disputed  by  the  company,  the  assessment 
declared  by  the  chairman  of  the  county 
court  will  be  binding  when  properly  made. 
Chesapeake,  O.  <S-  S.  W.  R.  Co.  v.  Lauderdale 
County,  16  Lea  (Tenn.)  688. 

If  from  such  assessment  the  county  asks 
an  appeal  to  the  chairman  of  the  county 
court,  that  is  a  sufficient  proceeding,  under 
the  statute,  to  entitle  the  company  to  a  re> 
valuation  of  the  property  before  the  chair- 
man. And  if  the  trustee,  notwithstanding 
the  proceeding,  issue  a  distress  warrant,  or 
its  equivalent,  for  the  collection  of  the  taxes, 
the  company  may  take  the  case  into  the 
circuit  court  by  writs  of  certiorari AnA  super- 
sedeas, and  the  judgment  of  this  court  sus- 
taining the  assessment  but  quashing  the 


TAXATION,  288. 


;■(■ 
il  : 


'  '■■'-III* 


warrant  would  be  final,  requiring  no  remand 
of  the  cause,  and  only  a  procedendo  to  the 
chairman  of  the  county  court  to  mSTlce  the 
revaluation.  Shelby  County  v.  Mississippi 
&•  T.  R.  Co.,  1 6  Lea  {Tenn.)  401,  i  S.  W. 
Rep.  32. 

The  taxes  for  the  years  antedating  the 
act  of  1875  and  amendatory  acts  providing 
for  the  assessment  of  railroad  property  for 
purposes  of  taxation  by  a  board  of  state  as- 
sessors may  be  assessed  under  the  general 
revenue  laws  of  the  particular  years,  but  the 
company,  upon  the  revaluation  by  the  chair- 
man of  the  county  court,  may  furnish  all 
the  data  railroad  companies  are  required  to 
furnish  to  the  state  board.  Shelby  County  v. 
Mississippi  &*  T.  R.  Co.,  16  Lea  (7V/tff.)40i, 
I  S.  W.  Rep.  32. 

Bonds  issued  by  an  organized  and  going 
corporation  to  its  stockholders,  upon  a 
merely  colorable  consideration,  as  a  "  bond 
dividend,"  and  assessed  as  bonds  for  taxa- 
tion, are  to  be  treated,  in  determining  valid- 
ity of  assessment,  as  bonds  and  not  as 
stock  shares.  South  Nashville  St.  R.  Co.  v. 
Morrow,  39  Am.  &»  Eng.  R.  Cas.  518,  87 
Tenn.  406,  2  L.  R.  A.  853,  1 1  5.  W.  Rep.  348. 

Assessment,  as  omitted  property,  of  the 
entire  amount  of  a  corporation's  bonds,  in 
a  single  item,  to  "  unknown  owners,"  with- 
out notice  to  any  holders  of  the  bonds,  or 
their  agents  or  representatives,  is  void.  The 
corporation  is  not,  for  this  purpose,  to  be 
deemed,  under  the  Act  of  1887,  ch.  2,  §  24, 
the  "agent"  or  "representative"  of  its 
bondholders.  Souil  Nashville  St.  R.  Co.  v. 
Morrow,  39  Am.  &»  Eng.  R.  Cas.  518,  87 
Tenn.  406,  2  L.  R.  A.  853,  11  S.  W.  Rep.  348. 

Notice  to  a  corporation  is  sufficient,  under 
Act  of  1887,  ch.  2,  §  24,  for  assessment  of 
shares  of  stock  to  their  holders  as  omitted 
property,  but  not  as  to  like  assessment  of 
bonds  against  the  bondholders.  South 
Nashville  St.  R.  Co,  v.  Morrow,  39  Am.  &* 
Eng.  R.  Cas.  518,  87  Tenn.  406,  2  L.  R.  A. 
853,  II  5.  W.Rep.i\%. 

Statutes  authorizing  assessment  for  taxa* 
tion  of  property  omitted  from  the  regular 
assessment  are  valid  and  constitutional. 
South  Nashville  St.  R.  Co.  v.  Morrow,  39 
Am.  &*  Eng.  R.  Cas.  $18,  87  Tenn.  406,  2  L. 
R.  A.  8S3,  II  5.  W.  Rep.  348. 

The  proper  method  is  to  assess  a  street 
railroad  as  a  whole,  including,  as  elements 
of  value,  its  franchise,  right  of  way,  iron 
rails,  ties,  spikes,  etc. ;  but  an  assessment  of 
its  right  of  way  and  franchise,  as  a  separate 


item  from  its  other  property,  is  not  invalid. 
South  Nashville  St.  R.  Co.  v.  Morrow,  39 
Am.  &*  Eng.  R.  Cas.  $18,  87  Tenn.  406,  2 
L.  R.  A.  853,  i\  S.W.  Rep.  348. 

Right  of  way  acquired  by  a  street  railroad 
over  streets  of  a  city  is  an  easement  in  realty 
and  assessable  for  taxation  as  such.  South 
Nashville  St.  R.  Co.  v.  Morrow,  39  Am.  6* 
Eng.  R.  Cas.  $18,  87  Tenn.  406.  3  L.  R.  A. 
853,  II  S.  W.Rep.  348. 

Under  Tennessee  statutes  the  fact  that 
railroad  property  has  been  assessed  and  a 
tax  collected  under  an  unconstitutional 
statute  does  not  estop  the  municipality 
receiving  the  taxes  from  disputing  the  cor- 
rectness of  the  valuation  and  making  a 
net'  assessment.  Cincinnati  Southern  R. 
Co  V.  Guenther,  19  Fed.  Rep.  395. 

And  the  provision  of  the  statute  allow* 
ing  collectors  to  assess  property  which  has 
escaped  regular  assessment  by  mistake 
applies  to  railroad  property.  Cincinnati 
Southern  R.  Co.  v.  Guenther,  19  Fed.  Rep.  395. 

Where  railroad  property  has  been  inten- 
tionally assessed  at  an  exaggerated  value, 
which  renders  the  tax  unconstitutional,  the 
company  may  be  required  to  pay  the  tax 
justly  due  without  a  new  assessment.  Cin- 
cinnati Southern  R.  Co.  V.  Guenther,  19  Fed, 
Rep.  39$. 

283.  Texas.  — Where  a  special  tax  is 
levied,  no  special  assessment  of  the  taxable 
property  on  which  it  is  to  be  collected  is 
required  to  be  made.  Hall  v.  Houston  &» 
T.  C.  R.  Co.,  39  Tex.  286. 

The  state  board  of  equalization  created 
by  the  state  Constitution  has  the  power  to 
determine  the  value  of  railroad  property  for 
taxation  in  a  proper  case;  and  the  fact  that 
the  company  thinks  the  valuation  excessive 
does  not  give  to  it  the  right  to  resort  to 
court.  International  &*  G.  N.  R.  Co.  v. 
Smith  County,  7  Am.  &*  Eng.  R.  Cas.  263, 
54  TV*.  I.— Following  Houston  &  T.  C. 
R.  Co.  V.  Presidio  County,  53  Tex.  518. 

When  a  taxpayer  renders  his  tax  list  to 
the  assessor  in  person,  and,  after  answering 
all  questions  by  him,  subscribes  the  oath 
prescribed  by  the  statute,  if  the  assessor,  for 
cause  deemed  sufficient,  proceeds  then  and 
there  to  change  the  valuation,  and  the  tax- 
payer then  makes  oath  that  the  valuation  is 
excessive,  the  case  is  one  coming  within  the 
Act  of  1876,  §  17.  If,  however,  the  valua- 
tion be  forwarded  by  mail,  oath  being  made 
to  the  list,  out  of  the  county  in  which  it  is 
rendered,  before  some  other  officer,  the  cue 


n 


TAXATION,  284.287. 


983 


not  invalid. 

Morrow,  39 

Ttnn.  406,  9 

I. 

reet  railroad 

ent  in  realty 

luch.    South 

39  Am.  6* 
i.  a  L.  H.  A. 

le  fact  that 
eased  and  a 

tnstitutional 
nunicipality 
ng  the  cor- 
malcing  a 
South€rn  R. 

itute  allow- 
r  wiiich  has 
}y  mistake 
Cincinnati 
ed.Rep.yii. 
been  inten- 
rated  value, 
utional,  the 
lay  the  tax 
nent.  Cin- 
htr,  19  Ftd. 

ecial  tax  is 
the  taxable 
collected  is 
Houston  &* 

ion  created 
le  power  to 
>roperty  for 
le  fact  that 
n  excessive 
}  resort  to 

R.  Co.  V. 
?.  Cas.  263, 
in  4  T.  C. 
IX.  518. 
tax  list  to 

answering 
3  the  oath 
ssessor,  for 
s  then  and 
d  the  tax- 
'aluation  is 
within  the 
the  valua- 
•eing  made 
which  it  is 
:r,  the  case 


is  then  under  the  provisions  of  section  5.  and 
the  assessor,  if  dissatisfied,  is  neither  re- 
quired nor  empowered  to  affix  a  valuation, 
but  should  refer  the  same  to  the  board  of 
equalization.  If  not  forwarded  by  mail,  but 
conveyed  by  another  party,  it  would  still  be 
under  section  5.  International  &*  G.  N.  R. 
Co.  V.  Smith  County,  7  Am.  6*  Etig.  R.  Cat. 
263,  54  Tex,  I. 

The  acts  of  de  facto  deputy  assessors,  in 
raising  the  valuation  of  property  listed  for 
taxes,  are  not  rendered  invalid  because  they 
may  have  been  legally  disqualified  from 
acting  as  deputies  by  reason  of  their  hold- 
ing other  offices.  Texas  S-  P.  R.  Co.  v. 
Harrison  County,  54  Tex.  119. 

284.  Virginia.— The  Constitution,  art. 
9,  §  t,  provides  that  taxation  by  state, 
county,  or  corporate  bodies  shall  be  equal, 
uniform,  and  ad  valorem.  Held,  that  if  a 
county  levy  on  railroads  within  the  county 
be  of  ever  so  little  higher  rate  than  it  is  on 
other  property  in  the  county,  such  levy  vio- 
lates the  Constitution.  Shenandoah  Valley 
R.  Co.  V.  Clarke  County  Sup'rs,  78  Va.  269. 

286.  Wyoming.— The  Act  of  Dec.  13, 
1879,  entitled  "An  act  in  relation  to  the 
assessment  of  railways  and  telegraph  lines," 
only  refers  to  territorial  and  county  taxes, 
and  does  not  include  municipal  taxes. 
(Peck,  J.,  dissenting.)  Union Pac.  R.  Co,  v. 
Ryan,  2  tVyom.  408. 

The  property  of  railway  and  telegraph 
lines  within  the  limits  of  a  city  is  taxable 
in  the  same  manner  as  other  property  in 
the  city,  according  to  the  provisions  of  the 
city  charter.  Union  Pac.  R.  Co.  v.  Ryan,  2 
Wyom.  408. 

286.  Xew  Brunswick.  — Where  a 
company  neglects  to  furnish  to  the  assessors 
the  statement  for  taxation,  under  oath, 
required  by  52  Vict.  c.  27,  the  court  may  re- 
fuse to  review  the  assessment  by  certiorari. 
Ex  parte  Cram,  30  New  Brun.  545. 

▼III.  COILECTIOH. 
I.  In  General. 

287.  Statutory  scbemes  for  col- 
lection.—  Under  California  Constitution, 
prohibiting  the  enactment  of  special  laws 
for  the  collection  of  taxes,  the  scheme  for 
the  collection  of  taxes  on  railroads  situated 
in  two  or  more  counties  provided  by  the 
Pol.  Code,  §§  3665-3670,  which  differs  from 
that  found  in  the  general  law,  is  unconsti- 
tutional and  void.    People  v.  Central  Pac. 


R.  Co,,  41  Am.  &»  En£^.  R.  Cas,  653,  83  CaJ. 

393.  23  P<*c-  ^*P-  303- 

The  enactment  of  the  special  provisions 
for  the  collection  of  such  taxes  is  not 
authorized  by  the  provision  of  Cal.  Const, 
art.  13,  that  the  franchise,  roadbed,  and 
property  of  railroads  operated  in  more  than 
one  county  shall  be  assessed  by  the  state 
board  ofequalization,  and  that  the  legislature 
shall  pass  all  laws  necessary  to  carry  out  that 
provision,  it  being  applicable  only  to  assess- 
ments, and  not  to  the  levy  or  collection 
of  the  tax  on  the  property  when  assessed, 
and  conferring  no  power  upon  the  legisla- 
ture to  pass  special  laws  for  those  purposes. 
(Beatty,  C.J.,  and  Thornton,  J.,  dissenting.) 
People  V.  Central  Pac,  R,  Co.,  41  Am,  A- 
Eng,  R.  Cas.  653. 83  Cal.  393. 23  Pac.  Rep,  303. 

Kan.  Tax  Law  of  1876,  §  37,  which  provides 
for  the  collection  of  state  taxes  on  railroad 
property  in  the  unorganized  counties  of  the 
state,  is  not  in  conflict  with  the  provision  of 
the  Constitution  requiring  all  laws  of  a 
general  nature  to  have  a  uniform  operation 
throughout  the  state,  nor  with  the  provi- 
sion requiring  the  legislature  to  provide  for 
a  uniform  and  equal  rate  of  assessment  and 
taxation.  Francis  v.  Atchison,  T,  &-  S.  F. 
R.  Co.,  19  Kan.  303,  19  Am.  Ry.  Rep.  20. 

It  is  not  an  insuperable  objection  to  Mis- 
souri Act  of  March  10,  1871,  providing  for 
the  taxation  of  railroads,  that  it  designates 
no  particular  mode  by  which  cities  and 
towns  can  collect  the  taxes  from  the  roads 
under  the  valuation  made  by  the  state  board 
of  assessors.  Where  a  statute  creates  a 
right  and  gives  no  remedy,  the  usual  remedy 
is  applicable  to  the  case.  Stat*  ex  rel.  v. 
Severance,  55  Mo.  378. 

Pennsylvania  Act  of  April  34,  1874,  pro- 
viding for  the  taxation  of  corporations,  does 
not  repeal  section  4  of  the  General  Revenue 
Act  of  May  t,  1868,  establishing  a  tax  rate 
against  stocks ;  it  only  provides  additional 
security  for  the  payment  of  the  taxes.  In 
retaining  the  tax  from  dividends,  a  corpo- 
ration must  deduct  it  pro  rata  from  the 
dividends  on  old  preferred  stock,  as  well  as 
on  new.  Whelen  v.  Catawissa  R.  Co.,  9 
Phila,  (Pa,)  220. 

The  legislature  has  power  to  ~  enact  a 
change  in  the  method  of  collection  of  taxes 
which  were  assessed  and  levied  under  a 
former  law,  as  the  method  of  collection  is 
merely  a  matter  of  remedy  and  not  of  con< 
tract  right.  Spokane  County  v.  Northern 
Pac,  R,  Co,,  5  IVash.  89,  31  Pae.  Rep,  420. 


984 


TAXATION,  288,  289. 


!t^=- 


288.  Effect  of  repeal  of  tax  law. 

—A  statute  authorizing  the  laying  of  a  tax 
was  repealed  after  an  assessment  of  such 
tax,  but  before  its  collection.  Held,  that 
the  repeal  did  not  prevent  the  collection  of 
such  tax,  it  being  regulated  by  the  general 
tax  law,  which  remained  unrepealed ;  but 
that  a  penalty  of  twelve  per  cent,  on  failure 
to  pay  the  tax  could  not  be  collected  after 
the  repeal  of  the  statute,  the  rule  being  that 
the  assessment  of  the  tax  was  a  thing  passed 
and  completed,  and  could  not  be  affected 
by  the  repeal ;  contra,  with  respect  to  the 
penal  percentage.  Btlvidtri  v.  Warren  R. 
Co.,i\N.J.  L.  193. 

280.  Makinff  corporation  agrent 
for  collection.— Under  Pa.  Acts  of  1879 
and  1881,  imposing  a  stiite  tax  of  four  mills 
on  the  dollar  of  the  value  of  all  mort- 
gages, money  owned  by  solvent  debtors, 
etc.,  and  providing  that  corporations  pay- 
ing interest  on  loans  liable  for  state 
taxes  should  pay  into  the  state  treasury 
•aid  four-mill  tax,  and  deduct  the  same 
from  interest  on  such  loans — held,  that  such 
tax  is  not  upon  the  corporation  but  on  its 
indebtedness  in  the  hands  of  its  creditors, 
the  corporation  only  being  charged  with 
its  collection.  Therefore,  where  the  tax 
was  paid  through  other  agencies,  the  cor- 
poration is  not  chargeable  therewith.  Com. 
V.  Uhigh  Valley  R.  Co.,  13  Am.  4*  Etif.  R. 
Cos.  347.  104  Pa.  St.  89. 

It  is  competent  for  the  legislature  to  re- 
quire that  foreign  corporations  doing  busi- 
ness in  Pennsylvania  shall  become  respon- 
sible for  the  assessment  and  collection  of 
the  tax  imposed  by  law  upon  bonds  issued 
by  them  and  owned  by  residents  of  that 
•tate;  and  the  Act  of  June  30,  1885,  §  4, 
authorizes  a  tax  settlement  in  such  case. 
Com.  V.  Delaware  &•  H.  Canal  Co.,  150  Pa. 
St.  24s,  24  Atl.  Rep.  599. 

In  the  collection  of  the  tax  on  corporate 
loans  under  the  Act  of  1885,  the  corporation 
or  its  treasurer  is  merely  the  agent  or  in- 
strument of  collection  for  the  convenience 
of  the  state.  Com.  v.  Philadelphia  &*  R. 
R.  Co.,  150  Pa.  St.  312.  24  Atl.  Rep.  612. 

The  question  is  not  whether  the  company 
has  in  effect  and  through  its  agencies  paid 
the  interest,  but  whether  it  paid  at  such 
time  and  in  such  manner  that  the  treasurer 
could  perform  the  duty  imposed  upon  him 
by  the  Act  of  1885  of  deducting  the  tax 
from  each  shareholder's  interest,  or  whether 
the  omission  to  collect  the  tax  was  such  a 


default  as  to  make  the  company  directljr 
liable  for  the  amount.  Com.  v.  Philadel- 
phia  <S-  A".  R.  Co.  150  Pa.  St.  312,  24  Atl. 
Rep.  612. 

The  tax  of  five  per  cent,  out  of  dividends 
payable  by  a  bank,  railroad  company,  etc., 
is  a  tax  on  the  income  of  the  liolder  of  the 
stock,  and  only  differs  in  the  mode  of  col- 
lection from  other  income  tax.  The  cor- 
poration, under  the  Act  of  1864,  §§  120,  122, 
is  made  the  agent  of  the  government  for  its 
collection.  Philadelphia  &*  R.  R.  Co.  v. 
Barnes,  7  Phila.  (Pa.)  543.  —  Reviewing 
Jackson  v.  Northern  C.  R.Co.,  Chase's  Dec. 
(U.  S.)  268. 

Where  a  corporation  fails  to  pay  the  in- 
terest on  its  bonded  indebtedness,  and  is 
not  financially  able  (to  pay  the  same,  for  a 
current  year,  so  that  its  treasurer  could  not 
retain  from  the  bondholders  and  pay  over 
to  the  statti  treasurer  the  tax  due  on  its 
bonds  for  said  year,  but  did  assess  the 
amount  of  its  indebtedness  at  its  normal 
value  and  made  report  thereof  to  the  audi- 
tor-general in  due  form  within  the  time 
prescribed  by  law,  said  corporation  is  not 
liable  under  the  Act  of  June  30,  1885,  S  4. 
for  failure  to  retain  and  pay  over  said  tax. 
Com.  v.  Philadelphia,  N.  &•  N.  V.  R.  Co.,  2 
Pa.  Dist.  731.  —  Quoting  Com.  v.  Phila- 
delphia &  R.  R.  Co.,  150  Pa.  St.  312. 

That  another  corporation,  which  had 
guaranteed  saio  interest,  paid  the  same,  be- 
cause of  its  guaranty,  out  of  its  own  funds, 
without  connection  with  the  debtor  cor- 
poration, and  still  holds  the  coupons  for 
said  interest,  uncanceled,  unredeemed,  and 
uncollectible,  does  not  render  the  corpora- 
tion which  issued  such  bonds  and  coupons 
liable  for  the  state  tax  which  accrued  on 
such  bonds  during  the  year  on  which  in- 
terest was  thus  paid.  Com.  v.  Philadelphia, 
N.  &*  N.  Y.  R.  Co.,  2  Pa.  Dist.  731. 

A  statute  is  valid  which  requires  a  cor- 
poration to  retain  and  pay  out  of  dividends 
due  to  its  stockholders  the  tax  assessed 
against  them  upon  their  shares.  Such  is 
the  meaning  of  Tenn.  Act  of  1887,  ch.  2, 
§§  8-12.  South  Nashville  St.  R.  Co.  v.  Mor- 
row, 39  Am.  &>  Eng.  R.  Cas.  518,  87  Tenn. 
406,  2  L.  R.  A.  853.  II  5.  W.  Rep.  348. 

The  above  statute,  so  far  as  it  undertakes 
to  convert  corporations  into  agencies  for 
collection  of  taxes  laid  upon  their  bond- 
holders, is  so  faulty,  defective,  and  onerous 
to  corporations  that  it  is  void.  South 
Nashville  St.  R.  Co.  v.  Morrow,  39  Am.  &» 


\  !' 


TAXATION,  290-205. 


986 


any  directly 
V.  Philadtl- 
313,  24  Att. 

of  dividends 
mpany,  etc., 
older  of  the 
node  of  coi- 
The  cor- 
,  §§  120,  122, 
iment  for  its 
i".  R.  Co.  V. 
Reviewing 
Chase's  Dec. 

>  pay  the  in* 
ness,  and   is 

same,  for  a 
er  could  not 
nd  pay  over 

due  on  its 

assess    the 

its  normal 
to  the  audi- 
n  the  time 
ation  is  not 
(o,  1885.  S  4. 
er  said  tax. 

Y.  R.  Co.,  2 
m.  V.  Phila- 

312. 

which  had 
le  same,  be- 

own  funds, 
debtor  cor- 
coupons  for 
eemed,  and 
:he  corpora- 
md  coupons 
accrued  on 
n  which  in- 
hiladelphia, 
73'. 

u ires  a  cor- 
>f  dividends 
ax  assessed 
s.  Such  is 
1887,  ch.  2, 
Co,  V.  Mor- 
8.  87  Ttnn. 
'p.  348. 
undertakes 
gencies  for 
their  bond* 
nd  onerous 
id.  Sottth 
39  Am,  4« 


Bug.  X.  Cat.  S18,  87  TtHH,  406,  3  L.  R.  A; 
853.  II  5.  IV.  Rtp.  348. 

200.  Payment,  geuerally.  —  A  stat- 
ute imposed  a  tax  on  the  gross  earnings  of 
railroads,  one  half  payable  on  or  before  the 
I  jth  day  of  February,  and  one  half  on  or 
before  the  15th  day  of  August  in  each  year. 
A  company  paid  on  March  5  a  sum  much 
larger  than  that  for  which  it  was  constitu- 
tionally liable  during  the  entire  year.  Htld, 
that  the  payment  operated  as  a  discharge  of 
the  taxes  for  the  entire  year,  and  the  com- 
pany might  restrain  the  treasurer  from  sell- 
ing property  to  pay  the  August  instalment. 
Northern  Pac,  R.  Co.  v.  Raymond,  37  Am,  &• 
Eng,  R,  Cas.  379,  5  HaJi,  356.  i  L.  R.  A.  732. 
40  A^.  IV.  Rep,  538,  2  Int.  Com.  Rep.  321. 

201.  Tender. — Where,  upon  payment 
of  taxes,  the  statute  requires  the  tax  re- 
ceiver to  give  a  receipt,  a  tender  of  taxes  is 
not  rendered  invalid  because  such  a  receipt 
is  demanded.  State  v.  Central  Pac.  R.  Co., 
54  Am.  &*  Eng.  R.  Cas.  275,  3i  Nev.  247, 30 
Pac.  Rep.  686. 

202.  lYhat  Is  receivable  In'  pay- 
ment.— The  provision  in  the  Legal  Tender 
Act  of  1862  making  United  States  notes  a 
legal  tender  for  debts  does  not  apply  to 
state  taxes.  Lane  County  v.  Oregon,  7  IVall 
(U.  S.)  71. — Distinguished  in  Baltimore 
&  O.  R.  Co.  V.  State,  36  Md.  519. 

The  revenue  bond  scrip  issued  by  South 
Carolina  in  exchange  for  bonds  of  the  Blue 
Ridge  railroad  which  the  state  had  guar* 
anteed  are  not  receivable  for  the  taxes  on 
said  road.  Hagood  v.  Southern,  117  U,  S. 
52,  6  Sup.  Ct.  Rep,  608.  —  Followed  in 
North  Carolina  v.  Temple,  134  U.  S.  22. 

Virginia  Funding  Act  of  March  30,  1871, 
authorized  coupons  cut  from  consolidated 
bonds  to  be  receivable  in  payment  of  all 
dues  to  the  state.  Subsequently  the  legis- 
lature passed  an  act  requiring  the  validity 
of  all  coupons  offered  in  payment  of  public 
dues  to  be  tested  by  a  certain  proceeding  in 
court.  Still  later  it  passed  an  act  providing 
that  officers  should  only  receive  money  in 
payment  for  taxes,  but  provided  a  method 
by  which  a  taxpayer  might  pay  in  coupons 
to  the  state  treasurer.  A  railroad  company 
disregarded  these  requirements  and  ten- 
dered the  amount  of  taxes  due  on  its  prop- 
erty in  coupons,  which  were  refused.  Held, 
that  the  coupons  must  be  received,  and  a 
penalty  of  thirty  per  cent,  under  the  stat- 
ute was  improperly  imposed,  and  the  com- 
pany might  restrain  the  authorities  frnni 


felling  its  property.  (Hughes,  J.,  dissent* 
ing.)  Baltimore  &*  O.  R.  Co.  v.  Allen,  17 
Fed.  Rep.  171. 

203.  Duties  of  tax  receiver.  —  It  it 

the  duty  of  a  tax  receiver  to  receive  the  full 
taxes  on  the  least  subdivision  entered  on 
the  assessment  roll,  when  properly  tendered, 
and  to  give  his  receipt  therefor.  When 
a  oiMic  officer  has  been  clothed  by  statute 
wita  power  to  do  an  act  which  concerns 
the  rights  of  third  persons,  the  execution 
of  the  power  may  be  insisted  on,  though 
the  phraseology  of  the  statute  be  permissive 
merely,  and  not  peremptory.  State  v.  Cen- 
tral Pac.  R.  Co.,  21  Nev,  94, 25  Pac,  Rep.  442. 
The  law  permits  the  taxpayer,  and  lie  has 
a  right,  to  pay  the  tax  on  subdivisions  of  his 
property  without  paying  the  taxes  upon  his 
entire  property.  State  v.  Central  Pac.  R. 
Co.,  21  Nev,  94,  25  Pac,  Rep.  442. 

204.  Appointment  of  collector.— 
Under  a  statute,  a  precinct  in  a  county  sub- 
scribed stock  in  a  railroad  company.  The 
county  judge  was  required  to  appoint  a 
"collector  of  taxes  so  levied  for  said  pre- 
cinct "  and  attempted  to  find  a  collector,  but 
failed.  Appellees  sought  the  aid  of  the 
circuit  court  to  compel  payment  by  the  tax- 
payers, and  the  court  adjudged  that  pay- 
ment be  made  through  its  receiver.  Held, 
that  the  power  to  levy  or  collect  taxes  is 
not  one  of  the  inherent  powers  of  any 
judicial  tribunal.  The  duty  and  the  power 
are  legislative,  and  when  the  legislature  fails 
to  enact  proper  legislation,  or  to  provide 
the  means  of  collecting  taxes  imposed,  if 
the  judiciary  may  interpose,  the  theo'7  of 
the  government  and  the  distributiun  of 
powers  are  destroyed.  The  chancellor 
exceeded  his  power  both  in  appointing  a 
collector  in  the  precinct,  and  in  rendering 
judgment  against  the  taxpayers.  McLean 
County  V.  Deposit  Bank,  81  Ky.  254.— Ap- 
proving Pennington  v.  Woolfolk,  79  Ky.  13. 
Quoting  Heine  v.  Levee  Com'rs,  19  Wall. 
(U.  S.)  655 ;  Rees  v.  Watertown,  19  Wall. 
107 ;  Barkley  v.  Levee  Com'rs,  93  U.  S.  258. 

1205.  Special  collector.  —  The  order 
of  a  county  court  that  the  collector  should 
collect  a  railroad  tax,  a  duty  belonging 
properly  to  a  special  collector,  does  not 
affect  the  liability  of  the  sureties  of  the 
collector,  nor  release  them  from  the  obli- 
gation of  their  bond.  McLean  v.  State,  8 
Heisk.[.Tenn.)  22, 

A  railroad  tax  in  Tennessee  is  to  be  col- 
lected by  a  special  tax  collector,  whether  it 


1 


'i  I 


■:l 


'n 


^   i 


■f:;;?» 


986 


TAXATION,  296-900. 


is  collected  for  the  company  or  for  the 
county  where  it  has  issued  warrants  or 
bonds  for  the  subscription.  McLtan  v. 
State,  8  Htisk.  (  TVmm.)  23. 

The  county  court  has  no  power  to  im- 
pose  the  duty  of  collectings  a  railroad  tax 
on  the  regular  county  tax  collector.  It  may 
appoint  him  railroad  tax  collector,  but  his 
sureties  on  his  general  bond  will  not  be  lia- 
ble for  the  non-performance  of  his  duties  in 
that  behalf.  McLean  v.  State,  8  Heisk. 
( Tenn.)  22. 

206.  Statement  of  clerk  and  re- 
turn of  collector.— The  statement  of  tlie 
county  clerk  issued  under  Missouri  Act  of 
April  14,  1877,  is  not  void  because  the  tax  is 
designated  as  a  delinquent  tax  for  the  year 
1875  instead  of  for  1876,  it  appearing  that 
the  proper  tax  had  been  levied  for  the 
proper  period  of  time.  Morrison  v.  St. 
Louis,  /.  M.  &*  S.  R.  Co.,  96  Mo.  602,  9  S. 
fV.  Hep.  626.  10  5.  tV.  Rep.  148. 

A  statement  issued  by  a  clerk  under  the 
above  statute  is  in  effect  an  execution.  The 
return  to  such  writ  may  be  amended  by  the 
officer  who  made  the  return,  even  after  the 
expiration  of  his  term  of  office.  Morrison 
V.  St.  Louis,  /.  M.  &*  S.  R.  Co.,  96  Mo.  602, 

9  S.  W.  Rep.  626,  10  5.  W.  Rep.  148. 

A  sale  of  property  under  a  statement 
which  includes  a  penalty  for  the  non-pay- 
ment of  the  tax,  issued  under  the  above 
statute  by  a  county  clerk,  is  not  open  to  the 
objection  that  a  ministerial  officer  cannot 
impose  a  penalty,  it  appearing  that  at  the 
sale  only  a  portion  of  the  principal  debt 
was  realized.  Morrison  v.  St.  Louis,  I.  M. 
Sf  S.  R.  Co.,  96  Mo.  602,  9  S.  JV.  Rep.  626, 

10  5.  W.  Rep.  148. 

207.  Demand  before  issuing  war- 
rant.*—N.  Y.  Act  of  1882,  ch.  410,  §  848, 
known  as  the  Consolidation  Act,  relating  to 
New  York  city,  requires  the  receiver  of 
taxes  to  "  demand  payment  of  all  taxes  as- 
sessed on  incorporated  companies  in  said  city 
from  the  president  or  proper  officer  of  such 
companies  "  before  attempting  to  enforce 
collection.  By  section  853  he  is  authorized 
to  issue  a  warrant  and  to  collect  taxes  by 
distress  and  sale.  Held,  that  the  statutory 
lemand  should  precede  a  warrant  to  a 
maiahal  to  collect  taxes  from  a  corporation. 
McLean  v.  New  York  &*  S.  B.  F.  S-  S.  T. 
Co.,  60  Hun  80,  14  M  Y.  Supp.  74. 


*  Notice  of  assessment,  see  note,  13  Am.  & 
Bmo.  R.  Cas.  383. 


208.  Warrant,  how  fhr  protects 

offlcer.^Although  a  warrant  for  the  col- 
lection of  a  tax  or  assessment,  pursuant  to 
a  statute  of  the  state,  may  have  been  issued 
erroneously  or  irregularly,  if  on  its  face  it 
gives  authority  to  the  officer  to  collect  the 
tax  or  assessment,  replevin  cannot  be  sus- 
tained for  property  taken  by  virtue  of  the 
warrant.  Troy  **  L.  R.  Co.  v.  Kane,  72  N. 
Y.  614 ;  affirming  9  Hun  506. 

200.  Settlements  and  compro- 
mises. —  A  certain  portion  of  a  railroad 
was  conceded  to  be  subject  to  an  ad  valorem 
tax,  and  in  the  course  of  extensive  corre- 
spondence between  the  attorney  of  the 
company  and  the  attorney-general  only  that 
portion  was  referred  to,  for  which  it  was 
finally  agreed  that  a  certain  sum  should  be 
paid  and  received.  Held,  that  this  was  not 
a  settlement  releasing  other  portions  of  the 
road  from  an  ad  valorem  tax.  State  v. 
Southwestern  R.  Co.,  70  Ga.  1 1. 

A  county  court  in  Missouri  has  no  au> 
thority  to  compromise  city  taxes.  Kansas 
City  V.  Hannibal &*  St.  J.  R.  Co.,  22  Am.  6- 
Eng.  R.  Cas.  239,  81  Mo.  285.  — Distin- 
guishing St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Anthony,  73  Mo.  431 ;  State  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  77  Mo.  202. 

A  company  owing  a  certain  amount  of 
taxes  for  three  years  entered  into  a  compro- 
mise with  the  board  of  county  commis- 
sioners, whereby  it  paid  a  certain  less 
amount  and  received  a  receipt  purporting 
to  be  in  full  for  all  the  taxes.  Held,  that 
such  receipt  was  not  evidence  of  payment 
in  full  for  the  tax  of  any  one  year.  State  v. 
Central  Pac.  R.  Co.,  9  Nev.  79.— FOLLOWED 
IN  State  V.  Central  Pac.  R.  Co.,  10  Nev.  47. 

County  commissioners  have  no  power  to 
compromise  and  settle  suits  instituted  by 
the  state  against  a  railroad  for  the  collection 
of  delinquent  taxes.  State  v.  Central  Pac. 
R.  Co.,  g  Nev.  79. 

Neither  the  county  commissioners  nor 
a  district  attorney  have  any  authority  to 
make  a  compromise  or  composition  with 
delinquent  taxpayers,  nor  to  release  them 
from  payment  of  taxes.  State  v.  Central 
Pac.  R.  Co.,  10  Nev.  47. 

Where  two  railroad  companies  are  con- 
solidated under  the  Pa.  Act  of  March  24, 
1865,  and  a  new  company  is  created,  a  debt 
due  by  one  of  the  old  companies  to  the 
state  may  be  settled  by  the  auditor-general 
against  the  new  company.  The  settlewent 
is  not  vitiated  by  naming  both  the  com- 


TAXATION,  800-309. 


987 


ir  protects 

L  for  the  col- 
,  pursuant  to 
e  been  issued 
on  its  face  it 
,o  collect  tlie 
innot  be  sus> 
virtue  of  the 
'.  Kane,  72  N. 

A    conipro- 

of  a  railroad 
in  ad  valorem 
ensive  corre- 
)rney  of  the 
eral  only  that 
nrhich  it  was 
m  should  be 
:  this  was  not 
>rtions  of  the 
\x.    State  V. 

i  has  no  au- 
xes.  Kansas 
0.,  2a  Am.  &* 
I5.  — DlSTIN- 
S.  R.  Co.  V. 
V.  St.  Louis, 

n  amount  of 
ito  a  compro- 
nty  com  mis- 
certain  less 
)t  purporting 
,  Held,  that 
1  of  payment 
ear.  State  v. 
-  Followed 
.,  10  Nev.  47. 
no  power  to 
instituted  by 
:he  collection 
Central  Pae. 

ssioners  nor 
authority  to 
>osition  with 
release  them 
te  V.  Central 

lies  are  con- 
of  March  24, 
eated,  a  debt 
anies  to  the 
ditor-general 
e  settlenent 
)th  the  com- 


panies as  debtors.  Buffalo  &*  E.  R.  Co.  v. 
Com.,  3  Brews.  (Pa.)  374. 

Substance,  and  not  form,  is  required  in 
the  settlements  by  the  auditor-general  and 
state  treasurer  for  corporation  taxes ;  hence 
a  settlement  is  valid  which  is  made  against 
a  corporation  formed  by  a  consolidation  of 
two  companies,  for  a  debt  due  by  one  of  the 
old  companies,  and  for  a  debt  due  by  the 
new  corporation,  Bt^ffah  &*  E,  K.  Co.  v. 
Com.,  3  Brews.  (Pa.)  374. 

If  a  new  company  formed  by  consolida- 
tion of  two  corporations  makes  a  second 
consolidation  and  assumes  another  name,  it 
cannot  thereby  escape  payment  of  a  debt 
due  before  the  second  consolidation.  A 
settlement  can  be  made  against  it  in  its 
own  name.  Buffalo  &•  E,  Ji.  Co.  v.  Com,,  3 
Brews.  (Pa.)  374. 

300.  LiHtHofdeliuquoiits.— A  delin- 
quent list,  filed  on  application  for  judgment 
Hgainst  a  railroad  track  for  road  district 
taxes,  described  the  property  at  follows : 
"Ohio  and  Mississippi  railway  company 
railway  track  :  A  strip  of  land  extending  on 
each  side  of  said  railway  track,  and  embrac- 
ing the  same,  together  with  all  the  stations 
and  improvements  thereon,  commencing  at 
the  point  where  said  railway  crosses  the 
northern  and  eastern  boundary  line  of  Clay 
county  in  entering  said  county,  and  extend- 
ing to  the  point  where  said  track  crosses 
the  southern  and  western  boundary  line  of 
said  county  in  leaving  the  same,  containing 
594.76  acres.  District  road  tax  and  back  dis- 
trict road  tax  for  the  years  1883-1884,  *  •  * 
to  wit,"  giving  a  statement  of  the  road  taxes 
in  seven  different  townships.  Held,  that 
the  description  was  in  conformity  with  the 
requirements  of  the  law.  Ohio  &*  M.  K. 
Co.  V.  People  ex  rel.,  119  ///.  207,  10  N.  E. 
Rep.  545. 

The  object  of  2  Nev.  Com  p.  L.  3164,  §  4, 
authorizing  the  board  of  commissioners  to 
strike  oil  from  the  delinquent  list  such 
taxes  as  cannot  be  collected,  is  to  provide  a 
means  of  balancing  the  account  between  the 
auditor  and  district  attorney;  the  delin- 
quent taxpayer  cannot  claim  any  advantage 
from  it.  State  v.  Central  Pac.  R.  Co.,  10 
Nev.  87. 

The  statute  regulating  the  manner  in 
which  lists  of  delinquent  taxpayers  shall  be 
made  out  by  the  sheriff  is  directory ;  and  if 
its  essential  re^juirements  be  complied  with, 
it  ii  suiBcient.  Houston  &*  T.  C.  R.  Co.  v. 
State,  3f  Tex.  148. 


301.  Interest  on  overdue  taxes.* 

—A  county  tax  on  railroads,  payable  by 
statute  at  a  certain  time,  does  not,  in  the  ab- 
sence of  a  statutory  provision,  bear  interest 
if  not  paid  when  due,  nor  can  such  interest 
be  coll««'jted  as  damages.  Kentucky  C.  R, 
Co.  V  PfndUtoH  Co..  (A>.)  2  5.  W.  Rep.  176, 
State  V.  Southwestern  R.  Co.,  70  Ga.  11. 

The  recevers  appointed  by  the  court  be- 
ing in  possession  of  the  defendant  road  dur- 
ing vacation,  the  tax  bills  in  question  were 
presented  to  them  for  payment.  Doubts 
existing  as  to  the  legality  of  some  of  the 
levies,  an  arrangement  was  entered  into 
between  the  attorneys  of  the  receivers  and 
petitioners,  that  the  advice  of  the  court 
should  be  taken  upon  the  question.  Held, 
that  defendant  company  did  not  come  within 
the  terms  of  Mo.  Act  of  March  15,  1875, 
which  provide  a  penalty  of  two  and  one-half 
per  cent,  where  any  railroad  shall  fail  to  pay 
taxes  levied  upon  it,  but  that  the  court 
would  award  interest  at  the  rate  of  ten  per 
cent,  per  annum  from  the  day  the  taxes  be- 
came due,  in  lieu  of  the  penalty.  Ketchum 
v.  Pacific  R.  Co.,  4  Dill.  (C/.  S.)  Ai. 

In  receiving  from  a  company  a  tax  on 
dividends,  city  authorities,  as  well  as  the 
company,  by  mutual  mistake,  treated  the 
authorized  capital  as  the  basis  of  calcula- 
tion. Held,  that  the  company  was  not  liable 
for  interest  on  the  amount  underpaid  until 
demand.  Second  &*  T.  St.  Pass.  R.  Co.  v. 
Philadelphia,  51  Pa.  St.  465. 

302.  Penalties.— No  machinery  being 
provided  for  the  return,  for  the  purpose  of 
county  taxation,  of  property  of  a  railroad 
not  necessary  to  its  franchise,  and  it  being 
a  question  admitting  of  doubt  whether  the 
legislature  intended  it  to  return  and  pay 
county  tax  at  all,  it  would  be  inequitable  to 
exact  a  double  tax  for  laches  in  not  making 
such  returns  and  payment.  Savannah,  F. 
&*  IV.  R.  Co.  V.  Morton,  71  Ga.  24. 

Where  lands  omitted  by  the  assessor  or 
clerk  have  been  placed  upon  the  tax  list  by 
the  county  treasurer,  penalties  commence 
to  run  from  the  time  when  such  entry  was 
in  fact  made ;  and  that  the  treasurer  does 
not  sell  land  upon  which  taxes  are  delin- 
quent does  not  prevent  the  accumulation 
of  penalties.  Cedar  Rapids  &*  M.  R.  R.  Co. 
v.  Carroll  County,  41  Iowa  153. 

That  penalties  have  largely  accumulated 
while  litigation  has  been  pending  respecting 

*  See  also /M/,  822. 


988 


TAXATION,  308,  304. 


if"*"'"' 

■■■'&•     .'- 


'*■ 


the  validity  of  the  tax  will  not  justify  a 
court  of  equity  in  remitting  or  diminishing 
them.  CtJar  Rapidt  &»  M.  R.  R.  Co.  v. 
CarrM  County,  41  Iowa  1  $3. 

The  repeal  of  a  statute  under  which  pen< 
alties  have  accrued  for  the  non-payment  of 
taxes  does  not  affect  the  liability  of  the 
owner  for  the  amount  of  such  penalties. 
Cedar  Rapids  6-  M.  R.  R.  Co.  v.  Carroll 
County,  41  Iowa  153. 

The  ten  per  cent,  penalty  required  by  law 
to  be  added  to  taxes  in  case  of  failure  to  pay 
by  January  10  becomes,  when  added,  a  part 
of  the  taxes  due.  Kansas  Pac.  R.  Co.  v. 
Amrine,  10  Kan.  318. 

303.  Sale  of  rails  and  cars  for  non- 
payment  —  When  in  hands  of  re- 
ceiver.*— Railroad  property  in  the  hands 
of  a  receiver  appointed  by  a  federal  court  is 
not  subject  to  seizur-i  and  levy  for  the  col- 
lection of  a  state  tax.  The  remedy  of  the 
collector  is  by  application  to  the  federal 
court,  where  the  validity  of  the  tax  may  be 
determined  and  where  an  order  may  be  had 
for  the  payment  of  the  tax  if  it  is  found  to 
constitute  a  prior  lien.  In  re  Tyler,  149  U. 
S.  164.  13  Sup.  Ct.  Rep.  785. 

Illinois  Act  of  Feb.  14,  i8$j,  amending 
the  revenue  laws  of  the  state,  in  so  far  as  it 
provides  that  railroad  tracks  shall  be  con> 
sidered  "  fixed  and  stationary  personal  prop- 
erty "  creates  a  species  of  personal  property 
not  before  known  to  the  law ;  and  if  a  tax 
on  such  property  is  not  paid,  the  collector 
may  levy  upon  the  rails  and  remove  them 
from  the  track  for  the  purpose  of  enforcing 
payment.  Maus  v.  Logansport,  P.  6*  B.  R. 
Cc.,  7-7  III.  77. 

But  the  above  statute  only  makes  the 
track  personal  property  for  the  purposes  of 
t?*!«tion,  and  does  not  change  its  character 
for  other  purposes.  Maus  v.  Logansport, 
P.  6-  B.  R.  Co.,  27  ///.  77. 

And  that  portion  of  the  act  of  1853 
which  makes  real  property  liable  for  taxes 
on  personal  property,  and  vice  versa,  has  no 
application  to  a  tax  on  a  railroad  track. 
Such  property  must  bear  its  own  burden  of 
taxation.  Maus  v.  Lcgansport,  P.  &*  B.  R. 
Co.,  27  ///.  77- 

Property  of  a  company  in  the  limits  of 
towns  may  be  assessed  and  taxed  for  mu- 
nicipal purposes,  but  cars  are  not  subject 
to  seizure  and  sale  by  a  ministerial  officer 
to   satisfy  such    taxes.    Tke    sale  of  two 


*See  also  Rbcxivers,  44. 


freight  cars  levied  on  by  a  town  marshal 
was  perpetually  enjoined.  The  collection 
of  such  taxes  can  only  be  enforced,  like 
the  claims  of  creditors  of  the  company,  by  a 
court  of  equitable  jurisdiction.  Elizabeth- 
town  &»  P.  R.  Co.  V.  Elinabethtown,  12  Bush 
{Ky.)  233.  —  Distinguished  in  Ludlow  v. 
Cincinnati  Southern  R.  Co.,  7  Am.  &  Eng. 
R.  Cas.  231,  78  Ky.  357.  Quoted  in  Lin- 
coln County  Court  v.  Louisville  &  N.  R.  Co., 
(Ky.)  7  Am.  &  Eng.  R.  Cas.  320 ;  Adams 
Exp.  Co.  V.  Lexington,  83  Ky.  657. 

The  rolling  stock  of  a  company  is  per- 
sonal property,  and  may  be  seized  for  the 
collection  of  taxes'.  Randall  v.  Elwell,  52 
N.  Y.  521.  -Following  Stevens  w.  Buffalo 
&  N.  Y.  C.  R.  Co.,  31  Barb.  (N.  Y.)  590; 
Beardsley  v.  Ontario  Bank,  31  Barb.  619. 
Not  following  Farmers'  L.  &  T.  Co.  v. 
Hendrickson,  25  Barb.  485.  —  Followed 
IN  Neilson  v.  Iowa  Eastern  R.  Co.,  51  Iowa 
184,  714. 

304.  Fees  and  commissions.  —  A 
company  commenced  an  action  against  a 
county  treasurer  and  a  sheriff  to  restrain 
the  collection  of  certain  taxes.  The  in- 
junction was  refused,  and  judgment  was 
rendered  in  favor  of  the  officers,  and  against 
the  company,  for  costs.  The  case  was  taken 
to  the  supreme  court  by  the  company,  and 
the  judgment  was  affirmed.  The  county 
attorney  attended  to  the  suit  for  the  treas- 
urer and  sheriff  as  county  attorney,  but 
without  being  employed  by  any  person. 
The  company  then  paid  the  taxes,  but  neg- 
lected to  pay  the  ten  per  cent,  penalty 
which  had  accrued  thereon.  The  county 
attorney  then  filed  a  pracipe  with  the  treas- 
urer for  a  tax  warrant  to  collect  said  penalty. 
The  treasurer  issued  the  warrant,  and 
delivered  it  to  the  sheriff,  and  the  sheriff, 
by  virtue  of  the  warrant,  collected  said 
penalty,  and  paid  it  over  to  the  treasurer. 
Held,  that  said  taxes  and  penalty  were  col- 
lected under  the  law,  and  not  under  said 
judgment ;  that  such  pracipe  is  unknown  to 
the  tax  laws,  and  amounted  to  nothing 
more  than  an  opinion  of  the  county 
attorney;  that  the  treasurer  and  sheriff 
collected  the  taxes  and  penalty,  and  not  the 
county  attorney;  and  that  the  county 
attorney  was  not,  under  the  statutes,  entitled 
to  ten  per  cent,  of  the  taxes  and  penalty  for 
collecting  the  same.  Johnson  County  Com'rs 
V.  Qgg,  13  Kan.  198. 

With  a  single  exception,  provided  by 
Miss.  Laws  of  1890,  p.  74,  in  case  of  levee 


a  town  marshal 
The  collection 
e  enforced,  like 
le  company,  by  a 
tion.  Elizabeth- 
ethtawH,  12  Bush 
lO  IN  Ludlow  V. 
K,  7  Am.  &  Eng. 
Quoted  in  Lin- 
ville  &  N.  R.  Co., 
as.  320;  Adams 
Cy.  657. 

company  is  per« 
e  seized  for  the 
%ll  V.  Elwell,  5a 
tevens  v,  Buffalo 
rb.  (N.  Y.)  590; 
c,  3!  Barb.  619. 
L.  &  T.  Co.  V. 
5.  —  Followed 
R.  Co.,  51  Iowa 

missions.  —  A 

action  against  a 
eriff  to  restrain 
taxes.  The  in- 
I  judgment  was 
cers,  and  against 
e  case  was  taken 
le  company,  and 
:d.  The  county 
lit  for  the  treas- 
y  attorney,  but 
by  any  person. 
e  taxes,  but  neg- 
ir  cent,  penalty 
n.  The  county 
e  with  the  treas- 
ect  said  penalty. 
E  warrant,  and 
and  the  sheriff, 
,  collected  said 
o  the  treasurer, 
enalty  were  col- 
not  under  said 
)«  is  unknown  to 
ted  to  nothing 
of  the  county 
rer  and  sheriff 
tity,  and  not  the 
at  the  county 
lUtutes,  entitled 
and  penalty  for 
«  County  Com'rs 

n,  provided  by 
in  case  of  levee 


TAXATION,  306-307 

taxes  paid  by  railroad  companies  direct  to 


989 


the  levee  board,  a  tax  collector  is  never 
entitled  to  commission  on  taxes  not  actually 
collected  by  him.  Yazoo  &•  M.  V.  R.  Co. 
V.  Love,  69  Miss.  109,  12  So.  Rep.  266. — 
Applying  Wynne  v.  Mississippi  &  T.  R. 
Co.,  45  Miss.  569. 

Where  such  levee  taxes  are  paid  by  a 
company  to  the  levee  board  direct,  after 
Dec.  15,  the  tax  collector,  although  entitled 
to  his  usual  commissions  from  the  board,  is 
not  entitled  to  recover  from  the  company 
the  ten  per  cent,  additional  compensation 
which,  under  Miss.  Code  1880,  §  524,  he 
would  have  been  entitled  to  if  the  delin- 
quent taxes  had  actually  been  received  by 
him.  Yazoo  &•  M.  V.  R.  Co.  v.  Love,  69 
Miss.  109.  12  So.  Rep.  266. 

305.  Rebates.  —  Parties  paying  taxes 
on  railroad  property  in  the  unorganized 
counties  of  the  state,  levied  under  Kansas 
Act  of  1876,  are  entitled  to  the  same  rebate 
as  taxpayers  in  the  organized  counties. 
State  ex  rel.  v.  Francis,  23  Kan.  495. 

2.  Lien  for  Taxes, 

306.  In  general.  —  Failure  of  the  col- 
lector to  return  taxes  assessed  against  rail* 
road  property  as  delinquent  will  not  affect 
the  rights  of  the  state  or  municipalities. 
The  taxes  become  a  lien  from  the  first  day 
of  May,  and  such  lien  continues  until  they 
are  paid.  The  omission  to  make  such 
return  is  cured  by  III.  Revenue  Act,  §  191. 
Union  Trust  Co.  v.  Weber,  3  A,.t.  &*  Eng. 
R.  Cas.  583,  96  ///.  346. 

A  tax  upon  the  capital  stock  and  franchise 
of  a  railroad  company,  whether  they  be 
regarded  as  real  or  as  personal  property,  is  a 
lien  upon  the  real  property  of  the  company. 
Union  Trust  Co.  v.  Weber,  3  Am.  &*  Eng. 
R.  Cas.  583,  96  ///.  346. 

There  being  no  lien,  under  the  statute, 
against  any  part  of  a  "  railroad  track  "  for 
road  taxes,  except  upon  the  specific  portion 
thereof  upon  which  the  same  were  levied, 
it  is  error  to  render  judgment  against  the 
entire  railroad  in  the  county  for  the  taxes 
due  to  a  particular  road  district.  Wabash, 
St.  L.  6-  P.  R.  Co.  v.  People  ex  re'.,  137  ///. 
181,  27  N.  E.  Rep.  456. 

There  is  no  warrant  for  holding  that  the 
lien  for  taxes  on  one  tract  of  land,  or  upon 
a  part  or  portion  of  a  tract  of  land,  extends 
to  another  tract  of  land  upon  which  such 
taxes  have  not  been  levied,  although  owned 


by  the  same  person  or  corporation.  The 
lien  upon  a  railway  track  for  road  taxes  in 
one  district  is  confined  to  the  track,  etc.,  in 
such  district.  Wabash,  St.  L.  &*  P.  R.  Co.  v. 
People  ex  rel.,  137  ///.  181,  2/  A^.  £.  Rep.  456. 

The  county  board  of  equalization  ordered 
certain  railroad  iron  to  be  assessed  for  taxa- 
tion, ascertaining  its  value  from  the  surveyor 
of  customs  in  whose  charge  it  was  at  the 
time  or  from  some  other  person  not  an 
officer  of  the  railroad  company,  and  the 
auditor,  by  direction  of  the  board,  made  the 
entry  on  the  assessor's  roll  and  afterwards 
entered  it  upon  the  treasurer's  books.  Held, 
that  such  an  assessment  was  invalid,  and 
did  not  create  any  lien  on  the  property. 
Evansville  &*  I.  R.  Co,  v.  Hays,  118  Ind. 
214,  20  iV.  E.  Rep.  736. 

How.  Mich.  St.  §  3362,  gives  to  the  state 
a  paramount  lien  upon  the  personal  prop- 
erty of  a  company  for  all  taxes  due  from 
the  company  owning  or  operating  the  rail- 
road, which  lien  attaches  upon  the  filing  by 
the  commissioner  of  railroads  with  the 
auditor-general  of  a  computation  of  the 
p.iiount  of  such  tax  pursuant  to  section 
3358,  and  is  not  lost  by  the  failure  of  the 
auditor-general  to  issue  his  warrant  or  com- 
mence suit  for  the  collection  of  such  taxes, 
his  power  to  do  so  not  being  limited  to  any 
specified  time.  Stevens  v.  Lake  George  &*  M. 
R.  R.  Co.,  82  Mich.  426.  46  N.  W.  Rep.  730. 

A  railroad  right  of  way  cannot  be  ctiarged 
with  the  lien  of  a  special  tax  bill  for  street 
improvements  done  under  the  charter  of  a 
city.  Sweaney  v.  Kansas  City  R.  Co.,  54 
Mo.  App.  265. 

There  is  not  in  Missouri  any  personal 
liability  of  the  abutting  property  owner 
for  street  improvements,  and  special  taxes 
therefor  are  alone  a  charge  against  the  prop- 
erty. Sweaney  v.  Kansas  City  R.  Co.,  54 
Mo.  App.  265. 

When  taxes  are  levied  they  become  a 
lien,  and  when  the  board  of  equalization 
h4s  acted  an  obligation  immediately  arises 
on  the  part  of  the  company  taxed  to  pay  to 
the  state  the  amount  due;  and  thereafter 
county  commissioners  can  neither  release 
the  property  from  the  lien  nor  discharge  the 
party  from  his  obligation.  Ste^e  v.  Central 
Pac.  R.  Co.,  9  Nev.  79. 

307.  Priority  between  tftx  Uen 
and  other  encumbrances.  —  The  lien 
of  the  state  of  Georgia  for  taxes  upon  the 
property  of  a  company,  rightfully  in  the 
custody  of  the  law,  is  prior  to  all  other  liens 


fW 


990 


TAXATION,  308-312. 


*!i' 


'^r 


ig'!:"' 


whatsoever,  except  the  lien  of  judicial  costs. 
Ctorgia  v.  Atlantic  &*  G.  Ji.  Co.,  3  Woods 
(I/.  S.)  434. 

Taxes  on  personal  property  are  not  a  lien 
or  charge  upon  any  specific  property  until 
the  tax  books  are  delivered  to  the  collector. 
After  such  delivery,  the  collector  may  levy 
on  any  personal  property  found  in  the  hands 
of  the  person  against  whom  the  taxes  have 
been  assessed ;  but  this  levy  will  be  subject 
to  any  incumbrance  on  the  property  created 
prior  to  the  time  he  received  the  books. 
So  a  tax  on  the  capital  stock  of.  a  railroad 
company,  being  a  tax  on  personal  property, 
is  subject  to  this  rule.  Cooper  v.  Corbin,  13 
Am.  &*  Eng.  R.  Cat.  394,  105  ///.  224. 

Where,  at  the  time  the  taxes  assessed 
upon  tiie  capital  stock  of  a  company  become 
a  lien  on  its  property,  a  prior  lien  has  been 
created  upon  the  same  by  the  execution  and 
recording  of  a  valid  mortgage  thereon,  the 
tax  lien  will  attach  only  on  the  company's 
equity  of  redemption ;  and  when  that  equity 
is  cut  off  by  a  foreclosure  and  sale  under 
the  mortgage,  the  purchaser  will  take  the 
property  free  from,  any  lien  for  such  taxes, 
and  a  court  of  equity  will  enjoin  a  sale  of 
the  rolling  stock  of  such  company  for  the 
payment  of  the  taxes.  Cooper  v.  Corbin,  13 
Am.  &»  Eng.  Ji.  Cas.  394,  10$  ///•  224. 

308.  Use  of  property  subject  to 
lien.— A  company  and  its  assignees  are 
entitled  to  the  use  and  possession  of  the 
corporate  property  as  against  the  lien  of 
the  state  thereon  'sr  taxes  until  the  proper 
officers  of  the  state,  by  some  of  the  methods 
provided  by  law,  have  taken  steps  to  reduce 
it  to  possession  for  the  purpose  of  enforcing 
such  lien.  Stevens  v.  Lake  George  &*  M.  R. 
R.  Co.,  8a  Mich.  426,  46  N.  W.  Rep.  730. 

300.  Lien  not  divested  by  sale  of 
road.— How.  Mich.  St.  §  3403,  authorizing 
the  absolute  sale  of  a  railroad,  makes  such 
sale  subject  to  all  the  obligations  and  duties 
prescribed  by  the  general  railroad  laws  of 
the  state,  and  the  vendee  cannot  claim  to 
be  a  bona  fide  purchaser  as  against  the  lien 
of  the  state  for  taxes  due  from  the  vendor 
company.  Stevens  v.  Lake  George  &*  M.  R. 
R.  Co.,  82  Mich.  426,  46  N.  IV.  Rep.  730. 

310.  Enforcement  against  pur- 
chaser of  road.— In  a  suit  to  enforce  a 
lien  for  taxes,  although  a  common-law  judg- 
ment for  the  taxes  has  been  rendered  it  is 
necessary,  as  against  one  who  has  purchased 
the  property  since  the  rendition  of  that 
judgment  and  was  therefore  not  a  party  to 


it,  to  aver  the  preliminary  steps  necesiary 
to  create  the  lien,  as  if  no  judgment  had  been 
rendered.  Kentucky  C.  R.  Co.  v.  Com.,  92 
Ky.  64,  17  S.  W.  Rep.  196. 

A  warrant  for  the  collection  of  taxes  in 
Michigan  differs  in  no  essential  particular 
from  an  execution,  and  must  be  levied  upon 
the  property  of  the  corporation  therein 
named.  Therefore  where  all  the  property 
of  a  railroad  company  has  been  conveyed 
for  a  valuable  consideration,  and  the  pur- 
chasers are  in  peaceable  possession,  the  lien 
of  the  state  for  taxes  against  the  former 
owner  cannot  be  enforced  by  a  warrant ;  at 
least  until  a  court  of  equity  has  adjudicated 
the  rig'.it  of  the  state  against  both  the  pres- 
ent and  the  former  owners.  Hackley  v. 
Mack,  60  Mich.  591,  27  A^.  W.  Rep.  871. 

3.  Actions  for  Taxes. 

311.  Jurisdiction  and  power  of  the 
court. — The  circuit  court  of  a  particular 
county  has  no  jurisdiction  to  enforce  a  pen- 
alty against  a  company  for  refusing  to  give 
a  true  list  of  its  taxable  property,  under  a 
statute  providing  that  all  proceedings  in 
the  name  of  the  commonwealth  against  cor- 
porations, "  for  demands  due  to  the  state," 
shall  be  commenced  and  determined  in  the 
circuit  court  of  that  county.  Louisville  &* 
N.  R.  Co.  V.  Com.,  i  Bush  (Ky.)  250. 

In  a  proceeding  to  enforce  payment  of 
taxes  against  a  railroad,  the  fact  that  the 
land  against  which  a  tax  is  sought  to  be  en- 
forced is  exempted  from  taxation  does  not 
affect  the  jurisdiction  of  the  court  in  which 
the  proceedings  are  brought  to  try  and 
determine  the  legality  of  the  tax.  Chisago 
County  V.  St.  Paul  &*  D.  R.  Co.,  27  Minn. 
109.— Followed  in  Chauncey  v.  Wass,  35 
Minn.  1. 

In  a  suit  for  the  recovery  of  taxes  in  Mis- 
souri, the  court  cannot  go  behind  the  as- 
sessment and  valuation  made  by  the  board 
of  equalization,  as  to  the  number  of  miles 
of  a  railroad  in  a  specified  county.  It  can- 
not equalize  and  adjust  the  amount  of 
taxable  property  in  a  county,  nor  correct 
mistakes  of  fact  made  by  the  board  of 
equalization.  Ketchum  v.  Pacific  R.  Co.,  4 
/>///.  (£/.  5.)4i,  «. 

312.  Election  of  remedies  and 
forms  of  action.*— When  an  assessment 
has  been  made  by  the  agent  of  the  auditor 

*  Specific  statutory  remedy  not  exclusive,  see 
54  Am.  ft  Eno.  R.  Cas.  303,  abstr. 


II 


TAXATION,  313,  314. 


991 


iteps  necesaaiy 
;ment  had  been 
7o.  V.  Com.,  92 

an  of  taxes  in 
itial  particular 
be  levied  upon 
ration  therein 
I  the  property 
teen  conveyed 
I  and  the  pur- 
ession,  the  lien 
it  the  former 
a  warrant;  at 
as  adjudicated 
both  the  pres* 
Hackley  v. 
'.  Rep.  871. 

xes. 

lower  of  the 

f  a  particular 
Enforce  a  pen- 
using  to  give 
lerty,  under  a 
roceedings  in 
:h  against  cor- 
to  the  state," 
rmined  in  the 
Louisvillt  50 
.)  250. 

!  payment  of 
fact  that  the 
ight  to  be  en- 
tion  does  not 
}urt  in  which 
t  to  try  and 
tax.  Chisago 
Co.,  27  Minn. 
y  V.  Wass,  35 

taxes  in  Mis- 
ihind  the  as- 
by  the  board 
iber  of  miles 
inty.  It  can- 
amount  of 
,  nor  correct 
he  board  of 
vific  R.  Co.,  4 

edies   and 

n  assessment 
f  the  auditor 

exclusive,  see 


in  the  manner  prescribed,  and  reported  to 
the  auditor,  he  may  then  pnjceed  in  the 
Franklin  circuit  court  against  a  delinquent 
corporation,  by  motion  or  ordinary  proceed- 
ing, to  coerce  the  payment  of  iche  amount  so 
assessed;  and  no  right  of  action  exists  for 
the  non-payment  of  taxes  until  after  the 
assessment  has  been  made  as  prescribed  by 
law.  The  right  to  assess  or  coerce  assesS'^ 
ment  is  not  affected  or  barred  by  the  statute 
of  limitations.  Louisvillt  &*  N.  R.  Co.  v. 
Com.,  I  BusA  (AjK.)  250. 

Under  New  York  Corporation  Tax  Act 
of  1880,  which  provides  that  taxes  shall  be 
collected  for  the  use  of  the  state  as  other 
taxes  are  recoverable  by  law  from  corpora- 
tions, and  that  taxes  may  be  sued  for  in  the 
name  of  the  people  of  the  state  and  recov- 
ered in  any  court  of  competent  jurisdiction, 
in  an  action  brought  by  the  attorney-general 
at  the  instance  of  the  comptroller,  tne  rem- 
edy so  provided  does  not  preclude  the  court 
from  ordering  the  receiver  of  an  insolvent 
corporation  to  pay  the  corporation  tax  upon 
the  franchise  out  of  the  money  in  his  hands 
which  is  derived  from  the  exercise  of  the 
corporate  powers  as  authorized  by  the  fran- 
chise, where  such  corporation  is  largely 
and  hopelessly  insolvent.  Central  Trust  Co. 
v.  New  York  City  &•  N.  R.  Co.,  35  Am.  6* 
Eng.  R.  Cas.  9,  no  A':  Y.  250,  18  N.  Y.  S. 
R.  30,  \^  N.  E,  Rep.  92 ;  reversing  47  Hun 
587,  \i  N.Y.  S.  R.  178.— Distinguishing 
Com.  V.  Lancaster  Sav.  Bank,  123  Mass.  493. 

The  state  and  county,  having,  through  the 
board  of  commissioners  sitting  with  the 
justices  of  the  peace,  assessed  the  property 
of  a  corporation  for  taxation  and  placed  the 
tax  list  in  the  hands  of  the  sheriff,  who  can- 
not find  any  property  of  the  corporation 
upon  which  to  levy,  are  creditors  holding  a 
debt  against  such  corporation,  and  are  en- 
titled, under  N.  Car.  Code,  §§  668.  701.  to 
bring  a  proceeding  in  the  nature  of  a  cred- 
itor's bill  against  such  corporation,  with  or 
without  proceedings  for  its  dissolution. 
State  v.  Georgia  Co.,  112  N.  Car,  34,  17  S. 
E.  Rep.  10. 

The  fact  that  the  Revenue  Act  prescribes 
a  specific  remedy  for  the  collection  of  taxes 
does  not  restrict  the  state  to  pursuing  that 
method,  nor  preclude  it  from  seeking  the 
aid  of  the  superior  court  through  a  cred- 
itor's suit.  The  specific  remedy  pointed  out 
restricts  only  the  officers  who  collect  the 
revenue,  and  not  the  soveraign.  State  v. 
Georgia  Co.,i\i  N.  Car.  34. 17 i".  E. Rep,  10. 


An  assessed  tax  on  property  of  a  railroad 
is  a  debt  of  the  owner  of  the  property  dur- 
ing the  period  for  which  the  assessment  ia 
made,  and  may  be  enforced  like  any  other 
debt,  although  the  statute  authorizing  the 
assessment  prescribes  a  specific  mode  of 
treatment.  State  v.  Memphis  &*  C.  R.  Co., 
14  Lea  (Tenn.)  56.— Distinguishing  Col. 
cough  V.  Nashville  &  N.  W.  R.  Co.,  2  Head 
(Tenn.)  171. 

313.  Demand  before  suit.  — It  is  a 
general  rule  that  before  distraint  can  be  had 
or  suit  brought  for  taxes  a  demand  of  pay- 
ment must  be  made ;  but  a  demand  is  not 
necessary  where  a  statute  provides  that 
taxes  on  railroads  shall  be  due  and  payable 
at  a  time  certain.  Kentucky  C.  R.  Co.  v. 
Pendleton  County,  (A>.)  2  S.  IV.  Rep.  176. 

A  proceeding  was  instituted  by  a  munic- 
ipal  corporation  against  a  city  railway  to 
recover  a  tax  upon  the  earnings  of  the  com- 
pany, the  times  for  the  payment  of  which 
were  definitely  fixed  by  ordinance.  Held, 
that  the  failure  to  pay  the  tax  at  the  times 
prescribed  by  the  ordinance  was  a  breach 
of  duty  which  fastened  upon  the  company 
a  liability  to  be  proceeded  against  without 
any  demand  being  made.  Union  Pass.  R. 
Co.  v.  Mayor,  etc.,  0/  Baltimore,  71  Md.  238, 
17  Atl.  Rep.  933. 

314.  The  proper  party  plaintiff.— 
For  railroad  taxes  assessed  under  Mo.  Act 
of  1871,  suit  is  properly  brought  in  the 
name  of  the  county.  Livingston  County  v. 
Hannibal  6*  St.  J.  R.  Co.,  60  Mo.  516. 

Collectors  of  taxes  were  not  authorized 
by  Mo.  Act  of  March  20,  1872,  §§  1,2,  to  in- 
stitute suits  for  taxes  against  railroad  com- 
panies after  the  expiration  of  their  terms  of 
office,  but  were  only  authorized  to  continue 
the  prosecution  of  such  as  had  been  com- 
menced while  they  were  in  office.  Gordon 
V.  Lafayette  County,  74  Mo.  426. 

Under  Mo.  Act  of  March  15,  1875,  §  7.  a 
city  is  authorized  to  sue  in  its  own  name  for 
city  taxes  assessed  against  railroads.  Kan^ 
sas  City  v.  Hannibal  4-  St.  J.  R.  Co.,  32  Am. 
&*  Eng.  R.  Cas.  239.  81  Mo.  285. 

The  district  attorney  is  authorized  to  com- 
mence suit  for  delinquent  taxes  stricken  off 
the  delinquent  list  by  a  void  order  of  the 
board  of  county  commissioners.  Stat*  v. 
Central  Pac.  R.  Co.,  10  Nev.  87. 

Under  N.  Y.  Act  of  1874,  ch.  296,  sub- 
jecting the  property  of  the  New  York  and 
Oswego  Midland  railroad  company  to  tax- 
ation, and  appropriating  the  amount  of  the 


992 


TAXATION,  316,  316. 


county  taxes  thereon,  in  any  town  which 
hai  issued  bonds  in  aid  of  the  road,  to  such 
town,  to  be  devoted  to  the  payment  of  its 
bonds,  after  such  tax  has  been  collected  the 
moneys  belong  to  the  .own,  and  any  diver- 
sion thereof  from  their  lawful  purpose  is 
an  injury  to  the  town,  which  may  maintain 
an  action  for  its  protection.  Bridges  v. 
Sullivan  County  Sup'rs,  92  N.  Y.  570;  affirm- 
ing 27  Huh  175.— Followed  in  Strough  v. 
Jefferson  County  Sup'rs,  119  N.  Y.  212,23 
N.  E.  Rep.  552,  28  N.  Y.  S.  R.  967. 

In  such  case  tlie  town  is  not  confined  to 
the  remedy  of  an  action  against  tlie  coN 
lector  and  his  sureties,  under  section  4  of 
the  above  statute.  An  action  on  behalf  of 
the  town  may  be  brought  by  the  supervisors 
of  the  town,  under  Code  Civ.  Pro.,  §  1926. 
Bridges  v.  Sullivan  County  Sup'rs,  92  N.  Y. 
570;  affirming  27  Hun  175. 

A  county  is  a  delegated  part  of  the  au- 
thority of  the  state,  and  the  joinder  of  a 
county  with  the  state  cannot  a^ect  the  lat- 
ter's  right  to  sue — a  right  which  it  has  by 
implication  under  various  statutes,  aside 
from  the  fact  that  it  has  inherently  all 
remedies  not  voluntarily  and  unequivocally 
relinquished.  State  v.  Georgia  Co.,  112 
A';  Car.  34,  17  S.  E.  Rep.  10. 

315.  <?omplaint.— The  sufficiency  of  a 
complaint  in  an  action  to  recover  delin- 
quent taxes  must  be  tested  by  the  rules  reg- 
ulating pleadings  in  civil  actions.  People 
y.  Central  Pac.  R.  Co.,  41  Am.  &*  Eng.  R. 
Cas.  653,  83  Cal.  393,  23  Pac.  Rep.  303. 

A  complaint  in  an  action  against  a  com- 
pany to  enforce  the  payment  of  taxes  which 
avers  the  fact  of  assessment  of  "the  fran- 
chise, roadway,  roadbed,  rails,  and  rolling 
stock  of  the  defendant "  is  insufficient  if  it 
does  not  aver  that  defendant  is  the  owner  of 
such  or  any  property  situate  in  the  state  and 
within  the  jurisdiction  of  the  board  making 
the  assessment.  People  v.  Central  Pac.  R. 
Co.,  41  Am.  &•  Eng.  R.  Cas.  653,  83  Cal. 
393,  23  Pac.  Rep.  303. 

Such  complaint  is  also  defective  if  it  con- 
tains an  averment  that  the  state  board  of 
equalization  apportioned  the  assessment  to 
different  counties,  but  does  not  show  the 
authority  of  the  board  to  make  such  appor- 
tionment, or  that  any  portion  of  the  prop- 
erty was  situate  in  any  one  of  the  counties. 
People  V.  Central  Pac.  R.  Co.,  41  Am.  6*  En^. 
R.  Cas.  6$3.  83  Cal.  393.  23  Pac.  Rep.  303. 

Notwithstanding  the  provisions  of  a  stat- 
ute that  "  no  assessment,  or  act  relating  to 


assessment  or  collection  of  taxes,  is  illegal 
on  account  of  informality,  nor  because  the 
same  was  not  completed  within  the  time 
required  by  law,"  a  complaint  to  enforce 
the  payment  of  taxes  must  show  facts  suf- 
ficient to  make  out  a  prima  facie  case 
of  a  valid  tax  and  that  it  is  delinquent 
viz.:  the  assessment  of  the  tax  upon  prop- 
erty of  defendant,  the  general  character  of 
the  property  assessed,  and  that  its  situs  is 
within  the  state  or  the  county  where  as- 
sessed. People  v.  Central  Pac.  R.  Co.,  41 
Am.  &*  Eng.  R.  Cas.  653,  83  Cal.  393,  23 
Pac.  Rep.  303. 

The  provisions  of  Cal.  Political  Code  au- 
thorizing the  use  of  a  special  form  of  com- 
plaint to  enforce  the  payment  of  taxes  on 
railroads  situated  in  more  than  one  county 
are  in  violation  of  the  constitutional  prohibi- 
tion against  the  passing  of  special  laws  "  to 
regulate  the  practice  of  courts  of  justice." 
and  are  invalid,  notwithstanding  the  fact  that 
the  code  in  which  they  are  inserted  is  a  gen- 
eral law.  People  v.  Central  Pac.  R.  Co.,  41 
Am.  6-  Eng.  R.  Cas.  653, 83  Cal.  393,  23  Pac. 
Rep.  303. — Following  Dundee  Mortgage- 
Trust  Inv.  Co.  V.  School  Dist.  No.  i,  10 
Sawy.  (U.  S.)  52. 

A  description  of  unsurveyed  lands  as  cer- 
tain odd-numbered  sections  "as  their  desig- 
nation will  appear  when  the  surveys  of  the 
government  are  extended  over  them  "  is 
insufficient  for  their  identification  for  taxa- 
tion and  is  not  such  a  description  as  is  re- 
quired by  the  revenue  laws  of  Nevada. 
This  principle  applies  equally  when  it  is 
only  the  possessory  claim  to  the  land  that 
is  assessed.  State  v.  Central  Pac.  R.  Co., 
21  Nev.  94,  25  Pac.  Rep.  442. 

310.  Petition. — A  petition  in  an  action 
against  a  company  for  delinquent  taxes, 
under  Mo.  Rev.  St.  1879,  §  6889  et  seq., 
need  not  describe  the  property  otherwise 
than  as  so  many  miles  of  a  given  value, 
with  a  proper  proportion  of  the  value  of  the 
rolling  stock  added.  State  ex  rel.  v.  Han- 
nibal  <S-  5/.  /.  R.  Co.,  41  Am.  &*  Eng.  R. 
Cas.  581,  loi  Afo.  136,  13  S.  W.  Rep.  505. 

It  is  not  necessary,  when  suing  for  rail- 
road taxes  levied  under  Mo.  Township 
Railroad  Aid  Act  of  March  23,  1868,  to 
state  the  number  of  miles  of  road  in  the 
township,  the  petition  stating  the  amount. 
of  railroad  tax  levied  in  the  township  on 
defendant's  property.  State  ex  rel.  v.  Han- 
nibal &•  St.  J.  R.  Co.,  41  Am.  6-  Eng,  R. 
Cas.  581,  101  Mo,  136,  13  S.  W.  Rtp.  505, 


TAXATION,  317,318. 


taxes,  it  illegal 
or  because  the 
ithin  the  time 
int  to  enforce 
show  facts  Buf- 
ma  facie  case 
is  delinquent 
,ax  upon  prop- 
al  character  of 
;hat  its  situs  is 
anty  where  as- 
Pac.  K.  Co.,  41 
Jj  Cat.  393,  23 

litical  Code  au- 
1  form  of  com- 
;nt  of  taxes  on 
lian  one  county 
iitional  prohibit 
pecial  laws  "  to 
irts  of  justice," 
ing  the  fact  that 
serted  is  a  gen« 
Pac.  R.  Co.,  41 
Zal.  393. 23  Pac. 
idee  Mortgage- 
Dist.  No.  I,  10 

ed  lands  as  cer* 
"as  their  desig> 
surveys  of  the 
over  them  "  is 
ation  for  taxa- 
iption  as  is  re- 
ws  of  Nevada, 
illy  when  it  is 
I  the  land  that 
xl  Pac.  R.  Co., 

ion  in  an  action 
linquent  taxes, 
§  6889  et  seq., 
terty  otherwise 
a  given  value, 
he  value  of  the 
tx  rel.  V.  Han- 
m.  6*  Eng.  R. 
W.  Ktp.  505. 
suing  for  rail- 
Mo.  Township 
h  23,  1868,  to 
of  road  in  the 
ig  the  amount, 
e  township  on 
€X  rtl.  V.  Han- 
m.  &*  Eng,  R, 
W.  Rtp.  $05. 


It  is  immaterial,  as  to  the  validity  of  the 
tax  levied  under  said  act,  whether  the 
county  in  which  the  levy  was  made  had  or 
had  not  a  township  organization.  Statt  ex 
rel.  v.  Hannibal &>  St./.  R.  Co.,  41  Am.  &* 
Eng.  R.  Cas.  581,  loi  Mo.  136,  13  S.  W, 
Rep.  505. 

317.  PIea»  answer,  affidavit  of 
defense. — In  a  suit  against  a  company  to 
recover  taxes  under  an  a.dessnient  made  in 
the  absence  of  a  legal  statement,  defendant 
set  up  in  answer  that  the  assessment  was 
made  by  the  assessor,  fraudulently  and  con- 
trary to  his  official  judgment,  at  a  sum 
nearly  three  times  greater  than  the  fair 
value  of  the  property.  Held,  that  such 
answer  stated  good  matter  of  defense,  and 
was  not  demurrable.  State  v.  Central  Pac, 
R.  Co.,  7  Nev.  99. 

In  answer  to  a  tax  suit,  the  defense  was 
fraud  in  the  assessment,  and  it  was  alleged 
that  in  a  certain  statement  furnished  to  the 
assessor  (but  which  was  informal),  the  prop- 
erty was  "  set  down  as  of  the  value  of  $6000 
per  mile,  which  was  a  fair  valuation  thereof, 
and  so  known  and  believed  by  the  assess- 
ors." Held,  that  this  amounted  to  an  allega- 
tion that  $6000  per  mile  was  a  just  and  fair 
value,  and  consequently  that  an  assessment 
of  $15,000  per  mile  was  excessive.  State  v. 
Central  Pac.  R.  Co.,  7  Nev.  99. 

In  a  suit  to  recover  delinquent  taxes  de- 
fendant company  pleaded  that  it  had  paid 
to  plaintiff  a  certain  less  sum  and  that  plain- 
tiff had  accepted  and  received  the  same  in 
full  satisfaction  and  disciiarge.  Held,  that 
the  pleading  did  not  amount  to  an  answer 
that  the  taxes  had  been  paid,  or  constitute 
a  defense  to  the  action.  State  v.  Central 
Pac.  R.  Co.,  9  Nev.  79. 

An  answer  in  an  action  by  the  state  for 
taxes  upon  lands  granted  to  a  company 
which  denies  all  ownership  to  the  lands 
"except  such  ownership  aa  the  defendant 
may  have,  obtain,  or  secure,  as  yet  unknown 
and  uncertain  on  account  of  the  non-action 
of  the  government  through  its  land  depart- 
ment," is  evasive  and  uncertain,  and  is  not 
sufficient  under  the  Nevada  statute  permit- 
ting defendants  in  actions  for  taxes  to  deny 
all  claim,  title,  or  interest  in  the  property 
assessed  at  the  time  of  the  assessment. 
State  V.  Central  Pac.  R.  Co.,  40  Am.  &*  Eng. 
R.  Cas.  467,  20  Nev.  372,  22  Pac.  Rep.  237. 

In  an  action  to  recover  delinquent  taxes 
and  penalties  an  answer  denying  a  possess- 
ory claim  to  the  lands,  and  stating  facta 
7  D.  R.  D.— 63 


showing  that  the  rights  claimed  are  untaxa- 
ble, presents  a  good  defense,  although  it 
does  not  deny  all  claim,  title,  or  interest  in 
the  property  assessed.  State  v.  Central  Pac. 
R.  Co.,  21  Nev.  94,  25  Pac.  Rep.  442. 

The  settlement  of  a  state  tax  due  by  a 
corporation  under  Pa.  Act  of  June  7,  1879 
(P.  L.  112),  upon  the  basis  of  a  report  fur- 
nished by  the  corporation  to  the  auditor 
general,  is  a  ministerial  act,  which  need  not 
necessarily  be  performed  by  the  auditor- 
general  and  state  treasurer  in  person,  but 
may  be  performed  by  clerks  acting  respect- 
ively under  the  direction  and  by  the  au- 
thority of  those  officers.  Philadelphia  6* 
R.  R.  Co.  V.  Com.,  13  Am.  *•  Ef^.  R.  Cas. 
365,  104  Pa.  St.  86. 

In  an  action  of  debt  by  the  common- 
wealth against  a  corporation,  upon  an  ac- 
count for  state  tax  settled  against  it, 
defendant  filed  an  affidavit  of  defense,  aver- 
ring that  inasmuch  as  said  settlement  was 
made,  not  by  the  accounting  officers  of  the 
commonwealth,  but  by  other  persons  claim- 
ing to  act  for  them,  the  settlement  exhib- 
ited no  cause  of  action.  Held,  that,  in  the 
absence  of  an  averment  that  the  persons  so 
claiming  to  act  for  said  accounting  officers 
acted  in  the  premises  without  authority 
from  the  latter,  the  affidavit  of  defense  was 
insufficient  to  prevent  judgment.  Phila- 
delphia 6-  R.  R.  Co.  V.  Com.,  13  Am.  d* 
Eng.  R.  Cas.  365,  104  Pa.  St.  86. 

318.  What  defenses  are  open.  — 
Where  the  levy  by  a  county  clerk  on  the 
property  of  a  railroad  was  illegal  because 
the  levy  on  the  property  owned  by  the  com- 
pany on  August  I,  1875,  was  made  at  the 
rate  which  was  levied  on  property  owned 
by  individuals  on  August  i,  1874,  but  the 
company  paid  the  tax  so  illegally  levied  on 
the  property  owned  by  it  August  i,  1875, 
such  payment  should  be  allowed  it  as  a 
credit  in  an  action  against  it  under  a  new 
levy  made  on  its  property  under  the  Act  of 
April  22,  1879.  State  ex  rel.  v.  Missouri 
Pac.  R.  Co.,  92  Mo.  137,  6  S.  W.  Rep.  862. 
— Reviewing  State  ex  rel.  v.  Hannibal  & 
St.  J.  R.  Co.,  87  Mo.  236.— Followed  in 
State  ex  rel.  v.  Union  Trust  Co.,  92  Mo.  157. 

Under  Nev.  Gen.  St.  §  1205,  where  prop- 
erty is  claimed  for  taxation  by  two  different 
counties,  its  regular  assessment  by  one  of 
the  counties,  and  the  payment  of  the  taxes 
to  that  county  prior  to  the  commencement 
of  the  action  for  delinquent  taxes  in  the 
other  county,  constitute  a  complete  defenae 


994 


TAXATION,  319,  320. 


mi 


;Mi 


^» 


*«::?! 


^i 


to  the  latter  action.  State  v.  Central  Pac. 
R.  Co.,  21  jVin/.  172,  26  /*«<:.  ^<y>.  225,  1109. 

310.  Unavailing  defeases.  —  Under 
Ala.  Act  of  Feb.  9,  1S70  (declared  unconsti- 
tutional), the  auditor  instructed  the  tax 
collector  of  a  county  not  to  collect  of  the 
company  the  county  taxes  for  the  year  1 869, 
whereupon  the  tax  collector  did  not  collect 
such  taxes.  Held,  not  to  be  an  instruction 
as  to  any  matter  arising  under  the  Revenue 
Law  of  1868,  and  hence  not  binding  on  the 
county  officer ;  and  the  company  was  liable 
to  pay  the  county  tax  levied  for  the  year 
1869.  Perry  County  v.  Selma,  M.  &*  M.  R. 
Co.,  58  Ala.  546,  20  Am.  Ry.  Rep.  372. 

That  the  commissioners'  court  acquiesced 
in  the  unconstitutional  act  of  1870  which 
remitted  certain  taxes  assessed  against  a 
company,  by  not  requiring  the  tax  col- 
lector to  collect  or  account  for  the  said 
company's  tax  the  previous  year,  is  no  sur- 
render of  the  claim,  or  bar  to  its  present 
assertion.  Perry  County  v.  Selma,  M.  &»  M. 
R.  Co.,  58  Ala.  546,  20  Am.  Ry.  Rep.  372. 

In  a  proceeding  against  a  receiver  to  col- 
lect taxes  on  a  railroad,  levied  under  the 
law  of  1868,  the  auditor's  certificate  to  the 
county  assessor  as  to  the  number  of  miles 
of  track  in  the  county  is- not  a  condition 
precedent  to  the  right  to  collect  the  taxes. 
Such  facts  may  be  established  in  an  equita- 
ble proceeding  and  the  receiver  directed  to 
pay  the  taxes.  Perry  County  v.  Selma,  M. 
&»  M.  R.  Co.,  7  Am.  &*  Eng.  R.  Cat.  298, 
65  Ala.  391. 

The  reversal  of  a  decree  enjoining  the 
collection  of  a  special  assessment  on  rail- 
road property  removes  that  impediment  to 
the  recovery  of  a  judgment  on  the  assess- 
ment. Ottawa  V.  Chicago  &*  R.  I.  R.  Co., 
25  ///.  47. 

In  case  the  levy  of  an  invalid  tax  by  the 
state  board  of  equalization  is  brought 
about  by  the  landowner's  own  voluntary  act 
in  returning  the  land  as  "  railroad  track  " 
when  it  is  not  any  part  of  such  track,  a  pay- 
ment of  such  tax  must  be  regarded  as  a 
voluntary  payment,  in  respect  of  which  the 
law  affords  no  remedy ;  and  the  payment  of 
such  invalid  tax  will  furnish  no  defense 
against  an  application  for  judgment  for  taxes 
properly  levied  on  an  assessment  of  the 
property  by  the  local  assessor.  Chicago,  B. 
6*  Q.  R.  Co.  V.  People  ex  rel.,  136  ///.  660, 
27  A^.  E.  Rep.  200. 

The  fact  that  a  decree  has  been  rendered 
in  a  United  States  circuit  court  ei     ining  a 


city  from  the  collection  of  taxes  from  a 
company,  in  a  suit  instituted  by  a  stock- 
holder, to  which  the  company  was  neither 
privy  nor  party,  and  of  whose  proceedings 
no  benefit  was  claimed,  cannot  be  pleaded  in 
bar  of  a  recovery  of  municipal  taxes.  Daven' 
port  v.  Chicago,  R.  I.  &*  P.  R.  Co.,  38  Iowa 
633.— Approved  in  State  ex  rel.  v.  Keokuk 
&  W.  R.  Co.,  41  Am.  &  Eng.  R.  Cas.  694, 
99  Mo.  30,6 L.  R.  A.  222, 12  S.  W.  Rep.  290. 

The  provisions  of  the  statute  for  a  delin- 
quent list  are  merely  directory ;  a  failure 
to  comply  with  them  does  not  avail  the 
defendant  in  a  tax  suit.  State  v.  Central 
Pac.  R.  Co.,  10  Nev.  47. 

The  payment  of  a  tax  upon  the  franchise 
of  a  corporation,  valued  upon  erroneous 
principles,  is  no  defense  against  a  tax  legally 
levied  by  the  county  authorities  under  the 
general  law.  Wilmington,  C.  &*  A.  R.  Co. 
V.  Brunswick  County  Com'rs,  72  A^.  Car.  10. 

It  is  no  defense  to  a  legal  assessment  and 
claim  of  taxes  that  taxes  have  been  paid 
under  an  illegal  or  irregular  assessment. 
North  Carolina  R.  Co.  v.  Alamance  Com'rs, 
82  A^  Car.  259.— Reviewing  Richmond  & 
D.  R.  Co.  V.  Orange  County  Com'rs,  74  N. 
Car.  506. 

320.  Evidence  and  burden  of 
proof.— In  a  suit  to  collect  taxes,  tax  bills 
purporting  to  be  certified  by  duly  author- 
ized officers  are  presumed  to  be  correct, 
and  the  burden  of  proof  as  to  their  legality 
lies  upon  those  contesting  them.  Ketchum 
V.  Pacific  R.  Co.,  4  Dill.  {U.  S.)  41. 

Although  a  tax  bill  sued  on  describes  in- 
correctly the  property  on  which  the  tax  sued 
for  was  levied,  this  defect  is  cured  by  evi- 
dence, received  without  objection,  establish- 
ing that  the  property  was  correctly  described 
on  the  assessment  roll,  or  that,  if  it  was  not, 
defendant,  by  its  action  while  the  rolls  were 
open,  acquiesced  in  the  description  as  made 
and  waived  objections  thereto.  New  Or- 
leans V.  New  Orleans  &*  C.  R.  Co.,  i^  La. 
Ann.  650. 

In  a  suit  by  a  county  to  recover  the 
amount  of  taxer  assessed  by  the  board  of 
equalization  agrJnst  a  railroad,  the  state 
auditor's  certificate  to  the  county  court  is 
not  competent  evidence  to  prove  the  action 
of  the  board.  The  record  of  its  proceed- 
ings which  the  board  is  required  by  law  to 
keep,  or  its  exemplification,  is  the  best  and 
only  proper  evidence  for  that  purpose  nfien 
attainable.  Washington  County  v.  St.  Louis 
&*  /.  M.  R.  Co.,  58  Mo.  373. 


TAXATION,  321,  822. 


m 


taxes  from  a 

by  a  stock- 

'  was  neither 

i  proceedings 

be  pleaded  in 

axes.  Davtn- 

Co.,  38  Iowa 

el.  V.  Keokuk 

R.  Cas.  694, 

W.  Rep.  290. 

e  for  a  delin« 

ry;  a  failure 

lot  avail  the 

iite  V.  Central 

the  franchise 
>n  erroneous 
t  a  tax  legally 
es  under  the 
<S-  A.  K.  Co. 
2  JV.  Car.  10. 
sessment  and 
re  been  paid 
assessment. 
lance  Com'rs, 
Richmond  & 
Com'rs,  74  N. 

I>iirden     of 

axes,  tax  bills 
duly  author* 

0  be  correct, 
their  legality 

m.    Kttchum 

'•)  4'. 

1  describes  in« 
h  the  tax  sued 
cured  by  evi- 
ion,  establisli- 
ctly  described 

if  it  was  not, 
the  rolls  were 
ition  as  made 
0.  New  Or' 
?.  Co.,  35  La. 

recover  the 
the  board  of 
id,  the  state 
unty  court  is 
ve  the  action 
'  its  proceed* 
red  by  law  to 
the  best  and 
jurpose  n4ien 
>' V.  St.  Louis 


StmhU,  that  the  certificates  of  the  clerk 
of  a  county  court,  made  in  conformity  to 
the  provisions  of  the  statute,  as  to  the 
amount  of  taxes  due  from  a  railroad  are 
/rima/ariV evidence  of  the  latter's  liability. 
Kansas  City  v.  Hannibal  <S-  St.  J.  R.  Co.,  22 
Am.  &*  Eng-.  R.  Cas.  239,  81  Mo.  285. — 
Quoted  in  St.  Louis  &  S.  F.  R.  Co.  v.  Ap- 
person,  97  Mo.  300. 

The  order  of  a  county  court,  levying  rail- 
road taxes  for  omitted  years  under  Mo. 
Rev.  St.  1879,  §  6879,  which  recites  that  the 
years  were  omitted,  is  prima  facie  evidence 
of  such  omission,  and,  in  an  action  for  said 
taxes,  it  is  not  necessary  for  plaintiff,  in 
order  to  make  out  &  prima  facit  case,  to  in- 
troduce the  levy  of  those  years  made  upon 
property  other  than  railroad  property.  Stat* 
tx  rel.  V.  Hannibal  &*  St.  J.  R.  Co.,  41  Am. 
&*  Eng.  R.  Cas.  581,  10 1  Mo.  136,  13  S.  W. 
Rep.  505.— Reconciling  Kansas  City  v. 
Hannibal  &  St.  J.  R.  Co.,  81  Mo.  294. 

321.  Judgment,  and  its  effect.  — 
In  enforcing  a  road  tax  it  is  not  necessary 
to  render  a  separate  judgment  against  each 
separate  portion  of  railroad  track  located 
in  each  separate  road  district,  when  the  tax 
is  not  paid  in  any  of  the  districts,  but  the 
judgment  may  be  against  the  entire  track  in 
the  county,  for  all  the  taxes  levied  in  the 
several  districts.  The  whole  line  of  the 
railroad  in  the  county  constitutes  but  a 
single  and  entire  property.  If  any  tax  is 
paid,  that  part  of  the  road  so  taxed  will 
not  be  sold  for  the  road  tax  due  on  the 
track  in  other  road  districts.  Ohio  &*  M. 
R.  Co.  V.  Pecple  ex  rel.,  ttg  III.  207,  10  A': 
E.  Rep.  545. 

A  company  filed  objections  to  the  rendi- 
tion of  judgment  against  it  for  a  road  tax  of 
1889  for  these  reasons :  (i)  because  the  board 
of  supervisors  did  not  cause  such  tax  to  be 
levied  as  required  by  law ;  (2)  because  there 
was  Jno  order  of  record  showing  the  levy ; 
(3)  because  no  notice  was  given  to  the  com- 
pany to  appear  and  work  out  such  tax ;  (4) 
because  the  overseer  did  not  deliver  the  lii^t 
of  delinquent  road  tax  to  the  supervisor  in 
the  time  required  by  law ;  (5)  because  the 
county  collector  failed  to  designate  on  the 
tax  books  to  what  district  the  tax  belonged ; 
(6)  because  the  property  was  not  properly 
described  in  the  collector's  advertisement. 
The  court  sustained  the  objections.  Held, 
that  the  judgment  was  no  bar  to  a  further 
application  for  judgment  for  the  same  tax 
and  that  of  the  next  year.    PttpU  ex  rel.  v. 


Chicago  &*  A.  R.  Co.,  140  ///.  210,  29  JV.  E. 
Rep.  730. 

Under  Iowa  Revision,  §  3135,  it  is  proper 
for  a  district  court  to  render  judgment 
against  a  company  for  city  taxes  upon  a  cer- 
tain property  for  a  particular  year,  in  an  ac- 
tion by  a  municipal  corporation  for  the 
taxes  for  a  period  of  years,  where  the  com- 
pany does  not  controvert  its  liability,  but 
confesses  that  the  taxes  were  due  and  pay- 
able and  oilers  judgment  therefor.  The 
rase  does  not  come  within  §  3404.  Daven- 
port V.  Chicago,  R.  I.  6*  P.  R.  Co.,  38 
Iowa  633. 

322.  Recovery  of  interest,  penal- 
ties,  and  fees.*  — Where  a  suit  is  insti- 
tuted against  a  railroad  to  collect  a  tax,  and 
the  statutory  penalty  for  not  paying,  and  in- 
terest and  attorneys'  fees,  and  it  is  decided 
that  the  tax  is  void,  it  follows  that  the  com- 
pany is  not  liable  for  the  penalties,  interest, 
and  fees.  San  Bernardino  County  v.  South- 
ern Pac.  R.  Co.,  118  U.S.  417,  6  Sup.  Ct. 
Rep.  1 144. 

In  an  action,  under  Cal.  Political  Code, 
§  3670,  to  recover  delinquent  taxes  assessed 
against  a  railroad  operated  in  more  than  one 
county,  plaintid,  upon  a  judgment  in  its 
favor,  is  not  entitled  to  recover  interest  on 
the  taxes,  at  the  rate  of  two  per  cent,  per 
month,  from  the  time  they  became  delin- 
quent. Section  3803  only  authorizes  such 
interest  on  the  taxes  mentioned  in  the  sec- 
tions immediately  preceding  it.  People  v. 
North  Pac.  Coast  R.  Co.,  24  Am.  6-  Eng.  R. 
Cas.  610, 68  Cal.  531.  10  Pac.  Rep.  45. 

Taxes  are  not  "debts"  within  the  legal 
meaning  of  the  term,  and  in  the  absence  of 
a  statutory  provision  interest  cannot  be  re- 
covered thereon.  Louisville  &*  N.  R.  Co.  v. 
Com.,  41  Am.  &*  Eng.  R.  Cas.  595,  89  /fy. 
531,  12  S.  IV.  Rep.  1064.  Perry  County  V. 
Selma  &*  M.  R.  Co.,  65  Ala.  391. 

Mo.  Act  of  March  29,  1875,  §  4,  allows  a 
sum  equivalent  to  five  per  cent,  of  the  sum 
recovered  to  be  sued  for  as  attorneys'  fees 
"  whenever  any  railroad  company  shall  fail 
or  shall  have  heretofore  failed,  within  the 
time  prescribed  by  law,  to  pay  any  taxes  as- 
sessed and  levied  against  it,"  etc.  Held:  (i) 
that  the  petitions  in  this  suit  were  not  suits 
for  the  recovery  of  taxes,  within  the  mean- 
ing of  said  act ;  (2)  that  the  amicable  ar- 
rangement entered  into  between  the  parties 
to  settle  the  amount  of  taxes  due,  by  asking 

*See  also  ante,  301. 


OM 


TAXATION,  328-829. 


)>m.*' 


the  advice  of  the  court,  did  not  come  within 
the  act.    Ketchum  v.  Pacific  R.  Co.,  4  Dill. 

323.  Appeals.— A  foreclosure  suit  was 
brought,  and  the  municipal  corporation 
within  which  the  mortgaged  property  was 
situate  was  allowed  to  intervene  and  set  up 
a  claim  for  taxes  thereon.  Neltl,  that  the 
order  of  the  circuit  court  rejecting  such 
claim  was  binding  upon  the  corporation,  and 
where  the  amount  of  taxes  is  sufficient  to 
give  jurisdiction  to  the  supreme  court,  the 
corporation  is  entitled  to  an  appeal.  Savan- 
nah V.  Jtsup,  9  Am,  S*  Eng.  li.  Cas.  573,  106 
U.  S.  563,  I  Sup.  Ct.  Rep.  512. 

324.  Enforcement  by  mandamus. 
—  When  it  appeared  that  a  company  was 
the  owner  of  the  reversion  of  the  entire  real 
estate  constituting  its  roadbed,  the  court, 
for  the  purpose  of  shortening  litigation, 
expressed  its  opinion  that  the  defense  set 
up  by  the  railroad  in  the  return  against  the 
tax  in  question,  of  inability  to  pay  the  same, 
was  disproved  by  the  facts,  and  that  u.  had 
a  right,  in  view  of  its  debts,  to  require  the 
rent  reserved  on  its  lease  to  be  paid  to  it 
instead  of  its  stockholders,  and  that  if  the 
merits  were  to  be  disposed  of,  the  return 
would  present  no  adequate  reason  against 
issuing  a  peremptory  mandamus.  Silver- 
thorn  V.  Warren  R.  Co.,  33  A^.  /.  L.  373. 

325.  Summary  proceedings.— Upon 
appearance  of  a  taxpayer  in  summary  pro- 
ceedings under  Arizona  Revenue  Laws,  ch. 
7,  to  enforce  payment  of  delinquent  taxes, 
tlie  court  has  not  the  power  to  rectify  ex- 
cessive taxation,  except  in  cases  of  fraud. 
Atlantic  &*  P.  R.  Co.  v.  Yavapai  County, 
(Aris.)  39  Am.  &*  Eng.  R.  Cas.  543,  3i  Pac. 
Rep.  768. 

In  summary  proceedings  to  enforce  pay- 
ment of  delinquent  taxes,  it  is  error  to  fix 
penalties  and  percentages  at  a  gross  amount 
and  impose  them  upon  the  tax  both  upon 
railway  and  lands.  Atlantic  &*  P.  R.  Co.  v. 
Yavapai  County,  (Ariz.)  39  Am.  S-  E^g.  R. 
Cas.  543,  a  I  Pac.  Rep.  768. 

DC.  8ALX  or  LAHD8  lOB  HOH-PATMKITT— 
TAX  TITLES. 

320.  Application  for  order  to  sell. 

— The  amended  charter  of  the  city  of  Chi- 
cago adopted  in  Feb.,  1857,  only  provides  for 
one  tax  collector  and  his  assistants  ;  and  an 
application  to  a  court  for  an  order  to  sell 
lands  for  taxes  must  be  by  the  collector,  and 


not  by  a  special  collector.  Chicago  v.  Rock 
Island  R.  Co.,  20  ///.  386.— LIMITED  in  Chi> 
cago  V.  Colby,  20  III.  614. 

327.  Conduct  and  validity  of  the 
sale.— When  taxes  are  delinquent  upon  a 
whole  section,  belonging  to  one  owner  and 
lying  in  one  contiguous  body,  it  is  the  duty 
of  the  county  treasurer,  under  the  Iowa 
statute,  to  advertise  the  whole  tract  in  a 
single  description.  Cedar  Rapids  &*  M.  R, 
R.  Co,  v.  Carroll  County,  41  Iowa  1 53. 

Lands,  delinquent  for  railroad  taxes,  were 
not  publicly  offered  for  sale,  and  no  one  bid 
for  them,  or  offered  to  take  them.  After  the 
sale,  the  treasurer,  in  pursuance  of  a  pre- 
vious arrangement  with  one  representing 
the  company,  executed  and  delivered  tax 
certificates  for  such  lands  to  such  person, 
receiving  receipts  for  the  tax.  Held,  that 
such  certificates,  and  the  tax  title  attempted 
to  be  created,  were  thereby  absolutely  void, 
even  as  against  one  claiming  thereunder  as 
purchaser  under  a  warranty  deed,  without 
notice.  Truesdell  v.  Green,  7  Am.  &*  Eng. 
R.  Cas.  369,  57  Iowa  215,  10  N.  W.  Rep.  630. 

Where,  on  payment  of  a  privilege  tax  by 
a  company,  part  of  a  tract  of  land  owned  by 
it  is  exempt  because  used  in  operating  the 
road,  and  part  is  not  exempt,  a  tax  sale  of 
the  whole  is  good  as  to  the  part  not  ex- 
empt, if  the  taxes  due  thereon  are  not  paid 
or  tendered  before  sale.  Lewis  v.  Vicksburg 
4-  M.  R.  Co.,  67  Miss.  82.  6  So.  Rep.  773. 

328.  Certificate  and  deed.  — Minn. 
Laws  1874,  ch.  I,  contemplates  that  the 
auditor's  certificate  of  tax  sale  shall  be  exe- 
cuted at  the  time  of  the  sale,  or  within  such 
time  thereafter  as  may  be  reasonably  neces- 
sary for  that  purpose.  A  certificate  not 
executed  until  many  years  after  the  sale  is 
without  statutory  authority,  and  is  of  no 
effect.  Stewart  v.  Minneapolis  6*  St.  L.  R. 
Co.,  36  Minn.  355.— Followed  in  Gilfillan 
V.  Chatterton,  37  Minn.  11. 

If  one  procures  the  land  of  another  to  be 
assessed  to  himself  with  hit  own  land  as 
one  tract,  and  the  whole  (being  the  smallest 
legal  subdivision)  is  sold  for  the  entire 
taxes,  he  becoming  the  purchaser,  no  title 
is  acquired  as  to  the  land  of  such  other, 
and  the  latter  may  have  a  cancellation  of  the 
tax  deed.  Ragsdale  v.  Alabama  G.  S.  R. 
Co.,  67  Miss.  106,  6  So.  Rep.  630. 

320.  Tax  titles,  and  rights  of  pur- 
chasers.—  One  who  buys  the  lands  of  a 
company  at  a  delinquent  tax  sale  has  a 
right  to  a  personal  judgment  against  th« 


TAXATION,  330. 


997 


It'cqfa  V.  XocM 
UTED  IN  Chi* 

dity  of  the 

quent  upon  a 
ne  owner  and 

it  is  the  duty 
ler  the  Iowa 
)le  tract  in  a 
pi'Js  6-  AI.  It, 
wa  153. 
id  taxes,  were 
id  no  one  bid 
:m.  After  the 
ice  of  a  pre- 

representing 
lelivered  tax 
such  person, 
.  //M,  that 
tie  attempted 
iolutely  void, 
iiereunder  as 
eed,  without 
Am.  &•  Eng. 

IV.  Rep.  630. 
irilege  tax  by 
ind  owned  by 
iperating  the 
a  tax  sale  of 
part  not  ex- 
are  not  paid 

V.  Vicksiurg 
Rep.  773. 

ed.  —  Minn. 
tes  that  the 
shall  be  eze- 
:  within  such 
nably  neces- 
rtificate  not 
it  the  sale  is 
nd  is  of  no 
**  St.  L.  R. 
IN  Gilfillan 

nother  to  be 
)wn  land  as 
the  smallest 
the  entire 
iser.  no  title 
such  other, 
lation  of  the 
»«  G.  S.  R. 

its  of  par- 
lands  of  a 
sale  has  a 

against  the 


company  for  the  taxes,  penalty,  interest, 
and  costs,  upon  a  failure  of  his  title,  under 
the  Arkansas  statute  providing  that  if  the 
sale  shall  prove  invalid  the  purchaser 
shall  receive  from  the  proprietor  of  such 
land  tlie  amount  of  taxes,  interest,  penalty, 
and  the  cost  of  advertising  and  the  amount 
of  taxes  subsequently  paid.  St.  Lout's,  I, 
M.  &*  S.  R.  Co.  V.  Alexander,  49  Ark.  190, 
4  S.  W.  Rep.  753. 

The  rights  of  a  purchaser  at  a  tax  sale  are 
not  extinguished  by  ad  quod  damnum  pro- 
ceedings to  which  lie  has  not  been  made  a 
parly  by  proper  notice.  Garmoe  v.  Stur- 
geon,  65  Iowa  147. 

An  individual  entered  into  a  contract  in 
writing,  in  1868,  with  a  company,  to  pur- 
chase certain  real  estate,  and  covenanted  to 
pay  all  taxes  which  should  be  lawfully  im- 
posed on  the  premises.  Under  the  contract 
he  went  into  possession  of  the  land,  paid  a 
small  portion  of  the  purchase  money,  and 
made  valuable  improvements.  He  defaulted 
as  to  the  payment  of  taxes  for  the  years 
1873,  1874,  1875,  and  1876.  In  May,  1877, 
th'.re  was  a  settlement  between  him  and 
the  company,  and  he  relinquished  all  his 
right  in  the  land  and  all  his  improvements 
to  the  company ;  the  company  accepted  the 
surrender  of  his  written  contract,  and  re- 
leased all  its  claims  against  him  under  the 
covenants  thereof.  Held,  that  he  was  thereby 
relieved  of  all  duty  or  obligation  to  pay  past 
or  future  taxes  on  the  premises;  and  after 
such  settlement,  he  was  not  debarred  from 
acquiring  a  valid  tax  title  to  the  premises, 
on  account  of  his  former  relation  with  the 
company,  under  the  contract  of  purchase. 
Skoup  V.  Central  Branch  U.  P.  R.  Co.,  5 
Am.  S^  Eng.  R.  Cas.  125,  24  Kan.  547. 

The  omission  of  the  name  of  the  person 
to  whom  a  tract  of  land  is  assessed,  from 
the  notice  of  the  tax  sale,  and  from  the 
notice  of  the  expiration  of  the  time  for  re- 
demption, will  not  invalidate  the  title  con- 
veyed by  the  tax  deed  to  the  tax  purchaser 
of  the  real  estate.  Skoup  v.  Central  Branch 
U.  P.  R.  Co.,  5  Am.  &*  Eng.  R.  Cas.  125, 
34  Kan.  547. 

Land  was  purchased  on  October  21,  1868, 
under  Kan.  Act  of  Feb.  33,  1866,  providing 
for  the  sale  of  public  lands  to  aid  in  the 
construction  of  certain  railroads,  and  one 
half  of  the  purchase  money  was  paid  at  the 
time  of  the  purchase  in  accordance  with 
said  act.  Neld,  thai  the  land  was  t:ixalilc 
for  the  year  1869,  and  that  a  person  rn'-- 


chasing  said  land  at  a  tax  sale  held  May  3, 
1870,  for  the  taxes  then  due  thereon,  and 
afterwards  procuring  a  tax  deed  for  such 
land,  would  obtain  just  the  interest  which 
the  original  purchaser  had.  Morgan  v. 
Clay  County  Com'rs,  27  Kan,  229.— FOLLOW- 
ING Oswalt  V.  Hallowell,  15  Kan.  154; 
Prescott  V.  Beebe,  17  Kan.  330. 

A  purchaser,  at  a  tax  sale  in  North  Da- 
kota, of  lands  in  a  land  grant  which  by  the 
laws  of  the  United  States  were  exempt  from 
taxation  by  reason  of  non-payment  of  the 
cost  of  survey,  cannot  recover  the  price 
from  the  county  without  showing  that  the 
county  treasurer  knew  of  facts  making  the 
tax  illegal.  Stutsman  County  v.  Wallace, 
142  U.  S.  293, 12  Sup.  Ct.  Rep.  327. 

330.  Redemption.— Ark.  Act  of  1869, 
providing  that  railroad  companies  to  whom 
land  that  has  been  forfeited  to  the  state  for 
taxes  should  be  donated  or  subscribed  by 
the  former  owners  to  aid  in  the  construc- 
tion of  their  roads  might  redeem  from 
the  state  without  payment  of  the  taxes 
and  costs  due  on  them,  applies  to  lands 
forfeited  under  the  general  revenue  laws 
and  not  to  those  sold  under  the  Overdue- 
tax  Law  of  1 88 1.  The  latter  cannot  be  re- 
deemed except  upon  payment  of  the 
amount  due  the  state  and  the  cost  of  the 
judicial  proceedings.  Files  v.  State  *x  rtl., 
48  Ark.  529.  3  S.   W.  Rep.  817. 

An  owner  of  land  redeemed  from  a  tax 
sale  thereof  received  from  the  auditor  a 
certificate  showing  that  he  had  paid  the 
principal,  penalty,  and  interest  of  the  taxes 
for  which  the  sale  was  made,  together  with 
the  principal,  penalty,  and  interest  of  the 
taxes  for  certain  subsequent  years,  which 
had  been  paid  by  the  purchaser.  Held,  that 
he  was  entitled  to  redeem  from  a  future  sale 
for  certain  special  taxes,  levied  for  one  of 
the  years  covered  by  such  certificate,  but 
which  were  not  included  in  those  paid  by 
the  prior  purchaser,  although  a  deed  had 
been  executed  upon  such  sale.  Iowa  Falls 
6-  S.  C.  R.  Co.  V.  Storm  Lake  Bank,  55  Iowa 
696.  8  N.  W.  Rep.  649. 

Where,  after  land  has  been  sold  for  taxes, 
a  company  condemns  (though  without  no- 
tice to  the  tax  purchaser)  and  takes  posses- 
sion of  a  right  of  way  over  the  land,  it  is 
entitled  to  redeem  from  the  tax  sale,  and 
to  personal  service  of  notice  of  the  time  when 
the  period  to  redeem  expired,  and  it  is  not 
affected  by  a  tax  deed  made  without  such 
notice.     Garmoe  v.  Sturgeon,  65  Iowa  147. 


PI 


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M8 


X.  umBixi 


TAXATION,  831-834. 


rOX  UXLAWrUL  taxatiov. 
I.  /»  Gttural. 


331.  Abatement— RefUndlngr*— The 

proper  course  of  proceeding,  under  North 
Carolina  statutes,  for  refunding  an  illegal 
tax  which  has  been  paid  under  protest,  is 
for  the  commissioners  of  the  county  to  re- 
fund the  county  tax  illegally  collected,  and 
to  certify  to  the  auditor  of  the  state  the 
amount  of  state  tax  illegally  paid  into  the 
treasury,  and  it  is  the  auditor's  duty  to  draw 
his  warrant  upon  the  treasurer  for  the 
amount  due  the  taxpayer.  NortA  Carolina 
a.  Co.  V.  Alamanc*  Cem'rs,  77  N.  Car.  4. 

Under  New  Hampshire  laws  a  railroad 
corporation  is  entitled  to  interest  on  the 
sum  abated  from  a  tax  assessed  against  it, 
payment  of  which  it  made  under  protest. 
BottOH  6*  M.  R.  Co.  V.  Statt,  25  Am.  &* 
Etig.  R.  Cat.  538,  63  N.  H.  571,  4  Atl. 
Rep.  571. 

332.  Action  to  set  aside  sale 
and  deed. — Where  railroad  property  has 
been  sold  by  the  tax  collector,  for  the  non- 
payment of  taxes  which  have  been  remitted 
by  act  of  the  legislature  before  the  sale,  and 
the  purchaser  makes  no  attempt  to  assert 
his  right  to  the  property,  but  allows  the 
company  to  retain  possession,  a  court  of 
equity  will  entertain  a  bill  by  the  company 
to  annul  the  sale,  cancel  the  deed  made  to 
the  purchaser,  and  enjoin  him  from  assert- 
ing any  claim  to  the  property.  Mobile  &* 
G.  R.  Co.  V.  Peebles,  47  Ala.  317. 

Relief  against  a  tax  sale  under  an  invalid 
tax  can  be  obtained  either  by  certiorari  to 
bring  up  the  record  of  the  assessment  for 
the  purpose  of  having  it  quashed,  or  by  bill 
in  equity  to  declare  the  sale  void  and  enjoin 
the  setting  up  of  title  under  it.  Alexandria 
C.,R.&»  B.  Co.  V.  District  of  Columbia,  5 
Mackey  {D.  C.)  376. 

In  an  action  to  set  aside  a  tax  sale  of  land 
embraced  in  a  railway  grant,  the  certificate 
of  the  secretary  of  the  interior  is  admissible 
to  show  that  other  lands  in  the  same  section 
had  been  earned  and  were  approved  to  the 
company  before  the  taxes  upon  which  the 
sale  was  made  had  accrued.  Chicago,  B.  A* 
Q.  R.  Co.  V.  Holdsvforth,  47  Iowa  20.— DIS- 
TINGUISHED IN  Dickerson  v.  Yetzer,  53 
Iowa  681. 

333.  Affidavit  oi  Illegality.— To  be 
entitled  to  the  remedy  provided  by  Georgia 
Act  of  1874,  a  company  must  make  the  re- 
turns for  taxation  as  provided  by  that  act 


before  execution  it  inued  against  it  as  a 
defaulting  taxpayer.  Macon  d«  A.  R.  Co. 
V.  Goldsmith,  62  Ga.  463.  —  DISTINGUISH- 
ING Goldsmith  v.  Southwestern  R.  Co.,  62 
Ga.  495. 

In  order  to  resist  the  process  of  the  comp- 
troller-general  to  collect  a  tax  assessed  by 
him  by  affidavit  of  illegality  returnable  to 
the  superior  court  of  Fulton  county,  under 
Ga.  Act  of  February  28,  1874,  and  amend- 
ments thereto,  the  company  should  have 
complied  with  the  condition  precedent  re- 
quired by  the  Act  of  1875,  §  12,  and  should 
have  made  the  return  of  its  income  therein 
required.  Goldsmith  v.  At4gusta  &*  S,  R, 
Co.,  62  Ga.  468. 

Affidavit  of  illegality  is  not  a  remedy  pro- 
vided  by  law  for  resisting  Sifi.fa,  issued  by 
the  comptroller-general  for  railroad  taxes 
except  where  the  assessment  andyf./<i.  are 
based  upon  a  return  of  property  made  by 
the  company  for  the  given  year.  If  the 
comptroUer-general,  for  lack  of  the  proper 
annual  return  of  the  company's  property, 
has  proceeded  against  the  company  as  a 
defaulter,  assessing  both  tax  and  penalty, 
there  may  be  a  remedy  in  equity  by  injunc- 
tion, but  the  remedy  at  law  provided  by  the 
Act  of  1874,  as  modified  and  continued  in 
force  by  subsequent  acts,  does  not  apply. 
Goldsmith  v.  Georgia  R.  Co.,  62  Ga.  485. 

Where  a  company  fails  to  make  a  return 
of  its  property  for  taxation  the  court  has 
no  jurisdiction  to  try  an  affidavit  of  illegal- 
ity, and  should  dismiss  it.  Goldsmith  v. 
Southwestern  R.  Co.,  62  Ga.  495. — Distin- 
guished IN  Macon  &  A.  R.  Co.  v.  Gold- 
smith, 62  Ga.  463. 

No  proper  return  having  been  made  by  a 
company,  such  as  is  required  by  Ga.  Act  of 
1874,  as  a  condition  precedent  to  the  rem- 
edy by  affidavit  of  illegality  returnable  to 
the  superior  court  of  Fulton  county,  the 
affidavits  should  have  been  dismissed  for 
want  of  jurisdiction— that  remedy  being 
good,  and  that  court  having  jurisdiction 
only  when  such  return  is  made.  The  rem- 
edy in  equity  by  bill  for  injunction  and  re- 
lief is  not  before  the  court.  Goldsmith  v. 
Central  R.  Co.,  62  Ga.  509. 

334.  Certiorari— Petition.— The  pro- 
ceeding by  a  taxpayer  in  court  contemplated 
by  Cat.  Act  of  i860  is  a  proceeding  by  cer* 
tiorari  in  the  usual  form,  and  the  issuance 
of  the  writ  is  necessary  to  stay  proceedings 
beyond  ten  days,  though  it  seems  that  no 
formal  injunction  is  necessary.    California 


TAXATION,  335-337. 


909 


ainst  it  u  • 
V*  A.  R.  Co. 

USTINCUISH- 

n  R.  Co.,  63 

of  thecomp- 
aisessed  by 
eturnable  to 
ounty,  under 
and  amend- 
should  have 
recedent  re« 
,  and  should 
:ome  therein 
Ua  6-  S.  R, 

remedy  pro- 
fa.  issued  by 
liiroad  taxes 
ndyf./a.  are 
irty  made  by 
:ar.  If  the 
f  the  proper 
\'%  property, 
mpany  as  a 
and  penalty, 
ty  by  injunc* 
ivided  by  the 
continued  in 
s  not  apply. 

Ga.  485. 
ake  a  return 
le  court  has 
it  of  illegal- 
loldsmith  v. 
)5-— DlSTIN- 
[^o.  V.  Gold- 

1  made  by  a 
yr  Ga.  Act  of 
to  the  rem* 
iturnable  to 
county,  the 
ismissed  for 
medy  being 
jurisdiction 
The  rem- 
tion  and  re- 
foldsmitk  V. 

• — The  pro- 
•ntemplated 
ling  by  cer- 
he  issuance 
;>roceedings 
:ms  that  no 
California 


Northtrn  R.  C0.  v.  Butti  County  Sup'rt,  18 
Cal.  671. 

N.  H.  Gen.  Laws,  ch.  61,  §9,  provides 
that  any  person  aggrieved  by  the  decision 
of  the  board  of  tax,  assessors  shall  apply  by 
petition  for  redress,  within  one  year,  to  the 
supreme  court,  which  shall  give  notice  to 
the  parties  and  grant  a  hearing.  Held,  that 
the  special  remedy  therein  provided  must 
be  followed.  Nashua  &*  L.  It.  Co.  v.  Nashua, 
62  N.  H.  602. 

33S.  Replevin.— Under  the  statutes  of 
Missouri  back  taxes  upon  real  estate  cannot 
be  collected  out  of  the  personal  property  of 
subsequent  purchasers  of  the  realty  ;  and  if 
such  property  is  levied  upon  the  owner  may 
maintain  replevin  therefor.  So  held,  where 
a  railroad  was  sold  after  a  tax  was  levied 
thereon  and  before  payment.  Atlantic  &» 
P.  R.  Co.  v.  Cleino,  2  Dill.  (U.  S.)  175. 

The  provision  of  the  charter  of  the  city 
of  Buffalo  adopted  in  1870,  declaring  that 
goods  and  chattels  upon  real  estate  upon 
which  taxes  are  assessed  shall  be  deemed  to 
belong  to  the  person  to  whom  the  land  is 
assessed,  does  not  apply  to  property  belong- 
ing to  another  person  in  no  way  liable  for 
the  tax  upon  the  land,  and  the  collector 
cannot  lawfully  take  such  property  for  the 
taxes  on  the  realty.  So  held,  where  an  en- 
gine and  cars  were  seized  for  taxes  while 
temporarily  standing  on  a  private  track, 
to  satisfy  taxes  on  the  land  on  which  the 
track  was  laid.  Lake  Shore  &*  M.  S,  R. 
Co.  V.  Roach,  i  Am.  *•  Eng.  R.  Cas.  184,  80 

^.  y.  339. 

Where  such  property  is  taken,  an  action 
by  the  owner  to  recover  possession  thereof 
may  be  maintained  against  the  tax  collect- 
or ;  and  such  property  cannot  be  said  to  be 
taken  for  a  tax  within  the  meaning  of  N.  Y. 
Code  Pro.  §  207 ;  nor  under  the  provision 
of  2  N.  Y.  Rev.  St.  522,  §  4,  which  pro- 
vides that  no  replevin  shall  lie  for  any 
property  taken  by  virtue  of  any  warrant  for 
the  collection  of  taxes.  Lake  Shore  &*  M. 
S.  R.  Co.  V.  Roach,  i  Am.  &*  Eng.  R.  Cas. 
184,  80  N.  Y.  339. 

3.  Action  to  Recover  Back. 

830.  When  an  action  will  lie.— 

Ordinarily  a  party  paying  u  tax  illegally  as- 
sessed and  collected  has  an  ample  remedy 
at  law  by  an  action  either  of  trespass  or 
of  assumpsit.  So  where  a  statute  requires 
rolling  stock  to  be  taxed  in  the   several 


counties,  towns,  and  cities  pro  rata  accord- 
ing to  the  length  of  the  track,  and  a  com- 
pany is  taxed  where  it  has  only  an  easement 
or  mere  privilege  of  running  its  trains  over 
the  track  of  another  company,  the  company 
taxed,  after  paying  the  tax,  may  maintain 
an  action  against  the  county  to  recover  it 
back.  Cook  County  v.  Chicago,  B.  fi*  Q.  R. 
Co.,  3S///.  460. 

Money  voluntarily  paid  with  full  knowl- 
edge of  the  facts  cannot  be  recovered  back, 
and  this  rule  applies  to  a  voluntary  payment 
of  taxes ;  but  the  rule  does  not  apply  where 
the  tax  paid  has  been  set  aside  by  a  court. 
Mayor,  etc.,  of  Jersey  City  v.  Riker,  38  N. 
J.  L.  225. 

Plaintiff  company,  having,  under  protest, 
paid  to  the  collector  of  defendant  city  the 
taxes  assessed  upon  its  property,  which  was 
exempt  from  taxation,  can  recover  back 
only  such  of  the  taxes  as  were  collected  for 
the  city's  benefit,  and  not  the  state,  county, 
and  state  school  taxes,  which  defendant 
collected  only  as  agent,  and  had  paid  over 
as  directed  by  statute.  Vermont  C.  R.  Co. 
v.  Burlington,  28  Vt.  193. 

Where  a  board  of  supervisors  "refused  "  to 
act  upon  a  cla<m  presented  under  Va.  Code, 
§  844,  claimant  may  sue  the  county  under  sec- 
tion 843.  Prince  George  County  v.  Atlantic, 
M.  &*  O.  R.  Co.,  87  Va.  283.  12  S.  E.  Rep. 
667.  —  Distinguishing  Botetourt  County 
V.  Burger,  86  Va.  530;  Fry  v.  Albemarle 
County,  86  Va.  195. 

337.  and  ivlicn  not.— To  entitle 

one  who  has  voluntarily  paid  taxes  to  have 
the  same  refunded,  in  accordance  with 
Iowa  Revision,  §  762,  the  tax  must  be  shown 
to  be  erroneous  or  illegal  in  assessment  or 
levy.  An  action  will  not  lie  to  recover  from 
the  county  for  taxes,  paid  under  a  misappre- 
hension in  regard  to  the  ownership  of  the 
taxed  property,  where  the  taxpayer  had  full 
knowledge  of  all  the  facts  upon  which  his 
claim  of  title  is  based.  Dubuque  &»  S.  C. 
R,  Co.  v.  Webster  County  Sup'rs,  40  lo^va 
16. — Distinguished  in  Butler  v.  Fayette 
County  Sup'rs,  46  Iowa  326. 

No  action  can  be  maintained  against  a 
collector  by  one  who  has  been  compelled  to 
pay  taxes  levied  to  meet  the  interest  on 
illegal  bonds,  for  the  recovery  of  the  amount. 
The  remedy  of  the  taxpayer  is  a  proceeding 
to  arrest  the  collection  of  the  tax.  Ranney 
v.  Bader,  67  Afo.  476.— FOLLOWING  Rubey 
V.  Sbain,  54  Mo.  207.  REVIEWING  North 
Mo.  R.  Co.  V.  Maguire.  49  Mo.  483. 


1000 


TAXATION,  338,  330. 


m 


i  t-'i 


The  mere  fact  that  certain  railroad  lands 
were  unpatented  at  the  time  taxes  were 
levied  thereon  will  not  authorize  the  bring- 
ing of  an  action  to  recover  back  the  taxes 
so  paid.  WtltoH  y.  Mtrrick  County  Com'rs, 
17  Am.  &»  Eng.  R.  Cat.  436,  16  Nth.  83, 
ioN.  W.  Rep,  III. 

338.  What  la  a  Toluntary  payment. 
— Where  two  persons  claim  the  same  lands 
under  different  ^ants  from  the  United 
States,  and,  pending  litigation  to  settle  the 
title,  one  of  the  parties  having  refused  to 
pay  taxes  un  the  lands  assessed  against  him, 
the  other,  without  request  to  do  so,  pays 
such  taxes,  he  cannot  recover  back  the 
amount  so  paid.  Iowa  Homestead  Co.  v. 
Dts  Moines  N.  &*  R.  Co.,  17  IVal/.  {U. 
S')  153.  —  Distinguished  in  American 
Emigrant  Co.  v.  Iowa  R.  Land  Co.,  52 
Iowa  323.  Followed  in  United  States  v. 
Des  Moines  N.  &  R.  Co..  142  U.  S.  510; 
Dubuque  &  S.  C.  R.  Co.  v.  Des  Moines 
Valley  R.  Co.,  S4  Iowa  89.  Reviewed  in 
Bullard  v.  Des  Moines  &  Ft.  D.  R.  Co.,  14 
Am.  &  Eng.  R.  Cas.  529,  62  Iowa  382. 

Certain  lands  granted  to  a  railroad  by 
the  United  States  were  taxed  before  the 
company  obtained  a  patent  therefor.  The 
company  paid  the  tax  under  protest,  but 
before  demanded,  and  before  any  effort  to 
levy  on  property.  It  was  afterwards  judi- 
cially determined  that  the  lands  were  not 
taxable.  Held,  not  such  compulsory  pay- 
ment as  to  give  a  right  to  recover  them 
back,  in  the  absence  of  any  statute  giving 
such  right.  Union  Pac.  R.  Co.  v.  Dodge 
County  Com'rs,  98  U.  S.  541. 

Taxes  paid  under  a  mistake  of  law  cannot 
be  recovered  back  unless  the  payment  was 
involuntary  ;  and  the  rule  which  treats  the 
payment  of  taxes  as  involuntary,  where  the 
tax  collector  has  authority  to  levy  and  sell 
on  the  refusal  to  pay,  does  not  apply  to  the 
payment  of  taxes  by  railroad  corporations,  as 
against  which  the  collection  must  be  en- 
forced by  judicial  proceedings.  Therefore  the 
payment  by  appellant  of  the  taxes  it  seeks  to 
recover  back  was  voluntary,  and  not  under 
compulsion,  and  it  cannot  recover.  More- 
over, as  a  portion  of  the  property  upon 
which  the  taxes  were  paid  was  legally  liable 
therefor,  the  payment  was  not  wholly  with- 
out consideration,  and  for  that  reason  the 
rule  allowing  a  recovery,  even  if  the  pay- 
ment had  been  under  compulsion,  would 
not  apply.  Nor  do  these  cases  belong  to 
that  dais  in  which  honor  or  good   con- 


science requires  the  taxes  to  be  refunded. 
Louisville  d^  A^  R.  Co.  v.  Hopkins  County, 
37  Am.  &»  Eng.  R.  Cas.  400,  87  Ky.  605. 
9  S.  IV.  Rep.  497.— Quoting  Fecheimer  v. 
Louisville,  84  Ky.  306.  Reviewing  Louis- 
ville V.  Anderson,  79  Ky*.  334. 

When  the  collection  of  taxes  cannot  be 
enforced  except  by  suit,  as  in  case  of  rail- 
roads, a  payment  by  the  taxpayer  without 
suit  will  be  regarded  as  voluntary,  and  he 
cannot  recover  back  the  amount  thus  paid, 
upon  the  ground  that  the  taxes  were  col- 
lected without  legal  authority,  and  were 
paid  under  a  mistake  of  law.  It  is  only 
where  the  collection  of  taxes  can  be  en- 
forced summarily  that  such  a  payment  will 
not  be  regarded  as  voluntary.  Louisville  &* 
N.  R.  Co.  V.  Com.,  41  Am.  6-  Eng.  R.  Cas. 
S9S.  89  A>.  S3'.  >2  •S'.  W'.  AV/.  1064. 

A  collector  of  taxes  for  a  town  through 
which  a  railroad  extended  called  at  the 
office  of  the  company  in  New  York,  and 
there  exhibited  to  its  treasurer  a  warrant 
and  tax  list  issued  by  the  board  of  super- 
visors of  the  county,  commanding  him  to 
collect  a  tax  of  the  company,  and  requested 
its  payment;  and  the  treasurer,  with  knowl- 
edge of  all  the  facts  touching  the  liability 
of  the  company,  paid  the  amount  of  the  tax 
to  the  collector  without  objection  or  pro- 
test. Held,  that  the  company  could  not  re- 
cover back  the  amount  from  the  collector, 
although  it  was  demanded  from  him  before 
he  paid  it  to  the  county  treasurer,  and  there 
was  a  defect  in  the  assessment,  which  ap- 
peared from  the  warrant,  rendering  the  tax 
void.  Mew  York  &•  H.  R.  Co.  v.  Marsh,  12 
N.  Y,  308,  —  Distinguishing  Corlies  v. 
Waddell,  I  Barb.  (N.  Y.)35S. 

330.  What  is  an  involuntary  pay- 
ment.—Whttc  all  steps  for  determining 
the  amount  of  a  tax  upon  personal  property 
have  been  taken,  the  tax  roll  is  complete 
and  in  the  treasurer's  hands,  tlie  taxes  due. 
and  it  is  made  the  duty  of  the  treasurer  at 
a  specified  date  to  issue  a  warrant  to  the 
sheriff  to  collect  all  unpaid  taxes  on  per- 
sonal property,  and  the  duty  of  the  sheriff 
within  sixty  days  thereafter  to  levy  upon 
and  sell  sufficient  personal  property  to  pay 
such  taxes,  penalty,  and  costs,  and  no  dis- 
cretion is  given  to  any  one  to  change  the 
amount  of  the  tax,  or  the  time  or  manner 
of  its  collection,  a  payment  to  the  treasurer 
of  the  tax,  protesting  its  illegality,  declaring 
that  payment  is  made  solely  to  avoid  the 
issue  of  process,  and  asserting  an  intention 


TAXATION,  340,  841. 


1001 


be  refunded. 
bkins  County, 
87  A>.  605. 
Pecheimer  v. 
wiNO  Louis* 

!S  cannot  be 
case  of  rail- 
lyer  without 
tary.  and  he 
nt  thus  paid, 
es  were  col- 
r,  and  were 
It  is  only 

can  be  en« 
tayment  will 
Louisville  &* 
"ing.  R.  Cas. 
1064. 

wn  through 
lied  at  the 

York,  and 
r  a  warrant 
•d  of  super- 
ing  him  to 
d  requested 
with  knowl- 
Lhe  liability 
t  of  the  tax 
ion  or  pro- 
>uld  not  re- 
le  collector, 
him  before 
r,  and  there 
:,  which  ap- 
ringthe  tax 
,  Marsh,  13 

Corlies  v. 

tary  pay- 

etermining 
al  property 
s  complete 

taxes  due. 
reasurer  at 
ant  to  the 
es  on  per- 
the  sheriff 

levy  upon 
erty  to  pay 
nd  no  dis- 
change  the 
or  manner 
e  treasurer 
',  declaring 

avoid  the 
I  intention 


to  sue  for  the  sum  illegally  paid,  should  he 
considered  an  involuntary  payment,  or  one 
made  to  prevent  an  immediate  seizure  of 
(he  taxpayer's  property,  although  such  pay- 
ment was  made  seventeen  days  before  the 
time  fixed  for  the  treasurer  to  issue  his 
warrant.  Kansas  Pac.  R.  Co.  v.  Wyandottt 
County  Com'rs,  16  Kim,  587. 

A  payment  of  an  illegal  tax  item,  the 
treasurer  refusing  to  receive  or  to  receipt 
for  any  tax  unless  the  illegal  portion  was 
also  paid,  and  where  plaintiff  protested 
against  the  illegality,  and  stated  that  the 
payment  was  made  solely  to  avoid  the  issue 
of  process,  and  gave  notice  that  an  action 
would  be  brought  to  recover  that  which  was 
illegally  exacted,  is  an  involuntary  payment. 
Atchison,  T.  6-  S.  F.  R.  Co.  v.  Atchison 
County  Com'rs,  47  Kan.  72a,  38  Pac.  R»p. 
999.  —  Following  Kansas  Pac.  R.  Co.  v. 
Wyandotte  County  Com'rs,  16  Kan.  587. — 
Followed  in  Atchison,  T.  ft  S.  F.  R.  Co. 
V.  Atchison,  47  Kan.  712. 

When  an  attorney  is  sent  to  pay  the  legal 
and  valid  taxes  assessed  against  his  client 
and  oilers  to  pay  illegal  taxes,  of  the  illegal- 
ity of  which  he  is  unaware  at  the  time,  the 
client,  after  discovering  such  illegality,  is 
not  estopped  from  disputing  such  taxes. 
St.  Louis  A-  S.  F.  R.  Co.  v.  Apptrson,  97 
Mo.  300,  10  5.  W.  R*p.  478. 

A  payment  to  the  county  treasurer  by  an 
express  company  of  an  illegal  tax  on  its 
gross  receipts  from  interstate  business,  un- 
\^r  protest  and  with  notice  of  an  intention 
to  bring  action  to  recover  back  the  amount 
pa'l,  is  an  involuntary  payment  when  made 
t'  ivoid  the  penalties  imposed  by  Ohio 
Rev.  St.  §  2843,  and  an  action  may  be  main- 
tained to  recover  back  the  amount  so  paid. 
Such  payment  of  the  illegal  tax,  under  pro- 
test and  with  notice,  becomes  involuntary 
by  reason  of  tl  danger  of  destruction  to 
the  defaulting  company's  business,  through 
the  refusal  of  others  to  convey  or  carry 
packages,  parcels,  or  merchandise  for  the 
company,  on  account  of  the  statutory  pen- 
alties for  con\  "ying  the  same.  Ratttrman 
v.  American  Exp.  Co.,  49  Ohio  St.  608,  32  A'. 
E.  Rep.  754.— Quoting  Western  Union  Tel. 
Co.  V.  Mayer,  28  Ohio  St.  521 ;  Reading  R. 
Co.  V.  Pennsylvania,  15  Wall.  (U.  S.)  284. 
Reviewing  Ratterman  v.  Western  Union 
Tel.  Co..  127  U.  S.  411. 

340.  Demand  before  suit.— Under 
Neb.  Revenue  Act,  §  144,  when  an  alleged 
illegal  tax  is  paid  under  protest  to  a  county 


treasurer,  the  treasurer  receives  it  as  the 
agent  of  the  state  school  district,  etc.,  for 
the  benefit,  or  under  the  authority,  or  by 
the  request,  of  which  the  same  was  levied, 
as  well  as  of  the  county,  and  in  order  to  lay 
a  foundation  for  legal  proceedings  to  recover 
such  illegal  taxes  paid  under  protest,  de- 
mand thereof  must  be  made  of  the  state 
treasurer,  school  district  treasurer,  etc., 
within  the  time  limited  by  the  statute. 
Burlington  6-  M.  R.  R.  Co.  v.  Buffalo 
County,  14  Neb.  51.  14  A'.  W.  Rep.  539. 

341.  Pleading  and  evidence. —  In 
an  action  by  a  railroad  to  recover  taxes 
illegally  collected,  the  declaration  must  set 
out  the  facts  which  show  such  illegality. 
Montgomery  6-  W.  P.  R.  Co.  v.  Duer,  46 
Ga.  272. 

In  an  action  by  a  company  against  county 
commissioners,  to  recover  back  certain 
taxes  paid,  it  was  alleged  in  the  petition 
that  said  taxes  were  illegal,  and  that  they 
were  paid  under  protest,  and  to  prevent  the 
county  treasurer  from  issuing  tax  warrants 
for  their  collection  ;  and  it  was  claimed  that 
they  were  illegal  because  they  were  levied 
as  follows :  "  Two  and  a  half  mills  incidental 
tax  in  school  district  No.  1 ";  "two mills  in- 
cidental tax  in  school  district  No.  8,"  etc. 
But  it  was  not  alleged  or  shown  in  said 
petition  that  the  county  commissioners  ever 
had  anything  to  do  with  or  concerning  said 
taxes,  either  before  or  after  their  levy  or 
collection.  Held,  that  the  petition  did  not 
state  facts  sufficient  to  constitute  a  cause  of 
action  in  favor  of  the  company  and  against 
the  county  commissioners.  Pawnee  County 
Com'rs  V.  Atchison,  T.  &»  S.  F.  R.  Co.,  3i 
Kan.  748. 

In  an  action  by  a  railroad  corporation 
against  a  town  to  recover  back  money  paid 
for  taxes  assessed  upon  wood,  upon  the 
ground  that  its  place  of  business  was  not  in 
defendant  town,  the  onus  is  upon  plaintiff 
to  show  wliere  it  was.  Portland,  S.  &»  P. 
R.  Co.  V.  Saco,  60  Me.  196. 

A  petition  by  a  company  against  a  city 
collector  for  wrongfully  levying  on  property 
to  satisfy  a  tax,  when  the  pleading  only 
attacks  the  form  and  manner  of  making 
the  assessment,  but  sets  out  no  facts  show- 
ing that  the  assessment  is  void,  is  bad  on 
demurrer.  If  the  city  had  jurisdiction  over 
the  subject  matter,  that  would  amount  to  a 
protection  of  the  officer  in  executing  his 
process.  Mayor,  etc.,  of  Jefferson  v.  Opel, 
49  Mo.  190. 


1008 


TAXATION,  343-344. 


ml 


%   !i 


3.  Injunction, 

842.  In  general.*— An  injunction  will 
not  be  granted  to  enjoin  a  state  tax  on 
lands  granted  by  the  United  States  to  a 
railroad,  where  all  costs  due  the  United 
States  had  been  paid  before  the  final  action 
of  the  assessing  officers,  and  patents  issued 
before  the  suit  was  brought,  and  where  a 
doubt  exists  as  to  the  time  of  assessment 
under  the  state  law.  Hunnewtll  v.  Can 
County,  22  Wall.  (U.S.)  464. 

Except  under  very  special  circumstances 
the  power  of  taxation  ought  not  to  be  inter- 
fered with  by  injunction.  Sttvens  v.  Nrw 
York&'  O.  M.  R.  Co.,  \iBlatchf.  ( U.  S.)  104. 

An  injunction  to  restrain  the  sale  of  prop* 
erty  assessed  as  omitted  property  will  be 
refused  where  it  appears  that  the  property 
if  taxable,  and  that  if  the  taxes  are  paid, 
complainant  will  pay  no  more  than  its  share 
of  the  public  burdens.  Union  Pac.  R.  Co. 
V.  Lincoln  County,  2  Dill.  ( U.  S.)  279. 

A  court  of  equity  will  not  give  to  a  party 
relief  against  that  which  it  is  his  duty  to  do, 
by  contract  or  otherwise.  So,  where  com- 
plainant corporation  has  agreed  with  a  rail- 
way company,  for  a  consideration,  to  make 
advances  to  pay  its  taxes,  when  necessary 
to  maintain  its  organization,  and  has  been 
put  into  possession  of  all  its  property,  it  will 
not  be  allowed  to  enjoin  the  collection  of 
such  taxes  which  are  proper  and  legal,  on 
the  assumed  ground  of  its  ownership  of 
the  property.  Archer  v.  Terrt  Hautt  &* 
/.  R.  Co.,  7  Am.  &»  Eng.  R.  Cat.  249,  102 
///.  493. 

A  company  which  acquiesces  in  the  loca- 
tion and  construction  of  a  public  ditch  upon 
its  right  of  way  cannot,  in  a  suit  by  it  to 
t'njoin  the  collection  of  an  assessment  lit 
the  cost  of  repairing  the  ditch,  raise  the 
question  as  to  whether  the  ditch  was  right- 
fully located  on  its  premises.  Davis  v.  Lake 
Shore  &*  M.  S.  R.  Co.,  114  Ind.  364,  14 
West.  Rep.  269,  16  N.  E.  Rep.  639. 

Courts  of  equity  will  not  interfere  by  in- 
junction to  restrain  the  collection  of  taxes, 
when  the  property  is  subject  to  taxation 
and  the  tax  is  nut  excessive,  merely  because 
there  are  irregularities  in  the  assessment. 
Kansas  Pac.  R.  Co.  v.  Russell,  8  /Can.  $58.  5 
Am.  Ry.  Rsp.  232.— Approving  Missouri 
River,  Ft.  S.  &  G.  R.  Co.  v.  Morris,  7 
Kan.  210. 

^  Relief  in  equity  against  taxation,  see  note, 
3  Am.  &  Eno.  k.  Cas.  593. 


N.  Car.  Act  of  1887,  ch.  137,  {  84.  forbid- 
ding the  granting  of  injunctions  to  restrain 
the  collection  of  any  tax,  unless  such  tax  is 
levied  for  an  illegal  or  unauthorized  pur- 
pose, does  not  conflict  with  either  the  fed- 
eral or  state  Constitutions.  Ralegh  &*  G. 
R.  Co.  v.  Lewis,  99  N.  Car.  62,  5  S.  E. 
Rep.  82. 

By  a  long  course  of  decisions  it  has  been 
settled  that  the  remedy  against  an  attempt 
to  coerce  the  payment  of  an  illegal  tax  is  by 
injunction.  Shenandoah  Valley  R.  Co.  v. 
Clarke  County  Sup'rs,  78  Va.  269. 

343.  There  must  be  no  remedy  at 
law.  —  To  warrant  an  injunction  against 
the  collection  of  a  tax,  it  must  appear  clearly, 
from  allegations  and  proofs,  that  the  assess- 
ment works  such  an  injury  es  a  court  of 
equity  alone  is  competent  to  redress.  Chi- 
cago, B.  &•  Q.  R.  Co.  V.  Siders,  88  ///.  320, 21 
Am.  Ry.  Rep.  304. 

A  court  of  equity  will  not  enjoin  a  coun- 
ty collector  from  applying  for  judgment 
against  the  right  of  way  of  a  company  for 
taxes  due  on  its  capital  stock,  on  the  ground 
that  complainant  claims  to  have  succeeded 
to  such  company't;  rights,  the  defense,  if  any, 
being  available  at  law,  and  this  especially 
when  complainant  has  obligated  itself  by 
contract  to  pay  such  taxes.  Archer  v.  Terre 
Haute  &*  I.  R.  Co.,  7  Am.  &*  Eng.  R.  Cas. 
249.  102  ///.  493. 

Under  the  In  <  ,t{  Nebraska,  where  a  tax- 
payer feels  himself  wronged  by  the  assess- 
ment or  valuation  of  his  own  or  otiier  prop- 
erty for  taxation,  he  has  an  adequate  legal 
remedy  by  a  resort  to  the  county  board  of 
equalization,  and  neglecting  this  he  can 
iiave  no  standing  in  a  court  of  equity  for 
relief.  Burlington  &•  Af.  R.  R.  Co.  v.  Sew- 
ard County  Com'rs,  10  Neb.  211,  4  A^.  W. 
Rep.  1016. 

A  court  of  equity  will  not  interfere 
by  injunction  to  prevent  a  mere  trespass, 
where  there  are  no  peculiar  circumstances 
which  would  render  the  remedy  at  law 
inadequate.  So  a  court  of  equity  will  not 
enjoin  the  sale  of  rolling  stock  for  illegal 
taxes,  where  the  seizing  of  the  property  is 
but  a  mere  trespass  for  which  a  remedy  at 
law  exists.  Chicago  5-  N.  W.  R.  Co.  v.  Ft. 
Howard,  21  Wis.  44. 

344.  Pajrment  or  tender  of  amount 
due.  —  No  injunction  to  stay  the  collection 
of  taxes  levied  against  a  railroad  will  be 
granted  upon  a  bill  which  does  not  affirma- 
tively show  that  so  much  of  the  tax  hat 


TAXATION,  345,  346. 


1003 


137.  8  84,  forbld- 
:tions  to  restrain 
inless  such  tax  is 
(lauthorized  pur> 
th  either  the  (ed- 
I.  RaUigk  &*  G. 
:ar.  62.  5  5.  E. 

sions  it  has  been 
ainst  an  attempt 
in  illegal  tax  is  by 
Vallty  R.  Co.  v. 
a.  269. 

no  remedy  at 
junction  against 
1st  appear  clearly, 
I,  that  the  assess- 
ry  es  a  court  of 
to  redress.  Chi- 
ers,  88  ///.  320, 21 

ot  enjoin  a  coun- 
ig  for  judgment 
>f  a  company  for 
:k,  on  the  ground 
)  have  succeeded 
lie  defense,  if  any, 
id  this  especially 
bligated  itself  by 
Archer  v.  Terre 
&*  Eng.  R.  Cat. 

hska,  where  a  tax- 
ed by  the  assess- 

urn  or  other  prop- 
tn  adequate  legal 
county  board  of 
ing  this  he  can 
urt  of  equity  for 
R.  R.  Co.  V.  Sew- 
\eb.  211,  4  JV.  W. 

ill  not  interfere 
a  mere  trespass. 
ar  circumstances 

remedy  at    law 

if  equity  will  not 

stock  for  illegal 

if  the  property  is 

hich  a  remedy  at 

W.  R.  Co.  V.  Ft. 

ider  of  amount 

itay  the  collection 

railroad  will  be 

does  not  aflSrma- 

I  of  the  tax  hu 


been  paid  or  tendered  without  demanding  a 
receipt  in  full  as  is  conceded  ought  to  be 
paid,  or  so  much  as  the  court  can  see,  or  as 
can  b(i  s.iown  by  afHdavits,  should  be  paid. 
Huntington  y. Palmer,  7  Sawy.  (U.  S.)  355,8 
Fed.  Rip.  449.— Reviewing  Taylor  v.  Secor, 
92  U.  S.  575- 

A  bill  to  restrain  the  collection  of  taxes 
which  does  not  show  a  payment  or  uncon> 
ditional  tender  of  so  much  of  the  tax  as  is 
conceded,  or  can  be  shown,  to  be  properly 
due  does  not  present  any  equity  suiiicient 
to  justify  either  preliminary  or  final  relief. 
Huntington  v.  Palmer,  7  Sawy.  (£/*.  iS.)  355, 
8  Fed.  Rep.  449. 

Even  if  a  remedy  has  not  been  specifically 
provided  for  the  county,  if  a  railroad  seeks  to 
enjoin  the  collection  of  an  excessive  amount 
of  tax,  will  not  equity  require  that  it  pay  a 
just  and  proper  amount?  Quart.  Savan- 
nah, F.  &*  W.  R.  Co.  v.  Morion,  71  Ca.  24 

The  power  to  levy  a  tax  must  be  clearly 
and  distinctly  given  by  law,  and  if  the  limits 
fixed  by  the  statute  are  transcended  by 
levying  a  sum  in  excess  may  affect  titles 
acquired  by  a  sale  of  the  property  for  such 
illegal  tax.  But  this  will  not  excuse  a  party 
praying  for  an  injunction  from  tendering 
the  amount  of  taxes  justly  due  from  him. 
Burlington  *•  Af.  R.  R.  Co.  v.  York  County 
ConCrs,  7  Neb.  487.  —  Followed  in  Bur- 
lington &  M.  R.  R.  Co.  V.  Saunders  County 
Com 'rs,  9  Neb.  507;  Union  Pac.  R.  Co.  v. 
Dawson  County,   12  Neb.  254. 

A  bill  to  enjoin  the  collection  of  taxes  on 
lands  granted  to  a  company  on  the  ground 
that  they  are  exempt  from  taxation  under  a 
statute  which  requires  the  company  to  pay 
three  per  cent,  annually  on  its  gross  earn- 
ings will  be  dismissed  for  want  of  equity, 
where  there  is  nothing  to  show  that  the 
three  per  cent,  has  been  paid  or  tendered. 
Northern  Pac.  R.  Co.  v.  Walker,  47  Fed. 
Rep.  681. 

A  company  filed  a  bill  to  enjoin  several 
county  treasurers  from  collecting  taxes,  but 
admitted  that  a  certain  amount  was  due 
which  it  claimed  to  have  tendered,  but 
which  had  been  refused.  Thereupon  the 
defendants  asked  for  an  order  requiring  the 
company  to  pay  over  the  amount  thus 
tendered.  Held,  that  the  company  could 
not  object  to  the  payment  of  this  amount 
on  the  ground  that  it  might  prejudice  some 
ol  its  rights,  or  that  some  advantage  might 
be  taken  of  it  elsewhere.  Richmond  ^  D. 
R,  Co.  V.  Blake,  49  Fed.  Rep.  904. 


In  such  case  the  company  could  not 
object  that  a  part  of  the  tax  went  to  the 
state,  that  it  was  not  a  party,  and  that  the 
action  of  the  treasurers  might  not  bind  the 
state,  especially  where  the  company  was 
seeking  by  its  own  bill  to  have  the  tax  de- 
clared invalid  without  making  the  state  a 
party;  and  that  the  court  could  not  hold 
the  money  until  the  state  submitted  to  its 
jurisdiction.  Richmond  &*  D.  R.  Co.  v. 
Blake,  49  Fed.  Rep.  904. 

Where  a  company  has  not  tendered  or 
offered  to  pay  the  taxes  that  ii.'  .ands  should 
justly  bear,  it  cannot  enjoin  a  sale  thereof 
on  the  ground  that  the  tax  collector  assessed 
the  taxes  and  added  them  to  the  tax  roll 
without  notice  to  the  company.  Oregon  &» 
C.  Jt.  Co.  V.  Lan*  County,  23  Oreg.  386,  31 
Pac.  Rep.  964. 

346.  Jurisdiction,  generally.*— Tax 
executions  having  been  issued  against  a 
railroad  and  levied  upon  property  in  a 
county  where  the  company  has  its  principal 
ofiice,  the  superior  court  thereof  liiis  juris- 
diction to  enjoin  the  collection  of  the  Jf./as. 
The  case  is  not  altered  by  a  lease  to  another 
company.  Southwestern  R.  Co.  v.  Wright, 
68  Ga.  311.  Wr^ht  v.  Southwestern  R.  Co., 
64  Ga.  783. 

Circuit  courts  have  jurisdiction,  by  in- 
junction, to  stay  any  illegal  proceedings  to 
assess  a  tax  upon  and  sell  by  coercive  sale 
the  property  of  an  individual  or  corpora- 
tion. Louisville  &*  N.  R.  Co.  v.  Warren 
County  Court,  5  Bush  (Ry.)  243.— FOLLOW- 
ING Applegate  v.  Ernst,  3  Bush  648 

340. of  federal  courts.— Where 

a  portion  of  the  stockholders  are  citizens  of 
other  states,  they  may  seek  relief  in  a  fed- 
eral court  against  an  illegal  taxation  by  the 
state,  although  there  is  no  allegation  that 
the  tax  violates  the  Constitution  or  laws  of 
the  United  States;  and  the  corporation, 
doing  business  in  the  state  where  the  tax  is 
assessed,  may  be  made  a  defendant.  Pain* 
V.  Wright,  6  McLean  {U.  S.)  395. 

United  Sutes  Rev.  St.  (  3224,  which 
declares  that  "  no  suit  for  the  purpose  of 
restraining  the  assessment  or  collection  of 
any  tax  shall  be  maintained  in  any  court," 
applies  only  to  Uxes  levied  by  the  United 
States,  and  has  no  application  to  taxes 
levied  by  the  District  of  Columbia,  although 
under  authority  of  the  United  States.  Alex- 

*  Power  of  a  court  of  equity  to  enjoin  the  col* 
leriion  of  a  tax,  see  note,  53  Am.  Rbp.  iio. 


1004 


TAXATION,  347. 


f* 


IH 


andria  C,  R.  5*  B.  Co.  v.  District  of  Cohtm' 
bia,  7  Am,  H*  Etig.  R.  Cas.  325,  i  Mackty 
(D.  C.)  217. 

A  company  cannot  obtain  an  injunction 
in  the  United  States  courts  to  restrain  the 
levy  of  taxes  imposed  on  it  by  a  state  on 
the  ground  that  the  assessment  is  under 
laws  which  discriminate  unjustly  against 
the  corporation  and  deprive  it  of  an  oppor* 
tunity  of  a  hearing,  in  violation  of  the  pro- 
visions of  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States,  where  an 
inspection  of  those  laws  shows  that  such  is 
not  the  case.  Manhattan  R.  Co.  v.  Mayor, 
etc.,  of  N.  v.,  13  Am.  &*  Eng.  li.  Cas.  261, 18 
Fed.  Rep.  195.— APPLYING  People  ex  rel,  v. 
Com'rs  of  Taxes,  60  N.  Y.  638.  46  How.  Pr. 
227.  Distinguishing  San  Mateo  County 
V.  Southern  Pac.  R,  Co.,  13  Fed.  Rep.  722. 

347.  Grounds,  generally."'  — Where 
a  corporation  has  tendered  coupons  from 
state  bonds  in  payment  of  taxes,  under  the 
Virginia  Act  of  March  20,  1871.  entitled 
"  An  act  to  provide  for  the  funding  and  pay- 
ment  of  the  public  debt,"  and  the  coupons 
have  been  refused,  it  is  entitled  to  an  injunc- 
tion  to  restrain  a  levy  on  its  rolling  stock. 
(Waite,  C.J..  Miller,  Bradley,  and  Gray,  JJ., 
dissenting.)  Allen  v.  Baltimore  &»  O.  R. 
Co.,  114  U.  S.  311,  5  Sup.  Ct.  Rep.  925.  962. 
—Distinguished  in  Hagood  v.  Southern, 
117  U.S.  52. 

Equity  has  jurisdiction  to  interfere  in  be- 
half of  a  company  on  these  grounds:  (1) 
because  exactions  are  pressed  upon  it,  in 
the  form  of  annual  taxes,  inconsistent  with 
and  violative  of  its  chartered  rights,  and 
destructive  of  its  franchise ;  (2)  because  the 
exactions  may  be  repeated  if  these  are 
successful,  and  suits  and  costs  be  multi- 
plied; (3)  because  it  was  misled  by  the 
action  of  the  comptroller  and  a  legal  fraud 
perpetrated  upon  it ;  (4)  because  of  mistake 
caused  by  the  defendant's  conduct ;  (5)  be- 
cause the  numerous  questions  made  as  to 
different  parts  of  the  road  and  the  liability 
of  each  portion  or  branch,  most  of  them 
dependent  for  adjudication  on  separate 
charters  and  amendments,  and  other  ques- 
tions  in  respect  to  other  items  of  property 
in  and  out  of  this  state,  and  in  what  de- 
gree or  how  they  are  connected  with  this 
road,  and  whether  liable  or  not  to  be  taxed, 
complicate  the  case  to  such  a  degree  that  a 

*  Injunction  to  restrain  levy  of  tax  a^  casting 
cloud  on  title,  see  note,  17  Am.  tc  Eno.  R. 
Cas.  398. 


court  of  equity  can  unravel  it  better  than  a 
court  of  law.  Wright  v.  Southwestern  R. 
Co..  64  Ga.  783. 

A  court  of  equity  will  not  entertain  a  bill 
to  restrain  the  collection  of  a  tax  except 
where  it  is  unauthorized  by  law,  or  where  it 
is  assessed  upon  property  not  subject  to 
taxation,  and  then  only  where  the  collection 
of  the  tax  would  produce  irreparable  injury 
or  cause  a  multiplicity  of  suits.  Cook  County 
V.  Chicago,  B.  <S-  Q.  R.  Co.,  35  ///.  460.— Ex- 
plaining Illinois  C.  R.  Co.  v.  McLean 
County,  17  III.  291 ;  Beverly  v.  Sabin,  20  111. 
357.  Quoting  Ottawa  v.  Walker.  21  III. 
605.— Quoted  in  Porter  v.  Rockford,  R.  I. 
ASt.  L.  R.  Co..  76  III.  561. 

A  court  of  equity  will  not  entertain  a  bill 
to  restrain  the  collection  of  a  tax  except  in 
cases  where  the  tax  is  unauthorized  by  law, 
or  where  it  is  assessed  upon  property  not 
subject  to  taxation,  or  where  the  property 
has  been  fraudulently  assessed  at  too  high 
a  rate.  Chicago,  B.  &*  Q.  R.  Co.  v.  Cole,  75 
///.  591.— Followed  in  Taylor  v.  Secor,  92 
U.  S.  575 ;  Chicago,  B.  4  Q.  R.  Co.  v.  Pad- 
dock, 7S  111.  616. 

Or  where  the  assessment  or  levy  has 
been  made  without  legal  authority,  or  fraud 
has  occurred.  For  all  other  grounds  the 
party  must  be  left  to  his  remedy  at  law.  if 
any.  Wabash,  St.  L.  &•  P.  R.  Co.  v.  fohn- 
son,  17  Am.  &*  Eng.  R.  Cas.  487.  108  ///.  11. 

In  such  case,  in  no  event  will  an  injunction 
lie  unless  it  is  clearly  made  to  appear  that  the 
party  has  been  wrongfully  assessed,  and  will 
sustain  irreparable  injury  unless  the  collec- 
tion of  the  tax  be  enjoined.  Porter  v.  Rock- 
ford.  R.  /.  6-  St.  L.  R.  Co..  76  ///.  561.— 
Quoting  Weaver  v.  Devendorf.  3  Den.  (N. 

Y.)ii9. 

Where  a  county  grants  its  swamp  lands 
to  a  company  to  aid  in  the  construction  of 
a  road,  the  company  releasing  the  state 
and  county  from  all  liability  for  reclaiming 
the  lands,  a  grantee  of  the  company  cannot 
ask  an  injunction  to  restrain  the  county 
from  collecting  a  tax  for  ditching  and 
draining  them,  notwithstanding  the  subse- 
quent passage  of  an  act  providing  that  the 
county  cannot  release  itself  from  the  duty 
of  making  such  improvements.  Hatch  v. 
Pottawattamie  County.  43  Iowa  442. 

An  action  to  enjoin  the  collection  of  the 
tax  upon  the  ground  that  the  ditching  has 
not  benefited  the  land  upon  which  the  tax 
is  levied  is  not  the  proper  remedy.  HateA 
v.  Pottawattamie  County,  43  Iowa  44a. 


TAXATION,  348-3S0. 


1005 


it  better  than  a 
Southwtstem  R. 

entertain  a  bill 
>f  a  tax  except 
law,  or  where  it 
not  subject  to 
re  the  collection 
reparable  injury 
:s.  Cook  County 
[5  ///.  460.— Ex- 
^o.  V.  McLean 
V.  Sabin,  20  III. 
Walker.  21  III. 
Rockford.  R.  I. 

entertain  a  bill 
a  tax  except  in 
horized  by  law, 
n  property  not 
•e  the  property 
ised  at  too  high 
.  Co.  V.  Cole,  75 
lor  V.  Secor,  93 

R.  Co.  V,  Pad- 

>t  or  levy  has 
hority,  or  fraud 
er  grounds  the 
niedy  at  law.  if 
R.  Co.  V.  John- 
487.  108///.  II. 
ill  an  injunction 
appear  that  the 
isessed,  and  will 
less  the  collec- 
Porter  v.  Rock- 
.  76  ///.  561.— 
lorf.  3  Den.  (N. 

I  swamp  lands 
:onstruction  of 
sing  the  state 

for  reclaiming 
)mpany  cannot 
in  the  county 

ditching  and 
ing  the  subse- 
iding  that  the 
from  the  duty 
Its.  Hatch  V. 
'«443> 

I  lection  of  the 
e  ditching  hat 
which  the  tax 
medy.    Hatch 

f0tlMH42. 


In  1872  county  commissioners  levied  a 
road  tax  upon  the  taxable  property  of  the 
county.  Afterwards  the  county  clerk  de- 
termined the  amount  to  be  charged  to  the 
different  persons,  companies,  and  corpora- 
tions having  property  in  the  county,  and 
placed  the  amount  to  be  charged  against  a 
railroad  company  upon  the  tax  roll  of  the 
county  for  that  year.  The  company  did  not 
p.iy  tlie  amount.  In  February,  1873,  the 
county  treasurer  issued  his  warrant  to  thu 
sheriff  of  the  county  for  the  collection  of 
the  tax,  and  the  sheriR  was  about  to  pro- 
ceed to  collect  the  same  when  the  company 
commenced  this  action  to  enjoin  the  collec- 
tion thereof,  claiming  that  the  tax  could  not 
be  collected  at  that  time,  nor  in  that  man- 
ner. Held,  that,  under  the  tax  laws  in  force 
in  1872  and  in  1873,  all  railroad  property 
used  in  operating  the  road,  including  the 
real  estate,  was  treated  as  personal  property ; 
and  that,  as  all  road  taxes  on  personal  prop- 
erty for  the  year  1872  should  have  been  col- 
lected at  the  time  and  in  the  manner  that 
the  road  tax  against  the  company  was  at- 
tempted to  be  collected,  the  road  tax 
against  the  company  was  properly  collec- 
tible, and  the  company  could  not  maintain 
the  action.  Leavenworth,  L.  &-  G.  Ji.  Co.  v. 
Clemmans,  14  Kan.  82. 

Equity  will  interpose  to  prevent  the  col- 
lection of  an  illegal  tax  when  such  tax 
would  cast  a  cloud  upon  the  title  to  re<' 
estate ;  and  a  tax  record,  regular  upon  t:<i 
face,  creates  a  lien  upon  real  estate  and  is  a 
cloud  upon  the  title,  where  a  tax  deed  is  by 
\w  prima  facie  evidence  of  title.  The  rule 
is  different  where  the  tax  is  illegal  on  its 
face.  Equity  will  interfere,  also,  to  prevent 
the  collection  of  a  tax  upon  property  which 
is  exempt  from  taxation ;  to  prevent  a  mul- 
tiplicity of  suits;  to  prevent  the  destruction 
of  a  franchise ;  to  protect  the  quiet  enjoy- 
n^ent  of  an  easement ;  and  to  protect  rights 
the  evidence  of  which  is  liable  to  be  lost. 
Northern  Pac,  R.  Co.  v.  Carland,  17  Am.  A* 
Eng.  R.  Cas.  364, 5  A  font,  146, 3  Pac.  Rep.  134. 

Where  the  collection  of  illegal  taxes 
•gainst  a  company  may  work  an  irreparable 
injury,  an  injunction  against  the  collector 
and  other  county  officials  will  be  granted. 
Union  Pac.  R.  Co.  v.  Carr,  t  tVyom.  96. 

An  injunction  will  lie  at  the  suit  of  a  rail- 
road to  restrain  a  tale  of  its  lands  for  taxes 
where  sufficient  ground  for  such  relief  is 
shown,  such  as  saving  a  multiplicity  of  suits. 
or  preventing  irreparable  injury  or  the  cast- 


ing a  cloud  upon  the  title  of  realty.     Cana^ 
dian  Pac.  R.  Co,  v.  Calgary,  5  Man.  37. 

348.  Assessment  of  exempt  prop- 
erty. —  Where  a  state  tax  is  assessed  and 
levied  against  a  company  owning  and  oper- 
ating a  line  of  road  within  the  state,  the 
assessment  being  based  upon  the  rolling 
stock  used  in  operation  of  such  road,  a  third 
party  cannot  enjoin  the  state  from  collect- 
ing, or  the  company  from  paying,  a  portion 
of  such  tax,  on  the  ground  that  a  part  of 
the  rolling  stock  included  in  such  assess- 
ment is  the  property  of  such  third  party  and 
is  exempt  from  taxation.  Pullman  Palace 
Car  Co.  v.  Twombly,  29  Fed.  Rep.  658. 

Under  Idaho  Code  a  party  cannot  bring  a 
separate  suit  in  equity  to  enjoin  an  action 
at  law  when  the  grounds  of  the  bill  might 
b"  set  up  as  a  defense  to  the  action  at  law. 
So  where  a  company  claims  an  exemption 
from  taxation  it  must  set  up  the  matter  in 
defense  to  the  action  at  law  brought  to  col- 
lect the  taxes,  and  not  resort  to  a  separate 
suit  in  equity.  Utah  &*  N.  R.  Co.  v.  Cravh 
ford,  I  Idaho  770. 

Courts  of  equity  will  not  enjoin  the  col- 
lection of  the  whole  of  a  tax  because  in 
determining  the  valuation  of  an  aggregate 
property  exempt  property  may  have  been 
included  as  a  factor.  Huck  v.  Chicago  &* 
A.  R.  Co.,  86  ///.  352.  17  Am.  Ry.  Rep.  419. 

349.  Cases  of  summary  sales.— 
When  a  tax  collector  summarily  seizes  prop- 
erty and  advertises  it  for  sale  for  arrear- 
ages of  taxes,  and  his  right  to  do  so  it 
contested,  he  must  show  specifically  what 
property  he  claims  taxes  on,  what  is  the 
cash  value  of  that  property,  and  what  the 
percentage  on  that  value.  Otherwise  he 
will  be  enjoined  from  proceeding  in  the 
summary  way  allowed  by  the  law.  Clinton 
&*  P.  H.  R.  Co.  V.  Tax  Collector,  30  La, 
Ann.  626. 

350.  Fraud  or  unfairness.  — The 
superstructure  of  a  railroad,  aside  from  the 
franchise  to  use  it  for  railroad  purposes, 
being  of  but  little  or  no  value,  the  finding 
its  actual  value  with  the  franchise,  for  tax- 
ation, does  not  afford  sufficient  evidence  of 
unfairness  to  justify  a  court  of  equity  in 
restraining  the  collection  of  taxes  levied  on 
such  valuation.  Chicago,  B.  &*  Q.  R.  Co. 
V.  Sidert,  88  ///.  320,  3i  Am.  Ry.  Rep.  304. 

Ordinarily,  the  fraud  which  may  be  urged 
against  an  assessment  of  railroad  property 
must,  in  general  terms,  have  consisted 
either  in  a  wilful  disregard  by  the  membert 


1006 


TAXATION,  351-353. 


I 


i 


'4k  •■*  " 


^•••,»*  '^ 


1)1 


I: 


81 , :: 


I 


f  •  •• 
is:' 


m 

Ih 

n 

^ 

of  the  board  of  equalization  of  a  known 
duty,  for  the  purpose  of  producing  a  result 
which  could  not  otherwise  have  been  pro- 
duced, or  in  their  denying  or  preventing  the 
taxpayer  from  doing  something  that  he 
might  lawfully  have  done,  and  but  for 
being  denied  and  prevented  by  them  would 
have  done,  which  would  or  might  have  had 
the  effect  of  causing  a  lower  valuation  of  the 
property  to  be  made.  East  St.  Louis  Con- 
necting R.  Co.  V.  PiopU  ex  rtl.,  119  ///.  183, 
10  N.  E.  Rep,  397. 

A  collector  of  taxes,  in  violation  of  an 
agreement  between  the  county,  court  and  a 
tax  debtor,  was  about  to  enforce  collection 
of  certain  taxes  assessed  against  the  real 
estate  of  the  latter.  Held,  that  an  injunc- 
tion would  lie  to  prevent  a  sale.  St.  Louis, 
7.  M.  &*  S.  R.  Co.  v.  Anthony,  7  Am.  &* 
Eng.  R.  Cas.  366,  73  Mo.  431.  — Distin- 
guished IN  Kansas  City  v.  Hannibal  &  St. 
J.  R.  Co.,  81  Mo.  285. 

351.  Illegality.— A  court  of  equity 
will  not  restrain  the  collection  of  an  illegal 
tax  unless  irreparable  injury  will  otherwise 
result.  Oliver  v.  Memphis  &•  L.  R.  R.  Co., 
yo  Ark.  138. 

The  rule  that  the  mere  illegality  of  a  tax 
is  no  ground  for  the  interposition  of  acourt 
of  equity,  but  that  there  must  exist,  in  addi- 
tion, special  circumstances  bringing  the 
case  under  some  recognized  head  of  equity 
jurisdiction,  applies  to  taxes  levied  by  the 
sovereign ;  it  would  seem  not  to  be  properly 
applicable  to  the  case  of  an  illegal  tax  lev- 
ied by  a  municipal  corporation.  Alexandria 
C,  R.  *•  B.  Co.  V.  District  of  Columbia,  7 
Am.  S»  Etig.  R.  Cas.  325,  i  Mackey  (D.  C.) 
217.— Quoting  Taylor  v.  Secor,  92  U.  S.  61 2. 

Equity  will  enjoin  the  collection  of  a  tax 
which  ii.  not  aut.horized  by  law,  and  may 
adjust  (Rd  settle  the  principles  regulating 
the  imposition  of  the  tax.  So  a  court  of 
equity  will  interfere  when  it  is  apparent  that 
the  collection  of  a  tax  upon  the  entire  prop- 
erty of  a  company,  without  regard  to  limi- 
tations in  its  charter,  would  be  unconstitu- 
tional and  illegal.  Southwestern  R.  Co.  v. 
JVrij^ht,  a  Ga.  311. 

Where  a  tax  is  levied  in  excess  of  the  legal 
limit,  an  injunction  will  not  be  granted  to 
restrain  the  collection  of  the  whole  tax  if 
the  legal  and  illegal  portions  can  be  sepa- 
rated, but  in  order  to  obtain  an  injunction 
the  taxpayer  mutt  tender  the  amount  which 
is  lawfully  due.  Burlington  ^  M.  R.  R. 
Co.  V.  Ytrk  CfHHty  Com'rs,  7  Net.  487. 


A  sinking-fund  tax,  levied  to  pay  other 
than  the  bonded  indebtedness  of  a  county, 
may  be  enjoined.  And  the  fact  that  the 
county  commissioners,  after  the  levy  of  the 
tax,  formally  rescinded  the  same,  will  not  de- 
feat the  action  where  the  tax  is  an  apparent 
lien  upon  real  property.  Burlington  &*  M. 
R.  R.  Co.  v.  Clay  County,  13  Ned.  367,  13 
N.  W.  Rep.  628.— Following  Union  Pac 
R.  Co.  V.  Buffalo  County  Com'rs,  9  Neb. 
449;  Union  Pac.  R.  Co.  v.  Dawson  County, 
12  Neb.  254. 

Where  county  commissioners  have  caused 
to  be  placed  on  the  duplicate  a  personal  tax 
to  be  collected  against  a  railroad,  a  resident 
owner  of  the  land,  as  part  of  the  cost  of  a 
county  ditch  affecting  its  land,  under  a  pro- 
ceeding of  which  such  company  had  neither 
notice  nor  knowledge,  such  tax  is  illegal 
and  its  collection  may  be  perpetually 
enjoined.  The  remedial  provisions  of  Ohio 
Rev.  St.  §§  4490,  4491,  do  not  apply.  Balti- 
more &*  O.  &»  C.  R.  Co.  v.  IVagner,  43  Ohio 
St.  75,  I  A^.  E.  Rep.  91. 

352.  Inconio  uot  up  to  taxing 
mark.— Virginia  Act  of  March  6,  1847,  §  7, 
held,  to  mean  that  taxes  may  be  assessed 
upon  the  Baltimore  &  O.  R.  Co.  whenever 
the  net  income  of  the  road  shall  exceed  six 
per  cent,  per  annum,  on  the  capital  invested, 
and  not  when  the  net  income  of  that  por- 
tion of  the  road  in  '/irginia  (now  West  Vir- 
ginia) shall  exceed  that  amount.  Baltimore 
&*  O.  R.  Co.  V.  Marshall  County  Sup'rs,  3 
IV.  Va.  319.  — Followed  in  Baltimore  4 
O.  R.  Co.  V.  Wheeling,  3  W.  Va.  372. 

It  not  being  claimed  or  appearing  in  the 
record  that  the  net  income  of  the  company, 
on  the  capital  invested,  exceeded  six  per 
cent,  per  annum  for  the  year  1855,  when  the 
taxes  in  this  cause  were  assessed,  the  order 
of  the  court  below  dissolving  an  injunction 
granted  to  said  company  to  restrain  the  col- 
lection of  taxes  assessed  on  its  property  by 
the  appellee  for  that  year  was  erroneous. 
Baltimore  &*  O.  R.  Co.  v.  Wheeling,  3  W. 
Va.  372. 

353.  Irregularities.'*'  —  A  court  of 
equity  will  not  enjoin  the  collection  of  a  tax, 
at  the  suit  of  a  railroad,  for  mere  irregular!- 
ties,  but  only  where  the  tax  is  unauthorized, 
or  the  property  not  subject  to  taxation. 
Chicago,  B.  &*  Q.  R.  Co.  v.  Frary,  22  ///.  34. 
—Quoted  in  Wood  v.  Helmer,  10  Neb.  65. 

*  Irregularity  in  aueiiment  as  ground  (or 
injunction,  see  note,  17  Am.  &  Eno.  R.  Cas.  490. 


T/^.ATION,  354,355. 


1007 


A  to  pay  other 
ess  of  a  county, 
!  fact  that  the 
tjte  levy  of  the 
ime,  will  not  de- 
c  is  an  apparent 
triitigtoti  &*  M. 
13  Neb.  367,  13 
NO  Union  Pac 
Com'rs,  9  Neb. 
Dawson  County, 

lers  have  caused 
e  a  personal  tax 
road,  a  resident 
>f  the  cost  of  a 
id,  under  a  pro- 
any  had  neither 
h  tax  is  illegal 
be  perpetually 
>visioni  of  Ohio 
>t  apply.  Balti- 
Vagner,  43  Ohio 

p    to    taxing 

irch6,  1847.  §7, 
nay  be  assessed 
\.  Co.  whenever 
shall  exceed  six 
capital  invested, 
me  of  that  por- 
(now  West  Vir- 
>unt.  Baltimore 
'bounty  Sup'rs,  3 
IN  Baltimore  & 
V.  Va.  372. 
ippearing  in  the 
of  the  company, 
xcecded  six  per 
r  1855,  when  the 
essed,  the  order 
ig  an  injunction 
restrain  the  col- 
its  property  by 
was  erroneous. 
Wheelim,  3  IV. 

—  A  court  of 
illection  of  a  tax, 
mere  irregular!- 
is  unauthorized, 
ct  to  taxation. 
Frary,  aa  ///.  34. 
mer,  10  Neb.  65. 


It   as  ground  for 
Eno.  R.  Cas.  490. 


A  railroad  tax  will  not  be  enjoined  be- 
cause the  distribution  of  its  taxable  prop- 
erty, other  than  its  local  property,  among 
the  several  counties  through  which  it  runs 
was  made  by  the  clerk  (>f  the  board  of  equal- 
ization after  the  adjournment  of  the  board, 
if  made  on  the  basis  fixed  by  the  statute, 
and  if  the  burden  on  the  company  has  not 
been  increased.  Wilson  v.  Weber,  5  Am. 
&*  Eng.  R.  Cas.  112,  96  ///,  454;  affirmimi 
lIll.App.  125. 

Failure  of  the  state  board  of  equaliza- 
tion to  apportion  the  value  of  the  capital 
stock  of  a  company  among  the  several 
counties  through  which  the  road  is  located, 
and  the  making  of  such  apportionment  by 
the  auditor,  so  it  is  correctly  made,  is  no 
ground  for  interfering  with  the  collection  of 
the  tax.  The  company  cannot  object  because 
the  tax  may  not  be  distributed  properly  be- 
tween th3  counties.  Union  Trust  Co.  v. 
Weber,  3  Am.  Sf  Eng.  R.  Cas.  583.  96  ///. 
346.— Following  Thatcher  v.  People  ex 
rel.,  79  111.  597 ;  Pacific  Hotel  Co.  v.  Lieb,  83 
III.  602. 

Equity  will  not  interfere  to  restrain  the 
collection  of  taxes  authorized  by  law  on 
account  of  errors  or  irregularities  in  the 
assessment ;  and  when  a  road  tax  has  been 
legally  levied  and  is  unpaid,  equity  will  not 
relieve  a  taxpayer  from  the  payment  of  such 
tux  on  account  of  irregularities  in  its  return 
by  the  township  clerk  to  the  county  treas- 
urer. And  where  the  statutory  provision 
for  the  collection  of  taxes  is  plain,  speedy, 
and  adequate,  equity  will  not  interfere  to 
enforce  their  collection.  Cedar  Rapids  &* 
M,  R.  R.  Co.  V.  Carroll  County,  41  Iowa  153. 

In  an  action  to  enjoin  certain  taxes  as- 
sessed by  the  local'  assessor  upon  material 
for  the  construction  of  a  railroad  which 
was  piled  up  near  a  city  and  had  so  re- 
mained for  a  long  \\xn^—-held:  (i)  that  the 
material  was  taxable,  and  in  the  absence  of 
proof  that  it  had  been  assessed  by  the  state 
board  there  was  no  presumption  to  that 
effect ;  and  (3)  that  the  taxes  assessed  by  the 
local  assessor  would  not  be  enjoined.  Chi- 
cago, B.  6-»  Q.  R,  Co.  V.  Merrick  County,  36 
Neb.  176,  54  N.   W.  Rep.  309. 

Receivers  of  a  railroad  applied  to  co^rt  to 
enjoin  certain  tax  collectors  from  executing 
warrants  for  taxes  assessed  under  the  laws 
of  New  York  on  the  mortgaged  property, 
on  the  ground  of  irregularities  in  the  assess- 
ment  of  the  taxes.  So  far  as  appeared,  the 
warrants  were  regular  on  their  faces  and  the 


tax  collectors  were  acting  thereunder  in 
good  faith,  in  the  discharge  of  their  duty. 
The  injunction  was  refused.  Stevens  v.  New 
York  &*  0.  At.  R.  Co.,  1 3  Blatchf.  (U.S.)  104. 

On  application  to  enjoin  the  collection  of 
the  one  per  cent,  school  tax  in  a  county, 
under  Tex.  Act  of  August  13,  1870 — held, 
immaterial  that  the  county  was  not  subdi- 
vided into  school  districts ;  nor  was  it  neces- 
sary to  designate  the  property  in  the  levy 
upon  which  the  taxes  should  be  collected, 
or  that  the  treasurer  of  the  board  of  school 
directors  had  ever  given  bond.  Hall  v. 
Houston  <S-  T.  C.  R.  Co.,  39  Tex.  286.— Fol- 
lowing Kinney  V.  Zimpleman,  36  Tex.  554. 

A  charge,  in  a  petition  for  injunction  to 
restrain  the  collection  of  taxes,  that  the 
board  of  equalization  added  to  the  assess- 
ment property  not  owned  by  the  taxpayer 
will  be  disregarded  when  it  is  at  the  same 
time  shown.that  the  amount  of  taxes  first 
assessed  against  the  taxpayer  for  the  same 
species  of  property  is  not  thereby  increased 
by  the  board  of  equalization.  Texas  &*  P. 
R.  Co.  V.  Harrison  County,  54  Tex.  119. 

354.  Lietiug  property  iu  wrong 
name. — Listing  of  railroad  property  in  a 
wrong  name  forms  no  ground  for  enjoining 
the  collection  of  the  tax  thereon.  The  Rev- 
enue Act,  §  253,  makes  all  taxes  on  real  estate 
a  lien  on  the  same  from  and  after  the  first  day 
of  May  in  the  year  it  is  assessed,  without  re- 
gard to  its  ownership.  Union  Trust  Co.  v. 
Weber,  3  Am.  6*  Eng.  R.  Cas.  583. 96  ///.  346. 

A  construction  company,  bound  by  its 
contract  to  construct  and  equip  a  railroad, 
purchased  and  owned  the  rolling  stock  and 
other  personal  property  used  in  the  work  of 
construction  on  the  first  day  of  May  in  a 
certain  year,  when  the  property  was  listed 
for  taxation.  Held,  that  the  person  making 
the  return  to  the  county  clerk,  not  being 
the  agent  or  superintendent  of  the  railroad 
company,  had  no  authority  to  act  for  the 
company,  and  the  collection  of  the  tax  as 
against  the  railroad  company  should  be  en- 
joined. Union  Trust  Co.  v.  Weber,  3  Am. 
6-  Eng.  R.  Cas.  $83.  96  ///.  346. 

355.  Omission  of  other  property 
subject  to  asaessment.  —  Conceding  a 
statute  of  Iowa  exempting  railroad  compa- 
nies from  their  due  proportion  of  taxation 
t3  be  unconstitutional,  the  omission,  pur- 
suant to  such  statute,  to  tax  the  property 
of  railroad  companies  the  same  as  that  of 
individuals  does  not  render  void  a  tax 
levied  upon  the  property  of  others  which  is 


1008 


TAXATION,  356-35 r. 


i  ;if' 


■•ir-'ji 


,1'  .1 


i*i-' 


liible  to  taxation ;  and  hence  the  owner  of 
property  properly  asseMed  cannot,  on  the 
ground  of  an  omitson  to  assess  other 
property  subject  to  taxation,  enjoin  the 
collection  of  taxes  against  his  own  property. 
Cs'iy  of  Musciitin*  v.  Mississippi  &*  M.  R. 
Co.,  I  Dill.  {U.S.)  S36. 

Omissions  or  exemptions  purposely  made 
under  a  misapprehension  of  the  law.  and  in 
the  belief  that  the  property  is  not  taxable, 
are  not  sufficient  ground  for  enjoining  the 
collection  of  a  tax  upon  other  property 
which  is  otherwise  legally  imposed.  Bur- 
UngtOH  &»  M.  R.  R.  Co.  V.  Seward  County 
Com'rs,  10  Neb.  2ll,^N.  W.  Rep.  1016. 

Accidental  omission,  or  intentional  omis- 
sion under  mistake  of  law,  of  taxable  prop* 
erty  is  no  ground  for  enjoining  the  collection 
of  taxes  on  property  which  is  assessed. 
Burlit^ton  &*  Af.  R.  R.  Co.  v.  Saline  County 
Com'rs,  7  Am.  **  Eng:  R.  Cas.  347.  12  Neb. 
396,  i\  N.  fV.  Rep.  854.— Reviewing  Bur- 
lington &  M.  R.  R.  Co.  V.  Seward  County 
Com'rs,  10  Neb.  211. 

356.  Overvaluation  or  assessment. 
—Where  no  fraud  is  charged  in  the  assess- 
ment of  railroad  property,  a  chancellor  will 
not  be  warranted  in  restraining  the  collec- 
tion of  a  tax  levied  upon  it  merely  because 
in  his  judgment  the  assessing  board  has 
overvalued  it.  St.  Louis,  I.  M.  &*  S.  R.  Co. 
V.  Wortken,  41  Am.  &»Eng.  R.  Cas.  589,  52 
ArJt.  529, 135.  IV.  Rep.  254. 

On  a  bill  to  enjoin  the  collection  of  taxes, 
on  the  alleged  ground  that  the  property  has 
been  doubly  assessed,  once  by  the  state  board 
of  equalization  and  o..ce  by  the  local  assess- 
ors, when  such  allegation  is  denied  by  the 
answer  the  burden  of  proof  is  on  the  com- 
plainant to  prove  the  fact  of  double  assess- 
ment, substantially  as  alleged.  Chicago,  B. 
&»  Q.  R.  Co.  V.  Paddock,  7$  ///.  616.— Fol- 
lowing Chicago,  B.  A  Q.  R.  Co.  v.  Cole,  7$ 
111.  $91. 

A  bill  to  enjoin  the  collection  of  the  tax 
of  a  company  charged  that  the  state  board 
of  equalixation  assessed  the  capital  stock  of 
the  company,  including  its  franchise,  be- 
yond its  actual  value,  and  that  in  making 
this  assessment  they  added  to  what  they 
had  determined  the  value  oi  the  capital 
stock,  not  only  the  indebtedness  of  the  com- 
pany, but  also  the  indebtedness  of  six  other 
companies  of  which  it  was  lessee,  one  of 
which  lay  without  the  state,  for  the  pay- 
ment of  none  of  which  the  company  was 
liable,  such  indebtedness  of  other  companies 


so  added  being  $6,756,000.  This  latter 
fact  was  admitted  by  a  demurrer,  and  the 
court  below  sustained  the  demurrer.  Held, 
;hat  the  court  erred  in  sustaining  the  de- 
murrer ;  that  it  was  improper  to  take  into 
consideration  the  indebtedness  of  the  other 
companies  in  fixing  the  valuation  of  the 
property  of  the  company  seeking  to  entcin 
the  tax.     Chicago,  B.  &*  Q.  R.  Cc.  v.  Cole, 

7$  ///.  S9I. 
357.  Prevention  of  multiplicity  vt 

suits.— While  a  bill  will  not  lie  to  retain  a 
tax  merely  because  it  is  illegal,  yet  a  bill 
will  lie  by  a  railroad  company  where  it 
shows,  in  addition  to  the  illegality  of  the 
tax,  that  it  will  save  a  multiplicity  of  suits, 
and  that  the  tax  will  prevent  the  sale  and 
cloud  the  title  of  a  large  amount  of  real 
estate  that  the  company  is  offering  for  sale. 
C/nioH  Pac.  R.  Co.  v.  Cheyenne,  113  6^  S. 
516,  s  Sup.  Ct.  Rep.  601. 

Equity  will  interfere  to  enjoin  the  collec- 
tion of  an  illegal  tax  upon  railroad  property, 
where  it  appears  that  if  the  tax  is  paid  it 
will  require  some  forty  suits  to  recover 
back  the  money ;  and  a  federal  court  will 
apply  the  remedy  notwithstanding  a  state 
statute,  passed  since  the  company  was  char- 
tered, prohibits  injunctions  against  the 
collection  of  taxes.  Louisville  &*  N.  R. 
Co.  V.  Gaines,  2  FUpp.  (U.  S.)  621,  3  Fed. 
Rep.  266. 

Where  a  bill  shows  not  only  that  a  tax  is 
illegal,  but  that  if  not  enjoined  a  multi- 
plicity of  suits  will  arise  and  a  cloud  be  cast 
upon  the  owner's  title,  and  that  he  has  no 
adequate  remedy  at  law,  it  presents  a  case 
of  equity  cognizance.  Union  Pae.  R.  Co.  v. 
McShane,  3  Dill.  ( U.  5.)  303. 

A  bill  in  such  case  to  enjoin  the  collection 
of  state,  county,  and  school  taxes,  which 
joins  as  defendants  the  various  counties 
through  which  the  railroad  runs,  is  not 
multifarious,  where  the  question  on  which 
the  case  turns  is  common  to  all  and  the 
counties  are  mere  agencies  of  the  state  as  to 
that  part  of  the  taxes  which  they  must  pay 
into  the  state  treasury.  Union  Pae.  R.  Co, 
v.  McShane,  3  Dill.  {U.  S.)  303.  Northern 
Pae.  R.  Co.y.  tValher.  47  Fed.  Rep.  681. 

The  remedy  by  injunction  against  the 
collection  of  an  invalid  tax  is  available  where, 
although  the  pleadings  did  not  make  out  a 
case  for  such  relief,  the  parties  stipulated 
certain  facts  going  to  show  that  a  multl* 
plicity  of  suits  would  be  avoided  by  juris- 
diction  being  Uken  in  equity.  PkOeuUlpkUtt 


TAXATION,  358-361. 


lODO 


9.  This  latter 
nurrer,  and  the 
emurrer.  Htld, 
itaining  the  de* 
>er  to  take  into 
less  of  the  otiier 
aluation  of  the 
leking  to  enioin 
.  R.  Cc.  V.  Col*. 

nultlpllcity  cf 

>t  lie  to  retain  a 
legal,  yet  a  bill 
npany  where  it 
illegality  of  the 
iplicity  of  suits, 
snt  the  sale  and 
amount  of  real 
offering  for  sale. 
lettne,  113  f.  S. 

njoin  the  coUec- 
lilroad  property, 
e  tax  is  paid  it 
uits  to  recover 
deral  court  will 
itanding  a  state 
npany  was  char- 
ns  against  the 
ville  &*  N.  R. 
S.)  621,  3  Fed. 

nly  that  a  tax  is 
oined  a  niulti- 
a  cloud  be  cast 
that  he  has  no 
presents  a  case 
H  Pae.  R.  Co.  v. 

in  the  collection 
ol  taxes,  which 
arious  counties 
id  runs,  is  not 
istion  on  which 

to  all  and  the 
>f  the  state  as  to 
1  they  must  pay 
nioH  Pac.  R.  Co. 

303.  NorthtTH 
td.  Rep.  68 1. 
on  against  the 
available  where, 
not  make  out  a 
irties  stipulated 
that  a  multi< 
roided  by  juris- 
PkiUuhlpMei^ 


IV.  &»  B,  R.  Co.  V.  Ntary,  $  Dil.  Ck.  600.  8 
Atl.  Rep.  363. 

358.  Parties.— A  new  corporation  de- 
riving title  under  foreclosure  of  a  railroad 
mortgage  is  not  entitled  to  file  a  bill  of  re* 
vivor  to  a  suit  formerly  commenced  by 
stockholders  of  the  company  to  enjoin  cer- 
tain county  officers  from  the  collection  of 
taxes  thereon.  Keokuk  &*  IV.  R.  Co.  v. 
Scotland  County.  152  U.  S.  318,  14  Sup.  Ct. 
Rep.  605. 

350.  Bill,  complaint,  or  petition. 
— A  statement  in  a  bill  to  enjoin  the  collec- 
tion of  a  tax  against  a  railroad  that  the 
assessment  was  outrageously  exorbitant, 
and  was  fraudulently  made,  without  show- 
ing in  what  the  overvaluation  consists,  and 
giving  no  facts,  is  not  sufficient  to  enjoin 
the  collection  of  the  tax.  A  mere  allegation 
of  fraud  is  not  sufficient,  and  an  overvalua- 
tion will  not  of  itself  estiiblish  fraud.  Union 
Trust  Co.  V.  Weber,  3  Am.  6-  Eng.  R.  Cas. 
S83.  96  ///.  346. 

Where  a  company  files  a  bill  ior  an  in- 
junction alleging  that  its  lands  are  exempt 
from  taxation  under  a  statute  which  re- 
quires railroad  companies  to  pay  a  certain 
amount  in  lieu  of  direct  taxes  on  their  prop- 
erty, except  such  property  as  is  not  neces- 
sary for  the  operation  of  the  road,  an  aver- 
ment in  the  bill  that  the  lands  are  necessary 
for  the  proper  operation  of  the  road  is 
equivalent  to  an  allegation  that  they  are 
actually  used  for  such  purpose.  Marquette, 
H.  &»  O.  R.  Co.  v.  Marquette,  35  Mich.  504, 
16  Am.  Ry.  Rep.  179. 

In  an  action  to  restrain  by  injunction  the 
collection  of  a  tax  complained  of  as  errone- 
ous, a  complaint  which  does  not  aver  that 
the  plaintiff  sought  the  redress  provided  for 
in  said  statute,  or  tendered  the  amount 
admitted  to  be  due,  is  bad  on  demurrer. 
Northern  Pac.  R.  Co.  v.  Patterson,  10  Mont. 
90,  24  Pae.  Rep.  704.— Following  Dundee 
Mortgage  Trust  In  v.  Co.  v.  Charlton,  13 
Sawy.  (U.  S.)  25. 

A  petition  seeking  to  enjoin  the  collec- 
tion of  a  tax  on  railroad  property,  where  it 
appears  that  the  tax  is  only  excessive,  must 
allege  that  the  company  is  ready  to  pay  the 
taxes  admitted  to  be  due  and  that  the  com- 
pany has  used  every  means  provided  by  law 
for  its  relief.  Rio  Grande  R,  Co.  v.  Scanlan, 
44  Tex.  649. 

A  petition  for  an  injunction  to  restrain  the 
sale  of  land  for  taxes  assessed  under  Tex. 
Act  of  Aug.  at,  1876,  and  which  taxet  were 
7  D.  R.  D.— 64 


alleged  to  be  excesiive,  is  not  sufficient  to 
authorize  the  writ,  if  the  petition  shows  no 
excuse  for  the  failure  of  the  plaintiff  to  take 
proper  steps  to  refer,  at  the  proper  time,  the 
valuation  complained  of  to  the  board  of 
equalization.  Houston  &>  T.  C.  R.  Co.  v. 
Presidio  County,  53  Tex.  518. 

When  a  party  applies  to  a  circuit  court  to 
enjoin  the  collection  of  taxes,  or  the  collec- 
tion of  part  of  a  tax,  if  there  is  any  part 
which  he  admits  to  be  due  or  just,  or  which 
the  court  can  see  in  the  statement  made  in 
the  bill  ought  to  be  paid,  there  must  be  an 
allegation  in  the  bill  conforming  to  the  fact 
that  he  has  paid  it  or  tendered  it ;  and  it  is 
not  a  sufficient  allegation  to  come  and  say 
that  he  is  willing,  or  even  that  he  has  paid 
it  into  the  court,  because  the  state  is  not  to 
be  stayed  in  its  revenue,  which  is  admitted 
to  be  due,  in  that  way;  and  a  party  claim- 
ing that  he  will  not  pay  his  taxes,  or  any 
portion  of  them,  cannot  screen  himself,  dur- 
ing the  course  of  a  long  litigation,  from  pay- 
ing that  which  must  be  paid,  or  ought  to  be 
paid,  by  setting  up  a  contest  over  that  which 
is  doubtful,  and  the  payment  of  which  may 
or  may  not  be  necessary.  Parmley  v.  St. 
Louis,  I.  M.  &*  S.  R.  Co.,  3  Dill.  (U.  5.)  25. 

300.  Demurrer— Evhlence.— Where 
a  bill  to  enjoin  the  collection  of  a  tax  on  a 
railroad  alleges  that  the  road  as  organized 
was  exempt  from  taxation,  and  that  exemp- 
tion passed  to  and  vested  in  the  complain- 
ant as  purchaser  of  the  road,  the  truth  of 
the  allegation  is  not  admitted  by  a  de- 
murrer. A  demurrer  cannot  admit  a  fact 
impossible  in  law.  Louisville  S^  A^  R.  Co. 
V.  Palmes,  13  Atn.  &*  Eng.  R.  Cas.  380,  109 
U.  S.  244,  3  Sup.  Ct.  Rep.  193. 

The  admission  in  evidence  of  a  tax  dupli- 
cate showing  that  one  who  seeks  to  enjoin 
the  collection  of  a  railroad  tax  is  delinquent 
as  to  other  taxes  is  not  objectionable,  //il/ 
V.  Probst,  120  Ind.  528,  22  N.  E.  Rep.  664. 

301.  Hearing  —  Postponement.  — 
A  bill  was  filed  to  enjoin  the  collection,  by 
the  tax  collector  and  sheriff,  of  certain  fi. 
fas.  issued  against  a  railroad  for  state  and 
county  taxes,  on  the  ground  that  they  were 
illegal  and  that  the  legal  taxes  had  been  re- 
turned and  paid  to  the  comptroller-general, 
and  upon  a  hearing  it  was  shown  that  com- 
plainant's solicitors  had  written  to  the 
comptroller-general  for  certified  copies  of 
the  tax  returns,  and  in  reply  had  received  • 
letter,  dated  two  days  before  the  hearing, 
in  which   the   comptroller-general   stated 


1010 


TAXATION,  862, 303. 


«' 


i 


1   i 


that  he  had  written  to  the  tax  collector  to 
recall  tht  Jl./as.  sought  to  be  enjoined  and 
to  stop  any  further  proceedings,  and  to 
notify  complainant's  solicitors.  He/d,  that 
on  such  a  showing  the  hearing  should  have 
been  postponed  and  time  allowed  to  obtain 
the  depositions  of  the  comptroller  and  tax 
collector.  Savannah,  F.  S-  W.  R.  Co.  v. 
Morton,  71  Ga.  24. 

302.  Grautiiig  liOunction  pen- 
dente lite. — Where  all  the  facts  of  a  case 
make  it  apparent  that  the  collected  tax 
upon  the  entire  property  of  the  company, 
without  regard  to  the  limitations  contained 
in  its  charter,  would  be  unconstitutional, 
the  chancellor  has  a  right  to  enjoin  further 
proceedings  until  the  final  hearing  of  the 
cause.  IVright  v.  Southwestern  K.  Co.,  64 
Ga.  783. 

A  temporary  injunction  was  granted  re- 
straining a  county  treasurer  and  the  state 
treasurer  from  paying  interest  on  certain 
county  bonds  issued  in  aid  of  a  railroad. 
While  the  suit  was  still  pending  and  the 
temporary  injunction  in  force,  the  taxing 
officers  of  the  county  levied  and  were  pro- 
ceeding to  collect  a  tax  from  the  railroad 
company  and  others  to  pay  interest  on  the 
bonds :  whereupon  the  company  filed  a  bill 
to  enjoin  the  collection  of  the  tax  on  the 
ground  that  the  same  was  illegal  and  in 
violation  of  the  temporary  injunction.  Held, 
that  the  granting  of  the  injunction  deter- 
mined no  rights,  and  that  the  tax  could  be 
collected  while  it  was  in  force.  Leaven- 
worth, L.  6*  G.  R.  Co.  v.  Clemmans,  14 
Kan.  82. 

Where  an  injunction  is  sought  to  restrain 
the  collection  of  taxes  on  railroad  property, 
on  the  ground  that  the  assessment  has  been 
adjudged  illegal  and  void,  but  it  appears 
that  the  judgment  has  been  reviewed 
on  appeal  and  reversed,  and  the  assessment 
in  all  respects  confirmed,  there  is  no  longer 
any  basis  for  the  relief  asked  for,  and 
an  order  denying  a  temporary  injunction 
nust  be  affirmed.  Delaware,  L.  S*  W.  R. 
Co.  V.  Gordon,  46  N.  V.  S.  R.  733,  19  JV.  Y. 
Supp.  533,  64  Hun  637,  mem. 

An  injunction  pendente  lite,  in  an  action 
to  test  the  constitutionality  of  N.  Car.  Act 
of  1879,  ch.  158,  relating  to  railroad  taxa- 
tion, will  not  be  granted  to  restrain  proceed- 
ings under  the  provisions  of  the  act,  except 
to  restrain  the  collection  of  the  tax,  until 
the  merits  of  the  controversy  can  be  deter- 
mined.   The  judicial  authority  should  be 


reluctant  to  interfere  and  obstruct  the  ezt* 
cution  of  the  expressed  legislative  will,  on 
the  ground  that  the  end  to  be  accomplished 
by  the  use  of  the  prescribed  means  is  un- 
warranted by  the  Constitution,  until  some 
substantial  right  of  the  complaining  party 
is  about  to  be  injuriously  affected.  North 
Carolina  R.  Co.  v.  Alamance  Com'rs,  82  N. 
Car.  2S9. 

Under  special  circumstances,  a  temporary 
injunction  to  restrain  the  collection  of 
retrospective  taxes  on  a  company's  prop- 
erty, for  all  the  years  between  i860  and  1871, 
was  allowed.  Moore  v.  Holliday,  4  Dill. 
(l/.S.)  52. 

ZI.  BH0LI8H  POOR  BATII  AVD  OTEIB 
BATB8. 

363.  Company  liable  an  occupier. 

— A  company  which  is  the  sole  occupier  of 
wharvco  rented  by  it  under  agreement  that 
wharfage  dues  were  reserved  to  the  owners 
and  were  paid  direct  to  them  by  the  owners 
or  consignees  of  goods  shipped  is  liable  to 
be  assessed  for  the  poor  rate  in  respect  of 
the  full  ratable  value  of  the  premises,  in- 
cluding the  wharfage  dues,  without  regard 
to  the  amount  of  benefit  which  it  derived 
from  the  occupation.  Rtg^.  v.  Rhymney  R. 
Co.,  L.  R.  4  Q.  B.  276, 10  B.  *•  S.  198,  38  L. 
J.  M.  C.  75,  17  W.  R.  530. 

A  line  of  railway  is  "  land  "  within  the 
meaning  of  3  &  4  Will.  IV.,  c.  90,  §  33,  pro- 
viding that  the  owners  and  occupiers  of 
houses  and  property  (other  than  land)  shall 
be  rated  a  rate  three  times  greater  than 
that  at  which  the  owners  and  occupiers  of 
land  shall  be  rated.  R^.  v.  Midland  R, 
Co.,  L.  R.  10  Q.  B.  389,  44  L.J.  Q.  B.  137, 
32  £.  r.  753.23  W.R.^ii, 

The  E.  C.  R.  Co.  was  the  sole  owner  of 
a  railway  station,  and  in  1848,  by  an  agree- 
ment by  deed,  the  N.  W.  R.  Co.  was  for 
999  years  to  have  exclusive  use  of  part 
of  the  station,  and  the  joint  use  with  the 
E.  C.  Co.  of  another  part  at  a  certain  sum 
per  annum.  The  occupation  of  the  station 
afterwards  became  of  much  less  value  to 
the  N.  W.  Co.  than  the  annual  sum  to  be 
paid  by  it,  under  the  agreement,  to  the  other 
company.  Held,  that  the  eflfect  of  the 
deed  (as  regarded  the  part  of  the  station 
jointly  occupied)  was  only  to  give  to  the  N. 
W.  Co.  the  right  to  the  joint  occupation, 
and  that  the  E.  C.  Co.  was  ratable  as  the 
■ole  occupier  of  this  part  of  the  itation, 


TAXATION,  364,  366. 


1011 


»truct  the  exc* 
slative  will,  on 
le  accomplished 
i  means  it  un- 
ion,  until  some 
nplaining  party 
flfected.  NortA 
t  Com'rs,  8a  A': 

:es,  a  temporary 
t  collection  of 
>mpany'8  prop- 
n  i860  and  1871, 
illiday,  4  Dill. 


I  An  OTHIB 


an  occupier. 

lole  occupier  of 
agreement  that 
1  to  the  owners 
n  by  the  owners 
>ped  is  liable  to 
e  in  respect  of 
le  premises,  in- 
witliout  regard 
liich  it  derived 
V.  Rhymnty  R. 
&*  S.  198.  38  L. 

nd  "  within  the 

c.  90.  §  33.  pro- 
d  occupiers  of 
ban  land)  shall 
s  greater  than 
nd  occupiers  of 
V.  Midland  R. 
\..J.  Q.  B.  137. 

sole  owner  of 

8,  by  an  agree- 

R.  Co.  was  for 

'e  use  of  part 

use  with  the 

a  certain  sum 
1  of  the  station 
less  value  to 
ual  sum  to  be 
!nt,  to  the  other 

effect  of  the 
of  the  station 
>  give  to  the  N. 

nt  occupation, 

ratable  as  the 
of  the  station, 


and  that  in  rating  it  for  such  occupation 
the  sum  paid  by  the  N.  W.  Co.  must  be  con« 
sidered  as  part  of  the  profits.  Rtg.  v.  Sht' 
rard.  33  L.J.  At.  C.  $.  a  Ry.  «-C  T.  Cai.  18. 
Railway  sleepers  are  substantially  an  ad- 
dition to  the  freehold,  and  give  an  addi- 
tional  value  to  the  land.  They  are  therefore 
properly  included  as  an  item  of  value  in  an 
assessment.  Great  Wtsttrn  R.  Co.  v.  Mtlks- 
ham,  34/  P.  102,  2  Ry.  &*  C.  T.  Cas.  20. 

In  ascertaining  how  much  of  the  adjacent 
land  occupied  by  a  railway  formed  part  of 
the  stations  and  an  element  of  their  rat- 
able value  as  distinguished  from  the  line 
itself,  all  sidings,  for  whatever  purpose 
used,  should  be  included,  and  only  the 
average  quantity  of  the  land  required  for 
the  main  tracks,  and  only  the  permanent 
way  necessary  to  such  tracks  at  any  point  in 
their  length,  should  be  excluded.  London 
6-  A'.  W.  R.  Co.  T.  Guardians  of  Poor,  a  Ry. 
&*  C.  T.  Cas.  240. 

364.  No  exemption  In  license  to 
use.— A  company  entered  into  agreements 
giving  to  other  companies]the  use  of  its  line 
for  a  long  term  on  an  annual  payment,  but 
keeping  part  of  the  traffic  in  its  own  hands, 
doing  the  repairs,  paying  the  servants,  and 
receiving  a  rent  for  a  crossing  on  the  line. 
Held,  tliat  the  agreement  showed  that  the 
company  had  not  parted  with  the  posses- 
sion, and  therefore  that  it  was  liable  to  be 
rated  in  respect  of  its  occupation  of  the 
railway.  Leeds,  B,  &*  H.  R.  Co.  v.  Armley, 
25/.  P.  711,  2  Ry.  **  C.  T.  Cas.  19. 

A  company  permitted  stables  within  its 
station  premises  to  be  used  by  certain  coal 
owners,  under  an  a^^reement  by  which  the 
coal  owners  agreed  that  they  would  pay  to 
the  company  the  cleat  monthly  rent  or  sum 
of  twenty-five  shillings,  and  agreed  so  long 
as  they  should  occupy  or  use  the  stables 
to  observe  the  by-laws,  rules,  and  regula- 
tions which  should  for  the  time  being  be 
issued  or  prescibed  by  the  company  for 
the  government  and  use  of  the  railway  sta- 
tions, premises,  and  conveniences,  and 
further  agreed  to  quit  and  deliver  up  pos- 
session of  the  stables  at  the  expiration  of 
one  month  after  notice  in  writing.  The 
company  did  not  exercise  any  control  over 
or  use  the  stables  during  the  currency  of 
the  agreement,  and  none  of  the  by-laws  had 
any  application  to  the  stables.  Held,  that 
the  company  was  liable  to  be  rated  to  the 
poor  rate  in  respect  of  the  stables,  for  that. 
on  the  true  construction  of  the  agreement, 


having  regard  to  the  situation  of  the  stables 
it  was  the  intention  of  the  company  to  re- 
tain control  over  them,  and  not  to  part  with 
the  exclusive  occupation  to  the  coal  owners. 
London  d*  A^.  IV.  R.  Co.  v.  Buckmaster,  L. 
R.  10  Q.  B.  70,  44  L.J.  M.  C.  29.  2  Ry.  &* 
C.  T.  Cas.  20. 

News  agents,  by  agreement  with  a  com> 
pany,  obtained,  in  consideration  of  yearly 
payments,  the  exclusive  right  to  sell  news- 
papers, books,  and  certain  other  articles  at 
a  railway  station.  The  agreement  described 
them  as  tenants,  provided  that  the  yearly 
payments  should  be  recoverable  as  rent  in 
arrear,  gave  them  power  to  erect  bookstalls 
secured  to  them  access  at  reasonable  times 
to  the  station,  reserved  to  the  company 
power  to  choose  and  vary  the  places  for  the 
bookstalls  and  to  prevent  the  sale  of  ob- 
jectionable papers,  and  gave  to  the  station 
master  control  over  the  news  agents'  ser- 
vants. The  news  agents  erected  bookstalls 
at  a  station  and  had  the  exclusive  use 
of  them,  and  these  stalls  were  closed  at 
night  with  shutters,  and  were  locked  up, 
the  keys  being  kept  by  their  servants.  No 
rights  of  ingress  and  egress  to  and  from  the 
station,  or  of  access  to  the  bookstalls,  were 
exercised  by  the  news  agents,  their  agents 
or  servants,  except  under  the  provisions  and 
for  the  purposes  of  the  agreement.  The 
company  was  assessed  to  the  poor  rate  (or 
the  station  generally.  Held,  that  the  news 
agents  had  no  "  exclusive  occupation  "  of 
any  portion  of  the  platforms,  so  as  to  render 
them  liable  to  be  rated  in  respect  of  the 
bookstalls.  Smith  v.  Lambeth  Assessment 
Committee,  L.  R.  10  Q.  B.D.  irj,  \2L.J.  M. 
C.  I,  4  Ry.  *•  C.  T.  Cas.  xvii. 

365.  Making  up  deficiency  caused 
by  making  railway.  —  Defendant  com- 
pany, under  its  act  of  incorporation,  was 
liable  to  make  good  the  deficiency  in  the 
assessment  to  poor  rates  caused  by  taking 
lands  in  a  parish  for  its  railway,  until  the 
entire  system  of  railways  was  completed. 
R^.  v.  Metropolitan  Dist.  R.  Co.,  L.  R.  6Q. 
B.  698.  40  L./.  M.  C.  113.— Overruled  in 
East  London  R.  Co.  v.  Whiteichurch,  L.  R. 
7  H.  L.  81,  22  W.  R.  665,  43  L-  J-  M.  C.  159, 
30L.  T.  412. 

By  the  Lands  Clauses  Consolidation  Act, 
1845,  8  133  (8  Vict.  c.  18),  the  promoters  of 
an  undertaking  are  to  make  good  the  defi- 
ciency in  the  assessment  for  poor  rates  aris- 
ing from  their  being  in  possession  of  lands 
liable  to  be  assessed  thereto.    Held,  that. 


13 1 1 
f'-i! 


lOlS 


TAXATION,  366-3«0. 


rl''' : 


I  ;f 


r^ 


I. 


!!^' 

1I3K 


i 


I*" 


the  borough  rate  under  45  ft  46  Vict.  c.  so, 
1 14s.  and  the  county  rate  under  1$  &  16 
Vict.  c.  81,  {  36,  being  respectively  made 
chargeable  on  the  poor  rate,  the  deficiency 
in  the  assessment  (or  the  poor  rate  which 
the  promoters  of  the  undertaliing  are  liable 
to  make  good  includes  any  deficiency  in 
respect  of  amounts  raised  for  borough  rate 
and  county  rate,  as  well  as  any  deficiency  in 
the  assessment  for  poor-law  purposes  prop* 
erly  so  called.  Farmer  v.  London  6*  N.  fV. 
R.  Co.,  20  Q.  B.D.  788, 6  Ry.  *-  C.  T.  Cas.  Ixx. 

860.  Parochial  principle  of  osseas- 
ment. — The  annual  gross  receipts  over  an 
entire  system  of  tramways  furnish  the  proper 
basis  for  estimating  the  rent  in  the  assess* 
ment  of  rates,  and  the  net  receipts  in  each 
parish  are  the  criterion  of  the  ratable  value 
therein.  London  Tramways  Co.  v.  Lambtth 
Autssmmt  Committeo,  31  L.  T,  319. 

A  line  of  railway  in  a  parish  should  be 
rated  on  the  basis  of  the  receipts  derived 
from  the  enhancement  of  the  traffic  on 
other  parts  of  the  system,  and  not  on  the 
basis  of  the  gross  earnings  in  a  parish, 
where,  owing  to  competition,  they  were 
exhausted  by  the  working  expenses.  Lon- 
don A*  N.  W.  R.  Co.  V.  Irthlingborough,  35 
L.  T.  337. 

The  ratable  value  of  the  portion  of  a  rail- 
way in  any  particular  parish  is  to  be  deduced 
from  a  comparison  between  the  profits  and 
the  outgoings  arising  in  that  parish,  and 
not  by  treating  the  whole  line  as  one  entire 
subject-matter,  and  the  whole  ratable  value, 
however  constituted,  as  entire,  and  then 
dividing  it  among  the  several  parishes  ac- 
cording to  the  length  of  line  in  each.  Qnten 
y.  London,  B.  **  S.  C.  R.  Co.,  L.R.i$  Q.  B. 
313,  6  Railw.  Cas.  440,  1$  Jur.  373,  20  L.J. 
M.  C.  134. 

In  imposing  rates  upon  a  company,  all 
expenses  necessary  for  keeping  the  property 
at  the  value  which  is  made  the  measure  of 
assessment  may  be  considered,  and  not  the 
amount  at  which  the  company  is  rated  in 
another  parish.  Queen  v.  London,  B.  &*  S. 
C.  R.  Co.,  L.R.  1$  Q.  B.  313,6  Railw.  Cas. 
440,  II  Jur.  372,  20  L.J.  At.  C.  124. 

307.  Same  profits  not  assessed  In 
more  than  one  parish.— Where  a  rail- 
way belongs  to  two  companies,  each  hold- 
ing a  moiety  of  the  line,  but  having  running 
powers  over  its  entire  length,  it  is  error  for 
the  overseers  of  the  parish  through  which 
that  portion  of  the  railway  belonging  to  one 
companjr  pasted  to  rate  the  other  company. 


Midland  R.  Co.  v.  Badgwerth,  11  Jur.  N. 
S.  14,  34  L.  J.  M.  C.  3$. 

The  ratable  value  of  a  portion  of  a  railway, 
consisting  of  the  net  annual  profits  from  the 
traffic  upon  the  portion  rated,  cannot  be  in- 
creased by  any  part  of  the  profits  earned 
by  the  same  traffic  upon  other  portions  of 
the  line.  Great  Eastern  R.  Co.  v.  Hattgh- 
ley,  L.  R.  I  Q.  B.  666,  i2/«r.  A'.  S.  596.  3J 
L.J.  M.  C.  339,  14  L.  T.  548,  14  IV.  R.  779. 
—Followed  in  Reg.  v.  Llantrissant,  L.  R. 
4  Q.  B.  354,  38  L.  J.  M.  C.  93,  20  L.  T.  364, 
17  W.  R.  671. 

A  railway  can  only  be  rated  upon  its  value 
within  the  rating  parish,  although  it  is  con- 
nected with  and  rented  by  another  railway 
in  a  different  parish ;  it  cannot  in  such  case 
be  rated  at  an  increased  amount  in  respect 
of  its  value  in  bringing  traffic  to  the  other 
line.  Reg.  v.  Llantrissant,  38  L.  J.  At.  C. 
93,  L.  R.  4  Q.  B.  354,  17  W.  R.  671,  20  L. 
T,  364. 

308.  Prime  cost  immaterial.  —  In 
assessing  rates  against  a  railway  the  amount 
to  be  allowed  as  a  deduction  from  the  rat- 
able value  for  interest  on  capital  and  tenant's 
profits  is  to  be  calculated  upon  the  actual 
value  of  the  rolling  stock  at  the  time  wiicn 
the  rate  is  made,  and  not  upon  its  cost 
price.  Reg.  v.  North  Staffordshire  R.  Co., 
n  Jur.  N.  S.  363,  30  L.  J.  At.  C.  68,  3  El.  6* 
El.  392,  9  W.  R.  235.  3  L.  T.  554. 

300.  Ratability  of  company  as  a 
carrier. — In  assessing  the  ratable  value  of 
a  railway,  no  account  sliould  be  taken  of  the 
payment  to  it  by  another  company  under 
agreement  of  such  a  sum  as  may  be  neces- 
sary to  make  a  certain  dividend  on  the  cost 
of  the  line  in  consideration  of  the  making 
of  a  part  of  it  and  of  working  it  for  the  ben- 
efit of  the  latter  company.  Newmarket  R. 
Co.  V.  St.  Andrew,  3  El.  6-  Bl.  94,  3  C.  L. 
R.  621,  18  Jur.  573,  33  L.  J.  At.  C.  76,  7 
Railw.  Cas.  858. 

The  rent  of  a  leased  line  of  railway,  or  the 
amount  of  the  annuities  paid  to  the  stock- 
holders in  lieu  of  rent,  when  such  railway  is 
consolidated  with  the  lessee  company,  is  not 
the  sole  or  exclusive  criterion  of  the  rata- 
ble value  in  assessing  poor  rates  upon  such 
railway.  South  Eastern  R.  Co.  v.  Dorking,  7 
Raiha.  Cas.  877,  3  El.  6*  Bl.  491,  iS  Jur.  673, 
33  Z.  /.  At.  C.  84. 

In  ascertaining  the  ratable  value  of  a  line 
of  railway  an  amount  which  another  com- 
pany contributes  in  order  to  make  up  a 
dividend   of  a  certain  amount  under  an 


TAXATION,  870-872. 


1013 


h,  II  fur,  N. 

n  of  a  raOway, 
rofits  from  the 
cannot  be  in- 
profits  earned 
er  portions  of 
Co.  V.  Hatigh- 
N.  S.  $96.  3J 
14  »r.  /f.  779. 
trissant,  L.  R. 
,  20  L.  T.  364, 

upon  it!  value 
>ugh  it  is  con« 
other  railway 
It  in  such  case 
int  in  respect 
:  to  the  other 
I  L.  J.  At.  C. 
i?.  671,  20  L. 

Aterlal.  —  In 

ay  tlie  amount 
from  the  rat- 
al and  tenant's 
>on  the  actual 
ihe  time  when 
upon  its  cost 
'dshirt  R.  Co., 
C  68.  3  £/.  6* 

S54. 

iiipany  as  a 

ituble  value  of 
>e  taken  of  the 
)mpany  under 
may  be  neces- 
nd  on  the  cost 
>f  the  making 
it  for  the  ben- 
Newtnarkit  R. 
11.  94.  a  C.  L. 
r.  M.  C.  76.  7 

railway,  or  the 
I  to  the  stock- 
luch  railway  is 
impany,  is  not 
n  of  the  rata- 
tes  upon  such 
,  V.  Dorking,  7 
)l,i8/wr.  672, 

value  of  a  line 
another  com- 
o  make  up  a 
unt  under  ui 


agreement  for  the  construction  of  a  branch 
line  between  the  roads  of  the  two  companies 
ought  not  to  be  considered.  Ntvtmarkit  R, 
Co.  v.  St.  Andrtw,  7  Raibu.  Cat.  858.  3  El. 
&*  Bl.  94,  i8/w.  572,  23  L.  J.  M.  C.  76,  2  C. 
L.  R.f>2\. 

In  assessing  rates  against  a  company  as  to 
a  station  belonging  to  it,  but  occupied  also 
by  another  company,  the  money  paid  to  it 
by  such  other  company  should  form  a  part 
of  the  ratable  value  of  the  station.  Rtg.  v. 
FUtton,  30  L.J.  M.  C.  89,  3  El.  &*  El.  450, 
9  W.  R.  309,  3  L.  T.  689.  Rtg.  V.  Shtrard, 
llL.J.M.C.%. 

In  rating  a  railway  it  is  error  to  take  the 
annual  rent  as  the  basis  of  the  ratable  value 
without  regard  to  evidence  of  the  real  value. 
Reg.  V.  Eastern  Counties  R.  Co.,  \%Jur.  679, 
n. ,  7  Railw.  Cas.  900.  «. 

In  rating  a  branch  railway  chiefly  valuable 
as  a  feeding  line,  owing  to  its  connection 
with  lines  of  three  other  companies  from 
which  it  diverted  traffic  and  in  consequence 
of  which  it  was  worked  at  very  low  fares, 
the  fact  that  the  three  other  companies 
would  be  willing  to  pay  what  was  equivalent 
to  a  large  rent  for  it,  if  it  was  in  the  market, 
sliould  be  considered  in  ascertaining  the  rent 
at  which  it  might  reasonably  be  expected  to 
let  from  year  to  year.  Reg.  v.  London  &»  N. 
W.  R.  Co.,  L.  R.  9  Q.  B.  134.  22  W.  R.  263, 
29  L.  T.  910.  Reg.  V.  Bedford  U.  A.  Com- 
mittee, 43  L.  J.  M.  C.  81. 

The  rent  which  a  lessee  would  pay  for  a 
railway  is  the  amount  on  which  a  company 
is  to  be  assessed  to  the  poor  rate.  Reg.  v. 
London  &•  S.  W.  R.  Co..  2  G.  &*  I).  49.  6 
Jur.  686.  I  Q.  B.  558.  2  Railw.  Cas.  629. 

The  fact  that  other  parties  are  also  car- 
riers on  a  railway,  some  providing  locomo- 
tive power,  carriages,  etc..  for  themselves, 
and  others  finding  carriages  only  and  hiring 
power,  does  not  aflect  the  principle  that  the 
amount  on  which  a  railway  company,  acting 
as  a  carrier  over  its  own  line,  is  to  be  as- 
sessed to  the  poor  rate,  is  the  rent  which  a 
lessee  would  pay.  R^.  v.  Grand  Junction 
R.  Co..  ^Q.B.  18.  4  Railw.  Cas.  i,D.&*M. 
2yi,  S/Kr.  508. 13  L.J.  M.  C.  941. 

A  line  of  railway  in  a  particular  parish  is 
to  be  rated  in  the  proportion  that  the  re- 
ceipts in  such  parish  bear  to  the  receipts  of 
the  whole  line,  and  not  in  the  proportion 
which  the  length  of  the  line  in  the  parish 
bears  to  the  whole  line.  Rtg.  v.  London  6-» 
S.  W.  R.  Co.,  zG.&'D.  49.  6  Jur.  686.  i  Q. 
B.  558, 2  RaOw.  Cas.  639. 


Parochial  rates  may  be  assessed  against 
the  company  under  East  London  Railway 
Act.  1865,  $  128.  at  the  original  value  of 
the  land  taken  only  so  long  as  the  company 
has  not  substituted  another  property  capable 
of  assessment,  or  actually  assessed  in  the 
place  of  that  taken.  If  the  road  or  any  part 
thereof  is  completed  and  worked  within  any 
parish,  the  company  can  claim,  and  is  liable 
tn  be  assessed  in  respect  to  the  actual  letting 
value  of  the  road,  or  the  part  thereof  com- 
pleted and  worked,  whether  it  is  or  is  not  as 
valuable  as  the  property  for  which  it  is  sub- 
stituted, and  whether  the  road  authorized 
by  statute  has  or  has  not  been  completed. 
East  London  R.  Co.  v.  WhitecMurch,  43  L. 
J.  M.  C.  159.  22  IV.  R.  665.  L.  R.  7  //.  L. 
81.  30  Z.  7".  412;  reversittg  L.  R.  7  Ex. 
424.  42  L.J.  M.  C.  18,  27  L.  T.  494.  which 
reversed  L.  R.  7  Ex.  248.  ^\  L.J.  At.  C.  133, 
26  L.  T.  635,  20  W.  R.  705.— Overruling 
Reg.  V.  Metropolitan  Dist.  R.  Co..  L.  R.  6 
Q.  B.  698.  40L.  J.  M.  C.  113. 

370.  Ratable  value  when  paasen' 
ger  booked  through.— By  an  agreement 
between  two  separate  companies  (forming 
together  a  continuous  line)  it  was  stipulated 
'.nat  the  one  should  be  at  liberty  to  convey 
such  of  its  passengers  as  had  tickets  for  the 
entire  distance  over  the  line  of  the  other, 
paying  for  each  passenger  a  certain  sum 
by  way  of  toll  to  the  latter  company.  Held, 
that  in  estimating  the  gross  receipts  earned 
by  one  company  in  respect  of  portions  of  its 
line  running  through  diiTerent  parishes,  it 
was  allowable  for  the  company  to  deduct 
such  sums  as  had  been  received  by  it  and 
paid  over  to  the  other  company  in  pursu- 
ance of  the  agreement.  Reg.  v.  St.  Pancras, 
32  L.  J.  At.  C.  146,  2  Ry.  **  C.  T.  Cas.  18. 

371.  Authorized  toll  not  ratable 
if  not  charged.— A  company  was  em- 
powered by  act  of  parliament  to  levy  a  toll 
on  goods  passing  through  a  tunnel ;  it  did 
not  levy  it,  on  the  ground  that  if  it  did  the 
carriage  of  the  goods  would  be  lost  to  it. 
Held,  that  the  company  was  not  ratable  for 
such  toll.  Reg.  V.  Stockton  &*  D.  R.  Co.,  8 
L.  T.  422,  2  Ry.  6-  C.  T.  Cas.  19. 

372.  Terminal  charges.— In  rating  a 
railway,  terminal  charges  are  to  be  consid- 
ered as  part  of  the  general  earnings  of  the 
line,  and  not  of  the  stations  at  which  they 
were  earned.  Reg.  v.  Eastern  C.  R.  Co.,  9  Jur. 
N.  S.  1339.  32  L.J.  At.  C.  174.  ;  A  *-  5.  58. 

Terminal  charges  must  be  included  in 
estimating,  for  the   purpose  of  assessing 


1014 


TAXATION,  878. 


i^"  '* 


rates,  the  amount  of  the  gross  earnings 
and  expenses  of  the  railway  in  a  parish. 
/ftg:  V.  Eastern  Count  its  R.  Co.,  ^Jur,  N.  S. 

•339.  3a  ^-  /•  ^A  C.  174.  4  -ff.  *-  -S-  58- 

Terminals  must  be  brought  into  the  gross 
receipts  for  the  purpose  of  taxation,  and  con- 
fined to  the  line  of  railway  that  earns  them. 
Afanchtster.  S,  &*  L.  K.  Co.  v.  Guardians  of 
Poor,  2  A>.  &*  C.  T.  Cas.  53. 

Collection  and  delivery,  strictly  so  called, 
form  no  part  of  terminals  or  terminal  ser« 
vice,  and  being  performed  ofl  the  line  should 
not  in  any  way  be  brought  into  the  accounts 
(or  Kiting  purposes.  Where,  therefore,  they 
are  included  in  the  rates  for  conveyance,  as 
in  carted  rates,  the  cost  of  the  service  and 
reasonable  profit  thereon  should  be  deducted 
from  them  in  the  gross  receipts,  and  no  re- 
ceipt or  expenditure  relating  to  them  should 
•p|)ear  in  the  accounts.  Afanchtster,  S.  &* 
L.  R.  Co,  V.  Guardians  of  Poor,  3  Ry.  &•  C. 
T.  Cas.  53. 

Hocks  belonging  to  a  company  were  con- 
nected with  its  line  of  railway,  which  they 
helped  to  feed  with  traffic,  and  included 
warehouses,  siding,  and  rails  laid  down  over 
a  portion  of  the  docks  (so  called)  to  take 
goods  to  and  from  the  railway.  The  expen- 
diture on  account  of  the  docks  exceeding 
the  receipts,  they  possessed  no  ratable  value 
as  docks  beyond  that  of  unimproved  land. 
Hild,  as  a  matter  of  fact,  that  the  basins, 
wharves,  and  other  parts  belonging  to  the 
sea  transit,  being  strictly  within  the  defini- 
tion of  docks,  should  be  treated  as  such, 
and  rated  only  as  unimproved  land,  while 
the  buildings,  sidings,  and  rails  belong- 
ing to  the  land  transit  should  be  treated 
as  part  of  the  railway,  and  rated  as  a  por- 
tion of  the  adjoining  goods  station.  Man- 
chester, S.  6-  L.  R.  Co.  V.  Guardians  of 
Poor,  3  Ry.  &*  C.  T.  Cas.  53. 

873.  Effect  of  leases  and  runnlnir 
powbrs.  —  The  fact  that  a  leased  railway 
brings  additional  traffic  to  the  main  line 
which  derives  benefit  from  it  is  a  matter 
giving  additional  value  to  the  occupation  of 
■uch  railway  in  one  of  the  parishes  through 
which  it  passes,  and  is  to  be  considered  in 
fixing  its  ratable  value  for  assessment  pur- 
poses. South  Eastern  R,  Co.  v.  Dorking, 
7  Railw.  Cas.  877,  3  El.  &'  Bl.  491,  i8/«r. 
672,  23Z,./.  it/.  C.  84. 

A  line  of  railway  connecting  two  towns 
belonged  to  two  companies,  each  holding  a 
moiety  of  the  line  in  fee  simple,  and  enjoy- 
ing running  powers  over  its  entire  length. 


Held,  that  the  company  owning  the  line 
which  passed  through  the  parish  was  ratable, 
and  that  the  rate  ough'  to  be  made  upon 
the  principle  of  assessing  the  profits  made 
in  the  parish,  enhanced  by  the  right  to  run 
free  over  the  half  of  the  line  belonging  to 
the  other  company.  Great  Western  R.  Co, 
V.  Badgworth,  L.  R.  2  Q.  B,  251,  36  L.f.  M. 
C.  33,  2  Ry.  6-  C.  T.  Cas.  19. 

A  special  act  provided  that  another  corn* 
pany  should  have  the  right  to  run  its  trafllic 
over  a  part  of  the  line,  on  payment  of  a 
fixed  annual  rent.  The  rent  was  much  lest 
than  the  actual  value  of  the  traffic  passed 
over  that  part  of  the  line  by  the  lessee  com- 
pany. Held,  that  the  latter  company  could 
not  be  rated  for  poor  rate  in  respect  of  that 
traffic  at  a  higher  sum  than  the  fixed  rent. 
Altrincham  Union  v.  Chtshirt  Lints  Com' 
mittee,  15  Q.  B.  D.  597,  5  Ry.  &*  C.  T. 
Cas,  X. 

A  company  constructed  under  the  powers 
of  its  act  a  line  which  formed  a  connecting 
link  between  .he  lines  of  three  other  com- 
panies, and  for  some  time  retained  posses* 
sion  of  such  line,  taking  tolls  for  the  use  of 
it  by  such  other  companies.  Subsequently, 
by  an  agreement  between  the  first-mentioned 
company,  called  the  lessor,  and  the  three 
other  companies,  called  the  lessees,  which 
agreement  was  confirmed  by,  and  was  to 
have  the  same  effect  as  if  its  provisions  had 
been  enacted  in,  an  act  of  parliament,  the 
line  was  leased  to  the  lessees  in  perpetuity  at 
an  annual  rent,  and  the  lessees  were  empow- 
ered  to  use,  and  they  did  use,  such  line  in 
connection  with  their  respective  systems 
without  payment  of  tolls.  The  existence  of 
the  first-mentioned  company  was  continued 
by  the  confirming  act  for  certain  purposes, 
such  as  the  receipt  of  the  yearly  rent  and 
its  distribution  among  the  shareholders,  and 
there  was  a  provision  in  the  agreement 
which  by  necessary  implication  gave  power 
to  the  lessees  to  let  the  line  with  the  consent 
of  the  lessors  under  seal.  Held,  that,  hav- 
ing regard  to  the  provisions  of  the  agree- 
ment and  of  the  act  confirming  it,  the 
ratable  value  of  the  line  for  the  purposes  of 
the  poor  rate  was  not  to  be  ascertained  as  if 
it  were  an  integral  portion  of  the  lines  of 
the  three  companies  using  it,  but  was  to  be 
based  upon  the  rent  which  a  tenant  from 
year  to  year  might  reasonably  be  expected 
to  give  for  it  as  an  independent  line.  North 
«-  S.  W.  J.  R.  Co.  v.  Brentford  Union  As- 
sessment Committee,  L.Jt.tB  Q.  B.  D.  7401,— 


TAXATION,  374-377. 


1016 


nf;  the  line 
was  ratable, 
made  upon 
)rofits  made 
right  to  run 
>elonging  to 
si*rH  A\  Co. 
.  36  L./.Af. 

nother  com« 
un  its  traffic 
lyment  of  a 
IS  much  lest 
raffic  passed 
I  lessee  com- 
npany  could 
ipect  of  that 
:  fixed  rent. 
Lints  Com- 
y.  &*  C.   T. 

r  the  powers 
1  connecting 

other  com- 
ined  posses* 
)r  the  use  of 
iibsequently. 
t-mentioned 
d  the  three 
ssees,  which 
and  was  to 
ovisions  had 
liament,  the 
perpetuity  at 
vereempow- 
such  line  in 
ive  systems 
existence  of 
M  continued 
in  purposes, 
riy  rent  and 
holders,  and 

agreement 
gave  power 
I  the  consent 
d,  that,  hav- 
f  the  agree- 
ling  it,  the 
purposes  of 
rtained  as  if 
the  lines  of 
ut  was  to  be 
tenant  from 
be  expected 
line.  NortA 
f  Union  A$- 
B.  D,  740,— 


DtSTlNOtriSHtNO  Queen  v.  Great  Western 
R.  Co..  isQ.  B.  379. 1085. 

Mere  running  powers  enjoyed  by  one 
company  over  the  line  of  another  do  not 
constitute  an  occupation,  so  as  to  subject 
the  holders  of  tlie  privilege  to  ratability. 
Midland  R,  Co.  v.  Badgworth,  34  L.  J.  M. 
C.  25.  2  Ry.  &»  C.  T.  Cas.  19. 

374.  Deduction  for  inalutonnnce 
of  rnilway.  —  In  assessing  rates  against 
a  railway,  a  company  is  entitled  to  a  deduc- 
tion from  the  ratable  value  on  account  of 
depreciation  and  expenses  for  repairs,  and 
such  deduction  is  not  provided  for  by  a 
deduction  under  the  head  of  "working 
expenses."  Quetn  v.  London,  B,  Sr*  S.  C.  R. 
Co.,  15  g.  A  313.  6  Rai/w.  Cas.  440.  1$  /ur. 
372,  zo  L.J.  M.  C.  124. 

In  assessing  rates  against  a  railway,  the 
hot  that  tiie  company  has  not  incurred  ex- 
pense, nor  laid  by  money  to  meet  depreci- 
ation and  repairs,  does  not  disentitle  it  to 
the  proper  deduction  on  account  thereof. 
Quttn  V.  London,  B.  &*  S.  C.  R.  Co.,  15  Q. 

B.  313,  6  Railw.  Cas.  440,  \%Jur.  372,  20  L. 
J.  M.  C.  124. 

Deductions  ought  to  be  allowed  in  re- 
spect of  stations,  which  are  ratable  sepa- 
rately from  the  railway,  and  in  respect  of 
income  tax  paid  by  a  railway  company,  so 
far  as  it  relates  to  occupation.  No  deduc- 
tion should  be  allowed  in  respect  of  depre- 
ciation of  permanent  way  in  addition  to  an 
allowance  for  maintenance  of  way,  nor  a 
percentage  on  the  sum  expended  in  forming 
the  company,  obtaining  the  act,  and  raising 
the  capital.  Rtg.  v.  Great  Wtsttrn  R.  Co., 
\\L.  J.  M.  C.  80.  2  Ry.  ^  C.  T.  Cas.  17. 

A  deduction  ought  to  be  allowed  in  ad- 
dition to  annual  allowances  for  the  repairs 
of  the  permanent  way  and  of  the  movable 
stock  fur  their  ultimate  renewal  and  repro- 
duction. Expenses,  whereveraiising  locally, 
which  are  necessary  ^or  keeping  the  subject 
of  the  rate  at  the  value  which  is  the  measure 
of  the  assessment,  may  be  ari  ivcd  at  by  a 
mileage  division  of  the  proportional  part  of 
such  expenses  to  be  assigned  to  the  miles 
in  any  particular  parish.  R^.  v.  Gnat 
Western  R.  Co.,  ii  L. /.  M.  C.  84,  2  Ry.  A* 

C.  T.  Cas.  17. 

Each  parish  is  entitled  to  the  benefit  of 
the  value  which  the  land  within  it  has  ac- 
quired for  the  purposes  of  rating.  The 
proper  mode  of  making  the  deduction  in 
respect  of  the  maintenance  of  the  railway, 
from  the  gross  annual  value,  is  not  by  fol- 


lowing the  mileiige  principle,  but  simply  by 
taking  the  actual  outlay  in  the  parish;  and 
this  item  is  not  to  be  varied  by  expenses 
under  this  head  in  otiier  parishes  along  the 
same  railway.  London  4-  A'.  \V.  R.  Co.  v. 
King's  Norton,  3  Ry.  &-  C.  T.  Cas.  19. 

A  railway  passed  through  several  parishes, 
in  some  of  which  were  coal  mines,  which 
caused  a  larger  expenditure  in  maintain- 
ing the  permanent  way;  in  other  parishes 
through  which  it  passed  there  were  no  coal 
mines.  A  certain  parish  had  no  coal  mines 
in  it.  Held,  that  in  assessing  the  ratable 
value  of  the  railway  in  that  parish,  the 
proper  deduction  for  expense  of  permanent 
way  was  the  expense  in  the  parish,  regard- 
less of  the  average  cost  along  the  whole 
line  of  railway.  London  &■*  N.  IV.  R.  Co.  v. 
If  ardor  ne,  34/.  P.  644,  2  Ry.  &*  C.  T.  Cas.  20. 

375.  I>o<liictioii  for  repairs  of  roll- 
ing stock.— In  estimating  the  amount  of 
allowance  for  depreciation  of  rolling  stock 
in  assessing  rates  against  a  railway,  the 
stock  should  not  be  valued  at  the  begin- 
ning and  end  of  each  year  and  the  differ- 
ence deducted,  but  the  proper  method  is 
to  assume  that  the  stock  will  last  its  nat- 
ural life.  Great  Eastern  R.  Co.  v.  Haiigh- 
ley,  L.  R.  i  Q.  B.  666,  13  Jur.  N.  S.  596. 
35  L.  J.  At.  C.  229.  14  L.  T.  548.  14  IV. 
•A'.  779.— Follow  ED  IN  Reg.  v.  Llantrissant, 
L.  R.  4  Q.  B.  354.  38  L.  J.  M.  C.  93,  ao  L. 
T.  364,  17  W.  R.  671, 

A  company  made  and  repaired  its  own 
rolling  stock  and  claimed  to  deduct  trade 
profits  on  such  repairs  from  the  amount 
at  which  it  was  assessed  for  poor  rates. 
Held,  that  it  was  not  entitled  to  deduct  any 
sum  for  profits  in  respect  thereof.  Ij>ndoH 
&*  N.  IV.  R.  Co.  v.  Guardians  of  Poor,  3 
Ry.  6-  C.  T.  Cas.  240. 

370.  l><Mluctioii  for  ftontingr  capi- 
tal.— In  assessing  rates  against  a  railway, 
the  question  whether  the  company  is  en- 
titled to  a  deduction  for  interest  and  ten- 
ant's profits  upon  floating  capital,  for  the 
purpose  of  providing  surplus  stores,  and 
paying  wages,  depends  on  whether,  on  the 
whole  capital  employed,  a  greater  delay  oc- 
curs in  realizing  the  returns  than  is  ordi- 
narily incidental  to  the  employment  of 
capital.  Queen  v.  North  Staffordshire  R. 
Co.,  7  Jur.  N.  S.  363,  30  L.  J.  M.  C.  68.  3  El. 
&-  El.  392,  9  W^-  ^-  235.  3  t-  T.  554.  2  By. 
&>  C.  T.  Cas.  18. 

377.  Deduction  of  tenants'  prof- 
!('<.  -In  assessing  rates  against  a  railway, 


1016 


TAXATION,  378-380. 


K'i 


I::  ;     [ 


#•« 


1  Miiu ; 


I 


the  cuinpany  is  entitled  to  a  deductioa 
on  account  of  such  appenda{{es  as  turn- 
tables, weighing  machines,  furniture,  etc., 
as  are  movable,  and  not  permanently  at- 
tached to  the  premises.  Queen  v.  North 
Staffordsfiire  A\  Co..  3  AV.  &*  EL  392,  T  Jur. 
iV.  S  563:  Vi  /..  /  M.  C.  68,9  IV.  K.  235.  3 
L.  r.  554,  2  l\y.  '»'  C.  r.  Las.  18. 

In  assessin(^-  -n  company  in  respect  of  the 
portion  of  its  lire  pas.>^^ing  through  a  parisii, 
and  in  respect  01  sti'.Uon,  buildings,  and  sid- 
ings within  the  .lame,  an  allowance  must  be 
made  ior  interest  on  capital  and  tenants' 
profits,  calculated  with  reference  to  the  ac- 
tual value  of  the  rolling  stock  at  the  time 
the  rate  is  made.  Quieii  v.  North  Stafford- 
shire R.  Co..  3  El.  &«•  El.  392,  T  Jur.  N.  S. 
363.  9  "'•  H'  23s.  3  I'-  T.  554.  30  L.  J.  Af. 
C.  68,  2  Ay.  A-  C.  T.  Cas.  18. 

On  appeal  a^rainst  the  amount  at  which  a 
railway  was  assessed  to  the  poor  rate,  it  a|>- 
peared  that  the  line  belonged  to  one  com- 
pany, but  was  worked  by  another  company, 
who  found  all  the  rolling  stock  in  consid- 
eration of  receiving  a  percentage  of  the 
gross  receipts.  //*M.  that  such  percentage 
must  be  taken  to  represent  the  expense  of 
the  rolling  stock  to  the  hypovhetical  tenant, 
and  that  there  would  be  no  tenant's  capital 
or  profits  thereon  to  provide  for,  but  that 
for  personal  superintendence  and  the  re- 
sponsibility of  becoming  tenant  at  a  heavy 
rent  the  tenant  was  entitled  to  a  fair  remu- 
neration, which  was  fixed  at  five  per  cent, 
on  the  gror-'  receipts.  Manchester.  S.  d*  E. 
A'.  Co.  V.  Guardians  of  Poor.  2  Ky.  6-  C. 
T.  Cas.  53. 

In  order  to  obtain  the  cost  of  repairs  of 
carriages  and  w;igons,  Mie  company  divided 
the  actual  cost  by  the  Mumber  of  train  miles 
run  on  its  own  line ;  but  it  appearing  that 
it  }>lso  ran  upon  other  lines — held,  that  the 
additional  mileage  should  be  taken  into  ^^c- 
count,  so  far  as  it  was  ascertainable,  for  the 
purpose  of  arriving  at  a  correct  ratio  of  the 
co3t  of  these  repairs.  Manchester.  S.  &*  L. 
t.  Co.  V.  Guardians  of  Poor.  2  Ry.  &*  C. 
r.  Cas.  53. 

In  tho  ordinary  case,  however,  of  a  com- 
pany finding  the  rolling  stock  ior  its  own 
railway,  the  tenant  might  be  allowed  twenty 
per  cent,  upon  his  tenant's  capital  for  prof- 
its, depreciation  of  stock,  and  casualties ; 
ten  per  cent,  upon  his  stores,  and  five  per 
cent,  upon  his  flo.iting  capital ;  and  he  war 
also  entitled  to  a  deduction  for  rcncw:.i 
of  way  and  works,  as  well  as  for   mainte- 


nance of  the  same.  Manchesttr,  S.  &*  L. 
K.  Co.  V.  Guardians  of  Poor,  a  Ry.  &*  C. 
T.  Cas.  53. 

A  railway,  in  conducting  a  portion  of  its 
traffic,  used  the  wagon  stock  of  private 
o<vncrs  a.id  of  other  companies.  It  carried 
to  the  a'jcount  of  gross  receipts  tiic  amount 
earned  by  means  uf  su(  h  wagons,  but  the 
value  of  the  wagons  did  nut  appear  in  the 
tenant's  capital  accou.u  of  rolling  stock, 
and,  therefore,  no  profits  thereon  were  i  I- 
iowed  as  a  deduction  under  that  head.  The 
company  claimed,  however,  under  a  sepa- 
rate head,  a  deduction  of  ten  percent,  upon 
the  value  of  these  wagons,  on  the  assess- 
ment of  the  railway  to  the  poor  rate,  upon 
the  ground  that  it  represented  the  amount 
of  trade  done  in  them  by  the  company  upon 
which  the  profits  should  be  deducted.  ilcU, 
that  the  profits  should  he  deducted,  but  as 
it  appeared  that  the  number  of  train  miles 
run  by  owners'  wagons  was  much  less  than 
tlie  number  run  by  those  of  other  roni|)a- 
nies,  five  per  cent,  woidd  be  allowed  upon 
the  former,  and  ten  per  cent,  upon  the  lat- 
ter. Eon  ion  e-«  N.  H'.  R.  Co.  v.  Guard- 
ians of  Poor.  1  Ry.  &•  C.  T.  C  'as.  2^0. 

VilA.  llntiiiK  of  bruneli  IIik'n,  sen- 
orully.  — Kent  paid  f  >r  a  r.iilway  is  not 
necessarily  a  criterion  of  Us  raial)le  vahie. 
The  profits  derived  on  a  main  line  by  the 
occupation  of  a  i)i'aiich  line  m;iy  he  consid- 
ered in  rating  the  branch,  but  not  the  local 
profits.  South  Eastern  R.  Co.  v.  Dorking,  3 
El.  <S-  ///.  491,  2  C.  /..  R.  633.  18  fur.  672, 
23  E.  f.  M.  C.  84,  7  Rai/w.  Cas.  877. 

The  ratal)lc  value  of  land  in  a  parish 
may  be  increased  by  its  producing  a  return 
to  (he  occupiers  out  of  the  parish,  as  where 
a  branch  railway  ocruriied  by  a  company 
owning  a  main  line  into  \'hich  it  runs  pro- 
duces a  profit  by  virtue  of  tie  traffic  which 
it  causes  over  such  main  line.  Eon- 
don  &*  N.  \V.  R.  Co.  v.  Cannock.  9  L.  T. 
325,  2  Ry.  5-  ('.  7'.  Cas.  19. 

379. wlinrft  IciihciI  to  iiialn  llii«. 

— In  assessing  to  the  poor  rate  of  a  parish 
a  branch  line  of  railway,  which  branch  is 
leased  to  the  owners  of  a  main  line  into 
which  it  runs,  the  parish  authoriticr,  are  not 
entitled  to  take  into  consideration  the  value 
of  the  branch  line  as  a  feeder  to  other  lines 
in  different  parishes.  AVj-.  v.  Elantrissant, 
E.  R.  4  (2-  P  354.  38  I"  J  ^-  C.  93.  a 
Rv.  &*  C.  T.  Cas.  19. 

3KO.  Quarter  rutinir  under  Piililio 
llenlth  Act.— Stations  and  warehouses  do 


tcheiUr,  S,  ^  L. 
'oor,  2  Ay.  &*  C, 

I  a  portion  of  its 
stock  of  private 
iiiiios.  It  ciirricd 
:eipis  tiic  amount 

wagons,  but  tlie 
lot  appear  in  the 
of  rolling;  stoclc, 
thereon  were  i  !• 
:r  that  head.  Tiic 
cr,  luulei'  a  sc|>u- 
eii  percent,  upon 
s,  on  the  assess- 
e  |ionr  rate,  upon 
:ntc(l  tlic  amount 
he  company  upon 
:  deducted.  ///•/(/, 

deducted,  hut  as 
l)er  of  trait)  miles 
s  mucii  less  tlian 
:  of  other  cou) pa- 
be  allowed  upon 
:tit.  upon  the  iat- 
A*.  Co.  V.  Guard- 
\  r<r».  240. 
leli  liiM'H,  fgvn- 
a  r.iilway  is  not 
its  ratal>le  value. 

main  line  by  the 
e  m.iy  he  consid- 
t>ut  not  tlu<  local 
Co.  V.  Dofkhig,  3 

633.  18 /w.  672, 

Cas.  «77. 

and  in  a  parish 
oduring  a  return 
(  parish,  as  where 
d  l>y  a  company 
hich  it  runs  pro- 

ii;e  trafTir  wliich 
ain  line.  Loh' 
'rtttni'ck,  9  L.    T, 

<l  to  main  linn. 

rate  of  n  parish 
wliicli  branch  is 
a  main  line  into 
iithoriticr,  are  not 
leration  the  value 
ler  to  other  lines 
V.  IJantrt'ssarit, 
J.  M.  C.  93.  a 

under  Piihlie 

id  warehouses  do 


Taxation,  381. 


lor 


, 


not  form  a  part  of  the  railway  within  the 
proviso  in  II  &  12  Vict.  c.  63,  $  88,  and  land 
used  for  these  purposes  is  assessable  at  its 
full  net  annual  value.  The  word  "  railway  " 
in  this  connection  means  the  line  itself  and 
lands  used  for  SMpportinu  it.  SoutJi  Walts 
A*.  Co.  V.  Sivansta  Local  Board  of  Htalth,  4  El. 
&>  Bl.  189.  I  Jur.  N.  S.  326,  24  L.J.  M.  C.  30. 
A  railway  constructed  without  any  act  of 
parliament,  but  sold,  enlarged,  and  used  by 
act  of  parliament,  is  ratable  in  the  full  net 
annual  value,  and  not  as  a  railway  con« 
structed  under  the  powers  of  an  act  of  par- 
liament. North  Eastern  li.  Co.  v.  Leadgat* 
Local  Board,  18  IV.  it.  691.  L.  A'.  5  Q.  B.  157, 
igL./.Af.  C.6S.22L.  r  6a. 

A  railway  constructed  under  an  act  of  par* 
liament  for  the  transportation  of  traffic,  and 
as  accessory  to  a  dock,  but  free  to  the  public 
upon  payment  of  certain  tolls,  although 
not  used  or  intended  for  carrying  passen- 
gers, is  a  railway  within  the  meaning  of  3i 
&  23  Vict.  c.  98,  §  55,  providing  that  a  rail- 
way constructed  under  the  powers  of  any 
act  of  parliament  for  public  conveyance 
shall  be  assessed  in  the  proportion  of  one 
fourth  part  only  of  the  net  annual  value 
thereof.  Queen  v,  Ni'wport  Dock  Co.,')  Jur. 
N.  S.  73,  31  L.J.  M.  C.  266,  6  L.  T.  456. 

Under  57  Geo.  III.  c.  29,  a  company  re- 
quired to  build  and  keep  a  highway  bridge 
over  its  railway  with  a  brick  wall  at  each 
side  is  liable  to  be  a  sessed  for  the  paving 
of  the  surface  of  such  bridge,  the  side  walls 
thereof  coming  under  the  description  of 
"dead  walls,"  within  the  meaning  of  the 
Paving  Art.  Arntll  v.  London  &»  N.  W.  A'. 
Co..  12  C.  B.  697. 

Where  statutes  have  granted  to  a  company 
the  privilege  of  being  rated  at  only  one 
fourth  of  its  ratable  value,  and  there  has 
been  no  express  revocation  of  this  privilege, 
a  borough  rate  calculated  on  the  full  ratable 
value  of  the  railway  is  erroneous,  JValsat't 
Tp.  Overseers  v.  London  &*  N.  W.  K.  Co., 
L.  AV  4  /*//».  Cas.  467.  48  /..  /.  Af.  C.  166. 

By  the  Public  Health  Act.  iS75  (38  A  39 
Vict.  c.  55),  §  21 1,  subsec.  1  (b), "  the  ot  cupier 
of  any  land  •  ♦  *  used  only  as  a  canal  ♦  •  * 
or  as  a  railway,  constructed  under  the 
powers  of  any  act  of  parliament,  for  public 
ccinveyance,  shall  be  assessed  in  respect  of 
the  same  in  the  proportion  of  one  fourth 
part  only  of  the  net  annual  value  thereof." 
Appellant,  under  the  powers  given  it  by 
certain  local  acts  of  parliament,  constructed 
a  tramway  communicating  by  points  and 


switches  with  a  railway  in  its  possession 
which  was  worked  by  it  in  conjunction  with 
the  tramway,  and  which  had  been  con- 
structed under  an  act  of  parliament.  Held, 
that  the  land  occupied  by  the  tramway  was 
not  "  used  only  as  a  tramway  "  within  the 
meaning  of  the  act,  and  that  appellant  was 
not  entitled  to  be  rated  in  respect  of  it  in 
the  proportion  of  one  fourth  part  only  of  its 
net  annual  value.  Swansea  /.  &*  T.  Co.  v. 
Swansea  U.  S.  Authority.  [1892]  i  Q.  B.  357. 

381.  LiRlitiiiK  aiul  imving  rates.— 
Where  a  farm  is  exempted  by  statute  from 
the  payment  of  paving  rates,  a  part  of  such 
farm  afterwards  kept  by  a  company  is  still 
exempt.  Todd  v.  London  6-  S.  W.  R.  Co., 
7  M.  6-  G.  336.  8  Scott  N.  A".  56. 

Railway  carriages  and  trucks  are  not  lia- 
ble to  tolls  under  an  act  for  paving  and 
lighting  a  town  which  imposes  tolls  on  all 
stage  coaches  and  such  public  carriages  car- 
rying passengers  for  hire  coming  to  and 
going  from  or  out  of  the  town,  and  also  on 
all  w?ins,  wagons,  carts,  or  other  such  car- 
riages carrying  goods  for  hire,  and  coming 
to  or  going  from  or  out  of  the  town.  New- 
market R.  Co.  v.  Foster,  2  C.  L.  R.  1617. 

A  line  of  railway  is  liable  to  be  rated  un- 
der a  local  lighting  act  making  "  all  houses, 
buildings,  erections,  works,  tenements,  and 
hereditaments"  liabk  to  be  rated,  and  ex- 
cepting \en^.  Midland  R.  Co.  v.  Chester- 
Jield  Lif.  *.  ■  v.-  Com'rs.  1  Jur.  N.  S.  797.  Reg. 
V.  Afidlan,:  k.  Co.,  4  El.  6r*  Bl.  958- 

Under  the  Public  Health  Act,  1875  (38  4 
39  Vict.  c.  5S),  ?§  161.  229,  276,  a  company 
may  be  assessed  in  respect  of  the  full  rata- 
ble value  of  its  prop.-rty,  consisting  of  land 
used  and  occupied  as  a  railway,  to  defray 
the  expense  of  lighting  the  streets  of  an 
urban  sanitary  district.  Lancashire  &*  V. 
R.  Co.  V.  Assessment  Com.  of  Bolton  Union, 
L.  R.  15  APP.  Cas.  323:  affirming  L.  R.  23 
G.  B,  D.  555. 

By  3  &  4  Will.  IV.  c.  90.  S  33.  the  owners 
and  occupiers  of  houses,  buildings,  and 
property  (other  than  land)  ratable  to  the 
relief  of  the  poor  in  any  parish  shall  be 
rated  at  and  pay  a  rate  in  the  pound  three 
times  greater  than  that  at  which  the  owners 
and  occupiers  of  land  shall  be  rated  for  the 
purposes  of  this  act  (watching  and  light- 
ng).  Held,  that  a  line  01  railway  was 
"  land  "  within  the  meaning  of  the  section, 
and  was  therefore  only  ratable  at  the  lower 
rate.  Queen  v.  Midlimd  R.  Co.,  L.  R.  10  Q. 
B.  389,  2  i?/.  *•  C.  T.  Cat.  xvl. 


1018 


TAXATION,  382-385. 


!)'»•-'" 


382.  Appeals  ftom  asMssnients.— 

A  railway  company  has  the  right  to  appeal 
from  a  borough  rate  aMetaed  against  it, 
without  seeking  relief  from  the  assessment 
committee  in  a  case  where  it  claims  exemp- 
tion from  a  certain  part  of  the  rate,  and  the 
committee  cannot  give  relief  in  such  cases. 
y.<y.  V.  UndoH  4*  A^.  W.  X.  Co..  46  L.  /. 
91.  C.  102. 

A  company  had  occupied  a  portion  of  a 
station,  and  in  1877  had  agreed  to  a  certain 
assessment.  Prior  to  1877  it  transferred  a 
considerable  amount  of  its  traffic  to  iinother 
station,  giving  up  a  part  of  its  occupation  at 
the  former  station  to  another  company. 
From  1877  to  1887  it  paid  poor  rates  upon 
the  agreed  assessments ;  but  it  refused  to  pay 
a  rate  made  June  34,  1887,  on  the  ground 
that,  having  given  up  a  portion  of  the  prem- 
ises occupied  by  it  in  1877,  the  rate  was  bad, 
and  a  nullity.  The  company  did  not  appeal 
against  the  rate  or  the  assessment.  An  ap- 
plication to  the  stipendiary  magistrate  by 
the  overseers  for  a  distress  warrant  was  re- 
fused. Upon  an  order  nisi  for  a  mandamus 
to  the  magistrate  and  the  company  for  a 
distress  wi.rrant  to  issue  being  argued— A//</, 
that  the  order  for  mandamus  must  be  made 
absolute,  since  the  company  continued  to 
occupy  a  portion  of  the  station,  and  the 
property  rated  fulfilled  the  description  ap- 
pearing upon  the  rate  book.  The  rate  was 
good  on  the  face  of  it,  and  it  was  not  for  the 
magistrate  to  inquire  whether  part  of  it 
was  or  was  not  in  respect  of  the  premises 
then  occupied  by  the  company.  The  objec- 
tion of  the  company  being  a  matter  of 
appeal,  the  rate  unappealed  against  ought 
to  be  enforced.  Rtg.  v.  Htadlam  &*  L.  ^ 
N.  ir.  R.  Co..  $7  L.  J.  M.  C.  89,  6  Ky.  &» 
C.  T.  Cas.  \xx. 

383.  Itattngoftraiiiwayi.— A  tram- 
way company  formed  under  the  Tramways 
Act,  1870,  which  lays  down  its  tramway  in 
a  highway  the  soil  of  which  is  vested  in  the 
district  board,  is  ratable  to  ihe  poor  in  re- 
spect of  its  occupation  of  the  road.  Pimlico, 
P.  &*  G.  S.  Tramway  Co.  v.  GrHHWieh 
Union,  L.  R.  9  Q.  B.  9.  43  L.  J.  M.  C.  J9. 

A  company  owning  tramways  under  pri- 
vate acts  of  parliament  with  which  was  incor- 
porated the  Tramways  Act  of  1870  is  an  occu- 
pier of  the  soil  of  the  street  so  as  to  be  ratable 
to  the  poor.  Pimlico,  P.  &*  G.  J..  Tram- 
way  Co.  v.  Grttnv/ich  Union,  22  ff .  R.  87. 

Where  a  tramway  extends  through  two 
or  more  parishes,  its  ratable  value  in  each 


parish  should  be  calculated  by  dividing  the 
receipts  from  each  distinct  service  route  in 
proportion  to  the  lineal  mileage  of  such 
route  in  each  parish.  London  Tramways 
Co.  V.  Lambeth  Asstssmtnt  Committit,  yx 
L.  T.  319. 

A  tramway  beginning  and  ending  in  the 
same  parish  should  be  ratable  upon  the  net 
receipts  of  the  route.  London  Tramways 
Co.  V.  Lambtth  Asstssmtnt  Committtt,  31  L. 
T.  319. 

ZU.  TAZATIOH  OF  OAHABIAN  BAILROAM. 

384.  llVhai  taxable,  and  to  whom. 

—By  the  true  construction  of  Quebec  Town 
Corporation  General  Clauses  Act,  1876  (40 
Vict.  c.  60).  §S  323.  326,  327,  no  part  of  a 
railway  is  made  taxable  property,  except 
the  land  as  land  occupied  by  the  road,  the 
biidges  or  other  superstructures  thereon 
being  excluded.  St.  John's  v.  Ctntral  Vt. 
R.  Co.,  L.  R.  14  App.  Cas.  $90.— Distin- 
guishing Great  Western  R.  Co.  v.  Rouse, 
15  U. e.g.  B.  168. 

Under  16  Vict.  c.  182,  §  21.  only  the  land 
occupied  by  a  railway  is  subject  to  assess- 
ment, not  the  superstructure.  Grtat  Wtst 
trn  R.  Co.  v.  Roust,  ij  U.  C.  Q.  B.  168.  - 
Approved  in  Central  Vt.  R.  Co  v.  St. 
John's,  i4Can.Sup.  Ct.  288.  Di.stiN(;uu^hki) 
IN  St.  John's  V.  Central  Vt.  R.  Co.,  .L.  \{.  \\ 
App.  Cas.  590. 

Under  16  Vict.  c.  182,  railway  compa-ties 
are  to  be  assessed  for  their  real  estate  as  if 
they  were  residents.  London  Tp.  v.  Grtat 
Wtsttrn  R.  Co.,  16  U.  C.  Q.  li.  500.— Dis- 
approved IN  Great  Western  R.  Co.  v.  Rog- 
eis,  29  U.  C.  Q.  B.  245. 

Where  the  assessors  illegally  assess  the 
superstructure  of  a  railway  as  well  as  the  land 
occupied  by  it,  the  company  may  defend  an 
action  as  to  the  superstructure,  although  no 
appeal  has  been  made  to  the  court  of  re- 
vision, and  althnngh  the  whole  was  called 
land  in  the  assessment.  London  Tp.  v. 
Grtat  IVtstttn  R.  Co..  17  U.  C.  Q.  B.  262.- 
Approved  in  Central  Vt.  R.  Co  v.  St. 
John's,  14  Can.  Sup.  Ct.  388. 

Land  covered  with  the  waters  of  a  harbor 
is  not  taxable.  Buffalo  &*  L.  H.  R.  Co.  v. 
Codtrirh,  21  U.  C.  Q.  B  97. 

385.  Kx«mption8.~The  Windsor  and 
Annapolis  railway  is  a  provincial  railway 
within  the  meaning  of  Rev  St.  (3d  Scries) 
c.  4S,  §  16.  relating  to  county  assessments, 
and  is  exempt  from  astessme.it  under  the 


TAXATION.  380. 


1019 


dividing  the 
irice  route  in 
age  of  sucli 
n  Tramways 
'ommiUu,  31 

nding  in  the 
upon  the  net 
«  Tramways 
tmitUe,  31  L. 


BAILKOAM. 

1  to  wlioni. 

Quebec  Town 
Act,  1876  (40 
no  part  of  a 
perty,  except 
the  road,  the 
ures  thereon 
.  Ctntral  Vt. 
JO.—  DlSTIN- 

Cu.  V.  Rouse, 

only  the  land 

Kt  to  auoss- 
Grtat  WtsI 
Q.  B.  168.  - 

\.  Co    V.   St. 

STINilUICHKI) 
Co.,  .L  li.  14 

ay  coiiipa'»ie« 
al  estate  as  if 
Tp.  V.  Great 
n.  500.— DiS- 
\,  Co.  V.  Rog- 

|]y  asMts  the 

'ell  at  the  land 
nay  defend  an 
!,  although  nu 
!  court  of  re- 
>le  was  called 
on  Jon  Tp.  v. 
Q.  B.  362.- 
,   Co.  V.  St. 

■re  of  a  harbor 
//.  R.  Co.  V. 

Windsor  and 

inrial  railway 

St.  (3d  Series) 

assessments, 

.It  under  the 


act.  The  true  test  of  exemption  depends 
upon  the  fact  whether  the  road  is  or  it  not 
a  portion  of  the  provincial  railway.  An- 
napolis County  \.  Windsor  &*  A.  R.  Co.,  8 
Nov.  Sc.  397. 

The  railway  of  the  International  Coal 
company  is  not  exempt  from  taxation  under 
the  provitiont  exempting  provincial   rail- 

lys,  rolling  stock,  and  railway  ttations. 
InternatioHal  Coal  Co,  v.  Capt  Breton 
County,  24  Nov.  Sc,  496. 

The  portion  of  the  railway  bridge  built 
over  the  Richelieu  river,  and  the  railway 
track  be'inging  to  the  Central  Vermont 
niilwa>  coitipany  within  the  limits  of  the 
town  of  St.  John's,  are  exempt  from  taxa* 
tion  under  40  Vict.  c.  29  P.  Q.  ?;;  326,  327, 
although  no  return  had  been  made  to  the 
cot.,  ci!  by  the  company  of  the  actual  value 
of  >t<  rt:;al  estate  in  the  municipality;  and 
a  wiki  of  injunction  is  a  proper  remedy  to 
enjoin  the  corporation  to  desist  from  all 
proceedings  to  enforce  the  collection  of  the 
same.  Central  Vt.  R.  Co.  v.  St.  John's,  14 
Can.  Sup.  a,  288.— Approving  Great  West- 
rn  R.  Co.  V.  Rouse,  15  U.  C.  Q.  B.  168: 
London  v.  Great  Western  R,  Co.,  17  U.  C. 
(.).  n.  262. 

Hy  charter  the  landt  of  a  compf  ny  in  the 
ii'irthwest  territoriet,  until  they  are  either 
told  or  occupied,  are  exempt  from  dominion, 
provmcial,  or  municipal  taxation  for  twenty 
years  after  the  grant  thereof  from  the  crown. 
Hfld  .■  (I)  that  lands  which  the  company  has 
atrreed  to  sell  and  as  to  which  the  condi- 
tions of  sale  have  not  been  fulfilled  are 
not  landt "  sold  "  under  the  charter ;  (2)  that 
the  exemption  attached  to  lands  allotted  to 
the  company  before  the  patent  was  granted 
by  the  crown.  Cornwallis  v.  Canadian  Pac, 
R.  Co.,  19  Can.  Sup.  Ct.  702. 

Lands  which  were  in  the  nonhwett  terri- 
toriet when  allotted  to  the  company  did 
not  lote  their  exemption  from  taxation  on 
becoming  a  part  of  the  province  of  Mani- 
toba. Cornwallis  v.  Canadian  Pac.  R.  Co., 
19  Can.  Sup.  Ct.  702. 

Lands  owned  by  defendant  were  originally 

•art  of  the  township  of  Sandwich  West,  and 
by  a  by-law  of  that  township,  confirmed  by 
special  legislation,  were  exempted  from  taxa> 
tion  for  ten  years  from  January  i,  1883.  In 
1888  the  limits  of  the  then  town  of  Wind- 
sor were,  under  the  provisioni  of  Ont.  Rev. 
St.  c.  184,  §  32,  extended  so  as  to  embrace 
the  landt  in  question.  Held,  that  assuming 
that  the  water  rate  was  a  species  of  taxation. 


the  effect  of  tecilon  54  was  to  put  an  end 
to  the  exemption.  Windsor  Water  Com'rs 
V.  Caiuida  Southern  R.  Co.,  20  Ont.  App, 
388.— Distinguishing  Cornwallis  v.  Cana- 
dian Pac.  R.  Co.,  19  Can.  Sup.  Ct.  702. 

By  statute  the  lands  of  a  company  were 
to  be  free  from  taxation  for  a  certain  period 
unless  "  sold  or  occupied."  1\  z  company 
made  an  agreement  for  sale  of  certain  of 
the  lands  upon  certain  conditions.  The 
conditions  not  having  been  performed,  the 
company  canceled  the  ai^reement,  as  by  its 
terms  it  was  entitled  to  do.  There  never 
was  any  actual  occupation  of  the  land. 
Held,  that  the  land  had  never  been  sold  or 
occupied,  and  that  it  was,  therefore,  not 
subject  to  municipal  taxation.  Canadian 
Pac,  R.  Co.  V.  Burnett,  5  Afan.  395. 

The  exemption  from  taxation  of  the  prop- 
erty of  railwtiycompaiiies  in  New  Brunswick, 
contained  in  33  Vict.  c.  46,  only  applies  to 
property  and  stock  necessary  to  the  proper 
working  of  the  railway,  and  not  to  such 
property  as  a  mill  leased  by  the  company. 
Ex  parte  European  &*  N.  A.  R.  Co.,  13  New 
Brun.  479. 

The  Fredericton  and  St.  Mary's  railway 
bridge  company  incorpor;r.cd  by  Dominion 
Act  48  &  49  Vict.  c.  26  i»  a  railway  com- 
pany within  the  meaning  vi  the  act  of  as- 
sembly 33  Vict.  c.  46,  and  is  exempt  from 
taxation  under  the  provi'iions  of  the  act. 
Ex  patte  Fredericton  &*  St.  At.  R.  Bri<^e 
Co.,  29  A'tw  lirun.  127. 

A86.  \HHe8Hiiicnt.— Undsr  the  Act  of 
1868,  c.  24,  the  Windsor  and  Annapolis 
railway  company  is  liable  to  be  assessed 
for  the  maintencnce  of  the  dyke  protecting 
the  marsh  over  which  the  track  of  its  road 
passes  owned  by  it,  Rev.  St.  c.  3i.  §  16, 
applying  only  to  county  assessment ;  and 
recourse  need  not  be  had  to  the  land  itself 
under  c.  40,  §  15,  as  that  section  refers  only 
to  the  original  construction  of  the  dyke 
where  the  owner  has  not  consented. — 
Brown  v.  Windsor  6-  A,  R.  Co.,  14  Nov. 
Sc.  430. 

The  court  of  revision  confirmed  the  as- 
sessment of  a  lot  of  land  occupied  by  a 
company  at  $1200  annual  value,  and  assessed 
the  station  built  upon  it  at  fisoo,  and  the 
county  court  judge  being  appealed  to  con- 
firmed the  value  of  the  station,  "subject  to 
the  question  "  whether  it  could  be  assessed 
in  addition  to  the  land,  "and  left  for  the 
determination  of  a  higher  court  "  whether 
after  the  valuation   of  the  hnd  had  been 


1030 


TAXATION.  387-300. 


»».<*- 


mii 


fixed  in  accordance  with  the  Assessment 
Act,  {  30,  the  building  could  be  added. 
//e/J.  that  this  was  in  effect  a  confirmation 
of  the  assessment,  the  reservation  being  in- 
operative, and  liiat  the  court  had  no  power 
to  review  the  decision.  Toronto  v.  Great 
Western  R.  Co..  2$  U.  C.  Q.  B.  570. 

Theomission  of  the  assessor  todistinguish, 
in  his  notice  to  a  railway  company,  between 
the  value  of  the  land  occupied  by  the  road 
and  its  other  real  property,  as  required  by 
tlie  act,  does  not  avoid  the  assessment. 
Great  Western  A'.  Co.  v.  Kcgers,  29  U.  C. 
Q.  B.  245.— Disapproving  London  Tp.  v. 
Great  Western  R.  Co..  16  U.  C.  Q.  B.  500. 
Following  Scragg  v.  London,  26  U.  C.  y. 
B.  263 :  Allen  v.  Sharp,  2  Ex.  352 :  Pedley 
V.  Davis,  10  C.  B.  N.  S.  492. 

Such  an  omission  may  be  corrected  on 
appeal  by  the  court  of  revision  and  county 
court  judge.  Great  Western  R.  Co.  v.  Rog- 
ers, 29  U.  C.  Q.  B.  245. 

387.  Colluctioii.  —  In  avowing  for  a 
distress  for  taxes  due  upon  land  belonging 
to  a  company,  it  is  unnecessary  to  allege 
that  in  the  assessment  the  value  of  the  land 
occupied  by  the  railway  was  distinguished 
from  that  of  its  other  real  property,  or  that 
it  had  no  other  real  property,  or  that  the 
assessment  was  communicated  to  the  com- 
;9any.  Such  objections  should  form  the 
subject  of  a  plea.  Great  Western  R,  Co.  v. 
Rogers,  27  U.  C.  Q.  B.  214. 

388.  Sale  of  lands  for  non-pay- 
ment. —  Under  the  Assessment  Act  of 
1869  (32  Vict.  c.  36),  the  lands  of  railways 
might  be  sold  for  the  non-payment  of  taxes. 
Smt'tA  V.  Midland  R.  Co.,  4  Ont.  494.— Re- 
viewing Wing  V.  Tottenham  A  H.  J.  R. 
Co.,  L.  R.  3Ch.  740. 

389.  Iteinedies  for  Illegal  taxation. 
—  A  company,  by  its  contract  with  the 
crown,  was  entitled  to  a  grant  of  certain 
lands  upon  completion  of  certain  portions 
of  the  railroad,  and  these  lands  were  ex- 
empted from  taxation  for  twenty  years, 
unless  sooner  sold  or  occupied.  This  con> 
tract  was  ratified  by  statute.  Before  the 
patent  for  the  lands  had  been  issued,  a 
municipality,  within  which  the  lands  in 
question  lay,  sold  them  for  taxes.  The 
company  had  performed  its  part  of  the  con- 
tract, entitling  it  to  a  grant  of  said  lands, 
before  the  sale  was  made.  Shortly  before 
the  time  for  redemption  expired,  the  com- 
pany paid  the  taxes  undei'  proteM  to  avoid 
tax  deeds  being   issued,  and  brought  an 


action  to  recover  the  money.  Held:  (1)  that 
plaintiff  was  entitled  to  recover;  (2)  that 
plaintiff  had  an  interest  in  the  lands  prior 
to  the  issuing  of  the  patent ;  (3)  that  under 
the  terms  of  the  contract,  the  lands  were  ex- 
empt from  taxation  from  the  date  of  the  con- 
tract until  twenty  years  after  tlie  issue  of  the 
patent,  unless  sooner  sold  or  occupied  ;  (4) 
that  the  money  was  not  paid  voluntarily 
and  might  be  recovered  baclc.  CanaMan 
Pac.  R.  Co.  V.  Cornwallis,  7  Mttn.  1. — l*'(ii, 
lowing  Canadian  i'ac.  K.  Co.  v.  Burnett,  5 
Man.  395. 

Upon  replevin  to  recover  certain  goods 
and  chattels  seized  for  taxes,  plainiilf,  a 
railroad,  contended  :  (i)  that  its  land  was  not 
assessed  at  tlie  average  value  of  land  in  the 
vicinity ;  (2)  that  no  proper  notice  of  the  as- 
sesst  lent  was  given  ;  (3)  that  tiiu  roll  was  not 
compleltrd  within  the  proper  time.  Defend- 
ant justified  under  a  letter  written  by  plain- 
tiff's solicitor  in  the  following  words :  "  In 
reply  to  yours  of  the  isth  inst.,  addressed 
to  the  managing  director  of  tiiis  company,  1 
am  directed  to  inform  you  that  the  only 
real  property  owned  by  the  company,  in  the 
township  of  Maidstone,  consists  of  the  road- 
way of  106  acres,  and  17  acres  of  extra  or 
waste  land.  I  have  not  the  rate  at  which  this 
land  has  hitherto  been  assessed,  but  I  |ire- 
sume  that  the  average  value  of  land  in  the 
locality  cannot  exceed  ten  pounds  per  acre." 
Defendant  also  proved  a  notice  of  assess- 
ment. Held,  that  this  letter  did  not  fix  ten 
pounds  as  the  average  value  of  the  land,  but 
only  asserted  that  the  value  rouUI  not  exreed 
that  sum,  and  that  the  notice,  under  which 
plaintiff's  land  had  been  assessed  at  ten 
pounds  per  acre,  while  the  average  value 
of  the  land  through  which  the  railway  went 
was  one  pound  ten  shillings,  l>eing  served 
after  the  time  for  the  revision  of  taxes  had 
expired,  was  too  late.  Grettt  Western  A*.  Co. 
V.  Ferman,  8  U.  C.  C.  P.  221. 

By  agreement  between  plaintiffs  and  a 
company,  plaintiffs  were  working  the  latter's 
raihv,iy  vnth  their  own  engines  and  cars, 
and  defendant,  as  collector,  seized  the  plain- 
tiffs' car  on  such  railway  for  taxes  due  by 
the  company  in  respect  of  other  land  be- 
longing to  the  company.  Held,  that  such 
seizure  was  unauthorired,  for  the  car  when 
taken  was  in  plaintiffs'  possession  and  was 
their  own  property.  Great  Western  A".  C<>. 
V.  Rogers,  29  U.  C.  Q.  B.  245. 

31>0.  School  tax.  —  There  is  no  pnwrr 
^iven    by  the    School  Acts  to   a  board  of 


f.  ////</;  (I)  that 
•eCDver;  (2)  tliat 
11  the  lands  prior 
L ;  (3)  that  under 
he  lands  were  v.x- 
ledateof  tliecon- 
>r  the  issue  of  the 
or  occupied  ;  (4) 
paid  voluntarily 
t)a(:k.  C'linaJ/ttn 
7  Alan.  I. — Koi. 
Co.  V.  Burnett,  5 

er  certain  goods 
iixes,  plaintill,  a 
It  its  hind  was  not 
uc  of  land  in  the 

notice  of  the  as- 
at  the  roll  was  not 
cr  time.  Defend- 
wriiten  by  plain- 
ing words:  "  In 
I  in  St.,  addressed 
A  this  company,  1 
im  that  the  only 
!  Company,  in  the 
isists  of  the  riad- 
acres  of  extra  or 
rate  at  which  this 
icssed,  but  I  pre- 
ue  of  land  in  the 
pounds  per  acre." 
notice  of  assess- 
er  (lid  not  fix  ten 
le  of  the  land,  hut 
srouUI  notexccpd 
tire,  unrler  which 

assessed  at  ten 
le  average  value 
1  the  railway  went 
ngs.  being  served 
sion  ol  taxes  had 
lit  IVtstern  A'.  Co. 
!2I. 

plaintifTs  and  a 
orkingthe  latier's 
engines  and  cars, 
r,  seized  the  plain- 
for  taxes  due  by 
->f  other  land  l)c- 
////</,  that  such 
,  for  the  car  when 
issession  and  was 
at  IVesttrn  K.  Co. 

J4S. 

rherc  is  no  p(nv/<r 

:ts  to   a  board  of 


TAXATION,  391-aU3. 


lO.'l 


school  trustees  in  a  city  or  town  to  assess, 
levy,  or  collect  a  tax  or  school  rate  upon  a 
railroad  or  other  property,  except  that  given 
to  levy  a  small  rale  upon  the  parents  or 
guardians  of  the  children  altenduig  school. 
Winnipeg  School  Truttets  v.  Canadian  Pac. 
Ji.  Co.,  2  Alan.  163. 

3Uli  Water  rate.  —  Defendant  com- 
pany was  the  owner  of  vacant  land  in  a  city, 
abuttii.'g  on  sirceis  in  which  mains  and 
hydrants  uf  plaintiffs  had  been  placed. 
Defendant  had  a  waterworks  system  of  its 
own  and  did  not  use  that  of  plaintiffs, 
though  it  could  have  done  so  had  it  wished. 
The  commissioners  imposed  a  water  rate 
"for  water  supplied,  or  ready  to  be  sup- 
plied," upon  all  lands  in  the  city,  based 
upon  their  assessed  value,  irrespective  of  the 
user  or  nonuser  of  water.  Held,  that  this 
rate  was.  under  37  Vict.  c.  tg,  H  II,  I3, 
validly  imposed.  U'indse,'^  li'ater  Com'rs 
V.  Canada  Southern  R.  Co.,  20  Ont.  App,  .)8<i. 

7.ai.   LICE1I8B  TAXB8.* 

302.  Alabuiiia.  —  A  city  ordinance  re- 
quiring every  express  company  or  railroad 
r.ompany  doing  business  within  the  city, 
and  whose  business  extends  beyond  the 
state,  to  pay  an  annual  license  tax  of  $500 
is  not  in  conflict  with  the  Constitution  of 
the  United  States  or  the  Constitution  of 
Alabama.  Such  a  license  tax  is  not  an  im- 
port or  «'xport  duly,  nor  is  it  a  regulation  of 
commerce  among  the  stales,  or  between  a 
state  and  a  foreign  country.  Osborne  v. 
Mayor,  etc.,  of  Mobile,  44  Ala.  493 ;  affirmed 
in  16  Wall.  \  U.S.)  479- 

The  power  of  a  state  to  levy  taxes  and  to 
impose  licenses  extends  to  every  species  of 
property,  ami  to  all  occupations  within  the 
state,  except  where  the  power  is  limited  by 
the  C(msiitution  of  the  United  Slates, or  by 
the  Constitution  of  the  stale.  Osborne  v. 
Miyor,  etc. .  of  .Mobile,  44  Ala.  493 ;  affirmed 
in  16  Wall.  (U.  S.)  479. 

The  power  to  levy  taxes  and  impose 
license  may  be  transferred  to  a  municipal 
corporalicm,  to  be  exercised  within  its  limits. 
Osborne  v.  Mayor,  etc.,  of  Mobile,  44  Ala.  493  ; 
affirmed  in  16  Wall.  (U.  5.)  479- 

•  License  tax  on  (oreiRO  corporations,  see 
note,  45  Am.  &  Enc.  R.  Cas.  8;  13  Id.  306. 

\Vhe:i  a  municipal  license  tax  on  each  com 
pany  entering  corporate  limits  is  not  a  tax  on 
Interstate  cumnicrce,  sec  37  Am.  &  Encs.  R.  Cas. 
3-R,  ithtr.    See  also  Interstate  Commerce, 
209-214. 


303.  California.— Under  the  Revenue 
Act  of  1861,  §S  74.  75  (St.  442.  443).  Wells. 
Fargo  &  Co.,  as  common  carriers  of  gold 
dust,  are  compelled  to  pay  the  license  tax 
fixed  by  those  sections  on  each  of  their 
branch  establishments  in  the  diflerenl  coun- 
ties of  the  stale,  as  well  as  upon  the  pr>i.ci- 
pal  house  in  San  Francisco.  People  v. 
Wells,  19  Cal.  293. 

When  the  power  to  "  license  and  regulate  " 
occupations  is  conferred  im  a  municipal- 
ity, the  whole  charter  and  general  legisla- 
tion of  the  state  must  be  considered  in 
determining  whether  the  power  includes 
the  power  to  tax  occupations  for  revenue 
purposes.  San  fos^  v.  San  Josi  i5*  S.  C.  A'. 
Co.,  53  Cal.  47 s. 

A  franchise  conferred  by  the  le(;islature, 
granting  the  right  to  construct  a  railroad 
through  streets  of  a  city  and  to  operate 
cars  thereon,  is  not  such  a  contract  as  to 
exempt  the  occupation  from  police  regula- 
tions, or  from  a  municipal  license  tax.  San 
Josi\.  San  Josi  &*  S.  C.  A'.  Co..  53  Cal.  47$. 

The  fact  that  the  railroad  extends  and 
cars  ate  run  beyond  the  corporate  limits 
does  not  exempt  the  occupation  fiom  taxa- 
tion by  the  municipality.  San  Josi  v.  San 
Josi&'S.  C.  R.  Co.   53  Cat.  475. 

If  a  corporation  cariics  on  a  business  for 
which  a  license  is  required  without  taking 
out  a  license,  it  may  be  liable  to  a  criminal 
prosecution,  or  held  as  agreeing  to  pay  a 
penalty  instead  of  ihi!  amount  of  the  license, 
but  it  owes  nothing  for  a  license  until  one  is 
taken  out;  and  an  action  to  recover  the 
amount  alleged  to  be  tine  for  the  license  can- 
not be  maintaine<l.  Santa  Crus  v.  S.inta 
Cru3  R.  Co.,  56  Cal.  143.  — DlsiiNUt'isHiNii 
Sacramento  7'.  California  Stage  Co.,  12  Cal. 
134 ;  San  Jos6  v.  San  Jose  &  S.  C.  U.  Co.,  53 
Cal.  475.— DlsTiNGUi.sHEl)  IN  Los  Angeles 
V.  Southern  Pac.  R.  Co.,  61  Cal.  59. 

Under  the  County  Government  Act,  §  25, 
subdivision  27,  county  supei visors  lia\e 
power  to  require  a  license  tax  to  be  paid  by 
any  person  operatinj^  a  steam  railroad 
within  the  county.  Santa  Clara  County  v. 
Sout/iern  Pac.  R.  Co.,  66  Cal.  642.--Nor 
FOLLOWED  IN  San  Benito  County  v.  South- 
ern Pac.  R.  Co.,  37  Am.  &  Eng.  R.  Cas. 
374.  77  Cal.  518,  19  Pac  Rep.  827. 

Where  a  company  is  chartered  by  the 
federal  government,  an  ordinance  requiring 
it  to  take  out  a  license  for  the  privilege  of 
carrying  persons  and  property  in  a  county 
is  void,  as  a  tax  on  a  federal  franchise.    San 


loss 


TAXATION,  394-397. 


Btnito  County  v.  Soulhtrn  Pac,  R.  Co.,  37 
Am.  ^  Eng.  R.  Cat.  374,  77  Cal.  518,  19 
Pac.  Rtp.  827.  — DlsilNUUlSHiNG  Thom- 
son V.  Pacific  R.  Co.,  9  Wall.  (U.  S.)  579; 
Union  Pac.  K.  Co.  v.  Pcniston,  18  Wall.  %, 
—Following  CalifuriMa  v.  Central  Pac.  R. 
Co..  127  U.  S.  I.— Not  following  Ccn1r.1l 
i'ac.  R.  Co.  V,  Stale  Board  o(  Equalization, 
60  Cal.  35 ;  Los  Angulcs  v.  Soutlturn  Pac. 
R.  Co.,  61  Cal.  S9 ;  Santu  Clara  County  v. 
Southern  Pac.  R.  Co.,  66  Cal.  642. 

394.  GcorKin.  —  The  tax,  called  a 
license,  impuscd  on  "  every  railroad  com- 
pany that  pulls  over  its  road  sleeping  cars, 
of  any  person  or  corporation,  upon  which 
tuxes  are  not  paid,"  etc.,  "for  pulling  such 
cars  in  each  of  the  years  1889  and  1890,"  by 
an  act  approved  November  12,  1889,  is  not 
collectible  by  execution  in  whole  or  in  part 
before  the  first  of  October  next  after  the 
passage  of  the  act,  the  language  as  to 
default  and  execution  being  that  "  if  any 
railroad  company  shall  fail  to  pay  the 
license  herein  provided  for,  on  cr  before  the 
first  day  of  October  in  each  year,  the  comp- 
troller-general shall  issue  execution  against 
such  defaulting  company."  It  follows  that, 
whether  the  tax  be  valid  or  invalid,  there  is 
no  good  reason  for  reversing  the  judgment 
granting  an  injunction  to  restrain  the  col- 
lection of  such  tax  for  the  year  1889  by 
virtue  of  an  execution  issued  by  the  comp- 
troller-general on  December  16,  1889,  such 
execution  having  been  issued  prematurely. 
IVright  V.  Ctntral  A'.  &>  ti.  Co.,  8$  Ua.  649, 
II  S.  E.  Hep.  1031. 

30ff.  Kuiitucky.— The  Act  of  March  2. 
i86o,rcquiringagentsof  foreign  express  com- 
panies to  takeout  licenses  before  transacting 
business  within  the  state,  is  not  repealed, 
either  expressly  or  by  implication,  by  the  Act 
of  Feb.  20,  1864,  which  requires  all  express 
companies  to  pay  as  a  tax  six  percent.  u|ioii 
the  net  profits  of  'he  business  done  each  year 
within  the  state.  Woodward  v.  Com.,  {Ky.) 
35  Am.  **  Etig.  K.  Cat.  498, 7  S.  W.  Rtp.  613. 

The  Act  of  March  2,  i860,  requiring  all 
agents  of  foreign  express  companies  to  pro- 
cure a  license  before  doing  business  as  such 
agents,  is  not  affected  by  the  Act  of  March 
2,  1870,  requiring  foreign  express  companies 
doing  business  within  the  state  to  pay  cer- 
tain fees  each  year  upon  renewing  their 
license.  Woodward  v.  Com.,  (Ky.)  35  Am. 
*-  Eng.  R.  Cas.  498.  7  •!••  «'•  R'P.  613. 

A  state  law  imposing  a  license  tax  of  $500 
or  liooo  per  annum,  according  to  the  length 


of  the  line  in  the  state,  on  foreign  expreM 
companies  doing  business  in  the  state,  is 
void,  as  an  attempt  to  regulate  interstate 
commerce.  Such  license  is  a  tax  upon  the 
business  of  such  companies,  and  not  upon 
their  property.  Com.  v.  Smilk,  (Ky.)  17 
S.  W.Rtp.  187.— Distinguishing  Crutcher 
V.  Kentucky,  141  U.  S.  47,  11  Sup.  Ct.  Rep. 
851. —  Following  Lyng  v.  Michigan,  135 
U.  S.  161,  10  Sup.  Ct.  Rep.  725.— Quoting 
Gloucester  Ferry  Co.  v.  Pennsylvania,  114 
U.  S.  196,  5  Sup.  Ct.  Rep.  826;  Leloup  v. 
Mobile,  127  U.  S.640,  8  Sup.  Ct.  Rep.  1380. 

3U0.  Lui  iHittua.— A  contract  between 
a  municipal  corporation  and  a  company  by 
which  the  latter  pays  a  bonus  (or  the  fran- 
chise therein  conferred  by  the  city  cannot 
be  construed  as  conferring  an  immunity 
from  the  payment  of  a  license  on  its  busi- 
ness, in  the  absence  of  an  express  stipula- 
tion to  that  effect  in  the  contract.  Nriu 
Orleans  v.  Orleans  R,  Co.,  43  La.  Ann.  4,  7 
So.  Rep.  S9'— Distinguishing  Gordon  v 
Appeal  Tax  Court,  3  How.  (U.  S.)  133; 
Oliio  State  Bank  v.  Knoop,  16  How.  376; 
Jefferson  Branch  Bank  v.  Skelly,  1  Black 
(U.  S.)  436. 

No  exemption  of  a  particular  institution 
is  to  be  implied  from  the  payment  of  a 
bonus,  as  that  would  be  to  set  up  judicial 
implications  against  an  express  exercise  of 
the  taxing  (lower.  New  Orleans  v.  Orleans 
R.  Co.,  42  /.a.  Ann.  4,  7  So.  Rep.  59.— Fol- 
lowing New  York  &  E.  R.  Co.  v.  Sabin,  26 
Pa.  St.  242. 

397.  Mimtiaaippi.  — The  fact  that  a 
company  runs  a  c<ir  over  itsrnad  containing 
goods  suitable  to  the  wants  of  its  employes, 
and  which  are  furnished  tn  them  in  pay- 
ment of  their  wages,  no  sales  being  made  to 
other  persons,  and  only  to  them  in  payment 
of  their  wages,  does  not  make  such  p  car 
a  "trading  car"  within  the  meaning  of  the 
Code  of  1880,  ^  584.  which  imposes  a  tax  for 
the  privilege  of  running  a  "trading  car."  A 
law  imposing  a  privilege  fax  must  be  con- 
strued favorably  to  the  citizen,  and  no  occu- 
pation is  to  be  taxed  unless  ricarly  within 
the  provision  of  the  law.  Vickshurg  **  St. 
R.  Co.  v.  State,  23  Am.  &*  Eng.  R.  Cas.  729. 
62  Miss.  105. 

An  individual  delivered  cotton  to  a  con> 
pany  for  shioment,  and  then  transferred  the 
bill  of  lading  to  a  bank.  The  creditors  of 
the  shipper  sued  out  an  attachment,  and 
caused  the  cotton  to  be  seized.  The  com- 
pany having  failed  to  ship  the  cotton,  the 


TAXATION,  UU8,  aUO. 


1U29 


sreign  exprcM 
I  the  state,  is 
late  interstate 
I  tux  upun  tlie 
and  nut  upon 
nitk.  (Ky.)  17 
HiNu  Crutclier 
Sup.  Ct.  Kep. 
Michigan,  135 

15.— QUOTINO 

insylvania,  114 
(26;  Leloup  V. 
Ct.  Rep.  1380. 
I  tract  between 
a  company  by 
s  for  the  (ran- 
le  city  cannot 
an  immunity 
le  on  its  busi> 
cpress  stipula- 
>ntract.  AVu/ 
La.  Ann.  4,  7 
lU  Gordon  v 
.  (U.  S.)I33: 
16  How,  376; 
kelly,  I  Black 

lar  institution 
l>aymeiit  of  a 
et  up  judicial 
ss  exercise  of 
ans  V.  Orleans 
'*P-  59.— FoL- 

0.  V.  Sabin,  36 

!  fact  that  a 
ad  containing; 
its  employes, 
them  in  pay- 
twing  made  to 
m  in  payment 
je  such  p  car 
caning  of  the 
loses  a  tax  for 
idingcar."  A 
must  be  ron- 
and  nooccu- 
icarly  within 
•kshurg  4*  Af. 
r.  R.  Cas,  729, 

ton  to  I  con;- 
raiisferred  the 
5  creditors  of 
ichment,  and 

1.  The  coro- 
e  cotton,  tht 


bank  brought  an  action  for  damages  against 
It.  The  latter  pleaded  that  the  bank  ai  tlie 
time  of  the  transfer  uf  the  bill  of  lading  was 
doing  business  without  a  sutlicienl  privi- 
•ege  license,  under  "an  act  in  relation  10 
nublic  revenue"  in  the  Code  of  1880,  and 
was,  therefore,  precluded  from  maintuining 
Its  action  by  seciiun  589,  which  provides 
that  "  all  contracts  made  with  any  person 
who  shall  violuie  this  act,  in  reference  to 
the  business  carried  on  in  disregard  of  this 
law,  shall  be  null  and  void  so  far  only  as 
such  person  may  base  any  claim  upon  them ; 
and  no  suit  shall  be  maintainable  in  favor 
of  such  person  on  any  such  contract." 
HeU,  that  by  the  assignment  of  the  bill  of 
lading  the  bank  acquired  ihe  title  to  the 
cotton;  and  the  action  being  upon  the  con- 
tract made  between  the  shipper  and  defend- 
ant, and  not  upon  the  contract  between 
itself  and  the  shipper,  is  maintainable. 
Peoptis  Bank  v.  Alabama  G.  S.  /i.  Co.,  65 
Miss.  36s,  4  ^0.  Rtp.  1 1 5. 

Under  the  statute  a  company  paying 
what  is  called  a  "  privilege  tax  "  is  exempt 
from  all  other  state  and  county  taxes  on 
lands  used  in  o{)erating  its  road ;  and  a  sale 
of  land  for  taxes  on  whicli  are  located  a  sec- 
tion house,  turntable,  and  other  improve- 
ments of  the  company  is  void.  Whether 
such  improvements  arc  actually  upon  the 
land  sold  or  not,  if  it  is  connected  with  the 
other  part  and  with  the  operation  of  the 
road,  it  is  exempt  from  further  taxation  after 
paying  the  privilege  tax.  Vickiburg&*M.  li. 
Co.  V.  Bradley,  66  Miss.  518,  6  So.  Kep.  321. 
— Distinguished  in  Lewis  v.  Vicksburg 
&  M.  R.  Co..  67  Miss.  82.  6  So.  Rep.  773. 

398.  TeiiiiotiHee.— A  railroad  company 
which  organizes  an  express  company  and 
carries  on  a  regular  express  business  as  a 
part  of  the  business  of  the  railroad,  under 
the  management  and  control  of  its  officers, 
and  by  its  own  agents,  is  subject  to  pay  a 
privilege  tax  imposed  by  statute  upon  ex- 
press companies.  Memphis  &■>  L.  R.  K,  Co. 
v.  State,  13  Am.  &*  Kng.  li.  Cat.  423.  9  Lea 
(Tenn.)  218.  42  Am.  Kep.  673. 

The  Tennessee  statute  giving  to  the  state 
the  right  to  imp-^se  what  is  termed  a  privi- 
lege tax  upon  sleeping  cars  running  through 
the  state  does  not  extend  to  counties,  and 
such  tax  imposed  by  a  county  is  illegal. 
Gibson  County  v.  Pullman  r.outhern  Car  Co., 
42  Fed.  Rep.  572. 

300.  WiRCoiiNln.— Under  Rev.  St.,  S§ 
1211-1213.  the  amount  of  money  to  be  paid 


for  a  license  to  operate  a  railroad  is  to  be 
determined  by  the  aggregate  mileage  of  all 
the  railroads  operated  by  the  company 
within  the  state  during  the  preceding  cal- 
endar year,  and  the  aggregate  amount  of 
the  gross  earnings  of  such  roads  during 
that  lime.  State  ex  rel.  v.  McFctridge,  8 
Am.  ^  Eng.  K.  Cas.  536,  56  Wis.  256,  14 
.\'.  W.  Kep.  185. 

Laws  of  1883,  cli.  3S3,  providing  that 
owners  of  palace,  drawing-room,  and  sleep- 
ing cars  shall  annually  reiurn  to  the  rail- 
road commissioner  a  "  statement  of  the 
gross  earnings  made  by  the  use  of  such  cars 
between  points  within  the  state,"  and  shall 
pay  a  license  fee  of  two  per  cent,  of  such 
earnings,  requires  a  statement  only  uf  ilie 
earnin''3  derived  from  the  use  of  such  cars 
in  transporting  passengers  who  both  get  on 
and  off  at  points  within  the  state.  Stat* 
v.  Pullman  Palace  Car  Co.,  64  Wis,  89,  23 
A^.  W.  Kep.  871. 

Under  the  above  statute,  in  determining 
to  which  class  any  railroad  belongs,  the 
number  of  miles  of  road  operated  and  the 
gross  earnings  during  the  preceding  calen- 
dar year  only  are  to  be  considered,  regard- 
less of  the  length  of  time  that  the  road  waa 
operated  during  the  year.  (Cassody,  J., 
dissenting.)  State  ex  rel.  v.  McFetridgt, 
64  Wis.  130,  24  N.  W.  Kep.  140. 

The  statement  required  is  only  of  the 
earnings  of  railroads  which  the  applicant  is 
operating  when  the  return  is  made,  and  for 
the  privilege  of  operating  which  it  is  re- 
quired to  obtain  tlie  license.  State  ex  rel.  v. 
MiFetridge,  64  Wis.  130,  34  A'.  W.  Rep.  140. 

When  one  company  commences  operating 
a  road  early  in  any  given  year,  and  the 
same  was  operated  by  another  company 
during  the  preceding  year,  the  earnings  of 
the  latter  company  thereon  form  the  proper 
basis  for  computing  the  lir;:»se  fee  to  be 
paid  by  the  company  first  mentioned.  Stat* 
ex  rel.  v.  McFetridge,  64  Wis.  130.  24  N.  W, 
Rep.  240. 

Under  the  above  statute  spur  tracks  are 
included  in  the  mileage.  St>ite  ex  rel.  v. 
McFetridge,  64  Wis.  130,  24  A^.  W.  Kep.  140. 

The  rental  paid  for  a  leased  railroad  is 
not  to  be  deducted  from  the  gross  earnings 
upon  which  the  license  fee  to  be  paid  liy  the 
lessee  is  computed.  State  ex  rel.  v,  McFat- 
ridge,  64  Wis.  130.  24.  N.  W.  Rep.  140. 

The  amount  received  by  a  company  for 
the  use  of  its  cars,  in  excess  of  the  amount 
paid  out  by  it  for  the  use  of  the  cars  oi 


1024 


TAXATION.  400,  401. 


».«•• 


other  companies,  it  a  part  of  tlie  gross  earn* 
ings  upon  whicli  the  license  fee  is  to  be 
computed.  Stat*  tx  rel.  v.  McFttridgi, 
64  Wis.  130,  24  A',  W.  Rep.  140. 

A  statute  granting  lands  to  a  company 
provided  that  it  should  at  specified  tunes 
"  make  a  report  of  its  (jross  earnings  fur  the 
preceding  year,  and  sliull  each  year  during 
the  continuance  of  the  exemption  "  pay  to 
the  state  "a  sum  equal  tu  live  /<r  centum  of 
its  gross  earnings  for  the  preceding  year, 
which  shall  be  in  lieu  of  all  other  license 
fees  exacted  from  said  company."  and  also 
provided  that  the  state  treasurer  should  ap- 
portion the  money  so  received  among  the 
several  counties  and  pay  over  the  same. 
Held,  that  the  five  per  ttntum  so  received 
by  the  state  treasurer  was  not  in  effect  a  tax 
upon  the  gross  eaiidngs  of  the  line  of  the 
road  for  the  preceding  year,  but  was  merely 
the  license  fee  fur  the  year  in  which  it  was 
p.iid,  and  that  the  counties  had  no  claim  tu 
a  proportion  of  the  percentage  paid  by  the 
company  to  the  state  treasurer  in  the  year 
f.illuwing  that  in  which  the  exemption  ex- 
pired. Stat*  ex  rel.  v.  Harshaw,  41  Am.  &» 
I£ng.  /i.  Cat.  685,  76  Wis.  230,  45  A'.  W. 
Hep,  308. 

ziT.  uroom  taxis.* 

400.  In  general  —  CouHtltiition- 
allty. — Since  the  approval  of  Ala.  Revenue 
Act  of  December  31,  1868  (Pampli.  Acts,  p. 
397),  there  has  been  no  law  in  the  state  au- 
thorizing the  assessment  and  collection  of 
taxes  on  the  income  of  railroad  companies. 
StateM.  Board  of  Revenue,  73  Ala.  65. 

The  exaction  by  the  state  of  one  fifth  of 
the  passenger  fare  collected  by  a  company 
over  a  certain  branch  of  its  road  is  not  a 
capitation  tax.  or  in  any  proper  sense  a  tax 
upon  the  passenger  for  the  right  of  transit, 
but  a  tax  imposed  upon  the  corporation 
with  its  consent,  and  therefore  free  from  all 
constitutional  objection.  State  v.  Baltimore 
6-«  O.  R.  Co.,  34  Aid.  344.  —  Explaining 
AND  DISTINGUISHING  Crandall  V.  State,  6 
Wall.  (U.  S.)  35.  Quoting  Chenango 
Bridge  Co.  v.  Binghamton  Bridgt*  Co.,  3 
Wall.  74;  M'Cullough V.Maryland, 4 Wheat. 
(U.  S.)  429. 

Even  if  the  one  fifth  of  the  passenger  fare 
secured  to  the  state  under  the  provisions  of 
Md.  Act  of  1833,  ch.  17s,  and  its  supple- 

*See  also  Rbtinui,  4-12. 


ments,  were  a  capitation  tax  unconstitution- 
ally  imposed  upon  passengers  lor  the  right 
of  transit,  the  company,  having  collected 
the  money  in  pursuance  01  tlie  statutory 
provisions,  could  not  be  allowed  to  retain  it 
as  against  tlie  state ;  and  the  same  may  be 
recovered  by  the  state  in  an  action  of  as- 
sumpsit for  money  had  and  received.  State 
v.  Baltimore  &*  O.  R.  Co.,  34  Md.  344. — 
QuuilNG  Waters  v.  State,  I  Gill  (Md.)  302: 
Tenant  v.  Elliott,  1  B.  &  P.  3. 

401.  AVliu  tuxublu.— The  income  tax 
on  corporate  bonds  or  loans  imposed  by 
Pa.  Act  of  June  30,  1885,  is  not  a  tax  laid  on 
the  company  nor  on  the  bondholders  as  a 
body,  but  upun  each  resident  bondholder  as 
an  individual.  Com.  v.  Philadelphia  &*  R. 
R.  Co..  150  Pa.  St.  312,  24  All.  Rep.  612.— 
Quoted  in  Com.  v.  Philadelphia.  N.  &  N. 
Y.  R.  Co.,  2  Pa.  Dist.  731. 

EuKine  drivers,  porters,  and  laborers  em- 
ployed by  a  company,  at  either  annual  sala- 
ries or  weekly  wages  amounting  tu  £ioo 
per  year,  are  assessable  under  scliedulc  D 
of  5  and  6  Vict.  c.  35,  16  and  17  Via.  c.  34. 
and  23  Vict.  c.  14;  the  company  itself  is  not 
liable  to  be  assessed  in  respect  of  such  em- 
ployes under  schedule  E  of  these  statutes. 
Attorney-General  v.  Lancashire  &*  V.  R.  Co., 
2  //.  &*  C.  792,  10  Jur.  N.  S.  70s,  33  L.  J. 
Ex.  163,  13  W.  R.  8.  10  Z,.  7;  95. 

Schedule  E  of  5  and  6  Vict.  c.  3$,  16  and 
17  Vict.  c.  34,  and  23  Vict.  c.  14  extends 
only  tu  offices  and  empluyments  under  cor- 
porations which  arc  of  a  public  nature.  At- 
torney General  v.  Lancashire  &*  V.  R.  Co.,  2 
//.  6-  C.  792.  'o  y»r.  N.  S.  705.  3j  L.  J.  Ex. 
163.  13  /»'.  A'.  8,  10  Z..  T.  95. 

The  income  tax  on  salaries  or  wages  of 
railway  employes,  such  as  engineers  and 
laborers,  cannot  be  attached  in  the  hand.s  of 
the  company  under  23  Vict.  c.  14,  {$  6;  such 
employes  do  not  hold  "public  offices  and 
employments  of  profit "  within  s  and  6 
Vict.  35,  schedule  E.  Attorniy-General  v. 
Lancashire  iS-  Y.  R.  Co..  10  Jur.  N.  S.  705, 
10  L.  T.  95,  2  //.  &-  C.  79».  33  ^.  /.  Ex.  163, 
i:  W.  R.  8. 

Persons  in  the  employ  of  an  intercolonial 
railway  department  at  a  certain  place  were 
divided  into  five  classes:  (1)  members  of 
the  civil  service  of  the  dominion,  under  the 
Civil  Service  Act  of  1882.  who  received  a 
yearly  salary,  and  contributed  to  the  super- 
annuation fund  of  the  civil  service;  (2)  per- 
sons who  received  a  yearly  salary,  were  not 
appointed  to  tbs  civil  service  as  provided 


TAXATION,  402,  403.— TAX  RECEIVER. 


102& 


constitution- 
tor  the  right 
ing  collected 
lie  sutuiory 
id  to  retain  ii 
mine  may  be 
aciiun  of  as- 
:eivcd.  State 
Aid.  344.— 
ill  (Md.)  302: 

:  income  tax 
inipoicd  by 
a  tax  laid  on 
holders  aa  a 
undholdcr  as 
itlphia  &»  A\ 
Rep.  61a.— 
)hia.  N.  &  N. 

laborers  em- 
'  annual  sala- 
ling  to  ;£ioo 

schedule  D 
17  Via.  c.  34. 
y  itself  is  not 

of  such  em- 
esc  statutes, 
f  &*  Y.  R.  Co.. 
70s.  33  ^.  /. 
IS- 

c.  3S.  16  and 
:.  14  extends 
Its  under  cor- 
I  nature.    At' 

-  y.  K.  Co..  2 

.  3j  L.  J.  Ex. 

or  wages  cf 
ngineers  and 
the  hund.s  of 
14,  iS6;  such 
c  oliices  and 
lin  s  end  6 
sy'General  v. 
ur.  N.  S.  705, 
L.  J.  Ex.  163, 

intercolonial 
in  place  were 

members  of 
on,  under  the 
10  received  a 
to  the  super- 
vice  ;  (2)  per- 
ary,  were  not 
■■  as  provided 


by  the  act  of  1882,  but  held  an  office  created 
by  a  dominion  statute,  or  were  appointed 
by  the  governor-general  under  authority  of 
a  statute,  and  who  did  nut  contribute  to 
the  superannuation  fund;  (3)  persons  paid 
nKjnthly,  at  a  certain  rale  per  year,  who  were 
liable  to  be  dismissed  at  any  time,  and  who 
were  not  appointed  under  the  Civil  Service 
Act,  n»r  as  mentioned  in  class  2,  and  did 
not  contribute  tu  the  superannuation  fund; 
(4)  engine  drivers  and  conductors,  employed 
in  running  trains,  and  paid  by  the  mileage 
run,  who  received  their  pay  monthly,  and 
were  subject  to  dismissal  at  any  time;  (5) 
carpenters  and  other  mechanics  and  work- 
men,  who  were  paid  monthly  according  to 
the  lime  employed,  and  were  subject  to  dis- 
missal in  the  same  manner  as  classes  3  and 
4.  Held,  that  the  persons  in  each  of  these 
classes  were  ixempt  from  assessment  for 
municipal  purposes  on  their  incomes  re- 
ceived from  the  government.  Coatus  v. 
Moncton,  25  Ntw  lirutt.  605. 

The  New  Brunswick  railway  company  is 
liable  to  be  assessed  in  the  city  of  St.  John 
on  the  net  income  annually  derived  from 
the  running  of  the  railway.  Ex  parte  Cram, 
30  .Xtw  Brun.  S45. 

402. ttud   tipuu  what.— After  a 

company  had  expended  money  equal  to 
eighty  per  cent,  of  its  capital  stock  in  im- 
proving its  road,  the  directors  passed  a  reso- 
lution declaring  that  each  stockholder  was 
entitled  to  eighty  per  cent,  of  his  slock,  to 
be  paid  out  of  the  future  earnings  of  the 
company,  and  certificates  were  issued  ac- 
cordingly. Htld,  that  such  certificates  were 
dividends  in  scrip  within  the  meaning  of  the 
Act  of  Congress  of  June  30,  1864,  ch.  173,  § 
122,  as  amended  in  1866,  and  were  liable  to 
pay  an  income  tax  during  the  years  that  the 
law  was  in  force.  Bailty  v.  Ntw  York  C.  &* 
//.  A',  /i.  Co.,  13  Am.  &*  Etig.  K.  Cas.  333. 106 
L'.  S.  109,  I  Sup.  Ct.  Rtp.  62.— Following 
Lailey  v.  New  York  C.  &  H.  R.  R.  Co.,  22 
Wall.  (U.  S.)  604. 

Under  the  Internal  Revenue  Act  of  June 
30,  18C4,  a  non-resident  alien  holding  bonds 
in  a  railroad  corporation  of  the  United 
Slates  is  not  taxable.  Northern  C.  R.  Co.  v. 
Jackson,  7  Wi//.  (U.S.)  262. 

An  English  company  constructing  a  rail- 
way in  India,  and  receiving  from  the  local 
Indian  government  an  annuity  the-efor,  is 
liable  to  be  assessed  to  the  income  tax  in 
respect  of  the  whole  amount  of  the  annuity 
reoeived  by  it.  and  is  not  entitled  to  any 
7  D.  R.  D.— 65 


deduction  in  respect  of  a  balance  applied 
to  the  purposes  of  a  sinking  fund.  Nizam 
Stat*  R.  Co.  V.  liya/t,  L.  R.  24  Q.  D.  D.  $48. 
—  QuoriNc;  Blake  v.  Brazilian  R.  Co.,  Rep. 
of  Tax  Cas.  part  27,  p.  s8. 

40U.  Eiit'orcemvnt.  —  Where  a  state 
leases  a  railroad  which  it  owns,  with  a  pro- 
vision in  the  contract  as  to  what  taxes  shall 
be  paid  on  the  road,  based  on  a  certain  per 
cent,  of  its  net  income,  the  state  cannot, 
during  the  continuance  of  the  lease,  increase 
the  tax  rate.  Stale  v.  IVesttrn  &*  A.  R. 
Co.,  66  Ga.  563. 

The  payment  of  this  income  tax  covers 
also  such  property  as  may  be  necessary  and 
proper  for  the  use  and  enjoyment  of  the 
franchise  secured  by  the  lease  to  the  com- 
pany, whether  it  was  received  from  the  state 
or  has  been  purchased  since  the  lease  be- 
gan. Other  property  of  the  company  would 
be  subject  to  taxation  as  the  property  of  in- 
dividuals. State  V,  Western  &»  A.  R.  Co., 
66  Ga.  563. 

Proof  as  to  what  bonds  were  held  by  resi- 
dent bondholders  in  one  year  is  not  proof 
as  to  the  holding  for  a  subsequent  year, 
even  though  it  be  shown  that  the  aggregate 
amount  was  fairly  constant,  and  there  is  no 
authority  in  law  for  deducting  the  tax  for 
one  year  from  the  holders  for  another  year. 
Com.  V.  rhitadeiphia  &>  R.  R.  Co..  I$o  J'a. 
St.  312,  24  Ati.  Rep.  612. 


TAXES. 
Duty  of  lessee  to  pay,  see  Leases,  ktc,  75. 
Liability  of  reorganized  company  for,  see 

Rkoroanization.  1  7. 
Payment  of,  by  receiver,  see  Rkcbivers,  89. 
—  —  when  makes  possession  adverse,  ice 

Adverse  FussKSiiioN,  11. 


TAXPAYERS. 

Assent  of,  to  railway  aid,  sre  Municipal  and 

Local  Aid,  100-107. 
Issuance  of  stock  to,  in  railway  aid  cases, 

see  MuNiripAi.  and  Local  Aid,  102. 
Right  of,  to  sue  to  restrain  issue  of  railway 

aid  bonds,  see  Municipal  and  Local  Aid. 

200,  800. 
Signature  by,  to  petition  in  aid  of  railway, 

see  Municipal  and  Local  Aid,  81-80. 
When  entitled  to  stock,  see  Municipal  and 

Local  aid.  02. 


TAX  RECEIVBB. 
Duties  of;  see  Taxation,  203. 


1026  TAX  TITLES— TELEUKM'H  AND  TELEniONE   LINES,  1,  2. 


Iltt: 


i 
1 

'.  ' 

TAX  TITLES. 

Validity  9t,  and  rights  of  purctaaser,  wt 
Taxation.  320. 


TBAMS. 
Injnries  to,  at  crossing;*!  lee  Crominos,  In- 

JURIM,  KIC,  Al'. 

Liability  for  colliding  with,  lee  Stkkrt  Rail- 

WAVs,  47a-47A. 
—  of  iteam  railroad  for  collisions  with,  in 

■treeti,   mc    Stkkkts    anu    Hiuiiwavs, 

882. 
Obitmction  of  track  by,  lee  Strut  Rail* 

WAYS,  210. 


TELEGRAM. 
Admitsibility  and  effect  of,  as  OTldenct,  see 

EvtORNCE.  240. 


TELEOSAPH  AND  TELEPHONE 
LINES. 

Business  of,  when  deemed  interstate  com- 
merce, lee  Intirstatk  Commercs,  1>. 

Contributory  negligence  of  employi  struck 
by  poles,  lee  EMri.uv<is,  Injuhiks  iu, 
861. 

Disturbance  of  telephone  system  by  trolley 
wires,  see  Llkctric  Railways,  1:I. 

Liability  for  injury  to  employi  of  telegraph 
companies,  see  Employes,  Injuhiks  to, 
401. 

License  tax  on  foreign  telegraph  companies, 
see  Inters i-ATR  CnMMKKCK,  2i;i. 

Negligence  as  to  position  of  poles,  question 
for  jury,  see  Employes,  Injitkiksto,  080. 

Power  of  commissioners  to  fix  charges,  see 
Railway  CoMMissinNKRs,  11. 

Regulation  of,  see  Union  Pacific  R.  Co.,  8. 

Taxation  of,  see  Taxation,  72. 

Telegraph  operators  as  fellow-serrants  with 
other  employes,  see  Frllow-srrvants, 
424. 

—  wires,  when  deoioed  fixtures,  see  Fix- 
tures, lO. 

Transportation  of  employes  of,  liability  of 
carrier,  see  Carriagb  of  Passbnoeks, 
341. 

1.  Construction,  and  rights  of  a<l- 
Jolniuff  ownera.*— Trespass  fuart  clau- 
tum /regit  will  He  by  the  owner  of  land 
abutting  upon  a  public  highway,  in  which 
he  is  also  owner  of  the  fee,  against  a  tele- 
graph company  for  entering  upon  the  hiRh- 
way  and  erecting  telegraph  poles  thereon 


*  Right  of  railroad  company  and  of  owner 
considered  where  telegraph  line  is  erected  on 
railroad  right  of  way,  see  note,  7  L.  R.  A.  aoo. 


without  the  consent  of  pluiiiliil.  lioarJ  of 
Tradt  Ttl.  Co,  v.  liarneit,  107  ///.  507. 

Where  tlic  statute  allows  r.iilrtmil  coin* 
panics  to  acquire  u  right  u(  wuy  nut  c-xcecd- 
ing  sixty  feet  in  widtli,  and  a  c(^in|miiy 
enters  upon  lund  and  cunstructs  its  ruad 
with  the  consent  of  tlic  landowner,  but 
without  any  conveyance  or  coniracl  specify- 
ing the  width  u(  the  right  uf  way,  tiie  cutn- 
pany  acquires  a  right  uf  way  sixiy  feet 
wide  ;  uiid  it  is  coinpeteiit  fur  the  cuin|)uiiy 
itself  to  erect  un  such  right  uf  way  tclc};ruph 
pules  necessary  tu  the  pruper  maintenance 
of  a  telegraph  line  alung  the  way,  ur  to  con- 
tract with  anuthur  cumpany  (ur  such  erec- 
tion. Prather  v.  Westtrn  Union  Til.  Co., 
14  Am.  &*  Eng.  K.  Cas.  1,  89  tnd.  501  ; 
former  appeal  in  52  /«</.  16.— Explain  kd 
IN  Iiuiiana|>ulis  &  V.  R.  Cu.  v.  Ueynukls, 
116  Ind.  356,  19  N.  E.  Kcp.  141. 

A  cumpany  may,  fur  its  own  use  in 
operating  a  roud,  construct  a  tclcgiuph  line 
over  and  ulung  its  right  of  way,  and  in  so 
doing  cut  down,  if  necessary,  trues  standing 
upon  its  right  of  way,  wiiliuui  sulijecting 
itself  to  any  additiunul  claim  tu  the  uri};i« 
nal  landowner  for  conipcnsutiun.  iVattrn 
Union  Tel.  Co.  v.  Rich,  19  Kan,  517. 

H  a  line  of  telegraph  is  built  by  a  railroad 
company  and  another  party,  at  their  juint 
expense,  and  fur  their  joint  use,  the  latter 
is  only  responsible  tu  the  ianduwner  fur  the 
damages  caused  by  the  additional  bunien, 
if  there  be  any,  cast  upun  the  oaseinent  by 
its  useuf  the  telegraph  line.  Western  Union 
Tel.  Co.  V.  Rick,  19  /Can.  517.  —  DlSTIN- 
GUISHINO  Hatch  V.  Cincinnati  4  I.  R.  Co.. 
18  Ohio  St.  92 ;  Little  Miami  &  C.  R.  Co.  v. 
Dayton,  23  Ohio  St.  510;  Stale  v.  Maine,  27 
Conn.  641.— Revikwf.d  and  Qt;oTEi>  in 
American  T.  &  T.  Co.  v.  Pearce,  71  Md.  535. 

Injunctiun  should  not  be  awarded  tu  re- 
strain  a  telegraph  company  fruin  guing  on 
to  plaintiff's  land  with  a  view  of  condemn- 
ing a  right  uf  way,  until  a  discovery  be  had 
of  the  company's  incorporation  and  pro- 
ceedings authorizing  the  condemnaiioii, 
Norfol*  **  ir.  R.  Co.  V.  Postal  Ttl.  Cable 
Co.,  88  Va.  932,  14  5'.  ^.  Rep.  689. 

2.  Condeniiiutioii  of  railruud  riglit 
of  way  for  telugraiili  line.  -Neither 
the  acts  of  congress  declaring  railroads  to 
be  post  routes,  nor  the  Act  of  July  24,  1866, 
providing  that  telegraph  companies  may 
construct  their  lines  over  post  roads,  au- 
thorize a  telegraph  company  to  establish  its 
lines  over  the  right  of  way  of  a  railroad 


N1£S,  1,2. 


TELEGRAPH   AND  TELEPHONE  LINES,  3. 


1027 


mill.  lioatti  o/ 
07  ///.  507. 
I*  railroad  cum- 
way  nut  exceed- 
mid  it  c(jin|>aiiy 
structa  ils  ruad 
landowner,  but 
Contract  spccify- 
i  way,  thu  coni- 
way  sixty  feet 
fur  ilic  cuin|)aiiy 
uf  way  telcifrapli 
)er  maintenance 
:  way,  ur  to  con« 
f  fur  such  ercc- 
Union  Til.  Co., 
I,  89  Ind.  JO  I  : 
6.— liXPI-AINI.ll 
lo.  V.  Kcyiiulds, 
41. 

its  own  ude  in 
a  telegraph  line 
way,  and  in  so 
t,  trues  standing 
liuui  8ubjcctin({ 
in  to  the  uri|;i> 
uion,  H'l-ittrn 
'an.  J 1 7. 
iiilt  by  a  railroad 
t,  at  their  joint 
use,  the  latter 
iiduwner  for  the 
litional  bunien, 
le  casement  by 
H'tstttn  Union 
517.  — DlSTIN- 
ati  4  I.  R.  Co., 
li  &  C.  R.  Co.  V. 
ite  V.  Maine,  27 
10    QUOTEO    IM 

irce,7i  Md.  535. 
awarded  tu  re- 
frum  Koing  on 
w  of  condemn- 
scovery  be  liad 
ation  and  pro* 
condemnation. 
ntal  Til.  LabU 
.  689. 

tilroiul  right 
Inc.  -  Neither 
iR  railroads  ti> 
ijuly  24,  1866. 
ompanies  may 
tost  roads,  au- 
to establish  its 
'  of  a  railroad 


comptny  without  nialcing  compensation 
therefor.  Atlantic  &»  P.  T*l.  Co.  v.  Chit^o, 
Ji.  I.  *•  P.  /i.  Co..  6  BiMs.  ( U.  S.)  1  $8. 

In  proceedings  under  Ala.  Act  of  1873, 
relating  to  telegraphs,  by  a  telegraph  com- 
pany, to  obtain  the  right  to  construct  lines 
over  the  right  of  way  of  a  railroad  com- 
pany, the  railroad  corporation  cannot  com- 
plain that  another  telegraph  company,  to 
whom  it  had  granted  the  exclu.sive  privilege 
over  its  right  of  way,  was  nut  made  a  party. 
Nur  is  it  an  available  objection,  on  the  part 
of  the  railroad  company,  that  the  petition 
initiating  the  proceedings  does  not  show 
that  there  were  owners  in  fee,  apart  from 
tne  railroad  corporation,  of  the  lands  over 
which  the  easement  is  sought.  JVrw  Orltant, 
M.  &*  r.  X.  Co.  V.  SoMlh*rH&»  A.  Ttl.  Co., 
a  Ala.  311,  13  Am.  Ay.  A'tfi.  135. 

It  is  within  the  p<iwer  of  the  legislature  to 
provide  (or  the  taking  of  the  property  of  a 
railroad  company  for  the  use  of  a  telegraph 
line,  but  such  property  cannot  be  taken 
without  just  compensation  made.  South- 
western R.  Co.  v.  Souihtrn  &>  A.  Tel.  Co.,  46 
Ca.  43.— Distinguished  in  Mayor,  etc.,  of 
Atlanta  v.  Central  R.  &  B.  Co.,  $3  Ga.  120. 

An  act  which  provides  fur  the  assessment 
by  arbitrators  of  the  damage  sustained  by 
a  railroad  by  the  erection  of  a  telegraph  line 
alung  its  right  of  way,  but  gives  no  remedy 
for  the  enforcement  of  such  award,  nor 
makes  any  provision  for  an  appeal  so  as  to 
have  the  question  of  damage  tried  by  a 
jury,  is  unconstitutional.  Southwestern  R. 
Co.  v.  Southern  Sf  A.  Tel.  Co.,  46  Ga.  43. 
— Distinguished  in  Oliver  v.  Union  Point 
&  W.  P.  R.  Co.,  39  Am.  A  Eiig.  R.  Cas.  lo'. 
83  Ga.  257.  9  S.  E.  Rep.  1086. 

A  telegraph  or  telephone  company  is, 
with  respect  to  its  right  to  construct  its  lines 
over  private  property,  just,  as  niu^U  subject 
to  the  provision  of  Md.  Const,  art.  3,  {  40, 
that  forbids  the  taking  of  private  property 
(or  public  use  without  just  compensation, 
as  is  a  railroad  company  or  any  corporation 
clothed  with  the  power  of  taking  private 
property  for  public  use ;  and  the  averment 
that  such  company  is  proceeding,  or 
threatens  to  proceed,  to  construct  its  line  of 
poles  and  wires  on  and  over  the  complain- 
ant's land,  without  his  leave  or  license,  and 
without  paying  or  tendering  him  compen- 
sation for  the  use  of  his  lands,  for  this 
purpose,  is  sufficient  to  entitle  him  to  an 
injunction.  American  T.&*  T.  Co.  v.  Pearct, 
71  Md.  53S,  \lAtl.  Rep,  91a 


Where  a  telephone  or  telegraph  line  is 
constructed  by  some  one  over  the  right  of 
way  of  a  railroad  company,  or  by  the  rail- 
road company  itself,  in  good  faith,  for  its 
use  and  benefit  in  the  operation  of  its  road, 
and  to  facilitate  its  business,  or  it  is  reason- 
ably necessary  for  that  purpose,  the  land- 
owners have  no  ground  of  complaint,  such 
use  of  their  land  being  within  the  scope  of 
the  original  easement  for  which  they  have 
received  compensation;  but  if  the  line  be 
not  constructed  for  such  purpose,  it  will  be  a 
new  easement,  and  put  a  new  and  additional 
burden  upon  the  land,  for  which  the  owners 
will  be  entitled  to  com|)ensation.  American 
T.  &*  T.  Co.  V.  Pearce,  71  Md.  535,  18  A/l. 
Re/>.  910.— Reviewing  and  quotino  West- 
ern Union  Tel.  Co.  v.  Rich,  19  Kan.  517. 

The  Act  of  Congress  of  July  24,  1866  (U. 
S.  Rev.  St.  {  5263),  providing  that  telegraph 
companies  shall  have  the  right  to  construct, 
maintain,  and  operate  lines  of  telegraph 
over  any  of  the  military  or  post  roads  of 
the  United  States,  and  the  Act  of  Congress 
of  |unc  8.  :872  (U.  S.  Rev.  St.  §  3964),  de- 
claring all  the  railroads  in  the  country  post 
roads,do  not  give  to  telegraph  companies  the 
right  to  construct  their  lines  over  the  right 
of  way  of  railroad  companies  without  pre- 
viously obtaining  the  consent  of  the  owners 
of  the  right  of  way,  or  condemning  the 
same  f(jr  telegraph  purposes,  and  making 
compensation  therefor.  American  T.  &*  T, 
Co.  V.  Pearce,  71  Aid.  535.  18  Atl.  Hep.  910. 
—Quoting  Pensacola  Tel.  Co.  v.  Western 
Union  Tel.  Co.,  96  U.  S.  1. 

Casting  an  additional  burden  by  erecting 
a  telegraph  or  telephone  line  over  the  right 
of  way  of  a  railroad  company  is  just  as 
much  taking  the  land  for  public  use  as  was 
the  taking  of  it  for  the  original  easement, 
and  courts  of  equity  have  jurisdiction  to 
prevent  it  by  injunction,  until  compensation 
is  paid  or  tendered.  American  T.  &*  T.  Co. 
V.  Pearce,  71  Md.  535,  18  Atl.  Rep.  910. 

Va.  Code,  \  1287,  providing  that  telegraph 
companies  may  construct  their  lines  "along 
and  parallel  to  any  of  the  railroads  of  the 
state,"  does  not  authorize  the  condemnation 
of  a  right  of  way  by  a  telegraph  company 
along  and  upon  the  right  of  way  of  a  rail- 
road company.  Postal  Tel.  Cable  Co.  v. 
Norfolk  &*  W.  R.  Co.,  88  Va.  920.  14  S.  E. 
Rep.  689. 

3.  Contracts  between  telegraph 
conipauics  and  railroad  conipanioii, 
generally.— A  contract  between  a  railroad 


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TELEGRAPH   AND  TELEPHONE   LINES,  3. 


If  ■■5:3;  I 


company  and  a  telegraph  company  to  con- 
tinue for  twenty-five  years  was  signed  by  the 
telegraph  comi)any,  and  the  agent  of  the  rail- 
road company  wiote  a  letter  accepting  it, 
except  as  to  one  matter,  to  which  the  tele- 
graph company  acceded;  but  the  railroad 
company  never  formally  signed  the  con- 
tract. Held,  that  the  acceptance  by  the 
agent  was  a  sufHcient  signing  wiihin  the 
statute  of  fra'  ds,  and  the  terms  of  the  con- 
tract being  mutually  carried  out  for  over  a 
year,  it  was  tikcii  out  of  the  statute  by  part 
performanc  ic  .'.as  binding  on  the  railroad 
company,  A  extern  Union  Tel.  Co,  v.  Chi- 
cago &*  P.  R.  Co  86  ///.  246,  17  Am.  Ry. 
Rep.  407. 

A  railroad  c:  on  '  made  an  agreement 
with  a  lelegrap  jii-iany  to  extend  its  line 
from  Conncllsvii.e  to  Uniontown,  Pennsyl- 
vania, on  conditions  that  defendant  should 
have  the  collections  for  messages  taken  at 
Uniontown  to  go  to  points  on  the  company's 
line,  to  which  arrangement  plaintifl,in  whose 
name  the  action  was  prosecuted,  became  a 
party,  agijeing  with  the  railroad  company 
to  erect  and  complete  said  extension  in  con- 
sideration of  one  half  of  the  receipts  thereof, 
no  charge  to  be  made  for  the  railroad  busi- 
ness. On  the  lease  of  said  line  to  another 
telegraph  company  provision  was  made  by 
Agreement  between  defendant  and  said  new 
company  whereby  defendant  was  to  have 
the  gross  receipts  of  the  Connellsville  and 
Uniontown  line.  Held,  that  the  plaintiff, 
having  built  the  line  as  he  agreed,  was  en- 
titled, in  pursuance  of  the  aforesaid  stip- 
ulations, to  half  of  all  the  earnings  of  the 
telegraph  line  from  Connellsville  to  Union- 
town,  including  intermediate  stations.  Pitts- 
burgh &*  C.  R.  Co.  V.  Shaw  (Pa.),  36  Am.  &* 
Eng.  R.  Cas.  453,  14  Atl.  Rep.  323. 

An  agreement  of  plaintiff  to  erect  a  tele- 
graph along  the  line  of  defendant's  railroad, 
in  consideration  of  one  half  the  receipts 
thereof,  contained  a  privilege  to  the  railroad 
of  putting  an  additional  wire  upon  the  poles 
of  plaintiff,  to  be  used  for  the  business  of 
the  railroad  only,  and  upon  the  exercise  of 
such  privilege  the  contract  for  maintenance 
and  working  of  the  line  on  the  part  of  the 
railroad  company  should  cease.  HeiJ,  that 
the  use  of  such  wire  for  commercial  as  well 
as  railroad  purposes  entitled  the  plaintiff  to 
damages  based  on  the  earnings  of  the  line 
with  the  additional  wire.  Pittsburgh  &*  C. 
H.  Co.  V.  Shaw,  (Pa.)  36  Am.  &»  Et^g.  R. 
Cas.  453,  14  Atl.  Rtp.  323. 


The  defense  that  a  contract  on  the  part 
of  a  railroad  company  to  maintain  and  oper- 
ate a  telegraph  line  is  ultra  vires  is  not 
available  to  the  defendant  in  this  action. 
Pittsburgh  «S-  C.  R.  Co.  v.  Shaw,  (Pa.)  36 
Am,  6-  Eng.  R.  Cas.  453,  14  Atl.  Rep.  323. 

Where  an  act  of  congress  authorizes  a 
company  to  construct  a  railroad  and  tele- 
graph line,  a  contract  by  the  company, 
whereby  it  attempts  to  turn  over  the  man- 
agement and  control  of  the  telegraph  line 
to  a  telegraph  company,  with  power  to  fix 
rates  thereon,  is  ultra  vires  and  void.  Cen- 
tral Branch  U.  P.  R.  Co.  v.  Western  Union 
Tel.  Co.,  I  McCrary  (U.  S.)  551,  3  Fed. 
Kep.  417. 

In  such  case  where  the  railroad  company 
takes  possession  of  the  telegraph  line,  and 
at  the  same  time  institutes  proceedings  to 
have  the  contract  declared  null  and  void, 
the  telegraph  company  cannot  crmpel  a 
restitution  of  the  property  pending  the  pro- 
ceedings. Central  Branch  U.  P.  R.  Co.  v. 
Western  Union  Tel.  Co.,  i  McCrary  (U. 
S.)  551,  3  Fed.  Rep.  417.— Following  At- 
lantic &  P.  Tel.  Co.  V.  Union  Pac.  R,  Co., 
I  McCrary  541. 

A  court  of  equity,  without  determining 
the  question  of  the  validity  of  a  contract 
under  which  a  railroad  company  transferred 
its  right  to  construct  and  operate  a  tele- 
graph line  along  the  line  of  the  road  (the 
right  to  make  the  contract  having  been 
conferred  by  statute),  will  enjoin  its  viola- 
tion pending  such  determination,  although 
the  contract  be  one  of  which  specific  per- 
formance could  not  be  decreed.  Western 
Union  Tel.  Co.  v.  Union  Pac.  R.  Co.,  i  Mc- 
Crary (U.S.)  558,  3  Fed.  Rep.  423. 

A  railroad  company  gave  to  a  telegraph 
company  the  exclusive  right  to  construct 
and  operate  a  telegraph  line  along  the  line 
of  its  road  for  twenty-five  years.  Another 
company  subsequently  came  into  possession 
of  the  railroad  by  foreclosure,  but  ratified 
the  contract  with  the  telegraph  company, 
and  afterwards  seized  its  line  and  cut  off  its 
connections.  Held,  upon  a  prayer  for  an 
injunction  to  restrain  the  railroad  company 
from  preventing  the  reconnection  and  use 
of  the  telegraph  line,  that  although  the 
clause  of  the  contract  giving  the  plaintiff  an 
exclusive  right  might  be  void,  or  even  should 
the  whole  contract  be  declared  void  upon 
the  final  hearing  of  the  case,  an  injunction 
should  issue  to  remain  in  force  until  the 
validity  of  the  contract  should  be  passed 


TELEGRAPH  AND  TELEPHONE   LINES,  4. 


1029 


ct  on  the  part 
main  and  oper- 
a  vires  is  not 
ill  this  action. 
Shaw,  (Pa.)  36 
All.  Rep.  323. 
s  authorizes  a 
road  and  tele- 
tlie  company, 
over  the  man- 
telegraph  line 
h  power  to  fix 
nd  void.  Cen- 
Western  Union 
'•)   55'.  3  F«d. 

Iroad  company 
{raph  line,  and 
proceedings  to 
null  and  void, 
inot  crmpel  a 
tnding  the  pro- 
7.  P.  R.  Co.  V. 
McCrary  (U. 
OLLOWING  At- 
n  Pac.  R.  Co., 

it  determining 
1  of  a  contract 
any  transferred 
operate  a  tele- 
f  the  road  (the 
L  having  been 
njoin  its  viola- 
ation,  although 
ch  specific  per- 
:reed.  Western 
c.  R.  Co.,  I  Mc- 

p.  423- 

to  a  telegraph 
It  to  construct 

along  the  line 
ears.  Another 
into  possession 
re,  but  ratified 
raph  company, 
;  and  cut  ofl  its 

prayer  for  an 
ilroad  company 
lection  and  use 

although    the 

the  plaintif!  an 
,  or  even  should 
ired  void  upon 
;,  an  injunction 
force  until  the 
9uld  be  passed 


upon,  and  an  adjustment  of  accounts  grow« 
ing  out  of  its  execution  in  the  past  should 
be  had.  Western  Union  Tel,  Co.  v.  St. 
Joseph  &*  W.  R.  Co.,  I  McCrary  (U.  S.) 
565.  3  Fed.  Rep.  430. 

Where  a  contract  between  a  railroad  com- 
pany and  a  telegraph  company  for  the  erec> 
tion  of  a  telegraph  line  proves  to  be  invalid, 
equity  urill  not  permit  the  railroad  company, 
after  the  work  is  done,  to  take  advantage 
of  the  contract  and  take  the  whole  of  the 
telegraph  property.  Western  Union  Tel. 
Co.  v.  Burlington  &-  S.  W.  R.  Co. ,  3  McCrary 
{U.  5.)  130,  II  Fed.  Rep.  i. 

Where  a  railroad  company  is  required  by 
its  charter  to  construct  a  telegraph  line,  it 
cannot  avoid  a  contract  entered  into  with  a 
telegraph  company  for  the  construction  of 
the  line,  on  the  ground  that  it  had  not  the 
capacity  to  make  the  contract,  or  that  it 
was  a  usurpation  of  its  functions.  West- 
ern Union  Tel.  Co.  v.  Kansas  Pac,  R.  Co.,  4 
Fed.  Rep.  284. 

A  stipulation  in  such  contract  that  the 
railroad  company  would  not  transport  men 
or  materials  to  any  other  telegraph  company 
at  less  than  regular  rates,  and  not  to  give 
to  any  other  company  permission  to  erect  a 
telegraph  line  along  the  road,  appears  to  be 
in  opposition  to  the  act  of  Congress  of  1866 
to  aid  in  the  construction  of  telegraph  lines, 
and  for  that  reason  without  eflect ;  but  such 
stipulation  may  be  eliminated  from  the 
contract  without  impairing  other  provision!! 
of  it.  Western  Union  Tel.  Co.  v.  Kans  t 
Pac.  R.  Co.,  4  Fed.  Rep.  284. 

4.  Contracts  grautiiiff  exclusive 
rights. — A  contract  ceding  to  a  telegraph 
company  the  exclusive  right  of  operating 
and  maintaining  its  lines  over  the  right  of 
way  of  a  railroad  company,  even  if  other- 
wise valid,  cannot  debar  the  state,  in  the 
exercise  of  the  right  of  eminent  domain, 
from  authorizing  the  establishment  of  an- 
other telegraph  line  over  the  same  right  of 
way.  New  Orleans,  M.  &»  T.  R.  Co.  v. 
Southern  &*  A.  Tel.  Co.,  S3  Ala.  21 1,  13  Am. 
Ry.  Rep.  135. 

A  railroad  company  already  having  a  tele- 
graph line  granted  to  a  telegraph  company 
the  privilege  of  placing  another  wire  on  the 
poles  "  for  general  telegraphic  correspond- 
ence," and  establishing  stations  at  points 
along  the  line  as  it  might  think  proper,  but 
reserving  to  the  railroad  company  all  local 
through  business,  "  it  being  understood  and 
agreed  between  the  parties  "  that  the  tele- 


graph company  should  be  entitled  only  to 
the  business  of  sending  such  messages  as 
might  be  received  at  any  of  its  stations 
destined  for  stations  on  other  connecting 
telegraph  lines,  or  such  messages  as  might 
be  received  from  other  lines.  Held,  that 
the  right  acquired  by  the  telegraph  com- 
pany in  the  business,  other  than  local  busi- 
ness, was  not  exclusive,  and  the  railroad 
company  was  not  precluded  from  placing 
another  wire  on  the  poles  either  for  its  own 
use  or  for  the  use  of  a  third  party.  Marietta 
6*  C.  R.  Co.  V.  Western  Union  Tel.  Co.,  10 
Am.  &*  Eng.  R.  Cas.  387,  38  Ohio  St.  24. 

By  the  terms  of  a  contract  between  a  tele- 
graph and  a  railroad  company,  approved 
by  the  governor  of  Georgia,  the  telegraph 
company  was  to  put  up  its  wires  along  the 
railroad,  and  allow  the  exclusive  use  of  one 
wire  to  the  railroad  company,  which  was  to 
pay  the  cost  of  putting  up  the  same,  said 
wire  to  run  into  all  the  offices  of  the  tele- 
graph  company.  Another  company  located 
the  road  under  a  lease  from  the  state  of 
Georgia,  the  state  paying  to  the  telegraph 
company  the  costs  incurred  for  the  wire  set 
apart  for  the  use  of  the  railroad.  Held, 
that  the  telegraph  company  owned  said  wire 
and  could  enjoin  the  second  railroad  com- 
pany from  using  it  in  a  manner  inconsistent 
with  the  contract.  Western  Union  Tel.  Co. 
V.  Western  &*  A.  R.  Co.,  8  Baxt.  (Tenn.)  S4. 

Since  the  Act  of  Congress  of  July  24, 1866 
(Rev.  St.  §  5263),  a  railroad  cannot  grant  to 
a  telegraph  company  the  sole  right  to  con- 
struct a  line  over  its  right  of  way  so  as  to 
exclude  other  telegraph  companies  which 
have  accepted  the  provisions  of  said  act  of 
Congress,  and  whose  lines  would  not  disturb 
or  materially  obstruct  the  lines  of  the  com- 
pany to  which  the  use  has  first  been  granted. 
Western  Union  Tel.  Co.  v.  American  Union 
Tel.  Co.,  9  Biss.  (U.  S.)  72.— FOLLOWING 
Pensacola  Tel.  Co,  v.  Western  Union  Tel. 
Co.,  96  U.  S.  19.— Followed  in  Western 
Union  Tel.  Co.  v.  National  Tel.  Co.,  22 
Blatchf.  (U.  S.)  108. 

A  telegraph  company  having  a  grant  from 
a  railroad  of  such  exclusive  right  to  con- 
struct a  line  along  the  right  of  way  is 
entitled  to  an  injunction  against  actual  in- 
terference with  its  line,  but  not  against  such 
interruption  of  its  business  as  results  from 
mere  competition  by  other  companies  con- 
structing rival  lines  along  said  railroad. 
West'ern  Union  Tel.  Co.  v.  American  Union 
Tel.  Co.,  9  Biss.  {U.  S.)  72. 


1030 


TELEGRAPH  AND  TELEPHONE   LINES,  6. 


P 


m 
m 


A  railroad  company  cannot  grant  to  a 
telegraph  company  the  exclusive  right  to 
establish  a  line  over  its  right  of  way. 
Western  Union  Tel.  Co.  v.  National  Tel. 
Co.,  22  Blatchf.  {[/.  S.)  io8.— Following 
Western  Union  Tel.  Co.  v.  American 
Union  Tel.  Co.,  9  Biss.  72;  Western  Union 
Tel.  Co.  V.  Burlington  &  S.  W.  R.  Co.,  1 1 
Fed.  Rep.  i. 

Under  the  laws  of  the  United  States  all 
railroads  are  made  post  roads;  therefore 
the  Act  of  Congress  of  July  24,  1866,  giving 
to  telegraph  companies  a  right  of  way  over 
all  post  roads,  is  paramount  over  any  agree- 
ment between  a  railroad  company  and  a 
telegraph  company  whereby  the  latter  is  to 
have  the  sole  use  of  the  railroad  line  for  its 
wires.  Western  Unio  >  '^el.  Co.  v.  Balti' 
more  &*  O.  Tel.  Co.,  19  ^ed.  Rep.  660. 

Where  a  railroad  company  agrees  with  a 
telegraph  company  using  its  right  of  way 
that  it  will  not  permit  the  construction  of 
other  telegraph  lines  thereon,  nor  afford 
facilities  to  other  telegraph  companies,  the 
telegraph  company  does  not  have  such  an 
exclusive  interest  in  the  railroad  right  of 
way  for  telegraph  purposes  as  to  entitle 
it  to  an  injunction  against  the  construc- 
tion of  another  line  on  such  right  of  way. 
Pacific  Postal  Tel.  Cable  Co.  v.  Western 
Union  Tel.  Co.,  50  Am.  &*  Eng.  R.  Cas. 
665,  50  Fed.  Rep,  493. 

A  railroad  company  has  no  authority  to 
grant  the  exclusive  right  to  construct  and 
maintain  a  telegraph  line  along  its  road  to 
a  single  company ;  a  contract  granting  such 
privilege  is  ultra  vires  and  void.  Pacific 
Postal  Tel.  Cable  Co.  v.  Western  Union  Tel. 
Co.,  50  Am.  Sf  Eng.  R.  Cas.  665,  50  Fed. 
Rep.  493. 

5. when  void  as  against  pub- 
lic policy. — The  state  of  Georgia,  being 
the  sole  owner  of  a  railroad,  entered  into  an 
agreement  with  a  telegraph  company  that 
the  latter  should  put  up  and  set  apart  a  wire 
for  the  exclusive  use  of  the  railroad,  equip 
it  with  instruments,  run  the  wire  into  all  the 
offices  along  the  railroad,  and  fix  the  terms 
upon  which  the  officers  of  the  road  might  re- 
ceive and  transmit  messages  from  connect- 
ing lines.  Held,  that  this  did  not  amount  to 
a  sale  of  the  wires  and  fixtures  to  the  state, 
but  only  to  a  contract  for  the  exclusive  use 
thereof  by  the  state.  Western  Union  Tel. 
Co.  V.  Western  &*  A.  R.  Co.,  91   U.  S.  283. 

And  a  lease  of  the  railroad  only  conferred 
upon  the  lessee  such  rights  as  the  state  had 


in  the  contract.     Western  Union  Tel.  Co.  v. 
Western  &*  A.  R.  Co..  91  U.  S.  283. 

A  contract  between  a  railroad  company 
and  a  telegraph  company  that  the  former 
will  allow  no  other  telegraph  company  to 
construct  a  line  along  its  road  is  not  inop- 
erative as  against  public  policy.  Western 
Union  Tel.  Co.  v.  Atlantic  **  P.  Tel.  Co., 
T  Biss.  (U.S.)  167. 

An  agreement  whereby  a  railroad  com- 
pany, "  so  far  as  it  legally  may,"  grants  to  9 
telegraph  company  an  exclusive  right  of 
way  along  its  line,  and  agrees  not  to  furnish 
to  any  competing  line  any  facilities  which  "  it 
may  lawfully  withhold,"  will  be  interpreted 
as  granting  only  such  an  easement  as  is 
necessary  for  the  legitimate  use  of  the  tele- 
graph company  in  constructing  and  operat- 
ing its  lines,  because  otherwise  it  would 
contravene  the  Act  of  Congress  of  July 
24.  1866  (14  U.  S.  St.  at  L.  221).  Western 
Union  Tel.  Co.  v.  National  Tel.  Co.,  23 
Blatchf.  ( U.  S.)  108. 

The  telegraph  company  will  be  protected, 
by  injunction  against  the  railroad  com- 
pany, in  the  possession  of  a  line  of  tele- 
graph which  it  has  constructed.  Western 
Union  Tel.  Co.  v.  National  Tel.  Co.,  22 
Blatchf.  (U.  S.)  108. 

A  provrision  in  a  contract  between  a  rail- 
road company  and  a  telegraph  company 
that  the  "  family,  private,  and  social  mes- 
sages of  the  executive  officers  of  the  rail- 
road shall  be  transmitted  without  charge  " 
is  immoral  and  against  public  policy,  and 
taints  the  whole  contract;  and  a  court  of 
equity  will  grant  no  relief  under  such  con- 
tract. Western  Union  Tel.  Co.  v.  Union 
Pac.  R.  Co.,  3  Fed.  Rep.  i,  i  McCrary  (U. 
S.)  418.— Following  Marshall  v.  Balti- 
more &  O.  R.  Co.,  16  How.  (U.  S.)  314; 
Atlantic  &  P.  Tel.  Co.  v.  Union  Pac.  R. 
Co.,  I  Fed.  Rep.  745. 

Such  contract  also  contained  the  stipula- 
tion that  the  business  of  the  railroad  com- 
pany as  well  as  "the  family,  private,  and 
social  messages  of  the  executive  officers" 
should  be  "transmitted  without  charge." 
The  railroad  company  did  not  disaffirm  the 
contract,  but  proceeded  upon  the  execution 
of  it  for  more  than  thirteen  years.  Held, 
that  ordinarily  such  a  contract  would  have 
become  irrevocable,  and  such  would  be  the 
rule  if  the  free  use  of  the  telegraph  had  been 
limited  to  the  officers  who  were  concerned 
in  making  the  contract ;  but  as  the  provi- 
sion extended  to  all  officers  of  the  company, 


TELEGRAPH   AND  TELEPHONE   LINES,  6,  7. 


1031 


Tnion  Tel.  Co.  v. 
S.  283. 

Iroad  company 
:hat  the  former 
ph  company  to 
>ad  is  not  inop- 
olicy.  Western 
&*  P.  Tel.  Co., 

I  railroad  com* 
ay,"  grants  to  9 
lusive  right  of 
is  not  to  furnish 
ilities which  "it 

be  interpreted 
easement  as  is 

use  of  the  tele- 
ing  and  operat- 
rwise  it  would 
tigress  of  July 
221).  Western 
\l  Tel.  Co.,    23 

ill  be  protected, 

railroad    com- 

a  line  of  tele- 

cted.     Western 

%l   Tel.  Co.,  22 

between  a  raii- 
;raph  company 
md  social  mes- 
ers  of  the  rail- 
ithout  charge  " 
>lic  policy,  and 
and  a  court  of 
inder  such  con- 
'.  Co.  V.  Union 
t  McCrary  (U. 
shall  V.  Balti- 
w.  (U.  S.)  314; 
Union  Pac.  R. 

led  the  stipula- 
!  railroad  com- 
y,  private,  and 
nitive  officers" 
thout  charge." 
)t  disaffirm  the 
fi  the  execution 
1  years.  Held, 
ict  would  have 
1  would  be  the 
;raph  had  been 
rere  concerned 
t  as  the  provi- 
>f  the  company, 


to  those  who  came  afterwards  as  well  as  to 
those  who  made  the  contract,  it  was  kept 
alive,  and  might  be  rescinded  after  the 
lapse  of  thirteen  years.  Western  Union 
Td.  Co.  V.  Kansas  Pac.  R.  Co.,  4  Fed.  Rep. 
284.  See  also  Western  Union  Tel.  Co.  v. 
Union  Pac.  R.  Co.,  3  Fed.  Rep.  i,  i  McCrary 
(C;.  5.)4i8. 

And  such  rescission  would  not  authorize 
either  company  to  appropriate  the  property 
of  the  other  acquired  while  the  contract  was 
ill  force,  without  paying  for  the  same. 
Western  Union  Tel.  Co.  v.  Kansas  Pac.  R. 
Co.,  4  Fed.  Rep.  284. 

A  railroad  company  granted  permission 
to  a  telegraph  company  to  maintain  a  line 
along  the  railway  as  long  as  the  grantee  ex- 
isted as  a  telegraph  company.  The  corpo- 
raic  existence  of  the  telegraph  company 
was  limited  to  a  certain  number  of  years. 
J/e/d,  that  the  contract  expired  with  the  ex- 
piration of  the  term  for  which  the  telegraph 
company  was  chartered,  and  the  fact  that  it 
was  reincorporated  under  another  name 
would  not  afl''  X  the  result.  Western  Union 
Tel.  Co.  v.  Baltimore  &*  O.  R.  Co.,  20  Fed. 
Rep.  572. 

A  contract  between  a  railroad  company 
and  a  telegraph  company  whereby  each  is 
to  contribute  in  establishing  a  telegraph 
line  along  the  railroad,  the  telegraph  com- 
pany to  operate  the  line  and  to  have  the 
exclusive  right  for  telegraphic  purposes,  so 
far  as  the  railroad  company  can  legally  grant 
it.  the  latter  agreeing  to  discourage  com- 
petition, is  not  contrary  to  public  policy  as 
creating  a  monopoly  by  giving  the  telegraph 
company  the  exclusive  use  of  the  right 
of  way,  and  as  discouraging  competition; 
and  a  court  of  equity  will  enjoin  the  placing 
or  maintaining  of  other  wires  upon  the  poles 
under  contract  with  the  railroad  company. 
Western  Union  Tel  Co.  v.  Chicago  <S-  P.  R. 
Co.,  86  ///.  246,  17  Am.  Ry.  Rep.  407. 

The  right  of  a  telegraph  company  to 
maintain  its  wires  along  a  railroad  being 
dependent  upon  the  true  construction  of  an 
agreement,  the  railroad  company  will  be  re- 
strained from  removing  the  wires  until 
after  the  right  is  adjudicated.  Atlantic  &» 
O.  Tel.  Co.  V.  Philad'elphia,  G.  <S-  N.  R.  Co., 
8  Phila.  (Pa.)  246. 

6. or  as  In  restraint  of  trade. 

—Contracts  between  railroad  and  telegraph 
companies,  vesting  in  the  latter  the  exclu- 
sive right  to  use  or  occupy  the  right  of  way 
of  the  former  for  the  erection  of  telegraph 


poles,  and  other  purposes  in  connection  with 
their  business  of  transmitting  messages,  etc., 
by  telegraph,  are  void  as  being  in  general 
restraint  of  trade,  and  as  tending  to  create 
monopolies,  thus  being  against  public  pol- 
icy. Western  Union  Tel.  Co.  v.  American 
Union  Tel.  Co.,  65  Ga.  160. 

Such  a  contract  is  void  as  being  in  re- 
straint of  trade,  contrary  to  public  policy, 
and  in  violation  of  the  Act  of  Congress  of 
July  24,  1866  (14  St.  221).  Western  Union 
Tel.  Co.  V.  BurF  on  &*  S.  W.  R.  Co.,  3 
McCrary  {U.  S.,  .30,  11  Fed.  Rep.  1. — 
Followed  in  Western  Union  Tel.  Co.  v. 
National  Tel.  Co.,  22  Blaichf.  (U.  S.)  io8. 

After  a  railroad  company  had  entered 
into  an  agreement  with  a  telegraph  com- 
pany for  the  exclusive  use  of  the  right  to 
construct  and  operate  a  telegraph  line  over 
the  railroad,  the  property  was  sold  in  a  fore- 
closure, and  the  purchasing  company  leased 
it  to  still  another  company,  which  gave  to 
still  another  company  running  powers  over 
a  part  of  the  road,  and  consented  to  the  erec- 
tion of  another  telegraph  over  the  same 
road,  //eld:  (i)  that  the  original  agreement 
was  binding  on  the  present  owners  of  the 
road  ;  (2)  that  the  contract  with  the  telegraph 
company  was  not  void  as  against  public  pol- 
icy, nor  as  being  a  contract  in  restraint  of 
trade.  Canadian  Pac.  R.  Co.  v.  Western 
Union  Tel.  Co.,  17  Can.  Sup.  Ct.  151. 

7.  Liability  for  delay  or  non- 
delivery of  telegrams.*— A  telegraph 
company  was  formed  by  the  officers  of  a 
railroad,  the  railroad  company  furnishing 
the  entire  capital  stock.  Plaintiff  recovered 
a  judgment  against  the  telegraph  company 
for  a  breach  of  contract.  The  property  of 
the  telegraph  company  was  sold,  the  entire 
consideration  going  to  the  railroad  com- 
pany, thus  leaving  the  telegraph  comp  .  v 
insolvent.  Held,  that  the  railroad  company 
held  the  price  of  the  telegraph  property  in 
trust,  and  that  payment  of  plaintiff's  judg- 
ment might  be  enforced  in  a  court  of 
equity.  Baltimore  &*  0.  Tel.  Co.  v.  Inter- 
state Tel  Co.,  54  Fed.  Rep.  50.  8  U.  S.  App. 
340,  4   C.  C.  A.    184;   affirming   51    Fed. 

Rep.  49- 

The  institution  of  suit  is  full  compliance 
with  a  stipulation  on  a  telegraph  blank  that 
any  claim  for  damages  shall  be  presented 


*  Law  of  the  transmission  of  telegrams  and 
the  liability  of  telegraph  companies,  see  note,  la 
Am.  &  Eng.  R.  Cas.  104, 


1032 


TELEGRAPH    AND  TELEPHONE   LINES,  810. 


within  sixty  days.  Gulf,  C.  &*  S.  F.  R.  Co. 
V.  Ltvy,  (Tex.)  19  Am.  &*  Eng.  R.  Cas.  151. 

8.  Buie  as  to  repeatiugr  messages. 

—  The  failure  of  one  who  pays  a  telegraph 
company  for  its  transmission  to  have  a  mes- 
sage repeated  will  not  exempt  the  com- 
pany from  damages  resulting  from  its  fail- 
ure through  negligence  to  have  the  message 
delivered.  And  this,  though  the  printed 
matter  on  the  blank  furnished  by  the  com- 
pany, and  on  which  the  message  was  writ- 
ten, contains  a  stipulation  that  the  company 
will  only  be  liable  for  the  amount  received 
for  sending  the  message,  if  delay  should  oc- 
cur in  its  delivery,  in  case  the  message  is 
repeated.  The  rule  is  otherwise  when  the 
action  against  the  company  is  for  eiror 
committed  in  transmitting  the  message. 
Gulf,  C.  &-  S.  F.  R.  Co.  V.  Wilson,  69  Tex. 
739.  7  S.  W.  Rep.  653. 

9.  Damages  recoverable,  gener- 
ally.—  A  railway  company  which  owned 
and  operated  for  hire  a  telegraph  Une  re- 
ceived a  message  on  Sunday  to  be  transmit- 
ted to  one  living  at  a  place  where  it  main- 
tained a  telegraph  office  on  its  line.  The 
message  announced  the  death  of  the  send- 
er's wife  and  child,  and  was  directed  to  his 
father,  requesting  his  presence.  Held,  that 
if  there  was  wilful  or  gross  negligence  in 
failing  to  deliver  the  message,  the  sender 
was  entitled  to  recover  against  the  com- 
pany, over  and  above  such  sum  as  he  paid 
for  the  transmission  of  the  message,  such  an 
amount  of  exemplary  damages  as  a  jury 
might  award  under  proper  instructions. 
When  nominal  damage  is  shown  in  such  a 
case,  it  is  for  the  jury  to  nieasure  the  exem- 
plary damage,  and  their  verdict,  if  excessive, 
will  be  set  aside.  Gulf,  C.  5*  S.  F.  R. 
Co.  v.  Levy,  12  Am.  &-  Eng.  R.  Cas.  90,  96, 
59  Tex.  542,  46  Am.  Rep.  269.— Quoted  im 
Western  Union  Tel.  Co.  v.  Wood,  57  Fed. 
Rep.  471. 

A  telegraph  company  which  is  guilty  of 
gross  negligence  or  total  failure  in  deliver- 
ing a  message  of  a  strictly  private  nature, 
announcing  the  death  of  a  relative  of  the 
sender,  and  desiring  aid  and  the  like,  cannot 
escape  with  mere  nominal  damages  on  ac- 
count of  the  want  of  strict  commercial 
value  in  the  message.  Gulf,  C.  &•  S.  F.  R, 
Co.  V.  Levy,  12  Am.  &*  Eng.  R.  Cas.  90,  96, 
59  Tex.  542,  46  Am.  Rep.  269. —  QUOTING 
Courtenay  v.  Earle,  10  C.  B.  83. 

In  actions  for  failure  to  deliver  a  telegram, 
the  rules  governing  are  such  u  are  applica- 


ble in  cases  where  a  contract  is  made  under 
special  circumstances  known  to  the  con- 
tracting parties,  and  from  which  special 
damage  will  result  if  the  contract  is  not 
performed,  and  in  such  cases  the  parties  are 
presumed  to  have  contracted  with  reference 
to  such  circumstances  and  the  damages 
which  naturally  flow  from  a  non-perform- 
ance of  such  contract.  Gulf,  C.  &•  S.  F.  R. 
Co.  V.  Levy,  \2  Am.  &•  Eng.  K.  Cas. 90.  96,  59 
Tex.  542, 46  Am.  Rep.  269.— Not  followed 
IN  Crawson  v.  Western  Union  Tel.  Co.,  47 
Fed.  Rep.  544. 

A  father  sued  a  railway  company  which 
owned  and  operated  a  telegraph  line  for 
negligence  in  failing  to  transmit  a  message 
sent  to  him  by  his  son,  informing  him  of 
the  sudden  ',eath  of  the  son's  wife  and 
child.  Da  ..  ^ge  was  claimed  on  account  of 
mental  anguish  caused  by  his  consequent 
inability  to  attend  the  funeral  and  minister 
to  his  son's  comfort  and  necessities.  Held, 
that  the  contract  between  the  son  and  the 
company  cannot  be  made  the  basis  of  a 
recovery  by  the  father.  The  action  could 
only  be  sustained,  under  the  facts,  by  show- 
ing that  plaintiff  was  injured  in  his  person, 
property,  or  reputation  by  the  negligence  of 
the  company.  Gulf,  C.  <S-  .S".  F.  R.  Co.  v. 
Levy,  59  Tex.  563. 

Negligence  in  a  telegraph  company,  with- 
out regard  to  the  degree  of  such  negligence, 
will  render  such  company  liable  for  actual 
damage  resulting  from  its  failure  to  deliver 
a  telegraph  message.  Gulf.  C.  &^  S.  F.  R. 
Co.  V.  J!'/lson.  69  Tex.  739,  7  S.  JV.  Rep  653. 

10.  Dama^'es  for  inoiifal  angiiisli. 
—  A  telegraph  company  is  liable  in  dam- 
ages to  the  addressee  for  negligent  failure 
to  send  and  deliver  a  telegram  addressed  by 
a  mother  to  her  son,  informing  him  of  his 
father's  dying  condition,  and  summoning 
the  son  to  the  father's  bedside,  although 
the  mother  paid  the  toll  for  sending  the 
telegram  and  the  son,  without  receiving  it, 
visited  his  father  two  days  later,  and  reached 
him  thirty-six  hours  before  his  death. 
Newport  News  &*  M.  V.  R.  Co.  v.  Griffin,  92 
Tenn.  694,  22  S.  W.  Rep.  737.— Following 
Wadsworth  v.  Western  Union  Tel.  Co.,  86 
Tenn.  695. 

Damages  should  be  awarded  in  stich  sum 
as  will  reasonably  compensate  for  the  grief, 
disappointment,  or  other  injury  to  the  feel- 
ings of  the  addressee  caused  by  the  com- 
pany's default,  taking  into  consideration,  in 
mitigatioik  of  damages,  the  fact  that  the 


h 

.  is  made  under 

n  to  the  con- 

wliicli   special 

:ontract  is  not 

tiie  parties  are 

with  reference 

the  damages 

I  non-perform- 

",  C.  &^  S.  F.  Ji. 

V.  Cas.  90.  96,  59 

Jot  followed 

jn  Tel.  Co.,  47 

ompany  which 
graph  line  for 
sin  it  a  message 
running  him  of 
oil's   wife   and 

on  account  of 
lis  consequent 
il  and  minister 
essities.  Held, 
le  son  and  the 
the  basis  of  a 
e  action  could 
facts,  by  shoiv- 

iu  his  person, 
'  negligence  of 
5".  F.  Ji.  Co.  V. 

;ompany,  with- 
icli  negligence, 
able  for  actual 
iiure  to  deliver 
C.  &*  S.  F.  R. 
'.  IV.  Rep  653. 
tal  aii(;iiis1i. 
liable  in  dam- 
!S;Iigent  failure 
n  addressed  by 
ing  him  of  his 
id  summoning 
Iside.  although 
r  sending  the 
It  receiving  it, 
5r,  and  reached 
e  his  death. 
0.  V.  Griffin,  92 
—Following 
m  Tel.  Co.,  86 

!d  in  such  sum 
e  for  the  grief, 
iiy  to  the  feel- 
1  by  the  com- 
nsideration.  in 
fact  that  the 


TELEGRAPH   AND  TELEPHONE   LINES,  11,13. 


1033 


son  reached  the  father's  bedside  before  his 
death.  N*wport  News  &*  M,  V.  R.  Co.  v. 
Griffin,  92  Tenn.  694,  22  5.  W.  Rep.  737. 

A  party  is  not  entitled  to  recover  damages 
for  an  injury  to  his  feelings,  or  for  mental 
anguish,  occasioned  by  the  non-delivery  of 
a  telegram,  unless  the  non-delivery  was  oc- 
casioned by  gross  negligence.  Gulf,  C.  &* 
S.  F.  If.  Co.  V.  Levy,  ( Tex.)  19  Am.  &-  Eng. 
R.  Cas.  151.— Reviewing  So  Relle  v.  West- 
ern Union  Tel.  Co.,  55  Tex.  310. 

Plaintif!'s  wife  and  child  having  died,  he 
sent  a  telegram  to  his  father  requesting  aid. 
The  telegram  was  transmitted  correctly  and 
promptly  to  the  town  where  the  plaintiff's 
father  lived,  and  three  attempts  were  made 
in  the  course  of  the  day  to  deliver  it  at  his 
store,  which  was,  however,  found  closed. 
No  inquiry  was  made  for  him  by  any  one. 
Held,  in  suit  brought  by  plaintiff  for  the 
mental  anguish  caused  him  by  reason  of  the 
failure  of  his  father  to  come  to  him,  that 
there  was  no  evidence  of  gross  negligence, 
and  therefore  no  right  to  recover.  Gulf,  C. 
6-  S.  F.  R.  Co.  V.  Levy,  (Tex.)  19  Am.  6* 
Eng.  R.  Cas.  151. 

Action  against  a  telegraph  company  for 
delay  in  transmitting  the  message  "My 
child  is  very  sick;  come  at  once  "addressed 
to  a  physician;  by  reason  of  the  delay  the 
physician  came  too  late,  and  the  child  died, 
after  much  suffering.  The  testimony  showed 
a  condition  of  mental  distress  from  the 
delay  of  the  doctor  to  visit  the  child,  i.  e. 
mental  anguish  produced  as  the  proximate 
result  of  the  failure  of  the  telegraph  com- 
pany to  deliver  the  message  according  to 
the  terms  of  the  contract  of  sending  it. 
Under  the  facts  it  was  proper  to  instruct 
the  jury  that  the  defendant  would  be  liable 
to  plaintiff  for  its  failure  to  use  reasonable 
diligence  to  deliver  the  dispatch,  in  such 
sum  as  the  jury  might  believe  he  should  re- 
ceive as  compensation  for  mental  suffering 
caused  him  by  such  failure.  Gulf,  C.  &*  S. 
F.  R.  Co.  V.  Richardson,  79  Tex.  649,  15 
S.  JV.  Rep.  689.  —  Reviewing  Stuart  v. 
Western  Union  Tel.  Co..  66  Tex.  580. 

11.  Decisions  under  tlie  Engiisli 
"Telegraph  Acts."  — Where  a  railway 
company,  under  an  agreement  by  which  it 
leases  all  its  works  to  another  company, 
parts  with  the  beneficial  interest  in  its  tele- 
graph line,  it  is  not  entitled  to  compensa- 
tion under  the  Telegraph  Acts,  31  &  32 
Vict.  c.  no,  Reg.  v.  Coleridge.  45  L,  f.  Q. 
B.  D.  649,  34  L.  T.  753- 


A  railway  company  which,  by  agreement 
with  a  telegraph  company  placing  its  appa- 
ratus on  the  railway  line,  has  a  right  to  use 
one  wire  solely  for  railway  messages,  has  no 
interest  in  the  telegraph  which  will  entitle 
it  to  require  the  postmaster-general  to  pur- 
chase it  under  the  Telegraph  Acts,  1868  and 
1 869.  Cffwes  &•  JV.  R.  Co.  v.  Board  of  Trade, 
43  L.  f.  Q.  B.  242.  22  W.  R.  807. 

Where  an  arbitrator,  in  determining  the 
amount  to  be  paid  to  a  railway  company  by 
the  postmaster-general  under  the  Telegraph 
Act,  1868,  §  9,  subsec.  6,  has  awarded  a 
lump  sum  and  has  made  no  allusion  in  his 
award  to  any  yearly  rent,  the  railway  com- 
pany is  precluded  from  any  further  compen- 
sation for  extra  poles  or  wires  which  the 
postmaster-general  may  in  the  future  re- 
quire to  be  erected.  R^.  v.  Metropolitan 
R.  Co.,  50  L.T.d;  affirming  48  L.  T.  367. 

12.  Teleplione  companies.*  —  As 
against  a  street  railroad,  a  telephone  com- 
pany duly  organized  has  the  right  to  erect 
its  poles  and  string  its  wires  in  the  street 
through  which  the  railroad  runs;  and  an 
injunction  will  lie  in  its  favor  to  restrain 
any  interference  with  or  destruction  of  such 
right  producing  irreparable  injury.  Hudson 
River  Telep.  Co.  v.  Watervliet  T.  &*  R.  Co.. 
29  N.  V.  S.  R.  22,  8  M.  Y.  Supp.  497. 

A  temporary  injunction  will  be  granted, 
under  N.  Y.  Code  Civ.  Proc.  §§  603.  604, 
subd.  I,  on  a  complaint  alleging  that  the 
defendant  electric-railway  company  is  about 
to  erect  poles  and  string  wires  for  the  pur- 
pose of  propelling  its  cars  by  electricity,  on 
lines  in  close  proximity  to  and  parallel  with 
the  plaintiff  telephone  company's  wire,  and 
upon  its  being  shown  that  powerful  currents 
of  induction  and  conduction  will  thereby  be 
produced  which  will  interfere  with  and 
prevent  the  carrying  on  of  plaintiff's  busi- 
ness. Hudson  River  TeUp.  Co.  v.  Watervliet 
T.  <S-  R.  Co.,  29  N.   Y.  m.  R.  22,  8  N.   Y. 

Supp.  497. 

It  is  the  duty  of  a  telephone  company 
using  a  public  highway  for  its  poles  and 
wires  so  to  construct  and  maintain  its  line 
as  not  to  incommode  the  public  use  of  the 
highway  for  purposes  of  travel  or  transpor- 
tation, whether  by  ordinary  vehicles,  horse 
railways,  or  electric  railways,  lawfully  used 
on  the  same.  Central  Pa.  Telep.  Co.  v. 
Wilkes-Barre  <&*  W.  S.  R.  Co.,  i  Pa. 
Dist.  628 


*See  also  Electric  Railways. 


■:u' 


1034 


TELLTALES— TENDER,  1-4. 


TELLTALES. 
Duty  to  employes  as  regards,  see  EmployAs, 
Injuries  to,  58,  59. 


••:  !t:i 


TENANCY. 
At  will,  see  Lkasks,  etc.,  11. 
From  year  to  year,  see  Leases,  etc..  10. 


TENANTS  IN  COMMON. 

As  parties  to  condemnation  proceedings,  see 
Eminknt  Domain,  271. 

Right  of,  to  appeal  in  condemnation  pro- 
ceedings, see  Eminent  Domain,  878. 

When  entitled  to  land  damages,  see  Eminent 
Domain,  420. 


TENDER. 

Necessity  of,  before  suit,  see  Contracts,  93* 
Of  amount  due  before  applying  for  injunc- 
tion, see  Taxation,  344. 

—  certificate  before  suing  on   stock   sub* 

scription,  see  Subscriptions  to    Stock, 
81. 

—  charges  claimed  by  carrier  before  suing  in 

trover,  see  Trover,  12. 

—  compensation   for  land   condemned,  see 

Eminent  Domain,  384-389. 

taken,  effect  of,  on  right  to|costs, 

see  Eminent  Domain,  771. 

—  debenture  for  acceptance  before  suit,  see 

Dkbentureb,  14. 

—  debentures  for  freight  charges,  see  De- 

bentures, 9. 

—  fare,  how  pleaded,  see  Ejection  of  Passen- 

r.ERS,  83. 

to  prevent  ejection  of  passenger,  see 

Ejection  of  Passengers,  47-51. 

—  government  notes  in  payment  of  fare,  see 

Tickkts  and  Fares,  117. 

—  taxes,  see  Taxation,  291. 

1.  When  proper. —  An  action  to  re- 
cover the  value  of  goods  wrongfully  deliv- 
ered by  a  carrier  is  not  an  action  to  recover 
"  damages  for  a  casual  or  involuntary  injury 
to  property,"  and  a  tender  is  not  warranted 
in  such  action  by  N.  Y.  Code  Civ.  Pro. 
§  731.  Clement  v.  New  York  C.  &>  H.  K.  R. 
Co.,  30  A'.  Y,  S.  R.  713,  9  N.  Y.  Supfi.  601, 
56  Hun  643. 

2.  What  is  a  valid  tender.— Where 
defendant  offers  to  pay  under  protest  the 
sum  claimed,  this  is  a  good  tender.  Scott 
V.  Uxbridge  <S*  R.  R.  Co..  L.  R.  i  C.  P. 
S96,  12  fur.  N.  S.  602,  35  L.  J.  C.  P.  293, 
14  IV.  R.  893. 

Goods  were  shipped  to  go  part  of  the  way 
by  ocean  steamer,  and  thence  over  a  con- 


necting railroad  to  the  place  of  destination. 
On  their  arrival  it  appeared  that  a  portion 
of  the  goods  had  been  abstracted,  and  the 
railroad  tendered  their  value,  but  this  was 
refused,  the  consignees  claiming  also  dam- 
age to  the  goods  during  the  water  voyage, 
which  was  contested.  Held,  that  the  items 
of  damage  and  for  loss  of  goods  were  sev- 
erable, and  the  tender  was  proper  and  should 
have  been  accepted.  East  Tenn.,  V.  &•  G. 
R.  Co.  V.  Wright,  76  Ga.  532. 

"  An  offer  in  writing  to  pay  a  particular 
sum  of  money  is  equivalent  to  the  actual 
tender  of  the  money  "  (Iowa  Code,  §  2105). 
But  the  statute  simply  dispenses  with  the 
actual  production  of  the  money.  In  other 
respects  the  rule  of  the  common  law  pre- 
vails, which  requires  that  a  tender,  to  be 
good,  must  be  unconditional.  And  so,  where 
defendant  made  a  written  offer,  in  effect : 
"  I  am  willing  to  pay  you  the  named  sum  to 
avoid  litigation ;  it  is  not  due  you,  but  I  am 
willing  to  pay,"  it  is  not  sufficient  to  make 
the  offer  equivalent  to  a  tender.  Kuhns  v. 
Chicago,  M.  &*St.  P.  R.  Co.,  65  /owa  528,  22 
A^.  PV.  Rep.  661. 

In  tendering  back  money  for  the  purpose 
of  rescinding  the  arrangement  under  which 
it  had  been  received,  it  is  immaterial  whether 
the  bills  tendered  back  are  the  identical  ones 
received  or  not,  since  in  law  one  dollar  in 
money  is  the  equivalent  of  any  other  dollar. 
Michigan  C.  R.  Co.  v.  Dunham,  30  Mich.  \  28. 

3.  Proper  time  or  stage  of  the  ac- 
tion.— Defendant  received  from  plaintiff  a 
certain  amount  of  money  to  be  used  in  the 
promotion  of  a  railroad,  if  the  franchise  of 
the  company  should  be  confirmed,  and  if  not 
to  be  returned  to  plaintiff  on  demand.  In 
an  action  to  recover  the  money  the  defense 
was  that  the  money  was  in  payment  of  a 
subscription  to  the  bonds  of  the  company 
and  was  to  go  to  a  certain  promoter  of  the 
enterprise,  who  was  to  furnish  the  bonds.  It 
appeared  that  a  certificate  of  a  certain  trust 
company  had  been  sent  to  plaintiff,  agreeing 
to  deliver  the  bonds  to  him;  but  it  did  not 
appear  that  the  certificate  had  any  value. 
Held,  that  an  offer  to  return  the  certificate 
made  at  the  trial  for  the  first  time  was  suffi- 
cient. Lmiis  V.  Andrews,  6  N.  Y.  Supp.  247, 
24  A':  Y.  S.  R.  looi ;  affirmed  in  127  N.  Y. 
673,  3  Silv.  App.  481, 38  N.  Y.  S.  R.  808,  27 
A'".  E.  Rep.  1044. 

4.  Tlie  necessary  amount.— A  com- 
pany, before  suit  brought,  tendered  to  a  party 
a  sum  less  than  his  demand,  in  full  satis- 


ill' 


TENDER,  5-7. 


1035 


)f  destination, 
that  a  portion 
acted,  and  the 
but  this  was 
iiig  also  dam- 
water  voyage, 
that  the  items 
jods  were  sev- 
serand  siiould 
inn.,  V,  &*  G. 

\y  a  particular 
to  the  actual 
Code,  §  2105). 
nses  with  the 
ley.  In  other 
mon  law  pre- 
tender, to  be 
And  so,  where 
ffer,  in  effect: 
named  sum  to 
you,  but  I  am 
cient  to  make 
ier.  Kuhns  v. 
5  Iowa  528,  22 

)r  the  purpose 
t  under  wliich 
iterial  whether 
identical  ones 
one  dollar  in 
jr  other  dollar. 
1, 30 Miih.  1 28. 
re  of  the  uc- 
'om  plaintiff  a 
be  used  in  the 
«  franchise  of 
ned,  and  if  not 
1  demand.  In 
ey  the  defense 
payment  of  a 
the  company 
omoter  of  the 
I  the  bonds.  It 
a  certain  trust 
intiff,  agreeing 
but  it  did  not 
ad  any  value, 
the  certificate 
time  was  sufli- 
Y.  Supp.  nj, 
I  in  127  A^.  y. 
.  S.  Jt.  808,  27 

mt. — A  corn- 
ered to  a  party 
,  in  full  satis- 


faction, which  was  refused,  and  upon  suit 
brought  before  a  justice  of  the  peace  de- 
posited the  tender  with  the  justice,  to  be  paid 
to  pliiintiff  on  condition  he  accept  it  in  full, 
whicii  was  again  refused,  and  atrial  had,  re- 
sulting in  a  judgment  for  a  larger  sum  than 
that  tendered.  After  the  judgment,  the  jus- 
tice, on  the  advice  of  plaintiff's  attorney,  ap- 
plied part  of  the  deposit  upon  the  costs,  and 
paid  the  residue  to  plaintiff  in  part  payment 
of  the  judgment,  the  latter  not  accepting  the 
■ame  in  full  satisfaction.  HM,  that  a  bill 
by  the  company  to  enjoin  the  collection  of 
the  balance  of  the  judgment  was  properly 
dismissed.  It  was  not  held  to  be  impor- 
tant to  consider  the  question  of  authority, 
or  want  of  authority,  in  the  justice  to  make 
such  application  of  the  tender.  Chicago  &* 
E.  I,  R.  Co.  V.  Kamman,  1 19  ///.  362,  10  A^. 
E.  Rep.  217  ;  affirming  19  ///.  App.  640. 

If  a  party  tenders  less  than  is  due  he  does 
so  at  his  peril,  though  he  may  honestly  be- 
lieve that  the  amount  tendered  was  all  that 
plaintiff  was  entitled  to.  So  held,  where  a 
company  defended  a  suit  for  killing  a  colt, 
on  the  ground  that  it  had  in  good  faith  ten- 
dered what  was  believed  to  be  the  value  of 
the  colt,  as  far  as  could  be  ascertained  by 
due  inquiries  in  the  neighborhood,  but  where 
the  tender  was  less  than  the  verdict  of  the 
jury.  Helphrey  v.  Chicago  &*  R.  I.  R.  Co., 
29  Iowa  480.— Following  Brandt  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  26  Iowa  114. 

And  such  tender  will  not  prevent  the 
owner  from  recovering  double  the  value  of 
the  stock  under  the  statute.  Brandt  v.  Chi- 
cago, R.  I.  &*  P.  R.  Co.,  26  Towa  114.— Fol- 
lowed IN  Helphrey  v.  Chicago  &  R.  I.  R. 
Co.,  29  Iowa  480. 

A  tender  to  be  good  must  be  without  con- 
ditions; and  an  offer  of  a  sufficient  sum  in 
settlement  of  one  claim  is  not  a  tender  when 
it  is  made  conditional  upon  the  acceptance 
of  an  offer  of  an  insufficient  amount  in 
settlement  of  another  claim.  So  held,  where 
a  railroad  company  was  sued  for  injuries  to 
a  mare  and  for  killing  a  colt,  and  defended 
on  the  ground  that  it  had  tendered  plaintiff 
I50  for  the  injury  to  the  mare  and  $125  for 
killing  the  colt,  but  where  the  jury  found 
that  the  colt  was  worth  $1 25  and  the  injury  to 
the  mare  was  $70.  Shuck  v.  Chicago,  R.  I.  &* 
P.  R.  Co.,  73  Towa,  333,  35  A^.  IV.  Rep.  429. 

5.  KeepiiiiT  the  tender  grood. — 
Where  certain  submerged  lands  are  granted 
by  the  state  to  a  company  in  fee  upon  pay- 
ment of  a  certain  sum  to  the  city  within  the 


limits  of  which  the  lands  are  situated,  and 
tho  city  refuses  to  receive  the  money  upon 
its  tender,  failure  to  keep  the  tender  good 
deprives  the  company  of  all  rights  acquired 
thereunder.  Illinois  v.  Illinois  C.  R.  Co.,  33 
Fed.  Rep.  730. 

O.  Payment  into  court.— A  suit  by  a 
state  against  a  company,  to  recover  taxes, 
was  pending  in  the  supreme  court  of  the 
Uni.ed  States,  and  the  company  tendered 
the  amount  of  taxes,  penalties,  interest,  and 
costs,  which  being  refused,  it  deposited  in 
bank.  Held,  on  this  being  shown  to  the 
court,  that  tbe  writ  of  error  must  be  dis- 
missed, under  Cal.  Civil  Code,  §  1500,  pro- 
viding that  an  obligation  to  pay  money  is 
extinguished  by  an  offer  to  pay,  if  it  be  fol- 
lowed by  immediate  deposit  in  a  reputable 
bank  of  the  amount,  in  the  name  of  the 
creditor.  California  v.  San  Pablo  &*  T.  R. 
Co.,  149  il.  S.  308,  13  Sufi.  a.  Rep.  876.— 
Following  San  Mateo  County  v.  Southern 
Pac.  R  Co.,  116  U.  S.  138,  6  Sup.  Ct. 
Rep.  317. 

Under  N.  Y.  Code  Civ.  Pro.  §  731,  in 
reference  to  tenders,  in  case  of  the  refusal 
to  accept  when  the  money  is  brought  into 
court,  it  belongs  to  plaintiff,  and  his  title 
thereto  cannot  be  disputed  whatever  may 
be  the  result  of  the  action.  The  plaintiff 
in  proceeding  after  the  tender  and  deposit 
simply  runs  the  risk  of  paying  defendant's 
costs,  if  the  recovery  is  less  than  the  amount 
tendered,  while  defendant  takes  the  risk  of 
losing  the  amount  tendered  in  the  event 
that  he  succeeds  in  the  action.  Taylor  v. 
Brooklyn  El.  R.  Co.,  119  A'.  Y.  561,  23  N.  E. 
Rep.  1 106,  30  A^.  Y.  S.  R.  \\\;  affirming  18 
Civ.  Pro.  72,  27  A':  Y.  S.  R.  44,  7  A^.  Y. 
Supp.  625. 

7.  Effect  of  tender  or  payment 
Into  court.  —  Payment  into  court  by  a 
company,  sued  for  iniuries  to  a  passenger, 
of  a  sum  of  money  as  damages,  admits  the 
contract  to  carry  and  the  breach  of  the  duty 
founded  upon  that  contract,  so  as  to  dis- 
pense with  proof  of  negligence.  Perren  v. 
Monmouthshire  R.  &*  C.  Co.,  11  C.  B.  855, 
ijjur.  S32,  22  L.J.  C.  P.  162. 

Payment  of  money  into  court  in  an  action 
of  tort,  where  the  declaration  is  general  and 
unspecific,  admits  a  cause  of  action  but  not 
the  particular  cause  of  action  sued  for ;  but 
if  the  declaration  is  specific,  the  payment 
admits  the  alleged  cause  of  action.  Perrtn 
V.  Monmouthshire  R.  &*  C.  Co.,  11  C.  B.  85J, 
17 /«r.  532,  23  L.J.  C.  P.  162. 


1036 


TENDER  OK   ENGINE— TERMINATION. 


t'e  1   1 


^'•: 


A  company  is  not  entitled  to  distrain  for 
tolls,  wliere  It  demands  a  sum  in  grosst 
made  up  of  two  sums,  one  due  for  tolls,  and 
the  utiicr  not  so  due,  and  tlie  party  tenders 
tiic  amount  due  for  tolls  as  being  all  tliat  is 
due;  hut  such  tender  does  not  preclude  the 
company  from  recovering  the  toll.  Fi'M 
V.  Newport,  A.  <S-  H.  K.  Co.,  3  N.  &•  N.  409 
27  Z,./.  Ex.  396. 

Plaintiff  while  away  from  home  received 
a  telegram  informing  him  of  the  sickness  of 
his  father,  and  paid  to  defendant  company  a 
certain  amount  to  convey  him  by  a  special 
train  to  a  certain  point  on  its  road  where  he 
could  make  connections  with  another  road  ; 
but  he  afterwards  refused  to  take  the  train 
unless  the  company  would  guarantee  that  it 
would  deliver  him  at  the  place  in  time  to 
make  the  connection  with  the  train  on  the 
other  road,  whereupon  the  company  tendered 
him  back  the  amount  paid  by  him  which  he 
declined.  He/ii,  that  he  could  not  recover 
interest  on  the  sum  piiid,  nor  costs.  Wilcox 
v.  Richmond  &*  D.  R.  Co.,  52  Fed.  Rep. 
264.  8  U.  S.  App.  1 18,  3  C.  C.  A.  73. 

Tender  of  the  sum  assessed  and  awarded 
to  a  landowner  in  a  proceeding  to  condemn 
a  right  of  way  duly  made  and  continued, 
but  refused,  is  the  equivalent  of  actual  pay- 
ment of  the  award,  in  its  effect  on  the  right 
of  the  company  to  enter  upon  the  land  and 
construct  its  road.  Oliver  v.  Union  Point 
Sf  VV.  P.  R.  Co.,  39  Atn.  &•  Eng.  R.  Cas. 
107,  83  Gil.  257,  9  S.  E.  Rep.  1086. 

A  tender  admits  the  liability  or  indebted- 
ness to  the  amount  of  the  sum  tendered. 
Frink  v.  Coe,  4  Greene  {Iowa)  555, 

Evidence  that  a  tender  was  made  under  a 
mistaken  belief,  by  the  party  making  it,  that 
the  sum  tendered  was  due  is  admissible  to 
rebut  the  inference  that  a  debt  was  thereby 
admitted.  Ashuelot  R,  Co.  v.  Cheshire  R, 
Co.,  60  N.  H.  356. 


TENDER  OF  ENGINE. 

Contributory  neglig^ence  in  riding  on,  see 
Employes,  Injuriks  to,  374. 


TENNESSEE 

Aid  to   railroads  by  the  state,  see  State 

Aid,  35. 
Assessment  and  levy  of  taxes  in,  see  Taxa- 

HON.  282. 
Constitutionality  of  statutes  of,  as  to  manic- 

ipal  aid  for  railways,  see  Municipal  and 

Local  Am,  49. 
tax  laws  of,  see  Taxation,  46. 


Construction  of  stock  laws  of,  see  Animals, 

I.NJURIKS  TO,  24. 

Deductions  for  benefits  under  condemnation 
laws  of,  sec  Eminkm  Domain,  753. 

Doctrine  of  comparative  negligence,  how  far 
applied  in,  see  Comparative  Negligence, 
24. 

Grants  by,  to  railroads,  see  Land  Grants, 
125. 

Injuries  to  animals  running  at  large  in,  see 
Animal-s,  Injuries  to,  257. 

License  taxes  in,  see  Taxation,  308. 

Mitigation  of  damages  for  contributory  neg- 
ligence in,  see  Crossings,  Injuries  to 
Persons,  etc.,  at,  207. 

Occupation  of  streets  by  steam  roads  under 
legislative  grants  of,  see  Streets  and 
Highways,  55. 

Operation  of  statute  of,  giving  right  of  ac- 
tion for  causing  death,  see  Death  uv 
Wrongful  Act,  33. 

Review  of  town  bonding  proceedings  by 
mandamus  in,  see  Municipal  and  Local 
Aid,  454. 

Right  to  sue  in,  for  causing  death  in  foreign 
state,  see  Death  uv  Wrongful  Aci,  123. 

Statutes  of,  as  to  duty  to  keep  lookout,  see 
Trespassers,  Injuries  to,  40. 

—  —  relative  to  connecting  lines,  see  ,^on- 
necting  Lines,  2. 

distribution  of  damages  for  caus- 
ing death,  see  Death  by  Wrongful 
Act,  00. 

Taxation  in  aid  of  railways  in,  see  Municipal 
AND  Local  Aid,  420. 


TERMINAL  CHARGES. 

Assessment  of  poor  rates  on,  see  Taxation, 
372. 

Regulation  of,  by  commissioners,  see  Rail- 
way Commissioners,  lO. 

Under  working  agreement,  see  Leases,  etc, 
135. 


TERMINAL  FACILITIES. 

Lease  of,  what  includes,  see  Leases,  etc.,  7. 

Regulation  of,  by  commissioners,  see  Rail- 
way Commissioners,  18. 

Right  to  give  mortgage  on,  see  Mortgages, 
17. 


TERMINATION. 
Of  carrier's  liability  as  such,  see  Carriaok  op 

Merchandise,  79-04,  333-361. 
for  baggage,  see  Baggage,  68-74. 

—  initial  carrier's  liability,  see  Carriage  of 

Merchandise,  615-623. 

—  liability  of  carrier  as  warehouseman,  see 

Carriage  ov  Merchandise,  362-366. 


at,  see  Animals, 

ir  condemnation 
[AiN,  753. 
igence,  how  far 

iVE  Negligence, 

Land  Grants, 

at  large  in,  see 

57. 

on,  3U8. 

intributory  neg- 

m.    Injuries  to 

lam  roads  under 
:e  Strkets  and 

ing  right  of  ac- 
,  see  Okatji  bv 

proceedings  by 
iipal  and  Local 

death  in  foreign 
gfulAci,  123. 
eep  lookout,  see 

lines,  see  ~on- 

images  for  caus- 

BY  Wrongful 

1,  see  Municipal 


ROES. 

1.  see  Taxation, 

oners,  see  Rail- 
lee  Leases,  etc., 

CITIES. 

Leases,  etc.,  7. 
oners,  see  Rail- 

see  Mortgages, 


)N. 

see  Carriags  of 
t33-361. 
ggage,  68-74. 
see  Carriage  of 
i. 

rehouseman,  see 
iE,  362-366. 


TERMINI-TEXAS. 


1037 


Of  liability  of  intermediate  carrier,  see  Car- 
riage OF  Merchandise,  636. 

—  prosecution,  when  plaintiff  must  show,  see 

Malicious  Prosecution,  5. 

—  relation  of  carrier   and    passenger,  see 

Carriage  of  Passengers,  28-37. 

landlord  and  tenant,  see  Landlord 

AND  Tenant,  2. 


TERMINI 

Change  of,  when  releases  subscriber  to 
stock,  see  SuBscRinioNs  to  Stock,  126, 
127. 

Condition  in  subscription  as  to  location  of, 
see  Municipal  and  Local  Aid,  234. 

Construction  of  statutes  relative  to,  see 
Statutes,  57. 

' subscription  as  regards,  see  Subscrip- 
tions TO  Stock,  25. 

Location  of,  see  Location  of  Route,  4. 

under  charter  provisions,  see  Charters, 

63,  64. 

Of  street  railway,  location  of,  see  Street 
Railways,  73. 

^  tunnels,  description  of,  see  Tunnels,  8. 

Power  to  contract  for  transportation  of  per- 
sons and  property  beyond,  see  Ultra 
Vires,  21. 

Priority  of  route  where  two  roads  run  be- 
tween same,  see  Location  ofJRoute,  28. 


TERMS. 

Imposing,  upon  appointment  of  receiver,  see 

Mortgages,  210. 
Of  running  powers,  duration  of,  see  Leases, 

ETC.,   121. 

—  service  of  employs,  see  EMPLOvfis,  2. 


TESTIMONY. 
Of  jurors  on  motion  for  new  trial,  see  New 

Trial.  lOl. 
—  witness  at  former  trial,  admissibility  of, 

see  Evidence,  263. 


TESTS. 
Of  due  care  and  negligence,  see  Negligence, 

18. 
—  what  are  fixtures,  see  Fixtures,  1-3* 


TEXAS. 

Aid  to  railroads  by  the  state,  see  State  Aid, 
.36. 

Assessment  and  levy  of  taxes  in,  see  Taxa- 
tion. 283. 

Common-law  liability  of  carrier  cannot  be 
limited  in,  tee  Carrugb  of  Mbrchan- 
DISB,  14. 


Conditions  exempting  carrier  from  liability 

to   person  riding  on  free  pass  in,   see 

Passks.  3JI. 
Constitutionality  of  statutes  of,  as  to  munici- 
pal aid  for  railways,  see  Municipal  and 

Local  Aio,  50. 
—  granting    remedy    for   causing 

death,  see  Death  hy  Wrhncki'i,  .Acr,  lO. 
— relative  to  condemnation  of  land, 

see  Eminent  Domain,  44. 

tax  laws  of,  see  Taxation,  47. 

Constitutional  provisions  in,  relative  to  con- 
demnation of  land,  see  Eminent  Domain, 

21. 
Construction  of  stock  laws  of,  see  Animals, 

Injuries  to,  25. 
Deductions  for  benefits  under  condemnation 

laws    of,   see    Eminent    Domain,   736, 

754. 
Doctrine  of  comparative  negligence  denied 

in,  see  Comparative  Negligence,  32. 
Grants  by,  to  railroads,  see  Land  Grants, 

126. 
Injuries  to  animals  running  at  large  in,  see 

Animals,  Injuries  to,  258. 
Liability  of  carrier  as  regards  bill  of  lading 

under  statute  of,  see  Carriage  of  Mer- 
chandise. 77. 
Mechanic's  lien  law  of,  see  Liens,  14. 
No  limitation  of  liability  for  negligence  in, 

see  Carriage   of    Merchandise,  481- 

483. 
Occupation  of  streets  by  steam  roads  under 

legislative    grants    of,  see  Sireeis  and 

Highways,  56. 
Operation  of  statute  of,  giving  right  of  ac> 

tion  for  causing  death,  see    Death    by 

Wrongful  Act,  34. 
Penalties  for  overcharges  in,  see  Charges, 

55-67. 

—  under  statute  of,   for  failure  to  furnish 

facilities  for  removal  of  goods,  see  Car- 
riage OF  Merchandise,  213. 

Plaintiffs  pleadings  need  not  negative  con- 
tributory negligence  in,  see  Contribu- 
tory Negligence,  66. 

Pleadings  under  statute  of,  to  recover  pen- 
alty for  discrimination,  see  Discrimina- 
tion, 78. 

Right  to  sue  in,  for  causing  death  in  foreign 
state,  see  Death  by  Wrongful  Act,  124 . 

Rule  as  to  imputed  negligence  in,  see  Im- 
puted Negligence,  22. 

Statutes  of,  imposing  penalty  for  failure  to 
deliver  goods,  see  Carriage  of  Merchan- 
dise, 293. 

—  —  making  overcharges  penal,  see 
Charges,  11. 

regulating  interstate  carriers,  see  In- 
terstate Commerce,  217. 
relative  to  distribution  of  damages  fof 


1 


1038 


THEATRICAL  TROUPES— TICKETS  AND  FARES. 


cauting  death,  Me  Dxath  by  Wrongful 

Act,  70. 
Statutory  provieioni  in,  limiting  amount  re- 

coTerable  for  causing  death,  t^t  Death 

BY  Wrongfui.  Act,  872. 
Taxation  in  aid  of  railways  in,  see  Munici- 
pal AND  Local  Aid,  427. 
Transportation   of  diseased  cattle  in,  see 

Carriage  of  Live  Stock,  1 14. 
What  amounts  to  discrimination  under  stat« 

ute  of,  see  Discrimination,  3. 
—  are  deemed  overcharges  under  ttatutes 

of,  see  Charges,  27. 


THEATRICAL  TROUPES. 
Liability  for  delay  in  transportation  of,  see 

Carriage  of  Passengers,  124. 
Special  rates  to,  see  Interstate  Commerce, 

184. 

THEFTS. 

By  one  passenger  upon  another,  liability  of 

company,  see  Carri  vge  of  Passengers, 

321. 
Liability  of  carrier  where  goods  are  stolen, 

see  Carriage  of  Merchandise,  320. 
^  —  warehousemen  for  loss  by,  see  Express 

Companies,  59. 
Of  goods  in  hands  of  carrier,  liability  for,  see 

Carriage  of  Merchandise,  169,  524. 
—  property  by  employ^,  see  Sleeping,  ktc. 

Companies,  31. 


THROirOH  CARRIAGE. 

Of  baggage,  contract  with  initial  carrier  for, 
see  Baggage,  19. 

Power  of  general  freight  agent  to  make  con- 
tract for,  see  Carriage  of  Merchandise, 
662. 


THROUGH  CONTRACTS. 
Power  of  initial  carriers  to  make,  see  Car- 
RUGB  OF  Passengers,  505-508. 


THROUGH  FREIGHTS 
Overcharges  on,  see  Charges,  48. 


THROUGH  RATES. 

Duty  of  connecting  lines  to  give,  see  Inter- 
state Commerce,  37. 

Regulation  of,  under  Railway  and  Canal 
Traffic  Acts,  see  Charges,  96-106. 

What  are,  and  how  regulated,  see  Charges, 
59-63. 


THROUGH  SHIPMEHT. 
Daty  to  furnish  meant  of,  see  Carriage  or 
Merchandise,  58. 


Duty  to  provide  reasonable  facilities  for,  tee 
Carriage  of  Mekchandise,  535. 

Limitation  of  liability  as  regards,  see  Car- 
riage UP  MERCKANnisK,  006-690. 

Power  to  make  contracts  for,  see  Carriage 
OP  Merchandise,  503-601. 

THROUGH  TICKETS. 
Interpretation   of,  see    Tickets  and  Fares, 
102,  103. 

Right  to  stop  over  on,  itee  Tickets  and  Fares, 

43,  44. 
Rule  requiring,  between  certain  points,  see 

Sleeping,  etc..  Companies,  13. 


TICKET  AGENT. 

Delivery  of  baggage  to,  see  Baggage,  52. 

Expulsion  of  passenger  by  reason  of  mis- 
take of,  see  EjEci ION  uK  Passengers,  21>. 

Liability  of  company  for  false  imprisonment 
by,  see  False  Imi-risunment,  12. 

Modification  of  terms  of  ticket  by,  see  Tick- 
ets and  Fares,  30. 

Service  of  process  on,  see  Process,  33. 


TICKET  BROKERS. 
Power  of  city  to  impose  license  tax  on,  see 

Tickets  and  Fakes,  150. 
Rights  of  purchasers  of  tickets   from. 

Tickets  and  Fares,  151. 


see 


TICKET  OFnCE. 

Duty  to  keep  open,  see  Tickets  and  Fares, 

27-29. 
Prosecution  for  failure   to  keep  open,  see 

Criminal  Law,  20. 


TICKETS  AND  FARES. 

Assignability  of,  see  Assignment,  7. 

At  elections  of  directors,  see  Directors,  etc, 
10. 

Commutation  tickets,  see  Interstaie  Com- 
mf.rce,  178. 

Constitutionality  of  statutes  regulating,  see 
Statutes,  25. 

Discrimination  in  sale  of,  see  Discrimina- 
tion, 29. 

Duty  in  sale  of  through  tickets,  see  Inter- 
state Commerce,  107. 

—  to  carry  passenger  to  station  named  in, 
see  Carriage  of  Passengers,  226. 

pay  extra  fare  when  passenger  does 

not  procure,  see  Ejection  of  Passengers, 
6,  7,  12. 

Effect  of  notice  on,  limiting  liability  for  bag- 
gage, see  Baggage,  98. 

production  or  tender  of,  to  .prevent 


1  *   ■■  M 


3. 


TICKETS   AND   FARES,  1. 


1089 


duties  for,  see 

535. 

irds,  see  Car- 
)5-690. 

see  Carriagk 
>1. 

SIS. 

s  AND  Fares, 

ETSAND  Fares, 

lin  point*,  see 
13. 

r. 

kGGAGE,  52. 

eason  of  mis- 

SSENUUKS,  Ut). 

imprisonment 
r,  13. 

t  by,  see  Tick- 
cess,  33. 

as. 

se  tax  on,  see 
ets   from,  see 


E. 

rs  AND  Fares, 

:eep  open,  see 
LBES. 

NT,  7. 

>IRECTORS,  ETC., 

rERSTAIE    COM- 

regulating,  see 

ee  Discrimina- 

:et8,  see  Inter. 

tion  named  in, 
RS,  226. 
tassenger  does 
OF  Passengers, 

ability  for  bag- 

ot,  to  .preTent 


•Jtction  of  passcnftr.  see  Ejection  or 
Passengrhs,  47-51. 

Expulsion  for  failure  to  procure,  see  Ejec- 
tion OF  Passengers,  7,  8,  12. 

— produce,  see  Ejection  of  Passen. 

oers,  19-32. 

—  —  presenting  invalid  or  wrong,  see  Ejec- 
tion OF  Passengers,  33-41. 

Limitation  of  liabiUty  in,  for  articles  left  in 
cloak  room,  see  Baggage,  130. 

Limited  aiid  unlimited,  discrimination  in,  see 
Interstate  Commerce,  01. 

Mileage  tickets,  see  Interstate  Commerce, 
177. 

Necessity  of  purchase  of,  see  Carriage  or 
Passengers,  12. 

No  agreement  to  stop  implied  from  taking 
up,  see  Carriage  ok  Passengers,  254. 

Notice  disclaiming  liability  printed  on,  see 
Sleeping,  etc..  Companies,  20. 

Of  preceding  carrier,  duty  to  honor,  see  Car- 
riage of  Passengers,  513. 

On  sleeping  and  palace  cars,  see  Slzeping, 
ETC.,  Companies,  12-14. 

Ordinances  regulating  and  requiring  sale  of, 
see  Street  Railways,  201. 

Party.rate  tickets,  see  Interstate  Com- 
merce, 87. 

Prosecution  for  unlawful  sale  of,  see  Crim- 
inal Law,  46. 

Requiring  purchase  of,  before  getting  on 
train,  see  Carriage  or  Passengers,  76. 
77. 

Selling  at  reduced  rates  through  brokers,  see 
Interstate  Commerce,  80. 

State  laws  regulating,  see  Commerce,  6. 

Status  of  traveler  as  passenger  before  pur- 
chase of,  see  Carriage  or  Passengers. 
24. 

To  drovers  on  cattle  trains,  see  Carriage  or 
Livestock.  118-124. 

L  TICKETS.  GENEBALLT 1039 

I.  General  Nature,    Validity, 

and  Effect 1039 

3.  Conditions,  Limitations,  and 

Stipulations 1044 

3.  Purchase  of  Tickets 1046 

4.  Production,  Surrender,  and 

Taking  Up 1050 

5.  Stop-over  Privileges 1053 

n.  PABTICVIAB  KIKOS  OF  TICKETS.   1058 

I.  In  General 1058 

3.  Commutation  Tickets 1061 

3.  Coupons  and  Coupon  Tickets  1063 

4.  Round-trip  and  Excursion 

Tickets 1064 

a.  In  General 1064 

i.  Rules  or  Stipula* 
tions  Requiring 


Identificatioi:  of 
Passenger  and 
Stamping  of  Re- 
turn Tickets...  1067 

5.  Limited  Tickets 1069 

6.  Mileage  Tickets 1073 

7.  Tickets    over     Connecting 

Lines 1073 

in.  VABSS 1076 

I.  Regulation  of  Rates 1076 

3.  Payment  and  Collection ... .   1079 

3.  Overcharges ;      Excessive 

Fares 1083 

4.  Engli'Js  Passenger  Fares . .   1085 

a.  In  General io8>; 

b.  Punishment    and 

Penalties  for 
Failure  to  Pay 
Fare  or  Produce 

Ticket 1088 

IV.  TICKET  BBOX£LB  AND  SCALFEBB.   1090 

L  TICKETS,  OENEBALIT. 
I.  General  Nature,  Validity,  and  Effect. 

1.  Not  a  contract,  but  a  receipt. 
Toucher,  or  token.*— A  passenger  ticket 
may  be  in  such  form  as  to  give  to  it  the 
nature  of  a  receipt  rather  than  a  contract,  its 
office  being,  in  such  case,  n.oinlv  that  of  a 
token  or  voucher,  to  enable  persons  having 
charge  of  carriages  or  vessels  of  common 
carriers  *o  recognize  the  persons  who  are 
entitled  to  be  carried  as  passengers.  Louis- 
ville, N.  A.  &*  C.  R.  Co.  V.  Nicholai,  4  Ind. 
App.  119,  30  A';  E.  Rep.  424. 

A  ticket  for  the  transportation  of  a  pas« 
senger  is  not  a  contract  of  itself ;  it  is  simply 
evidence  of  a  contract.  Kansas  City,  St. 
f.  &»  C.  B.  R.  Co.  V.  Kfdebaugh,  34  Am. 
&*  Eng.  R.  Cas.  219,  38  Kan.  45,  15  Pae. 
Rep.  899. 

A  railroad  ticket  constitutes  a  contract 
between  the  carrier  and  the  holder.  Sears 
V.  Eastern  R.  Co.,  14  Allen  {Mass)  433. 

A  public  advertisement  of  the  times  when 
the  trains  run  enters  into  and  forms  part 
of  the  contract  entered  into  between  a  rail- 
road and  the  holder  of  a  ticket  over  its  line. 
Sears  v.  Eastern  R.  Co.,  14  Allen  (Mass.)  433. 

The  ticket  given  to  a  passenger,  upon 
payment  of  his  fare,  is  a  receipt  merely,  and 
not  a  contract.  Logan  v.  Hannibal  &*  St, 
J.  R.  Co.,  13  Am.  6-  Eng.  R.  Cas.  141,  77 

*  Tickets  considered  as  mere  receipt  for  pas- 
sage, see  note,  5  L.  R.  A.  818. 


II 


1010 


TICKETS  AND   FARES,  Z-5, 


^»*' 


■'  i 


J/tf.  663.  Ltwis  V.  A'w  Kd^r*  C.  R.  Co.,  4.9 
Barb^  (N.  Y.)  330.  Nevim  v.  ^ay  State 
Steairiboat  Co.,  4  ^ortc/.  (N.  Y.)  225. 

Tickets  are  vouchers  that  the  fare  has 
been  paid.  They  do  not  constitute  tho 
contract  with  the  passenger,  although  they 
may  and  often  do  have  upon  them  some 
condition  or  limitation  which  enters  into  it 
and  forms  part  of  it.  The  contract  is  made 
up  of  tlie  ticket  and  the  rules  and  regulations 
established  by  the  carrier,  and  is  what  is 
known  in  law  as  an  entire  contract.  Terry 
V.  Flushing,  N.  S.  &*  C.  R.  Co.,  13  Ilun 
{N.  Y.)  359. 

i\  railroad  ticket  is  not  evidence  of  the 
wliule  contract  between  the  holder  and  the 
company,  which  must,  so  far  as  not  ex- 
pressed, be  gathered  from  such  rules  of  the 
Company  as  are  reasonable.  Dietrich  v. 
Pennsylvania  R.  Co.,  71  Pa.  St.  432,  3  Am. 
Ry.  Rep.  435.— APPROVED  in  Oil  Cree'c  & 
A.  R.  R.  Co.  V.  Clark,  72  Pa.  St.  231.  Dis- 
tinguished IN  Murdock  v.  Boston  &  A.  R. . 
Co.,  21  Am.  &  Eng.  R.  Cas.  268,  137  Mass. 
293,  50  Am.  Rep.  307  ;  Tarbell  v.  Northern 
C.  R.  Co.,  24  Hun  (N.  Y.)  51.  Followed 
IN  McRae  v.  Wilmington  &  W.  R.  Co.,  88 
N.  Car.  126.— Lake  Shore  &>  M.  S.  R.  Co.  v. 
Rosenzweig,  26  Am.  &*  Et^.  R.  Cas,  489, 113 
Pa.  St.  519.  6  Atl.  Rep.  545. 

2. and  the  actual  contract  may 

be  shown  by  parol.— Parol  evidence  of 
a  conversation  between  one  purchasing  a 
ticket  and  the  ticket  seller,  relating  to  stop- 
over privileges,  is  admissible  as  going  to 
make  up  the  contract  of  carriage  and  form- 
ing a  part  of  it.  New  York,  L.  E.  &*  tV. 
R.  Co.  V.  Winter,  52  Am.  &*  Eng.  R.  Cas. 
328,  143  I/.  S.  60,  12  Sup.  Ct.  Rep.  356.— 
Quoted  in  Mann  Boudoir  Car  Co.  v.  Du- 
pre,  54  Fed.  Rep.  646,  4  C.  C.  A.  540. 

A  ticket  does  not  ordinarily  import  a 
completed  contract,  and  parol  evidence  may 
be  introduced  to  show  the  elements  of  the 
contract  which  are  not  set  forth  in  the 
ticket.  Peterson  v.  Chicago,  R.  I.  &-  P.  R. 
Co.,  80  Iffwa  92,  45  N.  W.  Rep.  573. 

Passage  tickets  are  generally  to  be  re- 
garded as  tokens  rather  than  contracts,  and 
are  rot  within  the  rule  excluding  parol  evi- 
dence to  vary  a  written  agreement.  Quimby 
V.  Vanderbilt,  17  N.  V.  306.— Followed  in 
Van  Buskirk  v.  Roberts,  31  N.  Y.  661. 

3.  Distinguished  from  bill  of  lad- 
ing.—  Where  the  shipper  of  property  re- 
ceives from  the  carrier  a  bill  of  lading 
containing  limitations  upon  its  common- 


law  liability,  such  bill  constitutes  the  con« 
tract  o!  shipment,  binding  upon  the  shipper, 
and  he  cannot  thereafter  avoid  the  limita- 
tions by  pleading  ignorance  of  its  contents ; 
but  the  liability  of  the  carrier  for  the  safe  car- 
riage of  a  passenger  and  his  baggage  is  not 
limited  by  a  notice  printed  upon  the  face  of 
the  ticket,  unless  the  passenger's  attention  is 
called  to  it,  or  unless  the  circumstances  are 
such  as  to  make  the  omission  of  the  passen- 
ger to  read  the  conditions  negligence //r 
se.  Thus  a  distinction  is  made  between  a 
shipper  of  goods  and  a  passenger.  Mauritz 
V.  New  York,  L.  E.  &•  W.  R.  Co.,  21  Am. 
6-  Eng.  R.  Cas.  286,  23  Fed.  Rep.  765. 

And  there  is  ground  for  the  above  dis- 
tinction. In  one  case  the  shipper  is  sup- 
posed to  understand  and  know  that  accord- 
ing to  commercial  usage  a  bill  of  lading 
is  essential  to  the  regular  and  safe  transpor- 
tation of  property  as  freight,  and  that  of 
necessity  it  must  constitute  tlie  contract  of 
shipment  in  carriage.  In  the  other  case  a 
ticket  is  ordinarily  regarded  as  a  mere 
voucher  for  the  money  paid,  a  token  or  evi- 
dence of  the  purchaser's  right  to  be  carried, 
or  to  have  his  baggage  carried.  Mauritz  v. 
New  York,  L.  E.  6-  W.  R.  Co.,  21  Atn.  6- 
Eng.  R.  Cas.  286,  23  Fed,  Rep.  765. 

4.  and  a  negotiable  instru- 
ment.—  A  ticket  is  a  receipt  or  voucher, 
and  has  more  the  character  of  personal 
property  than  that  of  a  negotiable  instt'i- 
ment.  Frank  v.  Ingalls,  21  Atn.  &•  Eng.  R. 
Cas.  277,41  Ohio  St.  560.— Quoting  Cleve- 
land, C.  &  C.  R.  Co.  V.  Bartram,  11  Ohio 
St.  457 ;  Baltimore  &  O.  R.  Co.  v.  Campbell, 
36  Ohio  St.  647. 

5.  As  evidence  of  contractual 
rights,  generally— Bight  to  ride  in 
opposite  direction. — Where  a  passenger 
deliberately  enters  a  train,  with  "knowledge 
that  his  ticket  entitles  him  to  be  carried  in 
the  reverse  direction  from  that  in  which  he 
proposes  to  go,  and  with  ample  opportunity 
to  procure  another,  the  conductor  may  re- 
fuse to  honor  such  ticket,  and  has  the  right 
to  collect  fare.  Godfrey  v.  Ohio  &-  M.  R. 
Co.,  37  Am.  &*  Eng.  R.  Cas.  8,  116  Ind.  30, 
IS  West.  Rep.  533,  18  N.  E.  Rep.  61.— DIS- 
TINGUISHING Lake  Erie  &  W.  R.  Co.  v. 
Fix,  88  Ind.  381. 

A  ticket  issued  entitling  the  holder  to 
ride  from  A  to  B  does  not  entitle  him  to 
ride  from  B  to  A,  where  there  is  no  special 
contract  to  that  effect ;  and  this  is  so  though 
the  holder  has  lieen  permitted  so  to  ride  on 


TICKETS  AND   FARES,  6,  7. 


1041 


;itutes  the  con> 
}on  the  shipper, 
roid  the  limita- 
of  its  contents ; 
for  tlie  safe  car- 
b^gR'tgc  is  not 
jpon  the  face  of 
;er's  attention  is 
cumsiances  are 
n  of  the  passeii- 
negligence  per 
nade  between  a 
nger.    Mauritz 
R.  Co.,  21  Am. 
■  Rep-  765. 
the  above  dis- 
shipper  is  sup- 
ow  that  accord- 
bill   of   lading 
id  safe  transpor- 
rht,  and  that  of 
the  contract  of 
le  other  case  a 
led   as    a  mere 
,  a  token  or  evi- 
lit  to  be  carried, 
cd.    Alauritz  v. 
Co.,  31  Am.  &• 
tp.  765. 

table  iiistru- 
:ipt  or  voucher, 
ter  of  personal 
;gotiable  instt<i- 
Am.  &•  Ettg.  Ji, 
Quoting  Clcve- 
irtram,  11  Ohio 
Co.  V.  Campbell, 

contractual 
bt  to  ride  in 

here  a  passenger 
with  'knowledge 
to  be  carried  in 
hat  in  which  he 
iple  opportunity 
iductor  may  re- 
nd has  the  right 
Ohio  6*  M.  R. 
r.  8,  116  Ind.  30, 
.  Rep.  61.— Dis- 
i  W.  R.  Co.  V. 

\  the  holder  to 
t  entitle  him  to 
ere  is  no  special 
this  is  so  though 
:e<i  so  to  ride  on 


similar  tickets,  and  a  conductor  had  given 
it  as  his  opinion  that  the  holder  was  entitled 
to  ride  in  that  way.  Keeley  v.  Boston  6-  M. 
R.  Co.,  67  Me.  163,  16  Am.  Ry.  Rep.  339. 

The  sale  of  a  ticket  to  a  passenger  is  an 
undertaking  that  due  care  for  his  safety 
sliall  be  used  during  the  whole  course  of  his 
journey  over  that  and  otlier  roads,  both  in 
the  management  of  the  trains  and  the  con- 
struction and  maintenance  of  the  lines  in 
a  condition  fit  for  his  passage  over  them  ; 
and  this  liability  is  not  changed  by  leaF'es 
and  agreements  between  the  companies 
having  connecting  lines,  apportioning  the 
charges,  expenses,  and  fares  between  them, 
of  which  the  passenger  had  no  notice. 
Little  V.  Dusenberry,  25  Am.  &*  Eng.  R. 
Cas.  632,  46  A^.  /.  Z.  614. 

Where  one  purchases  a  ticket  for  passage 
to  a  station,  in  the  absence  of  express  stipu- 
lations lie  becomes  entitled  to  be  carried 
over  the  railroad  to  that  station  in  a  reason- 
able time  and  manner,  agreeably  to  the 
reasonable  rules  and  regulations  of  the 
corporation.  Johnson  v.  Concord  R,  Corp., 
46  iV.  H.  213. -Distinguishing  State  v. 
Overton,  24  N.  J.  L.  435 ;  Cheney  v.  Boston 
tS:  M.  R.  Co  ,  II  Meic.  (Mass.)  121  ;  Farm- 
ers' &  M.  Bank  v.  Champlain  Transp.  Co., 
23  Vt.  211. 

The  sale  of  a  ticket  before  the  arrival  of 
a  train,  or  when  it  is  at  the  station,  does 
n.it  give  to  the  purchaser  a  specific  right  to 
take  that  particular  train,  so  that  it  must  be 
held  long  enough  for  him  to  go  upon  it. 
The  ticket  gives  no  right  to  delay  the  train, 
but  simply  a  right  to  take  any  train  bound 
to  the  passenger's  destination  which  stops 
at  that  station,  provided  he  presents  him- 
self in  time;  and  upon  the  passenger  is 
imposed  the  duty  of  presenting  himself  in 
time  or  waiting  for  a  succeeding  train. 
Paulitsch  V.  New  York  C.  &*  H.  R.  R.  Co., 
'6  Am,  6^  Eng.  R.  Cas.  162, 102  A'.  V.  280, 
6  N.  E.  Rep.  577,  I  N.  Y.  S.  R.  656 ;  revers- 
ing 18/.  <S-5.  241. 

The  possession  of  a  ticket  is  prima  facie 
evidence  that  the  holder  has  paid  the  regu- 
lar price  for  it,  and  of  his  right,  at  some 
time,  to  be  transportL .  from  the  starting 
point  to  the  place  of  destination  as  indicated 
thereon,  on  some  passenger  train ;  and  if 
the  ticket  is  not  mutilated,  the  presumption 
is  that  it  has  never  been  used,  and  it  is  evi- 
dence of  the  agreement  or  undertaking  of 
the  company  to  transport  him  to  the  place 
named,  on  its  passenger  trains,  for  a  con- 
7  D.  R.  D.— 66 


sideration  paid.    Pitr  v.  Finch,  24  Bard. 
{N.  Y.)  S14. 

6.  Conclusiveness  of  ticket.'*'  —  Be- 
tween the  conductor  and  a  passenger,  as  to 
the  right  of  the  latter  to  travel,  the  ticket 
purchased  must  be  conclusive  evidence,  and 
the  passenger  must  produce  it  when  called 
upon,  as  evidence  to  the  right  to  the  seat  he 
claims.  Chicago  &■*  N.  IV.  R.  Co.  v.  Ban- 
ner man,  IS  ///.  App.  100.  Frederick  v. 
Marquette,  H.  Of  O.  R.  Co.,  yj  Mich.  342. 

Plaintiff  purchased  in  good  faith  of  de- 
fendant's agent  a  genuine  ticket,  which  the 
agent  had  a  right  to  sell  and  receive  pay 
for,  covering  the  distance  between  two 
stations,  and  was  informed  by  the  agent 
that  it  was  good,  and  entitled  him  to  a 
ride  between  said  two  stations.  Held,  that 
plaintiff  had  a  right  to  rely  upon  the  agent's 
statements,  and  that  the  ticket  was  the  evi- 
dence agreed  upon  by  the  parties  by  which 
defendant  should  thereafter  recognize  the 
rights  of  plaintiff  in  the  contract  thus  made 
with  the  agent,  and  was  conclusive  upon 
the  subject.  Hufford  v.  Grand  Rapids  &* 
I.  R.  Co.,  64  Mich.  631,  31  N.  W.  Rep.  544, 
—  Distinguished  in  Heffron  v.  Detroit 
City  R.  Co.,  92  Mich.  406 ;  Mahoney  v.  De- 
troit St.  R.  Co.,  93  Mich.  612.  Reviewed 
IN  Peabody  v.  Oregon  R.  &  N.  Co.,  21 
Oreg.  121. 

The  face  of  a  ticket  is  conclusive  evi- 
dence to  the  conductor  of  the  terms  of  the 
contract  between  the  passenger  and  the 
company.  If  the  ticket  is  defective  and  the 
passenger  is  ejected  from  a  train,  he  must 
rely  upon  his  action  against  the  company 
for  the  negligent  mistake  of  the  ticket 
agent.  Pouilin  v.  Canadian  Pac.  R.  Co.,  53 
Am.  (S-  Eng.  R.  Cas.  188,  ^^2  Fed.  Rep.  197. 
6  U.  S.  App.  298,  3  C.  C.  A.  23.— Follow- 
ing New  York,  L.  E.  &  W.  R.  Co.  v.  Ben- 
nett, 50  Fed.  Rep.  496,  i  C.  C.  A.  544. 

7.  Interpretation  of  particular 
words,  —  The  words  "  good  on  passenger 
trains  only  "  on  a  ticket  do  not  amount  to 
an  agreement  that  all  passenger  trains  will 
stop  at  the  station  designated  on  the  ticket. 
And  in  an  action  by  the  passenger,  against 
the  company,  to  recover  damages  for  carry- 
ing him  past  his  destination  named  on  such 

'Conclusiveness  of  ticket  as  to  passenger's 
rights  and  conductor's  duties.  Effect  of  refusal 
of  agent  to  countersign  return  ticket,  see  $3 
Am.  &  Eng.  R.  Cas.  196,  abstr. 

Conclusiveness  of  tickets  as  between  passen- 
gers and  conductors,  see  note,  46  Am.  Rbp.  483. 


1045 


TICKETS  AND   FARES,  8* 


rf  i 


r  i 


\m^ 


IS::: 


iU 


ticket,  the  complaint  should  aver  that  the 
train  on  which  he  was  so  carried  was  one 
which,  under  the  regulations  of  the  com- 
pany, should  have  stopped  at  that  station. 
OAio  &*  M.  R.  Co.  V.  Swarthout,  67  Jnd.  567. 
—Following  Ohio  &  M.  R.  Co.  v.  Hat- 
ton,  60  Ind.  12. 

If  the  words  "good  upon  one  train  only  " 
are  prinu  d  upon  a  ticket  the  holder  is  not 
entitled  to  change  from  one  train  to  an- 
other after  the  passage  is  begun.  Cheney  v. 
Boston  &*  M.  R,  Co.,  11  Mete.  {Mass.)  121. 

Where  a  ticket  is  issued  with  a  notice 
upon  it  that  it  is  "  good  for  one  day  only," 
in  the  absence  of  a  statutory  regulation  to 
the  contrary  the  ticket  can  be  used  only  on 
that  day.  State  v.  Campbell,  32  N.  J.  L. 
309.  Boston  &»  L.  R,  Co.  v.  Proctor,  i  Allen 
{Mass.)  267.  Johnson  v.  Concord  R.  Corp., 
46  A^.  /r.  213.  5/iedd  v.  Troy  &>  B.  R.  Co.. 
40  Vt.  88. 

A  condition  in  a  ticket  as  to  traveling 
"  vt'c  direct  line  "  was  rejected  as  meaning- 
less, each  of  three  possible  routes  being  cir- 
cuitous, though  one  was  shorter  in  point  of 
mileage  than  the  others.  Dancey  v.  Grand 
Trunk  R.  Co.,  52  Am.  &*  Eng.  R.  Cas.  181, 
19  Ont.  App.  664.— Not  following  Hall  v. 
Memphis  &.  C.  R.  Co.,  15  Fed.  Rep.  57,  9 
Fed.  Rep.  585 ;  Pennsylvania  R.  Co.  v.  Con- 
nell,  112  III.  295. 

8.  MiHtakes  iu  tickets  —  Defective 
tickets.*—  P'.aintiflf  entered  a  ticket  office 
and  paid  for  a  ticket  to  a  designated  place. 
The  ticket  as  issued  was  somewhat  compli- 
cated, the  point  of  departure  and  destina- 
tion being  indicated  by  punching  certain 
stations  marked  on  its  face,  as  well  as  the 
direction  in  which  it  was  to  be  used.  After 
plaintiff  was  on  the  train  it  was  discovered 
that  it  was  punched  for  a  station  in  the 
wrong  direction.  Held,  that  the  failure  to 
receive  a  proper  ticket  was  not  his  fault 
and  the  company  had  no  right  to  eject 
him  on  that  ground.  Georgia  R.  Co.  v.  Olds, 
77  Ga.  673. 

If  a  ticket  be  so  defaced  by  the  act  or 
negligence  of  a  passenger  as  to  make  the 
date  illegible,  a  gateman  has  the  right  to 
refuse  to  honor  it,  and  to  refuse  to  allow 
him  to  pass  to  the  train,  and  for  such  re« 
fusal  no  action  will  lie.  Northern  C.  R.  Co, 
v.  0' Conner,  $3  Am.  fi-  Eng.  R.  Cas.  176,  76 
Md.  207,  16  L.  R.  A.  449,  34  Atl.  Rep.  449. 

*  Expulsion  of  passenKer  for  defect  in  his 
ticket  not  discoverable  by  him  by  inspection,  see 
note,  ai  Ah.  &  Eno.  R.  Cas.  375. 


If  a  ticket  be  so  blurred  or  defaced  at  the 
time  it  it  delivered  to  a  passenger  by  the 
ticket  agent,  and  it  is  presented  at  the  gate 
in  the  same  condition  as  when  he  got  it, 
and  the  gateman  refuses  to  allow  him  to 
pass,  the  passenger  himself,  being  without 
fault,  is  under  no  obligation  to  get  the 
indorsement  of  the  ticket  receiver,  and  for 
such  wrongful  refusal  by  the  gateman  the 
defendant  is  liable.  Northern  C.  R.  Co.  v. 
O' Conner,  52  Am.  &*  Eng.  R.  Cas.  176,  76 
Md.  207,  16  L.  R.  A.  449,  24  Atl.  Rep.  449. 

To  hold  that  a  passenger  who  has  bought 
a  ticket,  and  in  good  faith  presents  it  to 
the  gateman  in  the  same  condition  as  when 
he  got  it  from  the  ticket  agent,  is  obliged 
to  go  to  the  receiver's  office  and  get  his 
indorsement,  because  its  genuineness  has 
been  questioned  by  the  gateman,  would  not 
only  subject  him  to  great  inconvenience^ 
but  in  many  cases  it  would  be  impossible  to 
get  such  indorsement  in  time  to  take  the 
train.  Northern  C.  R.  Co.  v.  O'Conner,  52 
Am.  &*  Eng.  R.  Cas.  176,  76  Md.  207,  16 
L.  R.  A.  449,  24  Atl.  Rep.  449. 

Where  a  passenger  has  purchased  a  ticket 
and  a  conductor  does  not  carry  him  accord- 
ing to  its  terms,  or  if  the  company,  through 
the  mistake  of  its  agent,  has  given  him  a 
wrong  ticket,  so  that  he  is  compelled  to 
relinquish  his  seat  or  pay  fare  a  second 
time,  he  has  a  right  of  action  against  the 
company  for  breach  of  contract,  and  not  of 
an  action  to  recover  damages  for  being 
ejected  from  the  train.  Frederick  v.  Mar- 
quette, H.  &*  0.  R.  Co.,  37  Mid:  342.— DIS- 
TINGUISHED IN  Lake  Erie  &  W.  R.  Co.  v. 
Fix,  II  Am.  &  Eng.  R.  Cas.  109,  88  Ind. 
381.  45  Am.  Rep.  464;  Philadelphia,  W.  4 
B.  R.  Co.  V.  Rice,  26  An).  &  Eng.  R.  Cas. 
264,  64  Md.  63;  Murdock  v.  Boston  &  A. 
R.  Co.,  21  Am.  &  Eng.  R.  Cac.  268,  137 
Mass.  293,  50  Am.  Rep.  307.  Followed  in 
New  York,  L.  E.  &  W.  R.  Co.  v.  Bennett, 
50  Fed.  Rep.  496,  6  U.  S.  App.  i,  i  C.  C.  A. 
544 ;  Huflord  v.  Grand  Rapids  &  I.  R.  Co., 
18  Am.  &  Eng.  R.  Cas.  336,  53  Mich.  118; 
Heflron  v.  Detroit  City  R.  Co.,  92  Mich. 
406.  Quoted  in  Mahoney  v.  Detroit  St. 
R.  Co.,  93  Mich.  6i2  ;  McKay  t/.  Ohio  River 
R.  Co.,  34  W.  Va.  65.  Reviewed  in  Pea- 
body  V.  Oregon  R.  &  N.  Co.,  21  Oreg.  121; 
Louisville,  N.  &  G.  S.  R.  Co.  v.  Fleming, 
14  Lea  (Tenn.)  128. 

A  passenger  without  a  ticket  cannot  be 
treated  by  the  conductor  as  a  trespasser,  if 
he  is  upon  the  train  by  mistake  of  the  aery- 


TICKETS  AND   FARES,  9-13. 


1043 


>r  defaced  at  the 
issenger  by  the 
nted  at  the  gate 
vhen  he  got  it, 

0  allow  him  to 
,  being  without 
ion  to  get  the 
eceiver,  and  for 
he  gateman  the 
em  C.  li.  Co.  V. 

Ji.  Cas.  176,  76 
4  All.  Rep,  449. 
who  has  bought 

1  presents  it  to 
ndition  as  when 
igent,  is  obliged 
ce  and  get  his 
genuineness  has 
iman,  would  not 

inconvenience, 

be  impossible  to 

ime  to  take  the 

V.  O'Conner,  52 

76  Md.  207,  16 

49. 

irchased  a  ticket 
irry  him  accord- 
mpany,  through 
as  given  him  a 
is  compelled  to 
t  fare  a  second 
ion  against  the 
ract,  and  not  of 
lages  for  being 
federick  v.  A/ar- 
^ick.  342.— DlS- 
&  W.  R.  Co.  V. 
as.  109.  88  Ind. 
ladelphia,  W.  & 
&  Eng.  R.  Cas. 
K  Boston  &  A. 
.  Cac.  268,  137 
Followed  in 
Co.  V.  Bennett, 
pp.  1. 1  C.  C.  A. 
pids  &  I.  R.  Co., 
>,  53  Mich.  118; 
.  Co.,  92  Mich. 
|r  V.  Detroit  St. 
\yv.  Ohio  River 
lEWED  IN  Pea> 
>.,  21  Oreg.  121 ; 
Co.  V.  Fleming, 

icket  cannot  be 
s  a  trespasser,  if 
:ake  of  the  lerv 


ants  of  the  railway,  or  if  there  is  a  mistake 
in  the  ticketgiven  to  him  calling  for  a  route 
different  from  that  contracted  for  with  the 
ticket  agent.  If  the  passenger  contracts  for 
passage  to  a  given  point,  and  pays  for  car- 
riage, he  has  the  right  to  stand  upon  his 
contract  as  really  made  with  the  ticket 
agent.  If  the  carrier  by  mistake  fails  to 
deliver  what  the  passenger  purchased,  or 
fails  to  furnish  him  with  a  ticket  evidencing 
his  rights  secured  by  the  contract  really 
entered  into,  it  must  correct  such  mistake 
and  grant  to  him  the  privilege  and  right 
actually  purchased.  Gulf,  C.  «S-  5.  F.  R. 
Co.  v.  Rather,  3  Tex.  Civ.  App.  72,  21  S.  IV. 
Rep.  951.  —  Quoting  International  &  G.  N. 
R.  Co.  V.  Gilbert,  64  Tex.  540. 

9.  Good  for  what  trains.'*'— A  carrier 
may  charge  a  passenger  for  the  actual  dis- 
tance he  is  carried  if  he  is  on  the  wrong  train 
by  mistake.  Columbus,  C.  &•  I.  C.  R,  Co.  v. 
Powell,  40  Ind,  37.— Reviewed  in  Lake 
Erie  &  W.  R.  Co.  v.  Mays,  4  Ind.  App.  413. 

A  road  from  S.  to  A.  was  used  by  both 
defendant  and  another  company,  each  oper- 
ating its  own  trains.  Plaintiff  purchased  a 
ticket  from  S.  to  A.  which  was  good  on  a 
train  of  either  company,  and  entered  at  S. 
a  train  of  the  associate  company  which  ran 
only  to  M..  a  point  intermediate  between  S. 
and  A.  The  conductor  of  this  train  ac- 
cepted his  ticket  in  payment  of  his  fare 
from  S.  to  M.,  punched  it,  and  returned  it 
to  him.  Held,  that  plaintiff  had  no  right 
on  this  ticket  to  resume  his  journey  to  A. 
on  one  of  defendant's  trains.  IVyman  v. 
Northern  Pac.  R.  Co.,  22  Am.  &*  Eng.  R. 
Cas.  402,  34  Minn.  210,  25  A'^.  W.  Rep.  349. 

A  company  may  prescribe  th»  train  upon 
which  a  ticket,  issued  for  a  special  consider- 
ation, shall  be  good.  Thorp  v.  Concord  R. 
Co.,  61  Vt.  378,  17  Atl.  Rep.  791. 

10. and  for  what  stations,  — 

When  a  company  has  sold  a  ticket  to  a 
particular  station  it  has  no  right  to  refuse 
to  stop  its  train  there,  and  is  liable  for  such 
refusal.  And  a  ticket  from  one  designated 
station  to  another  is  good  for  any  inter- 
mediate station  at  which,  by  the  regula- 
tions of  the  company,  trains  regularly 
stop.  Richmond,  F.  &*  P.  R.  Co.  v.  Ashiy, 
79  t^a.  130. 

11.  Bights  of  holder  of  fraudu- 
lently  procured   ticket.  —  When    the 


*  Tickets  for  passenger  trains ;  regulations, 
see  note,  34  Au.  &  Eng.  R.  Cas.  367. 


possession  of  a  ticket  which  entitles  the 
holder  to  one  first-class  passage  between 
points  named  therein  has  been  fraudulently 
obtained  from  tlie  company,  a  person  pur- 
chasing such  ticket  from  the  holder  thereof, 
although  for  <alue  and  without  notice  of 
equities,  acquires  no  title  therein.  Frank 
V  Ingalls,  21  Am.  &•  Eng.  R.  Cas.  277,  41 
Ohio  St.  560.— Quoting  Cleveland,  C.  &  C. 
R.  Co.  V.  Bartrani,  1 1  Ohio  St.  457 ;  Balti- 
more &  O.  R.  Co.  V.  Campbell,  36  Ohio 
St.  647. 

12.  Lost  ticlcets.* — A  passenger  who 
loses  or  mislays  his  ticket  after  entering 
the  cars  has  no  riglit  to  supply  its  place  by 
offering  testimony  that  he  actually  bought 
the  ticket  and  lost  it,  and  the  conductor  or 
other  employe  whose  duty  it  is  to  take  up 
the  ticket,  under  a  rule  wliich  gives  him  no 
discretion,  cannot  be  required  to  hear  testi- 
mony on  the  subject,  or  to  determine  its 
weight  at  the  peril  of  the  company.  LouiS' 
ville,  N.  «J-  G.  S.  R.  Co.  v.  Flemittg,  18  Am. 
&•  Eng.  R.  Cas.  347,  14  Lea  (Tenn.)  128. 

.  There  is  no  distinction,  so  far  as  it  affects 
the  relative  rights  of  the  parties,  whether  a 
ticket  be  lost  or  mislaid  by  a  passenger 
before  or  after  going  upon  the  train. 
Louisville,  N.  &*  G.  S.  R.  Co.  v.  Fleming, 
18  Atn.  &*  Eng.  R.  Cas.  347,  14  Lea 
(Tenn.)  128. 

A  passenger  who  has  paid  his  fare  and 
has  lost  his  ticket  cannot  be  ejected  from 
the  train  upon  his  failure  to  produce  his 
ticket  for  inspection  by  the  conductor, 
there  being  upon  the  ticket  no  condition 
requiring  its  production,  and  no  contract 
foi  its  production  having  been  entered  vixu. 
That  is  not  a  refusal  to  pay  his  fare  under 
$t  Vict.  c.  29,  §  248  (D).  Beaver  v.  Grand 
Trunk  R.  Co.,  58  Am.  6-  Eng.  R.  Cas.  42, 
20  Ont.  App.  476;  reversed  in  59  Am.  &* 
Eng.  R.  Cas.  673,  22  Can.  Sup.  Ct.  498. 

13.  Statutes  regulating  the  issu- 
ance, taking  up,  and  redemption.— 
Ind.  Act  of  March  9,  1875  (i  Rev.  St.  1876, 
p-  2S9)>  "  regulating  the  issuing  and  taking 
up  of  tickets  and  coupons  of  tickets  by 
common  carriers,"  is  in  the  nature  of  a 
police  regulation,  is  valid,  and  is  not  in  con- 
flict with  the  Constitution  of  either  the 
United  States  or  the  state.  Frjf  v.  State, 
63  /nd.  552.— Quoting  Hannibal  &  St.  J.  R. 


*  See  also  Ejection  of  Passengers,  20. 
Right    of   passenger   who  has  lost  ticket  to 
travel,  see  note,  5  L.  R.  A.  819. 


1  ■;: 


1044 


TICKETS  AND   FARES,   14,15. 


Co.  V.  Husen,  95  U.  S.  465;  Patterson  v. 
Kentucky,  97  U.  5.  501. 

Such  statute  does  not  impair  the  obliga- 
tions of  contracts,  nor  dues  it  grant  to  any 
one  privileges  or  immunities  denied  to 
others.    Fry  v.  S/ate,  63  /«</.  552. 

Nor  does  it  violate  the  Constitution  of 
the  United  Stales,  art.  i.  §  8,  which  confers 
upon  congress  the  power  to  regulate  com- 
merce among  the  states,  frjt  v.  5/a//,  63 
Ind.  5  J  2. 

Under  Pa,  Act  of  May  6, 1863  (P.  L.  582), 
requiring  railroads,  steamboats,  and  other 
public  conveyances  to  redeem  the  unused 
portion  of  a  ticket  "  at  a  rate  which  shall 
be  equal  to  the  difference  between  the  price 
paid  for  the  whole  ticket  and  the  cost  of 
a  ticket  between  the  points  for  which  the 
proportion  of  said  ticket  was  actually  used," 
and  the  amendatory  Act  of  April  10,  1872 
(P.  L.  51),  providing  that  the  company 
shall  "  pay  for  such  unused  portion  of  ticket 
the  difference  between  the  actual  fare 
to  point  used,  and  the  amount  paid  for 
such  ticket,"  the  actual  fare  to  the  point 
used  is  not  to  be  computed  at  the  reduced 
rate  contained  in  the  ticket,  but  at  full  fare. 
SmtU  V.  Philadtlphia  &*  Ji.  Ji.  Co.,  I  Pa. 
Dist.  322. 

a.  Conditions,  Limitations,  and 
Stipulations.* 

14.  When  binding  on  passenger.— 

On  the  issue  whether  the  buyer  of  a  ticket 
had  notice  of  a  rule  restricting  holders  of 
tickets  to  passage  on  special  trains  before 
he  undertook  to  pass  by  it  on  a  regular 
train,  evidence  is  admissible  that  at  the 
time  of  buying  it  he  inquired  of  the  seller 
whether  he  could  pass  on  that  train  by  it, 
and  was  answered  that  he  could — although 
the  seller  was  not  an  agent  of  the  corpora- 
tion. Maroney  v.  Old  Colony  &*  N.  R.  Co., 
106  Mass.  I  S3,  7  Am.  Ry.  Rep.  427. 

The  rule  that,  in  the  absence  of  fraud, 
concealment,  or  improper  practice,  the  legal 
presumption  is  that  stipulations  contained 

•See  also  Limitation  of  Liability. 

Admission  of  evidence  to  show  condition  on 
which  ticket  was  issued,  see  note,  33  AM.  ft 
Eng.  R.  Cas.  679. 

As  to  how  far  passenger  is  bound  by  terms 
and  conditions  on  ticket,  see  notes,  S  L.  R.  A. 
819;  58  Am.  &  Eno.  R.  Cas.  60,  ahtr. 

Duty  of  passenger  to  acquaint  himself  with 
conditions  of  ticket  and  whether  train  stops  at 
bis  destination,  see  note,  50  Am.  Rip.  $17. 


in  a  common  carrier's  receipt  for  freight, 
limiting  his  common-law  liability,  were 
known  and  assented  to  by  the  person  re- 
ceiving it,  applies  to  the  carriers  of  passen 
gers  with  their  baggage.  Steers  v.  Liverpool, 
N.  Y.  6-  P.  Steamship  Co.,  57  A'.  Y.  i.— Ap- 
plying Cochran  v.  Dinsniore,  49  N.  Y.  249, 
Following  Belger  v.  Dinsniore,  51  N.  Y. 
166.  Reconciling  Blossom  v.  Dodd,  43  N. 
Y.  264.  —  Distinguished  in  Magnin  v. 
Dinsmure,  56  N.  Y.  168.  Followed  in 
Westcott  V.  Fargo,  61  N.  Y.  542 ;  Dana  v. 
New  York  C.  &  H.  R.  R,  Co.,  50  How.  Pr. 
(N.  Y.)428.  Quoted  in  Kirstv.  Milwaukee, 
L.  S.  &  W.  R.  Co..  46  Wis.  489.  Reviewed 
IN  Rice  V.  Illinois C.R. Co.,  22  111.  App.  643. 

15.   where  lie  has  no  actual 

knowledge  thereof.  —  When  a  passen- 
ger ticket  is  free  from  anything  calculated 
to  mislead  or  deceive  the  person  buying  it, 
and  professes  to  and  does  set  out  a  special 
contract  between  the  carrier  and  passenger, 
so  legibly  and  plainly  that  it  will  be  care- 
lessness on  the  part  of  the  latter  to  over- 
look it,  there  can  be  no  good  reason  why  such 
a  "  contract  ticket "  should  not  be  held  as 
conclusive  upon  the  passenger  as  bills  of  lad- 
ing or  the  receipts  of  the  common  carrier 
are  upon  the  shipper  or  bailor  of  goods. 
In  such  case,  the  passenger  cannot  be  lieard 
to  say  that  he  did  not  read  the  special  con- 
tract contained  in  his  ticket.  He  is  expected 
to  read  it,  and  if  he  has  the  opportunity  to 
read  it  and  fails  to  do  so.  he  is  nevertheless 
bound  by  its  stipulations.  Louisville,  N. 
A.  &*  C.  R.  Co.  V.  Nicholai,  4  Ind.  App.  1 19, 
30  N.  E.  Rep.  424. 

Although  a  passenger  traveling  by  a 
freight  train  is  unaware  of  a  condition  in 
his  ticket  relieving  the  company  from  any 
liability  for  injuries  in  any  way  arising  from 
the  fact  that  a  passenger  coach  is  attached 
to  a  freight  train,  he  is  bound  by  such  con- 
dition and  the  company  is  exempt  from  lia- 
bility for  any  accident  within  its  scope. 
Johnson  v.  Great  Southern  &•  W.  R.  Co.,  9 
Jr.  C.  L.  708,  3  Ry.  &*  C.  T.  Cas.  xiv. 

Outside  the  cover  of  a  paper  book  of 
coupons  forming  a  ticket,  issued  to  plain- 
tiff, was  printed  the  name  of  the  railway, 
the  words,  "Cheap  return  ticket,  L.  to 
P.  and  back,  second  class,"  and  a  statement 
of  the  period  and  journey  for  which  the 
ticket  was  available,  but  no  reference  to  the 
inside  of  the  cover.  On  the  inside,  and  ap- 
parent on  turning  the  leaf,  was  a  condition 
limiting  the  responsibility  of  defendant  to 


TICKETS   AND   FARES,  16-10. 


1045 


eipt  (or  freight, 
liability,    were 
the  person  Te- 
rriers of  passen 
iers  V.  Liverpool, 
7  A'.  Y.  I.— Ap- 
re,  49  N.  Y.  249. 
iinore,  51  N.  Y. 
\  V.  Dodd,  43  N. 
IN   Magnin  v. 
Followed  in 
.  542 ;  Dana  v. 
lo„  50  How.  Pr. 
St 7/.  Milwaukee, 
j89.    Reviewed 
22  111.  A  pp.  643. 
as  110  actual 
IVhen  a  passen- 
thing  calculated 
erson  buying  it, 
set  out  a  special 
r  and  passenger, 
it  will  be  care- 
!  latter  to  over- 
reason  why  such 
not  be  held  as 
er  as  bills  of  lad- 
bommon  carrier 
bailor  of  goods, 
cannot  be  heard 
the  special  con- 
:.  He  is  expected 
;  opportunity  to 
e  is  nevertheless 
Louisville,  N. 
\Ind.  App.  119, 

traveling  by  a 
f  a  condition  in 
npany  from  any 
vay  arising  from 
oach  is  attached 
nd  by  such  con- 
;xempt  from  lia- 
ithin  its  scope. 
&*  W.  R.  Co.,  9 
'.  Cas.  xiv. 
paper  book  of 
issued  to  plain- 
of  the  railway, 
1  ticket,  L.  to 
and  a  statement 
r  for  which  the 
reference  to  the 
e  inside,  and  ap- 
was  a  condition 
of  defendant  to 


its  own  trains.  Plaintiff,  having  been  in- 
jured while  traveling  in  a  French  train, 
sued  defendant,  who  set  up  the  condition. 
Plaintiff  had  not  read  and  did  not  know  of 
it.  Held,  that  the  whole  book  was  the  con- 
tract accepted  by  plaintiff,  and  he,  there* 
fore,  could  not 'reject  the  condition  which 
was  one  of  its  terms,  and  that  judgment 
should  be  entered  for  defendant.  Burke  v. 
South  Eastern  R.  Co.,  %C.P.D.i,  49  L.  J. 
C.  P.  107,  3  Ry.  &*  C.  T.  Cas.  xv. 

16. passenerer's  acceptauce  and 

signature. — A  passenger  who  assents  to 
the  contract  contained  in  a  ticket  by  ac- 
cepting and  signing  it  is  bound  by  the  con- 
ditions expressed  in  it,  whether  he  knew 
what  they  were  or  not,  and  evidence  as  to 
the  time  when  he  first  knew  the  conditions 
is  inadmissible  in  an  action  for  breach  of 
the  contract  of  carriage.  Boylan  v.  Not 
springs  R.  Co.,  40  Am.  &»  Eng.  R.  Cas.  666, 
132  If.  S.  146,  10  Sup.  Ct.  Rep.  50. 

Where  a  passenger  signs  his  name  to  a 
contract  printed  on  a  ticket,  in  the  absence 
of  fraud,  mistake,  or  misrepresentation  it 
must  be  assumed  that  he  read  the  contract 
and  assented  to  it,  though  it  is  printed  in 
small  type,  and  the  passenger  acted  some- 
what hurriedly.  Bethea  v.  Northeastern  R. 
Co.,  26  So.  Car.  ^\,\  S.  E.  Rep.  yj2. 

17.  When  not  binding  on  passen- 
ger.— Where  a  passenger  is  unable  to  read 
the  language  in  which  a  ticket  is  printed, 
and  no  explanation  is  made  by  the  agent 
selling  it,  he  is  not  bound  by  special  terms 
and  conditions  printed  thereon.  Mauritz 
v.  New  York,  L.  E.  S^  W.  R.  Co.,  21  Am,  &» 
Eng.  R.  Cas.  286.  23  Fed.  Rep.  765. 

If  any  attempt  at  imposition  or  deception 
appears,  or  any  device  be  resorted  to  calcu- 
lated to  mislead  the  passenger  or  shipper, 
or  to  keep  from  his  notice  any  matter  of  the 
printed  or  written  indorsements  on  the  re- 
ceipt or  ticket  which  are  intended  to  affect 
the  liability  of  the  carrier,  they  will  not  avail 
the  latter  if  they  have  been  overlooked 
by  the  former.  Louisville,  N.  A.  &*  C,  R. 
Co.  V.  Nicholai,  4  Ind.  App.  119,  30  A''.  E. 
Rep.  424. 

Where  a  limitation  is  inserted  in  a  ticket, 
that  the  company  will  only  be  liable  for  a 
certain  amount  in  case  of  loss  of  baggage, 
the  limitation  is  not  binding  pn  the  passen- 
ger unless  he  agrees  to  it  with  full  knowl- 
edge ;  and  where  the  ticket  is  printed  with 
•  blank  space  for  the  passenger's  signature, 
but  lie  it  not  requested  to  sign  it,  and  does 


not  do  so,  there  is  uo  completed  contract, 
and  the  limitation  is  not  binding  on  him. 
Kansas  City,  St.  J.  &*  C.  B.  R.  Co.  v.  Rodt- 
baugh,  34  Am.  &*  Eng.R.  Cas.  219,  38  Kan. 
45,  15  Pac.  Rep.  899. 

The  purchaser  of  a  ticket  does  not,  by  his 
mere  acceptance,  acquiesce  in  and  bind 
himself  to  all  the  terms  and  conditions 
printed  thereon,  in  the  absence  of  actual 
knowledge  of  them.  Kent  v.  Baltimore  &* 
O.  R.  Co.,  31  Am.  &*  Eng.  R.  Cas.  125,  45 
Ohio  St.  284,  10  West.  Rep.  457,  12  A^.  E. 
Rep.  798.— Following  Baltimore  &  O.  R. 
Co.  V.  Campbell,  36  Ohio  St.  647 ;  Davidson 
V.  Graham,  2  Ohio  St.  135;  Jones  v.  Voor- 
hees,  10  Ohio  145  ;  Rawson  v.  Pennsylvania 
R.  Co.,  48  N.  Y.  212;  Brown  v.  Eastern  R. 
Co.,  II  Cush.  (Mass.)  97 ;  Malone  v.  Boston 
&  W.  R.  Co.,  12  Gray  (Mass.)  388;  Camden 
&  A.  R  Co.  V.  Baldauf,  16  Pa.  St.  67, 

18.  Burden  on  carrier  to  show 
knowledge  of  passenger.  —  Where  a 
ticket  is  issued  with  a  memorandum  there- 
on limiting  the  liability  of  the  railroad,  the 
burden  is  on  the  company  to  prove  that  the 
passenger  knew  of  such  limitation  and  as- 
sented thereto.  Baltimore  &*  O.  R.  Co.  v. 
//arris,  12  IVall.  ([/.  S.)  65,  i  Am.  Ry. 
Rep.  559. 

19.  Limiting  carrier's  liability  to 
Its  own  line  and  trains.  —  Where  a 
company  is  chartered  in  one  state,  but  is 
subsequently  authorized  to  extend  its  road 
through  other  states,  with  substantially  the 
same  rights,  so  that  no  new  corporation  is 
created,  the  liability  of  the  company  is  not 
changed  by  a  condition  on  a  ticket  that 
"  responsibility  for  safety  of  persons  or  loss 
of  baggage  on  each  portion  of  the  route  is 
confined  to  the  proprietors  of  that  portion 
alone."  Baltimore  &*  O.  R.  Co.  v.  //arris,  12 

IVall.  ([/.  S.)  65,  I  Am.  Ry.  Rep.  559.— AP- 
PLIED !;•  Atlantic  &  P.  Tei.  Co.  v.  Balti- 
more &  O.  R.  Co.,  14  J.  &  S.  (N.  Y.)  377. 
Approved  in  Williams  v.  Missouri,  K.  & 
T.  R.  Co.,  3  Dill.  (U.  S.)  267.  Distin- 
guished IN  Graham  v.  Boston,  H.  &  E.  R. 
Co.,  14  Fed.  Rep.  753.  Explained  in  Wil- 
kinson V.  Delaware,  L.  &  W.  R.  Co.,  20  Am. 
&  Eng.  R.  Cas.  597,  22  Fed.  Rep.  353.  Fol- 
lowed IN  Graham  v.  Boston,  H.  &  E.  R. 
Co.,  118  U.  S.  161 ;  Wilmer  v.  Atlanta  &  R. 
A.  L.  R.  Co.,  2  Woods  (U.  S.)  447  ;  Calla- 
han V.  Louisville  &  N.  R.  Co.,  11  Fed.  Rep. 
536;  Baltimore  &  O.  R.  Co.  v.  Cary,  28 
Ohio  St.  208.  Quoted  in  St.  Louis,  A. 
&  T.  H.  R.  Co.  V.  Indianapolis  &  St.  L.  R. 


1046 


TICKETS  AND  FARES,  20-22. 


h  > 


Co.,  9  Bisi.  (U.  S.)  144 ;  Burger  v.  Grand 
Rapids  &  I.  R.  Co.,  20  Am.  &  Eng.  R.  Gas. 
607.  22  Fed.  Rep.  561  ;  Hay  v.  Alexandria  & 
W.  R.  Co..  4  Hughes  (U.  S.)  331 :  McCabe 
V.  Illinois  G .  R.  Co.,  4  McCrary  (U.  S.) 
492,  13  Fed.  Rep.  827;  Pacific  R.  Co.  v. 
Missouri  Pac.  R.  Co.,  5  McCrary  373 ;  Wil- 
mer  v.  Atlanta  &  R.  A.  L.  R.  Co.,  2  Woods 
409 ;  State  ex  rel.  v.  Milwaukee,  L.  S.  &  W. 
R.  Co.,  45  Wis.  579.  Reviewed  in  Mis- 
souri, K.  &  T.  R.  Co.  V.  Texas  &  St.  L.  R. 
Co.,  4  Woods  360,  10  Fed.  Rep.  497 ;  Black- 
burn V.  Selma,  M.  &  M.  R.  Co.,  2  Flipp.  (U.  S.) 
525 ;  Copeland  v,  Memphis  &  C,  R.  Co.,  3 
Woods  651  ;  Morgan  v.  East  Tenn.  &  V.  R. 
Co.,  4  Woods  523;  Baltimore  &  O.  R.  Go. 
V.  Wightman,  29  Gratt.  (Va.)  431. 

Where  a  company  sells  tickets  beyond  its 
own  line,  to  establish  its  liability  beyond  its 
own  line  it  must  appear  that  it  contracted  as 
principal  for  the  entire  distance,  or  had  some 
interest  in,  or  control  over,  the  transporta- 
tion beyond  its  line.  Otherwise  a  provision 
on  a  ticket  that  the  selling  company  is  only 
liable  for  injuries  on  its  own  route  will  limit 
the  liability  accordingly.  Kerr^an  v.  South- 
ern Pac.  li.  Co.,  41  Am.  &*  Eng,  Ji.  Cas.  28, 
81  Cal.  248,  22  Pac.  Pep.  677. 

The  rule  is  well  settled  that  the  liability 
of  a  carrier  by  contract  can  be  limited  to  its 
own  line ;  but  when  a  company  undertakes 
to  sell  an  excursion  ticket  to  be  used  within 
a  certain  time,  it  must  see  that  the  time 
agreed  upon  is  reasonable,  from  the  stand- 
point of  the  then  existing  circumstances 
and  conditions,  and  that  the  passenger,  by 
the  exercise  of  reasonable  diligence,  may 
complete  his  journey  within  the  time  agreed 
upon.  If  such  time  be  reasonable,  the  com- 
pany selling  SDch  ticket  with  liability  limited 
to  its  own  line  will  not  be  liable  for  delay 
by  other  lines  on  the  route,  and  can  insist 
upon  the  terms  of  the  ticket  when  presented 
after  the  time  specified  therein.  Gulf,  C. 
&»  S.  F.  P.  Co,  V.  Wright,  2  Tex,  Civ.  App, 
463,  21  .?.  W.  Pep.  399. 

20.  Liability  for  delay  or  « other 
cause." — In  the  common  stipulation  on 
tickets,  that  the  company  shall  not  be  liable 
for  delay  in  the  starting  or  arrival  of  trains 
arising  from  accident  or  other  cause,  the 
words  "  other  cause  "  mean  "  other  cause  in 
the  nature  of  accident,"  and  not  "any  cause 
whatever."  Buckmaster  v.  Great  Eastern  P. 
Co..  23  L.  T,  471,  3  Pjf.  &'  C.  T.  Cas.  xxiii, 

A  passenger  taking  a  ticket  expressed  to 
be  "issued  subject  to  the  regulations  in  the 


time  bill,"  which  disclaimed  liability  for  un* 
punctuality,  cannot  recover.  M'Cartan  v. 
North  Eastern  P.  Co.,  54  L./.  Q.  £.  441,  5 
Py.  4-  C.  T.  Cas.  ix. 

21.  Amount  of  liability  for  bng« 
gage. — An  excursion  ticket  limited  liability 
for  loss  of  passenger's  baggage  to  $100.  The 
road  receiving  the  baggage  being  liable,  the 
restriction  as  to  liability  in  the  contract  as 
to  value  was  illegal.  International  &*  G.  N, 
P,  Co,  V.  FoitM,  3  Tex.  Civ,  App.  644,  22  S. 
W.  Pep,  S4I. 

3.  Purchase  of  Tickets. 

22.  Rules  requiring  purchase,  gen- 
erally, i* — Carriers  of  passengers  may  law- 
fully require  those  seeking  to  be  carried  to 
purchase  tickets  when  convenient  facilities 
to  that  end  are  afforded,  to  exhibit  them  to 
the  person  designated  by  the  carrier  for  that 
purpose,  and  to  surrender  them,  after  secur- 
ing their  seats,  when  required  by  the  person 
in  charge.  Such  requirements  are  reason- 
able ones  to  protect  the  carrier  against  im- 
position and  the  fraud  of  its  employes. 
Pullman  Palace  Car  Co.  v.  Reed,  75  ///.  125. 
—Distinguished  in  Louisville,  N.  &  G.  S. 
R.  Co.  V.  Fleming,  14  Lea  (Tenn.)  128. 

The  rule  of  railroad  companies  requiring 
a  ticket  or  full  fare  from  passengers  is  a 
reasonable  one,  and  necessary  in  order  to 
enable  them  to  transact  their  business.  St. 
Louis  6-  C.  P.  Co.  V.  Carroll,  13  ///. 
App.  585. 

A  company  may  establish  and  enforce 
a  regulation  requiring  a  peTsrsn  dc^irirg 
passage  to  procure,  and  \.o  .-  -v;  To'  itsi 
employes,  before  entering  :*.j  .  •  .  ticket 
entitling  him  to  such  pass!>g<;  •tismrgh, 
C.  &»  St.  L,  R.  Ce,  V.  Vandvfii,  'r.i,  576, 
18  Am.  Ry.  Rep.  454. 

A  carrier  may  run  an  excursion  train  at 
reduced  rates,  and  require  passengers  to 
purchase  tickets  as  a  condition  upon  which 
they  obtain  the  benefit  of  such  rates,  and  it 
may  enforce  such  rule  against  all  who  by 
their  own  fault  fail  to  comply  with  it.  Chi- 
cago, St.  L.  6-  P.  P.  Co.  V.  Graham,  3  Ind. 
App.  28,  29  N.  E.  Pep.  170. 

A  carrier  may  demand  prepayment  of  fare, 
but  if  it  does  not,  it  must  be  presumed  to 

*  Duty  of  company  to  sell  Liability  for  in- 
correct information  furnished  by  officials,  see 
41  Am.  &  Eng.  R.  Cas.  35,  abstr. 

Reasonableness  of  rule  requiring  passengers 
to  purchase  tickets  and  exhibit  them,  see  note, 
41  Am.  Dec.  473. 


Kil 


TICKETS   AND   FARES,  23,24. 


1047 


liability  for  un« 

M'Cartan  v. 

r.  Q.  B.  441.  5 

ity  for  bne;* 

imited  liability 
(eto$ioo.  The 
eing  liable,  the 
he  contract  as 
ti0ttal&*G.N, 
\pp.  644,  22  S. 


kits. 

rchase,  gen- 

igers  may  law- 

0  be  carried  to 
enient  facilities 
xhibit  them  to 
carrier  for  that 
:m,  after  secur* 

1  by  the  person 

Its  are  reason- 

ier  against  im« 

its   employes. 

ted,  ^^  III.  125. 
ille.  N.  4  G.  S. 
enn.)  128. 
inies  requiring 
assengers  is  a 
ry  in  order  to 
business.  St. 
arroll,    13   ///. 

Ii  and  enforce 
erson  dw«»rirg 

t'  ':H  ':j  its 
»  V-  .  ticke'^ 
•i  'tisdurgh, 
fit,         iii.  576, 

irsion  train  at 
passengers  to 
in  upon  which 
h  rates,  and  it 
St  all  who  by 
with  it.  Chi- 
raham,  3  Ind. 

lyment  of  fare, 
!  presumed  to 

Liability  for  in- 
>y  officials,  see 

ring  passengers 
hem,  see  note. 


rely  upon  its  lien  on  the  passenger's  bag- 
gage, or  his  integrity  and  responsibility. 
Hurt  V.  Southern  K.  Co.,  40  Miss,  391. 

For  its  own  convenience  and  that  of  the 
public,  a  company  may  miike  reasonable 
rules  and  regulations  for  the  management 
of  its  business  and  the  conduct  of  its  pas- 
sengers. It  may  prescribe  as  a  rule  and 
require  all  persons  before  taking  passage  on 
its  passenger  trains  to  procure  tickets  to 
enable  them  to  ride,  and  in  default  thereof 
to  pay  an  additional  sum,  when  it  has  fur- 
nished proper  conveniences  and  facilities  to 
travelers  for  procuring  tickets.  Poole  v. 
Northern  Pac.  R.  Co.,  16  Or  eg.  261,  19  Pac. 
Rep.  107. 

23.  by  passengers  riding  on 

freight  trains."'  —  Railroad  companies 
have  a  right  to  make  reasonable  regulations 
for  their  business,  but  in  adopting  such 
regulations  regard  must  be  had  to  the  con- 
venience and  interests  of  the  public.  A 
company  may  forbid  the  transportation  of 
freight  and  passengers  on  the  same  trains, 
or  may  require  passengers  on  freight  trains 
to  procure  tickets  in  advance ;  but  reason- 
able facilities  for  procuring  tickets  at  or 
about  train  time  must  be  afTorded,  accord- 
ing to  the  established  usage  of  railroads. 
It  is  not  reasonable  to  provide  that  pas- 
sengers may  travel  on  freight  trains,  but 
afford  them  no  opportunity  to  procun;  tick- 
ets, except  at  such  hours  as  would  make  it 
more  expeditious  to  travel  by  regular  pas- 
senger trains.  Evans  v.  Memphis  &*  C.  R. 
Co.,  56  A/a.  246,  18  Am.  Ry.  Rep.  350.  — 
Reconciled  in  Jones  v.  Wabash,  St.  L.  & 
P.  R.  Co.,  17  Mo.  App.  158. 

It  is  not  an  unreasonable  rule  for  a  com- 
pany to  require  that  persons  desiring  to 
ride  on  freight  trains  shall  procure  tickets 
sold  expressly  for  such  trains.  Illinois  C. 
R.  Co.  V.  Nelson,  59  ///.  no,  11  Am.  Ry. 
Rep.  148. 

A  company  has  a  right  to  adopt  a  regula- 
tion that  all  persons  who  travel  on  freight 
trains  shall  procure  tickets  before  entering 
the  cars;  but  such  a  regulation  imposes 
upon  the  company  the  duty  of  having  the 
ticket  office  open  a  sufficient  length  of  time 

*See  also  Carriage  of  Passengers,  43- 
50. 

Reasonable  rules  that  company  may  make, 
such  as  prohibiting  passengers  from  riding  on 
freight  cars,  requiring  purchase  of  tickets  before 
entering  train,  keeping  ticket  office  open  at 
certain  hours,  etc.,  see  note,  5  L.  R.  A.  817. 


before  the  departure  of  the  train  to  enable 
passengers  to  procure  tickets.  St.  Louis  &* 
S.  E.  R.  Co.  V.  Myrtle,  51  Ind.  566?— Recon- 
CILED  IN  Jones  V.  Wabash,  St.  L.  &  P.  R. 
Co.,  17  Mo.  App.  158. 

Notwithstanding  such  regulation,  if  a  per- 
son desiring  to  take  passage  upon  a  freight 
train  endeavors  to  procure  a  ticket,  but  is 
unable  to  do  so  in  consequence  of  the  ab- 
sence of  the  agent,  he  has  a  right  to  travel 
on  such  train  by  paying  or  offering  to  pay 
the  usual  fare.  St.  Louis  &*  S.  E.  R,  Co.  v. 
Myrtle,  51  Ind.  566.— Quoted  in  Brown  v. 
Kansas  City,  Ft.  S.  &  G.  R.  Co.,  38  Kan. 
634,  16  Pac.  Rep.  942.  Drown  v.  Kansas 
City,  Ft.  S.  &>  G.  R.  Co..  38  Kan.  634.  16 
Pac.  Rep.  942.— Quoting  St.  Louis  &  S.  E. 
R.  Co.  V.  Myrtle,  51  Ind.  574. 

Proof  of  a  single  instance  of  fare  having 
been  accepted  by  a  conductor  of  a  freight 
train,  in  violation  of  a  rule  requiring  persons 
riding  on  such  trains  to  purchase  tickets, 
will  not  justify  a  person  in  disregarding  the 
rule,  if  previous  notice  thereof  has  been 
given  by  posters  in  the  station  building. 
Southern  Kan.  R.  Co.  v.  Hinsdale,  34  Am. 
&*  Eng.  R.  Cas.  256,  38  Kan.  507,  16  Pac. 
Rep.  937. 

But  the  evidence  of  four  witnesses  that 
they  had  on  a  number  of  occasions  taken 
passage  on  freight  trains  without  first  pro- 
curing tickets,  and  that  they  had  paid  on 
the  trains,  is  competent  as  tending  to  show 
that  no  rule  was  in  force  requiring  the  pur- 
chase of  a  ticket  before  entering  the  train. 
Brown  v.  Kansas  City,  Ft.  S.  &*  G.  R.  Co., 
38  Kan.  634,  16  Pac.  Rep.  942. 

A  carrier  has  a  right  to  make  such  rea- 
sonable rules  and  regulations  as  will  tend 
to  the  better  protection  of  its  patrons  and 
to  the  greater  convenience  of  itself ;  and  the 
rule  that  requires  passengers  to  procure 
tickets  before  taking  passage  upon  freight 
trains  is  a  reasonable  regulation.  Brown  v. 
Kansas  City,  Ft.  S.  &*  G.  R.  Co.,  38  Kan. 
634,  16  Pac.  Rep.  942. 

A  passenger  is  not  supposed  to  know  of 
a  regulation  that  passengers  on  freight 
trains  must  procure  tickets  before  starting; 
and  if  he  gets  on  the  train  in  ignorance  of 
such  regulation,  he  is  not  a  trespasser  until 
he  is  informed  thereof.  Brown  v.  Kansas 
City,  Ft.  S.  6-  G.  R.  Co.,  38  Kan.  634,  16 
Pac.  Rep.  942. 

24.  Wlio  may  sell.— The  contract  cre- 
ated between  a  company  and  a  purchaser  of 
a  ticket,  and  the  rights  and  liabilities  of  the 


\w 


1048 


TICKETS  AND   FARES,  25-28. 


<•«« 


m 

I  ,-',1 


w 


parties,  are  the  same  whether  the  ticket  was 
purchased  at  one  of  the  company's  stations, 
or  at  a  station  of  a  contiguous  railroad,  or 
of  any  other  authorized  agent  of  the  com- 
pany. Schopman  v.  Boston  &*  fV.  R.  Corp., 
9  Cush.  (Mass.)  24. 

An  agent  authorized  to  sell  passenger 
ticlcets,  and  stamp  and  deliver  the  same 
upon  receiving  pay  therefor,  cannot  bind 
his  company  by  stamping  and  delivering 
such  tickets  without  the  knowledge  or  con- 
sent of  its  proper  officers  to  a  third  person, 
to  be  sold  by  him,  and  to  be  paid  for  when 
sold.  Frank  v.  Ingalls,  21  Am.  <S-  Eng.  R. 
Cas.  277,  4t  Ohio  St.  560. 

25.  Delivery.— It  is  the  duty  of  a  ticket 
agent  to  exercise  reasonable  care  in  deliv- 
ering a  ticket  to  a  purchaser,  and  if  the 
latter  after  applying  for  his  ticket  and  put- 
ting down  money  for  it  were  called  away,  it 
would  be  no  delivery  to  put  the  ticket  on 
the  counter  in  his  absence,  if  it  did  not  in 
fact  come  to  his  possession.  Quigley  v. 
Central Pac.  R.  Co.,  5  Sawy.  {U.  S.)  107. 

20.  Facilities  for  purcliaso  —  No 
discrlniinatiou.')'  —  Railroad  companies 
carrying  passengers  on  freight  trains  can- 
not make  arbitrary  discriminations,  and 
therefore,  while  they  may  reasonably  require 
that  all  persons  desiring  to  be  thus  carried 
shall  first  procure  tickets,  they  must  afford 
reasonable  facilities  to  that  end,  so  that  all 
may  have  a  like  opportunity  to  procure 
them.  Arnold  v.  Illinois  C.  R.  Co.,  83  ///.  273. 

Railroad  companies  have  no  right  to  dis- 
criminate between  persons,  and  sell  tickets 
to  some  and  refuse  others.  Indianapolis, 
P.  &■*  C.  R.  Co.  v.  Rinard,  46  Ind.  293,  6 
Am.  Ry.  Rep.  328.— APPROVED  IN  Swan  v. 
Manchester  &  L.  R.  Co.,  6  Am.  &  Eng.  R. 
Cas.  327,  132  Mass.  116,  42  Am.  Rep.  432. 

While  a  company  has  the  right  to  require 
extra  fare  from  one  who  pays  on  the  train, 
it  is  bound  to  have  an  agent  at  the  station 
to  sell  tickets ;  failing  in  this,  a  passenger 
required  to  pay  extra  fare  on  the  train  may 
recover  it  back  by  suit,  or,  if  ejected,  may 
recover  damages.  Forset  v.  Alabama  G.  S. 
R.  Co.,  63  Miss.  66. 

27.  Duty  to  keep  ticket  office 
open.f— Railroad  companies  are  required 


*  Company  has  no  right  to  discriminate  be- 
tween persons  in  selling  tickets,  see  note,  5  L. 
R.  A.  818. 

f  Duty  of  railroad  company  to  keep  ticket 
oflSce  open  prior  to  departure  of  trains,  see  53 
Am.  &  Eng.  R.  Cas.  aaj,  abstr. 


to  keep  open  their  offices  for  the  sale  of 
tickets  for  a  reasonable  time  before  the  de- 
parture of  each  train,  up  to  the  time  fixed 
by  its  published  rules  for  its  departure,  but 
not  up  to  the  time  of  actual  departure.  They 
are  required  to  furnish  a  convenient  and 
accessible  place  for  the  sale  of  tickets,  and 
to  afford  to  the  public  a  reasonable  oppor* 
tunity  to  purchase  them.  St.  Louis,  A.  &* 
T.  H.  R.  Co.v.  South,  43  ///.  176.— LIMITING 
Chicago,  B.  &  Q.  R.  Co.  v.  Parks,  18  III. 
460;  St.  Louis,  A.  &  C.  R.  Co.  v.  Dalby,  19 
III.  364.— Approved  in  Swan  v.  Manchester 
&  L.  R.  Co.,  6  Am.  &  Eng.  R.  Cas.  327,  132 
Mass.  1 16,  42  Am.  Rep.  432. 

The  condition  attached  to  the  right  to 
collect  extra  fare  on  a  train,  that  the  com- 
pany shall  give  to  persons  desiring  to  travel 
on  its  trains  a  reasonable  opportunity  to  pur- 
chase tickets,  does  not  require  it  to  keep  its 
ticket  ofhce  open  within  such  time,  before 
the  departure  of  the  train,  that  a  person 
cannot  procure  a  ticket  and  get  upon  the 
train  before  it  begins  to  move.  Evidence 
field  not  to  sustain  the  verdict.  State  v. 
Huttgerford,  34  Am.  &>  Eng.  R.  Cas.  265,  39 
Minn.  6,  38  N.  W.  Rep.  628. 

A  provision  in  a  charter  authorizing  the 
company  "  to  fix,  regulate,  and  receive  the 
tolls  and  charges  by  them  to  be  received  for 
the  transportation  of  property  or  persons  " 
empowers  the  company  to  fix  two  rates  of 
fares,  discriminating  against  persons  who 
pay  to  the  conductor,  and  in  favor  of  those 
who  buy  tickets ;  but  the  company  is  not 
bound  to  keep  its  ticket  offices  open  at  any 
particular  time,  and  the  fact  that  an  office  is 
closed,  preventing  a  passenger  from  procur- 
ing a  ticket,  will  not  entitle  him  to  be  car- 
ried for  the  amount  for  which  a  ticket  would 
have  been  sold.  Bordeaux  v.  Erie  R.  Co., 
8  Hun  (N.  Y.)  579.— Approving  Crocker 
V.  New  London,  W.  &  P.  R.  Co.,  24  Conn. 
249.  Distinguishing  Porter  v.  New  York 
C.  R.  Co..  34  Barb.  (N.  Y.)  353 ;  Nellis  v.  New 
York  C.  R.  Co.,  30  N.  Y.  505;  Chase  v. 
New  York  C.  R.  Co.,  26  N.  Y.  523.  Re- 
viewing Jeffersonville  R.  Co.  v.  Rogers,  38 
Ind.  116,  10  Am.  Rep.  103. — Disapproved 
IN  Swan  V.  Manchester  &  L.  R.  Co.,  6  Am. 
&  Eng.  R.  Cas.  327,  132  Mass.  116,  42  Am. 
Rep.  432. 

28. for   a  reasonable  time.*— 

Under  the  law  and  rules  prescribed  by  the 

*What  is  a  reasonable  time  for  procuring 
tickets  before  departure  of  trains,  see  note,  37 
Am.  &  Eno.  R.  Cas.  ioi. 


TICKETS   AND   FARES,  29. 


lOid 


the  sale  of 
fore  the  de- 
;  time  fixed 
iparture,  but 
rture.  They 
venient  and 
tickets,  and 
lable  oppor- 
Louis,  A.  &* 
.—Limiting 
arks,  i8  III. 
V.  Dalby,  19 

Manchester 
Zm.  327.  132 

the  right  to 
at  the  com- 
ing to  travel 
unity  to  pur- 
it  to  keep  its 
time,  before 
at  a  person 
et  upon  the 
!.  Evidence 
ct.  State  V. 
Cas.  265,  39 

horizing  the 
receive  the 
!  received  for 
or  persons  " 
two  rates  of 
persons  who 
.vor  of  those 
npany  is  not 
open  at  any 
It  an  office  is 
from  procur- 
im  to  be  car- 
ticket  would 
Erie  H.  Co.. 
ING  Crocker 
'o.,  24  Conn. 
/.  New  York 
'Jellis  V,  New 
>5;  Chase  v. 
i.  523.  Re- 
'.  Rogers,  38 

ISAPPROVED 

..  Co.,  6  Am. 
1 16,  42  Am. 

le  time.*— 

ribed  by  the 

for  procuring 
I  see  note,  37 


railroad  commission  of  Georgia,  it  is  the 
duty  of  companies  to  keep  their  ticket  of« 
ficcs  open  for  the  sale  of  tickets  for  a  rra- 
sonal)le  time  before  the  departure  of  trams 
from  all  stntions,  provided  that  offices  at 
way  stations  may  be  closed  one  minute 
before  the  arrival  of  trains;  and  it  is  the 
duty  of  passengers  to  use  proper  diligence 
in  supplying  themselves  with  tickets  before 
getting  upon  the  trains.  Central  li.  6-  B, 
Co,  V.  Strickland,  52  Am.  &•  En^.  R,  Cas, 
216,  90  Ga.  562,  16  S.  E.  Hep,  352. 

And  they  are  required  to  keep  their  of- 
fices open  fo-  the  sale  of  tickets  for  a  rea- 
sonable time  before  the  departure  of  each 
train  and  up  to  the  publisiied  time  for  its 
departure,  but  not  up  to  the  time  of  actual 
departure.  Chicago,  R.  I,  &*  P.  R.  Co.  v. 
Brisbane,  24  ///.  App,  463.  St,  Louis,  A.  &* 
C.  R.  Co.  V.  Dalby,  19  ///.  352. 

Where  a  company  adopts  a  rule  prohibit- 
ing passengers  from  being  carried  on  its 
trains  without  tickets,  it  must  open  the 
ticket  office  a  reasonable  time  in  advance 
of  the  hour  fixed  for  the  departure  of  the 
train.  Should  it  fail  to  do  so,  a  person  de- 
siring to  take  passage  will  have  the  right  to 
enter  a  car  and  be  carried  to  his  place  of 
destination,  on  payment  of  the  regular  fare 
to  tlie  conductor.  Illinois  C.  R,  Co,  v.  John- 
son, 67  ///.  312.— Followed  in  Illinois  C. 
R.  Co.  V.  Cunningham,  67  III.  316. 

A  company  has  the  power  to  make  and 
enforce  a  rule  or  regulation  requiring  per- 
sons desiring  to  ride  upon  its  freiglit  trains 
to'provide  themselves  with  tickets;  but  in 
all  such  cases  the  company  must  furnish 
convenient  facilities  to  the  public  for  the 
purchase  of  tickets,  by  keeping  open  the 
ticket  office  a  reasonable  time  in  advance  of 
the  hour  fixed  by  its  time-table  for  the  de- 
parture of  trains.  Southern  Kan,  R,  Co,  v, 
Hinsdale,  34  Am.  &»  Eng.  R.  Cas.  256,  38 
Kan.  507,  16  P^c.  Rep.  937. 

Where  a  company  makes  a  rule  requiring 
passengers  to  purchase  tickets  before  en- 
tering cars,  it  must  keep  its  ticket  office 
open  a  reasonable  time  to  allow  them  to  do 
so.  Brown  v.  Kansas  City,  Ft,  S.  &*  G.  R. 
Co.,  38  Kan.  634,  16  Pac.  Rep.  942. 

What  is  a  reasonable  time  to  keep  the 
ticket  ofliice  open  for  the  purchase  of  tickets 
is  a  question  for  the  jury.  Du  Laurans  v. 
5/.  Paul  &*  P.  R.  Co.,\l  Minn,  49  {Gil,  29). 

The  failure  of  a  company  to  allow  passen- 
gers a  reasonable  time,  after  the  opening  of 
a  ticket  office,  for  the  purchase  of  tickets 


and  boarding  the  cars,  is  negligence.  Gulf, 
C.  &*  S,  F.  R.  Co.  V.  Fox.  ( Tex.)  33  Am.  &* 
Eng.  K,  Cas.  543. 6  S.  W.  Rep.  569. 

20.  for  rialf  hour  prior  to  dc- 

partiire.— Kan.  C<?  1.  St.  1889,  par.  1325, 
imposes  the  duty  upon  companies  of  keep- 
ing ticket  offices  open  with  an  agent  ready 
upon  call  to  sell  tickets,  thirty  minutes  prior 
to  the  departure  of  trains,  before  conductors 
are  authorized  to  collect  excess  fare  from 
passengers  wlio  have  entered  the  cars  with- 
out such  tickets.  Atchison,  T.  6*  .S'.  F.  R. 
Co.  V.  Hague,  50  Kan.  40,  3 1  Pac.  Rep.  698. 

By  the  general  laws  of  Texas  (18  Leg.  ''o), 
companies  art  required  to  keep  open  their 
ticket  offices  for  one  half  hour  before  the 
departure  of  trains,  and  are  allowed  to  col- 
lect extra  fare  from  those  who  fail  to  pur- 
chase tickets  at  offices  thus  Vept  open. 
Plaintiff  arrived  at  defendants' station  within 
the  half  hour  before  the  regular  time  for  the 
departure  of  the  train  and  found  the  ticket 
office  closed.  The  train  on  this  day  was 
about  an  hour  late.  The  office  was  not 
kept  open  for  thirty  minutes  before  the 
train  actually  left  and  he  entered  the  cars 
without  a  ticket.  Upon  his  refusal  to  pay 
the  extra  fare  demanded  of  passengers  not 
provided  with  tickets,  he  was  ejected  by  the 
conductor.  Held,  that  the  company  had  no 
authority  to  demand  this  extra  fare  when  it 
failed  to  observe  the  statute,  even  though 
the  passenger  did  not  apply  for  his  ticket 
during  the  specified  time,  and  if  it  eject 
one  thus  refusing  to  pay  the  extra  fare  it  is 
liable.  Missouri  Pac.  R.  Co.  v.  McClana- 
han,  rj  Am.  &»  Eng.  R.  Cas.  82,  66  ZV.r. 
530,  I  S.  W.  Rep.  576.— Reviewed  in  For- 
dyce  V.  Manuel,  82  Tex.  527. 

Sayles's  Tex.  Civ.  St.  art.  4258,  §  91,  is  not 
complied  with  by  the  mere  keeping  open  of 
the  ticket  office  for  half  an  hour  prior  to  the 
departure  of  the  train.  There  must  be  in 
the  office  an  agent  to  furnish  and  sell  tickets 
to  persons  desiring  to  buy.  Fordyce  v. 
Manuel,  82  Tex.  527.  18  S.  W.  Rep.  657.— 
Reviewing  Missouri  Pac.  R.  Co.  v.  Mc- 
Clanahan,  66  Tex.  530. 

Unless  such  agent  is  kept  at  the  ticket 
office,  and  if  a  passenger,  after  applying  at 
the  office  and  not  being  able  to  get  a  ticket, 
enters  a  car,  he  cannot  be  charged  in  excess 
of  three  cents  a  mile.  The  conductor  has 
no  right  to  exact  more,  and  to  put  the  pas- 
senger off  the  train  for  refusing  to  pay 
more  is  unlawful.  Fordyce  v.  Manuel,  82 
Tex.  527,  18  S.  W.  Rep.  657. 


Itt 


1060 


TICKETS  AND   FARES,  30-33. 


ly 


I 


t  .; 


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P. 


IH 


% 


,i' 


30.  Terms  varied  or  niodlfled  by 
ticket  agent.— The  presumption  ii  that 
a  ticket  a^;eiit  at  a  way  station  has  no  au- 
thority to  change  or  modify  contracts  be« 
tween  the  compHny  and  through  passengers, 
and  the  onus  of  rebutting  this  presumption 
rests  on  the  plaintiff.  McC'lure  v.  Philadel- 
fhia,  W.  &-  B.  R.  Co.,  34  Md.  532.  —  Dis- 
tinguished IN  Murdock  V.  Boston  &  A.  R. 
Co.,  21  Am.  &  Eng.  R.  Cas.  268,  137  Mass. 
293,  so  Am.  Rep.  307. 

Autliority  in  an  agent  to  vary  the  terms 
of  a  ticket  by  verbal  contract  will  not  be 
presumed.  Boict  v.  Hudson  River  R.  Co., 
61  Barb.  (N.  K.)6ii. 

A  conversation  between  the  holder  of  a 
ticket  and  the  ticket  agent,  subsequent  to 
the  time  it  is  purclinsed  and  paid  for,  in 
respect  to  its  validity,  though  sufficient  in 
form  to  make  a  contract,  is  without  consid- 
eration, and  is  nudum  pactum;  and  there 
is  no  binding  contract  that  will  make  the 
ticket  good  on  a  day  subsequent  to  its  date, 
especially  when  the  amount  of  the  fare  has 
een  legally  increased  in  the  intermediate 
time.  Boice  v.  Hudson  River  R.  Co.,  61 
Barb.  (N.  F.)  611. 

31.  by  gatekeeper.  —  In  the  ab- 
sence of  proof  that  the  gatekeeper  had 
authority  to  vary  the  terms  of  contracts  for 
the  company,  the  passenger  cannot  get  rid 
of  tiie  conditions  of  his  contract  by  show- 
ing that  he  relied  on  the  actual  or  implied 
direction  to  take  the  train,  given  either 
through  the  belief  of  the  gatekeeper  that 
the  ticket  was  good  for  the  train,  or  through 
his  negligence,  ignorance,  or  mistake.  John- 
son  V.  Philadelphia,  W.  <S-  B.  R.  Co.,  t&Am. 
&^  Eng.  R.  Cas.  304,  63  Md.  106. 

32.  No  opportunity  to  purchase 
ticket. — A  company  is  not  bound  to  keep 
a  ticket  office  open  each  and  every  minute 
up  to  the  time  it  may  lawfully  close  the 
same,  provided  a  reasonable  opportunity  is 
afforded  all  persons  desiring  tickets  to  ob- 
tain them ;  nor  is  a  passenger  bound  to  wait 
at  a  ticket  office  an  unreasonable  time  for 
the  appearance  of  the  agent  to  sell  him  a 
ticket,  or  to  call  again  and  again  ai  the  office 
to  procure  one,  provided  he  endeavors,  in 
good  faith  and  due  diligence,  to  do  so  before 
the  time  for  closing  the  office  arrives.  In 
each  case  it  is  a  question  for  the  jury  whether 
or  not  the  parties,  respectively,  performed 
the  corresponding  duties  devolving  upon 
them,  and  it  is  not  the  province  of  the  court 
to  decide  what  particular  facts  will  consti- 


tute negligence  or  diligence  by  either  party, 
and  thus  to  restrict  the  jury  in  the  exercise 
of  their  duty  in  this  respect.  Central  K.  &* 
B.  Co.  v.  Strickland,  52  Am.  &*  Eng.  R.  Cas. 
216.  90  Ga.  562,  16  S.  E.  Rep.  352. 

If  a  passenger  has  not  been  afforded  a 
reasonable  opportunity  to  purchase  a  ticket 
at  a  station  where  his  journey  began,  he  is 
not  bound  to  leave  the  train  at  a  station 
»n  route  and  purchase  a  ticket  back  to  the 
station  whence  he  started  and  another  to 
his  destination.  If  he  is  rightly  on  the  train 
without  a  ticket,  it  is  his  right  to  complete 
his  intended  journey  by  paying  the  ticket 
rale  for  his  fare.  Central  R,  &*  B.  Co.  v. 
Strickland,  52  Am.  &*  Eng.  R.  Cas.  3i6,  90 
Ga.  562,  16  S.  E.  Rep.  352. 

Where  a  passenger  applies  for  a  ticket  and 
it  is  not  furnished,  but  a  certificate  is  given 
him  by  the  agent  to  the  effect  that  the  tickets 
are  "all  out,"  which  he  shows  to  the  con- 
ductor, the  fact  may  be  shown  by  the  evi- 
dence of  the  station  agent,  and  the  certificate 
should  be  evidence  to  the  conductor  that 
the  passenger  was  not  in  fault  in  failing  to 
have  a  ticket,  St.  Louis,  A.  &»  C.  R.  Co.  r. 
Dalby,  19  ///.  353. 

If  a  passenger,  through  the  fault  of  the 
carrier,  is  unable  to  procure  a  ticket,  in 
compliance  with  the  carrier's  rule  requiring 
all  who  desire  to  secure  excursion  rates  to 
purchase  tickets  before  entering  the  train, 
he  may  take  passage  on  the  train  and  upon 
the  tender  of  the  excursion  ticket  fare  he 
will  be  entitled  to  all  the  rights  and  privi- 
leges that  a  ticket  would  afford  him.  Chi- 
cago, St.  L.  &»  P.  R.  Co.  V.  Graham,  3  Ind. 
App.  38,  29  A^.  E.  Rep.  170. 

4.  Production,  Surrender,  and  Taking  Up. 

33.  Rule  requiring  production.*— 

The  holders  of  annual  tickets  are  as  much 
bound  to  produce  them  as  ordinary  passen- 
gers, under  a  by-law  providing  that  "  each 
passenger  booking  his  place  will  be  fur- 
nished with  a  ticket,  which  he  is  to  show 
and  deliver  up  when  required,  to  the  guard." 
Woodard  v.  Eastern  Counties  R.  Co.,  7  Jur. 
N.  S.  971,  30  L.J.  M.  C.  126,  9  W.  R.  660, 4 
L.  T.  336. 

A  company,  in  order  to  enforce  a  by-law 
as  to  the  production  of  tickets,  must  bring 
Itself  strictly  within  the  terms  of  svch  by- 

*  Passenger  may  be  compelled  to  exhibit 
ticket,  see  note,  16  Am.  &  Eng.  R.  Cas.  379. 

Duty  of  passengers  to  exhibit  and  surrender 
tickets  when  requested,  see  note,  5  L.  R.  A.  818. 


TICKETS  AND  FARES,  34-80. 


lO&l 


e  by  either  party, 
y  in  tlie  exercise 
t.  Central  A\  &* 
I.  &*  Eng.  K.  Cas. 

been  afforded  a 
purchaie  a  ticket 
ney  began,  he  is 
rain  at  a  station 
elect  back  to  the 
I  and  another  to 
jhtly  on  tlie  train 
iglit  to  complete 
laying  the  ticket 
Ji.  &»  B.  Co,  V. 
g.  R.  Cas,  216,  90 

;s  for  a  ticket  and 
irtificate  is  given 
ct  that  the  tickets 
lows  to  the  con- 
lown  by  the  evi- 
ind  the  certificate 
;  conductor  that 
ault  in  failing  to 
4,  &•  C.  R.  Co.  r. 

1  the  fault  of  the 
cure  a  ticket,  in 
r's  rule  requiring 
xcursion  rates  to 
itering  the  train, 
le  train  and  upon 
)n  ticket  fare  he 
rights  and  privi< 
fford  him.  C/it- 
,  Graham,  3  Ind, 

and  Taking  Up, 

production.*— 

^ets  are  as  much 
ordinary  passen- 
iding  that  "each 
ace  will  be  fur- 
:h  he  is  to  show 
ed,  to  the  guard." 
ties  R.  Co.,  7  Jur. 
86,  9  W.  R.  660, 4 

enforce  a  by-law 
:kets,  must  bring 
erms  of  svch  by- 

ipelled  to    exhibit 
G.  R.  Cas.  379. 
libit  and  surrender 
lote,  5  L.  R.  A.  818. 


law.  JtHHingt  V.  Grtat  Northern  R.  Co.,  3$ 
L./.  Q.  B.  1$.  ia/«r.  N.  S.  331,  L.  R,  1  Q. 
B.  7,  44  W'  R'  a8.  13  L.  T.  231. 

A  rule  requiring  the  production  of  a  ticket 
as  evidence  of  the  right  of  a  passenger  to 
ride  is  reasonable,  and  one  with  "vhich  the 
traveling  public  is  familiar.  Van  A^usan  v. 
Grand  Trunk  R.  Co.,  97  Mich.  430  56  N, 
W.  Rep.  848. 

A  regulation  requiring  passengers  to  ex- 
hibit their  tickets  when  requested  to  do  so 
by  the  conductor,  or  be  removed  from  the 
cars,  is  a  reasonable  and  lawful  rule ;  and 
upon  a  refusal  to  comply  with  [such  request 
it  is  immaterial  whether  or  not  the  con- 
ductor has  before  seen  the  passenger's  ticket 
or  knows  that  he  has  purchased  one.  Hib- 
bard  V.  New  York  &*  E.  R.  C*;.,  1 5  N.  Y.  455. 
—Distinguished  in  Hardy  v.  New  YorkC. 
&  H.  R.  R.  Co.,  34  N.  Y.  S.  R.  902,  38  Hun 
607,  mem.,  12  N.  Y.  Supp.  $5.  Followed  in 
Townsend  v.  New  York  C.  &  H.  R.  R.  Co., 
56  N.  Y.  29s ;  Pease  v.  Delaware,  L.  &  W. 
R.  Co.,  26  Am.  &Eng.  R.Cas.  185, 101  N.  Y. 
367,  54  Am.  Rep.  699.  Quoted  in  Weaver 
V.  Rome,  W.  &  O.  R.  Co.,  3  T.  &  C.  (N. 
Y.)  270.  Reviewed  in  Louisville,  N.  &  G. 
S.  R.  Co.  V.  Fleming,  14  Lea  (Tenn.)  128.— 
Chicago  &*  A.  R.  Co.  v.  Willard,  31  ///. 
App.  43S- 

A  passenger  who  has  paid  his  fare  and 
has  lost  his  ticket  cannot  be  ejected  from 
the  train  upon  his  failure  to  produce  his 
ticket  for  inspection  by  the  conductor,  there 
being  upon  the  ticket  no  condition  requir- 
ing its  production,  and  no  contract  for  its 
production  having  been  entered  into.  That 
is  not  a  refusal  to  pay  his  fare  under  y.  Vict, 
c.  29,  §  248  (D).  (Osier,  J.  A.,  dissenting.) 
Reaver  v.  Grand  Trunk  R.  Co.,  58  Am.  6* 
Eng.  R.  Cas.  42,  20  Ont.  App.  476.— Distin- 
guishing Fulton  V.  Grand  Trunk  R.  Co.,  17 
U.  C.  Q.  B.  428.  Quoting  Butler  v.  Man- 
chester. S.  &  L.  R.  Co.,  33  Am.  &  Eng. 
R.  Cas.  551.  21  Q.  B.  D.  207.  Reviewing 
Jennings  v.  Great  Northern  R.  Co.,  L.  R. 
I  Q.  B.  7. 

34.  Rule,  how  waived.— A  company 
which  allows  servants  to  enter  a  train  with- 
out showing  tickets,  upon  an  assurance  from 
their  master  that  he  has  their  tickets,  is 
estopped  from  pleading,  as  a  defense  from 
an  action  by  the  master  for  afterwards  ex- 
pelling the  servants,  a  by-law  providing  that 
passengers  shall  not  enter  trains  without 
ti'.^ets,  which  they  must  show  when  re- 
quired.  Jennings  v.  Great  Northern  R.  Co., 


3S  L'J'  Q'  B,  1$,  tz/ur.  N,  S.  331.  L,  X.  1 
Q,  B.  7,  44  W.  R.  aS.  13  L,  T.  231. 
30.  BeaHonable  time  to  produce.* 

—In  case  the  passenger  has  mislaid  his 
ticket  he  is  entitled  to  a  reasonable  time 
in  which  to  find  it,  and  such  reasonable 
time  as  a  general  rule  is  the  time  re- 
quired for  the  train  to  run  from  one  sta- 
tion to  another.  Chicago  &*  A.  R,  Co.  v. 
Willard,  31  ///.  App.  435. 

The  conductor  of  a  train  cannot  be  re- 
quired to  search  the  pockets  of  an  infirm 
passenger  for  his  ticket,  and,  of  course,  if 
he  consents  to  search  a  particular  pocket 
at  the  request  of  the  passenger,  he  is  not 
bound  to  search  further,  it  being  the  duty 
of  the  passenger  to  produce  and  deliver  his 
own  ticket  on  demand.  Louisville,  N.  &* 
G.  S.  R.  Co.  V.  Fleming,  18  Am.  &»  Eng.  R. 
Cas.  347,  14  Lea  (Tenn.)  128. 

The  conductor  of  a  passenger  train  is 
bound  to  wait  a  reasonable  time  after  a  re- 
quest for  a  passenger's  ticket  to  enable  him 
to  produce  it;  and  what  is  a  reasonable 
time  therefor  is  a  question  for  the  jury. 
International  &*  G.  N.  R.  Co.  v.  Wilkes,  34 
Am.  6-  Eng.  R.  Cas.  331,  68  Tex.  617,  5  i^ 
W.  Rep.  491. 

30.  Eixliibition  before  entering 
train.— A  company  has  the  right  to  make 
police  regulations  for  the  government  and 
control  of  its  business  in  connection  with  its 
depots,  among  the  regulations  being  one  that 
the  gatekeeper  at  a  depot  shall  not  permit 
any  passengers  togo  through  the  gate  except 
those  entitled  by  their  tickets  to  go  upon  a 
particular  train.  Watkins  v.  Pennsylvania 
R.  Co.,  S2  Am. &*Efig.  R.  Cas.  159,  21  D.  C.  i. 

It  is  competent  for  a  company  to  estab- 
lish a  rule  requiring  passengers  to  produce 
tickets  before  entering  the  cars,  and  it  may 
direct  the  brakemen  to  require  observance 
of  the  rule,  and  they  may  execute  it  in  a 
reasonable  manner  without  consulting  the 
conductor.  Chicago,  B.  &*'  Q.  R.  Co.  v. 
Soger,  I  ///.  App.  472- 

A  railroad  may,  for  its  protection,  require 
passengers  to  exhibit  their  tickets  to  the 
gateman  in  passing  to  the  train,  and  the 
latter  may,  in  the  exercise  of  his  judgment, 
refuse  to  allow  any  one  to  pass  through  the 
gate  on  a  defaced  ticket.  But  the  company 
is  responsible  for  the  wrongful  and  injurious 
exercise  of  judgment  on  the  part  of  its 

*  Ejection  for  failing  to  exhibit,  see  notes,  34 
AM.  &  Eng.  R.  Cas.  338  ;  33  ■/<'.  556 ;  lild.  345. 


1052 


TICKETS  AND   FARES,  37-80. 


i'**»M 


•gent*.  Northtrn  C.  R,  Co.  v.  O'Conntr, 
S3  Am.  &*  Eng.  R.  Cat.  176,  76  Md.  207,  16 
L.  R,  A.  449.  34  Atl.  R*p.  449. 

The  exhibition  of  his  ticket  by  the  pas- 
senger, upon  entering  the  train,  to  the  eni- 
pIoy£  in  attendance  for  that  purpose,  will 
give  to  hin  no  other  or  different  rights 
than  if  he  had  not  exhibited  it.  Louisvillt, 
N.  A*  G.  S.  R.  Co.  V.  Filming,  18  Am.  &* 
Eng.  R.  Cat.  347,  14  Lia  (Tinn.)  138. 

A  rule  adopted  by  a  company  requiring 
conductors  to  station  their  bralcemen  and 
porters  on  the  depot  platforms  and  to  allow 
no  one  to  get  aboard  without  a  ticket  or 
pass  is  a  reasonable  regulation,  and  is  not 
in  conflict  with  the  Texas  Act  of  April  10, 
1883,  §  9,  nor  is  it  in  any  way  affected  by 
said  act.  nor  in  conflict  with  any  law  of  the 
state.  International  &•  G.  N.  R.  Co.  v.  Gold- 
stein, 2  Tex.  App.  {Civ.  Cat.)  206. 

37.  Surrender  of  ticket.  — A  rule 
requiring  passengers  to  surrender  their 
tickets  to  the  conductor  when  called  for  is 
a  reasonable  one,  and  may  be  enforced. 
Illinois  C.  R,  Co.  v.  Whittemore,  43  ///.  420. 

Where  the  facts  are  undisputed  the  reason- 
ableness of  a  regulation  requiring  passen- 
gers to  surrender  their  tickets  after  passing 
the  last  station  before  reaching  their  place 
of  destination,  without  receiving  a  check  or 
other  evidence  of  their  right  to  ride,  is  a 
question  of  law,  and  it  is  error  to  submit  it 
to  the  jury  as  a  question  of  fact.  Vedder 
V.  Fellows,  20  N.  V.  126. 

It  seems  that  such  a  regulation  is  reason- 
able and  valid,  but  the  question  was  not 
passed  upon  by  the  whole  court.  Vedder  v. 
Fellows,  20  N.  V.  1 26. 

Where  a  passenger  leaves  the  train  without 
paying  the  fare  or  surrendering  his  ticket  on 
demand,  he  is  liable  to  an  action  for  the 
amount  of  the  fare.  Northern  R.  Co.  v. 
Fii^e,  22  Bard.  {N.  Y.)  130. 

A  passenger  who  holds  a  ticket  cannot 
maintain  an  action  against  the  carrier  for 
failing  to  carry  him  on  his  ticket,  where  he 
declines  to  surrender  it  and  voluntarily  pays 
his  fare  to  the  conductor.  Betkea  v.  North- 
eastern R.  Co.,  26  So.  Car.  91,  i  S,  E. 
Rep.  372. 

38. before  seat  is  furnished.— 

A  passenger  who  exhibits  a  ticket  and  de- 
mands a  seat  has  a  right  to  have  the 
demand  complied  with  prior  to  the  sur- 
render of  the  ticket,  as  it  consti'utes  the  best 
evidence  of  his  contract  with  the  comppry 
for  a  safe  and  comfortable  transportat'on. 


Davis  V.  iCansas  City,  St.  /.  5«  C.  B.  R,  Co.. 
53  Mo.  317,  12  Am.  Ry.  Rep.  463. 

But  the  passenger  must  rely  on  the  con- 
tract as  evidenced  by  the  ticket,  and  if  there 
be  a  non-compliance  with  its  terms,  he  must 
abandon  the  contract  and  quit  the  train  as 
soon  as  a  suitable  opportunity  offers.  He 
cannot  ride  to  an  intermediate  point  where 
a  seat  is  furnished  him,  and  insist  on  paying 
his  fare  from  there  on  and  refuse  to  surren- 
der his  ticket ;  and  if  he  is  ejected  from  the 
train  he  cannot  m^iintain  an  action  for  a 
breach  of  the  contract  as  evidenced  by  his 
ticket.  It  might  be  otherwise  if  he  declared 
on  a  new  contract  to  carry  him  from  the 
place  where  a  seat  is  furnished.  Davis  v. 
Kansas  City,  St.  J.  «S-  C.  B.  R.  Co.,  53  Mo. 
317,  12  Am.  Ry.  Rep.  463. 

30.  Taking  up— Non-transferable 
tickets."* — Where  a  non-transferable  ticket 
contains  a  condition  that,  upon  the  failure 
of  the  holder  to  comply  with  the  agreement, 
either  of  the  companies  over  whose  road  it 
is  sold  may  refuse  to  accept  it,  a  conductor 
has  no  right  to  take  it  up,  but  may  merely 
refuse  it.  If  it  is  taken  up  the  measure  of 
damages  is  the  value  of  the  ticket.  Post  v. 
Chicago  &*  N.  IV.  R.  Co.,  9  Aw.  &*  Eng. 
R.  Cas.  345,  14  Neb.  1 10,  15  A^.  W.Rep.  225, 
45  Am.  Rep.  100. 

A  passenger  rode  to  an  intermediate 
point  on  a  ticket  which  was  canceled  for  the 
whole  route.  He  voluntarily  left  the  train 
at  the  intermediate  point,  and  subsequently 
offered  the  ticket  for  passage  for  the  rest  of 
the  journey,  but  the  conductor  took  it  up, 
refused  to  allow  him  to  ride,  and  compelled 
him  to  leave  the  train.  Held,  that  plaintiff 
might  have  retained  the  ticket;  that  the 
conductor  waived  all  right  to  retain  it  by 
denying  plaintiff's  right  to  ride  thereon. 
Vankirk  v.  Pennsylvania  R.  Co.,  76  Pa, 
St.  66. 

A  ticket  conditioned  that  if  presented  by 
any  one  except  the  original  holder  it  shall 
be  void  is  valid,  Drummond  v.  Southern 
Pac.  Co.,  7  Utah  118,  25  Pac.  Rep.  733. 

The  fact  that  the  ticket  is  not  signed  by 
the  original  purchaser  makes  no  difference, 
since  the  purchaser,  in  accepting  a  ticket, 
where  the  contract  is  set  out  in  full, 
accepts  the  terms  of  the  contract  and  is 
bound  by  them.  Drummond  v.  Southern 
Pac.  Co.,  7  Utah  118,  25  Pac.  Rep.  733. 

The  conductor  had  a  right  to  take  up  the 
ticket  presented  by  a  person  other  than  the 

*  See  also  post,  60. 


TICKETS  AND   FARES,  40, 41. 


10J3 


&»  C.  B.  R.  Co- 

463- 

ely  on  the  con- 
ket,  and  if  there 

termi,  he  mutt 
uit  the  train  ai 
lity  offers.  He 
Ate  point  where 
insist  on  paying 
efuse  to  surren- 
!jected  from  the 
an  action  for  a 
irictenced  by  his 
se  if  he  declared 

him  from  the 
shed.     Davis  v. 

K.  Co.,  S3  Mo. 

-transferable 

ansferable  ticket 
ipon  the  failure 
I  the  agreement, 
er  whose  road  it 
it,  a  conductor 
but  may  merely 
>  the  measure  of 
!  ticket.  Post  V. 
9  Am.  &•  Eng. 
N.  W.  Rtp.  22$, 

m  intermediate 
I  canceled  for  the 
ily  left  the  train 
ind  subsequently 
ge  for  the  rest  of 
ictor  took  it  up, 
e,  and  compelled 
/(i,  that  plaintif! 

ticket;  that  the 
t  to  retain  it  by 
io  ride  thereon. 

Jf.    Co.,  76  fa. 

t  if  presented  by 
il  holder  it  shall 
ond  V.  Southern 
xc.  Rep.  733- 
is  not  signed  by 
es  no  difference, 
cepting  a  ticket, 
set  out  in  full, 
contract  and  is 
<ond  V,  Southern 
ic.  Rep.  733. 
ht  to  take  up  the 
n  other  than  the 

59^ 


origmal  purchaser,  and  plaintiff  could  not 
have  been  damaged,  because  the  ticket  was 
returned  to  him.  Drummond  v.  Southern 
Pac.  Co.,  7  Utah  1 18,  25  Pac.  Rtp.  733. 

A  contract  under  whicli  a  ticket  was  pur- 
chased, providing  that  it  sliould  be  forfeited 
if  presented  by  any  person  other  than  the 
original  purchaser,  is  violated  by  the  taking 
up  of  the  ticket  from  such  purchaser  by  the 
conductor,  who  refused  to  accept  means  of 
identification  offered,  and  insisted  that  the 
holder  was  in  wrongful  possession  thereof, 
and  by  the  ratification  of  his  acts  by  the 
general  passenger  agent  of  the  road,  to 
whom  all  the  circumstances  of  the  case 
were  reported.  Norfolk  &*  W.  R,  Co.  v. 
Anderson,  58  Am.  &•  Enjf,  R,  Cas,  53,  90  Va. 
I,  17  S.E.  Rep.  757 

5.  Stop-over  Prrvileget. 

40.  Right  to  Htop  over  on  ordinary 
tickets.'*'— If  a  passenger's  ticket  is  silent 
as  to  the  privilege  of  stopping  over  at 
an  intermediate  point,  but  nevertheless 
he  stops,  he  cannot  afterwards  resume  the 
journey  on  the  same  ticket.  Drew  v.  Cen- 
tral Pac.  R.  Co.,  51  Cat.  425,  12  Am.  Rjf. 
Rep.  222. 

By  leaving  the  train  before  he  has  arrived 
at  the  point  to  which  his  ticket  entitles  him 
to  ride,  a  passenger  voluntarily  terminates 
his  contract  with  the  company  to  carry  him 
to  such  point.  Drew  v.  Central  Pac.  R.  Co., 
SI  Cal.  425,  12  Am.  Ry.  Rep.  222. 

In  the  absence  of  any  agreement  to  the 
contrary,  the  purchaser  of  a  ticket  is  only 
entitled  to  one  continuous  passage  upon  it. 
When  he  has  selected  his  train  and  com- 
menced his  journey,  he  has  no  right  to 
leave  at  an  intermediate  point  without  the 
carrier's  assent,  and  afterwards  demand  that 
the  contract  be  completed  on  another  train. 
Wyman  v.  Northern  Pac.  R.  Co.,  22  Am.  &* 
Eng.  R.  Cas.  402,  i\  Minn.  210,  25  A';  W. 
Rep.  349. 

If  a  company  sells  to  a  passenger  a  ticket 
to  go  over  the  road  by  a  through  train, 
such  passenger  has  no  right,  without  the  as- 
sent of  the  company,  to  stop  at  a  way  sta- 
tion, and  demand,  by  virtue  of  his  ticket,  or 
conductor's  check  given  in  lieu  thereof,  a 
continuation  of  his  passage  over  the  residue 
of  the  road.     State  v.  Overton,  24  N.  J.  L. 

*  Passenger's  right  to  stop  over,  see  note,  18 
Ah.  &  Eno.  R.  Cas.  308. 


43S— Distinguished  in  Johnson  v.  Con- 
cord  R.  Corp.,  46  N.  H.  213. 

A  ticket  purporting  by  a  statement  on  its 
face  to  be  from  one  station  named  to  an- 
othvr  station  named  does  not  import  a  right 
to  make  the  journey  between  the  stations  by 
different  trains.  Such  ticket  imports  only 
a  single  continuous  trip.  Oil  Creek  &*  A. 
R.  R.  Co.  V.  Clark,  73  Pa.  St.  231,  6  Am.  Ry. 
Rep.  476.  —  Ai'PROViNO  Dietrich  v.  Penn- 
sylvania R.  Co.,  71  Pa.  St.  432.— DiSTiN* 
GuiSHKD  IN  Tarbcll  v.  Northern  C.  R.  Co., 
24  Hun  (N.  Y.)  51. 

The  contract  for  the  transportation  of  a 
passenger  is  an  entirety,  and  if  he  stops  off 
at  an  intermediate  station  without  a  stop- 
over privilege  he  thereby  loses  the  right  to 
be  carried  over  the  remainder  of  the  journey. 
Stone  V.  Chicago  &■*  N,  IV.  R.  Co.,  47  Iowa 
82,  17  Am.  Ry.  Rep.  461.— Reconciling 
Palmer  v.  Charlotte,  C.  &  A.  R.  Co.,  3  So. 
Car.  580. 

41.  On  (tpeciul  tickets.'*' —  Plaintiff 
bought  a  round-trip  excursion  ticket,  and 
on  tiie  return  trip  stopped  off  at  an  inter- 
mediate point,  and  offered  the  ticket  for  pas- 
sage on  a  train  the  next  day.  A  regulation 
of  tlie  company  provided  that  stop-over 
checks  should  not  be  given  on  excursion 
tickets,  //eld,  that  the  conductor  had  the 
right  to  remove  plaintiff  from  the  train,  and 
he  could  not  recover  damages,  if  no  unneces- 
sary violence  was  used.  All  he  could  demand 
under  his  contract  was  a  continuous  pas- 
sage each  way.  Terry  v.  Flushing,  N.  S. 
5-  C.  R.  Co.,  13  //««  (A'.  V.)  359.— Distin- 
guished IN  Ward  V.  New  York  C.  &  H.  R. 
R.  Co.,  56  Hun  268,  30  N.  Y.  S.  R.  604,  9 
N.  Y.  Suf.p.  377. 

A  "  drover's  ticket,"  sold  at  half  the  regu- 
lar price,  and  good  only  in  the  drover's 
hands,  for  one  seat  between  points,  and  lim- 
ited  to  "  March  1 1  to  16,"  did  not  entitle  the 
drover  to  a  "  stop-over,"  and  if  he  did  stop, 
he  could  not  recover  for  being  ejected  from 
a  second  train.  Dietrich  v.  Pennsylvania 
R.  Co.,  71  Pa.  St.  432,  3  Am.  Ry.  Rep.  435. 

Where  a  passenger  buys  a  ticket  with  the 
condition  printed  on  it  "good  for  this  day 
and  train  only,"  and  he  has  notice  that  it  is 
sold  for  less  than  two  tickets,  aggregating 
the  same  distance,  would  cost,  he  has  no 
right  to  ride  to  an  intermediate  point,  and 

*  Rules  limiting  time  in  which  ticket  is  to  be 
used  and  as  to  "stop-overs,"  see  note, 41  Am. 
Dec  479. 


1054 


TICKETS  AND   FARES,  4^-44. 


iiV 


m 


••••I?: 


i  1.2;;: 

|kiS!j; 


''!: 


f  i>y 


s^i 


then  insUt  on  riding  on  another  train  on 
the  tame  ticket,  although  the  condition  was 
not  brought  to  his  attention  until  the  ticlcet 
was  refused.  SAtdd  v.  Troy  &*  B.  R.  Co., 
40  Vt.  88. 

Where  a  company  sells  a  ticket  marked 
good  for  twenty  days  from  date,  it  is  bound 
to  convey  the  passenger  in  one  continuous 
journsy,  giving  to  him  the  option  of  taking 
any  passenger  train  from  the  point  of  com- 
mencement, and  if  that  train  does  not  go 
the  whole  distance,  to  be  conveyed  over 
the  residue  of  the  journey  in  some  other 
train,  the  whole  journey  to  be  completed 
within  the  twenty  days ;  but  it  does  not  give 
to  the  passenger  the  right  to  stop  at  any  or 
every  intermediate  station.  Craig  v.  Great 
Western  R.  Co.,  24  U.  C.  Q.  B.  504. 

42.  On  limited  tickets.*  — A  com- 
pany is  not  bound  to  carry  a  purchaser  of  a 
limited  ticket  except  where  such  passenger 
pursues  the  journey  continuously.  Walker 
V.  Wabash,  St.  L.  &*  P.  R.  Co.,  16  Am.  &* 
Eng.  R.  Cas.  380,  15  Mo.  App.  333. 

The  holder  of  such  a  ticket  is  not,  after 
beginning  the  journey,  entitled  to  stop  ofl 
at  an  intermediate  point  and  subsequently 
resume  the  journey.  Walker  v.  Wabash, 
St.  L.  &*  P.  R.  Co.,  16  Am  &»  Eng.  R.  Cas. 
380,  IS  A^i;.  -4^333. 

The  holder  of  a  tickcc  for  continuous 
passage  and  limited,  and  the  limit  expiring, 
cannot  take  a  train  that  cannot  give  him 
such  passage,  and  leave  such  train  at  some 
intermediate  point,  and  again  enter  and 
have  passage  on  another  train  that  can  take 
him  to  his  destination,  even  though  the 
latter  trair  may  have  been  the  one  lie  should 
have  taken.  Gulf,  C.  &*  S.  F.  R.  Co.  v.  Henry, 
52  Am.  &*  Eng.  R.  Cas.  230,  84  Tex.  678, 
19  S.  W.  Rep.  870. 

43.  On  through  tinkets.f— Where  a 
through  ticket  is  bought  marked  "  good  for 
this  trip  only,"  and  is  sold  for  less  than  two 
or  more  tickets,  aggregating  the  same  dis- 
tance, would  cost,  the  passenger  is  not  enti- 
tled to  stop  at  an  intermediate  point  and  then 
complete  the  passage  on  another  train  with- 
out paying  additional  fare.  Cheney  v.  Bos- 
ton &*  M.  R.  Co.,  II  Mete.  (Mass.)  121.— 
Distinguished  in  Murdock  v.  Boston  & 

*  Attempting  to  travel  on  stop- over  checks 
after  the  time  limited  on  their  face  has  expired, 
see  44  Am.  &  Eno.  R.  Cas.  395,  aMr. 

f  Reasonableness  of  rule  that  passenger  shall 
not  stop  over  unless  authorized,  as  evidenced  by 
lickc:,  sec  note,  45  Am.  Dec  192. 


A.  R.  Co..  21  Am.  &  Eng.  R.  Cas.  a68, 137 
Mass.  293,  so  Am.  Rep.  307;  Johnson  v. 
Concord  R.  Corp.,  46  N.  H.  213.  Reviewed 
IN  Northern  R.  Co.  v.  Page,  22  Barb.  (N. 
Y.)  130;  Barker  v.  Coflin.  31  Barb.  5S6. 

Where  a  passenger  purchases  a  through 
ticket  with  coupons  attached  for  different 
parts  of  the  trip,  with  a  condition  that  the 
coupons  will  be  forfeited  if  detached,  he  is 
only  entitled  to  a  continuous  pas'^age  on 
each  road  without  the  right  to  stop  at  ir.cer- 
mediate  points;  but  if  he  had  a  riglit  to 
stop  it  would  be  lost  by  voluntarily  or  neg- 
ligently detaching  the  coupons.  Hamilton 
V.  New  York  C.  R.  Co.,  si  N.  Y.  100,  4  Am. 
Ry.  Rep,  423.— DISTINGUISHED  IN  Hardy  v. 
New  York  C.  &  H.  R.  R.  Co..  34  N.  Y.  S. 
R.  902,  58  Hun  607,  12  N.  Y.  Supp.  5$. 
Reviewed  in  Waldele  v.  New  York  C.  & 
H.  R.  R.  Co.  19  Am.  &  Eng.  R.  Cas.  400, 95 
N.  Y.  274. 

44.  over  connecting  lines.*— 

A  purchaser  of  a  limited  ticket  over  several 
connecting  lines  is  not  bound  to  make  a 
continuous  journey  over  all,  but  is  bound 
to  make  it  continuous  over  the  part  of  the 
route  covered  by  each  coupon  of  the  ticket, 
and  over  the  last  portion  within  the  time 
limited.  Little  Rock  &*  Ft.  S.  R.  Co.  v.  Dean, 
21  Am.  &>  Eng.  R.  Cas.  279,  43  Ark.  529, 
St  Am.  Rep.  S84.— Reviewed  in  Nichols  v. 
Southern  Pac.  Co.,  52  Am.  &  Eng.  R.  Cas. 
205,  23  Oreg.  123,  31  Pac.  Rep.  i^S.—Auer- 
back  V.  /Vew  York  C.  &•  H.  R.  R.  Co.,  89 
N.  K.  281. 

In  such  case  where  the  ticket  expires  on 
Sunday,  and  no  train  is  run  over  the  portion 
of  the  trip  covered  by  the  last  coupon,  the 
passenger  is  entitled  to  ride  on  thu  follow- 
ing day.  The  company  cannot  defeat  his 
right  to  travel  by  not  running  a  train ;  and 
where  he  is  ejected  for  a  lack  of  money  to 
pay  his  fare,  the  humiliation  of  being  put 
off  the  train  and  the  inconvenience  of 
reaching  his  destination  are  elements  of 
damage  to  be  considered.  Little  Rock  &• 
Ft.  S,  R.  Co.  V.  Dean,  21  Am.  &»  Eng.  R. 
Cas.  279,  43  Ark.  529,  51  Am.  Rep.  S84. 

A  passenger  holding  a  through  ticket 
over  connecting  railways  has  no  right  to 
leave  a  train  at  a  w.^'.y  station  and  afterwards 
enter  another  train  and  proceed  to  his  origi- 
nal destination  without  procuring  another 


*  Coupon  tickets.  Right  to  stop  over  at  ter- 
mini of  connecting  lines,  SM  nott,  Sl  Am.  & 
Eno.  ^  Cas.  a8a. 


TICKETS   AND   FARES,  45, 46. 


1055 


t  Cas.  368, 137 
>7:  Johnson  v. 
13.  Reviewed 
B,  23  Barb.  (N. 
I  Barb.  556. 
ases  a  through 
d  for  different 
Jition  that  the 
letached,  he  ii 
>us  passage  on 

0  stop  at  ir.ter* 
had  a  right  to 
intarily  or  neg- 
>nt.    Hamiltcn 

Y.  100.  4  Am. 
ED  IN  Hardy  v. 
>.,  34  N.  Y.  S. 

Y.  Supp.  55. 
ew  York  C.  & 

R.  Cas.  400, 95 

\ag  lines.*— 

et  over  several 
ind  to  make  a 
,  but  is  bound 
:he  part  of  the 
n  of  the  ticket, 
ithin  the  time 
R.  Co.  V.  Dean, 
),  43  yirk.  529, 
>  IN  Nichols  V. 
i  Eng.  R.  Cas. 
p.  296. — AutT' 
R.  R.  Co.,  89 

ket  expires  on 
irer  the  portion 
St  coupon,  the 
on  thu  follow- 
not  defeat  his 
g  a  train ;  and 
c  of  money  to 

of  being  put 
>nvenience  of 

elements  of 
'Jttle  Rock  &* 
m.  &*  Eng.  R. 
Rep.  584. 

1  rough  ticket 
I  no  right  to 
ind  afterwards 
d  to  hisorigi- 
iiring  another 


op  over  at  ter- 
ott,  SI  Am.  & 


ticket  or  paying  fare.  McClure  v.  Phila- 
delphia, W.  4-  B.  R.  Co.,  34  M(i.  532. 

A  through  ticket,  with  coupons  attached 
for  the  different  roads,  constitutes  a  con- 
tract entire  as  to  eacii  connecting  line,  but 
severable  as  between  the  different  lines;  so 
where  a  passenger  enters  upon  any  one  of 
the  connecting  lines  he  has  no  stop-over 
privileges  on  that  line,  but  may  stop  over  at 
the  end  of  the  line,  before  resuming  the 
ride  on  the  next  connecting  line.  Nichols 
V.  Southern  Pac.  Co.,  52  Am.  &*  Eng.  R. 
Cas.  205,  23  Oreg.  123,  31  Pac.  Rep.  296,  18 
L.  R.  A,  55.— Approving  Little  Rock  &  Ft. 
S.  R.  Co.  V,  Dean,  43  Ark.  530.  Explain- 
ing Walker  v.  Wabash.  St.  L.  &  P.  R.  Co., 
15  Mo.  App.  333.  Quoting  Churchill  v. 
Chicago  &  A.  R.  Co.,  67  111.  393. 

45.  Va  case  of  accident,  misfortune, 
or  farilt  of  carrier.  —  As  a  general  rule, 
when  a  passenger  who  holds  a  ticket  from 
one  point  to  another  selects  his  train  and 
enters  upon  his  journey,  ne  has  no  right  to 
leave  the  train  at  a  way  station,  and  after- 
wards enter  another,  and  proceed  to  his 
destination  without  procuring  an  additional 
ticket  or  paying  his  fare  from  the  way  sta- 
tion. If,  however,  the  company  is  not  prose- 
cuting the  journey  in  a  reasonable  time  and 
in  a  reasonable  manner,  as  the  passenger  has 
the  right  to  demand  that  it  shall  do,  then 
he  may  leave  the  Lrain  which  he  selected 
and  continue  his  journey  upon  another, 
under  the  original  contract,  and  without 
paying  an  additional  fare.  Wilsey  v.  Louis- 
ville &*  N.  K,  Co..  26  Am.  &»  Eng.  R.  Cns. 
258,83/5'.  511. 

The  train  upon  which  appellant  wis  a 
passenger  was  stopped  about  dark  b>  a 
wreck.  Being  informed  that  the  train 
would  be  delayed  several  hours,  perhaps  all 
night,  and  that  no  one  could  tell  when  it 
would  be  ready  to  proceed,  appellant,  who 
was  sick,  informed  the  conductor  of  that 
fact  and  asked  for  a  stop-over  ticket,  which 
was  denied  him.  He  then  Jeft  the  train, 
spent  the  night  at  a  hotel,  and  took  another 
train  next  day.  The  conductor  upon  tiiis 
train  refused  to  accept  the  conductor's 
check,  which  appellant  had  received  in  lieu 
of  his  ticket  the  day  before,  and  also  refused 
to  accept  ticket  fare  which  appellant  offered 
to  pay,  and  demanded  as  conductor's  fare 
more  than  he  was  entitled  under  the  rules 
of  the  company  to  demand.  Appellant 
refusing  to  comply  with  this  demand,  the 
conductor  ejected  him.    IfeM,  that  appel- 


lant had  the  right,  under  his  original  con- 
tract, to  stop  over  and  take  another  train 
without  paying  additional  fare.  Moreover, 
the  conductor's  demand,  being  for  more 
than  he  was  entitled,  in  any  event,  to 
demand,  was  illegal,  and  appellant's  refusal 
to  comply  gave  to  the  company  no  right  to 
put  him  off  the  train.  Wilsey  v.  Louisville 
&-  N.  R.  Co.,  26  Am.  (f^  E^g.  R.  Cas.  258, 
83  Ry.  511.— Quoting  Dietrich  v.  Pennsyl- 
vania R.  Co.,  71  Pa.  St.  432. 

Cases  may  arise  ia  which  by  accident, 
misfortune,  fault  of  the  carrier,  or  the 
misconduct  of  the  employes  of  a  carrier  of 
passengers,  continuous  transit  may  be  inter- 
rupted without  fault  on  part  of  the  passen- 
ger, and  in  such  cases  the  passenger  may 
be  entitled  to  resume  his  journey,  and  to  be 
transported  as  though  no  interruption  had 
occurred.  Gulf,  C.  &•  S.  F.  R.  Co.  v. 
Henry,  52  Am.  &•  Eng.  R.  Cas.  230,  84  Tex. 
678,  19  S.  JV.  Rep.  870. 

40.  Leaving  train  and  sulise- 
quently  seelcing  to  continue  Jour- 
ney.— Plaintiff  purchased  an  unconditional 
ticket,  and  after  it  had  been  taken  up  on 
the  train,  stopped  off  at  an  intermediate 
station  without  the  conductor's  consent, 
leaving  his  baggage  on  the  train  which 
went  to  the  end  of  the  journey.  The  next 
day  plaintiff  got  on  a  train  but  refused  to 
pay  fare.  The  conductor  allowed  him  to 
remain  on  the  train,  but  refused  to  deliver 
his  baggage  until  he  should  pay  the  addi- 
tional fare,  ffelti,  that  so  long  as  the  bag- 
gage remained  in  the  carrier's  possession, 
the  carrier  had  a  lien  upon  it  for  the  extra 
fare.     Roberts  v.  Koehler,  30  Fed.  Rep.  94. 

Plaintiff  was  riding  by  virtue  of  a  ticket 
that  did  not  give  him  the  right  to  discon- 
tinue the  passage.  Having  stopped  at  an 
intermediate  point,  and  having  entered 
another  train,  he  claimed  the  right  to  con- 
tinue his  journey  on  such  ticket,  under 
permission  given  by  a  conductor  of  the  first 
train.  Refusing  to  pay  his  fare,  he  was  put 
off,  it  appearing  that  only  train  agents  had 
the  power  to  modify  the  force  of  such 
tickets.  Held,  that  such  expulsion  was 
justifiable,  although,  at  the  trial,  plaintiff 
testified  that  it  was,  in  point  of  fact,  a  train 
agent  and  not  a  cond  uctor  who  had  gi  ven  h  im 
the  privilege  claimed.  Petritv.  Pennsylvania 
R.  Co.,  I  Am.  &•  Eng.  R.  Cas.  258,  42  N.  J. 
L.  449.  —  Distinguished  in  Murdock  v. 
Boston  &  A.  R.  Co.,  21  Am.  &  Eng.  R.  Cas. 
268,  137  Mass.  293,  50  Am.  Rep.  307. 


1056 


TICKETS   AND    FARES,  47,  48. 


•VDm* 


i>mai 


l& 


Where  a  person  purchases  a  ticket  and 
takes  his  passage  upon  a  railroad  train,  and 
after  the  train  starts  upon  the  road  gives 
up  his  ticket  to  the  conductor,  he  cannot, 
at  an  intermediate  station,  by  virtue  of  his 
subsisting  contract,  leave  such  train  during 
the  reasonable  performance  of  the  con- 
tract, and  claim  a  seat  upon  another  train. 
Cleveland,  C.  &•  C.  Ji.  Co.  v.  Bartram,  1 1 
Ohio  St.  457.  —  Followed  in  Hatten  v. 
Railroad  Co.,  13  Am.  &  Eng.  R.  Cas.  53,  39 
Ohio  St.  375.  Quoted  in  Frank  v.  Ingalls, 
21  Am.  &  Eng.  R  Cas.  277,41  Ohio  St.  560. 

In  the  absence  of  any  agreement,  or  of  a 
rule  or  regulation  to  the  contrary,  the  obli- 
gation created  by  a  sale  of  a  ticket  is  for 
one  continuous  passage,  and  if  the  passen- 
ger voluntarily  leaves  the  train  at  an  inter- 
mediate station  while  the  carrier  is  engaged 
in  the  performance  of  its  contract,  he  there- 
by releases  it  from  further  performance,  and 
has  no  right  to  demand  such  performance 
on  another  train,  or  at  another  time.  Hat- 
ten  V.  Railroad  Co.,  13  Am,  &•  Eng.  K.  Cas. 
53,  39  Ohio  St.  375.  —  Following  Cleve- 
land, C.  &  C.  R.  Co.  V.  Bartram,  11  Ohio 
St.  457. 

47.  Effect  of  usage  and  habit.— 
Testimony  to  the  eflect  that  plaintiff  had 
been  permitted  at  other  times  to  stop  over 
at  intervening  stations,  and  to  ride  upon 
subsequent  trains  with  the  same  ticket  and 
without  stop-over  checks,  was  held  in- 
admissible. Stone  v.  Chicago  &*  N.  JV.  R. 
Co.,  47  Iowa  82,  17  Am.  Ry.  Rep.  461. 

Plaintiff  purchased  a  ticket  from  Chicago 
to  Boston  via  the  Concord  railroad,  and 
voluntarily  stopped  at  a  way  station  on  that 
road  for  nearly  four  months.  Held,  that 
under  a  regulation  of  the  company  that 
tickets  entitled  the  holder  to  a  passage  only 
on  the  day  of  their  date,  or  as  near  to  it  as 
possible,  he  was  not  afterwards  entitled  to 
passage  to  Boston,  although  there  had  been 
a  usage  allowing  passengers  to  stop  over, 
and  plaintiff  received  no  notice  from  his 
ticket  or  otherwise  of  the  new  regulation. 
Johnson  v.  Concord  R.  Corp.,  46  N.  H.2\y 

The  fact  that  one  conductor  allowed  a 
passenger  a  stop-over  on  a  through  ticket, 
on  a  part  of  the  route,  did  not  entitle  him 
to  it  on  another  part  of  the  road,  with  a 
different  conductor.  Dietrich  v.  Pennsyl- 
vania R.  Co.,  71  Pa.  St.  432,  3  Am,  Ry.  Rep. 
435.  —  Followed  in  Pouilin  v.  Canadian 
Pac.  R.  Co.,  52  Am.  &  Eng.  R.  Cas.  188,  52 
Fed.  Rep.  197,  6  U.  S.  App.  298,  3  C.  C.  A. 


23.  Quoted  in  Wilsey  v.  Louisville  4  N. 
R.  Co.,  26  Am.  &  Eng.  R.  Cas.  258,  83 
Ky.  511. 

48.  Bight  to  stop  over  by  express 
contract. —  (i)  Duty  to  purchase  stop-over 
ticket. — Railroads  may  prescribe,  as  a  regu- 
lation, that  passengers  shall  not  stop  off 
and  then  complete  the  trip,  for  which  they 
may  have  paid,  without  obtaining  stop-over 
tickets.  Breen  v.  Texas  &*  P.  R.  Co.,  50 
Tex.  43. 

(2)  Rights  under  stop-over  tickets. — Rail- 
roads are  not  bound  to  give  stop-over 
tickets,  and  when  they  do  so  it  is  upon  the 
terms  agreed  upon  by  the  parties,  neither 
having  the  right  to  disregard  them  when 
given  and  accepted.  And  when  a  passenger 
accepts  a  stop-over  ticket  marked  "good 
for  thirty  days  only"  he  is  bound  by  the 
terms  imposed,  and  to  make  the  ticket 
available  must  use  it  within  the  time  pre- 
scribed. Churchill  v.  Chicago  &*  A.  R.  Co., 
67  ///.  390,  3  Am.  Ry.  Rep.  430. 

Where  a  passenger  is  traveling  on  a 
through  ticket  with  stop-over  privileges, 
and  has  stopped  off  on  a  conductor's  check 
good  for  ten  days,  after  the  expiration  of 
that  time  the  company  has  a  right  to  eject 
the  passenger  if  he  attempts  to  ride  without 
paying  fare,  though  the  time  limited  by  the 
ticket  has  not  expired.  Kelsey  v.  Michigan 
C.  R.  Co.,  28  Hun  {N.  Y.)  460.— CRITICISED 
IN  Ward  V.  New  York  C.  &  H.  R.  R.  Co., 
56  Hun  268.  30  N.  y.  S.  R.  604,  9  N.  Y. 
Supp.  377. 

A  first-class  passenger  ticket  read  "good 
to  stop  off  at  all  points."  Held,  that  this 
justified  the  passenger  in  stopping  off  at  a 
station  short  of  his  destination,  and  subse- 
quently, within  the  life  of  his  ticket,  taking 
another  train  to  his  destination,  and  though, 
on  his  presentation  to  the  conductor  of  his 
ticket  with  notice  of  his  intention  to  stop 
over,  the  conductor  took  it  up,  and  gave 
no  check  or  token  in  lieu  thereof,  the  pas- 
senger's rights  will  not  be  prejudiced,  at>d 
the  same  conductor,  with  knowledge  of  all 
the  facts,  will  not  be  justified  in  ejecting 
him  from  the  train  on  his  subsequent 
resumption  of  his  journey;  nor  is  it  incum- 
bent on  the  passenger  in  such  case  to  pay 
the  additional  fare  and  sue  for  its  recovery, 
but  he  may  sue  for  damages  for  the  wrong- 
ful expulsion.  Cherry  v.  Kansas  City,  Ft. 
S.  &*  M.  R.  Co.,\i  Mo.  App.  499. 

(3)  Agreement  with  agent.  —  Where  a 
passenger  gets  off  at  an  intermediate  station 


/.  Louisville  &  N. 
R.  Cas.  258,  83 

ver  by  express 

Purchase  stop-over 
iscribe,  as  a  regu- 
hall  not  stop  oiT 
ip,  for  which  they 
btaining  stop-over 
6-  P.  R.  Co.,  50 

ver  tickets. — Rail- 
.0  give  stop-over 
I  so  it  is  upon  the 
)e  parties,  neither 
egard  them  when 
1  when  a  passenger 
St  marlced  "good 
!  is  bound  by  the 
make  the  ticket 
;hin  the  time  pre- 
kago  &*  A.  R.  Co., 

.  430- 

is  traveling  on  a 
»p-over  privileges, 
conductor's  check 

the  expiration  of 
las  a  right  to  eject 
pts  to  ride  without 
ime  limited  by  the 
Kelsey  v.  Michigan 

460.— Criticised 

.  &  H.  R.  R.  Co.. 

,  R.  604.  9  N.  Y. 

ticket  read  "good 
Held,  that  this 
n  stopping  off  at  a 
nation,  and  subse- 
f  his  ticket,  taking 
ation,  and  though, 
e  conductor  of  his 
intention  to  stop 
k  it  up,  and  gave 
1  thereof,  the  pas- 
}e  prejudiced,  atid 
h  knowledge  of  all 
istified  in  ejecting 
n  his  subsequent 
y ;  nor  is  it  incum- 
1  such  case  to  pay 
ue  for  its  recovery, 
iges  for  the  wrong- 
/,  Kansas  City,  Ft, 

App.  499- 

agent.  —  Where  a 
ntermediate  station 


TICKETS    AND    FARES,  49, 50. 


lOS-J 


on  the  assurance  of  the  train  agent  that  he 
may  resume  the  journey  on  the  next  train 
upon  the  same  ticket,  the  company  is  bound 
thereby,  and  cannot  deny  the  authority  of 
the  agent  to  give  such  an  assurance.  Tar- 
bell  v.  Northern  C.  R.  Co.,  24  Hun  {N.  Y.) 
51. — Distinguishing  Dietrich  v.  Pennsyl- 
vania R.  Co.,  71  Pa.  St.  432;  Oil  Creek  & 
A.  R.  R.  Co.  V.  Clark,  72  Pa.  St.  231. 

In  such  case  the  agent  was  in  control  of 
the  train ;  he  was  the  officer  of  whom  pas- 
sengers should  inquire  as  to  what,  they 
might  do  in  respect  to  the  journey  accord- 
ing to  the  rules  of  the  company ;  and  it  was 
within  the  scope  of  his  apparent  authority 
to  tell  plaintiff  what  would  be  the  effect  of 
his  getting  ofl  the  train.  Tarbell  v.  North- 
ern C.  R.  Co.,  24  Hun  (N.  K)  51. 

40.  Conductor's  stop-over  check. 
— Passengers  are  not  presumed  to  know  the 
rules  and  regulations  of  a  company,  made 
for  the  guidance  of  conductors  and  other 
employes,  relating  to  stop-over  privileges 
and  other  internal  affairs  of  the  company ; 
and  unless  a  passenger  has  actual  knowl- 
edge thereof,  or  there  is  notice  printed  on 
his  ticket  that  a  stop-over  check  is  neces- 
sary, he  is  entitled  to  rely  upon  the  repre- 
sentations of  the  ticket  agent  as  to  what  is 
necessary.  New  York,  L.  E.  &*  IV.  R.  Co. 
V.  Winters,  52  Am.  &>  Eng.  R.  Cas.  328, 143 
U.  S.  60,  12  Sup.  Ct.  Rep.  356.— Reviewing 
Hufford  V.  Grand  Rapids  &  I.  R.  Co.,  64 
Mich.  631.— DiSTiNGUiSHF.n  in  Mahoney 
V.  Detroit  St.  R.  Co.,  93  Mich.  612. 

A  regulation  of  a  company  by  which  one 
who  has  paid  his  fare  between  two  points 
on  the  road,  but  desires  to  stop  over  at  an 
intermediate  point,  is  required  to  procure  a 
stop-over  ticket  from  the  conductor  and 
present  it  to  the  conductor  of  the  train  on 
which  he  seeks  to  complete  his  journey  as 
evidence  of  his  right  to  do  so  without  fur- 
ther payment  is  a  reasonable  regulation. 
Yorton  v.  Milwaukee,  L.  S.  &»  tV.  R.  Co., 
6  Am.  &*  Eng.  R.  Cas.  322,  54  IVis.  234, 
41  Am.  Rep.  23,  1 1  AT.  W.  Rep.  482. 

If  the  passenger,  in  such  a  case,  asks  the 
proper  conductor  for  a  stop-over  ticket,  and 
through  the  conductor's  fault  receives  in- 
stead thereof  only  a  trip  check,  the  second 
conductor  may  still  demand  of  him  the 
additional  fare,  and,  upon  his  refusal  to  pay 
it,  may  eject  him  from  the  train  at  some 
usual  stopping  place,  using  no  unnecessary 
force ;  and  such  ejection  will  be  no  ground 
of  recovery  against  the  company,  though 
7  D.  R.  D.— 67 


such  company  will  be  liable  to  the  passenger 
for  the  fault  of  the  first  conductor.  Yorton 
V.  Milwaukee,  L,  S.  6-  W.  R.  Co.,  6  Am.  6- 
Eng.  R.  Cas.  322,  54  IVis.  334,  41  Am. 
Rep.  23,  II  N.  W.  Rep.  482.— Distin- 
guishing Toledo,  W.  &  W.  R.  Co.  v. 
McDonough,  53  Ind.  289;  Burnham  v. 
Grand  Trunk  R.  Co.,  63  Me.  298;  Palmer 
V.  Charlotte,  C.  &  A.  R.  Co.,  3  So.  Car.  580; 
Hamilton  v.  Third  Ave.  R.  Co.,  53  N.  Y. 
25;  English  V.  Delaware  &  H.  Canal  Co., 
66  N.  Y.  454.  Reviewing  Townsend  v. 
New  York  C.  O;  H.  R.  R.  Co.,  56  N.  Y.  295. 
—Distinguished  in  Murdockw.  Boston  & 
A.  R.  Co.,  21  Am.  &  Eng.  R.  Cas.  268,  137 
Mass.  293,  50  Am.  Rep.  307 ;  Philadelphia, 
W.  &  B.  R.  Co.  V.  Rice,  26  Am.  &  Eng.  R. 
Cas.  264,  64  Md.  63.  Reviewed  in  Chi- 
cago &  N.  W.  R.  Co.  V.  Bannermaa,  15  111. 
App.  100;  Peabody  v.  Oregon  R.  &  N.  Co., 
21  Oreg.  121. 

A  passenger  who,  through  the  negligence 
of  one  conductor,  is  not  furnished  with  a 
stop-over  ticket  to  which  he  is  entitled,  and 
who,  on  attempting  to  resume  his  journey 
after  a  stop,  is  required  by  a  second  con-  ° 
ductor  to  pay  additional  fare  or  leave  the 
train,  may  elect  to  leave  the  train,  and  in 
that  case  may  recover  from  the  railroad 
company,  not  merely  the  amount  of  the 
additional  fare  which  he  is  subsequently 
obliged  to  pay  in  order  to  reach  his  desti- 
nation, but  all  damages  sustained  by  him  as 
the  direct  and  natural  consequence  of  the 
fault  of  the  first  conductor.  Yorton  v. 
Milwaukee,L.  S.  &*  IV.  R.  Co.,  18  Am.  &* 
Eng.  R.  Cas.  332,  62  Wis.  367,  21  N.  W. 
Rep.  516,  23  A';  W.  Rep.  401. 

60.  Conductor's  stop-over  Indorse- 
ment. —  If  a  passenger  chooses  to  stop 
over,  it  is  not  unreasonable  to  require  him 
to  procure  his  ticket  to  be  so  indorsed  as  to 
make  it  a  voucher  to  the  conductor  hav- 
ing charge  of  a  subsequent  train.  Beebty. 
Ayres,  28  Barb.  (N.  Y.)  275. 

A  rule  of  a  company  required  conductors 
so  to  indorse  tickets  if  a  passenger  desired 
to  stop  off  at  an  intermediate  point.  Plain- 
tiff, a  passenger,  asked  a  conductor  so  to 
indorse  his  ticket,  but  was  told  that  it  was 
not  necessary,  and  stopped  off.  He  got  on 
a  later  train  and  rode  to  another  station  and 
again  stopped  off,  without  applying  to  the 
conductor  to  have  his  ticket  indorsed.  On 
attempting  to  resume  his  journey  on  an- 
other train  his  ticket  was  refused.  Held, 
that  the  privilege  granted  by  the  first  con- 


1068 


TICKETS  AND   FARES,  51-54. 


lUi 


r 


ductor  to  stop  off  without  having  his  ticket 
indorsed  did  not  extend  to  other  times,  and 
after  stopping  off  once  he  became  subject 
to  the  company's  rule  and  should  have  had 
his  ticket  indorsed.  Denny  v.  New  York 
C.  <S-  H.  R.  K.  Co..  5  Daly  {N.  Y.)  50. 

51.  By  statute.— Maine  St.  i87i,ch.  223, 
which  declares  that  the  holder  of  a  ticket 
shall  have  the  right  to  stop  over  at  any  sta- 
tion along  the  line  of  the  road,  and  that  his 
ticket  shall  be  good  for  a  passage  for  six 
years  from  the  time  it  is  first  used,  applies 
only  to  transportation  within  the  state,  and 
consequently  does  not  apply  to  a  ticket  from 
a  point  within  the  state  to  a  point  in  Can- 
ada, while  the  ticket  is  being  used  beyond 
the  limits  of  the  state.  Carpenter  v.  Grand 
Trunk  R.  Co.,  3  Am.  &*  Eng.  R,  Cas.  432, 72 
Me,  388,  39  Am.  Rep.  340.— Followed  in 
Lafarier  v.  Grand  Trunk  R.  Co.,  84  Me.  286. 

While  such  a  ticket  is  being  used  in  New 
Hampshire,  Vermont,  or  Canada,  the  rights 
of  the  passenger  will  be  governed  and  con- 
trolled by  the  laws  of  those  places  and  not 
by  the  laws  of  Maine,  but  in  the  absence  of 
proof  to  the  contrary,  the  laws  of  those 
places  will  be  presumed  to  be  the  same  as 
the  common  law  of  Maine,  and  not  the 
same  as  the  statute  above  cited.  Carpenter 
V.  Grand  Trunk  R.  Co.,  3  Am,  <S-  Eng.  R. 
Cas.  432,  72  Me.  388,  39  Am,  Rep,  340. 

n.  PABTICOLAB  KINDS  OF  TICKETa 
I.  In  General. 

62.  First-class  tickets.— A  ticket  en- 
titling the  purchaser  to  transportation  in 
first-class  coaches  between  the  points  indi- 
cated thereon  giv>!S  him  a  right  to  have  his 
luggage,  not  excetJing  the  quantity  speci- 
fied in  the  ticket,  transported  at  the  same 
time  free  of  charge;  but  it  does  not  give 
him  a  right  to  travel  in  a  baggage,  express, 
or  freight  car,  or  to  transport,  either  in  his 
own  charge  or  that  of  the  railroad,  any 
merchandise  or  property  not  included  in 
the  term  "luggage."  Pfister  v.  Central 
Pae.  R.  Co.,  70  Cal,  169,  11  Pac,  Rep,  686. 

63.  Second-class  tickets.  —  Plaintiff 
was  traveling  on  a  through  second-class 
ticket,  which  provided  that  "  no  agent  or 
employs  has  power  to  modify  this  contract 
in  any  particular."  Held,  that  no  ticket 
agent  or  baggage  master,  where  the  passen* 
ger  changed  from  one  line  to  another,  had 
authority  to  direct  him  to  enter  a  train  upon 
which  first-class  tickets  only  were  accepted. 


New  York,  L,  E,  &*  IV.  R.  Co.  v.  Bennett, 
so  Fed.  Rep,  496.  6  U.  S,  App,  95,  i  C.  C. 
A,  544.— Followed  in  Pouilin  v,  Canadian 
Pac.  R.  Co.,  52  Am.  &  Eng.  R.  Cas.  188,  52 
Fed.  Rep.  197, 6  U.  S.  App.  298, 3  C.  C.  A.  23. 

And  as  between  the  conductor  of  the  train 
and  plaintiff,  the  ticket  is  conclusive  evi- 
dence of  the  right  to  travel,  and  the  con- 
ductor has  no  right  to  accept  a  second- 
class  ticket  on  a  first-class  train.  New 
York,  L.  E,  6-  W.  R.  Co.  v.  Bennett,  50 
Fed,  Rep.  496,  6  U,  S,  App,  95,  i  C,  C.  A. 
544.- Following  Frederick  v.  Marquette, 
H.  &  O.  R.  Co.,  37  Mich.  342 ;  Hufford  v. 
Grand  Rapids  &  I.  R.  Co.,  53  Mich.  118,  18 
N.  W.  Rep.  580 ;  Mosher  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  127  U.  S.  390,  8  Sup.  Ct.  Rep. 
1324 ;  Boylani/.  Hot  Springs  R.  Co.,  132  U. 
S.  146,  10  Sup.  Ct.  Rep.  50. 

One  who  has  applied  for  and  purchased  a 
second-class  ticket,  and  has  used  such  tick- 
ets before,  is  bound  by  its  terms,  whether 
he  has  read  them  or  not.  New  York,  L.  E. 
&*  W.  R.  Co.  V.  Bennett,  50  Fed.  Rep.  496, 
6  U.  S.  App.  95,  I  C.  C.  A.  544.  —  Follow- 
ing Boylan  v.  Hot  Springs  R.  Co.,  132  U  S. 
150,  10  Sup.  Ct.  Rep.  50,  Fonsecav.  Cunard 
Steamship  Co.,  153  Mass.  553,  27  N.  E. 
Rep.  665. 

And  the  fact  that  the  train  on  which 
plaintiff  had  just  traveled  had  failed  to  con- 
nect with  an  outgoing  train  on  the  next 
road  does  not  impose  upon  the  latter  any 
obligation  to  transport  the  passenger  on  a 
first-class  train  when  he  holds  a  second- 
class  ticket.  New  York.  L.  E.  &-  W.  R. 
Co,  V.  Bennett,  50  Fed,  Rep.  496,  6  U.  S.  App. 
95,  I  C.  C,  A.  544. 

If  a  ticket  agent  by  mistake  or  otherwise 
issues  to  an  intending  passenger  second- 
class,  instead  of  first-class,  tickets,  such  pas- 
senger is  entitled  to  recover  damages  for 
being  moved  from  a  first-class  into  a  second- 
class  car  and  compelled  to  travel  therein, 
notwithstanding  the  fact  that  the  conductor 
offered  to  allow  him  to  remain  in  the  first- 
class  car  provided  he  paid  the  extra  charge 
applicable  thereto ;  nor  is  his  riglit  of  action 
affected  by  the  company's  rule  that  the  con- 
ductor can  only  look  to  the  ticket  and  can- 
not inquire  whether  a  passenger  is  entitled 
to  a  passage  other  than  that  appearing  upon 
the  ticket.  St.  Louis,  A.  &*  T.  R.  Co.  v. 
Mackie,  37  Am.  &*  Eng.  R.  Cas.  94,  71  Tex. 
491,  I  L.  R.  A.  667,  9  S.  W.  Rep.  451. 

54.  Third-class  tickets. —  It  is  no 
ground  of  complaint  that  a  company  work- 


TICKETS  AND   FARES,  5S-57. 


10»9 


Co.  V.  Bentutt, 

lilin  V.  Canadian 
R.  Cas.  1 88,  52 

(98, 3  C.  C.  A.  23. 

ictor  of  the  train 
conclusive  evi- 

:1,  and  the  con> 

ccept  a  second- 

ss  train.  JVew 
V.  Bennett,  50 

>.  95.  «   C.  C.  A. 

k  V,  Marquette, 

142 ;  HuSord  v. 

;3  Mich.  118,  18 
St.  Louis,  I.  M. 

8  Sup.  Ct.  Rep. 

;s  R.  Co.,  132  U. 

ind  purchased  a 
I  used  such  tick- 
terms,  whether 
Wew  York.  L.  E. 
3  Fed.  Hep.  496, 
544.  —  FOLLOW- 
R.  Co.,  132  U  S. 
nsecav.  Cunard 
553.  a?  N.  E. 

train  on  which 
ad  failed  to  con- 
lin  on  the  next 
1  the  latter  any 
passenger  on  a 
lolds  a  second- 
:.  E.  &*  IV.  R. 
96.  6  U.  S.  App. 

ike  or  otherwise 
isenger  second- 
ickets,  such  pas- 
er  damages  for 
is  into  a  second* 
>  travel  tiicrein, 
,t  the  conductor 
ain  in  the  first- 
he  extra  charge 
I  right  of  action 
lie  that  the  con- 
ticket  and  can- 
:nger  is  entitled 
appearing  upon 
^*  T.  R.  Co.  V. 
Cai.  94,  71  Tex. 
Rep.  451. 
its. —  It  is  no 
company  work- 


1 


ing  a  main  line  refuses  to  grant  third-class 
return  tickets  to  the  branch  line,  if  it  ap- 
pears that  no  such  tickets  are  issued  to 
other  branches  sim ilarly  situated.  Caterham 
R.  Co.  V.  London,  B.  &*  S.  C.  R.  Co.,  i  C.  B. 
N.  S.  410,  26  L.  J.  C.  P.  161,  I  Ry.  6-  C.  T. 
Cas.  32. 

55.  Half-fore  tickets.  —  By  virtue  of 
Ind.  Act  of  March  9,  1875,  §  8  (1  Rev.  St. 
1876,  p.  359),  regulating  the  issuing  of  rail- 
road tickets  and  coupons,  all  special  tickets 
are  exempted  from  the  operation  of  said  act, 
whether  they  are  half-fare  or  excursion 
tickets,  or  special  in  any  other  respect. 
State  V.  Frjf,  6  Am.  &•  Eng.  R,  Cas.  340,  81 
Ind.  7. 

A  rule  of  a  company  forbidding  conduct- 
ors to  pass  any  one  holding  a  half-fare 
ticket,  unless  the  passenger  should  carry 
a  permit  from  the  proper  officer  thus  to 
travel,  is  a  reasonable  rule.  Goetz  v.  /fan- 
nibal  &»  St.  J.  R.  Co.,  50  Mo,  472,  3  Am.  Ry. 
Rep.  427. 

66.  Land-exploring  tickets. —  De- 
fendant company,  owning  lands  for  sale, 
was  in  the  habit  of  issuing  non-transferable 
tickets  at  reduced  rates,  known  as  land- 
exploring  tickets.  Plaintiff,  a  resident  of 
the  state,  was  in  another  state  and  bought 
one  of  these  tickets  for  a  round  trip  and 
used  it  one  way,  but  it  was  refused  on 
the  return  trip  and  he  was  ejected.  Held, 
that  a  resident  of  the  state,  if  he  made  no 
misrepresentations  in  purchasing  the  ticket, 
could  use  it,  but  no  one  else  could.  Gregory 
V,  Burlington  6*  /  '  R.  R.  Co.,  i  Am.  &*  Eng. 
R.  Cas.  270,  10  Nei.  250,  4  A''.  W.  Rep.  1025. 

Even  if  plaintiff  had  made  false  repre- 
sentations (of  which  there  is  no  prooQ  in 
the  purchase  of  the  ticket,  this  would  only 
have  rendered  the  contract  voidable,  not 
void ;  and  if  the  company  desired  to  avoid 
the  contract  after  the  ticket  had  been  used 
one  way,  it  must  tender  back  the  excess 
of  the  fare  paid  for  the  round  trip  above 
the  regular  fare  one  way.  Gregory  v.  Bur- 
lington &-  M.  R.  R.  Co.,  I  Am.  6-  Eng.  R. 
Cas.  270,  10  Neb.  250,  4  A';  W.  Rep.  1025. 

In  such  case  the  possession  of  the  ticket 
was  prima  fade  evidence  of  ownership,  and 
the  failure  of  plaintiff  to  sign  his  name  on 
the  ticket  did  not  invalidate  it,  \n  the  ab- 
sence of  evidence  that  he  had  been  requested 
to  do  so,  as  such  signature  is  only  a  mode 
of  identifying  the  purchaser.  Gregory  v. 
BurlingtoH  *•  Af.  R.  R.  Co.,  I  Am.  &*  Eng. 
R.  Cas.  270,  10  Net.  250,  4  A^.  tV.  Rep.  1025. 


The  agent  at  the  terminus  refused  to 
stamp  such  ticket,  placing  his  refusal  upon 
the  fact  that  the  contract  expressed  on  the 
ticket  had  not  been  signed,  and  not  upon 
the  fact  that  plaintiff  was  not  authorized 
to  purchase  it;  but  there  was  no  proof 
that  plaintiff  had  any  knowledge  of  the 
rules  of  the  company  requiring  him  to 
sign  it,  and  if  there  was  any  fault  in  its  not> 
being  signed  it  was  that  of  the  agent  who 
sold  the  ticket.  Held,  that  plaintiff  was  en- 
titled to  a  verdict  for  one  half  of  the  cost  of 
the  ticket,  and  to  such  damages  as  he  might 
have  sustained  by  reason  of  being  ejected 
from  the  train.  Gregory  v.  Burlington  &* 
M.  R.  R.  Co.,  I  Am.  &*  Eng.  R.  Cas.  270, 
10  A'eb.  250,  4  A^.  IV.  Rep.  1025.— Distin- 
guished IN  Way  V.  Chicago,  R.  I.  &  P.  R. 
Co.,  64  Iowa  48,  52  Am.  Rep.  431. 

67.  Season  tickets.  — The  fact  that 
one  student  is  required  to  pay  the  regular 
price  for  a  season  ticket  is  not  a  violation 
of  a  statute  which  requires  every  railroad  to 
give  to  all  persons  reasonable  and  equal 
terms,  where  there  is  no  evidence  that  the 
price  charged  was  unreasonable,  though  it 
appears  that  the  president  of  the  company 
permitted  certain  other  students  to  buy  like 
tickets  for  half  fare.  Spofford  v.  Boston  6* 
M.  R.  Co.,  128  Mass.  326. 

Plaintiff  bought  a  season  ticket  containing 
these  conditions :  "  This  ticket  is  not  trans- 
ferable, nor  will  any  allowance  be  made  to 
the  within  named  in  case  it  may  not  be  used 
for  the  whole  term  for  which  it  was  issued. 
It  is  subject  to  inspection  at  any  time  by 
the  conductor ;  a  refusal  to  comply  will  ne- 
cessitate collection  of  full  fare  each  time. 
It  is  good  only  for  a  continuous  passage  be- 
tween the  points  named.  If  lost  or  mislaid 
it  will  not  be  replaced  by  the  company. 
The  holder  will  please  return  when  renew- 
ing." Plaintiff  lost  the  tickev,  refused  to 
pay  fare,  and  was  ejected  from  a  train. 
Held,  that  he  was  bound  to  know  the  condi- 
tions, and  the  law  would  presume  that  he 
did  know  them.  Such  conditions  were  law- 
ful and  reasonable,  and  he  was  rightfully 
ejected.  Cresson  v.  Philadelphia  &•  R.  R. 
Co.,  II  Phila.(Pa.)  597. 

The  court  will  not  grant  an  injunction 
compelling  a  company  to  issue  season  tick- 
ets between  a  certain  place  and  London  on 
the  same  terms  as  it  issues  them  between 
another  place  and  London,  upon  a  mere 
suggestion  that  the  granting  of  the  latter 
(the  distance  being  considerably  greater)  at 


T 


1060 


TICKETS  AND  FARES,  S8-60. 


.  i? 


^ 


a  much  lower  rate  than  the  former  ia  an 
undue  and  unreasonable  preference.  /oh*s 
V.  Eatitrn  Counties  R.  Co.,  3  C.  B.  N.  5.  718, 
I  Ry.  &*  C.  T.  Cas.  45. 

Where  a  passenger's  season  ticket  is 
issued  upon  condition  that  if  it  is  not  deliv- 
ered  up  on  the  day  after  it  expires  a  deposit  of 
ten  shillings  shall  be  forfeited.such  condition 
must  be  strictly  performed,  and  a  passenger 
cannot  claim  the  deposit  by  delivering  up 
the  ticlcet  within  a  few  days  after  it  expires. 
Cooptr  V.  London,  B.  «S*  S.  C.  R.  Co.,  L.  R.  4 
Ex.  D.  88,  48  L.  J.  Ex.  D.  434. 4©  L.  T.  324, 
27  W.  R.  474,  3  Ry.  &-  C.  T.  Cas.  xxii. 

58.  Transferable  tickets.— An  ordi- 
nary coupon  ticket  issued  for  a  passage  over 
different  lines,  where  it  contains  nothing 
on  its  face  to  the  contrary,  is  transferable, 
even  though  it  may  be  issued  at  a  reduced 
rate.  Nichols  v.  Southtrn  Pac.  Co.,  52 
Am.  &*  Et^.  R.  Cas.  205,  23  Ortg^.  123,  31 
Pac.  Rep.  296,  18  L.  R.  A.  5$.— Approving 
Hoffman  v.  Northern  Pac.  R.  Co.,  45  Minn. 
53,  47  N.  W.  Rep.  312.  Distinguishing 
Drummond  v.  Southern  Pac.  Co.,  7  Utah 
118,  25  Pac.  Rep.  733 ;  Cody  v.  Central  Pac. 
R.  Co.,  4  Sawy.  (U.  S.)  115;  Granier  v. 
Louisiana  Western  R.  Co.,  42  La.  Ann.  880, 
8  So.  Rep.  614. 

A  subsequent  purchaser  of  a  coupon 
ticket  that  is  not  made  on  its  face  non- 
transferable,  nor  for  a  continuous  passage, 
is  entitled  to  ride  thereon  the  same  as  the 
original  purchaser;  and  if  he  be  ejected 
from  a  train  on  presenting  such  a  ticket, 
he  may  recover  damages  from  the  com- 
pany. Nichols  V.  Southern  Pac.  Co.,  $2  Am, 
&*  Eng.  R.  Cas.  205,  23  Oreg.  123,  31  Pac. 
Rep.  296,  18  L.  R.  A.  55. 

59.  Kou- transferable  tickets.*  — 
If  a  person  in  good  faith  presents  a  com- 
mutation ticket  which  was  issued  to  another 
and  is  not  transferable,  and  his  claim  to  be 
carried  thereon  is  recognized,  and  he  is 
carried  as  a  passenger,  he  is  entitled  to  the 
rights  of  a  passenger,  i.  e.,  to  be  carried 
safely,  and  to  have  a  secure  place  to  stop 
and  leave  the  road.  Robostelli  v.  New  York, 
N.  H.  4*  H.  R.  Co..  34  Am.  S^  Eng.  R.  Cas. 
515,  33  Fed.  Rep.  796.  But  compare  Louis- 
ville, N.  A.  &•  C.  R.  Co.  v.  Thompson,  27 
Am.  &*  Eng.  R.  Cas.  88,  107  Ind.  442,  57 

*  See  also  ante,  39. 

Assignability  of  railroad  tickets,  see  note,  18 
L.  R.  A.  55. 

Ejecting  passengers.  Non-transferable  tick- 
ets. Measure  of  damages.  Contributory  negli- 
gence, see  37  Am.  &  £ng.  R.  Cas.  125,  aistr. 


Am.  Rep.  120,  8  N.  E.  Rep.  iS.gN.  E.  Rtp. 
3S7.— Distinguishing  Toledo,  W.  &  W.  R. 
Co.  V.  Beggs,  85  111.  80 ;  Union  Pac.  R.  Co. 
V.  Nichols,  8  Kan.  505  ;  Houston  &  T.  C.  R. 
Co.  V.  Moore,  49  Tex.  31 ;  Eaton  v.  Dela- 
ware, L.  &  W.  R.  Co.,  57  N.  Y.  382 ;  Great 
Northern  R.  Co.  v.  Harrison,  10  Ex.  376; 
Austin  V.  Great  Western  R.  Co.,  L.  R.  2 
Q.  B.  442. 

A  passenger  who  purchases  a  through 
ticket  marked  "  not  transferable  cannot 
ride  on  it  part  of  the  way,  and  then  sell  the 
ticket  to  another  passenger  so  as  to  entitle 
him  to  ride  the  rest  of  the  way,  though  he 
offers  to  ride  on  the  same  train.  Cody  v. 
Central  Pac.  R.  Co.,  4  Sawy.  (U.  5.)  114. 

A  contract  on  a  ticket  that  if  it  is  pre- 
sented by  any  other  person  than  the  original 
holder  it  shall  be  void,  and  the  conductor 
shall  take  it  up  and  collect  full  fare,  is  valid. 
Drummond  v.  Southern  Pac.  Co.,  7  Utah 
118,  2$  Pac.  Rep.  733. 

An  unauthorized  agent  of  another  road 
than  defendant's  assured  the  purchaser  of  a 
ticket  already  used  for  part  of  a  trip,  and 
conditioned  to  be  void  if  presented  by  any 
other  person  than  the  original  purchaser, 
that  the  ticket  would  be  honored,  and  gave 
to  the  purchaser  a  letter  to  the  conductors  of 
defendant's  road,  and  the  purchaser,  relying 
upon  these  representations,  bought  the 
ticket  and  attempted  to  ride  upon  it.  Held, 
that  defendant  company  was  in  no  way 
bound  by  the  representations.  Drummond 
V.  Southern  Pac.  Co.,  7  Utah  118,  25  Pac. 

Rtp'  733- 

00.  Conductors*  checks.  —  A  con- 
ductor on  a  passenger  train  is  under  no  legal 
obligation  to  give  to  a  passenger  a  check 
on  taking  up  a  ticket,  nor  to  punch  the 
ticket  and  allow  the  passenger  to  hold  it 
until  all  intermediate  points  are  passed. 
Chicago,  B.  &*  Q.  R.  Co.  v.  Griffin,  68  ///.  499. 

The  purchaser  of  a  "  train  check,"  issued 
to  another  person  upon  a  limited  ticket  and 
expressed  to  be  good  only  for  a  continuous 
passage,  is  not  entitled  subsequently  to 
pursue  the  journey  begun  by  the  purchaser 
of  the  ticket,  though  the  check  be  offered 
for  passage  within  the  time  limited  thereon. 
Walker  v.  Wabash,  St.  L.  4-  P.  R.  Co.,  16 
Am.  &*  Eng.  R.  Cas.  380,  15  Mo.  App.  333. 
— Reconciled  in  Nichols  v.  Southern  Pac. 
Co.,  52  Am.  &  Eng.  R.  Cas.  205,  23  Oreg. 
123,  31  Pac.  Rep.  296. 

Where  a  passenger  holds  a  through  ticket 
he  has  no  right,  without  the  consent  of  the 


TICKETS  AND   FARES,  61-68. 


1061 


1 8,  9  A':  E.  Rtp. 
edo.W.  &W.  R. 
nion  Pac.  R.  Co. 
uston  &  T.  C.  R. 

Eaton  V.  Dela- 
^.  Y.  382  ;  Great 
son,  10  Ex.  376; 
R.  Co.,  L.  R.  a 

lases  a  through 
tferable  cannot 
ind  then  sell  the 
so  as  to  entitle 
I  way,  though  he 
;  train.  Cody  v. 
V.  {U.S.)  114. 
that  if  it  is  pre- 
than  the  original 
id  the  conductor 
full  fare,  is  valid. 
'ac.   Co.,  7   Utah 

of  another  road 
le  purchaser  of  a 
art  of  a  trip,  and 
presented  by  any 
iginal  purchaser, 
inored,  and  gave 
the  conductors  of 
lurchaser,  relying 
ins,  bought  the 
le  upon  it.  Held, 
was  in  no  way 
>ns.  Drummond 
'tah  118,  25  Pac. 

3cks.  —  A  con- 
is  under  no  legal 
issenger  a  check 
ir  to  punch  the 
enger  to  hold  it 
ints  are  passed. 
Iriffin,  68  ///.  499. 
in  check,"  issued 
imited  ticket  anid 
for  a  continuous 
subsequently  to 
by  the  purchaser 
check  be  offered 
I  limited  thereon. 
**  P.  R.  Co.,  16 
IS  Mo.App.  333. 
V.  Southern  Pac. 
)as.  205,  23  Oreg. 

a  through  ticket 
le  consent  of  the 


company,  to  stop  at  an  intermediate  station 
and  demand  by  virtue  of  his  ticket,  or  a 
conductor's  check  given  him  in  lieu  thereof, 
a  continuation  of  his  passage  on  another 
train.  Notice  by  the  company  that  con- 
ductors' checks  are  not  transferable  from 
one  train  to  another  is  not  a  by-law  of  the 
corporation,  but  a  mere  regulation,  the  va- 
lidity of  which  depends  upon  whether  it  is 
reasonable.  State  v.  Overton,  24  N.  J.  L.  435. 

A  custom  of  a  company  for  conductors  to 
take  up  tickets  and  give  checks  in  place  of 
them  to  passengers  soon  after  their  en- 
trance into  the  cars  is  reasonable,  especially 
where  a  passenger  buys  his  ticket  with 
knowledge  of  the  custom.  Northern  R. 
Co  V.  Page,  22  Barb.  {N.  V.)  130. 

Plaintiff  was  traveling  on  a  through 
ticket  with  coupons  for  the  different  roads, 
but  with  two  coupons  for  the  different  divi- 
sions of  defendant's  road.  On  entering  de- 
fendant's road  the  conductor  detached  both 
coupons  and  gave  to  plaintiff  a  conductor's 
check,  which  according  to  the  rules  of  the 
company  was  good  only  for  that  trip. 
Plaintiff  stopped  at  the  end  of  the  division 
over  night,  and  offered  his  check  the  next 
day  for  passage  over  the  next  division, 
but  it  was  refused  and  he  was  ejected. 
Held,  that  the  ejection  was  wrongful,  and 
the  compar;y  was  liable.  Palmer  v.  Char- 
lotte, C.  *»  A  R.  Co.,  3  So.  Car.  580. 

Platntitf's  rights  grew  out  of  the  terms  of 
his  contract,  giving  to  him  the  privilege  of 
stopping  at  the  end  of  the  first  division. 
He  did  not  owe  to  the  company  the  duty  of 
giving  notice  of  his  intention  to  stop,  or  of 
making  inquiries  as  to  the  force  and  effect 
of  the  conductor's  check ;  and  if  he  failed 
to  give  such  notice  or  make  such  inquiries 
he  was  not  guilty  of  negligence.  Palmer  v. 
Charlotte,  C.  &*  A.  R.  Co.,  3  So.  Car.  580. 

The  individual  check  of  a  conductor 
upon  one  train,  given  to  a  passenger  on  tak- 
ing up  his  ticket,  is  not  evidence  of  a  right 
to  be  carried  on  another  train,  in  charge  of 
another  conductor.  Breen  v.  Texas  &*  P. 
R.  Co.,  50  Tex.  43. 

2.  Commutation  Tickets. 

01.  Duty  of  carrier  to  sell.  —  AN 

though  a  company  is  not  obliged  to  sell 
commutation  tickets,  if  it  undertakes  to  do 
so  it  must  sell  them  to  all  alike.  Miscon- 
duct on  the  part  of  a  passenger  in  refusing 
to  pay  his  tare  when  lie  had  left  i)is  cnni- 


mutation  ticket  at  home  by  mituke  does 
not  justify  a  refusal  to  sell  a  commutation 
ticket  to  such  passenger.  Statt  tx  ret.  v. 
Delaware,  L.  &»  IV.  R.  Co.,  23  Am.  S-  Eng. 
R.  Cas.  470,  48  N./.  L.  55,  2  Atl.  Rep.  803. 
—Quoting  Messenger  v.  Pennsylvania  R. 
Co.,  36  N.  J.  L.  407.  Referring  to  Ran- 
some  V.  Eastern  Counties  R.  Co.,  1  C.  B. 
N.  S.  437.  4  C.  B.  N.  S.  135;  Chaterham  R. 
Co.  V.  London,  B.  &  S.  C.  R.  Co.,  i  C.  B. 
N.  S.  410 ;  Baxendale  v.  Great  Western  R. 
Co.,  5  C.  B.  N.  S.  309,  336;  Garton  v. 
Great  Western  R.  Co.,  5  C.  B.  N.  S.  669; 
Nicholson  v.  Great  Western  R,  Co.,  5  C.  B. 
N.  S.  366 ;  Garton  v.  Bristol  &  E.  R.  Co.,  6  C. 

B.  N.  S.  639 ;  Baxendale  v.  Eastern  Coun- 
ties R.  Co.,  4  C.  B.  N.  S.  63 ,  Evershed  v. 
London  &  N.  W.  R.  Co.,  L.  R  2  Q.  B.  D. 
254;  Crouch  V.  London  &  N.  W.  R.  Co,,  2 

C.  &  K.  789  ;  Stewart  v.  Lehigh  Valley  R. 
Co..  38  N.  J.  L.  505. 

02.  Commuter  must  exhibit  ticket. 
— A  company  has  the  right  to  require  com- 
muters to  show  their  tickets,  and  in  default 
to  exact  the  fare  without  liability  to  repay 
it.  Bennett  V.  Railroad  Co,,  7  Phila.  (Pa.)  11. 

03.  Wlio  may  ride  on.— (1)  Partner. 
— A  person  claimed  the  right  to  travel  on  a 
train,  as  a  passenger  holding  a  commutation 
ticket  issued  by  the  agent  of  the  company, 
on  the  alleged  ground  that  he  was  one  of 
the  members  of  a  partnership  named  on  the 
face  of  the  ticket.  Held,  that  he  must  show 
the  conductor  that  his  name  appears  in- 
dorsed thereon  in  compliance  with  the  con- 
ditions specified  in  the  contract  on  the 
reverse  of  the  ticket.  Granier  v.  Louisiana 
Western  R.   Co.,  42  La.  Ann.  880,   8  So. 

Rep.  614. 

In  case  the  conductor  should  decline  to  rec- 
ognize his  right  thus  to  use  the  commutation 
ticket  and  should  eject  him,  and  damages  are 
claimed  therefor,  the  legal  obligation  is  im- 
posed on  the  claimant  to  establish  by  a  clear 
preponderance  of  proof,  if  denied,  that  there 
existed  such  a  partnership  at  the  time,  and 
that  he  was  one  of  its  members.  Granier  v. 
Louisiana  Western  R.  Co.,  42  La.  Ann.  880, 
8  So.  Rep.  614. 

(2)  On  family  ticket.— h  family  commu- 
tation ticket  which,  on  its  face,  purports  to 
be  for  the  exclusive  use  of  a  man  and  his 
family,  authorizes  a  son,  who  is  residing 
with  the  father  as  a  member  of  his  family, 
to  ride  upon  the  road,  notwithstanding  he 
may  be  over  twenty-one  years  of  age ;  but 
where  the  father  was  told  at  the  time  he 


1062 


TICKETS  AND  FARES,  64-66. 


»: 


IM^' 


m 


■:i 


purchased  the  ticket  that  a  rule  of  the  com- 
pany excluded  children  over  age,  such  rule 
became  part  of  the  contract,  and  the  son 
could  not  ride.  Chicago  &*  N.  W.  R.  Co. 
V.  Chisholm,  79  ///.  584. 

64.  Refusal  to  honor  and  taking 
up.  •— Plaintiff  held  a  commutation  ticket 
which  contained  a  condition  that  it  should 
be  used  only  by  the  holder,  and  that  if 
found  in  the  hands  of  any  one  else  it  would 
be  forfeited  and  taken  up.  Plaintiff  pre- 
sented it,  when  it  was  taken  up  by  the  con- 
ductor, who  claimed  that  it  had  been  used 
by  other  persons,  which  was  denied  by 
plaintiff.  Htld,  that  it  was  properly  taken 
up  if  before  that  time  it  had  been  used  by 
any  other  persons  with  plaintiff's  conni- 
vance ;  and  if  so  the  company's  agent  had 
afterwards  the  right  to  take  it  up  even  in  the 
hands  of  the  person  to  whom  it  was  issued. 
Freidenrich  v.  Baltimore &*  O.  K.  Co.,  2  Am. 
d*  Ettg.  R.  Cas.  280,  53  Md.  201. 

Plaintiff  asked  the  court  to  instruct  the 
jury  that  he  was  entitled  to  recover,  if  the 
jury  should  find  that  the  ticket  was  taken 
from  his  possession  and  he  was  ejected,  and 
should  further  find  that  he  did  not  loan, 
sell,  or  in  any  manner  transfer  the  ticket 
to  any  other  person,  or  knowingly  permit 
any  other  person  to  use  the  ticket  'before 
that  time,  which  instruction  the  court  gave, 
but  added,  "  and  shall  find  that  said  ticket 
was  not  used  by  any  other  person  than  the 
plaintiff,  through  the  negligence  or  want 
of  due  care  on  the  part  of  the  plaintiff." 
Plaintiff  claimed  that  this  addition  to  the 
instruction  was  error.  Ne/d,  that,  as  there 
was  no  question  of  negligence  made  by  the 
proof,  the  addition  was  unnecessary,  but  as 
it  could  not  have  prejudiced  the  jury,  it 
was  not  sufficient  ground  for  reversal. 
Freidtnrich  v.  Baltimore  &»  O.  R.  Co.,  2 
Am.  &*  Eng.  R.  Cas.  280,  53  Md.  201. 

65.  Payment  of  regular  fare  by 
commuter. — A  person  purchasing  a  com- 
mutation ticket,  and  giving  a  receipt,  on 
which  was  a  note  that  the  ticket  should  be 
shown  to  the  conductors  when  required,  and 
no  duplicate  ticket  would  be  issued,  and  upon 
which  ticket  it  was  printed  that  the  ticket 
was  held  subject  to  the  regulations  pre- 
scribed in  the  receipt,  is  bound  by  his  con- 
tract ;  and  if  by  casualty  his  ticket  has  been 
lost,  so  that  he  cannot  produce  it  when  re- 
quired, the  company  may  exact  of  him  the 
regular  fare.  Ripl^  v.  Nrwjtruy  R.  &*  T. 
Co.,  31  N. /.  L.  fi9. 


66.  Lost  or  misplaced  tickets.— 

Plaintiff  held  a  commutation  ticket  which 
contained  a  condition  that  he  should  have 
no  claim  for  a  rebate  on  account  of  the 
non-use  of  the  ticket  from  any  cause.  For 
a  time  the  company  had  been  in  the  habit 
of  giving  a  rebate  if  persons  holding  such 
tickets  failed  to  have  them  and  had  to  pay 
full  rates,  but  it  had  discontinued  the  prac- 
tice some  three  weeks  before  and  had  so 
notified  the  commission.  Plaintiff  at- 
tempted to  ride.without  his  ticket  and  had 
to  pay  full  tare.  Held,  that  he  was  not  en- 
titled to  a  rebate,  though  he  supposed  that 
the  former  custom  was  still  in  vogue.  Sid- 
man  V.  Richmond  &*  D.  R.  Co.,  2  Int.  Com. 
Rep.  766,  3  Int.  Com.  Com.  512. 

And  in  such  case  it  was  not  unjust  dis- 
crimination for  the  conductor  to  collect 
twenty-five  cents  extra,  where  that  regula- 
tion was  made  a  part  of  the  company's 
schedule  and  so  filed  with  the  commission. 
Sidman  v.  Richmond  6f*  D.  R.  Co.,  2  Int. 
Com.  Rep.  766.  3  Int.  Com.  Com.  512. 

Plaintiff  purchased  such  ticket  on  the 
13th  day  of  June,  and  it  showed  on  its  face 
that  it  was  good  for  three  months  only  from 
the  1st  day  of  June.  Held,  that  he  was  not 
entitled  to  recover  anything  for  the  thirteen 
days  of  the  quarter  elapsing  before  he  pur- 
chased the  ticket.  Sidman  v.  Richmond 
6-  D.  R.  Co.,  2  Int.  Com.  Rep.  766,  3  Int. 
Com.  Com.  512. 

Conditions  upon  ithich  a  ticket  is  issued, 
and  printed  thereon,  are  considered  in  the 
nature  of  a  contract  in  writing.  Admission 
of  evidence  to  the  effect  that  at  the  time 
of  the  purchase  of  the  ticket  it  was  orally 
agreed  to  issue  a  duplicate  in  case  of  its 
loss  violates  the  familiar  rule  that  an  in- 
strument in  writing  may  not  be  added  to  by 
proof  of  a  contemporaneous  oral  under- 
standing and  that  the  writing,  if  not  ambig- 
uous, except  in  cases  of  fraud,  accident, 
surprise,  or  mistake,  is  conclusive  of  what 
the  parties  have  agreed.  Simis  v.  New  York, 
L.  E.  &»  W.  R.  Co.,  48  N.  Y.  S.  R.  687.  20 
N.  Y.  Supp.  639,  I  Misc.  179. 

Evidence  of  a  custom  is  admissible  only 
when  its  office  is  to  remove  an  ambiguity  or 
to  clear  up  some  obscurity,  and  is,  there- 
fore, incompetent  when  offered  to  show  that 
defendant  had  frequently  issued  duplicate 
tickets  in  lieu  of  lost  ones,  or  had  agreed 
to  do  more  than  the  language  of  the  con- 
tract, expressed  or  by  implication,  required. 
Simis  v.  New  York,  L.  E.  5-  W.  R.  Co.,  48 


I 


TICKETS   AND   FARES,  07,  68. 


10G3 


ced  tickets.— 

ion  ticket  which 
he  should  have 
account  of  the 
any  cause.     For 
een  in  the  habit 
ms  holding  such 
and  had  to  pay 
itinued  the  prac- 
ore  and  had  so 
Plaintiff    at- 
s  ticket  and  had 
t  he  was  not  en- 
le  supposed  that 
in  vogue.    Sid- 
Co.,  2  Int.  Com. 

SI2. 

not  unjust  dis* 

uctor  to  collect 

lere  that  regula- 

the  company's 

the  commission. 

D.  R.  Co.,  2  Int. 

Com.  512. 

h  ticket  on   the 

lowed  on  its  face 

nonths  only  from 

,  that  lie  was  not 

g for  the  thirteen 

ng  before  he  pur- 

an  V.   Richmond 

Rep.  766,  3  Int. 

\  ticket  is  issued, 
onsidered  in  the 
ing.  Admission 
that  at  the  time 
cet  it  was  orally 
e  in  case  of  its 
rule  that  an  in- 
t  be  added  to  by 
•us  oral  under- 
ig,  if  not  ambig- 
fraiid,  accident, 
nclusive  of  what 
nii  V.  New  York, 
V.  S.  R.  687,  20 

admissible  only 
an  ambiguity  or 
f,  and  is,  there- 
red  to  show  that 
issued  duplicate 
,  or  had  agreed 
age  of  the  con- 
:at!on,  required. 
M  W.  R.Co.,i^% 


N.  Y.   S.  R.  687,  ao  JV.  V.  Supp.  639,   I 
Mite.  179. 

3.  Coupons  and  Coupon  Tickets. 

67.  Generally.  —  Where  a  passenger's 
ticket  is  issued  in  the  form  of  a  paper  book 
containing  coupons,  the  whole  book  consti- 
tutes the  contract  with  the  company  and 
the  passenger  is  bound  by  a  condition  on 
the  inside,  although  he  had  not  read  and 
did  not  know  it.  Burke  v.  South  Eastern 
R.  Co.,  L.  R.  5  C.  P.  D.  I,  49  L.  J.  C.  P.  D. 
107.41  L.  T.  554,  28  W.  R.  306,  44/.  P.  283. 
—Considered  in  Watkins  v.  Rymill,  L.  R. 
10  Q.  B.  D.  178,  52  L.  J.  Q.  B.  121,  48  L.  T. 
426.  31  W.  R.  337,  47  J.  P.  357. 

Where  a  coupon  ticket  has  been  sold  call- 
ing for  passage  over  several  distinct  lines  of 
railroad,  the  rights  of  the  passenger,  and 
the  duty  and  responsibility  of  the  several 
companies  over  whose  roads  the  passenger 
is  entitled  to  passage,  are  the  same  as  if  he 
had  purchased  a  ticket  at  the  ofhce  of  each 
company  constituting  the  through  line. 
Pennsylvania  R.  Co.  v.  Connell,  18  Am.  &* 
Eng.  R.  Cas.  339,  112  ///.  295,  54  Am. 
Rep.  238. 

The  managers  of  an  excursion  from  Wil- 
mington, N,  Car.,  to  Washington,  D,  C, 
contracted  with  defendant  company  for  a 
train  at  a  certain  sum,  and  after  advertising 
the  time  sold  card  tickets  at  $6.50  for  the 
round  trip.  After  the  departure  of  the  train, 
and  when  it  had  proceeded  a  few  miles,  de- 
fendant's conductor  passed  through  the  cars 
and  took  up  the  card  tickets,  and  in  lieu 
thereof  gave  coupon  tickets  in  order  that 
the  connecting  roads  might  hold  vouchers 
to  obtain  their /ri?  rata  share  of  the  excur- 
sion money,  in  settling  with  defendant. 
Held,  that  this  did  not  change  the  original 
contract  with  the  managers.  McRae  v. 
Wilmington  &»  W.  R.  Co.,  18  Am.  &•  Eng. 
R.  Cas.  316,  88  M.  Car.  526,  43  Am. 
Rep.  745. 

The  terms  of  the  contract,  contained  in 
the  coupon  ticket,  did  not  confer  the  right 
upon  plaintiff  excursionist  to  return  on  a 
regular  train,  even  at  an  earlier  day  than 
that  advertised  for  the  excursion,  without 
paying  regular  fare.  McRae  v.  Wilmington 
&»  W.  R.  Co.,  18  Am.  &*  Eng.  R.  Cas.  316, 
88  N.  Car.  526,  43  Am.  Rep.  745. 

In  a  suit  by  plaintiil  against  the  company 
to  recover  damages  for  an  assault  by  the 
conductor,  who  attempted  to  put  him  of!  a 


regular  train  unless  the  fare  was  paid,  plain- 
tiff testified  among  other  things  that  he 
supposed  he  had  the  right  to  return  on  any 
train  after  the  delivery  of  the  coupon 
ticket,  but  was  compelled  to  pay  additional 
fare  for  such  privilege,  field,  error  in  the 
court  to  charge  the  jury  that  they  might 
consider  the  understanding  and  agreement 
of  the  parties  in  determining  the  character 
of  such  ticket,  there  being  no  evidence  of 
any  agreement  between  plaintiflf  and  de- 
fendant. McRae  v.  Wilmington  &*  W.  R. 
Co.,  18  Am.  6-  Eng.  R.  Cas.  316,  88  A^.  Car. 
526,  43  Am.  Rep.  745. 

68.  Detaclinient  of  coupons.  — 
Where  an  excursion  ticket  having  two 
coupons  is  conditioned  that  if  detached 
they  shall  be  void,  the  acceptance  by  the 
conductor  of  one  of  the  coupons  from  the 
passenger  who  presents  both  is  a  waiver 
of  such  condition,  notwithstanding  that  by 
mistake  the  conductor  takes  the  returning 
instead  of  the  Roing  coupon.  Pennsylvania 
Co.  V.  /iray,  125  Ind.  229,  25  N.  E.  Rep.  439. 

A  passenger  offered  detached  coupons  for 
his  fare,  and  was  arrested  for  fraudulently 
evading  payment.  Held,  in  an  action  for 
false  imprisonment,  that  evidence  that  he 
had  frequently  seen  the  conductor  accept 
similar  coupons  was  admissible.  Marshall 
V.  Boston  &*  A.  R.  Co.,  31  Am.  &•  Eng.  R. 
Cas.  18,  145  Mass.  164. 

Conditions  in  a  coupon-ticket  book  that 
the  coupons  are  to  be  detached  in  con- 
ductor's presence,  and  to  be  accepted  for 
passage  only  when  accompanied  by  the 
ticket,  are  not  waived  by  sometimes  allow- 
ing passengers  to  pay  their  fares  with  cou- 
pons without  showing  their  books.  Boston 
&*  M.  R.  Co.  V.  Chipman,  34  Am.  <S-  Eng. 
R.  Cas.  336,  146  Mass.  107,  5  A':  Eng.  Rep. 
572,  14  A'^.  E.  Rep.  940. 

A  passenger  holding  a  commutation  cou- 
pon ticket  which  provides  that  the  coupons 
shall  be  void  if  detached  by  any  one  other 
than  the  conductor,  and  that  the  ticket  shall 
be  shown  to  the  conductor  on  each  trip, 
who  shall  detach  the  coupons  for  the  num- 
ber of  miles  to  be  traveled,  technically 
violates  the  contract  by  detaching  the 
coupons  himself;  but  if  while  detaching 
them  his  attention  is  called  by  the  con- 
ductor to  the  fact  that  it  is  his  duty  to 
detach  them,  the  passenger  should  at  once 
desist,  and  hand  the  ticket  and  coupons  to 
the  conductor,  in  which  event  it  would  be 
the  duty  of  the  latter,  if  he  saw  the  coupons 


1061 


TICKETS  AND   FARES,  60-71. 


*•* 


it**- 


detached  or  could  readily  ascertain  by  in- 
spection that  they  had  been  detached  from 
the  ticket,  to  accept  them ;  but  he  is  not 
bound  to  accept  the  coupons  without  seeing 
the  ticket.  Louisvillt,  N.  &>  G.  S.  K,  Co.  v. 
Harris,  i6  Am,  &*  Etig.  Ji,  Cos.  374,  9  Lea 
{T*HH.)  180, 

In  such  case  if  the  passenger  should  re- 
fuse to  deliver  the  ticket  to  the  conductor 
on  demand,  and  insist  upon  making  pay- 
ment of  his  fare  with  coupons  which  he  him- 
self had  detached,  it  would  be  a  violation  of 
the  contract  for  wiiich  he  might  be  put  od 
the  train,  with  such  force  as  might  be  neces- 
sary ;  and  he  could  not  regain  the  right  to 
ride  by  tendering  his  fare,  while  being 
ejected,  but  in  a  rude,  boisterous,  or  in- 
sulting manner.  Louisville,  N.  &^  G.  S.  K. 
Co.  V.  Harris,  16  Am,  &*  Eng.  K.  Cas.  374, 
9  Lea  (Tenn.)  180. 

A  regulation  printed  upon  the  back  of  a 
book  of  commutation  tickets  and  signed  by 
the  passenger  requiring  conductors  alone  to 
detach  coupons  is  reasonable,  and  is  part  of 
the  contract  between  the  company  and  the 
passenger.  If  the  latter  refuses  to  permit 
the  conductor  to  detach  the  coupons  and 
insists  upon  doing  it  himself,  he  may  be 
put  off  the  train.  Norfolk  &•  W.  A\  Co.  v. 
tVysor,  26  Am.  &*  Eng.  R.  Cas.  234,  82  Va. 
250.  Boston  6-  M,  R.  Co.  v.  Chipman,  34 
Am,  &»  Eng.  R,  Cas.  336,  146  Mass,  107,  5 
N,  Eng,  Rep.  572,  14  N.  E.  Rep.  940. 

A  round-trip  ticket,  punctured  for  sepa- 
ration into  two  parts,  and  having  on  the 
"  going "  part  the  words  "  Not  good  for 
passage,"  and,  on  a  line  therewith,  on  the 
"returning"  part  the  words  "  if  detached," 
is  nevertheless  good  for  passage  where  the 
parts  have  become  separated  by  accident,  if 
both  parts  are  in  good  faith  presented  to 
the  conductor  on  the  outward  trip.  Wight- 
man  v.  Chicago  &*  N,  W.  R,  Co.,  73  Wis, 
169,  a  L,  R,  A.  185,  40  N.  W,  Rep,  689. 

4.  Round-trip  and  Excursion  Tickets, 

a.  In  General. 

60.  Carrier'^  duty  to  offer  for  sale 
—Bights  of  holder.— The  right  of  a  pas- 
senger to  be  carried  upon  a  tourist's  or 
round-trip  ticket  depends  upon  the  written 
contract  signed  by  him  thereon,  and  not 
upon  representations  made  by  ai^  officer 
of  the  company.  Mosher  \.  St.  Louis,  I. 
M,  &*  S.  R.  Co.,  34  Am,  &•  Eng,  R.  Cas.  339. 


127  [/,  S.  390, 8 5«/.C/.  Rep.  \ii\',  affirming 
2 1  Am.  Sf  Eng.  R.  Cas,  283,  23  Fed,  Rep.  326. 
Upon  complaint  by  workmen  residing  in 
K.  district,  that  cheap  return  tickets  by  the 
workmen's  train  fr  a  W.  were  only  availa- 
ble for  the  terminal  station  at  B.  street,  and 
that  although  workmen  could  book  by 
these  trains  for  the  intermediate  stations, 
they  were  charged  the  full  ordinary  fares, 
the  company  contended  that  the  number 
of  workmen's  tickets  issued  and  used  daily 
on  this  line  was  already  as  great  as  was  con- 
sistent with  its  safe  working,  and  that  the 
trains  woulii  be  overcrowded  if  it  had  to 
convey  workmen,  not  only  to  and  from  B. 
street,  but  to  and  from  other  stations  as  well. 
Held,  by  the  commissioners,  that  there  was 
no  sufficient  reason  why  the  cheap  work- 
men's tickets  should  not  be  as  available  for 
workmen  alighting  at  the  intermediate  sta- 
tions as  for  workmen  going  to  the  terminus. 
In  re  Inquiry  under  Cheap  Trains  Act,  6 
Ry.  <S-  C.  T.  Cas,  19. 

70.  Duty  to  honor  and  liability  for 
refusal. — If  the  purchaser  of  a  round-trip 
ticket,  after  paying  for  and  receiving  it, 
performs  all  the  stipulations  of  the  contract 
on  his  part,  or  ofTers  to  do  so  in  proper  time 
and  manner,  the  company  is  bound  to  rec- 
ognize and  honor  the  ticket  when  and 
wherever  duly  presented,  notwithstanding 
any  mistake  or  omission  by  its  agents  in 
signing  or  stamping  the  same.  Head  v. 
Georgia  Pac.  R.  Co.,  79  Ga.  358,  7  S,  E, 
Rep.  217.— DiSTiNGVisniNG  Moses  V,  East 
Tenn.,  V.  &  G.  R.  Co.,  73  Ga.  356. 

A  passenger  who  holds  an  unused  round- 
trip  ticket  is  entitled  to  ride  on  the  return 
part  of  it  without  regard  to  who  detached 
it  from  the  other  part ;  and  for  a  stronger 
reason  is  he  entitled  to  ride  when  it  is  de- 
tached by  the  passenger  in  the  presence  of 
the  conductor,  although  the  other  pan  is 
marked  "  not  good  if  detaclied."  Chicago, 
St,  L,  &*  P,  R,  Co,  V.  Holdridge,  118  Ind, 
ii\,2oN,  E,Rep,Zn, 

If  a  conductor  refuses  to  accept  such 
return  coupon  from  the  passenger,  where  it 
is  detached  in  the  presence  of  the  conductor, 
and  requires  the  passenger  to  leave  the 
train  at  the  next  station,  the  company  is 
liable  in  damages.  Chicago,  St,  L,&*  P,  R, 
Co.  V.  Holdri^e,  118  Ind.  281,  20  N.  E. 
Rep,  837. 

71.  Interpretation  and  effect,  gen- 
erally.— A  company  employed  a  band  for 
an  excursion,  agreeing  to  pay  so  much  in 


TICKETS  AND   FARES,  72,  78. 


1066 


men  residing  in 
n  tickets  by  the 
rere  only  BvaiKn* 
at  B.  street,  and 
could  book  by 
lediate  stations, 
1  ordinary  fares, 
lat  the  number 
and  used  daily 
;reat  as  was  con- 
g,  and  that  the 
led  if  it  had  to 
to  and  from  B. 
'Stations  as  well. 
I,  that  tiiere  was 
he  cheap  work- 
as  available  for 
n termed  iate  sta- 
to  the  terminus. 
>  Trains  Act,  6 

d  liability  for 

of  a  round-trip 
id  receiving  it, 
I  of  the  contract 
)  in  proper  time 
is  bound  to  rec- 
:ket  when  and 
lotwithstanding 
y  its  agents  in 
lame.  Head  v. 
f.  3S8,  7  S.  E. 
Moses  V.  East 
a.  356. 

I  unused  round- 
on  the  return 
who  detached 
d  for  a  stronger 
when  it  is  de- 
the  presence  of 
e  other  part  is 
bed."    Chicago, 
'ridge,  118  Ind. 

to  accept  such 
lenger,  where  It 
f  the  conductor, 
to  leave  the 
:he  company  is 

281.  20  N.  E. 

d  effect,  gen- 

yed  a  band  for 
>ay  so  much  in 


money  and  to  furnish  a  ticket  for  a  lady  for 
each  member  of  the  band.  These  tickets 
were  marked  so  as  to  distinguish  them 
from  common  tickets.  Plaintiff  procured 
one  of  these  tickets  from  his  brother,  who 
was  a  member  of  the  band,  but  the  con- 
ductor refused  it  and  put  him  off.  Held, 
that  it  was  not  error  to  instruct  the  jury 
that  the  ticket  did  not,  on  its  face,  entitle 
plaintiff  to  passage.  Crosby  v.  Maine  C.  If. 
Co.,  69  Me.  418. 

In  such  case  it  was  not  error  to  exclude 
evidence  offered  by  plaintiff  as  to  instruc- 
tions that  his  father  gave  him  to  ascertain 
before  the  excursion  party  started  whether 
he  could  ride  on  the  ticket,  where  such 
conversation  was  not  communicated  to  the 
company  or  its  agents.  Crosby  v.  Maine  C. 
A\Co.,69Me.4i8. 

An  excursion  ticket  which  contains  a 
special  contract  is  conclusive,  and  advertise- 
ments of  the  tour  are  inadmissible  in  evi- 
dence to  vary  its  terms.  Howard  v.  Chicago, 
St.  L.  &*  N.  0.  R.  Co.,  18  Am.  &*  Eng.  R. 
Caj.  313,  61  Miss.  194. 

Such  ticket  when  accepted  is  a  contract 
in  writing,  and  may  not  be  altered  in  its 
effect  by  parol  agreement  at  the  time  of  its 
execution,  in  the  absence  of  fraud,  etc. 
Abram  v.  Gulf,  C.  4*  S.  F.  R.  Co.,  83  Tex. 
61,  18  S.  W.  Rep.  321. 

A  ticket  holder  claiming  fraud  and  im- 
position upon  him  by  the  carrier  should 
allege  such  acts  of  fraud  and  deception. 
Without  such  allegation  the  testimony  is 
inadmissible.  Abram  v.  Gulf,  C.  &»  S.  F, 
R.  Co.,  83  Tex.  61,  18  S.  tV.  Rep.  321. 

72.  where   Issuing  carrier  is 

agent  for  connecting  lines. — Where  a 
person  has  purchased  and  accepted  a  cou- 
pon return  ticket  containing  a  notice  that 
the  company  selling  it  acts  only  for  itself 
over  its  own  line  and  as  agent  for  the  other 
lines  specified  on  the  coupons,  but  assumes 
no  responsibility  beyond  its  own  line,  the 
company  selling  the  ticket  is  not  responsi- 
ble for  injuries  sustained  upon  a  connecting 
railroad.  Kerrigan  v.  Southern  Pac.  R.  Co., 
41  Am.  &*  Eng.  R.  Cas.  28,  81  Cal.  248,  22 
Pac.  Rep.  677. 

Where  a  company  issues  a  through  ticket 
for  itself  and  as  agent  for  other  lines  on 
the  route,  and  the  ticket  is  to  be  restamped 
for  return  passage  by  the  ticket  agent  of 
the  terminal  line,  such  agent  is  thereby 
made  the  agent  of  all  the  companies,  and 
the  initial  road  is  responsible  only  for  its 


own  breaches  of  the  contract.  Bethea  v. 
Northeastern  R.  Co.,  a6  So.  Car.  91,  i  S.  E. 
Rip.  372. 

73.  Who  may  use  —  Holder  of  re- 
turn coupon.*— Where  one,  holding  an 
unused  round-trip  ticket  from  W.  to  M., 
enters  a  train  at  M.,  the  return  station,  he  it 
entitled  to  have  the  return  part  of  such 
ticket,  by  whomsoever  detached  from  the 
other  part,  accepted  in  payment  for  hit 
transportation.  Chicago,  St.  L.  &*  P.  R. 
Co.  V.  Holdridge,  118  Ind.  281,  20  N.  E. 
Rep.  837. 

A  round-trip  excursion  ticket,  used  by 
the  purchaser  in  going  to  the  station  named 
therein,  and  then  sold  and  transferred,  no 
restrictions  appearing,  is  valid  in  the  hands 
of  the  holder,  and  entitles  him  to  a  return 
passage,  subject  to  prescribed  limitations  as 
to  time,  etc.  Carsten  v.  Northern  Pac.  R. 
Co.,  44  Am.  5-  Eng.  R.  Cas.  392,  44  Minn. 
454,  47  N.  W.  Rep.  49.  —  Followed  in 
Hoffman  v.  Northern  Pac.  R.  Co.,  45  Minn. 
li.— Hoffman  v.  Northern  Pac.  R.  Co.,  45 
Minn.  53,  47  N,  IV.  Rep.  312.— FOLLOW- 
ING Carsten  v.  Northern  Pac.  R.  Co.,  44 
Minn.  454. 

And  where  a  conductor  refuses  to  recog- 
nize such  ticket  in  the  hands  of  the  holder, 
who  is  thereby  entitled  to  ride  thereon,  and 
demands  of  him  the  regular  fare,  and  at- 
tempts to  eject  him  by  force  for  non-pay- 
ment thereof,  the  conoany  is  liable  in 
damages  for  the  assaul  d  the  jury,  in 
assessing  the  damages  y  consider  the 
annoyance,  vexation,  and  mdignity  suffered 
by  him.  Carsten  v.  Northern  Pac.  R.  Co., 
44  Am.  &»  Eng.  R.  Cas,  392,  44  Minn.  454, 
47  N.  IV.  Rep.  49.— Distinguished  in 
Mahoney  v.  Detroit  St.  R.  Co.,  93  Mich. 612. 

By  mistake  a  conductor  returned  to  a 
passenger  who  presented  a  round-trip  ticket 
the  wrong  part  thereof.  On  the  return  trip 
the  passenger  presented  that  portion  of  the 
ticket,  but  the  conductor  refused  it.  The 
passenger  had  not  before  noticed  the  mis- 
take but  then  explained  it  to  the  conductor, 
but  he  refused  to  carry  the  passenger  with- 
out payment  of  fare,  which  was  refused  and 
the  passenger  ejected  from  the  train.  Held, 
that  the  company  was  liable.  Kansas  City, 
M.  &*  B.  R.  Co.  V.  Riley,  47  Am.  «-  Eng. 
R.  Cas.  476,  68  Miss.  765,  9  So.  Rep.  443. 


*  Round-trip  tickets.  Detachment  of  wrongs 
coupon  by  conductor,  see  note,  47  Am.  &  Eno. 
R.  Cas.  479. 


1060 


TICKETS  AND   FARES,  74-7«. 


it"' 


74.  Gk»od  on  what  train*.  —  Where 
the  custom  of  trains  to  stop  at  a  place  mis- 
leads a  person,  without  fault  on  his  part, 
into  the  belief  that  it  Is  a  flag  station,  and, 
relying  upon  that  custom,  he  buys  a  ticket 
to  and  from  such  place  from  an  agent  of 
the  company,  who  knows  that  it  is  his  in- 
tention to  use  it  in  returning  on  a  train 
which  does  not  stop  at  tiie  point  of  his  des« 
tination,  and  yet  falls  to  inform  ^lim  of  that 
fact,  the  company  will  be  liable  for  the 
failure  of  the  train  to  stop  when  properly 
flagged.  St.  Louis,  /.  M.  **  S.  R.  Co.  v. 
Adcock,  40  Am.  &*  Eng.R.  Cat.  682,  52  Ark. 
406,  12  5.  IV.  Rep.  874. 

The  purchase  of  a  round-trip  ticket  does 
not  create  the  relation  of  carrier  and  pas- 
senger iis  to  any  particular  train.  SpannagU 
▼.  Chicago  &*  A.  R.  Co.,  y  III.  Afip.  460. 

Where  an  excursion  ticket  is  sold  at  a  re- 
duced rate,  and  upon  special  conditions,  the 
terms  of  which  are  printed  on  the  ticket, 
and  one  of  the  conditions  is  that  it  shall  be 
used  "  for  a  continuous  trip  only,"  and  "  is 
net  good  to  stop  off,"  the  purchaser  who 
accepts  and  uses  it  is  bound  to  take  a  train 
which  will  carry  him  continuously  through 
from  one  station  to  the  other,  both  in  going 
and  returning,  and  may  not  stop  off  at  an 
intermediate  station  while  going  eithe;  way. 
Johnson  v.  Philadelphia,  IV.  &*  B.  R.  Co., 
18  Am.  &*  Eng.  R.  Cas.  304.  63  Md.  106.— 
Reviewing  Pennington  v.  Philadelphia, 
W.  &  B.  R.  Co..  62  Md.  9S. 

If  the  passenger  on  his  return  knowingly 
takes  a  train  which  does  not  go  as  far  as  the 
station  at  which  he  purchased  his  ticket, 
and  with  the  intention  of  stopping  off  at  an 
intermediate  station,  the  ofhcersof  the  com- 
pany are  justifled  in  refusing  to  accept  the 
return  coupon  of  the  ticket  for  his  fare,  and 
in  putting  him  oflF  on  his  refusal  to  pay  the 
regular  fare  demanded,  or  to  produce  a 
proper  ticket  to  the  station  at  which  he  in- 
tended to  stop.  And  it  is  no  excuse  for  his 
refusal  that  he  went  to  one  of  the  gate- 
keepers at  the  station  where  he  took  the 
train,  who  examined  his  ticket  and  negli- 
gently assigned  him  to  the  wrong  train. 
Johnson  v.  Philadelphia,  W.  &*  B.  R.  Co., 
18  Am.  &*  Eng.  R.  Cas.  304.  63  Afd.  106. 

Where  a  company  prohibits  passengers 
from  riding  on  freight  trains  without  a 
special  permit,  one  holding  an  excursion 
ticket  marked  "good  going  on  any  train  "  is 
not  entitled  to  ride  on  a  through  freight 
train  without  such  permit.     Thomas  v.  Chi- 


cago 5«  G.  T.  R.  Co.,  37  Am.  &*  Etig.  R.  Cas. 
108,  72  Mich.  355.  40  N.  W.  Rep.  463. 

Where  one  purchases  a  round-trip  ticket 
on  a  particular  day,  he  acquires  no  right  to 
ride  on  any  particular  train,  or  on  any  par- 
ticular class  of  trains,  unless  the  ticket  so 
states,  or  the  agent  of  the  company  so  in- 
formed him  at  the  time  of  the  purchase. 
By  the  purchase  of  the  ticket  he  acquired 
only  th<^  right  to  ride  subject  to  the  rca> 
sonable  regulations  of  the  company.  Clay* 
brook  V.  Hannibal  &*  Si.  J.  R.  Co.,  19  Mo, 
App.  432. 

Defendant's  regular  ticket  agent  sold  to 
plaintif!  a  ticket  good  only  on  a  special 
excursion  train,  which  defendant  had  hired 
to  a  third  person,  in  whose  charge  it 
was,  and  whose  name  was  signed  to  the 
ticket.  Plaintiff  was  not  aware  of  the  ar- 
rangement between  carrier  and  such  third 
person.  Held,  that  the  sale  of  the  ticket 
constituted  a  contract  of  transportation 
binding  upon  defendant.  Eddy  v.  Harris, 
47  Am.  &-  Eng,  R.  Cas.  473,  78  Tex.  66i,  15 
S.  W.  Rep.  107. 

75.  Good  for  how  long.  —A  round- 
trip  excursion  ticket,  not  limited  by  its 
terms,  is  good  until  used,  unless  the  pur- 
chaser was  personally  notified  to  the  con- 
trary at  the  time  he  bought  it.  The 
purchaser  is  not  bound  to  make  inquiries 
about  regulations  of  the  company  not 
printed  on  the  ticket.  Pennsylvania  R.  Co. 
V.  Spicker,  23  Am.  &•  Eng.  R.  Cas.  672,  105 
Pa.  St.  142. 

In  an  action  against  a  railroad  by  the 
holder  of  a  round-trip,  unlimited  ticket,  for 
refusing  to  accept  the  return  coupons  there- 
on, evidence  is  not  admissible  to  show  that 
by  the  regulations  of  the  company  such  ex- 
cursion tickets  were  not  good  after  a  certain 
date,  and  that  general  public  notice  of  such 
regulations  was  given  in  the  office  where  the 
ticket  was  sold,  and  elsewhere,  by  posters, 
circulars,  and  excursion  books,  no  offer  hav- 
ing been  made  to  show  tliat  direct  notice  of 
such  regulation  was  given  to  plaintif!  at  the 
time  he  purchased  the  ticket.  Pennsylvania 
R.  Co.  V.  spicker,  23  Am.  &»  Eng.  R.  Cas. 
672, 105  Pa.  St.  142. 

70.  Ticket  taken  in  exchanere  for 
excursion  ticket. — If  an  excursion  ticket 
provides  that  it  is  exchangeable  for  another 
good  for  the  day  and  train  designated  in  the 
latter,  the  holder  of  the  exchange  ticket 
cannot  travel  on  a  later  train  and  day  than 
those  designated.    Howard  v.  Chicago,  St, 


TICKETS  AND   FARES,  77-80. 


1067 


&*  Et^.  R.  Cas. 
Ktp.  463. 
}und-trip  ticket 
ires  no  right  to 
or  on  any  par- 
is  tlie  ticlcct  so 
:ompany  so  In- 
(  the  purchase, 
cet  he  acquired 
ject  to  the  rca- 
ompany.  Clay- 
Ji.  Co.,  19  Afo. 

et  agent  sold  to 
ly  on  a  special 
ndant  had  hired 
hose  charge  it 
1  signed  to  the 
iware  of  the  ar- 
and  such  third 
,le  of  the  ticltet 
[  transportation 
EilJy  V.  Harris, 
J,  78  Tex.  661,  IS 

tug.  —  A  round- 

t  limited  by  its 
unless  the  pur- 
ified to  the  con- 
bought  it.  The 
)  malce  inquiries 
company  not 
msyivania  Ji.  Co. 
.  K.  Cas.  672,  105 

railroad  by  the 
mited  ticket,  for 
rn  coupons  iherc- 
ible  to  show  that 
:onipany  such  ex- 
tod  after  a  certain 
lie  notice  of  such 
le  office  where  the 
rhere,  by  posters, 
»oks,  no  ofier  hav- 
it  direct  notice  of 
to  plaintiff  at  the 
et.  Pennsylvania 
.  &*  Eng.  R.  Cas. 

L  exchange  for 

n  excursion  ticket 
;eable  for  another 
designated  in  the 
exchange  ticket 
rain  and  day  than 
rd  V.  Chicago,  St. 


L.  S»  N.  0.  R.  Co.,  in  Am.  ^  Er^.  R.  Cas. 
313,  61  Miss.  194. 

77.  When  regular  fare  must  he 
paid.  —  Where  a  company  advertises  a 
round  trip  "  for  one  fare,"  passengers  are 
chargeable  with  notice  that  it  necessarily 
impliei  the  purchase  of  a  special  ticket. 
St.  Louis  &*  C.  R.  Co.  V.  Carroll,  13  ///. 
APP.  585. 

Where  a  passenger  fails  to  get  such  ticket 
owing  to  the  company  having  none  on  sale, 
and  is  carried  one  way  by  a  conductor  un- 
derstanding the  circumstances,  for  half  fare, 
if  he  enters  the  train  to  return  without  a 
ticket  he  must  pay  full  fare  or  be  put  ofl. 
St.  Louis  &»  C.  R.  Co.  V.  Carroll,  13  ///. 
App.  585. 

A  return  ticket  only  entitles  the  passen- 
ger to  travel  to  and  from  the  stations 
named  ia  the  ticket.  If  tiie  passenger  goes 
beyond  the  station  named  to  another  sta- 
tion, he  must  pay  the  additional  fare,  even 
though  the  price  of  a  return  ticket  from  the 
departure  station  to  the  further  station  be 
the  same.  Great  Western  R.  Co.  v.  Pocock, 
41  L.  T.  415,  3  Ry.  «S-  C.  T.  Cas.  xxi' 

b.  Rules  or  Stipulations  Requiring  Identi- 
fication of  Passenger  and  Stamp- 
ing of  Return  Tickets. 

78.  Reasonableness    of  rule.  —  A 

regulation  of  a  company  that  a  "special 
excursion  ticket "  shall  not  be  valid  for  the 
return  journey  unless  presented  by  the  origi- 
nal purchaser  to  the  authorized  agent  of 
the  company,  to  be  stamped  on  the  back, 
is  not  unreasonable,  and  if  the  passenger 
does  not  comply  with  the  condition  he  has 
no  right  to  use  the  ticket  for  the  return 
journey.  Bowers  v.  Pittsburgh,  Ft.  W.  &* 
C.  R.  Co.,  158  Pa.  St.  302,  27  Atl.  Rep.  893. 

A  stipulation  in  a  ticket  sold  as  good  for 
thirty  days,  that  the  purchaser  shall  have 
himself  identified  as  such  at  the  terminal 
point  of  his  journey,  and  that  the  ticket 
■hall  be  good  fifteen  days  only  after  identi- 
fication, is  not  illegal  or  unreasonable,  but 
is  binding  on  the  party  who  thus  contracts 
with  tlie  company.  Rawitzky  v.  Louisville 
6-  N.  R.  Co.,  31  Am.  6-  Eng.  R.  Cas.  129, 
40  La.  Ann.  47,  3  So.  Rep.  387. 

The  carrier  issuing  such  ticket  at  a  re- 
duced rate  has  the  right  to  limit  the  privi- 
lege of  its  use  to  the  purchaser.  To  secure 
this  right  and  prevent  imposition,  identifi- 
cation of  the  purchaser  becomes  necessary. 


The  manner  of  identification  may  be  the 
subject  of  contract.  Abram  v.  Gul/,  C.  ^ 
S.  F.  R.  Co.,  83   Tex.  (ti,  \Z  S.  W.  Rep.  321. 

70.  Such  conditions  in  ticket  are 
valid.  —  Defendant  sold  to  plaintiff  an  ex- 
cursion ticket  from  L.  to  C.  and  return.  The 
right  to  a  return  passage  was  conditioned 
upon  the  presentation  of  the  ticket  to  the 
agent  at  C,  its  dating  and  stamping  by  him, 
and  the  affixing  of  the  signature  of  plaintiff 
to  a  printed  statement  on  the  back  of  the 
ticket,  as  evidence  that  he  was  the  original 
purchaser.  Held,  that  the  condition  was 
reasonable,  and  was  a  condition  precedent 
to  plaintiff's  right  to  such  return  passage, 
and  that  the  conductor  to  whom  the  ticket 
was  presented  was  not  called  upon  to  in- 
vestigate as  to  the  identity  of  plaintiff. 
Edwards  v.  Lake  Shore  &*  At.  S.  R.  Co., 
81  Mich.  364,  45  A'.  W.  Rep.  827.  Cloud 
V.  St.  Louis,  I.  M.  &*  S.  R,  Co.,  14  Mo. 
App.  136. 

The  purchaser  of  such  a  ticket  who  has 
failed  to  comply  with  its  terms  cannot,  in 
the  absence  of  evidence  of  a  waiver  or  of 
want  of  opportunity  to  know  its  contents 
when  he  purchased  it,  have  an  action  against 
the  railroad  because  he  was  ejected  from  the 
car  of  a  connecting  road  for  failure  to  pay 
his  fare.  Cloud  v.  St.  Louis,  I.  M.  &*  S.  R. 
Co.,  14  Mo.  App.  136. 

A  ticket  had  the  following  notice  printed 
in  large  letters  on  its  face :  "  Notice  to 
purchaser.  Read  the  above  contract  care- 
fully—it is  important— and  take  notice  that 
the  contract  must  be  stamped  at  Chicago, 
III.,  before  ticket  will  be  accepted  for  return 
trip."  Held,  that  the  condition  was  not  un- 
reasonable, and  that  it  was  the  passenger's 
duty  to  have  informed  himself  of  its  exist- 
ence. Bowers  v.  Pittsburgh,  Ft.  W.  &■»  C. 
R.  Co.,  158  Pa.  St.  302,  27  Atl.  Rep.  893. 

A  stipulation  in  a  ticket  sold  at  reduced 
rates  that  it  shall  not  be  good  for  the 
return  trip  unless  the  passenger  identifies 
himself  to  the  satisfaction  of  the  company's 
agent  before  beginning  the  return  trip,  and 
the  ticket  is  stamped  by  him,  is  not  un- 
reasonable nor  contrary  to  the  policy  of  the 
law.  Bethea  v.  Northeastern  R.  Co.,  26  So. 
Car.  91,  I  S.  E.  Rep.  372. 

80.  and  binding  upon  pur- 
chaser. —  A  round-trip  ticket  contained  a 
condition  that  to  be  good  for  the  return 
trip  it  must  be  restamped  by  the  agent  at  a 
certain  place  named,  which  was  not  on  the 
route  cjilled  for;  but  it  was  evident  from  the 


1068 


TICKETS  AND  FARES,  81-88. 


i|ll»: 

•!•«?; 


\w 


whole  contract  that  the  restamping  was  to 
be  done  at  the  terminus  before  tlie  return 
trip  was  commenced,  and  that  the  place 
named  was  only  a  misprint.  NeM,  that  as 
the  holder  could  not  be  misled  thereby,  the 
provision  requiring  restamping  was  not  in- 
validated. Btthea  v.  Northeasttrn  R.  Co., 
26  So.  Car,  91,  I  5.  E.  Rep.  372. 

If  a  passenger  accepts  an  excursion  ticket 
containing  a  condition  that  it  cannot  be 
used  on  return  passage  unless  the  manner 
of  identification  specified  has  been  complied 
with,  has  had  opportunity  to  knov;  its  con- 
ditions, uses  it,  and  the  carrier  has  resorted 
to  no  unfair  means  or  deception,  the  pas- 
senger's assent  to  the  same  will  be  conclu* 
sively  presumed.  It  is  not  necessary  for  the 
purchaser  to  sign  the  contract.  Abram  v. 
Gulf,  C.  5-  S.  F.  R.  Co.,  83  Tex.  61,  18  5". 
VV.  Rep.  121. 

81.  \iaiver  of  the  condition.— 
When,  by  the  express  conditions  of  a  ticket 
accepted  and  signed  by  a  passenger,  the 
right  to  return  upon  such  ticket  is  condi- 
tional upon  its  being  signed  and  stamped 
by  the  station  agent  at  the  terminus  of  the 
route,  and  no  agent  or  employ6  of  the  com- 
pany is  authorized  to  alter,  modify,  or  waive 
any  condition,  the  action  of  the  baggage 
master  in  punching  the  ticket  and  checking 
the  passenger's  baggage,  or  that  of  the  brake- 
man  in  admitting  him  to  the  train,  does  not 
estop  the  company  from  denying  the  pas- 
senger's right  to  transportation.  Boylan  v. 
Hot  Springs  R.  Co.,  40  Am.  &*  Eng,  R.  Cas, 
666,  t32  U.  S.  146,  10  Sup.  a.  Rep.  50.— 
V  LOWED  IN  New  York,  L.  E.  &  W.  R. 
Cf  V.  Bennett,  50  Fed.  Rep.  496,  6  U.  S. 
App.  95,  I  C.  C.  A.  544. 

If  a  round-trip  ticket  provides  that  it  must 
be  stamped  and  the  passenger's  signature 
witnessed  for  identification  before  beginning 
the  return  trip,  the  purchaser  who  fails  to 
comply  with  such  conditions  cannot  main- 
tain an  action  against  the  company  because 
he  was  ejected  from  a  car  on  a  connecting 
line  for  failure  to  pay  his  fare,  in  the  absence 
of  evidence  of  a  waiver  or  want  of  oppor- 
tunity to  know  the  contents  of  such  ticket 
when  he  purchased  it.  Cloud  v.  5/.  Louis, 
I.  M.  &*  S.  R.  Co.,  14  Mo.  App.  136. 

In  such  case,  where  the  contract  is  made 
by  the  agent  of  a  connecting  road,  the  waiver 
of  its  termt  by  one  of  the  roads  will  not 
bind  the  others.  A  conductor  is  not  a  gen- 
eral agent  of  the  road  authorized  to  waive 
the  terms  of  a  written  contract  of  carriage. 


Cloud  v.  St.  Louis,  I,  M.  *•  S.  R.  Co.,  14 
Mo.  App.  136. 

A  contract  requiring  a  passenger  to  iden- 
tify himself  and  have  the  ticket  stamped  by 
an  agent  at  a  particular  place  may  be  waived 
by  parol.  Taylor  v.  Seaboard  &*  R.  R.  Co., 
34  Am.  &*  Eng.  R.  Cas.  344,  99  A'^  Car.  185, 
6  Am.  St.  Rep.  509,  5  S.  E.  Rep.  750. 

To  show  a  waiver  of  an  agreement  by  a 
passenger  to  identify  himself,  and  have  his 
ticket  stamped  by  a  particular  agent,  it  is 
competent  to  prove  that  an  agent  of  the 
carrier,  other  than  that  at  the  station  des- 
ignated in  the  contract,  recognized  the 
ticket  by  permitting  the  passenger  to  iden- 
tify himself  and  by  stamping  it  for  the  re- 
turn trip.  Taylor  v.  Seaboard  &»  R.  R.  Co., 
34  Am.  &*  Eftg.  R.  Cas.  344,  99  N.  Car. 
185,  6  Am.  St.  Rep.  509,  5  S.  E.  Rep.  750. 

The  fact  that  a  gateman  permitted  a  pas- 
senger to  pass  through  the  gate  without 
examining  and  punching  a  ticket,  and  that 
a  conductor  of  a  sleeping  car  failed  to  notice 
that  the  ticket  was  unstamped,  is  not  evi- 
dence of  a  waiver  of  a  condition  by  the 
company,  requiring  an  excursion  ticket  to 
be  stamped  before  the  return  trip  begins. 
Bowers  v.  Pittsburgh,  Ft.  W.  &*  C.  R.  Co., 
1 58  Pa.  St.  302,  27  Ail.  Rep.  893. 

82.  Failure  to  have  ticket 
stamped. — Where  a  person  has  failed  to 
have  a  return  ticket  stamped  as  required  by 
an  express  condition  contained  in  it,  and 
has  absolutely  declined  to  pay  fare  upon 
the  train,  the  fact  that  the  conductor  did 
not  inform  him  of  the  amount  of  the  fare 
before  ejecting  him  is  immaterial.  Boylan 
V.  Hot  Springs  R.  Co.,  40  Am.  S*  Eng.  R. 
Cas.  666,  132  (/.  S.  146,  10  Sup.  Ct.  Rep.  50. 

83.  Absence  of  agrent.— A  round-trip 
ticket,  good  over  different  roads,  contained 
the  provisions  that  the  company  issuing  it 
would  not  be  liable  beyond  its  own  line,  and 
that  the  ticket  must  be  stamped  by  an  agent 
before  starting  on  the  return  trip.  Absence 
of  the  agent  prevented  the  stamping  of  the 
ticket,  and  the  company  selling  it  refused 
to  accept  it  over  its  road  for  the  return 
trip.  Held,  that  it  was  not  liable.  Mosher 
v.  St.  Louis,  I.  M.  &*.  S.  R.  Co.,  34  Am.  &* 
Eng.  R.  Cas.  339,  127  U.  S.  390,  8  Sup.  Ct. 
Rip.  1324;  affirming  21  Am.  Sr*  Eng.  R.  Cas. 
283,  23  Fed.  Rep.  326.— DISTINGUISHED  IN 
Pouilin  V.  Canadian  Pac.  R.  Co.,  47  Fed. 
Rep.  858.  Followed  in  Boylan  v.  Hot 
Springs  R.  Co.,  40  Am.  &  Eng.  R.  Cas.  666, 
132  U.  S.  146,  10  Sup.  Ct.  Rep.   50;  New 


TICKETS  AND    FARES,  84-87. 


1069 


S.  It.  Co.,  14 

enger  to  iden- 
et  stamped  by 
may  be  waived 
l&'R.R.  Co., 
9  N,  Car.  185, 
p.  750. 

^reement  by  a 
,  and  have  his 
ar  agent,  it  is 
agent  of  the 
le  station  des- 
cognized  the 
enger  to  iden- 
it  for  the  re- 
ISfR.R.  Co., 
\,  99  A';  Car. 
E.  Rep.  750, 
rmitted  a  pas- 
gate  without 
cket,  and  that 
ailed  to  notice 
ed,  is  not  evi- 
dition  by  the 
sion  ticket  to 
n  trip  begins. 
&»  C.  R.  Co., 

93- 

ave    ticket 

has  failed  to 
as  required  by 
led  in  it,  and 
>ay  fare  upon 
conductor  did 
nt  of  the  fare 
ertal.  Boylan 
n.  &*  Eng.  R. 
p.  Ct.  Rep.  50. 
—A  round-trip 
ids,  contained 
>any  issuing  it 
I  own  line,  nnd 
ed  by  an  agent 
trip.  Absence 
amping  of  the 
ling  it  refused 
or  the  return 
iable.  Mother 
Co.,  34  Am.  &* 
J90,  8  Sup.  Ct. 
V*Eng.  R.  Ca.t. 
INGUISHED  IK 
.  Co.,  47  Fed. 
3oylan  v.  Hot 
g.  R.  Cas.  666, 
Rep.   50;  New 


! 


York,  L.  E.  &.  W.  R.  Co.  v.  Bennett,  $0 
Fed.  Rep.  496,  6  U.   S.  App.  95,  i  C.  C. 

A.  544- 

84.  Effect  of  refusal  of  agent  to 
stamp  upon  presentation.  —  Where  a 
passenger  holds  a  round-trip  ticket  good 
over  different  roads  which  provides  that  the 
passenger  must  identify  himself  to  the  satis- 
faction of  the  agent  of  the  terminal  line  and 
have  the  ticket  stamped  by  him  before 
beginning  the  return  trip,  such  agent  is 
made  the  agent  of  all  the  companies,  and 
the  initial  road  is  liable  only  for  its  own 
breach  of  the  contract ;  and  the  refusal  of 
such  agent  to  stamp  the  ticket,  on  the 
ground  that  he  is  not  satisfied  as  to  the 
identity  of  the  holder,  is  conclusive ;  and  it 
is  error  to  submit  to  the  jury  whether  or 
not  the  agent  was  satisfied.  Bethea  v. 
Northeastern  R.  Co.,  26  So.  Car.  91,  i  S.  E, 
Rep.  372. 

Plaintiff  purchased  for  his  wife  a  round- 
trip  ticket  from  D.  to  S.,  containing  a  stip- 
ulation that  in  order  for  it  to  be  good  for 
the  return  passage  it  should  be  presented 
by  her  within  a  stated  time  to  the  agent  of 
defendant  company  at  S.,  and  should  be 
signed  and  stamped  by  him.  She  duly 
presented  the  ticket  to  such  agent,  who 
wrongfully  refused  to  sign  and  stamp  it; 
and  when  she  presented  it  to  defendant's 
train  conductor  on  the  return  trip,  he 
refused  to  honor  it,  treated  her  with  great 
rudeness,  and  as  she  had  not  money  with 
her  to  pay  her  fare,  exacted  the  deposit  of 
her  watch  as  security  for  the  fare.  Held, 
that  plaintiff's  wife  was  not  a  trespasser  on 
defendant's  train  on  the  return  trip,  her 
contract  right  of  passage  not  being  lost 
because  of  the  agent's  refusal  to  sign  and 
stamp  the  ticket,  but  that  such  refusal  was 
well  pleaded  and  proved  by  plaintiff,  in  con- 
lection  with  the  otht;  facts,  as  germane 
to  his  cause  of  action  in  damage  for  the 
wrongs  suffered  by  his  wife.  Missouri  Pac. 
R.  Co.  V.  Martino,  2  Tex.  Civ.  App.  634,  18 
S.  W,  Rep.  1066,  21  S.  IV.  Rep.  781. 

5.  Limited  Tickets. 

85.  Right  to  limit  as  to  time— 
"Waiver.* — An  indorsement  upon  an  ex- 


pired limited  ticket,  by  a  conductor,  show- 
ing that  it  had  been  used  to  an  intermediate 
station,  before  the  expiration  of  the  time 
specified,  or  an  allowed  use  of  it  for  a  por- 
tion of  the  distance  thereafter,  with  an 
indorsement  showing  it,  is  not  such  a 
waiver  of  the  condition  as  allows  a  further 
use  of  the  ticket.  Hill  v.  Syracuse,  B.  &* 
N.  Y.  R.  Co.,  63  A^.  Y.  loi ;  affirming  (f)  2 
Hun  114,  mem.,  4  T.  S"  C.  685,  mem. 

A  rule  established  by  a  carrier  of  passen- 
gers that  tickets  over  its  road  should  be 
dated  on  the  day  of  their  sale,  and  should 
only  entitle  each  holder  to  a  passage  on 
that  day,  provided  that  joint  tickets  should 
be  good  for  such  further  time  as  might  be 
necessary  to  enable  the  holders,  by  the 
regular  trains  of  the  road,  to  reach  the 
stations  to  which  such  tickets  were  sold,  is 
reasonable.  Johnson  v.  Concord  R.  Corp., 
46  A'^  H.  213. 

A  common  carrier  of  passengers  may,  by 
agreement,  evidenced  by  a  ticket  to  that 
effect,  provide  that  a  passage  shall  be  made 
within  a  time  specified  in  the  ticket,  and  in 
one  continuous  trip.  Barkers.  Cojlin,  31 
Barb.  {N.  Y.)  556. 

80.  Limitation  not  waived  by 
c  h  e  c  Ic  i  u  g  baggage.  —  A  passenger 
bought  a  ticket  good  for  five  days,  with 
stop-over  privileges.  Held,  that  the  pro- 
vision limiting  it  to  five  days  was  valid  and 
binding,  and  the  fact  that  a  baggageman 
checked  the  baggage  and  punched  the 
ticket  after  the  limitation  of  the  time  was 
not  a  waiver  of  the  limitation.  Wentz  v.  Erie 
R.  Co.,  3  Hun  (N.  Y.)  241,  ^T.&'C.  556. 

87. or  declarations  of  agent.— 

Where  a  ticket  is  issued,  marked  "good  for 
this  day  only,"  the  passenger  is  not  entitled 
to  use  it  on  any  subsequent  day,  notwith- 
standing the  agent  who  sold  it  said  after- 
wards that  it  would  be  good  at  any  time, 
unless  such  agent  had  authority  from  the 
company  to  make  an  oral  contract  varying 
the  one  evidenced  by  the  ticket.  Boice  v. 
Hudson  River  R.  Co.,  61  Barb.  (N.  Y.)  611. 

And  such  authoiity  in  the  agent  will  not 
be  presumed.  Boice  v.  Hudson  River  R. 
Co.,  61  Barb.  (AT.  Y.)  611. 

Even  if  the  conversation  with  the  agent 
was  formal  enough  to  make  a  contract  in 


Ah.  ft 


•Tickets  good  for  limited  time,  see  notes,  9 
Am.  &  Eno.  R.  Cas.  358  ;  31  Id.  283;  18  /</.  31a  ; 
34  Id.  349. 

Limiution  of  use  of  ticket  to  continuous  pas- 


sage and  to  certain  time,  see  note, 
Eng.  R.  Cas.  337- 

Rights  of  passengers  traveling  on  a  ticket  lim- 
ited as  to  time,  see  34  Am.  ft  Eno.  R.  Cas. 
349,  aMr. 


1070 


TICKETS  AND   FARES,  88-90. 


I '••A 


•  >■••• 


H 


m 


itielf,  it  would  not  be  binding  where  there 
WM  no  consideration  for  it,  being  made 
after  the  ticket  was  sold.  Bctce  v.  Hudson 
River  R.  Co.,  61  Barb.  (N.  Y.)  61 1. 

88.  Not  good  after  expiration.— 
Where  a  company  sells  a  ticket  which  en- 
titles the  purchaser  to  ride  upon  its  cars  a 
certain  number  of  times  within  a  given 
period,  for  a  price  below  the  usual  rate  of 
fare,  which  ticket  specifies  upon  its  face 
that  it  is  only  good  during  such  period, 
the  purchaser  having  failed  to  ride  the 
specified  number  of  times  within  the  period 
named  is  not  entitled  to  ride  upon  such 
ticket  after  the  period  expires.  Powell  v. 
Pittsburg,  C.  **  St.  L.  R.  Co.,  25  Ohio  St. 
70,  13  Am.  Ry.  Rep.  477. 

The  plaintiff  held  a  ticket  over  two  roads, 
to  expire  on  the  tenth  day  of  a  month. 
He  started  on  the  return  trip  in  time  to 
complete  the  journey  before  the  ticket  ex- 
pired, but  without  his  fault  the  train  on  the 
first  road  did  not  arrive  at  the  end  of  its 
line  in  time  to  make  connection  with  an  out- 
going train  on  the  other  road.  Plaintifl 
waited  over  night  and  tendered  his  ticket 
on  the  second  road  on  the  eleventh  of  the 
month.  Held,  that  the  conductor  had  a 
right  to  remove  him  and  the  company  was 
not  liable.  If  the  company  was  liable  for 
breach  of  contract  because  the  first  train 
was  so  delayed  that  plaintifl  could  not  enter 
the  train  on  the  second  road  in  time,  that 
liability  did  not  give  him  the  right  to  ride 
on  the  train.  Pennsylvania  Co.  v.  Hine,  41 
Ohio  St.  276. 

The  purchaser  of  an  excursion  ticket 
which  contains  a  stipulation  that  it  shall  be 
"  good  for  one  passage  on  the  day  sold  only  " 
cannot  lawfully  claim  a  passage  under  it  at 
any  time  except  on  the  day  designated 
therein.    State  v.  Campbell,  32  N.J.  L.  309. 

Where  a  passenger  holds  a  ticket  good 
over  several  roads,  marked  "  good  for  one 
continuous  passage  to  the  point  named  in  the 
coupon  attached,"  the  contract  is  not  with 
any  one  company,  or  jointly  by  all  the  com- 
panies named,  but  is  a  separate  contract  by 
each  company  for  a  continuous  passage  over 
its  road;  and  when  it  is  presented  to  the 
last  road  on  the  date  named  when  it  shall 
expire  and  it  it  accepted,  it  is  not  necessary 
that  the  passage  be  completed  on  that  day, 
and  the  passenger  has  a  right  to  go  through 
on  the  ticket.  Auerhach  v.  New  York  C. 
6*  H.  R.  R.  Co.,  89  N.  K.  281 ;  reversit^  60 
How.  Pr.  382. 


Where  a  ticket  limits  the  time  within 
which  it  must  be  used,  it  will  not  entitle  the 
holder  to  a  passage  after  the  expiration  of 
that  time.  Texas  &*  P.  R.  Co.  v.  McDonald, 
2  Tex.  App.  (Civ.  Cas.)  144. 

89.  Rule  where  trip  is  not  coutin- 
UOU8.*  —  Railroad  companies  are  author* 
ized  to  make  a  contract,  as  evidenced  by  a 
ticket  sold,  which  provides  that  it  is  to  be 
used  within  three  days,  and  is  good  for  a 
continuous  trip  only;  and  the  passenger 
must  use  the  ticket  according  to  agreement. 
Barker  v.  Coflin,  31  Barb.  (N.  Y.)  556.— 
Reviewing  Cheney  v.  Boston  &  M.  R.  Co., 
II  Mete.  (Mass.)  121. 

Where  a  passenger  buys  a  ticket  marked 
"good  for  this  day  and  train  only."  he  has 
a  right  to  select  any  train  on  that  day  that 
goes  to  his  place  of  destination,  but  he  has 
no  right  to  ride  part  of  the  way  on  one 
train,  and  afterwards  to  resume  the  trip  on 
another  train,  and  if  he  attempts  to  do  so 
tie  may  lawfully  be  ejected.  Gale  v.  Dela- 
ware, L.  &*  W.  R.  Co.  7  Hun  (N.  Y.)  670. 

A  holder  of  a  through  ticket  limited  on 
the  route  at  expiration  of  the  limit  of  his 
ticket  should  inform  himself  whether  or  not 
he  can  make  the  continuous  passage  con- 
templated by  his  ticket  on  any  particular 
train.  Gulf,  C.  <S-  S.  F.  R.  Co.  v.  Henry,  52 
Am.  &*  Eng.  R.  Cas.  230,  84  Tex.  678,  19  S. 
W.  Rep.  870. 

That  the  holder  of  a  through  ticket  for 
continuous  passage  entered  upon  a  train 
which  only  covered  a  part  of  the  journey, 
and  was  permitted  by  the  conductor  to  re- 
main, upon  the  ticket,  does  not  entitle  him 
to  have  passage  for  the  remaining  distance 
upon  the  through  train,  the  limit  of  the 
ticket  having  expired.  Gulf,  C,  &»  S.  F.  R. 
Co.  V.  Henry,  52  Am.  &»  Eng.  R.  Cas.  230, 
84  Tex.  678,  195.  W.  Rep.  870, 

90.  When  expire,  grenerally.  — A 
ticket  entitling  the  purchaser  to  a  continued 
passage  between  two  given  points,  if  used 
within  a  certain  time,  is  good  for  such  con- 
tinued passage  if  the  same  be  commenced 
within  the  time  limited.  Lundy  v.  Central 
Pac.  R.  Co.,  18  Am.  5-  Eng.  R.  Cas.  309,  66 
Cal.  191,  4  Pac.  Rep.  1193. 

A  ticket  which  is  dated,  and  bears  upon 
its  face  a  printed  statement,  "Good  only 
two  days  after  date,"  ceases  to  be  valid  after 


*How  far  ticket  may  be  used  for  pMsage 
after  expiration  of  time  limit,  see  note,  16  L.  R. 
A.  471. 


TICKETS    AND    FARKS,  «1  »5. 


1071 


he  time  within 
11  not  entitle  the 
le  expiration  of 
ro.  V.  McDonald, 

is  uot  coutin- 

lies  are  author* 
evidenced  by  a 
I  that  it  is  to  be 
d  is  good  fcr  a 
1  the  passenger 
ng  to  agreement. 
,  {N.  Y.)  556.— 
ton  &  M.  R.  Co., 

a  ticket  marked 
n  only,"  he  has 
on  that  day  that 
ition,  but  he  has 
the  way  on  one 
sume  the  trip  on 
Ltempts  to  do  so 
I.  Gale  V.  Dela- 
Hun(N.  r.)670. 
icket  limited  on 
the  limit  of  his 
ilf  whether  or  not 
}us  passage  con- 
n  any  particular 
,  Co.  V.  Henry,  52 

14  Tex.  678,  19  5. 

rough  ticket  for 
:d  upon  a  train 

of  the  journey, 
conductor  to  re- 
:s  not  entitle  him 
maining  distance 
the  limit  of  the 
If,  C  <S-  S.  F.  R. 
Etig.  R.  Cas.  230, 

870. 

generally.  —  A 
ier  to  a  continued 
n  points,  if  used 
)od  for  such  con- 
e  be  commenced 
Lundy  v.  Central 
f .  R.  Cas.  309,  66 

I.  and  bears  upon 
lent,  "  Good  only 

15  to  be  valid  after 


used  for  passage 
,  see  note,  16  L.  R. 


the  expiration  of  the  two  days.    Boston  6« 
L.  R.  Co.  V.  Proctor,  i  Alien  {Mass.)  267. 

01.  Presented  before  midnight  of 
last  day.— A  ticket  was  sold  on  the  sixth 
day  of  December,  marked  to  be  used  "  within 
two  days  from  the  date  sold."  Held,  that 
it  was  good  until  midnight  of  December  8, 
though  the  evidence  showed  that  it  was 
sold  about  noon  on  the  6th.  The  date  of 
its  issue  is  excluded.  Georgia  Southern  R. 
Co.  V.  Bigelow,  68  Ga,  219. 

A  contract  between  a  carrier  and  a  pas- 
senger will,  when  open  to  construction,  be 
so  construed  as  to  save  a  right  and  prevent 
a  forfeiture,  and  the  holder  of  a  railway 
ticket,  by  the  terms  of  which  he  agrees  to 
"  use  the  same  on  or  before  the  expiration  " 
of  a  day  named,  complies  with  the  terms  of 
that  limitation  where  he  enters  upon  the 
transit  before  midnight  of  the  day  named. 
Evans  v.  St.  Louis,  I.  M.  &»  S.  R.  Co.,  11 
Mo.  App.  463. 

Where  it  is  expressed  in  terms  upon  a 
ticket  that  it  is  not  good  unless  "  used  "  on 
or  before  a  certain  day,  a  presentation  of  the 
ticket  and  the  acceptance  of  it  by  the  con- 
ductor before  midnight  of  that  day,  although 
the  journey  is  not  completed  until  the  next 
morning,  will  be  held  to  be  a  compliance 
with  the  condition ;  and  where  the  terms  of 
a  ticket  bind  the  passenger  to  a  continuous 
journey,  such  requirement  is  fulfilled  if  the 
passenger  commences  his  journey  at  an  in- 
termediate point.  Auerbach  v.  New  York  C. 
&*  H.  R.  R.  Co.,  6  Am.  &*  Eng.  R.  Cas.  334, 
89  A'',  y.  281 ;  reversing  60  How.  Pr.  382. — 
Following  Brooke  v.  Grand  Trunk  R. 
Co.,  IS  Mich.  332.  —  Distinguished  in 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Looney,  52  Am. 
&  Eng.  R.  Cas.  197,  85  Tex.  158.  Re- 
viewed IN  Ward  V.  New  York  C.  &  H.  R. 
R.  Co.,  56  Hun  268,  30  N.  Y.  S.  R.  604,  9 
N.  Y.  Supp.  377. 

02.  Over  connecting  lines.— A  joint 
undertaking,  executed  by  a  company  for  itself 
and  connecting  lines,  to  transport  a  ticket 
holder  to  a  designated  place  within  a  limited 
time  would  also  apply  to  the  time  within 
which  the  journey  should  be  commenced. 
The  ticket  holder  having  commenced  the 
journey  within  the  limit  of  the  ticket,  he 
would  be  entitled  to  be  carried  to  his  desti- 
nation, notwithstanding  the  limit  expired 
while  on  the  continuous  journey  indicated 
by  the  ticket.  Gulf,  C.  &»  S.  F.  R.  Co.  v. 
Looney,  52  Am.  6^  Eng.  R.  Cas,  197,  85  Tex. 

^158,  19  5.  fV.  Rep.  1039. 


Where  a  limit  of  four  days  is  shown  to  be 
a  reasonable  time  in  which  to  complete  a 
journey,  a  ticket  holder  will  be  bound  by  it, 
as  the  journey  could  have  been  made  in 
ordinary  railroad  time  within  the  limit.  The 
ticket,  so  far  as  obligatory  upon  defendant, 
required  it  to  carry  the  passenger  if  the 
ticket  was  presented  within  the  time  speci* 
lied.  Defendant  was  not  liable  for  the  de- 
lay  of  an  intermediate  line  whereby  the 
ticket  holder  was  prevented  from  reaching 
the  line  of  defendant  in  time  to  avail  himself 
of  his  ticket.  Gulf,  C.  &•  S.  f.  R.  Co.  v. 
Looney,  52  Am.  &•  Eng.  R.  Cas.  197,  85  Tex, 
158,  195.  W.Rep.  1039. 

93.  expiring  on  Sunday.— If  a 

contract  matures  on  Sunday,  the  perform- 
ance of  it  is  to  be  exacted  on  the  next  day. 
So  where  a  passenger  holds  a  limited  ticket 
which  expires  on  Sunday,  and  he  is  pre- 
vented from  riding  on  that  day  because  the 
company  runs  no  trains,  he  is  entitled  to  a 
passage  on  the  next  day.  Little  Rock  &* 
Ft.  S.  R.  Co.  V.  Dean,  21  Am.  &*  Eng.  R. 
Cas.  279,  43  Ark.  529,  51  Am.  Rep.  584. 

The  above  rule  is  more  applicable  to  a 
contract  for  carriage  than  to  ordinary  con> 
tracts,  for  the  reason  that  the  time  for  per- 
foriaance  is  imposed  by  the  company  by  way 
of  limitation,  and  the  contract  should  be  so 
construed  as  to  save  the  right  and  prevent  a 
forfeiture  if  it  can  be  done ;  and  a  regulation 
of  the  company  requiring  the  conductor 
to  refuse  such  tickets  after  the  last  day  of 
their  limit  cannot  affect  the  passenger's  legal 
rights.  Little  Rock  &>  Ft.S.  R.  Co.  v.  Dean, 
21  Am.  &*  Eng.  R.  Cas.  279,  43  Ark.  529,  51 
Am.  Rep.  584. 

04.  "  Good  for  this  trip  only."— A 
ticket  marked  "good  for  this  trip  only"  is 
not  limited  to  any  particular  day  or  train. 
The  condition  relates  to  the  time  of  using 
the  ticket  and  not  to  the  journey ;  and  the 
passenger  may  use  it  on  the  date  when  it  is 
issued,  or  on  any  subsequent  date.  Pier  v. 
FincA,  24  Bard.  {N.  Y.)  514. 

05.  Statute  making  ticket  good 
for  six  years.— The  provision  of  Me.  Act 
of  1871,  ch.  223,  which  declares  that  no  rail- 
road company  shall  limit  the  right  of  a  ticket 
holder  to  any  given  train,  but  that  such 
ticket  holder  shall  have  the  right  to  travel 
on  any  train,  whether  regular  or  express 
train,  and  to  stop  at  any  of  the  stations  at 
which  such  train  stops,  and  that  such  ticket 
shall  be  good  for  a  passage  as  above  for  six 
years  from  the  day  it  is  first  issued,  applies 


1072 


TICKETS   AND   FARES,  06-98. 


1=: 

iiii; 
m 


to  a  foreign  company  doing  business  in  the 
state,  and  it  must  conform  to  the  statute. 
Dryden  v.  Grand  Trunk  R.  Co.,  6o  Me.  $12. 
—  Distinguished  in  Lafarier  v.  Grand 
Trunk  R.  Co.,  84  Me.  286. 

A  ticlcet.  bought  in  another  state  for  a 
passage  thence  to  a  point  in  Massachusetts, 
was  by  a  statute  of  the  former  state  good 
for  six  years,  and  allowed  passengers  to  stop 
over  at  will.  The  passenger  stopped  at  an 
intermediate  point  in  Massachusetts  ai.d 
received  a  stop-over  check  stating  on  its 
face  that  it  was  good  only  for  ten  days. 
After  that  limit  had  expired,  and  within  the 
six  years,  he  renewed  his  journey  and  ten- 
dered such  check  in  payment  of  his  fare, 
but  it  was  refused.  Htld,  that  the  statute 
only  referred  to  transportation  in  the  other 
state,  and  that  the  company  could  maintain 
an  action  in  Massachusetts  against  the  pas- 
senger to  recover  his  fare.  Boston  &*  M. 
X.Co.w.  Trafton,ili  Mass.  229,  23  N.  E. 
R*p.  839. 

6.  MiUagt  Ticktts, 

00.  Statute  compelling  issuance — 

Massachusetts  Act  of  1892,  ch.  389,  provides 
that  railroad  companies  shall  sell  to  all 
persons  applying  therefor  thousand-mile 
tickets,  at  the  rate  of  twenty  dollars  each, 
and  redeem  all  such  tickets,  or  any  part 
thereof,  upon  presentation  by  any  other  rail- 
road corporation,  and  accept  from  all  per- 
sons for  passage  over  their  own  lines  all 
such  tickets  issued  by  any  other  railroad 
corporations  operating  lines  within  the  state. 
Htld,  that  the  act  is  void  as  applying  and 
appropriating  individual  property  to  the 
public  use  without  the  owner's  consent  and 
without  legal  provision  for  a  reasonable 
compensation  therefor.  (Knowlton  and 
Holmes,  JJ.,  dissenting.)  Attorney-Gtneral 
V.  Old  Colony  R.  Co.,  56  Am.  &* Eng.  R.  Cas. 
59,  160  Mass.  62,  35  N.  E.  Rep.  252. 

07.  Conditions  and  stipulations, 
generally. — A  company  owning  one  road 
and  leasing  another,  the  two  forming  a  con- 
tinuous line  between  Indianapolis  and  St. 
Louis,  sold  a  thousand  mile  ticket  author- 
izing the  purchaser  to  travel  300  miles  upon 
one  of  said  roads  and  700  miles  upon  the 
other,  having  black  figures  representing 
the  one  road  and  red  figures  the  other,  with 
directions  to  conductors  to  punch  out  the 
black  figures  representing  the  number  of 
miles  traveled  on  the  western  division  of 


the  road,  and  the  red  figures  for  the  miles 
traveled  on  the  eastern  end.  On  the  back 
of  the  ticket  were  printed  conditions  on 
which  the  ticket  was  issued,  signed  by  the 
purchaser,  among  which  was  a  stipulation 
that  the  miles  traveled  each  trip  should  be 
indicated  by  the  conductor  punching  out 
corresponding  figures  on  the  opposite  side. 
After  all  the  red  figures  had  been  punched 
out,  the  purchaser  offered  the  ticket  for  pas- 
sage on  a  train  on  the  eastern  division,  but 
the  conductor  refused  to  accept  it,  though 
there  were  black  figures  not  punched 
out  amounting  to  the  number  of  miles  for 
which  it  was  offered,  and  the  holder  of  the 
ticket,  refusing  to  pay  his  fare,  or  to  leave 
the  car  unless  forcibly  ejected,  was  put  oft 
by  the  conductor  and  his  assistants.  Held: 
(1)  that  the  terms  expressed  on  the  ticket 
constituted  a  contract  between  the  seller 
and  the  purchaser  of  the  ticket  -  (2)  that  the 
stipulation  for  punching  black  or  red 
figures,  according  to  the  division  traveled 
upon,  was  a  part  of  the  contract,  and  opera- 
tive against  the  passenger — not  a  mere  di- 
rection to  the  conductor ;  (3)  that  when  the 
purchaser  had  traveled  on  the  eastern  part 
of  the  line  a  sufficient  number  of  miles  to 
exhaust  the  red  figures,  the  ticket  gave  him 
no  claim  to  be  carried  any  more  on  that 
part  of  the  road ;  and  that  his  refusal  to  pay 
fare  or  to  leave  the  car  on  request  justified 
his  expulsion  therefrom..  Terre  Haute  6* 
I.  R.  Co.  V.  Fitegerald,  47  Ind.  79,  8  Am. 
Ry.  Rep.  282. 

08.  as  to  stamping  and  sign- 
ing. —  A  company  sold  and  delivered  a 
thousand-mile  ticket  to  a  purchaser,  who 
paid  in  money  the  usual  rate  to  the  class  of 
travelers  to  which  he  belonged,  and  who 
secured  it  in  ignorance  of  the  following  di- 
rections printed  thereon  ;  "  Conductors  will 
not  honor  this  tirket  unless  properly 
stamped  and  signed  by  the  purchaser,  and 
will  strictly  enforce  the  above  conditions." 
Instructions  of  the  company  to  its  ticket 
agents,  and  the  uniform  custom  regulating 
the  sale  of  such  tickets,  required  that 
purchasers  sign  certain  conditions  printed 
thereon  before  delivery  to  them.  The  ticket 
in  question  was  delivered  to  the  purchaser, 
and  several  times  honored  by  the  company's 
conductors,  without  requiring  him  to  sign 
the  conditions.  Held,  that  the  company 
thereby  waived  such  requirement,  and  its 
conductor  was  not  justified  in  ejecting  the 
purchaser  from  a  car  by  reason  of  hit  re- 


M 


TICKETS   AND    FARES,  »U-103. 


1073 


!s  for  the  miles 
On  the  back 
conditions  on 
\,  signed  by  the 
18  a  stipulation 
t  trip  should  be 
punching  out 
e  opposite  side. 
1  been  punched 
[e  ticket  for  pas- 
!rn  division,  but 
ccept  it,  though 
not  punched 
>er  of  miles  for 
le  holder  of  the 
are,  or  to  leave 
ed,  was  put  ofl 
iistants.  Ne/d: 
d  on  the  ticket 
veen  the  teller 
:et  ■  (2)  that  the 
black  or  red 
ivision  traveled 
ract,  and  opera- 
-not  a  mere  di- 
I)  that  when  the 
:he  eastern  part 
iber  of  miles  to 
ticket  gave  him 
Y  more  on  that 
Is  refusal  to  pay 
request  justified 
rtrre  Hautt  &* 
Ind.  79,  8  Am. 

ing  and  sign- 

ind  delivered  a 
purchaser,  who 
e  to  the  class  of 
mged,  and  who 
tie  following  di- 
Conductors  will 
inless  properly 
I  purchaser,  and 
>ve  conditions." 
iy  to  its  ticket 
stom  regulating 
required  that 
iditions  printed 
lem.  The  ticket 
>  the  purchaser, 
y  the  company's 
ing  him  to  sign 
t  the  company 
rement,  and  its 
in  ejecting  the 
iason  of  his  re* 


(usal  to  sign  the  ticket,  cr  to  pay  the  usual 
fare  in  money  for  his  proposed  passage. 
Kent  V.  Baltimore  <S-  0.  R.  Co.,  31  Am.  &* 
Eng.  R.  Cas.  125.  45  Ohio  St.  284,  10  West. 
Rep.  457.  12N.E.  Rep.  798. 

99.    as    to   Identification    of 

purcliaser.  —  Conditions  in  a  mileage 
ticket  tliat  "  the  purchaser  agrees  to  sign 
his  name  in  the  presence  of  the  conductor 
each  time  before  detachment  is  made,"  and 
tiiat  the  ticket  shall  be  forfeited  *'  unless 
the  proper  signature  is  given  "  do  not  au- 
thorize the  conductor  to  decide  for  the  pas- 
senger, as  well  as  for  the  company,  whether 
the  passenger  is  the  one  who  purchased  the 
ticket.  Pittsburgh,  €..€.&•  St.  L. R.  Co.  v. 
Russ,  57  Fed.  Rep.  822. 

A  thousand-mile  ticket  containing  the 
purchaser's  signature  provided  that  when 
presenting  the  ticket  for  passage  the  pur- 
chaser, if  requested,  should  sign  his  name 
and  "  otherwise  identify  "  himself.  Held, 
that  where  a  conductor  to  whom  the  pur- 
chaser presented  the  ticket  arbitrarily  re- 
fused to  permit  him  to  sign  his  name,  ac- 
companying the  refusal  with  gross  insult, 
the  conductor  had  no  right  to  require  any 
further  identification.  Norfolk  &*  W.  R. 
Co,  V.  Anderson,  58  Am,  &*  Eng.  R.  Cas.  53, 
90  Va.  I,  17  S.E.  Rep.  757.— DISTINGUISH- 
ING Norfolk  &  W.  R.  Co.  v.  Wysor,  26  Am. 
&  Eng.  R.  Cas.  234,  82  Va.  250.  Quoting 
Richmond,  T.  &  P.  R.  Co.  v.  Ashby,  79 
Va.  130.  " 

100.  as  to  use  on  freiglit  train. 

— A  railroad  mileage  ticket,  upon  which 
is  expressed  the  condition,  expressly  as- 
tented  to  by  the  purchaser,  that  it  sliall 
not  be  good  for  passage  on  freight  trains, 
does  not  entitle  such  purchaser  to  ride  on  a 
freight  train,  although  the  carrier,  subse- 
quent to  the  purchase  of  the  ticket,  has 
advertised  that  passengers  with  tickets  may 
ride  on  such  trains.  Dunlap  v.  Northern 
Pae.  R.  Co. ,  35  Minn.  203.  28  N.  W.  Rep.  240. 

101. as  to  time  of  expiration. 

— A  mileage  ticket  stipulated  that  it  should 
be  good  only  for  a  certain  period,  and  that, 
if  presented  after  the  expiration  of  that 
time,  the  conductor  should  take  up  the 
ticket  and  collect  fare.  Held,  that  its  use  a 
number  of  times  in  violation  of  the  condi- 
tion would  not  estop  the  company  from 
taking  it  up  and  ejecting  the  passenger  from 
its  train  upon  refusal  to  pay  fare.  Sherman 
V.  Chicago  &*  N.  IV.  R.  Co.,  40  Iowa  45, 
8  Am.  Ry.  Rep.  410. 
7  D.  R.  D.— 68 


Plaintiff  held  a  thousand-mile  ticket 
which  was  marked  "  good  for  six  months 
only."  After  the  lapse  of  that  time  he 
entered  a  baggage  car  and  tendered  his 
ticket,  which  was  refused  and  he  was  put 
off  after  refusing  to  pay  fare.  Held,  that 
the  ticket  was  void  ;  that  plaintiff  was  not  a 
passenger  but  a  trespasser  on  the  car,  and 
therefore  tlie  statute  which  provides  that 
passengers  can  only  be  put  off  near  a  sta- 
tion or  dwelling  house  had  no  application. 
Lillis  v.'St.  Louis,  K.  C.  6-  N.  R.  Co..  64 
Mo.  464.  —  Reviewing  Union  Pac.  R.  Co. 
V.  Nichols,  8  Kan.  505 ;  Robertson  v.  New 
York  &  E.  R.  Co.,  22  Barb.  (N.  Y.)  92.— 
Distinguished  in  Brown  v.  Memphis  &  C. 
R.  Co.,  I  Am.  &  Eng.  R.  Cas.  247,  7  Fed. 
Rep.  51 ;  Brown  v.  Hannibal  &  St.  J.  R. 
Co.,  66  Mo.  588. 

7.   Tickets  over  Connecting  Lints.* 

102.  Interpretation  and  effect  of 
throngli  ticlcets,  generally.f  —  A  con- 
tract for  one  continuous  emigrant  passage 
from  Omaha  to  San  Francisco  is  not  a  con- 
tract to  carry  one  person  from  Omaha  to  an 
intermedia^';  station,  and  a  second  to  an- 
other station,  and  so  on,  but  only  a  contract 
to  carry  the  same  person  through  the  entire 
route.  Cody  v.  Central  Pac.  R.  Co.,  4  Sawy. 
(C/.S.)  114. 

A  through  ticket,  that  is,  a  ticket  over 
more  than  one  road,  with  a  corresponding 
baggage  check,  implies  a  special  undertak- 
ing to  carry  the  passenger  and  his  baggage 
to  the  place  of  destination,  whether  over 
the  initial  road  or  another.  Illinois  C.  R. 
Co.  v.  Copeland,  24  ///.  332.  —  NoT  FOL- 
LOWED IN  Crawford  v.  Southern  R.  Ajsoc, 
51  Miss.  222.  Reviewed  in  Gray  v.  Jack- 
son, 51  N.  H.  9. 

103.  Coupons  deemed  distinct 
ticlcets  foreacli  line.t— Through  tickets 
in  the  form  of  coupons,  sold  to  a  passenger 
by  one  company,  entitling  him  to  pass  over 


*  See  also  Carriage  of  Passengers,  499- 
619. 

fSale  by  company  of  Ihrough  ticket  beyond 
its  own  line, see  note,  iS  Aac.  &  Eng.  R.  Cas!  304. 

Through  contract  for  passenger  transportation 
over  connecting  line,  see  note,  18  Am.  &  Eno. 
R.  Cas.  345. 

Duty  and  liability  of  the  several  companies  to 
persons  traveling  on  through  coupon  tickets,  see 
26  Am.  &  Eng.  R.  Cas.  263,  abslr. 

X  Through  tickets  regarded  as  separate  con- 
tract over  each  road,  see  note,  a  L.  R.  A.  186. 


1074 


TICKETS  AND   FARES,  104,  105. 


1*^*3 


if  u 


successive  connecting  lines,  in  tlie  absence 
of  an  express  agreement  create  no  contract 
with  the  company  selling  the  same  to  carry 
him  beyond  tiie  line  of  its  own  road,  but, 
so  far  as  the  passenger  is  concerned,  they 
are  distinct  tickets  for  each  road,  sold  by 
the  first  company  as  agent  for  the  others. 
Pennsylvama  R,  Co.  v.  Contull,  i8  Am.  &* 
Eng.  R.  Cas.  339, 1 1 2  III.  295,  54  Am.  Rep.  238. 

Through  tickets  over  several  distinct 
lines  of  transportation,  issued  in  .the  form 
of  coupons  and  r-  Tnized  by  the  proprie- 
tors of  ea>  h  lin  .  j  be  regarded  as  dis- 
tinct tickets  f  t)  ae,  sold  by  one  as 
agent  for  the  otliers.  The  rights  and  lia- 
bilities of  the  parties  are  the  same  as  if  the 
purchase  had  b^eii  made  at  the  ticket  offices 
of  the  respective  line  .  Bui. .  i.iroads  may 
so  issue  their  tickets  and  so  coiJuCi  them- 
selves as  to  have  the  purchasers  understand 
that  they  undertake  for  the  whole  route,  in 
which  case  they  will  be  held  responsible 
to  that  extent.  Knight  v.  Portland,  S. 
&*  P.  R.  Co.,  56  Me.  234.— Reviewed  in 
Gray  v.  Jackson,  51  N.  H.  9. 

A  coupon  ticket  not  limited  to  a  continu- 
ous passage,  showing  on  its  face  that  it  was 
issued  by  a  company  as  principal  as  to  its 
own  lines  but  as  agent  as  to  the  other  lines 
to  be  passed  over,  evinces  a  contract  entire 
as  to  a  passage  over  the  line  of  each  road, 
which,  when  begun,  must  be  completed,  but 
severable  as  between  the  different  roads. 
If  such  ticket  contains  no  provision  against 
its  transfer,  but  merely  purports  to  be  sold 
at  reduced  rates,  it  is  assignable  at  the 
end  of  any  division.  Nichols  v.  Southern 
Pac.  Co.,  52  Am.  &•  Eng.  R.  Cas.  205,  23 
Oreg.  123,  31  Pac.  Rep.  296,  \Z  L.  R.  A.  55. 
— Quoting  Drummond  v.  Southern  Pac. 
Co.,  7  Utah  118,  25  Pac.  Rep.  733;  Cody 
V.  Central  Pac.  R.  Co.,  4  Sawy.  (U.  S.) 
115.  Reconciling  Walker  v.  Wabash,  St. 
L.  &  P.  R.  Co.,  IS  Mo.  App.  333.  Review- 
ing Little  Rock  &  Ft.  S.  R.  Co.  v.  Dean,  21 
Am.  &  Eng.  R.  Cas.  279,  43  Ark.  530. 

A  passenger  purchased  a  coupon  ticket 
over  several  connecting  lines,  and  was  in- 
formed by  the  agent  that  the  ticket  was 
good  for  six  days,  and  would  permit  him  to 
stop  off.  He  accordingly  stopped  off  at  M., 
and  afterwards,  before  the  expiration  of  the 
ticket's  limitation,  proceeded  to  S.,  the  ter- 
minus of  one  of  the  roads  over  which  a 
coupon  attached  to  his  ticket  entitled  him 
to  ride.  After  leaving  S.,  and  while  on  the 
road  to  H.,  over  a  different  road  but  oper- 


ated by  the  first  road,  he  tendered  his  ticket 
to  the  conductor,  who  was  the  same  as  on 
the  train  from  M.  to  S.  The  conductor 
refused  the  ticket,  and  ejected  the  passenger 
from  the  train.  He  afterwards  boarded 
another  train,  and  his  ticket  was  accepted. 
He  thereupon  brought  suit  for  trespass 
against  the  road  which  sold  him  the  ticket. 
Held:  (1)  that  through  tickets  in  the  form 
of  coupons,  entitling  the  holder  to  pass 
over  successive  roads,  are  regarded  as  dis- 
tinct tickets  for  each  road,  sold  by  the 
agent  of  the  first  company  as  agent  for  the 
others;  (2)  that  when  such  a  ticket  has 
been  purchased  in  good  faith  from  an  agent 
acting  within  the  general  scope  of  his  em- 
ployment, it  is  the  duty  of  the  several  com- 
panies named  therein  to  honor  it  until  it  is 
used  or  expires  by  its  own  limitation  ;  and 
such  company  is  bound  by  the  representa- 
tions of  the  agent  as  to  stop-over  privileges ; 

(3)  that  the  evidence  was  sufficient  to  war- 
rant the  jury  in  finding  that  the  company 
selling  the  ticket  was  the  agent  for  the 
other  company,  and  that  the  ticket  was 
good  and  the  passenger  wrongfully  ejected ; 

(4)  that  testimony  that  the  train  from  which 
the  passenger  was  ejected  was  the  same 
train,  in  charge  of  the  same  conductor, 
which  carried  the  passenger  on  defendant's 
road,  and  that  defendant  company  claimed 
the  proportion  of  fare  on  plaintiff's  ticket, 
as  afterwards  accepted,  over  the  road  where 
he  was  ejected,  is  evidence  sufficient  to  be 
submitted  to  the  jury  1 11  ^t  defendant  com- 
pany was  operating  the  other  road,  and  that 
the  alleged  trespass  was  committed  by  an 
employe  of  defendant  company.  Young  v. 
Pennsylvania  R.  Co.,  28  Am.  <S-  Etig.  R,  Cas. 
114,  115  Pa.  St.  112,  7  Atl.  Rep.  741. 

104.  Power  and  authority  to  sell. 
— A  company  which,  under  an  agreement 
with  a  connecting  line,  sells  a  ticket  over 
its  own  line  to  which  is  attached  a  coupon 
entitling  the  holder  to  passage  one  way  over 
the  connecting  line,  cannot  sell  a  return 
coupon  over  the  connecting  line.  Anderson 
V.  New  York  <S-  N.  H.  R.  Co.,  i  Fed.  Cas. 
845,  6  Am.  Law  Rev.  754. 

105.  Liability  of  issuing  carrier.* 
—  One  carrier  may  sell  to  a  passenger  its 
own  ticket  and  at  the  same  time  the  ticket 
of  connecting  lines,  entitling  the  passenger 


*  Liability  of  company  selling  through  ticket 
for  injury  to  passenger  on  connecting  line,  see 
note.  I  Am.  Sr.  Rrr.  200, 


TICKETS  AND   FARES,  106-100. 


1075 


lered  his  ticket 
;he  same  as  on 
rhe  conductor 
d  the  passenger 
vards    boarded 

was  accepted, 
t  for  trespass 
him  the  ticket, 
ets  in  the  form 
liolder  to  pass 
Egarded  as  dis- 
1,  sold  by  the 
IS  agent  for  the 
h  a  ticket  has 
1  from  an  agent 
:ope  of  his  em- 
be  several  com- 
lor  it  until  it  is 
limitation ;  and 
the  representa- 
over  privileges ; 
ifficient  to  war- 
ax  the  company 

agent  for  the 
the  ticket  was 
ngfully  ejected ; 
rain  from  which 

was  the  same 
ime   conductor, 

on  defendant's 
>mpaiiy  claimed 
laintifi's  ticket, 

the  road  where 
sufficient  to  be 
defendant  com* 
r  road,  and  that 
>mniitted  by  an 
any.     Vouttg'  v. 

«S-  Eftg;.  R.  Cas. 
^tp.  741. 
lorityto  sell. 
an  agreement 

s  a  ticket  over 
iched  a  coupon 
ge  one  way  over 
>t  sell  a  return 

line.  Anderson 
Co.,  I  Fed.  Cas. 

ling  carrier.* 

a  passenger  its 

time  the  ticket 

g  the  passenger 


)g  through  ticket 
nnecting  Iiii«,  sec 


to  through  transportation  over  all  the  lines, 
and  may  receive  the  fare  for  the  whole  dis- 
tance, without  becoming  responsible  for  the 
carriage  of  the  passenger  beyond  its  own  line. 
Louisville  &»  N.  R.  Co.  v.  Weaver,  i6  Am. 
&*  Etig.  R.  Cas.  2 1 8,  9  Lea  ( Tenn.)  38. 

Tickets  for  the  several  lines  are  in  such 
cases  known  as  coupon  tickets,  and  each 
ticket,  apparently  without  reference  to  the 
form,  is  considered  a  separate  contract  of 
the  carrier  over  whose  route  it  entitles 
the  holder  to  be  carried.  Louisville  &*  N. 
R.  Co.  v.  Weaver,  i6  Am.  &*  Eng.  R.  Cas. 
21%,  9  Lea  {Tenn.)  38. 

106.  limiting  liability  to  its 

own  line. — Where  a  ticket  is  sold  by  one 
company  (or  travel  over  its  own  and  con- 
necting  lines,  on  the  tii.ct  of  which  ticket 
the  responsibility  of  the  selling  company  is 
limited  to  its  own  line,  and  an  action  is 
afterwards  brought  against  the  selling  com- 
pany for  a  refusal  to  accept  the  ticket 
while  the  holder  is  traveling  on  the  road  of 
another  company,  and  subject  to  its  regu- 
lations, though  in  a  car  of  the  selling  com- 
pany in  charge  of  a  conductor  in  the  uniform 
of  that  company,  it  is  a  question  for  the 
jury  whether  the  conductor  was,  at  the  time 
of  the  alleged  injury,  in  the  employ  and  act- 
ing under  the  directions  of  defendant  com- 
pany. Pennsylvania  R.  Co.  v.  Spicker,  23 
Am.  &*  Eng.  R.  Cas.  672,  105  Pa.  St.  142. 

Where  it  is  expressly  stipulated  that  the 
selling  carrier  acts  as  the  agent  of  the  con- 
necting carriers  and  will  not  be  responsi- 
ble beyond  its  own  line,  each  coupon  is 
a  separate  contract  for  the  line  for  which 
issued ;  and  the  ticket  does  not  imply  a 
joint  obligation  resting  upon  each  of  the 
companies.  Gulf,  C.  6*  S.  F.  R.  Co.  v. 
Looney,  52  Am.  &*  Eng.  R.  Cas.  197.  8$  Tex. 
158,  195.  W.  Rep.  1039. 

^laintif!  took  a  tourist  ticket  from  a 
company  on  the  faith  of  its  programme  of 
tourist  ticket  arrangements.  On  the  back 
was  printed  :  "  This  ticket  is  subject  to  the 
regulations  and  conditions  stated  in  the 
company's  time  tables  and  bills."  The 
monthly  time-bill  stated  that  the  company 
did  not  "  hold  itself  responsible  for  any 
delay,  detention,  etc.,  arising  off  its  lines, 
or  from  the  acts  or  defaults  of  other  parties, 
nor  for  the  correctness  of  the  times  over 
other  lines  or  companies."  Plaintiff  was 
detained  by  the  lateness  of  another  com- 
pany's train.  Held,  that  he  was  bound  by 
the  monthly  time-table,  and  could  not  re- 


cover the  expenses  incurred  through  such 
detention.  Thompson  v.  Midland  R,  Co., 
34  L.  T.  34,  3  Ry.  &>  C.  T.  Cas.  xxiil. 

107.  refiiudiug  money  upon 

refusal  to  honor. '•■— Where  a  company 
issues  a  through  ticket  culling  for  passage 
beyond  its  own  line  which  a  connecting 
line  refuses  to  accept,  the  company  selling 
the  ticket  must  furnish  a  local  ticket  or 
the  amount  of  money  necessary  to  procure 
one,  and  failing  in  this  a  passenger  has  a 
right  of  action  against  it  for  a  breach  of 
contract  ;  and  where  there  is  no  limit  on 
the  right  to  transfer  the  ticket  it  may  be 
used  by  a  transferee.  Hudson  v.  Kansas 
Pac.  R.  Co.,  3  McCrary  {U.  S.)  249,  9  Fed. 
Rep.  879. 

108.  Liability  of  subsequent  car« 
rier.  —  Where  a  passenger  buys  a  round- 
trip  ticket  for  passage  over  two  roads,  with 
a  special  agreement  attached  that  he  shall 
sign  his  name  before  the  agent  at  the  ter- 
minal point  previous  to  the  commencement 
of  the  return  trip,  such  special  agreement  is 
controlling,  and  if  he  fails  so  to  sign  the 
company  may  eject  him.  Moses  v.  East 
Tenn.,  V.  &»  G.  R.  Co.,  73  Ga.  356. 

The  ticket  being  for  the  purpose  of  pass- 
ing him  over  two  roads,  each  has  the  right 
to  stand  on  the  contract ;  and  if  one  passes 
him,  the  other  is  not  bound  thereby  to 
pass  him  also,  in  the  teeth  of  the  special 
contract.  Moses  v.  East  Tenn,,  V.  &»  G. 
R.  Co.,73Ga.  356. 

It  seems  that  a  company  cannot  be  called 
upon  to  answer  for  damages  for  failure  to 
carry  a  passenger  on  a  ticket  issued  by 
another  company,  in  the  absence  of  any 
allegation  that  the  issuing  company  was  a 
joint  contractor,  or  had  the  right  to  issue 
such  ticket.  Matt/tews  v.  Charleston  &•  S. 
R.  Co.,  38  So.  Car.  429,  17  S.  E.  Rep.  225. 

100.  Duration.  —  Where  a  passenger 
buys  a  ticket  good  over  two  roads  it  is  not 
incumbent  on  him  to  make  a  continuous 
journey.  Having  used  the  ticket  over  the 
first  road,  he  is  at  liberty  to  begin  the  jour- 
ney over  the  second  road  when  he  pleases. 
A  delay  of  two  months  will  not  defeat  his 
right  to  be  carried  on  the  ticket.  Brooke  v. 
Grand  Trunk  R.  Co.,  15  Mich.  332.— Fol- 
lowed IN  Auerbach  v.  New  York  C.  &  H. 
R.  R.  Co.,  6  Am.  &  Eng.  R.  Cas.  334,  89 
N.  Y.  a8i. 


•  Rights  of  passengers  traveling  on  through 
tickets,  see  note,  35  Am.  Rep.  708. 


1076 


TICKETS  AND   FARES,  110-114. 


n  \ 


m.  VASES. 
I.  R^ulation  of  Ratts. 

110.  By  the  carrier.  —  A   railroad 
'may  establish  fares,  and  also  regulate  the 

time,  place,  and  manner  of  receiving  them, 
and  may  direct  to  whom  payment  shall  be 
made.    State  v.  Choviti,  7  Iowa  204. 

A  company  is  under  no  general  obliga- 
lion  to  carry  any  one  tor  less  than  the  usual 
rates,  and  if  it  does  so  as  a  matter  of  special 
accommodation,  any  reasonable  condition 
imposed  upon  the  passengers  should  be  per- 
formed; and  if  such  passengers  neglect  to 
perform  such  conditions  they  cannot  com* 
plain  if  the  regular  fares  are  demanded. 
Gottz  V.  Hannibal  &*  St.  J.  R.  Co.,  $0  Mo. 
47a,  3  Am.  Ry.  Rep.  427. 

111.  By  carrier's  agents.— Rates  of 
fare  need  not  be  established  by  the  board 
of  directors  and  proved  by  a  record  of  their 
action.  Agents,  other  than  the  directors, 
may  be  empowered  to  regulate  such  mat- 
ters. Jeffersonville  R.  Co.  v.  Rogers,  38 
Ind.  1. 

112.  Manner  of  regulating.— The 
distance  and  manner  in  which  a  passenger 
is  to  be  carried  over  a  road  is  a  matter  of 
contract,  entered  into  between  him  and  the 
company,  and  unless  prohibited  by  law,  a 
company  has  the  right  to  charge  higher 
fares  to  way  stations  than  their  proportion 
of  the  distance.  State  v.  Overton,  24  A'".  /. 
L.  435- 

There  is  no  law  which  prevents  a  carrier 
from  prescribing  a  tariff  of  prices  by  which 
it  will  charge  a  passenger  who  has  no  bag- 
gage a  less  sum  than  a  passenger  with  bag- 
gage, or  increase  ttie  charge  according  to 
the  amount  of  the  baggage,  except  that  the 
charge  must  be  just  and  reasonable,  and 
must  be  proportioned  to  the  value  of  the 
services  rendered  and  the  risk  incurred. 
Nevins  v.  Bay  State  Steamboat  Co.,  4  Bosw. 
(N.  Y.)  225. 

When  the  proper  notice  of  such  a  regula- 
tion is  given  to  the  passenger,  or  when  from 
the  uniform  and  notorious  usage  of  busi- 
ness he  is  chargeable  with  such  notice,  it  is 
reasonable  and  just  that  he  be  held  bound 
thereby ;  and  a  carrier  may  require  a  dis- 
'  cloture  of  the  contents  and  value  of  the 
baggage  and  may  charge  accordingly.  NeV' 
ins  V.  Bay  State  Steamboat  Co.,  4  Bosw, 
(AT.  Y.)  22$. 

113.  Regulation  by  ordinance.— 
A  company  was  authorized  to  build  a  short 


suburban  road,  to  extend  into  a  ctty,  sub* 
ject  to  such  restrictions  and  conditions  at 
the  city  might  prescribe.  The  city,  by  an 
ordinance,  fixed  the  fare  at  five  cents  for 
each  passenger  for  all  distances  within  tlie 
rity  limits.  Subsequently  an  i\ct  was  passed 
authorizing  the  company  to  collect  not 
more  than  thirty  cents  for  a  ride  over  the 
entire  road,  and  not  more  than  six  cents  for 
each  mile  or  fraction  thereof  for  way  pas- 
sengers on  any  portion  of  the  road.  Held, 
that  the  company  could  not  charge  a  pas- 
senger to  the  city  from  a  place  less  than  a 
mile  from  the  city  more  than  eleven  cents, 
that  is,  the  five  cents  for  the  city  ride  and 
the  six  cents  for  the  fractional  ride  outside 
of  the  city.  Baltimore  &*  Y,  Turnpike 
Road  V.  Boone,  45  Aid.  344. 

And  as  the  limit  was  fixed  by  law,  the  com- 
pany could  not  exercise  its  discretion  as  to 
the  amount  of  the  fare,  and  could  not  charge 
more  than  the  fixed  amount  by  giving  a 
"drawback."  Baltimore  S-  Y.  Turnpike 
Road  V.  Boone,  45  Md.  344. 

114.  Power  of  state  to  regulate, 
generally.* — The  right  of  a  state  reason- 
ably to  limit  the  amount  of  charges  by  a 
railroad  for  the  transportation  of  persons  or 
property  within  its  jurisdiction  cannot  be 
granted  away  by  the  legislature,  unless  by 
words  of  positive  grant,  or  words  equivalent 
in  law;  and  a  statute  which  grants  to  a 
company  the  right "  from  time  to  time  to 
fix,  regulate,  and  receive  the  tolls  and 
charges  by  them  to  be  received  for  trans- 
portation "  does  not  deprive  the  state  of  its 
power  to  act  upon  the  reasonableness  of 
tolls  and  charges.  Stone  v.  Farmers'  L.  S- 
T.  Co.,  116  U.  S.  307,  6  Sup.  Ct.  Rep.  334, 
388,1191. 

But  this  power  of  regulation  is  not  with- 
out limit.  The  power  to  regulate  is  not  a 
power  to  destroy,  and  limitation  is  not 
the  equivalent  of  confiscation.  Under  pre- 
tense of  regulating  fares  and  freights,  the 
state  cannot  require  a  company  to  carry 
persons  or  property  without  reward ;  neither 
can  it  do  that  which  in  law  amounts  to  a 
taking  of  private  property  for  public  use 
without  just  compensation,  or  without  due 
process  of  law.  Stone  v.  Farmers'  L.  6»  T, 
Co.,  116  U.  S.  yaj,  6  Sup.  Ct.  Rep.  334,  388, 
1 191.   See  also  Chicago.  M.  &*  St.  P.  R.  Co. 


*  See  also  Railway  Commissioners.  1-1 7. 
Power  of  state  to  regulate  freights  and  fares, 
see  notes,  9  L.  R.  A.  754  ;  11  /</.  452. 


TICKETS  AND   FARES,  115. 


10T7 


0  a  cttjr,  sub* 
conditions  as 
le  city,  by  an 
five  cents  for 
:es  within  the 
ct  was  passed 
collect  not 
ride  over  tiie 
n  six  cents  for 
for  way  pas- 
road.     Held, 
charge  a  pas- 
re  less  than  a 
eleven  cents, 
city  ride  and 
ride  outside 
Y,    Tumpikt 

y  law,  the  com- 
scretion  as  to 
>uld  not  charge 
t  by  giving  a 
Y.    Turnpike 

to  regulate, 

a  state  reason- 
charges  by  a 
n  of  persons  or 
kion  cannot  be 
lure,  unless  by 
ords  equivalent 
h  grants  to  a 
ime  to  time  to 
the  tolls  and 
ived  for  trans- 
the  state  of  its 
isonableness  of 
Farmers'  L.  &» 
).  a  Rep.  334, 

on  is  not  with- 
g;ulate  is  not  a 
itation  is  not 
n.  Under  pre- 
d  freights,  the 
ipany  to  carry 
eward ;  neither 
'  amounts  to  a 
for  public  use 
Dr  without  due 
>-»/<frj'  L.  &*  T, 

AV/».  334.  388, 
V-  St.  P.  R.  Co. 


lONF.RS,    1-17. 

;ighis  and  fares. 


V.  Mintusola,  134  U.  S.  418,  10  Sup.  Ct. 
Rep.  463,  702. 

A  legislature  hat  power  to  fix  rates  for 
transportation  of  passengers  by  railways, 
and  the  extent  of  judicial  interference  is 
protection  against  unreasonable  rates.  CAf- 
cago  &*  G.  T.  R.  Co,  v.  Wellman,  49  Am.  &• 
Eng.  R.  Cat.  I,  143  U.  S.  339,  12  Sup.  Ct. 
Rep.  400.  —  Quoted  in  Mercantile  Trust 
Co.  V.  Texas  &  P.  R.  Co.,  50  Am.  &  Eng.  R. 
Cas.  559,  51  Fed.  Rep.  529. 

It  is  competent  for  the  legislature  to  pre- 
scribe a  fixed  and  definite  compensation  for 
the  services  of  common  carriers.  People  v. 
Budd,  117  N.  Y.  I,  22  JV.  E.  Rep.  670,  26 
N.  Y.  S.  R.  533.— Following  Sawyer  v. 
Davis,  136  Mass.  239;  Munn  v.  Illinois,  94 
U.S.  113. 

Where  the  right  of  the  legislature  to 
regulate  fares  or  charges  on  railroads  is  re- 
served by  charter,  or  the  charter  was  granted 
subject  to  the  general  right  of  alteration  or 
repeal  by  the  legislature,  the  power  of  the 
legislature  to  prescribe  the  rate  of  compen- 
sation is  a  part  of  the  contract,  and  the  ex- 
ercise of  the  power  does  not  depend  upon 
any  general  legislative  authority  to  regulate 
the  charges  of  common  carriers.  But  where 
there  is  no  reservation  in  the  charter  the 
legislature  may,  nevertheless,  interfere  and 
prescribe  or  limit  the  charges.  People  v. 
Budd,  117  N.  Y.  I,  22  N.  E.  Rep.  670,  26 
N.  Y.  S.  R.  533. 

Under  its  reserved  power  to  alter  or  repeal 
charters,  a  state  legislature  may  alter  and 
regulate  the  fares  charged  by  a  carrier 
formed  by  the  consolidation  of  different 
roads  under  Ohio  Act  of  April  10,  1856. 
Shields  v.  State,  26  Ohio  St.  86.  — FOL- 
LOWED IN  Mansfield,  C.  &  L.  M.  R.  Co.  v. 
Brown,  26  Ohio  St.  223. 

115.  Particular  statutes  con- 
strued.— (1)  Arkansas. — Ark.  Act  of  April 
4,  1887,  regulating  the  rates  of  charges  for 
the  carriage  of  passengers,  is  constitutional. 
St.  Louis  &*  S.  F.  R.  Co.  v.  Ryan,  56  Ark. 
245,  19  S.  W.  Rep.  839.—  Distinguishing 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota, 
134  U.  S.  418.  Following  St.  Louis  &  S. 
F.  R.  Co.  V.  Gill,  54  Ark.  loi. 

(2)  Michigan. — Michigan  Act  of  June  28, 
1889,  fixing  the  amount  per  mile  to  be 
charged  for  the  transportation  of  passen- 
gers, does  not  violate  any  provision  in  the 
Constitution  of  the  United  States,  so  far  as 
disclosed  by  the  facts  in  this  case.  Chicago 
&»  G.   T.  R.  Co.  V.  Wellman,  49  Am.  &' 


Eng.  R.  Cas.  i,  143  U.  S.  339,  la  Sup.  Ct. 
Rep.  400. 

(3)  Missouri.  —  The  provision  of  Mo. 
Const,  art.  12,  §  14,  that  railways  within  the 
state  are  public  highways,  does  not  author- 
ize one  to  ride  on  a  train  without  payment 
of  fare  and  in  defiance  of  the  regulations  of 
the  company.  Farter  v.  Missouri  Pac.  R, 
Co.,  116  Mo.  81,  22  S.  W.  Rep.  631.— Quot- 
ing Hyde  V.  Missouri  Pac.  R.  Co.,  no 
Mo.  272. 

(4)  New  York.— It  was  the  purpose  of  the 
General  Railroad  Act  of  185010  confer  on 
existing  companies  the  same  duties,  privi- 
leges, and  liabilities  as  on  the  companies 
created  thereunder.  Therefore  an  existing 
corporation  which  was  limited  by  its  charter 
to  a  rate  of  fares  less  than  that  fixed  by  the 
act,  that  is,  three  cents  a  mile,  has  a  right  to 
increase  its  rates  to  three  cents,  fohnson 
V.  Hudson  River  R.  Co.,  49  A'.  Y.  455,  2  Am. 
Ry.  Rep.  285 ;  reversing  2  Sweeny  298.— 
Distinguishing  Clarkson  v.  Hudson  River 
R.  Co.,  12  N.  Y.  304. 

The  limitation  contained  in  the  Act  of 
1846,  ch.  195,  as  to  the  amount  of  fare  which 
defendant  road  might  collect  from  passen- 
gers, was  expressly  limited  to  that  portion 
of  its  own  road  within  the  state,  and  does 
not  apply  to  a  road  run  by  defendant  under 
lease.  Palm  v.  Mew  York,  N.  H.  &»  H.  R. 
Co.,  35  N.  Y.  S,  R.  457,  26  /.  &•  S.  502,  12 
N.  Y.  Supp.  554. 

But  the  above  limitation  does  not  extend 
to  a  spur  track  of  half  a  mile  over  lands  of 
the  lessor  company  to  a  race  track,  for  the 
purpose  of  carrying  persons  during  the  rac- 
ing season,  and  a  charge  of  fifty  cents  for 
the  round  trip  of  five  or  six  miles  each  way 
is  not  a  violation  of  the  statute  whic'i  fixed 
the  limit  at  three  cents  a  mile.  Palm  v. 
New  York.  N.  H.  *•  H.  R.  Co.,  42  N.  Y.  S. 
R.  219,  28  /.  &'  S.  162,  17  A'.  Y.  Supp.  471. 

The  provision  of  the  General  Railroad 
Act  of  1850  that  railroad  companies  should 
not  charge  more  than  three  cents  a  mile  for 
the  transportation  of  a  passenger  and  his 
ordinary  baggage,  under  a  penalty,  does  not 
apply  to  ordinary  horse  railroads  in  cities, 
but  only  to  railroads  whose  cars  are  pro- 
pelled by  steam,  which  transport  passengers 
and  their  baggage  from  one  fixed  place  or 
station  to  another,  without  stopping  at  any 
intermediate  point.  Hcyt  v.  Sixth  Ave.  R, 
Co.,  I  Daly  (N.  Y.)  528.  —  APPLIED  IN 
Mayor  of  N.  Y.  v.  Third  Ave.  R.  Co.,  3  N. 
Y.  S.  R.  181. 


1078 


TICKETS  AND  PARES,  lie. 


(5)  (74/(9.— Whether  the  rate  of  passenger 
fare  fixed  by  a  company  under  the  Act  of 
1848,  8  13  (S.  A  C.  271).  for  distances  less 
than  thirty  miles  be  reasonable  or  not  is  a 
question  of  fact  for  the  jury,  to  be  deter- 
mined under  such  i  istructions  by  the  court 
as  the  circumstances  of  the  particular  case 
may  require.  Smith  v.  Pittsburg,  Ft,  W.  &* 
C.  H.  Co.,  33  Ohio  St.  10.— Followed  im 
Peters  v.  Marietta  &  C.  R.  Co..  18  Am.  & 
Eng.  R.  Cas.  492,  42  Ohio  St.  275. 

Under  the  Act  of  March  30,  187$  (72  L. 
143),  which  provides  that  "any  corporation 
operating  a  railroad,  in  whole  or  in  part  in 
this  state,  may  demand  and  receive  for  the 
transportation  of  passengers  on  said  road 
not  exceeding  three  cents  per  mile  for  a 
distance  of  more  than  eight  miles;  provided 
the  fare  shall  always  be  made  that  multiple 
of  five  nearest  reached  by  multiplying  the 
rate  by  the  distance."  a  charging  of  twenty- 
five  cents  for  carrying  a  passenger  a  distance 
less  than  eight  miles  and  more  than  six 
miles  will  not,  as  a  matter  of  law,  be  de- 
dared  unreasonable.  Cincinnati,  S.  &»  C. 
R.  Co.  V.  Skillman,  13  Am.  &*  Eng.  R.  Cas. 
31,  39  Ohio  St.  444. 

(6)  Virginia.— k  state  has  the  right  to 
limit  reasonably  the  amount  of  charges  for 
the  transportation  of  persons  and  property 
withfnitsown  jurisdiction,  unless  restrained 
by  some  contract  in  the  charter,  or  unless 
what  is  done  amounts  to  a  regulation  of 
foreign  or  interstate  commerce.  Norfolk  &* 
IV.  R.  Co.  v.  Pendleton,  86  Va.  1004,  11  S. 
E.  Rep.  1062. 

A  company  succeeding  to  the  rights  and 
liabilities  of  another  is  subject  to  a  section 
of  the  former's  charter  which  provides  that 
it  shall  be  subject  to  all  the  laws  of  the 
state,  whereof  the  act  of  1853  prescribing 
what  rates  of  toll  shall  be  charged  for 
transportation  is  one,  notwithstanding  any 
provision  in  the  charter  granted  to  its  pred- 
ecessor,  giving  to  it  the  power  to  regulate 
its  own  tolls  until  a  certain  event,  which  has 
never  occurred.  Norfolk  &*  W.  R.  Co.  v. 
Pendleton,  86  Va.  1004,  11  S.  E.  Rep.  1062. 
—Followed  in  Norfolk  &  W  R.  Co.  v. 
Pendleton,  88  Va.  350. 

116.  Posting  schedule  of  passen- 
ger rates— Florida. — A  rule  adopted  by 
the  railroad  commission  requiring  each 
company  to  post  in  a  conspicuous  place, 
and  keep  continuously  posted,  in  each  of 
Its  stations,  a  copy  of  the  schedule  of  its 
freight  and    passenger   rates,  revised  and 


adopted  by  the  commiision  for  the  ace  of 
the  company,  rules  and  regulations,  official 
classifications,  and  table  of  distances,  means 
that  the  publication  shall  be  in  placard  or 
bill  form,  and  that  the  placards  shall  be  so 
attached  to  something  in  a  conspicuous 
place  in  each  station  that  they  can,  in  the 
position  in  which  they  are  placed,  or  with* 
out  being  removed,  be  read  conveniently  by 
the  public,  and  that  they  shall  be  kept 
posted  in  this  manner  continuously.  NaiU 
ing  up  by  one  corner  in  a  conspicuous  place 
in  a  station,  and  in  such  manner  as  to  be 
accessible  to  every  one,  a  pamphlet  of  about 
eleven  printed  pages,  containing  the  rules 
and  regulations  governing  the  transporta« 
tion  of  passengers  and  freight,  or  a  similar 
pamphlet  containing  the  classifications,  is 
not  a  posting  within  the  meaning  of  the 
rule ;  nor  is  the  binding  of  these  pamphlets 
and  the  schedules  of  freight  and  passenger 
rates  together  and  placing  them  conspicu* 
ously  upon  a  shelf  desk  in  the  station 
agent's  office  such  a  posting.  State  ex  rel. 
V.  Pensacola  &*  A.  R.  Co.,  46  Am.  &*  Eng. 
R.  Cas.  704,  27  Fla.  403,  9  So.  Rep.  89. 

Where  a  schedule  of  passenger  rates  is 
headed  "  Pensacola  and  Atlantic  Railroad 
Ticket  Rates,"  and  it  states  the  full  sum 
charged  from  each  station  to  any  other  sta* 
tion.  that  half  rates  will  be  charged  for 
children  between  designated  ages  traveling 
with  parents  or  guardian,  and  that  no  charge 
will  be  made  for  those  under  a  specified  age 
traveling  in  the  same  manner,  and  gives  the 
extra  charge  to  be  collected  of  passengers 
who  omit  to  purchase  tickets,  and  it  is  not 
denied  that  the  charges  correspond  in 
amount  with  the  passenger  rates  revised 
and  adopted  by  the  commission  for  the  use 
of  the  company,  and  it  does  not  appear  that 
passenger  rates  have  ever  been  prescribed 
or  adopted  by  the  commission  in  any  other 
form  for  the  company,  the  schedule  will  be 
held  suflicient  as  to  its  contents,  and  the 
company  cannot  be  required  in  a  proceed- 
ing by  mandamus  to  state  in  such  schedule 
the  rate  per  mile  or  the  distances  between 
stations,  in  the  absence  of  any  law  or  any 
rule  of  the  commission  requiring  it.  State 
ex  rel.  v.  Pensacola  &*  A.  R.  Co.,  46  Am.  &* 
Eng.  R.  Cas.  704,  27  Fla.  403,  9  So.  Rep.  89. 

General  rule  4,  adopted  by  the  commis- 
sion September  23,  1889,  does  not  require 
that  the  schedule  of  passenger  rates  shall 
state  the  distances  between  stations.  Stale 
ex  rel.  v.  Pensacola  &*  A.  R.  Co.,  46  Am. 


for  the  nse  of 
ulations.  official 
listances,  means 
e  in  placard  or 
rds  ihall  be  so 
a  conspicuous 
hey  can,  in  the 
placed,  or  with* 
conveniently  by 
shall   be   kept 
nuously.    NatU 
nspicuout  place 
lanner  as  to  be 
nphlet  of  about 
lining  the  rules 
the  transporta- 
ht,  or  a  similar 
lassifications,  is 
meaning  of  the 
hese  pamphlets 
and  passenger 
them  conspicu* 
in   the   station 
g.    Statt  ex  rtl. 
^6  Am.  &*  Etig: 
t.  Rep.  89. 
isenger  rates  is 
■antic  Railroad 
!S  the  full  sum 

0  any  other  sta* 
be  charged  for 
d  ages  traveling 
d  that  no  charge 
'  a  specified  age 
T,  and  gives  the 
d  of  passengers 
s,  and  it  is  not 
correspond  in 
r  rates  revised 
iion  for  the  use 
not  appear  that 
teen  prescribed 
in  in  any  other 
:hedule  will  be 
ntents,  and  the 

1  in  a  proceed- 
such  schedule 

cances  between 
any  law  or  any 
iring  it.  State 
Co.,  46  Am.  <5- 
.  9  So.  Rep.  89. 
|r  the  commis- 
es  not  require 
%tx  rates  shall 
tations.  SttUe 
'.  Co..  46  Am. 


TICKETS  AND  FARES,  117-120. 


1079 


*•  Et^,  R.  Cat.  704,  n  Fla.  403,  9  So. 
Rep.  89. 

A  table  which  does  not  of  itself  or  upon 
its  face  give  the  distance  between  any  two 
stations  on  a  railroad  is  not  a  table  of  dis- 
tances within  the  meaning  intended  by  such 
rule  of  the  commission.  It  is  not  sufficient 
if  the  schedule  merely  supply  data  for  com- 
puting distances  between  stations.  State 
ex  rel.  v.  Pensacola  6-  A.  R.  <<>.,  46  Am.  &* 
Eng.  R.  Gas.  704,  27  Fla.  4c  ,.  9  So.  Rep.  89. 

The  fact  that  a  schedule  of  passenger 
rates  is  in  two  parts,  or  on  two  cards  in- 
stead of  one,  is  not,  where  the  two  cards 
may  be  posted  together,  and  so  posted  read 
as  one,  of  itself  a  violation  of  the  rule  re- 
quiring the  schedule  to  be  posted.  State  ex 
rel.  v.  Pensacola  6-  A.  R.  Co.,  46  Am.  &* 
Eng.  R.  Cat.  704,  27  Fla.  403,  9  So.  Rep.  89. 

In  the  absence  of  a  rule  of  the  commis- 
sion, or  a  law,  prescribing  the  size  of  type 
in  which  a  schedule  of  passenger  rates  or 
table  of  distances  shall  be  printed  for  post- 
ing, a  court  cannot  by  mandamus  direct  in 
what  size  type  they  shall  be  printed.  State 
ex  rel.  v.  Pensacola  &*  A.  R.  Co.,  46  Am.  S* 
Eng.  R.  Cas.  704,  27  Fla.  403,  9  So.  Rep.  89. 

Passenger  rule  6  and  freight  rules  3  and 
II  of  the  rules  adopted  by  the  commission 
September  23,  1889,  are  not  inapplicable  to 
the  Pensacola  and  Atlantic  railroad  com- 
pany. They  should  be  posted  as  other  rules 
applicable  to  it.  State  ex  rel.  v.  Pensacola 
&*  A.  R.  Co.,  46  Am.  &*  Eng.  R.  Cas.  704,  27 
Fla.  403,  9  So.  Rep.  89. 

Where  a  company  has,  under  freight  rule 
3  of  the  commission,  the  right  to  make  at 
its  discretion  special  rates  reduced  below 
commission  rates  for  particular  persons  and 
places  for  temporary  use,  such  special  rates 
need  not  be  posted  under  the  requirements 
of  general  rule  4  of  the  commission.  State 
ex  rel.  v.  Pensacola  &*  A.  R.  Co. ,  46  Am.  &* 
Eng.  R.  Cas.  704,  27  Fla.  403,  9  So.  Rep.  89. 
It  is  the  duty  of  companies  not  only  to 
post,  but  to  keep  continuously  posted,  as 
provided  by  general  rule  4,  whatever  falls 
within  its  provisions.  Furnishing  the  post- 
ers to  agents,  with  instructions  to  post, 
does  not  answer  the  public  duty  imposed 
upon  companies.  State  ex  rel.  v.  Pensacola 
&*  A.  R.  Co.,  46  Am.  &*  Eng.  R.  Cas.  704, 
27  Fla.  403,  9  So.  Rep.  89. 

2.  Payment  and  Collection. 

117.     Tender    of  United    States 
notes. —  In  the  absence  of  special  statute 


providing  for  payment  In  coin,  a  tender  by 
a  passenger  of  payment  of  his  fare  in  legal 
tender  notes  is  sufficient.  TarbiU  v.  Central 
Pac.  R.  Co.,  34  Cat.  616. 

Under  Act  of  Congress  of  Feb.  25,  1862, 
declaring  that  the  notes  thereby  authorized 
shall  "  be  lawful  money  and  a  legal  tender 
for  all  debts,  public  and  pi  ivate,  within  the 
United  States,  except  duties  on  imports 
and  interest,"  a  company  is  bound  to  accept 
such  notes  at  their  face  value  in  payment 
of  fare  upon  its  railroad,  when  payment  is 
demanded  in  advance  of  transportation  on 
such  road.  Lewis  v.  New  York  C.  R.  Co., 
49  Barb.  (N.  Y.)  330. 

1 18.  Using  ticlcet  in  reverse  direc- 
tion. —  Where  a  passenger  deliberately 
enters  a  train,  knowing  that  his  ticket 
entitles  him  to  be  carried  in  the  reverse 
direction  from  that  in  which  he  proposes 
to  go,  and  with  ample  opportunity  to  pro* 
cure  another,  the  conductor  may  refuse  to 
honor  such  ticket  and  has  the  right  to  col- 
lect fare.  Godfrey  v.  Ohio  &•  M.  R.  Co., 
yi  Am.  S"  Eng.  R.  Cas.  8,  116  fnd.  30,  15 
JFest.  Rep.  533,  18  A^.  E.  Rep.  61. 

110.  Passenger  carried  beyond 
destination.'*'  —  Plaintiff  purchased  a 
round-trip  ticket  at  reduced  rates,  and 
signed  a  contract  to  make  a  continuous 
journey  each  way.  On  returning  he  got  on 
a  train  which  according  to  schedule  did  not 
stop  at  his  destination.  The  conductor 
punched  and  took  up  his  ticket,  but  refused 
to  stop  the  train  and  carried  plaintiff  to  the 
next  station,  some  miles  beyond,  charg- 
ing regular  fare  for  the  extra  distance. 
Plaintiff  resided  near  the  station,  but  testi- 
fied that  he  did  n-^*,  know  that  the  train  did 
not  stop  at  his  station.  Held,  that  he  was 
not  entitled  to  recover.  Trotlinger  v.  East 
Tenn.,  V.  &>  G.  R.  Co.,  13  Am.  S*  Eng.  R. 
Cas.  49,  II  Lea  {Tenn.)  533. 

If  a  passenger,  holding  a  return  ticket,  on 
the  return  journey  goes  beyond  the  station 
named  to  another  station,  he  must  pay  the 
additional  fare  even  though  the  price  of  a 
return  ticket  from  the  departure  station  to 
the  further  station  is  the  same.  Great 
Western  R.  Co.  v.  Pocock,  41  L.  I'.  415. 

120.  Who  responsible  for  child's 
fare.—  If  a  conductor  finds  a  child  sitting 
beside  a  female  passenger,  and  knows  that 
its  father  is  in  the  car,  or  could  know  upon 


*  See  also  Carriage  of  Passengers,  260* 
251. 


nr 


1080 


TICKETS   AND    FARES,  121-128. 


ri 


i;  ri 


1 


h  ti 


i2S 


'♦•• 


proper  inquiry,  he  has  no  right  to  hold  the 
female  pausenger  responsible  for  the  child's 
fare.  Philadtlphia,  W.  &*  B.  K.  Co.  v. 
Hotflich,  1 8  Am.  **  Etig.  R.  Cat.  373, 6a  Md. 
300,  JO  Am.  Rtp.  233. 

By  7  &  8  Vict.  c.  8$,  {  6,  railway  com- 
panies iiust  carry  by  certain  trains  children 
under  tliree  years  of  age  free  of  charge. 
Amtin  v.  Great  Wtitirn  R.  Co.,  L.  R.  2  Q. 
B.  441,  %  B.  &*  S.  327,  36  L.J.  Q.  B.  201, 
IS  Py.  R.  863.  16  L.  T.  320. 

121.  AUowiiier  discount  for  pur- 
chase of  tickutH.— It  is  a  reasonable  reg- 
ulation for  a  carrier  to  fix  rates  of  fare  by  a 
tariff  posted  at  the  stations,  and  to  allow  a 
uniform  discount  on  these  rates  to  those 
who  purchased  ticlcets  before  entering  the 
cars.    State  v.  Goo/d,  $3  Me.  279. 

A  regulation  of  a  carrier,  that  a  passenger 
who  shall  purchase  a  ticket  before  entering 
its  cars  sliall  be  entitled  to  a  discount  from 
the  advertised  rates  of  fare,  but  if  such 
ticket  is  not  purchased,  the  full  rate  shall  be 
charged,  is  a  reasonable  regulation,  and 
does  not  violate  a  rule  prescribed  by  stat- 
ute, that  the  rates  shall  be  the  same  for  all 
persons  between  the  same  points.  Swan  v. 
Manchester  &*  L.  R.  Co..  6  Am.  &•  Eng.  R. 
Cas.  32^.  132  Mass.  116,  42  Am.  Rep.  433. 

122.  Right  to  charge  extra  when 
fare  is  paid  011  train.*  —  Where  a  pas- 
senger gets  on  a  train  without  a  ticket  and 
pays  extra  for  riding  to  a  certain  station, 
but  upon  getting  there  changes  his  mind 
and  decides  to  ride  further,  he  may  be  re- 
quired to  pay  extra  again.  Chicago,  B.  &* 
Q.  R.  Co.  V.  Parks,  18  ///.  460. 

A  company  has  a  right  to  make  and  en- 
force a  rule  requiring  passengers  who  do 
not  procure  tickets  to  pay  ten  cents  in  ad- 
dition to  the  regular  fare.  Lake  Erie  &*  W. 
R.  Co.  V.  Quisenberry,  48  ///.  App.  338. 

A  company  may  discriminate  in  its  pas- 
senger fares  in  favor  of  those  who  purchase 
tickets  before  entering  the  cars.  Jefferson- 
ville  R.  Co.  V.  Rogers,  28  Ind.  i.— Doubting 
AND  DISTINGUISHING  Crocker  V.  New  Lon- 
don, W.  4  P.  R.  Co.,  24  Conn.  249.  Quot- 
ing Nellis  V.  New  York  C.  R.  Co.,  30  N.  Y. 
505. — Approved  in  Swan  v.  Manchester  & 
L.  R.  Co.,  6  Am.  &  Eng.  R.  Cas.  337,  132 

*  Riglit  of  company  to  charge  passenger  extra 
who  fails  to  purchase  a  ticket,  see  58  Am.  ft 
Eng.  R.  Cas.  51,  abstr.;  note,  20  L.  R.  A.  483. 

Extra  fare  where  ticlcets  are  not  obtained,  see 
nntes,  13  Am.  ft  Eng.  R.  Cas.  36;  23  Id.  476;  41 
Am.  Dec  483;  11  Au.  St.  Rep.  650. 


Mass.  116,  42  Am.  Rep.  433.  Reconciled 
IN  Lake  Erie  h  W.  R.  Co.  v.  Fix,  1 1  i»  "^ 
Eng.  R.  Can.  109,  88  Ind.  381,  4$  Am 
^6^— Indianapolis,  P.  4*  C.  R.  Co.  v.  Kinard, 
46  Ind.  293,  6  Am.  Ry.  Rtp.  328.  Toledo,  W. 
6-  W.  R.  Co.  V.  Wright,  68  Ind.  586.— DlS- 
APPROVED  IN  Phettiplace  v.  Northern  Pac. 
R.  Co.,  84  Wis.  412.  Dlstinouished  in 
Lake  Erie  &  W.  R.  Co.  v.  Fix,  11  Am.  & 
Eng.  R.  Cas.  109,  88  Ind.  381,  4$  Am.  Rep. 
464.  Reviewed  in  Lake  Erie  &  W.  R.  Co. 
V.  Mays,  4  Ind.  App.  ^ly—Evansville  &*  I. 
R.  Co.  V.  Cilmore,  i  Ind.  App.  468,  27  N.  E. 
Rep.  992. 

A  regulation  of  a  company,  whereby  pas- 
sengers who  pay  their  fare  upon  the  train 
arc  required  to  pay  a  higher  rate  than  those 
who  purchase  tickets  before  entering  the 
cars,  is  reasonable,  and  the  company  wi"  be 
protected  in  its  enforcement.  Wi' 
Louisville  &*  N.  R.  Co.,  26  Am.  &*  I 
Cas.  258.  83  Ky.  511.  McGowen  V.  Morg,.,.  s 
I..  &*  T.  R.  6m  S.  Co.,  39  Am.  &-  Eng.  R. 
Cas.  460,  41  La.  Ann.  732,  6  So.  Rep.  606,  5 
L.  R.  A.  817.  State  v.  Ilnngerford,  34  Am. 
&*  Eng.  R.  Cas.  265,  39  Minn.  6,  38  A'.  W. 
Rep.  628.     Milliard  v.  Goold,  34  N.  H.  230. 

Under  a  statute  authorizing  a  company 
"  to  fix,  regulate,  and  receive  the  tolls  and 
charges  by  them  to  be  received  for  the  trans- 
portation of  property  or  persons,"  it  may 
establish  two  rates  of  fare,  discriminating 
between  cases  where  fare  is  paid  to  a  con- 
ductor and  where  a  ticket  Is  purchased. 
Bordeaux  v.  Erie  R.  Co.,  8  Hun  (N.  V.)  579. 

123.  When  ticket  might  have  been 
purchased. — A  rule  requiring  a  passenger 
traveling  without  a  ticket,  or  on  a  ticket 
which  has  been  forfeited,  to  pay  for  the  part 
of  the  route  already  passed  over  as  well  as 
the  part  yet  to  be  traveled  is  a  reasonable 
rule ;  and  on  his  failure  or  refusal  to  comply 
with  it,  the  passenger  may  be  ejected.  Man- 
ning V.  Louisville  &»  N.  R.  Co.,  95  Ala.  392, 
II  So.  Rep.  8.— Applying  Ward  v.  New 
York  C.  &  H.  R.  R.  Co..  56  Hun.  (N.  Y.)  268. 
Reviewing  Alabama  G.  S.  R.  Co.  v.  Car* 
michael,  90  Ala.  19. 

Passengers  who  fail  to  purchase  tickets 
may  be  charged  additional  fare  if  proper  con- 
veniences and  facilities  for  procuringtickets 
are  furnished  to  them.  Chicago,  B.  &*  Q.  R. 
Co.  V.  Parks.  18///.  460.- -Followed  in  St. 
Louis,  A.  &  C.  R.  Co.  v.  Dalby,  19  111.  353; 
Terre  Haute,  A.  &  St.  L.  R.  Co.  v.  VanatU, 
21  III.  188.  Limited  in  St.  Louis,  A.  &T. 
H.  R.  Co.  V.  South.  43  111.  176. 


Reconcilid 

Fix.  iii«        "^ 

I.  45  Am 
?.  Co.  V.  Kinard, 
328.   Toledo,  W. 
Ind.  586.— Dis- 

Northcrn  Pac. 

INOUISHED    IN 

Fix,  II  Am.  & 
I,  45  Am.  Rep. 
•ie  &  W.  R.  Co. 
^vattivillt  &*  I, 
p.  468,  27  A'.  E, 

y,  whereby  pai- 
upon  the  train 
rate  than  those 
re  entering  the 
:ompany  wi"  be 
;nt.  Wi' 
im.  &>  £ 
>en  V.  Mor^^..t 
\m.  &*  Eng.  R. 
\  So.  Rep.  606,  5 
^er/ord,  34  Am. 
n.  6,  38  A'.  W. 
f,  34  A^.  //.  230. 
ing  a  company 
e  tiie  tolls  and 
ed  for  the  trans- 
trsons,"  it  may 
,  discriminating 
I  paid  to  a  con- 
:  is  purchased. 
fun  (N.  V.)  579. 
ht  have  been 
ing  a  passenger 
or  on  a  ticket 
pay  for  the  part 
over  as  well  as 
is  a  reasonable 
sfusal  to  comply 
B  ejected.  Man- 
To.,  95  A/a.  392, 
Ward  V.  New 
[un.  (N.Y.)268. 
R.  Co.  V.  Car> 

urchase  tickets 
re  if  proper  con- 
rocuringtickets 
^ogo.B.&tQ.R. 
L LOWED  IN   St. 

ilby,  19  111.  353; 
Co.  V.  Vanatta, 
Louis,  A.  &  T. 
r6. 


TICKKTS   ANH    FARES,  124,125. 


1081 


! 


A  carrier  may  charge  a  passenger  who 
pays  his  fare  on  the  train  a  higher  rate  of 
fare  than  it  charges  one  who  buys  a  ticket 
before  entering  the  train,  if  it  extends  ample 
facilities  to  all  persons  who  desire  to  pur- 
chase tickets.  Chicago,  St.  L.  &'  P.  R.  Co. 
V.  Graham.  3  Ind.  App.  38,  29  A''.  E. 
R*p.  170. 

Under  Iowa  Act  of  1874,  ch.  63,  §  ?,  pro- 
viding that  "  a  charge  of  ten  cent^  may  be 
added  to  the  fare  of  any  passenger,  where 
the  same  is  paid  upon  the  cars,  if  a  ticket 
might  have  been  procured  within  a  rea- 
sonable time  before  the  departure  of  the 
train,"  it  is  not  necessary,  in  order  to  justify 
the  carrier  in  demanding  an  extra  charge 
and  in  ejecting  a  passenger  who  refuses 
to  pay  it,  to  keep  the  ticket  office  at  a 
small  station  open  until  the  very  moment 
that  the  train  leaves.  All  that  the  passen- 
ger  can  demand  is  that  he  have  a  reasonable 
opportunity  to  purchase  a  ticket.  Everett 
V.  Chicago,  R.  I.  &*  P.  R.  Co..  27  Am.  &'  Eng. 
R.  Cas.  98,  69  Iowa  15,  28  A''.  fV.  Rep.  410. 

Under  the  South  Carolina  statute,  where 
a  ticket  office  is  kept  open  for  thirty  min- 
utes before  ths  train  leaves,  a  passenger  who 
boards  the  train  without  having  purchased 
his  ticket  must  not  only  pay  the  ordinary 
fare,  but  also  twenty-five  cents  additional. 
Afoore  v.  Columbia  &*  G.  R.  Co.,  58  Am. 
&*  Eng.  R.  Cas.  493.  38  So.  Car.  t,  16  S.  E. 
Rep.  781. 

124.  Where  no  opportunity  was 
given  to  procure  ticket. — A  company 
has  a  right  to  enforce  a  regulation  that  pas- 
sengers paying  fares  to  conductors  shall  be 
charged  a  higher  rate  than  those  purchas- 
ing tickets,  but  it  must  afford  to  the  pas- 
senger every  reasonable  and  proper  facility 
to  procure  a  ticket.  St,  Louis,  A.  &*  C.  R. 
Co.  V.  Dalby.  19  ///.  353.— Disapproving 
Crocker  v.  New  London,  W.  &  P.  R.  Co., 
34  Conn.  249.  Following  Chicago,  B.  & 
Q.  R.  Co.  V.  Parks,  18  111.  460.— Limited  in 
St.  Louis,  A.  &  T.  H.  R.  Co.  v.  South,  43 
111.  176.— Chicago  5-  A.  R.  Co.  v.  Flagg,  43 
///.  364.— Approved  in  Swan  v.  Manches- 
ter &  L.  R.  Co.,  6  Am.  &  Eng.  R.  Cas.  327, 
132  Mass.  116,  42  Am.  Rep.  433. 

It  is  only  where  a  railroad  company  af- 
fords a  reasonable  opportunity  to  a  pas- 
senger to  purchase  a  ticket  that  it  will  be 
allowed  to  charge  such  passenger  a  higher 
rate  of  fare  because  he  is  without  a  ticket. 
Lake  Erie  &>  W.  R.  Co.  v.  Close,  5  fnd. 
App.  444.  32  N.  E.  Rep.  588.     Lake  Erie  &' 


W.  R.  Co.  V.  Mays,  4  /W.  Afp.  413.  30  A*. 
£.  Rep.  1106. 
120.  —  because  office  was  closed. 

— Before  a  company  can  collect  excess  fare 
from  a  passenger  who  has  not  purchased  a 
ticket,  under  Kan.  Act  of  1886,  ch.  139,  it 
must  have  a  ticket  office  open  for  the  sale 
of  tickets  at  the  station  where  passage  is 
taken,  at  least  thirty  minutes  prior  to  the 
departure  of  the  train.  A  keeping  of  the 
office  open  for  thirty  minutes  prior  -othe 
advertised  time  of  departure  will  not  suffice 
where  the  train  is  behind  time.  If  the 
office  is  not  open,  with  an  agent  in  the 
same,  ready  upon  call  to  sell  tickets,  long 
enough  before  the  actual  departure  of  the 
train,  whether  delayed  or  not,  to  enable 
passengers  to  purchase  tickets  and  safely 
board  the  train,  no  excess  fare  can  be  col- 
lected. Atchison,  T.  &*  S.  F.  R,  Co.  v. 
Dwelle,AA  Am.  &*  Eng,  R.  Cas.  402,  44  Kan, 
394.  24  Pac.  Rep.  500. 

The  fact  that  a  ticket  office  is  closed  does 
not  raise  a  presumption  that  a  regulation  to 
sell  tickets  at  less  than  the  fare  paid  on  the 
cars  is  discontinued.  Du  Laurans  v.  St. 
Paul  &*  P.  R.  Co.,  15  Minn.  49  {Gil.  29). 

Under  N.  Y.  Act  of  1857,  ch.  228,  which 
provides  that  defendant  company,  at  every 
station  on  its  road  where  a  ticket  office 
shall  be  established,  shall  keep  the  same 
open  for  the  sale  of  tickets  at  least  one  hour 
prior  to  the  departure  of  each  passenger 
train  from  such  station,  but  that  it  shall 
not  be  required  to  keep  such  offices  open 
between  9  p.m.  and  5  a.m.  except  at  Utica 
and  six  other  stations  on  its  road,  and 
that  if  any  person  shall,  at  any  station 
where  a  ticket  office  is  established  and 
open,  enter  the  cars  as  a  passenger  without 
first  having  purchased  a  ticket,  it  shall  be 
lawful  for  the  company  to  demand  and  re- 
ceive from  him  a  sum  not  exceeding  five 
cents,  in  addition  to  the  usual  rate  of  fare, 
the  extra  fare  can  only  be  demanded  when 
the  passenger  fails  to  purchase  his  ticket  at 
an  established  ticket  office  that  is  open. 
Ntllis  V.  New  York  C.  R.  Co.,  30  A^  Y. 
505.— Distinguished  in  Swan  v.  Manches- 
ter &  L.  R.  Co.,  6  Am.  &  Eng.  R.  Cas.  327, 
132  Mass.  116,  42  Am.  Rep.  432;  Bordeaux 
V.  Erie  R.  Co..  8  Hun  (N.  Y.)  579.  Quoted 
IN  Jeflersonville  R.Co.  v.  Rogers,  28  Ind.  t. 

A  company  has  no  right  to  charge  extra 
for  fare  paid  on  the  cars  where  the  ticket 
office  was  closed  so  long  before  the  depart- 
ure of  the  train  that  a  passenger  arriving 


1082 


TICKETS  AND   FARES,  126-129. 


in  time  to  buy  liii  ticlcet  and  get  safely  on 
the  cars  was  unable  to  purchase.  Porter 
V.  Ntw  York  C.  R.  Co.,  34  Bard.  (,N.  V.)  353. 

Where  the  office  was  open  until  the  time 
fixed  for  the  departure  of  the  train,  which, 
however,  arrived  late,  and  the  plaintiff,  who 
did  not  apply  until  he  heard  the  whistle, 
found  the  office  closed,  the  statute  requir- 
ing the  company  to  keep  the  office  open 
''  at  least  an  hour  prior  to  the  departure  of 
each  train"— A/A/,  that  the  statute  had  not 
been  complied  with.  Porter  v.  New  York 
C.  R.  Co.,  -ixJiarb.  {N.  Y.)  353.  — DISTIN- 
GUISHED IN  Swan  V.  Manchester  &  L.  R. 
Co.,  6  Am.  &  Eng.  R.  Cas.  327,  132  Mass. 
1 16,  42  Am.  Rep.  432 ;  Bordeaux  v.  Eri-  R. 
Co.,  8  Hun  (N.  Y.)  579. 

Under  New  York  Act  of  March  27,  1857, 
entitled  "  An  act  to  prevent  extortion  by 
railroad  companies,"  and  providing  that  any 
company  which  shall  receive  a  greater  fare 
than  that  allowed  by  law  shall  forfeit  fifty 
dollars,  together  with  the  excess  so  received, 
a  conductor  violates  the  statute  by  receiv- 
ing more  than  the  utatutory  limit,  though 
he  did  not  know  of  the  absence  of  the 
ticket  agent  where  plaintiff  got  on,  and  ex- 
acted the  extra  fare  in  good  faith.  Porter 
V.  New  York  C.  R.  Co..  z^  Barb.  (N.  Y.)  353. 

126.  gettingr  o»  at  stations 

Iiavlner  no  ticket  office.  —  A  company 
which  has  provided  a  station  without  a 
ticket  office,  and  at  which  its  passenger 
trains  stop,  has  not  put  it  in  the  power  of  a 
traveler  to  comply  with  a  rule  requiring  ad- 
ditional payment  where  fare  is  paid  on  the 
train,  and  tiuch  rule  would  be  unreasonable 
as  applied  to  such  stations,  or  to  such  trav- 
eler, V.  h'jn  he  offered  to  pay  the  usual  fare. 
If  the  railroad  has  failed  or  neglected  to  fur- 
nish to  the  traveler  the  opportunity  to  pro- 
cure a  ticket,  and  he  applies  for  a  passage  or 
enters  the  train  without  having  such  ticket, 
but  offers  to  pay  the  regular  fare,  it  cannot 
lawfully  eject  him.  Poo/e  v.  Northern  Pac, 
R,  Co.,  16  Oreg.  261,  19  Pac.  Rep.  107. 

A  rule  of  a  company  requiring  a  pas- 
senger without  a  ticket  to  pay  extra  fare  is 
unreasonable  and  unlawful  if  a  ticket  can- 
not be  procured  at  the  station  from  which 
passage  is  taken,  although  the  company  has 
a  system  whereby  the  extra  fare  may  be  re- 
funded. Phettipiace  v.  Northern  Pac.  R. 
Co.,  58  Am.  &»  Eng.  R.  Cas.  61,  84  Wis. 
412,  54  N.  IV.  Rep.  1092. 

One  who  has  bought  a  ticket  to  a  station 
whwe  there  is  no  ticket  office,  but  decides, 


before  reaching  it,  to  go  on  to  th2  next  sta. 
tion  beyond,  cannot  lawfully  be  charged 
more  than  the  regular  rate  for  the  extra 
distance.  Phettipiace  v.  Northern  Pac.  R. 
Co.,  58  Am.  &*  Eng.  R.  Cas.  61,  84  Wis. 
412,  54  A''.  W.  Rep.  1092, 

127.  Extracharere  must  be  reason- 
able.— A  rule  to  charge  one  price  to  pas- 
sengers purchasing  tickets  before  entering 
the  cars,  and  to  exact  a  small  additional 
sum  of  those  who  neglect  to  do  so,  is  not 
unreasonable.     State  v.  Chovin.  7  Iowa  204. 

A  regulation  requiring  passengers  with- 
out tickets  to  pay  twenty-five  cents  extra 
is  not  unreasonable.  McGowen  v.  Morgan's 
L.  &*  T.R.&'  S.  Co.,  39  Am,  &*  Eng.  R. 
Cas.  460,  41  La.  Ann.  732,  6  So.  Rep.  606. 

5  L.  R.  A.  817. 

1 28. and  witbin  tbe  maximum 

legal  rate.  —  A  company  may  charge  a 
higher  price  for  carrying  passengers  when 
the  fare  is  paid  on  the  train  than  it  does  at 
its  ticket  offices,  provided  the  price  thus 
charged  is  reasonable,  and  the  fare  charged 
on  the  train  does  not  exceed  the  maximum 
allowed  by  law.  Skillman  v.  Cincinnati,  S. 
&*  C.  R.  Co.,ii  Am.  &»  Eng.  R.  Cas.  31,  39 
Ohio  St.  444. 

Or  by  charter.  Louisville,  N.  &-  G.  S.  A\ 
Co.  V.  Guinan.i^  Am.  &*  Eng.  R.  Cas.  37, 1 1 
Lea  (Tenn.)  98,  47  Am.  Rep.  279. 

120.  Drawback  checks  for  extra 
fare  paid. — The  fact  that  a  company  gives 
a  drawback  coupon  for  the  extra  fare,  on 
which  a  passenger  may  collect  back  the 
excess  from  any  agent  at  a  station,  does  not 
afiect  the  validity  of  a  regulation  requiring 
passengers  without  tickets  to  pay  extra. 
McGowen  v.  Morgan's  L.  &*  T.  R.  &»  S.  Co., 
39  Am.&»Etig.  R.  Cas.  460, 41  La.  Ann.  732, 

6  So.  Rep.  606,  5  L.  R.  A.%17. 

A  regulation  which  requires  passengers 
who  fail  to  procure  tickets  to  pay  an  addi- 
tional charge  of  ten  cents,  which  they  are 
entitled  to  have  refunded  upon  presenta- 
tion at  any  ticket  office  of  a  check  delivered 
to  them  by  the  conductor,  is  not  unreason- 
able or  oppressive,  or  needlessly  incon- 
venient to  the  traveler.  Such  additional 
charge  is  not  "a  charge  for  transportation  " 
within  the  meaning  of  a  statute  limiting  the 
rate  of  fare  which  may  be  charged  for  the 
carriage  of  passengers.  Reese  v.  Pennsyl- 
vania R.  Co.,  41  Am.  &*  Eng.  R.  Cas.  31, 
131  Pa.  St,  422,  19  Atl.  Rep.  72. 

Such  a  regulation  is  not  unfair  and  partial 
in   its  operation  because  it  provides  that 


TICKETS  AND   FARES,  130-132. 


1083 


I  to  ths  next  sta« 
ully  be  charged 
e  for  the  extra 
Northern  Pac.  R. 
us.  6l,  84   Wis. 

list  be  reason- 

>ne  price  to  pas- 

before  entering 

small  additional 

to  do  so,  is  not 

Tvin,  7  Iowa  204. 

passengers  with- 

•five  cents  extra 

rwen  v.  Morgan's 

4m.  &*  Eng.  R. 

6  So.  Rep.  606, 

the  maximum 

'  may  charge  a 
>assengers  when 
I  than  it  does  at 
1  the  price  thus 
the  fare  charged 
d  tlie  maximum 
V.  Cincinnati,  S. 
f.  R.  Cas.  31,  39 

'e,  N.  &*  G.  S.  K. 
tg.  R.  Cas.  yj,  1 1 
K  279. 

cks  for  extra 
a  company  gives 
e  extra  fare,  on 
:ollect  back  tiie 
station,  does  not 
ilation  requiring 
:s  to  pay  extra. 
>  T.R.&*  S.  Co., 
41  La.  Ann.  732, 

17- 

uires  passengers 
to  pay  an  addi- 
,  wliich  they  are 

upon  presenta- 
Lchecic  delivered 
is  not  unreason- 
;edlessly  incon- 
Such  additional 

transportation  " 
tute  limiting  the 
charged  for  the 
V/j*  V.  Pennsyl- 
Eng.  R.  Cas.  31, 
K  72. 

jnfair  and  partial 
it  provides  that 


passengers  entering  the  train  at  stations 
where  there  is  no  ticket  office  and  passen- 
gets  traveling  on  trains  where,  on  account 
of  the  excessive  rush  of  business,  it  is  im> 
possible  to  issue  the  refunding  checks,  shall 
not  be  required  to  pay  the  additional  charge. 
Rust  V.  Pennsylvania  R.  Co.,  41  Am.  &* 
Ef^.  R.  Cas.  31,  131  Pa.  St.  422,  19  Ati. 
Rep.  72. 


3.  Overcharges ;  Excessive  Fares. 

130.  Remedy,  generally  —  JtiriS" 
diction.— Cal.  Act  of  April  14,  1863,  pro- 
viding  for  the  enforcement  of  penalties 
against  a  railroad  for  overcharges  upon 
fares,  is  an  entirety,  and  the  unconstitution- 
ality of  a  portion  thereof  would  be  fatal  to 
the  whole  act.  Reed  v.  Omnibus  R.  Co.,  33 
Cal.  212. 

A  district  court  in  California  has  no  juris- 
diction  of  actions  to  recover  a  forfeiture 
imposed  upon  railroad  companies  by  the 
Act  of  April  14, 1864.  for  charging  an  excess- 
ive fare,  the  act  prescribinp;  that  the  recov- 
ery shall  be  before  a  justice.  Reed  v.  Omni' 
bus  R.  Co.,  33  Cal.  212. 

Under  III.  Act  of  April  13,  1871.  a  rail- 
road is  not  liable  for  charging  a  passenger 
more  than  the  prescribed  rate,  where  the 
charge  is  not  unreasonable,  and  where  the 
commissioners  had  not  at  the  time  assigned 
the  road  to  any  class  as  required  by  the  act. 
Moore  v.  Illinois  C.  R.  Co.,  68  ///.  38$. 

An  allegation  in  a  complaint  charging  a 
company  with  extorting  illegal  or  excessive 
fares  from  its  passengers  is  no  ground  for 
granting  an  injunction  to  prevent  its  laying 
certain  side  tracks  or  turnouts  in  a  street,  or 
for  erecting  certain  buildings  across  a  street. 
If  the  company  violates  its  charter  the 
remedy  is  by  an  action  by  the  attorney-gen- 
eral, or  an  action  for  damages  by  the  indi- 
vidual who  pays  the  extra  fare.  Haigkt  v. 
New  York  El.  R.  Co.,  ^9 How.  Pr.  {N.  Y.)  20. 

131.  Complaint  —  Petition.  —  It  is 
not  necessary  that  a  complaint  in  an  action 
against  a  consolidated  company,  to  recover 
a  forfeiture  for  charging  more  than  the 
legal  fare,  should  set  out  the  various  statutes 
by  which  the  consolidation  was  effected, 
or  show  that  the  consolidated  company 
was  restricted  to  «  two-cent  fare  per  mile. 
It  is  sufficient  to  allege  that  the  company 
is  duly  organized  and  that  it  is  authorized  to 
receive  a  certain  fare,  and  has  demanded 


and  received  a  higher  fare.  Nellis  r.  New 
York  C.  R.  Co.,  30  N.  Y.  505. 

A  complaint  contained  allegations  that 
defendant  company  had,  contrary  to  N.  Y. 
Act  of  March  27,  1857.  "to  prevent  extor- 
tion by  railroad  companies,"  charged  plain« 
tiff  thirteen  cents  extra  fare  on  567  occasions, 
and  asked  for  judgment  for  the  excess,  and 
fifty  dollars  penalty  for  each  violation  of 
the  statute.  Held,  that  he  was  entitled  to 
recover  one  penalty  of  fifty  dollars,  and  the 
excessive  fare  paid,  but  not  566  penalties  in 
addition.  Bissell  v.  New  York  C.  &*  H.  R. 
R.  Co.,  67  Bard.  {N.  Y.)  385:  affirmed  at 
general  term  in  67  Bari.  393,  n. 

A  petition  under  Ohio  Act  of  April  20. 
i874>  giving  a  penalty  of  $150  against  a 
company  for  an  overcharge  on  passengers 
or  property,  is  not  bad  on  demurrer  for  want 
of  an  averment  that  the  purchaser  of  the 
ticket  was,  in  fact,  carried  on  the  ticket  for 
which  excessive  fare  was  exacted.  Cincin- 
nati, S.  &*  C.  R.  Co.  V.  Cook,  6  Am.  &*  Eng. 
R.  Cas.  317,  37  Ohio  St.  265. 

Neither  is  a  petition  under  the  above  act 
bad  for  want  of  an  averment  that  the  excess- 
ive fare  was  paid  in  due  course  of  business, 
although  judgment  was  not  rendered  until 
after  the  act  was  repealed,  saving  only  pend- 
ing actions  where  the  excessive  fare  was 
paid  in  due  course  of  business  and  not 
for  the  purpose  of  obtaining  the  penalty. 
Several  causes  of  action  for  penalties  under 
the  statute  may  be  united  in  the  same  peti- 
tion. Cincinnati,  S.  &-  C.  R.  Co.  v.  Cook,  6 
Am.  &*  Eng.  R.  Cas.  317,  37  Okio  St.  263. 

133.  Forfeiture  and  penalty.  — 
Where  a  ticket  agent,  contrary  to  orders, 
makes  an  excessive  charge,  his  act  is  within 
the  scope  of  his  authority,  and  the  company 
is  liable  for  the  statutory  penalty.  St.  Louis 
5*  S.  F.  R.  Co.  V.  Ryan,  56  Ark.  245,  19  S. 
W.  Rep.  839.— Distinguishing  Grover  & 
B.  Sewing  Macli.  Co.  v.  Missouri  Pac.  R. 
Co.,  70  Mo.  672;  Friedlander  v.  Texas  &  P. 
R.  Co.,  130  U.  S.  416. 

A  company  which  exacts,  after  the  passage 
of  the  Legal  Tender  Act  of  1862,  payment 
of  the  legal  fare  in  gold  or  the  value  thereof 
in  paper  currency,  is  guilty  of  extortion, 
and  is  liable  to  the  passenger  for  the  penalty 
of  fifty  dollars  provided  by  N.  Y.  Act  of  1857 
for  asking  and  receiving  a  greater  rate  of 
fare  than  that  allowed  by  law.  Ltwis  v. 
New  York  C.  R.  Co.,  49  Barb.  (N.  Y.)  330. 

Ohio  Act  of  April  2$,  1873,  amendatory  of 
section  13  of  the  Act  of  May  1, 1853  (70  Ohio 


I'  r^ 


1084 


TICKETS  AND  FARES,  138, 134. 


h 


iiii 


L.  i6i),  which  prohibits  any  corporation  op- 
erating a  railroad  in  the  state  from  demand- 
ing and  receiving  (or  the  transportation  of 
passengers  more  than  three  cents  per  mile, 
for  a  distance  of  more  than  eight  miles,  gives 
to  the  party  aggrieved  a  right  to  recover 
from  such  corporation  a  forfeiture  of  not 
less  than  twenty-five  dollars  for  each  case  of 
overcharge.  Pittsburgh,  C.  &*  St.  L.  R.  Co. 
v.Moort,  33  Ohio  St.  384.— Distinguishing 
Fisher  v.  New  York  C.  &  H.  R.  R.  Co.,  46 
N.  Y.  644. 

Ohio  Act  of  April  20,  1874  (71  Ohio  L. 
146),  giving  a  penalty  of  fisotothe  party 
aggrieved  by  an  overcharge  for  the  trans- 
portation of  passengers  or  property  made  by 
a  railroad  corporation,  is  not  in  contraven- 
tion of  the  Constitution.  Cincinnati,  S.  &* 
C.  K.  Co.  V.  Cook,  6  Am.  &»  Eng.  R.  Cat.  317, 
37  Ohio  St.  265. 

The  word  "  forfeit"  used  in  Tex.  Rev.  St. 
art.  4258,  providing  a  forfeiture  to  the  party 
injured  by  an  overcharge  on  a  passenger 
fare,  is  used  in  the  same  sense  as  "  penalty  "; 
therefore  a  suit  under  the  statute  is  a  suit 
to  recover  a  penalty.  Etttr  v.  Missouri 
Pac.  R.  Co.,  2  Tex.  App.  {Civ.  Cas.)  48. 

133.  Defenses— Evidence.— In  a  suit 
under  Ark.  Act  of  April  4,  1887,  regulating 
the  rates  of  charge  for  the  carriage  of  pas- 
sengers by  railroads,  a  voluntary  payment 
wilt  not  preclude  a  recovery  of  the  penalty 
for  an  overcharge.  St.  Louis  &*  S.  F,  R. 
Co.  V.  Gilt,  47  Am.  &•  Eng.  R.  Cas.  462,  $4 
Ark.  loi,  II  S.  W.  Rep.  18.—  FOLtOWED 
IN  St.  Louis  &  S.  F.  R.  Co.  v.  Ryan,  56 
Ark.  245. 

Under  the  above  act  a  person  who  has 
paid  several  overcharges  may  recover  the 
penalty  for  each  overcharge,  although  he 
went  upon  the  train  solely  for  the  purpose 
of  accumulating  penalties.  St.  Louis  &*  S. 
F.  R.  Co.  V.  Gill,  47  Am.  6-  Eng.  R.  Cas. 
462,  54  Ark.  loi,  155.  W.  Rep.  18. 

The  forfeiture  given  by  N.  Y.  Act  of  i8s7, 
ch.  185,  of  a  penalty  of  fifty  dollars,  together 
with  the  excess  of  fare  charged,  is  not  a  sat- 
isfaction for  the  injury  received,  but  to  stop 
the  practice.  Therefore  a  recovery  may 
be  had  by  one  who  has  paid  an  excessive 
fare,  though  he  was  riding  simply  for  the 
purpose  of  obtaining  the  penalty.  Fisher 
V.  New  York  C.  6*  ff.  R.  R  Co.,  46  N.  V. 
644.— Distinguished  in  Metropolitan  El. 
R.  Co.  V.  Manhattan  El.  R.  Co.,  15  Am.  & 
Eng.  R.  Cas.  t,  11  Daly  (N.  Y.)  373, 14  Abb. 
N.  Cas.  103.    Followed  in  Micks  v.  New 


York  C.  &  H.  R.  R.  Co.,  49  N.  Y.  654,  mem.; 
Casey  v.  New  York  C.  ft  H.  R.  R.  Co.,  49  N. 
Y.  675 ;  Barker  v.  New  York  C.  &  H.  R.  R. 
Co.,  61  N.  Y.655,  mem.;  Gere  v.  New  York 
C.  &  H.  R.  R.  Co..  19  Abb.  N.  Cas.  193. 

Where  a  statute  provides  for  the  con- 
struction and  operation  of  a  road,  and  for  a 
lease  thereof "  when  duly  formed  into  a  cor- 
poration under  and  pursuant  to  the  general 
railroad  law  of  the  state,"  the  company  can- 
not be  held  liable  for  a  penalty  prescribed 
by  the  general  law  for  collecting  more  than 
the  fixed  amount  of  fare,  unless  plaintiff 
shows  that  an  actual  corporation  was  formed 
under  the  general  law.  Palm  v.  New  York, 
N.  H.  &*  H.  R.  Co.,  35  A^.  Y.  S.  R.  457,  26 
/.  d-  S.  502.  12  ;v:  Y.  Supp.  554. 

134.  Amount  of  recovery.— A  mere 
threat  by  a  conductor  to  eject  a  passenger 
unless  he  shall  pay  a  small  amuunt  in  addi- 
tion to  the  regular  fare  because  not  provided 
with  a  ticket  does  not  entitle  him  to  puni- 
tive damages,  although  he  had  tried  to  pro- 
cure a  ticket  and  found  the  office  closed. 
Where  no  malice  or  wantonness  appears  on 
the  part  of  the  conductor  a  recovery  is 
limited  to  the  excess  over  the  regular  fare, 
with  interest.  Paine  v.  Chicago,  R.  I.  &*  P. 
R.  Co.,  45  Iowa  569. 

The  penalty  imposed  by  N.  Y.  Act  of 
1857,  ch.  185.  upon  carriers  for  exacting  a 
greater  fare  than  is  allowed  by  law  is  in- 
curred where  a  conductor  collects  more  than 
the  legal  fare  because  the  passenger  has  no 
ticket.  The  Act  of  1857,  ch.  228.  allows  a 
charge  of  five  cents  for  not  having  a  ticket 
only  when  the  company  has  its  ticket  office 
open  at  the  time  of  starting,  though  it  be 
midnight.  Chase  v.  New  York  C.  R.  Co.,  26 
A^.  Y.  533.  —  Distinguished  in  Swan  v. 
Manchester  &  L.  R.  Co..  6  Am.  &  Eng.  R. 
Cas.  327,  132  Mass.  116,  42  Am.  Rep.  432; 
Bordeaux  v.  Erie  R.  Co.,  8  Hun  (N.  Y.) 
S79.  Quoted  in  Moneypenny  v.  Sixth 
Ave.  R.  Co..  7  Robt.  (N.  Y.)  328.  4  Abb.  Pr. 
N.  S.  357.  35  How.  Pr.  452. 

Under  the  above  statute  only  one  penalty 
of  fifty  dollars,  together  with  the  excess  of 
fare,  can  be  recovered  for  all  acts  committed 
prior  to  the  time  of  beginning  the  suit, 
Fisher  v.  New  York  C.  6-  H.  R.  R.  Co.,  46 
N.  Y.  644.— Distinguished  in  Pittsburgh, 
C.  &  St.  L.  R.  Co.  V.  Moore,  33  Ohio  St. 
384.  Followed  in  Fritsche  v.  New  York 
C.  &  H.  R.  R.  Co.,  47  N.  Y.  660:  Lounsbury 
V.  New  York  C.  A  H.  R.  R.  Co.,  47  N.  Y. 
661 ;  Mix  V.  New  York  C.  R.  Co..  47  N.  Y. 


Y.  654,  mem.; 
R.  Co..  49  N. 
C.  &  H.  R.  R. 
1 V.  New  York 
r.  Cas.  193. 
for  the  con- 
road,  and  for  a 
med  into  a  cor- 
to  the  general 
company  can- 
alty  prescribed 
ting  more  than 
unless  plaintiff 
on  was  formed 
w  V.  New  York, 
S.  R.  4S7.  26 
554- 

rery. — A  mere 
:ct  a  passenger 
muunt  in  addi- 
ise  not  provided 
le  him  to  puni- 
lad  tried  to  pro- 
e  office  closed, 
ness  appears  on 
'  a  recovery  is 
:he  regular  fare. 
ct^o,  R.  I.  &*  P. 

r  N.  Y.  Act  of 
I  for  exacting  a 
:d  by  law  is  in- 
Hects  more  than 
tassenger  has  no 
:h.  228.  allows  a 
having  a  ticlcet 
I  its  ticket  office 
ig.  though  it  be 
ork  C.  It.  Co.,  26 
ED  IN  Swan  V. 
I  Am.  &  Eng.  R. 
!  Am.  Rep.  432 ; 
8  Hun  (N.  Y.) 
penny  v.  Sixth 
)  328. 4  Abb.  Pr. 

}nly  one  penalty 
th  the  excess  of 
acts  committed 
nning  the  suit. 
ff.  Jf.  R.  Co.,  46 
D  IN  Pittsburgh, 
}re.  33  Ohio  St. 
he  V.  New  York 
660;  Lounsbury 
t.  Co..  47  N.  Y. 
R.  Co.,  47  N.  Y. 


TICKETS  AND   FARES,  136,  136. 


1085 


678 ;  Foote  V.  New  York  C.  &  H.  R.  R.  Co.,  50 
N.  Y.  693.  Not  followed  in  State  ex  ret. 
V.  Kansas  City,  Ft.  S.  &  G.  R.  Co.,  32  Fed. 
Rep.  722.  Quoted  in  Parks  v.  Nashville, 
C.  &  St.  L.  R.  Co.,  tS  Am.  &  Eng.  R.  Cas. 
404,  13  Lea  (Tenn.)  i,  49  Am.  Rep.  655. 
Reviewed  in  Langdon  v.  New  York,  L.  E. 
ft  W.  R.  Co.,  29  N.  Y.  S.  R.  656. 

Where  a  statute  provides  a  penalty  of 
three  times  the  amount  of  an  excessive 
charge  collected,  a  carrier  is  only  liable  for 
an  excessive  charge  on  its  own  road,  and 
not  for  an  excessive  charge  on  goods  over  a 
connecting  road  from  which  it  received  the 
goods  and  to  which  it  advanced  the  charges. 
Streeter  v.  Chicago,  M.  &*  St.  P.  R.  Co.,  40 
W«.  294,  13  Am.  Ry.  Rep.  439. 

135.  Attorney's  fee.  — Ark.  Act  of 
April  4,  1887,  to  regulate  passenger  charges, 
provides  that,  for  an  overcharge  beyond  the 
maximum  fixed  by  the  act,  the  company  or 
person  operating  the  road  shall  forfeit  and 
pay  not  less  thun  $50  nor  more  than  $300, 
and  costs  of  suit,  including  a  reasonable 
attorney's  fee.  Held,  that  the  attorney's  fee 
is  a  part  of  the  penalty,  and  stands  upon  the 
same  footing  as  the  money  judgment  to  be 
recovered ;  and  including  it  as  part  of  the 
penalty  does  not  make  the  act  objectionable 
at  being  partial  or  unequal  legislation.  Dow 
V.  Beidelman,  31  Am.  &*  Eng;  R.  Cas.  14,  49 
^f*'  ASS'  5  ^'  ^'  R*P'  718* 

4.  English  Passenger  Fares. 
a.  In  General. 

136.  luterpretation  and  effect  of 
special  acts. — A  company,  by  its  act  of  in- 
corporation, was  authorized  to  make  a  rail- 
way to  be  worked  by  horse  power  only,  and 
also  a  railway  to  be  worked  in  the  ordinary 
way,  by  locomotive  steam  engines;  and  it 
was  enacted  that  the  maximum  rate  of 
charge  for  conveyance  on  the  railways,  in- 
cluding the  tolls  for  the  use  thereof,  and 
of  carriages,  and  for  locomotive  power  and 
every  other  expense  incidental  to  such  con- 
veyance, should  not  exceed  certain  amounts 
therein  mentioned.  Held,  that  the  railway 
to  be  worked  by  horse  power  was  subject  to 
this  enactment,  and  that  a  higher  charge 
could  not  be  made  in  respect  of  that  railway, 
although  such  higher  rate  might  be  reason- 
able, having  regard  to  the  increased  expense 
of  working  the  railway  by  horse  power. 
Buckfastltigh,  T.  &*  S.  D.  R.  Co.  v.  South 
Devon  R.  Co.,  i  Ry.  S*  C.  T,  Cat.  jat. 


A  company  (whose  act  contained  an 
equality  clause)  charged  a  smaller  fare  to 
passengers  who  traveled  from  D.  to  H.  in- 
tending to  proceed  from  H.  to  L.  by  an- 
other railway  than  it  charged  passengers 
from  D.  to  H.  who  had  no  such  intention. 
Held,  by  the  chancellor,  on  motion  for  an 
injunction,  that  the  equality  clause  was 
meant  only  to  prevent  the  exercise  of  a 
monopoly  to  the  prejudice  of  one  passenger 
or  carrier  and  in  favor  of  another,  and  that, 
even  if  he  had  jurisdiction  to  interfere,  he 
would  not  do  so  unless  it  was  clear  that  the 
public  interest  required  it ;  and  in  this  case, 
it  being  admitted  that  the  higher  charge 
was  not  more  than  the  act  authorized,  it 
did  not  appear  that  the  public  were  prej- 
udiced by  the  arrangement.  Attorney' 
General  v.  Birmingham  &*  D.  J.  R.  Co.,  Z 
Railw.  Cas.  124,  i  Ry.  &*  C.  T.  Cas.  18. 

The  W.  company,  by  its  original  act,  was 
authorized  to  charge  reasonable  rates  for 
the  conveyance  of  passengers.  By  a  sub- 
sequent act  it  was  empowered  to  extend  its 
line,  and  to  charge  a  lump  sum  for  carrying 
passengers  over  the  extension.  A  third  and 
later  act  allowed  it  to  amalgamate  with 
another  company,  provided  that  it  reduced 
its  charges  to  the  same  scale  as  that  of  the 
other  company,  which  scale  was  one  penny 
a  mile  for  each  third-class  passenger.  Plain- 
tiff traveled  over  the  line  of  W.  company 
with  a  third-class  ticket,  and  was  charged 
more  than  one  penny  a  mile.  In  the  course 
of  his  journey  he  traveled  over  the  exten- 
sion. The  W.  company  also  charged  the 
company  with  the  government  duty.  Held, 
that  the  W.  company  was  not  entitled  to 
charge  plaintiff  more  than  one  penny  per 
mile,  but  was  entitled  to  charge  him  with 
the  government  duty.  Brown  v.  Great 
Western  R.  Co.,  9  Am.  &*  Eng.  R.  Cas.  271, 
L.  R.  9  Q.  B.  D.  744.  S«  L.  J.  Q.  B.  D.  529, 
47  L.  T.  216,  30  W.  R.  f,7\,  4  Ry.  &*  C.  T. 
Cas.  xvii;  affirming  51  L.J.  Q.  B.  D.  156, 
4S  L.  T.  471,  30  IV.  R.  214. 

By  one  of  the  clauses  in  an  act  relating 
to  the  W.  company  it  was  forbidden  to  take 
tolls  unless  milestones  were  maintained 
along  the  line ;  and  another  act  relating  to 
the  company  incorporated  the  Railways 
Clauses  Consolidation  Act,  1845,  which,  in 
section  95,  contains  a  similar  provision. 
Held,  that  the  word  "  tolls  "  related  to  tolls 
properly  so  called,  and  did  not  extend  to 
charges  for  carrying  passengers  in  the  com« 
pany's  own  carriages.     Brown  v.    Grtai 


w^ 


1086 


TICKETS   AND    FARES,  137-141. 


I 


i;.; 


i!!  : 


\      i 


IVesterH  R.  Co.,  9  Am.  &*  Eng.  R.  Cas. 
271,  L.  Ji.  9  Q.  B.  D.  744,  51  L.  J.  Q,  B.  D. 
529,  47  L.  T.  216,  30  W.  R.  671,  4  Ky.  «S-  C. 
7*.  C<w.  xvii ;  affirming  51  Z./.  g.  B.  D.  156, 
45  Z.  T.  471.  30  fT.  J?.  214. 

137.  Cheap  Trains  Act.  —  The  pro- 
visions for  charges  for  fractions  of  a  mile 
contained  in  the  Cheap  Trains  Act,  1858, 
do  not  apply  to  third-class  passengers  by 
other  than  the  trains  run  in  pursuance  of 
the  act.  Brown  v.  Great  Western  R.  Co.,  9 
Am.  6*  Eng.  R.  Cas.  rj\,L.  R.  9  Q.  B.  D. 
744,  51  Z../  Q-  R-  D-  529.  47  L.  T.  216,  30 
jr.  ^.  671,  4  Ry.  &*  C.  T.  Cas.  xvii ;  affirm- 
ing  51  L.J.  Q.  B.  D.  156,  45  L.  T.  471,  30 
W.  R.  214. 

138.  Railway  and  Canal  Traffic 
Act.  —  The  mere  fact  that  railway  com- 
panies make  charges  for  the  conveyance  of 
passengers  in  excess  of  those  autliorized  by 
their  special  acts,  but  without  any  undue 
preference,  is  not  a  breach  of  their  obliga- 
tion, under  1 7  &  1 8  Vict.  c.  3 1 ,  §  2,  to  "  afford 
according  to  their  respective  powers  all 
reasonable  facilities  for  tlie  receiving  and 
forwarding  ivnd  delivering  of  traffic  upon 
and  from  the  several  railways  and  canals 
belonging  to  or  worked  by  such  companies 
respectively  and  for  the  return  of  carriages, 
trucks,  boats,  and  other  vehicles."  And  the 
railway  commissioners  have  no  jurisdiction 
to  grant  an  injunction  to  restrain  the  ftiaking 
of  such  excessive  charges.  Great  Western 
R.  Co.  v.  Railway  Com'rs,  2  Am.  &*  Eng.  R. 
Cas.  617,  L.  R.  7  Q.  B.  D.  182.— Explain- 
ing Aberdeen  Com.  Co.  v.  Great  North  of 
Scotland  R.  Co.,  3  N.  &  M.  205 ;  Pryce  v. 
Monmouthshire  C.  &  R.  Co.,  L.  R,  4  App. 
Cas.  197.  Quoting  South  Eastrrn  R.  Co. 
V.  Railway  Com'rs,  L.  R.  6  Q.  B.  D.  586. 

Upon  complaint  that  a  company  did  not 
afford  "  all  reasonable  facilities  "  within  the 
meaning  of  the  Railway  and  Canal  Traffic 
Act,  1854,  §  2,  because  it  charii^ed  passenger 
fascs  in  excess  of  the  sums  it  was  entitled 
to  demand  under  the  maximum  clause  of 
its  special  act — held,  by  the  court  of  appeal, 
affirming  the  judgment  of  the  queen's  bench 
division,  that  the  commissioners  had  no 
jurisdiction  to  entertain  the  complaint,  be- 
cause the  mere  fact  that  a  railway  charged 
beyond  the  maximum  sums  contained  in 
its  special  act  did  not  amount  to  a  refusal 
to  afford  "  reasonable  facilities."  Brown  v. 
Great  Western  R.  Co..  3  Ry.  *•  C.  T.  Cas.  523. 

130.  Rates  of  fare— Preferences.— 
A  special  act,  imposing  a  general  limit  of 


one  penny  a  mile  upon  the  charges  which  a 
company  may  make  for  third-class  passen- 
gers, in  effect  repeals  the  authority  given 
to  it  by  a  prior  special  act  to  charge  not 
more  than  two  shillings  for  the  five  miles 
next  to  its  terminal  station.  Brown  v. 
Great  Western  R.  Co.,  9  Am.  &*  Eng.  R. 
Cas.  271.  L.  R.  9  Q.  B.  D.  744.  51  L.  J.  Q. 
B.  D.  529,  47  Z.  T.  216,  30  W.  R.  671,  4  Ry. 
6-  C.  T.  Cas.  xvii ;  affirming  %\  L.J.  Q.  B. 
D.  156,  45  Z.  T.  471,  30  W.  R.  214. 

An  inequality  of  charge  does  not  con« 
stitute  an  undue  or  unreasonable  preference, 
unless  it  is  for  traveling  over  the  same  line 
or  the  same  portion  of  the  line.  Caterham 
R.  Co.  V.  London,  B.  &•  S.  C.  R.  Co.,  i  C.  B. 
N.  S.  410,  26  L.J.  C.  P.  161. 

The  court  refused  to  grant  an  injunction, 
on  the  complaint  of  a  company  having  a 
branch  on  a  trunk  line,  to  restrain  the  parent 
company  from  charging  higher  rates  for  the 
conveyance  of  passengers  to  the  complain- 
ants' terminus  than  it  charged  for  the  con- 
veyance of  passengers  to  tlie  terminus  of 
another  branch  line  (in  which  the  parent 
company  was  interested),  extending  over 
the  same  number  of  miles.  Caterham  R. 
Co.  v.  London  B.  &*  S.  C.  R.  Co.,  i  C.  B.  N. 
S.  410,  26  L.J.  C.  P.  161. 

A  company  fixed  the  rates  for  passengers 
traveling  between  the  termini  of  the  line 
according  to  a  much  lower  scale  than  the 
rates  exigible  from  passengers  traveling 
between  intermediate  stations.  Held,  that 
no  one  can  complain  of  such  proportional 
rating  unless  there  be  a  competition  of  in- 
terest, or  unless  the  complainer  set  forth 
personal  disadvantage  to  himself.  The 
mere  statement  that  the  complainer  has 
frequent  occasion  to  travel  upon  the  rail- 
way is  not  sufficient.  Hazier  v.  Caledonian 
R.  Co.,  1  Ry.  6-  C.  T.  Cas.  27. 

140.  Deductions  for  difference  in 
quality  of  service.— A  passenger  desir- 
ing to  use  an  ordinary  train  for  part  of  a 
journey,  for  which  he  has  taken  a  through 
ticket  entitling  him  to  travel  by  express,  is 
not  entitled  to  any  deduction  from  the 
through  fare  on  account  of  the  difference 
of  the  service.  Dublin  Steam  Packet  Co.  v. 
London  6-  N.  W.  R.  Co.,  4  Ry.  6*  C.  T. 
Cas.  10. 

141.  Recovery  for  excessive 
charges.  —  Defendant,  a  passenger  on 
plaintiff's  railway,  took  a  ticket  to  S.,  for 
which  he  paid  eight  shillings.  The  ticket 
conuined  a  condition  that  if  used  (or  any 


TICKETS  AND   FARES,  142. 


1087 


other  station  it  would  be  forfeited  and  the 
full  fare  charged.  He  alighted  at  F.,  a  sta* 
tion  thort  of  S.,  to  which  the  fare  was  nine 
shillings ;  he  then  took  a  ticicet  from  F.  to 
his  destination  on  a  branch  line,  but  did  not 
give  up  at  F.  the  ticicet  he  had  originally 
taken.  Plaintiff  brought  an  action  in  the 
county  court,  claiming  to  be  entitled  to  re> 
cover  nine  shillings,  the  full  fare  to  F.,  or 
one  r '  illing,  if  defendant  was  entitled  to  be 
credited  with  the  eight  shillings  paid  by 
him  for  his  original  ticket,  but  was  non- 
suited on  the  ground  that  it  was  suing  for  a 
penalty  which  was  only  recoverable  before 
justices.  Httd,  that  plaintiff  was  not  suing  to 
recover  a  penalty,  but  to  recover  a  fare  under 
the  contract ;  that  the  action  was  therefore 
maintainable  and  the  nonsuit  was  wrong. 
Great  Northtrn  R.  Co.  v.  Winder,  [1892]  2 
Q.  B.  595.  —  Distinguishing  London  & 
B.  R.  Co.  V.  Watson,  L.  R.  4  C.  P.  D.  118. 

142.  Crown  duties  on  fares  col- 
lected. —  By  s  &  6  Vict.  c.  79,  and  7  &  8 
Vict.  c.  85,  provision  is  made  for  exempting 
from  passenger  duty  cheap  traffic  or  parlia> 
mentary  trains.  Held,  that  trams,  to  be 
entitled  to  the  exemption,  must  stop  for  put- 
ting down  passengers  at  every  passenger  sta- 
tion passed  on  the  line.  Attorney'General 
v.  Oxford,  W.  &*  W.  R.  Co.,  31  L.  J.  Ex. 
218.  I  Ry.  &>  C.  T.  Cos.  21. 

Where  a  company  is  entitled  upon  pay- 
ment of  a  percentage  to  use  a  loop  line  be- 
longing to  another  company,  and  it  exercises 
its  powers  by  its  own  trains  and  servants, 
but  the  money  paid  at  the  stations  is 
collected  by  the  servants  of  the  company 
owning  the  line,  the  company  using  the  loop 
is  bound  to  keep  the  accounts  and  pay  the 
duty  required  by  5  &  6  Vict.  c.  79.  Great 
IVestern  R.  Co.  v.  Attorney-General,  L.  R.  i 
H.  L.  I,  12  Jur.  N.  S.  417,  35  L.  /.  Ex.  123, 
14  W.  R.  519,  14  Z.  T.  33. 

A  cheap  train  within  the  meaning  of  7  & 
8  Vict.  c.  85,  §  6  (the  fares  of  passengers  on 
which  are  exempt  from  the  payment  of 
duty),  must  be  a  train  carrying  third-class 
passengers  at  a  uniform  rate  of  one  penny  a 
mile,  both  for  the  whole  distance  between 
the  termini  and  for  the  intermediate  dis- 
tances between  one  station  and  another. 
North  London  R.  Co.  v.  Attorney-General,  45 
Z.  /.  Ex.  D.  31$,  L.  R.  I  App.  Cat.  148,  24 
W.  R.  852.  34  L.  T.  297 ;  affirming  43  L.  /. 
Ex.  223,  L.  R.  9  Ex.  330,  31  L.  T.  yn. 

And  must  stop  for  taking  up  and  setting 
down  passengers  at  every  station  between 


each  end  of  the  trunk,  branch,  or  junction 
line  on  which  it  travels.  North  London  R.  Co. 
v.  Attorney-General,  45  L.  J.  Ex.  D.  315,  L, 
R.  I  App.  Cas.  UH,  24  fV.  R.  852,  34  L.  T. 
297 ;  affirming^  43  L.  /.  Ex.  223,  L.  R.  9  Ex. 
330.  iiL.T.  377. 

The  power  of  the  board  of  trade  under  7 
&  8  Vict.  c.  85.  §  8,  of  dispensing  with  "  any 
of  the  conditions  hereinbefore  required 
with  regard  to  the  conveyance  of  passen- 
gers "  does  not  authorize  it  to  dispense 
with  the  requisites  constituting  a  cheap 
train,  within  the  meaningof  section  6  of  said 
act,  exempting  the  fares  of  passengers  on 
such  trains  from  the  payment  of  duty.  North 
London  R.  Co.  v.  Attorney-General,  45  L. 
J.  Ex.  D.  315.  L.  R.  I  App.  Cas.  148,  24  IV. 
R.  852,  34  L.  T.  297 ;  affirming  43  L.  J.  Ex. 
223,  L.  R.  9  Ex.  330,  31  £.  r.  377. 

Under  5  &  6  Vict.  c.  79,  §  2,  the  crown  is 
entitled  to  duty  on  the  whole  amount  re- 
ceived by  a  company  for  the  conveyance  of 
passengers,  although  such  amount  exceeds 
the  maximum  charge  for  conveyance  fixed 
by  the  company's  local  act.  Attorney-Gen- 
eral V.  London  &*  N.  W.  R.  Co.,  i  Am.  &• 
Eng.  R.  Cas.  578,  L.  R.  6  Q.  B.  D.  216,  50  £. 
/.  Q.  B.  D.  170,  44  L.  T.  236.  29  W.  R.  346, 
3  Ry.  5-  C.  T.  Cas.  xviii ;  affirming  L.  R.  5 
Ex.  D.  247,  49  L.  J.  Ex.  D.  670,  42  L.  T. 
395,  28  W.  R.  513. 

And  the  crown  is  entitled  to  claim  duty 
upon  sums  charged  by  a  company  to  passek^- 
gers  in  addition  to  the  ordinary  fare  'or 
sleeping-car  accommodations.  Attcrney- 
General  v.  London  &*  N.  W,  R.  Co..  1  Am. 
&*  Eng.  R.  Cas.  578,  L.  R.  6  Q.  B.  D.  216, 
so  L.J.  Q.  B.  D.  170,  44  L.  T.  236**29  W. 
R.  346,  3  Ry.  &*  C.  T.  Cas.  xviii ;  affirming 
L.  R.  5  Ex.  D.  247,  49  L.  J.  Ex.  D.  670,  42 
L.  T.  395.  28  W.  R.St3- 

Where  an  information  is  filed  in  equity  to 
recover  passenger  duty  on  a  company,  the 
question  in  dispute  being  whether  certain 
trains  were  cheap  trains  within  the  meaning 
of  the  act  exempting  from  duty  fares  for  the 
conveyance  of  passengers  at  rates  not  exceed- 
ing  one  penny  per  mile  by  cheap  trains,  an 
application  by  the  company  to  have  the 
evidence  taken  orally  should  be  granted. 
Attorney-General  v.  Metropolitan  Dist.  R. 
Co.,  L.  R.  5  Ex.  D.218,  42  L.  T.  342,  28  W. 
R.  376;  reversing  42  L.  T.  93. 

A  train  is  not  a  cheap  train  within  7  &  8 
Vict.  c.  85,  §  6,  exempting  from  passenger 
duty  fares  paid  on  cheap  trains,  if  third- 
class  passengers  are  charged  more  than  th« 


rfm 


1088 


TICKETS  AND   FARES,  143-145. 


]U 


liii'i 


i 


parliamentary    fare.    Attortuy'dntral   v. 
Mttr<^itan  R.  Co.,  50  L.J.  Q.  B.  D.  573. 

b.  Punifhment  and  Penalties  for  Failure 
to  Pay  Pare  or  Produce  Ticlcet. 

143.  Validity  and  effect  of  car- 
riers' by-laws*  generally.— A  company 
has  no  power  to  enact  a  by-law  in  pursuance 
of  8  &  9  Vict.  c.  20,  §  108,  punishing  pas- 
sengers for  evading  payment  of  fare,  in  the 
absence  of  any  intention  on  the  part  of  the 
passenger  to  defraud.  Btntham  v.  Hoylt, 
L.  R.  3  Q.  B.  D.  289,  47  L.J.  il/.  C  51, 37  L. 
T.  7S3.  26  W.  R.  314. 

A  by-law  of  a  company  providing  that  a 
passenger  traveling  without  a  ticket  shall 
be  required  to  pay  the  fare  from  the  station 
from  which  the  train  originally  started  is 
unreasonable  and  void  as  against  a  passen- 
ger who  has  in  good  faith  and  without  in- 
tention to  defraud  traveled  a  short  distance 
without  having  procured  a  ticket.  The  stat- 
ute 8  &  9  Vict.  c.  20,  §§  103.  109,  authorizei 
punishment  under  such  by-laws  only  where 
the  act  has  been  done  fraudulently.  London 
6*  B.  R.  Co.  V.  Watson,  L.  R.  4  C.  P.  D. 
118,  48  L.J.  C.  P.  D.  316,  40  L.  T.  183,  27 
W.  R.  614;  affirming  L.  R.  3  C.  P.  D.  429. 
47  L.J.  C.  P.  D.  634.  39  L.  T.  199.  26  W. 
R.  856. 

144. subjectlugr  passenger  to  a 

forfeiture—Under  8  &  9  Vict.  c.  20,  §  109, 
which  makes  a  fraudulent  intent  the  gist  of 
the  offense  of  traveling  without  having  paid 
the  fare,  a  by-law  of  a  company  is  illegal 
and  void  which  imposes  a  forfeiture  without 
regard  to  such  fraudulent  intent.  Deardtn 
V.  Townsend,  6  B.  &*  S.  86t,  L.  R.  i  Q.  B. 
10.  12  /ur.  N.  S.  120,  35  L.  J.  M.  C.  50,  14 
W.  R.  52.  13  L.  r.  323. 

A  by-law  of  a  company  requiring  passen- 
gers to  have  tickets  and  deliver  them  up 
when  required,  and  providing  that  any  pas- 
senger not  producing  or  delivering  up  his 
ticket  shall  be  required  to  pay  the  fare  from 
the  place  whence  the  train  originally  started 
or  forfeit  a  sum  not  exceeding  forty  shillings, 
only  applies  to  persons  wilfully  refusing  to 
produce  their  tickets  and  not  to  a  person 
traveling  without  having  obtained  a  ticket, 
but  with  no  intent  to  defraud  the  company. 
Deardtn  v.  Townsend.  d  B.  &•  S.  86t.  L.  R. 
I  Q.  B.  10. 12 /ur.  N.  S.  120.  35  L./.  M.  C. 
50,  14  W.  R.  J2,  13  L.  T.  323. 

146. subjecting  passenger  to  a 

penalty.- -Under  a  by-Jaw  of  a  company 


providing  that  any  person  traveling  witliout 
permission  "  in  a  carriage  or  by  a  train  of  a 
superior  class  to  that  for  which  his  ticket 
was  issued  is  hereby  made  subject  to  a 
penalty  not  exceeding  forty  shillings,  and 
shall,  in  addition,  be  liable  to  pay  his  fare 
according  to  the  class  of  carriage  in  which 
he  is  traveling  from  the  station  whence  the 
train  originally  started,  unless  he  shows 
that  he  had  no  intention  to  defraud,"  a  pas- 
senger cannot  be  convicted  where  he  is 
guilty  of  no  intention  to  defraud ;  the  words 
"  intention  to  defraud  "  apply  to  the  entire 
by-law.  Bentham  v.  Hoylt,  L.  R.  3  Q.  B.  D. 
289,  47  L.J.  M.  C.Si,  37  L.  T.  753,  26  W. 
R.  314. 

A  by-law  providing  that  "any  person 
traveling,  without  special  permission  of 
some  duly  authorized  servant  of  the  com- 
pany, in  a  carriage  or  by  a  t^ain  of  a  class 
superior  to  that  for  which  his  ticket  was 
issued  is  hereby  subject  to  a  penalty  net 
exceeding  forty  shillings,  and  shall,  in  addi- 
tion, be  liable  to  pay  his  fare  according  to 
the  class  of  carriage  in  which  he  is  travel- 
ing from  the  station  where  the  train  origi- 
nally started,  unless  he  shows  that  he  had  no 
intention  to  defraud,"  is  illegal  and  void. 
Dyson  v.  London  &*  N.  IV.  R.  Co.,  2  Am. 
6*  Eng.  R.  Cas.  629,  L.  R.  7  Q.B.  D.  32,  50 
L.  J.  M.  C.  78,  3  Ry.  &*  C.  T.  Cas.  xxiv.— 
Following  Dearden  v.  Townsend,  L.  R.  i 
Q.  B.  10;  Bentham  v.  Hoyle,  L.  R.  3  Q.  B. 
D.  289. 

The  statute  8  &  9  Vict.  c.  20,  §  103,  makes 
a  fraudulent  intention  the  gist  of  the  offense 
of  traveling  on  a  railway  without  having 
paid  the  fare,  and  a  by-law  of  a  railway 
company  subjecting  persona  committing 
such  offense  to  a  penalty  without  regard  to 
the  fraudulent  intention  is  void.  London 
&>  B.  R.  Co.  v.  Watson,  L.  R.  4  C.  P.  D.  118. 
48  L.J.  C.  P.  D.  316.  40  L.  T.  183,  27  W.  R. 
614;  affirming  L.  R.  3  C  P.  D.  429.  47  L.J. 
C.  P.  D.  634.  39  L.  T.  199.  26  W.  R.  856. 
Saunders  v.  South  Eastern  R.  Co.,  L.  R.  $ 
Q.  B.  D.  456.  49  L.  J.  Q.  B.  D.  761,  3  Ry. 
6*  C.  T.  Cas.  xxi,  43  L.  T.  281,  29  W.  R.  56. 
Dyson  v.  London  6*  A';  W.  R.  Co.,  2  Am.  S- 
Efig.  R.  Cas.  629,  L.  R.  7  Q.  B.  D.  32,  50  L. 
J.  M.  C.  78.  44  L.  T.  609,  29  W.  R.  565. 

Assuming  that  the  power  given  by  the 
Railways  Clauses  Consolidation  Act,  §  108, 
to  make  by-laws  for  "  regulating  the  travel- 
ing upon  or  using  and  working  the  railway." 
applies  to  persons  traveling  in  the  com- 
pany's carriages,  it  is  not  competent  for  the 


TICKETS  AND   FARES,  146-148. 


1089 


avelkig  wittiout 
r  by  a  train  of  a 
rhich  his  ticket 
e  subject  to  a 
y  shillings,  and 
to  pay  his  fare 
Triage  in  which 
ion  whence  the 
nless  he  shows 
defraud,"  a  pas- 
id  where  he  is 
raud ;  the  words 
ly  to  the  entire 
L  R.  3  Q.  B.  D. 
.  T.  753.  26  W. 

it  "any  person 
permission  of 
tnt  of  the  com« 
tk'ain  of  a  class 
his  ticket  was 
)  a  penalty  not 
id  shall,  in  addi- 
re  according  to 
ch  he  is  travel'* 
the  train  origi* 
rs  that  he  had  no 
I  legal  and  void. 
'.  R.  Co.,  2  Am. 
7Q.£.£>.32,so 
'.  T.  Cos.  xxiv. — 
twnsend,  L.  R.  i 
le,  L.  R.  3  Q.  B. 

.  20,  §  103,  makes 
;i8t  of  the  offense 
without  having 
aw  of  a  railway 
ons  committing 
ithout  regard  to 
is  void.  London 
t.^C.P.D.  118, 
T.  183.  27  W.  R. 
'.  D.  429,  47  L.J. 
)9.  26  W.  R.  856. 
I  R.  Co.,  L.  R.  $ 
B.  D.  761,  3  Ry. 
281.  29  W.  R.  $6. 
R.  Co.,  2  Am.  &* 
2-  B.  D.  32,  50  L. 
29  W.  R.  565. 
irer  given  by  the 
ation  Act,  §  108, 
lating  the  travel* 
<ing  the  railway," 
iig  in  the  com- 
ompetent  for  the 


company  by  a  by-law  to  make  the  refusal  to 
show  the  ticket  an  offense  in  the  absence  of 
a  fraudulent  intention.  The  by-law  was 
void  for  unreasonableness,  because  the  pen- 
alties  thereunder  for  offenses  of  equal  crim- 
inality would  vary  with  the  distance  from 
which  the  train  might  originally  have 
started  ;  and  it  was  inapplicable  to  the  case, 
as  the  power  to  make  by  laws  was  confined 
to  the  case  of  persons  traveling  on  the  rail- 
way, which  plaintiff  was  not  doing  when 
required  to  show  his  ticket.  Saunders  v. 
South  Eastern  R.  Co.,  L,  R.  5  Q.  B.  D.  456, 
49  L.  J.  Q.  B.  D.  761,  3  Ry.  <S-  C.  T.  Cas. 
xxi,  43  L.  T.  281.  29  W.  R.  56. 

The  by-law  was  void  for  unreasonable- 
ness because  the  penalty  for  not  showing 
the  ticket  varied  according  to  the  distance 
the  train  had  traveled,  and  also  because  the 
passenger  was  required  not  only  to  show 
his  ticket,  but  to  deliver  ii  up  whenever  re- 
quired for  any  purpose.  Saunders  v.  South 
Eastern  R.  Co.,  L.  R.  5  Q.  B.  D.  456.  49  L. 
J.  Q.  B.  D.  761,  3  Ry.  6*  C.  T.  Cas.  xxi.,  43 
L.  T.281,  29  tV.  R.  56. 

A  by-law  was  made  by  a  company,  under 
8  &  9  Vict.  c.  20,  that :  "  Any  person  travel- 
ing without  the  special  permission  of  some 
duly  authorized  servant  to  the  company 
in  a  carriage  or  by  a  train  of  a  superior 
class  to  that  for  which  his  ticket  was 
issued  is  hereby  subject  to  a  penalty  not 
exceeding  forty  shillings,  and  shall,  in  addi- 
tion, be  liable  to  pay  his  fare  according  to 
the  class  of  carriage  in  which  he  is  traveling 
from  the  station  where  the  train  originally 
started,  unless  he  shows  that  he  had  no  in- 
tention to  defraud."  Appellant  was  con- 
victed in  a  penalty  of  ten  shillings  under 
this  by-law  for  traveling  in  a  first-class  car- 
riage witli  only  a  second-class  ticket ;  but  it 
was  found  as  a  fact  that  he  had  no  intention 
to  defraud  the  company.  Held,  that  the  con- 
viction must  be  quashed,  for  without  decid- 
ing whether  the  by-law  did  or  did  not  make 
proof  of  the  absence  of  fraudulent  intention 
an  exemption  from  the  penalty  as  well  as 
from  the  extra  fare,  it  was,  if  it  made  the 
fraudulent  intention  immaterial  in  the  case 
of  the  penalty,  repugnant  to  8  Vict.  c.  20,  § 
103.  and  ultra  vires  the  company.  Bentham 
V.  Hoytt,  L.  R.  3  Q.  B.  D.  289,  47  L.  J.  M. 
C.  51.  See  Barny  v.  Midland  R.  Co.,  i  Ir. 
R.  C.  Z.  130,  3  Ry.  «*•  C.  T.  Cas.  xxi. 

A  by-law  of  a  company  provided  that 
"any  passenger  using  or  attempting  to  use 
a  ticket  on  any  day  for  which  such  ticket  is 
7  D.  R.  D.— 69 


not  available,  or  using  a  ticket  which  has 
been  already  used  on  a  previous  journey,  is 
hereby  subjected  to  a  penalty  not  exceeding 
forty  shillings."  Held,  that  the  by-law  was 
only  applicable  to  cases  where  an  attempt 
was  made  to  cheat  the  company,  and  that  it 
was  oppressive  to  prosecute  for  the  penalty 
when  there  was  no  such  attempt.  Thorn  v, 
Caledonian  R.  Co.,  14  Sess.  Cas.  {Just.  Cas.) 
5,  6  Ry.  &*  C.  T.  Cas.  Ixx. 

Where  a  company  sues  a  passenger  to  re- 
cover a  fare  and  not  a  penalty  the  action  is 
maintainable  in  the  county  court,  and  not 
before  the  justices,  and  a  nonsuit  by  the 
county  court  is  error.  Great  Northern  R. 
Co.  V.  Winder,  [1892]  2  g-  B.  595, 

146.  Refusal  to  produco  ticket.— 
A  passenger  who  has  no  intention  to  de- 
fraud is  not  liable  to  be  convicted  under  a 
by-law  requiring  passengers  to  show  and 
deliver  up  their  tickets  whenever  required, 
where  he  has  a  ticket  entitling  him  to  travel 
over  two  connecting  lines,  and  at  the  junc- 
tion, while  passing  from  one  station  to  the 
other  is  asked  to  show  his  ticket  and  re- 
fuses. Saunders  v.  South  Eastern  R.  Co., 
L.  R.  S  Q.  B.  D.  456,  49  L.  J.  Q.  B.  D.  761, 
43  L.  T.2Zi,  29  W.  R.  56,  3  Ry.  &*  C.  T. 
Cas.  xxi. 

147.  Couviction  of  traveling  vrlth 
intent  to  avoid  payment  of  fare.  — 
Where  a  passenger  produces  a  tourists 
return  ticket  originally  issued  to  another 
person  under  a  condition  that  it  is  not  trans- 
ferable, he  is  liable  to  be  convicted  under  8 
&  9  Vict.  c.  20,  §  103,  for  traveling  with- 
out having  previously  paid  his  fare  /ith  in- 
tent to  avoid  payment.  Langdon  v.  How- 
ells,  L.  R.  4  Q-  B.  D.  337.  48  L.  J.  M.  C. 
113,  40  L.  T.  880,  27  W.  R  657.  3  Ry.  6-  C. 
T.  Cas.  xxii. 

Where  a  passenger  with  intent  to  defraud 
travels  in  a  carriage  of  a  class  superior  to 
that  in  which  his  ticket  entitles  him  to 
travel,  he  is  liable  to  be  convicted  under  8 
&  9  Vict.  c.  20.  §  103,  for  traveling  with- 
out having  paid  his  fare.  Gillingham  v. 
Walker,  lA  L.  T.yi^.  29  W.  R.  896. 

148.  Enforcement  of  penalty  — 
Jurisdiction.  —  A  by-law  of  a  company 
requiring  passengers  traveling  without  a 
ticket  to  pay  their  fare  from  the  station 
whence  the  train  originally  started  does 
not  create  a  debt  recoverable  in  a  court  of 
civil  jurisdiction.  London  &*  B.  R.  Co.  v. 
Watson,  L.  R.  4  C.  P.  D.  iiS,  48  L.  J.  C.  P. 

D,  316,  io  Z.  r.  183,  a;  W.  R.  614. 3  Ry-  *• 


r^ 


1090 


TICKETS  AND   FARES,  149-102. 


IIS. 


W: 
■  (I, 


III  If, 


m 


P 


!' 
(1 


C.  T.  Cos,  XX.',  affirming  L.  Ji.  3  C.  P.  D. 
429, 47  L.J.  C.  P.  D.  634,  39  L.  T.  199,  26 
W.  R.  856. 

The  penalty  imposed  by  8  &  9  Vict.  c.  20, 
S  103,  upon  passengers  traveling  witli  intent 
to  avoid  payment  of  fare  is  not  subject  to 
the  procedure  for  the  recovery  of  civil 
debts  in  a  court  of  summary  jurisdiction 
prescribed  by  the  Summary  Jurisdiction 
Act,  1879,  S  3S.  R«.  V.  Paget,  L.  R.  8  Q.  B. 

D.  151,  51  L.J,  M.  C.  9,45  ^'  T.  794.  3° 
W.  R.  336. 

140.  Necessity  of  demand  for  fore. 
—Before  a  company  can  taice  proceedings 
under  a  by-law  against  passengers  traveling 
without  tickets,  requiring  such  passengers 
to  pay  the  fare  from  the  station  whence  the 
train  originally  started,  a  notice  of  demand 
for  the  fare  due  must  have  been  first  made 
to  the  passenger  who  refused  or  was  unable 
to  produce  his  ticket.  Brown  v.  Grtat 
Eastern  R.  Co.,  46  L.  J.  M.  C  231,  L.  R.  2 
Q.  B.  D.  406,  36  L.  T.  767,  25  W.  R.  792,  3 
JP/.  d*  C.  '^  O^i.  xxil. 


XT.  TIOKXT  BB0KEB8  AND  8CAIFEB8 

160.  Power  of  city  to  impose  li- 
cense tax. — A  city  may  impose  a  license 
tax  on  ticket  brokers  or  "  scalpers,"  under 
a  provision  in  its  charter  giving  to  it  power 
to  license,  tax,  and  regulate  certain  occupa- 
tions and  all  other  trades,  professions,  occu- 
pations,  and  callings  the  taxing  of  which  is 
not  regulated  by  the  Constitution.  Ht'rsh' 
fields.  Dallas,  4  Tex.  App.  (Civ.  Cas.)  259, 
IS  5.  W.  Rep.  124. 

Under  the  power  of  a  city  to  license,  tax, 
and  regulate  trades,  professions,  occupa- 
tions, and  callings,  a  city  may  impose  a 
reasonable  tax  for  revenue,  but  not  such  a 
tax  as  to  be  prohibitory.  So  where  a  city 
imposes  a  tax  of  I500  on  ticket  brokers, 
there  cannot  be  a  conviction  for  violation 
ol  the  ordinance,  if  the  uncontradicted  evi- 
dence shows  that  such  tax  was  prohibitory. 
Hirskfieldy.  Dallas,  4  Tex.  App.  {Civ. Cas.) 
aS9,  155.  W.  Rep.  124. 

15  A.  Bights  of  purchasers  of  Bcalp- 
era*  tickets.— Where  a  person  purchases 
a  ticket  from  a  dealer  outside  of  Pennsyl- 
vania who  is  not  an  authorized  agent  of  the 
company,  he  may  mamtain  an  action  in  the 
courts  of  the  state  against  the  company  for 
a  refusal  to  carry  him  on  said  ticket,  not- 
Wttbsttmding  the  provisions  of  Pa.  Act  of 


May  6,  1863  (P.  L.  582),  making  it  unlawful 
for  an  unauthorized  party  to  sell  railroad 
tickets  in  the  state.  Sleeper  v.  Pennsylvania 
R.  Co.,  9  Am.  &»  Eng.  R.  Cas.  291,  100  Pa. 
St.  259,  45  Am.  Rep.  380. 

Where  an  unauthorized  agent  of  another 
road  assures  the  purchaser  of  a  ticket  al- 
ready used  for  part  of  the  trip,  and  con- 
ditioned to  be  void  if  presented  by  any 
other  person  than  the  original  purchaser, 
that  the  ticket  will  be  honored,  and  gives  to 
the  purchaser  a  letter  to  the  conductors  of 
defendant  company,  and  relying  upon  these 
rep-esentations  he  buys  the  ticket  and  in- 
tends to  ride  on  it,  defendant  company  is 
in  no  way  bound  by  the  representations. 
Drummondv.  Southern  Pac.  Co.,  7  Utah  118, 
25  Pac.  Rep.  733. 

In  such  case  the  conductor  has  a  right  to 
take  up  the  ticket  when  not  presented  by 
the  original  purchaser,  and  the  holder  can- 
not claim  damages  because  the  ticket  is  not 
returned  to  him.  Drummond  v.  Southern 
Pae.  Co.,  7  Utah  118,  25  Pac.  Rep.  733. 

152.  Statutes  regulating  sales  of 
tickets. — A  statute  making  it  unlawful  for 
any  person  to  sell  a  railroad  or  steamboat 
ticket,  without  a  certificate  from  the  carrier, 
except  as  to  fractions  of  tickets  which  have 
been  bought  in  good  faith,  does  not  violate 
the  constitutional  provision  against  depriv- 
ing one  of  life,  liberty,  or  property  without 
due  process  of  law.  Burdick  v.  People,  149 
///.  600,  36  A';  E.  Rep.  948,  24  L.  R.  A.  152. 

The  regulation  of  the  sale  of  tickets  as 
above  is  not  a  regulation  of  commerce 
beyond  the  power  of  a  state  legislature,  but 
is  a  mere  police  regulation  of  a  public  em- 
ployment. Burdick  v.  People,  149  ///.  600,  36 
A^.  E.  Rep.  948,  24  L:R.  A.  152. 

And  such  a  statute  is  not  in  conflict  with 
that  provision  of  the  state  Constitution 
which  prohibits  the  legislature  from  pass- 
ing special  laws  granting  exclusive  privi- 
leges, immunities,  or  franchises.  Burdick 
v.  People,  149  ///.  600,  36  A^.  E.  Rep.  948,  24 
L.  R.  A.  1 52. 

Ind.  Act  of  March  9,  1875,  §  8  (i  Rev*  St 
1876,  p.  259),  regulating  the  issuing  and  tak- 
ing up  of  railroad  tickets,  exempts  from 
the  operation  of  its  provisions  all  special 
tickets,  whether  they  are  half-fare  or  excur- 
sion tickets,  or  special  in  any  other  respect. 
A  ticket  having  stamped  upon  its  face  the 
word  "  special "  is  prima  facie  exempt  from 
the  provisions  of  the  act.  State  v.  Fry,  6 
Am,  &*  Etfg,  R.  Cas.  340,  81  Ind.  7. 


TICKET  SCALPERS— TIME. 


1091 


ng  it  unlawful 

sell  railroad 

Pennsylvania 

r.  291,  100  Pa. 

ent  of  another 
of  a  ticket  al- 
trip,  and  con* 
ented  by  any 
nal  purchaser, 
d,  and  gives  to 
conductors  of 
ng  upon  these 
ticket  and  in- 
nt  company  is 
epresentations. 
:o.,7  Utah  iii, 

r  has  a  right  to 

presented  by 

he  holder  can« 

lie  ticket  is  not 

td  V.  Soutfurn 

Rep.  733. 

lug  sales  of 

it  unlawful  for 

or  steamboat 

i-om  the  carrier, 

ets  which  have 

toes  not  violate 

against  depriv* 

operty  without 

*  V.  People,  149 

\L.  R.  A.  152. 

e  of  tickets  as 

of   commerce 

legislature,  but 

>f  a  public  em- 

M49///.  600, 36 

152. 

in  conflict  with 
e  Constitution 
:ure  from  pass- 
ixclusive  privi- 
lises.  Burdick 
E.  Rep,  948,  24 

§  8  (I  Rev.  St. 
ssuing  and  tak> 

exempts  from 
ions  all  special 
f-fare  or  excur> 
r  other  respect. 
>on  its  face  the 
ie  exempt  from 
State  V.  Fry,  6 
Ind.  7. 


Minn.  Act  of  1893,  ch.  66,  entitled  "  An  act 
to  regulate  the  sale  and  redemption  of  trans- 
portation tickets  of  common  carriers,  and 
to  provide  punishment  for  the  violation  of 
the  same,"  is  not  unconstitutional  either  as 
class  legislation  or  as  granting  special  privi- 
leges to  carriers.  State  v.  Corbett,  57  Minn. 
343.  59  A'.  W.  Rep.  317.  24  L.  R.  A.  498. 

Neither  is  the  act  unconstitutional  as  a 
delegation  of  police  power  of  the  state  to 
grant  licenses  to  engage  in  the  business,  or 
as  an  interference  with  interstate  commerce; 
nor  does  the  act  deprive  the  citizen  of  his 
property  without  due  process  of  law,  at  least 
as  to  tickets  purchased  after  the  passage  of 
the  act.  State  v.  Corbett,  57  Minn.  345,  59 
A^.  W.  Rep.  317,  24  I-  K'  A.  498. 

Under  N.  Y.  Act  of  March  23,  i860,  pro- 
hibiting the  sale  of  passenger  tickets  except 
as  therein  provided,  an  indictment  must 
state  the  station  or  port  from  which  the 
passage  under  the  ticket  is  to  begin.  En- 
right  V.  People,  21  How.  Pr.  {N.  Y.)  383. 

A  statute  making  it  a  misdemeanor  for 
any  unauthorized  person  "to  sell  or  deal 
in  "  tickets  issued  by  a  railroad  company  is 
not  violated  by  the  sale  of  a  single  railroad 
ticket  by  a  person  not  a  dealer  in  such 
tickets.  Such  statute  relates  to  the  practice 
or  business  of  selling  railroad  tickets.  State 
v.  Rar  52  Am.  &*  Eng.  R.  Cat.  157,  109  N. 
Car.  736, 14  S.  E.  Rep.  83,  14  L.  R.  A.  529. 

Pa.  Act  of  May  6,  1863,  and  its  amend- 
ment of  April  10,  1872,  which  prohibit  the 
sale  of  tickets  except  by  the  agents  of  the 
companies,  and  make  a  violation  of  the  act 
a  misdemeanor,  are  constitutional.  State 
legislatures  have  the  right  to  pass  such  acts. 
Com.  V.  Wilson,  56  Am.  &*  Eng.  R.  Cas.  230, 
^4  Phila.  {Pa.)  384. 


Licenses  to  cut,  see  License,  1 1. 

On  public  lands,  see  Pitblic  Lands,  21-24. 

—  strip  taken,  company's  rights  relative  to, 
see  Eminent  Domain,  138. 

Opinion  of  witness  as  to  value  of,  see  Wit- 
nesses, 112. 


TICKET  8CALPEB8. 

Selling  at  reduced  rates  through,  see  Inter- 
state Commerce,  89. 
See  also  Tickets  and  Fares,  150-1S2. 

TIES. 
AdinistibiUt][  of  evidence  as  to  defects  in. 
see  Evidence,  03.. 


TIMBER. 
Amonnt  recoverable  for  injury  to,  by  fire,  see 

Fires,  343. 
Cut  on  land  taken,  or  adjoining  lands,  value 

of.  as  an  element  of  land  damages,  see 

Emimbnt  Domain,  728* 


TIME. 

As  essence  of  contract  to  locate  stations,  see 

Stations  and  Depots,  30. 
At  which  proceedings  to  condemn  land  may 

be  discontinued,  see  Eminent  Domain, 

000-071. 
Contract  to  deliver  goods  at  specified,  effect 

of,  see  Carriage  of  Merchandise,  413. 
Contributory  negligence  in  running  out  of. 

see  Employes,  Injuries  to,  381. 
Covered  by  exemption  from  taxation,  see 

Taxation,  161. 
Denial   of  relief  because  of  lapse  of,  see 

Equity,  7. 
During  which  excursion  ticket  is  good,  see 

Tickets  and  Fares,  75. 
office  must  be  open,  see  Tickets  and 

Fares,  27-20. 

—  —  trains  may  block  street,  ordinances 

limiting,  see    Streets    and    Highways, 
307. 
For  claiming  damages,  limitation  of.  see  Lim- 
itation OF  Liability,  23. 

—  completion  of  road,  fixing,  see  Elevated 

Railways,  14. 
forfeiture  for  failure  to  complete 

within,  see  Dissolution,  etc.,  4. 
power  to  take  lands  after  ex« 

piration  of,  see  Eminent  Domain,  74. 

—  construction  of  road  allowed  by  charter, 

see  Charters,  02. 

forfeiture    for  failure  to  begin 

within,  see  Dissolution,  etc,  3. 

—  payment  of  coupons,  see  Coupons,  8. 

—  sale  of  superfluous  lands  under  English 

statutes,  extension  of,  see  Eminent  Do- 
main, 1118. 

From  which  intere'>t  en  damages  should  be 
calculated,  se«  Damages,  110. 

should  be  C'/mputed,  see  Interest, 

11-14. 

In  which  notice  shall  be  given  or  suit 
brought,  see  Carriage  of  Merchan- 
dise, 485-400. 

to  Iproduce  ticket  before  expulsion  of 

passenger,  see  Ejection  or  Passen- 
gers, 21. 

prosecute  claims  against  govern- 
ment, see  Claims  against  United 
States,  15. 

Limited  by  statute  for  construction  of  road, 
ejectment  after  lapse  of.  see  Eminent  Do. 
main,  1018. 


I^' 


1093 


TIME. 


t 

.  i 

I    y 


Lost  of,  •■  an  element  of  damages,  lee  Car- 

■lAGB  OF  Passenkrrs,  028. 

— for  injury  to  employi, 

see  EmplovAs,  Injuries  to,  7fitf« 

—  —  damages  for,  see  Ejection  or  Pasibn> 

GRRS,   111. 

—  —  resulting  from   injuries,  measure  of 

damages  for,  see  Damagks,  74. 
Obligation  to  run  on,  see  Time-tablbs,  2*  8« 
Of  application  to  remove  cause,  see    Rb- 

MOVAi.  OF  Causrs,  44,  46. 

—  assessment,  interest  on  damages  from, 

see  Eminent  Domain,  701. 

—  completion  of  road,  condition  as  to,  in 

grant  of  right  to  use  street,  see  Streets 
AND  Highways,  02. 

construction  of  statutes  rela- 
tive to,  see  Statutes,  Ol . 

-~  delivery  of  baggage  to  carrier,  see  Bag- 
CAGB,  54. 

— goods  carried,  see  Express  Compa- 
nies, 43. 

—  demand  for  land  damages,  interest  from, 

see  Eminent  Domain,  700. 

—  deposit  of  land  damages,  notice  ot,  see 

Eminent  Domain,  302. 

—  expiration  of  limited  ticket,  see  Tickets 

and  Fares,  88-05. 

mileage  ticket,  stipulation  as  to, 

see  Tickets  and  Fares,  lOl. 

—  expulsion  of  passenger,  see  Ejection  of 

Passengers,  04-08. 

—  filing  maps,  plans,  etc.,  in  condemnation 

proceedings,  see  Eminent  Domain,  335. 

or  entry  of  award  or  verdict,  inter- 

est  on  land  damages  from,  see  Eminent 
Domain,  704. 

—  foreclosure  sale,  see  Mortgages,  243. 

—  giving  notice  of  condemnation  proceed- 

ing^, see  Eminent  Domain,  202. 

—  holding  election  of  directors,  see  Direct- 

ors, 8. 
judicial  sales,  see  Judicial  Sale,  1. 

—  injury  to   stock,  allegation  of,  see  Ani- 

mals, Injuries  to,  018. 

—  issuing    attachment,   see    Attachment, 

ETC.,  41. 

—  meeting  of  commissioners  to  assess  dam- 

ages, see  Eminent  Domain,  BOS, 
directors,  see  Directors,  etc,  10. 

—  payment  of  mortgage,  provisions  as  to, 

see  Mortgages,  80. 

—  performance  of  contract,  see  Contracts, 

72. 

—  permissive  occnpation,  ejectment   after 

expiration  of,  tee  Ejectment,  8. 

—  raising  objections  in  condemnation  pro- 

ceedings, see  Eminent  Domain,  841. 

•—  nceipt  of  goods  by  carrier,  averment  of, 

see  Cabkuob  or  Mbrchandmb,  788. 


Of  selection  of  right  of  way,  presomptiwu  of, 
from  grant,  see  Eminent  Domain,  200. 

—  service,  evidence  of,  to  show  incompe- 

tency, see  Fellow-servants,  480. 
of  process,  see  Process,  30. 

—  shipment,  limiting  damages  to  value  at, 

see  Carriage  of  Merchandise,  402. 

—  submission  of  special  questions  to  jury, 

see  Trial,  205. 

—  subscription,    necessity   of    preliminary 

payment  at,  see  Subscriptions  to  Stock, 
10,  17. 

—  taking  appeals,  see  Appeal  and  Error, 

180. 

effect  of  statute,  see  Municipal  and 

Local  Aid,  70. 

or  location  of  road,  interest  on  dam- 
ages from,  see  Eminent  Domain,  700. 

—  —  possession  by  company,   interest  on 

land  damages  from,  see  Eminent  Do- 
main, 705. 

—  trial,   computing  damages  to,  see  Ele- 

vated Railways,  130. 

—  view  by  jury,  see  Trial,  40. 

Other  than  that  of  accident,  admission  of 
evidence  of  condition  of  track  at,  see 
Evidence,  Ol. 

Over  which  inquiry  may  extend  on  assess- 
ment of  damages  by  jury,  see  Eminent 
Domain,  557. 

Presenting  ticket  after  time  to  travel  thereon 
has  expired,  see  Ejection  of  Passen- 
gers, 35. 

Presumption  of  payment  from  lapse  of,  see 
Payment,  8. 

of  land  damages  from  lapse  of,  see 

Eminent  Domain,  382. 

Right  to  limit  ticket  as  to,  see  Tickets  and 
Fares,  85. 

That  bill  of  lading  remains  in  force,  see  Bills 
OF  Lading,  52. 

To  answer  amended  pleading,  see  Plead- 
ing, 104. 

—  apply  for  certiorari  in  town  bonding  pro- 

ceedings, see  Municipal  and  Local  Aid, 
434. 

commissioners  to  assess  land  dam- 
ages, see  Eminent  Domain,  407. 

jury  to  assess  land  jamages,  see 

Eminent  Domain,  527. 

mandamus,  see  Municipal  and  Lo- 
cal Aid,  288. 

—  —  —  receiver,  see  Receivers,  20. 

—  file  answer  in  foreclosure,  extension  of, 

see  Mortgages,  108. 

—  inspect  and  repair  machinery  after  notice 

of  defect,  see  EMPLOVis,  Injuries  to, 
140,  147. 

—  institute  condemnation  proceedings,  see 

Eminent  Domain.  237. 


i-.i 


ireramptiwd  of, 

>OMAIN,  200. 

ihow  incompe- 
rs.  486. 
30. 

s  to  value  at, 

DISK,  402. 
itions  to  Jury, 

f    preliminary 
IONS  TO  Stock, 

AL  AND  Error, 

VIdnicipal  and 

erest  on  dam- 
omain,  too. 
y,    interest  on 
Eminent  Do- 

■  to, '  see  Elb- 

B. 

,  admission  of 
track  at,  see 

end  on  assess- 

y,  see  Eminent 

9  travel  thereon 

ION    OF    1'ASSEN- 

m  lapse  of,  see 

am  lapse  of,  see 

lee  Tickets  and 

force,  see  Bills 

ng,  see    Plead- 

rn  bondingfpro- 
and  Local  Aid, 

isess  land  dam- 

N,  407. 

I  jamages,  see 

[fCiPAL  and  Lo- 

ERS,  20. 

!,  extension  of, 

cry  after  notice 
s.  Injuries   to, 

roceedingfl,  see 


TIME  BOOK— TIME-TABLES,  1. 


1093 


To  make  calli  npon  stock,  see  Subscriptions 

TO  Stock,  60,  01. 
tender,  sec  Tender.  8. 

—  object  to  deposition,  see  Evidence,  250. 

evidence,  see  Trial,  53. 

report  of  commissioners  in  condem* 

nation  proceedings,  see  Emineni  Domain, 
812. 

verdict  oa  assessment  of  damages, 

see  Eminent  Domain,  820. 

—  plead,  see  Pleading,  40. 

—  prepare  instructions,  discretion  of  court 

as  to,  see  Appeal  and  Error,  25. 

—  produce  fare  before  expulsion  for  nonpay- 

ment, see  Ejection  op  Passengers,  17. 
ticket  or  tender  fare  to  prevent  ejec- 
tion from  train,  see  Ejection  of  Passen- 
gers, 47-51. 

—  start  passenger  train,  see  Carriage  o7 

Passengers,  110. 

—  sue  after  injury  to  employes,  limitation 

of,  see  Employes,  Injuries  to,  500. 

elevated  railway  company,  limitation 

of,  see  Elevated  Railways,  108,  100* 

limitations  of,  see  Limitations  of  Ac- 
tions. 

—  which  damages  to  abutting  owners  are  to 

be  computed,  see  Streets  and  High- 
ways, 203. 

What  lapse  of,  bars  action  for  causing  death, 
see  Death  by  Wrongful  Act,  102. 

When  a  statute  takes  effect,  see  Statutes,  5. 

—  dividends  are  payable,  see  Dividends,  6. 

—  relation  of  carrier  to  passenger  begins, 

see  Cakkiage  of  Passengers,  23-27. 

Within  which  passenger  must  call  for  bag- 
gage, see  Baggage,  00. 

road  must  be  built,  powers  of  commis- 
sioners as  to,  see  Rapid  Transit  Acts,  4. 

shall  be  completed,  limitation  of, 

see  Street  Railways,  82. 

to  appeal  in  condemnation  proceed- 
ings, see  Eminent  Domain,  037. 

foreclosure,  see  Mortgages 

300. 

— from  justice's  court,  see  Justice 

OF  THE  Peace,  13. 

build  branch  road,  see  Branch  and 

Lateral  Roads,  13. 

— new  road  in  place  of  highway 

used  by  railway,  see  Streets  and  High- 
ways, 107. 

road,  expiration  of,  see  Streets 

AND  Highways,  131. 

— complete  transit,  see  Carriage  of 

Live  Stock,  36-38. 

—  construct  roads,  see  Construction 

OF  Railways,  3. 

— street  railways,  see  Street  Rail- 
ways. 116-120. 


Within  which  to  fence,  see  Fences,  4&-51. 

*- file  mechanic's  lien,  see  Liens,  81. 

make  amendments,  see  Pleading, 

162. 
—  — an  award,  see  Arbitration  and 

Award,  lO. 
present  claim  for  loss,  stipulation 

as  to,  see  Bills  ok  Lauini;,  07. 
prosecute  criminally  for  causing 

death,  see  Death    by  Wrongful   Act. 

444. 
— redeem  from  mortgage,  see  Mort- 
gages. 314. 
repair  or  rebuild  fence,  see  Fences, 

87. 
ship  live  stock,  see   Carriage  of 

Live  Stock,  11-14. 
sue  for  damages  caused  by  fires, 

limitation  of,  see  Fires,  130. 
to  adjoining  owner,    s^e 

Eminent  Domain,  1002. 
— limitations  of,  in  contract,  see 

Carriage  of  Live  S  i  ock,  85. 
out  writ  of  error,  see  Eminsnv 

Domain,  005. 
-^  >— to    quiet    title,    see    Cloud   on 

Title.  4. 
With   reference    to  which    land    damagea 

should  be  estimated,  see   Eminent  Do- 
main- 458-405. 


TIME  BOOK 

Of  foreman,  admissibility  and  effect  of,  «» 
evidence,  ■««  Evidence,  250. 


TIHE-TABLES. 

Admissibility  and  effect  of,  as  evidence,  se« 
Evidence,  251. 

Duty  of  passenger  carrier  to  observe,  see 
Carriage  op  Passengers,  122. 

Liability  to  passenger  for  improper  arrange- 
ment of,  sea  Carriage  of  Passengers, 
200. 

1.  General  nature  and  effect.—  For 

the  convenience  and  safety  of  the  public, 
and  for  their  own  safety  and  transaction  of 
the  business  of  common  carriers,  railroads 
adopt  and  publish  time-tables,  giving  sclied- 
ules  of  times  of  arrival  and  departure  of  the 
diiTerent  trains  at  the  depots  at  which  they 
stop ;  and  these  schedules  constitute  an  in- 
vitation to  the  public  and  persons  desiring 
to  use  the  railroads  as  passengers  or  for 
business  to  be  there  at  such  times  of  arrival 
and  departure  of  trains,  and  also,  impliedly, 
within  a  reasonable  time  before  such  arrivals 
and  departures,  to  enable  persons  desiring 


rTT 


1094 


TIME-TABLES,  2. 


U  ? 


I 


f    •• 


m 


i 


'I 


pauage  to  avoid  hurry  and  confusion  in 
purchasing  tickets  and  getting  ready  to 
enter  the  cars.  Grimes  v.  PtHHsylvam'a 
Co.,  36  Fid.  R*p.  73. 

A  time-table  which  announces  that  it  is 
(or  the  government  and  information  of 
employes  only,  and  in  terms  reserves  to  the 
company  the  right  to  vary  therefrom  at 
pleasure,  and  which  bears  also  the  explana- 
tion as  to  the  stations  mentioned  in  it  that 
flag  stations  are  designated  by  a  star,  is  not 
of  itself  sufficient  evidence  to  show  that  a 
station  not  so  designated  on  it  had  been 
advertised  either  to  the  public  or  plaintiff 
as  a  regular  passenger  station.  Denver,  S. 
P.  6-  P.  R.  Co.  v.  Pickard,  18  Am.  6*  Eng. 
P.  Cas.  284,  8  Colo.  163,  6  Pac.  Pep.  149. 

A  baggage  master  is  not  presumed  to 
know  that  the  company's  schedules  for  run- 
ning trains  are  defective.  Georgia  P.  &•  B. 
Co.  v.  Rhodes,  56  Ga.  64;. 

When,  according  to  regular  schedule,  one 
train  is  to  arrive  at  a  given  point  thirteen 
minutes  before  the  time  fixed  for  another 
train  to  leave  that  point  daily  on  a  new  trip, 
such  point  is  a  terminus  as  to  the  latter 
train,  and  not  a  meeting  point  as  to  either ; 
especially  when  real  meeting  points  are 
plainly  designated  as  such  on  the  schedule, 
and  the  designation  is  omitted  in  respect 
to  the  point  in  question.  Georgia  P.  dr*  B. 
Co.  V.  McDade,  59  Ga.jy 

It  is  not  necessarily  negligence  to  run  a 
hand-car  over  a  railway  when  a  train  is  past 
due,  even  though  more  tnan  ordinary 
danger  is  incurred  thereby.  The  mea&ure 
of  care  required  must  be  estimated  witl:  a 
view  to  the  safety  of  the  employes  operating 
the  hand-car  and  of  the  passengers  upon 
the  train,  and  determined  by  the  facts  of 
each  particular  case.  Campbell  v.  Chicago, 
P.  I.  6-  P.  R.  Co.,4S  Iffwa  76. 

Railroad  corporations,  by  advertising  tne 
hours  when  trains  will  start,  agree  with 
liolders  of  tickets  that  trains  will  start  at 
the  hours  named ;  but  with  an  implied 
reservation  of  power  to  change  the  hours, 
upon  giving  reasonable  notice.  Sears  v. 
Eastern  P.  Co.,  14  Allen  {Mass.)  433. 

It  is  gross  negligence  in  a  company  so 
to  arrange  its  time-table  that  within  one 
minute  from  the  time  that  an  accommoda- 
tion train  is  to  leave  a  station  an  express 
train,  running  at  the  rate  of  thirty  miles  an 
hour  or  more,  is  due  at  the  same  place. 
GoHzales  v.  New  York  &*  H.  P.  Co.  39 
How.  Pr.  (N.  K.)  407. 


Conductors,  engineera,  and  other  train 
employ6s,  and  those  directly  connected 
with  the  management  of  trains,  are  bound 
to  know  the  times  when  trains  are  liable  to 
meet  or  to  pass  each  other,  or  to  pass 
stations;  and  it  is  their  duty,  if  trains  are 
out  of  time,  to  be  on  the  lookout  and  to 
give  seasonable  notice  to  each  other  of  any 
meeting  of  trains  out  of  time  or  place ;  and 
in  this  they  are  bound  to  exercise  the 
utmost  care  and  diligence.  Gonzales  v.  New 
York  &*  H.  P.  Co.,  39  Hew.  Pr.  (N.  Y.)  407. 

The  time-table  of  a  company,  which  on 
its  face  announces  that  it  is  for  the  govern- 
ment and  information  of  employ6s  only, 
and  in  terms  reserves  to  the  company  the 
right  to  vary  therefrom  at  pleasure,  is  not 
admissible  in  evidence  in  a  suit  for  damages 
against  the  company  for  not  stopping  the 
train  at  a  place  mentioned  in  the  time-table, 
but  at  which  no  station  was  ever  really 
established.  Beauchamp  v.  International 
&»  G.  N.  P.  Co.,  9  Am.  6-  Engi.  P.  Cas.  307, 
56  Tex,  239. 

Where  a  company  circulates  time-tables 
representing  that  there  is  a  train  to  a  par- 
ticular place  at  a  certain  time  on  a  connect- 
ing line,  which  carries  passengers  forward 
from  its  terminus,  knowing  such  represen- 
tation to  be  false,  it  is  liable  to  a  person 
who  sustains  damage  by  reason  of  havin):; 
made  arrangements  to  travel  on  the  faith 
of  such  representations.  Denton  v.  Great 
Northern  P.  Co.,  5  El.  6-  Bl.  860,  2/Mr.  A^. 
S.  185,  25  £./.(?.  ^.129. 

A  time-table  cannot  be  tr»ated  19  part  ut 
the  contract  between   "  ..y  and  its 

passengers,  but  amoun  presentation 

only.  Briggs  v.  Gran.  unk  P.  Co.,  24 
[/.  C.  Q.  P  ;;o. 

2.  Obligation  to  ki.Mi  on  i>  >lie(liilo 
time.*  —  Where  the  ofHcial  printed  sched- 
ule furnished  to  conductor,^  and  locomo- 
tive engineers  prescribes  a  gi  ren  hour  and 
minute  for  leaving  the  startii.;q;  termmus, 
and  no  provision  is  made  in  th*  rules  and 
regulations  for  starting  at  any  other  time, 
to  enter  on  the  trip  fifteen  minutes  after 
the  prescribed  time  has  expired  is  to  vary 
from  the  schedule ;  and  if  done  without 
express  authority  from  the  superintendent, 
or  the  proper  general  officer  of  the  road,  it 
is  a  breach  of  orders.  Georgia  R,  6*  B.  Co. 
v.  McDade,  59  Ca.  73. 

*  Obligation  of  company  to  run  trains  so  as 
to  arrive  and  depart  on  time  and  stop  at  sta- 
tions, see  note,  9  Au.  &  Eno.  R.  Cas.  314. 


TIME-TABLES.  8, 


1095 


d  other  train 
ly    connected 
ns,  are  bound 
s  are  liable  to 
r.  or  to  pass 
if  trains  are 
>olcout  and  to 
h  other  of  any 
or  place ;  and 
exercise  the 
onzaltt  V.  AVw 
V.{N.  r.)407. 
any,  which  on 
or  the  govern- 
mployds  only, 
company  the 
leasure,  is  not 
lit  for  damages 
t  stopping  the 
the  time-table, 
as  ever  really 
International 
»j5.  V?.  Cas.  307, 

tes  time-tables 
train  to  a  par- 
s  on  a  connect- 
engers  forward 
such  represen- 
le  to  a  person 
ison  of  having 
el  on  the  faith 
Benton  v.  Great 
860,  2jur.  N. 

■atet'   .s  part  ol 

.y  and  its 

presentation 

unk  R.  Co.,  24 

on  «  -hediilo 

printed  sched- 
'  and  locomo- 
;i  'en  hour  and 
tit.g  terminus, 
1  th*  rules  and 
ny  other  tmie, 

minutes  after 
ired  is  to  vary 

done  without 
uperintendent, 
of  the  road,  it 
ia  JR.  ^  B.  Co. 


un  trains  so  as 
nd  stop  at  sta> 
■•  Cas.  314. 


For  conductora  and  engineers  to  abide 
absolutely  and  invariably  by  the  schedules 
furnished  them  for  running  trains,  except 
when  clearly  and  expressly  authorized  to 
vary  therefrom,  is  of  the  last  importance  to 
both  life  and  property;  and  where  the 
printed  rules  which  accompany  the  sched- 
ules warn  both  classes  of  employes  tliat 
they  will  be  held  responsible  for  the  satis- 
factory running  ot  the  schedules,  an  engi- 
neer cannot  excuse  himself  for  commencing 
a  trip  fifteen  minutes  after  his  schedule 
time  hiij  expired  by  the  fact  that  he  acted 
under  orders  from  the  conductor.  The 
schedule  being  prescribed  by  their  common 
superior,  neitlier  can  absolve  the  other 
Ironi  his  obligation  to  observe  it.  Georgia 
A.  «S-  B.  Co,  v.  McDade,  59  Ga.  73. 

The  publication  of  a  time-table,  in  com- 
mon form,  imposes  upon  a  company  the 
obligation  to  use  due  care  and  skill  to  have 
the  trains  arrive  and  depart  at  the  precise 
moments  indicated  therein  ;  but  it  docs  not 
import  an  absolute  and  unconditional  en- 
gagement for  such  arrival  and  departure, 
and  does  not  make  the  company  liable  for 
want  of  punctuality  which  is  not  attribu- 
table to  its  negligence.  Gordon  v,  J/<i/;> 
Chester  &*  L.  R.  Co.,  52  A^.  //.  596.— yuoTiNO 
Denton  v.  Great  Northern  R.  Co.,  5  El.  «S  HI. 
860.  Reviewing  Hawcroftv.  Great  North- 
ern R.  Co.,  16  Jur.  196,  8  Eng.  L.  &  Eq.  362. 

A  company,  with  respect  to  its  employes, 
has  the  riglit  to  vary  from  the  regular  time- 
table in  running  its  trains ;  it  is  merely 
required  to  use  due  care  and  diligence  in 
notifying  employes  of  the  running  of  the 
train  upon  a  changed  time.  Slater  v. 
Jewett,  5  Atn.  &*  Eng.  R.  Cas.  515,  8$  A'.  Y. 
61,  39  Am.  Rep.  627. 

The  fact  that  a  company  states  on  its 
timetable  that  it  will  not  hold  itself  rc- 
cponsible  for  delay  or  for  consequences 
arising  therefrom  will  not  relieve  it  from 
liability  for  the  result  of  its  negligence  in 
not  starting  a  train.  Buckmaster  v.  Great 
Eastern  R.  Co.,  23  L.  T'.  471. 

3.  Failure  to  run  on  schedule  time. 
— (1)  State  decisions.  —  A  company  which 
fails  to  run  a  train  according  to  its  pub- 
lished schedule,  unless  prevented  by  some 
valid  reason,  is  liable  to  a  person  sustaining 
injury  from  such  failure  for  the  damages 
actually  sustained  by  him  as  the  direct  and 
necessary  result  thereof,  but  not  for  con- 
jectural or  unproved  damages.  Savannah, 
S.  &»  S.  X.  Co.  V.  Bonaud,  58  Ga.  180. 


If  the  houn  at  which  trains  will  start 
have  been  advertised  in  public  newspapers, 
it  is  not  giving  reasonable  notice  of  a 
change  of  the  hour  of  any  particular  train 
to  post  up  handbills  announcing  it  at  sta- 
tions and  in  the  cars;  and,  if  no  other  no- 
tice is  given,  one  who  has  bought  tickets, 
by  the  package,  in  advance,  and  in  accord- 
ance with  the  advertisement  has  presented 
himself  at  the  station  to  be  carried  before 
the  appointed  hour  for  a  train  to  start, 
without  knowledge  of  the  change,  may  re- 
cover dan. ages  for  the  injury  sustained  by 
him  from  the  delay.  And  the  railroad  can- 
not exonerate  itself  by  showing  a  usage  on 
its  part,  for  several  years,  to  make  occa- 
sional changes  in  the  hours  for  certain 
trains  to  start,  without  other  notice  thereof 
than  by  handbills.  Sears  v.  Eastern  R,  Co,, 
14  Allen  (.Mass.)  433. 

A  locomotive  engineer  is  not  bound,  at 
all  hazards,  to  comprehend  fully  all  the  re- 
sults of  changes  in  the  running  time  of 
trains  made  by  a  new  time-table,  and  is 
not  necessarily  guilty  of  negligence  in  run- 
ning his  train  contrary  to  the  rules  of  such 
time-table  on  the  first  trip  after  it  takes 
effect.  Nelson  v.  Chicago,  M.  &*  St.  P.  R. 
Co.,  22  A>n.  &>  Eng.  R.  Cas,  391,  60  IVis. 
320,  19  N.  IV.  Rep.  52. 

The  length  of  time  given  to  an  engineer 
to  examine  the  new  time-table,  his  recent 
severe  and  protracted  labors  upon  the  road, 
his  state  of  health  and  the  fact  that  he  had 
applied  to  be  relieved  from  duty  on  such 
trip,  the  previous  manner  of  running  trains, 
and  his  understanding  of  the  changes,  are 
all  pertinent  to  the  issue  of  negligence. 
Nelson  v.  Chicago,  M.  &*  St.  P.  R.  Co.,  23 
Am.  <S-  Eng.  R.  Cas.  391,  60  Wis.  320,  19  N. 
W.  Rep.  52. 

(2)  English  decisions. — Where  a  com- 
pany's trains  fail  to  connect  as  advertised, 
and  a  passenger  is  compelled  to  stay  over 
at  the  connecting  point  until  the  next  day, 
he  is  entitled  to  recover  his  hotel  expenses 
and  the  fare  the  next  day  to  his  destination, 
but  cannot  recover  for  any  damage  occa- 
sioned by  his  not  reaching  other  places 
by  the  time  he  might  have  reached  them 
if  the  company  had  performed  its  contract. 
Hamlin  v.  Great  Northern  R.  Co.,  i  H, 
&*  N.  408,  2  Jur.  N.  S.  1 1 22,  26  L. /. 
Ex.  20.  —  Followed  in  Le  Blanche  v. 
London  &  N.  W.  R.  Co.,  L.  R.  1  C.  P.  D. 
286.  45  L.  J.  C.  P.  D.  S2I.  34  L.  T.  667,  34 
W.  R.  808. 


jrTT 


1096 


TIME-TABLES,  4. 


I 


A  paisenger  taking  a  ticket  made  subject 
to  the  r^fulationt  stated  in  the  company's 
time-table?  cannot  recover  on  account  of 
detention  caused  by  the  lateness  of  another 
company's  train,  where  the  time-table  stated 
that  the  company  did  not  "  hold  itself  re- 
sponsible for  any  delay,  detention,  etc., 
arising  ofl  its  lines,  or  from  the  acts  or 
defaults  of  other  parties,  nor  for  the  cor- 
rectness of  the  times  over  other  lines  or 
companies."  Thompson  v.  Midland  K.  Co., 
34  L.  T.  34. 

Where  a  passenger  holds  a  ticket  marked 
"issued  subject  to  the  conditions  stated  on 
the  company's  time-bills,"  the  conditions  of 
the  time-bills  are  incorporated  in  his  con- 
tract with  the  company ;  and  if  such  condi- 
tions relieve  the  company  from  liability  for 
injury  arising  from  delay  unless  in  conse- 
quence of  the  wilful  misconduct  of  the 
company's  servants,  a  pr.ssenger  who  reaches 
his  destination  several  hours  after  the  adver- 
tised time  cannot  recover,  if  there  is  no  evi- 
dence of  the  company's  wilful  misconduct. 
Wooi^atev.  Great  Westtrn  R.  Co.,  $i  L.  T. 
826,  33  fV.  R.  428,  49/.  P.  196. 

A  company  is  liable  to  a  passenger  for 
damages  sustained  in  consequence  of  a 
train  not  running  as  advertised,  although 
the  company  had  given  notice  in  its  time- 
table that  it  would  not  guarantee  the  arrival 
or  departure  of  trains  at  the  time  stated. 
Denton  V.  Great  Northern  R.  Co.,  5  El.  &• 
SI.  860,  2/ur.  N.  S.  185,25  L./.  Q.  B.  I2y. 

Where  the  time-tables  of  a  company  con- 
tain a  condition  which  in  effeict  provides 
that  the  company  refuses  to  guarantee  the 
punctuality  of  its  trains  according  to  the 
time  mentioned,  such  condit-on  forms  a 
part  of  the  contract  with  a  passenger,  and 
no  recovery  can  be  had  for  expenses  to 
which  the  passenger  i.«  put  by  reason  of 
trains  failing  to  connect  as  provided  in  the 
time-table.  McCartan  v.  North-Eastern  R. 
Co.,l\L.J.  Q.B.  441. 

Plaintiff  took  a  ticket  from  B.  to  L.,  by 
a  train  which  was  advertised  to  arrive  at  L. 
at  10:10  P.M.  Between  B.  and  D.  the  train 
was  delayed  by  floods,  and  consequently 
failed  to  catch  the  correspo..ding  train 
from  D.  to  L.  On  arriving  at  D.  plaintiff 
found  that  no  other  train  would  go  to  L. 
that  night.  Plaintiff  claimed  damages  from 
the  company  for  breach  of  an  absolute  con- 
tract to  carry  from  B.  to  L.  on  the  day 
when  the  ticket  was  taken.  Held,  that  the 
company  had  only  contracted  to  use  due 


diligence  to  reach  D.  in  time  to  catch  the 
corresponding  train  to  L.,  and  that  as  it 
failed  to  do  so  from  unavoidable  causes,  it 
was  not  bound  to  forward  plaintiff  by  spe- 
cial train.  Fitzgerald  v.  Midland  R.  Co., 
34  £.  7*.  771,  3  Ry.  6-  C.  T.  Cas.  xxii. 

A  company  cannot  absolve  itself  from 
the  results  of  negligence  in  not  starting  a 
train  by  stating  on  the  time-tables  that  the 
company  will  not  "  hold  itself  responsible 
for  delay  or  any  consequences  arising  there- 
from." Buckmaster  V.  Great  Eastern  R.  Co., 
23  L.  y.  471,  3  Ry.  &*  C.  T.  Cas.  xxiv. 

4.  Reqnirenient  to  post  time  of 
arrival  of  trains.— Ind.  Act  of  March  9, 
1889,  which  provides  that  "every  corpora- 
tion, company,  or  person  operating  a  rail- 
road  within  this  state  "  shall  post  in  a  con- 
spicuous place  "  in  each  passenger  depot  of 
suc!i  company,  located  at  any  station  in  this 
state  at  which  there  is  a  telegraph  office,"  a 
blackboard  upon  which  "each  company  or 
person  shall  cause  to  be  written,"  at  lea.>t 
twenty  minutes  before  the  schedule  time 
for  the  arrival  of  each  passenger  train  stop- 
ping upon  such  route  at  each  station,  the 
fact  whether  such  train  is  on  schedule  time 
or  not,  and,  if  late,  how  much,  and  prescrib- 
ing penalties  for  the  violation  of  the  act,  is 
not  indefinite  and  inoperative  as  to  corpo- 
rations for  the  reason  that  the  word  "  cor- 
poration "  is  omitted  in  the  designation  of 
the  parties  required  to  make  the  specified 
statement  on  such  blackboard.  State  v. 
Indiana  S-  /.  S.  R.  Co.,  56  Am.  &*  Eng.  R. 
Cas.  254,  133  Ind.  69,  32  N.  E.  Rep.  817. 

Although  the  statute  is  awkwardly  ex- 
pressed, it  is  evident  that  it  is  intended 
that  a  board  shall  be  put  up  at  every  sta- 
tion where  trains  stop,  if  there  is  a  tele- 
graph office  at  such  stopping  place  op- 
erated in  connection  with  the  railroad,  re- 
ceiving and  giving  information  as  to  the 
time  of  the  arrival  and  departure  of  trains; 
the  word  "  station,"  as  used  in  the  statute, 
being  synonymous  with  "  passenger  depot." 
State  V.  Indiana  5-  /.  5.  R.  Co.,  56  Am.  &» 
Eng.  R.  Cas.  254,  133  Ind.  69,  32  N.  E. 
Rep.  817. 

The  statute  cannot  be  objected  to  as 
being  class  legislation,  for  the  reason  that  it 
only  applies  to  stations  where  there  is  a 
telegraph  office,  because  it  applies  to  all  of 
the  same  class  of  stations,  and  all  roads 
may  come  within  its  provisions.  State  v. 
Indiana  &*  I.  S.  R.  Co.,  56  Am.  &*  Eng.  R. 
Cas.  254,  133  Ind.  69,  32  A^.  E.  Rep.  817. 


I, 


TIME-TABLES,  6.— TITLE. 


1097 


:o  catch  the 
d  that  as  it 
le  causes,  it 
ntiff  by  spe- 
^and  Ji.  Co., 
t,  xzii. 

itself  from 
It  starting  a 
>lesthat  the 

responsible 
rising  there- 
\sttrH  /'.  Co., 
f.  xxiv. 
t  time  of 
of  \farch  9, 
:ry  corpora* 
sting  a  raiU 
>st  in  a  con- 
ger depot  of 
ation  in  this 
ph  office,"  a 
company  or 
:n,"  at  lea-jt 
liedulc  time 
r  train  stop- 
station,  the 
hedule  time 
ind  prescribe 
>f  the  act,  is 
as  to  corpo- 
word  "cor- 
signation  of 
he  specified 
1.  Sfatt  V. 
.  &*  Eng.  R. 
?<•/.  817. 
kwardly  ex- 
is  intended 
t  every  sta- 
re is  a  tele- 
;  place  op- 
railroad,  re- 
n  as  to  the 
re  of  trains ; 
the  statute, 
(iger  depot." 
,  56  Am.  &* 
I,  32  JV.  E. 

tcted  to  as 
eason  that  it 
e  there  is  a 
lies  to  all  of 
id  all  roads 
IS.  State  V. 
.  *•  Eng.  R. 
'ep.  817. 


The  statute  is  not  invalid  as  attempting 
to  regulate  interstate  commerce  from  the 
mere  fact  that  railroad  companies  to  wliich 
its  provisions  are  applicable  may  operate  a 
line  of  railroad  crossing  the  state  bound- 
aries, where  such  companies  are  only 
required  by  the  laws  to  bring  into  use 
knowledge  which  they  may  have,  or  which 
is  possessed  bv  their  servants  situate  in  an- 
other state.  'jA  to  the  time  of  the  arrival  and 
departure  of  trains.  Stat*  v.  Indiana  &*  I. 
S.  R.  Co.,  56  Am.  &»  Eng.  R.  Cat.  254,  133 
Indtq,  32  A^.  E.  Rep.  817. 

6.  Penalty  for  violation  of  such  re- 
quirement.—Ind.  Act  of  March  9,  1889, 
provides  a  penalty  "for  each  violation  of 
the  provision  of  this  act,  in  failing  to  report 
or  in  making  a  false  report,"  such  penalty 
to  be  recovered  in  a  civil  action,  one  half  of 
which  shall  go  to  the  prosecuting  attorney  of 
the  county,  and  the  remainder  to  the  com- 
mon-school fund  of  the  county.  Held,  that, 
although  no  penalty  was  imposed  for  fail- 
ure to  provide  the  blackboard,  a  company 
could  not  avoid  the  penalty  for  failure  to 
make  the  required  report  on  the  ground 
that  it  was  not  compelled  to  hang  a  black- 
board, and  therefore  had  no  means  of  giving 
the  required  information,  since  it  was  the 
duty  of  the  corporation  to  furnish  the  proper 
means  of  observing  the  statute.  State  v. 
Indiana  &*  I.  S.  R.  Co.,  56  Am.  &»  Eng.  R. 
Cas.  2S4,  133  Ind.  69,  32  A';  E.  Rep.  817. 

The  provision  of  the  Constitution  declar- 
ing that  the  common-school  fund  shall  be 
derived  from,  among  other  things,  "the  fines 
assessed  from  breaches  of  the  penal  law  of 
the  state,  and  irom  all  forfeitures  which  may 
accrue,"  does  not  contravene  the  provision  of 
the  statute  apportioning  the  penalty  between 
the  prosecuting  attorney  and  the  school 
fund,  since  the  Constitution  has  reference  to 
fines  assessed  in  criminal  proceedings  only. 
State  V.  Indiana  &•  I.  S.  R.  Co.,  $6  Am.  &* 
Eng.  R.  Cas.  254,  133  Ind.  69,  32  N,  E. 
Rep.  817. 

It  is  not  a  valid  objection  to  the  statute 
that  it  gives  to  the  prosecuting  attorney  an 
interest  in  the  amount  recovered.  State  v. 
Indiana  &*  I.  S.  R.  Co.,  56  Am.  5*  Eng.  R. 
Cat.  254,  133  Ind.  69,  32  A'.  E.  Refi.  817. 

The  statute  does  not  limit  the  liability  of 
a  company  to  a  single  penalty  for  a  viola* 
tions  of  its  provisions :  but  a  separate  pen- 
alty may  be  recovered  in  regard  to  each 
train  stopping  at  each  station  during  each 
trip,  either  for  failure  to  make  the  entry  or 


for  making  a  false  entry.  Stai*  v.  iHdiemm 
6*  I.  S.  R.  Co.,  $6  Am.  &*  Eng.  R.  Cat,  3S4, 
133  Ind.  69,  32  AT.  E.  Rep.  817. 

TITLE. 

Bills  of  lading  considered  as  monlmeiitt  o( 
see  Bills  of  Lading,  60-61. 

Burden  of  proof  on  owner  to  show,  see  Emi- 
nent Domain,  309. 

plaintiff  to  show,  see  Firbs,  278. 

Carrier  cannot  convey,  see  Carriage  op  Mxr* 

CHANDISE,  314. 

Claim  of  -  '>!or  of,  as  a  defense  in  ejectment, 
see  ;  'Ectment,  20. 

Color  of,  .-.ee  Adverse  Possession,  5. 

Conclusiveness  of  judgments  on  questions  of, 
see  Iudgment,  19. 

Costs  where  title  to  land  is  in  dispute,  see 
Elevated  Railways,  108. 

Effect  of  judgment  In  condemnation  proceed- 
ings to  pass,  see  Eminent  Domain,  840. 

trover  to  pass,  see  Trover,  20. 

to  pass,   see     Eminent    Domain, 

1000. 

payment  of  land  damages  into  court  to 

divest,  see  Eminent  Domain,  400. 

Evidence  to  prove  or  disprove,  on  assess- 
ment of  damages  by  jury,  see  Eminent 
Domain,  601,502. 

Hostile  claim  of,  see  Adverse  Possession,  4. 

In  defendant  as  a  defense  in  ejectment,  see 
Ejectment,  17. 

Infirmity  of  plaintiff,  as  a  defense  in  eject- 
ment, see  Ejectment,  18. 

In  plaintiff,  what  necessary  to  support  eject- 
ment, see  Eminent  Domain,  1024. 

—  third  person  as  a  defense  in  ejectment,  see 

Ejectment,  10. 
Jury  not  to  pass  on  question  of.  see  Eminent 

Domain,  1 180. 
Necessary  in  plaintiff  to  maintain  trespass, 

see  Eminent  Domain,  1003. 
Necessity  of  payment  to  the  passing  of,  see 

Eminent  Domain,  852. 
Of  company  to  lands  purchased  under  Eng 

lish  compulsory  purchase  laws,  see  Emi- 
nent Domain,  1100. 
right  of  way,  see  Right  op  Way, 

2,3. 

—  goods  sold  by  carrier,  see  Carriage  op 

Merchandise,  102,  103. 

—  land  condemned  not  to  be  considered  by 

jury  on  question  of  damages,  see  Emi- 
nent Domain,  553. 

—  landowner  in  right  of  way,  see  Right  op 

Way,  12. 

—  plaintiff  to  property  burned,  evidence  to 

show,  see  Fires,  201. 

—  —  what  necessary  to  maintain  ejectment, 
see  Ejectment,  14. 


rf :  ' 


1098 


TOLL  BRIDGES— TOO^S. 


Of  property  burned,  weight  of  evidence  to 
show,  see  Fires.  243« 

—  purchaser  from  «  purchwer,  see  Execu- 

tion, 29. 

—  —  of  railway  aid  bonda,  tee  Municipal 

AND  Local  Aid,  351-376. 

—  receivers,  see  Rbceivers,  30. 

—  —  in  foreclosure,  see  Mortgages,  220. 

—  shipper,  carrier  cannot  dispute,  see  Car* 

RiAGBOF  Merchandise,  220,  711. 

—  state  to  land  granted,  before  surrey,  sec 

Land  Grants,  12. 

navigable   waters,    see   Riparian 

Rights,  1. 

—  statute,  inconsistency  between  statute 

and,  see  Animals,  Injuries  to,  4. 

• subjects  not  expressed  in,  see  Stat- 
utes, 34. 

Person  paying  taxes  under  mistake  as  to, 
right  of,  to  land  damages,  see  Eminent 
Domain,  446. 

Proof  of,  and  of  transfer  of  stock,  see  Stock, 
72. 

—  —  in  action  for  damages  for  interference 

with  property,  see  Eminent  Domain, 
1000. 

Purchase  of  stock  from  one  not  having,  see 
Stock,  77. 

Remaining  in  landowner  after  deed  of  right 
of  way,  see  Eminent  Domain,  200. 

Subject  of  act  to  be  embraced  in,  see  Ani* 
MAi.s,  Injuries  to,  5 ;  Charters,  3. 

Sufficiency  of  evidence  of,  see  Eminent  Do- 
main, 370. 

—  —  to  support  actions  against  carriers,  see 

Carriage  or  Merchandise,  720. 
To  bed  of  navigable  stream,  see  Riparian 
Rights,  3. 

—  buildings  on  right  of  way,  see  Eminent 

Domain,  145. 

—  flats  and  land  under  water,  see  Riparian 

Ricins,  4. 

—  goods,  as  affected  by  notice  of  arrival,  see 

Carriage  of  Merchandise.  234. 

—  indemnity  lands,  when  passes  to  railroad, 

see  Land  Grants,  51-50. 

—  lands,  effect  of  consolidation  upon,  see 

Consolidation,  35. 

—  —  taken,  averment  as  to,  in  petition,  see 

Eminent  Domain,  322. 

—  materials,  effect  of  engineer's  certificate 

to  pass,  see  Construction  op  Railways, 
61. 

—  minerals  under  land  condemned,  see  Emi- 

nent Domain,  140. 

—  property  found  in  car,  see   Conductor, 

14. 

—  shares,  necessity  of  entry  of  transfer  to 

pass,  see  Stock.  82. 

—  itock,  evidence  of,  sec  Si-ock,  1. 


To  timber  on  the  public  lands,  sec  Public 

Lands,  21. 
Transfer  book  as  evidence  of,  see  Stock,  84. 
Trespass  to  try,  see  Trespass,  20. 
What  acquired  by  condemnation  of  land,  see 

Eminent  Domain,  128-132. 

—  necessary  in  order  to  maintain  trespass, 

see  Trespass.  O. 

plaintiff  to    support   trover,    see 

Trover,  5. 

—  passes  by  deed  of  right  of  way,  see  Emi- 

nent Domain,  203. 
land  grant,  see  Land  Grants,  03* 

72,  73,  84,  93. 

mortgage,  see  Mortgages,  75. 

on  sale  by  receiver,  see    Receivers, 

112. 

of  stock,  see  Stock,  55. 

to  purchaser  at  foreclosure  sale,  see 

Mortgages,  252-259. 

—  vests,    under    land    grants,    see     Land 

Grants,  5. 
When  passes  on  sale,  see  Sales,  8. 


TOLL  BRIDGES. 

Erection  and  use  of,  see  Bridges,  etc,  89- 
104. 


TOLLS. 

Charging,  on  navigable  streams,  see  Waters 
and  Water-courses,  7. 

Collection  of,  by  distress,  see  Distress,  2. 

General  power  to  take,  only  authorizes  rea- 
sonable charges,  see  Charges,  24. 

How  described  in  pleading,  see  Charges,  84. 

On  canals,  see  Canals,  O,  7. 

—  ferries,  see  Ferries,  8. 

—  turnpikes,  see  Turnpikes,  5. 
Regulation  of,  by  statute,  see  Bridges,  etc., 

94. 
Right    of    embankment    company    to,  see 
Charges,  128. 

—  to  collect,  see  Bridges,  etc.,  98-100. 

mortgage,  see  Mor igages,  30. 

When  passed  by  deed  of  trust,  see  Deeds  or 

Trust,  O. 

—  subject  to  taxation,  see  Taxation,  98. 

See  also  Charges. 


TONNAGE  TAXES. 

Validity  of,  under  interstate  commerce  act, 
see  Interstate  Commerce,  200. 


TOOLS. 

Alleging  negligence  in  furnishing  defective, 
see  EMPi.ovis,  Injuries  to,  524-531. 

Contributory  negligence  in  the  manner  of 
using,  see  EmplovAs,  Injuries  to.  851* 


,  see  Public 

e  Stock,  84. 

!0. 

n  of  land,  see 

2. 

ain  trespass, 

trover,    see 
way,  see  Emi- 
grants, 03f 

AGES,  75. 

le    Receivers, 

5S. 

sure  sale,  see 

s,    see    Land 

:s,  8. 

B. 

GES,  ETC.,  80- 


ns,  see  Waiers 

Distress,  2. 
authorizes  rea- 

RGES,  24. 

e  Charges,  84. 


5. 

:  Bridges,  etc., 

tnpany    to,  see 

c,  08-100. 

ses,  30. 

It,  see  Deeds  or 

IXATION,  08. 


KE8. 

commerce  act, 
E,  200. 


shing  defectiTe, 
3,  024-531. 
the  manner  of 
dribs  TO.  351* 


TORPEDOES— TOWNS. 


1099 


Duty  to  instmct  employi  npon  change  of,  see 
EMPLovfis,  Injuries  to,  34. 

infant  employi  respecting,  see  Em> 

PLOYfis,  Injuries  to,  463. 

Of  mechanics,  when  may  be  carried  as  bag- 
gage, see  Baggage,  43* 

TORPEDOES. 

Left  on  track,  liability  for  injuries  to  children 
caused  by,  see  Children,  Injuries  to,  8« 

Liability  for  use  of,  see  Explosions,  2. 

On  track,  liability  to  trespassers  In  cases  of, 
see  Trespassers,  Injuries  to,  79. 

Placed  on  track  by  agent,  liability  of  com- 
pany, see  Agency,  lOl* 


TORTFEASORS. 

Release  by  one  of  two  or  more,  see  Rklrasb, 

lO. 
—  to  one  of  two  or  more,  see  Release,  27« 


TORTS. 


Action  in,  for  expulsion  of  passenger,  see 
Ejection  of  Passengers,  72. 

Application  of  doctrine  of  ultra  Tires  to,  see 
Ultra  Vires.  27,  28. 

Assignability  of  causes  of  action  in,  see  As- 
signment, 3. 

By  independent  contractors  or  their  senr- 
ants,  liability  for,  see  Independent  Con- 
tractors,  5-28. 

Committed  before  receiver's  appointment, 
action  for,  see  Receivers,  143. 

Competency  of  eTJdence  in  actions  for,  see 
Evidence,  26-07. 

In  another  state,  remedy  for,  see  Attach- 
ment, etc  ,  3. 

Interest  on  damages  in  actions  for,  see  Dam- 
ages, 108. 

Liability  of  corporations  for,  see  Corpora- 
tions, 14-16. 

not  enforceable  against  stock- 
holders, see  Stockholders,  45. 

elevated  railways  for,  see  Elevated 

Railways,  100-222. 

—  —  new  corporation  for  torts  of  old  com- 

pany, see  Reorganization,  1 4. 

—  —  receiver  for,  sec  Receivers,  70-73. 
Measure  of  damages  in  actions  for,  gener- 
ally, see  Damages,  04-74. 

Of  agents,  liabilities  of  principal  for.  see 
Agency,  71-105. 

—  employes,     protection     of     passengers 

against,    see   Carriage  of  Passengers, 
805-312. 

—  lessee,  liability  of  lessor  lor,  see  Leases, 

■TC,  41. 

—  Itstor,  liability  of  lessee  for,  see  Leases, 

BTC,60> 


Of  original  companies,  liability  of  consoli- 
dated company  for,  see  Consolida- 
tion, 46. 

—  receiver's  servants,  liability  of  company 

for,  see  Receivers,  180-183. 

—  selling  company,  liability  of  purchaser 

for.  see  Sales  of  Railroads,  16. 

—  station  agents,  liability  of  company  for. 

see  Station  Agents,  O. 

—  superintendent,  when  bind  company,  see 

Superintendent,  3. 

Right  to  damages  for,  generally,  see  Dam- 
ages, 2,  3. 

interest  on  judgments  for,  see  Inter- 
est, 5. 

Statement  of  cause  of  action  in  suits  for,  see 
Pleading,  20-30. 

Sufficiency  of  evidence  in  actions  for,  see 
Evidence,  280-280. 

What  actions  sound  in,  see  Actions,  O. 

When  limitation  begins  to  run  in  actions  for, 
see  Limitations  of  Actions,  25. 
See  also  False  Imprisonment  ;  Trespass. 


TOWNS. 

As  parties  to  condemnation  proceedings,  see 

Eminent  Domain,  272. 
Duty   of,  to  repair  bridges,  see    Bridges. 

ETC..  36. 

towards  travelers  where  highway  is 

obstructed,  see  Streets  and  High- 
ways, 406. 

—  to  fence  track  in,  see  Animals,  Injuries 

TO,  00 ;  Fences,  63-56. 

Injuries  at  crossings  in,  see  Crossings,  In- 
juries TO  Persons,  etc.,  at,  A. 

Jurisdiction  as  dependent  on  township  lines, 
see  Animals,  Injuries  to,  608. 

Liability  for  excessive  speed  at  crossings  in, 
see  Crossings,  I.njuries  to  Persons,  etc., 
AT,  177. 

injuries  caused  by  negligence  in  streets 

and  highways,  see  Streets  and  High- 
ways, 360-368. 

unsafe  condition  of  substituted  road, 

see  Streets  and  Highways,  205. 

—  of.  to  abutting  owners,  where  railroad* 

are  constructed  in  streets,  see  Streets 

and  Highways,  211. 
Power  of,   to  change   street  grades,   see 

Streets  and  Highways,  154. 
restrict  rate  of  speed,  see  Streets 

AND  Highways,  318. 
Recovery  over  by,  against  railway  company 

Injuring  persons  or  property  in  street, 

see  Streets  and  Highways,  306-402. 
Remedy  by,  for  damages  or  for  removal  of 

obstruction  in  highway,  see  Strbbti  and 

Highways,  420-422. 


w 


1100 


TOWNSHIPS— TRACKS. 


:| 


u 


TOWNSHIPS. 

Power  of  legiilatore  to  authorise  aid  to  rail- 
ways by,  see  Municipal  and  Local 
Aid,  9* 


TBACK  CLEAHEBS. 

Patents  for,  see  Patents  for  Inventions, 
60. 


TBAGKHASTEB. 
Service  of  process  on,  see  Prockss,  38. 


TRACKS. 

Alleging  company's  knowledge  of  defective 
condition  of,  see  Employes,  Injuries  to, 
536. 

—  negligence  in  failure  to  keep  in  safe  con- 

dition, see  Employes,  Injuries  to,  521. 

Allowing  children  to  go  upon  when  contribu- 
tory negligence,  see  Children,  Injuries 
TO,  145. 

Assumption  of  risk  as  to  latent  defect  in,  see 
Employes,  Injuries  to,  217. 

patent  defects  in,    see    Em- 

PLOYis,  Injuries  to,  209. 

from  defects  in,  see  Employes,  In- 
juries to,  180. 

of  defects  in,  question  for  jury,  see 

Employ£s,  Injuries  to,  710. 

Building  additional,  on  right  of  way,  see 
Right  op  Way,  13. 

Care  required  as  to  condition  of,  see  Negli- 
gence, 15. 

Compensation  for  use  of,  how  determined, 
see  Leases,  etc.,  117»  110. 

Competency  of  evidence  as  to  safety  of,  see 
Evidence.  80-07. 

Conditions  for  use  of,  by  other  roads,  see 
Streets  and  Hic.hways,  04. 

Construction  and  repair  of,  as  towards  pas- 
sengers, see  Carriage  op  Passengers, 
101-170. 

—  of  statutes  regulating  joint  use  of,  see 

Statutes,  54. 

Contributory  negligence  in  being  on,  see  Em- 
ployes, Injuries  to,  315,318,322, 
323,  327,  320. 

of  persons  crossing,  see  Death   by 

Wrongful  Act,  102-202. 

Defects  in,  and  obstructions  on,  when  amount 
to  negligence,  see  Negmoence,  21,  22. 

Duty  of  company  as  to  safety  of,  see  Em- 
ployes, Injuries  to,  45-54. 

to  inspect  and  repair,  see  EmployAs, 

Injuries  to,  152. 

•»  —  driver  of  wagon  to  turn  oiT,  see  Elec- 
tric Railways,  85* 


Duty  of  passenger  to  leave,  after  espnlsioa 
from  train,  see  Ejection  of  Passengers, 
80. 

—  to  fence,  see  Animals,  Injuries  to,  85- 

113. 

persons  walking  on  or  crossing,  tee 

Licensees,  Injuries  to,  16-25. 

Effect  of  notice  of  excavations  near,  see  Em- 
ployes, Injuries  to,  231. 

—  —  obstructed  view  of,  on  duty  to  look  and 

listen,  see  Crossings,  Injuries  to  Per> 
SONS,  ETC,  at,  286-307. 

Evidence  of  failure  to  provide  safe,  see  Em- 
ployes, Injuries  to,  563. 

Failure  nf  employ^  to  examine,  when  con- 
tributory negligence,  see  EmployEs,  In. 
juries  to,  345. 

—  to  discover  obstructions  on,  when  con- 

tributory negligence,  see  Employes,  In- 
juries to,  355. 
Injuries  caused  by  defects  in  track  of  an- 
other company,  liability  for,  see  Employes, 
Injuries  to,  404. 

—  to  children  trespassing  on,  see  Children, 

Injuries  to,  34-41. 
Instructions  as  to  safety  of,  see  Death  by 

Wrongful  Act,  338. 
Joint  use  of,  by  tramway  and  other  vehicles, 

see  Tramways,  4. 
Laying  additional,  when  a  taking  of  prop- 
erty, see  Eminent  Domain,  167. 
Leaving  cars   standing  on,  negligence  of 

company,  a  question  for  jury,  see  Em. 

ployEs,  Injuries  to,  603. 
Liability  for  injuries  caused  by  torpedoes 

placed  on,  see  Agkncy,  101. 
to  employes  caused  by  defects  in, 

see  Employes,  Injuries  to,  470. 
by   obstructions   upon   or 

near,  see  EmployEs,  Injuries  to,  8O-02. 

—  of  company  to  trespassers  on,  see  Tres- 

passers, Injuries  to,  20-80. 

lessee  for  defects  in.  or  obstructions 

on,  seeXEASES,  etc.  ,  1 OO,  112. 

street  railway  for  defective  construc- 
tion of,  see  Street  Railways,  176-100. 

—  to  trespassers  for  injuries  by  torpedoes 

placed  on,  see  Trespassers,  Injuries  to, 

70. 
License  to  construct  and  use,  see  License,  3. 
Lying  down  upon,  or  sleeping  on,  as  con- 
tributory negligence,    see   Trespassers, 

Injuries  to,  102,  103. 
Negligence  in  allowing  obstructions  near, 

question  for  jury,  see  EmployEs,  Injuries 

to,  074-680. 
failing  to  provide  safe,  see  EmployEs, 

Injuries  t:»,  660,  670. 
Notice  or  knowledge  of  defects  in,  see  Em* 

FLOvts,  Injuries  to,  227« 


^^ 


TRACT— TRAINS. 


1101 


r  espnlsion 

*ASSENGERi, 
KS   TO,   86- 

rotsing,  mc 

ear,  see  Em- 

to  look  aad 
Es  TO  Per- 

afe,  see  Eu- 

when  cos* 
iPLOv£s,  In. 

when  con> 
iPLOYfts,  In- 

rack  of  an- 

:e  Employes, 

:e  Children, 

e  Death  by 

lier  ▼ehiclet, 

ing  of  prop- 
er. 

sgligence  of 
iiry,  see   Em- 

*j  torpedoes 

.  • 

f  defecta  in, 
179. 

ins  upon  or 
to,  80-02. 
)n,  see  Trbs- 
». 

obstruction* 
LI  2. 

ve  construe- 

1 76-190. 

ly  torpedoes 

Injuries  to, 

e  License,  3. 
on,  as  con- 

Trespassers, 

ictions  near, 

vis.  Injuries 

it   EMPLOVtS, 

i  in,  see  Em* 


Obstraction  of,  by  teams,  see  Street  Rail- 
ways, 210. 
Of  steam  railway,  location  of,  in  street,  see 

Streets  anu  Highways,  144-151. 
-  street  railway,  rir^ht  of  public  to  use,  see 

Street  Railways,  230-230. 
Ordinance  regulating   construction  of,  see 

Street  Railways.  204-266. 
Permission  by  agent  to  move  building  across, 

see  Agency,  05. 
Persons  habitually  walking  on  or  across, 

when  deemed  licensees,  see  Licensees, 

Injuries  to,  6. 

—  walking  on,  crossing,  or  riding  on,  when 

deemed  trespassers,  see  Trespassers,  In- 
juries TO,  2-6. 

Power  to  authorize  additional,  see  Street 
Railways,  123. 

Presumption  of  negligence  from  proof  of  de- 
fects in,  see  Employ£s,  Injuries  to,  027. 

Proof  of  defects  in,  see  Death  by  Wrongful 
Act,  207. 

Prosecutions  for  obstructing,  see  Criminal 
Law,  35. 

Rails  of,  when  deemed  fixtures,  see  Fixtures, 

li. 

Right  to  drive  other  Tehides  on,  see  Elec- 
tric Railways,  34. 

—  —  give  mortgage  on,  see  Mortgages,  10. 
Risks  assumed  from  defects  in,  see  Employes, 

Injuries  to,  287. 

Running  over  persons  on,  see  D)aAth  by 
Wrongful  Act,  79. 

Safety  of,  question  for  jury,  see  Death  by 
Wrongful  Act,  299. 

Situs  of,  for  taxation,  see  Taxation,  130. 

Standing  or  walking  on,  by  passenger,  when 
contributory  negligence,  see  Carriage 
op  Passengfrs,  448-452. 

—  —  when  negligence,  see  Trespass- 
ers, Injuries  to,  94-101. 

—  upon  or  near,  when  negligence,  see  Con- 

tributory Negligence,  39,  40. 

Sufficiency  of  evidence  to  show  unsafety  of, 
see  Employes,  Injuries  to,  007»008. 

Use  of,  by  other  roads,  see  Streets  and  High- 
ways, 101. 

When  exempt  from  taxes,  see  Taxation, 
103. 

—  subject  to  execution,  see  Execution,  12. 
— taxation,  see  Taxation,  77. 


TRACT. 
Evidence  of  damage  to  part  of,  not  taken,  see 
Eminent  Domain,  690-609. 

TSLAVE, 

Contracts  in  restraint  o(  Yalldity  o(  see  Con- 
tracts, 01-04. 


Contracts  void  as  in  restraint  of,  see  Taut- 
graph,  etc..  Lines,  O. 

TBABE  FIXTITEES 
Compelling  company  to  take,  under  English 

compulsory  purchase  laws,  see  Eminent 

Domain,  1105. 
What  are  deemed  to  be,  see  Fixtures,  1<3. 

TRAFFIC. 

Facilities  for  the  interchange  of,  see  Intcr- 
STATE  Commerce,  99-108. 

Over  connecting  lines,  regulation  of,  by 
commissioners,  see  Railway  Commission- 
ers, 9. 

TRAFnC  A0SEEMENT8. 
Construction  of,  see  Contracts,  1 10. 


TRAIN  DISPATCHER. 
As  fellow-servant  with  other  employes,  s*' 
Fellow-servants,  427-431. 

TRAIN  HANDS. 

As  fellow-servants   with   section  foremaiv 
see  Fellow-sekvants,  364. 


TRAINMEN. 
As  fellow-servants  with  conductor,  see  Fbl« 

LOW-SERVANTS,  200-203. 

engineer,  see  Fellow-servants, 

299. 

other  employes,  see  Fellow- 
servants,  433-441. 

When  deemed  to  be  in  different  department 
from  other  employes,  see  Fellow-serv- 
ants, 110-124. 


TRAINS. 

Agreement  to  stop  at  eating  house,  see  Ri. 

freshment  Rooms,  2. 
Alleging  negligence  in  the  management  and 

operation  of,  see  Employes,  Injuries  to, 

632-634. 
Assumption  of  extra  risk  in  the  operation  of, 

see  EmployAs,  Injuries  to,  271. 
risk  as  to  management  and  operation 

of,  see    EMPLOYis,  Injuries  to,   104- 

197. 
in  management  and  operation  ot, 

see  Employes,  Injuries  to,  213. 
Collisions  between,  see  Collisions,  19. 
streetcars  and,  see  Collisions,  20- 

23. 
Compelling  the  running  oi;  see  Eaitun  R. 

Co.,  6 ;  Mandamus,  16« 


1102  TRAIN    WKKCKIN<1      'KAMWAYS    (KNCJT.ANH),  1-3. 


Coacnrrinif  neKligence  of  company  and  fel- 
low-terTantt  in  management  of,  see  Fel- 

LOW-SERVANTS,  70. 

Construction  of  statute*  relative  to  brakes 
on,  see  Statutes,  55. 

Contributory  negligence  in  making  op,  see 
Employes,  Injuries  to,  360. 

of  employes  in  tb«  operation  of,  see  Em- 

PLov£s,  Injuries  to,  341-305. 

— passengers  in  boarding  and  alight- 

ing  from,  see  Death  by  Wronoful  Act, 
183,  188. 

Crossing  track  in  front  of,  when  contribu- 
tory negligence,  see  Emi'loy£s,  Injuries 
to,  322. 

Duty  of  company  as  to  manning  and  equip- 
ment of,  see  Employes,  Injuries  to, 
177. 

— to  licensees  on,  see  Licensees,  Inju- 

ries  to,  15. 

— towards  trespassers  on.  see  Tres- 
passers, Injuries  to,  81-00. 

—  to  employes  in  the  management  of,  see 

Employes,  Injuries  to,  155-178. 

—  —  instruct  employ^  as  to  operation  of, 

see  Employes,  Injuries  to,  85. 

—  —  refrain  from  running  on  Sunday,  see 

Sunday,  O. 

—  —  run,  under  working  agreements,  tee 

Leases,  etc.,  133. 
Ejection  of  trespassers  from,  see  Trespass- 

ERs,  Injuries  to,  85-00. 
Exhibition   of  ticket   before  entering,  see 

Tickets  and  Fares,  30. 
Failure  to  run,  as  ground  for  receiver,  see 

Receivers,  14. 
Fixing  hours  of  arrival  and  departure  of,  see 

Leases,  etc.,  127. 
Frightening  of  teams  by,  as  an  element  of 

land  damages,  see  Eminent  Domain,  686. 
Injuries  to  passengers  by  negligent  starting 

of,  see  Elevated  Railways,  214. 
Knowledge  of  dangerous  manner  of  running, 

effect  of,  see  Employes,  Injuries  to,  247, 

248. 
Liability  for  acts  of  Independent  contractor 

In  operation  of,  see  Independent  Con- 
tractors, 18. 
Making  up,  in  city  streets,  see  Streets  and 

Highways,  160. 
Negligence  in  insufficiently  manning,  a  ques* 

tion  for  jury,  see  Employes,  Injuries  to, 

600. 

—  —  management  of,  sufficiency  of  evidence 

of,  see  EMPLovis,  Injuries  to,  612. 
Non-liability  for  negligence  of  fellow-servants 

in  operating,  see  Fellow-servants,  81- 

46. 
Payment  of  fare  on.  see  Tickits  and  Faus, 

117-180. 


Persons  on,  when  deemed  trespassers,  see 

Trespassers,  Injuries  to,  12-15. 
Posting  time  of  arrival  of,  see  Timb-tablss, 

4,5. 
Privileges  of  express  companies  upon,  see 

Express  Companies,  7-13. 
Projections  from  passing,  injuries  caused  by, 

see  Stations  and  Depots,  60. 
Prosecutions  for  gambling  on,  see  Criminal 

Law,  25. 
Regulating  distance  between,  see  Crossings, 

Injuries  to  Persons  etc.,  at,  20. 
Revocation  of  license  td  sell  lunch  on,  see 

License,  13. 
Risks  assumed  by  repairers  and  construction 

hands  as  to,  see  Employes,  Injuries  to, 

201. 
Rules  requiring  employ^  to  remain  in  middle 

of,  see  Employes,  Injuries  to,  448. 
—  respecting  the  running  and  starting  of,  see 

Employes,  Injuries  to,  442. 
Wrecking  of,  see  Criminal  Law,  43* 

TRAOr  WRECKING. 
Prosecdtions  for,  see  Criminal  Law,  48* 

TRAHWAT8  (ENOLAHD). 
Rating  of,  in  England,  see  Taxation,  383. 

1.  Incorporation  and  powers,  gen- 
erally.— A  tramway  company  incorporated 
by  act  of  parliament  is  not  only  entitled  to 
carry  out  the  provisions  of  the  statute  but 
is  bound  to  obey.  Edinburgh  St.  Tram' 
ways  Co.  v.  Black,  L.  /?.  2  Sc.  App.  Cat.  336. 

\Vhere  an  act  incorporating  a  tramway 
company  directs  compliance  with  the  de- 
posited plans  and  sections  they  are  regarded 
as  embodied  in  the  statute.  Edinburgh  St. 
Tramways  Co.  v.  Black,  L.  R.  2  Sc.  App. 
Cas.  336. 

2.  Authority  to  construot.— A  tram* 
way  which  is  dangerous  and  inconvenient  to 
horses  and  vehicles,  and  which  was  con- 
structed without  authority  of  parliament, 
but  by  virtue  of  a  contract  with  the  vestry 
of  the  parish,  is  a  public  nuisance.  Quttn 
V.  Train,  2  B.  &*  S.  640,  31  L.  J.  At.  C.  169, 
iF.&*F.  22. 

8.  Obligation  to  repair— Paving 
(Tramways  Act,  1870).  —  Where  a 
tramway  company  in  constructing  its  track 
merely  raises  the  sleepers  and  rails  to  the 
level  of  the  road,  or  raises  the  stone  pack- 
ing of  the  road  to  the  level  of  the  surface 
of  the  rails,  it  is  maintaining  and  keeping 
the  road  in  good  repair  under  the  Tram- 
wajrs  Act,  1870. 1  38,  and  is  not  liable  to  the 


paiMrt.  tee 
10. 

riMK-TABLU| 

s»  upon,  see 

s  cattted  bj. 

ee  Criminal 

!e  Crossings, 
r,  20. 
unch  on,  see 

coutruction 

INJURICS  TO, 

kin  in  middle 
o.  448. 
•rting  of,  see 
i. 
.43. 

VG. 
Law,  48* 

AND). 

KATION,  383. 

nwera,  gen- 

'  incorporated 
ly  entitled  to 
le  statute  but 
rA  St.  Tram- 
App,  Cas.  336. 
ig  a  tramway 
witli  ttie  de- 
•f  are  regarded 
Edinburgh  St, 
R.  2  Sc.  App. 

lot. — A  tram* 
iconvenient  to 
tiicli  was  con* 
>f  parliament, 
ith  the  vestry 
sance.  Quttn 
.J.M.  C.169. 

tlr— Paving 

I.  —  Where  a 
cting  its  track 
id  rails  to  the 
le  stone  pack* 
of  the  surface 
%  and  keeping 
ler  the  Tram* 
ot  liable  to  the 


TRAMWAYS  (ENGLAND),  4-6. 


1103 


TCStry  of  the  parish  for  the  expenses  of  the 
superintendence  of  the  road  under  section 
26.  St.  Luki's  Vtstry  v.  North  Alttropolitan 
Tramways  Co.,  L.  R.  i  Q.  B.  D.  760,  35  L. 
T.  329. 

By  a  local  tramway  act,  passed  after  and 
incorporating  tlie  Tramways  Act,  1870,  the 
space  between  the  rails  and  for  a  distance 
of  eighteen  inches  beyond  each  external 
rail  was  to  be  paved  by  the  company  to  the 
satisfaction  of  the  local  authority  for  the 
district,  with  wood  or  other  paving,  to  be 
approved  of  by  the  local  authority.  On  an 
application  by  the  company  the  local  au- 
thority declined  to  approve  of  a  particular 
paving,  and  the  company  thereupon  liad  it 
down  without  such  approval.  Held,  on  an 
application  by  the  local  authority  for  a  man* 
damus  to  the  company  to  take  up  the  pav- 
ing (aiTirming  the  judgment  of  the  Queen's 
Bench  Division),  that  the  powers  given  to 
the  local  authority  were  subject  to  the  pro- 
visions of  the  Tramways  Act,  1870;  that  a 
difference  had  arisen  within  section  33  of 
that  act  which  ought  to  be  determined  by  a 
referee  appointed  by  the  board  of  trade,  and 
that  the  mandamus  ought  not  to  be  granted. 
Queen  v.  Croydon  6*  A'^.  Tramivays  Co.,  L. 
J\\  18  Q.  B.  D.  39.— Distinguished  in 
Bristol  T.  &  C.  Co.  v.  Mayor,  etc.,  of  Bristol, 
85  g.  B.  D.  427. 

A  municipal  corporation,  as  the  road  and 
local  authority,  has  power  to  alter  a  road 
within  its  district,  upon  which  a  tramway 
has  been  constructed  under  the  Tramways 
Act,  1870,  by  taking  up  the  existing  granite 
pavement  and  laying  down  a  wood  pavement 
over  the  whole  of  the  roadway,  including 
the  space  between  the  rails  of  the  tramway 
and  eighteen  inches  on  each  side  thereof. 
Such  alteration  is  not  a  difference  within 
the  Tramways  Act,  1870,  S  33>  to  be  referred 
to  a  referee  to  be  appointed  by  the  board  of 
trade.  Bristol  T.  ^  C.  Co.  v.  Mayor,  etc., 
of  Bristol,  L.  R.  i%  Q.  B.  D.  427.— DIS- 
TINGUISHING Queen  v.  Croydon  &  N.  Tram- 
ways Co.,  L.  R.  18  Q.  B.  D.  39. 

4.  Use  of  tracks  by  other  vehicles. 
—Under  43  Vict.  Act  No.  35,  §  3,  the  com- 
mission for  railways  in  New  South  Wales 
has  a  right  to  run  steam  motors  upon  the 
tramway  lines  mentioned  in  the  second 
schedule  thereto.  Commissioner  for  Rail- 
ways v.  Toohey,  L.  R.  9  App.  Cas.  730,  53 
L.  f.  />.  C.  91,  s>  L.  T.  $83. 

An  omnibu;  proprietor  who  attaches  to 
his  vehicle  s  lever  with  arms  having  a  small 


revolving  disk  or  roller  which  the  driver 
might  drop  into  the  groove  of  the  rail  at 
the  lower  side  of  each  fore  wheel  when  on 
the  tramway,  such  disk  operating  when 
down  as  a  flange  at  the  point  of  contact 
with  the  rails,  but  when  withdrawn  leaving 
the  vehicle  free  to  travel  over  any  part  of 
the  road,  violates  the  Tramways  Act.  1870, 
§  54,  which  prohibits  the  user  of  a  tramway 
by  unlicensed  persons  with  carriages  having 
flanged  wheels  or  other  wheels  suitable  only 
to  run  on  the  rail  of  such  tramway.  Cottam 
V.  Guest,  I  Am.  &»  Ettg.  R.  Cas.  574,  L.  R. 
6  Q.  B.  D.  70.  50  L.f.  Q.  B.  D.  174,  39  W. 
R.  305. 

6.  Fares— Municipal  regulation.— 
It  is  competent  to  the  local  authority  of  any 
borough  to  make  and  to  enforce  a  by-law, 
under  theTramwayn  Act.  1870,  §  48,  for  reg* 
ulating  the  number  of  passengers  to  be  car* 
ried  in  and  upon  tramcars,  and  the  extent 
of  accommodation  to  be  afforded  to  them. 
The  assent  of  the  'essees  of  the  line,  under 
section  46,  is  w  necessary  to  the  validity 
of  such  by*law.  ''•mith  v.  Butler,  L.  R.  16 
Q.  B.  D.  349. 

Where  a  con  pany  is  authorized  to  aban- 
don some  of  the  lines  specified  in  its  act,  and 
substitute  omi.ibuses,  and  is  authorized  to 
charge  a  higher  rate  of  fare  "  on  those  routes, 
and  any  tramway  routes  worked  in  connec- 
tion therewith,"  it  is  not  authorized  to  de- 
mand a  higher  fare  from  passengers  travel- 
ing by  the  tramways  only.  Edinburgh  St. 
Tramways  Co.  v.  Torbain,  L.  R.  3  App.  Cas. 
58,  37  L.  T.  388. 

Where  a  person  becomes  a  passenger 
upon  a  tramway  he  is  liable  to  pay  tbe  fare 
whenever  it  is  demanded  of  him  by  the  con- 
ductor.   Egginton  v.  Pearl,  33  L.  T.  428. 

A  by-law  of  a  company  providing  that 
"every  passenger  shall  upon  demand  pay 
the  fare  legally  demandable  for  the  jour- 
ney" is  authorized  by  a  provision  in  the 
company's  act  empowering  it  to  "  make 
regulations  for  regulating  the  traveling  in 
or  upon  any  carriage  belonging  to  them," 
and  also  providing  that "  the  tolls,  etc.,  shall 
be  paid  to  such  persons  and  at  such  places 
upon  and  near  the  tramways  and  in  such 
manner  and  under  such  regulations  as  the 
company  shall  by  notice  appoint."  Eggin- 
ton v.  Pearl.  33  L.  T.  428, 

6.  Liability  for  Injuries  caused  by 
negligence.— The  General  Tramways  Act. 
1870(33  &  34  Vict.  c.  78),  enacts  in  section 
S;  that  "the  promoters  or  lessees,  as  the 


w 


1194 


TRAMWAYS  (ENGLAND),  7,8. 


I; 


5,  f'^ 


m 


S:  ,,. 


Is 


CMC  may  be,  shall  be  answerable  (or  'all 
accidents,  damages,  and  injuries  happening 
through  their  act  or  default,  or  through  the 
act  or  default  of  any  person  in  their  em- 
ployment.  by  reason  or  in  consequence  of 
any  of  their  works  or  carriages."  ////</, 
that  the  section  applies  only  to  a  wrongful 
act  or  default,  and  does  not  make  the  pro- 
moters or  lessees  answerable  for  m^re  acci- 
dent caused  without  negligence  by  their 
use  of  tramcars.  BrockUhurst  v.  Man- 
tkttttr,  B.,  R.  &*  O.  S.  Tramways  Co., 
26  Am.  A"  Eng.  R.  Cas.  369,  L.  R.  17  Q.  B. 
D.  118. 

The  statutory  powers  of  defendant  com- 
pany could  not  be  taken  to  authorize  it  to 
run  its  tramcars  along  the  highway  upon  a 
tramway  in  a  defective  condition.  The 
tramway  being  defective,  defendant  In  run- 
ning its  tramcar  on  the  highway  was  doing 
an  unlawful  act,  and  was  liable  as  for  a  tres- 
pass in  respect  of  the  injury  occasioned  to 
plaintiff  by  its  immediate  action.  SadUr  v. 
South  Staffordshire  &*  B.  D.  S.  Tramways 
Co.,  38  Am.  &*  Eng.  R.  Cas.  476,  L.  R. 
23  Q.  B.  D.  17. 

7. or  non-repair  of  highway.— 

Where  a  company  has  entered  into  a  con- 
tract with  the  road  authority  under  33  &  34 
Vict.  c.  78,  §  29,  whereby  such  authority  has 
undertaken  the  repair  of  the  portion  of  the 
road  which,  under  section  128,  the  company 
had  to  repair,  the  company  is  not  liable  for 
injuries  occasioned  through  non-repair  of 
such  portion  of  the  road  to  a  person  using 
the  same.  Alldrtd  v.  Wtst  Mttropolitan 
Trams  Co.,  [1891]  a  Q.  B.  398.— Approv- 
ing Howitt  V.  Nottingham  &  D.  Tramways 
Co.,  L.  R.  12  Q.  B.  D.  16. 

8.  Winding  up— Disposal  of  par- 
liamentary deposit.- Under  the  discre* 
tion  given  by  the  Tramways  Act,  1870,  rule 
26,  the  court  ordered  a  parliamentary  de- 
posit fund  to  be  paid  out  to  the  official 
liquidator  on  the  winding  up  of  a  tramway 
company,  to  be  applied  by  him  for  the  bene* 
fit  of  the  company's  creditors,  and  refused 
to  consider  such  fund  forfeited  to  the 
crown.  In  rt  jytumottth  Borot^h  Tram- 
way  Co.,  33  L.  T.  8. 

The  winding  up  of  a  company  haying  been 
ordered  on  the  ground  that  it  was  unable 
to  pay  its  debts,  the  court  refused  to  order 
the  parliamentary  deposit  fund  to  be  ap- 
plied as  part  of  the  assets  for  the  payment 
of  the  company's  debts,  until  it  was  proved 
that  there  were  debts  which  could  not  be 


paid  by  means  of  calls  on  the  shareholders, 
In  rt  Bradford  Tramways  Co.,  35  L.  T, 
827,  46  L.  J.  Ch.  D.  89,  L.  R.  4  Ch.  D.  18 ; 
rrvtrsing  34  L.  T.  478. 

The  intention  of  the  board  of  trade  regu- 
lations under  the  Tramways  Act.  1870,  rela- 
tive to  the  ultimate  disposal  of  the  deposit 
made  by  a  tramway  company  on  obtaining 
a  provisional  order  authorizing  the  con- 
struction of  the  tramway,  is,  that  the  pro- 
moters are  not  to  get  back  the  deposit, 
either  directly  or  indirectly,  if  the  tramway 
is  not  completed ;  that  on  an  application 
under  rule  28  for  application  of  the  deposit, 
the  creditors  are  to  be  considered  and  not 
the  shareholders;  and,  that  only  meritori- 
ous creditors  are  to  be  considered.  Other- 
wise, the  deposit  will  be  forfeited  to  the 
crown.  In  rg  Lawistoft,  Y,  &*  S.  Tram- 
ways  Co.,  L.  R.  6  Ch.  D.  484,  46  L.  J.  Ch. 
D.  393,  2$  W.  R.  525,  36  L.  T.  578.— Fol- 
lowed IN  Re  Birmingham  &  L.  J.  R.  Co., 
L.  R.  28  Ch.  D.  652.  54  L.  J.  Ch.  580,  52  L. 
T.  729.  33  W.  R.  $17. 

Where  a  company  which  has  been  au- 
thorized to  construct  tramways  by  a  pro- 
visional order  of  the  board  of  trade,  made 
under  the  Tramways  Act,  1870,  and  after- 
wards confirmed  by  an  act  of  parliament, 
has  failed  to  construct  the  authorized  tram- 
ways within  the  time  limited  for  the  purpose, 
and  has  been  ordered  to  be  wound  up,  the 
court  has  not,  under  rule  22  of  the  Board  of 
Trade  Rules,  1886  (the  terms  of  which  are 
in  substance  the  same  as  those  of  section  t, 
subsection  7.  of  the  Parliamentary  Deposits 
and  Bonds  Act,  1892),  jurisdiction  to  order 
the  liquidator's  general  costs  of  the  liquida- 
tion to  be  paid  out  of  the  deposit  made,  in 
pursuance  of  the  Tramways  Act,  1870,  §  12. 
prior  to  the  issue  of  the  provisional  order. 
In  rt  Colchtsttr  Tramways  Co.,  [1893J  i 
Ch.  309. 

The  liquidator  cannot  be  allowed  out  of 
the  deposit  any  costs  beyond  those  of  pro- 
ceedings taken  by  him  in  reference  to  the 
application  of  the  deposit.  In  rt  Colchtsttr 
Tramways  Co.,  [1893]  i  Ch.  309. 

Where  the  undertaking  authorized  by 
parliament  of  a  tramway  or  other  company 
has  been  abandoned,  all  the  creditors  of  the 
company,  including  the  solicitor  or  parlia- 
mentary agent,  concerned  in  the  promotion 
»f  the  bill  in  parliament  are,  as  between 
themselves  and  the  depositors,  entitled, 
under  the  Psrliamenury  Deposits  and 
Bonds  Act.  1892,  S  I,  subsec  i.  a,  to  be  paid 


TRANSCRIPT-TRANSFER  COMPANIES,  1,2. 


1105 


■bareholden, 

I C"-.  35  L.  T. 

4  C*.  Z>.  ,8; 

|o/  trade  regu. 
Act.  1870,  rela- 
[of  the  deposit 
T  on  obtaining 
fing  the  con- 
[that  the  pro- 
the  deposit, 
the  tramway 
In  application 
}i  the  deposit, 
lered  and  not 
>nly  meritori. 
sred.    Other- 
fcited  to  the 
*•  S.   Tram- 
46  L.  /  ck. 
"•  578.— FOL- 
L.  J.  R.  Co., 
''•  580,  52  L. 

as  been  au« 
n  by  a  pro- 

fade,  made 
o.  and  after. 

parliament, 
lorized  tram- 
the  purpose, 
>und  up.  the 
the  Board  of 
f  wiiich  are 
>f  section  1, 
ry  Deposits 
on  to  order 
the  liquida< 
lit  made,  in 
.  '870.  §  12, 
onal  order. 
..  fi893j  , 

fed  out  of 
•se  of  pro- 
>ce  to  the 
Cokhtster 

>riied   by 
company 
»«  of  the 
ix*  parlia- 
romotion 
between 
entitled, 
lits    and 
>  be  paid 


out  of  the  parliamentary  deposit  In  priority 
to  the  depositors.  But  where  the  company 
never  had  any  existence  beyond  stututory 
incorporation,  and  there  is  a  contest  be- 
tween several  claimants  to  the  deposit,  in* 
eluding  the  solicitor  and  parliamentary 
agent  who  have  been  instrumental  in  ob- 
taining the  passing  of  the  company's  act, 
none  of  the  claimants  is  entitled  to  rank 
as  a  creditor.  In  re  Manchtster,  At,  &*  D. 
Tramways  Co.,  [1893]  2  C*.  638. 


Wrongful,  of  plaintifTs  shares,  action  for,  see 
Stockiidluers,  lOU. 


TRANSCRIPT. 

On  appeal  in  condemnation  proceedings,  see 

Eminent  Domain,  030. 
from  justice,  see  Animals,  Injuries  to, 

634-636. 


TRANSFER. 

Assessments  on  stock  after,  see  Subscrip- 
tions TO  Stock,  73-75. 

Of  bills  of  lading,  see  Bills  op  Lading,  108- 
114. 

as  collateral  security,  see  Bills 

OF  Lading,  124-128. 

effect  of,  to  extinguish  right  of 

stoppage  in  transitu,  see  Carriage  of 
Merchandise,  513. 

—  bonds  by  delivery,  see  Bonds,  20. 

—  commercial  paper,  see  Bills,  ktc,  14-18. 
after  maturity,  see  Bills,  etc.,  17. 

—  contract  for  carrying  mail,  by  mortgage  of 

road,  see  Carriage  ok  Mails,  5. 

—  corporate  franchise,  see  Franchises,  4. 
property  to    svtcessor   in    office,  see 

President,  14. 

—  coupons,  see  Coupons,  6. 

—  goods,  by  carrier,  to  its  own  car,  see  Car- 

riage OF  Merchandise,  641. 

—  —  stored,  see  Warehuusemen,  11. 

—  Uens,  see  Liens,  2. 

—  passengers  to  connecting  line,  reasonable 

time  for,  see  Carriage  of  Passengers, 
514. 

—  paaienger  tickets  contrary  to  rule  of  com- 

pany, see  Ejection  of  Passengers,  36. 

—  railway  aid  bonds  by  delivery,  see  Munici- 

pal AND  Local  Aid,  350. 

—  right  of  way  in  street  under  municipal 

grants,  see  Streets  and  Highways.  97. 

—  road  or  franchise,  forfeiture  for,  see  Dis- 

solution, etc,  8. 

—  stock,  see  Stock,  31-00. 

by  married  woman,  see  Husband  and 

Wife,  8. 

—  —  power   of  personal  representative  to 

make,  see  Executors  and  Administra- 
tors, 10. 

7  D.  R.  D.— 70 


TRANSFER  AGENTS. 

Misrepresentations  by,  effect  of,  see  Stock, 

83. 
Powers  and  duties  of,  see  Stock,  42. 


TRANSFER  BOOK. 
Keeping,  inspection,  entries    in,  etc.,  see 
Stock,  80-85. 


TRANSFER  CHECKS. 

Expulsion  of  passengers  using,  see  Strext 
Railways,  526,  520. 


TRANSFER  COHPANIES. 

Liability  of,  for  baggage,  see  Baggage,  75- 
78. 

Right  of,  to  charges,  see  Carriage  of  Mer- 
chandise, 658. 

1.  Amount  of  recovery  against.— 

A  transfer  company  undertook  to  convey 
plaintiff  from  a  station  through  a  city  to 
lier  home,  but  set  her  down  a  mile  from  her 
residence,  on  the  sidewalk  of  a  street  much 
frequented,  and  on  which  street-cars  ran  to 
witliin  one  square  of  her  home.  It  was 
daylight,  but  the  weather  w.'is  cold,  and 
plaintiff  was  a  lady  of  delicate  coistitution. 
She  walked,  and  in  doing  so  contracted  a 
cold  which  resulted  in  sickness  permanently 
impairing  her  health.  Htld,  that  she  could 
only  recover  reasonable  cost  of  a  convey- 
ance home  and  any  necessary  expense  in 
endeavoring  to  avoid  exposure  to  the  cold ; 
that  both  her  own  contributory  negligence 
and  the  remoteness  of  the  damages  would 
prevent  a  recovery  of  damages  resulting 
from  the  sickness.  Francis  v.  St.  Louis 
Transfer  Co.,  5  Mo.  App.  7.— Followed  in 
Morse  v.  Duncan,  8  Am.  h  Eng.  R.  Cas. 
374,  14  Fed.  Rep.  396. 

2.  Liability  of,  as  connecting  car- 
riers.— A  transfer  company  employed  by 
a  consignee  to  remove  goods  from  a  sta« 
tion  is  not  a  connecting  carrier.  Nanson  v. 
Jacob,  yi  Am.  <S-  Eng.  R.  Cas.  553,  93  Mo. 
331,  12  West.  Rep.  358,  6  5".  W.  Rep.  246; 
affirming  12  Mo.  App.  125. 

Defendant  company  received  a  piano  for 
a  point  beyond  its  line,  and  gave  a  bill  of 
lading  reciting  that  it  was  to  be  carried 
to  the  end  of  its  line  and  delivered  "to 
the  next  connecting  common  carrier." 
The  next  railroad  line  and  defendant's  road 


.MIM 


1106 


TRANSFEREES— TREES. 


.1 


u 


were  connected  by  a  "  Y,"  but  their  freight 
depots  were  about  one  mile  apart.  It  was 
the  habit  of  the  companies  in  transferring 
freights  by  the  car-load  from  one  line  to  the 
other  to  use  the  "  Y,"  but  freights  in  less 
quantities  were  removed  from  tlie  cars  and 
transported  by  drays.  In  this  case  defend- 
ant removed  the  piano  from  its  car  and 
delivered  it  to  persons  doing  business  as  a 
transfer  company,  who  let  the  piano  fall,  in 
transporting  it  from  one  station  to  the 
other,  and  injured  it.  ffe/J,  that  such 
transfer  company  was  not  "a  connecting 
common  carrier,"  within  the  meaning  of 
the  bill  of  lading,  and  that  defendant  com- 
pany was  liable  for  the  injury.  Missouri 
Pac.  K.  Co,  V.  Young,  25  Neb.  651,  41  N, 
W,  Rtp.  646.— Applying  Hooper  v,  Chi- 
cago &  N.  W.  R.  Co..  27  Wis.  81. 


TRANSFEREES. 
Of  stock,  rights  of,  see  Stock,  72-70. 


TRANSFER  OF  SHARES. 

Effect  of,  on  stockholders'  liability  to  credit- 
ors, see  Stockholders,  51-54. 


TRANSFER  STATIONS. 
Who  deemed  passengers  at,  see  Carriaob  o 
Passengers,  38-42. 


TRANSIT. 

Liability  for  loss  or  injury  during,  see  Car- 
riage or  Merchandise,  104-107. 

—  of  carrier  for  loss  or  injury  prior  to,  see 
Carriage  of  Merchandise,  05-103. 

^ of  goods  after,  nee   Carriage   of 

Merchandise,  108-172. 


TRANSITORT  ACTIONS. 
For  causing  death,  see  Death  by  Wrongful 

Act,  107. 
What  are,  see  Actions,  7 ;  Animals,  Injuries 

TO,  204. 


TRANSPORTATION. 

Contract  for,  when  ultra  vires,  see  Ultra 
Vires,  20,  21. 

Of  coal,  when  deemed  a  public  use,  see  Emi- 
nent Domain,  188. 

—  diseased  live  stock,  see  Carriage  of  Live 

Stock,  100-116. 

—  dogs,  see  Carriage  or  Live  Stock,  1 10, 

117. 

—  freight,  when   deemed   interstate  com- 

nerce,  see  Interstate  Commerce,  4-10. 


Of  mail   clerks,  inspectors,  etc.,  see  Car. 

KIAGE  OF  Mails,  17. 
—  passengers,  see  Carriage  op  Passengers. 
on  freight  trains,  hand-cars,  etc.,  see 

Carriarp.  of  Passengers,  280-300. 
Power  to  bind  company  by  contract  for,  lee 

Station  Agents,  3. 


TRANSSHIPMENT. 
Of  goods  by  carrier,  see  Carriage  or  Mer- 
chandise, 160. 


TRAVELERS. 
Duty  of  town  towards,  where  highway  it 

obstructed,  see  Streets  and  Highways, 

400. 
Injuries  to,  by  independent  contractor,  lia- 
bility for,  see  Independent  Contraciors, 

20. 
Liability  for  delay  of,  by  obstructions   in 

highway,  see  Streets  and    Highways, 

408. 
On  highway,  duty  to  fence  for  protection  of, 

see  Fences,  73. 


TRAVELINO. 
On  Sunday,  see  Sunday,  4,  5. 


TRAVELINO  AOENTS. 
Service  of  process  on,  see  Process,  84* 


TRAVERSE. 
On  return  of  mandamus,  see  Mandamus,  34. 


TREASURER. 
Bond  and  liability  of  auretiet,  see  OrricERs, 

lA. 
Levy  of  assessment  on  stock  by,  see  Sub- 

criptions  to  Stock,  57. 
Of  corporation,  liability  of,  as  garnishee,  see 

Attachment,  etc,  lO. 
Rights,  powers,  and  duties  of,  see  Officers, 

15. 


TREBLE  DAMAGES. 
In  condemnation  proceedings,  see  Eminent 
Domain,  073. 


TREES. 
Amount  recoverable  for  injury  to,  by  firt,  see 

Fires,  343,  344. 
Evidence  of  value  of,  on  aaaessment  of  land 

damages,  see  Eminent  Domain,  607. 
Removal  of  dangerous,  from  right  of  way,  see 

Right  op  Way,  24. 


c,  tee  Cak* 

Paisknoiki. 
>ra.  etc.,  let 
)0-300. 

ract  for,  ice 


01  or  Mu. 


highway  if 
>  Highways, 

ntractor,  li«. 

Contractors, 

tractions   in 
Highways, 

>rotection  of, 


T8. 
CSS,  34. 


NOAMUS,  34. 

ice  Oppicbrs, 

by,  see  SUB- 

:arnithee,  see 

see  Officers, 

see  Eminent 

a,  b J  flrv,  see 

iment  of  land 
UN,  607. 

ktof  way,  see 


TRESPASS,  1,2. 


1107 


TRESPASS. 

Action  for,  by  abutting  owner,  see  Streets 
AND  Highways,  220. 

—  of,  when  lies  for  interference  with  private 

ways,  see  Private  Ways,  11. 
As  an  element  of  land  damages,  see  Eminent 

Domain,  721. 
By  independent  contractor,  liability  for,  see 

Independent  Contractors,  10*  17. 

—  landowner  for  wrongful  interference  with 

property,  see  Eminent  Domain,  1055- 
1085. 

Criminal  prosecution  for,  see  Criminal  Law, 
45. 

Enjoining  continuance  of,  see  Streets  and 
Highways,  233. 

For  unlawful  entry  on  turnpikes,  see  Turn- 
pikes, O. 

Measure  of  damages  in  actions  of,  see 
Streets  and  Highways,  281. 

On  lands,  action  for,  when  barred  by  lapse 
of  time,  see  Limitations  of  Actions,  50. 

compensatory  damages  for,  see  Dam- 
ages, 23. 

liability  of  corporation  for,  see  Corpo- 
rations, 15. 

—  wife's  land,  action  for,  see  Husband  and 

Wife,  13. 
Prosecutions   for   malicious,  see   Criminal 

Law,  28. 
Remedy  of  landowner  by,  under  Canadian 

expropriation  acts,  see  Eminent  Domain, 

1270. 
Right   to  enjoin  continuous,  see  Elevated 

Railways,  04. 
Staying  proceedings  in,  see  Injunction,  40. 
When  case  and  not  trespass  is  the  proper 

form  of  action,  see  Animals,  Injuries  to, 

302. 
■  -  deemed  a  taking  of  land,  see  Eminent 

Domain,  150. 

—  lies  by  abutting  owner  against  elevated 

railway  company,  see  Elevated  Rail- 
ways, 55. 

I.  IN  OSXIBAL iio7 

IL  TRE8PAU  UPOH  LAITD iio8 

m.  TBBSPAM  xnroN  pebmxal  prop- 

BBTT  OB  THIX08  ATTAOHBD  TO 

THB  SOIL 1 1 14 

IT.  TBBSPA88  VPOH  THB  PSBSOH . . . .   1115 

I.  nr  OBBBBAL. 

1.  What  amounts  to  a  trespaM.— 

Trespass  is  an  unlawful  act  committed  with 
violence  on  the  property  or  rights  of  an- 
other. An  action  of  trespau  is  that  which 
is  instituted  for  the  recovery  of  damages 
for   a  wrong  committed  with  immediate 


force.  5/.  /u/um  v.  Morgan's  L.  4«»  T.  R, 
&*  S.  Co.,  33  Am.  6-  Eng.  H.  Cas.  92,  39 
La.  Ann.  1063.  3  So.  Rtp.  280. 

Wliere  defendant  has  no  legal  right,  with- 
out the  consent  of  complainant,  to  place 
piers  for  a  new  bridge  where  the  attempt  is 
made  to  locate  them,  it  is  of  no  conse- 
quence whether  complainant  suffered  dam- 
age ur  not  by  the  proposed  erections  on  the 
canal  and  middle  ground,  so  far  as  com- 
plainant's rights  are  concerned.  It  is  his 
right  to  have  the  use  of  the  canal  and  its 
embankments  free  and  unobstructed  by 
defendant's  new  bridge,  and  the  act  of  the 
latter  in  its  attempt  to  infringe  that  right 
is  a  wilful  trespass  which  should  be  re- 
strained. Newaygo  Mfg.  Co.  v,  Chicago  4* 
W.  M.  R.  Co.,  29  Am.  6-  Eng.  R.  Cat.  505, 
64  Mich.  114.  30  N.  W.  Rtp.  910. 

It  was  trespass  for  defendant  telegraph 
company  to  dig  and  bore  under  a  railway 
for  the  purpose  of  carrying  its  wires  under 
the  spot  where  the  railway  crossed  a  high- 
way, the  Telegraph  Companies  Act  author- 
izing it  to  carry  its  wires  over  railways 
"  directly  but  not  otherwise. "  South  Easttrn 
R.  Co.  v.  European  &*  A.  E.  P.  Ttl.  Co., 
9  Ex.  363,  23  L.  J.  Ex.  113. 

A  traveler  on  the  highway  is  not  justified 
in  throwing  down  gates,  wrongfully  erected 
by  a  railway  company  at  the  point  where  its 
line  intersects  the  highway,  so  as  to  block 
up  the  way,  but  must  seek  his  damage  at 
law.  Ellit  v.  London  6*  S.  W.  R.  Co.,  2 
H.  fi-  N.  424.  3  /ur.  N.  S.  1008,  36  £./. 
Ex.  349. 

Defendant  company,  having  acquired  land 
ninety  feet  wide  for  the  construction  of  its 
line,  conveyed  to  plaintiff  a  portion  going 
twenty-two  feet  into  an  embankment,  which 
at  that  point  was  high.  Plaintiii  built  a 
root  house  on  his  portion,  which  fell  in,  and 
defendant  filled  up  the  hole  and  repaired 
the  embankment,  for  which  plaintiff  brought 
trespau.  The  jury  found  that  what  de- 
fendant did  was  necessary  for  the  safety  of 
the  railway,  //e/d,  that  nevertheless  it  was 
liable ;  for,  having  conveyed  the  land,  as  it 
had  a  right  to  do,  it  could  not  afterwards, 
without  notice  or  compensation,  interfere 
with  the  vendee.  McDonald  v.  Grand 
Trunk  R.  Co.,  28  U.  C.  Q.  B.  320. 

2.  What  does  not.  — A  person  who, 
while  refreshing  himself  at  a  public  house, 
keeps  his  van  standing  outside  upon  ground 
which  is  a  part  of  the  premises  of  a  com- 
pany whose  station  is  close  by,  cannot  be 


Ifp 


1108 


TRESPASS,  a-7. 


r 

K 

l| 

|i 

It 


iiii 

liiii 

iii 


charged  under  3  ft  4  Vict.  c.  97. 1 16.  ••  t 
wilful  tretpauer,  where  it  appears  that  the 
only  acceu  to  the  public  houee  was  acron 
this  ground.  WilkintOH  v.  Coffin,  33  L. 
T.  834- 

Where  an  individual  hat  an  implied,  unre* 
yoked  license  to  land  goods  upon  a  wharf, 
he  does  not  commit  a  trespass  in  ordering 
goods  to  be  delivered  there.  Davis  v.  Chau- 
taufua  Lakt  S.  S.  AsumNy,  2  N.  Y.  S.  Jf. 
365,  41  //uH  638. 

8.  Cromlug  railway  track.— By  3  & 
4  Will.  IV.  c.  34.  establishing  a  railway,  a 
party  whose  property  has  been  cut  through 
is  entitled  to  cross  the  line  at  any  point,  in 
order  to  get  to  his  land  on  the  other  side, 
unless  the  compuny,  under  the  provisions 
of  the  act,  furnishes  a  proper  method  of 
communication.  Grand JmhcUoh  R,  Co.  v. 
Whiti,  %M.&*  W.  214. 

A  landowner  who  has  been  awarded  com« 
pensation  for  the  total  separation  of  his 
land  by  the  railway,  without  method  of  com- 
munication being  provided,  lias  no  right 
afterwards  to  cross  the  track  for  the  purpose 
of  the  occupation  of  his  lands,  and  in  so 
doing  is  a  trespasser  within  the  meaning 
of  3  &  4  Vict.c.  97,  S  16.  Manning  v.  East- 
trn  Countits  It.  Co.,  it  M.  &»  IV,  237,  3 
Saitw.  Ca$.  637,  13  L./.  Ex.  265. 

4*  Tearing  up  bridge.  —  A  railroad 
was  constructed  over  the  site  of  a  highway 
bridge.  The  railroad  company  failing  to 
erect  a  new  bridge,  the  township  authorities 
gave  to  plaintiffs  the  contract  for  erecting 
a  new  bridge  on  the  railroad  right  of  way, 
claiming  that  (he  president  of  the  company 
had  agreed  thereto.  After  the  work  was 
begun,  defendants,  acting  by  authority  of 
the  railroad,  tore  up  the  bridge,  and  plain- 
tiffs brought  trespass  vi  et  armis.  Held, 
that  If  the  jury  found  that  the  president  of 
the  railroad  had  the  necessary  authority, 
and  agreed  to  the  erection  of  the  bridge  on 
the  right  of  way,  then  defendants  were  tres- 
passers, and  plaintiffs  could  recover.  Bean 
V.  Howt,  8$  Pa.  St.  360. 

5.  Pleading— Verdict— Judgment. 
—The  rule  at  common  law  that,  in  an  ac- 
tion of  trespass  against  sever&i  defendants, 
a  verdict  and  judgment  may  be  rendered 
for  or  against  one  or  more  of  them,  has  not 
been  narrowed  by  the  Indiana  statute. 
Lonitvilh,  N.  A.  &*  St.  L.  A.  L.  R.  Co.  r. 
Dm/all,  tfi  Ind.  246. 

In  an  action  of  trespass  against  a  company 
it  should  be  alleged  in  the  petition  that  it 


is  a  corporation  or  copartnership,  or  that  it 
acts  as  such.  Eying  ton  v.  Misiittippi  ^ 
M.  R.  Co.,  1 1  Iowa  502. 

n.  TBUPAW  VPOH  Lin. 

0.  In  general.* — Railroad  corporations 
may  commit  trespass.  Mobile  &»  M.  R.  Co. 
V.  MtKellar,  59  Ala.  4S8.  —  Following 
Owsley  V.  Montgomery  h  W.  P.  R.  Co.,  37 
Ala.  560. 

Railroad  companies,  acting  within  the 
limits  of  their  franchises,  and  using  due 
skill  and  care  in  the  construction  and  opera- 
tion of  their  roads,  and  having  the  right  of 
way,  are  not  liable  as  trespassers,  nor  for  in- 
juries to  outside  property  which  are  the 
natural  and  unavoidable  effect  of  the  road, 
St.  Louis.  I.  M.  &*  S.  R.  Co.  v.  Morris,  5 
Am.  &*  Efig.  R.  Cas.  48,  35  ArJt.  633. 

Trespass  will  lie  against  a  corporation. 
IVhiteman  v.  V^ihrtington  &*  S.  R.  Co.,  2 
Harr.  (Del.)  554. 

Trespass  qu  ire  clausum  /regit  will  lie 
against  a  railroad  company  or  other  private 
corporation.  Main  v.  North  Eastern  R.  Co., 
13  RicA.  (So.  Car.)  83.  —  Followed  in 
Greenville  &  C.  R.  Co.  v.  Partlow,  14 
Rich.  337. 

One  whose  land  has  been  taken  for  a  rail- 
road has  no  right  afterwards  to  enter  there- 
upon and  dig  and  carry  away  the  turf,  or 
do  any  other  act  which  in  any  degree  inter- 
rupts or  endangers  its  use  by  the  company, 
and  for  such  entry  he  will  be  liable  in  tres- 
pass. Connecticut  &*  P.  R.  R.  Co.  v.  Holton, 
33  Vt.  43.— QuoTiN(;  Jackson  v.  Rutland  & 
B.  R.  Co..  35  Vt.  159.— Followed  in  Troy 
&  B.  R.  Co.  V.  Potter,  43  Vt.  365.  Quoted 
IN  Tennessee  ft  C.  R.  Co.  v.  East  Ala.  R. 
Co.,  7S  Ala.  %\(»,  SI  Am.  Rep.  475.  Re- 
viewed IN  Vermilya  v.  Chicago,  M.  ft  St. 
P.  R.  Co.,  66  Iowa  606. 

7.  Venue.— A  railroad  charter  provided 
that  the  company  could  be  sued  only  at  its 
domicil  "except  in  actions  of  trespass." 
Held,  that  the  word  "  trespass  "  was  em- 
ployed by  the  legislature  in  its  broadest 
sense,  so  as  to  comprehend  a  variety  of 
wrongs,  whether  direct  or  indirect,  in  which 
force  was  used,  and  not  in  the  technical 
sense  of  the  common-law  term.  State  ex 
rel.  "t.  Judge,  33  La.  Ann.  954. 


'Trespass  against  railroads  for  entering  on 
and  using  lands  without  due  process  of  law,  see 
note,  10  Am.  ft  Eno.  R.  Cas.  43. 


TRESPASS.  8. 


1109 


ip,  or  that  it 
itii$$(ppi  ^ 


MB. 

corporation! 
*•  At.  a:  Co. 
Following 
R.  Co..  37 

witliin   the 

d  using  due 

n  and  opera- 

tlie  right  of 

s,  nor  for  in- 

lich  are  the 

of  the  road. 

V.  Morris,  s 

k.  623. 

corporation. 

S.  R.  Co.,  2 

igit  will  lie 
other  private 
Msttrn  R.  Co., 
OLLOWED    IN 

Partlow,   14 

Icen  for  a  rail- 
o  enter  there- 
i  the  turf,  or 
degree  inter- 
the  company, 
liable  in  tre*- 
Co.  V,  Holton, 
V.  Rutland  & 
WED  IN  Troy 
165.  Quoted 
East  Ala.  R. 
ep.  475-  Re- 
go,  M.  &  St. 

irter  provided 
ed  only  at  its 
of  trespass." 
ss"  was  em- 
its broadest 
a  variety  of 
rect,  in  which 
the  technical 
rm.    Stati  ex 


or  entering  on 
ess  of  law,  see 


And  under  the  provisions  of  the  charter, 
as  well  as  of  La.  Code  of  Practice,  the  cor- 
poration can  be  sued  for  trespass  out  of  its 
domicil  and  in  the  parisli  in  wliich  the  tres- 
pass had  taken  place.  Stalttxrtt.  s.  Judge, 
33  La,  Ann,  954.— Quoted  in  Caldwell  v. 
Vicksburg.  S.  &  P.  R.  Co.,  39  Am.  &  Eng. 
R.  Cas.  339.  40  La.  Ann.  753.  Reviewed 
IN  St.  Julian  V.  Morgan's  L.  &  T.  R.  &  S. 
Co.,  33  Am.  k  Eng.  R.  Cas.  93,  39  La.  Ann. 
1063,  3  So.  Rep.  380. 

Trespass  for  injuries  to  real  estate  or  its 
corporeal  hereditaments  cannot  be  brought 
beyond  the  jurisdiction  where  the  land  is 
aituated.  So  where  a  company  trespasses 
on  land  in  New  Jersey  it  cannot  be  sued  in 
New  York.  Huentrmund  v.  Erii  R.  Co.,  48 
How.  Pr.  {AT.  y.)  $$. 

Against  persons  committing  trespasses, 
the  Texas  statute  authorizes  suit  to  be 
brought  in  the  county  wherein  the  trespass 
was  committed.  (Paschal's  Dig.  art.  1433.) 
A  railroad  company  is  a  person  within  the 
meaning  of  this  act,  and  is  liable  to  be  sued 
in  any  county  in  which  its  ageius  may  have 
committed  a  trespass.  Bartte  v.  Houston 
4-  T.  C.  R.  Co.,  36  Tex.  648.  —  Distin- 
guished IN  Houston  &  T.  R.  Co.  v.  Oram, 
49  Tex.  341. 

In  an  action  against  a  corporation  for  a 
trespass,  brought  in  the  county  in  which 
the  trespass  is  charged  to  have  been  com- 
mitted, an  allegation  of  residence  of  de- 
fendant is  not  material  to  show  that  the 
court  had  jurisdiction  of  the  person. 
Southern  C.  P.  &*  M,  Co.  v.  Bradley.  53 
Tex.  587. 

8.  Who  may  sue.*— A  city  proceeded 
under  an  ordinance  to  condemn  land  for  a 
street,  with  the  condition  that  a  railroad 
company  should  pay  the  damages  to  the  city 
for  the  use  of  the  landowners,  and  have  a 
right  to  lay  its  tracks  thereon.  The  com- 
pany paid  the  damages  and  constructed  its 
track,  but  the  city  failed  to  pay  over  the 
damages  to  the  landowners,  and  rever- 
sioners brought  an  action  of  trespass.  He/d: 
(1)  that  the  entry  upon  the  land  either  (or 
the  purpose  of  making  a  street  or  for  the 
purpose  of  constructing  a  railroad  was  a 
trespass,  and  the  investment  of  the  money 
after  the  commencement  of  the  suit  had  no 
effect  upon  the  right  to  recover  for  the  tres- 
pass committed  before  bringing  the  suit; 

*  When  owner  of  land  uken  mav  bring  tres- 
pass, see  note,  14  Am.  ft  Eno.  R.  Cas.  335. 


(3)  that  there  waa  no  such  ouster  or  dissei- 
sin by  the  company  as  would  prevent  the 
landowners  from  maintaining  the  action. 
Baltimore  &*  O.  R.  Co.  v.  Boyd,  63  A/d.  jaf. 
—  Quoting  Murray  v.  Fitchburg  R.  Co., 
130  Mass.  101. 

Where  a  company  occupies  a  portion  of 
the  land  appropriated  to  its  use  for  depot 
and  station  purposes,  the  manner  of  its  us« 
for  these  purposes  is  m  its  discretion  ;  and 
it  is  no  concern  of  the  owner  of  the  fee. 
Even  if  it  exceeds  its  franchise  in  the  man- 
ner of  such  occupancy,  it  does  not  thereby 
disseise  the  owner  of  tlic  fee,  nor  authorize 
an  action  for  trespass  by  him,  nor  justify  a 
demand  for  damages  for  rents  and  profita 
for  such  use  and  occupation.  Peirce  v. 
Boston  &*  L.  R.  Corp.,  i\  Am.  &*  Eng.  R. 
Cas.  634,  37  Am.  &*  Eng.  R.  Cas.  359,  141 
Mass.  481,  6  A'.  E.  Rep.  96.— Distinguish- 
ing Prop'rs  of  Locks,  etc.,  v.  Nashua  &  L. 
R.  Co.,  104  Mass.  I. 

Trespasses  upon  real  property  effected  by 
an  illegal  structure  thereon  are  continuous 
in  their  nature  and  give  to  the  owner  sepa- 
rate  successive  causes  of  action  at  law  for 
damages,  from  time  to  time,  as  the  injuries 
are  perpetrated.  Pappenheim  v.  Metropol' 
Stan  El.  R.  Co.,  $0  Am.  &*  Eng.  R.  Cas.  360, 
138  N.  V.  436,  38  JV.  E.  Rep.  518,  40  N.  Y. 
S.  R.  445 ;  affirming  27  /.  *»  S.  576,  36  JV. 
Y.  i.  R.  i034,  13  A^.  Y.  Supp.  9SS. 

In  each  action  the  measure  of  recovery  is 
(or  the  damages  sustained  up  to  the  time  of 
its  commencement.  Pappenheim  v.  Metro- 
politan  El.  R.  Co.,  50  Am.  &»  Eng.  R.  Cas. 
260,  138  N.  Y.  436.  38  A^.  E.  Rep.  518,  40  N. 
Y.  S.  R.  44S ;  affirming  zy  /.  &>  S.  J76,  36 
A^.  Y.  S.  R.  1034,  13  M  Y.  Supp.  955. 

The  owner  may  also  resort  to  equity  to 
prevent  a  continuance  of  the  trespass  and  a 
multiplicity  of  actions  at  law.  Pappenheim 
V.  Metropolitan  El.  R.  Co.,  50  Am.  &*  Et^, 
R.  Cas.  360.  138  N.  Y.  436.  38  A^.  E.  Rep. 
518,  40  N.  y.S.R.^l,  affirming  27  /.  &*  S, 
576,  36  N.  Y.  S.  R.  1024,  13  A^,  K.  Supp.  95$. 

A  corporation  may  maintain  an  action  o( 
trespass  quare  clausum  (regit.  Greenvillt 
4-  C.  R.  Co.  V.  Partlow,  14  Rich.  (So.  Car.) 
237.— Following  Main  v.  North  Eastern 
R.  Co.,  12  Rich.  82. 

A  company  may  maintain  trespass  for  all 
unlawful  entries  and  acts  upon  land  taken 
by  it  for  railroad  purposes  under  its  charter, 
whenever  such  entries  and  acts  embarrass 
the  use  of  the  road  or  interfere  with  the 
exclusive  possession  o(  such  land  to  which 


1110 


TRESPASS,  O,  lO. 


1- 


!5 


m 


R  i'' 

■ii  ^1 

Hi  1 

ni^ 

m 


the  company  it  entitled.    Conntctictit  &*  P. 
R.  R.  Co.  V.  HoUoH,  yi.  Vt.  43. 

O.  Title  or  poMeaslou  neceMary  to 
maintain  the  action.—  One  who  has  a 
contract  to  erect  a  building  on  premiies, 
and  it  in  actual  pouetsion,  may  maintain 
tretpats  quart  clausum  frtgit  against  a  com- 
pany that  forcibly  entert  thereon.  Illinois 
^  St.  L.  R.  Co.  V.  Caldwtll.  17  ///.  App.  409. 

In  making  proof  of  title  in  an  action  of 
tretpass  to  realty,  when  the  title  is  put  in 
issue,  if  plaintiff  puts  in  evidence  the  deed 
only  of  his  immediate  grantor,  and  the 
grantor  is  not  the  United  States,  he  should 
show  further  that  he  is  in  possession  under 
the  deed.  McCormick  v.  Chicago,  R.  I.  &» 
P.  R.  Co.,  47  Iowa  345. 

A  company  was  sued  for  a  trespass  in 
cutting  and  carrying  away  earth,  and  an- 
iwered  admitting  the  acta  complained  of, 
but  denied  that  they  were  committed  on 
"any  lot  of  this  plaintiff,"  but  did  not  claim 
any  title  to  the  land  itself.  H*ld,  that 
plaintiff  was  not  required  to  show  paper 
title,  where  it  was  shown  that  he,  and  those 
under  whom  he  claimed,  had  been  in  pos- 
session for  nearly  too  years.  Chtsapeakt  &* 
O.  R.  Co.  V.  HicJttjf.  (A)-.)  22  S.  «'.  Rep.  441. 

A  father  gave  to  his  ton  a  '.icense  to 
enter  upon  land  under  a  pare!  agreement 
that  the  son  was  to  occupy  >,nd  pay  taxes 
thereon,  and  to  receive  a  deed  in  the  future 
upon  the  happening  of  a  certain  contin- 
gency. Subsequently  a  company  built  its 
road  across  the  I'\nd,  and  the  damages  were 
paid  to  the  father,  and  be  made  a  deed  con- 
veying the  right  of  way.  all  of  which  was 
Itnown  to  the  ton,  who  kept  silent.  Held, 
thaf  he  could  not  afterwardt  assert  title  as 
,  agp.intt  the  company  and  recover  for  treet 
cut  along  the  right  of  way,  although  he 
had  been  in  possession  for  more  than  ten 
years.  Louisville,  N  0.  &*  T.  R.  Co.  v. 
Day,  67  Miss.  327.  7  So.  Rep.  349. 

In  an  action  for  tretpass  upon  realty, 
where  plaintiff  fails  to  show  that  he  had 
postetsion  at  the  date  of  the  alleged  tres- 
pass, he  cannot  recover,  the  gist  of  the 
action  being  injury  to  the  possession.  A/as- 
ter son  V.  IVest  End  NarroW'Gauge  R.  Co., 
S  :io.  App.  575- 

The  possession,  unaccompanied  by  paper 
title,  requisite  to  furni&h  the  presumption  of 
ownership  sufRcicnt  to  •naintain  an  action 
(or  an  injury  to  the  frr  stiold,  must  be  ac- 
tual. Evidence  of  mer.'ly  occasional  entries 
•t  long  intervals  upon  an  unlnclosed  wood- 


lot  that  it  not  parcel  of  an  improved  farm 
or  connected  with  one  it  not  tufficient  to 
eatablith  the  requ<iite  postettion.  Nor  it 
payment  of  tazea  on  the  lot  evidence  of 
pouetsion.  Miller  v.  Long  Island  R.  Co., 
71  JV,  Y.  380 :  reversing  9  Hun  194. 

In  an  action  at  law  to  recover  for  an  in- 
jury in  the  nature  of  a  trespasa  to  real 
estate,  plaintifl't  rights  can  be  determined 
only  in  accordance  with  the  tituation  ezitt- 
ing  when  the  action  wat commenced ;  where 
hit  title  it  put  in  ittue  he  must  ttand  or 
fall  by  the  title  and  right  to  recover  which 
he  then  had,  and  no  other.  Dean  v.  Metro- 
politan El.  R.  Co.,  1 19  N.  V.  540,  33  N.  E. 
Rep.  io$4,  30  N.  Y.  S.  R.  81. 

10.  Right  of  landlord  or  tenant  to 
sue.  —  The  owner  of  land  cannot  bring 
trespass  quare  clausum  /regit  where  the 
premises  are,  at  the  time  of  the  tres^/ats,  in 
the  exclusive  possession  of  tenants,  and 
not  held  at  will.  Halligan  v.  Chicago  &*  R. 
I.    R.    Co.,   15   ///.    SS8.— DiSTINGUISHINO 

Starr  V.  Jackson,  11  Mass.  519;  Hinghumv. 
Sprague,  1$  Pick.  (Mau.)  103;  Curtiss  v. 
Hoyt,  19  Conn.  154;  Davis  v,  Nash,  33 
M'S.  411. 

Where  there  is  a  lease  for  yeara,  rent  to 
be  paid  by  delivery  to  the  landlord  of  a  cer- 
tain share  of  the  crops  when  mature,  the 
crops  while  growing  and  before  delivery 
are  the  property  of  the  tenant,  and  he  can 
maintain  a  suit  for  a  trespass  thereto  even 
against  one  who  purchases  the  land  from 
the  landlord.  In  such  case  a  grant  by  the 
landlord  to  a  company  it  no  detente  to  a 
tuit  by  the  tenant  for  injury  to  cropt  grow- 
ing on  the  landa  to  granted.  Chicago  &» 
IV.  M.  R.  Co.  V.  Linard,  20  Am.  6*  Eng.  R. 
Ca^.  352,  94  fnd.  319. 

A  perton  claiming  to  be  the  owner  of 
land  at  against  all  the  world,  and  in  posses- 
sion thereof  by  a  tenant,  may  maintain  an 
action  against  a  mere  wrong-doer  for  injuries 
done  to  the  land,  although  he  has  never  had 
personal  possession  of  the  land,  and  al- 
though his  title  to  the  land  may  be  ever  so 
defective.  Such  possession  and  claim  of 
ownership  art  prima  facie  evidence  of  owner- 
ship as  against  any  person,  and  are  conclu- 
sive evidence  of  ownership  ar<  against  a  mere 
wroni{-doer.  A  mere  wrong-doer  cannot 
dispuue  the  title  of  the  person  so  in  posses- 
sion <tnd  claiming  ownership.  Pacific  R, 
Ci.  V.  Walker,  12  Kan.  601. 

A  company  is  not  liable  to  a  tenant  for  a 
trciipass  committed  by  its  contractors,  where 


n  proved  farm 
sufficient  to 

■ion.  Nor  ii 
evidence  of 

ttand  R.  Co., 

»94. 
er  for  an  in- 
spaM  to  real 

determined 
ituation  exist- 
enced ;  where 
lust  atand  or 
ecover  which 
•/««  V.  Metro- 
540,  aj  N.  E. 

>r  tenant  to 

cannot  bring 
It  where  the 
lie  tres|/4ss,  in 

tenants,  and 

Chicago  &*  S. 

ITINCUISHINO 

Hinghumv. 

33;  Curtiss  V. 

V,  Nash,  33 

years,  rent  to 
dlord  of  a  cer- 
in  mature,  the 
efore  delivery 
It.  and  he  can 

thereto  even 
he  land  from 
I  grant  by  the 

defense  to  a 

0  crops  grow* 

Chicago  Ax 

m.  6-  Eng.  A 

the  owner  of 
ind  in  posses- 
f  maintain  an 
>er  (or  injuries 
has  never  had 
land,  and  al- 
lay  be  ever  so 
ind  claim  ol 
:nce  of  owner- 
id  are  conclu- 
igainst  a  mere 
-doer  cannot 
so  in  posses- 
.     Pac$/lc  E. 

i  tenant  for  a 
'actors,  where 


TRESPASS,  11-13. 


1111 


the  tenant  only  had  a  verbal  lease  of  which 
the  company  had  no  notice,  and  was  not  in 
possession  at  the  time  the  contract  was 
made.  McKintty  v.  Chicago,  S.  F.  &»  C.  R. 
Co.,  40  Mo.  App.  449. 

Where  there  are  apt  words  in  a  writing  to 
constitute  a  lease  of  lands  for  farming,  and 
giving  exclusive  occupation  to  the  tenant, 
although  the  rent  is  to  be  returned  in  kind  by 
a  share  of  the  crops,  the  landlord  is  out  of 
possession,  and  cannot  maintain  trespass. 
Ntw  Jersey  &»  M.  R.  Co.  v.  Van  Syckle,  37 

;v./ £.  496. 

If  a  company,  in  violation  of  a  contract 
with  the  landlord,  enters  and  commits  a 
trespass  upon  land  held  by  a  tenant,  it  is 
liable,  in  an  action  on  the  case,  to  the  ten- 
ant for  the  damages  sustained  by  him  ; 
otherwise  if  there  is  no  contract  with  the 
company  by  which  the  tenant  is  protected 
in  his  possession  of  the  premises.  Louis- 
ville &*  N.  K.  Co.  V.  Faulkner,  2  Head 
( Tenn.)  65. 

11.  Parties  defendant.— Individuals 
entering  upon  the  land  of  another,  and  tres- 
passing on  the  same,  and  assuming  and 
claiming  to  act  by  authority  u(  a  railroad 
corporation,  in  doing  acts  which  the  corpo- 
ration had  no  legal  right  to  do,  are  individ- 
ually liable  for  tiicir  trespasses.  Waller  v. 
Martin,  17  B.Mon.  (Ay.)  181. 

In  an  action  for  appropriating  plaintiff's 
lots  as  depot  grounds,  the  defense  ;  1  v.ed 
was  that  the  alleged  trespass  wascok.imuted 
by  another  company,  a  corporation  still  ex- 
istmg  and  fully  organized.  The  testimony 
showed  that  such  other  company  was.  in 
fact,  the  defendant  under  that  name.  Held, 
that  defendant  was  liable,  and  the  evidence 
did  not  present  a  case  of  one  road  aiding  in 
the  construction  of  another.  DeLissa  v. 
Mis  tour  i  Fac.  R.  Co.,  36  Mo.  App.  706. 

An  entry  without  bond  on  land  in  the 
line  of  one  railway,  by  contractors  employed 
by  another  company,  which  is  the  principal 
stockholder  in  'he  first  company,  will  not 
authorize  a  suit  for  trespass  against  the  first 
company,  although  this  company  filed  a 
bond  within  four  days  after  the  suit  was  com- 
menced. Heller  v.  North  *•  W.  Branch  R. 
Co.,  148  Pa.  St.  563.  24  Atl.  Rep.  114. 

A  company  made  a  contract  with  an  in- 
dividual for  the  construction  and  ballasting 
of  its  road.  The  contractor,  in  ballasting  the 
road,  made  a  track  across  plaintiff's  land  to 
a  gravel  pit  on  adjoining  land.  Held,  ihut 
the  company  was  not  liable  for  the  trespass, 


the  track  being  made  without  its  authority. 
and  being  merely  collateral  to  the  work  to 
be  performed  under  the  contract.  Payne  v. 
Fredericton  R.  Co.,  1 3  New  Brun.  497. 

12.  Declaratiou  or  complaint.— In 
a  suit  against  a  company  for  damages  for 
taking  a  portion  of  a  mining  claim  and 
cutting  timber  thoreon,  a  complaint  show- 
ing an  entry  without  permission  on  the 
claim  in  plaintiff's  possession  and  the  doing 
an  injury  to  the  soil  and  timber  sufficiently 
avers  possession,  entry,  and  damage.  Jack- 
son v.  Dines,  13  Colo.  90,  31  Pac.  Rep.  918. 

In  such  case,  where  the  complaint  con- 
tains no  averment  of  citizenship  on  the  part 
of  plaintiffs,  but  there  is  no  issue,  objection, 
or  specific  assignment  of  error  in  that  re- 
gard by  defendant  below,  it  will  not  be 
considered  on  appeal,  /ackson  v.  Dines,  13 
Colo.  90,  21  Pac.  Rep.  918. 

If  the  owner  r>f  land  is  disseised  while  in 
possession,  he  may  maintain  trespass ;  and 
it  is  immaterial  that  the  declaration  alleges, 
as  an  aggravation  of  the  entry,  acts  which 
plaintiff  is  not  permitted  to  prove,  Murray 
V.  Fitchburg  R,  Co.,  130  Mass.  99,— DISTIN- 
GUISHING Bartlett  V.  Perkins,  13  Me.  87. — 
Quoted  in  Baltimore  &  O.  R.  Co.  v.  Boyd, 
63  Md.  325. 

13.  DofenscB,  generally.  —  Proof 
which  will  support  the  plea  of  liberum  tene- 
mentum  is  a  complete  defense  to  trespass 
quare  clausum.  Chicago  &*  W,  I.  R.  Co.  v. 
Slee,  33  ///.  App.  416. 

As  to  when  a  company  is  justified  in  en- 
tering upon  land  under  a  plea  of  liberum 
ietuwentum,  see  Chicago  &*  W.  I,  R.  Co.  v. 
Slee,  33  ///.  App.  416. 

Where  one  having  a  license  to  enter  upon 
the  lands  of  another  makes  entry  thereon, 
using  such  force  as  is  necessary  for  that 
purpose,  he  cannot  be  held  liable  for  a  tres- 
pass on  real  estate,  although  he  may  render 
himself  liable  for  any  other  trespass  com- 
mitted at  the  same  time,  as,  for  example,  to 
the  person,  Willougkby  v.  Northeastern  R. 
Co.,  43  Am.  &*  Eng.  R.  Cas.  660,  32  So.  Car. 
410.  II  5.  £".  Rep.  339. 

Defendant  was  sued  for  trespass  to  land, 
claimed  to  belong  to  plaintiff,  but  which 
had  been  taken  and  used  for  a  railway. 
Defendant  was  superintendent  of  govern- 
ment railways,  and  application  was  made 
for  a  stay  of  proceedings  on  an  affidavit 
alleging  that  the  trespass  was  committed  by 
him  in  the  employ  of  the  governr  -nt  as 
Mill)    siipi'rii.tendent,  and    not   otherwise. 


Rtf? 


•fT" 


1113 


TRESPASS,  14-16. 


Plaintiff  in  answer  swore  that  the  action 
was  brought  against  defendent  (or  person- 
ally  trespassing  on  his  land,  and  denied  that 
the  land  had  been  legally  taken  by  the  gov- 
ernment. ////</,  that  the  court  ought  not, 
on  a  summary  application,  to  stay  the  pro- 
ceedings, but  should  leave  defendant  to 
resist  the  action  by  plea  in  tlie  ordinary 
way.     Milner  v.  Prydges,  i8  Nrtv  Brun.  1 1 3. 

14.  Plea  or  answer.— Trespass  against 
a  company,  for  entering  upon  plaintiff's 
close  with  men,  etc.,  and  digging  up  and 
carrying  away  eanth,  etc.  The  record  did 
not  show  that  the  injuries  were  committed 
by  the  company  when  acting  under  its  char- 
ter, or  in  the  construction  of  its  road.  Held: 
(1)  that  it  could  not  be  presumed  that  they 
were  so  committed;  (2)  that  the  company, 
if  it  desired  to  avail  itself  of  such  defense, 
should  have  set  it  up  by  plea.  Crawfords- 
vilte  &*  11".  R.  Co.  V.  Wright.  5  Ind.  252. 

In  an  action  of  trespass  quart  clausum 
/regit,  title  to  the  land  may  be  given  in  evi- 
dence under  the  plea  of  not  guilty;  but 
matter  admitting  the  trespass,  and  seeking 
to  justify  it,  as  leave  and  license,  must  be 
specially  pleaded.  Httfiild  v.  Central  R. 
Co.,  29  N.  J,  L,  571 ;  reverting  29  N.  J. 
L.  206. 

16.  Evidence— Burden  of  proof.— 
In  an  action  for  trespass  to  real  estate,  by 
which  permanent  injury  to  it  is  dune,  if  the 
property  has  a  rental  value  the  deprecia- 
tion in  the  annual  rental  value  caused  by 
the  injury  may  be  shown,  in  order  to  show 
how  much  the  value  of  the  real  estate  was 
diminished  by  the  trespass.  Schrotdtr  v. 
De  Graff,  S  Am.  5*  £■«/.  R.  Cas.  298,  38 
Minn.  299,  9  A'.  IV.  Rep.  857. 

Though  a  company  may  inadvertently 
remove  soil  from  plaintifl's  land,  it  is  liable 
for  at  least  nominal  damages :  but  evidence 
that  the  soil  was  again  replaced,  upon  the 
company's  attention  being  called  to  it,  is 
admissible  m  mitigation  of  damages.  Flynt 
V.  Chi.>mo,  R.  Sf  Q.  R.  Co.,  38  Mo  Apt>  94. 

Where  a  claim  is  made  for  trespass  and 
wajte,  some  amount  of  damages  must  be 
shown  in  order  to  entitle  plaintiff  to  a  judg- 
ment. Murtfeldt  V.  New  York,  W.  S.  *• 
B.  R.  Co.,  25  Am.  &*  Eng.  R.  Cas.  144,  102 
N.  Y.  703.  I  Silv.  App.  93,  7  N.  E.  Rep.  404, 
2  A'.   Y.  S.  R.  444 ;  affirming  34  Hun  632. 

Defendant  company  leased  to  plaintiff  a 
quantity  of  iron  rails  with  which  plaintiff 
constructed  a  railway  upon  her  land.  The 
lease  agreement  contained  a  clause  providing 


that  in  case  of  condition  broken  the  com- 
pany  should  have  the  right  to  take  posses- 
sion and  remove  the  rails.  Plaintiff  failed  to 
pt^y  the  rent,  and  the  company  entered  upon 
her  land  and  removed  the  rails,  claiming 
that  the  agreerii>*nt  gave  to  it  a  license 
to  enter.  Plaintih  objected  to  defendant's 
proceedings  and  was  forcibly  removed  from 
the  track,  where  she  had  placed  herself.  On 
the  trial  plaintiff  admitted  that  tli< 
ment  had  been  signed  by  her,  and  iliut  she 
claiineil  under  it.  Held:  (1)  that  defendant 
had  the  right  to  establish  its  defense  by  the 
cross-examination  of  plaintiff's  witnesses, 
and  that  a  refusal  to  allow  the  written 
agreement  to  be  read  at  that  time  without 
proof  of  other  signatures  than  that  of 
plaintiff  was  erroneous  ;  a  subsequent  read- 
ing of  the  contract  as  a  part  of  the  testi- 
mony did  not  cure  such  error;  (2)  that  the 
entry  by  defendant,  even  if  the  force  used 
constituted  an  as.sault,  did  not  make  it 
guilty  of  trespass  ab  initio.  I  f  an  assault  was 
committed  plaintiff  has  her  proper  action. 
Willoughby  v.  Northeastern  R.  Co.,  43  Am. 
&*  Eng.  R.  Cas.  660,  32  So.  Car.  410,  11  S. 
E.  Rep.  339. 

10.  Damages,  generally.*— In  tres- 
pass for  disturbing  the  bed  of  a  turnpike 
road,  by  biiildirg  a  railroad  thereon,  the 
measure,  of  danv.-xges  is  the  damn};e  actually 
sustained  by  reas,>>i  of  the  .nets  of  defend- 
ant, not  the  entile  val'.i2  of  the  land  com- 
posing the  bed  of  the  'oad.  Stockton  &>  L. 
Gravel  Road  Co.  v.  Stockton  6-  C.  R.  Co.,  J3 
Cal.  II. 

The  only  damages  plaintiffs  could  recover 
under  their  declaration  in  trespass  (if  they 
were  not  entitled  to  exemplary  damages) 
were  damages  done  to  their  land,  and  their 
rights  as  owners  of  the  close  or  lot  by  the 
trespasses  complained  of  in  the  declaration, 
that  is  to  say,  damages  caused  by  the  acts 
of  defendant  in  having  on  various  daysand 
times  within  three  years  before  the  institu- 
tion of  the  suit  driven  large  cars  drawn  by 
locomotives  "  upon  and  over  their  said 
close."  Baltimore  6*  O.  R.  Co.  v.  B<^d,  63 
Md.  325. 

In  an  action  for  malicious  trespass, 
though  no  estimate,  in  dollars  and  cents,  of 
the  amrtunt  of  iIk  actual  damages  sustained 
is  given  by  any  .vitness,  the  jury  is  not  lim- 


*  Value  of  impiovements  put  upon  land  Mt  off 
again!)!  damage  c  luscd  by  trespass,  see  note,  93 
Am.  &  En(j,  R.  Cis.  107. 


TRESPASS.  17,  18. 


1113 


en  the  coin- 
take  posses- 
itifT  failed  to 
sntered  upon 
ilt,  claiming 
it  a  license 
>  defendant's 
:moved  from 
herself.  On 
it  the  .ixree- 
ind  ihat  site 
at  defendant 
:fcnse  by  the 
s  witnesses, 
the  written 
time  without 
hiin    that  of 
eqiient  read- 
of  tl)e  testi- 
(2)  that  the 
e  force  used 
not  make  it 
n  assault  was 
roper  action. 
Co.,  43  Am. 
\r.  410,  1 1  S. 

r.*—  In  tres- 
>f  a  turnpike 
thereon,  the 
nn}(t'  actually 
ts  of  defend- 
le  land  com- 
UocktOH  &*  L. 
•  C.  R.  Co.,  53 

could  recover 
ipasft  (if  they 
iry  damages) 
lid,  »iid  their 
or  lot  by  Uie 
;  declaration, 
I  by  the  acts 
ous  days  and 
!  the  institu- 
ars  drawn  by 
r  their  said 
*.  V.  Boyd,  63 

us  trespass, 
and  cents,  of 
ges  sustained 
ry  is  not  lim« 

on  land  set  off 
s,  see  note,  93 


ited.  in  determining  such  amount,  to  nom* 
inal  damages.  IVampach  v.  St.  Paul  &*  S. 
C.  Jf.  Co.,  22  AftHH.  34,  19  Am.  Ky.  Rtp.  421. 

For  unlawful  excavation  and  removal  of 
his  soil,  a  party  is  entitled  to  recover,  not 
the  cost  of  refilling,  but  the  amount  of  the 
dimWiution  of  the  value  of  the  property  in- 
jured by  such  excavation  and  removal. 
Karst  V.  St.  Paul,  S.  «S-  T.  F.  R.  Co.,  22 
Afinn.  118.  —  FoixOiVED  IN  Baldwin  v. 
Chicago.  M.  &  St.  P.  R.  Co.,  27  Am.  &  Eng. 
R.  Cas.  402,  35  Minn.  354. 

A  trespass  consisted  in  constructing  a 
railroad  across  a  farm  without  the  right  to 
do  so  having  been  acquired  by  ascertaining 
damage  and  paying  compensation  to  the 
owner.  If  eld,  that  if  the  tics  and  rails  in- 
creased tlie  value  of  the  farm,  that  should  be 
considered  in  determining  the  amount  of 
damages ;  but  if  the  farm  was  no  way  bene- 
fited ur  enhanced  in  value  by  the  ties  and 
rails  being  laid  across  it,  no  deduction  from 
the  damage  done  to  the  farm  should  be 
made  on  account  of  the  value  of  the  ties 
and  rails.  Schrotder  v.  Dt  Graff,  5  Am.  «S* 
Eng,  R.  Cas,  ao8,  28  Minn.  299,  9  N.  IV. 
Rtp.  8$7. 

Costs  incurred  in  preparing  a  bill  for  an 
injunction  cannot  be  reco/cred  in  the  ac- 
tion of  trespass  for  taking  possession  of 
plaintiff's  land.  Abthorp  v.  Btdfofd  &*  C. 
R.  Co.,  8  L.  T.  200. 

Plaintiff  was  in  possession  of  certain 
lands  under  an  oral  agreement  of  purchase 
at  $4 JO  payable  in  bricks  deliverable  as  de- 
manded, of  which  $100  worth  had  beer  de- 
manded and  delivered.  Defendant,  wi'diotit 
making  any  compensation  or  taking  any 
steps  under  the  statute  therefor,  built  its 
railway  in  front  of  the  land  so  as  to  interfere 
with  plaintiff's  right  of  access,  whereupon 
an  action  was  brought  and  damages  re- 
covered by  plaintiff,  he  being  treated  as 
entitled  to  the  whole  estate  in  the  land  and 
the  injury  permanent,  reducing  the  value. 
Htld,  that  the  company  was  a  trespasser, 
and  could  not  justify  the  acts  complained 
of  under  the  statute ;  that  substantial  dam- 
ages, on  proof  of  them,  were  recoverable  for 
the  disturbance  of  the  possession,  but  in  a 
first  action  only  nominal  damages  for  the 
injury  to  the  reversion.  Alason  v.  Soitth 
Norfolk  K.  Co..  19  Ont.  132. 

17.  DoNtroy iiig  crops  —  it  o  11 1  n  I 
valun.  — In  an  action  to  recover  damages 
for  a  trespass  alleged  to  have  been  com- 
mitted by  destroying  plaintitT's  fcncts  ami 


by  trampling  upon  and  destroying  the  grain 
and  herbage  growing  on  his  land,  plaintiff 
cannot  recover  for  injury  done  to  the  grain 
by  the  cattle  of  a  third  person,  for  any 
period  of  time  after  the  original  entry  and 
trespass.  Btrry  v.  San  Francisco  **  A^.  P. 
R.  Co.,  JO  Cal.  435. 

The  measure  of  damages  against  a  com- 
pany v/nich,  as  a  naked  trespasser  upon 
inr!osed  land,  so  uses  its  possession  as  to 
prevent  the  making  of  crops  is  not  the 
supposed  value  of  the  crops  that  might 
have  been  made,  but  the  rental  value  of  the 
land,  as  also  the  value  of  fences  destroyed 
or  other  specific  injury  dir«ctly  mflicted. 
Houston,  E.  5*  W.  T.  R.  Co.  v.  Adams,  20 
Am.  &*  Eng.  R.  Cas.  246,  63  Ttx.  200. 

In  an  action  to  recover  damages  for  tres- 
pass upon  certain  lands  the  jury  found  that 
defendant  had  without  authority  taken  pos- 
session of  one  twelfth  of  an  acre  of  plain- 
tiff's lands,  of  the  value  of  fifty  dollars  per 
acre,  that  no  damage  had  been  done  to  the 
land  itself,  end  that  plaintiff  was  not  en- 
titled to  recover  anything  for  restoring  the 
soil,  but  allowed  him  the  sum  of  fifty 
doMtrs  as  the  rental  value  of  the  land  occu- 
pied by  defendant  for  four  and  one  half 
years.  Htld,  that  the  verdict  was  excessive. 
Htndtrson  v.  Chicago,  R.  I.  &*  P.  R.  Co.,  83 
/owfi  221,  48  A'.   IV.  Rtp  1029. 

V/here  a  railroad,  by  mistake,  occupies 
the  land  of  another  without  his  consent,  the 
law  will  not  imply  a  contract  to  pay  to  the 
owner  such  sum  for  the  use  as  he  has  noti- 
fied t»ie  trespasser  will  be  charged  there- 
for during  the  time  it  occupies  the  same. 
In  such  case  the  proper  measure  of  damages 
is  what  the  owner  could  have  leased  the 
land  for  if  defendant  had  not  inadvertently 
occupied  it.  Galveston  IVkarf  Co.  v.  Gulf, 
C.  &*  S.  F.  R.  Co.,  36  Am.  &-  Eng.  R.  Cat, 
668,  72  Tex.  454.  10  S.  IV.  Rtp.  537. 

18.  Interest  ou  damoKUM.— In  ascer- 
taining the  damages  for  a  trespass  tc  lands 
and  removing  material  therefrom,  the  jury 
may,  in  their  discretion,  add  to  the  value  of 
the  material  taken  interest  thereon  at  six 
(>er  cent,  per  annum,  without  finding,  as  in 
suits  on  contract,  that  there  has  been  un- 
reasonable delay  of  payment.  Pittsburgh, 
Ft.  H".  &*  C.  R.  Co.  V.  Swinney.  97  Ind.  $86. 
— DiSTiNC.tMSHiNr-  Rogers  v.  West,  9  Ind. 
400;  Borum  1/.  Pouts,  15  Ind.  jo ;  Reed  v. 
Helm,  1$  Ind.  428,  Frazer  v.  Boss,  66  Ind. 
I ;  Dobcnspcck  v.  Armel.  11  Ind.  31  ;  Bissell 
V    Hopkins,  4  Cow.  (N.  Y.)  53;   Pckin  v. 


% 


1114 


TRESPASS,  10-21. 


It 


II 


Reynolds,  31  111.  539;  Hoyt  v.  Gelston,  13 
Johns.  (N.  Y.)  139. 
10.  Punitive  or  exemplary  dam- 

ages.— Ill  actions  of  trespass  to  real  estate, 
punitive  or  exemplary  damafjes  can  properly 
be  awarded  only  where  the  trespass  was 
«anton,wilfui,  or  malicious.  CarUv.  Union 
Dtpot,  St.  R.  &»  T.  Co.,  33  Minn.  loi,  30 
N.  W.  Rep.  89. 

Where  a  company  has  condemned  a  right 
of  way  it  has  a  right  to  use  it  in  taking  dirt 
from  one  place  to  another,  and  the  land- 
owner cannot  recover  damages  on  account 
of  the  unsightliness  of  his  plantation  or  its 
■apposed  unhealthiness  from  water  stand- 
ing in  the  excavations,  or  the  inconvenience 
uf  crossing  the  right  of  way;  and  he  cannot 
recover  punitive  damages  because  the  com- 
pany encroaches  a  little  on  his  land,  where 
there  is  no  evidence  of  m<^^1ice.  'New  Orleans, 
B.  R.,  V.  6-  Af.  R.  Co.  *•.  Brown,  64  Miss. 
479,  I  So.  Rep.  637. 

20.  Treble  damages.— Where  a  com* 
pany  is  authorized  by  its  charter  to  enter 
upon  land  and  cut  timber  upon  making 
application  for  the  appointment  nf  disinter- 
ested freeholders  to  assess  the  damages,  and 
the  charter  provision  is  complied  with,  it  is 
not  liable  for  treble  damages  under  a  statute 
which  provides  for  such  damages  against 
persons  knowingly  committing  trespass.  If 
the  company  acted  in  good  faith  it  is  only 
liable  for  actual  damages.  Lindell  v.  Han- 
nibal  &*  Si.  /.  R.  Co.,  2$  Mo.  550. 

It  is  the  actual  damages  suffered  which 
are  allowed  to  be  trebled  when  the  trespass 
is  wilful  and  intentional ;  the  distinction 
being  that  when  the  trespass  is  casual  or 
involuntary,  single  damages  are  given,  but 
when  the  trespass  is  wilful,  they  are  trebled. 
Oregon  &*  C.  R.  Co.  v.  Jackson,  3i  Oreg. 
360,  28  Pac.  Rep.  74. 

III.  TBZ8PA88  VFOK   PBBMITAL  PBOPUTT 
OB  THIIIOI  ATTAOHBD  TO  THB  lOIL. 

21.  lYIion  tlie  action  lieii.  —  The 
owner  of  trees  cut  from  his  land  b)  a  tres- 
passer cannot  be  divested  of  his  title  thereto, 
although  the  trcfipnsser  has  converted  them 
into  railro.id  tics  and  sold  them  to  a  bona 
fide  purchaser,  the  rule  being  established, 
with  scarcely  an  exception,  that  where  the 
identity  of  the  article  can  be  traced,  the 
right  of  property  continues  to  exist  in  the 
original  owner.  Siruhhee  v.  Cincinuaii  R. 
Co.,  7"  Ky.  4R1.-CKITICISING  Isle  Royale 
Min,  Co.  V.  Hfrtin,  37  Mich.  337;  Heard  v. 


James,  49  Mias.  336.  Reviewing  Lake 
Shore  &  M.  S.  R.  Co.  v.  Hutchins,  33 
Ohio  St.  571;  Wetherbee  v.  Green,  33 
Mich.  31 !. 

A  person  committing  a  wilful  and  mali- 
cious trespass  upon  the  property  of  »  other, 
under  circumstances  involving  unavoidable 
injury  to  persons  or  property,  is  responsible 
to  any  person  injured  by  such  trespass.  It 
is  not  necessary  that  he  should  intend  to 
injure  the  particular  person  suffering.  So 
where  a  person  wantonly  and  maliciously 
takes  out  and  throws  away  pins  used  for 
coupling  cars,  for  the  purpose  of  injuring 
the  railroad,  he  is  liable  for  an  injury  to  an 
employ6  of  the  company  resulting  there- 
from. Muuger  v.  Baker,  65  Barb.  (N.  Y.) 
539-  —  OuoTiNO  Vandcnburgl'.  v.  Truax,  4 
Den.  (N.  Y.)  465. 

In  such  case  a  charge  to  the  jury  that  if 
defendant  took  the  pins  out,  and,  in  the 
ordinary  use  and  management  of  the  train, 
plaintiff  while  attempting  to  couple  the  cars, 
and  without  any  want  of  care  or  attention 
on  his  part,  or  on  the  part  of  any  person 
in  charge  o'  the  train,  sustained  an  injury 
by  reason  oi  such  removal  of  the  pins, 
defendant  wa»  li,ible  to  him  in  damages, 
is  substantially  correct.  Munger  v.  Baker, 
65  Barb.  (N.  Y.)  539.— DiSTiNGUlSHiNO 
Ryan  v.  New  York  C.  R.  Co.,*  35  N.  Y.  210; 
^'andenbiirgh  v.  Truax,  4  Den.  (N.  Y.)  465  ; 
Scott  V.  Shepherd,  2  W.  Bl.  892,  3  Wils.  403  ; 
Guille  V.  Swan,  19  Johns.  (N.  Y.)  381. 

Plaintiff,  an  expressman,  by  direction  of 
the  owner  took  possession  of  household 
goods,  at  her  New  York  residence,  for  ship- 
ment and  removal  to  a  residence  in  the 
country.  After  he  had  removed  a  portion 
of  the  goods  from  the  cars  to  the  residence, 
the  employes  of  defendant,  a  rival  concern, 
took  possession  of  the  remainder  of  the 
goods,  and  removed  the  same,  against  the 
remonstrance  and  objection  of  plaintiff,  and 
after  notification  by  him  that  the  same  were 
in  his  possession.  In  an  action  to  recover 
damages  for  trespass,  defendant  was  held 
liable  for  nominal  damages  and  costs. 
Held,  that  the  judgment  should  be  nifirmed. 
Matlke^us  v.  Smith's  Exp.  Co.,  1  Misc.  (N. 
Y.)  238. 

A  company  has  no  right,  for  the  purpose 
of  repairing  its  fences,  to  take  timber  or 
p«jles  from  the  adjoining  lands  not  owned 
by  it.  Carey  v.  Chicago,  Af  &»  Si.  P.  R. 
Co.,  20  Am.  &»  Eng.  K.  Cas.  469,  61  Wis.  Ji, 
20  A'.   tY.  Rep.  648. 


TRESPASS,  22-28. 


1115 


FEWING  Lake 
Hutching,  33 
V.  Green,    33 

Iful  and  mali- 
•ty  of  ii  other, 
;  unavoidable 
is  responsible 
1  trespass.  It 
uld  intend  to 
suflTering.  So 
d  maliciously 
pins  used  for 
se  of  injuring 
n  injury  to  an 
suiting  there- 
Barb.  (JV.  V.) 
1'.  V.  Truax,  4 

ie  jury  that  if 
t,  and,  in  the 
t  of  the  train, 
ouple  the  cars, 
e  or  attention 
of  any  person 
ined  an  injury 
of  the  pinp. 
[)  in  damages, 
•(f/T  V.  linker, 
ISTINGUISHINr. 

,•35  N.  Y.  310; 

n.  (N.  Y.)46S: 
93, 3  Wils.  403  ; 

Y.)38'- 
ty  direction  of 

of  household 
Icnce,  for  ship- 
sidence  in  the 
lOvcd  a  portion 
>  the  residence, 
I  rival  concern, 
minder  of  the 
ne,  against  the 
of  plaintiff,  and 

the  same  were 
ion  to  recover 
dant  was  held 
;s  and  costs. 
j|d  be  nflirmcd. 
:o.,  I  Misc.  (N. 

for  the  purpose 
takr  timber  or 
nils  not  owned 
r  &-  Si.  p.  R. 
469,61  If 'is.  7  i, 


22.  Venue.  —  The  action  of  trespass  is 

strictly  personal,  and  may  be  brought  any- 
where, regardless  of  the  place  where  the 
supposed  injury  happened.  So  where  the 
action  is  against  a  railroad  for  cutting  timber, 
it  need  not  be  brought  in  the  county  where 
the  land  is  situate.  Mo.  Gen.  St.  1865,  ch. 
63,  §  3,  does  not  apply  to  actions  of  that  de- 
scription, but  contemplates  those  where  the 
suit  was  in  the  nature  of  a  proceeding  in 
rtiH  affecting  the  land  itself.  Hannibal  &* 
SI.  J.  R.  Co.  V.  Mahonty,  42  Mo.  467.— Re- 
viewed IN  Sweet  V.  Maupin,  65  Mo.  65. 

An  action  for  trespass  to  pei'sonal  prop- 
erty (as  an  elevator  on  the  right  of  way  of  a 
railroad) committed  in  another  state  maybe 
maintained  in  the  courts  of  Missouri.  Grtgg 
v.  Union  Pac.  R.  Co.,  48  Mo,  App.  494. 

23.  Wlio  may  8I10.  —  Children  and 
'leirs  at  law  are  entitled  to  sue  for  damages 
to  land  after  it  has  descended  to  them  and 
is  ii!  their  possession  as  heirs  of  their  father, 
and  fur  damages  to  crops  cultivated  on  the 
land.  No  administration  of  their  father's 
estate  is  necessary  to  enable  them  to  bring 
suit.  Houston  6-  T,  C.  R.  Co.  v.  Knapp,  51 
Tex.  569, 

24.  Declaration  or  petition. — A  dec- 
laration, in  an  action  of  trespass  or  case  for 
the  taking  of  or  injury  to  personal  property, 
which  does  not  contain  a  description  of  the 
property  taken  or  injured  is  bad  on  de- 
murrer. RandUttt  V.  Judkins,  33  Am.  &* 
Eng.  R.  Cas.  478,  77  Me.  114. 

A  petition  in  trespass  whicli  alleges  the 
convernion  of  trees  cut  and  carried  away 
from  plaintiff's  land  sets  out  a  good  cause 
of  action  at  common  law,  and  will  be  good 
on  demurrer,  although  it  calls  for  treble 
damages  awarded  by  the  statute  and  fails 
to  state  that  the  defendant  has  no  interest 
or  right  in  the  trees,  or  is  otherwise  insulTi- 
cient  as  a  statutory  pleading;  neither  is  it 
bad  for  failing  to  state  in  terms  that  the 
trees  were  the  property  of  plaintiff.  Allan' 
tic  &*  P.  R.  Co.  V.  Freeman,  61  Mo.  80. 

25.  DefenseH.  —  The  owner  of  the  fee 
cannot  maintain  trespass  against  a  section 
man  on  a  railroad  for  cutting  and  carrying 
away  the  hay  and  grass  growing  within  the 
lines  of  the  location,  under  instructions 
from  the  general  manager  and  road  master 
to  cut  and  burn  tlie  bushes,  grass,  and  rub- 
bish within  his  section.  Hayden  v.  Shillings. 
39  Am.  &*  Eng.  R.  Cas.  316,  78  Me.  413,  6 
All.  Rep.  830.  —  Followed  in  Lander  v. 
Bath,  85  Mc.  141. 


In  trespass  for  taking  goods  it  appeared 
that  they  came  to  plaintiff's  warehouse  con< 
signed  to  one  P.  and  were  seized  there  by 
defendant  under  a  writ  of  replevin  sued  out 
against  P.  by  one  H.  P.  asserted  that  he 
had  bought  the  goods  from  H.,  which  H. 
denied,  and  the  judge  before  whorr  the  case 
was  tried,  without  a  jury,  found  that  the 
goods  belonged  to  H.  Held,  that  defend- 
ant, not  being  a  mere  wrong-doer,  was  at 
liberty  to  dispute  plaintiff's  title  and  set  up 
the  title  of  H.  under  a  plea  of  not  possessed, 
and  that  he  was  tiicrefore  entitled  to  a  ver- 
dict on  the  finding.  Greal  Weslern  R.  Co. 
V.  McEwan,  30  U.  C.  Q.  B.  J59. 

20.  Evidence. — Inanactionfordamages 
for  trespass  and  destruction  of  property  by 
a  company,  the  title  to  the  prc^jcrty  maybe 
offered  in  evidence  in  aid  of  the  proof  of 
peaceable  possession.  Nicol  v.  Illinois  C. 
R.  Co.,  44  La.  Ann.  816,  li  So.  Rep.  34. 

27.  E)nniageM. — The  proper  measure  of 
damages  for  taking  cordwood  is  the  value 
of  the  wood  with  six  per  cent,  interest  from 
time  of  taking.  Charles  v.  SI.  Louii  S*  I, 
M.  R.  Co.,  58  Mo.  458. 

Timber  w,is  cut  from  lands  of  H.  by  tres- 
passers, who,  by  their  labor,  converted  it 
into  cordwood  and  railroad  ties,  increasing 
its  value  threefold.  It  was  then  sold  to 
an  innocent  piirchasci',  who  was  sued  by  B. 
for  the  value  of  the  wood  and  ties.  Held, 
ttiat  whatever  might  be  the  rule  of  damages 
as  against  innocent  purchasers,  B.  could  not 
recover  the  value  of  the  timber  as  enhanced 
by  the  labor  of  the  wrong-dccrs,  after  it  was 
severed  from  the  realty.  Lake  Shore  6^  M, 
S.  R.  Co.  V.  Hutihins,  32  Ohio  SI.  571.— 
Reviewed  in  .Stiubbcc  v.  Cincinnati  R.  Co., 
78  Ky.  48i« 

Hill's  Oregon  Code,  §  338,  fairly  con- 
strued, includes  not  merely  the  value  of 
the  timber  or  cut  wood,  but  such  damages 
as  accrue  to  the  freehold  by  their  de- 
struction. When  the  action  is  for  carry- 
ing away  timber  already  cut,  the  damages 
cannot  well  go  beyond  its  value;  but  where 
standing  trees  arc  cut  down,  the  rule  of 
damages  should  fairly  ')e  the  amount  by 
which  the  value  of  the  estate  is  diminished 
by  their  destruction.  Oregon  &*  C.  R  Co. 
V.  Jackson,  21  Oreg.  360,  28  Pac.  Rep.  74. 

IV.  TRX8PAM  OPOX  THX  PIBIOH. 

28.  When    an    action    will    lie.— 

Trespass  lies  to  recover  damages  for  an  In- 


"9 


sn" 


<iy' 


1116 


TRESPASS,  20, 30.— TRESPASSERS,  INJURIES  TO. 


* 


li^ 


??! 


Jury  which  ii  the  direct  and  primary  or 
inevitable  result  of  grou  or  reckleis  care- 
letineat;  but  when  the  injury,  though  proxi- 
mate, issecondary  or  consequential. and  is  not 
the  necessary  result  of  the  act  of  negligence, 
an  action  on  the  case  is  the  proper  remedy. 
Bay  Short  R.  Co.  v.  Harris,  67  Ala.  6. 

Trespass  vi  *t  armis  will  not  lie  against  a 
railroad  for  an  injury  done  by  its  locomo- 
tive,  whether  such  injury  be  wilful  or  acci- 
dental  on  the  part  of  the  servants  of  the 
company,  where  it  does  not  appear  that  the 
particular  injury  was  done  by  the  command 
OT  with  the  assent  of  the  company.  Phila- 
delphia, G.  6-  A'.  R.  Co.  V.  Wilt,  4  Whart. 
(Pa.)  143.  —  Followed  in  Allegheny  Val- 
ley R.  Co.  V.  McLain,  1  Am.  &  Eng.  R. 
Cas.  464,  91  Pa.  St.  443. 

A  lad  about  ten  years  of  age  was  forcibly 
put  on  board  a  freight  train  by  its  brake- 
man,  and  against  his  will  was  carried  for  a 
distance  of  five  miles.  He  returned  home 
on  foot,  running  most  of  the  way,  and  was 
taken  sick  und  became  permanently  crippled 
in  both  legs.  Held,  that  the  action  of  the 
brakeinan  was  a  trespass,  and  if  the  con- 
ductor of  the  train  was  present,  and  directed 
or  consented  to  the  acts  of  the  brakeman, 
they  were  joint  trespassers,  and  if  the  sick- 
ness resulted  directly  from  their  acts  they 
were  liable  in  an  action  of  trespass.  Drak* 
V.  Kitly,  4  Am.  *•  Eng.  R.  C*t.  592,  93  Pa. 
,S/.  492. 

20.  Declaration— Venue.—  In  an  ac- 
tion of  trespass  the  plaintiff  may  join  counts 
fur  tiespass  to  land,  and  for  trespass  to  the 
person,  and  to  personal  property  :  and,  each 
count  being  an  independent  cause  ol  action, 
he  may  recover  upon  such  counts  as  are 
sustained  by  proof,  although  he  fails  as  to 
others.    /i**d  v.  Ptoria  *•  O.  R.  Co.,  18 

///.  403- 

Actions  for  trespass  to  land  are  local, 
and  at  common  law  must  be  brought  in 
the  county  where  the  land  lies ;  but  ac- 
tions for  trespass  to  personal  property  and 
to  the  person  are  transitory,  and  may  be 
brought  wherever  the  defendant  may  be 
found.    Refd  v.   Peoria  *•  O.  R.  Co.,  18 

///.  403- 

:iO.  Mnttent  of  detenae.  — Inasmuch 
as  the  company  has  the  exclusive  use  of  its 
right  of  way.  it  is  a  serious  question  whether 
it  is  liable  (or  injury  to  u  person  found  on  its 
right  of  way  in  any  case,  unless  its  negligence 
is  wanton  or  wilful.  l.aJtre  Erie  A*  If.  A'. 
Co.  V.  Zflffi»ii[er,  10  ///.  Apf>.  252.     Ov '; 


Illinois  C.  R.  Co.  v.  Hetherington.  83  III. 
510;  Illinois  C.  R.  Co.  v.  Godfrey.  71  III.  $00. 
The  mere  entry  of  a  complaint  before  a 
trial  justice,  and  the  issue  thereon  of  a  war- 
rant of  arrest,  will  not  render  the  complain- 
ing party  or  his  principal  liable  in  trespass 
for  the  nets  of  the  officer  in  serving  the  war- 
rant. Liftig/ord  V.  Boston  &*  A.  R.  Co.,  30 
Am.  d»  E/^,  R.  Cas.  653,  144  Mass.  431,  4 
A'.  £h£.  Rep.  309,  \i  N.  E.  Rep.  697. 


TBE8PA88ERB,  INJURIES  TO. 

Actions  by,  for  injuries  caused  by  fire,  see 

FiRKs.  t57. 
At  crossings,  duty  to  give  lignals  to.  see 

Ckossinc.s,  Injuries  to  Persons,  etc.,  at, 

lOM. 

—  stations,  duty  towards,  see  Stations  and 

Dei'otr,  7ff. 
Children  riding  on  cars,  but  not  as  passen- 
gers, liability  for  injuries  to,  see  Chil- 
URKN,  Injukik^  to,  AO-50. 

—  trespassing  on  train,  injuries  to,  see  Chil. 

nRKN,  InJIIKIKS  TO,   17,  IH. 

Contributory  negligence  of,  when  a  defense 
to  action  for  causing  death,  see  Death 
iiv  Wronckui.  Act,  20:i,  210. 

Defense  that  deceased  was  a  trespasser, 
see  Dkaiii  hv  Wroniikci.  Act,  1()0. 

Distinguished  from  licensees,  see  Licensees, 
Injukiks  to,  O. 

pasatngers,  see  Carriage  or  Passsn- 

UERS,  21. 

Duty  of  cof.pany  towards  persons  walking 
on  track,  see  Strkfts  and  Hic.hwavs, 
»72. 

—  to  fence  for  protection  of,  5ce  Fkncrs.  74. 
Injuries  to  children  trespassing  on  track  or 

ground,  see  Chilorkn,  Injuriks  to,  !i4~ 

41. 
turntable,  see  Children,  Im. 

juries  to,  20. 
Instructions  in  actions  for  injuries  to,  see 

Trial,  127,  in2. 
Liability  of  company  for  ejection  of,  from 

train,  see  Ackncv,  102,  ID.'). 
May  be  put  off  train  at  any  safe  place,  see 

F.jRCTioN  OK  Passkncers,  MS. 
On  trains  generally,  see  Carriage  op  Passen- 

UERK,  02-U0. 
Passenger  refusing  to  produce  ticket  is  tres* 

passer,  xre  F.|K(  1  ion  ok  Pas  ikn<;rr8,  22. 
Statement  of  cai^sc  of  action  in  actions  for 

injuries  to  see  1'i.kaiiin(^  27. 
Unlawfully  on  car,  contributory  negligence 

of,  see  STKKF.i    K/tll.\V..VK    1183. 

When  carrier  may  sue,  see  Carriage  or  Mbr- 

tHANDISK,   721. 


lil 


o. 

ngton.  83  III. 
ey.  71  III.  soo. 
laint  before  a 
reon  of  a  war- 
the  complain^ 
lie  in  trespau 
rvingthe  war- 
A.  R.  Co,,  30 
\  Man.  43».  4 
/.  697. 


IIE8  TO. 
ed  by  Are,  see 

lignals  to,  see 

tSONS,  ETC.,  AT, 

Stations  and 

act  at  pasten- 

I  to,  see  Chil- 

(. 

e«  to,  see  CiiiL- 

H. 

rhen  a  defenie 

ith,  see  Death 

210. 

a  tretpasaer, 
^cr.  100. 

see  Licensees, 

^GE  or  Passbn- 

ertona  walking 
,ni>  Mkshways, 

ce  Fknces.  74. 
ng  on  track  or 

JURIKS   TO,  ;f4- 

Childrkn,  In- 
injuriea  to,  see 
ection  of,  from 

io». 

safe  place,  see 

lAGE  OP  PASSEN- 

e  ticket  ia  tres- 

>AS  tKNURRI,  22. 

H  in  actioaa  for 
27. 

tory  negligence 
.'IH3. 
LRRiAOE  or  Mer- 


TRESPASSERS,  INJURIES  TO,  1,2. 


1117 


L  WHO  II  TO  Bl  DUMU  A  TBU- 

PAMIB 1117 

U.  DOTIBS  AMD  LIABILITIB8  OF  GOM 

PAST  TO  TBE8PA8UBS 1 126 

I.   Trespasstrs  oh  Tracli  and 

Prtmisti 1 1  j6 

a.  In  General 1126 

b.  Speed  ;    Signals  ; 

Fla(>nien  .    . .    .    ilji 

€.  Lookout 1134 

d.  Duty  after  Dis- 
covery of  Tres- 
passer.     1 1 37 

«.  Duty  to  Children, 
Helpless,  Deaf, 
Idiotic,  Intoxi- 
cated, or  Sleep- 
ing Trespassers.  1143 
/.  Duty  to  Keep 
Premises  in  Safe 

Condition 1147 

3.    Trtspasitrt  on  Trains 1148 

a.  In  General 1148 

b.  Ejection    from 

Trains 1149 

IIL  OOBTBIBUTOBT    BBOLIOBITGB    Of 

TBIBPASSBR li$l 

I¥.  PBOOXDUBE 1 163 

1.  Evidetue 1 163 

2.  Instruiiions 1 164 

I.  WHO  U  TO  BX  DBBMID  A  TBMPAMXB. 

1.  Ooiiurnlly.—Onc  who  goes  upon  a 
track  at  a  place  other  than  a  crossing  and 
where  the  company  is  required  to  funce, 
there  being  iiolliing  in  the  surroundings  that 
would  lead  the  company  to  suspect  his  pres- 
ence, is  a  trespasser.  Hurkfr  v.  Ilanniluit 
&* St.  /.  A'.  Co.,  37  Am.  &•  Ktig.  A\  Cas.  292, 
98  Mo.  50,  II  .V.  ly.  l\'fp.  254. 

And  one  who  goes  upon  n  track  at  a  place 
other  than  a  highway  ciossing  fur  his  own 
convenience  is  a  trespasser.  Candelarta  v. 
Atchison,  T.  &•  S.  F.  R.  Co.,  (A'.  Mtx.)  48 
Am.  &*  Eng.  R.  Cas.  $65,  27  Pac.  Rtp.  497. 

One  who  is  killed  on  railroad  property 
which  is  no  part  of  a  public  highway  is  a  tres- 
passer, to  whom  the  company  owes  no 
apei  iai  duty.  Collis  v.  Nrw  York  C.  &*  H. 
R.  R.  Co.,  34  N.  V.  Supp.  1090,  ss  A'.  K.  S. 
R.  83.  71  Hun  S04. 

Except  at  stations  nnd  yards  and  at  high- 
way crossings,  a  company  is  entitled  to  the 
exclusive  use  uf  its  track,  and  all  persons 
who  go  upon  the  track  are  trespassers;  and 
no  recovery  cm  be  li.id  for  an  injury  unless 
there  it  such  gross  negligence  on  the  part 


of  the  company  as  would  make  it  liable  for 
exemplary  damages.     Houston  &*  T,  C.  R. 
Co.  V.  Booser,  2  Ttx.  Unrep.  Cas.  4J3. 
2.  PorNoiiM  croaaiiig  track.— A  track 

is  the  exclusive  property  of  the  company, 
on  which  no  unauthorized  person  has  a 
right  to  be  for  any  pur|K>se.  If  a  person 
attempts  to  cross  a  track  other  than  at  the 
usual  crossings  lie  does  so  at  his  own  |i«ril, 
subject  to  certain  qualitications.  GaUna  &* 
C.  U,  li.  Co.  V.  Jacobs,  30  ///.  478. 

A  person  who  walks  upon  a  track  laid 
along  a  public  street  is  not  a  trespasser,  and 
may  recover  for  a  negligent  injury,  if  with- 
out fault.  Ohio  &»  Af.  R.  Co.  v.  Walker,  33 
Am.  &*  Eng.  R.  Cas.  121,  113  Jnd.  196, 
12  IVtst.  Rep.  731,  IS  N.  E.  Rep.  234.- Dis- 
TiNUiiisiiiNC.  Ivensv.  Cincinnati,  W.  &  M. 
R.  Co..  103  Ind.  27.  Following  Louisville. 
N.  A.  &  C.  K.  Co.  V.  Phillips,  112  Ind.  $9. 

A  person  will  not  bo  regarded  as  a  tres- 
passer who  is  injured  while  crossing  a  track 
where  lie  had  been  accustomed  to  cross  for 
a  year  or  more,  which  was  well  known  and 
permitted  by  the  company  or  its  agents. 
Illinois  C.  R.  Co.  v.  Dick,  91  A>.  434,  15  .S". 
W.  Rep.  665. 

One  injured  by  a  train  while  crossing  a 
track  at  a  place  ixjt  a  highway,  and  where  no 
inducement  is  held  out  10  him  by  the  cor- 
poration to  cross,  cannot  maintain  an  action 
against  the  corporation.  Wr^ht  v.  Boston 
Cf  M.  R.  Co.,  2  Am.  &*  Eng.  R.  Cas.  121, 129 
Afass.  440.  — DisriNCUisiiF.i)  IN  Bostwick 
V.  Minneapolis  &  P.  R.  Co.,  2  N.  Dak.  440. 

The  fact  that  others  crossed  a  track  at 
the  place  where  pl.iintitT  attempted  to  cross 
and  was  injured  constitutes  no  excuse,  in 
the  absence  of  any  planking  or  invitation 
by  the  railroad,  or  proof  that  the  place  was 
known  to  or  acquiesced  in  by  it  as  a  cross- 
ing. Young  V.  Old  Colony  A".  Co.,  1 56  Mass. 
178,  30  A^.  E.  Rep.  560.— DISTINOUI.SH- 
INO  Warren  v.  Fitchburg  R.  Co.,  8  Allen 
(Mast.)  227. 

One  crossing  a  track  in  a  city  at  a  point 
100  feet  distant  from  a  street  crossing  at  an 
opening  in  a  train  of  cars  standing  upon 
the  track  is  a  trespasser,  there  being  no 
evidence  that  such  o(>ening  was  made  for 
the  purpose  of  allowing  pedestrians  to  pass 
through.  Dahlsirom  v.  St.  Louis,  1.  M. 
A-  S.  R.  Co.,  3S  ^m-  **  Eiig.  R.  Cas.  387.  y'i 
Mo.  99.  8  S.  W.  Rep.  777.  ij  W^«'-  ^^^P-  ^S- 

Where  a  company  has  acquiesced  for  a 
long  time  in  the  public  generally  crossing 
its  track  by  u  trodden  pathway,  it  mutt  ut« 


^H/ 


( 

f 

i 

i 

i 

il 

•      - 

I 

! 

1118 


TRESPASSERS,  INJURIES  TO,  3, 4. 


reasonable  care  to  protect  a  person  who  is 
crossing  by  such  way.  Whether  the  com- 
pany knew  oi  such  use  by  the  public  and 
assented  thereto  is  a  question  for  the  jury. 
Larkin  v.  Ntw  Y«rk  4*  A^.  R.  Co..  46  A^.  Y. 
S.  R.  658,  19  N,  Y.  Supp.  479;  affirmtd  in 
138  N.  Y.  634.  SI  A^.  Y.  S.  R.  93$.  33  N.  E. 
Rep.  1084.—  Applying  Byrne  v.  New  York 
C.  ft  H.  R.  R.  Co.,  104  N.  Y.  362.  5  N.  Y. 
S.  R.  722 ;  Swift  V.  Staten  Island  R.  T.  R. 
Co..  123  N.  y.  645.  33  N.  Y.  S.  R.  604. 

8.  PersoiiM  walking  on  trnck,  Ken* 
erally.*— Railroad  tracks  are  not  highways 
(or  general  travel,  and  persons  cannot  as 
matter  of  right  convert  them  into  common 
thoroughfares  except  at  public  crossings, 
and  then  only  for  the  purpose  of  crossing 
with  no  undue  tardiness.  Mobile  &»  M,  R, 
Co.  V.  Blakefy,  $9  Ala.  471. 

The  ordinary  rule  is  that  persons  who 
w.ilk  upon  a  track  are  trespassers.  Cook  v. 
Central  R.  &*  B.  Co.,  67  Ala.  533.  Savan- 
nah  &*  W.  R.  Co.  v.  Meadors,  95  Ala.  137, 
10  So.  Rep.  141 .  Toomey  v.  Southern  Pac.  R. 
Co.,  86  Cal.  374.  24  Pac.  Rep.  1074.— Quot- 
ing Philadelphia  &  R.  R.  Co.  v.  Hummel!, 
44  Pa.  St.  378,  84  Am.  Dec.  457 ,  Mulherrin 
V  Delaware,  L.  &W.  R.  Co.,  81  Pa.  St.  37$; 
Baltimore  ft  O.  R.  Co.  v.  State,  62  Md.  487, 
JO  Am.  Rep.  233 ,  Palmer  v.  Chicago,  St.  L. 
ft  P.  R.  Co..  Ill  Ind.  i%i.— Central  R.  Co.\. 
Brinson,  19  tim.  &*  Efig.  R.  Cas.  42,  70  Ca. 
toff.  Master  v.  Chicago.  R.  I.  «>*  P.  R.  Co., 
68  Iowa  602.  27  N.  IV.  Rep.  776. 

A  passenger  is  not  a  trespasser  because 
he  walks  on  the  track  of  his  carrier  when 
he  sees  no  train  coming.  Central  R.  Co.  v. 
Thompson,  76  Ga.  770. 

One  walking  alung  a  track  for  his  own 
convenience  is  a  trespasser,  and  has  not  the 
■ame  rights  as  a  passenger,  or  one  who 
crosses  the  track  at  a  highway  crossing. 
Mere  proof  of  ordinary  negligence  will  not 
enable  him  to  recover  for  an  injury.  He 
must  show  that  the  injury  was  wanton  or 
wilful,  and  that  he  used  extraordinary  care 
for  his  own  safety.  And  this  rule  applies 
though  the  company  has  acqvicsced  in  the 
trark  bein^  used  as  a  footpath.  Illinois  C. 
R.  Co.  V.  Godfrey,  71  ///.  500.— Approved 
IN  Moore  v.  Wabash,  St.  L.  ft  P.  R.  Co..  84 
Mo.  481.  Followed  in  Illinois  C.  R.  Co. 
V.  Hetherington,  83  III.  $10;  Masser  v.  Chi- 
cago, R.    I.  ft  P.  R.   Co..  68  Iowa  602. 


*  Use  of  track  as  ■  footpath,  see  note,  19 
Am.  ft  Eno.  R.  Cas.  90. 


Quoted  in  Gothard  v.  Alabama  G.  S.  R. 
Co.,  67  Ala.  114:  Cook  v.  Central  R.  ft  B. 
Co.,  67  Ala.  533  J  Central  R.  Co.  v.  Brin- 
son, 19  Am.  ft  Eng.  R.  Cas.  43,  70  Ga.  207 ; 
Lake  Shore  ft  M.  S.  R.  Co.v.  Bodemer,  139 
III.  596 ;  Illinois  C.  R.  Co.  v.  Noble,  142  III. 
578 ;  Lake  Eric  ft  W.  R.  Co.  v.  Zoffinger, 
10  III.  App.  252.  Reviewed  in  Illinois  C. 
R.  Co.  V.  Houghton,  126  III.  233,  18  N.  E. 
Rep.  301,  I  L.  R.  A.  213;  Davis  v.  Chicago 
ft  N.  W.  R.  Co.,  IS  Am. ft  Eng.  R.  Cas.  424. 
S8  Wis.  646,  46  Am.  Rep.  667. 

The  fact  that  a  company  does  not  enforce 
its  right  to  keep  people  from  walking  up^n 
its  tracks  does  not  prevent  people  walki.ig 
thereon  from  being  trespassers,  or  chanj^e 
the  relative  rights  and  obligations  of  such 
persons  and  the  company.  Blanchard  v. 
Lake  Shore  &*  M.  S.  R.  Co.,  126  ///.  416,  18 
A'.  E.  Rep.  799. 

One  is  not  a  trespasser  on  a  track  who 
has  been  accustomed  to  use  it  for  a  long 
time  with  the  company's  tacit  permission. 
Guenther  v.  St.  Louis,  I.  M.  6-  S.  R.  Co., 
108  Mo.  18,  18  S.  W.  Rep.  846.— Follow- 
INU  AND  quoting  Le  May  v,  Missouri  Pac. 
R.  Co.,  10$  Mo.  361. 

The  constitutional  declaration  that  rail- 
ways are  "public  highways"  docs  not 
authorize  the  use  of  tracks  by  foot  travelers. 
Hyde  v.  Missouri  Pac.  R.  Co.,  $4  Am.  A* 
Eng.  R.  Cas.  157,  no  Mo.  272,  19  S.  W. 
Rep.  483. 

Plaintiff,  having  gone  upon  the  track  in 
order  to  save  younger  children  from  danger, 
was  not  a  trespasser.  Spooner  v.  Delaware, 
L.  4*  IV.  R.  Co.,  39  Am.  &»  Eng.  R.  Cas. 
599,  IIS  N.  Y.  22,  21  A^.  E.  Rep.  696,  23 
JV.  Y.  S.  R.  554  ;  affii'ming  41  Hun  643.  mem.. 
I  A'.  Y.  S.  R.  5s8.-Follow!NG  Eckert  v. 
Long  Island  R.  Co..  43  N.  Y.  $02. 

4. Oil  track  in  city  o.v  village.— 

A  person  who  walks  along  a  trark,  whether 
in  a  town  or  in  the  country,  vvithout  regard 
to  its  location  or  surrounding  is  a  tres- 
passer. Glass  V.  Memphis  &*  C.  R.  Co..  94 
Ala.  s8i,  10  So.  Rep.  215. 

When  the  cross-ties  of  the  spur  track  of 
a  railway  are  laid  on  the  surface  of  an  alley 
in  a  town  and  the  track  is  not  imbedded  in 
the  alley,  such  track  is  not  a  {>ublic  high- 
way, and  a  person  walking  along  it  without 
excuse  is  a  trespasser  to  whom  the  railroad 
company  owes  no  duty  except  to  avoxA  the 
infliction  of  wanton  injury  on  him.  Mont- 
gomery v.  Alabama  G.  S.R.  Co.,yj  Ala.  305, 
12  .So.  Rep.  170. 


.1  j 


J 


TRESPASSERS,   INJURIES  TO,  5-8. 


1119 


>ama  G.  S.  R. 
ntral  R.  &  B. 

Co.  V.  Brin- 
t,  70  Ga.  307 ; 
Oodemer,  139 
foble,  142  III. 

V.  Zoffinger, 
IN  Illinois  C. 
233,  18  N.  E. 
is  V.  Chicago 
.  R.  Cas.  424, 

es  not  enforr« 
walking  upon 
eoplc  walking 
rs,  or  chani'e 
lions  of  sucli 
Blanchard  v. 
26  ///.  416,  18 

I  a  track  who 
it  for  a  long 

it  permission. 
6-  S.  A\  Co.. 

^6.— FOLLOW- 

Missouri  Pac. 

ion  that  rail* 
docs  not 
foot  travelers. 
>.,  54  Am.  S* 
172,  19  S.   IV. 

n  the  track  in 
1  from  danger. 
r  V.  Delaware. 

Eng.  R.  Cas. 

Rep.  696,  23 
^Iun6^l,mem., 
!NG  Eckert  v. 
502. 

ni'  village.— 
;rarK,  whether 
without  regard 
ing  is  a  tres- 
•  C.  R.  Co.,  94 

I  spur  track  of 
tec  of  an  alley 
t  imbedded  in 
1  public  high> 
Dng  it  without 
m  the  railroad 
t  to  avoid  the 
1  him.  Mont' 
v., 97  Ala.  30$, 


One  who  walks  along  a  track  which  is 
not  imbedded  in,  and  does  not  form  part  of, 
the  public  streets  of  a  town  is  a  trespasser, 
and  if  he  fails  to  use  his  sense  of  sight  or 
hearing  to  discover  the  approach  of  moving 
trains  he  is  guilty  of  such  contributory 
negligence  as  will  bar  a  recovery  for  dam- 
ages, unless  the  negligence  of  the  person  in 
charge  of  the  train  which  caused  the  injury 
was  so  reckless  and  wanton  as  to  be  the 
equivalent  of  wilful  or  intentional  wrong, 
Louisville  6*  N.  R.  Co.  v.  Hairston,  97  Ala. 
3SI,  12  So.  Rep.  299. 

Where  a  part  of  a  track,  not  within  the 
limits  of  a  street,  is  habitually  used  by  the 
public  in  approaching  a  depot,  with  the 
knowledge  and  consent  of  the  compuny,  a 
person  so  using  it  is  not  a  trespasser.  Chi- 
cago!** E.  I.  R.  Co.  V,  Hedges.  25  Am.&*Eng. 
R,  Cas.  550,  105  /ntt.  398.  7  A'.  E.  Rep.  801. 

The  ownership  of  i  :ompany  in  its  tracks 
upon  a  public  street  crossing  is  not  such  as 
to  make  a  man  a  trespasser,  if  he  travels 
squarely  across  them.  Fehnrich  v.  Michi- 
gan C.  R.  Co.,  87  Mich.  606,  49  N.  W.  Rep. 
890.  — Not  following  Kelly  w.  Michigan 
C.  R.  Co.,65  Mich.  186 

The  rights  of  the  public  are  not  subor- 
dinate to  those  of  a  company  at  the  cross- 
ing of  a  public  street ;  but  where  the  track 
runt  along  the  street,  the  rights  of  the 
public  are  subordinate,  and  persons  walking 
on  the  track  must  keep  out  of  the  way  of 
trains.  Zimmerman  v.  Hannibal  &*  St.  J. 
R.  Co.,  2  Am.  &*  Eng.  R.  Cas.  191  71  Mo. 
476.— Following  Fletcher  v.  Atlantic  &  P. 
R.  Co.,  64  Mo.  484.  Reconciling  Con- 
tinental Imp.  Co.  V.  Stead,  95  U.  S.  161. 

Where  the  track  and  right  of  way  of  a 
railroad  in  a  city  are  habitually  used  by  the 
public  for  a  way  to  the  city  streets,  and 
there  are  gates  in  the  railroad  fence  to 
enable  pedestrians  to  go  upon  the  right  of 
way  and  track,  one  walking  on  such  track 
on  his  way  to  a  street  is  not  a  trespasser. 
Lynch  v.  St.  Joseph  &•  I.  R.  Co.,  ill  Mo. 
601,  195.  IV.  Rep.  1 1 14. 

A  line  of  railway  running  alongside  of  a 
street,  and  not  divided  by  any  fence  front 
the  street,  is  not  a  road  on  which  foot  pas- 
sengers using  it  are  entitled  to  the  same 
protection  as  if  they  were  walking  on  an 
ordinary  highway.  Held,  that  a  person  who 
was  injured  by  falling  over  some  planks 
lying  on  the  track  had  no  action  against 
the  company.  Faucher  v.  North  Shore  R. 
Co.,  12  Quebec  L.  R.  88. 


A.  Penonii  riding  or  driving  on 
track.—  Persons  walking,  riding,  or  driving 
upon  a  track  between  stations  and  public 
crossings  are  trespassers.  Jejffersonville,  M. 
&*  I.  R.  Co.  v.  Goldsmith,  47  Ind.  43.  Mc 
Claren  v.  Indianapolis  6-  V.  R.  Co.,  8  Am, 
&*  Eng.  R.  Cas.  217. 83  Jnd.  319. 

O.  PcniuiiB  on  bridges  or  trostleR. 
—A  person  who  attempts  to  wulk  across  a 
railroad  trestle  100  feet  long  and  20  feet  high 
is  a  trespasser.  Central  R.  &•  B.  Co.  v. 
Vaughan,  93  Ala.  209,  9  So.  Rep.  468. 

Any  person  walking  upon  the  track  or 
bridge  of  a  railway  company  without  con- 
sent of  the  company  is  there  wrongfully  and 
must  be  considered  a  trespasser.  Mason  v. 
Missouri  Pac.  R.  Co.,  6  Am.  6»  Eng.  R.  Cas, 
I.  27  Kan.  83,  41  Am.  Rep.  405. 

Where  a  bridge  has  been  habitually  and 
constantly  used  fur  many  years  by  people  in 
the  locality  as  a  foot  pathway  without  any 
objection,  notice,  or  warning,'  by  the  company 
that  it  should  not  be  so  used,  persons  walk- 
ing upon  it  arc  licensees  and  not  trespassers. 
Hooker  v.  Chicago,  M.  5*  St.  P.  R.  Co.,  41 
Am.  &*  Eng.  R.  Cas.  498.  76  IVis.  542.  44  N. 
IV.  Rep.  1085. 

7.   or  climbing  over  can.  — 

Where  a  company  has  a  right  to  allow  its 
cars  to  stand  upon  a  track,  and  the  cars  ob- 
struct no  public  crossing,  one  who  endeav- 
ors to  climb  over  the  cars  in  order  to  make 
a  short  cut  between  two  points  in  the  town 
and  is  killed  is  a  trespasser,  and  the  railroad 
company  is  not  liable  in  damages  for  his 
death  unless  the  accident  was  the  result  of 
gross  negligence  on  the  part  of  the  com- 
pany's servants.  Hlinois  C.  R.  Co.  v.  Beard, 
49  ///.  App.  232. 

8.  PerHoiiH  on  tlie  right  of  way.— 
The  right  of  way  of  a  company  is  its  exclu- 
sive property,  upon  which  no  unauthorized 
person  has  a  right  to  be.  Any  one  who 
travels  upon  such  right  of  way  as  a  footway 
and  not  for  any  business  with  the  railroad  is 
a  wrong-doer  and  a  trespasser ;  and  the  mere 
acquiescence  of  the  company  in  such  user 
does  not  give  the  right  to  use  the  track  or 
create  any  obligation  for  special  protection. 
Baltimore  4*  O.  R.  Co.  v.  State,  19  Am.  4* 
Eng.  R.  Cas.  83.  62  Md.  479.  5°  ■^»«-  l^*P- 
233.— Followed  in  Masserv.  Chicago,  R. 
I.  h  P.  R.  Co.,  68  Iowa  602.  Quotbo  in 
Toomey  V.  Southern  Pac.  R.  Co.,  86  Cal.  374- 

Where  the  right  of  way  of  a  company  has 
been  in  constant  use  by  travelers  on  foot  for 
more  than  twenty  years,  without  objeclion, 


1120 


TRESPASSERS,  INJURIES  TO,  •. 


*  I- 


it  ii  (or  the  jury  to  say  whether  the  com- 
pany acquiesced  in  such  user.  Such  a  user, 
while  not  establishing  a  public  highway 
upon  the  company's  right  of  way,  would 
relieve  the  persons  passing  over  the  same 
from  being  treated  as  trespassers  by  the 
company.  Davis  v.  Chitago  S*  N.  IV.  A*. 
Co.,  IS  Am.  &»  Eitg.  /f.  Cas.  424.  $8  ^^■ 
646.  17  JV.  IV.  Rtp.  406.  46  Am.  Rtp.  667- 
Reviewing  Nicholson  v.  Erie  K.  Co.,  41  N. 
Y.  53$ :  Sutton  V.  New  York  C.  &  U.  R.  R. 
Co.,  66  N.  Y.  343 :  Johnson  v.  Boston  &  M. 
R.  Co.,  13$  Mass.  7$;  Sweeny  v.  Old  Col- 
ony ft  N.  R.  Co..  10  Allen  (Mass.)  368; 
Carleton  v.  Franconia  I.  &  S.  Co.,  99  Mass. 
ai6:  Gillis  v.  Pennsylvania  R.  Co.,  $9  Pa. 
St.  139;  Illinois  C.  R.  Co.  v.  Godfrey,  71  III. 
$00;  Illinois  C.  R.  Co.  v.  Hetherington,  83 
III.  $10;  Murray  V.  McLean,  $7  III.  378. 

O.  Pontoiis  in  depot  iproiiiida  or 
yardM.— Until  notice  has  been  given  of  the 
changed  character  of  the  place,  one  passing 
over  a  wharf  or  platform  over  which  the 
public  has  been  accustomed  to  pass  cannot 
be  deemed  a  trespasser  for  so  passing,  al- 
though the  use  of  the  wharf  or  platform  for 
the  pur|)ose  of  passing  has  been  discon- 
tinued. Niw  Orltans,  M.  &»  C.  R.  Co,  v. 
Hanning,  1  $  Wall.  ( U.  S.)  649,  4  Am.  Ry. 
Rtp.  343. 

All  the  property  of  a  company,  including 
its  depots  and  adjacent  yards  and  grounds, 
is  its  private  property,  on  which  no  one  is 
invited,  or  can  claim  a  right  to  enter,  except 
those  who  have  business  with  the  railroad  ; 
which  class  embraces  not  only  passengers, 
but  protectors  and  friends  attendant  on  their 
departure,  or  awaiting  their  arrival.  Afont- 
gomtry  5*  E.  R.  Co.  v.  Thompson,  77  Ala. 
448.  $4  Am.  Rep.  73. 

If  a  passenger,  being  a  stranger  to  the 
station  and  surroundings,  finds  himself, 
almost  immediately  after  alighting  from  a 
train,  left  mi  utter  darkness  by  the  extin- 
guishment of  the  station  light  by  the  agent. 
the  railroad  cannot  claim  that  the  passenger 
is  a  wroig-doer  if  he,  in  his  effort  to  get  to 
a  place  of  safety  or  for  nifonnation,  crosses 
other  ground  of  defendant  than  that  upon 
which  the  station  is  actually  erected.  IVal- 
latt  V.  Wilmington  &*  N.  R.  Co.,  8  Iloust. 
(Dtl.)  $39,  18  All.  Rtp.  818. 

After  waiting  a  reasonable  time  for  cars 
blocking  the  highway  to  be  removed,  a 
pedestrian  may  turn  aside  to  avoid  the  ob- 
struction and  pass  over  the  company's  en- 
closed grounds.    In  so  doing  he  will  not  be 


a  trespasser.  SmilA  v.  SavanmaM,  F.  A«  W, 
R.  Co.,  43  Am.  5«  Eng.  R.  Cas.  10$.  84  Ga. 
698.  II  S.  £.  Rtp.  4S$. 

Plaintifl  sought  shelter  from  the  rain 
underneath  a  building  belonging  to  a  com- 
pany, which  had  formerly  been  used  as  a 
freight  house,  but  not  being  in  use  bad  been 
permitted  to  become  dilapidated  and  in- 
secure. While  at  the  freiglit  house  he  no- 
ticed that  a  portion  of  the  roof  was  lifted 
by  wind  and  in  danger  of  falling.  While 
running  to  escape  the  falling  fragment  he 
was  struck  by  it  and  injured.  NtlJ,  that 
plaintifl  was  a  trespasser  and  could  not  re- 
cover. Lary  v.  Cleveland,  C,  C.  &»  I.  R. 
Co.,  3  Am.  &*  Eng.  R.  Cas.  498,  78  Ind.  333, 
41  Am.  Rep.  $73.  —  DiSTlNOUisiiiNO  La- 
fayette &  I.  R.  Co.  V.  Adams.  36  Ind.  76 ; 
Indianapolis  &  C.  R.  Co.  v.  McClure,  a6 
Ind.  370:  Gray  v,  Harris,  107  Mass.  493; 
Lsabel  v.  Hannibal  ft  St.  J.  R.  Co.,  60  Mo. 
47$.  QuuTiNG  Pittsburgh,  Ft.  W.  ft  C.  R. 
Co.  V.  Bingham,  39  Ohio  St.  364;  Sweeny 
V.  Old  Colony  ft  N.  R.Co.,  10  Allen  (Mass.) 
368.  Reviewing  Hounsell  v.  Smyth,  7  C.  B. 
N.  S.  731- 

One  who  is  injured  while  removing  freight 
from  a  car  is  not  a  trespasser  because  the 
freight  charges  had  not  been  paid,  where  it 
appears  that  the  company  had  waived  its  lien 
for  freight.  Watson  v.  Wabash,  St.  L.  &>  P. 
R.  Co.,  19  Am.  &»  Eng.  R.  Cas.  114,  66  Iowa 
164,  23  A'.  W.RtS.  380. 

One  who  is  upon  a  side  track  seeking  em- 
ployment from  a  shipper  of  stock  to  feed 
and  water  his  stock  is  there  upon  business 
indirectly  connected  with  the  operation  of 
the  road,  and,  having  a  right  to  be  there, 
the  company  owes  him  a  duty  of  active  vig- 
ilance. .Skeliy  V.  Cincinnati,  N.  O.  &*  T.  P. 
R.  Co.,  8$  A>.  334,  3  A.  W.  Rep.  i$7. 

Plaintifl,  while  walking  between  two  of 
defendant's  tracks  in  its  switching  yard, 
was  struck  and  seriously  injured  by  a 
stake  running  from  an  engine  on  one  track 
to  cars  on  the  opposite  track,  and  used  in 
moving  them.  At  the  time  of  the  acci- 
dent he  was  crossing  a  public  street  which 
crossed  the  tracks,  with  the  intention  of 
proceeding  on  defendant's  right  of  way  to 
the  shop  adjoining  the  tracks  where  he  was 
employed.  It  was  not  yet  daylight.  He 
saw  the  engine  and  moving  cars,  but  did 
not  see  the  stake  connecting  them.  The 
employes  in  the  shop  were  in  the  habit  of 
reaching  it  by  this  route,  but  not  with 
defendant's  consent,  it  having  warned  the 


tHHak,  F.  4«  IV. 
Cat.  105.  84  Go. 

from   the   rain 
'HKiiiK  to  a  coiik* 
been  used  at  a 
.  ill  use  bad  been 
ipidated  and  in- 
:bt  house  he  no- 
roof  was  lifted 
falling.    While 
ing  fragnient  he 
red.    HtU,  that 
[lid  could  not  re- 
C.  C.  **  /.  Ji. 
498.  78  iHd.  jaj. 
Noi;isiiiNo  La. 
ms,  36  Ind.  76; 
V.  McClure,  a6 
107  Mass.  492; 
.  K.  Co..  60  Mo. 
.  Ft.  W.  &  C.  R. 
St.  364;  Sweeny 
10  Allen  (Mass.) 
V.  Smyth,  7  C.  B. 

removing  freight 
sser  because  the 
(11  paid,  where  it 
ad  waived  its  lien 
iasA.  St.  L.  &*  P. 
Cat.  1 14,  66  Iowa 

aclc  ■eekingem- 
>f  stock  to  feed 
s  upon  business 
he  operation  of 
[lit  to  be  there, 
ity  of  active  vig> 
I,  N.  O.  &*  T.  J'. 
R*p.  I  $7. 
l>elween  two  of 
(Witching  yard. 

injured  by  a 
ne  on  one  track 
:k,  and  used  in 
le  of  the  acet- 
ic street  which 
le  intention  of 
ight  of  way  to 
>  where  he  was 
daylight.  He 
\  cars,  but  did 
ig  them.  The 
n  the  habit  of 

but  not  with 
ig  warned  the 


TRIiSPASSIiRS,  INJURIES  TO,  10-ia. 


1121 


public  not  to  walk  on  its  tracks,  and  having 
stationed  men  it  street  crossings  to  prevent 
•uch  travel.  Htid,  that  plaintifT  was  a  tres- 
passer, and  that  the  court  erred  in  instruct- 
ing the  jury  that  upon  this  state  of  facts,  in 
the  absence  of  contributory  negligence, 
plaintiff  was  entitled  to  recover.  Ktlly  v. 
Michigan  C.  A*.  Co.,  28  Am.  &*  Eng.  A'.  Cat. 
633.  65  A/icA.  186,  31  N.  ir.  Ktft.  904. -Not 
roLLOWKD  IN  Fchnrich  v.  Michigan  C.  R. 
Co.,  87  Mich.  606. 

A  person  who  is  engaged  in  unloading 
his  freight  from  a  car  on  a  railway  track  to 
his  wagon  has  no  right  so  to  place  his 
wagon  as  to  obstruct  another  railway  track 
on  which  cars  are  being  operated,  when, 
though  this  may  be  a  matter  of  convenience 
to  him,  it  is  not  necessary  for  him  t<j  occupy 
that  position — he  is  a  trespasser.  Utittr  v. 
East  St.  Louis  Con.  A'.  Co.,  53  Alo.  App.  331. 
— Kkvikwino  Illinois  C.  R.  Cu.  v.  Godfrey, 
71  III.  500;  Illinois  C.  R.  Co.  V.  Hetheriiig- 
ton,  83  III.  sio. 

Under  Va.  Act  of  April  4,  1868,  any  one 
not  a  passenger  who  enters  a  depot  takes 
the  risk  upon  himself.  Gifard  w.  Pennsyl- 
vania Ji.  Co.,  13  Phila.  (Pa.)  394.— FoL- 
LOWING  Kirby  v.  Pennsylvania  R.  Co.,  76 
Pa.  St.  106;  Mullieriin  v.  Delaware,  L.  & 
W.  R.  Co.,  81  Pa.  St.  366. 

10.  >Vlicre  pouplo  linbltiinlly  wulk 
on  tracki— A  person  who  walks  on  a  truck 
is  a  trespasser,  and  the  fact  that  persons  in 
the  neighborhood  are  in  the  habit  of  walk- 
ing on  it.  without  objection  on  the  part  of 
the  company,  does  not  change  or  affect  the 
character  of  the  act  as  a  trespass.  Glass  v. 
Attmphis  &*  C.  R.  Co.,  94  Ala.  $81.  10  So. 
Jitp.  31  J.  Eggmann  v.  St.  Louit,  A,  &*  T. 
H.  R.  Co.,  47  ///•  ^PP-  507 

A  person  traveling  upon  the  track  of  a 
railroad  company  is  a  trespasser,  and  the  fact 
that  other  persons  residing  in  the  locality 
where  the  accident  occurred  have  been  in  the 
habit  of  traveling  upon  the  ri(;ht  of  way  of 
defendant,  and  that  no  measures  have  been 
taken  to  prevent  them,  does  not  change  the 
relative  riglits  or  obligations  of  such  per- 
son or  the  railroad  company.  (Walker  and 
Dickey,  jj,  dissenting.)  Illinois  C.  R.  Co. 
V.  Htthtrington,  83  ///.  510.— FoKLOwiNO 
Illinois  C.  R.  Co.  v.  Godfrey.  71  HI.  $00.- 
FoLLOWEDiN  Eggmann  v.  St,  Louis,  A.  AT. 
H.  R.  Co.,  47  III.  App.  507.  Reviewed  in 
Davis  V.  Chicago  &  N.  W.  R.  Co..  15  Am. 
&  Eng.  R.  Cas.  424,  58  Wis.  646.  46  Am. 
Rep.  667. 

7D.  R   I)-7i 


The  fact  that  people  have  often  tres- 
passed on  a  track  and  the  company  has  not 
stopped  them  does  not  imply  consent  so  to 
use  the  track,  and  will  not  create  any  right 
in  the  public  to  use  it.  Spictr  v.  Chttaptak* 
^  O.  R.  Co.,  34  W.  Va.  $14, 12  S.  E.  Rip.  $$3, 

One  has  no  legal  ri({ht  to  be  on  a  railroad 
track ;  the  track  at  that  place  not  being  a 
crossing  or  any  part  of  a  public  highway 
is  private  property;  it  was  not  built  to  be 
walked  upon  by  the  public,  and  the  fact 
that  persons  do  walk  upon  it,  however 
frequently  and  however  commonly,  does  not 
change  the  proposition  of  law.  Einlayson  v. 
Ckiia^o,  n.  &*  Q.  R.  Co..  1  Dill.  (U.S.)  $79. 

1 1.  PorMuiiM  on  prunilioH  or  truok 
iiiiuur  iiiipllod  licouao.  —  One  taking  a 
train  at  a  place  where  the  company  permits 
passengers  to  take  trains,  thougli  it  is  not  a 
depot,  is  not  a  trespasser.  Drwiri  v.  Boston 
&*  Al.  R.  Co.,  37  Am.  &*  Eng.  R.  Cas.  57, 148 
Afass.  343,  2  L.  R.  A.  166.  19  N.E.  Rip.  533. 

One  is  not  a  trespasser  on  a  company's 
tracks  who  for  a  long  time  and  with  its 
tacit  permission  nas  been  accustomed  to 
use  the  tracks  for  towing  sand  boats; 
the  fact  of  such  use  is  some  evidence  of 
notice  thereof  to  the  company,  and  is  a  suf- 
ficient basis  for  an  instruction  on  the  ques- 
tion of  notice.  LtAlay  v.  Atissouri  Pac.  R. 
Co.,  105  Afo.  361,  16  S.  H\  Rep  1049.  -FOL- 
l.owiNti  Williams  v.  Kansas  City,  S.  &  M.  R, 
Co.,  37  Am.  &  Eng.  R,  Cas.  329,  96  Mo.  27$, 
—  FoLLOWEU  AND  QUOTED  IN  Guentlief  V. 
St.  Louis,  I.  M.  &  S.  R.  Co.,  108  Mo.  18. 

12.  PvrNOUM  oil  trtoliiM,  geiiorally.* 
— When  the  yard  master  of  a  private  corpo* 
ration  which  was  organized  for  mining  coal 
and  ore  and  owns  a  railroad  used  exclusively 
for  transporting  such  productions,  without 
authority  from  the  officers  of  such  corpora- 
tion, permits  an  excursion  train  belonging 
to  anotlier  corporation  to  go  over  its  road, 
the  persons  on  such  excursion  train  are 
trespassers,  and  the  owner  of  such  road  is 
not  responsible  for  injuries  received  by  a 
I)asKengcr  on  such  train  tiiat  were  caused 
by  simple  negligence  of  its  employes. 
Vormus  v.  Tennessee  C,  I.  &*  R.  Co.,  97  Ala. 
326,  13  So.  Rep.  III. 

In  such  case,  if  it  is  shown  that  at  the 
time  the  yard  master  gave  permission  for 
the  train  to  go  over  defendant's  road,  it  had 
escaped  his  recollection  that  one  of  defend- 

•See  also  fast.  B 1-90. 

Duly  uf  cumpany  to  trespassers  on  train,  see 

not;,  35  Am.  St.  Rtr.  660. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Carporation 


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WntTH,N.Y.  MSM 
(714)t7a-4S03 


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TRESPASSERS,  INJURIES  TO,  12. 


I?  I ! 


mn 


ant't  trains  was  running  on  the  same  track, 
that  he  did  all  in  his  power  to  have  the  ex- 
cursion train  return  to  a  place  of  safety  in 
time  for  the  collision  to  have  been  avoided, 
but  that  the  negligence  of  the  officers  of  the 
excursion  train  caused  the  accident,  it  is 
properly  left  to  the  jury  to  decide  whether 
the  yard  master  was  guilty  of  wanton  or  in- 
tentional misconduct.  Vormus  v.  Tennessee 
C.,I.  &*  R.  Co.,  97  Ala.  326,  12  So.  Rep.  in. 

Where  it  appears  that  plaintiH,  having  a 
pass  over  defe'  i.  ''s  railway  to  Troy,  hear- 
ing the  call  "  t^  ;  out  for  Troy  "  got  on  the 
train,  which  moved  to  a  water  tank  in  the 
opposite  direction  '  r  'vater  for  the  engine, 
and  was  injured  I:  .  the  train  returned 
to  the  station,  V  ca-.ion  which  plaintiff 
occupied  to  the  lairc^d,  whether  as  passen- 
ger or  trespasser,  wiU  depend  on  his  rea- 
sonable belief  that  the  train  was  about  to 
depart  for  Troy,  justified  by  some  conduct 
on  the  part  of  defendant's  officers  or  servants 
having  control  of  the  movements  of  the 
train.  Brcxvn  v.  Scarboro,  58  Am.  &*  Eng. 
R.  Cas.  364,  97  Ala.  316,  12  5tf.  Rep.  289. 

A  passenger  who  immediately  gets  on  a 
car  again  after  having  been  put  ofl  is  a  tres- 
passer. If  the  first  expulsion  was  unlawful 
he  should  submit  to  it,  and  depend  on  re- 
covering damages.  North  Chicago  St.  R. 
Co.  V.  Olds,  40  ///.  App.  421, 

A  complaint  showed  that  plaintiff,  who 
was  casually  passing,  at  the  request  of  a 
train  employ6  got  upon  a  car  that  was 
moving  slowly  on  a  switch  and  applied  the 
brakes,  and  while  so  employed  .vas  injured 
by  other  employes  carelessly  causing  other 
cars  to  run  down  the  track  against  the  one 
plaintiff  was  on.  Held,  that  plaintiff  was  a 
mere  intermeddler,  to  whom  the  company 
owed  no  duty,  either  as  employe,  passenger, 
or  traveler  on  an  intersecting  highway,  and 
that  the  complaint  was  bad  on  demurrer. 
Ever  hart  v.  Terre  Haute  &*  I.  R.  Co.,  4 
Am.&*  Eng.  R,  Cas.  599,  78  Ind.  292,41  Am. 
Rep.  567.  —  Distinguished  in  Sloan  v. 
Central  Iowa  R.  Co.,  11  Am.  &  Eng.  R. 
Cas.  145,  62  Iowa  728.  Reviewed  in 
Darwin  v.  Charlotte,  C.  &  A.  R.  Co.,  23  So. 
Car.  531,  55  Am.  Rep.  32. 

A  boy  twelve  years  of  age  was  allowed  to 
ride  in  an  exposed  and  dangerous  position 
on  a  train,  with  the  knowledge  and  by 
the  implied  permission  of  those  in  charge. 
Held,  that  he  could  not  be  treated  as  a  tres- 
puser.  Ecliff  v.  Wabash,  St.  L.  &*  P.  R. 
Co.,  64  Mtch.  196,  31  N.  W.  Rep.  180. 


One  upon  a  train  with  the  consent  or 
permission  of  the  conductor,  though  not  a 
passenger  in  the  ordinary  sense  of  the  term, 
is  not  a  trespasser,  and  may  maintain  an 
action  for  injuries  received  by  reason  of  the 
negligence  of  those  in  charge  of  the  train  ; 
at  least  in  the  absence  of  proof  that  the 
conductor  was  without  authority  to  give 
such  permission.  Gradin  v.  St.  Raul  &*  D. 
R.  Co.,  II  Am.  6f  Eng.  R.  Cas.  644,  30 
Minn.  217,  14  N.  W.  Rep.  881. 

The  fact  that  a  conductor  of  a  freight 
train  did  not  eject  a  person  after  discover- 
ing him  in  the  caboose  does  not  constitute 
him  a  passenger.  Atchison,  T.  &*  S.  F.  R. 
Co.  V.  Headland,  18  Colo.  477,  33  Pac.  Rep. 
185.— Reviewing  Elkins  v.  Boston  &  M.  R. 
Co.,  23  N.  H.  275. 

Who  is  not  a  trespasser  on  a  train.  Lake 
Shore  &•  M.  S.  R.  Co.  v.  Rosenzweig,  26 
Am.  &*  Eng.  R.  Cas.  489,  113  Pa.  St.  519,  6 
All.  Rep.  545. 

Plaintiff  boarded  a  train  on  defendant's 
road  to  make  a  return  trip  with  the  return 
coupon  of  a  round-trip  ticket,  good  for  a 
limited  time  only,  and  that  time  had  expired. 
When  called  upon  for  his  ticket  by  the  con- 
ductor, he  offered  the  coupon,  which  was 
refused ;  he  then  offered  to  pay  the  differ* 
ence  between  its  redeemable  value  and  full 
fare,  which  was  also  refused,  and  he  was 
expelled  from  the  train  at  a  dangerous 
place  near  other  railroad  tracks,  where  he 
was  struck  by  a  passing  train  and  severely 
injured.  Held:  (1)  that  no  irrebuttable 
presumption  arises  that  plaintiff  was  famil- 
iar with  the  rules  of  the  company  prohibit- 
ing him  from  riding  on  his  expired  coupon 
by  paying  to  the  conductor  the  difference 
between  its  redeemable  value  and  full  fare. 
If  he  supposed  that  he  was  entitled  to  pas- 
sage on  such  terms,  he  was  not  to  be  re- 
garded as  a  trespasser,  but  merely  as  a 
passenger  who  had  made  a  mistake.  The 
question  as  to  which  capacity  he  occupied 
should  be  submitted  to  the  jury.  (2)  Even 
though  he  was  a  trespasser,  he  should  not 
have  been  ejected  without  a  reasonable  re- 
gard for  his  safety,  and  whether  such  regard 
was  used  or  not  was  a  question  for  the 
jury.  Arnold  v.  Pennsylvania  R.  Co.,  28  Am. 
&•  Eng.  R.  Cas.  189,  115  Pa.  St.  135,  8  Atl. 
Rep  213.— Quoted  in  Newhard  v.  Penn- 
sylvania R.  Co.,  153  Pa.  St.  417. 

A  woman  entered  a  passenger  car  falsely 
representing  herself  to  be  the  wife  of  a  man 
holding  a  pass  over  tiie  road,  for  the  pur- 


TRESPASSERS,   INJURIES  TO,  13. 


1123 


he  consent  or 

though  not  a 

se  of  the  term, 

^  maintain  an 

y  reason  of  the 

of  the  train ; 

iroof  that  the 

hority  to  give 

St.  Paul  &>  D. 

Cas.  644,  30 

I. 

>r  of  a  freiglit 
after  discover- 
not  constitute 
T.  &•  S.  F.  R. 

\  33  ^<»<^-  ^*P- 
Boston  &  M.  R. 

a  train.  Lakt 

Rosenzweig,  26 

Pa.  St.  519,  6 

on  defendant's 
rith  the  return 
:et,  good  for  a 
ne  had  expired, 
ket  by  the  con- 
ton,  which  was 

pay  the  diiTer> 
!  value  and  full 
d,  and  he  was 
t  a  dangerous 
acks,  where  he 
tin  and  severely 
10  irrebuttable 
intif!  wasfamil- 
npany  prohibit- 
expired  coupon 

the  difference 
e  and  full  fare, 
entitled  to  pas- 
s  not  to  be  re- 
it  merely  as  a 
,  mistake.  The 
ty  he  occupied 
jury.  (2)  Even 
-,  he  should  not 
\  reasonable  re- 
her  such  regard 
uestion  for  the 
t'a  R.  Co.,  28  Am. 
.  St.  135,  8  Atl. 
rhard  v,  Penn- 
417. 

nger  car  falsely 
e  wife  of  a  man 
ad,  for  the  pur- 


pose of  avoiding  paying  the  fare.  While 
riding  she  was  injured  by  the  cars  being 
thrown  from  the  track.  Held,  that  the  com- 
pany owed  her  no  duty  except  that  it  should 
abstain  from  intentional  injury,  or  that  it 
should  not  be  guilty  of  gross  .  egiigence. 
Handley  v.  Houston  &'  T.  C.  R.  Co.,  2  Tex. 
Unrep.  Cas.  282. 

Where  a  passenger  has  full  knowledge 
that  a  railroad  schedule  has  been  changed 
so  that  one  train  each  way  will  not  stop  at 
all  stations,  and  that  there  are  other  trains 
giving  ample  accommodation,  but  where  he 
persists  in  entering  the  train  which  does  not 
stop  at  the  station  at  which  he  wishes  to 
get  oil,  it  is  proper  to  instruct  the  jury,  in 
a  suit  by  him  for  being  carried  past  the  sta- 
tion, that  the  regulation  of  the  company 
was  reasonable  and  one  which  the  company 
had  a  right  to  make,  and  that  if  plaintiff 
entered  the  train  with  knowledge  and  re- 
fused to  leave  after  notice  that  it  would  not 
stop  at  his  station,  he  was  a  trespasser,  and 
was  not  entitled  to  recover  for  a  failure  to 
stop,  and  that  he  was  not  entitled  to  recover 
for  injury  to  his  feelings  if  he  unnecessarily 
took  offense  at  the  language  of  the  con- 
ductor in  telling  him  that  the  train  would 
not  stop.  Texas  A*  P.  R.  C«.  v.  IVhite,  4 
Tex.  App.  {Civ.  Cas.)  451, 17  S.  W.  Rep.  419. 

13.  On  freight  train  or  engine.*  — 
A  person  riding  by  permission  of  the  con- 
ductor, without  paying  fare,  is  not  a  tres- 
passer, though  the  train  is  not  intended  and 
operated  for  the  carriage  of  passengers,  and 
though  the  conductor  has  no  authority  to 
permit  such  person  to  ride.  Alabama  G.  S. 
S.  Co.  v.  Yarbrough,  83  Ala.  238,  3  Am.  St. 
^*P-  7«S.  3  So.  Rep.  447. 

The  failure  of  those  in  charge  of  a  train 
on  which  a  person  had  wrongfully  taken 
passage  to  warn  him  to  get  off  cannot  be 
construed  into  a  permissioa  to  become  a 
passenger  on  the  train.  Bremn  v.  Scarboro, 
58  Am.  &*  Eng.  R.  Cas.  364,  97  Ala.  316,  12 
So.  Rep.  289. 

The  conductor  of  a  freight  train  refused 
to  carry  deceased,  a  crippled  applicant  for 
free  transportation,  but  some  time  after  the 
train  had  started  found  him  in  the  caboose. 
It  being  late  at  night  and  out  in  the  country, 
the  conductor,  from  motives  of  humanity, 
forbore  to  eject  him,  and  he  was  killed  by 


*  Liability  of  company  for  injuries  to  a  bov 
stealing  a  tide  on  a  freight  car,  see  a8  Am.  & 
Eno.  r.  Cas.  s94>  a^ttr. 


a  subsequent  collision,  ffe/d,  that  the  de- 
ceased was  not  a  passengei  within  Mills's 
Ann.  St.  §  1508,  furnishing  a  right  of  action 
where  the  death  of  a  passenger  results  from 
the  defect  or  deficiency  of  a  railroad.  Atchi- 
son, T.  &*  S.  F.  R.  Co.  V.  Headland,  58 
Am.  &*  Eng.  R.  Cas.  4,  18  Colo.  477,  33  Pac. 
Rep.  185.  Hendry X  v.  Kansas  City,  Ft.  S.  &* 
G.  R.  Co.,  45  Kan.  377,  25  Pac.  Rep.  893. 

A  person  riding  unlawfully  on  a  freight 
car  of  a  railroad  train  is  not  a  passenger, 
and  the  railroad  corporation,  as  a  common 
carrier,  owes  no  duty  to  him.  Plana  v. 
Boston  &*  A.  R.  Co.,  157  Max.  377,  32  N.  E. 
Rep.  356. 

An  offer  to  pay  the  fare  on  the  train  to  an 
employe  unauthorized  to  receive  the  same 
is  not  an  offer  to  the  company,  and  in  such 
case  does  not  entitle  the  person  to  a  place 
as  a  passenger  on  a  freight  train.  Cleveland, 
C.  6*  C.  R.  Co.  V.  Bartram,  1 1  Ohio  St.  457. 
—Approved  in  Whitehead  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  39  Am.  &  Eng.  R.  Cas.  410, 
99  Mo.  263,  II  S.  W.  Rep.  751. 

A  pr.son  who  has  purchased  no  ticket 
and  paid  no  fare,  who  goes  to  a  caboose  at- 
tached to  a  frieght  train  and,  without  the 
knowledge  of  those  in  charge  of  such  train, 
attempts  to  get  into  suid  car  at  a  place 
where  the  company  is  not  accustomed  to 
receive  passengers,  is  not  a  passenger,  and 
if  he  is  injured  in  such  attempt  to  board  the 
train,  and  those  in  charge  of  it  have  no 
knowledge  of  his  presence,  the  company  is 
»  ot  liable  for  the  injury.  Haase  v.  Oregon 
?.  <S-  N.  Co.,  44  Am.  6-  Eng.  R.  Cas.  360, 19 
'^''fg-  354.  24  ^"r.  Rep.  238. 

If  a  person  is  informed  by  the  conductor 
that  the  company's  rules  prohibit  passen- 
gers from  traveling  upon  freight  trains,  and 
such  person  nevertheless  enters  the  train,  he 
is  not  a  passenger,  and  cannot  recover  for 
injuries  sustained,  although  subsequently  to 
the  refusal  of  the  conductor  to  carry  him  a 
brakeman  may  have  told  him  to  get  on  the 
train.  Gulf,  C.  <S-  S.  F.  R.  Co.  v.  Campbell. 
41  Am.  &•  Eng.  R.  Cas,  too,  76  Tex.  174, 
135.  IV.  Rep.  19. 

One  riding  on  an  engine  after  notice  that 
such  is  forbidden  by  rules  of  the  company 
is  a  wrong-doer  and  a  trespasser,  even  though 
he  rides  with  the  consent  of  the  engineer. 
Robertson  v.  New  York  6-  E.  R.  Co.,  22  Barb. 
(N.  Y.)  91.  Virginia  Midland  R.  Co.  V. 
Roach.  34  Am.  **  Et^.  R.  Cas.  271,  83  Va. 
375,  5  S.  E.  Rep.  175.  Chicago  6-  A.  R.  Co. 
V.  Miehit,  83  ///.  437.    See  also  Fihs  v. 


1124 


TRESPASSERS,   INJURIES  TO,  14-17. 


J' 


i-i 


It 


!'!  ' 


Bos/Oft  &*  A.  R.  Co.,  149  Mast.  204,  iiN.E. 
Rep.  311. 

Where  by  special  contract  for  the  trans- 
portation of  horses  one  person  is  allowed 
to  ride  free  with  them  to  take  care  of  them, 
such  person,  though  not  in  strictness  a  pas- 
senger, is  no  trespasser  or  intruder,  and  the 
company  owes  him  the  duty  to  carry  him 
safely  by  the  exercise  of  reasonable  care. 
Lawson  v.  Chicago,  St.  P.,  M.&*  O.  R.  Co., 
21  Am.  6-  Eng.R.  Cas.  249,  64  IVis.  447,  24 
N.  W.  Rep.  618.  54  Am.  Rep.  634. 

Where  a  person,  by  giving  a  tip  or  bribe 
to  the  conductor  of  a  train  not  intended  for 
the  conveyance  of  ordinary  passengers,  as  he 
had  reason  io  know,  induces  the  conductor 
to  permit  him  to  travel  contrary  to  the 
regulations  of  the  com{  ary,  lie  does  so  at 
his  own  risk ;  and  if,  while  so  traveling,  he 
is  injured  by  a  collision,  he  is  not  entitled 
to  be  indemnified  by  the  company  for  any 
damage  to  person  or  property  sustained  by 
him.  Canadian  Pac.  R.  Co.  v.  Johnson,  6 
Montr.  L.  R.  213. 

14.  On  pay  train.  —  A  company  pro- 
viding sufficient  trains  and  cars  to  accom- 
modate all  the  traveling  public  over  its  line 
has  the  legal  right  to  run  special  trains  for 
the  purpose  of  carrying  provisions  and  pay- 
ing its  employes,  and  to  prohibit  any  person 
from  traveling  on  such  trains,  and  if  plain- 
tiff enters  a  car  attached  to  the  same, 
knowing  its  character,  without  the  consent 
of  the  corporation  or  its  agent,  he  becomes 
a  trespasser.  Southwestern  R.  Co.  v.  Single- 
ton,  66  Ga.  252. 

15.  On  timber  train.— Plaintiff,  with- 
out mvitation  or  payment  of  fare,  was 
traveling  upon  a  timber  train,  forbidden  to 
carry  passengers,  upon  defendant's  road. 
In  a  collision  brought  about  by  the  negli- 
gence of  defendant's  servants  in  operating 
this  timber  train  plaintiff,  in  leaping  from 
the  train,  was  injured.  Held,  that  he  was 
a  trespasser  and  not  entitled  to  recover 
damages,  except  for  wilful,  wanton,  or  inten- 
tional injury  by  defendant,  and  the  court 
should  have  so  instructed  the  jury.  Illinois 
C.  R.  Co.  V.  Meacham,  91  Tenn.  428,  19 
5.  W.  Rep.  232. 

10.  On  velocipede.— A  person  riding 
on  a  railroad  velocipede,  without  having 
obtained  the  company's  consent,  is  a  tres- 
passer, and,  in  the  event  of  injury  resulting 
therefrom,  no  action  can  be  maintained 
against  the  company,  unless  wilful  negli- 
gence on  its  part,  which  could  have  been 


avoided,  is  proven.  Craig  v.  Mt.  Carbon  Co., 
45  Fed.  Rep.  448. 

No  action  can  be  maintained  in  such  case 
where  permission  was  asked  for  and  given 
by  the  company  so  to  use  the  track  at  plain- 
tiff's own  risk,  unless  defendant  was  guilty 
of  wilful  negligence.  Craig  v.  Mt.  Carbon 
Co.,  45  Fed.  Rep.  448. 

Mere  acquiescence  on  the  part  of  the 
company  to  such  use  of  the  track  gives  no 
right,  but  in  such  case  the  person  so  using 
is  a  trespasser,  and  no  action  can  be  main- 
tained, unless  defendant  was  guilty  of  wilful 
negligence.  Craig  v.  Mt.  Carbon  Co.,  45 
Fed.  Rep.  448. 

17.  On  trains  after  refusal  to  pay 
fare.* — One  who,  having  entered  a  train  as 
a  passenger,  persistently  refuses  to  pay  his 
fare,  and  becomes  boisterous  and  uses  pro- 
fane and  obscene  language,  is  a  trespasser, 
not  a  passenger.  Louisville  &*  N.  R.  Co.  v. 
Johnson,  47  Am.  fi-  Eng.  R.  Cas.  61 1,  92  Ala. 
204,  9  So.  Rep.  269. 

A  person  traveling  on  a  free  pass  issued 
to  a  different  person,  which  is  not  transfer- 
able, and  passing  himself  as  the  person 
therein  named,  is  guilty  of  such  fraud  as  to 
bar  his  right  to  recover  for  a  personal  in- 
jury, except  for  gross  negligence  on  the  part 
of  the  company  amounting  to  wilful  injury. 
Toledo,  IV.  <J-  JT.  R.  Co.  v.  Beggs,  85  ///.  80. 
—  Distinguished  in  Robostelli  v.  New 
York.  N.  H.  &  H.  R.  Co..  34  Am.  &  Eng.  R. 
Cas.  515,  33  Fed,  Rep.  796.  Quoted  in 
Way  V.  Chicago,  R.  I,  &  P.  R.  Co.,  64  Iowa 
48,  52  Am.  Rep.  431. 

The  instant  one  in  a  car  refuses  to  pay  his 
full  fare  and  to  comply  with  the  reasonable 
rules  of  the  company  he  becomes  a  tres- 
passer. Laie  Erie  &*  W.  R.  Co.  v.  Mays,  4 
Ind.  App.  413,  30  A^.  E.  Rep.  1106. 

Where  a  person  purchases  a  ticket  for  a 
designated  station,  without  making  any  in- 
quiries or  ascertaining  what  train  stops  at 
the  station  to  which  he  desires  to  go,  and 
subsequently  takes  his  seat  in  a  train  which, 
according  to  the  regulations  of  the  com- 
pany, does  not  stop  at  the  station  for  which 
he  has  the  ticket,  and  such  person  refuses 
to  pay  his  fare,  on  demand  of  the  conductor, 
to  the  next  station  at  which  the  train  is  to 
stop,  and  also  refuses  to  leave  the  train 
when  requested  to  do  so  after  it  has  been 
stopped  at  a  suitable  place  for  that  purpose, 

'Trespasser  on  train  not  a  passenger,  see 
note,  13  Am.  &  Eng.  R.  Cas.  58. 


•      i  I 
■    A 
<  1 


m 


TRESPASSERS,   INJURIES  TO,  18,  19. 


1125 


Mt.  Cardan  Co., 

ed  in  such  case 
for  and  given 
tracic  at  plain- 

lant  was  guilty 
V.  Mt,  Carbon 

le  part  of  the 
traclc  gives  no 
lerson  so  using 
1  can  be  main- 
guilty  of  wilful 
Carbon  Co.,  45 

sfusal  to  pay 

itered  a  train  as 
uses  to  pay  his 
s  and  uses  pro- 
is  a  trespasser, 
S^N.R.  Co.  V. 
':as.  611,  92  Ala. 

free  pass  issued 
is  not  transfer- 
as  the  person 
such  fraud  as  to 
r  a  personal  in- 
;ence  on  the  part 
to  wilful  injury. 
^eggs.  85  ///.  80. 
lostelli   V.   New 
Am.  &  Eng.  R. 
6.    Quoted  in 
R.  Co.,  64  Iowa 

efuses  to  pay  his 
1  the  reasonable 
becomes  a  tres- 
?.  Co.  V.  Mays,  4 

1 106. 
IS  a  ticket  for  a 

making  any  in- 
it  train  stops  at 
sires  to  go,  and 
in  a  train  which, 
)ns  of  the  com- 
itation  for  which 
1  person  refuses 
)f  the  conductor, 
I  the  train  is  to 

leave  the  train 
after  it  has  been 
for  that  purpose, 


a  passenger,  see 
58. 


such  person  is  a  trespasser.  Atchison,  T.  &* 
S.  F.  R.  Co.  V.  Gants,  34  Am.  &*  Eng.  R. 
Cas.  290.  38  Kan.  608.  17  Pac.  Rtp.  54. 

Plaintiff,  at  M.,  desiring  to  go  to  W.,  en- 
tered one  of  defendant's  regular  passenger 
trains  about  to  start  for  the  latter  place. 
Before  he  learned  that  he  could  get  no  seat 
the  train  was  going  at  a  high  rate  of  speed. 
He  asked  the  conductor  to  provide  him  a 
seat,  but  the  conductor  refused.  On  his  fare 
being  demanded,  plaintiff  offered  to  pay  it 
if  a  seat  were  provided  him,  but  refused  to 
pay  it  unless  a  seat  were  provided.  Held, 
that  plaintiff  had  a  right  so  to  refuse  to  pay 
the  fare,  and  he  did  not  thereby  become  a 
trespasser,  for  a  passenger  has  a  right  to 
be  provided  with  a  seat.  Hardenbergh  v. 
St.  Paul,  M.  &*  M.  R.  Co.,  34  Am.  <S-  Eng.  R. 
Cas.  359.  39  Minn.  3.  38  N.  W.  Rep.  625, 12 
Am.  St.  Rep.  610.— Reviewing  Maples  v. 
New  York  &  N.  H.  R.  Co..  38  Conn.  557. 

One  who  enters  a  passenger  coach  with- 
out a  ticket  becomes,  on  refusing  to  pay 
his  fare,  a  trespp-iSer  ab  initio.  Moore  v. 
Columbia  &*  G.  ^..  Co.,  58  Am.  &*  Eng.  R. 
Cas.  493.  38  So.  Car.  \,  16  S.E.  Rep   781. 

18.  Dazed  passenger  on  track.— 
Where  a  passenger  injured  by  a  fall  from  a 
train,  and  in  a  dazed  state,  is  knowingly  left 
by  the  carrier  upon  the  track,  he  will  not  be 
regarded  as  a  trespasser.  Cincinnati,  I.,  St. 
L.  &*  C.  R.  Co.  v.  Cooper,  120  Ind.  469,  22 
N.  E.  Rep.  340,  6  L.  R.  A.  241. 

19.  Employes  —  Post.al  clerks.*— 
Where,  by  mutual  consent,  two  companies 
having  their  tracks  adjacent  and  parallel, 
on  some  of  which  cars  in  large  numbers  are 
habitually  left  standing,  permit  the  watch- 
men employed  by  the  companies  respect- 
ively to  walk  and  stand  upon  the  unoccupied 
tracks  of  each  other,  including  the  main 
lines,  for  the  purpose  of  examining  the  stand- 
ing cars  with  a  view  to  taking  and  report- 
ing the  initials  and  numbering  inscribed 
thereon,  a  watchman  while  so  employed  and 
deporting  himself  in  th3  usual  way.  recog- 
nized  as  fit  and  proper  by  both  companies, 
is  not  a  trespasser.  IVntts  v.  Richmond  &• 
D.  R.  Co..  89  Ga.  277.  \lS.  E.  Rep.  365. 

The  fact  that  a  postal  clerk  does  extra 
work  on  a  train,  while  not  on  his  regular 
run,  does  not  make  him  a  trespasser,  nor 
affect  the  liability  of  the  company  for  dam- 
ages sustained  by  reason  of  the  company's 


»  See  also  Carriage  of  Mails,    17,    18; 
Carriage  of  Passengers,  54. 


negligence.  Cleveland,  C,  C.  &*  St.  L.  R. 
Co.  V.  Ketcham,  133  Ind,  346,  33  A',  E. 
Rep.  116. 

If  tlie  deceased,  and  other  employ63  of 
the  company  which  he  served,  had,  for  a 
considerable  time  prior  t.o  the  accident, 
been  accustomed  to  use  the  track  of  defend- 
ant at  and  near  the  place  of  the  accident, 
for  the  purpose  of  giving  signals,  with  the 
acquiescence  of  the  defendant,  then  the 
deceased  was  not  a  t  passer  on  the  track. 
McMar shall  v.  Chia.^  ,  R.  I.  <S-  P.  R.  Co., 
80  Iowa  757,  45  A^.  W.  Rep.  1063. 

A  company  constructed  its  tracks  across 
a  private  way,  which  connected  two  public 
ways  of  a  city,  and  over  which  there  was 
much  travel.  At  the  crossing  it  put  up  a 
sign,  upon  which  was  the  following:  "This 
is  not  a  public  way,  and  is  dangerous." 
Held,  in  an  action  against  the  corporation 
by  a  person  injured  at  the  crossing  by  being 
struck  by  a  locomotive  engine,  that  the  cor- 
poration was  not  entitled  to  a  ruling,  as 
matter  of  law,  that  this  sign  was  a  denial  of 
the  right  of  crossing,  and  that  a  person 
crossing  did  so  at  his  own  risk.  O  Connor 
v.  Boston  &•  L.  R.  Corp.,  1 5  Am.  &*  Eng.  R. 
Cas.  362,  135  Mass.  352. 

The  deceased  was,  and  for  a  long  time 
had  been,  in  the  employ  of  defendant  as 
foreman  in  a  paint-shop,  and  lived  about 
a  mile  south  of  the  shop.  In  going  to 
his  home  and  coming  therefrom  he  was 
accustomed  to  walk  upon  the  track,  it 
being  much  the  shortest  distance  to  travel, 
and  this  he  did  with  the  knowledge  and  per- 
mission of  defendant.  Held,  that  he  was  not 
a  trespasser.  Baumeesfer  v.  Grand  Rapids 
6-  /.  R.  Co.,  28  Am.  &*  Eng.  R.  Cas.  476, 
63  Mich.  557,  30  N.  W.  Rep.  337.  — Dis- 
tinguished IN  O'Donnell  v.  Duluth,  S.,  S. 
A  A.  R  Co.,  89  Mich.  174. 

Plaintiff,  a  grader  in  the  employment  of 
defendant,  was  injured  by  an  accident  which 
occurred  while  he  was  riding  upon  a  gravel 
train.  The  graders  had  returned  to  the 
camp  during  the  day  and  were  informed 
that  they  would  not  be  required  to  go  out 
again  during  that  day.  Plaintiff  went  upon 
the  gravel  train  for  the  purpose  of  getting 
his  coat,  which  he  had  left  at  the  place 
where  he  worked,  and  was  returning  when 
the  accident  happened.  The  company  was 
in  the  habit  of  transporting  employes  on 
the  train  daily,  and  the  conductor  had  con- 
sented to  plaintiff's  riding  upon  it  on  the 
jiarticular    occasion.      Held,   that   plaintiff 


;t    -m-. 


1126 


TRESPASSERS,  INJURIES   TO,  20, 81. 


m^- 


W 


i^ 


!  !  : 


i!^ 


was  not  a  mere  trespasser  upon  the  train, 
and  that  defendant  was  responsible  for  de- 
fects in  the  track  causing  the  accident. 
Rosenbaum  v.  St,  Paul  &*  D.  R.  Co.,  34 
Am.  &*  Eng.  R.  Cat.  274,  38  Minn,  173,  36 

A^.  w.  nip.  447. 

II.  DITTIES  AND  LIABILITIE8  OF  COXPAHT 
TO  TBE8FAS8EBB. 

I.  Trespassers  on  Track  and  Premises. 

a.  In  General. 

20.  Conapany's  right  to  a  clear 
track.* — Except  at  street  crossings,  where 
the  public  has  a  right  of  way,  a  company 
has  the  right  to  a  clear  track,  and  it  owes 
no  duty  to  trespassers,  whether  they  be 
adults,  minors,  or  children  of  tender  years. 
Cauley  v.  Pittsburgh,  C.  &*  St,  L.  R.  Co..  2 
Am.  <S-  Eng.  R.  Cas.  4,  95  Pa.  St.  398. 

Where  there  is  reason  to  apprehend  that 
the  track  may  not  be  clear,  the  pe.sons  in 
charge  of  a  railway  train  cannot  act  on  the 
presumption  that  the  track  is  clear  without 
the  company  being  responsible  for  the  con- 
sequences, and  this  is  true  notwithstanding 
the  company's  right  to  have  a  clear  track. 
Fiedler  v.  St.  Louis,  I.  M.  5-  S.  R.  Co.,  54 
Am.  6-  Eng.  Ji.  Cas.  162,  107  Mo.  645,  18 
S.  W.  Rep.  847.  — Following  Barker  v. 
Hannibal  &  St.  J.  R.  Co.,  98  Mo.  $0;  Dunk- 
man  V.  Wabash,  St.  L.  &  P.  R.  Co.,  95 
Mo.  232 ;  Williams  v.  Kansas  City,  S.  &  M. 
R.  Co.,  96  Mo.  275. 

The  servants  of  a  company  operating  its 
trains  in  the  country  at  night  have  a  right  to 
assume  that  the  track  is  clear,  and  are  under 
no  obligations  to  provide  for  the  safety  of 
persons  who  may  6e  on  it.  Even  if  they 
know  the  track  is  used  as  a  footpath,  this 
will  not  exonerate  any  one  so  using  it  from 
the  duty  of  taking  proper  care  to  avoid 
injury.  Yarttallv.  St.  Louis,  K.  C.  6*  N. 
R.  Co.,  10  Am.  &•  Eng.  R.  Cas.  726, 75  Mo.  575. 
— Followed  in  Newport  News  &  M.  V. 
Co.  V.  Howe,  52  Fed.  Rep.  36-.,  6  U.  S.  App. 
172,  3  C.  C.  A.  121. 

21.  to  exclusive  use  of  track 

and  premises. — A  company  has  the  un- 
doubted right  to  the  exclusive  use  of  its 
roadway,  except  at  public  crossings,  foi  the 
unimpeded  passage  of  its  trains;  but  not- 
withstanding this  right  the  company  is  still 
bound  to  use  ordinary  care  to  avoid  injury 
to  persons  who  may  be  upon  or  near  the 

*  Duty  of  company  tn  trespassers  and  licensees 
on  track,  see  31  Am.  &  Eno.  R.  Cas.  373,  odstr. 


track.  Kansas  Pac.  R.  Co.v.  Ward,  4  Colo. 
30.  —  Distinguished  in  Colorado  C.  R. 
Co.  V.  Holmes,  8  Am.  &  Eng.  R.  Cas.  410,  5 
Colo.  197. 

A  company  has  exclusive  right  to  occupy, 
use.  and  enjoy  its  tracks,  trestlework,  and 
bridgcJ,  and  any  person  walking  upon  a 
track,  or  bridge,  or  any  part  of  the  same, 
without  the  consent  of  the  company,  is  there 
wrongfully,  and  therefore  is  a  trespasser; 
and  in  case  of  an  injury  from  the  movement 
or  operation  of  cars,  he  is  without  remedy 
unless  It  be  proved  by  affirmative  evidence 
that  the  injury  resulted  from  negligence  so 
gross  as  to  amount  to  wantonness.  Mason 
V.  Missouri  Pac.  R.  Co.,  6  Am.  &*  Eng.  R. 
Cas.  I,  27  Kai    83,  41  Am.  Rep.  405. 

The  right  a  company  to  use  its  track  is 
exclusive  of  the  public,  except  where  the 
public  have  the  right  to  cross  it,  or  where 
the  use  of  the  road  in  a  reckless  or  improper 
manner  must  necessarily  endanger  the  lives 
of  those  whose  proximity  to  it  requires  the 
exercise  of  care  and  caution.  Louisville  &* 
N.  R.  Co,  V.  Howard,  19  Am.  &•  Eng.  R.  Cas. 
98,  82  A>.  212.— Followed  in  Louisville 
&  N.  R.  Co.  V.  Schuster,  (Ky.)  35  Am.  & 
Eng.  R.  Cas.  407,  7  S.  W.  Rep.  874. 

A  company  is  entitled  to  the  exclusive 
use  of  its  grounds,  except  at  lawful  cross- 
ings of  public  and  private  ways.  Without 
a  breach  of  legal  duty,  it  is  not  guilty  of 
actionable  negligence.  Omaha  &»  R.  V. 
R.  Co.  V.  Martin,  19  Am.  &*  Eng.  R.  Cas. 
236,  14  JVeb.  295,  15  A':  IV.  Rep.  696.— 
Quoting  Pittsburgh.  Ft.  W.  &  C.  R.  Co.  v. 
Bingham,  29  Ohio  St.  364. 

The  use  of  a  track,  cutting,  or  embank- 
ment, except  at  lawful  crossings  of  public 
roadi  or  highways,  is  exclusively  for  the 
company  and  its  employ6s.  Hence,  where 
want  of  ordinary  care  is  not  shown,  a  rail- 
road company  it  not  liable  for  an  injury  to 
a  person  on  the  road,  where  he  had  no  right 
to  be.  Philadelphia  6-  R.  R.  Co.  v.  Hum- 
melt,  44  Pa.  St.  375.  —  Distinguished  in 
Smith  V.  Atchison,  T.  &  S.  F.  R.  Co.,  4 
Am.  &  Eng.  R.  Cas.  554, 25  Kan.  738;  Keffe 
V.  Milwaukee  &  St.  P.  R.  Co.,  21  Minn.  207  ; 
Kay  V,  Pennsylvania  R.  Co.,  65  Pa.  St.  269 ; 
Pennsylvania  R.  Co.  v,  Lewis,  79  Pa.  St.  33. 
Followed  in  Tanner  v.  Louisville  &  N.  R. 
Co.,  60  Ala.  621.  Quoted  in  Candelaria 
V.  Atchison,  T.  &  S.  F.  R.  Co.,  (N.  Mex.)  48 
Am.  &  Eng.  R.  Cas.  565,  27  Pac.  Rep.  497; 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Monday,  31 
Am.  &  Eng.  R.  Cat.  424,  49  Ark.  257,48.  W. 


TRESPASSERS,   INJURIES  TO,  82, 23. 


1127 


tVard,  4  CoU. 
/olorado  C.  R. 
'.  R.  Cas.  410,  5 

right  to  occupy, 
estlework,  and 
talking  upon  a 
rt  of  the  same, 
tmpany,  is  there 
Is  a  trespasser; 
1  the  movement 
vithout  remedy 
lative  evidence 
n  negligence  so 
anness.  Mason 
im.  &*  Ettff.  R. 
^tp.  405. 

>  use  its  track  is 
cept  where  the 
3ss  it,  or  where 
lessor  improper 
danger  the  lives 
)  it  requires  the 
I.  Louisville  &• 
.  &*  Eng.  H.  Cas. 
D  IN  Louisville 
Ky.)  35  Am.  & 
Lep.  874. 

:o  the  exclusive 
at  lawful  cross- 
ways.  Without 
is  not  guilty  of 
naka  &*  R.  V. 
&*  Eng.  R.  Cas. 
fV.  Rep.  696.  — 
IT.  &  C.  R.  Co.  V. 

ing,  or  embank- 
ssings  of  public 
lusively  for  the 
Hence,  where 
it  shown,  a  rail- 
for  an  injury  to 
;  he  had  no  right 

R.  Co.  V.  Hum- 
STINGUISHED  IN 
S.  F.  R.  Co..  4 

Kan.  738 ;  Keffe 
o.,2l  Minn.  207  ; 
.,  65  Pa.  St.  269 ; 
iris,  79  Pa.  St.  33. 
ouisville  &  N.  R. 
D  IN  Candelaria 
:o.,  (N.  Mex.)  48 
7  Pac.  Rep.  497; 
>.  V.  Monday,  31 
Ark.  257,4  s.  W. 


Rep.  782 ;  Toomey  v.  Southern  Pac.  R.  Co., 
86  Cal.  374  ;  Jeflersonville,  M.  &  I.  R.  Co. 
V.  Goldsmith,  47  Ind.  43  ;  Solen  v.  Virginia 
&  T.  R.  Co.,  13  Nev.  106,  Fredericks  v. 
Northern  C.  R.  Co.,  157  Pa.  St.  103:  Davis 
V.  Chicago  &  N.  W,  R.  Co..  15  Am.  &  Eng. 
R.  Cas.  424,  58  Wis.  646,  46  Am.  Rep.  667. 

22.  Assumption  of  risk  by  tres- 
passer. —  Between  stations  and  public 
crossings  a  track  belongs  exclusively  to  the 
company,  and  all  persons  who  walk,  ride,  or 
drive  thereon  are  trespassers ;  and  if  such 
persons  so  walk,  ride,  or  drive  thereon  at 
the  sufferance  or  with  the  permission  of  the 
company,  they  do  so  subject  to  all  the  risks 
incident  to  so  hazardous  an  undertaking, 
and  if  they  are  injured  by  a  train  the  com- 
pany is  not  liable,  unless  the  injury  was 
wantonly  or  intentionally  inflicted.  Jef' 
fersonvillj,  M.  &*  I.  R.  Co.  v.  Goldsmith,  47 
Ind.  43,  8  Am.  Ry.  Rep.  315.— FOLLOWING 
Gillis  V.  Pennsy'vania  R.  Co.,  59  Pa.  St. 
129.  Quoting  Philadelphia  &  R.  R.  Co. 
V.  Hummell,  44  Pa.  St.  375 ;  Sherlock  v. 
Ailing,  44  Ind.  T84.  -  -  Distinguished  in 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Head,  4 
Am.  &  Eng.  R.  Cas.  619,  80  Ind.  117.— Mc- 
Claren  v.  Indianapolis  &•  V.  R,  Co.,  8  Am, 
fr»  Eng.  R.  Cas.  217,  83  Ind.  319. —  Fol- 
lowed IN  Masser  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  68  Iowa  602. 

It  is  impracticable  to  keep  trespassers  oil 
an  open  track,  and  all  who  go  upon  it  do 
so  at  their  own  risk.  Sturgis  v.  Detroit,  G. 
H.  &*  M.  R.  Co.,  72  Mich.  619,  40  N.  W. 
Rtp.  914. 

One  who  goes  upon  the  tracks  of  a  com- 
pany at  a  place  not  a  highway  crossing,  for 
his  own  convenience,  becomes  a  trespasser 
and  assumes  the  risk  of  his  conduct.  The 
company  owes  to  such  a  person  no  duty  to 
facilitate  his  trespass  or  to  render  it  safe ;  it 
is  only  liable  for  the  negligence  of  its  serv- 
ants after  the  presence  of  such  trespasser 
on  the  track  has  been  discovered.  Cande- 
laria V.  Atchison,  T.  *-  S.  F.  R.  Co.,  (N. 
Mex.)  48  Am.  &*  Eng.  R.  Cas.  565,  27  Pac. 
Rep.  497.— Quoting  Philadelphia  &  R.  R. 
Co.  V.  Hummel,  44  Pa.  St.  378. 

23.  Company's  duty,  generally.*— 
There   can  be  no  recovery  for  the  death 


•  Duty  that  company  owes  to  trespassers  on 
track,  see  notes,  30  Am.  St.  Rep.  53  ;  Id.  687 ; 
4  Am.&  Eng.  R.  CA3.  572;  6  Id.  17;  19  Id.  in; 
23/</.  467;  31  Id.  373;  34  Jd.  55;  48  Id.  559; 
6L.  R.  A.  243;  \o  Jd.  139;  II  Id.  385;  lild. 
S48;  sa  Am  Ref.  434. 


of  a  person  killed  while  negligently  on  • 
track  where  the  trainmen  neither  knew  of 
his  perilous  position  in  tune  to  avoid  the 
accident,  nor  were  reckless  or  wantonly 
negligent  in  not  so  knowing  it.  Simple 
negligence  in  failing  to  see  him  will  not  au- 
thorize a  recovery  when  plaintiff  was  guilty 
of  contributory  negligence.  Nave  v.  Ala- 
bama G.  S.  R.  Co.,  54  Am.  &»  Eng.  R.  Cas. 
151,96  Ala.  264,  II  So.  Rep.  391.— QUOTING 
Glass  V.  Memphis  &  C.  R.  Co.,  94  Ala.  581, 
10  So.  Rep.  218;  Savannah  &  W.  R.  Co.  v. 
Meadors,  95  Ala.  137,  10  So.  Rep.  142. 

Plaintiil  was  walk'.ng  on  a  track  which 
had  been  used  generally  as  a  pathway  for 
many  years,  and  upon  hearing  a  coming 
train  stepped  some  eight  or  nine  feet  from 
the  track,  near  an  embankment  several  feet 
high.  He  testified  that  just  as  the  train 
passed,  at  a  rate  of  sixty  miles  an  hour,  he 
saw  the  shadow  of  something  in  the  air  and 
was  felled  to  the  ground.  A  severe  wound 
was  found  on  the  side  of  his  head,  made  by 
some  blunt  instrument.  Afterwards  a  piece 
of  wood  similar  to  that  used  on  the  locomo- 
tive was  found  embedded  in  the  bank  where 
he  stood,  but  there  was  no  direct  evidence 
that  the  wood  was  thrown  or  fell  from  the 
train  or  that  it  struck  him.  Held,  that 
as  there  was  no  contractual  relation  between 
plaintiff  and  the  company,  there  was  not 
sufficient  evidence  to  raise  a  presumption  of 
negligence.  Lucas  v.  Richmond  &*  D.  R. 
Co.,  40  Fed.  Rep.  566. 

A  company  owes  no  duty  to  a  trespasser 
other  than  not  to  injure  him  if  it  knows  of 
his  presence  or  sees  him  in  time  to  prevent 
injury.  Rome  R.  Co.  V.  Tolbert,  85  Ga.  447, 
i\  S.  E.  Rep.  849.  Chicago  <S-  E.  I.  R.  Co. 
V.  Hedges,  25  Am.  &•  Eng.  R.  Cas.  550.  105 
Ind.  398, 7  A'.  E.  Rep.  801.— DISTINGUISHED 
IN  Dennis  v.  Louisville,  N.  A.  &  C.  R.  Co., 
35  Am.  &  Eng.  R.  Cas.  -41,  !i6  Ind.  42,  15 
West.  Rep.  547,  18  N.  E.  Rep.  179.  i  L.  R. 
A.  448. — Masser  v.  Chicago,  R.  I.  b*  P.  R. 
Co.,  68  Iowa  602,  27  N.  W.  Rep.  776.  Conl^ 
V.  Cincinnati,  N.  0.  &*  T.  P.  R.  Co.,  41  Am. 
&-  Eng.  R  Cas.  537,  89  A>.  402,  12  S.  IV. 
Rep.  764. 

One  who  goes  upon  a  track  at  a  place  other 
than  a  crossing,  where  the  company  is  re- 
quired to  fence  its  road,  and  has  so  fenced 
it,  there  being  nothing  in  the  surroundings 
that  would  naturally  or  reasonably  lead  the 
company's  srrvants  to  suspect  his  presence, 
is  a  trespasser,  and  the  company  owes  him 
no  duty  except  not  to  injure  him  wantonly, 


TS" 


1128 


TRESPASSERS,   INJURIES  TO,  24, 26. 


i  S'  ■!■ 


wilfully,  or  with  gross  negligence,  and  is 
not  in  duty  bound  to  look  out  for  him. 
Barktr  v.  Hannibal  *•  St,  J.  R.  Co.,  37  Am. 
6*  Eng.  R.  Cas.  29a,  98  Mo.  50,  11  S.  W. 
Rep.  254.— Distinguished  in  Hilz  v.  Mis- 
souri Pac.  R.  Co.,  loi  Mo.  36.  Followed 
IN  Fiedler  v.  St.  Louis,  I.  M.  &  S.  R.  Co., 
107  Mo.  64J. 

The  duty  which  a  company  owes  to  a 
person  crossing  its  tracks  at  a  point  other 
than  a  public  highway  may  not  be  precisely 
that  owed  to  a  person  crossing  at  the  latter 
point,  still  there  is  an  obligation  on  the  part 
of  the  company  to  use  ordinary  care  and 
prudence  to  protect  him  from  injury.  Wins- 
low  V.  Boston  &*A.  R.  Co.,  11  N.Y.  S.  R.83U 
—Quoting  Barry  v.  New  York  C.  &  H.  R. 
R.  Co.,  92  N.  Y.  289;  Byrne  v.  New  York 
C.  &  H.  R.  R.  Co.,  104  N.  Y.  362.  5  N.  Y. 
S.  R.  722. 

Railway  companies  are  bound  to  exercise 
their  dangerous  business  with  due  care  to 
avoid  injury  to  others,  and  when  they  fall 
to  do  so  they  are  liable  in  damages  for  in- 
jury resulting  even  to  a  trespasser  who  has 
not  been  guilty  of  contributory  negligence. 
Houston  5-  T.  C.  R.  Co.  v.  Sympkins,  6  Am. 
&»Eng.  R.  Cas.  Ii,  54  Tex.  615. 

24.  Distinguished  from  duty  to 
passenger.  — A  company  is  not  bound  to 
the  same  degree  of  care  in  regard  to  mere 
strangers  who  are  unlawfully  upon  its  prem- 
ises that  it  owes  to  passengers  conveyed 
by  it.  Reary  v.  Louisville,  N.  0.  6*  T,  R. 
Co.,  34  Am.  6*  Eng.  R.  Cas.  277,  40  La. 
Ann.  32,  8  Am.  St.  Rep.  ^97,  3  So.  Rep.  390. 
— Applied  in  O'Connor  v.  Illinois  C.  R. 
Co.,  44  La.  Ann.  339. 

Its  duty  to  strangers  is  governed  by  the 
general  principles  of  law  that  every  one  is 
obliged,  upon  considerations  of  humanity 
and  justice,  to  conform  his  conduct  to  the 
rights  of  others,  and,  in  the  prosecution  of 
his  lawful  business,  to  use  every  reasonable 
precaution  to  avoid  their  injury.  Snyder  v. 
Natchez,  R.  R.  <S-  T.  R.  Co.,  44  Am.  &*Eng. 
R.  Cas.  278, 42  La.  Ann.  302,  7  So.  Rep. 
582.— Applied  in  O'Connors.  Illinois  C.  R. 
Co.,  44  La.  Ann.  339. 

The  obligation  of  a  company  for  the  safe 
transportation  of  a  passenger  is  one  arising 
from  contract  imposing  duties  growing  nut 
of  the  relation  between  the  parties,  involv- 
ing trust  and  confidence,  and  requiring  the 
exercise  of  the  utmost  diligence  and  care, 
while  towards  a  stranger  no  such  relation 
exists ;  each  party,  being  in  the  lawful  pursuit 


of  his  own  business  or  the  lawful  exercise  of 
his  own  rights,  is  not  bound  by  tlie  same 
rigorous  rule,  but  is  required  to  exercise 
such  reasonable  care  to  avoid  injuring  the 
other  as  ordinary  prudence  suggests.  Bal- 
timore <S>»  O.  R.  Co.  V.  Breinig,  25  Md.  378. 
— Approving  Brand  v.  Schenectady  &  T. 
R.  Co.,  8  Barb.  (N.  Y.)  376.  Reviewing 
Baltimore  &  O.  R.  Co.  v.  Worthington, 
21  Md.  275. 

The  amount  or  degree  of  care  which  the 
above  rule  requires  must  vary  according 
to  circumstances,  and  should  be  commen- 
surate with  the  risk  or  danger  of  inflicting 
injury  upon  others.  Baltimore  &*  O.  R. 
Co.  V.  Breinig,  25  Md.  378. 

While  common  carriers  of  passengers  for 
hire  must  exercise  the  highest  degree  of 
care  toward  passengers  wiio  pay,  ordinary 
care  is  sufficient  toward  trespassers.  Higley 
V.  Gilmer,  3  Mont.  90.  —  Distinguishing 
Columbus,  C.  &  I.  C.  R.  Co.  v.  Powell,  40 
Ind.  37:  Philadelphia  &  R.  R.  Co.  v.  Derby, 
14  How.  (U.S.)  483;  Wilton  v.  Middlesex 
R.  Co.,  107  Mass.  108;  Nolton  v.  Western 
R.  Corp.  ,15  N.  Y.  444 ;  Daley  v.  Norwich 
&  W.  R.  Co.,  26  Conn.  391. 

26.  Distinguished  from  duty  to 
persons  lawfully  on  premises.  —  One 
who  walks  upon  a  track,  not  at  a  road  cross- 
ing, is  a  trespasser;  and  while  the  road 
would  be  liable  for  a  wanton  or  wilful  wrong 
of  its  agents,  acting  within  the  scope  of 
their  duty,  or  for  gross  negligence  or  care- 
lessness, evincing  reckless  disregard  of  the 
safety  of  others,  or  where  they  perceive  the 
danger  of  a  party  in  time,  and  make  no 
effort  to  avoid  it,  still,  the  company  is 
under  no  such  obligation  to  a  trespasser  as 
to  those  who  are  properly  and  lawfully  upon 
its  premises,  either  for  the  purpose  of  trans- 
acting legitimate  business  with  it,  or  in 
furtherance  of  rights  reserved  to  them  by 
law.  Central  R.  Co.  v.  Brinson,  19  Am.  &* 
Eng.  R.  Cas.  42,  70  Ga.  207. —  Quoting 
Illinois  C.  R.  Co.  v.  Godfrey,  71  111.  506. 

While  the  obligation  of  a  company  to  a 
trespasser  on  its  track  may  not  be  the  same 
as  to  passengers,  employes,  or  other  persons 
having  business  with  it  and  whose  presence 
there  is  authorized,  or  even  to  persons  who 
are  there  by  its  consent  as  a  favor  or  gra- 
tuity, still,  one  who  places  himself  upon  its 
road,  even  in  violation  of  the  statute,  does 
not  forfeit  all  right  to  have  its  agents  re- 
gard his  personal  security  or  life,  or  exempt 
it  from  liability  for  injury,  if,  by  the  excr- 


llll 


TRESPASSERS,  INJURIES  TO,  26-28. 


1139 


ful  ex<;rcise  of 
by  the  same 
:d  to  exercise 
I  injuring  the 
iggests.  Bal- 
:  25  Md.  378. 
nectady  &  T. 
Reviewing 
Worthington, 

are  which  the 
ary  according 
be  commen- 
r  of  inflicting 
ore  <S-  O.  Ji. 

passengers  for 
est  degree  of 
pay,  ordinary 
ssers.  HigUy 
TINGUISHING 

V.  Powell,  40 
Co.  V.  Derby, 
V.  Middlesex 
n  V,  Western 
y  V.  Norwich 

m  duty  to 
iilses.  —  One 
t  a  road  cross- 
lile  the  road 
r  wilful  wrong 
the  scope  of 
ence  or  care- 
•egard  of  the 
r  perceive  the 
ind  make  no 

company  is 
trespasser  as 
lawfully  upon 
30se  of  trans- 
ith  it,  or  in 
I  to  them  by 
«,  19  Am.  6r- 
.  —  Quoting 
I  111.  506. 
lompany  to  a 
t  be  the  same 
other  persons 
lose  presence 

persons  who 
favor  or  gra- 
iself  upon  its 

statute,  does 
its  agents  re- 
fe,  or  exempt 

by  the  exer- 


cise of  proper  precaution  on  its  part,  the 
casualty  could  have  been  avoided.  Savan' 
nah,  F.  A-  W.  R.  Co.  v.  Sttwart,  71  Ga.  427. 

26.  Degree  of  care  required,  gen- 
erally.*—The  fact  that  a  train  was,  at  the 
time  of  an  accident,  passing  near  (not 
through)  a  small  village  or  collection  of 
houses  containing  about  200  inhabitants, 
from  which  it  was  separated  by  a  fence,  is 
not  a  special  reason  calling  for  greater  dili- 
gence towards  trespassers  walking  on  the 
track.  Carrington  v.  Louisville  &*  N.  R. 
Co..  41  Am.  &•  Eng.  R.  Cas.  543,  88  Ala.  472, 
6  So.  Rep.  910. 

The  fact  that  the  point  where  one  is  in- 
jured while  walking  upon  the  company's 
right  of  way  and  between  its  tracks  is  used 
as  a  public  crossing  will  not  impose  upon 
the  company  any  increase  of  duty  to  such 
person.  Richards  v.  Chicago,  St.  P.  &*  K. 
C.  R.  Co.,  45  Am.  6*  Eng.  R.  Cas.  54,  81 
Jowa  426,  47  N.  W.  Rep.  63. 

The  measure  of  duty  that  a  company 
owes  to  one  on  the  track  where  it  is  laid  on 
the  company's  right  of  way  is  different 
from  what  it  would  be  if  he  was  at  a  cross- 
ing. In  such  case  the  company  is  not  bound 
to  exercise  a  high  degree  of  care,  even 
though  it  be  in  the  corporate  limits  of  a 
city.  Lake  Erie  6-  W.  R.  Co.  v.  Zoffinger, 
10  ///.  App.  252. 

A  company  is  as  much  bound  to  prevent 
injury  to  a  person  on  its  track,  by  using 
all  the  facilities  that  experience  has  pro- 
vided for  the  purpose,  as  the  person  on  the 
track  is  bound  to  use  all  the  means  in  his 
power  to  escape  the  injury,  when  he  is 
aware  that  it  is  impending.  Costcllo  v.  Syra- 
cuse. B.  &*  N.  Y.  R.  Co.,  65  Barb.  (N.  Y.) 
92;  appeal  dismissed  {?)  55  N.  K.  641,  mem. 
—Quoted  in  Zimmer  V.  New  York  C.  & 
H.  R.  R.  Co..  7  Hun  (N.  Y.)  552. 

In  operating  their  engines  upon  their 
yards  railway  companies  are  not  held  to  the 
same  degree  of  care,  so  far  as  strangers  are 
concerned,  as  is  required  at  public  crossings. 
Texas  &*  P.  R.  Co.  v.  Harrington,  3i  Am. 
&*  Eng.  R.  Cas.  571.  62  Tex.  597. 

The  fact  that  pedestrians  are  accustomed 
to  travel  on  a  railroad  at  a  particular  place 
makes  it  the  duty  of  the  company  to  exer- 
cise greater  caution  and  prudence  at  that 
place.  Nuzum  v.  Pittsburgh,  C.  6-  St.  L. 
R.  Co.,  30  W.  Va.  228,  4  S.  E.  Rep.  242. 

*  Duty  owed  by  a  company  to  trespassers  on 
track.  Liability  where  trespasser  is  not  seen, 
see  45  Am.  &  Eng.  R.  Cas.  43,  afistr. 


27<   In   passing  through  city  or 

Tillage.  —  The  right  of  a  company  to  the 
use  of  its  track  is  exclusive  of  the  public, 
save  where  the  public  has  a  right  to  cross 
or  use  it,  or  where  its  use  in  a  reckless 
manner  would  endanger  the  lives  of  those 
whose  nearness  to  it  requires  the  exercise 
of  care  and  caution.  Greater  care  must  be 
exercised  in  the  .ling  of  trains  through 
a  town  or  city  t.'  is  required  upon  a  por- 
tion of  the  road  where  persons  have  no 
license  to  be.  John  v.  Louisville  &*  N.  R. 
Co.,  (Ky.)  lo  S.   V'.  Rep.  417. 

28.  Liability  for  want  of  ordinary 
cure.— One  who  crosses  a  track  in  a  city  at 
a  point  100  feet  distant  from  the  street 
crossing,  at  an  opening  in  a  train,  there  be- 
ing no  evidence  that  such  opening  was 
made  for  pedestrians  to  pass  through,  or 
that  it  was  ever  used  for  that  purpose,  is  a 
trespasser;  and  the  railroad  owes  him  no 
duty  except  not  to  injure  him  if,  by  the  ex- 
ercise of  ordinary  care,  it  could  either  have 
discovered  his  peril  in  time  to  avoid  the 
accident,  or,  after  discovering  it,  could  have 
prevented  the  accident.  Dahlstrom  v.  St 
Louis,  /.  M.  &•  S.  R.  Co.,  35  Am.  &*  Eng. 
R.  Cas.  387.  96  Mo.  99,  15  West.  Rep.  85,  8 

S.  W.  Rep.  777- 

Although  one  may  be  improperly  or  un- 
lawfully on  a  track,  that  fact  will  not  dis- 
charge the  company  or  its  employes  from 
the  observance  of  due  care ;  and  where  he 
is  run  over  by  a  train  and  killed,  the  com- 
pany will  be  responsible  if  its  officers  could 
have  avoided  the  accident  by  the  exercise  of 
ordinary  caution  and  watchfulness.  Isabet 
V.  Hannibal  6-  St.  J.  R.  Co.,  60  Mo.  47S-— 
Distinguished  in  Lary  v.  Cleveland,  C.,C. 
&  I.  R.  Co..  3  Am.  &  Eng.  R.  Cas.  498,  78 
Ind.  323,  41  Am.  Rep.  572;  Frick  v.  St. 
Louis,  K.  C.  &  N.  R.  Co..  5  Mo.  App.  435! 
O'Donncll  v.  Missouri  Pac.  R.  Co.,  7  Mo. 
App.  190.  Followed  in  Werner  v.  Citi- 
zens' R.  Co.,  81  Mo.  368.  Quoted  in  Sco- 
ville  V.  Hannibal  &  St.  J.  R.  Co.,  81  Mo.  434. 

A  railroad  engineer  must  exercise  ordi- 
nary diligence  and  care  to  avoid  injury  to  a 
trespasser  upon  the  track.  Remer  v.  Lot^ 
Island  R.  Co.,  i  A^.  Y.  Supp.  124,  48  Hun 
352,  15  A':  Y.  S.  R.  884;  affirmed  in  113 
N.  Y.  669,  23  N.  Y.  S.  R.  994.  niem.,  21 
N,  E.  Rep.  II 16,  mem. 

A  trespasser  is  not  prevented  from  re- 
covering for  an  injury  received  on  a  track,  if 
the  company  could  by  ordinary  care  have 
prevented  it.    Lay  v.  Richmond  6-  D.  R. 


w 


m 


a  :l } 


I  ■ 


mi 


f.     ] 

\ 

c  :■ 

I 

1 

\i 

1130 


TRESPASSERS,  INJURIES  TO,  29, 80. 


m 


Co.,  43  Am.  S*  Eng.  R.  Cat.  no,  io6  N. 
Car.  404,  It  S.  E.  Rtp.  412. 

A  person  using  a  track  as  a  footpath  for 
his  own  convenience  elsewhere  than  at  a 
lawful  crossing,  and  injured  by  a  train  while 
•o  doing,  cannot  recover  of  the  company, 
unless  it  be  guilty  of  wanton  or  gross  negli- 
gence.  Spicer  v,  Chtmpeakt  &•  O.  R.  Co., 
45  Am.  5-  Eng.  R.  Cas.  28,  34  IV.  Va.  514, 
12  S.  E.  Rep.  553.— Distinguishing  Nuzum 
V.  Pittsburgh,  C.  &  St.  L.  R.  Co.,  30  W.  Va. 
328;  Hawker  V.  Baltimore  &  O.  R.  Co.,  15 
W.  Va.  629.  —  Followed  in  Christy  v. 
Chesapeake  &  O.  R.  Co.,  35  W.  Va.  117. 
—Christy  v.  Chesapeake  &*  O.  R.  Co.,  35  W. 
Va.  117,  12  S.  E.  Rep.  1 11 1.  — FOLLOW- 
ING Spicer  v.  Chesapeake  &  O.  R.  Co.,  34 
W.  Va.  514. 

29.  Liability  for  iranton  or  wilftil 
niiscoiiduct. — Where  a  person  voluntarily 
walked  upon  a  railroad  track,  and  was  in- 
jured by  a  passing  train — held,  that  he  was 
not  entitled  to  recover  damages  for  the 
injury,  in  the  absence  of  wilful,  wanton,  or 
reckless  conduct  on  the  part  of  the  com- 
pany or  its  agents.  Little  Rock,  At.  R.  &* 
T.  R.  Co.  \:  Haynes,  28  Am.  &*  Eng.  R. 
Cas.  572,  47  Ark.  497,  i  S.  JV.  Rep.  774.— 
Followed  in  Sibley  v.  Ratlifle,  37  Am.  & 
Eng.  R.  Cas.  295,  50  Ark.  477. — Patterson 
V.  Philadelphia,  W.  6*  B.  R.  Co.,  4  Houst. 
{Del.)  103,  7  Am.  Ry.  Rep.  207.  Lake  Shore 
&*  M.  S.  R.  Co.  V.  Bodemer  54  Am.  &-  Eng. 
R.  Cas.  177,  139  ///.  596,  29  N.  E.  Rep. 
692 ;  affirming  33  ///.  App.  479.  EggmanH 
V.  St.  Louis,  A.  6-  T.  H.  R.  Co.,  47  ///.  App. 
yyj.  —  Following  Illinois  C.  R.  Co.  v. 
Hetherington,  83  111.  ^\o,—  Terre  Haute  &* 
I.  R.  Co.  V.  Graham,  12  Am.  4-  Eng.  R. 
Cas.  77,  95  Ind.  286,  48  Am.  Rep.  719. — 
Reviewing  Pennsylvania  Co.  v.  Sinclair, 
62  Ind.  301 ;  Indianapolis  &  V.  R.  Co. 
V.  McClaren,  62  Ind.  566.— Followed  in 
Palmer  w.  Chicago,  St.  L.  &  P.  R.  Co.,  31 
Am.  &  Eng.  R.  Cas.  364,  112  Ind.  250,  11 
West.  Rep.  676,  14  N.  E.  Rep.  70.— Chicago 
&>  E.  /.  R.  Co.  V.  Hedges,  25  im.  &■*  Eng. 
R.  Cas.  550,  105  Ind.  398,  j  ^j.  E.  Rep.  Roi. 
Gregory  v.  Cleveland,  C,  C.  &*  I.  R.  Co.,  31 
Am.  6*  Eng.  R.  Cas.  440,  11 3  Tnd.  38$,  14 
A';  E.  Rep.  228.  Palmer  v.  Chicago,  St.  L. 
&*  P.  R.  Co.,  31  Am.  &*  Eng.  R.  Cas.  364, 
112  Ind.  250,  II  West.  Rep.  676,  14  A^.  E. 
Rep,  70.— Following  Terre  Haute  &  I.  R. 
Co.  V.  Graham,  95  Ind.  286,  48  Am.  Rep. 
719.— Quoted  in  Toomey  v.  Southern  Pac. 
R.  Co.,  86  Cat.  374;  Chicago,  St.  L.  &  P. 


R.  Co.  V.  Nash,  1  Ind.  App.  2^.—KeHtutky 
C.  R.  Co.  V.  Gastineau,  83  Ky.  119.— Fol- 
lowed IN  Shelby  v.  Cincinnati,  N.  O.  &  T. 
P.  R.  Co.,  85  Ky.  224,  3  S.  W.  Rep.  157; 
Givens  v.  Kentucky  C.  R.  Co.,  89  Ky.  231. 
—Snyder  v.  Notches,  R.  R.  &*  T.  R.  Co.,  44 
Am.  &*  Eng.  R.  Cas.  278,  42  La.  Ann.  302, 
7  So.  Rep.  582.  Wright  v.  Boston  &*  A.  R. 
Co.,  28  Am.  &*  Eng.  R.  Cas.  652,  143  Mass. 
296,  7  A^.  E.  Rep.  866.— Followed  in  Dan- 
iels V.  New  York  &  N.  E.  R.  Co.,  154  Mass. 
3^g.— Dillon  v.  Connecticut  River  R.  Co., 
1 54  Mass.  478, 28  N.  E.  Rep.  899.  McCreary 
V.  Boston  6-  M.  R.  Co.,  156  Mass.  316,  31  A'. 
E.  Rep.  1 26.  Dooley  v.  Mobile  &*  O.  R.  Co. ,  69 
Miss.  648,  12  So.  Rep.  956.  Heiter  v.  East 
St.  Louis  Connecting  R.  Co.,  53  Mo.  App.  331. 
Houston  &*  T.  C.  R.  Co.  v.  Sympkins,  6  Am. 
&*  Eng.  R.  Cas.  11,  54  Tex.  615. 

A  reckless  disregard  of  consequences 
may  be  so  great  as  to  imply  a  willingness 
to  inflict  an  injury,  and  as  to  entitle  a  tres- 
passer to  recover,  although  there  is  no 
actual  intent  to  harm  him.  Palmer  v.  Chi- 
cago, St.  L.  &*  P.  R.  Co.,  31  Am.  6-  Eng. 
R.  Cas.  364, 112  Ind.  250,  11  West.  Rep.  676, 
14  A'^,  E.  Rep.  70.—  Quoting  Pennsylvania 
Co.  V.  Sinclair,  62  Ind.  301. 

Plaintiff  stopped  at  an  intermediate  sta- 
tion on  defendant's  road  to  meet  her  son, 
who  was  coming  in  on  another  road,  intend- 
ing to  resume  her  journey  on  the  same 
ticket  later  in  the  day.  She  went  to  a 
house  and  waited  until  near  train  time  on 
the  other  road.  She  undertook  to  make  a 
near  cut  across  defendant's  track,  when  she 
might  have  crossed  at  streets  provided  with 
gates,  but  was  struck  by  a  train  in  attempt- 
ing to  cross.  Held,  that  the  fact  that  she 
held  a  ticket  would  not  make  her  a  passen- 
ger at  the  time,  and  in  going  on  the  track 
for  the  purpose  that  she  had  she  assumed  all 
risks,  and  could  not  recover  for  the  injury, 
in  the  absence  of  evidence  that  it  was  wil- 
fully inflicted.  Johnson  v.  Boston  &*  M.  R. 
Co.,  125  Mass.  75.— Followed  in  Daniels 
V.  New  York  &  N.  E.  R.  Co.,  154  Mass.  349. 
Reviewed  in  Davis  v.  Chicago  &  N.  W.  R. 
Co.,  1$  Am.  &  Eng.  R.  Cas.  424,  58  Wis. 
646,  46  Am.  Rep.  667. 

30.  Liability  for  wrongful  or  tor- 
tii^uit  acts.  —  While  a  company  is  not 
bound  to  the  same  degree  of  care,  in  regard 
to  mere  strangers,  who  are  unlawfully 
upon  its  premises,  that  it  owes  to  passen- 
gers conveyed  by  it,  it  is  not  exempt  from 
responsibility  to  such  strangers  for  injuries 


1 

i 

. 

1 

1 

1 

i 
i 

.1 

!  ■ 

TRESPASSERS,  INJURIES   TO,  31-84. 


1131 


^,—KtHtucky 
119.— FOL- 
;i,  N.  O.  &  T. 
W.  Rep.  157; 
..  89  Ky.  231. 
T.  /?.  Co.,  44 
la.  Ann.  302, 
tston  &*  A.  H. 
52,  143  Mass. 
)WED  IN  Dan- 
'o.,  154  Mass. 
River  R.  Co., 
19.  McCreary 
ass.  316,  31  A'. 
&*  0.^.0..  69 
letter  v.  East 
Mo.  App.  331. 
mpkins,  6  Am, 

15- 
consequences 

a  willingness 

entitle  a  tres- 

there  is  no 

Palmer  v.  Chi- 

Am.^  Eng. 
Vest.  Rep.  676, 

Pennsylvania 

:ermediate  sta- 
meet  her  son, 
sr  road,  intend- 
'  on  the  same 
the  went  to  a 
r  train  time  on 
took  to  make  a 
rack,  when  she 
s  provided  with 
ain  in  attempt- 
e  fact  that  she 
e  her  a  passen- 
ig  on  the  track 
she  assumed  all 
•  for  the  injury, 
that  it  was  wtl- 
loston  6r*  M.  R. 
ATED  IN  Daniels 
,  154  Mass.  349- 
:ago  &  N.  W.  R. 
,s.  424.  58  Wis. 

ngftil  or  tor- 
am  pany  is  not 
f  care,  in  regard 
are  unlawfully 
awes  to  passen- 
Dt  exempt  from 
;ers  for  injuries 


arising  from  its  negligence  or  from  its  tor- 
tious acts.  Sioux  City  6*  P.  R.  Co.  v.  Stout, 
17  Wall.  (U.  S.)  657.  —  Disapproved  in 
Catlett  V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  54 
Am.  &  Eng.  R.  Cas.  113,  57  Ark.  461,  21  S. 
W.  Rep.  1062.  Distinguished  in  Ostertag 
V,  Pacific  R.  Co.,  64  Mo.  421.  Not  fol- 
lowed IN  Daniels  v.  New  York  &  N.  E. 
R.  Co.,  1 54  Mass.  349 ;  Frost  v.  Eastern  R. 
Co.,  64  N.  H.  220. 

Though  a  person  walking  upon  a  track 
be  technically  a  trespasser,  if  he  uses  due 
care  to  avoid  injury  from  the  wrongful  act 
of  the  company  he  may  recover  for  injuries 
thus  sustained.  Troy  v.  Cape  Fear  &>  Y. 
V.  R.  Co.,  34  Am.  &*  Eng.  R.  Cas.  13,  99  N. 
Car.  298,  6  S.  E.  Rep.  77,  6  Am.  St.  Rep, 
S2I.— Quoting  Vicksburg  &  M.  R.  Co.  v. 
McGowan,  62  Miss.  682. 

31.  Wliaf>  amounts  to  actionable 
negligence. — It  appeared  that  the  dece- 
dent  was  passing  along  a  double  track  in  a 
westerly  direction  within  the  limits  of  a  city, 
when  he  discovered  a  train  coming  toward 
him,  and  stepped  from  the  track  upon 
which  he  was  walking  to  the  one  imme- 
diately north.  Before  he  had  taken  more 
than  two  or  three  steps  he  was  struck 
and  killed  by  a  train  going  west.  The 
accident  did  not  occur  in  a  public  street, 
and  the  train  was  not  running  at  an  unusual 
rate  of  speed,  or  in  violation  of  any  ordi- 
nance of  the  city.  Held,  that  a  demurrer 
to  the  evidence  was  properly  sustained. 
Tennis  v.  Inter-State  Con.  R.  T.  R.  Co.,  45 
Kan,  S03,  25  Pac,  Rep.  876.  — QUOTING 
Mulherrin  v.  Delaware,  L.  &  W.  R.  Co.,  81 
Pa.  St.  366. 

To  turn  cars  loose  at  night,  to  move  by 
their  own  momentum,  without  an  engine 
attached,  and  without  a  light  in  front  to 
warn  persons  on  the  track  of  their  approach, 
is. negligence  even  as  to  a  trespasser  on  the 
track.  Conley  v.  Cincinnati,  N.  0.  &*  T. 
P,  R.  Co.,  41  Am.  &*  Eng.  R.  Cas.  537.  89 
Ky.  402,  12  5.  W.  Rep.  764.— Followed 
and  quoted  in  Louisville  &  N.  R.  Co.  v. 
Potts,  92  Ky.  30. 

Running  engine  and  tender  backward 
through  the  country,  w  here  people  are  not 
expected,  and  have  no  right,  to  be  on  the 
track,  cannot  be  regarded  of  itself  as  an  act 
of  negligence.  State  v.  Baltimore  5-  0.  R. 
Co.,  69  Md.  494,  16  Atl.  Rep.  210. 

The  fact  that  an  old  highway  had  existed 
a  number  ot  years  before  at  the  place  where 
a  person  was  injured  on  a  railroad  track 


will  not  entitle  him  to  recover  for  his 
injuries  on  the  ground  that  the  company 
had  failed  to  construct  a  suitable  crossing 
over  it,  especially  where  it  appears  that  the 
injured  person  was  not  crossing  but  wat 
walking  along  the  track.  Candelaria  v. 
Atchison,  T.  &*  S.  F.  R.  Co.,  (N.  Mex.)  48 
Am.  &*  Eng.  R.  Cas.  565,  27  Pac.  Rep.  497. 

32.  NecesHity  of  actually  striking 
Mritli  train. — A  child  was  walking  upon  a 
railroad  bridge,  and  fell  therefrom  as  a  train 
was  passing  and  was  killed.  Held,  that  it 
was  not  necessary  in  order  to  recover  for 
the  death  to  prove  that  the  child  was  struck 
by  the  train.  Tlie  company  was  liable  if 
the  fall  was  otxasioned  by  the  negligent 
acts  of  the  train  employes,  in  the  absence 
of  negligence  on  the  part  of  the  child. 
McMillan  v.  Burlington  &*  M.  R.  Co.,  46 
Iowa  231,  16  Am.  Ry.  Rep.  239. 

b.  Speed  ;  Signals ;  Flagmen.* 

33.  Bate  of  speed,  generally. —  As 

applicable  to  an  injury  to  a  trespasser,  the 
rate  of  speed  at  which  a  train  was  run  is  not 
material,  unless  there  be  something  making 
it  evidence  of  an  intentional  or  wilful  act. 
Palmer  v.  Chicago,  St.  L.  &*  P.  R.  Co.,  31 
Am,  &*  Eng.  R.  Cas.  364,  112  Ind.  250,  11 
West.  Rep.  676,  14  N.  E.  Rep.  70. 

34.  High  or  unusual  rate  of  speed. 
—  To  run  a  train  at  a  high  rate  of  speed 
where  it  is  known  that  persons  are  using 
the  track,  although  without  legal  right,  may 
be  wanton,  for  which  wantonness  resulting 
in  an  injury  there  may  be  a  recovery;  while 
if  run  at  the  same  rate  of  speed  without 
such  conditions  being  known,  there  can  be 
no  liability  for  such  accident.  Illinois  C.  R, 
Co.  v.  Beard,  49  ///.  App.  232. 

As  to  a  trespasser  on  the  track,  the  driv- 
ing of  a  train  at  night  outside  the  limits  of 
a  city  or  town  at  a  very  high  rate  of  speed 
cannot  be  deemed  wilful  negligence.  The 
engineer  has  a  right  to  presume  that  no  one 
will  be  on  the  track  at  such  time  and  place. 
Louisville  &>  N,  R,  Co,  v.  Howard,  19  Am, 
6-  Eng.  R.  Cas.  98,  82  Ajk.  212. 

The  unusual  speed  of  a  train  is  not 
neglect  as  to  one  who  voluntarily  places 
himself  upon  the  track  where  he  has  no 
right  to  be.  In  such  cases  the  company  is 
not  liable,  unless  those  in  charge  of  the 
train,  after  discovering  the  danger,  could, 

*  See  also  Crossings.  Injuries  to  Persons, 

ETC,  AT,  46-189« 


113S 


TRESPASSERS,  INJURIES  TO,  36-38. 


1 1' 


by  the  eiercise  of  proper  care,  have  avoided 
the  injury.  Shackltford  v.  Louisvillt  &*  N. 
J{.  Co.,  28  Am.  &*  Eng.  R.  Cas.  591,  84  A>. 
43,  4  Am.  S/.  Rtp.  189. 

35.  Rate  of  speed  prohibited  by 
ordinance.  —  The  fact  that  a  train  wan 
run  at  a  speed  in  excess  of  that  allowed  by 
ordinance  will  not  authorize  a  recovery  for 
injuries  received  by  one  who,  although 
aware  of  the  approach  of  the  train,  rode  up 
an  embankment  and  got  upon  the  track  im- 
mediately in  front  of  it  at  a  place  where  he 
had  no  right  to  be,  where  it  is  shown  that 
the  engineer  after  discovering  hiin  used 
every  means  in  his  power  to  avert  the  acci- 
dent. Prewitt  V.  Eddy,  $4  Am,  S-  Eng,  R, 
Cas,  138.  115  Mo.  283,21  S,  W.  Rep,  742.— 
Quoting  Harlan  v.  St.  Louis,  K.  C.  &  N. 
R.  Co.,  64  Mo.  480;  Guenther  v.  St.  Louis, 
I  M.  &  S.  R.  Co.,  34  Am.  &  Eng.  R.  Cas. 
47,  95  Mo.  289.  Reviewi  ig  Fiedler  v.  St. 
Louis,  I.  M.&  S.  R.  Co.,  107  Mo.  645;  Boyd 
V,  Wabash  Western  R.  Co.,  105  Mo.  371. 

In  an  action  for  the  death  of  plaintiff's 
daughter,  fifteen  years  old,  the  evidence 
tended  to  show  that,  although  the  deceased 
was  a  trespasser  on  defendant's  tracks,  yet 
many  people  habitually  walked  on  the 
tracks  along  the  place  of  the  accident,  and 
that  the  train  was  running  more  than  six 
miles  an  hour,  in  violation  of  the  city  ordi- 
nance. The  engineer  saw  the  girl  when 
about  600  feet  distant,  and  sounded  tlic 
alarm  whistle  when  within  about  35  feet 
of  her,  but  did  not  check  the  speed  of 
the  train,  although  the  deceased  gave  no 
indication  of  hearing  the  signal.  Held,  that 
a  verdict  for  plaintifl  would  not  be  dis- 
turbed. Fiedler  v.  St.  Louis,  I.  M,  &^  S.  R. 
Co,,  S4  Am.  &*  Eng.  R.  Cas.  162,  107  Mo, 
645,  18  S.  IV.  Rep,  847.  —  Reviewkd  in 
Prewitt  V,  Eddy,  54  Am.  &  Eng.  R.  Cas. 
138,  IIS  Mo.  283.  21  S.  W.  Rep.  742. 

36.  Duty  to  give  signals,  gener- 
oily.* — A  company  is  not  bound  to  furnish 
any  particular  kind  of  machinery  or  appli- 
ances for  the  benefit^ of  a  trespasser,  or 
(when   not  aware  of  his  presence)  to  give 

*See  also  Crossings,  Injuries  to  Persons. 

KTC.  AT,    91-08. 

FaMure  to  observe  statutory  precautions,  see 
note,  19  Am.  &  Eng.  R.  Cas.  41;  31  Id.  447. 

Rule  requiring  signals  not  intended  for  tres- 
passers, see  note,  19  Am.  &  Eng.  R.  Cas.  103. 

Trespasser  on  track  cannot  complain  of 
omission  of  precautions  required  at  crossings  or 
for  safety  of  passengers,  see  note,  45  Ah.  & 
Eng.  K.  Cas.  36. 


cautionary  signals  to  warn  him  of  the  ap« 
proach  of  its  trains,  and  its  omission  to  do 
■o  it  not  negligence.  Toome"  v.  Southern 
Pac.  R.  Co.,  86  Cal.  374,  24  Pac,  Rep,  1074. 
— Approving  Tonnenbrock  v.  South  Pac. 
Coast  R.  Co.,  S9  Cal.  269.  Explaining 
Needham  v.  San  Francisco  &  S.  J.  R.  Co., 
37  Cal.  410. 

A  company  is  not  liable  for  a  failure  to 
give  tlie  usual  signals  where  a  person  is  in- 
jured by  n  backing  train,  while  attempting 
to  cross  the  track  at  an  unfrequented  place, 
and  unseen  by  the  persons  in  charge  of  the 
train.  Woodyard  v.  Kentucky  C,  R.  Co., 
{Ky.)  155.  W.Rep.  178. 

In  signaling  the  movement  of  a  train  it 
is  not  necessary  to  ring  the  bell  of  the  loco- 
motive continuously.  If  the  ringing  of 
the  bell  upon  starting  is  sufRcient  "  under 
usual  existing  circumstances "  to  give  to 
passers  by  reasonable  warning  of  the  train's 
approach,  nothing  more  is  required,  ///i- 
nois  C.  R,  Co.  v.  I?icJi,  91  Ky,  434,  1$  S.  IV. 
Rep.  665. 

A  railroad  is  required  to  ring  the  bell  and 
sound  the  whistle  of  its  locomotive  only 
when  approaching  a  crossing.  Dahlstrom 
v.  St.  Louis,  I.  M.  &»  S.  R.  Co,,  35  Am.  6» 
Efig.  R.  Cas.  387,  96  Mo,  99,  15  IVest.  Rep. 
85,  8  S,  W,  Rep,  777. 

37.  Approaclilng  sharp  curves.  — 
A  person  walking  upon  a  track  at  night, 
at  a  place  where  there  was  a  high  embank- 
ment near  a  sharp  curve,  was  run  over  and 
killed  by  a  passing  engine  running  irregu- 
larly. In  an  action  to  recover  damages,  a 
rule  of  the  company  was  offered  in  evidence, 
requiring  the  whistle  to  be  sounded  before 
approaching  all  sharp  curves.  Held,  that 
the  rule  in  question  was  adopted  for  the 
safety  of  passengers  and  the  proper  run- 
ning of  trains,  and  to  notify  those  who  had 
a  right  to  use  the  road,  and  that  it  was  not 
intended  to  protect  persons  in  the  position 
of  plaintifl ;  therefore,  it  was  error  for  the 
court  to  charge  that  it  was  the  duty  of  the 
engineer  to  blow  the  whistle.  Louisville  &* 
N.  R.  Co.  V.  Howard,  19  Am.  &■*  Eng.  R.  Cas. 
98,  82  A>.  212. 

38.  Wlien  person  Is  seen  on  track. 
— Negligence  is  a  question  of  fact  for  the 
jury.  The  court  has  the  right  to  charge 
that  it  is  the  duty  of  those  operating  a  train 
to  ring  the  bell  or  blow  the  whistle  as  soon 
(S  they  see  a  man  on  the  track  ahead  ;  but 
it  is  error,  as  upon  the  weight  of  evidence, 
to  charge  that  a  failure  on  their  part  so  to 


TRESPASSERS,  INJURIES  TO,  39-43. 


1133 


of  tlie  ap* 
ssion  to  do 
V.  Southtrn 

Rep.  1074. 
South  Pac. 
XPLAININQ 

.  J.  R.  Co., 

a  failure  to 
erson  is  in- 
attempting 
ented  place, 
large  of  the 
C.  Ji.  Co., 

A  a  train  it 
of  the  loco- 
ringing  of 
lent  "under 
to  give  to 
)f  the  train's 
II  i  red.  Illi- 
14.  IS  5.  W. 

the  bell  and 

notive  only 

Dahhtrom 

35  Am.  &* 

West.  Hep. 

curves.  — 

cic  at  night, 
gh  embank- 
[in  over  and 
ning  irregu« 
damages,  a 
in  evidence, 
nded  before 
Held,  that 
)ted  for  the 
proper  run- 
Qse  who  had 
t  it  was  not 
the  position 
;rror  for  the 
duty  of  the 
Louisville  &* 
Eng.  R.  Cas. 

I  on  track. 

fact  for  the 
It  to  charge 
ating  a  train 
istle  as  soon 

ahead  ;  but 
of  evidence, 
r  part  so  to 


do  would  constitute  negligence,  Texas  &* 
P.  R.  Co.  V.  Roberts,  2  Tex.  Civ.  App.  ill, 
20  S.  IV.  Rep.  960. 

30. but  not  Ic  time  to  prevent 

accident.— It  is  not  negligence  for  those 
in  charge  of  a  train  to  fail  to  warn  one  who 
is  ircspussing  on  the  tracl{  at  a  point  whets 
persons  are  not  in  the  hubit  of  going,  where 
thr  trespasser  is  not  discovered  in  time  to 
iiavc  averted  an  accident.  Oatts  v.  Cincin- 
nati', N.  0.  6-  T.  P.  R.  Co.,  (Ky.)  22  S.  W. 

di*p.  330- 

40.  Statutory  signals.'*'— A  company 
is  not  required  to  give  the  statutory  signal 
warnings  to  one  walicing  on  the  track.  Egg- 
hiutn  V.  St.  Louis,  A.  &*  T.  H.  R,  Co.,  /^j 

III.  App.  507. 

Where  a  person  goes  upon  a  railroad 
track  between  stations,  at  a  place  where  he 
has  no  right  to  be,  without  looking  or 
listening  for  approaching  trains,  and  is 
injured,  he  cannot  recover  against  the  com- 
pany, in  the  absence  of  wilfulness,  notwith- 
standing a  failure  to  give  the  signals  required 
by  law.  Ivens  v.  Cincinnati,  W.  &•  At.  R. 
Co.,  23  Am.  &*  Eng.  R.  Cas.  258,  103  Ind.  27, 
2  A';  E.  Rep.  134. 

41. at  public  crossings.— A  stat- 
utory provision  requiring  the  bell  to  be 
rung  or  whistle  blown  on  approaching  a 
crossing  is  for  the  benefit  of  those  who  use 
the  crossing,  and  not  for  the  benefit  of  tres- 
passers  at  other  points,  and  such  trespassers 
cannot  complain  of  the  omission  to  comply 
with  the  statute,  even  though  had  the  sig- 
nals been  given  they  would  have  heard  and 
been  warned  thereby.  Toomey  v.  South' 
ern  Pac.  R.  Co.,  86  Cat.  374,  24  Pac.  Rep. 
1074.  Louisville  &*  N.  R.  Co.  v.  Howard,  19 
Am.  S"  En^.  R.  Cas.  98, 82  A>.  2 1 2.  Shackle- 
ford  V.  Louisville  6*  N.  R.  Co.,  28  Am.  &» 
Eng.  R.  Cas.  591,  84  Ry.  43,  4  Am.  St.  Rep. 
189.  Prendegast  v.  New  York  C.  6-  H.  R.  R. 
Co.,  58  A^.  Y.  652,  mem.  Spicer  v.  Chesapeake 
&*  O.  R.  Co.,  45  Afn.  &•  Eng.  R.  Cas.  28,  34 

IV.  Va.  514,  12  S.  E.  Rep.  553.  Christy  v. 
Chesapeake  &*  O.  R.  Co..  35  IV.  Va.  117.  12 
S.  E.  Rep.  1 1 1 1.  Casey  v.  Canadian  Pac.  R. 
Co.,  37  Am.  &*  Eng.  R.  Cas.  172, 15  Ont.  574. 

A  woman  living  at  a  section  house  belong- 
ing to  appellee,  as  a  servant  of  the  occupant, 
who  was  a  section  boss  of  the  company, 
was,  while  crossing  the  track  to  reach  the 
milk  yard  belonging  to  the  house,  struck  by 

*  See  also  Crossings,  Injuries  to  Persons, 
Vtc,  AT,  00-167. 


a  passing  train  and  killed.  The  train  was 
running  twenty-five  or  thirty  miles  per  hour. 
No  signal  was  given  of  its  approach  to  a 
public  crossing  a  mile  distant,  or  to  u  neigh« 
borhood  crossing  near  by,  or  to  the  section 
house.  Held,  that  the  woman  was  a  tres- 
passer and  that  there  was  no  negligence 
upon  the  part  of  the  company  as  to  her. 
ShackUford  v.  Louisville  &•  A'.  R.  Co.,  28 
Am.  i"^-  Eng.  R.  Cas.  591,  84  A>.  43,  4  Am. 
St.  Rtp   189. 

42.  Under  Tennessee  statute.i"— 
Tenn.  Code,  §  1 166,  requiring  the  enf^ineerto 

<  and  the  whistl*^  .uid  to  put  on  brakes  and 
use  evtry  efT'xi  to  stop  the  train  when  any 
person  .  spears  upon  the  track,  must  be 
obeed  i.i  its  severest  literal!  i.y,  whether  the 
precautions  seem  necessary  or  not,  and  the 
engineer  cannot  suppose  that  a  person  upon 
the  track  will  get  off  on  the  near  approach 
of  the  engine.  Hill  v,  Louisiiille  &*  N.  R. 
Co.,  9  Heisk.  (Tenn.)  823,  19  Am.  Ky.  Rep. 
400.— Approved  in  Chesapeake,  O.  &  S.  W. 
R.Co.  V.  Foster,  88  Tenn.  671,  13  S.  W.  Rep. 
694,  14  S.  W.  Rep.  428.  Quoted  in  Clii- 
cago,  St.  L.  &  1'.  R.  Co.  v.  Fenn.  3  Ind. 
App.  250. 

But  if,  after  a  person  could  have  been  seen 
on  the  track  by  tlie  lookout  on  the  engine,  it 
was  impossible  to  sound  the  whistle  or  put 
down  the  brakes,  the  company  is  not  liable 
for  the  failure  to  do  so.  East  Tenn.  &•  V. 
R.  Co.  V.  Swaney,  5  Lea  (Tenn.)  119. — Ap- 
proving East  Tenn.,  V.  &  G.  R.  Co.  v. 
Scales,  2  Lea  688.  —  Distinguished  in 
Chesapeake,  O.  &  S.  W.  R.  Co.  v.  Foster, 
88  Tenn.  671,  13  S.  W.  Rep.  694,  14  S.  W. 
Rep.  428. 

43.  Duty  to  station  flagmen  at 
crossings.— A  requirement  of  a  company 
to  keep  a  flagman  at  a  public  street  crossing 
in  a  large  city,  to  give  warning  of  the  ap- 
proach of  trains,  is  intended  for  the  protec- 
tion of  persons  crossing  the  tracks  at  such 
crossing,  and  not  for  the  benefit  of  persons 
walking  along  the  track,  employing  it  as  a 
footpath.  To  the  latter  the  company  does 
not  owe  the  duty  in  respect  to  a  flagman. 
Ch'cago,  R.  L  6-  P.  R.  Co.  v.  Einin^er,  114 
///.  79.  29  A^.  E.  Rep.  196. 

A  company  is  not  bound  to  furnish  a  flag- 
man, or  t;:ve  other  signals,  for  the  benefit  of 
trespassers  on  the  track,  but  only  for  those 
about  to  cross  a  track.  The  liability  to  tres- 
passers is  only  for  wilful  or  wanton  injuries, 

*  See  also  post,  40« 


1184 


TRESPASSERS,  INJURIES  TO,  44, 40. 


or  for  such  as  result  from  an  extreme  degree 
of  neglij^ence.  Rodtn  v.  Chicago  &*  G.  T. 
R.  Co.,  Ill  III.  72.  24  N.  E.  R*p.  435 ;  affirm- 
ing 30  ///.  App.  354. 

e.  Lookout.* 

44.  Ordinarily  no  duty  to  keep 
lookout.— A  company  is  under  no  obliga- 
tion to  keep  a  special  lookout  for  intruders 
or  trespassers  on  its  track,  except  at  public 
crossings  and  within  the  limits  of  towns  or 
cities,  and  is  only  bound  to  reasonable  dili- 
gence after  they  are,  or  ought  to  be,  discov- 
ered. Columbus  &»  W.  R.  Co.  v.  Wood,  86 
Ala.  164,  5  So.  Rep.  463.  Bentlty  v.  Georgia 
Pac.  R.  Co.,  86  Ala.  484,  6  So.  Rep.  37.  Car- 
rington  v.  Louisville  &*  N.  R.  Co.,  41  Am,  &* 
Etig.  R.  Cas.  543.  88  Ala.  472,  6  So.  Rep.  910. 
Louisville  &*  N.  R.  Co  v.  Black,  45  Am.  &* 
Eng.  R.  Cas.  38,  89  Ala.  313,  8  So.  Rep.  246. 
Glass  V.  Memphis  &*  C.  R.  Co.,  94  Ala.  581, 
10  So.  Rep.  215.— Following  Memphis  & 
C.  R.  Co.  V.  Womack.  84  Ala.  149 ;  Ensley 
R.  Co.  V.  Chewning,  93  Ala.  24.  Over- 
ruling South  &  N.  Ala.  R.  Co.  v.  Dono- 
van, 84  Ala.  141. 

A  railroad  company  has  a  right  to  the  use 
of  its  track,  and  may  ordinarily  presume 
that  no  one  is  upon  it  to  be  injured.  It 
owes  to  persons  wrongfully  there  no  duty  to 
look  out  for  them  that  they  may  nc>.  be 
injured.  Whatever  duty  it  owes  to  such  per- 
sons arises  after,  and  because,  they  have 
been  discovered  there  by  its  servants.  Ben- 
son V.  Central  Pac.  R.  Co,,  54  Am.  &»  Eng. 
R.  Cas.  126,  98  Cat.  45,  32  Pac.  Rep.  809,  33 
Pac.  Rep.  206. 

Where  a  track  passes  over  ground  not 
used  by  any  person  save  employes  of  the 
company,  such  as  ground  used  for  yard 
tracks,  some  distance  from  a  b.ation,  and 
where  no  streets  intersect,  and  an  engineer 
has  no  reason  to  apprehend  the  presence  of 
plaintiff  or  any  other  person  upon  such 
track,  a  failure  on  his  part  to  take  precau- 
tions to  discover  such  presence  is  not  negli- 
gence. Illinois  C.  R.  Co.  v.  Frelka,  9  ///. 
App.  605. 

Persons  in  charge  of  a  train  are  not 
bound  to  keep  a  lookout  for  trespassers  on 
the  track.  They  are  not  bound  to  antici- 
pate such  intrusion,  and  are  not  liable  for 
an  injury  occurring  in  consequence  thereof 
without  their  knowledge.     The  liability  of 

*  See  also  Crossings,  Injurus  to  Persons, 
BTC,  AT,  164-167* 


the  company  in  such  case  is  only  measured 
by  the  conduct  of  its  employes  after  they 
become  aware  of  the  trespasser.  Terre 
Haute  &•  I.  R.  Co.  v.  Graham,  12  Am.  &* 
Eng.  R.  Cas.  77,  95  Ind.  286,  48  Am.  Rep, 
719.  Masserv.  Chicago,  R.  I.  &*  P.  R.  Co.,  68 
Iowa  602,  27  N.  W.  Rep.  776.— Following 
Gay  nor  v.  Old  Colony  &  N.  R.  Co.,  100  Mass. 
214;  Illinois  C.  R.  Co.  v.  Godfrey,  71  III. 
500;  McClaren  v.  Indianapolis  &  V.  R.  Co., 
8  Am.  &  Eng.  R.  Cas.  217,  83  Ind.  319; 
Baltimore  &  O.  R.  Co.  v.  State,  19  Am.  & 
Eng.  R.  Cas.  83,  62  Md.  479 ;  Chicago,  R.  I. 
&  P.  R.  Co.  V.  Houston,  95  U.  S.  702.— 
State  v.  Baltimore  &*  0.  R.  Co.,  69  Md.  494, 
16  Afl.  Rep.  210.  Scheffler  v.  Minneapolis 
&*  St.  L.  R.  Co.,  19  Am.  &•  Eng.  R.  Cas. 
173.  32  Minn.  518,  21  N.  W.  Rep.  711.— 
Distinguished  in  Indianapolis,  P.  &  C.  R. 
Co.  V.  Pitzer,  25  Am.  &  Eng.  R.  Cas.  313, 
109  Ind.  179,  58  Am.  Rep.  lij.— Williams 
V.  Kansas  City,  S.  &*  M.  R.  Co.,  37  Am.  &* 
Eng.  R.  Cas.  329,  96  Mo.  rji,  9  S.  W. 
Rep.  573. 

But  having  notice  of  the  presence  of  tres- 
passers, and  that  they  are  in  danger,  the 
company's  servants  are  bound  to  use  reason- 
able care  to  avert  injury.  Hep/el  v.  St.  Paul, 
M.  &*  M.  R.  Co.,  49  Minn.  263,  51  A^.  W. 
Rep.  1049. 

And  a  company  will  be  liable  if  it  dis- 
covered the  trespasser  on  the  track,  and 
failed  to  use  reasonable  diligence  to  prevent 
the  train  from  running  over  him.  Galveston, 
H.  6*  S.  A.  R.  Co.  V.  Ryon,  34  Am.  5-  Eng. 
R.  Ca$.  30,  70  Tex.  56,  7  S.  W.  Rep.  687.— 
Reviewing  Texas  &  P.  R.Co.v.  O'Donnell. 
$8  Tex.  42.— Applied  in  Artusy  V.Mis- 
souri Pac.  R.  Co.,  37  Am.  &  Eng.  R.  Cas. 
288,  73  Tex.  191,  II  S.  W.  Rep.  177. 

45.  Rule  requiring  a  reasonable 
lookout  to  be  kept.  —  Railways  are 
bound  to  use  ordinary  prudence,  foresight, 
and  caution  to  avoid  injur)-  to  persons  or 
property  on  or  near  their  tracks;  and  or- 
dinary  care  varies  with  the  circumstances 
and  the  subject-matter  endangered,  and  it 
such  care  as  persons  of  ordinary  prudence 
would  use  in  similar  circumstances.  5/. 
Louis,  I.  M.  6*  S.  R.  Co.  r.  Freeman,  4 
Am.  &*  Eng.  R.  Cas.  608,  36  Ark.  41.— Fol- 
lowed IN  Sibley  v.  Ratliffe,  37  Am.  &  Enf . 
R.  Cas.  395,  so  Ark.  477. 

The  duty  of  keeping  a  reasonable  lookout 
is  imposed  upon  those  who  have  charge  of 
trains ;  and  a  failure  to  do  so  will  render 
the  company  liable,  though  the  person  in- 


il7  measured 
Ss  after  they 
sser.  T*rrt 
1,  12  Am,  &* 
48  Am.  Rep, 

•  P.  R.  Co.,  68 
-Following 
3o.,  100  Mass. 
(dfrey,  7»  !'•• 
I  &  V.  R.  Co.. 
83  Ind.  319; 
te,  19  Am.  & 
Chicago,  R.  I. 

U.  S.  702.— 
\,  69  Md.  494, 
.  Minneapolis 

Eng.  R.  Cas. 
'.  Rep.  7".— 
lis,  P.  &  C.  R. 
.  R.  Cas.  313, 
I7.—  Williams 
0.,  37  -4w.  4* 
275,  9  5.  W. 

esence  of  tres- 
n  danger,  the 
to  use  reason* 
fel  V.St.  Paul, 
163,  51  N.  W. 

able  if  it  dis> 
[le  track,  and 
nee  to  prevent 
im.  Galveston, 
\  Am.  &*  Eng. 
V.  Rep.  (At.— 
.w.  O'Donnell, 
\rtusy  V.  Mis- 
[  Eng.  R.  Cas. 

p.  177- 

I  reasonable 
Railways  are 
;nce,  foresight. 

•  to  persons  or 
racks;  and  or- 

circumstances 
ingered,  and  it 
inary  prudence 
nstances.  St, 
V.  Freeman,  4 
Ark.  41.— Foi.- 
37  Am.  &  Eng. 

lonable  lookout 
have  charge  of 
so  win  render 
the  person  in- 


TRESPASSERS,  INJURIES  TO,  46,47. 


U85 


jured  was  a  trespasser,  if  he  did  nothing 
else  to  contribute  to  the  injury.  Troy  v. 
Cap*  Fear  &-  Y.  V.  R.  Co.,  34  Am.  &*  Eng. 
R.  Cas.  13,  99  iV.  Car.  298.  6  S.  E.  Rep.  77, 
6  Am.  St.  Rep.  521.  —  DISTINGUISHING 
Parker  v.  Wilmington  &  W.  R.  Co.,  86 
N.  Car.  221.  Quoting  Houston  &  T.  C.  R. 
Co.  V.  Sympkins,  54  Tex.  615. 

A  reasonable  lookout,  varying  according 
to  the  danger  and  all  the  surrounding  cir- 
cumstances, is  a  duty  always  devolving  on 
those  in  charge  of  a  train  in  motion. 
Houston  &»  T.  C.  R.  Co.  v.  Sympkins,  6 
Am.  6-  Eng.  R.  Cas.  11,  54  Tex.  615.— 
Quoted  in  Troy  v.  Cape  Fear  &  Y.  V.  R. 
Co.,  34  Am.  &  Eng.  R.  Cas.  13,  99  N.  Car. 
298,  6  S.  E.  Rep.  77.  6  Am.  St.  Rep.  521. 

A  company  is  bound  to  keep  a  leasonable 
lookout  for  trespassers  on  its  track,  and  to 
exercise  such  care  as  the  circumstances  re- 
quire, to  prevent  injury  to  them.  If  a  tres- 
passer is  an  adult,  and  apparently  possesses 
his  faculties,  the  company  has  a  right  to 
presume  that  he  will  exercise  his  senses  and 
remove  himself  from  the  track;  and  if  he 
fails  to  do  so,  and  is  injured,  the  fault  is  his 
own,  and  there  is,  in  the  absence  of  wilful 
negligence  on  its  part,  no  remedy  against  it 
for  the  injury.  Norfolk  &*  W.  R.  Co.  v. 
Harman,  83  Va.  553,  8  S.  E.  Rep.  251. 
Tyler  v.  Sites,  88  Va.  470,  i^  S.  E.  Rep.  978. 
—Quoting  Norfolk  &  W.  R.  Co.  v.  Har- 
man, 83  Va.  553. 

4G.  Uuder  requirements  of  Ten- 
nessee statute.'*— Tenn.  St.  §§  1166-68 
evidently  mean  that  some  person  shall  be  so 
situated  on  the  lookout  that  he  can  see 
ahead.  If  the  engineer  cannot  see,  the 
fireman  must;  if  the  fireman  cannot,  the 
engineer  must.  Nashville  &•  C.  R.  Co.  v. 
Nowlin,  I  Lea  (Tenn.)  523. 

Tenn.  Code,  §  1 166,  provides  that  "  every 
railroad  company  shall  keep  the  engineer, 
fireman,  or  some  other  person  on  the  loco- 
motive always  on  the  lookout  ahead,  and 
when  any  person,  animal,  or  other  obstruc- 
tion appears  on  the  road  the  alarm  whistle 
shall  be  sounded  and  the  brakes  put  down." 
Held,  that  the  obstruction  '>ught  to  appear 
to  th>;  person  on  the  lookout,,  as  an  obstruc- 
tion not  appearing  o:  visible  to  him  would 
not  come  under  the  statute,  provided  he 
was  properly  on  the  lookout.  East  Tenn., 
V.  &*  G.  R.  Co.  V.  White,  8  Am.  &*  Eng.  R. 
Cas.  65,  5  Lea  {Tenn)  540. 

*See  aXsoante,  42. 


In  such  case  the  lookout  ought  to  be  in 
such  position  on  the  locomotive  as  to  enable 
him  to  see  ahead,  and  he  ought  to  be  vigi- 
lant and  watchful.  If  not  in  such  position, 
the  statute  will  not  be  complied  with ;  but 
if  in  proper  position,  and  from  that  position 
the  object  is  visible,  and  yet  not  seen,  the 
jury  will  be  warranted  in  finding  that  the 
person  was  not  on  the  lookout,  that  is,  that 
he  was  not  vigilant,  otherwise  the  object 
would  have  been  seen.  East  Tenn.,  V.  &*  G. 
R.  Co.  V.  White,  8  Am.  6-  Eng.  R.  Cas.  65, 
5  Lea  {Tenn.)  540. 

A  lookout  who  does  not  see  what,  with 
due  care  and  vigilance,  should  have  been 
seen,  is  not  in  the  discharge  of  his  duty.  So 
it  is  competent  to  ask  an  engineer  whether, 
from  his  position  on  the  engine  as  the  train 
was  approaching,  plaintiff  could  have  been 
seen  where  he  was  lying  on  the  track.  East 
Tenn.,  V.  6-  G.  R.  Co.  v.  White,  8  Am.  6- 
Eng.  R.  Cas.  65,  5  Lea  {Tenn.)  540. 

The  above  statute  does  not  require  more 
of  railroad  companies  than  is  required  by 
the  common  law,  except  that  it  shifts  the 
burden  of  proof.  It  never  was  the  law  that 
a  company  would  not  be  responsible  if  it 
saw  a  person  on  its  track,  even  a  trespasser, 
and  rode  over  him  when  it  might  have 
avoided  doing  so.  It  never  was  the  legal 
right  of  a  company  to  refuse  all  possible 
means  to  stop  its  train  and  avoid  an  acci- 
dent when  any  person,  animal,  or  other 
obstruction  appeared  on  the  track.  East 
Tenn.,  V.  &•  G.  R.  Co.  v.  Humphreys,  15 
Am.  &•  Eng.  R.  Cas.  472, 12  Lea  (Tenn.)  200. 
East  Tenn.,  V.  <S-  G.  R.  Co.  v.  Pratt.  8$ 
Tenn.  9,  1  5.  W.  Rep.  618. 

Under  the  statute,  a  judgment  against  a 
company  for  running  over  a  person  on  the 
track  is  properly  rendered  where  it  appears 
that  the  engineer  should  liave  seen  the  per- 
son in  time  to  avoid  the  injury.  East 
Tenn.,  V.  &>  G.  R.  Co.  v.  Humphreys,  15 
Am.  &*Eng.  R.  Cas.  472,  12  Lea  {Tenn.)  200. 

47.  For  trespassers  In  yards. —  A 
company  is  not  bound  to  look  and  watch  for 
a  person  trespassing  in  its  yard  where  there 
are  many  tracks  a»  it  is  for  one  of  its  own 
employes,  and  as  it  is  for  a  person  on  its 
main  line.  Rome- R.  Co.  v.  Tolbert,  85  Ga. 
447.  II  S.  E.Rep.  849. 

The  place  where  the  accident  happened 
was  not  at  a  street,  or  highway,  or  crossing 
place.  Defendant  was  entitled  to  a  clear, 
unobstructed  track,  and  could  not  presume 
that  any  one  would  intrude  thereon.    There 


M 


1136 


TRESPASSERS.  INJURIES  TO,  48,  40. 


was  no  evidence  that  the  deceased  had  any 
right  to  go  upon  the  track,  fftid,  that  even 
assuming  that  there  was  some  evidence  that 
the  cars  had  no  brakeman  on  them  while 
being  run  upon  the  siding,  that  fact  would 
be  no  ground  for  charging  the  defendant 
with  culpable  negligence.  State  v.  Bal/t- 
mort  &»  O.  R.  Co.,  lo  Am.  6-  Eng.  R.  Cas. 
723,  58  Afd.  221. 

The  only  duty  incumbent  on  a  company 
in  case  of  a  trespasser  is  not  to  injure 
wantonly  or  with  reckless  carelessness ;  this, 
however,  does  not  require  it  to  be  on  the 
lookout  for  trespassers  in  switch  yards. 
Williams  v.  Kansas  City,  S.  6-  M.  R.  Co., 
37  Am.  &•  Eng.  R.  Cas.  329,  96  Mo.  275,  9  S. 
W.  Rep.  573.— Quoting  Morissey  v.  East- 
ern R.  Co.,  1 26  Mass.  377.  Reviewing  Frick 
V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  75  Mo.  595 ; 
Kelley  V.  Hannibal  &  St.  J.  R.Co.,75  Mo.  138. 

48.  Lookout  on  trains  moving 
backward.  —  Defendant  company  was 
backing  its  train  in  a  city,  pushing  passen- 
ger and  box  cars  ahead  of  the  engine,  so 
that  no  person  on  the  engine  could  see 
ahead  of  the  train.  There  was  no  brake- 
man  or  other  person  on  the  box  cars,  or 
stationed  elsewhere  to  keep  a  lookout  ahead. 
Plaintiff's  intestate,  walking  on  the  track  in 
the  directiori  the  train  was  moving,  was 
overtaken  by  the  train,  run  over,  and  killed. 
Held,  that  this  fixed  the  charge  of  negli- 
gence on  the  company.  Savannah  &*  M. 
R.  Co.  v.  Shear. r,  58  Ala.  672.  South  &*  N. 
Ala.  R.  Co.  V.  Sullivan,  59  Ala.  272. 

But  the  above  rule  of  liability  does  not 
apply  to  a  section  of  cars  which,  being  on  a 
down  grade  on  a  side  track,  is  set  in  motion 
by  another  section  with  which  the  engineer 
is  attempting  to  make  a  connection,  and  if 
the  rule  were  applicable,  the  duty  would  be 
performed  by  having  a  watchman,  as  in  this 
case,  standing  by  the  cars  with  which  he 
was  attempting  to  couple  his  own.  East 
Tenn.,  V.  &*  G.  R.  Co.  v.  King,  31  Am. 
&•  Eng.  R.  Cas.  385,  81  Ala.  177,  2  So. 
Rep.  1 52. 

As  to  the  care  which  railroad  companies 
should  observe  generally  in  moving  trains, 
and  in  giving  signals,  and  in  keeping  a 
lookout  to  avoid  injuries  to  persons  cross- 
ing the  track,  see  Chicago,  B.  &*  Q.  R.  Co. 
v.  Tripiett,  38  ///.  483.  Baltimore  &-  0.  R. 
Co.  V.  State,  36  Afd.  366.  Brown  v.  Hanni- 
bal &*  St.  J,  R.  Co.,  50  Mo.  461.  Beisiegel 
V.  Ntw  York  C.  R.  Co.,  34  N.  Y.  622;  rf 
versing  33  Barb,  429. 


40.  While  running  through  cltieB, 
villages,  etc.— It  is  the  duty  of  railroad 
employes  running  a  train  within  the  corpo- 
rate limits  of  a  city  or  town,  where  neces- 
sity may  compel  or  usage  sanction  walking 
upon  the  track  at  places  other  than  at  pub- 
lic crossings,  to  keep  a  vigilant  outlook, 
even  for  trespassers.  South  &•  N.  Ala.  R. 
Co.  V.  Donovan,  36  Am.A*  Eng.  R.  Cas.  151, 
84  Ala.  141, 4  So.  Rep.  142.— DISTINGUISHED 
IN  Memphis  &  C.  R.  Co.  v.  Womack,  37 
Am.  &  Eng.  R.  Cas.  308,  84  Ala.  149,  4  So. 
Rep.  618.  Overruled  in  Glass  v.  Mem- 
phis &C.  R.  Co., 94  Ala.  581.  Reaffirmed 
IN  Savannah  &  W.  R.  Co.  v.  Meadors,  95 
Ala.  137. 

But  a  railroad  track  cannot  be  converted 
into  a  road  for  ordinary  travel,  and  one 
who  undertakes  to  make  such  use  of  it  is  a 
trespasser.  Savannah  &*  IV.  R.  Co.  v. 
Meadors,  95  Ala.  137,  10  So.  Rep.  141. — 
Quoting  Ensley  R.  Co.  v.  Cuewning,  93 
Ala.  24.  Reaffirming  South  &  N.  Ala. 
R.  Co.  V.  Donovan,  84  Ala.  146.  Review- 
ing Memphis  &  C.  R.  Co.  v.  Womack,  84 
Ala.  150. 

Although  ordinarily  train  hands  are  not 
bound  to  look  out  for  trespassers,  yet,  where 
a  train  is  running  through  a  city  or  town, 
and  the  people  thereof  habitually  cross  the 
track  at  any  and  all  hours  at  such  points  as 
may  be  convenient,  and  the  train  hands 
have  reason  to  know  that  such  is  the  habit, 
it  is  their  duty  to  look  out  for  such  persons 
and  to  take  reasonable  precaution,  by  ring- 
ing the  bell,  etc.,  not  to  run  over  them. 
Conley  v.  Cincinnati,  N.  O.  &*  T.  P.  R.  Co., 
41  Am.  6f  Eng.  R.  Cas.  537,  89  Ky.  402,  12 
S.  IV.  Rep.  764. 

In  an  action  against  a  railroad  for  causing 
the  death  of  a  person  walking  on  its  track 
in  a  city  at  a  place  where  people  habitually 
walked,  it  is  proper  to  instruct  the  jury  that 
they  may  find  for  plaintiff  not  only  if  de- 
fendant's servants  saw  the  deceased  in  time 
to  avoid  the  injury  by  the  exercise  of  ordi- 
nary care,  but  also  if  they,  by  the  exercise 
of  ordinary  care,  might  have  seen  him  in 
time  to  avoid  the  injury,  and  failed  to  exer- 
cise such  care.  Lynch  v.  St.  Joseph  &*  I.  R. 
Co.,  lit  Mo.  601,  19  S.  W.  Rep.  1114.— 
Following  Guenther  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  108  Mo.  18 ;  Fiedler  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  107  Mo.  645. 

A  company  is  bound  to  provide  for  a 
careful  lookout  in  the  direction  in  which 
a  train  is  moving,  in  places  where  people, 


'H 


TRESPASSERS,  INJURIES   TO,  60-52. 


1137 


hrough  cities, 

duty  of  railroad 
ithin  the  corpo- 
rn,  where  neces- 
sanctton  walking 
her  than  at  pub- 
vigilant  outlook, 
th  &*  N.  Ala.  R. 
Etig.R.  C<M.  151. 
■Distinguished 
V.  Womack,  37 
I4  Ala.  149,  4  So. 
Glass  V.  Mem- 
Reaffirmed 
V.  Meadora,  95 

ot  be  converted 

travel,  and  one 

ich  use  of  it  is  a 

W.   R.  Co.   V. 

So.  Rep,   141.— 

'.  Cnewning,  93 

outh  &  N.  Ala. 

146.    Review- 

V.  Womack,  84 

1  hands  are  not 
issers,  yet,  where 
I  a  city  or  town, 
itually  cross  the 
kt  such  points  aa 
the  train  hands 
jch  is  the  habit, 
for  such  persons 
:aution,  by  ring- 
run  over  them. 
&*  T.  P.  R.  Co., 
,  89  Ky.  402,  12 

road  for  causing 
ng  on  its  track 
iople  habitually 
ict  the  jury  that 
not  only  if  de« 
eceased  in  time 
(ercise  of  ordi« 
3y  the  exercise 
'e  seen  him  in 
1  failed  to  exer- 
Joseph  6-  /,  R. 
'.  Rtp.  1114.— 
.  Louis,  I.  M. 

Fiedler  v.  St. 
Mo.  645. 

provide  for  a 
tion  in  which 

where  people, 


and  especially  where  children,  are  likely  to 
be  upon  the  track.  Townleyv.  Chicago,  M, 
6-  St.  P.  R.  Co.,  4  Am.  &•  Eng.  R.  Cas.  562. 
53  Wis,  626,  II  N.  W.  Rep.  55.— Quoted 
IN  Whalen  v.  Chicago  &  N.  W.  R.  Co.,  41 
Am.  &  Eng.  R.  Cas.  558,  75  Wis.  654,  44  N. 
W.  Rep.  849. 

60.  Suspicion  or  notice  that  track 
is  not  clear. — The  general  doctrine  is  that 
a  company  is  entitled  to  a  clear  track ;  but 
if  there  is  reason  to  apprehend  that  the 
track  may  not  be  clear,  those  operating  a 
train  must  not  act  upon  the  assumption  that 
it  is  clear.  If  they  do,  the  company  will  be 
responsible  for  the  consequences.  Frick  v. 
St.  Louis,  K.  C.  &-  N.  R.  Co,,  8  Am.  6-  Eng. 
R.  Cas.  280,  75  Mo.  595 

An  engineer  is  not  bound,  as  a  rule,  to 
foresee  the  wrongful  presence  of  persons  on 
the  track  or  cars,  but  cases  may  arise  where, 
though  the  company  is  entitled  to  a  clear 
track,  it  cannot  fairly  presume  that  it  is 
clear.  It  then  becomes  its  duty  to  look  out 
for  persons  on  the  track,  and  its  liability  in 
Guch  case  is  not  limited  to  want  of  care  after 
discovery  of  the  danger  of  the  person  injured. 
Williams  v.  Kansas  City,  S,  &•  M.  li.  Co., 
37  Am.  6-  Eng.  R.  Cas.  329,  96  Mo.  275, 
9  S.  W.  Rep.  573.— Followed  in  LeMay 
V.  Missouri  Pac.  R.  Co.,  105  Mo.  361 ; 
Fiedler  v.  St.  Louis.  I.  M.  &  S.  R.  Co.,  107 
Mo.  645. 

The  fact  that  persons  are  liable  to  be 
upon  a  track  at  a  particular  locality  where 
a  train  is  to  pass,  if  known  to  the  managers 
of  the  train,  or  if  they  have  reasonable 
grounds  to  expect  it,  whether  such  persons 
are  there  rightfully  or  wrongfully,  would  im- 
pose a  duty  of  watchfulness  upon  them  that 
they  would  not  ordinarily  be  under.  Cas- 
sida  V.  Oregon  R.  &*  N.  Co.,  14  Or  eg,  551, 
\lPac.  Rep.  438. 

61.  Sufficiency  of  performance  of 
the  duty.  —  The  engineer  of  a  moving 
train,  approaching  a  trestle  on  a  curve  in  a 
cut  four  or  five  feet  deep,  is  under  no  duty 
to  withdraw  his  attention  from  the  track  in 
front  of  him,  and  look  across  the  country 
to  see  whether  any  one  is  on  the  trestle ; 
and  the  fact  that  he  might  have  seen  a  per- 
son on  the  trestle  by  looking  across  the  in- 
tervening land  before  entering  the  curve,  at 
a  distance  of  400  yards,  is  not  relevant  or 
admissible  as  evidence  on  the  question  of 
negligence  in  failing  to  keep  a  proper  look- 
out. Central  P.  <S-  B.  Co.  v.  Vaughan,  93 
Ala.  209,  9  So.  hep,  468. 
7  D.  R.  D.— 7a 


A  failure  to  comply  with  III.  Rev.  St.  ch. 
114,  §  90,  requiring  the  rear  brakeman  of  a 
train  to  remain  in  his  place,  is  not  such  neg- 
ligence as  to  render  the  company  liable  to  a 
trespasser  on  the  track.  It  does  not  amount 
to  recklessness  or  wantonness.  Eggmann  v. 
St. Louis,  A.  6-  T.  H.  V.  G».,47  ///.  App.  507. 

It  is  not  negligence  for  train  employes 
not  to  look  constantly  in  front  of  the  en- 
gine at  a  place  where  there  is  no  crossing, 
and  where  they  have  no  reason  to  expect 
that  persons  will  be  on  or  along  the  track. 
Houston  &•  T.  C.  R.  Co.  v.  Smit/t,  77  Tex. 
179,  13  S.  W.  Rep.  972. 

d.  Duty  after  Discovery  of  Trespasser. 

52.  Liability  limited  to  negligence 
after  discovery.*— The  liability  of  a  com- 
pany to  a  trespasser  on  its  track  must  be 
measured  by  the  conduct  of  its  employes 
after  they  become  aware  of  his  presence 
there,  and  not  by  their  negligence  in  failing 
to  discover  him  ;  for  as  to  such  negligence 
the  contributory  negligence  of  the  tres- 
passer will  defeat  a  recovery.  St.  Louis,  I, 
M.  <&-  5.  R.  Co.  V.  Monday,  31  Am.  &*  Eng. 
R.  Cas.  424,  49  ArJi,  257,  4  S.  W.  Rep.  782. 
Brown  v.  St.  Louis,  /.  M.  &^  S.  "  Co.,  $2 
Ark.  120,  12  S.  W.  Rep.  203. 

A  company  should  always  be  vigilant  to 
prevent  accidents,  but  it  owes  no  duty  to 
run  trains  so  as  Id  prevent  accidents  to  per- 
sons unnecessarily  and  unlawfully  on  its 
tracks.  But  the  law  requires  that  engineers 
shall,  after  the  danger  of  an  accident  is  dis- 
covered, do  all  they  can  to  prevent  it. 
Nolan  V.  New  York,  N.  H.  (S-  H.  R.  Co.,  25 
Am,  &*  Eng.  R.  Cas.  342.  53  Conn.  461,  4 
Atl.  Re*>,  106.— Applied  in  Fritts  v.  New 
York  &  N.  E.  R.  Co.,  62  Conn.  503. 

Persons  in  control  of  trains  have  a  right 
to  presume  that  men  of  experience  will  act 
reasonably  in  all  given  contingencies.  They 
are  not  bound  to  anticipate  and  provide 
against  extraordinary,  unusual,  and  im- 
probable conditions,  which  involve  inatten- 
tion on  the  part  of  others,  and  their  duty  to 
persons  thus  situated  only  begins  when  they 
have  good  reason  to  suppose  that  such  per- 
sons are  unconsciously  in  peril  or  disabled 
from  avoiding  it.  Cincinnati,  /.,  St.  L.  &* 
C.  R.  Co,  V.  Long,  31  Am.  &•  Etig.  R.  Cas. 
138, 112  Ind.  166,  II  West.  Rep.  322, 13N.E. 
Rep.  659^ 

*  Duty  of  engineer  when  person  is  seen  cross- 
ing railroad  track,  see  notes,  3  L.  R.  A.  683;  5 
/J.  786 ;  54  Am.  &  Eng.  R.  Cas.  i55i  "^'tr. 


w 


1138 


TRESPASSERS,  INJURIES   TO,  03,  64. 


53. after  discovery  in  perilous 

position. — In  the  country,  and  in  villages, 
the  liability  of  a  company  is  limited  to  neg- 
ligence and  want  of  care  occurring  after  the 
exposed  and  dangerous  position  of  the  in- 
jured party  came  to  the  knowledge  o(  the 
servants  charged  with  the  want  of  care. 
Dunkinan  v.  Wabask,  St.  L.  &*  P.  R.  Co.,  95 
Mo.  232, 10  West.  Rep.  396, 4  S.  W.  Rep.  670. 
—Quoting  and  distinguishing  Rine  v. 
Chicago&A.R.Co.,88  Mo.  392.— Reviewed 
IN  Prewitt  V.  Eddy,  115  Mo.  283.  —  Rine  v. 
Chicago  &*  A.  R.  Co.,  41  Am.  6-  Eng,  R. 
Cas.  555,  100  Mo.  228,  12  5.  W.  Rep.  640. 

54.  Bight  to  Tviisunio  that  person 
ftrill  leave  track.* — When  an  engineer 
sees  a  grown  person  walking  along  the  track 
300  yards  or  more  in  advance  of  an  ap- 
proaching train,  he  may  reasonably  presume 
such  person  to  be  in  the  possession  of  his 
faculties,  and  is  not  required  to  check  his 
train  until  it  becomes  apparent  that  the  tres- 
passer is  not  aware  of  its  approach,  or  is 
unable  to  extricate  himself  from  his  perilous 
condition ;  nor  is  he  guilty  of  culpable  negli- 
gence because  he  fails  to  discover  such  per- 
son on  emerging  from  a  curve  at  a  distance 
of  300  yards.  Frazer  v.  South  &*  N.  Ala. 
R.  Co.,  28  Am.  &-  Eng.  R.  Cas.  565,  81  Ala. 
185, 1  So.  Rep.  85.  — Reviewed  in  Georgia 
Pac.  R.  Co.  V.  Blanton,  84  Ala.  154,  4  So. 
Rep.  621. 

A  trespasser  on  a  track  is  there  at  his 
own  peril,  and  cannot  recover  unless  he 
shows  that  he  was  wilfully  injured  by  the 
company's  agents,  or  unless  they,  knowing 
his  perilous  situation  and  that  he  was  not 
apprised  of  his  peril,  recklessly  ran  the  train 
on  him.  The  servants  of  the  company  have 
the  right  to  presume  that  he  will  get  ofl 
the  track  in  time  to  avoid  injury,  unless 
there  is  something  in  his  situation  to  warn 
them  that  he  will  not ;  they  are  not  bound 
to  check  the  speed  of  the  train  unless 
they  discover  that  there  is;  and  an  omis- 
sion to  sound  the  whistle  or  ring  the  bell 

must  have   been  wilful   and    reckless    to 

warrant  a  recovery.     Sibley  v.  Ratliffe,  37 

Am.  6*  Eng.  R.  Cas.  295,  50  Ari.  \n,  8  5. 

W.  Rep.  686.— Following  St.  Louis,  I.  M. 

&  S.  R.  Co.  V.  Monday,  49  Ark.  257;  St. 

Louis,  I.  M.  &  S.  R.  Co.  v.  Fairbairn,  48 


•See  also  Crossings,  Injuries  to  Persons, 
XTC,  AT,  12. 

Engineer  may  presume  that  trespasser  has  or- 
dinary faculties  ;  duty  when  he  knows  that  he 
has  not,  see  note,  19  Am.  &  Eng.  R.  Cas.  34. 


•Ark.  491 ;  Litt4e  Rock,  M.  R.  4  T.  R.  Co. 
V.  Haynes,  47  Ark.  497;  St.  Louis,  I.  M.  & 
S.  R.  Co.  V.  Wilkerson,  46  Ark.  513;  St. 
Louis.  I.  M.  &  S.  R.  Co.  v.  Ledbetter,  45 
Ark.  249;  Little  Rock  &  Ft.  S.  R.  Co.  v. 
Pankhurst,  36  Ark.  371  ;  St.  Louis,  I.  M.  & 
S.  R.  Co.  V.  Freeman,  36  Ark.  41.— 5jf.  Louis, 
I.  M.  &*  S.  R.  Co.  V.  Monday,  31  Am.  St* 
Etig,  R.  Cas.  424,  49  Ark.  257,  4  S.  W.  Rep. 
782.— Quoting  Little  Schuylkill  N.  R.  & 
C.  Co.  V.  Norton,  24  Pa.  St.  469 ;  Philadel- 
phia &  R.  R.  Co.  V.  Hummel),  44  Pa.  St. 
378 ;  Mulherrin  v.  Delaware,  L.  &  W.  R. 
Co.,  81  Pa.  St.  375.  — Followed  in  Gulf,  C. 
&  S.  F.  R.  Co.  V.  Johnson,  54  Fed.  Rep.  474, 
10  U.  S.  App.  629,  4  C.  C.  A.  447 ;  Sibley  v. 
Ratliflfe,  37  Am.  &  Eng.  R.  Cas.  295,  50  Ark. 
477. —  Terre  Haute  &*  J.  R.  Co.  v.  Graham, 
12  Am.  &-  Eng.  R.  Cas.  77,  95  Ind.  286.  48 
Am.  Rep.  719.  Palmer  v.  Chicago,  St.  L.  Sf 
P.  R.  Co.,  31  Am.  &*  Eng.  R.  Cas.  364,  112 
Ind.  250,  1 1  IVest.  Rep.  676,  14  A^.  E.  Rep. 
70.  Norwood  v.  Raleigh  &*  G.  R.  Co.,  ill  N. 
Car.  236,  16  S.E.  Rep.  4.  Houston  &>  T.  C. 
R.  Co.  V.  Smith,  52  Tex.  178.  International 
&»  G.  N.  R.  Co.  V.  Garcia,  75  Tex.  583,  13 
5.  W.  Rep.  223. 

And  the  above  rule  applies  especially  to 
adults,  in  full  possession  of  the  faculties  of 
mind  and  body.  Indianapolis  &*  V.  R.  Co. 
V.  McClaren,  62  Ind.  566.— Reviewed  in 
Terre  Haute  &  I.  R.  Co.  v.  Graham,  1 2  Am.  & 
Eng.  R.  Cas.  77, 95  Ind.  286, 48  Am.  Rep.  719. 
— Baltimore  &*  O.  R.  Co.  v.  State,  69  Md. 
SSI,  18  Md.  L.  J.  824,  16  Atl.  Rep.  212. 
Maloy  V.  Wabash,  St.  L.  fi-  P.  R.  Co.,  84  Mo. 
270.  McAdoo  V.  Richmond  &»  D.  R.  Co.,  41 
Am.  &*  Eng.  R.  Cas.  S24,  105  N.  Car.  140,  1 1 
5.  E.  Rep.  316.  Syme  v.  Richmond  &•  D.  R. 
Co.,  113  N.  Car.  S58,  18  S.  E.  Rep.  114. 

A  company  whose  train  is  approaching  a 
man  walking  lengthwise  upon  its  track, 
if  the  bell  is  rung  and  the  whistle  sounded 
in  time  to  enable  him  to  get  of!,  is  not  liable 
for  an  injury  which  happens  to  him  under 
such  circumstances.  Finlayson  v.  Chicago, 
B.  &*  Q.  R.  Co.,  I  Dill.  {U.S.)  S79- 

An  engineer  has  a  right  to  presume  that 
a  person  seen  sitting  upon  the  track  about 
a  thousand  yards  ahead  is  awake  and  will 
move,  and  to  act  upon  such  presumption 
until  the  engine  is  within  eighty  or  ninety 
yards  of  him;  he  will  not  be  negligent  in 
not  stopping  the  train  or  whistling  sooner. 
Sims  f.  MacoH  &*  W.  R.  Co.,  28  Ga.  93. 

But  the  presumption  that  a  person  will 
leave  the  track  may  not  be  justified  under 


TRESPASSERS,  INJURIES   TO,  55-67. 


1139 


.  4  T.  R.  Co. 

^ouis,  I.  M.  & 
Ark.  513;  St. 
Ledbetter,  45 

S.  R.  Co.  V. 
^ouis,  I.  M.  & 
ii.—St.  Louis, 
\y,  31  Am.  6* 
,\S.W.  Rep. 
Ikill  N.  R.  & 
^69;  Philadel- 
ell,  44  Pa.  St. 

L.  &  W.  R. 

ED  IN  Gulf,  C. 

Fed.  Rep.  474, 
447;  Sibley  t/. 
9.  295,  50  Ark. 
'tf.  V.  Graham, 
)5  Ind.  286.  48 
cago,  St.  L.  <S- 
,  Cas.  364,  112 
14  N.  E.  Rtp. 
.  R.  Co.,  Ill  N, 
tuston  &•  T.  C. 
International 
'S  Tex.  583.  13 

;s  especially  to 
he  faculties  of 
Us  &*  V.  R.  Co. 
Reviewed  in 
ham,  12  Am.  & 
8  Am.  Rep.  719. 

State,  69  Md. 
Atl.  Rep.   212. 

R.  Co.,  84  Mo. 
^  D.  R.  Co.,  41 
A'.  Car.  140,  II 
mond  &*  D.  R. 

Rep.  114. 
approaching  a 
pon    its  track, 
histle  sounded 
}fT,  :s  not  liable 

to  him  under 
son  V.  Chicago, 

'•)  579- 

i  presume  that 
he  track  about 
iwake  and  will 
1  presumption 
ghty  or  ninety 
e  negligent  in 
istling  sooner. 
28  Ga.  93. 
a  person  will 
lustified  under 


some  circumstances,  as  in  case  of  a  person 
intoxicated,  asleep,  or  otherwise  ofl  his 
guard.  Central  R.  Co.  v.  Brinson,  19  Am. 
&*  Eng.  R.  Cas.  42,  70  Ga.  207.— Reviewed 
IN  Western  &  A.  R.  Co.  v.  Meigs,  74  Ga.  857. 

And  ii  employes  see  a  man  on  the  track 
at  a  place  where,  or  under  such  circum« 
stances  that  he  cannot  readily  leave  it  in 
time  to  avoid  injury,  or  if  they  discover 
that  for  any  cause  he  is  unaware  of  his  pe.  ili 
then  they  are  bound  to  stop  the  train  if  it 
can  be  done ;  but  a  company  is  not  re- 
sponsible ioT  injury  resulting  to  a  person  on 
account  of  its  employ6s  not  seeing  him  when 
he  is  in  a  place  where  he  has  no  right  to  be. 
Mobile  &*  O.  R.  Co.  v.  Stroud,  31  Am.  &* 
Eng.  R.  Cas.  443,64  A/w.  784,  2  So.  Rep.  171. 

Where  a  person  is  killed  while  walking 
on  a  track  in  front  of  a  moving  engine,  and 
alongside  of  an  engine  on  another  track 
which  is  hauling  a  heavy  train,  negligence 
cannot  be  imputed  to  the  company  by  as* 
suming  that  the  engineer  whose  engine 
does  the  killing  must  have  seen  the  other 
train,  and  have  known  that  the  engine  was 
exhausting  so  heavily  as  to  make  it  impos- 
sible for  the  person  to  hear  the  approach  of 
the  engine  behmd  him.  Symt  v.  Richmond 
&•  D.  R.  Co.,  113  N.  Car.  558,  18  S.  E. 
Rtp.  114. 

Whether  railway  operatives,  after  blow- 
ing the  whistle  or  ringing  the  bell,  may  pre- 
sume that  a  person  upon  the  track  will 
leave  it  in  time  depends  upon  the  facts  of 
each  particular  case,  and  the  court  should 
not  ctiarge  absolutely  that  they  may  so  pre- 
sume. Ttxas  6-  P.  R.  Co.  v.  Roberts,  2  Tex. 
Civ.  App.  1 II.  20  5.  W.  Rep.  960. 

66.  Where  it  appears  that  he  can- 
not or  will  not  leave  track.  —  The 
liability  of  a  company  for  injuries  to  a  tres- 
passer on  the  track  does  not  commence 
when  he  is  first  seen  on  the  track,  but  when 
it  is  first  discovered  that  he  is  ignorant  of 
the  approaching  danger,  or  cannot  extricate 
himself  from  it;  and  if  this  is  not  discov- 
ered until  it  is  too  late  to  prevent  the  injury 
by  the  use  of  all  proper  appliances,  the  rail- 
road company  is  not  liable.  Louisville  &■» 
N.  R.  Co.  v.  Black,  45  Am.  &*  Eng.  R.  Cas. 
38.  89  Ala.  313,  8  So.  Rep.  246. 

Those  operating  trains  are  under  no  obli- 
gation to  keep  a  lookout  for  persons  on  the 
track  at  unexpected  places,  and  they  may 
assume  that  persons  at  such  places  will  quit 
the  track  in  time  to  avoid  danger,  unless, 
after  such  trespassers  are  discovered,  it  is  ap- 


parent that  they  do  not  hear  the  approach- 
ing train,  or  will  not  quit  the  track  in  time. 
France  v.  Louisville  6*  N.  R.  Co.,  (Xy.)  aa 
S.  W.  Rep.  851. 

While  plaintiffs  intestate  was  walking 
with  his  wife  on  defendants  tracks  across 
a  bridge,  and  when  about  the  middle  thereof, 
he  was  struck  and  killed  by  the  locomotive 
of  a  passenger  train.  The  bridge  was  115 
feet  long,  8  feet  wide,  and  18  feet  above  a 
stream.  The  track  was  straight  for  2000 
feet,  and  there  was  nothing  to  obstruct  the 
engineer's  vision.  Held,  that  if  intestate  was 
in  such  a  position  that  he  could  not  safely 
get  ofl  the  track,  and  the  engineer  saw  his 
situation,  the  engineer  was  bound  to  make 
a  reasonable  effort  to  avoid  running  him 
down,  and  that  the  facts  shown,  without 
explanation,  entitled  plaintiffs  to  go  to  the 
jury,  and  it  was  error  to  nonsuit.  White 
V.  New  York  C.  &'  H.  R.  R.  Co.,  47  A^.  Y.S. 
R.  174,  20  A^.  Y.  Supp.  6. 

As  a  rule,  an  engineer  has  the  right  to 
assume  that  a  person  walking  upon  the 
track  is  in  possession  of  all  his  faculties, 
yet,  where  his  conduct  is  such  as  to  ex- 
cite a  doubt  of  this,  the  engineer  is  bound 
to  use  greater  caution  and  to  stop  the  train 
if  necessary  to  secure  his  safety.  Clark  v. 
Wilmington  6-  W.  R.  Co.,  48  Am.  &•  Eng. 
R.  Cas.  546,  109  A'l  Car.  430,  14  S.  E.  Rep. 
43.— Distinguished  in  High  v.  Carolina 
C.  R.  Co.,  112  N,  Car.  385. 

56.  Care  required  after  discovery 
of  peril,  generally.— In  an  action  by  a 
trespasser,  it  is  immaterial  whether  or  not 
he  used  proper  diligence  to  discover  ap- 
proaching trains  before  he  entered  on  the 
track,  or  while  he  continued  to  walk  along 
it ;  and  it  is  equally  immaterial  whether  the 
men  in  chai^o  of  the  train  might,  by  the 
exercise  of  due  diligence,  have  discovered 
him  on  the  track  in  time  to  avoid  the  in- 
jury. The  only  inquiry  is,  whether  they 
exercised  due  diligence  after  they  discov- 
ered him.  Glass  v.  Memphis  &•  C.  R.  Co., 
9^  Ala.  581,  10  So.  Rep.  215. 

Even  if  plaintiff,  when  injured  while  cross- 
ing defendant's  track  at  a  footpath,  not  at  a 
public  highway,  was  upon  the  track  without 
right  or  license,  this  did  not  relieve  the  com- 
pany from  the  duty  of  exercising  proper  care 
to  avoid  injury.  Clampit  v.  Chicago,  St.  P. 
&*  K.  C.  R.  Co.,  49  Am.  &*  Eng.  R.  Cas.  468, 
84  Iowa  71.  $0  N.  W.  Rep.  673. 

67.  Ordinary  care.  —  If  two  men  are 
seen  on  the  track  in  front  of  a  train,  one  risk- 


r-P!»T' •  f' 


1140 


TRESPASSERS,  INJURIES   TO,  58.59. 


ing  his  own  safety  in  an  effort  to  signal  the 
foremost  man  to  leave  the  track,  the  engi- 
neer is  guilty  of  a  wilful  wrong  if,  teeing  the 
signals,  he  falls  to  use  ordinary  care  to  stop 
the  train ;  but  it  is  otherwise  if  he  does  not 
see  the  signals.  Palmer  v.  Chicago,  St.  L. 
&*  P.  R.  Co.,  31  Am.  &*  Eng.  R.  Cas.  364, 
112  Ind.  230,  II  West.  Rep.  676,  \\  N.  E. 
Rep,  70. 

A  company  is  liable  for  injuries  inflicted 
on  a  trespasser  for  want  of  ordinary  care 
after  the  perilous  position  of  the  party  is 
discovered.  Whitehead  v.  St.  Louis,  I.  AT. 
&*  S.  R.  Co.,  39  Am.  &*  Eng.  R.  Cas.  410, 99 
Mo.  263,  II  5.  W.  Rep.  751. 

Although  one  is  struck  and  killed  while 
walking  on  a  track,  the  company  will  still 
be  liable  if  deceased  was  in  imminent  peril, 
and  its  employes  knew  of  such  peril  in  time 
to  have,  by  the  exercise  of  ordinary  care, 
avoided  the  accident,  or  if  the  employes,  by 
the  exercise  of  ordinary  care,  could  have 
become  aware  of  the  peril  in  time  to  have 
done  so  and  failed  in  that  regard,  and  owing 
to  such  failure  the  deceased  was  killed. 
Guenther  v.  St.  Louis,  /.  M.  &*  S.  R.  Co.,  108 
Mo.  18,  18  S.  W.  Rep.  846.— Followed  in 
Lynch  v.  St.  Joseph  Sc  I.  R.  Co.,  in  Mo. 
601.  Quoted  in  Prewitt  v.  Eddy,  115  Mo. 
383. — Reardon  v.  Missouri  Pac.  Jt.  Co.,  114 
Mo.  384,  21  S.  W,  Rep.  731. 

Notwithstanding  a  person  may  trespass 
upon  a  track,  it  is  the  duty  of  the  engineer 
to  exercise  ordinary  diligence  and  care  to 
avoid  killing  him.  Remer  v.  Lotig  Island R. 
Co., ^i Hun  352.  IS  A^.  Y.  S.  R.  884.  i  A^.  Y. 
Supp.  124;  affirmed  in  Wi  N.  Y.  669,  mem., 
31  N.  E.  Rep.  1 1 16,  mem.,  23  N.  Y.  S.  R. 
994,  mem. 

68.  Reasonable  diligence.  —  In  the 
absence  of  statutory  regulations,  a  company 
is  under  no  obligation  to  maintain  a  special 
lookout  for  intruders  or  trespassers  on  its 
track,  but  is  only  bound  to  tlic  exercise  of 
reasonable  diligence  after  they  are  or  ought 
to  be  discovered,  and  is  only  liable  for  inju- 
ries caused  by  wanton,  reckless,  or  inten- 
tional negligence.  Georgia  Pac.  R.  Co.  v. 
BlantoH,  84  Ala.  154,  4  So.  Rep.  621.— Re- 
viewing Memphis  &.  C.  R.  Co.  v.  Womack, 
84  Ala.  149 ;  Frazer  v.  South  &  N.  Ala.  R. 
Co.,  81  Ala.  185. 

Except  at  public  crossings,  and  within  the 
limits  of  cities  or  towns,  a  company  is  un- 
der no  obligation  to  maintain  a  special 
lookout  for  intruders  or  trespassers  on  its 
track,  and  is  only  bound  to  the  exercise  of 


reasonable  diligence  after  they  are  or  ought 
to  be  discovered.  (Stone,  C.J.,  dissenting.) 
Memphis  &^  C.  R.  Co.  v.  Womack,  37  Am. 
&»  Eng.  R.  Cas.  308,  84  Ala.  149,  4  So. 
Rep.  618.  —  Distinguishing  Savannah  & 
M.  R.  Co.  V.  Shearer,  58  Ala.  672 ;  South 
&  N.  Ala.  R.  Co.  V.  Sullivan,  59  Ala.  272 ; 
South  &  N.  Ala.  R.  Co.  v.  Donovan,  84 
Ala.  141.— Followed  in  Glass  v.  Memphis 
&  C.  R.  Co.,  94  Ala.  581.  Reviewed  in 
Savannah  &  W.  R.  Co.  v.  Meadors,  95  Ala. 
137;  Georgia  Pac.  R.  Co.  v.  Blanton,  84 
Ala.  154,  4  So.  Rep.  621. 

The  fact  that  a  person  is  wrongfully  on  a 
track  will  not  relieve  employes  in  charge 
of  a  train  from  the  duty  of  using  reason- 
able care  to  avoid  a  collision;  but  that 
duty  only  arises  from  the  time  t  at  the  per- 
son is  discovered  by  such  employes  to  be 
in  peril.  State  v.  Baltimore  &*  0.  R.  Co., 
69  Md.  494,  16  At  I.  Rep.  210. 

In  an  action  for  the  death  of  plaintiff's 
son.  it  appeared  that  he,  in  going  from  a 
street  to  a  depot  500  feet  distant,  walked 
upon  the  main  track  about  50  feet  to  a 
switch,  and  then  walked  on  a  side  track  on 
which  cars  were  standing  which  had  re- 
cently been  left  there.  The  engine,  which 
was  returning,  was  at  the  time  from  90 
to  150  feet  distant.  The  engineer  was  at 
his  proper  place  and  could  have  seen  de- 
ceased before  he  got  on  the  track,  but  not 
after  that,  except  by  going  to  the  other  side 
of  the  cab.  The  fireman  was  on  the  top  of 
the  tender  breaking  coal,  and  coi<ld  hfve 
seen  deceased  at  anytime  after  'V''  it^tcj 
went  upon  the  main  track  aiu-  ..'.'. 
crossing.  Tiie  engineer  and  fir..:  i.ti 
not  called  as  witnesses.  Held,  thi<.t 
accident  happened  at  a  depot  wU 
employ6s  should,  in  the  discharge  of  their 
ordinary  duties,  be  on  the  watch,  the  evi- 
dence was  sufhcient  to  show  that  the  engi- 
neer and  fireman  knew  that  the  deceased  was 
on  the  track,  and  by  the  exercise  of  reason- 
able care  could  have  avoided  injuring  him. 
Rine  v.  Chicago  &»  A.  R.  Co.,  41  Am.  &■• 
Eng.  R.  Cas.  555,  100  Mo.  228,  12  S.  W. 
Rep.  640. 

69.  All  reasonable  efforts  and 
means.  —  The  liability  of  a  company  for 
injuring  a  trespasser  on  the  track  depends 
on  whether  those  in  charge  of  the  train, 
after  discovering  that  he  was  not  going  to 
leave  the  track,  used  all  the  means  in  their 
power  to  stop  the  train  before  it  struck 
him.    Saldana  r.  Galveston,  H.  4*  S.  A.  R. 


•d 

the 
the 


ire  or  ought 
dissenting.) 
ni,  37  Am. 
149,  4  So. 
>avaiinah  & 
672 ;  South 
9  Ala.  273; 
)onovan,  84 
V.  Memphis 
5V1EWED  IN 
ors,  95  Ala. 
Blanton,  84 

ngfuUy  on  a 
s  in  charge 
jing  reason- 
;  but  that 
at  the  per- 
^loyes  to  be 
-  O.  /?.  Co., 

of  plaintiff's 
oing  from  a 
tant,  walked 

0  feet  to  a 
ide  track  on 
ich  had  re- 
ngine,  which 
me  from  90 
ineer  was  at 
ive  seen  de- 
ack,  but  not 
he  other  side 
>n  the  top  of 

1  could  hf'.'e 

.     .,1 
.  -^ 

the 
.;  the 
arge  of  their 
itch,  the  evi- 
lat  the  engi- 
deceased  was 
se  of  reason- 
injuring  him. 
K,  41  Am.  &» 
8,  12  S.    IV. 

fforts   and 

company  for 
ack  depends 
of  the  train, 
not  going  to 
eans  in  their 
)re  it  struck 
'.  &*  S.  A.  Jt, 


ir:.i  :.ii 

,  t^i'.t 
)t  wl. 


TRESPASSERS,  INJURIES  TO,  60-63. 


1141 


Co.,  43  Ftd.  Rtp.  862.— Quoting  Baltimore 
&  P.  R.  Co.  V.  Jones,  95  U.  S.  441 ;  Mis- 
souri Pac.  R.  Co.  V.  Weisen.  65  Tex.  447. 

While  a  company  is  under  no  legal  obli- 
gation  to  look  out  for  trespassers  on  its 
track,  or  to  anticipate  their  presence  there, 
yet  when  servants  of  the  company,  in 
charge  of  a  train,  discover  that  a  trespasser 
on  the  track  has  placed  himself  in  peril,  it 
is  their  duty  to  use  all  reasonable  means  at 
their  command  to  save  his  life,  and  the 
company  is  liable  for  their  failure  to  do  so. 
Louisville  &>  N,  K.  Co.  v.  Coleman,  31  Am. 
&>  Eng.  R.  Cas.  390,  86  /tTy.  556,  6  .9.  W^. 
Jiep.  438,  8  S.  IV.  Rep.  875.— Approving 
Louisville  &  N.  R.  Co.  v.  Howard,  82  Ky. 
212. — State  V.  Baltimore  &*  0.  R.  Co.,  35 
Am,  &•  Eng.  R.  Cas.  412,  69  Md.  339,  14 
Atl.  Rep.  688,  12  Cent.  Rep.  890.  Mobile  <S- 
O.  R.  Co.  V.  Watfy,  69  Miss.  145,  13  So. 
Rep.  825. 

60. consistent  with   safety  of 

train  and  persons  thereon.  —  When 
persons  in  charge  of  a  train  discover  the 
peril  of  a  person  on  the  track,  or  are  in  a 
position  where  they  ought  to  have  discov- 
ered it — a  position  in  which  the  circum- 
stances, movements,  or  condition  of  the 
person  injured  would  manifest  to  a  vigilant 
observer  that  such  person  is  unaware  of  i'., 
or  is  unable  to  extricate  himself — a  culpa- 
ble omission  to  use  the  means  in  hand  to 
prevent  an  accident,  when  a  prompt  resort 
thereto  might  have  prevented  it,  without 
endangering  the  freight  or  passengers  being 
transported  on  the  train,  will  be  regarded  as 
reckless  or  intentional  negligence.  But  the 
rule  does  not  apply  where  the  manifesta- 
tion of  the  peril  and  the  catastrophe  are  so 
close  in  point  of  time  as  to  leave  no  room 
for  preventative  effort.  Frazerv.  Souths 
N.  Ala.  R.  Co.,  28  Am.  Sr*  Eng.  R.  Cas. 
565.  81  Ala.  185,  I  So.  Rep.  85. 

The  servants  of  a  company  owe  to  a  tres- 
passer on  its  trestle  only  the  duty,  so  soon 
as  he  is  discovered  on  the  track,  of  promptly 
using  all  efforts  within  their  power,  con- 
sistent with  the  safety  of  the  train  and 
of  those  upon  it,  to  avoid  injuring  him. 
Shawv.  Missouri  Pac.  R.  Co.,  104  Mo.  648, 
16  S.  IV.  Rep.  842.  Rear  don  v.  Missouri 
Pac.  R.  Co.,  114  Mo.  384,  21  S.  W.  Rep.yy. 

The  ordinary  care  required  of  an  engi- 
neer in  such  case  is  that  care  which  an 
ordinarily  prudent  person  would  have  used 
under  similar  circumstances,  having  due  re- 
gard to  his  own  safety  and  to  the  safety  of 


the  other  persons  on  the  train,  and  making 
due  allowance  for  the  fact  that  he  was 
required  to  form  his  judgment  and  to  act 
instantaneously.  Prewitt  v.  Eddy,  115  M0. 
283,  21  5.  W.  Rep.  742. 

Although  it  is  the  duty  of  an  engineer, 
after  discovering  the  peril  of  even  a  tres- 
passer on  the  track,  to  do  everything  con- 
sistent with  safety  to  prevent  an  accident, 
yet  cjch  rule  does  not  apply  to  a  case 
where  the  engineer  sees  such  person  put'-ng 
himself  out  of  all  apparent  dangei  and  had 
no  reason  to  believe  that  his  '  rain  might 
leave  the  track  while  'passing  such  person 
and  fall  upon  him.  McKenna  v.  Missouri 
Pac.  R.  Co.,  54  Mo.  App.  161. 

61.  Duty  to  check  speed.  — When 
an  engineer  sees,  or  can  by  proper  watch- 
fulness discover,  that  a  traveler  has  placed 
himself  in  peril  on  a  trestle  or  bridge,  he 
should  act  upon  the  supposition  that  the 
person  may  be  drunk  or  bereft  of  reason 
from  sudden  terror,  and  use  all  of  the 
means  at  his  command,  consistent  with 
safety,  to  diminish  the  speed  of  his  train. 
Clark  V.  Wilmington  &*  W.  R.  Co.,  48  Am. 
&*  Eng.  R.  Cas.  546,  109  A''.  Car.  430,  14  S. 
E.  Rep.  43.— Reviewing  Cook  v.  Central 
R.  &  B.  Co..  67  Ala.  533. 

62.  and  put  on  bralies.  —  The 

engineer  of  a  train  on  a  main  track,  seeing 
the  danger  of  a  trespasser  on  a  side  track 
by  reason  of  the  approach  of  a  detached  flat 
car,  blew  his  alarm  whistle  and  called  in  a 
loud  voice  to  the  man  on  the  side  track  to 
get  off  the  track,  but  his  warning  was  not 
heeded.  Thereupon  the  conductor,  who 
was  on  the  rear  end  of  the  detached  car, 
standing  at  the  brake,  ran  to  the  front  end 
of  the  car  and  called  in  a  loud  voice  to  the 
man  to  get  off  the  track,  but  he  failed  to 
heed  the  call,  which  he  doubtless  did  not 
hear  by  reason  of  the  noise  at  the  time,  was 
struck  by  the  car  before  the  conductor  could 
get  back  to  the  brake,  and  killed.  Held, 
that  there  was  sufficient  evidence  to  justify 
the  jury  in  concluding  that  the  conductor 
was  guilty  of  ordinary  negligence  in  not  at 
once  putting  on  the  brakes  when  he  saw 
that  the  deceased  did  not  heed  the  en- 
gineer's warning.  Louisville  &*  N.  R.  Co. 
v.  Coleman,  31  Am.  &*  Eng.  R.  Cas.  390,  86 
Ky.  556,  6  S.  W.  Rep.  438,  8  S.  VV.  Rep.  875. 

63.  Duty  to  reverse  engine.— Not- 
withstanding the  negligence  of  a  person  in 
going  on  a  track,  the  train  employes  have 
no  right  to  run  over  him,  and  a  decisive 


fm^ 


1143 


TRESPASSERS,  INJURIES    TO,  e4. 


; 

" 

i 

IJ 

question  in  such  case  is  whether,  after  dis- 
covering  his  position,  and  tliat  he  did  not 
move  at  the  sound  of  the  alarm  whistle,  the 
engineer  did  everything  in  his  power  to 
avoid  a  collision;  but  where  the  engineer 
seems  to  have  been  competent,  and  had  to 
act  promptly,  the  company  is  not  chargeable 
with  negligence  because  he  blew  the  whistle 
instead  of  reversing  the  engine,  where  it 
seems  that  he  could  not  do  both  at  the  same 
time,  and  where  he  testified  that  it  was  not 
usual  under  such  circumstances  to  reverse 
the  engine,  as  it  was  attended  by  some  dan- 
ger. BM  v.  Hannibal  <S-  St.  J.  R.  Co.,  4 
Am.  &*  Efig.  R.Cas.  580,  72  Mo.  50. 

The  evidence  tended  to  show  that  plain- 
tiff stepped  on  defendant's  track  in  its  yard, 
that  almost  immediately  the  engineer  of  an 
approaching  locomoti<':  sounded  the  danger 
whistle,  when  plaintiff  turned  his  head  and 
loolced  back  in  the  direction  of  the  engine 
and  at  once  fell  backward  on  the  track  and 
seemed  to  be  struggling  to  get  off;  that  the 
train  was  running  from  seven  to  twelve 
miles  an  hour  and  could  have  been  stopped 
in  a  distance  varying  from  75  to  400  feet, 
but  that  the  engineer  did  not  reverse  the 
engine  nor  apply  the  sand  box,  and  ran  over 
plaintiff's  leg.  Held,  that  even  if  plaintiff 
was  a  trespasser,  it  was  for  the  jury  to 
determine  whether  the  company's  servants 
used  ordinary  care,  after  plaintiff's  peril  be- 
came known,  to  avert  the  accident.  Rear- 
don  v.  Missouri  Pac.  R.  Co.,  114  Mo.  384,  21 
S.  W.  Rep.  731. 

64.  Duty  to  stop  train.  — The  pres- 
ence of  persons  on  a  track  does  not  require 
employes  to  stop  their  trains  or  even  check 
them,  unless  the  circumstances  show  that 
their  approach  is  not  observed,  or  that  the 
person  is  unable  to  leave  the  track.  Mobile 
&*  M.  R.  Co.  V.  Blakefy,  59  Ala.  471.— Fol- 
lowed IN  Memphis  &  C.  R.  Co.  v.  Cope- 
land,  61  Ala.  376. 

When  a  person  of  adult  years  is  seen  on 
a  railroad  track,  in  advance  of  an  approach- 
ing train,  and  shows  by  his  actions  that  he 
is  aware  of  its  approach,  and  is  using  the 
proper  efforts  to  get  out  of  its  way,  the 
person  in  charge  of  the  train  is  not  re- 
quired to  stop  it,  nor  ordinarily  even  to 
check  its  speed ;  but  if  the  person  is  on 
horseback,  on  a  high  embankment,  or  in  a 
deep  cut  from  which  he  probably  cannot 
escape  in  time,  or  is  suddenly  thrown  from 
his  horse  and  cannot  escape,  it  is  thr  duty 
of  the  engineer  promptly  to  use  all  means 


in  his  power  to  avoid  injury,  and  the  com- 
pany is  liable  if  he  fails  to  do  so.  Tanner 
v.  Louisville  S*  N.  R.  Co.,  60  Ala.  631. 
— FOLLOWiNO  Philadelphia  &  R.  R.  Co.  v. 
Hummell,  44  Pa.  St.  37s.— Coo*  v.  Central 
R.&'B.  Co.,  67  Ala.  533. 

A  company,  if  not  aware  of  the  position 
of  danger  of  a  person  upon  or  near  its  track, 
owes  such  person  no  duty  to  take  any  par- 
ticular precaution,  and  is  not  guilty  of  neg- 
ligence if  injury  results  from  the  running 
of  its  cars  in  the  ordinary  way ;  but  if  the 
danger  is  known  to  the  employes  of  the 
company,  they  are  bound  to  use  care,  and  if 
they  discovered  it  in  time  to  have  stopped 
the  train  and  to  have  avoided  the  accident, 
they  are  guilty  of  negligence  in  failing  to 
do  so.  Esrey  v.  Southern  Pac.  Co.,  88  Cal. 
399.  26  Pac.  Rep.  211. 

The  servants  of  a  company  in  charge  of 
a  moving  train  are  not  bound  to  stop  the 
same  because  a  person  ahead  is  walking 
near  th.<  track  and  in  a  line  nearly  parallel 
with  it ;  cr  because  a  vehicle  is  seen  slowly 
approaching  the  track,  or  standing  a  few 
yards  from  it ;  and  should  such  person  sud- 
denly get  upon  the  track  and  be  injured  or 
killed  the  fault  will  not  be  that  of  the 
company  or  its  agents,  unless  their  conduct 
is  so  grossly  careless  that  the  exercise  of 
proper  and  reasonable  caution,  by  the  party 
injured  or  killed,  could  not  have  protected 
him.  Chicago,  R.  J.  6-  P.  R.  Co.  v.  Austin, 
69  ///.  426. 

It  is  error  to  instruct  the  jury  to  find  for 
defendant,  in  an  action  against  a  railroad 
for  killing  a  person  who  was  sitting  on  the 
track  at  a  place  where  he  had  no  right  to 
be,  where  it  appears  that  the  train  could  be 
stopped  on  a  space  of  400  to  500  feet,  and 
that  he  was  discovered  by  the  trainmen 
when  from  462  to  1287  feet  away,  they  hav- 
ing apprehended  that  he  would  not  get  off, 
though  the  alarm  was  given  and  an  effort 
made  to  stop  the  train.  Wren  v.  Louis- 
ville, St.  L.  &*  T.  R.  Co.,  {Ky.)  3o  S.  W. 
Rep.  215. 

Where  employes  in  charge  of  a  train 
have  given  all  the  usual  and  proper  signals 
to  warn  persons  of  their  approach,  they  are 
not  required  to  stop  the  train  on  discovering 
a  person  on  the  track  unless  they  have 
reason  to  believe  that  he  is  laboring  under 
some  disability,  or  that  he  does  not  hear  or 
comprehend  the  signals.  Freeh  v.  Phila- 
delphia, IV.  &»  B.  R.  Co.,  39  Md,  574,  10 
Am.  Ry.  Refi.  474. 


TRESPASSERS,  INJURIES   TO,  65-67. 


1143 


Where  the  engineer  sees  a  man  on  the 
track  nearly  a  mile  ahead,  who  does  not  get 
off  on  the  whistle  being  blown  repeatedly 
and  the  bell  rung,  it  is  the  duty  of  the 
engineer  to  slow  down,  and  even  to  stop 
the  train,  in  order  to  avoid  killing  such 
man.  Bouwmttster  v.  Grand  Rapids  &*  I. 
R.  Co.,  28  Am.  &*  Eng,  R.  Cas.  476,  63  Mich. 

557.  30  ^-  ^-  RtP-  337. 

A  locomotive  engineer  is  not  bound  to 
stop  his  train  or  slacken  its  speed  on  seeing 
a  person  at  considerable  distance  away  on 
a  trestle,  when  he  cannot  tell  precisely 
whether  the  person  is  on  or  near  the  trestle. 
He  has  a  right  to  suppose  that  neither  the 
vision  nor  hearing  of  the  person  is  im> 
paired,  and  that  he  will  get  ofT  the  track 
before  the  train  reaches  him.  Malay  v. 
Wabash,  St.  L.  6-  P.  R.  Co..  84  Mo.  270. 
Rear  don  v.  Missouri  Pac.  R.  Co.,  114  Mo. 
384.  21  5.  W.  Rep.  73'. 

PlaintifT's  intestate,  a  boy  of  fifteen,  got 
on  the  step  of  an  outgoing  train,  and  after 
riding  some  distance  eitlier  fell  ofl  or 
jumped  off,  and  lay  in  the  space  between  the 
two  tracks.  Tiie  engineer  on  a  train  going 
in  the  opposite  direction,  thinking  he  lay 
clear  of  the  train,  made  no  effort  to  stop ; 
but  after  the  engine  and  some  of  the  cars 
had  passed  the  boy  moved  so  that  the  wheel 
of  the  last  car  ran  over  him.  Held,  that 
the  engineer  was  not  negligent  in  failing  to 
stop  when  he  first  saw  the  boy.  And  the 
company  could  not  be  held  liable  unless 
the  engineer  intentionally,  wantonly,  or  reck- 
lessly ran  over  him.  McKenna  v.  New  York 
C.  fi-  H.  R.  R.  Co.,  8  Daly  (N.  Y.)  304. 

The  duty  of  one  in  charge  of  a  train  to 
stop  its  progress  on  account  of  the  prox- 
imity to  the  track  of  one  in  advance  of  the 
train  does  not  arise  until  it  becomes  mani* 
fest  that  such  person  intends  to  go  upon  the 
track  in  front  of  the  train.  International 
&*  G.  N.  R.  Co.  V.  Kuehn,  35  Am.  6*  Eng.  R. 
Cas.  421,  70  Tex.  582,  8  S.  W.  Rep.  484. 

66.  Unavoidable  accidents.  — 
Though  an  engineer  sees  one  lying  upon 
the  track  at  a  distance  before  him,  yet  if  he 
honestly  mistakes  him  for  some  inanimate 
object  until  it  is  too  late  to  avoid  running 
over  him,  the  company  is  not  liable  for  the 
mistake  and  injury.  Little  Rock,  M.  R.  &* 
T.  R.  Co.  V.  Haynes,  28  Am.  S-  Eng.  R. 
Cas.  572,  47  Ark.  497,  i  S.  IV.  Rep.  774. 

A  company  is  not  necessarily  liable  for  a 
personal  injury  because  the  engineer  could 
have  seen  a  person  on  the  track  where  plain- 


tiff was  injured,  where  the  evidence  fails  to 
show  that  the  train  could  have  been  checked 
in  time  to  prevent  the  injury.  Chicago,  B. 
6-  Q.  R.  Co.  V.  Van  Patten,  64  ///.  510. 

Where  a  person  vv^ilking  on  the  track 
catches  his  foot  in  a  catile-guard  and  is  so 
injured  by  a  passing  train  that  death  results, 
no  negligence  can  be  imputed  to  those  in 
charge  of  the  train  v/here  there  is  not 
sufficient  evidence  to  authorize  the  jury  in 
finding  that  they  saw  the  deceased  in  time 
to  stop  the  train.  Louisville  &*  N.  R.  Co.  v. 
Kellem,  (FTy.)  21  S.  W.  Rep.  2jo. 

Plaintiff  was  injured  while  attempting  to 
remove  a  small  child  from  the  track.  The 
brakes  were  applied  as  soon  as  plaintiff  at- 
tempted to  go  on  the  track,  but  it  was  too 
late  to  stop  the  train  before  a  collision  oc- 
curred, the  alarm  whistle  having  been  pre- 
viously sounded.  The  company  was  charged 
with  negligence  in  that  the  engineer  should 
have  seen  the  child  and  stopped  the  train. 
Held,  not  sufficient  proof  of  negligence.  The 
engineermightassumethat  the  person  on  the 
track  would  get  off.;  and  he  was  not  bound  to 
expect  helpless  infants  on  the  track.  Burnes 
v.  Staten  Island  R.  T.  R.  Co.,  44  N.  Y.  S.  R. 
271,  63  Hun  628,  mem.,  17  N.  Y.  Supp.  741. 

66.  person  coming  suddenly 

on  track.  —  A  brakeman  who  is  at  his 
place  on  a  car  has  a  light  to  presume,  even 
if  he  sees  the  deceased  approaching  the 
track,  that  the  latter  either  sees  or  hears 
the  approach  of  the  car  and  will  not  reck- 
lessly place  himself  in  front  of  it,  and  this 
is  particularly  the  case  where  the  stepping 
of  the  decease^  on  the  track  and  the  colli- 
sion are  simultaneous,  so  that  it  is  impos- 
sible to  stop  the  car  after  deceased  has  put 
himself  in  peril.  Yancey  v.  Wabash,  St.  L. 
6-  P.  R.  Co.,  93  Mo.  433,  6  S.  W.  Rep.  272. 

If  a  trespasser  comes  upon  the  track  just 
as  a  passenger  train  is  about  to  pass,  and  is 
run  over  and  killed,  the  engineer  doing  all 
in  his  power  to  check  his  train  but  failing 
to  do  so  in  the  distance  of  450  feet,  there 
is  no  liability  for  damages.  Caie  of  At- 
lantic, M.  &*  0.  R.  Co..  4  Hughes  ( [/.  S.)  157. 

/.  Duty  to  Children,  Helpless.  Deaf, 
Idiotic,  Intoxicated,  or  Sleep- 
ing Trespassers. 

67.  Generally.*  —  If  an  engineer  dis- 
covers, or,  by  reasonable  watchfulness,  may 

*  Duty  to  person  lying  on  the  track,  see  note, 
19  Am.  &  Eng.  R.  Cas.  97. 


pp^ 


i  1 


1144 


TRESPASSERS,  INJURIES  TO,  e8-69a. 


V  • 
M  : 


i 


discover,  a  porson  lying  upon  the  track 
asleep,  or  drun'c,  nr  sees  upon  the  tracic  a 
human  being  who  is  known  by  him  to  be 
insane,  or  otherwise  insensible  to  danger,  or 
unable  to  avoid  it,  it  is  his  duty  to  resolve 
all  doubts  in  favor  of  the  preservation  of 
life,  and  immediately  to  use  every  available 
means,  short  of  imperiling  the  lives  of  pas- 
sengers, to  stop  the  train.  Dtans  v.  Wil- 
mington  &■'  PV.  A'.  Co.,  45  Am.  &*  Eng.  A'. 
Cas.  45,  107  N.  Car.  686,  12  S.  E.  Rep.  77. 

In  such  a  case,  the  jury  were  at  liberty  to 
exercise  their  own  common  sense,  and  to 
use  the  knowledge  acquired  by  their  obser- 
vation and  experience,  without  direct  testi- 
mony from  expert  witnesses,  in  determining 
how  many  feet  or  yards  of  the  track  the 
engine  must  have  traversed  before  the  engi- 
neer could  have  put  a  complete  stop  to  its 
movement  without  danger  to  those  who 
were  on  the  train.  Deans  v.  Wilmington 
&»  W.  R.  Co.,  45  Am.  &>  Ettg.  R.  Cas.  45, 
107  A'.  Car.  686,  ii  S.  E.  Rep.  77. 

08«  On  track  in  liolploss  condition. 
—  If  a  person  appears  upon  a  track  in  a 
helpless  condition,  and  the  engineer  and  his 
assistants  discover  him  in  time  to  stop  the 
train  before  reaching  him,  but  recklessly,  or 
even  incautiously,  neglect  to  do  so,  the 
company  will  be  liable,  in  proporlion  to  its 
own  default  and  that  of  the  other  party. 
Savannah,  F.  &*  W.  R.  Co.  v.  Stewart,  71 
Ga.  427. 

00.  in  an  unconscious  condi- 
tion.— At  the  time  of  the  injury,  plaintiff 
was  lying  in  an  unconscious  condition  by 
the  side  of  defendant's  track,  and  while 
there  \:'as  run  over  by  a  train.  The  negli- 
gence was  claimed  to  consist  in  the  failure 
of  the  engineer  to  use  ordinary  diligence  in 
stopping  the  train  after  seeing  plaintiff. 
Held,  on  a  review  of  the  evidence,  that  there 
was  no  negligence  shown  on  the  part  of 
defendant  or  its  employes.  Williams  v. 
Southern  Pac.  R.  Co.,  28  Am.  «S-  Eng.  R. 
Cas.  578,  72  Cal.  120,  13  Pac.  Rep.  219. 

Where  a  party  is  injured  while  lying  on  a 
track  in  an  unconscious  condition,  in  the 
absence  of  proof  of  gross  negligence  on  the 
part  of  those  in  charge  of  the  train  injur- 
ing him  there  can  be  no  recovery,  whether 
such  unconsciousness  was  the  result  of  in- 
toxication, or  sickness,  or  some  other  un- 
controllable circumstance.  Missouri  Pae. 
R.  Co.  V.  Brmvn,  (Tex.)  jS  S.W.  Rep.  670.— 
Following  Internatio.ial  &  G.  N.  R.  Co.  v. 
Garcia,  75  Tex.  583,  13  S.  W.  Rep.  223. 


OOu.  Children.*  — A  company  it  not 
bound,  in  the  absence  of  a  statute,  to  fence 
its  road  so  as  to  keep  children  from  gettmg 
on  its  tracks.  A  company  does  not  owe  to 
a  child  seven  years  of  age  any  duty  that 
would  not  otherwise  exist.  Nolan  v.  New 
York,  N.  H.  &'  H.  R.  Co.,  25  Am.  &•  Eng. 
R.  Cas.  342,  53  Conn.  461,  4  ////.  J^ep.  106. 

A  boy,  aged  about  seven  years,  was  in- 
jured while  trying  to  climb  up  the  lad- 
der of  a  freight  car  that  was  moving  along 
a  public  street  in  a  city.  It  appeared  that 
the  train  was  not  being  run  at  an  unlawful 
rate  of  speed,  it  moving  not  faster  than  four 
miles  an  hour,  that  it  was  properly  manned, 
with  every  cmploy6  at  his  station,  and  that 
it  was  under  perfect  control,  and  being  run 
with  the  greatest  care  and  caution.  Held, 
that  the  company  was  not  liable.  Chicago, 
B.  &*  Q.  R.  Co.  V.  Stumps,  69  ///.  409. 

Where  a  car  was  left  on  a  grade  in  such  a 
position  that  when  the  brake  was  unfastened 
it  would  move  down  the  track  at  the  rate  of 
ten  miles  per  hour,  and  there  was  a  rule 
against  persons  entering  the  car  before  a 
certain  time,  the  company  was  guilty  of  neg- 
ligence in  not  locking  the  car  doors  and  in 
not  securing  the  brakes  so  that  they  could 
not  be  unfastened  by  a  boy  eight  years  of 
age.  Western  Md.  R.  Co.  v.  Herold,  74  Md. 
510,  22  Atl.  Rep.  323. 

A  company  is  not  liable  for  running  over 
a  child  who  is  using  the  track  as  a  play- 
ground, unless  the  act  was  done  maliciously 
or  with  gross  and  reckless  carelessness. 
Morrissey  v.  Eastern  R.  Co.,  126  Mass.  377. 
Wright  V.  Boston  &*  A.  R.  Co.,  28  Am.  6* 
Efig.  R.  Cas.  652,  142  Mass.  296,  7  A''.  E. 
Rep.  866. 

An  eight-year-old  boy  trespassing  on  the 
premises  of  a  company  got  on  the  step  of 
an  engine  and  was  ordered  off  by  a  fire- 
man, and  as  he  jumped  he  fell.  The  engine 
was  started  at  the  moment  and  the  tender 
passed  over  his  leg.  He  was  a  boy  of  more 
than  average  intelligence  and  had  been 
warned  against  going  on  the  premises  or 
riding  on  the  engine.  Held,  that  the  com- 
pany was  not  liable,  unless  it  should  appear 
that  those  in  charge  of  the  engine  knew  that 


*  Liability  for  injury  to  children  playing  on 
unguarded  turntables  and  at  other  dangerous 
places,  see  notes,  31  Au.  Rep.  206;  59  Id.  23;  14 
L.  R.  A.  781;  31  Am.  &  Eng.  R.  Cas.  415;  37 
Id.  329,  ahstr. 

Negligence  of  parent,  see  note,  15  Am.  & 
Eng.  R.  Cas.  406. 


TRESPASSERS,  INJURIES    TO,  70,  71. 


1145 


pany  ii  not 
ute,  to  fence 
from  getting 
i  not  owe  to 
y  duty  that 
'olan  V.  New 
1m.  &*  Eng. 

Rep,  io6. 
:ars,  was  in- 
up  the  lad- 
oving  along 
ipeared  that 
an  unlawful 
er  than  four 
rly  manned, 
)n,  and  that 
i  being  run 
tion.  Held, 
e.  Chicago, 
I.  409. 

dc  in  such  a 
s  unfastened 
t  the  rate  of 

was  a  rule 
:ar  before  a 
uilty  of  neg- 
oors  and  in 
t  they  could 
;ht  years  of 
rold,  74  Md. 

unning  over 
:  as  a  play- 
maliciously 
:arelcssncss. 
)  Mass.  377. 
,  28  Am.  &* 
)6.  7  A^.  E. 

ising  on  the 
the  step  of 
'  by  a  fire- 
The  engine 
I  the  tender 
i)oy  of  more 
had  been 
premises  or 
It  the  com- 
ould  appear 
e  knew  that 


1  playing  on 
ir  dangerous 
59/rf.  23;  14 
Cas.  415;  37 

;,  15  Am.  & 


the  boy  was  in  the  way,  or  that  they  were 
reckless  or  negligent  in  the  management  of 
the  engine,  or  could  have  anticipated  the 
injury.  Chicago  &*  N.  W.  R.  Co.  v.  Smith, 
4  Am.  &*  Eng.  R.  Cas.  53$.  46  Mich.  ;o4. 

Where  a  child  about  seven  years  Oi'*  is 
injured  by  a  street-car,  not  from  any  athzi 
in  the  car,  nor  any  negligence  in  itit  n.an- 
agement,  but  from  the  sudden  and  unex- 
pected act  of  the  child  in  attempting  to 
mount  the  front  platform  while  the  driver, 
who  was  also  conductor,  is  on  the  rear  plat- 
form, the  company  is  not  liable.  Heston- 
vilU  Pass.  R.  Co.  v.  Connell,  88  Pa.  St.  520. 

A  boy  was  permitted  by  a  conductor  to 
ride  on  a  train  to  sell  newspapers,  in  viola- 
tion of  the  rules  of  the  company,  and  was 
killed  by  an  accident.  Held,  that  the  boy 
was  a  trespasser,  and  that  the  company  was 
not  liable.  Duff  v.  Allegheny  Valley  R, 
Co.,  2  Am.  &'  Eng.  R,  Cas.  i,  91  Pa.  St. 
458,  36  Am.  Rep.  675. 

A  child  of  tender  years  may  be  a  tres- 
passer and  be  subject  to  the  consequences 
of  his  trespass,  so  that  it  may  preclude  a 
recovery  for  an  injury  even  though  negli- 
gence be  not  imputable  to  him.  Rodgers  v. 
Lees,  140  Pa.  St.  475,  21  Atl.  Rep.  399, 

70.  Deuf  persons.*  — The  rule  that 
contributory  negligence  will  not  defeat  a 
recovery  for  personal  injuries  where  defend- 
ant's negligence  was  gross  and  wilful  ap- 
plies where  a  partially  deaf  person  walking 
on  the  track  in  the  daytime,  in  full  view  of 
the  enginemen  for  400  yards,  is  run  over 
by  defendant's  train,  no  signal,  by  whistle 
or  bell,  or  otherwise,  having  been  given,  and 
no  effort  made  to  check  speed  until  about 
the  time  of  the  disaster.  Central  R.  &*  B. 
Co.  V.  Denson,  84  Ga.  774, 11  S.  E.  Rep.  1039. 

Ordinarily  those  operating  a  train  have 
a  right  to  assume  that  one  walking  on  the 
track,  in  the  direction  the  train  is  going,  will 
step  from  the  track  in  time  to  avoid  injury, 
yet  if  the  person  on  the  track  be  deaf,  and  that 
fact  be  known  to  those  operating  the  train, 
they  cannot  act  on  such  assumption,  but 
they  are  then  required  to  use  such  diligence 
as  will  best  protect  him  from  injury.  Inter- 
national &*  G.  N.  R.  Co.  V.  Smith,  19  Am. 
&>  Eng.  R.  Cas.  21, 62  Tex.  252.— Followed 
IN  Gulf,  C.  &  S.  F.  R.  Co.  V.  Fossett,  66 
Tex.  338. 

A  company  is  not  liable  for  the  failure 
of  it.'  train   employes  to  stop  a  train  in 

*  Injury  to  deaf  persons,  see  note,  34  Am,  & 
Eng.  R.  Cas.  38. 


time  to  avoid  killing  a  person  seen  on  the 
tracic,  there  being  nothing  to  indicate  that 
he  was  not  able  to  take  care  of  himself, 
and  where  they  made  every  effort  to  stop 
the  train  after  it  was  apparent  that  he  would 
not  leave  the  track.  Artusy  v.  Missouri 
Pac.  R.  Co.,  37  Am.  &*  Eng.  R.  Cas.  a88.  73 
Tex.  191,  II  S.  W.  Rep.  177.— Reviewing 
Galveston  City  R.  Co.  v.  Hewitt,  67  Tex. 
475  ;  Houston  &  T.  C.  R.  Co.  v.  Boozer,  70 
Tex.  531. 

71.  Deaf  *jiutes.  —  It  appeared  that 
deceased  was  a  full-grown  man,  but  was 
deaf  and  dumb,  and  at  the  time  of  the  acci- 
dent was  walking  on  the  tracK  in  the  same 
direction  as  the  train  moved  that  killed  him. 
The  court  instructed  the  jury  that  if  those 
in  charge  of '  lie  train  saw  plaintiff's  intestate 
in  time,  by  the  use  of  the  means  in  their 
power,  to  have  saved  his  life  by  checkini; 
the  train  or  by  blowing  the  whistle  and 
ringing  the  bell,  and  they  wilfully  failed  to 
use  such  means  to  avoid  the  killing,  they 
must  find  for  plaintiff.  Held,  erroneous. 
The  jury  should  have  been  told  that  defend- 
ant's  employes,  being  ignorant  of  the  physi- 
cal infirmity  of  deceased,  had  a  right  to 
believe  that  he  would  do  what  a  man  pos- 
sessed of  his  ordinary  faculties  would  have 
done,  viz.,  step  of!  the  track  in  time  to 
avoid  danger,  when  he  heard  the  approach- 
ing train,  and  that  hence  they  were  not  in 
fault  for  failing  to  stop  the  train.  Louisville 
&*  N.  R.  Co.  V.  Cooper,  (Ky.)  6  Am.  &*  Eng. 
R.  Cas.  5. 

Semble,  that  if  knowledge  of  the  physical 
infirmities  of  the  deceased  had  been  brought 
home  to  said  employes  they  would  have 
been  held  to  a  stricter  measure  of  duty,  and 
that  a  failure  on  their  part  to  discharge  that 
duty  would  have  constituted  either  absolute 
intentional  killing  or  wilful  neglect,  for 
which  the  company  would  have  been  held 
liable.  Louisville  6-  N.  R.  Co.  v.  Cooper, 
(A5'.)  6  Am.  &>  Eng.  R.  Cas.  5. 

If  an  engineer,  on  observing  a  person  on 
the  track,  at  a  place  where  he  has  no  right 
to  be,  rings  the  bell  and  blows  the  whistle, 
80  that  any  ordinary  person  must  be  aware 
of  the  approach  of  the  train,  he  has  a  right 
to  expect  the  trespasser  to  leave  the  track ; 
and  the  company  will  not  be  liable  for  his 
death,  even  though  the  engineer  when  he 
first  saw  him  had  time  to  stop  the  train, 
and  the  trespasser  was  a  deaf  mute.  Nich" 
ols  V.  Louisville  &>  N.  R.  Co.,  (Ky.)  34  Am. 
&*  Efig.  R.  Cas.  37,  6  S.  W.  Rep.  339. 


I 


i  1 


1U« 


TRESPASSERS,  INJURIES  TO,  72.  78. 


A  deaf-mute  slave,  who  was  walking  on  a 
track  from  the  direction  of  an  approaching 
train,  was  killed.  It  did  not  appear  that  the 
engineer  knew  of  the  slave's  infirmity,  but 
it  did  appear  that  the  usual  warning  was 
given  by  the  st-am  whistle  for  one  endowed 
with  hearing  to  have  made  his  escape. 
Hfld,  that  the  company  was  not  liable  for 
the  loss.  Pooli  V.  North  Carolina  N.  Co., 
%JoHts  (JV.  Car.)  340. 

72.  IdiotH.  —  An  idiot,  under  the  in- 
fluence of  liquor,  crossed  a  railroad  track 
at  a  usual  place  of  crossing  in  or  near  a 
populous  town,  and  was  struck  and  injured 
by  a  passenger  train  running  at  about  the 
usual  speed  of  twenty  or  twenty-five  miles 
an  hour.  Owing  to  standing  cars  upon  an- 
other railroad,  he  could  not  have  seen  the 
train  until  witiiin  six  feet  of  the  track  he 
was  crossing.  It  did  not  appear  how  near 
the  train  was  to  him,  nor  whether  the  engi- 
neer saw  or  could  have  seen  him  in  time  to 
have  stopped.  HeM,  that  plaintiff  could 
not  recover  in  any  view  of  the  case.  Daify 
V.  Richmond  &*  D.  R.  Co., 42  Am.  &*Eng.  R. 
Cas.  124,  106  N.  Car.  301, 11  S.  E.  Rep.  320. 

Even  if  the  engineer  had  seen  him  cross- 
ing the  track  in  time  to  stop  the  train,  and 
did  not  know  of  his  infirmity,  he  was  justi- 
fied in  assuming  that  he  would  get  off  in 
time  to  avert  danger,  and  he  was  not  bound 
to  check  the  speed  of  the  train.  If  the 
engineer  carelessly  refrained  from  checking 
speed,  when  he  might,  without  injury  to  the 
passengers,  have  averted  the  injury,  he  was 
guilty  of  negligence  even  though  the  party 
injured  was  guilty  of  contributory  negli- 
gence. Daily  v.  Richmond  &*  D.  R.  Co, ,  42 
Am.  6-  Enj[.  R.  Cas.  124, 106  A'.  Car.  301, 1 1 
S.  E.  Rip.  320. 

73.  Intoxicated  persons.*— A  com- 
pany owes  no  higher  duty  to  a  drunken 
trespasser  than  to  a  sober  one,  when  it  is 
without  the  means  of  determining  whether 
he  is  sober  or  drunk.  Columbus  &*  W.  R. 
Co.  v.  Wood,  86  Ala.  164,  5  So.  Rep.  463  — 
Following  Memphis  &  C.  R.  Co.  v.  Wo- 
mack,  84  Ala.  149. 

If  a  person  in  a  state  of  helpless  intoxica- 
tion lies  down  on  a  railroad  track,  the  com- 

*  Liability  of  company  for  injuries  to  drunken 
persons,  children,  and  others  trespassing  on 
track,  see  note,  38  Am.  Rep  637. 

Duty  of  company  to  drunken  trespasser  on 
track,  see  note,  19  Am.  &  Eng  R.  Cas.  336. 

Liability  of  company  for  killing  or  injurinii' 
intoxicated  persons  on  track,  see  37  Am.  &  Evi. 
R.  Cas.  ^\2,abslr. 


pany  will  not  be  justified  in  running  a  train 
over  him  if  it  can  be  avoided  in  the  exer- 
cise of  reasonable  care  after  the  person  is 
discovered  in  his  exposed  position.  Will- 
iams  V.  Southern  Pac.  R.  Co.,  (Cal.)  9  Pac. 
Rep.  I  $2.  Williams  y.  Southern  Pac.  R.  Co., 
(Cal.)  II  Pac.  Rep.  849. 

If  a  person  in  a  drunken,  helpless  con- 
dition appears  on  a  track,  and  the  tram 
employes  discover  him  in  time  to  stop  the 
train  before  reaching  him,  but  recklessly  or 
incautiously  fnil  to  do  so,  the  company  is 
liable  for  the  resulting  injury ;  but  where 
the  party  does  not  appear  to  be  drunk  and 
continues  on  the  track  until  he  approaches 
a  trestle,  where  he  is  struck,  a  verdict  against 
the  company  cannot  be  sustained,  where  it 
appears  that  the  engineer  gave  warning  and 
made  every  effort  to  stop  the  tram.  Savan- 
nah, F.  &*W.  R.  Co.  v.  Stewart,  71  Ga.  427. 

Where  the  injury  is  the  result  of  intoxi- 
cation or  drunkenness  the  rule  seems  to  be 
that  the  company  is  not  liable,  unless  the 
injury  was  wanton  or  wilful.  Illinois  C.  R. 
Co.  V.  Hutchinson,  47  ///.  408.  Mulherrin 
V.  Delaware,  L.  f^  W.  R,  Co,,  St  Pa.  St.  366. 
Herring  v.  Wilmington  &•  R.  R.  Co.,  10 
/red.  (N.  Car.)  402,  51  Am.  Dec.  395. 

If  one  who  has  rendered  himself  incapa- 
ble of  self-protection  by  reason  of  a  volun- 
tary use  of  intoxicants  enters  a  train  without 
right,  and  without  the  knowledge  of  the  con- 
ductor, the  company  does  not  owe  to  him 
any  duty  beyond  ordinary  care  to  protect 
him  from  injury  while  upon  the  train,  and  to 
leave  him  in  reasonably  safe  condition,  vol- 
untary intoxication  being  no  excuse  for  a 
failure  on  the  part  of  the  traveler  to  exer- 
cise the  duty  of  self-protection.  Missouri 
Pac.  R.  Co.  v  Evans,  37  Am.  &•  Eng.  R.  Cas. 
144.  71  Tex.  361,  9  S.  W.  Rep.  325.— Re- 
viewing Houston  &  T.  C.  R.  Co.  v.  Dc- 
vainy,  63  Tex.  172;  International  &  G.  N. 
R.  Co.  V.  Gilbert,  64  Tex.  540 ;  Texas  &  P. 
R.  Co.  V.  Cole,  66  Tex.  562. 

Defendant  company's  night  trackwalker 
found  plaintiff's  intestate  asleep  on  a  track, 
and  aroused  him  and  warned  him  that  a 
train  was  approaching.  He  raised  himself 
on  his  elbow  and  signified  his  comprehen- 
sion of  the  situation,  and  not  appearing  to 
be  disabled  by  intoxication,  the  trackwalker 
passed  on  ;  but  intestate  did  not  leave  the 
track  and  was  killed.  Held,  that  the  com- 
pany was  not  liable.  The  trackwalker  had 
a  right  to  presume  that  intestate  would  take 
measures   to    protect    himself.       Virginia 


TRESPASSERS,  INJURIES  TO,  74-78. 


1147 


inning  a  train 
I  in  the  exer- 
the  person  is 
■ition.  IVi/l- 
{Cai.)g  Pac. 
n  Pac.  R.  Co., 

helpless  coii- 
and  the  train 
le  to  stop  the 
i  recklessly  or 
le  company  is 
y ;  but  where 
be  drunk  and 
he  approaches 
ircrdict  against 
ined.  where  it 
e  warning  and 

tram.  SavitH' 
\rt,  71  Ga.  427. 
suit  of  intoxi- 
le  seems  to  be 
lie.  unless  tlie 

Illinois  C.  a: 
I.     Mulherrin 

Z\Pa.Sl.z(>(>. 
A\  R.  Co.,  10 
^ec.  395- 
imself  iiicn|)a- 
lon  of  a  voliin- 
a  train  without 
dgeof  the  con- 
st owe  to  him 
;are  to  protect 
he  train,  and  to 
condition,  vol- 

0  excuse  for  a 
aveler  to  cxer- 
ion.  Missouri 
&*  Eng.  R.  Cas. 
Rep.  325— Re- 
R.  Co.  V,  De- 
:ional  &  G.  N. 
0 ;  Texas  &  P. 

ht  trackwalker 
:ep  on  a  track, 
ed  him  that  a 
raised  himself 
lis  comprehen- 
)t  appearing  to 
he  trackwalker 

1  not  leave  the 
that  the  com- 
ackwalker  had 
:ate  would  take 
5lf.       Virginia 


Midland  R.  Co.  v.  Boswtll,  82  Va.  933,  7  5'. 
E.  Rtp.  383. 
74.  Person!  asleep  upon  track.— 

It  appeared  that  a  slave  was  asleep  on  the 
track,  that  the  cars  were  going  with  their 
usual  speed  and  at  the  usual  hour,  and  that 
the  engineer,  when  within  a  short  distance 
of  the  slave,  attempted  to  stop  the  engine 
by  letting  off  the  steam  and  reverting  the 
wheels,  but  was  unable  to  do  so  in  time. 
Held,  that  there  was  not  such  negligence  as 
to  sul)jcct  the  company  to  damages.  Her- 
ring V.  Wilmington  si*  R.  R.  Co.,  10  Ired. 
(N.  Car.)  402.— Quoted  in  Case  of  Atlan- 
tic, M.  &  O.  R.  Co.,  4  Hughes  (U.  S.)  157. 
Revikwkd  in  Jones  v.  North  Carolina  R. 
Co.,  67  N.  Car.  122;  Richardson  v.  Wil- 
mington &  M.  R.  Co.,  8  Rich.  (So.  Car.)  120, 

Plaintifl's  slave,  a  lad  eight  years  of  age, 
was  asleep  on  defendant's  track,  and  might 
have  been  seen  from  the  locomotive  one 
quarter  of  a  mile  as  it  approached  him  ;  but 
upon  the  supposition  that  the  object  in  the 
road  was  the  coat  of  one  of  the  laborers,  no 
signal  was  given,  and  no  effort  was  made  to 
slacken  the  speed  of  the  cars,  whereby  the 
child  was  overrun  and  killed.  Held,  that 
the  company  was  liable  for  the  value  of  the 
slave.  East  Tenn.  &»  G.  R.  Co.  v.  St.  John, 
5  Sneed  ( 7V;/«.)  524. 

If  a  person  lying  asleep  upon  a  track  is 
seen  by  those  managing  an  approaching 
train  in  time,  and  they  are  aware  of  his  dan- 
ger, and  by  ordinary  care  they  can  avoid 
injury,  they  are  bound  to  do  so.  Rozwa- 
dos/skie  v.  International  &*  G.  N.  R.  Co.,  I 
Tex.  Civ.  App.  487,  20  S.  IV.  Rep.  872. 

f.  Duty  to  Keep  Premises  in  Safe 
Condition. 

76.  Generally.*— The  owner  of  private 
grounds  is  under  no  obligation  to  keep  them 
in  a  safe  condition  for  the  benefit  of  idlers, 
bare  licensees,  or  others  who  come  upon 
them,  not  by  invitation,  either  express  or 
implied,  but  for  their  own  convenience  or 
pleasure.  Union  S.  V.  &*  T.  Co.  v.  Rourkt, 
10  ///.  App.  474.— Quoting  Sweeny  v.  Old 
Colony  &  N.  R.  Co.,  10  Allen  (Mass.)  368; 
Hardcasile  v.  South  Yorkshire  R.  &  R.  D. 
Co..  4  H.  &  N.  67. 

A  landowner  is  under  no  duty  to  a  mere 
trespasser  to  keep  his  premises  safe ;  and 

*  Failure  to  fence  track  as  alTecting  trespassers, 
see  note,  31  Am.  &  Eng.  R.  Cas.  423. 


the  fact  that  the  trespasser  is  an  infant  docs 
not  raise  a  duty.  Frost  v.  Eastern  R.  Co.,  64 
N.  H.  ajo,  4  A'.  Etig.  Rep,  527,  9  Atl.  Rep. 
790. —  Approved  in  Daniels  v.  New  York 
&  N.  E.  R.  Co.,  I  $4  Mass.  349.  Disap- 
proved IN  Rarrett  v.  Southern  Pac.  Co.,  48 
Am.  &  Eng.  R.  Cas.  532,  91  Cal.  396. 

70.  IliHk  of  danger  assumed  by 
trcspasHcr.  —  A  trespasser  ordinarily  as- 
sumes all  risk  of  danger  from  ihe  condition 
of  the  premises,  and  in  order  to  recover 
must  show  that  an  injury  was  wantonly 
inflicted,  or  that  the  owner,  being  present, 
might  have  prevented  the  injury  by  the  ex- 
ercise of  reasordble  care  after  discovering 
the  danger.  Frost  v.  Eastern  R.  Co.,  64  Pf. 
H.  220,  4  A'.  Eng.  Rep,  527,  9  Atl.  Rep.  790. 
—  Not  followed  in  Sioux  City  &  P.  R. 
Co.  V.  Stout,  17  Wall.  (U.  S.)  657. 

77.  Dangerous  buildings.— Plaintifl, 
without  invitation,  and  as  a  mere  intruder, 
entered  upon  the  uninclosed  premises  of 
defendant  company,  upon  which  was  a 
building  in  a  state  of  visible  decay.  While 
there  a  storm  blew  a  fragment  from  the 
building  against  plaintiil,  injuring  him. 
The  building  had  once  been  used  as  a 
freight  house,  but  had  been  long  since 
abandoned  so  far  as  any  public  use  was 
concerned,  and  was  not  situated  so  as  to 
endanger  travel  on  any  public  highway. 
Held,  that  plaintiff  could  not  recover.  Lary 
V.  Cleveland.  C,  C.  &*  I.  R.  Co.,  3  Am.  &* 
Eng.  R.  Cas.  498,  78  Ind.  323,  41  Am.  Rep. 
572.  —  Distinguishing  Lafayette  &  I.  R. 
Co.  V.  Adams,  26  Ind.  76 ;  Indianapolis  & 
C.  R.  Co.  V.  McClure,  26  Ind.  370;  Gray  v. 
Harris,  107  Mass.  492 ;  Isabel  v.  Hannibal 
&  St.  J.  R.  Co.,  60  Mo.  475.  Quoting 
Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Bing- 
ham, 29  Ohio  St.  364;  Sweeny  *.  Old 
Colony  &  N.  R.  Co.,  10  Allen  (Mass.)  368. 
Reviewing  Hounsell  v.  Smyth,  7  C.   B. 

N.  S.  73«- 

Plaintiff's  intestate  was  in  the  employ  oi 
defendant  company,  and  was  injured  by  the 
falling  of  a  sliding  door  in  its  storehouse. 
Held,  that  if  he  was  in  the  building  as  a 
trespasser  or  by  sufferance,  no  duty  with 
respect  to  him  rested  on  the  master,  except 
to  refrain  from  acts  wilfully  injurious ;  he 
assumed  all  the  ordinary  risks  incident  to 
the  character  of  the  place,  and  is  without 
remedy.  Collyer  v.  Pennsylvania  R.  Co.,  49 
N.J.L.  i,t),(>Atl.Rep.t,n. 

78.  Dangerous  machinery  and  In- 
struments. —  The  possessor  of  lands  or 


WT 


1148 


TRESPASSERS,  INJURIES   TO,  79-81. 


n-LL 


tenements  is  not  at  liberty  to  plant  in  them 
dangerous  instruments  which  may  seriously 
injure  trespassers;  but  he  is  under  no  duty 
to  keep  his  premises  in  a  safe  condition  for 
others  than  those  whom  he  invites,  and 
therefore  he  is  not  liable  to  trespassers  for 
injuries  they  may  receive  from  defects,  not 
amounting  to  traps,  in  such  premises. 
O'Connor  v.  Illinois  C.  R.  Co.,  44  La.  Ann, 
339,  10  So.  Rep.  678.— Approving  Coombs 
V.  New  Bedford  Cordage  Co.,  102  Mass. 
572;  Illinois  C.  R.  Co.  v.  Carraher,  47  111. 
333  ;  Central  Branch  U.  P.  R.  Co.  v.  Henigh, 
23  Kan.  347. 

The  owner  of  land  or  other  property  may 
properly  inclose  dangerous  machinery  upon 
iiis  own  premises,  such  machinery  being  an 
essential  industrial  factor ;  and  a  trespasser 
who  meddles  with  such  machinery  cannot 
recover  damages  for  the  injuries  that  his 
meddlesomeness  has  brought  upon  him. 
O'Connor  v.  Illinois  C.  R.  Co.,  44  La.  Ann. 
339,  10  So.  Rep.  678.  —  Distinguishing 
Westerfield  v.  Levis,  43  La.  Ann.  64 ;  Sioux 
City  &  P.  R.  Co.  V.  Stout,  17  Wall.  (U. 
S.)  657. 

70.  Torpedoes  on  track.  —  A  com- 
pany is  not  liable  for  the  death  of  a  man 
caused  by  the  explosion  of  a  torpedo  with 
which  he  meddled  while  walking  on  the 
track,  and  which  had  been  placed  there 
by  the  company  as  a  danger  signal  to  ap- 
proaching trains.  Carter  v.  Columbia  &* 
G.  R.  Co.,  IS  Am,  &»  £ng.  R.  Cas.  414,  19 
So.  Car.  20,  45  Am.  Rep.  754.— Distin- 
guished IN  Harriman  v.  Pittsburgh,  C. 
&  St.  L.  R.  Co.,  32  Am.  &  Eng.  R.  Cas. 
37,  45  Ohio  St.  II.  Quoted  in  Darwin 
V.  Charlotte,  C.  &  A.  R.  Co..  23  So.  Car. 
53 1  >  55  Am.  Rep.  32 ;  Guess  v.  South 
Carolina  R.  Co.,  30  So.  Car.  163,  9  S.  E. 
Rep.  18. 

80.  Pool  of  water.  —  Where  a  com- 
pany builds  its  road  across  a  short  bend  in 
a  stream  on  an  embankment,  so  as  to  cause 
a  deep  pool  of  water  to  form,  it  is  not 
guilty  of  negligence  in  not  fencing  it  or 
taking  other  means  to  prevent  persons  from 
falling  into  the  water,  where  it  had  neither 
invited  nor  forbidden  persons  to  walk  on 
the  embankment.  So  held,  where  a  little 
girl  fell  from  a  path  across  the  embankment 
to  the  water  and  was  drowned.  Hooper  v. 
Johnstown,  G.  6-  K.  H.  R.  Co.,  35  N.  Y.  S. 
R  503,  13  N.  Y.Supp.  151,59  ffun  121; 
affirmed  in  128  N.  Y  613,  mem.,  38  N.  Y, 
S.  R.  1013,  a8  A^.  E.  Rep.  252. 


2.  Trespassers  on  Trains,* 
a.  In  General. 

81.  Coiupauy's  care  and  liability. 

— Ill  the  absence  of  wantonness  or  wilfuU 
ness  on  the  part  of  the  servants  of  a  com- 
pany, it  is  not  liable  for  injury  to  trespassers, 
whether  in  its  train  or  on  its  track.  Rich- 
mond &^  D.  R.  Co.  V.  Burnsed,  70  Miss.  437, 
n  So.  Aep.  958.— Reviewing  Vicksbur<j  & 
M.  R.  Co.  V.  Pliillips,  64  Miss.  693. 

Even  if  a  person  knows  he  is  on  a  trai.i 
in  violation  of  the  company's  rules,  still, 
being  there  with  the  consent  of  the  master 
of  the  irain,  the  company  owes  him  at  least 
ordinary  care,  and  for  a  breach  of  that  duty 
it  is  liable  in  damages.  Whitehead  v.  St, 
Louis,  I.  M,  &•  S.  R.  Co.,  39  Am.  &*  Eng. 
R.  Cas.  410,  99  Mo.  263.  II  5.   W.  Rep.  751. 

Defendants  ware  engaged  under  a  con- 
tract with  the  aqueduct  commissioners  of  i> 
city  in  excavating  a  tunnel,  which  required 
them  to  furnish  facilities  for  inspecting  the 
work.  Plaintiff's  intestate  was  a  civil  engi- 
neer in  the  employ  of  the  commissioners, 
and  it  was  his  duty  to  inspect  the  work. 
Defendants  employed  dump  cars  for  the 
purpose  of  removing  material,  which  cars 
were  run  on  a  track  in  the  shaft,  being 
hauled  out  by  a  cable  and  returned  by 
gravitation,  their  speed  being  regulated  by 
a  brake.  The  intestate  was  riding  on  tlie 
outside  of  one  of  the  cars  down  the  shaft, 
and  through  the  neglect  of  a  brukcman  was 
thrown  from  the  car  and  killed.  It  appeared 
that  there  was  plenty  of  room  to  go  up  and 
down  the  shaft  on  foot,  and  there  was 
nothing  to  prevent  one  from  doing  it ;  but 
the  intestate  had  been  accustomed  to  ride 
down  with  the  consent  of  the  brakeman, 
but  it  did  not  appear  that  he  had  authority 
to  give  such  consent,  or  that  defendants 
knew  it.  Held,  that  defendants  were  under 
no  obligation  to  transport  the  intestate  or 
to  allow  him  to  ride  on  the  cars,  and  if  he 
did  ride,  to  manage  the  car  so  as  not  to 
injure  him ;  that  no  license  could  be  im- 
plied by  the  former  use  of  the  cars,  and  the 
decedent  took  upon  himself  the  risk  both 
of  the  condition  of  the  car  and  the  care  of 
the  brakeman,  and  a  nonsuit  should  have 
been  awarded.  Morris  v.  Brown,  in  N, 
Y,  318.  18  N.  E.  Rep.  722,  19  A^  Y.  S.  R. 
355 ;  reversing  4  A^.  Y.  S.  R.  832.  —  Re- 
viewing Sutton  V.  New  York  C.  &  H.  R. 

■  ■■  '  ■         ■    —     ■  —  ■  ^— 1^— / 

*  See  also  ante,  1 2-19.  t 


I 


TRESPASSERS,  INJURIES  TO,  82-8ff. 


1149 


atns.^ 


id  liability. 

less  or  wilful« 
ints  of  a  com- 
to  trespassers, 
track.  Jiich- 
r,  70  Miss.  437. 
\  Vicksbur^  & 
.693. 

;  is  on  a  trail 
^s  rules,  still, 
of  the  master 
:s  him  at  least 
h  of  that  duty 
Mtehead  v.  St. 
)  Am.  &*  Eng. 

W.  Rep.  7SI. 
under  a  con- 
nissljners  of  s> 
irhif.h  required 
inspecting  the 
as  a  civil  engi* 
;ommissioners, 
)cct  the  work. 
»  cars   for  the 
al,  which  cars 
e  shaft,  being 
1   returned   by 
g  regulated  by 
riding  on  tiie 
own  the  shaft, 
brakcman  was 
d.   It  appeared 
n  to  go  up  and 
nd    there    was 
I  doing  it ;  but 
stomed  to  ride 
the  brakeman, 
:  had  authority 
lat  defendant! 
nts  were  under 
he  intestate  or 
cars,  and  if  he 
r  so  as  not  to 
could  be  im- 
le  cars,  and  the 
[  the  risk  both 
and  the  care  of 
lit  should  have 
Brown,   in  N. 
19  N.  V.  S.  R. 

R.  832. —  Re- 
ork  C.  &  H.  R. 

-10. 


R.  Co.,  66  N.  Y.  243  ;  Gillshannon  v.  Stony 
Brook  R.  Corp.,  10  Cush.  (Mass.)  228  ;  Eaton 
V.  Delaware,  L.  &  W.  R.  Co..  57  N.  Y.  382. 

A  company  owes  no  duty  to  an  intruder 
upon  its  train  engaged  otherwise  than  in 
transportation  of  passengers,  except  to  re- 
frain from  wilfully,  wantonly,  or  intention- 
ally injuring  him.  It  is  not  liable  for  injury 
resulting  mcidentally  to  such  intruder  from 
the  mistake,  inadvertence,  or  negligence  of 
its  servants  in  operating  such  train.  Illinois 
C.  R.  Co.  V.  Meacham,  91  Tenn.  428,  19  S. 
W,  Rep.  232. 

82. confined  to  wilfulness  and 

wantonness. — If  a  person,  while  attempt- 
ing to  obtain  a  free  ride,  without  the  consent 
of  the  company  or  its  agents,  receives  a  per- 
sonal injury,  he  cannot  recover  therefor, 
unless  the  company  was  guilty  of  such  gross 
negligeiice  as  amounts  to  wilful  misconduct. 
Chicago,  B.  <&-  Q.  R.  Co.  v.  Mehlsack,  41 
Am.  Sf*  Eng.  R.  Cas.  60,  131  ///.  61,  22  N. 
E.  Rep.  812;  reversing  33  ///.  App.  221. — 
Distinguished  in  North  Chicago  St.  R. 
Co.  V.  Williams,  140  III.  275.  Quoted  in 
Chicago,  B.  &  Q.  R.  Co.  v.  Mehlsack,  44  111. 
App.  124. 

Only  necessary  force  can  be  used  to  remove 
trespassers  from  trains.  If  the  employes 
act  in  a  wilful,  wanton, or  malicious  manner, 
and  injury  results,  the  company  is  liable. 
Kansas  City,  Ft.  S.  u*  G.  R.  Co.  v.  Kelly,  36 
Kan.  655, :  4  Pac.  Rep.  172.  Atchison,  T.  &• 
S.  F.  R.  Co.  v.  Gants,  34  Am.  &*  Eng.  R. 
Cas.  290,  38  f^an.  608, 17  Pac.  Rep.  54. 

Where  a  person  clandestinely  enters  a  bos 
car  of  a  freight  train  to  beat  his  way  over 
the  road,  he  becomes  a  trespasser,  and  the 
only  duty  the  company  owes  to  him  is  i?ot 
to  injure  him  wantonly.  Hindryxy.  Kansas 
City,  Ft.  S.  Sf  G.  R.  Co.,  45  Kan.  377,  2$ 
Pac.  Rep.  893. 

Although  a  person  riding  unlawfully  on  a 
freight  car  is  a  trespasser,  the  servants  of 
the  railroad  have  no  right  recklessly  and 
wantonly  to  inflict  an  injury  upon  him. 
Planz  V.  Boston  &*  A.  R.  Co.,  157  Mass.  377, 
32  ;v:  E.  Rep.  356. 

The  only  duty  the  co.npany  owes  to  a 
trespasser  stealing  a  ride  is  not  wilfully  or 
recklessly  to  injure  him  after  discovering 
him  on  the  train.  Farber  v.  Missouri  Pac. 
R.  Co.,  116  Mo.  81,  22  S.  W.  Rep.  631. 

83. distinguished  from  liabil- 
ity to  passenger. — While  a  company  can- 
not be  said  to  owe  no  duty  to  one  who  un- 
lawfully intrudes  himself  upon  its  engines  or 


cars,  it  does  not  owe  to  him  the  same  duty 
that  it  owes  to  a  passenger  or  even  to  one 
of  its  employes.  Darwin  v.  Charlotte,  C. 
&>  A.  R.  Co.,  23  So.  Car.  531,  55  Am.  Rep. 
32.—  Limiting  Duff  v.  Allegheny  Valley  R. 
Co.,  91  Pa.  St.  458,  36  Am.  Rep.  675 ; 
Cauley  V.  Pittsburgh,  C.  &  St.  L.  R.  Co..  95 
Pa.  St.  398,  40  Am.  Rep.  664. 

84.  Person  riding  on  pilot  of  en- 
gine. —  When  a  trespasser  places  himself 
upon  the  pilot  of  an  engine,  and  is  permitted 
by  the  engineer,  in  violation  of  the  rules  of 
the  company,  to  remain  there,  and  is  killed, 
the  company  is  not  liable.  Darwin  v. 
Charlotte,  C.  &•  A.  R.  Co.,  23  So.  Car.  531, 
55  Am.  Rep.  32.— Quoting  Flower  v.  Penn- 
sylvania R.  Co.,  69  Pa.  St.  210,  8  Am.  Rep. 
251;  New  Orleans,  J.  &  G.  N.  R.  Co.  v. 
Harrison,  48  Miss.  112,  12  Am.  Rep.  356. 
Reviewing  Eaton  v.  Delaware,  L.  &  W.  R. 
Co.,  57  N.  Y.  382,  15  Am.  Rep.  513;  Ever- 
hart  V.  Terre  Haute  &  I.  R.  Co.,  78  Ind. 
292,  41  Am.  Rep.  567. 

Plaintiff's  intestate  got  on  an  engine  and 
went  with  the  engineer  down  the  road  for 
a  supply  of  water.  On  the  return  he  was 
riding  on  the  pilot,  when  it  collided  with 
a  car  and  he  was  killed.  The  evidence 
showed  that  he  had  no  duty  to  perform  on 
the  engine,  and  was  merely  riding  at  the 
sufferance  of  the  engineer.  Held,  that  an 
action  could  not  be  maintained  against  the 
company.  Darwin  v.  Charlotte,  C.  &*  A. 
R.  Co.,  23  So.  Car.  531,  55  Am.  Rep.  yx.— 
Quoting  Carter  v.  Columbia  &  G.  R.  Co., 
19  So.  Car.  20. 

b.  Ejection  from  Trains. 

85.  Bight  to  eject  *  —  Manner  of 
ejection.  —  Where  a  boy  trespasses  on  a 
train  the  conductor  only  has  a  right  to  re- 
move him  in  a  prudent  manner,  so  as  to  not 
endanger  his  personal  safety.  If  the  con- 
ductor does  not  act  prudently,  and  the  boy 
is  injured,  the  company  cannot  avoid  liabil- 
ity on  the  ground  that  the  boy  was  also  in 
the  wrong  in  entering  the  car.  Kline  v. 
Central  Pac.  R.  Co.,  3/  Cal.  400.  —  Ap- 
proved IN  Perkins  v.  Missouri,  K.  &  T.  R. 
Co.,  55  Mo.  201.    Quoted  in  Louisville,  C. 

*  Expulsion  of  trespassers  on  trains,  see  note, 
15  Am.  &  Eng.  R.  Cas.  424- 

Rights  of  trespasser  on  train.  Ejecting  {-as- 
senger,  see  note,  3  L.  R.  A.  733. 

Right  of  company  to  remove  trespasser  (ton) 
train,  see  note,  $  L.  R.  A,  830, 


mnr 


1150 


TRESPASSERS,  INJURIES  TO,  86-88. 


^il 


&  L.  R.  Co.  V.  Sullivan,  i6  Am.  &  Eng.  R. 
Cas.  390,  81  Ky.  624. 

The  removal  of  trespassers  from  cars  it 
within  the  implied  authority  of  the  com- 
pany's servants  on  the  train,  and  the  fact 
that  they  acted  illegally  in  removing  a  party 
while  the  train  was  in  motion  does  not  ex- 
onerate the  company.  Hoffman  v.  New 
York  C.  &'  H.  R.  R.  Co.,  4  Am.  &•  Eng.  R. 
Cas.  537, 87  N.  V.  25,  41  Am.  Rep.  337 ;  a/- 
firming  14  /.  &•  5.  526.  —  APPLIED  IN 
Corbett  v.  Twenty-third  St.  R.  Co.,  42  Hun 
587.  4  N.  Y.  S.  R.  535. 

Where  the  conductor  of  a  train,  acting  in 
the  line  of  his  duty,  ejects  from  the  platform 
of  a  car  a  person  who  has  no  right  thereou) 
the  company  is  liable  if  he  has  done  it  in  a 
careless,  negligent,  or  reckless  manner,  but 
not  if  he  muliciously  ejects  the  trespasser 
therefrom.  Pennsylvania  Co.  v.  Toomey,  i 
Atn.  &*  Eng.  R.  Cas.  461,  91  Pa.  St.  256. 

80.  Ejection  fk-oin  train  in  motion.* 
— The  jury  found  that  plaintiff  got  upon  one 
of  defendant's  trains  while  drunk,  and  not 
as  a  passenger,  and  was  violently  ejected 
therefrom  by  the  conductor  while  the  train 
was  in  motion,  whereby  he  was  injured. 
The  verdict  was  for  plaintiff.  HeM,  that 
there  was  evidence  to  support  the  verdict 
and  that  the  same  would  not  be  disturbed. 
louisvi/fe,  N.  A.  &*  C.  R.  Co.  v.  Dunkin,  15 
Am.  6-  Eng,  R.  Cas.  422,  92  Ind.  601. 

Removing  a  trespasser  from  a  train  while 
it  is  in  motion,  but  moving  very  slowly,  is 
not  negligence  or  wantonness //r  j«.  South' 
*rn  Kan.  R.  Co.  v.  Sanford,  47  Am.  &*  Eng. 
R.  Cas.  615.  45  Kan.  372,  25  Pac.  Rep.  891. 

In  such  cases  the  question  of  negligence 
or  wantonness  is  for  the  jury.  Southern 
Kan.  R.  Co.  v.  Sanford,  47  Am.  6*  Eng.  R. 
Cas.  615,  4S  Kan.  372,  25  Pac.  Rep.  891. 

The  complaint  alleged  that  plaintiff  was 
a  passenger  on  defendant's  train,  and  that 
the  agents  of  defendant  in  charge  of  the 
train  wilfully,  maliciously,  forcibly,  and 
violently,  and  while  the  train  was  running 
at  a  rapid  rate  of  speed,  kicked  and  ejected 
him  from  the  steps  of  a  car,  whereby  he  was 
injured.  Held,  that  the  cause  of  action  was 
one  in  tort,  the  gravamen  of  the  complaint 
being  an  intentional  and  personal  assault 
and  battery.  The  fact  that  the  evidence 
tended  to  show  that  plaintiff  was  a  tres- 
passer and    not   a    passenger   constituted 

*  Liability  of  company  for  forcing  trespassers 
off  moving  train,  see  note,  31  L.  R.  A.  354. 


neither  a  failure  of  proof  nor  a  material 
variance.  Mykleby  v.  Chicago,  St.  P.,  M.&» 
O.  R.  Co.,  34  Am,  6-  Eng.  R.  Cas.  387,  39 
Minn.  54.  38  N.  W.  Rep.  763. 

A  boy  eleven  years  old  climbed  on  a 
freight  train,  and  not  getting  off  upon  being 
told  to  do  so,  while  the  train  was  moving 
at  the  rate  of  ten  miles  per  hour,  a  brakeman 
threw  coal  at  him,  and  when  he  was  about 
to  jump  hit  him  on  the  head  with  a  large 
lump,  causing  him  to  fall,  and  to  be  caught 
under  the  wheels  of  the  train.  Held,  that 
the  company  was  liable.  Lang  v.  New  York, 
L.  E.  &»  W.  R.  Co.,  22  N.  Y.  S.  R.  no,  4 
N.  Y.  Supp.  565,  51  Hun  603;  affirmed  in 
123  N.  Y.  656,  mem.,  25  A';  E.  Rep.  955. 

A  boy  thirteen  years  old  climbed  on  the 
front  platform  of  the  caboose  of  a  freight 
train,  and  while  standing  there  a  stream  of 
water  was  turned  on  him,  and  he  either 
jumped  or  fell  from  the  train  and  was  so 
injured  as  to  necessitate  amputation  of  a 
limb.  Held,  that  the  boy  being  a  trespasser, 
the  company's  employes  had  a  right  to  re- 
move him,  but  they  had  no  right  to  subject 
him  to  unnecessary  danger.  Clark  v.  New 
York,  L.  E.  6-  W.  R.  Co.,  2  N.  Y.  S.  R.  249, 
40  Hun  605;  affirmed  in  113  A''.  Y.  670, 
mem.,  2i  N.  E.  Rep.  11 16. 

87. runniuir  at  dangerous  rate 

of  speed.  —  The  servants  of  a  company, 
put  in  charge  of  a  switching  engine  used  to 
place  cars,  have  implied  authority  from  the 
company  to  remove  trespassers  from  the 
engine,  and  if  in  doing  so  the  trespasser  be 
injured,  not  in  consequence  of  negligence 
merely,  but  because  of  the  reckless  manner 
of  doing  it,  evincing  an  indifTerence  to  con- 
sequences, the  company  is  liable.  Carter  v. 
Louisville,  N.  A.  &*  C.  R.  Co.,  22  Am.  &» 
Eng.  R.  Cas.  360,  98  Ind.  552,  49  Am.  Rep. 
780.— Distinguishing  Towanda  Coal  Co. 
V.  Heeman,  86  Pa.  St.  418 ;  Marion  v.  Clii> 
cago,  R.  I.  &  P.  R.  Co.,  59  Iowa  428.  44 
Am.  Rep.  687.  Not  following  Isaacs 
V.  Third  Ave,  R.  Co.,  47  N.  Y.  122,  7  Am. 
Rep.  418.  Quoting  Jeffersonville  R.  Co. 
V.  Rogers,  38  Ind.  116,  10  Am.  Rep.  103. 
Reconciling  HoflFman  v.  New  York  C.  & 
H.  R.  R.  Co..  87  N.  Y.  25.  41  Am.  Rep. 
337;  Benton  v.  Chicago,  R.  I.  &  P.  R.  Co., 
5 J  Iowa  496;  Cauley  w.  Pittsburgh,  C.  &  St. 
L.  R.  Co..  4  Am.  &  Eng.  R.  Cas.  533.98  Pa. 
St.  498.  Reviewing  Roundsv.  Delaware. ' 
&  W.  R.  Co..  64  N.  Y.  129.  21  Am.  Rep.  597. 

88.  TliroDvn  fVoni  top  of  niovlng 
cnr. — Plaintif!  sued  for  an  injury  by  being 


FT 


TRESPASSERS,  INJURIES   TO,  80-92. 


1151 


lor  a  material 
.St.P..M.&' 
K.  Cas.  387,  39 

climbed  on  a 
off  upon  being 
n  was  moving 
ur,  abrakeman 
I  he  was  about 
d  with  a  large 
d  to  be  caught 
in.  HeM,  that 
5f  V,  New  York, 
7.  S.  V?.  110,4 
>3 ;  affirmed  in 

'■'  ^>A  9SS. 
:limbed  on  the 
se  of  a  freight 
ere  a  stream  of 
and  he  either 
lin  and  was  so 
nputation  of  a 
ng  a  trespasser, 
d  a  right  to  re- 
right  to  subject 
Clark  V.  New 
V.  Y.  S.  R.  249, 
\l  N.   Y.  670, 

ngerous  rate 

of  a  company, 
engine  used  to 
liority  from  the 
ssers  from  the 
le  trespasser  be 
!  of  negligence 
eckless  manner 
(Terence  to  con- 
able.  Carter  v. 
Co.,  22  Am.  &* 
2,  49  Am.  Rep. 
anda  Coal  Co. 
Marion  v.  Chi- 
9  Iowa  428,  44 
LOWING  Isaacs 
I.  Y.  122,  7  Am. 
sonville  R.  Co. 
Am.  Rep.  103. 
New  York  C.  & 
,  41  Am.  Rep. 
I.  &  P.  R.  Co., 
iburgh,  C.  &  St. 
Cas.  533, 98  Pa. 
J  V.  Delaware. ' 
I  Am.  Rep.  597, 
»p  of  niovinff 
mjury  by  being 


thrown  from  the  top  of  a  moving  freight 
train.  Plaintiff's  evidence  showed  that  he 
was  riding  on  top  of  a  car  without  having 
paid  fare,  and  that.he  was  ordered  by  a  per- 
son carrying  a  lantern,  whom  he  assumed 
to  be  a  brakeman,  to  get  off ;  that  plaintiff 
replied  that  he  would  get  off  if  the  train 
would  stop,  but  thereupon  the  person  seized 
him  and  threw  him  off.  Held,  that  an  order 
directing  a  verdict  for  defendant  was  proper. 
There  should  have  been  some  evidence 
showing  the  scope  of  the  alleged  brake- 
man's  authority.  Corcoran  v.  Concord  &* 
M.  R.  Co.,  56  Fed.  Rep.  1014. 

80.  flection  second,  time  without 
unnecessary  force.  —  Where  a  party  is 
once  ejected  from  a  train,  he  should  submit, 
and  rely  on  recovering  damages,  if  the  ejec- 
tion was  unlawful,  and  there  can  be  no  re- 
covery where  he  is  ejected  a  second  time 
without  the  use  of  unnecessary  force  and 
suffers  an  injury  therefrom.  North  Chicago 
St.  R.  Co.  V.  Olds,  40  ///.  App.  421.— Dis- 
tinguishing Chicago.  M.  &  St.  P.  R.  Co. 
V.  West,  125  111.  320;  North  Chicago  City 
R.  Co.  V.  Gastka,  27  111.  App.  518  ;  Chicago 
City  R.  Co.  V.  Pelietier,  134  111.  120. 

00.  At  what  place  may  bn  ejected. 
—  The  conductor  and  trainmen  have  the 
right  to  eject  a  trespasser  from  the  trait:  at 
any  suitable  place,  but  in  doing  so  they 
should  not  use  unnecessary  force  or  excess- 
ive  violence;  if,  however,  such  a  person 
forcibly  resists  ejection,  he  cannot  recover 
for  the  force  used  in  overcoming  his  resist- 
ance, where  such  force  is  without  intention 
on  the  part  of  the  conductor  or  trainmen 
to  commit  unnecessary  injury.  In  such  a 
case  the  company  is  only  liable  for  such 
unnecessary  force  or  excessive  violence  as  is 
wilful,  wanton,  or  malicious.  Atchison,  T. 
&*  S.  F.  R.  Co.  V.  Cants,  34  Am.  &*  Eng.  R. 
Cas.  290,  38  Kan.  608,  17  Pac.  Rrp.  54. 

m.  COHTBaUTOBT  HEOIIOEHGE  OF 
TSEBPASBEB. 

91.  Generally.*  —  A  person  who  un- 
necessarily walks  upon  a  railroad  track,  tak- 
ing no  precautions  to  guard  against  danger, 
is  guilty  of  gross  negligence,  and  cannot 
recover   unless  the   injury  was   wantonly 

•  Contributory  negligence  of  trespassers  on 
track,  see  notes,  19  Am.  ft  Eng.  R.  Cas.  41 ;  45 
Id.  S9  :  48  Id.  586. 

As  to  how  far  injured  party  being  a  trespasser 
constitutes  contributory  negligence,  see  note,  55 
Am.  Dec  674. 


or  recklessly  inflicted  by  the  defendant. 
(Walker  and  Dickey,  JJ.,  dissenting.)  ///i- 
not's  C.  R.  Co.  V.  Hetherington,  83  ///.  510. — 
Distinguishing  Indianapolis  &  St.  L.  R. 
Co.  V.  Galbreath,  63  111.  436.  —  Not  fol- 
lowed IN  Cook  V.  Central  R.  &  B.  Co.,  67 
Ala.  533.  Quoted  in  Lake  Shore  &  M.  S. 
R.  Co.  V.  Clemens,  $  111.  App.  77  ;  Chicago 
W.  D.  R.  Co.  V.  Klaubler,  9  111.  App.  613  : 
Lake  Erie  &  W.  R.  Co.  v.  Zofhnger,  10  III. 
App.  2$2.  Reviewed  in  Wabash,  St.  L. 
&  P.  R.  Co.  V.  Thompson,  10  III.  App.  271. 

It  is  not  contributory  negligence, /^r  se. 
for  a  person  receiving  an  injury  from  the 
negligence  of  a  company  to  be  on  the  track 
at  a  place  where  he  has  no  right  to  be;  and 
he  may  be  guilty  of  such  negligence  though 
he  be  at  a  place  on  the  railroad  where  he 
may  lawfully  be,  as  at  a  crossing.  If  in 
either  situation  the  person  neglect  to  use 
ordinary  and  reasonable  care,  considering 
the  time,  place,  and  circumstances,  to  avoid 
the  injury,  he  is  guilty  of  contributory  neg- 
ligence. Vicksburg  &*  M.  R.  Co.  v.  Mc- 
Gowan,  62  Miss,  682. 

Plaintiff,  a  man  in  full  possession  of  his 
senses,  chose  to  walk  on  a  track  between 
the  rails,  when  he  knew  cars  were  constantly 
passing,  as  it  was  his  habit  to  walk  on  the 
track  in  going  to  and  from  his  work.  Held, 
that  he  could  not  recover  for  injuries  caused 
by  being  struck  by  the  tender  of  a  locomo- 
tive. O'Donnell  v.  Missouri  Pac.  R.  Co.,  7 
Mo.  App.  190.— Applying  Michigan  C.  R. 
Co.  V.  Campau,  35  Mich.  468.  Distin- 
guishing Frick  V.  St.  Louis,  K.  C.  4  N.  R. 
Co.,  5  Mo.  App.  435 ;  Isabel  v,  Hannibal  & 
St.  J.  R.  Co.,  66  Mo.  475. 

Railroad  companies  are  bound  to  exer- 
cise their  dangerous  business  with  due  care 
to  avoid  injuries  to  others,  even  as  to  a 
trespasser,  but  if  the  injured  party  has  by 
his  own  negligence  contributed  to  the  in- 
jury, he  cannot  recover  damages.  Inter- 
national 4*  G.  N.  R.  Co.  V.  Jordan,  10 
Am.  &*  Eng.  R.  Cas.  301,  i  Tex.  App.  {Civ. 
Cas.)  494. 

OiS.  Care  required  of  trespasser — 
Degree.— Because  one  is  unlawfully  on  a 
track  the  trainmen  are  not  authorized  to 
run  him  down  ;  but  he  being  on  private 
property,  on  a  track  which  is  used  for  a  pur- 
pose which  is  dangerous  to  human  life,  well 
known  to  him  ;  being  in  a  place  where  he 
ought  not  to  be,  he  is  bound  to  use  ever/ 
precaution,  every  diligence,  every  care, 
against  the  possibility  or  probability  of  any 


1153 


TRESPASSERS,  INJURIES   TO,  03,  94. 


danger  which  might  happen  to  him  there. 
FinlaysoH  v.  Chicago,  B.  &*  Q.  R.  Co.,  i  Dill. 
{U.S.)  11% 

Where  one  chooses  to  walk  on  a  track 
for  his  own  personal  convenience,  without 
regard  to  constantly  moving  trains,  the  com- 
pany has  a  right  to  suppose  the  track  free, 
and  pursue  its  ordinary  course  of  business. 
Central  Trust  Co.  v.  Wabash,  St.  L.  &*  P. 
R.  Co.,  26  Fed.  Rep.  896. 

Where  a  person  not  an  employe,  without 
permission  of  a  company  and  against  its 
will  and  without  its  knowledge,  goes  into  a 
yard  covered  and  interlaced  by  tracks,  which 
are  being  used  in  switching,  drilling,  and 
changing  cars,  such  person  is  bound  to  use 
diligence  commensurate  with  the  peril  in 
which  he  has  placed  himself ;  and  if  he  fails 
to  do  this,  he  cannot  recover  for  any  injury 
that  he  may  sustain  from  the  runnmg  of 
engines  and  cars.  Rome  R.  Co.  v.  Tolbert, 
8s  Ga,  447,  \\  S.  E.  Rep.  849. 

A  person  walking  upon  a  track,  though 
near  a  public  crossing,  must  use  that  de- 
gree of  care  to  protect  himself  from  danger 
which  any  prudent  man  uses  under  similar 
perilous  circumstances.  Georgia  R.  &•  B. 
Co.  v.  Daniel,  89  Ga.  463,  15  5.  £".  Rep.  538. 

A  party  trespassing  upon  grounds  where 
he  has  no  right  to  be  is  held  to  the  exercise 
of  a  higher  degree  of  care  and  vigilance  for 
his  own  safety  than  would  be  exacted  of 
him  if  he  were  there  in  the  exercise  of  a 
legal  right.  Lake  Shore  &*  M.  S.  R.  Co.  v. 
Blanchard,  i  $  ///.  App.  582. 

Trespassers  on  the  yards  of  a  company 
which  by  law  are  not  required  to  be  fenced 
are  charged  with  the  danger  necessarily  in- 
cident to  the  place,  ind  are  required  to 
exercise  the  greatesiic  prudence  and  care. 
Houston  &•  T.  C.  R.  Co.  v.  Booser,  2  Tex. 
Unrep.  Cas.  453. 

03.  Proximate  cause.  —  Leaving  a 
span  of  horses  unhitched  in  close  proximity 
to  a  railroad,  at  a  time  when  a  train  usually 
passes,  is  negligence ;  and  if  the  owner 
afterwards,  when  the  train  arrives,  and  when 
the  horses  have  moved  to  the  track,  at- 
tempts tu  rescue  them,  and  is  injured,  he  is 
guilty  of  additional  negligence,  which  proxi- 
mately contributes  to  his  injury,  and  he 
cannot  recover  damages.  Deville  v.  South' 
ern  Pac.  R.  Co.,  50  Cal.  383,  12  Am.  Ry, 
Rep.  180.  —  Followed  in  Fernandes  v. 
Sacramento  City  R.  Co.,  52  Cal.  45.  Quoted 
IN  Louisville  &  N.  R.  Co.  v.  Eves,  i  Ind. 
App.  224. 


The  mere  fact  that  one  is  nominally  tre>> 
passing  upon  railroad  premises  at  the  time 
of  his  injury  will  not  bar  a  recovery,  if  his 
trespass  does  not  involve  negligence  on  his 
part  which  substantially  contributes  to  the 
injury.  Daley  v.  Norwich  &•  W.  R.  Co.,  26 
Conn.  591.— Distinguished  in  Higley  v. 
Gilmer,  3  Mont.  90. 

A  person  injured  by  a  train  cannot  re- 
cover therefor  where  the  direct  and  im- 
mediate cause  of  the  accident  is  his  own 
stumbling  and  falling  in  the  way  of  the 
train.  Barkley  v.  Missouri  Pac,  R.  Co.,  96 
Mo.  367,  9  S.  W.  Rep.  793. 

If,  after  plaintiff's  intestate  went  upon 
the  trestle,  defendant's  servant  could,  by 
proper  watchfulness,  have  discovered  his 
danger  in  time  to  avert  it,  without  jeop- 
ardy to  the  persons  or  property  on  the  train, 
and  neglected  to  do  so,  the  negligence  of 
the  two  was  not  concurrent  or  contempo- 
raneous. Clark  V.  Wilmington  &>  W.  R. 
Co.,  48  Am.  &>  Eng. R.  Cas.  546, 109  N.  Car. 
430,  14  S.  E.  Rep.  43. 

94.  Staucliiig  on  track.  —  One  who 
stands  on  a  track  on  a  narrow  space  between 
two  stationary  cars,  talking  with  a  person 
on  one  of  the  cars,  cannot  recover  for  an 
injury  caused  by  the  other  car  moving 
against  her  in  an  effort  to  couple  it,  where 
there  is  nothing  to  show  negligence  on  the 
part  of  the  engineer,  or  that  he  or  other 
employes  knew  that  plaintifl  was  on  the 
track,  or  could  have  been  teen  by  them. 
East  Tenn.,  V.  «S-  G.  R.  Co.  v.  King,  31 
Am.  <S-  Eng.  R.  Cas.  385,  8:  Ala.  177,  2  So. 
Rep.  152. 

One  is  bound  to  know  that  standing  or 
walking  upon  a  track  is  attended  witn 
danger ;  and  that  wliatever  privilege  he  was, 
by  implied  license,  permitted  to  enjoy,  in 
so  using  the  track,  was  a  privilege  to  be  ex- 
ercised at  his  own  risk,  so  far,  at  least,  as  to 
require  him  to  exercise  it  with  great  care. 
Donaldson  v.  Milwaukee  &*  St,  P.  R.  Co.,  21 
Minn.  293,  20  Am.  Ry.  Rep.  15.— Followed 
IN  Brown  v.  Milwaukee  &  St.  P.  R.  Co.,  22 
Minn.  165 ;  Smith  v.  Minneapolis  &  St.  L. 
R.  Co.,  26  Minn.  419;  Rheiner  v.  Chicago, 
St.  P.,  M.  &  O.  R.  Co.,  36  Minn.  170. 

New  Jersey  Act  of  1869  (Rev.  p.  920,  §  67), 
providing  that  if  any  person  be  injured  by 
any  engine  or  car  while  standing  on  a 
railroad  such  person  shall  be  deemed  to 
have  contributed  to  the  Injury  sustained,  ap- 
plies to  side  or  drilling  tracks  as  well  as  to 
mai  n  tracks.    Diebold  v.  Pennsylvania  R.  Co., 


is  nominally  tres* 

mises  at  the  time 

a  recovery,  if  his 

negligence  on  his 

contributes  to  the 

/'  6-  IV.  Jt.  Co..  26 

lED  IN  Higiey  v. 

train  cannot  re- 
e  direct  and  im- 
cident  is  his  own 

the  way  of  the 
tri  Pac.  R.  Co.,  96 

estate  went  upon 
ervant  could,  by 
'^e  discovered  his 
it,  without  jeop- 
perty  on  the  train, 
the  negligence  of 
ent  or  contempo- 
ington  &»  IV.  R. 
s.  546, 109  A^.  Car. 

ack.  —  One  who 
ow  space  between 
ig  with  a  person 
)t  recover  for  an 
her  car    moving 
)  couple  it,  where 
legiigence  on  the 
:hat  he  or  other 
ntiff  was  on  the 
11  seen  by  them. 
Co.  V.   I^ing,  31 
I:  Aia.  177,  2  So. 

;hat  standing  or 

attended  witn 
privilege  he  was. 
ed  to  enjoy,  in 
ivilege  to  be  ex- 
ir,  at  least,  as  to 
eith  great  care. 
5-/.  P.  R.  Co.,  21 

S-— Followed 
t.  P.  R.  Co.,  22 
apolis  &  St.  L. 
ler  V.  Chicago, 
linn.  170. 
2V.  p.  920,  §  67), 

be  injured  by 
itanding    on  a 

be  deemed  to 
|r  sustained,  ap- 
es as  well  as  to 
^ylvania  R.  Co., 


TRESPASSERS,  INJURIES   TO,  'J5-»8. 


1153 


50  N./.  L.  478,  12  Ctnt.  Rep.  799,  \\Atl. 
Rtp.  576. 

Where  an  engineer  sees  on  the  track,  in 
front  of  the  engine  which  he  is  moving,  a 
person  walking  or  standing  whom  he  does 
not  know  at  all  or  who  is  known  by  him  to 
be  in  full  possession  of  his  senses  and  facul- 
ties, the  former  is  justified  in  assuming,  up 
to  the  last  moment,  that  the  latter  will  step 
oil  the  track  in  time  to  avoid  injury,  and  if 
such  person  is  injured  the  law  imputes  it  to 
his  own  negligence  and  holds  the  company 
blameless.  H^h  v.  Carolina  C.  R.  Co.,  112 
N.  Car.  385,  17  5.  E.  Rep.  79.  — DISTIN- 
GUISHING Deans  v.  Wilmington  &  W.  R. 
Co.,  107  N.  Car.  686;  Bullock  v.  Wilming- 
ton &  W.  R.  Co.,  105  N.  ^  •.  180;  Clark  v. 
Wilmington  &  W.  R.  Co.,  109  N.  Car.  430. 
Following  McAdoo  v.  Richmond  &  D.  R. 
Co.,  105  N.  Car.  140. 

00.  Standingr  near  track.  —  A  man 
in  the  possession  of  his  physical  and  mental 
powers  cannot  recover  against  a  company 
for  injuries  caused  while  leaving  a  track, 
where  he  was  walking  as  a  trespasser,  and 
standing  within  a  few  feet  of  the  track,  by 
reason  of  hot  water  being  thrown  from  the 
engine  on  him,  where  it  appears  that  he  saw 
the  train  coming  and  knew  that  the  engine 
was  discharging  water,  and  where  the  en- 
gineer testifies  that  it  was  necessary  to  dis- 
charge the  water  and  steam,  and  that  it  was 
done  on  this  occasion  without  any  knowl- 
edge that  the  plaintiff  was  standing  near 
the  track.  St.  Louis,  A.  &•  T.  R.  Co.  v. 
Sharp,  3  Tex.  App.  (Ct^.  Cas.)  394.  —  Dis- 
tinguishing Gulf,  C.  &  S.  F.  R.  Co.  V. 
Evansich,  61  Tex.  3 ;  Galveston,  H.  &  H.  R. 
Co.  V.  Moore,  59  Tex.  64. 

06.  Walkingr  on  track.*— A  tres- 
passer walking  on  a  track  in  a  short  curve, 
where  he  could  not  be  seen  in  time  to  stop 
an  approaching  train,  is  guilty  of  contribu- 
tory negligence ;  and  the  fact  that  he  was 
intoxicated  does  not  relieve  him  of  the 
charge,  when  it  was  not  known  to  the  per- 
sons in  charge  of  the  train.  Memphis  &*  C. 
R.  Co.  v.  Womack,  37  Am.  &*  Eng.  R.  Cas. 
308,  84  Ala,  149, 4  So.  Rep,  618.— FOLLOWED 
IN  Columbus  &  W.  R.  Co.  v.  Wood,  86 
Ala.  164. 

Plaintiff  started  with  her  husband  in  a 
city  to  go  to  a  depot,  but  instead  of  taking 
the  streets  to  the  place,  walked  down  the 

*  Contributory  negligence  of  persons  walking 
on  track,  see  note,  15  Am.  &  Eng.  R.  Cas.  414. 
,      7  D.  R.  D.— 73 


railroad  right  of  way,  and,  while  on  the 
track,  was  run  over  by  a  freight  car  which 
had  made  a  flying  switch.  It  appeared  that 
the  public  generally  used  these  tracks,  or 
the  space  between  them,  as  a  footpath,  with- 
out objection.  HelJ,  that  the  risk  was  vol- 
untarily assumed  and  the  company  was  not 
liable.  Grethen  v.  Chicago,  M.  5-  St.  P.  R. 
Co.,  19  Am.  &>  Eng.  R.  Cas.  342,  22  Fetf. 
Rep.  609.— Following  Gaynor  v.  Old  Col- 
ony &  N.  R.  Co.,  100  Mass.  208. — Applied 
IN  Elliot  v.  Chicago,  M.  &  St.  P.  R.  Co.,  38 
Am.  &  Eng.  R.  Cas.  62,  5  Dak.  523,  3  L.  R. 
A.  363,  41  N.  W.  Rep.  758. 

It  is  negligence  for  a  person  to  walk  upon 
a  track,  whether  laid  in  a  street  or  upon  an 
open  field,  and  he  who  deliberately  does  so 
will  be  presumed  to  assume  the  risk  of  the 
peril  he  may  encounter.  Illinois  C.  R.  Co. 
V.  Nail,  72  ///.  222.— Quoted  in  McAllister 
V.  Burlington  &  N.  W.  R.  Co.,  19  Am.  & 
Eng.  R.  Cas.  108,  64  Iowa  ^g^.— Illinois  C. 
R.  Co.  v.  Beard,  49  ///.  App.  232. 

Walking  upon  a  track  does  not,  per  se, 
constitute  such  contributory  negligence  as 
will  bar  a  recovery  for  injuries  sustained 
from  the  negligence  of  the  servants  of  the 
road.  Troy  v.  Cape  Fear  5-  Y.  V.  R.  Co., 
34  Am,  &*  Eng.  R.  Cas.  13,  99  A''.  Car.  298,  6 
S.  E.  Rep.  77,  6  Am.  St.  Rep.  521.— Distin- 
guishing State  V.  Baltimore  &  P.  R.  Co., 
15  Am.  &  Eng.  R.  Cas.  409,  58  Md.  482. 
Quoting  Byrne  v.  New  York  C.  &  H.  R. 
R.  Co.,  104  N.  Y.  362,  58  Am.  Rep.  512.— 
Distinguished  in  Emry  v.  Raleigh  &G.  R. 
Co.,  109  N.  Car.  589. 

07.  Crippled  person  walkiugf  on 
track. — One  cannot  recover  damages  for 
an  injury  which  by  the  exercise  of  reason- 
able care  he  might  have  avoided.  So  when 
it  is  uncontroverted  that  plaintiff,  a  cripple 
with  a  stiff  leg,  left  a  safe  path  along  the 
sidewalk  of  a  street,  to  pass  hastily,  in  the 
night-time  and  without  a  light,  diagonally 
over  a  railroad  crossing,  the  condition  of 
which  he  did  not  know,  and  stumbled  along 
the  rails  and  planking,  fell,  and  was  injured, 
it  is  error  to  refuse  binding  instructions 
that  the  verdict  should  be  for  defendant. 
Delaware,  L.  <S-  W.  R.  Co.  v.  Cadow,  35 
Am.  6*  Eng  R.  Cas.  405, 120  Pa.  St.  559, 14 
Atl.  Rep.  450. 

08.  Walking  between  tracks.  — 
Plaintiff,  in  going  to  the  post  office,  which 
was  situated  northeast  of  plaintiff's  house, 
and  on  the  east  side  of  a  railroad,  instead  of 
going  east  over  the  tracks  at  the  street 


w 


1154 


TRESPASSERS,  INJURIES   TO,  90-101. 


'li 


croMing  to  the  street  on  which  the  post 
office  was  situated  and  then  going  north- 
ward to  his  destination,  his  most  direct 
route,  went  east  to  a  point  on  defendant's 
right  of  way,  and  then  turned  northward, 
walking  in  a  space  eight  feet  wide  between 
tracks.  Just  before  plaintiff  crossed  the 
west  track  of  the  two  an  engine  and  caboose 
passed  him  going  south,  and  soon  after 
turning  north  an  engine  and  stock  train 
went  south  on  the  east  and  main  track. 
The  distance  from  plaintiff  to  where  the 
west  track  joined  the  main  track  was  only 
looo  feet,  and  plaintiff  knew  that  on  aecount 
of  the  stock  train  the  engine  and  caboose 
could  only  go  that  distance.  He  looked 
back  once,  and  saw  the  engine  and  caboose 
still  going  south.  The  engine,  however, 
after  drawing  the  caboose  south  on  the 
west  track  for  a  short  distance,  backed  on 
the  same  track,  finally  giving  the  caboose  a 
"  kick,"  propelling  it  northward  at  a  speed 
of  ten  or  twelve  miles  an  hour,  and  it  struck 
p-aintiff.  HM,  that,  conceding  defend- 
ant to  have  been  negligent,  plaintiff  was 
guilty  of  contributory  negligence,  and  was 
not  entitled  to  recover.  Richards  v.  Chi- 
cago,  St.  P.  &*  K.  C.  R.  Co.,  4$  Am.  &»  Eng. 
R.  Cas.  54.  81  Iowa  426,  47  N.  IV.  Rep.  63.— 
Following  McAllister  v.  Burlington  &  N. 
W.  R.  Co.,  64  Iowa  398. 

00.  Walking  alongside  and  near 
track.— Although  plaintiff,  while  walking 
along  a  path  near  a  track,  on  the  company's 
right  of  way,  was  a  trespasser,  this  did  not 
constitute  contributory  negligence,  if  she 
made  due  use  of  her  senses  to  discover  an 
approaching  train,  and,  on  its  nearer  ap- 
proach, used  proper  exertions  to  place  her- 
sei!  beyond  peril.  Alabama  G.  S.  R.  Co.  v. 
Chatman,  31  Am.  &'  Eng.  R.  Cas.  394,  80 
■V/i.  615,  2  So.  Rep.  738. 

plaintiff's  own  testimony  showed  that  he 
'  .-':  walking  by  the  side  of  defendant's 
^n  ;k,  and  sufficiently  removed  from  it  to 
be  out  of  danger  from  passing  trains,  but 
was  struck  by  a  beam  or  tie  which  lay 
across  a  flat  car.  A  "  fair  "  was  in  progress, 
which  brought  an  unusual  crowd  to  the 
place,  and  plaintiff  was  on  a  footp.ith  where 
pedestrians  were  accustomed  to  pass.  Held, 
that  the  question  of  care  was  properly  sub- 
mitted to  the  jury.  /Kansas  Pac.  R,  Co.  v. 
Ward,  4  Colo.  30. 

100.  Walking  on  railroad  bridge. 
—  A  father  and  son  were  walking  on  a 
track,  and  as  they  had  about  crossed  an  un- 


planked  bridge  a  train  approached  them. 
The  son  stepped  from  the  track,  but  per- 
ceiving his  father  still  on  the  track,  stepped 
back  and  took  his  father  off,  but  was  him- 
self struck  before  he  could  again  get  off  the 
track.  The  train  was  not  moving  more 
than  four  miles  per  hour,  and  after  the 
danger  was  discovered  the  trainmen  re- 
versed the  engine  and  made  every  effort  to 
stop  it.  Held,  that  there  was  nothing  to 
show  a  want  of  care  on  the  part  of  the  com- 
pany, and  it  was  not  liable.  Evansville  &* 
C.  R.  Co.  V.  Hiatt,  17  Ind.  102.— Distin- 
guished IN  Pennsylvania  Co.  v.  Langden- 
dorf,  48  Ohio  St.  316.  Explained  in 
Donahoe  v.  Wabash,  St.  L.  &  P.  R.  Co.,  83 
Mo.  560,  53  Am.  Rep.  594. 

101. or  on  trestle.  — A  person 

who  undertakes  to  walk  across  a  railroad 
trestle  of  considerable  length  and  height, 
knowing  that  a  train  is  due,  is  guilty  of 
negligence  which  contributes  to  any  injury 
he  may  receive,  which  will  bar  a  recovery, 
unless  it  is  shown  that  the  injury  was  wan- 
ton, reckless,  or  intentional.  Bentley  v. 
Georgia  Pac.  R.  Co.,  86  Ala.  484,  6  So.  Rep. 
37.  Central  R.  6*  B.  Co.  v.  Vaughan,  93 
Ala,  209,  9  So.  Rep.  468. 

Where  plaintiff's  own  evidence  shows  that 
he  was  injured  while  walking  over  defend- 
ant's trestle  spanning  a  ravine,  it  is  sufficient 
to  show  negligence  proximately  contribut- 
ing to  the  injury,  and  a  nonsuit  is  properly 
granted.  Tennenbrock  v.  South  Pac.  Coast  R. 
Co.,  6  Am,  &>  Etig.  R.  Cat.  8,  59  Cal,  269.- 
Approved  in  Toomey  v.  Southern  Pac. 
R.  Co.,  86  Cal.  374. 

It  was  gross  negligence  on  the  part  of  two 
women  to  attempt  to  walk  upon  a  trestle 
1 50  yards  long  and  from  1 2  to  1 5  feet  high, 
near  the  time  when  a  train  was  due,  it  fur- 
ther appearing  that  the  servants  of  the 
company  did  all  that  was  possible  to  be 
done  after  they  discovered  the  women  on 
the  trestle.  Phillips  v.  East  Tentt.,  V.  &*  G. 
R.  Co.,  48  Am.  &*  Eng.  R.  Cas.  61,  87  Ga. 
272,  iiS.E.  Rep.  644. 

Plaintiff,  a  woman,  ventured  to  cross  a 
trestle  about  200  feet  long,  and  from  which 
a  train  could  be  seen  for  more  than  a  mile. 
When  about  half  across  she  heard  an  ap- 
proaching train,  and  instead  of  leaping  off, 
which  was  not  perilous,  she  ran  along  the 
trestle  and  was  overtaken  and  struck  just  as 
she  reached  its  end.  The  engineer  testified 
that  as  soon  as  he  discovered  her  he  sounded 
the  whistle  and  used  every  means  to  stop 


TRESPASSERS,  INJURIES  TO,  102-104. 


fl65 


oached  them. 
rack,  but  per- 
track,  stepped 

but  was  him- 
;ain  get  off  the 
moving  more 
and  after  the 

trainmen  re- 
svery  effort  to 
as  nothing  to 
irt  of  the  com- 
EvansvilU  &* 

I02.— DlSTIN- 

3.  V,  Langden- 
XPLAINED    IN 

tP.  R.  Co.rSj 

5.  — A  person 
OSS  a  railroad 
;h  and  height, 
e,  is  guilty  of 
to  any  injury 
ar  a  recovery, 
ijury  was  wan- 
il.  BentUy  v. 
484,  6  So.  Rip, 
.  Vaughan,  93 

nee  shows  that 
;  over  defend- 
,  it  is  sufficient 
:ely  contribut- 
uit  is  properly 
\  Pac.  Coast  R. 
59  Cal,  269.- 
Southern  Pac. 

he  part  of  two 
upon  a  trestle 
>  15  feet  high, 
13  due,  it  fur- 
rvants  of  the 
possible  to  be 
he  women  on 
^enn.,  V.  S*  G. 
'as.  61,  87  Ga. 

ed  to  cross  a 
id  from  which 
s  than  a  mile, 
heard  an  ap- 
of  leaping  off, 
ran  along  the 
1  struck  just  as 
grineer  testified 
tier  he  sounded 
means  to  stop 


the  train.  Htld,  that  plaintiff  was  guilty  of 
contributory  negligence  and  not  entitled  to 
recover.  Louisville,  N,  0.  &>  T.  R.  Co.  v. 
Cooper,  68  Miss.  368,  8  So.  Rep.  747. 

102.  Ityiug  or  sittingr  on  track.— 
The  body  of  plaintiff's  intestate  was  found 
at  the  side  of  tiie  track  near  a  bridge  after 
a  night  train  had  passed.  There  was  no  di- 
rect evidence  as  to  how  he  was  killed,  but 
the  marks  on  his  body,  and  other  signs, 
tended  to  show  that  he  had  been  sitting  or 
lying  on  the  ends  of  the  ties  when  he  was 
struck  by  the  train.  Held,  that  the  neces- 
sary inference  was  that  his  own  carelessness 
was  the  proximate  cause  of  his  death.  Nor- 
wood V.  Raleigh  &*  G.  R.  Co.,  in  A^  Car. 
236,  16  S.E.  Rep.  4. 

Whether  intestate  was  a  trespasser  or  a 
licensee,  it  was  his  duty  to  keep  out  of  the 
way  of  a  passing  train,  and  his  failure  to  do 
so  would  be  considered  the  proximate  cause 
of  his  death,  in  the  absence  of  testimony 
tending  to  show  that  the  engineer  could,  by 
proper  watchfulness,  have  seen  him  lying 
apparently  insensible  on  the  track  or  in  peril 
upon  the  bridge  in  time  to  have  avoided  the 
injury  by  using  the  appliances  at  his  com- 
mand, and  without  jeopardy  to  persons  on 
the  train.  Norwood  v.  Raleigh  &*  G.  R.  Co., 
\i\  N.  Car.  236,  \tS.E.  Rep.  4, 

103.  Falling  asleep  upon  track.*— 
One  who  becomes  intoxicated  and  lies  down 
to  sleep  upon  a  track  is  guilty  of  such  gross 
negligence  as  to  preclude  a  recovery  for  in- 
juries sustained.  Williams  v.  Southern  Pac. 
R.  Co.,  {Cal.)  9  Pac.  Rep.  152. 

Where  a  slave  goes  to  sleep  on  a  track, 
and  is  run  over  and  killed,  the  slave's  negli- 
gence in  contributing  to  his  own  injury  is 
imputed  to  the  master,  who  is  prevented 
thereby  from  recovering  against  the  com- 
pany. Richardson  v.  Wilmington  &*  M.  R. 
Co.,  8  Rich.  (So.  Car.)  120. 

The  proximate  cause  of  the  slave's  death 
being  his  own  voluntary  imprudence,  de- 
fendant company  is  not  liable.  Richardson  v. 
Wilmington  &•  M.  R.  Co.,  8  Rich.  (So.  Car.) 
lao.— Applying  Felder  v.  Louisville,  C.  & 
C.  R.  Co.,  2  McMull.  403.  Reviewing  Her- 
ring V.  Wilmington  &  R.  R.  Co.,  10  Ired. 
(N.  Car.)  402.— Felder  v.  Louisville,  C.  &*  C. 
R.  Co.,  2  McMull.  {So.  Car.)  403.— Applied 
IN  Richardson  v.  Wilmington  &  M.  R.  Co., 
8  Rich.  120.  Reviewed  in  Zemp  v.  Wil- 
mington &  M.  R.  Co.,  9  Rich.  84. 

*  Falling  asleep  on  the  track  as  contributory 
negligence,  see  note,  15  Am.  &  Eng.  R.  Cas.  478. 


104.  Failure  to  heed  warnings  and 
signals.'*'— A  person  walking  upon  a  track, 
but  not  in  condition  to  be  aware  of  his  dan- 
ger, was  warned  by  a  friend  who  was  in  his 
company  that  a  train  was  approaching.  He 
failed,  however,  to  get  off  the  track,  where- 
upon the  friend  waved  his  hat  to  the  engi- 
neer to  stop.  As  soon  as  the  engineer  saw 
the  waving  he  blew  the  whistle  and  applied 
the  brakes.  The  train,  nevertheless,  ran  over 
decedent.  Held,  that  the  company  was  not 
in  fault,  and  that  decedent  had  been  guilty 
of  such  contributory  negligence  as  pre- 
cluded all  right  to  recover  damages  for  his 
death.  Louisville  &*  N.  R.  Co.  v.  Watkins, 
{Ky.)  12  Am.  &*  Eng.  R.  Cas.  89. 

In  such  case  plaintiff  could  not  avail  him- 
self of  a  failure  on  the  part  of  the  persons 
in  charge  of  the  train  to  put  down  brakes 
at  the  point  where  the  accident  occurred, 
which  was  on  a  descending  grade,  in  ac- 
cordance with  the  regulations  of  the  com- 
pany. Louisville  6-  N.  R.  Co.  v.  Watkins, 
{Ky.)  12  Am,  &*  Eng.  R.  Cas.  89. 

A  person  walking  on  a  track,  away  from 
any  public  crossing,  was  told  by  his  com- 
panion, who  heard  the  noise,  that  an  engine 
was  coming,  and  he  replied,  "  I  seen  a  train 
running  up  and  down  the  other  track  this 
evening,"  and  was  immediately  run  over  by 
the  engine  and  killed.  Held,  that  if  the 
deceased,  at  the  time  he  received  the  warn- 
ing from  his  companion,  could  have  left  the 
track,  and  had  sufficient  time  to  do  so,  and 
would  by  doing  so  have  escaped  injury,  then 
his  remaining  upon  the  track  after  such 
warning  was  such  a  want  of  due  care  and 
caution  on  his  part  as  to  debar  a  recovery, 
though  there  was  negligence  on  the  part  of 
defendant's  agents.  Baltimore  &•  0.  R.  Co. 
V.  State,  36  Md.  366. 

Where  a  person  partially  intoxicated  leaves 
a  safe  path  and  walks  on  the  track  in  a  care- 
less, indifferent  manner,  without  using  his 
ears  or  eyes,  and  without  heeding  the  ring- 
ing of  the  train  bell  and  warnings  of  others, 
he  is  guilty  of  gro.ss  neglifi^ence  which  will 
prevent  any  recovery  :  >r  nis  death  caused 
by  being  struck  and  killed  by  a  backing  en- 
gine, there  being  nothing  to  show  negli- 
gence on  the  part  of  those  in  charge  of  the 
engine.  Norfolk  &*  W.  R.  Co.  v.  Harman, 
83  Va.  553,  8  S.  E.  Rep.  251.— Quoting 
Baltimore  &  O.  R.  Co.  v.  Sherman,  3oGratt. 

•  Contributory  negligence  in  failing  to  heed 
warnings  and  signals,  see  41  Am.  &  Eng.  R. 
Cas.  534i  «'*'''• 


1166 


TRESPASSERS,  INJURIES  TO,  105. 


M 


(Va.)  602.— Quoted  in  Tyler  v.  Sites,  88 
Va.  470.     Reviewed  in  Tyler  v.  Kelley,  89 
Va.  283. 
105.  Duty  to  look  and  listen.— (i)  In 

gtntral.*  —  Tlie  fact  that  a  company  has 
been  in  the  habit  of  moving  its  trains  in  a 
certain  direction  over  one  tracic  is  no  ex- 
cuse for  the  failure  of  one  about  to  walk  in 
the  same  direction  along  the  ties  of  an 
adjoining  tracic  to  note  whether  a  train  is 
approaching  behind  him.  Lake  Shore  &* 
M.  S.  R.  Co.  V.  Hart.  87  ///.  529,  19  Am. 
Ky.  Rep.  249. 

To  walk  upon  a  track  without  looking  in 
both  directions  to  discover  approaching  en- 
gines or  trains,  where  the  exercise  of  such 
precaution  would  discover  the  one  or  the 
other,  is  such  negligence  as  will  prevent  a 
recovery,  unless  the  injury  was  wilfully  or 
wantonly  inflicted.  Southeast  6*  St.  L.  R. 
Co.  V.  Stotlar,  43  ///.  App.  94. 

A  person  who  walks  along  a  track  as 
matter  of  convenience,  without  constant 
watchfulness  for  trains,  is  guilty  of  such 
negligence  as  will  defeat  a  recovery  for  in- 
jury sustained  if  such  negligence  is  a  direct 
contributory  cause ;  except  where  there  has 
been  a  want  of  reasonable  care,  by  the  em- 
ployes of  the  company,  to  avoid  the  injury, 
after  becoming  aware  of  the  perilous  situa- 
tion of  the  party  injured.  State  v.  Balti- 
more &>  O.  R.  Co.,  69  Md.  494,  16  Atl.  Rep.  210. 
—Followed  in  Baltimore  &  O.  R.  Co.  v. 
Stote,  69  Md.  551,  16  Atl.  Rep.  212.— John- 
son V.  Truesdale,  46  Minn.  345,  48  N.  W. 
Rep.  1136. 

No  recovery  can  be  had  for  an  injury  to 
a  trespasser  going  upon  the  ',,i-?ck,  at  a 
time  when  he  knew  a  train  was  due, 
without  stopping  to  look  or  listen  for  it, 
unless  some  person  in  charge  of  the  train 
saw  him  or  knew  of  his  presence  on  the 
track  in  time  to  have  avoided  the  injury. 
Barker  v.  Hannibal  &*  St.  J.  R.  Co.,  37  Am. 
6-  Eng.  R.  Cas.  292,  98  Mo.  50,  11  S.  W. 
Rep.  254.— Distinguished  in  Bluedom  v. 
Missouri  Pac.  R.  Co.,  108  Mo.  439. 

One  who  walks  along  a  railroad  track  with- 
out license  must  exercise  extraordinary  care 
to  avoid  injury,  and  if  he  goes  along  for  a 
considerable  distance  without  looking  back 
for  a  train,he  cannot  recover  for  injuries  sus- 
tained, in  the  absence  of  negligence  by  the 

*  Contributory  negligence  in  failing  to  look 
for  trains  before  going  on  track,  see  41  Am.  & 

Eno.  R    Cas.  533,  abstr. 


employes  of  the  company  after  they  have 
discovered  his  presence.  Candelaria  v.  At- 
chison, T.  &*  S.  F.  R.  Co.,  48  Am.  &>  Eng. 
R.  Cas.  565, 6  N.  Mex.  266,  27  Pac.  Rep.  497. 

It  is  negligence  per  se  for  a  person  to 
board  or  alight  from  a  moving  train,  or  to 
attempt  to  cross  a  railroad  track  without 
looking  for  approaching  trains,  or  to  stand 
between  the  rails  of  a  side  track  upon  which 
cars  are  standing,  or  to  be  inattentive  to 
his  dangerous  position  when  on  a  track, 
whether  lawfully  there  or  not.  Redmond  v. 
Rome,  W.  &>  O.  R.  Co.,  31  N.  Y.  S.  R.  366, 
10  N.  Y.  Supp.  330,  56  Hun  645. 

A  person  injured  while  walking  along  a 
track,  who  could  have  avoided  the  injury  if 
he  had  used  his  senses,  cannot  recover. 
McAdoo  V.  Richmond  &*  D.  R.  Co.,  41  Am. 
&*  Eng.  R.  Cas.  524,  105  N.  Car.  140,  11  5. 
E.  Rep.  316.  Syme  v.  Richmond  &•  D.  R. 
Co.,  113  A^.  Car.  558,  18  S.  E.  Rep.  114. 

A  person  walking  upon  a  track  is  not 
free  from  negligence  if  he  omits  to  keep 
watch  of  the  movement  of  trains,  but  relies 
upon  a  rule  or  custom  of  the  railroad  em- 
ployes to  give  a  signal  of  the  movement  of 
trains.  The  expectation  that  a  signal  will  be 
given  does  not  relieve  the  person  from  con- 
stant watchfulness  for  his  own  safety.  Bal- 
timore <&>•  O.  R.  Co.  V.  Depew,  12  Am.  &* 
Eng.  R.  Cas.  64,  40  Ohio  St.  121. — Applied 
IN  Elliot  V.  Chicago,  M.  &  St.  P.  R.  Co.,  38 
Am.  &  Eng.  R.  Cas.  62,  5  Dak.  523, 3  L.  R. 
A.  363,  41  N.  W.  Rep.  758. 

(2)  ///«j/ra//o«j.— Plaintiff,  an  adult,  was 
walking,  for  his  own  convenience,  in  a  rail- 
road yard,  and,  to  avoid  a  train,  stepped  be- 
tween the  rails  of  an  adjoining  track,  where 
there  was  nothing  in  the  rear  to  break  the 
view  for  a  long  distance.  He  failed  to  look 
behind  him,  and  after  walking  about  300 
feet  was  struck  by  an  engine,  the  bell  of 
which  was  not  ringing,  as  required  by  a  city 
ordinance.  Walking  upon  the  tracks  in 
the  yard  by  strangers  was  forbidden  by  stat- 
ute, but  persons  did  walk  on  the  tracks  daily 
without  interference.  Held,  that  plaintiff's 
injury  resulted  from  his  failure  to  exercise 
ordinary  care,  and  that  defendant  was  not 
liable.  Missouri  Pac.  R.  Co.  v.  Moseley,  57 
Fed.  Rep.  921. 

In  such  case  the  act  of  plaintiff  was  the 
primary  and  efficient  cause  of  the  injury, 
and  the  failure  to  ring  a  bell  was  at  most 
concurrmg  or  succeeding  negligence,  which 
failed  to  prevent  the  natural  consequences 
of  plaintifi't  carelessness,  but  was  not  of  it- 


TRESPASSERS,  INJURIES  TO,  106. 


1167 


[ter  they  have 
ndtlaria  v.  At- 
i  Am.  &•  Eng. 
Pac.  Rtp.  497. 
r  a  person  to 
ig  train,  or  to 
track  without 
IS,  or  to  stand 
ck  upon  which 
inattentive  to 
1  on  a  track, 
.  Redmond  v. 
.  Y.  S.  R.  366, 

•45- 

liking  along  a 
d  the  injury  if 
>nnot  recover. 
K.  Co.,  41  Am. 
Car.  140,  II  S. 
tond  <S-  D.  R. 
Rep.  114. 

I  track  is  not 
omits  to  keep 
ains,  but  relies 
!  railroad  em- 
:  movement  of 
\  signal  will  be 
rson  from  con- 
n  safety.  Bal- 
•w,  12  Am.  &* 
[21.— Applied 
.  P.  R.  Co.,  38 
ik.  523, 3  L.  R. 

,  an  adult,  was 
ence,  in  a  rail- 
in,  stepped  be- 
g  track,  where 
'  to  break  the 
!  failed  to  look 
ing  about  300 
tie,  the  bell  of 
[uired  by  a  city 
the  tracks  in 
t}idden  by  stat- 
he  tracks  daily 
that  plaintiff's 
ire  to  exercise 
ndant  was  not 
V.  Moseley,  57 

aintifl  was  the 
of  the  injury, 

II  was  at  most 
;ligence,  which 
I  consequences 

was  not  of  it- 


self such  negligence  as  would  render  defend- 
ant liable.  Missouri  Pac.  R.  Co.  v.  Moseley, 
57  Fed.  Rep.  921. 

Plaintiff  walked  upon  a  track,  only  a  few 
steps  south  of  an  approaching  train,  with- 
out looking  north  to  see  if  there  was  danger, 
and  paid  so  little  heed  as  not  to  hear  the 
bell  or  whistle  when  sounded  or  notice  the 
calls  of  persons  warning  him  of  danger,  and 
wai  run  over  by  the  engine,  which  was  not 
moving  at  a  high  rate  of  speed  ;  there  was 
no  proof  that  the  servants  of  the  company 
wantonly  or  wilfully  caused  the  injury. 
Held,  that  plaintiff's  negligence  was  so  gross 
as  to  preclude  a  recovery.  Lake  Shore  &• 
M.  S.  R.  Co.  V.  Hart,  87  ///.  529, 19  Am.  Ry. 
Rep.  249.— Distinguished  in  Chicago  &  E. 
I.  R.  Co.  V.  O'Connor,  1 19  111.  586. 

Where  a  party  knowingly  places  himself 
in  a  place  of  great  danger  he  is  required  to 
use  vigilance  correspondingly  great.  So 
where  a  party  chooses  to  walk  on  a  track 
where  he  knows  that  engines  may  approach 
him  from  behind,  he  must  keep  a  lookout 
in  that  direction  proportioned  to  the  dan- 
ger. LaJie  Shore  &•  M.  S.  R.  Co.  v.  Blanch- 
ard,  15  ///.  App.  582.— Quoting  Austin  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  91  111.  35. 

A  person  was  walking  along  one  of  five 
parallel  tracks,  on  which  trains  passed 
every  few  minutes,  and  to  avoid  a  train 
stepped  from  one  track  upon  another  track 
on  which  an  engine  was  approaching  from 
behind,  in  plain  sight,  and  proceeded  on 
his  way  without  looking  and  was  run  over 
and  killed.  Held,x\i&X.  he  was  guilty  of  con- 
tributory negligence  such  as  to  preclude  a 
recovery  for  his  death.  Mich^an  C.  R.  Co. 
v.  Campau,  35  Mich.  \f>%,  15  Am.  Ry.Rep. 
314.  —  Applied  in  O'Donnell  v.  Missouri 
Pac.  R.  Co.,  7  Mo.  App.  190.  Followed 
IN  Bresnahan  v.  Michigan  C.  R.  Co.,  8 
Am.  &  Eng.  R.  Cas.  147,  49  Mich.  410. 
Quoted  in  Belirens  v.  Kansas  Pac.  R.  Co. 
8  Am.  &  Eng.  R.  Cas.  184,  5  Colo.  400. 

Plaintiff,  a  simple-minded  youth  about 
nineteen  years  old,  was  with  a  crowd  at.  a 
depot,  as  a  spectator,  when  a  local  freight 
train  arrived.  The  locomotive  and  a  box 
car  were  detached,  and  moved  forw<nrd  be- 
yond a  switch,  and  the  car,  with  brakes  and 
a  brakcman,  was  pushed  or  "  kicked  "  in  on 
the  side  track,  and  by  its  momentum  it 
rolled  back  slowly,  striking  and  injuring 
plaintiff,  who  was  standing  on  the  edge  of 
the  side  track  at  a  point  where  spectators 
or   passengers  were  not  invited  tn  {-o  f  r 


stand.  There  was  no  obstruction,  and  no 
warning  was  given,  the  brakeman  not  seeing 
him.  It  was  due  to  plaintiff's  inattention 
that  he  did  not  see  or  hear  the  car  and  step 
off  the  track.  Held,  that  he  could  not  re- 
cover. Dooley  v.  Mobile  &*  O.  R.  Co.,  69 
Miss.  648,  12  So.  Rep.  956. 

Deceased,  a  man  of  mature  years,  who. 
in  going  to  his  work,  passed  daily  the  point 
where  lie  was  struck,  and  who  must  have 
known  that  a  train  was  due  about  that  time, 
instead  of  walking  between  two  tracks, 
stepped  in  broad  daylight  upon  one  of  the 
tracks,  the  view  of  which  was  unobstructed 
for  several  hundred  yards,  and  continued 
to  walk  on  it  without  looking  or  listening, 
or  paying  any  attention  whatever  to  his  sit- 
uation. Held,  that  he  was  guilty  of  such 
negligence  as  would  prevent  a  recovery, 
unless  it  appeared  that  after  he  had  exposed 
himself  to  peril  defendant's  servants  be- 
came aware  of  his  perilous  position,  or  by 
the  exercise  of  ordinary  care  might  have 
discovered  it,  in  time  to  prevent  injuring 
him,  and  thereafter,  immediately  before  and 
up  to  the  time  of  actual  collision,  failed  to 
use  such  means  as  were  within  their  power, 
with  a  proper  degree  of  care,  consistent 
with  the  safety  of  those  on  board  the  train, 
to  avoid  injuring  him.  Guenther  v.  St, 
Louis,  I.  M.  &>  S.  R.  Co.,  34  Am.  &*  Eng. 
R.  Cas.  47.  95  Mo.  286,  14  West.  Rep.  73 j.  8 
S.  W.  Rep.  371.  — Followed  in  Pope  v. 
Kansas  City  Cable  R.  Co.,  43  Am.  &  Eng. 
R.  Cas.  290,  99  Mo.  400.  12  S.  W.  Rep.  891. 
Quoted  in  Prewitt  v.  Eddy,  54  Am  &  Eng 
R.  Cas.  138, 115  Mo.  283,  21  S.  W.  Rep.  742. 

Where  a  person  is  walking  on  one  track 
and  passing  a  heavy  train,  on  another  track, 
which  is  exhausting  so  as  to  prevent  his 
hearing  the  approach  of  an  engine  behind, 
it  is  his  duty,  if  he  cannot  listen,  to  look ; 
and  if  he  fails  to  do  so  it  is  contributory 
negligence,  and  there  can  be  no  recovery 
for  his  death.  Syme  v.  Richmond  &*  D.  R. 
Co.,  113  A'.  Car.  558,  18  S.  E.  Rep.  114. 

Deceased  was  walking  on  a  path  by  the 
side  of  a  track.  He  knew  that  the  train  by 
which  he  was  killed  was  due  about  that  time, 
and  therefore  had  reason  to  expect  and  look 
out  for  it;  but  he  did  not  look  and  listen. 
He  might  have  seen  along  the  track  for 
a  distance  of  forty  rods,  and  when  the  train 
came  within  forty  feet  of  him,  he  attempted 
to  cross  the  track,  and  was  run  over  and 
killed.  Held,  that  the  failure  of  deceased 
to  Innk  and  listen  was  the  proximate  cause 


■!  li 


H 


1158 


TRESPASSKRS,  INJIIKIKS  TO,  10«,  107 


of'his  death,  and  that  a  nonsuit  was  prop« 
eriy  granted,  even  though  the  engineer 
might  have  been  negligent  in  some  measure 
in  failing  to  ring  the  bell.  (Taylor,  J.,  dis- 
senting.) Schilling  v.  Chicago,  M.  &*  St. 
P,  R.  Co..  i\  Am.  &*  Eng.  K.  Cas.  60.  71 
IVis.  255,  37  N.  W.  R*p.  414.  40  A^-  W'. 
J?//.  616.— Quoting  Hoye  v.  Chicago  &  N. 
W.  R.  Co.,  67  Wis.  I ;  Baltimore  &  O.  R. 
Co.  V.  State,  33  Md.  542  ;  Frazer  v.  South 
&  N.  Ala.  R.  Co.,  81  Ala.  185. 

100. while  walking  on  track 

In  the  night-time.— To  walk  along  the 
middle  ol  a  track  between  crossings  when 
it  is  dark,  and  without  knowing  and  remem- 
bering whether  a  train  is  due  or  not,  and 
without  looking  in  both  directions  for  trains, 
and  without  listening  attentively  and  anx- 
iously for  the  roar  and  rattle  of  machinery, 
as  well  as  for  the  sound  of  bell  or  whistle, 
is  gross  negligence.  Central  R.  ^  B.  Co,  v. 
Smith,  34  Am.  &*  Eng.  R.  Cas.  1,  78  Ga. 
694,  3  S.  E.  Rtp.  397. 

A  person  so  trespassing  must  guard,  not 
only  against  negligence  on  the  part  of  the 
company,  which  he  might  discover  in  time 
to  avoid  the  consequences,  but  also  against 
the  ordinary  danger  of  there  being  negli- 
gence  which  he  might  not  discover  until  too 
late.  Central  R.  &*  B,  Co.  v.  Smith,  34  Am. 
6-  Eng.  R.  Cas.  I,  78  Ga.  694,  3  5.  E. 
Rip.  397. 

One  knowingly  and  needlessly  walking  at 
night  upon  a  railroad  track  can,  by  the  use 
of  ordinary  diligence,  avoid  being  run  over 
by  a  train,  unless  it  appears  that,  owing  to 
some  special  fact  or  circumstance,  the  use 
of  such  diligence  would  prove  ineffectual 
Wilds  V.  Brunswick  &»  W.  R.  Co.,  82  Ga. 
667,  9  S.  E.  Rtp.  595. 

One  who  walks  on  a  track  at  night,  know- 
ing that  a  train  is  due,  until  he  is  struck  and 
injured,  is  guilty  of  such  negligence  as  to 
prevent  a  recovery,  though  the  engine  may 
have  failed  to  carry  a  headlight.  Houston 
A-  T.  C.  R.  Co.  V.  Richards,  12  Am.  6-  Eng. 
R.  Cas.  70,  59  Tex.  373.— Reviewing  Hous- 
ton &  T.  C.  R.  Co.  V.  Sympkins,  54  Tex. 
615:  McClaren  v.  Indianapolis  &  V.  R.  Co., 
8  Am.  &  Eng.  R.  Cas.  217,  83  Ind.  319.— 
Applied  in  Artusy  v.  Missouri  Pac.  R.  Co., 
37  Am.  &  Eng.  R.  Cas.  288,  73  Tex.  191,  11 
S.  W.  Rep.  177- 

One  who  is  injured  on  a  stormy  night 
while  walking  on  the  ends  of  the  ties,  with 
his  hat  drawn  down  over  his  eyes,  and 
"  looking  straight  down,"  as  his  own  wit- 


ness put  it,  cannot  recover.  Gulf,  C.  &*  S. 
F.  R.  Co.  V.  York,  74  Tix.  364,  12  S.  W. 
Rep.  68. 

There  can  be  no  recovery  against  a  rail- 
road for  the  killing  of  a  person  who  goes 
upon  its  track  in  the  night-time,  at  a  place 
where  there  is  no  public  crossmg,  where  the 
company  is  using  the  track  in  the  ordinary 
manner  and  without  any  neglect,  and  it 
further  appears  that  the  deceased  might 
have  seen  the  approaching  train  long  before 
it  reached  him,  and  where  there  are  other 
facts  sufficient  to  warrant  the  inference  that 
he  entered  upon  the  track  at  a  point  so  near 
the  approaching  train  that  the  exercise  of 
the  highest  degree  of  care  by  those  in  charge 
of  the  train  could  not  have  saved  him  had 
he  been  seen  when  he  first  came  on  the 
track.  Texas  &*  N.  O.  R.  Co.  v.  Barfield, 
(Tex.)  3  S.  W.  Rep.  665.— Following  Gal- 
veston, H.  &  S.  A.  R.  Co.  V.  Bracken,  59 
Tex.  74;  Houston  &  T.  C.  R.  Co.  v.  Smith, 
52  Tex.  183;  Hoover  V.  Texas  &  P.  R.  Co., 
61  Tex.  503  ;  Houston  &  T.  C.  R.  Co.  v. 
Richards,  59  Tex.  373 ;  Houston  &  T.  C.  R. 
Co.  v.  Sympkins,  54'Tex.  618. 

107.  Rule  where  person  is  deaf  or 
hard  of  hearing.  —  It  appeared  that  a 
train  struck  plaintifl  from  behind ;  that  he 
knew  nothing  of  its  presence  until  struck  ; 
that  his  hearing  was  defective,  but  he  was 
not  aware  of  the  extert  of  the  defect ;  and 
that  the  whistle  was  blo?rn.  He  offered  tes- 
timony that  his  son,  who  was  aboard  the 
train,  had  informed  the  conductor  that 
plaintiff  was  traveling  along  the  track,  and 
was  deaf  or  partially  so ;  but  the  court  ex- 
cluded the  evidence,  and  allowed  a  nonsuit. 
Held,  that  plaintiff's  own  evidence  estab- 
lished contributory  negligence  on  his  part ; 
that,  had  the  testimony  been  admitted,  a 
prima  facie  case  of  gross  negligence  or 
wantonness,  requiring  a  submission  to  the 
jury,  would  not  have  been  made;  and  that 
there  was  no  ground  for  reversal.  (Beck, 
C.J.,  dissenting.)  Kennedy  v.  Denver,  S.  P. 
&>  P.  R.  Co.,  34  Am.  &*  Eng.  R.  Cas.  40,  10 
Colo.  493,  16  Pac.  Rep.  210. 

One  who  is  partially  deaf  and  who  walks 
on  the  ends  of  the  ties  just  outside  the  rail, 
until  he  is  struck  by  an  engine  approaching 
from  behind,  is  guilty  of  such  contributory 
negligence  as  to  defeat  a  recovery,  though 
the  train  employes  may  have  been  lacking 
in  proper  prudence  and  care.  Laicher  v. 
New  Orleans,  J.  &»  G.  N.  R.  Co.,  28  La, 
Ann.  320. 


TRRSPASSEKS,  INJURIES    TO,  108-111. 


1159 


Gutf.  C.  6-  S. 
364,  ti  S.  W. 

against  a  rail- 
rson  who  goes 
Lime,  at  a  place 
sing,  where  the 
n  the  ordinary 
eglect.  and  it 
eceased  might 
ain  long  before 
here  are  other 

inference  that 
a  point  so  near 
he  exercise  of 
those  in  charge 
saved  him  had 

came  on  the 
Co.  V.  Bitrfield, 
)LLOWING  Gal- 
V.  Bracicen,  59 
;.  Co.  V,  Smith, 
IS  &  P.  R.  Co., 
.  C.  R.  Co.  V. 
iton  &  T.  C.  R. 

►n  is  deaf  or 

)peared  that  a 
ehind ;  that  he 
e  until  Struck ; 
ve,  but  he  was 
lie  defect;  and 
He  offered  tes- 
ras  aboard  the 
onductor  that 
the  track,  and 
t  the  court  ex- 
iwed  a  nonsuit, 
ividence  estab- 
:e  on  his  part ; 
En  admitted,  a 
negligence  or 
mission  to  the 
lade;  and  that 
/ersal.  (Beck. 
Denver,  S.  P. 
H.  Cat.  40,  10 

and  who  walks 
Litside  the  rail, 
le  approaching 
1  contributory 
overy,  though 
:  been  lacking 
e.  Laicker  v. 
^   Co.,  38   La, 


It  is  gross  negligence  for  one  who  is  deaf 
to  walk  along  a  track  where  trains  are  liable 
to  pats.  Cogswell  v.  Oregon  &*  C.  Ji.  Co.,  6 
Ort^.  417- 

An  aged  man  with  defective  hearing  was 
■truck  by  a  train  while  upon  a  track,  and 
was  killed.  Hit  deafness  was  not  known  to 
those  operating  the  train.  The  train  was 
compovd  of  about  twenty  cars  in  advance 
of  the  locomotive,  and  was  movmg  slowly. 
The  deceased  was  seen  by  the  lookout  upon 
the  first  car  long  before  the  train  re<ichcd 
him,  but  it  was  supposed  that  when  neces* 
sary  for  his  safety  he  would  leave  the  track. 
When  the  train  was  about  100  feet  from  him 
the  lookout  signalled  to  stop  it,  but  before 
the  cars  could  be  stopped  he  was  run  over 
and  fatally  injured.  Helil,  that  the  com- 
pany was  not  guilty  of  negligence  and  was 
not  liable.  Artusyv.  Missouri Pac.  li.  Co., 
37  Am.  6*  Eng.  li.  Cas.  288.  73  Tex.  \<)\,  11 
S.  IV.  Pep.  177.— Following  Missouri  Pac. 
R.  Co.  V,  Weisen,  65  Tex.  443. 

108,  Biding  in  Mrrong  car.  —  If 
plaintiff,  at  the  time  of  the  accident,  was 
riding  in  a  car  not  provided  for  passengers, 
but  where  his  presence  was  not  required  in 
order  to  protect  his  property,  and  one  which 
he  was  prohibited  from  occupying,  it  might 
be  claimed  that  he  was  guilty  of  such  negli- 
gence as  to  preclude  a  recovery.  But  if  it 
was  absolutely  necessary  for  him  to  ride  in 
such  car,  and  the  company  had  waived  the 
prohibition  and  consented  that  he  might 
ride  in  the  same  car  with  his  property,  evi- 
dence tending  to  prove  these  facts  was  com- 
petent. Chica(;o,  B.  &*  Q.  P.  Co.  v.  Dickson, 
143  ///.  368.  32  N.  E.  Pep.  380. 

100.  Climbing  upon  car.— One  who 
voluntarily  and  without  right  gets  upon  a 
freight  car  to  ride  is  a  mere  intruder  and 
trespasser,  and  the  company  owes  to  him  no 
duty  except  the  negative  duty  not  to  injure 
him  wantonly  or  wilfully,  or  by  such  gross 
and  reckless  negligence  in  the  management 
of  the  car,  after  he  is  discovered  on  it,  as 
would  be  equivalent  to  intentional  mis- 
chief. And  even  if  the  engineer  knows  of 
his  being  upon  the  car,  and  it  negligent  in 
his  management  of  it,  the  company  is  not 
liable  for  an  injury  to  him  which  could  not 
be  foreseen  as  a  probable  consequence.  St. 
Louis,  I.  M.  d*  S.  P.  Co.  V.  Ledbetter,  45 
Ark.  246.— Followed  in  Sibley  v.  Rat- 
liffe,  37  Am.  &  Eng.  R.  Cas.  295,  50  Ark.  477. 

A  boy  able  to  take  care  of  himself  who 
tries  to  climb  on  to  a  moving  train  and  is 


injured  has  no  right  of  action  against  the 
railroad  company.  Chicago,  P.  1. 4- P.  R.  Co. 
V.  Pining er.  114  ///.  79,  29  A'.  E.  Pep.  196. 
— guoTKD  IN  Chicago  &  W.  I,  R.  Co.  v, 
Roath,  35  III.  App.  349. -Quoted  and 
DISTINGUISHED  IN  Chicago  &  A.  R.  Co.  v. 
Fisher,  141  III.  614. 

A  person  who  gets  on  a  switch  engine 
at  the  invitation  of  a  brakeman,  who  is  not 
authorized  to  invite  any  one  on  the  en- 
gine, is  not  entitled  to  recover  for  an  injury 
caused  by  the  engine  leaving  the  track. 
Stringer  v.  Missouri  Pac.  P.  Co.,  96  Mo. 
299,  9  S.  W.  Pep.  905. 

110.  Gutting  off  car.  —  Plaintiff,  a 
boy  thirteen  years  old,  unlawfully  jumped 
on  a  moving  train.  Held,  that  the  company 
owed  him  no  duty  and  had  a  right  to  re- 
move him,  but  in  doing  so  it  was  not  justi- 
fied in  subjecting  him  to  any  unnecessary 
hazard.  Where  the  evidence  permits  thecon- 
ciusion  that  water  was  thrown  in  his  face  in 
an  improper  manner,  which  caused  him  to 
fall  or  get  off  so  as  to  be  injured,  there  is 
sufficient  evidence  of  negligence  to  submit 
to  the  jury.     Clark  v.  New  York,  L.  E.  &* 

IV.  P.  Co.,  40  Hun  605,  2  N.  Y.  S.  P.  249 ; 
affirmed  in  113  A''.  Y.  670,  mem.,  21  N.  E. 
Pep.  1 1 16,  23  A^.  Y.  S.  P.  994.— Distin- 
guished IN  Hogan  V.  Central  Park,  N.  & 
E.  R.  R.  Co..  36  N.  Y.  S.  R.  352, 124  N.  Y.  647. 

111.  Recovery  n«  '  'tbstanding 
contributory  neglige  —Although 
plaintiff  may  have  been  jlt  in  the  first 
instance,  in  getting  on  a  track,  yet,  if  he 
makes  all  proper  efforts  to  escape  when  the 
danger  becomes  apparent,  and  the  servants 
of  the  company  fail  to  use  all  the  proper 
means  in  their  power  by  which  the  danger 
might  be  avoided,  the  company  is  responsi- 
ble for  the  injury,  and  the  original  contrib- 
utory negligence  is  no  defense.  Tanner  v. 
Louisville  <^  A'^,  P.  Co.,  60  Ala.  621. — 
Quoting  Tuflf  v.  Warman,  5  C.  B.  N.  S. 
573 ;  Spoflord  v.  Harlow,  3  Allen  (Mass.) 
176.  Reviewing  Government  St.  R.  Co. 
V.  Hanlon,  53  Ala.  70. 

If  a  person  was  midway  of  a  trestle  when 
first  seen  by  the  engineer  of  a  train,  and 
the  distance  was  great  enough  to  permit 
the  train  to  be  stopped  by  a  prompt  resort 
to  the  proper  appliances,  but  the  engineer, 
instead  of  attempting  at  once  to  stop  or 
check  the  train,  acted  on  the  assumption 
that  the  person  crossing  would  reach  the 
end  of  the  trestle  and  step  off  before  the 
engine  reached  that  point,  and  did  not  dis- 


1160 


TRESPASSERS,  INJURIES   TO,  112. 


(I 


cover  his  mistake  until  the  traveler  stopped, 
hesitated,  and  attempted  to  retrace  his 
steps,  and  the  train  could  not  then  be 
stopped  in  time  to  avert  the  injury,  these 
facts  would  justify  a  verdict  for  plaintilT, 
notwithstanding  the  intestate's  contributory 
negligence  as  a  trespasser.  Central li.  &*  Ji, 
Co.  V.  Vat4ghan,  93  Ala.  209,  9  So.  Rep.  468. 

Though  a  person  may  be  a  trespasser  on 
a  track,  yet  if  the  train  employds  have  rea- 
son to  believe  that  he  is  drunk,  or  other- 
wise incapacitated,  they  have  no  right  to 
presume  that  he  will  get  off,  but  must  use 
proper  care  to  avoid  injuring  him  ;  other- 
wise the  company  will  be  liable.  St.  Louis, 
I.  M.  &*  S.  li.  Co.  v.  Wilkerson,  46  Ark, 
513.— F01.I.OWKD  IN  Sibley  v.  RatlifTe.  37 
Am.  &  Eng.  R.  Cas.  295,  50  Ark.  ^yy.—Lala 
Shore  &*  Af.  S.  Ji.  Co.  v.  Bodemer,  54  Am. 
&»  Eng.  R.  Cas.  177,  139  ///.  596,  29  N.  E. 
Rep.  692 ;  affirming  33  ///.  App.  479.  Balti- 
more 6-  O.  R.  Co.  V.  State,  36  Md.  366. 
Missouri  Pac.  R.  Co.  v.  tVeisen,  65  Tex. 
443.  —  Followed  IN  Artusy  v.  Missouri 
Pac.  R.  Co..  37  Am.  &  Eng.  R.  Cas.  288,  73 
Tex.  191.  II  S.  W.  Rep.  177.  Quoted  in 
Saldana  v.  Galveston,  H.  &  S.  A.  R.  Co.,  43 
Fed.  Rep.  S62.— Everett  v.  Oregon  S.  L.  &* 
U.  N.  R.  Co.,  9  Utah  340,  34  Pac.  Rep.  289. 

One  may  be  technically  a  trespasser  and 
yet  recover  for  an  injury  resulting  from  the 
wrongful  act  of  another,  if  he  has  used  due 
care  to  avoid  the  injury,  or  one  may  not  be 
a  trespasser  and  yet  be  guilty  of  such  con- 
tributory negligence  as  to  preclude  him 
from  recovering.  Vicksburg  (S-  M.  R.  Co.  v. 
AfcGowan,  62  Miss.  682. 

If  plaintiff's  want  of  ordinary  care  is 
caused  by  defendant,  it  is  involuntary,  and 
therefore  not  contributory  negligence.  .So 
held,  where  plaintiff  went  on  a  freight  train, 
and  was  caused  to  fall  or  jump  off  while  the 
train  was  in  motion  by  an  employe  throwing 
water  in  his  face.  Clark  v.  New  York,  L.  E. 
&-  IV.  R.  Co.,  40  Hun  60s,  2  A'.  Y.  S.  R.  249; 
affirmed  in  113  N.  Y.  670,  mem.,  21  N.  E. 
Rep.  1 1 16,  23  A^.  Y.  S.  R.  994. 

If  the  proximate  cause  of  injury  to  one 
run  over  and  maimed  by  a  train  is  the  negli- 
gence of  the  engineer  in  charge,  and  the 
party  injured  is  prevented  by  a  providential 
dispensation  from  the  use  of  his  faculties  at 
the  time  of  the  injury,  the  fact  that  prior  to 
the  time  of  the  injury,  when  no  train  was  in 
view,  and  before  being  providentially  dis- 
abled, the  injured  party  placed  himself 
wrongfully  on  the  track  of  the  road,  would 


not  constitute  such  contributory  negligence 
as  would  prevent  a  recovery.  Houston  &*  T. 
C.  R.  Co.  V.  Sympkins,  6  Am.  &*  Eng.  R. 
Cas.  II,  54  Tex.  615. 

112.  groMH  iiegliKoiico  or  wll- 

f^iliiess.  —  When  a  person  voluntarily  and 
without  authority  undertakes  to  walk  upon 
a  track,  he  ought  not  to  recover  damages 
for  an  injury  ceived,  unless  it  appears  that 
the  injury  was  caused  by  the  wanton  and 
wilful  misconduct  of  the  employes  of  the 
company.  Chicago  &*  A.  R.  Co.  v.  McKenna, 
14  ///.  App.  472. 

Where  the  negligence  of  defendant  was 
so  gross  as  to  imply  a  disregard  of  conse- 
quences, or  a  willingness  to  inflict  the  injury, 
plaintiff  may  recover,  though  lie  was  a  tres- 
passer, or  did  not  use  ordinary  care  to  avoid 
the  injury.  Lafayette  ^  I.  R.  Co.  v.  Adams, 
26  lud.  76. —  Criticised  in  Cincinnati  & 
M.  R.  Co.  V.  Eaton,  53  Ind.  307.  Distin- 
guished IN  Lary  v.  Cleveland,  C.  C.  &  I.  R. 
Co.,  3  Am.  &  Eng.  R.  Cas.  498,  78  Ind.  323, 
41  Am.  Rep.  572 ;  Cohen  v.  Eureka  &  P.  H. 
Co.,  14  Nev.  376. 

Plaintiff  jumped  upon  the  platform  of  a 
baggage  car  on  defendant's  road,  to  ride  to 
a  place  where  the  cars  were  being  backed  to 
make  up  a  train.  Defendant's  rules  forbade 
all  persons,  except  certain  cmployfes,  riding 
on  baggage  cars,  and  directed  baggagemen 
rigidly  to  enforce  the  rule.  As  plaintiff's  evi- 
dence tended  to  show,  defendant's  baggage- 
man ordered  plaintiff  off  while  the  car  was 
in  motion.  A  pile  of  wood  was  near  the 
tmck.  Plaintiff  replied  that  he  could  not 
get  off  because  of  the  wood,  whereupon  the 
b.igsage  master  kicked  him  off;  he  fell 
against  the  wood  and  then  under  the  cars, 
and  was  injured.  Held,  that  the  fact  that 
plaintiff  was  a  trespasser  was  not  a  defense, 
and  that  the  evidence  was  sufficient  to  au- 
thorize the  submission  of  defendant's  I  lability 
to  a  jury.  Rounds  v.  Delaware,  L.  &•  IV.  R. 
Co.,  64  A^.  Y.  129,  21  Am.  Rep.  597;  affirm- 
ing 3  Hun  329.  $  T.  &*  C.  475.— Not  fol- 
lowed IN  Deans  v,  Wiltnington  &  W.  R. 
Co.,  107  N.  Car.  686.  —  See  also  Porter  v. 
Chicago,  R.  I.  &»  P.  R.  Co.,  41  Iowa  358. 

As  between  the  company  and  a  trespasser 
or  stranger,  contributory  negligence  on  the 
part  of  plaintiff  renders  defendant  liable 
only  for  gross  or  wanton  or  wilful  neglect, 
where  otherwise  he  would  be  held  liable  for 
ordinary  negligence.  Carrico  v.  West  Vir- 
ginia C.  &*  P.  R.  Co.,  52  Am.  6-  Eng.  R. 
Cas.  393,  35  IV.  Va.  389,  14  5.  E.  Rep.  12. 


TRESPASSERS,  INJURIES  TO,  118, 114. 


1161 


ry  negligence 

Houston  6-  T. 

&*  Eng.  R. 

ICO  or  wll- 

luntarily  and 
to  walk  upon 
ver  damaKes 
appears  that 
wanton  and 
iloy6s  of  the 
V.  McKenna, 

sfendant  was 
ird  of  con8c« 
ct  tlie  injury, 
16  was  a  tres- 
care  to  avoid 
I'tf.  V.  Adams, 
Cincinnati  & 
07.  DlSTlN- 
C.C.&I.  R. 
,  78  Ind.  323. 
ireka  &  P.  K. 

platform  of  a 
ad,  to  ride  to 
ng  backed  to 
rules  forbade 
iloyfes,  riding 

baggagemen 
}laintiff'sevi- 
nt's  baggage- 
:  the  car  was 
vas  near  the 
lie  could  not 
hereupon  the 

ofT;  he  fell 
ider  the  cars, 
the  fact  that 
lot  a  defense, 
Sclent  to  au- 
lant's  liability 

.  L.  6-  IV.  a: 

597;  a_0rm- 
— Not  fol- 
on  &  W.  R. 
Iso  Porter  V. 
fowa  358. 
I  a  trespasser 
jence  on  the 
:ndant  liable 
ilfnl  neglect, 
eld  liable  for 
V.  West  Vir' 
.  6-  Eng^.  Ji. 
E.  Rep.  12. 


118.  Queitlon  ot  law  for  court.— 

In  a  suit  against  a  company  for  injuring 
one  on  the  track  by  a  running  train,  where 
there  is  no  conflict  of  evidence,  and  it  ap- 
pears that  the  injury  was  not  wilful,  and 
that  the  negligence  of  the  deceased  con- 
tributed to  it,  the  court  may  direct  a  verdict 
for  the  defendant.  McClaren  v.  Indian- 
apolis &*  V.  R.  Co.,  8  Am.  &*  Eng.  R.  Cas. 
217,  83  Ind.  319.— Reviewed  in  Houston  & 
T.  C.  R.  Co.  V.  Richards,  $9  Tex.  373. 

Both  negligence  and  contributory  negli- 
gence are  questions  of  fact  for  the  jury, 
where  the  facts  are  such  that  fair-minded 
men  may  differ  in  opinion  on  them ;  but 
where  contributory  negligence  is  clearly 
established,  as  where  it  appears  that  the 
plaintiff  got  on  a  train  at  an  improper  place 
and  without  leave  or  payment  of  fare,  and 
was  thrown  ofl,  the  court  should  dismiss 
the  complaint.  Buckley  v.  New  York  &* 
H.  R.  Co.,  II  /.  <S«-  S.  (N.  Y.)  187.— Ap- 
plying Fleming  v.  Brooklyn  City  R.  Co.,  i 
Abb.  N.  Cas.  (N.  Y.)  433.— Applied  in 
Finley  v.  Hudson  Elec.  R.  Co.,  46  N.  Y. 
S.  R.  202. 

114.  QiioMtioii  of  fact  for  the  Jury. 
— Plainiif!  was  a  railroad  laborer ;  it  was 
the  custom  to  take  the  men  home  at  even- 
ing on  a  locomotive,  but  on  the  day  in 
question  the  boss  told  them  that  they  would 
have  to  walk.  It  was  necessary  to  cross  a 
bridge,  and  in  doing  so  plaintifl  was  run 
over  by  a  locomotive  and  injured.  He  tes- 
tified that  "he  was  walking  at  his  ease,  not 
thinking  of  anything,"  and  did  not  see  the 
engine  when  it  came  on  the  bridge ;  but 
also  stated  that  he  "  never  thought  of  it, 
for  the  reason  that  the  boss  told  him  there 
was  nothing  to  come  across."  Held,  that 
the  question  of  his  contributory  negligence 
was  for  the  jury.  Northern  Pa(.  R.  Co.  v. 
Amato,  49  Fed.  Rep.  881,  i  U.  S.  App.  113. 
I  C.  C.  A.  468;  affirming  46  Fed.  Rep.  561 ; 
affirmed  in  144  U.  5.  465,  12  Sup.  Ct.  Rep. 
740.— Following  Bradley  v.  New  York  C. 
R.  Co.,  62  N.  Y.  99;  Oldenburg  v.  New 
York  C.  &  H.  R.  R.  Co.,  124  N.  Y.  414.  26 
N.  E.  Rep.  1021. 

After  waiting  a  reasonable  time  for  cars 
blocking  the  highway  to  be  removed,  a 
pedestrian  may  turn  aside  to  avoid  the 
obstruction  and  pass  over  the  company's 
enclosed  grounds.  In  doing  so  he  will  be 
no  trespasser.  Smith  v.  Savannah,  F.  &*  IV. 
R.  Co.,  42  Am.  &•  Eng.  R.  Cas.  105,  84  Ga. 
698,  II  S.  E.  Refi.ASS- 


While  upon  the  company's  grounds,  under 
■uch  circumitances,  the  diligence  (or  hit 
•afety  due  from  the  company,  at  well  at  hit 
own  diligence  in  guarding  against  danger, 
is  for  the  jury.  If  the  jury  think  hit  pret- 
ence ought  to  liave  been  foreseen  or  antici- 
pated, ignorance  of  it  will  make  no  difler- 
cnce.  Smith  v.  Savannah,  F.  &*  W.  R.  Co., 
42  Am.  &*  Etig.  R.  Cas.  105,  84  Ga.  698.  li 
S.  E.  Rep.  455. 

Plaintiff  started  to  a  depot,  but  to  tave  dis- 
tance and  avoid  mud  walked  for  a  distance 
on  defendant's  track,  where  it  ran  parallel 
with  the  track  of  another  company.  As  he 
neared  the  depot  a  train  on  the  other  road 
came  in,  making  considerable  noise  by  ring- 
ing a  bell  and  letting  off  steam,  which  at- 
tracted plaintifl's  attention.  Immediately 
behind  this  train  a  construction  train  sud- 
denly appeared  on  defendant's  track,  going 
ill  the  same  direction.  Whether  plaintiff 
did  not  hear  the  approach  of  the  construc- 
tion train  on  account  of  the  noise,  and 
whethet'  the  engineer  gave  a  signal,  except 
just  before  plaintiff  was  struck,  or  whether 
he  made  any  special  effort  to  avoid  running 
over  plaintiff,  were  not  clear  from  the  evi- 
dence. Held,  that  the  question  of  his  neg- 
ligence was  for  the  jury.  Crow  v.  Wabash, 
St.  L.  6-  P.  R.  Co..  23  Mo.  App.  357.— Re- 
VIEWING  Bell  V.  Hannibal  &  St.  J.  R.  Co., 
86  Mo.  S99. 

Plaintiff,  a  boy  fourteen  years  old,  was  in- 
jured while  crossing  the  track  to  get  water 
from  a  hydrant.  There  was  evidence  that 
the  engineer  saw  him  too  feet  away,  ap- 
proaching on  a  plank  beside  the  track, 
intended  for  use  of  the  railroad  men  only, 
but  saw  no  more  of  him  until  after  the  in- 
jury. Held,  that  the  question  of  contribu- 
tory negligence  was  for  the  jury.  Corcoran 
v.  Neiv  York  El.  R.  Co.,  19  Hun  (N.  Y.)  368. 

Plaintiff  and  her  husband  were  walking 
on  a  track  when  they  discovered  an 
engine  about  900  feet  behind  them.  They 
were  about  1 50  feet  from  a  platform  where 
they  could  get  off  the  track.  By  reversing 
the  engine  the  engineer  could  easily  have 
avoided  running  them  down.  There  was 
low  marshy  ground  on  each  side  of  the 
track  «nd  a  ditch  filled  with  water.  Held, 
that  it  was  a  question  for  the  jury  what 
they  might  have  done  to  avoid  being  run 
over,  and  whether  they  were  justified  in 
remaining  on  the  track  and  attempting  to 
reach  the  platform  rather  than  to  jump  in 
the  ditch  or  to  adopt  other  means  for  their 


^wmmmr 


1162 


TRESPASSERS,  INJURIES  TO,  116,  11«, 


safety.  Renter  v.  Lotig  Island  Ji.  Co.,  15 
A';  Y.  S.  R.  884.  I  N.  V.  Supp.  124,  48  Hun 
352;  affirmed  in  ill  N.Y.  669,  83  A''.  Y.  S. 
R.  994.  21  A^.  E.  Rep.  1 1 16. 

Plaintiff  undertook  to  ride  across  defend- 
ant's track  at  a  foot  crossing,  but  his  horse 
caught  his  foot  by  reason  of  a  defectively 
driven  spike,  and  plaintiff  could  not  get  him 
oh'  in  time  to  avoid  a  collision  with  a  car. 
Those  in  charge  of  the  car  were  called 
on  to  stop  when  more  than  100  yards 
away.  Held,  that  the  issue  of  contributory 
negligence  should  have  been  left  io  the 
jury.  Lay  v.  Richmond  <S-  D.  R.  Co.,  42 
Am.  &*  Eng.  R.  Cas.  1 10,  106  N.  Car.  404, 
II  S.  E.Rep.  4/2 

The  mere  fact  that  a  person  was  a  tres- 
passer upon  a  track  at  the  time  he  was  in- 
jured does  not  necessarily  constitute  a  bar 
to  his  recover  for  an  injury.  The  fact, 
however,  constitutes  contributory  negli- 
gence to  be  considered  by  the  jury.  Patton 
V.  East  Tenn.,  V.  &*  G.  R.  Co.,  48  Am.  6- 
Eng.  R.  Cas.  581,  89  Tettn.  370,  15  .9.  W. 
Rep.  919.— Approving  Easf  Tenn.,  V.  &  G. 
R.  Co.  V.  Fain,  12  Lea  (Tenn.)  41. 

116.  CoiiiparatiTe  nei^lisrence  — 
Imputed  uegligence.— Where  the  serv- 
ants of  a  company  have  been  guilty  of 
gross  negligence  or  of  wanton  and  wilful 
misconduct,  and  a  trespasser  on  its  track  of 
slight  contributory  negligence  only,  the  lat- 
ter is,  nevertheless,  in  case  of  injury,  pre- 
eluded  from  recovering.  The  doctrine  of 
comparative  negligence  has  no  application 
in  Indiana.  Terre  Haute  *•  /.  R.  Co,  v. 
Graf..  <,  12  Am.  &*  Eng.  R.  Cas.  77,  95 
Ind.  zj6,  48  Am,  Rep.  719.— Reviewing 
Pennsylvania  Co.  v.  Sinclair,  62  Ind.  301 ; 
Indianapolis  &  V.  R.  Co.  v.  McClaren,  62 
Ind.  566. 

Plaintiff  and  another  were  injured  by  a 
collision  while  driving  in  a  wagon,  engaged 
in  an  employment  in  which  they  had  a  com- 
mon interest.  They  were  driving  at  night 
on  a  highway  where  two  tracks  were  laid, 
where  there-was  suflicient  passage  on  either 
side  of  the  tracks.  The  companion  was 
holding  the  lines,  but  plaintiff  was  fully 
aware  of  the  danger  of  driving  on  the  track, 
but  made  no  objection.  Held,  that  he  was 
chargeable  with  the  negligence  of  his  com- 
panion, and  could  not  recover.  Donnelly  v. 
Brooklyn  City  R.  Co.,  34  Am,  ^  Eng.  R, 
Cas.  103,  109  N.  Y.  16,  15  AT.  E.  Rep.  733, 
14  A'^.  Y.S.  R.  29,  II  Cent,  Rep,  875;  revers- 
/ly  39  Huh  6r7,  mem. —  DISTINGUISHING 


Robinson  v.  New  York  C.  &  H.  R.  R.  Co., 
66  N.  Y.  II ;  Dyer  v.  Erie  R.  Co.,  71  N.  Y. 
228;  Masterson  v.  New  York  C.  &  H.  R.  R. 
Co.,  84  N.  Y.  247. 

110.  Trespasser's  negligence  In 
mitigation  of  damages.  —  Under  the 
Georgia  statute  giving  a  right  to  the  re- 
covery cf  partial  damages  from  a  company 
where  a  person  injured  has  been  guilty  of 
contributory  negligence,  plaintiff  cannot  re- 
cover if  he  has  trespassed  upon  the  track 
an(f  been  grossly  negligent  in  failing  to  an- 
ticipate and  look  out  for  the  approach  of 
trains.  Central  R.  <S-  S,  Co.  v.  Smith,  34 
Am.  6-  Eng.  R,  Cas,  i,  78  Ca.  694,  3  S.  E. 
Rep.  397. 

Where  the  evidence  shows  that  plaintiff 
went  upon  a  track  for  the  purpose  of  going 
to  %  house  200  yards  distant ;  that  he  could 
have  reached  his  destination  by  either  of 
two  roads  which  ran  along  the  different 
sides  of  the  railroad ;  that  along  each  side 
of  the  track  there  were,  in  addition,  smooth 
ways  7  and  10  feet  wide  respectively ;  that  he 
failed  to  exercise  proper  care  by  looking  and 
listening  for  the  approach  of  the  train,  he  is 
guilty  of  gross  negligence  which  precludes 
recovery,  although  the  employes  in  charge 
of  the  train  failed  to  give  proper  signals,  to 
check  it  at  public  crossings,  and  ran  it  at 
too  high  a  rate  of  speed ;  and  under  such 
circumstances  he  has  no  right  of  recovery 
under  the  Georgia  statute  authorizing  a 
verdict  of  partial  damages  where  a  person 
injured  by  a  company  has  been  guilty  of 
contributory  negligence.  Smith  v.  Central 
R.  6-  B,  Co.,  41  Am.  &>  Eng.  R.  Cas.  490, 
82  Ga.  801, 10  5".  E.  Rep.  1 11.— Distinguish- 
ing Western  &  A.  R.  Co.  v.  Main,  64  Ga. 
649 ;  Western  &  A.  R.  Co.  v,  Jones,  65  Ga. 
631 ;  Hankerson  v.  Southwestern  R.  Co.,  S9 
Ga.  593  ;  Vickers  v.  Atlanta  &W.  P.  R.  Co., 

64  Ga.  306 ;  Eraser  v.  Charleston  &  S.  R.  Co., 
7S  Ga.  222 ;  Atlanta  &  W.  P.  R.  Co.  v.  Wyly, 

65  Ga.  120 ;  Central  R.  Co.  v  Freeman,  66 
Ga.  170;  Cook  V.  Western  &  A.  R.  Co.,  69 
Ga.  619 ;  Georgia  R.  Co.  v.  Pittman,  73  Ga. 
325  ;  Redding  v.  East  Tenn.,  V.  &  G.  R.  Co., 
74  Ga.  385 ;  Georgia  R.  Co.  v.  Carr,  73  Ga. 
557  ;  Brunswick  &  W.  R.  Co.  v.  Hoover,  74 
Ga.  429 ;  Georgia  R.  Co.' v.  Williams,  74  Ga. 
723;  Western  &  A.  R.  Co.  v.  Meigs,  74  Ga. 
857 ;  Jackson  v.  Georgia  R.  Co.,  77  Ga.  82. 

Although  a  person  is  injured  by  a  train 
while  unlawfully  on  the  track,  or  while  con- 
tributing to  the  injury  by  his  own  careless- 
ness, yet   if  the  injur}'  might    have  been 


i: 


TRESPASSERS,  INJURIES  TO,  117-120. 


1163 


R.  R.  v>Of, 
:o..  71  N.  Y. 
&  H.  R.  R. 

Igence    in 

-  Under  the 
t  to  the  rc- 
1  a  company 
:en  guilty  of 
fl  cannot  re- 
>n  the  track 
ailing  to  an- 
approach  of 
'.  Smith,  34 
694,  3  S.  E. 

that  plaintiff 
>oseof  going 
hat  he  could 
by  either  of 
rhe  different 
ng  each  side 
ition,  smooth 
ively ;  that  he 
^looking  and 
ir  train,  he  is 
ch  precludes 
£s  in  charge 
>er  signals,  to 
and  ran  it  at 
\  under  such 
t  of  recovery 
uthorizing  a 
lere  a  person 
:en  guilty  of 
'th  V.  Central 
R.  Cas.  490, 
)ISTINGUISH- 

Main,  64  Ga. 
[ones.  65  Ga. 
ern  R,  Co.,  59 
W.  P.  R.  Co., 
)n  &  S.  R.  Co., 
.  Co.  7A  Wyly, 

Freeman,  66 
A.  R.  Co.,  69 
ttman,  73  Ga. 
.  &  G.  R.  Co., 

Carr,  73  Ga. 
u.  Hoover,  74 
lliams,  74  Ga. 
Meigs,  74  Ga. 
o.,  77  Ga.  82. 
red  by  a  train 
or  while  con- 
own  careless- 
It    have  been 


avoided  by  the  use  of  ordinary  care  and 
caution  by  the  company,  it  will  be  liable  in 
dam;iges.  the  negligence  of  the  party  in- 
jured being  taken  into  consideration  by 
way  of  mitigation  of  damages.  East  Tenn,, 
V.  S*  G.  R.  Co.  V.  Fain,  19  Am,  &»  Eng.  R. 
Cas.  102,  12  Z#a  {Tinn.)  35.  —  Distin« 
GUISHED  IN  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Hull,  41  Am.  &  Eng.  R.  Cas.  495,  88  Tenn. 
33,  12  S.  W.  Rep.  419 ;  East  Tenn.,  V.  &  G. 
R.  Co.  V.  Aiken,  89  Tenn.  245. 

The  failure  of  a  trespasser  upon  a  track  to 
look  and  listen  for  trains  may  be  so  far  ex- 
cused as  to  prevent  an  absolute  bar  to  his 
suit,  but  not  to  exonerate  him  from  con- 
tributory negligence,  to  be  considered  in 
mitigation  of  damages,  when  he  was  unex- 
pectedly struck  and  injured  by  detached 
cars  moving  by  impetus  and  gravitation  iust 
behind  a  regular  train  to  which  he  had  sur- 
rendered the  track,  having  then  resumed 
his  journey,  and  when  it  appears  that  he  was 
crossing  a  bridge,  and  probably  could  not 
have  heard  the  approach  of  the  cars  on  ac- 
count of  the  noise  of  an  adjacent  waterfall. 
Patton  V.  East  Tenn.,  V.  &-  G.  R.  Co.  48 
Am.  &*  Eng.  R.  Cas.  581,  89  Tenn.  370.  is 
i;  W.  Rep.  919. 

IV.  PBOGEDTJBE 
I.  Evidence. 

117.  Admissibility.  —  The  testimony 

of  one  who  had  for  fourteen  years  been  in 
defendant's  employment  as  fireman,  engi- 
neer, brakeman,  and  conductor,  and  who,  at 
the  iime  of  the  injury  complained  of,  was  a 
conductor  on  the  branch  of  defendant's  road 
where  the  injury  occurred,  to  the  effect  that 
brakemen  were  subject  to  the  orders  of 
conductors,  and  that  conductors'  orders  to 
brakemen  were  to  eject "  respassers  from  the 
trains,  and  that  such  were  the  orders  of 
the  conductor  to  the  brakeman  who  did  the 
wrong  complained  of,  was  competent  to 
show  the  authority  of  the  brakeman  to  re- 
move a  trespasser  from  a  train,  and  so  was 
the  testimony  of  other  witnesses  that  they 
had  many  times  seen  brakemen  eject  tres- 
passers from  trains.  Marion  v.  Chicago,  R. 
1. 4-  P.  R.  Co.,  64  Iowa  568, 21  N.W.  Rep.  86. 
In  an  action  against  a  company  for  caus- 
ing the  death  of  a  trespasser  upon  its  track, 
evidence  tending  to  show  that  the  accident 
might  have  been  prevented  had  the  com- 
pany used  certain  improved  air  brakes  in 
general  use  on  railways  is  not  admissible. 


AfcKenna  v.  New  York  C.  &*  H.  R.  R.  Co., 
8  Daly  {N.  K.)  304. 

Although  Wis.  Rev.  St.,  §  18!  i,  makes  it 
unlawful  for  a  person  not  connected  with  or 
employed  upon  a  railroad  to  walk  along 
the  track  thereof  "except  when  the  same 
shall  be  laid  along  public  roads  or  streets," 
yet  where  the  question  is  whether  a  person 
injured  while  walking  upon  a  track  was 
guilty  of  a  want  of  ordinary  care,  it  is  error 
to  reject  evidence  showing  that  many  per* 
sons  had,  for  years,  been  in  the  habit  of 
passing  up  and  down  the  same  pathway  on 
which  the  injured  person  was  passing. 
Townley  v.  Chicago,  M.  &*  St.  P.  R.  Co.,  4 
Am.  &*  Eng.  R.  Cas.  562,  53  Wis.  626.  il 
N.  W.  Rep.  55. 

118.  Materiality.— A  train  at  a  station 
covered  both  a  public  crossing  and  what 
was  called  the  depot  crossing.  Plaintiff,  a 
boy,  attempted  to  go  to  the  station  on 
the  depot  crossing,  but  finding  the  way 
closed  started  along  the  side  of  the  train, 
intending  to  pass  around  the  engine,  but  be- 
fore he  had  passed  it  the  train  started  and 
he  was  injured  by  falling  and  throwing  his 
hand  on  the  track.  Held,  that  the  fact  that 
the  company  did  not  make  an  opening  at 
the  public  crossing  was  immaterial.  Bark- 
ley  v.  Missouri  Pac.  R.  Co.,  96  Mo.  367,  9  S. 
fV.  Rep.  793. 

110.  Presumptions.  —  No  presump- 
tion of  fault  arises  against  a  company  from 
a  person  being  injured  on  the  track ;  on  the 
contrary,  it  is  for  the  person  injured  to  show 
that  he  had  a  lawful  right  to  be  there,  and 
to  enable  him  to  claim  damages  he  must 
also  show  that  the  company  was  guilty  of 
some  fau?t,  neglect,  or  imprudence  whereby 
the  injury  was  caused.  Rcy  v.  Grand 
Trunk  R.  Co.,  i  Montr.  L.  R.  353. 

120.  Weight  and  sufficiency.— The 
rate  of  speed,  the  arrangement  of  tracks, 
the  meeting  of  trains,  and  the  absence  of  a 
fence  are  not  circumstances  which  are  enti- 
tled to  much  more  weight  when  combined 
than  when  taken  singly ;  and  so  far  as  they 
do  strengthen  each  other  they  are  affected 
by  the  fatal  objection  that  the  supposed 
duty  has  for  its  sole  object  the  protection 
of  wrong-doers,  or  at  least  of  persons  who 
have  no  excuse  for  being  in  the  way  of  pass- 
ing trains.  Nolan  v.  New  York,  N.  If.  &* 
H.  R.  Co.,  25  Am.  &»  Eng.  R.  Cas.  342,  53 
Conn.  461,  4  Atl.  Rep.  106. 

Evidence  deemed  insufficient  to  show 
negligence  on  the  part  of  defendant,  it  ap- 


1164 


TRESPASSERS,  INJURIES   TO,  131-123. 


i-^^ 


pearing  that  the  engineer  gave  proper  sig- 
nals, and  attempted  to  stop  when  it  became 
apparent  that  plaintiff  would  not  get  off  the 
track.  Johnson  v.  Trundale,  46  Minn.  345, 
48  AT.  W.Rep.  1 1 36. 

2.  Instructions. 

121.  Proper.  — Upon  the  claim  made 
by  defendant  that  from  the  evidence  it  ap- 
peared that  plaintiff's  intestate  was  a  tres- 
passer upon  its  tracks  when  struck  by  a  loco- 
motive, the  court  charged  that,  if  the  jury 
should  so  find,  a  recovery  could  not  be  had 
unless  it  was  also  found  that  the  engineer 
in  charge  saw  her  in  time  to  have  avoided 
the  accident,  and  was  then  guilty  of  such 
gross  negligence  in  not  attempting  to 
avoid  a  collision  as  would  evince  a  recKless 
disregard  of  human  life.  Held,  correct. 
Studley  V.  St.  Paul  &»  D.  R.  Co.,  48  Minn. 
249,  ji  N.  IV.  Rep.  115. 

Where  a  person  is  killed  in  attempting  to 
cross  a  track  where  there  is  no  crossing,  it 
is  proper  to  instruct  the  juiy  that  he  was  a 
trespasser  upon  the  land  of  the  company; 
that  there  was  no  obligation  to  blow  the 
whistle  or  ring  the  bell  to  notify  him,  and 
that  defendant  owed  to  him  no  obligation 
or  protection  except  that  obligation  which 
belongs  ordinarily  to  the  business  of  life. 
Collis  V.  New  York  C.  &*  H.  R.  R.  Co.,  71 
Hun  {N.  Y.)  504.  —  QlTOTiNO  McAlpin  v. 
Powell,  70  N.  Y.  132. 

122.  Erroneous,  generally.— An  in- 
struction that,  although  the  person  injured 
was  unlawfully  upon  the  track,  "  the  com- 
pany will  be  responsible  if  its  employes  are 
guilty  of  gross  or  reckless  negligence,  and 
could  have  avoided  the  accident  by  the  ex- 
ercise of  reasonable  and  ordinary  care  and 
watchfulness  "  is  erroneous  under  any  issue, 
the  company  being  responsible  only  for  wil- 
fulness. Chicago  &»  F..  I.  R.  Co,  v.  Hedges, 
25  Am.  &■>  Eng.  R.  Cas.  550,  105  /nd.  398,  7 
A'^.  E.  Rep.  801. 

A  boy  of  sixteen,  of  average  intelligence, 
who  had  all  his  life  lived  near  a  railroad,  lay 
down  upon  the  trestlework  of  a  railroad 
bridge  which  was  half  a  mile  fro>n  a  public 
crossing  and  remained  there  some  three 
quarters  of  an  hour.  A  train  running  thirty 
to  thirty-five  miles  an  hour  on  a  down  grade 
sounded  its  whistle  on  approaching  the  pub- 
lic crossing,  and  then  continued  on  towards 
the  bridge.  The  engineer  first  saw  the  boy 
when  from 300 to  5oofeetoff,and  immediately 


sounded  the  whistle  and  applied  the  brakes. 
The  train,  however,  ran  over  and  killed  the 
boy  and  went  on  some  distance  beyond  him 
before  it  could  be  stopped.  The  court 
charged  that  if  the  employes  were  negligent 
in  not  discovering  the  boy  in  time  to  avert 
the  disaster  the  company  was  liable,  not- 
withstanding the  negligence  of  the  boy. 
Held,  that  the  instruction  was  error ;  that 
the  company  was  not  liable  unless  its  serv- 
ants, after  discovering  the  perilous  condi- 
tion of  the  boy,  might  by  the  exercise  of 
ordinary  diligence  and  care  have  prevented 
the  injury.  Louisville  &*  N.  R.  Co.  v. 
Greene,  (Ky.)  19  Am.  &*  Eng.  R.  Cas.  9J.— 
Quoting  Paducah  &  M.  R.  Co.  v.  Hoehl, 
12  Bush  (Ky.)  46.  Reviewing  Kentucky 
C.  R.  Co.  v.  Dills,  4  Bush  593. 

In  an  action  against  a  company  for  an 
injury  sustained  by  plaintiff  in  consequence 
of  being  struck  and  run  over  by  a  locomo- 
tive and  tender,  while  walking  upon  the . 
track  in  a  city  street,  a  charge  to  the  jury 
that  defendant  was  bound  to  use  the  utmost 
care  and  diligence  to  avoid  collision  with 
font  passengers,  and  that  ordinary  care  was 
not  sufiicient  to  exonerate  it  from  liability 
for  an  injury  sustained  by  a  collision,  was 
erroneous.  Brand  v.  Schenectady  &*  T.  R. 
Co.,  8  Bari.  (N.  Y.)  368.  —  Approved  in 
Baltimore  &  O.  R.  Co.  v.  Breinig,  25  Md. 
378.  Disapproved  in  Frick  v.  St.  Louis. 
K.  C.  &  N.  R.  Co.,  8  Am.  &  Eng.  R.  Cas. 
260,  75  Mo.  595.  Quoted  in  New  Orleans, 
J.  &  G.  N.  R.  Co.  V.  Bailey,  40  Miss.  395. 
Reviewed  in  Goddard  v.  Grand  Trunk  R. 
Co. ,  57  Me.  202 ;  Terry  v.  New  York  C.  R. 
Co.,  22  Barb.  574. 

123.  Assuming  facts— Opinions  of 
Judge.  —  A  judge  may  not  convey  to  the 
jury  his  opinion  as  to  any  material  fact  at 
issue  between  the  parties,  but  there  is  no 
error  in  stating  to  the  jury  the  undisputed 
facts  that  defendant,  on  failure  to  pay  his 
fare  when  demanded,  refused  to  leave  the 
train,  and  on  being  ejected  attempted  to 
board  the  train,  and,  as  matter  of  law,  that 
this  conduct  was  unlawful.  Moore  v.  Colum- 
bia &*  G.  R.  Co.,  38  So.  Car.  i,  16  5,  E. 
Rep.  781. 

A  company  has  the  right  to  run  special 
trains,  at  such  times,  on  such  terms,  and  at 
such  increased  rates  of  speed,  within  the 
limits  of  prudence  and  safety  to  its  pas- 
sengers, as  the  necessities  or  convenience  of 
its  business  may  require;  and  lience  n  charge 
of  the  court  is  erroneous  which  assumes  or 


TRESPASSERS,  INJURIES  TO,  124-126. 


1IG5 


I  the  brakes, 
id  killed  the 
beyond  him 

The  court 
re  negligent 
ime  to  avert 

liable,  not- 
>f  the  boy. 

error;  that 
ess  its  serv- 
ilous  condi- 

exercise  of 
re  prevented 
,  R.  Co.  V. 
?.  Cas.  95,— 
!o.  V,  Hoehl, 
G  Kentucky 

pany  for  an 
consequence 
y  a  locomo- 
g  upon  the 
;  to  the  jury 
e  the  utmost 
ollision  with 
ary  care  was 
rom  liability 
ollision,  was 
fdy  &*  T.  J? 
PPROVED  IN 

inig,  25  Md. 
/.  St.  Louis, 
)ng.  R.  Cas. 
few  Orleans, 
D  Miss.  395. 
d  Trunk  R. 
York  C.  R. 

[linlons  of 

nvey  to  the 
erial  fact  at 

there  is  no 

undisputed 
;  to  pay  his 
:o  leave  the 

tempted  to 
of  law,  that 
}re  V.  Co/urn- 

I,  16  .S".  E. 

run  special 
Erms,  and  at 

within  the 

to  its  pas- 
ivenience  of 
nee  a  charge 

assumes  or 


implies  that  the  running  of  trains  ofl  sched- 
ule  time,  or  at  increased  rates  of  speed,  is, 
P*r  St,  negligence.  East  Tenn.  &*  W.  N. 
C.  R.  Co.  V.  Winters,  85  Tenn.  240,  1  S.  W. 
R*P.  790. 

In  an  action  by  one  struck  by  a  train 
while  intoxicated  and  walking  on  the  track, 
an  instruction  that  "if  plaintiff  was  guilty 
of  some  slight  degree  of  negligence  not 
amounting  to  a  want  of  ordinary  care,"  and 
was  injured  in  consequence  of  want  of  ordi- 
nary care  on  the  part  of  defendant's  agents, 
he  could  recover,  is  reversible  error,  as  as- 
suming his  negligence  to  be  slight  only. 
Houston  &•  T.  C.  R.  Co.  v.  Smith,  52 
Tex.  178. 

124.  Misleading.— It  is  the  duty  of  a 
locomotive  engineer  to  keep  a  steady  look- 
out ahead  for  obstructions  on  the  track,  so 
far  as  consistent  with  the  discharge  of  his 
other  duties ;  and  a  charge  which  instructs 
the  jury  that  it  his  duty  "  to  keep  a  steady 
lookout,"  without  limitation  as  to  other 
conflicting  duties,  is  not  erroneous,  though 
it  may,  without  explanation,  tend  to  mislead 
the  jury.  Western  R.  Co.  v.  Lazarus,  88 
Ala.  4S3,  6  So.  Rep.  877.  Mobile  6*  G.  R. 
Co.  V.  Caldwell,  83  Ala.  196,  3  So.  Rep.  445. 

125.  Xot  correctly  statiug  the  law. 
— Where  the  action  is  to  recover  for  the 
death  of  one  who  was  unlawfully  on  the 
track,  an  instruction  to  the  effect  that  "  de- 
fendant is  liable  in  this  case  only  if  its 
servants  failed  to  exercise  ordinary  care  to 
prevent  the  injury,  after  they  became  aware 
of  the  danger  to  which  the  deceased  was 
exposed,  or  after  they  might  have  become 
aware  thereof  by  the  exercise  of  ordinary 
care,"  is  error.  Under  such  circumstances 
the  liability  should  be  limited  to  negligence 
after  the  exposed  and  dangerous  position  of 
the  injured  party  comes  to  the  knowledge 
of  those  in  charge  of  the  train.  Rine  v. 
Chicago  &»  A.  R.  Co.,  25  Am.&*Eng.  R. 
Cas.  545,  iZMo.  392.— Followed  in  Brooks 
V.  Hannibal  &  St.  J.  R.  Co..  3$  Mo.  App. 
571.  Quoted  and  distinguished  in 
Dunkman  v.  Wabash,  St.  L.  &  P.  R.  Co..  95 
Mo.  232, 10  West.  Rep.  396, 4  S.  W.  Rep.  670. 

126.  Prayers  properly  reftised.— 
In  an  action  for  running  over  a  slave  at  a 
place  not  a  public  crossing,  the  court  prop- 
erly refused  to  instruct  that  the  owner  of 
the  slave  was  not  entitled  to  recover  unless 
the  defendant  railroad  was  guilty  of  gross 
negligence.  Holmtt  v.  C*ntral  R.  &*  B.  Co., 
37  Ga.  $93. 


A  request  to  ciiarge  that  a  company  is  not 
liable  for  an  injury  to  a  trespasser  upon  its 
track  caused  by  an  engine,  unless  it  is  shown 
that  the  acts  uf  tlie  cumpany's  servants  in 
charge  of  the  engine  were  wanton  and  mali- 
cious, or  there  was  such  gross  negligence 
on  their  part  as  was  tantamount  to  wilful- 
ness, is  rightfully  refused.  In  such  cases, 
the  servants  are  required  to  use  a  degree  of 
care  which  amounts  to  more  than  the  mere 
absence  of  wantonness,  malice,  or  reckless 
disregard  of  another's  safety.  W-.tern  &* 
A.  R.  Co.  v.  Meigs,  74  Ga.  857.— QUOTINO 
Baston  v.  Georgia  R.  Co.,  60  Ga.  340.  Re- 
viewing Central  R.  Co.  v.  Brinson.  70 
Ga.  207. 

An  instruction  is  properly  refused  which 
directs  the  jury  that  unless  the  company's 
servants  failed  to  make  use  of  the  means 
and  appliances  in  their  power  to  avert  the 
accident  after  they  became  aware  of  the 
danger  pf  deceased,  the  finding  should  be 
for  the  defendant.  Such  instruction  is 
proper  where  the  person  injured  is  a  tres- 
passer on  a  railroad  track  and  the  circum- 
stances are  such-  that  the  company  has  both 
the  right  to  have  and  the  right  to  expect  a 
clear  track.  Eswin  v.  St.  Louis,  I.  M.  &*  S. 
R.  Co.,  3S  Am.  &*  Eng.  R.  Cas.  390,  96  Mo. 
290,  9  S.  W.  Rep,  577.  Crow  v.  Wabash, 
St.  L.  &»  P.  R.  Co.,  23  Mo.  App.  357. 

The  court  instructed  the  jury  that  "  if  as 
soon  as  the  engineer  saw  plaintif!  fall  upon 
the  track  or  discovered  that  for  some 
reason  she  could  not  or  might  not  get  out 
of  the  way  in  time,  he  made  diligent  use 
of  all  the  means  at  his  command  in  order 
to  stop  the  train,  and  avoid  injuring  plain- 
tiff, he  did  all  he  was  required  to  do  and 
was  guilty  of  no  negligence."  Held,  that 
in  view  of  this  charge,  and  of  plaintiff's 
condition,  it  was  not  error  to  refuse  to 
charge  that  the  engineer  had  a  right  to 
assume  that  plaintiff  would  step  aside. 
Spooner  v.  Delaware,  L.  &*  W.  R.  Co.,  39 
Am.  *•  Eng.  R.  Cas.  599,  1x5  A':  K.  22.  21 
N.  E.  Rep.  696,  23  A^.  Y.  S.  R.  554;  affirm- 
itig  41  Hun  643,  mem.,  i  N.  V.  S.  R.  558. 

In  refusing  to  charge  that  a  man  who 
walks  upon  a  track,  except  at  a  road  cross- 
ing, does  so  at  his  peril,  the  circuit  judge 
committed  no  error.  Nor  was  there  error 
in  refusing  to  charge  that  "  if  the  deceased 
was  upon  the  track  of  defendant  without 
lawful  authority,  and  using  it  for  his  own 
convenience,  he  was  a  trespasser,"  and  that 
"  the  company  was  under  no  obligation  to 


1166  TRESPASSING  ANIMALS— TRESPASS  TO  TRY  TITLE,  1-4. 


H3 


m 


'  'Hi  iy 


Uke  precautions  against  possible  injuries 
to  trespassers."  Carttr  v.  Columbia  6*  G.  R. 
Co^  15  Am.  &»  Eng.  R.  Cas.  414,  19  S«.  Car. 
20,  45  Am.  Rep.  754. 

It  is  not  error  to  refuse  to  charge  that 
"  a  railroad  company  is  not  liable,  where  no 
evil  intent  or  wanton  conduct  appears,  for 
injuries  by  its  trains  to  intruders  who  un- 
dertake to  use  the  track  for  some  business 
purpose  of  their  own,  or  to  persons  who 
are  unlawfully  walking,  remaining  upon,  or 
crossing  its  track."  East  Tenn.,  V.  &*  G.  R. 
Co.  V.  Fain,  19  Am.  &*  Eng:  R.  Cas,  102,  13 
Lta  (Tenn.)  35.— Approved  in  Patton  v. 
East  Tenn.,  V.  &  G.  R.  Co..  89  Tenn.  370. 

Where  a  person  is  injured  through  the 
unsafe  condition  of  tracks  laid  upon  a  pub- 
lic street,  it  is  not  error  for  the  court  to 
refuse  to  instruct  the  jury  that  railroad 
companies  are  not  bound  to  use  the  highest 
degree  of  care  to  avoid  injuring  one  who 
may  possibly  trespass  upon  its  property, 
plaintiff  in  such  action  being  in  no  sense  a 
trespasser.  Gulf,  C.  &•  S.  F.  R.  Co.  v. 
Walker,  37  Am.  &*  Eng.  R.  Cas.  349,  70 
Tex.  136,  7  S.  W.  Rep.  831. 

Where  there  is  no  evidence  on  which  to 
base  a  theory  of  pure  accident,  and  the  proof 
shows  negligence,  either  upon  the  part  of  a 
passenger  in  alighting  from  a  train,  or  on 
the  part  of  the  carrier,  a  charge  to  the  effect 
that  if  plaintiff  stepped  carelessly  or  acci> 
dentally  on  or  near  the  edge  of  a  box  and 
a  fall  was  caused  thereby  the  jury  should 
find  for  defendant  is  properly  refused.  Mis- 
souri Pae.  R.  Co.  v.  IVortham.  37  Am.  &* 
Eng.  R.  Cas.  83,  73  Tex.  35,  3  L.  R.  A.  368, 
10  S.  fV.  Rep.  741. 


TRESFASsnra  animals. 

Liability  of  company  for  killing  or  injuring, 
see  Animals,  Injuries  to,  43-72; 
102-159. 

TRESPASS  TO  TRT  TITLE. 

1.  When  the  action  lies. — The  action 
of  trespass  to  try  title  will  lie  against  a  rail- 
way company  asserting  a  right-of-way  claim 
to  land.  Hays  v.  Texas  &*  P.  R.  Co.,  33  Am. 
&»  Eng.  R.  Cas.  103,  63  Tex.  397. 

This  action,  taking  the  place  of  the  com- 
mon-law action  of  ejectment,  may  be  used 
where  the  object  is  to  recover  possession  of 
land  unlawfully  withheld  from  the  owner, 
and  to  which  he  has  the  right  of  immediate 
possession,  whether  the  defendant  claint 


under  title  or  is  a  mere  trespasser.  Hays  v. 
Texas  &*  P.  R.  Co.,  23  Am.  &»  Eng.  R.  Cas. 
I03, 63  Tex.  397. 

In  a  suit  between  the  owner  of  the  soil 
and  a  railway  company  whose  title  to  an 
easement  over  the  land  is  without  founda- 
tion, and  which  is  a  trespasser,  the  owner  is 
entitled  to  dispossess  the  latter  altogether, 
and  the  action  of  trespass  to  try  title  is  the 
appropriate  remedy.  Texas  &»  P.  R.  Co.  v. 
Hays,  3  Tex.  App.  (Civ.  Cas.)  79. 

•2.  Necessary  title  and  possession 
in  plaintiff.  —  In  an  action  of  trespass  to 
try  title,  plaintiff,  pending  the  suit,  may  buy 
from  heirs  of  a  party  whose  undivided  in- 
terest plaintiff  had  claimed  through  a  defect- 
ive administration  sale,  and  such  purchase 
would  meet  the  plea  of  outstanding  title  to 
such  interest,  if  it  could  be  made  in  such 
case.  X'e_yes  v.  Houston  &*  G.N.R.  Co.,  50 
Tex.  169. 

In  an  action  of  trespass  to  try  title  posses* 
sion  alone  is  sufficient  in  behalf  of  plaintiff 
to  entitle  him  to  recover  against  a  mere 
trespasser.  Parker  v.  Ft.  Worth  &*  D.  C. 
R.  Co.,  71  Tex.  132,  8  S.  W.  Rep.  541.— FOL- 
LOW INO  Kolb  V.  Bankhead,  18  Tex.  239; 
Alexander  v,  Gilliam,  39  Tex.  228. 

Where  one  seeks  to  recover  in  trespass  to 
try  title  a  railway  which  extends  over  many 
miles,  upon  the  ground  of  possession  alone, 
he  should  go  further  with  his  allegations  and 
proof  than  mere  general  statements  which 
only  show  a  possession  that  might  not  in 
fact  extend  beyond  a  very  small  part  of  the 
line.  Sulphur  Springs  4-  M.  P.  R.  Co.  v. 
St.  Louis,  A.  &•  T.  R.  Co.,  2  7V;r.  Civ.  App. 
650,  22  5".  W.  Rep.  107,  23  S.  W.  Rep.  1012. 

3.  Condemning  after  Judgment.— 
Where  suit  by  trespass  to  try  title  is  brought 
against  a  railroad  company  for  land  over 
which  it  claims  an  easement,  in  which  judg- 
ment is  rendered  for  the  landowner,  and 
subsequently  proceedings  to  condemn  the 
right  of  way  are  instituted,  the  measure  of 
damages  is  the  value  of  the  land  at  the  time 
it  was  taken,  which  does  not  include  the 
value  of  the  improvements  placed  thereon 
by  the  railroad.  Hajfs  v.  Texas  &*  P.  R. 
Co.,  23  Am.  &*  Eng.  R.  Cas.  102,  62  Tex. 
397.  Texas  &*  P.  R.  Co.  v.  Hays,  3  Tex. 
App.  {Civ.  Cas.)  79. 

4.  Statute  of  limitations.  —  That  a 
railway  company  as  a  trespasser  occupied 
the  land  long  before  plaintiff  purchased  will 
not  affect  his  right  to  sue,  nor  will  naked 
poMcssion  of  the  right  of  way  over  the  land 


,  1-4. 

er.  Hays  v. 
Ing.  R.  Cat, 

'  of  the  soil 
title  to  an 
out  founda- 
Lhe  owner  is 
altogether, 
^  title  is  the 
P.  R.  Co.  V. 
I. 

[tossesBlon 
:  trespass  to 
lit,  may  buy 
(idivided  in- 
igh  a  defect- 
ch  purchase 
ding  title  to 
ade  in  such 
N.R.  Co.,  50 

title  posses* 
[  of  plaintiff 
linst  a  mere 
'tk  &-D.C. 
K  541.— FOL- 
[8  Tex.  339: 
38. 

n  trespass  to 
Is  over  many 
ession  alone, 
egations  and 
ments  which 
night  not  in 
II  part  of  the 
P.  R.  Co.  T. 
^x.  Civ.  App. 
V.  Rep.  IOI3. 
iderment.— 
tie  is  brought 
>r  land  over 
1  which  judg- 
downer,  and 
:ondemn  the 
e  measure  of 
d  at  the  time 

include  the 
aced  thereon 
xas  4*  P.  R. 

102,  63  Ttx. 
Hays,  3  Ttx. 

ns.  —  That  a 
iser  occupied 
urchased  will 
or  will  naked 
over  the  land 


TRESTLES. 


1167 


for  ten  years  bar  his  recovery.  Hays  v. 
Ttxas  *•  P.  R.  Co.,  33  Am.  &*  Etig.  R.  Cat. 
102, 62  Tex.  397.  Texas  6-  P.  R.  Co.  v.  Hays, 
3  Tex.  App.  {Civ.  Cat.)  79. 


TRESTLES. 

Contributory  negligence  in  crossing  in  front 
of  moving  train,  see  Employes,  Injuries 
TO,  324. 

Cost  of  filling  in  fiats  crossed  by,  as  an  ele- 
ment of  land  damages,  see  Eminent  Do- 
main, 677. 


Duty  of  carrier  m  to  constmction  mod  repair 

of,  see  Carriage  of  Passengers,  172. 
—  to  employes  as  to  safety  of,  see  EMPLOvfii^ 

Injuries  to,  61. 
Injuries  to  animals  on,  see  Animals,  Injuriis 

TO,  78. 
Liability  for  fiooding  lands  by,  see  Flooding 

Lands,  18. 
of  lessee  road  for  defects  in,  see  Leases, 

ETC.,  65. 

Persons  on,  when  deemed  trespassers,  see 

Trespassers,  Injuries  to,  6. 
Walking  on,  when  contributory  negligence. 

see  Trespassers,  Injuries  to,  101. 
When  subject  to  mechanic's  lien,  see  Liins, 

24. 


